{"id":43927,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/shareholders-agreement-lca-vision-inc-and-summit-technology.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"shareholders-agreement-lca-vision-inc-and-summit-technology","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/securities\/shareholders-agreement-lca-vision-inc-and-summit-technology.html","title":{"rendered":"Shareholders&#8217; Agreement &#8211; LCA-Vision Inc. and Summit Technology Inc."},"content":{"rendered":"<pre>\n\n                                 EXECUTION COPY\n\n                             SHAREHOLDERS' AGREEMENT\n\n      This Shareholders' Agreement is made and entered into this 18th day of\nAugust, 1997 by and between LCA-Vision Inc., a Delaware corporation ('LCA'),\nSummit Technology, Inc., a Massachusetts corporation ('Summit') and the LCA\nshareholders listed on Schedule A hereto ('Shareholders').\n\n      WHEREAS, the LCA and Summit have entered into a certain Acquisition\nAgreement dated as of even date herewith (the 'Acquisition Agreement') pursuant\nto which LCA is acquiring from Summit all of its shares of common stock of\nRefractive Centers International, Inc., a Delaware Corporation ('RCII'), in\nconsideration for shares of LCA common stock; and\n\n      WHEREAS, one of the conditions to the closing of the Acquisition Agreement\nis the execution and delivery of this Shareholders' Agreement.\n\n      NOW THEREFORE, in consideration of the foregoing and for other good and\nvaluable consideration, the receipt and sufficiency of which are hereby\nacknowledged, the parties agree as follows:\n\n                                    ARTICLE I\n\n                                   DEFINITIONS\n\n      Capitalized terms used in this Agreement and not otherwise defined shall\nhave the meanings ascribed to them in the Acquisition Agreement.\n\n\n\n                                   ARTICLE II\n\n                               BOARD OF DIRECTORS\n\n      2.1   Nomination of Directors. For the term of this Agreement, the\nShareholders agree, consistent with their fiduciary duties in any and all\ncapacities as shareholders, officers and directors of LCA, to cause LCA, whether\nitself or through its Board of Directors (the 'Board') or a committee thereof,\n(a) to set the number of directors that constitute the full Board at five (5)\nand (b) to nominate individuals for election to the Board at each annual meeting\nof the shareholders of LCA in the manner provided in this Agreement (the\n'Designated Nominees'). The following individuals shall be the initial\nDesignated Nominees:\n\n\n\n\n\n\n      Stephen N. Joffe\n      John C. Hassan\n      John H. Gutfreund\n      Ronald Herskowitz\n      William O. Coleman\n\n      2.2   Alternate Designated Nominees. If there is a vacancy in the Board\noccurring between annual meetings, or if one or more of the initial Designated\nNominees shall decline to stand for election to the Board, the Shareholders and\nSummit shall appoint one or more alternate Designated Nominees (each an\n'Alternate Designated Nominee') in the following manner. The Shareholders shall\nselect an individual to serve as the Alternate Designated Nominee, which\nindividual shall be independent both of LCA (except through proposed service as\na member of the Board) and of the Shareholders. The selected individual shall be\nsubject to Summit's approval, which shall not unreasonably be withheld. Summit's\napproval shall be deemed given if Summit has not responded to the Shareholders\nwithin thirty (30) days of notice of the identity of the selected individual.\nUpon selection and approval, such Alternate Designated Nominee shall for all\npurposes be deemed a Designated Nominee under this Agreement.\n\n      2.3   Voting of Shares. In any and all elections of directors of the \nBoard, whether in person or by proxy at a meeting of LCA shareholders, or at a\nmeeting of the Board called for the purpose of filling a vacancy in the Board\n(to the extent not inconsistent with the fiduciary duties of any director who is\nalso a Shareholder), the Shareholders and Summit shall vote all shares of LCA\nstock owned by them to elect the Designated Nominees to the Board and shall vote\nagainst any proposal that would violate any term or provision of this Agreement.\n\n\n\n                                   ARTICLE III\n\n                            COVENANTS OF SHAREHOLDERS\n\n      3.1   Payment of LCA Shareholder Debt. The Shareholders agree that they \nwill not accept, demand or request any payment on the LCA Shareholder Debt\nunless the earnings of LCA for the prior fiscal year (before taxes, amortization\nof goodwill and depreciation, net of capital expenditures for such fiscal year)\nexceeded One Million Dollars ($1,000,000), and agree that payment in such event\nmay be made only to the extent of twenty-five percent (25%) of such excess. The\nShareholders understand and agree that LCA shall cause the instruments\nrepresenting the LCA Shareholder Debt to contain a legend to the effect of the\nforegoing.\n\n      3.2   Conversion of LCA Preferred Stock. The Shareholders agree that the \nper share Conversion Price of the LCA Interim Series Preferred Stock shall not\nbe less than Three and 50\/100 Dollars ($3.50) per share.\n\n\n                                      -2-\n\n\n\n\n      3.3   Arms' Length Transactions. During the term of this Agreement, none \nof the Shareholders shall enter into any transaction with LCA unless such\ntransaction is at fair market value and approved by a majority of LCA's\nindependent directors.\n\n\n\n                                   ARTICLE IV\n\n                                  MISCELLANEOUS\n\n      4.1   Binding Effect. This Agreement shall be binding upon the parties\nhereto and their respective heirs, successors and assigns. All shares of LCA\nCommon Stock and LCA Preferred Stock at any time owned by a party to this\nAgreement shall be subject to this Agreement. Shares of LCA Common Stock and LCA\nPreferred Stock can be transferred by a party only if the transferee of such\nshares agrees to be bound by this Agreement, except for transfers by Summit\npursuant to or not in violation of this Agreement or the Registration Rights\nAgreement or to any Person who is not an Affiliate of Summit.\n\n      4.2   Duration of Agreement. This Agreement shall remain in effect until \nthe earlier of (i) the date which is five (5) years from the date of this\nAgreement, and (ii) the date on which Summit owns less than five percent (5%) of\nthe issued and outstanding shares of LCA Common Stock. At any time that Summit\nowns less than such percentage, this Agreement shall terminate and be of no\nfurther force and effect, without the necessity of any action on the part of any\nof the parties hereto.\n\n      4.3   Injunctive Relief. It is acknowledged that it would be impossible to\nmeasure the damages that would be suffered by a party to this Agreement if the\nother parties were to fail to comply with the provisions of this Agreement, and\nthat in the event of any such failure, monetary damages would not provide the\ninjured party an adequate remedy. The parties shall, therefore, be entitled to\nseek specific performance and injunctive relief for any breach of this Agreement\nin a court of competent jurisdiction.\n\n     4.4    Governing Law. This Agreement shall be governed by, and construed in\naccordance with, the laws of the State of Delaware without application of\nprinciples of conflict of laws, any suit for the enforcement of this Agreement\nmay be brought in the courts of that state and all parties consent to the\nexclusive jurisdiction of such courts and to service of process in any such suit\nbeing made upon any party by mail at their respective addresses set forth in\nbelow.\n\n     4.5    Notices. All notices hereunder shall be in writing and shall be \ndeemed to have been duly given when actually received. Notices hereunder may be\ngiven (i) by hand, (ii) by certified mail, postage prepaid, return receipt\nrequested, (iii) by a courier service which guaranties delivery within one\nbusiness day or (iv) by telecopy to a party; in each case to the parties at\ntheir \n\n\n                                      -3-\n\n\n\n\nrespective addresses set forth below, or to such other address as a party may\nspecify by notice:\n\n\nIf to Summit or RCII:                   If to LCA:\n\nSummit Technology, Inc.                 LCA-Vision, Inc.\n21 Hickory Drive                        7840 Montgomery Road\nWaltham, MA  02154                      Cincinnati, OH 45236\nAttn:  Chief Executive Officer          Attn:  President\n\nwith a copy to:                         with a copy to:\n\nGoldstein &amp; Manello, P.C.               Dinsmore &amp; Shohl, L.L.P.\n265 Franklin Street                     1900 Chemed Center\nBoston, MA  02110                       255 East Fifth Street\nAttn:  Lauren Jennings, Esq.            Cincinnati, OH 45202-3172\n                                        Attn:  Charles F. Hertlein, Jr., Esq.\n\nIf to the Shareholders:\n\nStephen N. Joffe, M.D.                  Sandra F.W. Joffe\n8750 Red Fox Lane                       8750 Red Fox Lane\nCincinnati, Ohio 45243                  Cincinnati, Ohio 45243\n\nCraig P.R. Joffe\n22 Bigelow Street, #2B\nCambridge, MA 02139\n\n      4.6   Waiver. Waiver of any provision of this Agreement, in whole or in\npart, in any one instance shall not constitute a waiver of any other provision\nin the same instance, nor any waiver of the same or another provision in another\ninstance, but each provision shall continue in full force and effect with\nrespect to any other then-existing or subsequent breaches.\n\n      4.7   Entire Agreement. This Agreement, together with the Acquisition\nAgreement, the Confidentiality Agreement and the Registration Rights Agreement\nconstitutes the entire agreement between the parties hereto with respect to its\nsubject matter, superseding all prior negotiations, communications, contracts\nand other agreements, courses of dealing and the like between or among the\nparties.\n\n      4.8   Severability. If any provision or provisions of this Agreement shall\nbe held to be invalid, illegal or unenforceable, the validity, legality and\nenforceability of the remaining provisions shall not in any way be affected or\nimpaired thereby and this Agreement shall be interpreted as if such provision or\nprovisions were not a part hereof. Moreover, if any provision of this Agreement\nshall for any reason be held to be excessively broad as to time, duration,\ngeographical scope, activity or subject, it shall be construed by\n\n\n                                      -4-\n\n\n\n\nlimiting and reducing it, so as to be enforceable to the extent compatible with\napplicable laws as they shall then be in force.\n\n      4.9   Amendment. This Agreement may be amended, modified or terminated, \nand any right under this Agreement may be waived in whole or in part, only by a\nwriting signed by all parties hereto.\n\n      4.10  Construction. The parties have participated jointly in the\nnegotiation and drafting of this Agreement. In the event an ambiguity or\nquestion of intent or interpretation arises, this Agreement shall be construed\nas if drafted jointly by the parties and no presumption or burden of proof shall\narise favoring or disfavoring any party by virtue of the authorship of any of\nthe provisions of this Agreement.\n\n      4.11  Counterparts. This Agreement may be executed in one or more \ncounterparts, all of which shall constitute one and the same instrument.\n\n      4.12  Defaults. Any breach or default by a party under the Acquisition\nAgreement shall be deemed a default by such party under this Agreement.\n\n      IN WITNESS WHEREOF, the parties hereto, by their duly authorized officers\nin the case of corporate parties, have executed this Agreement under seal, as of\nthe day and year first above written.\n\nSUMMIT TECHNOLOGY, INC.                 LCA-VISION INC.\n\n\nBy:\/s\/Robert J. Palmisano             By: \/s\/Stephen N. Joffe\n   __________________________             __________________________          \n   Robert J. Palmisano, Chief             Stephen N. Joffe, President\n    Executive Officer\n\n\nSHAREHOLDERS:\n\n\/s\/Stephen N. Joffe\n_______________________\nStephen N. Joffe\n\n\/s\/Sandra F.W. Joffe\n_______________________\nSandra F.W. Joffe\n\n\/s\/Craig P.R. Joffe\n_______________________\nCraig P.R. Joffe\n\n\n\n                                      -5-\n\n\n\n\n                                   SCHEDULE A\n\n\n\n\n                                Stephen N. Joffe\n\n                                Sandra F.W. Joffe\n\n                                Craig P.R. Joffe\n\n\n\n\n\n<\/pre>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[8028,8967],"corporate_contracts_industries":[9436,9438],"corporate_contracts_types":[9629,9633],"class_list":["post-43927","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-lca-vision-inc","corporate_contracts_companies-summit-autonomous-inc","corporate_contracts_industries-health__instruments","corporate_contracts_industries-health__misc","corporate_contracts_types-securities","corporate_contracts_types-securities__shareholder"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/43927","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts"}],"about":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/types\/corporate_contracts"}],"wp:attachment":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/media?parent=43927"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=43927"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=43927"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=43927"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}