EXHIBIT 2.(iv)
ASSIGNMENT AGREEMENT
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ASSIGNMENT AGREEMENT dated as of August 29, 1997, by and between
INTERNATIONAL BUSINESS MACHINES CORPORATION, a New York corporation (hereinafter
"IBM") and LASERSIGHT PATENTS, INC., a Delaware corporation ("LaserSight").
Background
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Pursuant to an agreement dated January 1, 1997 between IBM and
LaserSight Incorporated, the sole stockholder of LaserSight ("Sale Agreement"),
IBM has agreed to assign its right, title and interest in and to, inter alia,
the patent license agreement between IBM and VISX, Inc. dated January 1, 1992
("VISX License").
LaserSight Incorporated has requested and directed IBM, and IBM has
agreed, to convey the VISX License to LaserSight.
For good and valuable consideration, the receipt of which is hereby
acknowledged, the parties hereto agree as follows:
1. Representations. IBM represents and warrants that:
(a) it has the full right and power to assign the VISX License;
(b) there are no outstanding agreements, assignments, or
encumbrances inconsistent with the provisions of this Agreement;
(c) IBM is not in breach of any of its obligations under the VISX
License;
(d) to the actual knowledge of IBM's Intellectual Property &
Licensing Department, VISX is not in breach of any of its obligations under the
VISX License.
2. Assignment of the VISX License. IBM, by this instrument, does does
assign, convey, grant, bargain, transfer, set over, deliver and confirm unto
LaserSight, its successors and assigns, forever all right, title and interest in
or to the VISX License and all rights thereunder of every kind and nature
whatsoever other than those rights under Section 10.1 of the VISX License that
are not assignable to LaserSight without the consent of VISX, provided however,
that IBM retains its full right and interest to royalties payable to IBM accrued
by VISX, Inc. under the VISX License prior to January 1, 1997, in particular for
the shipment of pre-FDA approval products.
3. Further Assurances. IBM will execute, acknowledge and deliver to or
upon the order of LaserSight, such further instructions of conveyance,
assignment and transfer and take such action as LaserSight may reasonably
request in order to more effectively assign, convey, or transfer to, or perfect
the title or interest of LaserSight in the VISX License intended to be hereby
assigned.
4. Amendments. This Agreement may not be amended or terminated orally,
and may only be amended or terminated in writing by the parties hereto. This
Agreement shall be binding upon and inure to the parties hereto and their
successors and permitted assigns. All agreements, covenants, provisions,
representations and warranties made herein shall survive the assignment of the
rights of IBM and the VISX License to LaserSight and the performance of all
other provisions of this Agreement.
5. Governing Law. This Agreement shall be construed, and the legal
relations between the parties hereto shall be determined in accordance with the
laws of the State of Delaware.
6. Headings. The headings in this Agreement are for convenience only
and shall not limit or otherwise effect any of the provisions hereof.
7. Counterparts. This Agreement may be executed in counterparts, each
of which shall be deemed to be an original, but all of which together shall
constitute one and the same instrument.
The parties hereto have caused this Assignment Agreement to be duly
executed all as of the day and year first above written.
INTERNATIONAL BUSINESS MACHINES
CORPORATION, a New York corporation
By: /s/ Xxxxxxxx X. Xxxxxx, Xx.
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Name: Xxxxxxxx X. Xxxxxx, Xx.
Title: Vice President
Intellectual Property & Licensing
LASERSIGHT PATENTS, INC.,
a Delaware corporation
By: /s/ Xxxxxxx X. Xxxxxx
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Name: Xxxxxxx X. Xxxxxx
Title: President and Chief Executive Officer
