EXHIBIT 10.14.1
12/28/02
AMENDMENT TO RIGHTS AGREEMENT
This Amendment is entered into as of December 30, 2002 by and between SIGHT
RESOURCE CORPORATION, a Delaware corporation (the "Company"), and AMERICAN STOCK
TRANSFER & TRUST COMPANY (the "Rights Agent").
WHEREAS the Company and the Rights Agent have entered into that certain
Rights Agreement, dated as of May 15, 1997 (the "Rights Agreement");
WHEREAS, the Board of Directors of the Company has authorized and directed
the Company to execute and deliver this Amendment to the Rights Agreement; and
WHEREAS, the Company and the Rights Agent are authorized to execute and
deliver this Amendment pursuant to the provisions of Section 27 of the Rights
Agreement.
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereby agree as follows:
Section 1. Amendment to Rights Agreement. The definition of "Acquiring
Person" as set forth in Section 1 of the Rights Agreement is amended by deleting
the first two sentences thereof and substituting in lieu thereof the following:
"Acquiring Person" shall mean any Person who or which, together with all
Affiliates and Associates of such Person, shall be the Beneficial Owner of
15% or more of the Common Shares of the Company then outstanding, but shall
not include (i) the Company, (ii) any Subsidiary of the Company, (iii) any
employee benefit plan of the Company or any Subsidiary of the Company, or
(iv) any entity holding Common Shares for or pursuant to the terms of any
such employee benefit plan. Notwithstanding the foregoing, (1) no person
shall become an "Acquiring Person" as the result of an acquisition of
Common Shares by the Company which, by reducing the number of shares
outstanding, increases the proportionate number of shares beneficially
owned by such Person to 15% or more of the Common Shares of the Company
then outstanding, provided, however, that if a Person shall so become the
Beneficial Owner of 15% or more of the Common Shares of the Company then
outstanding by reason of an acquisition of Common Shares by the Company and
shall, after such share purchases by the Company, become the Beneficial
Owner of an additional 1% of the outstanding Common Shares of the Company,
then such Person shall be deemed to be an "Acquiring Person"; (2) if the
Board of Directors of the Company determines in good faith that a Person
who would otherwise be an "Acquiring Person," as defined pursuant to the
foregoing provisions of this paragraph, has become such inadvertently, and
such Person divests as promptly as practicable a sufficient number of
Common Shares so that such Person would no longer be an "Acquiring Person,"
as defined pursuant to the foregoing provisions of this paragraph, then
such Person shall not be deemed to have become an "Acquiring Person" for
any purposes of this Agreement; (3) none of Carlyle Venture Partners, L.P.,
Carlyle U.S. Venture Partners, L.P., C/S Venture
Investors, L.P., Carlyle Venture Coinvestment, LLC ("The Carlyle Group")
nor any of their Affiliates shall be deemed to have become an "Acquiring
Person" for any purposes of this Agreement solely as the result of the
consummation of the transactions contemplated by Series B Convertible
Preferred Stock Purchase Agreement dated as of October 9, 1997 (the
"Purchase Agreement"), including, without limitation, the purchase of
shares of the Series B Convertible Preferred Stock, par value $.01 per
share, of the Company (the "Series B Preferred Stock") and the issuance of
Common Shares upon the conversion of the Series B Preferred Stock and upon
the exercise of the warrants issued pursuant to the Purchase Agreement,
provided, however, that the foregoing exception shall not apply if The
Carlyle Group or any of its Affiliates becomes the Beneficial Owner of 15%
or more of the Common Shares of the Company then outstanding in any manner
other than as contemplated by the Purchase Agreement or approved in advance
by the Board of Directors of the Company; (4) no Purchaser (as that term is
defined in the Common Stock Purchase Agreement by and among the Company,
xxxxxxx.xxx, Inc., a Delaware corporation ("Xxxxxxx.xxx") and certain
purchasers of Company common stock, dated as of May 23, 2001 (the "Stock
Purchase Agreement")) listed on Exhibit A to the Stock Purchase Agreement
shall be deemed to have become an "Acquiring Person" for any purposes of
this Agreement solely as the result of the consummation of the transactions
contemplated by the Purchase Agreement and the Agreement and Plan of
Merger, by and among the Company, Xxxxxxx.xxx and Eyeshop Acquisition
Corporation, a Delaware corporation, dated May 23, 2001 (the "Merger
Agreement"), including, without limitation, the purchase of Common Shares;
(5) no shareholder of Xxxxxxx.xxx who receives shares of Common Shares as a
result of the consummation of the transactions contemplated by Stock
Purchase Agreement and the Merger Agreement shall be deemed to have become
an "Acquiring Person" for any purposes of this Agreement; (6) no Person
who, pursuant to a Common Stock Purchase Agreement between the Company and
such person entered into between April 2, 2001 and September 30, 2001,
purchases Common Shares for up to, but not exceeding, $2,500,000 shall be
deemed to have become an "Acquiring Person" for any purposes of this
Agreement; (7) no Person who, pursuant to a Common Stock Purchase Agreement
between the Company and such Person entered into between December 30, 2002
and January 31, 2003, purchases Common Shares for up to, but not exceeding,
$3,000,000 shall thereby be deemed to have become an "Acquiring Person" for
any purposes of this Agreement; (8) neither The Carlyle Group nor any of
its Affiliates shall be deemed to have become an "Acquiring Person" for any
purposes of this Agreement upon the issuance of Common Shares (i) in
payment of dividends owing on the Series B Preferred Stock, or (ii) upon
conversion of the Series B Preferred Stock into Common Shares; and (9) no
Person who, pursuant to a certain Put and Right of First Refusal Agreement
to be executed between December 30, 2002 and January 31, 2003 among certain
stockholders (or their affiliates) of the Company, purchases Common Shares
shall thereby be deemed to have become an Acquiring Person for any purposes
of this Agreement. Common Shares acquired by any Person or group of Persons
pursuant to the transactions described in clauses (3) through (9) shall,
for purposes of determining whether any Person or group of Persons is an
Acquiring
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Person, be excluded in the determination of the number of Common Shares of
which such Person or group is the Beneficial Owner.
Section 2. Rights Agent. In accordance with the provisions of Section 27 of
the Rights Agreement, upon the delivery of a certificate from an appropriate
officer of the Company that states that this Amendment is in compliance with the
terms of Section 27 of the Rights Agreement, the Rights Agent shall execute this
Amendment, shall be under no obligation to investigate such compliance, and
shall be fully protected hereunder and thereunder by so doing.
Section 3. Effect of Amendment. The parties hereby ratify and confirm all
of the provisions of the Rights Agreement, as amended hereby, and agree and
acknowledge that the Rights Agreement as so amended remains in full force and
effect.
Section 4. Governing Law. This Amendment shall be deemed to be a contract
made under the laws of the State of Delaware and for all purposes shall be
governed by and construed in accordance with the laws of such State applicable
to contracts to be made and performed entirely within such State.
Section 5. Counterparts. This Amendment may be executed in any number of
counter parts and each of such counterparts shall for all purposes be deemed to
be an original, and all such counterparts shall together constitute but one and
the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed and attested, all as of the day and year first above written.
Attest: SIGHT RESOURCE COPRORATION
By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxx Xxxxxxx
------------------------------- ------------------------------------
Title: Executive Assistant Title: President
Attest: AMERICAN STOCK TRANSFER & TRUST COMPANY
By: /s/ Xxxxx Xxxxxx By: /s/ Xxxxxxx X. Xxxxxx
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Title: Assistant Secretary Title: Vice President
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