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EXHIBIT 10.55
ASSET PURCHASE AGREEMENT
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ASSET PURCHASE AGREEMENT
THIS ASSET PURCHASE AGREEMENT (this "Agreement") is entered into
on
January 27, 2005 by and between EYEGLASS
EMPORIUM, INC., a Delaware corporation
("Seller") (a wholly owned subsidiary of
Sight Resource Corporation, a Delaware
corporation ("SRC")), VISION POINT I AND
II, LLC's, Indiana limited liability
companies ("Buyer"), and SRC, which enters
into this Agreement for the sole
purpose of being bound by the provisions of
Section 5 below:
RECITALS:
A. WHEREAS, Seller is in the business of marketing and selling to
the
general public at six retail eye care
centers in the State of Indiana (the
"Centers") eyeglass frames and lenses,
contact lenses and related eyewear
accessories (the "Business"); and
B. WHEREAS, Seller and Buyer have agreed, on the terms and subject
to
the conditions of this Agreement, that
Seller shall sell to Buyer, and Buyer
shall purchase from Seller, substantially
all of the assets owned and used by
Seller in the conduct of the Business;
and
C. WHEREAS, on June 24, 2004 Seller filed in the United States
Bankruptcy Court for the Southern District
of Ohio (the "Bankruptcy Court") a
voluntary petition for relief under Title
11 of Chapter 11 of the United States
Code (the "Bankruptcy Code") and Seller and
Buyer also have agreed that this
Agreement shall be subject to the approval
of the Bankruptcy Court pursuant to
Section 363 of the Bankruptcy Code so that,
inter alia, the Assets (as defined
in Section 1 below) can be conveyed by
Seller to Buyer free and clear of any
interests other than the Assumed
Liabilities (as defined in Section 3.2 below).
NOW, THEREFORE, in consideration of the mutual undertakings herein,
and
other good and valuable considerations, the
receipt and sufficiency of all of
which the parties hereby acknowledge, it is
agreed that:
1.
PURCHASE AND SALE OF ASSETS.
1.1 Subject Assets. If Buyer is the successful bidder at
the Bankruptcy Court auction
sale of certain assets of Seller to be conducted
on or about January 27,
2005, then subject to approval of the Bankruptcy
Court, Buyer shall purchase
from Seller and Seller shall sell, transfer,
convey and deliver to Buyer,
on the terms and subject to the conditions of
this Agreement, as modified
by any increase in purchase price as a
consequence of the
successful highest bid, at the Closing (as defined in
Section 6 below) all of
Seller's direct and indirect rights, titles and
interests in and to the
following tangible and intangible property owned,
leased or otherwise used by
Seller in connection with the operation of the
Business (the "Assets"):
(a) Inventory. All eyeglass frames and lenses, contact
lenses, related eyewear accessories and
other inventory owned by Seller and
located in or at the Centers;
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(b) FFE. All office furniture and equipment, optical
equipment, appliances, display cases,
fixtures, supplies, accessories and other
tangible personal property located in or at
the Centers including, without
limitation, the personal property described
on the attached Exhibit A (the
"FFE");
(c) Leases. All real property leases for the Centers
identified on the attached Exhibit B (the
"Store Leases") together with all
security deposits held by lessors or
landlords in accordance with the provisions
of each Store Lease;
(d) Contracts. All managed care contracts, all written
agreements with doctors of optometry (the
"Doctor Agreements") listed on the
attached Exhibit C and other written or
oral customer contracts, agreements and
commitments (including customer deposits)
(together with the Doctor Agreements,
the "Assumed Contracts"); (e) Intellectual
Property. The name "Eyeglass
Emporium" and all related service marks,
logos and other proprietary rights and
intellectual property under, by and through
which Seller conducts the Business
including, without limitation: (i) the
United States registered service mark
"Eye Glass Emporium", serial number
73692008 filed October 26, 1987 in the
United States Patent Office; (ii) all
advertising devices displaying the
Eyeglass Emporium service mark including,
without limitation, all signs, kiosks
and other advertising media; (iii) all
stocks of business forms and promotional
pass out literature that contains or makes
reference to Eyeglass Emporium; and
(iv) all presently existing telephone
numbers for each of the Centers to the
extent such numbers are transferable (the
"Intellectual Property"); and
(f) Books and Records. All books and records including,
without limitation, Seller's hard copies
and electronic versions of the
accounting records, customer lists, patient
records, manuals, personnel,
employment and payroll files, promotional
materials, business forms, permits,
licenses, titles and other written, printed
or electronic information of any
kind used by Seller or its employees and
contractors/tenant doctors of optometry
to conduct the Business, including without
limitation all data and information
in the Seller's POS Delta System (access to
which shall be provided by Seller to
Buyer for electronic transfer at Buyer's
expense) and any and all other records
and information (the "Books and
Records").
1.2 "As Is" Transaction. Buyer hereby acknowledges and agrees
that, except as otherwise expressly
provided in this Agreement, Seller makes no
representations or warranties of any kind
whatsoever, express or implied, with
respect to any matter relating to the
Assets or otherwise relating to any of the
transactions contemplated hereby including,
without limitation, any income to be
derived or expenses to be incurred in
connection with the Assets or the conduct
of the Business, the physical condition of
any tangible Assets or improvements
which are the subject of any Store Leases
to be assumed by Buyer at the Closing,
the value of the Assets, the terms or
amounts of any Assumed Liabilities, or the
merchantability or fitness of the Assets
for any particular purpose.
Accordingly, subject to the
representations, warranties and covenants expressly
set forth in this Agreement Buyer shall
accept the Assets at the Closing "AS
IS," "WHERE IS" AND "WITH ALL FAULTS."
2. EXCLUDED ASSETS. Buyer shall not purchase or otherwise acquire
from
Seller, and Seller shall retain all of its
rights, titles and interests in and
to: (a) all cash, cash equivalents, bank
accounts and securities of Seller; (b)
all accounts receivable of Seller, except
that Buyer shall be entitled to
receive payment for all services rendered
by it after closing for completion of
work in process commenced by Seller and not
completed at the time of closing
provided Buyer's services are necessary to
complete performance of an oral or
written
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contract assumed by it in accordance with
Section 3 below;. (c) all causes of
action and claims which Seller may have
under Sections 506, 510, 542 through 551
inclusive and 553 of the Bankruptcy Code;
and (d) all assets not specifically
enumerated in Section 1 above.
3. RETENTION AND ASSUMPTION OF LIABILITIES.
3.1 Liabilities Retained by Seller. Subject to Section 3.2
below, and except as otherwise expressly
provided in this Agreement, Seller
shall remain solely and entirely
responsible for its own liabilities and Buyer
shall not assume or otherwise be liable for
or acquire the Assets subject to,
and Buyer's purchase of the Assets shall
not constitute or be deemed to
constitute the assumption of, any
liabilities of Seller whatsoever, whether
direct or indirect, fixed or contingent,
disputed or undisputed, liquidated or
unliquidated, known or unknown, recorded or
unrecorded.
3.2 Liabilities Assumed by Buyer. Buyer shall pay and
otherwise perform when due the obligations
of Seller: (a) under the Store Leases
and the Assumed Contracts relating to
periods after the Closing Date (as defined
in Section 6 below); and (b) to Seller's
current employees only for accrued but
unused PTO (paid time-off) including,
without limitation, accrued but unused
sick leave, family leave and vacation time
for those employees that Buyer, in
the exercise of its sole judgment, elects
to employ as provided in Section 3.3
below (collectively the "Assumed
Liabilities").
3.3 Seller's Employees. Buyer shall have the right, but not
the obligation, to employ any present
employee of Seller. Buyer shall have no
responsibility or liability as a result of
Buyer's acquisition of the Assets, or
its employment of any such employees, with
respect to contributions to or
obligations for any of Seller's employee
benefit plans, any multi-employer
pension plan to which Seller may contribute
or, except as provided in Section
3.2 above, any other liability or employee
fringe benefit of Seller which is due
or unsatisfied as of the Closing.
4. PURCHASE PRICE.
4.1 Amount. The purchase price for the Assets shall be: (a)
the successful bid amount reached pursuant
to the bid procedure and reflected in
the sale procedure order, which shall be
allocated as outlined below and
pro-rated to the final bid amount:
<TABLE>
<S>
<C>
Inventory
$269,000
FFE
$ 56,000
Store Leases and Assumed Contracts
$ 60,000
Intellectual Property and Books and Records
$122,811
Goodwill/Name
$ 29,189
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$537,000
</TABLE>
plus (b) the Assumed Liabilities.
4.2 Reporting. The purchase price for the Assets shall be
allocated for federal income tax purposes
in accordance with Section 4.1 above
and IRS Form 8594 required to be filed
under Section 1060 of the Internal
Revenue Code of 1986, as amended (the
"Code"), in connection with the purchase
and sale of the Assets shall reflect such
allocations. Seller and Buyer shall
file all tax and other returns in a manner
consistent with such allocations and
shall take no position contrary
thereto.
4.3 Prorations. All payments from doctors in accordance with
the Doctor Agreements, all lease and rental
charges (including, without
limitation, rent and other amounts payable
by Seller under the Store Leases),
and all monthly utility charges shall be
prorated
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between Seller and Buyer as of the Closing
Date, with Seller being responsible
for, and entitled to the benefit of, all
such charges and payments relating to
periods prior to the Closing Date and Buyer
being responsible for, and entitled
to the benefit of, all such charges and
payments, on and after the Closing Date.
Should either Seller or Buyer pay any such
charges for which the other party is
responsible, then the responsible party
shall promptly reimburse the other party
therefor. Should either Seller or Buyer
receive any revenues to which the other
party is entitled, then such revenues shall
promptly be paid over to the
appropriate party.
4.4 Transfer Taxes. Buyer shall pay all federal, state and
local sales, use, transfer, documentary
stamp, conveyance, recording, conveyance
and similar taxes arising out of, in
connection with or related to the
transactions contemplated by this
Agreement.
5. NON COMPETITION AGREEMENT. Seller and SRC shall enter into a
non
competition agreement prohibiting the
ownership, operation, or participation in
any manner by Seller, SRC and any affiliate
of them in any retail eye glass
store in competition with Buyer in Lake,
Porter and LaPorte Counties in the
State of Indiana for a three (3) year
period commencing on the Effective Time
(the "Non Competition Agreement").
"Affiliate" as used in this Section 5, means
any person or entity who controls, is
controlled by, or is under common control
with Seller or SRC, either directly or
indirectly through intermediaries.
6. CLOSING. The closing of the transactions contemplated by
this
Agreement (the "Closing") shall take place
on or before January 28, 2005 or at
such other date and time to which the
parties may agree (the "Closing Date"). At
the Closing:
6.1 Buyer's Payments and Deliveries. Buyer shall deliver to
Seller:
(a) the successful bid amount, plus or minus any
adjustments provided for in this Agreement,
in immediately available funds by
wire transfer to a bank account designated
by Seller;
(b) one or more agreements effecting the assignment to
Buyer of the Store Leases and Assumed
Contracts;
(c) a certified copy of the consent of the board of
directors of Buyer authorizing and
directing Buyer to enter into and perform its
obligations under this Agreement; and
(d)
such other documents, instruments and deliveries as
Seller reasonably may request.
6.2 Seller's
Deliveries. Seller
shall deliver to Buyer:
(a) a bill of sale conveying all of the Assets to Buyer;
(b) one or more agreements effecting Seller's assignment
of the Store Leases and Assumed
Contracts;
(c) a certified copy of the consent of the board of
directors of Seller authorizing and
directing Seller to enter into and perform
its obligations under this Agreement;
(d) the Non Competition Agreement executed by Seller and
SRC; and
(e) such other documents, instruments and deliveries as
Buyer reasonably may request.
The purchase and sale of the Assets shall
be effective at 6:00 p.m. local time
on the Closing Date (the "Effective Time").
Closing shall take place at a
location mutually agreed on by the parties.
Buyer shall be given possession of
the Assets at the Effective Time. Until the
Effective Time, all employees of
Seller shall continue to be its employees,
and all business operations of Seller
shall be for Seller's account and risk and
Seller shall bear all risk of loss.
7. REPRESENTATIONS AND
WARRANTIES OF SELLER. If and only to the extent
that under applicable federal, state or
local law the breach of any of the
following
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representations or warranties would result
in, or fail to disclose, a lien upon
or claim against the Assets, or result in a
claim against Buyer for a liability
of Seller (other than the Assumed
Liabilities), and subject to its obligations
as a debtor-in-possession under the
Bankruptcy Code, Seller hereby represents
and warrants to and covenants with Buyer
that:
7.1 Organization. Seller is a corporation duly organized,
validly existing and in good standing under
the laws of the State of Delaware
and is the sole owner of the Assets.
Subject to its obligations as a
debtor-in-possession under the Bankruptcy
Code, Seller has full authority and
power to carry on the Business as it is now
conducted.
7.2 Authority and Enforceability.
(a) Seller has and at the Closing will have all
requisite power, right and authority to
enter into this Agreement and to
consummate the transactions contemplated by
this Agreement. All action required
under applicable law has been or will be
taken by the board of directors of
Seller to authorize Seller's execution of,
and the consummation of the
transactions contemplated by, this
Agreement. This Agreement and each other
agreement and instrument to be executed by
Seller in connection herewith have
been (or upon execution will have been)
duly executed and delivered by Seller
and constitute (or upon execution will
constitute) legal, valid and binding
obligations of Seller enforceable against
Seller in accordance with their
respective terms.
(b) All consents, approvals and authorizations and all
other requirements prescribed by any law,
rule or regulation which must be
obtained or satisfied by Seller and which
are necessary for the execution and
delivery by Seller of this Agreement and
the documents to be executed and
delivered by Seller in connection herewith
and in order to permit the
consummation of the transactions
contemplated by this Agreement have been
obtained and satisfied or will be obtained
and satisfied by the Closing.
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7.3 No Violation or Conflict. The execution and delivery of
this Agreement, the consummation of the
transactions contemplated hereby and the
fulfillment of the terms hereof will not
violate or result in a breach of any of
the terms or provisions of, or constitute a
default (or an event which, with
notice or the passage of time, or both,
would constitute a default) under, or
conflict with or result in the termination
of, or accelerate the performance
required by any: (a) agreement, indenture,
contract or other instrument to which
Seller is a party or by which Seller or the
Assets are bound except the loan
agreements between Seller and CadleRock
Joint Venture, L.P.; (b) Seller's
Articles of Incorporation; (c) any
judgment, decree, order or award of any
court, governmental body or arbitrator by
which Seller or the Assets are bound;
or (d) any law, rule or regulation
applicable to Seller or the Assets.
7.4 Title to Assets. Seller has good title to, is the sole
lawful owner of, and has the right to use
all of the Assets and at the Closing
will transfer the Assets to Buyer free and
clear of all liens, mortgages,
leases, pledges, security interests,
restrictions, prior assignments,
encumbrances and claims of any kind or
nature.
7.5 Store Leases a
