EXHIBIT 99.6
SECOND AMENDMENT TO RIGHTS AGREEMENT
THIS SECOND AMENDMENT to the Rights Agreement (the "Rights Agreement")
dated as of July 2, 1998, between LaserSight Incorporated and American Stock
Transfer & Trust Company as Rights Agent ("American Stock Transfer") is dated as
of the 28th day of January, 2000.
WHEREAS, the Company proposes to enter into that certain Securities
Purchase Agreement dated as of January 31, 2000 (the "Securities Purchase
Agreement") with TLC Laser Eye Centers Inc. (the "Purchaser"), and following the
consummation of the transactions contemplated by the Securities Purchase
Agreement the Purchaser will be a significant stockholder of the Company; and
WHEREAS, the Board of Directors of the Company believes that it is in
the best interests of the Company and its stockholders that the transactions
contemplated by the Securities Purchase Agreement be consummated on the terms
set forth in the Securities Purchase Agreement;
WHEREAS, the Board of Directors of the Company desires to amend the
Rights Agreement such that the execution of the Securities Purchase Agreement
and the consummation of the transactions contemplated thereby will not cause (i)
the Purchaser or its Affiliates or Associates to become an Acquiring Person as a
result of the acquisition of securities of the Company pursuant to the
Securities Purchase Agreement or (ii) a Distribution Date, a Shares Acquisition
Date or a Triggering Event to occur, irrespective of the number of securities
acquired pursuant to the Securities Purchase Agreement;
WHEREAS, Section 27 of the Rights Agreement authorizes the Board of
Directors of the Company and the Rights Agent to adopt the proposed amendment
without the approval of the Company's stockholders; and
WHEREAS, capitalized terms used but not defined herein have the
meanings assigned to such terms in the Rights Agreement;
NOW, THEREFORE, in consideration of the recitals (which are deemed to
be a part of this Amendment) and agreements contained herein, the parties hereto
agree to amend the Rights Agreement as follows:
1. Section 1(a) of the Rights Agreement is hereby modified
and amended by adding the following sentence at the end thereof:
Notwithstanding the foregoing, no Person shall become an Acquiring
Person as the result an acquisition of securities of the Company (or
the acquisition of Common Shares upon the conversion of such
securities) pursuant to and in accordance with the Securities Purchase
Agreement; provided, however, that if a Person shall become the
Beneficial Owner of 15% or more of the Common Shares of the Company
then outstanding by reason of the acquisition of securities (including
the acquisition of Common Shares upon the conversion of such
securities) pursuant to and in accordance with the Securities Purchase
Agreement and shall, after such share acquisitions, (A) acquire, in one
or more transactions, beneficial ownership of an additional number of
Common Shares which exceeds 0.1% of the then-outstanding Common Shares
and (B) beneficially own after such acquisition 15% or more of the
aggregate number of Common Shares of the Company then outstanding, then
such Person shall be deemed to be an Acquiring Person.
2. Section 1(w) of the Rights Agreement is hereby modified
and amended by adding the following sentence at the end thereof:
Notwithstanding any provision of this Agreement to the contrary,
neither the execution and delivery of the Securities Purchase Agreement
nor consummation of the transactions contemplated thereby (including
the conversion of securities acquired pursuant thereto into Common
Shares) shall be deemed to cause a Shares Acquisition Date.
3. Section 1(y) of the Rights Agreement is hereby modified
and amended by adding the following sentence at the end thereof:
Notwithstanding any provision of this Agreement to the contrary,
neither the execution and delivery of the Securities Purchase Agreement
nor consummation of the transactions contemplated thereby (including
the conversion of securities acquired pursuant thereto into Common
Shares) shall be deemed to be a Triggering Event.
4. Section 3(a) of the Rights Agreement is hereby modified
and amended by adding the following sentence at the end thereof:
Notwithstanding any provision of this Agreement to the contrary,
neither the execution and delivery of the Securities Purchase Agreement
nor consummation of the transactions contemplated thereby (including
the conversion of securities acquired pursuant thereto into Common
Shares) shall be deemed to cause a Distribution Date.
5. Section 15 of the Rights Agreement is hereby modified and
amended to add the following sentence at the end thereof:
Nothing in this Agreement shall be construed to give any holder of
Rights or any other Person any legal or equitable rights, remedy or
claim under this Agreement in connection with any transactions
contemplated by the Securities Purchase Agreement.
6. Except as expressly amended hereby, the Rights Agreement
remains in full force and effect.
7. This Amendment shall be deemed to be a contract made under the laws
of the State of Delaware, and for all purposes shall be governed by and
construed in accordance with the laws of such State applicable to contracts made
and performed entirely within such State.
8. This Amendment may be executed in any number of counterparts and
each of such counterparts shall for all purposes be deemed to be an original,
and all such counterparts shall together constitute but one and the same
instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed as of the day and year first above written.
Attest: LASERSIGHT INCORPORATED
By: /s/J. Xxxxxxx Xxxxxxx By: /s/Xxxxxxx X. Xxxxxx
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Name: J. Xxxxxxx Xxxxxxx Name: Xxxxxxx X. Xxxxxx
Title: Chief Operating Officer Title: Chief Financial Officer
Attest: AMERICAN STOCK TRANSFER &
TRUST COMPANY
By: /s/Xxxxx Xxxxxx By: /s/Xxxxxxx X. Xxxxxx
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Name: Xxxxx Xxxxxx Name: Xxxxxxx X. Xxxxxx
Title: Assistant Secretary Title: Vice President
