EXHIBIT 10.54
ASSET PURCHASE AGREEMENT
ASSET PURCHASE AGREEMENT
THIS ASSET PURCHASE AGREEMENT (this "Agreement") is entered into on
December 31, 2004 by and between EYEGLASS EMPORIUM, INC., an Indiana
corporation ("Seller") (a wholly owned subsidiary of Sight Resource Corporation,
a Delaware corporation ("SRC")), RX OPTICAL LABORATORIES, INC., a Michigan
corporation qualified to do business in the State of Indiana ("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. Subject to approval of the Bankruptcy Court and
the entry of the Sale Order (as defined in Section 9.1 below), on the terms and
subject to the conditions of this Agreement, at the Closing (as defined in
Section 6 below) Buyer shall purchase from Seller and Seller shall sell,
transfer, convey and deliver to Buyer 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 contract assumed by it in accordance with
Section 3 below;. (c) all causes of action and claims
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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) 537,000,
which shall be allocated as follows:
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
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$ 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
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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 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 sum of $537,000, 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.
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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 Buyer's assumption of the
Assumed Liabilities;
(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"). 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 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 Indiana 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
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permit the consummation of the transactions contemplated by this Agreement have
been obtained and satisfied or will be obtained and satisfied by the Closing.
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 substantial 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 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.
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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 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 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 a corporation duly organized, validly
existing and in good standing under the laws of the State of Michigan 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.
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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 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.
(a) Promptly after the execution of this Agreement Seller
shall file with the Bankruptcy Court a motion (the "Sale Motion") which asks the
Bankruptcy Court to enter, unless Seller receives a higher and better offer for
the Assets in accordance with Section 9.1(b) below, an order (the "Sale Order"):
(i) approving 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 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.
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(b) The Sale Motion also shall ask the Bankruptcy Court to
schedule a hearing on the Sale Motion on the first available date and to order
that prior to or at such hearing any person or entity (including Buyer) may make
a higher and better offer for the Assets provided: (i) any such offer as
determined by Seller is on substantially the same terms and subject to the same
conditions set forth in this Agreement; (ii) any such person or entity (other
than Buyer) provides Seller a $50,000 cash deposit which shall be applied as a
credit against the purchase price if such person or entity is the successful
bidder; (iii) any such initial offer is at least $25,000 more than the cash
portion of the purchase price set forth in Section 4.1(a) above; and (iv) any
such subsequent offer is at least $10,000 more than the immediately preceding
offer; and (v) any such person or entity provides evidence satisfactory to
Seller verifying that the offeror has the ability to provide the full amount of
the purchase price to Seller in immediately available funds at the Closing.
(c) The Sale Motion also shall ask that the Bankruptcy Court
order the Seller to reimburse Buyer for the actual out of pocket costs and
expenses incurred by Buyer with financial consultants, accountants and legal
counsel in relation to the transaction set forth herein if any person or entity
other than Buyer is the successful bidder. Reimbursement shall be limited to the
lesser of Buyer's actual expenses or $25,000.00.
9.2 Due Diligence. From the date of this Agreement 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, 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.
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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;
(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) By Seller if SRC receives prior to the Closing a bona fide
offer to purchase all or substantially all of the assets of SRC and its
affiliates which offer, taken as a whole, SRC determines in its sole discretion
to be in the best interests of SRC and its creditors.
(d) At any time prior to Closing by the mutual consent in
writing of Seller and Buyer.
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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 February 4, 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 Sections 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 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
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If to Buyer:
RX Optical Laboratories, Inc.
c/o Xxxxxx Xxxxx
0000 Xxxxx Xxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxx 00000
Fax: (000) 000-0000
with a copy to:
Xxxxxxx X. Xxxxxx, Esq.
Xxxxxx & Xxxxxx
Suite 800
Comerica Building
000 Xxxxx Xxxx Xxxxxx
Xxxxxxxx, Xxxxxxxx 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 Applicable Law. This Agreement shall be governed by and
construed and enforced in accordance with, the laws of the State of Indiana.
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.
SELLER: BUYER:
EYEGLASS EMPORIUM, INC. RX OPTICAL LABORATORIES, INC.
By: _________________________________ By: ___________________________
Title: ______________________________ Title: ________________________
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XXXXXXXX XXXXXXXX, INC. - RX OPTICAL LABORATORIES, INC.
ASSET PURCHASE AGREEMENT
EXHIBIT A
[OMITTED]
EYEGLASS EMPORIUM, INC. - RX OPTICAL LABORATORIES, INC.
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
EYEGLASS EMPORIUM, INC. - RX OPTICAL LABORATORIES, INC.
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. - RX OPTICAL LABORATORIES, INC.
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. - RX OPTICAL LABORATORIES, INC.
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. - RX OPTICAL LABORATORIES, INC.
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.
