Exhibit (a)(13)
FIRST AMENDMENT TO AGREEMENT AND PLAN OF MERGER
THIS FIRST AMENDMENT TO AGREEMENT AND PLAN OF MERGER, dated as of
October 5, 1998 (this "First Amendment"), by and among NATIONAL VISION
ASSOCIATES, LTD., a Georgia corporation ("Parent"), NW ACQUISITION
CORP., a Delaware corporation and a wholly-owned subsidiary of Parent
("Sub"), and NEW WEST EYEWORKS, INC., a Delaware corporation (the
"Company").
RECITALS:
WHEREAS, the parties have previously entered into an Agreement
and Plan of Merger dated as of July 13, 1998 (the "Merger Agreement");
WHEREAS, undefined capitalized terms used in these recitals shall
have the meanings given to them in the Merger Agreement;
WHEREAS, the Merger Agreement contemplated that Sub would make
the Offer for all Common Stock and that as provided in the Merger
Agreement, the Offer would be at a price of $13.00 in cash per share
of the Common Stock;
WHEREAS, certain obligations of Parent and Sub under the Merger
Agreement were subject to the Financing Condition;
WHEREAS, following execution of the Merger Agreement, Parent and
Sub attempted to obtain the financing contemplated by the Financing
Condition;
WHEREAS, as a result of adverse developments in the financial
markets, Parent and Sub were unable to obtain financing at rates that
were contemplated at the time of the execution of the Merger
Agreement;
WHEREAS, Parent and Sub have informed the Company that, to
satisfy the Financing Condition, they will need to issue senior notes
in the face amount of $120 million (the "Notes") pursuant to Rule 144A
of the Securities Act at an effective yield to maturity of 13%;
WHEREAS, because of the unexpectedly high rate of interest which
will be required under the Notes, Parent and Sub are unwilling to
proceed to consummate the transactions contemplated by the Merger
Agreement unless the terms of the Offer and the Merger are changed to
$11.50 per share of Common Stock;
WHEREAS, the parties wish to amend the terms and conditions of
the Merger Agreement to, among other things, change the price per
share of Common Stock to be paid pursuant to the Offer, and to make
certain other amendments described herein; and
WHEREAS, the respective Boards of Directors of the Parent, Sub
and the Company have approved the terms of this First Amendment.
NOW, THEREFORE, in consideration of the mutual covenants and
agreements, and upon the terms and subject to the conditions
hereinafter set forth, and intending to be legally bound, the parties
agree as follows
1. CHANGE IN OFFER. The price to be paid for each share of
Common Stock in the Offer and in the Merger is hereby changed from
$13.00 to $11.50 and all references to $13.00 in the Merger Agreement
or any exhibits thereto shall be changed accordingly and all
references to the Offer and the Merger shall refer to the Offer as
amended to reflect such purchase price and the Merger providing for
the payment of such purchase price.
2. OFFER DOCUMENTS. Concurrently with the execution of this
Agreement, the parties will jointly issue the press release attached
hereto as Exhibit A. At or promptly after, as applicable, the Pricing
Time (as defined below), (a) Parent and Sub will file with the SEC the
Offer Documents revised as appropriate to reflect the changes set
forth in this First Amendment and shall also take the other actions,
as appropriate, described in Section 1.01(b) of the Merger Agreement;
and (b) the Company will file with the SEC the Schedule 14D-9 revised
as appropriate to reflect the changes set forth in this First
Amendment and shall also take the other actions, as appropriate,
described in Section 1.02(b) of the Merger Agreement
3. FAIRNESS OPINION. The Company represents and warrants to
Parent and Sub that its Board of Directors has received the oral
opinion of Everen that the consideration to be received by the
Company's stockholders in the Offer and the Merger (as revised by this
First Amendment) is fair, from a financial point of view, to such
stockholders, and such opinion shall be reduced to written form as
soon as practicable.
4. EXTENSION DATE. References to the date October 14, 1998 in
Sections 1.01 and 8.06(b) of the Merger Agreement and to the date
October 15, 1998 in Section 8.01(b)(ii)(2) of the Merger Agreement
shall be amended to refer to the first business day (the "Extension
Date") after the day that is the earliest day that shares of Common
Stock can be purchased in the Offer under applicable regulations of
the SEC in light of the changes to the Offer that are effected by this
First Amendment and the filings referred to in Section 2 above. The
parties agree that the Extension Date is Thursday, October 23, 1998.
At the Pricing Time, the Offer will be extended by Parent to midnight
on Wednesday, October 22, 1998. In no event may the Offer be extended
beyond such date.
5. CONDITIONS TO THE OFFER. Parent affirms that it is not
currently aware of any facts that would establish a basis pursuant to
paragraphs (c) or (f) of Exhibit A to the Merger Agreement upon which
to not continue the Offer or to terminate the Offer or to not accept
for payment or pay for shares of Common Stock tendered pursuant
thereto. Parent and Sub further agree that they will only take any
such actions pursuant to the conditions contained in such paragraphs
on the basis of facts arising after the Pricing Time (or facts arising
prior to the Pricing Time which are concealed from Parent) and that do
not arise from this First Amendment, including without limitation, any
action or proceeding before any Governmental Person with respect to
the Offer, the Merger or this First Amendment. The condition
contained in paragraph (d) (ii) of Exhibit A of the Merger Agreement
shall, upon the closing of the offering of the Notes pursuant to the
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Purchase Agreement (as defined below), apply only to any facts or
circumstances contemplated by such paragraph that occur solely on or
after such closing date without consideration of any related facts or
circumstances that occurred prior to such closing date.
6. PROCEEDS OF NOTES. Net proceeds from the sale of the Notes
in an amount sufficient to satisfy Parent's and Sub's obligations
hereunder shall be held by Parent in a segregated account and used
only to satisfy Parent's obligations hereunder or until the Merger
Agreement, as amended by this First Amendment, is terminated in
accordance with its terms.
7. CONVERSION OF PREFERRED STOCK AND EXERCISE OF WARRANTS. The
stockholders of the Company listed on the signature page of Exhibit E
to the Merger Agreement have executed this First Amendment solely for
the purpose of agreeing to promptly enter into agreements
substantially in the forms of Exhibits C, D and E to the Merger
Agreement, as applicable. The Company also agrees to use its best
efforts to cause all other holders of its Convertible Preferred Stock
and Company Warrants to promptly enter into agreements substantially
in the form of Exhibits C and D as applicable.
8. RATIFICATION. The parties hereby ratify and confirm the
terms of the Merger Agreement. In the event of any inconsistency
between the terms of the Merger Agreement and terms of this First
Amendment, the terms of this First Amendment shall control.
9. PRICING TIME. This First Amendment shall become effective
(the time of such effectiveness, the "Pricing Time") as of the
execution and delivery of that certain Purchase Agreement by and among
the Parent, Xxxxxxxx & Co., Inc., BancAmerica Securities, Inc., and
First Union Capital Markets (the "Purchase Agreement") pursuant to
which Parent will sell the Notes at an effective yield to maturity of
13%. This First Amendment shall be of no force and effect if either
(a) the Pricing Time does not occur by 5:00 PM Eastern Standard Time
on Tuesday, October 6, 1998 or (b) the Notes sold by Parent under the
Purchase Agreement bear an effective yield to maturity of less than
13%.
IN WITNESS WHEREOF, each of Company, Parent, the Sub and the
Stockholders have caused this First Amendment to be duly executed and
delivered as of the date first written above.
NEW WEST EYEWORKS, INC.
By: /s/ Xxxxxx X. Xxxxxxxx
Name: Xxxxxx X. Xxxxxxxx
Title: Chairman
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NATIONAL VISION ASSOCIATES, LTD.
By: /s/ Xxxxx X. Xxxxxx
Name: Xxxxx X. Xxxxxx
Title:________________________
NW ACQUISITION CORP.
By: /s/ Xxxxx X. Xxxxxx
Name: Xxxxx X. Xxxxxx
Title:________________________
STOCKHOLDERS:
/s/ Xxxxxx X. Xxxxxxxx
Xxxxxx X. Xxxxxxxx
MESIROW CAPITAL PARTNERS II
By: /s/ Xxxxxx X. Xxxxxx
Name: /s/ Xxxxxx X. Xxxxxx
MESIROW CAPITAL PARTNERS III
By: /s/ Xxxxxx X. Xxxxxx
Name: /s/ Xxxxxx X. Xxxxxx
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MESIROW CAPITAL PARTNERS IV
By: /s/ Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx
MESIROW CAPITAL PARTNERS V
By: /s/ Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx
MESIROW CAPITAL PARTNERS VI
By: /s/ Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx
/s/ Xxxxx X. Xxxx
Xxxxx X. Xxxx
