EXHIBIT 99.5
THIRD AMENDMENT TO RIGHTS AGREEMENT
THIS THIRD 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 29th day of June, 2001.
WHEREAS, the Company proposes to enter into that certain Securities
Purchase Agreement dated as of July 6, 2001 (the "BayStar Securities Purchase
Agreement") with BayStar Capital, L.P. and BayStar International, Ltd.
(collectively, the "Purchaser"), and following the consummation of the
transactions contemplated by the BayStar 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 BayStar Securities Purchase Agreement be consummated on the
terms set forth in the BayStar Securities Purchase Agreement;
WHEREAS, the Board of Directors of the Company desires to amend the
Rights Agreement such that the execution of the BayStar 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 BayStar 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 BayStar 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 BayStar
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
BayStar 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 BayStar 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 BayStar 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 BayStar 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 BayStar 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/Xxxxxx X. Xxxxxx By: /s/Xxxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx Name: Xxxxxxx X. Xxxxxx
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Title: Assistant Secretary Title: Chief Executive Officer
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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
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Title: Assistant Secretary Title: Vice President
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