WAIVER AGREEMENT
This Waiver Agreement (the "Agreement") by and between Pentacon, Inc., a
Delaware corporation (the "Company") and STOCKHOLDER (the "Founding
Stockholder") a stockholder of FOUNDING COMPANY, a ___________ corporation (the
"Founding Company") is hereby entered into and effective as of the ___________
day of March, 1998. Unless otherwise defined herein, capitalized terms have the
meanings assigned to them in the prospectus (the "Prospectus") included in the
Company's Registration Statement on Form S-1, as amended (Registration No.
333-41383).
RECITALS
WHEREAS, in connection with the organization and formation of the
Company, as described in the Prospectus under the caption "Certain
Transactions", the Founding Stockholder has agreed to acquire Common Stock of
the Company (the "Shares") and cash in consideration for Founding Stockholder's
interest in the Founding Company (the "Investment"); and
WHEREAS, the offer and sale of Shares in connection with the Investment
has not been and will not be registered under the Securities Act of 1933, as
amended (the "Securities Act") and applicable state securities laws but has been
structured as a private placement exempt from the registration requirements of
the Securities Act and state securities laws; and
WHEREAS, due to changes in market conditions and certain delays in
consummation of the Acquisition, certain termination rights may arise, under the
Acquisition Agreement to which the Founding Stockholder is a party, in favor of
the Founding Stockholder; and
WHEREAS, the Founding Stockholder has agreed in the Letter Agreement by
and between the Founding Stockholder and the Company of even date herewith (the
"Letter Agreement") not to exercise such termination rights but to proceed with
the transactions contemplated by the Acquisition Agreement to which the Founding
Stockholder is a party in accordance with the terms of such Acquisition
Agreement; and
WHEREAS, such election by the Founding Stockholder not to exercise such
termination rights could arguably impact the private placement exemption upon
which the Company is relying in its offer and sale of the Shares and could
result in the Founding Stockholder being granted certain rights under federal
and/or state securities laws, including a possible right to rescind the
Investment.
NOW THEREFORE, in consideration of the mutual promises, terms, covenants
and conditions set forth herein and the performance of each it is hereby agreed
as follows:
1. The Founding Stockholder hereby waives any and all rights it now
has, or may hereafter have, to rescind the Investment on the
basis that the offer and sale of Shares in connection with the
Investment was not registered or otherwise was not made in
compliance upon a valid private placement exemption from the
registration requirements of the Securities Act or other federal
or state securities laws (the
"Waiver"). Further, the Founding Stockholder acknowledges and
agrees that the Merger Consideration is adequate consideration
for its interests in the Founding Company and for the execution,
delivery and performance by the Founding Stockholder of this
Agreement, the Recontribution Agreement by and between the
Company and the Founding Stockholder of even date herewith (the
"Recontribution Agreement") and the Letter Agreement.
HOU04:82604.1
-1-
2. The Founding Stockholder acknowledges that the Company, the
Underwriters, the other Founding Companies and their respective
counsel will act and expend substantial additional funds and
efforts towards the completion of the Offering described in the
Prospectus in reliance on this Agreement, the Recontribution
Agreement and the Letter Agreement.
3. The Founding Stockholder further consents to the disclosure of
this Agreement in the Prospectus.
4. The validity, construction and enforcement of this Agreement
shall be governed by the laws of the State of Delaware without
regard to the conflicts of law provisions thereof.
5. This Agreement as well as the Recontribution Agreement and the
Letter Agreement supersede all prior discussions and writings
relating to the subject matter hereof and constitute the entire
agreement between the parties with respect to the subject matter
hereof provided that except for the specific matters herein,
nothing set forth in this Agreement shall alter or affect the
rights of parties in the Acquisition Agreement. No waiver or
modification of this Agreement will be binding upon either party
unless made in writing and signed by a duly authorized
representative of such party and no failure or delay in
enforcing any right will be deemed a waiver.
6. This Agreement may be executed in counterparts, each of which
shall be deemed to be an original instrument, and all of which
together will constitute one and the same Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
PENTACON, INC.
By: /s/ Xxxx X. Xxxxxxx
Name: Xxxx X. Xxxxxxx
Chairman and Chief Executive Officer
By: /s/ See Attached Schedule of
Signatories
STOCKHOLDER
HOU04:82604.1
-2-
SCHEDULE OF SIGNATORIES
Xxxxxxx Xxxxx
Xxxx X. Xxxxxx Trust
Xxxxxx X. Xxxxxx Trust
Xxxxx X. Xxxxxx Trust
Xxxx X. Xxxxxx Trust
Oak Ridge Trust
Xxxx Xxxxxx
Xxxx Xxxxxx
Xxxxxx Xxxx
Xxxxxx List
Xxxxxxxx Xxxxxx, Xx.
Xxxxxxx Xxxxx
Xxxxx Xxxxxxxx
Xxxxxxx Xxxxxx
Xxxxxxx Xxxxx
Xxxxxxx Xxxxxx
Xxxx Xxxxxx XxXxxxx, Xx. Residuary Trust
Xxxxxxxx XxXxxxx
Xxxx X. XxXxxxx
The Don and Xxxxx List Children
Educational Trust For the Benefit of
Xxxx X. List, Xxxxxxx Xxxx, Trustee
The Don and Xxxxx List Children
Educational Trust For the Benefit of
Xxxxxxx List, Xxxxxxx Xxxx, Trustee
The Don and Xxxxx List Children
Educational Trust For the Benefit of
Xxxxxxx X. List, Xxxxxxx Xxxx, Trustee
HOU04:82604.1
-3-