EXHIBIT 99.3
OPHTHALMIC IMAGING SYSTEMS
HAND DELIVERED February 12, 1998
Colette Cozean, Ph.D.
President, CEO and
Chairman of the Board CONFIDENTIAL
Premier Laser Systems, Inc.
Morgan Avenue
Irvine, CA 92718
Dear Ms. Cozean:
In connection with the interest of Premier Laser Systems, Inc. ("PSI")
in a possible merger, purchase, consolidation, or other acquisition (an
"Acquisition Transaction") of Ophthalmic Imaging Systems, a California
corporation (the "Company") with PSI, the Company proposes to make available to
you certain confidential, nonpublic, or proprietary information concerning the
business, operations, and assets of the Company so that you may determine
whether you have an interest in pursuing the Acquisition Transaction. As a
condition to our furnishing such information to you, we are requiring that you
agree, as set forth below, to treat confidentially such information and any
other information that the Company or their respective agents or representatives
(including attorneys) furnishes to PSI or any of its "Affiliates" (as defined in
Rule 12b-2 promulgated under the Securities Exchange Act of 1934, as amended
(the "Exchange Act")) or to PSI and its Affiliates' directors, officers,
employees, agents, advisors, prospective bank or institutional lenders, or
representatives of your agents, advisors, or prospective lenders (all of the
foregoing collectively referred to as "PSI Representatives"), whether furnished
before or after the date of this letter agreement (this "Agreement"), together
with all notes, analyses, compilations, studies, or other documents or records,
whether prepared by PSI, PSI Representatives, or others, which contain or
otherwise reflect or are generated from such information (collectively, the
"Evaluation Material"), and to take or abstain from taking certain other actions
set forth herein. PSI will be responsible for any breach of this Agreement by
PSI or any PSI Representative.
The term "Evaluation Material" does not include information which (i)
becomes generally available to the public other than as a result of a disclosure
by PSI or a PSI Representative, (ii) was available to you on a non-confidential
basis prior to its disclosure to PSI by the Company or its representatives or
agents, or (iii) becomes available to you on a non-confidential basis from a
source other than the Company or its representatives or agents (including,
without limitation, information developed by PSI without use of the Evaluation
Material), provided that such source is not known by PSI (after such inquiry as
would be reasonable under the circumstances) to be bound by a confidentiality
agreement with the Company or its representatives or agents, or otherwise
prohibited from transmitting the information to PSI or any PSI Representative by
a contractual, legal, or fiduciary obligation.
PSI agrees that the Evaluation Material will be kept confidential by
PSI and each PSI Representative and, except with the specific prior written
consent of the Company or as expressly otherwise permitted by the terms hereof,
will not be disclosed by PSI or any PSI Representative. It is understood that
PSI may disclose the Evaluation Material only to those of the PSI
Representatives who,
221 Lathrop Way, Suite 1/bullet/Sacramento, California/bullet/95815/bullet/
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in PSI's reasonable judgment, need to know such information for the purpose of
evaluating a possible Acquisition Transaction (provided that such
Representatives shall be informed by PSI of the confidential nature of the
Evaluation Material and shall agree to be bound by the terms of this Agreement)
and, in any event, such disclosures will be made only to the extent necessary
for such purposes. PSI further agrees that the Evaluation Materials will be used
solely for the purpose of evaluating a possible Acquisition Transaction and for
no other reason or purpose, and that neither PSI nor any PSI Representative will
use any of the Evaluation Material in any way detrimental to the Company or its
shareholders.
Without the prior written consent of the Company, PSI and the PSI
Representatives will not disclose to any person (1) the fact that the Evaluation
Material has been made available to PSI or the PSI Representatives, or that PSI
or the PSI Representatives have inspected any portion of the Evaluation
Material, (2) the fact that any discussions or negotiations are taking place
concerning a possible Acquisition Transaction, or (3) any of the terms,
conditions, or other facts with respect to any possible Acquisition Transaction,
including the status thereof; unless and only to the extent that such disclosure
(after making reasonable efforts to avoid such disclosure and after advising and
consulting with the Company about your intention to make, and the proposed
contents of, such disclosure) is, in the opinion of PSI's counsel, required by
applicable law. The term "person" as used in this Agreement shall be broadly
interpreted to include without limitation any individual, corporation, company,
partnership, group, joint venture, syndicate, trust, estate, unincorporated
organization, or similar association or organization.
In the event that PSI or any of the PSI Representatives are requested
or required by judicial or other similar legal process (by oral questions,
interrogatories, requests for information or documents, subpoena, civil
investigative demand, or similar process) to disclose any of the Evaluation
Material, or are required to disclose that discussions or negotiations are
taking place concerning the Acquisition Transaction, or any of its terms,
conditions, or other facts with respect thereto, and PSI or the PSI
Representatives are advised by counsel that PSI or they must disclose such
information or else stand liable for contempt or other penalty or censure, it is
agreed that PSI or such PSI Representative, as the case may be, will provide the
Company with prompt oral and written notice of such request(s) or requirement(s)
so that the Company may seek an appropriate protective order or other
appropriate remedy and/or waive PSI's or such PSI Representative's compliance
with the provisions of this Agreement. In the event that such protective order
or other remedy is not obtained, or that the Company grants a waiver hereunder,
PSI or such PSI Representative may furnish that portion (and only that portion)
of the Evaluation Material which, in the written opinion of PSI's counsel, that
PSI is legally required to disclose (provided, however, that if PSI proposes to
make any disclosure based on the advice of counsel as aforesaid, PSI will give
the Company written notice of the specific information to be disclosed as far in
advance of its disclosure is practicable) and will exercise your best efforts to
obtain reliable assurance that confidential treatment will be accorded any
Evaluation Material so furnished.
In addition, PSI hereby acknowledges that PSI is aware (and that your
Representatives who are apprised of this matter have been or will be advised)
that the United States and the State of California securities laws generally
prohibit persons with material non-public information about a company obtained
directly or indirectly from that company from purchasing or selling securities
of such company, or from communicating such information to any other person
under circumstances in which it is reasonably foreseeable that such person is
likely to purchase or sell such securities.
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In view of the fact that the Evaluation Material consists of
confidential and non-public information, PSI will enter into that certain
Standstill Agreement of even date herewith by and between PSI and the Company
contemporaneously with the execution of this confidentiality agreement.
It is further agreed that PSI or the Company may elect at any time to
terminate further access to, and review of the Evaluation Material. If such an
election is made by PSI or if PSI determines that it does not wish to enter into
a friendly, mutually agreeable Acquisition Transaction with the Company, PSI
will promptly advise the Company of such determination. In such case or in the
event that no Acquisition Transaction by PSI and the Company is effected for any
reason whatsoever after the Evaluation Material is furnished to PSI, or
otherwise upon the written request the Company, PSI will promptly deliver to the
Company all Evaluation Material and other documents or materials furnished by
the Company to PSI or any of the PSI Representatives, together with all copies
thereof in the possession of PSI or any PSI Representatives. In the event of
such return of Evaluation Material, all memoranda, notes, compilations,
analysis, studies, and other writings prepared by PSI or any of the PSI
Representatives based on the Evaluation Materials will be destroyed, with any
such destruction confirmed by PSI in writing to the Company. Notwithstanding the
return or destruction of such Evaluation Material, and related information, PSI
and the PSI Representatives will continue to be bound by the confidentiality and
other obligations under this Agreement. The obligations and agreements contained
in this Agreement shall survive any such termination and shall remain in effect.
Although PSI understands that the Company has endeavored to include in
the Evaluation Material information known to the Company which the Company
believes to be relevant for the purpose of PSI's investigation, PSI further
understands that neither the Company, nor any of its agents or representatives
make any representation or warranty as to the accuracy or completeness of the
Evaluation Material. PSI agrees that neither the Company or its Affiliates nor
any of its or its Affiliates' directors, officers, employees, agents,
representatives, or advisors shall have any liability to PSI or any of the PSI
Representatives resulting from the use of the Evaluation Material. Only those
representations and warranties that may be made to PSI or your Affiliates in a
definitive written agreement for an Acquisition Transaction, when, as, and if
executed and subject to such limitations and restrictions as may be specified
therein, shall have any legal effect, and you agree that if you determine to
engage in an Acquisition Transaction such determination will be based solely on
the terms of such written agreement and on your own investigation, analysis, and
assessment of the business to be acquired. Moreover, unless and until such a
definitive written agreement is entered into, none of the Company, its
affiliates, or PSI will be under any obligation of any kind whatsoever with
respect to such an Acquisition Transaction except for the matters specifically
agreed to in this Agreement. This Agreement embodies the entire understanding
and agreement between the parties with respect to the Evaluation Material and
the Acquisition Transaction and supersede any prior understandings and
agreements relating thereto. The agreements set forth in this Agreement may be
modified or waived only by a separate writing signed by both the Company and PSI
which expressly so modifies or waives such agreements.
PSI also acknowledges that money damages would be both incalculable and
an insufficient remedy for any breach of this Agreement by PSI or the PSI
Representatives and that any such breach would cause the Company irreparable
harm. Accordingly, you also agree that in the event of any breach or threatened
breach of this Agreement, the Company, in addition to any other remedies at law
or in equity it may have, shall be entitled, without the requirement of posting
a bond or other security, to equitable relief, including injunctive relief and
specific performance.
PSI agrees that it will indemnify the Company and its Representatives,
in respect of all claims, losses, costs, liabilities, and expenses, including
reasonable attorneys fees and disbursements (during
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investigation prior to initiation of litigation, during litigation, and at trial
and appellate proceedings if litigation ensues), directly or indirectly
resulting from or arising out of the enforcement of this confidentiality
agreement, including, but not limited to, enforcement proceedings with respect
to any breach or claimed breach of this confidentiality agreement by PSI or any
PSI Representative.
It is understood and agreed that no failure or delay by the Company 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 of any right, power or privilege
hereunder.
The obligations and agreements contained in this Agreement are in
addition to, and not in limitation of, any other applicable legal restrictions
upon the use and disclosure of the Evaluation Materials.
The invalidity or unenforceability of any provision of this Agreement
shall not affect the validity or enforceability of any other provisions of this
Agreement, which shall remain in full force and effect.
This Agreement shall be governed by and construed in accordance with
the laws of the State of California applicable to contracts made and to be
performed within such state, without giving effect to its conflicts of laws,
principles, or rules.
The provisions of this Agreement shall expire three years from the date
hereof.
If you are in agreement with the foregoing, please indicate by signing
and returning one copy of this Agreement, which thereupon will constitute our
agreement with respect to the subject matter hereof.
Very truly yours,
OPHTHALMIC IMAGING SYSTEMS
By: /s/ STEVEN R. VERDOONER
---------------------------
Steven R. Verdooner
Chief Executive Officer
Confirmed and agreed to as of to as of
the date first written:
PREMIER LASER SYSTEMS, INC.
By: /s/ COLETTE COZEAN
--------------------------
Colette Cozean, Ph.D.
Title: President, CEO and Chairman
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