EXHIBIT 99.2
SECURITIES PURCHASE AGREEMENT
This SECURITIES PURCHASE AGREEMENT ("Agreement") is entered into as of
August 15, 2002, by and between LaserSight Incorporated, a Delaware corporation
(the "Company"), with its headquarters located at 0000 Xxxxxxxxxx Xxxxxxxxx,
Xxxxx 000, Xxxxxx Xxxx, Xxxxxxx 00000, and New Industries Investment Consultants
(H.K.) Ltd., a Hong Kong corporation ("Purchaser"), with its headquarters
located in Hong Kong, with regard to the following:
RECITALS
A. The Company and Purchaser are executing and delivering this
Agreement in reliance upon the exemption from securities registration afforded
by the provisions of Section 4(2) of the Securities Act of 1933 (the "Securities
Act") and Regulation D ("Regulation D") of the Securities and Exchange
Commission (the "SEC") promulgated under the Securities Act.
B. Purchaser desires to purchase, upon the terms and conditions
stated in this Agreement, shares of the Company's Series H Convertible
Participating Preferred Stock (the "Series H Preferred Stock") that are
convertible into shares of the Company's common stock, $.001 par value per share
(the "Common Stock") pursuant to the terms and subject to the limitations and
conditions set forth in the Certificate of Designation, Preferences and Rights
of the Series H Convertible Participating Preferred Stock (the "Series H
Certificate of Designation") in the form attached hereto as Exhibit A. The
Series H Preferred Stock and the Series H Conversion Shares (as defined herein)
are collectively referred to herein as the "Securities."
C. Contemporaneously with the execution and delivery of this
Agreement, the parties hereto are executing and delivering a Registration Rights
Agreement in the form attached hereto as Exhibit B (the "Registration Rights
Agreement") pursuant to which the Company has agreed to provide certain
registration rights under the 1933 Act and the rules and regulations promulgated
thereunder, and applicable state securities laws.
AGREEMENTS
NOW, THEREFORE, in consideration of the foregoing recitals (which are
incorporated into and deemed a part of this Agreement), their respective
promises contained herein and other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, the Company and Purchaser
hereby agree as follows:
ARTICLE 1
PURCHASE AND SALE OF SERIES H PREFERRED STOCK
1.1 Purchase of Series H Preferred Stock. Subject to the terms
and conditions of this Agreement, on or before September 30, 2002 (the "Closing
Date"), the Company agrees to issue and sell to Purchaser, and Purchaser agrees
to purchase from the Company (the "Closing"), 9,280,647 shares of Series H
Preferred Stock. The per share purchase price of the Series H Preferred Stock
shall be approximately $0.2155 or an aggregate purchase price of $2,000,000 (the
"Purchase Price"). Pursuant to the terms and conditions of the Series H
Certificate of Designation, the 9,280,647 shares of Series H Preferred Stock
shall be convertible into 18,561,294 shares of Common Stock (the "Series H
Conversion Shares"). On the Closing Date the Company shall issue and deliver to
Purchaser a stock certificate representing the Series H Preferred Stock, duly
executed on behalf of the Company and registered in the name of Purchaser (the
"Series H Stock Certificate"). Delivery of the Series H Stock Certificate to
Purchaser shall be made against receipt by the Company of the Purchase Price at
the Closing.
The Closing shall take place on the Closing Date at 10:00 A.M., Eastern
Time, at the offices of Benchmark Global Capital, 100 Wall Street, Eighth Floor,
New York, New York, 10005, or at such other time and place as shall be agreed
upon by the parties.
1.2 Form of Payment. Upon satisfaction of the conditions
contained in Section 7.1, Purchaser shall pay the Purchase Price by wire
transfer to the account designated by the Company.
1.3 Transfer of Securities. The Securities shall, when issued,
be unregistered and therefore subject to the restrictions on sale, distribution
and transfer imposed under the Securities Act and under applicable securities
laws or blue sky laws of any state or foreign jurisdiction.
1.4 Registration of the Securities. The Series H Conversion
Shares shall have those registration rights as are set forth in the Registration
Rights Agreement.
ARTICLE 2
PURCHASER'S REPRESENTATIONS AND WARRANTIES
Purchaser represents and warrants to the Company as set forth in this
Article 2. Purchaser does not make any other representations or warranties,
express or implied, to the Company in connection with the transactions
contemplated hereby and any and all prior representations and warranties, if
any, which may have been made by Purchaser to the Company in connection with the
transactions contemplated hereby shall be deemed to have been merged in this
Agreement and any such prior representations and warranties, if any, shall not
survive the execution and delivery of this Agreement.
2.1 Investment Purpose. Purchaser is purchasing the Securities
for Purchaser's own account for investment only and not with a view toward or in
connection with the public sale or distribution thereof. Purchaser will not,
directly or indirectly, offer, sell, pledge or otherwise transfer the Securities
or any interest therein except pursuant to transactions that are exempt from the
registration requirements of the Securities Act and/or sales registered under
the Securities Act. Purchaser understands that it must bear the economic risk of
this investment indefinitely, unless the Securities are registered pursuant to
the Securities Act and any applicable securities laws or blue sky laws of any
state or foreign jurisdiction or an exemption from such registration is
available, and that the Company has no intention or obligation to register any
of the Securities other than as contemplated by Section 1.4 hereof and the
Registration Rights Agreement.
2.2 Accredited Investor Status. Purchaser represents and
warrants that it is an Accredited Investor (as that term is defined in Rule 501
promulgated by the SEC under the Securities Act), that it has such knowledge and
experience in business and financial matters as to be capable of evaluating the
merits and risks of the investment contemplated to be made hereunder, and that
it (i) was not formed or organized for the specific purpose of investing in the
Company; (ii) understands that such investment bears a high degree of risk and
could result in a total loss of its investment; and (iii) has sufficient
financial strength to hold the same as an investment and to bear the economic
risks of such investment (including possible loss of such investment) for an
indefinite period of time.
2.3 Reliance on Exemptions. Purchaser acknowledges that the
Securities being sold to it hereunder are being sold pursuant to a private
offering exemption under the Securities Act and are not being registered under
the Securities Act or under the securities laws or blue sky laws of any state or
foreign jurisdiction and understands that the Company is relying upon the truth
and accuracy of, and Purchaser's compliance with, the representations,
warranties, agreements, acknowledgments and understandings of Purchaser set
forth herein in order to determine the availability of such exemptions and the
eligibility of Purchaser to acquire the Securities.
2.4 Information. Purchaser has been furnished all materials
relating to the business, finances and operations of the Company and materials
relating to the offer and sale of the Securities which it has specifically
requested, including, without limitation, the Company's Annual Report on Form
10-K and 10-K/A for the year ended December 31, 2001; its Quarterly Report on
Form 10-Q for the period ended March 31, 2002; its Current Reports on Form 8-K
dated February 15 and April 16, 2002; the description of the Common Stock
contained in the Company's Form 8-A/A (Amendment No. 6) dated August 10, 2001;
the description of the Company's Series E Preferred Stock contained in the
Company's form 8-A filed with the SEC on July 7, 1998, as amended by Form 8-A/A
(Amendment No. 1) dated March 29, 1999, Form 8-A/A (Amendment No. 2) dated
February 7, 2000 and Form 8-A/A (Amendment No. 3) dated August 10, 2001; the
Company's Proxy Statement dated June 5, 2001 (such documents, including any
financial statements and related notes included in such documents, collectively
the "Furnished SEC Documents"). Purchaser and its advisors have been given the
opportunity to obtain information and to examine all documents referred to
herein and to ask questions of, and to receive answers from, the Company or any
person acting on its behalf concerning the Company and the terms and conditions
of this investment, and to obtain any additional information, to the extent the
Company possesses such information or could acquire it without unreasonable
effort or expense, to verify the accuracy of any information previously
furnished. All such questions have been answered to Purchaser's full
satisfaction, and all information and agreements, documents, records and books
pertaining to this investment which Purchaser has requested have been made
available to Purchaser or its advisors. Purchaser understands that its
investment in the Securities involves a high degree of risk. In making its
investment decision, Purchaser has not relied on any oral or written
representation, other than those contained in the Furnished SEC Documents, this
Agreement (including the schedules hereto) and the Registration Rights
Agreement, with respect to the Securities, the Company, its business or
prospects, or other matters. In making its decision to invest in the Company,
Purchaser has relied solely upon independent investigations made by Purchaser
and its advisors.
2.5 Governmental Review. Purchaser understands that no United States
federal or state agency or any other government or governmental agency has
passed upon or made any recommendation or endorsement of the Securities.
2.6 Transfer or Resale. Purchaser understands that (i) the
Securities have not been and are not being registered under the Securities Act
or under the securities laws or blue sky laws of any state or foreign
jurisdiction, and may not be offered, sold, pledged or otherwise transferred
unless subsequently registered thereunder or an exemption from such registration
is available, and neither the Company nor any other person is under any
obligation to register the Securities under the Securities Act or under the
securities laws or blue sky laws of any state or foreign jurisdiction or to
comply with the terms and conditions of any exemption thereunder (in each case,
other than pursuant to this Agreement or the Registration Rights Agreement),
(ii) any sale of the Securities made in reliance on Rule 144 under the
Securities Act, or a successor rule ("Rule 144"), may be made only in accordance
with the terms of Rule 144 and Article 5 hereof and further, if Rule 144 is not
applicable, any resale of the Securities without registration under the
Securities Act under circumstances in which the seller may be deemed to be an
underwriter (as that term is defined in the Securities Act) may require
compliance with some other exemption under the Securities Act or the rules and
regulations of the SEC thereunder, and (iii) the Securities are subject to the
repurchase restrictions described in the Series H Certificate of Designation.
2.7 Authorization. Purchaser represents and warrants that as of
the Closing Date the execution, delivery and performance of this Agreement and
the consummation of the transactions contemplated herein have been duly
authorized by it. The fulfillment of and compliance with the terms of this
Agreement will not (i) conflict with or result in a breach of the terms,
conditions or provisions of, (ii) constitute a default under, or (iii) result in
a violation of, breach of or default under (A) its charter or constituent
document, (B) any law, statute, rule or regulation to which it is subject, or
(C) any agreement, instrument, order, judgment or decree to which it is subject
or is a party or by which it is bound.
2.8 Binding Effect. Purchaser represents and warrants that this
Agreement constitutes its valid and binding obligation, enforceable in
accordance with its terms, except (i) as limited by bankruptcy, insolvency or
other laws affecting the enforcement of creditors' rights generally or by
equitable principles in any action (legal or equitable), (ii) that the
availability of equitable relief is subject to the discretion of the court
before which any proceeding thereof may be brought, and (iii) that the
enforceability of the indemnification provisions may be limited by applicable
securities laws or public policy.
ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company represents and warrants to Purchaser, except as disclosed
(including, in the case of financial statements, provided for) in the disclosure
schedules delivered herewith, as set forth in this Article 3. The Company does
not make any other representations or warranties, express or implied, to
Purchaser in connection with the transactions contemplated hereby and any and
all prior representations and warranties, if any, which may have been made by
the Company to Purchaser in connection with the transactions contemplated hereby
shall be deemed to have been merged in this Agreement and any such prior
representations and warranties, if any, shall not survive the execution and
delivery of this Agreement.
3.1 Organization and Qualification. Each of the Company and its
subsidiaries is a corporation duly organized and existing in good standing under
the laws of the jurisdiction in which it is incorporated, and has the requisite
corporate power to own its properties and to carry on its business as now being
conducted or are presently expected to be conducted during the Company's current
fiscal year. Each of the Company and its subsidiaries is duly qualified as a
foreign corporation to do business and is in good standing in every jurisdiction
where the failure so to qualify or be in good standing would have a Material
Adverse Effect. For purposes of this Agreement, "Material Adverse Effect" means
any material adverse effect on the business, operations, assets, properties,
liabilities, condition (financial or otherwise), the Common Stock price or
operating results of the Company and its subsidiaries, taken as a whole on a
consolidated basis, or on the transactions contemplated hereby.
3.2 Authorization; Enforcement.
(a) The Company has the requisite corporate power and
authority to enter into and perform this Agreement, and to issue, sell and
perform its obligations with respect to the Securities in accordance with the
terms hereof and thereof;
(b) the execution, delivery and performance of this
Agreement and the Registration Rights Agreement by the Company and the
consummation by it of the transactions contemplated hereby and thereby have been
duly authorized by all necessary corporate action and, except as set forth on
Schedule 3.2 hereof, no further consent or authorization of the Company, its
board of directors (the "Board"), or its stockholders or any other person, body
or agency is required with respect to any of the transactions contemplated
hereby (whether under rules of The NASDAQ Stock Market (the "NASDAQ"), the
National Association of Securities Dealers, Inc. or otherwise);
(c) this Agreement and the Registration Rights
Agreement have been, and the Series H Preferred Stock Certificate when issued
will have been, duly executed and delivered by the Company; and
(d) this Agreement and the Registration Rights
Agreement constitute legal, valid and binding obligations of the Company
enforceable against the Company in accordance with their respective terms,
except (i) to the extent that such validity or enforceability may be subject to
or affected by any bankruptcy, insolvency, reorganization, moratorium,
liquidation or similar laws relating to, or affecting generally the enforcement
thereof, creditors' rights or remedies of creditors generally, or by other
equitable principles of general application, (ii) that the availability of
equitable relief is subject to the discretion of the court before which any
proceeding thereof may be brought, and (iii) that the enforceability of
indemnification provisions may be limited by applicable securities laws or
public policy.
3.3 Capitalization. The capitalization of the Company as of the
date hereof, including the authorized capital stock, the number of shares issued
and outstanding, the number of shares reserved for issuance pursuant to the
Company's stock option plans, the number of shares reserved for issuance
pursuant to securities exercisable for, or convertible into or exchangeable for
any shares of Common Stock is set forth on Schedule 3.3. Except as disclosed in
Schedule 3.3, all of such shares of capital stock have been, or upon issuance in
accordance with the terms of the relevant security will be, validly issued,
fully paid and nonassessable. Except as disclosed in Schedule 3.3 or as
described in the Furnished SEC Documents, no shares of capital stock of the
Company (including the Securities) are subject to preemptive rights or any other
similar rights of the stockholders of the Company or any liens or encumbrances
imposed or suffered by the Company. Except as disclosed in Schedule 3.3, as of
the date of this Agreement, there are no outstanding options, warrants, scrip,
rights to subscribe for, calls or commitments of any character whatsoever
relating to, or securities or rights convertible into or exercisable or
exchangeable for, any shares of capital stock of the Company or any of its
subsidiaries, or contracts, commitments, understandings or arrangements by which
the Company or any of its subsidiaries is or may become bound to issue
additional shares of capital stock of the Company or any of its subsidiaries.
3.4 Issuance of Shares. As of the Closing the Series H Preferred
Stock will be duly authorized, validly issued, fully paid and non-assessable
with no personal liability attaching to the owners thereof, and free from all
taxes, liens, claims and encumbrances imposed or suffered by the Company and
except as disclosed in Schedule 3.3, will not be subject to preemptive rights or
other similar rights of stockholders of the Company. As of the Closing, the
Series H Conversion Shares will be duly and validly reserved for issuance and
upon Conversion of the Series H Preferred Stock in accordance with the terms
thereof the Series H Conversion Shares will be validly issued, fully paid and
non-assessable with no personal liability attaching to the owners thereof, and
free from all taxes, liens, claims and encumbrances imposed or suffered by the
Company and except as disclosed in Schedule 3.3, will not be subject to
preemptive rights or other similar rights of stockholders of the Company.
3.5 No Conflicts. Except as set forth on Schedule 3.5, the
execution, delivery and performance of this Agreement and the Registration
Rights Agreement by the Company, and the consummation by the Company of
transactions contemplated hereby and thereby (including, without limitation, the
issuance of the Securities) will not (i) result in a violation of the Company's
Certificate of Incorporation or By-laws, or (ii) conflict with, or constitute a
default (or an event which with notice or lapse of time or both would become a
default) under, result in any loss of benefit under, or give to others any
rights of termination, amendment, acceleration or cancellation of, any Material
Contract (as defined herein) to which the Company or any of its subsidiaries is
a party, or (iii) result in a violation of any law, rule, regulation, order,
judgment or decree (including federal and state securities laws and regulations)
applicable to the Company or any of its subsidiaries, or by which any property
or asset of the Company or any of its subsidiaries, is bound or affected, or
(iv) result in the creation or imposition of an Encumbrance (as defined herein)
upon the Company's properties or assets (except with respect to items (ii),
(iii) and (iv) of this Section 3.5 such possible conflicts, defaults,
terminations, amendments, accelerations, cancellations, violations and
Encumbrances as would not individually or in the aggregate, have a Material
Adverse Effect). Neither the Company nor any of its subsidiaries is in violation
of its Certificate of Incorporation or other organizational documents, and
neither the Company nor any of its subsidiaries, is in default (and no event has
occurred which has not been waived which, with notice or lapse of time or both,
would put the Company or any of its subsidiaries in default) under, nor has
there occurred any event giving others (with notice or lapse of time or both)
any rights of termination, amendment, acceleration or cancellation of, any
agreement, indenture or instrument to which the Company or any of its
subsidiaries is a party, except for possible violations, defaults or rights as
would not individually or in the aggregate, have a Material Adverse Effect. The
businesses of the Company and its subsidiaries are not being conducted in
violation of any law, ordinance or regulation of any governmental entity, except
for possible violations the sanctions for which either singly or in the
aggregate would not have a Material Adverse Effect. Except as set forth on
Schedule 3.5, or except (i) as may be required under the Securities Act in
connection with the performance of the Company's obligations pursuant to the
Registration Rights Agreement, (ii) for the filing of a Form D with the SEC,
(iii) for the filing of the Series H Certificate of Designation with the
Delaware Secretary of State, and (iv) compliance with the state securities laws
or blue sky laws of applicable jurisdictions, the Company is not required to
obtain any consent, authorization or order of, or make any filing or
registration with, any court or governmental agency or any regulatory or
self-regulatory agency in order for it to execute, deliver or perform any of its
obligations under this Agreement or to perform its obligations in accordance
with the terms hereof. Set forth on Schedule 3.5 is the current status of the
Common Stock's listing on the NASDAQ. Except as set forth on Schedule 3.5, the
Company is not in violation of the listing requirements of the NASDAQ and the
Company is not aware of any fact (including any proceedings pending or, to the
best of the Company's knowledge, contemplated) that could result in the Common
Stock being delisted from the NASDAQ.
3.6 SEC Documents. Except as disclosed in Schedule 3.6, since
December 31, 1998, the Company has timely filed all reports, schedules, forms,
statements and other documents required to be filed by it with the SEC pursuant
to the reporting requirements of the Securities Exchange Act of 1934 (the
"Exchange Act") (all of the foregoing filed prior to the date hereof and all
exhibits included therein and financial statements and schedules thereto and
documents incorporated by reference therein, being referred to herein as the
"SEC Documents"). The Company has delivered to Purchaser true and complete
copies of the Furnished SEC Documents, except for exhibits, schedules and
incorporated documents. Each of the SEC Documents as originally filed or as
amended complied in all material respects with the requirements of its
respective report or form and did not on the date of filing contain any untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading, and as of the date
hereof, there is no fact or facts not disclosed in the SEC Documents or
disclosed in writing to Purchaser which relate specifically to the Company which
individually or in the aggregate, may have a Material Adverse Effect. The
consolidated financial statements of the Company (including any related
schedules or notes thereto) included in the SEC Documents were prepared in
accordance with generally accepted accounting principles, consistently applied,
and the applicable rules and regulations of the SEC during the periods involved
(except (i) as may be otherwise indicated in such financial statements or the
notes thereto, or (ii) in the case of unaudited interim statements, to the
extent they do not include footnotes or are condensed or summary statements) and
present accurately and completely, in all material respects, the consolidated
financial position of the Company and its consolidated subsidiaries as of the
dates thereof and the consolidated results of their operations and cash flows
for the periods then ended (subject, in the case of unaudited statements, to
normal, year-end audit adjustments). To the extent required by the rules of the
SEC applicable thereto, the SEC Documents contain a complete and accurate list
of all material undischarged written or oral contracts, agreements, leases or
other instruments to which the Company or any subsidiary is a party or by which
the Company or any subsidiary is bound or to which any of the properties or
assets of the Company or any subsidiary is subject (each a "Material Contract").
Except as set forth in Schedule 3.6, none of the Company, its subsidiaries or,
to the best knowledge of the Company, any of the other parties thereto, is in
breach or violation of any Material Contract, which breach or violation would
have a Material Adverse Effect. To the best knowledge of the Company, no event,
occurrence or condition exists which, with the lapse of time, the giving of
notice, or both, would become a default by the Company or its subsidiaries
thereunder which would have a Material Adverse Effect. Except as set forth in
Schedule 3.6 or disclosed in writing to Purchaser, there are no liabilities or
obligations (whether accrued, absolute, contingent, unliquidated or otherwise,
whether due or to become due and regardless of when asserted), except (i)
liabilities and obligations in the respective amounts reserved for in the
Company's balance sheet or the footnotes thereto as of March 31, 2002 included
in the Furnished SEC Documents, (ii) liabilities and obligations incurred after
March 31, 2002 in the ordinary course of business consistent (in amount and
kind) with past practice (none of which is a liability resulting from breach of
contract, breach of warranty, tort, infringement, claim or lawsuit), (iii)
liabilities and obligations disclosed in the Furnished SEC Documents, and (iv)
liabilities and obligations which would not individually or in the aggregate,
have a Material Adverse Effect.
3.7 Absence of Certain Changes. Except as disclosed in Schedule
3.7 or in the Furnished SEC Documents, since December 31, 2001, the business of
the Company and its subsidiaries has been conducted in the ordinary course,
consistent with past practice and there has not been (a) any waiver or
cancellation of any valuable right of the Company or its subsidiaries, or the
cancellation of any material debt or claim held by the Company or its
subsidiaries, (b) any payment, discharge or satisfaction of any claim, liability
or obligation of the Company or its subsidiaries other than in the ordinary
course of business except where such payment, discharge or satisfaction would
not, individually or in the aggregate, have a Material Adverse Effect, (c) the
placement of any Encumbrance upon the assets of the Company or its subsidiaries
other than any Permitted Encumbrance (as defined herein), (d) any declaration or
payment of dividends on, or other distribution with respect to, or any direct or
indirect redemption or acquisition of, any securities of the Company, (e) any
issuance of any stock, bonds or other securities of the Company or its
subsidiaries which is not disclosed in Schedule 3.3 or the Furnished SEC
Documents, (f) any sale, assignment or transfer of any tangible or intangible
assets of the Company or its subsidiaries except in the ordinary course of
business, (g) any loan by the Company or its subsidiaries to any officer,
director, employee, consultant or shareholder of the Company or its subsidiaries
(other than advances to such persons in the ordinary course of business in
connection with travel and travel related expenses), (h) any damage, destruction
or loss (whether or not covered by insurance) materially and adversely affecting
the assets, property, condition (financial or otherwise), results of operations
or prospects of the Company or its subsidiaries, (i) any increase, direct or
indirect, in the compensation paid or payable to any officer or director of the
Company or its subsidiaries, other than in the ordinary course of business, to
any other employee, consultant or agent of the Company or its subsidiaries, (j)
any change in the accounting methods, practices or policies of the Company or
its subsidiaries, (k) to the Company's knowledge, any change in the laws or
regulations governing the Company or its subsidiaries, (l) any capital
expenditures or commitments therefor by the Company or its subsidiaries other
than in the ordinary course of business, (m) any amendment of the certificate of
incorporation, bylaws or other organizational documents of the Company or its
subsidiaries which is not disclosed in the Furnished SEC Documents, (n) any
material transaction entered into by the Company or its subsidiaries other than
in the ordinary course of business or any other material transactions entered
into by the Company or its subsidiaries whether or not in the ordinary course of
business which is not disclosed in the Furnished SEC Documents, or (o) any
agreement or commitment (contingent or otherwise) by the Company or its
subsidiaries to do any of the foregoing.
For purposes of this Agreement, "Permitted Encumbrance" shall mean (i)
Encumbrances for unpaid taxes that either (A) are not yet due and payable, or
(B) for which a reserve with respect to such obligation is established on the
books of the Company, (ii) the interests of lessors under operating leases and
purchase money liens of lessors under capital leases, (iii) Encumbrances arising
by operation of law in favor of warehousemen, landlords, carriers, mechanics,
materialmen, laborers, or other similar encumbrances in the ordinary course of
business of the Company, (iv) Encumbrances arising from deposits made in
connection with obtaining worker's compensation or other unemployment insurance,
(v) with respect to any real property, easements, rights of way, zoning and
similar covenants and restrictions, and similar Encumbrances and that do not
individually or in the aggregate materially impair the property of the Company,
(vi) Encumbrances resulting from any judgment or award that would not have a
Material Adverse Effect, (vii) other Encumbrances which arise in the ordinary
course of business and which individually and in the aggregate do not materially
impair the Company's use of such property or its ability to obtain financing by
using such asset as collateral, and (viii) the Encumbrances in favor of G.E.
Capital f/k/a Xxxxxx Healthcare Finance, Inc. ("Xxxxxx") pursuant to that
certain credit facility transaction between Xxxxxx and the Company (the "Credit
Facility").
3.8 Absence of Litigation. Except as disclosed in Schedule 3.8
or as disclosed in the Furnished SEC Documents, there is no civil, criminal or
administrative action, suit, proceeding, inquiry, claim, notice, hearing or
investigation at law or in equity (a "Litigation") before or by any court,
arbitrator or similar panel, public board, government agency, or self-regulatory
organization or body pending or, to the knowledge of the Company or any of its
subsidiaries, threatened against or affecting the Company, any of its
subsidiaries, or any of their respective assets (including Intangibles (as
defined herein)) or directors or officers in their capacities as such. There are
no facts known to the Company which, if known by a potential claimant or
governmental authority, could give rise to a claim or proceeding which, if
asserted or conducted with results unfavorable to the Company or any of its
subsidiaries, could reasonably be expected to have a Material Adverse Effect.
Except as set forth in Schedule 3.8, neither the Company nor its subsidiaries is
subject to any order, writ, injunction or decree of any court of any federal,
state, municipal or other domestic or foreign governmental department,
commission, board, bureau, agency or instrumentality which could have a Material
Adverse Effect.
3.9 Disclosure. Neither this Agreement, the SEC Documents nor
any certificate, instrument or written statement furnished or made to Purchaser
by or on behalf of the Company in connection with this Agreement or the
Registration Rights Agreement contains any untrue statement of a material fact
or omits to state a material fact necessary in order to make the statements
contained herein and therein not misleading as of the date such statements were
made.
3.10 S-3 Registration. The Company is currently eligible to
register the resale of the Securities by Purchaser pursuant to a registration
statement on Form S-3 under the Securities Act.
3.11 No General Solicitation. Neither the Company nor any person
acting for the Company has conducted any "general solicitation," as described in
Rule 502(c) under Regulation D, with respect to any of the Securities being
offered hereby.
3.12 No Integrated Offering. Neither the Company, nor any of its
Affiliates (as defined herein), nor any person acting on its or their behalf,
has directly or indirectly made any offers or sales of any security or solicited
any offers to buy any security under circumstances that would prevent the
parties hereto from consummating the transactions contemplated hereby pursuant
to an exemption from registration under the Securities Act pursuant to the
provisions of Regulation D. The transactions contemplated hereby are exempt from
the registration requirements of the Securities Act, assuming the accuracy of
the representations and warranties herein contained of Purchaser. For purposes
hereof, "Affiliate" shall mean any entity controlling, controlled by or under
common control with a designated person or entity; for the purposes of this
definition, "control" shall have the meaning presently specified for that word
in Rule 405 promulgated by the SEC under the Securities Act. With respect to any
entity which is a limited partnership, Affiliate shall also mean any general or
limited partner of such limited partnership, or any person or entity which is a
general partner in a general or limited partnership which is a general partner
of such limited partnership.
3.13 No Brokers. The Company has taken no action that would give
rise to any claim by any person for brokerage commissions, finder's fees or
similar payments by Purchaser relating to this Agreement or the transactions
contemplated hereby.
3.14 Intellectual Property. Each of the Company and its
subsidiaries owns or possesses adequate and enforceable rights to use all
material patents, patent applications, trademarks, trademark applications, trade
names, service marks, copyrights, copyright applications, licenses, know-how
(including trade secrets and other unpatented and/or unpatentable proprietary or
confidential information, systems or procedures) and other similar rights and
proprietary knowledge (collectively, "Intangibles") used or necessary for the
conduct of its business as now being conducted. Except as set forth on Schedule
3.14, to the Company's knowledge, neither the Company nor any subsidiary of the
Company infringes on or is in conflict with any right of any other person with
respect to any Intangibles nor is there any claim of infringement made by a
third party against or involving the Company or any of its subsidiaries, which
infringement, conflict or claim, individually or in the aggregate, could
reasonably be expected to result in an unfavorable decision, ruling or finding
which would have a Material Adverse Effect.
3.15 Employment Matters; ERISA Matters. The Company and its
subsidiaries are in compliance with all federal, state, local and foreign laws
and regulations respecting employment and employment practices, terms and
conditions of employment and wages and hours except where failure to be in
compliance would not have a Material Adverse Effect. There are no pending
investigations involving the Company or any of its subsidiaries by the U.S.
Department of Labor or any other governmental agency responsible for the
enforcement of such federal, state, local or foreign laws and regulations. There
is no unfair labor practice charge or complaint against the Company or any of
its subsidiaries pending before the National Labor Relations Board or any
strike, picketing, boycott, dispute, slowdown or stoppage pending or to the
Company's knowledge threatened against or involving the Company or any of its
subsidiaries. No collective bargaining agreement or modification thereof is
currently being negotiated by the Company or any of its subsidiaries. No
grievance or arbitration proceeding is pending under any expired or existing
collective bargaining agreements of the Company or any of its subsidiaries. No
material labor dispute with the employees of the Company or any of its
subsidiaries exists or, to the knowledge of the Company, is imminent. Except as
set forth on Schedule 3.15, the Company has no employee benefit plans subject to
the Employee Retirement Income Security Act of 1974, as amended.
3.16 Equity Investments; Subsidiaries. Set forth on Schedule 3.16
is a list of all of the Company's subsidiaries. Except as set forth on Schedule
3.16, the Company does not own, whether directly or indirectly, any capital
stock or other proprietary interest directly or indirectly, in any corporation,
association, trust, partnership, joint venture or other entity which is
currently involved in the Company's ordinary course of business.
3.17 Title to Assets and Properties; Insurance.
(a) The Company has good and marketable title, or a
valid leasehold interest in or contractual right to use, all of its assets and
properties, free and clear of any mortgages, judgments, claims liens, security
interests, pledges, escrows, charges or other encumbrances of any kind or
character whatsoever ("Encumbrances") except in each case for Permitted
Encumbrances and such defects in title and such other liens and Encumbrances
which do not individually or in the aggregate materially detract from the value
to the Company of the properties and assets of the Company and its subsidiaries
taken as a whole.
(b) The Company and its subsidiaries maintain insurance
(including D&O insurance) in such amounts (to the extent available in the public
market), including self-insurance, retainage and deductible arrangements, and of
such a character as is reasonable for companies engaged in the same or similar
business after giving due consideration to the financial condition of such
companies.
3.18 Compliance with Laws; Permits. Except as provided in
Schedule 3.18, the Company and its subsidiaries are in compliance, and have been
conducted in compliance with, all federal, state, local and foreign laws, rules,
ordinances, codes, consents, authorizations, registrations, regulations,
decrees, directives, judgments and orders applicable to it except where the
failure to comply would not individually or in the aggregate have a Material
Adverse Effect. The Company has all federal, state, local and foreign
governmental licenses, permits, qualifications and authorizations ("Permits")
necessary in the conduct of its business as currently conducted. All such
Permits are in full force and effect and no violations have been recorded in
respect of any such Permit; no proceeding is pending or, to the best knowledge
of the Company, threatened to revoke or limit any such Permit and no such Permit
will be suspended, cancelled or adversely modified as a result of the execution
and delivery of this Agreement or the Registration Rights Agreement and the
consummation of the transactions contemplated hereby or thereby, except where
failure to have such Permit would not individually or in the aggregate have a
Material Adverse Effect.
3.19 Taxes.
(a) For purposes of this Agreement, (i) "Taxes" shall
mean all taxes, assessments, charges, duties, fees, levies or other governmental
charges (including interest, penalties or additions associated therewith)
(including, without limitation, federal, state, city, county, local, foreign, or
other income, franchise, ad valorem, value added, excise, real or personal
property, asset, franchise taxes withheld, capital, withholding, real or
tangible property, employment, unemployment compensation, transfer, sales, use,
excise and all other taxes of any kind whatsoever imposed by the United States
or any state, city, county, country or foreign government or subdivision or
agency thereof, whether disputed or not, and (ii) "Transaction" means one or
more transactions, acts, events, or omissions of whatever nature.
(b) Except as set forth on Schedule 3.19, the Company
has filed on a timely basis all returns and reports, including all estimated
returns and reports of every kind and have timely given all notices, in respect
of Taxes required to be filed or given under applicable law within the
applicable statute of limitations period by any of them, or except where proper
action has been taken by the Company to extend the relevant filing deadline.
Such returns, reports and notices are complete and accurate in all material
respects. All Taxes shown on such returns or reports have been, and all Taxes
subsequently assessed with respect to the periods and/or Transactions to which
such returns or reports relate have been or will be, timely, and fully paid,
except for amounts which the Company is contesting in good faith. The provisions
in the financial statements (and the notes and schedules related thereto)
contained in the Furnished SEC Documents for Taxes currently payable and for
deferred Taxes are adequate in all material respects to provide for such Taxes
for which the Company and its Subsidiaries taken as a whole may be liable in
respect of periods or Transactions through the dates thereof.
(c) No fact or condition relating to any past or
present Transaction, except as set forth in the Company's disclosure schedules
delivered herewith, which, if known to any tax authority having jurisdiction,
would likely result in a successful challenge by such authority of the treatment
or omission of such factor or condition on any tax return, report or notice of
the Company or its subsidiaries, and no issue has arisen in any examination of
the Company by the IRS that, in either case, if raised with respect to any other
period not so examined would result in a proposed material deficiency for any
other period not so examined, if upheld. The Company and its subsidiaries have
made all payments or estimated Taxes required to be made under Section 6655 of
the Code and any comparable provisions of state, local or foreign law. Except as
set forth on Schedule 3.19, there is no pending nor, to the Company's knowledge,
threatened or contemplated action, audit, proceeding or investigation for the
assessment or collection of Taxes from the Company. There are no requests for
rulings, outstanding subpoenas or requests for information with respect to Taxes
of the Company, proposed reassessments of any property owned or leased by the
Company, or similar matters pending with respect to any taxing authority.
3.20 Environmental Matters. Except as listed in Schedule 3.20:
(a) There are, with respect to the Company and its
subsidiaries, or any predecessor of the foregoing, no present violations of
Environmental Law (as defined herein), any actions, activities, circumstances,
conditions, events, incidents, or contractual obligations which may give rise to
any liability of the Company pursuant to any Environmental Law and neither the
Company nor its subsidiaries has received any notice with respect to any of the
foregoing nor is any Litigation pending or threatened in connection with any of
the foregoing.
(b) To the knowledge of the Company and except in the
normal course of the Company's or its subsidiaries' business, (i) no Hazardous
Materials (as defined herein) are present on or about any real property
currently owned, leased or used by the Company or its subsidiaries, and (ii) no
Hazardous Materials were present on or about any real property previously owned,
leased or used by the Company or its subsidiaries during the period the property
was owned, leased or used by the Company or its subsidiaries.
(c) To the knowledge of the Company, no Hazardous
Materials have been released on or about, or where they may pose a threat of
migration to, any real property currently owned, leased or used by the Company
or its subsidiaries and no Hazardous Materials were released on or about any
real property previously owned, leased or used by the Company or its
subsidiaries during the period the property was owned, leased or used by the
Company or its subsidiaries, except as may be required in the normal course of
business and in material compliance with applicable Environmental Law.
(d) To the knowledge of the Company, no
asbestos-containing materials or PCBs are present on or about any property
currently owned, leased or used by the Company or its subsidiaries.
(e) To the knowledge of the Company, there are not now,
nor have there ever been, any underground storage tanks or similar facilities of
any kind on or under any real property currently or previously owned, leased or
used by the Company or its subsidiaries.
(f) For purposes of this Section 3.20, capitalized
terms used herein shall have the following meanings:
"Environmental Laws" shall mean, at any date, all provisions
of federal, state, local or foreign law (including applicable principles of
common and civil law), statutes, ordinances, rules, regulations, published
standards and directives that have the force and effect of laws, statutes,
regulations, permits, licenses, judgments, writs, injunctions, decrees and
orders enacted, promulgated or issued by any Public Authority, and all indemnity
agreements and other contractual obligations, as in effect at such date,
relating to (i) the protection of the environment, including the air, surface
and subsurface soils, surface waters, groundwaters and natural resources, and
(ii) occupational health and safety and exposure of persons to Hazardous
Materials. Environmental Laws shall include the Comprehensive Environmental
Response, Compensation and Liability Act 42 U.S.C. ss.ss.9601 et seq., and any
other laws imposing or creating liability with respect to Hazardous Materials.
"Environmental Liability" shall mean any liabilities,
obligations, costs, losses, payments or damages, including compensatory and
punitive damages, incurred (i) to contain, remove, clean up, assess, xxxxx or
otherwise remedy any actual or alleged release or threatened release of
Hazardous Materials, any actual or alleged contamination (by Hazardous
Materials) of air, surface or subsurface soil, groundwater or surface water, or
any personal injury or damage to natural resources or property resulting from
any such release or contamination, pursuant to the requirements of any
Environmental Law or in response to any claim by any Public Authority or other
third party under any Environmental Law; (ii) to modify facilities or processes
or take any other remedial action in response to any claim by any Public
Authority of non-compliance with any Environmental Law, (iii) as a result of the
imposition of any civil or criminal fine or penalty by any Public Authority for
the violation or alleged violation of any Environmental Law, or (iv) as a result
of any action, suit, proceeding or claim by any third party under any
Environmental Law. The term "Environmental Liability" shall include: (i)
reasonable fees of counsel and consultants (but not any corporate allocation for
management time or for the use of similar in-house services or facilities), and
(ii) the costs and expenses of any investigation undertaken to ascertain the
existence or extent of any potential or actual Environmental Liability.
"Hazardous Material" shall mean any substance regulated by any
Environmental Law or which may now or in the future form the basis for any
Environmental Liability.
"Public Authority" shall mean any supranational, national,
regional, state or local government court, governmental agency, authority,
board, bureau, instrumentality or regulatory body.
3.21 Holding Company Act and Investment Company Act. Neither the
Company nor its subsidiaries is: (i) a "public utility company" or a "holding
company," or an "affiliate" or a "subsidiary company" of a "holding company," or
an "affiliate" of such a "subsidiary company," as such terms are defined in the
Public Utility Holding Company Act of 1935, as amended, or (ii) a "public
utility," as defined in the Federal Power Act, as amended, or (iii) an
"investment company" or an "affiliated person" thereof or an "affiliated person"
of any such "affiliated person," as such terms are defined in the Investment
Company Act of 1940, as amended.
ARTICLE 4
COVENANTS
4.1 Best Efforts. The parties shall use their best efforts timely
to satisfy each of the conditions described in Articles 6 and 7 of this
Agreement.
4.2 Securities Laws. The Company shall file a Form D with
respect to the Securities with the SEC as required under Regulation D and shall
provide a copy thereof to Purchaser within 15 days after the Closing Date. The
Company shall file a Form 8-K disclosing this Agreement and the transactions
contemplated hereby with the SEC within five business days following the Closing
Date. The Company shall, on or prior to the Closing Date, take such action as is
necessary to sell the Securities to Purchaser under applicable securities laws
of the states of the United States, and shall provide evidence of any such
action so taken to Purchaser on or prior to the Closing Date.
4.3 Reporting Status. So long as Purchaser beneficially owns any
of the Securities, the Company shall use its best efforts to timely file all
reports required to be filed by it with the SEC pursuant to the Exchange Act,
and make and keep public information available as those terms are defined in
Rule 144 and the Company shall not terminate its status as an issuer required to
file reports under the Exchange Act even if the Exchange Act or the rules and
regulations thereunder would permit such termination.
4.4 Use of Proceeds. The Company shall use the Purchase Price for
general corporate purposes.
4.5 Expenses. Except as may otherwise agreed to, the Company and
Purchaser shall pay all the costs and expenses incurred by it or on its behalf
in connection with this Agreement and the consummation of the transactions
contemplated hereby.
4.7 Transactions with Affiliates. The Company will not, and will
not permit any subsidiaries to, engage in any transaction or group of related
transactions (including, without limitation, the purchase, lease, sale or
exchange of properties of any kind or the rendering of any service) with any
affiliate (other than the Company), except in the ordinary course and pursuant
to the reasonable requirements of the Company's or the subsidiaries' business
and upon fair and reasonable terms no less favorable to the Company or such
subsidiaries than would be obtainable in a comparable arm's-length transaction
with a person not an affiliate. The Company will not be deemed in default of
this Section 4.7 in connection with carrying out its obligations pursuant to
those agreements or transactions described in the Furnished SEC Documents.
4.8 Repurchase of Series H Preferred Stock. Purchaser
acknowledges and agrees that the Series H Preferred Stock shall be subject to
the terms, conditions and limitations set forth in the Series H Certificate of
Designation, including, without limitation, the Company's right to repurchase
the then outstanding shares of Series H Preferred Stock at a purchase price per
share of $0.2155 if Shenzhen New Industries Medical Development Co., Ltd.
("SNIMD") fails to satisfy the minimum purchase requirements described in the
Product Purchase Agreement (as defined herein).
4.9 Restriction on Conversion of Series H Preferred Stock.
Purchaser acknowledges and agrees that the Series H Preferred Stock may not be
converted until the expiration of the Restricted Period (as defined herein). For
purposes of this Agreement, the term "Restricted Period" shall mean (a) with
respect to 8,980,647 shares of the Series H Preferred Stock, the period
commencing on the Closing Date and ending on the first to occur of (i) the
one-year anniversary of Closing Date, (ii) the date on which the Company fails
to deliver products in accordance with the delivery schedule to be established
under the terms of the Product Purchase Agreement, and such failure is not cured
by the Company in accordance with the terms of the Product Purchase Agreement,
or (iii) the date on which, pursuant to the terms of the Product Purchase
Agreement SNIMD purchases, and the Company has received payment for, at least
$10,000,000 worth of the Company's products; and (b) with respect to 300,000
shares of the Series H Preferred Stock, the period commencing on the Closing
Date and ending on the date the Shelf Registration Statement (as defined in the
Registration Rights Agreement) is declared effective by the SEC.
4.10 Amendment to Bylaws. As of the Closing Date, the amendment
to the Company's Amended and Restated Bylaws adopted as of December 2, 1999 in
the form attached hereto as Exhibit C (the "Bylaw Amendment") shall have been
approved by the Board and authorized to be effective immediately upon the
Closing.
4.11 Purchase of Additional Shares. If at any time after the
Closing Date Purchaser desires to acquire additional shares of Common Stock
Purchaser may notify (such notification shall be referred to herein as the
"Additional Purchase Notice") the Board and request that Purchaser be issued
additional shares of Common Stock on the terms and conditions set forth in the
Additional Purchase Notice. The Board shall, in good faith, promptly consider
the Additional Purchase Notice and, consistent with the discharge of the Board's
fiduciary obligations, provide a written response to Purchaser's request. In
addition, if required by applicable laws or regulations and if consistent with
the discharge of the Board's fiduciary obligations, the Company shall submit
Purchaser's request to purchase additional shares of Common Stock to the
Company's shareholders for consideration.
ARTICLE 5
TRANSFER OF SECURITIES
The Securities shall not be transferable except upon the conditions
specified in this Article 5, which conditions are intended to insure compliance
with the provisions of the Securities Act and state securities laws in respect
of the transfer of any such Securities.
5.1 Restrictive Legend.
(a) Unless and until otherwise permitted by this
Article 5, each certificate for the Securities issued to Purchaser or to any
subsequent transferee of the Securities shall be stamped or otherwise imprinted
with a legend in substantially the following form:
"These shares have not been registered under the Securities
Act of 1933 and may not be offered for sale, sold, transferred
or otherwise disposed of unless registered under such Act or
unless an exemption from such registration is available.
Further, such transfer is subject to the conditions specified
in a Securities Purchase Agreement dated as of August 15, 2002
pursuant to which such shares were issued and sold by
LaserSight Incorporated (the "Company"), a copy of which
Agreement will be furnished by the Company to the holder
hereof upon request and without charge."
(b) The Company may order its transfer agent for the
Common Stock to stop the transfer of any of the Securities bearing the legend
set forth in Subsection (a) of this Section 5.1 until the conditions of this
Article 5 with respect to the transfer of such securities have been satisfied.
5.2 Notice of Proposed Transfer. If, prior to any transfer or
sale of any the Securities, Purchaser shall deliver a written notice to the
Company describing briefly the manner of such transfer or sale and a written
opinion of counsel for Purchaser (provided that such counsel, and the form and
substance of such opinion, are reasonably satisfactory to the Company) to the
effect that such transfer or sale may be effected without the registration of
such Securities under the Securities Act, the Company shall thereupon permit or
cause its transfer agent to permit such transfer or sale to be effected;
provided, however, that if in such written notice Purchaser represents and
warrants to the Company that the transfer or sale is to a purchaser or
transferee whom Purchaser knows or reasonably believes to be a "qualified
institutional buyer," as that term is defined in Rule 144A promulgated by the
SEC under the Securities Act ("Rule 144A"), no opinion shall be required unless
reasonably requested in writing by the Company within five days after receipt of
such written notice, in which case Purchaser shall deliver to Company such a
written opinion of counsel.
5.3 Termination of Restrictions.
(a) Notwithstanding the foregoing provisions of this
Article 5, the restrictions imposed by this Article 5 upon the transferability
of the Securities shall terminate as to any particular share of such securities
when (i) such security shall have been effectively registered under the
Securities Act and sold by Purchaser thereof in accordance with such
registration, or (ii) a written opinion to the effect that such restrictions are
no longer required or necessary under any federal or state securities law or
regulation has been received from counsel for Purchaser thereof (provided that
such counsel, and the form and substance of such opinion, are reasonably
satisfactory to the Company) or counsel for the Company, or (iii) such security
shall have been sold without registration under the Securities Act in compliance
with Rule 144, or (iv) the Company is reasonably satisfied that Purchaser of
such security shall, in accordance with the terms of Subsection (k) of Rule 144,
be entitled to sell such security pursuant to such Subsection, or (v) a letter
or an order shall have been issued to Purchaser thereof by the staff of the SEC
or the SEC stating that no enforcement action shall be recommended by such staff
or taken by the SEC, as the case may be, if such security is transferred without
registration under the Securities Act in accordance with the conditions set
forth in such letter or order and such letter or order specifies that no
subsequent restrictions on transfer are required.
(b) Whenever the restrictions imposed by this Article 5
shall terminate, as hereinabove provided, Purchaser who then holds any
particular Securities then outstanding as to which such restrictions shall have
terminated shall be entitled to receive from the Company, without expense to
Purchaser, one or more new certificates for such securities not bearing the
restrictive legend set forth in Section 5.1(a) hereof.
5.4 Compliance with Rule 144 and Rule 144A. At the written
request of Purchaser who proposes to sell any of the Securities in compliance
with Rule 144, the Company shall furnish to Purchaser, within 10 days after
receipt of such request, a written statement as to whether or not the Company is
in compliance with the filing requirements of the SEC as set forth in such Rule.
For purposes of effecting compliance with Rule 144A, in connection with any
resales of any Securities that hereafter may be effected pursuant to the
provisions of Rule 144A, Purchaser desiring to effect such resale and each
prospective institutional purchaser of such shares designated by Purchaser shall
have the right, at any time the Company is not subject to Section 13 or 15(d) of
the Securities and Exchange Act, to obtain from the Company, upon the written
request of Purchaser and at the Company's expense the documents specified in
Section (d)(4)(i) of Rule 144A, as such rule may be amended from time to time.
5.5 Non-Applicability of Restrictions on Transfer.
Notwithstanding the provisions of Section 5.2 hereof, any record owner of
Securities may from time to time transfer all or part of such record owner's
Securities (i) to a nominee identified in writing to the Company as being the
nominee of or for such record owner, and any nominee of or for a beneficial
owner of Securities identified in writing to the Company as being the nominee of
or for such beneficial owner may from time to time transfer all or part of the
Securities registered in the name of such nominee but held as nominee on behalf
of such beneficial owner, to such beneficial owner, (ii) to an Affiliate of such
record owner, or (iii) if such record owner is a partnership or limited
liability company or the nominee of a partnership or limited liability company,
to a partner, member, retired partner or member, or estate of a partner, member
or retired partner or member, of such partnership or limited liability company,
so long as such transfer is in accordance with the transferee's interest in such
partnership or limited liability company and is without consideration; provided,
however, that (A) such record owner shall deliver a written notice to the
Company describing in reasonable detail the manner of such transfer or sale
prior to the consummation of such transfer or sale, (B) each such transferee
shall remain subject to all restrictions on the transfer of Securities herein
contained, and (C) if reasonably requested in writing by the Company within five
days after receipt of such written notice, such record owner shall deliver to
the Company such additional information requested by the Company or its counsel
(in form and substance satisfactory to the Company and such counsel) that the
proposed transfer is within the scope of this Section 5.5 or a written opinion
of counsel for such record owner (provided that such counsel, and the form and
substance of such opinion, are reasonably satisfactory to the Company) to the
effect that such transfer or sale may be effected without the registration of
such securities under the Securities Act.
5.6 Series H Preferred Stock Proxy. Prior to the transfer or
sale of the Series H Preferred Stock, Purchaser shall notify any transferee of
the Series H Preferred Stock that such shares remain subject to the terms and
conditions of the Series H Preferred Stock Proxy (as defined in the Series H
Certificate of Designation) and will require such transferee to sign any
documents reasonably requested by the Company to confirm the rights granted by
the Series H Preferred Stock Proxy.
ARTICLE 6
CONDITIONS TO THE COMPANY'S OBLIGATION TO SELL
6.1 Conditions to the Company's Obligation to Sell. The
obligation of the Company hereunder to issue and sell the Securities to
Purchaser at the Closing is subject to the satisfaction, as of the Closing Date
and with respect to Purchaser, of each of the following conditions thereto,
provided that these conditions are for the Company's sole benefit and may be
waived by the Company at any time in its sole discretion:
(a) Purchaser shall have executed this Agreement and the
Registration Rights Agreement and delivered the same to the Company.
(b) The Company shall have received funds equal to the
Purchase Price via wire transfer to the account designated by the
Company.
(c) SNIMD shall have executed that certain Distribution
Agreement, the form of which is attached hereto as Exhibit D (the
"Distribution Agreement") and delivered the same to the Company.
(d) SNIMD and Purchaser shall have executed that
certain Product Purchase Agreement, the form of which is attached
hereto as Exhibit E (the "Product Purchase Agreement") and delivered
the same to the Company.
(e) Purchaser shall have provided the Company with
evidence that a letter of credit in the amount of $2,500,000 shall have
been issued for the account of SNIMD and for the benefit of the Company
in accordance with the requirements of the Product Purchase Agreement
(the "Letter of Credit").
(f) The Company shall have received confirmation from
Nasdaq that the Company will not be required to obtain shareholder
approval of the issuance of the Series H Preferred Stock.
(g) The representations and warranties of Purchaser
shall be true and correct as of the date when made and as of the
Closing as though made at that time (except for representations and
warranties that speak as of a specific date), and Purchaser shall have
performed, satisfied and complied in all material respects with the
covenants, agreements and conditions required by this Agreement to be
performed, satisfied or complied with by Purchaser at or prior to the
Closing.
(h) No statute, rule, regulation, executive order,
decree, ruling or injunction shall have been enacted, entered,
promulgated or endorsed by any court or governmental authority of
competent jurisdiction or any self-regulatory organization having
authority over the matters contemplated hereby which restricts or
prohibits the consummation of any of the transactions contemplated by
this Agreement.
ARTICLE 7
CONDITIONS TO PURCHASER'S OBLIGATION TO PURCHASE
7.1 The obligation of Purchaser hereunder to purchase the
Securities to be purchased by it on the Closing Date is subject to the
satisfaction of each of the following conditions, provided that these conditions
are for Purchaser's sole benefit and may be waived by Purchaser at any time in
Purchaser's sole discretion:
(a) The Company shall have executed this Agreement and the
Registration Rights Agreement and delivered the same to Purchaser.
(b) The Company shall have executed the Distribution Agreement
and delivered the same to Purchaser.
(c) The Company shall have executed the Product Purchase
Agreement and delivered the same to Purchaser.
(d) The Company shall have issued and delivered to Purchaser
the Series H Stock Certificate.
(e) The Company shall have executed and filed the
Series H Certificate of Designation with the Office of the Delaware
Secretary of State.
(f) The Board shall have approved and adopted the Bylaw
Amendment.
(g) Xxxxxx shall have acknowledged that the Company, as
of the Closing Date, is not in default under the terms of the Credit
Facility.
(h) The representations and warranties of the Company
shall be true and correct as of the date when made and as of the
Closing as though made at that time and the Company shall have
performed, satisfied and complied in all material respects with the
covenants, agreements and conditions required by this Agreement to be
performed, satisfied or complied with by the Company at or prior to the
Closing. Purchaser shall have received a certificate, executed by the
Chief Executive Officer or Chief Financial Officer of the Company,
dated as of the Closing Date to the foregoing effect.
(i) No statute, rule, regulation, executive order,
decree, ruling or injunction shall have been enacted, entered,
promulgated or endorsed by any court or governmental authority of
competent jurisdiction or any self-regulatory organization having
authority over the matters contemplated hereby which restricts or
prohibits the consummation of any of the transactions contemplated by
this Agreement.
(j) Purchaser shall have received an opinion of
Xxxxxxxxxxxx Xxxx & Xxxxxxxxx, dated as of the Closing Date, in the
form attached hereto as Exhibit F.
(k) Without limiting the generality of Section 7.1(d),
no Material Adverse Effect shall have occurred, nor shall any event or
events have occurred which would reasonably likely to have a Material
Adverse Effect.
ARTICLE 8
GOVERNING LAW; MISCELLANEOUS
8.1 Governing Law; Jurisdiction. This Agreement shall be
governed by and construed in accordance with the laws of the State of Delaware
applicable to contracts made and to be performed in the State of Delaware,
without giving effect to the principles of conflicts of law. The parties hereto
irrevocably consent to the jurisdiction of the United States federal courts and
state courts located in the County of New Castle in the State of Delaware in any
suit or proceeding based on or arising under this Agreement or the transactions
contemplated hereby and irrevocably agree that all claims in respect of such
suit or proceeding may be determined in such courts. The Company and Purchaser
irrevocably waive the defense of an inconvenient forum to the maintenance of
such suit or proceeding. Service of process upon the Company or Purchaser mailed
by certified mail, return receipt requested, shall be deemed in every respect
effective service of process upon the Company in any suit or proceeding arising
hereunder. Nothing herein shall affect Purchaser's right to serve process in any
other manner permitted by law. A final non-appealable judgment in any such suit
or proceeding shall be conclusive and may be enforced in other jurisdictions by
suit on such judgment or in any other lawful manner.
8.2 Counterparts. This Agreement may be executed in two or more
counterparts, including, without limitation, by facsimile transmission, all of
which counterparts shall be considered one and the same agreement and shall
become effective when counterparts have been signed by each party and delivered
to the other party. In the event any signature page is delivered by facsimile
transmission, the party using such means of delivery shall cause additional
original executed signature pages to be delivered to the other parties.
8.3 Headings. The headings of this Agreement are for convenience of
reference and shall not form part of, or affect the interpretation of, this
Agreement.
8.4 Severability. If any provision of this Agreement shall be
invalid or unenforceable in any jurisdiction, such invalidity or
unenforceability shall not affect the validity or enforceability of the
remainder of this Agreement or the validity or enforceability of this Agreement
in any other jurisdiction.
8.5 Entire Agreement; Amendments. This Agreement, the Schedules
hereto and the instruments referenced herein contain the entire understanding of
the parties with respect to the matters covered herein and therein and, except
as specifically set forth herein or therein, neither the Company nor Purchaser
makes any representation, warranty, covenant or undertaking with respect to such
matters. No provision of this Agreement may be waived other than by an
instrument in writing signed by the party to be charged with enforcement and no
provision of this Agreement may be amended other than by an instrument in
writing signed by the Company and Purchaser.
8.6 Notice. 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
0000 Xxxxxxxxxx Xxxxxxxxx
Xxxxx 000
Xxxxxx Xxxx, Xxxxxxx 00000
Telecopy: (000) 000-0000
Attention: Chief Executive Officer
with a copy to:
The Lowenbaum Partnership, L.L.C.
000 Xxxxx Xxxxxxx Xxxxxx
Xxxxx 000
Xx. Xxxxx, Xxxxxxxx 00000
Telecopy: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxxx, Esq.
and
Xxxxxxxxxxxx Xxxx & Xxxxxxxxx
0000 Xxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Telecopy: (000) 000-0000
Attention: Xxxx Xxxxxx, Esq.
If to Purchaser:
New Industries Investment Consultants (H.K.) Ltd.
c/o Benchmark Global Capital
000 Xxxx Xxxxxx, Xxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopy: (000) 000-0000
Attention: Xxxxx Xxxxxxxxx, Esq.
8.7 Successors and Assigns. This Agreement shall be binding upon
and inure to the benefit of the parties and their successors and assigns.
Neither the Company nor Purchaser shall assign this Agreement or any rights or
obligations hereunder without the prior written consent of the other. The
provisions of this Agreement which are for Purchaser's benefit as a purchaser
and holder of Securities are also for the benefit of, and enforceable by, any
subsequent holder of such Securities.
8.8 Third Party Beneficiaries. This Agreement is intended for the
benefit of the parties hereto and their respective permitted successors and
assigns and is not for the benefit of, nor may any provision hereof be enforced
by, any other person.
8.9 Survival. All representations and warranties in this
Agreement shall survive the execution and delivery of this Agreement and the
Closing. All agreements contained herein shall survive the Closing until, by
their respective terms, they are no longer operative.
8.10 Indemnification.
(a) The Company shall indemnify and hold harmless Purchaser,
its respective officers, directors, employees, attorneys, agents,
representatives, successors and assigns (each a "Purchaser Entity")
from any (a) Losses (as defined herein) insofar as such Losses (or
actions in respect thereof) incurred or suffered by Purchaser Entity
(whether incurred or suffered directly or indirectly through ownership
of capital stock of the Company) arise out of or are based upon or are
incurred as a result of (i) the breach or falsity or incorrectness as
of the Closing Date of any representation or warranty, covenants or
agreements of the Company contained in or made pursuant to this
Agreement, or (ii) the existence of any condition, event or fact
constituting, or which with notice or passage of time, or both, would
constitute a default in the observance of any of the Company's
undertakings or covenants hereunder, under the Company's Certificate of
Incorporation and By-laws. The Company shall also pay all reasonable
attorney's and accountant's fees and costs and court costs incurred by
Purchaser in enforcing the indemnification provided for in this Section
8.10. Notwithstanding the foregoing, the Company expressly agrees and
acknowledges that the right of indemnification granted herein to
Purchaser shall not be deemed to be the exclusive remedy available to
Purchaser for any of the matters described in this Section 8.10.
(b) For purposes of this Section 8.10, "Losses" shall mean
each and all of the following items: claims, losses, (including,
without limitation, losses of earnings) liabilities, obligations,
payments, damages (actual, punitive or consequential), charges,
judgments, fines, penalties, amounts paid in settlement; costs and
expenses (including, without limitation, interest which may be imposed
in connection therewith, costs and expenses of investigation, actions,
suits, proceedings, demands, assessments and fees, expenses and
disbursements of counsel, consultants and other experts). Any payment
(or deemed payment) by the Company to Purchaser pursuant to this
Section 8.10 shall be treated for federal income tax purposes as an
adjustment to the Purchase Price.
(c) Within five days after a party seeking indemnification
under this Section 8.10 shall become aware of the facts indicating that
a claim for indemnification may be warranted, such party shall give to
the party from whom indemnification is being sought a claim notice
relating to such Losses (a "Claim Notice"). Each Claim Notice shall
specify the nature of the claim, the applicable provision(s) of this
Agreement or other instrument under which the claim for indemnity
arises and, if possible, the amount or the estimated amount thereof.
8.11 Public Filings; Publicity. No party hereto shall make any
public statement regarding the transactions contemplated hereby unless the
language and timing of such statement has been approved by both the Company and
Purchaser or unless such party has been advised by its securities counsel to
make such statement. Notwithstanding the foregoing, each of the parties hereto
may, in documents required to be filed by it with the SEC or other regulatory
bodies, make such statements with respect to the transactions contemplated
hereby as each may be advised is legally necessary upon advice of its counsel;
provided, however, that the party making such determination shall immediately
notify the other party that it intends to make a public announcement and the
parties hereto shall, in good faith, attempt to agree on any public
announcements or publicity statements with respect thereto (which approval shall
not be unreasonably withheld or delayed).
8.12 Further Assurances. Each party shall do and perform, or
cause to be done and performed, all such further acts and things, and shall
execute and deliver all such other agreements, certificates, instruments and
documents, as the other party may reasonably request in order to carry out the
intent and accomplish the purposes of this Agreement and the consummation of the
transactions contemplated hereby.
8.13 Remedies. No provision of this Agreement providing for any
remedy to Purchaser shall limit any remedy that would otherwise be available to
Purchaser at law or in equity. Nothing in this Agreement shall limit any rights
Purchaser may have with any applicable federal or state securities laws with
respect to the investment contemplated hereby.
IN WITNESS WHEREOF, Purchaser and the Company have caused this
Agreement to be duly executed as of the date first above written.
LASERSIGHT INCORPORATED NEW INDUSTRIES INVESTMENT
CONSULTANTS (H.K.) LTD.
By: /s/ Xxxxxxx X. Xxxxxx By: /s/ Xxxx Xxxxxxxx
----------------------------------- ----------------------------
Name: Xxxxxxx X. Xxxxxx Name: Xxxx Xxxxxxxx
----------------------------------- ----------------------------
Title: President & CEO Title: Chairman
----------------------------------- ----------------------------
SIGNATURE PAGE TO
SECURITIES PURCHASE AGREEMENT
LIST OF EXHIBITS AND SCHEDULES
Exhibit A - Series H Certificate of Designation
Exhibit B - Registration Rights Agreement
Exhibit C - Amendment to Amended and Restated Bylaws
Exhibit D - Distribution Agreement
Exhibit E - Product Purchase Agreement
Exhibit F - SN&R Opinion
Schedule 3.2 - Consents
Schedule 3.3 - Capitalization
Schedule 3.5 - Conflicts
Schedule 3.6 - SEC Filings
Schedule 3.7 - Certain Changes
Schedule 3.8 - Litigation
Schedule 3.14 - Intellectual Property
Schedule 3.15 - Employment and ERISA Matters
Schedule 3.16 - Subsidiaries
Schedule 3.18 - Compliance with Laws; Permits
Schedule 3.19 - Tax Matters
Schedule 3.20 - Environmental Matters
