EXHIBIT 99.4
THIS WARRANT AND ANY SECURITIES ACQUIRED UPON EXERCISE OF THIS WARRANT HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR ANY STATE
SECURITIES LAWS. THE SECURITIES MAY NOT BE OFFERED FOR SALE, SOLD, TRANSFERRED
OR ASSIGNED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT FOR THE
SECURITIES UNDER SUCH ACT OR APPLICABLE STATE SECURITIES LAWS OR PURSUANT TO AN
APPLICABLE EXEMPTION TO THE REGISTRATION REQUIREMENTS OF SUCH ACT AND SUCH LAWS.
LASERSIGHT INCORPORATED
COMMON STOCK PURCHASE WARRANT
September 8, 2000
Warrant to Purchase 200,000
Shares of Common Stock
LASERSIGHT INCORPORATED, a Delaware corporation (the
"Company"), for value received, hereby certifies that BayStar International,
Ltd., or registered assigns (the "Holder"), is entitled to purchase from the
Company 200,000 (the "Warrant Shares") duly authorized, validly issued, fully
paid and nonassessable shares of Common Stock, par value $.001 per share, of the
Company (the "Common Stock"), at a purchase price equal to $3.60 per share (the
"Purchase Price"), at any time or from time to time on and after the date hereof
and prior to 5:00 P.M., New York City time, on September 8, 2003 (the
"Expiration Date"), all subject to the terms, conditions and adjustments set
forth below in this Warrant.
This Warrant is one of the Common Stock Purchase Warrants
(collectively, the "Warrants", such term to include any such warrants issued in
substitution therefor) originally issued pursuant to the terms of the Securities
Purchase Agreement, dated as of September 8, 2000, by and among the Company and
the Buyers signatory thereto (the "Purchase Agreement"). Capitalized terms used
herein and not otherwise defined herein shall have the meanings assigned such
terms in the Purchase Agreement.
1. DEFINITIONS. As used herein, unless the context
otherwise requires, the following terms shall have the meanings indicated:
"Additional Shares of Common Stock" shall mean, all shares
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(including treasury shares) of Common Stock issued or sold (or, pursuant to
Section 3.2, deemed to be issued) by the Company after the date hereof, whether
or not subsequently reacquired or retired by the Company other than (i) shares
of Common Stock issued upon exercise of the Warrants, (ii) such number of
additional shares of Common Stock as may become issuable by exercise of the
Warrants by reason of adjustments required pursuant to the anti-dilution
provisions applicable to the Warrants, and (iii) shares of Common Stock issued
pursuant to Approved Stock Plans.
"Anniversary Date" shall mean September 8 of each calendar
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year.
"Approved Stock Plan" shall mean any contract, plan or
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agreement which has been or shall be approved by the Board of Directors of the
Company or a committee of the Board of Directors, pursuant to which the
Company's securities may be issued to any employee, officer, director,
consultant or other service provider of the Company.
"Average Market Price" shall mean the average of the Closing
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Bid Prices of the Common Stock for the five (5) trading days immediately
preceding the applicable date.
"Business Day" shall mean any day other than a Saturday or a
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Sunday or a day on which commercial banking institutions in the City of New York
are authorized by law to be closed. Any reference to "days" (unless Business
Days are specified) shall mean calendar days.
"Buy in Actual Damages" shall have the meaning assigned to it
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in Section 2.6 of this Agreement.
"Closing Bid Price" shall mean for any security as of any
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date, the closing bid price of such security on the principal securities
exchange or trade market where such security is listed or traded as reported by
Bloomberg, L.P. ("Bloomberg"), or if the foregoing does not apply, the closing
bid price of such security in the over-the-counter market on the electronic
bulletin board for such security as reported by Bloomberg, or, if no closing bid
price is reported for such security by Bloomberg, the average of the bid prices
of any market makers for such security as reported in the "pink sheets" by the
National Quotation Bureau, Inc. If the Closing Bid Price cannot be calculated
for such security on such date, as set forth above, the Closing Bid Price of
such security shall be the fair market value as determined in good faith by an
investment banking firm selected jointly by the Company and the Holders, with
the fees and expenses of such determination borne solely by the Company.
"Commission" shall mean the Securities and Exchange Commission
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or any successor agency having jurisdiction to enforce the Securities Act.
"Common Stock" shall have the meaning assigned to it in the
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introduction to this Warrant, such term to include any stock into which such
Common Stock shall have been changed or any stock resulting from any
reclassification of such Common Stock, and all other stock of any class or
classes (however designated) of the Company the holders of which have the right,
without limitation as to amount, either to all or to a share of the balance of
current dividends and liquidating dividends after the payment of dividends and
distributions on any shares entitled to preference.
"Company" shall have the meaning assigned to it in the
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introduction to this Warrant, such term to include any corporation or other
entity which shall succeed to or assume the obligations of the Company hereunder
in compliance with Section 4.
"Convertible Securities" shall mean any evidences of
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indebtedness, shares of stock (other than Common Stock) or other securities
directly or indirectly convertible into or exchangeable for Additional Shares of
Common Stock.
"Current Market Price" shall mean, on any date specified
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herein, the average of the daily Closing Bid Prices for the Common Stock during
the 10 consecutive trading days commencing 15 trading days before such date,
except that, if on any such date the shares of Common Stock are not listed or
admitted for trading on any national securities exchange or quoted in the
over-the-counter market, the Current Market Price shall be the Fair Value on
such date.
"Exchange Act" shall mean the Securities Exchange Act of 1934,
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as amended from time to time, and the rules and regulations thereunder, or any
successor statute.
"Expiration Date" shall have the meaning assigned to it in the
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introduction to this Warrant.
"Fair Value" shall mean, on any date specified herein (i) in
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the case of cash, the dollar amount thereof, (ii) in the case of a security
admitted for trading on any national securities exchange or quoted in the
over-the-counter market, the Current Market Price, and (iii) in all other cases
as determined in good faith jointly by the Board of Directors of the Company and
the Holder; provided, however, that if such parties are unable to reach
agreement within a reasonable period of time, the Fair Value shall be determined
in good faith by an independent investment banking firm selected jointly by the
Company and the Holder or, if that selection cannot be made within ten days, by
an independent investment banking firm selected by the American Arbitration
Association in accordance with its rules, and provided further, that the Company
shall pay all of the fees and expenses of any third parties incurred in
connection with determining the Fair Value.
"Options" shall mean any rights, options or warrants to
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subscribe for, purchase or otherwise acquire either Additional Shares of Common
Stock or Convertible Securities.
"Other Securities" shall mean any stock (other than Common
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Stock) and other securities of the Company or any other Person (corporate or
otherwise) which the holders of the Warrants at any time shall be entitled to
receive, or shall have received, upon the exercise of the Warrants, in lieu of
or in addition to Common Stock, or which at any time shall be issuable or shall
have been issued in exchange for or in replacement of Common Stock or Other
Securities pursuant to Section 4 or otherwise.
"Person" shall mean any individual, firm, partnership,
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corporation, trust, joint venture, association, joint stock company, limited
liability company, unincorporated organization or any other entity or
organization, including a government or agency or political subdivision thereof,
and shall include any successor (by merger or otherwise) of such entity.
"Purchase Agreement" shall have the meaning assigned to it in
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the introduction to this Warrant.
"Purchase Price" shall mean the amount per share indicated in
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the introductory paragraph to this Warrant subject to adjustment and
readjustment from time to time as provided in Section 3, and, as so adjusted or
readjusted, shall remain in effect until a further adjustment or readjustment
thereof is required by Section 3.
"Registration Rights Agreement" shall mean the Registration
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Agreement dated as of September 8, 2000, substantially in the form of Exhibit C
to the Purchase Agreement.
"Rights" shall have the meaning assigned to it in Section 3.6.
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"Securities Act" shall mean the Securities Act of 1933, as
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amended from time to time, and the rules and regulations thereunder, or any
successor statute.
"Warrants" shall have the meaning assigned to it in the
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introduction to this Warrant.
2. EXERCISE OF WARRANT.
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2.1. Manner of Exercise; Payment of the Purchase Price. (a)
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This Warrant may be exercised by the Holder, in whole or in part, at any time or
from time to time on and after the date hereof and prior to the Expiration Date,
by surrendering to the Company at its principal office (or such other office or
agency of the Company as the Company may designate in a written notice to the
Holder) this Warrant, together with the form of Election to Purchase Shares
attached hereto as Exhibit A (or a reasonable facsimile thereof) duly executed
by the Holder (and if the Holder at the time of such exercise is not Baystar
International, Ltd. or Baystar Capital, L.P. or one of their respective
affiliates, such Holder shall have its signature guaranteed by an eligible
guarantor institution that is a member of a recognized medallion signature
guarantee program), and accompanied by payment of the Purchase Price as
described below for the number of shares of Common Stock specified in such form.
(b) Payment of the Purchase Price may be made in United
States currency by cash or delivery of a certified check or bank draft payable
to the order of the Company or by wire transfer to the account of the Company.
2.2. When Exercise Effective. Each exercise of this Warrant
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shall be deemed to have been effected immediately prior to the close of business
on the Business Day on which this Warrant shall have been surrendered to, and
the Purchase Price shall have been received by, the Company as provided in
Section 2.1, and at such time the Person or Persons in whose name or names any
certificate or certificates for shares of Common Stock (or Other Securities)
shall be issuable upon such exercise as provided in Section 2.3 shall be deemed
to have become the holder or holders of record thereof for all purposes.
2.3. Delivery of Stock Certificates, etc.; Charges, Taxes
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and Expenses. Subject to Section 2.5 (a) as soon as practicable after each
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exercise of this Warrant, in whole or in part, and in any event within five (5)
Business Days thereafter, the Company shall cause to be issued in such
denominations as may be requested by Holder in the Election to Purchase Shares,
in the name of and delivered to the Holder or, subject the Purchase Agreement,
as the Holder may direct,
(i) a certificate or certificates, or, if then permissible
under the Securities Act and if an electronic issuance can properly
reflect any legends required to be contained on such certificates, at a
Holder's request, to electronically issue such shares (e.g., through
DWAC or DTC), an electronic issuance for the number of shares of Common
Stock (or Other Securities) to which the Holder shall be entitled upon
such exercise plus, in lieu of issuance of any fractional share to
which the Holder would otherwise be entitled, if any, a company check
for the amount of cash equal to the same fraction multiplied by the
Current Market Price per share on the date of Warrant exercise,
provided, however, that in the event sufficient funds are not legally
available for the payment of such amount, the number of shares of
Common Stock for which such certificate(s) represents shall be rounded
up to the nearest whole number, and
(ii) in case such exercise is for less than all of the shares
of Common Stock purchasable under this Warrant, a new Warrant or
Warrants of like tenor, for the balance of the shares of Common Stock
purchasable hereunder.
(b) Issuance of certificates for shares of Common Stock upon
the exercise of this Warrant shall be made without charge to the Holder hereof
for any issue or transfer tax or other incidental expense, in respect of the
issuance of such certificates, all of which such taxes and expenses shall be
paid by the Company.
2.4. Company to Reaffirm Obligations. The Company shall, at
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the time of each exercise of this Warrant, upon the request of the Holder
hereof, acknowledge in writing its continuing obligation to afford to such
Holder all rights to which such Holder shall continue to be entitled after such
exercise in accordance with the terms of this Warrant, provided that if the
Holder of this Warrant shall fail to make any such request, such failure shall
not affect the continuing obligation of the Company to afford such rights to the
Holder.
2.5. Exercise Disputes. In the case of any dispute with
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respect to the number of shares to be issued upon exercise of this Warrant, the
Company shall promptly issue such number of shares of Common Stock that is not
disputed and shall submit the disputed determinations or arithmetic calculations
to the Holder via facsimile within five (5) Business Days of receipt of the
Holder's Election to Purchase Shares. If the Holder and the Company are unable
to agree as to the determination of the Purchase Price within five (5) Business
Days of such disputed determination or arithmetic calculation being submitted to
the Holder, then the Company shall in accordance with this Section, submit via
facsimile the disputed determination to an independent reputable accounting firm
of national standing, selected jointly by the Company and the Holder. The
Company shall cause such accounting firm to perform the determinations or
calculations and notify the Company and the Holder of the results within
forty-eight (48) hours from the time it receives the disputed determinations of
calculations. Such accounting firm's determination shall be binding upon all
parties absent manifest error. The Company shall then on the next Business Day
issue certificate(s) representing the appropriate number of shares of Common
Stock in accordance with such accounting firm's determination and this Section.
All fees and expenses of such determination and calculation shall be borne by
the Company.
2.6. Failure to Common Stock. If, at any time, the
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Holder of this Warrant submits this Warrant, an Election to Purchase Shares and
payment to the Company of the Purchase Price for each of the shares of Common
Stock specified in the Election to Purchase Shares in accordance with Section
2.1 above, and the Company, for any reason, fails to deliver, on or prior to the
last possible date which the Company could have issued such Common Stock to the
Holder without violating this Section 2, the number of shares of Common Stock
for which the Holder is entitled upon such exercise, the Company shall pay
damages to the Holder equal to the greater of (a) actual damages incurred by the
Holder as a result of the Holder's needing to "buy in" shares of Common Stock to
the extent necessary to satisfy its securities delivery requirements ("Buy In
Actual Damages") and (b) if the Company fails to deliver such certificates
within five days after the last possible date on which the Company could have
issued such Common Stock to the Holder without violating this Section 2, on each
date such exercise is not timely effected in an amount equal to 1% of the
product of (i) the number of shares of Common Stock not issued to the Holder on
a timely basis and to which the Holder is entitled and (ii) the Closing Bid
Price of the Common Stock on the last possible date which the Company could have
issued such Common Stock to the Holder without violating this Section 2.
3. ADJUSTMENT OF COMMON STOCK ISSUABLE UPON EXERCISE.
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3.1 Adjustment of Number of Shares. Upon each adjustment of
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the Purchase Price as a result of the calculations made in this Section 3, this
Warrant shall thereafter evidence the right to receive, at the adjusted Purchase
Price, that number of shares of Common Stock (calculated to the nearest
one-hundredth) obtained by dividing (i) the product of the aggregate number of
shares covered by this Warrant immediately prior to such adjustment and the
Purchase Price in effect immediately prior to such adjustment of the Purchase
Price by (ii) the Purchase Price in effect immediately after such adjustment of
the Purchase Price.
3.2. Treatment of Stock Dividends, Stock Splits, etc. In case
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the Company at any time or from time to time after the date hereof shall declare
or pay any dividend on the Common Stock payable in Common Stock, or shall effect
a subdivision of the outstanding shares of Common Stock into a greater number of
shares of Common Stock (by reclassification or otherwise than by payment of a
dividend in Common Stock), then, and in each such case, Additional Shares of
Common Stock shall be deemed to have been issued (a) in the case of any such
dividend, immediately after the close of business on the record date for the
determination of holders of any class of securities entitled to receive such
dividend, or (b) in the case of any such subdivision, at the close of business
on the day immediately prior to the day upon which such corporate action becomes
effective. Additional Shares of Common Stock deemed to have been issued pursuant
to Section 3.2, relating to stock dividends, stock splits, etc., shall be deemed
to have been issued for no consideration.
3.3. Adjustments for Combinations, etc. In case the
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outstanding shares of Common Stock shall be combined or consolidated, by
reclassification or otherwise, into a lesser number of shares of Common Stock,
the Purchase Price in effect immediately prior to such combination or
consolidation shall, concurrently with the effectiveness of such combination or
consolidation, be proportionately increased.
3.4. De Minimis Adjustments. If the amount of any adjustment
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of the Purchase Price per share required pursuant to this Section 3 would be
less than $.01, such amount shall be carried forward and adjustment with respect
thereto made at the time of and together with any subsequent adjustment which,
together with such amount and any other amount or amounts so carried forward,
shall aggregate a change in the Purchase Price of at least $.01 per share. All
calculations under this Warrant shall be made to the nearest .001 of a cent or
to the nearest one-hundredth of a share, as the case may be.
3.5. Abandoned Dividend or Distribution. If the Company shall
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take a record of the holders of its Common Stock for the purpose of entitling
them to receive a dividend or other distribution (which results in an adjustment
to the Purchase Price under the terms of this Warrant) and shall, thereafter,
and before such dividend or distribution is paid or delivered to stockholders
entitled thereto, legally abandon its plan to pay or deliver such dividend or
distribution, then any adjustment made to the Purchase Price and number of
shares of Common Stock purchasable upon Warrant exercise by reason of the taking
of such record shall be reversed, and any subsequent adjustments, based thereon,
shall be recomputed.
3.6. Shareholder Rights Plan. Notwithstanding the foregoing,
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in the event that the Company shall distribute "poison pill" rights pursuant to
a "poison pill" shareholder rights plan (the "Rights"), the Company shall make
proper provision so that each Holder who exercises a Warrant after the record
date for such distribution and prior to the expiration or redemption of the
Rights shall be entitled to receive upon such exercise, in addition to the
shares of Common Stock issuable upon such exercise, a number of Rights to be
determined as follows: (i) if such exercise occurs on or prior to the date for
the distribution to the holders of Rights of separate certificates evidencing
such Rights (the "Distribution Date"), the same number of Rights to which a
holder of a number of shares of Common Stock equal to the number of shares of
Common Stock issuable upon such exercise at the time of such exercise would be
entitled in accordance with the terms and provisions of and applicable to the
Rights; and (ii) if such exercise occurs after the Distribution Date, the same
number of Rights to which a holder of the number of shares into which the
Warrant so exercised was exercisable immediately prior to the Distribution Date
would have been entitled on the Distribution Date in accordance with the terms
and provisions of and applicable to the Rights, and in each case subject to the
terms and conditions of the Rights.
4. CONSOLIDATION, MERGER, ETC.
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4.1. Adjustments for Consolidation, Merger, Sale of Assets,
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Reorganization, etc. In case the Company after the date hereof (a) shall
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consolidate with or merge into any other Person and shall not be the continuing
or surviving corporation of such consolidation or merger, or (b) shall permit
any other Person to consolidate with or merge into the Company and the Company
shall be the continuing or surviving Person but, in connection with such
consolidation or merger, the Common Stock or Other Securities shall be changed
into or exchanged for stock or other securities of any other Person or cash or
any other property, or (c) shall transfer all or substantially all of its
properties or assets to any other Person, or (d) shall effect a capital
reorganization or reclassification of the Common Stock or Other Securities,
then, and in the case of each such transaction, proper provision shall be made
so that, upon the basis and the terms and in the manner provided in this
Warrant, the Holder of this Warrant, upon the exercise hereof at any time after
the consummation of such transaction shall be entitled to receive (at the
aggregate Purchase Price in effect at the time of such consummation for all
Common Stock or Other Securities issuable upon such exercise immediately prior
to such consummation), in lieu of the Common Stock or Other Securities issuable
upon such exercise prior to such consummation, the amount of securities, cash or
other property to which such Holder would actually have been entitled as a
stockholder upon such consummation if such Holder had exercised this Warrant
immediately prior thereto, subject to adjustments (subsequent to such
consummation) as nearly equivalent as possible to the adjustments provided for
in Sections 3 through 5.
4.2. Assumption of Obligations. Notwithstanding anything
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contained in this Warrant or in the Purchase Agreement to the contrary, the
Company shall not effect any of the transactions described in clauses (a)
through (d) of Section 4.1 unless, prior to the consummation thereof, each
Person (other than the Company) which may be required to deliver any stock,
securities, cash or property upon the exercise of this Warrant as provided
herein shall assume, by written instrument delivered to, and reasonably
satisfactory to, the Holder of this Warrant, (a) the obligations of the Company
under this Warrant, (b) the obligations of the Company under the Purchase
Agreement and the Registration Rights Agreement and (c) the obligation to
deliver to the Holder such shares of stock, securities, cash or property as, in
accordance with the foregoing provisions of this Section 4, the Holder may be
entitled to receive. Nothing in this Section 4 shall be deemed to authorize the
Company to enter into any transaction not otherwise permitted by the Purchase
Agreement.
5. NO DILUTION OR IMPAIRMENT. The Company shall not, by
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amendment of its certificate of incorporation or through any consolidation,
merger, reorganization, transfer of assets, dissolution, issue or sale of
securities or any other voluntary action, avoid or seek to avoid the observance
or performance of any of the terms of this Warrant, but will at all times in
good faith assist in the carrying out of all such terms and in the taking of all
such action as may be reasonably necessary or appropriate in order to protect
the rights of the Holder of this Warrant against dilution or other impairment.
Without limiting the generality of the foregoing, the Company (a) shall not
permit the par value of any shares of stock receivable upon the exercise of this
Warrant to exceed the amount payable therefor upon such exercise, (b) shall take
all such action as may be necessary or appropriate in order that the Company may
validly and legally issue fully paid and nonassessable shares of stock, free
from all taxes, liens, security interests, encumbrances, preemptive rights and
charges on the exercise of the Warrants from time to time outstanding, and (c)
shall not take any action which results in any adjustment of the Purchase Price
if the total number of shares of Common Stock (or Other Securities) issuable
after the action upon the exercise of all of the Warrants would exceed the total
number of shares of Common Stock (or Other Securities) then authorized by the
Company's certificate of incorporation and available for the purpose of issue
upon such exercise.
6. CERTIFICATE AS TO ADJUSTMENTS. In each case of any
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adjustment or readjustment in the shares of Common Stock (or Other Securities)
issuable upon the exercise of this Warrant, the Company at its expense shall
promptly compute such adjustment or readjustment in accordance with the terms of
this Warrant and prepare a certificate, signed by the Chief Financial Officer,
the Treasurer or one of the Assistant Treasurers of the Company, setting forth
such adjustment or readjustment and showing in reasonable detail the method of
calculation thereof and the facts upon which such adjustment or readjustment is
based, including a statement of (a) the consideration received or to be received
by the Company for any Additional Shares of Common Stock issued or sold or
deemed to have been issued, (b) the number of shares of Common Stock outstanding
or deemed to be outstanding, and (c) the Purchase Price in effect immediately
prior to such issue or sale and as adjusted and readjusted (if required by
Section 3) on account thereof. The Company shall forthwith mail a copy of each
such certificate to each holder of a Warrant and shall, upon the written request
at any time of any holder of a Warrant, furnish to such holder a like
certificate. The Company shall also keep copies of all such certificates at its
principal office and shall cause the same to be available for inspection at such
office during normal business hours by any holder of a Warrant or any
prospective purchaser of a Warrant designated by the holder thereof. The Company
shall, upon the request in writing of the Holder (at the Company's expense),
retain independent public accountants of recognized national standing selected
by the Board of Directors of the Company to make any computation required in
connection with adjustments under this Warrant, and a certificate signed by such
firm shall be conclusive evidence of the correctness of such adjustment, which
shall be binding on the Holder and the Company.
7. NOTICES OF CORPORATE ACTION. In the event of:
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(a) any taking by the Company of a record of the holders of
any class of securities for the purpose of determining the holders
thereof who are entitled to receive any dividend or other distribution,
or any right to subscribe for, purchase or otherwise acquire any shares
of stock of any class or any other securities or property, or to
receive any other right, or
(b) any capital reorganization of the Company, any
reclassification or recapitalization of the capital stock of the
Company, any consolidation or merger involving the Company and any
other Person, any transaction or series of transactions in which more
than 50% of the voting securities of the Company are transferred to
another Person, or any transfer, sale or other disposition of all or
substantially all the assets of the Company to any other Person, or
(c) any voluntary or involuntary dissolution, liquidation or
winding-up of the Company,
the Company shall mail to each holder of a Warrant a notice specifying (i) the
date or expected date on which any such record is to be taken for the purpose of
such dividend, distribution or right, and the amount and character of such
dividend, distribution or right, and (ii) the date or expected date on which any
such reorganization, reclassification, recapitalization, consolidation, merger,
transfer, sale, disposition, dissolution, liquidation or winding-up is to take
place and the time, if any such time is to be fixed, as of which the holders of
record of Common Stock (or Other Securities) shall be entitled to exchange their
shares of Common Stock (or Other Securities) for the securities or other
property deliverable upon such reorganization, reclassification,
recapitalization, consolidation, merger, transfer, dissolution, liquidation or
winding-up. Such notice shall be mailed at least 20 days prior to the date
therein specified but in no event earlier than the public announcement of such
proposed transaction or event.
8. RESERVATION OF STOCK, ETC. The Company shall at all
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times reserve and keep available, solely for issuance and delivery upon exercise
of this Warrant, 125% of the number of shares of Common Stock (or Other
Securities) from time to time issuable upon exercise of this Warrant at the time
outstanding and otherwise in accordance with the terms of the Purchase
Agreement. All shares of Common Stock (or Other Securities) issuable upon
exercise of this Warrant shall be duly authorized and, when issued upon such
exercise, shall be validly issued and, in the case of shares, fully paid and
nonassessable with no liability on the part of the holders thereof, and, in the
case of all securities, shall be free from all taxes, liens, security interests,
encumbrances, preemptive rights and charges. The transfer agent for the Common
Stock, which may be the Company (the "Transfer Agent"), and every subsequent
Transfer Agent for any shares of the Company's capital stock issuable upon the
exercise of any of the purchase rights represented by this Warrant, are hereby
irrevocably authorized and directed at all times until the Expiration Date to
reserve such number of authorized and unissued shares as shall be requisite for
such purpose. The Company shall keep copies of this Warrant on file with the
Transfer Agent for the Common Stock and with every subsequent Transfer Agent for
any shares of the Company's capital stock issuable upon the exercise of the
rights of purchase represented by this Warrant. The Company shall supply such
Transfer Agent with duly executed stock certificates for such purpose.
Subsequent to the Expiration Date, no shares of stock need be reserved in
respect of any unexercised Warrant.
9. COMPLIANCE WITH SECURITIES LAWS.
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(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:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR ANY STATE SECURITIES
LAWS. THE SECURITIES MAY NOT BE OFFERED FOR SALE, SOLD, TRANSFERRED OR ASSIGNED
IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT FOR THE SECURITIES UNDER
THE SECURITIES ACT OF 1933, AS AMENDED, OR APPLICABLE STATE SECURITIES LAWS, OR
AN APPLICABLE EXEMPTION TO THE REGISTRATION REQUIREMENTS OF SUCH ACT AND SUCH
LAWS EVIDENCED BY A LEGAL OPINION IN A FORM AND IN SUBSTANCE REASONABLY
ACCEPTABLE TO THE COMPANY.
10. TRANSFER OF WARRANTS, ETC.
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10.1. Transfer of Warrants. This Warrant and all rights
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hereunder are transferable in whole or in part, without charge to the Holder
hereof, upon surrender of this Warrant with a properly executed Form of
Assignment attached hereto as Exhibit B at the principal office of the Company
(or such other office or agency of the Company as it may in writing designate to
the Holder); provided, that such transfer is in compliance with all state and
federal securities laws evidenced by an opinion of counsel in a form reasonably
satisfactory to the Company. Upon any partial transfer, the Company shall at its
expense issue and deliver to the Holder a new Warrant of like tenor, in the name
of the Holder, which shall be exercisable for such number of shares of Common
Stock with respect to which rights under this Warrant were not so transferred
and to the transferee a new Warrant of like tenor, in the name of the
transferee, which shall be exercisable for such number of shares of Common Stock
with respect to which rights under this Warrant were so transferred.
10.2. Replacement of Warrants. On receipt by the Company of
-----------------------
evidence reasonably satisfactory to the Company of the loss, theft, destruction
or mutilation of this Warrant and, in the case of any such loss, theft or
destruction of this Warrant, on delivery of an indemnity agreement reasonably
satisfactory in form and amount to the Company or, in the case of any such
mutilation, on surrender of such Warrant to the Company at its principal office
and cancellation thereof, the Company at its expense shall execute and deliver,
in lieu thereof, a new Warrant of like tenor.
10.3. Adjustments To Purchase Price and Number of Shares.
----------------------------------------------------
Notwithstanding any adjustment in the Purchase Price or in the number or kind of
shares of Common Stock purchasable upon exercise of this Warrant, any Warrant
theretofore or thereafter issued may continue to express the same number and
kind of shares of Common Stock as are stated in this Warrant, as initially
issued.
10.4. Fractional Shares. Notwithstanding any adjustment
------------------
pursuant to Section 3 in the number of shares of Common Stock covered by this
Warrant or any other provision of this Warrant, the Company shall not be
required to issue fractions of shares upon exercise of this Warrant or to
distribute certificates which evidence fractional shares. In lieu of fractional
shares, the Company shall make payment to the Holder, at the time of exercise of
this Warrant as herein provided, in an amount in cash equal to such fraction
multiplied by the Current Market Price of a share of Common Stock on the date of
Warrant exercise.
11. Remedies; Specific Performance. The Company stipulates
-------------------------------
that there would be no adequate remedy at law to the Holder of this Warrant in
the event of any default or threatened default by the Company in the performance
of or compliance with any of the terms of this Warrant and accordingly, the
Company agrees that, in addition to any other remedy to which the Holder may be
entitled at law or in equity, the Holder shall be entitled to seek to compel
specific performance of the obligations of the Company under this Warrant,
without the posting of any bond, in accordance with the terms and conditions of
this Warrant in any court of the United States or any State thereof having
jurisdiction, and if any action should be brought in equity to enforce any of
the provisions of this Warrant, the Company shall not raise the defense that
there is an adequate remedy at law. Except as otherwise provided by law, a delay
or omission by the Holder hereof in exercising any right or remedy accruing upon
any such breach shall not impair the right or remedy or constitute a waiver of
or acquiescence in any such breach. No remedy shall be exclusive of any other
remedy. All available remedies shall be cumulative.
12. No Rights or Liabilities as Shareholder. Nothing
---------------------------------------
contained in this Warrant shall be construed as conferring upon the Holder
hereof any rights as a stockholder of the Company or as imposing any
obligation on the Holder to purchase any securities or as imposing any
liabilities on the Holder as a stockholder of the Company, whether such
obligation or liabilities are asserted by the Company or by creditors of the
Company.
13. Notices. Any notices, consents, waivers or other
-------
communications required or permitted to be given hereunder must be in writing
and will be deemed to have been delivered (i) upon receipt, when delivered
personally; (ii) upon receipt, when sent by facsimile, (iii) three days after
being sent by U.S. certified mail, return receipt requested, or (iv) one
Business Day after deposit with a nationally recognized overnight delivery
service, in each case properly addressed to the party to receive the same. The
addresses and facsimile numbers for such communications shall be:
If to the Company:
LaserSight Incorporated
0000 Xxxxxxxxxx Xxxxxxxxx
Xxxxxx Xxxx, Xxxxxxx 00000
Telephone: (000) 000-0000
Facsimile: (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
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attn: Xxxxxxx X. Xxxxxxx, Esq.
If to a Holder, to its address and facsimile number on the
register maintained by the Company. Each party shall provide five days' prior
written notice to the other party of any change in address or facsimile number.
Notwithstanding the foregoing, the exercise of any Warrant shall be effective in
the manner provided in Section 2.
14. AMENDMENTS. This Warrant and any term hereof may not be
----------
amended, modified, supplemented or terminated, and waivers or consents to
departures from the provisions hereof may not be given, except by written
instrument duly executed by the party against which enforcement of such
amendment, modification, supplement, termination or consent to departure is
sought.
15. DESCRIPTIVE HEADINGS, ETC. The headings in this
---------------------------
Warrant are for convenience of reference only and shall not limit or otherwise
affect the meaning of terms contained herein. Unless the context of this
Warrant otherwise requires: (1) words of any gender shall be deemed to
include each other gender; (2) words using the singular or plural number
shall also include the plural or singular number, respectively; (3) the words
"hereof", "herein" and "hereunder" and words of similar import when used in
this Warrant shall refer to this Warrant as a whole and not to any particular
provision of this Warrant, and Section and paragraph references are to the
Sections and paragraphs of this Warrant unless otherwise specified; (4) the
word "including" and words of similar import when used in this Warrant shall
mean "including, without limitation," unless otherwise specified; (5) "or"
is not exclusive; and (6) provisions apply to successive events and
transactions.
16. GOVERNING LAW. This Warrant shall be governed by, and
-------------
construed in accordance with, the laws of the State of Delaware (without giving
effect to the conflict of laws principles thereof).
17. REGISTRATION RIGHTS AGREEMENT. The shares of Common
-----------------------------
Stock (and Other Securities) issuable upon exercise of this Warrant (or
upon conversion of any shares of Common Stock issued upon such exercise)
shall constitute Registrable Securities (as such term is defined in the
Registration Rights Agreement). Each holder of this Warrant shall be entitled
to all of the benefits afforded to a holder of any such Registrable
Securities under the Registration Rights Agreement and such holder, by
its acceptance of this Warrant, agrees to be bound by and to comply with the
terms and conditions of the Registration Rights Agreement applicable to such
holder as a holder of such Registrable Securities.
18. JUDICIAL PROCEEDINGS. Any legal action, suit or
--------------------
proceeding brought against the Company with respect to this Warrant may be
brought in any federal court of the District of Delaware or any state
court located in Wilmington County, State of Delaware, and by execution and
delivery of this Warrant, the Company hereby irrevocably and unconditionally
waives any claim (by way of motion, as a defense or otherwise) of improper
venue, that it is not subject personally to the jurisdiction of such court,
that such courts are an inconvenient forum or that this Warrant or the
subject matter may not be enforced in or by such court. The Company hereby
irrevocably and unconditionally consents to the service of process of any of
the aforementioned courts in any such action, suit or proceeding by the
mailing of copies thereof by registered or certified mail, postage prepaid,
at its address set forth or provided for in Section 13, such service to become
effective 10 days after such mailing. Nothing herein contained shall be
deemed to affect the right of any party to serve process in any manner
permitted by law or commence legal proceedings or otherwise proceed
against any other party in any other jurisdiction to enforce judgments obtained
in any action, suit or proceeding brought pursuant to this Section. The
Company irrevocably submits to the exclusive jurisdiction of the
aforementioned courts in such action, suit or proceeding.
19. LIMITATION ON EXERCISE. Notwithstanding any provision to
----------------------
the contrary contained herein, in no event shall the Holder be entitled to
exercise this Warrant, nor will the Company recognize such exercise, such that
upon giving effect to such exercise, the aggregate number of shares of Common
Stock then beneficially owned by the Holder and its "affiliates" as defined in
Rule 144 of the Act would exceed 4.99% of the total issued and outstanding
shares of the Common Stock following such exercise; provided, however, that
Holder may elect to waive this restriction upon not less than sixty-one (61)
days prior written notice to the Company. For purposes of this Section,
beneficial ownership shall be calculated in accordance with Section 13(d) of the
Exchange Act.
LASERSIGHT INCORPORATED
By:/s/Xxxxxxx X. Xxxxxx
---------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Chief Executive Officer
[FORM OF]
ELECTION TO PURCHASE SHARES
AND TRANSFER AGENT INSTRUCTIONS
The undersigned hereby irrevocably elects to exercise the
Warrant to purchase ____ shares of Common Stock, par value $.001 per share
("Common Stock"), of LASERSIGHT INCORPORATED (the "Company") and hereby [makes
payment of $________ in consideration therefor]. The undersigned hereby requests
that certificates for such shares be issued and delivered as follows:
ISSUE TO:_______________________________________________________________________
(NAME)
________________________________________________________________________________
(ADDRESS, INCLUDING ZIP CODE)
________________________________________________________________________________
(SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER)
DELIVER TO:_____________________________________________________________________
(NAME)
________________________________________________________________________________
(ADDRESS, INCLUDING ZIP CODE)
If the number of shares of Common Stock purchased hereby is
less than the number of shares of Common Stock covered by the Warrant, the
undersigned requests that a new Warrant representing the number of shares of
Common Stock not so purchased be issued and delivered as follows:
ISSUE TO:_______________________________________________________________________
(NAME OF HOLDER)
________________________________________________________________________________
(ADDRESS, INCLUDING ZIP CODE)
DELIVER TO:_____________________________________________________________________
(NAME OF HOLDER)
________________________________________________________________________________
(ADDRESS, INCLUDING ZIP CODE)
Dated: _____________________ [NAME OF HOLDER]
By:
------------------------------
Name:
Title:
__________________, as transfer agent and registrar of the Common
Stock, is hereby authorized and directed to issue the above number of shares of
Common Stock in the name of the above referenced entity or person and to deliver
the certificates representing such shares using an overnight delivery service.
LASERSIGHT INCORPORATED
By:
------------------------------
Name:
Title:
EXHIBIT B to
Common Stock Purchase
---------------------
Warrant
-------
[FORM OF] ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sells, assigns, and
transfers unto the Assignee named below all of the rights of the undersigned to
purchase Common Stock, par value $.001 per share ("Common Stock") of LASERSIGHT
INCORPORATED represented by the Warrant, with respect to the number of shares of
Common Stock set forth below:
Name of Assignee Address No. of Shares
---------------- ------- -------------
and does hereby irrevocably constitute and appoint ________ as Attorney to make
such transfer on the books of LASERSIGHT INCORPORATED maintained for that
purpose, with full power of substitution in the premises.
Dated: ____________________ [NAME OF HOLDER]
By:_____________________________
Name:
Title:
