SETTLEMENT AGREEMENT
This Settlement Agreement (hereinafter
the "Agreement") is made and entered into as of the 22nd day of October, 2009,
by and between NEW INDUSTRIES INVESTMENT CONSULTANTS (HK) LTD, (hereinafter
referred to as “NIIC”) and LASERSIGHT INCORPORATED, LASERSIGHT TECHNOLOGIES,
INC., and LASERSIGHT PATENTS, INC. (hereinafter referred to collectively as the
“LASERSIGHT”).
W I T N E S S E T
H:
WHEREAS, on or about August 31, 2004,
and July 26, 2006, LASERSIGHT INCORPORATED AND LASERSIGHT TECHNOLOGIES, INC.
executed various promissory notes and security agreement in favor of NIIC,
copies of which are attached to the Complaint filed in the Florida state court
action between the parties, and, pursuant thereto, NIIC made various loans to
LaserSight Incorporated and LaserSight Technologies, Inc., with a total of
$4,669,683 due and owing NIIC as of November 30, 2008, plus subsequent accrued
interest;
WHEREAS, a dispute arose between NIIC
and LASERSIGHT with respect to the aforementioned loans and notes and
LASERSIGHT’s failure to abide by its terms; and
WHEREAS, a lawsuit was filed styled,
New Industries Investment
Consultants (HK) Ltd.,
Plaintiff, vs. LaserSight Incorporated and LaserSight Technologies, Inc.,
in the Circuit Court of the Ninth Judicial Circuit, in and for Orange County
Florida, being Civil Action File Number 08-CA-34406, Division 35, in which NIIC
asserted claims for breach of notes, foreclosure of security interest in
collateral and replevin (hereinafter the “Florida Action”);
WHEREAS, in the Florida Action, NIIC
and LASERSIGHT desire to fully and finally settle all differences, legal
disputes, claims, actions, causes of action, charges, or complaints between and
among them including the subject matter and all that is tangentially related to
the aforementioned Florida Action under the terms and provisions set forth
below.
WHEREAS, LASERSIGHT admits that it owes
NIIC the sum of $4,669,683, together with interest accruing after November 30,
2008, and all expenses and costs to be paid by LaserSight under the conditions
in the loan documents, incurred and to be incurred with this
settlement (hereinafter the “Indebtedness”)
NOW, THEREFORE, incorporating the
foregoing recital of facts and in consideration of the mutual promises and
agreements herein set forth, the parties hereto agree as follows:
A.
CONSIDERATION
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1.
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TERMS
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(a). Sixty
days after the date of this Agreement (“Closing Date”), as written above,
LASERSIGHT INCORPORATED shall transfer to NIIC all stock in LASERSIGHT
TECHNOLOGIES, INC. and LASERSIGHT PATENTS, INC. together with all assets,
tangible and intangible, including all intellectual property, and all company
documents, records, and files in any form, of LASERSIGHT TECHNOLOGIES, INC. and
LASERSIGHT PATENTS, INC. pursuant to agreements requested by
NIIC. Any original documents and tangible items shall be delivered to
Xxx Xxxxxxxxx, Esquire, 111 N. Orange Avenue, Suite 1450, Xxxxxxx, Xxxxxxx 00000
XXX, or as otherwise agreed by counsel.
(b) LASERSIGHT
PATENTS, INC. and LASERSIGHT TECHNOLOGIES, INC. further agree to
maintain their current operations without interruption from the date hereof
until the Closing Date, and shall use commercially reasonable efforts to retain
all current management and employees in their current positions until the
Closing Date. In order to facilitate a transition period, the current
officers of LASERSIGHT PATENTS, INC. and LASERSIGHT TECHNOLOGIES, INC. shall
remain in their respective positions for a period of ninety (90) days following
the Closing Date.
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(c) NIIC
agrees to forebear from pursuing any legal proceeding in the Florida Action,
provided that LASERSIGHT executes the relevant stock transfer documents
specified herein (the “Closing”).
(d) Time
is of the essence of this Agreement. In the event that LASERSIGHT
defaults on any of the above obligations, NIIC shall notify LASERSIGHT via its
attorney of the default hereunder by a nationally recognized overnight delivery
allowing LASERSIGHT thirty (30) calendar days from the date of such notice to
cure said default (the "Grace Period"). Said Grace Period shall
commence as of the date LASERSIGHT receives said notice.
(e) Should
LASERSIGHT fail to cure the default within said Grace Period, NIIC shall be
entitled to consent judgment in the Florida Action against Defendants for the
full amount of the admitted Indebtedness, plus interest, less credit for any
payment made hereunder.
(f) Immediately
following the Closing (no later than five business days after the Closing), NIIC
will dismiss with prejudice the Florida Action.
(g) Immediately
upon the execution of the company transfer documents, the aforementioned
Promissory Notes shall terminate and the parties shall have no further
obligations or liabilities to each other by virtue of those Notes on the
admitted Indebtedness.
(h) The
LASERSIGHT parties hereto represent, recognizing that the truth of the following
representation is a material inducement upon which this Agreement is based, that
they have not heretofore encumbered, assigned, transferred, conveyed, pledged,
hypothecated, or in any manner purported to encumber, assign, transfer, convey,
pledge, hypothecate, or transfer, to any person or entity, any stock or assets,
of LASERSIGHT PATENTS, INC. and LASERSIGHT TECHNOLOGIES, INC. , including but
not limited to the property referenced in the Security Agreement dated December
1, 2003, as incorporated herein. The LASERSIGHT parties hereto agree
to indemnify and hold NIIC harmless from and against any and all injuries, harm,
damages, costs, losses, expenses, and/or liability (including, but not limited
to, attorneys’ fees actually incurred), based on or arising out of or in any way
related to any claims or demands, of any nature, which may hereafter be asserted
against any NIIC hereto by, through, or by virtue of any such assignment,
transfer, conveyance, pledge, hypothecation, or encumbrance made prior to the
Closing Date.
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2.
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RELEASES
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(a). Release by LASERSIGHT and
Related Entities of NIIC.
Except
for the respective obligations of the parties, or any of them, set forth herein,
LASERSIGHT, and on behalf of its respective agents, assigns, attorneys,
accountants, employees, successors, predecessors, heirs, administrators,
executors, and representatives, (hereinafter collectively referred to as
“LaserSight Releasors”), hereby release and forever discharge, jointly and
severally, NIIC and its respective agents, assigns, attorneys, accountants,
employees, successors, predecessors, administrators, executors, representatives,
and others who may have acted or been claimed to have acted in concert with
them, or who may be liable or who might be claimed to be liable with them,
(hereinafter collectively referred to as “NIIC Releasees”) from any and all
charges, complaints, claims, liabilities, obligations, promises, agreements,
controversies, demands, damages, actions, causes of action or suits
of any kind or nature whatsoever (including, without limitation, those causes of
action and claims which could have been asserted by any of LaserSight Releasors
in this lawsuit, whether found in equity, or tort or contract law, arising out
of or in any way related to any act or omission of NIIC Releasees; whether known
or unknown, accrued or unaccrued which LaserSight Releasors ever had, now have,
may have, or may claim to have against NIIC Releasees). Further,
LaserSight Releasors hereby release and forever discharge NIIC Releasees from
any and all claims, complaints, charges, liabilities, obligations, damages,
actions, causes of action, or suits of any kind or nature arising from or
related to the causes of action that form all or part of the basis of the civil
action entitled, New
Industries Investment Consultants (HK) Ltd v. LaserSight Incorporated and
LaserSight Technologies, Inc., in the Circuit Court of the Ninth Judicial
Circuit, in and for Orange County Florida, being Civil Action File Number
08-CA-34406, Division 35 (Florida Action).
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It is expressly understood and agreed
that the release of NIIC Releasees by LaserSight Releasors is effective
immediately and is not contingent on any future event whatsoever.
LaserSight Releasors, jointly and
severally, acknowledge that subsequent to the execution of this Agreement, they,
or any of them, may determine that they, or any of them have incurred a loss,
damage, or injury which relates to the matters released herein, but which was
unknown, unaccrued, or unanticipated at the time of execution of this Agreement,
or that they, or any of them may have had a claim(s) or a cause(s) of action
which was unknown, unaccrued, or unanticipated at the time of execution of this
Agreement, and LaserSight Releasors, jointly and severally, hereby expressly
agree that the releases herein given shall apply to all such unknown and
unanticipated losses, damages, injuries, claims, and causes of
action.
(b). Release by NIIC and related
entities of LASERSIGHT.
Except
for the respective obligations of the parties, or any of them, set forth herein,
and upon full execution of stock and transfer documents as payment of the
Indebtedness as set forth in paragraph 1 of Section A. (Consideration) NIIC
Releasees, on behalf of themselves and each of them, and on behalf of their
respective agents, assigns, attorneys, accountants, employees, successors,
predecessors, heirs, administrators, executors, and representatives, and each of
them hereby release and forever discharge, jointly and severally, LaserSight
Releasors, as defined above, from any and
all charges, complaints, claims, liabilities, obligations, promises, agreements,
controversies, demands, damages, actions, causes of action or suits of any kind
or nature whatsoever (including, without limitation, those causes of action and
claims which could have been asserted by any of the NIIC Releasees in this
lawsuit, whether found in equity or tort or contract law, arising out of or in
any way related to any act or omission of LaserSight Releasors; whether known or
unknown, accrued or unaccrued which NIIC Releasees ever had, now have, may have,
or may claim to have against the LaserSight Releasors).
Further,
upon full transfer of all of the issued and outstanding capital stock in
LASERSIGHT PATENTS, INC. and LASERSIGHT TECHNOLOGIES, INC. as full
and final payment of the Indebtedness as set forth in paragraph 1 of Section A.
(Consideration) NIIC Releasees hereby release and forever discharge LaserSight
Releasors from any and all claims, complaints, charges, liabilities,
obligations, damages, actions, causes of action, or suits of any kind or nature
arising from or related to the causes of action that form all or part of the
basis of the civil action entitled, New Industries Investment
Consultants (HK) Ltd v. LaserSight Incorporated and LaserSight Technologies,
Inc, in the Circuit Court of the Ninth Judicial Circuit, in and for
Orange County Florida, being Civil Action File Number 08-CA-34406, Division 35
(Florida Action).
NIIC Releasees, jointly and severally,
acknowledge that subsequent to the execution of this Agreement and the relevant
transfer documents by LaserSight, they, or any of them, may determine that they,
or any of them has incurred a loss, damage, or injury which relate to the
matters released herein, but which was unknown, unaccrued, or unanticipated at
the time of execution of this Agreement, or that they, or any of them may have
had a claim(s) or a cause(s) of action which was unknown, unaccrued, or
unanticipated at the time of execution of this Agreement, and NIIC Releasees,
jointly and severally, hereby expressly agree that the releases herein given
shall apply to all such unknown and unanticipated losses, damages, injuries,
claims, and causes of action.
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B.
MISCELLANEOUS
PROVISIONS
A. Effective
Date. This Agreement shall become effective upon LASERSIGHT
INCORPORATED receiving required corporate authority and consent from its Board
of Directors and Shareholders in compliance with applicable law (the “Required
Consents”). LASERSIGHT INCORPORATED shall have a period not to exceed
sixty (60) days from the date hereof (“Consents Deadline”) to obtain the
Required Consents. In the event that LASERSIGHT INCORPORATED fails to
certify to NIIC prior to the Consents Deadline that the Required Consents have
been obtained, this Agreement shall become null and void.
B. Communications with Third
Parties. All parties to this Agreement agree that they shall
not communicate with, suggest, encourage, or in any way facilitate any
litigation or threatened litigation against any other party hereto in respect of
any claims that exist or may be claimed to exist by any third party against any
party hereto.
C. Facilitation of
Agreement. All parties hereto agree to sign and/or file any
and all necessary pleadings, motions, transfer agreements and company documents
or additional documentation required or which may be reasonably necessary in
order to carry out the intent of this Agreement. It is understood
that counsel for the affected parties shall have the opportunity to review and
comment upon any such motions, pleadings, transfer agreements and company
documents and additional documentation and all such counsel hereby agree to
promptly respond to the counsel who created such additional documents with any
requested revisions so that such additional documentation can be put before the
appropriate court or executed in the most expeditious manner
possible.
D. No Admission of
Liability. The execution of this Agreement and the
consideration given by each party hereunder shall not be deemed to be an
admission of liability by any party to this Agreement.
E. Enforcement of
Agreement. In the event any party(ies) to this Agreement sues
to enforce any provision of this Agreement, the successful party(ies) in such
litigation shall be entitled to an award of the attorneys’ fees, costs, and
expenses actually incurred as a result of such litigation.
F. Submission to Jurisdiction,
Continuing Jurisdiction. The parties hereto, to the extent
they may lawfully do so, hereby submit to the jurisdiction of any state or
federal court located in Orange County, Florida, as well as to the jurisdiction
of all courts from which an appeal may be taken from the aforesaid courts for
the purpose of any suit, action, or other proceeding arising out of or in any
way related to any of the parties' obligations under or with respect to this
Agreement and the parties hereto expressly waive any and all objections that
said parties may have as to jurisdiction and/or venue in any of such
courts.
G. Entire
Agreement. This Agreement and the Exhibits hereto contain the
entire agreement of the parties hereto and no waiver, modification, or amendment
of this Agreement shall be valid unless it is in writing and signed by the
parties hereto.
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H. Knowing and Voluntary
Execution. The parties to this Agreement expressly agree and
represent that they and/or their counsel have reviewed this Agreement, that the
parties hereto have thoroughly discussed all aspects of this Agreement with
their counsel, or, if any party is not represented by counsel in relation to
his, her, or its entering into this Agreement, that any such party has had an
opportunity to have counsel of their choice review the terms of this Agreement,
that all parties hereto have read and fully understand all of the provisions of
this Agreement, and that all parties hereto enter into this Agreement
voluntarily and of their own volition.
I. Non-Representation, No
Reliance. Each party to this Agreement represents and
acknowledges that in executing this Agreement they have not relied and do not
rely upon any representation or statement made by any other party or any other
party’s agents, representatives, or attorneys with regard to the subject matter,
basis, or effect of this Agreement.
J. Construction. The
parties to this Agreement acknowledge and agree that this Agreement and the full
and final settlement memorialized herein have been negotiated between and among
the parties. In the event of a dispute about the meaning,
construction, or interpretation of this Agreement, no presumption shall apply so
as to construe the language of the Agreement for or against any party to this
Agreement.
K. Binding
Effect. This Agreement shall be binding upon and inure to the
benefit of all of the parties hereto and upon their heirs, administrators,
representatives, executors, successors, and permitted assigns.
L. Controlling
Law. This Agreement is made and entered into in the State of
Florida, and shall in all respects be interpreted, enforced, and governed under
the laws of said state.
M. Usage of
Terms. As used in this Agreement, the masculine or neuter
gender, and singular or plural number, shall be deemed to include the others
whenever the context so indicates or requires.
N. No Transfer or Assignment of
Claims. The parties hereto represent, recognizing that the
truth of the following representation is a material inducement upon which this
Agreement is based, that they have not heretofore encumbered, assigned,
transferred, conveyed, pledged, hypothecated, or in any manner purported to
encumber, assign, transfer, convey, pledge, hypothecate, or transfer, to any
person or entity, any rights, demands, claims, suits, actions, or causes of
action released herein. Each party hereto agrees to indemnify and
hold each other party or parties hereto harmless from and against any and all
injuries, harm, damages, costs, losses, expenses, and/or liability (including,
but not limited to, attorneys’ fees actually incurred), based on or arising out
of or in any way related to any claims or demands, of any nature, which may
hereafter be asserted against any party or parties hereto by, through, or by
virtue of any such assignment, transfer, conveyance, pledge, hypothecation, or
encumbrance.
O. Multiple
Counterparts. This Agreement may be executed in multiple
counterparts and all such counterparts shall be taken together so that they may
constitute a completely executed agreement among the parties.
P. No Third Party
Beneficiaries. This Agreement shall not be construed to confer
upon any third person or entity not a party to this Agreement, any rights or
privileges, or to impose upon any of the parties to this Agreement any
obligations or responsibilities to third persons or entities not parties to this
Agreement, except to the extent that they are specifically referred to herein
(either individually, by class, or by status) as beneficiaries of the releases
contained in this Agreement.
PLEASE
READ CAREFULLY. THIS AGREEMENT INCLUDES A RELEASE OF ALL KNOWN AND
UNKNOWN CLAIMS.
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This
Agreement is executed under seal by each of the parties hereto on the first
above-mentioned date.
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LASERSIGHT
INCORPORATED
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BY: /s/Danghui(“Xxxxx”)Xxx
(SEAL)
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PRINT
NAME: Danghui (“Xxxxx”) Liu
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TITLE:
President
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LASERSIGHT
TECHNOLOGIES, INC.
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BY: /s/Danghui(“Xxxxx”)Xxx (SEAL)
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PRINT
NAME: Danghui (“Xxxxx”) Liu
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TITLE: President
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[SIGNATURE
BLOCKS CONTINUED ON NEXT PAGE]
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LASERSIGHT
PATENTS, INC.
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BY: /s/Danghui(“Xxxxx”)Xxx (SEAL)
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PRINT
NAME: Danghui (“Xxxxx”) Liu
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TITLE:
President
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NEW
INDUSTRIES INVESTMENT
CONSULTANTS
(HK) LTD.
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BY:
/s/Xx Xx
(SEAL)
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PRINT
NAME: Xx
XX
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TITLE: President
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