EXHIBIT 1
EXECUTION COPY
VOTING AGREEMENT
This VOTING AGREEMENT (the "AGREEMENT"), dated as of this 23rd day of
January, 2004, is entered into by and among Colorado Acquisition Corp., a
Delaware corporation (together with its successors or assigns, "PURCHASER"), and
Xxxxx Xxxxxxx (the "STOCKHOLDER").
W I T N E S S E T H :
WHEREAS, Purchaser, Luxottica Group S.p.A., and Xxxx National
Corporation (the "COMPANY") have entered into an Agreement and Plan of Merger of
even date herewith (as the same may be amended from time to time, the "MERGER
AGREEMENT"), pursuant to which the Purchaser shall be merged (the "MERGER") with
and into the Company, with the Company being the surviving corporation of the
Merger, upon the terms and subject to the conditions set forth therein;
WHEREAS, as of the date hereof, the Stockholder is the record and
Beneficial Owner of the number of shares of common stock, par value $0.001 per
share, of the Company (the "COMPANY COMMON STOCK") set forth on Schedule I
attached hereto (the "SHARES"); and
WHEREAS, as a condition to its willingness to enter into the Merger
Agreement, Purchaser has required that the Stockholder agree, and the
Stockholder is willing to agree, to the matters set forth herein, subject to the
terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the foregoing and the agreements
set forth below, the parties hereto agree as follows:
1. Definitions. Capitalized terms not expressly defined in this
Agreement shall have the meanings ascribed to them in the Merger Agreement. For
purposes of this Agreement:
(a) "Affiliate" of any Person means another Person that
directly or indirectly, through one or more intermediaries, controls,
is controlled by, or is under common control with, such first Person;
provided that the Company shall not be considered an Affiliate of the
Stockholder.
(b) "Beneficially Own" or "Beneficial Ownership" with respect
to any securities shall mean having voting power with respect to such
securities (as determined pursuant to Rule 13d-3(a)(l) under the
Securities Exchange Act of 1934, as amended (the "EXCHANGE ACT")),
including pursuant to any agreement, arrangement or understanding,
whether or not in writing.
(c) "Person" shall mean an individual, corporation, limited
liability company, partnership, joint venture, association, trust,
unincorporated organization or other entity.
2. Voting Agreement. From the date of this Agreement and ending on the
earliest of (i) the date the Merger Agreement is terminated in accordance with
its terms, (ii) the first date
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immediately following the date on which the Company's stockholders have adopted
the Merger Agreement, (iii) the date on which the Board of Directors of the
Company has modified or withdrawn the Company Board Recommendation pursuant to
Section 5.07(c) of the Merger Agreement as a result of receipt by the Company of
a Superior Acquisition Proposal, (iv) the date on which the Merger Agreement is
amended, or any provision thereof is waived, in either case having a material
adverse effect on the Stockholder, provided that any such amendment or waiver
shall not have been approved or consented to by the Stockholder in his capacity
as a director or officer of the Company, and, provided, further, that
Stockholder shall notify Parent of his determination that the Termination Date
has occurred under this clause (iv), within three business days after he first
becomes aware of any such modification or waiver, setting forth, in reasonable
detail, the basis for his determination, (v) the date on which the Purchaser is
in material violation of the terms of this Agreement, and (vi) January 31, 2005
(the earliest of such dates, the "TERMINATION DATE"), the Stockholder hereby
agrees to vote (or cause to be voted) all of the Shares (and any and all
securities issued or issuable in respect thereof) which such Stockholder is
entitled to vote (or to provide his written consent thereto), at any annual,
special or other meeting of the stockholders of the Company, and at any
adjournment or adjournments or postponements thereof, or pursuant to any consent
in lieu of a meeting or otherwise:
(a) in favor of the Merger and the approval and adoption of
the Merger Agreement; and
(b) except for all such actions which the Company may
undertake under the Merger Agreement, against (i) any extraordinary
corporate transaction, such as an acquisition, merger, rights offering,
tender offer, reorganization, recapitalization, sale of substantially
all of the assets or liquidation involving the Company or any of its
Subsidiaries, including, without limitation, an Acquisition Proposal,
other than the Merger, (ii) any action that would result in a change in
those persons constituting a majority of the Board of Directors of the
Company, other than in connection with an annual meeting of the
stockholders of the Company with respect to the slate of directors
proposed by the incumbent Board of Directors of the Company (in which
case he agrees to vote for the slate proposed by the incumbent Board)
or (iii) any action that would materially impede, interfere with,
delay, postpone or adversely affect in any material respect the Merger
and the transactions contemplated by the Merger Agreement.
3. Covenants, Representations and Warranties of the Stockholder and
Purchaser.
(a) The Stockholder hereby represents, warrants and covenants
to Purchaser as follows:
(i) Ownership. As of the date of this Agreement,
except as otherwise set forth in Part A of Schedule 1, the
Stockholder is the record and Beneficial Owner of the number
of issued and outstanding Shares set forth on Part A of
Schedule I hereto and the stock options set forth on Part B of
Schedule I hereto. As of the date of this Agreement, the
Shares set forth on Part A of Schedule I hereto constitute all
of the issued and outstanding Shares owned of record or
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Beneficially Owned by the Stockholder. The Stockholder has the sole
power to agree to all of the matters set forth in this Agreement, in
each case with respect to all of the Shares set forth on Part A of
Schedule I hereto, with no material limitations, qualifications or
restrictions on such rights, subject to applicable securities laws and
the terms of this Agreement.
(ii) Power; Binding Agreement. The Stockholder has the legal
capacity, power and authority to enter into and perform all of the
Stockholder's obligations under this Agreement. This Agreement has been
duly and validly executed and delivered by the Stockholder and,
assuming due and valid execution and delivery of the Purchaser,
constitutes a valid and binding agreement of the Stockholder,
enforceable against the Stockholder in accordance with its terms
(except as such enforceability may be subject to bankruptcy,
insolvency, reorganization, moratorium or other similar laws relating
to or affecting creditors' rights generally and by general equitable
principles (regardless of whether enforceability is considered in a
proceeding in law or at equity)). Except as may otherwise be set forth
in Part A to Schedule I, there is no beneficiary or holder of a voting
trust certificate or other interest of any trust of which the
Stockholder is trustee whose consent is required for the execution and
delivery of this Agreement or the performance by the Stockholder of his
obligations hereunder. If the Stockholder is married and the
Stockholder's Shares constitute community property, this Agreement has
been duly authorized, executed and delivered by, and constitutes a
valid and binding agreement of, the Stockholder's spouse, enforceable
against such person in accordance with its terms (except as such
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization or similar laws affecting creditors' rights generally
and by general equitable principles (regardless of whether
enforceability is considered in a proceeding in equity or at law)).
(iii) No Conflicts. As of the date of this Agreement, except
as may otherwise be set forth in Part A to Schedule I, the Stockholder
is not a party to any voting agreement with respect to the Shares or
any other agreement that would materially restrict the Stockholder's
ability to perform his obligations hereunder. As of the date of this
Agreement, except for filings under the Securities Exchange Act of
1934, as amended (the "EXCHANGE ACT"), if applicable, to the knowledge
of the Stockholder, no filing with, and no permit, authorization,
consent or approval of, any state or Federal public body or authority
is necessary for the execution of this Agreement by the Stockholder and
the performance by the Stockholder of his obligations hereunder, except
where the failure to obtain such consent, permit, authorization,
approval or filing would not materially interfere with the
Stockholder's ability to perform his obligations hereunder, and none of
the execution and delivery of this Agreement by the Stockholder, the
consummation by the Stockholder of the transactions contemplated hereby
or compliance by the Stockholder with any of the provisions hereof
shall (A) result in a violation or breach of, or constitute (with or
without notice or lapse of time or both) a default
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(or give rise to any third party right of termination, cancellation,
material modification or acceleration) under any of the terms,
conditions or provisions of any note, bond, mortgage, indenture,
license, contract, commitment, arrangement, understanding, agreement or
other instrument or obligation of any kind to which the Stockholder is
a party or by which the Stockholder or any of his properties or assets
may be bound, or (B) violate any order, writ, injunction, decree,
judgment, order, statute, proceeding, rule or regulation applicable to
the Stockholder or any of the Shares, in each such case except to the
extent that any conflict, breach, default or violation would not
interfere with the ability of the Stockholder to perform his
obligations hereunder.
(iv) No Encumbrances. Except as required by Section 2, at all
times during the term hereof, all of the Shares will be held by the
Stockholder, or by a nominee or custodian for the direct or indirect
benefit of the Stockholder, or by a family member or Affiliate of the
Stockholder (subject to the conditions set forth in clause (vi) below),
free and clear of all liens, claims, security interests, proxies,
voting trusts or agreements, understandings or arrangements or any
other encumbrances whatsoever, except for any liens, claims,
understandings or arrangements that do not limit or impair the
Stockholder's ability to perform his obligations under this Agreement.
(v) Restriction on Transfer, Proxies and Non-Interference.
Except as otherwise contemplated by the Merger Agreement or this
Agreement or as required by court order, from and after the date of
this Agreement and ending on the Termination Date, the Stockholder
shall not, directly or indirectly, without the consent of Purchaser in
respect of any Acquisition Proposal or otherwise: (A) offer for sale,
sell, transfer, tender, pledge, encumber, assign or otherwise dispose
of, or enter into any contract, option or other arrangement or
understanding with respect to or consent to the offer for sale, sale,
transfer, tender, pledge, encumbrance, assignment or other disposition
of (each, a "TRANSFER"), any or all of the Shares, or any interest
therein, except for the exercise of any stock options, (B) grant any
proxies or powers of attorney, deposit any Shares into a voting trust
or enter into a voting agreement with respect to any Shares or (C)
enter into any agreement or arrangement providing for any of the
actions described in clause (A) or (B) above; provided, however, the
Stockholder may, without the consent of Purchaser, Transfer his Shares
to members of his family and/or Affiliates; provided, further, however,
that any such transferee shall have delivered to Purchaser, not later
than concurrently with any such Transfer, a written instrument, in form
and substance reasonably satisfactory to Purchaser, to the effect that
such transferee agrees to be bound by the terms of this Agreement,
whereupon such transferee shall be deemed to be a "Stockholder" for all
purposes of this Agreement.
(vi) Further Assurances. From time to time, at Purchaser's
reasonable request, to the extent not entailing other than de minimus
expense, the
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Stockholder shall without further consideration execute and deliver
such additional documents as may be reasonably necessary to consummate
and make effective, in the most expeditious manner practicable, the
agreements set forth in Sections 2 and 3(a) of this Agreement;
provided, that no such documents shall expand or otherwise alter the
obligations of the Stockholder hereunder.
(b) Purchaser hereby represents, warrants and covenants to the
Stockholder as follows:
(i) Organization, Standing and Corporate Power. Purchaser is
duly organized, validly existing and in good standing under the laws of
its jurisdiction of organization, with full power and authority to own
its properties and carry on its business as presently conducted.
Purchaser has the necessary power and authority to enter into and
perform all of its obligations under this Agreement and to consummate
the transactions contemplated hereby.
(ii) Execution, Delivery and Performance by Purchaser. The
execution, delivery and performance of this Agreement and the
consummation of the transactions contemplated hereby have been duly and
validly authorized by Purchaser, do not require any authorization,
consent or approval of, exemption or other action by, or notice to, any
third party and Purchaser has taken all other actions required by law
and its organizational documents to consummate the transactions
contemplated by this Agreement. This Agreement has been duly and
validly executed and delivered by the Purchaser and, assuming due and
valid execution and delivery of the Stockholder, constitutes the valid
and binding obligation of Purchaser and is enforceable in accordance
with its terms, except as enforceability may be subject to bankruptcy,
insolvency, reorganization, moratorium or other similar laws relating
to or affecting creditors' rights generally and by general equitable
principles (regardless of whether enforceability is considered in a
proceeding in law or at equity).
4. Recapitalization; Option Exercise. In the event of a stock dividend or
distribution, or any change in the Shares (or any class thereof) by reason of
any split-up, recapitalization, combination, exchange of shares or the like, the
term "Shares" shall include, without limitation, all such stock dividends and
distributions and any shares into which or for which any or all of the Shares
(or any class thereof) may be changed or exchanged and, in each case, that are
entitled to vote at a meeting of the Company's stockholders as may be
appropriate to reflect such event. The term "Shares" shall also include any
other or additional shares of Company Common Stock, shares of Series A Junior
Participating Preferred Stock, or any other shares of capital stock or equity
entitled to vote at a meeting of the Company's stockholders, acquired and owned
of record or beneficially by the Stockholder after the date of this Agreement
and before the Termination Date, including, without limitation, shares acquired
in connection with the exercise of Company Options and Company Stock-Based
Awards. Notwithstanding the foregoing, or anything in this Agreement to the
contrary, the term "Shares" shall not include any shares of Company Common Stock
not beneficially owned by the Stockholder, including
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any shares of Company Common Stock with respect to which the Stockholder has
been appointed a proxy in connection with any proxy solicitation by the Company
and any Shares underlying any options set forth in part B of the Schedule
hereto, to the extent such options have not been exercised; and nothing
contained herein shall require Stockholder to exercise any options or other
derivative securities pursuant to which Shares may be issued.
5. Stockholder Capacity. The Stockholder does not make any agreement or
understanding herein in the Stockholder's capacity as a director or officer of
the Company. The Stockholder executes this Agreement solely in his capacity as a
record owner and/or Beneficial Owner of the Shares and nothing herein shall
limit or affect any actions taken by the Stockholder or any designee of the
Stockholder in his capacity as an officer or director of the Company or any of
its subsidiaries.
6. Irrevocable Proxy. The Stockholder hereby irrevocably appoints the
Purchaser as the attorney and proxy of such Stockholder, with full power of
substitution, to vote, and otherwise act (by written consent or otherwise) with
respect to all Shares that such Stockholder is entitled to vote at any meeting
of stockholders of the Company (whether annual, special or other meeting and
whether or not an adjourned or postponed meeting) or consent in lieu of any such
meeting or otherwise, to vote such Shares as set forth in Section 2 hereof;
provided that in any such vote or other action pursuant to such proxy, the
Purchaser shall not have the right (and such proxy shall not confer the right)
to vote to reduce the Merger Price or to otherwise modify or amend the Merger
Agreement to reduce the rights or benefits of the Company or any stockholders of
the Company (including the Stockholder) under the Merger Agreement or to reduce
the obligations of Purchaser thereunder; and provided further, that this proxy
shall irrevocably cease to be in effect on the Termination Date. THIS PROXY AND
POWER OF ATTORNEY IS IRREVOCABLE AND COUPLED WITH AN INTEREST. The Stockholder
hereby revokes, effective upon the execution and delivery of this Agreement by
the parties hereto, all other proxies and powers of attorney with respect to the
Shares that he may have heretofore appointed or granted, and no subsequent proxy
or power of attorney (except in furtherance of his obligations under Section 2
hereof) shall be given or written consent executed (and if given or executed,
shall not be effective) by him with respect thereto so long as this Agreement
remains in effect. The Stockholder shall forward to the Purchaser any proxy
cards that the Stockholder receives with respect to the Merger Agreement.
7. Miscellaneous.
(a) Entire Agreement. This Agreement constitutes the entire
agreement between the parties with respect to the subject matter hereof
and supersedes all other prior agreements and understandings, both
written and oral, between the parties with respect to the subject
matter hereof.
(b) Amendments, Waivers, Etc. This Agreement may not be
amended, changed, supplemented, waived or otherwise modified or
terminated, except upon the execution and delivery of a written
agreement executed by the parties hereto.
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(c) Notices. All notices, requests, claims, demands and other
communications hereunder shall be in writing and shall be given (and
shall be deemed to have been duly received with proof of delivery) by
overnight courier or facsimile to the respective parties as follows:
If to Stockholder: Xxxxx Xxxxxxx
Xxxx National Corporation
0000 Xxxxxxxxxx Xxxxxxx
Xxxxxxxxx, Xxxx 00000
Facsimile: (000)000-0000
with a copy to:
Benesch, Friedlander, Xxxxxx & Aronoff LLP
0000 XX Xxxxx
000 Xxxxxx Xxxxxx
Xxxxxxxxx, Xxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxxxx X. Xxxxxxx
and
Wachtell, Lipton, Xxxxx & Xxxx
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: (000)000-0000
Attention: Xxxx X. Xxxxxxxx
If to Purchaser: Colorado Acquisition Corp.
00 Xxxxxx Xxxx Xxxxx
Xxxx Xxxxxxxxxx, Xxx Xxxx 00000
Facsimile: (000)000-0000
Attention: Xxxxxxx X. Xxxxx, Secretary
and General Counsel
with a copy to:
Winston & Xxxxxx
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxxx Xxxxxxxxx
Facsimile No.: (000) 000-0000
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or to such other address as the person to whom notice is given may have
previously furnished to the others in writing in the manner set forth
above.
(d) Severability. Whenever possible, each provision or portion
of any provision of this Agreement will be interpreted in such manner
as to be effective and valid under applicable law but if any provision
or portion of any provision of this Agreement is held to be invalid,
illegal or unenforceable in any respect under any applicable law or
rule in any jurisdiction, such invalidity, illegality or
unenforceability will not affect any other provision or portion of any
provision in such jurisdiction, and this Agreement will be reformed,
construed and enforced in such jurisdiction as if such invalid, illegal
or unenforceable provision or portion of any provision had never been
contained herein.
(e) Specific Performance. The Stockholder recognizes and
acknowledges that a breach by the Stockholder of any covenants or
agreements contained in this Agreement will cause the Purchaser to
sustain damages for which it would not have an adequate remedy at law
for money damages, and therefore the Stockholder agrees that in the
event of any such breach, or threatened breach, Purchaser shall be
entitled to seek the remedy of specific performance of such covenants
and agreements and injunctive and other equitable relief in addition to
any other remedy to which it may be entitled, at law or in equity, and
that any requirement for the posting of a bond or similar requirement
in any such proceeding is hereby irrevocably waived.
(f) Assignability. Except as set forth in Section 3(a)(v),
neither this Agreement nor any right or obligation hereunder is
assignable in whole or in part, whether by operation of law or
otherwise, by any party without the express written consent of the
other parties hereto and any such attempted assignment shall be void
and unenforceable; provided, however, that Purchaser may transfer or
assign this Agreement or any right or obligation hereunder to any of
its Affiliates or any financing source at any time prior to the
Termination Date; and, provided further, that, in the event of the
death or disability involving the appointment of a legal guardian or
similar representative of the Stockholder, or of a member of his family
or an Affiliate who is an individual to whom the Stockholder made a
Transfer of his Shares as permitted by the provisos set forth in
Section 3(a)(v), the rights and obligations of the Stockholder or such
member of his family or Affiliate, as the case may be, hereunder shall,
upon such death or the appointment of such legal guardian or
representative, be deemed to have been assigned and delegated to, and
shall thereupon inure to the benefit of and be binding upon, the heirs
and/or legal representative, or such legal guardian or representative,
of the Stockholder, member of his family or Affiliate, as the case may
be. This Agreement and the rights and obligations hereunder shall be
binding upon, and shall inure to the benefit of, the parties hereto,
permitted assignees and, in the case of Purchaser, its successor, and
no other person shall acquire or have any rights under or by virtue of
this Agreement.
(g) Remedies Cumulative. All rights, powers and remedies
provided under this Agreement or otherwise available in respect hereof
at law or in equity shall be
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cumulative and not alternative, and the exercise of any thereof by any
party shall not preclude the simultaneous or later exercise of any
other such right, power or remedy by such party.
(h) No Waiver. The failure of any party hereto to exercise any
right, power or remedy provided under this Agreement or otherwise
available in respect hereof at law or in equity, or to insist upon
compliance by any other party hereto with its obligations hereunder,
and any custom or practice of the parties at variance with the terms
hereof, shall not constitute a waiver by such party of its right to
exercise any such or other right, power or remedy or to demand such
compliance.
(i) No Third Party Beneficiaries. This Agreement is not
intended to be for the benefit of, and shall not be enforceable by, any
person or entity who or which is not a party hereto or a permitted
assignee thereof.
(j) Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Delaware,
regardless of the laws that might otherwise govern under applicable
principles of conflicts of laws thereof.
(k) Jurisdiction. Each of the parties hereto (i) consents to
submit itself to the personal jurisdiction of the Court of Chancery of
the State of Delaware or any federal court within the District of
Delaware in the event any dispute arises out of this Agreement or any
of the transactions contemplated by this Agreement, (ii) agrees that it
will not attempt to deny or defeat such personal jurisdiction by motion
or other request for leave from any such court, (iii) agrees that it
will not bring any action relating to this Agreement or any of the
transactions contemplated hereby in any court other than the Court of
Chancery of the State of Delaware or any federal court within the
District of Delaware, (iv) consents to service of process by first
class certified mail, return receipt requested, postage prepaid, or by
overnight courier to the address at which such party is to receive
notice and (v) waives any objection to the laying of venue with respect
to such dispute in the Court of Chancery of the State of Delaware or
any federal court within the District of Delaware and waives and agrees
not to plead or claim in any such court that any such dispute brought
in any such court has been brought in an inconvenient forum.
(l) Descriptive Headings. The descriptive headings used herein
are inserted for convenience of reference only and are not intended to
be part of or to affect the meaning or interpretation of this
Agreement.
(m) Counterparts. This Agreement may be executed in
counterparts, each of which shall be deemed to be an original, but all
of which, taken together, shall constitute one and the same Agreement.
This Agreement shall not be effective as to any party hereto until such
time as this Agreement or a counterpart thereof has been executed and
delivered by each party hereto, provided that upon delivery of an
executed counterpart by facsimile, this Agreement shall be deemed
effective.
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(n) No Agency. Nothing herein shall be deemed to create any
agency or partnership relationship between the parties hereto.
8. Termination. This Agreement shall terminate without any further
action on the part of any party hereto on the Termination Date.
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VOTING AGREEMENT SIGNATURE PAGE
IN WITNESS WHEREOF, this Agreement has been duly executed and delivered
by the Stockholder and a duly authorized officer of Purchaser on the day and
year first written above.
PURCHASER:
COLORADO ACQUISITION CORP.
By: -s- Xxxx Xxxxxxxx
--------------------------------------
Name: Xxxx Xxxxxxxx
Title: Chief Financial Officer and Treasurer
STOCKHOLDER:
-s- Xxxxx Xxxxxxx
----------------------------------------
Xxxxx Xxxxxxx
SCHEDULE I
Part A
Name of Owner Shares
------------- ------
Xxxxx Xxxxxxx 791,085*
*Of these shares, 229,100 shares are held in street name at Northern Trust
Corporation (66,058 for Xx. Xxxxxxx'x revocable trust, 30,000 for Xx. Xxxxxxx'x
individual retirement account and 133,042 for a voting trust of which Xx.
Xxxxxxx is the trustee, as disclosed in the Company's Proxy Statement dated June
4, 2003) and 36,985 shares are held in street name at Xxxxxxx Xxxxx for Xx.
Xxxxxxx'x Xxxxx plan. The remaining 525,000 shares are held of record in Xx.
Xxxxxxx'x name. Although Xx. Xxxxxxx sold the economic interest in the shares
held for the voting trust, he retains sole voting power with respect to those
shares.
Part B
Name of Owner Other Securities
------------- ----------------
Xxxxx Xxxxxxx 562,500 Options
