<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON DECEMBER 4, 1997
REGISTRATION STATEMENT NO. 333-34963
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------
AMENDMENT NO. 3
TO
FORM S-1
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
------------------
COLE NATIONAL GROUP, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
Delaware
(STATE OR OTHER JURISDICTION
OF INCORPORATION OR ORGANIZATION)
5995
(PRIMARY STANDARD
INDUSTRIAL CLASSIFICATION CODE NUMBER)
34-1744334
(I.R.S. EMPLOYER
IDENTIFICATION NUMBER)
------------------
5915 Landerbrook Drive
Mayfield Heights, Ohio 44124
(440) 449-4100
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF
REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
------------------
WAYNE L. MOSLEY
Vice President and Controller
Cole National Corporation
5915 Landerbrook Drive
Mayfield Heights, Ohio 44124
(440) 449-4100
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER,
INCLUDING AREA CODE, OF AGENT FOR SERVICE)
------------------
COPIES TO:
DAVID P. PORTER, Esq.
Jones, Day, Reavis & Pogue
901 Lakeside Avenue
Cleveland, Ohio 44114
(216) 586-3939
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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC:
As soon as practicable after this Registration Statement becomes effective.
------------------
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933 check the following box. [X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
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CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
==================================================================================================================
PROPOSED PROPOSED
MAXIMUM MAXIMUM
AMOUNT OFFERING AGGREGATE AMOUNT OF
TITLE OF EACH CLASS OF TO BE PRICE PER OFFERING REGISTRATION
SECURITIES TO BE REGISTERED REGISTERED UNIT(1) PRICE(1) FEE
------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
8 5/8% Senior Subordinated Notes due
2007.................................. $125,000,000 100% $125,000,000 $37,878.79
==================================================================================================================
</TABLE>
(1) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457.
------------------
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF
THE SECURITIES ACT OF 1933 OR UNTIL THIS REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(a),
MAY DETERMINE.
<PAGE> 2
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 13. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The following is a list of the estimated expenses to be incurred by the
Company in connection with the issuance and distribution of the Notes being
registered hereby.
<TABLE>
<S> <C>
Securities and Exchange Commission registration fee............................... $ 37,879
Printing costs.................................................................... 50,000
Accounting fees and expenses...................................................... 30,000
Legal fees and expenses (not including Blue Sky).................................. 50,000
Blue Sky fees and expenses........................................................ 10,000
Miscellaneous expenses............................................................ 22,121
--------
Total........................................................................... $200,000
========
</TABLE>
ITEM 14. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Article Seventh of the Company's Certificate provides that the Company will
indemnify its officers, directors and each person who is or was serving or who
had agreed to serve at the request of the Board of Directors or an officer of
the Company as an employee or agent of the Company or as a director, officer,
employee or agent of another corporation, partnership, joint venture, trust or
other enterprise to the full extent permitted by the General Corporation Law of
the State of Delaware (the "DGCL") or any other applicable laws as from time to
time may be in effect and that the Company may enter into agreements which
provide for indemnification greater or different from that provided in the
Certificate. In addition, the Company has provided in Article Sixth of its
Certificate that no director will be personally liable to the Company or its
stockholders for or with respect to any acts or omissions in the performance of
his or her duties as a director, to the full extent permitted by the DGCL or any
other applicable laws as from time to time may be in effect. The Certificate
further provides that any repeal or modification of Article Seventh or Article
Sixth will not adversely affect the right or protection existing under such
provision prior to such repeal or modification.
Subsection (a) of the Section 145 of the DGCL empowers a corporation to
indemnify any person who was or is a party or is threatened to be made a party
to any threatened, pending or completed action, suit or proceeding, whether
civil, criminal, administrative, or investigative (other than an action by or in
the right of the corporation) by reason of the fact that he is or was a
director, officer, employee or agent of the corporation, or is or was serving at
the request of the corporation as a director, officer, employee or agent of
another corporation or enterprise, against expenses (including attorneys' fees),
judgments, fines and amounts paid in settlement actually and reasonably incurred
by him in connection with such action, suit or proceeding if he acted in good
faith and in a manner reasonably believed to be in or not opposed to the best
interests of the corporation, and, with respect to any criminal action or
proceeding, had no reasonable cause to believe his conduct was unlawful.
Subsection (b) of Section 145 of the DGCL empowers a corporation to
indemnify any person who was or is a party or is threatened to be made a party
to any threatened, pending or completed action or suit by or in the right of the
corporation to procure a judgment in its favor by reason of the fact that such
person acted in any of the capacities set forth above, against expenses
(including attorneys' fees) actually and reasonably incurred by him in
connection with the defense or settlement of such action or suit if he acted
under standards similar to those set forth in the paragraph above, except that
no indemnification may be made in respect of any claim, issue or matter as to
which such person shall have been adjudged to be liable to the corporation,
unless and only to the extent that the Court of Chancery of the State of
Delaware or the court in which such action or suit was brought shall determine
that despite the adjudication of liability but in view of all the circumstances
of the case, such person is fairly and reasonably entitled to be indemnified for
such expenses which the court shall deem proper.
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<PAGE> 3
Section 145 further provides that, to the extent that a director or officer
of a corporation has been successful on the merits or otherwise in defense of
any action, suit or proceeding referred to in subsections (a) and (b) of Section
145, or in defense of any claim, issue or matter therein, he will be indemnified
against expenses (including attorneys' fees) actually and reasonably incurred by
him in connection therewith; that any indemnification under subsections (a) and
(b) of Section 145 (unless ordered by a court) will be made by a corporation
only as authorized in the specific case upon a determination that
indemnification of the director, officer, employee or agent is proper in the
circumstances because he has met the applicable standard of conduct set forth in
subsections (a) and (b) of Section 145; that expenses incurred by an officer or
director in defending any civil, criminal, administrative or investigative
action, suit or proceeding may be paid by the corporation in advance of the
final disposition of such action, suit or proceeding upon receipt of an
undertaking by or on behalf of such director or officer to repay such amount
unless it is ultimately determined that he is not entitled to be indemnified by
the corporation; that indemnification provided for by Section 145 will not be
deemed exclusive of any other rights to which the indemnified party may be
entitled; and that a corporation is empowered to purchase and maintain insurance
on behalf of a director or officer of the corporation against any liability
asserted against him and incurred by him in such capacity, or arising out of his
status as such, whether or not the corporation would have the power to indemnify
him against such liability under Section 145.
The Parent has entered into indemnity agreements (the "Indemnity
Agreements") with the current Directors and executive officers of the Company
and expects to enter into similar agreements with any Director or those
executive officers designated by the Board of Directors of the Company elected
or appointed in the future at the time of their election or appointment.
Pursuant to the Indemnity Agreements, the Parent will indemnify a Director
or officer of the Company (the "Indemnitee") if the Indemnitee is a party or is
threatened to be made a party to any threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative or investigative, by
reason of the fact that the Indemnitee is or was a Director or officer of the
Company, or is or was serving at the request of the Company in certain
capacities with another entity, against any and all costs, charges and expenses,
judgments, fines and amounts paid in settlement actually and reasonably incurred
by the Indemnitee in connection with the defense or settlement of such
proceeding. Indemnity is available to the Indemnitee unless it proved by clear
and convincing evidence that the Indemnitee's action or failure to act was not
in good faith and in a manner he reasonably believed to be in or not opposed to
the best interests of the Company.
The Indemnity Agreements mandate advancement of expenses to the Indemnitee
if the Indemnitee provides the Parent with a written promise that (i) he has
reasonably incurred or will reasonably incur actual expenses in defending an
actual civil, criminal, administrative, or investigative action, suit,
proceeding or claim and (ii) he will repay such amount if it is ultimately
determined that he is not entitled to be indemnified by the Parent. In addition,
the Indemnity Agreements provide various procedures and presumptions in favor of
the Indemnitee's right to receive indemnification under the Indemnity Agreement.
Under the Parent's Director and Officer Liability Insurance Policy, each
director and certain officers of the Company are insured against certain
liabilities which might arise in connection with their respective positions with
the Company.
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<PAGE> 4
ITEM 15. RECENT SALES OF UNREGISTERED SECURITIES.
No securities of the Company which were not registered under the Securities
Act have been issued or sold by the Company within the past three years, except
as follows:
On July 19, 1993, the Parent subscribed for and purchased 1,000 shares of
the Company's Common Stock, par value $.01 per share, at a price of $1.00 per
share (an aggregate of $1,000), in reliance on the exemption from registration
afforded by Section 4(2) of the Securities Act.
On March 17, 1995, the Parent purchased 100 shares of the Company's Common
Stock, par value $.01 per share, at a price of $62,000 per share (an aggregate
of $6,200,000), in reliance on the exemption from registration afforded by
Section 4(2) of the Securities Act.
On November 13, 1996, the Company sold the Existing Senior Subordinated
Notes in an aggregate principal amount of $150,000,000 to CIBC Wood Gundy
Securities Corp., CS First Boston Corporation, NationsBanc Capital Markets, Inc.
and Smith Barney Inc. The issuance of the Existing Senior Subordinated Notes was
exempt from registration under the Securities Act pursuant to Section 4(2).
On August 22, 1997, the Company sold the Original Notes in an aggregate
principal amount of $125,000,000 to CIBC Wood Gundy Securities Corp., Credit
Suisse First Boston Corporation and McDonald & Company Securities, Inc. The
issuance of the Original Notes was exempt from registration under the Securities
Act pursuant to Section 4(2).
ITEM 16. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES.
(a) Exhibits. The following Exhibits are filed herewith and made a part
hereof:
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION OF DOCUMENT
- -------- ----------------------------------------------------------------------------------
<C> <S>
3.1(i) Certificate of Incorporation of the Company, incorporated by reference to Exhibit
3.1(i) to the Company's Registration Statement on Form S-1 (Registration No.
33-66342).
3.2(ii) By-Laws of the Company, incorporated by reference to Exhibit 3.2(ii) to the
Company's Registration Statement on Form S-1 (Registration No. 33-66342).
4.1 Indenture dated as of September 30, 1993 between the Company and Norwest Bank
Minnesota, N.A., as trustee, relating to the 11 1/4% Senior Notes due 2001 (the
form of which Senior Note is included in such Indenture), incorporated by
reference to Exhibit 4.1 to Cole National Corporation's Annual Report on Form 10-K
for the period ended February 3, 1996 (File No. 1-12814).
4.2 The Company by this filing agrees, upon request, to file with the Commission the
instruments defining the rights of holders of long-term debt of the Company and
its subsidiaries where the total amount of securities authorized thereunder does
not exceed 10% of the total assets of the Company and its subsidiaries on a
consolidated basis.
4.3 Indenture dated November 15, 1996, between the Company and Norwest Bank Minnesota,
National Association, as trustee, relating to the 9 7/8% Senior Subordinated Notes
due 2006 (the form of which Senior Subordinated Note is included in such
Indenture), incorporated by reference to Exhibit 4.1 of Cole National
Corporation's Current Report on Form 8-K, filed with the Commission on December 2,
1996 (File No. 1-12814).
*4.4 Indenture dated August 22, 1997, between the Company and Norwest Bank Minnesota,
National Association, as Trustee, relating to the 8 5/8% Senior Subordinated Notes
due 2007 (the form of which is included in such Indenture).
*4.5 Registration Rights Agreement dated August 22, 1997, by and among the Company and
CIBC Wood Gundy Securities Corp., Credit Suisse First Boston Corporation and
McDonald & Company Securities, Inc.
*4.6 First Supplemental Indenture, dated as of August 14, 1997, between the Company and
Norwest Bank, Minnesota, National Association, as Trustee, relating to the 11 1/4%
Senior Notes due 2001.
4.7 Second Supplemental Indenture, dated as of September 15, 1997, between the Company
and Norwest Bank, Minnesota, National Association, as Trustee, relating to the
11 1/4% Senior Notes due 2001.
*5.1 Opinion of Jones, Day, Reavis & Pogue as to the validity of the securities being
offered.
</TABLE>
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<PAGE> 5
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION OF DOCUMENT
- -------- ----------------------------------------------------------------------------------
<C> <S>
10.1 Employment Agreement entered into as of April 1, 1996 by and among Cole National
Corporation, the Company, Cole Gift Centers, Inc., Cole Vision Corporation, Things
Remembered, Inc. and Jeffrey A. Cole, incorporated by reference to Exhibit 10.1 to
Cole National Corporation's Annual Report on Form 10-K for the period ended
February 3, 1996 (File No. 1-12814).
10.2 Employment Agreement entered into as of April 1, 1996 by and among Cole National
Corporation, the Company, Cole Gift Centers, Inc., Cole Vision Corporation, Things
Remembered, Inc. and Brian B. Smith, incorporated by reference to Exhibit 10.2 to
Cole National Corporation's Annual Report on Form 10-K for the period ended
February 3, 1996 (File No. 1-12814).
10.3 Agreement dated March 27, 1993 between Cole National Corporation and Joseph
Gaglioti regarding termination of employment, incorporated by reference to Exhibit
10.8 to the Company's Registration Statement on Form S-1 (Registration No.
33-66342).
10.4 Agreement dated April 9, 1993 between Cole National Corporation and Wayne L.
Mosley regarding termination of employment, incorporated by reference to Exhibit
10.9 to the Company's Registration Statement on Form S-1 (Registration No.
33-66342).
10.5 1992 Management Stock Option Plan, including forms of Nonqualified Stock Option
Agreement (Time Vesting) and Nonqualified Stock Option Agreement (Performance
Option), as amended, and forms of promissory notes and pledge agreements,
incorporated by reference to Exhibit 10.11 to the Company's Registration Statement
on Form S-1 (Registration No. 33-66342).
10.6 Cole National Corporation 1993 Management Stock Option Plan, including forms of
Nonqualified Stock Option Agreement (1993 Time Vesting) and form of secured
promissory notes and stock pledge agreement, incorporated by reference to Exhibit
10.29 to the Company's Registration Statement on Form S-1 (Registration No.
33-66342).
10.7 Form of Option Agreement for Directors of the Company, incorporated by reference
to Exhibit 10.41 to Cole National Corporation's Registration Statement on Form S-1
(Registration No. 33-74228).
10.8 Nonqualified Stock Option Plan for Nonemployee Directors, incorporated by
reference to Exhibit 10.45 to Cole National Corporation's Registration Statement
on Form S-1 (Registration No. 33-74228).
10.9 Form of Nonqualified Stock Option Agreement for Nonemployee Directors,
incorporated by reference to Exhibit 10.9 to Cole National Corporation's Annual
Report on Form 10-K for the period ended February 3, 1996 (File No. 1-12814).
10.10 Cole National Corporation 1996 Management Stock Option Plan, including forms of
Nonqualified Stock Option Agreement (1996 Time Vesting), incorporated by reference
to Exhibit 10.10 to Cole National Corporation's Annual Report on Form 10-K for the
period ended February 3, 1996 (File No. 1-12814).
10.11 Management Bonus Programs, incorporated by reference to Exhibit 10.14 to the
Company's Registration Statement on Form S-1 (Registration No. 33-66342).
10.12 Management Bonus Plan, incorporated by reference to Exhibit 10.30 to the Company's
Registration Statement on Form S-1 (Registration No. 33-89996).
10.13 Executive Life Insurance Plan of Cole National Corporation, incorporated by
reference to Exhibit 10.12 to the Company's Registration Statement on Form S-1
(Registration No. 33-66342).
10.14 Medical Expense Reimbursement Plan of Cole National Corporation effective as of
February 1, 1992, incorporated by reference to Exhibit 10.13 to the Company's
Registration Statement on Form S-1 (Registration No. 33-66342).
10.15 Supplemental Retirement Benefit Plan of Cole National Corporation, incorporated by
reference to Exhibit 10.38 to Cole National Corporation's Registration Statement
on Form S-1 (Registration No. 33-74228).
10.16 Supplemental Pension Plan of Cole National Corporation, incorporated by reference
to Exhibit 10.48 to Cole National Corporation's Registration Statement on Form S-1
(Registration No. 33-74228).
</TABLE>
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<PAGE> 6
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION OF DOCUMENT
- -------- ----------------------------------------------------------------------------------
<C> <S>
10.17 Lease Agreement (Knoxville) dated as of November 28, 1979 by and between Tommy
Hensley, as agent for the real property of Mrs. Don Siegel and Cole Vision
Corporation, as amended and supplemented, incorporated by reference to Exhibit
10.15 to the Company's Registration Statement on Form S-1 (Registration No.
33-66342).
10.18 Lease Agreement (Memphis) dated as of October 2, 1991 by and between Shelby
Distribution Park and Cole Vision Corporation, incorporated by reference to
Exhibit 10.16 to the Company's Registration Statement on Form S-1 (Registration
No. 33-66342).
10.19 Lease Agreement (Richmond) dated as of April 23, 1982 by and between Daniel,
Daniel & Daniel and Cole Vision Corporation, as amended and supplemented,
incorporated by reference to Exhibit 10.17 to the Company's Registration Statement
on Form S-1 (Registration No. 33-66342).
10.20 Lease Agreement (Salt Lake) dated as of November 1, 1996 by and between Gibbons
Realty and Cole Vision Corporation, incorporated by reference to Exhibit 10.01 to
Cole National Corporation's Report on Form 10-Q for the period ended November 2,
1996 (File No. 1-12814).
10.21 Form of Lease Agreement Finite 19518 dated as of December 29, 1988 between Sears,
Roebuck and Co. and Cole Vision Corporation, incorporated by reference to Exhibit
10.23 to the Company's Registration Statement on Form S-1 (Registration No.
33-66342).
10.22 Lease Agreement (Knoxville) dated as of April 11, 1995 by and between Richard T.
Fox and Cole Vision Corporation, incorporated by reference to Exhibit 10.29 to
Cole National Corporation's Annual Report on Form 10-K for the period ended
February 3, 1996 (File No. 1-12814).
10.23 Form of Indemnification Agreement for Directors of Cole National Corporation,
incorporated by reference to Exhibit 10.19 to the Company's Registration Statement
on Form S-1 (Registration No. 33-66342).
10.24 Form of Indemnification Agreement for Officers of Cole National Corporation,
incorporated by reference to Exhibit 10.20 to the Company's Registration Statement
on Form S-1 (Registration No. 33-66342).
10.25 Master License Agreement dated as of October 2, 1986, between Montgomery Ward &
Co., Incorporated and Cole Vision Corporation, as amended, incorporated by
reference to Exhibit 10.21 to the Company's Registration Statement on Form S-1
(Registration No. 33-66342).
10.26 Master License Agreement dated as of June 12, 1986, between Montgomery Ward & Co.,
Incorporated and Bay Cities Optical Company, as amended, incorporated by reference
to Exhibit 10.22 to the Company's Registration Statement on Form S-1 (Registration
No. 33-66342).
10.27 Form of License Agreement (Optical), incorporated by reference to Exhibit 10.24 to
the Company's Registration Statement on Form S-1 (Registration No. 33-66342).
10.28 Form of License/Lease Agreement (Optical), incorporated by reference to Exhibit
10.25 to the Company's Registration Statement on Form S-1 (Registration No.
33-66342).
10.29 License Agreement (Gift Centers and Key Departments) dated as of March 16, 1995,
between Sears, Roebuck and Co. and Cole Gift Centers, Inc., as amended,
incorporated by reference to Exhibit 10.49 to Cole National Corporation's Annual
Report on Form 10-K for the year ended February 1, 1997 (File No. 1-12814).
10.30 Agreement for the Allocation of Federal Income Tax Liability and Benefits among
Members of the Parent Group dated August 23, 1985, as amended, incorporated by
reference to Exhibit 10.26 to the Company's Registration Statement on Form S-1
(Registration No. 33-66342).
10.31 Assignment and Assumption Agreement dated as of September 30, 1993 between Cole
National Corporation and the Company, incorporated by reference to Exhibit 10.24
to Cole National Corporation's Annual Report on Form 10-K for the period ended
February 3, 1996 (File No. 1-12814).
</TABLE>
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<PAGE> 7
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION OF DOCUMENT
- -------- ----------------------------------------------------------------------------------
<C> <S>
10.32 Credit Agreement, dated as of November 15, 1996, among Cole Vision Corporation,
Things Remembered, Inc., Cole Gift Centers, Inc., Pearle, Inc. and Pearle Service
Corporation and Canadian Imperial Bank of Commerce, incorporated by reference to
Exhibit 99.1 of Cole National Corporation's Current Report on Form 8-K, filed with
the Commission on December 2, 1996 (File No. 1-12814).
*10.33 First Amendment to Credit Agreement, dated as of January 13, 1997, among Cole
Vision Corporation, Things Remembered, Inc., Cole Gift Centers, Inc., Pearle, Inc.
and Pearle Service Corporation and Canadian Imperial Bank of Commerce.
*10.34 Second Amendment to Credit Agreement, dated as of August 8, 1997, among Cole
Vision Corporation, Things Remembered, Inc., Cole Gift Centers, Inc., Pearle, Inc.
and Pearle Service Corporation and Canadian Imperial Bank of Commerce.
10.35 CNG Guarantee and Cash Collateral Agreement, dated as of November 15, 1996, by the
Company and Cole National Corporation, incorporated by reference to Exhibit 99.3
of Cole National Corporation's Current Report on Form 8-K, filed with the
Commission on December 2, 1996 (File No. 1-12814).
10.36 Guarantee and Collateral Agreement, dated as of November 15, 1996, by Cole Vision
Corporation, Things Remembered, Inc., Cole Gift Centers, Inc., Pearle, Inc. and
Pearle Service Corporation and Canadian Imperial Bank of Commerce, incorporated by
reference to Exhibit 99.4 of Cole National Corporation's Current Report on Form
8-K, filed with the Commission on December 2, 1996 (File No. 1-12814).
*10.37 Agreement, dated August 4, 1997, between Cole National Corporation and Leslie D.
Dunn regarding termination of employment.
10.38 Form of Cole National Corporation 401(k) Savings Plan, incorporated by reference
to Exhibit 4.1 of Cole National Corporation's Registration Statement on Form S-8,
filed with the Commission on November 20, 1997 (Reg. No. 333-40609).
*12.1 Statements regarding computation of ratios.
*21.1 List of Subsidiaries.
*23.1 Consent of Jones, Day, Reavis & Pogue (contained in Exhibit 5.1).
*23.2 Consent of Arthur Andersen LLP.
*23.3 Consent of KPMG Peat Marwick LLP.
*24.1 Powers of Attorney.
*25.1 Statement of Eligibility of Trustee, Norwest Bank Minnesota, National Association,
on Form T-1.
*99.1 Form of Letter of Transmittal.
*99.2 Form of Notice of Guaranteed Delivery.
</TABLE>
* Previously filed.
(b) Financial Statement Schedules
<TABLE>
<CAPTION>
SCHEDULE
NUMBER DESCRIPTION OF DOCUMENT
- --------- --------------------------------------------------------------------------------
<C> <S>
I Condensed Financial Information of Cole National Group, Inc, incorporated by
reference to Schedule I of Cole National Group, Inc.'s Annual Report on Form
10-K for the period ended February 1, 1997 (File No. 33-66342).
</TABLE>
All other financial statement schedules are omitted because they are either
not applicable or the required information is included in the financial
statements or notes thereto appearing elsewhere in this Registration Statement.
ITEM 17. UNDERTAKINGS.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers and controlling persons of the
Company pursuant to the foregoing provisions or otherwise, the Company has been
advised that in the opinion of the Securities and Exchange Commission, such
indemnification is against public policy as expressed in said Act and is,
therefore, unenforceable. In the event
II-6
<PAGE> 8
that a claim for indemnification against such liabilities (other than the
payment by the Company of expenses incurred or paid by a director, officer or
controlling person of the Company in the successful defense of any action, suit
or proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the Company will, unless in the
opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Act and will
be governed by the final adjudication of such issue.
The undersigned registrant hereby undertakes that:
(1) For purposes of determining any liability under the Securities Act
of 1933, the information omitted from the form of prospectus filed as a
part of this registration statement in reliance upon Rule 430A and
contained in form of prospectus filed by the registrant pursuant to Rule
424(b)(1) or (4) or 497(h) under the Securities Act shall be deemed to be
part of this registration statement as of the time it was declared
effective.
(2) For the purpose of determining any liability under the Securities
Act of 1933, each post-effective amendment that contains a form of
prospectus shall be deemed to be a new registration statement relating to
the securities offered therein, and the offering of such securities at that
time shall be deemed to be the initial bona fide offering thereof.
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in the registration statement. Notwithstanding the foregoing, any
increase or decrease in the volume of securities offered (if the total
dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the estimated
maximum offering range may be reflected in the form of prospectus filed
with the Commission pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than a 20% change in the
maximum aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective registration statement;
(iii) To include any material information with respect to the plan
of distribution not previously disclosed in the registration statement
or any material change to such information in the registration
statement;
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
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<PAGE> 9
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Company has
duly caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Cleveland, State of Ohio,
on December 4, 1997.
COLE NATIONAL GROUP, INC.
By: /s/ Wayne L. Mosley
----------------------------------
Wayne L. Mosley
Vice President and Controller
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THIS
REGISTRATION STATEMENT HAS BEEN SIGNED BY THE FOLLOWING PERSONS IN THE
CAPACITIES AND ON THE DATES INDICATED.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- ------------------------------ ------------------------------------------ ------------------
<S> <C> <C>
* Chairman, Chief Executive Officer, December 4, 1997
- ------------------------------ Chief Financial Officer and Director
Jeffrey A. Cole (Principal Executive Officer
and Principal Financial Officer)
* President, Chief Operating December 4, 1997
- ------------------------------ Officer and Director
Brian B. Smith
/s/ Wayne L. Mosley Vice President, Controller, December 4, 1997
- ------------------------------ Assistant Secretary and
Wayne L. Mosley Assistant Treasurer
(Principal Accounting Officer)
* Director December 4, 1997
- ------------------------------
Timothy F. Finley
* Director December 4, 1997
- ------------------------------
Irwin N. Gold
* Director December 4, 1997
- ------------------------------
Peter V. Handal
* Director December 4, 1997
- ------------------------------
Charles A. Ratner
* Director December 4, 1997
- ------------------------------
Walter J. Salmon
</TABLE>
- ---------------
* The undersigned, pursuant to a Power of Attorney executed by each of the
Directors and officers identified above and filed with the Securities and
Exchange Commission, by signing his name hereto, does hereby sign and execute
this Registration Statement on behalf of each of the persons noted above, in
the capacities indicated.
<TABLE>
<S> <C> <C>
By: /s/ Wayne L. Mosley December 4, 1997
-------------------------------------------
Wayne L. Mosley, Attorney-in-Fact
</TABLE>
II-8
<PAGE> 10
EXHIBIT INDEX
<TABLE>
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EXHIBITS DESCRIPTION
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<C> <S>
3.1(i) Certificate of Incorporation of the Company, incorporated by reference to Exhibit
3.1(i) to the Company's Registration Statement on Form S-1 (Registration No.
33-66342).
3.2(ii) By-Laws of the Company, incorporated by reference to Exhibit 3.2(ii) to the
Company's Registration Statement on Form S-1 (Registration No. 33-66342).
4.1 Indenture dated as of September 30, 1993 between the Company and Norwest Bank
Minnesota, N.A., as trustee, relating to the 11 1/4% Senior Notes due 2001 (the
form of which Senior Note is included in such Indenture), incorporated by
reference to Exhibit 4.1 to Cole National Corporation's Annual Report on Form
10-K for the period ended February 3, 1996 (File No. 1-12814).
4.2 The Company by this filing agrees, upon request, to file with the Commission the
instruments defining the rights of holders of long-term debt of the Company and
its subsidiaries where the total amount of securities authorized thereunder does
not exceed 10% of the total assets of the Company and its subsidiaries on a
consolidated basis.
4.3 Indenture dated November 15, 1996, between the Company and Norwest Bank
Minnesota, National Association, as trustee, relating to the 9 7/8% Senior
Subordinated Notes due 2006 (the form of which Senior Subordinated Note is
included in such Indenture), incorporated by reference to Exhibit 4.1 of Cole
National Corporation's Current Report on Form 8-K, filed with the Commission on
December 2, 1996 (File No. 1-12814).
*4.4 Indenture dated August 22, 1997, between the Company and Norwest Bank Minnesota,
National Association, as Trustee, relating to the 8 5/8% Senior Subordinated
Notes due 2007 (the form of which is included in such Indenture).
*4.5 Registration Rights Agreement dated August 22, 1997, by and among the Company and
CIBC Wood Gundy Securities Corp., Credit Suisse First Boston Corporation and
McDonald & Company Securities, Inc.
*4.6 First Supplemental Indenture, dated as of August 14, 1997, between the Company
and Norwest Bank, Minnesota, National Association, as Trustee, relating to the
11 1/4% Senior Notes due 2001.
4.7 Second Supplemental Indenture, dated as of September 15, 1997, between the
Company and Norwest Bank, Minnesota, National Association, as Trustee, relating
to the 11 1/4% Senior Notes due 2001.
*5.1 Opinion of Jones, Day, Reavis & Pogue as to the validity of the securities being
offered.
10.1 Employment Agreement entered into as of April 1, 1996 by and among Cole National
Corporation, the Company, Cole Gift Centers, Inc., Cole Vision Corporation,
Things Remembered, Inc. and Jeffrey A. Cole, incorporated by reference to Exhibit
10.1 to Cole National Corporation's Annual Report on Form 10-K for the period
ended February 3, 1996 (File No. 1-12814).
10.2 Employment Agreement entered into as of April 1, 1996 by and among Cole National
Corporation, the Company, Cole Gift Centers, Inc., Cole Vision Corporation,
Things Remembered, Inc. and Brian B. Smith, incorporated by reference to Exhibit
10.2 to Cole National Corporation's Annual Report on Form 10-K for the period
ended February 3, 1996 (File No. 1-12814).
10.3 Agreement dated March 27, 1993 between Cole National Corporation and Joseph
Gaglioti regarding termination of employment, incorporated by reference to
Exhibit 10.8 to the Company's Registration Statement on Form S-1 (Registration
No. 33-66342).
10.4 Agreement dated April 9, 1993 between Cole National Corporation and Wayne L.
Mosley regarding termination of employment, incorporated by reference to Exhibit
10.9 to the Company's Registration Statement on Form S-1 (Registration No.
33-66342).
</TABLE>
<PAGE> 11
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10.5 1992 Management Stock Option Plan, including forms of Nonqualified Stock Option
Agreement (Time Vesting) and Nonqualified Stock Option Agreement (Performance
Option), as amended, and forms of promissory notes and pledge agreements,
incorporated by reference to Exhibit 10.11 to the Company's Registration
Statement on Form S-1 (Registration No. 33-66342).
10.6 Cole National Corporation 1993 Management Stock Option Plan, including forms of
Nonqualified Stock Option Agreement (1993 Time Vesting) and form of secured
promissory notes and stock pledge agreement, incorporated by reference to Exhibit
10.29 to the Company's Registration Statement on Form S-1 (Registration No.
33-66342).
10.7 Form of Option Agreement for Directors of the Company, incorporated by reference
to Exhibit 10.41 to Cole National Corporation's Registration Statement on Form
S-1 (Registration No. 33-74228).
10.8 Nonqualified Stock Option Plan for Nonemployee Directors, incorporated by
reference to Exhibit 10.45 to Cole National Corporation's Registration Statement
on Form S-1 (Registration No. 33-74228).
10.9 Form of Nonqualified Stock Option Agreement for Nonemployee Directors,
incorporated by reference to Exhibit 10.9 to Cole National Corporation's Annual
Report on Form 10-K for the period ended February 3, 1996 (File No. 1-12814).
10.10 Cole National Corporation 1996 Management Stock Option Plan, including forms of
Nonqualified Stock Option Agreement (1996 Time Vesting), incorporated by
reference to Exhibit 10.10 to Cole National Corporation's Annual Report on Form
10-K for the period ended February 3, 1996 (File No. 1-12814).
10.11 Management Bonus Programs, incorporated by reference to Exhibit 10.14 to the
Company's Registration Statement on Form S-1 (Registration No. 33-66342).
10.12 Management Bonus Plan, incorporated by reference to Exhibit 10.30 to the
Company's Registration Statement on Form S-1 (Registration No. 33-89996).
10.13 Executive Life Insurance Plan of Cole National Corporation, incorporated by
reference to Exhibit 10.12 to the Company's Registration Statement on Form S-1
(Registration No. 33-66342).
10.14 Medical Expense Reimbursement Plan of Cole National Corporation effective as of
February 1, 1992, incorporated by reference to Exhibit 10.13 to the Company's
Registration Statement on Form S-1 (Registration No. 33-66342).
10.15 Supplemental Retirement Benefit Plan of Cole National Corporation, incorporated
by reference to Exhibit 10.38 to Cole National Corporation's Registration
Statement on Form S-1 (Registration No. 33-74228).
10.16 Supplemental Pension Plan of Cole National Corporation, incorporated by reference
to Exhibit 10.48 to Cole National Corporation's Registration Statement on Form
S-1 (Registration No. 33-74228).
10.17 Lease Agreement (Knoxville) dated as of November 28, 1979 by and between Tommy
Hensley, as agent for the real property of Mrs. Don Siegel and Cole Vision
Corporation, as amended and supplemented, incorporated by reference to Exhibit
10.15 to the Company's Registration Statement on Form S-1 (Registration No.
33-66342).
10.18 Lease Agreement (Memphis) dated as of October 2, 1991 by and between Shelby
Distribution Park and Cole Vision Corporation, incorporated by reference to
Exhibit 10.16 to the Company's Registration Statement on Form S-1 (Registration
No. 33-66342).
10.19 Lease Agreement (Richmond) dated as of April 23, 1982 by and between Daniel,
Daniel & Daniel and Cole Vision Corporation, as amended and supplemented,
incorporated by reference to Exhibit 10.17 to the Company's Registration
Statement on Form S-1 (Registration No. 33-66342).
</TABLE>
<PAGE> 12
<TABLE>
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EXHIBITS DESCRIPTION
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10.20 Lease Agreement (Salt Lake) dated as of November 1, 1996 by and between Gibbons
Realty and Cole Vision Corporation, incorporated by reference to Exhibit 10.01 to
Cole National Corporation's Report on Form 10-Q for the period ended November 2,
1996 (File No. 1-12814).
10.21 Form of Lease Agreement Finite 19518 dated as of December 29, 1988 between Sears,
Roebuck and Co. and Cole Vision Corporation, incorporated by reference to Exhibit
10.23 to the Company's Registration Statement on Form S-1 (Registration No.
33-66342).
10.22 Lease Agreement (Knoxville) dated as of April 11, 1995 by and between Richard T.
Fox and Cole Vision Corporation, incorporated by reference to Exhibit 10.29 to
Cole National Corporation's Annual Report on Form 10-K for the period ended
February 3, 1996 (File No. 1-12814).
10.23 Form of Indemnification Agreement for Directors of Cole National Corporation,
incorporated by reference to Exhibit 10.19 to the Company's Registration
Statement on Form S-1 (Registration No. 33-66342).
10.24 Form of Indemnification Agreement for Officers of Cole National Corporation,
incorporated by reference to Exhibit 10.20 to the Company's Registration
Statement on Form S-1 (Registration No. 33-66342).
10.25 Master License Agreement dated as of October 2, 1986, between Montgomery Ward &
Co., Incorporated and Cole Vision Corporation, as amended, incorporated by
reference to Exhibit 10.21 to the Company's Registration Statement on Form S-1
(Registration No. 33-66342).
10.26 Master License Agreement dated as of June 12, 1986, between Montgomery Ward &
Co., Incorporated and Bay Cities Optical Company, as amended, incorporated by
reference to Exhibit 10.22 to the Company's Registration Statement on Form S-1
(Registration No. 33-66342).
10.27 Form of License Agreement (Optical), incorporated by reference to Exhibit 10.24
to the Company's Registration Statement on Form S-1 (Registration No. 33-66342).
10.28 Form of License/Lease Agreement (Optical), incorporated by reference to Exhibit
10.25 to the Company's Registration Statement on Form S-1 (Registration No.
33-66342).
10.29 License Agreement (Gift Centers and Key Departments) dated as of March 16, 1995,
between Sears, Roebuck and Co. and Cole Gift Centers, Inc., as amended,
incorporated by reference to Exhibit 10.49 to Cole National Corporation's Annual
Report on Form 10-K for the year ended February 1, 1997 (File No. 1-12814).
10.30 Agreement for the Allocation of Federal Income Tax Liability and Benefits among
Members of the Parent Group dated August 23, 1985, as amended, incorporated by
reference to Exhibit 10.26 to the Company's Registration Statement on Form S-1
(Registration No. 33-66342).
10.31 Assignment and Assumption Agreement dated as of September 30, 1993 between Cole
National Corporation and the Company, incorporated by reference to Exhibit 10.24
to Cole National Corporation's Annual Report on Form 10-K for the period ended
February 3, 1996 (File No. 1-12814).
10.32 Credit Agreement, dated as of November 15, 1996, among Cole Vision Corporation,
Things Remembered, Inc., Cole Gift Centers, Inc., Pearle, Inc. and Pearle Service
Corporation and Canadian Imperial Bank of Commerce, incorporated by reference to
Exhibit 99.1 of Cole National Corporation's Current Report on Form 8-K, filed
with the Commission on December 2, 1996 (File No. 1-12814).
*10.33 First Amendment to Credit Agreement, dated as of January 13, 1997, among Cole
Vision Corporation, Things Remembered, Inc., Cole Gift Centers, Inc., Pearle,
Inc. and Pearle Service Corporation and Canadian Imperial Bank of Commerce.
</TABLE>
<PAGE> 13
<TABLE>
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EXHIBITS DESCRIPTION
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*10.34 Second Amendment to Credit Agreement, dated as of August 8, 1997, among Cole
Vision Corporation, Things Remembered, Inc., Cole Gift Centers, Inc., Pearle,
Inc. and Pearle Service Corporation and Canadian Imperial Bank of Commerce.
10.35 CNG Guarantee and Cash Collateral Agreement, dated as of November 15, 1996, by
the Company and Cole National Corporation, incorporated by reference to Exhibit
99.3 of Cole National Corporation's Current Report on Form 8-K, filed with the
Commission on December 2, 1996 (File No. 1-12814).
10.36 Guarantee and Collateral Agreement, dated as of November 15, 1996, by Cole Vision
Corporation, Things Remembered, Inc., Cole Gift Centers, Inc., Pearle, Inc. and
Pearle Service Corporation and Canadian Imperial Bank of Commerce, incorporated
by reference to Exhibit 99.4 of Cole National Corporation's Current Report on
Form 8-K, filed with the Commission on December 2, 1996 (File No. 1-12814).
*10.37 Agreement, dated August 4, 1997, between Cole National Corporation and Leslie D.
Dunn regarding termination of employment.
10.38 Form of Cole National Corporation 401(k) Savings Plan, incorporated by reference
to Exhibit 4.1 of Cole National Corporation's Registration Statement on Form S-8,
filed with the Commission on November 20, 1997 (Reg. No. 333-40609).
*12.1 Statements regarding computation of ratios.
*21.1 List of Subsidiaries.
*23.1 Consent of Jones, Day, Reavis & Pogue (contained in Exhibit 5.1).
*23.2 Consent of Arthur Andersen LLP.
*23.3 Consent of KPMG Peat Marwick LLP.
*24.1 Powers of Attorney.
*25.1 Statement of Eligibility of Trustee, Norwest Bank Minnesota, National
Association, on Form T-1.
*99.1 Form of Letter of Transmittal.
*99.2 Form of Notice of Guaranteed Delivery.
</TABLE>
* Previously filed.
<PAGE> 1
Exhibit 4.7
================================================================================
COLE NATIONAL GROUP, INC.
And
NORWEST BANK MINNESOTA, NATIONAL ASSOCIATION,
as Trustee
----------------------------------
SECOND SUPPLEMENTAL INDENTURE
dated as of
September 15, 1997
----------------------------------
================================================================================
<PAGE> 2
SECOND SUPPLEMENTAL INDENTURE
THIS SECOND SUPPLEMENTAL INDENTURE, dated as of September 15, 1997
("THIS SECOND SUPPLEMENTAL INDENTURE"), is made by and between COLE NATIONAL
GROUP, INC., a corporation duly formed and validly existing under the laws of
the State of Delaware (the "ISSUER"), and NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, as trustee (the "TRUSTEE").
RECITALS:
A. The Issuer and the Trustee have entered into an Indenture, dated as
of September 30, 1993, as amended by a First Supplemental Indenture, dated as of
August 14, 1997 (as so amended, the "INDENTURE").
B. Pursuant to the Indenture, the Issuer issued and the Trustee
authenticated and delivered $190,000,000 aggregate principal amount of the
Issuer's 11 1/4% Senior Notes due 2001 (the "SECURITIES").
C. Section 9.02 of the Indenture provides, among other things, that
with the written consent of the Securityholders of not less than a majority in
aggregate principal amount of the Securities then outstanding (the "REQUISITE
CONSENTS"), the Issuer, when authorized by a resolution of its Board of
Directors, and the Trustee, may from time to time amend or supplement the
Indenture, subject to certain exceptions specified in Section 9.02 of the
Indenture.
D. The Issuer has established August 8, 1997 as the record date for the
solicitation of certain consents from the Securityholders pursuant to a Consent
Solicitation and Tender Offer Statement dated August 15, 1997 (the "STATEMENT"),
a true and correct copy of which has been made available to the Trustee.
E. Pursuant to the Statement, the Issuer has obtained and caused to be
furnished to the Trustee the Requisite Consents to the amendments to the
Indenture described in the Statement, whereby (i) certain covenants contained in
the Indenture with respect to limitations on payments, limitations on
indebtedness and preferred stock, limitations on dividend restrictions affecting
subsidiaries, limitations on sales of assets and subsidiary stock, limitations
on transactions with affiliates, limitations on liens and requirements for a
Change of Control Offer will be eliminated and (ii) compliance certificate
requirements will be modified to delete references to the Indenture provisions
being deleted.
F. This Second Supplemental Indenture has been duly authorized by all
necessary corporate action on the part of the Issuer.
G. The Issuer has delivered, or caused to be delivered, to the Trustee,
the Requisite Consents obtained pursuant to the Statement, as well as an
Officers' Certificate and an Opinion of Counsel stating that all conditions
precedent and covenants, if any, provided for in the Indenture relating to this
Second Supplemental Indenture have been satisfied.
NOW THEREFORE, each party agrees for the benefit of the other party and
for the equal and ratable benefit of all Securityholders, as follows:
AGREEMENT:
SECTION 1. DEFINITIONS. Capitalized terms used in this Second
Supplemental Indenture and not otherwise defined herein have the meanings given
them in the Indenture.
SECTION 2. DELETION OF CERTAIN SECTIONS OF THE INDENTURE. The following
sections containing restrictive covenants are deleted from the Indenture in
their entirety:
Section 4.07. Limitations on Restricted Payments.
Section 4.08. Limitations on Dividend Restrictions Affecting
Subsidiaries.
2
<PAGE> 3
Section 4.09. Limitations on Indebtedness and Preferred Stock.
Section 4.10. Limitations on Sale of Assets and Subsidiary Stock.
Section 4.11. Limitations on Transactions with Affiliates.
Section 4.12. Limitations on Liens.
Section 4.14. Change of Control.
SECTION 3. DELETION OF REFERENCES TO DELETED SECTIONS. Section 4.04(b)
of the Indenture is modified by deleting all references therein to Sections
4.07, 4.08, 4.09, 4.10. 4.11, 4.12 and 4.14 of the Indenture.
SECTION 4. MISCELLANEOUS.
4.1. EFFECT AND OPERATION OF SECOND SUPPLEMENTAL INDENTURE. This Second
Supplemental Indenture shall be effective upon the execution and delivery hereof
by the Issuer and the Trustee, but the amendments to the Indenture provided for
in Sections 2 and 3 hereof will not become operative until Securities are
accepted for purchase by the Issuer pursuant to the Offer (as defined in the
Statement). Confirmation that such amendments have become operative shall be
evidenced by the execution by the Issuer and the Trustee of the Confirmation
which is appended hereto. When this Second Supplemental Indenture is effective
and such amendments become operative, the Indenture shall be supplemented and
amended in accordance herewith, and this Second Supplemental Indenture shall
form a part of the Indenture for all purposes, and every Security heretofore or
hereafter authenticated and delivered under the Indenture shall be bound
thereby. Except as supplemented and amended hereby, all provisions of the
Indenture shall remain in full force and effect.
4.2. INDENTURE AND SUPPLEMENTAL INDENTURES CONSTRUED TOGETHER. This
Second Supplemental Indenture is an indenture supplemental to and in
implementation of the Indenture, and the Indenture and this Second Supplemental
Indenture shall henceforth be read and construed together.
4.3. CONFIRMATION AND PRESERVATION OF THE INDENTURE. The Indenture as
supplemented by this Second Supplemental Indenture is in all respects confirmed
and preserved.
4.4. CONFLICT WITH TRUST INDENTURE ACT. If any provision of this Second
Supplemental Indenture limits, qualifies or conflicts with any provision of the
Trust Indenture Act of 1939, as amended (the "ACT"), that is required under such
Act to be part of and govern any provision of this Second Supplemental
Indenture, the provision of such Act shall control. If any provision of this
Second Supplemental Indenture modifies or excludes any provision of the Act that
may be so modified or excluded, the provisions of the Act shall be deemed to
apply to the Indenture as so modified or to be excluded by this Second
Supplemental Indenture, as the case may be.
4.5. SEPARABILITY CLAUSE. In case any provision of this Second
Supplemental Indenture shall be invalid, illegal or unenforceable, the validity,
legality and enforceability of the remaining provisions shall not in any way be
affected or impaired thereby.
4.6. EFFECT OF HEADINGS. The Section headings herein are for
convenience only and shall not affect the construction hereof.
4.7. BENEFITS OF SECOND SUPPLEMENTAL INDENTURE. Nothing in the
Indenture, this Second Supplemental Indenture or the Securities, express or
implied, shall give to any Person, other than the parties hereto and thereto and
their successors hereunder and thereunder, and the Securityholders, any benefit
of any legal or equitable right, remedy or claim under the Indenture as
supplemented and amended hereby or the Securities.
4.8. SUCCESSORS AND ASSIGNS. All covenants and agreements in this
Second Supplemental Indenture by the Issuer shall bind its successors and
assigns, whether so expressed or not.
4.9. NEW YORK LAW TO GOVERN. THIS SECOND SUPPLEMENTAL INDENTURE SHALL
BE DEEMED TO BE A CONTRACT UNDER THE LAWS OF THE STATE OF NEW YORK AND FOR ALL
PURPOSES SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH SUCH LAWS OF SAID
STATE, EXCEPT AS MAY OTHERWISE BE REQUIRED BY MANDATORY PROVISIONS OF LAW.
2
<PAGE> 4
4.10. COUNTERPARTS. This Second Supplemental Indenture may be executed
in counterparts, each of which shall be an original, but all such counterparts
shall together constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Second
Supplemental Indenture to be duly executed as of the date and the year first
above written.
COLE NATIONAL GROUP, INC.
BY: /s/ JOSEPH GAGLIOTI
--------------------------------
NAME: JOSEPH GAGLIOTI
TITLE: TREASURER
NORWEST BANK MINNESOTA,
NATIONAL ASSOCIATION,
AS TRUSTEE
BY: /s/ JANE Y. SCHWEIGER
--------------------------------
NAME: JANE Y. SCHWEIGER
TITLE: CORPORATE TRUST OFFICER
3
<PAGE> 5
CONFIRMATION
The undersigned hereby confirm that the amendments provided for in the
foregoing Second Supplemental Indenture have become operative, as contemplated
by Section 4.1 thereof, on September 15, 1997.
COLE NATIONAL GROUP, INC.
BY: /s/ JOSEPH GAGLIOTI
--------------------------------
NAME: JOSEPH GAGLIOTI
TITLE: TREASURER
NORWEST BANK MINNESOTA,
NATIONAL ASSOCIATION,
AS TRUSTEE
BY: /s/ JANE Y. SCHWEIGER
--------------------------------
NAME: JANE Y. SCHWEIGER
TITLE: CORPORATE TRUST OFFICER
