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EXHIBIT 6
[NEW WEST EYEWORKS LOGO]
March 11, 1998
Xx. Xxxxx X. Xxxxxx
Chairman, President and CEO
National Vision Associates, Ltd.
000 Xxxxxxx Xxxxxxx, Xxxxx X
Xxxxxxxxxxxxx, XX 00000-5750
Re: Confidentiality Agreement
Dear Xx. Xxxxxx:
We have advised you that X.X. Xxxxxxx & Company, Inc. ("X.X. Xxxxxxx &
Company") is acting on behalf of New West Eyeworks, Inc. (the "Company") and
that the Company has requested X.X. Xxxxxxx & Company to furnish you with
certain information that the Company has prepared to assist you in making an
evaluation of the business and prospects of the Company in connection with a
possible transaction or series of transactions involving the Company. As a
condition to the Company's furnishing such information or causing such
information to be furnished to you, you agree to treat confidentially such
information and any other information the Company or its agents furnish to you,
including but not limited to any information obtained by meeting with Company
personnel, whether furnished before or after the date of this letter (the
"Information"), together with all analyses, compilations, studies or other
documents or records prepared by you, your directors, officers, employees,
agents, advisors, subsidiaries, affiliates or representatives (collectively,
"Representatives"), that contain or otherwise reflect or are generated from such
Information (the "Studies" and, together with the Information, the "Material").
You agree that the Material will not be used other than in connection
with the purpose described above, and that the Material will be kept
confidential by you and your Representatives; provided, however, that (i) any
Material may be disclosed to your Representatives who need to know such Material
for the purpose described above (it being understood that such Representatives
shall be informed by you of the confidential nature of such Material and shall
agree to be bound by the terms of this letter agreement as if they were parties
hereto) and (ii) any disclosure of such Material may be made if required by law
or legal process (written notice of which shall be given to the Company as
promptly as practicable prior to the disclosure thereof) or if an executive
officer of the Company consents in writing to such disclosure.
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March 11, 1998
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You and your Representatives shall refrain from using the Material in
any way detrimental to the Company, and from disclosing or making available any
Material to any other person for any purpose, other than as specifically
provided herein. You agree to be responsible for enforcing the terms of this
letter agreement as to your Representatives and the confidentiality of the
Material and to take such action, legal or otherwise, to the extent necessary or
appropriate to cause them to comply with the terms and conditions of this letter
agreement and thereby prevent any disclosure of the Material by any of your
Representatives (including but not limited to all actions that you would take to
protect your own trade secrets and confidential information).
Without the prior consent of the Company, you will not, and will direct
your Representatives not to, disclose to any person the fact that the Material
has been made available to you or that you have inspected any portion of the
Material or the fact that discussions between the Company and you are taking
place or any facts with respect to these discussions, including the status
thereof. Notwithstanding the foregoing, you may make any such disclosure which,
based on the written determination of independent outside counsel, is required
or advisable under applicable laws or any securities listing agreement to which
you are a party. In no event will you make any such disclosure without notifying
the Company, in writing, prior to your anticipated disclosure, allowing the
Company reasonable time under the circumstances to make its own disclosure and
to co-ordinate the release of its disclosure, if any, with yours. The term
"person" as used in this letter shall be broadly interpreted to include, without
limitation, any individual, group or entity.
The term "Information" does not include information that (i) becomes
generally available to the public other than as a result of a disclosure by you
or your Representatives, (ii) was available to you on a non-confidential basis
prior to its disclosure to you by the Company or its representatives or (iii)
becomes available to you on a non-confidential basis from a source other than
the Company or its representatives, provided that such source is not bound by a
confidentiality agreement with the Company or its representatives or otherwise
prohibited from transmitting the Information to you by a contractual, legal or
fiduciary obligation. The fact that Information included in the Material is or
becomes otherwise available to you and your Representatives pursuant to clauses
(i), (ii) or (iii) of this paragraph shall not relieve you and your
Representatives of the prohibitions of the preceding paragraphs or, with respect
to the balance of the Material, the confidentiality provisions of this letter
agreement.
If you or any of your Representatives are requested or required as a
result of a judicial or regulatory proceeding (by oral questions,
interrogatories, requests for information or documents, subpoena, civil
investigative demand or similar process) to disclose or make any disclosure
contrary to the terms of this letter agreement, you agree to provide the Company
with prompt notice thereof so that the Company may seek an appropriate
protective order. If a protective order has not been
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March 11, 1998
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obtained after the Company has had sufficient time to secure the same in light
of the circumstances under which such order is sought, and you or any of your
Representatives are compelled to disclose any Material to any tribunal,
regulatory authority or agency or third party claimant or else stand liable for
contempt or suffer any similar censure, sanction or penalty, then you and such
Representatives may disclose such information to the extent required to such
tribunal, regulatory authority or agency or third party claimant without
liability hereunder.
All Material and all copies, extracts and other reproductions thereof,
including copies in the possession or control of any of your Representatives, is
and shall remain the property of the Company. If you do not consummate a
transaction or series of transactions with the Company or if the Company so
requests, you shall deliver to the Company, or destroy at the Company's option,
all such Material as promptly as practicable. You agree to provide the Company
with a written certification of the delivery to the Company, or the destruction,
of all such Material upon receipt of a written request therefor from the
Company.
Although the Company will endeavor to provide you with Information that
is known to it and that it believes to be accurate and relevant for the purposes
of your investigation of a possible transaction or series of transactions with
the Company, you understand that neither the Company nor X.X. Xxxxxxx & Company
makes any representation, warranty or covenant, express or implied, as to the
accuracy or completeness of any of the Material. Only those particular
representations, warranties and covenants that the Company may make to you in
any definitive agreement relating to such transaction or transactions (a
"Definitive Agreement"), when, as and if executed, and subject to such
limitations and restrictions as may be specified therein, shall have any legal
effect. You therefore agree to rely solely on your own investigation in
evaluating such transaction or transactions and that neither the Company nor
X.X. Xxxxxxx & Company nor any of their respective directors, officers,
employees, agents, stockholders, advisors, subsidiaries, affiliates or
representatives shall have any liability to you or any of your Representatives
resulting from the use of the Material by you or your Representatives. In
addition, the Company and X.X. Xxxxxxx & Company expressly reserve the right,
without giving reasons therefor, to terminate discussions with you and any and
all other persons, to reject any and all proposals, and to negotiate with any
person, with respect to a possible transaction or series of transactions
involving the Company.
For a period of one year from the date of this letter agreement, and
other than pursuant to the terms of a Definitive Agreement between you and the
undersigned, you and your Representatives shall not, directly or indirectly, and
you shall cause any person controlled by you not to:
(i) acquire, or offer to agree to acquire, directly or
indirectly, by purchase or otherwise, any securities of the Company
(including but not limited to direct or indirect rights or options to
acquire any securities of the Company), except by way of stock
dividends or other distributions made on a pro rata basis with respect
to securities of the Company acquired by you prior to the date of this
letter agreement;
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(ii) solicit proxies or consents or become a "participant" in
a "solicitation" (as such terms are defined in Regulation 14A under the
Securities Exchange Act of 1934, as amended) of proxies or consents
with respect to securities of the Company with regard to any matter;
(iii) seek to control or influence the management, Board of
Directors or policies of the Company, or seek to advise, encourage or
influence any person with respect to the voting of any securities of
the Company, or induce, attempt to induce or in any manner assist any
other person in initiating any stockholder proposal or a tender or
exchange offer for securities of the Company or any change of control
of the Company, or for the purpose of convening a stockholders' meeting
of the Company;
(iv) acquire or agree to acquire, by purchase or otherwise,
more than 1% of any class of equity securities of any entity which,
prior to the time you acquire more than 1% of such class, is publicly
disclosed (by filing with the Securities and Exchange Commission or
otherwise), or is otherwise known to you, to be the beneficial owner of
more than 5% of the outstanding common stock of the Company;
(v) make any public announcement (except in accordance with
the terms of this letter agreement) or make any written or oral
proposal or invitation to discuss any possibility, intention, plan or
arrangement relating to a tender or exchange offer for securities of
the Company or a business combination (or other similar transaction
which would result in a change of control), sale of securities or
assets, liquidation or other extraordinary corporate transaction
between you or any of your Representatives and the Company or take any
action that might require the Company to make a public announcement
regarding any of the foregoing;
(vi) deposit any securities of the Company in a voting trust
or subject any securities of the Company to any arrangement or
agreement with respect to the voting of securities of the Company; or
(vii) form, join or in any way participate in a partnership,
limited partnership, syndicate or other group (or otherwise act in
concert with any other person) for the purpose of acquiring, holding,
voting or disposing of securities of the Company or taking any other
actions restricted or prohibited under clauses (i) through (vi) above,
or announce an intention to do, or enter into any arrangement or
understanding with others to do, any of the actions restricted or
prohibited under clauses (i) through (vi) above.
In addition, you hereby acknowledge that you are aware, and that you
will advise your Representatives who are informed as to the matters which are
the subject of this letter agreement, that the United States securities laws
prohibit any person who has material, non-public information concerning the
matters that are the subject of this letter agreement from purchasing or selling
securities of the Company or any other entity that may become a party to a
transaction of a type
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contemplated by this letter agreement or from communicating such information to
any other person under circumstances in which it is reasonably foreseeable that
such person is likely to purchase or sell such securities.
It is agreed that you shall not, for a period of two years from the
date of this letter agreement, directly or indirectly hire, solicit or encourage
any executive employee of the Company or any subsidiary or affiliate of the
Company to either leave the employment or cease working for the Company and/or
the subsidiary and/or affiliate. For the purposes hereof, executive employees
means all officers and directors of the Company. Except with the written
permission of the chairman of the Company, you agree that neither you nor your
Representatives shall contact any officers, employees or affiliates of the
Company, directly or indirectly, with respect to any of the Material or with
respect to the possible transaction or series of transactions involving the
Company.
It is further understood and agreed that no failure or delay in
exercising any right, power or privilege hereunder shall operate as a waiver
thereof, nor shall any single or partial exercise thereof preclude any other or
further exercise thereof or the exercise of any right, power or privilege
hereunder.
It is further understood and agreed that money damages would not be a
sufficient remedy for any breach of this letter agreement by you and that the
Company shall be entitled to specific performance and injunctive relief as
remedies for any such breach. Such remedies shall not be deemed to be the
exclusive remedy for your breach of this letter agreement but shall be in
addition to all other remedies available to the Company at law or in equity. In
the event either party is required to engage in legal proceedings to protect its
rights under this letter agreement, and either party or any of their
Representatives is found to be in violation of the terms of this letter
agreement, the losing party shall be entitled to reasonable legal fees and
disbursements incurred by it in such proceedings.
This letter agreement may be waived, amended or modified only by an
instrument in writing signed by the party against which such waiver, amendment
or modification is sought to be enforced. If any provision of this letter
agreement shall for any reason be adjudged to be void, invalid or unenforceable,
the remainder of this letter agreement shall continue and remain in full force
and effect. You shall not be entitled to assign this letter agreement without
the prior written consent of the Company. This letter agreement constitutes the
entire agreement between the parties regarding the treatment of the Material and
shall inure to and be binding upon the parties and their respective successors
and permitted assigns. This letter agreement shall be construed and enforced in
accordance with the domestic substantive laws of the State of Delaware without
giving effect to any choice or conflict of laws provision or rule that would
cause the application of the domestic substantive laws of any other state, shall
remain in full force and effect for a period of two (2) years following the
consummation or termination of your evaluation of the business and prospects of
the Company or of any proposed transaction or series of transactions between you
and the Company.
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March 11, 1998
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This letter agreement may be executed by any one or more of the parties
hereto in any number of counterparts, each of which shall be deemed to be an
original, but all such counterparts shall together constitute one and the same
instrument. The execution of counterparts shall not be deemed to constitute
delivery of this letter agreement by any party until all of the parties have
executed and delivered their respective counterparts.
Very truly yours,
NEW WEST EYEWORKS, INC.
By: /s/ Xxxxx X. Xxxxxx
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Xxxxx X. Xxxxxx, its Secretary
AGREED TO AND ACCEPTED BY:
NATIONAL VISION ASSOCIATES, LTD.
By: /s/ Xxxxxxxx Xxxxxxx
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Name: Xxxxxxxx Xxxxxxx
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Title: Vice President General Counsel
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