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. (a) 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.
(b) Assignee hereby agrees that to the extent Assignee exchanges all, but
not less than all, of its shares of Xxxxxx Xxxxx Holdings, Inc. Series A
Preferred Stock (the "FGH Preferred Stock") for shares of common stock ("AAi
Common Stock") of Accessories Associates, Inc. ("AAi"), Assignee shall
deliver to Assignor 35.71% (such portion of the shares of AAi Common Stock is
hereinafter referred to as the "Assignor Shares") of all of such exchanged
shares of AAi Common Stock received by Assignee together with any rights
attaching thereto (including, but not limited to, the registration rights
referred to in the Exchange and Registration Rights Agreement dated as of
December 11, 1996 and made between AAi and Assignor). However, in the event
that Assignee does not obtain the Assignor Shares, Assignee hereby agrees to
pay to Assignor the first $2.5 million received by Assignee from proceeds
(the "Proceeds") relating to (i) the sale by Assignee of the FGH Preferred
Stock or (ii) the redemption by Xxxxxx Xxxxx Holdings, Inc. of the FGH
Preferred Stock. In the event that Assignor does not receive either the
Assignor Shares or $2.5 million from Assignee, as described above, on or
before the date that is five years after the effective date of Assignor's
merger with ILC Technologies, Inc., Assignee shall promptly pay to Assignor,
an amount equal to $2.5 million less any amount previously paid to Assignor
by Assignee from the Proceeds.
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
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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 a of the date first above written.
ASSIGNOR
BEC GROUP, INC.
By:
--------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Chairman and Chief
Executive Officer
ASSIGNEE:
BOLLE INC.
By:
--------------------------------
Name: Xxxx Xxxxxxxxx
Title:
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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 5/3/96.
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.
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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 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.
VII. Share Certificate No. OC72 and EC73, representing (respectively)
1,174 shares of Optical Acquisition Corp. stock and 1,174 shares of
Eyecare Acquisition Corp. stock.
VIII. Share Certificate No. 1, representing 1,000 shares of common stock
of ORC Management Corporation.
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