SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (date of earliest event reported): March 16, 1998
(March 13, 1998)
LASERSIGHT INCORPORATED
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Exact name of registrant as specified in its charter
Delaware
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State or other jurisdiction of incorporation
0-19671 65-0273162
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Commission File Number I.R.S. Employer
Identification No.
12161 Lackland Road, St. Louis, Missouri 63146
Address of Principal Executive Offices
Registrant's telephone number, including area code: (314) 469-3220
<PAGE>
Item 5. Other Events.
The Series B Preferred Stock Agreement dated March 13, 1998 is incorporated by
reference herein.
Item 7. Financial Statements, Pro Forma Financial Information and Exhibits.
(c) Exhibits
Exhibit 99 Series B Preferred Stock Agreement dated March 13, 1998
SIGNATURES
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Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
LaserSight Incorporated
Date: March 16, 1998 By: /s/ Michael R. Farris
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Michael R. Farris
Chief Executive Officer
EXHIBIT 99
SERIES B PREFERRED STOCK AGREEMENT
This SERIES B PREFERRED STOCK AGREEMENT ("Agreement") is dated as of
March 13, 1998 and is made by and among LASERSIGHT INCORPORATED, a Delaware
corporation ("LaserSight"), CC INVESTMENTS, LDC ("CC"), SHEPHERD INVESTMENTS
INTERNATIONAL, LTD. ("SII"), STARK INTERNATIONAL ("SI") and SOCIETE GENERALE
("SG" and together with CC and SII and SI, the "Holders"). This Agreement shall
not be effective until executed by LaserSight and all of the Holders, and the
date on which such parties have executed this Agreement shall be referred to
herein as the "Effective Date".
RECITALS
A. LaserSight and the Holders are parties to a Securities
Purchase Agreement, dated August 29, 1997 (the "Securities Purchase Agreement"),
pursuant to which the Holders have purchased from LaserSight shares of Series B
Convertible Participating Preferred Stock (the "Preferred Stock") subject to the
terms and conditions set forth in the Corrected Certificate of Designations,
Preferences and Rights in the form attached as an exhibit to the Securities
Purchase Agreement (the "Certificate of Designation").
B. In connection with the purchase of the Preferred Stock
LaserSight issued the Holders warrants (the "Original Warrants") granting the
Holders the right to purchase up to an aggregate of 750,000 shares of LaserSight
Common Stock, par value $.001 per share (the "Common Stock") and LaserSight made
other undertakings to the Holders in various other documents executed in
connection with the Securities Purchase Agreement and the Certificate of
Designation (the "Transaction Documents").
C. LaserSight and the Holders desire to enter into this
Agreement to document their understandings and agreements related to the
Preferred Stock and the Original Warrants.
NOW, THEREFORE, in consideration of the premises set forth herein and
for other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties agree as follows:
1. Defined Terms. All capitalized terms not otherwise defined herein
shall have the meaning given thereto in the Transaction Documents.
2. Ownership of Preferred Stock and Original Warrants. Column 1 of
Exhibit A sets forth the number of shares of Preferred Stock owned by each of
the Holders immediately after the closing of the transaction contemplated by the
Securities Purchase Agreement. After taking into account all pending Conversion
Notices which have been issued by the Holders, Column 2 of Exhibit A sets forth
the number of shares of Preferred Stock owned by each of the Holders as of the
Effective Date. Each of the Holders represents and warrants that as to such
Holder and as of the Effective Date there are no outstanding Conversion Notices
<PAGE>
which would effect the number of shares of Preferred Stock set forth opposite
such Holders name in Column 2 of Exhibit A. Column 3 of Exhibit A sets forth the
number of Original Warrants held by each of the Holders as of the Effective
Date.
3. Initial Lock-Up and Purchase Option.
(a) Initial Lock-Up. Each of the Holders agree that from the
Effective Date through June 12, 1998 (such period shall be referred to herein as
the "Initial Restricted Period") conversions of the Preferred Stock by the
Holders is hereby restricted so as to limit to 1,000,000 the number of shares of
Common Stock which could be issued as a result of a conversion of the Preferred
Stock. Each Holder's right to the 1,000,000 shares of Common Stock shall be
allocated based on a fraction, the numerator of which shall be the number of
shares of Preferred Stock held by such Holder as of the Effective Date (as set
forth on Column 2 of Exhibit A) and the denominator of which shall be the total
number of shares of Preferred Stock outstanding as of the Effective Date (as set
forth on Column 2 of Exhibit A).
(b) Conversion Price During Initial Restricted Period. During
the Initial Restricted Period, subject to the limitations contained in this
Section 3, shares of the Preferred Stock shall be converted into shares of
Common Stock utilizing the conversion price contemplated by the Certificate of
Designation.
(c) Termination of Initial Lock-Up. If during the Initial
Restricted Period there is a Material Adverse Change (as defined in this Section
3(c)), then any of the Holders have the option of terminating this Agreement as
to all Holders. Such option must be exercised by a Holder providing written
notice of such exercise to LaserSight within ten (10) business days after the
date of the Securities and Exchange Commission ("SEC") filing relating to the
Material Adverse Change. If a Material Adverse Change has occurred, then
LaserSight agrees to immediately disclose such Material Adverse Change on a Form
8-K or 10-Q filed by LaserSight with the SEC. For purposes of this Section 3(c),
Material Adverse Change shall mean that (i) LaserSight's Current Assets (as
defined herein) as of the months ending March 31, April 30 or May 31, 1998 are
less than one hundred ten percent (110%) of LaserSight's Current Liabilities (as
defined herein) as of the months ending March 31, April 30 or May 31, 1998,
respectively, (ii) LaserSight's income or loss from operations (calculated in
accordance with generally accepted accounting principles ("GAAP")) for the
quarter ending March 31, 1998 are, in the case of income from operations, less
than, and in the case of loss from operations, greater than, LaserSight's income
or loss from operations, as applicable (calculated in accordance with GAAP), for
the immediately preceding quarter, or (iii) after the Effective Date there has
occurred or been publicly disclosed any event, development or circumstance which
has caused a material adverse change in the financial condition, operating
results, assets, liabilities, operations or business prospects of LaserSight and
all of its subsidiaries taken as a whole. Within fifteen (15) days after the end
of April 30 and May 31, 1998 and within twenty (20) days after the end of March
31, 1998, LaserSight shall calculate LaserSight's Current Assets and Current
Liabilities for such month and on or before the conclusion of such fifteen (15)
day or twenty (20) day period, as applicable, LaserSight will file a Form 8-K if
for such month LaserSight's Current Assets are less than one hundred ten percent
(110%) of LaserSight's Current Liabilities. Such Form 8-K will contain the
selected balance sheet data utilized to calculate relevant Current Assets and
Current Liabilities.
<PAGE>
For purposes hereof, Current Assets shall mean all current assets of
LaserSight calculated in accordance with GAAP; and Current Liabilities shall
mean all current liabilities of LaserSight calculated in accordance with GAAP.
(d) Grant of Initial Purchase Option. Each of the Holders
agree that the following option is hereby granted in connection with the
Preferred Stock (the following option shall be collectively referred to as the
"Initial Purchase Option"):
At any time or from time to time during the Initial Restricted
Period, LaserSight shall have an option from time to time to
require the Holders to sell to LaserSight all or any portion
of Preferred Stock then held by such Holder at a price equal
to 120% of the Face Amount of Preferred Stock which is so
purchased by LaserSight.
(e) Exercise of Option. LaserSight may only exercise the
Initial Purchase Option by purchasing a pro rata amount (which shall be
determined as of the date LaserSight provides notice of an exercise of the
Initial Purchase Option based on a fraction the numerator of which is the number
of shares of the Preferred Stock then held by a Holder and the denominator of
which is the total number of shares of the Preferred Stock then outstanding) of
the Preferred Stock from each of the Holders. LaserSight may exercise the
Initial Purchase Option by (i) giving written notice thereof (specifying the
number of shares of the Preferred Stock to be purchased and the closing date of
such purchase) to the Holders at least three (3) business days but no more than
ten (10) business days prior to the date on which the Preferred Stock shall be
purchased ("Initial Purchase Notice"), and (ii) segregating into a separate
account the funds necessary to consummate the purchase contemplated by the
Initial Purchase Notice, which funds may only be utilized to purchase shares of
the Preferred Stock. LaserSight will not be eligible to exercise the Initial
Purchase Option with respect to those shares of the Preferred Stock which are
the subject of a Notice of Conversion provided to LaserSight by the Holders
prior to the Holder's receipt (as evidenced by a signed receipt or an electronic
confirmation of delivery) of an Initial Purchase Notice, provided that during
the Initial Restricted Period the Holders will only be able to provide a Notice
of Conversion which is consistent with the conversion restrictions contain in
Section 3(a). Once LaserSight has provided an Initial Purchase Notice the
Holders will not be able to convert those shares of the Preferred Stock covered
by such Purchase Notice into shares of Common Stock, provided that the
restrictions in this sentence shall not be valid if the purchase contemplated by
the Initial Purchase Notice is not consummated on or before the closing date
specified in the Initial Purchase Notice solely as a result of LaserSight's
actions or failure to act.
(f) Closing of Purchase. Each of the Holders agree that if
LaserSight has exercised the Initial Purchase Option, then upon payment of the
consideration contemplated by this Agreement on the closing date specified in
the Initial Purchase Notice (i) the Preferred Stock will be delivered to
LaserSight free and clear of any claim, lien or encumbrance of any type, and
(ii) the certificates relating to the shares to be purchased shall be duly
executed for transfer or accompanied by fully executed stock powers.
<PAGE>
(g) Consequences of Termination. If this Agreement is
terminated by a Holder pursuant to Section 3(c) then (i) the Initial Restricted
Period and the restrictions contained in Section 3(a) shall automatically
terminate and be of no further force or effect, (ii) except for purchases
pursuant to an Initial Repurchase Notice issued prior to such termination, the
Initial Purchase Option shall terminate and be of no further force or effect,
and (iii) except for those obligations under Section 3(h), which shall survive
such termination, all other rights and obligations under this Agreement shall
terminate.
(h) Consideration for Agreements. If for any reason or no
reason the Approvals (as defined herein) are not obtained on or before June 12,
1998 or if this Agreement is terminated pursuant to Section 3(c), then in
consideration for the Holders agreeing to the terms and conditions of this
Section 3, on or before June 16, 1998 LaserSight shall issue to the Holders, in
the aggregate, warrants to acquire up to seven hundred fifty thousand (750,000)
shares of Common Stock (the "New Warrants"). The New Warrants shall be in a form
which is substantially similar to the Original Warrants (e.g., expire on August
29, 2002, etc.) and agreed to by the Holders and LaserSight. The aggregate
number of the New Warrants would be allocated among the Holders as follows:
CC - 234,375
SII - 187,500
SI - 187,500
SG - 140,625
The per share exercise price of the New Warrants would be one hundred fifteen
percent (115%) of the average Closing Bid Prices of the Common Stock (as
reported by Bloomberg Financial Markets) for the five (5) consecutive trading
days beginning on the date immediately following the later of (i) LaserSight's
public announcement of LaserSight's results from operations for the period ended
December 31, 1997, or (ii) LaserSight's public announcement of this Agreement
(such five (5) trading day period shall be referred to herein as the "Pricing
Period"), provided that if during the Pricing Period LaserSight issues a press
release, then the per share exercise price of the New Warrants shall be the
lower of (A) one hundred fifteen percent (115%) of the average Closing Bid
Prices of the Common Stock (as reported by Bloomberg Financial Markets) for the
Pricing Period, or (ii) one hundred fifteen percent (115%) of the average
Closing Bid Prices of the Common Stock (as reported by Bloomberg Financial
Markets) for the five (5) day trading period immediately prior to the date
during the Pricing Period on which such press release was issued. During the
first two (2) trading days of the Pricing Period LaserSight will not issue a
press release unless LaserSight's outside securities counsel advises LaserSight
that all of the developments and events described in such press release are
legally required to be disclosed during this period and such press release does
not contain any developments or events not required to be disclosed. The per
share exercise price calculated pursuant to this paragraph will be referred to
herein as the "Current Exercise Price".
<PAGE>
4. Extended Lock-Up and Purchase Option.
(a) Change in Certificate of Designation and Original
Warrants. At LaserSight's annual meeting of stockholders to be held on June 12,
1998 LaserSight agrees to propose, for stockholder approval, the following two
proposals:
Proposal One
Section III F. of the Certificate of Designation be deleted
and be replaced with the following:
F. "Fixed Conversion Price" means either (i) $6.68
(subject to equitable adjustment for any stock
splits, stock dividends, reclassifications or similar
events during such twenty (20) trading day period),
or (ii) if the Extended Restricted Period (as defined
herein) is not terminated prior to September 14,
1998, the lesser of (A) $6.68, or (B) 110% of the
average Closing Bid Prices of the Common Stock (as
reported by Bloomberg Financial Markets) for the
twenty (20) consecutive trading days ending on the
last day of the Extended Restricted Period (subject
to equitable adjustment for any stock splits, stock
dividends, reclassifications or similar events during
such twenty (20) trading day period)), and shall be
subject to adjustment as provided herein. For
purposes hereof, "Extended Restricted Period" shall
have the meaning given thereto in that certain Series
B Preferred Stock Agreement, dated March 13, 1998,
among the Holders and the Company.
Proposal Two
The Exercise Price (as defined in the Original
Warrants) will be amended to be the Current Exercise
Price.
The Holders acknowledge that Proposal One will also require the approval or
waiver of Foothill Capital Corporation ("Foothill"). LaserSight will use all
reasonable efforts to obtain Foothill's approval to such amendment. The approval
of the stockholders of Proposal One and Proposal Two and the approval or waiver
of Foothill of Proposal One shall be collectively referred to as the
"Approvals".
(b) Consideration for Stockholder Approval. If all of the
Approvals are obtained on or prior to June 12, 1998, then, and only then, in
consideration for such Approvals the Holders agree to the terms and conditions
of this Section 4.
(c) Extended Lock-Up. Each of the Holders agree that from the
date of the latest Approval through September 14, 1998 (such period shall be
referred to herein as the "Extended Restricted Period") conversions of the
Preferred Stock by the Holders is hereby restricted so as to limit to 1,000,000
(as reduced by the number of shares of Common Stock which were issued during the
<PAGE>
Initial Restricted Period as a result of conversions of the Preferred Stock),
the number of shares of Common Stock which could be issued as a result of a
conversion of the Preferred Stock. Each Holder's right to the 1,000,000 (as
reduced by the number of shares of Common Stock which were issued during the
Initial Restricted Period as a result of conversions of the Preferred Stock)
shares of Common Stock shall be allocated based on a fraction, the numerator of
which shall be the number of shares of Preferred Stock held by such Holder as of
the Effective Date (as set forth on Column 2 of Exhibit A) and the denominator
of which shall be the total number of shares of Preferred Stock outstanding as
of the Effective Date (as set forth on Column 2 of Exhibit A).
(d) Conversion Price During Extended Restricted Period. During
the Extended Restricted Period, subject to the limitations contained in this
Section 4, shares of Preferred Stock shall be converted into shares of Common
Stock utilizing the conversion price contemplated by the Certificate of
Designation as amended pursuant to Proposal One.
(e) Termination of Extended Lock-Up. If during the Extended
Restricted Period there is a Material Adverse Change (as defined in this Section
4(e)), then any of the Holders have the option of terminating this Agreement as
to all Holders. Such option must be exercised by a Holder providing written
notice of such exercise to LaserSight within ten (10) business days after the
date of the SEC filing relating to the Material Adverse Change. If a Material
Adverse Change has occurred, then LaserSight agrees to immediately disclose such
Material Adverse Change on a Form 8-K or 10-Q filed by LaserSight with the SEC.
For purposes of this Section 4(e), Material Adverse Change shall mean that (i)
LaserSight's Current Assets as of the months ending June 30, July 31 or August
31, 1998 are less than one hundred ten percent (110%) of LaserSight's Current
Liabilities as of the months ending June 30, July 31 or August 31, 1998,
respectively, (ii) LaserSight's income or loss from operations (calculated in
accordance with GAAP) for the quarter ending June 30, 1998 are, in the case of
income from operations, less than, and in the case of loss from operations,
greater than, LaserSight's income or loss from operations, as applicable
(calculated in accordance with GAAP), for the immediately preceding quarter, or
(iii) after the Effective Date there has occurred or been publicly disclosed any
event, development or circumstance which has caused a material adverse change in
the financial condition, operating results, assets, liabilities, operations or
business prospects of LaserSight and all of its subsidiaries taken as a whole.
Within fifteen (15) days after the end of July 31, 1998 and within twenty (20)
days after the end of June 30, 1998, LaserSight shall calculate LaserSight's
Current Assets and Current Liabilities for such month and on or before the
conclusion of such fifteen (15) day or twenty (20) day period, as applicable,
LaserSight will file a Form 8-K if for such month LaserSight's Current Assets
are less than one hundred ten percent (110%) of LaserSight's Current
Liabilities. Such Form 8-K will contain the selected balance sheet data utilized
to calculate relevant Current Assets and Current Liabilities.
(f) Grant of Extended Purchase Option. Each of the Holders
agree that upon receipt of the Approvals the following option will be granted in
connection with the Preferred Stock (the following option shall be collectively
referred to as the "Extended Purchase Option"):
<PAGE>
At any time or from time to time during the Extended
Restricted Period, LaserSight shall have an option from time
to time to require the Holders to sell to LaserSight all or
any portion of Preferred Stock then held by such Holder at a
price equal to 120% of the Face Amount of Preferred Stock
which is so purchased by LaserSight.
(g) Exercise of Option. LaserSight may only exercise the
Extended Purchase Option by purchasing a pro rata amount (which shall be
determined as of the date LaserSight provides notice of an exercise of the
Extended Purchase Option based on a fraction the numerator of which is the
number of shares of the Preferred Stock then held by a Holder and the
denominator of which is the total number of shares of the Preferred Stock then
outstanding) of the Preferred Stock from each of the Holders. LaserSight may
exercise the Extended Purchase Option by (i) giving written notice thereof
(specifying the number of shares of the Preferred Stock to be purchased and the
closing date of such purchase) to the Holders at least three (3) business days
but no more than ten (10) business days prior to the date on which the Preferred
Stock shall be purchased ("Extended Purchase Notice"), and (ii) segregating into
a separate account the funds necessary to consummate the purchase contemplated
by the Extended Purchase Notice, which funds may only be utilized to purchase
shares of the Preferred Stock. LaserSight will not be eligible to exercise the
Extended Purchase Option with respect to those shares of the Preferred Stock
which are the subject of a Notice of Conversion provided to LaserSight by the
Holders prior to the Holder's receipt (as evidenced by a signed receipt or an
electronic confirmation of delivery) of an Extended Purchase Notice, provided
that during the Extended Restricted Period the Holders will only be able to
provide a Notice of Conversion which is consistent with the conversion
restrictions contain in Section 4(c). Once LaserSight has provided an Extended
Purchase Notice the Holders will not be able to convert those shares of the
Preferred Stock covered by such Purchase Notice into shares of Common Stock,
provided that the restrictions in this sentence shall not be valid if the
purchase contemplated by the Extended Purchase Notice is not consummated on or
before the closing date specified in the Extended Purchase Notice solely as a
result of LaserSight's actions or failure to act.
(h) Closing of Purchase. Each of the Holders agree that if
LaserSight has exercised the Extended Purchase Option, then upon payment of the
consideration contemplated by this Agreement on the closing date specified in
the Extended Purchase Notice (i) the Preferred Stock will be delivered to
LaserSight free and clear of any claim, lien or encumbrance of any type, and
(ii) the certificates relating to the shares to be purchased shall be duly
executed for transfer or accompanied by fully executed stock powers.
(i) Actions After Approvals. Within ten (10) days after
obtaining all of the Approvals LaserSight shall (i) file with the Office of the
Secretary of State of the State of Delaware the amendment to the Certificate of
Designation contemplated by Proposal One, and (ii) amend, amend and restate or
exchange the Original Warrants in order to document the repricing thereof
contemplated by Proposal Two.
<PAGE>
(j) Conditional Obligations. The terms and conditions of
Section 4(c), (d), (e), (f), (g), (h) and (i) will only be binding upon the
Holders and LaserSight if all of the Approvals are received on or prior to June
12, 1998, if all Approvals are not received on or prior to June 12, 1998 such
terms and conditions shall be null and void and have no force or effect.
5. Notice to Purchasers. Each Holder agrees that, prior to selling,
pledging or otherwise transferring any of its shares of Preferred Stock, such
Holder will cause each buyer, pledgee or transferee, as applicable, to receive
written notice of this Agreement and to agree in writing that such buyer,
pledgee or transferee is acquiring such shares subject to the terms and
conditions of this Agreement.
6. Further Assurances. Each party shall do and perform, or cause to be
done and performed, all such further acts and things, and shall execute and
deliver all such other agreements, certificates, instruments and documents, as
the other party may reasonably request in order to carry out the intent and
accomplish the purposes of this Agreement and the consummation of the
transactions contemplated hereby.
7. Miscellaneous. Except as expressly set forth herein, the Holders do
not waive any rights under the Transaction Documents. This Agreement may be
executed in one or more counterparts, each of which shall be deemed an original,
but all of which together shall constitute one in the same instrument. Notices
pursuant to this Agreement shall be made in accordance with the terms of Section
8.6 of the Securities Purchase Agreement. This Agreement shall be governed by,
and construed in accordance with, the laws of the State of New York, without
regard to such state's conflict of law principles. This Agreement and the
Transaction Documents represents the entire agreement of the parties hereto with
respect to the subject matter hereof, and supersedes all prior discussions,
negotiations and agreements relating to such subject matter. No later than one
(1) business day after the Effective Date LaserSight shall file a Form 8-K
attaching this Agreement as an exhibit thereto.
<PAGE>
IN WITNESS WHEREOF the parties hereto have executed this Agreement as
of the date first above written.
CC INVESTMENTS, LDC LASERSIGHT INCORPORATED
By: Castle Creek Partners, LLC
By: /s/ Steve Martin By: /s/ Michael R. Farris
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Its: Principal Its: President
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Date: 3/13/98 Date: 3/13/98
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SHEPHERD INVESTMENTS
INTERNATIONAL, LTD.
By: /s/ Michael A. Roth
-------------------------------
Title: Member of Investment Manager
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Date:
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STARK INTERNATIONAL
By: /s/ Michael A. Roth
-------------------------------
Title: Member of Managing GP
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Date:
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SOCIETE GENERALE
By: /s/ Guillaume Pollet
--------------------------------
Title: First Vice President
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Date:
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<PAGE>
EXHIBIT A
Ownership Interests
Column 1 Column 2 Column 3
Original Current Original
Series B Holder Ownership Ownership* Warrants
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CC 500 131 234,375
SII 400 196 187,500
SI 400 196 187,500
SG 300 177 140,625
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TOTAL 1,600 700 750,000
* After taking into account all pending Conversion Notices which have
been issued by the Holders
