EXHIBIT 3
ASSIGNMENT AND ASSUMPTION
ASSIGNMENT AND ASSUMPTION, dated November 18, 1996, between Xxxxx
Xxxxx ("Blech") and The Xxxxxx X. Xxxxx Trust, a New York trust (the "Trust").
WHEREAS, Blech is the "Purchaser" under and as defined in the Stock
Purchase Agreement, dated as of November 18, 1996 (the "Agreement"; terms used
and not defined herein shall have the respective meanings as defined in the
Agreement), among Blech, Xechem International, Inc., a Delaware corporation
(the "Company"), and Xxxxxx X. Xxxxxx, pursuant to which, among other things,
the Purchaser has agreed to purchase certain shares of the capital stock stock
of the Company; and
WHEREAS, Blech wishes to assign to the Trust, and the Trust wishes to
assume, the obligations of Blech to purchase certain of such shares;
NOW, THEREFORE, Blech and the Trust hereby agree as follows:
1. Blech hereby assigns to the Trust Blech's rights to purchase the
Initial Shares and the Second Shares.
2. The Trust hereby assumes, and agrees to perform, all of Blech's
obligations under the Agreement with respect to the Initial Shares and the
Second Shares, as if the Trust were the "Purchaser" with respect thereto.
3. The Trust further agrees to be bound by, and hereby becomes a party
to, the Stockholders Agreement, as a "Purchaser Stockholder" as defined therein.
4. Pursuant to Section 1.1(a)(ii) of the Agreement, the Trust hereby
acknowledges and agrees that delivery to it of the Initial Shares includes
payment in full of the promissory note referred to in such Section 1.1(a)(ii)
and of all other advances made by the Trust to the Company prior to the date
hereof.
5. Pursuant to Section 10.6(b) of the Agreement, the Trust hereby
represents and warrants as follows:
(a) Organization. The Trust is a trust duly organized and
validly existing under the laws of the State of New York, with all
requisite power and authority to own, lease, license, and use its
properties and assets and to carry on the business in which it is now
engaged and the business in which it contemplates engaging.
(b) Authority to Buy. The Trust has all requisite power and
authority to execute, deliver, and perform this Assignment (which
performance, for all purposes of this Assignment, shall include
performance of the obligations assumed by the Trust under the
Agreement and the Stockholders Agreement). All necessary trust
proceedings of the Trust have been duly taken to authorize the
execution, delivery, and performance of this Assignment by the Trust.
This Assignment has been duly authorized, executed, and delivered by
the Trust, and this Assignment is the legal, valid, and binding
obligation of the Trust and is enforceable as to the Trust in
accordance with its terms.
(c) No Conflicts. No consent, authorization, approval, order,
license, certificate, or permit of or from, or declaration or filing
with, any federal, state, local, or other governmental authority or
any court or other tribunal is required for the execution, delivery,
or performance by the Trust of this Assignment. No consent of any
party to any Contract to which the Trust is a party, or to which it or
any of its businesses, properties, or assets are subject, is required
for the execution, delivery, or performance of this Assignment by the
Trust; and the execution, delivery, and performance of this Assignment
by the Trust will not violate, result in a breach of, conflict with,
or (with or without the giving of notice or the passage of time or
both) entitle any party to terminate or call a default under, entitle
any party to rights and privileges that such party was not receiving
or entitled to receive immediately before this Assignment was executed
under, or create any obligation on the part of the Trust that it was
not paying or obligated to pay immediately before this Assignment was
executed under, any term of any such Contract or violate or result in
a breach of any term of the trust agreement of the Trust, or violate,
result in a breach of, or conflict with any law, rule, regulation,
order, judgment, or decree binding on the Trust or to which it or any
of its businesses, properties, or assets are subject.
(d) Non-Distributive Intent. The Trust is an accredited
investor. The Trust is acquiring the Purchaser Shares, and on
conversion of any the Purchaser Shares will acquire the underlying
Conversion Shares, for its own account (and not for the account of
others) for investment and not with a view to the distribution
thereof. The Trust will not sell or otherwise dispose of the Purchaser
Shares or Conversion Shares (whether pursuant to a liquidating
distribution or otherwise) without registration under the Securities
Act or an exemption therefrom, and the certificate or certificates
representing the Purchaser Shares and the Conversion Shares may
contain a legend to the foregoing effect. The Trust has been given
access to the kind of financial and other information about the
Company as would be contained in a registration statement filed under
the Securities Act. Without limiting the foregoing, the Trust
acknowledges receipt of the SEC reports and the other documents listed
in or attached to Exhibit 4.3 to the Agreement. The Trust understands
that it may not sell or otherwise dispose of the Purchaser Shares or
Conversion Shares in the absence of either a registration statement
under the Securities Act or an exemption from the registration
provisions of the Securities Act.
(e) Completeness of Disclosure. No representation or warranty
by the Trust in this Assignment contains or (except for changes beyond
the control of the Trust) on any Closing Date on which the Trust
purchases Purchaser Shares will contain an untrue statement of a
material fact or omits or (except for changes beyond the control of
the Trust) on any such Closing Date will omit to state a material fact
required to be stated therein or necessary to make the statements made
therein not misleading.
6. The Company shall be entitled to rely on, and shall be a third
party beneficiary of, the representations, warranties, covenants, and
agreements of Blech and the Trust contained in this Assignment.
7. The address for notices to the Trust shall be c/o Rabbi Xxxxxxxxx
Xxxxx, Trustee, 000 Xxxxxx X, Xxxxxxxx, Xxx Xxxx 00000 facsimile no. (718)
338-7605.
8. At any time and from time to time, each party hereto agrees, without
further consideration, to take such actions and to execute and deliver such
documents as may be reasonably
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necessary more effectively to carry out the transfer of assets and assumption
of liabilities contemplated by this Assignment.
9. This Assignment shall be governed by and construed in accordance
with the laws of the State of New York, without giving effect to conflict of
laws.
IN WITNESS WHEREOF, the parties hereto have duly executed this
Assignment as of the date first above written.
/s/ Xxxxx Xxxxx
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Xxxxx Xxxxx
THE XXXXXX X. XXXXX TRUST
By: /s/ Xxxxxxxxx Xxxxx
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Xxxxxxxxx Xxxxx, Trustee
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