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EXHIBIT 2.1
AGREEMENT
BY AND AMONG
VISIONAMERICA INCORPORATED
AND
ICON LASER EYE CENTERS, INC.
DATED FEBRUARY 24, 2000
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AGREEMENT
This Agreement made and entered into this 24th day of February, 2000,
by and between VISIONAMERICA INCORPORATED, a corporation organized and existing
under the laws of the State of Delaware with its principal offices in Memphis,
Tennessee ("VisionAmerica"), and ICON LASER EYE CENTERS, INC., a corporation
organized and existing under the laws of Ontario, with its principal offices in
Toronto, Canada ("ICON").
RECITALS
WHEREAS, the parties have previously entered into a Joint Venture
Agreement dated February 14, 2000 (the "Prior Agreement");
WHEREAS, the parties have not consummated several of the material
elements anticipated by the Prior Agreement and wish to terminate the Prior
Agreement;
WHEREAS, ICON desires to purchase and VisionAmerica desires to sell
1,000,000 shares of common stock of VisionAmerica, subject to the terms and
conditions contained herein; and
WHEREAS, the parties intend by this Agreement to set forth in writing
their full agreement relating to these matters.
NOW THEREFORE, in consideration of the mutual covenants and agreements
set forth herein and other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged by the parties, it is agreed as
follows:
1. Termination of Prior Agreement. The parties have not consummated
several material elements of the Prior Agreement, and the parties believe it is
in their best interest to terminate the Prior Agreement. The Prior Agreement is
hereby terminated. The parties acknowledge and agree that the Prior Agreement is
void and of no further force or effect, and that neither party has any
obligation to the other party in regard to the Prior Agreement or any claims for
damages, losses or liabilities in connection therewith.
2. Confidentiality Agreement. On January 12, 2000, the parties entered
into a Confidentiality Agreement, which is attached hereto and incorporated
herein as Exhibit A (the "Confidentiality Agreement"). The parties hereby ratify
and confirm the Confidentiality Agreement.
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3. Sale of Stock. VisionAmerica hereby sells to ICON, and ICON hereby
purchases from VisionAmerica one million (1,000,000) shares of $.06 par value
common stock of VisionAmerica (the "Common Stock"), subject to the terms and
conditions contained herein. The Common Stock is being purchased at $4.00 per
share, for an aggregate total of $4,000,000 in U.S. Dollars. The parties
acknowledge that the Common Stock has not been registered pursuant to any
securities laws, including but not limited to those of Canada, the United
States, or any state or province thereof, and that the Common Stock constitutes
restricted securities as more fully described in Paragraph 7 hereof. Payment of
the purchase price shall be in cash by wire transfer within 24 hours after
execution and proper corporate approval of this Agreement and obtaining the
consent provided for in Paragraph 9 hereof. After such payment, VisionAmerica
shall promptly cause to be delivered to ICON a certificate or certificates
representing the Common Stock, which stock certificates VisionAmerica has
previously delivered to Thomson Kernaghan, which firm is holding such stock
certificates, subject to the instructions of VisionAmerica. ICON acknowledges
that in purchasing such Common Stock ICON is relying upon the representations
and warranties of VisionAmerica contained herein. VisionAmerica acknowledges
that in issuing and selling such Common Stock, and in authorizing the issuance
of the Warrant described in Paragraph 8 herein, VisionAmerica is relying upon
the representations and warranties of ICON contained herein.
4. Registration Rights. Upon the written request of ICON within ten
(10) days after May 1, 2000, or sooner if it becomes clear to ICON that the
parties cannot proceed with a business combination, VisionAmerica agrees in good
faith to use its reasonable best efforts to cause the registration and
effectiveness by June 30, 2000, of the 1,000,000 shares of Common Stock with the
United States Securities and Exchange Commission (the "SEC"), pursuant to a Form
S-1 Registration Statement in accordance with the requirements of the Securities
Act of 1933. At its sole option VisionAmerica may, by a cash payment of $30,000
to ICON, extend for 30 days the deadline for registration contained in this
paragraph (the "Extended Date"). Such registration shall be at the cost and
expense of VisionAmerica, except that any underwriting fees or discounts, and
any fees of ICON's counsel shall be the obligations of ICON. VisionAmerica
agrees to provide to ICON and its counsel copies of any such registration
filings and copies of any communications made to or received from the SEC. In
addition to such federal registration, the parties shall jointly agree upon any
blue sky registration that may be necessary or appropriate in connection with
such proposed resales by ICON, provided that in any event such blue sky costs
and expenses will not exceed $7,500. In the event that the parties have executed
a definitive agreement in connection with a business combination by April 30,
2000, and are proceeding with such transaction, then the obligation of
VisionAmerica to proceed with and obtain effectiveness of such registration may
be deferred by VisionAmerica until the proposed business combination is
consummated, or until such proposed business combination is terminated. In the
event that VisionAmerica determines that the registration or the proposed
business combination cannot be accomplished, or such registration or proposed
business combination is denied by any federal or state authority, then
VisionAmerica shall promptly notify ICON. In the event that a business
combination between the parties is not consummated, then VisionAmerica's
registration obligation under this Paragraph 4 shall continue until June 30,
2001, and VisionAmerica shall use its reasonable best efforts to provide ICON,
on a timely basis upon request, a one time
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registration of the 1,000,000 shares of Common Stock, and, if applicable, any
VisionAmerica common stock issued or issuable pursuant to the Warrant described
in Paragraph 8 herein.
5. VisionAmerica's Representations and Warranties. This Agreement has
been duly and properly approved by the Board of Directors of VisionAmerica.
Subject to the consent required by Paragraph 9 herein, VisionAmerica has the
full right, power and capacity, and all authority and approval required to enter
into, execute and deliver this Agreement and to perform and observe fully its
obligations hereunder and to authorize, sell and issue the Common Stock and to
authorize the contingent warrant as contemplated hereby. This Agreement has been
fully executed and delivered by VisionAmerica and is the valid and binding
obligation of VisionAmerica enforceable in accordance with its terms (except
insofar as such enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting creditors'
rights generally and except as to the availability of equitable remedies).
Subject to the provisions of Paragraph 9 hereof, VisionAmerica has the full
legal right, power and capacity, and all authority and approval required to
issue the Common Stock, which stock shall be fully paid and non-assessable, and
to authorize the issuance of the Warrant. The financial statements of
VisionAmerica contained in its Form 10-K for the year ended December 31, 1998
and its Form 10-Q for the nine months ended September 30, 1999 present fairly
the financial position of VisionAmerica as of the dates indicated and the
results of its operations and cash flows for the periods specified, all in
conformity with generally accepted accounting principles consistently applied.
Since September 30, 1999, VisionAmerica has not sustained any material adverse
change in its properties, assets, results of operations or financial condition.
As a part of ICON's due diligence and review of information regarding
VisionAmerica, ICON has reviewed certain non-public information regarding
VisionAmerica, including projections, budgets, financial and other information,
and the representations of VisionAmerica contained in the preceding sentence are
subject to and qualified by such disclosures.
6. ICON's Representations and Warranties. This Agreement has been duly
and properly approved by the Board of Directors of ICON. ICON has the full
right, power and capacity, and all authority and approval required to enter
into, execute and deliver this Agreement and to perform and observe fully its
obligations hereunder and to perform the transactions contemplated hereby. This
Agreement has been fully executed and delivered by ICON and is the valid and
binding obligation of ICON enforceable in accordance with its terms (except
insofar as such enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting creditors'
rights generally and except as to the availability of equitable remedies).
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7. Investment Intent. ICON acknowledges that the Common Stock has not
been registered under the Securities Act of 1933, as amended (the "Securities
Act"), or under any state or Canadian securities act, and that the Common Stock
may not be sold or otherwise transferred by any person, including a pledgee,
absent such registration, and the certificate representing such Common Stock
shall bear a legend to such effect. ICON is acquiring the Common Stock for its
own account, for investment purposes only and not with a view to distribution of
such Common Stock within the meaning of Section 2(11) of the Securities Act,
subject to sales by ICON upon registration of the Common Stock in the events
described by Paragraph 4 hereof. ICON qualifies as an "accredited investor", as
defined in Rule 501(a) pursuant to the Securities Act. ICON has received from
VisionAmerica a copy of VisionAmerica's Form 10-K for 1998, VisionAmerica's Form
10-Q for the nine months ended September 30, 1999, VisionAmerica's 1998 Annual
Report to Shareholders, and budgets, projections and other financial data
relating to periods after September 30, 1999, and other non-public information.
ICON has had the opportunity to ask questions of and receive answers from
VisionAmerica senior management concerning VisionAmerica and the terms and
conditions of this investment by ICON. ICON has had the opportunity to obtain
such information as it desires and deems necessary concerning VisionAmerica from
VisionAmerica senior management. ICON understands and acknowledges that
VisionAmerica, in issuing and selling the Common Stock hereunder, and in
agreeing to issue the Warrant described in Paragraph 8 hereof, is relying on the
representations, warranties and undertakings of ICON contained herein, and ICON
agrees to indemnify VisionAmerica with respect to the sale of the Common Stock
and the Warrant and to hold VisionAmerica harmless against all liabilities,
costs or expenses (including attorney fees) arising by reason of or in
connection with any misrepresentation or any breach of such warranties by ICON.
8. Contingent Warrant. In the event that: (i) the Common Stock has not
been registered by the earlier of (a) June 30, 2000 or the Extended Date, if
applicable, or (b) the date of a public announcement prior to June 30, 2000 or
the Extended Date, if applicable, of a proposed purchase of VisionAmerica by or
business combination of VisionAmerica with a third party other than ICON; and
(ii) ICON has proceeded in good faith with VisionAmerica to pursue a proposed
business combination with VisionAmerica; and (iii) the parties have been unable
to consummate such business combination by June 30, 2000 or the Extended Date,
if applicable, then in such events VisionAmerica agrees to issue in the name of
ICON and within five (5) business days to deliver to ICON a warrant (the
"Warrant") to purchase 1,000,000 shares of VisionAmerica Common Stock. The
exercise price of the Warrant shall be equal to: (x) in the event of an issuance
pursuant to (i)(a) above, a price equal to the average closing price of
VisionAmerica common stock, as reported on NASDAQ, for the trading days from
March 1, 2000 through June 30, 2000 or the Extended Date, if applicable; and (y)
in the event of an issuance pursuant to (i)(b) above, a price equal to the
average closing price of VisionAmerica common stock, as reported on NASDAQ, for
the trading days beginning March 1, 2000 and ending ten (10) days prior to any
announcement made before June 30, 2000, of a transaction described in (i)(a) or
(i)(b) of this Paragraph. This Warrant shall expire (i) two years after its
issuance, and (ii) at any time that a business combination between ICON and
VisionAmerica is consummated. This Warrant may not be sold or assigned by ICON.
The Warrant shall be in the
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form of and shall have the terms and conditions as contained in the form of
warrant attached hereto as Exhibit B, and incorporated herein by reference.
9. Third-Party Consent. The parties acknowledge that VisionAmerica has
a credit facility with Banc of America Commercial Finance Corporation and other
participating lenders, in the approximate principal amount of $31,600,000, and
that this Agreement and the transactions anticipated hereby are specifically
conditioned upon the written consent of such lending group to the sale and
issuance of the Common Stock and to the authorization of the contingent Warrant,
as contemplated herein. In the event that such written consent is not obtained
by February 29, 2000, then this Agreement shall terminate and shall be of no
further force or effect, except for the provisions of Paragraphs 1 and 2 hereof,
which shall in any event be effective and binding on the parties. In the event
of such termination, the VisionAmerica stock certificates referred to in
Paragraph 3 hereof shall be immediately returned to VisionAmerica by Thomson
Kernaghan. ICON acknowledges that its execution and performance of this
Agreement are not subject to the approval of any third party, and will not
violate the provision of any law, judgment, order, rule, regulation or contract
to which ICON is a party or by which it may be bound.
10. Standstill Provisions. ICON currently owns 440,000 shares of common
stock of VisionAmerica, which shares were purchased by ICON in the open market
prior to January 12, 2000. VisionAmerica does not own any common stock of ICON.
Each of the parties agrees that it will not, directly or indirectly, from the
date hereof until July 1, 2000, purchase or acquire the right to purchase any
equity interest in the other party, except (i) as specifically provided herein,
or (ii) if VisionAmerica breaches any of its obligations in this Agreement, or
(iii) in the event that any third party not directly or indirectly affiliated
with ICON acquires, or publicly announces its intent to acquire, over five
percent (5%) of the common stock of VisionAmerica, or (iv) VisionAmerica sells,
or agrees to sell over 5% of its common stock to any third party.
11. Undertakings. ICON acknowledges that, as a result of its purchase
of the Common Stock hereunder, it is required to file with the SEC a Form 13D,
and it will promptly make such filing. VisionAmerica acknowledges that it will
promptly file with the SEC a Form 8-K concerning this Agreement.
12. Proposed Laser Program Cooperation. VisionAmerica has an
established presence in various markets which includes laser facilities, staff
and working relationships with local ophthalmologists and optometrists. ICON has
value-Lasik marketing experience, excimer lasers and a telephone/internet call
center to support its marketing programs. The parties intend to work together in
a cooperative manner such that in any approved market, each party will perform
in its areas of expertise in a coordinated manner with the other party so as to
produce a combined effort that is a comprehensive laser vision correction
program for the general public and patients of referring optometrists. By March
31, 2000, VisionAmerica and ICON intend, subject to any required approval of
VisionAmerica's lending group, to create and execute an appropriate agreement
that establishes such proposed arrangement.
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13. Benefit. The Agreement shall be binding upon and shall inure to the
benefit of the parties hereto and their respective successors. The parties
hereby acknowledge that they may not assign any of their rights or obligations
hereunder without the prior written consent of the other party. The parties
hereby acknowledge that no other person is a third-party beneficiary hereunder.
14. Brokers. The parties hereby acknowledge that neither has utilized
or been obligated for the services of any broker or finder in connection with
this transaction, and that neither party is obligated for any such fee or cost.
15. Governing Law. This Agreement shall be governed by and shall be
construed in accordance with the provisions of the laws of the State of
Delaware.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on
the day and year first above written.
VISIONAMERICA INCORPORATED
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President
ICON LASER EYE CENTERS, INC.
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
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President
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