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EXHIBIT 99.1
THIS AGREEMENT (the "Agreement") is entered into as of September 9, 1999,
by and among VISTA EYECARE, INC., a Georgia corporation (the "Company"), ITC
SERVICE COMPANY, a Delaware corporation ("ITC"), and XXXXXXXX X. XXXXXX, III
("Xxxxxx").
W I T N E S S E T H:
WHEREAS, the Company entered into a Rights Agreement with Wachovia Bank of
North Carolina, N.A. dated as of January 17, 1997, as subsequently amended (the
"Rights Agreement"), pursuant to which the ownership of 15% or more shares of
Common Stock by any Acquiring Person would trigger certain consequences; and
WHEREAS, a group of which ITC and Lanier are members (the "13D Group") has
previously requested of the Company that it be allowed to become the Beneficial
Owner of up to 25% of the outstanding shares of Common Stock without triggering
the provisions of the Rights Agreement, which request was granted by the Company
on April 22, 1999; and
WHEREAS, the Company has agreed to a further exception to the restrictions
of the Rights Agreement to increase such amount to 28%, on the condition that
ITC and Lanier enter into this Agreement providing for certain restrictions on
the voting of certain of such shares;
NOW, THEREFORE, in consideration of the foregoing premises and promises and
other good and valuable consideration, the sufficiency of which is hereby
acknowledged, the parties agree as follows:
1. Definitions
A. Undefined Capitalized Terms. Undefined capitalized terms
used in this Agreement (and the recitals thereto) shall have the
meanings given to them in the Rights Agreement.
B. Other. The following terms shall have the following
meanings in this Agreement:
"Covered Shares" means any Group Shares in excess of 25% of the
outstanding shares of Common Stock, but the number of Covered Shares
shall not exceed 3% of the outstanding shares of Common Stock.
"Group Shares" means Common Stock of which the 13D Group
is the Beneficial Owner.
2. During such time as there exist any Covered Shares, ITC and
Xxxxxx agree to vote a number of shares of Common Stock owned by either of them
equal to the number of such Covered Shares on any matters presented to the
shareholders of the Company in the same ratio as all shares voted by any holders
of Common Stock other than (a) any member of the 13D Group, and (b) any
Affiliates and Associates of the 13D Group, which for purposes of this Paragraph
of this Agreement shall include, without limitation, all directors and executive
officers of ITC and ITC Holding Company, Inc., the parent corporation of ITC.
3. Promptly upon the request of the Company, ITC and Xxxxxx agree
to irrevocably appoint the Company's designee as their lawful attorney and proxy
with full power of substitution for and in their respective names to vote (in
accordance with Paragraph 2 of this Agreement) shares owned
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by them equal to the number of Covered Shares, at all annual, special and other
meetings of shareholders of the Company (or by written consent in lieu thereof)
and at all other times the Covered Shares are required to be or may be voted.
ITC and Xxxxxx understand and agree that the appointment and proxy, if granted,
will be irrevocable and coupled with an interest and will not terminate by
operation of law. Any such appointment and proxy arrangement shall terminate (a)
to the extent that shares of Common Stock cease to be Covered Shares or (b) as
provided in Paragraph 4 of this Agreement.
4. ITC and Xxxxxx agree that they will not sell shares of Common
Stock in an amount that would cause them to collectively own less than the
number of Covered Shares without having first caused another person in the 13D
Group to have duly executed and delivered to the Company a copy of this
Agreement or a substantially similar agreement in form and substance
satisfactory to the Company, covering a number of shares that together with the
shares owned by ITC and Xxxxxx would equal at least the number of Covered
Shares. Upon the execution and delivery of such agreement, the appointment and
proxy arrangement described in Paragraph 3 of this Agreement shall terminate
with respect to the shares of Common Stock sold by ITC or Xxxxxx.
5. Nothing in this Agreement shall (a) be deemed an admission that
any Person is or is not an Affiliate or Associate of any other Person or (b)
preclude a Person from becoming or ceasing to be an Affiliate or Associate of
any other Person. Neither this Agreement nor any of its terms shall create any
implied or express obligation on the part of the Company to agree to make
further exceptions or take any additional action under the Rights Agreement.
6. All determinations as to the number of shares of Common Stock
outstanding shall be made in accordance with the provisions of the Rights
Agreement.
7. This Agreement shall be governed by, and construed and enforced
in accordance with, the laws of the State of Georgia, without regard to conflict
of laws principles. This Agreement may be executed in several counterparts, each
of which shall be deemed to be an original, and all of which together shall
constitute one and the same Agreement. All of the terms, provisions and
covenants of this Agreement shall be binding upon and inure to the benefit of
and be enforceable by the parties to this Agreement and their respective
successors and assigns.
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of
the date first above written.
VISTA EYECARE, INC.
By: /s/ Xxxxxxxx Xxxxxxx
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Title: Senior Vice President
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ITC SERVICE COMPANY
/s/ Xxxxxxx X. Xxxxx, III
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By: Xxxxxxx X. Xxxxx, III
Title: President
/s/ Xxxxxxxx X. Xxxxxx, III
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XXXXXXXX X. XXXXXX, III
