(Date of Event Which Requires Filing of this Statement)
Check the appropriate box to designate the rule pursuant to which this Schedule is filed:
o Rule 13d-1(b)
o Rule 13d-1(c)
þ Rule 13d-1(d)
The information required in the remainder of this cover page shall not be deemed to be “filed” for the purpose of Section 18 of the Securities Exchange Act of 1934 (the “Act”) or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes).
This statement is being jointly filed by each of the following persons pursuant to
Rule 13d-1(k) promulgated by the Securities and Exchange Commission pursuant to
Section 13 of the Securities Exchange Act of 1934, as amended: Berggruen Holdings
North America Ltd., a British Virgin Islands (“BVI”) business company
(“BHNA”), Berggruen Holdings Ltd, a BVI business company (“Berggruen
Holdings”), Tarragona Trust, a BVI trust (“Tarragona”) and Nicolas
Berggruen. The ordinary shares of the Issuer are owned by BHNA. BHNA is a direct,
wholly-owned subsidiary of Berggruen Holdings. All of the shares of Berggruen
Holdings are owned by Tarragona. The trustee of Tarragona is Maitland Trustees
Limited, a BVI corporation acting as an institutional trustee in the ordinary course
of business without the purpose or effect of changing or influencing control of the
Issuer. Mr. Berggruen is a director of Berggruen Holdings and may be considered to
have beneficial ownership of Berggruen Holdings’ interests in the Issuer. Each of
BHNA, Berggruen Holdings, Tarragona and Mr. Berggruen is referred to herein as a
“Reporting Person” and collectively as the “Reporting Persons”.
Item 2(b).
Address of Principal Business Office or, if none, Residence:
The principal business address of each of BHNA and Berggruen Holdings is 1114 Avenue
of the Americas, 41st Floor, New York, NY10036. The principal business address of
Mr. Berggruen is 9-11 Grosvenor Gardens, London, SW1W OBD, United Kingdom. The
principal business address of Tarragona is 9 Columbus Centre, Pelican Drive, Road
Town, Tortola, British Virgin Islands.
If this statement is filed pursuant to §§ 240.13d-1(b) or 240.13d-2(b) or (c), check
whether the person filing is a:
(a)
o Broker or dealer registered under Section 15 of the Act.
(b)
o Bank as defined in section 3(a)(6) of the Act.
(c)
o Insurance company as defined in section 3(a)(19) of the Act.
(d)
o Investment company registered under section 8 of the Investment Company Act of
1940.
(e)
o An investment adviser in accordance with § 240.13(d)-1(b)(1)(ii)(E).
(f)
o An employee benefit plan or endowment fund in accordance with §
240.13d-1(b)(1)(ii)(F).
(g)
o A parent holding company or control person in accordance with §
240.13d-1(b)(1)(ii)(G).
(h)
o A savings association as defined in Section 3(b) of the Federal Deposit
Insurance Act (12 U.S.C. 1813).
(i)
o A church plan that is excluded from the definition of an investment company
under section 3(c)(14) of the Investment Company Act of 1940.
(j)
o Group, in accordance with § 240.13d-1(b)(1)(ii)(J).
Item 4.
Ownership:
Incorporated by reference to Item 2(a) above and Items 5-11 of each Reporting
Person’s respective cover page.1
1
On December 15, 2009, the Issuer, Essilor International
(“Parent”) and 1234 Acquisition Sub Inc. (“Merger Sub”) entered
into an Agreement and Plan of Merger (the “Merger Agreement”), pursuant
to which, subject to the satisfaction of the conditions contained in the Merger
Agreement, Merger Sub will merge with and into the Issuer, and the outstanding
Ordinary Shares of the Issuer will be converted into the right to receive cash
in the amount of $19.75 per share. In connection with the Merger Agreement,
BHNA, Berggruen Holdings and Tarragona entered into a support agreement (the
“Support Agreement”) with Parent and Merger Sub with respect to all of
the Ordinary Shares of the Issuer beneficially owned by them as of the date of
the Support Agreement, and any additional Ordinary Shares of the Issuer
acquired by them during the term of the Support Agreement (collectively, the
“Shares”). Pursuant to the Support Agreement, each of BHNA, Berggruen
Holdings and Tarragona agreed, among other things, during the term of the
Support Agreement, (i) to vote, or cause to be voted, all of their Shares in
favor of approval of the transactions contemplated by the Merger Agreement and
against any Company Alternative Proposal (as such term is defined in the Merger
Agreement), (ii) not to transfer any Shares and (iii) to waive dissenter’s or
appraisal rights. In addition, each of BHNA, Berggruen Holdings and Tarragona
agreed to deliver to Parent, as soon as practicable following the date of the
Support Agreement (and in any event within 30 days), an irrevocable proxy from
the record holder of the Shares to each of certain designees of Parent to vote
the Shares in favor of approval of the transactions contemplated by the Merger
Agreement and against, among other matters, any Company Alternative Proposal.
BHNA, Berggruen Holdings and Tarragona retain full voting power (to the extent
applicable) with respect to all matters not specified in such proxy. The
Support Agreement and each proxy delivered pursuant thereto will automatically
terminate upon the effective time of the merger contemplated by the Merger
Agreement or upon the termination of the Merger Agreement in accordance with
its terms. The foregoing descriptions of the Merger Agreement and the Support
Agreement do not purport to be complete, and are qualified in their entireties
to the full text of such agreements.
Item 5.
Ownership of Five Percent or Less of a Class:
If this statement is being filed to report the fact that as of the date hereof the
Reporting Person has ceased to be the beneficial owner of more than 5 percent of the
class of securities, check the following o.
Item 6.
Ownership of More than Five Percent on Behalf on Another Person:
Not applicable.
Item 7.
Identification and Classification of the Subsidiary Which Acquired the Security Being
Reported on by the Parent Holding Company or Control Person:
Not applicable.
Item 8.
Identification and Classification of Members of the Group:
Limited Power of Attorney, dated June 23, 2006, given by Maitland Trustees
Limited, as trustee of the Tarragona Trust, to Jared S. Bluestein, incorporated
by reference to Exhibit 24.1 to the Form 3 filed by the Reporting Persons with
respect to the Issuer on October 24, 2007.
Support Agreement, dated December 15, 2009, by and among BHNA, Berggruen
Holdings, Tarragona, Parent and Merger Sub (filed herewith).
SIGNATURE
After reasonable inquiry and to the best of each of the Reporting Person’s knowledge and
belief, each of the undersigned certifies that the information set forth in this statement is true,
complete and correct.
The undersigned, by signing his name herein, does sign and execute this Schedule 13G
pursuant to a Limited Power of Attorney executed by the above Reporting Persons and incorporated by
reference herein on behalf of the Reporting Persons.
This Support Agreement (this “Agreement”) is dated as of December 15, 2009, by and
among Essilor International, a French société anonyme (“Parent”), 1234 Acquisition Sub
Inc., a Delaware corporation and an indirect wholly-owned subsidiary of Parent (“Merger
Sub”), and the persons executing this Agreement as “Shareholders” on the signature pages hereto
(each, a “Shareholder” and collectively, the “Shareholders”).
RECITALS
A. Simultaneously with the execution of this Agreement, Parent, Merger Sub and FGX
International Holdings Limited, a company organized under the laws of the British Virgin Islands
(the “Company”), have entered into an Agreement and Plan of Merger (as the same may be
amended from time to time, the “Merger Agreement”), which provides, among other things, for
the merger (the “Merger”) of Merger Sub with and into the Company upon the terms and
subject to the conditions set forth therein;
B. Each Shareholder is the Beneficial Owner of, and has the shared right with the other
Shareholders to vote (or to direct the voting of) and dispose of (or to direct the disposition of),
the number of Ordinary Shares set forth below such Shareholder’s name on the signature pages hereto
(such Ordinary Shares, together with any other Ordinary Shares the Beneficial Ownership of which is
acquired by such Shareholder during the period from and including the date of this Agreement
through and including the date on which this Agreement is terminated pursuant to Section 5.1
hereof, are collectively referred to herein as such Shareholder’s “Owned Shares”); and
C. As a condition and inducement to their willingness to enter in the Merger Agreement,
Parent and Merger Sub have required that each Shareholder enter into this Agreement.
NOW THEREFORE, the parties hereto agree as follows:
I. CERTAIN DEFINITIONS
1.1. Capitalized Terms. Capitalized terms used in this Agreement and not defined
herein have the meanings ascribed to such terms in the Merger Agreement.
1.2. Other Definitions. For the purposes of this Agreement:
“Beneficial Owner”, “Beneficial Ownership” and words of similar import, with
respect to any securities, means having “beneficial ownership” of such securities (as determined
pursuant to Rule 13d-3 under the Exchange Act), including pursuant to any agreement, arrangement or
understanding, whether or not in writing. Without duplicative counting of the same securities by
the same holder, securities Beneficially Owned by a Person will include securities Beneficially
Owned by all Affiliates of such Person and all other Person with whom such Person would constitute
a “group” within the meaning of Section 13(d) of the Exchange Act.
“Knows” means, with respect to any particular Person, the actual knowledge of that
Person following reasonable inquiry.
“Ordinary Shares” means the ordinary shares, no par value, of the Company, and will
also include for purposes of this Agreement all shares or other voting securities into which
ordinary shares may be reclassified, sub-divided, consolidated or converted and any rights and
benefits arising therefrom, including any dividends or distributions of securities which may be
declared in respect of the ordinary shares and entitled to vote in respect of the matters
contemplated by Article II.
“Transfer” means, with respect to a security, the sale, grant, assignment, transfer,
pledge encumbrance or other disposition of such security or the Beneficial Ownership thereof
(including by operation of Law), or the entry into any contract to effect any of the foregoing.
II. AGREEMENT TO VOTE
2.1. Agreement to Vote. Except (i) to the extent set forth in Section 4.5 of this
Agreement, (ii) in the event the Merger Agreement has been terminated in accordance with the terms
of such agreement, or (iii) in the event this Agreement has been terminated pursuant to Section 5.1
of this Agreement, each Shareholder irrevocably and unconditionally agrees that, at any meeting
(whether annual or special, and whether or not an adjourned or postponed meeting) of the Company’s
shareholders, however called, or in connection with any written consent of the Company’s
shareholders, such Shareholder will, in each such case, (x) appear at such meeting or otherwise
cause its Owned Shares to be counted as present thereat for purposes of calculating a quorum and
(y) vote, or cause to be voted (including by written consent, if applicable), all of such
Shareholder’s Owned Shares as of the relevant time (i) in favor of the Merger Agreement
(irrespective of any Change in Company Recommendation in respect of which the Merger Agreement has
not been terminated in accordance with its terms) and the transactions contemplated thereby,
including the Merger, (ii) against any Company Alternative Proposal, (iii) against any action or
agreement that such Shareholder Knows would breach any representation, warranty, covenant or
agreement of the Company under the Merger Agreement to such extent that such action or agreement
would result in any failure of the condition to the obligations of Parent and Merger Sub to
consummate the Merger set forth in Section 7.3(a) or Section 7.3(b) of the Merger Agreement, (iv)
against any action or agreement that such Shareholder Knows would prevent or materially delay
completion of the Merger, and (v) against any change in the composition of the Board of Directors
of the Company. No Shareholder will enter into any agreement or understanding with any Person the
effect of which would be inconsistent or violative of the provisions and agreements contained in
this Section 2.1. During the term of this Agreement, except to the extent set forth in Section 4.5
of this Agreement, no Shareholder will take any action (including appearing at the Company Meeting
or notifying the Company or any other Person that a Proxy has been revoked) that would render
invalid the exercise of any Proxy by the holder thereof in accordance with the terms of this
Agreement.
-2-
2.2. Grant of Irrevocable Proxy. Each Shareholder shall revoke any and all previous
proxies granted with respect to its Owned Shares to effectuate the following provisions of this
Section 2.2. As soon as practicable following the date of this Agreement (and in event within 30
calendar days following the date of this Agreement), each Shareholder agrees to deliver to Parent a
valid proxy, in the form attached hereto as Exhibit A (the “Proxy”), signed by each
record holder of such Shareholder’s Owned Shares. In the event that any of the Shareholder’s Owned
Shares are then held of record in “street name” and such record holder notifies Shareholder in
writing that it is unwilling to deliver a Proxy, such Shareholder will use its reasonable best
efforts to cause such Owned Shares to be registered in the name of such Shareholder as the record
holder thereof and immediately thereafter deliver to Parent a valid Proxy signed by such
Shareholder in its capacity as record owner of all of its Owned Shares as soon as practicable after
the date of this Agreement (and in any event not later that five Business Days prior to the record
date for the Company Meeting); provided, however, from and after the record date for the Company
Meeting, each Shareholder in whose name such Owned Shares shall have been so registered and in
respect of which Owned Shares such Shareholder shall have delivered a Proxy pursuant to this
sentence shall be permitted to re-register such shares in “street name”. Except as set forth in
this Section 2.2, each Proxy to be delivered pursuant to this Section 2.2 shall be irrevocable to
the fullest extent permissible by Law and coupled with an interest, and granted in order to secure
such Shareholder’s performance under this Agreement and also in consideration of Parent and Merger
Sub entering into this Agreement and the Merger Agreement. Each Shareholder agrees that the Proxy
delivered by it will be valid under applicable Law and the Company’s governing documents to permit
the holder thereof to vote the Shareholder’s Owned Shares at the Company Meeting, and that the
holder of the Proxy shall have the right to cause to be present, to consent or to vote such
Shareholder’s Owned Shares in accordance with the provisions of Section 2.1 pursuant to the Proxy.
The Proxy granted by each Shareholder shall be void and of no further effect and revoked
(automatically without any action on the part of any Shareholder, Parent, Merger Sub or any other
Person) upon the earlier to occur of the Expiration Time and the termination of this Agreement
pursuant to Section 4.5 hereof.
III. REPRESENTATIONS AND WARRANTIES
3.1. Representations and Warranties of Shareholders. Each Shareholder, severally and
not jointly, represents and warrants to Parent and Merger Sub as follows:
(a) Such Shareholder has the requisite capacity and authority to execute and deliver this
Agreement and to consummate the transactions contemplated hereby. This Agreement has been duly and
validly executed and delivered by such Shareholder and constitutes a legal, valid and binding
agreement of such Shareholder enforceable against such Shareholder in accordance with its terms,
subject to the effect of any applicable bankruptcy, insolvency (including all Laws related to
fraudulent transfers), reorganization, moratorium or similar Laws affecting creditors’ rights
generally or equitable principles relating to enforceability.
-3-
(b) Such Shareholder is the Beneficial Owner, free and clear of any Liens (other than those
arising under this Agreement and other than Liens against Owned Shares that have been pledged
and/or deposited in certain accounts maintained with registered broker-dealers and other nominees
as margin loan collateral), of the Owned Shares, which, as of the date of this Agreement, are set
forth below such Shareholder’s name on the signature pages hereto and, except as provided in this
Agreement, has full and unrestricted power to dispose of and vote all of, and has not granted any
proxy inconsistent with this Agreement that is still effective or entered into any voting or
similar agreement with respect to, such Shareholder’s Owned Shares. The Owned Shares set forth
below such Shareholder’s name on the signature pages hereto constitute all of the capital stock of
the Company that are legally and Beneficially Owned by such Shareholder as of the date of this
Agreement, and, except for such Shareholder’s Owned
Shares and, the Owned Shares owned by the other Shareholders who are parties to this
Agreement, such Shareholder and such Shareholder’s Affiliates do not Beneficially Own or have any
right to acquire (whether currently, upon lapse of time, following the satisfaction of any
conditions, upon the occurrence of any event or any combination of the foregoing), any Ordinary
Shares or any securities convertible into Ordinary Shares (including Company Stock Options).
(c) Except for filings required under the Exchange Act, with respect to such Shareholder’s
Beneficial Ownership of Ordinary Shares, none of the execution and delivery of this Agreement by
such Shareholder, the consummation by such Shareholder of the transactions contemplated hereby or
compliance by such Shareholder with any of the provisions hereof (i) requires any consent or other
permit of, or filing with or notification to, any Governmental Authority or any other person by
such Shareholder, (ii) results in a violation or breach of, or constitutes (with or without notice
or lapse of time or both) a default (or gives rise to any third party right of termination,
cancellation, material modification or acceleration) under any of the terms, conditions or
provisions of any contract to which such Shareholder is a party or by which such Shareholder or any
of such Shareholder’s properties or assets (including such Shareholder’s Owned Shares) may be
bound, (iii) violates any Order or Law applicable to such Shareholder or any of such Shareholder’s
properties or assets (including such Shareholder’s Owned Shares), or (iv) results in a Lien upon
any of such Shareholder’s properties or assets (including such Shareholder’s Owned Shares).
(d) No broker, finder or investment banker is entitled to any brokerage, finder’s or other fee
or commission in connection with the transactions contemplated by this Agreement or the Merger
Agreement based upon arrangements made by or on behalf of such Shareholder that is or will be
payable by Parent, Merger Sub, the Company or any of its Subsidiaries.
(e) Each Shareholder understands and acknowledges that Parent and Merger Sub are entering into
the Merger Agreement in reliance upon the Shareholders’ execution and delivery of this Agreement.
IV. ADDITIONAL COVENANTS OF SHAREHOLDERS
4.1. Waiver of Appraisal Rights. Each Shareholder hereby irrevocably and
unconditionally waives, and agrees to prevent the exercise of, any rights of appraisal or rights of
dissent from the Merger that such Shareholder may have.
4.2. Disclosure. Each Shareholder hereby authorizes Parent, Merger Sub and the
Company to publish and disclose in any announcement or disclosure (including any required by the
SEC) and in the Company Proxy Statement such Shareholder’s identity and ownership of the Owned
Shares and the nature of such Shareholder’s obligation under this Agreement, provided that such
Shareholder is provided with a reasonable advance opportunity to review and comment on such
disclosure and Parent includes such Shareholder’s reasonable comments in such disclosure. Each
Shareholder will consult with and provide Parent a reasonable opportunity to review in advance any
press or public statement release relating to this Agreement or the transactions contemplated
herein issued by such Shareholder or its Affiliates. No Shareholder
shall issue any such press release or public statement without the prior approval of Parent
(which approval shall not be unreasonably withheld or delayed), except as may be required by Law.
-4-
4.3. Further Assurances. No Shareholder shall take any action that would make any
representation or warranty of such Shareholder contained herein untrue or incorrect or have the
effect of preventing, impeding, interfering with or adversely affecting the performance by such
Shareholder of its obligations under this Agreement. Each Shareholder will execute and deliver
such additional documents and to take such further actions as necessary or reasonably requested by
Parent or Merger Sub to confirm and assure the rights and obligations set forth in this Agreement
or to consummate the transactions contemplated by this Agreement. Each Shareholder will promptly
notify Parent and Merger Sub in writing upon any representation or warranty of such Shareholder
contained in this Agreement becoming untrue or incorrect in any respect during the term of this
Agreement and for the purposes of this provision, each representation and warranty shall be deemed
to be given at and as of all times during such term (irrespective of any language which suggests
that it is only being given as at a particular date).
4.4. No Solicitation; Agreement in Capacity as Shareholder Only. Such Shareholder
will comply with the provisions of Section 6.3 of the Merger Agreement to the extent applicable to
such Shareholder in such Shareholder’s applicable capacity. Notwithstanding the immediately
preceding sentence, nothing in this Agreement will prohibit any partner, member, director, officer,
employee, trustee or Affiliates of any Shareholder who is or becomes during the term of this
Agreement an officer or director of the Company from taking, or refraining from taking, any action
that such officer or director, as applicable, determines in good faith after consultation with
outside legal counsel would, if not so taken or omitted to be taken, be reasonably likely to be
inconsistent with such officer’s or director’s fiduciary duties under applicable Law. Each
Shareholder executes this Agreement solely in its capacity as the Beneficial Owner (or Affiliate of
such Beneficial Owner) of such Shareholder’s Owned Shares and nothing herein will limit or affect
any actions taken by any partner, member, director, officer, employee, trustee or Affiliate of such
Shareholder in his or her capacity as an officer or director of the Company. If, prior to the
Expiration Time, a Shareholder receives a proposal with respect to the sale of Ordinary Shares in
connection with a Company Alternative Proposal, then such Shareholder will promptly inform the
Company of the identity of the person making, and the material terms of, such proposal in the
manner set forth in Section 6.3 of the Merger Agreement (No Solicitation).
4.5. Amendment to the Merger Agreement. In the event that the Company, Parent and
Merger Sub enter into an amendment to the Merger Agreement, each Shareholder covenants and agrees
with Parent and Merger Sub to enter into an amendment to this Agreement that will reflect, to the
extent appropriate, the terms of such amended Merger Agreement; provided, however,
that notwithstanding any other term of this Agreement, any Shareholder may terminate this Agreement
as to itself in the event the Merger Agreement is amended in a manner that (i) results in any
decrease in the per share amount of the Merger Consideration or alters the form of Merger
Consideration from 100% cash, (ii) imposes any additional conditions to Parent’s or Merger Sub’s
obligations to consummate the Merger, (iii) extends the Termination Date referred to in Section
8.1(b) of the Merger Agreement (Termination), other than any extension contemplated by such Section
8.1(b), or (iv) modifies Section 9.12 of the Merger Agreement (Amendment; Waiver; Extension),
unless for each of clauses (i) through (iv) above, such
Shareholder has agreed in writing to continue to be bound by the terms and conditions of this
Agreement with respect to its Owned Shares from and after the date of such amendment.
-5-
4.6. No Transfer. Except as otherwise provided in this Agreement, without the prior
written consent of Parent, during the term of this Agreement, no Shareholder will, directly or
indirectly, (a) grant any proxies or enter into any voting trust or other agreement or arrangement
with respect to the voting of any Ordinary Shares or (b) sell, assign, Transfer, encumber or
otherwise dispose of (including by merger, consolidation or otherwise by operation of Law), or
enter into any contract, option or other arrangement or understanding with respect to, or offer to
make, any direct or indirect sale, assignment, Transfer, encumbrance or other disposition of
(including by merger, consolidation or otherwise by operation of Law), any Owned Shares.
4.7. Adjustments. In the event (i) of any stock dividend, stock split,
recapitalization, reclassification, combination or exchange of shares of capital stock or other
securities of the Company on, of or affecting the Owned Shares or the like or any other action that
would have the effect of changing a Shareholder’s ownership of the Company’s shares of capital
stock or other securities or (ii) a Shareholder becomes the Beneficial Owner of any additional
Owned Shares or other securities of the Company, then the terms of this Agreement will apply to the
shares of capital stock held by the Shareholder immediately following the effectiveness of the
events described in clause (i) or the Shareholder becoming the Beneficial Owner thereof, as
described in clause (ii), as though they were Owned Shares hereunder. Each Shareholder hereby
agrees, while this Agreement is in effect, to promptly notify Parent and Merger Sub of the number
of any new Ordinary Shares acquired by such Shareholder, if any after the date of this Agreement.
V. TERMINATION
5.1. Termination. This Agreement will terminate upon the earliest to occur of (i) the
Effective Time, (ii) the termination of the Merger Agreement in accordance with its terms, and
(iii) as to any Shareholder, the mutual written consent of Parent and such Shareholder (the
“Expiration Time”). This Agreement will also terminate to the extent provided in Section
4.5.
5.2. Effect of Termination. Upon termination of this Agreement, the rights and
obligations of all the parties will terminate and become void without further action by any party
except for the provisions of Section 5.1, this Section 5.2 and Article VI, which will survive such
termination. For the avoidance of doubt, the termination of this Agreement shall not relieve any
party of liability for any breach prior to such termination. All representations and warranties
made by a Shareholder in this Agreement shall survive any termination of this Agreement or the
Merger Agreement.
VI. GENERAL
6.1. Notices. All notices, request, claims, demands and other communications under
this Agreement will be in writing and will be deemed given when delivered personally or
electronically or two Business Days following deposit with a reputable overnight courier (providing
proof of delivery) to the parties at the following addresses (or at such other address for a party
as is specified by like notice): (a) if to a Blink Shareholder, to the address set forth
below such Shareholder’s name on the signature pages hereto, with a copy (which shall not
constitute notice under this Section 6.1) to Greenberg Traurig, LLP, 200 Park Avenue, New York, NewYork10166, Attention: Clifford E. Neimeth, Telephone (212) 801-9383, Facsimile (212) 805-9383 and
(b) if to Parent or Merger Sub, in accordance with Section 9.6 of the Merger Agreement (Notices),
or to such other persons, addresses or facsimile numbers as may be designated in writing by the
Person entitled to receive such communication as provided above.
-6-
6.2. No Third Party Beneficiaries, Etc. This Agreement is not intended to confer any
rights or remedies upon any Person other than the parties to this Agreement.
6.3. Governing Law. This Agreement shall be governed by and construed in accordance
with the internal, procedural, and substantive Laws of the State of New York, without giving effect
to any conflict of law provision of the State of New York that would cause the application of the
Laws of any jurisdiction other than the State of New York.
6.4. 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.
6.5. Assignment. Except as provided in Section 4.6, neither this Agreement nor any of
the rights, interests or obligations under this Agreement may be assigned or delegated, in whole or
in part, by operation of Law or otherwise by any Shareholder without the prior written consent of
Parent and Merger Sub, and any such assignment without such prior written consent will 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 assigns.
6.6. Interpretation. The headings in this Agreement are for reference only and do not
affect the meaning or interpretation of this Agreement. Definitions apply equally to both the
singular and plural forms of the terms defined. Whenever the context may require, any pronoun
includes the corresponding masculine, feminine and neuter forms. All references in this Agreement
to Articles, Sections and Exhibits refer to Articles and Sections of, and Exhibits to, this
Agreement unless the context requires otherwise. The words “include,”“includes” and “including”
are not limiting and will be deemed to be followed by the phrase “without limitation.” The phrases
“herein,”“hereof,”“hereunder” and words of similar import shall be deemed to refer to this
Agreement as a whole, including the Exhibits and Schedules hereto, and not to any particular
provision of this Agreement. The word “or” shall be inclusive and not exclusive unless the context
requires otherwise. Unless the context requires otherwise, any agreements, documents, instruments
or Laws defined or referred to in this Agreement will be deemed to mean or refer to such
agreements, documents, instruments or Laws as from time to time amended, modified or supplemented,
including (a) in the case of agreements, documents or instruments, by waiver or consent and (b) in
the case of Laws, by succession of comparable successor statutes. All references in this Agreement
to any particular Law will be deemed to
refer also to any rules and regulations promulgated under that Law. References to a Person
will refer to its predecessors and successors and permitted assigns.
-7-
6.7. Amendments. This Agreement may not be amended except by written agreement signed
by Parent, Merger Sub and any Shareholder against whom such amendment shall be enforced.
6.8. Extension; Waiver. At any time prior to the Effective Time, Parent and Merger
Sub, on the one hand, and each Shareholder, on the other hand, may (a) extend the time for the
performance of any of the obligations of the other party, (b) waive any inaccuracies in the
representations and warranties of the other party contained in this Agreement or in any document
delivered under this Agreement, or (c) waive compliance with any of the covenants or conditions
contained in this Agreement. Any agreement on the part of a party to any extension or waiver will
be valid only if set forth in an instrument in writing signed by such party. The failure of any
party to this Agreement to assert any of its rights under this Agreement or otherwise or the course
of dealings of any party to this Agreement contrary to the assertion of such rights will not
constitute a waiver of such rights or otherwise impair the enforceability of such rights.
6.9. Fees and Expenses. Each party is responsible for its own fees and expenses
(including the fees and expenses of financial consultants, investment bankers, accountants and
counsel) in connection with the entry into of this Agreement and the consummation of the
transactions contemplated hereby.
6.10. Entire Agreement. This Agreement constitutes the entire agreement among the
parties hereto with respect to the subject matter hereof (other than the Merger Agreement) and
supersedes all other prior agreements, understandings, representations and warranties, both written
and oral, among the parties to this Agreement with respect to the subject matter of this Agreement.
6.11. Rules of Construction. The parties to this Agreement have been represented by
counsel during the negotiation and execution of this Agreement and waive the application of any
laws or rule of construction providing that ambiguities in any agreement or other document will be
construed against the party drafting such agreement or other document.
6.12. Remedies Cumulative. Except as otherwise provided in this Agreement, any and
all remedies expressly conferred upon a party to this Agreement will be cumulative with, and not
exclusive of, any other remedy contained in this Agreement, at Law or in equity. The exercise by a
party to this Agreement of any one remedy will not preclude the exercise by it of any other remedy.
6.13. Counterparts; Effectiveness; Execution. This Agreement may be executed in any
number of counterparts, all of which are one and the same agreement. This Agreement will become
effective and binding upon each Shareholder when executed by such Shareholder, Parent, and Merger
Sub. This Agreement may be executed by facsimile signature by any party and such signature is
deemed binding for all purposes hereof, without delivery of an original signature being thereafter
required.
-8-
6.14. Specific Performance. The parties acknowledge that the provisions of this
Agreement are necessary to protect the legitimate interests of Parent and Merger Sub, and that any
violation of this Agreement will result in irreparable injury to Parent and Merger Sub, the exact
amount of which will be difficult to ascertain and the remedies at Law for which will not be
reasonable or adequate compensation to Parent and Merger Sub for such a violation. Accordingly,
each Shareholder hereby agrees that if he or she violates any of the provisions of this Agreement,
in addition to any other remedy available at Law or in equity, (i) Parent and Merger Sub will be
entitled to seek specific performance or injunctive relief without posting a bond or other security
and without the necessity of proving actual damages and (ii) the New York Courts (as defined in
Section 6.15) (or any other court in which the judgment of the New York Courts is sought to be
enforced) shall be entitled to require such Shareholder to execute and deliver a Proxy in the form
attached hereto as Exhibit A to an officer of Parent so that such Shareholder’s Owned
Shares may be voted by the holder of such Proxy at the Company Meeting in accordance with Section
2.1 of this Agreement.
6.15. Submission to Jurisdiction. The parties agree that any legal action or
proceeding with respect to this Agreement and the rights and obligations arising hereunder, or for
recognition and enforcement of any judgment in respect of this Agreement and the rights and
obligations arising hereunder brought by the other party hereto or its successors or assigns shall
be brought and determined exclusively in a federal district court located in the Borough of
Manhattan, City of New York, State of New York, or, if not able to be brought in such court, in a
state court located in the Borough of Manhattan, City of New York, State of New York (as
applicable, the “New York Courts”). Each of the parties hereto hereby irrevocably submits
with regard to any such action or proceeding for itself and in respect of its property, generally
and unconditionally, to the personal jurisdiction of the New York Courts and agrees that it will
not bring any action relating to this Agreement or any of the transactions contemplated by this
Agreement in any court other than the New York Courts (other than to enforce a judgment of the New
York Courts). Each of the parties hereto hereby irrevocably waives, and agrees not to assert, by
way of motion, as a defense, counterclaim or otherwise, in any action or proceeding with respect to
this Agreement, (a) any claim that it is not personally subject to the jurisdiction of the New York
Courts for any reason other than the failure to serve in accordance with this Section 6.15, (b) any
claim that it or its property is exempt or immune from jurisdiction of the New York Courts or from
any legal process commenced in the New York Courts (whether through service of notice, attachment
prior to judgment, attachment in aid of execution of judgment, execution of judgment or otherwise),
and (c) to the fullest extent permitted by the applicable Law, any claim that (i) the suit, action
or proceeding in the New York Courts is brought in an inconvenient forum, (ii) the venue of such
suit, action or proceeding is improper or (iii) this Agreement, or the subject matter hereof, may
not be enforced in or by the New York Courts. The parties to this Agreement agree that mailing of
process or other papers in connection with any such action or proceeding in the manner provided in
Section 6.1 or in such other manner as may be permitted by applicable Laws, will be valid and
sufficient service thereof.
-9-
6.16. Waiver of Jury Trial. EACH PARTY WAIVES, TO THE FULLEST EXTENT PERMITTED BY
APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY ACTION, SUIT OR
PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT, AND WHETHER MADE BY CLAIM,
COUNTERCLAIM, THIRD PARTY CLAIM OR OTHERWISE. EACH PARTY HERETO (A) CERTIFIES THAT NO
REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT
SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND
(B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS
AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
[Rest of page intentionally left blank]
-10-
IN WITNESS WHEREOF, each party hereto has caused this Agreement to be signed as of the date
first above written.
Notice Address:
9 Columbus Centre, Pelican Drive
Road Town, Tortola, British Virgin Islands
-12-
EXHIBIT A
FORM OF IRREVOCABLE PROXY
FGX INTERNATIONAL HOLDINGS LIMITED (the “Company”)
I/We being a Member of the above Company HEREBY APPOINT [ and ] of Essilor
International, a French société anonyme (“Parent”), to be my/our proxy to vote all of
my/our Owned Shares, including those identified on Schedule I hereto, for me/us at the meetings of
the Members and at any adjournment thereof as follows: (i) in favor of the Merger Agreement
(irrespective of any Change in Company Recommendation in respect of which the Merger Agreement has
not been terminated in accordance with its terms) and the transactions contemplated thereby,
including the Merger, (ii) against any Company Alternative Proposal, (iii) against any action or
agreement that such Shareholder Knows would breach any representation, warranty, covenant or
agreement of the Company under the Merger Agreement to such extent that would result in any failure
of the condition to the obligations of Parent and Merger Sub to consummate the Merger set forth in
Section 7.3(a) or Section 7.3(b) of the Merger Agreement, (iv) against any action or agreement that
such Shareholder Knows would prevent or materially delay completion of the Merger, and (v) against
any change in the composition of the Board of Directors of the Company.
This Proxy is coupled with an interest and is granted (a) pursuant to that certain Support
Agreement, dated December 15, 2009, among Parent, 1234 Acquisition Sub Inc., a Delaware corporation
(“Merger Sub”), and the undersigned (the “Support Agreement”), and (b) in
consideration of Parent and Merger Sub entering into the Agreement and Plan of Merger, dated
December 15, 2009, among Parent, Merger Sub and the Company (as such agreement may be amended from
time to time, the “Merger Agreement”), and this Proxy is irrevocable to the fullest extent
permitted by Law until, and automatically (without any action required on the part of the
undersigned, Parent, Merger Sub or any other Person) shall become void and of no further effect
upon the earlier to occur of (i) the Expiration Time and (ii) the termination of the Support
Agreement pursuant to Section 4.5 thereof. Capitalized terms used herein but not specifically
defined herein shall have the meanings ascribed to such terms in the Support Agreement. The Merger
Agreement provides for, among other things, the merger of Merger Sub with and into the Company (the
“Merger”).
This Proxy is strictly limited to, and the attorneys-in-fact and proxies named above cannot
and shall not exercise this Proxy on any matter except with respect to the subject matters
expressly set forth in the first paragraph above. The undersigned shall remain unrestricted with
respect to voting the Owned Shares on all other matters.
Any obligation of the undersigned hereunder shall be binding upon the successors and assigns
of the undersigned.
Signed this day of , 200[ ]
By:
/s/
Name:
Title:
Schedule I
Total number of Owned Shares:
Company Ordinary Shares
Restricted Stock Units
Dates Referenced Herein and Documents Incorporated by Reference