Settlement Agreement - Carreker-Antinori Inc. and Susan Antinori
SETTLEMENT AGREEMENT
This Settlement Agreement (this "Agreement"), dated as of January 29,
1998, is between Susan Antinori, an individual ("Mrs. Antinori"), and Carreker-
Antinori, Inc., a Texas corporation (the "Company").
RECITALS
Mrs. Antinori was a shareholder of Antinori Software, Inc., a Georgia
corporation ("ASI"). On January 31, 1997, a wholly-owned subsidiary of the
Company merged with and into ASI, with the result that ASI then became a wholly-
owned subsidiary of the Company (the "Merger").
The Merger occurred pursuant to that certain Agreement and Plan of Merger
dated as of January 29, 1997 between the Company (then named The Carreker
Group, Inc.), such wholly-owned subsidiary and ASI (the "Merger Agreement").
In the Merger, Mrs. Antinori received 51,461 shares of the Company's Class
A Voting Common Stock.
Pursuant to that certain Escrow Agreement entered into as of January 31,
1997 among the Company, Mrs. Antinori, Ronald R. Antinori (Mrs. Antinori's
spouse), Michael Israel and U.S. Trust Company of Texas, N.A., as escrow agent
(the "Antinori Escrow Agreement"), Mrs. Antinori placed 2,570 shares of the
Company's Class A Voting Common Stock into an escrow account to secure
indemnification obligations to the Company and other Indemnified Persons (as
defined in Section 10.2 of the Merger Agreement).
Subsequent to the Merger the parties have decided that an adjustment to
the relative valuation of ASI and the Company is appropriate for reasons
including, but not limited to, the developmental status of the "ASI 17" and
"Odyssey" products as of the closing date of the Merger. Mrs. Antinori and the
Company also desire to fully and finally settle certain claims, to avoid
continued or future disputes and controversies regarding those claims, to
provide peace of mind for both parties, and to eliminate and forego the
nuisance of possible litigation and the financial costs of such litigation.
In consideration of the foregoing recitals and other good and valuable
consideration, the receipt and sufficiency of which the parties acknowledge,
the parties agree as follows:
1. CANCELLATION; RELEASE FROM ESCROW. The 2,570 shares of the Company's
Class A Voting Common Stock that Mrs. Antinori placed into the escrow
established by the Antinori Escrow Agreement shall be released to the Company,
for cancellation pursuant to the terms thereof. An original or photocopy of
this Agreement, delivered to U.S. Trust Company of Texas, N.A., shall
constitute joint notice by the Company and Mrs. Antinori, and direction to U.S.
Trust Company of Texas, N.A. per Section 4(b) of the Antinori Escrow Agreement,
that such 2,570 shares are to be released to the Company, for cancellation.
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2. RELEASE FROM ESCROW TO J.D. CARREKER. In connection with Merger
Agreement, J.D. Carreker deposited 25,700 shares of the Company's Class A
Voting Common Stock into an escrow pursuant to that certain Escrow Agreement
entered into as of January 31, 1997 among the Company, Mr. Carreker and U.S.
Trust Company of Texas, N.A., as escrow agent (the "Carreker Escrow
Agreement"). An original or photocopy of this Agreement, delivered to U.S.
Trust Company of Texas, N.A., shall constitute joint notice by the Company and
Mr. Carreker, and direction to U.S. Trust Company of Texas, N.A. per Section
4(b) of the Antinori Escrow Agreement, that such 25,700 shares are to be
released to Mr. Carreker.
3. RECIPROCAL RELEASES. In consideration of Mrs. Antinori's agreements
made in this Agreement, the Company knowingly, voluntarily, and intentionally
agrees to, and does, settle, release, waive, and discharge Mrs. Antinori and
her past, present and future affiliates, assigns, accountants, attorneys,
consultants and other representatives (collectively, the "Antinori Released
Parties"), from any and all claims and causes of action, whether legal,
equitable, or administrative, whether presently known or not known to the
Company, and whether fixed or contingent, that the Company and/or its
successors, assigns and/or any person on its behalf now holds, may ever hold or
has held, known or unknown and may have or claim to have now or in the future
against any one or more of the Antinori Released Parties, concerning any and
all matters arising in connection with or under the Merger Agreement and/or the
Antinori Escrow Agreement or by reason of the Merger; PROVIDED, HOWEVER, that
the foregoing shall not constitute a settlement, release, waiver, or discharge
of the Company's rights or obligations under (1) this Agreement, (2) that
certain Non-Competition Agreement dated January 31, 1997 between Mrs. Antinori
and the Company, and (3) the Shareholders Agreement, each of which shall
survive this Agreement in accordance with its terms.
In consideration of the Company's agreements made in this Agreement, Mrs.
Antinori knowingly, voluntarily, and intentionally agrees to, and does, settle,
release, waive, and discharge the Company, its predecessors, successors and
past, present and future affiliates, employees, officers, directors,
shareholders, partners, assigns, accountants, attorneys, consultants, other
representatives, employee retirement, health and welfare benefit plans and the
fiduciaries thereof and agents (collectively, the "Company Released Parties"),
from any and all claims and causes of action, whether legal, equitable, or
administrative, whether presently known or not known to Mrs. Antinori, and
whether fixed or contingent, that Mrs. Antinori and/or her spouse, dependents,
heirs, successors, and assigns and/or any person on her behalf now holds, may
ever hold or has held, known or unknown and may have or claim to have now or in
the future against any one or more of the Company Released Parties, concerning
any and all matters arising in connection with or under the Merger Agreement
and/or the Carreker Escrow Agreement or by reason of the Merger; PROVIDED,
HOWEVER, that the foregoing shall not constitute a settlement, release, waiver,
or discharge of Mrs. Antinori's rights or obligations under (1) this Agreement,
(2) that certain Non-Competition Agreement dated January 31, 1997 between Mrs.
Antinori and the Company, and (3) that certain Shareholders Agreement dated as
of January 31, 1997 among the Company, Mrs. Antinori and others (the
"Shareholders Agreement"), each of which shall survive this Agreement in
accordance with its terms.
SETTLEMENT AGREEMENT - Page 2
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4. NO ADMISSION OF WRONG-DOING. Entry into this Agreement does not, in
any way, constitute an admission of improprieties or other wrong-doing by any
party hereto.
5. SURVIVAL. This Agreement, together with the agreements referenced in
the provisos of Section 3 above as not being settled, waived, released or
discharged, contains all of the terms, provisions, and understandings between
Mrs. Antinori and the Company. No modification of this Agreement can be made
except in writing and signed by both parties.
6. ARBITRATION. Any Dispute (as defined in the Merger Agreement) arising
in connection with this Agreement will be subject to arbitration in the same
manner as a Dispute arising in connection with the Merger Agreement, i.e., as
provided in Section 11.1 of the Merger Agreement.
7. MISCELLANEOUS. This Agreement is binding on the parties and their
representatives, heirs, and successors and assigns. This Agreement shall be
governed by and interpreted under the laws of the State of Texas, without
regard to conflict of laws. Mrs. Antinori acknowledges that the Company makes
no representation whatsoever concerning the tax consequences, if any, of this
Agreement to her. Each party agrees that such party is solely responsible for
payment of all of such party's federal, state, and local taxes, interest and
penalties, if any, which are or may become due on account of this Agreement and
agrees to indemnify, defend and hold harmless the other party from any
liability for such amounts. Each party represents and warrants to the other
party that no claims settled, released, waived or discharged herein have been
previously conveyed, assigned, or transferred in any manner, whether in whole
or in part, to any person, entity, or other third party. Each party represents
to the other that such party is relying on its or her, as applicable, own
judgment in entering into this Agreement, and is not relying (and has not
relied) on any statement or representation, not expressly set forth herein, of
such other party (or any agent or affiliate of such other party). Mrs.
Antinori expressly represents that she is competent and authorized to release
and/or waive any claims she may have against the Company that are released
and/or waived hereby. If any portion of this Agreement (other than Section 1
hereof) is deemed unenforceable, void, voidable, or of no force and effect,
then no other portion will be thereby affected, and the remainder of this
Agreement will continue in full force and effect. This Agreement may be
executed in one or more counterparts, each of which shall be deemed an
original, but all of which together shall constitute one and the same
instrument; but in pleading or proving this Agreement, or any provision hereof,
it shall not be necessary to produce or introduce any more than one of such
counterparts. MRS. ANTINORI ACKNOWLEDGES AND AGREES THAT SHE HAS THE RIGHT TO
DISCUSS ALL ASPECTS OF THIS AGREEMENT WITH A PRIVATE ATTORNEY, HAS BEEN
ENCOURAGED TO DO SO BY THE COMPANY, AND HAS DONE SO TO THE EXTENT SHE DESIRES.
MRS. ANTINORI REPRESENTS AND AGREES THAT SHE HAS THOROUGHLY AND CAREFULLY READ
THIS AGREEMENT IN ITS ENTIRETY, THAT SHE HAS HAD A REASONABLE TIME TO CONSIDER
ITS TERMS, THAT SHE FULLY UNDERSTANDS ALL OF ITS TERMS, AND THAT SHE HAS NOT
RELIED UPON ANY REPRESENTATIONS OR STATEMENTS, WHETHER WRITTEN OR ORAL, NOT SET
FORTH IN THIS AGREEMENT.
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the
date
SETTLEMENT AGREEMENT - Page 3
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first written above.
CARREKER-ANTINORI, INC.
By: /s/ J.D. Carreker
J.D. Carreker
Chief Executive Officer
/s/ Susan Antinori
SUSAN ANTINORI
SETTLEMENT AGREEMENT - Page 4