SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
SCHEDULE l3D
Under the Securities Exchange Act of 1934
(Amendment No. __)*
OPTICARE HEALTH SYSTEMS, INC.
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(Name of Issuer)
Common Stock, $.001 par value
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(Title of Class of Securities)
68386P105
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(CUSIP Number)
with a copy to:
Ms. Stephney Costello George J. Mazin, Esq.
Palisade Capital Management, L.L.C. Lowenstein Sandler PC
One Bridge Plaza 65 Livingston Avenue
Fort Lee, New Jersey 07024 Roseland, New Jersey 07068
(201) 585-7733 (973) 597-2418
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(Name, Address and Telephone Number of Persons Authorized to Receive Notices and
Communications)
May 24, 2000
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(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule l3G 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. |X|
NOTE: Schedules filed in paper format shall include a signed original and five
copies of the schedule, including all exhibits. See Section 240.13d-7(b) for
other parties to whom copies are to be sent.
*The remainder of this cover page shall be filled out for a reporting person's
initial filing on this form with respect to the subject class of securities, and
for any subsequent amendment containing information which would alter
disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be deemed
to be "filed" for the purpose of Section 18 of the Securities Exchange Act of
1934 ("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).
<PAGE>
CUSIP No. 68386P105
1) Names of Reporting Persons/I.R.S. Identification Nos. of Above Persons
(entities only):
Palisade Capital Management, L.L.C./I.R.S. Identification No. 22-3330049
________________________________________________________________________________
2) Check the Appropriate Box if a Member of a Group (See Instructions):
(a) (b) [X]
________________________________________________________________________________
3) SEC Use Only
________________________________________________________________________________
4) Source of Funds (See Instructions): OO
________________________________________________________________________________
5) Check if Disclosure of Legal Proceedings is Required Pursuant to Items 2(d)
or 2(e):
Not Applicable
________________________________________________________________________________
6) Citizenship or Place of Organization: New Jersey
________________________________________________________________________________
Number of 7) Sole Voting Power: 2,000,000*
Shares Beneficially 8) Shared Voting Power:
Owned by
Each Reporting 9) Sole Dispositive Power: 2,000,000*
Person With 10) Shared Dispositive Power:
________________________________________________________________________________
11) Aggregate Amount Beneficially Owned by Each Reporting Person: 2,000,000*
________________________________________________________________________________
12) Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See
Instructions):
Not Applicable
________________________________________________________________________________
13) Percent of Class Represented by Amount in Row (11): 15.9%*
________________________________________________________________________________
14) Type of Reporting Person (See Instructions): IA
________________________________________________________________________________
* Palisade Capital Management, L.L.C. ("Palisade"), a New Jersey limited
liability company, is a registered investment advisor that has discretionary
authority over the accounts of its clients. Palisade is the beneficial owner of
2,000,000 shares or 15.9 % of Opticare Health Systems, Inc. common stock, par
value $.001 per share (the "Common Stock"), on behalf of its clients. All of
such shares of Common Stock are held in the account of Palisade Concentrated
Equity Partnership, L.P., a private investment limited partnership formed by
affiliates of Palisade under the laws of the State of Delaware.
<PAGE>
CUSIP No. 68386P105
1) Names of Reporting Persons/I.R.S. Identification Nos. of Above Persons
(entities only):
Palisade Concentrated Equity Partnership, L.P./I.R.S.
Identification No. 22-3699993
________________________________________________________________________________
2) Check the Appropriate Box if a Member of a Group (See Instructions):
(a) (b) [X]
________________________________________________________________________________
3) SEC Use Only
________________________________________________________________________________
4) Source of Funds (See Instructions): OO
________________________________________________________________________________
5) Check if Disclosure of Legal Proceedings is Required Pursuant to Items 2(d)
or 2(e):
Not Applicable
________________________________________________________________________________
6) Citizenship or Place of Organization: Delaware
________________________________________________________________________________
Number of 7) Sole Voting Power: *
Shares Beneficially 8) Shared Voting Power:
Owned by
Each Reporting 9) Sole Dispositive Power: *
Person With 10) Shared Dispositive Power:
________________________________________________________________________________
11) Aggregate Amount Beneficially Owned by Each Reporting Person: *
________________________________________________________________________________
12) Check if the Aggregate Amount in Row (11) Excludes Certain Shares
(See Instructions):
Not Applicable
________________________________________________________________________________
13) Percent of Class Represented by Amount in Row (11): *
________________________________________________________________________________
14) Type of Reporting Person (See Instructions): PN
________________________________________________________________________________
* 2,000,000 shares or 15.9% of Opticare Health Systems, Inc. (the "Company")
common stock, par value $.001 per share (the "Common Stock"), beneficially owned
by Palisade Capital Management L.L.C. ("Palisade"), a registered investment
advisor, are held in the account of Palisade Concentrated Equity Partnership,
L.P., a private investment limited partnership formed by affiliates of Palisade
under the laws of the State of Delaware.
<PAGE>
CUSIP No. 68386P105
1) Names of Reporting Persons/I.R.S. Identification Nos. of Above Persons
(entities only):
Palisade Concentrated Holdings, L.L.C./I.R.S. Identification No. 22-3699991
________________________________________________________________________________
2) Check the Appropriate Box if a Member of a Group (See Instructions):
(a) (b) [X]
________________________________________________________________________________
3) SEC Use Only
________________________________________________________________________________
4) Source of Funds (See Instructions): OO
________________________________________________________________________________
5) Check if Disclosure of Legal Proceedings is Required Pursuant to Items 2(d)
or 2(e):
Not Applicable
________________________________________________________________________________
6) Citizenship or Place of Organization: Delaware
________________________________________________________________________________
Number of 7) Sole Voting Power: *
Shares Beneficially 8) Shared Voting Power:
Owned by
Each Reporting 9) Sole Dispositive Power: *
Person With 10) Shared Dispositive Power:
________________________________________________________________________________
11) Aggregate Amount Beneficially Owned by Each Reporting Person: *
________________________________________________________________________________
12) Check if the Aggregate Amount in Row (11) Excludes Certain Shares
(See Instructions): Not Applicable
________________________________________________________________________________
13) Percent of Class Represented by Amount in Row (11): *
________________________________________________________________________________
14) Type of Reporting Person (See Instructions): OO
________________________________________________________________________________
* 2,000,000 shares or 15.9% of Opticare Health Systems, Inc. common stock, par
value $.001 per share, beneficially owned by Palisade Capital Management L.L.C.
("Palisade"), a registered investment advisor, are held in the account of
Palisade Concentrated Equity Partnership, L.P. (the "Partnership"), a private
investment limited partnership formed by affiliates of Palisade under the laws
of the State of Delaware. Palisade Concentrated Holdings, L.L.C. is the general
partner of the Partnership.
<PAGE>
Palisade Capital Management, L.L.C. ("Palisade") hereby amends its Schedule
13G, filed with the Securities and Exchange Commission on February 18, 2000,
relating to the shares of Opticare Health Systems, Inc. (the "Company") common
stock, $.001 par value (the "Common Stock"), as follows:
Item 1. Security and Issuer.
This statement relates to the Common Stock of the Company, whose principal
executive offices are located at 87 Grandview Avenue, Waterbury, Connecticut
06708.
Item 2. Identity and Background.
This statement is being filed on behalf of Palisade, Palisade Concentrated
Equity Partnership, L.P. and Palisade Concentrated Holdings, L.L.C.
(collectively, the "Reporting Persons"). Palisade, a New Jersey limited
liability company, is an investment advisor registered under the Investment
Advisers Act of 1940, as amended. Palisade Concentrated Equity Partnership, L.P.
(the "Partnership") is a private investment limited partnership formed by
affiliates of Palisade under the laws of the State of Delaware. Palisade
Concentrated Holdings, L.L.C. (the "General Partner") is a Delaware limited
liability company whose principal business is to serve as the general partner of
the Partnership. Pursuant to an investment advisors agreement, dated March 31,
1999, by and between the General Partner and Palisade, Palisade has total
discretionary authority with regard to the investments of the Partnership. The
business address of all Reporting Persons is One Bridge Plaza, Fort Lee, New
Jersey 07024.
During the past five years, none of the Reporting Persons has ever been:
(i) convicted in any criminal proceeding, or (ii) a party to any civil
proceeding commenced before a judicial or administrative body of competent
jurisdiction and as a result of such proceeding was or is now 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.
Item 3. Source and Amount of Funds or Other Consideration.
Pursuant to a subscription agreement, dated January 19, 2000 (the
"Subscription Agreement"), by and between the Company and the Partnership, the
Partnership purchased 2,000,000 shares of the Company's Common Stock for an
aggregate purchase price of $7,000,000. The Partnership executed a promissory
note, dated January 19, 2000 (the "Note"), whereby it agreed to pay to the
Company an aggregate amount of $6,998,000 on or before February 9, 2000 or, if
earlier, on the date when the Partnership received capital contributions from
its limited partners in respect of the Partnership's investment in the Company.
The Note was paid in full on February 3, 2000. All funds used to pay the entire
principal amount of the Note came directly from the assets of the Partnership.
Item 4. Purpose of Transaction.
The shares of Common Stock held by the Partnership have been acquired for
investment purposes. By unanimous written consent, dated January 18, 2000, the
board of directors of the Company increased the number of directors which
constitute the whole board and approved a provision of the Subscription
Agreement which calls for the Partnership to have a seat on the board of
directors of the Company. In addition, under the Subscription Agreement, the
Partnership has the right to inspect the books, records and premises of the
Company; to receive, at least quarterly, financial statements, operating
reports, budgets and other financial reports which describe the Company's
financial performance, material developments or events and significant
proposals; and to advise and consult with members of the Company's management.
On May 24, 2000, Steven E. Berman, a member of each of Palisade and the
General Partner, attended a meeting of the board of directors of the Company as
an observer. Although the Partnership does not intend to influence the control
of the Company, it now expects to exercise the management rights as described
herein in order to monitor its investment in the Company.
Item 5. Interest in Securities of the Issuer.
Based upon information set forth in the Company's Quarterly Report on Form
10-Q for the quarterly period ended March 31, 2000, as of May 1, 2000 there were
outstanding 12,578,766 shares of the Common Stock. As of May 24, 2000, 2,000,000
shares (15.9%) of the Common Stock are held by the Partnership in an account
over which Palisade has investment discretion. Palisade possesses sole power to
vote and direct the disposition of all shares of the Common Stock beneficially
owned by it. Pursuant to Regulation Section 240.13d-3, Palisade may be deemed to
beneficially own 2,000,000 shares of the Common Stock, or 15.9%, of the shares
of Common Stock deemed issued and outstanding.
<PAGE>
During the past sixty days, there were no transactions in shares of the
Common Stock, or any securities directly or indirectly convertible into or
exchangeable for shares of the Common Stock, by the Reporting Persons or any
person or entity controlled by them or any person or entity for which they
possesses voting or investment control over the securities thereof.
Item 6. Contracts, Arrangements, Understandings or Relationships With Respect to
Securities of the Issuer.
Except as set forth herein, no contracts, arrangements, understandings or
relationships exist with respect to any securities of the Company as between
Palisade and any person or entity.
Item 7. Material to be Filed as Exhibits.
(1) Promissory Note, dated January 19, 2000, by and between the Company and
the Partnership;
(2) Unanimous Written Consent of the Board of Directors of the Company
dated January 18, 2000; and
(3) Subscription Agreement, dated January 19, 2000, by and between the
Company and the Partnership.
<PAGE>
Signature
After reasonable inquiry and to the best of the undersigned's knowledge and
belief, the undersigned hereby certifies that the information set forth in this
statement is true, complete and correct.
June 5, 2000
/s/ Steven E. Berman
_____________________________________
Steven E. Berman, in his capacity as
a member of each of Palisade Capital
Management, L.L.C. and Palisade
Concentrated Holdings, L.L.C., the
general partner of Palisade
Concentrated Equity Partnership, L.P.
Attention: Intentional misstatements or omissions of fact constitute Federal
criminal violations (See 18 U.S.C. 1001).
<PAGE>
EXHIBIT INDEX
Exhibit No. Exhibit Name
(1) Promissory Note, dated January 19, 2000, by and between the
Company and the Partnership
(2) Unanimous Written Consent of the Board of Directors of the
Company, dated January 18, 2000
(3) Subscription Agreement, dated January 19, 2000, by and between
the Company and the Partnership
<PAGE>
EXHIBIT (1)
PROMISSORY NOTE
January 19, 2000 U.S. $6,998,000
New York, New York
PALISADE CONCENTRATED EQUITY PARTNERSHIP, L.P.
PROMISSORY NOTE
THIS NOTE is a duly authorized promissory note of Palisade Concentrated
Equity Partnership, L.P., a limited partn ership duly organized and existing
under the laws of the State of Delaware (the "Borrower"), with an address at One
Bridge Plaza, Fort Lee, New Jersey 07024 designated as its Promissory Note in
the aggregate principal amount of Six Million Nine Hundred Ninety-Eight Thousand
Dollars (U.S. $6,998,000) (the "Note").
FOR VALUE RECEIVED, the Borrower promises to pay to OptiCare Health
Systems, Inc., the registered holder hereof, and its successors and assigns (the
"Holder"), the principal sum of Six Million Nine Hundred Ninety-Eight Thousand
Dollars (U.S. $6,998,000) on February 9, 2000 or, if earlier, on the date that
Borrower has received capital contributions from its limited partners in respect
of Borrower's investment in the Holder (the "Maturity Date"). The principal of
this Note is payable in such coin or currency of the United States of America as
at the time of payment is legal tender for payment of public and private debts,
at the address designated in writing by the Holder hereof from time to time. The
Borrower shall pay the entire outstanding principal amount hereof on the
Maturity Date.
1. Absolute Obligation. No provision of this Note shall alter or impair the
obligation of the Borrower, which is absolute and unconditional, to pay the
principal of this Note at the time and place herein prescribed.
2. Prepayment. The Borrower may prepay, at any time and from time to time,
all or a portion of the principal amount of this Note without penalty or
prepayment premium.
3. Waiver of Rights. The Borrower hereby expressly waives demand and
presentment for payment, notice of nonpayment, protest, notice of protest,
notice of dishonor, notice of acceleration or intent to accelerate, bringing of
suit and diligence in taking any action to collect amounts called for hereunder
except as otherwise set forth herein and shall be directly and primarily liable
for the payment of all sums owing and to be owing hereon, regardless of and
without any notice, diligence, act or omission as or with respect to the
collection of any amount called for hereunder.
4. Default. If one or more of the following described "Events of Default"
shall occur:
(a) The Borrower shall default in the payment, when due, of principal
on this Note; or
<PAGE>
(b) The Borrower shall (1) become insolvent; (2) admit in writing its
inability to pay its debts generally as they mature; (3) make an
assignment for the benefit of creditors or commence proceedings
for its dissolution; or (4) apply for or consent to the
appointment of a trustee, liquidator or receiver for all of its
or for a substantial part of its property or business; or
(c) Bankruptcy, reorganization, insolvency or liquidation proceedings
or other proceedings for relief under any bankruptcy law or any
law for the relief of debtors shall be instituted by or against
the Borrower and, if instituted against the Borrower, shall not
be dismissed within ninety (90) days after such institution, or
the Borrower shall by any action or answer approve of, consent
to, or acquiesce in any such proceedings or admit the material
allegations of, or default in answering a petition filed in any
such proceeding;
then, or any time thereafter, and as long as such Event of Default is continuing
for three (3) business days after written notice of such Event of Default has
been delivered, (except for the events described in Sections 4(b) and (c) for
which no notice shall be given and no grace period shall be provided) or unless
such Event of Default shall have been waived in writing by the Holder (which
waiver shall not be deemed to be a waiver of any subsequent default) at the
option of the Holder and in the Holder's sole discretion, the Holder may
consider this Note immediately due and payable, without presentment, demand,
protest or notice of any kind, all of which are hereby expressly waived,
anything herein or in any note or other instruments contained to the contrary
notwithstanding, and the Holder may immediately, and without expiration of any
period of grace other than as contained in this Section, enforce any and all of
the Holder's rights and remedies provided herein or any other rights or remedies
afforded by law.
5. Collection Costs. In the event Holder or any holder hereof shall refer
this Note to an attorney for collection, the Borrower agrees to pay, in addition
to unpaid principal, all the costs and expenses incurred in attempting or
effecting collection hereunder, including attorneys' fees and disbursements,
whether or not suit is instituted.
6. Severability. In case any provision of this Note is held by a court of
competent jurisdiction to be excessive in scope or otherwise invalid or
unenforceable, such provision shall be adjusted rather than voided, if possible,
so that it is enforceable to the maximum extent possible, and the validity and
enforceability of the remaining provisions of this Note will not in any way be
affected or impaired thereby.
7. Entire Agreement. This Note and the agreements referred to in this Note
constitute the full and entire understanding and agreement between the Borrower
and the Holder with respect to the subject hereof. Neither this Note nor any
term hereof may be amended, waived, discharged or terminated other than by a
written instrument signed by the Borrower and the Holder.
<PAGE>
8. Governing Law. This Note shall be governed by and construed in
accordance with the laws of the State of New York, without giving effect to its
conflicts of laws rules. The Borrower consents to the exclusive jurisdiction of
the Federal and State courts sitting in New York County, New York, and
irrevocably waives any defense that such courts or venue would constitute an
inconvenient forum. The Borrower further consents that service of process may be
served upon it by certified mail, return receipt requested, addressed to the
Borrower at its address set forth above. Nothing contained herein shall prevent
the Holder from commencing suit in any other jurisdiction in which such suit may
be commenced.
IN WITNESS WHEREOF, the Borrower has caused this instrument to be duly
executed by an officer thereunto duly authorized.
PALISADE CONCENTRATED EQUITY PARTNERSHIP, L.P.
By: Palisade Concentrated Holdings, L.L.C.,
General Partner
By: /s/ Mark S. Hoffman
Name: Mark S. Hoffman
Title: Member
<PAGE>
EXHIBIT 2
UNAMIMOUS WRITTEN CONSENT
OF
THE BOARD OF DIRECTORS
OF
OPTICARE HEALTH SYSTEMS, INC.
The undersigned, being all of the members of the Board of Directors of
OPTICARE HEALTH SYSTEMS, INC., a Delaware corporation (the "Company"), acting in
lieu of a meeting pursuant to Section 141 of the General Corporation Law of the
State of Delaware, do hereby consent to and adopt as the actions of the Board of
Directors of the Corporation, the following resolutions:
RESOLVED, that pursuant to the authority granted to this Board under Section 3.2
of the Company's By-Laws, the number of directors which shall constitute the
whole Board of the Company is hereby increased by one (1), to be comprised of
eight (8) directors; and be it further
RESOLVED, that in order to fill the vacancy created by the increase in the
Board, a nominee of Palisade Concentrated Equity, L.P. shall be elected to serve
as a member of the Board of Directors of the Company, which member, as with
other members of the Company's Board of Directors shall have the right to
consult with and advise officers of the Company, to hold such office and to
serve for so long as Palisade Concentrated Equity, L.P. is the beneficial holder
of the shares of the Company's Common Stock; and
RESOLVED, that in furtherance of the above resolutions, the proper officers of
the Company be, and each of them hereby is, authorized and directed to do and to
perform all such acts and to execute and deliver such further instruments,
certificates and documents, in the name and on behalf of the Company and under
its corporate seal or otherwise, and to take, or cause to be taken, all other
actions as such officers may deem necessary, desirable or appropriate, as
evidenced by their taking such action or the execution and evidenced by their
taking such action or the execution and delivery of such instrument or document,
to carry out and consummate the intent of the foregoing resolutions; and be it
further
RESOLVED, that any action heretofore taken and all other documentation
heretofore delivered by any officer of the Company in furtherance of the
foregoing resolutions be, and such actions hereby are, authorized, approved and
ratified in all respects.
<PAGE>
IN WITNESS WHEREOF, the undersigned have executed this Unanimous Written Consent
as of the 18th day of January, 2000.
/s/ Dean J. Yimoyines
Dean J. Yimoyines
/s/ Steven L. Ditman
Steven L. Ditman
/s/ Allan L.M. Barker
Allan L.M. Barker
/s/ John F. Croweak
John F. Croweak
/s/ David A. Durfee, J.D.
David A. Durfee, J.D.
/s/ Martin Franklin
Martin Franklin
/s/ Ian G.H. Ashken
Ian G.H. Ashken
<PAGE>
EXHIBIT (3)
SUBSCRIPTION AGREEMENT
OptiCare Health Systems, Inc.
87 Grandview Avenue
Waterbury, Connecticut 06708
1. SUBSCRIPTION.
The undersigned hereby tenders its subscription for and offers to acquire
the number of shares of common stock, par value $.001 per share (the "Shares"),
of OptiCare Health Systems, Inc., a Delaware corporation (the "Company"), set
forth on the signature page of this Subscription Agreement. The Company is
offering for sale an aggregate of up to a maximum of 4,000,000 Shares with the
rights, privileges and restrictions relating thereto as contained in the
certificate of incorporation of the Company and as described in the Company's
Registration Statement on Form S-1, Registration No. 333-93043 (the
"Registration Statement") under the caption "Description of Capital Stock." The
price per Share is $3.50, the closing price of the Shares on the American Stock
Exchange on the date that the Registration Statement is declared effective by
the Securities and Exchange Commission (the "Commission").
2. AMOUNT.
The amount of the undersigned's subscription is set forth on the signature
page of this Subscription Agreement, and the undersigned shall wire transfer an
amount equal to the par value of the Shares ($.001) multiplied by the number of
Shares subscribed for hereunder to an account designated by the Company on the
effective date of the Registration Statement, and shall also deliver to the
Company on such effective date a full recourse promissory note of the
undersigned, substantially in the form of Exhibit A attached hereto, for the
balance of the purchase price of the Shares subscribed for by the undersigned
hereunder.
3. PROCEDURE FOR ACCEPTANCE.
Two copies of this Subscription Agreement will be executed by the
undersigned and returned to the Company. The undersigned understands that if its
subscription is accepted, the Company will return to it one executed copy of
this Subscription Agreement with the acceptance form filled out below.
4. TERMINATION DATE; RETURN OF FUNDS UPON REJECTION.
The offering being made by the Company will terminate on the earlier to
occur of (i) the date on which the allotted Shares are sold or (ii) February 15,
2000.
The closing of the offering is not subject to the receipt by the Company of
subscriptions for any minimum number of Shares. The Company shall have the right
to accept or reject this subscription, in whole or in part, for any reason or no
reason and this subscription shall be deemed to be accepted by the Company only
when a copy of the signature page of this Subscription Agreement is executed by
the Company. Subscriptions need not be accepted in the order received by the
Company.
<PAGE>
5. REPRESENTATIONS AND WARRANTIES.
The undersigned hereby warrants and represents to the Company that the
following statements are true:
(a) The undersigned has received a copy of the Registration Statement, and
has carefully reviewed it in its entirety, including, but not limited to, the
contents thereof under the caption entitled "Risk Factors," prior to making an
investment in the Company.
(b) The undersigned has received no representations or warranties from the
Company or its agents, affiliates or representatives other than those contained
in this Subscription Agreement and the Registration Statement, and, in making
its investment decision, it is relying solely on the information contained
herein, in the Registration Statement and investigations made by it. The
undersigned has not relied on any other documentation, including, but not
limited to, any documentation prepared in connection with any previous offerings
by the Company, in connection with making an investment in the Shares as
contemplated hereby.
(c) The undersigned, if a natural person, is presently a bona fide resident
of the jurisdiction included in the address set forth on the signature page, and
the address and Social Security number or federal tax identification number set
forth below are his true and correct residence and Social Security number or
federal tax identification number. The undersigned has no present intention of
becoming a resident of any other state or jurisdiction. The undersigned, if a
corporation, limited liability company, partnership, trust or other form of
business, represents and warrants that its principal place of business is within
the jurisdiction set forth on the signature page and that it is duly qualified
to do business in such jurisdiction.
(d) The undersigned has full right, power and authority to execute and
deliver this Agreement and to perform each of its obligations hereunder. This
Agreement has been duly executed and delivered by or on behalf of the
undersigned and constitutes the valid and binding obligation of the undersigned
in accordance with its terms. The undersigned is not subject to any restriction
or agreement which prohibits or would be violated by the execution and delivery
hereof or the consummation of the transactions contemplated herein or pursuant
to which the consent of any third person, firm or corporation is required in
order to give effect to the transactions contemplated herein.
(e) The undersigned understands that the foregoing warranties and
representations are made as an inducement to the Company to sell Shares to the
undersigned.
<PAGE>
6. COVENANTS OF PURCHASER.
The undersigned hereby agrees and covenants with the Company as follows:
(a) The undersigned will not transfer or assign this subscription.
(b) Unless otherwise provided by any federal or state securities law, the
undersigned is not entitled to cancel, terminate or revoke this subscription, or
any agreements of the undersigned in connection herewith and such subscription
and agreements shall survive the death or disability of the undersigned.
(c) The undersigned agrees to advise the Company prior to the Company's
acceptance of this subscription if any of the representations, warranties and
agreements contained herein are no longer true.
(d) The undersigned acknowledges that it understands the meaning and legal
consequences of the representations and warranties in Section 5 hereof, and that
the Company has relied upon such representations and warranties, and it hereby
agrees to indemnify and hold harmless the Company, and all officers, directors,
control persons, agents and representatives thereof, from and against any and
all claims, demands, losses, damages, expenses or liabilities (including
reasonable attorneys' fees) due to or arising out of a breach of any such
representations or warranties or any breach of or any failure to fulfill any
covenants or agreements set forth herein. Notwithstanding the foregoing,
however, no representation, warranty, acknowledgment, covenant or agreement made
herein by the undersigned shall in any manner be deemed to constitute a waiver
of any rights granted to it under federal or state securities laws.
7. SURVIVAL OF REPRESENTATIONS, WARRANTIES AND AGREEMENTS.
The representations, warranties, covenants and agreements contained herein
shall survive the delivery of, and payment for, the Shares.
8. MISCELLANEOUS.
(a) Modification. This Subscription Agreement sets forth the entire
understanding of the parties with respect to the subject matter hereof,
supersedes all existing agreements among them concerning such subject matter,
and may be modified only by a written instrument duly executed by each party.
(b) Waiver. Any waiver by any party of a breach of any provision of this
Subscription Agreement shall not operate as or be construed to be a waiver of
any other breach of such provision or of any breach of any other provision of
this Subscription Agreement. The failure of a party to insist upon strict
adherence to any term of this Subscription Agreement on one or more occasions
shall not be considered a waiver or deprive that party of the right thereafter
to insist upon strict adherence to that term or any other term of this
Subscription Agreement. Any waiver must be in writing.
<PAGE>
(c) Binding Effect. The provisions of this Subscription Agreement shall be
binding upon and inure to the benefit of the parties hereto and the respective
successors, assigns, heirs, and personal representatives.
(d) Headings. The headings in this Subscription Agreement are solely for
convenience of reference and shall be given no effect in the construction or
interpretation of this Subscription Agreement.
(e) Pronouns. Any masculine personal pronoun shall be considered to mean
the corresponding feminine or neuter personal pronoun, as the context requires.
(f) Counterparts; Governing Law. This Subscription Agreement may be
executed in any number of counterparts, each of which shall be deemed an
original, but all of such together shall constitute one and the same instrument.
It shall be governed by and construed in accordance with the laws of the State
of New York, without giving effect to its conflict of laws rules. SIGNATURE PAGE
FOR SUBSCRIPTION AGREEMENT
The undersigned, hereby subscribes for 2,000,000 Shares for an aggregate
purchase price of $7,000,000.
The undersigned represents that he has read this Subscription Agreement.
IN WITNESS WHEREOF, the undersigned has executed this Subscription
Agreement as of the 19th day of January, 2000.
Telephone No. 201.585.7733 SUBSCRIBER: Palisade Concentrated Equity
Partnership, L.P.
One Bridge Plaza By: Palisade Concentrated Holdings, L.L.C.,
Fort Lee, NJ 07024 General Partner
22-3699993
By: /s/ Mark S. Hoffman
Name: Mark S. Hoffman
Title: Member
Subscription Accepted For _____ Shares
OPTICARE HEALTH SYSTEMS, INC.
By:_____________________________ ___________
Name: Date
Title:
