- Current report filing (8-K)
December 18 2009 - 5:02PM
Edgar (US Regulatory)
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington,
D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of
the Securities Exchange Act of 1934
Date of report (Date of earliest event reported):
December 15,
2009
FGX INTERNATIONAL HOLDINGS LIMITED
(Exact Name of
Registrant as Specified in its Charter)
BRITISH VIRGIN ISLANDS
(State or Other
Jurisdiction of
Incorporation)
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001-33760
(Commission File
Number)
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98-0475043
(I.R.S. Employer Identification No.)
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500 George Washington Highway
Smithfield, Rhode Island
(Address of
Principal Executive Offices)
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02917
(Zip Code)
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Registrants telephone number including area code:
(401) 231-3800
Not
Applicable
(Former Name or Address, if Changed Since Last Report)
Check the appropriate box below if the Form 8-K
filing is intended to simultaneously satisfy the filing obligation of the
registrant under any of the following provisions:
o
Written communications
pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
o
Soliciting material pursuant
to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
o
Pre-commencement
communications pursuant to Rule 14d-2(b) under the Exchange Act (17
CFR 240.14d-2(b))
o
Pre-commencement
communications pursuant to Rule 13e-4(c) under the Exchange Act (17
CFR 240.13e-4(c))
Section 1
Registrants Business and Operations
Item
1.01. Entry into a Material Definitive
Agreement.
On
December 15, 2009, FGX International Holdings Limited (the Company),
Essilor International (Essilor) and 1234 Acquisition Sub Inc., an indirect
wholly-owned subsidiary of Essilor (Merger Sub), entered into an Agreement
and Plan of Merger (the Agreement).
Pursuant to the Agreement, Merger Sub will be merged with and into the
Company (the Merger), with the Company surviving the Merger as a wholly-owned
subsidiary of Essilor.
Upon
consummation of the Merger, each issued and outstanding ordinary share, no par
value, of the Company (collectively, the Shares), other than those held by
Essilor or Merger Sub, any wholly-owned subsidiary thereof, or by the Company
in treasury, and other than those Shares with respect to which dissenters
rights are properly exercised, will be converted into a right to receive $19.75
in cash, without interest (the Merger Consideration). At the closing of the Merger, each
outstanding and unexercised option to purchase Shares will become fully vested
and converted into the right to receive the difference between the Merger
Consideration and the exercise price per share of such option, and each
outstanding restricted stock unit will be canceled in consideration for the
receipt of the Merger Consideration for such restricted stock unit.
The
Agreement has been unanimously approved by the Companys and Essilors
respective boards of directors. The
completion of the Merger is subject to certain closing conditions, including (i) adoption
of the Agreement by the Companys shareholders, (ii) the expiration or
termination of the applicable waiting periods under the Hart-Scott-Rodino
Antitrust Improvements Act of 1976, as amended (the HSR Act), and any
corresponding laws of other jurisdictions applicable to the Merger, (iii) subject
to certain materiality exceptions, the accuracy of the representations and
warranties made by the Company and Essilor, respectively, and compliance by the
Company and Essilor with their respective obligations under the Agreement, (iv) the
absence of a material adverse effect on the Company following the date of the
Agreement and (v) no more than 12.0% (inclusive of any 10.0% or greater
shareholder) or 7.0% (exclusive of any 10.0% or greater shareholder) of the
outstanding Shares exercising dissenters rights.
The
Company, Essilor and Merger Sub have made representations and warranties in the
Agreement. The Company and its
subsidiaries have also agreed to various covenants in the Agreement, including,
among other things, (i) to operate their businesses in all material
respects in the ordinary course consistent with past practice during the period
between the execution of the Agreement and the closing of the Merger, and (ii) not
to solicit alternative transactions or proposals or, subject to certain
exceptions, participate in any discussions or negotiations, or provide
non-public information in connection with, alternative transactions or
proposals during the period between execution of the Agreement and the closing
of the Merger.
The
Agreement contains specified termination rights for the parties. The Company has the right to terminate the
Agreement if it enters into a definitive agreement in respect of a Company
Alternative Proposal (as defined in the Agreement) that constitutes a Company
Superior Proposal (as defined in the Agreement), so long as the Company
complies with certain notice and other requirements set forth in the
Agreement. In such event, the Company
would be required to pay
Essilor
a termination fee equal to $18,330,425 (the Termination Fee). The Company would also be required to pay
Essilor the Termination Fee if Essilor terminates the Agreement because (i) the
board of directors of the Company (a) withdraws or modifies its approval
of the Merger, (b) determines that a Company Alternative Proposal
constitutes a Company Superior Proposal, (c) notifies Essilor of the
Companys intention to terminate the Agreement to accept a Company Superior
Proposal, (d) fails to publicly affirm its recommendation that
shareholders vote in favor of the Merger or recommend against any Company
Alternative Proposal within ten business days of Essilors request to do so, or
(e) resolves or otherwise determines to take, or announces an intention to
take, any of the foregoing actions; or (ii) the Company has materially
breached the no solicitation provisions of the Agreement so as to result in
material harm to Essilor or deprive Essilor of a material benefit of such
provisions. Finally, if (a) prior
to the termination of the Agreement, a Company Alternative Proposal made after
the date of the Agreement is proposed and not withdrawn prior to the special meeting
of the Companys shareholders or, if withdrawn, is resubmitted within three months
of the date of such meeting; (b) (i) the closing of the Merger has
not occurred by September 30, 2010 (subject to Essilors right to extend
such date to December 31, 2010) and the Agreement is then terminated by
the Company or Essilor, (ii) the Agreement is terminated by either the
Company or Essilor because the Companys shareholders do not approve the Merger,
or (iii) the Agreement is terminated by Essilor due to the Companys
material breach of the Agreement that would result in a failure of the
conditions to the Agreement to be satisfied; and (c) prior to the first
anniversary of the Agreement being terminated, the Company enters into any
definitive agreement providing for a Qualifying Transaction (as defined in the
Agreement), then the Company would be required to pay Essilor the Termination
Fee.
Separately,
if Essilor terminates the Agreement due to the Companys material breach of the
Agreement that would result in a failure of the conditions to the Agreement to
be satisfied (other than for a breach of a representation or warranty occurring
after the date of the Agreement based on facts, events or circumstances
occurring after the date of the Agreement), then the Company would be required
to pay Essilors expenses up to $2.0 million (subject to an increase to up to
$5.0 million in the event that Essilor receives a second request pursuant to
the HSR Act).
The
foregoing description of the Agreement and the transactions contemplated
thereby does not purport to be complete and is subject to and qualified in its
entirety by reference to the full text of the Agreement, which is filed as Exhibit 2.1
to this Current Report on Form 8-K and is incorporated herein by reference.
In
connection with the Merger, Essilor entered into support agreements with (i) affiliates
of Berggruen Holdings Ltd., which owns approximately 32% of the outstanding
Shares, and (ii) key members of the Companys senior management team (the Support
Agreements). The Support Agreements
provided that the parties thereto will, among other things, vote their Shares
in favor of the Merger at the special meeting of the Companys
shareholders. The Support Agreements
will terminate if the Agreement is terminated.
The
Agreement contains representations and warranties by each of the parties to the
Agreement. These representations and
warranties were made solely for the benefit of the other parties to the
Agreement and (i) were not intended to be treated as categorical
statements of fact, but rather as a way of allocating the risk to one of the
parties if those statements prove to be inaccurate; (ii) may have been
qualified in the Agreement by disclosures that were made to the other party in
connection
with the negotiation of the Agreement; (iii) may apply contract standards
of materiality that are different from materiality under the applicable
securities laws; and (iv) were made only as of the date of the Agreement
or such other date or dates as may be specified in the Agreement.
The
Company acknowledges that, notwithstanding the inclusion of the foregoing
cautionary statements, it is responsible for considering whether additional
specific disclosures of material information regarding material contractual
provisions are required to make the statements in this Current Report on Form 8-K
not misleading.
Section 5 Corporate
Governance and Management
Item
5.02.
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Departure
of Directors or Certain Officers; Election of Directors; Appointment of
Certain Officers; Compensatory Arrangements of Certain Officers.
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In connection with the Companys entering
into the Merger Agreement, each of Alec Taylor, John H. Flynn, Jr.,
Anthony Di Paola and Jeffrey J. Giguere executed amendments to their employment
agreements with the Company. These
amendments are effective as of December 15, 2009, but will be of no force
and effect if the Agreement is terminated prior to the closing of the
Merger. Among other things, each of
these amendments provides for a retention payment calculated as the amount of
cash severance to which the executive would be entitled if the Company were to
terminate the executives employment without Cause (as defined in the
executives employment agreement) immediately following the closing of the Merger. Each of Messrs. Taylor and Flynn will be
entitled to receive the retention payment on the second anniversary of the closing
of the Merger or, if earlier, upon termination of the executives employment
with the Company because of the executives death or disability, or if the
executive is terminated either by the Company without Cause or by the executive
with Good Reason (as defined in the executives employment agreement). Messrs. Di Paola and Giguere will be
paid the retention payment on substantially similar terms, except that 30% of
the total retention payment will be paid on the first anniversary of the closing
of the Merger and the remaining 70% of the retention payment will be paid on
the second anniversary of the closing of the Merger.
Section 9 Financial
Statements and Exhibits
Item
9.01. Financial Statements and Exhibits.
2.1
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Agreement
and Plan of Merger, among Essilor International, 1234 Acquisition Sub Inc.
and FGX International Holdings Limited, dated as of December 15, 2009.
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10.1
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Amendment
No. 3 to the Amended and Restated Employment Agreement by and among FGX
International Inc., Alec Taylor and FGX International Holdings Limited, dated
as of December 15, 2009.
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10.2
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Amendment
No. 3 to the Amended and Restated Employment Agreement by and among FGX
International Inc. and John H. Flynn, Jr., dated as of December 15,
2009.
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10.3
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Amendment
No. 3 to the Amended and Restated Employment Agreement by and among FGX
International Inc. and Anthony Di Paola, dated as of December 15, 2009.
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10.4
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Amendment
No. 3 to the Amended and Restated Employment Agreement by and among FGX
International Inc. and Jeffrey J. Giguere, dated as of December 15,
2009.
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SIGNATURE
Pursuant to the requirements of the Securities
Exchange Act of 1934, the registrant has duly caused this report to be signed
on its behalf by the undersigned hereunto duly authorized.
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FGX
INTERNATIONAL HOLDINGS LIMITED
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By:
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/s/
Anthony Di Paola
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Name:
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Anthony
Di Paola
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Title:
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Executive
Vice President, Chief
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Financial
Officer and Treasurer
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Dated: December 18,
2009
Exhibit Index
Exhibit No.
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Exhibit
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2.1
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Agreement
and Plan of Merger, among Essilor International, 1234 Acquisition Sub Inc.
and FGX International Holdings Limited, dated as of December 15, 2009.
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10.1
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Amendment
No. 3 to the Amended and Restated Employment Agreement by and among FGX
International Inc., Alec Taylor and FGX International Holdings Limited, dated
as of December 15, 2009.
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10.2
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Amendment
No. 3 to the Amended and Restated Employment Agreement by and among FGX
International Inc. and John H. Flynn, Jr., dated as of December 15,
2009.
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10.3
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Amendment
No. 3 to the Amended and Restated Employment Agreement by and among FGX
International Inc. and Anthony Di Paola, dated as of December 15, 2009.
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10.4
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Amendment
No. 3 to the Amended and Restated Employment Agreement by and among FGX
International Inc. and Jeffrey J. Giguere, dated as of December 15,
2009.
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