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.
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
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.
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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.
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The Employee Stockholder and all Affiliates of the
Employee Stockholder shall be deemed to have offered to sell all (but not less
than all) of the Saratoga Common Stock owned by them to the Company. The Company
shall have the right and option, for a period of six (6) months following the
date of such competition but within five (5) years of such termination (the
"Option Period") to purchase such Saratoga Common Stock for a Purchase Price
equal to 25% of the Fair Market Value of such Saratoga Common Stock. The
Purchase Price shall be payable in accordance with and subject to the provisions
of Section 4 below.
Upon delivery by the Company to the terminated
Employee Stockholder and his or her Affiliates of a written notice of election
to purchase, the terminated Employee Stockholder and his or her Affiliates agree
to assign and transfer to the Company all such Saratoga Common Stock against
payment of the aforesaid Purchase Price, which such amount shall be paid in
accordance with and subject to the provisions of Section 4 below.
FORFEITURE OF PROCEEDS. If the Employee Stockholder or any
Affiliates of the Employee Stockholder shall have theretofore sold or otherwise
transferred, or shall at any time during the Option Period sell or otherwise
transfer, any shares of Saratoga Common Stock, then such Employee Stockholder
and such Affiliates thereof shall, promptly upon the request of the Company (and
in any event within 30 days of such request), remit to the Company an amount
equal to the product of (i) 75% of the Fair Market Value of the Saratoga Common
Stock on the date of the sale or transfer, times (ii) the number of shares of
Saratoga Common Stock so sold or transferred. Any amounts so paid to the Company
shall be treated as damages and not as a penalty, and shall not affect or limit
the OptiCare Group's rights to obtain an injunction or additional damages under
any other agreement.
PAYMENT OF PURCHASE PRICE; TERMS AND CONDITIONS; CLOSING.
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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
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.
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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.
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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 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]
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/ Xxxx Xxxxxxxxx
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Name: Xxxx Xxxxxxxxx
Title: President
OPTICARE EYE HEALTH CENTERS, INC.
Counterpart Signature Page
to
Second Amended and Restated
Stockholders' Agreement
dated
July 30, 1999
Stockholder: OXFORD HEALTH PLANS, INC.
FOR INDIVIDUAL STOCKHOLDERS:
Signature:
---------------------------
FOR INSTITUTIONAL STOCKHOLDERS:
By: /s/ Xxx X. Xxxxxxxxxx
----------------------------------
Name: Xxx X. Xxxxxxxxxx
Title: Ass't Secretary
EXHIBIT A
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Name of Stockholder
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Anthem Health Plans, Inc.
Oxford Health Plans, Inc.
Nazem OptiCare Partners, LP
Xxxxxx X. Xxxxx
Xxxxxxxxxxx Xxxxxxx
Xxxx Xxxxx
Xxxxxxx Xxxxxx
Xxxxxx Xxxxx
R. Xxxx Xxxxxxxxx, M.D.
W. Xxxxx Xxxxxxxx, M.D.
Xxxxxx Xxxxx Xxxxxxxx Family Investment
Limited Partnership
Getnick Family Limited Partnership
Xxxxx X. Xxxxxxx
Xxxxx Xxxxxxxxx
Xxxxxxx X. Xxxxxxx, M.D.
Xxxx X. Xxxxxxxxx, M.D.
Xxxxxxx X. xxXxxxx, M.D.
Xxxxxxx X. Xxxxxxx, M.D.
Xxxxxx X. Xxxxxxx
Xxxxxxx Family Limited Partnership
Xxxxx Xxxxxxxxx
Xxxxx X. Xxxxxxxx, M.D.
Xxxxxx X. Xxxxxxx, M.D.
Xxxxx Xxxxxxxx, M.D.
Xxxxxxx X. Xxxxxx, M.D.
Xxxxx XxXxxxx, M.D.
Xxxxxxx Xxxxxxxxx, M.D.
Xxxxxxx X. Xxxxxxx, M.D.
Xxxxxxx Xxxxxxxx
Xxxx X. Xxxxxxxx
Xxxxxx X. Xxxxx, M.D.
R. Xxxxx
X. Xxxxxxx
D. Agronaov
