EXHIBIT 99.4
STANDSTILL AGREEMENT
STANDSTILL AGREEMENT (this "AGREEMENT") dated as of February 12, 1998
by and between OPHTHALMIC IMAGING SYSTEMS ("OIS"), a California corporation
having its principal office located in Sacramento, California, and PREMIER LASER
SYSTEMS, INC. ("PREMIER"), a California corporation having its principal office
located in Irvine, California.
WITNESSTH
WHEREAS, OIS and Premier have entered into good faith discussions
concerning a possible business combination of their corporations; and
WHEREAS, the Board of Directors of both OIS and Premier have determined
that it is in the best interest of their respective corporations and
shareholders to negotiate the terms of a potential business combination of the
two corporations; and
WHEREAS, in an effort to foster and assist such negotiations, OIS and
Premier wish to provide certain arrangements with respect to the relationship
between them during the period of their discussions and negotiations.
NOW, THEREFORE, in consideration of the aforesaid and the mutual
representations, warrants, covenants, and agreements hereinafter made, the
parties hereto agree as follows:
SECTION 1. STANDSTILL AGREEMENT OF PREMIER.
(a) ACTIVITIES WITH RESPECT TO OIS SECURITIES. From and
after the date hereof until the Termination Date (as defined hereinafter),
without the prior written consent of OIS:
(i) Neither Premier nor any of its Affiliates (as
defined hereinafter) or Associates (as defined hereinafter) shall acquire, or
agree, offer, seek, or propose to acquire, directly or indirectly, of record or
beneficially (as that term is defined in Rule 13d-3 under the Securities
Exchange Act of 1934, as amended (the "EXCHANGE ACT")), or otherwise, or any
other means, any shares of OIS common stock, no par value per share (the "COMMON
STOCK"), or any other securities of OIS (together "OIS SECURITIES"), including
any options or other rights to acquire OIS Securities (whether from third
parties or others).
(ii) Neither Premier nor any of its Affiliates or
Associates shall deposit any OIS Securities in a voting trust or, except
pursuant to this Agreement, subject any OIS Securities to any arrangement,
understanding, or agreement with respect to the voting, holding, or disposition
of such OIS Securities.
(iii) Neither Premier nor any of its Affiliates or
Associates shall join a partnership, limited partnership, syndicate, or other
group, or otherwise act in concert with any other person, for the purpose of
acquiring, holding, voting or disposing of OIS Securities within the meaning of
Section 13(d)(3) of the Exchange Act (in each case other than solely with one or
more of its Affiliates).
(iv) Neither Premier nor any of its Affiliates or
Associates will call, seek to have called, or cause to be called, any meeting of
shareholders of OIS, and neither Premier nor any of its Affiliates or Associates
shall take any action by written consent in lieu of a meeting of OIS
shareholders.
(v) Neither Premier nor any of its Affiliates or
Associates shall initiate, propose, or otherwise solicit shareholders of OIS for
the approval of one or more shareholder proposals, or induce or attempt to
induce any other person to initiate any shareholder proposal.
(vi) Neither Premier nor any of its Affiliates or
Associates shall seek representation on the Board of Directors of OIS or solicit
proxies with respect to OIS Securities under any circumstances, submit proposals
for the vote of shareholders of OIS, or become a "participant" in any "election
contest" relating to the election of directors of OIS (as such terms are used on
the date hereof in rule 14a-11 of Regulation 14A under the Exchange Act).
(vii) Neither Premier nor any of its Affiliates or
Associates shall solicit any other Person to purchase any OIS Securities,
whether or not held by them.
(viii) Neither Premier nor any of its Affiliates or
Associates shall take any action (or permit any investment banker, attorney,
accountant, or any other representative retained by any of them to take any
action as part of such retention), directly or indirectly, to acquire or effect
a change of Control (as defined hereinafter) of OIS or initiate contact with any
Person in an effort to solicit, encourage, or assist such Person in a proposal
for an Acquisition Transaction (as defined hereinafter).
(ix) Neither Premier nor any of its Affiliates or
Associates shall bid for, acquire, or otherwise seek to obtain, directly or
indirectly, an interest of any nature in any property which OIS owns or in which
OIS has an interest (including any property with respect to which OIS has an
option or other contractual right to acquire or to obtain such an interest), nor
shall Premier or any of its Affiliates or Associates obtain any rights or
options to acquire such property or assets (whether from third parties or
others).
(x) Premier shall promptly notify OIS of any sale or
proposed sale of OIS Securities presently owned, directly or indirectly, by
Premier or any of its Affiliates or Associates to any third party. This Section
1(a)(x) shall not be deemed to relieve any party from its obligations, if any,
under the federal securities laws to refrain from selling securities when privy
to material nonpublic information.
(b) ACTIVITIES WITH RESPECT TO OIS EMPLOYEES. Without the
prior written consent of OIS:
(i) Neither Premier nor any of its Affiliates or
Associates shall initiate or engage in, or cause to be initiated or engaged in,
any communication or other contact with any employee, director, shareholder,
vendor, customer, or supplier of OIS, except for contacts in the ordinary course
of business unrelated to any possible Acquisition Transaction involving OIS.
(ii) Neither Premier nor any of its Affiliates or
Associates shall, for the two-year period from the date of this Agreement,
solicit or cause to be solicited the employment of or hire any executive officer
or any managerial level or other key employee of OIS. Any such consent granted
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by OIS is revocable by OIS at any time for any reason whatsoever. The term
"solicit or cause to be solicited the employment of or hire" shall be deemed not
to include general solicitations of employment not specifically directed towards
employees of OIS or hiring which results from such general solicitation. The
phrase "solicit or cause to be solicited the employment of or hire" also shall
be deemed not to include (A) any executive search or employment resulting from
an executive search, by a third party in which such third party is not steered
by Premier or any of its Affiliates or Associates, or any of their
representatives or agents to OIS or to a specific employee of OIS or (B)
solicitations for hire initiated by an employee of OIS.
SECTION 2. NO SOLICITATION BY OIS. Except with respect to the
negotiations with Premier, from the date of this Agreement until the Termination
Date:
(a) Neither OIS nor any of its Affiliates or Associates
shall, directly or indirectly, solicit an Acquisition Proposal by any Person.
(b) Except to the extent necessary to comply with fiduciary
duties of the OIS Board of Directors as determined after consultation with its
legal counsel, neither OIS nor any of its Affiliates or Associates shall
negotiate with respect to an Acquisition Proposal.
(c) OIS shall advise Premier promptly in writing of any
inquiry or proposal received by OIS relating to any Acquisition Proposal,
including the material terms thereof.
(d) OIS and each of its Affiliates and Associates shall
discontinue any existing activities, discussions, or negotiations with any
Persons conducted heretofore with respect to any Acquisition Transaction.
SECTION 3. REPRESENTATIONS AND WARRANTIES.
(a) REPRESENTATIONS AND WARRANTIES OF PREMIER.
(i) Premier is a corporation duly organized, validly
existing, and in good standing under the laws of the State of California, with
corporate power to own and operate its properties and to conduct its business as
now conducted.
(ii) Premier has full legal right, power, and
authority to enter into and perform this Agreement, and the execution and
delivery of this Agreement by Premier and compliance with the covenants and
agreements contained herein have been duly authorized by the Board of Directors
of Premier and require no other shareholder or Board of Director action. This
Agreement constitutes a valid and binding agreement of Premier.
(b) REPRESENTATIONS AND WARRANTIES OF OIS.
(i) OIS is a corporation duly organized, validly
existing, and in good standing under the laws of the State of California, with
corporate power to own and operate its properties and to conduct its business as
now conducted.
(ii) OIS has full legal right, power, and authority
to enter into and perform this Agreement, and the execution and delivery of this
Agreement by OIS and compliance with the
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covenants and agreements contained herein have been duly authorized by the Board
of Directors of OIS and require no other shareholder or Board of Director
action. This Agreement constitutes a valid and binding agreement of OIS.
SECTION 4. TERM OF AGREEMENT. Except as otherwise provided herein,
the respective covenants, agreements, representations, and warranties of OIS and
Premier contained in this Agreement shall continue in full force and effect
until March 6, 1998 (the "TERMINATION DATE").
SECTION 5. CERTAIN DEFINITIONS. Except as otherwise provided
herein, the capitalized terms below shall have the following meanings:
(i) "ACQUISITION TRANSACTION" shall mean any tender
offer or exchange offer or any proposal for a merger, acquisition of all of the
Common Stock, OIS Securities, or assets of, or other business combination
involving OIS or any proposal or offer to acquire in any manner a substantial
equity interest in, or a substantial portion of the assets of, OIS.
(ii) "AFFILIATE" shall have the meaning ascribed to
such term in Rule 12b-2 promulgated under the Exchange Act, as in effect on the
date of this Agreement.
(iii) "ASSOCIATE" shall have the meaning ascribed to
such term in Rule 12b-2 promulgated under the Exchange Act, as in effect on the
date of this Agreement.
(iv) "CONTROL" shall mean the power to direct or
cause the direction of the management or policies of a Person whether through
ownership of securities, by contract, or otherwise.
(v) "PERSON" shall mean a natural person or any
legal or commercial entity, including, but not limited to, a corporation,
general partnership, joint venture, limited partnership, limited liability
company or partnership, trust, business association, group acting in concert, or
any person acting in a representative capacity, and shall include any successor
of such entity.
SECTION 6. GENERAL PROVISIONS.
(a) SPECIFIC ENFORCEMENT; OTHER REMEDIES.
(i) Premier acknowledges and agrees that OIS would
be irreparably damaged in the event any of the provisions of this Agreement were
not performed by Premier in accordance with their specific terms or were
otherwise breached. It is accordingly agreed that OIS shall be entitled to an
injunction or injunctions to prevent breaches of the provisions of this
Agreement and to enforce specifically the terms and provisions hereof and
thereof in any court of the United States or any state thereof having
jurisdiction, in addition to any other remedy to which OIS may be entitled at
law or equity.
(ii) In the event any of the provisions of this
Agreement are not performed by OIS in accordance with their specific terms or
are otherwise breached, Premier shall be entitled to an injunction or
injunctions to prevent breaches of the provisions of this Agreement and to
enforce specifically the terms and provisions thereof or seek recovery of money
damages in any court of the
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United States or any state thereof having jurisdiction, but any such
nonperformance or breach shall not entitle Premier to terminate this Agreement.
(b) AMENDMENT AND MODIFICATION. This Agreement may be
amended, modified, and supplemented only by a subsequent writing signed by each
of OIS and Premier.
(c) SUCCESSORS AND ASSIGNS. This Agreement shall be binding
upon and inure to the benefit of and be enforceable by the successors and
assigns of the parties hereto.
(d) GOVERNING LAW. This Agreement shall in all respects be
governed by and construed in accordance with the laws of the State of
California.
(e) FIDUCIARY DUTY. Notwithstanding anything to the
contrary in this Agreement, no provision of this Agreement shall be construed to
prevent the exercise by any director of OIS (or the actions of OIS thereon) of
his or her fiduciary duties as contemplated to be exercised under Section 2(b)
of this Agreement.
(f) COUNTERPARTS. This Agreement may be executed in one or
more counterparts, each of which shall be deemed to constitute an original, but
all of which together shall constitute one and the same instrument.
(g) CAPTIONS. The captions contained in this Agreement are
for reference purposes only and are not part of this Agreement.
IN WITNESS WHEREOF, each of the parties has caused this Agreement to be
executed on its behalf by their respective officers thereunto duly authorized,
all as of the date first written above.
OPHTHALMIC IMAGING SYSTEMS
By: /s/ STEVEN R. VERDOONER
-----------------------
Steven R. Verdooner
Chief Executive Officer and Chairman
of the Board
PREMIER LASER SYSTEMS, INC.
By: /s/ COLETTE COZEAN
------------------------
Colette Cozean, Ph.D.
Chief Executive Officer, President
and Chairman of the Board
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