This Agreement is
made as of this 8 th day of January 2006 by and among W. Whitlow
Wyatt (“ Wyatt ”), Phoenix Footwear Group, Inc.
(“ Phoenix ”) and Altama Delta Corporation
(“ Altama ”).
WHEREAS, Wyatt,
Phoenix and Altama are parties to a Stock Purchase Agreement dated
June 15, 2004 (the “ Stock Purchase Agreement
”) pursuant to which on at a closing on July 19, 2004
Wyatt sold to Phoenix and Phoenix purchased from Wyatt all of the
issued and outstanding shares of Altama capital stock;
and
WHEREAS, pursuant
to the Stock Purchase Agreement, at such closing (i) Phoenix
issued in the name of Manufacturers and Traders Trust Company, as
escrow agent (the “ Escrow Agent ”) 196,967
shares of Phoenix common stock (the “ Escrow Shares
”) in accordance with the terms of an Escrow Agreement among
Wyatt, Phoenix and the Escrow Agent; (ii) Phoenix and Wyatt
executed and delivered a Registration Rights Agreement (the “
Registration Rights Agreement ”);(ii) Wyatt, Phoenix
and Altama executed and delivered a Non-Competition and
Confidentiality Agreement (the “ Non-Competition
Agreement ”); and (iii) Wyatt and Altama executed
and delivered a Consulting Agreement (“ Consulting
Agreement ”); and
WHEREAS, an action
commenced August 31, 2005 against Wyatt, Phoenix and Altama by
Caribbean Co-op in the United States District Court for the
District of Puerto Rico, captioned Caribbean Co-op v. Altama
Delta Corporation d/b/a Altama Footwear, Phoenix Footwear Group,
Inc. and W. Whitlow Wyatt , C.A. 05-1923(CC) for damages (such
action, as amended or otherwise re-filed by Caribbean Co-op or its
successor in interest for damages arising out of the same
transactions or occurrences, the “ Carribean Co-op
Action ”); and
WHEREAS, a dispute
has arisen among Wyatt, Phoenix and Altama regarding the terms of
the Stock Purchase Agreement and the parties desire to resolve
their dispute on the terms and conditions herein;
NOW THEREFORE, the
parties hereby agree as follows:
1. Waiver
of Payment Rights and Future Obligations . Wyatt hereby
irrevocably waives the right to receive any payments due or past
due from Phoenix or Altama of any kind, including but not limited
to (i) payments provided for in Sections 2(c), 6(d) and
6(h) of the Stock Purchase Agreement, (ii) payments under the
Non-Competition Agreement and (iii) payments under the
Consulting Agreement. Phoenix and Altama make no claim to any
previous funds paid to or by Wyatt, including the purchase price
and post-closing adjustments for Altama stock and any payments made
under the Stock Purchase Agreement, the Non-Competition Agreement
and the Consulting Agreement. Neither Phoenix, nor Altama nor Wyatt
shall have any future obligations under the Stock Purchase
Agreement, the Non-Competition Agreement or the Consulting
Agreement. Wyatt represents and warrants that he has not assigned,
transferred, pledged, conveyed, granted a security interest or lien
with respect to his rights under the Stock Purchase Agreement or
with respect to the foregoing payment obligations and that he has
full right, title and interest to take the actions provided in this
Section 1 and that no third party consent is necessary or
required for him to do so, the failure to obtain which would be a
breach of an obligation to a third party or result in a lien or
security interest with respect to his rights under the Stock
Purchase Agreement.
2. Escrow
Release . Wyatt hereby agrees to direct the Escrow Agent to
transfer and release the Escrow Shares and anything else
constituting the Escrow Amount (as defined in the Escrow Agreement)
in such manner and at such time as Phoenix may direct. Wyatt hereby
waives any right, title or interest in or to the Escrow Amount
(including the Escrow Shares and the proceeds thereof) and
authorizes the Escrow Agent to vote the Escrow Shares at all times
in such manner as the Escrow Agent may determine in its
sole
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