EXHIBIT 10.57
ASSET PURCHASE AGREEMENT
ASSET PURCHASE AGREEMENT
THIS ASSET PURCHASE AGREEMENT (this "Agreement") is entered into on
April , 2005 by and between CAMBRIDGE EYE ASSOCIATES, INC., a Delaware
corporation, and XXXXXXX VISION WORLD, a Delaware corporation (each a "Seller"
and together the "Sellers"), SIGHT RESOURCE CORPORATION, a Delaware corporation
("SRC"), and XXXXX VISION, INC. ("Buyer") as follows:
RECITALS:
A. WHEREAS, Sellers are in the business of marketing and selling to the
general public at 25 retail eye care centers in the Commonwealth of
Massachusetts, the State of New Hampshire and the State of Rhode Island (the
"Centers") eyeglass frames and lenses, contact lenses and related eyewear
accessories (the "Business"); and
B. WHEREAS, Sellers and Buyer have agreed, on the terms and subject to
the conditions of this Agreement, that Sellers shall sell to Buyer, and Buyer
shall purchase from Sellers, substantially all of the assets owned and used by
Sellers in the conduct of the Business; and
C. WHEREAS, on June 24, 2004 Sellers filed in the United States
Bankruptcy Court for the Southern District of Ohio (the "Bankruptcy Court")
voluntary petitions for relief under Title 11 of Chapter 11 of the United States
Code (the "Bankruptcy Code") and Sellers 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 Sellers 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. Subject to approval of the Bankruptcy
Court and the entry of the Sale Order (as defined in Section 8.1
below), on the terms and subject to the conditions of this Agreement,
at the Closing (as defined in Section 5 below) Buyer shall purchase
from Sellers and Sellers shall sell, transfer, convey and deliver to
Buyer all of Sellers' direct and indirect rights, titles and interests
in and to the following tangible and intangible property owned, leased
or otherwise used by Sellers 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 Sellers or SRC and
located in or at the Centers together with all contact lens and other inventory
located in Cincinnati or any other location or on order as of the Closing Date;
(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) Accounts Receivable. All of Sellers' accounts receivable
(including, without limitation, receivables written off by Sellers) other than
any inter-company accounts;
(d) Leases. All real property leases and subleases for the
Centers identified on the attached Exhibit B (the "Store Leases") together with
all security deposits held by lessors or landlords or the Sellers or SRC as
sublessors in accordance with the provisions of each Store Lease;
(e) Contracts. All of Sellers' managed care contracts; written
agreements with professional corporations employing doctors listed on the
attached Exhibit C and stock restriction and pledge agreements relating to such
professional corporations (collectively, the "PC Agreements"); and other written
or oral customer contracts, agreements and commitments (including customer
deposits) (all items in this paragraph (e) collectively, the "Assumed
Contracts");
(f) Intellectual Property. The names "Cambridge Eye
Associates" and "Xxxxxxx Vision World" and all related service marks, logos and
other proprietary rights and intellectual property under, by and through which
Sellers conduct the Business including, without limitation: (i) all signs,
kiosks and other advertising media; (ii) all stocks of business forms and
promotional literature that contains or makes reference to Cambridge Eye
Associates or Xxxxxxx Vision World; (iii) all presently existing telephone
numbers for each of the Centers to the extent such numbers are transferable;
(iv) the "Sight-Care" trademark and all related material; and (v) all government
permits and licenses relating to the operation of the Businesses to the extent
assignable without the consent of any party (the "Intellectual Property");
(g) Books and Records. All books and records including,
without limitation, Sellers' 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 Sellers to conduct the Business, including, without limitation, all
data and information in the Sellers' POS Delta System and any and all other
records and information (the "Books and Records");
(h) Prepaid Expenses. All prepaid expenses including, without
limitation, prepaid insurance premiums and advertising costs, except for those
prepaid expenses listed on the attached Exhibit D; and
(i) Computers. All computer hardware, all computer software
and software licenses owned by Sellers or SRC to the extent transferable to
Buyer, and all communications equipment and software located at any of the
Centers and at 0000 Xxxxx Xxxxxx, Xxxxxxxxxx, Xxxx other than the main Delta
Systems server and the following items to be
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selected by Sellers: two desktop PCs; two Toshiba laptop PCs, two printers and
one fax machine.
1.2 "As Is" Transaction. Buyer hereby acknowledges and agrees
that, except as otherwise expressly provided in this Agreement, Sellers
make 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
Sellers, and Sellers shall retain all of their respective rights, titles and
interests in and to: (a) except for security deposits referred to in Section
1.1(d), all cash, cash equivalents, bank accounts as of the Closing Date and
securities of Sellers; (b) all causes of action and claims which Sellers may
have under Sections 506, 510, 542 through 551 inclusive and 553 of the
Bankruptcy Code; and (c) all assets not specifically enumerated in Section 1
above.
3. RETENTION AND ASSUMPTION OF LIABILITIES.
3.1 Liabilities Retained by Sellers. Subject to Section 3.2
below, and except as otherwise expressly provided in this Agreement,
Sellers shall remain solely and entirely responsible for their 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 Sellers 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 Sellers: (a) under the
Store Leases and the Assumed Contracts relating to periods after the
Closing Date (as defined in Section 5 below); and (b) to Sellers'
current employees only for post-petition 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 Sellers' Employees. Buyer shall have the right, but not
the obligation, to employ any present employee of Sellers or SRC. 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 Sellers' or
SRC's employee benefit plans, any multi-employer pension plan to which
Sellers or SRC may contribute or, except as provided in Section 3.2
above, any
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other liability or employee fringe benefit of Sellers or SRC which is due or
unsatisfied as of the Closing.
4. PURCHASE PRICE.
4.1 Amount. The purchase price for the Assets shall be:
(a) $1,850,000 (the "Purchase Price") [WHICH AMOUNT WAS INCREASED TO
$6,500,000 DURING BANKRUPTCY COURT AUCTION PROCEEDINGS], plus (b) the
Assumed Liabilities.
4.2 Reporting. The purchase price for the Assets shall be
allocated for federal income tax purposes as shall be agreed between
the Buyer and the Sellers, 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. Sellers 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 PC Agreements, all lease and rental charges (including, without
limitation, rent and other amounts payable by Sellers under the Store
Leases), and all monthly utility charges shall be prorated between
Sellers and Buyer as of the Closing Date, with Sellers 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 Sellers 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 Sellers 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. CLOSING. The closing of the transactions contemplated by this
Agreement (the "Closing") shall take place within fifteen business days of the
date the Court enters the Sale Order or at such other date and time to which the
parties may agree (the "Closing Date"). At the Closing:
5.1 Buyer's Payments and Deliveries. Buyer shall deliver to
Sellers:
(a) the Purchase Price, plus or minus any adjustments provided
for in this Agreement, in immediately available funds by wire transfer to a bank
account designated by Sellers;
(b) [Reserved];
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(c) one or more agreements effecting the assumption by Buyer
of the Assumed Liabilities;
(d) a certified copy of the consent of the board of directors
of Buyer authorizing Buyer to enter into and perform its obligations under this
Agreement; and
(e) such other documents, instruments and deliveries as Seller
reasonably may request.
5.2 Sellers' Deliveries. Sellers shall deliver to Buyer:
(a) a xxxx of sale conveying all of the Assets to Buyer;
(b)extensions, for a period of not less than six (6) months,
of the Management Agreements between Optometric Care, Inc. and Xxxxxxx Vision
World, Inc. and between Optometric Providers, Inc. and CEA Acquisition Corp. on
the same terms as currently in effect or as otherwise acceptable to Buyer;
(c) stock certificates representing any shares of stock
pledged to Sellers or SRC, together with duly executed stock powers;
(d) one or more agreements effecting Sellers' assignment to
Buyer of the Store Leases and Assumed Contracts;
(e) a certified copy of the consent of the boards of directors
of Sellers authorizing and directing Sellers to enter into and perform their
obligations under this Agreement;
(f) the Non Competition Agreement (as defined in Section 11
below) executed by Sellers and SRC; and
(g) such other documents, instruments and deliveries as Buyer
reasonably may request.
The purchase and sale of the Assets shall be effective at the close of business
for the Centers on the Closing Date (the "Effective Time"). 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 Sellers shall be for Sellers' account and risk and Sellers shall
bear all risk of loss.
6. REPRESENTATIONS AND WARRANTIES OF SELLERS. If and only to the extent
that under applicable federal, state or local law the breach of any of the
following 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 Sellers (other than the Assumed Liabilities), and subject to their
obligations as debtors-in-possession under the Bankruptcy Code, Sellers hereby
jointly and severally represent and warrant to and covenant with Buyer that:
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6.1 Organization. Each 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 its Assets. Subject to its
obligations as a debtor-in-possession under the Bankruptcy Code, each
Seller has full authority and power to carry on the Business as it is
now conducted.
6.2 Authority and Enforceability.
(a) Each 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 each
Seller to authorize each 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 each Seller in connection herewith
have been (or upon execution will have been) duly executed and delivered by each
Seller and constitute (or upon execution will constitute) legal, valid and
binding obligations of each Seller enforceable against each 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 each Seller and which are necessary for the execution and delivery
by each Seller of this Agreement and the documents to be executed and delivered
by each 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.
6.3 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 either
Seller is a party or by which either Seller or the Assets are bound
except the loan agreements between Sellers and CadleRock Joint Venture,
L.P. (and upon entry of the Sale Order (as defined in Section 9.1(a)
below), any such breach, default or conflict under such loan agreements
shall be cured or waived and the rights of CadleRock Joint Venture,
L.P. shall be solely to receive proceeds of the sale of the Assets);
(b) each Seller's Articles of Incorporation; (c) any judgment, decree,
order or award of any court, governmental body or arbitrator by which
either Seller or the Assets are bound; or (d) any law, rule or
regulation applicable to Sellers or the Assets.
6.4 Title to Assets. Each Seller has good title to, is the
sole lawful owner of, and has the right to use all of its 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.
6.5 Store Leases and Assumed Contracts. Sellers have made
all required post-petition payments under the Store Leases and the
Assumed Contracts and
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otherwise are in substantial compliance with their post-petition
obligations thereunder. Upon the entry of the Sale Order, Sellers shall
cure all defaults related to the Store Leases and Assumed Contracts
pursuant to Section 365 of the Bankruptcy Code so as to enable Sellers
to assume and to assign to Buyer at the Closing the Store Leases and
Assumed Contracts.
6.6 Employment Matters.
(a) There are: (i) no pending or, to the knowledge of Sellers,
threatened claims by any employee of either Seller (each, an "Employee") or any
person who in the past has worked for either Seller (each, a "Former Employee")
against either Seller, other than for compensation and benefits due in the
ordinary course of employment; and (ii) no pending or, to the knowledge of
Sellers, threatened claims against either 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, Sellers are and
after the Closing shall remain responsible for all Employee and Former Employee
claims against Sellers arising out of events or transactions occurring prior to
Closing.
(b) Schedule 6.6 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 shall have no liability with
respect to the continuation of COBRA benefits to Sellers' Employees or Former
Employees after Closing.
6.7 Employee Benefit Plans. Schedule 6.7 hereto lists all
qualified and non-qualified plans, programs, agreements, commitments
and arrangements maintained by or on behalf of Sellers that provide
benefits or compensation to, or for the benefit of, any Employee or
Former Employee (the "Plans"). To the knowledge of Sellers, 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 6.7 shall be construed to create an
obligation on the part of the Buyer to assume or succeed to any
obligation of Sellers under Sellers' Plans or to continue such Plans
for any of those employees of Sellers that Buyer elects to employ in
accordance with Section 3.3 hereof, and Sellers are and after Closing
shall remain responsible for continuation or termination of such Plans
as they shall elect.
6.8 Taxes. Except as disclosed on Schedule 6.8 hereto, to the
knowledge of Sellers they have collected or withheld, and have 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. Sellers are
and after the Closing shall remain responsible for all federal, state
and local taxes, employment taxes and workers compensation premiums
attributable to Sellers' ownership of the Assets and operation of the
Business prior to the Closing.
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6.9 Litigation. Except as disclosed on Schedule 6.9, to the
knowledge of Sellers there is no action, suit, proceeding or
investigation to which either Seller or any Center 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 Sellers, there is
no action, suit, proceeding or investigation threatened against either
Seller and, to the knowledge of Sellers, there is no basis for any such
action, suit, proceeding or investigation.
6.10 Compliance with Law. To the knowledge of Sellers, they
are 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 Sellers: (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 Sellers to own the Assets or to operate the Business.
7. REPRESENTATIONS AND WARRANTIES OF BUYER. Buyer represents and
warrants to and covenants with Sellers that:
7.1 Organization. Buyer is a corporation duly organized,
validly existing and in good standing under the laws of the State of
New York and is or prior to the Closing will be qualified to do
business in the Commonwealth of Massachusetts and the States of New
Hampshire and Rhode Island. Buyer has full power and authority to carry
on its business as it is now conducted.
7.2 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 permit the consummation of the
transactions contemplated by this Agreement have been obtained and satisfied or
shall be obtained and satisfied by 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 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 ; (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.
8. COVENANTS.
8.1 Bankruptcy Court Approval. [Reserved]
8.2 Due Diligence. From the date of this Agreement through the
Closing Date, Sellers and SRC shall provide Buyer and its
representatives and agents full access at all reasonable times to the
Assets and the operation of the Business, cause Sellers' and SRC's
representatives to furnish Buyer with such financial and operating data
and other information in Sellers' and SRC'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 Sellers' operation of
the Business; and (b) shall not affect any of the representations and
warranties of Sellers hereunder.
8.3 Conduct of the Business. Subject to their obligations as
debtors-in-possession under the Bankruptcy Code, from the date of this
Agreement through the Closing Sellers and SRC 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, or any commitment to increase, the benefits or compensation payable
to any of its employees or agents.
8.4 Closing Conditions. Prior to the Closing, Sellers and SRC
shall use their 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 9.2 below.
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9. CONDITIONS TO CLOSING.
9.1 Conditions to Obligations of Each Party. The obligations
of Buyer and Sellers 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 an order (the
"Sale Order") in form and substance to the reasonable satisfaction of Sellers
and Buyer, which shall, among other things, (i) approve this Agreement as the
highest and best offer for the Assets and the transactions contemplated hereby
in accordance with Section 363 of the Bankruptcy Code and find, 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) approve the sale of,
and authorize Sellers and SRC 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) approve the assumption by Sellers and SRC and the assignment to Buyer of
the Store Leases and Assumed Contracts and authorize the payment and performance
by Sellers and SRC of all cures due the other parties to such Store Leases and
Assumed Contracts.
(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 Sellers, or other relief, in connection therewith.
9.2 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 Sellers contained in
this Agreement or in any other document delivered by Sellers 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 Sellers to be performed by them
on or before the Closing Date pursuant to the terms of this Agreement shall have
been duly performed by them on or before the Closing Date;
(c) All actions required to be taken by, or on the part of,
Sellers 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 Sellers;
(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; and
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(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.
9.3 Conditions to Obligations of Sellers. The obligations of
Sellers 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 Sellers 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 Sellers shall have been approved by Sellers'
counsel.
10. POST-CLOSING ACCESS. Sellers 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 (including,
without limitation, remote access to the Microsoft Exchange Server and the
Payroll Server) 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.
11. NON-COMPETITION. Sellers and SRC shall enter into a non-competition
agreement prohibiting the ownership, operation, or participation in any manner
by Sellers, SRC and/or other subsidiaries or affiliates of SRC in any retail eye
glass store in competition with Buyer in the Commonwealth of Massachusetts, the
State of New Hampshire and the State of Rhode Island for a three (3) year period
commencing on the Effective Time (the "Non-Competition Agreement'). "Affiliate"
as used in this Section 11 means any entity who controls, is controlled by, or
is under common control with Sellers or SRC.
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 Sellers to Buyer or by Buyer to
Sellers, 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 Sellers with respect to any of
the representations, warranties, covenants or provisions set forth herein (or
delivered in any other document pursuant hereto).
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(b) By Sellers 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) [Reserved]
(d) At any time prior to Closing by the mutual consent in
writing of Sellers and Buyer.
12.2 Termination Without Notice. This Agreement and the
transactions contemplated hereby shall automatically terminate without
notice if the Closing does not occur on or before April 22, 2005.
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 Section 12.1(a) or (b) above, the
non-breaching party may 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 Section 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 the Sale Order.
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
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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:
Xxxxxx X. Xxxx
000 Xxxxxx Xxxxxx 0X
Xxxx Xxxx, Xxxxxxxxxxxx 00000
Fax: (000) 000-0000
with a copy to:
Xxxxxx X. Xxxxxxx, Xx.
Highmark Inc.
Fifth Avenue Place
000 Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxxx, XX 00000-0000
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, Sellers and Buyer, and their
respective successors and
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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 Applicable Law. This Agreement shall be governed by, and
construed and enforced in accordance with, the laws of the State of
Delaware.
13.11 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.
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IN WITNESS WHEREOF, the parties hereto have executed this Asset
Purchase Agreement as of the date first hereinabove set forth.
SELLERS: BUYER:
CAMBRIDGE EYE ASSOCIATES, INC. XXXXX VISION, INC.
By: By:
-------------------------------- ----------------------------------
Title: Title:
----------------------------- -------------------------------
XXXXXXX VISION WORLD, INC. SIGHT RESOURCE CORPORATION
By: By:
-------------------------------- ----------------------------------
Title: Title:
----------------------------- -------------------------------
CAMBRIDGE EYE ASSOCIATES, INC./XXXXXXX VISION WORLD, INC.
ASSET PURCHASE AGREEMENT
EXHIBIT A
FIXED ASSET LISTS
CAMBRIDGE EYE ASSOCIATES, INC./XXXXXXX VISION WORLD, INC.
ASSET PURCHASE AGREEMENT
EXHIBIT B
STORE LEASES
Store#
1 Vision World 0000 XXXXXXX XXX. XXXXXXXX XX 00000
2 Vision World 0000 XXXXXXXXX XXX. X. XXXXXXXXXX XX 00000
4 Vision World 0000 XXXXXXX XXXXXX XXX. X. XXXXXXXXXX XX 00000
5 Vision World 000 XXXX XXXX XXXX XXXXXXXXXX XX 00000
6 Vision World 000 XXXXXXXXX XXXX XXXXXXXXX XX 00000
7 Vision World 000 XXXXXX XXX. XXXXXXXX XX 00000
000 Xxxxxxxxx Xxx 0000 XXXXXXXXXXXXX XXX. XXXXXXXXX XX 00000
000 Xxxxxxxxx Xxx 000-0/0 XXXXXXXX XXXXXX XXXXXXXX XX 00000
000 Xxxxxxxxx Xxx 000 Xxxxxxxx Xxxxxxx XX
104 Cambridge Eye 000 XXXXXXXXX XX.XXXXXXXXXX XX 00000
000 Xxxxxxxxx Xxx 000 XXXXXXXX XX. XXXXXXX XX 00000
000 Xxxxxxxxx Xxx 000 Xxxxxxx Xxxxxx Xxxxxxxxx XX 00000
000 Xxxxxxxxx Xxx 000 XXXXX XXXX X. XXXXXXXXX XX 00000
000 Xxxxxxxxx Xxx 000 XXXXXX XXXX XXXXXXXXX XX 00000
000 Xxxxxxxxx Xxx 000 XXXXXXXX XXXXXX XXXXXX XX 00000
000 Xxxxxxxxx Xxx 000 XXXXXXXX XXXX XXXXXXX XX 00000
000 Xxxxxxxxx Xxx 0000 Xxxxxx Xxxxxx XXXXXXXXX XX 00000
113 Cambridge Eye XXX XXXXXXXX XXX. XXXXXX XX 00000
STE 3B
000 Xxxxxxxxx Xxx XX. 000 XXXXXXXX XX 00000
STE. 160
116 Cambridge Eye 000 Xxxxxxxxxx XXXX Xxxxxx XX 00000
117 Cambridge Eye 0 Xx. Xxxxxx Xx Xxxxxxxxx XX 00000
Suite 2
118 Cambridge Eye 000 Xxxxx Xxxxxxxx Xxxxx XX 00000
000 Xxxxxxxxx Xxx 000 XXXXXXXX XXXXXXX XX. XXXXXXXX XX 00000
000 Xxxxxxxxx Xxx 000 XXXXX XXXXXX XXXXXX XX 00000
000 Xxxxxxxxx Xxx 00 XXXXX XXXXXXX XX. XXXXXXXX XX 00000
Subleases:
Sublease dated March 1, 1998 between Cambridge Eye Doctors and Little Tibet for
premises located at 0000 Xxxxxxxxxxxxx Xxx., Xxxxxxxxx, Xx. Note rent being paid
by tenant is not in agreement with lease terms. Verbal agreement is in place.
Sublease dated January 12, 1999 between Sight Resource Corporation and
Enterprise Rent-A-Car Company of Rhode Island for premises located at 000 Xxxxx
Xxxx, Xxxxx Xxxxxxxxx, Xx.
Sublease dated March 19, 1999 between Sight Resource Corporation and New England
Mobile Communications for premises located at 000 Xxxxx Xxxx, Xxxxx Xxxxxxxxx,
Xx.
CAMBRIDGE EYE ASSOCIATES, INC./XXXXXXX VISION WORLD, INC.
ASSET PURCHASE AGREEMENT
EXHIBIT C
ASSUMED CONTRACTS
Eyeware Discount Program Agreement with Harvard Pilgrim Health Care, Inc.
Vision Care Agreement with Commonwealth of Massachusetts NAGE Health and Welfare
Trust Fund
Management Agreement between Optometric Care, Inc. and Xxxxxxx Vision World,
Inc.
Management Agreement between Optometric Providers, Inc. and CEA Acquisition
Corp.
Stock Restrictions and Pledge Agreement by and among Optometric Care, Inc.,
Xxxxxxx X. Xxxxxxx, O.D. and Xxxxxxx Vision World, Inc.
Agreement with Xx. Xxxxxxx Xxxxxxx (OPI)
Agreement with Dr. Xxxxx Xxxx (OPI)
Agreement with Xx. Xxxxxxx Xxxxxx (OPI)
Agreement with Xx. Xxxxxx Xxxxxxx (OPI)
Agreement with Xx. Xxxxx Xxxxx (OPI)
Agreement with Xx. Xxxxx Xxxxxxx (OPI)
Agreement with Xx. Xxxxxxxxxxx Xxxxxx (OPI)
Agreement with Dr. M. Xxxxxx Xxxxxxx (OPI)
Agreement with Dr. Xxxxx Xxxxx (OPI)
Agreement with Xx. Xxxxxx Rezelbach (OPI)
Agreement with Xx. Xxxxxxx Xxxxxxxxxxx (OPI)
Agreement with Xx. Xxxxxxx Xxx (OCI)
CAMBRIDGE EYE ASSOCIATES, INC./XXXXXXX VISION WORLD, INC.
ASSET PURCHASE AGREEMENT
EXHIBIT D
EXCLUDED PREPAID EXPENSES
All trade vendor prepayments
CAMBRIDGE EYE ASSOCIATES, INC./XXXXXXX VISION WORLD, INC.
ASSET PURCHASE AGREEMENT
SCHEDULE 6.6
EMPLOYEES ON LEAVE OF ABSENCE, COBRA, ELIGIBLE FOR COBRA OR INVOLVED WITH
WORKERS COMPENSATION CLAIM AND OTHER CLAIMS:
Xxxxx Xxxxx-Xxxxx - Vision World Workers Comp (Jan. 3rd slip and fall- still
working)
Xxxxxx Xxxxxxx- Cambridge Eye Has filed for Short Term disability to begin May
6, 2005 and return to work July 5, 2005 for maternity leave.
Xx. Xxxxxxx Xxxxxxx- Head of both OD professional corporations. He serves in an
administrative capacity only, does not actively practice optometry, and is not
on the payroll. He is a participant on the OD group health Dental Plan and pays
employee rates.
The State of New Hampshire notified Cambridge Eye Doctor in July 2004 that its
store located at 000 Xxxxxxxx, Xxxxx, XX. was in violation of State pay
requirements because pay checks were being issued bi-weekly without permission
from the State.
CAMBRIDGE EYE ASSOCIATES, INC./XXXXXXX VISION WORLD, INC.
ASSET PURCHASE AGREEMENT
SCHEDULE 6.7
Employee Benefit Plans
1) Sight Resource Corporation 401(k) Plan (unaudited)
2) Dental Insurance Plan (Met Life)
3) Health Insurance Plan (GISC- associates, UHC- ODs)
4) Basic term life insurance (Met Life)
5) Short Term Disability (Met Life)
6) Long Term Disability (Met Life)
CAMBRIDGE EYE ASSOCIATES, INC./XXXXXXX VISION WORLD, INC.
ASSET PURCHASE AGREEMENT
SCHEDULE 6.8
Taxes
Sellers have not filed Federal, State or local taxes since 2001
CAMBRIDGE EYE ASSOCIATES, INC./XXXXXXX VISION WORLD, INC.
ASSET PURCHASE AREEMENT
SCHEDULE 6.9
INTELLECTUAL PROPERTY LITIGATION
Vision World LLC v. Sight Resource Corporation, Case No. 1:05CV106 (S.D. Ohio)
