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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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AMENDMENT NO. 5
(FINAL AMENDMENT)
TO
SCHEDULE 14D-1
Tender Offer Statement Pursuant to
Section 14(d)(1) of the Securities Exchange Act of 1934
AND
AMENDMENT NO. 1
TO
SCHEDULE 13D
Pursuant to the Securities Exchange Act Of 1934
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New West Eyeworks, Inc.
(Name of Subject Company)
NW Acquisition Corp.
National Vision Associates, Ltd.
(Bidders)
Common Stock, Par Value $0.01 Per Share
(Title of Class of Securities)
649156 10 6
(CUSIP Number of Class of Securities)
___________________
James W. Krause, Chairman and Chief Executive Officer
National Vision Associates, Ltd.
296 Grayson Highway
Lawrenceville, Georgia 30045
(770) 822-3600
(Name, Address and Telephone Number of Person Authorized to Receive
Notices and Communications on Behalf of Bidders)
COPIES TO:
Mitchell Goodman, Esq.
National Vision Associates, Ltd.
296 Grayson Highway
Lawrenceville, Georgia 30045
(770) 822-3600
David A. Stockton, Esq.
Kilpatrick Stockton LLP
1100 Peachtree Street, Suite 2800
Atlanta, Georgia (404) 815-6500
<PAGE>
CALCULATION OF FILING FEE
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| Amount of |
| Transaction Valuation* | Filing Fee*
|-------------------------------------------|-------------------------------
| $71,615,245 | $14,323.05
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* Estimated for purposes of calculating amount of filing fee only as
described in the original filing; amount previously paid.
[x] Check box if any part of the fee is offset as provided by Rule 0-
11(a)(2) and identify the filing with which the offsetting fee was
previously paid. Identify the previous filing by registration
statement number, or the Form or Schedule and the date of its
filing.
Amount Previously Paid: $14,323.05 Filing Party: NW Acquisition Corp.
Form or Registration No.: Schedule 14D-1 and National Vision Associates, Ltd.
Date Filed: July 20, 1998
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This Amendment No. 5 constitutes (i) the final amendment to the
Tender Offer Statement on Schedule 14D-1 of National Vision
Associates, Ltd., a Georgia corporation, and its wholly-owned
subsidiary, NW Acquisition Corp., a Delaware corporation, filed with
the Commission on July 20, 1998, as amended by Amendment No. 1 to
Schedule 14D-1, filed on August 18, 1998, Amendment No. 2 to Schedule
14D-1, filed on September 30, 1998, Amendment No. 3 to Schedule 14D-
1, filed on October 5, 1998, and Amendment No. 4 to Schedule 14D-1,
filed on October 9, 1998, with respect to an offer to purchase all
outstanding shares of common stock, par value $0.01 per share, of New
West Eyeworks, Inc.; and (ii) the sole amendment to the Statement on
Schedule 13D of the Bidders filed with the Commission on July 20,
1998. The information set forth in this Amendment No. 5 to Schedule
14D-1 shall be deemed to be incorporated by reference into the
Amendment to Schedule 13D. Unless the context otherwise requires,
capitalized terms not defined in this Amendment have the meanings
assigned to them in the Tender Offer Statement.
The Schedule 14D-1 is hereby amended and/or supplemented as
provided below:
ITEM 6. INTEREST IN SECURITIES OF THE SUBJECT COMPANY.
(a) and (b) Pursuant to the Offer, which expired at Midnight,
Eastern Time, on Thursday, October 22, 1998, the Purchaser purchased a
total of 5,590,940 Shares on October 23, 1998, representing
approximately 97% of the outstanding Shares.
In accordance with the terms of the Merger Agreement, after the
Purchaser purchased the 5,590,940 Shares, the Purchaser merged with
and into the Company on October 23, 1998, pursuant to the "short-form"
merger procedure permitted under Section 253 of the General
Corporation Law of the State of Delaware. In connection with the
Merger, each issued and outstanding Share (other than those owned by
Parent or the Purchaser, any Shares held in the treasury of the
Company and Shares with respect to which appraisal rights have been
demanded and perfected in accordance with applicable Delaware law)
were converted into and represent the right to receive $11.50 in cash,
without interest.
<PAGE>
ITEM 10. ADDITIONAL INFORMATION.
(f) The Purchaser announced in a press release issued by Parent
on October 23, 1998 that it had accepted for payment all Shares
tendered into the Offer. Such press release is included as Exhibit
(a)(18) to the Schedule 14D-1 and is incorporated herein by reference.
In addition, the Purchaser filed a Certificate of Ownership and Merger
in the Department of State of the State of Delaware. Such Certificate
of Ownership and Merger is included as Exhibit (a)(19) and is
incorporated herein by reference.
ITEM 11. MATERIAL TO BE FILED AS EXHIBITS.
(a)(18) Text of Press Release of National Vision Associates,
Ltd., dated October 23, 1998, with respect to acceptance of
tendered Shares for payment.
(a)(19) Certificate of Ownership and Merger.
<PAGE>
SIGNATURE
After due inquiry and to the best of my knowledge and belief, I
certify that the information set forth in this statement is true,
complete and correct.
Dated: October 23, 1998
NW ACQUISITION CORP.
By: /s/ MITCHELL GOODMAN
Name: Mitchell Goodman
Title: Vice President, General Counsel and Secretary
NATIONAL VISION ASSOCIATES, LTD.
By: /s/ MITCHELL GOODMAN
Name: Mitchell Goodman
Title: Senior Vice President, General Counsel
and Secretary
<PAGE>
EXHIBIT INDEX
EXHIBIT
NUMBER EXHIBIT NAME
(a)(18) Text of Press Release of National Vision Associates,
Ltd., dated October 23, 1998, with respect to
acceptance of tendered Shares for payment
(a)(19) Certificate of Ownership and Merger.
Exhibit (a)(18)
CONTACTS:
Angus Morrison
Senior Vice President, CFO & Treasurer
770-822-4285
www.nationalvision.com
Janice J. Kuntz
Fleishman-Hillard, Inc.
404-659-4446
FOR IMMEDIATE RELEASE
October 23, 1998
NATIONAL VISION ASSOCIATES, LTD. ANNOUNCES CLOSING OF TENDER
OFFER FOR NEW WEST EYEWORKS, INC. AND
APPOINTMENT OF BARRY J. FELD AS PRESIDENT
LAWRENCEVILLE, Georgia October 23, 1998 -- National Vision
Associates, Ltd. (NASDAQ: NVAL) today announced that it has accepted
for payment all shares tendered into the offer to purchase shares of
common stock of New West Eyeworks, Inc. (NASDAQ: NEWI). The offer
expired at 12:00 Midnight, Eastern Time on Thursday, October 22, 1998.
National Vision purchased approximately 5.5 million shares of New West
common stock, representing approximately 97 percent of the outstanding
shares of New West.
James W. Krause, Chairman and Chief Executive Officer of National
Vision said, "We are excited at the prospect of combining our
organizations. Our combined companies will have approximately 930
locations and be the second largest in the United States in terms of
number of locations and third in overall revenues. We believe our
company is well positioned to create a national value retail optical
chain."
As part of the announcement, National Vision also announced that Barry
J. Feld, President and Chief Executive Officer of New West, would
become President and Chief Operating Officer of National Vision. Mr.
Krause said, "Barry Feld brings a high level of energy, enthusiasm and
operational expertise to our company. We look forward to his joining
our team and helping us create value for our shareholders."
National Vision will proceed to complete the merger of the two
companies, which is expected to occur shortly.
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National Vision Associates, Ltd.
October 23, 1998
Page Two
National Vision Associates, Ltd., with a total of 915 locations, is
the nation's second largest optical company in terms of locations,
including 178 locations acquired as part of the New West transaction,
283 locations with Frame-n-Lens and 50 freestanding locations that
operate under the trade name, Midwest Vision. The Company's retail
operations offer a full line of optical goods including spectacles,
contact lenses, prescription and non-prescription sunglasses and a
full line of optical accessories. In addition, independent Doctors of
Optometry are available adjacent to store locations.
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Any expectations, beliefs, and other non-historical statements
contained in this press release are forward looking statements within
the meaning of the Private Securities Litigation Reform Act of 1995
(the "Act"). Actual results may differ materially due to a variety of
factors that affect the Company. Forward-looking statements involve
risks and uncertainties, including but not limited to, the uncertainty
as to whether the transactions discussed in the press release will be
completed. Such factors are described in a cautionary statement for
purposes of the "Safe Harbor" provisions of the Act, contained in the
Company's Report on Form 10-Q for the second quarter of 1998. Other
risks and uncertainties are detailed from time to time in National
Vision's periodic reports filed with the Securities and Exchange
Commission, including its Annual Report for 1997 on Form 10-K and its
quarterly reports on Form 10-Q.
# # #
Exhibit (a)(19)
CERTIFICATE OF OWNERSHIP AND MERGER
OF
NW ACQUISITION CORP.
AND
NEW WEST EYEWORKS, INC.
Pursuant to the provisions of the General Corporation Law of the
State of Delaware, the undersigned corporation hereby certifies as
follows:
1. The constituent business corporations participating in
the merger herein certified (the "Merger") are:
(i) NW Acquisition Corp., the parent corporation,
which is incorporated under the laws of the State of Delaware; and
(ii) New West Eyeworks, Inc., (the "Company"), which is
incorporated under the laws of the State of Delaware.
2. NW Acquisition Corp. owns more than 90% of the
outstanding shares of the common stock of the Company, which is the
only class of stock of the Company.
3. The following are the resolutions adopted on the 13th
day of July, 1998, by the Board of Directors of NW Acquisition Corp.
approving the Merger:
BE IT RESOLVED, that NW Acquisition Corp. shall be merged
with and into the Company at the effective time of the Merger.
FURTHER RESOLVED, that the terms and conditions of the
proposed merger are as follows:
Following the Merger, the Company shall continue as the
surviving corporation and shall succeed to and assume all the rights
and obligations of NW Acquisition Corp. in accordance with the General
Corporation Law of the State of Delaware, and the separate corporate
existence of NW Acquisition Corp. shall cease.
Each share of common stock, par value $0.01 per share of NW
Acquisition Corp. issued and outstanding immediately prior to the
effective time of the merger shall be converted into one issued and
outstanding share of common stock, par value $0.01 per share of the
Company, and from and after the effective time of the Merger, the
holders of all of said issued and outstanding shares of common stock
of NW Acquisition Corp. shall automatically be and become holders of
shares of the Company upon the basis above specified.
<PAGE>
At the Effective Time of the Merger, James W. Krause, Barry
J. Feld, Mitchell Goodman and Angus C. Morrison shall become the
directors and officers of the Company until their successors are duly
elected and qualified.
Each share of common stock issued and outstanding
immediately prior to the effective time of the Merger that is not
owned by NW Acquisition Corp. shall be converted into the right to
receive from the Company the amounts paid by NW Acquisition Corp. for
shares in the Company pursuant to a tender offer (the "Merger
Consideration"). As of the effective time of the Merger, all such
shares of common stock shall no longer be outstanding and shall
automatically be canceled and retired and shall cease to exist, and
each holder of a certificate representing any such shares of common
stock shall cease to have any rights with respect thereto, except the
right to receive the Merger Consideration.
Notwithstanding anything herein to the contrary, any issued
and outstanding shares of common stock with respect to which appraisal
rights have been demanded pursuant to Delaware law shall become the
right to receive such consideration as may be determined to be due
with respect to such shares pursuant to the laws of the State of
Delaware; provided, however, that if such demand for appraisal rights
has been withdrawn or lost, such shares shall be deemed to be
converted as of the effective time of the Merger into the right to
receive the Merger Consideration.
The name of the surviving corporation in the Merger is New
West Eyeworks, Inc., which will continue its existence as said
surviving corporation under its present name upon the effective date
of the Merger pursuant to the provisions of the General Corporation
Law of the State of Delaware.
4. The Certificate of Incorporation of the Company shall
be the certificate attached hereto as Exhibit A, which the Company
files herewith.
5. The executed Agreement and Plan of Merger between the
aforesaid constituent corporations is on file at the principal place
of business of the aforesaid surviving corporation, the address of
which is as follows: 2104 West Southern Avenue Tempe, Arizona 85282.
6. A copy of the aforesaid Agreement and Plan of Merger
will be furnished by the aforesaid surviving corporation, on request,
and without cost, to any stockholder of each of the aforesaid
constituent corporations.
7. The Merger has been approved by National Vision
Associates, Ltd., which is the sole stockholder of NW Acquisition
Corp. and which consented to the Merger in writing and waived a
stockholders' meeting.
8. The Merger shall become effective at the time and date
of filing of this Certificate of Ownership and Merger in the
Department of State of the State of Delaware.
2<PAGE>
Dated: October 23, 1998.
NEW WEST EYEWORKS, INC.
By: /s/ Barry J. Feld
Barry J. Feld, President
<PAGE>
EXHIBIT A
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
NEW WEST EYEWORKS, INC.
FIRST
The name of the Corporation is:
New West Eyeworks, Inc.
SECOND
The Corporation is organized pursuant to the General Corporation
Law of Delaware.
THIRD
The purpose for which the Corporation is organized is to engage
in any lawful act or activity for which corporations may be organized
under the General Corporation Law of Delaware, and the Corporation
shall have all powers necessary to engage in such acts or activities,
including, but not limited to, the powers enumerated in the General
Corporation Law of Delaware or any amendment thereto.
FOURTH
The total number of shares of stock which the Corporation shall
have authority to issue is 100,000 shares. The par value of such
shares is $0.01. All such shares are of one class and are shares of
Common Stock.
FIFTH
The address, including street, number, city and county of
the registered office of the Corporation in the State of Delaware is
1013 Centre Road, City of Wilmington, County of New Castle, 19805.
The initial registered agent of the Corporation at that address shall
be Corporation Service Company.
<PAGE>
SIXTH
The business and affairs of the Corporation shall be managed by
the Board of Directors, and the directors need not be selected by
ballot unless required by the By-Laws of the Corporation.
SEVENTH
In furtherance, and not in limitation, of the powers
conferred by statute, the Board of Directors is expressly authorized
to adopt, make, alter or repeal the By-Laws of the Corporation.
EIGHTH
The Corporation reserves the right to amend, alter, change
or repeal any provision contained in this Certificate of Incorporation
in the manner now or hereafter prescribed by statute, and all rights
conferred upon stockholders herein are granted subject to this
reservation.
NINTH
The personal liability of the directors of the Corporation
is hereby eliminated to the fullest extent permitted by paragraph (7)
of subsection (b) of Section 102 of the General Corporation Law of
Delaware, as amended or supplemented from time to time.
TENTH
The Corporation shall, to the fullest extent permitted by
Section 145 of the General Corporation Law of Delaware, as amended or
supplemented from time to time, indemnify any and all persons whom it
shall have power to indemnify under said section from and against any
and all of the expenses, liabilities, or other matters referred to in
or covered by said section, and the indemnification provided for
herein shall not be deemed exclusive of any other rights to which
those indemnified may be entitled under any By-Law, agreement, vote of
stockholders or disinterested directors or otherwise, both as to
action in his official capacity and as to action in another capacity
while holding such office, and shall continue as to a person who has
ceased to be a director or officer and shall inure to the benefit of
the heirs, executors, and administrators of such person.
Notwithstanding the foregoing, with respect to matters
occurring prior to the effective time of the merger of NW Acquisition
Corp. with and into New West Eyeworks, Inc., the former directors,
officers, employees and agents of New West Eyeworks, Inc. shall have
all of the rights set forth in Article VIII of the Restated
Certificate of Incorporation of New West Eyeworks, Inc. as in effect
immediately prior to the effective time of the merger. For purposes
of the preceding sentence, Article VIII of such Restated Certificate
of Incorporation of New West Eyeworks, Inc. is incorporated herein by
reference.
ELEVENTH
The Corporation is to have perpetual existence.
TWELFTH
Whenever a compromise or arrangement is proposed between
this Corporation and its creditors or any class of them and/or between
-2-<PAGE>
this Corporation and its stockholders or any class of them, any court
of equitable jurisdiction within the State of Delaware may, on the
application in a summary way of this Corporation or of any creditor or
stockholder thereof or on the application of any receiver or receivers
appointed for this Corporation under Section 291 of Title 8 of the Delaware
Code or on the application of trustees in dissolution or of any
receiver or receivers appointed for this Corporation under Section 279 of
Title 8 of the Delaware Code order a meeting of the creditors or class
of creditors, and/or of the stockholders or class of stockholders of
this Corporation, as the case may be, to be summoned in such manner as
the said court directs. If a majority in number representing three
fourths in value of the creditors or class of creditors, and/or of the
stockholders or class of stockholders of this Corporation, as the case
may be, agree to any compromise or arrangement and to any
reorganization of this Corporation as consequence of such compromise
or arrangement and to any reorganization of this Corporation as
consequence of such compromise or arrangement, the said compromise or
arrangement and the said reorganization shall, if sanctioned by the
court to which the said application has been made, be binding on all
the creditors or class of creditors, and/or on all the stockholders or
class of stockholders, of this Corporation, as the case may be, and
also on this Corporation.
-3-
