EXHIBIT 10.5
ASSIGNMENT AND ASSUMPTION AGREEMENT
This Assignment and Assumption Agreement (this "Agreement") is made and
entered into as of December 3, 2001, by and among PACIFIC USA HOLDINGS CORP, a
Texas corporation ("PUSA" or "Assignor"); THIRD SECURITY, LLC, a Virginia
limited liability company ("TS" or "Assignee"); and XXXXXXX GLOBAL CORPORATION,
a Delaware corporation ("Xxxxxxx").
WHEREAS, PUSA and Xxxxxxx executed an Option Agreement (the "Option
Agreement"), dated as of August 31, 2001, pursuant to which PUSA was granted
first rights of refusal to match 100% of any third party offer, on the same
price-per-share terms as any transaction approved by the Board of Directors of
Xxxxxxx from August 31, 2001 through August 31, 2002 (the "Refusal Rights"); and
WHEREAS, Paragraph 7 of the Option Agreement provides that PUSA may assign
the Refusal Rights with the consent of Xxxxxxx, which consent may not be
unreasonably withheld; and
WHEREAS, on November 29, the Board of Directors of Xxxxxxx approved a
letter of intent between Xxxxxxx and Technology Partners (Holdings)
LLC("Technology Partners"), pursuant to which Technology Partners intends to
acquire common stock of Xxxxxxx on terms as outlined in the letter of intent
(the "Technology Transaction"); and
WHEREAS, PUSA desires to assign its Refusal Right with respect to the
Technology Transaction to TS and TS desires to assume such right.
NOW, THEREFORE, in consideration of the mutual covenants herein contained,
the parties agree as follows:
1. ASSIGNMENT. PUSA hereby assigns to TS all of its Refusal Right, including
without limitation with respect to the Technology Transaction. PUSA hereby
retains all other rights under the Option Agreement. The Refusal Right
shall revert back to PUSA in the event that TS does not close its equity
investment in Xxxxxxx.
2. ASSUMPTION. TS hereby assumes such Refusal Right and agrees to be bound
and abide by the terms and conditions of the Option Agreement with respect
to the Refusal Right.
3. CONSENT. Xxxxxxx hereby acknowledges PUSA's rights under the Option
Agreement and consents to assignment to TS of the Refusal Right with
respect to the Technology Transaction. PUSA hereby consents to, and waives
any preemptive rights or rights of first refusal it may have, with respect
to any investment in or loan to Xxxxxxx made by TS, whether such investment
or loan is made pursuant to the Refusal Right or otherwise.
4. EFFECTIVE DATE. This Agreement shall be effective as of the date first
above written.
5. NOTICES. Paragraph 5 of the Option Agreement is hereby amended to include
notice to TS in connection with exercise of the Refusal Right related to
the Technology Transaction, as follows:
If to Optionee (with respect to that certain letter of intent between
Optionor and Technology Partners Inc.):
Third Security LLC
Attn: Xxxxxx Xxxxx
The Governor Tyler
0000 Xxxxxx Xxxxxx
Xxxxxxx, XX 00000
With courtesy copy to: Hunton & Xxxxxxxx
Attn: X. Xxxxxx Xxxxxxx, Esq.
000 Xxxx Xxxx Xxxxxx
Xxxxxxxx, Xxxxxxxx 00000
6. GOVERNING LAW. This Agreement shall be governed by, and construed and
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enforced in accordance with, the laws of the State of Texas.
7. CONSTRUCTION. The captions and headings contained herein are for
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convenient reference only and shall not in any way affect the meaning or
interpretation of this Agreement. Notwithstanding any rule or maxim of
construction to the contrary, any ambiguity or uncertainty in this Agreement
shall not be construed against either party based upon authorship of any of the
provisions hereof.
8. COUNTERPARTS; FACSIMILES. This Agreement may be executed in two (2) or
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more counterparts, each of which shall be deemed an original, and all of which
together shall constitute one (1) and the same instrument. Delivery of an
executed counterpart of a signature page to this agreement by facsimile shall be
effective as delivery of a manually executed counterpart of this agreement.
[SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first hereinabove written.
ASSIGNOR:
PACIFIC USA HOLDINGS CORP.,
a Texas corporation
By: /s/ Xxxxxxx XxXxxx
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Name: Xxxxxxx XxXxxx
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Title: COO/CEO
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ASSIGNEE:
THIRD SECURITY, LLC,
a Virginia limited liability company
By: /s/ Xxxxxx X. Xxxx
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Xxxxxx X. Xxxx
Manager
XXXXXXX:
XXXXXXX GLOBAL CORPORATION,
a Delaware corporation
By: /s/ Xxxxx X. Xxxxxxxx
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Name: Xxxxx X. Xxxxxxxx
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Title: Chairman
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