-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, CZ06D5a5uZIove9G6UaZf783s7ENIcucJ8akvJXgNNVNblTkCCheDKlFU4hLrfeu aCYqjGTpF+8L0JOQQe4LVQ== 0001019687-06-002285.txt : 20061002 0001019687-06-002285.hdr.sgml : 20061002 20061002162107 ACCESSION NUMBER: 0001019687-06-002285 CONFORMED SUBMISSION TYPE: SC 13D/A PUBLIC DOCUMENT COUNT: 4 FILED AS OF DATE: 20061002 DATE AS OF CHANGE: 20061002 SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: Tejas Inc CENTRAL INDEX KEY: 0000869688 STANDARD INDUSTRIAL CLASSIFICATION: FINANCE SERVICES [6199] IRS NUMBER: 133577716 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D/A SEC ACT: 1934 Act SEC FILE NUMBER: 005-61717 FILM NUMBER: 061120891 BUSINESS ADDRESS: STREET 1: 8226 BEE CAVES ROAD CITY: AUSTIN STATE: TX ZIP: 78746 BUSINESS PHONE: 5123068222 MAIL ADDRESS: STREET 1: 8226 BEE CAVES ROAD CITY: AUSTIN STATE: TX ZIP: 78746 FORMER COMPANY: FORMER CONFORMED NAME: WESTECH CAPITAL CORP DATE OF NAME CHANGE: 19930328 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: BARR WAYNE JR CENTRAL INDEX KEY: 0001270217 FILING VALUES: FORM TYPE: SC 13D/A MAIL ADDRESS: STREET 1: ANACOMP INC STREET 2: 15378 AVENUE OF SCIENCE CITY: SAN DIEGO STATE: CA ZIP: 92128 SC 13D/A 1 barr_13da1-tejas.txt SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 SCHEDULE 13D Under the Securities Exchange Act of 1934 (Amendment No. 1)* Tejas Incorporated -------------------------------- (Name of Issuer) Common Stock, $0.001 par value --------------------------------------------- (Title of Class of Securities) 957531205 -------------------- (CUSIP Number) Wayne Barr, Jr. c/o Capital & Technology Advisors, Inc. 18 Corporate Woods Boulevard Third Floor Albany, New York 12211 (518) 462-2632 ------------------------------------------------------------- (Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications) October 1, 2006 -------------------------------------------------------------- (Date of Event which Requires Filing of this Statement) If the filing person has previously filed a statement on Schedule 13G to report the acquisition that is the subject of this Schedule 13D, and is filing this schedule because of ss.ss.240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check the following box [ ] 1. Names of Reporting Persons. I.R.S. Identification Nos. of above persons (entities only). Wayne Barr, Jr. - -------------------------------------------------------------------------------- 2. Check the Appropriate Box if a Member of a Group (See Instructions) (a) [ ] (b) [ ] - -------------------------------------------------------------------------------- 3. SEC Use Only - -------------------------------------------------------------------------------- 4. Source of Funds (See Instructions) OO - -------------------------------------------------------------------------------- 5. Check if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d)or 2(e) [ ] - -------------------------------------------------------------------------------- 6. Citizenship or Place of Organization United States - -------------------------------------------------------------------------------- Number of 7. Sole Voting Power Shares 0 Beneficially ---------------------------------------------------------- Owned By 8. Shared Voting Power Each 0 Reporting ---------------------------------------------------------- Person 9. Sole Dispositive Power With 0 ---------------------------------------------------------- 10. Shared Dispositive Power 0 ---------------------------------------------------------- 11. Aggregate Amount Beneficially Owned by Each Reporting Person 0 - -------------------------------------------------------------------------------- 12. Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions) [ ] - ----------------------------------------------------------------------------- 13. Percent of Class Represented by Amount in Row (11) 0% - ----------------------------------------------------------------------------- 14. Type of Reporting Person (See Instructions) IN - ----------------------------------------------------------------------------- Introduction This Amendment No. 1 to Schedule 13D is being filed by Wayne Barr, Jr. ("Mr. Barr" or the "Reporting Person"), to report the disposition in full of the shares of common stock, par value $0.001 per share, of Tejas Incorporated (the "Issuer") that had been beneficially owned by Mr. Barr. Item 1. Security and Issuer This statement relates to the common stock of Tejas Incorporated. The Issuer's executive offices are located at 8226 Bee Caves Road, Austin, Texas 78746. Item 2. Identity and Background (a) This statement is filed by Wayne Barr, Jr. (b) The address of the principal business office of Mr. Barr is 18 Corporate Woods Boulevard, Third Floor, Albany, NY 12211. (c) Mr. Barr is President and Chief Executive Officer of Capital & Technology Advisors, Inc. (d) During the past five years, Mr. Barr has not been convicted in a criminal proceeding (excluding traffic violations or similar misdemeanors). (e) During the last five years, Mr. Barr has not been a party to a civil proceeding of a judicial or administrative body of competent jurisdiction as a result of which he was or is subject to a judgment, decree or final order enjoining future violations of, or prohibiting or mandating activities subject to, Federal or State securities laws or findings of any violation with respect to such laws. (f) Mr. Barr is a citizen of the United States of America. Item 3. Source and Amount of Funds or Other Consideration The shares of common stock of the Issuer beneficially held by Mr. Barr were transferred back to the Issuer pursuant to a Purchase Agreement dated as of October 1, 2006 by and among Tejas Incorporated, Capital & Technology Advisors, Inc. and the persons and entities listed on the signature page thereto (each a "Stockholder" and collectively, the "Stockholders"). The consideration paid by the Issuer on the Closing Date to the Stockholders, in exchange for their shares of the Issuer's common stock, consisted of all of the outstanding capital stock of Capital & Technology Advisors, Inc. ("C&TA"), of which Mr. Barr received 44.07375 shares. The foregoing summary of the Purchase Agreement is qualified in its entirety by reference to the copy of the Purchase Agreement included as Exhibit 99.1 to this Amendment No. 1 to Schedule 13D and incorporated herein in its entirety by reference. Item 4. Purpose of Transaction The Reporting Person has not effected any transaction of the Issuer's securities except as disclosed herein. As described in Item 3 above, this statement relates to shares of the Issuer's common stock transferred to the Issuer by Mr. Barr in exchange for shares of capital stock of Capital & Technology Advisors, Inc. held by the Issuer. Pursuant to a Termination and Release Agreement Relating to Employment and Confidentiality Agreement, dated as of October 1, 2006, entered into in connection with the Purchase Agreement, Mr. Barr terminated his employment with the Issuer effective October 1, 2006. Except as may be provided herein, the Reporting Person does not have any other plans or proposals which would result in: (a) the acquisition by any person of additional securities of the Issuer, or the disposition of securities of the Issuer; (b) an extraordinary corporate transaction, such as a merger, reorganization or liquidation of the Issuer or any of its subsidiaries; (c) a sale or transfer of a material amount of assets of the Issuer or any of its subsidiaries; (d) any change in the present board of directors or management of the Issuer, including any plans or proposals to change the number or term of directors or to fill any existing vacancies on the board; (e) any material change in the present capitalization or dividend policy of the Issuer; (f) any other material change in the Issuer's business or corporate structure, (g) any changes in the Issuer's charter, by-laws or instruments corresponding thereto or other actions which may impede the acquisition of control of the Issuer by any person; (h) causing a class of securities of the Issuer to be delisted from a national securities exchange or cease to be authorized to be quoted in an inter-dealer quotation system of a registered national securities association; (i) causing a class of equity securities of the Issuer to become eligible for termination of registration pursuant to Section 12(g)(4) of the Securities Exchange Act of 1934; or (j) any action similar to any of those enumerated above. Item 5. Interest in Securities of the Issuer (a) Amount beneficially owned: 0 (b) Number of shares as to which Reporting Person has: (i) sole power to vote or direct the vote: 0 (ii) shared power to vote or direct the vote: 0 (iii) sole power to dispose or direct the disposition of: 0 (iv) shared power to dispose or direct the disposition of: 0 (c) As discussed in response to Item 3, on October 1, 2006, pursuant to the Purchase Agreement, Mr. Barr transferred all his interest in shares of the Issuer to the Issuer in exchange for 44.07375 shares of common stock of Capital & Technology Advisors, Inc. (e) On October 1, 2006, the Reporting Person ceased to be the beneficial owner of more than 5% of the common stock of the Issuer. Item 6. Contracts, Arrangements, Understandings or Relationships with Respect to Securities of the Issuer Also on October 1, 2006, pursuant to the Purchase Agreement, the Escrow Agreement by and among Capital & Technology Advisors, Inc., the Issuer, Niskayuna Development LLC, now known as Winchester Development LLC ("Winchester"), Mr. Barr and HSBC Bank USA, National Association, as escrow agent, under which Winchester and Mr. Barr deposited 262,919 and 46,397 shares, respectively, of common stock of Issuer received pursuant to the Merger Agreement into escrow to secure certain indemnity obligations of Capital & Technology Advisors, Inc. under the Merger Agreement, was terminated and a Termination and Release Agreement Relating to Escrow Agreement was executed. Pursuant to the terms of the Termination and Release Agreement, the shares held by the Escrow Agent were delivered to the Issuer. Also on October 1, 2006, as a result of termination of the Merger Agreement, the Contribution Agreement between Niskayuna (now known as Winchester Development LLC) and Barr, dated as of July 1, 2005 pursuant to which the parties agree that an Underpaying Party (as defined in the Contribution Agreement) shall repay an Overpaying Party (as defined in the Contribution Agreement), as contribution, such amounts as are necessary to ensure that each party pays his Contribution Pro Rata Share (as defined in the Contribution Agreement) of any obligations under the Merger Agreement, is of no further force and effect. Also on October 1, 2006, pursuant to the Purchase Agreement, the registration rights agreement (the "Registration Rights Agreement"), between the Issuer and the Stockholders, including Mr. Barr pursuant to which the Stockholders were granted the right to register their shares for resale on a registration statement to be filed by the Company within 60 days following the Closing Date, was terminated pursuant to a Termination and Release Agreement Relating to Registration Rights Agreement. Reference to, and descriptions of the Purchase Agreement, Termination and Release Relating to the Escrow Agreement and Termination and Release Agreement Relating to Registration Rights Agreement, as set forth above in this Item 6 are qualified in their entirety by reference to the copies of the Purchase Agreement, Termination and Release Relating to the Escrow Agreement, Termination and Release Agreement Relating to the Contribution Agreement and Termination and Release Agreement Relating to Registration Rights Agreement, included as Exhibits 99.1, 99.2 and 99.3, respectively, to this Amendment No. 1 to Schedule 13D and incorporated in this Item 6 in their entirety. To the knowledge of the Reporting Person on the date hereof, except to the extent set forth herein, the Reporting Person does not have any other contracts, arrangements, understandings or relationship (legal or otherwise) with any person with respect to securities issued by the Issuer, including, but not limited to, transfer or voting of any such securities, finder's fees, joint ventures, loan or option arrangements, puts or calls, guarantees or profits, divisions or profits or loss or the giving or withholding of proxies. Item 7. Material to be Filed as Exhibits - --------------------------- ---------------------------------------------------- Exhibit No. Description - --------------------------- ---------------------------------------------------- 99.1 Purchase Agreement, dated as of October 1, 2006, by and among Tejas Incorporated, Capital & Technology Advisors, Inc. and the persons listed on the signature pages thereof. - --------------------------- ---------------------------------------------------- 99.2 Termination and Release Agreement relating to Escrow Agreement, dated as of October 1, 2006, by and among Tejas Incorporated, Winchester Development LLC, Wayne Barr, Jr. ("Barr"), and HSBC Bank USA, National Association, as escrow agent. - --------------------------- ---------------------------------------------------- 99.3 Termination and Release Agreement relating to Registration Rights Agreement, dated as of October 1, 2006, by and among Tejas Incorporated and the persons listed on the signature pages thereof. - --------------------------- ---------------------------------------------------- SIGNATURE After reasonable inquiry and to the best of the undersigned's knowledge and belief, the undersigned certifies that the information set forth in this statement is true, complete and correct. Dated: October 1, 2006 By: /s/ Wayne Barr, Jr. Name: Wayne Barr, Jr. EX-99.1 2 tejas_ex9901.txt PURCHASE AGR EXHIBIT 99.1 PURCHASE AGREEMENT DATED AS OF OCTOBER 1, 2006 BY AND AMONG TEJAS INCORPORATED, CAPITAL & TECHNOLOGY ADVISORS, INC. AND THE PERSONS AND ENTITIES LISTED ON THE SIGNATURE PAGE HERETO TABLE OF CONTENTS Page ---- ARTICLE I DEFINITIONS..........................................................1 Section 1.01 Definitions................................................1 Section 1.02 Other Definitional Provisions..............................3 ARTICLE II PURCHASE AND SALE...................................................4 Section 2.01 Sale and Transfer of Tejas Shares..........................4 Section 2.02 Sale and Transfer of Company Shares........................4 Section 2.03 Closing....................................................4 ARTICLE III REPRESENTATIONS AND WARRANTIES OF TEJAS............................4 Section 3.01 Organization; Authority....................................4 Section 3.02 Execution of the Agreement.................................5 Section 3.03 Agreement Binds the Company................................5 Section 3.04 No Conflicts...............................................5 Section 3.05 Title of Company Shares....................................5 Section 3.06 Brokers....................................................5 Section 3.07 Consents; Governmental Approvals...........................5 Section 3.08 SEC Filings; Financial Statements..........................6 ARTICLE IV REPRESENTATIONS AND WARRANTIES OF THE STOCKHOLDERS..................6 Section 4.01 Organization; Authority....................................6 Section 4.02 Agreement Binds the Stockholders...........................7 Section 4.03 No Conflicts...............................................7 Section 4.04 Title to Tejas Stock.......................................7 Section 4.05 Consents; Governmental Approvals...........................7 Section 4.06 Investment Representations.................................7 Section 4.07 Brokers....................................................8 ARTICLE V REPRESENTATION AND WARRANTY OF THE COMPANY...........................8 Section 5.01 No Pending or Contemplated Opportunities...................8 -i- ARTICLE VI COVENANTS OF THE PARTIES............................................8 Section 6.01 Commercially Reasonable Efforts............................8 Section 6.02 Termination of the Agreements..............................9 Section 6.03 Stockholder Spousal Consent................................9 Section 6.04 Stock Options..............................................9 Section 6.05 Resignation of the Company Board of Directors..............9 Section 6.06 Termination of Tejas Intercompany Receivable...............9 Section 6.07 Directors and Officer and Insurance Continuation...........9 Section 6.08 Release of Stockholders and Tejas Affiliates...............9 Section 6.09 COBRA Coverage.............................................9 Section 6.10 Further Assurances........................................10 Section 6.11 Tax Reporting.............................................10 ARTICLE VII CONDITIONS PRECEDENT..............................................10 Section 7.01 Conditions to Obligations of Tejas and Stockholders.......10 Section 7.02 Conditions to Obligations of Tejas........................10 Section 7.03 Conditions to Obligations of the Stockholders.............11 ARTICLE VIII INDEMNIFICATION..................................................12 Section 8.01 Survival of Representations and Warranties................12 Section 8.02 Indemnification of Tejas..................................12 Section 8.03 Indemnification of the Company and the Stockholders.......13 Section 8.04 Procedures for Indemnification............................13 Section 8.05 Sole Remedy...............................................14 Section 8.06 Continuation of the Company...............................14 ARTICLE IX GENERAL PROVISIONS.................................................14 Section 9.01 Dispute Resolution........................................14 Section 9.02 Expenses..................................................15 Section 9.03 No Third-Party Beneficiaries..............................15 Section 9.04 Entire Agreement..........................................15 Section 9.05 Succession and Assignment.................................15 Section 9.06 Counterparts and Facsimile Signatures.....................15 Section 9.07 Headings..................................................16 Section 9.08 Notices...................................................16 Section 9.09 Governing Law and Jurisdiction............................17 Section 9.10 Amendments and Waivers....................................17 Section 9.11 Severability..............................................17 Section 9.12 Construction..............................................17 Section 9.13 Specific Performance......................................17 -ii- Schedule 1 Employment Agreements Schedule 2 Non-Compete Agreements Schedule 3 Tejas Common Stock Schedule 4 Company Common Stock Schedule 5 Stock Options Schedule 6 Company Pending or Contemplated Fee-Generating Matters, Arrangements, Proposals or Opportunities Schedule 7 Board of Directors of Company Exhibit A Form of Termination and Release Agreement for Merger Agreement Exhibit B Form of Termination and Release Agreement Relating to Escrow Agreement Exhibit C Form of Termination and Release Agreement Relating to Registration Rights Agreement Exhibit D Form of Termination and Release Agreement Relating to Non-Compete Agreement Exhibit E Form of Termination and Release Agreement Relating to Employment and Confidentiality Agreement Exhibit F Form of Spousal Consent Exhibit G Form of Release Relating to Stock Options Exhibit H Form of Release for Stockholders Who Served as Officers and Directors of Tejas and the Company Exhibit I Form of Release for Tejas Affiliates Who Served as Officers and Directors of the Company Exhibit J Form of Employee Letter -iii- PURCHASE AGREEMENT (this "Agreement") dated October 1, 2006, among Tejas Incorporated, a Delaware corporation ("Tejas"), Capital & Technology Advisors, Inc., a Delaware corporation (the "Company") and the persons and entities listed on the signature page hereto (each, a "Stockholder" and, collectively, the "Stockholders"). All capitalized terms used and not otherwise defined herein shall have the same meaning as in the Merger Agreement (as defined below). WHEREAS, Tejas, the Company, Tejas Acquisition Corp. ("Sub"), and the Stockholders entered into an agreement and plan of merger (the "Merger Agreement") on July 1, 2005 pursuant to which Sub merged with and into the Company upon the terms and subject to the condition of the Merger Agreement; WHEREAS, the Stockholders own the respective shares of common stock of Tejas (the "Tejas Shares") set forth opposite such Stockholder's name in the second column on Schedule 3; WHEREAS, Tejas owns all of the outstanding shares of the common stock of the Company (the "Company Shares"); WHEREAS, upon the terms and subject to the conditions set forth herein, the parties hereto desire that (i) the Stockholders sell and transfer the Tejas Shares to Tejas, and Tejas purchase the Tejas Shares from the Stockholders and (ii) Tejas sell and transfer the Company Shares to the Stockholders, and the Stockholders purchase the Company Shares from Tejas, and WHEREAS, the Stockholders are selling and transferring the Tejas Shares to Tejas in consideration for the Company Shares and the releases from Tejas contemplated hereby. NOW, THEREFORE, in consideration of the representations, warranties, covenants and agreements contained in this Agreement, the parties agree as follows: ARTICLE I DEFINITIONS Section 1.01 DEFINITIONS. For purposes of this Agreement: "AAA" shall have the meaning set forth in SECTION 9.01 hereof. "ABBRUZZESE" shall mean Jared E. Abbruzzese, Sr. "BARR" shall mean Wayne Barr, Jr. "CLOSING" shall have the meaning set forth in SECTION 2.03 hereof. -1- "CLOSING DATE" shall have the meaning set forth in SECTION 2.03 hereof. "COMPANY" shall have the meaning set forth in the recitals. "COMPANY INDEMNIFIED PARTIES" shall have the meaning set forth in SECTION 8.03 hereof. "COMPANY SHARES" shall have the meaning set forth in the recitals. "EMPLOYMENT AGREEMENTS" means each of the employment and confidentiality agreements listed on SCHEDULE 1. "ESCROW AGREEMENT" means that certain Escrow Agreement, dated as of July 1, 2005, by and among Tejas, the Company, Niskayuna Development LLC (now known as Winchester Development LLC), Barr, and HSBC Bank USA, National Association, as escrow agent. "ESCROWED PROPERTY" means the 309,316 shares of Tejas common stock that was deposited by Niskayuna Development LLC (now known as Winchester Development LLC) and Barr in escrow pursuant to the Escrow Agreement plus any dividends or other distributions relating thereto and any proceeds from the sale of the such shares. "GOVERNMENTAL AGENCY" means any federal, state, local, foreign or other governmental agency, instrumentality, commission, authority, board or body. "INDEMNIFIED PARTY" shall have the meaning set forth in SECTION 8.04(a) hereof. "INDEMNIFYING PARTY" shall have the meaning set forth in SECTION 8.04(a) hereof. "KNOWLEDGE OF TEJAS" means the actual knowledge of any of the following persons: the Chairman, the President and the General Counsel of Tejas. "KNOWLEDGE OF THE COMPANY" means the actual knowledge of any of the Stockholders. "LOSS" shall have the meaning set forth in SECTION 8.02(a) hereof. "MERGER AGREEMENT" shall have the meaning set forth in the recitals. "NON-COMPETE AGREEMENTS" means each of the non-compete agreements listed on SCHEDULE 2. "REGISTRATION RIGHTS AGREEMENT" means that certain Registration Rights Agreement, dated as of July 1, 2005, by and among Tejas and the Stockholders. "STOCKHOLDER" shall have the meaning set forth in the recitals. "SUB" shall have the meaning set forth in the recitals. -2- "SUBSIDIARY" of any person means another person, an amount of the voting securities, other voting ownership or voting partnership interests of which is sufficient to elect at least a majority of its Board of Directors or other governing body (or, if there are no such voting interests, fifty percent (50%) of more of the equity interests of which) which is owned directly or indirectly by such first person. "TEJAS" shall have the meaning set forth in the recitals. "TEJAS COMMON STOCK" means the common stock of Tejas. "TEJAS INDEMNIFIED PARTIES" shall have the meaning set forth in SECTION 8.02(a) hereof. "TEJAS INTERCOMPANY RECEIVABLE" means the intercompany receivable that the Company owes Tejas existing on the Closing Date. "TEJAS SHARES" shall have the meaning set forth in the recitals. "TEJAS STOCK OPTIONS" means the stock options provided to the employees of the Company and which are set forth on SCHEDULE 5 . "TOTAL OUTSTANDING COMPANY SHARES" means the total number of shares of Company Common Stock outstanding on the Closing Date. "TRANSACTIONS" shall have the meaning set forth in SECTION 3.01(a) hereof. "TRANSACTION AGREEMENTS" shall mean the Agreement and the termination and release agreements required under SECTION 6.02. Section 1.02 OTHER DEFINITIONAL PROVISIONS. (a) The words "hereof", "herein", "hereunder" and words of similar import when used in this Agreement shall refer to this Agreement as a whole and not to any particular provision of this Agreement, and article, section, subsection, schedule and exhibit references are to this Agreement unless otherwise specified. (b) The meanings given to terms defined or incorporated by reference herein shall be equally applicable to both the singular and plural forms of such terms. (c) Any reference in this Agreement to any representation, warranty or covenant "deemed" to have been made is intended to encompass only representations, warranties or covenants that are expressly stated to be repeated on or as of the dates following the execution and delivery of this Agreement, and no such reference shall be interpreted as a reference to any implicit, inferred, tacit or otherwise unexpressed representation, warranty or covenant. (d) The words "include", "includes" or "including" shall be interpreted as if followed, in each case, by the phrase "without limitation". -3- (e) The use of the masculine, feminine or neuter gender herein shall not limit any provision of this Agreement. ARTICLE II PURCHASE AND SALE Section 2.01 SALE AND TRANSFER OF TEJAS SHARES. Upon the terms and subject to the conditions of this Agreement, at the Closing (as defined below), each of the Stockholders shall sell, convey, assign, transfer and deliver to Tejas, and Tejas shall purchase and acquire from the Stockholders, each of such Stockholder's rights, title and interests in and to the Tejas Shares, free and clear of all Encumbrances; PROVIDED, however, that the parties hereto acknowledge that transfer of the Escrowed Property is subject to termination of the Escrow Agreement and that delivery of the certificates representing the Escrowed Property shall be made by the Escrow Agent pursuant to the terms of the Termination and Release Agreement Relating to Escrow Agreement attached hereto as EXHIBIT B. Section 2.02 SALE AND TRANSFER OF COMPANY SHARES. Upon the terms and subject to the conditions of this Agreement, in consideration of the aforesaid sale, conveyance, assignment, transfer and delivery to Tejas of the Tejas Shares, Tejas shall sell, convey, assign, transfer and deliver to each of Stockholders, and each Stockholder shall accept and acquire from Tejas, all of Tejas' rights, title and interests in and to the certain number of Company Shares as set forth opposite Stockholder's name in the second column on SCHEDULE 4. Section 2.03 CLOSING. The closing of the transactions contemplated hereby (the "CLOSING") shall be the date (referred to herein as the "CLOSING DATE") on which this Agreement is executed by all parties hereto. ARTICLE III REPRESENTATIONS AND WARRANTIES OF TEJAS Tejas represents and warrants to the Stockholders as follows: Section 3.01 ORGANIZATION; AUTHORITY. (a) POWER TO ENTER INTO THE AGREEMENT. Tejas is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware. Tejas has the power and authority to execute and deliver this Agreement and each other document to be executed and delivered by it under this Agreement, to perform its obligations under such documents, and to consummate the transactions contemplated by or pursuant to this Agreement and any ancillary documents (the "TRANSACTIONS"). (b) AUTHORIZATION OF THE AGREEMENT. Tejas has, by requisite action, authorized the execution, delivery and performance of this Agreement and each other document to be executed and delivered by it under this Agreement, and the consummation of the Transactions to which it is a party in accordance with Applicable Law and the organizational documents. -4- Section 3.02 EXECUTION OF THE AGREEMENT. Tejas has duly executed and delivered this Agreement and each other document to be executed and delivered by it under this Agreement. Section 3.03 AGREEMENT BINDS THE COMPANY. This Agreement and each other document to be delivered by Tejas under this Agreement constitutes the valid and legally binding obligation of Tejas, enforceable against it in accordance with its terms (subject to bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting creditors' rights generally and to general principles of equity, regardless of whether enforcement is sought in a proceeding in equity or at law). Section 3.04 NO CONFLICTS. Tejas' execution, delivery and performance of this Agreement, and of each other document to be executed and delivered by them under this Agreement, and the consummation of the Transactions, will not: (a) conflict with, or result in a breach of, a provision of Tejas' organizational documents; (b) conflict with, or result in a breach of, a provision of a contract, agreement or undertaking to which the Tejas is a party, or by which it or any of its assets or properties is bound; (c) give rise to a right of termination, cancellation, amendment or acceleration of an obligation or loss of a benefit affecting, or result in the imposition of any Liens on, any of its assets; or (d) violate Applicable Law. Section 3.05 TITLE OF COMPANY SHARES. Tejas is the record and beneficial owner of the Company Shares, with good and marketable title thereto, free and clear of all Encumbrances and upon delivery at the Closing, the Stockholders will receive good and valid title to the Company Shares, free and clear of any and all Encumbrances. Section 3.06 BROKERS. No Broker is entitled to any brokerage, finder's or other fee or commission in connection with the Transactions based upon arrangements made by or on behalf of Tejas. Section 3.07 CONSENTS; GOVERNMENTAL APPROVALS. Tejas is not required to obtain any material order, consent, approval or authorization of, or to make any declaration or filing with, any Governmental Agency or any other person or entity in connection with its: (a) executing and delivering this Agreement and each other document to be executed and delivered by it under this Agreement; (b) performing its obligations under this Agreement and each other document to be executed and delivered by it under this Agreement; and (c) consummating the Transactions. -5- Section 3.08 SEC FILINGS; FINANCIAL STATEMENTS. To the Knowledge of Tejas: (a) Tejas has timely filed or otherwise transmitted all forms, reports, statements, certifications and other documents (including all exhibits, amendments and supplements thereto) required to be filed by it with the SEC since June 1, 2005 (all such forms, reports, statements, certificates and other documents filed by Tejas with the SEC, whether or not required to be filed, collectively, the "Tejas SEC Reports"). Each of Tejas' SEC Reports, as amended, complied as to form in all material respects with the applicable requirements of the Securities Act, the Securities Exchange Act of 1934 and the rules and regulations promulgated thereunder (the "Exchange Act"), each as in effect on the date so filed and with then applicable accounting standards. None of the Tejas SEC Reports, when filed as amended, contained any untrue statement of a material fact or omitted to state a material fact required to be stated or incorporated by reference therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. (b) Each of the consolidated financial statements of Tejas and its Subsidiaries (including the related notes and schedules) included in the Tejas SEC Reports comply as to form in all material respect with the published rules and regulations of the SEC applicable thereto and have been prepared in accordance with generally accepted accounting principles applied on a consistent basis throughout the periods involved (except as may be indicated in the notes thereto). Each of the consolidated balance sheets of the Tejas and its Subsidiaries included in the Tejas SEC Reports (including the related notes and schedules) fairly presents, in all material respects, the consolidated financial position of Tejas and its Subsidiaries at the respective dates thereof, and each of the related consolidated statements of operations, cash flows and changes in stockholders' equity included in the Tejas SEC Reports (including any related notes and schedules) fairly presents, in all material respects, the results of operations and cash flows of Tejas and its Subsidiaries for the periods indicated (subject, in the case of unaudited statements, to normal period-end adjustments). ARTICLE IV REPRESENTATIONS AND WARRANTIES OF THE STOCKHOLDERS Each Stockholder hereby severally represents, warrants, and agrees that: Section 4.01 ORGANIZATION; AUTHORITY. (a) POWER TO ENTER INTO THE AGREEMENT. Each Stockholder has the power and authority, and with respect to individuals, the competency, to execute and deliver this Agreement and each other document to be executed and delivered by it under this Agreement, to perform its obligations under such documents, and to consummate the Transactions contemplated by or pursuant to this Agreement. (b) AUTHORIZATION OF THE AGREEMENT. Each Stockholder has, by requisite action, authorized the execution, delivery and performance of this Agreement and each other document to be executed and delivered by it under this Agreement, and the consummation of the Transactions to which it is a party in accordance with Applicable Law. -6- (c) EXECUTION OF THE AGREEMENT. Each Stockholder has duly executed and delivered this Agreement and each other document to be executed and delivered by it under this Agreement. Section 4.02 AGREEMENT BINDS THE STOCKHOLDERS. This Agreement and each other document to be executed and delivered by each Stockholder under this Agreement constitutes the valid and legally binding obligation of the Stockholder, enforceable against it in accordance with its terms (subject to bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting creditors' rights generally and to general principles of equity, regardless of whether enforcement is sought in a proceeding in equity or at law). Section 4.03 NO CONFLICTS. Each Stockholder's execution, delivery and performance of this Agreement, and of each other document to be executed and delivered by it under this Agreement, and the consummation of the Transactions, will not: (a) conflict with, or result in a breach of, a provision of a contract, agreement or undertaking to which the Stockholder is a party, or by which it or any of its assets or properties is bound; (b) give rise to a right of termination, cancellation, amendment or acceleration of an obligation or loss of a benefit affecting, or result in the imposition of any Liens on, any of its assets; or (c) violate Applicable Law. Section 4.04 TITLE TO TEJAS STOCK. Each Stockholder is the record and beneficial owner of the Tejas Stock being conveyed, with good and marketable title thereto, free and clear of all Encumbrances (provided, however, that Encumbrances relating to the Merger Agreement, Escrow Agreement and Registration Rights Agreement shall be terminated only upon termination of each such agreement pursuant to the termination agreements attached hereto as EXHIBITS A, B AND C hereof) and upon delivery at the Closing, Tejas will receive good and valid title to the Tejas Shares, free and clear of any and all Encumbrances. Section 4.05 CONSENTS; GOVERNMENTAL APPROVALS. No Stockholder is required to obtain any order, consent, approval or authorization of, or to make any declaration or filing with, any Governmental Agency or any other person or entity in connection with: (a) executing and delivering this Agreement and each other document to be executed and delivered by them under this Agreement; and (b) performing any of their obligations under this Agreement and each other document to be executed and delivered by them under this Agreement. Section 4.06 INVESTMENT REPRESENTATIONS. (a) Each Stockholder is an Accredited Investor. -7- (b) Each Stockholder, by reason of his or her business and financial experience has such knowledge, sophistication and experience in financial and business matters and in making investment decisions of this type that he/she is capable of (i) evaluating the merits and risks of an investment in the Company Common Stock and making an informed investment decision, (ii) protecting his or her own interest and (iii) bearing the economic risk of such investment. No Stockholder has retained a purchaser's representative with respect to the investment in Company Common Stock. (c) Each Stockholder is acquiring Company Common Stock for investment for the Stockholder's own account, not as a nominee or agent and not with the view to, or any intention of, a resale or distribution thereof, in whole or in part. Section 4.07 BROKERS. No Broker is entitled to any brokerage, finder's or other fee or commission in connection with the Transactions based upon arrangements made by or on behalf of any Stockholder. ARTICLE V REPRESENTATION AND WARRANTY OF THE COMPANY The Company hereby represents and warrants and agrees that: NO ARRANGEMENTS PENDING OR SUBJECT TO BINDING TERM SHEET. Except as set forth in SCHEDULE 6 and except for arrangements that are set forth on the books and records of the Company, to the Knowledge of the Company, there are no fee-generating arrangements that are currently pending or the subject of binding term sheets that would or should inure to the benefit of the Company. ARTICLE VI COVENANTS OF THE PARTIES Section 6.01 COMMERCIALLY REASONABLE EFFORTS. Upon the terms and subject to the conditions set forth in this Agreement, each of the parties agrees to use all commercially reasonable efforts to take, or cause to be taken, all actions, and to do, or cause to be done, and to assist and cooperate with the other parties in doing, all things necessary, proper or advisable to consummate and make effective, in the most expeditious manner practicable, the Transactions contemplated by this Agreement, including (i) the obtaining of all necessary actions or nonactions, waivers, consents and approvals from Governmental Entities and the making of all necessary registrations and filings and the taking of all steps as may be necessary to obtain an approval or waiver from, or to avoid an action or proceeding by, any Governmental Entity, (ii) the obtaining of all necessary consents, approvals or waivers from third parties, (iii) the defending of any lawsuits or other legal proceedings, whether judicial or administrative, challenging this agreement or the consummation of the Transactions contemplated by this Agreement, and (iv) the execution and delivery of any additional instruments necessary to consummate the transactions contemplated by, and to fully carry out the purposes of, this Agreement. -8- Section 6.02 TERMINATION OF THE AGREEMENTS. Each of the parties agree that at or prior to the Closing Date, the Merger Agreement, the Escrow Agreement, the Registration Rights Agreement, the Non-Compete Agreements, and the Employment Agreements will be terminated and that a termination and release agreement with respect to each of such agreements will be executed, substantially in the forms attached hereto as EXHIBIT A (Merger Agreement), EXHIBIT B (Escrow Agreement), EXHIBIT C (Registration Rights Agreement), EXHIBIT D (Non-Compete Agreement) and EXHIBIT E (Employment Agreement). Section 6.03 STOCKHOLDER SPOUSAL CONSENT. Any Stockholder whose interest in the Tejas Common Stock may be subject to community or marital property on the Closing Date agrees to obtain and deliver to Tejas an executed consent of spouse substantially in the form of EXHIBIT F hereto, in each case effective at or before the Closing Date. Section 6.04 STOCK OPTIONS. The Stockholders agree that Tejas will cancel the Tejas Stock Options effective as of the Closing Date and Abbruzzese and Barr shall use their good faith reasonable efforts to cause each employee whose Stock Options have been cancelled by Tejas to execute a release substantially in the form of EXHIBIT G hereto, in each case effective at or before the Closing Date. Section 6.05 RESIGNATION OF THE COMPANY BOARD OF DIRECTORS. Tejas agrees to cause the Company to obtain written letters of resignation from each of the current members of the Company Board of Directors, in each case effective immediately upon the Closing Date, and the successor directors listed in SCHEDULE 7 hereof shall be elected to the Company's Board of Directors on the Closing Date. Section 6.06 TERMINATION OF TEJAS INTERCOMPANY RECEIVABLE. Tejas agrees to cancel the Tejas Intercompany Receivable on or before the Closing Date. Section 6.07 DIRECTORS AND OFFICER AND INSURANCE CONTINUATION. Tejas shall use all commercially reasonable efforts to maintain directors and officers liability insurance in amounts and on terms at least as favorable as are provided to the continuing members of the Board of Directors and officers of Tejas for the benefit of each of the Stockholders who is currently covered by such insurance. Section 6.08 RELEASE OF STOCKHOLDERS AND TEJAS AFFILIATES. Each of the Stockholders, the Company and Tejas agree to execute a release relating to such Stockholder's service as an officer or director of Tejas or the Company, such release to be substantially in the form attached hereto as EXHIBIT H and in each case effective at or before the Closing Date. The Company and each Tejas affiliate that served as an officer or director of the Company agree to execute a release relating to such Tejas affiliate's service as an officer or director of the Company, substantially in the form of EXHIBIT I hereto and in each case effective at or before the Closing Date. Section 6.09 COBRA COVERAGE. Tejas shall provide each employee of the Company who elects COBRA the opportunity to purchase up to 18 months of coverage commencing on the date of this Agreement. -9- Section 6.10 FURTHER ASSURANCES. Each of Tejas and the Company shall cooperate with one another to effect, and use all reasonable efforts to ensure, a smooth transition, including but not limited to transitions relating to personnel and employment matters, financial books and records and reporting requirements, and regulatory matters. Section 6.11 TAX REPORTING. For U.S. federal, state and local income tax purposes, each of Tejas and each Stockholder acknowledges and agrees that it or he shall (i) report the distribution of Company Shares as a taxable distribution from Tejas in redemption of each Stockholder's Tejas Shares and the termination of the agreements set forth in Section 7.01(a) of this Agreement, and (ii) treat the Company Shares received in the transaction as having a fair market value equal to the fair market value of such Stockholder's Tejas Shares (determined pursuant to the valuation described in Section 7.03(g) of this Agreement). ARTICLE VII CONDITIONS PRECEDENT Section 7.01 CONDITIONS TO OBLIGATIONS OF TEJAS AND STOCKHOLDERS. The obligations of Tejas and of the Stockholders to effect the Transactions on the Closing Date are subject to the satisfaction of the following conditions precedent on or before the Closing Date: (a) TERMINATION OF AGREEMENTS. The Merger Agreement, the Escrow Agreement, the Registration Rights Agreement, the Non-Compete Agreements, and the Employment Agreements shall have been terminated and a termination and release agreement with respect to each of such agreements shall have been executed, substantially in the forms attached hereto as EXHIBIT A (Merger Agreement), EXHIBIT B (Escrow Agreement), EXHIBIT C (Registration Rights Agreement), EXHIBIT D (Non-Compete Agreement), EXHIBIT E (Employment Agreement). (b) TERMINATION OF STOCK OPTIONS. The Tejas Stock Options shall have been cancelled, and each employee whose stock options has been cancelled (with the exception of Tim deCamp) shall have executed a release substantially in the form of EXHIBIT B hereto, in each case effective at or before the Closing Date. (c) EMPLOYEE LETTERS. Each of Jared E.Abbruzzese, Sr. and Wayne Barr, Jr. shall have executed a letter substantially in the form of EXHIBIT J hereto, in each case effective at or before the Closing Date. Section 7.02 CONDITIONS TO OBLIGATIONS OF TEJAS. The obligation of Tejas to effect the Transactions on the Closing Date is further subject to the satisfaction of the following conditions precedent on or before the Closing Date: (a) DELIVERY OF TEJAS SHARES. Each of the Stockholders shall have delivered, or directed the Escrow Agent under the Escrow Agreement to deliver, to Tejas the certificates representing each Stockholder's ownership of the Tejas Shares, free and clear of all Encumbrances, duly endorsed in blank for transfer or accompanied by a stock power duly executed in blank. -10- (b) REPRESENTATIONS AND WARRANTIES. The representations and warranties of the Stockholders contained in this Agreement shall be true and correct when made and shall be true and correct as of the Closing Date, as if made as of the Closing Date (except for those representations and warranties that address matters as of a particular date, which need be true only as of such date). (c) AGREEMENTS AND COVENANTS. Each Stockholder shall have performed and complied with all covenants. agreements and conditions required by this Agreement to be performed or complied with by such parties prior to or on the Closing Date. (d) CONSENTS AND APPROVALS. All consents, waivers, notices, authorizations and approvals shall have been duly obtained in form and substance reasonably satisfactory to Tejas and shall be in full force and effect on the Closing Date. (e) STOCKHOLDER SPOUSAL CONSENT. Any Stockholder whose interest in the Tejas Common Stock may be subject to community or marital property on the Closing Date shall have obtained and delivered to Tejas an executed consent of spouse in the form of EXHIBIT A hereto. (f) KEY MAN INSURANCE. Tejas shall have cancelled the key man life insurance policies for the benefit of Tejas covering Abbruzzese and Barr in an amount equivalent to forty five million dollars ($45 million) and five million dollars ($5 million), respectively. Section 7.03 CONDITIONS TO OBLIGATIONS OF THE STOCKHOLDERS. The obligation of the Stockholders to effect the Transactions on the Closing Date is further subject to the conditions precedent, which may be waived by the Purchaser, that the conditions set forth below shall have been satisfied on or before the Closing Date: (a) DELIVERY OF COMPANY SHARES. Tejas shall have delivered to the Stockholders the certificates representing the Company Shares, free and clear of all Encumbrances, duly endorsed in blank for transfer or accompanied by a stock power duly executed in blank. (b) REPRESENTATIONS AND WARRANTIES. The representations and warranties of Tejas contained in this Agreement shall be true and correct when made and shall be true and correct as of the Closing Date, as if made as of the Closing Date (except for those representations and warranties that address matters as of a particular date, which need be true only as of such date). (c) AGREEMENTS AND COVENANTS. Tejas shall have performed and complied with all covenants, agreements and conditions required by this Agreement to be performed or complied with by such parties prior to or on the Closing Date. (d) CONSENTS AND APPROVALS. All consents, waivers, notices, authorizations and approvals shall have been duly obtained in form and substance reasonably satisfactory to the Stockholders and shall be in full force and effect on the Closing Date. -11- (e) COMPANY BOARD OF DIRECTORS. The Stockholders shall have received written letters of resignation from each of the current members of the Company Board of Directors, in each case effective immediately upon the Closing Date. The board of directors of the Company shall be constituted as specified in Section 5.10 hereof. (f) TERMINATION OF TEJAS INTERCOMPANY RECEIVABLE. Tejas shall have cancelled the Tejas Intercompany Receivable. (g) VALUATION. Tejas shall have received a valuation of the Tejas Shares from Sandler O'Neill & Partners, L.P., an independent appraisal firm, and shall have been authorized to, and shall have, delivered a copy of such report to each of the Stockholders. ARTICLE VIII INDEMNIFICATION Section 8.01 SURVIVAL OF REPRESENTATIONS AND WARRANTIES. All representations and warranties of the parties contained in this Agreement or any other Transaction Agreement shall survive the Closing. Section 8.02 INDEMNIFICATION OF TEJAS. (a) After the Closing, the Company shall indemnify, defend and hold harmless Tejas and its affiliates and its and their respective officers, directors, employees, and agents (the "TEJAS INDEMNIFIED PARTIES") from any and all losses, costs, expenses (including, without limitation, reasonable attorneys' and independent accountants' fees and disbursements), liabilities, damages (excluding incidental, consequential or punitive damages), fines, penalties, charges, assessments, judgments, settlements, claims, causes of action and other obligations of any nature whatsoever (individually, a "LOSS" and collectively, "LOSSES") that the Tejas Indemnified Parties suffer related to, arising out of, or in connection with (i) Tejas' ownership of the Company Shares during the period from July 1, 2005 to the date of this Agreement, other than for Losses arising from (x) matters relating to the financial, accounting and payroll books and records of the Company, the maintenance of such books and records and any claims arising from misstatements or omissions relating thereto, unless such Losses arise from facts underlying the information contained in such books and records or from information provided by the Company or its officers or employees (including officers and employees which are Stockholders but excluding officers or employees who are Tejas Indemnified Parties) to Tejas or its representatives and included in such books and records, in which case for avoidance of doubt, such Losses shall be indemnified under this clause (x), (y) any regulatory matters arising out of or relating to the Company's affiliation with a regulated broker-dealer, unless such Losses arise from an act or omission of the Company itself or any of its officers or employees (including officers or employees who are Stockholders but excluding officers or employees who are Tejas Indemnified Parties) or the Stockholders, in which case for avoidance of doubt, such Losses shall be indemnified under this clause (y), and (ii) the fact that such Tejas Indemnified Party, or a person of whom such Tejas Indemnified Party is the legal representative, is or was a director or officer of the Company; provided that such indemnification shall be provided only as and to the extent that such person would have been entitled to indemnification under the certificate of incorporation and by-laws of the Company in effect on the date hereof and (z) any breach of the representation and warranty of the Company contained in Section 5.01. -12- (b) After the Closing, each Stockholder shall, severally and not jointly, indemnify, defend and hold harmless the Tejas Indemnified Parties from any and all Losses that the Tejas Indemnified Parties suffer related to, arising out of, or in connection with any breach of any representation, warranty or covenant of such Stockholder contained herein. Section 8.03 INDEMNIFICATION OF THE COMPANY AND THE STOCKHOLDERS. After the Closing, Tejas shall indemnify, defend and hold harmless the Company and each of the Stockholders, the Company's officers, directors, employees, and agents and each of the Company's and the Stockholder's respective affiliates (the "COMPANY INDEMNIFIED PARTIES") from any and Losses that the Company Indemnified Parties suffer related to, arising out of, or in connection with (i) the Company's ownership by, and affiliation with, Tejas during the period from July 1, 2005 to the date of this Agreement, unless such Losses arise from an act or omission of the Company itself or any of its officers or employees (including officers or employees who are Stockholders but excluding officers or employees who are Tejas Indemnified Parties) or the Stockholders, in which case for avoidance of doubt, such Losses shall not be indemnified under this clause (i), (ii) the fact that such Company Indemnified Party is or was a director or officer of Tejas; provided that such indemnification shall be provided only as and to the extent that such person would have been entitled to indemnification under the certificate of incorporation and by-laws of Tejas in effect on the date hereof, and (iii) any breach of any representation, warranty or covenant of Tejas contained herein. Section 8.04 PROCEDURES FOR INDEMNIFICATION. (a) Promptly after receipt by a Tejas Indemnified Party or a Company Indemnified Party (such party, the "INDEMNIFIED PARTY") of written notice of the assertion or the commencement of any proceeding by a third-party with respect to any matter referred to in Sections 8.02 (other than excepted matters) or 8.03, as applicable, the Indemnified Party shall give written notice thereof to the party(ies) responsible for indemnification pursuant to Sections 8.02 or 8.03 hereof (the "INDEMNIFYING PARTY"), and thereafter shall keep the Indemnifying Party reasonably informed with respect thereto; provided, however, that failure of the Indemnified Party to give the Indemnifying Party notice as provided herein shall not relieve the Indemnifying Party of their obligations hereunder, except to the extent that the Indemnifying Party are prejudiced thereby. A claim for indemnification for any matter not involving a third-party proceeding may be asserted by notice to the Indemnifying Party and shall be paid promptly after such notice. (b) If the facts pertaining to a Loss arise out of the claim of any third party, or if there is any claim against a third party available by virtue of the circumstances of the Loss, the Indemnifying Party may assume the defense or the prosecution thereof by prompt written notice to the Indemnified Party, including the employment of counsel or accountants, at its sole cost and expense. In connection therewith, the Indemnifying Party shall acknowledge that such claim is the proper subject of indemnification under Section 8.02 or 8.02, as applicable. The Indemnified Party shall have the right to employ counsel separate from counsel employed by the Indemnifying Party in any such action and to participate therein, but the fees and expense of such counsel employed by the -13- Indemnified Party shall be at its sole cost and expense. Neither the Indemnifying Party nor the Indemnified Party shall be liable for any settlement of any such claim effected without their respective prior written consent, which shall not be unreasonably withheld; PROVIDED that if the Indemnifying Party does not assume the defense or prosecution of a claim as provided above without thirty (30) days after notice thereof from the Indemnified Party, the Indemnified Party may settle such claim without the Indemnifying Party's consent. Whether or not the Indemnifying Party chooses to so defend or prosecute such claim, all the parties hereto shall cooperate in the defense or prosecution thereof and shall furnish such records, information and testimony, and attend such conferences, discovery proceedings, hearings, trails and appeals, as may be reasonably requested in connection therewith. Section 8.05 SOLE REMEDY. After the Closing, (x) the rights and remedies set forth in this Article VII shall constitute the sole and exclusive rights and remedies of the Indemnified Parties hereto following the Closing with respect to any breach of a representation and warranty under this Agreement or any of the Losses enumerated in Section 8.02 or 8.03, as applicable, except for Losses attributable to fraud or intentional malfeasance, in which case the aggrieved party shall have recourse to all remedies at law or in equity. Section 8.06 CONTINUATION OF THE COMPANY. The Stockholders agree to maintain the Company's existence and not to liquidate or dissolve the Company through the third anniversary of the Closing (the "Term"). During the Term, the Company shall: (i) continue to own those assets that it owns as of the Closing, which assets shall include, without limitation, fees received or to be received in the form of third party equity, receivables and work in process under contracts to which the Company is a party that were executed on or before the Closing (the "Contracts"), any contractual benefits (including rights to indemnification) under the Contracts, and any revenues earned after the Closing relating to the Contracts, subject to payment of ordinary course liabilities set forth in clause (ii) below; (ii) not incur any liabilities, other than ordinary course liabilities relating to performance of the Contracts such as personnel costs and prorated overhead costs; and (iii) not make any distributions to any Stockholders or their affiliates. ARTICLE IX GENERAL PROVISIONS Section 9.01 DISPUTE RESOLUTION. Resolution of any dispute arising from or in connection with this Agreement, including but not limited to any disputes relating to indemnification pursuant to Article VII, shall be exclusively governed by and settled in accordance with the provisions of this Section 9.01. The parties shall make a good faith attempt to resolve any dispute arising out of or relating to this Agreement through informal negotiation between appropriate representatives of the Stockholders, the Company and Tejas. If at any time either party contends that such negotiations are not leading to a resolution of the dispute, such party may request a meeting of the senior executives from each party. Within ten (10) business days after such notice of a dispute is given, each party shall select appropriate senior executives of each party who shall have the authority to resolve the matter and shall meet to attempt in good faith to negotiate a resolution of the dispute prior to pursuing other available remedies. Discussions and correspondence among the senior executives for purposes of these negotiations shall be treated as confidential information and may not be disclosed without the prior written consent of both parties. In the event that any dispute arising out of or related to this -14- Agreement is not settled by the parties within thirty (30) days after the first meeting of the negotiating senior executives, the dispute will be settled by arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association ("AAA") then in effect, and judgment upon the award rendered by the arbitrator may be entered in any court of competent jurisdiction. Any such arbitration shall be conducted in New York City. Unless otherwise agreed, the arbitration will be presided over by a panel of three arbitrators with one selected by Tejas and one by the Company and the third selected by the arbitrators selected by the parties. The arbitrators shall control the scheduling so as to process the matter expeditiously. The arbitrators may not make any ruling, finding or award that does not conform to the terms and conditions of this Agreement. Either party, before or during any arbitration, may apply to a court of competent jurisdiction for a temporary restraining order or preliminary injunction where such relief is necessary to protect its interests pending completion of the arbitration proceedings. Neither party nor the arbitrators may disclose the evidence or result of any arbitration hereunder without the prior written consent of both parties. Before arbitration or any other form of legal or equitable proceeding, the aggrieved party shall give the other party written notice describing the dispute and amount as to which it intends to initiate action and the prior effort it has made to resolve such dispute. The parties agree that this Agreement involves interstate commerce and, notwithstanding any choice of law provisions in this Agreement, any arbitration hereunder shall be governed by the Federal Arbitration Act (or any successor thereto). Fees and expenses shall be allocated in accordance with the arbitrator's determination based on equitable considerations. In no event shall either party be liable to the other party for any punitive damages. Section 9.02 EXPENSES. Each of the parties shall bear its own costs and expenses (including legal fees and expenses) incurred in connection with this Agreement and the Transactions contemplated hereby. Section 9.03 NO THIRD-PARTY BENEFICIARIES. This Agreement shall not confer any rights or remedies upon any Person other than the parties and their respective successors and permitted assigns. Section 9.04 ENTIRE AGREEMENT. This Agreement, including the Exhibits attached hereto, constitute the entire agreement among the parties and supersedes any prior understandings, agreements, or representations by or among the parties, written or oral, to the extent they relate in any way to the subject matter hereof. Section 9.05 SUCCESSION AND ASSIGNMENT. This Agreement shall be binding upon and inure to the benefit of the parties named herein and their respective successors and permitted assigns. No party may assign either this Agreement or any of its rights, interests, or obligations hereunder without the prior written approval of Tejas and the Company. Section 9.06 COUNTERPARTS AND FACSIMILE SIGNATURES. This Agreement may be executed in two (2) or more counterparts, each of which shall be deemed an original but all of which together shall constitute one and the same instrument. The counterparts of this Agreement may be executed and delivered by facsimile signature by any of the parties to any other party and the receiving party may rely on the receipt of such document so executed and delivered by facsimile as if the original had been received. -15- Section 9.07 HEADINGS. The section headings contained in this Agreement are inserted for convenience only and shall not affect in any way the meaning or interpretation of this Agreement. Section 9.08 NOTICES. All notices, requests, demands, claims, and other communications hereunder will be in writing. Any notice, request, demand, claim, or other communication hereunder shall be deemed properly delivered, given and received when delivered (by hand, by registered mail, by courier or express delivery services or by facsimile); provided that if delivered on a date that is not a Business Day or after 5:00 p.m. on a Business Day (in each case at the place of delivery), such notice, request, demand, claim or other communication shall be deemed delivered on the next succeeding Business Day; provided, further that such notice, request, demand, claim or other communication is delivered to the applicable party at the party's address or facsimile number as set forth below, (a) If to Tejas or the Company prior to the Closing Date, addressed to it at: Tejas Incorporated 8226 Bee Caves Road Austin, TX 78746 Attention: Kurt J. Rechner Fax: 512-347-9074 With a copy to: Cadwalader, Wickersham & Taft LLP One World Financial Center New York, NY 10281 Fax: 212-504-6666 Attention: Dennis J. Block, Esq. (b) If to the Stockholders, addressed to it at: Capital & Technology Advisors, Inc. 18 Corporate Woods Boulevard, 3rd Floor Albany, NY 12211 Attention: Wayne Barr, Jr. Fax: (518) 462-3045 -16- With a copy to: Day, Berry & Howard LLP One International Place Boston, MA 02110 Attention: Sabino Rodriguez III, Esq. Andrea M. Teichman, Esq. Fax: (617) 345-4745 Any party may change the address to which notices, requests, demands, claims, and other communications hereunder are to be delivered by giving the other parties notice in the manner herein set forth. Section 9.09 GOVERNING LAW AND JURISDICTION. This Agreement shall be governed by and construed in accordance with the domestic laws of the State of New York without giving effect to any choice or conflict of law provision or rule (whether of the State of New York or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than the State of New York. Each party hereby consents to the exclusive jurisdiction of any New York state or United States Federal court sitting in the City of New York with respect to all disputes between the parties. Section 9.10 AMENDMENTS AND WAIVERS. This Agreement may be amended by the parties. No amendment of any provision of this Agreement shall be valid unless the same shall be in writing and signed by the parties. No waiver by any party of any provision of this Agreement or any default, misrepresentation, or breach of warranty or covenant hereunder, whether intentional or not, shall be valid unless the same shall be in writing and signed by the party making such waiver, nor shall such waiver be deemed to extend to any prior or subsequent default, misrepresentation, or breach of warranty or covenant hereunder or affect in any way any rights arising by virtue of any prior or subsequent such occurrence. Section 9.11 SEVERABILITY. Any term or provision of this Agreement that is invalid or unenforceable in any situation in any jurisdiction shall not affect the validity or enforceability of the remaining terms and provisions hereof or the validity or enforceability of the offending term or provision in any other situation or in any other jurisdiction. Section 9.12 CONSTRUCTION. The parties have participated jointly in the negotiation and drafting of this Agreement. In the event an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as if drafted jointly by the parties and no presumption or burden of proof shall arise favoring or disfavoring any party by virtue of the authorship of any of the provisions of this Agreement. The words "including", "include" or "includes" shall mean "including without limitation." The parties intend that each representation, warranty and covenant contained herein shall have independent significance. Any reference in this Agreement to a statute shall be to such statute, as amended from time to time, and to the rules and regulations promulgated thereunder. -17- Section 9.13 SPECIFIC PERFORMANCE. The parties hereto agree that if, on or prior to the Closing Date, any of the provisions of this Agreement or any other document contemplated by this Agreement were not performed in accordance with their specific terms or were otherwise breached, irreparable damage would occur, no adequate remedy at law would exist and damages would be difficult to determine, and, therefore, prior to the Closing Date, the parties shall be entitled to specific performance of the terms hereof and thereof, in addition to any other remedy at law or in equity. [SIGNATURE PAGE FOLLOWS] IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first above written. TEJAS INCORPORATED By: /S/ KURT J. RECHNER ------------------------------------ Name: Kurt J. Rechner Title: Authorized Signatory CAPITAL & TECHNOLOGY ADVISORS, INC. By: /S/ WAYNE BARR, JR. ------------------------------------ Name: Wayne Barr, Jr. Title: Authorized Signatory STOCKHOLDERS: WINCHESTER DEVELOPMENT LLC By: /S/ JARED E. ABBRUZZESE, SR. ------------------------------------ Name: Jared E. Abbruzzese, Sr. Title: Authorized Signatory WAYNE BARR, JR. /S/ WAYNE BARR, JR. ---------------------------------------- SHAWN O'DONNELL /S/ SHAWN O'DONNELL ---------------------------------------- PATRICK DOYLE /S/ PATRICK DOYLE ---------------------------------------- JOHN P. BADE /S/ JOHN P. BADE ---------------------------------------- EX-99.2 3 tejas_ex99-2.txt RELEASE AGR - ESCROW EXHIBIT 99.2 FORM OF TERMINATION AND RELEASE AGREEMENT RELATING TO ESCROW AGREEMENT THIS TERMINATION AND RELEASE AGREEMENT (this "Agreement") is made and executed this 1st day of October, 2006 among Tejas Incorporated, a Delaware corporation, Capital & Technology Advisors Inc., a Delaware corporation, the persons and entities listed on the signature page hereto, and HSBC Bank USA, National Association, as escrow agent (each a "Party" and, collectively, the "Parties"). W I T NE S S E T H: WHEREAS, the Parties executed an Escrow Agreement, dated July 1, 2005, a copy of which is attached hereto as Exhibit A; and WHEREAS, the terms and provisions of the Escrow Agreement notwithstanding, the Parties desire to terminate the Escrow Agreement in its entirety. NOW THEREFORE, in consideration of the premises and mutual covenants contained herein, and for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties, intending to be legally bound, hereby agree as follows: 1. TERMINATION OF THE AGREEMENT. Effective as of the date hereof, the Escrow Agreement shall be terminated in its entirety and shall be of no further force or effect. 2. DELIVERY OF THE SHARES. Tejas Incorporated, Niskayuna Development LLC (now known as Winchester Development LLC) and Wayne Barr, Jr. hereby direct the Escrow Agent to deliver the Escrowed Property (as defined in the Escrow Agreement) to Tejas Incorporated at the Closing pursuant to Section 2.01 of the Purchase Agreement of even date herewith among Tejas Incorporated, Capital & Technology Advisors, Inc. and the persons listed on the signature page thereto. 3. MUTUAL AND GENERAL RELEASE. The Parties, for themselves and their respective successors, predecessors, assignees, affiliates, subsidiaries, officers, directors, partners, employees, attorneys, consultants, representatives, agents and entities they control (collectively, their "Respective Entities"), hereby mutually and generally release and discharge each other and each other's Respective Entities from any and all suits, debts, charges, obligations, liabilities, causes of action and claims, whether at law or in equity, of any kind or nature whatsoever, known or unknown, which the Parties and their Respective Entities ever had, now have or hereafter can, shall or may have against the other, for, upon, or by reason of any matter, cause or thing arising, accruing or relating to the Escrow Agreement (collectively, the "Released Matters"). This is intended to be the broadest mutual and general release possible to give under law. 4. COVENANT NOT TO SUE. The Parties hereto represent and warrant that they will not hereafter institute or pursue, or permit to be filed by any other person or entity on their behalf, any claim, charge or action before any legislative or judicial body against any Party to this Agreement or against any person bound by this Agreement on account of any Released Matter that occurred or failed to occur up to and including the date of this Agreement. The Parties hereto represent and warrant that they have not assigned any rights or claims under the Escrow Agreement. 5. NO ADMISSIONS. By entering into this Agreement, including the release and covenant not to sue, none of the Parties admits to any wrongdoing or liability of any kind or character. 6. FEES. The Escrow Agent hereby confirms that there are no fees due and owing to it by the other Parties hereto. 7. COUNSEL. Each Party acknowledges that the Party has carefully reviewed and understands the terms of this Agreement and in connection herewith has had sufficient and adequate opportunity to consult with legal counsel. 8. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement and understanding of the Parties, and supersedes all prior oral and written agreements or understandings between the Parties, regarding the subject matter hereof. The provisions of this Agreement are severable, and if any part of it is found to be unenforceable, the other paragraphs shall remain fully valid and enforceable. 9. GOVERNING LAW. This Agreement shall be construed by and enforced in accordance with the internal laws of the State of New York without giving effect to the choice of law rules thereof. 10. COUNTERPARTS. This Agreement may be executed through the use of separate signature pages or in any number of counterparts, and each of such counterparts shall, for all purposes, constitute one agreement binding on all Parties, notwithstanding that all Parties are not signatories to the same counterpart. 2 IN WITNESS WHEREOF, this Agreement has been signed by or on behalf of each of the Parties as of the day first above written. TEJAS INCORPORATED By: /S/ KURT J. RECHNER ------------------------------- Name: Kurt J. Rechner ------------------------------- Title: AUTHORIZED SIGNATORY ------------------------------- CAPITAL & TECHNOLOGY ADVISORS, INC. By: /S/ WAYNE BARR, JR. ------------------------------- Name: Wayne Barr, Jr. ------------------------------- Title: AUTHORIZED SIGNATORY ------------------------------- WINCHESTER DEVELOPMENT LLC By: /S/ JARED E. ABBRUZZESE, SR. ------------------------------- Name: JARED E.ABBRUZZESE, SR. ------------------------------- Title: AUTHORIZED SIGNATORY ------------------------------- WAYNE BARR, JR. /S/ WAYNE BARR, JR. ------------------------------- HSBC BANK USA, NATIONAL ASSOCIATION By: /S/ LISA J. PRICE ------------------------------- Name: LISA PRICE ------------------------------- Title: AUTHORIZED SIGNATORY ------------------------------- 3 EX-99.3 4 tejas_ex99-3.txt RELEASE AGR - REG RIGHTS EXHIBIT 99.3 FORM OF TERMINATION AND RELEASE AGREEMENT RELATING TO REGISTRATION RIGHTS AGREEMENT THIS TERMINATION AND RELEASE AGREEMENT (this "Agreement") is made and executed this 1st day of October, 2006 among Tejas Incorporated, a Delaware corporation, and the persons listed on the signature pages hereof (each a "Party" and, collectively, the "Parties"). W I T NE S S E T H: WHEREAS, the Parties executed a Registration Rights Agreement, dated July 1, 2005 (the "Rights Agreement"), a copy of which is attached hereto as Exhibit A; and WHEREAS, the terms and provisions of the Rights Agreement notwithstanding, the Parties desire to terminate the Rights Agreement in its entirety. NOW THEREFORE, in consideration of the premises and mutual covenants contained herein, and for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties, intending to be legally bound, hereby agree as follows: 1. TERMINATION OF THE AGREEMENT. Effective as of the date hereof, the Rights Agreement shall be terminated in its entirety and shall be of no further force or effect. 2. MUTUAL AND GENERAL RELEASE. The Parties, for themselves and their respective successors, predecessors, assignees, affiliates, subsidiaries, officers, directors, partners, employees, attorneys, consultants, representatives, agents and entities they control (collectively, their "Respective Entities"), hereby mutually and generally release and discharge each other and each other's Respective Entities from any and all suits, debts, charges, obligations, liabilities, causes of action and claims, whether at law or in equity, of any kind or nature whatsoever, known or unknown, which the Parties and their Respective Entities ever had, now have or hereafter can, shall or may have against the other, for, upon, or by reason of any matter, cause or thing arising, accruing or relating to the Rights Agreement (collectively, the "Released Matters"). This is intended to be the broadest mutual and general release possible to give under law. 3. COVENANT NOT TO SUE. The Parties hereto represent and warrant that they will not hereafter institute or pursue, or permit to be filed by any other person or entity on their behalf, any claim, charge or action before any legislative or judicial body against any Party to this Agreement or against any person bound by this Agreement on account of any Released Matter that occurred or failed to occur up to and including the date of this Agreement. The Parties hereto represent and warrant that they have not assigned any rights or claims under the Rights Agreement. 4. NO ADMISSIONS. By entering into this Agreement, including the release and covenant not to sue, none of the Parties admits to any wrongdoing or liability of any kind or character. 5. COUNSEL. Each Party acknowledges that the Party has carefully reviewed and understands the terms of this Agreement and in connection herewith has had sufficient and adequate opportunity to consult with legal counsel. 6. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement and understanding of the Parties, and supersedes all prior oral and written agreements or understandings between the Parties, regarding the subject matter hereof. The provisions of this Agreement are severable, and if any part of it is found to be unenforceable, the other paragraphs shall remain fully valid and enforceable. 7. GOVERNING LAW. This Agreement shall be construed by and enforced in accordance with the internal laws of the State of New York without giving effect to the choice of law rules thereof. 8. COUNTERPARTS. This Agreement may be executed through the use of separate signature pages or in any number of counterparts, and each of such counterparts shall, for all purposes, constitute one agreement binding on all Parties, notwithstanding that all Parties are not signatories to the same counterpart. 2 IN WITNESS WHEREOF, this Agreement has been signed by or on behalf of each of the Parties as of the day first above written. TEJAS INCORPORATED By: /S/ KURT J. RECHNER -------------------------------- Name: Kurt J. Rechner -------------------------------- Title: AUTHORIZED SIGNATORY -------------------------------- WINCHESTER DEVELOPMENT LLC By: /S/ JARED E.ABBRUZZESE, SR. -------------------------------- Name: JARED E.ABBRUZZESE, SR. -------------------------------- Title: AUTHORIZED SIGNATORY -------------------------------- WAYNE BARR, JR. /S/ WAYNE BARR, JR. ------------------- SHAWN O'DONNELL /S/ SHAWN O'DONNELL ------------------- PATRICK DOYLE /S/ PATRICK DOYLE ----------------- JOHN P. BADE /S/ JOHN P. BADE ---------------- 3 -----END PRIVACY-ENHANCED MESSAGE-----