Common use of Additional Qualifications, Limitations Clause in Contracts

Additional Qualifications, Limitations. In addition to the qualifications and limitations set forth elsewhere in this Article, the following shall apply: (a) Notwithstanding the provisions of Section 8.1, any party shall be free to independently develop or acquire all or any portion of any New Location or Existing Location ("Target Locations") that is located entirely outside of the Restricted Area. (b) No provision of this Article shall be construed to require any party to this Agreement to acquire or develop any Target Location and in no event shall Newco's acquisitions or development result in PMSI's owning, directly or indirectly, less than fifty-one percent (51%) of the total voting equity interests in a Target Location without the prior written consent of PMSI, but neither Moadel nor PC shall be in breach of this subsection (b) if an acquisition or development described herein is inadvertently consummated under the direction of Newco's managers; (c) Notwithstanding the provisions of Section 8.1, any party shall be free to independently acquire all or any portion of the non-Refractive Surgery assets and business of any Target Location, regardless of whether it is in the Restricted Area, to the extent those assets and business are not significantly used by such Target Location for the conduct of Refractive Surgery or any business substantially the same as the Assets Related Business; (d) Notwithstanding the provisions of Section 8.1, any party shall be free to independently acquire or (with respect to PMSI or Prime) merge with any Existing Business if, with respect to such Existing Business, (i) the prior twelve months' revenues that arose from Refractive Surgery in the Restricted Area comprise not more than ten percent (10%) of the total prior twelve months' revenues that arose from Refractive Surgery or (ii) the number of Refractive Surgery procedures done during the prior twelve months within the Restricted Area comprise not more than ten percent (10%) of the total number of Refractive Surgery procedures done during the prior twelve months.

Additional Qualifications, Limitations. In addition to the qualifications and limitations set forth elsewhere in this ArticleARTICLE, the following shall apply: (a) Notwithstanding the provisions of Section 8.1, any party shall be free to independently develop or acquire all or any portion of any New Location Center or any Existing Location Center (collectively, "Target LocationsCenters" and individually, "Target Center") that whose physical location is located entirely outside of the Restricted Area.; (b) No provision of this Article shall be construed to require any party to this Agreement to acquire or develop any Target Location and in no event shall Newco's acquisitions or development result in PMSI's owning, directly or indirectly, less than fifty-one percent (51%) of the total voting equity interests in a Target Location without the prior written consent of PMSI, but neither Moadel nor PC shall be in breach of this subsection (b) if an acquisition or development described herein is inadvertently consummated under the direction of Newco's managers; Center; (c) Notwithstanding the provisions of Section 8.1, any party shall be free to independently acquire all or any portion of the non-Refractive Surgery assets and business of any Target LocationCenter, that are not related to Refractive Surgery or ophthalmology, regardless of whether it such Target Center is in the Restricted Area, to the extent those assets and business are not significantly used by such Target Location for primarily in, materially relied on for, or substantially related to the conduct of Refractive Surgery or any business substantially the same as the Assets Related Business; by such Target Center; (d) Notwithstanding the provisions of Section 8.1, as part of a larger acquisition transaction any party shall be free to independently acquire acquire, or (with respect to PMSI or Prime) Prime merge with with, any Existing Business existing business if, with respect to such Existing Businessexisting business, (i) the prior twelve months' year's revenues that arose from Refractive Surgery in the Restricted Area comprise not more than ten percent (10%) of the total prior twelve months' year's revenues that arose from Refractive Surgery or (ii) the number of Refractive Surgery procedures done during the prior twelve months year within the Restricted Area comprise not more than ten percent (10%) of the total number of Refractive Surgery procedures done during the prior twelve monthsyear; provided, however, that if PMSI acquires, directly or indirectly, an interest in a center that is located within the Restricted Area (an "Incidental Center"), then PMSI shall, to the extent allowed under the credit facilities of PMSI and its subsidiaries, within thirty (30) days of such acquisition, notify Caster thereof and provide him with such information concerning the Incidental Center as he shall reasonably request in order to make his investment decision hereunder), and Caster shall have thirty (30) days following receipt of such notice within which Caster may elect to acquire a forty percent (40%) profits interest (not ownership interest) with respect to PMSI's economic interest in such Incidental Center (the "Profits Acquisition"). For example, and only for purposes of illustration, if a subsidiary of PMSI acquired a sixty percent (60%) ownership interest in an Incidental Center, the Profits Acquisition pursuant to this subsection (d) would enable Caster to acquire, indirectly through such subsidiary, the right to twenty-four percent (24%) of the profits of the Incidental Center (i.e. 40% multiplied by 60%). The closing of any Profits Acquisition must occur within sixty (60) days following delivery of Caster's election to acquire a profits interest, with the price determined using the allocable portion of the purchase price paid by PMSI or its affiliate in the acquisition giving rise to the Incidental Center, and upon such other terms and conditions as may be negotiated by the parties in good faith. If Caster elects not to acquire a profits interest in an Incidental Center, or fails to notify PMSI of his election to do so within the 30-day period provided above (which shall be deemed an election not to acquire), or if such acquisition is prohibited under the credit facilities or subordinated debt indenture of PMSI or its subsidiaries, then PMSI must elect, or cause its acquiring subsidiary to elect, among the following alternative actions, which selected action must be taken within the time period specified below. (i) Within one hundred twenty (120) days of such election not to acquire a profits interest, Prime or PMSI, as applicable, shall convert the Incidental Center to a Discount Center (as hereinafter defined). (ii) Within one hundred twenty (120) days of such election not to acquire a profits interest, Prime or PMSI, as applicable, shall terminate all of the operations of such Incidental Center that consist of and are reasonably related to the conduct of Refractive Surgery. (iii) Within one (1) year of such election not to acquire a profits interest, PMSI shall (but only if PMSI has not elected one of the alternatives specified in clauses (i) and (ii) above) sell all of its direct or indirect interest in such Incidental Center to a third party, retaining no interest of any kind, whether direct or indirect, in said Incidental Center (except that PMSI may retain a creditor interest, but not a profits interest or other interest measured by operations or results of operations, with respect to any deferred portion of the purchase price applicable to such sale); provided further, that PMSI must exercise commercially reasonable efforts to sell such interest as soon as practical, and PMSI will ensure that neither it nor any of its affiliates or subsidiaries will share Proprietary Information (as hereinafter defined) with the Incidental Center pending such sale.

Additional Qualifications, Limitations. In addition to the qualifications and limitations set forth elsewhere in this Article, the following shall apply: (a) Notwithstanding the provisions of Section 8.1, any party shall be free to independently develop or acquire all or any portion of any New Location or Existing Location ("Target Locations") that is located entirely outside of the Restricted Area. (b) No provision of this Article shall be construed to require any party to this Agreement to acquire or develop any Target Location and in no event shall Newco's acquisitions or development result in PMSI's owning, directly or indirectly, less than fifty-one percent (51%) of the total voting equity interests in a Target Location without the prior written consent of PMSI, but neither Moadel nor PC shall be in breach of this subsection (b) if an acquisition or development described herein is inadvertently consummated under the direction of Newco's managers; ; (c) Notwithstanding the provisions of Section 8.1, any party shall be free to independently acquire all or any portion of the non-Refractive Surgery assets and business of any Target Location, regardless of whether it is in the Restricted Area, to the extent those assets and business are not significantly used by such Target Location for the conduct of Refractive Surgery or any business substantially the same as the Assets Related Business; ; (d) Notwithstanding the provisions of Section 8.1, any party shall be free to independently acquire or (with respect to PMSI or Prime) merge with any Existing Business if, with respect to such Existing Business, (i) the prior twelve months' revenues that arose from Refractive Surgery in the Restricted Area comprise not more than ten percent (10%) of the total prior twelve months' revenues that arose from Refractive Surgery or (ii) the number of Refractive Surgery procedures done during the prior twelve months within the Restricted Area comprise not more than ten percent (10%) of the total number of Refractive Surgery procedures done during the prior twelve months.

Additional Qualifications, Limitations. In addition to the qualifications and limitations set forth elsewhere in this Articleabove, the following shall apply:: -------------------------------------- (a) Notwithstanding the provisions All acquisitions of Section 8.1, any party shall Target Centers must be free to independently develop or acquire all or any portion of any New Location or Existing Location ("Target Locations") that is located entirely outside approved in advance by a majority of the Restricted Area.board of directors of Prime; (b) No provision If the exclusivity obligation contained in Section 8.1 above does not apply to a particular Target Center solely because of this Article the limitation set forth in Section 8.1(a), and Prime or one of its affiliates acquires such Target Center prior to the occurrence of any of the events described in Section 8.1(f), then (i) before consummating such acquisition, Prime or its acquiring affiliate shall be construed provide thirty (30) days' prior written notice to require any party LASIK of such pending acquisition, and LASIK shall have ten (10) days from its receipt of such notice to this Agreement notify Prime or its acquiring affiliate that LASIK would like to acquire or develop any Target Location and in no event shall Newco's acquisitions or development result in PMSI's owning, directly or indirectly, less than fifty-one a specified portion of up to forty percent (5140%) of the total voting equity interests non-medical Refractive Surgery portion of the interest being offered to Prime or its acquiring affiliate in a Target Location without such acquisition, upon the prior written consent of PMSIsame terms and conditions agreed to by Prime; provided, but neither Moadel nor PC shall be however, that the participation right granted in breach of this subsection (bi) shall not apply if an (A) Prime or its acquiring affiliate does not receive notice from LASIK of its election to participate in such acquisition within the ten (10)-day period provided for such notice, (B) LASIK refuses or development described herein is inadvertently consummated under the direction of Newco's managers; unable to finance (cafter giving effect to subsection (ii) Notwithstanding the provisions of Section 8.1, any party shall be free to independently acquire all or any below) its specified portion of the non-Refractive Surgery assets acquisition, (C) LASIK refuses or is unable to timely execute, deliver and business of any Target Locationperform all agreements, regardless of whether documents and instruments required to be executed, delivered and performed by it is in the Restricted Area, (to the extent consistent with those assets and business are not significantly used executed by Prime or its acquiring affiliate in such Target Location for the conduct of Refractive Surgery or any business substantially the same as the Assets Related Business; (dtransaction) Notwithstanding the provisions of Section 8.1, any party shall be free to independently acquire or (D) LASIK fails or refuses to timely execute and deliver the promissory note and security agreement described in Section 8.2(e) below in the event LASIK borrows any funds pursuant to subsection (ii) below; (ii) If LASIK has fully complied with respect to PMSI or Prime) merge with any Existing Business ifits obligations and met all other conditions set forth under subsection (i), then, with respect to such Existing Business, that portion of the purchase price to be paid by LASIK under subsection (i) the prior twelve months' revenues that arose from Refractive Surgery ("LASIK's Purchase Price"), LASIK shall be entitled to request in the Restricted Area comprise writing and receive financing, made available by Prime or one of its affiliates, in an amount not more than to exceed ten percent (10%) of the total prior twelve months' revenues that arose from aggregate purchase price for the non-medical Refractive Surgery portion of the interest being offered to Prime or its acquiring affiliate in such acquisition (but in no event may such amount exceed LASIK's Purchase Price); provided, however, that LASIK's rights, and Prime's or its acquiring affiliate's obligations, under this subsection (ii) are subject entirely and in all respects to Prime's obtaining prior written approval from (A) the bank syndication under its outstanding borrowing facilities, and (B) any necessary number of holders of Prime's outstanding 8 3/4 Senior Subordinated Promissory Notes (as may be required pursuant to the Indenture governing such Notes); (c) If the exclusivity obligation contained in Section 8.1 above does not apply to the acquisition of a particular Target Center solely because of the limitation set forth in Section 8.1(d) or Section 8.1(e), and Prime or one of its affiliates acquires such Target Center prior to the occurrence of any of the events described in Section 8.1(f), then LASIK (or any combination of the principals of LASIK, but only pursuant to and in the manner provided for in written instructions delivered to PMSI and Prime by LASIK prior to such acquisition) shall receive warrants in connection with such acquisition, in substantially the form attached hereto as Exhibit A (the "Target Center Warrants"), entitling LASIK or such other person(s) to purchase, at one hundred ten percent (110%) of PMSI's closing share price as quoted by NASDAQ on the closing date of the acquisition of such Target Center, that whole number of shares of common stock of PMSI determined by: (i) if the Target Center is acquired solely in reliance on the exception contained in Section 8.1(d), multiplying (i) 0.0075, by (ii) the portion of the purchase price, expressed as a number and not in dollars, paid by Prime or its acquiring affiliate in respect of the Refractive Surgery procedures done during operations of such Target Center (specifically excluding the prior twelve months within value of any non-Refractive Surgery operations of such Target Center that are acquired pursuant to subsection (h) below); and (ii) if the Restricted Area comprise Target Center is acquired solely in reliance on the exception contained in Section 8.1(e), multiplying (i) 0.0025, by (ii) the portion of the purchase price, expressed as a number and not more than ten in dollars, paid by Prime or its acquiring affiliate in respect of the Refractive Surgery operations of such Target Center (specifically excluding the value of any non-Refractive Surgery operations of such Target Center that are acquired pursuant to subsection (h) below); (d) The rights granted under Section 8.2(b) are personal to LASIK and, notwithstanding any other provision of this Agreement, may not be assigned to or exercised by any other party; (e) Any and all amounts loaned to LASIK pursuant to Section 8.2(b)(ii) above shall be evidenced by a promissory note which shall provide that, among other things (i) such amounts shall bear interest at the per annum rate of fifteen percent (1015%) or, following any default by LASIK under such promissory note or under any other agreement, document or instrument executed by LASIK for the benefit of Prime, PMSI or one of their affiliates, the total number maximum rate allowed by law, (ii) such amounts shall be repaid in equal monthly installments of Refractive Surgery procedures done during principal and interest over a period of sixty (60) months, and (iii) the prior twelve months.promissory note shall be governed by Texas law; provided further that such amounts shall be secured by a security agreement executed and delivered by LASIK to Prime or its acquiring affiliate, securing all of LASIK's obligations under such promissory note with all of LASIK's right, title and interest in and to the Target Center being acquired (all notes, security agreements and other agreements, documents, instruments or certificates required to be executed by any party pursuant to this subsection (e) are referred to herein as the "Target Center Lending Documents," and all Target Center Lending Documents shall be in form and substance reasonably satisfactory to Prime and, unless specifically specified otherwise, shall be deemed included in the Transaction Documents for purposes of this Agreement, regardless of when executed);