Technology Development & License Agreement

EXHIBIT 10.46


TECHNOLOGY DEVELOPMENT AND LICENSE AGREEMENT


This Technology Development and License Agreement ("Agreement"), is made and entered into as of October 23, 1999 (the "Effective Date"), by and between LASERSIGHT TECHNOLOGIES, INC., a Delaware corporation ("LaserSight") and QUADRIVIUM, L.L.C., an Arizona limited liability company ("Quadrivium").


WHEREAS, Quadrivium is developing proprietary technology for a corneal reshaping procedure that achieves a refractive correction utilizing low levels of infrared energy, such procedure is commonly referred to as photothermal keratoplasty ("PTK");


WHEREAS, Quadrivium is the owner of the entire, right, title and interest in and to certain U.S. letters patent, foreign patents and patent applications, as identified on Schedule A attached hereto and made a part hereof, pertaining to PTK (collectively, the "Licensed Patents");


WHEREAS, Quadrivium has certain know-how and confidential technical and proprietary information directed to the Licensed Patents and PTK, as identified on Schedule B attached hereto and made a part hereof (collectively, the "PTK Technology");


WHEREAS, Quadrivium and LaserSight desire to enter into certain agreements relating to the development, enhancement and refinement of the PTK Technology;


WHEREAS, LaserSight desires to acquire a world-wide, exclusive license to exploit the PTK Technology and the Licensed Patents in the ophthalmic field (collectively, the "Licensed Technology"), in accordance with the terms and conditions provided herein;


WHEREAS, Quadrivium is willing to grant such a license to LaserSight in accordance with the terms and conditions provided herein;


NOW, THEREFORE, in consideration of the mutual promises and valuable consideration set forth herein, the parties agree as follows:


1. Term. The term of this Agreement (the "Term") shall commence and be effective as of the Effective Date and shall continue thereafter until the date on which the last of the Licensed Patents expires, unless sooner terminated pursuant to the terms of this Agreement.


2. Development of the PTK Technology.


2.1 Technical Feasibility Demonstration ("Phase I").
Commencing on the Effective Date and continuing immediately thereafter
for a period of 120 days (the "Phase I Determination Period"),
Quadrivium, Edward Yavitz, M.D. ("Yavitz") and Michael Berry, Ph.D.
("Berry") shall continue and complete their research and development of
the Licensed Technology which shall include, without limitation, the
following activities:


(i) the manufacture of one or more prototype PTK systems;


(ii) performing animal eye experiments (both in vitro
and in vivo) together with pilot human eye experiments in at
least two sets of pre-clinical studies; and


(iii) the development of protocols and treatment
algorithms to determine dose/response behavior and to optimize
treatment parameters for correction of hyperopia and
presbyopia.


At the conclusion of the Phase I Determination Period,
LaserSight shall determine, in its sole discretion, whether the
Licensed Technology is capable of producing a commercially viable PTK
system. If LaserSight determines that the Licensed Technology is
capable of producing a commercially viable PTK system, the parties
shall proceed to Phase II (as described in Section 2.2), otherwise this
Agreement shall terminate in accordance with Section 6. The date on
which such determination is made by LaserSight shall be referred to
herein as the "Phase I Determination Date." Notwithstanding the
foregoing, LaserSight, in its sole discretion, shall have the option to
extend the Phase I Determination Period for an additional period not to
exceed 90 days to continue the Phase I development activities.


2.2 Additional Clinical Studies and Commercialization ("Phase
II"). Unless this Agreement is otherwise terminated in accordance with
Section 6, commencing on the Phase I Determination Date and continuing
thereafter until the Phase II Completion Date (as defined herein),
LaserSight, with assistance from Quadrivium, Yavitz and Berry (which
Quadrivium, Yavitz and Berry shall provide when reasonably requested by
LaserSight), shall conduct clinical studies of the PTK system in
Germany, Canada, Japan and other foreign countries that are reasonably
designated by LaserSight after consultation with Quadrivium.


The Phase II clinical studies shall be performed for the
purposes of (i) testing and refining the clinical protocols and
treatment algorithms on that number of international patients that is
established by LaserSight after consultation with Quadrivium, and (ii)
capturing necessary post-treatment follow-up data. The Phase II
clinical studies shall be conducted in accordance with the clinical
protocols developed during the Phase I development activities and such
other protocols which may be approved in writing by LaserSight.


Upon the completion of the Phase II clinical studies,
LaserSight may pursue regulatory approval for selling a PTK system in
such countries as LaserSight reasonably determines, and Quadrivium
shall assist LaserSight in any reasonable manner necessary for
LaserSight to receive such approval or approvals. The date on which
LaserSight, or its designee, commences commercial shipments of the PTK
system shall be referred to herein as the "Phase II Completion Date."
If upon completion of the Phase II clinical studies, LaserSight
determines, in its sole discretion, that the Licensed Technology is not
capable of producing a commercially viable PTK system, this Agreement
shall terminate in accordance with Section 6.


It is anticipated that if LaserSight commences commercial
shipments of a PTK system outside of the United States, then LaserSight
will pursue regulatory approval for a PTK system within the United
States. When requested by LaserSight, Quadrivium shall assist in any
reasonable manner necessary for LaserSight to receive such approval in
the United States.


2.3 PTK Technology Development Cost and Budget. Prior to the
expiration of the 30-day period immediately following the Effective
Date, Quadrivium shall present to LaserSight, for LaserSight's
approval, a detailed budget (the "Technology Development Budget") which
itemizes the resources to be expended during the Phase I and Phase II
clinical development activities and sets forth a timeline during which
such resources shall be expended. No material changes shall be made to
the Technology Development Budget without the prior written approval of
LaserSight and Quadrivium.


On a monthly basis during the Phase I and Phase II development
periods, as applicable, Quadrivium will submit a written notice to
LaserSight (each an "Advance Notice") that sets forth an itemized list
of expenses that will be incurred during the next month together with a
brief description of the anticipated timing and purposes of such
expenditures. Provided that such expenditures are reflected in the
Technology Development Budget and the advance limits described below
have not been exceeded, LaserSight shall pay to Quadrivium the amounts
requested in the Advance Notice within 15 business days of LaserSight's
receipt thereof. Quadrivium agrees to use any such payments made by
LaserSight for the purposes described in the relevant Advance Notice.


Notwithstanding anything set forth in this Agreement to the
contrary, in no event shall LaserSight be required to make advances to
Quadrivium which in the aggregate exceed (i) $300,000 for all costs and
expenses associated with the Phase I development activities, and (ii)
$2,000,000 for all costs and expenses associated with the Phase II
development activities.


Within 30 days after the end of each of LaserSight's fiscal
quarters during the Phase I and Phase II, if applicable, development
period, Quadrivium will provide LaserSight with an itemized statement
(the "Technology Development Reconciliation") setting forth the total
amounts LaserSight advanced pursuant to Advance Notices delivered
during the prior fiscal quarter in connection with the Phase I
development activities or Phase II development activities, as the case
may be, and a description of how such advances were utilized, together
with such other supporting documentation as may be reasonably requested
by LaserSight. Unless LaserSight disputes the amount reflected in the
Technology Development Reconciliation within 15 business days after
LaserSight's receipt thereof, all amounts reflected shall be deemed to
have been expended in accordance with the Technology Development
Budget. If it is determined that Quadrivium has made expenditures not
in accordance with the Technology Development Budget, Quadrivium shall
be required to reimburse LaserSight for any such amounts. Any dispute
arising in connection with any quarterly Technology Development


Reconciliation shall be resolved in accordance with the dispute
resolution procedures described in Section 4(b) of this Agreement.


3. Grant of License.


(a) Quadrivium hereby grants to LaserSight and its Affiliated
Companies (as defined herein) during the Term a world-wide, exclusive
right and license to exploit the Licensed Technology in the ophthalmic
field. As used herein, the term Licensed Technology shall include those
patents and patent applications listed on Schedule A, and any reissues,
reexaminations, divisionals, continuations, and continuations-in-part
thereof and any foreign counterparts thereof and all of the PTK
Technology identified on Schedule B from time to time. If subsequent to
the Effective Date, any of Quadrivium, or its members, officers, agents
or affiliates is issued a new patent or receives a license for a new
patent that relates to PTK Technology (other than the Licensed
Patents), Quadrivium shall notify LaserSight in writing of such patent.
For a period of 90 days from such notification, LaserSight shall have
the right to notify Quadrivium in writing that it intends to add such
patent to the list of Licensed Patents on Schedule A hereto. If
LaserSight elects to add such patent to the list of Licensed Patents,
the patent will be included in the license granted under this Agreement
without any additional compensation being due. Any such added patents
shall be deemed to be Licensed Patents for purposes of this Agreement.


(b) Upon the execution of this Agreement, Quadrivium shall
promptly disclose in writing and deliver to LaserSight all
information it possesses relating to the Licensed Technology.


(c) All past, present and future discoveries, inventions,
technology, know-how, enhancements, improvements, modifications or
other developments directly relating to the Licensed Technology and
PTK, whether or not patented or patentable in any country, shall be
promptly disclosed in writing to LaserSight by Quadrivium revising
Schedule B and providing a copy of such schedule to LaserSight, and
once such items are so disclosed, such items shall be deemed part of
the Licensed Technology owned by Quadrivium and licensed by LaserSight
under this Agreement. If LaserSight disagrees that items disclosed in
accordance with this Section 3(c) directly relate to PTK, then such
dispute shall be resolved in accordance with the dispute resolution
procedures described in Section 4(b) of this Agreement.


(d) Quadrivium further grants to LaserSight and any of its Affiliated
Companies the right to sublicense the Licensed Technology to Users (as
defined herein) under the exclusive license granted hereunder.


For purposes of this Agreement the term "Affiliated Companies" shall
mean any person or entity controlling, controlled by or under common
control with another person. For purposes of this definition, "control"
(including, with correlative meaning, the terms "controlled by" and
"under common control with"), as used with respect to any person or
entity, shall mean the possession, directly or indirectly, of the power
to direct and cause the direction of the management and policies of


such person or entity, whether through the ownership of voting
securities, by contract or otherwise. For purposes of this Agreement,
the term "Users" shall mean any party which utilizes any PTK Apparatus
(as defined herein).


4. Consideration.


(a) LaserSight Incorporated Common Stock. LaserSight shall issue and deliver 200,000 shares of LaserSight Incorporated common stock, $.001 par value per share ("Common Stock"), as follows:


(i) On the date this Agreement is signed by each of
the parties hereto, LaserSight shall send its transfer agent an
irrevocable letter of direction to issue two stock certificates each
representing 100,000 shares of Common Stock in the name of Quadrivium.
The certificates representing the shares of Common Stock issued in
accordance with this Section 4(a) (collectively, the "Quadrivium
Shares") shall be delivered to and held in escrow by LaserSight
Incorporated. The parties acknowledge and agree that during the period
the Quadrivium Shares, or any part thereof, are being held in escrow,
Quadrivium is entitled to (A) exercise any and all voting and other
consensual rights pertaining to the Quadrivium Shares or any part
thereof, and (B) receive and retain any and all dividends and other
distributions paid in respect of the Quadrivium Shares. The Quadrivium
Shares shall be released from escrow upon the occurrence of the events
described in Section 4(a)(ii) and (iii) below. The issuance of the
Quadrivium Shares shall be contingent on and subject to LaserSight's
receipt from Quadrivium and Yavitz and Berry, as applicable, of (A)
stock powers duly executed by Quadrivium in blank, in form and
substance satisfactory to LaserSight (such stock powers will be held in
escrow by LaserSight Incorporated), (B) an Investors Certificate, the
form of which is attached hereto as Exhibit 1, and (C) a fully executed
Assignment of TradeMark Option Agreement whereby Quadrivium would grant
to LaserSight an option, during the 24-month period immediately
following the Effective Date, to acquire all right, title and interest
in and to the trademarks "The Best Value in Sight" and "NIR Vision
Correction", the form of which is attached hereto as Exhibit 2.


(ii) If (A) on the Phase I Determination Date LaserSight
determines, in its sole discretion, that the Licensed Technology is
capable of producing a commercially viable PTK system, or (B) on or
before the Phase I Determination Date Quadrivium exercises its right to
terminate this Agreement in accordance with Section 6.1(a), (c) or (f)
of this Agreement (in which case this Agreement shall terminate in
accordance with Section 6 hereof), LaserSight Incorporated, within five
business days of such determination or notice of such termination, as
applicable, shall release (X) 100,000 of the Quadrivium Shares to
Quadrivium if such release was triggered by events described in Section
4(a)(ii)(A) hereof, or (Y) all of the Quadrivium Shares if such release
was triggered by events described in Section 4(a)(ii)(B) above.


Alternatively, if (A) on the Phase I Determination Date
LaserSight determines, in its sole discretion, that the Licensed
Technology is not capable of producing a commercially viable PTK
system, or (B) on or before the Phase I Determination Date LaserSight


exercises its right to terminate this Agreement in accordance with
Section 6.1(a), (d) or (f) of this Agreement, this Agreemen ...