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EXHIBIT
10.10
PUT AGREEMENT
Dated as of December 2,
2004
By and Among
MOULIN INTERNATIONAL HOLDINGS
LIMITED
and
CERTAIN SUBSIDIARIES OF
MOULIN INTERNATIONAL HOLDINGS LIMITED
and
GOLDEN GATE PRIVATE EQUITY,
INC.
PUT
AGREEMENT
This PUT AGREEMENT (this
“Agreement”), dated as of December 2, 2004 is made by
and among MOULIN INTERNATIONAL HOLDINGS LIMITED, a Bermuda company
(“Moulin”), MOULIN OPTICAL MANUFACTORY LIMITED, a Hong
Kong company, ALLIED INDUSTRIAL LIMITED, a Hong Kong company,
LEADKEEN INDUSTRIAL LIMITED, a Hong Kong company, MOULIN EUROPEAN
HOLDINGS LIMITED, a British Virgin Islands company, AMPLE FAITH
INVESTMENTS LIMITED, a British Virgin Islands company and METZLER
INTERNATIONAL (USA) INC., a Delaware corporation (collectively, the
“Moulin Subsidiaries” and, together with Moulin, the
“Moulin Entities”) and GOLDEN GATE PRIVATE EQUITY, INC.
(together with its Affiliates who become holders of Equity
Securities, the “GGC Entities” and together with the
Moulin Entities, the “Parties”).
W I T
N E S S E T H
:
WHEREAS, ECCA Holdings
Corporation, a Delaware corporation (the “Company”), a
subsidiary of the Company and Eye Care Centers of America, Inc., a
Texas corporation (“Target”), have entered into a
Merger Agreement (the “Merger Agreement”), dated as of
the date hereof, pursuant to which the Company has agreed to
acquire by means of a merger all of the issued and outstanding
capital stock and other securities of Target;
WHEREAS, the Parties are,
concurrently with the execution and delivery of this Agreement,
entering into that certain Stockholders Agreement (the
“Stockholders Agreement”), it being agreed that any
capitalized term used but not defined herein shall have the meaning
ascribed to such term in the Stockholders Agreement;
WHEREAS, Moulin has
determined that the transactions contemplated by the Merger
Agreement (the “Merger”) and their direct or indirect
ownership in Target will be beneficial to Moulin and each of it
Subsidiaries;
WHEREAS, Moulin would be
unable to consummate the Merger without the investment in the
Company to be made by the GGC Entities, and the rights contemplated
by this Agreement are a condition to the investment in the Company
to be made by the GGC Entities; and
WHEREAS, the Parties each
desire to enter into this Agreement to, inter alia ,
provide the GGC Entities certain liquidity rights relating to the
Equity Securities.
NOW, THEREFORE, in
consideration of the mutual covenants set forth herein and other
good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the Parties, intending to be legally
bound, hereby agree as follows:
1. REPRESENTATIONS AND
WARRANTIES OF MOULIN .
(a) Organization,
Qualification, and Corporate Power . (i) Each of the Moulin
Entities is a corporation or company duly organized and validly
existing under the laws of the jurisdiction of its incorporation.
(ii) Each of the Moulin Entities is duly authorized to conduct
business and is in good standing under the laws of each
jurisdiction where such qualification is required. (iii) Each of
the Moulin Entities has full corporate power and authority and all
licenses, permits, and authorizations necessary to carry on the
businesses in which it is engaged and to own and use the properties
owned and used by them. (iv) None of the Moulin Entities is in
default under or in violation of any provision of its charter or
bylaws (or other applicable governing documents).
(b) Authorization .
The execution, delivery and performance of this Agreement, the
Stockholders Agreement, the Supply Agreement and the Advisory
Agreements and all other agreements contemplated hereby or thereby
to which any Moulin Entity is a party (each, a “Transaction
Agreement” and collectively, the “Transaction
Agreements”) have been duly authorized by all necessary
corporate action on the part of such Moulin Entity. Each
Transaction Agreement constitutes a valid and binding obligation of
the Company, enforceable in accordance with its terms, except to
the extent that its enforceability may be subject to applicable
bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting the enforcement of creditors’ rights
generally.
(c) Non-Contravention
. Neither the execution and the delivery of the Transaction
Agreements, nor the consummation of the transactions contemplated
thereby will (i) violate any constitution, statute, regulation,
rule, injunction, judgment, order, decree, ruling, charge, or other
restriction of any government, governmental agency, or court to
which any of the Moulin Entities is subject or any provision of the
charter, bylaws or other constitutive or organizational documents
of any of the Moulin Entities or (ii) conflict with, result in a
breach of, constitute a default under, result in the acceleration
of, create in any party the right to accelerate, terminate, modify,
or cancel, or require any notice under any agreement, contract,
credit facility, lease, license, instrument, or other arrangement
to which any of the Moulin Entities is a party or by which it is
bound or to which any of its assets is subject (or result in the
imposition of any lien upon any of its assets), including without
limitation, that certain Agreement, dated as of November 12, 2004,
by and among the Moulin Entities, Standard Chartered Bank (Hong
Kong) Limited, as Co-ordinator and Agent and the Original Lenders
(as defined therein) (the “Credit Agreement”), which
violation, conflict, breach or default would have a material
adverse effect on (i) the ability of the Company to perform its
obligations under the Transaction Agreements, (ii) the business,
operations, property or condition (financial or otherwise) of the
Moulin Entities, taken as a whole or (iii) the ability of any of
the Moulin Entities to perform its obligations under the
Transaction Agreements (a “Material Adverse Effect”).
None of the Moulin Entities needs to give any notice to, make any
filing with, or obtain any authorization, consent, or approval of
any government or governmental agency in connection with the
consummation the transactions contemplated by any of the
Transaction Agreements.
(d) Financial Statements;
Projections . Each of the consolidated financial statements
(including, in each case, any notes thereto) of Moulin and its
consolidated subsidiaries included in the forms, reports,
statements, schedules and other documents (the
“Reports”) filed since
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December 31, 2003 (the “Financial
Statements”) with the relevant regulatory authorities,
including the Hong Kong Stock Exchange (the “Securities
Authorities”) has been prepared in accordance with the rules
and regulations of the Securities Authorities and in accordance
with Hong Kong generally accepted accounting principles as in
effect on the date of filing such Reports except to the extent
expressly disclosed in such financial statements. The Financial
Statements give a true and fair view and represent the financial
condition of Moulin and its consolidated subsidiaries as of the
dates thereof and the consolidated results of their operations and
cash flows during the relevant periods subject, in the case of
unaudited statements, to normal year-end adjustments, none of
which, alone or in the aggregate, could reasonably be expected to
have a Material Adverse Effect. Attached hereto as Schedule 1(d)
are the pro forma financial projections of Moulin and its
subsidiaries, on a consolidated basis, after giving effect to the
occurrence of the Merger, and which were provided to the lenders
under the Credit Agreement (the “Projected
Statements”). The Projected Statements represented
Moulin’s good faith estimate of future financial performance
at such time and were based on assumptions believed by Moulin to be
fair and reasonable in light of market conditions at the time made;
provided that no assurance is given by Moulin herein that the
Projected Statements will actually be realized in the periods set
forth therein.
2. PUT ARRANGEMENTS
.
(a) At any time following the
occurrence of a Put Right Event (as defined below), the GGC
Entities shall have the right to require the Moulin Entities to use
reasonable best efforts to purchase all of the Equity Securities
held by the GGC Entities (the “Put Securities”) at the
Put Price (as defined below) (the “Put”) by delivering
a written notice to Moulin (the “Put Notice”). The
right to exercise the Put shall inure to the benefit of any
Affiliate of the GGC Entities to whom Equity Securities of the GGC
Entities are transferred pursuant to Section 2.1(a)(i) of the
Stockholders Agreement (“Permitted Affiliate
Transferees”). The Moulin Entities’ “reasonable
best efforts” shall include, without limitation, reasonable
best efforts to (i) raise sufficient debt and equity financing
proceeds to permit the Moulin Entities to pay the full aggregate
Put Price and (ii) obtain approvals, waivers and consents or
otherwise remove any restrictions imposed under contractual
obligations or applicable law or regulations that have the effect
of limiting or prohibiting any Moulin Entity from purchasing all or
any portion of the Put Securities at the Put Price.
(b) Upon the delivery of the
Put Notice, and subject to the provisions hereof, the Moulin
Entities shall, during the 180-day period described below, use
reasonable best efforts to purchase and the GGC Entities shall
sell, against delivery of original stock certificates and stock
powers duly endorsed in favor of Moulin (or its designee)
evidencing such Put Securities, all of the Put Securities then held
by the GGC Entities (which have not been or are not being
simultaneously repurchased or redeemed by the Company), free and
clear of Liens (other than restrictions on transfer imposed by
securities laws), at the Put Price at a mutually agreeable place
and date no later than the 180 th day following (i) if a
Valuation Notice has been delivered pursuant to Section 2.2 of the
Stockholders Agreement, the date of such Valuation Notice and (ii)
if no Valuation Notice has been delivered pursuant to Section 2.2
of the Stockholders Agreement, the delivery of the Put Notice (the
“Put Closing”). Such 180-day period is referred to
herein as the “Put Closing Period”.
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(c) At the Put Closing, the
GGC Entities shall deliver to the Moulin Entities (or their
designees) certificates representing the Put Securities, and the
Moulin Entities shall deliver (or cause their designees to deliver)
to the GGC Entities the Put Price by wire transfer of immediately
available funds to the to an account or accounts designated by the
GGC Entities.
(d) A “Put Right
Event” shall mean the Fourth Anniversary (as defined in the
Stockholders Agreement).
(e) The “Put
Price” of the Put Securities shall mean an amount in cash
equal to the original issuance price of such Equity Securities plus
interest at 20% per annum from the Closing Date (as defined in the
Merger Agreement), compounding on an annual basis through the date
of the Put Closing, less the actual aggregate amount, if any, of
all Distributions (as defined in the Company’s certificate of
incorporation) received by the GGC Entities from the Company prior
to the Put Closing in respect of such Put Securities; provided that
if the Moulin Entities fail to purchase the Equity Securities
contemplated to be purchased by them hereunder, the amount of the
Put Price with respect to such Put Securities shall continue to
increase at a rate of 20% per annum, compounding on an annual
basis, through the date on which such Put Securities are purchased
or on which
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