EXHIBIT 49
ASSIGNMENT AND ASSUMPTION AGREEMENT
ASSIGNMENT AND ASSUMPTION AGREEMENT, dated as of February 17,
2000 (this "Agreement"), by and among Xxxxxxx 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:
WHEREAS, Acquisition Company, Merger Subsidiary and the Company,
have entered into an Agreement and Plan of Merger, dated as of December 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6,135,061 Shares are validly tendered and not withdrawn pursuant to the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.
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone No.: (000) 000-0000
Telecopy No.: (000) 000-0000
Attention: Sander X. Xxxx
with a copy to:
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
Xxxx Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone No.: (000) 000-0000
Telecopy No.: (000) 000-0000
Attention: Xxxxxx X. Xxxx, Esq.
(b) if to the Company, to:
Xxxxxxx Corporation
0000 Xxxxxxxxxx Xxxxxx
X.X. Xxx 00000
Xxxxxxxxx, Xxx Xxxx 00000
Telephone No.: (000) 000-0000
Telecopy No.: (000) 000-0000
Attention: Secretary
with a copy to:
Stroock & Stroock & Xxxxx LLP
000 Xxxxxx Xxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone No.: (000) 000-0000
Telecopy No.: (000) 000-0000
Attention: Xxxxx X. Xxxxxxxxx, 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.
XXXXXXX CORPORATION
By: /s/ Xxxxxx X. Xxxxx
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Name: Xxxxxx X. Xxxxx
Title: Vice President
TORQUE ACQUISITION CO., L.L.C.
By: /s/ Sander X. Xxxx
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Name: Sander X. Xxxx
Title: President
TORQUE MERGER SUB, INC.
By: /s/ Sander X. Xxxx
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Name: Sander X. Xxxx
Title: President
