EXHIBIT 10.55
ASSET PURCHASE AGREEMENT
ASSET PURCHASE AGREEMENT
THIS ASSET PURCHASE AGREEMENT (this "Agreement") is entered into on
January 27, 2005 by and between EYEGLASS EMPORIUM, INC., a Delaware corporation
("Seller") (a wholly owned subsidiary of Sight Resource Corporation, a Delaware
corporation ("SRC")), VISION POINT I AND II, LLC's, Indiana limited liability
companies ("Buyer"), and SRC, which enters into this Agreement for the sole
purpose of being bound by the provisions of Section 5 below:
RECITALS:
A. WHEREAS, Seller is in the business of marketing and selling to the
general public at six retail eye care centers in the State of Indiana (the
"Centers") eyeglass frames and lenses, contact lenses and related eyewear
accessories (the "Business"); and
B. WHEREAS, Seller and Buyer have agreed, on the terms and subject to
the conditions of this Agreement, that Seller shall sell to Buyer, and Buyer
shall purchase from Seller, substantially all of the assets owned and used by
Seller in the conduct of the Business; and
C. WHEREAS, on June 24, 2004 Seller filed in the United States
Bankruptcy Court for the Southern District of Ohio (the "Bankruptcy Court") a
voluntary petition for relief under Title 11 of Chapter 11 of the United States
Code (the "Bankruptcy Code") and Seller and Buyer also have agreed that this
Agreement shall be subject to the approval of the Bankruptcy Court pursuant to
Section 363 of the Bankruptcy Code so that, inter alia, the Assets (as defined
in Section 1 below) can be conveyed by Seller to Buyer free and clear of any
interests other than the Assumed Liabilities (as defined in Section 3.2 below).
NOW, THEREFORE, in consideration of the mutual undertakings herein, and
other good and valuable considerations, the receipt and sufficiency of all of
which the parties hereby acknowledge, it is agreed that:
1. PURCHASE AND SALE OF ASSETS.
1.1 Subject Assets. If Buyer is the successful bidder at
the Bankruptcy Court auction sale of certain assets of Seller to be conducted
on or about January 27, 2005, then subject to approval of the Bankruptcy
Court, Buyer shall purchase from Seller and Seller shall sell, transfer,
convey and deliver to Buyer, on the terms and subject to the conditions of
this Agreement, as modified by any increase in purchase price as a
consequence of the successful highest bid, at the Closing (as defined in
Section 6 below) all of Seller's direct and indirect rights, titles and
interests in and to the following tangible and intangible property owned,
leased or otherwise used by Seller in connection with the operation of the
Business (the "Assets"):
(a) Inventory. All eyeglass frames and lenses, contact
lenses, related eyewear accessories and other inventory owned by Seller and
located in or at the Centers;
(b) FFE. All office furniture and equipment, optical
equipment, appliances, display cases, fixtures, supplies, accessories and other
tangible personal property located in or at the Centers including, without
limitation, the personal property described on the attached Exhibit A (the
"FFE");
(c) Leases. All real property leases for the Centers
identified on the attached Exhibit B (the "Store Leases") together with all
security deposits held by lessors or landlords in accordance with the provisions
of each Store Lease;
(d) Contracts. All managed care contracts, all written
agreements with doctors of optometry (the "Doctor Agreements") listed on the
attached Exhibit C and other written or oral customer contracts, agreements and
commitments (including customer deposits) (together with the Doctor Agreements,
the "Assumed Contracts"); (e) Intellectual Property. The name "Eyeglass
Emporium" and all related service marks, logos and other proprietary rights and
intellectual property under, by and through which Seller conducts the Business
including, without limitation: (i) the United States registered service xxxx
"Eye Glass Emporium", serial number 73692008 filed October 26, 1987 in the
United States Patent Office; (ii) all advertising devices displaying the
Eyeglass Emporium service xxxx including, without limitation, all signs, kiosks
and other advertising media; (iii) all stocks of business forms and promotional
pass out literature that contains or makes reference to Eyeglass Emporium; and
(iv) all presently existing telephone numbers for each of the Centers to the
extent such numbers are transferable (the "Intellectual Property"); and
(f) Books and Records. All books and records including,
without limitation, Seller's hard copies and electronic versions of the
accounting records, customer lists, patient records, manuals, personnel,
employment and payroll files, promotional materials, business forms, permits,
licenses, titles and other written, printed or electronic information of any
kind used by Seller or its employees and contractors/tenant doctors of optometry
to conduct the Business, including without limitation all data and information
in the Seller's POS Delta System (access to which shall be provided by Seller to
Buyer for electronic transfer at Buyer's expense) and any and all other records
and information (the "Books and Records").
1.2 "As Is" Transaction. Buyer hereby acknowledges and agrees
that, except as otherwise expressly provided in this Agreement, Seller makes no
representations or warranties of any kind whatsoever, express or implied, with
respect to any matter relating to the Assets or otherwise relating to any of the
transactions contemplated hereby including, without limitation, any income to be
derived or expenses to be incurred in connection with the Assets or the conduct
of the Business, the physical condition of any tangible Assets or improvements
which are the subject of any Store Leases to be assumed by Buyer at the Closing,
the value of the Assets, the terms or amounts of any Assumed Liabilities, or the
merchantability or fitness of the Assets for any particular purpose.
Accordingly, subject to the representations, warranties and covenants expressly
set forth in this Agreement Buyer shall accept the Assets at the Closing "AS
IS," "WHERE IS" AND "WITH ALL FAULTS."
2. EXCLUDED ASSETS. Buyer shall not purchase or otherwise acquire from
Seller, and Seller shall retain all of its rights, titles and interests in and
to: (a) all cash, cash equivalents, bank accounts and securities of Seller; (b)
all accounts receivable of Seller, except that Buyer shall be entitled to
receive payment for all services rendered by it after closing for completion of
work in process commenced by Seller and not completed at the time of closing
provided Buyer's services are necessary to complete performance of an oral or
written
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contract assumed by it in accordance with Section 3 below;. (c) all causes of
action and claims which Seller may have under Sections 506, 510, 542 through 551
inclusive and 553 of the Bankruptcy Code; and (d) all assets not specifically
enumerated in Section 1 above.
3. RETENTION AND ASSUMPTION OF LIABILITIES.
3.1 Liabilities Retained by Seller. Subject to Section 3.2
below, and except as otherwise expressly provided in this Agreement, Seller
shall remain solely and entirely responsible for its own liabilities and Buyer
shall not assume or otherwise be liable for or acquire the Assets subject to,
and Buyer's purchase of the Assets shall not constitute or be deemed to
constitute the assumption of, any liabilities of Seller whatsoever, whether
direct or indirect, fixed or contingent, disputed or undisputed, liquidated or
unliquidated, known or unknown, recorded or unrecorded.
3.2 Liabilities Assumed by Buyer. Buyer shall pay and
otherwise perform when due the obligations of Seller: (a) under the Store Leases
and the Assumed Contracts relating to periods after the Closing Date (as defined
in Section 6 below); and (b) to Seller's current employees only for accrued but
unused PTO (paid time-off) including, without limitation, accrued but unused
sick leave, family leave and vacation time for those employees that Buyer, in
the exercise of its sole judgment, elects to employ as provided in Section 3.3
below (collectively the "Assumed Liabilities").
3.3 Seller's Employees. Buyer shall have the right, but not
the obligation, to employ any present employee of Seller. Buyer shall have no
responsibility or liability as a result of Buyer's acquisition of the Assets, or
its employment of any such employees, with respect to contributions to or
obligations for any of Seller's employee benefit plans, any multi-employer
pension plan to which Seller may contribute or, except as provided in Section
3.2 above, any other liability or employee fringe benefit of Seller which is due
or unsatisfied as of the Closing.
4. PURCHASE PRICE.
4.1 Amount. The purchase price for the Assets shall be: (a)
the successful bid amount reached pursuant to the bid procedure and reflected in
the sale procedure order, which shall be allocated as outlined below and
pro-rated to the final bid amount:
Inventory $269,000
FFE $ 56,000
Store Leases and Assumed Contracts $ 60,000
Intellectual Property and Books and Records $122,811
Goodwill/Name $ 29,189
--------
$537,000
plus (b) the Assumed Liabilities.
4.2 Reporting. The purchase price for the Assets shall be
allocated for federal income tax purposes in accordance with Section 4.1 above
and IRS Form 8594 required to be filed under Section 1060 of the Internal
Revenue Code of 1986, as amended (the "Code"), in connection with the purchase
and sale of the Assets shall reflect such allocations. Seller and Buyer shall
file all tax and other returns in a manner consistent with such allocations and
shall take no position contrary thereto.
4.3 Prorations. All payments from doctors in accordance with
the Doctor Agreements, all lease and rental charges (including, without
limitation, rent and other amounts payable by Seller under the Store Leases),
and all monthly utility charges shall be prorated
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between Seller and Buyer as of the Closing Date, with Seller being responsible
for, and entitled to the benefit of, all such charges and payments relating to
periods prior to the Closing Date and Buyer being responsible for, and entitled
to the benefit of, all such charges and payments, on and after the Closing Date.
Should either Seller or Buyer pay any such charges for which the other party is
responsible, then the responsible party shall promptly reimburse the other party
therefor. Should either Seller or Buyer receive any revenues to which the other
party is entitled, then such revenues shall promptly be paid over to the
appropriate party.
4.4 Transfer Taxes. Buyer shall pay all federal, state and
local sales, use, transfer, documentary stamp, conveyance, recording, conveyance
and similar taxes arising out of, in connection with or related to the
transactions contemplated by this Agreement.
5. NON COMPETITION AGREEMENT. Seller and SRC shall enter into a non
competition agreement prohibiting the ownership, operation, or participation in
any manner by Seller, SRC and any affiliate of them in any retail eye glass
store in competition with Buyer in Lake, Xxxxxx and LaPorte Counties in the
State of Indiana for a three (3) year period commencing on the Effective Time
(the "Non Competition Agreement"). "Affiliate" as used in this Section 5, means
any person or entity who controls, is controlled by, or is under common control
with Seller or SRC, either directly or indirectly through intermediaries.
6. CLOSING. The closing of the transactions contemplated by this
Agreement (the "Closing") shall take place on or before January 28, 2005 or at
such other date and time to which the parties may agree (the "Closing Date"). At
the Closing:
6.1 Buyer's Payments and Deliveries. Buyer shall deliver to
Seller:
(a) the successful bid amount, plus or minus any
adjustments provided for in this Agreement, in immediately available funds by
wire transfer to a bank account designated by Seller;
(b) one or more agreements effecting the assignment to
Buyer of the Store Leases and Assumed Contracts;
(c) a certified copy of the consent of the board of
directors of Buyer authorizing and directing Buyer to enter into and perform its
obligations under this Agreement; and
(d) such other documents, instruments and deliveries as
Seller reasonably may request.
6.2 Seller's Deliveries. Seller shall deliver to Buyer:
(a) a xxxx of sale conveying all of the Assets to Buyer;
(b) one or more agreements effecting Seller's assignment
of the Store Leases and Assumed Contracts;
(c) a certified copy of the consent of the board of
directors of Seller authorizing and directing Seller to enter into and perform
its obligations under this Agreement;
(d) the Non Competition Agreement executed by Seller and
SRC; and
(e) such other documents, instruments and deliveries as
Buyer reasonably may request.
The purchase and sale of the Assets shall be effective at 6:00 p.m. local time
on the Closing Date (the "Effective Time"). Closing shall take place at a
location mutually agreed on by the parties. Buyer shall be given possession of
the Assets at the Effective Time. Until the Effective Time, all employees of
Seller shall continue to be its employees, and all business operations of Seller
shall be for Seller's account and risk and Seller shall bear all risk of loss.
7. REPRESENTATIONS AND WARRANTIES OF SELLER. If and only to the extent
that under applicable federal, state or local law the breach of any of the
following
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representations or warranties would result in, or fail to disclose, a lien upon
or claim against the Assets, or result in a claim against Buyer for a liability
of Seller (other than the Assumed Liabilities), and subject to its obligations
as a debtor-in-possession under the Bankruptcy Code, Seller hereby represents
and warrants to and covenants with Buyer that:
7.1 Organization. Seller is a corporation duly organized,
validly existing and in good standing under the laws of the State of Delaware
and is the sole owner of the Assets. Subject to its obligations as a
debtor-in-possession under the Bankruptcy Code, Seller has full authority and
power to carry on the Business as it is now conducted.
7.2 Authority and Enforceability.
(a) Seller has and at the Closing will have all
requisite power, right and authority to enter into this Agreement and to
consummate the transactions contemplated by this Agreement. All action required
under applicable law has been or will be taken by the board of directors of
Seller to authorize Seller's execution of, and the consummation of the
transactions contemplated by, this Agreement. This Agreement and each other
agreement and instrument to be executed by Seller in connection herewith have
been (or upon execution will have been) duly executed and delivered by Seller
and constitute (or upon execution will constitute) legal, valid and binding
obligations of Seller enforceable against Seller in accordance with their
respective terms.
(b) All consents, approvals and authorizations and all
other requirements prescribed by any law, rule or regulation which must be
obtained or satisfied by Seller and which are necessary for the execution and
delivery by Seller of this Agreement and the documents to be executed and
delivered by Seller in connection herewith and in order to permit the
consummation of the transactions contemplated by this Agreement have been
obtained and satisfied or will be obtained and satisfied by the Closing.
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7.3 No Violation or Conflict. The execution and delivery of
this Agreement, the consummation of the transactions contemplated hereby and the
fulfillment of the terms hereof will not violate or result in a breach of any of
the terms or provisions of, or constitute a default (or an event which, with
notice or the passage of time, or both, would constitute a default) under, or
conflict with or result in the termination of, or accelerate the performance
required by any: (a) agreement, indenture, contract or other instrument to which
Seller is a party or by which Seller or the Assets are bound except the loan
agreements between Seller and CadleRock Joint Venture, L.P.; (b) Seller's
Articles of Incorporation; (c) any judgment, decree, order or award of any
court, governmental body or arbitrator by which Seller or the Assets are bound;
or (d) any law, rule or regulation applicable to Seller or the Assets.
7.4 Title to Assets. Seller has good title to, is the sole
lawful owner of, and has the right to use all of the Assets and at the Closing
will transfer the Assets to Buyer free and clear of all liens, mortgages,
leases, pledges, security interests, restrictions, prior assignments,
encumbrances and claims of any kind or nature.
7.5 Store Leases and Assumed Contracts. Seller has made all
required post-petition payments under the Store Leases and the Assumed Contracts
and otherwise is in compliance with its post-petition obligations thereunder. In
connection with the Sale Motion (as defined in Section 9.1 below) and upon the
entry of the Sale Order (as defined in Section 9.1 below), Seller shall pay
pursuant to Section 365 of the Bankruptcy Code all cure amounts related to the
Store Leases and Assumed Contracts and cure all defaults so as to enable Seller
to assume and to assign to Buyer at the Closing the Store Leases and Assumed
Contracts.
7.6 Employment Matters.
(a) There are: (i) no pending or, to the knowledge of
Seller, threatened claims by any employee of Seller (each, an "Employee") or any
person who in the past has worked for Seller (each, a "Former Employee") against
Seller, other than for compensation and benefits due in the ordinary course of
employment; and (ii) no pending or, to the knowledge of Seller, threatened
claims against Seller arising out of any statute, ordinance or regulation
relating to employment practices or occupational or safety and health standards.
Subject to Section 3.2(b) above, Seller is and after the Closing shall remain
responsible for all Employee and Former Employee claims against Seller arising
out of events or transactions occurring prior to Closing.
(b) Schedule 7.6 hereto identifies all Employees on
leave of absence and all Employees and Former Employees and their dependents
receiving health benefits, or eligible to receive health benefits, as required
by the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended
("COBRA"). Notice of the availability of health care continuation coverage for
Employees, Former Employees and their respective dependents and qualified
beneficiaries, in accordance with the requirements of COBRA, has been provided
to all persons entitled thereto, and all persons electing such coverage are
being (or have been, if applicable) provided such coverage. Buyer does not
assume this liability.
7.7 Employee Benefit Plans. Schedule 7.7 hereto lists all
qualified and non-qualified plans, programs, agreements, commitments and
arrangements maintained by or on behalf of Seller that provide benefits or
compensation to, or for the benefit of, any Employee or Former Employee (the
"Plans"). To the knowledge of Seller, all of the Plans are in substantial
compliance with the Employee Retirement Income Security Act of 1974, as amended
("ERISA"), and the Internal Revenue Code. Nothing in this Section 7.7 shall be
construed to create an obligation on the part of the Buyer to assume or succeed
to any obligation of Seller under Seller's Plans or to continue such Plans for
any of those employees of Seller that Buyer
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elects to employ in accordance with Section 3.3 hereof and Seller is and after
Closing shall remain responsible for continuation or termination of such Plans
as it shall elect.
7.8 Taxes. Except as disclosed on Schedule 7.8 hereto, to the
knowledge of Seller it has collected or withheld, and has paid over to the
proper governmental authorities, all federal, state and local sales taxes, local
real estate taxes, local personal property taxes, employment taxes, and workers
compensation premiums. Seller is and after the Closing shall remain responsible
for all federal, state and local taxes, employment taxes and workers
compensation premiums, employee withholding tax amounts and employee W-2
issuance attributable to Seller's ownership of the Assets and operation of the
Business prior to the Closing.
7.9 Litigation. To the knowledge of Seller there is no action,
suit, proceeding or investigation to which Seller is a party (either as a
plaintiff or defendant) presently pending, nor has any such action, suit,
proceeding or investigation been pending at any time during the past two years,
before any court or governmental agency, authority or body or arbitrator; to the
knowledge of Seller, there is no action, suit, proceeding or investigation
threatened against Seller and, to the knowledge of Seller, there is no basis for
any such action, suit, proceeding or investigation.
7.10 Compliance with Law. To the knowledge of Seller, it is in
substantial compliance with all laws, regulations, rules, permits, zoning
requirements, authorizations, licenses and certificates required under
applicable law for the conduct of the Business. To the knowledge of Seller: (a)
no default or violation, or event that with the lapse of time or the giving of
notice, or both, would become a default or violation, has occurred in its
compliance with each such law, regulation, rule, permit, authorization, license
and certificate; and (b) no action has been taken or recommended by any
governmental, regulatory or administrative official, agency or authority, to
revoke, withdraw or suspend any authorization, license or certificate necessary
for Seller to own the Assets or to operate the Business.
8. REPRESENTATIONS AND WARRANTIES OF BUYER. Buyer represents and
warrants to and covenants with Seller that:
8.1 Organization. Buyer is comprised of two limited liability
companies duly organized, validly existing and in good standing under the laws
of the State of Indiana and is qualified to do business in the State of Indiana.
Buyer has full power and authority to carry on its business as it is now
conducted.
8.2 Authority and Enforceability.
(a) Buyer has and at the Closing will have all requisite
power, right and authority to enter into, and to consummate the transactions
contemplated by, this Agreement. All action required under applicable law has
been taken by the board of directors of Buyer to authorize Buyer's execution of,
and the consummation of the transaction contemplated by, this Agreement. This
Agreement and each other agreement and instrument to be executed by Buyer in
connection herewith has been (or upon execution will have been) duly executed
and delivered by Buyer and constitute (or upon execution will constitute) legal,
valid and binding obligations of Buyer enforceable against Buyer in accordance
with their respective terms.
(b) All consents, approvals and authorizations and all
other requirements prescribed by any law, rule or regulation which must be
obtained or satisfied by Buyer and which are necessary for the execution and
delivery by Buyer of this Agreement and the documents to be executed and
delivered by Buyer in connection herewith and in order to
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permit the consummation of the transactions contemplated by this Agreement have
been obtained and satisfied or shall be obtained and satisfied by Closing.
8.3 No Violation or Conflict. The execution and delivery of
this Agreement, the consummation of the transactions contemplated hereby and the
fulfillment of the terms hereof will not violate or result in a breach of any of
the terms or provisions of, or constitute a default (or any event which, with
notice or the passage of time, or both, would constitute a default) under, or
conflict with or result in the termination of, or accelerate the performance
required by: (a) any agreement, indenture or other instrument to which Buyer is
a party or by which it is bound; (b) Buyer's articles of incorporation or code
of regulations; (c) any judgment, decree, order or award of any court,
governmental body or arbitrator by which Buyer is bound; or (d) any law, rule or
regulation applicable to Buyer.
9. COVENANTS.
9.1 Bankruptcy Court Approval. Promptly at the conclusion of
the auction bidding now scheduled to take place in the US Bankruptcy Court,
Southern District of Ohio, Western Division in re: Sight Resource Corporation,
et al, debtors in possession, Case No. 04-14987 on January 27, 2005, if Buyer is
the highest bidder for the Assets of Seller at the close of bidding, Seller
shall file with the Bankruptcy Court a motion (the "Sale Motion") which asks the
Bankruptcy Court to enter an order (the "Sale Order"): (i) approving this
Agreement, as modified by the highest successful bid of Buyer on the cash
portion of the purchase price as set forth in Section 4.1(a), above, as the
highest offer for the Assets and the transactions contemplated hereby in
accordance with Section 363 of the Bankruptcy Code and finding, among other
things, that Buyer is a good faith purchaser for value entitled to the
protections of Section 363(m) of the Bankruptcy Code, (ii) approving the sale
of, and authorizing Seller to transfer to Buyer, the Assets free and clear of
any and all liens (other than liens that Buyer has agreed to permit or assume
hereunder or hereafter) pursuant to Section 363(f) of the Bankruptcy Code; and
(iii) approving the assumption by Seller and assignment to Buyer of the Store
Leases and Assumed Contracts and authorizing the payment by Seller of all cure
amounts due the other parties to such agreements. The forms of the Sale Motion
and the Sale Order shall be acceptable to Seller and Buyer to their reasonable
satisfaction.
9.2 Due Diligence. From the date of submission of this
Agreement by Buyer to Seller through the Closing Date, Seller shall provide
Buyer and its representatives and agents full access at all reasonable times to
the Assets and the operation of the Business, cause Seller's representative to
furnish Buyer with such financial and operating data and other information in
Seller's possession or control with respect to the Assets and the Business as
Buyer shall from time to time reasonably request so as to permit Buyer to
conduct prior to the Closing a complete due diligence investigation of the
Assets and the Business; provided that such investigation: (a) shall be
conducted in such manner as not to interfere unreasonably with Seller's
operation of the Business; and (b) shall not affect any of the representations
and warranties of Seller hereunder.
9.3 Conduct of the Business. Subject to its obligations as a
debtor-in-possession under the Bankruptcy Code, from the date of this Agreement
through the Closing Seller shall not (except with the prior written consent of
Buyer): (a) enter into any material transaction not in the ordinary course of
the Business; (b) sell or transfer any of the Assets except for sales in the
ordinary course of the Business of inventory or immaterial amounts of other
tangible personal property not required in the Business; (c) mortgage, pledge or
encumber any of the Assets, except liens for taxes not yet due and payable, and
existing lender indebtedness; (d) amend, modify or terminate any Store Lease or
Assumed Contract; or (e) make any increase in,
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or any commitment to increase, the benefits or compensation payable to any of
its employees or agents.
9.4 Closing Conditions. Prior to the Closing, Seller shall use
its best efforts to obtain any necessary third party consents to the transfer of
the Store Leases and Assumed Contracts and otherwise to assist Buyer in the
satisfaction of all of Buyer's other conditions of Closing set forth in Section
10.2 below.
10. CONDITIONS TO CLOSING.
10.1 Conditions to Obligations of Each Party. The obligations
of Buyer and Seller to consummate the transactions contemplated hereby shall be
subject to the fulfillment, on or prior to the Closing Date, of the following
conditions:
(a) The Bankruptcy Court shall have entered the Sale
Order and the time within which to appeal the Sale Order shall have expired
without the filing of any appeal (unless waived by Buyer) or, if an appeal has
been filed, the Sale Order shall have been affirmed by the highest court to
which the Sale Order was appealed and the time within which to appeal the Sale
Order further shall have expired without the filing of any appeal (unless waived
by Buyer); and
(b) No other claim, action, suit, investigation or other
proceeding brought by any governmental agency or other party shall be pending or
threatened before any court or governmental agency which seeks to enjoin,
restrain, prohibit, restrict or limit the consummation of the transactions
contemplated by this Agreement or Buyer's unrestricted right to own the Assets
and to operate the Business after the Closing, or to recover damages from Buyer
or Seller, or other relief, in connection therewith.
10.2 Conditions to Obligations of Buyer. The obligations of
Buyer to consummate the transactions contemplated hereby shall be subject to the
fulfillment, at or prior to the Closing, of the following additional conditions:
(a) The representations and warranties of Seller
contained in this Agreement or in any other document delivered by Seller to
Buyer pursuant hereto shall have been true and correct as of the date of this
Agreement or when otherwise given and shall be true and correct on the Closing
Date as if made on the Closing Date;
(b) Each of the obligations of Seller to be performed by
it on or before the Closing Date pursuant to the terms of this Agreement shall
have been duly performed by it on or before the Closing Date; said obligations
include but are not limited to the execution of any and all documents, or the
securing of any all executed documents, required to release any all liens or
other encumbrances on the assets of Seller.
(c) All actions required to be taken by, or on the part
of, Seller to authorize the execution, delivery and performance of this
Agreement and the consummation of the transactions contemplated hereby shall
have been duly and validly taken by Seller;
(d) Between the date of this Agreement and the Closing
Date there shall not have occurred any damage or destruction of, or loss to, any
of the Assets, whether or not covered by insurance, which has had or may
reasonably be expected to have a material and adverse effect on the Business or
any prospects of the Business;
(e) All legal matters and the form and substance of all
documents to be delivered to Buyer shall have been approved by Buyer's counsel;
(f) Buyer obtaining those changes, modifications and
amendments to the Store Leases as Buyer in the exercise of its sole judgment and
discretion deems appropriate;
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(g) Buyer obtaining those changes, modifications and
amendments to the Doctor Agreements as Buyer in the exercise of its sole
judgment and discretion deems appropriate.
10.3 Conditions to Obligations of Seller. The obligations of
Seller to consummate the transactions contemplated hereby shall be subject to
the fulfillment, at or prior to the Closing Date, of the following additional
conditions:
(a) The representations and warranties of Buyer
contained in this Agreement or in any other document delivered by Buyer to
Seller pursuant hereto shall have been true and correct in all material respects
as of the date of this Agreement or when otherwise given and shall be true and
correct in all material respects on the Closing Date with the same effect as if
made on the Closing Date;
(b) Each of the obligations of Buyer to be performed by
it on or before the Closing Date pursuant to the terms of this Agreement shall
have been duly performed by it on or before the Closing Date; and
(c) All legal matters and the form and substance of all
documents to be delivered to Seller shall have been approved by Seller's
counsel.
11. POST-CLOSING ACCESS. Seller shall have the right for a period of
three years following the Closing Date to reasonable access to the Books and
Records transferred to Buyer pursuant to the terms of this Agreement for the
limited purposes of concluding its involvement in the Business after the Closing
Date and obtaining information reasonably necessary in connection with any
income or other tax issues.
12. TERMINATION; REMEDIES.
12.1 Termination Requiring Notice. This Agreement and the
transactions contemplated hereby may be terminated at any time prior to Closing
by written notice delivered by Seller to Buyer or by Buyer to Seller, as the
case may be, in the following instances:
(a) By Buyer if there has been a misrepresentation, a
breach of warranty or a failure to comply on the part of Seller with respect to
any of the representations, warranties, covenants or provisions set forth herein
(or delivered in any other document pursuant hereto).
(b) By Seller if there has been a misrepresentation, a
breach of warranty or a failure to comply with any covenant on the part of Buyer
with respect to the representations, warranties or covenants set forth herein
(or delivered in any other document pursuant hereto).
(c) At any time prior to Closing by the mutual consent
in writing of Seller and Buyer.
12.2 Termination Without Notice. This Agreement and the
transactions contemplated hereby shall automatically terminate without notice if
the Closing, pursuant to Section 6, does not occur on or before February 4,
2005; provided, however, there will be no termination of this Agreement and the
transactions contemplated thereby if Closing has not occurred because inability
of Seller to provide all deliveries of Seller required by Section 6, and
including but not limited to those deliveries contemplated by Sections 7.4 and
10.2 of this Agreement, on or before February 4, 2005, and in such event Buyer
and Seller shall endeavor with their best efforts and in good faith to complete
the Closing at the earliest possible time thereafter.
12.3 Liability in the Event of Termination; Remedies.
(a) In the event of termination of this Agreement and
the transactions contemplated hereby pursuant to Sections 12.1(a) or (b) above,
the non-breaching party may
15
avail itself of all rights, powers and remedies now or hereafter existing at law
or in equity or by statute or otherwise.
(b) In the event of termination of this Agreement and
the transactions contemplated hereby pursuant to Sections 12.1(c), 12.1(d) or
12.2 above, this Agreement shall become void and have no further effect, without
any liability on the part of any party hereto except as otherwise provided in
Section 13 of the Sale Motion.
13. MISCELLANEOUS.
13.1 Entire Agreement. This Agreement (including all Exhibits
and Schedules hereto) supersedes any and all other agreements, oral or written,
between the parties hereto with respect to the subject matter hereof and
contains the entire agreement between such parties with respect to the
transactions contemplated hereby.
13.2 Amendments. This Agreement shall not be modified or
amended except by an instrument in writing signed by or on behalf of all of the
parties hereto.
13.3 Successors and Assigns. This Agreement and all of the
provisions hereof shall be binding upon and inure to the benefit of the parties
hereto and their respective successors and permitted transferees and assignees.
13.4 Assignment. Neither this Agreement nor any interest
herein may directly or indirectly be transferred or assigned by any party, in
whole or in part, without the written consent of the other parties except that
Buyer may assign its rights and obligations under this Agreement to an
affiliated corporation or limited liability company.
13.5 Notices. All notices, requests, demands, and other
communications which may or are required to be delivered hereunder shall be in
writing and shall be delivered by hand delivery, by facsimile transmission
(receipt confirmed), by express mail service, or by registered or certified
mail, postage prepaid, at or to the following addresses:
If to Seller:
Sight Resource Corporation
c/o Xxxxx X. Xxxxxxxx, Esq.
Xxxxxxxx Xxxx LLP
Suite 1400
000 Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxx 00000
Fax: (000) 000-0000
If to Buyer:
Vision Point I and II, LLC's.
c/o Xxxx Xxxxxxxxx
000 Xxxx Xxxxx Xxxx
Xxxxxxxxxx, XX 00000
Fax: (000).000.0000
with a copy to:
Xxxxx X. Xxxxxx, Esq.
Xxxxx X. Xxxxxx, Professional Corporation
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00 Xxxx 00xx Xxxxxx, Xxxxx X
Xxxxxxxxxxxx, Xxxxxxx 00000
Fax: (000) 000-0000
or to such other address or to such other person as any party shall have last
designated by written notice to the other parties. Notices, requests, demands,
and other communications so delivered shall be deemed given upon receipt.
13.6 Waiver. If any party expressly waives in writing an
unsatisfied condition, representation, warranty, undertaking, covenant or
agreement (or portion thereof) set forth herein, the waiving party shall
thereafter be barred from recovering, and thereafter shall not seek to recover,
any damages, claims, losses, liabilities or expenses, including, without
limitation, legal and other expenses, from the other parties in respect of the
matter or matters so waived.
13.7 Severability. If any term or provision of this Agreement
or any application thereof shall be invalid or unenforceable, the remainder of
this Agreement and any other application of such term or provision shall not be
affected thereby.
13.8 No Third Party Beneficiary. This Agreement is for the
benefit of, and may be enforced only by, Seller and Buyer, and their respective
successors and permitted transferees and assignees, and is not for the benefit
of, and may not be enforced by, any third party.
13.9 Expenses. Subject to Section 4.4 above, each party hereto
shall bear and pay all costs and expenses incurred by it in connection with the
transactions contemplated by this Agreement including, without limitation, fees,
costs and expenses of its own financial consultants, accountants and counsel.
13.10 Buyer is Qualified Bidder. Seller agrees that Buyer is a
Qualified Bidder as that term is defined in the Notice of (1) Proposed Sale of
Certain Assets (Eyeglass Emporium) Free and Clear of Liens and Assumption and
Assignment of Certain Related Executory Contracts; (2) Bid Procedures; and (3)
Hearing Date and Objection Deadline, which notice was previously issued in the
bankruptcy proceeding in the US Bankruptcy Court, Southern District of Ohio,
Western Division in re: Sight Resource Corporation, et al, debtors in
possession, Case No. 04-14987.
13.11 Deposit and Related Matters. Buyer has deposited with
Seller $50,000 in readily available funds to be applied against the cash portion
of the purchase price in the event Buyer is the successful bidder at the
bankruptcy auction. If Buyer is not the successful bidder, the $50,000 deposit
shall be returned by Seller to Buyer within 2 business days of the closing of
the transaction contemplated by the agreement between Seller and the successful
bidder at the bankruptcy auction. In the event the successful bidder at the
bankruptcy auction (other than Buyer herein) does not close the sale pursuant to
Sections 6.1 and 12.2 of the Asset Purchase Agreement between Seller and RX
Optical (or the equivalent provisions of any other applicable Asset Purchase
Agreement), and if Buyer herein was the next highest bidder at auction, then
Buyer will consummate the sale contemplated by this Agreement on the basis of
the Buyer's last bankruptcy auction bid, and the $50,000 deposit shall be
applied against the cash portion of the purchase price.
13.12 Applicable Law. This Agreement shall be governed by and
construed and enforced in accordance with, the laws of the State of Indiana.
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13.13 Counterparts. 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.
IN WITNESS WHEREOF, the parties hereto have executed this Asset
Purchase Agreement as of the date first hereinabove set forth. SELLER: BUYER:
EYEGLASS EMPORIUM, INC. VISION POINT I AND II LLC'S
By: /s/ Xxxx X. Xxxxxx By: /s/ Xxxx Xxxxxxxxx
-------------------- ------------------
Title: President Title: Member
18
EYEGLASS EMPORIUM, INC. - VISION POINT I AND II LLC'S
ASSET PURCHASE AGREEMENT
EXHIBIT A
19
EYEGLASS EMPORIUM, INC. - VISION POINT I AND II LLC'S
ASSET PURCHASE AGREEMENT
EXHIBIT B
STORE LEASES
1. Xxxx Xxxxx
X.X. 00 000 X. 00xx Xxxxxx
Xxxxxxxxxxxx, Xxxxxxx
2. Portage Crossings
0000 X.X. 0, Xxxxx 0
Xxxxxxx, Xxxxxxx
3. Valpraiso Market Place
LaPorte Avenue and Shilhauy
Valpraiso, Indiana
4. Cross Roads
0000 X.X. 00
Xxxxxxxxxxx, Xxxxxxx
5. North Ridge Center
0000 X. 00xx Xxxxxx
Xxxxxx, Xxxxxxx
6. Pine Lakes Center
00 Xxxx Xxxx Xxxxxx
Xxxxxxx, Xxxxxxx
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EYEGLASS EMPORIUM, INC. - VISION POINT I AND II LLC'S
ASSET PURCHASE AGREEMENT
EXHIBIT C
ASSUMED CONTRACTS
May 28, 2004 Doctor Agreement with Xxxxxx X. Xxxxxx, O.D.
October 10, 2003 Doctor Agreement with Xxxx Xxxxx, O.D.
EYEGLASS EMPORIUM, INC. - VISION POINT I AND II LLC'S
ASSET PURCHASE AGREEMENT
SCHEDULE 7.6
Employees on Leave of Absence, COBRA or eligible for COBRA
1) Employees on leave of absence- none
2) Ex-employees on COBRA- none
3) Ex- employees eligible for COBRA: - none
EYEGLASS EMPORIUM, INC. - VISION POINT I AND II LLC'S
ASSET PURCHASE AGREEMENT
SCHEDULE 7.7
Employee Benefit Plans
1) Sight Resource Corporation 401(k) Plan (unaudited)
2) Dental Insurance Plan
3) Health Insurance Plan
4) Basic term life insurance
5) Short Term Disability
6) Long Term Disability
Buyer shall have no liability for the continuation of these plans.
EYEGLASS EMPORIUM, INC. - VISION POINT I AND II LLC'S
ASSET PURCHASE AGREEMENT
SCHEDULE 7.8
Tax Payment Exceptions
Eyeglass Emporium Inc. has received notice of unpaid payroll taxes for quarter
ending September 30, 2001. Buyer does not assume this liability.
