EXHIBIT 10.21
STOCK PURCHASE AGREEMENT
BY AND BETWEEN
CROW FAMILY PARTNERSHIP, L.P. AND THE XXXXXXXX GROUP, INC.
This Stock Purchase Agreement (the "Agreement"), dated as of January 10,
1997, is entered into by and between Crow Family Partnership, L.P., a Texas
limited partnership ("Buyer"), and The Xxxxxxxx Group, Inc., a Texas
corporation ("Seller").
WITNESSETH:
WHEREAS, on the terms and subject to the conditions set forth herein,
Buyer desires to purchase from Seller and Seller desires to sell to Buyer, a
total of 35,000 shares of the Class A Voting Common Stock, no par value, of
Seller, at a purchase price of $23.83 per Share;
NOW, THEREFORE, in consideration of the mutual agreements hereinafter
set forth, the parties hereto agree as follows:
1. PURCHASE OF SHARES. On the terms and subject to the conditions set
forth herein and in reliance upon the representations and warranties of
Seller in Section 3, Buyer hereby agrees to purchase from Seller, and Seller
hereby agrees to sell and transfer to Buyer, at the Closing (as defined
below) 35,000 shares (the "Shares") of Class A Voting Common Stock, no par
value, of Seller for an aggregate purchase price of $834,050 ($23.83 per
share).
2. CLOSING AND DELIVERY. The closing of the purchase and sale of the
Shares (the "Closing") shall take place at 2 p.m., Dallas time, on January
10, 1997, at the offices of Seller, or at such other time or place as may be
mutually agreed upon by Buyer and Seller. At the Closing, Buyer will deliver
to Seller $834,050 in same-day funds and Seller will deliver to Buyer a
certificate for the Shares, duly executed and registered in the name of Buyer.
3. REPRESENTATIONS AND WARRANTIES OF SELLER. Seller hereby represents
and warrants to Buyer that:
(a) CORPORATE ORGANIZATION AND STANDING: POWER AND AUTHORITY.
Seller is a corporation duly organized, validly existing and in good standing
under the laws of the State of Texas, and is duly qualified to do business
and is in good standing as a foreign corporation in all other jurisdictions
where Seller owns or leases property or where the nature of Seller's business
requires such qualification. Seller has full power and authority to own its
properties, to carry on its business and to hold under lease the properties
it holds under lease. Seller has full power and authority to enter into this
Agreement and to perform the transactions contemplated hereby. Accurate and
complete copies of the Articles of Incorporation and By-laws of Seller have
been delivered to Buyer.
(b) CAPITAL STOCK. The authorized capital stock of Seller
consists of 17,500,000 shares, of which (a) 12,500,000 shares are Common
Stock, no par value, of which (i) 12,000,000 Shares are classified as Class A
Voting Common Stock ("Class A Common Stock") and (ii) 500,000 Shares are
classified as Class B Non-Voting Common Stock ("Class B Common Stock"), and
(b) 5,000,000 Shares are preferred stock, no par value. The relative rights,
preferences and limitations of the Class A Common Stock and the Class B Comon
Stock are identical, except that the Class B Common Stock does not have
voting rights. On the date hereof, 926,071 shares of Class A Common Stock
(excluding treasury shares) and 3,167 shares of Class B Common Stock are
issued and outstanding, and are owned by the persons and entities in the
numbers identified in Schedule 3(b). No shares of preferred stock are
outstanding. Except as set forth in Schedule 3(b), there are no outstanding
subscriptions, options, warrants, rights, calls, commitments, preemptive
rights, rights of first refusal or similar rights, conversion rights, rights
of exchange, plans or other agreements of any character providing for the
purchase, issuance, transfer or sale of any shares of the capital stock of
the Company, other than as contemplated by this Agreement.
(c) AUTHORIZATION AND ENFORCEABILITY. Prior to the Closing, all
corporate action on the part of Seller, its directors and Shareholders
necessary for the authorization, execution, delivery and performance by
Seller of this Agreement and the consummation of the transactions
contemplated hereby will have been taken. This Agreement is a legal, valid
and binding obligation of Seller and enforceable against Seller in accordance
with its terms, except as limited by bankruptcy, insolvency or other laws
affecting creditors, rights generally or by the availability of equitable
remedies.
(d) VALID ISSUANCE OF CAPITAL STOCK.
(i) The Shares, when issued, sold and delivered in
accordance with the provisions of this Agreement, for the consideration
expressed herein, will be duly and validly issued, fully paid and
non-assessable and, assuming the accuracy of the representation and warranty
of Buyer set forth in Section 4(d), will be issued in compliance with all
applicable federal and state securities laws. The Shares, when sold and
delivered to Buyer in accordance with the provisions of this Agreement, will
not have been issued in violation of any contractual or statutory preemptive
rights.
(ii) The outstanding shares of Common Stock of Seller have
been duly and validly authorized, issued and delivered, and are validly
outstanding, fully paid and non-assessable and have been issued in compliance
with all applicable federal and state securities laws. Immediately after the
issuance and sale of the Shares to Buyer and assuming the closing of the
transaction with
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Antinori Software, Inc., as disclosed on Schedule 3(b), the ownership of the
capital stock of the Company shall be as listed on Schedule 3(d).
(e) TITLE TO AND CONDITION OF ASSETS. Seller has good and
marketable title to all property reflected on the Balance Sheet (as
hereinafter defined) (except property sold or otherwise disposed of in the
ordinary course of business after November 30, 1996), free and clear of all
mortgages, liens, security interests, pledges, charges, claims, encumbrances
and restrictions of any nature whatsoever, except as described on Schedule
3(e). All tangible assets (whether owned or leased) utilized by Seller in
its business are in good operating condition and repair, subject to normal
wear and tear. Seller has good and marketable title to all of the assets
necessary to conduct its business as presently conducted or as proposed to be
conducted.
(f) NO INVESTMENTS. Except as set forth in Schedule 3(f), the
Company does not own or control, directly or indirectly, any capital stock or
other equity, debt, ownership or proprietary interest in any corporation,
partnership, association, trust, joint venture or other entity.
(g) FINANCIAL STATEMENTS. Copies of the balance sheet of Seller
as of November 30, 1996 (the "Balance Sheet"), the related statement of
income for the 10 months then ended, and Seller's audited financial
statements as of and for the years ending January 31, 1996 and January 31,
1995 (collectively, the "Financial Statements"), have been delivered to
Buyer. The Financial Statements have been prepared in conformity with
generally accepted accounting principles ("GAAP") applied on a basis
consistent with prior periods, except as may be otherwise expressly
indicated, and present fairly the financial condition of Seller as of the
dates and the results of operations of Seller for the periods indicated.
(h) LIABILITIES. Seller has no material liabilities or
obligations of any nature, whether absolute, accrued, contingent or otherwise
and whether due or to become due, that are not reflected on the Balance Sheet
or in the notes thereto, except for liabilities incurred since such date in
the ordinary course of business.
(i) PROPRIETARY RIGHTS. Seller owns or has the unrestricted right
to use all proprietary rights (including patents, trademarks, service marks,
tradenames, software and applications therefor or licenses thereto) used in
its business. To the best of Seller's knowledge, all such proprietary rights
are in good standing and uncontested and do not violate or infringe on the
proprietary rights of any third party. To the best of Seller's knowledge,
there is no claim, action, proceeding or investigation pending or threatened
against Seller with respect to any of such proprietary rights. Seller has no
knowledge that any third party is infringing any of such proprietary rights.
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(j) TAXES. Seller has filed all tax reports and returns
(including, without limitation, all federal, state and local income tax,
franchise tax, gross receipts, sales tax, and real and personal property tax
returns) required to be filed and has either paid all taxes and other charges
indicated due on the basis of such returns and reports, or has made adequate
provision for the payment thereof, and the assessment of any material amount
of additional taxes in excess of those paid and reported is not reasonably
expected. Seller has withheld all taxes required to be withheld by it or by
any federal, state, local or foreign taxing authority. There are no claims
asserted for, or, to the best of Seller's knowledge, pending questions of a
material nature relating to, taxes or assessments against Seller. The
reserves for taxes reflected on the Balance Sheet are adequate in amount for
the payment of all liabilities for all taxes (whether or not disputed) of
Seller accrued through the date of such Balance Sheet.
(k) CONTRACTS. Except as set forth on Schedule 3(k), to the best
of Seller's knowledge, all material contracts and leases and other agreements
to which Seller is a party or by which it or its assets are bound are valid
and in full force and effect. Except as set forth on Schedule 3(k), Seller
is not in default, and has not been notified by any other party that it is in
default, under any material contract, lease or agreement, and no party with
whom Seller has an agreement which is of material importance to Seller is in
default thereunder.
(l) LITIGATION. There are no actions, suits, proceedings and
investigations pending or, to the best of Seller's knowledge, threatened
against or affecting Seller, or any property or right of Seller. Seller is
not aware of any fact which would provide a valid basis for any
investigation, action, suit, proceeding or claim which could, either alone or
in the aggregate, materially and adversely affect the condition (financial or
otherwise) of Seller.
(m) COMPLIANCE WITH LAWS. Seller is not in default in any respect
under any law, ordinance, requirement, regulation, rule or order applicable
to its business the violation of which might materially and adversely affect
Seller. Seller is not subject to any continuing court or administrative
order, writ, injunction or decree applicable specifically to it or to its
business, property or employees, and is not in default with respect to any
order, writ, injunction or decree of any court or federal, state, municipal
or other governmental department, commission, board, agency or
instrumentality, domestic or foreign, to such an extent that any default
would or could have a materially adverse effect on the condition (financial
or otherwise) of Seller.
(n) ABSENCE OF CONFLICTS. Neither the execution and delivery of
this Agreement nor the consummation of the transactions provided for herein
or the fulfillment by Seller of the terms hereof will (a) conflict with or
result in a breach of any provision of Seller's Articles of Incorporation or
By-laws,
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(b) result in a conflict or default or give rise to any right of termination,
cancellation or acceleration under any of the terms, conditions or provisions
of any note, bond, mortgage, indenture, license, agreement or other
instrument or obligation to which Seller is a party or by which Seller is
bound, (c) violate any order, writ, injunction, decree, statute, rule or
regulation applicable to Seller or any of the material properties or assets
of Seller or (d) terminate or adversely affect any material permit, license
or authorization of any governmental authorities used or required by Seller.
(o) GOVERNMENTAL CONSENTS AND REGULATIONS. No consent, approval
or other action by any local, state, federal or foreign governmental
authority is required in connection with the execution and delivery by Seller
of this Agreement and the consummation of the transactions contemplated
hereby.
(p) LICENSES AND PERMITS. Seller has all licenses, permits and
other authorizations of governmental authorities, domestic and foreign,
necessary in the conduct of its business. Seller has not received any notice
(nor, to the best of Seller's knowledge, does Seller have any reason to
believe) that revocation is being considered with respect to any of such
licenses, permits or authorizations.
(q) OFFERING. Assuming the accuracy of the representations of
Buyer set forth in Section 4(d), the offer and sale of the Shares are exempt
from the registration requirements of the Securities Act of 1933, as amended
(the "Securities Act"), and the Texas securities laws.
(r) NO MATERIAL ADVERSE CHANGE. Since November 30, 1996, there
has not been any material adverse change in the condition (financial or
otherwise) of Seller.
4. REPRESENTATIONS AND WARRANTIES OF BUYER.
(a) ORGANIZATION. Buyer is a Texas limited partnership duly
organized, validly existing and in good standing under the laws of the State
of Texas. Buyer has full power and authority to carry on its business as it
is now being conducted and to own the properties and assets it now owns.
(b) AUTHORIZATION. Buyer has full power and authority to enter
into this Agreement and to carry out the transactions contemplated hereby.
Buyer has taken all action required by law, its Certificate of Limited
Partnership or otherwise to authorize the execution and delivery of this
Agreement and the transactions contemplated hereby. This Agreement and all
other agreements delivered hereunder are valid and binding agreements of
Buyer enforceable against Buyer in accordance with their terms, except as
limited by bankruptcy, insolvency or other laws affecting creditors' rights
generally or by the availability of equitable remedies.
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(c) BROKERS AND FINDERS. Neither Buyer nor any of its partners or
representatives has employed any broker or finder or incurred any liability
for any brokerage fees, commissions or finders' fees in connection with the
transactions contemplated by this Agreement.
(d) INVESTMENT. Buyer is acquiring the Shares solely for its own
account and not with a view to a sale or distribution thereof in violation of
any securities laws. Buyer acknowledges that (i) it is an "accredited
investor" as such term if defined in Regulation D promulgated under the
Securities Act, (ii) it has been granted access to all information that it
considers necessary or advisable to enable it to make an informed decision
concerning an investment in the Shares (including regarding the proposed
transaction with Antinori Software, Inc. referenced above), (iii) it
understands that the Shares have not been registered under the Securities Act
or the securities act of any state, (iv) as a result thereof, there is no
market for the Shares, with Buyer assuming the entire risk of investment
therein, and (v) there may be restrictive legends typed or otherwise printed
on the certificates representing the Shares.
5. FINANCIAL STATEMENTS AND REPORTING.
(a) Seller will maintain, and cause each of its subsidiaries to
maintain, a system of accounting established and administered in accordance
with GAAP and all financial statements or information delivered under
subsection (b) will be prepared in accordance with GAAP.
(b) Seller will deliver to Buyer:
(i) as soon as practicable after the end of each fiscal
year of Seller and in any event within 120 days thereafter, a balance sheet
of Seller as at the end of such year, and a statement of income of Seller for
such fiscal year, prepared in accordance with GAAP and setting forth in each
case in comparative form the figures for the previous fiscal year, all in
reasonable detail and certified by an independent public accounting firm
selected by Seller; and
(ii) as soon as practicable after the end of each fiscal
quarter of Seller, and in any event within 45 business days thereafter, a
balance sheet of Seller as of the end of such quarter, and a statement of
income of Seller for such quarter and for the current fiscal year to date,
prepared in accordance with GAAP, subject to changes resulting from normal
year-end audit adjustments, all in reasonable detail.
6. CONDITIONS OF BUYER'S OBLIGATIONS TO CLOSE. The obligation of
Buyer to purchase the Shares at the Closing is subject to the fulfillment on
or before the Closing of the following:
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(a) REPRESENTATIONS AND WARRANTIES; PERFORMANCE. (i) The
representations and warranties set forth in Section 3 hereof shall be
accurate as of the Closing Date as if made on the Closing Date; (ii) Seller
shall have performed all obligations and complied with all covenants and
agreements required to be performed or to be complied with by it under this
Agreement on or prior to the Closing Date; and (iii) Buyer shall have
received a certificate dated the Closing Date and signed by an officer of
Seller to all such effects.
(b) NO MATERIAL ADVERSE CHANGE. There shall have been no material
adverse change in the condition (financial or otherwise) of Seller from the
date of the Balance Sheet through the Closing.
7. CONDITIONS OF SELLER'S OBLIGATIONS TO CLOSE. The obligation of
Seller to sell the Shares at the Closing is subject to the fulfillment on or
before the Closing of the following condition: the representations and
warranties set forth in Section 4 hereof shall be accurate as of the Closing
Date as if made on the Closing Date and Seller shall have received a
certificate dated the Closing Date and signed by the general partner of Buyer
to such effect.
8. RIGHT OF FIRST REFUSAL.
(a) If Buyer proposes to sell, pledge, exchange or otherwise
dispose of any of its Shares, whether for cash or other consideration, Buyer
shall promptly deliver to the Secretary of Seller a written notice
(hereinafter referred to as the "Notice"). Such Notice shall include a true
and complete copy of a written bona fide offer for the purchase or transfer
of Buyer's Shares, the name and address of the proposed purchaser or
transferee and the proposed purchase price, terms, and conditions of the
transfer, which must include a sufficient period prior to consummation of
such purchase or transfer for the option period contemplated by subsection
(b) below to expire (the "Bona Fide Offer").
(b) Seller shall have an option to purchase all, and not less than
all, of the Shares of Buyer subject to the Bona Fide Offer at the same price
and upon substantially the same terms and conditions as set forth in the Bona
Fide Offer by giving written notice of acceptance to Buyer within thirty (30)
days after receipt of the Notice.
(c) Upon the refusal or failure of Seller to exercise its option
to purchase the Shares in accordance with subsection (b) above, such Shares
may be sold upon the terms and conditions set forth in the Bona Fide Offer,
provided that the notice of the closing thereunder shall be given to Seller
immediately after the occurrence thereof and provided further that the
purchaser of the Shares under the Bona Fide Offer and the purchaser's spouse,
if such Shares were sold to an individual with a spouse, shall, as a
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condition precedent to such purchase, agree to be bound by all terms and
provisions of this Section 8.
(d) The right of first refusal granted to Seller hereunder shall
not apply to any transfer of Shares by Buyer to any Affiliate of Buyer. For
purposes of this Section 8, an "Affiliate of Buyer" shall mean any person,
corporation, partnership or other entity which controls Buyer or is
controlled by Buyer or is under common control of or with Buyer; provided,
however, any Affiliate of Buyer shall continue to be subject to the right of
first refusal granted Seller under this Section 8.
(e) The right of first refusal granted to Seller under this
Section 8 shall automatically terminate upon the occurrence of any of the
following events:
(i) The bankruptcy or insolvency of Seller;
(ii) The closing of a public offering of securities of
Seller pursuant to a registration statement declared effective under the
Securities Act of 1933, as amended; or
(iii) The closing of the sale of all or substantially all of
the assets of Seller, the consolidation or merger of Seller in which Seller
is not the surviving corporation, or the complete liquidation of Seller in
compliance with the Texas Business Corporation Act.
9. RIGHT OF INCLUSION. Seller represents to Buyer that as of the date
of this Agreement Seller has not granted to any party rights to require
Seller to register under the Securities Act of 1933, as amended (the "Act"),
securities issued by Seller ("registration rights"). Buyer acknowledges that
the contemplated transaction with Antinori Software, Inc., as disclosed on
Schedule 3(b), likely will involve the grant of registration rights to one or
more of the former shareholders of Antinori Software, Inc.
Seller hereby grants Buyer the right to have included, in each
registration under the Act of common stock (of any class) of Seller resulting
from the exercise of contractual registration rights granted to such former
shareholders, or to any other party, Buyer's proportionate share of such
common stock; provided, however, that in order to exercise the foregoing
right Buyer must first agree in writing to abide by all terms and conditions
of such contractual registration rights regarding the inclusion of shares in
such registration, so that to the greatest extent practical Buyer's foregoing
right of inclusion is PARI PASSU with, but not superior or subordinate to,
provisions regarding the inclusion of shares in the exercise of such
contractual registration rights. Without limiting the foregoing, such terms
and conditions may include provisions regarding Buyer's agreement to enter
into an underwriting agreement in respect of any underwritten offering of
Buyer's shares, indemnify the underwriters thereof, accept the
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exclusion of shares previously proposed to be included in any such
registration based on an underwriter's or underwriters' opinion that the
initially proposed number of shares to be included will adversely affect the
success of the offering thereof (i.e., "underwriters' cutbacks"), and any and
all other terms and conditions, whether or not customary, obligating
participants in any such registration (e.g., "lock-up" provisions, provisions
regarding payment of the expenses of registration, and market "standoff" and
"blackout" provisions, etc.). Notwithstanding anything to the contrary in
this Agreement, (a) in no event shall this Section 9 be construed to grant
Buyer the right to unilaterally exercise "demand," "piggyback" or other
registration rights and (b) the foregoing right of inclusion shall expire as
to any shares of common stock issued by Seller when such shares are eligible
for sale under Rule 144 promulgated under the Act.
For purposes of this Section 9, Buyer's "proportionate share" shall be
the number of shares of Seller's common stock (of any class) then held by
Buyer multiplied by a fraction, the numerator of which is the total number
shares of such common stock proposed to then be registered under the Act and
the denominator is the number of shares of such common stock then issued and
outstanding or otherwise contractually subject to issuance (i.e., calculated
on a fully-diluted basis).
10. MISCELLANEOUS.
(a) ENTIRE AGREEMENT; CONSTRUCTION. This Agreement constitutes
the entire agreement between Buyer and Seller and supersedes any prior
understandings or agreements, written or oral, that relate to the subject
matter hereof. All representations, warranties and covenants of Buyer and
Seller contained herein or in any document delivered hereunder shall survive
the Closing and remain in full force and effect thereafter; provided,
however, that Seller's representations and warranties set forth in
subsections (e) through (r) , inclusive, of Section 3 shall survive the
Closing and thereafter remain in full force and effect only until the second
anniversary of the Closing.
This Agreement may not be amended except in writing signed by both Buyer
and Seller.
(b) EXPENSES. The parties agree that all fees and expenses
incurred by them in connection with this Agreement and the transactions
contemplated hereby shall be borne by the party incurring such fees and
expenses, including, without limitation, all fees of counsel and accountants.
(c) NOTICES. All notices, requests, demands and other
communications required or permitted hereunder shall be in writing and shall
be deemed to have been duly given if personally delivered, sent by facsimile
transmission, or mailed by certified or registered mail with postage prepaid:
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(a) if to Seller, to:
X.X. Xxxxxxxx
Chief Executive Officer
The Xxxxxxxx Group, Inc.
00000 Xxxxx Xxxxxx Xxxxxxx, Xxxxx 0000
Xxxxxx, XX 00000
or to such other person or address as Seller shall furnish to Buyer in
writing:
(b) if to Buyer, to:
Xx. Xxxxx X. Xxxxxxxxxx
3200 Xxxxxxxx Xxxx Center
0000 Xxxx Xxxxxx
Xxxxxx, XX 00000
or to such other person or address as Buyer shall furnish to Seller in
writing.
(d) GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws of the State of Texas.
(e) HEADINGS. The headings of the sections and subsections of
this Agreement are inserted for convenience only and shall not constitute a
part hereof or affect in any way the meaning or interpretation of this
Agreement.
(f) THIRD PARTIES. Except as specifically set forth or referred
to herein, nothing herein expressed or implied is intended or shall be
construed to confer upon or give to any person or corporation other than the
parties hereto and their successors or assigns, any rights or remedies under
or by reason of this Agreement.
(g) FURTHER ASSURANCES. Each of the parties agree that from time
to time, at the request of the other party and without further consideration,
it will execute and deliver such other documents and take such other action
as such other party may reasonably request in order to consummate more
effectively the transactions contemplated hereby.
(h) SCHEDULES. The Schedules to this Agreement are deemed
incorporated in this Agreement and may contain information that is not
expressly required to be disclosed by this Agreement.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the day and year first above written.
CROW FAMILY PARTNERSHIP,
a Texas limited partnership
By: Crow Family, Inc., General Partner
By: /s/ Xxxxx Xxxxxxxxxx
Name: Xxxxx Xxxxxxxxxx
Title: Vice President
THE XXXXXXXX GROUP, INC.,
a Texas corporation
By: /s/ X.X. Xxxxxxxx
Name: X.X. Xxxxxxxx
Title: Chief Executive Officer
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STOCK PURCHASE AGREEMENT
SCHEDULE 3(b)
CAPITAL STOCK REPRESENTATIONS
Ownership of Capital Stock is reflected in the attached schedule titled
Ownership of Capital Stock. The Xxxxxxxx Group, Inc. (TCG) is currently
involved in discussions with Antinori Software, Inc. (ASI) regarding potential
merger of the two companies. Under the proposed terms of the deal, shareholders
of ASI would receive shares or options in TCG in exchange for their share or
options in ASI. The ASI shares and options would then be retired.
Schedule 3(b) titled Potential Ownership of Capital Stock Following Merger with
Antinori Software, Inc. reflects the current projection of capital stock
holdings following consummation of the proposed merger. This schedule also
reflects 84,328 Class "B" options which have been previously approved by the
shareholders for issuance.
In connection with the proposed merger, the board of directors will seek
shareholder approval to authorize an additional 75,000 shares of class "B"
options and 10,000 shares of class "A" options to facilitate the merger. Of
this additional approved block, approximately 50,850 class "B" and 5,147 of the
class "A" will be used in the merger and have been reflected in the attached
schedule.
EMPLOYEE STOCK OWNERSHIP PROGRAM (ESOP)
Under the terms of the companies ESOP program, the company is obligated to
repurchase shares of stock from the plan which the plan is required to sell in
order to fund payments to participants who resign, retire, are dismissed or die.
Payments for any individual participant are to be made in a lump sum if the
amount is less than $3,500. For payments which exceed $3,500 payments are to be
made in equal amounts over a period of five years.
OPTIONS
The company maintains a stock option plan for the benefit of its employees and
directors. Option grants and available options are listed on the schedule
titled Potential Ownership of Capital Stock Following Merger with Antinori
Software, Inc.
SHAREHOLDER AGREEMENTS
Xx. X.X. Xxxxxxxx entered into an agreement with Xx. Xxx Xxxxx whereby
Xx. Xxxxxxxx committed to Xx. Xxxxx that without the consent of Xx. Xxxxx, he
would no vote his shares of Class A Stock in favor of a Corporate Transaction
unless the Class B Stock is treated equally in all material respects from an
economic standpoint, with the Class A Stock in such Corporate Transaction.
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Xx. X.X. Xxxxxxxx entered into an agreement with W. Xxxxx Xxxx as follows:
- TAKE-ALONG SECURITIES. If Xxxxxxxx decides to sell any of his shares
in a third-party negotiated transaction, Xxxxx has the right to participate in
the sale on a pro rata basis and on the same terms.
- BOARD SEAT. Xxxxx agreed to vote his shares to elect Xxxxx to the
Board as long as Xxxxx owns at least 15,000 shares.
The company has a right of first refusal with certain of it's holders of class A
and B common stock which gives the company the right to purchase shares under
certain circumstances.
The company recently completed a sale of class A stock to Science Applications
International Corporation as part of the sale the following agreements were
reached:
- SAIC was given the right to participate in future offerings of Common
Stock by the Company so as to avoid the dilution of SAIC's equity
interest.
- SAIC was given the option to require the Company to purchase SAIC's
Shares under certain circumstances.
- The Company was given the right to purchase SAIC's Shares under
certain circumstances.
- SAIC was granted the right to have at least one representative as a
member of the Board of Directors of the Company at all times during
the term of this Agreement.
- The Company and SAIC entered into a Strategic Alliance Agreement.
Excerpts from these agreements are available upon request.
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XXXXX XXXXXXXX AGREEMENT
SCHEDULE (3)e
ENCUMBRANCES ON ASSETS
Collateral provided to Compass Bank to secure $1,000,000 Revolving Line of
Credit as follows:
Compass Bank has been granted rights in company property and assets to secure
its position for loans which it may make from time to time under the above line
of credit. No draws have been made under this credit facility during the past
year, and none are currently anticipated.
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XXXXX XXXXXXXX AGREEMENT
SCHEDULE (3)f
INVESTMENTS
The company holds an investment interest in Payment Solutions Network, Inc.
(Holdings).
The company entered into an agreement with PSN whereby the company is entitled
to a payment of $250,000, subject to certain restrictions, on January 1, 1996
and on each January 1 thereafter through January 1, 2000. Each payment
represents a repurchase of the companies interest in PSN on a $1 per share
basis. In addition the company is entitled to a contingent payment of 7% of the
first $60,000,000 of PSN revenue and 6.25% of all PSN revenues above $60,000,000
for the fiscal year ended December 31, 1999 less amounts previously paid on each
January 1.
In addition to the above holdings, the company has loaned to PSN $500,000 under
a working capital credit agreement, and has agreed to loan up to an addition
$200,000 to finance the installation of SmartNotes software at PSN customer
sites.
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XXXXX XXXXXXXX AGREEMENT
SCHEDULE (3)k
CONTRACTS
The company is not in default, and has not been notified by any other party that
it is in default, under any material contract, lease or agreement.
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CROW FAMILY PARTNERSHIP, L.P.
CERTIFICATE
The undersigned, S.T. Groenteman, Vice President, of Crow Family, Inc., a
Texas corporation and the general partner of Crow Family Partnership, L.P., a
Texas limited partnership ("Buyer"), does hereby certify as follows:
1. This Certificate is furnished to The Xxxxxxxx Group, Inc. ("Seller")
in connection with the closing of the transactions contemplated by the
Stock Purchase Agreement dated as of January 10, 1997 (the
"Agreement") by and between Buyer and Seller and pursuant to Section 7
of the Agreement.
2. All of the representations and warranties of Buyer set forth in
Section 4 of the Agreement are true and correct on the date hereof.
IN WITNESS WHEREOF, the undersigned has executed this Certificate this
28 day of January, 1997.
Crow Family, Inc.
By: /s/ S.T. Groenteman
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Name: Xxxxx Xxxxxxxxxx
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Title: Vice President
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