Exhibit 99.3
CONTRIBUTION AGREEMENT
This Contribution Agreement, dated as of July 1, 2005, (this "AGREEMENT")
is by and between each of the Parties who has become a signatory hereto (each a
"PARTY" and, collectively, the "PARTIES").
RECITALS:
A. Each of the Parties is a stockholder of Capital & Technology Advisors,
Inc., a Delaware corporation ("C&TA").
B. It is contemplated that on or after the date of this Agreement, C&TA,
Tejas Incorporated, a Delaware corporation ("TEJAS"), Tejas Acquisition Corp., a
Delaware corporation ("TEJAS SUB"), and the Parties hereto, as well as the other
C&TA stockholders, will enter into an Agreement and Plan of Merger, dated as of
July 1, 2005 (as amended, restated, supplemented or otherwise modified from time
to time, the "MERGER AGREEMENT"), pursuant to which, among other things and
subject to certain terms and conditions, Tejas Sub will be merged with and into
C&TA, with C&TA being the Surviving Corporation (the "MERGER"). From and after
the Effective Time of the Merger, the Surviving Corporation will be a wholly
owned subsidiary of Tejas.
C. The Parties desire to agree between themselves as to the extent of their
liabilities in respect of the Merger Agreement and for contribution with respect
to the Obligations (defined below) as set forth in this Agreement.
AGREEMENTS:
In consideration of the foregoing, the mutual agreements contained herein
and other consideration, and intending to be legally bound, the Parties hereby
agree as follows:
1. Capitalized terms used and not otherwise defined in this Agreement shall
have the meanings ascribed to them in the Merger Agreement. As used in this
Agreement, the following terms have the meanings indicated below:
"CONTRIBUTION PERCENTAGE" means, with respect to each Party, the percentage
set forth adjacent to such Party's name on Schedule A hereto (which percentage
for each Party shall be determined by dividing the total amount of Merger
Consideration received by such Party by the aggregate amount of Merger
Consideration received by both Parties).
"CONTRIBUTION PRO RATA SHARE" means, with respect to any Party and any
amount of Obligations, an amount equal to such Party's Contribution Percentage
multiplied by such amount of Obligations.
"OBLIGATIONS" means any and all payment obligations, including without
limitation any Losses and any costs and expenses of defending any claims, of any
one or more of the Parties with respect to which, in accordance with the terms
of Sections 8.01(a) and 8.06 of the Merger Agreement, such Party would have a
liability pursuant to the terms of the Merger Agreement, excluding any such
amounts covered by the Escrow Amount; provided however, that any such liability
of a Party arising out of the fraud of such Party or arising pursuant to Section
8.01(b) of the Merger Agreement with respect to such Party's representations and
covenants that are made severally and not jointly shall not be deemed to be an
Obligation pursuant to this Agreement.
2. As between the Parties, the amount, if any, that each of the Parties
shall be obligated to pay on account of any Obligations of the Parties shall be
an amount that is equal to such Party's Contribution Pro Rata Share of such
Obligations.
3. If any Party (an "OVERPAYING PARTY") shall pay an amount greater than
his or its Contribution Pro Rata Share of any Obligations, the Overpaying Party
shall have the right to receive, as contribution, payment from the other Party
(an "UNDERPAYING PARTY") who paid an amount (including zero) less than his or
its Contribution Pro Rata Share such that, after payment of such contribution,
the Underpaying Party shall have paid his or its Contribution Pro Rata Share. An
Underpaying Party shall pay such amount as required hereunder immediately upon
notice by the Overpaying Party.
4. In the event that either Party receives notice of any claim by an
indemnified Party in respect of any of the Obligations (whether pursuant to
Article VIII of the Merger Agreement or otherwise), such Party shall promptly
give the other Party written notice of its receipt of such notice, together with
a copy thereof.
5. No extension or renewal of the Obligations shall create, alter, impair,
release or waive any rights, duties, obligations or liabilities herein created.
Nothing contained in this Agreement shall create any third party beneficiary
rights.
6. Notwithstanding anything in this Agreement to the contrary, in no event
shall a Party to this Agreement be obligated to pay any amount hereunder as an
Underpaying Party which would cause such Party's aggregate payments under
Article VIII of the Merger Agreement and this Agreement to exceed the Party's
maximum indemnification obligations, calculated in accordance with Section
8.05(a) of the Merger Agreement.
7. This Agreement constitutes the entire agreement between the Parties
regarding the subject matter contained herein and shall be binding upon and
inure to the benefit of the Parties and their respective legal representatives,
heirs, successors and assigns. This Agreement may not be assigned in whole or in
part by either Party without the unanimous written consent of the other Parties.
This Agreement shall not be modified, amended or supplemented except pursuant to
an instrument in writing executed and delivered by or on behalf of either Party
hereto.
8. The failure in any one or more instances of a Party to insist upon
performance of any of the terms, covenants or conditions of this Agreement, to
exercise any right or privilege in this Agreement conferred, or the waiver by
such Party of any breach of any of the terms, covenants or conditions of this
Agreement shall not be construed as a subsequent waiver of any such terms,
covenants, conditions, rights or privileges, but the same shall continue and
remain in full force and effect as if no such forbearance or waiver had
occurred. No waiver shall be effective unless it is in writing and signed by an
authorized representative of the waiving Party.
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9. The invalidity of any provision of this Agreement or portion of a
provision shall not affect the validity of any of the provisions of this
Agreement or the remaining portion of the applicable provision.
10. Any notices and other communications hereunder shall be in writing and
shall be deemed given if (i) delivered personally, (ii) sent by facsimile, with
confirming copy sent as set forth in clause (iii), or (iv) sent by Federal
Express, DHL, UPS or overnight courier (providing proof of delivery) to the
Parties, in each case at the address set forth for such Party of Schedule A or
at such other address as such Party shall have provided in writing. Unless
otherwise specified herein, such notices or communications shall be deemed
effective, (a) on the date received, if personally delivered or sent by
facsimile during normal business hours, or (b) if delivered by overnight
courier, on the date delivered as established by return receipt or courier
service confirmation date on which the return receipt or courier services
confirms that acceptance of delivery was returned by the addressees. Each of the
Parties hereto shall be entitled to specify a different address by giving notice
as aforesaid to each of the other Parties hereto.
11. This Agreement may be executed in multiple counterparts, each of which
shall be deemed to be an original, and all such counterparts shall constitute
but one instrument.
12. This Agreement shall be governed and controlled as to validity,
enforcement, interpretation, construction, effect and in all other respects by
the internal laws of the State of New York applicable to contracts made and
performed in that State.
[Remainder of Page Intentionally Left Blank]
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IN WITNESS WHEREOF, the Parties have executed this Contribution Agreement
as of the date first written above.
NISKAYUNA DEVELOPMENT LLC
By: /s/ Xxxxx X. Xxxxxxxxxx, Xx.
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Name: Xxxxx X. Xxxxxxxxxx, Xx.
/s/ Xxxxx Xxxx, Xx.
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Xxxxx Xxxx, Xx.
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SCHEDULE A
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Name Contribution %
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Niskayuna Development LLC
Address: 00 Xxxxxxxxx Xxxx 85%
Xxxxxxxxxxx, XX 00000
Xxxxx Xxxx, Xx.
Address: 00 Xxxx Xxxx 00%
Xxxxxxxx, XX 00000
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