<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON NOVEMBER 13, 1998.
REGISTRATION NO. 333-
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
VISION TWENTY-ONE, INC.
(Exact name of registrant as specified in its charter)
FLORIDA 59-3384581
------- ----------
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
7360 BRYAN DAIRY ROAD
LARGO, FLORIDA 33777
(727) 595-4300
(Address, including zip code, and telephone number, including area code,
of registrant's principal executive offices)
VISION TWENTY-ONE, INC.
EMPLOYEE STOCK PURCHASE PLAN
(Full Title of Plan)
Theodore N. Gillette, O.D.
Chief Executive Officer and President
Vision Twenty-One, Inc.
7360 Bryan Dairy Road
Largo, Florida 33777
(727) 545-4300
(Name, Address and Telephone number of
Agent for Service)
Copies to:
Darrell C. Smith, Esquire
Shumaker, Loop & Kendrick, LLP
101 E. Kennedy Blvd., Suite 2800
Tampa, Florida 33602
(813) 229-7600
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
===================================================================================================================================
TITLE OF SECURITIES AMOUNT TO BE PROPOSED MAXIMUM OFFERING PROPOSED MAXIMUM AGGREGATE AMOUNT OF
TO BE REGISTERED REGISTERED PRICE PER SHARE OFFERING PRICE REGISTRATION FEE
- -----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Shares $.001 Par Value ... 200,000 shares $4.73(1) $946,000(1) $263.00
===================================================================================================================================
</TABLE>
- --------------------
(1) Inserted solely for the purpose of calculating the registration fee
pursuant to Rule 457(h). Pursuant to Rule 457(c), the fee is calculated on
the basis of the average of the high and low prices reported on the NASDAQ
National Market System for the common stock on November 10, 1998.
<PAGE> 2
PART I
INFORMATION REQUIRED IN THE PROSPECTUS
Note: The documents containing the information concerning the Vision
Twenty-One, Inc. Employee Stock Purchase Plan (the "Plan") required by Item 1
of Form S-8 under the Securities Act of 1933, as amended (the "Securities
Act"), and the statement of availability of the registrant information, and
other information required by Item 2 of Form S-8 will be sent or given to
participants as specified in Securities Act Rule 428. In accordance with Rule
428 and the requirements of Part I of Form S-8, such documents are not being
filed with the Securities and Exchange Commission either as part of this
registration statement on Form S-8 or as prospectuses or prospectus supplements
pursuant to Rule 424. The Company will maintain a file of such documents in
accordance with the provisions of Rule 428. Upon request, the Company shall
furnish to the Commission or its staff a copy or copies of all of the documents
included in such file.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
There are hereby incorporated by reference in this Prospectus the
following documents, all of which are previously filed by the Company with the
Commission:
1. The Company's Annual Report on Form 10-K for the fiscal year ended
December 31, 1997.
2. The Company's quarterly Report on Form 10-Q for the quarter ended
March 31, 1998.
3. The Company's quarterly Report on Form 10-Q for the quarter ended
June 30, 1998.
4. The Company's Form 8-K dated April 14, 1998 relating to the
Company's acquisition of EyeCare One Corp. ("EyeCare One") and
Vision Insurance Plan of America, Inc. ("VIPA"), and related Form
8-K/A dated June 5, 1998.
5. The Company's Form 8-K dated July 10, 1998 relating to the Company's
new credit facilities and the Company's announcement of its letter
of intent to acquire Vision World.
6. The Company's Form 8-K dated August 10, 1998 relating to the
Company's acquisition of Vision World, as amended on the related
Form 8-K/A dated October 13, 1998.
7. The Company's Form 8-K dated August 19, 1998 relating to the
Company's financial statements as restated to reflect the pooling of
interest acquisition of EyeCare One and VIPA.
8. The Company's Form 8-K dated November 12, 1998, related to the
financial statements of Eye Care One and VIPA and certain press
releases related to other matters.
9. The description of securities to be registered contained in the
Registration Statement filed with the Commission on the Company's
Form 8-A under the Exchange Act.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable. The class of securities to be offered under this
Registration Statement is registered under Section 13 of the Exchange Act.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
The Company's legal counsel, Shumaker, Loop & Kendrick of Tampa,
Florida, is giving the Company an opinion upon the legality of the issuance of
the shares of Common Stock being offered hereby.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Company's Articles of Incorporation (the "Articles") provide that a
director will not be personally liable to the Company or its stockholders for
monetary damages for breach of fiduciary duty as a director, except: (i) for
any breach of duty of loyalty; (ii) for acts or omissions not in good faith or
which involve intentional misconduct or knowing violations of laws;
II-2
<PAGE> 3
(iii) for liability under the Florida Business Corporation Act (relating to
certain unlawful dividends, stock repurchases or stock redemptions); or (iv)
for any transaction from which the director derived any improper personal
benefit. The Company's by-laws provide that the Company shall indemnify each
director and such of the Company's officers, employees and agents as the Board
of Directors shall determine from time to time to the fullest extent provided
by the Florida Business Corporation Act.
The Company has entered into indemnification agreements (the
"Indemnification Agreements") with all of its directors and certain of its
officers. Similar Indemnification Agreements may from time to time be entered
into with additional officers of the Company or certain other employees or
agents of the Company. At present, there is no material pending litigation nor
proceeding involving a director, officer, employee or agent of the Company
where indemnification is required or permitted, nor is the Company aware of any
threatened litigation or proceeding that may result in a claim for such
indemnification. The Company is also empowered under its Articles to purchase
and maintain insurance or furnish similar protection on behalf of any person
who it is required or permitted to indemnify and the Company has acquired such
insurance in connection with each individuals that the Company believes is
warranted.
Insofar as indemnification for liabilities under the Securities Act of
1933 may be permitted to directors, officers and controlling persons of the
Company pursuant to the foregoing provisions, or otherwise, the Company has
been advised that in the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the Securities Act and
is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than payment by the registrant of expense
incurred or paid by a director, officer or controlling person of the Company in
the successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Company will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
<TABLE>
<CAPTION>
EXHIBIT
NUMBER EXHIBIT DESCRIPTION
- ------- -------------------
<S> <C>
3.1 Amended and Restated Articles of Incorporation of Vision Twenty-One,
Inc. (previously filed on June 13, 1997 as Exhibit 3.1 in the Company's
Registration Statement on Form S-1, File No. 333-29213).*
3.2 By-Laws of Vision Twenty-One, Inc. (previously filed as Exhibit 3.2 to
the Company's Registration Statement on Form S-1, File No. 333-29213,
filed on June 13, 1997).*
4.1 Vision Twenty-One, Inc. Employee Stock Purchase Plan.
5.1 Opinion of Shumaker, Loop & Kendrick, LLP, as to the legality of the
securities being registered.
23.1 The consent of Shumaker, Loop & Kendrick, LLP to the use of their
opinion as an Exhibit to this Registration Statement is included in
their opinion filed herewith as Exhibit 5.1.
23.2 Consent of Ernst & Young, LLP, independent certified public accountants.
23.3 Consent of Ernst & Young, LLP, independent certified public accountants.
23.4 Consent of Divine, Scherzer & Brody, Ltd., independent certified public
accountants.
</TABLE>
------------------
* Document has been filed with the Commission and is incorporated by reference.
II-3
<PAGE> 4
ITEM 9. UNDERTAKINGS.
1. The Company hereby undertakes:
(a) To file, during any period in which offers of sales are being
made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of
the Securities Act of 1933.
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the registration statement (or
the most recent post-effective amendment thereto) which,
individually or in the aggregate, represents a fundamental
change in the formation set forth in the registration
statement;
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the
registration statement or any material change to such
information in the registration statement.
(b) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall
be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide
offering thereof.
(c) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain
unsold at the termination of the offering.
2. The Company hereby undertakes that, for purposes of determining any
liability under the Securities Act of 1933, each filing of the
Company's annual report pursuant to Section 13(a) or Section 15(d)
of the Exchange Act (and where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of
the Exchange Act) that is incorporated by reference in the
registration statement shall be deemed to be a new registration
statement relating to the securities offered herein, and the
offering of such securities at that time shall be deemed to be in
the initial bona fide offering thereof.
3. The undersigned Company hereby undertakes to deliver or cause to be
delivered with the Prospectus to each eligible employee to whom the
Prospectus is sent or given, a copy of the Company's Annual Report
to Stockholders for its last fiscal year, unless such individual
otherwise has received a copy of such Annual Report, in which case
the Company shall state in the Prospectus that it will promptly
furnish, without charge, a copy of such Annual Report on written
request of the individual. If the last fiscal year of the Company
has ended within 120 days prior to the use of the Prospectus, the
Annual Report of the Company for the preceding fiscal year may be so
delivered, but within such 120 day period the Annual Report for the
last fiscal year will be furnished to each such individual.
The Company also undertakes to deliver or cause to be delivered to all
employees participating in the Employee Stock Purchase Plan who do not
otherwise receive such material, copies of all reports to stockholders, proxy
statements and other communications distributed to its security holders
generally, such material to be sent or delivered no later than the time it is
sent to security holders.
II-4
<PAGE> 5
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Company
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing Form S-8 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Largo, State of Florida this 13th day of November,
1998.
VISION TWENTY-ONE, INC.
By: /s/ Theodore N. Gillette
----------------------------------
Theodore N. Gillette,
Chief Executive Officer
By: /s/ Richard T. Welch
----------------------------------
Richard T. Welch,
Chief Financial Officer
(Principal Financial Officer and
Principal Accounting Officer)
Each of the undersigned officers and directors of Vision Twenty-One,
Inc., hereby constitutes and appoints Theodore N. Gillette, Chief Executive of
the Company, and Richard T. Welch, Chief Financial Officer of the Company, or
either of them individually, his true and lawful attorney-in-fact and agent,
for him and in his name, place and stead, in any and all capacities, to sign
his name to any and all amendments to this Registration Statement on Form S-8,
including post-effective amendments and other related documents, and to cause
the same to be filed with the Securities and Exchange Commission, granting unto
said attorneys, or either of them individually, full power and authority to do
and perform any act and thing necessary and proper to be done in the premises,
as fully to all intents and purposes as the undersigned could do if personally
present, and the undersigned for himself hereby ratifies and confirms all that
said attorneys shall lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this S-8
Registration Statement has been signed by the following persons in the
capacities indicated on November 13th, 1998.
<TABLE>
<CAPTION>
Signature Title
--------- -----
<S> <C>
/s/ Theodore N. Gillette Chief Executive Officer and Director
- ------------------------------------
Theodore N. Gillette
/s/ Richard T. Welch Chief Financial Officer and Director
- ------------------------------------
Richard T. Welch
/s/ Richard L. Sanchez Chief Development Officer, Secretary
- ------------------------------------ and Director
Richard L. Sanchez
/s/ Richard L. Lindstrom Chief Medical Officer and Director
- ------------------------------------
Richard L. Lindstrom, M.D.
/s/ Peter J. Fontaine Director
- ------------------------------------
Peter J. Fontaine
/s/ Martin F. Stein Director
- ------------------------------------
Martin F. Stein
/s/ Bruce S. Maller Director
- ------------------------------------
Bruce S. Maller
/s/ Jeffrey I. Katz Director
- ------------------------------------
Jeffrey I. Katz, M.D.
</TABLE>
II-5
<PAGE> 6
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT
NUMBER EXHIBIT DESCRIPTION
- ------- -------------------
<C> <C>
3.1 Amended and Restated Articles of Incorporation of Vision Twenty-One,
Inc. (previously filed on June 13, 1997 as Exhibit 3.1 in the
Company's Registration Statement on Form S-1, File No. 333-29213).*
3.2 By-Laws of Vision Twenty-One, Inc. (previously filed as Exhibit 3.2
to the Company's Registration Statement on Form S-1, File No.
333-29213, filed on June 13, 1997).*
4.1 Vision Twenty-One, Inc. Employee Stock Purchase Plan.
5.1 Opinion of Shumaker, Loop & Kendrick, LLP, as to the legality of the
securities being registered.
23.1 The consent of Shumaker, Loop & Kendrick, LLP to the use of their
opinion as an Exhibit to this Registration Statement is included in
their opinion filed herewith as Exhibit 5.1.
23.2 Consent of Ernst & Young, LLP, independent certified public
accountants.
23.3 Consent of Ernst & Young, LLP, independent certified public
accountants.
23.4 Consent of Divine, Scherzer & Brody, Ltd., independent certified
public accountants.
</TABLE>
- ------------------
* Document has been previously filed with the Commission and is incorporated
herein by reference.
II-6
<PAGE> 1
EXHIBIT 4.1
VISION TWENTY-ONE, INC.
EMPLOYEE STOCK PURCHASE PLAN
1. PURPOSES
The Vision Twenty-One, Inc. Employee Stock Purchase Plan (the "Plan")
is intended to provide employees of Vision Twenty-One, Inc., a Florida
corporation (the "Company") and its Subsidiaries with an opportunity to
acquire shares of the Company's Common Stock at an advantageous price,
with savings accumulated through payroll deductions. It is the
intention of the Company that the Plan be an "employee stock purchase
plan" under Section 423 of the Code. The provisions of the Plan shall,
accordingly, be construed in a manner consistent with the requirements
of that section of the Code.
2. DEFINITIONS
A. "Agent" means the firm appointed by the Company's Board of Directors
to carry out the functions assigned to the Agent.
B. "Board of Directors" means the Company's Board of Directors.
C. "Closing Market Price" means the last sale price of the Common Stock
as reported on the NASDAQ/National Market System (or any other
exchange or quotation system, if applicable) on the date specified;
or if no sales occurred on such day, at the last sale price reported
for the Common Stock; but if there should be any material alteration
in the present system of reporting sales prices of such Common
Stock, or if such Common Stock should no longer be listed on the
NASDAQ/National Market System (or other exchange or quotation
system), or if the last sale price reported shall be on a date more
than 30 days from the date in question, the market value of the
Common Stock as of a particular date shall be determined in such a
method as shall be specified by the Plan's Agent.
D. "Code" means the Internal Revenue Code of 1986, as amended.
E. "Common Stock" means the Company's common stock, par value $.001 per
share, as traded on the NASDAQ market.
F. "Compensation" means cash compensation before any payroll deductions
for taxes or any other purpose, paid by the Company or a Subsidiary
to a Participant in respect of the service of such Participant to
the Company or a Subsidiary during an Offering Period. This amount
shall be deemed to include any amount that the Participant
<PAGE> 2
has elected to defer for federal income tax purposes under any
401(k) savings plan, cafeteria plan or deferred compensation plan
maintained by the Company or a Subsidiary. Compensation shall not
include any amount paid to the Participant that (i) is paid during
an Offering Period under any employee pension benefit plan (as
defined in Section 3(2) of the Employee Retirement Income Security
Act of 1974, as amended ("ERISA"); (ii) is calculated as an excess,
incentive compensation or bonus amount; and (iii) except as
otherwise provided in the preceding sentence, is not included in the
income of the Participant for federal income tax purposes.
G. "Offering Date" means November 7, 1998, and the first day of any
calendar quarter thereafter.
H. "Offering Period" means the period from November 7, 1998 through
December 31, 1998, and thereafter, the three-month period commencing
on any Offering Date after the first Offering Date and ending on the
Purchase Date that next follows an Offering Date.
I. "Option" means the right of a Participant to acquire Common Stock
pursuant to Plan provisions.
J. "Participant" means an eligible employee who has authorized payroll
deductions for the purchase of Common Stock under the Plan and has
an account maintained by the Agent, containing shares of Common
Stock and/or Proceeds.
K. "Proceeds" means the total amount of cash accumulated for the
benefit of a Participant during a single Offering Period, comprised
of the aggregate of the payroll deductions taken from the
Participant's Compensation during such period together with earnings
thereon and dividends paid on shares of Common Stock beneficially
owned by the Participant.
L. "Purchase Date" means the first trading day of the third calendar
month following the immediately preceding Offering Date.
M. "Subsidiary" means a corporation that is a subsidiary of the Company
within the meaning thereof as stated in Code Section 424(f). Each
Subsidiary shall participate in the Plan unless designated by the
Board of Directors not to participate.
N. "Trading Day" means any day that the principal stock exchange or
other national market upon which the Common Stock is traded is open
for business.
2
<PAGE> 3
O. "Year of Service" means a period of twelve consecutive months of
employment with the Company or any Subsidiary.
Wherever appropriate in this Plan the singular shall include the
plural; the masculine, the feminine; and vice versa.
3. ELIGIBILITY
All employees of the Company who have been employed for at least sixty
(60) days as of any Offering Date shall be eligible to participate in
the Plan, provided that no employee shall be eligible if such employee:
A. owns immediately after any Option is granted, stock possessing five
percent (5%) or more of the total combined voting power or value of
all classes of Company stock, applying the rules of Code Section
424(d) in determining stock ownership,
B. is a member of the Board of Directors, or an executive officer of
the Company whose compensation must be reported in the Company's
proxy statements, or
C. is an employee whose customary employment is twenty hours or less
per week, or whose customary employment is for not more than five
months in any calendar year.
In addition, all employees of each Subsidiary shall be eligible to
participate in the Plan to the extent they satisfy the requirements set
forth in the preceding paragraph.
4. EMPLOYEE PARTICIPATION AND PAYROLL DEDUCTIONS
A. An eligible employee shall become a Participant in the Plan by
completing an Enrollment Form authorizing for the payroll deduction,
together with instructions to use the deductions to purchase shares
of Common Stock under the Plan. The Participant shall choose a
deduction in a whole percentage from 1% to 10%. As of each pay day
during an Offering Period the Company will deduct the specified
amount from the Compensation payable to each Participant and
transmit these aggregate deductions to the Agent, with sufficient
information to allow the agent to account for each Participant's
deductions and maintain each Participant's Proceeds account. The
Agent will cause each Participant's Proceeds to be credited to his
or her account under the Plan and invested in a money market fund
approved by the Company. The Agent will perform the record keeping
function under the Plan, assuring that each Participant's Proceeds
are
3
<PAGE> 4
credited with appropriate earnings. A Participant may not make any
separate cash payment into such account.
B. On each Offering Date, each Participant shall be granted the right
to purchase on the next Purchase Date such number of shares of
Common Stock as may be purchased by the Participant's Proceeds. No
Participant, however, may be granted the right to purchase shares of
Common Stock under all such plans of the Company where the accrual
is at a rate that exceeds $25,000 of the Common Stock's fair market
value, determined at the time the option is granted, for any one
calendar year in which an option is outstanding for any part of the
year.
C. A Participant may not increase or reduce, except to 0%, the amount
of payroll deductions during an Offering Period. A Participant shall
be deemed to have elected to purchase all shares able to be
purchased with the Proceeds on the applicable Purchase Date.
D. A Participant shall be deemed to have continued the most recent
election to participate in the Plan for the next Offering Period
unless the Participant notifies the Company or its agent on or
before the twentieth (20th) day of the month preceding the beginning
of the next Offering Period that he or she elects not to participate
in the Plan for the next Offering Period. Such notice may not be
revoked. Similarly, a Participant may elect to increase or decrease
the amount of payroll deduction on or before the twentieth (20th)
day of the month preceding the beginning of the next Offering
Period, such increase or decrease to be effective at the beginning
of the next Offering Period.
5. OPTION PRICE
The price to Participants for each share to be purchased on a Purchase
Date shall be the lesser of
A. eighty-five percent (85%) of the Closing Market Price on the
Offering Date, or
B. eighty-five percent (85%) of the Closing Market Price on the
Purchase Date.
6. METHOD OF PURCHASE
A. On each Purchase Date the Agent shall cause all Participants'
Proceeds, together with applicable Company contributions during the
preceding Offering Period, to be applied to the purchase of Common
Stock from the Company.
4
<PAGE> 5
B. As of the Purchase Date, the account of each Participant shall be
credited with a number of shares of Common Stock that were able to
be purchased with that Participant's Proceeds.
7. WITHDRAWALS
Prior to any Purchase Date, a Participant may give written notice to
the Company or its agent of an intent to withdraw the entire cash
balance and earnings accumulated during the Offering Period preceding
the said Purchase Date. The written notice shall effectuate a
withdrawal only if the Agent has not purchased shares for the account
of the notifying Participant. Such withdrawal will terminate the
Participant's right to exercise any Options for that Offering Period. A
Participant who withdraws shall not participate again in the Plan
unless and until a new Enrollment/Change Form is filed.
8. TERMINATION OF EMPLOYMENT
As soon as administratively practicable after the termination of a
Participant's employment with the Company for any reason other than
death, the Participant's Proceeds accumulated during the Offering
Period in which his employment terminated will be refunded, and any
shares of Common Stock held by the Agent will be distributed in kind.
As an alternative to the latter, the terminated Participant may request
that the Agent, at the Participant's expense, sell the Common Stock in
the account and forward the net proceeds to the Participant.
9. RIGHTS AS A SHAREHOLDER; DIVIDENDS; HOLDING AND ISSUANCE OF SHARES
A. A Participant shall have no rights as a shareholder with respect to
any shares of Common Stock offered hereunder until completion of
payment therefor. Shares purchased pursuant to the Plan initially
will be registered in the name of the Agent as custodian for the
account of the Participant entitled thereto. In regard to shares
paid for and in a Participant's account, the Participant shall have
all rights accruing to an owner of record of such shares, including
voting rights and the right to receive dividends.
B. The Agent shall receive the dividends payable on the shares in its
custody and shall credit to the Proceeds account of each Participant
as beneficial owner of a certain number of shares the amount of
dividends attributable thereto. In the event that the Participant
has not authorized payroll deductions during the Offering Period in
which the Agent receives the Participant's dividends, unless
requested otherwise by the Participant on notice from the Agent, the
Agent shall re-establish a Proceeds account to contain these
dividends and earnings thereon. In the event that the Participant's
shares have been
5
<PAGE> 6
distributed when dividends are received, the Agent shall return said
dividends to the Common Stock's transfer agent for reissuance to the
distributee of the shares.
C. Until such time as the Plan has been approved by the Company's
shareholders, the stock certificates representing all of the shares
purchased on behalf of Participants under this Plan shall be
retained by the Agent, and Participants may not withdraw or sell
such shares.
D. After the Plan has been approved by the Company's shareholders, the
stock certificate or certificates representing the shares purchased
on behalf of a Participant on a Purchase Date shall be retained by
the Agent until such time as the Participant may request the Agent
in writing to distribute such shares to the Participant. The Company
and the Agent may establish such rules and procedures as they, in
their discretion, determine to be necessary or desirable with
respect to distributions of shares purchased under this Plan,
including any rules imposing limits on such distributions or
restricting the timing or frequency of such distributions they may
determine to be appropriate.
10. NONTRANSFERABLITY
Neither payroll deductions credited to the account of a Participant nor
any Options to purchase shares of common Stock under the Plan may be
assigned, transferred, or alienated, and Options must be exercised only
by the Participant during his or her lifetime.
11. BENEFICIARY DESIGNATION AND RIGHTS
A Participant may file with the Company's Manager of Benefits and
Compensation a written designation of beneficiary, or a revision
thereof. In the absence of such designation, or if the named
beneficiary predeceased the Participant, the Participant's estate shall
be deemed to be the beneficiary. In the event of the Participant's
death, the Agent shall apply the Proceeds to the purchase of shares on
the Purchase Date, and deliver all the Common Stock held for the
deceased Participant to the beneficiary, together with any remaining
Proceeds, subject to the Agent's receipt of Participant's death
certificate and satisfactory evidence of the beneficiary's identity and
acceptance of the Common Stock and Proceeds. The beneficiary shall have
no rights under the Plan during the Participant's lifetime.
6
<PAGE> 7
12. SHARES AUTHORIZED; CHANGE IN CORPORATE STRUCTURE AND CAPITALIZATION
A. Subject to adjustment upon changes in the capitalization of the
Company, the maximum number of shares of Common Stock which shall be
made available for purchase under the Plan is 200,000 shares. The
shares of Common Stock purchased under the Plan may, at the election
of the Company, be authorized but unissued treasury shares held by
the Company, or shares of Common Stock purchased on the open market
by the Agent.
B. In the event of any change in the number of outstanding shares of
Common Stock by reason of a recapitalization, merger, consolidation,
reorganization, separation, liquidation, stock split, stock
dividend, combination of shares, or any other change in the
corporate structure or shares of stock of the Company, the Board of
Directors will make an appropriate adjustment, in accordance with
applicable provisions of the Code and law, in the number and kind of
shares which may be offered under the Plan, both in the aggregate
and as to each Participant, the number of shares then subject to
offerings theretofore made, and the price of shares offered under
the Plan.
C. If the Company shall not be the surviving corporation in any merger
or consolidation, or survives only as a subsidiary of another
entity, or if the Company is to be dissolved or liquidated, and
unless a surviving corporation assumes or substitutes new options
within the meaning of Section 424(a) of the Code, for all Options
then outstanding under the Plan,
i. the Purchase Date for all Options then outstanding shall be
accelerated to a date fixed by the Board of Directors prior to
the effective date of such merger or consolidation or such
dissolution or liquidation and shall be deemed to be exercised,
and
ii. upon such effective date any unexercised Options shall expire.
13. SECURITIES LAWS
The Plan is intended to comply with Rule 16b-3 of the Securities Act of
1934, and shall be interpreted therewith. The Company shall not be
obligated to issue any Common Stock pursuant to the Plan at any time
when the shares have not been registered under the Securities Act of
1933, as amended, and such other state and federal laws, rules or
regulations as the Company or the Board of Directors deems applicable
and, in the opinion of legal counsel for the Company, there is no
exemption from the registration requirements of such laws, rules or
regulations available for the
7
<PAGE> 8
issuance and sale of such shares. Further, all Common Stock acquired
pursuant to the Plan shall be subject to, and may be sold only in a
manner consistent with the Company's Confidentiality Policy and other
policies concerning compliance with securities laws and insider
trading, as the same may be amended from time to time.
14. ADMINISTRATION
A. The Plan shall be administered by the Board of Directors. The
interpretation and construction of any provision of the Plan, and
the adoption of rules for administering the Plan, shall be made by
the Board of Directors. Determinations made by the Board of
Directors with respect to any matter or provision contained in the
Plan shall be final, conclusive and binding upon the Company and all
Participants, their beneficiaries and legal representatives. Any
rule adopted by the Board of Directors shall remain in full force
and effect unless and until amended or repealed by the Board of
Directors.
B. The Board of Directors shall have the right to appoint the Agent and
any other entity or person, including Company employees, and to
delegate to them certain functions or services to be performed in
connection with Plan administration, and to name successors.
C. The Participant or beneficiary, as the case may be, shall bear all
costs and expenses associated with requests for the issuance of
stock certificates, the sale of Common Stock, and a Participant's
withdrawal from the Plan.
D. The Agent will mail to each Participant's home address a quarterly
statement showing the number of shares of Common Stock held
beneficially for the Participant, the amount and derivation of cash
in the Participant's Proceeds account, and any purchases of shares
in the Offering Period that closed during the calendar quarter
reflected in the statement.
E. If at any time the number of shares as to which Options have been
granted shall exceed the number of shares authorized for purchase
under the Plan on a certain Purchase Date, the number of shares
which may be purchased by each Participant shall be reduced
proportionately. Payroll deductions not able to be used shall remain
in the Participant's Proceeds account.
15. AMENDMENT AND TERMINATION
The Board of Directors may at any time terminate or amend the Plan,
provided that no amendment may be made without approval of the
8
<PAGE> 9
shareholders of the Company if such amendment would increase the number
of shares which may be available under the Plan, except by operation of
Section 12 of the Plan, or materially modify the requirements as to
eligibility for participation in the Plan.
16. NONGUARANTEE OF EMPLOYMENT
Neither eligibility to participate in, actual participation in, nor any
provision of the Plan shall be construed as giving any eligible
employee or Participant any employment right with the Company or a
Subsidiary.
17. AGENT FOR SERVICE OF PROCESS
Legal process may be served upon the Manager of Benefits and
Compensation, Vision Twenty-One, Inc., 7360 Bryan Dairy Rd., Suite 200,
Largo, FL 33777.
18. SHAREHOLDER APPROVAL
The effectiveness of this Plan is subject to its approval by the
Company's shareholders at the next Annual Meeting, or within a 12-month
period after the date the Plan is adopted by the Board of Directors. In
the event shareholder approval of this Plan is not obtained within this
period, the Plan shall terminate, all shares purchased under the Plan
shall be returned to the Company, and the Agent shall refund to each
Participant any Proceeds accumulated for the Participant and the
current value of any shares of Common Stock then held by the Agent on
the Participant's behalf.
9
<PAGE> 1
EXHIBIT 5.1
November 13, 1998
Vision Twenty-One, Inc.
7360 Bryan Dairy Road
Largo, Florida 33777
Re: Registration Statement on Form S-8 for the Vision Twenty-One, Inc.
Employee Stock Purchase Plan
Sir or Madam:
We have acted as counsel to Vision Twenty-One, Inc. (the "Company") in
connection with the preparation and filing of its Registration Statement on
Form S-8 with the Securities and Exchange Commission pursuant to the
requirements of the Securities Act of 1933, as amended, for the registration of
an aggregate of 200,000 shares of the common stock of the Company, par value
$.001 per share (the "Shares"), to be offered to eligible employees pursuant to
the terms of the Vision Twenty-One, Inc. Employee Stock Purchase Plan (the
"Plan").
In connection with the following opinion, we have examined and have
relied upon such documents, records, certificates, statements and instruments
as we have deemed necessary and appropriate to render the opinion herein set
forth.
Based upon the foregoing, it is our opinion that the Shares, when issued
and sold pursuant to elections made by eligible employees participating in the
Plan in a manner consistent with the terms of the Plan, will be legally issued,
fully paid and nonassessable.
The undersigned hereby consents to the filing this opinion as Exhibit 5.1
to the Registration Statement on Form S-8 and to the use of its name in the
Registration Statement.
Very truly yours,
/s/ SHUMAKER, LOOP & KENDRICK, LLP
-------------------------------------
SHUMAKER, LOOP & KENDRICK, LLP
<PAGE> 1
Exhibit 23.2
[ERNST & YOUNG LLP LETTERHEAD]
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
We consent to the incorporation by reference in the Registration Statement
(Form S-8) pertaining to the Vision Twenty-One, Inc. Employee Stock Purchase
Plan of our reports as follows at December 31, 1996 and 1997 and for the three
years in the period ended December 31, 1997, which are included in the Vision
Twenty-One, Inc. Form 8-K dated November 12, 1998, filed with the Securities and
Exchange Commission.
EyeCare One Corp. February 4, 1998
Vision Insurance Plan of America, Inc. March 3, 1998
/s/ Ernst & Young LLP
Milwaukee, Wisconsin
November 13, 1998
<PAGE> 1
Exhibit 23.3
[ERNST & YOUNG LLP LETTERHEAD]
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
We consent to the incorporation by reference in the Registration Statement (Form
S-8) pertaining to the Vision Twenty-One, Inc. Employee Stock Purchase Plan of
our report dated March 11, 1998 (except Note 16, as to which the date is March
31, 1998), with respect to the consolidated financial statements of Vision
Twenty-One, Inc. and Subsidiaries at December 31, 1996 and 1997 and for the
three years in the period ended December 31, 1997 included in the Form 8-K dated
August 19, 1998, filed with the Securities and Exchange Commission.
/s/ Ernst & Young LLP
Tampa, Florida
November 13, 1998
<PAGE> 1
EXHIBIT 23.4
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
We have issued our report dated August 21, 1998 accompanying the financial
statements of VWSC Corporation (formerly Vision World, Inc.) included in the
Form 8-K/A (Amendment No. 1) of Vision Twenty-One, Inc. for each of the three
years ended January 3, 1998, which are incorporated by reference into this
Vision Twenty-One Registration Statement on Form S-8 as filed on November 13. We
consent to the incorporation by reference in the above mentioned Registration
Statement of the aforementioned report.
/s/ Divine, Scherzer & Brody, Ltd.
- ---------------------------------------------
Divine, Scherzer & Brody, Ltd.
Minneapolis, Minnesota
November 12, 1998
