THIS TERMINATION
AGREEMENT ( “ Termination Agreement
” ) is entered into as of December 8, 2006, by
and among American Medical Systems Holdings, Inc., a Delaware
corporation (“ AMS ”), Laserscope, a California
corporation and indirect subsidiary of AMS ( “
Laserscope ” ), InnovaQuartz Incorporated, an
Arizona corporation and wholly-owned subsidiary of Laserscope (the
“ Company ” ), Stephen Griffin (“
Mr. Griffin ” ), The Griffin Family
Revocable Trust (the “ Griffin Trust
” ), and Brian Barr ( “
Mr. Barr ”). The Griffin Trust and Mr. Barr
as sometimes referred to herein individually as a “
Stockholder ” and collectively as the “
Stockholders .” Mr. Griffin and Mr. Barr as
sometimes referred to herein individually as a “ Company
Principal ” and collectively as the “ Company
Principals .”
WHEREAS,
Laserscope, the Griffin Trust, Mr. Griffin, Mr. Barr, and
the Company are parties to that certain Stock Purchase Agreement,
dated as of April 30, 2006 (the “ Purchase
Agreement ” ), pursuant to which Laserscope
acquired all of the issued and outstanding stock of the
Company.
WHEREAS, AMS and
Laserscope desire to buy out the Earnout Amounts under the Purchase
Agreement.
WHEREAS, the
Company and Mr. Griffin entered into that certain Employment
Agreement, dated May 1, 2006 (the “ Griffin
Employment Agreement ”), and the parties desire to
terminate Mr. Griffin’s employment with the Company and
engage Mr. Griffin as a consultant to the Company.
WHEREAS, the
Company and Mr. Barr entered into that certain Employment
Agreement, dated May 1, 2006 (the “ Barr
Employment Agreement ” ), and the parties desire
to confirm termination of Mr. Barr’s employment with the
Company.
WHEREAS, the
parties seek to terminate all of their obligations (other than the
Barr Lease, as defined below) under the Purchase Agreement and
release each other from all claims they may have against each
other, whether arising under the Purchase Agreement, the Griffin
Employment Agreement, and the Barr Employment Agreement or
otherwise.
NOW, THEREFORE, in
consideration of the covenants and agreements contained herein, and
for other good and valuable consideration the receipt and
sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
1.
Termination of Purchase Agreement . Laserscope, the Griffin
Trust, Mr. Griffin, and Mr. Barr agree that all of their
respective obligations under the Purchase Agreement are hereby
terminated and none of the parties hereto shall have any obligation
whatsoever to any
other party
under the Purchase Agreement. In furtherance of, and without
limiting, the foregoing: (a) Section 1.3 of the Purchase
Agreement is hereby terminated and the Stockholders shall have no
right to receive Earnout Amounts thereunder,
(b) Section 6 of the Purchase Agreement is hereby
terminated and none of the parties will have any obligations or be
subject to any restrictions thereunder; and (c) Section 8
of the Purchase Agreement is hereby terminated and none of the
parties will have any rights to indemnification or be subject to
indemnification obligations thereunder.
2.
Termination of Griffin Employment . The parties agree
that Mr. Griffin’s employment with the Company and the
Griffin Employment Agreement shall terminate effective as of the
date hereof, and neither the Company nor Mr. Griffin shall
have any obligations under the Griffin Employment Agreement, except
that Griffin’s obligations under Section 7
(Non-Solicitation) and Section 8 (Non-Competition) shall
remain in full force and effect, as modified herein. AMS,
Laserscope and the Company acknowledge that Griffin’s
obligations under Section 8 do not apply to
Mr. Griffin’s activities in the field of analytical
chemistry and that the field of analytical chemistry specifically
excludes all therapeutic medical applications. Section 7
(Non-Solicitation) of the Griffin Employment Agreement is hereby
amended to the extent necessary to permit Mr. Griffin to sell
analytical chemistry products to the Company’s customers,
provided that Mr. Griffin shall not be permitted to sell
analytical products that compete with the Company’s current
products to existing customers for a period of one year from the
date hereof. Mr. Griffin represents and warrants to AMS,
Laserscope and the Company that he has complied and will comply
with all of his obligations under Section 5 (Inventions) and
Section 6 (Company Property; Returning Company Documents) of
the Confidential Information and Assignment Agreement, dated
April 30, 2006, between the Company and Mr. Griffin, and,
upon execution of this Termination Agreement, Mr. Griffin will
execute the Termination Certification attached to the Confidential
Information and Assignment Agreement and the Employment Release
attached hereto as Exhibit C. Upon execution of this
Termination Agreement, the Company and Mr. Griffin shall enter
into the Consulting Agreement attached as Exhibit A and the
Patent License Agreement attached as Exhibit B. The parties
hereto agree that in order to enable Mr. Griffin to pursue
activities in the field of analytical chemistry subsequent to the
date hereof, Mr. Griffin’s obligations under such
Confidential Information Assignment Agreement shall not apply to
the use and disclosure of information retained in the unaided
memory of Mr. Griffin that he has not deliberately memorized
for the purpose of subsequently using or disclosing
(“Residual Information”); provided that the use and
disclosure of Residual Information by Mr. Griffin shall remain
subject to Section 8 (Non-Competition) of the Griffin
Employment Agreement. In addition, the parties hereto acknowledge
and agreed that Mr. Griffin’s Relationship (as defined in the
Confidential Information Assignment Agreement) is terminated as of
the date hereof and therefore his obligations with regards such
matters as assignment of inventions conceived subsequent to the
date hereof shall be governed pursuant to the terms of his
Consulting Agreement.
3.
Termination of Barr Employment . The parties confirm
that Mr. Barr’s employment with the Company and the Barr
Employment Agreement shall terminate effective as of the date
hereof, and neither the Company nor Mr. Barr shall have any
obligations under the Barr Employment Agreement, except that
Barr’s obligations under Section 6 (Non-Solicitation)
and Section 7 (Non-Competition) shall remain in full force and
effect, provided Barr’s obligations under Section 7
(Non-Competition) shall not apply to Mr. Barr’s
activities in the
2
field of
analytical chemistry. Mr. Barr acknowledges that he has been
paid salary through August 4, 2006 and that he is not entitled
to any additional salary or other compensation. The parties
acknowledge that the field of analytical chemistry specifically
excludes all interventional medical applications. Section 6
(Non-Solicitation) of the Barr Employment Agreement is hereby
amended to the extent necessary to permit Mr. Barr to sell
analytical chemistry products to the Company’s customers,
provided that Mr. Barr shall not be permitted to sell
analytical products that compete with the Company’s current
products to existing customers for a period of one year from the
date hereof. Mr. Barr represents and warrants to AMS,
Laserscope and the Company that he has complied and will comply
with all of his obligations under Section 5 (Inventions) and
Section 6 (Company Property; Returning Company Documents) of
the Confidential Information and Assignment Agreement, dated
April 30, 2006, between the Company and Mr. Barr, and,
upon execution of this Termination Agreement, Mr. Barr will
execute the Termination Certification attached to the Confidential
Information and Assignment Agreement and the Employment Release
attached hereto as Exhibit D. The parties hereto agree that in
order to enable Mr. Barr to pursue activities in the field of
analytical chemistry subsequent to the date hereof,
Mr. Barr’s obligations under such Confidential
Information Assignment Agreement shall not apply to the use and
disclosure of (“Residual Information”); provided that
the use and disclosure of Residual Information by Mr. Barr
shall remain subject to Section 7 (Non-Competition) of the
Barr Employment Agreement.
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(a)
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On
a date between January 8, 2007 and January 12, 2007 and
provided that neither Barr nor Griffin have rescinded the
Employment Releases attached hereto as Exhibits C and D, AMS will
issue to: (i) Mr. Barr unlegended, freely tradeable,
registered shares of AMS common stock with an Initial Market Value
(as defined below) of Two Million Four Hundred Thirty-Three
Thousand Three Hundred and Thirty-Three Dollars ($2,433,333.00);
and (ii) to Mr. Griffin registered shares of AMS common
stock with an Initial Market Value of Four Million Eight Hundred
Sixty-Six Thousand Six Hundred and Sixty-Six Dollars ($4,866,666).
The issuance and sale of AMS common stock will be registered under
the Securities Act of 1933, as amended, pursuant to AMS’
registration statement on Form S-3, filed and effective on
June&nbs
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