EXHIBIT 99.3
AGREEMENT
This Agreement is made on February 27, 2001 ("Effective Date"), by and
between LaserSight, Technologies Inc., a Delaware corporation with a principal
place of business at 0000 Xxxxxxxxxx Xxxxxxxxx, Xxxxx 000, Xxxxxx Xxxx, Xxxxxxx
00000 ("LaserSight") and Alcon Universal Ltd., a Swiss corporation, having a
place of business at Xxxxx 00, XX-0000, Xxxxxxxxx, Xxxxxxxxxxx and its
affiliates ("Alcon").
WITNESSETH:
WHEREAS, LaserSight is the owner or otherwise controls U.S. Patent No.
5,520,679, and any continuations, divisionals, reexaminations, reissues and
foreign counterparts thereof (the "'679 Patent");
WHEREAS, the parties desire to enter into discussions regarding a
possible transaction involving the `679 Patent.
NOW, THEREFORE, in consideration of the following mutual promises and
obligations, the parties agree as follows.
1. LaserSight shall not file any suit alleging that any product made, used, sold
or offered for sale by Alcon infringes the '679 Patent for a period of thirty
(30) days following the Effective Date (the "Tolling Period"), during which time
the parties shall cooperate with each other, including disclosing all relevant
information and producing copies of all relevant documents, and undertake a
study and perform appropriate due diligence regarding the scope of the reissue
claims of the '679 Patent. During the Tolling Period, Alcon agrees not to
challenge or in any way contest the reissue of the `679 Patent.
2. Alcon shall not raise LaserSight's failure to file suit under the '679 patent
during the Tolling Period as a defense by way of estoppel, laches or under any
other legal theory. Nothing in the Agreement shall be construed as waiving or
restricting any rights, claims for damages or defenses of either party that may
have arisen prior to or arise after the Effective Date.
3. This Agreement shall not be construed as granting Alcon any rights under the
'679 Patent.
4. This Agreement is in furtherance of settlement discussions between the
parties and is subject to Rule 408 of the Federal Rules of Evidence.
5. During the term of this Agreement, either party may disclose to the other
party confidential information in order to facilitate settlement discussion.
Accordingly, all information received by either party, directly or indirectly
incident to this Agreement, shall be held in strictest confidence, and the
receiving party shall not either directly or indirectly disclose or use, except
in performance of its obligations under this Agreement, any such information of
any kind or character as may be disclosed or otherwise imparted to the receiving
party or as may be developed during the course of this Agreement, and that all
such information shall be held in the strictest confidence. The foregoing
obligations of confidentiality and non-use shall remain in effect for a period
of ten (10) years from the date of disclosure, and shall survive the expiration
or termination of this Agreement.
The obligations of confidence and non-use assumed by LaserSight and by
Alcon hereunder shall not apply to:
(a) information which at the time of disclosure is in the public
domain; or
(b) information which thereafter lawfully becomes a part of the
public domain other than through disclosure by or through the
receiving party; or
(c) information which is already in the possession of the party
receiving same as shown by its written record; or
(d) information which is lawfully disclosed to either party by a
third party not under an obligation of confidentiality to the
disclosing party with respect to said Confidential
Information; or
(e) information which is subsequently developed by an employee or
agent of the receiving party without actual knowledge of the
disclosure; or
(f) information which the receiving party is required by law to
disclose, provided that the receiving party gives the
disclosing party reasonable notice of its intent to disclose
such information; or
(g) information which the receiving party is able to obtain
lawfully from the other party in connection with any legal,
judicial, arbitration or similar proceeding.
6. If any provision of this Agreement shall for any reason or to any extent be
invalid or unenforceable, the remainder of this Agreement shall not be affected
thereby, but rather shall be enforced to the greatest extent permitted by law.
7. This Agreement embodies the entire agreement between the parties relating to
the subject matter hereof. All prior arrangements or understandings are hereby
superseded and canceled. No change, modification, or waiver of this Agreement or
any term thereof shall be valid or binding unless it is in writing and signed by
the party intended to be bound.
ALCON UNIVERSAL LTD.
/s/Xxxxx Xxxxxx
------------------- -------------------------------
DATE Xxxxx Xxxxxx
Vice President/General Manager
LASERSIGHT TECHNOLOGIES, INC.
BY: /s/Xxxxxxx X. Xxxxxx
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------------------- NAME: Xxxxxxx X. Xxxxxx
DATE ---------------------------
President/CEO
TITLE: ---------------------------