ASSIGNMENT AND ASSUMPTION AGREEMENT
ASSIGNMENT AND ASSUMPTION AGREEMENT, dated as of
February 17, 2000 (this "Agreement"), by and among ▇▇▇▇▇▇▇ Corporation, a
Delaware corporation (the "Company"), Torque Acquisition Co., L.L.C., a
Delaware limited liability company and a wholly owned subsidiary of Vestar
Capital Partners IV, L.P. ("Acquisition Company"), and Torque Merger Sub,
Inc., a Delaware corporation and a wholly owned subsidiary of Acquisition
Company ("Merger Subsidiary").
W I T N E S S E T H:
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WHEREAS, Acquisition Company, Merger Subsidiary and the
Company, have entered into an Agreement and Plan of Merger, dated as of
Decem ber 8, 1999, as amended by Amendment No. 1 thereto, dated as of
February 3, 2000 (the "Merger Agreement");
WHEREAS, Acquisition Company, Merger Subsidiary and
certain subsidiaries of the Company have entered into a revised commitment
letter (the "Revised Bank Commitment Letter") with Bankers Trust Company
(the "Bank") pursuant to which the Bank has committed, subject to certain
conditions, to provide the debt financing for the Offer and the Merger;
WHEREAS, pursuant to the Merger Agreement and the Offer
Documents, in the event that more than 4,862,749 Shares but less than
6,135,061 Shares are validly tendered and not withdrawn pursuant to the
Offer, Acquisition Company shall pay for and purchase the first 4,862,749
Shares tendered pursuant to the Offer and the Company shall pay for and
purchase all Shares tendered in excess of the 4,862,749 Shares paid for and
purchased by Acquisition Company;
WHEREAS, in accordance with the Merger Agreement and the
Revised Commitment Letter, Acquisition Company hereby desires to assign to
Merger Subsidiary its right under the Merger Agreement and the Offer
Documents to purchase Shares in the event that more than 4,862,749 Shares
but less than 6,135,061 Shares are tendered in the Offer, and Merger
Subsidiary hereby desires to assume such purchase obligations;
WHEREAS, the Company has consented in the Merger
Agreement to such assignment by Acquisition Company and assumption by
Merger Subsidiary; and
WHEREAS, capitalized terms used herein but not otherwise
defined herein shall have the meanings ascribed to them in the Merger
Agreement.
NOW, THEREFORE, in consideration of the foregoing
premises and the mutual obligations, covenants, agreements and conditions
contained herein, and intending to be legally bound hereby, the parties
hereto agree as follows:
1. Assignment and Assumption. In accordance with Section
1.1(c) of the Merger Agreement, Acquisition Company hereby assigns to
Merger Subsidiary, and Merger Subsidiary hereby assumes, all of Acquisition
Company's rights and obligations to purchase all Shares it is obligated to
purchase pursuant to the Offer, as permitted and required under the Offer
Documents, in the event that more than 4,862,749 Shares but less than
6,135,061 Shares are validly tendered and not withdrawn pursuant to the
Offer.
2. Continuing Liability of Acquisition Company.
Notwithstanding Section 1 hereof, no assignment by Acquisition Company
hereunder shall relieve Acquisition Company of its obligations under the
Merger Agreement and the Offer Documents in the event that Merger
Subsidiary, as assignee, does not perform such obligations.
3. Third Party Beneficiary. The provisions of this
Agreement are intended for the benefit of, and to be enforceable by, the
Company.
4. Notices. All notices and other communications
hereunder shall be in writing and shall be deemed given if delivered
personally, telecopied (which is confirmed) or sent by an overnight courier
service, such as Federal Express, to the parties at the following addresses
(or at such other address for a party as shall be specified by like
notice):
(a) if to Acquisition Company or Merger Subsidiary, to:
c/o Vestar Capital Partners IV, L.P.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Sander ▇. ▇▇▇▇
with a copy to:
Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇, Esq.
(b) if to the Company, to:
▇▇▇▇▇▇▇ Corporation
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇.▇. ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Secretary
with a copy to:
Stroock & Stroock & ▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Esq.
5. Amendment. This Agreement may be amended,
modified, or supplemented only by an instrument in writing signed on behalf
of each of the parties hereto.
6. 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 of the parties hereto and delivered to the other
parties hereto.
7. Governing Law. This Agreement shall be governed
by and construed in accordance with the laws of Delaware, without giving
effect to principles of conflict of laws thereof.
8. Assignment. Except as set forth in this Agreement,
neither this Agreement nor any of the rights, interests or obligations
hereunder shall be assigned by any of the parties hereto (whether by
operation of law or otherwise) without the prior written consent of the
other parties hereto. Subject to the preceding sentence, this Agreement
shall be binding upon, inure to the benefit of and be enforceable by the
parties hereto and their respective permitted successors and assigns.
9. Headings. Headings of the articles and sections
of this Agreement are for convenience of the parties hereto only and shall
be given no substantive or interpretative effect whatsoever.
10. Specific Performance. Each of the parties hereto
acknowledges and agrees that in the event of any breach of this Agreement,
each non- breaching party would be irreparably and immediately harmed and
could not be made whole by monetary damages. It is accordingly agreed that
the parties hereto (i) shall waive, in any action for specific performance,
the defense of adequacy of a remedy at law and (ii) shall be entitled, in
addition to any other remedy to which they may be entitled at law or in
equity, to compel specific performance of this Agreement in any action
instituted in a court of competent jurisdiction.
IN WITNESS WHEREOF, each of the following parties has
caused this Agreement to be signed by their respective officers thereunto
duly authorized, all as of the date first written above.
▇▇▇▇▇▇▇ CORPORATION
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
TORQUE ACQUISITION CO., L.L.C.
By: /s/ Sander ▇. ▇▇▇▇
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Name: Sander ▇. ▇▇▇▇
Title: President
TORQUE MERGER SUB, INC.
By: /s/ Sander ▇. ▇▇▇▇
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Name: Sander ▇. ▇▇▇▇
Title: President
