ASSIGNMENT AND ASSUMPTION
AGREEMENT
THIS ASSIGNMENT AND ASSUMPTION
AGREEMENT is made this
28 th
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
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