Torbay Acquisition Corporation
0000 X Xxxxxx, XX
Xxxxxxxxxx, X.X.
June 9, 1998
TPG Capital Corporation
0000 X Xxxxxx, X.X.
Washington, D.C. 20009
Re: Lock Up Agreement with Torbay Acquisition Corporation
Gentlemen:
As part of the sale of the shares of Common Stock of Torbay Acquisition
Corporation (the "Company") to the undersigned (the "Holder"), the Holder
hereby represents, warrants, covenants and agrees, for the benefit of the
Company and the holders of record (the "third party beneficiaries") of the
Company's outstanding securities, including the Company's Common Stock,
$.0001 par value (the "Stock") at the date hereof and during the pendency of
this letter agreement that the Holder will not transfer, sell, contract to
sell, devise, gift, assign, pledge, hypothecate, distribute or grant any
option to purchase or otherwise dispose of, directly or indirectly, its
shares of Stock of the Company owned beneficially or otherwise by the Holder
except in connection with or following completion of a merger or acquisition
by the Company and the Company is no longer classified as a blank check
company as defined in Section 7(b)(3) of the Securities Act of 1933, as
amended.
Any attempted sale, transfer or other disposition in violation of this
letter agreement shall be null and void.
The Holder further agrees that the Company (i) may instruct its transfer
agent not to transfer such securities until permitted by the terms hereof
(ii) may provide a copy of this letter agreement to the Company's transfer
agent for the purpose of instructing the Company's transfer agent concerning
the terms relating to the securities subject hereto and disclosing that any
transfer, sale, contract for sale, devise, gift, assignment, pledge or
hypothecation of such securities is subject to the terms of this letter
agreement and (iii) may issue stop-transfer instructions to its transfer
agent for the period contemplated by this letter agreement for such securities.
This letter agreement shall be binding upon the Holder, its agents, heirs,
successors, assigns and beneficiaries.
Any waiver by the Company of any of the terms and conditions of this letter
agreement in any instance must be in writing and must be duly executed by
the Company and the Holder and shall not be deemed or construed to be a
waiver of such term or condition for the future, or of any subsequent breach
thereof.
The Holder agrees that any breach of this letter agreement will cause the
Company and the third party beneficiaries irreparable damage for which there
is no adequate remedy at law. If there is a breach or threatened breach of
this letter agreement by the Holder, the Holder hereby agrees that the
Company and the third party beneficiaries shall be entitled to the issuance
of an immediate injunction without notice to restrain the breach or
threatened breach. The Holder also agrees that the Company and all third
party beneficiaries shall be entitled to pursue any other remedies for such
a breach or threatened breach, including a claim for money damages.
THE HOLDER
By: /s/TPG Capital Corporation
Xxxxxx and accepted this 9th day of June , 1998.
