-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, Aj8UFEp1WR0KV6WK2u6c8SRO7cwJwLOkGrh/aeFPbo4ibheHA/d9yxpLS9rCaZWL 4jIhyMld3+l8ra9s81bhSg== 0000898822-04-000472.txt : 20040602 0000898822-04-000472.hdr.sgml : 20040602 20040602172522 ACCESSION NUMBER: 0000898822-04-000472 CONFORMED SUBMISSION TYPE: 8-K PUBLIC DOCUMENT COUNT: 3 CONFORMED PERIOD OF REPORT: 20040602 ITEM INFORMATION: Other events ITEM INFORMATION: Financial statements and exhibits FILED AS OF DATE: 20040602 FILER: COMPANY DATA: COMPANY CONFORMED NAME: COLE NATIONAL CORP /DE/ CENTRAL INDEX KEY: 0000769644 STANDARD INDUSTRIAL CLASSIFICATION: RETAIL-RETAIL STORES, NEC [5990] IRS NUMBER: 341453189 STATE OF INCORPORATION: DE FISCAL YEAR END: 0130 FILING VALUES: FORM TYPE: 8-K SEC ACT: 1934 Act SEC FILE NUMBER: 001-12814 FILM NUMBER: 04845220 BUSINESS ADDRESS: STREET 1: 1925 ENTERPRISE PARKWAY STREET 2: N/A CITY: TWINSBURG STATE: OH ZIP: 44087 BUSINESS PHONE: 3304863100 MAIL ADDRESS: STREET 1: 1925 ENTERPISE PARKWAY STREET 2: N/A CITY: TWINSBURG STATE: OH ZIP: 44087 FORMER COMPANY: FORMER CONFORMED NAME: CNC HOLDING CORP/DE DATE OF NAME CHANGE: 19920703 8-K 1 jun02_8kcnc.txt FORM 8-K 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): June 2, 2004 COLE NATIONAL CORPORATION (Exact Name of Registrant as Specified in Charter) DELAWARE 1-12814 34-1453189 (State or Other Jurisdiction (Commission (IRS Employer of Incorporation) File Number) Identification No.) 1925 ENTERPRISE PARKWAY 44087 TWINSBURG, OHIO (Zip Code) (Address of Principal Executive Offices) Registrant's telephone number, including area code: (330) 486-3100 Not Applicable (Former Name or Former Address, if Changed Since Last Report) 1 Item 5. Other Events On June 2, 2004, Cole National Corporation (the "Company") announced that it and Luxottica Group S.p.A., an Italian corporation ("Luxottica") entered into an Amendment No. 1 ("Amendment No. 1") to the Agreement and Plan of Merger (the "Merger Agreement"), dated as of January 23, 2004, by and among Luxottica, Colorado Acquisition Corp., a Delaware corporation and an indirect wholly-owned subsidiary of Luxottica, and the Company. The Company also announced that it had set July 20, 2004 as the date of its annual meeting of stockholders to consider the Luxottica merger agreement and the election of directors. A copy of Amendment No. 1 is attached hereto as Exhibit 2.1 and is incorporated herein by reference. A copy of the press release announcing the Amendment No. 1 and the date of the annual meeting is attached hereto as Exhibit 99.1 and is incorporated herein by reference. Item 7. Financial Statements, Pro Forma Financial Information and Exhibits. (c) Exhibits. The following exhibits are furnished with this Form 8-K: 2.1 Amendment No. 1 to Agreement and Plan of Merger, dated as of June 2, 2004, by and among Cole National Corporation, Luxottica Group S.p.A. and Colorado Acquisition Corp. 99.1 Press release of Cole National Corporation, dated June 2, 2004 2 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. Cole National Corporation By: /s/ Lawrence E. Hyatt ------------------------------------------------------ Name: Lawrence E. Hyatt Title: Executive Vice President and Chief Financial Officer Date: June 2, 2004 3 EXHIBIT INDEX Exhibit Number Description 2.1 Amendment No. 1 to Agreement and Plan of Merger, dated as of June 2, 2004, by and among Cole National Corporation, Luxottica Group S.p.A. and Colorado Acquisition Corp. 99.1 Press release of Cole National Corporation, dated June 2, 2004 4 EX-2 2 jun02_8kex.txt EX 2.1, AMENDMENT TO AGREEMENT AND PLAN OF MERGER AMENDMENT NO. 1 TO AGREEMENT AND PLAN OF MERGER THIS AMENDMENT NO. 1 TO AGREEMENT AND PLAN OF MERGER, dated as of June 2, 2004 (this "Amendment"), is made and entered into by and among Luxottica Group S.p.A., an Italian corporation ("Parent"), Colorado Acquisition Corp., a Delaware corporation and an indirect wholly-owned subsidiary of Parent ("Merger Sub"), and Cole National Corporation, a Delaware corporation (the "Company"). Capitalized terms used herein but otherwise not defined shall have the meaning given to such terms in the Merger Agreement (as defined below). WHEREAS, Parent, Merger Sub and the Company have entered into that certain Agreement and Plan of Merger, dated as of January 23, 2004 (the "Merger Agreement"), which contemplates the merger of Merger Sub with and into the Company upon the terms and subject to the conditions set forth in the Merger Agreement; and WHEREAS, Parent, Merger Sub and the Company desire to amend the Merger Agreement as set forth below; NOW, THEREFORE, in consideration of the mutual agreements contained herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows: ARTICLE I AMENDMENT TO MERGER AGREEMENT 1.1 DEFINITION OF MERGER PRICE. Notwithstanding anything to the contrary in the Merger Agreement, if, on or prior to July 20, 2004, the Company shall have held its 2004 annual meeting of stockholders to vote on the election of directors and at such meeting the condition set forth in Section 6.01(a) of the Merger Agreement shall have been satisfied, references in the Merger Agreement to "Merger Price" shall mean the sum of (a) $22.50 in cash plus (b) an additional amount in cash, rounded to the nearest cent, equal to (x) $22.50, multiplied by (y) 0.04, multiplied by (z) a fraction, the numerator of which is the number of days that shall have elapsed from the date upon which the condition set forth in Section 6.01(a) of the Merger Agreement shall have been satisfied to and including the Closing Date, and the denominator of which is 365. ARTICLE II MISCELLANEOUS 2.1 NO WAIVER. Nothing in this Amendment shall constitute a waiver by Parent, Merger Sub or the Company of any breach or default on the part of any party to the Merger Agreement. 2.2 GOVERNING LAW; JURISDICTION. The provisions of Section 8.05 of the Merger Agreement shall apply to this Amendment as if references to "Agreement" therein were to this Amendment. 2.3 NO OTHER AGREEMENTS. This Amendment together with the Merger Agreement (as amended by this Amendment and including the documents and instruments referred to therein), the Confidentiality Agreement and the letter agreement dated April 23, 2004 between Parent and the Company constitute the entire agreement of the parties with respect to the subject matter hereof and thereof and supersedes all prior agreements or understandings, both written and oral, between the parties with respect to the subject matter hereof and thereof. 2.4 EFFECT. Except as expressly set forth herein, this Amendment shall not by implication or otherwise alter, modify, amend or in any way affect any of the representations, warranties, terms, conditions, obligations, covenants or agreements contained in the Merger Agreement, all of which shall continue in full force and effect in accordance with their respective terms. For the avoidance of doubt, the execution, delivery and effectiveness of this Amendment shall not constitute a reaffirmation, remaking, withdrawal or modification as of the date of this Amendment of any of the representations, warranties or covenants of any party hereto. 2.5 COUNTERPARTS; EXECUTION AND DELIVERY BY FACSIMILE. This Amendment may be executed in two or more counterparts, each of which shall be deemed to be an original, but all of which shall constitute one and the same agreement. This Amendment may be executed and delivered by facsimile, with such delivery to be as effective as delivery of an originally executed counterpart hereof. [Signature Page Follows] IN WITNESS WHEREOF, the parties hereto caused this Amendment to be duly executed as of the date first above written. LUXOTTICA GROUP S.P.A. By: /s/ Enrico Cavatorta -------------------------------- Name: Enrico Cavatorta Title: Chief Financial Officer COLORADO ACQUISITION CORP. By: /s/ Vito Giannola -------------------------------- Name: Vito Giannola Title: Chief Financial Officer and Treasurer COLE NATIONAL CORPORATION By: /s/ Larry Pollock -------------------------------- Name: Larry Pollock Title: President and Chief Executive Officer EX-99.1 3 jun02_8kex2.txt EX 99.1, PRESS RELEASE [Cole National Logo] PRESS RELEASE For Immediate Release - -------------------------------------------------------------------------------- 1925 Enterprise Parkway Listed on New York Exchange Twinsburg, Ohio 44087 Symbol "CNJ" (330) 486-3100 Contact: Joseph Gaglioti COLE NATIONAL CORPORATION ANNOUNCES AMENDMENT TO LUXOTTICA MERGER AGREEMENT; SETS JULY 20 ANNUAL MEETING DATE TO CONSIDER LUXOTTICA MERGER AND ELECTION OF DIRECTORS CLEVELAND, JUNE 2, 2004 /PRNewswire-FirstCall/ -- Cole National Corporation (NYSE: CNJ) today announced that its Board of Directors had unanimously approved an amendment to its merger agreement with Luxottica Group S.p.A., and had set July 20, 2004 as the date of its annual meeting of stockholders to consider the Luxottica merger agreement and the election of directors. Under the amendment to the merger agreement, the original $22.50 per share cash merger consideration would be increased by an amount equal to 4% per annum from the date on which Cole National's stockholders approve the merger agreement through the closing date of the merger, subject to the condition that the stockholder approval be obtained, and the annual meeting of stockholders to elect directors be held, on or prior to July 20, 2004. No other change was made to the Luxottica merger agreement in connection with the amendment. Cole National stated that its Board of Directors has reaffirmed its recommendation of the Luxottica merger and the Luxottica merger agreement, as amended. The Luxottica merger agreement, as amended, is subject to approval by Cole National stockholders, receipt of regulatory approvals and other customary conditions. The merger is expected to close in the second half of 2004. Prior to the consummation of the Luxottica merger, whether before or after Cole National stockholder approval of the Luxottica merger agreement, under the circumstances and subject to the conditions set forth in the Luxottica merger agreement (including the obligation to provide Luxottica an opportunity to revise the terms of its proposed transaction), Cole National has the right to terminate the Luxottica merger agreement and enter into an agreement relating to a superior proposal. As previously announced, on April 15, 2004, Moulin International Holdings Limited submitted an unsolicited, non-binding offer to acquire Cole National in a merger at a price of $25.00 per share in cash, and Cole National postponed the special meeting of stockholders that had been scheduled for April 20, 2004 to consider the Luxottica transaction. On May 13, 2004, Cole National announced that Moulin had informed Cole National that one of Moulin's financing sources was not prepared to go forward with its financial commitment on the basis contemplated in Moulin's acquisition proposal, and that Moulin was continuing to evaluate alternatives. Moulin has informed Cole National that it is working to finalize restructured financing arrangements that could allow Moulin's proposal to proceed. There can be no assurance as to whether discussions with Moulin will continue, whether Moulin will be able to obtain financing for its proposal, whether any agreement with Cole National would result from any such discussions, or the terms and conditions thereof. Stockholders of record of Cole National as of May 21, 2004 will be entitled to vote on the matters to be considered at the annual meeting of stockholders, including the Luxottica transaction. Cole National plans to mail definitive proxy material to its stockholders relating to the annual meeting on or about June 7, 2004. ABOUT COLE NATIONAL - -------------------------------------------------------------------------------- Cole National Corporation's vision business, together with Pearle franchisees, has 2,178 locations in the U.S., Canada, Puerto Rico and the Virgin Islands and includes Cole Managed Vision, one of the largest managed vision care benefit providers with multiple provider panels and nearly 20,000 practitioners. Cole's personalized gift business, Things Remembered, serves customers through 727 locations nationwide, catalogs, and the Internet at www.thingsremembered.com. Cole National also has a 21% interest in Pearle Europe, which operates retail optical locations in Austria, Belgium, Denmark, Estonia, Finland, Germany, Italy, Kuwait, Norway, the Netherlands, Poland, Portugal and Sweden. Cole National filed a definitive proxy statement containing information about the proposed Luxottica merger with the United States Securities and Exchange Commission (the "SEC") on March 15, 2004, which stockholders are urged to read because it contains important information. Cole National intends to file on June 4, 2004 a definitive annual meeting proxy statement and other relevant documents concerning the proposed Luxottica transaction and the other matters to be considered at the 2004 Annual Meeting of Cole National with the SEC, which stockholders are urged to read when it becomes available, because it will contain important information. Stockholders may obtain, free of charge, a copy of the definitive proxy statement, the annual meeting proxy statement (when it is available) and other documents filed by Cole National with the SEC at the SEC's website, www.sec.gov. In addition, documents filed with the SEC by Cole National will be available free of charge from Cole National. Cole National and its directors and executive officers and certain other of its employees may be soliciting proxies from stockholders of Cole National in favor of the proposed Luxottica transaction and the other matters to be considered at the 2004 Annual Meeting of Cole National. Information concerning the participants in the proxy solicitation will be set forth in the definitive proxy statement as filed with the SEC, as it may be amended or supplemented. SAFE HARBOR STATEMENT - -------------------------------------------------------------------------------- Certain statements in this press release may constitute "forward-looking statements" as defined in the Private Securities Litigation Reform Act of 1995. Such statements involve risks, uncertainties and other factors that could cause actual results to differ materially from those which are anticipated. Such risks and uncertainties include, but are not limited to, risks that the Luxottica merger will not be completed, risks that stockholder approval may not be obtained for the Luxottica merger, legislative or regulatory developments that could have the effect of delaying or preventing the Luxottica merger, uncertainties as to whether any transaction will be entered into with Moulin or, if entered into, will be consummated, fluctuations in exchange rates, economic and weather factors affecting consumer spending, the ability to successfully introduce and market new products, the ability to effectively integrate recently acquired businesses, the ability to successfully launch initiatives to increase sales and reduce costs, the availability of correction alternatives to prescription eyeglasses, as well as other political, economic and technological factors and other risks referred to in Cole National's filings with the Securities and Exchange Commission. These forward-looking statements are made as of the date hereof, and Cole National does not assume any obligation to update them. Contact: Cole National Corporation or Kekst and Company Joseph Gaglioti Victoria Weld/Ruth Pachman Tel.: +1 330-486-3100 Tel.: +1 212-521-4800 -----END PRIVACY-ENHANCED MESSAGE-----