EXHIBIT 99.4
STANDSTILL AGREEMENT
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This Standstill Agreement (the "Agreement") is made as of June 5, 1998
(the "Effective Date") between TLC The Laser Center Inc., an Ontario corporation
("TLC"), and LaserSight Incorporated, a Delaware corporation (the "Company").
WHEREAS, TLC currently owns 251,000 shares of the Company's Common Stock
$.001 par value (the "TLC Shares");
WHEREAS, simultaneously with the delivery of this Agreement, TLC is
purchasing 2,000,000 shares of the Company's Series C Convertible Participating
Preferred Stock (the "Series C Preferred Stock") pursuant to the terms of a
Securities Purchase Agreement, dated June 5, 1998, between TLC and the Company
(the "Purchase Agreement");
WHEREAS, the parties hereto wish to set forth their agreements regarding
future purchases by TLC of the Company's voting securities;
NOW THEREFORE, in consideration of the mutual covenants and promises
contained herein, the parties hereto agree as follows:
1. Standstill Provisions. TLC acknowledges that TLC's execution and
delivery of this Agreement is a condition precedent to the Company agreeing to
issue the Series C Preferred Stock and that TLC will not, and will direct its
affiliates, directors, officers, employees and agents not to, directly or
indirectly, unless in any such case specifically permitted in writing to do so
by the Board of Directors of the Company:
(i) other than pursuant to the terms of the Purchase Agreement
and other than the TLC Shares and Series C Preferred Stock, purchase,
acquire or own, or offer or agree to purchase, acquire or own, directly
or indirectly, any voting securities or direct or indirect rights
(pursuant to an exchange, conversion, pledge or otherwise) or options to
acquire any voting securities of the Company; provided that the
acquisition and owning of voting securities as a result of any of the
following will not be deemed a violation of this Agreement: (A) any
dividend or distribution on the outstanding TLC Shares or Series C
Preferred Stock, (B) any subdivision of the outstanding TLC Shares or
Series C Preferred Stock, or (C) any reclassification of the TLC Shares
or Series C Preferred Stock.
(ii) other than pursuant to a prior written agreement with the
Company, acquire or affect the control of the Company or directly or
indirectly participate in or encourage the formation of any "group"
(within the meaning of Section 13(d)(3) of the Exchange Act) which owns
or seeks to acquire ownership of voting securities of the Company, or to
acquire or affect control of the Company;
(iii) other than pursuant to the terms of the Purchase Agreement,
otherwise act, directly or indirectly, alone or in concert with others,
to seek to control or to influence in any manner the management, board
of directors, policies or affairs of the Company, or propose or seek to
effect or negotiate with or provide financial assistance (by loan,
capital contribution or otherwise) or information to any party with
respect to any form of business combination transaction (including,
without limitation, a merger, consolidation or acquisition or
disposition of significant assets of the Company or any other entity)
with the Company or any affiliate thereof or any restructuring,
recapitalization or similar transaction with respect to the Company or
any affiliate thereof; or
(iv) instigate, encourage, assist or render advice to or make any
recommendation or proposal to any person or other entity to engage in
any of the actions covered by clauses (i) through (iii) of this Section
1(a), or render advice with respect to voting securities of the Company.
(b) For purposes of this Agreement, the term "voting
securities" shall mean (i) any securities which are entitled to vote
upon any matters, whether such securities are entitled to vote on such
matters in all events or only upon the occurrence of a default or other
contingencies, or (ii) any options, warrants, rights or securities which
by their terms may be convertible into or exchangeable for any security
described in clause (i) of this sentence.
2. Representations and Warranties. TLC represents and warrants to the
Company, and the Company represents and warrants to TLC:
(a) such party has the full legal right, power and authority to
enter into and perform this Agreement and the execution and delivery of
this Agreement by such party has been duly authorized by all necessary
corporate action;
(b) this Agreement is a valid and binding obligation of such
party, enforceable against such party in accordance with its terms,
except that such enforcement may be subject to (i) bankruptcy,
fraudulent conveyance, insolvency, reorganization, moratorium or other
similar laws now or hereafter in effect relating to creditors' rights
generally and (ii) general principles of equity (regardless of whether
such enforcement is considered in a proceeding in equity or at law); and
(c) neither the execution, delivery or performance of this
Agreement by such party conflicts with or constitutes a violation of or
default under such party's certificate of incorporation or by-laws, any
statute, law, regulation, order or decree applicable to such party, or
any contract, commitment, agreement, arrangement or restriction of any
kind to which such party is a party or by which such party is bound.
3. Notices. Any notice herein required or permitted to be given shall be
in writing and may be personally served or delivered by nationally-recognized
overnight courier or by facsimile-machine confirmed telecopy, and shall be
deemed delivered at the time and date of receipt (which shall include telephone
line facsimile transmission). Each party shall provide notice to the other party
of any change in address. The addresses for such communications shall be:
If to the Company:
LaserSight Incorporated
00000 Xxxxxxx Xxxxx
Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Telecopy: (000) 000-0000
Attention: Chief Financial Officer
After June 30, 1998:
LaserSight Incorporated
0000 Xxxxxxxxxx Xxxxxxxxx
Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Telecopy: (000) 000-0000
Attention: Chief Financial Officer
with a copy to:
Xxxxxxxxxxxx Xxxx & Xxxxxxxxx
Xxx Xxxxxxxxxxxx Xxxxxx
Xxxxx 0000
Xx. Xxxxx, Xxxxxxxx 00000
Telecopy: (000) 000-0000
Attention: Xxxx X. Xxxxxxxxx
If to Purchaser:
TLC The Laser Center Inc.
0000 Xxxxxxxx Xxxxx
Xxxxx 000
Xxxxxxxxxxx, Xxxxxxx
Xxxxxx X0X 442
Telecopy: (000) 000-0000
Attention: Xxxxx Xxxxxxxx
with a copy to:
Arent Fox Xxxxxxx Xxxxxxx & Xxxx, PLLC
0000 Xxxxxxxxxxx Xxxxxx, X.X.
Xxxxxxxxxx, X.X. 00000-0000
Telecopy: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxx
4. Agreement Term. This Agreement shall terminate on the date which is
the first to occur of (i) sixty (60) days after the Effective Date, or (ii) the
date on which the Company's Board of Directors adopts a stockholder's rights
plan.
5. No Waiver. No failure or delay by any party hereto in exercising any
right, power or privilege hereunder shall operate as a waiver thereof nor shall
any single or partial exercise thereof preclude any other or further exercise of
any right, power or privilege.
6. Remedies. Each party hereto acknowledges that money damages would be
an inadequate remedy for any breach of this Agreement and that the Company (in
the case of a breach by TLC) or TLC (in the case of a breach by the Company)
shall be entitled to specific performance and injunctive or other equitable
relief as a remedy for any such breach. Each party hereto waives any requirement
for the securing or posting of any bond in connection with any such remedy. No
party hereto shall take any action to impede the other party from seeking to
enforce any such equitable remedy. Such remedy shall not be exclusive, but shall
be in addition to all other remedies available at law or equity.
7. Governing Law. This Agreement shall be governed by and construed in
accordance with the internal laws of the State of Delaware, without giving
effect to the principles of conflict of laws thereof.
8. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto were upon one instrument.
9. Headings. The descriptive headings of the sections of this Agreement
are solely for the convenience of the parties hereto and shall not affect the
meaning or construction of any of the provisions of this Agreement.
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement
as of the date first above written.
LASERSIGHT INCORPORATED TLC THE LASER CENTER INC.
By: /s/ Xxxxxxx X. Xxxxxx By: /s/ X. X. Xxxxx
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Xxxxxxx X. Xxxxxx Name: Xxxxxx X. Xxxxx
President and CEO Title: Vice-President of Acquisitons
SIGNATURE PAGE TO STANDSTILL AGREEMENT
