Exhibit 10.23
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PURCHASE AGREEMENT WITH NONCOMPETE
This Purchase Agreement ("Agreement"), dated December 3, 2003,
("Effective Date"), is between AMERICAN OPTISURGICAL, INC., a California
corporation ("Buyer") and Paradigm Medical Industries, Inc., a Delaware
corporation, ("Seller").
AGREEMENT
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1. For the consideration described below, and on the terms and subject
to the conditions in this Agreement, Seller here sells, conveys, assigns,
transfers, and delivers to Buyer, and Buyer here purchases and accepts from
Seller and assumes as of the Closing Date the assets ("Assets") listed in
Exhibit 1, generally consisting of two product lines of cataract removal
machines (known as the Mentor Odyssey and the Mentor Sistem) and all goodwill,
trademarks, patents, software codes and programs, supplies, work in process,
finished goods, and molds related thereto that Seller possesses.
2. The Buyer shall non-exclusively license Seller to the use of the
patents purchased by Buyer herein. Said license shall be limited to Seller"s use
of the patents in conjunction with Seller"s Photon\Percisionist technology.
3. The purchase price ("Purchase Price") to be paid by Buyer to Seller
for the Assets is One Hundred and Twenty Five Thousand Dollars ($125,000.00),
payable on the Closing Date. The purchase price shall be allocated as follows:
60% Intellectual property
40% All other
4. Seller here represents and warrants to Buyer that:
(a) Seller owns all the Assets, free and clear of all liens,
charges, claims, restrictions, or encumbrances. Seller has the full right,
power, and authority to sell, transfer, and deliver to Buyer, according to this
Agreement, all of the Assets in their possession, free and clear of all liens,
charges, claims, equities, restrictions, and encumbrances. The sale by Seller of
the Assets does not constitute a breach or violation of, or default under, any
will, deed or trust, security agreement, or other instrument by which such
Seller is bound.
(b) The execution of, carrying out of and compliance with the
provisions of this Agreement by Seller, will not violate any provision of law
and will not conflict with or result in any breach of any of the terms,
conditions, or provisions of, or constitute a default under, or result in the
creation of, any lien, charge, or encumbrance on any or the Assets pursuant to
the Certificate of Incorporation of Seller, By Laws of Seller, or any indenture,
mortgage, deed of trust, security agreement or other instrument to which Seller
is a party or by which Seller is bound or affected.
(c) Seller is a corporation duly organized, validly existing, and
in good standing under the laws of Delaware.
(d) There are no actions, suits, claims, proceedings,
investigations, or litigation pending, or to the knowledge of the Seller
threatened against or affecting Seller, at law or in equity or admiralty, or
before any federal, state, municipal, or other governmental department,
commission, board, bureau, agency, or instrumentality, domestic or foreign, in
direct relation to the Assets.
(e) The Assets of Seller are sold AS IS, WHERE IS and with all
faults.
(f) Seller's representations and warranties in this Agreement
shall be true as of, and survive, the Effective Date for one (1) year.
5. The purchase and sale described in this Agreement shall be
consummated, unless delayed to another date by agreement of the parties in
writing, at 10:00 a.m. Pacific Standard Saving Time on December 4, 2003
("Closing Date") at 0000 Xxxxx 0000 Xxxx, Xxxx Xxxx Xxxx, Xxxx ("Closing
Place").
6. On the Closing Date, at the Closing Place:
(a) Buyer shall deliver to Seller or its agent this signed
Agreement, properly executed by Buyer, required to evidence Buyer's obligations
under this Agreement and the purchase price under section 3, above; and,
(b) Seller shall transfer to Buyer possession of all of the Assets
which can physically be delivered. Seller shall use its commercially-reasonable
best efforts at Buyer"s expense to obtain the execution by third parties and
deliver to Buyer instruments of assignment and transfer of all the Assets and
assignments executed by Seller, Buyer and the third parties in a form mutually
agreed by the Parties, assigning any rights in the assets, including but not
limited to the patents and trademarks. After the Closing Date, Seller shall
continue to fully cooperate with Buyer to complete the proper transfer of the
Assets sold herein, including but not limited to transfers which are recorded
with the U.S. Patent and Trademark Office.
7. Seller shall indemnify, defend and hold harmless Buyer against and
in respect of and all claims, demands, losses, costs, expenses, obligations,
liabilities, damages, recoveries and deficiencies, including interest,
penalties, and reasonable attorneys' fees that Buyer shall incur or suffer, that
arise, result from, or relate to any breach of, or failure by Seller to perform
any of its representations, warranties, covenants or agreements in this
Agreement. Seller shall not be responsible for any warranties arising out of or
related to the use of the assets, whether any such warranty claims are related
to events occurring before or after the Closing Date.
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8. Buyer shall indemnify, defend and hold harmless Seller against and
in respect of and all claims, demands, losses, costs, expenses, obligations,
liabilities, damages, recoveries and deficiencies, including interest, penalties
and reasonable attorneys' fees that Seller shall incur or suffer that arise,
result from or relate to any act, omission or breach arising out of ownership or
operation of the Assets after the Closing Date. Buyer hereby assumes all
responsibility for servicing and warranties pertaining to equipment already sold
by Seller which were of or for the two product lines purchased herein.
9. For three (3) years from the Closing Date, Seller agrees that it
will not directly or indirectly own, manage, operate, join, control, or
participate in the ownership, management, operation, or control of, or be
employed or connected in any manner with or by, any business that competes with
Buyer in the market of cataract removal equipment (said market being limited in
scope to equipment substantially of the same as the proprietary technology of
the Mentor Odyssey and Mentor Sistem product lines purchased herein) in the
United States, unless Seller obtains the prior written consent of Buyer or
except as authorized under the limited license described in section 2, above.
Seller agrees that the remedy at law for any breach by her of any provision of
this paragraph will be inadequate and that, besides any other remedies it may
have, Buyer shall be entitled to temporary and permanent injunctive relief
without the necessity of proving actual damage to either Seller or to Buyer.
10. Nevada law governs this Agreement. Should any dispute arise out of
this Agreement, the Parties agree the jurisdiction and venue for any such action
shall be Xxxxx County, Nevada.
11. Buyer and Seller shall execute, acknowledge and deliver any further
assurances, documents and instruments reasonably requested by the other to give
effect to the transaction contemplated in this Agreement.
12. Seller and Buyer are independent of each other and shall so
represent themselves to all third parties. Neither Buyer nor Seller is the agent
or legal representative of the other and neither has the right or authority to
bind the other in any way. This Agreement creates no relationship of partnership
or a joint venture, and creates no pooling arrangement.
13. This Agreement shall inure to the benefit of, and shall be binding
upon, the assigns, successor in interest, personal representative, estates,
heirs, and legatees of Buyer and Seller.
14. In case of any controversy, claim, or dispute between Buyer and
Seller, arising out of or relating to this Agreement or the breach thereof, the
prevailing party shall be entitled to recover from the losing party reasonable
expenses, attorneys' fees, and costs.
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15. This Agreement contains the entire agreement of Buyer and Seller,
and are and shall remain confidential. Neither Party shall disclose the terms of
the Agreement to any third party except as necessary to complete transfer of
title of any of the assets or otherwise complete this transaction.
Dated: December 3, 2003 AMERICAN OPTISURGICAL, INC.
By: /s/ Xxx Xxxxxxx
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Xxx Xxxxxxx, President
Dated: December 3, 2003 PARADIGM MEDICAL INDUSTRIES, INC.
By: /s/ Xxxxxxx X. Xxxxx
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Xxxxxxx X. Xxxxx
Its: President and Chief Executive
Officer
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