EXHIBIT 10.59
THIS WARRANT AND ANY SECURITIES ACQUIRED UPON THE EXERCISE OF THIS WARRANT HAVE
NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR
THE SECURITIES LAWS OF ANY STATE. NEITHER THIS WARRANT, SUCH SECURITIES NOR ANY
INTEREST THEREIN MAY BE TRANSFERRED EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT UNDER THE ACT AND APPLICABLE STATE SECURITIES LAWS OR PURSUANT TO AN
APPLICABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE ACT AND SUCH
STATE SECURITIES LAWS EVIDENCED BY AN OPINION OF LEGAL COUNSEL SATISFACTORY TO
THE COMPANY.
LASERSIGHT INCORPORATED
COMMON STOCK PURCHASE WARRANT
---------------------------------------------
This warrant (this "Warrant") certifies that, for good and
valuable consideration, LASERSIGHT INCORPORATED, a Delaware corporation (the
"Company"), grants to XXXXXX HEALTHCARE FINANCE, INC., a Delaware corporation,
or its permitted assigns (the "Warrantholder"), the right to subscribe for and
purchase from the Company, at any time during the Exercise Period (as defined
herein), 243,750 validly issued, fully paid and nonassessable shares of Common
Stock (the "Warrant Shares"), at the exercise price per share of $3.15 (the
"Exercise Price"), all subject to the terms, conditions and adjustments herein
set forth. The number of Warrant Shares and the Exercise Price are subject to
adjustment as provided in Articles III and VI.
I. DEFINITIONS
1.1 Definitions. As used herein, unless the context
-----------
otherwise requires, the followingterms have the following respective
meanings:
"Affiliate" means with respect to a specified
---------
person, any person directly orindirectly controlling, controlled by, or
under common control with the specified person, including without limitation its
stockholders and any affiliates. A person shall be deemed to control a
corporation if the person possesses, directly or indirectly, the power to direct
or cause the direction of the management and business of the corporation whether
through the ownership of voting securities, by contract, or otherwise.
"Board of Directors" means the Board of Directors of
------------------
the Company.
"Business Day" means any day other than a Saturday,
------------
Sunday or a day on which financial institutions are authorized or required by
law to close in the State of Maryland.
"Capital Event" means: (a) any sale, lease,
--------------
exchange or other transfer of all or substantially all of the property,
assets or business of the Company; (b) any liquidation, dissolution or winding
up of the Company, whether voluntary or involuntary; (c) any merger,
consolidation or other business combination to which the Company is a party and
which the holders of the voting securities of the Company immediately prior to
such merger, consolidation or other business combination own, directly or
indirectly, less than a majority of the outstanding voting securities of the
urviving entity immediately following such transaction; or (d) any Person or
group (as such term is used in Section 13(d) of the Exchange Act) of Persons,
other than Affiliates of the Company, acquiring beneficial ownership (as defined
in Rule 13d-3 under the Exchange Act) of securities of the Company representing
fifty percent (50%) or more of the voting securities of the Company then
Outstanding. For purposes of the preceding sentence, "voting securities" shall
mean securities, the holders of which are ordinarily, in the absence of
contingencies, entitled to elect the corporate directors (or Persons performing
similar functions).
"Common Stock" means the common stock, par value
------------
$0.001 per share, of the Company.
"Exchange Act" mean the Securities Exchange Act of
------------
1934, as amended from time to time.
"Fair Market Value" means, with respect to a
-------------------
share of Common Stock on any date, either: (a) if there shall not then be a
public market for the Common Stock, the fair market value per share of Common
Stock as determined by the Board of Directors in good faith exercising its
fiduciary duties; or (b) if there shall then be a public market for the Common
Stock, the average of the Daily Market Prices (as defined below) for the five
(5) consecutive Business Days immediately prior to such date. The "Daily Market
Price" for each such Business Day shall be: (i) the last sale price on such day
on the principal stock exchange or the NASDAQ National Market System (the
"NASDAQ-NMS") on which the Common Stock is then listed or admitted to trading;
(ii) if no sale takes place on such day on any such exchange or the NASDAQ-NMS,
the average of the last reported closing bid and ask prices on such day as
officially quoted on any such exchange or the NASDAQ-NMS; (iii) if the Common
Stock is not then listed or admitted to trading on any stock exchange or the
NASDAQ-NMS, the average of the last reported closing bid and ask prices on such
day in the over-the-counter market as furnished by the NASDAQ or the National
Quotation Bureau, Inc.; (iv) if neither NASDAQ nor the National Quotation
Bureau, Inc. is, at the time, engaged in the business of reporting bid and ask
prices, as furnished by any similar firm then engaged in such business; or (v)
if there is no such firm, as furnished by any member of the National Association
of Securities Dealers (the "NASD") selected by the Warrantholder and the Company
or, if they cannot agree upon such selection, the average furnished by two such
members of the NASD, one of which shall be selected by the Warrantholder and one
of which shall be selected by the Company.
"Governmental Authority" means any foreign,
------------------------
federal, state, local or other governmental authority or regulatory body
having jurisdiction over the Company, its Affiliates and the Warrantholder.
"Outstanding" means, when used with reference to
-----------
Common Stock, on any date, all issued shares of Common Stock on such date,
except shares then owned or held by or for the account of the Company, and shall
include all shares issuable in respect of outstanding scrip or any certificates
representing fractional interests in shares of Common Stock.
"Person" means any individual, firm,
------
corporation, partnership, limited liability company, trust, incorporated or
unincorporated association, joint venture, joint stock company, governmental
authority or other entity of any kind, and shall include any successor (by
merger or otherwise) of such entity.
"Registration Rights Agreement" means the
------------------------------
Registration Rights Agreement, dated as of March 12, 2001 by and between the
Company and the Warrantholder, as amended from time to time.
"Securities Act" means the Securities Act of 1933, as
--------------
amended from time to time.
II. EXERCISE OF WARRANT
2.1 Exercise Period. The Warrantholder may exercise
----------------
this Warrant on any Business Day starting the date hereof and ending at
5:00 p.m., Eastern Standard Time, on March 12, 2004 (the "Exercise
Period"), for all or any part of the Warrant Shares.
2.2 Exercise Procedure. To exercise this Warrant, the
------------------
Warrantholder shall deliver to the Company at its address set forth in Section
11.5: (a) payment of the aggregate Exercise Price (as defined above); (b) an
executed Notice of Exercise in substantially the form attached hereto as Annex
I, with the Warrantholder's signature either notarized or guaranteed by an
eligible guarantor institution that is a member of a recognized medallion
signature guarantee program; and (c) this Warrant. Upon receipt of the aggregate
Exercise Price and the required deliverables pursuant to the preceding sentence,
the Company shall, as promptly as is practicable (and in any event within five
(5) Business Days thereof) deliver to the Warrantholder duly executed
certificate(s) representing the aggregate number of full Warrant Shares issuable
upon such exercise together with cash in lieu of any fraction of a Warrant
Share, as provided in Section 2.5. Such stock certificate(s) shall be in such
denominations and registered in the name(s) set forth in the Notice of Exercise,
subject to applicable laws and transfer restrictions. The Warrantholder shall be
deemed to have become a holder of record of such Warrant Shares for all purposes
as of the date on which all required deliverables pursuant to this Section 2.2
have been received by the Company and all taxes required to be paid by the
Warrantholder, if any, pursuant to Section 2.4 have been paid. If this Warrant
shall have been exercised in part, the Company shall deliver to the
Warrantholder a new warrant evidencing the rights of the Warrantholder to
purchase the remaining Warrant Shares issuable (which shall in all other
respects be identical to this Warrant).
2.3 Payment of Exercise Price. Subject to the terms and
-------------------------
conditions set forth herein, this Warrant may be exercised, in whole or in part,
by the Warrantholder at any time during the Exercise Period by delivery of the
required deliverables pursuant to Section 2.2, along with either:
(a) the delivery by certified check or by wire
transfer of immediately available funds to the account of the Company of the
aggregate exercise price of this Warrant (as computed by multiplying (i) the
Exercise Price as of such date by (ii) the number of Warrant Shares for which
the Warrantholder is exercising this Warrant); or
(b) the surrender to the Company of this
Warrant in which event the Warrantholder shall receive a number of Warrant
Shares equal to the product of (x) the number of Warrant Shares for which this
Warrant is being surrendered by the Warrantholder and (y) a fraction (A) the
numerator of which is the difference between the Exercise Price and the Fair
Market Value per share of Common Stock as of the date of such exercise, and (B)
the denominator of which is the Fair Market Value per share of Common Stock as
of the date of such exercise.
2.4 Payment of Taxes. The Company shall pay all expenses,
----------------
taxes and other governmental charges with respect to the issue or delivery of
the Warrant Shares, unless such tax or charge is required by law to be imposed
upon the Warrantholder. The Company shall not be required, however, to pay any
transfer tax or other similar charge imposed in connection with the issue of any
certificate for Warrant Shares in any name other than that of the Warrantholder,
and in such case the Company shall not be required to issue or deliver any stock
certificate until such tax or other charge has been paid or it has been
established to the reasonable satisfaction of the Company that no such tax or
other charge is due.
2.5 Fractional Shares. The Company shall not be required
-----------------
to issue any fractional Warrant Shares upon exercise of this Warrant. As to any
fractional Warrant Share that the Warrantholder would otherwise be entitled to
purchase upon its exercise, in whole or in part of this Warrant, the Company
shall make a cash payment in an amount equal to the product of (a) the Fair
Market Value per share of Common Stock on the date of exercise multiplied by (b)
the fraction of a share.
III. ADJUSTMENTS
3.1 Introduction. The number of Warrant Shares and the
------------
Exercise Price of this Warrant shall be subject to adjustment from time to time
as set forth in this Article III. The Company shall give the Warrantholder
notice of any event described below which requires an adjustment pursuant to
this Article III in accordance with Section 4.2.
3.2 Adjustment of Exercise Price and Warrant Shares for
---------------------------------------------------
Stock Dividends, Subdivisions and Combinations. If, at any time during the
----------------------------------------------
Exercise Period, the Company shall: (a) take a record of the holders of Common
Stock for the purpose of entitling them to receive a dividend payable in, or
other distribution of, Common Stock; (b) subdivide or split its Outstanding
shares of Common Stock into a larger number of shares of Common Stock; or (c)
combine or reclassify its Outstanding shares of Common Stock into a smaller
number of shares of Common Stock, then: (i) the number of Warrant Shares for
which this Warrant is exercisable upon the occurrence of any such event shall be
adjusted to equal the product of (A) the number of Warrant Shares (without
giving effect to such event) multiplied by (B) a fraction the numerator of which
is the number of Outstanding shares of Common Stock after giving effect to such
event and the denominator of which the number of Outstanding shares of Common
Stock without giving effect to such event; and (ii) the Exercise Price shall be
adjusted to equal the product of (A) the Exercise Price (without giving effect
to such adjustment) multiplied by (B) a fraction the numerator of which is the
number of Warrant Shares without giving effect to such event and the denominator
of which is the number of Warrant Shares after giving effect to such event.
3.3 Adjustment of Exercise Price and Warrant Shares Upon
-------------------------------------------------------------
Certain Distributions. If, at any time during the Exercise Period, the Company
---------------------
shall distribute to all holders of shares of Common Stock cash, evidences of
indebtedness of the Company or another issuer, securities of the Company or
another issuer or other assets or rights or warrants to subscribe for or
purchase securities of the Company (excluding distributions that result in
adjustment pursuant to Section 3.2) (the "Distributed Items"), then the Exercise
Price shall be adjusted according to the following formula:
Exercise Price = Exercise Price x (Fair Market Value of a Warrant Share -
---------------------------------------------------------
FMV of Distributed Items)
-------------------------
Fair Market Value of a Warrant Share
For purposes of this Section 3.3, the term "FMV of Distributed
Items" shall mean the fair market value of the Distributed Items to which the
holder of one share of Common Stock would be entitled to receive in such
distribution, as determined by the Board of Directors in good faith exercising
their fiduciary duties.
Upon the occurrence of an adjustment of the Exercise Price
pursuant to this Section 3.3, the number of Warrant Shares shall be adjusted
according to the following formula:
(Warrant Shares) = Warrant Shares x Exercise Price (without adjustment)
-----------------------------------------------------------------------
Exercise Price (giving effect to adjustment)
3.4 When Adjustments Are To Be Made. Adjustments
---------------------------------
pursuant to this Article III shall be made whenever and as often as any event
necessitating an adjustment shall occur, except that any such adjustment may be
postponed until the earlier of: (a) three years following the date of such
event; or (b) the date of exercise of this Warrant, in neither case, if such
adjustment either by itself or together with other such adjustments not
previously made would add or subtract less than one percent (1%) of the number
of Warrant Shares for which this Warrant is exercisable immediately prior to
the making of such adjustment. Any such postponed adjustment shall be carried
forward and made on the earliest of: (x) the date of exercise of this Warrant;
(y) the date on which such postponed adjustment, together with any other
required but unmade adjustments, would result in an adjustment of sufficient
magnitude to be required to be made pursuant to this Section 3.4; or (z) three
years following the date of the event necessitating the adjustment. For the
purpose of this Section 3.4, an event necessitating an adjustment shall be
deemed to have occurred at the close of business on the date of its occurrence.
IV. NOTICES TO THE WARRANTHOLDER
4.1 Notice of Capital Event. If, at any time during the
-----------------------
Exercise Period, there shall be a Capital Event and such Capital Event shall
have been publicly disclosed, then, not less than sixty (60) days prior to the
anticipated consummation date of such Capital Event, the Company shall notify
the Warrantholder and such notice shall: (a) set forth, in reasonable detail,
the circumstances surrounding the Capital Event; (b) set forth, if applicable,
the time, if any such time is to be fixed, as of which the holders of Common
Stock shall be entitled to exchange their shares of Common Stock for securities
or other property deliverable upon such Capital Event; and (c) if applicable,
identify the number and kind of other shares of stock or other securities or
property for which the warrant of the Successor (as defined in Section 6.2)
issued to the Warrantholder in exchange for this Warrant upon such Capital Event
pursuant to Section 6.2 will be exercisable.
4.2 Notice of Adjustments. Whenever an event
---------------------
necessitating an adjustment to this Warrant pursuant to Article III occurs
(regardless of whether such adjustment may be postponed pursuant to Section
3.4), the Company shall, not less than thirty (30) days prior to the occurrence
of the event necessitating such adjustment, deliver to the Warrantholder a
certificate executed by an officer of the Company: (a) setting forth, in
reasonable detail, the event necessitating such adjustment and the method by
which such adjustment will be calculated; and (b) specifying the number of
Warrant Shares and the Exercise Price, in each case giving effect to the
adjustment.
4.3 Maintenance of Officers' Certificates. The Company
-------------------------------------
shall keep at its office located at the address set forth in Section 11.5 copies
of all officers' certificates provided to the Warrantholder pursuant to Sections
4.1, 4.2 and 4.3 and cause the same to be available for inspection at said
office during normal business hours by the Warrantholder or any prospective
purchaser of this Warrant designated by the Warrantholder.
V. RESTRICTIONS ON TRANSFER
5.1 Restrictions on Transfer. The Warrantholder, by its
------------------------
acceptance of this Warrant, agrees to be bound by the provisions of this Article
V and acknowledges and confirms that this Warrant and any Warrant Shares issued
or issuable upon exercise of all or part of this Warrant have not been
registered under the Securities Act or any applicable state securities laws, and
may not be sold or transferred except in compliance with and subject to the
Securities Act and such state securities laws. Unless and until the Warrant
Shares have been transferred in a transaction registered under the Securities
Act and such state securities laws, the Company may require, as a condition to
effecting any sale or transfer of this Warrant or the Warrant Shares on the
books of the Company, an opinion of counsel reasonably satisfactory to the
Company to the effect that an exemption from registration under the Securities
Act and such state securities laws is available for the proposed transfer or
assignment. Any purported sale or transfer of this Warrant and/or such Warrant
Shares shall be null and void unless made in compliance with the conditions set
forth in this Article V.
5.2 Restrictive Legend. Except as provided in Section
------------------
5.3, this Warrant and any warrant of the Company issued in exchange or
replacement for this Warrant and any certificates representing the Warrant
Shares or other securities issued pursuant to this Warrant shall be stamped or
otherwise imprinted with a legend in substantially the form set forth in capital
letters at the top of the first page of this Warrant.
5.3 Termination of Restrictions. The restrictions imposed
---------------------------
by this Article V upon the transferability of this Warrant and the Warrant
Shares, and the legend requirements of Section 5.2, shall terminate as to this
Warrant or any Warrant Shares: (a) when and so long as the Warrant Shares shall
have been transferred in a transaction registered under the Securities Act; or
(b) when the Company shall have received an opinion of counsel reasonably
satisfactory to it that the Warrant Shares do not constitute "restricted
securities" within the meaning of Rule 144 of the Securities Act. Whenever the
legend requirements imposed by Section 5.2 shall terminate as to this Warrant or
any Warrant Shares, the holder of this Warrant or such Warrant Shares shall be
entitled to receive from the Company promptly, at the Company's expense, a new
warrant or a new stock certificate representing such Warrant Shares, as the case
may be, not bearing the restrictive legend described in Section 5.2.
5.4 Compliance with Securities Laws. The Warrantholder,
-------------------------------
by its acceptance hereof, represents to the Company that this Warrant and any
Warrant Shares purchased upon exercise of this Warrant are being acquired solely
for the Warrantholder's own account, solely for an investment by the
Warrantholder and not as a nominee for any other party, and not with a view for
distribution or resale, that the Warrantholder will not offer, sell or otherwise
dispose of this Warrant or any such Warrant Shares except under circumstances
that will not result in a violation of the Securities Act or any applicable
state securities laws. Upon exercise of all or part of this Warrant, the
Warrantholder shall, if requested by the Company, confirm in writing, in a form
reasonably satisfactory to the Company, that the Warrant Shares so purchased are
being acquired solely for the Warrantholder's own account and not as a nominee
for any other party, for investment, and not with a view toward distribution or
resale.
5.5 Transfer Procedure. Subject to compliance with the
------------------
other provisions of this Article V, transfer of this Warrant, in whole or in
part, shall occur upon surrender of this Warrant at the principal office of the
Company at the address set forth in Section 11.5, together with (a) a duly
executed written Assignment in substantially the form attached hereto as Annex
II, with Warrantholder's signature notarized or guaranteed by an eligible
guarantor institution that is a member of a recognized medallion signature
guarantee program, (b) funds sufficient to pay any transfer taxes payable upon
the making of such transfer, and (c) if required, an opinion of counsel
concerning the compliance of such transfer, if any, with the Securities Act and
applicable state securities laws. Upon receipt of such items, the Company shall
execute and deliver a new warrant or warrants in the name of the assignee or
assignees and in the denomination(s) specified in such instrument of assignment,
and shall issue to the assignor a new warrant evidencing the portion of this
Warrant not so assigned, and this Warrant shall promptly be cancelled. The
assignor shall bear all expenses reasonably incurred by the Company in
connection with such assignment.
5.6 Maintenance of Transfer Books. The Company agrees to
-----------------------------
maintain, at the principal office of the Company at the address set forth in
Section 11.5, books for the registration and the registration of transfer of
this Warrant or any warrant of the Company issued in exchange for this Warrant.
VI. CAPITAL EVENT
6.1 Election by the Warrantholder. Upon receipt by the
-----------------------------
Warrantholder of the certificate provided by an officer of the Company pursuant
to Section 4.1 concerning a proposed Capital Event, the Warrantholder may elect
to exercise that portion of this Warrant which has not, at that time, been
exercised and receive in exchange for the resulting Warrant Shares the
consideration per share that would be provided to any other holder of such
number of shares of Common Stock. If the Warrantholder does not, by the time of
consummation of such Capital Event, elect to exercise this Warrant in accordance
with the previous sentence, the Company agrees to take all commercially
reasonably actions to ensure that the Successor (as defined in Section 6.2) does
not take any actions that would deny the Warrantholder its rights under this
Warrant.
6.2 Issuance of New Warrant in Successor upon Capital
-------------------------------------------------
Event. Upon the consummation of any Capital Event, the successor or acquiring
-----
Person (the "Successor") to or in such Capital Event shall issue to the
Warrantholder a new warrant of the Successor which shall include all material
terms of this Warrant (including, without limitation, the adjustment provisions
contained in Article III), except that such warrant shall provide for the
purchase, at the Exercise Price per share, of the kind and amount of shares of
common stock and other securities and property of the Successor (including,
without limitation, cash) that would be received by a holder of the number of
shares of Common Stock for which this Warrant was exercisable immediately prior
to such Capital Event (including, on a pro rata basis, the cash, securities and
property receivable by holders of shares of Common Stock in any tender or
exchange offer that is a step in any such Capital Event).
6.3 Successive Capital Events. The provisions of
----------------------------
this Article VI shall apply to successive Capital Events.
VII. NO IMPAIRMENT; NECESSARY ACTIONS
The Company shall not by any action (including, without
limitation, amending its certificate of incorporation or through any
reorganization, transfer of assets, consolidation, merger, 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 actions as may be necessary or appropriate to protect the
rights of the Warrantholder against impairment. Without limiting the generality
of the foregoing, the Company will: (a) use its commercially reasonable efforts
to obtain all such authorizations, approvals, exemptions or consents from any
Governmental Authority having jurisdiction thereof as may be necessary to enable
the Company to perform its obligations under this Warrant (including, without
limitation, making all necessary filings with such Governmental Authorities);
(b) take all necessary steps (including, without limitation, making appropriate
amendments to its certificate of incorporation) to ensure that the Company has a
sufficient number of authorized but unissued shares of Common Stock to provide
for the issuance of the Warrant Shares; (c) reserve from such authorized but
unissued shares of Common Stock a sufficient number of shares to provide for the
issuance of the Warrant Shares upon the exercise of this Warrant; and (d) take
all actions as may be necessary or appropriate to ensure that the Company may
validly and legally issue fully paid and non-assessable shares of Common Stock
upon the exercise of this Warrant, which shares of Common Stock are not subject
to any preemptive rights and are free from all taxes, liens, security interests,
charges, and other encumbrances with respect to the issuance thereof, other than
taxes in respect of any transfer occurring contemporaneously with such issuance.
VIII. SUPPLYING INFORMATION
During the time period that the transfer restrictions
described in Article V are in effect the Company shall cooperate with the
Warrantholder and each holder of Warrant Shares in supplying such information as
may be reasonably necessary for such holders to complete and file any
information reporting forms presently or hereafter required by the SEC and any
state securities agency as a condition to the availability of an exemption under
the Securities Act and any applicable state securities law for the sale of this
Warrant or any Warrant Shares. In addition, the Company shall supply the
Warrantholder at all times prior to full exercise of this Warrant with copies of
all documents supplied by the Company to the holders of its Common Stock after
the date hereof.
IX. LOSS OR MUTILATION
On receipt of evidence reasonably satisfactory to the Company
of the loss, theft, destruction or mutilation of this Warrant and (a) in the
case of loss, theft or destruction, on delivery of an indemnity agreement
reasonably satisfactory in form and substance to the Company; or (b) 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, a new warrant of
like tenor and amount.
X. RIGHTS OF THE WARRANTHOLDER UNDER THE REGISTRATION
RIGHTS AGREEMENT
Upon the Warrantholder's exercise of all or part of this
Warrant and purchase of Warrant Shares, those Warrant Shares shall be considered
to be "Registrable Securities" for all purposes under the Registration Rights
Agreement.
XI. MISCELLANEOUS
11.1 Entire Agreement. This Warrant constitutes the
-----------------
entire agreement between the Company and the Warrantholder with respect to the
Warrant.
11.2 Nonwaiver and Expenses. No course of dealing or any
----------------------
delay or failure to exercise any right hereunder on the part of the
Warrantholder shall operate as a waiver of such right or otherwise prejudice the
Warrantholder's rights, powers or remedies. If the Company fails to make, when
due, any payments provided for under this Warrant, or fails to comply with any
other provision of this Warrant, the Company shall pay to the Warrantholder such
amounts as shall be sufficient to cover any costs and expenses including, but
not limited to, reasonable attorneys' fees, including those of appellate
proceedings, incurred by the Warrantholder in collecting any amounts due
pursuant hereto or in otherwise enforcing any of its rights, powers or remedies
hereunder.
11.3 Binding Effect; No Third-Party Beneficiaries. This
--------------------------------------------
Warrant shall inure to the benefit of and shall be binding upon the Company and
the Warrantholder and their respective successors and permitted assigns. Nothing
in this Warrant, expressed or implied, is intended to or shall confer on any
person other than the Company and the Warrantholder, or their respective
successors or permitted assigns, any rights, remedies, obligations or
liabilities under or by reason of this Warrant.
11.4 Section and Other Headings. The section and other
---------------------------
headings contained in this Warrant are for reference purposes only and shall
not be deemed to be a part of this Warrant or to affect the meaning or
interpretation of this Warrant
11.5 Notices. All notices, demands and other communications
-------
provided for or permitted hereunder shall be made in writing and shall be by
registered or certified first-class mail, return receipt requested, facsimile
transmission, courier service, overnight mail or personal delivery:
If to the Warrantholder: with a copy to:
----------------------- --------------
Xxxxxx Healthcare Finance, Inc. Xxxxx & Xxxxxxx, L.L.P.
0 Xxxxxxxxx Xxxxxx, 0xx Xxxxx 000 Xxxxxxxxxx Xxxxxx, X.X.
Chevy Chase, Maryland 20815 Xxxxxxxxxx, X.X. 00000
Attn: Pascare Bissauthe, Senior Vice President Attn: Xxxxxxxxxxx X. Xxxxx
Tel: (000) 000-0000 Tel: (000) 000-0000
Fax: (000) 000-0000 Fax: (000) 000-0000
If to the Company: with a copy to:
----------------- --------------
LaserSight Incorporated The Lowenbaum Partnership
0000 Xxxxxxxxxx Xxxx., Xxxxx 000 000 Xxxxx Xxxxxxx, Xxxxx 000
Xxxxxx Xxxx, Xxxxxxx 00000 Xx. Xxxxx, Xxxxxxxx 00000
Attn: Chief Financial Officer Attn: Xxxxxxx X. Xxxxxxx, Esq.
Tel: (000) 000-0000 Tel: (000) 000-0000
Fax: (000) 000-0000 Fax: (000) 000-0000
All such notices and communications shall be deemed to have
been duly given when delivered by hand, if personally delivered; when delivered
by courier or overnight mail, if delivered by commercial courier service or
overnight mail; five (5) Business Days after being deposited in the mail,
postage prepaid, if mailed; and when receipt is mechanically acknowledged, if
sent by facsimile transmission. Any party may by notice given in accordance with
this Section 11.5 designate another address or Person for receipt of notices
hereunder.
11.6 Severability. Whenever possible, each provision of
------------
this Warrant will be interpreted in such manner as to be effective and valid
under applicable law, but if any provision of this Warrant is held to be
invalid, illegal or unenforceable in any respect under any applicable law or
rule in any jurisdiction, such invalidity, illegality or unenforceability will
not affect any other provision of this Warrant or the validity, legality or
enforceability of this Warrant in any other jurisdiction. In such event, this
Warrant will be reformed, construed and enforced in such jurisdiction as if such
invalid, illegal or unenforceable provision had never been contained herein.
11.7 Governing Law. ALL QUESTIONS CONCERNING THE
-------------
CONSTRUCTION, VALIDITY AND INTERPRETATION OF THIS AGREEMENT WILL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF DELAWARE,
WITHOUT GIVING EFFECT TO ANY CHOICE OF LAW OR CONFLICT OF LAW PROVISION OR RULE
(WHETHER OF THE STATE OF DELAWARE OR ANY OTHER JURISDICTION) THAT WOULD CAUSE
THE APPLICATION OF THE LAWS OF ANY JURISDICTION OTHER THAN THE STATE OF
DELAWARE.
11.8 No Rights or Liabilities as Stockholder. Nothing
---------------------------------------
contained in this Warrant shall be determined as conferring upon the
Warrantholder any voting rights or other rights as a stockholder of the Company.
No provision of this Warrant, in the absence of affirmative action by the
Warrantholder to purchase Warrant Shares, shall give rise to any liability of
the Warrantholder to purchase any such Warrant Shares. No enumeration in this
Warrant of the rights and privileges of the Warrantholder shall give rise to any
liability of the Warrantholder as a stockholder of the Company whether such
liabilities are asserted by the Company or by creditors or stockholders of the
Company or otherwise.
11.9 Amendment. No amendment or waiver of any provision
---------
of this Warrant shall be effective without the prior written consent of the
Company and the Warrantholder.
11.10 Remedies. The Warrantholder, in addition to being
--------
entitled to exercise all rights granted by law, including recovery of damages,
will be entitled to equitable remedies including specific performance of its
rights under this Warrant. The Company agrees that monetary damages would not be
adequate compensation for any loss incurred by reason of a breach by it of the
provisions of this Warrant and hereby agrees to waive the defense in any action
for specific performance that a remedy at law would be adequate. In any action
or proceeding brought to enforce any provision of this Warrant or where any
provision hereof is validly asserted as a defense, the successful party shall be
entitled to recover reasonable attorneys' fees in addition to any other
available remedy.
[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, the Company has caused this Warrant
to be signed by its duly authorized officer.
LASERSIGHT INCORPORATED
By: /s/Xxxxxxx X. Xxxxxx
------------------------------
Name: Xxxxxxx X. Xxxxxx
------------------------------
Title: Secretary
------------------------------
Dated: March 12, 2001
Annex I
-------
NOTICE OF EXERCISE
------------------
(To be executed upon exercise of this Warrant)
The undersigned hereby irrevocably elects to exercise the
right, represented by this Warrant, to purchase _________ shares of Common Stock
and herewith tenders to the Company as payment for such shares either (a) the
amount of $__________ or (b) ________ shares of Common Stock, in accordance with
the terms of this Warrant. The undersigned requests that a certificate for such
shares be registered in the name of the undersigned and that such certificates
be delivered to the undersigned's address below.
The undersigned represents that it is acquiring such shares of
Common Stock for its own account for investment and not with a view to or for
sale in connection with any distribution thereof (subject, however, to any
requirement of law that the disposition thereof shall at all times be within its
control).
Dated: __________________________
Signature ___________________________
-------------------------------------
(Print Name)
-------------------------------------
(Street Address)
-------------------------------------
(City) (State) (Zip Code)
(All signatures must be notarized or guaranteed by an eligible institution that
is a member of a recognized medallion signature guaranty program.)
Annex II
--------
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 registration statement contemplated by the Registration Rights
Agreement (as defined in the 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 notarized or guaranteed by an eligible institution that
is a member of a recognized medallion signature guaranty program.)
