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EXHIBIT (c)(2)
STOCK TENDER AGREEMENT
THIS STOCK TENDER AGREEMENT (this "Agreement") is made this 13th day of
July, 1998, by and among NATIONAL VISION ASSOCIATES, LTD., a Georgia corporation
("Parent"), NW ACQUISITION CORP., a wholly-owned subsidiary of Parent and a
Delaware corporation ("Sub"), and each of the parties listed on the signature
pages hereto (each a "Stockholder", and collectively, the "Stockholders").
WHEREAS, each of the Stockholders is, as of the date hereof, the record
and beneficial owner of the shares of common stock, par value $.01 per share
(the "Common Stock"), of New West Eyeworks, Inc., a Delaware corporation (the
"Company"), set forth opposite its name on Annex I hereto;
WHEREAS, Parent, Sub and the Company concurrently herewith are entering
into an Agreement and Plan of Merger, dated as of the date hereof (the "Merger
Agreement"), which provides, among other things, for the acquisition of the
Company by Parent by means of a cash tender offer (the "Offer") by Sub for all
of the issued and outstanding shares of Common Stock and for the subsequent
merger (the "Merger") of Sub with and into the Company upon the terms and
subject to the conditions set forth in the Merger Agreement; and
WHEREAS, as a condition to the willingness of Parent and Sub to enter
into the Merger Agreement, and in order to induce Parent and Sub to enter into
the Merger Agreement, the Stockholders have agreed to enter into this Agreement.
NOW, THEREFORE, in consideration of the execution and delivery by
Parent and Sub of the Merger Agreement and the mutual representations,
warranties, covenants and agreements set forth herein and therein, and other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
SECTION 1. Representations and Warranties of the Stockholder. Each of
the Stockholders hereby represents and warrants to Parent and Sub, severally and
not jointly, as follows:
(a) Such Stockholder is the record and beneficial owner of the shares
of Common Stock set forth opposite its name on Annex I to this Agreement (as the
shares may be adjusted from time to time pursuant to Section 6 hereof, the
"Shares"). On the date hereof, the Shares opposite such Stockholder's name
constitute all of the Shares owned by such Stockholder (exclusive of Shares held
of record by Flag Partners, and options, warrants or preferred stock that may be
exercised for or converted into Common Stock). Such Stockholder has the
exclusive right to vote or dispose of (or exercise the voting or disposition of)
such Shares. Notwithstanding any of the terms contained in this Agreement,
Xxxxxx X. Xxxxxxxx may gift to charities of his choice up to 5,000 Shares, which
Shares shall not be subject to the terms of this Agreement.
(b) Such Stockholder is an individual or is a limited partnership, as
the case may be, duly organized, validly existing and in good standing under the
laws of its respective jurisdiction of organization, and such Stockholder has
all requisite power and authority to enter into this Agreement and to consummate
the transactions contemplated hereby, and in the case of such Stockholder that
is a
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limited partnership, has taken all partnership action necessary to authorize the
execution, delivery and performance of this Agreement.
(c) In the case of such Stockholder that is a limited partnership, this
Agreement has been duly authorized, validly executed and delivered by such
Stockholder. Assuming this Agreement has been duly and validly authorized,
executed and delivered by Parent and Sub, this Agreement constitutes the legal,
valid and binding obligation of such Stockholder, enforceable against such
Stockholder in accordance with its terms, except as may be limited by
bankruptcy, insolvency, reorganization, moratorium or other laws affecting
enforcement of creditors' rights generally and by general equitable principles
(regardless of whether such enforceability is considered in a proceeding in
equity or at law).
(d) The execution and delivery of this Agreement by such Stockholder do
not, and the performance by such Stockholder of its obligations hereunder will
not, (i) conflict with, result in a violation or breach of, constitute (with or
without notice or lapse of time or both) a default under, result in or give to
any person any right of termination, cancellation, modification or acceleration
of, or result in the creation or imposition of any Lien upon any of the assets
or properties of such Stockholder under, any of the terms, conditions or
provisions of (A) the certificates or articles of incorporation or bylaws (or
other comparable charter documents) , as applicable, of such Stockholder or (B)
(x) any Law or Order of any Governmental or Regulatory Authority applicable to
such Stockholder or any of such Stockholder's respective assets or properties,
or (y) any Contract to which such Stockholder is a party or by which such
Stockholder or any of its respective assets or properties is bound, excluding
from the foregoing clauses (x) and (y) conflicts, violations, breaches,
defaults, terminations, cancellations, modifications, accelerations and
creations and impositions of Liens which, individually or in the aggregate,
could not be reasonably expected to have a material adverse effect on the
ability of such Stockholder to consummate the transactions contemplated by this
Agreement, or (ii) require any filing by such Stockholder with, or any permit,
authorization, consent or approval of, any Governmental or Regulatory Authority
or any third party other than an amendment to a Schedule 13D, 13G, Form 4 and/or
Form 5. There is no beneficiary or holder of a voting trust certificate or other
interest of any trust of which such Stockholder is a trustee whose consent is
required for the execution and delivery of this Agreement or the consummation by
such Stockholder of the transactions contemplated hereby.
(e) Other than the Shares subject to the Escrow and Subordination
Agreement, dated as of December 1, 1993, by and between the Company, the
Huntington Trust Company, N.A., as Escrow Agent, and Xxxxx X. Xxxx and Xxxxxx X.
Xxxxxxxx, the Shares and the certificates representing the Shares owned by such
Stockholder are now and at all times during the term hereof will be held by such
Stockholder, or by a nominee or custodian for the benefit of such Stockholder,
free and clear of all Liens, proxies, voting trusts or agreements, except for
any such Liens, proxies, voting trusts or agreements arising hereunder.
SECTION 2. Representations and Warranties of Parent and Sub. Each of
Parent and Sub hereby represents and warrants to the Stockholders as follows:
(a) Parent and Sub are corporations duly organized, validly existing
and in good standing under the laws of their respective jurisdictions of
incorporation, and each of Parent and Sub has full corporate power and authority
to enter into this Agreement and to consummate the transactions
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contemplated hereby and has taken all necessary corporate action to authorize
the execution, delivery and performance of this Agreement.
(b) This Agreement has been duly authorized, executed and delivered by
each of Parent and Sub and constitutes the legal, valid and binding obligation
of each of Parent and Sub, enforceable against each of them in accordance with
its terms, except as may be limited by bankruptcy, insolvency, reorganization,
moratorium or other similar laws affecting enforcement of creditors' rights
generally and by general equitable principles (regardless of whether such
enforceability is considered in a proceeding in equity or at law).
(c) The execution and delivery of this Agreement by Parent and Sub do
not, and the performance by Parent and Sub of their obligations hereunder and
the consummation of the transactions contemplated hereby will not, (i) conflict
with, result in a violation or breach of, constitute (with or without notice or
lapse of time or both) a default under, result in or give to any person any
right of termination, cancellation, modification or acceleration of, or result
in the creation or imposition of any Lien upon any of the assets or properties
of Parent or Sub under, any of the terms, conditions or provisions of (A) the
certificates or articles of incorporation or bylaws of Parent or Sub or (B) (x)
any Law or Order of any Governmental or Regulatory Authority applicable to
Parent or Sub or any of their respective assets or properties, or (y) any
Contract to which Parent or Sub is a party or by which Parent or Sub or any of
their respective assets or properties is bound, excluding from the foregoing
clauses (x) and (y) conflicts, violations, breaches, defaults, terminations,
modifications, accelerations and creations and impositions of Liens which,
individually or in the aggregate, could not be reasonably expected to have a
material adverse effect on the ability of Parent and Sub to consummate the
transactions contemplated by this Agreement, or (ii) require any filing by
Parent or Sub with, or any permit, authorization, consent or approval of, any
Governmental or Regulatory Authority, other than a Schedule 13D filing.
(d) Securities Law Compliance. Neither Parent nor Sub will effect any
offer or sale of the Shares which offer or sale would cause any Stockholder to
violate the registration requirements of the Securities Act of 1933, as amended,
or the registration or qualification requirements of the securities laws of any
other jurisdiction.
SECTION 3. Tender of the Shares. Each of the Stockholders hereby agrees
to tender the Shares set forth opposite its name on Annex I to this Agreement
into the Offer promptly, and in any event no later than the fifteenth business
day following the commencement of the Offer pursuant to Section 1.01 of the
Merger Agreement and not to withdraw any Shares so tendered unless the Merger
Agreement is terminated or the Offer has expired; provided that if such
Stockholder shall thereafter acquire shares of Common Stock, then any such
additional shares shall be tendered on the next succeeding business day after
such acquisition. Sub hereby agrees to purchase all the Shares so tendered at
the price of $13.00 per Share, as such price may be modified in accordance with
the Merger Agreement and this Agreement; provided, however, that Sub's
obligation to accept for payment and pay for the Shares in the Offer is subject
to all the terms and conditions of the Offer set forth in the Merger Agreement
and Exhibit A thereto. Neither Parent nor Sub shall take any of the actions set
forth in Section 1.01 (a)(i) - (v) of the Merger Agreement without the consent
of the Stockholders.
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SECTION 4. Transfer of the Shares; Proxies and Non-Interference. Prior
to the termination of this Agreement, except as otherwise provided herein, each
Stockholder agrees severally, and not jointly, that it shall not shall, directly
or indirectly, (i) offer for sale, sell, transfer, tender, pledge, encumber,
assign, or otherwise dispose of, any or all of the Shares; (ii) enter into any
Contract, option or understanding with respect to any transfer of any or all of
the Shares or any interest therein; (iii) except as provided herein, grant any
proxy, power-of-attorney or other authorization or consent in or with respect to
the Shares; (iv) deposit the Shares into a voting trust or enter into a voting
agreement or arrangement with respect to the Shares; or (v) take any other
action that would in any way restrict, limit or interfere with the performance
of such Stockholder's obligations hereunder or the transactions contemplated
hereby.
SECTION 5. Stockholder Capacity. No person executing this Agreement,
either in his individual capacity or on behalf of a Stockholder, who is or
becomes during the term hereof a director of the Company, makes any agreement or
understanding herein in his or her capacity as such director. Each Stockholder
signs solely in his or her capacity as the owner of, or the trustee of a trust
whose beneficiaries are the owners of, such Stockholder's Shares. Without
limiting the foregoing, nothing in this Agreement shall prohibit, limit or
affect any Stockholder or any of its officers, directors, partners, employees or
agents, acting solely in their capacities as a director or officer of the
Company, from taking any action as a director or officer including, without
limitation, any actions permitted or not prohibited by the Merger Agreement with
respect to any Acquisition Proposal (as defined in the Merger Agreement) and
nothing in this Agreement shall prohibit the Company from taking any action
permitted under Section 6.10 of the Merger Agreement.
SECTION 6. Certain Events. In the event of any stock split, stock
dividend, merger, reorganization, recapitalization or other change in the
capital structure of the Company affecting the Common Stock or the acquisition
of additional shares of Common Stock or other securities or rights of the
Company by any Stockholder, the number of Shares shall be adjusted
appropriately, and this Agreement and the rights and obligations hereunder shall
attach to any additional shares of Common Stock or other securities or rights of
the Company issued to or acquired by any such Stockholder.
SECTION 7. Acquisition Proposals. From the date hereof until the
termination hereof, each of the Stockholders will not, and will cause their
respective officers, directors, partners, employees or other agents not to,
directly or indirectly, (i) take any action to solicit, initiate or encourage
any Acquisition Proposal (as defined in the Merger Agreement) provided that no
public announcement made by the Company pursuant to the last sentence of Section
6.08 of the Merger Agreement shall be deemed a violation of this Section 7, or
(ii) engage in discussions or negotiations with, or disclose any nonpublic
information relating to the Company or the Company Subsidiaries (as defined in
the Merger Agreement), respectively, or afford access to the properties, books
or records of the Company or any Company Subsidiary to any person in connection
with an Acquisition Proposal. Each Stockholder shall immediately cease and cause
to be terminated any existing discussions or negotiations with any persons
(other than each other, the Parent, the Sub and the Company) conducted by such
Stockholder heretofore with respect to any of the foregoing transactions
referenced in this Section 7.
SECTION 8. Voting of Shares. Each of the Stockholders agrees that,
during the time this Agreement is in effect, at any meeting of the stockholders
of the Company, however called, and in any action by written consent of the
stockholders of the Company, such Stockholder shall, to the extent
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applicable, (a) vote (or execute a consent in respect of) all of the Shares
owned by such Stockholder in favor of the Merger, the Merger Agreement (as
amended from time to time) and any of the transactions contemplated by the
Merger Agreement; (b) vote (or execute a consent in respect of) such Shares
against any action or agreement that would reasonably be expected to result in a
breach, in any material respect, of any covenant, representation or warranty or
any other obligation of the Company under the Merger Agreement; and (c) vote (or
execute a consent in respect of) such Shares against any action or agreement
that would reasonably be expected to impede, interfere with, delay or attempt to
discourage the Offer or Merger, including, but not limited to: (i) any
extraordinary corporate transaction (other than the Merger), such as a merger,
reorganization, recapitalization, or liquidation involving the Company or any
Company Subsidiary or any proposal made in opposition to or in competition with
the Merger, (ii) a sale or transfer of a material amount of assets of the
Company or any of its Subsidiaries; (iii) any change in the management or board
of directors of the Company, except as otherwise agreed to in writing by Parent;
(iv) any material change in the present capitalization or dividend policy of the
Company; or (v) any other material change in the corporate structure or business
of the Company or any Company Subsidiary.
SECTION 9. Further Assurances. Each of the Stockholders shall, upon
request of Parent or Sub, take such further actions as may reasonably be
necessary or desirable to carry out the provisions hereof, provided that the
Stockholders shall not be required to incur any additional costs or expenses or
receive less than the agreed price without their consent.
SECTION 10. Termination. This Agreement, and all rights and obligations
of the parties hereunder, shall terminate immediately upon the earlier of (i)
the acquisition by Parent, through Sub or otherwise, of all the Shares, (ii) the
termination of the Merger Agreement in accordance with its terms, (iii) the
Effective Time (as defined in the Merger Agreement), (iv) by any Stockholder, if
Parent or Sub breaches any of the covenants set forth in the last two sentences
of Section 3 hereof, or (v) by Parent if any Stockholder breaches any
representation or warranty in any material respect or any covenant, but only
with respect to such breaching Stockholder; provided, however, that Section 11
shall survive any termination of this Agreement.
SECTION 11. Expenses. All fees and expenses incurred by any one party
hereto shall be borne by the party incurring such fees and expenses.
SECTION 12. Public Announcements. Each of the Stockholders agrees that
it will not issue any press release or otherwise make any public statement with
respect to this Agreement or the transactions contemplated hereby without the
prior consent of Parent; provided, however, that such disclosure can be made
without obtaining such prior consent if (i) the disclosure is required by law,
and (ii) the party making such disclosure has first used its best efforts to
consult with the other party about the form and substance of such disclosure.
SECTION 13. Definitions. As used in this Agreement, the following terms
shall have the meanings indicated below:
"Contract" means any agreement, lease, evidence of indebtedness,
mortgage, indenture, security agreement or other contract (whether written or
oral).
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"Law" means any law, statute, rule, regulation, ordinance and other
pronouncement having the effect of law of the United States, any foreign country
or any domestic or foreign state, county, city or other political subdivision or
of any Governmental or Regulatory Authority.
"Liens" means any mortgage, pledge, assessment, security interest,
lease, lien, adverse claim, levy, charge or other encumbrance of any kind, or
any conditional sale Contract, title retention Contract or other Contract to
give any of the foregoing.
"Governmental or Regulatory Authority" means any court, tribunal,
arbitrator, authority, agency, commission, official or other instrumentality of
the United States, any foreign country or any domestic or foreign state, county,
city or other political subdivision.
"Order" means any writ, judgment, decree, injunction or similar order
of any Governmental or Regulatory Authority (in each such case whether
preliminary or final).
SECTION 14. Miscellaneous.
(a) All notices, claims, demands and other communications hereunder
shall be in writing and shall be deemed given upon (a) confirmation of receipt
of a facsimile transmission, (b) confirmed delivery by a standard overnight
carrier or when delivered by hand or (c) the expiration of five business days
after the day when mailed by registered or certified mail (postage prepaid,
return receipt requested), addressed to the respective parties at the following
addresses (or such other address for a party as shall be specified by like
notice):
(A) if to any or all the Mesirow Capital Partner signatories:
[Name of Entity]
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxx, Xx.
(B) if to Xxxxxx X. Xxxxxxxx or Xxxxx X. Xxxx, to:
Xx. Xxxxxxxx or Xx. Xxxx
[as appropriate]
c/o New West Eyeworks, Inc.
0000 Xxxx Xxxxxxxx Xxxxxx
Xxxxx, Xxxxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
with copies, in the case of both (A) or (B) to:
Xxxxxxx Xxxxxxx & Xxxxxx P.L.L.
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1375 East 0xx Xxxxxx
Xxx Xxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxxx, Xxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Xxxx X. Xxxxxx, Esq.
and
(C) if to Parent or Sub, to:
National Vision Associates, Ltd.
000 Xxxxxxx Xxxxxxx
Xxxxxxxxxxxxx, Xxxxxxx 00000-0000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Senior Vice President & General Counsel
with a copy to:
Xxxxxxxxxx Xxxxxxxx LLP
0000 Xxxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxx 00000-0000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Xxxxx X. Xxxxxxxx, Esq.
(b) The headings contained in this Agreement are for reference purposes
only and shall not affect in any way the meaning or interpretation of this
Agreement.
(c) This Agreement may be executed in two or more counterparts, each of
which shall be deemed an original but all of which shall be considered one and
the same agreement.
(d) This Agreement and the Merger Agreement constitute the entire
agreement, and supersede all prior agreements and understandings, whether
written and oral, among the parties hereto with respect to the subject matter
hereof.
(e) This Agreement shall be governed by, and construed in accordance
with, the laws of the State of Delaware without giving effect to the principles
of conflicts of laws thereof.
(f) Any legal action or proceeding with respect to this Agreement or
any document related hereto shall be brought in the Chancery Court of the State
of Delaware or the United States District Court for the State of Delaware, and
by execution and delivery of this Agreement or any document related hereto, each
of the parties hereto hereby consents, for itself and in respect of its
property, to this jurisdiction of the aforesaid courts. Each of the parties
hereto hereby irrevocably waives, to the extent permitted by applicable law, any
objection, including, without limitation, any objection to the laying of
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venue or based on the grounds of forum non conveniens, which such party may now
or hereafter have to the bringing of any action or proceeding in such
jurisdiction in respect of this Agreement or any document related hereto.
(g) Neither this Agreement nor any of the rights, interests or
obligations hereunder shall be assigned by any of the parties hereto (whether by
operation of law or otherwise) without the prior written consent of the other
parties, and any such purported assignment shall be null and void. This
Agreement will be binding upon, inure to the benefit of and be enforceable by,
the parties and their respective successors, and the provisions of this
Agreement are not intended to confer upon any person other than the parties
hereto any rights or remedies hereunder.
(h) If any term, provision, covenant or restriction herein is held by a
court of competent jurisdiction or other authority to be invalid, void or
unenforceable or against its regulatory policy, the remainder of the terms,
provisions, covenants and restrictions of this Agreement shall remain in full
force and effect and shall in no way be affected, impaired or invalidated.
(i) Each of the parties hereto acknowledges and agrees that in the
event of any breach of this Agreement, each non-breaching party would be
irreparably and immediately harmed and could not be made whole by monetary
damages. It is accordingly agreed that the parties hereto (i) will waive, in any
action for specific performance, the defense of adequacy of a remedy at law and
(ii) shall be entitled, in addition to any other remedy to which they may be
entitled at law or in equity, to compel specific performance of this Agreement.
(j) No amendment, modification or waiver in respect to this Agreement
shall be effective unless it shall be in writing and signed by each party
hereto; provided that Annex I hereto may be supplemented by Parent by adding the
name and other relevant information concerning any stockholder of the Company
who agrees to be bound by the terms of this Agreement without the agreement of
any other party hereto, and thereafter such added stockholder shall be treated
as a "Stockholder" for all purposes of this Agreement.
[remainder of page left blank intentionally]
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IN WITNESS WHEREOF, each of Parent, the Sub and the Stockholders have caused
this Agreement to be duly executed and delivered as of the date first written
above.
NATIONAL VISION ASSOCIATES, LTD.
By: /s/ Xxxxx X. Xxxxxx
------------------------------------------
Name: Xxxxx X. Xxxxxx
----------------------------------------
Title: Chairman & Chief Executive Officer
---------------------------------------
"SUB"
By: /s/ Xxxxx X. Xxxxxx
------------------------------------------
Name: Xxxxx X. Xxxxxx
----------------------------------------
Title: Chairman & Chief Executive Officer
---------------------------------------
STOCKHOLDERS:
/s/ Xxxxxx X. Xxxxxxxx
---------------------------------------------
Xxxxxx X. Xxxxxxxx
MESIROW CAPITAL PARTNERS II
By: /s/ X.X. Xxxxxx, Xx.
------------------------------------------
Name: Xxxxxxx X. Xxxxxx, Xx.
-------------------------------------
MESIROW CAPITAL PARTNERS III
By: /s/ Xxxxxxx X. Xxxxxx, Xx.
------------------------------------------
Name: Xxxxxxx X. Xxxxxx, Xx.
-------------------------------------
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MESIROW CAPITAL PARTNERS IV
By: /s/ X.X. Xxxxxx, Xx.
--------------------------------------
Name: Xxxxxxx X. Xxxxxx, Xx.
---------------------------------
MESIROW CAPITAL PARTNERS V
By: /s/ X.X. Xxxxxx, Xx.
--------------------------------------
Name: Xxxxxxx X. Xxxxxx, Xx.
---------------------------------
MESIROW CAPITAL PARTNERS VI
By: /s/ X.X. Xxxxxx, Xx.
--------------------------------------
Name: Xxxxxxx X. Xxxxxx, Xx.
---------------------------------
/s/ Xxxxx X. Xxxx
-----------------------------------------
Xxxxx X. Xxxx
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ANNEX I
STOCKHOLDER SHARES OF COMMON STOCK HELD DIRECTLY
------------------------------------- ------------------------------------
Xxxxx X. Xxxx 198,747
Mesirow Capital Partners II 64,519
Mesirow Capital Partners III 74,719
Mesirow Capital Partners V 333,386
Mesirow Capital Partners VI 170,135
Xxxxxx X. Xxxxxxxx 833,904
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1,675,410
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