Exhibit 4.6
SIGHT RESOURCE CORPORATION
REGISTRATION RIGHTS AGREEMENT
This REGISTRATION RIGHTS AGREEMENT (this "Agreement") dated as of the
20th day of July, 2001 (the "Effective Date"), by and among Sight Resource
Corporation, a Delaware corporation (the "Company"), Carlyle Venture Partners,
L.P. ("Carlyle"), C/S Venture Investors, L.P. ("C/S"), Carlyle U.S. Venture
Partners, L.P.("Carlyle U.S.") and Carlyle Venture Coinvestment, L.L.C.
("Carlyle L.L.C." and together with Carlyle, C/S and Carlyle U.S., the "Carlyle
Group").
RECITALS
WHEREAS, the Company entered into a certain Letter Agreement with the
Carlyle Group dated May 21, 2001 (the "Letter Agreement"), with respect to a
waiver of certain rights previously granted to the Carlyle Group in connection
with a proposed transaction involving an equity financing and a merger among the
Company, xxxxxxx.xxx, inc. and certain other individuals;
WHEREAS, pursuant to the Letter Agreement, the Company granted Warrants
dated July 20, 2001 to the Carlyle Group (the "Warrant") to purchase an
aggregate of 1,000,000 shares of the Company's Common Stock (the "Warrant
Shares"), subject to the terms and conditions specified therein;
WHEREAS, pursuant to the Letter Agreement, the Company will issue an
aggregate of 1,221,999 shares of the Company's Common Stock (the "Dividend
Shares") to the Carlyle Group, subject to the terms and conditions specified
therein;
WHEREAS, pursuant to the Letter Agreement, the Company has agreed to
provide the registration rights set forth in this Agreement for the benefit of
the Carlyle Group and their direct and indirect transferees upon the terms and
conditions set forth herein; and
NOW, THEREFORE, in consideration of the premises and the mutual
covenants contained in this Agreement, the parties agree as follows:
ARTICLE 1. DEFINITIONS
Capitalized terms used herein without definition shall have the meanings
assigned to such terms in the Stock Purchase Agreement dated as of April 1, 1999
among the Company and the Carlyle Group as amended by the Letter Agreement. For
the purposes of this Agreement:
"Affiliate" has the meaning ascribed to that term in Rule 12b-2 under
the Exchange Act (as defined below), or any successor rule.
"Common Stock" means the common stock, par value $.01 per share, of
the Company.
1
"Commission" means the U.S. Securities and Exchange Commission or any
other governmental authority from time to time administering the Securities Act
(as defined below).
"DTC" means the Depository Trust Company.
"Effectiveness Period" means the period commencing on July 20, 2001
and ending on January 20, 2009.
"Exchange Act" means the Securities Exchange Act of 1934, as amended,
or any successor federal statute and the rules and the regulations of the
Commission promulgated thereunder, all as the same shall be in effect from time
to time.
"Holder" means any Person owning or having the right to acquire
Registrable Securities, including an Affiliate or any successor, assignee or
transferee of any Carlyle Group or a holder that has received Registrable
Securities in accordance with Article 13 hereof.
"NASD" means the National Association of Securities Dealers, Inc.
"Person" means any natural person, firm, partnership, association,
corporation, company, joint venture, unincorporated association, trust, business
trust, government or department or agency of a government, limited liability
company or other entity.
"Prospectus" means the prospectus included in any Registration
Statement (including without limitation, a prospectus that discloses information
previously omitted from a prospectus filed as part of an effective registration
statement in reliance upon Rule 430A), as amended or supplemented by any
prospectus supplement, with respect to the terms of the offering or any portion
of the Registrable Securities covered by such Registration Statement and all
other amendments and supplements to the prospectus, including post-effective
amendments, and all material incorporated by reference or deemed to be
incorporated by reference in such prospectus.
"Register", "registered" and "registration" shall refer to a
registration effected by preparing and filing a registration statement in
compliance with the Securities Act and applicable rules and regulations
thereunder, and the declaration or ordering of the effectiveness of such
registration statement, or, as the context may require, under the Exchange Act
or applicable state securities laws.
"Registrable Securities" means (a) the shares of Common Stock received
by the Carlyle Group as Dividend Shares pursuant to the Letter Agreement, (b)
Warrant Shares issued to any Holder upon exercise of the Warrant, and (c) any
capital stock or other securities of the Company issued or issuable with respect
to the Common Stock: (i) upon any conversion or exchange thereof, (ii) by way of
stock dividend or other distribution, stock split or reverse stock split, or
(iii) in connection with a combination of shares, recapitalization, sale,
merger, consolidation, exchange offer or other reorganization. As to any
particular Registrable Securities, such securities shall cease to be Registrable
Securities when (A) a Registration Statement with respect to the sale of such
securities shall have become effective under the Securities Act and such
securities shall have been disposed of in accordance with such Registration
Statement, (B) such securities become eligible to be distributed to the public
in reliance upon Rule 144 (or any successor provision) under the Securities Act,
provided that at the time such securities are proposed to be disposed of, they
may be sold under Rule 144 without
2
any limitation on the amount of such securities which may be sold or (C) they
shall have ceased to be outstanding.
"Registration Expenses" shall mean all expenses incurred by the
Company in compliance with Articles 2, 3 and 4 hereof, including, without
limitation, all registration and filing fees, printing expenses, fees and
disbursements of counsel for the Company, fees and expenses of one counsel for
all the Holders in an amount not to exceed $15,000 and blue sky fees (but
excluding the compensation of regular employees of the Company, which shall be
paid in any event by the Company); provided, however, that the Company shall
have no obligation to pay or otherwise bear any portion of the underwriter's
commissions or discounts attributable to resale of the Registrable Securities.
"Registration Statement" means any registration statement of the
Company that covers any of the Registrable Securities pursuant to the provisions
of this Agreement, and all amendments and supplements to any such registration
statement, including post-effective amendments, in each case including the
Prospectus, all exhibits and all material incorporated by reference or deemed to
be incorporated by reference in such registration statement.
"Rule 144" means Rule 144 (or any successor provision) under the
Securities Act.
"Securities Act" means the Securities Act of 1933, as amended, or any
successor federal statute, and the rules and regulations of the Commission
promulgated thereunder, all as the same shall be in effect from time to time.
"Special Registration" means the registration of shares of equity
securities and/or options or other rights in respect thereof to be offered
solely to directors, members of management, employees, consultants or sales
agents, distributors or similar representatives of the Company or its direct or
indirect Subsidiaries, solely on Form S-8 or any successor form, a registration
on Form S-4 with respect to any merger, consolidation or acquisition, or a
registration on another form not available for registering Registrable
Securities for sale to the public.
"Underwritten Registration" or "Underwritten Offering" means a
registration in which securities of the Company (including Registrable
Securities) are sold to an underwriter for reoffering to the public.
ARTICLE 2. SHELF REGISTRATION
(a) Right to Shelf Registration. Commencing one (1) year from
the date hereof, and within 45 days after receipt of written notice from the
Carlyle Group, the Company shall prepare and file with the SEC a registration
statement for an offering to be made on a delayed or continuous basis pursuant
to Rule 415 of the Securities Act (a "Shelf Registration") registering the
resale from time to time by the Carlyle Group and the Holders of all of the
Registrable Securities; provided, however, that in no event shall the Company be
obligated to effect a Shelf Registration pursuant to this Section 2(a) on more
than one occasion in any 12-month period. The Registration Statement for any
Shelf Registration shall be on Form S-3 or another appropriate form permitting
registration of such Registrable Securities for resale by each Holder in the
manner or manners designated by them, including an underwritten offering. The
Company shall use its best efforts to cause the Shelf Registration to become
effective under the Act as
3
promptly as is practicable and to keep the Shelf Registration continuously
effective under the Securities Act until the earlier of (i) the expiration of
the Effectiveness Period or (ii) the consummation of the disposition by the
Holders of all the Registrable Securities covered by such Registration
Statement. If the Shelf Registration ceases to be effective for any reason at
any time prior to the end of the Effectiveness Period (other than because all
Registrable Securities shall have been sold or shall have ceased to be
Registrable Securities), the Company shall use its best efforts to obtain the
prompt withdrawal of any order suspending the effectiveness thereof, and in any
event shall within thirty (30) days of such cessation of effectiveness amend the
Shelf Registration in a manner reasonable expected to obtain the withdrawal of
the order suspending the effectiveness thereof, or file an additional Shelf
Registration covering all of the Registrable Securities then outstanding (a
"Subsequent Shelf Registration"). If a Subsequent Shelf Registration is filed,
the Company shall use all reasonable efforts to cause the Subsequent Shelf
Registration to become effective as promptly as is practicable after such filing
and to keep such registration statement continuously effective until the end of
the Effectiveness Period.
ARTICLE 3. PIGGYBACK REGISTRATION
(a) Inclusion in Piggyback Registration. If the Company at any time,
proposes to register any of its securities under the Securities Act (other than
pursuant to a Special Registration), whether or not for sale for its own
account, (a "Company Registration"), it shall each such time, prior to such
filing, give prompt written notice to all Holders of Registrable Securities of
its intention to do so and, upon the written request of any Holder of
Registrable Securities given to the Company within twenty (20) days after the
Company has provided such notice (which request shall state the intended method
of disposition of such Registrable Securities), the Company shall use reasonable
efforts to cause all Registrable Securities that the Company has been requested
by the Holders thereof to register to be so registered under the Securities Act
to the extent necessary to permit their disposition in accordance with the
intended methods of distribution specified in the request of such Holder or
Holders and in accordance with Section 3(c). The notice provided by the Company
to Holders shall specify the minimum and maximum proposed offering price and the
name of the proposed underwriter in connection with the offering, the timing of
the proposed offering and other relevant information, as applicable.
(b) Terms of Underwriting. In connection with any offering under this
Article 3 involving an underwritten offering, the Company shall not be required
to include any Registrable Securities in such offering unless the Holder thereof
accepts the terms and enters into an underwriting agreement, if any, of the
underwriting as agreed upon between the Company and the underwriters selected by
it provided that such terms must be reasonably satisfactory in substance and
form to the Holder and consistent with this Agreement, and then only in such
quantity as will not, in the opinion of the managing underwriter, jeopardize the
success of the offering by the Company.
(c) Allocation. If any Company Registration involves an underwritten
offering and the managing underwriter of such offering shall advise the Company
that, in its view, the number of securities requested to be included in such
registration exceeds the largest number that can be sold in an orderly manner in
such offering within a price range acceptable to the Company, the Company shall
include Registrable Securities in such registration in the amount as
4
is determined in good faith by the managing underwriters in the case of a
underwritten public offering; provided, however, that such calculation shall not
treat Registrable Securities in any manner differently than any other
registrable securities of the Company, absent agreement to the contrary
If any Holder does not agree to the terms of any such underwriting,
such person shall be excluded therefrom by written notice from the Company or
the underwriter. Any Registrable Securities or other securities excluded or
withdrawn from such underwriting shall be withdrawn from such registration. If
shares are so withdrawn from the registration or if the number of shares of
Registrable Securities to be included in such registration was previously
reduced as a result of marketing factors, the Company shall then offer to all
persons who have retained the right to include securities in the registration
the right to include additional securities in the registration in an aggregate
amount equal to the number of shares so withdrawn, with such shares to be
allocated among the persons requesting additional inclusion in accordance with
Section 3(c).
For purposes of this Article 3, in any circumstance in which all of the
Registrable Securities requested to be included in a registration on behalf of
the Holders cannot be so included as a result of limitations of the aggregate
number of shares of Registrable Securities that may be so included, the number
of shares of Registrable Securities that may be so included shall be allocated
among the Holders requesting inclusion of shares such that the selling Holders
of the Registrable Securities shall have their shares included pro rata on the
basis of the aggregate number of shares of Registrable Securities that all
Holders had requested to be included in the registration; provided, however,
that such allocation shall not operate to reduce the aggregate number of
Registrable Securities to be included in such registration. If any Holder does
not request inclusion of the maximum number of shares of Registrable Securities
allocated to such person pursuant to the above-described procedure, the
remaining portion of such person's allocation shall be reallocated among those
requesting Holders whose allocations did not satisfy their requests pro rata on
the basis of the number of shares of Registrable Securities held by such Holders
that such Holders had requested to be included in the registration, and this
procedure shall be repeated until all of the shares of Registrable Securities
which may be included in the registration on behalf of the Holders have been so
allocated. Notwithstanding the foregoing provisions, the Company may withdraw
any Registration Statement referred to in this Article 3 without thereby
incurring any liability to the Holders (but the Company shall nevertheless pay
the Registration Expenses in connection therewith). If any Holder disapproves of
the terms of any such underwriting, it may elect to withdraw therefrom by
written notice to the Company and the underwriter. Any Registrable Securities
excluded or withdrawn from such underwriting shall be withdrawn from such
registration but the reallocation provisions of this Section 3(c) shall continue
to apply to such Registrable Securities.
ARTICLE 4. ALLOCATION OF EXPENSES
The Company will pay all Registration Expenses of all registrations under this
Agreement.
ARTICLE 5. OBLIGATIONS OF THE COMPANY
5
If and whenever the Company is required to use best efforts to effect the
registration under the Securities Act of any Registrable Securities pursuant to
Articles 2 and 3 of this Agreement, the Company shall:
(a) file with the Commission, as soon as practicable, a Registration
Statement with respect to such Registrable Securities, make all required filings
with the NASD and any other applicable exchange, and use best efforts to cause
such Registration Statement to become effective at the earliest possible date
and remain effective;
(b) prepare and file with the Commission such amendments and
supplements to the Registration Statement and the Prospectus used in connection
therewith and such other documents as may be necessary to keep the Registration
Statement effective until the earlier of (i) the expiration of the Effectiveness
Period or (ii) the consummation of the disposition by the Holders of all the
Registrable Securities covered by such Registration Statement and otherwise
comply with the provisions of the Securities Act with respect to the disposition
of all securities covered by such Registration Statement;
(c) furnish to each seller of such securities the number of conformed
copies of such Registration Statement and of each such amendment and supplement
thereto (in each case, including all exhibits and the numbers of copies of the
Prospectus included in such Registration Statement (including each preliminary
prospectus) in conformity with the requirements of the Securities Act, and such
other documents, as such seller may reasonably request in order to facilitate
the disposition of the Registrable Securities owned by such seller;
(d) use its reasonable efforts to register or qualify and cooperate
with the Holders of Registrable Securities, the underwriters and their
respective counsels in connection with the registration or qualification (or
exemption from such registration or qualification) of the securities covered by
such Registration Statement under such other securities or blue sky laws of such
jurisdictions as each seller shall request; provided, however, that the Company
shall not for any such purpose be required to qualify generally to do business
as a foreign corporation in any jurisdiction wherein it is not so qualified,
subject itself to taxation in any jurisdiction wherein it is not so subject, or
take any action which would subject it to general service of process in any
jurisdiction wherein it is not so subject;
(e) in connection with an underwritten public offering only, furnish to
each underwriter in a signed counterpart, addressed to the underwriters, of
(i) an opinion of counsel for the Company experienced in
securities law matters, dated the effective date of the Registration Statement,
and
(ii) a letter from the independent public accountants retained by
the Company, addressed to the underwriters stating that they are independent
public accountants within the meaning of the Securities Act and that, in the
opinion of such accountants, the financial statements of the Company included in
the registration statement or the Prospectus, or any amendment or supplement
thereof, comply as to form in all material respects with the applicable
accounting requirements of the Securities Act, and such letter shall
additionally cover such other financial matters (including information as to the
period ending no more than five
6
(5) business days prior to the date of such letter) with respect to such
registration as such underwriters reasonably may request;
(f) immediately notify each Holder of Registrable Securities and
each underwriter under such registration statement, at any time when a
Prospectus relating thereto is required to be delivered under the Securities
Act, of the happening of any event of which the Company has knowledge as a
result of which the Prospectus contained in such registration statement, as then
in effect, includes an untrue statement of a material fact or omits to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading in light of the circumstances then existing, and promptly
prepare and furnish to such Holder a reasonable number of copies of a Prospectus
supplemented or amended so that, as thereafter delivered to the purchasers of
such Registrable Securities, such Prospectus shall not include an untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not misleading in
light of the circumstances then existing;
(g) comply with all applicable rules and regulations under the
Securities Act and Exchange Act;
(h) promptly notify each Holder of Registrable Securities covered
by such Registration Statement, their counsel and the underwriters (i) when such
Registration Statement, or any post-effective amendment to such Registration
Statement, shall have become effective, or any amendment of or supplement to the
Prospectus used in connection therewith shall be filed, (ii) of any request by
the Commission to amend such Registration Statement or to amend or supplement
such Prospectus or for additional information, (iii) of the issuance by the
Commission of any stop order suspending the effectiveness of such Registration
Statement or of any order preventing or suspending the use of any preliminary
prospectus or the initiation or threatening of any proceedings for any of such
purposes, (iv) of the suspension of the qualification of such securities for
offering or sale in any jurisdiction, or of the institution of any proceedings
for any of such purposes and (v) if at any time when a Prospectus is to be
required by the Securities Act to be delivered in connection with the sale of
the Registrable Securities, the representations and warranties of the Company
contained in any agreement (including the underwriting agreement contemplated in
Section 6(b) below), to the knowledge of the Company, cease to be true and
correct in any material respect;
(i) cooperate with the Holders and the managing underwriter, if
any, to facilitate the timely preparation and delivery of certificates
representing Registrable Securities to be sold, which certificates shall not
bear any restrictive legends whatsoever and shall be in a form eligible for
deposit with DTC, and enable such Registrable Securities to be in such
denominations and registered in such names as the underwriters, if any, or
Holders may reasonably request at least two (2) business days prior to any sale
of Registrable Securities in a firm commitment underwritten public offering;
(j) use its reasonable efforts to cause the Registrable
Securities covered by a Registration Statement to be registered with, and to
obtain the consent or approval of, each governmental agency or authority,
whether federal, state, local or foreign, which may be required to effect such
registration or the offering or sale in connection therewith or to enable the
sellers
7
to offer, or to consummate the disposition of, the Registrable Securities
subject to such Registration Statement, except as may be required solely as a
consequence of the nature of such seller's business, in which case the Company
will cooperate with all reasonable respects with the filing of the Registration
Statement and the granting of such approvals;
(k) prior to the effective date of the Registration Statement,
(i) provide the registrar for the Common Stock or such other Registrable
Securities with printed certificates for such securities in a form eligible for
deposit with DTC and (ii) provide a CUSIP number for such securities;
(l) the Company agrees not to file or make any amendment to any
Registration Statement with respect to any Registrable Securities, or any
amendment of or supplement to the Prospectus used in connection therewith, which
refers to any seller of any securities covered thereby by name, or otherwise
identifies such seller as the holder of any securities of the Company, without
the consent of such seller, such consent not to be unreasonably withheld, except
that no such consent shall be required for any disclosure that is required by
law.
In connection with each registration hereunder, the Holders of
Registrable Securities will furnish to the Company in writing such information
required by the Company with respect to themselves and the proposed distribution
by them as shall be reasonably necessary in order to assure compliance with
Federal and applicable state securities laws. The Company shall not be obligated
to register the Registrable Securities of any Holder who fails promptly to
provide to the Company such information as the Company may reasonably request at
the time to enable the Company to comply with applicable laws or regulations or
to facilitate preparation of the registration statement, including any
information that the Holder fails to provide on the basis that such information
would violate any law or any contractual arrangement.
ARTICLE 6. UNDERWRITTEN OFFERINGS
The provisions of this Article 6 do not establish additional registration rights
but instead set forth procedures applicable, in addition to those set forth in
Articles 2 and 3, to any registration that is an underwritten offering.
(a) Underwritten Offerings Exclusive. Whenever a request for
Registration is for an underwritten offering, only securities that are to be
distributed by the underwriters may be included in the Registration.
(b) Underwriting Agreement. If requested by the underwriters for
any underwritten offering by Holders pursuant to a request for Registration, the
Company shall enter into an underwriting agreement with such underwriters for
such offering, such agreement to be reasonably satisfactory in substance and
form to the Company and Holders of a majority of the Registrable Securities to
be covered by such registration and to the underwriters and to contain such
representations and warranties by the Company and such other terms and
provisions as are customarily contained in agreements of this type.
(c) Selection of Underwriters. The Company shall have the right
to select any underwriters to administer any underwritten offerings hereunder,
subject to the consent of the
8
Holders of a majority of the Registrable Securities to be registered pursuant to
such offering, which shall not be unreasonably withheld.
ARTICLE 7. PREPARATION, REASONABLE INVESTIGATION
In connection with the preparation and filing of each Registration Statement
registering Registrable Securities under the Securities Act, the Company shall
give the Holders of Registrable Securities to be so registered and their
underwriters, if any, and their respective counsel and accountants, such access
to all pertinent financial, corporate, and other documents and properties of the
Company and its Subsidiaries, and such opportunities to discuss the business of
the Company with its officers, directors, employees and the independent public
accountants who have issued audit reports on its financial statements as shall
be necessary, in the opinion of such Holders' and such underwriters' respective
counsel, to conduct a reasonable investigation within the meaning of the
Securities Act.
ARTICLE 8. OTHER REGISTRATIONS
If and whenever the Company is required to use its best efforts to effect the
registration under the Securities Act of any Registrable Securities pursuant to
Articles 2 or 3, and if such registration shall not have been withdrawn or
abandoned, the Company shall not be obligated to and shall not file any
Registration Statement with respect to any of its securities (including
Registrable Securities) under the Securities Act (other than a Special
Registration), whether of its own accord or at the request or demand of any
holder or holders of such securities, until a period of 90 days shall have
elapsed from the effective date of such previous registration, provided that the
Company shall not be excused from filing a Registration Statement by virtue of
this Article 8 more than once in a 360 day period.
ARTICLE 9. CERTAIN OBLIGATIONS OF HOLDERS
(a) The Company may require each Holder of any Registrable
Securities as to which any registration is being effected to furnish to the
Company such information regarding such Holder and the intended method of
disposition of such securities as the Company may from time to time reasonably
request and as shall be required to effect the registration of such Holder's
Registrable Securities. Each such Holder agrees to furnish promptly to the
Company all information required to be disclosed in order to make the
information previously furnished to the Company by such Holder not materially
misleading.
(b) Each Holder of Registrable Securities covered by a
Registration Statement agrees that, upon receipt of any notice from the Company
pursuant to Section 5(h), such Holder will promptly discontinue the disposition
of Registrable Securities pursuant to such Registration Statement until such
Holder shall have received, in the case of clause (i) of Section 5(h), notice
from the Company that such Registration Statement has been amended, as
contemplated by Section 5(h), and, in the case of clause (ii) of Section 5(h),
copies of the supplemented or amended Prospectus contemplated by Section 5(h).
If so directed by the Company, each Holder will deliver to the Company all
copies, other than permanent file copies, in such Holder's possession of the
Prospectus covering such Registrable Securities at the time of receipt of such
notice. In the event that the Company shall give any such notice, the period
mentioned in
9
Section 5(b) shall be extended by the number of days during the period from and
including the date of the giving of such notice to and including the date when
each seller of any Registrable Securities covered by such Registration Statement
shall have received copies of the supplemented or amended Prospectus covering
such Registrable Securities contemplated by Section 5(h).
ARTICLE 10. INDEMNIFICATION AND CONTRIBUTION
(a) In the event of any registration of any of the Registrable
Securities under the Securities Act pursuant to this Agreement, the Company will
indemnify and hold harmless the Holder of such securities, its directors,
officers, and employees, each other Person who participates as an underwriter,
broker or dealer (each a "Participating Person") in the offering or sale of such
securities, and each other person, if any, who controls such Holder, or such
Participating Person (each a "Controlling Person") within the meaning of the
Securities Act or the Exchange Act, against any losses, claims, damages, or
liabilities, joint or several, to which such Holder or any such director,
officer, employee, Participating Person, or Controlling Person may become
subject under the Securities Act, the Exchange Act, state securities or blue sky
laws, or otherwise, insofar as such losses, claims, damages, or liabilities (or
actions or proceedings in respect thereof), including any of the foregoing
incurred in settlement of any litigation commenced or threatened, arise out of
or are based upon any untrue statement or alleged untrue statement of any
material fact contained in any Registration Statement, any Prospectus contained
in the Registration Statement, or any amendment or supplement to such
Registration Statement, or arise out of or are based upon the omission or
alleged omission to state a material fact required to be stated therein or
necessary to make the statements therein not misleading and the Company shall
reimburse such Holder and each such director, officer, employee, Participating
Person, and Controlling Person for any reasonable legal or any other reasonable
expenses, in connection with investigating or defending any such loss, claim,
damage, liability, action or proceeding as such expenses are incurred, whether
or not resulting in any liability; provided, however, that the Company will not
be liable in any such case to the extent that any such loss, claim, damage,
liability or expense arises out of or is based upon any untrue statement or
omission made in such Registration Statement, preliminary prospectus,
Prospectus, or any such amendment or supplement, in reliance upon and in
conformity with information furnished to the Company, in writing, by or on
behalf of such Holder, Participating Person or Controlling Person specifically
for use in the preparation thereof. The indemnity agreement contained in this
Article 10(a) shall not apply to amounts paid in settlement of any such loss,
claim, damage, liability or action if such settlement is effected without the
consent of the Company.
(b) In the event of any registration of any of the Registrable
Securities under the Securities Act pursuant to this Agreement, each Holder of
such Registrable Securities, severally and not jointly, will indemnify and hold
harmless the Company, each of its directors and officers and each underwriter
(if any) and each person, if any, who controls the Company or any such
underwriter within the meaning of the Securities Act or the Exchange Act,
against any losses, claims, damages, or liabilities, joint or several, to which
the Company, such directors and officers, underwriters, or controlling Persons
may become subject under the Securities Act, Exchange Act, state securities or
blue sky laws, or otherwise, insofar as such losses, claims, damages, or
liabilities (or actions or proceedings in respect thereof) arise out of or are
based
10
upon any untrue statement or alleged untrue statement of a material fact
contained in any Registration Statement or Prospectus contained in the
Registration Statement, or any amendment or supplement to the Registration
Statement, or arise out of or are based upon any omission or alleged omission to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading, if the statement or omission was made in
reliance upon and in conformity with information relating to such Holder
furnished in writing to the Company by or on behalf of such Holder for use in
connection with the preparation of such Registration Statement, preliminary
prospectus, Prospectus, amendment, or supplement; provided, however, that the
liability of each such Holder hereunder shall be in proportion to and limited to
the gross amount received by such Holder from the sale of Registrable Securities
sold in connection with such registration.
(c) Each party entitled to indemnification under this Article 10
(the "Indemnified Party") shall give notice to the party required to provide
indemnification (the "Indemnifying Party") promptly after such Indemnified Party
has actual knowledge of any claim as to which indemnity may be sought, and shall
permit the Indemnifying Party to assume the defense of any such claim or any
litigation resulting therefrom; provided, that counsel for the Indemnifying
Party, who shall conduct the defense of such claim or litigation, shall be
approved by the Indemnified Party (whose approval shall not be unreasonably
withheld); and, provided, further, that the failure of any Indemnified Party to
give notice as provided herein shall not relieve the Indemnifying Party of its
obligations under this Article 10, except to the extent that the Indemnifying
Party is adversely affected by such failure. The Indemnified Party may
participate in such defense at such party's expense; provided, however, that the
Indemnifying Party shall pay such expense if representation of such Indemnified
Party by the counsel retained by the Indemnifying Party would be inappropriate
due to actual or potential differing interests or conflicts between the
Indemnified Party and any other party represented by such counsel in such
proceeding. No Indemnifying Party, in the defense of any such claim or
litigation, shall, except with the consent of each Indemnified Party, consent to
entry of any judgment or enter into any settlement that does not include as an
unconditional term thereof the giving by the claimant or plaintiff to such
Indemnified Party of a release from all liability in respect of such claim or
litigation, and no Indemnified Party shall consent to entry of any judgment or
settle such claim or litigation without the prior written consent of the
Indemnifying Party, which consent shall not be unreasonably withheld.
(d) If for any reason the foregoing indemnity is unavailable, or
is insufficient to hold harmless an Indemnified Party, other than by reason of
the exceptions provided in this Article 10, then the Indemnifying Party shall,
in lieu of indemnifying such Indemnified Party, contribute to the amount paid or
payable by the Indemnifying Party as a result of such losses, claims, damages
liabilities or expenses in such proportion as is appropriate to reflect the
relative fault of the Indemnifying Party on the one hand and the Indemnified
Party on the other in connection with the statements or omissions which resulted
in such losses, claims, damages, or liabilities, as well as any other relevant
equitable considerations. The relative fault shall be determined by reference
to, among other things, whether the untrue or alleged untrue statement of a
material fact or the omission or alleged omission to state a material fact
relates to information supplied by the Company or the Holders of Registrable
Securities covered by the Registration Statement in question and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission.
11
ARTICLE 11. INDEMNIFICATION WITH RESPECT TO UNDERWRITTEN OFFERING
In the event that Registrable Securities are sold pursuant to a Registration
Statement in an underwritten offering, the Company agrees to enter into an
underwriting agreement containing customary representations and warranties with
respect to the business and operations of an issuer of the securities being
registered and customary covenants and agreements to be performed by such
issuer, including without limitation customary provisions with respect to
indemnification by the Company of the underwriters of such offering.
ARTICLE 12. REPORTS UNDER SECURITIES EXCHANGE ACT OF 1934
With a view to making available to the Holders the benefits of Rule 144
promulgated under the Securities Act and any other rule or regulation of the
Commission that may at any time permit a Holder to sell Registrable Securities
of the Company to the public without Registration, the Company agrees to use its
reasonable efforts to:
(a) Make and keep public information available, as those terms
are understood and defined in Rule 144 under the Securities Act;
(b) file with the Commission in a timely manner all reports and
other documents required of the Company under the Securities Act and the
Exchange Act; and
(c) furnish to any Holder, so long as such Holder owns any
Registrable Securities, forthwith upon request (i) a written statement by the
Company that it has complied with the reporting requirements of Rule 144 under
the Securities Act, any other such applicable reporting requirements under the
Securities Act and all applicable reporting requirements under the Exchange Act,
(ii) a copy of the most recent annual or quarterly report of the Company and
such other reports and documents so filed by the Company, and (iii) such other
information as may be reasonably requested in availing any Holder of any rule or
regulation of the Commission which permits the selling of any such securities
without Registration or pursuant to such form.
ARTICLE 13. SUCCESSORS, ASSIGNS AND TRANSFEREES
This Agreement shall be binding upon and shall inure to the benefit of each
party hereto, and their respective successors, assigns and transferees. The
Carlyle Group or any other Holder under this Agreement may assign its rights
under this Agreement only to (i) an Affiliate, (ii) other successors, assigns
and transferees of Carlyle L.L.C., Carlyle, C/S, or Carlyle U.S., or (iii) any
Holder of not less than the lesser of ten percent (10%) of the Warrant Shares
and the Dividend Shares originally held by the Carlyle Group or all the
remaining shares of Registrable Securities held by the assignor (or such lesser
amount of total Registrable Securities held by the assignor) (subject to
adjustment for stock splits, stock dividends and the like); provided, however,
that the Company is given written notice from the Carlyle Group or any such
Holder at the time of such transfer stating the name and address of the
transferee or assign and identifying the securities with respect to which the
rights hereunder are being transferred. As a condition to the effectiveness of
any transfer permitted hereunder (i) the transferee or assign shall agree, in
writing, to be bound by the provisions of this Agreement and (ii) the Company
shall be given written notice at the time of or within a reasonable time after
said transfer or assignment, stating the name and address of said transferee or
assign and identifying the securities with respect to
12
which such registration rights are being assigned. Provided that the Carlyle
Group or any Holder and any transferee or assignee has complied with the
foregoing conditions, this Agreement shall survive any transfer of Registrable
Securities to and shall inure to the benefit of an Affiliate or such other
successors, assigns and transferees of the Carlyle Group or any such Holder.
ARTICLE 14. MISCELLANEOUS
(a) No Inconsistent Agreements. The Company will not hereafter
enter into any agreement with respect to its securities which is inconsistent
with or violates the rights granted to the Holders in this Agreement.
(b) Severability. If any term, provision, covenant or restriction
of this Agreement is held by a court of competent jurisdiction to be invalid,
void or unenforceable, the remainder of the terms, provisions, covenants and
restrictions of this Agreement shall remain in full force and effect and shall
in no way be affected, impaired or invalidated. It is hereby stipulated and
declared to be the intention of the parties that they would have executed the
remaining terms, provisions, covenants, and restrictions without including any
of such which may be hereafter declared invalid, void or unenforceable.
(c) Termination. This Agreement shall terminate upon the earlier
to occur of (i) the Registrable Securities held by the Carlyle Group cease to be
Registrable Securities or (ii) the expiration of the Effectiveness Period.
(d) Notices. All notices and other communications required or
permitted under this Agreement shall be effective upon receipt and shall be in
writing and may be delivered in person, by telecopy, overnight delivery service
or registered or certified United States mail, addressed to the Company, Carlyle
Group (or to any other Holder not a party hereto on the date hereof, to the
address of such Holder in the stock record books of the Company), as the case
may be, at their respective addresses set forth below:
If to the Company: Sight Resource Corporation
0000 Xxxxx Xxxxxx
Xxxxxxxxxx, Xxxx 00000-00000
Attn: Chief Executive Officer
with a copy to: Mintz, Levin, Cohn, Ferris,
Glovsky and Popeo, P.C.
Xxx Xxxxxxxxx Xxxxxx
Xxxxxx, XX 00000
Attn: Xxxxx X. Xxxxxx, Esq.
Fax: (000) 000-0000
If to the Carlyle Group: Carlyle Venture Partners, L.P.
0000 Xxxxxxxxxxxx Xxxxxx, XX
Xxxxx 000 Xxxxx
Xxxxxxxxxx, XX 00000
Attn: Xxxx Xxxxxxx
13
Fax: (000) 000-0000
with a copy to: Xxxxxx, Xxxxxx & Xxxxxxxxx
0000 X Xxxxxx, XX
Xxxxxxxxxx, XX 00000
Attn: Xxxx X. Xxxxxxx, Esq.
Fax: (000) 000-0000
All notices and other communications shall be effective upon the earlier of
actual receipt thereof by the person to whom notice is directed or (a) in the
case of notices and communications sent by personal delivery or telecopy, one
business day after such notice or communication arrives at the applicable
address or was successfully sent to the applicable telecopy number, (b) in the
case of notices and communications sent by overnight delivery service, at noon
(local time) on the second business day following the day such notice or
communications was delivered to such delivery service, and (c) in the case of
notices and communications sent by United States mail, seven days after such
notice or communication shall have been deposited in the United States mail. Any
notice delivered to a party hereunder shall be sent simultaneously, by the same
means, to such party's counsel as set forth above.
(e) Entire Agreement. This Agreement contains the entire
understanding of the parties with respect to the matters covered hereby.
(f) Amendments and Waivers. This Agreement may be amended as to
the Holders and their successors and assigns (determined as provided in Article
14), and the Company may take any action herein prohibited, or omit to perform
any act required to be performed by it, only if the Company shall obtain the
written consent of the Holders of 2/3 of the Registrable Securities. This
Agreement may not be waived, changed, modified, or discharged orally, but only
by an agreement in writing signed by the party or parties against whom
enforcement of any waiver, change, modification or discharge is sought or by
parties with the right to consent to such waiver, change, modification or
discharge on behalf of such party; provided, however, that any consent required
by the Holders shall require the consent in writing of no less than the Holders
of 2/3 of the Registrable Securities.
(g) Headings; Counterparts. Headings in this Agreement are for
purposes of reference only and shall not limit or otherwise affect the meaning
hereof. This Agreement may be executed in any number of counterparts, each of
which shall be an original, but all of which together shall constitute one and
the same instrument, and shall become effective when one or more of the
counterparts have been signed by each party and delivered to the other parties,
it being understood that all parties need not sign the same counterpart.
(h) Governing Law. This Agreement shall be construed in
accordance with and governed by the laws of the State of Delaware without regard
to conflicts of law principles.
(i) No Third Party Beneficiaries. Except as provided by Articles
11 and 14, nothing contained in this Agreement is intended to confer upon any
Person other than the parties hereto and their respective successors and
permitted assigns and transferees, any benefit, right or remedies under or by
reason of this Agreement.
14
(j) Consent to Jurisdiction. Each of the parties hereto
irrevocably submits to the personal exclusive jurisdiction of the United States
District Court for the District of Delaware for the purposes of any suit, action
or other proceeding arising out of this Agreement or any transaction
contemplated hereby (and, to the extent permitted under applicable rules of
procedure, agrees not to commence any action, suit or proceeding relating hereto
except in such court). Each of the parties hereto further agrees that service of
any process, summons, notice or document hand delivered or sent by registered
mail to such party's respective address set forth in Section 14(d) will be
effective service of process for any action, suit or proceeding in Delaware with
respect to any matters to which it has submitted to jurisdiction as set forth in
the immediately preceding sentence. Each of the parties hereto irrevocably and
unconditionally waives any objection to the laying of venue of any action, suit
or proceeding arising out of this Agreement or the transactions contemplated
hereby in the United States District court for the District of Delaware, and
hereby further irrevocably and unconditionally waives and agrees not to plead or
claim in such court that any such action, suit or proceeding brought in such
court has been brought in an inconvenient forum.
Signature Page Follows
15
IN WITNESS WHEREOF, the Company and the Carlyle Group have caused this
Agreement to be executed in their names by their duly authorized officers or
representatives effective as of the date first above written.
THE COMPANY:
SIGHT RESOURCE CORPORATION
By: /s/ Xxxxxx X. Xxxxxxx
--------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: President
THE CARLYLE GROUP:
CARLYLE VENTURE PARTNERS, L.P.
By: /s/ Xxxxxx X. Xxxxx
--------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Managing Director
C/S VENTURE INVESTORS, L.P.
By: /s/ Xxxxxx X. Xxxxx
--------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Managing Director
CARLYLE U.S. VENTURE PARTNERS, L.P.
-----------------------------------
By: /s/ Xxxxxx X. Xxxxx
--------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Managing Director
CARLYLE VENTURE COINVESTMENT, L.L.C.
-----------------------------------------
By: /s/ Xxxxxx X. Xxxxx
--------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Managing Director
16
