EXHIBIT 10
ASSIGNMENT AND ASSUMPTION AGREEMENT
This ASSIGNMENT AND ASSUMPTION AGREEMENT (this "Assignment and
Assumption Agreement") is made and entered into as of this 12th day of
June, 1998, by and among Lynx Ventures L.P., a Delaware limited partnership
(the "Investor"), Xxxxx X. Xxxxxxxxx ("Xxxxxxxxx") and Xxxxx X. Xxxxxxxx
("Xxxxxxxx" and together with Drabinsky, the "Executives").
W I T N E S S E T H :
WHEREAS, the execution and delivery of this Assignment and
Assumption Agreement is a condition precedent to the closing of the
transactions contemplated by the Investment Agreement, dated as of April
13, 1998 (the "Investment Agreement"), by and between Livent Inc., a
corporation existing under the laws of the Province of Ontario ("Livent"),
and the Investor; and
WHEREAS, the Investor desires to assume, and the Executives
desire to assign, all of the Executives' assignable rights under the Voting
Trust Agreement, dated as of May 19, 1993 (the "Management Voting Trust
Agreement"), by and among Livent, the Executives, certain members of
Livent's management and the Depositary (as defined therein), effective as
of the Closing Date (as defined in the Investment Agreement), upon the
terms and subject to the conditions hereof.
NOW, THEREFORE, in consideration of the mutual covenants and
agreements hereinafter set forth and other good and valuable consideration
the receipt and sufficiency of which is hereby acknowledged, the parties
hereto, intending to be legally bound, hereby agree as follows:
1. Assignment. Each Executive hereby assigns to the Investor,
effective as of the Closing Date, all of its right, title and interest in,
to and under the Management Voting Trust Agreement, to the extent such
right, title and interest may be assigned by such Executive, to have and to
hold the same unto the Investor and its successors.
2. Assumption. The Investor hereby accepts the foregoing
assignment of all of the Executives' right, title and interest in, to and
under the Management Voting Trust Agreement and assumes all such rights,
title and interest thereunder to the extent that the same may be assigned
by the Executives.
3. Unassignable Rights. Each Executive hereby agrees that to
the extent that any of its right, title and interest in, to and under the
Management Voting Trust Agreement are determined to be unassignable (the
"Unassignable Rights"), the Executive shall, during the term of this
Assignment and Assumption Agreement, be deemed to hold all such
Unassignable Rights in trust for, and for the benefit of, the Investor and
shall, in connection with the exercise of any such Unassignable Rights,
consult with the Investor and take such action with respect to such
exercise as the Investor shall request.
4. Resignation and Appointment of Trustee. Effective as of the
Closing Date, each Executive hereby resigns from the position of Voting
Trustee (as defined in the Management Voting Trust Agreement) under the
Management Voting Trust Agreement and appoints the Investor as its
successor, in accordance with the provisions of Section 12 (b) thereunder,
to exercise all of the rights, powers and discretions of the Voting Trustee
granted thereunder. The Investor hereby accepts the foregoing appointment
as Voting Trustee under the Management Voting Trust Agreement and agrees to
be bound by the provisions of the Management Voting Trust Agreement as if
it were an original signatory thereto.
5. Further Assurances. Each of the Executives hereby agree to
do all such acts and things and execute and deliver, or cause to be
executed and delivered all such documents, notices, instruments and
agreements as may be necessary or desirable to give effect to the
provisions of and the intent of this Assignment and Assumption Agreement.
6. Warranty.
(a) Each Executive hereby represents, warrants and agrees that
pursuant to this Assignment and Assumption Agreement, the Investor has
all of the rights, powers and discretions of the Voting Trustee under
the Management Voting Trust Agreement.
(b) Each Executive hereby represents, warrants and agrees that
he is free to enter into this Agreement and is not subject to any
obligations or agreements which will or might prevent or interfere
with the performance of his obligations hereunder. Each Executive
further represents and warrants and acknowledges and agrees that he
has had the opportunity to seek, and was not prevented or discouraged
from seeking, independent legal advice prior to the execution and
delivery of this Assignment and Assumption Agreement and that, in the
event that he did not avail himself of that opportunity prior to
signing this Assignment and Assumption Agreement, he did so
voluntarily without any undue duress or pressure and agrees that this
failure to obtain legal advice shall not be used by him as a defense
as to the enforcement of his obligations under this Assignment and
Assumption Agreement.
7. Term and Termination.
(a) This Assignment and Assumption Agreement shall become
effective as of the Closing Date and shall remain in full force and
effect, unless otherwise terminated in accordance with the terms of
this Agreement, from the Closing Date through to the date which is
twenty one (21) years after the death of the last living Executive.
(b) This Assignment and Assumption Agreement shall automatically
terminate if at any time following the Closing Date the Investor and
its affiliates beneficially own less than the Share Limit (as defined
below). As used herein, the term "Share Limit" shall mean initially
500,000 shares of common stock, no par value, of Livent and shall be
appropriately adjusted from time to time to take into account dilutive
effects resulting from changes in the number of shares of common stock
outstanding subsequent to the Closing Date, whether by
recapitalization, declaration of a stock split, payment of a stock
dividend or otherwise.
(c) Upon termination of this Assignment and Assumption Agreement
(i) all right, title and interest in, to and under the Management
Voting Trust Agreement assigned by the Executives and assumed by the
Investor hereunder shall be automatically reassigned by the Investor
and assumed by the respective Executive to the extent previously
assigned by such Executive pursuant to this Assignment and Assumption
Agreement and (ii) the Investor, without any further action on its
part, shall be deemed to have resigned from its position as Voting
Trustee and reappointed each of the Executives to their previous
position as Voting Trustee.
8. Binding Effect. This Assignment and Assumption Agreement
shall be binding upon and inure solely to the benefit of the parties hereto
and may not be assigned by any party without the prior written consent of
the other parties.
9. Specific Performance. The parties hereto acknowledge and
agree that monetary damages for breaches of covenants contained herein may
not be an adequate remedy and that the covenants herein may be enforced in
equity by a decree requiring specific performance.
10. Counterparts. This Assignment and Assumption Agreement may
be executed in two or more counterparts, each of which shall be deemed an
original, but all of which together shall constitute one and the same
instrument.
11. Governing Law. This Assignment and Assumption Agreement
shall be governed by and interpreted in accordance with the laws of the
Province of Ontario and the federal laws of Canada applicable therein,
without regard to any applicable principles of conflicts of laws.
IN WITNESS WHEREOF, the parties hereto have caused this
Assignment and Assumption Agreement to be executed as of the date first
above written.
/s/ Xxxxx X. Xxxxxxxxx
_______________________________
Xxxxx X. Xxxxxxxxx
/s/ Xxxxx X. Xxxxxxxx
_______________________________
Xxxxx X. Xxxxxxxx
LYNX VENTURES L.P.
By: Lynx Ventures L.L.C.,
its General Partner
By: /s/ Xxxxxxx X. Xxxxx
____________________________
Name: Xxxxxxx X. Xxxxx
Title: Managing Member
The undersigned, as Depositary under the Management Voting Trust
Agreement, hereby acknowledges the terms and provisions agreed to by the
parties to this Assignment and Assumption Agreement and consents to the
assignment and assumption of rights contemplated hereby.
MONTREAL TRUST COMPANY
OF CANADA
By: /S/ Xxx Xxxxxxxxxx
____________________________
Name: Xxx Xxxxxxxxxx
Title: Senior Account Manager
