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EXHIBIT 5
AGREEMENT
THIS AGREEMENT made and entered into as of this tenth day of January,
1994 by and between ABACO CASA DE BOLSA, S.A. de C.V., ABACO GROUP FINANCIERO,
a Mexico corporation ("Purchaser"), and Xxxxxxxxx X. Xxxxxxx (the
"Optionholder").
RECITALS
WHEREAS, the Optionholder, a director and/or executive officer of
Xxxxxx & Xxxxxxx Capital Group, Inc. (the "Company"), was granted options to
purchase shares of Common Stock, $.09 par value per share (the "Shares"), of
the Company, pursuant to the terms of the Company's Incentive Stock Option Plan
adopted June 24, 1983;
WHEREAS, the Company has entered into an Acquisition Agreement, dated
as of November 17, 1993 (the "Acquisition Agreement"), by and among the
Company, Abaco Grupo Financiero, S.A. de C.V. and Purchaser pursuant to which,
on the Tender Closing Date, as that term is defined in the Acquisition
Agreement, Purchaser accepted for payment pursuant to a tender offer 2,363,003
Shares at $10.50 per Share in cash;
WHEREAS, pursuant to Section 5.10(C) of the Acquisition Agreement,
directors and executive officers who exercised any or all of their vested
employee stock options to purchase Shares between the first business day after
the Tender Closing Date and the tenth business day after the Tender Closing
Date may at any time between the eleventh business day and the twentieth
business day after the Tender Closing Date elect to sell to Purchaser any or
all of the Shares acquired upon such exercise ("Elected Shares") in accordance
with the terms set forth in the Acquisition Agreement;
WHEREAS, the Optionholder desires to sell to Purchaser, and Purchaser
desires to buy from Optionholder, the number of Elected Shares indicated below
the Optionholder's signature on page 3 hereof subject to the terms stated
herein.
NOW, THEREFORE, Purchaser and the Optionholder agree as follows:
1. Agreement to Sell and to Purchase. On the Closing Date (as
defined in Section 2) and upon the terms set forth in this Agreement, the
Optionholder shall sell, assign, transfer, convey and deliver the number of
Elected Shares indicated below the Optionholder's signature on page 3 hereof to
Purchaser, and Purchaser shall purchase and accept such Elected Shares from the
Optionholder.
2. Closing. The closing of such sale and purchase (the "Closing")
shall take place at 10:00 a.m., Chicago time, on
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January 10, 1995, or at such other time and date as the parties hereto shall
agree in writing (the "Closing Date") at the offices of the Company, 000 Xxxxx
XxXxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx 00000, or at such other place as the parties
hereto shall agree in writing. At the Closing, the Optionholder shall deliver
to Purchaser stock certificates representing the Elected Shares to be sold to
Purchaser pursuant to this Agreement, duly endorsed in blank for transfer or
accompanied by appropriate stock power duly executed in blank. In
consideration and exchange for such Elected Shares, Purchaser shall pay to the
Optionholder, within two business days after delivery of such Elected Shares,
the Purchase Price as provided in Section 3 hereof.
3. Purchase Price. The aggregate purchase price (the "Purchase
Price") for the Elected Shares to be sold to Purchaser pursuant to this
Agreement shall be the sum of: (A) the number of Elected Shares sold to
Purchaser pursuant to this Agreement multiplied by $10.50 per Share, and (B)
interest at the rate of 4% per annum on the aggregate amount set forth in
clause (A) of this Section 3 from the period commencing on the date of this
Agreement and ending on the date that the Purchase Price is paid in full to the
Optionholder. The Purchase Price shall be paid to the Optionholder by delivery
to the Optionholder, at his address specified below, of a certified or official
bank check payable to the order of the Optionholder in funds immediately
available in Chicago on the date of payment.
4. Ownership. The Optionholder represents and warrants to and
covenants with Purchaser that on the date hereof and on the Closing Date, the
Optionholder is and will be, subject to the rights hereunder of Purchaser, the
record and beneficial owner of the Elected Shares, free and clear of any liens,
claims, and encumbrances.
5. Investment Intent. The Elected Shares will be acquired by
Purchaser hereunder solely for the account of Purchaser, for investment, and
not with a view to the resale or distribution thereof.
6. Successors and Assigns. This Agreement shall be binding upon,
and inure to the benefit of, Purchaser and the Optionholder and their
respective heirs, successors and assigns.
7. Expenses. Except as otherwise expressly provided in this
Agreement, all legal and other fees, costs and expenses incurred in connection
with this Agreement and the transactions contemplated hereby shall be paid by
the party incurring such fees, costs or expenses.
8. Entire Agreement. This Agreement represents the entire
agreement and understanding of the parties with reference to the transactions
set forth herein and no representations or
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warranties have been made in connection with this Agreement. This Agreement
supersedes all prior negotiations, discussions, correspondence, communications,
understandings and agreements between the parties relating to the subject
matter of this Agreement and all prior drafts of this Agreement, all of which
are merged into this Agreement.
9. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original and all of which
together shall be considered one and the same agreement.
10. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Illinois.
IN WITNESS WHEREOF, Purchaser and the Optionholder have executed this
Agreement the day and year first above written.
ABACO CASA de BOLSA, S.A. de
C.V., ABACO GRUPO FINANCIERO
By: /s/ Xxxxxxx Camanrena
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Its: Chief Executive Officer
/s/ Xxxxxxxxx X. Xxxxxxx
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Optionholder
Number of Elected Shares to be sold: 27000
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Optionholder's Address: 000 Xxxxx Xxxx
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Xxxxxxxx Xxxx, XX
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60035
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