EXHIBIT 10.5
AGREEMENT
of January 29, 2002
between
Asclepion-Meditec AG
Xxxxxxxxxxx Xxxxxxx 00-00
00000 Xxxx
(hereinafter referred to as the "Seller")
and
BIOLASE Europe GmbH
c/o Xxxxxxx Xxxx and Xxxx
Xxxxxxxxxxxxxxxxx 00
00000 Xxxxxxx
(hereinafter referred to as the "Purchaser")
Preamble
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The Seller and the Purchaser are parties to an Asset Purchase Agreement dated
January 29, 2002 (hereinafter referred to as the "Asset Purchase Agreement") as
a result of which the Purchaser acquired from the Seller certain assets, the
Seller assigned to the Purchaser certain contracts and transferred to the
Purchaser certain employment relationships.
The Seller and the Purchaser are also parties to a Real Estate Purchase
Agreement dated January 29, 2002, which is related to the Asset Purchase
Agreement.
The Seller and the Purchaser now agree as follows:
The parties acknowledge that it is their joint understanding that the Purchaser
shall effectively not be burdened with an actual payment of more than US-$
700,000.00 (in words: United States Dollar seven-hundred-thousand) resulting
from the transactions contemplated under the Asset Purchase Agreement and the
Real Estate Agreement. Accordingly, the parties agree that the remaining balance
of the aggregate Purchase Price (Article 8 of the Asset Purchase Agreement)
shall be covered by a credit (Gutschrift) of a minimum of US $-300,000.00 (in
words: United States Dollar three-hundred thousand), resulting from a *****
Agreement to be concluded between the Seller, the Purchaser and *****
(hereinafter referred to as the "***** Agreement").
However, in the event that (i) the ***** Agreement is not concluded by April 15,
2002, or any later date the Seller and the Purchaser mutually agree upon in
writing or (ii) the Purchaser does not receive the expected minimum payment of
US-$ 300,000.00 (in words: United States Dollar
---------------------
* In accordance with Rule 24b-2 under the Securities and Exchange Act of 1934,
this confidential information has been omitted from this exhibit pursuant to
a request for confidential treatment, and has been filed separately with the
Securities and Exchange Commission.
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three-hundred-thousand) resulting from the ***** Agreement, and (iii) the
parties are not able to mutually agree on any other arrangement resulting in a
credit (Gutschrift) to the Purchaser in the amount of US-$300,000.00 (in words:
United States Dollar three-hundred-thousand) within 6 weeks after the
negotiations of the ***** Agreement have failed, but not later than May 31,
2002, then the parties agree that the total Purchase Price shall be reduced by
US-$ 150,000.00 (in words: United States Dollar one-hundred-fifty) in which case
the first installment to be paid by the Purchaser according to Article 8
subsection 2 of the Asset Purchase Agreement may be reduced at the sole
discretion of the Purchaser to an amount between US-$ 150,000.00 (in words:
United States Dollar one-hundred-fifty-thousand) and US-$ 350,000.00 (in words:
United States Dollar three-hundred-fifty-thousand).
Signed at Munich on this 29th day of January 2002
On behalf of Asclepion-Meditec AG:
XXXXXXX XXXXXXXX /s/ X. XXXXXXXX
---------------------------
CORPORATE COUNSEL
On behalf of BIOLASE Europe GmbH:
XXXXXX XXXXXXXX /s/ XXXXXX XXXXXXXX
------------------------------------
ATTORNEY-IN-FACT
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* In accordance with Rule 24b-2 under the Securities and Exchange Act of 1934,
this confidential information has been omitted from this exhibit pursuant to
a request for confidential treatment, and has been filed separately with the
Securities and Exchange Commission.
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