1
EXHIBIT 10.6
Execution Copy _____ of ______
CROSS-RELEASE
CROSS-RELEASE (this "Agreement") dated as of May 19, 2000 among ROME
GROUP, INC., a Delaware corporation ("Parent"), RGCP ACQUISITION CORP., a
Delaware corporation ("Sub"), CONNECTIVITY PRODUCTS INCORPORATED, a Delaware
corporation (the "Company"), and CONNECTIVITY TECHNOLOGIES INC., a Delaware
corporation ("CTI").
W I T N E S S E T H :
WHEREAS, since May 1996 the Company has been a majority owned
Subsidiary of CTI; and
WHEREAS, Parent, Sub, CTI and the Company have entered into an
Agreement and Plan of Merger dated as of May 19, 2000 (the "Merger Agreement"),
whereby Sub, a wholly-owned Subsidiary of Parent, is to be merged with and into
the Company, whereby the Company, as the Surviving Corporation, will become a
wholly-owned Subsidiary of Parent (the "Merger"); and
WHEREAS, pursuant to Section 7.1(g) of the Merger Agreement, it is a
condition precedent to the respective obligations of Parent, Sub, CTI and the
Company to effect the Merger that this Agreement shall have been executed and
delivered by each of the parties hereto and that this Agreement shall be in full
force and effect; and
WHEREAS, the respective releases made herein shall be effective only
from and after the Effective Time of the Merger, as of which time the Company,
as the Surviving Corporation, shall cease to have any Affiliate relationship
with CTI.
NOW, THEREFORE, in consideration of the premises and agreements
contained herein, the parties hereto agree as follows (with capitalized terms
used herein without textual definition having the meanings given thereto in the
Merger Agreement):
2
1. RELEASES.
1.1. Release by CTI.
(a) Effective as of the Effective Time, CTI, on behalf of itself and
each of its Affiliates, and each of their respective officers, directors,
stockholders and other equity holders, in each case in such capacity and no
other capacity (including as employee), and each of the predecessors, successors
and assigns of the foregoing, in all cases past, present and future
(collectively, in such context, the "CTI Releasors"), hereby releases and
forever discharges Parent, the Surviving Corporation and Parent's other
Affiliates, and each of their respective officers, directors, stockholders and
other equity holders, in each case in such capacity and no other capacity
(including as employee), and each of the predecessors, successors and assigns of
the foregoing, in all cases past, present and future (collectively, in such
context, the "Rome Releasees"), from any and all claims, demands, actions,
arbitrations, audits, hearings, investigations, litigations or suits, causes of
action, judgments, executions, verdicts, obligations, contracts, agreements,
debts and liabilities whatsoever, whether known or unknown, suspected or
unsuspected, both at law and in equity (collectively, "Claims"), which each or
any of the CTI Releasors now has, ever had, or may hereafter have against the
respective Rome Releasees arising contemporaneously with or prior to the
Effective Time or on account of or arising out of any matter, cause or event
occurring contemporaneously with or prior to the Effective Time, including any
rights to indemnification or reimbursement, and whether or not pending as of, or
asserted after, the Effective Time; provided, however, that nothing contained in
this Section 1.1(a) shall operate to release (A) any Claims (x) arising under
the Merger Agreement or any agreement or instrument delivered by Parent or Sub
pursuant to the Merger Agreement (other than closing certificates including
those specifically called for in Article 7 of the Merger Agreement) and (y)
relating to any obligation which by the terms of the Merger Agreement or such
agreement or instrument is to be performed after the Effective Time or (B) any
Claims arising under the Xxxxxxxxxxx Agreement or the releases and covenants not
to xxx delivered in connection with the closing of the Xxxxxxxxxxx
-2-
3
Agreement Transactions (collectively, the "Xxxxxxxxxxx Claims").
(b) CTI, on behalf of itself and each other CTI Releasor, hereby
irrevocably covenants to refrain from, directly or indirectly, asserting any
claim or demand, or commencing, instituting or causing to be commenced any
proceeding of any kind against any Rome Releasee, based upon any Claim purported
to be released in Section 1.1(a).
(c) Without in any way limiting any of the rights and remedies
otherwise available to any Rome Releasee, CTI shall indemnify and hold harmless
each Rome Releasee from and against all loss, liability, claim, damage
(excluding incidental and consequential damages) or expense (including costs of
investigation and defense and reasonable attorney's fees) whether or not
involving third party claims, arising directly or indirectly from or in
connection with (i) the assertion by or on behalf of any CTI Releasor of any
Claim purported to be released pursuant to Section 1.1(a) or (ii) the assertion
by any third party of any claim or demand against any Rome Releasee which claim
or demand arises directly or indirectly from, or in connection with, any
assertion by or on behalf of any CTI Releasor against such third party of any
Claim purported to be released pursuant to Section 1.1(a).
1.2. Release by Parent, the Company and Sub.
(a) Effective as of the Effective Time, Parent, the Company and Sub,
and each of them on behalf of themselves, jointly and severally, (or the
Surviving Corporation in the case of the Company and Sub) and each of their
Affiliates, and each of their respective officers, directors, stockholders and
other equity holders, in each case in such capacity and no other capacity
(including as employee), and each of the predecessors, successors and assigns of
the foregoing, in all cases past, present and future (collectively, in such
context, the "Rome Releasors"), hereby release and forever discharge CTI and its
Affiliates, and each of their respective officers, directors, stockholders and
other equity holders, in each case in such capacity and no other capacity
(including as employee), and each of the predecessors, successors and assigns of
the foregoing, in all cases past, present and future (collectively, in such
context, the "CTI Releasees"), from any and all Claims
-3-
4
which each or any of the Rome Releasors now has, ever had, or may hereafter have
against the respective CTI Releasees arising contemporaneously with or prior to
the Effective Time or on account of or arising out of any matter, cause or event
occurring contemporaneously with or prior to the Effective Time, including any
rights to indemnification or reimbursement, and whether or not pending as of, or
asserted after, the Effective Time; provided, however, that nothing contained in
this Section 1.2(a) shall operate to release (A) any Claims (x) arising under
the Merger Agreement or any agreement or instrument delivered by CTI or the
Company pursuant to the Merger Agreement (other than closing certificates
including those specifically called for in Article 7 of the Merger Agreement)
and (y) relating to any obligation which by the terms of the Merger Agreement or
such agreement or instrument is to be performed after the Effective Time, (B)
any Xxxxxxxxxxx Claims or (C) rights of any Rome Releasor existing as of the
Effective Time in respect of options to acquire capital stock of CTI.
(b) Parent, the Company and Sub, and each of them on behalf of
themselves, jointly and severally, (or the Surviving Corporation in the case of
the Company and Sub) and each other Rome Releasor, hereby irrevocably covenant
to refrain from, directly or indirectly, asserting any claim or demand, or
commencing, instituting or causing to be commenced any proceeding of any kind
against any CTI Releasee, based upon any Claim purported to be released in
Section 1.2(a).
(c) Without in any way limiting any of the rights and remedies
otherwise available to any CTI Releasee, Parent and the Surviving Corporation,
and each of them, jointly and severally, shall indemnify and hold harmless each
CTI Releasee from and against all loss, liability, claim, damage (excluding
incidental and consequential damages) or expense (including costs of
investigation and defense and reasonable attorney's fees) whether or not
involving third party claims, arising directly or indirectly from or in
connection with (i) the assertion by or on behalf of any Rome Releasor of any
Claim purported to be released pursuant to Section 1.2(a) or (ii) the assertion
by any third party of any claim or demand against any CTI Releasee which claim
or demand arises directly or indirectly from, or in connection with, any
assertion by or on behalf of any Rome
-4-
5
Releasor against such third party of any Claim purported to be released pursuant
to Section 1.2(a).
-5-
6
2. MISCELLANEOUS.
2.1. Amendment. This Agreement may not be amended except by an
instrument in writing signed on behalf of each of the parties hereto.
2.2. Waiver. The parties hereto may waive compliance with any of the
agreements contained herein. Any agreement on the part of a party hereto to any
such waiver shall be valid only if set forth in a written instrument signed on
behalf of such party.
2.3. Entire Agreement. This Agreement (with its Schedules and
Exhibits), together with the Merger Agreement, contains, and is intended as, a
complete statement of all of the terms of the arrangements between the parties
with respect to the matters provided for herein, supersedes any previous
agreements and understandings between the parties with respect to those matters
and cannot be changed or terminated orally.
2.4. Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of New York applicable to agreements
made and to be performed in New York without regard to principles thereof
regarding choice of law.
2.5. Notices. All notices, requests, demands, waivers and other
communications required or permitted to be given under this Agreement shall be
in writing and shall be deemed to have been duly given if given in a manner
provided for in, and shall be deemed duly received if received in accordance
with, Section 9.4 of the Merger Agreement.
2.6. Severability. If at any time subsequent to the date hereof, any
provision of this Agreement shall be held by any court of competent jurisdiction
to be illegal, void or unenforceable, such provision shall be of no force and
effect, but the illegality or unenforceability of such provision shall have no
effect upon and shall not impair the enforceability of any other provision of
this Agreement.
2.7. Parties Bound. This Agreement shall be binding upon and inure to
the benefit of the parties hereto and their respective successors and assigns.
-6-
7
2.8. No Third Party Beneficiaries. Nothing in this Agreement shall
confer any rights upon any Person other than the parties hereto, the Rome
Releasees and the CTI Releasees and their respective heirs, successors and
permitted assigns.
2.9. Interpretation. When a reference is made in this Agreement to an
Article, Section, Exhibit or Schedule, such reference shall be to an Article,
Section, Exhibit or Schedule of or to this Agreement unless otherwise indicated.
The headings contained in this Agreement are for reference purposes only and
shall not affect in any way the meaning or interpretation of this Agreement.
Whenever the words "include", "includes" or "including" are used in this
Agreement, they shall be deemed to be followed by the words "without
limitation". Whenever from the context it appears appropriate, each term stated
in either the singular or the plural shall include the singular and the plural,
and pronouns stated in the masculine, the feminine or the neuter gender shall
include the masculine, the feminine and the neuter.
2.10. Counterparts. This Agreement may be executed in one or more
counterparts, all of which shall be considered one and the same agreement, and
shall become effective when one or more counterparts have been signed by each of
the parties hereto and delivered to each of the other parties hereto.
[The Balance of This Page Intentionally Left Blank]
-7-
8
IN WITNESS WHEREOF, the undersigned have entered into this Agreement as
of the date first written above.
PARENT:
ROME GROUP, INC.
By: /s/ Xxxx Xxxxx
----------------------------
Name: Xxxx Xxxxx
Title: Vice President
SUB:
RGCP ACQUISITION CORP.
By: /s/ Xxxx Xxxxx
----------------------------
Name: Xxxx Xxxxx
Title: Vice President
COMPANY:
CONNECTIVITY PRODUCTS INCORPORATED
By: /s/ Xxxxx X. Xxxxxxx
----------------------------
Name: Xxxxx X. Xxxxxxx
Title: President and Chief
Executive Officer
CTI:
CONNECTIVITY TECHNOLOGIES INC.
By: /s/ Xxxxx X. Xxxxxxx
----------------------------
Name: Xxxxx X. Xxxxxxx
Title: President and Chief
Executive Officer
-8-
