XXXX OF SALE AND ASSIGNMENT AGREEMENT
THIS XXXX OF SALE AND ASSIGNMENT AND ASSUMPTION AGREEMENT,
dated as of March 11, 1998, 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 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.
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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: /s/ Xxxxxx X. Xxxxxxxx
____________________________________
Name: Xxxxxx X. Xxxxxxxx
Title: Chairman and Chief Executive Officer
ASSIGNEE:
BOLLE INC.
By: /s/ Xxxx Xxxxxxxxx
____________________________________
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.
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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.
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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).
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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. (the "Eyecare Shares"). All interests, rights,
duties and obligations of BEC to Xxxxxx Eyewear Corporation under the
Stock Purchase Agreement, dated November 14, 1996, by and among BEC
and Xxxxxx Eyewear Corporation (as amended), relating to the Eyecare
Shares.
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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