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Exhibit 2.4
ASSIGNMENT AND ASSUMPTION AGREEMENT
This Assignment and Assumption Agreement (this "Agreement") is made as
of the 30th day of September 1998, by and between True Temper Corporation
(formerly known as True Temper Sports, Inc.), a Delaware corporation
("Transferor"), and True Temper Sports, Inc. (formerly known as True Temper
Sports Subsidiary, Inc.), a Delaware corporation and wholly owned subsidiary of
Transferor ("Transferee").
WITNESSETH:
WHEREAS, The Black & Xxxxxx Corporation, a Maryland corporation
("BDC"), True Temper Sports, Inc., a Delaware corporation ("TTSI"), and TTSI
LLC, a Delaware limited liability company ("LLC") have entered into a
Reorganization, Recapitalization and Stock Purchase Agreement, dated as of June
29, 1998, as amended to date (as so amended, the "Recapitalization Agreement"),
pursuant to which, among other things, BDC has agreed to sell and to cause its
Subsidiaries to sell, and LLC has agreed to buy and to cause its Subsidiaries to
buy, the TTS Business;
WHEREAS pursuant to that certain Assignment and Assumption Agreement
(the "TTC Agreement"), dated as of September 30, 1998, by and between Emhart
Industries, Inc., a Connecticut corporation and an indirect, wholly owned
subsidiary of BDC ("EII"), and Transferor, EII contributed, transferred,
conveyed, assigned and delivered to Transferor, free and clear of all Liens
other than Permitted Liens, all of EII's right, title and interest in and to the
Contributed Assets, which assignment is effective at 12:01 a.m. (Eastern time)
on the date hereof;
WHEREAS, pursuant to the TTC Agreement, Transferor assumed and agreed
to pay, discharge and satisfy the Assumed Liabilities, which assumption is
effective at 12:01 am on the date hereof;
WHEREAS, Transferor and Transferee desire to enter into this Agreement
to effect the contribution of the Contributed Assets by the Transferor to the
Transferee, and in consideration for the contribution of the Contributed Assets
the issuance by Transferee to Transferor of (i) 100 shares of the Common Stock
of Transferee and (ii) a Note, in the form attached as Exhibit A in the
aggregate principal amount of $133,616,000;
NOW, THEREFORE, for valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the parties hereto agree as follows:
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ARTICLE I
DEFINITIONS
Section 1.01. Definitions. Capitalized terms used in this Agreement but
not defined herein shall have the meanings given to them in the Recapitalization
Agreement.
ARTICLE II
CONTRIBUTED ASSETS
Section 2.01. Transfer of Assets. Effective upon the full execution of
this Agreement, upon the terms and subject to the conditions set forth in this
Agreement, Transferor contributes, transfers, conveys, assigns and delivers to
Transferee, and Transferee receives, acquires and accepts from Transferor all of
Transferor's right, title and interest in and to the Contributed Assets.
Effective upon the full execution of this Agreement, upon the terms and subject
to the conditions set forth in this Agreement, the TTC Agreement and the
Recapitalization Agreement, Transferee accepts all risk of loss with respect to
the Contributed Assets.
Section 2.02. Assignment of Contracts and Rights.
(a) Anything in this Agreement to the contrary
notwithstanding, this Agreement shall not constitute an agreement to assign any
Contributed Asset or any claim or right or any benefit arising thereunder or
resulting therefrom if an attempted assignment thereof, without the consent of a
third party thereto, would constitute a breach or other contravention thereof,
be ineffective with respect to any party thereto or in any way adversely affect
the rights of Transferee or Transferor, or any Affiliates of Transferee or
Transferor thereunder.
(b) With respect to any Contract or any claim, right or
benefit arising thereunder or resulting therefrom, promptly after the date
hereof, to the extent necessary and reasonably requested by Transferee, the
parties hereto will use reasonable commercial efforts to obtain the written
consent of the other parties to any such Contract for the assignment thereof to
Transferee, or written confirmation from such parties reasonably satisfactory in
form and substance to Transferee and Transferor confirming that such consent is
not required.
(c) If such consent, waiver or confirmation is not obtained
with respect to any such Contract, as among the parties hereto, Transferee will
obtain through a subcontracting arrangement or otherwise, and subject to
Applicable Law and the terms of such Contact, the claims, rights and benefits of
Transferor and, to the extent possible, assume the obligations under such
Contracts in accordance with this Agreement, and Transferor will enforce at the
request of and for the benefit of Transferee, with Transferee assuming
Transferor's obligations, any and all claims, rights and benefits of Transferor
against a third party thereto arising from any such Contract (including the
right to elect to terminate such Contract in accordance with the terms thereof
upon the request of Transferee).
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ARTICLE III
ASSUMED LIABILITIES
Section 3.01. Assumption of Liabilities. Effective upon the full
execution of this Agreement, upon the terms and subject to the conditions of
this Agreement, Transferee assumes and agrees to pay, discharge and satisfy the
Assumed Liabilities.
ARTICLE IV
MISCELLANEOUS
Section 4.01. Construction. As used in this Agreement, the plural shall
include the singular and the singular shall include the plural. With respect to
each and every term and condition of this Agreement, the parties hereto
understand and agree that the same have or has been mutually negotiated,
prepared and drafted, and that if at any time the parties desire or are required
to interpret or construe any such term or condition or any agreement or
instrument subject hereto, no consideration shall be given to the issue of which
party actually prepared, drafted or requested any term or condition of this
Agreement.
Section 4.02. Counterparts; Effectiveness. This Agreement may be signed
in counterparts, each of which shall be an original, with the same effect as if
the signatures thereto and hereto were upon the same instrument. This Agreement
shall become effective when each party has received a counterpart hereof signed
by the other party hereto.
Section 4.03. Captions. The captions used in this Agreement are included
for convenience of reference only and shall be ignored in the construction or
interpretation hereof.
Section 4.04. Severability. Any provision of this Agreement that is
prohibited or unenforceable shall be ineffective to the extent of such
prohibition or unenforceability without invalidating the remaining provisions of
this Agreement. To the extent any provision of this Agreement is determined to
be prohibited or unenforceable Transferor and Transferee agree to use reasonable
commercial efforts to substitute one or more valid, legal and enforceable
provisions that, insofar as practicable implement the purposes and intent of the
prohibited or unenforceable provision.
Section 4.05. Governing Law. This Agreement shall be construed and
interpreted in accordance with and governed by the laws of the State of Delaware
(without regard to the choice of law provisions thereof).
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IN WITNESS WHEREOF, the parties hereto here caused this Agreement to be
duly executed by their respective authorized officers as of the day and year
first above written.
TRUE TEMPER CORPORATION
By: SEAL
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Name:
Title:
TRUE TEMPER SPORTS, INC.
By: SEAL
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Name:
Title:
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