<PAGE> 1
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
OptiCare Health Systems, Inc.
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(Name of Issuer)
Common Stock, par value $.001 per share
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(Title of Class of Securities)
68386P 10 5
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(CUSIP Number)
Steven L. Ditman
Chief Financial Officer
OptiCare Health Systems, Inc.
87 Grandview Avenue
Waterbury, CT 06708
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(Name, Address and Telephone Number of Person Authorized to Receive Notices and
Communications)
August 13, 1999
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(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 which is the subject of this Schedule 13D, and is filing this
schedule because of Sections 240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check
the following box [ ].
*The remainder of this cover page shall be filed 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 ("Act") 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).
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SCHEDULE 13D
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CUSIP NO. 68386P 10 5
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1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Nazem OptiCare Partners, LP
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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
BENEFICIALLY 275,617
OWNED BY
EACH
REPORTING
PERSON
WITH
------------------------------------------------------------------------
8 SHARED VOTING POWER
0
------------------------------------------------------------------------
9 SOLE DISPOSITIVE POWER
275,617
------------------------------------------------------------------------
10 SHARED DISPOSITIVE POWER
0
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11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
275,617
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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)
3.0%
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14 TYPE OF REPORTING PERSON*
PN
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*SEE INSTRUCTIONS BEFORE FILLING OUT!
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SCHEDULE 13D
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CUSIP NO. 68386P 10 5
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1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Fred Nazem LLC
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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
BENEFICIALLY 0
OWNED BY
EACH
REPORTING
PERSON
/WITH
------------------------------------------------------------------------
8 SHARED VOTING POWER
275,617
------------------------------------------------------------------------
9 SOLE DISPOSITIVE POWER
0
------------------------------------------------------------------------
10 SHARED DISPOSITIVE POWER
275,617
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11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
275,617
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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)
3.0%
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TYPE OF REPORTING PERSON*
14 CO
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*SEE INSTRUCTIONS BEFORE FILLING OUT!
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SCHEDULE 13D
- ------------------------
CUSIP NO. 68386P 10 5
- ------------------------
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1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Fred F. Nazem
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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
United States
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NUMBER OF 7 SOLE VOTING POWER
SHARES
BENEFICIALLY 198,626
OWNED BY
EACH
REPORTING
PERSON
WITH
------------------------------------------------------------------------
8 SHARED VOTING POWER
275,617
------------------------------------------------------------------------
9 SOLE DISPOSITIVE POWER
198,626
------------------------------------------------------------------------
10 SHARED DISPOSITIVE POWER
275,617
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11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
474,243
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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)
5.3%%
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<PAGE> 7
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14 TYPE OF REPORTING PERSON*
IN
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*SEE INSTRUCTIONS BEFORE FILLING OUT!
<PAGE> 8
This Statement on Schedule 13D relates to shares of Common Stock, par value
$0.001 per share (the "Shares"), of OptiCare Health Systems, Inc., a Delaware
corporation formerly known as Saratoga Resources, Inc. This Statement is being
filed by the Reporting Persons (as defined herein) to report acquisitions of
Shares as a result of which the Reporting Persons may be deemed to be the
beneficial owners 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.
(i) Name and Issuer: OptiCare Health Systems, Inc., a Delaware
corporation formerly known as Saratoga Resources, Inc.
(hereinafter referred to as the "Company" or "Issuer").
(ii) Address of the Principal Executive Offices of Issuer: 87
Grandview Avenue, Waterbury, CT 06708.
(iii) Title of Class of Equity Securities to which this Statement
relates: Common Stock, $.001 par value (the "Common Stock").
Item 2. Identity and Background.
(a)-(c) This statement is being filed on behalf of Nazem OptiCare
Partners, LP, Fred Nazem LLC and Fred F. Nazem (collectively,
the "Reporting Persons").
Nazem OptiCare Partners, LP ("NOP") is a private investment
limited partnership which was formed under the laws of the State
of Delaware. Fred Nazem LLC ("Nazem LLC") is a Delaware
corporation and its principal business is to serve as the
general partner of NOP. Fred F. Nazem's ("Nazem") principal
employment is as Managing Partner of various venture capital
limited partnerships including his role as the managing member
of Nazem LLC. The business address and principal office of all
Reporting Persons is 645 Madison Avenue, New York, NY 10022.
(d)(e) During the last five years, none of the Reporting Persons (i)
have been convicted in a criminal proceeding (excluding traffic
violations or similar misdemeanors) or (ii) have 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.
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(f) Nazem is a citizen of the United States. Nazem OptiCare Partners
LP is a limited partnership organized under the laws of Delaware.
Fred Nazem LLC is a limited liability corporation incorporated
under the laws of Delaware.
Item 3. Source and Amount of Funds or Other Consideration.
This filing relates to 275,617 Shares of the issuer's Common Stock
held by NOP and 198,626 Shares issuable upon the exercise of currently
exercisable Warrants (as defined below) held by Nazem. The Shares and
the Warrants were received by NOP and Nazem 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 Agreements"). For
further information regarding the Merger Agreement, see the
Registration Statement S-4 (Registration No. 333-78501) filed by the
Issuer with the Securities 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 275,617 Shares held by NOP were issued to NOP in exchange for
23,484 shares of Class A Preferred Stock of OptiCare that NOP 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 198,626 Shares issuable upon the exercise of the Warrants were
also received by Nazem in connection with the OptiCare Merger. Prior
to the OptiCare Merger, Nazem held warrants to purchase 16,924 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, Nazem, Oxford Health Plans, Inc. ("Oxford") Anthem Health
Plans, Inc. ("Anthem"), Richard Racine ("Racine") and Philip Barak
("Barak"), as amended by an Amendment to Warrant Agreement among
OptiCare, Nazem, Oxford, Anthem, Racine and Barak (as amended, the
"Warrant Agreement"). Pursuant to the Merger Agreement, 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 by reference. The Non-Transferrable Warrant to
purchase 16,924 shares of Class B Convertible Preferred Stock of
OptiCare Eye Health Care Centers, Inc. issued to Nazem under the
Warrant Agreement is attached hereto as Exhibit 2 and is incorporated
by reference. The Amendment to the Warrant Agreement is attached
hereto as Exhibit 3 and is incorporated herein by reference.
Item 4. Purpose of Transaction.
The Shares held by NOP and the Warrant held by Nazem have been
acquired for investment purposes. Each of NOP and Nazem expects to
evaluate on an ongoing basis the Company's financial condition,
business operations and prospects, the status of any business
combination involving the Company, the market price of the Shares,
conditions
(e) Not applicable.
<PAGE> 10
in the securities markets generally, general economic and industry
conditions and other factors. Each of NOP and Nazem may at any time
and from time to time acquire additional Shares or sell such Shares.
The Voting Agreement was entered into as a condition to the merger
described above. NOP 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.
(a) NOP may be considered the beneficial owner of 275,617 shares of
Common Stock, which represents approximately 3.0% of the
Company's outstanding shares of Common Stock.
Nazem LLC is the general partner of NOP and may be considered the
beneficial owner of the 275,617 shares of Common Stock held by
NOP, which represents 3.0% of the Company's outstanding shares of
Common Stock. Nazem LLC disclaims beneficial ownership of such
shares.
Nazem may be considered the beneficial owner of (i) 198,626
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 NOP), 275,617 Shares owned by NOP. Such
Shares represent, in the aggregate, approximately 5.3% of the
Shares. 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) NOP has the sole power to vote and the sole power to dispose of
the 275,617 shares of Common Stock it beneficially owns. Nazem
LLC, as the general partner of NOP, may be deemed to share the
power to vote and dispose of the Common Stock held by NOP. Nazem
has the sole power to dispose of the Warrants held by him, and
will acquire the sole power to vote and dispose of the 198,626
Shares issuable upon exercise of the Warrants held by him. Nazem,
as the managing member of Nazem LLC, may also be deemed to share
the power to vote and dispose of the 276,617 Shares held by NOP.
(c) Prior to the merger described above, (i) NOP 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. There were no other purchases or sales of Shares by NOP,
Nazem LLC or Nazem in the past 60 days.
(d) No other person is known by any Reporting Person to have the
right to receive or the power to direct the receipt of dividends
from, or the proceeds from the sale of, any other Shares
beneficially owned by any Reporting Person.
(e) Not applicable.
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Item 6. Contracts, Arrangements, Understandings or Relationships with respect
to Securities of the Issuer.
As noted in Item 3 above, prior to the OptiCare Merger, Nazem held
16,924 shares of Class B Preferred Stock of OptiCare issuable upon the
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, Nazem now holds
198,626 Shares issuable upon exercise of Warrants under the Warrant
Agreement.
In connection with the closing of the OptiCare Merger, each of NOP and
Nazem entered into a Lock-Up Agreement with the Company in which NOP
and Nazem 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) for a period
of 180 days following the closing of the OptiCare Merger. The NOP and
Nazem Lock-Up Agreements are attached hereto as Exhibit 4 and
incorporated herein by reference.
In addition, with the OptiCare Merger, each of NOP and Nazem entered
into an Affiliate Agreement with the Issuer in which NOP and Nazem (i)
agreed not to sell, transfer or otherwise dispose of their Shares in
violation of the Securities Act of 1933; and (ii) acknowledged that,
because each of NOP and Nazem may be deemed to an "affiliate" of
OptiCare, its Shares must be held indefinitely by NOP and Nazem unless
(a) the distribution of 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
NOP and Nazem Affiliate Agreements are attached hereto as Exhibit 5
and are incorporated herein by reference.
Before the OptiCare Merger, OptiCare, NOP, Nazem, Oxford and certain
other persons who were stockholders of OptiCare before the Opticare
Merger were parties to a certain Amended and Restated Stockholder's
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 Stockholder's Agreement entered into in
connection with the OptiCare merger, the Opticare Stockholder's
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 Stockholder's Agreement is
attached hereto as exhibit 6 and is incorporated herein by reference.
<PAGE> 12
Before the OptiCare Merger, OptiCare, NOP, Nazem, Oxford 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 piggy-back 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.
To the best of NOP's knowledge, Nazem LLC's knowledge and Nazem's
knowledge, except as set forth under Item 6 and elsewhere in this
Schedule 13D, there are no other 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 other person, with respect to any securities of the
Issuer.
Item 7. Material to Be Filed as Exhibits
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-Transferrable Warrant to Purchase Class B
Convertible preferred Stock of OptiCare Eye Health
Centers, Inc., dated as of October 15, 1997, issued to
Fred Nazem.
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 Agreements, dated August 9, 1999, among
Saratoga Resources, Inc. (a/k/a OptiCare Health
Systems, Inc.) and Nazem OptiCare Partners LP and Fred
Nazem.
Exhibit 5 Affiliates Agreements, dated August 9, 1999, among
Saratoga Resources, Inc. (a/k/a OptiCare Health
Systems, Inc.) and Nazem OptiCare Partners LP and Fred
Nazem.
Exhibit 6 Second Amended and Restated Stockholder's 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.
[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: October , 1999 Nazem OptiCare Partners LP
By: Fred Nazem LLC
As General Partner
By:
------------------------------------
Name: Fred Nazem
Title: Managing Member
Fred Nazem LLC
By:
------------------------------------
Name: Fred Nazem
Title: Managing Member
---------------------------------------
Fred Nazem
<PAGE> 1
Exhibit 1
-----------------------------------------
OPTICARE EYE HEALTH CENTERS, INC.
WARRANT AGREEMENT
October 15, 1997
-----------------------------------------
<PAGE> 2
TABLE OF CONTENT
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 ARRANTIES........................................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
(i)
<PAGE> 3
SECTION 6.....................................................................6
GENERAL PROVISIONS............................................................6
6.1 GOVERNING LAW........................................................6
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> 4
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
herewith 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.
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
1
<PAGE> 5
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> 6
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").
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<PAGE> 7
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.
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<PAGE> 8
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> 9
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> 10
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 and there shall be no
liability, except for any breach of this Agreement prior to such termination, of
any party to another party.
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<PAGE> 11
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.
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> 12
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
------
61,022
9
<PAGE> 1
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, FRED NAZEM("Holder") is
entitled, subject to the terms set forth below, to purchase from OPTICARE EYE
HEALTH CENTERS, INC., a Connecticut corporation (the "Company"), Sixteen
Thousand Nine Hundred Twenty-Four (16,924) 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.
(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
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<PAGE> 2
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.
4. No Fractional Shares Or Scrip. No fractional shares or scrip
representing fractional shares shall be issued upon the exercise of this
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<PAGE> 3
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
3
<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 the number of
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<PAGE> 5
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.
5
<PAGE> 6
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 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.
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
------------------------------
6
<PAGE> 7
HOLDER:
(individual)
/s/ Fred Nazem
- -----------------------------
Name: Fred Nazem
(other)
NAME:
By:
--------------------------
7
<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)
8
<PAGE> 1
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:
"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
<PAGE> 2
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
/s/ Fred Nazem
----------------------------------
Fred Nazem
----------------------------------
Richard Racine
/s/ Philip Barak
----------------------------------
Philip Barak
<PAGE> 1
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
<PAGE> 2
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 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: NAZEM OPTICARE PARTNERS, LP
By: FRED NAZEM LLC
Its General Partner
By: /s/ Fred F. Nazem
Title: Managing Member
<PAGE> 3
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
<PAGE> 4
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 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: /s/ Fred Nazem
<PAGE> 1
Exhibit 5
AFFILIATE AGREEMENT
July __, 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.
<PAGE> 2
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 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,
Date:_____________ Nazem OptiCarePartners, LP
By: Fred Nazem LLC
Its General Partner
By: /s/ Fred Nazem
Its Managing Member
<PAGE> 3
AFFILIATE AGREEMENT
July __, 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.
<PAGE> 4
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 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,
/s/ Fred Nazem
<PAGE> 1
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.
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.
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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.
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
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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.
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
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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:
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
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<PAGE> 5
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.
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 all such further acts and things, as may be necessary or
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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]
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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
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OPTICARE EYE HEALTH CENTERS, INC.
Counterpart Signature Page
to
Second Amended and Restated
Stockholders' Agreement
dated
July 30, 1999
Stockholder: NAZEM OPTICARE PARTNERS, LP
FOR INDIVIDUAL STOCKHOLDERS:
Signature:
-------------------------------
FOR INSTITUTIONAL STOCKHOLDERS:
By: /s/ Nazem OptiCare Partners, LP
- ----------------------------------
Name: By: Fred F. Nazem
Title: Managing partner
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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
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