RELEASE AGREEMENT
THIS RELEASE AGREEMENT is entered into as of the 31st day of October, 1998,
by and among Xxxxxx Electronics, Inc. ("Xxxxxx"), The Thornwater Company L.P.
("Thornwater") and Xxxxxx Acquisition Company, LLC ("HAC").
WHEREAS, Thornwater served as the lead underwriter for Xxxxxx'x initial
public offering (the "IPO") in accordance with that Underwriting Agreement dated
as of March 31,1998 among Xxxxxx, HAC and Thornwater (the "Underwriting
Agreement") pursuant to which agreement Xxxxxx granted Thornwater certain
continuing rights, including, but not limited to the right of first refusal on
future financings;
WHEREAS, Thornwater entered into a Financial Advisory and Investment
Banking Agreement with Xxxxxx dated April 6, 1998 (the "Financial Advisory
Agreement") pursuant to which Thornwater provided services to Xxxxxx and Xxxxxx
utilized Thornwater's advisory services in connection with certain transactions
and other matters;
WHEREAS, in connection with the IPO Thornwater required all shareholders
(including holders of warrants exercisable into Xxxxxx securities) of the
Company prior to the IPO to enter into a lock-up agreement pursuant to which
such shareholders were prohibited from selling or otherwise transferring or
disposing of any such securities for specified periods of time commencing March
31, 1998 without the prior written consent of Thornwater;
WHEREAS, each of Thornwater and Xxxxxx desire to release each other from
certain of their obligations to one another and to further amend their
relationship in accordance with the provisions hereof.
NOW, THEREFORE, in consideration of the mutual covenants and agreements and
upon the terms and subject to the conditions hereinafter set forth, the parties
do hereby covenant and agree as follows:
1. Limited Release by Thornwater. Except as set forth in Section 3 below
and in the proviso to this Section 0, Xxxxxxxxxx hereby releases and discharges
Xxxxxx from all actions, causes of action, suits, debts, dues, sums of money,
accounts, reckonings, bonds, bills, specialties, covenants, obligations,
contracts, controversies, agreements, promises, variances, trespasses, damages,
judgments, extents, executions, claims and demands whatsoever, in law or equity,
which against any of it, Thornwater ever had, now has or hereafter can, shall or
may, have for, upon, or by reason of any matter cause or thing whatsoever from
the beginning of the world to the day of the date of this Release Agreement,
including, without limitation all rights under the Underwriting Agreement and
the Financial Advisory Agreement, provided, however, that this release shall not
release Xxxxxx from its indemnification and contribution obligations under each
of the Underwriting Agreement and Financial Advisory Agreement, which
indemnification obligations on the part of Xxxxxx shall survive this Agreement
in full force and effect and shall remain rights of Thornwater.
2. Release by Xxxxxx. In exchange for Thornwater's release set forth in
Section 1 above, each of Xxxxxx and HAC, releases and discharges Thornwater,
Thornwater Advisory Group Inc. and each of their former and current partners,
limited partners, employees, associates and agents, from all actions, causes of
action, suits, debts, dues, sums of money, accounts, reckonings, bonds, bills,
specialties, covenants, obligations, contracts, controversies, agreements,
promises, variances, trespasses, damages, judgments, extents, executions, claims
and demands whatsoever, in law or equity, which against any of them, Xxxxxx or
HAC, each of their officers, directors, shareholders, subsidiaries, affiliates,
successors or assigns ever had, now have or hereafter can, shall or may, have
for, upon, or by reason of any matter cause or thing whatsoever from the
beginning of the world to the day of the date of this Release Agreement,
including, without limitation any and all obligations arising under the
Underwriting Agreement and the Financial Advisory Agreement.
3. Notwithstanding the release set forth in Section 1 above, those lock-up
agreements referred to on page 40 of the prospectus dated March 31, 1998 issued
in connection with the IPO and any and all other lock-up agreements entered into
between pre-IPO shareholders and Thornwater shall remain in full force and
effect, except that the term of each such lock-up shall be reduced to the close
of business (New York time) on January 1, 1999.
4. As soon as practicable after the date hereof, Xxxxxx agrees to issue a
press release with respect to the reduction of the term of the lock-ups referred
to in Section 3 above.
5. Governing Law. This Agreement shall be governed by, and construed in
accordance with, the laws of the State of New York without regard to the
conflict of law principles thereof.
6. Entire Agreement/Amendments. This Agreement contains the entire
agreement and understanding between the parties and supersedes and preempts any
prior understandings or agreements, whether written or oral. The provisions of
this Agreement may be amended or waived only with the prior written consent of
the parties hereto
7. Successors and Assigns. This Agreement shall be binding upon, inure to
the benefit of, and shall be enforceable by parties hereto and their respective
successors and permitted assigns.
8. Notices. All notices and other communications under this Agreement shall
be in writing and shall be deemed effective and given upon actual delivery if
presented personally, one business day after the date sent if sent by prepaid
telegram, overnight courier service, telex or facsimile transmission or five
business days if sent by registered or certified mail, return receipt requested,
postage prepaid which shall be addressed to the following addresses:
If to Thornwater:
The Thornwater Company L.P.
c/o Ziegler, Xxxxxxx & Xxxxxx LLP
000 Xxxxxxxxx Xxxxxx - 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx X. Xxxxxxx, Esq.
If to Xxxxxx:
Xxxxxx Electronics, Inc.
000 Xxxxx Xxxxxx
Xxxxxxxxx, Xxx Xxxxxx 00000
Attention: Xxxxxxx Xxxxx
9. Severability. If any provision of this Agreement or the application of
any such provision to any person or circumstance shall be held invalid, illegal
or unenforceable in any respect by a court of competent jurisdiction, such
invalidity, illegality or unenforceability shall not affect any other provision
hereof.
10. Section and Other Headings. The section headings contained in this
Agreement are for reference purposes only and shall not affect in any way the
meaning or interpretation of this Agreement.
11. Counterparts. This Agreement may be executed in any number of
counterparts, each of which when so executed and delivered shall be deemed to be
an original and all of which together shall be deemed to be one and the same
agreement. A facsimile copy of a signature hereupon shall have the same force
and effect as if this document contained manual signatures of the parties
hereto.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first written above.
THE THORNWATER COMPANY L.P.
By:/s/Xxxxxx Xxxxxxxxx
--------------------------------
Name:Xxxxxx Xxxxxxxxx
Title: Executive Vice President
XXXXXX ELECTRONICS, INC.
By:/s/Xxxxxxx X. Xxxxx
-------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Chairman
XXXXXX ACQUISITION COMPANY, LLC
By:/s/Xxxxxxx X. Xxxxx
-------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Manager
