Exhibit 4.4
SECOND AMENDMENT TO RIGHTS AGREEMENT
This Second Amendment to Rights Agreement, dated as of June 1, 1999,
between Vista Eyecare, Inc., a Georgia corporation formerly known as National
Vision Associates, Ltd. (the "Company"), and First Union National Bank, as
Rights Agent (the "Rights Agent"), as successor to Wachovia Bank N.A., a Georgia
bank ("Wachovia").
RECITALS
WHEREAS, the Company and Wachovia entered into a Rights Agreement dated as
of January 17, 1997 and subsequently amended such Rights Agreement by an
Amendment dated as of March 1, 1998 (such Agreement and Amendment, jointly, the
"Rights Agreement"); and
WHEREAS, the Company has appointed the Rights Agent to succeed Wachovia as
Rights Agent, and the Rights Agent has accepted such appointment in accordance
with the Rights Agreement; and
WHEREAS, in connection with the appointment of the Rights Agent, the
Company and the Rights Agent have agreed to amend the Rights Agreement in the
manner set forth herein;
NOW, THEREFORE, in consideration of the premises and mutual agreements set
forth in the Rights Agreement and this Second Amendment, the parties hereto
agree as follows:
1. Section 3(c) of the Rights Agreement shall be amended to read as
follows:
"(c) Rights shall be issued in respect of all shares of Common Stock
that become outstanding (on original issuance or out of treasury) after the
Effective Date but prior to the earlier of the Distribution Date or the
Expiration Date. Certificates for the Common Stock that become outstanding or
shall be transferred or exchanged after the Effective Date but prior to the
earlier of the Distribution Date or the Expiration Date shall also be deemed to
be certificates for Rights and shall have impressed on, printed on, written on
or otherwise affixed to them the following legend:
This certificate also evidences certain Rights as set forth in a
Rights Agreement between Vista Eyecare, Inc. and First Union National
Bank, dated as of January 17, 1997, as the same has or may be amended or
restated (the "Rights Agreement"), the terms of which are hereby
incorporated herein by reference and a copy of which is on file at the
principal office of the Company. The Company will mail to the holder of
this certificate a copy of the Rights Agreement without charge promptly
after receipt of a written request therefor. Under certain circumstances,
as set forth in the Rights Agreement, such Rights may be evidenced by
separate certificates and no longer be evidenced by this certificate, may
be redeemed or exchanged or may expire. As set forth in the Rights
Agreement, Rights issued to, or held by, any Person who is, was or becomes
an Acquiring Person or an Affiliate or Associate thereof (as such terms
are defined in the Rights Agreement), whether currently held by or on
behalf of such Person or by any subsequent holder, may be null and void."
2. The last sentence of Section 12 of the Rights Agreement shall be
amended to read as follows:
"The Rights Agent shall be fully protected in relying on any such
certificate and on any adjustment contained therein and shall not be obligated
or responsible for calculating any adjustment nor shall it be deemed to have
knowledge of any such adjustment unless and until it shall have received such a
certificate."
3. The second sentence of Section 18 (a) of the Rights Agreement shall be
amended to read as follows:
"The Company also agrees to indemnify the Rights Agent for, and to
hold it harmless against, any loss, liability, or expense, incurred without
gross negligence, bad faith, or willful misconduct on the part of the Rights
Agent, for anything done or omitted by the Rights Agent in connection with the
acceptance and administration of this Agreement or the exercise or performance
of its duties hereunder, including the costs and expenses of defending against
any claim of liability."
4. A new Section 18 (c) of the Rights Agreement shall be added to read as
follows:
"(c) The indemnity provided in this Section 18 shall survive the
expiration of the Rights and the termination of this Agreement."
5. Section 20 (a) of the Rights Agreement shall be amended to read as
follows:
"The Rights Agent may consult with legal counsel (who may be legal
counsel for the Company), and the advice or opinion of such counsel shall be
full and complete authorization and protection to the Rights Agent as to any
action taken or omitted by it in good faith and in accordance with such advice
or opinion."
6. Section 20 (c) of the Rights Agreement shall be amended to read as
follows:
"The Rights Agent shall be liable hereunder only for its own gross
negligence, bad faith or willful misconduct."
7. Section 20 (g) of the Rights Agreement shall be amended to read as
follows:
"The Rights Agent is hereby authorized and directed to accept
instructions with respect to the performance of its duties hereunder from the
Chairman of the Board, the President, any Vice President, the Secretary or any
Assistant Secretary of the Company, and to apply to such officers for advice or
instructions in connection with its duties, and it shall not be liable for any
action taken, suffered or omitted to be taken by it in good faith in accordance
with instructions of any such officer or for any delay in acting while awaiting
instructions."
8. A new Section 20 (l) of the Rights Agreement shall be added to read as
follows:
"(l) The Rights Agent undertakes only the express duties and
obligations imposed on it by this Agreement and no implied duties or obligations
shall be read into this Agreement against the Rights Agent."
2
9. A new Section 20 (m) of the Rights Agreement shall be added to read as
follows:
"(m) Anything in this Agreement to the contrary notwithstanding, in
no event shall the Rights Agent be liable for special, indirect or consequential
loss or damage of any kind whatsoever (including but not limited to lost
profits)."
10. A new sentence shall be added as follows to the end of Section 27 of
the Rights Agreement:
"No supplement or amendment that changes the rights and duties of
the Rights Agent (as Rights Agent) under this Agreement shall be effective
without the consent of the Rights Agent."
11. The term "Agreement" as used in the Rights Agreement shall be deemed
to refer to the Rights Agreement as amended hereby.
12. This Second Amendment shall be effective as of June 1, 1999 and,
except as set forth herein, the Rights Agreement shall remain in full force and
effect and shall be otherwise unaffected hereby.
13. This Second 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 Second Amendment
to be duly executed as of the date and year first above written.
VISTA EYECARE, INC.
By: _______________________________
Name:
Title:
FIRST UNION NATIONAL BANK
By: _______________________________
Name:
Title:
