SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
UNDER THE SECURITIES EXCHANGE ACT OF 1934
(AMENDMENT NO.1)
Sight Resource Corporation
--------------------------
Name of Issuer)
Common Stock, par value $.01 per share
--------------------------------------
(Title of Class of Securities)
82655N105
---------
(CUSIP Number)
Carene S. Kunkler
6725 Miami Avenue
Cincinnati, Ohio 45243
(513) 527-9700
(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)
December 31, 2002
-----------------
(Date of Event Which Requires Filing of This Statement)
If the filing person has previously filed a statement on Schedule 13G
to report the acquisition that is the subject of this Schedule 13D, and is
filing this schedule because of Rule 13d-1(e), 13d-1(f), or 13d-1(g), check the
following box [ ].
Note. Schedules filed in paper format shall include a signed
original and five copies of the schedule, including all exhibits. See
Rule 13d-7 for other parties to whom copies are to be sent.
1. The remainder of this cover page shall be filled out for a reporting
person's initial filing on this form with respect to the subject class of
securities, and for any subsequent amendment containing information which would
alter the disclosures provided in a prior cover page.
The information required in the remainder of this cover page shall not
be deemed to be "filed" for the purpose of Section 18 of the Securities Exchange
Act of 1934 ("Act") or otherwise subject to the liabilities of that section of
the Act but shall be subject to all other provisions of the Act (however, see
the Notes).
CUSIP No. 82655N105 13D Page 2 of 25 Pages
1 NAME OF REPORTING PERSON LA SESTA S.A.
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [ ]
(See Instructions) (b)
3 SEC USE ONLY
4 SOURCE OF FUNDS (See Instructions) WC
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) or 2(e) [ ]
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Luxembourg
NUMBER OF 7 SOLE VOTING POWER
5,980,511
SHARES
BENEFICIALLY 8 SHARED VOTING POWER
OWNED BY
9 SOLE DISPOSITIVE POWER
EACH 5,980,511
REPORTING
10 SHARED DISPOSITIVE POWER
PERSON WITH
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
5,980,511
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
(See Instructions) [ ]
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
12.4%
14 TYPE OF REPORTING PERSON (See Instructions)
CO
CUSIP No. 82655N105 13D Page 3 of 25 Pages
ITEM 1. SECURITY AND ISSUER.
The title of the class of equity securities to which this
Schedule 13D (the "Statement") relates is common stock, par value $.01 per share
("Common Stock"), of Sight Resource Corporation, a Delaware corporation ("SRC").
The principal executive offices of SRC are located at 6725 Miami Avenue,
Cincinnati, OH 45243.
ITEM 2. IDENTITY AND BACKGROUND.
This Statement is being filed by La Sesta S.A. ("La Sesta")
(the "Reporting Person").
La Sesta is a Luxembourg corporation. Its business address is
c/o MEVEA s.a.r.l. (attention Mr. R. Meneguz), 6-12 Place d'Armes L-1136,
Luxembourg.
Directors of La Sesta are:
Residence or Business Country of
Director Address Citizenship
-------- ------- -----------
Marco Brustio Piazza Parrocchiale 1 Italy
21020 Galliate
Lombardo (VA)
Italy
Giovanni Orsi Mazzucchelli Via Petrarca 24 Italy
21100 Varese
Italy
Marco Orsi Mazzucchelli Via Petrarca 20 Italy
21100 Varese
Italy
Mr. Brustio is a director of SRC.
During the last five years, La Sesta has not been convicted in
a criminal proceeding, excluding traffic violations or similar misdemeanors.
During the last five years, La Sesta has not been a party to a
civil proceeding of a judicial or administrative body of competent jurisdiction
as a result of which it was or is subject to a judgment, decree or final order
enjoining future violations of, or prohibiting or mandating activities subject
to, federal or state securities laws or finding any violation with respect to
such laws.
CUSIP No. 82655N105 13D Page 4 of 25 Pages
ITEM 3. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION.
La Sesta holds 5,980,511 shares of Common Stock of SRC. Such
shares (or the shares of eyeshop.com inc. which were converted into shares of
SRC in connection with the acquisition of eyeshop.com inc by SRC) were acquired
by La Sesta through the use of working capital.
ITEM 4. PURPOSE OF TRANSACTION.
(a) Of the shares of Common Stock of SRC held by La Sesta,
2,980,511 were acquired in connection with (i) the acquisition of eyeshop.com
inc by SRC and (ii) the related direct purchase of shares from SRC. Information
with regard to those transactions appears in Item 4 to the Schedule 13D of La
Sesta and certain other parties dated June 4, 2001 and filed with the Securities
and Exchange Commission ("SEC") on that date. Such information is hereby
incorporated by reference.
(b) Pursuant to a Common Stock Purchase Agreement (the
"Purchase Agreement") among SRC and the parties listed below, on December 31,
2002 the parties listed below purchased from SRC the number of shares of Common
Stock indicated below. The shares were sold and purchased in a private placement
at a purchase price of $0.20 per share (the "Private Placement"):
Purchaser Number of Shares Aggregate Purchase Price
--------- ---------------- ------------------------
Carlyle Venture Partners, L.P. 1,940,295 $ 388,059
Carlyle U.S. Venture Partners, L.P. 257,335 $ 51,467
C/S Venture Investors, L.P. 396,255 $ 79,251
Carlyle Venture Coinvestment, L.L.C. 156,115 $ 31,223
E. Dean Butler 1,250,000 $ 250,000
Excalibur Investments B.V. 5,500,000 $1,100,000
La Sesta S.A. 3,000,000 $ 600,000
Also pursuant to the Purchase Agreement and as of December 31,
2002, SRC issued to Carlyle Venture Partners, L.P., C/S Venture Investors, L.P.,
Carlyle U.S. Venture Partners, L.P. and Carlyle Venture Coinvestment, L.L.C.
(the "Carlyle Entities") an aggregate of 1,849,625 shares of Common Stock as
payment of accrued and unpaid dividends on the shares of Series B Convertible
Preferred Stock, par value $.01 per share (the "Preferred Stock"), held by the
Carlyle Entities.
Also pursuant to the Purchase Agreement and as of December 31,
2002, the Carlyle Entities converted all shares of Preferred Stock held by them
into an aggregate of 3,243,900 shares of Common Stock.
Also pursuant to the Purchase Agreement, the Carlyle Entities
and SRC agreed to the cancellation of certain warrants (being referred to as
Class I (Mirror) Warrants) representing an obligation to purchase an aggregate
of 62,884 shares of Common Stock.
CUSIP No. 82655N105 13D Page 5 of 25 Pages
La Sesta purchased the additional shares (i) for the purpose of
investment and (ii) to provide to SRC a portion of the funds required by SRC in
connection with the Sixth Loan Modification Agreement (described below).
On December 31, 2002, CadleRock Joint Venture L.P.
("CadleRock") purchased from the holder thereof indebtedness of SRC having a
face amount of $7,120,000. In connection with such purchase, SRC entered into a
Sixth Loan Modification Agreement (the "Modification Agreement") with CadleRock.
Pursuant to the Modification Agreement, (i) SRC paid to CadleRock $1,560,000 and
(ii) CadleRock agreed to the reduction to $2,000,000 of the balance of the
indebtedness owing by SRC. The $2,000,000 is payable June 30, 2004 and bears
interest at the rate of 12% per annum. A $200,000 termination fee is payable by
SRC to CadleRock at the time of payment of the $2,000,000.
A portion of the $2,500,000 received by SRC in consideration of
the shares issued in the Private Placement was used to fund the $1,560,000
payment to CadleRock.
The Purchase Agreement provides that, for a period of three
years, the Board of Directors of SRC shall take such action as may be consistent
with its fiduciary duties to cause the Board of Directors to remain consistent
with its current composition, subject to the following: (i) Mr. Dino Tabacchi (a
director of SRC and an affiliate of Excalibur Investments B.V.) and one
representative of the Carlyle Entities will be members of the Board; (ii) Mr.
Marco Brustio (who was elected to the Board on December 31, 2002 and who is a
director of La Sesta) will be a member of the Board; and (iii) the Board shall
nominate an additional director who shall have significant financial and
accounting expertise and who is neither employed by SRC nor any affiliate of SRC
as an employee or consultant, and the identity and financial and accounting
experience of such director shall be reasonably satisfactory to the Carlyle
Entities; and (iv) Mr. Tabacchi shall have the right to designate a director to
fill the first vacancy on the Board (other than vacancies related to the
positions reserved for the Carlyle Entities and Mr. Brustio).
On December 31, 2002, Mr. Dino Tabacchi, La Sesta, and the
Carlyle Entities entered into a Put and Right of First Refusal Agreement (the
"Put Agreement"). Under the Put Agreement, the Carlyle Entities were granted the
right to require Mr. Tabacchi and La Sesta or their permitted assigns to
purchase from the Carlyle Entities an aggregate of up to 7,000,000 shares of
Common Stock of SRC at the purchase price, in the amounts, during the periods
and on the terms set forth in the Put Agreement. Of the 7,000,000 shares, Mr.
Tabacchi (and his permitted assigns) may be required to purchase up to 5,600,000
shares (subject to the further limitation that the aggregate purchase price
shall not exceed $4,000,000), and La Sesta (and its permitted assigns) may be
required to purchase up to 1,400,000 shares (subject to the further limitation
that the aggregate purchase price shall not exceed $1,000,000).
CUSIP No. 82655N105 13D Page 6 of 25 Pages
ITEM 5. INTEREST IN SECURITIES OF THE ISSUER.
La Sesta owns 5,980,511 shares of Common Stock of SRC,
constituting 12.4% of all shares outstanding.
La Sesta has sole power to vote or to direct the vote of, and
to dispose or direct the disposition of, all shares owned by it.
Other than as described in this Statement, no transactions in
shares of Common Stock of SRC were effected during the past 60 days by La Sesta.
ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR
RELATIONSHIPS WITH RESPECT TO SECURITIES OF THE ISSUER.
(a) Information with respect to contracts, arrangements,
understandings or relationships relating to the shares of Common Stock of SRC
acquired by La Sesta in connection with the acquisition of eyeshop.com inc by
SRC appears in Item 6 of the Schedule 13D of La Sesta and certain other parties
dated June 4, 2001 and filed with the SEC on that date. Such information is
hereby incorporated by reference.
(b) On December 31, 2002, Mr. Dino Tabacchi, La Sesta, and the
Carlyle Entities entered into a Put and Right of First Refusal Agreement (the
"Put Agreement"). Under the Put Agreement, the Carlyle Entities were granted the
right to require Mr. Tabacchi and La Sesta or their permitted assigns to
purchase from the Carlyle Entities an aggregate of up to 7,000,000 shares of
Common Stock of SRC at the purchase price, in the amounts, during the periods
and on the terms set forth in the Put Agreement. Of the 7,000,000 shares, Mr.
Tabacchi (and his permitted assigns) may be required to purchase up to 5,600,000
shares (subject to the further limitation that the aggregate purchase price
shall not exceed $4,000,000), and La Sesta (and its permitted assigns) may be
required to purchase up to 1,400,000 shares (subject to the further limitation
that the aggregate purchase price shall not exceed $1,000,000).
The Put Agreement also grants to Mr. Tabacchi and La Sesta the
right to purchase shares that the Carlyle Entities propose to sell to a third
party. The terms under which Mr. Tabacchi and La Sesta may purchase such shares
are to be no less favorable than those offered by the third party purchaser.
ITEM 7. MATERIAL TO BE FILED AS EXHIBITS.
Exhibit 1 Common Stock Purchase Agreement dated as of
December 30, 2002 (incorporated by reference from
Exhibit 10.39 to SRC's Current Report on Form 8-K
dated January 9, 2003 and filed with the SEC on
January 10, 2003).
Exhibit 2 Put and Right of First Refusal Agreement dated
as of December 31, 2002.
CUSIP No. 82655N105 13D Page 7 of 25 Pages
Exhibit 3 Items 4 and 6 of the Schedule 13D of La Sesta
S.A. and certain other parties dated June 4, 2001
and filed with the SEC on that date are hereby
incorporated by reference.
Exhibit 4 Power of Attorney of La Sesta S.A.
SIGNATURE
After reasonable inquiry and to the best of my knowledge and
belief, I certify that the information set forth in this statement is true,
complete and correct.
Date: January 10, 2003
/s/ Duane Kimble Jr.
--------------------------------------
Duane Kimble Jr., as Attorney-In-Fact
for La Sesta S.A.
CUSIP No. 82655N105 13D Page 8 of 25 Pages
EXHIBIT 2
PUT AND RIGHT OF FIRST REFUSAL AGREEMENT
THIS PUT AND RIGHT OF FIRST REFUSAL AGREEMENT is made and entered into
as of the 31 day of December 2002 (this "Agreement"), by and among Dino Tabacchi
("Tabacchi"), La Sesta S.A., a Luxembourg company represented by Marco Brustio
("La Sesta"), and Carlyle Venture Partners, L.P. , C/S Venture Investors, L.P.,
Carlyle U.S. Venture Partners, L.P. and Carlyle Venture Coinvestment, L.L.C.
(collectively, "Carlyle"). Tabacchi, La Sesta and Carlyle are sometimes referred
to herein individually as a "Party" and collectively as the "Parties."
W I T N E S S E T H:
WHEREAS, Tabacchi, La Sesta and Carlyle are parties to the Common Stock
Purchase Agreement dated of even date herewith (the "Purchase Agreement"), by
and among the Parties and E. Dean Butler (sometimes referred to hereafter
together with Tabacchi, La Sesta and Carlyle, collectively, as the "Securities
Purchasers") and Sight Resource Corporation, a Delaware corporation ("SRC"),
pursuant to which each of them has committed to acquire shares of Common Stock
of SRC ("Common Stock"), in the amounts, at the purchase price and on the terms
and conditions specified therein; and
WHEREAS, as consideration to induce Carlyle to commit to acquire
additional shares of Common Stock pursuant to the Purchase Agreement and to
agree to convert all of the shares of Series B Convertible Preferred Stock of
SRC (the "Series B Stock") held by Carlyle into shares of Common Stock pursuant
to the terms of the Purchase Agreement, SRC has agreed to pay all accrued and
unpaid dividends on the Series B Stock to Carlyle through the issuance of
additional shares of Common Stock pursuant to the terms of the Purchase
Agreement, and Tabacchi and La Sesta have agreed to grant to Carlyle the right
to cause the Shares (as hereafter defined) to be purchased by Tabacchi and La
Sesta (or their Permitted Grantor Transferees) in the amounts and under the
terms and conditions provided in this Agreement; and
WHEREAS, as consideration to induce Tabacchi and La Sesta to commit to
acquire additional shares of Common Stock pursuant to the Purchase Agreement,
Carlyle agrees to convert all of the shares of Series B Convertible Preferred
Stock of SRC (the "Series B Stock") held by Carlyle into shares of Common Stock
and to cancel the Class I (Mirror) and Class II Warrants of the Company held by
Carlyle, simultaneously with the closing of the sale of shares of Common Stock
pursuant to the Purchase Agreement.
NOW, THEREFORE, the Parties having duly authorized the execution and
delivery of this Agreement as required by the laws of the jurisdiction in which
each is organized or incorporated, and in consideration of the premises and the
mutual covenants and agreements herein, and intending to be bound hereby, the
Parties agree as follows:
1
CUSIP No. 82655N105 13D Page 9 of 25 Pages
ARTICLE I
DEFINITIONS
SECTION 1.01 Definitions
Capitalized terms used and not otherwise defined in this Agreement have the
meanings respectively ascribed to them in the Purchase Agreement. In addition,
the following terms when capitalized have the following meanings in this
Agreement:
(a) "Affiliate" means, with respect to any Person, a Person that
directly or indirectly, through one or more intermediaries, controls, is
controlled by, or is under common control with, the Person specified.
(b) "Business Day" means any day on which commercial banks are
not authorized or required by law to close in Cincinnati, Ohio.
(c) "Common Stock" means the common stock, par value $.01 per
share, of SRC.
(d) "Entity" means a partnership, a joint venture, a
corporation, a trust, a limited liability company or any other organization
legally organized under the laws of any jurisdiction.
(e) "Fair Market Value" means the average close price of shares
of Common Stock as quoted on the OTC Bulletin Board (or such other primary
bulletin board or exchange or market system on which shares of Common Stock are
then quoted or listed) for the latest 30 trading days ended as of the last day
of each quarter during which the Put Notice exercising the Put Option has been
delivered to the Grantors, without including in such calculations the highest
and lowest price of the shares of Common Stock achieved during such period, such
high and low prices to be eliminated only once in computing each
such average. In the event the closing prices required by the preceding sentence
are unavailable, Fair Market Value shall be determined using a method to be
mutually agreed to by the Grantors and Carlyle negotiating in good faith, and if
Tabacchi and La Sesta fail to negotiate with, or if Tabacchi, La Sesta and
Carlyle cannot agree to such method or Fair Market Value, within 10 days after
the date that Fair Market Value was initially to be determined, the Fair Market
Value shall be the amount determined by one of the three largest nationally
recognized accounting firms based on annual revenues, who shall be selected by
Carlyle. Carlyle shall give notice of such selection to Tabacchi and La Sesta
within five days after making such selection, and such selection shall be final
and binding on all the Parties to this Agreement, unless Tabacchi and La Sesta
shall object to such selection within five days after receiving notice from
Carlyle pursuant to Section 4.07 of this Agreement, by written notice to
Carlyle, which notice shall propose one of the other two remaining largest
accounting firms based on annual revenues to determine the Fair Market Value. If
Tabacchi and La Sesta notify Carlyle within the time period specified in the
preceding sentence and propose an alternative accounting firm, Carlyle has five
days after Tabacchi and La Sesta provides notice to Carlyle to object to their
proposal, in which case the remaining one of the three largest
2
CUSIP No. 82655N105 13D Page 10 of 25 Pages
accounting firms based on annual revenues, which has not been selected by any of
the Parties hereto shall be the firm engaged to determine Fair Market Value.
(f) "First Put Period" means the first three full quarters
commencing on the Put Period Commencement Date and ending on the last day of the
third full quarter following the Put Period Commencement Date.
(g) "Grantee" means individually, Carlyle Venture Partners,
L.P., C/S Venture Investors, L.P., Carlyle U.S. Venture Partners, L.P. and
Carlyle Venture Coinvestment, L.L.C., and "Grantees" mean collectively, Carlyle.
(h) "Grantor" means individually, Tabacchi, La Sesta or each
Permitted Grantor Transferee, and "Grantors" mean collectively, Tabacchi, La
Sesta and all Permitted Grantor Transferees.
(i) "La Sesta" has the meaning ascribed to it in the
introductory paragraph to this Agreement.
(j) "New Securities" mean all shares of Common Stock issued to
Carlyle (i) pursuant to the Purchase Agreement, (ii) upon conversion of the
Series B Stock, and (iii) the Dividend Shares, as adjusted for stock splits,
reverse stock splits and Common Stock dividends declared and paid on account of
shares of Common Stock and any recapitalization, reorganization, merger, sale of
assets or similar transaction.
(k) "Permitted Grantor Transferee" means any Entity who Tabacchi
or La Sesta, as the case may be, has substituted as the grantor and obligor of
all of Tabacchi's or La Sesta's obligations pursuant to the Put Option or the
Right of First Refusal, as applicable, subject to fulfillment of the following
conditions: (i) such Entity is demonstrably able to fulfill all monetary
obligations required to purchase all Shares required to be purchased by Tabacchi
or La Sesta, as applicable, pursuant to the Put Option or the Right of First
Refusal, as applicable, (ii) such Entity meets (and does not violate) and
complies with all applicable legal and regulatory requirements as may be imposed
by federal, state, local and foreign jurisdictions and governmental agencies and
authorities upon each of the Parties to this Agreement and SRC and with respect
to the transactions provided for by this Agreement, and (iii) such Entity
becomes a party to this Agreement by executing and delivering to Carlyle a
counterpart of the signature page to this Agreement.
(l) "Person" means and includes an individual, a partnership, a
joint venture, a corporation, a trust, a limited liability company, an
unincorporated organization, any foreign, federal, state or local court or
tribunal or administrative, governmental or regulatory body, agency commission,
division, department, public body or other authority, or any other organization
or entity.
(m) "Purchase Agreement" has the meaning ascribed to it in the
Recitals to this Agreement.
3
CUSIP No. 82655N105 13D Page 11 of 25 Pages
(n) "Put Option" means Carlyle's right and option to require
each Grantor, on the terms and conditions set forth in this Agreement, to
purchase the Shares, effective as of the date of this Agreement.
(o) "Put Period Commencement Date" means the date that is the
later of (i) January 1, 2003 or (ii) the date that Carlyle and the other
Securities Purchasers acquire shares of Common Stock pursuant to the Purchase
Agreement.
(p) "Put Term" means (a) the period commencing on the Put Period
Commencement Date, and (b) ending on the last day of the ninth full quarter
after such Put Period Commencement Date, plus (c) all Extensions.
(q) "Second Put Period" means the three full quarters commencing
on the first day of the fourth full quarter following the Put Period
Commencement Date and ending on the last day of the sixth full quarter following
the Put Period Commencement Date.
(r) "Securities Purchasers" has the meaning ascribed to it in
the Recitals to this Agreement.
(s) "Shares" means 7,000,000 shares of Common Stock (including
New Securities), as adjusted from time to time for stock splits, reverse stock
splits and Common Stock dividends declared and paid on account of shares of
Common Stock and any recapitalization of the Company where such securities are
issued to all stockholders of the Company on a pro rata basis.
(t) "SRC" has the meaning ascribed to it in the Recitals of
this Agreement.
(u) "Subsidiary" means any Person of which a Party shall now or
hereafter own or be owned by, directly or indirectly, through one or more
Subsidiaries or otherwise, a Person holding equity interests representing 100%
of the voting securities of such Person.
(v) "Tabacchi" has the meaning ascribed to it in the
introductory paragraph to this Agreement.
(w) "Third Put Period" means the three full quarters commencing
on the first day of the seventh full quarter following the Put Period
Commencement Date and ending on the last day of the ninth full quarter following
Put Period Commencement Date.
(x) "Trading Day" with respect to a securities exchange or
quotation system or bulletin board means a day on which such exchange or
quotation system or bulletin board is open and conducting business.
(y) "Transfer" (including with correlative meanings, the terms
"transferring" and "transferred") means the direct or indirect sale, assignment,
transfer, grant of a participation or derivative interest in, pledge or other
disposition of any Shares (or solicitation of any offers to buy or otherwise
acquire, or take a pledge of, any Shares).
4
CUSIP No. 82655N105 13D Page 12 of 25 Pages
SECTION 1.02 Other Terms.
Each of the following terms is defined in the Section set forth opposite such
term:
Term Section
---- -------
Carry-Over Shares 2.02
Excess Exercised Shares 2.04(c)
Extensions 2.02
Proposed Transferee 3.01
Offer 3.01
Offerees 3.01
Offered Shares 3.01
Offered Shares Closing 3.03
Over-Allotment Right 3.02
Purchasers 3.02
Put Closing 2.04(b)
Put Period 2.02
Put Notice 2.03
Put Period 2.01
Put Price 2.04(a)
Right of First Refusal Exercise Notice 3.02
Standoff 2.02
Standoff Conditions 2.02
ARTICLE II
PUT RIGHTS
SECTION 2.01 Grant of Put Rights.
Subject to the terms and conditions of this Agreement, Tabacchi and La Sesta,
and each of their Permitted Grantor Transferees, irrevocably grants and issues
to each Grantee a Put Option to require the Grantors to purchase the Shares, in
whole or in part, exercisable in such Grantee's sole discretion, during the Put
Period, at the Put Price, in the following proportions: (a) one-third or
2,333,333 Shares for the First Put Period; (b) one-third or 2,333,333 Shares for
the Second Put Period, and (c) one-third or 2,333,333 Shares for the Third Put
Period (and with the First Put Period and Second Put Period, sometimes referred
to individually, as a "Put Period" and collectively, as the "Put Periods"). By
way of clarification and not limitation, the Grantees may exercise the Put
Option as of the last Business Day of any given quarter within a Put Period for
as many Shares as it may determine subject to the above maximums (for example,
the Grantees may, but are not required to, exercise the Put Option for the
entire 2,333,333 Shares for the First Put Period, in the first quarter). If at
the last day of the First Put Period, Second Put Period or Third Put Period, as
the case may be, Grantees have not exercised the Put Option with respect to any
of the Shares allocable to such Put Period, the Grantees' right to exercise the
Put Option and to require the Grantors to purchase such Shares shall expire,
subject to the Grantees' right, in the event of a Standoff, to carry-over any
Shares to the remaining quarters of the Put Term, as
5
CUSIP No. 82655N105 13D Page 13 of 25 Pages
described in Section 2.02 below. The Grantors obligations to acquire Shares
shall be up to the following maximum amounts: (a) Tabacchi and his Permitted
Grantor Transferees shall be obligated to purchase and acquire up to an
aggregate of 5,600,000 Shares, except that Tabacchi and his Permitted Grantor
Transferees shall not be required to purchase such shares at any Put Closing (as
hereafter defined) if the aggregate purchase price for all Shares purchased by
Tabacchi and its Permitted Grantor Transferees would then exceed $4,000,000, and
(b) La Sesta and its Permitted Grantor Transferees shall be obligated to acquire
up to an aggregate of 1,400,000 Shares except that La Sesta and its Permitted
Grantor Transferees shall not be required to purchase such shares at any Put
Closing if the aggregate purchase price for all Shares purchased by La Sesta and
its Permitted Grantor Transferees would then exceed $1,000,000. The Grantors
shall have no rights or interests in any Shares that are not purchased and paid
for by them.
SECTION 2.02 Put Period and Standoff.
The Put Option shall continue in effect during the Put Term and all Extensions
thereof, except that if as of the last day of any quarter during the Put Period
the index for the national market of the Nasdaq Stock Market, Inc. ("Nasdaq") or
any successor thereto, as reported by Nasdaq, has increased (i) by 60% or more
during the prior six-month period as reported for the first day of such
six-month period and the last day of such six-month period, or (ii) by 120% or
more during the prior 12 month period as reported for the first day of such
12--month period and the last day of such 12-month period (collectively, the
"Standoff Conditions"), the Put Option relating to such quarter shall not be
exercisable by any Grantee (each case being a "Standoff"). If a Standoff shall
be in effect at the end of the First Put Period, Second Put Period or Third Put
Period, as the case may be, the Grantees shall carry-over any unexercised Shares
(the "Carry-Over Shares") allocable to such Put Period, by reallocating those
Carry-Over Shares on a pro-rata basis to the remaining Put Periods during the
Put Term; provided, that if any Standoff is in effect as of the end of the Third
Put Period, the Put Term shall be extended by successive full quarters (each an
"Extension" and together the "Extensions") until such time as such Standoff
Conditions shall be no longer in effect. Following each Standoff, the Put Option
shall resume being exercisable by the Grantees on each date that the Standoff
shall no longer be in effect. In the final quarter of an Extension, the Grantees
shall have the right to exercise the Put Option, and, if so exercised, the
Grantors shall have the obligation to purchase, all remaining Shares that have
not yet been purchased by the Grantors.
SECTION 2.03 Put Notice.
The Put Option may be exercised in the sole discretion of each Grantee by
delivering written notice ("Put Notice") of exercise to the Grantor as of the
last day of each quarter within a Put Period. The Put Notice shall indicate the
number of Shares each Grantee is putting to the Grantors. Upon receipt of a Put
Notice in accordance with the terms hereof, the applicable Grantees shall be
obligated to sell all of the Shares to which the Put Notice relates, free and
clear of all liens and encumbrances created by each of them or their respective
Affiliates (other than pursuant to this Agreement). The Grantors shall be
obligated to purchase pro rata all of such Shares put by the applicable
Grantees, at the applicable Put Price in accordance with, and subject to, the
terms of this Agreement; provided, however, that the Put Option may not be
exercised if
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CUSIP No. 82655N105 13D Page 14 of 25 Pages
the Standoff Conditions have occurred and are continuing. For purposes of the
foregoing sentence, the "pro rata" portion of Shares that Tabacchi and its
Permitted Grantor Transferees on the one hand, and La Sesta and its Permitted
Grantor Transferees on the other hand, shall be obligated to purchase, shall
mean a fraction, (A) the numeration of which shall be 5,600,000 in the case of
Tabacchi and his Permitted Grantor Transferees, and 1,400,000 in the case of La
Sesta and its Permitted Grantor Transferees and the (B) denominator of which
shall be 7,000,000, subject to the aggregate limitations set forth in Section
2.01 of this Agreement.
SECTION 2.04 Put Price; Closing and Limitation on Shares.
(a) The "Put Price" at which the Put Shares shall be sold to the
Grantors shall be the Fair Market Value determined as of the last day of each
quarter for which the Put Option has been exercised. Notwithstanding anything
herein to the contrary, the Put Price shall not (a) exceed $1.00 per share, and
(b) be less than $0.20 per share, provided, further, that the Put Price at which
the first 2,333,333 Shares sold to and purchased by the Grantors during the last
five quarters of the Put Term shall be not less than $0.30 per share.
(b) The Grantees shall be obligated to sell, and the Grantors
shall be obligated to pay the purchase price for and acquire, the Shares being
sold and purchased pursuant to each Put Notice at the Put Closing (as hereafter
defined). The closing of the purchase and sale of Shares pursuant to each Put
Option, shall take place at the principal office of Carlyle or at such other
location as the Parties shall mutually agree, on a Business Day to be mutually
agreed upon by the Grantors and the Grantees, which date shall be no later than
30 days following the last day of the quarter during which the Put Notice was
delivered, or if the Parties do not mutually agree to a closing date, the
closing date shall be the next Business Day following such thirtieth day (each a
"Put Closing"); provided, however, that if the purchase of Shares is subject to
prior regulatory approval, the Grantors and Grantees will use their reasonable
best efforts to obtain the necessary regulatory approvals and the Put Closing
shall be postponed until the expiration of five Business Days after the date
that all such regulatory approvals shall have been received. At each Put
Closing, the Grantees shall deliver to the Grantors the certificates
representing the Shares being sold pursuant to the exercise of such Put Option,
duly endorsed or accompanied by stock powers executed in blank, in form and
substance customary in the United States of America for transactions of this
type, and evidence reasonably satisfactory to the Grantor that the Shares are
being transferred free and clear of all liens and encumbrances created by such
Grantee or its Affiliates (it being understood that in no event shall a Grantee
be obligated to make any representations and warranties, or to provide any
indemnities, with respect to (i) any matters relating to the Company, or (ii)
with respect to any other matters other than (1) title to the Shares held by
such Grantee, such title being free and clear of all liens and encumbrances
created by it or its Affiliates, (2) such Grantee's authority, authorization and
right to enter into and consummate the sale without contravention of any law or
agreement, and without the need for any third party consent or approval (not
including any governmental or regulatory consent or approval which shall have
been applied for or received), and (3) the existence of pending or, to the
knowledge of the Grantee, threatened litigation involving such Grantee that
could reasonably be expected to prohibit or limit the sale of good title to the
Shares by such Grantee). At each Put Closing, the Grantors shall pay the Put
Price to each Grantee by delivery of cash by wire transfer to the accounts of
the applicable Grantees.
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CUSIP No. 82655N105 13D Page 15 of 25 Pages
(c) Notwithstanding anything in Section 2.04(b) to the contrary,
if Grantees exercise their Put Option (including Excess Exercised Shares, as
defined below, if any, carried over from the previous quarter) for more than an
aggregate of 777,777 Shares as of the last day of a quarter that is not the last
day of the First Put Period, Second Put Period or Third Put Period, or any
Extension thereof, as the case may be, the Put Closing and payment of the Put
Price for such number of Shares in excess of 777,777 (the "Excess Exercised
Shares") shall take place at a date not later than 30 days following the first
to occur of (i) the end of the next quarter during which Put Notices exercising
the Put Option for fewer than an aggregate of 777,777 Shares (including Excess
Exercised Shares) have been delivered to the Grantors, or (ii) the end of the
next quarter that shall be the last quarter of a Put Period, it being understood
that no payment shall be required to be made for more than 777,777 Shares for
any quarter in any Put Period, except for the last quarter in each Put Period at
which time the Grantors shall be obligated to purchase all Excess Exercised
Shares from the Grantees.
(d) If any of the Grantors do not pay the full amount of the Put
Price for all Shares to be purchased by such Grantors at any Put Closing or
during the Put Period, Article III, Right of First Refusal, immediately shall
terminate and no longer be in effect, and, at the Grantees' option, in their
sole discretion, the Grantees may (i) withdraw the exercise of the Put Option
with respect to such Shares, in which case they would retain all rights and
obligations with respect thereto, (ii) deem the exercise of the Put Option to
remain in effect, in which case, if the Grantors do not pay the Put Price within
30 days of the date of the Put Notice, the Put Price shall double, and (iii)
exercise all of their other rights and remedies, in law and in equity, pursuant
to this Agreement and otherwise. The Grantors and Grantees acknowledge and agree
that this Section 2.05 does not constitute a liquidated damages provision or a
penalty.
SECTION 2.05 Assignment.
Tabacchi and La Sesta may assign their respective rights and obligations to
purchase the Shares pursuant to the Put Option to their respective Permitted
Grantor Transferees. Notwithstanding an assignment of the Put Option by Tabacchi
or La Sesta, as the case may be, Tabacchi and La Sesta shall remain primarily
liable for all payment and performance obligations of the Grantors under the Put
Option and this Agreement.
SECTION 2.06 Exercise of Put Option Not a Transfer.
None of the exercises by Grantees of the Put Option, nor the consummation of the
transactions contemplated thereby, shall constitute a Transfer that is subject
to the Right of First Refusal set forth in Article III of this Agreement (by way
of example and not limitation, the sale of shares by a Grantee pursuant to the
Put Option to a Permitted Grantor Transferee, shall not require any Grantee to
comply with the Right of First Refusal provisions of Article III).
ARTICLE III
RIGHT OF FIRST REFUSAL
SECTION 3.01 Right of First Refusal.
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CUSIP No. 82655N105 13D Page 16 of 25 Pages
(a) During the Put Period, prior to selling any Shares to a
third party, Carlyle agrees that upon receipt of a bona fide written binding
offer (subject only to this Right of First Refusal) from a third party (the
"Proposed Transferee"), Carlyle shall submit a written offer (the "Offer") to
sell all Shares proposed to be purchased by the Proposed Transferee (the
"Offered Shares"), on terms and conditions, including price, not less favorable
than those on which Carlyle proposes to sell such Offered Shares to the Proposed
Transferee, to Tabacchi and La Sesta (the "Offerees").
(b) The rights of each Offeree shall be in addition to and
not in substitution of its rights and obligations under the Put Option.
(c) The Offer shall disclose the number of Offered Shares
proposed to be sold, the terms and conditions (including price) of the proposed
sale, and any other material facts relating to the proposed sale. The Offer
shall further state that the Offerees may acquire, in accordance with the
provisions of this Agreement, the Offered Shares for the price and upon the
other terms and conditions set forth therein.
SECTION 3.02 Notice of Intent to Purchase.
If the Offerees exercise their right to acquire the Offered Shares, such right
may only be exercised to acquire all such Offered Shares and not a portion of
such Offered Shares. If the Offerees desire to purchase the Offered Shares
offered to them, they shall communicate in writing their election to purchase
all the Offered Shares (the "Right of First Refusal Exercise Notice") to Carlyle
no later than 20 days after the date of the Offer (the parties providing such
Right of First Refusal Exercise Notice, are sometimes referred to hereafter
individually, as a "Purchaser," and collectively as, the "Purchasers"). If an
Offeree declines to purchase, or otherwise defaults and fails to purchase, any
Offered Shares, in order for the remaining Offerees to have the right to acquire
Offered Shares, such remaining Offerees shall be required to acquire the
declining Offeree's allotment of Offered Shares (the "Over-Allotment Right"), in
whole and not in part, and such Offerees shall provide written notice to Carlyle
specifying the number of additional Offered Shares it will acquire pursuant to
the Over-Allotment Right. Such Right of First Refusal Exercise Notice shall,
when taken in conjunction with the Offer, be deemed to constitute a valid,
binding and enforceable agreement for the sale and purchase of the Offered
Shares.
SECTION 3.03 Offered Shares Closing.
The closing of the purchase and sale of Offered Shares pursuant to the Offer,
shall take place no later than 30 days following the date of the Right of First
Refusal Exercise Notice at the principal office of Carlyle or at such other
location as the Parties shall mutually agree, on a Business Day to be mutually
agreed to by Carlyle and the Purchasers or if the Parties do not mutually agree
to a closing date, the closing date shall be the next Business Day following
such fifteenth day (the "Offered Shares Closing"), provided that if the purchase
of Offered Shares is subject to prior regulatory approval, Carlyle and the
Purchasers will use their reasonable best efforts to obtain the necessary
regulatory approvals and the Offered Shares Closing shall be postponed until the
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CUSIP No. 82655N105 13D Page 17 of 25 Pages
expiration of five Business Days after the date that all such regulatory
approvals shall have been received, except that if such regulatory approvals are
not received within 60 days following the date of the Right of First Refusal
Exercise Notice, Carlyle shall have the right to sell the Offered Shares
pursuant to Section 3.04 below. At the Offered Shares Closing, Carlyle shall
deliver to the Purchasers the certificates representing the Offered Shares duly
endorsed or accompanied by stock powers executed in blank, in form and substance
customary in the United States of America for transactions of this type to the
Purchasers, and evidence reasonably satisfactory to the Purchasers that the
Offered Shares are being transferred free and clear of all liens and
encumbrances created by Carlyle or its Affiliates (it being understood that in
no event shall a Grantee be obligated to make any representations and
warranties, or to provide any indemnities, with respect to (i) any matters
relating to the Company, or (ii) with respect to any other matters other than
(1) title to the Shares held by such Grantee, such title being free and clear of
all liens and encumbrances created by it or its Affiliates, (2) such Grantee's
authority, authorization and right to enter into and consummate the sale without
contravention of any law or agreement, and without the need for any third party
consent or approval (not including any governmental or regulatory consent or
approval which shall have been applied for or received), and (3) the existence
of pending or, to the knowledge of the Grantee, threatened litigation involving
such Grantee that could reasonably be expected to prohibit or limit the sale of
good title to the Shares by such Grantee). At the Offered Shares Closing, the
Purchasers shall pay the purchase price for the Offered Shares to Carlyle in
such amount and on such payment terms as set forth in the Offer.
SECTION 3.04 Sale to Third Party.
If the Purchasers do not exercise this Right of First Refusal in whole, or do
not offer to purchase all of the Offered Shares, the Offered Shares may be sold
by Carlyle at any time within three months after the date the Offer was made.
Any such sale shall be to the Proposed Transferee on terms and conditions not
materially different than those specified in the Offer. If any Offered Shares
are not sold within the three month period or if the terms of the Offer shall
change, the Offered Shares shall be subject to renewed compliance with the
requirements of the Right of First Refusal pursuant to Section 3.01. Any third
party to whom Shares are sold shall have no rights or obligations under this
Agreement. None of the provisions of this Article III shall be applicable to,
nor shall prohibit, the offer and sale of any Offered Shares in open market
transactions on any exchange, market system or bulletin board on which shares of
Common Stock are quoted, or offers and sales of the Shares can be made, from
time to time, and pursuant to the exercise of registration rights under the
Registration Rights Agreements with the Company to which the Grantees are party
covering Shares.
ARTICLE IV
MISCELLANEOUS
SECTION 4.01 Publicity.
To the extent that any of he Parties intends to issue any press release or make
any similar public announcement or communication regarding the execution or
performance of this Agreement, the transactions contemplated hereby, and the
ongoing business relationship between the Parties,
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CUSIP No. 82655N105 13D Page 18 of 25 Pages
which release, announcement or disclosure mentions any other Parties to this
Agreement, the Party making the disclosure shall consult with each of the
Parties so named in such disclosure; provided, however, that no Party shall be
restrained, after consultation with the other Parties, to the extent such
consultation is feasible, from making such disclosure as it shall be required to
make by applicable law or by applicable regulations of any regulatory body or
securities exchange.
SECTION 4.02 Equitable Relief.
The Parties hereto acknowledge and agree that it will be impossible to measure
the damages that would be suffered if any Party fails to comply with the
provisions of this Agreement that it is required to comply with and, in the
event of any such failure, the non-breaching Parties will have the right to
obtain specific performance of the breaching Party's obligations under this
Agreement and to obtain immediate injunctive relief. These rights shall be in
addition to, and not in substitution of, any other rights that any non-breaching
Party may have in law or in equity. Tabacchi, La Sesta and their Permitted
Grantor Transferees on the one hand, and Carlyle on the other hand, agree that
the rights, powers and remedies given to each other Party by this Agreement are
cumulative and concurrent and not exclusive of any thereof or of any other
powers, rights or remedies available to such Party, whether existing at law or
in equity of by statute or otherwise, and shall be in addition to every other
right, power or remedy provided in this Agreement, and the exercise or beginning
of the exercise by such Party of any one or more of such rights, powers and
remedies shall not preclude the simultaneous or later exercise by such Party of
any or all such other rights, powers and remedies. No failure on the part of any
Party to exercise any right, power or remedy shall operate as a waiver thereof.
SECTION 4.03 Entire Agreement.
Each Party expressly acknowledges and agrees that this Agreement is the final
expression of the Parties agreement, and supercedes all prior and
contemporaneous agreements and understandings, both oral and written, including
the Term Sheet dated November 27, 2002, by and among the Parties, with respect
to the subject matter hereof. Except as set forth in this Agreement, the Parties
hereto acknowledge that they are not Parties to, and have no knowledge of, any
agreements or understandings, both oral and written, to act in concert or as a
group (including, without limitation, as a group within the meaning of
Section13(d) of the Securities Exchange Act of 1934, as amended), or otherwise
act together, with respect to SRC or its securities.
SECTION 4.04 Binding Effect; Benefit.
This Agreement shall inure to the benefit and be binding upon the Parties hereto
and the Permitted Grantor Transferees, as the case may be, to the extent set
forth in this Agreement; and, in the case of a natural person, upon his
successors, assigns, heirs, legatees, distributees, estates, executors,
administrators, personal representatives and other legal representatives.
Nothing in this Agreement, expressed or implied, is intended to confer on any
Person other than the Parties hereto and their respective Permitted Grantor
Transferees, as the case may be, and, in the case of a natural person, upon his
successors, assigns, heirs, legatees, distributees, estates, executors,
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CUSIP No. 82655N105 13D Page 19 of 25 Pages
administrators, personal representatives and other legal representatives, any
rights, remedies, obligations or liabilities under or by reason of this
Agreement. Nothing in this Agreement, expressed or implied, shall confer on any
Party or Permitted Grantor Transferee, as the case may be, and, in the case of a
natural person, upon his successors, assigns, heirs, legatees, distributees,
estates, executors, administrators, personal representatives and other legal
representatives, any greater rights, remedies, obligations or liabilities than
as set forth in this Agreement.
SECTION 4.05 Assignability.
Except as set forth in this Agreement, neither this Agreement nor any right,
remedy, obligation or liability arising hereunder or by reason hereof shall be
assignable by any Party hereto or any Permitted Grantor Transferees.
SECTION 4.06 Amendment; Waiver; Termination.
No provision of this Agreement may be waived except by an instrument in writing
signed by the party against whom the waiver is to be effective. No provision of
this Agreement may be amended or modified except by an instrument in writing
signed by all of the parties who would have any rights or obligations under the
relevant provision the Agreement. This Agreement shall terminate on the day
following the last day of the Put Term.
SECTION 4.07 Notices.
All notices, consents, requests, instructions, approvals and other
communications provided for herein and all legal process in regard hereto shall
be deemed validly given, made or served and received, if delivered personally or
transmitted by facsimile transmission with receipt acknowledged by the addressee
or electronically, three days after being mailed by first class mail, or the
next Business Day after being deposited for next-day delivery with a nationally
recognized, receipted, overnight delivery service, charges and postage prepaid,
properly addressed to the Party to receive such notice or communication at the
addresses specified below:
To, Carlyle:
c/o Carlyle Venture Partners, L.P.
1001 Pennsylvania Avenue, NW
Suite 220 South
Washington, DC 20004
Attn: Ryan Schwarz
Fax: (202) 347-1818
with a copy (which shall not constitute notice) to:
Wilmer, Cutler & Pickering
2445 M Street, NW
Washington, DC 20037-1420
Attn: John B. Watkins
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CUSIP No. 82655N105 13D Page 20 of 25 Pages
Fax: 202-663-6363
To, Tabacchi:
Via Patriarcato 15
35100 Padova
Italy
Fax: 011-39-049-663138
with a copy (which shall not constitute notice) to:
Collier, Halpern, Newberg, Nolletti & Bock, LLP
One North Lexington Avenue
White Plains, NY 10601
Attn: David A. Newberg, Esq.
Fax: (914) 684-6986
To, La Sesta, S.A.
c/o MEVEA s.a.r.l.
6-12 Place d'Armes
L-1136 Luxembourg
Attn. Mr. R. Meneguz)
Fax: 011-39-0331-826370
with a copy (which shall not constitute notice) to:
Collier, Halpern, Newberg, Nolletti & Bock, LLP
One North Lexington Avenue
White Plains, NY 10601
Attn: David A. Newberg, Esq.
Fax: (914) 684-6986
or to such other address or facsimile number as any Party may, from time to
time, designate in a written notice given in a like manner to all of the other
Parties to this Agreement.
SECTION 4.08 Fees and Expenses.
If any action at law or in equity is necessary to enforce or interpret the terms
of this Agreement, the prevailing Party shall be entitled to reasonable
attorneys' fees, costs and disbursements in addition to any other relief to
which such Party may be entitled.
SECTION 4.09 Headings.
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CUSIP No. 82655N105 13D Page 21 of 25 Pages
The headings contained in this Agreement are for convenience only and shall not
affect the meaning or interpretation of this Agreement.
SECTION 4.10 Counterparts.
This Agreement may be executed in any number of counterparts (including
facsimiles), each of which shall be deemed to be an original and all of which
together shall be deemed to be one and the same instrument.
SECTION 4.11 Governing Law; Consent to Jurisdiction.
THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF
THE STATE OF DELAWARE, WITHOUT GIVING EFFECT TO THE PRINCIPLES OF CONFLICTS OF
LAWS THEREOF. EACH OF THE PARTIES HEREBY IRREVOCABLY AND UNCONDITIONALLY
CONSENTS TO SUBMIT TO THE EXCLUSIVE JURISDICTION OF THE COURTS OF THE UNITED
STATES OF AMERICA, LOCATED IN THE BOROUGH OF MANHATTAN, NEW YORK CITY, NY, OR IF
JURISDICTION IS NOT AVAILABLE IN FEDERAL COURT, ALTERNATIVELY, THE COURTS OF THE
STATE OF NEW YORK, LOCATED IN THE BOROUGH OF MANHATTAN, NEW YORK CITY, NY, FOR
ANY SUIT, ACTION OR OTHER PROCEEDING (ANY "PROCEEDINGS") ARISING OUT OF OR
RELATING TO THIS AGREEMENT AND THE TRANSACTIONS CONTEMPLATED HEREBY (AND AGREES
NOT TO COMMENCE ANY PROCEEDINGS RELATING HERETO OR THERETO EXCEPT IN SUCH
COURTS, EXCEPT AS OTHERWISE PROVIDED HEREIN). EACH OF THE PARTIES IRREVOCABLY
SUBMITS TO THE PERSONAL EXCLUSIVE JURISDICTION OF THE COURTS OF THE UNITED
STATES OF AMERICA OR THE COURTS OF THE STATE OF NEW YORK, AS APPLICABLE, IN EACH
CASE LOCATED IN THE BOROUGH OF MANHATTAN, NEW YORK CITY, NY, FOR THE PURPOSES OF
ANY PROCEEDINGS RELATING TO OR ARISING OUT OF THIS AGREEMENT OR ANY TRANSACTION
CONTEMPLATED HEREBY. EACH OF THE PARTIES HEREBY IRREVOCABLY AND UNCONDITIONALLY
WAIVES ANY OBJECTION TO THE LAYING OF VENUE OF ANY PROCEEDINGS RELATING TO OR
ARISING OUT OF THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY IN THE
COURTS OF THE UNITED STATES OF AMERICA OR THE COURTS OF THE STATE OF NEW YORK,
AS APPLICABLE, IN EACH CASE LOCATED IN THE BOROUGH OF MANHATTAN, NEW YORK CITY,
NY, HEREBY FURTHER IRREVOCABLY AND UNCONDITIONALLY WAIVES AND AGREES NOT TO
PLEAD OR CLAIM IN ANY SUCH COURT THAT ANY SUCH PROCEEDING BROUGHT IN ANY SUCH
COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM. EACH OF THE PARTIES FURTHER
AGREES THAT SERVICE OF ANY PROCESS, SUMMONS, NOTICE OR DOCUMENT (i) HAND
DELIVERED, (ii) SENT BY REGISTERED MAIL TO SUCH PARTY'S RESPECTIVE ADDRESS SET
FORTH IN SECTION 4.07 OF THIS AGREEMENT, OR TO SUCH OTHER ADDRESS AS SUCH PARTY
SHALL PROVIDE IN WRITING TO EACH OTHER PARTY TO THIS AGREEMENT PURSUANT TO THE
PROVISIONS HEREOF, DELIVERED TO ANY PERSON LOCATED AT SUCH ADDRESSES, OR (iii)
SOLELY IN THE CASE OF CARLYLE, TO CARLYLE'S OFFICE LOCATED IN MILAN, ITALY, SO
LONG AS CARLYLE HAS SUCH AN OFFICE LOCATION, DELIVERED TO ANY PERSON LOCATED AT
SUCH OFFICE, OR (iv) DELIVERED USING ANY OTHER METHOD OF SERVICE PERMITTED UNDER
THE FEDERAL RULES OF CIVIL PROCEDURE, OR THE NEW YORK RULES OF CIVIL PROCEDURE
RELATING TO THE SERVICE OF PROCESS OR SUMMONS, AS APPLICABLE, SHALL IN EACH SUCH
CASE BE EFFECTIVE SERVICE OF PROCESS FOR ANY PROCEEDING WITH RESPECT TO ANY
MATTERS RELATING TO OR ARISING UNDER THIS AGREEMENT OR ANY OF THE TRANSACTIONS
CONTEMPLATED HEREBY. EACH PARTY REPRESENTS AND WARRANTS TO THE OTHER PARTIES
THAT ANY PERSON LOCATED AT THE ADDRESS SENT FORTH IN SECTION 4.07 OF THIS
AGREEMENT OR AT ANY OTHER ADDRESS DESIGNATED BY SUCH PARTY PURSUANT TO SECTION
4.07, OR, SOLELY IN THE CASE OF CARLYLE, ANY PERSON LOCATED IN CARLYLE'S OFFICE
LOCATED IN MILAN, ITALY, BE AND HEREBY IS AUTHORIZED TO ACCEPT SERVICE OF
14
CUSIP No. 82655N105 13D Page 22 of 25 Pages
PROCESS, SUMMONS, NOTICE OR ANY OTHER DOCUMENT SENT BY REGISTERED MAIL OR
PERSONAL DELIVERY TO SUCH ADDRESS, OR BY ANY OTHER METHOD PERMITTED UNDER THE
FEDERAL RULES OF CIVIL PROCEDURE OR THE NEW YORK RULES OF CIVIL PROCEDURE
RELATING TO THE SERVICE OF PROCESS OR SUMMONS, AS APPLICABLE. NOTWITHSTANDING
ANYTHING IN THIS SECTION 4.11 TO THE CONTRARY, TABACCHI AND LA SESTA, ON ITS OWN
BEHALF AND ON BEHALF OF THEIR RESPECTIVE PERMITTED GRANTOR TRANSFEREES AND
SUCCESSORS AND PERMITTED ASSIGNS, ON THE ONE HAND, AND CARLYLE WITH RESPECT TO
EACH CARLYLE ENTITY ON THE OTHER HAND, HEREBY AGREES THAT AT ANY PREVAILING
PARTY'S OPTION IT MAY ENFORCE ANY JUDGMENT, AGAINST THEM OR ANY ONE OF THEM, IN
ANY U.S. FEDERAL, STATE OR LOCAL, OR FOREIGN JURISDICTION.
SECTION 4.12 Severability.
If any term, provision, covenant or restriction of this Agreement is held by a
court of competent jurisdiction to be invalid, void or unenforceable, the
remainder of the terms, provisions, covenants and restrictions of this Agreement
shall remain in full force and effect and shall in no way be affected, impaired
or invalidated. It is hereby stipulated and declared to be the intention of the
Parties that they would have executed the remaining terms, provisions, covenants
and restrictions without including any of such which may be hereafter declared
invalid, void or unenforceable.
SECTION 4.13 Mutual Drafting.
This Agreement is the mutual product of the Parties hereto, and each provision
hereof has been subject to the mutual consultation, negotiation and agreement of
each of the Parties, and shall not be construed for or against any Party hereto.
SECTION 4.14 Further Representations.
Each Party to this Agreement acknowledges and represents that it has been
represented by its own legal counsel in connection with the transactions
contemplated by this Agreement, with the opportunity to seek advice as to its
legal rights from such counsel, and is not relying on any representation or
statements made by any other Party hereto.
SECTION 4.15 Cooperation.
Each of the Parties hereby agrees that it will reasonably cooperate with each of
the other Parties to this Agreement in connection with the making of any
required governmental or regulatory notifications, filings or submissions under
U.S. federal and state and local securities laws relating to the consummation of
any of the transactions contemplated by this Agreement.
[SIGNATURES APPEAR ON NEXT PAGE]
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CUSIP No. 82655N105 13D Page 23 of 25 Pages
IN WITNESS WHEREOF, each Party hereto have caused this Agreement to be
duly executed by himself or itself or its authorized officer as of the day and
year first above written.
CARLYLE:
-------
CARLYLE VENTURE PARTNERS, L.P.
------------------------------
By: /S/ ROBERT GRADY
---------------------
Name: Robert Grady
Title: Managing Director
C/S VENTURE INVESTORS, L.P.
---------------------------
By: /S/ ROBERT GRADY
---------------------
Name: Robert Grady
Title: Managing Director
CARLYLE U.S. VENTURE PARTNERS, L.P.
-----------------------------------
By: /S/ ROBERT GRADY
---------------------
Name: Robert Grady
Title: Managing Director
CARLYLE VENTURE COINVESTMENT, L.L.C.
------------------------------------
By: /S/ ROBERT GRADY
---------------------
Name: Robert Grady
Title: Managing Director
LA SESTA, S.A.
--------------
By: /S/ MARCO BRUSTIO
---------------------
Name: Marco Brustio
Title: Chairman
/S/ E. DINO TABACCHI
-------------------------
Dino Tabacchi
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CUSIP No. 82655N105 13D Page 24 of 25 Pages
EXHIBIT 4
POWER OF ATTORNEY
The undersigned hereby constitutes and appoints Carene Kunkler
and Duane Kimble Jr., and each of them individually, as the undersigned's true
and lawful attorney-in-fact to:
1. Execute for and on behalf of the undersigned, in
the undersigned's capacity as an officer and/or director of
Sight Resource Corporation (the "Company"), Forms 3, 4 and 5 in
accordance with Section 16(a) of the Securities Exchange Act of
1934 (the "Act") and the rules thereunder.
2. Execute for and on behalf of the undersigned, in
the undersigned's capacity as a shareholder of the Company
and/or in the undersigned's capacity as an executive officer or
controlling shareholder of any corporation or entity that is a
shareholder of the Company, Schedules 13D and 13G, and any
amendments thereto or agreements relating to "group" filings
thereof, in accordance with Sections 13(d) and 13(g) of the Act
and the rules thereunder.
3. Do and perform any and all acts for and on behalf
of the undersigned which may be necessary or desirable to
complete and execute any such Form 3, 4 or 5, or Schedule 13D
or 13G (including without limitation executing Form ID and
obtaining CIK, CCC and other codes and passwords), and timely
file such Forms and Schedules with the Securities and Exchange
Commission and any stock exchange or similar authority.
The undersigned hereby grants to each such attorney-in-fact
full power and authority to do and perform any and every act and thing
whatsoever requisite, necessary or proper to be done in the exercise of any of
the rights and powers herein granted, as fully to all intents and purposes as
the undersigned might or could do if personally present, hereby ratifying and
confirming all that such attorney-in-fact shall lawfully do or cause to be done
by virtue of this power of attorney and the rights and powers herein granted.
The undersigned acknowledges that the foregoing attorneys-in-fact, in serving in
such capacity at the request of the undersigned, are not assuming, nor is the
Company assuming, any of the undersigned's responsibilities to comply with
Section 13 or 16 of the Act.
This Power of Attorney shall remain in full force and effect
until the undersigned (and any such entity for which the undersigned is an
executive officer or controlling shareholder) is no longer required to file
Forms 3, 4 and 5, and Schedules 13D or 13G, with respect to the undersigned's
(or such entity's) holdings of and transactions in securities issued by the
Company, unless earlier revoked by the undersigned in a signed writing delivered
to the foregoing attorneys-in-fact.
CUSIP No. 82655N105 13D Page 25 of 25 Pages
IN TESTIMONY WHEREOF, the undersigned has caused this Power of
Attorney to be executed this 9th day of January, 2003.
LA SESTA S.A.
By /s/ Marco Brustio
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