RECONTRIBUTION AGREEMENT
This Recontribution 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") but has been structured as a private placement
exempt from the registration requirements of the Securities Act; 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
Agreements; 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 law, including a possible right to rescind the
Investment; and
WHEREAS, the parties hereto have entered into that certain Waiver
Agreement of even date herewith (the "Waiver") pursuant to which the Founding
Stockholder waived certain rights the Founding Stockholder may have 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:
HOU04:82603.1
-1-
1. The Founding Stockholder agrees that if the Waiver is deemed
void or unenforceable for any reason, including, without
limitation, Section 14 of the Securities Act, the entire
beneficial interest in all property and amounts received by the
Founding Stockholder in any action to rescind the Investment
(whether initiated by the Founding Stockholder) or otherwise
received or receivable by the Founding Stockholder as damages
for failure to register the offer and sale of Shares under the
Securities Act, will be promptly paid over, conveyed and
contributed by the Founding Stockholder to the Company for no
additional consideration from the Company. 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 Waiver and
the Letter Agreement.
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 Waiver and the
Letter Agreement. The Founding Stockholder agrees to indemnify
and hold harmless all such persons against any expenses or
damages resulting from any breach by the Founding Stockholder of
this Agreement. All such persons will be considered to be third
party beneficiaries of this 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 Waiver 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 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. The Founding Stockholder agrees that the Company, in addition to
any other remedies available to it, shall be entitled to
preliminary and permanent injunctive relief against any breach
or threatened breach by the Founding Stockholder of this
Agreement, without having to post bond.
7. 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.
HOU04:82603.1
-2-
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
HOU04:82603.1
-3-
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
-4-
