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EXHIBIT 10
EIGHTH MODIFICATION OF SECOND AMENDED
AND RESTATED LOAN AGREEMENT
This Eighth Modification of Second Amended and Restated Loan Agreement
("Eighth Modification") is made and entered into the 15th day of December, 2000,
by and among BANK OF AMERICA, N.A., successor to NATIONSBANK, N.A., a national
banking association ("Bank") and SCB COMPUTER TECHNOLOGY, INC., a Tennessee
corporation, DELTA SOFTWARE SYSTEMS, INC., a Tennessee corporation, TECHNOLOGY
MANAGEMENT RESOURCES, INC., F/K/A TMR ACQUISITION, INC., a Tennessee
corporation, PARTNERS CAPITAL GROUP, a California corporation, PARTNERS
RESOURCES, INC., an Arizona corporation, SCB COMPUTER TECHNOLOGY OF ALABAMA,
INC., an Alabama corporation, and PROVEN TECHNOLOGY, INC., a Tennessee
corporation ("collectively Borrower").
R E C I T A L S
A. Borrower has previously obtained from Bank a revolving term
loan facility (the "Revolving Loan") in the principal amount of $26,250,000.00
and a term loan facility (the "Term Loan") in the principal amount of
$15,000,000.00.
B. The terms and conditions of the Revolving Loan and the Term
Loan are set forth in that certain Second Amended and Restated Loan Agreement
dated July 31, 1998, as modified by that certain First Modification of Second
Amended and Restated Loan Agreement dated September 15, 1998, and that certain
Second Modification of Second Amended and Restated Loan Agreement dated May 20,
1999, and by that certain Third Modification of Second Amended and Restated Loan
Agreement dated June 21, 1999, and by that certain Fourth Modification of Second
Amended and Restated Loan Agreement dated February 17, 2000, and by that certain
Fifth Modification of Second Amended and Restated Loan Agreement dated May 1,
2000, and as further amended by that certain Sixth Modification Second Amended
and Restated Loan Agreement dated June 15, 2000, and as further amended by that
certain Seventh Modification of Second Amended and Restated Loan Agreement dated
August 11, 2000 (hereinafter as hereafter modified or amended collectively
referred to as the "Agreement").
C. Borrower has asked Bank to renew the Revolving Loan pursuant
to the terms and conditions set forth herein and in the Agreement.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants and agreements contained herein, the intending to be legally bound
hereby, Bank and Borrower agree as follows:
1. Capitalized terms not defined herein shall have the meaning
contained in the Agreement.
2. Section 1.K. is hereby deleted in its entirety and in lieu
thereof shall read as follows:
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"K. LOANS: The Revolving Loan, the Term Loan and any
subsequent loan which states that it is subject to this Agreement."
3. Section 0.XX. of the Agreement is deleted in its entirety and
in lieu thereof shall read as follows:
"GG. APPROVED COLLATERAL SHORTFALL: The Approved
Collateral Shortfall will be as follows:
December 15, 2000 through January 31, 2001 $9,700,000.00
February 1, 2001 through April 30, 2001 $4,500,000.00
May 1, 2001 through June 15, 2001 $0.00"
4. Section 1.HH. of the Agreement is deleted in its entirety.
5. Section 2.A. of the Agreement is deleted in its entirety and
in lieu thereof shall read as follows:
"A. REVOLVING LOAN. Bank hereby agrees to make one or
more Loans to Borrower in the aggregate principal face amount of
Twenty-Three Million Five Hundred Twenty-One Thousand Eight Hundred
Twenty-Nine and No/100 Dollars ($23,521,829.00). The obligation to
repay the Revolving loan is evidenced by a Modified Revolving Note
dated December 15, 2000 (the promissory note together with any and all
renewals, extensions or rearrangements thereof being hereafter
collectively referred to as the "Revolving Note") having a maturity
date, repayment terms and interest rate as set forth in the Revolving
Note."
6. Section 2.A.(i) is amended by changing December 15, 2000 to
June 15, 2001.
7. Section 2.A.(vi) is deleted in its entirety and in lieu
thereof shall read as follows:
"(vi) REDUCTION OF THE MAXIMUM AMOUNT OF REVOLVING
LOAN. The Borrower shall pay to Bank all proceeds from the
sale of the Borrower's equity interest in IGS, the sale of
Borrowers' direct financing lease portfolio, the payment of
any income tax refund received by Borrower and the sale of any
subsidiary or the assets (other than in the ordinary course of
business) of any subsidiary of Borrower. In such case, there
will be corresponding dollar for dollar reduction in the
maximum amount of the Revolving Loan. On January 31, 2001, the
maximum amount of the Revolving Loan will be further reduced
by the greater of $5,000,000.00 or (an amount equal to the
total income tax refund for fiscal year 1998, fiscal year 1999
and fiscal year 2000, minus $1,000,000.00)."
8. Section 2.C. of the Agreement is deleted in its entirety.
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9. Section 2.D. of the Agreement is deleted in its entirety and
in lieu thereof shall read as follows:
"D. COLLATERAL. "The Notes and all obligations of
Borrower to Bank shall be secured by the Collateral described in the
Security Agreement together with the Honeywell Outsourcing Agreement
and all assets of the former XXX Consulting, Inc., that was recently
acquired by Borrower, and the Lock Box/Zero Balance Accounts, together
with a security interest in and direct assignment of all income tax
refunds to be received by Borrower."
10. Section 4.A.(i) of the Agreement is deleted in its entirety
and in lieu thereof shall read as follows:
"(i) Maintain a ratio of Funded Debt to EBITDA no
greater than 5.0 to 1.0. This will be measured at the end of
each month. EBITDA will be calculated on a rolling 12 month
basis."
11. Section 4.A.(iv) of the Agreement is deleted in its entirety
and in lieu thereof shall read as follows:
"(iv) Maintain the following minimum EBITDA for
each month as shown below:
MINIMUM
MONTH EBITDA
------------- -------------
December 2000 $1,265,000.00
January 2001 $1,533,000.00
February 2001 $1,518,000.00
March 2001 $1,895,000.00
April 2001 $1,589,000.00
May 2001 $1,500,000.00"
12. Section 4.B.(v) of the Agreement is deleted in its entirety
and in lieu thereof shall read as follows:
"(v) Furnish to Bank monthly borrowing base
certificates in form and substance acceptable to Bank. The
borrowing base certificate for the end of each month shall be
submitted by the 20th calendar day of the following month.
Borrower shall process its work in process through the end of
such month during the ten day period following the end of the
month, generate accounts receivable from such work in process
and include those accounts receivable as of the end of the
prior month in the month end borrowing base certificate.
Borrower shall also furnish to Bank accounts receivable
agings, a consolidating summary report (showing accounts
receivable, ineligible accounts receivable by category, earned
but unbilled accounts receivable, ineligible unbilled accounts
receivable by category) and a reconciliation of
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the accounts receivable aging to the general ledger, all as of
the 15th of the month, with such reports to be furnished to
Bank by the 25th of the month. Any other information that Bank
may reasonably require will also be provided in a timely
manner."
13. Section 5.A of the Agreement is deleted in its entirety and in
lieu thereof shall read as follows:
"A. CAPITAL EXPENDITURES. From November 1, 2000, through
July 31, 2001, Borrower will limit capital expenditures in each fiscal
quarter to an amount not to exceed its total depreciation expense in
that fiscal quarter."
14. Bank waives the following:
(a) The failure of the Borrower to maintain its minimum
EBITDA for the period ending August 31, 2000.
(b) The failure of the Borrower on August 31, September
30 and October 31, 2000 to reduce the maximum outstanding balance of
the Revolving Loan to an amount less than or equal to Borrowing Base.
15. Borrower shall pay all costs incidental to this Eighth
Modification including but not limited to the fees and expenses of Bank's
counsel.
16. In consideration for the waiver of certain defaults, the
modification of the Agreement and the renewal of the Revolving Loan, Borrower
hereby agrees that Bank shall earn a fee of $400,000.00 upon the execution of
this Eighth Modification. This fee shall be payable on or before January 15,
2001 and the obligation to pay shall be secured by the Collateral. Bank agrees
that it will waive and refund $300,000.00 of the fee if all obligations owed to
Bank are paid on or before January 31, 2001. If all obligations are not paid on
or before January 31, 2001, Bank agrees that it will waive and refund
$200,000.00 of the fee if, prior to June 15, 2001, Borrower has permanently
reduced the maximum amount of the Revolving Loan to a balance of less than
$3,521,819.00, no Default has occurred under the Agreement and the Balance of
the Revolving Loan is less than the Borrowing Base, computed with the Approved
Collateral Shortfall at $0.00. Borrower shall deliver to Bank and amended and
restated warrant that shall replace the warrant received pursuant to the Sixth
Modification. The warrant price and the exercise period as defined in the common
stock purchase warrant will be deleted and in lieu thereof shall read as
follows:
"Price. The Holder shall be entitled to subscribe for and purchase the
number of shares of Common Stock set forth above at a purchase price
per share (the "Price") payable in cash to the Company. As used herein,
the term "Price" shall mean, with respect to the Common Stock, the
average of the reported closing sale prices per share during the ten
(10) consecutive trading days ending on December 29, 2000, on the
over-the-counter market as quoted on the OTC Bulletin Board.
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Exercise. The Holder may exercise this Warrant, in whole or in part, at
any time and from time to time beginning on January 1, 2001, and ending
on January 1, 2004 (the Expiration Date")."
17. The Addendum Borrowing Base Agreement attached as Exhibit A to
the Sixth Modification is deleted in its entirety and in lieu thereof shall be
replaced with the Addendum Borrowing Base Agreement attached as Exhibit A to
this Eighth Modification.
18. Borrower has previously represented to Bank that it has
entered into agreements to sell the assets of Global Technologies, Inc. and
Proven Technology, Inc. in transactions that will result in no net proceeds to
Borrower. Bank consents to such sales and agrees to release its liens on the
assets of those companies.
19. Borrower warrants and represents that (a) the Loan Documents
are valid, binding and enforceable against the Borrower according to their
terms; (b) all warranties and representations made by Borrower in the Loan
Documents are hereby again warranted and represented to be true as of the date
hereof, except with regard to matters expressed only as of a specific time or
which have been supplemented or superseded by disclosures to Bank in writing and
(c) no default presently exists under the Loan Documents. Borrower further
acknowledges that Borrower's obligations evidenced by the Loan Documents are not
subject to any counterclaim, defense or right of set off and Borrower does
hereby release Bank from any claim, known or unknown, that Borrower may have
against Bank as of the execution. Borrower, on its own behalf and on behalf of
its predecessors, successors, heirs and assigns (collectively, the "Releasing
Parties"), hereby acknowledge and stipulate that as of the date of this Eighth
Modification, none of the Releasing Parties has any claims or causes of action
of any kind whatsoever against Bank or any of its officers, directors,
employees, agents, attorneys, or representatives, or against any of their
respective predecessors, successors, or assigns. Each of the Releasing Parties
hereby forever releases, remises, and discharges Bank and all of its officers,
directors, employees, agents, attorneys and representatives, and all of its
respective predecessors, successors, and assigns, from any and all claims,
causes of action, demands, and liabilities of any kind whatsoever, whether
direct or indirect, fixed or contingent, liquidated or nonliquidated, disputed
or undisputed, known or unknown, which any of the Releasing Parties has or may
acquire in the future relating in any way to any event, circumstance, action, or
failure to act from the beginning of time through the date of this Seventh
Modification.
20. As amended hereby, the Agreement remains in full effect, and
all agreements among the parties with respect to the subject hereof are
represented fully in this Eighth Modification and the other written documents
among the parties. The provisions of the Agreement regarding the arbitration of
disputes and other general matters also govern this Eighth Modification. The
validity, construction and enforcement hereof shall be determined according to
the substantive laws of the State of Tennessee.
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IN WITNESS WHEREOF, the parties have executed this Eighth Modification
to be effective the day and year first above written.
BANK OF AMERICA, N.A., SUCCESSOR TO PARTNERS CAPITAL GROUP
NATIONSBANK, N.A.
By: /s/ T. Xxxxx Xxxx
By: /s/ Xxxxx X. Harvard Its: President and CEO
Its: Assistant Vice President
By: /s/ Xxxxxx X. Xxxxxxx
Its: Secretary
SCB COMPUTER TECHNOLOGY, INC. PARTNERS RESOURCES, INC.
By: /s/ T. Xxxxx Xxxx By: /s/ T. Xxxxx Xxxx
Its: President and CEO Its: President and CEO
By: /s/ Xxxxxx X. Xxxxxxx By: /s/ Xxxxxx X. Xxxxxxx
Its: Secretary Its: Secretary
DELTA SOFTWARE SYSTEMS, INC. PROVEN TECHNOLOGY, INC.
By: /s/ T. Xxxxx Xxxx By: /s/ T. Xxxxx Xxxx
Its: President and CEO Its: President and CEO
By: /s/ Xxxxxx X. Xxxxxxx By: /s/ Xxxxxx X. Xxxxxxx
Its: Secretary Its: Secretary
TECHNOLOGY MANAGEMENT SCB COMPUTER TECHNOLOGY OF
RESOURCES, INC. ALABAMA , INC.
F/K/A TMR ACQUISITION, INC.
By: /s/ T. Xxxxx Xxxx
By: /s/ T. Xxxxx Xxxx Its: President and CEO
Its: President and CEO
By: /s/ Xxxxxx X. Xxxxxxx
By: /s/ Xxxxxx X. Xxxxxxx Its: Secretary
Its: Secretary
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THIS WARRANT HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR ANY APPLICABLE STATE SECURITIES LAW. THIS
WARRANT MAY NOT BE SOLD, TRANSFERRED, ASSIGNED OR OTHERWISE DISPOSED OF UNLESS
AND UNTIL (1) A REGISTRATION STATEMENT UNDER THE SECURITIES ACT AND SUCH
APPLICABLE STATE SECURITIES LAWS SHALL HAVE BECOME EFFECTIVE WITH REGARD
THERETO, OR (2) THE COMPANY SHALL HAVE RECEIVED A WRITTEN OPINION OF LEGAL
COUNSEL, SATISFACTORY IN FORM AND SUBSTANCE TO THE COMPANY, TO THE EFFECT THAT
SUCH SALE, TRANSFER, ASSIGNMENT OR OTHER DISPOSITION DOES NOT VIOLATE THE
SECURITIES ACT OR SUCH APPLICABLE STATE SECURITIES LAWS.
SCB COMPUTER TECHNOLOGY, INC.
AMENDED AND RESTATED COMMON STOCK PURCHASE WARRANT
This Amended and Restated Common Stock Purchase Warrant (this "Warrant")
is issued as of December 15, 2000, by SCB COMPUTER TECHNOLOGY, INC., a Tennessee
corporation (the "Company"), to BANK OF AMERICA, N.A. (hereinafter together with
its registered successors and assigns, the "Holder").
Introduction. The Company issued that certain Common Stock Purchase
Warrant dated as of June 15, 2000, to the Holder entitling the Holder to
purchase 250,000 shares of common stock, par value $.01 per share, of the
Company ("Common Stock"), on the terms and subject to the conditions stated
therein (the "Original Warrant"). The Company and the Holder now desire to amend
and restated the Original Warrant as described herein. In consideration of the
foregoing, and for certain good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Original Warrant is hereby
amended and restated as follows:
This certifies that, for value received, the Holder is entitled, subject
to the terms and conditions hereinafter set forth, to purchase from the Company
TWO HUNDRED FIFTY THOUSAND (250,000) shares of Common Stock at a purchase price
per share determined as set forth in Section 1 hereof.
This Warrant is subject to the following terms and conditions:
1. Warrant Price and Exercise.
(a) Price. The Holder shall be entitled to subscribe for and
purchase the number of shares of Common Stock set forth above at a purchase
price per share (the "Price") payable in cash to the Company. As used herein,
the term "Price" shall mean, with respect to the Common Stock, the average of
the reported closing sale prices per share during the ten (10) consecutive
trading days ending on December 29, 2000, in the over-the-counter market as
quoted on the OTC Bulletin Board.
(b) Exercise. The Holder may exercise this Warrant, in whole or in
part, at any time and from time to time beginning on January 1, 2001, and ending
on January 1, 2004 (the "Expiration Date"). Upon delivery of this Warrant duly
executed, together with payment in cash of the Price for the shares of Common
Stock thereby purchased, at the principal office of the Company or at such other
address as the Company may designate by notice in writing to the Holder, the
Holder shall be entitled to receive a certificate or certificates for the shares
of Common Stock so purchased. All shares of Common Stock issued upon the
exercise of this
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Warrant shall, upon issuance, be duly authorized, validly issued, fully paid and
non-assessable, and shall be registered under all applicable securities laws. In
case of any partial exercise of this Warrant, the Company shall execute and
deliver to the Holder a new Warrant of like tenor and date for the balance of
the shares of Common Stock purchasable hereunder. Certificates for the shares of
Common Stock purchased in accordance with the above provisions shall be
delivered to the Holder promptly after exercise of the purchase rights
represented by this Warrant. The exercise of this Warrant shall be deemed
effective on the day on which the Holder surrenders this Warrant and pays the
Price for the shares of Common Stock purchased hereunder to the Company and
satisfies all of the other requirements of this Warrant. Upon such exercise, the
Holder shall be deemed a shareholder of record of those shares of Common Stock
for which this Warrant has been exercised with all rights of a shareholder,
including, without limitation, all voting rights with respect to such shares and
all rights to receive any dividends with respect to such shares.
2. Adjustments. If this Warrant is outstanding, the Price and the number
of shares of Common Stock purchasable hereunder shall be subject to adjustment
from time to time in accordance with the following provisions:
(a) In case the Company shall at any time subdivide the
outstanding shares of Common Stock, the Price in effect immediately prior to
such subdivision shall be proportionately decreased, and in case the Company
shall at any time combine the outstanding shares of Common Stock, the Price in
effect immediately prior to such combination shall be proportionately increased,
effective from and after the record date of such subdivision or combination, as
the case may be.
(b) Upon any adjustment in the Price pursuant to Section 2(a)
hereof, the Holder shall thereafter be entitled to purchase, at the adjusted
Price, the number of shares of Common Stock, calculated to the nearest full
share, obtained by (i) multiplying the number of shares of Common Stock
purchasable hereunder immediately prior to such adjustment by the Price in
effect immediately prior to such adjustment, and (ii) dividing the product
thereof by the Price resulting from such adjustment.
(c) In the event of the issuance of additional shares of Common
Stock of the Company as a dividend on the Common Stock, from and after the
record date for the determination of shareholders entitled to receive such
dividend, the Holder shall be entitled to purchase the number of shares of
Common Stock, calculated to the nearest full share, obtained by (i) multiplying
the number of shares of Common Stock purchasable hereunder immediately prior to
said record date by the percentage which the number of shares constituting any
such dividend is of the total number of shares of Common Stock outstanding
immediately prior to said record date plus the number of shares of Common Stock
issuable upon conversion of the outstanding convertible securities or upon
exercise of any outstanding convertible securities or upon exercise of any
outstanding warrants, options, or rights (including those with respect to
convertible securities) and (ii) adding the result so obtained to the number of
shares of Common Stock purchasable hereunder immediately prior to said record
date. Upon each adjustment pursuant to this Section 2(c), the Price in effect
immediately prior to such adjustment shall be reduced to an amount determined by
dividing (i) the product obtained by multiplying such Price by the number of
shares of Common Stock purchasable hereunder immediately prior to such
adjustment by (ii) the number of shares of Common Stock purchasable hereunder
immediately following such adjustment.
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3. Reorganization, Reclassification, Consolidation, or Merger. If at any
time while this Warrant is outstanding there shall be any reorganization or
reclassification of the Common Stock of the Company (other than a subdivision or
combination of shares provided for in Section 2(a) hereof), or any consolidation
or merger of the Company with another corporation, the Holder shall thereafter
be entitled to receive, during the term hereof and upon payment of the Price,
the number of shares of Common Stock or other securities or property of the
Company or of the successor corporation resulting from such consolidation or
merger, as the case may be, to which such Holder would have been entitled upon
such reorganization, reclassification, consolidation, or merger if this Warrant
had been exercised immediately prior to such reorganization, reclassification,
consolidation, or merger; and in any case appropriate adjustment (as determined
by agreement of the Holder and the Board of Directors of the Company) shall be
made in the application of the provisions herein set forth with respect to the
rights and interest thereafter of the Holder to the end that the provisions set
forth herein (including the adjustment of the Price and the number of shares
issuable upon the exercise of this Warrant) shall thereafter be applicable, as
near as reasonably may be, in relation to any shares or other property
thereafter deliverable upon the exercise thereof.
4. Notice of Adjustments. Upon any adjustment of the Price and any
increase or decrease in the number of shares of Common Stock purchasable upon
the exercise of this Warrant, then, and in each such case, the Company, within
thirty (30) days after the Holder's request, shall give written notice thereof
to the Holder at the address of such Holder as shown on the books of the
Company, which notice shall state the Price as adjusted and the increased or
decreased number of shares purchasable upon the exercise of this Warrant,
setting forth in reasonable detail the method of calculation of each.
5. Charges, Taxes and Expenses. The issuance of certificates for shares
of Common Stock upon any exercise of this Warrant shall be made without charge
to the Holder for any stock transfer tax or other expense imposed by the Company
or its transfer agent in respect to the issuance of such certificates, all of
which taxes and expenses shall be paid by the Company, and such certificates
shall be issued in the name of, or in such name or names as may be directed by,
the Holder; provided, however, that in the event that certificates for shares of
Common Stock are to be issued in a name other than the name of the Holder, this
Warrant when surrendered for exercise shall be accompanied by an instrument of
transfer in form satisfactory to the Company, duly executed by the Holder in
person or by an attorney duly authorized in writing, and the Holder shall pay
all stock transfer taxes payable upon issuance of such stock certificate.
6. Certain Obligations of the Company. The Company shall not increase the
par value of the shares of Common Stock issuable upon exercise of this Warrant
so that it exceeds the then prevailing Price hereunder. Before taking any action
that would cause an adjustment reducing the Price below the then par value of
the shares of Common Stock issuable upon the exercise hereof, the Company shall
take any corporate action which may, in the opinion of its counsel, be necessary
in order that the Company may validly and legally issue fully paid and
non-assessable shares of Common Stock at the Price as so adjusted.
7. Miscellaneous.
(a) The Company shall at all times reserve and keep available,
solely for the purpose of issue upon the exercise hereof, a sufficient number of
shares of Common Stock to permit the exercise hereof in full.
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(b) The terms of this Warrant shall be binding upon and shall
inure to the benefit of any successors or assigns of the Company and of the
Holder.
(c) No Holder, as such, shall be entitled to vote or receive
dividends or be deemed to be a shareholder of the Company for any purpose.
(d) Except as otherwise provided herein, this Warrant and all
rights hereunder are transferable by the Holder in person or by duly authorized
attorney on the books of the Company upon surrender of this Warrant, properly
endorsed, to the Company. The Company may deem and treat the Holder at any time
as the absolute owner hereof for all purposes and shall not be affected by any
notice to the contrary.
(e) Notwithstanding any provision hereof to the contrary, this
Warrant may not be sold, transferred, assigned or otherwise disposed of unless
and until (1) a registration statement under the Securities Act and such
applicable state securities laws shall have become effective with regard
thereto, or (2) the Company shall have received a written opinion of legal
counsel, satisfactory in form and substance to the Company, to the effect that
such sale, transfer, assignment or other disposition does not violate the
Securities Act or such applicable state securities laws.
(f) This Warrant and the rights and obligations of the parties
hereunder shall be governed by, construed under, and enforced in accordance with
the laws of the State of Tennessee without regard to the conflict-of-law
principles thereof.
IN WITNESS WHEREOF, the Company has caused this Warrant to be signed by
its duly authorized officer as of December 15, 2000.
SCB COMPUTER TECHNOLOGY, INC.
By: /s/ T. Xxxxx Xxxx
T. Xxxxx Xxxx
President and Chief Executive Officer
By: /s/ Xxxxxx X. Xxxxxxx
Xxxxxx X. Xxxxxxx
Secretary
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