EXHIBIT C
FORM OF QUALIFIED DESIGNEE ASSIGNMENT AND ASSUMPTION AGREEMENT
THIS QUALIFIED DESIGNEE ASSIGNMENT AND ASSUMPTION AGREEMENT (the
"Agreement") is made as of the ____ day of May, 1999 by and among XXXXXXXX
ENTERPRISES, INC., an Indiana corporation ("REI"), ________________________ (the
"Assignee") and XXXXX CREDITORS TRUST (the "Seller"). Capitalized terms used but
not defined in this Agreement shall have the meanings set forth in the Purchase
Agreement (as defined below).
RECITALS:
A. REI and the Seller are parties to that certain Stock Purchase
Agreement dated May ___, 1999 (the "Purchase Agreement") pursuant to
which the Seller agreed to sell, and REI and/or certain Qualified
Designees agreed to purchase, 997,475 Class B Common Shares of
Xxxxxxxx Industries, Inc. (the "Company").
B. Upon execution of this Agreement, the Assignee shall for all purposes
under the Purchase Agreement be a Qualified Designee within the
meaning of the Purchase Agreement.
AGREEMENT:
In consideration of the terms and conditions contained herein and in the
Purchase Agreement and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
1. Assignment. REI hereby transfers and assigns to the Assignee its right
to purchase [______________] Shares pursuant to the Purchase Agreement and
further transfers and assigns to the Assignee, pro rata with the other Qualified
Designees identified on Schedule 1 attached hereto, all other right, title and
interest of REI in, to and under the Purchase Agreement.
2. Assumption. The Assignee hereby agrees to purchase [_______] Shares
pursuant to the Purchase Agreement and accepts and, severally (but not jointly)
to the extent of the Assignee's pro rata interest in the Purchase Agreement,
assumes and agrees to be bound by REI's (and, where applicable, Purchaser's)
obligations under the Purchase Agreement except that the Assignee does not
assume the obligations of REI under Article XII of the Purchase Agreement. The
parties hereby acknowledge and agree that the obligations of REI under Article
XII of the Purchase Agreement shall remain obligations solely of REI.
3. Representations and Warranties of the Assignee. The Assignee hereby
severally (and not jointly) and to the extent of the Assignee's pro rata
interest in the Purchase Agreement represents and warrants to the Seller as
follows:
[a. Organization; Good Standing; Qualification; and Power. The Assignee is
a company, organization, entity, account or plan duly organized,
validly existing and, to the extent Assignee is a corporation or other
entity, in good standing, under the laws of the State of its
organization. The Assignee has all requisite power and authority and
all governmental licenses, authorizations, consents and approvals to
execute and deliver this Agreement and to consummate the transactions
contemplated hereby.] [Bold representations shall only be given by
Qualified Designees other than individuals.]
b. Authority. [The execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby by the Assignee
have been duly authorized by all necessary action on the part of the
Assignee.] This Agreement constitutes a valid and legally binding
obligation of the Assignee enforceable against the Assignee in
accordance with its terms, except as enforceability may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium,
fraudulent transfer or similar laws affecting creditors' rights
generally or by the principles governing the availability of equitable
remedies.
c. No Conflict or Violation. The execution, delivery and performance of
this Agreement and the consummation of the transactions contemplated
hereby do not and shall not: [(a) violate or conflict with the
organizational documents of the Assignee;] (b) violate any provision
of law or any order, judgment, or decree of any court or other
governmental or regulatory authority applicable to the Assignee; or
(c) result in a breach of, or constitute a default (or an event which,
with notice or lapse of time or both would constitute a default)
under, or give rise to any right of termination, cancellation or
acceleration of, or result in the creation of any Lien upon any of the
assets or properties of the Assignee under, any loan agreement,
mortgage, security agreement, indenture, or other agreement or
instrument to which the Assignee is a party or by which the Assignee
is bound or to which any of its properties or assets is subject or
prohibit the Assignee from consummating the purchase and sale of the
Shares as contemplated hereby.
d. No Consent. No authorization, consent, approval, exemption, or other
action by or notice to or filing with any court or administrative or
governmental body or any third party is required to permit the
Assignee to execute and deliver this Agreement, to consummate the
transactions contemplated by this Agreement or to comply with and
fulfill the terms and conditions of this Agreement.
e. Securities Matters. The Assignee understands that the offering and
sale of the Shares under the Purchase Agreement is intended to be
exempt from the registration requirements of the Securities Act. The
Shares are being acquired by the Assignee for its own account and
without a view to the public distribution of the Shares or any
interest therein. The Assignee is an "accredited investor" as such
term is defined in Regulation D promulgated under the Securities Act.
The Assignee is not a broker-dealer subject to Regulation T
promulgated by the Board of Governors of the Federal Reserve System.
The Assignee has sufficient knowledge and experience in financial and
business matters so as to be capable of evaluating the merits and
risks of its investment in the Shares, and the Assignee is capable of
bearing the economic risks of such investment, including a complete
loss of its investment in the Shares. In evaluating the suitability of
an investment in the Shares, the Assignee has relied upon the
representations, warranties, covenants and agreements made by the
Seller in the Purchase Agreement and on such other information
regarding the Company sufficient to allow the Assignee to make an
informed decision regarding purchase of the Shares. The Assignee has
not relied upon any other representations or other information
(whether oral or written and including any estimates, projections or
supplemental data) made or supplied by or on behalf of Seller, the
Company or any Affiliate, employee, agent or other representative of
Seller or the Company other than as contemplated by this Section 3.e.
The Assignee acknowledges that Seller has no responsibility for any
information furnished to it other than as set forth in the
representations and warranties made by Seller in the Purchase
Agreement. The Assignee understands and agrees that it may not sell or
dispose of any of the Shares other than pursuant to a registered
offering or in a transaction exempt from the registration requirements
of the Securities Act and that the Shares will bear an appropriate
legend to that effect.
f. Brokers or Finders Commissions. No broker's or finder's fee or
commission or investment banking fee has been or will be payable, or
asserted to be payable by any of the Assignee, the Seller, the Company
or the Subsidiary with respect to the purchase of the Shares from the
Seller or the transactions contemplated by this Agreement as a result
of any agreement entered into by the Assignee.
g. Financial Condition. The Assignee has sufficient liquidity and
financial condition to consummate the purchase of the Shares at
Closing.
h. EXCLUSIVITY OF REPRESENTATIONS. THE REPRESENTATIONS AND WARRANTIES
MADE BY THE ASSIGNEE IN THIS AGREEMENT ARE IN LIEU OF AND ARE
EXCLUSIVE OF ALL OTHER REPRESENTATIONS AND WARRANTIES, INCLUDING ANY
IMPLIED WARRANTIES. THE ASSIGNEE HEREBY DISCLAIMS ANY SUCH OTHER OR
IMPLIED REPRESENTATIONS OR WARRANTIES, NOTWITHSTANDING THE DELIVERY OR
DISCLOSURE TO SELLER OR ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS OR
REPRESENTATIVES OF ANY DOCUMENTATION OR OTHER INFORMATION.
4. Indemnification by the Assignee. The Assignee shall indemnify and hold
harmless the Seller from and against any and all Indemnity Losses which the
Seller may suffer, incur or become subject to as a result of or in connection
with (a) any breach of any representation or warranty made by the Assignee in
this Agreement and (b) any and all suits, actions, investigations, proceedings,
demands, assessments, audits, and judgments arising out of any of the foregoing.
The obligations of the Assignee pursuant to the foregoing sentence shall be
several (and not joint) with the other Qualified Designees and to the extent of
the Assignee's pro rata interest in the Purchase Agreement. Indemnification of
the Seller by the Assignee shall be pursuant to the terms, conditions and
limitations contained in Sections 12.03, 12.04, 12.06, 12.07 and 12.08 of the
Purchase Agreement (except that the reference to Article VI in Section 12.08
shall be deemed to refer to Section 3 hereof). The representations and
warranties of the Assignee contained in this Agreement shall survive the Closing
indefinitely.
5. Obligations of the Seller. Seller hereby acknowledges the assignment and
assumption of the rights and obligations of REI under the Purchase Agreement by
the Assignee. Seller further acknowledges and affirms that the representations,
warranties, covenants and agreements of Seller contained in the Purchase
Agreement, including without limitation, the obligation to indemnify the REI
Indemnified Parties shall inure to the benefit of the Assignee to the same
extent as though the Assignee were a party to the Purchase Agreement.
6. Stock Price Adjustment. If, on the third anniversary of the date of this
Agreement, the Market Value per Share of the Class A Common Stock of the Company
is less than Eleven and 50/100 Dollars ($11.50) (the amount of any such
deficiency as of such date being referred to as the "Stock Price Deficiency"),
then no later than 15 Business Days thereafter and as additional consideration
for the Shares, the Qualified Designee shall pay in cash to the Seller its pro
rata portion of an amount equal to (a) 22,525, multiplied by (b) the Stock Price
Deficiency. Notwithstanding the above, the Qualified Designee shall have the
right to assign its obligations under this Section to a corporation, partnership
or other entity with the prior written consent of Seller, which consent shall
not be unreasonably withheld, conditioned or delayed, and upon the assumption of
the obligations by such corporation, partnership or other entity, the Qualified
Designee shall be released from its obligations under this Section. For purposes
of this Section, "Market Value per Share" shall mean the average trading price
of one share of Class A Common Stock of the Company over the 20 trading days
ending on the third anniversary of the date of this Agreement as quoted in the
National Quotation Bureau Pink Sheets or on such exchange or in such interdealer
quotation system or other trading market as the Class A Common Stock of the
Company is then quoted.
For purposes of this Agreement, "pro rata" shall mean the ratio (expressed
as a percentage) that the number of Shares purchased by the Qualified Designee
hereunder bears to the total number of Shares purchased by all Qualified
Designees (as set forth on Schedule 1 attached hereto) at the Closing.
7. Miscellaneous.
a. Each party hereto shall be responsible for the fees and expenses of
its accountants, attorneys and advisors and any other costs and
expenses incurred by it in the negotiations and consummation of the
transactions contemplated by this Agreement.
b. All notices, requests, demands, and other communications under this
Agreement shall be in writing and shall be deemed to have been duly
given (a) on the date of service if served personally on the party to
whom notice is to be given, (b) on the day of transmission if sent via
facsimile transmission to the facsimile number given below, provided
that telephonic confirmation of receipt is obtained promptly after
completion of transmission, (c) on the day after delivery to a
nationally recognized overnight courier service or the Express Mail
service maintained by the United States Postal Service, or (d) on the
fifth (5th) day after mailing, if mailed to the party to whom notice
is to be given, by first class mail, registered or certified, postage
prepaid, and addressed as follows:
If to Seller, to:
Xxxxx Creditors Trust
The Chancery
000 Xxxxxx Xxxxxx
Xxxxxxx, Xxx Xxxx 00000
Tel. No. (000) 000-0000
Fax No. (000) 000-0000
With a copy to:
Xx Xxxxxxxx, Esq.
Xxxxxx Xxxxxxx & Xxxx, LLP
Xxx Xxxxxxx Xxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Tel. No. (000) 000-0000
Fax No. (000) 000-0000
which copy alone shall not constitute notice for the purposes of this
Purchase Agreement.
If to REI, to:
Xxxxxxxx Enterprises, Inc.
c/x Xxxxxxx Xxxxxxx Xxxxxxx & Company, Inc.
0000 Xxxxxxxx Xxxxxxxx, Xxxxx 000
Xxxxxxxxxxxx, Xxxxxxx 00000
Attention: Xxxxx Xxxxxxx
Tel. No. (000) 000-0000
Fax. No. (000) 000-0000
With a copy to:
Xxxxxxx X. Xxxxxxx, Esq.
Ice Xxxxxx Xxxxxxx & Xxxx
Xxx Xxxxxxxx Xxxxxx, Xxx 00000
Xxxxxxxxxxxx, Xxxxxxx 00000
Tel. No. (000) 000-0000
Fax. No. (000) 000-0000
which copy alone shall not constitute notice for the purposes of this
Purchase Agreement.
If to the Assignee, to the address and/or fax number set forth below such
Assignee's signature below.
Any party may change its address for the purpose of this Section 6.b. by
giving the other parties written notice of its new address in the manner set
forth above.
c. The section and paragraph headings in this Agreement are for reference
purposes only and shall not affect the meaning or interpretation of
this Agreement.
d. If any provision of this Agreement is declared by any court or other
governmental body to be null, void, or unenforceable, this Agreement
shall be construed so that the provision at issue shall survive to the
extent it is not so declared and that all of the other provisions of
this Agreement shall remain in full force and effect.
e. This Agreement and the Transaction Documents (and the schedules hereto
and thereto) contain the entire understanding among the parties hereto
with respect to the transactions contemplated hereby and thereby and
supersede and replace all prior and contemporaneous agreements,
understandings, representations or warranties, oral or written, with
regard to those transactions. All Schedules hereto are expressly made
a part of this Agreement as fully as though completely set forth
herein.
f. This Agreement may be amended or modified, and any of the terms,
covenants, representations, warranties, or conditions hereof may be
waived, only by a written instrument executed by the parties hereto,
or in the case of a waiver, by the party waiving compliance. Any
waiver by any party of any condition, or of the breach of any
provision, term, covenant, representation, or warranty contained in
this Agreement, in any one or more instances, shall not be deemed to
be or construed as a further or continuing waiver of any condition or
of the breach of any other provision, term, covenant, representation,
or warranty of this Agreement.
g. Nothing in this Agreement is intended to confer any rights or remedies
under or by reason of this Agreement on any Person other than the
Seller, REI and the Assignee and their respective successors and
permitted assigns.
h. Except as contemplated by Section 6 above, no party hereto shall
assign or delegate this Agreement or any rights or obligations
hereunder without the prior written consent of the other parties
hereto, and any attempted assignment or delegation without prior
written consent shall be void and of no force or effect. This
Agreement shall inure to the benefit of and shall be binding upon the
successors and permitted assigns of the parties hereto.
i. This Agreement shall be construed and enforced in accordance with, and
governed by, the laws of the State of New York applicable to contracts
made and to be performed in such state.
j. This Agreement may be executed in counterparts, each of which shall be
deemed an original, but all of which shall together constitute the
same instrument.
k. Assignee hereby appoints REI as its authorized representative for
purposes of executing and delivering the receipt specified in Section
3.03(d) of the Purchase Agreement and hereby authorizes and directs
REI to deliver such receipt upon Seller's delivery and REI's receipt
of the items described in Section 3.02 of the Purchase Agreement.
[Signatures follow next page.]
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed as of the date first written above.
"REI"
XXXXXXXX ENTERPRISES, INC.
By:______________________________________
Its:______________________________________
"SELLER"
XXXXX CREDITORS TRUST
By:______________________________________
Xxxxxxx X. Xxxxx, Trustee
By:______________________________________
Xxxxxx X. Xxxxx, Trustee
By:______________________________________
Xxxx X. Xxxxxxx, Trustee
"ASSIGNEE"
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Address:
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Telephone No. ( )
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Fax No. ( )
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SCHEDULE 1
Other Qualified Designees
Qualified Designee Number of Shares
