CONSENT AND AGREEMENT
This Consent and Agreement (this "Agreement") is entered into as of the
1st day of April, 2000, by the undersigned shareholder ("Equity Holder") of
Horizon Vision Centers, Inc., a Nevada corporation (the "Existing Center"), for
the benefit of the Existing Center, Horizon Vision Centers, L.L.C., a Delaware
limited liability company (the "New Center"), Prime RVC, Inc., a Delaware
corporation ("Prime RVC") and the parent companies and affiliates of each of the
Existing Center, the New Center and Prime RVC. As used in this Agreement,
"Equity Holder" shall, in the case of a shareholder of the Existing Center that
is not an individual physician, refer also to the individual physician
affiliated with such shareholder of the Existing Center, both of whom are
parties to this Agreement.
Preliminary Statements
Equity Holder desires to acknowledge and consent to the assignment by
Prime BDR to Prime RVC of any and all rights that Prime BDR may have pursuant to
all contracts or agreements executed by Equity Holder in connection with Equity
Holder's prior sale of stock of the Existing Center to Prime BDR, including,
without limitation, the related stock purchase agreement, assignment and
security agreement, and financing statement, as applicable (collectively, the
"Acquisition Documents").
Equity Holder desires to acknowledge and consent, in its respective
capacities as a shareholder, member and (as applicable) officer of the Existing
Center and the New Center, to the assignment by the Existing Center to the New
Center of certain assets and the assumption by the New Center of certain
obligations related to those assets.
The shareholders of the Existing Center, including Equity Holder, have
determined that it is in their best interests that they, together with Prime
RVC, organize and own the New Center for the purpose of operating new vision
centers that will provide refractive surgery and related services in the
Northern and Central California area.
In order to operate the New Center, the parties to this Agreement deem
it necessary to amend that certain Stock Purchase Agreement, dated effective as
of September 1, 1999, among Equity Holder, Prime/BDR Acquisition, L.L.C., a
Delaware limited liability company ("Prime BDR") and the Existing Center (the
"Stock Purchase Agreement"), to allow Equity Holder and other physicians to use
the Refractive Surgery Services of the New Center.
Statement of Agreement
NOW, THEREFORE, in consideration of the premises and mutual covenants
contained herein and for other good, valuable and binding consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto,
intending to be legally bound hereby, agree as follows:
Section 1. [This Section intentionally left blank]
Section 2. Amendments to Stock Purchase Agreement. The parties to
this Agreement hereby agree to amend Section 8.2(a) of the Stock
Purchase Agreement to read in its entirety as follows:
(a) Except through the Company, engage in or provide any services
that are provided by the Company, directly or indirectly, anywhere
within a two hundred (200) mile radius of any center or facility at
any time operated by the Company or any of the Company's affiliates,
including, without limitation, any services related to, (i) the
operating of laser refractive surgical centers, (ii) the manufacture,
maintenance, refurbishing, repair, sale, or leasing of any equipment
related to or necessary for the operating of laser refractive surgical
centers, or (iii) providing any management services, training or
consulting services related to any of the activities described in (i)
or (ii);
Section 3. Consent to Assignment. Notwithstanding any provisions of the
Acquisition Documents to the contrary, Equity Holder hereby consents, in its
respective capacities as a shareholder, member and (as applicable) officer of
the Existing Center and the New Center, to:
(a) the assignment by Prime BDR to Prime RVC of the
Acquisition Documents, and any and all rights that Prime BDR might have arising
under or related to the Acquisition Documents;
(b) the New Center's execution and delivery of the
Non-Competition Agreement attached as Exhibit A to this Agreement;
(c) the Existing Center's and New Center's execution, delivery
and performance of the Assignment and Assumption Agreement attached as Exhibit B
to this Agreement.
Equity Holder hereby ratifies any action taken by the Existing Center
or the New Center prior to the date of this Agreement to the extent such action
would have been properly authorized pursuant to this Agreement. Equity Holder
hereby agrees to take such other actions, including the execution and delivery
of such other documents or instruments, as may reasonably be requested by
another party to this Agreement in order to fully carry out the intent of the
provisions of this Agreement.
Section 4. Effect on Existing Agreements. This Agreement is hereby
incorporated into the Exclusive Use Agreement and the Stock Purchase Agreement
by reference. Other than as provided in this Agreement, neither the Exclusive
Use Agreement nor the Stock Purchase Agreement has been modified or amended and
each is in full force and effect. Equity Holder hereby affirms that it is or
remains a party to the Exclusive Use Agreement and the Stock Purchase Agreement
(each as amended by this Agreement) after the execution of this Agreement. This
Agreement may be executed in a number of identical counterparts which, taken
together, shall constitute collectively one and the same agreement.
[Signature page to follow]
S-1
043838.0009 AUSTIN 189946 v1
SIGNATURE PAGE TO
CONSENT AND AGREEMENT
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the day and year first above written.
EQUITY HOLDER:
Signature:
▇▇▇▇▇ ▇. ▇▇▇▇▇ III
Signature:
▇▇▇▇ ▇. ▇▇▇▇▇
EXISTING CENTER: Horizon Vision Centers, Inc.
▇▇▇▇▇ ▇▇▇▇▇▇, Treasurer
NEW CENTER: Horizon Vision Centers, L.L.C.
▇▇▇▇▇ ▇▇▇▇▇▇, Treasurer
PRIME BDR: Prime/BDR Acquisition, L.L.C.
▇▇▇▇▇ ▇▇▇▇▇▇, Treasurer
PRIME RVC: Prime RVC, Inc.
▇▇▇▇▇ ▇▇▇▇▇▇, Treasurer