-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, G5LZBC6wmxOxmieQ3DqFhsS93QIjKa3+ASftIZ3EeePcd9uyT4lzzd22dxxDC4Yq t4ZiE1v8/znBLJcL50vBug== 0000950152-05-003144.txt : 20050414 0000950152-05-003144.hdr.sgml : 20050414 20050414160228 ACCESSION NUMBER: 0000950152-05-003144 CONFORMED SUBMISSION TYPE: 8-K PUBLIC DOCUMENT COUNT: 2 CONFORMED PERIOD OF REPORT: 20050408 ITEM INFORMATION: Entry into a Material Definitive Agreement ITEM INFORMATION: Financial Statements and Exhibits FILED AS OF DATE: 20050414 DATE AS OF CHANGE: 20050414 FILER: COMPANY DATA: COMPANY CONFORMED NAME: SIGHT RESOURCE CORP CENTRAL INDEX KEY: 0000895651 STANDARD INDUSTRIAL CLASSIFICATION: SERVICES-HEALTH SERVICES [8000] IRS NUMBER: 043181524 STATE OF INCORPORATION: DE FISCAL YEAR END: 1225 FILING VALUES: FORM TYPE: 8-K SEC ACT: 1934 Act SEC FILE NUMBER: 000-21068 FILM NUMBER: 05750955 BUSINESS ADDRESS: STREET 1: 100 JEFFREY AVENUE CITY: HOLLISTON STATE: MA ZIP: 01746 BUSINESS PHONE: 5084296916 MAIL ADDRESS: STREET 1: 100 JEFFREY AVENUE CITY: HOLLISTON STATE: MA ZIP: 01746 FORMER COMPANY: FORMER CONFORMED NAME: NEWVISION TECHNOLOGY INC DATE OF NAME CHANGE: 19940224 8-K 1 l13388ae8vk.txt SIGHT RESOURCE CORPORATION 8-K 4-14-05 UNITED STATES SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 FORM 8-K CURRENT REPORT Pursuant to Section 13 or 15 (d) of the Securities Exchange Act of 1934 Date of Report (Date of earliest event reported) April 8, 2005 SIGHT RESOURCE CORPORATION ------------------------------------------------------ (Exact name of registrant as specified in its charter) Delaware 0-21068 04-3181524 - -------------------------------------------------------------------------------- (State or other jurisdiction (Commission File Number) (I.R.S. Employer of Incorporation) Identification No.) 6725 Miami Avenue, Cincinnati, Ohio 45243 - -------------------------------------------------------------------------------- (Address of principal executive offices) (Zip Code) Registrant's telephone number, including area code (513) 527-9770 -------------- - -------------------------------------------------------------------------------- (Former name or former address, if changed since last report) Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instruction A.2. below): / / Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) / / Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) / / Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) / / Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) Item 1.01. Entry into a Material Agreement On April 8, 2005, Sight Resource Corporation ("SRC") and two of its subsidiaries, Cambridge Eye Associates, Inc. ("CEA") and Douglas Vision World ("DVW"), entered into an asset purchase agreement (the "Agreement") with Davis Vision, Inc. ("Davis"). Pursuant to the Agreement, CEA and DVW will sell substantially all of their assets (the "Assets") to Davis and will assign, in addition to other certain contracts, 25 unexpired non-residential real property leases under which SRC is the lessee (the "Leases") and three unexpired non-residential subleases under which SRC is the sublessor (the "Subleases") to Davis substantially on the terms set forth in the Agreement as attached hereto as Exhibit 10.57. As previously reported, SRC engaged the services of SSG Capital Advisors, LP ("SSG") to, among other things, assist SRC with the sale of all or a part of SRC's assets or operations. SRC received an offer from Cambridge Eye/Vision World, Inc. ("CEVW") for the Assets, and SSG concluded at that time that CEVW's offer was the highest and best offer of any received. On March 9, 2005, SRC filed a motion with the United States Bankruptcy Court for the Southern District of Ohio, Western Division (the "Bankruptcy Court"), requesting, among other things, the authorization to sell the Assets and to assign the Leases pursuant to an asset purchase agreement, contingent upon the approval of the Bankruptcy Court and the receipt of no higher or better offer for the Assets by another potential buyer. At the hearing on the request described above, held on April 7, 2005, an auction was conducted by SRC for the sale of the Assets. During the auction, an offer was received from Davis that the Bankruptcy Court determined was higher and better than the offer proposed by CEVW. As such, the Bankruptcy Court authorized the sale of the Assets to Davis subject to the conditions in the Agreement. Under the terms of the Agreement, CEA and DVW will sell the Assets and will assign the Leases and Subleases to Davis for $6,500,000 plus the assumption by Davis of certain liabilities. The closing of the transaction is expected to be held on April 22, 2005. The sale of the Assets involves six DVW retail stores in Rhode Island and 19 CEA stores in Massachusetts and New Hampshire, which comprise all of the remaining operations of SRC. Item 9.01. Financial Statements and Exhibits. (a) Financial Statements of Business Acquired. Not applicable. (b) Pro Forma Financial Information. Not available. (c) Exhibits. See Exhibit Index. FORWARD-LOOKING STATEMENTS. This Report contains certain forward-looking statements within the meaning of Section 21E of the Securities Act of 1934, as amended, including, without limitation, statements containing the words "expected" and words of similar import. Because forward-looking statements are based on a number of beliefs, estimates and assumptions that could ultimately prove inaccurate, there is no assurance that forward-looking statements will prove to be accurate. SIGNATURES Pursuant to the requirements of the Securities and Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned thereunto duly authorized. SIGHT RESOURCE CORPORATION Date: April 14, 2005 By: /s/ Donald L. Radcliff -------------------------------- Donald L. Radcliff Chief Financial Officer EXHIBIT INDEX Exhibit Number Description of Exhibit 10.57 Asset Purchase Agreement among Cambridge Eye Associates, Inc., Douglas Vision World, Sight Resource Corporation, and Davis Vision, Inc., dated April 8, 2005. EX-10.57 2 l13388aexv10w57.txt EXHIBIT 10.57 EXHIBIT 10.57 ASSET PURCHASE AGREEMENT ASSET PURCHASE AGREEMENT THIS ASSET PURCHASE AGREEMENT (this "Agreement") is entered into on April , 2005 by and between CAMBRIDGE EYE ASSOCIATES, INC., a Delaware corporation, and DOUGLAS VISION WORLD, a Delaware corporation (each a "Seller" and together the "Sellers"), SIGHT RESOURCE CORPORATION, a Delaware corporation ("SRC"), and DAVIS VISION, INC. ("Buyer") as follows: RECITALS: A. WHEREAS, Sellers are in the business of marketing and selling to the general public at 25 retail eye care centers in the Commonwealth of Massachusetts, the State of New Hampshire and the State of Rhode Island (the "Centers") eyeglass frames and lenses, contact lenses and related eyewear accessories (the "Business"); and B. WHEREAS, Sellers and Buyer have agreed, on the terms and subject to the conditions of this Agreement, that Sellers shall sell to Buyer, and Buyer shall purchase from Sellers, substantially all of the assets owned and used by Sellers in the conduct of the Business; and C. WHEREAS, on June 24, 2004 Sellers filed in the United States Bankruptcy Court for the Southern District of Ohio (the "Bankruptcy Court") voluntary petitions for relief under Title 11 of Chapter 11 of the United States Code (the "Bankruptcy Code") and Sellers and Buyer also have agreed that this Agreement shall be subject to the approval of the Bankruptcy Court pursuant to Section 363 of the Bankruptcy Code so that, inter alia, the Assets (as defined in Section 1 below) can be conveyed by Sellers to Buyer free and clear of any interests other than the Assumed Liabilities (as defined in Section 3.2 below). NOW, THEREFORE, in consideration of the mutual undertakings herein, and other good and valuable considerations, the receipt and sufficiency of all of which the parties hereby acknowledge, it is agreed that: 1. PURCHASE AND SALE OF ASSETS. 1.1 Subject Assets. Subject to approval of the Bankruptcy Court and the entry of the Sale Order (as defined in Section 8.1 below), on the terms and subject to the conditions of this Agreement, at the Closing (as defined in Section 5 below) Buyer shall purchase from Sellers and Sellers shall sell, transfer, convey and deliver to Buyer all of Sellers' direct and indirect rights, titles and interests in and to the following tangible and intangible property owned, leased or otherwise used by Sellers in connection with the operation of the Business (the "Assets"): (a) Inventory. All eyeglass frames and lenses, contact lenses, related eyewear accessories and other inventory owned by Sellers or SRC and located in or at the Centers together with all contact lens and other inventory located in Cincinnati or any other location or on order as of the Closing Date; (b) FFE. All office furniture and equipment, optical equipment, appliances, display cases, fixtures, supplies, accessories and other tangible personal property located in or at the Centers including, without limitation, the personal property described on the attached Exhibit A (the "FFE"); (c) Accounts Receivable. All of Sellers' accounts receivable (including, without limitation, receivables written off by Sellers) other than any inter-company accounts; (d) Leases. All real property leases and subleases for the Centers identified on the attached Exhibit B (the "Store Leases") together with all security deposits held by lessors or landlords or the Sellers or SRC as sublessors in accordance with the provisions of each Store Lease; (e) Contracts. All of Sellers' managed care contracts; written agreements with professional corporations employing doctors listed on the attached Exhibit C and stock restriction and pledge agreements relating to such professional corporations (collectively, the "PC Agreements"); and other written or oral customer contracts, agreements and commitments (including customer deposits) (all items in this paragraph (e) collectively, the "Assumed Contracts"); (f) Intellectual Property. The names "Cambridge Eye Associates" and "Douglas 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 Douglas 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 6725 Miami Avenue, Cincinnati, Ohio other than the main Delta Systems server and the following items to be -2- selected by Sellers: two desktop PCs; two Toshiba laptop PCs, two printers and one fax machine. 1.2 "As Is" Transaction. Buyer hereby acknowledges and agrees that, except as otherwise expressly provided in this Agreement, Sellers make no representations or warranties of any kind whatsoever, express or implied, with respect to any matter relating to the Assets or otherwise relating to any of the transactions contemplated hereby including, without limitation, any income to be derived or expenses to be incurred in connection with the Assets or the conduct of the Business, the physical condition of any tangible Assets or improvements which are the subject of any Store Leases to be assumed by Buyer at the Closing, the value of the Assets, the terms or amounts of any Assumed Liabilities, or the merchantability or fitness of the Assets for any particular purpose. Accordingly, subject to the representations, warranties and covenants expressly set forth in this Agreement Buyer shall accept the Assets at the Closing "AS IS," "WHERE IS" AND "WITH ALL FAULTS." 2. EXCLUDED ASSETS. Buyer shall not purchase or otherwise acquire from Sellers, and Sellers shall retain all of their respective rights, titles and interests in and to: (a) except for security deposits referred to in Section 1.1(d), all cash, cash equivalents, bank accounts as of the Closing Date and securities of Sellers; (b) all causes of action and claims which Sellers may have under Sections 506, 510, 542 through 551 inclusive and 553 of the Bankruptcy Code; and (c) all assets not specifically enumerated in Section 1 above. 3. RETENTION AND ASSUMPTION OF LIABILITIES. 3.1 Liabilities Retained by Sellers. Subject to Section 3.2 below, and except as otherwise expressly provided in this Agreement, Sellers shall remain solely and entirely responsible for their own liabilities and Buyer shall not assume or otherwise be liable for or acquire the Assets subject to, and Buyer's purchase of the Assets shall not constitute or be deemed to constitute the assumption of, any liabilities of Sellers whatsoever, whether direct or indirect, fixed or contingent, disputed or undisputed, liquidated or unliquidated, known or unknown, recorded or unrecorded. 3.2 Liabilities Assumed by Buyer. Buyer shall pay and otherwise perform when due the obligations of Sellers: (a) under the Store Leases and the Assumed Contracts relating to periods after the Closing Date (as defined in Section 5 below); and (b) to Sellers' current employees only for post-petition accrued but unused PTO (paid time-off) including, without limitation, accrued but unused sick leave, family leave and vacation time for those employees that Buyer, in the exercise of its sole judgment, elects to employ as provided in Section 3.3 below (collectively the "Assumed Liabilities"). 3.3 Sellers' Employees. Buyer shall have the right, but not the obligation, to employ any present employee of Sellers or SRC. Buyer shall have no responsibility or liability as a result of Buyer's acquisition of the Assets, or its employment of any such employees, with respect to contributions to or obligations for any of Sellers' or SRC's employee benefit plans, any multi-employer pension plan to which Sellers or SRC may contribute or, except as provided in Section 3.2 above, any -3- other liability or employee fringe benefit of Sellers or SRC which is due or unsatisfied as of the Closing. 4. PURCHASE PRICE. 4.1 Amount. The purchase price for the Assets shall be: (a) $1,850,000 (the "Purchase Price") [WHICH AMOUNT WAS INCREASED TO $6,500,000 DURING BANKRUPTCY COURT AUCTION PROCEEDINGS], plus (b) the Assumed Liabilities. 4.2 Reporting. The purchase price for the Assets shall be allocated for federal income tax purposes as shall be agreed between the Buyer and the Sellers, and IRS Form 8594 required to be filed under Section 1060 of the Internal Revenue Code of 1986, as amended (the "Code"), in connection with the purchase and sale of the Assets shall reflect such allocations. Sellers and Buyer shall file all tax and other returns in a manner consistent with such allocations and shall take no position contrary thereto. 4.3 Prorations. All payments from doctors in accordance with the PC Agreements, all lease and rental charges (including, without limitation, rent and other amounts payable by Sellers under the Store Leases), and all monthly utility charges shall be prorated between Sellers and Buyer as of the Closing Date, with Sellers being responsible for, and entitled to the benefit of, all such charges and payments relating to periods prior to the Closing Date and Buyer being responsible for, and entitled to the benefit of, all such charges and payments on and after the Closing Date. Should either Sellers or Buyer pay any such charges for which the other party is responsible, then the responsible party shall promptly reimburse the other party therefor. Should either Sellers or Buyer receive any revenues to which the other party is entitled, then such revenues shall promptly be paid over to the appropriate party. 4.4 Transfer Taxes. Buyer shall pay all federal, state and local sales, use, transfer, documentary stamp, conveyance, recording, conveyance and similar taxes arising out of, in connection with or related to the transactions contemplated by this Agreement. 5. CLOSING. The closing of the transactions contemplated by this Agreement (the "Closing") shall take place within fifteen business days of the date the Court enters the Sale Order or at such other date and time to which the parties may agree (the "Closing Date"). At the Closing: 5.1 Buyer's Payments and Deliveries. Buyer shall deliver to Sellers: (a) the Purchase Price, plus or minus any adjustments provided for in this Agreement, in immediately available funds by wire transfer to a bank account designated by Sellers; (b) [Reserved]; -4- (c) one or more agreements effecting the assumption by Buyer of the Assumed Liabilities; (d) a certified copy of the consent of the board of directors of Buyer authorizing Buyer to enter into and perform its obligations under this Agreement; and (e) such other documents, instruments and deliveries as Seller reasonably may request. 5.2 Sellers' Deliveries. Sellers shall deliver to Buyer: (a) a bill of sale conveying all of the Assets to Buyer; (b)extensions, for a period of not less than six (6) months, of the Management Agreements between Optometric Care, Inc. and Douglas Vision World, Inc. and between Optometric Providers, Inc. and CEA Acquisition Corp. on the same terms as currently in effect or as otherwise acceptable to Buyer; (c) stock certificates representing any shares of stock pledged to Sellers or SRC, together with duly executed stock powers; (d) one or more agreements effecting Sellers' assignment to Buyer of the Store Leases and Assumed Contracts; (e) a certified copy of the consent of the boards of directors of Sellers authorizing and directing Sellers to enter into and perform their obligations under this Agreement; (f) the Non Competition Agreement (as defined in Section 11 below) executed by Sellers and SRC; and (g) such other documents, instruments and deliveries as Buyer reasonably may request. The purchase and sale of the Assets shall be effective at the close of business for the Centers on the Closing Date (the "Effective Time"). Buyer shall be given possession of the Assets at the Effective Time. Until the Effective Time, all employees of Seller shall continue to be its employees, and all business operations of Sellers shall be for Sellers' account and risk and Sellers shall bear all risk of loss. 6. REPRESENTATIONS AND WARRANTIES OF SELLERS. If and only to the extent that under applicable federal, state or local law the breach of any of the following representations or warranties would result in, or fail to disclose, a lien upon or claim against the Assets, or result in a claim against Buyer for a liability of Sellers (other than the Assumed Liabilities), and subject to their obligations as debtors-in-possession under the Bankruptcy Code, Sellers hereby jointly and severally represent and warrant to and covenant with Buyer that: -5- 6.1 Organization. Each Seller is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware and is the sole owner of its Assets. Subject to its obligations as a debtor-in-possession under the Bankruptcy Code, each Seller has full authority and power to carry on the Business as it is now conducted. 6.2 Authority and Enforceability. (a) Each Seller has and at the Closing will have all requisite power, right and authority to enter into this Agreement and to consummate the transactions contemplated by this Agreement. All action required under applicable law has been or will be taken by the board of directors of each Seller to authorize each Seller's execution of, and the consummation of the transactions contemplated by, this Agreement. This Agreement and each other agreement and instrument to be executed by each Seller in connection herewith have been (or upon execution will have been) duly executed and delivered by each Seller and constitute (or upon execution will constitute) legal, valid and binding obligations of each Seller enforceable against each Seller in accordance with their respective terms. (b) All consents, approvals and authorizations and all other requirements prescribed by any law, rule or regulation which must be obtained or satisfied by each Seller and which are necessary for the execution and delivery by each Seller of this Agreement and the documents to be executed and delivered by each Seller in connection herewith and in order to permit the consummation of the transactions contemplated by this Agreement have been obtained and satisfied or will be obtained and satisfied by the Closing. 6.3 No Violation or Conflict. The execution and delivery of this Agreement, the consummation of the transactions contemplated hereby and the fulfillment of the terms hereof will not violate or result in a breach of any of the terms or provisions of, or constitute a default (or an event which, with notice or the passage of time, or both, would constitute a default) under, or conflict with or result in the termination of, or accelerate the performance required by any: (a) agreement, indenture, contract or other instrument to which either Seller is a party or by which either Seller or the Assets are bound except the loan agreements between Sellers and CadleRock Joint Venture, L.P. (and upon entry of the Sale Order (as defined in Section 9.1(a) below), any such breach, default or conflict under such loan agreements shall be cured or waived and the rights of CadleRock Joint Venture, L.P. shall be solely to receive proceeds of the sale of the Assets); (b) each Seller's Articles of Incorporation; (c) any judgment, decree, order or award of any court, governmental body or arbitrator by which either Seller or the Assets are bound; or (d) any law, rule or regulation applicable to Sellers or the Assets. 6.4 Title to Assets. Each Seller has good title to, is the sole lawful owner of, and has the right to use all of its Assets and at the Closing will transfer the Assets to Buyer free and clear of all liens, mortgages, leases, pledges, security interests, restrictions, prior assignments, encumbrances and claims of any kind or nature. 6.5 Store Leases and Assumed Contracts. Sellers have made all required post-petition payments under the Store Leases and the Assumed Contracts and -6- otherwise are in substantial compliance with their post-petition obligations thereunder. Upon the entry of the Sale Order, Sellers shall cure all defaults related to the Store Leases and Assumed Contracts pursuant to Section 365 of the Bankruptcy Code so as to enable Sellers to assume and to assign to Buyer at the Closing the Store Leases and Assumed Contracts. 6.6 Employment Matters. (a) There are: (i) no pending or, to the knowledge of Sellers, threatened claims by any employee of either Seller (each, an "Employee") or any person who in the past has worked for either Seller (each, a "Former Employee") against either Seller, other than for compensation and benefits due in the ordinary course of employment; and (ii) no pending or, to the knowledge of Sellers, threatened claims against either Seller arising out of any statute, ordinance or regulation relating to employment practices or occupational or safety and health standards. Subject to Section 3.2(b) above, Sellers are and after the Closing shall remain responsible for all Employee and Former Employee claims against Sellers arising out of events or transactions occurring prior to Closing. (b) Schedule 6.6 hereto identifies all Employees on leave of absence and all Employees and Former Employees and their dependents receiving health benefits, or eligible to receive health benefits, as required by the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended ("COBRA"). Notice of the availability of health care continuation coverage for Employees, Former Employees and their respective dependents and qualified beneficiaries, in accordance with the requirements of COBRA, has been provided to all persons entitled thereto, and all persons electing such coverage are being (or have been, if applicable) provided such coverage. Buyer shall have no liability with respect to the continuation of COBRA benefits to Sellers' Employees or Former Employees after Closing. 6.7 Employee Benefit Plans. Schedule 6.7 hereto lists all qualified and non-qualified plans, programs, agreements, commitments and arrangements maintained by or on behalf of Sellers that provide benefits or compensation to, or for the benefit of, any Employee or Former Employee (the "Plans"). To the knowledge of Sellers, all of the Plans are in substantial compliance with the Employee Retirement Income Security Act of 1974, as amended ("ERISA"), and the Internal Revenue Code. Nothing in this Section 6.7 shall be construed to create an obligation on the part of the Buyer to assume or succeed to any obligation of Sellers under Sellers' Plans or to continue such Plans for any of those employees of Sellers that Buyer elects to employ in accordance with Section 3.3 hereof, and Sellers are and after Closing shall remain responsible for continuation or termination of such Plans as they shall elect. 6.8 Taxes. Except as disclosed on Schedule 6.8 hereto, to the knowledge of Sellers they have collected or withheld, and have paid over to the proper governmental authorities, all federal, state and local sales taxes, local real estate taxes, local personal property taxes, employment taxes, and workers compensation premiums. Sellers are and after the Closing shall remain responsible for all federal, state and local taxes, employment taxes and workers compensation premiums attributable to Sellers' ownership of the Assets and operation of the Business prior to the Closing. -7- 6.9 Litigation. Except as disclosed on Schedule 6.9, to the knowledge of Sellers there is no action, suit, proceeding or investigation to which either Seller or any Center is a party (either as a plaintiff or defendant) presently pending, nor has any such action, suit, proceeding or investigation been pending at any time during the past two years, before any court or governmental agency, authority or body or arbitrator; to the knowledge of Sellers, there is no action, suit, proceeding or investigation threatened against either Seller and, to the knowledge of Sellers, there is no basis for any such action, suit, proceeding or investigation. 6.10 Compliance with Law. To the knowledge of Sellers, they are in substantial compliance with all laws, regulations, rules, permits, zoning requirements, authorizations, licenses and certificates required under applicable law for the conduct of the Business. To the knowledge of Sellers: (a) no default or violation, or event that with the lapse of time or the giving of notice, or both, would become a default or violation, has occurred in its compliance with each such law, regulation, rule, permit, authorization, license and certificate; and (b) no action has been taken or recommended by any governmental, regulatory or administrative official, agency or authority, to revoke, withdraw or suspend any authorization, license or certificate necessary for Sellers to own the Assets or to operate the Business. 7. REPRESENTATIONS AND WARRANTIES OF BUYER. Buyer represents and warrants to and covenants with Sellers that: 7.1 Organization. Buyer is a corporation duly organized, validly existing and in good standing under the laws of the State of New York and is or prior to the Closing will be qualified to do business in the Commonwealth of Massachusetts and the States of New Hampshire and Rhode Island. Buyer has full power and authority to carry on its business as it is now conducted. 7.2 Authority and Enforceability. (a) Buyer has and at the Closing will have all requisite power, right and authority to enter into, and to consummate the transactions contemplated by, this Agreement. All action required under applicable law has been taken by the board of directors of Buyer to authorize Buyer's execution of, and the consummation of the transaction contemplated by, this Agreement. This Agreement and each other agreement and instrument to be executed by Buyer in connection herewith has been (or upon execution will have been) duly executed and delivered by Buyer and constitute (or upon execution will constitute) legal, valid and binding obligations of Buyer enforceable against Buyer in accordance with their respective terms. (b) All consents, approvals and authorizations and all other requirements prescribed by any law, rule or regulation which must be obtained or satisfied by Buyer and which are necessary for the execution and delivery by Buyer of this Agreement and the documents to be executed and delivered by Buyer in connection herewith and in order to permit the consummation of the transactions contemplated by this Agreement have been obtained and satisfied or shall be obtained and satisfied by Closing. -8- 7.3 No Violation or Conflict. The execution and delivery of this Agreement, the consummation of the transactions contemplated hereby and the fulfillment of the terms hereof will not violate or result in a breach of any of the terms or provisions of, or constitute a default (or any event which, with notice or the passage of time, or both, would constitute a default) under, or conflict with or result in the termination of, or accelerate the performance required by: (a) any agreement, indenture or other instrument to which Buyer is a party or by which it is bound; (b) Buyer's articles of incorporation ; (c) any judgment, decree, order or award of any court, governmental body or arbitrator by which Buyer is bound; or (d) any law, rule or regulation applicable to Buyer. 8. COVENANTS. 8.1 Bankruptcy Court Approval. [Reserved] 8.2 Due Diligence. From the date of this Agreement through the Closing Date, Sellers and SRC shall provide Buyer and its representatives and agents full access at all reasonable times to the Assets and the operation of the Business, cause Sellers' and SRC's representatives to furnish Buyer with such financial and operating data and other information in Sellers' and SRC's possession or control with respect to the Assets and the Business as Buyer shall from time to time reasonably request so as to permit Buyer to conduct prior to the Closing a complete due diligence investigation of the Assets and the Business; provided that such investigation: (a) shall be conducted in such manner as not to interfere unreasonably with Sellers' operation of the Business; and (b) shall not affect any of the representations and warranties of Sellers hereunder. 8.3 Conduct of the Business. Subject to their obligations as debtors-in-possession under the Bankruptcy Code, from the date of this Agreement through the Closing Sellers and SRC shall not (except with the prior written consent of Buyer): (a) enter into any material transaction not in the ordinary course of the Business; (b) sell or transfer any of the Assets except for sales in the ordinary course of the Business of inventory or immaterial amounts of other tangible personal property not required in the Business; (c) mortgage, pledge or encumber any of the Assets, except liens for taxes not yet due and payable, and existing lender indebtedness; (d) amend, modify or terminate any Store Lease or Assumed Contract; or (e) make any increase in, or any commitment to increase, the benefits or compensation payable to any of its employees or agents. 8.4 Closing Conditions. Prior to the Closing, Sellers and SRC shall use their best efforts to obtain any necessary third party consents to the transfer of the Store Leases and Assumed Contracts and otherwise to assist Buyer in the satisfaction of all of Buyer's other conditions of Closing set forth in Section 9.2 below. -9- 9. CONDITIONS TO CLOSING. 9.1 Conditions to Obligations of Each Party. The obligations of Buyer and Sellers to consummate the transactions contemplated hereby shall be subject to the fulfillment, on or prior to the Closing Date, of the following conditions: (a) The Bankruptcy Court shall have entered an order (the "Sale Order") in form and substance to the reasonable satisfaction of Sellers and Buyer, which shall, among other things, (i) approve this Agreement as the highest and best offer for the Assets and the transactions contemplated hereby in accordance with Section 363 of the Bankruptcy Code and find, among other things, that Buyer is a good faith purchaser for value entitled to the protections of Section 363(m) of the Bankruptcy Code; (ii) approve the sale of, and authorize Sellers and SRC to transfer to Buyer the Assets free and clear of any and all liens (other than liens that Buyer has agreed to permit or assume hereunder or hereafter) pursuant to Section 363(f) of the Bankruptcy Code; and (iii) approve the assumption by Sellers and SRC and the assignment to Buyer of the Store Leases and Assumed Contracts and authorize the payment and performance by Sellers and SRC of all cures due the other parties to such Store Leases and Assumed Contracts. (b) No other claim, action, suit, investigation or other proceeding brought by any governmental agency or other party shall be pending or threatened before any court or governmental agency which seeks to enjoin, restrain, prohibit, restrict or limit the consummation of the transactions contemplated by this Agreement or Buyer's unrestricted right to own the Assets and to operate the Business after the Closing, or to recover damages from Buyer or Sellers, or other relief, in connection therewith. 9.2 Conditions to Obligations of Buyer. The obligations of Buyer to consummate the transactions contemplated hereby shall be subject to the fulfillment, at or prior to the Closing, of the following additional conditions: (a) The representations and warranties of Sellers contained in this Agreement or in any other document delivered by Sellers to Buyer pursuant hereto shall have been true and correct as of the date of this Agreement or when otherwise given and shall be true and correct on the Closing Date as if made on the Closing Date; (b) Each of the obligations of Sellers to be performed by them on or before the Closing Date pursuant to the terms of this Agreement shall have been duly performed by them on or before the Closing Date; (c) All actions required to be taken by, or on the part of, Sellers to authorize the execution, delivery and performance of this Agreement and the consummation of the transactions contemplated hereby shall have been duly and validly taken by Sellers; (d) Between the date of this Agreement and the Closing Date there shall not have occurred any damage or destruction of, or loss to, any of the Assets, whether or not covered by insurance, which has had or may reasonably be expected to have a material and adverse effect on the Business or any prospects of the Business; and -10- (e) All legal matters and the form and substance of all documents to be delivered to Buyer shall have been approved by Buyer's counsel. 9.3 Conditions to Obligations of Sellers. The obligations of Sellers to consummate the transactions contemplated hereby shall be subject to the fulfillment, at or prior to the Closing Date, of the following additional conditions: (a) The representations and warranties of Buyer contained in this Agreement or in any other document delivered by Buyer to Sellers pursuant hereto shall have been true and correct in all material respects as of the date of this Agreement or when otherwise given and shall be true and correct in all material respects on the Closing Date with the same effect as if made on the Closing Date; (b) Each of the obligations of Buyer to be performed by it on or before the Closing Date pursuant to the terms of this Agreement shall have been duly performed by it on or before the Closing Date; and (c) All legal matters and the form and substance of all documents to be delivered to Sellers shall have been approved by Sellers' counsel. 10. POST-CLOSING ACCESS. Sellers shall have the right for a period of three years following the Closing Date to reasonable access to the Books and Records transferred to Buyer pursuant to the terms of this Agreement (including, without limitation, remote access to the Microsoft Exchange Server and the Payroll Server) for the limited purposes of concluding its involvement in the Business after the Closing Date and obtaining information reasonably necessary in connection with any income or other tax issues. 11. NON-COMPETITION. Sellers and SRC shall enter into a non-competition agreement prohibiting the ownership, operation, or participation in any manner by Sellers, SRC and/or other subsidiaries or affiliates of SRC in any retail eye glass store in competition with Buyer in the Commonwealth of Massachusetts, the State of New Hampshire and the State of Rhode Island for a three (3) year period commencing on the Effective Time (the "Non-Competition Agreement'). "Affiliate" as used in this Section 11 means any entity who controls, is controlled by, or is under common control with Sellers or SRC. 12. TERMINATION; REMEDIES. 12.1 Termination Requiring Notice. This Agreement and the transactions contemplated hereby may be terminated at any time prior to Closing by written notice delivered by Sellers to Buyer or by Buyer to Sellers, as the case may be, in the following instances: (a) By Buyer if there has been a misrepresentation, a breach of warranty or a failure to comply on the part of Sellers with respect to any of the representations, warranties, covenants or provisions set forth herein (or delivered in any other document pursuant hereto). -11- (b) By Sellers if there has been a misrepresentation, a breach of warranty or a failure to comply with any covenant on the part of Buyer with respect to the representations, warranties or covenants set forth herein (or delivered in any other document pursuant hereto). (c) [Reserved] (d) At any time prior to Closing by the mutual consent in writing of Sellers and Buyer. 12.2 Termination Without Notice. This Agreement and the transactions contemplated hereby shall automatically terminate without notice if the Closing does not occur on or before April 22, 2005. 12.3 Liability in the Event of Termination; Remedies. (a) In the event of termination of this Agreement and the transactions contemplated hereby pursuant to Section 12.1(a) or (b) above, the non-breaching party may avail itself of all rights, powers and remedies now or hereafter existing at law or in equity or by statute or otherwise. (b) In the event of termination of this Agreement and the transactions contemplated hereby pursuant to Section 12.1(d) or 12.2 above, this Agreement shall become void and have no further effect, without any liability on the part of any party hereto except as otherwise provided in the Sale Order. 13. MISCELLANEOUS. 13.1 Entire Agreement. This Agreement (including all Exhibits and Schedules hereto) supersedes any and all other agreements, oral or written, between the parties hereto with respect to the subject matter hereof and contains the entire agreement between such parties with respect to the transactions contemplated hereby. 13.2 Amendments. This Agreement shall not be modified or amended except by an instrument in writing signed by or on behalf of all of the parties hereto. 13.3 Successors and Assigns. This Agreement and all of the provisions hereof shall be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted transferees and assignees. 13.4 Assignment. Neither this Agreement nor any interest herein may directly or indirectly be transferred or assigned by any party, in whole or in part, without the written consent of the other parties except that Buyer may assign its rights and obligations under this Agreement to an affiliated corporation or limited liability company. 13.5 Notices. All notices, requests, demands, and other communications which may or are required to be delivered hereunder shall be in writing and shall be delivered by hand delivery, by facsimile transmission (receipt confirmed), by -12- 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 Louis F. Solimine, Esq. Thompson Hine LLP Suite 1400 312 Walnut Street Cincinnati, Ohio 45202 Fax: (513) 241-4771 If to Buyer: Walter F. Froh 100 Senate Avenue 3C Camp Hill, Pennsylvania 17011 Fax: (717) 302-2392 with a copy to: Edward A. Bittner, Jr. Highmark Inc. Fifth Avenue Place 120 Fifth Avenue, Suite 2180 Pittsburgh, PA 15222-3099 Fax: (412) 544-4028 or to such other address or to such other person as any party shall have last designated by written notice to the other parties. Notices, requests, demands, and other communications so delivered shall be deemed given upon receipt. 13.6 Waiver. If any party expressly waives in writing an unsatisfied condition, representation, warranty, undertaking, covenant or agreement (or portion thereof) set forth herein, the waiving party shall thereafter be barred from recovering, and thereafter shall not seek to recover, any damages, claims, losses, liabilities or expenses, including, without limitation, legal and other expenses, from the other parties in respect of the matter or matters so waived. 13.7 Severability. If any term or provision of this Agreement or any application thereof shall be invalid or unenforceable, the remainder of this Agreement and any other application of such term or provision shall not be affected thereby. 13.8 No Third Party Beneficiary. This Agreement is for the benefit of, and may be enforced only by, Sellers and Buyer, and their respective successors and -13- 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. -14- 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. DAVIS VISION, INC. By: By: -------------------------------- ---------------------------------- Title: Title: ----------------------------- ------------------------------- DOUGLAS VISION WORLD, INC. SIGHT RESOURCE CORPORATION By: By: -------------------------------- ---------------------------------- Title: Title: ----------------------------- ------------------------------- CAMBRIDGE EYE ASSOCIATES, INC./DOUGLAS VISION WORLD, INC. ASSET PURCHASE AGREEMENT EXHIBIT A FIXED ASSET LISTS CAMBRIDGE EYE ASSOCIATES, INC./DOUGLAS VISION WORLD, INC. ASSET PURCHASE AGREEMENT EXHIBIT B STORE LEASES Store# 1 Vision World 1400 OAKLAWN AVE. CRANSTON RI 02920 2 Vision World 1925 PAWTUCKET AVE. E. PROVIDENCE RI 02914 4 Vision World 1663 MINERAL SPRING AVE. N. PROVIDENCE RI 02904 5 Vision World 401 WEST MAIN ROAD MIDDLETOWN RI 02842 6 Vision World 553 KINGSTOWN ROAD WAKEFIELD RI 02879 7 Vision World 228 ATWOOD AVE. CRANSTON RI 02920 101 Cambridge Eye 1168 MASSACHUSETTS AVE. CAMBRIDGE MA 02138 102 Cambridge Eye 726-1/2 BELOMONT STREET BROCKTON MA 02301 103 Cambridge Eye 150 Highland Seekonk MA 104 Cambridge Eye 303 WORCESTER RD.FRAMINGHAM MA 01701 105 Cambridge Eye 139 ENDICOTT RD. DANVERS MA 01923 106 Cambridge Eye 490 Lincoln Street Worcester MA 01605 107 Cambridge Eye 325 STATE ROAD N. DARTMOUTH MA 02747 109 Cambridge Eye 700 BOSTON ROAD BILLERICA MA 01821 110 Cambridge Eye 482 SOUTHERN ARTERY QUINCY MA 02169 111 Cambridge Eye 181 FALMOUTH ROAD HYANNIS MA 02601 112 Cambridge Eye 1623 Beacon Street BROOKLINE MA 02445 113 Cambridge Eye ONE HIGHLAND AVE. MALDEN MA 02148 STE 3B 114 Cambridge Eye RT. 139 PEMBROKE MA 02359 STE. 160 116 Cambridge Eye 751 Providence HGWY Dedham MA 02026 117 Cambridge Eye 3 Mt. Auburn St Watertown MA 02172 Suite 2 118 Cambridge Eye 346 South Broadway Salem NH 03079 121 Cambridge Eye 230 FRANKLIN VILLAGE DR. FRANKLIN MA 02038 122 Cambridge Eye 100 STATE STREET BOSTON MA 02109 123 Cambridge Eye 17 DAVIS STRAITS RD. FALMOUTH MA 02540
Subleases: Sublease dated March 1, 1998 between Cambridge Eye Doctors and Little Tibet for premises located at 1174 Massachusetts Ave., Cambridge, Ma. 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 325 State Road, North Dartmouth, Ma. Sublease dated March 19, 1999 between Sight Resource Corporation and New England Mobile Communications for premises located at 325 State Road, North Dartmouth, Ma. CAMBRIDGE EYE ASSOCIATES, INC./DOUGLAS VISION WORLD, INC. ASSET PURCHASE AGREEMENT EXHIBIT C ASSUMED CONTRACTS Eyeware Discount Program Agreement with Harvard Pilgrim Health Care, Inc. Vision Care Agreement with Commonwealth of Massachusetts NAGE Health and Welfare Trust Fund Management Agreement between Optometric Care, Inc. and Douglas Vision World, Inc. Management Agreement between Optometric Providers, Inc. and CEA Acquisition Corp. Stock Restrictions and Pledge Agreement by and among Optometric Care, Inc., Alerino M. Iacobbo, O.D. and Douglas Vision World, Inc. Agreement with Dr. Leonard Bertoli (OPI) Agreement with Dr. Linda Wise (OPI) Agreement with Dr. Timothy Sajban (OPI) Agreement with Dr. Steven Strojny (OPI) Agreement with Dr. David Tabai (OPI) Agreement with Dr. Bruce Rakusin (OPI) Agreement with Dr. Christopher Joseph (OPI) Agreement with Dr. M. Pamela Pearson (OPI) Agreement with Dr. James Casey (OPI) Agreement with Dr. Rosali Rezelbach (OPI) Agreement with Dr. Michael Iannuccilli (OPI) Agreement with Dr. Stephen Ide (OCI) CAMBRIDGE EYE ASSOCIATES, INC./DOUGLAS VISION WORLD, INC. ASSET PURCHASE AGREEMENT EXHIBIT D EXCLUDED PREPAID EXPENSES All trade vendor prepayments CAMBRIDGE EYE ASSOCIATES, INC./DOUGLAS 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: Debra Gomes-Platt - Vision World Workers Comp (Jan. 3rd slip and fall- still working) Elaine Kennedy- Cambridge Eye Has filed for Short Term disability to begin May 6, 2005 and return to work July 5, 2005 for maternity leave. Dr. Alerino Iacobbo- 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 346 Broadway, Salem, NH. was in violation of State pay requirements because pay checks were being issued bi-weekly without permission from the State. CAMBRIDGE EYE ASSOCIATES, INC./DOUGLAS VISION WORLD, INC. ASSET PURCHASE AGREEMENT SCHEDULE 6.7 Employee Benefit Plans 1) Sight Resource Corporation 401(k) Plan (unaudited) 2) Dental Insurance Plan (Met Life) 3) Health Insurance Plan (GISC- associates, UHC- ODs) 4) Basic term life insurance (Met Life) 5) Short Term Disability (Met Life) 6) Long Term Disability (Met Life) CAMBRIDGE EYE ASSOCIATES, INC./DOUGLAS 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./DOUGLAS VISION WORLD, INC. ASSET PURCHASE AREEMENT SCHEDULE 6.9 INTELLECTUAL PROPERTY LITIGATION Vision World LLC v. Sight Resource Corporation, Case No. 1:05CV106 (S.D. Ohio) -----END PRIVACY-ENHANCED MESSAGE-----