Exhibit 10.6
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 ________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, Inc., 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 TP and TP 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 TP its Refusal Right with respect to the
Technology Transaction. PUSA hereby retains all other rights under the
Option Agreement.
2. ASSUMPTION. TP hereby assumes such Refusal Right and agrees to be bound and
abide by the terms and conditions of the Option Agreement.
3. CONSENT. Xxxxxxx hereby acknowledges PUSA's rights under the Option
Agreement and consents to assignment to TP of the Refusal Right with
respect to the Technology Transaction.
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 TP 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
The Governor
0000 Xxxxxx Xxxxxx
Xxxxxxx, XX 00000
With courtesy copy to: Hunton & Xxxxxxxx
Attn: Xxxx Xxxx Gwaphmey
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6. GOVERNING LAW. This Agreement shall be governed by, and construed and
enforced in accordance with, the laws of the state of Texas.
7. CONSTRUCTION. The captions and headings contained herein are for 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 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:_________________________________
Name:____________________________
Title:___________________________
ASSIGNEE:
THIRD SECURITY LLC,
a _________ limited liability company
By:_________________________________
Name:____________________________
Title:___________________________
XXXXXXX:
XXXXXXX GLOBAL CORPORATION,
a Delaware corporation
By:_________________________________
Name:____________________________
Title:___________________________
