Exhibit 4.12
AGREEMENT OF SUBSTITUTION AND THIRD AMENDMENT OF
RIGHTS AGREEMENT
This Agreement of Substitution and Third Amendment is entered into as
of March 5, 2004, by and between National Vision, Inc., a Georgia corporation
(the "Company") and American Stock Transfer & Trust Company, a New York banking
corporation ("AST").
RECITALS
A. The Company and Wachovia Bank of North Carolina, N.A. ("Wachovia")
entered into a Rights Agreement dated as of January 17, 1997, and the
Company and Wachovia subsequently entered into an Amendment dated as of
March 1, 1998 to such Rights Agreement, and the Company and a successor
to Wachovia entered into a Second Amendment dated as of June 1, 1999 to
such Rights Agreement (such Agreement and two amendments, collectively,
the "Rights Agreement").
B. The Company has determined to replace the current rights agent under
the Rights Agreement (the "Predecessor Agent") and to substitute AST as
rights agent pursuant to Section 21 of the Rights Agreement.
C. The Company has given the Predecessor Agent notice of removal of the
Predecessor Agent as rights agent.
AGREEMENT
NOW THEREFORE, in consideration of the foregoing and of other
consideration, the sufficiency of which is hereby acknowledged, the parties
agree as follows:
1. 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 as of July 1, 2001 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).
2. 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 National Vision,
Inc. and American Stock Transfer & Trust Company, as
successor to First Union National Bank, dated as of
January 17, 1997, as amended (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.
3. The fifth sentence of Section 21 of the Rights Agreement shall
be amended to read as follows:
Any successor Rights Agent, whether appointed by the
Company or by such a court, shall be (a) a
corporation organized and doing business under the
laws of the United States or of the State of Georgia
(or any other state of the United States so long as
such corporation is authorized to do business as a
banking institution in the State of Georgia or in the
State of New York), in good standing, having a
principal office in the State of Georgia or in the
State of New York, which is authorized under such
laws to exercise stock transfer or corporate trust
powers and is subject to supervision or examination
by federal or state authority and which has at the
time of its appointment as Rights Agent a combined
capital and surplus of at least $10,000,000 or (b) an
Affiliate of a corporation described in SECTION
21(A).
4. The Company hereby appoints AST as Rights Agent pursuant to
Section 21 of the Rights Agreement, to serve in that capacity
for the consideration and subject to all of the terms and
conditions of the Rights Agreement.
5. AST hereby accepts the appointment as Rights Agent pursuant to
Section 21 of the Rights Agreement and agrees to serve in that
capacity for the consideration and subject to all of the terms
and conditions of the Rights Agreement.
6. Notices or demands under the Rights Agreement shall be
addressed as follows (until another address is specified by
the Company or the Rights Agent):
IF TO THE COMPANY:
National Vision, Inc.
000 Xxxxxxx Xxxxxxx
Xxxxxxx, Xxxxxxx 00000
Attn: President and Chief Executive Officer
With a copy to:
National Vision, Inc.
000 Xxxxxxx Xxxxxxx
Xxxxxxx, Xxxxxxx 00000
Attn: General Counsel
IF TO AST:
American Stock Transfer & Trust Company
00 Xxxxxx Xxxx
Xxx Xxxx, XX 00000
Attention: Corporate Trust Department
7. This Agreement shall be effective as of the close of business
on March 5, 2004 and, except as expressly modified herein, the
Rights Agreement shall remain in full force and effect. The
term "Agreement" as used in the Rights Agreement shall be
deemed to refer to the Rights Agreement as amended hereby in
Sections 1, 2, and 3 of this Agreement of Substitution and
Third Amendment. Undefined capitalized terms used herein shall
have the meanings given to them in the Rights Agreement.
8. This Agreement of Substitution and Third Amendment may be
executed in one or more counterparts, each of which shall
together constitute one and the same document.
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed as of the date indicated above.
NATIONAL VISION, INC.
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Name:
AMERICAN STOCK TRANSFER & TRUST
COMPANY
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Name:
