ASSIGNMENT AND CONSENT TO ASSIGNMENT OF
INVESTMENT AGREEMENT
ASSIGNMENT AND CONSENT TO ASSIGNMENT OF INVESTMENT AGREEMENT, dated May
7, 1999 (this "Assignment and Consent"), by and among Samstock, L.L.C., a
Delaware limited liability company ("Samstock"), Xxxxxxxxx Holding Corporation,
a Delaware corporation (the "Company"), Xxxxxx X. Xxxxxxx ("Xxxxxxx") and SZ
Investments, L.L.C., a Delaware limited liability company ("SZ"), relating to
the Investment Agreement (the "Investment Agreement"), dated as of April 14,
1998, by and among Samstock, Xxxxxxx and the Company. All capitalized terms not
otherwise defined herein shall have the meanings given such terms in the
Investment Agreement.
WHEREAS, Samstock is controlled by SZ, its sole limited liability
company member;
WHEREAS, Samstock desires to assign to SZ (the "Assignment"), and SZ
desires to assume from Samstock (the "Assumption"), all of Samstock's rights,
duties, obligations and interest arising under the Investment Agreement; and
WHEREAS, the Company desires to consent to the Assignment and the
Assumption pursuant to Section 3.10 of the Investment Agreement.
NOW, THEREFORE, in consideration of the premises and the mutual
promises herein made, and other good and valuable consideration the receipt and
sufficiency of which are hereby acknowledged, the parties agree as follows:
1. Assignment and Assumption. Samstock hereby assigns to SZ all of its
rights, obligations, duties, liabilities and interests arising under or relating
to the Investment Agreement, and SZ hereby accepts this Assignment from
Samstock. Samstock shall be released from, and SZ shall assume as its direct
obligations as if SZ were the original party to the Investment Agreement with
the Company and Xxxxxxx, all of Samstock's rights, obligations, duties,
liabilities and interests arising under or relating to the Investment Agreement,
and agrees to perform and discharge all of Samstock's obligations, duties, and
liabilities thereunder. The Assignment and Assumption shall be effective as of
the date hereof.
2. Consent to Assignment and Assumption. The Company hereby consents,
pursuant to Section 3.10 of the Investment Agreement, to the Assignment and
Assumption as provided in the foregoing paragraph and agrees that wherever the
term "Samstock" appears in the Investment Agreement, it shall be deemed to read
and refer to SZ. The Company hereby fully, finally and forever waives, releases
and discharges Samstock from any and all claims, causes of action, demands,
suits, costs, liabilities,
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debts, expenses (including but not limited to reasonable attorneys' fees)
and damages, that it now may have, ever had, or hereafter may acquire of
whatsoever nature and kind, whether known or unknown, whether now existing
or hereafter arising, whether at law or in equity, in contract, tort or
otherwise, by statute or common law, arising out of the Investment
Agreement.
3. Miscellaneous.
(a) Counterparts. This Assignment and Consent may be executed
in one or more counterparts, each of which shall be deemed an original but both
of which together will constitute one and the same instrument.
(b) Headings. The section headings contained in this
Assignment and Consent are inserted for convenience only and shall not affect in
any way the meaning or interpretation of this Assignment and Consent.
(c) Governing Law; Jurisdiction; Process. This Assignment and
Consent shall be governed by and construed in accordance with the internal laws
(and not the laws of conflicts) of the State of Delaware.
(d) Parties in Interest. This Assignment and Consent shall be
binding upon and inure to the benefit of the parties hereto and their respective
legal representatives, successors and assigns.
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IN WITNESS WHEREOF, the parties hereto have executed this Assignment
and Consent to Assignment of Investment Agreement as of the date first above
written.
SAMSTOCK, L.L.C.
By: Xxxxxx X. Xxxxxxxxxxx
_______________________________
Name: Xxxxxx X. Xxxxxxxxxxx
Title: Vice President
SZ INVESTMENTS, L.L.C.
By: Xxxxxx X. Xxxxxxxxxxx
_______________________________
Name: Xxxxxx X. Xxxxxxxxxxx
Title: Vice President
XXXXXXXXX HOLDING CORPORATION
By: Xxxxx Xxxxx
_______________________________
Name: Xxxxx Xxxxx
Title: President and
Chief Operating Officer
Xxxxxx X. Xxxxxxx
_______________________________
XXXXXX X. XXXXXXX
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