EXHIBIT 10.55
ASSET PURCHASE AGREEMENT
ASSET PURCHASE AGREEMENT
THIS ASSET PURCHASE AGREEMENT (this "Agreement") is entered into on
March ___, 2005 by and between CAMBRIDGE EYE ASSOCIATES, INC., a Delaware
corporation and XXXXXXX VISION WORLD, a Delaware corporation (each a "Seller"
and together the "Sellers"), SIGHT RESOURCE CORPORATION, a Delaware corporation
("SRC") and CAMBRIDGE EYE DOCTORS/VISION WORLD, INC. ("Buyer") as follows:
RECITALS:
A. WHEREAS, Sellers are in the business of marketing and selling to the
general public at 25 retail eye care centers in the Commonwealth of
Massachusetts, the State of New Hampshire and the State of Rhode Island (the
"Centers") eyeglass frames and lenses, contact lenses and related eyewear
accessories (the "Business"); and
B. WHEREAS, Sellers and Buyer have agreed, on the terms and subject to
the conditions of this Agreement, that Sellers shall sell to Buyer, and Buyer
shall purchase from Sellers, substantially all of the assets owned and used by
Sellers in the conduct of the Business; and
C. WHEREAS, on June 24, 2004 Sellers filed in the United States
Bankruptcy Court for the Southern District of Ohio (the "Bankruptcy Court")
voluntary petitions for relief under Title 11 of Chapter 11 of the United States
Code (the "Bankruptcy Code") and Sellers and Buyer also have agreed that this
Agreement shall be subject to the approval of the Bankruptcy Court pursuant to
Section 363 of the Bankruptcy Code so that, inter alia, the Assets (as defined
in Section 1 below) can be conveyed by Sellers to Buyer free and clear of any
interests other than the Assumed Liabilities (as defined in Section 3.2 below).
NOW, THEREFORE, in consideration of the mutual undertakings herein, and
other good and valuable considerations, the receipt and sufficiency of all of
which the parties hereby acknowledge, it is agreed that:
1. PURCHASE AND SALE OF ASSETS.
1.1 Subject Assets. Subject to approval of the Bankruptcy Court
and the entry of the Sale Order (as defined in Section 8.1 below), on the terms
and subject to the conditions of this Agreement, at the Closing (as defined in
Section 5 below) Buyer shall purchase from Sellers and Sellers shall sell,
transfer, convey and deliver to Buyer all of Sellers' direct and indirect
rights, titles and interests in and to the following tangible and intangible
property owned, leased or otherwise used by Sellers in connection with the
operation of the Business (the "Assets"):
(a) Inventory. All eyeglass frames and lenses, contact lenses,
related eyewear accessories and other inventory owned by Sellers or SRC and
located in or at the Centers together with all contact lens and other inventory
located in Cincinnati or any other location or on order as of the Closing Date;
(b) FFE. All office furniture and equipment, optical
equipment, appliances, display cases, fixtures, supplies, accessories and other
tangible personal property located in or at the Centers including, without
limitation, the personal property described on the attached Exhibit A (the
"FFE");
(c) Accounts Receivable. All of Sellers' accounts receivable
(including, without limitation, receivables written-off by Sellers) other than
any inter-company accounts;
(d) Leases. All real property leases 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;
(e) Contracts. All of Sellers' managed care contracts, written
agreements with professional corporations employing doctors listed on the
attached Exhibit C, stock pledge agreements relating to such professional
corporations and other written or oral customer contracts, agreements and
commitments (including customer deposits) (collectively, the "Assumed
Contracts");
(f) Intellectual Property. The names "Cambridge Eye
Associates" and "Xxxxxxx Vision World" and all related service marks, logos and
other proprietary rights and intellectual property under, by and through which
Sellers conduct the Business including, without limitation: (i) all signs,
kiosks and other advertising media; (ii) all stocks of business forms and
promotional literature that contains or makes reference to Cambridge Eye
Associates or Xxxxxxx Vision World; (iii) all presently existing telephone
numbers for each of the Centers to the extent such numbers are transferable;
(iv) the "Sight-Care" trademark and all related material; and (v) all government
permits and licenses relating to the operation of the Businesses to the extent
assignable without the consent of any party (the "Intellectual Property");
(g) Books and Records. All books and records including,
without limitation, Sellers' hard copies and electronic versions of the
accounting records, customer lists, patient records, manuals, personnel,
employment and payroll files, promotional materials, business forms, permits,
licenses, titles and other written, printed or electronic information of any
kind used by Sellers to conduct the Business, including without limitation all
data and information in the Sellers' POS Delta System and any and all other
records and information (the "Books and Records");
(h) Prepaid Expenses. All prepaid expenses including, without
limitation, prepaid insurance premiums and advertising costs except for those
prepaid expenses listed on the attached Exhibit D; and
(i) Computers. All computer hardware, all computer software
and software licenses owned by Sellers or SRC to the extent transferable to
Buyer, and all communications equipment and software located at any of the
Centers and at 0000 Xxxxx Xxxxxx, Xxxxxxxxxx, Xxxx other than the main Delta
Systems server and the following items to be selected by Sellers: two desktop
PCs; two Toshiba laptop PCs, two printers and one fax machine.
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1.2 "As Is" Transaction. Buyer hereby acknowledges and agrees
that, except as otherwise expressly provided in this Agreement, Sellers make no
representations or warranties of any kind whatsoever, express or implied, with
respect to any matter relating to the Assets or otherwise relating to any of the
transactions contemplated hereby including, without limitation, any income to be
derived or expenses to be incurred in connection with the Assets or the conduct
of the Business, the physical condition of any tangible Assets or improvements
which are the subject of any Store Leases to be assumed by Buyer at the Closing,
the value of the Assets, the terms or amounts of any Assumed Liabilities, or the
merchantability or fitness of the Assets for any particular purpose.
Accordingly, subject to the representations, warranties and covenants expressly
set forth in this Agreement Buyer shall accept the Assets at the Closing "AS
IS," "WHERE IS" AND "WITH ALL FAULTS."
2. EXCLUDED ASSETS. Buyer shall not purchase or otherwise acquire from
Sellers, and Sellers shall retain all of their respective rights, titles and
interests in and to: (a) all cash, cash equivalents, bank accounts as of the
Closing Date and securities of Sellers; (b) all causes of action and claims
which Sellers may have under Sections 506, 510, 542 through 551 inclusive and
553 of the Bankruptcy Code; and (c) all assets not specifically enumerated in
Section 1 above.
3. RETENTION AND ASSUMPTION OF LIABILITIES.
3.1 Liabilities Retained by Sellers. Subject to Section 3.2
below, and except as otherwise expressly provided in this Agreement, Sellers
shall remain solely and entirely responsible for their own liabilities and Buyer
shall not assume or otherwise be liable for or acquire the Assets subject to,
and Buyer's purchase of the Assets shall not constitute or be deemed to
constitute the assumption of, any liabilities of Sellers whatsoever, whether
direct or indirect, fixed or contingent, disputed or undisputed, liquidated or
unliquidated, known or unknown, recorded or unrecorded.
3.2 Liabilities Assumed by Buyer. Buyer shall pay and otherwise
perform when due the obligations of Sellers: (a) under the Store Leases and the
Assumed Contracts relating to periods after the Closing Date (as defined in
Section 5 below); and (b) to Sellers' current employees only for post-petition
accrued but unused PTO (paid time-off) including, without limitation, accrued
but unused sick leave, family leave and vacation time for those employees that
Buyer, in the exercise of its sole judgment, elects to employ as provided in
Section 3.3 below (collectively the "Assumed Liabilities").
3.3 Sellers' Employees. Buyer shall have the right, but not the
obligation, to employ any present employee of Sellers or SRC. Buyer shall have
no responsibility or liability as a result of Buyer's acquisition of the Assets,
or its employment of any such employees, with respect to contributions to or
obligations for any of Sellers' or SRC's employee benefit plans, any
multi-employer pension plan to which Sellers or SRC may contribute or, except as
provided in Section 3.2 above, any other liability or employee fringe benefit of
Sellers or SRC which is due or unsatisfied as of the Closing.
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4. PURCHASE PRICE.
4.1 Amount. The purchase price for the Assets shall be: (a)
$1,844,856, which shall be allocated as follows:
Inventory $ 750,000
FFE $ 240,000
Accounts Receivable $ 425,000
Store Leases and Assumed Contracts $ 200,000
Intellectual Property and
Books and Records $ 229,856
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$ 1,844,856
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. Sellers and Buyer shall
file all tax and other returns in a manner consistent with such allocations and
shall take no position contrary thereto.
4.3 Prorations. All payments from doctors in accordance with the
PC Agreements, all lease and rental charges (including, without limitation, rent
and other amounts payable by Sellers under the Store Leases), and all monthly
utility charges shall be prorated between Sellers and Buyer as of the Closing
Date, with Sellers being responsible for, and entitled to the benefit of, all
such charges and payments relating to periods prior to the Closing Date and
Buyer being responsible for, and entitled to the benefit of, all such charges
and payments, on and after the Closing Date. Should either Sellers or Buyer pay
any such charges for which the other party is responsible, then the responsible
party shall promptly reimburse the other party therefor. Should either Sellers
or Buyer receive any revenues to which the other party is entitled, then such
revenues shall promptly be paid over to the appropriate party.
4.4 Transfer Taxes. Buyer shall pay all federal, state and local
sales, use, transfer, documentary stamp, conveyance, recording, conveyance and
similar taxes arising out of, in connection with or related to the transactions
contemplated by this Agreement.
5. CLOSING. The closing of the transactions contemplated by this
Agreement (the "Closing") shall take place within three days of the date the
Court enters the Sale Order or at such other date and time to which the parties
may agree (the "Closing Date"). At the Closing:
5.1 Buyer's Payments and Deliveries. Buyer shall deliver to
Sellers:
(a) the sum of $1,700,000, plus or minus any adjustments
provided for in this Agreement, in immediately available funds by wire transfer
to a bank account designated by Sellers;
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(b) a release from J. Xxxxxx Xxxxx of his claim of $144,856
against any of SRC or any of its affiliates including, without limitation,
Sellers;
(c) one or more agreements effecting the assumption by Buyer
of the Assumed Liabilities;
(d) a certified copy of the consent of the members or managers
or directors of Buyer authorizing and directing Buyer to enter into and perform
its obligations under this Agreement; and
(e) such other documents, instruments and deliveries as Seller
reasonably may request.
5.2 Sellers' Deliveries. Sellers shall deliver to Buyer:
(a) a xxxx of sale conveying all of the Assets to Buyer;
(b) one or more agreements effecting Sellers' assignment to
Buyer of the Store Leases and Assumed Contracts;
(c) a certified copy of the consent of the boards of directors
of Sellers authorizing and directing Sellers to enter into and perform their
obligations under this Agreement;
(d) the Non Competition Agreement (as defined in Section 11
below) executed by Sellers 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 the close of business
for the Centers on the Closing Date (the "Effective Time"). Buyer shall be given
possession of the Assets at the Effective Time. Until the Effective Time, all
employees of Seller shall continue to be its employees, and all business
operations of Sellers shall be for Sellers' account and risk and Sellers shall
bear all risk of loss.
6. REPRESENTATIONS AND WARRANTIES OF SELLERS. If and only to the extent
that under applicable federal, state or local law the breach of any of the
following representations or warranties would result in, or fail to disclose, a
lien upon or claim against the Assets, or result in a claim against Buyer for a
liability of Sellers (other than the Assumed Liabilities), and subject to their
obligations as debtors-in-possession under the Bankruptcy Code, Sellers hereby
jointly and severally represent and warrant to and covenants with Buyer that:
6.1 Organization. Each Seller is a corporation duly organized,
validly existing and in good standing under the laws of the State of
Delaware
and is the sole owner of its Assets. Subject to its obligations as a
debtor-in-possession under the Bankruptcy Code, each Seller has full authority
and power to carry on the Business as it is now conducted.
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6.2 Authority and Enforceability.
(a) Each Seller has and at the Closing will have all requisite
power, right and authority to enter into this Agreement and to consummate the
transactions contemplated by this Agreement. All action required under
applicable law has been or will be taken by the board of directors of each
Seller to authorize each Seller's execution of, and the consummation of the
transactions contemplated by, this Agreement. This Agreement and each other
agreement and instrument to be executed by each Seller in connection herewith
have been (or upon execution will have been) duly executed and delivered by each
Seller and constitute (or upon execution will constitute) legal, valid and
binding obligations of each Seller enforceable against each Seller in accordance
with their respective terms.
(b) All consents, approvals and authorizations and all other
requirements prescribed by any law, rule or regulation which must be obtained or
satisfied by each Seller and which are necessary for the execution and delivery
by each Seller of this Agreement and the documents to be executed and delivered
by each Seller in connection herewith and in order to permit the consummation of
the transactions contemplated by this Agreement have been obtained and satisfied
or will be obtained and satisfied by the Closing.
6.3 No Violation or Conflict. The execution and delivery of this
Agreement, the consummation of the transactions contemplated hereby and the
fulfillment of the terms hereof will not violate or result in a breach of any of
the terms or provisions of, or constitute a default (or an event which, with
notice or the passage of time, or both, would constitute a default) under, or
conflict with or result in the termination of, or accelerate the performance
required by any: (a) agreement, indenture, contract or other instrument to which
either Seller is a party or by which either Seller or the Assets are bound
except the loan agreements between Sellers and CadleRock Joint Venture, L.P.;
(b) each Seller's Articles of Incorporation; (c) any judgment, decree, order or
award of any court, governmental body or arbitrator by which either Seller or
the Assets are bound; or (d) any law, rule or regulation applicable to Sellers
or the Assets.
6.4 Title to Assets. Each Seller has good title to, is the sole
lawful owner of, and has the right to use all of its Assets and at the Closing
will transfer the Assets to Buyer free and clear of all liens, mortgages,
leases, pledges, security interests, restrictions, prior assignments,
encumbrances and claims of any kind or nature.
6.5 Store Leases and Assumed Contracts. Sellers have made all
required post-petition payments under the Store Leases and the Assumed Contracts
and otherwise are in substantial compliance with their post-petition obligations
thereunder. In connection with the Sale Motion (as defined in Section 8.1 below)
and upon the entry of the Sale Order (as defined in Section 8.1 below), Sellers
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 Sellers to
assume and to assign to Buyer at the Closing the Store Leases and Assumed
Contracts.
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6.6 Employment Matters.
(a) There are: (i) no pending or, to the knowledge of Sellers,
threatened claims by any employee of either Seller (each, an "Employee") or any
person who in the past has worked for either Seller (each, a "Former Employee")
against either Seller, other than for compensation and benefits due in the
ordinary course of employment; and (ii) no pending or, to the knowledge of
Sellers, threatened claims against either Seller arising out of any statute,
ordinance or regulation relating to employment practices or occupational or
safety and health standards. Subject to Section 3.2(b) above, Sellers are and
after the Closing shall remain responsible for all Employee and Former Employee
claims against Sellers arising out of events or transactions occurring prior to
Closing.
(b) Schedule 6.6 hereto identifies all Employees on leave of
absence and all Employees and Former Employees and their dependents receiving
health benefits, or eligible to receive health benefits, as required by the
Consolidated Omnibus Budget Reconciliation Act of 1985, as amended ("COBRA").
Notice of the availability of health care continuation coverage for Employees,
Former Employees and their respective dependents and qualified beneficiaries, in
accordance with the requirements of COBRA, has been provided to all persons
entitled thereto, and all persons electing such coverage are being (or have
been, if applicable) provided such coverage.
6.7 Employee Benefit Plans. Schedule 6.7 hereto lists all
qualified and non-qualified plans, programs, agreements, commitments and
arrangements maintained by or on behalf of Sellers that provide benefits or
compensation to, or for the benefit of, any Employee or Former Employee (the
"Plans"). To the knowledge of Sellers, all of the Plans are in substantial
compliance with the Employee Retirement Income Security Act of 1974, as amended
("ERISA"), and the Internal Revenue Code. Nothing in this Section 6.7 shall be
construed to create an obligation on the part of the Buyer to assume or succeed
to any obligation of Sellers under Sellers' Plans or to continue such Plans for
any of those employees of Sellers that Buyer elects to employ in accordance with
Section 3.3 hereof and Sellers are and after Closing shall remain responsible
for continuation or termination of such Plans as they shall elect.
6.8 Taxes. Except as disclosed on Schedule 6.8 hereto, to the
knowledge of Sellers they have collected or withheld, and 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. Sellers are and after the Closing shall remain
responsible for all federal, state and local taxes, employment taxes and workers
compensation premiums attributable to Sellers' ownership of the Assets and
operation of the Business prior to the Closing.
6.9 Litigation. Except as disclosed on Schedule 6.9, to the
knowledge of Sellers there is no action, suit, proceeding or investigation to
which either Seller or any Center is a party (either as a plaintiff or
defendant) presently pending, nor has any such action, suit, proceeding or
investigation been pending at any time during the past two years, before any
court or governmental agency, authority or body or arbitrator; to the knowledge
of Sellers, there is no action, suit, proceeding or investigation threatened
against either Seller and, to the knowledge of Sellers, there is no basis for
any such action, suit, proceeding or investigation.
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6.10 Compliance with Law. To the knowledge of Sellers, they are
in substantial compliance with all laws, regulations, rules, permits, zoning
requirements, authorizations, licenses and certificates required under
applicable law for the conduct of the Business. To the knowledge of Sellers: (a)
no default or violation, or event that with the lapse of time or the giving of
notice, or both, would become a default or violation, has occurred in its
compliance with each such law, regulation, rule, permit, authorization, license
and certificate; and (b) no action has been taken or recommended by any
governmental, regulatory or administrative official, agency or authority, to
revoke, withdraw or suspend any authorization, license or certificate necessary
for Sellers to own the Assets or to operate the Business.
7. REPRESENTATIONS AND WARRANTIES OF BUYER. Buyer represents and
warrants to and covenants with Sellers that:
7.1 Organization. Buyer is a corporation duly organized,
validly existing and in good standing under the laws of the Commonwealth of
Massachusetts and prior to the closing will be qualified to do business in the
States of New Hampshire and Rhode Island. Buyer will have full power and
authority to carry on its business as it is now conducted.
7.2 Authority and Enforceability.
(a) Buyer has and at the Closing will have all requisite
power, right and authority to enter into, and to consummate the transactions
contemplated by, this Agreement. All action required under applicable law has
been taken by the members or managers 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.
7.3 No Violation or Conflict. The execution and delivery of this
Agreement, the consummation of the transactions contemplated hereby and the
fulfillment of the terms hereof will not violate or result in a breach of any of
the terms or provisions of, or constitute a default (or any event which, with
notice or the passage of time, or both, would constitute a default) under, or
conflict with or result in the termination of, or accelerate the performance
required by: (a) any agreement, indenture or other instrument to which Buyer is
a party or by which it is bound; (b) Buyer's articles of organization or
operating agreement; (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.
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8. COVENANTS.
8.1 Bankruptcy Court Approval.
(a) Promptly after the execution of this Agreement by the
parties, Sellers and SRC shall file with the Bankruptcy Court a motion (the
"Sale Motion") which asks the Bankruptcy Court to enter, unless Sellers and SRC
receive a higher and better offer for the Assets in accordance with Section
8.1(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 Sellers and SRC to transfer to Buyer, the Assets free and
clear of any and all liens (other than liens that Buyer has agreed to permit or
assume hereunder or hereafter) pursuant to Section 363(f) of the Bankruptcy
Code; and (iii) approving the assumption by Sellers and SRC and assignment to
Buyer of the Store Leases and Assumed Contracts and authorizing the payment by
Sellers and SRC 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 Sellers,
SRC and Buyer to their reasonable satisfaction.
(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 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
Sellers and SRC 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 Sellers and SRC a $150,000 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 $100,000 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 $50,000 more than the immediately
preceding offer; and (v) any such person or entity provides evidence
satisfactory to Sellers and SRC verifying that the offeror has the ability to
provide the full amount of the purchase price to Sellers and SRC in immediately
available funds at the Closing.
(c) The Sale Motion also shall ask that the Bankruptcy Court
order the Sellers and SRC 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 $50,000.
(d) Subject to Section 12.1(c) below, Sellers and SRC shall
use their good faith best efforts to prosecute the Sale Motion to a successful
conclusion and otherwise comply with all applicable requirements of the
Bankruptcy Code and the Bankruptcy Rules applicable thereto.
8.2 Due Diligence. From the date of this Agreement through the
Closing Date, Sellers and SRC shall provide Buyer and its representatives and
agents full access at all reasonable times to the Assets and the operation of
the Business, cause Sellers' and SRC's representatives to furnish Buyer with
such financial and operating data and other information in
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Sellers' and SRC's possession or control with respect to the Assets and the
Business as Buyer shall from time to time reasonably request so as to permit
Buyer to conduct prior to the Closing a complete due diligence investigation of
the Assets and the Business; provided that such investigation: (a) shall be
conducted in such manner as not to interfere unreasonably with Sellers'
operation of the Business; and (b) shall not affect any of the representations
and warranties of Sellers hereunder.
8.3 Conduct of the Business. Subject to their obligations as
debtors-in-possession under the Bankruptcy Code, from the date of this Agreement
through the Closing Sellers and SRC shall not (except with the prior written
consent of Buyer): (a) enter into any material transaction not in the ordinary
course of the Business; (b) sell or transfer any of the Assets except for sales
in the ordinary course of the Business of inventory or immaterial amounts of
other tangible personal property not required in the Business; (c) mortgage,
pledge or encumber any of the Assets, except liens for taxes not yet due and
payable, and existing lender indebtedness; (d) amend, modify or terminate any
Store Lease or Assumed Contract; or (e) make any increase in, or any commitment
to increase, the benefits or compensation payable to any of its employees or
agents.
8.4 Closing Conditions. Prior to the Closing, Sellers and SRC
shall use their best efforts to obtain any necessary third party consents to the
transfer of the Store Leases and Assumed Contracts and otherwise to assist Buyer
in the satisfaction of all of Buyer's other conditions of Closing set forth in
Section 9.2 below.
9. CONDITIONS TO CLOSING.
9.1 Conditions to Obligations of Each Party. The obligations of
Buyer and Sellers to consummate the transactions contemplated hereby shall be
subject to the fulfillment, on or prior to the Closing Date, of the following
conditions:
(a) The Bankruptcy Court shall have entered the Sale Order in
form and substance to the reasonable satisfaction of Sellers and 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 Sellers, or other relief, in connection therewith.
9.2 Conditions to Obligations of Buyer. The obligations of Buyer
to consummate the transactions contemplated hereby shall be subject to the
fulfillment, at or prior to the Closing, of the following additional conditions:
(a) The representations and warranties of Sellers contained in
this Agreement or in any other document delivered by Sellers to Buyer pursuant
hereto shall have been true and correct as of the date of this Agreement or when
otherwise given and shall be true and correct on the Closing Date as if made on
the Closing Date;
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(b) Each of the obligations of Sellers to be performed by them
on or before the Closing Date pursuant to the terms of this Agreement shall have
been duly performed by them on or before the Closing Date;
(c) All actions required to be taken by, or on the part of,
Sellers to authorize the execution, delivery and performance of this Agreement
and the consummation of the transactions contemplated hereby shall have been
duly and validly taken by Sellers;
(d) Between the date of this Agreement and the Closing Date
there shall not have occurred any damage or destruction of, or loss to, any of
the Assets, whether or not covered by insurance, which has had or may reasonably
be expected to have a material and adverse effect on the Business or any
prospects of the Business; and
(e) All legal matters and the form and substance of all
documents to be delivered to Buyer shall have been approved by Buyer's counsel.
9.3 Conditions to Obligations of Sellers. The obligations of
Sellers to consummate the transactions contemplated hereby shall be subject to
the fulfillment, at or prior to the Closing Date, of the following additional
conditions:
(a) The representations and warranties of Buyer contained in
this Agreement or in any other document delivered by Buyer to Sellers pursuant
hereto shall have been true and correct in all material respects as of the date
of this Agreement or when otherwise given and shall be true and correct in all
material respects on the Closing Date with the same effect as if made on the
Closing Date;
(b) Each of the obligations of Buyer to be performed by it on
or before the Closing Date pursuant to the terms of this Agreement shall have
been duly performed by it on or before the Closing Date; and
(c) All legal matters and the form and substance of all
documents to be delivered to Sellers shall have been approved by Sellers'
counsel.
10. POST-CLOSING ACCESS. Sellers shall have the right for a period of
three years following the Closing Date to reasonable access to the Books and
Records transferred to Buyer pursuant to the terms of this Agreement (including,
without limitation, remote access to the Microsoft Exchange Server and the
Payroll Server) for the limited purposes of concluding its involvement in the
Business after the Closing Date and obtaining information reasonably necessary
in connection with any income or other tax issues.
11. NON-COMPETITION. Sellers and SRC shall enter into a non-competition
agreement prohibiting the ownership, operation, or participation in any manner
by Sellers, SRC and/or other subsidiaries or affiliates of SRC in any retail eye
glass store in competition with Buyer in the Commonwealth of Massachusetts, the
State of New Hampshire and the State of Rhode Island for a three (3) year period
commencing on the Effective Time (the "Non-Competition Agreement'). "Affiliate"
as used in this Section 11, means any entity who controls, is controlled by, or
is under common control with Sellers or SRC.
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12. TERMINATION; REMEDIES.
12.1 Termination Requiring Notice. This Agreement and the
transactions contemplated hereby may be terminated at any time prior to Closing
by written notice delivered by Sellers to Buyer or by Buyer to Sellers, as the
case may be, in the following instances:
(a) By Buyer if there has been a misrepresentation, a breach
of warranty or a failure to comply on the part of Sellers with respect to any of
the representations, warranties, covenants or provisions set forth herein (or
delivered in any other document pursuant hereto).
(b) By Sellers if there has been a misrepresentation, a breach
of warranty or a failure to comply with any covenant on the part of Buyer with
respect to the representations, warranties or covenants set forth herein (or
delivered in any other document pursuant hereto).
(c) By Sellers if Sellers receive at the Sale Hearing a higher
and better offer to purchase all or substantially all of the Assets which offer,
taken as a whole, Sellers determine in their sole discretion to be in the best
interests of Sellers and their creditors.
(d) At any time prior to Closing by the mutual consent in
writing of Sellers and Buyer.
12.2 Termination Without Notice. This Agreement and the
transactions contemplated hereby shall automatically terminate without notice if
the Closing does not occur on or before April 15, 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 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.
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13.3 Successors and Assigns. This Agreement and all of the
provisions hereof shall be binding upon and inure to the benefit of the parties
hereto and their respective successors and permitted transferees and assignees.
13.4 Assignment. Neither this Agreement nor any interest herein
may directly or indirectly be transferred or assigned by any party, in whole or
in part, without the written consent of the other parties except that Buyer may
assign its rights and obligations under this Agreement to an affiliated
corporation or limited liability company.
13.5 Notices. All notices, requests, demands, and other
communications which may or are required to be delivered hereunder shall be in
writing and shall be delivered by hand delivery, by facsimile transmission
(receipt confirmed), by express mail service, or by registered or certified
mail, postage prepaid, at or to the following addresses:
If to Seller:
Sight Resource Corporation
c/o Xxxxx X. Xxxxxxxx, Esq.
Xxxxxxxx Xxxx LLP
Suite 1400
000 Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxx 00000
Fax: (000) 000-0000
If to Buyer:
J. Xxxxxx Xxxxx
00 Xxxxx'x Xxxxx Xxx X
Xxxxxxxxx, Xxxxxxxxxxxxx 00000
Fax: (000) 000-0000
with a copy to:
Xxxxxx X. Xxxxx
000 Xxxxx Xxxxxx Xxxxxx
Xxxxxx Xxxxx, Xxxx 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.
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13.7 Severability. If any term or provision of this Agreement or
any application thereof shall be invalid or unenforceable, the remainder of this
Agreement and any other application of such term or provision shall not be
affected thereby.
13.8 No Third Party Beneficiary. This Agreement is for the
benefit of, and may be enforced only by, Sellers and Buyer, and their respective
successors and permitted transferees and assignees, and is not for the benefit
of, and may not be enforced by, any third party.
13.9 Expenses. Subject to Section 4.4 above, each party hereto
shall bear and pay all costs and expenses incurred by it in connection with the
transactions contemplated by this Agreement including, without limitation, fees,
costs and expenses of its own financial consultants, accountants and counsel.
13.10 Applicable Law. This Agreement shall be governed by and
construed and enforced in accordance with, the laws of the State of
Delaware.
13.11 Counterparts. This Agreement may be executed in any number
of counterparts, each of which shall be an original but all of which together
shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have executed this
Asset
Purchase Agreement as of the date first hereinabove set forth.
SELLERS: BUYER:
CAMBRIDGE EYE ASSOCIATES, INC. CAMBRIDGE EYE DOCTORS/VISION WORLD, INC.
----------------------------------------
By: /s/ XXXX X. XXXXXX By: /s/ XXXXXX X. XXXXX
--------------------------------- -------------------------------------
Title: President Title: Xxxxxx X. Xxxxx, President
------------------------------ ----------------------------------
XXXXXXX VISION WORLD, INC.
SIGHT RESOURCE CORPORATION
By: /s/ XXXX X. XXXXXX By: /s/ XXXX X. XXXXXX
--------------------------------- -------------------------------------
Title: President Title: President
----------------------------- ----------------------------------
-00-
XXXXXXXXX XXX ASSOCIATES, INC./XXXXXXX VISION WORLD, INC.
ASSET PURCHASE AGREEMENT
EXHIBIT A
FIXED ASSET LISTS
CAMBRIDGE EYE ASSOCIATES, INC./XXXXXXX VISION WORLD, INC.
ASSET PURCHASE AGREEMENT
EXHIBIT B
STORE LEASES
Store #
-------------------
1 Vision World 0000 XXXXXXX XXX. XXXXXXXX XX 00000
2 Vision World 0000 XXXXXXXXX XXX. X. XXXXXXXXXX XX 00000
4 Vision World 0000 XXXXXXX XXXXXX X. XXXXXXXXXX XX 00000
AVE.
5 Vision World 000 XXXX XXXX XXXX XXXXXXXXXX XX 00000
6 Vision World 000 XXXXXXXXX XXXX XXXXXXXXX XX 00000
7 Vision World 000 XXXXXX XXX. XXXXXXXX XX 00000
101 Cambridge Eye 0000 XXXXXXXXXXXXX XXXXXXXXX XX 00000
AVE.
102 Cambridge Eye 726-1/2 BELOMONT XXXXXXXX XX 00000
STREET
103 Cambridge Eye 000 Xxxxxxx Xxxxxx Xxxxxxxxx XX 00000
000 Xxxxxxxxx Xxx 000 XXXXXXXXX XX. XXXXXXXXXX XX 00000
000 Xxxxxxxxx Xxx 000 XXXXXXXX XX. XXXXXXX XX 00000
000 Xxxxxxxxx Xxx 000 Xxxxxxx Xxxxxx Xxxxxxxxx XX 00000
000 Xxxxxxxxx Xxx 000 XXXXX XXXX X. XXXXXXXXX XX 00000
000 Xxxxxxxxx Xxx 000 XXXXXX XXXX XXXXXXXXX XX 00000
000 Xxxxxxxxx Xxx 000 XXXXXXXX XXXXXX XXXXXX XX 00000
000 Xxxxxxxxx Xxx 000 XXXXXXXX XXXX XXXXXXX XX 00000
000 Xxxxxxxxx Xxx 0000 Xxxxxx Xxxxxx XXXXXXXXX XX 00000
113 Cambridge Eye XXX XXXXXXXX XXX. XXXXXX XX 00000
STE 3B
000 Xxxxxxxxx Xxx XX. 000 XXXXXXXX XX 00000
STE 160
116 Cambridge Eye 000 Xxxxxxxxxx XXXX Xxxxxx XX 00000
117 Cambridge Eye 0 Xx. Xxxxxx Xx Xxxxxxxxx XX 00000
Suite 2
118 Cambridge Eye 000 Xxxxx Xxxxxxxx Xxxxx XX 00000
000 Xxxxxxxxx Xxx 000 XXXXXXXX XXXXXXX XXXXXXXX XX 00000
DR.
000 Xxxxxxxxx Xxx 000 XXXXX XXXXXX XXXXXX XX 00000
000 Xxxxxxxxx Xxx 00 XXXXX XXXXXXX XX. XXXXXXXX XX 00000
Subleases:
Sublease dated March 1, 1998 between Cambridge Eye Doctors and Little Tibet for
premises located at 0000 Xxxxxxxxxxxxx Xxx., Xxxxxxxxx, Xx. Note rent being paid
by tenant is not in agreement with lease terms. Verbal agreement is in place.
Sublease dated January 12, 1999 between
Sight Resource Corporation and
Enterprise Rent-A-Car Company of Rhode Island for premises located at 000 Xxxxx
Xxxx, Xxxxx Xxxxxxxxx, Xx.
Sublease dated March 19, 1999 between
Sight Resource Corporation and New England
Mobile Communications for premises located at 000 Xxxxx Xxxx, Xxxxx Xxxxxxxxx,
Xx.
CAMBRIDGE EYE ASSOCIATES, INC./XXXXXXX VISION WORLD, INC.
ASSET PURCHASE AGREEMENT
EXHIBIT C
ASSUMED CONTRACTS
Harvard Pilgrim Health Care, Inc.
Commonwealth of Massachusetts NAGE Health and Welfare Trust Fund
Management Agreement between Optometric Care, Inc. and Xxxxxxx Vision World,
Inc.
Management Agreement between Optomoetric Providers, Inc. and CEA Acquisition
Corp.
Agreement with Xx. Xxxxxxx Xxxxxxx (OPI)
Agreement with Dr. Xxxxx Xxxx (OPI)
Agreement with Xx. Xxxxxxx Xxxxxx (OPI)
Agreement with Dr. Xxxxxx Stronjy (OPI)
Agreement with Xx. Xxxxx Xxxxx (OPI)
Agreement with Xx. Xxxxx Xxxxxxx (OPI)
Agreement with Xx. Xxxxxxxxxxx Xxxxxx (OPI)
Agreement with Dr. M. Xxxxxx Xxxxxxx (OPI)
Agreement with Dr. Xxxxx Xxxxx (OPI)
Agreement with Xx. Xxxxxx Rezelbach (OPI)
Agreement with Xx. Xxxxxxx Xxxxxxxxxxx (OCI)
Agreement with Xx. Xxxxxxx Xxx (OCI)
CAMBRIDGE EYE ASSOCIATES, INC./XXXXXXX VISION WORLD, INC.
ASSET PURCHASE AGREEMENT
EXHIBIT D
EXCLUDED PREPAID EXPENSES
All trade vendor prepayments
CAMBRIDGE EYE ASSOCIATES, INC./XXXXXXX VISION WORLD, INC.
ASSET PURCHASE AGREEMENT
SCHEDULE 6.6
EMPLOYEES ON LEAVE OF ABSENCE, COBRA, ELIGIBLE FOR COBRA OR INVOLVED WITH
WORKERS COMPENSATION CLAIM AND OTHER CLAIMS:
Xxxxx Xxxxx-Xxxxx - Vision World Workers Comp (Jan. 3rd slip and fall- still
working)
Xxxxxx Xxxxxxx- Cambridge Eye Has filed for Short Term disability to begin May
6, 2005 and return to work July 5, 2005 for maternity leave.
Xx. Xxxxxxx Xxxxxxx- Head of both OD professional corporations. He serves in an
administrative capacity only, does not actively practice optometry, and is not
on the payroll. He is a participant on the OD group health Dental Plan and pays
employee rates.
The State of New Hampshire notified Cambridge Eye Doctor in July 2004 that its
store located at 000 Xxxxxxxx, Xxxxx, XX. was in violation of State pay
requirements because pay checks were being issued bi-weekly without permission
from the State.
CAMBRIDGE EYE ASSOCIATES, INC./XXXXXXX VISION WORLD, INC.
SSET PURCHASE AGREEMENT
SCHEDULE 6.7
Employee Benefit Plans
1)
Sight Resource Corporation 401(k) Plan (unaudited)
2) Dental Insurance Plan (Met Life)
3) Health Insurance Plan (GISC- associates, UHC- ODs)
4) Basic term life insurance (Met Life)
5) Short Term Disability (Met Life)
6) Long Term Disability (Met Life)
CAMBRIDGE EYE ASSOCIATES, INC./XXXXXXX VISION WORLD, INC.
ASSET PURCHASE AGREEMENT
SCHEDULE 6.8
Taxes
Sellers have not filed Federal, State or local taxes since 2001
CAMBRIDGE EYE ASSOCIATES, INC./XXXXXXX VISION WORLD, INC.
ASSET PURCHASE AGREEMENT
SCHEDULE 6.9
INTELLECTUAL PROPERTY LITIGATION
Vision World LLC v.
Sight Resource Corporation, Case No. 1:05CV106 (S.D. Ohio)
