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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported) May 13, 1997
TRANSACTION SYSTEMS ARCHITECTS, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 0-25346 47-0772104
(State or other jurisdiction (Commission (IRS Employer
of incorporation) File Number) Identification No.)
330 South 108th Avenue, Omaha, Nebraska 68154
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: (402) 390-7600
TRANSACTION SYSTEMS ARCHITECTS, INC.
FORM 8-K
Item 2. Acquisition or Disposition of Assets.
On May 13, 1997, Transaction Systems Architects, Inc. (the "Company")
acquired all of the outstanding securities of Regency Voice Systems, Inc. and
related entities ("RVS"), pursuant to a statutory exchange under a Stock
Exchange Agreement (the "Stock Exchange Agreement") dated as of April 17, 1997
among the Company, RVS, and the owners of RVS. Under the terms of the exchange,
the Company issued 1,615,383 shares of Class A Common Stock.
RVS develops, markets, and supports financial software products and related
services including interactive voice response and PC-banking products for
financial institutions.
Item 7. Financial Statements and Exhibits.
(c) Exhibits.
2.10 Stock Exchange Agreement dated April 17, 1997
by and among the Company, Regency Voice
Systems, Inc., Regency Interactive Services,
Inc., Regency Voice Systems Investors, Ltd.,
and their respective shareholders and
partners.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
TRANSACTION SYSTEMS ARCHITECTS, INC.
Dated: May 20, 1997 By: /s/ Gregory J. Duman
-------------------------
Gregory J. Duman
Chief Financial Officer
(Principal Financial Officer)
EXHIBIT INDEX
Exhibit
Number Description
2.10 Stock Exchange Agreement dated April 17, 1997 by and
among the Company, Regency Voice Systems, Inc., Regency
Interactive Services, Inc., Regency Voice Systems
Investors, Ltd., and their respective shareholders and
partners.
STOCK EXCHANGE AGREEMENT EXHIBIT 2.10
THIS STOCK EXCHANGE AGREEMENT (this "Agreement") is entered into as of this
17th day of April, 1997, by and among TRANSACTION SYSTEMS ARCHITECTS, INC., a
Delaware corporation, ("TSA"), REGENCY VOICE SYSTEMS, INC., a Texas corporation
("RVS"), REGENCY INTERACTIVE SERVICES, INC., a Texas corporation ("RIS"),
REGENCY VOICE SYSTEMS INVESTORS, LTD., a Texas limited partnership ("Limited")
and all of the shareholders of RVS ("RVS Shareholders"), all of the shareholders
of RIS ("RIS Shareholders") and all of the partners of Limited ("Partners"),
whose names are set forth on the signature pages of this Agreement (where
applicable, the RVS Shareholders, Partners and RIS Shareholders shall be
referred to collectively as the "Shareholders").
RECITALS
A. TSA, RVS, RIS, Limited and the Shareholders have each determined to
engage in the transactions contemplated hereby, pursuant to which the
Shareholders will exchange (the "Exchange") all of their shares of RVS Common
Stock, having $.01 par value ("RVS Common Stock") all of their shares of RIS
Common Stock, having $.01 par value ("RIS Common Stock") and partnership
interests in Limited ("Partnership Interests"), for shares of TSA's Class A
Common Stock par value $0.005 per share which is quoted under the symbol "TSAI"
on the NASDAQ National Market System ("TSA Common Stock"), upon the terms and
subject to the conditions set forth herein.
B. The Shareholders are hereby making certain representations, warranties,
covenants and agreements in support of the transactions contemplated by this
Agreement.
C. The Exchange is intended to be treated as a "pooling of interests" for
accounting purposes and, as it relates to the RVS Common Stock, a tax-free
reorganization pursuant to the provisions of Section 368(a)(1)(B) of the
Internal Revenue Code of 1986, as amended.
NOW, THEREFORE, in consideration of the foregoing and the mutual
representations, warranties, covenants and agreements set forth herein, the
parties agree as follows:
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ARTICLE I
THE EXCHANGE
Section 1.01 The Exchange.
(a) Subject to the terms and conditions of this Agreement, on the Closing
Date (as defined in subsection (b) below), the Shareholders agree to exchange,
assign, transfer and deliver all of their Partnership Interests and shares of
RVS Common Stock for shares of TSA Common Stock and TSA agrees to exchange
therefor and assign, transfer and deliver that number of shares of TSA Common
Stock as calculated in accordance with the provisions of this Agreement. In
furtherance of the undertaking of each Shareholder in the preceding sentence and
subject to the terms and conditions of this Agreement, each Shareholder agrees
to exchange the Partnership Interests and that number of shares of RVS Common
Stock set forth opposite the name of such RVS Shareholder on the signature pages
hereof.
(b) The closing of the Exchange (the "Closing") will take place as soon as
practicable after the parties hereto are in a position to satisfy or waive the
conditions set forth in Article VII. The Closing shall take place at a date and
time to be mutually agreed upon by the parties (but not later than May 31, 1997)
(the "Closing Date") at the offices of Smith, Underwood & Perkins, a
Professional Corporation, Two Lincoln Centre, 5420 LBJ Freeway, Suite 600,
Dallas, Texas 75420, of such other location as the parties may agree.
(c) On the Closing Date, the Partners shall deliver to TSA effective
Assignments representing all of the Partnership Interests in Limited and the RVS
Shareholders and RIS Shareholders shall deliver to TSA certificates representing
all of the outstanding shares of RIS Common Stock and RVS Common Stock. TSA
shall deliver to the Shareholders for exchange in accordance with this Section
1.01 certificates evidencing TSA Common Stock in exchange for the Partnership
Interests and outstanding shares of RVS Common Stock.
(d) Notwithstanding any other provision of this Agreement, no fractional
shares of TSA Common Stock shall be issued in connection with the Exchange. In
lieu of any such fractional shares, each Shareholder who would otherwise have
been entitled to receive a fraction of a share of TSA Common Stock upon delivery
of the Assignment of Partnership Interest and surrender of the certificates of
RVS Common Stock and RIS Common Stock for exchange pursuant to this Section 1.01
shall be entitled to receive from TSA a cash payment equal to such fraction
multiplied by the closing bid price of TSA Common Stock on the NASDAQ on the
business day immediately preceding the Closing Date.
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Section 1.02 Exchange Factors.
(a) On the Closing Date (i) each share of RVS Common Stock outstanding
immediately prior to the Closing Date shall be exchanged for 2.445208 of a share
of TSA Common Stock so that the RVS Shareholders collectively shall receive
1,076,903.8462 shares of TSA Common Stock in exchange for all of the outstanding
RVS Common Stock, and (ii) each share of RIS Common Stock outstanding
immediately prior to the Closing Date shall be exchanged for .0001374 of a share
of TSA Common Stock so that the RIS Shareholders collectively shall receive
19.2308 shares of TSA Common Stock in exchange for all of the outstanding shares
of RIS Common Stock, and (iii) each one percent (1%) interest in Limited shall
be exchanged for 5,384.6154 shares of TSA Common Stock so that the Partners
collectively receive 538,461.5385 shares of TSA Common Stock in exchange for all
of the Partnership Interests.
(b) If prior to the Closing Date the outstanding shares of TSA Common
Stock, RVS Common Stock, RIS Common Stock or the Partnership Interests shall
have been changed into a different number of shares or a different class, by
reason of any stock dividend, subdivision, reclassification, recapitalization,
split-up, combination, exchange of shares or the like, the exchange ratio shall
be correspondingly adjusted.
Section 1.03 Effect of RVS and RIS Exchange under Texas Business
Corporation Act. Articles of Exchange shall be filed with the Secretary of State
of Texas as soon as practicable after Closing. The effective date of the
Exchange (the "Effective Date") shall be the Closing Date. Subject to the terms
and conditions of this Agreement, TSA will acquire all of the RVS Common Stock
and all of RIS Common Stock in a statutory share exchange pursuant to this
Agreement and in accordance with applicable provisions of Delaware and Texas law
so as to cause each share of RVS Common Stock and RIS Common Stock that is
issued and outstanding immediately prior to the Effective Date to be exchanged
for the number of fully paid and nonassessable shares of TSA Common Stock
calculated in accordance with Section 1.02 of this Agreement without further
action on the part of any holder thereof.
Section 1.04 Tax-Free Reorganization. As it relates to RVS and RIS and the
exchange of RVS Common Stock and RIS Common Stock for TSA Common Stock, the
parties intend to adopt this Agreement as a tax-free plan of reorganization and
to consummate the Exchange in accordance with the provisions of Code (Internal
Revenue Code of 1986, as amended) Section 368(a)(1)(B). The shares of TSA Common
Stock issued in the Exchange for RVS Common Stock and RIS Common Stock will be
issued solely in exchange for the issued and outstanding shares of RVS Common
Stock and RIS Common Stock pursuant to this Agreement, and no other transaction
other than the Exchange represents, provides for or is intended to be an
adjustment of the consideration paid for the RVS Common Stock and RIS Common
Stock. Except for cash paid in lieu of fractional shares or for dissenting
shares of the Shareholders pursuant to
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their rights under the Texas Business Corporation Act, no consideration that
would constitute "other property" within the meaning of Code Section 356 will be
paid by TSA for shares of RVS Common Stock or RIS Common Stock in the Exchange.
In addition, TSA represents that it presently intends, and that at the Effective
Date it will intend, to continue RVS' and RIS' historic business or use a
significant portion of RVS' and RIS' business assets in a business.
Section 1.05 Pooling of Interests. The parties intend that the transaction
in its entirety be treated as a "pooling of interests" for accounting purposes.
The parties anticipate that the combined operating results of TSA, RVS, RIS and
Limited will be publicly announced on or before July 31, 1997.
Section 1.06 Exchange of Partnership Interests under Texas Revised Limited
Partnership Act. The effective date of the exchange of Partnership Interests for
TSA Class A Common Stock shall be the Closing Date. Subject to the terms and
conditions of this Agreement, TSA will acquire all of the Partnership Interests
in a statutory interest exchange in accordance with applicable provisions of
Delaware and Texas law so as to cause each Partnership Interest in Limited to be
exchanged for the number of fully paid and nonassessable shares of TSA Common
Stock calculated in accordance with Section 1.02 of this Agreement.
Section 1.07 Transfer of Assets and Liabilities of Limited and Dissolution
of Limited. Each Shareholder shall take any and all actions reasonably requested
by TSA to effect or facilitate the transfer of the assets and liabilities of
Limited to TSA or its designee and the subsequent dissolution of Limited on the
Closing Date immediately after the Closing or on such other date after the
Closing Date as shall be designated by TSA, including, without limitation, the
admission of TSA as a partner of Limited and the execution, delivery, submission
or filing of any agreements, consents, instruments, certificates, powers of
attorney or any other documents.
Section 1.08 Announcement of Agreement. The parties will publicly announce
the execution and delivery of this Agreement after close of the NASDAQ market on
the date of it execution. The announcement will be in a form approved by TSA and
RVS.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF RVS, RIS, LIMITED
AND THE SHAREHOLDERS
RVS, RIS, Limited and each of the Shareholders represent and warrant to TSA
as set forth below:
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Section 2.01 Legal Existence and Power. Each of RIS and RVS are
corporations duly incorporated, validly existing and in good standing under the
laws of the State of Texas, and each has all corporate powers required to carry
on its business as now conducted. Limited is a limited partnership duly
organized, validly existing and in good standing under the laws of the State of
Texas, and has all necessary powers to carry on its business as now conducted.
Each of RVS, RIS and Limited are duly qualified to do business as a foreign
corporation or limited partnership, as the case may be, and is in good standing
in each jurisdiction where the character of the property owned or leased by it
or the nature of its activities makes such qualification necessary, except for
those jurisdictions where the failure to be so qualified would not, individually
or in the aggregate, have a Material Adverse Effect on RVS, RIS or Limited. For
purposes of this Agreement, the term "Material Adverse Effect" means, with
respect to any person or entity, a material adverse effect on the condition
(financial or otherwise), business, properties, assets, liabilities (including
contingent liabilities), results of operations or prospects of such person or
entity and its subsidiaries taken as a whole; and the term "Material Adverse
Change" means a change which would have a Material Adverse Effect. Each of RVS
and RIS have delivered to TSA true and complete copies of their respective
Articles of Incorporation and Bylaws as currently in effect. Limited has
delivered to TSA a true and correct copy of the Limited Partnership Agreement
and Certificate of Limited Partnership of Regency Voice Systems Investors, Ltd.
as currently in effect.
Section 2.02 Authorization. The execution, delivery and performance by RVS,
RIS and Limited of this Agreement, and the consummation by RVS, RIS and Limited
of the transactions contemplated hereby and thereby, are within the powers of
RVS, RIS and Limited, respectively, and have been or, to the extent not executed
as of the date hereof, will be prior to Closing, duly authorized by all
necessary corporate or other formal action. This Agreement constitutes, or upon
execution will constitute, valid and binding agreements of RVS, RIS and Limited,
enforceable against RVS, RIS and Limited in accordance with its terms and same
will constitute valid and binding agreements of the Shareholders, enforceable
against them in accordance with its terms, subject to the effect of (a) any
applicable bankruptcy, insolvency, reorganization or other laws relating to or
affecting creditor's rights generally and (b) general principles of equity.
Section 2.03 Governmental Authorization. The execution, delivery and
performance by RVS, RIS, Limited and the Shareholders of this Agreement and the
consummation of the transactions contemplated hereby and the continued operation
of the businesses of RVS, RIS and Limited after the Closing Date require no
action by or in respect of, or filing with, any governmental body, agency,
official or authority.
Section 2.04 Non-Contravention. The execution, delivery and performance by
RVS, RIS, Limited and the Shareholders of this
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Agreement and the consummation by RVS, RIS and Limited of the transactions
contemplated hereby do not and will not:
(a) contravene or conflict with the Articles of Incorporation
or Bylaws of RVS or RIS;
(b) contravene or conflict with or constitute a violation of
any provision of any law, regulation, judgment, injunction, order
or decree binding upon or applicable to RVS, RIS or Limited;
(c) contravene or conflict with the Partnership Agreement of
Limited or Certificate of Limited Partnership;
(d) constitute a default under or give rise to a right of
termination, cancellation or acceleration or loss of any material
benefit under any agreement, contract or other instrument binding
upon RVS, RIS or Limited or under any license, franchise, permit or
other similar authorization held by RVS, RIS or Limited; or
(e) result in the creation or imposition of any Lien (as
defined below) on any material asset of RVS, RIS or Limited.
For purposes of this Agreement, the term "Lien" means, with respect to any
asset, any mortgage, lien, pledge, charge, security interest or encumbrance of
any kind in respect of such asset.
Section 2.05 Capitalization. The authorized capital stock of RVS consists
of 10,000,000 Shares of RVS Common Stock, $.01 par value. As of the date hereof
there are outstanding 440,414 shares of RVS Common Stock.
The authorized capital stock of RIS consists of 5,000,000 Shares of RIS
Common Stock, $.01 par value. As of the date hereof there are outstanding
140,000 shares of RIS Common Stock.
All of the partnership interests in Limited are owned as
follows:
General Partner - Steve Shepherd 1%
Limited Partners - Steve Shepherd 45.183%
Carol Shepherd 45.183%
Sterling Shepherd 1%
Robert H. Seale, III 2.5%
SFC Investors, Ltd. 5.134%
All outstanding shares of capital stock of each of RVS and RIS have been
duly authorized and validly issued and are fully paid and nonassessable. Except
as set forth in this Section 2.05, there are outstanding (i) no shares of
capital stock or other securities of RVS, RIS or Limited, (ii) no securities of
RVS, RIS or Limited convertible into or exchangeable for shares of capital stock
or securities of RVS, RIS or Limited, and (iii) no options or other rights to
acquire securities from RVS, RIS or Limited and no
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obligation of RVS, RIS or Limited to issue, any capital stock, securities or
securities convertible into or exchangeable for capital stock or other
securities of RVS, RIS or Limited. There are no outstanding obligations of RVS,
RIS or Limited to repurchase, redeem or otherwise acquire any capital stock or
other securities of RVS, RIS or Limited.
Section 2.06 Subsidiaries. For purposes of this Agreement,
"Subsidiary" means any corporation, limited liability company,
partnership, joint venture or other person controlled by RVS, RIS
or Limited.
None of RVS, RIS and Limited have any Subsidiaries.
Section 2.07 Financial Statements; Absence of Undisclosed
Liabilities.
(a) The Shareholders have furnished TSA with audited combined
financial statements of RVS, RIS and Limited (which, for purposes
of this Section 2.07 shall be referred to as "RVS") for the fiscal
years ended December 31, 1995 through 1996 together with
unqualified reports thereof of Cornwell, Jackson & Company, P.C.,
independent public accountants, and unaudited financial statements
of RVS for the two (2) months ended February 28, 1997.
(Collectively, all such financial statements are hereinafter
referred to as the "RVS Financial Statements" and the December 31,
1996 balance sheet is referred to herein as the "RVS Balance
Sheet"). Each of the balance sheets included in the RVS Financial
Statements fairly presents the combined financial position of RVS
and the combined statements of income included therein fairly
present the combined results of operations and of RVS for the
periods therein set forth, and all such financial statements
included in the RVS Financial Statements (including the related
notes, where applicable) are in accordance with generally accepted
accounting principles consistently applied during the periods
involved, except as disclosed in such RVS Financial Statements and
with no unusual business practices used to increase combined net
income or combined equity. The books, records and accounts of RVS,
in reasonable detail, accurately and fairly reflect transactions of
RVS. RVS maintains a system of internal accounting controls
reasonably sufficient to assure that transactions are executed in
accordance with management's authorization and are recorded as
necessary to permit preparation of financial statements in
accordance with generally accepted accounting principles and permit
access to assets only in accordance with management's
authorization.
(b) As of the date hereof, (i) RVS has no material
liabilities of any nature, whether accrued, absolute, contingent or
otherwise, and whether due or to become due, which are of a nature
required under generally accepted accounting principles to be
reflected in a balance sheet or disclosed in the notes thereto,
which are not reflected in RVS Balance Sheet except as fully
disclosed in the notes thereto, and, (ii) all reserves set forth on
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the RVS Balance Sheet including, without limitation, allowance for
doubtful accounts were adequate in all material respects and (iii)
there were no loss contingencies which were not in all material
respects adequately provided for in the RVS Balance Sheet or
disclosed in the notes thereto.
Section 2.08 Receivables. The receivables shown on the RVS
Balance Sheet arose in the ordinary course of business and have
been collected or are collectible in the book amounts thereof, less
an amount not in excess of the allowance for doubtful accounts
provided for in such balance sheet. The receivables of RVS arising
after the date of the RVS Balance Sheet and prior to the Closing
Date arose or will arise in the ordinary course of business and
have been collected or are or will be collectible in the book
amounts thereof, consistent with the past practice of RVS, less an
appropriate allowance for doubtful accounts.
Section 2.09 Compliance with Law. Each of RVS, RIS and
Limited are in compliance in all material respects with and has
conducted its business so as to comply in all material respects
with all laws, rules and regulations, judgments, decrees or orders
of any court, administrative agency, commission, regulatory
authority or other governmental authority or instrumentality,
domestic or foreign (a "Governmental Authority") applicable to its
operations and with respect to which compliance is a condition of
engaging in the business thereof. There are no judgments or orders,
injunctions, decrees, stipulations or awards (whether rendered by
a court or administrative agency or by arbitration), including any
such actions relating to affirmative action claims or claims of
discrimination, against RVS or against any of the properties or
businesses of either RVS, RIS or Limited, which are continuing in
effect and could reasonably be expected to have a Material Adverse
Effect on RVS.
Section 2.10 No Defaults. None of RIS, RVS or Limited are
(and no event has occurred with respect to RIS, RVS or Limited
which with the passage of time or receipt of notice would cause
RVS, RIS or Limited to be), (i) in violation of any provision of
its articles of incorporation or bylaws or partnership agreement or
other similar organizational document or (ii) in default or
violation of any term, condition or provision of (A) any judgment,
decree, order, injunction or stipulation applicable to RVS, RIS or
Limited or (B) any material agreement, note, mortgage, indenture,
contract, lease or instrument, permit, concession, franchise or
license to which RVS, RIS or Limited is a party or by which RVS,
RIS, Limited or the properties or assets of either may be bound.
Section 2.11 Litigation. There is no action, suit,
proceeding, claim or investigation pending or threatened, against
RVS, RIS or Limited. RVS, RIS and Limited have delivered to TSA
complete copies of all audit response letters prepared by its
counsel for independent public accountants in connection with the
last two completed audits of the financial statements of RVS, RIS
and Limited, including the audit conducted in connection with the
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RVS Balance Sheet, and any such correspondence since the RVS
Balance Sheet Date.
Section 2.12 Absence of Certain Changes. Except as expressly
allowed or contemplated by this Agreement, since the RVS Balance
Sheet Date, RVS has conducted its business in the ordinary course
and there has not occurred:
(a) Any Material Adverse Change with respect to RVS, RIS or
Limited;
(b) Any amendments or changes in the articles or certificate
of incorporation or bylaws or partnership agreement or other
similar organizational document of RVS, RIS or Limited;
(c) Any redemption, repurchase or other acquisition of shares
of capital stock of RVS by RVS or of partnership units by Limited,
or any declaration, setting aside or payment of any dividend or
other distribution (whether in cash, stock or property) with
respect to the capital stock of RVS or partnership units of
Limited;
(d) Any increase in or modification of the compensation or
benefits payable or to become payable by RVS, RIS or Limited to any
of its directors, employees or consultants, except in the ordinary
course of business consistent with past practice;
(e) Any acquisition or sale of a material amount of property
or assets by or of RVS, RIS or Limited, except for sales to
customers in the ordinary course of business;
(f) Any entry into, amendment of, relinquishment, termination
or non-renewal by RVS, RIS or Limited of any material contract,
lease transaction, commitment or other right or obligation other
than in the ordinary course of business;
(g) Any labor dispute, other than routine individual
grievances, or, to the best of their knowledge, any activity or
proceeding by a labor union or representative thereof to organize
any employees of RVS, RIS or Limited; or
(h) Any agreement or arrangement made by RVS, RIS or Limited
to take any action after the date hereof which, if taken prior to
the date hereof, would have made any representation or warranty set
forth in this Section 2.12 untrue or incorrect as of the date when
made.
Section 2.13 Certain Agreements. Except for the bonus
agreements between RVS and William C. Hamlet and Danny Casey,
respectively (the "Bonus Agreements"), neither the execution and
delivery of this Agreement nor the consummation of the transactions
contemplated hereby or thereby will (i) result in any payment
(including, without limitation, severance, unemployment
compensation, golden parachute, bonus or otherwise) becoming due to
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any director or employee of RVS from RVS, RIS or Limited, under any
RVS Employee Plan (as defined in Section 2.14(a) below) or
otherwise, (ii) materially increase any benefits otherwise payable
under any RVS Employee Plan, or (iii) result in the acceleration of
the time of payment or vesting of any such benefits.
Section 2.14 Employee Benefits.
(a) RVS has set forth in the RVS Disclosure Schedule
(attached hereto as Exhibit A) a list which identifies each
"employee benefit plan," as defined in Section 3(3) of the Employee
Retirement Income Security Act of 1974, as amended ("ERISA"), and
each employment agreement, compensation agreement, bonus,
commission or similar arrangement, and fringe benefit arrangement
which is maintained, administered or contributed to by RVS or any
Affiliate thereof (as defined below) and covers any employee or
former employee of RVS or any Affiliate or under which RVS or any
Affiliate has any liability. Copies (or, if not in writing,
detailed summaries) of such plans (and, it applicable, related
trust agreements) and all amendments thereto and written
interpretations thereof have been furnished to TSA together with
(to the extent existing) (x) the most recent annual report (Form
5500 including, if applicable, Schedule B thereto) prepared in
connection with any such plan and (y) the most recent actuarial
valuation report prepared in connection with any such plan. Such
plans are referred to collectively herein as the "RVS Employee
Plans." For purposes of this Agreement, with respect to any party
"Affiliate" means any corporation, limited liability company,
partnership, joint venture or other person controlling, controlled
by or under common control with such party.
(b) No RVS Employee Plan constitutes a "multi employer plan"
as defined in Section 3(37) of ERISA (a "Multi employer Plan"), no
RVS Employee Plan is maintained in connection with any trust
described in Section 501 (e) (9) of the Code and no RVS Employee
Plan is subject to Title IV of ERISA or Section 412 of the Code.
Nothing done or omitted to be done and no transaction or holding of
any asset under or in connection with any RVS Employee Plan has or
will make RVS, or any officer or director thereof, subject to any
liability under Title I of ERISA.
(c) Each RVS Employee Plan which is intended to be qualified
under Section 401 (a) of the Code is so qualified and has been so
qualified during the period from its adoption to date, and each
trust forming a part thereof is exempt from tax pursuant to Section
501 (a) of the Code.
(d) Except for the Bonus Agreements, there is no contract,
agreement, plan or arrangement covering any employee or former
employee of RVS or any Affiliate that would obligate RVS or any
Affiliate to pay any additional compensation, including severance
pay, as a result of the consummation of the transactions
contemplated by this Agreement or that, individually or
collectively, could give rise to the payment by RVS of any amount
- 10 - 17Apr97
that would not be deductible pursuant to the terms of Sections
162(a)(1) or 280G of the Code.
(e) Neither RVS nor any of its Affiliates maintains or
administers any "defined benefit plans" for the benefit of its
employees. Neither RVS nor its Affiliates has any projected
liability in respect of post-retirement health, life and medical
benefits for retired employees of RVS and its Affiliates. Other
than provisions of applicable law, no condition exists that would
prevent RVS from amending or terminating any RVS Employee Plan.
(f) There has been no amendment to, written interpretation or
announcement (whether or not written) by RVS or any of its
Affiliates relating to, or change in employee participation or
coverage under, any RVS Employee Plan which would materially
increase the expense of maintaining such RVS Employee Plan above
the level of the expense incurred in respect thereof for the most
recent fiscal year,
(g) Neither RIS or Limited has any employee benefit plans.
Section 2.15 Major Contracts. Other than the Bonus Agreements
and the employment arrangement between RVS and William C. Hamlet
which provides for a bonus based on RVS sales ("Hamlet
Arrangement"), the RVS Disclosure Schedule sets forth a list of the
following agreements and covenants to which RVS, RIS or Limited is
a party or is subject to:
(a) Any union contract or any employment contract or
arrangement providing for future compensation, written or oral,
with any officer, consultant, director or employee which is not
terminable by RVS, RIS or Limited on 30 days' notice or less
without penalty or obligation to make payments related to such
termination;
(b) Any plan, contract or arrangement, written or oral,
providing for bonuses, pensions, deferred compensation, severance
pay or benefits, retirement payments, profit sharing, or the like;
(c) Any joint venture contract or arrangement or any other
agreement which has involved or is expected to involve a sharing of
profits with other persons;
(d) Any royalty, service or distribution agreement or other
similar agreement pursuant to which RVS, RIS or Limited has granted
or received rights related to any product, group of products or
territory;
(e) Any lease for real property;
(f) Any lease for personal property in which the amount of
payments which RVS, RIS or Limited is required to make on an annual
basis exceeds $25,000;
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(g) Any material license agreement, either as licensor or
licensee;
(h) Any contract containing covenants purporting to limit
freedom of RVS, RIS or Limited to compete in any line of business
in any geographic area; or
(i) Any other agreement, contract or commitment which is
material to RVS, RIS or Limited taken as a whole.
Section 2.16 Tax Returns.
(a) All Tax returns, statements, reports and forms (including
estimated Tax returns and reports and information returns and
reports) required to be filed with any Taxing Authority with
respect to any Taxable period ending on or before the Closing Date
by or on behalf of RVS, RIS or Limited (collectively, the "Tax
Returns"), have been or will be filed when due (including any
extensions of such due date).
(b) Each of RVS, RIS and Limited has timely paid, withheld or
made provision on their books for all Taxes due and payable with
respect to all fiscal periods ending on or prior to the Closing
Date and for the portion ending on the Closing Date of any fiscal
period beginning prior to the Closing Date and ending after the
Closing Date.
(c) None of RVS, RIS or Limited has granted any extension or
waiver of the limitation period applicable to any Tax Returns.
(d) To the best knowledge of the Shareholders, there is no
claim, audit, action, suit, proceeding, or investigation now
pending or threatened in writing against or with respect to RVS,
RIS or Limited in respect of any Tax or assessment.
(e) There are no liens for Taxes upon the assets of RVS, RIS
or Limited except liens for current Taxes not yet due.
(f) To the best of the knowledge of the Shareholders, none of
RVS, RIS or Limited will be required to include any adjustment in
Taxable income for any Tax period (or portion thereof) ending after
the Closing Date pursuant to Section 481 (c) of the Code (or any
similar provision of the Tax laws of any jurisdiction) as a result
of a change in method of accounting for any Tax period (or portion
thereof) ending on or before the Closing Date or pursuant to the
provisions of any agreement entered into with any Taxing Authority
with regard to the Tax liability of RVS, RIS or Limited for any Tax
period (or portion thereof) ending on or before the Closing Date.
(g) For the purposes of this Agreement, "Tax" (and, with
correlative meaning, "Taxes" and "Taxable") means, for any entity,
(i) any net income, alternative or add-on minimum tax, gross
income, gross receipts, sales, use, ad valorem, value added,
transfer, franchise, profits, license, withholding on amounts paid
- 12 - 17Apr97
to or by such entity, payroll, employment, excise, severance,
stamp, occupation, property, environmental or windfall profit tax,
or other tax, together with any interest or any penalty, addition
to tax or additional amount imposed by any governmental authority
(a "Taxing Authority") responsible for the imposition of any such
tax (domestic or foreign), (ii) liability of such entity for the
payment of any amounts of the type described in (i) as a result of
being a member of an affiliated, consolidated, combined or unitary
group for any Taxable period and (iii) liability of such entity for
the payment of any amounts of the type described in (i) or (ii) as
a result of any express or implied obligation to indemnify any
other person.
Section 2.17 Interests of Officers, Directors and Other
Affiliates. The RVS Disclosure Schedule sets forth a description of
any interest held, directly or indirectly, by any officer, director
or other affiliate of RVS, RIS or Limited in any property, real or
personal, tangible or intangible, used in or pertaining to the
business of RVS, RIS or Limited, including any interest in the
Intellectual Property Rights.
Section 2.18 Intellectual Property.
(a) RVS, RIS and Limited own or have the right to use
pursuant to license, sublicense, agreement, or permission all
Intellectual Property (as defined below) necessary for the
operation of the business of RVS, RIS and Limited, respectively, as
presently conducted. Each item of Intellectual Property owned or
used by RVS, RIS and Limited immediately prior to the Closing
hereunder will be owned or available for use by RVS, RIS and
Limited on identical terms and conditions immediately subsequent to
the Closing hereunder. RVS, RIS and Limited has taken all
reasonably necessary or desirable action to protect each item of
Intellectual Property that it owns or uses.
(b) None of RVS, RIS and Limited have interfered with,
infringed upon, misappropriated, or otherwise come into conflict
with any Intellectual Property rights of third parties, and none of
RVS, RIS and Limited have received any charge, complaint, claim, or
notice alleging any such interference, infringement,
misappropriation, or violation. No third party has interfered with,
infringed upon, misappropriated, or otherwise come into conflict
with any Intellectual Property rights of RVS, RIS and Limited.
(c) Set forth on the RVS Disclosure Schedule is a list of
each patent, copyright, trademark, or registration which has been
issued to RVS, RIS or Limited with respect to any of its
Intellectual Property and each pending patent, copyright or
trademark application or application for registration which RVS,
RIS or Limited has made with respect to any of its Intellectual
Property, and, with the exception of grants made to customers under
terms of RVS' standard form of end-user license agreement (or an
agreement substantially similar thereto), a list of each license,
agreement, or other permission which RVS, RIS or Limited has
- 13 - 17Apr97
granted to any third party with respect to any of its Intellectual
Property (together with any exceptions). With respect to each item
of Intellectual Property that RVS, RIS or Limited owns:
(i) possesses all right, title, and interest in and to
the item;
(ii) the item is not subject to any outstanding judgment,
order, decree, stipulation, injunction, or charge;
(iii) no charge, complaint, action, suit, proceeding,
hearing, investigation, claim, or demand is pending or is
threatened which challenges the legality, validity,
enforceability, use, or ownership of the item; and
(iv) it has never agreed to indemnify any person or
entity for or against any interference, infringement,
misappropriation, or other conflict with respect to the item,
except as set forth in standard end-user license agreement (or
an agreement substantially similar thereto).
(d) Set forth in the RVS Disclosure Schedule is each item of
Intellectual Property that any third party owns and that RVS, RIS
or Limited uses pursuant to license, sublicense, agreement, or
permission, except for standard software packages readily available
from retail computer and software outlets. With respect to each
such item of used Intellectual Property:
(i) the license, sublicense, agreement or permission
covering the item is legal, valid, binding, enforceable, and
in full force and effect;
(ii) the license, sublicense, agreement, or permission
will continue to be legal, valid, binding, enforceable, and in
full force and effect on identical terms following the
Closing;
(iii) no party to the license, sublicense, agreement, or
permission is in breach or default, and no event has occurred
which with notice or lapse of time would constitute a breach
or default or permit termination, modification, or
acceleration thereunder;
(iv) no party to the license, sublicense, agreement, or
permission has repudiated any provision thereof;
(v) with respect to each sublicense, the representations
and warranties set forth in subsections (i) through (iv) above
are true and correct with respect to the underlying license;
(vi) the underlying item of Intellectual Property is not
subject to any outstanding judgment, order decree,
stipulation, injunction, or charge; and
- 14 - 17Apr97
(vii) no charge, complaint, action, suit, proceeding,
hearing, investigation, claim, or demand is pending or is
threatened which challenges the legality, validity, or
enforceability of the underlying item of Intellectual
Property.
(e) For the purposes of this Agreement, Intellectual Property means: (a)
all inventions (whether patentable or unpatentable and whether or not reduced to
practice), all improvements thereto, and all patents, patent applications, and
patent disclosures, together with all reissuances, continuations,
continuations-in-part, revisions, extensions, and reexaminations thereof, (b)
all trademarks, service marks, trade dress, logos, trade names, and corporate
names, together with all translations, adaptations, derivations, and
combinations thereof and including all goodwill associated therewith, and all
applications, registrations, and renewals in connection therewith, (c) all
copyrightable works, all copyrights, and all applications, registrations, and
renewals in connection therewith, (d) all trade secrets and confidential
business information (including ideas, research and development, know-how,
formulas, compositions, manufacturing and production processes and techniques,
technical data, designs, drawings, specifications, customer and supplier lists,
pricing and cost information, and business and marketing plans and proposals),
(e) all computer software whether owned or licensed from a third party
(including data and related documentation), (f) all other proprietary rights,
and (g) all copies and tangible embodiments thereof (in whatever form or
medium).
Section 2.19 Restrictions on Business Activities. There is no material
agreement, judgment, injunction, order or decree binding upon RVS, RIS or
Limited which has or could reasonably be expected to have the effect of
prohibiting or materially impairing any business practice of RVS, RIS or
Limited, any acquisition of property by RVS, RIS or Limited or the conduct of
business by RVS, RIS or Limited as currently conducted or as currently proposed
to be conducted by RVS, RIS or Limited.
Section 2.20 Title to Properties, Absence of Liens and Encumbrances,
Condition of Equipment.
(a) The RVS Disclosure Schedule sets forth a true and complete list of all
real property leased by RVS, RIS or Limited and the aggregate annual rental or
other fee payable under any such lease.
(b) Each of RVS, RIS or Limited have valid leasehold interests in, all of
its tangible properties and assets, real, personal and mixed, used in its
business, free and clear of any Liens, except for such imperfections of title
and encumbrances, if any, which are not substantial in character, amount or
extent, and which do not materially detract from the value, or interfere with
- 15 - 17Apr97
the present use, of the property subject thereto or affected thereby.
(c) The equipment owned or leased by RVS, RIS or Limited is, taken as a
whole, (i) adequate for the conduct of the business of RVS, RIS or Limited
consistent with past practice, (ii) suitable for the uses to which it is
currently employed. (iii) in good operating condition, normal wear and tear
excepted, (iv) regularly and properly maintained, (v) not obsolete, dangerous or
in need of renewal or replacement, except for renewal or replacement in the
ordinary course of business, and (vi) free from any known defects.
Section 2.21 Governmental Authorizations and Licenses. RVS, RIS and Limited
hold all material licenses, authorizations, consents, approvals, permits
(including all necessary environmental permits), concessions, certificates and
other franchises of any Governmental Entity required to operate its business
(collectively, the "Governmental Authorizations"), the absence of any which
would have a Material Adverse Effect.
Section 2.22 Environmental Matters.
(a) Except as set forth on the RVS Disclosure Schedule, none of RVS, RIS or
Limited have received any written notice, demand, citation, summons, complaint
or order or any notice of any penalty, Lien or assessment, and no investigation
or review is pending by any governmental entity, with respect to any material
(i) alleged violation by RVS, RIS or Limited of any Environmental Law (as
defined in subsection (b) below), or (ii) alleged failure by RVS, RIS or Limited
to have any environmental permit, certificate, license, approval, registration
or authorization required in connection with the conduct of its business.
(b) For the purposes of this Section 2.22, "Environmental Laws" shall mean
any and all foreign and domestic federal, state and local laws (including case
law), regulations, ordinances, rules, judgments, orders, decrees, codes, plans,
injunctions, permits, concessions, grants, franchises, licenses, agreements and
governmental restrictions relating to human health, the environment or to
emissions, discharges or releases of pollutants, contaminants, hazardous
substances or wastes into the environment.
Section 2.23 Insurance. The RVS Disclosure Schedule lists all insurance
policies and fidelity bonds covering the assets, business, equipment,
properties, operations, employees, officers and directors of RVS, RIS and
Limited. Copies of all such policies have been delivered to TSA prior to the
date hereof. There is no claim by RVS, RIS or Limited pending under any of such
policies or bonds as to which coverage has been questioned, denied or disputed
by the underwriters of such policies or bonds. All premiums payable under all
such policies and bonds have been paid and RVS, RIS and Limited are otherwise in
full compliance with the terms of such policies and bonds (or other policies and
bonds providing substantially similar insurance coverage). There is no
threatened
- 16 - 17Apr97
termination of or material premium increase with respect to any of such policies
known to RVS, RIS or Limited.
Section 2.24 Labor Matters. RVS, RIS and Limited are in compliance with all
currently applicable laws and regulations respecting employment, discrimination
in employment, verification of immigration status, terms and conditions of
employment and wages and hours and occupational safety and health and employment
practices, and is not engaged in any unfair labor practice. None of RVS, RIS or
Limited have received any notice from any Governmental Authority, and there has
not been asserted before any Governmental Authority, any claim, action or
proceeding to which RVS, RIS or Limited is a party or involving RVS, RIS or
Limited, and there is neither pending nor threatened any investigation or
hearing concerning RVS, RIS or Limited arising out of or based upon any such
laws, regulations or practices. None of RVS, RIS or Limited is a party to a
collective bargaining agreement.
Section 2.25 Employees. The RVS Disclosure Schedule lists each salaried
employee and sales representative of RVS, RIS and Limited, his or her current
position, salary, commission and general compensation arrangement. Except for
agreements listed in the RVS Disclosure Schedule, complete and accurate copies
of which have been delivered to TSA, none of RVS, RIS or Limited is a party to
any effective consulting or employment agreements with individual consultants or
employees (including officers and directors).
Section 2.26 Customers. The RVS Disclosure Schedule sets forth a list of
customers of each of RVS, RIS and Limited. Except as set forth in the RVS
Disclosure Schedule, none of RVS, RIS or Limited has reason to believe that any
of such customers intends to terminate its business relationship with RVS, RIS
or Limited, respectively.
Section 2.27 Finders' Fees. Except as set forth in the RVS Disclosure
Schedule and J.C. Bradford & Co., there is no investment banker, broker, finder
or other intermediary which has been retained by or is authorized to act on
behalf of the Shareholders or RVS, RIS or Limited who might be entitled to any
fee or commission upon consummation of the transactions contemplated by this
Agreement.
Section 2.28 Securities Laws.
(a) Each Shareholder represents that he:
(1) has received a copy of TSA's prospectus dated April
10, 1997 (the "Prospectus") related to the issuance
of the TSA Common Stock.
(2) (i) was provided the opportunity to ask questions
of and receive answers from TSA, or its
representative, concerning the operations, business
- 17 - 17Apr97
and financial condition of TSA, and all such
questions have been answered to his full
satisfaction and any information necessary to
verify such responses has been made available to
him; (ii) has received such documents, materials
and information as he deems necessary or
appropriate for evaluation of the TSA Common Stock,
and further confirms that he has carefully read
and understands these materials and has made such
further investigation as was deemed appropriate to
obtain additional information to verify the
accuracy of such materials; (iii) confirms that the
TSA Common Stock was not offered to him by any
means of general solicitation or general
advertising; (iv) believes that he has such
knowledge and experience in financial and business
matters that he is capable of evaluating the merits
and risks of an investment in the TSA Common Stock
and is making such investment subject to the risks
contemplated under "Risk Factors" in the
Prospectus; (v) understands that there are
restrictions on the transferability of the TSA
Common Stock received by Shareholders subject to
Rule 145(c) under the Securities Act and that an
exemption from the requirement to register the TSA
Common Stock for public resale is provided by Rule
145(d) under the Securities Act; and (vi) is a
resident of Texas.
(B) Each Shareholder subject to Rule 145(c) under the Securities Act agrees
with TSA that the TSA Common Stock will not be sold or otherwise disposed of
except pursuant to (a) the provisions of Rule 145(d) under the Securities Act,
as in effect at the time of sale, (b) an exemption or exclusion from the
registration requirements under the Securities Act, which does not require the
filing by TSA with the SEC of any registration statement, offering circular or
other document, in which case each Shareholder shall first supply to TSA an
opinion of counsel (which opinion and counsel shall be reasonably satisfactory
to TSA) that such exemption or exclusion is available, or (c) a registration
statement filed by TSA with the SEC under the Securities Act (which each
Shareholder acknowledges TSA has no obligation to file). Each Shareholder
further covenants and agrees that TSA will be supplied with such written
evidence of compliance by each Shareholder and each Shareholder's broker with
Rule 145(d), as in effect at the time of any sale by each Shareholder pursuant
thereto, as TSA may reasonably request.
(c) Each Shareholder subject to Rule 145(c) agrees that the certificates
for the TSA Common Stock received shall bear the following legend:
The Shares represented by this certificate are subject to
the provisions of Rule 145(d) promulgated under the
- 18 - 17Apr97
Securities Act of 1933, and may not be transferred or
disposed of by the holder without compliance with said
Rule unless registered under said Act or pursuant to
another applicable exemption for the requirements of said
Act.
In addition, each such Shareholder agrees that TSA may place stop transfer
orders with its transfer agents with respect to such certificates. The
appropriate portions of the legend will be removed from the certificate for the
TSA Common Stock of each Shareholder promptly upon delivery to TSA of such
satisfactory evidence as may be reasonably required by TSA that such legend is
not required to ensure compliance with the Securities Act.
Section 2.29 Truthfulness. No representation or warranty of the
Shareholders herein and no document or certificate furnished or to be furnished
by or on behalf of the Shareholders or their counsel, accountants or other
agents pursuant hereto or in connection with the transactions contemplated
hereby contains or will contain any untrue statement of a material fact or omits
or will omit to state a material fact necessary in order to make the statements
contained herein or therein not misleading.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF TSA
TSA represents and warrants to RVS, RIS, Limited and the Shareholders as
set forth below:
Section 3.01 Corporate Existence and Power. TSA is a corporation duly
incorporated, validly existing and in good standing under the laws of the State
of Delaware. TSA has all corporate powers required to carry on its business as
now conducted. TSA is duly qualified to do business as a foreign corporation and
is in good standing in each jurisdiction where the character of the property
owned or leased by it or the nature of its activities makes such qualification
necessary, except for those jurisdictions where the failure to be so qualified
would not, individually or in the aggregate, have a Material Adverse Effect on
TSA.
Section 3.02 Corporate Authorization. The execution, delivery and
performance by TSA of this Agreement and the Escrow Agreement and the
consummation by TSA of the transactions contemplated hereby are within its
corporate powers and have been and, to the extent not executed as of the date
hereof, will be prior to execution, duly authorized by all necessary corporate
action. This Agreement upon execution will constitute a valid and binding
agreement of TSA, enforceable against TSA in accordance with their respective
terms.
- 19 - 17Apr97
Section 3.03 Governmental Consents and Approvals. The
execution, delivery and performance by TSA of this Agreement and
the consummation of the Exchange by TSA, require no action by or in
respect of, or filing with, any governmental body, agency, official
or authority other than:
(a) compliance with any applicable requirements of NASDAQ,
the Securities Exchange Act of 1934, as amended, and the rules and
regulations promulgated thereunder (the "Exchange Act");
(b) compliance with any applicable requirements of the
Securities Act of 1933 as amended ("Securities Act") and the rules
and regulations promulgated thereunder,
(c) compliance with any applicable state securities or "blue
sky" laws; and
Section 3.04 Non-Contravention. The execution, delivery and
performance by TSA of this Agreement and the consummation by TSA of
the transactions contemplated hereby do not and will not:
(a) contravene or conflict with the Restated Articles of
Incorporation or Bylaws of TSA;
(b) contravene or conflict with or constitute a violation of
any provision of any law, regulation, judgment, injunction, order
or decree binding upon or applicable to TSA or any other Subsidiary
of TSA;
(c) constitute a default under or give rise to a right of
termination, cancellation, acceleration or loss of any material
benefit under any agreement, contract or other instrument binding
upon TSA-or any other Subsidiary of TSA or any license, franchise,
permit or other similar authorization held by TSA or any such
Subsidiary; or
(d) result in the creation or imposition of any Lien on any
material asset of TSA or any Subsidiary of TSA.
Section 3.05 Capitalization of TSA.
(a) The authorized capital stock of TSA consists of
50,000,000 shares of Class A Common Stock, par value $0.005 per
share, 5,000,000 shares of Class B Common Stock, par value $0.005
per share and 5,450,000 shares of Preferred Stock, par value $0.001
per share. As of March 31, 1997, there were outstanding:
(i) 24,064,923 shares of Class A Common Stock,
(ii) 2,171,252 shares of Class B Common Stock, and
(iii) no shares of Preferred Stock.
- 20 - 17Apr97
All outstanding shares of TSA capital stock have been duly
authorized and validly issued and are fully paid and nonassessable.
(b) All shares of TSA Common Stock issued in the Exchange
shall, upon issuance, be duly authorized, fully paid, validly
issued and nonassessable and registered under the Securities Act
and listed under the symbol "TSAI" on the NASDAQ National Market
System. TSA has reserved and, to the extent additional authorized
shares are required, will reserve upon authorization thereof by
TSA's shareholders, sufficient shares of TSA Common Stock for
issuance in the Exchange.
Section 3.06 SEC Filings.
(a) TSA has delivered to the Shareholders:
(i) its annual report on Form 10-K for its fiscal year
ended September 30, 1996;
(ii) its quarterly reports on Form 10-Q for its fiscal
quarter ended December 31, 1996;
(iii) its proxy or information statements relating to
meetings of, or actions taken without a meeting by, the
shareholders of TSA held since September 30, 1994; and
(iv) all of its other reports, statements, schedules and
registration statements filed with the SEC since September 30,
1994 (collectively, the "SEC Reports").
Section 3.07 Financial Statements. The audited consolidated financial
statements and unaudited interim financial statements of TSA included in its
annual reports on Form 10-K and quarterly reports on Form 10-Q referred to in
Section 3.06 and present fairly, in conformity with GAAP, the consolidated
financial position of TSA and its consolidated subsidiaries as of the dates
thereof and their consolidated results of operations and cash flows for the
periods then ended (subject to normal year-end adjustments in the case of any
interim financial statements). For purposes of this Agreement, "TSA Balance
Sheet" means the consolidated balance sheet of TSA as of December 31, 1996, and
the notes thereto, contained in TSA's quarterly report on Form 10-Q filed for
its fiscal quarter then ended, and "TSA Balance Sheet Date" means December 31,
1996.
Section 3.08 Absence of Certain Changes. Since the TSA Balance Sheet Date,
TSA has conducted its business in the ordinary course and there has not occurred
any Material Adverse Change with respect to TSA.
Section 3.09 Compliance with Law. Each of TSA and its subsidiaries is in
compliance in all material respects with and has conducted its business as to
comply in all material respects with all laws, rules, regulations, judgments,
decrees or orders of any
- 21 - 17Apr97
Governmental Authority applicable to its operations and with respect to which
compliance is a condition of engaging in the business thereof. There are no
judgments or orders, injunctions, decrees, stipulations or awards (whether
rendered by a court or administrative agency or by arbitration) including any
such actions relating to affirmative action claims or claims of discrimination,
against TSA or any of its subsidiaries or against any of their respective
properties, which are continuing in effect and could reasonably be expected to
have a Material Adverse Effect on TSA.
Section 3.10 Finders' Fees. There is no investment banker, broker, finder
or other intermediary which has been retained by or is authorized to act on
behalf of TSA or any Subsidiary thereof who might be entitled to any fee or
commission from the Shareholders or RVS, RIS or Limited upon consummation of the
transactions contemplated by this Agreement.
Section 3.11 Truthfulness. No representation or warranty of TSA herein and
no document or certificate furnished or to be furnished by or on behalf of TSA
or its counsel, accountants or other agents pursuant hereto or in connection
with the transactions contemplated hereby, including, without limitation, the
SEC Reports, contains or will contain any untrue statement of a material fact or
omits or will omit to state a material fact necessary in order to make the
statements contained herein or therein not misleading.
ARTICLE IV
COVENANTS OF RVS, RIS, LIMITED,
THE SHAREHOLDERS AND SHEPHERD
RVS, RIS Limited and the Shareholders agree that:
Section 4.01 Conduct of Business. From the date hereof until
the Closing Date, RVS, RIS and Limited shall in all material
respects conduct their business in the ordinary course. Without
limiting the generality of the foregoing, from the date hereof
until the Closing Date:
(a) Neither of RVS or RIS will adopt or propose any change in
its Articles of Incorporation or Bylaws;
(b) except as contemplated by this Agreement, the Partnership
Agreement of Limited will not be subject to any amendment;
(c) Each of RVS, RIS and Limited will not:
(i) enter into any contract, agreement, plan or
arrangement covering any director, officer or employee of RVS,
RIS or Limited that provides for the making of any payments,
the acceleration of vesting of any benefit or right or any
- 22 - 17Apr97
other entitlement contingent upon (A) the Exchange or (B) the
termination of employment after the occurrence of any such
contingency if such payment, acceleration or entitlement would
not have been provided but for such contingency; or
(ii) amend any existing contract, agreement, plan or
arrangement so to provide;
(d) Neither of RVS or RIS will issue or acquire any Common
Stock or other securities and Limited will not issue any
partnership interests or other securities or rights to acquire any
securities;
(e) None of RVS, RIS or Limited will acquire or become
obligated to acquire any capital stock, partnership interests or
other securities of any third party;
(f) Each of RVS, RIS and Limited will keep in full force and
effect all of its existing insurance and will not, without the
consent of TSA, which consent will not be unreasonably withheld,
modify or reduce the coverage thereunder,
(g) None of RVS, RIS or Limited will sell, transfer, license,
sublicense or otherwise dispose of any of its material assets,
including RVS Intellectual Property, or, except in the ordinary
course of its business, pay any dividend or make any other
distribution to holders of its capital stock or partnership
interests (It is anticipated that the April 1997 distributions to
the Partners will be made on or before May 15, 1997);
(h) None of RVS, RIS or Limited will, without the consent of
TSA, which consent will not be unreasonably withheld, enter into
any contract not in the ordinary course of business.
Section 4.02 Access to Information.
(a) From the date hereof until the Closing Date, each of RVS,
RIS and Limited will, upon reasonable notice from TSA, give TSA,
its counsel, financial advisors, auditors and other authorized
representatives reasonable access during normal business hours to
the offices, properties, books and records of RVS, RIS and Limited,
will furnish to TSA, its counsel, financial advisors, auditors and
other authorized representatives such financial and operating data
and all other information with respect to the business of RVS, RIS
and Limited as such persons may reasonably request and will
instruct the employees, counsel and financial advisors of RVS, RIS
and Limited to cooperate with TSA in its investigation of the
business of RVS, RIS and Limited and in the planning for the
combination of the businesses of RVS, RIS and Limited following the
consummation of the Exchange; provided that no investigation
pursuant to this Section shall affect any representation or
warranty given by RVS, RIS, Limited or the Shareholders to TSA
hereunder.
- 23 - 17Apr97
(b) From the date hereof until the Closing Date, reasonably
promptly following the end of each month, RVS will deliver to TSA
an unaudited balance sheet and prepared by RVS' management
statement of operations of RVS, RIS and Limited for such month.
Section 4.03 Other Offers. From the date hereof until the earlier of the
Closing Date or the termination of this Agreement, RVS, RIS and Limited, and the
officers, directors, employees or other agents of RVS, RIS and Limited will not,
directly or indirectly, (i) take any action to solicit, initiate or encourage
the making of any acquisition proposal, or (ii) engage in negotiations with, or,
except as required by a court of competent jurisdiction, disclose any nonpublic
information relating to RVS, RIS or Limited or afford access to the properties,
books or records of RVS, RIS or Limited to, any person or entity that may be
considering making, or has made, an acquisition proposal.
Section 4.04 Non-Competition. Steve W. Shepherd ("Shepherd") covenants and
agrees that for a period of two (2) years following termination of employment
with TSA or its subsidiaries, including RVS (the "Termination") he will not,
whether as an employee, officer, director, consultant, or in any other capacity,
compete with TSA or any of its subsidiaries in any business in which TSA or any
of its subsidiaries is engaged or has a firm plan to engage during such period,
or hold any investment (except for a passive investment in less than five
percent (5%) equity interest in a publicly-traded corporation) in any entity
that so competes with TSA or any of its Subsidiaries; provided that this
covenant shall not obligate Shepherd unless TSA shall pay to Shepherd $125,000
within 30 days following the Termination and shall expire on the first
anniversary of the Termination unless TSA pays Shepherd $125,000 on or before
the first anniversary date.
ARTICLE V
COVENANTS OF TSA
From the date hereof until the Closing Date, TSA will, upon reasonable
notice, give RVS, RIS, Limited, the Shareholders and their counsel, financial
advisors, auditors and other authorized representatives reasonable access during
normal business hours to the offices, properties, books and records of TSA, will
furnish to RVS, RIS, Limited, the Shareholders and their counsel, financial
advisors, auditors and other authorized representatives such financial and
operating data and all other information with respect to the business of TSA as
such persons may reasonably request and will instruct the employees, counsel and
financial advisors of TSA to cooperate with such persons in their investigation
of the business of TSA and in the planning for the combination of the businesses
of Subsidiaries following the consummation of the Exchange; provided that no
investigation pursuant to this Section
- 24 - 17Apr97
shall affect any representation or warranty given by TSA to RVS, RIS, Limited or
the Shareholders hereunder.
ARTICLE VI
COVENANTS OF ALL PARTIES
TSA, RVS, RIS, Limited and the Shareholders agree that:
Section 6.01 Advice of Changes. Each party will promptly
advise the other such party in writing (i) of any event occurring
subsequent to the date of this Agreement that would render any
representation or warranty of such party contained in this
Agreement, if made on or as of the date of such event or the
Closing Date, untrue, inaccurate or misleading in any material
respect (other than an event so affecting a representation or
warranty which is expressly limited to a state of facts existing at
a time prior to the occurrence of such event) and (ii) of any
Material Adverse Change in the business condition of the party and
its subsidiaries, taken as a whole.
Section 6.02 Regulatory Approvals. Prior to the Closing Date,
each party shall execute and file, or join in the execution and
filing of, any application or other document that may be necessary
in order to obtain the authorization, approval or consent of any
governmental body, federal, state, local or foreign, which may be
reasonably required, or that the other company may reasonably
request, in connection with the consummation of the transactions
contemplated by this Agreement. Each party shall use its reasonable
best efforts to obtain all such authorizations, approvals and
consents.
Section 6.03 Necessary Consents. Prior to the Closing Date,
each party will use its reasonable best efforts to obtain such
written consents and take such other actions as may be necessary or
appropriate to allow the consummation of the transactions
contemplated hereby and to allow it to carry on its business after
the Closing Date.
Section 6.04 Actions Contrary to Stated Intent. No party
hereto will, either before or after the Exchange, take any action
that would prevent the Exchange from qualifying as a reorganization
under Sections 368 (a)(I)(B) of the Code or prevent the transaction
from qualifying for the Pooling of Interest method of accounting.
Section 6.05 Public Announcements. The timing and content of
all announcements regarding any aspect of the Exchange to the
financial community, government agencies, employees or the public
generally shall be mutually agreed upon in advance (unless TSA is
advised by its counsel that any such announcement or other
disclosure not mutually agreed upon in advance following good faith
- 25 - 17Apr97
effort to secure such agreement is required to be made by law or
applicable NASDAQ rule).
ARTICLE VII
CONDITIONS TO THE EXCHANGE
Section 7.01 Conditions to Obligations of TSA. The
obligations of TSA hereunder are subject to the fulfillment or
satisfaction, on and as of the Closing Date, of each of the
following conditions (any one or more of which may be waived by
TSA, but only in a writing signed by TSA):
(a) Approval by Directors. The Board of Directors of each of
RVS and RIS shall have approved this Agreement and the Exchange and
shall have recommended that this Agreement and the Exchange be
approved by the RVS Shareholders and RIS Shareholders.
(b) Accuracy of Representations and Warranties and Compliance
with Covenants. The representations and warranties of RVS, RIS,
Limited and the Shareholders contained in Article II shall be true
and accurate in all material respects (and without regard to any
knowledge limitation contained therein) on and as of the Closing
Date with the same force and effect as if they had been made on the
Closing Date and RVS, RIS, Limited and the Shareholders shall have
performed and complied with all of their covenants contained in
Articles IV and VI in all material respects on or before the
Closing Date. RVS, RIS and Limited shall each have provided TSA
with a certificate executed by the President and the Chief
Financial Officer of RVS and the General Partner of Limited,
respectively, dated as of the Closing Date, certifying compliance
with this subsection (a). There shall be no personal liability to
any officer of RVS, RIS or Limited based on such officer's
executing this certificate except for any misstatements therein
made with such officer's knowledge.
(c) No Material Adverse Change. There shall have been no
Material Adverse Change in RVS, RIS or Limited since the RVS
Balance Sheet Date.
(d) Consents. All written consents, assignments, waivers or
authorizations that are required as a result of the Exchange for
the continuation in full force and effect of any material contracts
or leases of RVS, RIS or Limited shall have been obtained.
(e) Approval. The Shareholders shall have unanimously
approved this Agreement and the Exchange.
(f) Delivery of RVS Common Stock Certificates, Stock Powers
and Partnership Interests. The Shareholders shall execute and
deliver (i) stock certificates and related stock powers for all of
their shares of Common Stock, and such stock certificates and stock
- 26 - 17Apr97
powers shall be in forms reasonably satisfactory to TSA and (ii)
effective assignments of all of the partnership interests in
Limited, to TSA.
(g) Articles of Exchange. The Secretary of State of Texas
shall have pre-approved a form of Articles of Exchange acceptable
to TSA to be filed with the Secretary of State of Texas pursuant to
Section 1.03 of this Agreement.
(h) Hart, Scott, Rodino. The parties shall have complied
with the requirements of the Hart, Scott, Rodino Act, if
applicable.
Section 7.02 Conditions to Obligations of RVS, RIS, Limited
and the Shareholders. The obligations hereunder are subject to the
fulfillment or satisfaction, on and as of the Closing Date, of each
of the following conditions (any one or more of which may be waived
by RVS, RIS, Limited and the Shareholders, but only in a writing
signed by RVS, RIS, Limited and the Shareholders):
(a) Accuracy of Representations and Warranties. The
representations and warranties of TSA set forth in Article III
shall be true and accurate in all material respects (and without
regard to any knowledge limitation contained therein) on and as of
the Closing Date with the same force and effect as if they had been
made on the Closing Date and TSA shall have performed and complied
with all of its covenants contained in Articles V and VI in all
material respects on or before the Closing Date. TSA shall have
provided RVS with a certificate executed by the President and the
Chief Financial Officer of TSA, dated as of the Closing Date,
certifying compliance with this subsection (a). There shall be no
personal liability to any TSA officer executing this certificate
except for any misstatements therein made with such officer's
knowledge.
(b) No Material Adverse Change. There shall have been no
Material Adverse Change in TSA since the TSA Balance Sheet Date.
(c) Delivery of TSA Common Stock Certificates. TSA shall
deliver, or cause its transfer agent to deliver to the
Shareholders, certificates evidencing the TSA Common Stock in forms
reasonably satisfactory to the Shareholders.
(d) The TSA Common Stock shall be registered under the
Securities Act of 1933, as amended.
- 27 - 17Apr97
ARTICLE VIII
TERMINATION OF AGREEMENT
Section 8.01 Termination Prior to the Closing Date. Unless
otherwise agreed by the parties hereto, this Agreement shall be
terminated if the Closing Date does not occur on or before May 31,
1996.
Section 8.02 Termination. This Agreement may be terminated at
any time prior to the Closing Date:
(i) by mutual consent of the Board of Directors of TSA
and the Shareholders;
(ii) by TSA, if (A) there has been a breach by RVS, RIS,
Limited or the Shareholders of any of their representations
and warranties hereunder such that Section 7.01 (a) will not
be satisfied or (B) there has been a breach on the part of
RVS, RIS, Limited or the Shareholders of any of their
covenants or agreements contained in this Agreement such that
in both case (A) and case (B), such breach has not been
promptly cured after 10 days notice (in reasonable detail) to
RVS, RIS, Limited or the Shareholders; or
(iii) by RVS, RIS and Limited, if (A) there has been a
breach by TSA of any of its representations and warranties
hereunder such that Section 7.02 (a) will not be satisfied or
(B) there has been the breach on the part of TSA of any of its
covenants or agreements contained in this Agreement such that
in both case (A) and case (B), such breach has not been
promptly cured after 10 days notice (in reasonable detail) to
TSA or (C) the TSA Common Shares are not, on or before the
Closing Date, registered under the Securities Act of 1933, as
amended.
Section 8.03 Effect of Termination. In the event of termination of this
Agreement as provided above, this Agreement shall forthwith become void, and
there shall be no liability on the part of the terminating party, except that
the agreements contained or referred to in Sections 6.05, 8.03, 9.03 shall
survive the termination hereof. Nothing herein shall limit the remedies
available at law or in equity against the breaching party.
ARTICLE IX
MISCELLANEOUS
Section 9.01 Definitions. The following terms are defined in the Section of
this Agreement referenced below:
- 28 - 17Apr97
Defined Term Reference
Affiliate 2.14(a)
Closing 1.01(b)
Closing Date 1.01(b)
Damages 1.03(a)
Environmental Laws 2.22(b)
ERISA 2.14(a)
Exchange Recital A
Exchange Act 3.03
GAAP 2.07
Governmental Authority 2.09
Governmental Authorizations 2.21
Lien 2.04
Material Adverse Change 2.01
Material Adverse Effect 2.01
Multi employer Plan 2.14(b)
RVS Preamble
RVS Balance Sheet 2.07
RVS Balance Sheet Date 2.07
RIS Common Stock Recital A
RVS Common Stock Recital A
RVS Disclosure Schedule 2.14(a)
RVS Employee Plans 2.14(a)
Intellectual Property Rights 2.18(e)
Shareholders Preamble
Tax Returns 2.16(a)
Securities Act 3.03(b)
Subsidiary 2.06
Tax 2.16(g)
Taxing Authority 2.16(g)
TSA Preamble
TSA Common Stock Recital A
Section 9.02 Further Assurances. Each party agrees to
cooperate fully with the other parties and to execute such further
instruments, documents and agreements and to give such further
written assurances as may be reasonably requested by any other
party to better evidence and reflect the transactions described
herein and contemplated hereby and to carry into effect the intents
and purposes of this Agreement.
Section 9.03 Fees and Expenses. Each party shall bear its own
fees and expenses.
Section 9.04 Survival of Representations and Warranties,
Indemnity.
(a) Survival of Representations. Except as otherwise
expressly provided herein, the representations, warranties,
covenants and agreements of the parties contained in or made
pursuant to this Agreement shall survive the execution and delivery
of this Agreement and the Closing Date and shall in no way be
affected by any investigation of the subject matter thereof made by
or on behalf of any other party and, except as otherwise provided
in this Section 9.04, shall expire on the first anniversary of the
- 29 - 17Apr97
Closing Date. The representations, warranties, covenants and
agreements of the Shareholders and TSA, respectively, contained in
or made pursuant to this Agreement shall survive the execution and
delivery of this Agreement and the Closing Date but shall expire on
the first anniversary of the Closing Date in the absence of actual
fraud except in respect of any claim based on, arising out of or
otherwise involving any fact, circumstance or otherwise involving
any fact, circumstance, action or proceeding in respect of which
the party asserting such claim shall have given written notice to
the party against whom indemnification is sought prior to or on
such first anniversary, which notice shall describe such claim with
reasonable specificity, including the specific nature of the breach
and the damages resulting from such breach and provided further
that the party asserting the claim shall have initiated a formal
proceeding based on the claim in any court having competent
jurisdiction (for these purposes, the parties agree to the non-
exclusive jurisdiction of any state or federal court in the State
of Nebraska) within ninety (90) days following the first
anniversary date of the Closing Date.
(b) Indemnification by the Shareholders. If the Closing of
the Exchange shall occur, then, subject to the provisions of this
Section 9.04, the Shareholders severally shall indemnify and hold
harmless TSA and its affiliates from and against all damages in
excess of $200,000 arising from any misrepresentation or breach of
warranty, covenant or agreement made by the Shareholders in Article
II and any breach by RVS, RIS, Limited or the Shareholders of any
covenant or agreement on its, his or her part contained in this
Agreement;
Each Shareholder shall indemnify TSA for the damages set forth
in Section 9.04(b) but in no event shall a Shareholder be required
to indemnify TSA for an amount in excess of the value of the TSA
shares received by such Shareholder pursuant to the Exchange,
valued at the closing price of TSA shares on NASDAQ on the business
day prior to the Closing Date. Payment of any indemnity shall be
made by transferring TSA Common Stock valued at the closing price
determined by the result of dividing the actual exchange value by
the total number of TSA shares exchanged.
(c) Shareholders' Participation in Defense Against Third
Party Claims. The Shareholders shall be entitled to assume the
defense of any claims for which TSA shall seek indemnification from
the Shareholders under this Agreement and which are brought by
parties unaffiliated with TSA. If the Shareholders elect in writing
to assume the defense of any lawsuit or action with respect to any
claim for which TSA is seeking indemnification under this
Agreement, the Shareholders shall take control of the defense and
investigation of such lawsuit or action and shall employ and engage
an attorney of their own choice reasonably acceptable to TSA to
handle and defend such lawsuit or action, at the Shareholders'
cost. TSA shall have the right to employ counsel with respect to
any such claim, but the fees and expenses of such counsel shall be
at the expense of TSA unless (i) the employment of counsel by TSA
has been authorized in writing by the Shareholders, or (ii) the
Shareholders shall not in fact have employed counsel to assume the
- 30 - 17Apr97
defense of such claim, in each of which case, the fees and expenses
of counsel shall be at the expense of the Shareholders. Regardless
of which party is controlling the defense of any claim, (i) both
the Shareholders and TSA shall act in good faith, (ii) no
settlement of such claim may be agreed to without the written
consent of both the Shareholders and TSA, which consent shall not
be unreasonably withheld, and (iii) the fees and expenses of the
counsel retained to defend such claim shall be payable by the
Shareholders except as provided in the foregoing sentence.
(d) Indemnification by TSA. If the Closing of the Exchange
shall occur, then, subject to the provisions of this Section 9.04,
TSA shall indemnify and hold harmless the Shareholders and its
affiliates from and against all damages in excess of $200,000
arising from any misrepresentation or breach of warranty, covenant
or agreement made by TSA in Article III and any breach by TSA of
any covenant or agreement on its part contained in this Agreement.
TSA shall indemnify the Shareholders for the damages set forth
in Section 9.04(d) but in no event shall TSA be required to
indemnify any Shareholder for an amount in excess of the value of
the TSA shares received by such Shareholder pursuant to the
Exchange, valued at the closing price of TSA shares on NASDAQ on
the business day prior to the Closing Date.
(e) TSA's Participation in Defense Against Third Party
Claims. TSA shall be entitled to assume the defense of any claims
for which the Shareholders shall seek indemnification from TSA
under this Agreement. If TSA elects in writing to assume the
defense of any lawsuit or action with respect to any claim for
which the Shareholders are seeking indemnification under this
Agreement, TSA shall take control of the defense and investigation
of such lawsuit or action and shall employ and engage one attorney
of its own choice reasonably acceptable to the Shareholders to
handle and defend all of the Shareholders in such lawsuit or
action, at TSA's cost. The Shareholders shall have the right to
employ counsel with respect to any such claim, but the fees and
expenses of such counsel shall be at the expense of the
Shareholders unless (i) the employment of counsel by the
Shareholders has been authorized in writing by TSA, or (ii) TSA
shall not in fact have employed counsel to assume the defense of
such claim, in each of which case, the fees and expenses of counsel
shall be at the expense of TSA. Regardless of which party is
controlling the defense of any claim, (i) both the Shareholders and
TSA shall act in good faith, (ii) no settlement of such claim may
be agreed to without the written consent of both the Shareholders
and TSA, which consent shall not be unreasonably withheld, and
(iii) the fees and expenses of the counsel retained to defend such
claim shall be payable by TSA except as provided in the foregoing
sentence.
(f) Indemnification by Steve W. Shepherd. As a condition to
the closing of the Exchange, Steve W. Shepherd shall be obligated
to make all payments due under the Bonus Agreements (but not the
Hamlet Arrangement) and due to J.C. Bradford & Co. Further, Steve
W. Shepherd shall indemnify TSA from any liability arising in
- 31 - 17Apr97
connection with his obligations set forth in the preceding sentence.
Section 9.05 Notices. Whenever any party hereto desires or is
required to give any notice, demand, or request with respect to
this Agreement, each such communication shall be in writing and
shall be effective only if it is delivered by personal service or
mailed, United States registered or certified mail, postage
prepaid, or sent by prepaid overnight courier or confirmed
telecopier, addressed as follows:
If to TSA:
William E. Fisher
CEO & President
Transaction Systems Architects, Inc.
330 South 108th Avenue
Omaha, Nebraska 68154
With a copy in each case to:
David P. Stokes
General Counsel
Transaction Systems Architects, Inc.
330 South 108th Avenue
Omaha, Nebraska 68154
If to RVS, RIS, Limited or the Shareholders:
Steve W. Shepherd
Regency Voice Systems, Inc.
15820 Addison Road
Dallas, Texas 75248
With a copy in each case to:
William J. Underwood, Jr.
Smith, Underwood & Perkins, P.C.
600 Two Lincoln Centre
5420 LBJ Freeway
Dallas, Texas 75240
Telecopy: 972/661-5691
Such communications shall be effective when they are received by the
addressee thereof. Any party may change its address or telecopier number for
such communications by giving notice thereof to the other parties in conformity
with this Section.
Section 9.06 Governing Laws. The laws of the State of Nebraska
(irrespective of its choice of law principles) shall govern the validity of this
Agreement, the construction of its terms, and the interpretation and enforcement
of the rights and duties of the parties.
- 32 - 17Apr97
Section 9.07 Binding upon Successors and Assigns. No assignment or transfer
by TSA, the Shareholders or RVS, RIS or Limited of their respective rights and
obligations hereunder shall be made except for such transfers as are effected by
death or testamental succession or otherwise by operation of law. This Agreement
shall be binding upon and shall inure to the benefit of the parties hereto and
their permitted successors and assigns (including without limitation the
administrators, executors, representatives, heirs, legatees and devisees of the
Shareholders), and any reference to such a party hereto shall also be a
reference to permitted successors or assigns.
Section 9.08 Severability. If any provision of this Agreement, or the
application thereof, shall for any reason or to any extent be invalid or
unenforceable, the remainder of this Agreement and application of such provision
to other persons or circumstances shall continue in full force and effect and in
no way be affected, impaired or invalidated.
Section 9.09 Entire Agreement. This Agreement and the other agreements and
instruments referenced herein constitute the entire understanding and agreement
of the parties with respect to the subject matter hereof and thereof and
supersede all prior and contemporaneous agreements or understandings,
inducements or conditions, express or implied, written or oral, between the
parties with respect hereto.
Section 9.10 Other Remedies. Except as otherwise provided herein, any and
all remedies herein expressly conferred upon a party shall be deemed cumulative
with and not exclusive of any other remedy conferred hereby or by law on such
party, and the exercise of any one remedy shall not preclude the exercise of any
other.
Section 9.11 Amendment and Waivers. Any term or provision of this Agreement
may be amended. and the observance of any term of this Agreement may be waived
(either generally or in a particular instance and either retroactively or
prospectively) only by a writing signed by the party to be bound thereby. The
waiver by a party of any breach hereof or default in the performance hereof
shall not be deemed to constitute a waiver of any other default or any
succeeding breach or default. The failure of any party to enforce any of the
provisions hereof shall not be construed to be a waiver of the right of such
party thereafter to enforce such provisions. This Agreement may not be amended
or supplemented by any party hereto except pursuant to a written amendment
executed by all parties.
Section 9.12 Construction of Agreement. A reference to an Article, Section,
Schedule or Exhibit shall mean an Article of, a Section in, or Schedule or
Exhibit to, this Agreement unless otherwise explicitly set forth. The titles and
headings herein are for reference purposes only and shall not in any manner
limit the construction of this Agreement which shall be considered as a whole.
The words "include," "includes," and "including" when used
- 33 - 17Apr97
herein shall be deemed in each case to be followed by the words "without
limitation."
Section 9.13 Absence of Third Party Beneficiary Rights. No provision of
this Agreement is intended, not will be interpreted, to provide to create any
third party beneficiary rights or any other rights of any kind in any client,
customer, affiliate, shareholder, employee, partner or any party hereto or any
other person or entity and all provisions hereof will be personal solely between
the parties to this Agreement.
Section 9.14 Mutual Drafting. This Agreement is the joint product of the
parties hereto, and each provision hereof has been subject to the mutual
consultation, negotiation and agreement of such parties, and shall not be
construed for or against any party hereto.
Section 9.15 Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be an original as against any party whose
signature appears thereon and all of which together shall constitute one and the
same instrument. This Agreement shall become binding when one or more
counterparts hereof, individually or taken together, shall bear the signatures
of all of the parties reflected hereon as signatories.
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement on the
date first above written.
TRANSACTION SYSTEM ARCHITECTS, REGENCY VOICE SYSTEMS, INC.
INC. ("TSA") ("RVS")
By:/s/William Fisher By: /s/Steve W. Shepherd
- -------------------- ------------------------
Name:William Fisher Name: Steve W. Shepherd
Title: President Title: Chairman
REGENCY INTERACTIVE SYSTEMS, REGENCY VOICE SYSTEMS INVESTORS,
INC. ("RIS") LTD. ("Limited")
By: /s/Steve W. Shepherd By: /s/Steve W. Shepherd
- ----------------------- ---------------------
Name: Steve W. Shepherd Name: Steve W. Shepherd
Title: President Title: General Partner
- 34 - 17Apr97
RVS SHAREHOLDERS
By: /s/Steve W. Shepherd
- -------------------------
Printed Name: Steve W. Shepherd
212,500 Shares
By: /s/Carol Ann Shepherd
- ----------------------
Printed Name: Carol Ann Shepherd
212,500 Shares
By: /s/Robert H. Seale, III
- ----------------------------
Printed Name: Robert H. Seale, III
11,010 Shares
By: /s/Sterling C. Shepherd
- ----------------------------
Printed Name: Sterling C. Shepherd
4,404 Shares
- 35 - 17Apr97
RIS SHAREHOLDERS
By: /s/Steve W. Shepherd
- -------------------------
Printed Name: Steve W. Shepherd
70,000 Shares
By: /s/Carol Ann Shepherd
- ---------------------------
Printed Name: Carol Ann Shepherd
70,000 Shares
- 36 - 17Apr97
PARTNERS
By: /s/Steve W. Shepherd
- -------------------------
Printed Name: Steve W. Shepherd
1% General Partnership Interest
45.183% Limited Partnership Interest
By: /s/Carol Ann Shepherd
- -------------------------
Printed Name: Carol Ann Shepherd
45.183% Limited Partnership Interest
By: /s/Robert H. Seale III
- ---------------------------
Printed Name: Robert H. Seale, III
2.5% Limited Partnership Interest
By: /s/Sterling C. Shepherd
- ----------------------------
Printed Name: Sterling C. Shepherd
1% Limited Partnership Interest
By: /s/SFC Investors, Ltd.
- ---------------------------
Printed Name: SFC Investors, Ltd.
by Danny Casey, General Partner
5.134% Limited Partnership Interest
- 37 - 17Apr97