EXHIBIT 99.10
________________________
PURCHASE AGREEMENT
DATED AS OF FEBRUARY 25, 1998
BY AND BETWEEN
PREMIER LASER SYSTEMS, INC.
AND
XXXXXXX XXXXX, M.D.
________________________
TABLE OF CONTENTS
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Page
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ARTICLE I DEFINITIONS................................................. 1
1.1 Defined Terms.................................................. 1
ARTICLE II PURCHASE AND SALE OF SHARES................................. 4
2.1 Purchase and Sale of Shares.................................... 4
2.2 Purchase Consideration......................................... 4
2.3 Closing Date................................................... 4
ARTICLE III REPRESENTATIONS AND WARRANTIES.............................. 5
3.1 Representations and Warranties of Premier...................... 5
3.2 Representations and Warranties of Seller....................... 7
ARTICLE IV COVENANTS................................................... 10
4.1 Covenant of the Seller......................................... 10
4.2 Covenants of Premier........................................... 10
4.3 Reasonable Best Efforts........................................ 10
ARTICLE V CONDITIONS TO CLOSING....................................... 11
5.1 Conditions to Obligation of Premier............................ 11
5.2 Conditions to Obligations of the Seller........................ 11
ARTICLE VI INDEMNIFICATION............................................. 12
6.1 Indemnification by Premier..................................... 12
6.2 Losses Net of Insurance, etc................................... 12
6.3 Termination of Indemnification................................. 13
6.4 Procedures Relating to Indemnification Under Article VI........ 13
6.5 Arbitration.................................................... 15
ARTICLE VII GENERAL PROVISIONS.......................................... 16
7.1 Termination of Purchase Agreement.............................. 16
7.2 Counterparts................................................... 17
7.3 Notices........................................................ 17
7.4 Governing Law.................................................. 18
7.5 Interpretation................................................. 18
7.6 Successors and Assigns......................................... 18
7.7 Entire Agreement; No Oral Waiver; Construction................. 19
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Page
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7.8 Severability.................................................. 19
7.9 No Third-party Rights......................................... 19
7.10 Remedies...................................................... 19
7.11 Further Assurances............................................ 20
7.12 Survival of Representations................................... 20
7.13 No Restrictions on Directors.................................. 20
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This Purchase Agreement ("Purchase Agreement") is made and entered
into as of February 25, 1998, by and between Premier Laser Systems, Inc., a
California corporation ("Premier") and Xxxxxxx Xxxxx, M.D. (the "Seller").
W I T N E S S E T H:
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WHEREAS, the Seller owns in the aggregate, and on the Closing Date (as
defined herein) the Seller will own, of record and beneficially, 50,000 shares
of Ophthalmic Imaging Systems, Inc., a California corporation (the "Company")
common stock, no par value (the "Common Stock") (including the associated
preferred share purchase rights (the "Rights")) issued pursuant to the Rights
Agreement, dated as of December 31, 1997, as amended (the "Rights Agreement"),
between Company and American Securities Transfer, Inc. (the "Rights Agent") (the
Rights together with the Common Stock constitute the "Shares");
WHEREAS, the Seller desires to sell, and Premier wishes to purchase,
the Shares upon the terms and subject to the conditions set forth herein;
NOW, THEREFORE, in consideration of the premises and the mutual
covenants herein contained, the parties hereto hereby agree as follows:
ARTICLE I
DEFINITIONS
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1.1 Defined Terms. Terms not otherwise defined herein shall have the
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following meanings:
"Acquisition Agreement" means the Stock Purchase Agreement by and between
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Premier and Company of even date herewith, as amended, supplemented or otherwise
modified from time to time in accordance with its terms.
"Affiliate" means, when used with respect to another Person, any Person who
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is, whether directly or indirectly, through one or more intermediaries,
controlling, controlled by or under common control with such Person.
"Beneficially Own" has the meaning given such term in Rule 13d-3 under the
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Exchange Act, as in effect on the date hereof. As used herein, the phrases
"beneficial ownership" and "beneficial owner" have correlative meanings.
"Business Combination" means (i) any merger, reorganization, share exchange
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consolidation, business combination, recapitalization, liquidation, dissolution
or similar transaction involving the Company, (ii) any purchase or sale of all
or any significant portion of the assets of the Company, (iii) any issuance or
other sale by the Company of any shares of Company Common Stock or (iv) any
issuance or other sale by the Company of securities representing 20% or more of
beneficial ownership of the Company or any of its Subsidiaries (as defined
herein).
"Business Day" means any day that is not a Saturday, Sunday or other day on
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which banks are required or authorized by law to be closed in California.
"Closing Date" means the earlier of (i) the second Business Day following
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satisfaction or waiver of the conditions set forth in Article V and (ii) such
other date and time as the parties shall otherwise mutually agree.
"Dollars" and "$" mean lawful currency of the United States of America.
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"Exchange Act" means the Securities Exchange Act of 1934, as amended.
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"Governmental Authority" means any foreign, federal, state or local
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government or any court, administrative agency or commission or other
governmental agency or authority, whether domestic or foreign.
"Lien" means any mortgage, pledge, hypothecation, assignment, deposit
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arrangement, encumbrance, lien (statutory ore other), charge or security
interest; or any preference, priority or other arrangement or preferential
arrangement of any kind or nature whatsoever (including, without limitation, any
conditional sale or other title retention agreement having substantially the
same economic effect as any of the foregoing).
"Material Adverse Effect" with respect to any Person means a material
-----------------------
adverse effect (i) on the financial condition, business, liabilities,
properties, assets or results of operations of such Person and its subsidiaries,
taken as a whole, or (ii) on the ability of such Person to perform its
obligations under or to consummate the transactions contemplated by this
Purchase Agreement.
"Person" means an individual, partnership, limited liability company,
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corporation, business trust, joint stock company, trust, unincorporated
association, joint venture, Governmental Authority or other entity of whatever
nature.
"Purchase Agreement" means this Purchase Agreement, as amended,
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supplemented or otherwise modified from time to time in accordance with its
terms.
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"Registration Rights Agreement" means the Registration Rights Agreement in
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the form of Exhibit "A" to be executed by and between Premier and the Seller on
the Closing Date.
"Restrictions" means, when used with respect to any specified security, any
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stockholders or other trust agreement, option, warrant, escrow, proxy, buy-sell
agreement, power of attorney or other contract, agreement or arrangement which
(i) grants to any Person the right to sell or otherwise dispose of or vote such
specified security or any interest therein or (ii) restricts the transfer of, or
the exercise of any rights or the enjoyment of any benefits by reason of, the
ownership of such specified security.
"Stock Component" means the quotient (rounded to the nearest 1/100,000)
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determined by dividing $0.25 by the average closing sales price for Premier
Common Stock (as hereinafter defined) as reported on The Nasdaq Stock Market,
Inc. ("NASDAQ") as published in The Wall Street Journal or, if not published
therein, an another authoritative source, for either (i) fifteen (15)
consecutive trading days (each, a "Trading Day") immediately preceding the
Closing Date or (ii) the thirty (30) consecutive Trading Days ending fifteen
(15) Trading Days prior to the Closing Date, whichever yields the lowest number
of shares of Premier Common Stock. Notwithstanding any other provision of this
Purchase Agreement, if Seller would have otherwise have been entitled to receive
a fraction of a share of Premier Common Stock (after taking into account all
shares tendered by Seller) he, she or it shall receive, in lieu thereof, cash in
an amount equal to the fractional part of the Premier Common Stock multiplied by
the "market price" of one share of Premier Common Stock, payable as part of the
Purchase Consideration. The "market price" of one share of Premier Common Stock
shall be the closing price of such common stock as reported on NASDAQ (as
published in the Wall Street Journal or, if not published therein, any other
authoritative source) on the last Trading Day preceding the Closing Date.
"Subsidiary" of any Person means another Person, an amount of the voting
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securities, other voting ownership or voting partnership interests of which is
sufficient to elect at least a majority of its board of directors or other
governing body (or, if there are no such voting interests, 50% or more of the
equity interests of which) is owned directly or indirectly by such first Person.
"Transactions" means the transactions described in Section 2.3(b).
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ARTICLE II
PURCHASE AND SALE OF SHARES
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2.1 Purchase and Sale of Shares. Upon the terms and subject to the
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conditions of this Purchase Agreement, Premier agrees to purchase from the
Seller, and the Seller agrees to sell to Premier, the Shares free and clear of
any Lien or Restriction created by the Seller (other than any Lien or
Restriction imposed pursuant to the terms of this Purchase Agreement) or
otherwise binding upon any such Shares for the Purchase Consideration (as
defined in Section 2.2 of Purchase Agreement).
2.2 Purchase Consideration. Premier shall pay to Seller in respect
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of each share of Company Common Stock sold and purchased hereunder (a) $1.75 net
in cash (the "Cash Consideration"); (b) that number of Premier Class A Common
Stock, no par value (the "Premier Common Stock"), equal to the Stock Component
(the "Stock Consideration"); (c) one Premier Class C Warrant (the "Class C
Warrant"), and (d) one Premier Class D Warrant (the "Class D Warrant" together
with the Class C Warrant, the "Warrants") (the Cash Consideration, the Stock
Consideration and the Warrants together constitute the "Purchase
Consideration").
2.3 Closing Date.
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(a) Unless this Purchase Agreement shall have been terminated and
the transactions herein contemplated shall have been abandoned pursuant to
Section 7.1(a) and subject to the satisfaction or waiver of the conditions set
forth in Article V, the closing (the "Closing") of the transactions contemplated
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by Section 2.1 will take place on the earlier of (i) the second Business Day
following satisfaction or waiver of the conditions set forth in Article V and
(ii) such other date and time as the parties shall otherwise mutually agree (in
either event, the date of Closing being referred to herein as the "Closing
Date").
(b) At the Closing, the following actions (collectively, the
"Transactions") shall occur:
(i) Premier shall pay or cause to be paid the aggregate Cash
Consideration to or for the account of the Seller by wire transfer to such
bank account (the "Designated Bank Account") as the Seller shall designate
in writing prior to the Closing Date;
(ii) At the effective time of the Closing, Premier shall issue
shares of Premier Common Stock to the Seller as directed by the Seller in
writing prior to the Closing Date;
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(iii) At the effective time of the Closing, Premier shall issue the
Warrants (in the form attached hereto as Exhibits "B" and "C") to the
Seller as directed by the Seller in writing prior to the Closing Date;
(iv) The parties shall execute and deliver, the Registration Rights
Agreement;
(v) The Seller shall deliver or cause to be delivered to Premier or
its designee such documents as Premier may reasonably request, including
certificates for all Shares to evidence the transfer to Premier of good and
marketable title in and to all of the Shares owned by the Seller free and
clear of any Lien or Restriction on such Shares (other than any Lien or
Restriction imposed pursuant to the terms of this Purchase Agreement) or
the applicable federal or state securities laws, and
(vi) Each party shall take such other actions, and shall execute
and deliver such other instruments or documents, as shall be required under
Article V.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
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3.1 Representations and Warranties of Premier. Premier represents
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and warrants to the Seller as of the date hereof and as of the Closing Date as
follows:
(a) Organization, Standing and Corporate Power. Premier is duly
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organized, validly existing and in good standing under the laws of the State of
California and has the requisite corporate power and authority to carry on its
business as now being conducted. Premier is duly qualified or licensed to do
business and is in good standing in each jurisdiction in which the nature of its
business or the ownership or leasing of its properties makes such qualification
or licensing necessary, other than in such jurisdictions where the failure to be
so qualified or licensed (individually or in the aggregate) could not reasonably
be expected to have a material adverse effect with respect to Premier.
(b) Corporate Authorization. The execution, delivery and performance
by Premier of this Purchase Agreement and the consummation by Premier of the
transactions contemplated hereby have been duly authorized by all necessary
corporate action, including by resolution of the Board of Directors of Premier.
This Purchase Agreement has been duly executed and delivered by Premier and
constitutes a valid and binding agreement of Premier, enforceable against
Premier in accordance with its terms (subject to applicable bankruptcy,
insolvency, reorganization, moratorium, fraudulent transfer and other similar
laws affecting
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creditors' rights generally from time to time in effect and to general
principles of equity, including concepts of materiality, reasonableness, good
faith and fair dealing, regardless of whether in a proceeding or equity or at
law).
(c) No Conflict. Other than the filing of a Form 4 and an amendment
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to Premier's report on Schedule 13D under the Exchange Act, and no filing with,
and no permit, authorization, consent or approval of, any Governmental Authority
is necessary for the execution of this Purchase Agreement or the Registration
Rights Agreement by Premier and the consummation by Premier of the transactions
contemplated hereby and thereby, except for such filings the failure of which to
be made, individually or in the aggregate, could not reasonably be expected to
have a material adverse effect on Premier, and its Subsidiaries, taken as a
whole, or to prevent or materially delay the consummation of the transactions
contemplated hereby and thereby. Neither the execution and delivery of this
Purchase Agreement or the Registration Rights Agreement by Premier nor the
consummation by Premier of the transactions contemplated hereby or thereby, nor
compliance by Premier with any of the provisions hereof or thereof (i) conflicts
with or results in any breach of the Articles of Incorporation or bylaws of
Premier, (ii) contravenes, conflicts with or would constitute a violation of any
provision of any law, regulation, judgment, injunction, order or decree binding
upon Premier, or (iii) constitutes a default under or gives rise to any right of
termination, cancellation or acceleration of any right or obligation of Premier
or any of its Subsidiaries or to a loss of any benefit to which Premier or any
of its Subsidiaries is entitled under any provision of any agreement, contract
or other instrument binding on Premier or any of its Subsidiaries or any
license, franchise, permit or other similar authorization held by Premier or any
of its Subsidiaries, except, in the case of clauses (ii) and (iii), for any such
contravention, conflict, violation, default, termination, cancellation,
acceleration or loss that would not have a material adverse effect on Premier or
any of its Subsidiaries taken as a whole.
(d) No Required Vote. No vote of the holders of any class of the
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outstanding capital stock of Premier is necessary to approve this Purchase
Agreement or the Transactions.
(e) Reservation of Premier Common Stock. The Premier Common Stock and
-----------------------------------
Warrants to be issued to Seller as Purchase Consideration pursuant to this
Purchase Agreement, and any Premier Common Stock purchasable upon exercise of
such Warrants, have been reserved solely for issuance and delivery to Seller,
and when issued, will be duly and validly issued, fully paid and nonassessable,
and such issuances will not violate any pre-emptive rights under applicable law,
Premier's Articles of Incorporation or bylaw, contract or agreement, or
otherwise.
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3.2 Representations and Warranties of Seller. The Seller represents
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and warrants to Premier as of the date hereof and as of the Closing Date as
follows:
(a) Organization, Standing and Power of the Seller. The Seller has
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the requisite power and authority and legal capacity to enter into and perform
all of its obligations under this Purchase Agreement, to consummate the
Transactions (including transferring the Shares to Premier). Neither the
execution and delivery of this Purchase Agreement by the Seller nor the
consummation by the Seller of the Transactions nor compliance by the Seller with
the provisions hereof conflicts with or results in a breach of any agreement,
other than such agreements, the conflict with or breach of which, individually
or in the aggregate, could not reasonably be expected to have a material adverse
effect on the Seller, if any, taken as a whole, or to prevent or materially
delay the consummation of the Transactions.
(b) Enforceability. This Purchase Agreement has been duly and validly
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authorized, executed and delivered by the Seller and constitutes the Seller's
valid and binding agreement, enforceable against the Seller in accordance with
its terms (subject to applicable bankruptcy, insolvency, reorganization,
moratorium, fraudulent transfer and other similar laws affecting creditors'
rights generally from time to time in effect and to general principles of
equity, including concepts of materiality, reasonableness, good faith and fair
dealing, regardless of whether in a proceeding at equity or at law).
(c) Title to Shares. At the Closing the Seller will be the direct and
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record owner of the Shares. Other than options to purchase 20,000 shares of
Company Common Stock, the Seller does not own or have the right to acquire,
whether presently exercisable or at any time in the future, any shares of
Company Common Stock or any securities convertible into or exercisable or
exchangeable for Shares including, but not limited to, any options held by
Seller. No person has the right to acquire, and the Seller is not a party to any
contract, understanding, commitment, arrangement or other agreement to sell,
transfer or otherwise dispose of, any shares of Company Common Stock owned by or
issuable to the Seller. At the Closing, the Seller will have good and valid
title to the Shares, free and clear of any Liens or Restrictions and they will
have the full legal right, power and authority to assign, transfer and deliver
such shares to Premier pursuant hereto. On and after the Closing Date, the
Seller will have the sole voting power, and sole power of disposition, with
respect to all of such Shares and there will be no restrictions on the Seller's
ability to transfer such Shares.
(d) No Conflict. Except for the filing of a Form 4 with the
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Securities and Exchange Commission, Nasdaq, the Boston Stock Exchange, and the
Company, no filing with, and no permit, authorization, consent or approval of,
any Governmental Authority is necessary for the execution of this Purchase
Agreement by the Seller and the consummation
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by the Seller of the transactions contemplated hereby, other than such filings
the failure of which to be made, individually or in the aggregate, could not
reasonably be expected to have a material adverse effect on the Seller, if any,
taken as a whole, or to prevent or materially delay the consummation of the
Transactions.
(e) Investment Intention. The Seller is acquiring the Premier Common
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Stock and the Warrants for its own account as principal for investment and not
with a view to resale or distribution or with any present intention of
distributing or selling the same. The Seller is fully aware that the Premier
Common Stock and the Warrants have not been registered under the Securities Act
or under any applicable state securities laws, and are being offered and sold in
reliance on exemptions from the registration requirements of the Securities Act
and all such laws. The Seller is an "accredited investor" as such term is
defined in Regulation D promulgated under the Securities Act. The Seller is
able to bear the economic risk of the investment in the Premier Common Stock and
the Warrants and has such knowledge and experience in financial and business
matters, and knowledge of the business of Premier, as to be capable of
evaluating the merits and risks of a prospective investment.
(f) Limitations on Transferability. Seller acknowledges that it may
------------------------------
not transfer any of the Premier Common Stock or the Warrants received by it
pursuant hereto unless and until the same are registered under the Securities
Act and any applicable state securities laws, or unless an exemption from such
registration is available. Seller acknowledges that transferability of the
Premier Common Stock and Warrants also is limited by the terms of this Purchase
Agreement.
(g) Legend. In furtherance of the agreements contained in Sections
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3.2(e) and (f), the Seller agrees that the certificate or certificates
representing:
(i) the Premier Common Stock beneficially owned by Seller shall
bear the following legend:
THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), NOR UNDER ANY
APPLICABLE STATE SECURITIES LAWS. THE SHARES REPRESENTED BY THIS
CERTIFICATE MAY NOT BE SOLD, TRANSFERRED, PLEDGED, HYPOTHECATED OR
OTHERWISE DISPOSED OF UNLESS (I) COVERED BY AN EFFECTIVE REGISTRATION
STATEMENT UNDER THE ACT AND ANY APPLICABLE STATE SECURITIES LAWS, (II) THE
SALE IS MADE PURSUANT TO RULE 144 UNDER THE ACT, IF AVAILABLE, AND
EXEMPTIONS FROM REGISTRATION UNDER APPLICABLE STATE SECURITIES LAWS OR
(III) AN OPINION IS
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OBTAINED FROM COUNSEL TO THE HOLDER, REASONABLY SATISFACTORY TO COUNSEL TO
PREMIER LASER SYSTEMS, INC. THAT AN EXEMPTION FROM REGISTRATION IS
AVAILABLE UNDER THE ACT AND ALL APPLICABLE STATE SECURITIES LAWS.
(ii) the Warrants beneficially owned by Seller shall bear the
following legend:
THIS WARRANT AND THE COMMON STOCK ISSUABLE UPON EXERCISE HEREOF HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"),
NOR UNDER ANY APPLICABLE STATE SECURITIES LAWS. NEITHER THIS WARRANT NOR
THE SECURITIES ISSUABLE UPON EXERCISE HEREOF MAY BE SOLD, TRANSFERRED,
PLEDGED, HYPOTHECATED OR OTHERWISE DISPOSED OF UNLESS (I) COVERED BY AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT AND ANY APPLICABLE STATE
SECURITIES LAWS, (II) THE SALE IS MADE PURSUANT TO RULE 144 UNDER THE ACT,
IF AVAILABLE, AND EXEMPTIONS FROM REGISTRATION UNDER APPLICABLE STATE
SECURITIES LAWS OR (III) AN OPINION IS OBTAINED FROM COUNSEL TO THE HOLDER,
REASONABLY SATISFACTORY TO COUNSEL TO PREMIER LASER SYSTEMS, INC. THAT AN
EXEMPTION FROM REGISTRATION IS AVAILABLE UNDER THE ACT AND ALL APPLICABLE
STATE SECURITIES LAWS.
Premier will exchange certificates without the foregoing legend upon the
request of Seller at such time as (i) the restrictions imposed by this Purchase
Agreement are no longer applicable; and (ii) the holder thereof may sell such
shares or warrants without registration of such sale under the Securities Act,
as evidenced (if requested by Premier) by an opinion of counsel to such holder.
(h) No Broker. No investment banker, broker, finder, consultant or
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intermediary is entitled to be paid any investment banking, brokerage, finder's
or similar fee or commission by any Seller in connection with this Purchase
Agreement or the Transactions for which the Seller or Premier would be liable
following the Closing.
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ARTICLE IV
COVENANTS
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4.1 Covenant of the Seller.
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(a) Binding Obligations. Notwithstanding, and without in any way
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limiting, any other provision of this Purchase Agreement, the Seller
acknowledges that, subject to the satisfaction (or waiver by it) of the
conditions set forth in Section 5.2, its obligation to consummate the
Transactions, including the sale to Premier of the Shares, is absolute and
unconditional and shall not terminate except in accordance with Section 7.1,
irrespective of, without limitation, any receipt of the Company of any proposal
for a Business Combination or any resolution by the Board of Directors of the
Company to approve a Business Combination or otherwise.
4.2 Covenants of Premier.
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(a) Registration Rights Agreement. Premier shall cause the parties to
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enter into that certain Registration Rights Agreement in the form of Exhibit
"A."
(b) Purchases of Company Common Stock Prior to the Closing. Premier
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agrees to use its best efforts to purchase or otherwise acquire, concurrently
with or prior to the Closing, such number of shares of Company Common Stock, in
negotiated transactions or otherwise, as is necessary so that the Premier's
percentage of beneficial ownership of the Company Common Stock, shall at the
Closing constitute at least 50.1%.
(c) Tender Offer. Following the Closing, Premier agrees to use its
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best efforts to effect a tender offer (the "Tender Offer") for the purchase of
the then remaining outstanding shares of Company Common Stock.
4.3 Reasonable Best Efforts.
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(a) Subject to the terms and conditions of this Purchase Agreement,
each party will use its reasonable best efforts to take, or cause to be taken,
all actions to do, or cause to be done, all things necessary, proper or
advisable under applicable laws and regulations to consummate the transactions
contemplated by this Purchase Agreement.
(b) Each party hereby agrees, while this Purchase Agreement is in
effect, and except as contemplated hereby, not to intentionally and knowingly
take any action with the intention and knowledge that such action would make any
of its representations or warranties contained herein untrue or incorrect in any
material respect to have the effect of
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preventing or disabling it from performing any of its obligations under this
Purchase Agreement.
ARTICLE V
CONDITIONS TO CLOSING
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5.1 Conditions to Obligation of Premier. The obligation of Premier
-----------------------------------
to consummate the purchase of the Shares is further subject to the satisfaction
(or waiver by Premier) of the following conditions:
(a) Representations and Warranties. The representations and
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warranties of the Seller set forth in this Purchase Agreement qualified as to
materiality shall be true and correct and those not so qualified shall be true
and correct in all material respects, in each case as of the date of this
Purchase Agreement and as of the Closing Date as though made on and as of the
Closing Date, except for those representations and warranties which address
matters only as of a particular date (which shall have been true and correct in
all material respects as of such date). Premier shall have received a
certificate signed by the Seller to the effect set forth in this paragraph.
(b) Performance of Obligations of the Seller. The Seller shall have
----------------------------------------
performed in all material respects all of the covenants and obligations required
to be performed by them under this Purchase Agreement at or prior to the Closing
Date, and Premier shall have received a certificate signed by the Seller to the
effect set forth in this paragraph.
(c) No Injunction. No preliminary or permanent injunction or order
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that would prohibit or restrain the consummation of the transactions
contemplated hereunder shall be in effect and no Governmental Authority or other
Person shall have commenced or threatened to commence an action or proceeding
seeking to enjoin the consummation of such transactions or to impose liability
on the parties hereto in connection therewith.
5.2 Conditions to Obligations of the Seller. The obligations of the
---------------------------------------
Seller to effect the Transactions are further subject to the satisfaction (or
waiver by the Seller) of the following conditions:
(a) Representations and Warranties. The representations and
------------------------------
warranties of Premier set forth in this Purchase Agreement qualified as to
materiality shall be true and correct and those not so qualified shall be true
and correct in all material respects, in each case as of the date of this
Purchase Agreement and as of the Closing Date as though made
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on and as of the Closing Date, except for those representations and warranties
which address matters only as of a particular date (which shall have been true
and correct in all material respects as of such date), and the Seller shall have
received a certificate signed on behalf of Premier to the effect set forth in
this paragraph.
(b) Performance of Obligations of Premier. Premier shall have
-------------------------------------
performed in all material respects all of the covenants and obligations required
to be performed by it under this Purchase Agreement at or prior to the Closing
Date, and the Seller shall have received a certificate signed on behalf of
Premier to the effect set forth in this paragraph.
(c) Registration Rights Agreement. The parties shall have entered
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into that certain Registration Rights Agreement in the form of Exhibit "A."
ARTICLE VI
INDEMNIFICATION
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6.1 Indemnification by Premier. From and after the date of this
--------------------------
Purchase Agreement, whether or not the Transactions are consummated, Premier
shall indemnify the Seller and its respective Affiliates, directors, officers,
employees, partners, stockholders, agents and representatives (including
attorneys and accountants) (collectively, the "Representatives") against and
hold them harmless from any loss, liability, claim, damage or expense (including
reasonable legal fees and expenses ("Loss") suffered or incurred by any such
indemnified party arising from or relating to any lawsuit by any governmental
body or any present or former stockholder of the Company naming any of the
parties entitled to indemnification hereunder (each an "indemnified party") and
seeking to enjoin or otherwise prevent, prohibit or impede the consummation of
the Transactions or otherwise challenging the Transactions.
6.2 Losses Net of Insurance, etc. The amount of any Loss for which
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indemnification is provided under this Article VI shall be net of any amounts
actually recovered by the indemnified party under insurance policies (net of the
cost of obtaining such recovery). If Seller is entitled to indemnification under
insurance policies, it shall, at the request of Premier, use its reasonable best
efforts to obtain such indemnification under such insurance policies before
seeking indemnification from Premier, and any expenses incurred in connection
therewith shall be advanced by the party obligated to provide such
indemnification (the "indemnifying party"). It is understood that the
indemnification obligation of Premier is secondary and supplemental to any
indemnification under any insurance policy maintained for the benefit of the
indemnified party. The indemnify party shall not be relieved of its obligation
to advance fees and expenses to the indemnified party
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in accordance with Section 6.4 (or to indemnify any indemnified person under
this Article VI) by reason of any claim under any insurance policy, but shall be
entitled to receive, and the indemnified party does hereby assign to the
indemnifying party the right to receive, direct payment of any recovery under
any such claim.
6.3 Termination of Indemnification. The obligations to indemnify and
------------------------------
hold harmless a party hereto shall not terminate, except that the obligations of
Premier pursuant to Section 6.1 terminate upon a termination by either party
pursuant to Section 7.1(a), but only with respect to actions or omissions from
and after the time of such termination.
6.4 Procedures Relating to Indemnification Under Article VI.
-------------------------------------------------------
(a) An indemnified party entitled to any indemnification in respect
of, arising out of or involving a claim or demand made by any Person against the
indemnify party (a "Third Party Claim") shall notify the indemnifying party in
writing, and in reasonable detail of the Third Party Claim within 10 Business
Days after receipt by such indemnified party of written notice of the Third
Party Claim; provided; however, that failure to give such notification shall not
affect the indemnification provided hereunder except to the extent the
indemnifying party shall have been actually and materially prejudiced as a
result of such failure (it being understood that the indemnifying party shall
not be liable for any expenses incurred during the period in which the
indemnified party failed to give notice).
(b) If a Third Party Claim is made against an indemnified party, the
indemnifying party shall be entitled to participate in the defense thereof and,
if it so chooses and unconditionally acknowledges its obligations to indemnify
the indemnified party with respect to such Third Party Claim, to assume the
defense thereof with counsel selected by the indemnifying party and not
reasonably objected to by the indemnified party. Should the indemnifying party
so elect to assume the defense of a Third Party Claim, the indemnified party
shall have the right to participate in the defense thereof and to employ
counsel, at its own expense, separate from the counsel employed by the
indemnifying party (except that, for any period following receipt of notice of
any Third Party Claim during which the indemnifying party has failed to assume
the defense of such claim, the indemnifying party shall pay such fees and
expenses as in incurred), it being understood that the indemnifying party shall
control such defense; provided, that the indemnifying party shall not take any
action in the conduct of such defense that would materially adversely affect the
indemnified party without the consent of the indemnified party. The indemnified
party shall also have the right to employ no more than one separate counsel for
all indemnified party (and no more than one local counsel in any jurisdiction
where it is reasonably necessary) not reasonably objected to by the indemnifying
party, at the expense of the indemnifying party, but only if: (i) the use of
counsel chosen by the indemnifying party to represent the indemnified party
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or parties would present such counsel with a conflict of interest, (ii) the
actual or potential defendants in any such action include both the indemnified
party and the indemnifying party and the indemnified party shall have reasonably
concluded that there may be legal defenses available to it and/or other
indemnified parties which are different from or are in addition to those
available to the indemnifying party, (iii) the indemnifying party shall not have
employed counsel reasonably satisfactory to the indemnified party to represent
the indemnified party within a reasonable time after notice of the institution
of such action or (iv) the indemnifying party shall in writing authorize the
indemnified party to employ separate counsel at the expense of the indemnifying
party.
(c) If the indemnifying party elects to assume the defense of any
Third Party Claim, all of the indemnified parties, shall cooperate with the
indemnifying party in the defense or prosecution thereof. Such cooperation
shall include (upon the indemnifying party's reasonable request) the provision
to the indemnifying party of existing records and information which are
reasonably relevant to such Third Party Claim, and making themselves (in the
case of individuals) and using reasonable best efforts to make their employees
and their Representatives, if any, available on a mutually convenient basis to
provide additional information and explanation of any material provided
hereunder, and to attend depositions, give testimony or otherwise appear at any
trial or hearing to the extent reasonably requested by the indemnifying party.
Whether or not the indemnifying party shall have assumed the defense of a Third
Party Claim, the indemnifying party shall not admit any liability with respect
to, or settle, compromise or discharge, such Third Party Claim without the
indemnified party's prior written consent, which consent shall not be
unreasonably withheld. If the indemnifying party shall have assumed the defense
of a Third Party Claim, the indemnified party shall agree to any settlement,
compromise or discharge of a Third Party Claim which the indemnifying party may
recommend and which by its terms obligates the indemnifying party to pay the
full amount of the liability in connection with such Third Party Claim, which
releases the indemnified party completely in connection with such Third Party
Claim, and which would not otherwise adversely affect the indemnified party.
(d) Notwithstanding the foregoing, the indemnifying party shall not be
entitled to assume the defense of any Third Party Claim (but shall be liable for
the reasonable fees and expenses of counsel incurred by the indemnified party in
defending such Third Party Claim, which fees and expenses the indemnifying party
shall pay as incurred in advance of the final disposition of such Third Party
Claim) if the Third Party Claim seeks an order, injunction or other equitable
relief or relief for other than money damages against the indemnified party
which the indemnified party reasonably determines, after conferring with its
outside counsel, cannot be separated from any related claim for money damages;
provided, however, that the foregoing shall not apply to any Third Party Claim
prior to the Closing seeking to enjoin or otherwise prevent, prohibit or impede
the consummation of the Transactions, which Third Party Claim prior to the
Closing shall be defended jointly by the
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indemnifying party and the indemnified party, it being understood and agreed
that (i) only one counsel (plus only one local counsel in any jurisdiction where
it is reasonably necessary) shall be permitted for all of the indemnified party
and (ii) if the parties cannot in good faith agree on a particular matter, such
dispute shall be resolved in good faith by the indemnifying party, with a good
faith effort to balance the interests of both the indemnified parties and the
indemnifying party. If such equitable relief or other relief portion of the
Third Party Claim can be so separate from that for money damages, the
indemnifying party shall be entitled to assume the defense of the portion
relating to the money damages. In the event that the indemnifying party is not
permitted to assume the defense of any Third Party Claim pursuant to this
Section 6.4(d), the indemnified party shall not agree to any settlement,
compromise or discharge of such Third Party Claim which by its terms obligates
the indemnifying party without the prior written consent of the indemnifying
party.
(e) In the event that the indemnified party is entitled to obtain
counsel at the indemnifying party's expense in accordance with Section 6.4(b) or
Section 6.4(d), indemnifying party shall reimburse the indemnified party for the
reasonable fees, costs and expenses of such counsel upon presentation of
invoices detailing with reasonable specificity the nature of the services
provided and the basis of the fees, costs and expenses incurred.
6.5 Arbitration. In the event that any parties are unable to resolve
-----------
any dispute related to or arising under the Transactions contemplated hereunder,
the exclusive method for resolving such dispute shall be binding, nonappealable
arbitration in Irvine, California initiated by a party by a written notice to
the other party demanding arbitration and specifying the claim to be arbitrated.
Such arbitration shall be conducted pursuant to the Expedited Procedures of the
Commercial Arbitration Rule (the "Rules") of the American Arbitration
Association ("AAA), with the following modifications. The party initiating the
arbitration (the "Claimant") shall appoint its arbitrator in its request for
arbitration (the "Request"). The other party (the "Respondent") shall appoint
its arbitrator within 15 Business Days of receipt of the Request and shall
notify the Claimant of such appointment in writing. If the Respondent fails to
appoint an arbitrator within such 15 Business Day period, the arbitrator named
in the Request shall decide the controversy or claim as a sole arbitrator.
Otherwise, the two arbitrators appointed by the parties shall appoint a third
arbitrator within 15 Business Days after the Respondent has notified Claimant of
the appointment of the Respondent's arbitrator. When the third arbitrator has
accepted the appointment, the two party-appointed arbitrators shall promptly
notify the parties of such appointment. If the two arbitrators appointed by the
parties fail or are unable to so appoint a third arbitrator, then the
appointment of the third arbitrator shall be made by the AAA, which shall
promptly notify the parties of the appointment. The third arbitrator shall act
as chairperson of the panel. Upon appointment of the third arbitrator, the
arbitrators shall proceed to commence and conduct all proceedings promptly and
in accordance with the Rules. The arbitral award shall be in writing and shall
be final and binding on the parties to
-15-
the arbitration. The arbitrator shall be instructed to award costs, including
reasonable attorneys' fees and disbursements, which shall be paid by the party
against whom the award is entered. Judgment upon the award may be entered by any
court having jurisdiction thereof or having jurisdiction over the parties or
their assets, without review of the merits of the award.
ARTICLE VII
GENERAL PROVISIONS
------------------
7.1 Termination of Purchase Agreement.
---------------------------------
(a) This Purchase Agreement may be terminated and the purchase and
sale of the Shares abandoned at any time prior to the Closing:
(i) by mutual consent of Premier and the Seller in writing;
(ii) by either Premier or the Seller if the Closing shall not
have occurred prior to February 27, 1998 (other than due to the failure of
the party seeking to terminate this Purchase Agreement to perform its
obligations under this Purchase Agreement required to be performed at or
prior to such date);
(iii) by Premier or Seller, if any Governmental Authority within
the United States or any country or other jurisdiction in which Premier,
directly or indirectly, has material assets or operations shall have issued
an order, decree or taken any other action permanently enjoining,
restraining or otherwise prohibiting the Transactions, and such order,
decree, ruling or other action shall have become final and nonappealable;
or
(iv) by Premier, if after the date of this Purchase Agreement
the Company issues (A) any shares of Company Common Stock (other than upon
the conversion, exercise or exchange of securities outstanding on the date
of this Purchase Agreement that are convertible into or exercisable or
exchangeable for shares of Company Common Stock) or (B) any securities
convertible into or exercisable or exchangeable for shares of Company
Common Stock which result in the percentage of Company Common Stock
beneficially held by the Seller, together with the percentage of Company
Common Stock beneficially held by Premier falling below 50.1% of the
ownership of all Company Common Stock (assuming the conversion, exercise or
exchange of all securities referred to in clause (B)).
-16-
(b) In the event of termination of this Purchase Agreement by either
Premier or the Seller as provided in Section 7.1(a), this Purchase Agreement
shall forthwith become void and have no effect, without any liability or
obligation on the part of Premier or the Seller, other than this Article VII.
Nothing contained in this Section shall relieve any party for any willful breach
of the representations, warranties, covenants or agreements set forth in this
Purchase Agreement.
7.2 Counterparts. This Purchase Agreement may be executed in one or
------------
more counterparts, including electronically transmitted counterparts, all of
which shall be considered one and the same agreement, and shall become a binding
agreement when one or more counterparts have been signed by each party and
delivered to the other parties.
7.3 Notices. All notices, requests, demands or other communications
-------
provided herein shall be made in writing and shall be deemed to have been duly
given if delivered as follows:
If to Premier:
Premier Laser Systems, Inc.
0 Xxxxxx
Xxxxxx, Xxxxxxxxxx 00000
Attn: Secretary
Fax: (000) 000-0000
with a copy to:
Paul, Hastings, Xxxxxxxx & Xxxxxx LLP
000 Xxxx Xxxxxx Xxxxx, 00/xx/ Xxxxx
Xxxxx Xxxx, Xxxxxxxxxx 00000-0000
Attn: Xxxxx X. Xxxxxxxx, Esq.
Fax: (000) 000-0000
If to Seller:
Xxxxxxx Xxxxx, M.D.
00 Xxxxxxxxxx Xxxxxx
Xxxxxxxxx, Xxx Xxxx 00000
Fax: (000) 000-0000
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with a copy to:
Xxxxx, Xxxxxxx, Xxxxxxxx, Xxxxxx & Xxxxxx
000 X. Xxxxxxxx Xxxxxx, 00/xx/ Xxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxx X. Xxxxxxx
Fax: (000) 000-0000
or to such other address as any party shall have specified by notice in writing
to the other parties. All such notices, requests, demands and communications
shall be deemed to have been received on (i) the date of delivery if sent by
messenger, (ii) on the Business Day following the Business Day on which
delivered to a recognized courier service if sent by overnight courier or (iii)
on the date received, if sent by fax.
7.4 Governing Law. This Purchase Agreement shall be governed by and
-------------
construed in accordance with the laws of the State of California as applied to
contracts entered into and to be performed in California and without regard to
the application of principles of conflict of laws.
7.5 Interpretation. When a reference is made in this Purchase
--------------
Agreement to an Article or Section, such reference shall be to an Article or
Section of this Purchase Agreement unless otherwise indicated. The table of
contents and headings contained in this Purchase Agreement are for reference
purposes only and shall not affect in any way the meaning or interpretation of
this Purchase Agreement. Whenever the words "include," "includes" or
"including" are used in this Purchase Agreement, they shall be deemed to be
followed by the words "without limitation."
7.6 Successors and Assigns. Except as otherwise expressly provided
----------------------
in this Purchase Agreement, neither this Purchase Agreement nor any of the
rights, interests or obligations under this Purchase Agreement shall be
assigned, in whole or in part, by operation of law or otherwise by any of the
parties without the prior written consent of the other parties, except that
Premier, prior to or after the consummation of the transactions contemplated by
Sections 2.1 and 2.2, may assign, in its sole discretion, any or all of its
rights, interests and obligations under this Purchase Agreement to any wholly
owned Subsidiary of Premier. However, no such assignment shall relieve Premier
of any of its obligations under this Purchase Agreement. Subject to the
preceding sentence, this Purchase Agreement will be binding upon, inure to the
benefit of, and be enforceable by, the parties and their respective successors,
assigns and heirs.
-18-
7.7 Entire Agreement; No Oral Waiver; Construction. This Purchase
----------------------------------------------
Agreement and the agreements, certificates and other documents contemplated
hereby and thereby, including the Acquisition Agreement, constitute the entire
agreement among the parties pertaining to the subject matter hereof and
supersede all prior and contemporaneous agreements, understandings and
representations, whether oral or written, of the parties in connection
therewith. No covenant or condition or representation not expressed in this
Purchase Agreement shall affect or be effective to interpret, change or restrict
this Purchase Agreement. No prior drafts of this Purchase Agreement and no
words or phrases from any such prior drafts shall be admissible into evidence in
any action, suit or other proceeding involving this Purchase Agreement or the
transactions contemplated hereby. This Purchase Agreement may not be amended,
changed or terminated orally, nor shall any amendment, change, termination or
attempted waiver of any of the provisions of this Purchase Agreement be binding
on any party unless in writing signed by the parties hereto. No modification,
waiver, termination, rescission, discharge or cancellation of this Purchase
Agreement and no waiver of any provision of or default under this Purchase
Agreement shall affect the right of any party thereafter to enforce any other
provision or to exercise any right or remedy in the event of any other default,
whether or not similar.
7.8 Severability. If any provision of this Purchase Agreement (or
------------
any portion thereof) shall be declared by any court of competent jurisdiction to
be illegal, void or unenforceable, all other provisions of this Purchase
Agreement (and portions thereof) shall not be affected and shall remain in full
force and effect.
7.9 No Third-party Rights. Nothing in this Purchase Agreement,
---------------------
expressed or implied, shall or is intended to confer upon any Person other than
the parties hereto or their respective successors or assigns, any rights or
remedies of any nature or kind whatsoever under or by reason of this Purchase
Agreement.
7.10 Remedies. Each of the parties hereto acknowledges and agrees
--------
that (i) the provisions of this Purchase Agreement are reasonable and necessary
to protect the proper and legitimate interests of the other parties hereto, and
(ii) the other parties hereto would be irreparably damaged in the event any of
the provisions of this Purchase Agreement were not performed in accordance with
their specific terms or were otherwise breached. It is accordingly agreed that
the parties hereto shall be entitled to preliminary and permanent injunctive
relief to prevent breaches of the provisions of this Purchase Agreement by the
other parties hereto without the necessity of proving irreparable injury or
actual damages or of posting any bond, and to enforce specifically the terms and
provisions hereof and thereof, which rights shall be cumulative and in addition
to any other remedy to which the parties hereto may be entitled hereunder or at
law or equity.
-19-
7.11 Further Assurances. From time to time, at the reasonable request
------------------
of any other party hereto and without further consideration, each party hereto
shall execute and deliver such additional documents and take all such further
action as may be necessary to consummate and make effective, in the most
expeditious manner practicable, the transactions contemplated by this Purchase
Agreement.
7.12 Survival of Representations.
---------------------------
(a) All representations and warranties contained herein or made
pursuant hereto shall survive the Closing. The expiration of any representation
and warranty shall not affect any claim for indemnification made prior to the
date of such expiration.
(b) The representations and warranties made by any party in this
Purchase Agreement or in any agreement, certificate, schedule or exhibit
delivered in connection with this Purchase Agreement may be fully and completely
relied upon by each other party unless the party seeking to avoid such
representation or warranty can demonstrate that the investigation made by or on
behalf of such other party actually revealed or disclosed the inaccuracy in
question.
7.13 No Restrictions on Directors. Notwithstanding anything to the
----------------------------
contrary in this Purchase Agreement, it is understood and agreed that no
provision of this Purchase Agreement and the Registration Rights Agreement and
the transactions contemplated hereby and thereby shall in any way limit or
restrict the actions of any Person to the extent such Person is acting in such
Person's capacity as a director on the Board of Directors of Premier, and
nothing in this Purchase Agreement or the Registration Rights Agreement is
intended to, or shall be deemed to, restrict the exercise of fiduciary duties by
any such Person in such capacity.
[Signature Page Follows]
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[SIGNATURE PAGE FOR PURCHASE AGREEMENT]
IN WITNESS WHEREOF, the parties have executed, delivered and entered into
this Purchase Agreement as of the day and year first above written.
"Premier"
PREMIER LASER SYSTEMS, INC.
By:/s/ Xxxxxxx Xxxxxx
---------------------------
Name:_________________________
Title:________________________
"Seller"
/s/ Xxxxxxx Clag
------------------------------
Name:_________________________
-21-
EXHIBIT "A"
REGISTRATION RIGHTS AGREEMENT
EXHIBIT "B"
FORM OF CLASS C WARRANT
EXHIBIT "C"
FORM OF CLASS D WARRANT
