EXHIBIT 99.5
PREMIER LASER SYSTEMS, INC.
HAND DELIVERED February 20, 1998
Steven R. Verdooner
Chief Executive Officer
and Chairman of the Board CONFIDENTIAL
Ophthalmic Imaging Systems
221 Lathrop Way, Suite I
Sacramento, CA 95815
Dear Mr. Verdooner:
In connection with your consideration of a possible merger, purchase,
consolidation, or other acquisition transaction (an "Acquisition Transaction")
pursuant to which Premier Laser Systems, Inc. ("PLSI") would acquire Ophthalmic
Imaging Systems, a California corporation (the "OISI"). PLSI proposes to make
available to you certain confidential, nonpublic, or proprietary information
concerning the business, operations, and assets of PLSI so that you may
determine whether you have an interest in any such 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 PLSI or its agents or representatives (including
attorneys) furnishes to OISI 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 OISI and its Affiliates' directors, officers, employees,
agents, advisors, or representatives of your agents or advisors (all of the
foregoing collectively referred to as "OISI 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 OISI, OISI 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. OISI will be responsible for any breach of this Agreement by
OISI or any OISI 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 OISI or an OISI Representative, (ii) was available to you on a
non-confidential basis prior to its disclosure to OISI by PLSI or its
representatives or agents, or (iii) becomes available to you on a
non-confidential basis from a source other than PLSI or its representatives or
agents (including, without limitation, information developed by OISI without use
of the Evaluation Material), provided that such source is not known by OISI
(after such inquiry as would be reasonable under the circumstances) to be bound
by a confidentiality agreement with PLSI or its representatives or agents, or
otherwise prohibited from transmitting the information to OISI or any OISI
Representative by a contractual, legal, or fiduciary obligation.
OISI agrees that the Evaluation Material will be kept confidential by
OISI and each OISI Representative and, except with the specific prior written
consent of PLSI or as expressly otherwise permitted by the terms hereof, will
not be disclosed by OISI or any OISI Representative. It is understood that OISI
may disclose the Evaluation Material only to those of the OISI Representatives
who, in OISI'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 OISI 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. OISI
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 OISI nor any OISI Representative will use any of the
Evaluation Material in any way detrimental to PLSI or its shareholders.
Without the prior written consent of PLSI, neither OISI nor any OISI
Representatives will disclose to any person (1) the fact that the Evaluation
Material has been made available to OISI or the OISI Representatives, or that
OISI or the OISI 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 PLSI about your intention to make, and the proposed contents of,
such disclosure) is, in the opinion of OISI'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 OISI or any of the OISI 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 OISI or the OISI
Representatives are advised by counsel that OISI or they must disclose such
information or else stand liable for contempt or other penalty or censure, it is
agreed that OISI or such OISI Representative, as the case may be, will provide
PLSI with prompt oral and written notice of such request(s) or requirement(s) so
that PLSI may seek an appropriate protective order or other appropriate remedy
and/or waive OISI's or such OISI Representative's compliance with the provisions
of this Agreement. In the event that such protective order or other remedy is
not obtained, or that PLSI grants a waiver hereunder, OISI or such OISI
Representative may furnish that portion (and only that portion) of the
Evaluation Material which, in the written opinion of OISI's counsel, that OISI
is legally required to disclose (provided, however, that if OISI proposes to
make any disclosure based on the advice of counsel as aforesaid, OISI will give
PLSI 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, OISI hereby acknowledges that OISI 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.
It is further agreed that OISI or PLSI may elect at any time to
terminate further access to, and review of the Evaluation Material. If such an
election is made by OISI or if OISI determines that it does not wish to enter
into an Acquisition Transaction with PLSI, OISI will promptly advise PLSI of
such
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determination. In such case or in the event that no Acquisition Transaction by
OISI and PLSI is effected for any reason whatsoever after the Evaluation
Material is furnished to OISI, or otherwise upon the written request PLSI, OISI
will promptly deliver to PLSI all Evaluation Material and other documents or
materials furnished by PLSI to OISI or any of the OISI Representatives, together
with all copies thereof in the possession of OISI or any OISI Representatives.
In the event of such return of Evaluation Material, all memoranda, notes,
compilations, analysis, studies, and other writings prepared by OISI or any of
the OISI Representatives based on the Evaluation Materials will be destroyed,
with any such destruction confirmed by OISI in writing to PLSI. Notwithstanding
the return or destruction of such Evaluation Material, and related information,
OISI and the OISI 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.
OISI understands that neither PLSI, nor any of its agents or
representatives make any representation or warranty as to the accuracy or
completeness of the Evaluation Material. OISI agrees that neither PLSI or its
Affiliates nor any of its or its Affiliates' directors, officers, employees,
agents, representatives, or advisors shall have any liability to OISI or any of
the OISI 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 PLSI, its affiliates, or
OISI 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 PLSI and OISI which expressly so
modifies or waives such agreements.
OISI also acknowledges that money damages would be both incalculable
and an insufficient remedy for any breach of this Agreement by OISI or the OISI
Representatives and that any such breach would cause PLSI irreparable harm.
Accordingly, you also agree that in the event of any breach or threatened breach
of this Agreement, PLSI, 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.
OISI agrees that it will indemnify PLSI and its Representatives, in
respect of all claims, losses, costs, liabilities, and expenses, including
reasonable attorneys fees and disbursements (during 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 OISI or any OISI Representative.
It is understood and agreed that no failure or delay by PLSI 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.
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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,
PREMIER LASER SYSTEMS, INC.
By: /s/ COLETTE COZEAN
--------------------------
Colette Cozean, Ph.D.
President, CEO and Chairman
Confirmed and agreed to as of
to as of the date first written:
OPHTHALMIC IMAGING SYSTEMS
By: /s/ STEVEN R. VERDOONER
-----------------------
Steven R. Verdooner
Chief Executive Officer
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