SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
SCHEDULE 13D
(Rule 13d-101)
Information to Be Included in Statements Filed Pursuant to Rule 13d-1(a)
and Amendments Thereto Filed Pursuant to Rule 13d-2(a)
OptiCare Health Systems, Inc.
-----------------------------
(Name of Issuer)
Common Stock, par value $.001 per share
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(Title of Class of Securities)
68386P 105
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(CUSIP Number)
Jeffery H. Boyd
Executive Vice President, General Counsel and Secretary
Oxford Health Plans, Inc.
800 Connecticut Avenue
Norwalk, CT 06854
-----------------
(Name, Address and Telephone Number of Person Authorized to Receive Notices and
Communications)
August 13, 1999
---------------
(Date of Event Which Requires Filing of This Statement)
If the filing person has previously filed a statement on Schedule 13G to report
the acquisition that is the subject of this Schedule 13D, and is filing this
schedule because of Rule 13d-1(e), Rule 13d-1(f) or Rule 13d-1(g), check the
following box.[ ]
*The remainder of this cover page shall be filled out for a reporting person's
initial filing on this form with respect to the subject class of securities, and
for any subsequent amendment containing information which would alter
disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be deemed
to be "filed" for the purpose of Section 18 of the Securities Exchange Act of
1934 or otherwise subject to the liabilities of that section of the Act but
shall be subject to all other provisions of the Act (however, see the Notes).
(Continued on following page(s))
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CUSIP No. 68386P 105
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1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Oxford Health Plans, Inc.
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2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) [ ]
(b) [X]
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3 SEC USE ONLY
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4 SOURCE OF FUNDS*
OO
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5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) OR 2(e) [ ]
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6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
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NUMBER OF 7 SOLE VOTING POWER
SHARES 775,996
BENEFICIALLY --------------------------------------------------------------
OWNED BY 8 SHARED VOTING POWER
EACH
REPORTING --------------------------------------------------------------
PERSON 9 SOLE DISPOSITIVE POWER
WITH 775,996
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10 SHARED DISPOSITIVE POWER
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11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
775,996
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12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES*
[ ]
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13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
8.6%
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14 TYPE OF REPORTING PERSON*
CO, IC
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*SEE INSTRUCTIONS BEFORE FILLING OUT!
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This Statement on Schedule 13D relates to shares of common stock, par
value $.001 per share (the "Shares"), of OptiCare Health Systems, Inc. (the
"Issuer"), a Delaware corporation, formerly known as Saratoga Resources, Inc.
This Statement is being filed by Oxford Health Plans, Inc. ("Oxford" or the
"Reporting Person") to report acquisitions of Shares as a result of which Oxford
may be deemed to be the beneficial owner of more than 5% of the outstanding
Shares. Information contained in this Statement on Schedule 13D is as of the
date hereof, unless otherwise expressly provided herein.
Item 1. Security and Issuer.
- ----------------------------
NAME OF THE ISSUER: OptiCare Health Systems, Inc., a Delaware
corporation formerly known as Saratoga Resources, Inc.
ADDRESS OF PRINCIPAL EXECUTIVE OFFICES OF THE ISSUER: 87 Grandview
Avenue, Waterbury, CT 06708.
TITLE OF CLASS OF EQUITY SECURITIES TO WHICH THIS STATEMENT RELATES:
Common Stock, $.001 par value.
Item 2. Identity and Background.
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Oxford
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This statement is being filed on behalf of Oxford Health Plans, Inc., a
Delaware corporation. Oxford is a health care company currently providing health
benefit plans primarily in New York, New Jersey and Connecticut. Oxford's
principal business and office address is 800 Connecticut Avenue, Norwalk, CT
06854.
During the last five years, Oxford has not (i) been convicted in a
criminal proceeding (excluding traffic violations or similar misdemeanors) or
(ii) been a party to a civil proceeding of a judicial or administrative body of
competent jurisdiction and as a result of such proceeding was or is subject to a
judgment, decree or final order enjoining future violations of, or prohibiting
or mandating activities subject to, federal or state securities laws or finding
any violation with respect to such laws.
The name, business address, principal occupation or employment
(including the name, principal business and address of any corporation or
organization, other than Oxford, in which such employment is conducted) and
citizenship of each director and executive officer of Oxford is listed on
Schedule A attached hereto, which Schedule is incorporated herein by reference.
To the best of Oxford's knowledge, none of its respective directors and
executive officers listed on Schedule A has, during the last five years, (i)
been convicted in a criminal proceeding (excluding traffic violations or similar
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misdemeanors), or (ii) been a party to a civil proceeding of a judicial or
administrative body of competent jurisdiction and as a result of such proceeding
was or is subject to a judgment, decree or final order enjoining future
violations of, or prohibiting activities subject to, federal or state securities
laws or finding any violation of such laws.
TPG
- ---
To the best of Oxford's knowledge, TPG Partners II, L.P. ("TPG"), TPG
Parallel II, L.P. ("TPG Parallel"), and TPG Investors II, L.P. ("TPG Investors")
own, in the aggregate, approximately 210,885.2 shares, or 80%, of Oxford Series
D Preferred Stock and approximately 92,719.4 shares, or 80%, of Oxford Series E
Preferred Stock; and TPG, TPG Parallel and TPG Investors own certain warrants
providing them the right to purchase certain shares of Oxford common stock.
To the best of Oxford's knowledge, TPG is a Delaware limited
partnership engaged in making investments in securities of public and private
corporations; TPG Parallel is a Delaware limited partnership engaged in making
investments in entities in which TPG invests; and TPG Investors is a Texas
limited partnership also engaged in making investments in entities in which TPG
invests.
To the best of Oxford's knowledge, the General Partner of each of TPG,
TPG Parallel and TPG Investors is TPG GenPar II, L.P., a Delaware limited
partnership ("TPG GenPar"), whose principal executive offices are located at 201
Main Street, Suite 2420, Fort Worth, Texas 76102, and whose principal business
is to serve as the General Partner of TPG, TPG Parallel, TPG Investors and other
related entities.
To the best of Oxford's knowledge, the General Partner of TPG GenPar is
TPG Advisors II, Inc., a Delaware corporation ("TPG Advisors"), whose principal
executive offices are located at 201 Main Street, Suite 2420, Fort Worth, Texas
76102, and whose principal business is to serve as the General Partner of TPG
GenPar. To the best of Oxford's knowledge, no other persons control TPG, TPG
Parallel, TPG Investors, TPG GenPar or TPG Advisors. To the best of Oxford's
knowledge, the name, business address, principal occupation or employment
(including the name, principal business and address of any corporation or
organization, other than TPG Advisors, in which such employment is conducted)
and citizenship of each director and executive officer of TPG Advisors is listed
on Schedule B attached hereto, which Schedule is incorporated herein by
reference.
As a result of the Series D Preferred Stock and Series E Preferred
Stock owned by TPG, TPG Parallel and TPG Investors and the warrants owned by
TPG, TPG Parallel and TPG Investors (as described above), and as a result of the
relationship between TPG, TPG Parallel, TPG Investors, TPG GenPar and TPG
Advisors, TPG, TPG Parallel, TPG Investors, TPG GenPar and TPG Advisors may be
deemed to control Oxford.
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To the best of Oxford's knowledge, none of TPG, TPG Parallel, TPG
Investors, TPG GenPar and TPG Advisors, and none of the directors and executive
officers of TPG Advisors listed on Schedule B, has, during the last five years,
(i) been convicted in a criminal proceeding (excluding traffic violations or
similar misdemeanors), or (ii) been a party to a civil proceeding of a judicial
or administrative body of competent jurisdiction and as a result of such
proceeding was or is subject to a judgment, decree or final order enjoining
future violations of, or prohibiting activities subject to, federal or state
securities laws or finding any violation of such laws.
Fred Nazem, Nazem LLC and Nazem Partners
- ----------------------------------------
Pursuant to General Instruction C, Special Instructions for Complying
with Schedule 13D, this Statement also describes Shares that may be deemed to be
beneficially owned by Fred Nazem ("Nazem"), a member of the Board of Directors
of Oxford, Fred Nazem LLC ("Nazem LLC"), a limited liability company of which
Nazem is the managing member, and Nazem OptiCare Partners, LP ("Nazem
Partners"), a limited partnership of which Nazem LLC is the general partner.
Oxford disclaims beneficial ownership of the Shares that may be deemed to be
beneficially owned by Nazem, Nazem LLC and Nazem Partners.
Item 3. Source and Amount of Funds or Other Consideration.
- ----------------------------------------------------------
This Statement relates to 438,482 Shares held by Oxford and 337,514
Shares issuable upon the exercise of currently exercisable Warrants (as defined
below) held by Oxford. The Shares and the Warrants were received by Oxford in
connection with the merger (the "OptiCare Merger") of OptiCare Shellco Merger
Corporation, a wholly-owned subsidiary of the Issuer, with and into OptiCare Eye
Health Centers, Inc. ("OptiCare"), pursuant to an Agreement and Plan of Merger,
dated as of April 12, 1999, among the Issuer, OptiCare, OptiCare Shellco Merger
Corporation, PrimeVision Health Inc. and PrimeVision Shellco Merger Corporation
("the Merger Agreement"). For further information regarding the Merger
Agreement, see the Registration Statement on Form S-4 (Registration No.
333-78501) filed by the Issuer with the Securities and Exchange Commission on
May 14, 1999, as amended by amendments filed with the Commission on Form S-4/A
on June 24, 1999, July 16, 1999 and July 29, 1999.
The 438,482 Shares held by Oxford were issued to Oxford in exchange for
37,361 shares of Class A Preferred Stock of OptiCare that Oxford owned prior to
the OptiCare Merger. In the OptiCare Merger, each outstanding share of Class A
Preferred Stock of OptiCare was converted into the right to receive
approximately 11.7364 Shares.
The 337,514 Shares issuable upon exercise of the Warrants were also
received by Oxford in connection with the OptiCare Merger. Prior to the OptiCare
Merger, Oxford held warrants to purchase 28,758 shares of Class B Preferred
Stock of OptiCare. Such warrants were issued pursuant to a Warrant Agreement,
dated as of October 15, 1997, among OptiCare, Oxford, Nazem, Anthem Health
Plans, Inc. ("Anthem"), Richard Racine ("Racine") and Philip Barak ("Barak"), as
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amended by an Amendment to Warrant Agreement among OptiCare, Oxford, Nazem,
Anthem, Racine and Barak (as amended, the "Warrant Agreement"). Pursuant to the
OptiCare Merger, each outstanding warrant issued under the Warrant Agreement was
exchanged automatically into a warrant (a "Warrant") to purchase approximately
11.7364 Shares. The Warrant Agreement is attached hereto as Exhibit 1 and is
incorporated herein by reference. The Non-Transferable Warrant to Purchase
(28,758 shares of ) Class B Convertible Preferred Stock of OptiCare Eye Health
Centers, Inc. issued to Oxford under the Warrant Agreement is attached hereto as
Exhibit 2 and is incorporated herein by reference. The Amendment to Warrant
Agreement is attached hereto as Exhibit 3 and is incorporated herein by
reference.
To the best of Oxford's knowledge, in the OptiCare Merger, (i) Nazem
Partners received 275,618 Shares in exchange for 23,484 shares of Class A
Preferred Stock of OptiCare that Nazem Partners owned prior to the OptiCare
Merger; and (ii) Nazem received Warrants to purchase 198,627 Shares in exchange
for warrants to purchase 16,924 shares of Class B Preferred Stock of OptiCare
that Nazem held before the OptiCare Merger.
Item 4. Purpose of Transaction.
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The Shares and the Warrants held by Oxford have been acquired for
investment purposes. Oxford expects to evaluate on an ongoing basis the Issuer's
financial condition, business operations and prospects, the status of any
business combination involving the Issuer, the market price of the Shares,
conditions in the securities markets generally, general economic and industry
conditions and other factors. Oxford may at any time and from time to time
acquire additional Shares or sell Shares. Except to the extent set forth above,
Oxford has no plans to effect any of the transactions required to be described
in Item 4 of Schedule 13D.
To the best of Oxford's knowledge, the Shares held by Nazem Partners
and the Warrants held by Nazem have been acquired for investment purposes. To
the best of Oxford's knowledge, Nazem Partners and Nazem have no plans to effect
any of the transactions required to be described in Item 4 of Schedule 13D.
Item 5. Interest in Securities of the Issuer.
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(a) Oxford may be considered the beneficial owner of (i) 438,482
Shares which are owned by Oxford, and (ii) 337,514 Shares
issuable upon the exercise of the Warrants held by Oxford.
Such Shares represent, in the aggregate, approximately 8.6% of
the Shares.
Nazem Partners may be considered the beneficial owner of
275,618 Shares which are owned by Nazem Partners. Such Shares
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represent approximately 3.0% of the Shares. Oxford disclaims
beneficial ownership of the Shares held by Nazem Partners.
Nazem LLC, as the general partner of Nazem Partners, may be
considered the beneficial owner of 275,618 Shares which are
owned by Nazem Partners. Such Shares represent approximately
3.0% of the Shares.
Nazem may be considered the beneficial owner of (i) 198,627
Shares issuable upon the exercise of the Warrants held by
Nazem; and (ii) because Nazem is the managing member of Nazem
LLC (which is the general partner of Nazem Partners), 275,618
Shares owned by Nazem Partners. Such Shares represent, in the
aggregate, approximately 5.3% of the Shares. Oxford disclaims
beneficial ownership of the Shares issuable upon exercise of
the Warrants held by Nazem.
The above calculations are based on outstanding share
information derived from the pro forma projection in the
Issuer's Registration Statement on Form S-4 (Registration No.
333-78501) projecting the number of shares which would be
outstanding after the consummation of the transactions
contemplated by the Merger Agreement. The Issuer has not filed
any periodic reports since the consummation of the
transactions contemplated by the Merger Agreement.
(b) Oxford has the sole power to vote and the sole power to
dispose of the 438,482 Shares that it holds. Oxford currently
has no right to vote or dispose of the 337,514 Shares issuable
upon exercise of its Warrants. Oxford will not acquire the
right to vote or dispose of the Shares issuable upon exercise
of its Warrants until such time as it exercises its Warrants.
Oxford has the sole power to dispose of its Warrants and, upon
exercise of its Warrants, will have the sole power to vote and
the sole power to dispose of the 337,514 Shares issuable upon
exercise of its Warrants.
To the best of Oxford's knowledge, (i) Nazem Partners has the
sole power to vote and the sole power to dispose of the
275,618 Shares that it holds; and (ii) Nazem has the sole
power to dispose of the Warrants held by him, and will acquire
the sole power to vote and the sole power to dispose of the
198,627 Shares issuable upon exercise of the Warrants held by
him. Nazem LLC, as general partner of Nazem Partners, may be
deemed to have the power to vote and dispose of the 275,618
Shares held by Nazem Partners. Nazem, as the managing member
of Nazem LLC (which is the general partner of Nazem Partners),
may be deemed to have the power to vote and dispose of the
275,618 Shares held by Nazem Partners.
(c) Prior to the OptiCare Merger, Oxford held 37,361 shares of
Class A Preferred Stock of OptiCare, and warrants to purchase
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28,758 shares of Class B Preferred Stock of OptiCare. See Item
3 above for information regarding the OptiCare Merger. There
were no other purchases or sales of Shares by Oxford in the
past 60 days.
To the best of Oxford's knowledge, prior to the OptiCare
Merger, (i) Nazem Partners held 23,484 shares of Class A
Preferred Stock of OptiCare; and (ii) Nazem held warrants to
purchase 16,924 shares of Class B Preferred Stock of OptiCare.
See Item 3 above for information regarding the OptiCare
Merger. To the best of Oxford's knowledge, there were no other
purchases or sales of Shares by Nazem, Nazem LLC or Nazem
Partners in the past 60 days.
(d) No other person is known by Oxford to have the right to
receive or the power to direct the receipt of dividends from,
or the proceeds from the sale of, any Shares beneficially
owned by Oxford.
Other than Nazem, Nazem LLC and Nazem Partners, no other
person is known by Oxford to have the right to receive or the
power to direct the receipt of dividends from, or the proceeds
from the sale of, any Shares beneficially owned by Nazem,
Nazem LLC or Nazem Partners.
(e) Not applicable.
Item 6. Contracts, Arrangements, Understandings or Relationships With Respect
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to Securities of the Issuer.
- ---------------------------
As noted in Item 3 above, prior to the OptiCare Merger, Oxford held
28,758 shares of Class B Preferred Stock of OptiCare issuable upon exercise of
warrants issued pursuant to the Warrant Agreement. In connection with the
OptiCare Merger, each outstanding warrant issued under the Warrant Agreement was
exchanged automatically into a warrant to purchase approximately 11.7364 Shares.
As a result, Oxford now holds 337,514 Shares issuable upon exercise of Warrants
under the Warrant Agreement.
As noted in Item 3 above, prior to the OptiCare Merger, to the best of
Oxford's knowledge, Nazem held 16,924 shares of Class B Preferred Stock of
OptiCare issuable upon exercise of warrants issued pursuant to the Warrant
Agreement. In connection with the OptiCare Merger, each outstanding warrant
issued under the Warrant Agreement was exchanged automatically into a warrant to
purchase approximately 11.7364 Shares. As a result, to the best of Oxford's
knowledge, Nazem now holds 198,627 Shares issuable upon exercise of Warrants
under the Warrant Agreement.
In connection with the OptiCare Merger, Oxford entered into a Lock-up
Agreement with the Issuer in which Oxford agreed not to offer, sell, loan,
pledge, contract to sell, grant any rights to purchase, or otherwise dispose of,
its Shares (including Shares issuable upon exercise of its Warrants) and its
Warrants for a period of 180 days following the closing of the OptiCare Merger.
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The Oxford Lock-up Agreement is attached hereto as Exhibit 4 and incorporated
herein by reference.
To the best of Oxford's knowledge, in connection with the OptiCare
Merger, Nazem Partners and Nazem entered into similar Lock-up Agreements with
the Issuer.
In connection with the OptiCare Merger, Oxford entered into an
Affiliate Agreement with the Issuer in which Oxford (i) agreed not to sell,
transfer or otherwise dispose of its Shares in violation of the Securities Act
of 1933; and (ii) acknowledged that, because Oxford may be deemed an "affiliate"
of OptiCare, its Shares must be held indefinitely by Oxford unless (a) the
distribution of the Shares has been registered under the Securities Act, (b) the
sale of the Shares is made in conformity with Rule 145 promulgated under the
Securities Act, or (c) in the opinion of counsel acceptable to the Issuer, some
other exemption from registration is available with respect to any such proposed
distribution, sale, transfer or other disposition of the Shares. The Oxford
Affiliate Agreement is attached hereto as Exhibit 5 and is incorporated herein
by reference.
To the best of Oxford's knowledge, in connection with the OptiCare
Merger, Nazem Partners and Nazem entered into similar Affiliate Agreements with
the Issuer.
Before the OptiCare Merger, OptiCare, Oxford, Nazem Partners, Nazem and
certain other persons who were stockholders of OptiCare before the OptiCare
Merger were parties to a certain Amended and Restated Stockholders Agreement
(the "OptiCare Stockholders Agreement"), dated as of October 15, 1997, that
contained provisions such as restrictions on transfers of shares, rights of
first refusal, co-sale rights and provisions relating to the election of
directors. Pursuant to a Second Amended and Restated Stockholders' Agreement
entered into in connection with the OptiCare Merger, the OptiCare Stockholders
Agreement was amended and restated (effective immediately upon the effectiveness
of the OptiCare Merger) so as to terminate all of its provisions and to add
certain provisions designed to create financial disincentives for certain
employee-stockholders of OptiCare who compete with OptiCare in violation of
applicable covenants not to compete. The Second Amended and Restated
Stockholders Agreement is attached hereto as Exhibit 6 and is incorporated
herein by reference.
Before the OptiCare Merger, OptiCare, Oxford, Nazem Partners and
certain other persons who were stockholders of OptiCare before the OptiCare
Merger were parties to a certain Registration Rights Agreement (the "OptiCare
Registration Rights Agreement"), dated as of October 15, 1997, that provided for
certain demand and piggyback registration rights in favor of the stockholders.
The OptiCare Registration Rights Agreement was terminated, effective as of the
OptiCare Merger, pursuant to a certain Agreement With Respect to Termination of
Registration Rights Agreement. However, pursuant to a Letter Agreement (the
"Letter Agreement"), dated August 9, 1999, between OptiCare and Oxford, OptiCare
agreed to continue the piggyback registration rights provided for in the
OptiCare Registration Rights Agreement with respect to the Shares issuable upon
exercise of the Warrants held by Oxford. The OptiCare Registration Rights
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Agreement, the Agreement With Respect to Termination of Registration Rights
Agreement and the Letter Agreement are attached hereto as Exhibits 7, 8 and 9,
respectively, and are incorporated herein by reference.
To the best of Oxford's knowledge, except as set forth under this Item
6 and elsewhere in this Schedule 13D, there are no contracts, arrangements,
understandings, or relationships (legal or otherwise) among the persons and
entities named in Item 2, or between such persons or entities and any person,
with respect to any securities of the Issuer.
The summaries of the Warrant Agreement; Oxford Non-Transferable Warrant
to Purchase Class B Convertible Preferred Stock of OptiCare Eye Health Centers,
Inc.; Amendment to Warrant Agreement; Oxford Lock-up Agreement; Oxford Affiliate
Agreement; Second Amended and Restated Stockholders Agreement; Registration
Rights Agreement; Agreement With Respect to Termination of Registration Rights
Agreement; and Letter Agreement set forth in this Item 6 and elsewhere in this
Statement are not intended to be complete statements of all of the material
terms of those agreements. The summaries are qualified in their entirety by the
agreements themselves as filed herewith as Exhibits 1 through 9.
Item 7. Material to be Filed as Exhibits.
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Exhibit 1 Warrant Agreement, dated as of October 15, 1997, among OptiCare
Eye Health Centers, Inc., Oxford Health Plans, Inc., Fred Nazem,
Anthem Health Plans, Inc., Richard Racine and Philip Barak
Exhibit 2 Non-Transferable Warrant to Purchase Class B Convertible Preferred
Stock of OptiCare Eye Health Centers, Inc., dated as of October
15, 1997, issued to Oxford Health Plans, Inc.
Exhibit 3 Amendment to Warrant Agreement, among OptiCare Eye Health Centers,
Inc., Oxford Health Plans, Inc., Fred Nazem, Anthem Health Plans,
Inc., Richard Racine and Philip Barak
Exhibit 4 Lock-up Agreement, dated August 9, 1999, among Saratoga Resources,
Inc. (n/k/a OptiCare Health Systems, Inc.) and Oxford Health
Plans, Inc.
Exhibit 5 Affiliate Agreement, dated August 9, 1999, among Saratoga
Resources, Inc. (n/k/a OptiCare Health Systems, Inc.) and Oxford
Health Plans, Inc.
Exhibit 6 Second Amended and Restated Stockholders Agreement, dated July 30,
1999, among OptiCare Eye Health Centers, Inc., Oxford Health
Plans, Inc., Nazem OptiCare Partners, LP, Fred Nazem and certain
other parties
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Exhibit 7 Registration Rights Agreement, dated as of October 15, 1997, among
OptiCare Eye Health Centers, Inc., Oxford Health Plans, Inc.,
Nazem OptiCare Partners, LP and certain other parties
Exhibit 8 Agreement With Respect to Termination of Registration Rights
Agreement, among OptiCare Eye Health Centers, Inc., Oxford Health
Plans, Inc., Nazem OptiCare Partners, LP and certain other parties
Exhibit 9 Letter Agreement, dated August 9, 1999, between OptiCare Eye
Health Centers, Inc. and Oxford Health Plans, Inc.
[THE NEXT PAGE IS THE SIGNATURE PAGE]
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SIGNATURE
After reasonable inquiry and to the best of my knowledge and belief, I
certify that the information set forth in this statement is true, complete and
correct.
Date: September 23, 1999 OXFORD HEALTH PLANS, INC.
By: /s/ Yon Y. Jorden
-------------------------------
Name: Yon Y. Jorden
Title: Chief Financial Officer
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Schedule A
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Set forth below are the name, business address and position with Oxford
Health Plans, Inc. ("Oxford"), and the present principal occupation or
employment, of each director and executive officer (as defined in the
regulations of the Securities and Exchange Commission) of Oxford. The principal
business address of Oxford is 800 Connecticut Avenue, Norwalk, CT 06854. Except
as otherwise indicated, each person listed below is a citizen of the United
States whose business address is 800 Connecticut Avenue, Norwalk, CT 06854.
Position with Oxford
and Present Principal
Name and Business Address Occupation or Employment
- ------------------------- ------------------------
Norman C. Payson, M.D. Chairman of the Board of Directors and
Chief Executive Officer of Oxford
Fred Nazem Director of Oxford
Nazem & Company President, Nazem & Company
645 Madison Avenue
New York, NY 10022
James G. Coulter Director of Oxford
345 California Street, Suite 3300 Director and Vice President of
San Francisco, CA 94104 TPG Advisors II, Inc.
Thomas A. Scully Director of Oxford
1111 19th Street N.W. President, Federation of American Health
Suite 402 Systems
Washington, DC 20036-3688
David Bonderman Director of Oxford
201 Main Street Director and President of
Suite 2420 TPG Advisors II, Inc.
Fort Worth, TX 76102
Jonathan J. Coslet Director of Oxford
345 California Street Executive, TPG Partners
Suite 3300
San Francisco, CA 94104
Robert B. Milligan, Jr. Director of Oxford
741 Boston Post Road, Suite 201 President and Chief Executive Officer,
Guilford, CT 06437 Fairchester Inc.
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Marcia J. Radosevich, Ph.D. Director of Oxford
220 Boylston Street, #9003 Consultant, Boston University Health Policy
Boston, MA 02116 Institute
Benjamin H. Safirstein, M.D. Director of Oxford
62 South Fullerton Avenue Private Practitioner, Montclair Medical
Montclair, NJ 07042 Group
Kent J. Thiry Director of Oxford
1850 Gateway Drive #500 President and Chief Executive Officer,
San Mateo, CA 94404 Vivra Specialty Partners
Stephen F. Wiggins Director of Oxford
131 Rowayton Avenue Principal, FMR Group
Rowayton, CT 06853
William M. Sullivan President of Oxford
Jeffery H. Boyd Executive Vice President, General Counsel
and Secretary of Oxford
Yon Y. Jorden Executive Vice President, Chief Financial
Officer of Oxford
Alan Muney, M.D., M.H.A. Executive Vice President, Chief Medical
Officer of Oxford
Marvin P. Rich Executive Vice President, Chief
Administrative Officer of Oxford
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Schedule B
----------
To the best of Oxford's knowledge, set forth below are the name,
business address and position with TPG Advisors II, Inc. ("TPG Advisors"), and
the present principal occupation or employment, of each director and executive
officer of TPG Advisors. The principal business address of TPG Advisors is 201
Main Street, Suite 2420, Fort Worth, Texas 76102. Except as otherwise indicated,
each person listed below is a citizen of the United States whose business
address is 201 Main Street, Suite 2420, Fort Worth, Texas 76102.
Position with TPG Advisors
and Present Principal
Name and Business Address Occupation or Employment
- ------------------------- ------------------------
David Bonderman Director and President of TPG Advisors
James Coulter Director and Vice President of TPG Advisors
345 California Street, Suite 3300
San Francisco, California 94104
William Price Director and Vice President of TPG Advisors
345 California Street, Suite 3300
San Francisco, California 94104
Richard Schifter Vice President of TPG Advisors
1133 Connecticut Avenue, N.W.
Washington, D.C. 20036
James O'Brien Vice President, Secretary, and
Treasurer of TPG Advisors
Exhibit 1
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OPTICARE EYE HEALTH CENTERS, INC.
WARRANT AGREEMENT
October 15, 1997
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TABLE OF CONTENTS
SECTION 1......................................................................1
AUTHORIZATION AND SALE OF THE WARRANTS.........................................1
1.1 AUTHORIZATION.........................................................1
1.2 SALE OF THE WARRANTS..................................................2
1.3 RESTRICTIONS ON TRANSFER..............................................2
1.4 RESTRICTIONS ON CASHLESS EXERCISE.....................................2
1.5 EARLY TERMINATION OF CERTAIN WARRANTS.................................2
SECTION 2......................................................................2
CLOSING DATE: DELIVERY.........................................................2
2.1 CLOSING...............................................................2
2.2 DELIVERY..............................................................2
SECTION 3......................................................................3
REPRESENTATIONS AND WARRANTIES OF THE COMPANY..................................3
3.1 CERTIFICATE OF INCORPORATION AND BYLAWS...............................3
3.2 CORPORATE POWER.......................................................3
3.3 AUTHORIZATION.........................................................3
3.4 SECURITIES ACT........................................................3
SECTION 4......................................................................4
REPRESENTATIONS AND WARRANTIES OF THE WARRANT RECIPIENTS.......................4
4.1 EXPERIENCE............................................................4
4.2 INVESTMENT............................................................4
4.3 RULE 144..............................................................4
4.4 NO PUBLIC MARKET......................................................4
4.5 ACCESS TO DATA........................................................4
4.6 AUTHORIZATION.........................................................5
4.7 INVESTOR QUALIFICATION................................................5
SECTION 5......................................................................5
CONDITIONS TO CLOSING..........................................................5
5.1 REPRESENTATIONS AND WARRANTIES........................................5
5.2 BLUE SKY LAW..........................................................5
5.3 NO LITIGATION.........................................................5
5.4 STOCKHOLDERS AGREEMENT................................................5
5.5 STOCK PURCHASE AGREEMENT..............................................5
5.6 ACKNOWLEDGMENT OF RECEIPT OF CONSIDERATION............................6
SECTION 6......................................................................6
GENERAL PROVISIONS.............................................................6
6.1 GOVERNING LAW.........................................................6
<PAGE>
6.2 SUCCESSORS AND ASSIGNS; THIRD PARTY BENEFICIARIES.....................6
6.3 ENTIRE AGREEMENT; AMENDMENT AND WAIVER................................6
6.4 SURVIVAL..............................................................6
6.5 NOTICES, ETC..........................................................6
6.6 DELAYS OR OMISSIONS...................................................6
6.7 REFERENCES............................................................7
6.8 SEVERABILITY..........................................................7
6.9 PRONOUNS..............................................................7
6.10 COUNTERPARTS..........................................................7
6.11 REMEDIES..............................................................7
6.12 CERTAIN DEFINITIONS...................................................7
SECTION 7......................................................................7
TERMINATION....................................................................7
7.1 TERMINATION...........................................................7
7.2 EFFECT OF TERMINATION.................................................7
SCHEDULE A.....................................................................9
- ----------
EXHIBIT A - Form of Warrants
- ---------
EXHIBIT B - Form of Certificate of Incorporation
- ---------
- ii -
<PAGE>
OPTICARE EYE HEALTH CENTERS, INC.
WARRANT AGREEMENT
This agreement (this "Agreement") is made as of October 15, 1997, among
OPTICARE EYE HEALTH CENTERS, INC., a Connecticut corporation (the "Company"),
OXFORD HEALTH PLANS, INC. ("Oxford"), ANTHEM HEALTH PLANS, INC., a Connecticut
corporation doing business as Anthem Blue Cross and Blue Shield of Connecticut
and successor by merger to Blue Cross & Blue Shield of Connecticut, Inc.
(hereinafter "BCBS"), FRED NAZEM ("Nazem"), RICHARD RACINE and PHILIP BARAK.
Nazem and Messrs. Racine and Barak are herein collectively referred to as the
"Nazem Group" and Oxford, BCBS and the Nazem Group are herein collectively
referred to as the "Warrant Recipients."
WHEREAS, in order to induce Oxford to enter into that certain Stock
Purchase Agreement of even date herewith among the Company, Oxford and others
(the "Stock Purchase Agreement"), the Company has agreed to issue to Oxford
warrants in the form of Exhibit A hereto ("Warrants") to purchase shares of
Class B Convertible Preferred Stock, par value $.01 per share ("Class B
Preferred Stock"); and
WHEREAS, in order to induce BCBS to authorize the Company to enter into
the Stock Purchase Agreement and to take certain other actions in connection
therewith which affect the rights of BCBS as a stockholder of the Company, the
Company has agreed to issue Warrants to BCBS; and
WHEREAS, in partial consideration of Fred Nazem's agreement to provide
certain management consulting services to the Company commencing as of the
closing of the transactions contemplated by the Stock Purchase Agreement,
pursuant to a Consulting Services Agreement to be dated as of the date hereof,
by and between the Company and Nazem, the Company has agreed to issue Warrants
to Nazem (certain of which, at Mr. Nazem's direction, will be issued directly to
other members of the Nazem Group).
NOW, THEREFORE, the parties hereto agree as follows:
SECTION 1
AUTHORIZATION AND SALE OF THE WARRANTS
--------------------------------------
1.1 AUTHORIZATION. The Company will have authorized before the
Closing (as defined in Section 2.1) the issuance hereunder of Warrants to
purchase 61,022 shares of Class B Preferred Stock (the "Class B Shares"), with
the Class B Shares having the rights, preferences, privileges, and restrictions
set forth in the Company's Certificate of Amendment which shall be substantially
in the form attached as Exhibit B hereto (the "Certificate of Amendment") and
filed with the Secretary of the State of the State of Connecticut.
<PAGE>
1.2 SALE OF THE WARRANTS. At the Closing, and subject to the terms
and conditions hereof, the Company shall issue to each Warrant Recipient
Warrants to purchase the number of Class B Shares specified opposite such
Warrant Recipient's name on Schedule A.
1.3 RESTRICTIONS ON TRANSFER. The Warrants shall not be
transferable except, in the case of the individual members of the Nazem Group,
by will or by the laws of descent. The transfer of the shares of Class B
Preferred Stock issuable upon exercise of all or any portion of the Warrants and
the shares of Common Stock issuable upon conversion of the Class B Preferred
Stock will be subject to restriction pursuant to the Amended and Restated
Stockholders' Agreement (as defined in the Stock Purchase Agreement).
1.4 RESTRICTIONS ON CASHLESS EXERCISE. Anything to the contrary in
the Warrants notwithstanding, the provisions of Section 3(c) of the Warrants (a)
shall not be applicable to Oxford or BCBS and (b) shall not be available to any
member of the Nazem Group until the earlier of (i) the moment prior to the
occurrence of an initial public offering by the Company, a sale of all or
substantially all of the assets of the Company or a merger which causes the
former stockholders of the Company to own a minority interest in the surviving
company (or an affiliated company) and (ii) the date (not earlier than 42 months
from the date hereof) which is six months after Mr. Nazem has requested that the
Company make an initial public offering.
1.5 EARLY TERMINATION OF CERTAIN WARRANTS. Anything to the
contrary in Section 1 of the Warrants notwithstanding, the Warrants issued to
the members of the Nazem Group shall automatically terminate and become void in
the event that Mr. Nazem (a) without the consent of the Company's Board of
Directors, which consent will not be unreasonably withheld, sells any Class B
Shares that were acquired upon the exercise of any Warrants or any shares of
Common Stock (as defined below) acquired upon conversion of such Class B Shares,
or (b) resigns his position as a director of the Company or ceases to be a
director of the Company due to a removal for cause.
SECTION 2
CLOSING DATE: DELIVERY
----------------------
2.1 CLOSING. The closing of the issuance of the Warrants hereunder
(the "Closing") shall take place at the offices of Finn Dixon & Herling LLP at
One Landmark Square, Stamford, Connecticut, at 10:00 a.m. on October 15, 1997,
or at such other place and time upon which the Company and the Warrant
Recipients shall agree. The date of Closing is referred to as the "Closing
Date."
2.2 DELIVERY. At the Closing, the Company shall deliver to each
Warrant Recipient Warrants to purchase the number of Class B Shares set forth
opposite such Warrant Recipient's name on Schedule A, which shall be delivered
against delivery of certificates executed by such Warrant Recipient
acknowledging receipt of the consideration described in the WHEREAS clauses
hereof.
- 2 -
<PAGE>
SECTION 3
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
---------------------------------------------
The Company hereby reiterates to the Warrant Recipients the
representations and warranties that are made by the Company in the Stock
Purchase Agreement, which are incorporated herein by reference for the benefit
of the Warrant Recipients. In addition, the Company hereby represents and
warrants to each Warrant Recipient that:
3.1 CERTIFICATE OF INCORPORATION AND BYLAWS. The Company has
delivered to the Warrant Recipients true, correct, and complete copies of (a)
the Company's Certificate of Incorporation, as amended through the date hereof
(excluding the amendments to be effected pursuant to the filing of the
Certificate of Amendment), and the Company's bylaws, as amended through the date
hereof, (b) OptiCare P.C.'s certificate of incorporation, as amended through the
date hereof, and OptiCare P.C.'s bylaws, as amended through the date hereof, and
(c) the certificate of incorporation and bylaws of OptiCare Eye Health Network,
Inc., each as amended through the date hereof.
3.2 CORPORATE POWER. Subject to the filing of the Certificate of
Amendment with the Secretary of the State of the State of Connecticut, the
Company has all requisite legal and corporate power and authority to execute and
deliver this Agreement, to issue the Warrants hereunder, to issue the Class B
Shares upon exercise of the Warrants, to issue the Company's common stock, par
value $.01 per share ("Common Stock") issuable upon the conversion of the Class
B Shares, and to carry out and perform its obligations under the terms of this
Agreement
3.3 AUTHORIZATION. All corporate action on the part of the
Company, its officers, directors, and its stockholders necessary for the
authorization, execution, delivery, and performance of this Agreement by the
Company, the authorization, sale, issuance and delivery of the Warrants, the
Class B Shares and the Common Stock that is issuable upon conversion of the
Class B Shares (the "Conversion Stock") and the performance of all of the
Company's obligations hereunder and thereunder have been taken or will be taken
prior to the Closing. This Agreement constitutes a valid and legally binding
obligation of the Company, enforceable against the Company in accordance with
its respective terms, subject to (i) laws of general application relating to
bankruptcy, insolvency, and the relief of debtors, and (ii) rules of law
governing specific performance, injunctive relief, or other equitable remedies.
The Class B Shares, when issued in accordance with this Agreement and the
Conversion Shares, when issued upon the conversion of the Class B Shares, will
be duly and validly issued, fully paid, and nonassessable, and will have the
rights, preferences, privileges, and restrictions as set forth in the
Certificate of Incorporation. The Class B Shares and the Conversion Stock, when
issued, will be free of any liens, claims, encumbrances or restrictions on
transfer, except as specifically set forth in the Certificate of Incorporation,
this Agreement, the Warrants and the Amended and Restated Stockholders
Agreement. The Class B Shares and the Conversion Stock are not subject to any
preemptive rights or rights of first refusal, except as set forth in the
Warrants and such Amended and Restated Stockholders Agreement.
3.4 SECURITIES ACT. Subject to the accuracy of the Warrant
Recipients' representations in Section 4, the issuance of the Warrants in
conformity with the terms of this Agreement constitute transactions exempt from
the registration requirements of Section 5 of the Securities Act of 1933, as
amended (the "Securities Act").
- 3 -
<PAGE>
SECTION 4
REPRESENTATIONS AND WARRANTIES OF THE WARRANT RECIPIENTS
--------------------------------------------------------
Each Warrant Recipient hereby severally (and not jointly) represents
and warrants to the Company with respect to the issuance of the Warrants and
purchase of the Class B Shares thereunder as follows:
4.1 EXPERIENCE. Such Warrant Recipient has substantial experience
in evaluating and investing in private placement transactions of securities in
companies similar to the Company so that such Warrant Recipient is capable of
evaluating the merits and risks of such Warrant Recipient's investment in the
Company and has the capacity to protect such Warrant Recipient's own interests.
Such Warrant Recipient represents and warrants to the Company that it is aware
that an investment in the Company involves substantial risk and that its
financial condition and investments are such that it is in a financial position
to hold the Warrants, the Class B Shares and the Conversion Stock for an
indefinite period of time and to bear the economic risk of and withstand a
complete loss of such investment.
4.2 INVESTMENT. Such Warrant Recipient is acquiring the Warrants
for investment for such Warrant Recipient's own account, not as a nominee or
agent, and not with the view to, or for resale in connection with, any
distribution thereof. Such Warrant Recipient understands that the Warrants, the
Class B Shares and the Conversion Stock have not been, and will not be,
registered under the Securities Act or the securities laws of any state by
reason of exemptions from the registration provisions of the Securities Act and
such laws which depend upon, among other things, the bona fide nature of the
investment intent and the accuracy of such Warrant Recipient's representations
as expressed herein.
4.3 RULE 144. Such Warrant Recipient acknowledges that the
Warrants, the Class B Shares and the Conversion Stock must be held indefinitely
unless subsequently registered under the Securities Act or an exemption from
such registration is available. Such Warrant Recipient is aware of the
provisions of Rule 144 promulgated under the Securities Act which permit the
limited resale of securities purchased in a private placement subject to the
satisfaction of certain conditions, including, among other things, (i) the
existence of a public market for the securities, (ii) the availability of
certain current public information about the Company, (iii) the resale occurring
not less than a certain period of time after a party (who is not an "affiliate")
has purchased and fully paid for the securities to be sold, (iv) the sale being
effected through a "broker's transaction" or in transactions directly with a
"market maker" (as provided by Rule 144(f)) and (v) the number of securities
being sold during any three-month period not exceeding specified limitations.
4.4 NO PUBLIC MARKET. Such Warrant Recipient understands that no
public market now exists for any of the securities issued by the Company and
that there is no assurance that a public market will ever exist for the
Warrants, the Class B Shares or the Conversion Stock.
4.5 ACCESS TO DATA. Such Warrant Recipient has had an opportunity
to discuss the business, management, and financial affairs of the Company,
OptiCare, P.C. and OptiCare Eye Health Network, Inc. (collectively, the
"OptiCare Group") with the OptiCare Group's management and the opportunity to
review the OptiCare Group's facilities and business plan. Such Warrant Recipient
has also had an opportunity to ask questions of officers of the Company, which
questions were answered to its satisfaction. Such Warrant Recipient acknowledges
that it has had an opportunity to conduct its own independent due diligence
investigation of the OptiCare Group.
- 4 -
<PAGE>
4.6 AUTHORIZATION. This Agreement, when executed and delivered by
such Warrant Recipient, will constitute valid and legally binding obligations of
such Warrant Recipient, enforceable in accordance with their respective terms,
subject to (i) laws of general application relating to bankruptcy, insolvency,
and the relief of debtors, and (ii) rules of law governing specific performance,
injunctive relief, or other equitable remedies. Such Warrant Recipient, if not a
natural person, has full corporate or partnership, as the case may be, power and
authority to enter into and to perform its obligations under this Agreement in
accordance with its terms. Such Warrant Recipient represents that it has not
been organized, reorganized or recapitalized specifically for the purpose of
investing in the Company.
4.7 INVESTOR QUALIFICATION. Such Warrant Recipient (i) is an
"accredited investor" as defined in Rule 501 of Regulation D adopted under the
Securities Act, (ii) has adequate means of providing for its current needs,
(iii) has no need for liquidity in its investment in the Class A Shares, and
(iv) is able to bear the economic risk of losing its entire investment in Class
A Shares. Such Warrant Recipient has its principal office (or, in the case of an
individual, his residence) in the state set forth in Schedule A hereto.
SECTION 5
CONDITIONS TO CLOSING
---------------------
The Company's obligation to issue the Warrants at the Closing is, at
the option of the Company, subject to the fulfillment on or prior to the Closing
Date of the following conditions:
5.1 REPRESENTATIONS AND WARRANTIES. The representations and
warranties made by each Warrant Recipient in Section 4 of this Agreement shall
have been true and correct when made, and shall be true and correct as of the
Closing Date.
5.2 BLUE SKY LAW. The Company shall have obtained all necessary
blue sky law permits and qualifications, or secured exemptions therefrom,
required by any state for the issuance of the Warrants, for offer and sale of
the Class B Shares, and for the issuance of the Conversion Stock upon conversion
of the Class B Shares.
5.3 NO LITIGATION. No action, suit or other proceeding shall be
pending or threatened before any court, tribunal, or governmental authority
seeking or threatening to restrain or prohibit the consummation of the
transactions contemplated hereby, or seeking to obtain substantial damages in
respect thereof or which would otherwise materially and adversely affect the
Company, its business, assets, prospects or financial condition.
5.4 STOCKHOLDERS AGREEMENT. The Company, each Warrant Recipient,
and the holders (including BCBS) of at least sixty-six and two-thirds percent
(66 2/3%) of the voting stock of the Company shall have entered into the Amended
and Restated Stockholders Agreement.
5.5 STOCK PURCHASE AGREEMENT. The Company, Oxford and the other
parties thereto shall have entered into the Stock Purchase Agreement and the
Company shall have issued shares of its Class A Convertible Preferred Stock, par
value $.01 per share, to Oxford and such other parties as contemplated thereby.
- 5 -
<PAGE>
5.6 ACKNOWLEDGMENT OF RECEIPT OF CONSIDERATION. Each Warrant
Recipient shall have delivered to the Company a certificate, in form and
substance satisfactory to counsel for the Company, acknowledging its receipt of
the consideration described in the WHEREAS clauses hereof.
SECTION 6
GENERAL PROVISIONS
------------------
6.1 GOVERNING LAW. This Agreement shall be governed by and
construed according to the laws of the State of Connecticut.
6.2 SUCCESSORS AND ASSIGNS; THIRD PARTY BENEFICIARIES. Except as
otherwise expressly limited herein, the provisions hereof shall inure to the
benefit of, and be binding upon, the successors (including successor trustees,
in the case of a trustee), assigns, heirs, executors, and administrators of the
parties hereto. Nothing in this Agreement, expressed or implied, is intended to
confer upon any party other than the parties hereto and their respective
successors and assigns any rights, remedies, obligations, or liabilities under
or by reason of this Agreement.
6.3 ENTIRE AGREEMENT; AMENDMENT AND WAIVER. This Agreement
constitutes the full and entire understanding and agreement between the parties
with regard to the subject matter hereof and thereof and supersedes all prior
agreements among the parties. Any term of this Agreement may be amended, and the
observance of any term hereof may be waived (either generally or in a particular
instance) only with the written consent of each of the Warrant Recipients and
the written consent of the Company.
6.4 SURVIVAL. The representations, warranties, covenants, and
agreements made herein shall survive any investigation made by the Warrant
Recipients and the closing of the transactions contemplated hereby for one year.
6.5 NOTICES, ETC. All notices and other communications required or
permitted hereunder shall be in writing and shall be (i) mailed by registered or
certified mail, postage prepaid, (ii) delivered by reliable overnight courier
service, or (iii) otherwise delivered by hand or by messenger, addressed (A) if
to a Warrant Recipient, to such Warrant Recipient's address set forth on the
Schedule of Warrant Recipients, or at such other address as such Warrant
Recipient shall have furnished to the Company in writing or (B) if to the
Company, to OptiCare Eye Health Centers, Inc., 87 Grandview Avenue, Waterbury,
Connecticut 06708, Attention: President, or at such other address as the Company
shall have furnished to the Warrant Recipients in writing.
6.6 DELAYS OR OMISSIONS. No delay or omission to exercise any
right, power, or remedy accruing to any party upon any breach or default under
this Agreement, shall be deemed a waiver of any other breach or default
theretofore or thereafter occurring. Any waiver, permit, consent, or approval of
any kind or character on the part of any party of any breach or default under
this Agreement, or any waiver on the part of any party of any provisions or
conditions of this Agreement, must be in writing and shall be effective only to
the extent specifically set forth in such writing. All remedies, either under
this Agreement or by law or otherwise afforded to any of the parties, shall be
cumulative and not alternative.
- 6 -
<PAGE>
6.7 REFERENCES. Unless the context otherwise requires, any
reference to a "Section" refers to a section of this Agreement. Any reference to
"this Section" refers to the whole number section in which such reference is
contained.
6.8 SEVERABILITY. If any provision of this Agreement is held to be
unenforceable under applicable law, then such provision shall be excluded from
this Agreement and the balance of this Agreement shall be interpreted as if such
provision were so excluded and shall be enforceable in accordance with its
terms. The court in its discretion may substitute for the excluded provision an
enforceable provision which in economic substance reasonably approximates the
excluded provision.
6.9 PRONOUNS. All pronouns and any variations thereof refer to the
masculine, feminine or neuter, singular or plural, as the identity of the person
or persons may require.
6.10 COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original and enforceable against
the parties actually executing such counterpart, and all of which, when taken
together, shall constitute one instrument.
6.11 REMEDIES. The parties to this Agreement acknowledge and agree
that a breach of any of the covenants of the Company or the Warrant Recipients
set forth in this Agreement may not be compensable by payment of money damages
and, therefore, that the covenants of the foregoing parties set forth in this
Agreement may be enforced in equity by a decree requiring specific performance.
6.12 CERTAIN DEFINITIONS. As used in this Agreement, the following
terms shall have the following meanings unless the context otherwise required:
(i) "PERSON" means any individual, corporation, general
or limited partnership, limited liability company, firm, joint venture,
association, enterprise, joint stock company, trust, unincorporated organization
or other entity; and
(ii) "SUBSIDIARY" shall mean any Person as to which the
Company, directly or indirectly, owns or has the power to vote, or to exercise a
controlling influence with respect to, fifty percent (50%) or more of the
securities of any class of such person, the holders of which class are entitled
to vote for the election of directors (or persons performing similar functions)
of such person.
SECTION 7
TERMINATION
-----------
7.1 TERMINATION. This Agreement may be terminated at any time
prior to the Closing:
(a) by mutual consent of the majority of the Warrant
Recipients and the Company;
(b) by either the Company or the majority of the Warrant
Recipients if the Closing shall not have occurred by October 31, 1997.
7.2 EFFECT OF TERMINATION. If this Agreement shall be terminated
pursuant to Section 7.1, all obligations, representations and warranties of the
parties hereto under this Agreement shall terminate
- 7 -
<PAGE>
and there shall be no liability, except for any breach of this Agreement prior
to such termination, of any party to another party.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their duly authorized officers as of the date first set forth above.
OPTICARE EYE HEALTH CENTERS, INC.
By: /s/ Dean Yimoyines
-----------------------------------
Name:
Title:
OXFORD HEALTH PLANS, INC.
By: /s/ Jeffery H. Boyd
-----------------------------------
Name: Jeffery H. Boyd
Title: General Counsel and Executive Vice President
ANTHEM HEALTH PLANS, INC.
By: /s/ Carl J. Maleri
-----------------------------------
Name: Carl J. Maleri
Title: Senior Vice President, Health Delivery
Systems
/s/ Fred Nazem
--------------------------------------
Fred Nazem
/s/ Richard Racine
--------------------------------------
Richard Racine
/s/ Philip Barak
--------------------------------------
Philip Barak
- 8 -
<PAGE>
SCHEDULE A
----------
SCHEDULE OF WARRANT RECIPIENTS
Warrant Recipient's No. of Series B Shares
Name and Address Subject to Warrants
- ------------------- ----------------------
Oxford Health Plans, Inc. 28,758
800 Connecticut Avenue
4th Floor West
Norwalk, CT
Attention: Jeffrey Boyd, Esq.
Anthem Health Plans, Inc. 12,353
370 Basset Road
North Haven, CT 06473
Attention: Peter Thorkelson, Esq.
Fred Nazem 16,924
c/o Nazem & Company
645 Madison Avenue
12th Floor
New York, NY 10022
Richard Racine 1,991
c/o Nazem & Company
645 Madison Avenue
12th Floor
New York, NY 10022
Philip Barak 996
c/o Nazem & Company
645 Madison Avenue
12th Floor
New York, NY 10022
------
TOTAL 61,022
Exhibit 2
NON-TRANSFERABLE WARRANT TO PURCHASE CLASS B CONVERTIBLE PREFERRED STOCK
of
OPTICARE EYE HEALTH CENTERS, INC.
Void after October 15, 2002
This certifies that, for value received, OXFORD HEALTH PLANS, INC.
("Holder") is entitled, subject to the terms set forth below, to purchase from
OPTICARE EYE HEALTH CENTERS, INC., a Connecticut corporation (the "Company"),
Twenty-Eight Thousand Seven Hundred Fifty-Eight (28,758) shares of the Class B
Convertible Preferred Stock of the Company, par value $.0l per share (the "Class
B Preferred Stock"), as constituted on the date hereof (the "Warrant Issue
Date"), upon surrender hereof, at the principal office of the Company referred
to below, with the Notice of Exercise form attached hereto duly executed, and
simultaneous payment therefor in lawful money of the United States or otherwise
as hereinafter provided, at the Exercise Price as set forth in Section 2 below.
The number, character and Exercise Price of such shares of Class B Preferred
Stock are subject to adjustment as provided below. The term "Warrant" as used
herein shall include this Warrant and any warrants delivered in substitution or
exchange therefor as provided herein.
This Warrant is issued in connection with the transactions described in
that certain Warrant Agreement dated as of October 15, 1997, by and among the
Company, the Holder and others (the "Warrant Agreement"). The holder of this
Warrant is subject to certain restrictions set forth in the Warrant Agreement
and shall be entitled to certain rights and privileges set forth in the Warrant
Agreement. This warrant is one of the Warrants referred to as the "Warrants" in
the Warrant Agreement.
1. TERM OF WARRANT. Subject to the terms and conditions set forth
herein and to Section 1.4 of the Warrant Agreement, this Warrant shall be
exercisable, in whole or in part, during the term commencing on the Warrant
Issue Date and ending at 5:00 p.m., Eastern Daylight Time, on October 15, 2002,
and shall be void thereafter.
2. EXERCISE PRICE. The Exercise Price at which this Warrant may be
exercised shall be $93.68 per share of Class B Preferred Stock, as adjusted from
time to time pursuant to Section 11 hereof.
3. EXERCISE OF WARRANT.
(a) The purchase rights represented by this Warrant are exercisable by
the Holder in whole or in part, but not for more than the number of shares which
may then constitute the maximum number purchasable (such number being subject to
adjustment as provided in Section 11 below), at any time, or from time to time,
during the term hereof as described in Section 1 above, by the surrender of this
Warrant and the Notice of Exercise annexed hereto duly completed and executed on
behalf of the Holder, at the office of the Company (or such other office or
agency of the Company as it may designate by notice in writing to the Holder at
the address of the Holder appearing on the books of the Company), upon payment
(i) in cash or by check acceptable to the Company, (ii) by cancellation by the
Holder of indebtedness or other obligations of the Company to the Holder, or
(iii) by a combination of (i) and (ii), of the purchase price of the shares of
Class B Preferred Stock to be purchased.
<PAGE>
- 2 -
(b) This Warrant shall be deemed to have been exercised immediately
prior to the close of business on the date of its surrender for exercise as
provided above, and the person entitled to receive the shares of Class B
Preferred Stock issuable upon such exercise shall be treated for all purposes as
the holder of record of such shares as of the close of business on such date. As
promptly as practicable on or after such date and in any event within ten (10)
days thereafter, the Company at its expense shall issue and deliver to the
person or persons entitled to receive the same a certificate or certificates for
the number of shares of Class B Preferred Stock issuable upon such exercise. In
the event that this Warrant is exercised in part, the Company at its expense
will execute and deliver a new Warrant of like tenor exercisable for the number
of shares for which this Warrant may then be exercised.
(c) NET ISSUE EXERCISE. Notwithstanding any provisions herein to the
contrary but subject nonetheless to the provisions of Section 1.4 of the Warrant
Agreement, if the fair market value of one share of Class B Preferred Stock is
greater than the Exercise Price (at the date of calculation as set forth below),
in lieu of exercising this Warrant for cash, the Holder may elect to receive
shares equal to the value (as determined below) of this Warrant (or the portion
thereof being canceled) by surrender of this Warrant at the principal office of
the Company together with the properly endorsed Notice of Exercise and notice of
such election in which event the Company shall issue to the Holder a number of
shares of Class B Preferred Stock computed using the following formula:
X = Y(A-B)
------
A
Where X = the number of shares of Class B Preferred Stock to be
issued to the Holder
Y = the number of shares of Class B Preferred Stock
purchasable under the Warrant or, if only a portion
of the Warrant is being exercised, the portion of the
Warrant being canceled (at the date of such
calculation)
A = the fair market value of one share of the Company's
Class B Preferred Stock (at the date of such
calculation)
B = Exercise Price (as adjusted to the date of such
calculation)
For purposes of the above calculation, fair market value of one share of Class B
Preferred Stock shall be determined by the Company's Board of Directors in good
faith; provided, however, that where there exists a public market for the
Company's Common Stock at the time of such exercise, the fair market value per
share shall be the product of (i) the average of the closing bid and asked
prices of the Common Stock quoted in the Over-The-Counter Market Summary or the
last reported sale price of the Common Stock or the closing price quoted on the
Nasdaq National Market or on any exchange on which the Common Stock is listed,
whichever is applicable, as published in the Eastern Edition of The Wall Street
Journal for the five (5) trading days prior to the date of determination of fair
market value and (ii) the number of shares of Common Stock into which each share
of Class B Preferred Stock is convertible at the time of such exercise.
Notwithstanding the foregoing, in the event the Warrant is exercised in
connection with the Company's initial public offering of Common Stock, the fair
market value per share shall be the product of (i) the per share offering price
to the public of the Company's initial public offering, and (ii) the number of
shares of Common Stock into which each share of Class B Preferred Stock is
convertible at the time of such exercise.
<PAGE>
- 3 -
4. NO FRACTIONAL SHARES OR SCRIP. No fractional shares or scrip
representing fractional shares shall be issued upon the exercise of this
Warrant. In lieu of any fractional share to which the Holder would otherwise be
entitled, the Company shall make a cash payment equal to the Exercise Price
multiplied by such fraction.
5. REPLACEMENT OF WARRANT. On receipt of evidence reasonably
satisfactory to the Company of the loss, theft, destruction or mutilation of
this Warrant and, in the case of loss, theft or destruction, on delivery of an
indemnity agreement reasonably satisfactory in form and substance to the Company
or, in the case of mutilation, on surrender and cancellation of this Warrant,
the Company at its expense shall execute and deliver, in lieu of this Warrant, a
new warrant of like tenor and amount.
6. RIGHTS OF STOCKHOLDERS. This Warrant shall not entitle its Holder
to any of the rights of a stockholder of the Company.
7. RESTRICTIONS ON TRANSFER. The Holder of this Warrant by acceptance
hereof agrees that the transfer of this Warrant, the shares of Class B Preferred
Stock issuable upon the exercise of all or any portion of this Warrant and the
shares of Common Stock issuable upon conversion of the Class B Preferred Stock
(the "Securities") are subject to the provisions of Section 1.3 of the Warrant
Agreement, which include restrictions on transfer of the Securities.
8. RESERVATION OF STOCK. The Company covenants that during the term
this Warrant is exercisable, the Company will reserve from its authorized and
unissued Class B Preferred Stock a sufficient number of shares to provide for
the issuance of Class B Preferred Stock upon the exercise of this Warrant (and
shares of its Common Stock for issuance on conversion of such Class B Preferred
Stock) and, from time to time, will take all steps necessary to amend its
certificate of incorporation as amended (the "Certificate") to provide
sufficient reserves of shares of Class B Preferred Stock issuable upon exercise
of the Warrant (and shares of its Common Stock for issuance on conversion of
such Class B Preferred Stock). The Company further covenants that all shares
that may be issued upon the exercise of rights represented by this Warrant and
payment of the Exercise Price, all as set forth herein, will be free from all
taxes, liens and charges in respect of the issue thereof (other than taxes in
respect of any transfer occurring contemporaneously or otherwise specified
herein). The Company agrees that its issuance of this Warrant shall constitute
full authority to its officers who are charged with the duty of executing stock
certificates to execute and issue the necessary certificates for shares of Class
B Preferred Stock upon the exercise of this Warrant.
9. NOTICES.
(a) Whenever the Exercise Price or number of shares of Class B
Preferred Stock purchasable hereunder shall be adjusted pursuant to Section 11
hereof, the Company shall issue a certificate signed by its Chief Financial
Officer setting forth, in reasonable detail, the event requiring the adjustment,
the amount of the adjustment, the method by which such adjustment was
calculated, and the Exercise Price and number of shares purchasable hereunder
after giving effect to such adjustment, and shall cause a copy of such
certificate to be mailed (by first-class mail, postage prepaid) to the Holder of
this Warrant.
(b) In case:
(i) the Company shall take a record of the holders of its Common
Stock (or other stock or securities at the time receivable upon the exercise of
this Warrant) for the purpose of entitling them to receive any dividend or other
distribution, or any right to subscribe for or purchase any shares of stock of
any class or any other securities, or to receive any other right, or
<PAGE>
- 4 -
(ii) of any capital reorganization of the Company, any
reclassification of the capital stock of the Company, any consolidation or
merger of the Company with or into another corporation, or any conveyance of 51%
of the assets of the Company, to another corporation, or
(iii) of any voluntary dissolution, liquidation or winding-up of
the Company,
then, and in each such case, the Company will mail or cause to be mailed to the
Holder or Holders a notice specifying, as the case may be, (A) the date on which
a record is to be taken for the purpose of such dividend, distribution or right,
and stating the amount and character of such dividend, distribution or right, or
(B) the date on which such reorganization, reclassification, consolidation,
merger, conveyance, dissolution, liquidation or winding-up is to take place, and
the time, if any is to be fixed, as of which the holders of record of Class B
Preferred Stock or Common Stock (or such stock or securities at the time
receivable upon the exercise of this Warrant) shall be entitled to exchange
their shares of Class B Preferred Stock or Common Stock (or such other stock or
securities) for securities or other property deliverable upon such
reorganization, reclassification, consolidation, merger, conveyance,
dissolution, liquidation or winding-up. Such notice shall be mailed at least 15
days prior to the date therein specified.
(c) All such notices, advices and communications shall be deemed to
have been received (i) in the case of personal delivery, on the date of such
delivery and (ii) in the case of mailing, on the third business day following
the date of such mailing.
10. AMENDMENTS.
(a) Any term of this Warrant may be amended with the written consent of
the Company and the holders of warrants representing not less than sixty percent
(60) of the shares of Class B Preferred Stock issuable upon exercise of any and
all outstanding warrants issued pursuant to the Warrant Agreement (the "Class B
Preferred Stock Warrants"), even without the consent of the Holder. Any
amendment effected in accordance with this Section 10 shall be binding upon each
holder of any of the Class B Preferred Stock Warrants, each future holder of all
such Class B Preferred Stock Warrants, each future holder of all such Class B
Preferred Stock Warrants, and the Company; provided, however, that no special
consideration or inducement may be given to any such holder in connection with
such consent that is not given ratably to all such holders, and that such
amendment must apply to all such holders equally and ratably in accordance with
the number of shares of Class B Preferred Stock issuable upon exercise of their
Class B Preferred Stock Warrants. The Company shall promptly give notice to all
holders of Class B Preferred Stock Warrants of any amendment effected in
accordance with this Section 10.
(b) No waivers of, or exceptions to, any term, condition or provision
of this Warrant, in any one or more instances, shall be deemed to be, or
construed as, a further or continuing waiver of any such term, condition or
provision.
11. ADJUSTMENTS. The Exercise Price and the number of shares
purchasable hereunder are subject to adjustment from time to time as follows:
11.1 CONVERSION OR REDEMPTION OF CLASS B PREFERRED STOCK. Should
all of the Company's Class B Preferred Stock be, or if outstanding would be, at
any time prior to the expiration of this Warrant or any portion thereof,
automatically converted into shares of the Company's Common Stock in accordance
with the Certificate, then this Warrant shall become immediately exercisable for
that number of shares of the Company's Common Stock equal to
<PAGE>
- 5 -
the number of shares of the Common Stock that would have been received if this
Warrant had been exercised in full and the Class B Preferred Stock received
thereupon had been simultaneously converted immediately prior to such event.
11.2 MERGER, SALES OF ASSETS, ETC. If at any time while this
Warrant, or any portion thereof, is outstanding and unexpired there shall be (i)
a reorganization (other than a combination, reclassification, exchange or
subdivision of shares otherwise provided for herein), (ii) a merger or
consolidation of the Company with or into another corporation in which the
Company is not the surviving entity, or a reverse triangular merger in which the
Company is the surviving entity but the shares of the Company's capital stock
outstanding immediately prior to the merger are converted by virtue of the
merger into other property, whether in the form of securities, cash, or
otherwise, or (iii) a sale or transfer of the Company's properties and assets
as, or substantially as, an entirety to any other person, then, as a part of
such reorganization, merger, consolidation, sale or transfer, lawful provision
shall be made so that the holder of this Warrant shall thereafter be entitled to
receive upon exercise of this Warrant, during the period specified herein and
upon payment of the Exercise Price then in effect, the number of shares of stock
or other securities or property of the successor corporation resulting from such
reorganization, merger, consolidation, sale or transfer that a holder of the
shares deliverable upon exercise of this Warrant would have been entitled to
receive in such reorganization, consolidation, merger, sale or transfer if this
Warrant had been exercised immediately before such reorganization, merger,
consolidation, sale or transfer, all subject to further adjustment as provided
in this Section 11. The foregoing provisions of this Section 11.2 shall
similarly apply to successive reorganizations, consolidations, mergers, sales
and transfers and to the stock or securities of any other corporation that are
at the time receivable upon the exercise of this Warrant. If the per-share
consideration payable to the holder hereof for shares in connection with any
such transaction is in a form other than cash or marketable securities, then the
value of such consideration shall be determined in good faith by the Company's
Board of Directors. In all events, appropriate adjustment (as determined in good
faith by the Company's Board of Directors) shall be made in the application of
the provisions of this Warrant with respect to the rights and interests of the
Holder after the transaction, to the end that the provisions of this Warrant
shall be applicable after that event, as near as reasonably may be, in relation
to any shares or other property deliverable after that event upon exercise of
this Warrant.
11.3 RECLASSIFICATION, ETC. If the Company, at any time while
this Warrant, or any portion hereof, remains outstanding and unexpired by
reclassification of securities or otherwise, shall change any of the securities
as to which purchase rights under this Warrant exist into the same or a
different number of securities of any other class or classes, this Warrant shall
thereafter represent the right to acquire such number and kind of securities as
would have been issuable as the result of such change with respect to the
securities that were subject to the purchase rights under this Warrant
immediately prior to such reclassification or other change and the Exercise
Price therefor shall be appropriately adjusted, all subject to further
adjustment as provided in this Section 11. No adjustment shall be made pursuant
to this Section 11.3, upon any conversion or redemption of the Class B Preferred
Stock which is the subject of Section 11.1.
11.4 SPLIT, SUBDIVISION OR COMBINATION OF SHARES. If the Company
at any time while this Warrant, or any portion hereof, remains outstanding and
unexpired shall split, subdivide or combine the securities as to which purchase
rights under this Warrant exist, into a different number of securities of the
same class, the Exercise Price for such securities shall be proportionately
decreased in the case of a split or subdivision or proportionately increased in
the case of a combination.
11.5 ADJUSTMENTS FOR DIVIDENDS IN STOCK OR OTHER SECURITIES OR
PROPERTY. If while this Warrant, or any portion hereof, remains outstanding and
unexpired the holders of the securities as to which purchase rights under this
Warrant exist at the time shall have received, or, on or after the record date
fixed for the determination of eligible
<PAGE>
- 6 -
stockholders, shall have become entitled to receive, without payment therefor,
other or additional stock or other securities or property (other than cash) of
the Company by way of dividend, then and in each case, this Warrant shall
represent the right to acquire, in addition to the number of shares of the
security receivable upon exercise of this Warrant, and without payment of any
additional consideration therefor, the amount of such other or additional stock
or other securities or property (other than cash) of the Company that such
holder would hold on the date of such exercise had it been the holder of record
of the security receivable upon exercise of this Warrant on the date hereof and
had thereafter, during the period from the date hereof to and including the date
of such exercise, retained such shares and/or all other additional stock
available by it as aforesaid during such period, giving effect to all
adjustments called for during such period by the provisions of this Section 11.
11.6 CERTIFICATE AS TO ADJUSTMENTS. Upon the occurrence of each
adjustment or readjustment pursuant to this Section 11, the Company at its
expense shall promptly compute such adjustment or readjustment in accordance
with the terms hereof and furnish to each Holder of this Warrant a certificate
setting forth such adjustment or readjustment and showing in detail the facts
upon which such adjustment or readjustment is based. The Company shall, upon the
written request, at any time, of any such Holder, furnish or cause to be
furnished to such Holder a like certificate setting forth: (i) such adjustments
and readjustments; (ii) the Exercise Price at the time in effect; and (iii) the
number of shares and the amount, if any, of other property that at the time
would be received upon the exercise of the Warrant.
11.7 NO IMPAIRMENT. The Company will not, by any voluntary
action, avoid or seek to avoid the observance or performance of any of the terms
to be observed or performed hereunder by the Company, but will at all times in
good faith assist in the carrying out of all the provisions of this Section 11
and in the taking of all such action as may be necessary or appropriate in order
to protect the rights of the Holder of this Warrant against impairment.
12. MISCELLANEOUS.
12.1 GOVERNING LAW. This Warrant shall be governed by and
construed according to the laws of the State of Connecticut.
12.2 REFERENCES. Unless the context otherwise requires, any
reference to a "Section" refers to a section of this Warrant. Any reference to
"this Section" refers to the whole number section in which such reference is
contained.
12.3 DEFINITIONS. Capitalized terms used in this Warrant but not
defined herein shall have the meanings set forth in the Warrant Agreement.
<PAGE>
- 7 -
IN WITNESS WHEREOF, OPTICARE EYE HEALTH CENTERS, INC. has caused this
Warrant to be executed by its officers thereunto duly authorized.
Dated: October 15, 1997
OPTICARE EYE HEALTH CENTERS, INC.
By /s/ Dean Yimoyines
------------------------------
HOLDER:
(individual)
- -----------------------------
Name:
(other)
NAME: OXFORD HEALTH PLANS, INC.
By: /s/ Jeffery H. Boyd
--------------------------
Jeffery H. Boyd
General Counsel and Executive Vice President
<PAGE>
- 8 -
NOTICE OF EXERCISE
TO: OPTICARE EYE HEALTH CENTERS, INC.
(1) The undersigned hereby (A) elects to purchase ______ shares of
Class B Preferred Stock of OPTICARE EYE HEALTH CENTERS, INC. pursuant to the
provisions of Section 3(a) of the attached Warrant, and tenders herewith payment
of the purchase price for such shares in full, or (B) elects to exercise this
Warrant for the purchase of ______ shares of Class B Preferred Stock, pursuant
to the provisions of Section 3(c) of the attached Warrant.
(2) In exercising this Warrant, the undersigned hereby confirms and
acknowledges that the shares of Class B Preferred Stock or the Common Stock to
be issued upon conversion thereof are being acquired solely for the account of
the undersigned and not as a nominee for any other party, and for investment,
and that the undersigned will not offer, sell or otherwise dispose of any such
shares of Class B Preferred Stock or Common Stock except under circumstances
that will not result in a violation of the Securities Act of 1933, as amended,
or any applicable state securities laws.
(3) Please issue a certificate or certificates representing said shares
of Class B Preferred Stock in the name of the undersigned or in such other name
as is specified below:
------------------------------
(Name)
------------------------------
(Name)
(4) Please issue a new Warrant for the unexercised portion of the
attached Warrant in the name of the undersigned or in such other name as is
specified below:
------------------------------
(Name)
- ------------------------------ ------------------------------
(Date) (Signature)
Exhibit 3
AMENDMENT TO WARRANT AGREEMENT
THIS AMENDMENT is made as of August 13, 1999 by and among OptiCare Eye
Health Centers, Inc., a Connecticut corporation (the "Company"), Oxford Health
Plans, Inc., Anthem Health Plans, Inc., a Connecticut corporation doing business
as Anthem Blue Cross & Blue Shield of Connecticut and successor by merger to
Blue Cross & Blue Shield of Connecticut, Inc., Fred Nazem, Richard Racine and
Philip Barak.
WHEREAS, the parties hereto are parties to a certain Warrant Agreement
dated as of October 15, 1997; and
WHEREAS, the Company has entered into a certain Agreement and Plan of
Merger dated as of April 12, 1999, among the Company, PrimeVision Health, Inc.,
Saratoga Resources, Inc., OptiCare ShellCo Merger Corporation and PrimeVision
ShellCo Merger Corporation (the "Merger Agreement"); and
WHEREAS, the parties hereto desire to amend the Warrant Agreement in
certain respects effective contemporaneously upon the consummation of the
mergers (the "Mergers") contemplated by the Merger Agreement;
NOW THEREFORE, in consideration of the premises and other good and
valuable consideration, the receipt and adequacy of which is hereby
acknowledged, the parties hereto agree as follows:
1. DEFINITIONS. Capitalized terms used herein that are not otherwise
defined shall have the meanings ascribed to such terms in the Warrant Agreement.
2. AMENDMENTS. Effective contemporaneously upon the consummation of
the Mergers contemplated by the Merger Agreement, the parties hereto agree that
the Warrant Agreement shall be amended as follows:
a) All references to the Warrants contained in the Warrant
Agreement shall mean and include the warrants to purchase
shares of common stock of Saratoga Resources, Inc. to be issued
in substitution for the Warrants pursuant to Section 2.12(a) of
the Merger Agreement.
b) The second sentence of Section 1.3 of the Warrant Agreement
shall be deleted.
c) Section 1.4 of the Warrant Agreement regarding restrictions on
cashless exercise shall be deleted in its entirety, and the
following shall be inserted in lieu thereof:
<PAGE>
2
"Anything to the contrary in the Warrants notwithstanding, the
provisions of Section 3(c) of the Warrants shall not be
applicable to Oxford or BCBS."
d) Section 1.5 of the Warrant Agreement regarding early
termination of the Warrants issued to the members of the Nazem
Group shall be deleted in its entirety.
3. COUNTERPARTS. This Amendment may be executed in any number of
counterparts, and each executed counterpart shall have the same force and effect
as an original instrument and as if all the parties to all of the counterparts
had signed the same instrument. Any signature page of this Amendment may be
detached from any counterpart of this Amendment without impairing the legal
effect of any signatures thereon, and may be attached to another counterpart of
this Amendment identical in form hereto but having attached to it one or more
signature pages.
IN WITNESS WHEREOF, the parties have hereunto executed this Amendment
as of the day and year first above written.
OPTICARE EYE HEALTH CENTERS, INC.
By: /s/ Steven L. Ditman
----------------------------------
Name: Steven L. Ditman
Title: Treasurer
OXFORD HEALTH PLANS, INC.
By: /s/ Jon S. Richardson
----------------------------------
Name: Jon S. Richardson
Title: Ass't Secretary
ANTHEM HEALTH PLANS, INC.
By: /s/ George D. Martin
----------------------------------
Name: George D. Martin
Title: Treasurer
<PAGE>
3
/s/ Fred Nazem
----------------------------------
Fred Nazem
----------------------------------
Richard Racine
/s/ Philip Barak
----------------------------------
Philip Barak
Exhibit 4
LOCK-UP AGREEMENT
Saratoga Resources, Inc.
301 Congress Avenue--Suite 1550
Austin, Texas 78701
Re: Agreement and Plan of Merger (the "Merger Agreement") dated
as of April 12, 1999 among Saratoga Resources, Inc. (the
"Company"), OptiCare Shellco Merger Corporation, PrimeVision
Shellco Merger Corporation, OptiCare Eye Health Centers,
Inc. and PrimeVision Health, Inc. (collectively, the
"Parties")
Ladies and Gentlemen:
1. The undersigned understands that the Parties have entered into the
Merger Agreement pursuant to which each of PrimeVision Health, Inc., a Delaware
corporation ("Prime"), and OptiCare Eye Health Centers, Inc., a Connecticut
corporation ("OptiCare") will merge with wholly owned subsidiaries of the
Company (the "Transaction"). The undersigned further understands that, in
connection with the Transaction, the Company has filed a registration statement
on Form S-4 (the "Registration Statement") with the Securities and Exchange
Commission (the "Commission") for the registration of shares of common stock of
the Company ("Common Stock") to be issued in the Transaction to the holders of
securities of OptiCare and Prime (the "Offering").
2. In order to induce the Parties to proceed with each of the
Transaction and the Offering, the undersigned agrees, for the benefit of the
Parties, that should the Offering and the Transaction be effected, the
undersigned will not, without your prior written consent, directly or
indirectly, offer, offer to sell, sell, loan, pledge, grant any rights, contract
to sell or grant any option to purchase or otherwise dispose or transfer
(collectively, "Dispose," or a "Disposition") (i) any shares of Common Stock or
other equity securities of the Company ("Other Securities"), or (ii) any other
securities convertible into, or exchangeable or exercisable for, shares of
Common Stock or Other Securities, owned (within the meaning of Rule 13d-3 under
the Securities Exchange Act of 1934, as amended) by the undersigned upon
consummation of the Transaction or otherwise hereafter acquired, for a period
COMMENCING on the date hereof and ENDING 180 days subsequent to the Closing Date
(as defined in the Merger Agreement) of the Transaction (the "Lock-up Period").
3. The foregoing restrictions are expressly intended to preclude the
undersigned from engaging in any hedging or other transaction which is designed
to or is reasonably expected to lead to or result in a Disposition of Common
Stock or Other Securities during the Lock-up Period even if such securities
would be Disposed of by someone other than the undersigned. Such prohibited
hedging or other transactions include without limitation any short sale (whether
or not against the box) or any purchase, sale or grant of any right (including
without limitation any put or call option) with respect to any securities that
include, relate to or derive any significant part of their value from the Common
Stock or Other Securities.
4. The undersigned hereby agrees and consents to the entry of stop
transfer instructions with the Company's transfer agent against the transfer of
the Common Stock or
<PAGE>
Other Securities held by the undersigned except those transferred in compliance
with this agreement.
5. In the event that the Closing Date shall not occur on or before
November 30, 1999, this Lock-up Agreement shall be of no further force or
effect.
6. Notwithstanding the foregoing:
(i) if the undersigned is an individual, he or she may transfer any
shares of Common Stock or Other Securities or any securities convertible into or
exchangeable or exercisable for shares of Common Stock or Other Securities,
either during his or her lifetime or on death by will or intestacy to his or her
immediate family, or
(ii) if the undersigned is an entity, it may transfer any shares of
Common Stock or Other Securities or any securities convertible into or
exchangeable or exercisable for shares of Common Stock or Other Securities, to
the limited partners, shareholders, members or other equity owners of such
entity;
PROVIDED, HOWEVER, that prior to any transfer each transferee shall execute an
agreement reasonably satisfactory to the Company pursuant to which each
transferee shall agree to receive and hold such securities of the Company
subject to the provisions hereof, and there shall be no further transfer except
in accordance with the provisions hereof. For the purposes of this paragraph,
"immediate family" shall mean spouse, lineal descendant, father, mother, brother
or sister of the transferor.
7. The undersigned confirms that he, she or it understands that the
Parties will rely upon the representations set forth in this agreement in
proceeding with each of the Transaction and the Offering. This agreement shall
be binding on the undersigned and his, her or its respective successors, heirs,
personal representatives and assigns.
Very truly yours,
Date: August 9, 1999 /s/ Jon S. Richardson Ass't Secretary
------------------ ------------------------------------------
(Signature and title or Capacity, if any)
OXFORD HEALTH PLANS, INC.
------------------------------------------
(Print Name of Stockholder
Jon S. Richardson, Ass't Secretary
------------------------------------------
(Print Name and Title or Capacity of
Signatory, if Stockholder is a Corporation
or Other Entity)
- 2 -
Exhibit 5
AFFILIATE AGREEMENT
August 9, 1999
Saratoga Resources, Inc.
301 Congress Avenue - Suite 1550
Austin, TX 78701
Gentlemen:
In connection with the merger of OptiCare Eye Health Centers, Inc.
("OptiCare") with a subsidiary of Saratoga Resources, Inc. (the "Company"),
pursuant to which each shareholder of OptiCare will receive shares of Common
Stock, .001 par value per share, of the Company in accordance with the Agreement
and Plan of Merger ("the Merger Agreement") dated as of April 12, 1999 by and
among the Company, OptiCare, OptiCare Shellco Merger Corporation, PrimeVision
Shellco Merger Corporation and PrimeVision Health, Inc., I have been advised
that I may be deemed to be an underwriter of the Company as that term is defined
for purposes of paragraphs (c) and (d) of Rule 145 ("Rule 145") of the rules and
regulations of the Securities and Exchange Commission (the "Commission") under
the Securities Act of 1933, as amended (the "Securities Act").
In connection with the Merger Agreement and the receipt of the merger
consideration thereunder, I represent and warrant to the Company and agree that:
1. I shall not make any sale, transfer or other disposition of the
shares of Common Stock that I receive pursuant to the Merger Agreement (the
"Shares") in violation of the Securities Act or the rules and regulations of the
Commission promulgated thereunder.
2. I have been advised that the issuance of the Shares to me pursuant
to the Merger Agreement has been or will be registered with the Commission under
the Securities Act by means of a Registration Statement on Form S-4. However, I
have also been advised that, because at the time the Merger Agreement was
submitted to the shareholders of OptiCare, I could be deemed an "affiliate" of
OptiCare and because any distribution by me of the Shares I receive as aforesaid
will not be registered under the Securities Act, such shares must be held by me
indefinitely unless (i) the distribution of such Shares has been registered
under the Securities Act, (ii) a sale of such Shares is made in conformity with
the provisions of Rule 145, or (iii) in the opinion of counsel acceptable to the
Company, some other exemption from registration requirements is available with
respect to any such proposed distribution, sale, transfer or other disposition
of such Shares.
3. I have carefully read this letter and the Merger Agreement and have
discussed the requirements of each and the limitations upon the distribution,
sale, transfer or disposition of the Shares, to the extent I believe necessary,
with my personal counsel or with counsel for OptiCare.
4. The Company is under no obligation to register the sale, transfer
or other disposition of the Shares to be received by me pursuant to the Merger
Agreement or to take any
<PAGE>
other action necessary for the purpose of making an exemption from registration
requirements available.
5. There will be placed on the certificates representing the Shares
received by me, or any certificates delivered in substitution therefor, a legend
stating in substance:
"The shares represented by this certificate were issued in a
transaction to which Rule 145 under the Securities Act of 1933 applies.
The shares represented by this certificate may be transferred only in
accordance with the terms of a letter agreement between the registered
holder and Saratoga Resources, Inc., a copy of which agreement is on
file at the principal offices of Saratoga Resources, Inc."
6. Unless the transfer by me of the Shares held by me is a sale made
in conformity with the provisions of Rule 145(d) or made pursuant to a
registration statement under the Securities Act, the Company reserves the right
to take such actions, including, without limitation, the placing of a legend on
the certificates representing the transferred shares, when necessary, in the
Company's opinion, to comply with the Securities Act of 1933 or the rules and
regulations promulgated thereunder.
It is understood and agreed that the legend set forth in paragraph 5
above shall be removed by delivery of substitute certificates without such
legend if I shall have delivered to the Company a copy of a letter from the
staff of the Commission, or a opinion of counsel in form and substance
satisfactory to the Company, to the effect that such legend is not required for
the purpose of the Securities Act.
It is further understood and agreed that this letter agreement will be
null and void if the mergers contemplated by the Merger Agreement do not become
effective.
Very truly yours,
OXFORD HEALTH PLANS, INC.
BY /s/ Jon S. Richardson
-----------------------------
Ass't Secretary
- 2 -
Exhibit 6
SECOND AMENDED AND RESTATED
STOCKHOLDERS' AGREEMENT
THIS SECOND AMENDED AND RESTATED STOCKHOLDERS' AGREEMENT is made as of
July 30, 1999 by and among OptiCare Eye Health Centers, Inc., a Connecticut
corporation (the "Company"), and the stockholders of the Company listed on
EXHIBIT A hereto (the "Stockholders").
WITNESSETH
WHEREAS, the Company, the Stockholders and certain additional
stockholders of the Company are parties to an Amended and Restated Stockholders'
Agreement dated as of October 15, 1997 (the "Stockholders' Agreement"); and
WHEREAS, the Company has entered into a certain Agreement and Plan of
Merger dated as of April 12, 1999 among the Company, PrimeVision Health, Inc.,
Saratoga Resources, Inc., OptiCare Shellco Merger Corporation and PrimeVision
Shellco Merger Corporation (the "Merger Agreement"); and
WHEREAS, upon consummation of the mergers (the "Mergers") contemplated
by the Merger Agreement, all of the issued and outstanding shares of capital
stock of OptiCare held by the Stockholders will be automatically converted into
the right to receive shares of common stock of Saratoga Resources, Inc.; and
WHEREAS, in anticipation of the Mergers, the parties desire to amend
and restate the Stockholders' Agreement in its entirety, to be effective
immediately upon consummation of the Mergers; and
WHEREAS, pursuant to Section 26(d) of the Stockholders' Agreement, such
agreement may be amended upon the execution of a written agreement by
stockholders of the Company holding at least sixty-six and two-thirds percent
(66 2/3%) of the then issued and outstanding shares of capital stock of the
Company; and
WHEREAS, the Stockholders hold such requisite number of shares of
capital stock of the Company;
NOW THEREFORE, in consideration of the premises and of other good and
valuable consideration, the receipt and adequacy of which is hereby
acknowledged, the parties hereto agree as follows:
DEFINITIONS. For all purposes of this Agreement, the following
words and phrases shall have the meanings respectively assigned to them below,
unless in any such case a different meaning is plainly required by the context.
<PAGE>
AFFILIATE shall mean, (i) as to a Stockholder who is a natural
person, (A) the spouse or lineal descendants of such Stockholder, (B) a trust
for the benefit of such Stockholder or any of the parties referred to in the
foregoing clause of this definition, or (C) a partnership in which a Stockholder
and/or the spouse or lineal descendants of such Stockholder are the sole
partners; and (ii) as to a Stockholder which is a corporation, partnership or
other legal entity, (A) any corporation, partnership, or other legal entity
controlled by such Stockholder, and (B) any other party that directly, or
indirectly through one or more intermediaries controls or is controlled by, or
is under common control with, any Stockholder.
AGREEMENT shall mean this Second Amended and Restated
Stockholders' Agreement and any and all subsequent amendments thereto.
APPLICABLE FEDERAL RATE shall mean the Federal mid-term rate
as defined in, and determined in accordance with, Section 1274(d) of the
Internal Revenue Code of 1986, as amended.
CLOSING DATE OR CLOSING shall have the meaning ascribed
thereto in Section 4(c).
COMPANY shall mean OptiCare Eye Health Centers, Inc., or any
successor entity.
EMPLOYEE STOCKHOLDER shall mean a Stockholder who is also an
employee of OptiCare, P.C. pursuant to an Employment Agreement.
EMPLOYMENT AGREEMENT shall mean a written employment
agreement, as amended and restated, now or hereafter in effect by and between a
Stockholder and OptiCare, P.C., or any predecessor of such entity.
FAIR MARKET VALUE on a given date means (i) if the Saratoga
Common Stock is listed on a national securities exchange, the mean between the
highest and lowest sale prices reported as having occurred on the primary
exchange on which the Saratoga Common Stock is listed and traded on the date
prior to such date, or, if there is no such sale on that date, then on the last
preceding date on which such a sale was reported; (ii) if the Saratoga Common
Stock is not listed on any national securities exchange but is quoted in the
National Market System of The Nasdaq Stock Market on a last sale basis, the
average between the high bid price and low ask price reported on the date prior
to such date, or, if there is no such sale on that date, then on the last
preceding date on which a sale was reported; or (iii) if the Saratoga Common
Stock is not listed on a national securities exchange nor quoted in the National
Market System of The Nasdaq Stock Market on a last sale basis, the amount
determined by the Board of Directors of Saratoga to be the fair market value
based upon a good faith attempt to value the Saratoga Common Stock accurately.
MERGERS shall have the meaning ascribed thereto in the
recitals to this Agreement.
<PAGE>
MERGER AGREEMENT shall have the meaning ascribed thereto in
the recitals to this Agreement.
OPTICARE GROUP shall mean any or all of the Company, OptiCare,
P.C. and Saratoga;
OPTICARE, P.C. shall mean OptiCare, P.C., a Connecticut
professional services corporation.
PURCHASE PRICE shall mean the purchase price paid for Saratoga
Common Stock by the Company as determined under this Agreement.
RETIREMENT shall mean the retirement of an Employee
Stockholder from OptiCare, P.C . upon written notice given by the retiring
Employee Stockholder to the applicable member of the OptiCare Group, as provided
for in the Employee Stockholder's Employment Agreement;
SARATOGA shall mean Saratoga Resources, Inc., a Delaware
corporation.
SARATOGA COMMON STOCK shall mean the Common Stock, par value
$0.001 per share, of Saratoga to be received in exchange for capital stock of
the Company upon consummation of the Mergers, or purchased directly from
Saratoga upon the exercise of options or otherwise;
SELLER shall mean a Stockholder who is required to sell the
Stockholder's Saratoga Common Stock hereunder.
STOCKHOLDER(S) shall have the meaning ascribed thereto in the
introductory paragraph of this Agreement.
The use of pronouns of any gender shall include the other genders, and
either the singular or plural shall include the other.
TERMINATION OF PRIOR PROVISIONS.
-------------------------------
Effective immediately upon the consummation of the Mergers
contemplated by the Merger Agreement, the parties hereto agree that all prior
provisions of the Stockholders' Agreement shall terminate and be superseded in
their entirety by the provisions of this Agreement.
The parties further agree that if the Merger Agreement is
terminated and the Mergers are abandoned prior to their consummation, then this
Agreement shall terminate contemporaneously upon the termination of the Merger
Agreement, and in such event the Stockholders' Agreement shall continue in full
force and effect in accordance with its terms.
<PAGE>
EMPLOYEE STOCKHOLDER VIOLATION OF NONCOMPETE. In the event
that (i) an Employee Stockholder terminates his or her employment with OptiCare,
P.C. prior to or in connection with his or her Retirement, (ii) the employment
of an Employee Stockholder terminates as a result of his or her disability or
(iii) the Employee Stockholder is terminated with or without cause by OptiCare,
P.C. and (iv) in the case of any of (i), (ii) or (iii), such Employee
Stockholder competes with the OptiCare Group (as defined in his or her
Employment Agreement) within five (5) years after his or her employment
terminates, then in addition to any remedies available to OptiCare, P.C. under
the Employment Agreement, the following shall apply:
COMPANY OPTION TO PURCHASE.
--------------------------
The Employee Stockholder and all Affiliates of the
Employee Stockholder shall be deemed to have offered to sell all (but not less
than all) of the Saratoga Common Stock owned by them to the Company. The Company
shall have the right and option, for a period of six (6) months following the
date of such competition but within five (5) years of such termination (the
"Option Period") to purchase such Saratoga Common Stock for a Purchase Price
equal to 25% of the Fair Market Value of such Saratoga Common Stock. The
Purchase Price shall be payable in accordance with and subject to the provisions
of Section 4 below.
Upon delivery by the Company to the terminated
Employee Stockholder and his or her Affiliates of a written notice of election
to purchase, the terminated Employee Stockholder and his or her Affiliates agree
to assign and transfer to the Company all such Saratoga Common Stock against
payment of the aforesaid Purchase Price, which such amount shall be paid in
accordance with and subject to the provisions of Section 4 below.
FORFEITURE OF PROCEEDS. If the Employee Stockholder or any
Affiliates of the Employee Stockholder shall have theretofore sold or otherwise
transferred, or shall at any time during the Option Period sell or otherwise
transfer, any shares of Saratoga Common Stock, then such Employee Stockholder
and such Affiliates thereof shall, promptly upon the request of the Company (and
in any event within 30 days of such request), remit to the Company an amount
equal to the product of (i) 75% of the Fair Market Value of the Saratoga Common
Stock on the date of the sale or transfer, times (ii) the number of shares of
Saratoga Common Stock so sold or transferred. Any amounts so paid to the Company
shall be treated as damages and not as a penalty, and shall not affect or limit
the OptiCare Group's rights to obtain an injunction or additional damages under
any other agreement.
PAYMENT OF PURCHASE PRICE; TERMS AND CONDITIONS; CLOSING.
--------------------------------------------------------
PAYMENT. Payment of the Purchase Price for Saratoga Common
Stock purchased by the Company under this Agreement shall be made as follows:
<PAGE>
If the total Purchase Price to be paid to the Seller
is not more than Twenty-Five Thousand Dollars ($25,000), payment shall be made
in full by bank or cashier's check payable to the Seller at the Closing.
If the total Purchase Price to be paid to the Seller
is more than Twenty-Five Thousand Dollars ($25,000), the Company may pay the
Purchase Price in full at Closing pursuant to paragraph (i) above, but shall
otherwise pay to the Seller, at the Closing, Twenty-Five Thousand Dollars
($25,000), by bank or cashier's check, with the balance to be paid in accordance
with paragraph (iii) below.
At the Closing, unless the Purchase Price has been
paid in full, the Company shall execute and deliver to the Seller a
non-negotiable promissory note (the "Note") in the amount of the balance of the
Purchase Price, payable in (A) thirty-six (36) equal monthly installments of
principal and interest if the Purchase Price is more than Twenty-five Thousand
Dollars ($25,000) but not more than One Hundred Fifty Thousand Dollars
($150,000); or (B) sixty (60) equal monthly installments of principal and
interest if the Purchase Price is more than One Hundred Fifty Thousand Dollars
($150,000). The first installment shall be due one month after the Closing Date
and the remaining installments shall be due at intervals of one month
thereafter. The Note shall provide for the payment of interest at the Applicable
Federal Rate which is in effect on the date of the Closing. The Note shall be
subject to prepayment, in whole or in part, at any time, without premium or
penalty. In addition, the Note shall provide that, in the event of default in
the payment of any installment when due and if such default continues for
fifteen (15) days after written notice thereof shall have been served upon the
maker, the entire unpaid principal amount thereof and accrued interest thereon
shall at the option of the holder become immediately due and payable.
TRANSFER OF STOCK; SECURITY. At the time of Closing, the
Seller shall execute and deliver to the Company such instruments as are
necessary and proper to transfer to the Company full and complete title to the
Seller's Saratoga Common Stock; PROVIDED, HOWEVER that in the event that the
entire Purchase Price is not paid in cash at the Closing, the Company shall
forthwith pledge all of the purchased Saratoga Common Stock to Seller as
collateral security for the payment of the Note. All stock certificates so
pledged shall be held by the secretary or assistant secretary of the Company as
escrow agent until the Note is paid in full. Upon such payment, the Saratoga
Common Stock shall be delivered to the Company, free and clear of Seller's lien.
The agreement evidencing such pledge as security shall otherwise be subject to
the approval of the respective attorneys of the Company and the Seller, which
approval shall not be unreasonably withheld. During the period such Saratoga
Common Stock is held as collateral and so long as all installments of principal
and interest in respect of the Note are paid as they fall due, all of the
incidents of ownership of such Saratoga Common Stock shall be enjoyed by the
Company.
CLOSING. The closing of the sale of Saratoga Common Stock (the
"Closing") shall occur on a date selected by the Company not later than ninety
(90) days after the notice of exercise (the "Closing Date").
LOCK-UP AGREEMENT.
-----------------
<PAGE>
Each Employee Stockholder hereby expressly covenants and
agrees with the Company and Saratoga that the Employee Stockholder shall not,
during any six (6) month period beginning January 1 and ending June 30, or
beginning July 1 and ending December 31, sell, make any short sale of, loan,
grant any option for the purchase of, or otherwise dispose of, Saratoga Common
Stock if the Saratoga Common Stock subject to such sale, loan, grant or disposal
would exceed twenty-five percent (25%) of the total number of shares of Saratoga
Common Stock held by the Employee Stockholder on the effective date of the
Mergers provided for in the Merger Agreement; provided, however, that to the
extent the effective date of the Mergers provided for in the Merger Agreement
falls other than on the first day of either six (6) month period described
herein, the Employee Stockholder may sell during that particular six (6) month
period a prorated portion of the twenty-five percent (25%) which corresponds to
the number of full months left in that particular six (6) month period.
TERM. The lock-up agreement set forth in this Section 5 shall
commence on the date hereof and shall continue thereafter in full force and
effect until December 31, 2001.
REMEDIES. The Employee Stockholder acknowledges and agrees
that in the event of any violation of the lock-up agreement set forth in this
Section 5 or breach or attempted breach thereof, that it will be difficult if
not impossible for the Company or Saratoga to ascertain with any certainty the
amount and extent of the Company's or Saratoga's damages, and the Company and
Saratoga shall be entitled, in addition to all other rights and remedies which
the Company and Saratoga may have at law or in equity, to obtain, after notice
and hearing, injunctive relief, without the necessity of posting bond therefor,
enjoining and restraining the Employee Stockholder from any further breach or
attempted breach or violation of the lock-up agreement. The Employee Stockholder
further acknowledges that the Company and Saratoga would have no adequate remedy
at law for damages only without the equitable relief of restraining orders and
injunctions following notice and hearing.
MISCELLANEOUS.
-------------
NOTICES. Any notice, consent or other communication which any
party hereto is required or permitted to give to any other party hereto shall be
delivered personally or sent by registered or certified mail, return receipt
requested, to the Stockholder's last known residence address or, if to the
Company, to the principal office of the Company, as the case may be, unless
otherwise noticed in writing.
ENTIRE AGREEMENT. This Agreement sets forth the entire
understanding of the parties hereto with respect to the subject matter herein
and supersedes and replaces all previous representations, negotiations and
commitments, oral or in writing, with respect thereto.
FURTHER ACTS. Each of the parties hereto shall execute and
deliver all such additional documents or legal instruments, and shall perform or
cause to be performed
<PAGE>
all such further acts and things, as may be necessary or desirable to carry out
the purposes and intents of this Agreement.
AMENDMENT. This Agreement may only be amended, modified or
altered by execution of a signed written instrument adopted by the affirmative
vote of Stockholders holding at least sixty-six and two-thirds percent (66 2/3%)
of the Saratoga Common Stock held by all of the Stockholders.
BINDING EFFECT. This Agreement may not be assigned by any
party hereto without the express written consent of all of the parties hereto.
This Agreement shall be binding upon all of the parties hereto and any successor
to such party, by operation of law or otherwise, and shall also be binding upon,
and shall inure to the benefit of, and permitted assignee of any Stockholder.
GOVERNING LAW. This Agreement shall be governed by the laws of
the State of Connecticut, without regard to its conflicts of law rules.
USAGE. Any term used in the singular or plural, or masculine,
feminine, or neuter form shall be singular or plural, and masculine, feminine,
or neuter as proper reading requires.
COUNTERPARTS. This Agreement may be executed in any number of
counterparts, and each executed counterpart shall have the same force and effect
as an original instrument and as if all the parties to all of the counterparts
had signed the same instrument. Any signature page of this Agreement may be
detached from any counterpart of this Agreement without impairing the legal
effect of any signatures thereon, and may be attached to another counterpart of
this Agreement identical in form hereto but having attached to it one or more
signature pages.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
<PAGE>
IN WITNESS WHEREOF, the parties have hereunto executed this Agreement
as of the day and year first above written.
OPTICARE EYE HEALTH CENTERS, INC.
By: /s/ Dean Yimoyines
------------------------------
Name: Dean Yimoyines
Title: President
<PAGE>
OPTICARE EYE HEALTH CENTERS, INC.
Counterpart Signature Page
to
Second Amended and Restated
Stockholders' Agreement
dated
July 30, 1999
Stockholder: OXFORD HEALTH PLANS, INC.
FOR INDIVIDUAL STOCKHOLDERS:
Signature:
---------------------------
FOR INSTITUTIONAL STOCKHOLDERS:
By: /s/ Jon S. Richardson
----------------------------------
Name: Jon S. Richardson
Title: Ass't Secretary
<PAGE>
EXHIBIT A
---------
Name of Stockholder
- ------------------------------------------
Anthem Health Plans, Inc.
Oxford Health Plans, Inc.
Nazem OptiCare Partners, LP
Eugene W. Huang
Christopher Kaufman
Fred Nazem
Richard Racine
Philip Barak
R. Kent Stiverson, M.D.
W. Scott Peterson, M.D.
Walter Scott Peterson Family Investment
Limited Partnership
Getnick Family Limited Partnership
Paula H. Getnick
Linda Yimoyines
Jeffrey L. Oberman, M.D.
Neal J. Zimmerman, M.D.
Vincent P. deLuise, M.D.
Richard D. Gilbert, M.D.
Sharon L. Ruchman
Ruchman Family Limited Partnership
Doris Yimoyines
Wayne I. Larrison, M.D.
Philip M. Falcone, M.D.
Perry Seamonds, M.D.
Jeffrey N. Kaplan, M.D.
Brian DeBroff, M.D.
Kenneth Greenberg, M.D.
Jeffrey R. Sandler, M.D.
Herbert Grossman
John R. Connolly
Philip D. Schub, M.D.
R. Blake
D. Cosenza
D. Agronaov
Exhibit 7
=======================================
OPTICARE EYE HEALTH CENTERS, INC.
REGISTRATION RIGHTS AGREEMENT
October __, 1997
=======================================
<PAGE>
TABLE OF CONTENTS
-----------------
SECTION 1......................................................................1
REGISTRATION RIGHTS............................................................1
1.1 CERTAIN DEFINITIONS................................................1
1.2 HOLDERS' REQUESTED REGISTRATION....................................3
1.3 COMPANY REGISTRATION...............................................5
1.4 FORM S-3 REGISTRATION..............................................6
1.5 EXPENSES OF REGISTRATION...........................................8
1.6 LOCK-UP............................................................8
1.7 REGISTRATION PROCEDURES............................................8
1.8 INDEMNIFICATION...................................................10
1.9 INFORMATION BY HOLDERS............................................12
1.10 RULE 144 REPORTING................................................12
1.11 TERMINATION OF REGISTRATION RIGHTS................................13
SECTION 2.....................................................................13
MISCELLANEOUS.................................................................13
2.1 GOVERNING LAW.....................................................13
2.2 SUCCESSORS AND ASSIGNS; ASSIGNMENT OF RIGHTS......................13
2.3 ENTIRE AGREEMENT; AMENDMENT; WAIVER...............................13
2.4 NOTICES, ETC......................................................14
2.5 DELAYS OR OMISSIONS...............................................14
2.6 RIGHTS; SEPARABILITY..............................................14
2.7 TITLES AND SUBTITLES..............................................14
2.8 COUNTERPARTS......................................................14
2.9 AGGREGATION OF STOCK..............................................14
2.10 THIRD PARTY BENEFICIARIES.........................................15
2.11 REMEDIES..........................................................15
SCHEDULE A....................................................................17
<PAGE>
OPTICARE EYE HEALTH CENTERS, INC.
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (this "Agreement") is made and
entered into as of the ____ day of October, 1997, by and among OPTICARE EYE
HEALTH CENTERS, INC., a Connecticut corporation (the "Company"), OXFORD HEALTH
PLANS, INC., a Connecticut corporation ("Oxford"), NAZEM OPTICARE PARTNERS, LP,
a Delaware limited partnership (the "Partnership"), Christopher Kaufman, an
individual ("Kaufman"), Eugene W. Huang, an individual ("Huang"), and ANTHEM
HEALTH PLANS, INC., a Connecticut corporation doing business as Anthem Blue
Cross and Blue Shield of Connecticut and successor by merger to Blue Cross &
Blue Shield of Connecticut, Inc. (hereinafter "BCBS") ("BCBS", with BCBS,
Kaufman, Huang, the Partnership and Oxford being referred to collectively as the
"Investors").
WHEREAS, Oxford, the Partnership, Kaufman, Huang and the Company are
parties to a Stock Purchase Agreement, dated as of the date hereof (the "Stock
Purchase Agreement"), pursuant to which their respective obligations to purchase
shares of the Company's Class A Convertible Preferred Stock, par value $.0l per
share (the "Class A Preferred Stock") are conditioned upon the execution and
delivery by the Company of this Agreement; and
WHEREAS, BCBS has heretofore exchanged certain of its shares of the
Company's previously outstanding Class B Common Stock, Class C Common Stock and
Class D Common Stock for shares of the Company's Class A Preferred Stock and
certain of its shares of the Company's previously outstanding Class C Common
Stock for shares of the Company's Class B Convertible Preferred Stock, par value
$.0l per share ("Class B Preferred Stock") on the understanding that the Company
would execute and deliver this Agreement.
NOW, THEREFORE, in consideration of the mutual promises and covenants
set forth herein, the parties hereto agree as follows:
SECTION 1
REGISTRATION RIGHTS
-------------------
1.1 CERTAIN DEFINITIONS. As used in this Agreement, the following
definitions shall apply:
"COMMISSION" shall mean the Securities and Exchange Commission or
any other federal agency at the time administering the Securities Act.
"COMMON STOCK" shall mean the Company's Common stock, par value
$.01 per share.
<PAGE>
"EXCHANGE ACT" shall mean the Securities Exchange Act of 1934 as
amended, or any similar successor federal statute and the rules and regulations
promulgated thereunder, all as the same shall be in effect from time to time.
"HOLDER" shall mean any holder of outstanding Registrable
Securities.
"INVESTOR SHARES" shall mean and include (a) the shares of Class A
Preferred Stock issued to Oxford, the Partnership, Kaufman, and Huang pursuant
to the Stock Purchase Agreement, (b) the shares of Class A Preferred Stock and
the shares of the Class B Preferred Stock issued to BCBS pursuant to the
exchange that is referred to in the Recitals hereto, (c) the shares of Class B
Preferred Stock issued to Oxford and BCBS upon the exercise of warrants issued
to Oxford and BCBS pursuant to a Warrant Agreement dated as of the date hereof,
among the Company, Oxford, BCBS and others, (d) the shares of Common Stock
issued upon conversion of such shares of Class A Preferred Stock or Class B
Preferred Stock, and (e) any securities issued or issuable, directly or
indirectly, in respect of such Class A Preferred Stock or Class B Preferred
Stock or such Common Stock upon any stock split, stock dividend recapitalization
or similar event.
"IPO" shall mean a firm commitment underwritten public offering
pursuant to an effective registration statement under the Securities Act
covering the offer and sale of Common Stock for the account of the Company.
The terms "REGISTER", "REGISTERED" and "REGISTRATION" refer to a
registration effected by preparing and filing a registration statement in
compliance with the Securities Act (and any post-effective amendments filed or
required to be filed), and the declaration or ordering of the effectiveness of
such registration statement.
"REGISTRABLE SECURITIES" shall mean the Common Stock that is
acquired by the Investors upon conversion of shares of Class A Preferred Stock
or Class B Preferred Stock that are Investor Shares; PROVIDED, HOWEVER, that
Registrable Securities shall not include any shares of Common Stock that have
previously been registered or sold to the public or any Investor Shares that
have been sold in a private transaction in which the transferor's rights under
this Agreement are not assigned.
"REGISTRATION EXPENSES" shall mean all expenses incurred by the
Company in complying with Sections 1.2, 1.3 and 1.4 including, without
limitation, all registration, qualification and filing fees, printing expenses,
escrow fees, fees and disbursements of counsel for the Company and for the
Holders, blue sky fees and expenses, and the expense of any special audits
incident to or required by any such registration (but excluding the compensation
of regular employees of the Company, which shall be paid in any event by the
Company). Registration Expenses shall not include Selling Expenses or other
compensation paid to underwriters or other agents or brokers to effect the sale
or the fees and disbursements of more than one counsel for the Investors.
2
<PAGE>
"RULE 144" shall mean Rule 144 promulgated under the Securities
Act, or any similar successor rule, as the same shall be in effect from time to
time.
"RULE 145" shall mean Rule 145 promulgated under the Securities
Act, or any similar successor rule, as the same shall be in effect from time to
time.
"RULE 415" shall mean Rule 415 promulgated under the Securities
Act, or any similar successor rule, as the same shall be in effect from time to
time.
"SECURITIES ACT" shall mean the Securities Act of 1933, as
amended, or any similar federal statute and the rules and regulations of the
Commission thereunder, as shall be in effect at the time.
"SELLING EXPENSES" shall mean all underwriting discounts, selling
commissions, and stock transfer taxes applicable to the sale of Registrable
Securities.
"STOCKHOLDERS' AGREEMENT" shall mean the Amended and Restated
Stockholders' Agreement dated as of the date hereof, among the Company, the
Investors and others.
1.2 HOLDERS' REQUESTED REGISTRATION.
(a) REQUEST FOR REGISTRATION. In case, at any time after the
earlier of (i) the third anniversary of the Closing under (and as defined in)
the Stock Purchase Agreement and (ii) the closing of an IPO, the Company shall
receive a written request from any Holders (the "Initiating Holders") that the
Company effect any underwritten registration, qualification, or compliance with
respect to Registrable Securities held by such Initiating Holders, then the
Company shall:
(i) promptly give written notice of the proposed
registration, qualification, or compliance to all other Holders; and
(ii) as soon as practicable, use its best efforts to effect
such registration, qualification, or compliance (including, without limitation,
the execution of an undertaking to file post-effective amendments, appropriate
qualification under applicable blue sky or other state securities laws, and
appropriate compliance with applicable regulations issued under the Securities
Act and any other governmental requirements or regulations) as may be so
requested and as would permit or facilitate the sale and distribution of all or
such portion of such Registrable Securities as are specified in such request,
together with all or such portion of the Registrable Securities of any Holders
joining in such request as are specified in a written request received by the
Company within 20 days after the date the Company mails such written notice.
Provided, however, that the Company shall not be obligated to take any
action to effect any such registration, qualification, or compliance pursuant to
this Section 1.2:
3
<PAGE>
(A) In any jurisdiction in which the Company would be
required to execute a general consent to service of process in effecting such
registration, qualification, or compliance unless the Company is already subject
to service in such jurisdiction and except as may be required by the Securities
Act; or
(B) During the period starting with the date sixty (60)
days prior to the Company's estimated date of filing of, and ending on the date
one hundred eighty (180) days immediately following the effective date of any
registration statement pertaining to securities of the Company (other than a
registration of securities in a Rule 145 transaction or with respect to an
employee benefit plan); PROVIDED, HOWEVER, that the Company is actively
employing in good faith all reasonable efforts to cause such registration
statement to become effective.
(C) If the anticipated aggregate gross offering price to
the public of the Registrable Securities proposed to be sold by the Initiating
Holders will not aggregate at least $5,000,000; or
(D) If the Company has, within the twelve-month period
preceding the date of such request, already effected a registration for any
Holders pursuant to this Section 1.2.; or
(E) If the Company has already effected two
registrations for any Holders pursuant to this Section 1.2, excluding any
registration made pursuant to this Section 1.2 that does not, by reason of a
limitation of the number of Registrable Securities to be underwritten made as
contemplated by Section 1.2(b), result in an aggregate gross offering price to
the public of Registrable Securities of $5,000,000 or more.
Subject to the foregoing clauses (A), (B), (C), (D) and (E), the
Company shall file a registration statement covering the Registrable Securities
so requested to be registered (and, in the Company's discretion, also covering
shares that the Company itself then desires to sell) as soon as practicable, and
in any event within 120 days, in the case of an initial public offering
requested pursuant to this Section 1.2, and 60 days in all other cases, after
receipt of the request or request of the Initiating Holders; PROVIDED, HOWEVER,
that the Company may defer filing such a registration statement for a period of
six months if it believes that a deferral would be in the best interests of its
shareholders.
(b) UNDERWRITING. The right of any Holder to registration pursuant
to this Section 1.2 shall be conditioned upon such Holder's participation in
such underwriting and the inclusion of such Holder's Registrable Securities in
the underwriting to the extent requested (unless otherwise mutually agreed by a
majority in interest of the Initiating Holders intending to participate in such
registration and such Holder with respect to such participation and inclusion)
to the extent provided herein.
The Company shall (together with all Holders selling Registrable
Securities) enter into an underwriting agreement in customary form with the
managing underwriter selected for such underwriting by a majority in interest of
the Initiating Holders (which underwriter is reasonably
4
<PAGE>
acceptable to the Company). Notwithstanding any other provision of this Section
1.2, if the managing underwriter advises the Initiating Holders in writing that
marketing factors require a limitation of the number of shares to be
underwritten, then the Company shall so advise all Holders and the number of
shares of Registrable Securities and other securities that may be included in
the registration and underwriting shall be allocated among the Company and all
Holders as follows: First, to the Company so as to permit the Company to include
shares that the Company desires to sell, up to, but not in excess of the greater
of (A) 50% of the total number of shares which may be included or (B) the amount
by which the total number of shares which may be included exceeds the number of
shares which all Holders have requested to be included; and second to the
participating Holders of Registrable Securities pro rata, in proportion to the
respective amounts of Registrable Securities held by such Holders of Registrable
Securities at the time of the filing of the Registration Statement, up to, but
not in excess of, the remaining number of shares which may be included. No
Registrable Securities or other securities excluded from the underwriting by
reason of the underwriter's marketing limitation shall be included in such
registration. To facilitate the allocation of shares in accordance with the
above provisions, the Company or the underwriters may round the number of shares
allocated to any Holder or other holder to the nearest 100 shares.
If any Holder or other holder disapproves of the terms of the
underwriting, such person may elect to withdraw therefrom by written notice to
the Company, the managing underwriter and the Initiating Holders. The
Registrable Securities so withdrawn shall also be withdrawn from registration,
and such Registrable Securities shall not be transferred in a public
distribution prior to 180 days after the effective date of such registration, or
such other shorter period of time as the underwriters may require. If by the
withdrawal of such Registrable Securities, a greater number of Registrable
Securities held by other Holders may be included in such registration (up to the
maximum of any limitation imposed by the underwriters), then the Company shall
use its best efforts to offer to all Holders who have included Registrable
Securities in the registration the right to include additional Registrable
Securities in the same proportion and manner used in determining the effect of
the underwriter limitation in this Section 1.2(b).
1.3 COMPANY REGISTRATION.
(a) NOTICE OF REGISTRATION. If at any time or from time to time,
the Company shall determine to register in an underwritten offering any of its
securities, either for its own account or the account of a security holder or
holders, other than (i) a registration relating solely to employee benefit
plans, or (ii) a registration relating solely to a Rule 145 transaction, or a
registration on any registration form that does not permit secondary sales, the
Company shall:
(i) promptly give to each Holder written notice thereof; and
(ii) include in such registration (and any related
qualification under blue sky laws or other compliance), and in any underwriting
involved therein, all the
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Registrable Securities specified in a written request by each Holder received by
the Company within 20 days after the Company mails such written notice, subject
to the provisions below.
(b) UNDERWRITING. The right of any Holder to registration pursuant
to this Section 1.3 shall be conditioned upon the participation by such Holder
in such underwriting and the inclusion of Registrable Securities of such Holder
in the underwriting to the extent provided herein. Those parties proposing to
distribute their securities through such underwritings shall (together with the
Company and the other holders distributing their securities through such
underwriting) enter into an underwriting agreement in customary form with the
managing underwriter selected for such underwriting by the Company.
Notwithstanding any other provisions of this Section 1.3, if the managing
underwriter determines that marketing factors require a limitation of the number
of shares to be underwritten or a limitation on the number of Registrable
Securities or other securities to be underwritten, the managing underwriter may
limit the Registrable Securities or other securities to be included in such
registration. The Company shall so advise all Holders and the other holders
distributing their securities through such underwriting, and the number of
shares of Registrable Securities and other securities that may be included in
the registration and underwriting shall be allocated among the Company, the
Holders and the other holders as follows: First, to the Company so as to permit
the Company to include all shares that the Company desires to sell; second, to
the participating Holders of Registrable Securities pro rata, in proportion to
the respective amounts of Registrable Securities held by such participating
Holders of Registrable Securities at the time of the filing of the registration
statement; and third, to all other participating holders pro rata, in proportion
to the respective amounts of securities entitled to inclusion in such
registration held by all such other participating holders. To facilitate the
allocation of shares in accordance with the above provisions, the Company or the
underwriter may round the number of shares allocated to any Holder or other
holder to the nearest 100 shares. If any Holder or other holder disapproves of
the terms of any such underwriting, he may elect to withdraw therefrom by
written notice to the Company and the managing underwriter. Any securities
excluded or withdrawn from such underwriting shall be withdrawn from such
registration, and shall not be transferred in a public distribution prior to 180
days after the effective date of the registration statement relating thereto, or
such other shorter period of time as the underwriters may require.
(c) RIGHT TO TERMINATE REGISTRATION. The Company shall have
the right to terminate or withdraw any registration initiated by it under this
Section 1.3 prior to the effectiveness of such registration whether or not any
Holder has elected to include securities in such registration.
1.4 FORM S-3 REGISTRATION. After its IPO, the Company shall use its
best efforts to qualify for registration on Form S-3. After the Company has
qualified for the use of Form S-3, in addition to the rights contained in the
foregoing provisions of this Section 1, any Investors owning Registrable
Securities which constitute at least 15% of the outstanding Common Stock of the
Company (determined on an as-converted basis) shall have the right to request
registration on Form S-3 (all such requests shall be in writing and shall state
the number of shares of Registrable Securities to be disposed of and the
intended methods of disposition of such shares by such Holder or Holders);
PROVIDED, HOWEVER, that Investors owning Registrable Securities which constitute
less than 15% of the outstanding Common Stock of the Company
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(determined on an as-converted basis) shall have the right to request
registration on Form S-3 if the anticipated aggregate gross offering price to
the public exceeds $500,000; AND PROVIDED, FURTHER, that no request will be
honored with respect to proposed S-3 offerings which do not have an anticipated
aggregate offering price to the public of at least $500,000. In case the Company
shall receive from an Initiating Holder or Holders a written request that the
Company effect a registration on Form S-3 and any related state securities
qualification or blue sky compliance with respect to such an amount of the
Registrable Securities owned by such Initiating Holder or Holders, the Company
shall:
(a) promptly give written notice of the proposed registration, and
any related qualification or compliance, to all other Holders; and
(b) as soon as practicable, use its best efforts to effect such
registration and all such qualifications and compliances as may be so requested
and as would permit or facilitate the sale and distribution of all or such
portion of such Holder's or Holders' Registrable Securities as are specified in
such request, together with all or such portion of the Registrable Securities of
any other Holder or Holders joining in such request as are specified in a
written request given within 20 days after receipt of such written notice from
the Company; PROVIDED, HOWEVER, that the Company shall not be obligated to
effect any such registration, qualification, or compliance pursuant to this
Section 1.4: (1) if Form S-3 is not available for such offering by Holder(s);
(2) if the Company has, within the twelve-month period preceding the date of
such request, already effected two registrations on Form S-3 for any Holders
pursuant to this Section 1.4; or (3) in any jurisdiction in which the Company
would be required to execute a general consent to service of process in
effecting such registration, qualification or compliance unless the Company is
already subject to service in such jurisdiction and except as may be required by
the Securities Act.
Subject to the foregoing, the Company shall effect such registration.
qualification, or compliance (including, without limitation, the execution of an
undertaking to file post-effective amendments, appropriate qualification under
applicable blue sky or other state securities laws and appropriate compliance
with applicable regulations issued under the Securities Act and any other
governmental requirements or regulations) covering the Registrable Securities
and other securities so requested to be registered as soon as practicable after
receipt of the request or requests of the Holder or other Holders. Registrations
effected pursuant to this Section 1.4 shall not be counted as demands for
registration or registrations effected pursuant to Sections 1.2 or 1.3.
If the registration to be effected pursuant to this Section 1.4 is to
be an underwritten public offering, it shall be managed by an underwriter or
underwriters acceptable to the Company and selected by a majority in interest of
the Holders requesting registration. In such event, the right of any Holder to
registration pursuant to this Section 1.4 shall be conditioned upon the
participation by such Holder in such underwriting and the inclusion of the
Registrable Securities of such Holder in the underwriting to the extent provided
herein. If the managing underwriter so selected determines that marketing
factors require a limitation of the number of shares to be underwritten, the
managing underwriter may limit the Registrable Securities held by such Holders
to be included in such registration. The Company shall so advise such
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Holders, and the number of shares of Registrable Securities that may be included
in the registration shall be allocated among the Holders of Registrable
Securities and other holders as follows: First, to the participating Holders of
Registrable Securities pro rata in proportion to the respective amounts of
Registrable Securities held by each of such participating Holders of Registrable
Securities at the time of filing of the registration statement; and second, to
all other holders pro rata in proportion to the respective amounts of
securities, if any, entitled to inclusion in such registration held by all such
other participating holders. Any Registrable Securities or other securities that
are so excluded from the underwriting shall be excluded from the registration.
As used throughout this Section the term "Form S-3" shall be deemed to include
any equivalent successor form for registration pursuant to the Act.
1.5 EXPENSES OF REGISTRATION. All Registration Expenses shall be borne
by the Company; PROVIDED, HOWEVER, that in connection with any registration of
securities, the Company shall only be responsible for the fees and disbursements
of one counsel for the Holders (selected by Holders of at least 51% of the
Registrable Securities participating in the offering). All Selling Expenses
relating to securities so registered shall be borne by the holders of such
securities pro rata on the basis of the number of shares of securities so
registered on their behalf.
1.6 LOCK-UP. Each of the Holders hereby agrees not to offer, sell,
make any short sale of, loan, grant any option for the purchase of, or otherwise
dispose of any of the Company's Common Stock held of record or beneficially
owned by such person (other than those included in the registration) which at
the time of the effective date of such registration statement may be sold or
otherwise transferred in reliance upon Rule 144 during the period of time (not
to exceed 180 days) determined by the Board of Directors of the Company upon
advice of its managing underwriter, from and after the effective date of the
registration statement for the Company's IPO; provided that the obligations of
the Holders under this Section 1.6 shall not apply unless each officer and
director of the Company and each holder of five percent (5%) of the Company's
voting securities then outstanding, in each case, who are not signatories to
this Agreement, are bound by similar restrictions. Such restriction shall not
apply to shares registered in such offering. In order to enforce this provision,
the Company may impose stop-transfer instructions with respect to such shares
until the end of such period. The obligations described in this Section 1.6
shall not apply to a registration relating solely to employee benefit plans on
Form S-1 or Form S-8 or similar forms that may be promulgated in the future or
to a registration relating solely to a Rule 145 transaction on Form S-4 or
similar forms that may be promulgated in the future.
1.7 REGISTRATION PROCEDURES. If and whenever the Company is required
by the provisions of this Section 1 to use its best efforts to effect promptly
the registration of Registrable Securities the Company shall use its best
efforts to:
(a) Prepare and file with the Commission a registration statement
with respect to such Registrable Securities and use its best efforts to cause
such registration statement to become and remain effective as provided herein.
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(b) Prepare and file with the Commission such amendments and
supplements to such registration statement and the prospectus used in connection
therewith as may be necessary to keep such registration statement effective and
current and to comply with the provisions of the Securities Act with respect to
the sale of or other disposition of all Registrable Securities covered by such
registration statement, including such amendments and supplements as may be
necessary to reflect the intended method of disposition of the prospective
seller or sellers of such Registrable Securities but for no longer than one
hundred eighty (180) days subsequent to the effective date of such registration
in the case of a registration statement on Form S-1 (or any similar form of
registration statement required to set forth substantially identical
information); PROVIDED, HOWEVER, that (i) such period shall be extended for a
period of time equal to the period the underwriter recommends that all the
Holders refrain from selling the securities included in such registration due to
marketing conditions or other conditions which adversely affect the offer and
sale of such securities; and (ii) in the case of any registration of Registrable
Securities on Form S-3 which is intended to be offered on a continuous or
delayed basis, such period shall be extended, if necessary, to keep the
registration statement effective until all such Registrable Securities are sold,
provided that Rule 415 permits an offering on a continuous or delayed basis, and
provided further that applicable rules under the Securities Act governing the
obligation to file a post-effective amendment permit, in lieu of filing a
post-effective amendment that (I) includes any prospectus required by Section
10(a)(3) of the Securities Act or (II) reflects facts or events representing a
material or fundamental change in the information set forth in the registration
statement, the incorporation by reference of information required to be included
in (I) and (II) above to be contained in periodic reports filed pursuant to
Section 13 or 15(d) of the Exchange Act in the registration statement.
(c) Furnish to each prospective seller of Registrable Securities
such number of copies of a prospectus, including a preliminary prospectus, in
conformity with the requirements of the Securities Act, and such other
documents, as such seller may reasonably request in order to facilitate the
public sale or other disposition of the Registrable Securities of such seller.
(d) Notify each seller of Registrable Securities covered by such
registration statement at any time when a prospectus relating thereto is
required to be delivered under the Securities Act of the happening of any event
as a result of which the prospectus included in such registration statement, as
then in effect, includes an untrue statement of a material fact or omits to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading or incomplete in the light of the
circumstances then existing, and at the request of any such seller, prepare and
furnish to such seller a reasonable number of copies of a supplement to or an
amendment of such prospectus as may be necessary so that, as thereafter
delivered to the purchasers of such shares, such prospectus shall not include an
untrue statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein not misleading or
incomplete in the light of the circumstances then existing.
(e) Cause all such Registrable Securities registered pursuant to
such registration statement hereunder to be listed on each securities exchange
or approved for
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quotation on any inter-dealer quotation system on which similar securities
issued by the Company are then listed or quoted.
(f) Provide a transfer agent and registrar for all Registrable
Securities registered pursuant to such registration statement and a CUSIP number
of all such Registrable Securities not later than the effective date of such
registration.
(g) Otherwise use its best efforts to comply with all applicable
rules and regulations of the Commission, and make available to its security
holders, as soon as reasonably practicable, an earnings statement covering the
period of at least twelve months, but not more than eighteen months, beginning
with the first month after the effective date of the Registration Statement,
which earnings statement shall satisfy the provisions of Section 11(a) of the
Securities Act.
(h) In connection with any underwritten offering pursuant to a
registration statement filed pursuant to Section 1.2 or 1.3 hereof, will enter
into an underwriting agreement reasonably necessary to effect the offer and sale
of Common Stock, provided such underwriting agreement contains customary
underwriting provisions and provided further that if the underwriter so requests
the underwriting agreement will contain customary contribution provisions.
(i) Prevent any seller of Registrable Securities from effecting
sales of shares covered by any registration statement after receipt of
telegraphic or written notice from the Company to suspend sales to permit the
Company to correct or update a registration statement or prospectus.
1.8 INDEMNIFICATION. In the event any Registrable Securities are
included in a registration statement under this Section 1:
(a) The Company will indemnify each Holder, each of its officers,
directors, shareholders and partners, and each person controlling such Holder
within the meaning of Section 15 of the Securities Act, and each underwriter, if
any, and each person who controls any underwriter within the meaning of Section
15 of the Securities Act, against all expenses, claims, losses, damages or
liabilities (or actions in respect thereof), including any of the foregoing
incurred in settlement of any litigation, commenced or threatened, arising out
of or based on any untrue statement (or alleged untrue statement) of a material
fact contained, on the effective date thereof, in any registration statement,
any prospectus contained therein, or any amendment or supplement thereto, or
based on any omission (or alleged omission) to state therein a material fact
required to be stated therein or necessary to make the statements therein (in
the case of a prospectus, in the light of the circumstances under which they
were made) not misleading, or any violation by the Company of any rule or
regulation promulgated under the Securities Act applicable to the Company in
connection with any such registration, qualification or compliance, and the
Company will reimburse each such Holder, each of its officers, directors,
shareholders and partners and each person controlling such Holder, each such
underwriter and each person who controls any such underwriter, for any legal and
any other expenses reasonably incurred in connection with investigating,
preparing or defending any such
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<PAGE>
claim, loss, damage, liability or action, provided that the Company will not be
liable in any such case to the extent that any such claim, loss, damage,
liability or expense arises out of or is based on any untrue statement or
omission or alleged untrue statement or omission, made in reliance upon and in
conformity with written information furnished to the Company by an instrument
duly executed by such Holder or underwriter and stated to be specifically for
use therein. If the Holders are represented by counsel other than counsel for
the Company, the Company shall not be obligated under this Section 1.8 to
reimburse legal fees and expenses of more than one separate counsel for the
Holders unless any Holder(s) shall have reasonably concluded that there may be
one or more legal defenses available to it which are different from or
additional to those available to the other Holders.
(b) Each Holder, severally and not jointly, will, if Registrable
Securities held by such Holder are included in the securities as to which such
registration, qualification or compliance is being effected, indemnify the
Company, each of its directors and officers and its legal counsel and
independent accountants, each underwriter, if any, of the Company's securities
covered by such a registration statement, each person who controls the Company
or such underwriter within the meaning of Section 15 of the Securities Act,
against all claims, losses, damages and liabilities (or actions in respect
thereof), including any of the foregoing incurred in settlement of any
litigation commenced or threatened, arising out of or based on any untrue
statement (or alleged untrue statement) of a material fact contained, on the
effective date thereof, in any such registration statement, and, prospectus
contained therein, or any omission (or alleged omission) to state therein a
material fact required to be stated therein or necessary to make the statements
therein (in the case of a prospectus, in the light of the circumstances under
which they were made) not misleading, and will reimburse the Company, and such
directors, officers, persons, underwriters or control persons for any legal or
any other expenses reasonably incurred in connection with investigating or
defending any such claim, loss, damage, liability or action, in each case to the
extent, but only to the extent, that such untrue statement (or alleged untrue
statement) or omission (or alleged omission) is made in such registration
statement or prospectus in reliance upon and in conformity with written
information furnished to the Company by an instrument duly executed by such
Holder and stated to be specifically for use therein.
(c) Each party entitled to indemnification under this Section 1.8
(the "Indemnified Party") shall give notice to the party required to provide
indemnification (the "Indemnifying Party") promptly after such Indemnified Party
has actual knowledge of any claim as to which indemnity may be sought, and shall
permit the Indemnifying Party to assume the defense of any such claim or any
litigation resulting therefrom, provided that counsel for the Indemnifying
Party, who shall conduct the defense of such claim or litigation, shall be
approved by the Indemnified Party (whose approval shall not unreasonably be
withheld), and the Indemnified Party may participate in such defense at such
party's expense, and provided further that the failure of any Indemnified Party
to give notice as provided herein shall not relieve the Indemnifying Party of
its obligations under this Section 1 to the extent such failure is not
prejudicial. No Indemnifying Party, in the defense of any such claim or
litigation, shall, except with the consent of each Indemnified Party, consent to
entry of any judgment or enter into any settlement which does not include as an
unconditional term thereof the giving by the claimant or plaintiff to such
Indemnified Party of a release from all liability in respect to such
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claim or litigation. Notwithstanding anything to the contrary contained in this
Section 1.8(c), the Indemnified Party shall have the right to employ its own
counsel in any action, claim, litigation, proceeding or investigation. and the
fees and expenses thereof shall be borne by the Indemnified Party, unless the
Indemnified Party shall have reasonably concluded that there may be one or more
legal defenses available to it which are different from or additional to those
available to the Indemnifying Party, in which case the Indemnifying Party shall
bear all of such Indemnified Party's legal and other fees and expenses which
arise in defense thereof. In such event, the Indemnifying Party shall not have
the right to direct the defense of such action, claim, litigation, proceeding or
investigation on behalf of the Indemnified Party.
(d) If the indemnification provided for in this Section 1.8 is
held by a court of competent jurisdiction to be unavailable to an Indemnified
Party with respect to any loss, liability, claim, damage or expense referred to
herein, then the Indemnifying Party, in lieu of Indemnifying the Indemnified
Party, shall contribute to the amount paid or payable by such Indemnified Party
with respect to such loss, liability, claim, damage or expense in the proportion
that is appropriate to reflect the relative fault of the Indemnifying Party and
the Indemnified Party in connection with the statements or omissions that
resulted in such loss, liability, claim, damage or expense, as well as any other
relevant equitable considerations. The relative fault of the Indemnifying Party
and the Indemnified Party shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of material fact or the
omission (or alleged omission) to state a material fact relates to information
supplied by the Indemnifying Party or by the Indemnified Party, and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission.
1.9 INFORMATION BY HOLDERS. The Holder or Holders of Registrable
Securities included in any registration shall furnish to the Company such
information regarding such Holder or Holders and the distribution proposed by
such Holder or Holders as the Company may request in writing and as shall be
required in connection with any registration, qualification or compliance
referred to in this Section 1.
1.10 RULE 144 REPORTING. With a view to making available the benefits
of certain rules and regulations of the Commission which may at any time permit
the sale of the Registrable Securities to the public without registration, after
such time as a public market exists for the Common Stock of the Company, the
Company shall use its best efforts to:
(a) Make and keep public information available, as those terms are
understood and defined in Rule 144, beginning 90 days after (i) the effective
date of the first registration statement filed by the Company for an offering of
its securities to the general public, (ii) the Company registers a class of
securities under Section 4 of the Exchange Act, or (iii) the Company issues an
offering circular meeting the requirements of Regulation A under the Securities
Act;
(b) File with the Commission in a timely manner all reports and
other documents required of the Company under the Securities Act and the
Exchange Act (at any time after it has become subject to such reporting
requirements);
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(c) Furnish to any Holder promptly upon request, a written
statement as to its compliance with the reporting requirements of Rule 144 (at
any time after 90 days after the effective date of the first registration
statement filed by the Company for an offering of its securities to the general
public), and of the Securities Act and the Exchange Act (at any time after it
has become subject to such reporting requirements), a copy of the most recent
annual or quarterly report of the Company, and such other reports and documents
of the Company and other information in the possession of or reasonably
obtainable by the Company as a Holder may reasonably request in availing itself
of any rule or regulation of the Commission allowing a Holder to sell any such
securities without registration.
1.11 TERMINATION OF REGISTRATION RIGHTS. The rights of each Holder
under this Section 1 shall terminate at such time after the Company's initial
IPO as such Holder's Registrable Securities may be sold immediately without
registration during any 90-day period in reliance upon Rule 144; PROVIDED,
HOWEVER, that this Section 1.11 shall not apply to any Holder who owns more than
one percent (1%) of the Company's outstanding Common Stock (determined on an
as-converted basis) until such time thereafter as the Holder owns less than one
percent (1%) of the outstanding Common Stock of the Company (determined as
aforesaid).
SECTION 2
MISCELLANEOUS
-------------
2.1 GOVERNING LAW. This Agreement shall be governed in all respects by
the laws of the State of Connecticut, as applied to agreements among Connecticut
residents entered into and to be performed entirely within Connecticut.
2.2 SUCCESSORS AND ASSIGNS; ASSIGNMENT OF RIGHTS. Subject to the terms
and conditions of the rights and benefits of an Investor hereunder may be
assigned to a transferee or assignee in connection with transfer or assignment
of any Registrable Securities owned by such Investor (A) to any person or entity
which is a majority-owned subsidiary of such Investor, or controls, is
controlled by or under common control with such Investor, (B) to any other
person or entity provided that (a) such transfer may otherwise be effected in
accordance with applicable securities laws, (b) such transferee or assignee
acquires at least one percent (1%) of the shares of Registrable Securities, (c)
such transfer otherwise complies with this Agreement, and (d) such assignee or
transferee executes a written instrument agreeing to be bound by the terms and
provisions of this Agreement, (C) to a constituent partner of an Investor or the
estate of such a constituent partner or to a liquidating trust for the benefit
of such partners, (D) to a successor trustee of an Investor in its capacity as
trustee and (E) to any ancestor, descendant or spouse of an Investor or to
trusts or other entities for the sole benefit thereof or of the Investor. Any
such transfer or assignment permitted hereby shall inure to the benefit of, and
be binding upon, the successors, assigns, heirs, executors and administrators of
the parties hereto.
2.3 ENTIRE AGREEMENT; AMENDMENT; WAIVER. This Agreement constitutes the
full and entire understanding and agreement between the parties with regard to
the subjects hereof. Neither this Agreement nor any term hereof may be amended,
waived, discharged or
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terminated, except by a written instrument signed by the Company and the holders
of at least fifty-one percent (51%) of the outstanding Registrable Securities
and any such amendment, waiver, discharge or termination shall be binding upon
all the parties hereto, but in no event shall the obligation of any Party hereto
be materially increased, except upon the written consent of such party.
2.4 NOTICES, ETC. All notices and other communications required or
permitted hereunder shall be in writing and shall be mailed by United States
first-class mail, postage prepaid, sent by facsimile or delivered personally by
hand or nationally recognized courier addressed (a) if to an Investor, as
indicated on the list of Investors attached hereto as Schedule A, or at such
other address as such Investor or permitted assignee shall have furnished to the
Company in writing and (b) if to the Company, at such address or facsimile
number as the Company shall have furnished to each Investor in writing, with a
copy (which shall not constitute notice) to Finn Dixon & Herling LLP, One
Landmark Square, Stamford, Connecticut 06901, Attention: Harold B. Finn III,
Esq., telecopier no. (203) 348-5777. All such notices and other written
communications shall be effective on the date of mailing, facsimile transfer or
delivery.
2.5 DELAYS OR OMISSIONS. No delay or omission to exercise any right,
power or remedy accruing to any Investors upon any breach or default of the
Company under this Agreement shall impair any such right, power or remedy of
such Investor nor shall it be construed to be a waiver of any such breach or
default, or an acquiescence therein, or of or in any similar breach or default
or be deemed a waiver of any other breach or default theretofore or thereafter
occurring. Any waiver, permit, consent or approval of any kind or character on
the part of any Investor of any breach or default under this Agreement or any
waiver on the part of any Investor of any provisions or conditions of this
Agreement must be made in writing and shall be effective only to the extent
specifically set forth in such writing. All remedies, either under this
Agreement or by law or otherwise afforded to any Investor, shall be cumulative
and not alternative.
2.6 RIGHTS; SEPARABILITY. Unless otherwise expressly provided herein,
the rights of an Investor hereunder are several rights, not rights jointly held
with any of the other Investors. In case any provision of the Agreement shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
2.7 TITLES AND SUBTITLES. The titles of the paragraphs and
subparagraphs of this Agreement are for convenience of reference only and are
not to be considered in construing or interpreting this Agreement.
2.8 COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be an original, but all of which together
shall constitute one instrument.
2.9 AGGREGATION OF STOCK. All shares of Registrable Securities held
or acquired by affiliated entities or persons shall be aggregated together for
the purpose of determining the availability, of any rights under this Agreement.
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2.10 THIRD PARTY BENEFICIARIES. The covenants and agreements set forth
herein are for the sole and exclusive benefit of the parties hereto and their
respective successors and assigns and such covenants and agreements shall not be
construed as conferring, and are not intended to confer, any rights or benefits
upon any other persons.
2.11 REMEDIES. The parties to this Agreement acknowledge and agree
that a breach of any of the covenants of the Company or the Investors set forth
in this Agreement may not be compensable by payment of money damages and,
therefore, that the covenants of the foregoing, parties set forth in this
Agreement may be enforced in equity by a decree requiring specific performance.
Such remedies shall be cumulative and non-exclusive and shall be in addition to
any other rights and remedies the parties may have under this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Registration
Rights Agreement effective as of the day and year first above written.
COMPANY:
OPTICARE EYE HEALTH CENTERS, INC.
By:
---------------------------------------
Name:
Title:
INVESTORS:
OXFORD HEALTH PLANS, INC.
By:
---------------------------------------
Name:
Title:
ANTHEM HEALTH PLANS, INC.
By:
---------------------------------------
Name:
Title:
15
<PAGE>
NAZEM OPTICARE PARTNERS, LP
By FRED NAZEM LLC, General Partner
By:
---------------------------------------
Name: Fred Nazem
Title: Managing Member
------------------------------------------
Christopher Kaufman
------------------------------------------
Eugene W. Huang
16
<PAGE>
SCHEDULE A
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SCHEDULE OF INVESTORS
Name and Address of Investors
- -----------------------------
Anthem Blue Cross and Blue Shield of Connecticut
370 Bassett Road
North Haven, CT 06473
Attention: Peter Thorkelson, Esq.
Oxford Health Plans, Inc.
800 Connecticut Avenue
4th Floor West
Norwalk, CT 06854
Attention: Jeffrey Boyd, Esq.
Nazem OptiCare Partners, LP
645 Madison Avenue
New York, NY 10022
Attention: Fred Nazem
Eugene W. Huang
3 High Noon Rd.
Weston, Connecticut 06883
Christopher Kaufman, Esq.
19 Blue Ridge Lane
Woodside, CA 94062
17
Exhibit 8
AGREEMENT WITH RESPECT TO
TERMINATION OF REGISTRATION RIGHTS AGREEMENT
THIS AGREEMENT is made as of ___________________, 1999 by and among
OptiCare Eye Health Centers, Inc., a Connecticut corporation (the "Company"),
and the parties listed on EXHIBIT A hereto (the "Investors").
WITNESSETH
WHEREAS, the Company and the Investors are parties to a Registration
Rights Agreement dated as of October 15, 1997 (the "Registration Rights
Agreement"); and
WHEREAS, the Company has entered into a certain Agreement and Plan of
Merger dated as of April 12, 1999 among the Company, PrimeVision Health, Inc.,
Saratoga Resources, Inc., OptiCare ShellCo Merger Corporation and PrimeVision
ShellCo Merger Corporation (the "Merger Agreement"); and
WHEREAS, the parties hereto desire to terminate the Registration Rights
Agreement effective immediately prior to the consummation of the mergers (the
"Mergers") contemplated by the Merger Agreement; and
WHEREAS, pursuant to Section 2.3 of the Registration Rights Agreement,
such agreement may be terminated upon the execution of a written instrument by
the Company and the holders of at least fifty-one percent (51%) of the
outstanding Registrable Securities (as defined in the Agreement); and
WHEREAS, the Investors hold such requisite number of Registrable
Securities;
NOW THEREFORE, in consideration of the premises and of other good and
valuable consideration, the receipt and adequacy of which is hereby
acknowledged, the parties hereto agree as follows:
1. TERMINATION OF REGISTRATION RIGHTS AGREEMENT. (a) Effective
immediately prior to the consummation of the Mergers contemplated by the Merger
Agreement, the parties hereto agree that the Registration Rights Agreement shall
terminate and be of no further force or effect whatsoever.
(b) The parties further agree that if the Merger Agreement is
terminated and the Mergers are abandoned prior to their consummation, then this
Agreement shall terminate contemporaneously upon the termination of the Merger
Agreement, and in such event the Registration Rights Agreement shall continue in
full force and effect in accordance with its terms.
<PAGE>
2. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, and each executed counterpart shall have the same force and effect
as an original instrument and as if all the parties to all of the counterparts
had signed the same instrument. Any signature page of this Agreement may be
detached from any counterpart of this Agreement without impairing the legal
effect of any signatures thereon, and may be attached to another counterpart of
this Agreement identical in form hereto but having attached to it one or more
signature pages.
IN WITNESS WHEREOF, the parties have hereunto executed this Agreement
as of the day and year first above written.
OPTICARE EYE HEALTH CENTERS, INC.
By: /s/ Steven L. Ditman
---------------------------------------
Steven L. Ditman
Its: Treasurer
INVESTORS:
OXFORD HEALTH PLANS, INC.
By: /s/ Jon S. Richardson
---------------------------------------
Name: Jon S. Richardson
Title: Ass't Secretary
ANTHEM HEALTH PLANS, INC.
By: /s/ George D. Martin
---------------------------------------
Name: George D. Martin
Title: Treasurer
NAZEM OPTICARE PARTNERS, LP
By FRED NAZEM LLC, General Partner
By: /s/ Fred Nazem
---------------------------------------
Name: Fred Nazem
Title: General Partner
- 2 -
<PAGE>
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Christopher Kaufman
/s/ Eugene W. Huang
------------------------------------------
Eugene W. Huang
- 3 -
<PAGE>
EXHIBIT A
---------
INVESTORS
Name and Address of Investors
- -----------------------------
Anthem Health Plans, Inc.
d/b/a Anthem Blue Cross and Blue Shield of Connecticut
370 Bassett Road
North Haven, CT 06473
Oxford Health Plans, Inc.
800 Connecticut Avenue
Norwalk, CT 06854
Nazem OptiCare Partners, LP
645 Madison Avenue
New York, NY 10022
Eugene W. Huang
3 High Noon Rd.
Weston, Connecticut 06883
Christopher Kaufman, Esq.
19 Blue Ridge Lane
Woodside, CA 94062
- 4 -
Exhibit 9
[LETTERHEAD OF OPTICARE EYE HEALTH SYSTEMS]
August 9, 1999
Oxford Health Plans, Inc.
800 Connecticut Ave
4th Floor West
Norwalk, CT 06854
Dear Ladies and Gentlemen:
In order to induce you to sign and deliver an Agreement with Respect to
Termination of Registration Rights Agreement (the "Termination Agreement") and
an Amendment to Warrant Agreement, which Registration Rights Agreement is dated
October 15, 1997 and was entered into among you, other parties listed on Exhibit
A thereto and the undersigned, the undersigned agrees with you that,
notwithstanding the effectiveness of the Termination Agreement, you will
continue to have the rights provided under Section 1.3 of the Registration
Rights Agreement with respect to all shares of Common Stock of Saratoga
Resources, Inc. which you may acquire upon exercise of warrants to purchase
shares of Common Stock of Saratoga Resources, Inc., issued to you in
substitution for Warrants of the undersigned as provided in the Amendment to
Warrant Agreement and the Merger Agreement as defined therein. You agree that
you will comply with the obligations of a Holder under the Registration Rights
Agreement in the event that you exercise your rights under that Section 1.3
If the foregoing accords with your understanding of our mutual
agreement, please sign and return a copy of this letter to the undersigned,
whereupon it will become a binding agreement between you and the undersigned.
Very truly yours,
OptiCare Eye Health Centers, Inc.
By /s/ Steven L. Ditman
---------------------------------
Name: Steven L. Ditman
Title: Chief Operating Officer
<PAGE>
Oxford Health Plans, Inc.
August 9, 1999
Page 2
Accepted and agreed to
as of the date first
above written
Oxford Health Plans, Inc.
By /s/ Jon S. Richardson
------------------------------
Name: Jon S. Richardson
Title: Ass't Secretary
