Exhibit 99.1
COMMON STOCK PURCHASE AGREEMENT
by and among
SIGHT RESOURCE CORPORATION
and
THE PERSONS LISTED ON EXHIBIT A HERETO
Dated as of May 31, 2001
TABLE OF CONTENTS
ARTICLE I DEFINITIONS..................................................... 2
Section 1.01 Definitions.............................................. 2
ARTICLE II PURCHASE AND SALE OF THE SHARES................................ 3
Section 2.01 Purchase and Sale of the Shares.......................... 3
ARTICLE III MERGER........................................................ 4
Section 3.01 Merger Agreement......................................... 4
ARTICLE IV CONDITIONS TO CLOSING.......................................... 4
Section 4.01 Mutual Conditions to Closing............................. 4
Section 4.02 Conditions to Purchaser's Obligations.................... 4
Section 4.03 Conditions to Company's Obligations...................... 6
ARTICLE V REPRESENTATIONS AND WARRANTIES.................................. 6
Section 5.01 Representations and Warranties of the Company............ 6
Section 5.02 Representations and Warranties of the Purchasers......... 9
ARTICLE VI COVENANTS...................................................... 10
Section 6.01 Performance.............................................. 10
Section 6.02 Cooperation.............................................. 10
Section 6.03 Issuance of Additional Shares............................ 11
ARTICLE VII LIMITATIONS AND RESTRICTIONS.................................. 11
Section 7.01 Restrictions on Sales by Purchasers...................... 11
Section 7.02 Registration Rights...................................... 11
Section 7.03 Carlyle Registration..................................... 12
Section 8.01 Notices.................................................. 12
Section 8.02 Legends.................................................. 12
Section 8.03 Termination.............................................. 13
Section 8.04 Action by Purchasers..................................... 13
Section 8.05 Entire Agreement......................................... 13
Section 8.06 Modifications and Amendments............................. 13
Section 8.07 Waivers and Consents..................................... 13
Section 8.08 Assignment............................................... 13
Section 8.09 Benefit.................................................. 14
Section 8.10 Governing Law............................................ 14
Section 8.11 Severability............................................. 14
Section 8.12 Interpretation........................................... 14
Section 8.13 Headings and Captions.................................... 14
Section 8.14 Enforcement.............................................. 14
Section 8.15 No Waiver of Rights, Powers and Remedies................. 14
Section 8.16 Expenses................................................. 15
Section 8.17 Confidentiality.......................................... 15
Section 8.18 Publicity................................................ 15
Section 8.19 Counterparts............................................. 15
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COMMON STOCK PURCHASE AGREEMENT
THIS COMMON STOCK PURCHASE AGREEMENT (this "Agreement"), dated as of the
31st day of May, 2001 (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").
WHEREAS, the Purchasers desire to acquire and the Company is willing to
issue and sell to the Purchasers shares of Common Stock, par value $.01 per
share (the "Common Stock"), of the Company, subject to the terms and
conditions specified herein;
WHEREAS, the Company entered into an Agreement and Plan of Merger (the
"Merger Agreement") with xxxxxxx.xxx, inc., a Delaware corporation
("Eyeshop"), and Eyeshop Acquisition Corp., a Delaware corporation and wholly-
owned subsidiary of the Company ("EAC"), on May 23, 2001;
WHEREAS, upon the adoption of the Merger Agreement by the stockholders of
Eyeshop and EAC, EAC will merge with and into Eyeshop and Eyeshop will become
a wholly-owned subsidiary of the Company (the "Merger"); and
NOW, THEREFORE, in consideration of the premises and the mutual covenants
contained in this Agreement, the parties 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):
"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.
"Business Day" means any day on which commercial banks are not authorized
or required by law to close in Boston, Massachusetts.
"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.
"Common Stock Purchase Agreement I" means the Common Stock Purchase
Agreement dated May 23, 2001 by and among the Company and certain purchasers
indicated on the signature pages thereto.
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"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 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.
"Eyeshop" means and shall include xxxxxxx.xxx, inc. a Delaware corporation,
and its successors and permitted assigns.
"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 (i) 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 or (ii) the transactions contemplated
by the Merger Agreement.
"Merger" has the meaning specified in the preambles to this Agreement.
"Merger Agreement" has the meaning specified in the preambles to this
Agreement.
"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 whose names and addresses appear on the
signature pages hereto, and each of its or their successors and permitted
assigns.
"Securities Act" means the Securities Act of 1933 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.
"Shares" has the meaning specified in Section 2.01(a).
"Transaction Documents" shall mean this Agreement 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 Common Stock ("Shares") as is set forth opposite of
his/her/its name on the signature pages hereto at a purchase price of $0.20
per share. Exhibit A attached hereto shall reflect the actual number of shares
so purchased opposite the names of each respective Purchaser.
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(b) Closings; Delivery of the Shares. The purchase and sale of the Shares
shall take place on the effective date of the Merger of Eyeshop and EAC at the
offices of Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C., Xxx Xxxxxxxxx
Xxxxxx, Xxxxxx, XX 00000, 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 the Purchasers that the Company has taken all steps necessary
to cause to be issued to the Purchasers 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 for the Shares to be issued
and sold at the Closing.
(c) At the time of the execution of this Agreement, the proceeds to be
delivered to the Company shall be deposited in escrow pursuant to an escrow
agreement in substantially the form of Exhibit B attached hereto.
ARTICLE III
MERGER
Section 3.01 Merger Agreement. The Company agrees to use its best efforts
to consummate the Merger of Eyeshop with EAC, a wholly-owned subsidiary of the
Company, in accordance with the terms of the Merger Agreement. As a result of
the Merger, Eyeshop will become a wholly owned subsidiary of the Company.
ARTICLE IV
CONDITIONS TO CLOSING
Section 4.01 Mutual Conditions to Closing. The obligation of the Purchasers
to purchase and pay for, and the obligation of the Company to issue and sell
to the Purchasers, the Shares at the Closing is subject to the following
conditions:
(i) 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;
(ii) No Termination. This Agreement shall not have been terminated
pursuant to Section 8.03; and
(iii) Merger Agreement. The Merger Agreement shall have been duly
approved and authorized by all necessary action on the part of the Board of
Directors and stockholders of the Company, EAC and Eyeshop, and the Merger
shall have become effective.
Section 4.02 Conditions to Purchaser's Obligations. The obligation of each
Purchaser to purchase and pay for the Shares at the Closing is subject to the
following additional conditions:
(i) Compliance with Agreement. Each of the representations and
warranties of the Company set forth in Article V 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
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or fulfilled by the Company at or prior to such Closing shall have been
complied with, performed or fulfilled in all material respects;
(ii) 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, duly
executed by the Company;
(iii) Delivery of Stock Certificates. The Company shall have delivered
to the Purchasers at the Closing, evidence reasonably satisfactory to the
Purchasers that the Company has taken all steps necessary to cause to be
issued to the Purchasers stock certificates evidencing the Shares, as
specified in Section 2.01(b), registered in the names of the Purchasers;
(iv) 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;
(v) Board Composition. The following persons (among others) shall be
members of the Board of Directors of the Company: E. Xxxx Xxxxxx, Xxxxxx X.
Xxxxxxx, Xxxxxxx X. Xxxxxxx and Xxxx Xxxxxxxx (or, in the event any such
individual declines or is unable to serve, such other individual as may be
designated for election by the holders of at least a majority of the Shares
held by the Purchasers or their Affiliates);
(vi) Pending Actions. No suit, action or proceeding which seeks to
prohibit consummation of the transactions contemplated by this Agreement or
by the Merger Agreement shall be pending;
(vii) Third Modification Agreement. The Amended and Restated Third
Modification Agreement between the Company and Sovereign Bank, New England
shall be in full force and effect on the Closing Date, all conditions to
the effectiveness of such Agreement shall have been satisfied, and
Sovereign Bank shall have no right to terminate such Agreement or
accelerate the taking of any action intended to be deferred by the
Agreement;
(viii) Carlyle Letter Agreement. The Letter Agreement dated May 21, 2001
between the Company and Carlyle Venture Partners, L.P. and certain of its
affiliates ("Carlyle") shall be in full force and effect on the Closing
Date;
(ix) Shawnee Settlement. The Settlement Agreement and Mutual Release
dated March 20, 2001 between the Company and the former shareholders of
Shawnee Optical, Inc. shall be in full force and effect on the Closing
Date;
(x) Filing of Certificate of Amendment. The Company shall have filed
with the Delaware Secretary of State a Certificate of Amendment to the
Company's Restated Certificate of Incorporation in order to increase the
number of authorized shares of Common Stock, par value $.01 per share, of
the Company to 50,000,000 shares;
(xi) Documentation at Closing. The Purchasers shall have received, prior
to or at such Closing, (I) a certificate, executed by the 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; (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
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the effect that, to the best of the knowledge of such individual, the
conditions set forth in Section 4.02 (and, if applicable, Section 4.03)
have been satisfied;
(xii) 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 their counsel;
(xiii) Closing of Common Stock Purchase Agreement. The Second Closing,
as defined in Common Stock Purchase Agreement I, shall have been completed;
and
(ix) Waiver. Any condition specified in this Section 4.02 may be waived
by the Purchasers.
Section 4.03 Conditions to Company's Obligations. The obligation of the
Company to issue and sell the Shares at the Closing is subject to the
following additional conditions:
(i) Representations and Warranties. Each of the representations and
warranties of the Purchasers set forth in Article V hereof shall be true
and correct in all material respects on the date of such Closing;
(ii) Executed Counterparts. The Company shall have received prior to or
at the Closing counterparts of each of the Transaction Documents, in form
and substance reasonably satisfactory to the Company, duly executed by the
Purchasers;
(iii) Payment. The Company shall have received payment in full for the
Shares to be purchased at the Closing in accordance with Section 2.01;
(iv) Documentation at Closing. With respect to each of those Purchasers
that are United States corporate entities, 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 (A) 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 (B) the names of the
officers of such Purchaser authorized to sign the Transaction Documents
together with the true signatures of such officers;
(v) 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; and
(vi) Waiver. Any condition specified in this Section 4.04 may be waived
by the Company.
ARTICLE V
REPRESENTATIONS AND WARRANTIES
Section 5.01 Representations and Warranties of the Company. The Company
represents and warrants to each Purchaser as follows:
(a) Organization and Standing of the Company. Except as set forth in
Schedule 5.01(a), the Company is a duly organized and validly existing
corporation in good standing under the laws of the State of Delaware and has
all requisite corporate power and authority to own and operate its assets and
properties and to conduct its
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business as presently conducted, except where the failure to do so would not
have a material adverse effect on 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 of the Company, have been made
available to the Purchasers.
(b) Corporate Action. Except as set forth on Schedule 5.01(b), the Company
has all necessary corporate power and has taken all corporate action required
to authorize its execution and delivery of, and its performance under, the
Transaction Documents and the Company has all necessary corporate power and
has taken all corporate action required to authorize the issuance and sale of
the Shares and to consummate the other transactions contemplated by the
Transaction Documents.
(c) Governmental Approvals. 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
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, the Transaction
Documents.
(d) Capitalization. As of the date hereof, the authorized capital stock of
the Company consists of (i) 20,000,000 shares of Common Stock, par value $.01
per share, of which 10,718,952 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
aggregate 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 bylaws or by reason
of any other consensual action taken by the Company. As of the date hereof,
except as described or contemplated in the SEC Reports (as defined in Section
5.01(k)) filed with respect to periods ending on or after December 30, 2000
and as set forth on Schedule 5.01(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 to issue shares of its
capital stock or other securities, 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 filed with respect to periods ending on or after December 30,
2000, except as contemplated by the Transaction Documents. Except as described
in the SEC Reports, and except as otherwise contemplated by the Transaction
Documents, (i) 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, (ii) there are no restrictions on the transfer of shares of
capital stock of the Company other than those imposed by relevant federal and
state securities laws and (iii) there exists no agreement between the
Company's stockholders and to which the Company is party or of which the
Company has received written notice with respect to the voting or transfer of
the Company's capital stock or with respect to any other aspect of the
Company's affairs.
(e) Registration Rights. As of the date hereof, except as set forth on
Schedule 5.01(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.
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(f) Enforceability. The Company has duly authorized, executed and delivered
the Transaction Documents, 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. The Company's execution, delivery and performance
of its obligations under this Agreement and the other Transaction Documents do
not and will not (i) contravene its Certificate of Incorporation or By-laws,
(ii) to its knowledge, violate 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 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.
(h) Financial Statements. The Company has previously furnished to the
Purchaser a copy of its audited financial statements as of and for the year
ended December 30, 2000 (the "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) Absence of Material Adverse Change. Except as set forth on Schedule
5.01(i), since December 30, 2000, there has been no change in the assets,
liabilities, financial condition or operations of the Company which has had a
material adverse effect on the business, financial condition, operations,
property or affairs of the Company.
(j) Full Disclosure. The Company has furnished or made available to
Purchaser all documents filed by the Company with the Commission since January
1, 1999 pursuant to the reporting requirements of the Exchange Act.
(k) SEC Reports. The Company has filed with the Commission all reports (the
"SEC Reports") 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. 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.
(l) Securities Laws. Assuming the accuracy of the representations and
warranties of the Purchaser contained in Section 5.02 hereof, the issuance of
the Shares will be exempt from the registration requirements of the Securities
Act. All notices, filings, registrations, or qualifications under state
securities or "blue-sky" laws which are required in connection with the offer,
issue and delivery of the Shares pursuant to this Agreement, if any, have been
or will be completed by the Company.
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(m) Broker's Fee. 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 the Company.
(n) 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. Likewise,
consummation of the transactions contemplated by this Agreement will not
result in the application of any "moratorium," "control share acquisition,"
super-majority voting requirement, Company "poison pill" plan or other form of
anti-takeover statute, regulation or plan to the transactions contemplated by
the Merger Agreement if the transactions contemplated by this Agreement are
consummated in the manner contemplated by this Agreement.
(o) 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/or consummation of the transactions
contemplated hereby 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).
(p) Closing Date. Each of the representations and warranties of the Company
contained in this Section 5.01 and elsewhere in this Agreement that is not
qualified by materiality will be true and correct in all material respects on
the Closing Date as though then made, except as affected by the transactions
expressly contemplated by this Agreement. Each of the representations and
warranties of the Company contained in this Section 5.01 and elsewhere in this
Agreement that is qualified by materiality will be true and correct on the
first Closing Date as though then made, except as affected by the transactions
expressly contemplated by this Agreement.
Section 5.02 Representations and Warranties of the Purchasers. Each
Purchaser, severally but not jointly, represents and warrants to the Company
as follows:
(a) Investment Intent. The 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. The 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. The 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.
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(c) Accredited Investor. The Purchaser is an "accredited investor" as such
term is defined in Regulation D under the Securities Act.
(d) Enforceability. The Purchaser has duly authorized, executed and
delivered the Transaction Documents to which it is a party, and such
Transaction Documents constitute the legal, valid and binding obligations of
the 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 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 the
Purchasers 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 the Purchasers or any Purchaser.
(f) With respect to Purchasers that are corporations:
(i) Organization and Standing of the Purchaser. The 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. The Purchaser has all necessary corporate power
and has taken all corporate action required to authorize its execution and
delivery of, and its performance under, 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 the 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.
(h) Closing Date. Each of the representations and warranties of the
Purchaser contained in this Section 5.02 and elsewhere in this Agreement that
is not qualified by materiality, and all information contained in any writing
delivered by, or on behalf of, the Purchaser to the Company, will be true and
correct in all material respects on the Closing Date as though then made,
except as affected by the transactions expressly contemplated by this
Agreement. Each of the representations and warranties of the Purchasers
contained in this Section 5.02 and elsewhere in this Agreement that is
qualified by materiality will be true and correct on the Closing Date as
though then made, except as affected by the transactions expressly
contemplated by this Agreement.
ARTICLE VI
COVENANTS
Section 6.01 Performance. Each party shall perform all of its obligations
hereunder and shall, at or prior to the Closing Date, execute and deliver the
other Transaction Documents to which it is contemplated to be a signatory.
Section 6.02 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
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Documents, to the end that the transactions contemplated hereby and thereby
will be fully and timely consummated.
Section 6.03 Issuance of Additional Shares. Other than as provided in this
Agreement, Common Stock Purchase Agreement I, the Merger Agreement, or as
described or contemplated in Section 5.01(d), until after the Closing, the
Company shall not, except with the prior consent of the Purchasers, issue,
agree to issue, or grant any rights to acquire, any shares of capital stock of
the Company other than (i) options to purchase Common Stock of the Company
pursuant to the Company's 1992 Employee, Director and Consultant Stock Option
Plan, as amended, issued in the ordinary course of business and consistent
with past practice, (ii) warrants in connection with a bank financing and
(iii) dividends in the form of Common Stock to Carlyle.
ARTICLE VII
LIMITATIONS AND RESTRICTIONS
Section 7.01 Restrictions on Sales by Purchasers. Subject to the provisions
of Section 7.02 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 VII;
(b) each Purchaser may transfer Shares upon the occurrence of a
Liquidity Event; and
(c) each Purchaser may transfer Shares pursuant to Rule 144 promulgated
under the Securities Act of 1933, as amended, provided that during the
period of time between one year and two years after the Closing, no
Purchaser may transfer more than fifteen percent (15%) of the Shares
originally purchased by such Purchaser pursuant to this Agreement.
Section 7.02 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. The Registration
Rights Agreement shall provide that, commencing two years after the Closing,
the Purchasers shall have (collectively with those persons who purchased
Shares under Common Stock Purchase Agreement I, and the persons who receive
Shares as a result of the Merger) the following registration rights with
respect to the Shares:
(a) two demand rights, provided that at least twelve months shall have
elapsed between each demand and until such date that is three years after
the Closing;
(b) unlimited piggyback (incidental) rights subject to underwriter
cutbacks and provided that such restriction in this clause (b) shall not
apply upon the occurrence of a Liquidity Event; and
(c) an unlimited number of Registration Statements on Form S-3 (or
equivalent Form) provided that the reasonably anticipated price to the
public would be at least $1,000,000.
Such registration rights (i) shall be provided by the Company at its sole
expense (other than underwriting discounts and commissions), and (ii) shall be
subject to customary terms and conditions.
11
Section 7.03 Carlyle Registration. The Purchasers acknowledge that Carlyle
possesses the right to register shares of the Company's Common Stock. The
Purchasers agree that in the event the Purchasers exercise their registration
rights pursuant to the Registration Rights Agreement, the Purchasers shall
extend to Carlyle the opportunity to register a portion of the unregistered
shares of Common Stock held by it equivalent to one-third of the aggregate
shares of Common Stock proposed to be registered. This Section and Section
7.03 of Common Stock Purchase Agreement I are not intended to be cumulative.
Registration of shares held by Carlyle shall be limited to one-third (not two-
thirds) of the shares proposed to be registered.
ARTICLE VIII
MISCELLANEOUS
Section 8.01 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
000 Xxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attn: Chief Executive Officer
Fax: (000) 000-0000
with a copy to: Mintz, Levin, Cohn, Ferris,
Glovsky and Popeo, P.C.
Xxx Xxxxxxxxx Xxxxxx
Xxxxxx, XX 00000
Attn: Xxxxx Xxxxxx, Esq.
Fax: (000) 000-0000
If to the Purchasers: To the addresses set forth on Exhibit A
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 8.02 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
12
LAWS OF ANY APPLICABLE STATE OR OTHER JURISDICTION, HAVE BEEN ACQUIRED FOR
INVESTMENT AND NOT WITH A VIEW TO 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 8.03 Termination. If the Closing has not occurred on or prior to
September 30, 2001, 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 8.03 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 8.04 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 a
majority 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 8.05 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 8.06 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 and any non material terms and
provisions of this Agreement may be modified or amended only by written
agreement executed by the Company with the consent of the Purchasers as
provided in Section 8.04 herein.
Section 8.07 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 the
party entitled to the benefits of such terms or provisions. 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.
Section 8.08 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 the other (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
13
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, and except that the Company
without the consent of the Purchasers may assign this Agreement to an entity
with which the Company shall merge or consolidate or to which the Company
shall sell or assign all or substantially all of its assets.
Section 8.09 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 8.10 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 8.11 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 8.12 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.
Section 8.13 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 8.14 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 to
prevent breaches of this Agreement by the other party.
Section 8.15 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
14
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 8.16 Expenses. Each of the parties hereto shall pay its own fees
and expenses in connection with this Agreement and the transactions
contemplated hereby whether or not the transactions contemplated hereby are
consummated. The Company shall pay reasonable fees and expenses of Xxxxxxxx
Xxxx LLP up to an aggregate of $20,000.
Section 8.17 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 demonstrate (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 8.18 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 without the prior written consent of the
other, except as may be required by applicable law, rule or regulation;
provided that once such other party has consented to a party's issuance or
making of a press release or public statement, any subsequent issuance or
making of such press release or public statement by such party shall not
require the separate written consent of the other party. 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 8.19 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.
[THE NEXT PAGE IS THE SIGNATURE PAGE]
15
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
/s/ Xxxxxx X. Xxxxxxx
By:__________________________________
Xxxxxx X. Xxxxxxx
President, C.E.O.
PURCHASERS:
/s/ Xxxxxxx XxXxxxx
By:__________________________________
Xxxxxxx XxXxxxx
Number of Shares: 336,526
Aggregate Purchase Price $67,305.20
LA XXXXX X.X.
/s/ Xxxxx Xxxxxxx
By:__________________________________
Xxxxx Xxxxxxx
President
Number of Shares: *
Aggregate Purchase Price $
GLT CO LLC
/s/ Xxxx Xxxxxxx
By:__________________________________
Xxxx Xxxxxxx
Member
Number of Shares: *
Aggregate Purchase Price $
16
/s/ Xxxxxx Xxxxxx
By:__________________________________
Xxxxxx Xxxxxx
Number of Shares: *
Aggregate Purchase Price $
/s/ Xxxxxxx Xxxxxx
By:__________________________________
Xxxxxxx Xxxxxx
Number of Shares: *
Aggregate Purchase Price $
CELERITY VENTURES, LLC
/s/ Xxxxx Xxxxx
By:__________________________________
Xxxxx Xxxxx
Managing Director
Number of Shares: *
Aggregate Purchase Price $
THE XXXXX HOLDING COMPANY
/s/ Xxxxxx X. Xxxxx
By:__________________________________
Xxxxxx X. Xxxxx
President
Number of Shares: *
Aggregate Purchase Price $
EXCALIBUR INVESTMENTS B.V.
/s/ X. Xxxxxxx & D.R.J. Looij
By:__________________________________
Intra Beheer B.V.
Managing Director
Number of Shares: 3,794,807
Aggregate Purchase Price $758,961.40
17
EURO VENTURES EQUITY HOLDINGS B.V.
/s/ X. Xxxxxxx & D.R.J. Looij
By:__________________________________
Intra Beheer B.V.
Managing Director
Number of Shares: 948,701
Aggregate Purchase Price $189,740.20
*As many Shares as may be purchased with funds remaining in escrow after the
cutbacks under Common Stock Purchase Agreement I.
18
EXHIBIT A TO COMMON STOCK PURCHASE AGREEMENT
Name and Address Aggregate Number of Aggregate
Of Purchaser Shares Purchased Purchase Price
---------------- ------------------- --------------
Excalibur Investments B.V. 3,794,807 $758,961.40
Xxxxxxxxxxx 00,
0000 XX Xxxxxxxxx
Xxxxxxx 000
0000 XX
Xxxxxxxxx
With a copy to:
Xxxx Xxxxxxxx
Xxx Xxxxxxxxxxx 00
00000 Xxxxxx
XXXXX
Euro Ventures Equity Holdings
B.V. 948,701 $189,740.20
Xxxxxxxxxxx 00,
0000 XX Xxxxxxxxx
Postbus 782
1000 AT
Amsterdam
La Xxxxx X.X. 1,009,579 $201,915.80
Postale: X.X. 000, X-0000
XXXXXXXXXX
With a copy to:
Xxxxx Xxxxxxx
c/o Mazzucchelli 1849 spa
Via S. e.P. Xxxxxxxxxxxx 0
00000 Xxxxxxxxxxx Xxxxx
XXXXX
Celerity Ventures, LLC 112,176 $22,435.20
00 Xxxxxxxxx Xxxxxxx
Xxxxxxxxxx, XX 00000
The Xxxxx Holding Company 224,351 $44,870.20
000 X. Xxxxxx Xxxxxx
Xxxxxx Xxxxx, XX 00000
1
Name and Address Aggregate Number of Aggregate
Of Purchaser Shares Purchased Purchase Price
---------------- ------------------------------- -------------------------------
Xxxxxxx Xxxxxxx 336,526 $67,305.20
00 Xxxxxx Xxxxx
Xxxxxxxxxx, Xxxx 00000
XXX XX LLC 112,176 $22,435.20
X/x Xxx Xxxxx
X.X. Xxx 00
0000 Xxxxxxxxx Xx.
Xxxxxxxx, XX 00000
Xxxxxx X. Xxxxxx 15,480 $3,096.00
0 Xxxxxx Xxxxx Xxxxx
Xxxxxxxxxx, Xxxx 00000
Xxxxxxx X. Xxxxxx 15,704 $3,140.80
0 Xxxxxx Xxxxx Xxxxx
Xxxxxxxxxx, Xxxx 00000
2
EXHIBIT B TO COMMON STOCK PURCHASE AGREEMENT
ESCROW AGREEMENT
This Escrow Agreement (the "Agreement") is made as of May 31, 2001 by the
undersigned purchasers (each a "Purchaser" and collectively the "Purchasers"),
Sight Resource Corporation, a Delaware Corporation ("SRC") and Mintz, Levin,
Cohn, Ferris, Glovsky and Popeo, P.C. (the "Escrow Agent").
RECITALS:
WHEREAS, simultaneously herewith SRC and the Purchasers are entering into a
Common Stock Purchase Agreement (the "Purchase Agreement") pursuant to which
the Purchasers are purchasing shares of SRC's common stock, par value $.01 per
share.
WHEREAS, capitalized terms not defined herein shall have the meanings
ascribed to such terms in the Purchase Agreement.
WHEREAS, pursuant to the Purchase Agreement, the Purchasers will deposit
funds into escrow on or prior to the execution of the Purchase Agreement but
the purchase of the Shares will not occur until the effective date of a merger
between SRC and xxxxxxx.xxx, inc., a Delaware corporation ("Eyeshop"), whereby
Eyeshop will merge with a wholly owned subsidiary of SRC.
WHEREAS, the Purchasers and SRC wish to establish an escrow account to hold
the Escrow Funds until the Closing.
NOW, THEREFORE, the parties hereto agree as follows:
1. Escrow Agent. The Purchasers and SRC do hereby appoint the Escrow Agent
as the escrow agent for the purposes set forth herein, and Escrow Agent hereby
accepts such appointment, subject to the terms and conditions contained in
this Agreement.
2. Payment Into Escrow. Each Purchaser will deposit with the Escrow Agent
the amount set forth opposite his/her/its names on Exhibit A as the "Amount of
Deposit" on or prior to the execution of the Purchase Agreement, in the
aggregate amount of the Escrowed Funds. The Amount of Deposit shall be
hereinafter referred to as the "Escrowed Funds." The Escrow Agent will hold
the Escrowed Funds and the earnings on the Escrowed Funds in escrow pursuant
to the terms of this Agreement.
3. Earnings on the Deposit. The Escrow Agent shall invest the Escrowed
Funds in bank certificates of deposit and/or U.S. Treasury bills as determined
by the Escrow Agent following the receipt of an originally executed Form W-8
or Form W-9, as applicable, from a Purchaser and the establishment of a
separate sub-account for such Purchaser. The amount of earnings from the
Escrowed Funds shall be maintained for the benefit of the Purchasers. Such
earnings (and the expenses paid therefrom as provided in Section 6) will be
allocated among the Purchasers pro rata with the amount of each Purchaser's
contribution to the Escrowed Funds, regardless of the date of receipt thereof.
4. Distribution of the Escrowed Funds. The Escrow Agent shall hold and
continue to hold the Escrowed Funds and the earnings on the Escrowed Funds
until the same are disbursed as provided in this Section 4 and in Section 6.
1
4.1 At the Closing of the Purchase Agreement, and subject to
satisfaction or waiver of applicable conditions as set forth in the
Purchase Agreement, the Escrow Agent shall pay the entire amount of the
Escrowed Funds to SRC as payment for the Shares under the Purchase
Agreement. Promptly after the Closing Date, the Escrow Agent shall pay to
each Purchaser such Purchaser's share of the earnings (after reimbursement
of expenses as provided in Section 6) on the Escrowed Funds in accordance
with the written instructions of such Purchaser.
4.2 If the Closing Date does not occur prior to September 30, 2001, then
on or promptly after such date, the Escrow Agent shall return to each
Purchaser the amount such Purchaser contributed to the Escrowed Funds plus
such Purchaser's share of the earnings (after reimbursement of expenses as
provided in Section 6) on the Escrowed Funds in accordance with the written
instructions of such Purchaser.
5. Termination. The escrow provided hereunder shall expire completely upon
the release of all Escrowed Funds, and this Agreement, except for the
provisions of Sections 6.3 and 6.7 hereof, shall terminate.
6. Escrow Agent.
6.1 Escrow Agent's Fees. Escrow Agent shall not charge for its services
under this Agreement. To the extent that Escrow Agent properly incurs fees
and expenses in carrying out its duties under this Agreement, it may
reimburse itself therefor from earnings on the Escrowed Funds, but the
Purchasers shall not be responsible for any further expenses of Escrow
Agent.
6.2 Duties and Responsibilities. The duties and responsibilities of the
Escrow Agent hereunder shall be limited to those expressly set forth in
this Agreement, and the Escrow Agent shall not be bound in any way by any
other contract or agreement between the parties hereto, whether or not the
Escrow Agent has knowledge of any such contract or agreement or of the
terms or conditions thereof. In the event the Escrow Agent shall be
uncertain as to any duties or responsibilities hereunder or shall receive
instructions from any of the parties hereto with respect to the Escrowed
Funds which in its belief are in conflict with any of the provisions of
this Agreement, it shall be entitled to refrain from taking any action
until it shall be directed to do so in writing by order of a court of
competent jurisdiction (the time for all appeals therefrom having expired)
in proceedings which the Escrow Agent or any other party hereto shall be
entitled to commence. The Escrow Agent may act upon any instrument or other
writing (including wire transfer instructions) believed in good faith to be
genuine and to be signed and presented by the proper person or persons and
may assume that any person purporting to give notice, instruction, consent
or request or acknowledge receipt in connection with the provisions hereof
has been duly authorized to do so and that the same is properly made or
given. The Escrow Agent may rely upon any order, judgment, certification,
demand or other writing delivered to it without being required to determine
the propriety or validity of the service thereof or the jurisdiction of any
court.
6.3 Liability. The Escrow Agent undertakes to perform such duties as are
expressly set forth herein and no additional duties or obligations shall be
implied hereunder. The duties of the Escrow Agent are purely ministerial in
nature and shall not be construed as fiduciary and the Escrow Agent will
not be liable for any error in judgment, or for any mistake of fact or law,
or for any act done or step taken or omitted by it in good faith, or for
anything which it may do or refrain from doing in connection herewith,
except for willful misconduct or gross negligence. Accordingly, and without
limiting the foregoing, the Escrow Agent shall not incur any such liability
with respect to (a) any action taken or omitted under this Agreement,
except for willful misconduct or gross negligence, or (b) any action taken
or omitted in reliance upon any
2
instrument, including any written notice or instruction provided for
herein, not only as to its due execution by an authorized person and as to
the validity and effectiveness of such instrument, and also as to the truth
and accuracy of any information contained therein. In no event will the
Escrow Agent be liable for indirect, punitive, special or consequential
damages.
6.4 Disputes. In the event of a dispute between any of the parties
hereto sufficient in the discretion of the Escrow Agent to justify its
doing so, the Escrow Agent shall be entitled to tender the Escrowed Funds
into the registry or custody of any court of competent jurisdiction, to
initiate such legal proceedings as it deems appropriate, and pursuant
thereto, to be discharged from all further duties and liabilities under
this Agreement with respect to the Escrowed Funds so tendered. Any such
legal action may be brought in any such court as the Escrow Agent shall
determine to have jurisdiction with respect to such matter. The filing of
any such legal proceedings shall not deprive the Escrow Agent of its rights
to indemnification hereunder.
6.5 Attachment. In the event all or any part of the Escrowed Funds shall
be attached, garnished or levied upon pursuant to any court order, or the
delivery thereof shall be stayed or enjoined by a court order, or any other
order, judgment or decree shall be made or entered by any court affecting
the Escrowed Funds or any part hereof or any act of the Escrow Agent, the
Escrow Agent is authorized to obey and comply with all writs, orders,
judgments or decrees so entered or issued by any such court, without the
necessity of inquiring whether such court has jurisdiction; and if the
Escrow Agent obeys or complies with any such writ, order, or decree, it
shall not be liable to the parties hereto or any other person by reason of
such compliance.
6.6 Legal Action. The Escrow Agent shall have no duty to incur any out-
of-pocket expenses or to take any legal or other action in connection with
this Agreement or towards its enforcement, or to appear in, prosecute or
defend any action or legal proceeding that would result in or might require
it to incur any cost, expense, loss, or liability, unless and until it
shall be indemnified with respect thereto in accordance with Section 6.7 of
this Agreement.
6.7 Indemnification. The Purchasers and SRC jointly and severally
hereby agree to indemnify and hold harmless the Escrow Agent (and its
officers, directors, employees and agents) against any and all cost, loss,
damage, disbursement, liability, and expense, including reasonable
attorneys' fees, which may be imposed upon or incurred by the Escrow Agent
hereunder, or in connection with the performance of its duties hereunder,
including any litigation arising out of this Agreement, or involving the
subject matter hereof.
6.8 Resignation. The Escrow Agent, and the Escrow Agent's successors
hereinafter appointed, may at any time resign by giving notice in writing
to the Purchasers and SRC and shall be discharged of all duties hereunder
upon the appointment of a successor escrow agent which shall be appointed
by mutual agreement of the SRC and the unanimous consent of the Purchasers.
If the parties are unable to agree on a successor escrow agent within 10
days after such notice, any of such parties may petition a court of
competent jurisdiction to appoint one. From the date upon which the Escrow
Agent sends notice of any resignation until the acceptance by a successor
escrow agent appointed as provided herein, the Escrow Agent's sole
obligation hereunder shall be to hold the Escrowed Funds delivered to it in
accordance with this Agreement.
7. Modification or Amendment. No modification or amendment of any provision
of this Agreement shall be effective unless made in a written instrument, duly
executed by the party to be bound thereby, which refers
3
specifically to this Agreement and states that an amendment or modification is
being made in the respects set forth in such instrument.
8. Notices. Any and all notices or other communications or deliveries
required or permitted to be given or made pursuant to any provisions of this
Agreement shall be deemed to have been duly given or made for all purposes if
(i) hand delivered, (ii) sent by a nationally recognized overnight courier or
(iii) sent by telephone facsimile transmission (with prompt oral confirmation
of receipt) as follows:
If the Escrow Agent: Xxxxx X. Xxxxxx, Esquire
Mintz, Levin, Cohn, Ferris, Glovsky and Popeo,
P.C.
Xxx Xxxxxxxxx Xxxxxx
Xxxxxx, XX 00000
Phone: (000) 000-0000
Fax: (000) 000-0000
If to the Purchasers: To the addresses set forth opposite each
Purchaser's name on Exhibit A
If to SRC: Sight Resource Corporation
000 Xxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attn: President
Phone: (000) 000-0000
Fax: (000) 000-0000
With a copy to: Xxxxx X. Xxxxxx, Esquire
Mintz, Levin, Cohn, Ferris, Glovsky and Popeo,
P.C.
Xxx Xxxxxxxxx Xxxxxx
Xxxxxx, XX 00000
Phone: (000) 000-0000
Fax: (000) 000-0000
or at such other address as any party may specify by notice given to the other
party in accordance with this Section 8. The date of giving of any such notice
shall be the date of hand delivery, the date sent by telephone facsimile, and
the day after delivery to an overnight courier service.
9. Counterparts. This Agreement may be executed by one or more
counterparts, each of which independently shall be deemed to be an original
and all taken together shall constitute one instrument.
10. Waivers and Consents. The terms and provisions of this Agreement may be
waived, or consent for the departure therefrom granted, only by written
document executed by the party or parties entitled to the benefits of such
terms or provisions. 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.
11. Assignment. The rights and obligations under this Agreement may not be
assigned by the parties hereto without the prior written consent of the other
parties.
4
12. Governing Law. This Agreement shall be exclusively governed by and
construed in accordance with the domestic laws of the Commonwealth of
Massachusetts without giving effect to any choice of law or conflict of law
provision or rule (whether of the Commonwealth of Massachusetts or any other
jurisdiction) that would cause the application of the laws of any jurisdiction
other than the Commonwealth of Massachusetts.
13. Severability. In the event that any word, phrase, clause, sentence, or
other provision of this Agreement shall violate or be deemed unenforceable
under any applicable statute, ordinance, or rule of law in the jurisdiction
which governs this Agreement, such provisions shall be ineffective to the
extent of such violation without invalidating any other provision hereof.
14. Entire Agreement. This Agreement and the documents referred to herein
shall constitute the complete and entire agreement between the parties hereto
with respect to the subject matter hereof and shall supersede all previous
oral, written or implied negotiations and commitments and any other writing
with respect to such subject matter.
15. Force Majeure. The Escrow Agent shall not be responsible for delays or
failures in performance resulting from acts beyond its control. Such acts
shall include but not be limited to acts of God, strikes, lockouts, riots,
acts of war, epidemics, governmental regulations imposed after the fact, fire,
earthquakes or other disasters.
5
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day first written above.
SIGHT RESOURCE CORPORATION
/s/ Xxxxxx Xxxxxxx
By:
---------------------------------
Xxxxxx Xxxxxxx
President and CEO
MINTZ, LEVIN, COHN, FERRIS, GLOVSKY
AND POPEO, P.C.
/s/ Xxxxx Xxxxxx
By:
---------------------------------
Xxxxx Xxxxxx
Member
PURCHASERS
/s/ Xxxxxxx XxXxxxx
------------------------------------
Xxxxxxx XxXxxxx
/s/ Xxxxxx X. Xxxxxx
------------------------------------
Xxxxxx X. Xxxxxx
/s/ Xxxxxxx X. Xxxxxx
------------------------------------
Xxxxxxx X. Xxxxxx
CELERITY VENTURES LLC
/s/ Xxxxx Xxxxx
By:
---------------------------------
Xxxxx Xxxxx
Managing Director
GLT CO LLC
/s/ Xxxx Xxxxxxx
By:
---------------------------------
Xxxx Xxxxxxx
Member
6
EXCALIBUR INVESTMENTS B.V.
/s/ X. Xxxxxxx & D.R.J. Looij
By:
-------------------------------
Intra Beheer B.V.
Managing Director
EURO VENTURES EQUITY HOLDINGS
B.V.
/s/ X. Xxxxxxx & D.R.J. Looij
By:
-------------------------------
Intra Beheer B.V.
Managing Director
XX XXXXX
/s/ Xxxxx Xxxxxxx
By:
-------------------------------
Xxxxx Xxxxxxx
President
THE XXXXX HOLDING COMPANY
/s/ Xxxxxx X. Xxxxx
By:
-------------------------------
Xxxxxx X. Xxxxx
President
7
EXHIBIT A--PURCHASERS
Name Address Number of Shares Amount of Deposit
---- ------- ---------------- -----------------
La Xxxxx X.X. Siege Social 00 Xxxxxxxxx
Xxxxx X-0000
XXXXXXXXXX
GLT CO LLC x/x Xxx Xxxxx
X.X. Xxx 00
0000 Xxxxxxxxx Xx.
Xxxxxxxx, XX 00000
Celerity Ventures 00 Xxxxxxxxx Xxxxxxx
XXX Xxxxxxxxxx, XX 00000
Xxxxxxx XxXxxxx 00 Xxxxxx Xxxxx
Xxxxxxxxxx, Xxxx 00000
Xxxxxx X. Xxxxxx 0 Xxxxxx Xxxxx Xxxxx
Xxxxxxxxxx, Xxxx 00000
Xxxxxxx X. Xxxxxx 0 Xxxxxx Xxxxx Xxxxx
Xxxxxxxxxx, Xxxx 00000
The Xxxxx Holding 000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxx
Xxxxxx Xxxxx, XX 00000
Euro Ventures Eq- Xxxxxxxxxxx 00,
xxxx 0000 XX Xxxxxxxxx
Holdings B.V. Postbus 782
1000 AT
Amsterdam
Excalibur Invest- Xxxxxxxxxxx 00,
xxxxx X.X. 0000 XX Xxxxxxxxx
Postbus 782
1000 AT
Amsterdam
TOTAL:
1
