Void after 5:00 p.m., Orlando, Florida time, on February 22, 2004
THIS WARRANT AND THE SHARES OF COMMON STOCK ISSUABLE UPON EXERCISE OF
THIS WARRANT HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933
OR ANY STATE SECURITIES LAW AND MAY NOT BE EXERCISED, OFFERED FOR SALE,
SOLD, PLEDGED OR OTHERWISE TRANSFERRED, EXCEPT AS PERMITTED UNDER THIS
WARRANT AND THEN ONLY IF REGISTERED UNDER SUCH ACT AND ALL APPLICABLE
STATE SECURITIES LAWS OR THE COMPANY RECEIVES AN OPINION OF COUNSEL
SATISFACTORY TO THE COMPANY AND ITS COUNSEL TO THE EFFECT THAT NO SUCH
REGISTRATION IS REQUIRED, SUCH OPINION TO BE IN THE FORM OF OPINION
ANNEXED TO THIS WARRANT.
---------------------------------------
WARRANT TO PURCHASE COMMON STOCK
of
LASERSIGHT INCORPORATED
1. Grant of Warrant. This is to certify that, for value received, Xxx
Xxxxxx ("Investor") or his permitted assigns (individually, "Holder" and
collectively, "Holders") are entitled, subject to the terms set forth below, to
purchase from LaserSight Incorporated, a Delaware corporation (the "Company") or
its successors or assigns, sixty-seven thousand five hundred (67,500), fully
paid, validly issued and non-assessable shares of common stock, $0.001 par
value, of the Company ("Common Stock") at an initial exercise price equal to
$5.00 per share in the manner and subject to the conditions hereinafter
provided. The number of shares of Common Stock to be received upon the exercise
of this Warrant and the price to be paid for each share of Common Stock may be
adjusted from time to time as provided in Section 16. The shares of Common Stock
deliverable upon such exercise, and as adjusted from time to time, are
hereinafter sometimes referred to as "Warrant Shares" and the exercise price per
share of Common Stock in effect at any time and as adjusted from time to time is
hereinafter sometimes referred to as the "Exercise Price."
2. Term and Vesting. This Warrant is exercisable, to the extent vested,
at any time prior to expiration. This Warrant shall vest as follows: (i) on the
first anniversary of the date hereof, Holder may exercise his right to purchase
22,500 of the Warrant Shares, (ii) on the second anniversary of the date hereof,
Holder may exercise his right to purchase 22,500 of the Warrant Shares, and
(iii) on the third anniversary of the date hereof, Holder may exercise his right
to purchase 22,500 of the Warrant Shares. This Warrant shall expire in full to
the extent not vested or exercised by 5:00 p.m., Orlando, Florida time, on the
first to occur of (i) the fifth anniversary of the date hereof, or (ii) thirty
(30) days after the date on which that certain Consulting Agreement, dated
February 22, 1999 between the Company and Investor is terminated for any reason.
3. Exercise of Warrant. This Warrant may be exercised, to the extent
vested, in whole or in increments of 2,500 shares of Common Stock, subject to
the provisions hereof, by presentation and surrender hereof to the Company at
its principal office (or such other office or agency of the Company as it may
from time to time designate by notice in writing to Holder at the address of
Holder appearing on the books of the Company ("Other Office")) with the Notice
of Exercise annexed hereto duly completed and executed on behalf of Xxxxxx, with
Xxxxxx's signature guaranteed by an eligible guarantor institution that is a
member of a recognized medallion signature guarantee program, and accompanied by
payment of the Exercise Price by wire transfer, certified or official bank
check. As soon as practicable after each such exercise of the Warrant, but not
later than ten (10) business days from the date of such exercise, the Company
shall issue and mail to Holder a certificate or certificates for the Warrant
Shares issuable upon such exercise, registered in the name of Holder. This
Warrant shall be deemed to have been exercised immediately prior to the close of
business on the date of its surrender for exercise as provided above, unless
such date is not a day on which banks are open for business in Orlando, Florida
which case this Warrant shall be deemed to have been exercised on the first
succeeding day on which banks are open for business in Orlando, Florida (such
date, the "Exercise Date"). The person entitled to receive the shares of Common
Stock issuable upon such exercise shall be deemed to be the holder of record
thereof from and after the Exercise Date, notwithstanding that certificates
representing such Warrant Shares shall not then have been physically delivered.
4. Reservation of Shares. The Company shall at all times reserve for
issuance and/or delivery upon exercise of this Warrant such number of shares of
its Common Stock as shall from time to time be required for issuance and
delivery upon exercise of the Warrant in full.
5. Fractional Shares. No fractional shares or scrip representing
fractional shares shall be issued upon the exercise of this Warrant. Any
fractional share to which Holder would otherwise be entitled shall be rounded to
the nearest whole share.
6. Warrant Register. The Company will maintain a register (the "Warrant
Register") containing the names and addresses of the Holder or Holders. Any
Holder may change his address as shown on the Warrant Register by written notice
to the Company requesting such change. Any notice or written communication
required or permitted to be given to the Holder may be delivered or given by
mail to such Holder as named in the Warrant Register and at the address shown on
the Warrant Register. Until this Warrant is transferred on the Warrant Register
of the Company in accordance with the provisions hereof, the Company may treat
the Holder named in the Warrant Register as the absolute owner of this Warrant
for all purposes, notwithstanding any notice to the contrary.
7. Warrant Agent. The Company may, by written notice to all Holders,
appoint an agent ("Warrant Agent") for the purpose of maintaining the Warrant
Register, issuing the Common Stock or other securities then issuable upon the
exercise of this Warrant, exchanging this Warrant, or replacing this Warrant.
Thereafter, any such registration, issuance, exchange, or replacement shall be
made at the office of the Warrant Agent.
8. Transfer, Exchange or Replacement.
(a) Transferability and Non-Negotiability of Warrant. Neither
this Warrant nor any interest therein may be transferred or assigned in whole or
in part without compliance with all applicable federal and state securities laws
by Xxxxxx and the transferee or assignee thereof, including delivery of
investment intent representation letters and a legal opinion acceptable to the
Company and its counsel to the effect that such transfer or assignment is exempt
from the registration requirements of the Securities Act of 1933 and the rules
and regulations promulgated thereunder, or any similar successor statute
(collectively, the "Securities Act"), and any applicable state securities laws.
Subject to the preceding sentence and the Company's prior written approval of
any proposed transferee (such approval, if any, being subject to the Company's
sole and absolute discretion), this Warrant may be transferred by endorsement
(by Xxxxxx executing the Assignment Form annexed hereto with Xxxxxx's signature
guaranteed by an eligible guarantor institution that is a member of a recognized
medallion signature guarantee program) and delivery thereof to the Company or
the Warrant Agent, as applicable, together with payment of any applicable
transfer taxes.
(b) Exchange of Warrant Upon a Transfer. On surrender of this
Warrant for exchange, properly endorsed on the Assignment Form with Xxxxxx's
signature guaranteed by an eligible guarantor institution that is a member of a
recognized medallion signature guarantee program, and subject to Section 8(a),
the Company at its expense shall issue to Holder a new warrant or warrants of
like tenor, in the name of Holder or as Holder (on payment by Holder of any
applicable transfer taxes) may direct, for the number of shares issuable upon
exercise hereof.
(c) Replacement of Warrant. On receipt of evidence reasonably
satisfactory to the Company of the loss, theft, destruction or mutilation of
this Warrant and, in case of loss, theft or destruction, on delivery of a
third-party indemnity agreement reasonably satisfactory in form and substance to
the Company or, in the case of mutilation, on surrender and cancellation of this
Warrant, the Company at its expense shall execute and deliver, in lieu of this
Warrant, an new warrant of like tenor and amount.
9. Compliance with Securities Laws.
(a) Holder, by acceptance of this Warrant, acknowledges that
neither this Warrant nor the Warrant Shares have been registered under the
Securities Act and represents and warrants to the Company that this Warrant is
being acquired for investment and not for distribution or resale, solely for
Holder's own account and not as a nominee for any other person, and that Holder
will not offer, sell, pledge or otherwise transfer this Warrant or any Warrant
Shares except (i) in compliance with the requirements for an available exemption
from the Securities Act and any applicable state securities laws, or (ii)
pursuant to an effective registration statement or qualification under the
Securities Act and any applicable state securities laws.
(b) Certificates for all Warrant Shares shall bear a legend in
substantially the following form:
THESE SHARES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933
OR ANY STATE SECURITIES LAWS AND MAY NOT BE OFFERED FOR SALE, SOLD,
PLEDGED OR OTHERWISE TRANSFERRED UNLESS SUCH SHARES ARE REGISTERED
UNDER SUCH ACT AND ALL APPLICABLE STATE SECURITIES LAWS OR THE COMPANY
RECEIVES AN OPINION OF COUNSEL SATISFACTORY TO THE COMPANY AND ITS
COUNSEL TO THE EFFECT THAT NO SUCH REGISTRATION IS REQUIRED.
10. Rights of the Holder. Subject to Sections 16 and 17, and until the
Warrant shall have been exercised as provided herein, Holder shall not be
entitled to vote, receive dividends or other distributions on, or be deemed the
holder for any purpose of, any Warrant Shares or any other securities of the
Company that may from time to time be issuable upon the exercise hereof, nor
shall Holder, in such capacity, enjoy any of the rights of a stockholder of the
Company or any right to vote on, or consent (or withhold consent) to, the
election of directors of the Company or any other matter submitted to the
stockholders of the Company, or to receive notice of meetings thereof.
11. Piggy-Back Registration Rights.
(a) If during the Registration Period (as defined herein) the Company
proposes or is required to file with the SEC a registration statement (the
"Piggy-Back Registration Statement") under the Securities Act in connection with
an Underwritten Offering of Common Stock (other than a registration statement
that does not permit the inclusion therein of the Warrant Shares), the Company
will each such time give prompt written notice of its intention to do so to each
Holder. Upon the written request of any Holder given within 10 days after the
delivery or mailing of such notice from the Company, the Company will use
commercially reasonable efforts to include in such Piggy-Back Registration
Statement that number of the Warrant Shares specified by Holder in such written
request (subject to the limitations set forth in this Section 11(a) and in
Section 11(b) below) (the "Requested Shares") so as to permit the public sale of
such Requested Shares, provided that if the managing underwriter or underwriters
advise the Company that marketing factors require a limit on the number of
shares to be underwritten, the Company may (subject to the limitations set forth
below) exclude all Requested Shares from, or limit the number of Requested
Shares to be included in, the Piggy-Back Registration Statement and
underwriting. In such event, the Company shall so advise each requesting Holder,
and the number of Requested Shares and other shares ("Other Shares") requested
to be included in such Piggy-Back Registration Statement and underwriting by
other persons or entities that are then stockholders of the Company ("Other
Holders"), after providing for all shares that the Company proposes to offer and
sell for its own account, shall be allocated among the Requesting Holders and
Other Holders pro rata on the basis of (i) the number of Requested Shares then
held by the requesting Holders and (ii) the aggregate number of Other Shares
then held by Other Holders.
(b) The right of any Holder to registration shall be conditioned upon
(i) such Xxxxxx's execution of the underwriting agreement agreed to among the
Company and the managing underwriters selected by the Company for such
underwritten offering, (ii) such Xxxxxx's completion and execution of all
customary questionnaires and other documents which must be executed in
connection with such underwriting agreement, and (iii) such Holder supplying the
Company and the underwriter such additional information as may be necessary to
register such Holder's Registrable Securities.
(c) The registration rights granted pursuant to this Section 11, shall
commence as of the date of the first exercise of this Warrant (the "Initial
Exercise Date") and continue until the first to occur of (i) the date on which
all of the Warrant Shares have been sold by the Holders, (ii) the date on which
all of the Warrant Shares may be immediately sold to the public without
registration conditions or limitations, whether pursuant to Rule 144 or
otherwise, (iii) the date which is the one-year anniversary of the date on which
this Warrant is fully exercised, and (iv) the date which is the one-year
anniversary of the date on which this Warrant expires. The period of time
commencing on the Initial Exercise Date and ending on the earliest of the
foregoing dates shall be referred to as the "Registration Period".
12. Blackout Period and Holdback Events.
(a) During any period of up to 90 days' duration following the
occurrence of a Blackout Event (a "Blackout Period"), the Company shall not be
required to file, or cause to be declared effective, under the Securities Act
the Piggy-Back Registration Statement, or, if applicable, the Holders will
discontinue the offer and sale of Warrant Shares pursuant to the Piggy-Back
Registration Statement.
(b) The Holders shall not, if requested by the managing
underwriter or underwriters of an Underwritten Offering, effect any public or
private sale of any Common Stock, including a sale pursuant to Rule 144, during
the period ("Holdback Period") beginning 14 days prior to, and ending 90 days
after, the effective date of the registration statement relating to a public
offering of Common Stock, or other securities convertible into, or exercisable
or exchangeable for, Common Stock that is underwritten on a firm commitment
basis.
(c) The aggregate number of days during which one or more
Blackout Periods or Holdback Periods are in effect shall not exceed 180 days
during the Registration Period, provided that the aggregate number of days
during which one or more Blackout Periods or Holdback Periods are in effect
shall not exceed 90 days in any 12 month period during the Registration Period.
(d) The Company shall promptly notify the Holders in writing
of any decision not to file the Piggy-Back Registration Statement or not to
cause the Piggy-Back Registration Statement to be declared effective or to
discontinue sales of Warrant Shares pursuant to this Section 12, which notice
shall set forth the reason for such decision (but not disclosing any nonpublic
material information) and shall include an undertaking by the Company promptly
to notify the Holders as soon as sales may resume.
For purposes of this Warrant "Blackout Event" shall mean a
determination by the Company's Board of Directors made in good faith, after
consulting with outside securities counsel, that the registration of Warrant
Shares under the Securities Act or the continuation of the disposition of
Warrant Shares pursuant to the Piggy-Back Registration Statement at such time
(i) would have a material adverse effect upon a proposed material sale of all
(or substantially all) of the assets of the Company or a material merger,
reorganization, recapitalization or similar current transaction materially
affecting the capital structure or equity ownership of the Company, or (ii)
would require the Company to make a public disclosure of information, which
disclosure would have a material adverse effect on the Company.
13. Registration Procedures. In connection with the filing of the
Piggy-Back Registration Statement, the Company shall effect such registrations
to permit the sale of the Warrant Shares covered thereby in accordance with the
intended method or methods of disposition thereof, and in connection with the
Piggy-Back Registration Statement the Company shall:
(a) Notify the selling Holders of Warrant Shares promptly (but
in any event within five business days), and confirm such notice in writing: (i)
when the Prospectus or any Prospectus supplement or post-effective amendment has
been filed, and, with respect to the Piggy-Back Registration Statement or any
post-effective amendment, when the same has become effective under the
Securities Act, and (ii) of the issuance by the SEC of any stop order suspending
the effectiveness of the Piggy-Back Registration Statement or of any order
preventing or suspending the use of any preliminary prospectus or the initiation
of any proceedings for that purpose.
(b) Use its reasonable best efforts to prevent the issuance of
any order suspending the effectiveness of the Piggy-Back Registration Statement
or of any order preventing or suspending the use of the Prospectus or suspending
the qualification (or exemption from qualification) of any of the Warrant Shares
for sale in any jurisdiction and, if any such order is issued, to use its
reasonable best efforts to obtain the withdrawal of any such order at the
earliest practicable time.
(c) Furnish to each selling Holder of Warrant Shares at the
sole expense of the Company one conformed copy of the Piggy-Back Registration
Statement and each post-effective amendment thereto and, if requested, all
documents incorporated or deemed to be incorporated therein by reference and all
exhibits.
(d) Deliver to each selling Holder of Warrant Shares at the
sole expense of the Company as many copies of the Prospectus (including each
form of preliminary prospectus) and each amendment or supplement thereto and any
documents incorporated by reference therein as such Holder may reasonably
request; and, subject to the last paragraph of this Section 13, the Company
consents to the use of such Prospectus and each amendment or supplement thereto
by each of the selling Holders of Warrant Shares in connection with the offering
and sale of the Warrant Shares covered by such Prospectus and any amendment or
supplement thereto.
(e) Prior to any public offering of Warrant Shares, to use its
reasonable best efforts to register or qualify, and to cooperate with the
selling Holders of Warrant Shares in connection with the registration or
qualification (or exemption from such registration or qualification) of such
Warrant Shares for offer and sale under the securities or blue sky laws of such
jurisdictions within the United States as any selling Holder reasonably
requests; keep each such registration or qualification (or exemption therefrom)
effective during the period the Piggy-Back Registration Statement is required to
be kept effective and do any and all other acts or things reasonably necessary
or advisable to enable the disposition in such jurisdictions of the Warrant
Shares covered by the Piggy-Back Registration Statement; provided, however, that
the Company shall not be required to (i) qualify to do business in any
jurisdiction where it would not otherwise be required to qualify but for this
Section 13(e), (ii) subject itself to general taxation in any such jurisdiction,
(iii) file a general consent to service of process in any such jurisdiction,
(iv) provide any undertakings that cause the Company material expense or burden,
or (v) make any change in its Charter or By-laws, which in each case the
Company's Board of Directors determines to be contrary to the best interests of
the Company and its stockholders.
(f) Cooperate with the selling Holders of Warrant Shares to
facilitate the timely preparation and delivery of certificates representing
Warrant Shares to be sold, which certificates shall not bear any restrictive
legends and shall be in a form in compliance with any applicable rules of a
stock exchange on which the Common Stock is then listed; and enable such Warrant
Shares to be in such denominations and registered in such names as Holders may
reasonably request.
(g) Upon the occurrence of any event or any information
becoming known to the Company that makes any statement made in the Piggy-Back
Registration Statement or the Prospectus or any document incorporated or deemed
to be incorporated therein by reference untrue in any material respect, as
promptly as practicable prepare and file with the SEC, at the sole expense of
the Company, a supplement or post-effective amendment to the Piggy-Back
Registration Statement or a supplement to the Prospectus or any document
incorporated or deemed to be incorporated therein by reference, or file any
other required document so that, as thereafter delivered to the purchasers of
the Warrant Shares being sold thereunder, any such Prospectus will not contain
an 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.
(h) Comply with all applicable rules and regulations of the
SEC and make generally available to its security holders earnings statements
satisfying the provisions of Section 11(a) of the Securities Act and Rule 158
thereunder (or any similar rule promulgated under the Securities Act) no later
than 90 days after the end of any 12-month period (or 120 days after the end of
any 12-month period if such period is a fiscal year) commencing on the first day
of the first fiscal quarter of the Company after the effective date of the
Piggy-Back Registration Statement, which statements shall cover said 12-month
periods.
(i) Cooperate with each seller of Warrant Shares covered by
the Piggy-Back Registration Statement in connection with any filings required to
be made with the National Association of Securities Dealers, Inc.
(j) Use its reasonable best efforts to cause all Warrant
Shares relating to the Piggy-Back Registration Statement to be listed on each
securities exchange, if any, on which similar securities issued by the Company
are then listed.
The Company may require each seller of Warrant Shares as to which any
registration is being effected to furnish to the Company such information
regarding such seller and the distribution of such Warrant Shares as the Company
may, from time to time, reasonably request. The Company may exclude from such
registration the Warrant Shares of any seller so long as such seller fails to
furnish such information within a reasonable time after receiving such request.
Each seller as to which the Piggy-Back Registration Statement is being effected
agrees to furnish promptly to the Company all information required to be
disclosed in order to make the information previously furnished to the Company
by such seller not materially misleading.
Each Holder of Warrant Shares understands that the Securities Act may
require delivery of the Prospectus in connection with any sale thereof pursuant
to the Piggy-Back Registration Statement, and each such Holder shall comply with
the applicable Prospectus delivery requirements of the Securities Act in
connection with any such sale.
Each Holder of Warrant Shares agrees by acquisition of such Warrant
Shares that, upon actual receipt of any notice from the Company of the happening
of any event of the kind described in Section 13(a)(ii) hereof or any
information becoming known that makes any statement made in the Piggy-Back
Registration Statement or the Prospectus or any document incorporated or deemed
to be incorporated therein by reference untrue in any material respect, such
Holder will forthwith discontinue disposition of such Warrant Shares covered by
the Piggy-Back Registration Statement or the Prospectus to be sold by such
Holder until such Xxxxxx's receipt of the copies of the supplemented or amended
Prospectus contemplated by Section 13(d) hereof, or until it is advised in
writing (the "Advice") by the Company that the use of the Prospectus may be
resumed, and has received copies of any amendments or supplements thereto. In
the event the Company shall give any such notice, the Registration Period shall
be extended by the number of days during such period from and including the date
of the giving of such notice to and including the date when each seller of
Warrant Shares covered by the Piggy-Back Registration Statement, as the case may
be, shall have received (i) the copies of the supplemented or amended Prospectus
contemplated by Section 13(d) hereof or (ii) the Advice.
14. Expenses. With respect to such registration, the Company shall bear
all fees, costs and expenses, including without limitation all registration,
filing and NASD fees, printing expenses, fees and disbursements of counsel and
accountants for the Company, all internal Company expenses, and all legal fees
and disbursements and other expenses of complying with state securities or blue
sky laws of any jurisdiction in which the Warrant Shares are to be registered or
qualified, but excluding any underwriting discounts and commissions and transfer
taxes and any other related selling expenses incurred by the selling Holders.
The selling Holders will be responsible for fees and disbursements of such
parties' counsel and accountants.
15. Rule 144. During the Registration Period, the Company shall use its
reasonable best efforts to timely prepare and file all documents required to be
filed with the SEC as shall be necessary to enable the Holders to sell
unregistered Warrant Shares in accordance with Rule 144 under the Securities
Act. Upon the request of any Holder, the Company shall deliver to such Holder a
written statement as to whether it has complied with such requirements.
16. Anti-Dilution Provisions. So long as this Warrant, or any portion
thereof, shall remain outstanding and unexpired, the Exercise Price in effect
from time to time and the number and kind of securities purchasable upon the
exercise of the Warrants shall be subject to adjustment from time to time as
follows:
(a) If the Company shall (i) declare a dividend or make a
distribution on its outstanding shares of Common Stock in shares of Common
Stock, (ii) subdivide or reclassify its outstanding shares of Common Stock into
a greater number of shares, or (iii) combine or reclassify its outstanding
shares of Common Stock into a smaller number of shares (any of the foregoing, a
"Dilutive Event"), the Exercise Price in effect at the time of the record date
for such Dilutive Event shall be adjusted so that it shall equal the price
determined by multiplying the Exercise Price by a fraction, the denominator of
which shall be the number of shares of Common Stock outstanding immediately
after giving effect to such Dilutive Event, and the numerator of which shall be
the number of shares of Common Stock outstanding immediately prior to such
Dilutive Event (such fraction, the "Adjustment Factor"). Such adjustment shall
be made successively whenever any Dilutive Event shall occur.
(b) Whenever the Exercise Price payable upon exercise of each
Warrant is adjusted pursuant to Section 16(a), the number of shares purchasable
upon exercise of this Warrant shall simultaneously be adjusted by dividing the
number of shares issuable upon exercise of this Warrant by the Adjustment
Factor.
(c) If at any time, as a result of an adjustment made pursuant
to this Section 16(d) or 16(e), the Holder of this Warrant shall thereafter
become entitled to receive any shares of the Company, other than Common Stock or
shares of any issuer other than the Company, thereafter the Exercise Price and
the number of such other shares so receivable upon exercise of this Warrant
shall be subject to adjustment from time to time in a manner and on terms as
nearly equivalent as practicable to the provisions with respect to the Common
Stock contained in Sections 16(a) or 16(b).
(d) If the Company by reclassification of securities or
otherwise, shall change any of the securities as to which purchase rights under
this Warrant exist into the same or a different number of securities of any
other class or classes, this Warrant shall thereafter represent the right to
acquire such number and kind of securities as would have been issuable as the
result of such change with respect to the securities that were subject to the
purchase rights under this Warrant immediately prior to such reclassification or
other change and the Exercise Price therefor shall be appropriately adjusted,
all subject to further adjustment as provided in this Section 16.
(e) If at any time there shall be (i) a reorganization (other
than a subdivision, combination, reclassification, or other change of shares
otherwise provided for herein), (ii) a merger or consolidation of the Company
with or into another corporation in which the Company is not the surviving
entity, or a reverse triangular merger in which the Company is the surviving
entity but the shares of the Company's capital stock outstanding immediately
prior to the merger are converted by virtue of the merger into other property,
whether in the form of securities, cash, or otherwise, or (iii) a sale or
transfer of the Company's properties and assets as, or substantially as, an
entirety to any other person, then, as a part of such reorganization, merger,
consolidation, sale or transfer, lawful provision shall be made so that the
holder of this Warrant shall thereafter be entitled to receive upon exercise of
this Warrant, during the period specified herein and upon payment of the
Exercise Price then in effect, the number of shares of stock or other securities
or property of the successor corporation resulting from such reorganization,
merger, consolidation, sale or transfer that a Holder of the shares deliverable
upon exercise of this Warrant would have been entitled to receive in such
reorganization, consolidation, merger, sale or transfer if this Warrant had been
exercised immediately before such reorganization, merger, consolidation, sale or
transfer, all subject to further adjustment as provided in this Section 16. The
foregoing provisions of this Section 16(e) shall similarly apply to successive
reorganizations, consolidations, mergers, sales and transfers and to the stock
or securities of any other corporate that are at the time receivable upon the
exercise of this Warrant. In all events, appropriate adjustment (as determined
by the Company's Board of Directors) shall be made in the application of the
provisions of this Warrant with respect to the rights and interests of the
Holder after the transaction, to the end that the provisions of this Warrant
shall be applicable after the event, as near as reasonably may be, in relation
to any shares or other property deliverable after that event upon exercise of
this Warrant.
(f) Whenever the Exercise Price shall be adjusted as required
by the provisions of Section 16, the Company shall promptly file in the custody
of its Secretary or an Assistant Secretary at its principal office or Other
Office and with the Warrant Agent, if any, an officer's certificate showing the
adjusted Exercise Price determined as herein provided, setting forth in
reasonable detail the facts requiring such adjustment, including a statement of
the number of additional shares of Common Stock or other securities, if any,
issuable upon exercise of this Warrant and such other facts as shall be
necessary to show the reason for and the manner of computing such adjustment.
Each such certificate shall be made available at all reasonable times for
inspection by Holder and the Company shall forthwith after each such adjustment
mail a copy of such certificate to Holder at its address last appearing in the
Warrant Register.
17. Notices to Warrant Holders. If at any time while this Warrant, or
any portion thereof, remains outstanding and unexpired, (i) the Company shall
pay any dividend or make any distribution upon the Common Stock (other than
regular quarterly cash dividends or dividends paid in the form of Common Stock),
(ii) the Company shall offer to the holders of Common Stock generally for
subscription or purchase by them any share of the Company of any class or any
other rights issued by the Company, or (iii) the capital reorganization of the
Company, reclassification of the capital stock of the Company, consolidation or
merger of the Company with or into another corporation, sale of all or
substantially all of the property and assets of the Company to another
corporation or voluntary or involuntary dissolution, liquidation or winding up
of the Company shall be effected, then in any such case, the Company shall cause
to be mailed to Holder at its address specified in the Warrant Register, at
least 10 days prior to the date specified in (x) or (y) below, as applicable, a
notice containing a brief description of the proposed event described in (i),
(ii) or (iii) above and stating the date on which (x) a record is to be taken
for the purpose of such dividend, distribution or rights, or (y) such
reclassification, reorganization, consolidation, merger, sale, dissolution,
liquidation or winding up is to take place and the date, if any, is be fixed, as
of which the holders of the Common Stock or other securities shall receive cash
or other property deliverable upon such event. Notwithstanding the above, the
failure to give such notice shall not affect the validity of any transaction for
which the notice was required to be given.
18. Governing Law. This Warrant shall be governed by and construed in
accordance with the internal laws of the State of Florida without regard to such
state's conflict of law provisions.
19. Severability. In the event that any one or more of the provisions
contained herein, or the application thereof in any circumstance, is held
invalid, illegal or unenforceable, the validity, legality and enforceability of
any such provision in every other respect and of the remaining provisions
contained herein shall not be affected or impaired thereby.
20. Authorization. The Company and Investor each represent and warrant
to the other, as applicable, that (i) each such party is duly organized, validly
existing and in good standing under the laws of their respective jurisdiction of
incorporation, (ii) each such party has the requisite corporate power and
authority to execute this Warrant and to carry out and perform the terms and
provisions of this Warrant, and (iii) this Warrant constitutes the valid and
legally binding obligation of such party.
21. Counterparts. This Warrant may be executed in one or more
counterparts, each of which shall be deemed to be an original but all of which
together shall constitute one and the same instrument.
22. Notice. Any notice required or permitted to be given shall be in
writing and may be personally served or delivered by courier or by confirmed
telecopy, and shall be deemed to be delivered at the time and date of receipt
(which shall include telephone line facsimile transmission). The addresses for
such communications shall be:
If to the Company:
LaserSight Incorporated
0000 Xxxxxxxxxx Xxxxxxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Telecopy: (000) 000-0000
Attn: Chief Financial 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
Attn: Xxxxxxx X. Xxxxxxx, Esq.
And:
Xxxxxxxxxxxx Xxxx & Xxxxxxxxx
0000 Xxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Telecopy: (000) 000-0000
Attn: Xxxx X. Xxxxxx, Esq.
If to the Holder:
Xxx Xxxxxx
0000 Xxxxxxx X0X #000
Xxxxxxxxxxx, Xxxxxxx 00000
Telecopy: (000) 000-0000
IN WITNESS WHEREOF, the Company has caused this Warrant to be executed
by its officers thereunto duly authorized, as of the date below.
Dated as of: February 22, 1999
LASERSIGHT INCORPORATED
By: /s/Xxxxxxx X. Xxxxxx
--------------------------------
Xxxxxxx X. Xxxxxx
Attest: /s/Xxxxxxx X. Xxxxxx
--------------------------------
Xxxxxxx X. Xxxxxx, Secretary
ACCEPTED AND AGREE:
/s/Xxx Xxxxxx
--------------------------
Xxx Xxxxxx
Date: February 22, 1999
NOTICE OF EXERCISE
TO: LaserSight Incorporated Dated: __________, 199__
(1) The undersigned hereby irrevocably elects to exercise the within
Warrant to the extent of purchasing _________ shares of Common Stock and hereby
makes payment of _________ in payment of the actual exercise price thereof.
(2) By exercising this Warrant, the undersigned acknowledges that such
shares have not been registered under the Securities Act of 1933, and represents
and warrants to the Company that such shares are being acquired for investment
and not for distribution or resale, solely for the undersigned's own account and
not as a nominee for any other person, and that the undersigned will not offer,
sell, pledge or otherwise transfer such shares except (i) in compliance with the
requirements for an available exemption from such Securities Act and any
applicable state securities laws, or (ii) pursuant to an effective registration
statement or qualification under such Securities Act and any applicable state
securities laws.
INSTRUCTIONS FOR REGISTRATION OF STOCK
(3) Please issue a certificate or certificates representing said shares
of Common Stock in the name of the undersigned or in such other name as is
specified below:
Name:
-------------------------------------------------------------------------
(Please typewrite or print in block letters)
Name:
-------------------------------------------------------------------------
Address:
-------------------------------------------------------------------------
Signature:
-------------------------------------------------------------------------
(All signatures must be guaranteed by an eligible guarantor institution that is
a member of a recognized medallion signature guaranty program.)
ASSIGNMENT FORM
FOR VALUE RECEIVED, the undersigned registered owner of this Warrant
hereby sells, assigns and transfers unto the Assignee named below all of the
rights of the undersigned under the within Warrant, with respect to the number
of shares of Common Stock set forth below:
Name:
-------------------------------------------------------------------------
(Please typewrite or print name of Assignee in block letters)
Address:
-------------------------------------------------------------------------
Number of Shares:
-------------------------------------------------------------------------
and does hereby irrevocably constitute and appoint
______________________________, attorney to make such transfer on the books of
LaserSight Incorporated, maintained for the purpose, with full power of
substitution in the premises.
Dated:
-----------------------
Signature of Holder:
--------------------------------------------
The undersigned ASSIGNEE acknowledges that neither the within Warrant
nor, if the Piggy-Back Registration Statement contemplated by Section 11 of this
Warrant has not been declared effective, any of the Warrant Shares (as defined
in the Warrant) have been registered under the Securities Act of 1933, and the
undersigned ASSIGNEE represents and warrants to the Company that the Warrant and
the Warrant Shares are being acquired for investment and not for distribution or
resale, solely for the undersigned's own account and not as a nominee for any
other person, and that the undersigned ASSIGNEE will not offer, sell, pledge or
otherwise transfer the Warrant or the Warrant Shares except (i) in compliance
with the requirements for an available exemption from such Securities Act and
any applicable state securities laws or (ii) pursuant to an effective
registration statement or qualification under such Securities Act and any
applicable state securities laws.
Dated:
-----------------------
Signature of Assignee:
--------------------------------------------
(All signatures must be guaranteed by an eligible institution that is a member
of a recognized medallion signature guaranty program.)
