XXXX OF SALE AND ASSIGNMENT AGREEMENT
THIS XXXX OF SALE AND ASSIGNMENT AND ASSUMPTION AGREEMENT,
dated as of October 1, 1997, is made in consideration of Ten Dollars ($10.00)
and other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, between BEC GROUP, INC., a Delaware corporation
("Assignor") and BOLLE INC., a Delaware corporation ("Assignee").
1. Assignor hereby grants, conveys, sells, assigns, transfers and
delivers to Assignee, its successors and assigns, and Assignee hereby purchases
and accepts from Assignor, all of Assignor's right, title and interest in all
assets and liabilities of Assignor, other than (i) the assets and liabilities
of or relating to Assignor's ORC Business (as defined below) and (ii) the items
listed in Schedule A hereto. All such assets and liabilities conveyed hereby
are referred to hereinafter as the "Acquired Assets". The Acquired Assets
include (without limitation) the items listed in Schedule B attached hereto.
For purposes of this Agreement, the ORC Business shall mean (i) all shares of
capital stock of Assignor's following subsidiaries and/or affiliates: ORC
Technologies, Inc., ORC Caribe, Optical Radiation Foreign Sales Corporation,
and Voltarc Technologies, Inc. held by Assignor or by any of such entities and
the business, assets and liabilities of or directly related to such entities;
and (ii) all assets and liabilities included in Assignor's pro forma balance
sheet attached hereto as Exhibit I; provided, that notwithstanding anything
contained in this Paragraph 1 to the contrary, Assignor retains all right,
title and interest in and to the items identified in Schedule A hereto, but the
parties mutually acknowledge and agree that such items identified in Schedule A
do not constitute part of the ORC Business.
2. Title to the Acquired Assets shall pass to Assignee upon the date
of this Assignment Agreement.
3. Assignee assumes, and agrees to pay when and as due and to
discharge, all debts, liabilities, obligations, taxes, liens and encumbrances
of any kind, character or description, whether accrued, absolute, contingent or
otherwise (and whether or not reflected or reserved against in the balance
sheets, books of account and records of Assignor) in respect of (a) the
Acquired Assets and/or (b) the items identified in Schedule A hereto.
4. Assignee hereby further agrees to execute and deliver an
indemnification agreement, in form satisfactory to Assignor, pursuant to which
Assignee shall indemnify and hold Assignor harmless from and against any and
all loss, damage or expense (a) related to or arising from or in connection
with the Acquired Assets and/or (b) otherwise not related to or arising from or
in connection with the ORC Business (including, without limitation, related to
or arising in connection with the items identified in Schedule A hereto).
5. Assignor hereby constitutes and appoints Assignee its true and
lawful attorney, with full power of substitution, in the name of Assignee or in
the name of Assignor, but on behalf of and for the sole benefit of Assignee, to
institute and prosecute all proceedings which Assignee may deem proper in order
to receive, collect, assert or enforce any claim, right or title of any kind in
or to the Acquired Assets, to defend and compromise any and all such action and
execute instruments in relation thereto as Assignee shall deem advisable.
Without limiting the foregoing, Assignor hereby authorizes Assignee and its
officers to endorse or assign any instrument, contract or chattel paper
relating to the Acquired Assets.
6. Assignor further agrees that it will at any time and from time to
time, at the request of Assignee, execute and deliver to Assignee all other and
further instruments necessary to vest in Assignee full title, right and
interest in or to any of the property, assets or rights which this instrument
purports to transfer to Assignee.
7. All of the terms and provisions of this Assignment will be binding
upon Assignor and its respective successors and assigns and will inure to the
benefit of Assignee and its respective successors and assigns.
8. This Xxxx of Sale and Assignment Agreement shall be governed by,
and construed and enforced in accordance with, the laws of the State of New
York.
IN WITNESS WHEREOF, the parties hereto have executed and delivered
this Xxxx of Sale and Assignment Agreement as of the date first above written.
ASSIGNOR
BEC GROUP, INC.
By:
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Name: Xxxxxx X. Xxxxxxxx
Title: Chairman and Chief Executive
Officer
ASSIGNEE:
BOLLE INC.
By:
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Name: Xxxx Xxxxxxxxx
Title:
2
SCHEDULE A
RIGHTS, INTEREST, ETC. RETAINED BY BEC
IN CONNECTION WITH WHICH BOLLE
WILL ASSUME LIABILITY AND INDEMNIFY BEC
I. Rights and obligations under various arrangements with HMG World-Wide
Corporation (and its subsidiary Intermark Corp.), including (without
limitation):
A. Stock Purchase Agreement, dated as of September 30, 1995, by and
between BEC Group, Inc. as assignee of Xxxxxx Eyecare Corporation
("Xxxxxx") and Intermark Corp.
B. Assignment and Assumption Agreement, dated September 30, 1995.
C. Guaranty, dated September 30, 1995, by Xxxxxx in favor of HMG
Worldwide In-Store Marketing Corporation.
II. Certain agreements relating to arrangements among Xxxxx Fargo Bank
(Texas), National Association, as successors to First Interstate Bank
of Texas, N.A., and BEC, as successor to Xxxxxx Xxxxx Group, L.P.:
A. Guaranty Agreement by BEC, dated March 31, 1995, in favor of First
Interstate Bank (as amended).
B. Indemnity Agreement, dated March 31, 1994 [sic], from Xxxxxx Xxxxx
Group, L.P. et al in favor of First Interstate Bank, N.A. (as
amended).
III. Any remaining Xxxxxx or BEC obligations and rights relating to:
A. The Agreement and Plan of Merger among Xxxxxx Eyecare Corporation,
BEC Acquisition Corp. and Bolle America, Inc., dated as of July
26, 1995.
B. The Asset Purchase Agreement by and among Xxxxxx Eyecare
Corporation, BEC Group, Inc. and Optical Radiation Corporation and
Monsanto Company, dated May 3, 1996.
C. The merger of Essilor Acquisition Corporation into Xxxxxx Eyecare
Corporation, effective on May 3, 1996.
IV. Pending Litigation:
A. Xxxx Xxxxxx & Partners, Ltd. v. Opti-Ray, Inc. and Xxxxxx Eyecare
Corporation.
B. Xxxxxx X. Xxxxxxxx v. Omega Optical Co., L.P., Omega Group
Limited, and Xxxxxx Eyecare Corporation.
C. Magnivision, Inc. v. The Xxxxxxx Company.
D. Xxxx Xxxx, Trustee, v. Essomega Corporation, f/k/a Xxxxxx Eyecare
Corporation, and BEC Group, Inc.
V. Stock Purchase and Option Agreement, dated November 14, 1996, by and
among BEC and Xxxxxx Eyewear Corporation (as amended), relating to
shares transferred to Assignee by this Assignment. Assignor and
Assignee, by execution and delivery of this Assignment, mutually
acknowledge and agree that Assignee will promptly deliver such shares
at Assignor's direction upon any execution of such option and that
Assignor will promptly transfer to Assignee all consideration
received in connection with any such exercise.
SCHEDULE B
LIST OF ASSETS/LIABILITIES
ASSIGNED TO/ASSUMED BY
BOLLE INC.
I. All interests, rights, duties and obligations of BEC Group, Inc.
("BEC") relating to Accessories Associates, Inc. ("AAi"), including
(without limitation):
A. Stock Purchase Agreement, dated as of November 13, 1996, by and
among BEC, AAi, et al.
B. Exchange and Registration Rights Agreement, dated December 11,
1996, by and among AAi, Xxxxxx Xxxxx Holdings, Inc. ("FGH"), BEC,
et al.
C. Certificate No. P-1, representing 100 shares of FGH Series A
Preferred Stock.
II. All interests, rights, duties and obligations in and related to
Superior Vision Services, Inc.:
A. Loan Agreement, dated September 30, 1994 (as subsequently amended).
B. Revolving Credit Promissory Note, dated September 30, 1994, for
maximum principal amount of $1,000,000 (as amended) and any note
issued in replacement or substitution therefor.
C. Share Certificate No. 5, representing 8,800 shares of common stock.
D. Share Certificate No. 1, representing 17,825 shares of Series A
Preferred Stock.
E. Share Certificate No. 3, representing 41, 782 shares of Series B
Preferred Stock.
F. BEC's rights and obligations pursuant to ancillary documents, such
as the Shareholder Agreement (as subsequently amended).
III. Certain Assets, Rights and Obligations Relating to Sterling Vision,
Inc.
A. Covenant not to compete and guarantee of Pembridge Optical
Partners, Inc. obligations pursuant to Asset Purchase Agreement,
dated August 26, 1994, by and between Pembridge Optical Partners,
Inc. and Sterling Vision, Inc.
B. Note Amendment and Conversion Agreement, dated April 21, 1997, and
all rights and obligations in connection therewith.
IV. Management Agreement between BEC and Eyecare Products, plc.
V. All BEC's rights, title and interest in and to shares of stock of
Eyecare Products, plc. subject to the agreement described in Schedule
B.V. hereto.
VI. All right and interest in and to rental payments receivable by BEC (as
assignor) pursuant to:
A. Industrial Lease by and between Xxxxxxx Optical Sales, Inc. and ORC
Technologies, Inc. (f/k/a/ Optical Radiation Corporation) dated as
of December 8, 1995; and
B. Lease Agreement, dated as of May 3, 1996, by and between Monsanto
Company and ORC Technologies, Inc. (f/k/a Optical Radiation
Corporation).
In each case, subject to all of the remaining terms and conditions of each
such lease and the rights of assignor's senior lenders with respect thereto.
