EXECUTION COPY -Revision #1
COMMON STOCK PURCHASE AGREEMENT
by and among
SIGHT RESOURCE CORPORATION
and
THE PERSONS LISTED ON EXHIBIT A HERETO
Dated as of December 30, 2002
TABLE OF CONTENTS
ARTICLE I DEFINITIONS........................................................................2
Section 1.01 Definitions..............................................................2
ARTICLE II PURCHASE AND SALE OF THE SHARES...................................................4
Section 2.01 Purchase And Sale Of The Shares..........................................4
Section 2.02 Acknowledgement by Purchasers............................................4
ARTICLE III CONDITIONS TO CLOSING............................................................4
Section 3.01 Mutual Conditions To Closing.............................................5
Section 3.02 Conditions To Purchaser's Obligations....................................6
Section 3.03 Conditions To The Company's Obligations..................................8
ARTICLE IV REPRESENTATIONS AND WARRANTIES....................................................9
Section 4.01 Representations And Warranties Of The Company............................9
Section 4.02 Representations And Warranties Of The Purchasers........................13
ARTICLE V COVENANTS.........................................................................14
Section 5.01 Board of Directors......................................................14
Section 5.02 Transaction Documents...................................................14
Section 5.03 Cooperation.............................................................15
Section 5.04 Dividend Shares.........................................................15
Section 5.05 Conversion Shares.......................................................15
Section 5.08 Third Party Consents; Regulatory Matters................................15
Section 5.09 Cancellation of Class I (Mirror) and Class II Warrants Held by Carlyle...15
ARTICLE VI LIMITATIONS AND RESTRICTIONS.....................................................16
Section 6.01 Restrictions On Sales By Purchasers.....................................16
Section 6.02 Registration Rights.....................................................16
ARTICLE VII MISCELLANEOUS...................................................................16
Section 7.01 Notices.................................................................16
Section 7.02 Legends.................................................................17
Section 7.03 Termination.............................................................18
Section 7.04 Action By Purchasers....................................................18
Section 7.05 Entire Agreement........................................................18
Section 7.06 Modifications And Amendments............................................18
Section 7.07 Waivers And Consents....................................................18
Section 7.08 Assignment..............................................................19
Section 7.09 Benefit.................................................................19
Section 7.10 Governing Law...........................................................19
Section 7.11 Severability............................................................19
Section 7.12 Interpretation..........................................................19
Section 7.13 Headings And Captions...................................................19
Section 7.14 Enforcement.............................................................19
Section 7.15 No Waiver Of Rights, Powers And Remedies................................20
Section 7.16 Expenses................................................................20
Section 7.17 Confidentiality.........................................................20
Section 7.18 Publicity...............................................................20
Section 7.19 Counterparts............................................................21
Section 7.20 Obligations Several, Not Joint..........................................21
EXHIBITS
DESIGNATION DESCRIPTION SECTION REFERENCES
Exhibit A Name of Purchasers and Number of Shares to Be
Purchased by Each Purchase 1.01
Exhibit B Name of Carlyle Entity and Number of Dividend
Shares to be Issued by Company to Each of Them
in Lieu of Payment of Cash Dividends Set Forth
Opposite Name of Each of Them
Exhibit C Name of Carlyle Entity and Number of
Conversion Shares Issued by the Company to
Each Carlyle Entity Upon Conversion of Shares
of Series B Stock Set Forth Opposite Name of
Each
Exhibit D Escrow Agreement 1.01
Exhibit E Put and Right of First Refusal Agreement
Exhibit F Registration Rights Agreement
Exhibit G Opinion of Counsel to the Company 3.01
Exhibit H Sixth Loan Modification Agreement
SCHEDULES
DESIGNATION DESCRIPTION
4.01(c) Government Approvals
4.01(d) Rights to Purchase Shares
4.01(e) Outstanding Registration Rights
4.01(g) Conflicts
COMMON STOCK PURCHASE AGREEMENT
THIS COMMON STOCK PURCHASE AGREEMENT (this "Agreement"), dated as of the
30th day of December, 2002 (the "Effective Date"), by and among SIGHT RESOURCE
CORPORATION, a Delaware corporation (the "Company"), and the persons listed on
Exhibit A attached hereto (each a "Purchaser" and collectively the
"Purchasers"), under the following circumstances:
R E C I T A L S
WHEREAS, the Company has secured new senior financing in an amount of
$2,000,000 (the "Senior Financing") from CadleRock Joint Venture, LP ("Xxxxx"),
effective as of the Closing Date (as hereinafter defined); and
WHEREAS, subject to the Senior Financing, each Purchaser has agreed to
purchase and acquire shares of the Common Stock, par value $.01 per share (the
"Common Stock"), of the Company, in the amounts, at the purchase price and
subject to the terms and conditions specified herein;
WHEREAS, the Company desires to issue and sell to each of the Purchasers
shares of the Common Stock of the Company, in the amounts, at the purchase price
and subject to the terms and conditions specified herein; and
WHEREAS, the Company and the Purchasers have agreed to the other
transactions and agreements provided for, and upon the terms and conditions
described herein.
NOW, THEREFORE, in consideration of the foregoing and of the mutual
covenants and agreements set forth herein the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01..Definitions. As used in this Agreement, references to
either gender shall include the other gender, and the following terms shall have
the following meanings (such meanings to be equally applicable to both the
singular and plural forms of the terms defined). The following terms are defined
as follows:
"Affiliate" means a Person that directly, or indirectly through
one or more intermediaries, controls or is controlled by, or is under
common control with, the Person specified.
"Agreement" means this Common Stock Purchase Agreement, as
amended, modified or supplemented from time to time in accordance with
the terms hereof.
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"Business Day" means any day on which commercial banks are not
authorized or required by law to close in Cincinnati, Ohio.
"Carlyle" means Carlyle Venture Partners, L.P., C/S Venture
Investors, L.P., Carlyle U.S. Venture Partners, L.P. and Carlyle
Venture Coinvestment, L.L.C.
"Closing" and "Closing Date" shall have the meanings specified in
Section 2.01(b).
"Commission" means the United States Securities and Exchange
Commission or any other agency successor thereto.
"Common Stock" has the meaning specified in the recitals to this
Agreement.
"Company" means and shall include Sight Resource Corporation, a
Delaware corporation, and its successors and permitted assigns.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended, or any similar Federal statute, and the rules and regulations
of the Commission thereunder, all as the same shall be in effect at
the time.
"Financial Statements" means (i) the Company's consolidated
balance sheet as of December 29, 2001 and the related consolidated
statements of operations, stockholders' equity, and cash flows for the
year then ended, as set forth in the Company's Report on Form 10-K for
the year ended December 29, 2001, and (ii) the Company's consolidated
balance sheet as of September 28, 2002 and the related consolidated
statements of operations and cash flows for the nine months then
ended, as set forth in the Company's Report on Form 10-Q for the
period ended September 28, 2002.
"Fleet" means Fleet National Bank, a national banking
association.
"Fleet Loan Documents" means (i) the Loan Agreement dated April
15, 1999 among Fleet, the Company and certain subsidiaries and
affiliates of the Company (the Company and such subsidiaries and
affiliates being hereinafter referred to as the "Original Borrowers"),
as modified or amended by Modification Agreement dated March 31, 2000,
Second Modification Agreement dated November 30, 2000, Amended and
Restated Third Modification Agreement dated May 14, 2001, Fourth
Modification Agreement dated July 31, 2002, and Fifth Modification
Agreement dated November 15, 2002, (ii) the Secured Revolving Line
Note dated April 15, 1999 in the maximum principal amount of
$3,000,000 made by the Original Borrowers payable to Fleet, (iii) the
Secured Term Note dated April 15, 1999 in the original principal
amount of $7,000,000 made by the Original Borrowers payable to Fleet,
(iv) the eight Security Agreements (All Assets) dated April 15, 1999
of each of the Original Borrowers, as amended and confirmed by certain
Ratifications and Amendments of Security Agreements dated January 31,
2002, and (v) the Security Agreement (All Assets) dated July 31, 2002
by Kent Optometric Providers P.C.
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"Liquidity Event" means (a) the closing of a firm commitment
underwritten public offering pursuant to an effective registration
statement under the Securities Act of 1933, as amended, covering the
offer and sale of common stock for the account of the Company to the
public with net proceeds to the Company of not less than $15,000,000 or
(b) the closing of a consolidation or merger of the Company, or a sale
of all or substantially all of the assets of the Company, other than a
merger, consolidation or sale of all or substantially all of the assets
of the Corporation in a transaction in which the shareholders of the
Company immediately prior to the transaction possess more than 50% of
the voting securities of the surviving entity (or parent, if any)
immediately after the transaction.
"Obligations" has the meaning specified in Section 3.02(g).
"Payoff Amount" has the meaning specified in Section 3.02(g).
"Person" means an individual, corporation, partnership,
association, joint venture, trust, or unincorporated organization, or
a government or any agency or political subdivision thereof.
"Purchaser" means and shall include each Person who purchases
Shares (as defined herein) hereunder and each of its or their
successors and permitted assigns.
"Securities Act" means the Securities Act of 1933, as amended, or
any similar Federal statute, and the rules and regulations of the
Commission thereunder, all as the same shall be in effect at the time.
"SEC Reports" has the meaning specified in Section 4.01(i).
"Shares" has the meaning specified in Section 2.01(a).
"Transaction Documents" shall mean this Agreement, the Escrow
Agreement dated the Closing Date and attached hereto as Exhibit D, the
Put and Right of First Refusal Agreement dated of even date herewith
by and among the Purchasers attached hereto as Exhibit E, the
Registration Rights Agreement dated of even date herewith by and among
the Company and the Purchasers attached hereto as Exhibit F, and any
other instruments or certificates to be executed and delivered in
connection with this Agreement upon the Closing.
ARTICLE II
PURCHASE AND SALE OF THE SHARES
SECTION 2.01 Purchase and Sale of the Shares.
(a) Issuance of the Shares. Subject to the terms and conditions
of this Agreement, at the Closing (as defined below), the Company agrees to
issue and sell to each Purchaser, and each Purchaser agrees to purchase, that
number of shares of the Company's
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Common Stock ("Shares") as is set forth opposite such Purchaser's name
on Exhibit A attached hereto and incorporated by reference herein at a purchase
price of $0.20 per share. The Shares shall be sold by the Company free and clear
of all liens, security interests, pledges, hypothecation and other encumbrances.
(b) Closings; Delivery of the Shares. The purchase and sale of
the Shares shall take place on December 30, 2002 at the offices of Xxxxxxxx Xxxx
LLP, 0000 Xxxxxxxxxx Xxxxx X.X., Xxxxxx, Xxxx at 10:00 a.m. (local time) or at
such other location, time and date as may be mutually agreed upon by the parties
(the "Closing" and the "Closing Date"). At the Closing, subject to the terms and
conditions contained in this Agreement, the Company will provide evidence
satisfactory to each Purchaser that the Company has taken all steps necessary to
cause to be issued to each Purchaser stock certificates evidencing the Shares,
registered in the names of the Purchasers and dated as of the Closing Date,
which stock certificates shall be delivered to the Purchasers within two
Business Days of the Closing, against receipt of wire transfers of immediately
available funds to an account of the Company specified to the Purchasers, in an
aggregate amount equal to the purchase price set forth opposite the name of such
Purchaser on Exhibit A attached to this Agreement and incorporated by reference
herein for the Shares issued and sold to such Purchaser at the Closing.
(c) At the time of the execution of this Agreement, each
Purchaser other than the Carlyle entities shall deposit the purchase price to be
paid to the Company for the purchase of the number of Shares set forth opposite
its name on Exhibit A in to escrow pursuant to the terms of an escrow agreement
in the form of Exhibit D attached hereto and incorporated by reference herein.
(d) For the convenience of the Company, the Company hereby
directs Carlyle to wire transfer to Fleet the purchase price to be paid by
Carlyle for the Shares set forth on Exhibit A. Such wire transfer to Fleet by
Carlyle shall constitute payment to the Company for the Shares to be issued to
Carlyle pursuant to this Agreement.
SECTION 2.02 Acknowledgement by Purchasers. Each Purchaser acknowledges
(i) that the Company has furnished to such Purchaser all such information as
such Purchaser has requested in connection with the investment determination by
such Purchaser to enter into this Agreement and to purchase Shares, and (ii)
that such Purchaser has had the opportunity to ask questions and receive answers
concerning the Company and the terms and conditions of the purchase of the
Shares.
ARTICLE III
CONDITIONS TO CLOSING
SECTION 3.01 Mutual Conditions to Closing. The obligation of each
Purchaser to purchase and pay for, and the obligation of the Company to issue
and sell to each Purchaser, the Shares at the Closing and to consummate the
other transactions contemplated by this Agreement or the Transaction Documents
to which it is a party, is subject to the following conditions:
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(a) No Injunction. No injunction or order of any court or
other governmental authority restraining the consummation of the transactions
provided for herein or contemplated by the other Transaction Documents shall be
in effect; and
(b) No Termination. This Agreement shall not have been
terminated pursuant to Section 7.03.
(c) All consents, approvals, registration and qualifications
from, and all filings with, any third party or governmental authority necessary
for the consummation of the transactions contemplated herein or in the
Transaction Documents shall have been received.
SECTION 3.02 Conditions to Purchaser's Obligations. The obligation of
each Purchaser to purchase and pay for the Shares and to consummate the other
transactions contemplated by this Agreement or the Transaction Documents to
which it is a party, at the Closing is subject to the following additional
conditions:
(a) Compliance with Agreement. Each of the representations and
warranties of the Company set forth in Article IV hereof shall be true and
correct in all material respects on and as of the date of the Closing, and all
agreements, covenants and conditions required by this Agreement to be complied
with or performed or fulfilled by the Company at or prior to such Closing shall
have been complied with, performed or fulfilled in all material respects;
(b) Executed Counterparts. Each Purchaser shall have received
prior to or at the Closing counterparts of each of the Transaction Documents,
each in form and substance reasonably satisfactory to the Purchaser, to which
the Company is a party, duly executed by or on behalf of the Company;
(c) Transaction Documents. All of the Purchasers shall have
executed and delivered the Transaction Documents required to be executed and
delivered by them pursuant to this Agreement, including, but not limited to, the
Put and Right of First Refusal Agreement;
(d) Payment by Other Purchasers. Each other Purchaser shall
have, at the Closing, made payment for the Shares being purchased by such
Purchaser in the amount of the purchase price set forth opposite its name on
Exhibit A;
(e) Delivery of Stock Certificates. The Company shall have
delivered to each Purchaser at the Closing, evidence reasonably satisfactory to
such Purchaser that the Company has taken all steps necessary to cause to be
issued to such Purchaser a stock certificate evidencing the Shares, no later
than two business days following the Closing;
(f) Opinion of Counsel. The Purchasers shall have received
prior to or at the Closing an opinion from counsel to the Company in
substantially the form attached hereto as Exhibit C;
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(g) Pending Actions. No suit, action or proceeding, injunction
or preliminary injunction which seeks to prohibit consummation of the
transactions contemplated by this Agreement shall be pending;
(h) Debt Reduction. On the Closing Date, Xxxxx shall have
acquired all rights under the Fleet Loan Documents, the total amount of
indebtedness of the Company under the Fleet Loan Documents shall have been
reduced to $2,000,000, and all events of default, defaults, and matters that
with the passage of time would mature into defaults under the Fleet Loan
Documents shall have been waived by Xxxxx as of the Closing Date, and the Sixth
Loan Modification Agreement shall have been executed and delivered by the
parties thereto and shall be in full force and effect.
(i) Issuance of Dividend Shares. The Company shall have issued
to Carlyle the number of shares of Common Stock set forth opposite the name of
each Carlyle entity (the "Dividend Shares"), on Exhibit B attached hereto and
incorporated by reference herein, on account of accrued and unpaid dividends on
the shares of Series B Convertible Preferred Stock of the Company ("Series B
Stock") held by them in lieu of accrued and unpaid cash dividends thereon, and
the Company has delivered to Carlyle at the Closing, evidence reasonably
satisfactory to Carlyle that the Company will issue and deliver certificates
representing such shares of the Common Stock to Carlyle no later than two
Business Days following the Closing.
(j) Issuance of Conversion Shares. The Company shall have issued
to Carlyle the number of shares of Common Stock (the "Conversion Shares") set
forth opposite the name of each Carlyle entity on Exhibit C attached hereto and
incorporated by reference herein, upon conversion of the number of shares of
Series B Stock set forth opposite the name of each Carlyle entity on Exhibit C,
and the Company has delivered evidence reasonably satisfactory to Carlyle that
the Company will issue and deliver certificates representing such shares of
Common Stock to Carlyle no later than two Business Days following the Closing.
(k) Documentation at Closing. The Purchasers shall have
received, prior to or at such Closing, (I) a certificate, executed by the
Secretary or Assistant Secretary of the Company and dated as of the Closing
Date, together with and certifying as to (A) the resolutions of the Board of
Directors of the Company authorizing the execution and delivery of this
Agreement and the other Transaction Documents and the performance by the Company
of all transactions contemplated hereby and thereby and the election of Xxxxx
Xxxxxxx as a director of the Company and the steps to be taken to identify the
person to be appointed as a director of the Company who would be the person of
significant financial and accounting expertise contemplated by Section 5.01(c)
of this Agreement; (B) a copy of the Certificate of Incorporation of the
Company, as amended and in effect as of the date of such Closing; (C) a copy of
the by-laws of the Company, as amended and in effect as of the date of such
Closing; and (D) the names of the officers of the Company authorized to sign the
Transaction Documents together with the true signatures of such officers; and
(II) a certificate, executed by an executive officer of the Company and dated as
of the Closing Date, to the effect that, to the best of the knowledge of such
individual, the conditions set forth in Section 3.02 have been satisfied; and
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(l) Documents and Proceedings. All documents to be provided to
the Purchasers hereunder, and all corporate and other proceedings taken or
required to be taken in connection with the transactions contemplated hereby and
to be consummated at or prior to such Closing and all documents incident
thereto, shall be reasonably satisfactory in form and substance to the
Purchasers or to their counsels.
(m) Election of Directors. Xx. Xxxxxxx and Xx. Xxxxxxxx shall
continue as directors of the Company; Xx. Xxxxx Xxxxxxx shall be elected a
director effective as of the Closing Date; and the Board of Directors of the
Company shall have agreed to elect, as soon as reasonably practicable after the
Closing, an additional director who has significant financial and accounting
expertise and who is neither employed by the Company nor an Affiliate of the
Company as an employee or consultant.
Waiver. Any condition specified in this Section 3.02 may be waived by
the consent of all the Purchasers.
SECTION 3.03 Conditions to the Company's Obligations. The obligation of
the Company to issue and sell the Shares at the Closing is subject to the
following additional conditions:
(a) Representations and Warranties. Each of the representations
and warranties of the Purchasers set forth in Section 4.02 hereof shall be true
and correct in all material respects on the date of such Closing;
(b) Executed Counterparts. The Company shall have received
prior to or at the Closing counterparts of each of the Transaction Documents to
which a Purchaser is a party, in form and substance reasonably satisfactory to
the Company, duly executed by such Purchaser;
(c) Payment. The Company shall have received payment in full
for the Shares to be purchased at the Closing in accordance with Section 2.01;
(d) Documentation at Closing.
(A) With respect to each of the Purchasers that are United
States corporate entities, the Company shall have received, prior
to or at the Closing, a certificate, executed by the Secretary of
such Purchaser and dated as of the Closing Date, together with
and certifying as to (i) the resolutions of the Board of
Directors of such Purchaser authorizing the execution and
delivery of this Agreement and the other Transaction Documents
and the performance by such Purchaser of all transactions
contemplated hereby and thereby; and (ii) the names of the
officers of such Purchaser authorized to sign the Transaction
Documents together with the true signatures of such officers; and
(B) With respect to all other Purchasers, the Company
shall have received, prior to or at the Closing, such
certification as the Company may
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reasonably request with respect to each Purchaser's compliance
with the representation and warranties set forth in Section 4.02
(f); and
(e) Documents and Proceedings. All documents to be provided to
the Company hereunder, and all corporate and other proceedings taken or required
to be taken in connection with the transactions contemplated hereby and to be
consummated at or prior to such Closing and all documents incident thereto,
shall be reasonably satisfactory in form and substance to the Company or its
counsel.
Waiver. Any condition specified in this Section 3.03 may be waived by
the Company.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01 Representations and Warranties of the Company. The Company
represents and warrants to each Purchaser as follows:
(a) Organization and Standing of the Company. The Company is a
duly organized and validly existing corporation in good standing under the laws
of the State of Delaware, is duly qualified and in good standing in every other
state in which by reason of the nature or location of the Company's assets or
operation of the Company's business, such qualification is necessary and has all
requisite corporate power and authority to own and operate its assets and
properties and to conduct its business as presently conducted, and is duly
qualified to transact business and is in good standing under the laws of each
jurisdiction where its ownership, lease or operation of assets and property or
the conduct of its business requires such qualification except where the failure
to do so would not, and reasonably could not be expected to, have a material
adverse effect on the business operations, financial condition, liabilities,
assets or properties (a "Material Adverse Effect") of the Company and its
subsidiaries taken as a whole. True and correct copies of the Certificate of
Incorporation of the Company, as amended and in effect as of the date of this
Agreement, and the By-Laws of the Company, as amended and in effect as of the
date of this Agreement, both certified by the Secretary or an Assistant
Secretary of the Company, have been made available to the Purchasers.
(b) Corporate Action. The Company has all necessary corporate
power and authority to execute and deliver, and perform all obligations and
agreements under this Agreement and the Transaction Documents to which it is a
party and the Company has all necessary corporate power and has authorized the
issuance and sale of the Shares and to consummate the other transactions
contemplated by this Agreement and the Transaction Documents. The execution,
delivery and performance of this Agreement and the Transaction Documents to
which it is a party, and the transactions contemplated hereby and thereby, have
been duly authorized by all necessary corporate, including shareholder (if
required) action on the part of the Company.
(c) Governmental Approvals. Except as indicated on Schedule
4.01(c), no authorization, consent, approval, license, exemption of or filing or
registration with any court or governmental department, commission, board,
bureau, agency or instrumentality, domestic or
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foreign, is necessary for, or in connection with, the issuance and sale of the
Shares on the Closing Date, or the execution and delivery by the Company of, or
for the performance by it of its obligations under, this Agreement and the
Transaction Documents.
(d) Capitalization. As of the date hereof, the authorized
capital stock of the Company consists of (i) 70,000,000 shares of Common Stock,
par value $.01 per share, of which 30,667,709 shares are issued and outstanding
and 30,600 shares are treasury shares, and (ii) 5,000,000 shares of Preferred
Stock, par value $.01 per share, of which 200,000 shares have been designated as
Series A Preferred Stock, none of which are issued and outstanding, and
1,452,119 shares have been designated as Series B Preferred Stock, all of which
are issued and outstanding. The Shares, when issued against payment of the
purchase price set forth in Section 2.01, will be duly authorized, validly
issued and fully paid and non-assessable and not subject to any lien, claim or
encumbrance by reason of the Company's charter or by-laws or by reason of any
other consensual action taken by the Company. The Dividend Shares and Conversion
Shares at Closing will be duly authorized, validly issued, and fully paid and
non-assessable. As of the date hereof, except as described or contemplated in
the SEC Reports filed with respect to periods ending on or after December 29,
2001 and as set forth on Schedule 4.01(d), there are no options, warrants,
convertible securities or other rights to purchase shares of capital stock or
other securities of the Company which are authorized, issued or outstanding, nor
is the Company obligated in any other manner contingent or otherwise to issue
shares of its capital stock or other securities or securities exercisable
therefore or convertible therewith, and the Company has no obligation to
purchase, redeem or otherwise acquire any shares of its capital stock or any
interest therein or to pay any dividend or make any other distribution in
respect thereof, except as contemplated by this Agreement and the Transaction
Documents. Except as described in the SEC Reports, and except as otherwise
contemplated by the this Agreement and the Transaction Documents, no person is
entitled to any preemptive right, right of first refusal or similar right with
respect to the issuance of any capital stock of the Company, including the
Shares, Dividend Shares and Conversion Shares.
(e) Registration Rights. As of the date hereof, except as set
forth on Schedule 4.01(e), no person has demand or other rights to cause the
Company to file any registration statement under the Securities Act relating to
any securities of the Company or any right to participate in any such
registration statement.
(f) Enforceability. The Company has duly authorized, executed
and delivered this Agreement and the Transaction Documents to which it is a
party, and this Agreement and the Transaction Documents constitute the legal,
valid and binding obligations of the Company, enforceable in accordance with
their respective terms, except as enforcement may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or other similar laws
affecting creditors' rights generally and subject to general principles of
equity and limitations on availability of equitable relief, including specific
performance, and except as rights to indemnification therein may be limited by
applicable laws.
(g) Absence of Conflicts. Except as set forth in Schedule
4.01(g), the Company's execution, delivery and performance of its obligations
under this Agreement and the other Transaction Documents, and the consummation
of the transactions contemplated hereby
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and thereby, do not and will not (i) contravene its Certificate of Incorporation
or By-laws, (ii) violate, conflict with or constitute a default under (with or
without notice of lapse of time or both) any law, rule, regulation, order,
judgment or decree applicable to or binding upon the Company or its properties,
which violation would have a Material Adverse Effect on the Company and its
subsidiaries taken as a whole, (iii) constitute a breach or default under (with
or without notice or lapse of time or both) or require any consent under any
agreement or instrument to which the Company is a party or by which the Company
or its properties is bound or affected, which breach or default, or the absence
of such consent, would have a Material Adverse Effect on the Company and its
subsidiaries taken as a whole, or (iv) require any consent, permit, approval,
action, filing or recording of any third party or U.S. federal, state and local,
or any foreign, governmental authority.
(h) Financial Statements. The Financial Statements are correct
in all material respects, present fairly the financial condition and results of
operations of the Company as of the dates and for the periods indicated, and
have been prepared in accordance with generally accepted accounting principles
("GAAP") consistently applied.
(i) SEC Reports. Since December 30, 2000, the Company has filed
with the Commission all reports (the "SEC Reports") each in the form (including
exhibits and any amendments thereto) required to be filed by it under the
Exchange Act. All of the SEC Reports filed by the Company comply in all material
respects with the requirements of the Exchange Act. All financial statements
contained in the SEC Reports have been prepared in accordance with GAAP
consistently applied throughout the period indicated and in conformity with the
SEC's Regulation S-X. Each balance sheet presents fairly in accordance with GAAP
the financial position of the Company as of the date of such balance sheet, and
each statement of operations, of stockholders' equity and of cash flows presents
fairly in accordance with GAAP the results of operations, the stockholders'
equity and the cash flows of the Company for the periods then ended.
(j) Securities Laws. Assuming the accuracy of the
representations and warranties of the Purchaser contained in Section 4.02
hereof, the issuance of the Shares and the Dividend Shares and the Conversion
Shares will be exempt from the registration requirements of the Securities Act
and applicable state securities laws. Neither the Company nor its agents has
solicited or will solicit any offers to sell or has offered to sell, or will
offer to sell all or any part of the Shares to any person or persons so as to
make the exemption from registration under the Securities Act unavailable.
(k) Broker's Fee. No brokers or finders are entitled to
compensation in connection with the sale of the Shares or the issuance of the
Dividend Shares and Conversion Shares attributable to any agreement or
commitment made by or on behalf of the Company.
(l) Exemption from State Anti-Takeover Laws. No "moratorium,"
"control share acquisition," shareholder approval requirement, Company "poison
pill" plan, or other form of anti-takeover statute or regulation applies to the
transactions contemplated by this Agreement if such transactions are consummated
in the manner contemplated by this Agreement.
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(m) Rights Agreement. Prior to the execution of this Agreement,
the Company has amended its Amended and Restated Rights Agreement dated as of
May 15, 1997 with American Stock Transfer & Trust Purchasers (the "Rights
Agreement") so that the execution of this Agreement and the Transaction
Documents and consummation of the transactions contemplated hereby and thereby
do not and will not, with or without the passage of time, result in (i) the
grant of any rights to any person under the Rights Agreement or enable or
require Company's outstanding rights to be exercised, distributed or triggered,
(ii) the Purchasers or any of their Affiliates becoming an "Acquiring Person"
(as defined in the Rights Agreement), or (iii) a "Distribution Date" (as defined
in the Rights Agreement).
(n) Board of Directors. The members of the Board of Directors of
the Company consist of nine members of which Xx. Xxxx Xxxxxxxx and one designee
of Carlyle have been duly elected as directors.
(o) Debt Reduction. On the Closing Date, Xxxxx shall have
acquired all rights under the Fleet Loan Documents, the amount of indebtedness
of the Company under the Fleet Loan Documents shall have been reduced to
$2,000,000, and all events of default, defaults, and matters that with the
passage of time would mature into defaults under the Fleet Loan Documents shall
have been waived by Xxxxx as of the Closing Date. This Agreement and the
Transaction Documents and consummation of the transactions contemplated hereby
and thereby will not violate any provisions of the Fleet Loan Documents as
revised. The Fleet Loan Documents as revised and as shall be in full force and
effect on the Closing Date contain no financial covenants, negative covenants or
affirmation covenants that could have a Material Adverse Effect on the Company
and its subsidiaries taken as whole. None of the Company or any of its officers,
directors, employees, agents or affiliates are parties to any side letters or
other agreements with Xxxxx, Fleet or any of their respective officers,
directors, employees, agents or affiliates other than the Sixth Loan
Modification Agreement. None of the Company or any officers, directors,
employee, agent or affiliate of the Company or any of its subsidiaries is
affiliated with or otherwise related to Xxxxx or any of its officers, directors,
employees, agents or affiliates.
(p) No Pending Transactions. Except for the transactions
contemplated by this Agreement and the Transaction Documents, neither the
Company nor any subsidiary is a party to or bound by or the subject of any
agreement, undertaking, commitment or discussions or negotiations with any
person or entity that could result in (i) the sale, merger, consolidation or
recapitalization of the Company or any subsidiary, (ii) the sale of all or
substantially all of the assets of the Company or any subsidiary, or (iii) a
change of control of more than five percent of the outstanding capital stock of
the Company or any subsidiary.
(q) Disclosure. Neither this Agreement nor any of the
Transaction Documents which the Company is a party nor any Exhibits or Schedules
hereto or thereto, nor any report, certificate or instrument furnished to any
Purchaser or its counsel in connection with the transactions contemplated hereby
or thereby, when read together, contains or will contain any untrue statement of
a material fact or omits or will omit to state a material fact necessary in
order to make the statements contained herein or therein, in light of the
circumstances under which they were made, not misleading.
12
(r) Litigation. There is no suit, claim, action, proceeding,
arbitration, hearing or investigation pending, or to the knowledge of the
Company, threatened against the Company or any of its subsidiaries or any
properties or assets, which individually or in the aggregate could reasonably be
expected to have a Material Adverse Effect on the Company and its subsidiaries
taken as a whole.
(s) Changes. Since the meeting of the Board of Directors of the
Company in November at which November estimated financial results were
distributed, there has not been any material adverse change in the assets,
liabilities, financial conditions, operating results of the Company and its
subsidiaries taken as a whole, or events or circumstances that could reasonably
be expected, individually or in the aggregate, to have a Material Adverse Effect
on the Company and its subsidiaries taken as a whole.
SECTION 4.02 Representations and Warranties of the Purchasers. Each
Purchaser, severally but not jointly, represents and warrants to the Company as
follows:
(a) Investment Intent. Purchaser is acquiring the Shares on the
Closing Date for its own account for the purpose of investment and not with a
view to, or for sale in connection with, the distribution thereof, and it has no
present intention of distributing or selling such Shares. Such Purchaser
understands that such Shares have not been registered under the Securities Act
or the securities laws of any state or other jurisdiction and that the Company
has no obligation to so register the Shares other than pursuant to the
Registration Rights Agreement dated the Closing Date. Such Purchaser hereby
agrees not to make any sale, transfer or other disposition of such Shares unless
either (i) such Shares have been registered under the Securities Act and all
applicable state and other securities laws and any such registration remains in
effect or (ii) the Company shall have received an opinion of counsel in form and
substance satisfactory to the Company that registration is not required under
the Securities Act or under applicable securities laws.
(b) Opportunity to Investigate. The Purchaser (i) has had the
opportunity to ask questions concerning the Company and all such questions posed
have been answered to its satisfaction; (ii) has been given the opportunity to
obtain any additional information it deems necessary to verify the accuracy of
any information obtained concerning the Company; and (iii) has such knowledge
and experience in financial and business matters that it is able to evaluate the
merits and risks of purchasing the Shares and to make an informed investment
decision relating thereto.
(c) Accredited Investor. Such Purchaser is an "accredited
investor" as such term is defined in Regulation D under the Securities Act.
(d) Enforceability. Such Purchaser has duly authorized, executed
and delivered the Transaction Documents to which it is a party, and this
Agreement and such Transaction Documents constitute the legal, valid and binding
obligations of such Purchaser, enforceable in accordance with their respective
terms, except as enforcement may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or other similar laws affecting
13
creditors' rights generally and subject to general principles of equity and
limitations on availability of equitable relief, including specific performance,
and except as rights to indemnification therein may be limited by applicable
laws.
(e) Broker's Fee. Except as heretofore disclosed in writing by
such Purchaser to the Company, no brokers or finders are entitled to
compensation in connection with the sale of the Shares attributable to any
agreement or commitment made by or on behalf of such Purchaser.
(f) With respect to such Purchaser that is a corporation:
(i) Organization and Standing of the Purchaser. Such
Purchaser is a duly organized and validly existing corporation in good
standing and has all requisite corporate power and authority to own and
operate its assets and properties and to conduct its business as
presently conducted, except where the failure to do so would not have a
material adverse effect on the Purchaser and its subsidiaries taken as a
whole.
(ii) Corporate Action. Such Purchaser has all necessary
corporate or other power and has taken all corporate or other action
required to authorize its execution and delivery of, and its performance
under, this Agreement and the Transaction Documents to which it is a
party and has all necessary corporate power and has taken all corporate
action required to authorize its purchase of the Shares and to
consummate the other transactions contemplated by the Transaction
Documents.
(g) Foreign Purchasers. If such Purchaser resides in a country
other than the United States, such Purchaser represents and warrants that the
purchase of the Shares by such Purchaser is in compliance with the applicable
laws of its jurisdiction.
ARTICLE V
COVENANTS
SECTION 5.01 Board of Directors. For a period of three years following
the Closing Date, the Company's Board of Directors shall take such action as may
be consistent with its fiduciary duties to cause the Board of Directors to
remain consistent with its current composition subject to the following: (a) Xx.
Xxxxxxxx and one representative of Carlyle will be members of the Board of
Directors of the Company, (b) Xx. Xxxxx Xxxxxxx will be a director of the
Company, and (c) the Board shall nominate an additional director who shall have
significant financial and accounting expertise and who is neither employed by
the Company nor an Affiliate of the Company as an employee or consultant and the
identity and financial and accounting experience of such director shall be
reasonably satisfactory to Carlyle; and (d) Xx. Xxxxxxxx shall have the right to
designate the director to fill the first vacancy on the Board of Directors of
Company (other than vacancies caused by the resignation, removal or failure to
nominate a director by Carlyle or Mr. Brustio) following the Closing.
SECTION 5.02 Transaction Documents. The Company and each of the
Purchasers covenant that each of them will execute and deliver at Closing the
Transaction Documents to
14
which it is a party. Each Purchaser covenants to each other Purchaser that it
or its affiliate named therein will execute and deliver the Put and Right of
First Refusal Agreement at Closing.
SECTION 5.03 Cooperation. Each party shall endeavor in good faith to
perform and fulfill all conditions and obligations on their respective parts to
be fulfilled or performed hereunder or under the other Transaction Documents, to
the end that the transactions contemplated hereby and thereby will be fully and
timely consummated.
SECTION 5.04 Dividend Shares. Simultaneously with the Closing, the
Company shall issue to each Carlyle entity the number of Dividend Shares set
forth opposite the name of each Carlyle entity on Exhibit B attached hereto in
payment of accrued and unpaid dividends on the shares of Series B Stock held by
each of them to and including the date of this Agreement. At Closing, the
Company will deliver to Carlyle evidence reasonably satisfactory to Carlyle that
certificates representing the number of Dividend Shares issued to each Carlyle
entity will be delivered to each Carlyle entity no later than two Business Days
following the Closing Date. The Company covenants that the Dividend Shares when
issued will be duly authorized, validly issued, fully paid and non-assessable
and will be free and clear of all liens, security interests, pledges,
hypothecation and other encumbrances.
SECTION 5.05 Conversion Shares. Simultaneously with the Closing, the
Company shall issue to each Carlyle entity the number of Conversion Shares set
forth opposite the name of each Carlyle entity on Exhibit C attached hereto upon
conversion of the number of shares of Series B Stock set forth opposite the name
of each Carlyle entity on Exhibit C. At Closing, the Company will deliver to
Carlyle, evidence reasonably satisfactory to Carlyle that certificates
representing the number of Conversion Shares issued to each Carlyle entity will
be delivered to each Carlyle entity no later than two Business Days following
the Closing Date. The Company covenants that the Conversion Shares when issued
will be duly authorized, validly issued, fully paid and non-assessable and will
be free and clear of all liens, security, interests, pledges, hypothecation and
other encumbrances.
SECTION 5.06 Third Party Consents; Regulatory Matters. Each of the
Company and each Purchaser will (i) make on a prompt and timely basis all
governmental or regulatory notifications, filings or submissions, under U.S.
federal, state and local, and foreign, law, rules and regulations, necessary for
the consummation of the transactions contemplated by this Agreement and the
Transaction Documents, and (ii) use reasonable efforts to take, or cause to be
taken, all other action and do, or cause to be done, all other reasonable things
necessary or appropriate to consummate the transactions contemplated by this
Agreement. None of the Purchasers shall have any obligation to expend funds for
the Company to consummate the transactions contemplated herein.
SECTION 5.07 Cancellation of Class I (Mirror) and Class II Warrants Held
by Carlyle. Simultaneously with the Closing and issuance of the Shares, Dividend
Shares and Conversion Shares, the Carlyle entities and the Company covenant and
agree that the Class I (Mirror) and Class II Warrants held by each Carlyle
entity shall be marked cancelled on the books and records of the Company and
will be of no further force and effect.
15
ARTICLE VI
LIMITATIONS AND RESTRICTIONS
SECTION 6.01 Restrictions on Sales by Purchasers. Subject to the
provisions of Section 6.02 herein, each Purchaser agrees that until the date
that is two years after the Closing Date, it will not, nor will it permit any of
its Affiliates to, sell, solicit an offer to sell or propose to sell, any Shares
purchased at the Closing except as follows:
(a) each Purchaser may transfer Shares to any of its
Affiliates or to any other Purchaser so long as such Affiliates or Purchaser
agree in writing to be bound by the terms of this Article VI;
(b) each Purchaser may transfer Shares to any of its
Affiliates upon the occurrence of a Liquidity Event; and
(c) each Purchaser may transfer Shares to any of its
Affiliates if and to the extent permitted under Rule 144 promulgated under the
Securities Act of 1933, as amended.
(d) the Carlyle entities may transfer Shares pursuant to and
in accordance with the Put and Right of First Refusal Agreement.
(e) each Purchaser may transfer Shares, pursuant to the
Registration Rights Agreement.
SECTION 6.02 Registration Rights. At or prior to the Closing, the
Company shall execute and tender to the Purchasers for execution by them a
Registration Rights Agreement (the "Registration Rights Agreement") in form and
substance satisfactory to the Company and the Purchasers.
ARTICLE VII
MISCELLANEOUS
SECTION 7.01 Notices. All notices, requests, consents and other
communications hereunder shall be in writing, shall be addressed to the
receiving party's address set forth below or to such other address as a party
may designate by notice hereunder, and shall be either (i) delivered by hand,
(ii) made by telecopy or facsimile transmission (receipt confirmed), (iii) sent
by international overnight or express courier, or (iv) sent by registered mail,
return receipt requested, postage prepaid.
If to the Company: Sight Resource Corporation
0000 Xxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxxx, Xxxx 00000
Attn: Chief Executive Officer
Fax: (513)
with a copy to: Xxxxxxxx Xxxx LLP
16
0000 Xxxxxxxxxx Xxxxx, X.X.
Xxxxxx, Xxxx 00000
Attn: J. Xxxxxxx Xxxx, Esq.
If to the Purchasers: To the addresses set forth on Exhibit A
With a copy to: Carlyle Entities
c/o Carlyle Venture Partners, L.P.
0000 Xxxxxxxxxxxx Xxxxxx
Xxxxx 000 Xxxxx
Xxxxxxxxxx, X.X. 00000
Attn: Xxxx Xxxxxxx
Fax: (000) 000-0000
Xxxxxx, Xxxxxx & Xxxxxxxxx
000 Xxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attn: Xxxx X. Xxxxxxx, Esq.
(If to Excalibur Investments B.V. or La Xxxxx X.X.)
Collier, Halpern, Xxxxxxx, Xxxxxxxx & Xxxx, LLP
Xxx Xxxxx Xxxxxxxxx Xxxxxx
Xxxxx Xxxxxx, XX 00000
Attn: Xxxxx X. Xxxxxxx, Esq.
All notices, requests, consents and other communications hereunder shall
be deemed to have been given either (i) if by hand, at the time of the delivery
thereof to the receiving party at the address of such party set forth above,
(ii) if made by telecopy or facsimile transmission, at the time that receipt
thereof has been acknowledged by electronic confirmation or otherwise, (iii) if
sent by overnight or express courier, on the Business Day following the day such
notice is delivered to the courier service, or (iv) if sent by registered mail,
on the fifth Business Day following the day such mailing is made.
SECTION 7.02 Legends. Each Purchaser acknowledges that, until
registered under the Securities Act and any applicable state securities laws or
transferred pursuant to the provisions of Rule 144 promulgated under the
Securities Act ("Rule 144"), each certificate representing a Share, whether upon
initial issuance or upon any transfer thereof, shall bear a legend (and the
Company and its transfer agent shall make a notation on its books of transfer to
such effect), prominently stamped or printed thereon, in substantially the
following form:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR THE
SECURITIES LAWS OF ANY APPLICABLE STATE OR OTHER JURISDICTION, HAVE BEEN
ACQUIRED FOR INVESTMENT AND NOT WITH A VIEW TO
17
DISTRIBUTION OR RESALE AND MAY NOT BE SOLD, MORTGAGED, PLEDGED,
HYPOTHECATED OR OTHERWISE TRANSFERRED IN THE ABSENCE OF AN EFFECTIVE
REGISTRATION STATEMENT COVERING SUCH SECURITIES UNDER THE ACT AND ANY
SECURITIES LAWS OF ANY APPLICABLE STATE OR OTHER JURISDICTION OR A
WRITTEN OPINION OF COUNSEL IN FORM AND SUBSTANCE SATISFACTORY TO THE
ISSUER TO THE EFFECT THAT REGISTRATION IS NOT REQUIRED UNDER THE ACT OR
UNDER OTHER APPLICABLE SECURITIES LAWS."
SECTION 7.03 Termination. If the Closing has not occurred on or prior
to February 15, 2003, or if prior to the Closing the Company or any Purchaser
has been notified that the U.S. Department of Justice or the Federal Trade
Commission, or any other Federal, state or other governmental agency or
instrumentality the consent or approval of which is contemplated by the terms of
this Agreement or any other Transaction Document, is prepared to (a) seek a
preliminary injunction to enjoin the consummation of the transactions
contemplated hereunder or thereunder or (b) grant such consent or approval upon
the condition that any material action or forbearance of action not otherwise
specifically required of the party choosing to terminate pursuant to this
Section 7.03 be taken, then (i) the Company may terminate this Agreement by
written notice to the Purchasers and (ii) the Purchasers may terminate this
Agreement by written notice to the Company.
SECTION 7.04 Action by Purchasers. In any situation in which this
Agreement either grants to the Purchasers as a group any rights or calls for the
consent or waiver of the Purchasers as a group, such rights may be exercised, or
such consent or waiver may be granted in writing by the Purchasers holding 80%
of the Shares then held by all Purchasers (or if no Shares have then been
purchased, by Purchasers entitled to purchase a majority of the Shares to be
purchased.)
SECTION 7.05 Entire Agreement. This Agreement, together with its
Exhibits and Schedules, embodies the entire agreement and understanding between
the parties hereto with respect to the provisions hereof and supersedes all
prior oral or written agreements and understandings relating to the provisions
hereof. No statement, representation, warranty, covenant or agreement of any
kind not expressly set forth in this Agreement shall affect, or be used to
interpret, change or restrict, the express terms and provisions of this
Agreement.
SECTION 7.06 Modifications and Amendments. The material terms and
provisions of this Agreement may be modified or amended only by written
agreement executed by all parties hereto.
SECTION 7.07 Waivers and Consents. Except as other than expressly
provided herein, the terms and provisions of this Agreement may be waived, or
consent for the departure therefrom granted, only by written document executed
by all parties to this Agreement. No such waiver or consent shall be deemed to
be or shall constitute a waiver or consent with respect to any other terms or
provisions of this Agreement, whether or not similar. Each such waiver or
consent shall be effective only in the specific instance and for the purpose for
which it was given, and shall not constitute a continuing waiver or consent.
18
SECTION 7.08 Assignment. The rights and obligations under this
Agreement may not be assigned by any Purchaser on the one hand or by the Company
on the other hand without the prior written consent of all other parties hereto
(which consent shall not be unreasonably withheld), except that each Purchaser
without the consent of the Company may assign this Agreement or any of its
rights or obligations to an Affiliate of such Purchaser or to an entity (other
than an entity that competes with the Company) with which the Purchaser shall
merge or consolidate or to which the Purchaser shall sell or assign all or
substantially all of its assets.
SECTION 7.09 Benefit. All statements, representations, warranties,
covenants and agreements in this Agreement shall be binding on the parties
hereto and shall inure to the benefit of the respective successors and permitted
assigns of each party hereto. Nothing in this Agreement shall be construed to
create any rights or obligations except among the parties hereto, and no person
or entity shall be regarded as a third-party beneficiary of this Agreement.
SECTION 7.10 Governing Law. This Agreement and the rights and
obligations of the parties hereunder shall be construed in accordance with and
governed by the law of the State of Delaware, without giving effect to the
conflict of law principles thereof.
SECTION 7.11 Severability. In the event that any court of competent
jurisdiction shall determine that any provision, or any portion thereof,
contained in this Agreement shall be unenforceable in any respect, then such
provision shall be deemed limited to the extent that such court deems it
enforceable, and as so limited shall remain in full force and effect. In the
event that such court shall deem any such provision, or portion thereof, wholly
unenforceable, the remaining provisions of this Agreement shall nevertheless
remain in full force and effect.
SECTION 7.12 Interpretation. The parties hereto acknowledge and agree
that: (i) each party and its counsel reviewed and negotiated the terms and
provisions of this Agreement and have contributed to its revision; (ii) the rule
of construction to the effect that any ambiguities are resolved against the
drafting party shall not be employed in the interpretation of this Agreement;
and (iii) the terms and provisions of this Agreement shall be construed fairly
as to all parties hereto and not in favor of or against any party, regardless of
which party was generally responsible for the preparation of this Agreement. The
Recitals and Exhibits and Schedules to this Agreement are hereby incorporated by
reference herein.
SECTION 7.13 Headings and Captions. The headings and captions of the
various subdivisions of this Agreement are for convenience of reference only and
shall in no way modify or affect the meaning or construction of any of the terms
or provisions hereof.
SECTION 7.14 Enforcement. Each of the parties hereto acknowledges and
agrees that the rights acquired by each party hereunder are unique and that
irreparable damage would occur in the event that any of the provisions of this
Agreement to be performed by the other party were not performed in accordance
with their specific terms or were otherwise breached. Accordingly, in addition
to any other remedy to which the parties hereto are entitled at law or in
equity, each party hereto shall be entitled to an injunction or injunctions
(without the necessity of posting a bond) to prevent breaches of this Agreement
by the other party.
19
SECTION 7.15 No Waiver of Rights, Powers and Remedies. No failure or
delay by a party hereto in exercising any right, power or remedy under this
Agreement, and no course of dealing between the parties hereto, shall operate as
a waiver of any such right, power or remedy of the party. No single or partial
exercise of any right, power or remedy under this Agreement by a party hereto,
nor any abandonment or discontinuance of steps to enforce any such right, power
or remedy, shall preclude such party from any other or further exercise thereof
or the exercise of any other right, power or remedy hereunder. The election of
any remedy by a party hereto shall not constitute a waiver of the right of such
party to pursue other available remedies. No notice to or demand on a party not
expressly required under this Agreement shall entitle the party receiving such
notice or demand to any other or further notice or demand in similar or other
circumstances or constitute a waiver of the rights of the party giving such
notice or demand to any other or further action in any circumstances without
such notice or demand.
SECTION 7.16 Expenses. The Company shall pay its own and each of the
Purchasers fees and expenses (including reasonable attorneys fees, expenses,
disbursements) in connection with this Agreement and the Transaction Documents,
and the transactions contemplated hereby and thereby whether or not the
transactions contemplated hereby and thereby are consummated.
SECTION 7.17 Confidentiality. Each of the Purchasers, on the one
hand, and the Company, on the other hand, acknowledges and agrees that any
information or data it has acquired from the other, not otherwise properly in
the public domain, was received in confidence. Each party agrees not to divulge,
communicate or disclose, or use to the detriment of the disclosing party or for
the benefit of any other person or persons, or misuse in any way, any
confidential information of the disclosing party concerning the subject matter
hereof; provided that (i) the foregoing obligation with respect to the
disclosure and use of such information shall not apply to any information which
such party can reasonably demonstrate (prior to disclosure or, if immediate
disclosure is required under clause (o) below, promptly after disclosure) (A)
was at the time of disclosure to such party or thereafter, but prior to its
disclosure by such party to any third party, through no fault of such party,
publicly available (other than as a result of disclosure by such party), (B) has
been disclosed to such party on a nonconfidential basis from a source other than
any other party which, to such party's knowledge, was not prohibited from
disclosing such information to such party by a legal, contractual, fiduciary or
other obligation, (C) has been independently developed by the such party without
the violation of any of my obligations under this Agreement, or (D) is required
to be disclosed by applicable law (including, without limitation, the federal
securities laws) and (ii) such party may, if required by subpoena or valid legal
process, disclose any such information, but only to the extent so required and
only after using its best efforts to give the other party or parties (as the
case may be) prior notice of such required disclosure in order to afford such
party or parties an opportunity to obtain an injunction, a protective order or
other relief.
SECTION 7.18 Publicity. Neither the Purchasers on the one hand nor
the Company on the other hand shall issue any press release or otherwise make
any public statement with respect to the execution of, or the transactions
contemplated by, this Agreement or any of the Transaction Documents, without the
prior written consent of the other, except as may be
20
required by applicable law, rule or regulation. However, the parties recognize
that the Company is a publicly held company obligated under the Federal
securities laws to make disclosures of material events affecting it.
Consequently, if the Company is advised by its counsel that it is required to
make such announcement under Federal or state securities laws, the Company may
make such announcement. The Company agrees promptly to inform the Purchasers of
such advice by counsel, provide a copy of such announcement prior to disclosure
and, if practicable, to give the Purchasers an opportunity to comment upon the
form of any required announcement.
SECTION 7.19 Counterparts. This Agreement may be executed in one or
more counterparts, and by different parties hereto on separate counterparts,
each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument. With regard to this Agreement and any
other document relating to the transactions to be consummated under this
Agreement, a party's execution may be evidenced by, and a party's delivery may
be effected by, facsimile transmission.
SECTION 7.20 Obligations Several, Not Joint. The obligations of each
Purchaser hereinunder and under the Transactions Documents are several and not
joint. No Purchaser shall be liable for breach of this Agreement or any
Transaction Document by any other Party hereto or thereto. Notwithstanding
anything in this Agreement to the contrary, no Purchaser shall be obligated to
purchase any Shares, or consummate any other transactions contemplated by this
Agreement and the Transaction Documents unless each of the other Purchasers
shall purchase the Shares set forth opposite the name on Exhibit A and executes
and delivers this Agreement and each Transaction Document to which it is a party
or causes its affiliates or designees to execute and deliver each Transaction
Document to which it is a party.
[Remainder of page intentionally left blank]
21
IN WITNESS WHEREOF, the Company and the Purchasers have caused this
Agreement to be executed in their names by their duly authorized officers or
representatives effective as of the date first above written.
THE COMPANY:
SIGHT RESOURCE CORPORATION
By /S/ XXXXXX X. XXXXXXX
----------------------------------------
Xxxxxx X. Xxxxxxx
President & Chief Executive Officer
PURCHASERS:
/S/ E. XXXX XXXXXX
--------------------------------------------
E. XXXX XXXXXX
Number of Shares: 1,250,000
Aggregate Purchase Price: $250,000.00
EXCALIBUR INVESTMENTS B.V.
By /S/ E. XXXX XXXXXXXX
----------------------------------------
Name: Xxxx Xxxxxxxx
Number of Shares: 5,500,000
Aggregate Purchase Price: $1,100,000.00
22
LA XXXXX X.X.
By /S/ XXXXX XXXXXXX
----------------------------------------
Name: Xxxxx Xxxxxxx
Title: Chairman
Number of Shares: 3,000,000
Aggregate Purchase Price $ 600,000.00
CARLYLE VENTURE PARTNERS, L.P.
By /S/ XXXXXX XXXXX
----------------------------------------
Name: Xxxxxx Xxxxx
Title: Managing Director
Number of Shares: 1,940,295
Aggregate Purchase Price $388,059.00
CARLYLE U.S. VENTURE PARTNERS, L.P.
By /S/ XXXXXX XXXXX
----------------------------------------
Name: Xxxxxx Xxxxx
Title: Managing Director
Number of Shares: 257,335
Aggregate Purchase Price $51,467.00
C/S VENTURE INVESTORS, L.P.
By /S/ XXXXXX XXXXX
----------------------------------------
Name: Xxxxxx Xxxxx
Title: Managing Director
Number of Shares: 396,255
Aggregate Purchase Price $79,251.00
23
CARLYLE VENTURE COINVESTMENT, L.L.C.
By /S/ XXXXXX XXXXX
----------------------------------------
Name: Xxxxxx Xxxxx
Title: Managing Director
Number of Shares: 156,115
Aggregate Purchase Price $31,223.00
24
EXHIBIT A
------------------------------------------------------------------------------------------
AGGREGATE NUMBER
NAME AND ADDRESS OF AGGREGATE
OF PURCHASER SHARES PURCHASED PURCHASE PRICE
------------------------------------------------------------------------------------------
Carlyle Venture Partners, L.P.
c/o
The Carlyle Group 1,940,295 $388,059
0000 Xxxxxxxxxxxx Xxx. X.X.
Xxxxxxxxxx, XX 00000
Attn: Xxxx Xxxxxxx
------------------------------------------------------------------------------------------
Carlyle U.S. Venture Partners, L.P.
c/o
The Carlyle Group 257,335 $51,467
0000 Xxxxxxxxxxxx Xxx. X.X.
Xxxxxxxxxx, XX 00000
Attn: Xxxx Xxxxxxx
------------------------------------------------------------------------------------------
C/S Venture Investors, L.P.
c/o
The Carlyle Group 396,255 $79,251
0000 Xxxxxxxxxxxx Xxx. X.X.
Xxxxxxxxxx, XX 00000
Attn: Xxxx Xxxxxxx
------------------------------------------------------------------------------------------
Carlyle Venture Coinvestment, L.L.C.
c/o
The Carlyle Group 156,115 $31,223
0000 Xxxxxxxxxxxx Xxx. X.X.
Xxxxxxxxxx, XX 00000
Attn: Xxxx Xxxxxxx
------------------------------------------------------------------------------------------
E. Xxxx Xxxxxx
0000 Xxxxx Xxxx
Xxxxxxxxxx, Xxxx 00000-0000 1,250,000 $250,000
------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------
AGGREGATE NUMBER
NAME AND ADDRESS OF AGGREGATE
OF PURCHASER SHARES PURCHASED PURCHASE PRICE
------------------------------------------------------------------------------------------
Excalibur Investments B.V.
Xxxxxxxxxxx 00, 5,500,000 $1,100,000
1017 PP Amsterdam
Xxxxxxx 000
0000 XX
Xxxxxxxxx
With a copy to:
Xxxx Xxxxxxxx
Xxx Xxxxxxxxxxx 00
00000 Xxxxxx
XXXXX
NO EIN
------------------------------------------------------------------------------------------
La Xxxxx X.X.
c/o MEVEA s.a.r.l.
(Attention Mr. R. Meneguz) 3,000,000 $600,000
0-00 Xxxxx x' Xxxxx
X-0000 Xxxxxxxxxx
------------------------------------------------------------------------------------------
TOTALS: 12,500,000 $2,500,000
------------------------------------------------------------------------------------------
EXHIBIT B
NAME OF CARLYLE ENTITY AND
NUMBER OF DIVIDEND SHARES
TO BE ISSUED BY COMPANY TO EACH OF THEM
IN LIEU OF PAYMENT OF CASH DIVIDENDS
SET FORTH OPPOSITE NAME OF EACH OF THEM
NUMBER OF SHARES OF
COMMON STOCK
ISSUED IN LIEU OF
FISCAL QUARTER ACCRUED CASH PAYMENT OF CASH
NAME ENDED DIVIDEND DIVIDEND
Carlyle Venture Partners, L.P. 11/30/02 $358,426 1,305,025
C/S Venture Investors, L.P. 11/30/02 $73,199 266,517
Carlyle U.S. Venture Partners, L.P. 11/30/02 $47,537 173,080
Carlyle Venture Coinvestment, L.L.C. 11/30/02 $28,839 105,003
EXHIBIT C
NAME OF CARLYLE ENTITY AND NUMBER OF
CONVERSION SHARES ISSUED BY THE COMPANY
TO EACH CARLYLE ENTITY UPON CONVERSION OF
SHARES OF SERIES B STOCK SET FORTH OPPOSITE NAME OF EACH
NUMBER OF SHARES OF
COMMON STOCK ISSUED
UPON CONVERSION OF
NAME SHARES OF SERIES B
STOCK
Carlyle Venture Partners, L.P. 2,288,773
C/S Venture Investors, L.P. 467,421
Carlyle U.S. Venture Partners, L.P. 303,551
Carlyle Venture Coinvestment, L.L.C. 184,155
EXHIBIT D
ESCROW AGREEMENT
[See attached]
EXHIBIT E
PUT AND RIGHT OF FIRST REFUSAL AGREEMENT
[See attached]
EXHIBIT F
REGISTRATION RIGHTS AGREEMENT
[See attached]
EXHIBIT G
OPINION OF COUNSEL TO THE COMPANY
[See attached]
EXHIBIT H
SIXTH LOAN MODIFICATION AGREEMENT
[See attached]
