EXHIBIT 99.8
STANDSTILL AGREEMENT
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This Standstill Agreement (the "Agreement") is made as of June 12, 1998
(the "Effective Date") between LaserSight Incorporated, a Delaware corporation
(the "Company"), and the purchasers (collectively, the "Purchasers" and each
individually, a "Purchaser") named on the execution pages hereof.
WHEREAS, simultaneously with the delivery of this Agreement, the
Purchasers are, collectively, purchasing 2,000,000 shares of the Company's
Series D Convertible Participating Preferred Stock (the "Series D Preferred
Stock") pursuant to the terms of a Securities Purchase Agreement, dated June 12,
1998, between the Purchasers and the Company (the "Purchase Agreement");
WHEREAS, the parties hereto wish to set forth their agreements regarding
future purchases by the Purchasers and their affiliates of the Company's voting
securities;
NOW THEREFORE, in consideration of the mutual covenants and promises
contained herein, the parties hereto agree as follows:
1. Standstill Provisions. (a) Each of the Purchasers acknowledge that
each of their respective execution and delivery of this Agreement is a condition
precedent to the Company agreeing to issue the Series D Preferred Stock and that
none of the Purchasers will, and each Purchaser will direct its affiliates,
directors, officers, employees and agents not to, directly or indirectly, unless
in any such case specifically permitted in writing to do so by the Board of
Directors of the Company:
(i) other than pursuant to the terms of the Purchase Agreement
and other than the Series D Preferred Stock, purchase, acquire or own,
or offer or agree to purchase, acquire or own, directly or indirectly,
when aggregated with the other Purchasers, in excess of 15% of the
voting securities or direct or indirect rights (pursuant to an exchange,
conversion, pledge or otherwise) or options to acquire, when aggregated
with the other Purchasers, in excess of 15% of the voting securities of
the Company; provided that the acquisition and owning of voting
securities as a result of any of the following will not be deemed a
violation of this Agreement: (A) any dividend or distribution on the
outstanding Series D Preferred Stock, (B) any subdivision of the
outstanding Series D Preferred Stock, or (C) any reclassification of the
Series D Preferred Stock;
(ii) other than pursuant to a prior written agreement with the
Company, acquire or affect the control of the Company or directly or
indirectly participate in or encourage the formation of any "group"
(within the meaning of Section 13(d)(3) of the Securities Exchange Act
of 1934) which owns or seeks to acquire ownership of voting securities
of the Company, or to acquire or affect control of the Company;
(iii) other than pursuant to the terms of the Purchase Agreement,
otherwise act, directly or indirectly, alone or in concert with others,
to seek to control or to influence in any manner the management, board
of directors, policies or affairs of the Company, or propose or seek to
effect or negotiate with or provide financial assistance (by loan,
capital contribution or otherwise) or information to any party with
respect to any form of business combination transaction (including,
without limitation, a merger, consolidation or acquisition or
disposition of significant assets of the Company or any other entity)
with the Company or any affiliate thereof or any restructuring,
recapitalization or similar transaction with respect to the Company or
any affiliate thereof; or
(iv) instigate, encourage, assist or render advice to or make any
recommendation or proposal to any person or other entity to engage in
any of the actions covered by clauses (i) through (iii) of this Section
1(a), or render advice with respect to voting securities of the Company.
(b) For purposes of this Agreement, the term "voting securities" shall
mean (i) any securities which are entitled to vote upon any matters, whether
such securities are entitled to vote on such matters in all events or only upon
the occurrence of a default or other contingencies, or (ii) any options,
warrants, rights or securities which by their terms may be convertible into or
exchangeable for any security described in clause (i) of this Section 1(b).
2. Representations and Warranties. Each of the Purchasers represents and
warrants to the Company, and the Company represents and warrants to the
Purchasers:
(a) such party has the full legal right, power and authority to
enter into and perform this Agreement and the execution and delivery of
this Agreement by such party has been duly authorized by all necessary
corporate action;
(b) this Agreement is a valid and binding obligation of such
party, enforceable against such party in accordance with its terms,
except that such enforcement may be subject to (i) bankruptcy,
fraudulent conveyance, insolvency, reorganization, moratorium or other
similar laws now or hereafter in effect relating to creditors' rights
generally and (ii) general principles of equity (regardless of whether
such enforcement is considered in a proceeding in equity or at law); and
(c) neither the execution, delivery or performance of this
Agreement by such party conflicts with or constitutes a violation of or
default under such party's certificate of incorporation or by-laws, any
statute, law, regulation, order or decree applicable to such party, or
any contract, commitment, agreement, arrangement or restriction of any
kind to which such party is a party or by which such party is bound.
3. Notices. Any notice herein required or permitted to be given shall be
in writing and may be personally served or delivered by nationally-recognized
overnight courier or by facsimile-machine confirmed telecopy, and shall be
deemed delivered at the time and date of receipt (which shall include telephone
line facsimile transmission). Each party shall provide notice to the other party
of any change in address. The addresses for such communications shall be:
If to the Company:
LaserSight Incorporated
00000 Xxxxxxx Xxxxx
Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Telecopy: (000) 000-0000
Attention: Chief Financial Officer
After June 30, 1998:
LaserSight Incorporated
0000 Xxxxxxxxxx Xxxxxxxxx
Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Telecopy: (000) 000-0000
Attention: Chief Financial Officer
with a copy to:
Xxxxxxxxxxxx Xxxx & Xxxxxxxxx
Xxx Xxxxxxxxxxxx Xxxxxx
Xxxxx 0000
Xx. Xxxxx, Xxxxxxxx 00000
Telecopy: (000) 000-0000
Attention: Xxxx X. Xxxxxxxxx
If to Purchaser:
c/o Dawson Samberg Capital Management, Inc.
000 Xxxxxx Xxxxxx, X.X. Xxx 000
Xxxxxxxxx, Xxxxxxxxxxx 00000
Telecopy: (000) 000-0000
Attention: Xxxxxx Xxxxxx
with a copy to:
Fried, Frank, Harris, Xxxxxxx & Xxxxxxxx
Xxx Xxx Xxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Telecopy: (000) 000-0000
Attention: Xxxxx Xxxxx
4. Agreement Term. This Agreement shall terminate on the date which is
the first to occur of (i) sixty (60) days after the Effective Date, or (ii) the
date on which the Company's Board of Directors adopts a stockholder's rights
plan.
5. No Waiver. No failure or delay by any party hereto in exercising any
right, power or privilege hereunder shall operate as a waiver thereof nor shall
any single or partial exercise thereof preclude any other or further exercise of
any right, power or privilege.
6. Remedies. Each party hereto acknowledges that money damages would be
an inadequate remedy for any breach of this Agreement and that the Company (in
the case of a breach by any of the Purchasers) or the Purchasers (in the case of
a breach by the Company) shall be entitled to specific performance and
injunctive or other equitable relief as a remedy for any such breach. Each party
hereto waives any requirement for the securing or posting of any bond in
connection with any such remedy. No party hereto shall take any action to impede
the other party from seeking to enforce any such equitable remedy. Such remedy
shall not be exclusive, but shall be in addition to all other remedies available
at law or equity.
7. Governing Law. This Agreement shall be governed by and construed in
accordance with the internal laws of the State of Delaware, without giving
effect to the principles of conflict of laws thereof.
8. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto were upon one instrument.
9. Headings. The descriptive headings of the sections of this Agreement
are solely for the convenience of the parties hereto and shall not affect the
meaning or construction of any of the provisions of this Agreement.
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement
as of the date first above written.
LASERSIGHT INCORPORATED PEQUOT PRIVATE EQUITY FUND, L.P.
By: /s/ Xxxxxxx X. Xxxxxx By: Dawson Samberg Capital Management, Inc.
------------------------- Investment Manager
Xxxxxxx X. Xxxxxx
President and CEO
By: /s/ Xxxxx Xxxxxx
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Name: Xxxxx Xxxxxx
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Title: CFO
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PEQUOT SCOUT FUND, L.P.
By: Dawson Samberg Capital Management, Inc,
Investment Manager
By: /s/ Xxxxx Xxxxxx
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Name: Xxxxx Xxxxxx
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Title: CFO
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PEQUOT OFFSHORE PRIVATE EQUITY FUND, INC.
By: /s/ Xxxxx Xxxxxx
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Name: Xxxxx Xxxxxx
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Title: CFO
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SIGNATURE PAGE TO STANDSTILL AGREEMENT
