ASSIGNMENT AND ASSUMPTION AGREEMENT
Exhibit 10.2
THIS ASSIGNMENT AND ASSUMPTION
AGREEMENT is made this 28th day of
July, 2008 by and between IMPLANTABLE VISION, INC., a Utah corporation
(hereinafter referred to as “ASSIGNOR”), and BT
ACQUISITIONS, INC., a Colorado corporation (hereinafter referred to as “ASSIGNEE”).
W I T N E S S E T H
A. ASSIGNOR
owns all of the issued and outstanding shares of the capital stock of ASSIGNEE,
and it wishes, in connection with the sale of such shares of ASSIGNEE to certain
directors and executive officers of ASSIGNOR, and their affiliates
(collectively, the “Buyer Group”), to
assign certain of its rights and liabilities to ASSIGNEE.
NOW, THEREFORE, IN CONSIDERATION
of the mutual promises contained herein and in the Stock Purchase
Agreement between ASSIGNOR and the Buyer Group, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged by
the parties, ASSIGNOR and ASSIGNEE hereby agree as follows:
1.1 ASSIGNMENT. ASSIGNOR
hereby bargains, sells, grants, assigns, transfers, conveys and delivers unto
ASSIGNEE, its successors and assigns all of ASSIGNOR’S right, title and interest
in and to all of the assets related to or useful in connection with ASSIGNOR’S
implantable lens business, including, without limitation, those assets listed on
Schedule A
attached hereto (collectively, the “Assigned Assets”), to
the extent, with respect to contracts included in the Assigned Assets, that such
contracts are assignable for all the rest of the respective terms thereof (and
any renewals, extensions and other options therein contained), subject to the
covenants, conditions and provisions therein contained and provided that such
assignment shall only be effective upon receipt of any third party consent
required by any such contract.
1.2 FURTHER ACTS. From
time to time after the date hereof, without further consideration, ASSIGNOR
shall execute and deliver such other instruments of assignment, transfer and
conveyance and shall take such other action as ASSIGNEE may reasonably request
to more effectively assign, transfer and convey to ASSIGNEE, all of ASSIGNOR's
right, title and interest in and to any of the Assigned Assets being assigned,
transferred and conveyed to it hereunder, or to enable it to exercise and enjoy
all rights and benefits of ASSIGNOR with respect thereto.
1.3 OBLIGATIONS ASSUMED BY
ASSIGNEE. ASSIGNEE hereby assumes and
agrees to perform, pay, honor and discharge when due all of the disclosed and
undisclosed liabilities of ASSIGNOR related to or useful in connection with
ASSIGNOR’S implantable lens business incurred up to and including July 10, 2008,
including, without limitation, those liabilities listed on Schedule B attached
hereto (collectively, the “Assumed
Liabilities”); provided that such assumption shall not apply to any
contract that is an Assigned Asset that requires third party consent until such
consent has been obtained.
1.4 ASSIGNOR'S
RIGHTS. ASSIGNOR hereby irrevocably constitutes and appoints
ASSIGNEE (and each of ASSIGNEE’S successors and permitted assigns) its true and
lawful attorney-in-fact and agent, with full power of substitution, in its name
or otherwise, to pay, discharge, adjust, settle or compromise any Assumed
Liability, to prosecute or defend any action or claim in connection therewith,
and, if applicable, to submit to arbitration any controversy relating
thereto.
1.5 THIRD PARTY CONSENTS. If any assignment or
attempted assignment of any contract that is an Assigned Asset without the
consent or approval of a third party would constitute a breach thereof, and if
such consent is not obtained, ASSIGNOR will cooperate with ASSIGNEE in any
arrangement reasonably designed to provide for ASSIGNEE the benefits under any
such contract, including enforcement for the benefit of ASSIGNEE of any and all
rights of ASSIGNOR against a third party thereto arising out of the breach or
cancellation by such third party or otherwise; provided that ASSIGNEE shall bear
the expense of enforcing any and all of the Assigned Assets.
1.6 SUCCESSORS AND
ASSIGNS. This Agreement shall inure to the benefit of and be
binding upon ASSIGNOR and ASSIGNEE and their respective successors and
assigns.
1.7 ENTIRE AGREEMENT; THIRD-PARTY
BENEFICIARIES. This Agreement
and the other agreements referred to herein constitute the entire agreement, and
supersede all prior agreements and understandings, both written and oral, among
the parties with respect to the subject matter of this
Agreement. This Agreement is for the sole benefit of the parties
hereto and their respective successors and permitted assigns and nothing in this
Agreement, express or implied, is intended or shall be construed to confer upon
any person other than the parties hereto and their respective successors and
permitted assigns any legal or equitable rights, remedies or
claims.
1.8 HEADINGS. The
headings contained in this Agreement are for purposes of convenience only and
shall not affect the meaning or interpretation of this Agreement.
1.9 COUNTERPARTS. This
Agreement may be executed in one or more counterparts, all of which shall be
considered one and the same agreement and shall become effective when one or
more counterparts have been signed by each party and delivered to the other
party.
1.10 GOVERNING LAW. This
Agreement shall be governed by, and construed in accordance with, the laws of
the State of New York, regardless of the laws that might otherwise govern under
applicable principles of conflicts of laws thereof.
1.11 AMENDMENT. The
parties may amend this Agreement only by a written agreement signed by each
party to be bound by the amendment and that identifies itself as an amendment to
this Agreement.
[remainder
of page intentionally left blank; signature page follows]
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IN WITNESS WHEREOF, and
intending to be legally bound hereby, each of ASSIGNOR and ASSIGNEE has caused
this Agreement to be executed and delivered by its duly authorized
representative as of the day and year first above written.
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ASSIGNOR
By: /s/ Xxxxx
Xxxxxxx
Name:
Xxxxx Xxxxxxx
Title:
President and Chief Financial Officer
ASSIGNEE
BT
ACQUISITIONS, INC.
By:
/s/ Xxxxxx
Xxxxxxx
Name: Xxxxxx
Xxxxxxx
Title: President
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SCHEDULE
A
Assigned
Assets
Asset
Purchase Agreement dated as of June 19, 2006 between Implantable Vision, Inc.
and CIBA Vision, AG, including any and all intellectual property acquired
pursuant to such agreement (including, without limitation, such intellectual
property more specifically set forth in that certain Assignment of Patent and
that certain Assignment of Trademark, each of even date herewith, between
Implantable Vision, Inc. and BT Acquisitions, Inc.)
Employment
Agreement between Implantable Vision, Inc. and Igor Valyunin dated November 15,
2005.
Employment
Agreement between Implantable Vision, Inc. and Xxxxxxxxx Xxxxxx dated December
21, 2005.
All funds
contained in the checking/savings accounts of Implantable Vision, Inc.
maintained at any and all financial institutions, including, without limitation,
funds in the aggregate amount of $2,560.17 contained in checking/savings
accounts maintained at Signature Bank.
Retainers
in the amount of $2,000.00.
Accumulated
depreciation in the amount of $53,160.00.
Any and
all equipment used or useful in connection with the implantable lens business,
including, without limitation, the Functional Vision Analyzer and the High
Frequency Ultrasound.
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SCHEDULE
B
Assumed
Liabilities
Any and
all liabilities of Implantable Vision, Inc. relating to that certain Asset
Purchase Agreement dated as of June 19, 2006 between Implantable Vision, Inc.
and CIBA Vision, AG, including any and all liabilities related to the
intellectual property acquired pursuant to such agreement.
Any and
all liabilities of Implantable Vision, Inc. relating to that certain Employment
Agreement between Implantable Vision, Inc. and Igor Valyunin dated November 15,
2005.
Any and
all liabilities of Implantable Vision, Inc. relating to that certain Employment
Agreement between Implantable Vision, Inc. and Xxxxxxxxx Xxxxxx dated December
21, 2005.
Accrued
salaries and accounts payable in the aggregate amount of $1,541,441.57, as more
specifically set forth below in this Schedule
B.
Outstanding
credit card payments to American Express in the aggregate amount of
$42,335.24.
Accrued
interest payable in the amount of $21,700.60.
Advances
payable to related parties in the amount of $16,387.08.
Outstanding
equipment loans relating to the Sonomed HFU in the amount of
$26,105.00.
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Implantable
Vision, Inc.
VENDOR BALANCE
SUMMARY
All
Transactions
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July
9, 2008
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|||||
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Accrued
Salaries
|
|||||
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Xxxxxxxxx
Xxxxxx (Personal)
|
146,499.94 | ||||
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Xxxxxxxxx
Xxxxxx, MD
|
2,326.26 | ||||
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Xxxxx,
Xxxxx
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250,000.00 | ||||
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Kavouria,
LLC
|
148,922.93 | ||||
|
Xxxxxxx,
Xxxxxx
|
224,918.80 | ||||
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Valyunin,
Igor (Personal)
|
132,945.44 | ||||
|
Sharma,
X. Xxxxx
|
165,000.00 | ||||
| 1,070,613.37 | |||||
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Accounts
Payable
|
|||||
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BP
Enterprises, Inc
|
1,700.00 | ||||
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Corporate
Development Partners
|
6,375.00 | ||||
|
Depository
Trust Company
|
1,950.00 | ||||
|
Fulbright
& Xxxxxxxx
|
62,492.20 | ||||
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XXXXXXX
& XXXX
|
86,230.33 | ||||
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Xxxxxxx
Xxxxxxx & Xxxxxx PLLC
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4,933.75 | ||||
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Xxxxx,
Xxxxxx & XxXxxxxx
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8,328.10 | ||||
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Jaspers
& Hall
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23,900.00 | ||||
|
Xxxx
XxxXxxxxx
|
38,171.57 | ||||
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Kara
& Associates
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10,000.00 | ||||
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Xxxxxxx
X. Xxxxxxx - Attorney at Law
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2,345.00 | ||||
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Ophthalmic
Technologies Inc.
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16,470.00 | ||||
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Promedica
International
|
3,500.00 | ||||
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Xxxxx
Xxxxxxx Xxxxxxx & Xxxxx LLP
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151,000.00 | ||||
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Stereo
Optical Company Inc.
|
36,450.00 | ||||
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Stonegate
Securities
|
580.00 | ||||
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Xxxxxxxxx
& Xxxxxxxx
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16,402.25 | ||||
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Sub
Total
|
470,828.20 | ||||
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TOTAL
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1,541,441.57 | ||||
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