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Exhibitions
AMENDMENT AND SUPPLEMENT TO ASSETS
SALE AND PURCHASE AGREEMENT AND RELEASE
THIS AMENDMENT AND SUPPLEMENT AGREEMENT AND RELEASE (THE "AMENDMENT")
is entered into as of the 28th day of February 2001, by and between ESCALON
MEDICAL CORP., a Delaware corporation ("Escalon"), ESCALON VASCULAR ACCESS, INC.
("Buyer") and RADIANCE MEDICAL SYSTEMS, INC. (formerly CARDIOVASCULAR DYNAMICS,
INC.), a Delaware corporation ("Radiance").
BACKGROUND
WHEREAS, Escalon, Buyer and Radiance entered into an Assets Sale and
Purchase Agreement (the "Asset Agreement") dated January 21, 1999, and
WHEREAS, any capitalized term used herein and not defined shall have
the meaning ascribed to it in the Asset Agreement, and
WHEREAS, the parties wish to amend the Asset Agreement to provide an
adjustment in the terms of payment of the royalties pursuant to Section 2.3(c)
of the Asset Agreement,;
WITNESSETH
NOW, THEREFORE, in consideration of the respective covenants contained
herein and intending to be legally bound hereby, the parties hereto agree as
follows:
1. The last two sentences of Section 2.3(c) of the Asset Agreement
shall be amended to read as follows:
"With respect to Net Sales made during each 12-month period
during the Royalty Period commencing on January 21, 2001, (each such
period a "Royalty Year"), Buyer shall pay to Seller royalty payments
under this Section 2.3(c) only with respect to Net Sales in excess of
$3,000,000 in any Royalty Year."
2. Radiance, Escalon and Buyer agree that Buyer owes to Radiance an
additional $182,442 for royalties for the 12 months ended January 21, 2001, and
agree that as payment therefor, and as consideration for the amendment of
Section 2.3(c) of the Asset Agreement set forth above, Escalon and Buyer shall
make the issuances and payments and deliver promissory notes, and agrees to the
obligations, as set forth in Sections 3, 4, 5, 6 and 7 below.
3. Escalon shall within three (3) days of the date of this Amendment
issue to Radiance 50,000 shares of Escalon's common stock (to be valued at
$100,000). Radiance understands and acknowledges that (i) the shares of Escalon
Common Stock to be issued to the Radiance pursuant to this Amendment will be
issued under certain exemptions from the registration provisions of the
Securities Act of 1933 (the "Securities Act"), (ii) Radiance is acquiring the
shares of Escalon Common Stock without being furnished any offering literature
or prospectus, (iii) the issuance of the shares of Escalon Common Stock has not
been examined by the Securities and Exchange Commission (the "Commission") or by
any agency charged with the administration of the securities laws of any state
or other jurisdiction and (iv) it has had the opportunity to review certain
materials, including financial information, regarding Escalon and to ask
questions of officers of Escalon regarding Escalon. Radiance represents and
warrants that it has such knowledge and experience in financial and business
matters that it is capable of evaluating the merits and risks of an investment
in the shares of Escalon Common Stock and of making an informed investment
decision with respect thereto. Radiance understand that Escalon is relying on
the truth and accuracy of the representations, declarations and warranties made
in this Section 3 by Radiance in issuing the shares of Escalon Common Stock
without having first registered the shares under the Securities Act or under the
securities laws of any state or other jurisdiction. Radiance also confirms that
(i) it understands that there are substantial restrictions on the
transferability of the shares of Escalon Common Stock it is to receive pursuant
to this Amendment and, accordingly, it may not be possible for it to liquidate
its investment in the shares of Escalon Common Stock in case of emergency and
(ii) it is able to bear the economic risk of its
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investment in the shares and to hold the shares for an indefinite period of
time. The shares of Escalon Common Stock are being acquired by the Radiance in
good faith solely for its own account, for investment purposes only, and are not
being acquired with a view to or for the resale, distribution, subdivision or
fractionalization thereof. Radiance does not have any contract, undertaking,
understanding, agreement or arrangement, formal or informal, with any person to
sell, transfer or pledge to any person the shares of Escalon Common Stock, or
any part thereof, and has no current plan to enter into any such contract,
undertaking, agreement or arrangement. Radiance understands that the legal
consequences of the foregoing representations and warranties are that it must
bear the economic risk of its investment in the shares of the Escalon Common
Stock for an indefinite period of time because the shares have not been
registered under the Securities Act.
4. Registration Rights.
(i) Registration Rights. Escalon shall use its best efforts to register
the shares of Escalon Common Stock issued to Radiance in this Amendment within
the seventy-five (75) days following the execution of this Amendment or as soon
as practicable thereafter on Form S-3 under the Securities Act, or any successor
to such form, (or if Escalon is not eligible to use Form S-3, then any other
appropriate form) in a manner that will, upon being declared effective,
constitute a "shelf" registration for purposes of Rule 415 under the Securities
Act, pursuant to which Radiance may sell the shares of Escalon Common Stock
received by it in this Amendment, from time to time and in such amounts as
Radiance may hereafter determine, all in a manner consistent with all applicable
provisions of the Securities Act and the Exchange Act.
(ii) Registration Procedure. With respect to registration under Section
4(i), Escalon shall prepare and file such amendments, post-effective amendments
and periodic reports under the Exchange Act as may be necessary to keep such
registration statement continuously effective until the second anniversary of
this Amendment. Notwithstanding the foregoing, Escalon shall not be required to
update, pursuant to this Section 4, any document during a period when Escalon
shall, in good faith and using reasonable business judgment, believe that the
premature disclosure of any event or information would have a material adverse
effect on Escalon or its prospects. Radiance hereby agrees, that upon receipt of
notice from Escalon of the happening of any occurrence described in the
preceding sentence, Radiance shall forthwith discontinue disposition of the
shares of Escalon Common Stock received by it in this Amendment pursuant to such
registration statement until Radiance receipt of the copies of the supplemented
or amended prospectus, and, if so directed by Escalon, Radiance shall deliver to
Escalon all copies in its possession, other than permanent file copies then in
Radiance's possession, of the prospectus covering such Escalon Common Stock
current at the time of receipt of such notice.
(iii) Expenses. The costs and expenses, other than selling discounts or
commissions, of registration pursuant to this Section 4 shall be paid by Escalon
(including, without limitation, all registration and filing fees, printing
expenses, and costs of special audits incident to or required by such
registration).
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(iv) Indemnification. To the extent permitted by law, Escalon will
indemnify and hold harmless Radiance, any underwriter (as defined in the
Securities Act) for Radiance and each person, if any, who controls Radiance or
underwriter within the meaning of the Securities Act or the Securities Exchange
Act of 1934, as amended (the "Exchange Act"), against any losses, claims,
damages or liabilities (joint or several) to which they may become subject under
the Securities Act, the Exchange Act or other federal or state law, insofar as
such losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon any of the following statements, omissions or
violations: (i) any untrue statement or alleged untrue statement of a material
fact contained in such registration statement on or after the effective date, or
final prospectus contained therein or any amendments or supplements thereto;
(ii) the omission or alleged omission to state therein a material fact required
to be stated therein, or necessary to make the statements therein not
misleading; or (iii) any violation or alleged violation by Escalon of the
Securities Act, the Exchange Act, any state securities law or any rule or
regulation promulgated under the Securities Act, the Exchange Act or any state
securities law; and the Company will pay to each the Holder, underwriter or
controlling person, as incurred, any legal or other expenses reasonably incurred
by them in connection with investigating or defending any such loss, claim,
damage, liability or action.
5. Upon execution of this Amendment Escalon or Buyer shall pay $17,558
to Radiance in immediately available funds.
6. Escalon and Buyer, jointly and severally, shall execute and deliver
to Radiance a term note, in the form attached hereto as Exhibit 1, (the "Short
Term Note") in the amount of $64,884, with interest at the Prime Rate as
published in the Wall Street Journal (New York edition) plus 1%, payable
interest only quarterly beginning on May 31, 2001 and the principal and interest
shall be due in full on January 15, 2002;
7. Escalon and Buyer, jointly and severally, shall execute and deliver
to Radiance an additional term note, in the form attached hereto as Exhibit 2,
(the "Long Term Note") in the amount of $717,558, with interest at the Prime
Rate as published in the Wall Street Journal (New York edition) plus 1%, payable
interest only quarterly beginning on May 31, 2001 through January 15, 2002 and
thereafter principal and interest payable in eleven (11) quarterly installments
beginning on April 15, 2002;
8. In the event of a Change of Control (as defined therein) of either
Escalon or Buyer then all obligations under the Short Term Note and the Long
Term Note (collectively, the "Notes") shall be immediately due and payable, with
a prepayment premium as set forth in the Notes.
9. Each of Buyer and Escalon, on behalf of itself and each of its
Affiliates, and the predecessors, successors and assigns of each acknowledges
full and complete satisfaction of, and hereby irrevocably, unconditionally,
forever and finally releases and fully discharges Radiance and its Affiliates,
and the shareholders, Affiliates, officers, directors, employees, agents,
attorneys, representatives, predecessors, successors and assigns of each (the
"Radiance Releasees") from, any and all claims, demands, actions, causes of
action, promises, covenants, contracts, agreements, bonds, obligations,
liabilities, losses, damages, costs, expenses and moneys otherwise accrued, due
or unpaid, of whatsoever character, nature or kind, whether in law or in equity,
in contract or in tort, under statute or at common law, whether now known or
unknown, suspected or unsuspected, fixed or contingent, against the Radiance
Releasees arising out of, in connection with, or in any way related to the Asset
Agreement.
10. Each of Buyer and Escalon, on behalf of itself and its Affiliates,
having been fully advised by its respective counsel, hereby expressly and
voluntarily waives all rights or benefits that it might otherwise have under the
provisions of Section 1542 of the Civil Code of the State of California, which
provides as follows, and under any and all federal, state, foreign and/or
common-law statutes or principles of similar effect:
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A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT
KNOW OR SUSPECT TO EXIST IN ITS FAVOR AT THE TIME OF EXECUTING THE
RELEASE, WHICH IF KNOWN BY IT MUST HAVE MATERIALLY AFFECTED ITS
SETTLEMENT WITH DEBTOR.
11. Each of Buyer and Escalon, on behalf of itself and its Affiliates,
represents and acknowledges that (a) the terms of this Amendment have been
completely read and fully understood and accepted for the purpose of effecting a
full, complete and final compromise, adjustment, and settlement of the matters
referred to herein; (b) it intends to be fully bound hereby and may not
hereafter raise any claim of mistake of fact, misunderstanding, or inadequacy of
consideration in connection herewith; and (c) in executing this Agreement, it
relies solely upon its own judgment, belief, and knowledge, and the advice and
recommendations of its own independently selected counsel, concerning the
nature, extent, and duration of its rights and claims, and it has not been
influenced to any extent whatsoever in executing the same by any representation
or statement made or omitted to be made by the other parties hereto or by any
person representing another party.
12. This Amendment shall be governed by the terms in the Asset
Agreement, provided however that in the event of any conflict or variance
between the terms of this Amendment and the Asset Agreement, this Amendment
shall control.
13. The parties acknowledge and agree that all of the terms,
provisions, covenants and conditions of the Asset Agreement shall hereafter
continue in full force and effect in accordance with the terms thereof, except
to the extent amended, modified, deleted or revised in this Amendment.
14. This Amendment may be executed in any number of counterparts by
facsimile or otherwise, each of which shall be deemed an original, but which
together shall constitute one and the same instrument.
IN WITNESS WHEREOF, this Amendment has been executed by the parties
hereto as of the day and year first written above.
RADIANCE MEDICAL SYSTEMS, INC.
By: /s/ Steven Kroll
-------------------------------
Title: VP Finance & Adm.
ESCALON MEDICAL CORP.
By: /s/
-------------------------------
Richard J. DePiano, CEO
-----------------------------------
ESCALON VASCULAR ACCESS, INC.
By: /s/
-------------------------------
Richard J. DePiano, CEO
-----------------------------------
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EXHIBIT 1
SHORT TERM NOTE
February 28, 2001
$64,884.00
FOR VALUE RECEIVED, Escalon Medical Corp, a Delaware corporation, and
Escalon Vascular Access, Inc., a Delaware corporation, both having an address at
351 East Conestoga Road, Wayne, PA 19087 (each a "Maker"), hereby, jointly and
severally, covenant and promise to pay to Radiance Medical Systems, Inc., a
Delaware corporation, having an address at 13700 Alton Parkway, Suite 160,
Irvine, CA 92618 ("Payee"), at Payee's address first above written or at such
other address as Payee may designate in writing, Sixty Four Thousand Eight
Hundred Eighty Four Dollars ($64,884.00), lawful money of the United States of
America, together with interest thereon computed from the date hereof at a rate
per annum equal to 1 percentage point above the prime rate as published in the
Wall Street Journal (New York Edition) on the last business day of each quarter
(to be applicable to the succeeding quarter), which only interest shall be
payable in quarterly installments commencing on the 31st day of May, 2001, and
on the 31st day of August and the 30th day of November, until January 15, 2002,
on which date all outstanding principal and interest shall be due and payable.
To the extent any payment of principal or interest is not paid when due, it
shall accrue interest until paid at the rate of one and one-half percent
(1-1/2%) per month, or the maximum rate permitted by law, which is less.
EACH MAKER JOINTLY AND SEVERALLY COVENANTS AND AGREES WITH PAYEE AS FOLLOWS:
15. Maker will pay the indebtedness evidenced by this Note as provided
herein.
16. Maker shall not have the right to prepay the indebtedness evidenced
by this Note, in whole or in part, unless Maker shall give Payee ten (10) days
notice of its intention to prepay such indebtedness and shall pay to Payee on
the date of the prepayment all interest accrued to said date and a prepayment
premium. The prepayment premium shall be calculated by multiplying the remaining
principal balance times the excess, if any of the rate of return achieved by
Payee on cash or cash equivalents owned by Payee for the most recent quarter
prior to the date of prepayment over the Prime Rate plus 1% on the date of
prepayment, divided by twelve (12) months, multiplied by the number of remaining
months to maturity (see attached example on Exhibit A) The Prime Rate shall be
defined as the published Prime Rate in the Wall Street Journal (New York
edition) on the date of prepayment.
17. If any of the following events shall occur:
(a) the Maker defaults in the payment of any principal or
interest due under this Note or the Long Term Note issued in conjunction with
this Note under the Amendment and Supplement Agreement and Release, dated as of
February 28, 2001, by and among Payee and each Maker, (together with this Note,
the "Notes");
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(2) any material default by either Maker of any other
material obligation under the Notes or the Assets Sale and Purchase Agreement,
dated January 21, 1999, by and among Payee and each Maker, as amended;
(3) there shall be a Change in Control of either Maker.
then, and in each and every such case, the Payee shall provide notice to either
or both Makers and provide Makers ten (10) days to begin to cure such default.
Thereafter, if Makers shall not have cured such default, Payee may by written
notice to either or both Makers declare all amounts under this Note to be
forthwith due and payable and thereupon the balance shall become so due and
payable, along with a prepayment premium as calculated in Section 2 above,
without presentation, protest or further demand or notice of any kind, all of
which are hereby expressly waived.
18. For purposes hereof a Change in Control of Escalon Vascular Access,
Inc., shall be deemed to have occurred if Escalon Vascular Access, Inc. is no
longer a wholly owned subsidiary of Escalon Medical Corp. For purposes hereof a
Change of Control of Escalon Medical Corp. shall be deemed to have occurred only
(i) if Escalon Medical Corp. is liquidated or dissolved, (ii) if Escalon Medical
Corp. sells substantially all of its assets or (iii) if Escalon Medical Corp is
acquired by another entity.
19. Maker hereby waives presentment for payment, demand, protest, and
notice of dishonor. If an action is brought for collection under this Note, the
Payee shall be entitled to receive all costs of collection, including, without
limitation, its reasonable attorneys' fees.
20. Any notice or demand required or permitted to be made or given
hereunder shall be deemed sufficiently made and given if given by the mailing of
such notice or demand by certified or registered mail, return receipt requested,
with postage prepaid, addressed, if to either Maker, at such Maker's address
first above written, or if to Payee, at Payee's address first above written. Any
party may change its address by like notice to the other party.
21. This Note may not be changed or terminated orally, but only by an
agreement in writing signed by the party against whom enforcement of any change,
modification, termination, waiver, or discharge is sought. This Note shall be
construed and enforced in accordance with the laws of Delaware.
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IN WITNESS WHEREOF, Maker has executed this Note as of the date first
above written.
ESCALON MEDICAL CORP
ATTEST:
By:
---------------------------------
Richard J. DePiano, CEO
By
---------------------------------
Secretary
ESCALON VASCULAR ACCESS, INC.
By:
---------------------------------
Richard J. DePiano, CEO
Exhibit A
See Exhibit 3 of Amendment Agreement
COMMONWEALTH OF PENNSYLVANIA, COUNTY OF , ss.
On this ___ day of February, 2001, before me, the undersigned officer,
personally appeared ____, to me known, who being duly sworn, did depose and say
and did acknowledge that he is the CEO of Escalon Medical Corp, the corporation
described in and which executed the foregoing Note; that he knows the seal of
said corporation; that the seal affixed to said Note is such corporate seal;
that it was so affixed by the order of the board of directors of the said
corporation; and that he signed his name thereto by like order for the uses and
purposes therein contained.
IN WITNESS WHEREOF I hereunto set my hand and official seal.
-------------------------------
Notary Public
My commission expires on
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EXHIBIT 2
LONG TERM NOTE
February 28, 2001
$717,558.00
FOR VALUE RECEIVED, Escalon Medical Corp, a Delaware corporation, and
Escalon Vascular Access, Inc., a Delaware corporation, both having an address at
351 East Conestoga Road, Wayne, PA 19087 (each a "Maker"), hereby, jointly and
severally, covenant and promise to pay to Radiance Medical Systems, Inc., a
Delaware corporation, having an address at 13700 Alton Parkway, Suite 160,
Irvine, CA 92618 ("Payee"), at Payee's address first above written or at such
other address as Payee may designate in writing, Seven Hundred and Seventeen
Thousand Five Hundred and Fifty Eight Dollars ($717,558.00), lawful money of the
United States of America, together with interest thereon computed from the date
hereof at a rate per annum equal to 1 percentage point above the prime rate as
published in the Wall Street Journal (New York Edition) on the last business day
of each quarter (to be applicable to the succeeding quarter), which only
interest shall be payable in quarterly installments commencing on the 31st day
of May, 2001, and continuing on the 31st day of August, the 30th day of November
and the 28th day of February. Thereafter, beginning on the 15th day of April,
2002 Maker shall pay principal and interest in eleven (11) quarterly
installments. To the extent any payment of principal or interest is not paid
when due, it shall accrue interest until paid at the rate of one and one-half
percent (1-1/2%) per month, or the maximum rate permitted by law, which is less.
EACH MAKER JOINTLY AND SEVERALLY COVENANTS AND AGREES WITH PAYEE AS FOLLOWS:
22. Maker will pay the indebtedness evidenced by this Note as provided
herein.
23. Maker shall not have the right to prepay the indebtedness evidenced
by this Note, in whole or in part, unless Maker shall give Payee ten (10) days
notice of its intention to prepay such indebtedness and shall pay to Payee on
the date of the prepayment all interest accrued to said date and a prepayment
premium. The prepayment premium shall be calculated by multiplying the remaining
principal balance times the excess, if any of the rate of return achieved by
Payee on cash or cash equivalents owned by Payee for the most recent quarter
prior to the date of prepayment over the Prime Rate plus 1% on the date of
prepayment, divided by twelve (12) months, multiplied by the number of remaining
months to maturity (see attached example on Exhibit A) The Prime Rate shall be
defined as the published Prime Rate in the Wall Street Journal (New York
edition) on the date of prepayment.
24. If any of the following events shall occur:
(a) the Maker defaults in the payment of any principal or
interest due under this Note or the Long Term Note issued in conjunction with
this Note under the
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Amendment and Supplement Agreement and Release, dated as of February 28, 2001,
by and among Payee and each Maker, (together with this Note, the "Notes");
(2) any material default by either Maker of any other material
obligation under the Notes or the Assets Sale and Purchase Agreement, dated
January 21, 1999, by and among Payee and each Maker, as amended;
(3) there shall be a Change in Control of either Maker.
then, and in each and every such case, the Payee shall provide notice to either
or both Makers and provide Makers ten (10) days to begin to cure such default.
Thereafter, if Makers shall not have cured such default, Payee may by written
notice to either or both Makers declare all amounts under this Note to be
forthwith due and payable and thereupon the balance shall become so due and
payable, along with a prepayment premium as calculated in Section 2 above,
without presentation, protest or further demand or notice of any kind, all of
which are hereby expressly waived.
25. For purposes hereof a Change in Control of Escalon Vascular Access,
Inc., shall be deemed to have occurred if Escalon Vascular Access, Inc. is no
longer a wholly owned subsidiary of Escalon Medical Corp. For purposes hereof a
Change of Control of Escalon Medical Corp. shall be deemed to have occurred only
(i) if Escalon Medical Corp. is liquidated or dissolved, (ii) if Escalon Medical
Corp. sells substantially all of its assets or (iii) if Escalon Medical Corp is
acquired by another entity.
26. Maker hereby waives presentment for payment, demand, protest, and
notice of dishonor. If an action is brought for collection under this Note, the
Payee shall be entitled to receive all costs of collection, including, without
limitation, its reasonable attorneys' fees.
27. Any notice or demand required or permitted to be made or given
hereunder shall be deemed sufficiently made and given if given by the mailing of
such notice or demand by certified or registered mail, return receipt requested,
with postage prepaid, addressed, if to either Maker, at such Maker's address
first above written, or if to Payee, at Payee's address first above written. Any
party may change its address by like notice to the other party.
28. This Note may not be changed or terminated orally, but only by an
agreement in writing signed by the party against whom enforcement of any change,
modification, termination, waiver, or discharge is sought. This Note shall be
construed and enforced in accordance with the laws of Delaware.
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IN WITNESS WHEREOF, Maker has executed this Note as of the date first
above written.
ESCALON MEDICAL CORP
ATTEST:
By:
-----------------------------------
Richard J. DePiano, CEO
By
---------------------------------
Secretary
ESCALON VASCULAR ACCESS, INC.
By:
-----------------------------------
Richard J. DePiano, CEO
Exhibit A
See Exhibit 3 of Amendment Agreement
COMMONWEALTH OF PENNSYLVANIA, COUNTY OF , ss.
On this ___ day of February, 2001, before me, the undersigned officer,
personally appeared ____, to me known, who being duly sworn, did depose and say
and did acknowledge that he is the CEO of Escalon Medical Corp, the corporation
described in and which executed the foregoing Note; that he knows the seal of
said corporation; that the seal affixed to said Note is such corporate seal;
that it was so affixed by the order of the board of directors of the said
corporation; and that he signed his name thereto by like order for the uses and
purposes therein contained.
IN WITNESS WHEREOF I hereunto set my hand and official seal.
-------------------------------
Notary Public
My commission expires on
(b) Reports on Form 8-K:
None.
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