EXHIBIT 99.12
_______________________
PURCHASE AGREEMENT
DATED AS OF FEBRUARY 25, 1998
BY AND BETWEEN
PREMIER LASER SYSTEMS, INC.
AND
JB OXFORD & COMPANY
_______________________
TABLE OF CONTENTS
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Page
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ARTICLE I DEFINITIONS................................................ 2
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1.1 Defined Terms.............................................. 2
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ARTICLE II PURCHASE AND SALE OF SECURITIES............................ 4
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2.1 Purchase and Sale of Securities............................ 4
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2.2 Purchase Consideration..................................... 5
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2.3 Closing.................................................... 5
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2.4 Purchase Consideration Adjustment.......................... 6
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ARTICLE III REPRESENTATIONS AND WARRANTIES............................. 7
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3.1 Representations and Warranties of Premier.................. 7
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3.2 Representations and Warranties of Seller................... 9
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ARTICLE IV COVENANTS.................................................. 12
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4.1 Covenants of the Seller.................................... 12
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4.2 Covenants of Premier....................................... 12
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4.3 Reasonable Best Efforts.................................... 13
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ARTICLE V CONDITIONS TO CLOSING...................................... 13
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5.1 Conditions to Obligation of Premier........................ 13
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5.2 Conditions to Obligations of the Seller.................... 14
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ARTICLE VI INDEMNIFICATION; ARBITRATION............................... 15
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6.1 Indemnification Procedures................................. 15
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6.2 Arbitration................................................ 15
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ARTICLE VII GENERAL PROVISIONS......................................... 16
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7.1 Termination of Purchase Agreement.......................... 16
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7.2 Counterparts............................................... 17
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7.3 Notices.................................................... 17
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7.4 Governing Law.............................................. 18
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7.5 Interpretation............................................. 19
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7.6 Successors and Assigns..................................... 19
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7.7 Entire Agreement; No Oral Waiver; Construction............. 19
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7.8 Severability............................................... 20
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7.9 No Third-party Rights...................................... 20
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7.10 Remedies................................................... 20
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7.11 Further Assurances......................................... 20
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7.12 Survival of Representations................................ 20
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This Purchase Agreement together with any addenda thereto (the
"Purchase Agreement"), is made and entered into as of February 25, 1998, by and
between Premier Laser Systems, Inc., a California corporation ("Premier") and JB
Oxford & Company, a Utah corporation (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 259,308 shares of Ophthalmic
Imaging Systems, 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 entered into a Warrant Agreement, dated November
21, 1995 (the "Warrant Agreement"), with the Company, under which Seller was
granted and owns, and on the Closing Date will own, of record a warrant, in the
form attached hereto as Exhibit "D" (the "Warrant"), to purchase 250,000 shares
of Company Common Stock (the Warrant together with the Shares constitute the
"Securities");
WHEREAS, Premier is currently attempting to purchase additional shares
of the Company Common Stock under separate purchase agreements (the "Other
Agreements"), between Premier and a number of other sellers;
WHEREAS, as a condition and an inducement to the Seller to enter into
this Purchase Agreement, Premier has agreed to commence a tender offer (the
"Tender Offer") for the remainder of the Company Common Stock following the
completion of the transactions related to this Purchase Agreement and the Other
Agreements, such Tender Offer to be at a tender price equal to or greater to the
purchase price per Share payable pursuant to this Purchase Agreement;
WHEREAS, concurrent with the execution of this Purchase Agreement, and
as a condition hereto and thereto, the Company and Premier will enter into a
Stock Purchase Agreement (the "Acquisition Agreement") of even date herewith
setting forth the terms and conditions of such Tender Offer and the acquisition
by Premier of any such Company Common Stock;
WHEREAS, the parties want to insure that the Seller receives
compensation for its shares of Company Common Stock tendered under this Purchase
Agreement at a rate equal to that which is to be paid under the Tender Offer;
WHEREAS, the Stock Consideration (as herein defined) could appreciate
or decline in value between the Closing Date and the date the Tender Offer
closes;
WHEREAS, in order to insure Seller receives the same per share
compensation relative to the parties who tender shares under the Tender Offer,
the Purchase Consideration (as herein defined) issued to Seller may need to be
retroactively readjusted at the Tender Offer's closing;
WHEREAS, the Seller desires to sell, and Premier wishes to purchase,
the Securities 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:
"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.
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"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
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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.
"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
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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 SECURITIES
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2.1 Purchase and Sale of Securities. Upon the terms and subject to
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the conditions of this Purchase Agreement, Premier agrees to purchase from the
Seller, and the Seller agrees to sell to Premier, the Securities free and clear
of any Lien or Restriction created by the Seller or otherwise binding upon any
such Securities in exchange for the Purchase Consideration (as defined in
Section 2.2 of Purchase Agreement), as may be adjusted pursuant to Section 2.4
hereof.
2.2 Purchase Consideration.
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(a) Purchase Consideration for the Shares. Premier shall pay to
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Seller in respect of each share of Company Common Stock sold and purchased
hereunder (a) $1.75 net in cash (the "Share Cash Consideration"); (b) that
number of shares of Premier Class A Common Stock, no par value (the "Premier
Common Stock") equal to the Stock Component (the "Share Stock Consideration");
(c) one Premier Class C Warrant (the "Class
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C Warrant"); and (d) one Premier Class D Warrant (the "Class D Warrant" together
with the Class C Warrant issued under this Section 2.2(a) constitute the
"Warrant Consideration for Shares").
(b) Purchase Consideration for the Warrant. Premier shall pay
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to Seller in respect of each share of Common Stock eligible for purchase under
the Warrant (a) $0.80 net in cash (the "Warrant Cash Consideration"); (b) that
number of shares of Premier Common Stock equal to the Stock Component (the
"Warrant Stock Consideration"); (c) one Class C Warrant; and (d) one Class D
Warrant (the Class D Warrant together with the Class C Warrant issued under this
Section 2.2(b) constitute the "Warrant Consideration for Warrant") (the Share
Cash Consideration together with the Warrant Cash Consideration shall constitute
the "Cash Consideration") (the Share Stock Consideration together with the
Warrant Stock Consideration shall constitute the "Stock Consideration") (the
Warrant Consideration for Shares together with the Warrant Consideration for
Warrant shall constitute the "Warrant Consideration") (the Cash Consideration,
Stock Consideration and Warrant Consideration together shall constitute the
"Purchase Consideration").
2.3 Closing.
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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 the date hereof and (ii) such other date, time and place as the
parties shall otherwise mutually agree (in either event, the date of the Closing
being referred to herein as the "Closing Date").
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(b) At the Closing, the following actions (collectively, the
"Transactions") shall occur:
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(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 constituting the Stock Consideration 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 constituting the Warrant Consideration (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 Securities to evidence the transfer to Premier of good
and marketable title in and to all of the Securities owned by the Seller
free and clear of any Lien or Restriction on such Securities (other than
any Lien or Restriction imposed pursuant to the terms of this Purchase
Agreement or the Warrant 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.
2.4 Purchase Consideration Adjustment. In order to insure that
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Seller receives the same per share Purchase Consideration as that to be paid
under the Tender Offer, Seller hereby agrees to allow Premier to retroactively
readjust the amount of Purchase Consideration previously paid or granted to
Seller if, at the Expiration Date (as that term is defined and used within the
Acquisition Agreement) the Cash Consideration, the Stock Consideration or the
Warrant Consideration that Seller would have received under the Tender Offer
differs from that initially paid or granted to Seller under this Purchase
Agreement. If such Warrant Consideration amounts are disparate, Premier shall
either grant Seller the right to purchase additional shares of Premier Common
Stock (the "Additional Warrant Shares") or cancel Seller's existing
documentation evidencing the Warrant Consideration and reissue new documentation
evidencing the reduced number of shares Seller is eligible to purchase.
Similarly, if the Stock Consideration amounts are found to be disparate, Premier
shall either issue Seller additional shares of Premier Common Stock (the
"Additional Stock Payment Shares") or cancel Seller's existing shares and
reissue a certificate evidencing fewer shares to the effect that Seller shall
ultimately receive the same per share Stock Compensation as would have been
provided under the Tender Offer. If the amounts of Cash Consideration are
disparate and in Seller's favor, Premier shall pay Seller the additional cash.
If such difference is in Premier's favor, Seller shall remit the difference in
cash to Premier. The readjustment and exchange of Cash Consideration shall be
completed to the effect that Seller receives the same per share Cash
Consideration as he, she or it would have under the Tender Offer.
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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
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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.
Premier has the requisite corporate power, authority and legal capacity to enter
into and perform all of its obligations under this Purchase Agreement and to
consummate the Transactions hereunder. 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 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
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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
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Warrant Consideration to be issued to Seller as Purchase Consideration pursuant
to this Purchase Agreement and any Premier Common Stock purchasable upon
exercise of such Warrant Consideration, 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.
(f) Limitations on Transferability. Premier acknowledges that the
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Securities are being acquired from an Affiliate of the Company without
registration under the Securities Act or the securities laws of any other
applicable jurisdiction, and that such Securities are being sold to Premier
pursuant to an exemption thereto. Premier is acquiring the Securities solely
for its own account, for investment purposes only, and not with an intent or
view to their distribution within the meaning of Section 2(11) of the Securities
Act. Premier understands that such Securities may not be freely transferable
without registration under the Securities Act or the securities laws of any
other applicable jurisdiction unless subsequently registered or an exemption
therefrom is available.
(g) 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 Seller in connection with this Purchase
Agreement or the Transactions for which Premier would be liable following the
Closing.
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:
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(a) Organization, Standing and Corporate Power of the Seller. The
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Seller has the requisite corporate 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 Securities to Premier)
and to comply with Sections 4.1(a), 4.1(b) and 4.1(c)). 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 entered into by
the Seller, other than such agreements, the conflict with or breach of which,
individually or in the aggregate, could not reasonably be expected to prevent or
materially delay the consummation of the Transactions.
(b) Corporate Authorization. The execution, delivery and performance
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by Seller of this Purchase Agreement and the consummation by Seller of the
transactions contemplated hereby have been duly authorized by all necessary
corporate action, including by resolution of the Board of Directors of Seller.
This Purchase Agreement has been duly executed and delivered by Seller and
constitutes a valid and binding agreement of Seller, enforceable against 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 or equity or at
law).
(c) Title to Securities. At the Closing the Seller will be the direct
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and record owner of the Securities. Except as set forth in the immediately
preceding sentence or on Schedule 3.2(c), 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 Securities 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 Securities, free and clear of any Liens or
Restrictions and it will have the full legal right, power and authority to
assign, transfer and deliver such Securities to Premier pursuant hereto. At the
Closing, the Seller will have the sole voting power, and sole power of
disposition, with respect to all of such Securities and there will be no
restrictions on the Seller's ability to transfer such Securities.
(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 Stock
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Consideration and the Warrant Consideration 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 Stock Consideration and the Warrant Consideration 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 Stock Consideration and the Warrant Consideration 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
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not transfer any of the Stock Consideration or the Warrant Consideration
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 Stock Consideration and Warrant Consideration 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 Stock Consideration 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. THE
SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO RESTRICTIONS ON
TRANSFER AND ARE SUBJECT TO POSSIBLE CANCELLATION UNDER THAT CERTAIN
PURCHASE AGREEMENT OF EVEN DATE HEREWITH BETWEEN PREMIER LASER SYSTEMS,
INC. AND THE HOLDER.
(ii) the Warrant Consideration 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. THIS WARRANT AND THE SHARES OF COMMON STOCK
PURCHASABLE HEREUNDER ARE SUBJECT TO RESTRICTIONS ON TRANSFER AND ARE
SUBJECT TO POSSIBLE CANCELLATION UNDER THAT CERTAIN PURCHASE AGREEMENT OF
EVEN DATE HEREWITH BETWEEN PREMIER LASER SYSTEMS, INC. AND HOLDER.
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
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commission by Premier in connection with this Purchase Agreement or the
Transactions for which the Seller would be liable following the Closing.
ARTICLE IV
COVENANTS
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4.1 Covenants 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 Securities, 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.
(b) Exchange of Stock Consideration or Warrant Consideration. In the
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event the Stock Consideration or Warrant Consideration must be adjusted as
described in Section 2.4, Seller hereby agrees to return to Premier, within five
(5) business days after notice, the certificate(s) reflecting the shares of
Premier Common Stock and/or the documentation related to the Warrant
Consideration for reissuance.
(c) Consent to Transfer of Warrant. Seller shall use its best efforts
------------------------------
to cause the Company to execute the Consent to Transfer of Warrant in the form
attached hereto as Exhibit "E."
4.2 Covenants of Premier.
--------------------
(a) Registration Rights Agreement. Premier shall cause the parties to
-----------------------------
enter into that certain Registration Rights Agreement in the form of Exhibit
"A."
(b) Purchases of Company Common Stock Prior to the Closing. Premier
------------------------------------------------------
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%.
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(c) Tender Offer. Following the Closing, Premier agrees to use its
------------
best efforts to effect a tender offer (the "Tender Offer") for the purchase of
the then remaining outstanding shares of Company Common Stock.
(d) Execution of Acquisition Agreement. Premier concurrently
----------------------------------
herewith, shall execute and deliver the Acquisition Agreement and the Other
Agreements, and shall use its best efforts to satisfy the terms and conditions
of, to perform the obligations to be performed by it under, and the consummation
of the transactions contemplated by, the Acquisition Agreement.
4.3 Reasonable Best Efforts. 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.
ARTICLE V
CONDITIONS TO CLOSING
---------------------
5.1 Conditions to Obligation of Premier. The obligation of Premier
-----------------------------------
to consummate the purchase of the Securities is further subject to the
satisfaction (or waiver by Premier) of the following conditions:
(a) Representations and Warranties. The representations and
------------------------------
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.
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(c) No Injunction. No preliminary or permanent injunction or order
-------------
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.
(d) Consent to Transfer of Warrant. Premier shall have received a
------------------------------
Consent to Transfer of Warrant in the form attached hereto as Exhibit "E"
executed by the Company.
(e) Acquisition Agreement. Premier and the Company shall have
---------------------
executed and delivered, contemporaneously with this Purchase Agreement, the
Acquisition Agreement by and between Premier and the Company, dated February 25,
1998, and Company shall not be in breach or default of its obligations and
agreements thereunder.
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 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
-----------------------------
into that certain Registration Rights Agreement in the form of Exhibit "A."
(d) Acquisition Agreement. Premier and the Company shall have executed
---------------------
and delivered, contemporaneously with this Purchase Agreement, the Acquisition
Agreement by and between Premier and the Company, dated February 25, 1998, and
Premier shall not be in breach or default of its obligations and agreements
thereunder.
-14-
ARTICLE VI
INDEMNIFICATION; ARBITRATION
----------------------------
6.1 Indemnification Procedures.
--------------------------
(a) Premier agrees to indemnify and hold harmless Seller and each
person who controls Seller within the meaning of Section 15 of the Securities
Act of 1933, as amended, or Section 20 of the Securities Exchange Act of 1934,
as amended, from and against any and all losses, claims, damages, liabilities
and judgments (including without limiting the generality of the foregoing the
reasonable fees and expenses of counsel incurred in connection with any action,
suit or governmental or regulatory proceeding) resulting from and Indemnifiable
Matter. "Indemnifiable Matter" means a claim by or on behalf of a shareholder
or former shareholder of the Company alleging, in substance, that Seller's
entry into and performance of this Purchase Agreement breached a fiduciary or
substantially similar obligation owed to such person (a "Fiduciary Duty Claim");
provided, however, (i) no matter shall constitute and Indemnifiable Matter
- -------- -------
unless the Tender Offer is not completed (regardless of the reason therefor),
and (ii) a claim shall not constitute an Indemnifiable Matter if it is
accompanied by the assertion of other causes of action that do not constitute a
Fiduciary Duty Claim (including without limiting the generality of the foregoing
a claim founded on alleged misrepresentations or omissions or other misconduct
by Seller in advising a brokerage client).
(b) In case any action shall be brought against Seller or any person
controlling Seller, as herein above provided, based upon an Indemnifiable
Matter, Seller or such person shall promptly notify Premier in writing and
Premier shall assume the defense thereof, including the employment of counsel
selected by Seller or such controlling person and reasonably satisfactory to
premier and payment of all fees and expenses. Premier shall not be liable for
the settlement of any such action effected without the written consent of
Premier, but if settled with the written consent of Premier, premier agrees to
indemnify and hold harmless Seller and each such controlling person from and
against any loss or liability by reason of such settlement. Premier shall not,
without prior written consent of the indemnified party, effect any settlement of
any pending or threatened proceeding in respect of which any indemnified party
is or could have been a party and indemnity could have been sought hereunder by
such indemnified party, unless such settlement includes and unconditional
release of such indemnified party from all liability for claims that are the
subject matter of such proceeding.
6.2 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,
-15-
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 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 Securities 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);
-16-
(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)).
(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 material
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, 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:
-17-
If to Premier:
Premier Laser Systems, Inc.
3 Morgan
Irvine, California 92618
Attn: Secretary
Fax: (714) 951-7218
with a copy to:
Paul, Hastings, Janofsky & Walker LLP
695 Town Center Drive, 17/th/ Floor
Costa Mesa, California 92626-1924
Attn: Peter J. Tennyson, Esq.
Fax: (714) 979-1921
If to Seller:
JB Oxford & Company
9665 Wilshire Blvd., Ste. 300
Beverly Hills, California 90212
Attention: Scott Monson, Esq.
Fax: (310) 385-2237
with a copy to:
Irell & Manella LLP
333 So. Hope Street, Ste. 3300
Los Angeles, California 90071
Attention: Richard Wirthlin, Esq.
Fax: (213) 229-0515
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
-18-
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.
7.7 Entire Agreement; No Oral Waiver; Construction. This Purchase
----------------------------------------------
Agreement, any addenda 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.
-19-
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.
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.
[SIGNATURE PAGE FOLLOWS]
-20-
[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/ Colette Cozean
-------------------------
Name:________________________
Title:_______________________
"Seller"
JB OXFORD & COMPANY
By:__________________________
Name:________________________
Title: ______________________
-21-
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:__________________________
Name:________________________
Title:_______________________
"Seller"
JB OXFORD & COMPANY
-----------------------------
Name:/s/ Stephen Rubenstein
------------------------
PRESIDENT
STEPHEN RUBENSTEIN
EXHIBIT "A"
REGISTRATION RIGHTS AGREEMENT
EXHIBIT "B"
FORM OF CLASS C WARRANT
EXHIBIT "C"
FORM OF CLASS D WARRANT
EXHIBIT "D"
FORM OF WARRANT
-26-
EXHIBIT "E"
CONSENT TO TRANSFER OF WARRANT
-27-