EXHIBIT 99.4
CONFIDENTIAL TREATMENT REQUESTED
PRODUCT PURCHASE AGREEMENT
This Product Purchase Agreement ("Agreement") is made, entered into and
is effective as of August 15, 2002, by and between LASERSIGHT TECHNOLOGIES,
INC., a Delaware corporation ("LaserSight"), and SHENZHEN NEW INDUSTRIES MEDICAL
DEVELOPMENT CO., LTD., a Chinese corporation ("SNIMD").
RECITALS:
A. LaserSight is in the business of manufacturing and selling
refractive laser systems and related products.
B. SNIMD desires to purchase and LaserSight desires to sell to
SNIMD certain LaserSight products on the terms and subject to the conditions set
forth in this Agreement.
NOW, THEREFORE, in consideration of the recitals and mutual promises
and covenants contained in this Agreement, the parties agree as follows:
1. Minimum Purchases by SNIMD.
(a) SNIMD hereby orders from LaserSight at least
$10,000,000 (the "Purchase Minimum") worth of Products (as defined
herein). SNIMD shall purchase such products during the twelve-month
period immediately following the date of this Agreement (the "Purchase
Period").
(b) The products to be purchased (collectively, the
"Products") and the price to be paid by SNIMD for each such product is
described below:
Purchase
Product Price
LaserScan LSX Excimer Laser System ("Laser") **
AstraMax Integrated Diagnostic Workstation **
UltraShaper Keratome - Starter Kit **
UltraEdge Keratome Blades (box of 10 blades) **
(c) SNIMD shall order at least 10 Lasers during the
first 90 days of the Purchase Period and shall order a total of at
least 40 Lasers during the Purchase Period.
(d) In connection with purchasing Products SNIMD shall
submit purchase orders to LaserSight. Such purchase orders shall be in
English and executed by an authorized officer of SNIMD.
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** CONFIDENTIAL TREATMENT HAS BEEN REQUESTED FOR PORTIONS OF THIS DOCUMENT. THE
REDACTED MATERIAL HAS BEEN FILED SEPARATELY WITH THE COMMISSION PURSUANT TO
AN APPLICATION FOR CONFIDENTIAL TREATMENT.
2. Repairs and Maintenance. If a Laser is purchased during the
Purchase Period then for a period of twelve months immediately following the
date of such purchase (the "Warranty Period") LaserSight shall provide parts to
SNIMD on the following terms:
(a) If a laser head on a Laser purchased by SNIMD
pursuant to this Agreement must be replaced, LaserSight shall provide
such laser head to SNIMD at **.
(b) LaserSight shall supply all other parts to SNIMD at
a price equal to **.
Parts purchased or provided pursuant to this Section 2 shall only be used to
repair Lasers purchased pursuant to the terms of this Agreement. For Lasers
purchased after the expiration of the Purchase Period and for Lasers not
purchased under this Agreement, LaserSight shall supply SNIMD parts for such
products at a price equal to **. LaserSight shall be SNIMD's exclusive supplier
of parts needed to repair the Products. SNIMD shall be responsible for all labor
costs associated with repairing and maintaining the Products and any
installation and training associated with the Products. After the Warranty
Period expires parts will be supplied to SNIMD pursuant to the terms of the
Distribution Agreement entered into between the parties hereto as of the date
hereof (the "Distribution Agreement").
3. Purchase Price/Payment Terms. The purchase price for the
Products shall be that amount indicated in Section 1(b). The purchase price for
parts shall be that amount described in Section 2.
The purchase price for all Products and parts sold to SNIMD shall be paid via
irrevocable letters of credit that provide for partial shipment and payment at
sight (e.g., LaserSight's presentation of shipping documents). Such letters of
credit will be confirmed by a financial institution designated by LaserSight and
the costs of such letters of credit shall be borne by SNIMD. On or before August
30, 2002, and each 90 days thereafter during the Purchase Period, SNIMD will put
into effect a letter of credit that satisfies the terms of this paragraph and is
in a minimum amount of $2,500,000.
Except as set forth in the following sentence, during the twelve-month period
immediately following the date of this Agreement LaserSight shall be responsible
for shipment and insurance costs associated with all Products and parts
purchased by SNIMD from LaserSight. During the initial twelve month period
immediately following the date of this Agreement SNIMD shall be responsible for
all shipment and insurance costs associated with laser heads supplied to SNIMD
from LaserSight, and SNIMD shall be responsible for all applicable taxes and
duties associated with all Products and parts purchased by SNIMD from
LaserSight.
After the expiration of the Purchase Period, the purchase price for Products and
the payment terms and conditions therefore shall be determined in accordance
with the terms of the Distribution Agreement.
4. Miscellaneous.
(a) The sale of all Products shall be subject to the standard
terms and conditions attached hereto as Exhibit B.
(b) This Agreement shall be binding on the parties
hereto, their successors and assigns including, without limitation, any
purchaser or other successor of all or substantially all of either
party's assets as a going business.
(c) Any notice or other communication required or
permitted hereunder shall be deemed given on the date delivered if
delivered personally or by facsimile with proper evidence of
transmission, or five days after deposit in the United States mail, by
registered or certified mail, postage prepaid, addressed:
if to SNIMD: Shenzhen New Industries Medical Development Co., Ltd.
Rm: 2308 ShenZhen Science & Technology Building,
No. 1001, Shangbu Zhong Road, ShenZhen, China
Attention: Xxxxxx Xxx
Facsimile: (0000) 00000000
if to LaserSight: LaserSight Technologies, Inc.
0000 Xxxxxxxxxx Xxxxxxxxx, Xxxxx 000
Xxxxxx Xxxx, Xxxxxxx 00000
Attention: President
Facsimile: (000) 000-0000
or at such other address as any party may designate by 10 days
advance written notice to the other party.
(d) This Agreement and the exhibit hereto which is
incorporated herein by this reference, supersede and replace any and
all previous working agreements, understandings, policies, and
practices whether or not in writing between LaserSight and SNIMD
concerning the subject matter hereof, and contains the entire
understanding between the parties hereto with respect to the subject
matter hereof. If the terms of this Agreement conflict with the terms
of any purchase order or invoice issued by either party the terms of
this Agreement shall control. Unless otherwise specifically provided in
this Agreement, no amendment, modification or waiver hereof shall be
made or be binding unless in writing and signed by both parties hereto.
Neither party may assign or delegate its rights, obligations or
responsibilities hereunder without the other party's prior written
consent.
(e) This Agreement is to be governed by and construed
in accordance with the laws of the State of Florida, without regard to
any conflict of law principles to the contrary.
(f) Any action brought under this Agreement by
LaserSight may only be brought in a court of competent jurisdiction
sitting in the State of Florida. The parties irrevocably submit to the
personal jurisdiction of any federal court sitting in the State of
Florida over any suit, action or proceeding arising out of or relating
to this Agreement which is brought by LaserSight. The parties
irrevocably waive, to the extent permitted by law, any objection which
they may now or hereafter have to the laying of the venue of any such
suit, action or proceeding brought in such a court and any claim that
any such suit, action or proceeding has been brought in an inconvenient
forum. In the event that either party incurs costs or fees, including
reasonable attorney's fees, in enforcing its rights under this
Agreement, the party substantially prevailing in any suit or action,
including any appeal, shall be entitled to recover from the other such
costs and reasonable attorney's fees.
(g) This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original.
(h) This Agreement and the terms and transactions
contemplated hereby shall be kept confidential until the parties hereto
mutually agree upon the language and timing of a press release or until
such time as one such party determines, based on the advice of counsel,
that a public announcement is required by law, in which case the
parties hereto shall use reasonable best efforts to agree on any public
announcements or public statements with respect thereto. If the parties
are unable to so agree, a party will not be deemed in violation of this
Section for subsequent public announcements or public statements.
(i) SNIMD shall not take any action which will cause
LaserSight to be in violation of any law of any jurisdiction in the
Products are shipped including, but not limited to antitrust laws, the
U.S. Foreign Corrupt Practices Act of 1977, the U.S. Export Control
laws and the U.S. Anti-Boycott laws.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
dates set forth below.
LASERSIGHT TECHNOLOGIES, INC. SHENZHEN NEW INDUSTRIES
MEDICAL DEVELOPMENT CO., LTD.
Signature: /s/ Xxxxxxx X. Xxxxxx Signature: /s/ Xxxxxx Xxx
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Name: Xxxxxxx X. Xxxxxx Name: Xxxxxx Xxx
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Title: President & CEO Title: President
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