Exhibit 10.59
ASSET PURCHASE AGREEMENT
THIS ASSET PURCHASE AGREEMENT, dated as of January 31, 2001
(this "Agreement"), by and among BAUSCH & LOMB INCORPORATED, a New York
corporation ("Buyer"), BAUSCH & LOMB SURGICAL, INC., a Delaware corporation and
wholly-owned subsidiary of Buyer ("BLS"), OPTEX OPHTHALMOLOGICS, INC., a
Delaware corporation ("Seller"), and ATLANTIC TECHNOLOGY VENTURES, INC., a
Delaware corporation ("Atlantic").
WHEREAS, Seller, a majority-owned subsidiary of Atlantic, and BLS are
parties to a Development and License Agreement entered into on May 14, 1998, as
amended by Amendment No. 1 to Development and License Agreement dated September
16, 1999 (collectively, the "Development Agreement"), a copy of which is
attached hereto as Exhibit A, pursuant to which the parties reached agreement
relating to the joint development and commercialization by BLS and Seller of the
Catarex Products (as defined in the Development Agreement) on a world wide basis
(the "Project"); and
WHEREAS, Seller, Buyer and BLS wish to terminate the Development
Agreement, and Seller wishes to sell and transfer to B&L, and B&L wishes to
purchase, substantially all of the assets related to the Project, subject to the
terms and conditions of this Agreement
NOW THEREFORE, in consideration of the foregoing premises, the parties
hereto intending to be legally bound, agree as follows:
ARTICLE 1
DEFINITIONS
For purposes of this Agreement, capitalized terms used herein, and not
otherwise defined in this Article 1 or elsewhere herein shall have the meanings
specified in the Development Agreement:
1.1 "Action" means any action, complaint, petition, investigation, suit or
other proceeding, whether civil or criminal, in law or in equity, or before any
arbitrator or Governmental Entity.
1.2 "Affiliate" means any person, group of persons, company or other
enterprise (collectively a "Person") that is controlled by, controls, or is
under common control with, such Person for so long as such control relationship
continues to exist. "Control" as used in this definition means the possession,
directly or indirectly, of the power to direct or cause the direction of the
management of a Person, whether through ownership of voting securities, by
contract or otherwise.
1.3 "Clinical Demonstration" means the clinical trial described in Exhibit
B attached hereto.
1.4 "Encumbrances" means all claims, security interests, liens, pledges,
charges, escrows, options, proxies, rights of first refusal, preemptive rights,
mortgages, hypothecations, prior assignments, title retention agreements,
indentures, security agreements, leases, easements, encumbrances or restrictions
(whether on voting, sale, transfer, disposition or otherwise), whether imposed
by agreement, law, equity or otherwise.
1.5 "Field" means the research and development, manufacture, use,
importation, offer to sell or sale of any product or service related to the
removal of the human lens in connection with cataract surgery.
1.6 "Governmental Entity" means any government or any department,
commission, board, bureau, agency, court, official, political subdivision,
tribunal or other instrumentality of any government, whether federal, state or
local, domestic or foreign.
1.7 "Indemnified Party" means the party entitled to indemnity
hereunder.
1.8 "Indemnifying Party" means the party obligated to provide
indemnification hereunder.
1.9 "Laws" means all laws, statutes, regulations, constitutional
provisions, ordinances, interpretations, decrees, injunctions, judgments,
orders, rulings, assessments or writs of any Governmental Entity in effect at or
prior to Closing.
1.10 "Loss" means any action, cost, damage, disbursement, expense,
liability, loss, deficiency, diminution in value, obligation, penalty, fine,
assessment or settlement of any kind or nature, whether foreseeable or
unforeseeable, including, but not limited to, reasonable and documented interest
or other carrying costs, penalties, legal, accounting and other professional
fees and expenses incurred in the investigation, collection, prosecution and
defense of claims, actual or threatened, inquiries, hearings or other legal or
administrative proceedings, and amounts paid in settlement, that may be imposed
on or otherwise incurred or suffered by the specified Person; provided, however,
that "Loss" shall not include any amount that is received by such specified
Person under a valid and collectible insurance policy.
1.11 "Order" means any decree, injunction, judgment, order, ruling,
assessment or writ.
1.12 "Permit" means any waiver, exemption, variance, franchise,
certificate of authority, order, permit, authorization, license or similar
approval.
1.13 "Permitted Encumbrances" means (a) liens for Taxes, assessments and
other governmental charges not yet due and payable, (b) immaterial mechanics',
workmen's, repairmen's, warehousemen's, carriers' or other like liens arising or
incurred in the ordinary course of the Project, and (c) other Encumbrances
which, individually or in the aggregate, are not material.
1.14 "Person" means an association, a corporation, an individual, a
partnership, a trust or any other entity or organization, including a
Governmental Entity.
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1.15 "Principal Employees" means John Sorensen, Michael Mittelstein
and Soheila Mirhashami.
1.16 "Royalty Term" means the period commencing with the date of First
Commercial Use and ending upon the expiration of the last to expire United
States Optex Patent.
1.17 "Taxes" means all taxes of any kind imposed by a Governmental Entity
of the United States, and any payments made to another party pursuant to a tax
sharing arrangement, indemnity or other similar arrangement, including, without
limitation, those on, or measured by or referred to as, income, gross receipts,
financial operation, sales, transfer, use, ad valorem, valued added, franchise,
profits, license, withholding, payroll (including all contributions or premiums
pursuant to industry or governmental social security laws or pursuant to other
tax laws and regulations), employment, excise, severance, stamp, occupation,
premium, property, transfer or windfall profits taxes, customs, duties or
similar fees, assessments or charges of any kind whatsoever, together with any
interest and any penalties, additions to tax or additional amounts imposed by
such Governmental Entity with respect to such amounts.
ARTICLE 2
TRANSFER OF THE PROJECT
2.1 Sale and Purchase of Assets. Upon the terms and subject to the
conditions of this Agreement, Buyer shall purchase from Seller and Seller shall
sell, transfer, assign and deliver to Buyer at Closing, all of Seller's interest
in and to the following assets and properties (the "Assets"), free and clear of
any Encumbrances, other than Permitted Encumbrances:
(a) the rights of Seller under contracts and agreements listed on Schedule
2.1(a) attached hereto (the "Assumed Contracts");
(b) all machinery, apparatus, furniture, materials, tools, dies, molds,
supplies and other equipment listed on Schedule 2.1(b) attached hereto
(the "Equipment");
(c) all inventory relating to Catarex Handpieces including, without
limitation, raw materials, work in process, and component parts of Catarex
Handpieces, wherever located (the "Inventory");
(d) all credits, prepaid expenses, advance payments, deposits, deferred
charges, and other current and non-current assets owned by Seller which
relate to the Project, as listed on Schedule 2.1.(d) attached hereto
("Other Current Assets");
(e) all of the intangible property owned by Seller and all of Seller's
interest in any intangible property licensed to Seller that in each case
relates to the Project, including (i) the Optex Patents and other patents
and trademarks (and patent and trademark applications) together with all
divisions, continuations, continuations-in-part, substitutions, reissues,
extensions and foreign counterparts, all as listed on Schedule 2.1(e)
attached hereto (the "Patents and Trademarks"); (ii) all trade names,
trade name licenses and applications, copyrights, copyright licenses and
applications, Know-how, trade secrets, formulae, computer software,
processes, technology, innovations,
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inventions, (including Optex Inventions) manufacturing drawings,
engineering drawings, product designs and product patterns used or to be
used in connection with the Project and/or necessary or desirable to
complete the Project; (iii) all Permits and other governmental
authorizations necessary to carry on the Project (to the extent such
Permits and authorizations are assignable); and (iv) other intangible
property rights owned by Seller on the Closing Date, to the extent the
foregoing are related to the Project and/or are necessary or desirable to
complete the Project (collectively, the "Intangible Property"); and
(f) all catalogs, product literature, manuals, advertising materials,
promotional materials, supplier lists and other books and records (except
Seller's corporate records) owned by Seller on the Closing Date and which
relate, primarily, to the Project, except to the extent Seller is required
by law to retain the same.
2.2 Excluded Assets. Buyer expressly understands and agrees that all
assets and properties of Seller other than the Assets shall be excluded from
the transactions contemplated hereby.
2.3 Assumption of Liabilities. Upon the terms and subject to the
conditions of this Agreement, Buyer agrees, effective at the time of Closing, to
assume the liabilities and obligations of Seller arising from and after the
Closing Date under the Assumed Contracts (the "Assumed Liabilities"). Except for
the Assumed Liabilities, Buyer is not assuming and shall have no obligation to
discharge, pay, perform or be liable for, any debts, liabilities, claims or
obligations of Seller of any nature whatsoever (including, without limitation,
severance obligations to any employees of Seller), whether absolute or
contingent, known or unknown, direct or indirect, asserted or unasserted on or
after the date hereof.
2.4 Passage of Title and Risk of Loss. Title and risk of Loss with respect
to the Assets shall pass to Buyer at Closing except for those Assets in the
physical possession of Seller which are not located at 27452 Calle Arroyo, San
Juan Capistrano, CA 92675, in which case the risk of Loss shall transfer upon
delivery thereof to Buyer.
ARTICLE 3
PURCHASE PRICE AND PAYMENT
3.1 Purchase Price. The total purchase price for the Assets to be paid to
Seller by Buyer shall be Three Million Dollars ($3,000,000), subject to Section
3.3 below (the "Purchase Price"). All payments by Buyer hereunder shall be made
by electronic transfer to a bank account designated by Seller. One Million
Dollars ($1,000,000) of the Purchase Price shall be creditable against Buyer's
obligation to pay Royalties and Minimum Royalties (as hereinafter defined at
Sections 3.3.2 and 7.4, respectively), at the rate of thirty percent (30%) of
any such Royalties and Minimum Royalties when due.
3.2 Allocation of Purchase Price. The Purchase Price shall be
allocated among the Assets as determined by Buyer and provided to Seller on
or before Closing.
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3.3 Additional Purchase Price. In addition to the Purchase Price
payable at Closing, Buyer shall pay Seller additional consideration for the
Assets, as follows:
3.3.1 Japanese Regulatory Approval. One Million Dollars
($1,000,000) if and only if Buyer or any Affiliate of Buyer receives Japanese
Regulatory Approval.
3.3.2 Royalties. Buyer shall pay Seller royalties ("Royalties")
during the Royalty Term as follows:
(a) Buyer shall pay Seller an earned royalty of seven percent (7%)
of Net Sales of Catarex Products. For the purpose of Royalty calculations,
the Net Sales price of the Catarex/Millennium Unit shall be deemed to be
$25,000 for markets where Buyer has direct sales and $20,000 where Buyer
sells through unaffiliated distributors. For purposes of determining the
Net Sales of Catarex Consumables the Parties shall, on an annual basis in
advance of the year for which prices are to apply, agree in good faith on
the percentage of the Net Sales prices for Catarex Combination Products to
be allocated to the Catarex Consumables included therein, which
percentage(s) shall reflect an appropriate allocation of the Net Sales
price of the Catarex Combination Product based upon the costs of and
profit margins for each product item contained in a Catarex Combination
Product.
(b) Buyer shall pay Seller an additional royalty of three percent
(3%) of the product of (A) Net Sales of Catarex Consumables in Key
Markets, times (B) the then fractional market share of Liquid Polymer
Lenses in the United States intraocular lens market, as measured by
published Deloitte & Touche (or similar third party surveys if
unavailable) survey of such market; unless during such calendar quarter an
alternative cataract removal system which enables the use of accommodating
liquid polymer lens implantation has achieved greater than ten percent
(10%) market share of sales of cataract removal systems in the United
States as measured by published surveys of such market. Should a published
survey not be available to the parties, market share shall be determined
by other published and mutually agreeable market share data, or in the
absence of such market share data then as reasonably determined by the
parties in good faith.
(c) Within forty-five (45) days after the end of each calendar
quarter, Buyer, Buyer's Affiliates and/or Buyer's sublicensee(s) as the
case may be, shall pay to Seller the Royalty payment due for such quarter
in U.S. dollars.
(d) For any sales made in currencies other than the U.S. dollar,
such Royalty shall be converted from the currency in which the sale was
made into U.S. dollars at the exchange rate published in the Wall Street
Journal for the last business day of the calendar quarter during which
such sale occurs.
(e) Together with the delivery of each such Royalty payment, Buyer,
Buyer's Affiliates and/or Buyer's sublicensee(s), as the case may be,
shall deliver to Seller a written accounting showing its computation of
Royalties due under this Agreement for
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such quarter. Such accounting shall set forth gross sales, Net Sales, an
account of the calculation of Net Sales, the exchange rate applied, if
any, and the total Royalties due for the quarter in question.
(f) Buyer shall keep full and accurate books and records reflecting
the Royalties on Net Sales and the data used in arriving at Net Sales and
the amount of Royalties payable to Seller hereunder for no less than one
(1) year after the end of each such quarter. Buyer shall permit Seller,
once within any twelve (12) month period, at Seller's expense, to have
such books and records examined by independent certified public
accountants retained by Seller and reasonably acceptable to Buyer, during
regular business hours upon reasonable advance notice, but not later than
one (1) year following the rendering of any such reports, accounting and
payments. Such independent accountants shall keep confidential any
information obtained during such examination. If such examination
discloses a discrepancy of five percent (5%) or more in any amount due to
Seller under this Agreement, Buyer shall reimburse Seller for the
out-of-pocket cost of such examination, including without limitation any
reasonable professional fees and expenses incurred by Seller.
(g) Any amount not paid when due under this Agreement shall bear
interest at one and one-half percent (1.5%) per month, compounded monthly
or, if less, the highest amount permissible under applicable law;
provided, however, that no such interest shall be payable with respect to
any amounts subject to a bona fide dispute between Seller and Buyer.
3.4 Tax. All payments made to Seller by Buyer hereunder are expressed net
of any Taxes that may be payable, and Seller and Buyer shall be jointly
responsible for any Tax payable thereon.
ARTICLE 4
CLOSING
4.1 Closing Date. The closing of the transactions contemplated under
Section 2 (the "Closing") shall take place at such place as agreed between the
parties and as promptly as possible after Seller's performance of its
obligations under Section 8.3.5, subject to satisfaction or waiver of the other
conditions set forth in Article 8 below. The day of Closing shall be referred to
herein as the "Closing Date."
4.2 Closing Deliverables.
4.2.1 Items to be Delivered at the Closing by Seller. At the
Closing, Seller shall deliver or cause to be delivered to Buyer:
(a) Instruments of sale and assignment in form and substance
reasonably satisfactory to Buyer and its counsel evidencing and effecting
the sale and transfer to Buyer of the Assets.
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(b) Deliverables described in Section 8.3 to the extent that any
such deliverables have not been delivered to Buyer as of the Closing Date.
4.2.2 Items to be Delivered at the Closing by Buyer. At the
Closing, Buyer shall deliver to Seller:
(a) The Purchase Price.
(b) Instruments of Assumption in form and substance reasonably
satisfactory to Seller and its counsel evidencing and effecting the
assumption by Buyer of the Assumed Liabilities.
(c) Deliverables described in Section 8.2 to the extent that any
such deliverables have not been delivered to Seller as of the Closing
Date.
ARTICLE 5
REPRESENTATIONS AND WARRANTIES
5.1 Representations and Warranties of Seller and Atlantic. Seller and
Atlantic represent and warrant to Buyer as of the date hereof (except as
otherwise indicated) as follows:
(a) Organization and Related Matters. Seller is a corporation
duly organized and validly existing under the laws of Delaware. Seller
has all necessary corporate power and authority to execute, deliver and
perform this Agreement.
(b) Authorization; No Conflicts. The execution, delivery and
performance of this Agreement and any agreement related hereto has been
duly and validly authorized by Seller. This Agreement constitutes the
legal, valid and binding obligations of Seller and Atlantic, enforceable
against it in accordance with its terms, except as enforceability is
limited by (1) any applicable bankruptcy, insolvency, reorganization,
moratorium or similar law affecting creditors' rights generally, or (2)
general principles of equity, whether considered in a proceeding in equity
or at law. The execution, delivery and performance by Seller and Atlantic
of this Agreement and transactions contemplated herein will not (i)
conflict with or result in a breach or violation of any term or provision
of, or (with or without notice or passage of time, or both) constitute a
breach or default under, the charter documents or bylaws of Seller or
Atlantic or any Assumed Contract, (ii) result in the imposition of any
Encumbrance against any of the Assets, (iii) violate any applicable Law,
or (iv) violate any Order of any Governmental Entity. The execution,
delivery and performance by Seller and Atlantic of this Agreement and the
transactions contemplated hereby will not require filing or registration
with, or the issuance of any Permit by, any third party or Governmental
Entity under the terms of any applicable Law or contracts to which Seller
is a party.
(c) Title to and Condition of the Assets. Seller has, and is
conveying to Buyer under this Agreement, good and marketable title to the
Assets, and such Assets are free and clear of all Encumbrances except
Permitted Encumbrances. Seller has all right, power and authority to sell,
convey, assign, transfer and deliver the Assets to Buyer in
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accordance with the terms of this Agreement. The Equipment has been
regularly and appropriately maintained and repaired in accordance with the
manufacturers' specifications, except where failure to do so would not
reasonably be expected to have a material adverse effect on the Equipment,
and is in good condition and repair (normal wear and tear accepted). Any
machinery, apparatus, materials, tools, dies, molds or supplies of Seller
upon which successful completion of the Project depends is included in the
Equipment.
(d) No Other Liabilities or Contingencies. Except for the Assumed
Liabilities and the costs referred to in Section 6.5, Seller has no
liabilities of any nature, whether accrued, unmatured, absolute,
contingent or otherwise, and whether due or to become due, probable of
assertion or not, relating to the Project.
(e) Legal Proceedings. There is no Action pending or, to the
knowledge of Seller, threatened in writing, against or affecting Seller,
the Assets or any aspect of the Project that individually or when
aggregated with one or more other Actions has or might reasonably be
expected to have a material adverse effect on the Project, the Assets (or
the use, operation or value thereof), the Assumed Contracts, Seller's
ability to perform this Agreement or any aspect of the transactions
contemplated by this Agreement. There is no Order to which Seller is
subject that has or might reasonably be expected to have a material
adverse effect on the Project, the Assets (or the use, operation or value
thereof), the Assumed Contracts, Seller's ability to perform this
Agreement or any aspect of the transactions contemplated by this
Agreement.
(f) Compliance. Since January 1, 1998, the Seller has
conducted the Project in material compliance with applicable Laws.
(g) Permits. Seller holds all Permits that are required by any
applicable Law to permit it to conduct the Project as now conducted and
use the Assets as they are now used, except for Permits the absence of
which would not reasonably be expected to have a material adverse effect
on the Project, and all such Permits are valid and in full force and
effect and are listed on Schedule 5.1(g) attached hereto. No suspension,
cancellation or termination of any of such Permits is threatened or
imminent.
(h) Assumed Contracts. Each Assumed Contract was entered into in the
ordinary course of the Project and on an arms-length basis. Copies of the
Assumed Contracts, including all amendments and supplements, have been
delivered to Buyer. Each Assumed Contract is valid and binding and, except
as disclosed on Schedule 5.1(h) attached hereto, upon assignment by Seller
pursuant to this Agreement, will be enforceable by Buyer, without the
requirement of any third party consent, except as enforceability is
limited by (1) any applicable bankruptcy, insolvency, reorganization,
moratorium or similar law affecting creditors' rights generally, or (2)
general principles of equity, whether considered in a proceeding in equity
or at law. Other than the Assumed Contracts, Seller is not a party to any
contracts or agreements that are material to the Project.
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(i) Intangible Property. Other than the Patents and Trademarks,
Seller has no interest in any patents and trademarks (or patent and
trademark applications) that relate to the Project. Seller has ownership
of, and the right to assign, free and clear of any Encumbrances, all the
Intangible Property, the absence of which would have a material adverse
effect on the Project. Seller does not use any of the Intangible Property
by consent of any Person and is not required to and does not make any
payments to others with respect thereto. Seller has in all material
respects performed all obligations required to be performed by it, and
Seller is not in default in any material respect under any Assumed
Contract relating to any of the Intangible Property. Seller has not
received any notice to the effect (or are not otherwise aware) that the
Intangible Property, or any use by Seller in connection with the Project
of any of the Intangible Property, conflicts with or infringes (or
allegedly conflicts with or infringes) the rights of any other Person.
Other than disclosure in connection with the prosecution of any patent
applications, Seller has maintained the Optex Inventions and Know-How in
confidence and has not disclosed the same to any third party without that
third party being under an obligation to maintain the confidential nature
of the Optex Inventions and Know-How.
(j) Inventory. All Inventory as of the Closing Date is set forth on
Schedule 5.1(j) attached hereto, and each item is in good condition,
conforms to applicable specifications and may be used for the purposes
intended.
(k) Corporate Opportunities. Other than in connection with the
Project, neither Seller, Atlantic nor, to the knowledge of Seller or
Atlantic, any of the Principal Employees is engaged, directly or
indirectly, through an ownership interest or in some other capacity, in
the research, development, production, marketing or selling of products or
services within the Field and/or utilizing Know-How or Optex Inventions.
5.2 Representations and Warranties of Buyer. Buyer represents and warrants
to Seller as of the date hereof (except as otherwise indicated) as follows:
(a) Organization and Related Matters. Buyer is a corporation duly
organized and validly existing under the laws of New York. Buyer has all
necessary corporate power and authority to conduct its business as now
conducted. Buyer has the necessary corporate power and authority to
execute, deliver and perform this Agreement and any agreement related
hereto. BLS is a corporation duly organized and validly existing under the
laws of Delaware. BLS has all necessary corporate power and authority to
conduct its business as now conducted. BLS has the necessary corporate
power and authority to execute, deliver and perform this Agreement and any
agreement related hereto.
(b) Authorization; No Conflicts. The execution, delivery and
performance of this Agreement and any agreement related hereto has been
duly and validly authorized by Buyer and BLS. This Agreement constitutes
the legal, valid and binding obligations of Buyer and BLS, enforceable
against each of them in accordance with its terms. The execution, delivery
and performance of this Agreement by Buyer and BLS will not (i) conflict
with or result in a breach or violation of any term or provision of, or
(with or without notice or passage of time, or both) constitute a breach
or default under, the respective charter documents or bylaws of Buyer and
BLS, (ii) any contract to which
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Buyer or BLS is a party that is material to the financial condition,
results of operations or conduct of Buyer's or BLS's business,
respectively, (iii) violate any applicable Law, or (iv) violate any Order
of any Governmental Entity. The execution, delivery and performance by
Buyer and BLS of this Agreement and the transactions contemplated hereby
will not require filing or registration with, or the issuance of any
Permit by, any third party or Governmental Entity under the terms of any
applicable Law or contracts to which Buyer or BLS is a party.
(c) Legal Proceedings. There is no Action pending or, to the
knowledge of Buyer, threatened in writing, against or affecting Buyer or
BLS that individually or when aggregated with one or more other Actions
has or might be reasonably be expected to have a material adverse effect
on any aspect of the transactions contemplated by this Agreement, and
there is no Order to which Buyer or BLS is subject that has or might
reasonably be expected to have a material adverse effect on any aspect of
the transactions contemplated by this Agreement.
5.3 Survival of Representations and Warranties. The representations and
warranties contained in or made pursuant to this Agreement shall survive Closing
and expire on December 31, 2002.
ARTICLE 6
CONDUCT OF PROJECT
During the period from the date of this Agreement and continuing until the
Closing Date, Seller agrees as follows:
6.1 Regular Course of Business. Except as otherwise provided herein,
Seller agrees to carry on its business in its usual, regular and ordinary course
in substantially the same manner as heretofore conducted, and, to the extent
consistent with such business, use all reasonable efforts to preserve intact its
present business organization, keep available the services of the Principal
Employees, and preserve its relationships with others having business dealings
with Seller.
6.2 Insurance. Seller will maintain in effect all insurance currently
maintained or renew such insurance with reasonably comparable policies then
available.
6.3 No Defaults. Seller will not commit, omit or permit any act or
omission to act, that will cause a breach of any material contract or
commitment.
6.4 Compliance With Laws. Seller will comply with the requirements of all
applicable Laws, rules, regulations and orders of any Governmental Entity
noncompliance with which would have a material adverse effect on the business,
properties, assets, operations or condition (financial or otherwise) of Seller.
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6.5 Catarex Handpieces.
(a) Seller agrees to exercise its best efforts to produce and
deliver to Buyer 2400 Catarex Handpieces conforming to the applicable
specifications as soon as commercially practicable. Seller agrees that,
notwithstanding anything contained in the Development Agreement to the
contrary, Buyer shall have no remaining obligation under the Development
Agreement other than (i) an obligation to pay Seller an amount equal to
the sum of 125% of (x) costs (as defined at Section 4.6.2 of the
Development Agreement) incurred by Seller since December 31, 2000 in
connection with the production of 2400 Catarex Handpieces and (y)
$36,153.43; provided, however, that in no event shall Buyer be responsible
for paying Seller an aggregate amount of such costs in excess of
$772,442.57, and (ii) subject to Seller's obligation to exercise diligent
efforts to cancel any open purchase orders pertaining to Phase II, those
costs (as defined at Section 4.6.2 of the Development Agreement) incurred
by Seller in connection therewith, but in no event shall Buyer be
responsible for paying Seller any amounts in excess of $381,375.22.
(b) Seller shall provide Buyer with a written report and invoice of
all costs (as defined at Section 4.6.2 of the Development Agreement)
incurred by Seller during the month of January, 2001 in connection with
the production of 2400 Catarex Handpieces along with any supporting
documentation Buyer reasonably requests. Subject to Section 4.6.3 of the
Development Agreement, Buyer agrees to pay to Seller within three (3)
business days of receipt from Seller of that written report and invoice an
amount equal to 125% of (x) such costs and (y) $36,153.43 (collectively,
the "January Invoice Amount"); provided, however, that Buyer shall not be
responsible for paying Seller any portion of the January Invoice Amount
which exceeds $610,879.39 (the "January Invoice Ceiling"), except as
provided for in Section 6.5(c).
(c) Subject to the limitation described in Section 6.5(a), following
Buyer's receipt of 2400 Catarex Handpieces which conform to the
specifications then in effect, Seller shall submit (i) monthly invoices to
Buyer for 125% of costs (as defined in Section 4.6.2 of the Development
Agreement) incurred after January 31, 2001 in connection with the
production of 2400 Catarex Handpieces and (ii) an invoice for an amount
equal to the January Invoice Amount minus the January Invoice Ceiling. All
such invoices shall be payable within three (3) business days of receipt
by Buyer, subject to all of the terms and conditions of Section 4.6.3 of
the Development Agreement;
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ARTICLE 7
ADDITIONAL AGREEMENTS
7.1 Access to Information. Seller will on reasonable advance notice afford
to Buyer and to Buyer's accountants, counsel and other representatives,
(provided that each such person shall sign a visitor's confidentiality agreement
in form and substance reasonably acceptable to Seller) reasonable access during
normal business hours during the period prior to the Closing Date to all
properties, books, documents and records relating to Seller and the Project, and
Seller will use their reasonable efforts to furnish promptly to Buyer all
information concerning the business, properties and personnel of Seller as Buyer
may reasonably request.
7.2 Additional Agreements; Further Actions. Subject to the terms and
conditions of this Agreement, each of the parties hereto agrees to use all
reasonable efforts to take, or cause to be taken, all action and to do, or cause
to be done, all things necessary, proper or advisable to consummate and make
effective the transactions contemplated by this Agreement, including using all
reasonable efforts to obtain all necessary waivers, consents and approvals, to
give all notices and to effect all necessary registrations and filings. If at
any time after the Closing Date any further action is necessary or desirable to
carry out the purposes of this Agreement, Seller and Buyer will use their
reasonable efforts to take such action.
7.3 Notice of Developments. Seller will give prompt written notice to
Buyer, and Buyer will give prompt written notice to Seller, of any adverse
development causing a breach of any representations and warranties of Seller and
Buyer, respectively, hereunder.
7.4 Minimum Royalties. Buyer agrees that, notwithstanding anything
contained in Section 3.3.2 to the contrary, during the three (3) year period
commencing on the earlier to occur of January 1, 2004 or First Commercial Use,
Buyer shall pay to Seller Royalties in the following amounts, subject to the
credit described in Section 3.1 hereof (the "Minimum Royalties"); it being
understood and agreed that any Royalties that accrue upon Net Sales and are paid
under Section 3.3.2 during the following periods shall be credited to Buyer's
obligation to pay Minimum Royalties for such periods:
First 12 months $90,000.00
Second 12 months $350,000.00
Third 12 months $750,000.00
Notwithstanding the foregoing, in the event that Buyer fails in whole or in part
to satisfy its obligation to pay Seller the Minimum Royalties within the
forty-five (45) day period following each twelve (12) month period, and without
regard as to whether such Minimum Royalties accrued based upon Net Sales under
Section 3.3.2, Seller shall be entitled to receive, and Buyer shall grant to
Seller, a fully paid, nonexclusive, sub-licensable license of the Optex Patents
and Know-How. Seller agrees that Buyer's grant of such license shall fully
discharge and satisfy its obligations to pay Seller the Minimum Royalties, and
Seller agrees to accept such license as Seller's sole and exclusive remedy
against Buyer for its failure to satisfy the Minimum Royalties.
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7.5 Restrictive Covenant.
7.5.1 Restrictions on Activities. As an inducement to Buyer to enter
into this Agreement, Seller and Atlantic agree that for a period of two (2)
years after the Closing Date, Seller and Atlantic will not, directly or
indirectly, for their own benefit or as agent for another, carry on or
participate in any activities within the Field or otherwise render services to
any other business enterprise within the Field.
7.5.2 Special Remedies and Enforcement. Seller and Atlantic
recognize and agree that a breach by Seller and Atlantic of the covenant set
forth in Section 7.5.1 could cause irreparable harm to Buyer, that Buyer's
remedies at law in the event of such breach would be inadequate, and that,
accordingly, in the event of such breach a restraining order or injunction or
both may be issued against Seller and Atlantic, in addition to any other rights
and remedies which are available to Buyer. If the remedies provided for in this
Section 7.5.2 are not permitted by the Laws of any jurisdiction in which Buyer
seeks enforcement hereof, this Section 7.5.2 shall be limited to the extent
required to permit enforcement under such Laws.
7.6 Nondisclosure of Proprietary Data. Neither Buyer or BLS (prior to
Closing), Seller, Atlantic nor any of their respective representatives shall, at
any time, make use of, divulge or otherwise disclose, directly or indirectly,
any confidential Intangible Property.
7.7 Abandonment of the Project. If at any time prior to or following First
Commercial Use, Buyer provides written notice to Seller of its election to
abandon the Project ("Abandonment"), Seller shall have the option to re-acquire
the Assets (the "Re-Acquired Assets") from Buyer upon entering into a bona fide
agreement with an unaffiliated third party ("Third Party") under which a Third
Party agrees to commercialize a Catarex Product. In the event that Seller wishes
to exercise said option, Seller shall deliver to Buyer a written notice of
election and the parties shall agree on a time and place for a closing of the
transaction. In connection with such closing, Seller shall agree in writing to
pay Buyer a purchase price for the Re-Acquired Assets equal to the aggregate
payments received by Seller from Buyer under Sections 3.1, 3.3.1 and 7.4 hereof
(minus, in the case of Section 7.4, Royalties accrued and paid upon Net Sales
under Section 3.3.2); provided that Seller shall be entitled to pay Buyer at the
rate of fifty percent (50%) of any and all amounts received from such Third
Party as and when such amounts are received by Seller. Notwithstanding the
foregoing, an Abandonment shall be deemed to have occurred if (i) Buyer fails to
satisfy any of the following milestones or (ii) ceases selling Catarex Products
after First Commercial Use:
(a) Completion by March 31, 2002 of a clinical study designed by
Buyer to assess the functionality of the Catarex Handpiece in human
cataract surgery.
(b) Production by January 31, 2003 of a prototype Catarex Handpiece
(the "Redesigned Catarex Handpiece") that satisfies Buyer's manufacturing
cost specifications.
(c) Completion of a Clinical Demonstration using the Redesigned
Catarex Handpiece by June 30, 2003.
13
(d) Submission of 510(k) for the Redesigned Catarex Handpiece
by September 30, 2003.
In the event that Seller fails to satisfy the condition contained in Section
8.3.5 hereof by February 28, 2001 (the "Delivery Date"), the foregoing milestone
completion dates shall be extended by one (1) day for each day that passes after
the Delivery Date until the condition contained in Section 8.3.5 hereof is
satisfied.
7.8 Patent Prosecution and Maintenance. From and after Closing until the
earlier of (i) consummation of any purchase of the Re-Acquired Assets pursuant
to Section 7.7 or (ii) six (6) months following an Abandonment, Buyer shall, at
its expense, prosecute and maintain the Optex Patents in Key Markets. Schedule
7.8 attached hereto constitutes a restated and amended version of Exhibit B to
the Development Agreement.
7.9 Standstill. Atlantic and Seller agree not to offer for sale or
participate in negotiations, discussions or due diligence with respect to the
sale of Seller or the Assets for a period of ninety (90) days following December
28, 2000.
7.10 Right of First Negotiation. Seller hereby grants to Buyer a first
right to negotiate ("First Right of Negotiation") an agreement to manufacture,
license, distribute and/or sell (collectively, to "Commercialize") any product
or service developed by Seller related to cataract surgery outside of the Field
(a "New Product"). If at anytime following Closing, Seller intends to
Commercialize any New Product, Seller shall first give written notice
("Negotiation Notice") to Buyer of its intention. Buyer will have a period of
ninety (90) days following the receipt of the Negotiation Notice to conduct a
due diligence investigation relating to any such New Product and to notify
Seller in writing of Buyer's election to exercise its First Right of Negotiation
("Notice of Election"). Upon timely delivery of the Notice of Election by Buyer,
the parties shall, for a period of not less than ninety (90) days (the
"Negotiation Period") negotiate in good faith the terms and conditions of a
definitive agreement, which agreement shall contain terms and conditions
generally contained in agreements of such type. If the parties are unable to
reach an agreement and execute such definitive agreement during the Negotiation
Period, Seller may negotiate and execute an agreement with any third party to
Commercialize such New Product; provided, however, that for a period of twelve
(12) months following the expiration of the Negotiation Period, Seller shall not
(except with the prior written consent of Buyer) enter into an agreement to
Commercialize such New Product on more favorable terms and conditions than those
last offered in writing to Seller by Buyer during the Negotiation Period. In the
event that Seller fails to enter into an agreement with a third party to
Commercialize such New Product within a period of twelve (12) months following
the expiration of the Negotiation Period, Seller shall be required to offer
Buyer another First Right of Negotiation with respect thereto, and the foregoing
process shall be repeated.
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ARTICLE 8
CONDITIONS PRECEDENT
8.1 Conditions to Each Party's Obligation. The obligations of Seller and
Buyer to consummate the closing of the transactions contemplated hereby are
subject to the satisfaction, at or before the Closing Date, of each of the
following conditions:
8.1.1 No Injunctions; Orders. No Order shall have been issued by any
Governmental Entity nor shall any Law be promulgated or enacted by any
Governmental Entity that prevents the consummation of the transactions
contemplated hereby.
8.1.2 No Litigation. No action or proceeding before any Governmental
Entity shall be pending against Seller or Buyer seeking to prevent or delay the
transactions contemplated hereby or challenging any of the terms or provisions
of this Agreement or seeking material damages in connection therewith.
8.2 Conditions to Seller's Obligations. The obligations of Seller to
consummate the closing of the transactions contemplated hereby are subject to
the satisfaction on or prior to the day of Closing, of the following conditions,
in addition to the other required deliveries:
8.2.1 Representations and Warranties True. The representations and
warranties of Buyer shall be in all material respects true and correct as of the
Closing Date as though such representations and warranties were made at and as
of such date, except for changes expressly permitted or contemplated by this
Agreement.
8.2.2 Performance. Buyer shall have performed and complied in all
material respects with all agreements, obligations and conditions required by
this Agreement to be performed or complied with by it on or prior to the Closing
Date.
8.2.3 Rudick Consulting Agreement. Buyer shall have executed and
delivered a consulting and non-competition agreement with A. Joseph Rudick,
Jr., M.D., ("Rudick") which shall provide for a term that expires upon the
earlier to occur of (i) abandonment of the Project by Buyer, (ii) three (3)
years or (iii) First Commercial Use, at the rate of $5,000.00 per month.
8.3 Conditions to Buyer's Obligations. The obligations of Buyer to
consummate the closing of the transactions contemplated hereby are subject to
the satisfaction on or prior to the date of Closing, of the following
conditions, in addition to the other required deliveries:
8.3.1 Representations and Warranties True. The representations and
warranties of Seller shall be in all material respects true and correct as of
the Closing Date as though such representations and warranties were made at and
as of such date, except for changes expressly permitted or contemplated by this
Agreement.
8.3.2 Performance. Seller shall have performed and complied in all
material respects with all agreements, obligations and conditions required by
this Agreement to be performed or complied with by Seller on or prior to the
Closing Date.
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8.3.3 Professional Services Agreement. Neomedix, Inc.
("Neomedix") shall have executed and delivered to Buyer a Professional
Services Agreement in form and substance reasonably satisfactory to Buyer
under which Neomedix shall (i) make available to Buyer the services of the
Principal Employees, (ii) grant to Buyer a First Right of Negotiation with
respect to New Products developed by Neomedix and (iii) agree to a covenant
of a non-competition in the Field for a period of two (2) years after the
Closing Date.
8.3.4 Assignment of Know-How and Inventions. Each of the Principal
Employees shall have assigned to Buyer any Optex Inventions or Know-How in their
possession or subject to their control pursuant to an Assignment of Know-How and
Inventions Agreement in form and substance reasonably satisfactory to Buyer and
its counsel.
8.3.5 Delivery of Catarex Handpieces. Seller shall have
delivered to Buyer 2400 Catarex Handpieces which conform to the
specifications then in effect.
8.3.6 Board Approval. The transactions contemplated hereby shall
have received approval of the Buyer's Board of Directors.
8.3.7 Consents. Any consents necessary to effect the transfer by
Seller to Buyer of any of the Assets shall have been obtained in writing.
8.3.8 Due Diligence. Buyer shall not, in the course of its on-going
due diligence investigation, have discovered information not previously
disclosed by Seller or Atlantic that Buyer reasonably believes has or is likely
to have a material adverse effect on the Assets and/or the viability of the
Project.
ARTICLE 9
TERMINATION
9.1 Grounds for Termination. This Agreement may be terminated at any time
prior to the Closing Date in accordance with the following provisions:
9.1.1 Mutual Consent. This Agreement may be terminated by the
written agreement of Buyer and Seller.
9.1.2 Breach of Warranties or Covenants; Misrepresentation. This
Agreement may be terminated as follows:
(a) by Buyer if any representation of Seller and Atlantic set forth
in this Agreement was materially inaccurate when made or becomes
inaccurate such that the condition set forth in Section 8.3.1 would not be
satisfied;
(b) by Seller if any representation of Buyer set forth in this
Agreement was materially inaccurate when made or becomes inaccurate such
that the condition set forth in Section 8.2.1 would not be satisfied;
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(c) by Buyer if Seller, after written notice and reasonable
opportunity to cure, fails to perform or comply with any of the
obligations that it is required to perform or to comply with under this
Agreement such that the condition set forth in Section 8.3.2 would not be
satisfied; and
(d) by Seller if Buyer, after written notice and reasonable
opportunity to cure, fails to perform or comply with any of the
obligations that it is required to perform or to comply with under this
Agreement such that the condition set forth in Section 8.2.2 would not be
satisfied.
9.1.3 Expiration Date. This Agreement may be terminated by Buyer or
Seller if the Closing shall not have been consummated on or before March 30,
2001, except that the right to terminate this Agreement pursuant to this Section
9.1.3 will not be available to any party whose failure to fulfill any obligation
under this Agreement has been the cause of, or resulted in, the failure of the
Closing to occur on or prior to that date.
9.2 Waiver. Either party hereto may, to the extent legally allowed:
(i) extend the time for the performance of any of the obligations
or other acts of the other parties;
(ii) waive any inaccuracies in the representations and warranties
made by the other party; or
(iii) waive compliance with any of the agreements or conditions for
the benefit of such party. No such agreement shall be effective unless it is in
writing and it is signed by the parties to be bound.
9.3 Effective Termination. Upon the termination of this Agreement pursuant
to Section 9.1, all further obligations of the parties under this Agreement
shall terminate without further liability of any party to the other.
ARTICLE 10
INDEMNIFICATION
10.1 Obligations of Seller and Atlantic. Seller and Atlantic agree to
indemnify and hold harmless Buyer and its directors, officers, employees,
Affiliates, agents, representatives and assigns, from and against any and all
Losses of Buyer, directly or indirectly, as a result of, in connection with, or
based upon or arising from any of the following: (a) any inaccuracy in any of
the representations made by Atlantic and Seller in this Agreement or breach or
non-performance of any of the obligations of Seller and Atlantic pursuant to
this Agreement; and (b) any liabilities not expressly assumed by Buyer pursuant
to Section 2.3. Seller agrees to reimburse the Indemnified Party promptly upon
demand for any unreimbursed payment made or Loss suffered by such Indemnified
Party at any time after the Closing Date in respect of any Loss to which the
foregoing indemnity relates. Notwithstanding anything contained in this Section
10.1 to the contrary, Seller and Atlantic shall not be liable for any indemnity
amounts in respect of Losses under this Section 10.1 (excluding Losses resulting
from a breach of any monetary obligation, or any intentional breach of any
non-monetary obligation, to Buyer which, in the case of non-monetary
obligations, remains uncured after reasonable notice) unless the amount of such
Losses exceeds $100,000 in the aggregate, in which event Seller and Atlantic
shall indemnify and hold harmless Buyer and its directors, officers, employees,
Affiliates, agents, representatives and assigns from and against all Losses that
exceed $100,000. The obligations of Seller and Atlantic to indemnify Buyer for
Losses incurred pursuant to this Section 10.1 (excluding Losses resulting from a
breach of any
17
monetary obligation, or any intentional breach of any non-monetary obligation,
to Buyer which, in the case of non-monetary obligations, remains uncured after
reasonable notice) shall be limited to an aggregate maximum amount equal to the
Purchase Price, including the additional consideration described in Section 3.3.
10.2 Obligations of Buyer. Buyer agrees to indemnify and hold harmless
Seller and its directors, officers, employees, Affiliates, agents,
representatives and assigns from and against any and all Losses of Seller,
directly or indirectly, as a result of, in connection with, or based upon or
arising from any of the following: (a) any inaccuracy in any of the
representations made by Buyer in this Agreement or breach or non-performance of
any of the obligations made by Buyer in or pursuant to this Agreement; and (b)
any product liability actions relating to the Project which may arise following
Closing except to the extent attributable to the acts or omissions of Seller or
Atlantic. Buyer agrees to reimburse the Indemnified Party promptly upon demand
for any unreimbursed payment made or Loss suffered by the Indemnified Party at
any time after the Closing Date in respect of any Loss to which the foregoing
indemnity relates
10.3 Procedure.
(a) Notice of Loss. The Indemnified Party under Sections 10.1 and
10.2 above with respect to any Loss shall give prompt notice thereof to
the Indemnifying Party.
(b) Defense. In the event any Person not a party to this Agreement
shall make a demand or claim or file or threaten to file or continue any
lawsuit, which demand, claim or lawsuit may result in liability to an
Indemnified Party in respect of matters embraced by the indemnity under
this Agreement, or in the event that a potential Loss, damage or expense
comes to the attention of Buyer or Seller in respect of matters covered by
the indemnity under this Agreement, then the party receiving notice or
becoming aware of such event shall promptly notify the other party of the
demand, claim or lawsuit. Within ten days after notice by the Indemnified
Party (the "Notice") to the Indemnifying Party of such demand, claim or
lawsuit, except as provided in the next sentence, the Indemnifying Party
shall have the option, at its sole cost and expense, to retain counsel for
the Indemnified Party to defend any such demand, claim or lawsuit,
provided that counsel who will conduct the defense of such demand, claim
or lawsuit must be approved by the Indemnified Party, whose approval will
not be unreasonably withheld. The Indemnified Party shall have the right,
at its own expense, to participate in the defense of any suit, action or
proceeding brought against it with respect to which indemnification may be
sought hereunder; provided, however, if (i) the named parties to any such
proceeding (including any impleaded parties) include both the Indemnifying
Party and the Indemnified Party and representation of both parties by the
same counsel would be
18
inappropriate due to actual or potential differing interests between them,
(ii) the employment of counsel by such Indemnified Party has been
authorized in writing by the Indemnifying Party, or (iii) the Indemnifying
Party has not in fact employed counsel to assume the defense of such
action within a reasonable time; then, the Indemnified Party shall have
the right to retain its own counsel at the sole cost and expense of the
Indemnifying Party, which costs and expenses shall be paid by the
Indemnifying Party on a current basis. No Indemnified Party, in the
defense of any such demand, claim or lawsuit, will consent to entry of any
judgment or enter into any settlement without the consent of the
Indemnifying Party. If any Indemnified Party is advised by its chosen
counsel that there may be one or more legal defenses available to such
Indemnified Party which are different from or in addition to those which
have been asserted by the Indemnifying Party, at the election of the
Indemnified Party, the Indemnifying Party will have the right to continue
the defense of such demand, claim or lawsuit on behalf of such Indemnified
Party and will reimburse such Indemnified Party and any Person controlling
such Indemnified Party on a current basis for the reasonable fees and
expenses of any counsel retained by the Indemnified Party under this
subparagraph (b) to undertake the defense. In the event that the
Indemnifying Party shall fail to respond within ten days after receipt of
the Notice, the Indemnified Party may retain counsel and conduct the
defense of such demand, claim or lawsuit, as it may in its sole discretion
deem proper, at the sole cost and expense of the Indemnifying Party, which
costs and expenses shall be paid by the Indemnifying Party on a current
basis. Failure to provide Notice shall not limit the rights of such party
to indemnification, except to the extent the Indemnifying Party's defense
of the action is actually prejudiced by such failure.
10.4 Notice by the Parties. Buyer and Seller agree to notify the other of
any liabilities, claims or misrepresentations, breaches or other matters covered
by this Section 10 upon discovery or receipt of notice thereof (other than from
the other party).
10.5 Survival. This Section 10 shall survive Closing and shall remain in
effect until any matter as to which a claim has been asserted by notice to the
other party shall is finally terminated or otherwise resolved by the parties or
by a court of competent jurisdiction and any amounts payable hereunder are
finally determined and paid.
10.6 Time Limitations. If the Closing occurs, Seller and Atlantic will
have no liability with respect to any representation made by them in, or any
obligation to be performed or complied with by them prior to the Closing Date
pursuant to, this Agreement except to the extent that on or before December 31,
2002, Buyer notifies Seller and Atlantic of a claim with respect thereto,
specifying the factual basis of that claim in reasonable detail.
10.7 Exclusive Remedy. Each party agrees that its sole and exclusive
remedy with respect to any and all claims for monetary damages arising under
this Agreement is pursuant to the indemnification provisions set forth in this
Article 10.
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ARTICLE 11
TERMINATION OF DEVELOPMENT AGREEMENT
Effective as of the Closing, the Development Agreement shall be
terminated, cancelled and released in all respects, and all of the respective
rights, duties, obligations and liabilities of the parties thereunder shall be
terminated, cancelled and released in all respects and shall be of no further
force of effect. From and after the Closing Date, no party to the Development
Agreement shall have any duty, liability or responsibility whatsoever for the
payment of any amount or the performance of any obligations thereunder.
ARTICLE 12
GENERAL PROVISIONS
12.1 Amendment and Waiver. Any provision of this Agreement may be amended
or waived if, and only if, such amendment or waiver is in writing and signed, in
the case of an amendment, by Buyer, Atlantic and Seller, or in the case of a
waiver, by the party or parties against whom the waiver is to be effective. No
failure or delay by any party in exercising any right, power or privilege
hereunder shall operate as a waiver thereof nor shall any single or partial
exercise thereof preclude any other or further exercise thereof or the exercise
any other right, power or privilege.
12.2 Headings. The headings in this Agreement are for convenience of
reference only and shall be ignored in the construction or interpretation
hereof.
12.3 Counterparts. This Agreement may be signed in any number of
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument. This Agreement
shall become effective when each party hereto shall have received a counterpart
hereof signed by the other parties hereto.
12.4 Parties in Interest. This Agreement will be binding upon and inure to
the benefit of each party, and nothing in this Agreement, express or implied, is
intended to confer upon any other Person any rights or remedies of any nature
whatsoever under or by reason of this Agreement. Nothing in this Agreement is
intended to relieve or discharge the obligation of any third person to any party
to this Agreement.
12.5 Notices. Any notice or other communication hereunder must be given in
writing and either (a) delivered in person, (b) transmitted by telefacsimile,
provided that any notice so given is also mailed as provided in clause (c), or
(c) mailed, postage prepaid, as follows:
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If to Buyer Bausch & Lomb Surgical, Inc.
or BLS: 3365 Industrial Tree Court Blvd.
St. Louis, MO 63122
Attn: Ash Mahmood,
Vice President, Design and Development
Fax: 636-226-3150
With a copy to: Bausch & Lomb Incorporated
One Bausch & Lomb Place
Rochester, NY 14604
Attn: Senior Vice President and
General Counsel
Fax: 716-338-8706
If to Atlantic Atlantic Technology Ventures, Inc.
or Seller: 150 Broadway
Suite 1009
New York, New York 10038
Attn: Frederic P. Zotos, Esq.
President
With a copy to: Kramer Levin Naftalis & Frankel, LLP
919 3rd Ave
New York, NY 10022
Attn: Ezra G. Levin, Esq.
Fax: 212-715-8000
or to such other address or to such other person as any party shall have last
designated by notice to the other parties. Each such notice or other
communication shall be effective (i) if given by mail, three days after such
communication is deposited in the mails with first class postage prepaid,
addressed as aforesaid, (ii) if given by telefacsimile, when transmitted to the
applicable number so specified pursuant to this Section 12.5 provided that
appropriate confirmation of receipt is generated by the telefacsimile and a
duplicate copy is mailed, postage prepaid, or (iii) if given by any other means,
when actually delivered at such address.
12.6 Expenses. Each party shall each pay its own expenses incident to the
negotiation, preparation and performance of this Agreement and the transactions
contemplated hereby.
12.7 Assignments. This Agreement and all of the provisions hereof shall be
binding upon and inure to the benefit of the parties hereto and their respective
successors and permitted
21
assigns. Neither this Agreement nor any of the rights, interests or obligations
hereunder shall be assigned by any party without the prior written consent of
the other parties, except that (i) Buyer may assign its rights and obligations
to any entity that controls, is controlled by or is under common control with
Buyer on condition that it remains liable for any failure of that entity to
perform any of its obligations under this Agreement, and (ii) any party may
assign its rights and obligations under this Agreement to any entity (other than
a competitor of Buyer within the Field) which acquires substantially all of the
assets of that party or survives any merger with that party. Nothing contained
herein, express or implied, is intended to confer on any Person other than the
parties hereto or their respective successors and permitted assigns, any rights,
remedies, obligations or liabilities under or by reason of this Agreement.
12.8 Remedies. All rights and remedies existing under this Agreement are
cumulative to, and not exclusive of, any rights or remedies otherwise available
under applicable Laws.
12.9 Representation By Counsel; Interpretation. The parties each
acknowledge that each party to this Agreement has been represented by counsel in
connection with this Agreement and the transactions contemplated by this
Agreement. Accordingly, any rule of Law or any legal decision that would require
interpretation of any claimed ambiguities in this Agreement against the party or
parties that drafted it has no application and is expressly waived. The
provisions of this Agreement shall be interpreted in a reasonable manner to
effect the intent of the parties.
12.10 Severability. If any provision contained in this Agreement shall for
any reason be held invalid, illegal or unenforceable in any respect, such
invalidity, illegality or unenforceability shall not affect any other provisions
of this Agreement, but this Agreement shall be construed as if such invalid,
illegal or unenforceable provision had never been contained herein. It is the
intention of the parties that if any of the restrictions or covenants contained
herein in any way is construed to be too broad or to any extent invalid, if
legally possible such provision shall not be construed to be null, void and of
no effect but, to the extent such provision would be valid or enforceable under
applicable Laws, a court of competent jurisdiction shall construe and interpret
or reform such provision to the extent necessary to make it valid and
enforceable under such applicable Laws.
12.11 Publicity and Reports. The parties will coordinate all publicity
relating to the transactions contemplated by this Agreement, and the parties
will not issue any press release, publicity statement or other public notice
relating to this Agreement, or the transactions contemplated by this Agreement,
without consulting with the other parties except to the extent that independent
legal counsel to any party delivers a written opinion to the other parties to
the effect that a particular action may be required by applicable Law, in which
event the party taking the particular action will give reasonable notice to the
other parties and will consult with such other parties regarding such action.
12.12 Governing Law. This Agreement shall be governed in all respects,
including validity, interpretation, effect, construction and performance by
the laws of New York.
12.13 Entire Agreement. This Agreement contains the entire agreement
between the parties hereto with respect to the transactions contemplated
herein.
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IN WITNESS WHEREOF, the parties hereto have caused this Asset Purchase
Agreement to be executed as of the date first above written.
BAUSCH & LOMB INCORPORATED
By: /s/ Stephen C. Mcluski
-----------------------------------------
Name: Stephen C. Mcluski
Title: Senior Vice President and
Chief Financial Officer
BAUSCH & LOMB SURGICAL, INC.
By: /s/ Stephen C. Mcluski
-----------------------------------------
Name: Stephen C. Mcluski
Title: Senior Vice President and
Chief Financial Officer
OPTEX OPHTHALMOLOGICS, INC.
By: /s/ A. Joseph Rudick
-----------------------------------------
Name: A. Joseph Rudick
Title: President
ATLANTIC TECHNOLOGY VENTURES, INC.
By: /s/ Frederic P. Zotos
-----------------------------------------
Name: Frederic P. Zotos
Title: President and Chief
Executive Officer
23
Exhibit A
Attach Development Agreement
Exhibit B
Clinical Demonstration
A clinical trial in patients with cataracts of hardness Grade 1-3 (as defined
below) and a separate clinical trial in patients with cataracts of hardness
Grade 4+ (as defined below) (together the "Clinical Trials"). The Clinical
Trials shall be designed by Buyer and funded by Buyer in order to evaluate the
Redesigned Catarex Handpiece relative to ultrasonic phacoemulsification.
The Clinical Trial in cataracts of hardness Grade 1-3 shall be designed to
evaluate the following expectations:
o The trial does not raise significant safety considerations or
unexpected adverse events.
o The total time the Catarex(TM) probe is activated inside the lens
capsule to remove the cataractous lens and cortex material during a
procedure is typically 2.5 minutes and, except in unusual
circumstances shall not be greater than four (4) minutes.
o The procedure is a single-step (i.e., single probe insertion)
procedure unlike phaco, which requires the removal of the phaco probe
once the cataract has been fragmented followed by the insertion of a
separate irrigation/aspiration probe to remove the lens contents.
o The procedure is a true endocapsular procedure in which the
Catarex(TM) probe is inserted into the lens capsule and held
relatively stationary.
o Enlargement (i.e., larger than the probe diameter) of the initial
capsulorhexis is not required for a successful cataract removal.
o Sculpting, such as is typically performed in phaco, is not required.
o When required, the initial capsulorhexis can be successfully enlarged
in order to insert an intraocular lens without requiring extraordinary
measures.
The Clinical Trial in cataracts of hardness Grade 4 or higher shall be designed
to evaluate the foregoing expectations, except that in a surgical procedure, the
cataract and associated cortex material is successfully removed without the
necessity for additional equipment in a time substantially equivalent to phaco.
Schedule 2.1(a)
Assumed Contracts
Schedule 2.1(b)
Equipment
Schedule 2.1(d)
Other Current Assets
Schedule 2.1(e)
Patents and Trademarks
Schedule 5.1(d)
Other Liabilities
Schedule 5.1(g)
Permits
Schedule 5.1(h)
Exceptions to Enforceability
of
Assumed Contracts
Schedule 5.1(j)
Inventory
Schedule 7.8
Optex Patents