Void after 5:00 p.m., New York, New York time, on November 11, 2001
THIS WARRANT AND THE SHARES OF COMMON STOCK ISSUABLE UPON EXERCISE OF
THIS WARRANT HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933
OR ANY STATE SECURITIES LAW AND MAY NOT BE EXERCISED, OFFERED FOR SALE,
SOLD, PLEDGED OR OTHERWISE TRANSFERRED, EXCEPT AS PERMITTED UNDER THIS
WARRANT AND THEN ONLY IF REGISTERED UNDER SUCH ACT AND ALL APPLICABLE
STATE SECURITIES LAWS OR THE COMPANY RECEIVES AN OPINION OF COUNSEL
SATISFACTORY TO THE COMPANY AND ITS COUNSEL TO THE EFFECT THAT NO SUCH
REGISTRATION IS REQUIRED, SUCH OPINION TO BE IN THE FORM OF OPINION
ANNEXED TO THIS WARRANT.
---------------------------------------
WARRANT TO PURCHASE COMMON STOCK
of
LASERSIGHT INCORPORATED
1. Grant of Warrant. This is to certify that, for value received,
Mercacorp, Inc. ("Mercacorp") or its permitted assigns (individually, "Holder"
and collectively, "Holders") are entitled, subject to the terms set forth below,
to purchase from LaserSight Incorporated, a Delaware corporation (the "Company")
or its successors or assigns, seven hundred fifty thousand (750,000), fully
paid, validly issued and non-assessable shares of common stock, $0.001 par
value, of the Company ("Common Stock") at any time during the period beginning
on the date hereof and ending at 5:00 p.m. New York, New York time, on November
11, 2001 (such period, the "Exercise Period") at an initial exercise price equal
to $4.00 per share. The number of shares of Common Stock to be received upon the
exercise of this Warrant and the price to be paid for each share of Common Stock
may be adjusted from time to time as provided in Section 18. The shares of
Common Stock deliverable upon such exercise, and as adjusted from time to time,
are hereinafter sometimes referred to as "Warrant Shares" and the exercise price
per share of Common Stock in effect at any time and as adjusted from time to
time is hereinafter sometimes referred to as the "Exercise Price."
2. Exercise of Warrant. This Warrant may only be exercised during the
Exercise Period, in whole or in increments of 50,000 shares of Common Stock.
This Warrant may be exercised, subject to the provisions hereof, by presentation
and surrender hereof to the Company at its principal office (or such other
office or agency of the Company as it may from time to time designate by notice
in writing to Holder at the address of Holder appearing on the books of the
Company ("Other Office")) with the Notice of Exercise annexed hereto duly
completed and executed on behalf of Holder, with Xxxxxx's signature guaranteed
by an eligible guarantor institution that is a member of a recognized medallion
signature guarantee program, and accompanied by payment of the Exercise Price by
wire transfer, certified or official bank check. As soon as practicable after
each such exercise of the Warrant, but not later than five (5) business days
from the date of such exercise, the Company shall issue and mail to Holder a
certificate or certificates for the Warrant Shares issuable upon such exercise,
registered in the name of Holder. This Warrant shall be deemed to have been
exercised immediately prior to the close of business on the date of its
surrender for exercise as provided above, unless such date is not a day on which
banks are open for business in New York, New York, in which case this Warrant
shall be deemed to have been exercised on the first succeeding day on which
banks are open for business in New York, New York (such date, the "Exercise
Date"). The person entitled to receive the shares of Common Stock issuable upon
such exercise shall be deemed to be the holder of record thereof from and after
the Exercise Date, notwithstanding that certificates representing such Warrant
Shares shall not then have been physically delivered.
3. Option to Compel Exercise. The Company shall have the right to
compel the Holder to exercise this Warrant, in whole, at any time during the
fourteen (14) day period immediately following the date the Shelf Registration
Statement (as defined herein) is declared effective (the "Option Period"). If at
any time during the Option Period the Company provides written notice (the
"Company Notice") to the Holder in accordance with Section 25 that the Company
has elected to exercise its right to compel the exercise of the Warrants under
this Section 3, the Holder shall, within five (5) days of its receipt of the
Company Notice, present and surrender this Warrant to the Company at its
principal office or Other Office, as applicable, with the Notice of Exercise
annexed hereto duly completed and executed on behalf of Xxxxxx, with Xxxxxx's
signature guaranteed by an eligible guarantor institution that is a member of a
recognized medallion signature guarantee program, and accompanied by payment of
the Exercise Price by wire transfer, certified or official bank check reasonably
acceptable to the Company. If after its receipt of the Company Notice, the
Holder fails to perform its obligations pursuant to this Section 3, this Warrant
shall be immediately cancelled and the Holder will have no further rights under
this Warrant, and the Company will have no further obligations under this
Warrant.
4. Reservation of Shares. The Company shall at all times reserve for
issuance and/or delivery upon exercise of this Warrant such number of shares of
its Common Stock as shall from time to time be required for issuance and
delivery upon exercise of the Warrant in full.
5. Fractional Shares. No fractional shares or scrip representing
fractional shares shall be issued upon the exercise of this Warrant. Any
fractional share to which Holder would otherwise be entitled shall be rounded to
the nearest whole share.
6. Warrant Register. The Company will maintain a register (the "Warrant
Register") containing the names and addresses of the Holder or Holders. Any
Holder may change his address as shown on the Warrant Register by written notice
to the Company requesting such change. Any notice or written communication
required or permitted to be given to the Holder may be delivered or given by
mail to such Holder as named in the Warrant Register and at the address shown on
the Warrant Register in accordance with Section 25. Until this Warrant is
transferred on the Warrant Register of the Company in accordance with the
provisions hereof, the Company may treat the Holder named in the Warrant
Register as the absolute owner of this Warrant for all purposes, notwithstanding
any notice to the contrary. If this Warrant is transferred in accordance with
the provisions hereof or a Holder's address as shown on the Warrant Register
changes and the Company is provided notice thereof in accordance with the
provision hereof, the Company shall record such transfer or change of address on
the Warrant Register as soon as practicable after receiving such notice.
7. Warrant Agent. The Company may, by written notice to all Holders,
appoint an agent ("Warrant Agent") who may at the option of the Company be the
Company's transfer agent or an individual employed by the Company for the
purpose of maintaining the Warrant Register, issuing the Common Stock or other
securities then issuable upon the exercise of this Warrant, exchanging this
Warrant, or replacing this Warrant. Thereafter, any such registration, issuance,
exchange, or replacement shall be made at the office of the Warrant Agent. The
Warrant Agent shall be bound by all terms and conditions of this Warrant, and
the Company shall at all times compel the Warrant Agent to perform all of its
obligations under this Warrant.
8. Transfer, Exchange or Replacement.
(a) Transferability and Non-Negotiability of Warrant. Neither
this Warrant nor any interest therein may be transferred or assigned in whole or
in part without compliance with all applicable federal and state securities laws
by Xxxxxx and the transferee or assignee thereof, including delivery of
investment intent representation letters and a legal opinion in the form annexed
hereto from counsel reasonably satisfactory to the Company, to the effect that
such transfer or assignment is exempt from the registration requirements of the
Securities Act of 1933 and the rules and regulations promulgated thereunder, or
any similar successor statute (collectively, the "Securities Act"), and any
applicable state securities laws. Subject to the preceding sentence and the
requirements of Section 8(b) below, this Warrant may be transferred by
endorsement (by Holder executing the Assignment Form annexed hereto with
Xxxxxx's signature guaranteed by an eligible guarantor institution that is a
member of a recognized medallion signature guarantee program) and delivery
thereof to the Company or the Warrant Agent, as applicable, together with
payment of any applicable transfer taxes.
(b) Notwithstanding anything set forth in this Section 8 to
the contrary, Holder acknowledges and agrees that it shall not transfer this
Warrant in whole or in Lots to (i) any individual, firm, corporation, limited
liability company, partnership, trust or other entity, including any successor
(by merger or otherwise) of such entity (collectively, "Person"), other than the
Company, who or which, together with all Affiliates and Associates (as defined
in Rule 12b-2 of the Securities Exchange Act of 1934 (the "Exchange Act")) of
such Person, beneficially owns at the time of such transfer, or beneficially
owned at any time during the ninety (90) day period immediately prior to such
transfer, more than one percent (1%) of the then issued and outstanding Common
Stock, or securities convertible or exercisable into, or exchangeable for,
Common Stock, immediately prior to any proposed transfer of the Warrant, or (ii)
Summit Technology, Inc., Visx, Incorporated, Autonomous Technologies
Corporation, Chiron Corporation, or Bausch & Lomb Incorporated or any their
respective Affiliates or successors (by merger or otherwise).
For purposes of this Section 8(b) a Person shall be deemed to
"beneficially own" any securities (i) which such Person or any of such Person's
Affiliates or Associates beneficially owns, directly or indirectly; (ii) which
such Person or any of such Person's Affiliates or Associates has (A) the right
to acquire (whether such right is exercisable immediately or only after the
passage of time) pursuant to any agreement, arrangement or understanding (other
than customary agreements with and among underwriters and selling group members
with respect to a bona fide public offering of securities), whether or not in
writing, or upon the exercise of conversion rights, exchange rights, rights,
warrants or options, or otherwise; or (B) the right to vote (whether such right
is exercisable immediately or only after the passage of time) pursuant to any
agreement, arrangement or understanding; or (iii) which are beneficially owned,
directly or indirectly, by any other Person (or any Affiliate or Associate of
such other Person) with which such Person or any of such Person's Affiliates or
Associates has any agreement, arrangement or understanding (other than customary
agreements with and among underwriters and selling group members with respect to
a bona fide public offering of securities), whether or not in writing, for the
purpose of acquiring, holding, voting (other than pursuant to a revocable proxy
or consent as described in the proviso to clause (ii)(B) hereof) or disposing of
any securities of the Company.
(c) Exchange of Warrant Upon a Transfer. On surrender of this
Warrant for exchange, properly endorsed on the Assignment Form with Xxxxxx's
signature guaranteed by an eligible guarantor institution that is a member of a
recognized medallion signature guarantee program, and subject to Section 8(a),
the Company at its expense shall issue to Holder a new warrant or warrants of
like tenor, in the name of Holder or as Holder (on payment by Holder of any
applicable transfer taxes) may direct, for the number of shares issuable upon
exercise hereof.
(d) Replacement of Warrant. On receipt of evidence reasonably
satisfactory to the Company of the loss, theft, destruction or mutilation of
this Warrant and, in case of loss, theft or destruction, on delivery of a
third-party indemnity agreement reasonably satisfactory in form and substance to
the Company or, in the case of mutilation, on surrender and cancellation of this
Warrant, the Company at its expense shall execute and deliver, in lieu of this
Warrant, a new warrant of like tenor and amount.
9. Compliance with Securities Laws.
(a) Holder, by acceptance of this Warrant, acknowledges that
neither this Warrant nor the Warrant Shares have been registered under the
Securities Act and represents and warrants to the Company that this Warrant is
being acquired for investment and not for distribution or resale, solely for
Holder's own account and not as a nominee for any other person, and that Holder
will not offer, sell, pledge or otherwise transfer this Warrant or any Warrant
Shares except as may be permitted under this Warrant and then only (i) in
compliance with the requirements for an available exemption from the Securities
Act and any applicable state securities laws, or (ii) pursuant to an effective
registration statement or qualification under the Securities Act and any
applicable state securities laws.
(b) Certificates for all Warrant Shares shall bear a legend in
substantially the following form:
THESE SHARES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933
OR ANY STATE SECURITIES LAWS AND MAY NOT BE OFFERED FOR SALE, SOLD,
PLEDGED OR OTHERWISE TRANSFERRED, UNLESS SUCH SHARES ARE REGISTERED
UNDER SUCH ACT AND ALL APPLICABLE STATE SECURITIES LAWS OR THE COMPANY
RECEIVES AN OPINION OF COUNSEL SATISFACTORY TO THE COMPANY AND ITS
COUNSEL TO THE EFFECT THAT NO SUCH REGISTRATION IS REQUIRED, SUCH
OPINION TO BE IN THE FORM OF OPINION PREVIOUSLY AGREED TO BY THE
COMPANY.
10. Rights of the Holder. Subject to Sections 18 and 19, and until the
Warrant shall have been exercised as provided herein, Holder shall not be
entitled to vote, receive dividends or other distributions on, or be deemed the
holder for any purpose of, any Warrant Shares or any other securities of the
Company that may from time to time be issuable upon the exercise hereof, nor
shall Holder, in such capacity, enjoy any of the rights of a stockholder of the
Company or any right to vote on, or consent (or withhold consent) to, the
election of directors of the Company or any other matter submitted to the
stockholders of the Company, or to receive notice of meetings thereof.
11. Registration of Warrant Shares.
(a) The Company shall:
(i) prepare and, on or prior to thirty (30) days
after the date hereof, file with the Securities and Exchange Commission
("SEC") a Registration Statement on Form S-3 or any successor form
promulgated by the SEC in respect of all the Warrant Shares on an
appropriate form for a secondary offering to be made on a continuous
basis by the Company pursuant to Rule 415 (the "Shelf Registration
Statement"); and
(ii) subject to Section 12 hereof, use its best
efforts to cause the Shelf Registration Statement to become effective
as soon as practicable after such filing.
In addition to the Warrant Shares, the Company may include in the Shelf
Registration Statement shares of Common Stock held by any holder of equity
securities of the Company or any securities convertible into or exercisable or
exchangeable for such equity securities, which holder is entitled by written
agreement with the Company to have some or all of such securities included in
the Shelf Registration Statement.
(b) The Company shall use its best efforts to keep the Shelf
Registration Statement continuously effective at all times until such date as is
the earlier of: (i) the date on which all of the Warrant Shares have been sold,
(ii) the date on which all of the Warrant Shares may be immediately sold to the
public without registration conditions or limitations, whether pursuant to Rule
144 or otherwise, and (iii) the date which is the one year anniversary of the
date hereof; provided that such one-year period shall be extended by the number
of days during which a Blackout Period (as defined herein) or a Holdback Period
(as defined herein) is in effect or invoked. (The period of time commencing on
the date the Shelf Registration Statement is declared effective and ending on
the earliest of the foregoing dates shall be referred to as the "Registration
Period"). Such best efforts shall include, but not be limited to, promptly
responding to all comments received from the staff of the SEC. Should the
Company receive notification from the SEC that the Shelf Registration Statement
will receive no action or no review from the SEC, subject to Section 12 hereof,
the Company shall cause such Shelf Registration Statement to become effective
within seven (7) business days of such SEC notification. Subject to Section 12
hereof, the Company shall use its best efforts to amend and supplement the
prospectus contained in the Shelf Registration Statement (the "Prospectus") in
order to permit such Prospectus to be lawfully delivered until the end of the
Registration Period.
(c) In connection with the Shelf Registration Statement, the
Company shall:
(i) mail to each Holder a copy of the Prospectus forming
part of the Shelf Registration Statement;
(ii) otherwise comply in all material respects with all
applicable federal securities laws, rules and regulations.
(d) Upon the occurrence of a Blackout Event (as defined
herein) or the triggering of a Holdback Period, the Company shall notify Holder
of such occurrence in accordance with Section 25. Upon such notice being
provided Xxxxxx agrees not to sell any Warrant Shares pursuant to the Shelf
Registration Statement until the Company has notified Holder that the Blackout
Period or Holdback Period, as applicable, is no longer in effect.
(e) Subject to Section 12 hereof, the Company shall promptly
supplement and amend the Shelf Registration Statement if required by the
Securities Act or if reasonably requested by the Holders of a majority of the
Warrant Shares then transferable pursuant to such Shelf Registration Statement.
(f) Each Holder agrees to notify the Company promptly, but in
any event within three (3) business days, after the date on which all Warrant
Shares owned by such Holder have been sold by such Holder so that the Company
may comply with its obligation to terminate the Shelf Registration Statement in
accordance with Item 512 of Regulation S-K.
(g) The Company hereby represents and warrants that it meets
the requirements for the use of Form S-3 for registration of the sale by the
Holders of the Warrant Shares, and the Company shall file all reports required
to be filed by the Company with the SEC in a timely manner so as to maintain
such eligibility for the use of Form S-3.
12. Blackout Period and Holdback Events.
(a) During any period of up to 90 days' duration following the
occurrence of a Blackout Event (a "Blackout Period"), the Company shall not be
required to file, or cause to be declared effective, under the Securities Act
the Shelf Registration Statement, or, if applicable, the Holders will
discontinue the offer and sale of Warrant Shares pursuant to the Shelf
Registration Statement.
(b) The Holders shall not, if requested by the managing
underwriter or underwriters of an underwritten offering and if all affiliates of
the Company (as defined in Rule 144(a)(1) under the Securities Act) have been
likewise required, effect any public or private sale of any Common Stock,
including a sale pursuant to Rule 144, during the period ("Holdback Period")
beginning 14 days prior to, and ending 90 days after, the effective date of the
registration statement relating to a public offering of Common Stock, or other
securities convertible into, or exercisable or exchangeable for, Common Stock
that is underwritten on a firm commitment basis.
(c) The aggregate number of days during which one or more
Blackout Periods or Holdback Periods are in effect shall not exceed 180 days
during the Registration Period, provided that the aggregate number of days
during which one or more Blackout Periods or Holdback Periods are in effect
shall not exceed 90 days in any 12 month period during the Registration Period.
(d) The Company shall promptly notify the Holders in writing
of any decision not to file the Shelf Registration Statement or not to cause the
Shelf Registration Statement to be declared effective or to discontinue sales of
Warrant Shares pursuant to this Section 12, which notice shall set forth the
reason for such decision (but not disclosing any nonpublic material information)
and shall include an undertaking by the Company promptly to notify the Holders
as soon as sales may resume.
(e) For purposes of this Warrant "Blackout Event" shall mean a
determination by the Company made in good faith, after consulting with outside
securities counsel, that the registration of Warrant Shares under the Securities
Act or the continuation of the disposition of Warrant Shares pursuant to the
Shelf Registration Statement at such time (i) would have a material adverse
effect upon a proposed material sale of all (or substantially all) of the assets
of the Company or a proposed material merger, reorganization, recapitalization
or similar current transaction materially affecting the capital structure or
equity ownership of the Company, or (ii) would require the Company to make a
public disclosure of information, which disclosure has been determined by the
Company, after consultation with outside securities counsel, not to be in the
best interests of the Company.
(f) Other holders of Common Stock, or securities convertible
or exercisable into, or exchangeable for, Common Stock (the "Other Blackout
Holders") have agreed that trading pursuant to an effective Company registration
statement may be suspended due to the occurrence of events the same as or
substantially similar to the events described in Section 12(e). Therefore,
notwithstanding anything else to the contrary herein, the Holders will not be
subject to a Blackout Event unless the Company notifies all Other Blackout
Holders that such holders must suspend trading pursuant to an effective Company
registration statement due to such Blackout Event.
13. Registration Procedures. In connection with the filing of the Shelf
Registration Statement, the Company shall effect such registrations to permit
the sale of the Warrant Shares covered thereby in accordance with the intended
method or methods of disposition thereof, and in connection with the Shelf
Registration Statement the Company shall:
(a) Notify the selling Holders of Warrant Shares promptly (but
in any event within five business days), and confirm such notice in writing: (i)
when the Prospectus or any Prospectus supplement or post-effective amendment has
been filed, and, with respect to the Shelf Registration Statement or any
post-effective amendment, when the same has become effective under the
Securities Act, (ii) of the issuance by the SEC of any stop order suspending the
effectiveness of the Shelf Registration Statement or of any order preventing or
suspending the use of any preliminary prospectus or the initiation or
threatening of any proceedings for that purpose, and (iii) any request by the
SEC for the amending or supplementing of such registration statement, prospectus
or prospectus supplement.
(b) Use its best efforts to prevent the issuance of any order
suspending the effectiveness of the Shelf Registration Statement or of any order
preventing or suspending the use of the Prospectus or suspending the
qualification (or exemption from qualification) of any of the Warrant Shares for
sale in any jurisdiction and, if any such order is issued, to use its reasonable
best efforts to obtain the withdrawal of any such order or suspension of
qualification or exemption from qualification at the earliest practicable time.
(c) Furnish to each selling Holder of Warrant Shares and to
any underwriter participating in such registration at the sole expense of the
Company at least one conformed copy of the Shelf Registration Statement
including financial statements and schedules thereto and each post-effective
amendment thereto and, if requested, all documents incorporated or deemed to be
incorporated therein by reference and all exhibits as soon as practicable after
such Holder or underwriter so requests.
(d) Deliver to each selling Holder of Warrant Shares and to
any underwriter participating in such registration at the sole expense of the
Company as many copies of the Prospectus (including each form of preliminary
prospectus) and each amendment or supplement thereto and any documents
incorporated by reference therein as such Holder may reasonably request; and,
subject to the last paragraph of this Section 13, the Company consents to the
use of such Prospectus and each amendment or supplement thereto by each of the
selling Holders of Warrant Shares and the underwriters, if any, in connection
with the offering and sale of the Warrant Shares covered by such Prospectus and
any amendment or supplement thereto.
(e) Prior to the effectiveness of the Shelf Registration
Statement and thereafter, to use its reasonable best efforts to register or
qualify, and to cooperate with the selling Holders of Warrant Shares in
connection with the registration or qualification (or exemption from such
registration or qualification) of such Warrant Shares for offer and sale under
the securities or blue sky laws of such jurisdictions within the United States
as any selling Holder reasonably requests; keep each such registration or
qualification (or exemption therefrom) effective during the period the Shelf
Registration Statement is required to be kept effective and do any and all other
acts or things reasonably necessary or advisable to enable the disposition in
such jurisdictions of the Warrant Shares covered by the Shelf Registration
Statement; provided, however, that the Company shall not be required to (i)
qualify to do business in any jurisdiction where it would not otherwise be
required to qualify but for this Section 13(e), (ii) subject itself to general
taxation in any such jurisdiction, (iii) file a general consent to service of
process in any such jurisdiction, (iv) provide any undertakings that cause the
Company material expense or burden, or (v) make any change in its charter or
by-laws, which in each case the Company's Board of Directors determines to be
contrary to the best interests of the Company and its stockholders.
(f) Cooperate with the selling Holders of Warrant Shares to
facilitate the timely preparation and delivery of certificates representing
Warrant Shares to be sold, which certificates shall not bear any restrictive
legends and shall be in a form in compliance with any applicable rules of a
stock exchange on which the Common Stock is then listed; and enable such Warrant
Shares to be in such denominations and registered in such names as Holders may
reasonably request.
(g) Upon the occurrence of any event or any information
becoming known to the Company that makes any statement made in the Shelf
Registration Statement or the Prospectus or any document incorporated or deemed
to be incorporated therein by reference untrue in any material respect, as
promptly as practicable prepare and file with the SEC, at the sole expense of
the Company, a supplement or post-effective amendment to the Shelf Registration
Statement or a supplement to the Prospectus or any document incorporated or
deemed to be incorporated therein by reference, or file any other required
document so that, as thereafter delivered to the purchasers of the Warrant
Shares being sold thereunder, any such Prospectus will not contain an untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading.
(h) Prepare and file with the SEC, promptly upon the request
of any Holder, any amendments or supplements to the Shelf Registration Statement
or prospectus which, in the judgment of counsel for the Company, is required
under the Securities Act in connection with the distribution of the Warrant
Shares by such Holders.
(i) Comply with all applicable rules and regulations of the
SEC and make generally available to its security holders earnings statements
satisfying the provisions of Section 11(a) of the Securities Act and Rule 158
thereunder (or any similar rule promulgated under the Securities Act) no later
than 90 days after the end of any 12-month period (or 120 days after the end of
any 12-month period if such period is a fiscal year) commencing on the first day
of the first fiscal quarter of the Company after the effective date of the Shelf
Registration Statement, which statements shall cover said 12-month periods.
(j) Cooperate with each seller of Warrant Shares covered by
the Shelf Registration Statement in connection with any filings required to be
made with the National Association of Securities Dealers, Inc.
(k) Use its reasonable best efforts to cause, at its own
expense, all Warrant Shares relating to the Shelf Registration Statement to be
listed on each securities exchange, if any, or quoted on any broker-dealer
quotation system on which similar securities issued by the Company are then
listed.
(l) Furnish an opinion, dated as of the effective date of the
Shelf Registration Statement, of the counsel representing the Company for the
purpose of such registration addressed to the underwriters, if any, making such
request, covering such matters as are customarily covered by such opinions and
as such underwriters may reasonably request. Use its reasonable best efforts to
furnish letters dated as of the effective date of the Shelf Registration
Statement, from independent certified public accountants of the Company
addressed to the underwriters, if any, making such request, covering such
matters as are customarily covered by such letters and as such underwriters may
reasonably request.
The Company may require each seller of Warrant Shares as to which any
registration is being effected to furnish to the Company such information
regarding such seller and the distribution of such Warrant Shares as the Company
may, from time to time, reasonably request. The Company may exclude from such
registration the Warrant Shares of any seller so long as such seller fails to
furnish such information within a reasonable time after receiving such request.
Each seller as to which the Shelf Registration Statement is being effected
agrees to furnish promptly to the Company all information required to be
disclosed in order to make the information previously furnished to the Company
by such seller not materially misleading.
Each Holder of Warrant Shares understands that the Securities Act may
require delivery of the Prospectus in connection with any sale thereof pursuant
to the Shelf Registration Statement, and each such Holder shall comply with the
applicable Prospectus delivery requirements of the Securities Act in connection
with any such sale.
Each Holder of Warrant Shares agrees by acquisition of such Warrant
Shares that, upon actual receipt of any notice from the Company of the happening
of any event of the kind described in Section 13(a)(ii) hereof or any
information becoming known that makes any statement made in the Shelf
Registration Statement or the Prospectus or any document incorporated or deemed
to be incorporated therein by reference untrue in any material respect, such
Holder will forthwith discontinue disposition of such Warrant Shares covered by
the Shelf Registration Statement or the Prospectus to be sold by such Holder
until such Xxxxxx's receipt of the copies of the supplemented or amended
Prospectus contemplated by Section 13(d) hereof, or until it is advised in
writing (the "Advice") by the Company that the use of the Prospectus may be
resumed, and has received copies of any amendments or supplements thereto. In
the event the Company shall give any such notice, the Registration Period shall
be extended by the number of days during such period from and including the date
of the giving of such notice to and including the date when each seller of
Warrant Shares covered by the Shelf Registration Statement, as the case may be,
shall have received (i) the copies of the supplemented or amended Prospectus
contemplated by Section 13(d) hereof or (ii) the Advice.
14. Expenses. With respect to such registration, the Company shall bear
all fees, costs and expenses, including without limitation all registration,
filing and NASD fees, printing expenses, fees and disbursements of counsel and
accountants for the Company, all internal Company expenses, and all legal fees
and disbursements and other expenses of complying with state securities or blue
sky laws of any jurisdiction in which the Warrant Shares are to be registered or
qualified, but excluding any underwriting discounts and commissions and transfer
taxes and any other related selling expenses incurred by the selling Holders.
The selling Holders will be responsible for fees and disbursements of such
parties' counsel and accountants.
15. Indemnification By the Company. With respect to such registration,
the Company will indemnify and hold harmless each Holder of Warrant Shares which
are included in a registration statement pursuant to the provisions of this
Warrant, its directors and officers, and any underwriter (as defined in the
Securities Act) for such Holders and each person, if any, who controls such
Holder or such underwriter within the meaning of the Securities Act, from and
against, and will reimburse such Holder and each such underwriter and
controlling person with respect to, any and all loss, claim, damage, liability,
cost (including without limitation the reasonable cost of investigation of any
claim) and expense, joint or several, to which such Holder or any such
underwriter or controlling person may become subject under the Securities Act or
otherwise, insofar as such losses, claims, damages, liabilities, costs or
expenses arise out of or are based on (i) any untrue statement or alleged untrue
statement of any material fact contained in such registration statement, any
prospectus contained therein or any amendment or supplement thereto, or (ii) the
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein, in light of the
circumstances in which they were made, not misleading; or (iii) any violation or
alleged violation by the Company of the Exchange Act, any state securities law,
or any rule or regulation promulgated under any of the aforementioned statutes,
provided, however, that the Company will not be liable in any such case to the
extent that any such loss, claim, damage, liability, cost or expense arises out
of or is based upon any untrue statement or alleged untrue statement or omission
or alleged omission so made in conformity with information furnished by such
Holder, such underwriter or such controlling person in writing specifically for
use in the preparation thereof.
16. Indemnification By Holders. With respect to such registration, each
Holder of Warrant Shares which are included in a registration statement pursuant
to the provisions of this Warrant will, jointly and severally, indemnify and
hold harmless the Company, its directors and officers and each person, if any,
who controls the Company within the meaning of the Securities Act, from and
against, and will reimburse the Company and each such controlling person, with
respect to, any and all loss, claim, damage, liability, cost (including without
limitation the reasonable cost of investigation of any claim) and expense, joint
or several, to which the Company or any such controlling person may become
subject under the Securities Act or otherwise, insofar as such losses, claims,
damages, liabilities, costs or expenses arise out of (i) any untrue statement or
alleged untrue statement of any material fact contained in such registration
statement, any prospectus contained therein or any amendment or supplement
thereto made in conformity with information furnished by such Holder
specifically for use in the preparation thereof, or (ii) the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances in which
they were made, not misleading made in conformity with information furnished by
such Holder specifically for use in the preparation thereof; or (iii) any
violation or alleged violation by the Company of the Exchange Act, any state
securities law, or any rule or regulation promulgated under any of the
aforementioned statutes, provided that any such loss, claim, damage, liability,
cost or expense arises out of or is based upon any untrue statement or alleged
untrue statement or omission or alleged omission so made in conformity with
information furnished by such Holder specifically for use in the preparation
thereof.
17. Rule 144. From the effective date of the Shelf Registration
Statement, the Company shall use its reasonable best efforts to timely prepare
and file all documents required to be filed with the SEC as shall be necessary
to enable the Holders to sell unregistered Warrant Shares in accordance with
Rule 144 under the Securities Act. Upon the request of any Holder, the Company
shall deliver to such Holder a written statement as to whether it has complied
with such requirements.
18. Anti-Dilution Provisions. So long as this Warrant, or any portion
thereof, shall remain outstanding and unexpired, the Exercise Price in effect
from time to time and the number and kind of securities purchasable upon the
exercise of the Warrants shall be subject to adjustment from time to time as
follows:
(a) If the Company shall (i) declare a dividend or make a
distribution on its outstanding shares of Common Stock in shares of Common
Stock, (ii) subdivide or reclassify its outstanding shares of Common Stock into
a greater number of shares, or (iii) combine or reclassify its outstanding
shares of Common Stock into a smaller number of shares (any of the foregoing, a
"Dilutive Event"), the Exercise Price in effect at the time of the record date
for such Dilutive Event shall be adjusted so that it shall equal the price
determined by multiplying the Exercise Price by a fraction, the denominator of
which shall be the number of shares of Common Stock outstanding immediately
after giving effect to such Dilutive Event, and the numerator of which shall be
the number of shares of Common Stock outstanding immediately prior to such
Dilutive Event (such fraction, the "Adjustment Factor"). Such adjustment shall
be made successively whenever any Dilutive Event shall occur.
(b) If the Company shall issue rights or warrants to all, but
not less than all, of the holders of its Common Stock entitling them to
subscribe for or purchase shares of Common Stock (or securities convertible into
Common Stock) at a price (or having a conversion price per share) less than the
Current Market Price (as defined below) of the Common Stock on the record date
specified below, the Exercise Price shall be adjusted so that the same shall
equal the price determined by multiplying the Exercise Price in effect
immediately prior to the date of such issuance by a fraction, the numerator of
which shall be the sum of the number of shares of Common Stock outstanding on
such record date and the number of additional shares of Common Stock which the
aggregate offering price of the total number of shares of Common Stock so
offered (or the aggregate conversion price of the convertible securities so
offered) would purchase at the Current Market Price per share of the Common
Stock, and the denominator of which shall be the sum of the of the number of
shares of Common Stock outstanding on such record date and the number of
additional shares of Common Stock offered for subscription or purchase (or into
which the convertible securities so offered are convertible). Such adjustment
shall be made successively whenever such rights or warrants are issued and shall
become effective immediately after the record date for the determination of
stockholders entitled to receive such rights or warrants; and to the extent that
shares of Common Stock are not delivered (or securities convertible into Common
Stock are not delivered) after the expiration of such rights or warrants, the
Exercise Price shall be readjusted to the Exercise Price which would then be in
effect had the adjustments made upon the issuance of such rights or warrants
been made upon the basis of delivery of only the number of shares of Common
Stock (or securities convertible into Common Stock) actually delivered. The
"Current Market Price" per share of Common Stock at any date shall be deemed to
be the average of the daily closing prices for the thirty (30) consecutive
business days immediately before such date.
(c) Whenever the Exercise Price payable upon exercise of each
Warrant is adjusted pursuant to Section 18(a) or 18(b), the number of shares
purchasable upon exercise of this Warrant shall simultaneously be adjusted by
dividing the number of shares issuable upon exercise of this Warrant by the
Adjustment Factor.
(d) If at any time, as a result of an adjustment made pursuant
to this Section 18(e) or 18(f), the Holder of this Warrant shall thereafter
become entitled to receive any shares of the Company, other than Common Stock or
shares of any issuer other than the Company, thereafter the Exercise Price and
the number of such other shares so receivable upon exercise of this Warrant
shall be subject to adjustment from time to time in a manner and on terms as
nearly equivalent as practicable to the provisions with respect to the Common
Stock contained in Sections 18(a), 18(b) and 18(c).
(e) If the Company by reclassification of securities or
otherwise, shall change any of the securities as to which purchase rights under
this Warrant exist into the same or a different number of securities of any
other class or classes, this Warrant shall thereafter represent the right to
acquire such number and kind of securities as would have been issuable as the
result of such change with respect to the securities that were subject to the
purchase rights under this Warrant immediately prior to such reclassification or
other change and the Exercise Price therefor shall be appropriately adjusted,
all subject to further adjustment as provided in this Section 18.
(f) If at any time there shall be (i) a reorganization (other
than a subdivision, combination, reclassification, or other change of shares
otherwise provided for herein), (ii) a merger or consolidation of the Company
with or into another corporation in which the Company is not the surviving
entity, or a reverse triangular merger in which the Company is the surviving
entity but the shares of the Company's capital stock outstanding immediately
prior to the merger are converted by virtue of the merger into other property,
whether in the form of securities, cash, or otherwise, or (iii) a sale or
transfer of the Company's properties and assets as, or substantially as, an
entirety to any other person, then, as a part of such reorganization, merger,
consolidation, sale or transfer, lawful provision shall be made so that the
holder of this Warrant shall thereafter be entitled to receive upon exercise of
this Warrant, during the period specified herein and upon payment of the
Exercise Price then in effect, the number of shares of stock or other securities
or property of the successor corporation resulting from such reorganization,
merger, consolidation, sale or transfer that a Holder of the shares deliverable
upon exercise of this Warrant would have been entitled to receive in such
reorganization, consolidation, merger, sale or transfer if this Warrant had been
exercised immediately before such reorganization, merger, consolidation, sale or
transfer, all subject to further adjustment as provided in this Section 18. The
foregoing provisions of this Section 18(f) shall similarly apply to successive
reorganizations, consolidations, mergers, sales and transfers and to the stock
or securities of any other corporate that are at the time receivable upon the
exercise of this Warrant. In all events, appropriate adjustment (as determined
by the Company's Board of Directors) shall be made in the application of the
provisions of this Warrant with respect to the rights and interests of the
Holder after the transaction, to the end that the provisions of this Warrant
shall be applicable after the event, as near as reasonably may be, in relation
to any shares or other property deliverable after that event upon exercise of
this Warrant.
(g) Whenever the Exercise Price shall be adjusted as required
by the provisions of Section 18, the Company shall promptly file in the custody
of its Secretary or an Assistant Secretary at its principal office or Other
Office and with the Warrant Agent, if any, an officer's certificate showing the
adjusted Exercise Price determined as herein provided, setting forth in
reasonable detail the facts requiring such adjustment, including a statement of
the number of additional shares of Common Stock or other securities, if any,
issuable upon exercise of this Warrant and such other facts as shall be
necessary to show the reason for and the manner of computing such adjustment.
Each such certificate shall be made available at all reasonable times for
inspection by Holder and the Company shall forthwith after each such adjustment
mail a copy of such certificate to Holder at its address last appearing in the
Warrant Register.
19. Notices to Warrant Holders. If at any time while this Warrant, or
any portion thereof, remains outstanding and unexpired, (i) the Company shall
pay any dividend or make any distribution upon the Common Stock (other than
regular quarterly cash dividends or dividends paid in the form of Common Stock),
(ii) the Company shall offer to the holders of Common Stock generally for
subscription or purchase by them any share of the Company of any class or any
other rights issued by the Company, or (iii) the capital reorganization of the
Company, reclassification of the capital stock of the Company, consolidation or
merger of the Company with or into another corporation, sale of all or
substantially all of the property and assets of the Company to another
corporation or voluntary or involuntary dissolution, liquidation or winding up
of the Company shall be effected, then in any such case, the Company shall cause
to be mailed to Holder at its address specified in the Warrant Register, at
least 10 days prior to the date specified in (x) or (y) below, as applicable, a
notice containing a brief description of the proposed event described in (i),
(ii) or (iii) above and stating the date on which (x) a record is to be taken
for the purpose of such dividend, distribution or rights, or (y) such
reclassification, reorganization, consolidation, merger, sale, dissolution,
liquidation or winding up is to take place and the date, if any, is be fixed, as
of which the holders of the Common Stock or other securities shall receive cash
or other property deliverable upon such event. Notwithstanding the above, the
failure to give such notice shall not affect the validity of any transaction for
which the notice was required to be given.
20. Governing Law. This Warrant shall be governed by and construed in
accordance with the internal laws of the State of New York without regard to
such state's conflict of law provisions.
21. Severability. In the event that any one or more of the provisions
contained herein, or the application thereof in any circumstance, is held
invalid, illegal or unenforceable, the validity, legality and enforceability of
any such provision in every other respect and of the remaining provisions
contained herein shall not be affected or impaired thereby.
22. Standstill. Mercacorp and, if applicable, such other Holder
acknowledges that it is a condition to the Company's agreement to issue this
Warrant to Mercacorp that Mercacorp and, if applicable, such other Holder agree
that it will not, and will direct their respective Affiliates and Associates,
and directors, officers, employees and agents of Mercacorp and, if applicable,
such other Holder and their respective Affiliates and Associates, not to,
directly or indirectly, for a period beginning on the date hereof and ending on
the first to occur of (i) November 10, 2001, or (ii) the expiration of the
twelve (12) month period immediately following the date on which all 750,000
Warrant Shares have been issued under this Warrant (the "Standstill Period"),
unless in any such case specifically invited in writing to do so by the Board of
Directors of the Company:
(a) purchase, acquire or own, or offer or agree to purchase,
acquire or own, directly or indirectly, Common Stock (or securities
convertible or exercisable into, or exchangeable for, Common Stock)
which at any time would result in Mercacorp and, if applicable, such
other Holder in the aggregate owning, directly or indirectly, more than
1,650,000 shares of Common Stock;
(b) make, or in way participate in, directly or indirectly,
any "solicitation" of "proxies" (as such terms are defined or used in
Regulation 14A under the Exchange Act) or become a "participant" in an
"election contest" (as such terms are defined or used in Rule 14a-11
under the Exchange Act) with respect to the Company or seek to advise
or influence any person with respect to the voting of any voting
securities of the Company;
(c) execute any written consent in lieu of a meeting of
holders of securities of the Company or any class thereof unless such
written consent is solicited by the Board of Directors of the Company;
(d) initiate, propose or otherwise solicit stockholders for
the approval of one or more stockholder proposals with respect to the
Company as described in Rule 14a-8 under the Exchange Act or induce or
attempt to induce any other person to initiate any stockholder
proposal;
(e) 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;
(f) call or seek to have called any meeting of the
stockholders of the Company;
(g) seek election to or seek to place a representative on the
Board of Directors of the Company or seek the removal of any member of
the Board of Directors of the Company;
(h) 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;
(i) 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 (a) through (h) of this
Section 22, or render advice with respect to voting securities of the
Company;
(j) except to the extent required by law, make any public
statement (or make available to any member of the news media any
information) with respect to any of the matters covered by clauses (a)
through (h) of this section 22, or with respect to the terms and
conditions of, or any of the facts related to, this Warrant; or
(k) request any waiver, modification, termination or amendment
of this Section 23 or the relinquishment by the Company of any rights
with respect thereto.
For purposes of this Section 22, 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. The
restrictions set forth in this Section 22 shall survive Mercacorp's and, if
applicable, such other Holder's exercise of the last of the Lots and shall
continue until the expiration of the Standstill Period.
23. Authorization. The Company and Mercacorp each represent and warrant
to the other that (i) each such party is duly organized, validly existing and in
good standing under the laws of their respective jurisdiction of incorporation,
(ii) each such party has the requisite corporate power and authority to execute
this Warrant and to carry out and perform the terms and provisions of this
Warrant, and (iii) this Warrant constitutes the valid and legally binding
obligation of such party.
24. Counterparts. This Warrant may be executed in one or more
counterparts, each of which shall be deemed to be an original but all of which
together shall constitute one and the same instrument.
25. Notice. Any notice required or permitted to be given shall be in
writing and may be personally served or delivered by courier or by confirmed
telecopy, and shall be deemed to be delivered at the time and date of receipt
(which shall include telephone line facsimile transmission). The addresses for
such communications shall be:
If to the Company:
LaserSight Incorporated
0000 Xxxxxxxxxx Xxxxxxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Telecopy: (000) 000-0000
Attn: Chief Financial Officer
With a copy to:
The Lowenbaum Partnership, L.L.C.
000 Xxxxx Xxxxxxx Xxxxxx, Xxxxx 000
Xx. Xxxxx, Xxxxxxxx 00000
Telecopy: (000) 000-0000
Attn: Xxxxxxx X. Xxxxxxx, Esq.
And:
Xxxxxxxxxxxx Xxxx & Xxxxxxxxx
0000 Xxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Telecopy: (000) 000-0000
Attn: Xxxx X. Xxxxxx, Esq.
If to the Holder:
Mercacorp, Inc.
care of:
Xxxxxxx, Xxxxxxx & Xxxxxx LLP
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopy: (000) 000-0000
Attn: Xxxxxx Xxxxxx, Esq.
S-1
IN WITNESS WHEREOF, the Company has caused this Warrant to be executed
by its officers thereunto duly authorized, as of the date below.
Dated as of: November 11, 1998
LASERSIGHT INCORPORATED
/s/Xxxxxxx X. Xxxxxx
By: ----------------------------
Xxxxxxx X. Xxxxxx, President
/s/Xxxxxxx X. Xxxxxx
Attest: ----------------------------
Xxxxxxx X. Xxxxxx, Secretary
ACCEPTED AND AGREED:
MERCACORP, INC.
By:------------------------
Title:---------------------
Date: November 11, 1998
FORM OF LEGAL OPINION
_____________, 1998
LaserSight Incorporated
0000 Xxxxxxxxxx Xxxx.
Suite 140
Orlando, Florida 32792
Re: Warrant Transfer
Gentlemen:
We have acted as counsel to [Mercacorp, Inc. or other holder] , a
corporation organized under the laws of ________________________ (the
"Company"), in connection with the transfer of the Warrant, dated November 11,
1998, to purchase 750,000 shares of common stock, $.001 par value, of LaserSight
Incorporated (the "Warrant") to _________________________ ("Transferee").
In connection with this opinion, we have examined originals or copies,
certified or otherwise identified to our satisfaction, of the Warrant and such
agreements, instruments, certificates, representations, documents and records,
and have made such other investigations, as we have deemed necessary or
appropriate as a basis for the opinions set forth herein. As to any facts
material to the opinions expressed herein, we have relied upon oral or written
statements and representations of officers and other representatives of the
Company and Transferee.
The Transferee has represented that it is acquiring the Warrant (i) for
investment and not for distribution or resale, and (ii) solely for Transferee's
own account and not as a nominee for any other person.
Based upon and subject to the foregoing, we are of the opinion that the
transfer of the Warrant from the Company to Transferee is exempt from the
registration requirements of the Securities Act of 1933 (the "Act").
We express no opinion as to the laws of any jurisdictions other than
the Federal securities laws of the United States of America in effect on the
date hereof, and we assume no obligation to revise or supplement this opinion
should such laws be changed by legislative or administrative action, judicial
decision or otherwise.
This opinion is solely for the benefit of you and your counsel and can
not be relied upon by any other person, corporation or entity.
NOTICE OF EXERCISE
LaserSight Incorporated Dated: ______________, 199___
(1) The undersigned hereby irrevocably elects to exercise the within
Warrant to the extent of purchasing shares of Common Stock and hereby makes
payment of in payment of the actual exercise price thereof.
------------------------------------------
INSTRUCTIONS FOR REGISTRATION OF STOCK
(2) Please issue a certificate or certificates representing said shares
of Common Stock in the name of the undersigned or in such other name as is
specified below:
Name:_________________________________________________________________________
(Please typewrite or print in block letters)
Name:_________________________________________________________________________
Address: __________________________________________________________
Signature:__________________________________________________________________
(All signatures must be guaranteed by an eligible guarantor institution that is
a member of a recognized medallion signature guaranty program.)
ASSIGNMENT FORM
FOR VALUE RECEIVED, the undersigned registered owner of this Warrant
hereby sells, assigns and transfers unto the Assignee named below all of the
rights of the undersigned under the within Warrant, with respect to the number
of shares of Common Stock set forth below:
Name:_________________________________________________________________________
(Please typewrite or print name of Assignee in block letters)
Address:_______________________________________________________________________
Number of Shares:______________________________________________________________
and does hereby irrevocably constitute and appoint
______________________________, attorney to make such transfer on the books of
LaserSight Incorporated, maintained for the purpose, with full power of
substitution in the premises.
Dated: ___________________________
Signature of Holder: ____________________________
The undersigned ASSIGNEE acknowledges that neither the within Warrant
nor, if the Shelf Registration Statement contemplated by Section 11 of this
Warrant has not been declared effective, any of the Warrant Shares (as defined
in the Warrant) have been registered under the Securities Act of 1933, and the
undersigned ASSIGNEE represents and warrants to the Company that the Warrant and
the Warrant Shares are being acquired for investment and not for distribution or
resale, solely for the undersigned's own account and not as a nominee for any
other person, and that the undersigned ASSIGNEE will not offer, sell, pledge or
otherwise transfer the Warrant or the Warrant Shares except (i) in compliance
with the requirements for an available exemption from such Securities Act and
any applicable state securities laws or (ii) pursuant to an effective
registration statement or qualification under such Securities Act and any
applicable state securities laws.
Dated: ___________________________
Signature of Assignee: ____________________________
(All signatures must be guaranteed by an eligible institution that is a member
of a recognized medallion signature guaranty program.)
