AMENDMENT TO RIGHTS AGREEMENT
This Amendment to Rights Agreement, dated as of March 1,
1998, to the Rights Agreement, dated as of January 17, 1997 (the
"Rights Agreement"), between National Vision Associates, Ltd.., a
Georgia corporation (the "Company"), and Wachovia Bank N.A.,
a Georgia bank, as Rights Agent (the "Rights Agent").
WHEREAS, the Company and the Rights Agent entered into the
Rights Agreement specifying the terms of the Rights (as defined
therein); and
WHEREAS, the Company and the Rights Agent desire to amend
the Rights Agreement in accordance with Section 27 of the Rights
Agreement; and
WHEREAS, the Board of Directors of the Company has voted in
favor of this Amendment at a meeting of directors duly called and
held;
NOW, THEREFORE, in consideration of the premises and mutual
agreements set forth in the Rights Agreement and this Amendment,
the parties hereto agree as follows:
1. Section 1(c) of the Rights Agreement shall be
amended to read as follows:
"APPROVED ACQUISITION" means any acquisition of Common
Stock by an Acquiring Person that is approved in advance by a
majority of the Continuing Directors.
2. Section 1(h) of the Rights Agreement shall be
amended to read as follows:
"CONTINUING DIRECTOR" means any member of the Board of
Directors of the Company, while such Person is a member of the
Board, who is not an Acquiring Person or an Affiliate or
Associate of an Acquiring Person or a representative or nominee
of an Acquiring Person or of any such Affiliate or Associate, or
otherwise affiliated with an Acquiring Person or of any such
Affiliate or Associate, and who either (i) was a member of the
Board immediately prior to the Effective Date, or (ii)
subsequently becomes a member of the Board, if such Person's
nomination for election or election to the Board is recommended
or approved by a majority of the Continuing Directors serving at
the time of such nomination or election (which shall include
without limitation the nominees included in any proxy statement
approved by the Continuing Directors).
3. Section 23 of the Rights Agreement shall be
amended to read as follows:
REDEMPTION AND TERMINATION. (a) The Company may, at
its option, but only upon the vote of a majority of the
Continuing Directors then in office, at any time prior to the
earlier of (i) the Close of Business on the Share Acquisition
Date, or (ii) the Final Expiration Date, redeem all but not less
than all of the then outstanding Rights at a redemption price of
$0.001 per Right, as such amount may be appropriately adjusted to
reflect any stock split, stock dividend or similar transaction
occurring after the date hereof (such redemption price being
referred to herein as the "REDEMPTION PRICE"), and the Company
may, at its option, pay the Redemption Price in shares of Common
Stock (based on the "CURRENT MARKET VALUE," as defined in SECTION
11(D), of the shares of Common Stock at the time of redemption),
cash or any other form of consideration deemed appropriate by the
Board of Directors; provided, however, that any redemption of
Rights shall also be subject to any additional approval
procedures required by the articles of incorporation or bylaws of
the Company. Notwithstanding anything in this Agreement to the
contrary, the Rights shall not be exercisable after the first
occurrence of a Flip-in Event until such time as the Company's
right of redemption hereunder has expired.
(b) If, following the occurrence of a Share Acquisition
Date (i) a Person who is an Acquiring Person shall have
transferred or otherwise disposed of a number of shares of Common
Stock in one transaction or series of transactions, not directly
or indirectly involving the Company or any of its Subsidiaries,
which did not result in the occurrence of a Triggering Event such
that such Person is thereafter the Beneficial Owner of 10% or
less of the outstanding Common Stock, and (ii) there are no other
Persons immediately following the occurrence of the event
described in clause (i) who are Acquiring Persons, then the right
of redemption shall be reinstated and thereafter be subject to
the provisions of this SECTION 23.
(c) Immediately upon the action of the Continuing Directors
electing to redeem the Rights, and without any further action and
without any notice, the right to exercise the Rights will
terminate and thereafter the only right of the holders of Rights
shall be to receive the Redemption Price for each Right so held.
The Company shall promptly thereafter give notice of such
redemption to the Rights Agent and the holders of the Rights in
the manner set forth in SECTION 26; provided, however, that the
failure to give, or any defect in, such notice shall not affect
the validity of such redemption. Any notice which is mailed in
the manner provided herein shall be deemed given, whether or not
the holder receives the notice. Each such notice of redemption
will state the method by which the payment of the Redemption
Price will be made.
4. Section 27 of the Rights Agreement shall be
amended to read as follows:
SECTION 27. SUPPLEMENTS AND AMENDMENTS. Prior to the
Distribution Date and subject to the penultimate sentence of this
Section 27, the Company may, and the Rights Agent shall if the
Company so directs, supplement or amend any provision of this
Agreement without the approval of any holders of certificates
representing shares of Common Stock. From and after the
Distribution Date, and subject to the penultimate sentence of
this Section 27, the Company may, and the Rights Agent shall if
the Company so directs, supplement or amend this Agreement
without the approval of any holders of Right Certificates in
order (a) to cure any ambiguity, (b) to correct or supplement any
provision contained herein which may be defective or inconsistent
with any other provisions herein, (c) to shorten or lengthen any
time period hereunder (which shortening or lengthening shall be
effective only if there are Continuing Directors in office and
shall require the concurrence of a majority of such Continuing
Directors), or (d) to change or supplement the provisions hereof
in any manner which the Company may deem necessary or desirable
and which shall not adversely affect the interests of the holders
of Rights (other than an Acquiring Person or an Affiliate or
Associate of an Acquiring Person); provided, however, that this
Agreement may not be supplemented or amended pursuant to Section
27(c) to lengthen (i) a time period relating to when the Rights
may be redeemed at such time as the Rights are not then
redeemable, or (ii) any other time period, unless lengthening
such other time period is for the purpose of protecting,
enhancing, or clarifying the rights of, or benefits to, the
holders of the Rights. Notwithstanding the foregoing, after any
Person has become an Acquiring Person, any supplement or
amendment shall be effective only if there are Continuing
Directors then in office, and such supplement or amendment shall
have been approved by a majority of such Continuing Directors.
Prior to the Distribution Date, the interests of the holders of
Rights shall be deemed coincident with the interests of the
holders of Common Stock. Notwithstanding anything contained in
this Agreement to the contrary, no supplement or amendment shall
be made at any time which changes the Redemption Price, the Final
Expiration Date, the Purchase Price, the requisite ownership of
Common Stock necessary for a Person to be deemed an Acquiring
Person, the number of one one-hundredths of a share of Preferred
Stock for which a Right is exercisable, or the definition of an
Excluded Person, unless in any such case there are Continuing
Directors then in office and such supplement or amendment shall
have been approved by a majority of such Continuing Directors.
Upon the delivery of a certificate from the chief executive officer,
president or any vice president of the Company which states that
the proposed supplement or amendment is in compliance with the
terms of this Section, the Rights Agent shall execute such
supplement or amendment.
5. The Summary of Terms attached to the Rights
Agreement as Exhibit C shall be deemed to be amended to reflect
the terms of this Amendment.
6. The term "Agreement" as used in the Rights
Agreement shall be deemed to refer to the Rights Agreement as
amended hereby.
7. The foregoing Amendment shall be effective as of
March 1, 1998 and, except as set forth herein, the Rights
Agreement shall remain in full force and effect and shall be
otherwise unaffected hereby.
8. This Amendment may be executed in two or more
counterparts, each of which shall be deemed an original, but all
of which together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be duly executed as of the day and year first above
written.
NATIONAL VISION ASSOCIATES, LTD.
By: /s/ Xxxxxxxx Xxxxxxx
Name: Xxxxxxxx Xxxxxxx
Title: Vice President and Secretary
WACHOVIA BANK N.A.
By: /s/ Xxxxxxx X. Xxxxxx
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
