SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
SCHEDULE 13D
UNDER THE SECURITIES EXCHANGE ACT OF 1934
(AMENDMENT NO. ____)*
EVANS, INC.
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(Name of Issuer)
COMMON STOCK, PAR VALUE $.20
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(Title of Class of Securities)
299155101
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(CUSIP Number)
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Norman Siegal
3521 Oaklawn
PMB 105
Dallas, Texas 75219
(214) 526-3500
(Name, Address and Telephone Number of Person Authorized to Receive Notices
and Communications)
June 14, 1999
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(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 Rule 13d-1(e), Rule 13d-1(f) or Rule 13d-1(g), check the
following box /_/ .
Note: Schedules filed in paper format shall include a signed original and five
copies of the schedule, including all exhibits. See Rule 13d-7(b) for other
parties to whom copies are to be sent.
*The remainder of this cover page shall be filled out for a reporting person's
initial filing on this form with respect to the subject class of securities, and
for any subsequent amendment containing information which would alter
disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be deemed
to be "filed" for the purpose of Section 18 of the Securities Exchange Act of
1934 ("Act") or otherwise subject to the liabilities of that section of the Act
but shall be subject to all other provisions of the Act (however, see the
Notes).
<PAGE>
SCHEDULE 13D
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CUSIP NO. 299155101 PAGE 2 OF 16 PAGES
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1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Hal Robert Pettigrew, Jr. Trust
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2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (See Instructions)
(a)/_/ (b) /x/
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3 SEC USE ONLY
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4 SOURCE OF FUNDS (See Instructions)
WC
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5 CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS
2(d) or 2(e)
/_/
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6 CITIZENSHIP OR PLACE OF ORGANIZATION
Texas
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7 SOLE VOTING POWER
None
NUMBER OF ----------------------------------------------------------------
SHARES 8 SHARED VOTING POWER
BENEFICIALLY 41,075
OWNED BY ----------------------------------------------------------------
EACH 9 SOLE DISPOSITIVE POWER
REPORTING None
PERSON ----------------------------------------------------------------
WITH 10 SHARED DISPOSITIVE POWER
41,075
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11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
41,075
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12 CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (See
Instructions) /_/
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13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
3.16%
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14 TYPE OF REPORTING PERSON (See Instructions)
OO
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<PAGE>
SCHEDULE 13D
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CUSIP NO. 299155101 PAGE 3 OF 17 PAGES
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1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Charles Gordon Pettigrew Trust
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2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (See Instructions))
(a)/_/ (b) /x/
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3 SEC USE ONLY
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4 SOURCE OF FUNDS (See Instructions)
WC
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5 CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS
2(d) or 2(e)
/_/
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6 CITIZENSHIP OR PLACE OF ORGANIZATION
Texas
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7 SOLE VOTING POWER
None
NUMBER OF ----------------------------------------------------------------
SHARES 8 SHARED VOTING POWER
BENEFICIALLY 41,075
OWNED BY ----------------------------------------------------------------
EACH 9 SOLE DISPOSITIVE POWER
REPORTING None
PERSON ----------------------------------------------------------------
WITH 10 SHARED DISPOSITIVE POWER
41,075
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11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
41,075
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12 CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (See
Instructions) /_/
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13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
3.16%
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14 TYPE OF REPORTING PERSON (See Instructions)
OO
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<PAGE>
SCHEDULE 13D
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CUSIP NO. 299155101 PAGE 4 OF 16 PAGES
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1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Jason Crockett Pettigrew Trust
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2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (See Instructions)
(a)/_/ (b) /x/
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3 SEC USE ONLY
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4 SOURCE OF FUNDS (See Instructions)
WC
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5 CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS
2(d) or 2(e)
/_/
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6 CITIZENSHIP OR PLACE OF ORGANIZATION
Texas
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7 SOLE VOTING POWER
None
NUMBER OF ----------------------------------------------------------------
SHARES 8 SHARED VOTING POWER
BENEFICIALLY 41,075
OWNED BY ----------------------------------------------------------------
EACH 9 SOLE DISPOSITIVE POWER
REPORTING None
PERSON ----------------------------------------------------------------
WITH 10 SHARED DISPOSITIVE POWER
41,075
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11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
41,075
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12 CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (See
Instructions) /_/
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13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
3.16%
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14 TYPE OF REPORTING PERSON (See Instructions)
OO
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<PAGE>
SCHEDULE 13D
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CUSIP NO. 299155101 PAGE 5 OF 16 PAGES
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1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Benjamin Virgil Pettigrew Trust
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2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (See Instructions)
(a)/_/ (b) /x/
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3 SEC USE ONLY
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4 SOURCE OF FUNDS (See Instructions)
WC
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5 CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS
2(d) or 2(e)
/_/
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6 CITIZENSHIP OR PLACE OF ORGANIZATION
Texas
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7 SOLE VOTING POWER
None
NUMBER OF -----------------------------------------------------------------
SHARES 8 SHARED VOTING POWER
BENEFICIALLY 41,075
OWNED BY ------------------------------------------------------------------
EACH 9 SOLE DISPOSITIVE POWER
REPORTING None
PERSON -------------------------------------------------------------------
WITH 10 SHARED DISPOSITIVE POWER
41,075
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11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
41,075
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12 CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (See
Instructions) /_/
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13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
3.16%
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14 TYPE OF REPORTING PERSON (See Instructions)
OO
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<PAGE>
SCHEDULE 13D
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CUSIP NO. 299155101 PAGE 6 OF 16 PAGES
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1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Amy Gay Margaret Pettigrew Trust
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2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (See Instructions)
(a)/_/ (b) /x/
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3 SEC USE ONLY
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4 SOURCE OF FUNDS (See Instructions)
WC
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5 CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS
2(d) or 2(e)
/_/
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6 CITIZENSHIP OR PLACE OF ORGANIZATION
Texas
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7 SOLE VOTING POWER
None
NUMBER OF ----------------------------------------------------------------
SHARES 8 SHARED VOTING POWER
BENEFICIALLY 41,075
OWNED BY ----------------------------------------------------------------
EACH 9 SOLE DISPOSITIVE POWER
REPORTING None
PERSON ----------------------------------------------------------------
WITH 10 SHARED DISPOSITIVE POWER
41,075
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11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
41,075
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12 CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (See
Instructions) /_/
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13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
3.16%
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14 TYPE OF REPORTING PERSON (See Instructions)
OO
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<PAGE>
SCHEDULE 13D
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CUSIP NO. 299155101 PAGE 7 OF 16 PAGES
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1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Clearview Investments, Ltd.
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2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (See Instructions)
(a)/_/ (b) /x/
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3 SEC USE ONLY
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4 SOURCE OF FUNDS (See Instructions)
WC
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5 CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS
2(d) or 2(e)
/_/
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6 CITIZENSHIP OR PLACE OF ORGANIZATION
Texas
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7 SOLE VOTING POWER
None
NUMBER OF ----------------------------------------------------------------
SHARES 8 SHARED VOTING POWER
BENEFICIALLY 28,700
OWNED BY ----------------------------------------------------------------
EACH 9 SOLE DISPOSITIVE POWER
REPORTING None
PERSON ----------------------------------------------------------------
WITH 10 SHARED DISPOSITIVE POWER
28,700
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11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
28,700
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12 CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (See
Instructions) /_/
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13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
2.2%
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14 TYPE OF REPORTING PERSON (See Instructions)
PN
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<PAGE>
SCHEDULE 13D
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CUSIP NO. 299155101 PAGE 8 OF 16 PAGES
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1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Clearview Equities, Inc.
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2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (See Instructions)
(a)/_/ (b) /x/
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3 SEC USE ONLY
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4 SOURCE OF FUNDS (See Instructions)
WC
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5 CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS
2(d) or 2(e)
/_/
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6 CITIZENSHIP OR PLACE OF ORGANIZATION
Texas
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7 SOLE VOTING POWER
None
NUMBER OF ----------------------------------------------------------------
SHARES 8 SHARED VOTING POWER
BENEFICIALLY 28,700
OWNED BY ------------------------------------------------------------------
EACH 9 SOLE DISPOSITIVE POWER
REPORTING None
PERSON ------------------------------------------------------------------
WITH 10 SHARED DISPOSITIVE POWER
28,700
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11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
28,700
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12 CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (See
Instructions) /_/
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13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
2.2%
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14 TYPE OF REPORTING PERSON (See Instructions)
CO
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<PAGE>
SCHEDULE 13D
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CUSIP NO. 299155101 PAGE 9 OF 16 PAGES
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1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Virgil B. Pettigrew
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2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (See Instructions)
(a)/_/ (b) /x/
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3 SEC USE ONLY
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4 SOURCE OF FUNDS (See Instructions)
WC
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5 CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS
2(d) or 2(e)
/_/
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6 CITIZENSHIP OR PLACE OF ORGANIZATION
United States
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7 SOLE VOTING POWER
None
NUMBER OF ----------------------------------------------------------------
SHARES 8 SHARED VOTING POWER
BENEFICIALLY 90,575
OWNED BY ----------------------------------------------------------------
EACH 9 SOLE DISPOSITIVE POWER
REPORTING None
PERSON ----------------------------------------------------------------
WITH 10 SHARED DISPOSITIVE POWER
90,575
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11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
90,575
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12 CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (See
Instructions) /_/
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13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
6.97%
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14 TYPE OF REPORTING PERSON (See Instructions)
IN
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<PAGE>
SCHEDULE 13D
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CUSIP NO. 299155101 PAGE 10 OF 16 PAGES
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1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Norman Siegal
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2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (See Instructions)
(a)/_/ (b) /x/
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3 SEC USE ONLY
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4 SOURCE OF FUNDS (See Instructions)
WC
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5 CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS
2(d) or 2(e)
/_/
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6 CITIZENSHIP OR PLACE OF ORGANIZATION
United States
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7 SOLE VOTING POWER
None
NUMBER OF ----------------------------------------------------------------
SHARES 8 SHARED VOTING POWER
BENEFICIALLY 90,575
OWNED BY ----------------------------------------------------------------
EACH 9 SOLE DISPOSITIVE POWER
REPORTING None
PERSON ----------------------------------------------------------------
WITH 10 SHARED DISPOSITIVE POWER
13,586
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11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
90,575
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12 CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (See
Instructions) /_/
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13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
6.97%
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14 TYPE OF REPORTING PERSON (See Instructions)
IN
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<PAGE>
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CUSIP NO. 299155101 PAGE 11 OF 16 PAGES
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ITEM 1. SECURITY AND ISSUER
This statement relates to shares of common stock, $.20 par value per
share (the "Common Stock"), of Evans, Inc. (the "Corporation"). The
Corporation's principal executive office is located at 36 South State Street,
Chicago, Illinois 60603.
ITEM 2. IDENTITY AND BACKGROUND.
(a) The persons filing this schedule (collectively, the "Reporting
Persons") are a group of five trusts formed under the laws of the State of Texas
(collectively, the "Trust"), Clearview Investments, Ltd. ("Clearview Ltd."), a
partnership formed under the laws of Texas, whose General Partner is Clearview
Equities, Inc. ("Clearview Equities"), a Texas corporation, Virgil B. Pettigrew
and Norman Siegal. The Trust owns the entire limited partnership interest in
Clearview Ltd. Each of the trusts comprising the Trust owns 20% of any Trust
property. The five individual trusts which comprise the Trust are the Hal Robert
Pettigrew, Jr. Trust, the Charles Gordon Pettigrew Trust, the Jason Crockett
Pettigrew Trust, the Benjamin Virgil Pettigrew Trust, and the Amy Gay Margaret
Pettigrew Trust. The sole trustee of each of the trusts comprising the Trust is
Virgil B. Pettigrew. The directors of Clearview Equities are Virgil B. Pettigrew
and Carla B. Fulton. Clearview Equities is wholly-owned by the Trust. The
officers of Clearview Equities are the following:
(i) D. Craig Walker, President;
(ii) Carla B. Fulton, Vice President; and
(iii) Ronald W. Black, Vice President;
(b) The business address of the Trust, Clearview Ltd., Clearview
Equities, Virgil B. Pettigrew, D. Craig Walker, Carla B. Fulton and Ronald W.
Black is 2000 East Lamar Blvd., Suite 150, Arlington, Texas 76006. The business
address of Norman Siegal is 3521 Oaklawn, PMB 105, Dallas, Texas 75219.
(c) The principal business of the Trust is to hold trust property,
including the Common Stock, to invest trust property, and to make distributions
of trust property in accordance with the terms of the agreement establishing the
Trust. The present principal occupation of Virgil B. Pettigrew is investor. The
principal business of Clearview Ltd. is investments. The principal business of
Clearview Equities is investments. The present principal occupation of Norman
Siegal is investor. Each of the officers of Clearview Equities present principal
occupation is serving in their respective capacities with Clearview Equities.
(d) During the past five years, none of the Reporting Persons, D.
Craig Walker, Carla B. Fulton and Ronald W. Black has been convicted in a
criminal proceeding (excluding traffic violations or similar misdemeanors).
(e) During the past five years, none of the Reporting Person, D.
Craig Walker, Carla B. Fulton and Ronald W. Black has 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 finding any violation with respect to
such laws.
<PAGE>
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CUSIP NO. 299155101 PAGE 12 OF 16 PAGES
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(f) The place of organization for the Trust is Texas. Clearview Ltd.
was organized under the laws of Texas. Clearview Equities is incorporated under
the laws of Texas. The place of citizenship of Virgil B. Pettigrew, Norman
Siegal, D. Craig Walker, Carla B. Fulton and Ronald W. Black is the United
States.
ITEM 3. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION.
The investment in the Common Stock by the Trust was funded by
working capital. The investment in the Common Stock by Clearview Ltd. was funded
by working capital.
ITEM 4. PURPOSE OF TRANSACTION.
The Trust and Clearview Ltd. purchased the Common Stock described
herein for investment purposes and to establish a significant equity interest in
the Corporation because they believe the Common Stock is undervalued. The Trust
and Clearview Ltd. are seeking to maximize the value of their investment.
Although the Trust and Clearview Ltd. have no current plans to do so, the Trust
and Clearview Ltd. may attempt to influence control over the Corporation by
seeking to place representatives on the Corporation's Board of Directors. The
Trust and Clearview Ltd. may seek to meet with the Corporation's management or
Board of Directors to discuss their investment and plans relating to the
Corporation. The Trust and Clearview Ltd. may seek to purchase or sell (which
sale of shares the Trust and Clearview Ltd. have no present plans to do)
additional shares of the Common Stock from time to time in open market
purchases, privately negotiated transactions or otherwise. The Trust and
Clearview Ltd. may also seek to acquire securities directly from the
Corporation.
The decision whether in the future to pursue any one or more of the
above choices will depend upon continual assessment by the Trust and Clearview
Ltd. of certain factors, including the availability of, or demand for, the
Corporation's shares at particular price levels, the general economic, stock
market and financial conditions, alternative investment opportunities, the
performance of the Common Stock, the Corporation's prospects, the general
weather conditions and its effect on the Corporation's business and the reaction
of the Corporation's management to investment in the Corporation by the Trust
and Clearview Ltd. There can be no assurance that the Trust and Clearview Ltd.
will take any of the above actions.
Except as described above, the Trust and Clearview Ltd. do not have any
specific plans or proposals that relate to or would result in any of the actions
specified in clauses (a) through (j) of Item 4 of Schedule 13D.
ITEM 5. INTEREST IN SECURITIES OF THE ISSUER.
(a) The responses of the Reporting persons to Rows (11) through (13)
of the cover page of this statement on Schedule 13D are incorporated herein by
reference.
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CUSIP NO. 299155101 PAGE 13 OF 16 PAGES
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According to the Corporation's Quarterly Report on Form 10-Q for the
quarter ended November 28, 1998, as of January 18, 1999, the Corporation had
issued and outstanding 1,299,961 shares of Common Stock.
Clearview Equities is the general partner and the Trust is the
limited partner of Clearview Ltd. Clearview Equities is wholly-owned by the
Trust. Virgil B. Pettigrew, as trustee of the Trust, has sole investment control
over all the shares held by the Trust and Clearview Equities has sole investment
control over all the shares held by Clearview Ltd. As a result of such
investment control, Virgil B. Pettigrew is deemed to be a beneficial owner of
the Common Stock held of record by the Trust and Clearview Ltd. Under an
Assignment of Interests in Proceeds Agreement (the "Siegal Agreement"), which is
included as Exhibit A hereto and incorporated herein by reference (see Item 6
for a description of this agreement), Norman Siegal has been given control over
the investment in the Common Stock but his dispositive power is limited to the
right to sell up to 15% of the Common Stock owned by the Trust and Clearview
Ltd., which is 13,586 shares. As a result of such investment control, Norman
Siegal is deemed to be a beneficial owner of 90,575 shares of the Common Stock
owned of record by the Trust and Clearview Ltd.
As of the date hereof, (i) Virgil B. Pettigrew is the beneficial
owner of 90,575 shares of Common Stock, none of which are held directly by Mr.
Pettigrew, which shares represent 6.97% of the outstanding Common Stock, (ii)
the Trust beneficially owns 90,575 shares of Common Stock, 61,875 shares of
which are owned directly by the Trust and 28,700 shares of which are owned of
record by Clearview Ltd., which 90,575 shares represent 6.97% of the outstanding
Common Stock, (iii) each of the five individual trusts which compose the Trust,
is the direct and beneficial owner of 12,375 shares of Common Stock and, through
its ownership interest in Clearview Ltd., the beneficial owner of an additional
28,700 shares of Common Stock, (iv) Clearview Ltd. beneficially owns 28,700
shares of Common Stock, all of which are owned directly by Clearview Ltd., which
shares represent 2.2% of the outstanding Common Stock, (v) Clearview Equities,
as general partner of Clearview Ltd., is the beneficial owner of 28,700 shares
of Common Stock, none of which are owned directly by Clearview Equities and (vi)
Norman Siegal, through the Siegal Agreement, is the beneficial owner of 90,575
shares of Common Stock, none of which are owned directly by Mr. Siegal.
(b) The responses of the Reporting persons to (i) Rows (7) through
(10) of the cover page of this statement on Schedule 13D and (ii) Item 5(a)
hereof are incorporated herein by reference.
(c) Clearview Investments, Ltd. purchased a total of 28,700 shares
of Common Stock through separate open market purchases of 20,400 shares on June
14, 1999, 5,500 shares on June 15, 1999 and 2,800 shares on June 18, 1999. The
purchase price per share was $1.12240, $1.15255 and $1.19020 on June 14, 1999,
June 15, 1999 and June 18, 1999, respectively. Except as set forth in Item 5(c)
hereof, none of the Reporting Persons has effected any transaction in the Common
Stock within the past 60 days.
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CUSIP NO. 299155101 PAGE 14 OF 16 PAGES
- ---------------------------- -------------------------
(d) Norman Siegal shares with the Trust, Clearview and Virgil B.
Pettigrew the right to receive and the power to direct the receipt of dividends
from, or the proceeds from the sale of, the 90,575 shares of Common Stock in
which the Trust, Clearview and Virgil B. Pettigrew share voting and dispositve
power.
(e) Not applicable.
ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH RESPECT
TO SECURITIES OF THE ISSUER.
The information set forth under Item 5 above and in the Exhibits
attached hereto is incorporated herein by reference.
The Trust and Clearview Ltd. entered into the Siegal Agreement
whereby the Trust and Clearview Ltd. assigned to Norman Siegal their interests
in certain proceeds and income from the sale of the Common Stock owned by the
Trust and Clearview Ltd. In addition, Norman Siegal received the right and
responsibility for the day-to-day operations of the investment. However, under
the agreement Norman Siegal shall not have the right to sell more than fifteen
(15%) of the Common Stock without the consent of the Trust and Clearview Ltd.
An Assignment of Trusts' Account, dated December 23, 1997, was
entered into by and among the Trust, National Western Life Insurance Company, a
Colorado insurance corporation and Moody National Bank of Galveston (the "Moody
National Bank Agreement") whereby the Trust pledged all of its right, title and
interest in the Trust's account, which is held by the Moody National Bank of
Galveston, as partial security for a loan between Moody National Bank of
Galveston and The Ranch on Possum Kingdom, a Texas limited partnership. The
shares of Common Stock are included in the Trust's account. A copy of the Moody
National Bank Agreement is attached hereto as Exhibit B and is incorporated
herein by reference.
Except as described in this Statement, the parties filing this
Statement are not parties to any contract, arrangement, understanding or
relationships with any other person with respect to shares of the Corporation's
Common Stock, including, but not limited to transfer or voting of any of the
securities, finder's fees, joint ventures, loan or option arrangements, puts or
calls, guarantees of profits, divisions of profits or loss, or the giving or
withholding of proxies.
ITEM 7. MATERIAL TO BE FILED AS EXHIBITS.
Filed as exhibits hereto are the following:
Exhibit A - Siegal Agreement
Exhibit B - Moody National Bank Agreement
Exhibit C - Joint Filing Statement
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CUSIP NO. 299155101 PAGE 15 OF 16 PAGES
- ---------------------------- -------------------------
SIGNATURE.
After reasonable inquiry and to the best of my knowledge and belief,
I certify that the information set forth in this statement is true, complete and
correct.
Date: June 24, 1999
HAL ROBERT PETTIGREW, JR. TRUST
/S/ VIRGIL B. PETTIGREW
Virgil B. Pettigrew
Trustee
CHARLES GORDON PETTIGREW TRUST
/S/ VIRGIL B. PETTIGREW
Virgil B. Pettigrew
Trustee
JASON CROCKETT PETTIGREW TRUST
/S/ VIRGIL B. PETTIGREW
Virgil B. Pettigrew
Trustee
BENJAMIN VIRGIL PETTIGREW TRUST
/S/ VIRGIL B. PETTIGREW
Virgil B. Pettigrew
Trustee
AMY GAY MARGARET PETTIGREW TRUST
/S/ VIRGIL B. PETTIGREW
<PAGE>
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CUSIP NO. 299155101 PAGE 16 OF 17 PAGES
- ---------------------------- -------------------------
Virgil B. Pettigrew
Trustee
VIRGIL B. PETTIGREW
/S/ VIRGIL B. PETTIGREW
Virgil B. Pettigrew, individually
CLEARVIEW INVESTMENTS, LTD.
By: Clearview Equities, Inc.
By: /s/ Carla B. Fulton
Its: Vice President
CLEARVIEW EQUITIES, INC.
By: /s/ Ronald Black
Its: Vice President
NORMAN SIEGAL
/S/ NORMAN SIEGAL
Norman Siegal, individually
<PAGE>
EXHIBIT INDEX
Exhibit A - Siegal Agreement
Exhibit B - Moody National Bank Agreement
Exhibit C - Joint Filing Statement
EXHIBIT A
ASSIGNMENT OF INTEREST IN PROCEEDS
EVANS INC. SECURITIES
ASSIGNOR: CROWN HILL TRUSTS & CLEARVIEW INVESTMENTS, LTD
ASSIGNEE: NORM SIEGAL
Assignor is the owner of the Property and in consideration of services
performed by Assignee in connection with Assignor's acquisition of the Property,
the receipt and sufficiency of which is hereby acknowledged, Assignor assigns to
Assignee the interest herein described upon the term and conditions hereof.
SECTION 1 DEFINITIONS
1.1 "Basis" shall mean all costs incurred by Assignor in connection
with the acquisition of the Property, including but not limited to contracting
costs, due diligence expenses, the purchase price, closing costs, fees and the
like. The Basis shall be reduced by all amounts received by Assignor pursuant to
Sections 2.1(e), 3.1(d) and 4.1(e) hereof and increased by all amounts paid by
Assignor in connection with Assignor's ownership of the Property which are not
paid out of Gross Proceeds, Gross Income From the Property or Financing
Proceeds.
1.2 "Draw" shall mean all amounts previously paid to Assignee by
Assignor or Crown Oaks, Inc. as a draw against future profits.
1.3 "Expenses of Ownership" shall mean all expenses incurred in
connection with the ownership or holding of the Property.
1.4 "Expenses of Sale" shall mean reasonable attorney's fees,
reasonable commissions and all other reasonable closing costs incurred in
connection with a Sale of the Property.
1.5 "Financing Proceeds" shall mean (i) all proceeds of any
indebtedness secured by the Property and (ii) all proceeds of refinancing of a
Loan (net of indebtedness repaid as a result of such refinancing).
1.6 "Gross Proceeds" shall mean the total amount of consideration
received in connection with any Sale.
1.7 "Gross Income From the Property" shall mean all income of any kind
or character derived from the ownership of the Property, including, but not
limited to dividends, interest, stock dividends, and distributions of assets in
liquidation.
1.8 "Internet Play Basis" shall mean $240,000 plus accrued interest at
the rate of ten percent (10%) from 11/1/98 less any amount credited against this
amount from other transactions.
1.9 "Loan" shall mean any loan to Assignor secured by a lien on the
Property, together with any refinancing of same and any additional indebtedness
incurred by Assignor and secured by the Property; so long as such Loan is for
purposes of refinancing the Basis or for funds expended in connection with the
Property.
1.10 "Preferred Return" shall mean an amount equal to ten percent (10%)
per annum on the unrecovered amount of the Basis outstanding from time to time.
All unpaid Preferred Return shall cumulate, compounding annually until paid.
1.11 "Property" shall mean all classes of stock, warrants, securities,
assets, paper, or other evidences of indebtedness on Evans, Inc. that have been
or will be purchased or otherwise acquired by any means including dividends.
1.12 "Sale" shall mean the sale or conveyance of all or a portion of
the Property or any interest therein in a good faith arm's length transaction to
a party not affiliated with Assignor.
SECTION 2 SALE OF THE PROPERTY
2.1 In the event of a Sale of the Property, or any part thereof, the
Gross Proceeds shall be applied, when received, in the following order, and
Assignee's rights hereunder shall remain in full force and effect as to any
portion of the Property not sold:
(a) To pay the Expenses of Sale.
(b) To pay any existing Loan (or, at Assignor's option so much
thereof as required to obtain a release of the Property subject
to the Sale).
(c) To pay any Expenses of Ownership.
(d) To pay Assignor the amount of any accrued but unpaid Preferred
Return.
(e) To pay Assignor an amount equal to the Basis then outstanding.
(f) To pay Assignor an amount equal to the Internet Play Basis then
outstanding.
2.2 Assignor assigns to Assignee the following percentages of the Sales
Proceeds remaining after payment of the items in Section 2.1 above:
(a) Twenty percent (20%) until Assignor has received an internal rate
of return equal to thirty percent (30%). Such internal rate of
return computation shall not include any costs of the Internet
Play Basis.
(b) Thereafter, thirty-three percent (33%) until Assignor has
received an internal rate of return equal to forty percent (40%).
Such internal rate of return computation shall not include any
costs of the Internet Play Basis.
(c) Thereafter, fifty percent (50%).
(d) Assignor shall pay to Assignor out of any amounts received under
2.2(a), 2.2(b), and 2.2(c) any unreimbursed Draw amount.
SECTION 3 GROSS INCOME FROM THE PROPERTY
3.1 Any Gross Income From the Property shall be applied, when received,
but not less often than monthly, in the following order.
(a) To pay Expenses of Ownership.
(b) To prepay any Loan.
(c) To pay Assignor the amount of any accrued but unpaid Preferred
Return.
(d) To pay Assignor an amount equal to the Basis then outstanding.
(e) To pay Assignor an amount equal to the Internet Play Basis then
outstanding.
3.2 Assignor assigns to Assignee the following percentages of the Gross
Income From the Property remaining after payment of the items in Section 3.1
above:
(a) Twenty percent (20%) until Assignor has received an internal rate
of return equal to thirty percent (30%). Such internal rate of
return computation shall not include any costs of the Internet
Play Basis.
(b) Thereafter, thirty-three percent (33%) until Assignor has
received an internal rate of return equal to forty percent (40%).
Such internal rate of return computation shall not include any
costs of the Internet Play Basis.
(c) Thereafter, fifty percent (50%).
(d) Assignor shall pay to Assignor out of any amounts received under
3.2(a), 3.2(b), and 3.2(c) any unreimbursed Draw amount.
SECTION 4 REFINANCING
4.1 In the event of obtaining of any indebtedness secured by the
Property or any refinancing of the Loan, the Financing Proceeds shall be applied
as follows:
(a) To pay any expenses of such refinancing or new indebtedness.
(b) To prepay any Loan (or such portion thereof as Assignor shall
determine).
(c) To pay Expenses of Ownership.
(e) To pay Assignor the amount of any accrued but unpaid Preferred
Return.
(f) To pay Assignor an amount equal to the Basis then outstanding.
(g) To pay Assignor an amount equal to the Internet Play Basis then
outstanding.
4.2 Assignor assigns to Assignee the following percentages of the
Financing Proceeds remaining after payment of the items in Section 4.1 above:
(a) Twenty percent (20%) until Assignor has received an internal rate
of return equal to thirty percent (30%). Such internal rate of
return computation shall not include any costs of the Internet
Play Basis nor Draws.
(b) Thereafter, thirty-three percent (33%) until Assignor has
received an internal rate of return equal to forty percent (40%).
Such internal rate of return computation shall not include any
costs of the Internet Play Basis nor Draws.
(c) Thereafter, fifty percent (50%).
(d) Assignor shall pay to Assignor out of any amounts received under
4.2(a), 4.2(b), and 4.2(c) any unreimbursed Draw amount.
SECTION 5 MISCELLANEOUS
5.1 The term of this agreement and the Assignee's rights hereunder
shall be for so long as Assignor owns the Property or any portion thereof or
interest therein.
5.2 To the extent that any Sale utilizes any seller financing, Assignor
shall be deemed to have received Gross Proceeds only when payments are realized
from any such seller financing.
5.3 Assignor shall pay all Expenses of Ownership when due or prior to
same becoming delinquent.
5.4 Assignee's rights hereunder are limited solely to the right to
receive Assignee's interest in Gross Proceeds, Financing Proceeds and Gross
Income From the Property and in no event shall Assignee have any right to
control any business decision applicable to the Property. Assignee shall have
the right and responsibility for the day-to-day operations of the investment
including dealing with Evans, Inc., brokers, dealers, agents and the Securities
and Exchange Commission. Assignee shall not have the right to sell more than
fifteen (15%) of the Property without the consent of the Assignor.
5.5 Upon a Sale of the Property or any part thereof and upon compliance
with Section 2 of this agreement, Assignee agrees to release the Property
subject to the Sale from the provisions of this agreement and the memorandum and
shall execute, acknowledge and deliver to Assignor a written release.
5.6 Assignor has no personal or corporate obligation to pay to Assignee
any management fee, assignment fee or commission but only to deliver to Assignee
its interest in Gross Proceeds, Financing Proceeds and Gross Income From
Operations in accordance with this agreement and same shall be Assignee's sole
source of payment for its services.
5.7 Assignor shall keep all proprietary ideas, methods and procedures
of Assignee confidential (expect as such disclosure is required under federal or
state securities laws) and shall not utilized them without the permission of
Assignee for a period of five years.
5.8 Assignee may assign or transfer his rights in this agreement to a
related entity or related person.
5.9 Assignee does not have, and nothing herein contained shall be
construed to grant or to vest in Assignee title in or to the Property and
Assignee shall have not obligation to pay any third party in connection with the
property.
5.9 Nothing contained in this agreement is intended, not shall it be
construed, to create a partnership, joint venture or agency relationship between
Assignor and Assignee or to render either Assignor or Assignee liable or
responsible for the debts or obligations of the other and each party agrees to
indemnify the other and hold the other harmless from any liability, damage,
loss, cost or expense incurred in connection with any such debt or obligation.
It is additionally agreed and acknowledged that Assignee is operating under this
agreement as an independent contractor and is not an employee of Assignor for
any purposes. Assignor acknowledges and accepts that Assignee is not a regulated
nor registered investment advisor for state or federal purposes and that no
liability under such regulations exists between Assignor and Assignee.
5.10 THE LAWS OF THE STATE OF TEXAS SHALL GOVERN THE VALIDITY,
ENFORCEMENT AND INTERPRETATION OF THIS AGREEMENT.
5.11 This agreement constitutes the complete and final expression of
the agreement of the parties relating to the subject matter hereof and
supersedes all previous contracts, agreements and understandings of the parties,
either oral or written, relating to the subject matter hereof. This agreement
cannot be modified or amended, nor may any of the terms be waived, except by an
instrument in writing signed by the parties to this agreement.
5.12 If any one or more of the provisions of this agreement or the
applicability of any such provision to specific situation shall be held invalid
or unenforceable, the validity and enforceability of all other provisions of
this agreement shall not be affected thereby.
5.13 If any action at law or in equity, including an action for
declaratory judgment, is brought to enforce or interpret the provisions of this
agreement, the prevailing party shall be entitled to recover court costs and
attorney's fees from the other party, and such fees shall be in addition to any
other relief awarded.
5.14 If a dispute arises under this agreement, the parties agree to
pursue the alternative dispute resolution ("ADR") procedure hereafter described
prior to pursuing litigation, except litigation for the purpose of enforcing the
ADR procedure or for the purpose of seeking an injunction or other extraordinary
relief intended to prevent irreparable harm or preserve the status quo. In
connection with any dispute the parties shall first engage in an negotiating
meeting, the parties agree to submit the dispute to mediation conducted by a
mutually acceptable mediator. If the parties cannot agree on a mediator within
ten (10) days after the negotiating meeting, the dispute shall be submitted to
the mediation section of the American Arbitration Association at its office in
Dallas, Texas. Participation in the ADR procedure shall be by the parties
themselves or a representative fully authorized to settle the dispute. The
parties agree to engage in the ADR procedure in good faith, which shall mean the
appearance at any participation in the ADR procedures described herein with
honesty in fact by each of the parties. The parties agree to bear the cost of a
mediator on an equal prorata basis.
Executed effective the ______ day of ________, 1999.
ASSIGNOR:
CROWN HILL TRUSTS
-----------------------------
Virgil Pettigrew, Trustee
CLEARVIEW INVESTMENTS, LTD
By Clearview Equities, Inc.,
General Partner
-----------------------------
Ronald W. Black, V.P.
ASSIGNEE:
-----------------------------
Norm Siegal
EXHIBIT B
ASSIGNMENT OF TRUSTS' ACCOUNT
THIS ASSIGNMENT OF TRUSTS' ACCOUNT ("Assignment") is entered into
this 23rd day of December, 1997 by and among CROWN HILL TRUSTS (hereinafter
referred to as "Assignor"), a group of five (5) Texas trusts (identified on
Exhibit "A" attached hereto and incorporated herein by reference for all
purposes), NATIONAL WESTERN LIFE INSURANCE COMPANY, a Colorado insurance
corporation, (hereinafter, together with its successors and assigns, referred to
as "Assignee"), and MOODY NATIONAL BANK OF GALVESTON (hereinafter referred to as
"MNB").
R E C I T A L S
A. Assignee and THE RANCH ON POSSUM KINGDOM, L.P. ("Borrower"), a
Texas limited partnership, entered into that certain Loan Commitment dated
November 13, 1997 (the "Commitment") wherein the Assignee agreed to make a loan
evidenced by a promissory note (the "Note") from Borrower to Assignee in the
original principal amount of FIVE MILLION AND NO/100 DOLLARS ($5,000,000.00)
(the "Loan").
B. A condition of the Commitment requires Assignor to establish an
account with MNB at its principal office in Galveston, Texas in the amount of
ONE MILLION AND NO/100 DOLLARS ($1,000,000.00) and to assign said account to
Assignee as collateral for the Loan.
C. Assignor has made a loan to Borrower and will make future advances
to Borrower subject to certain terms and conditions including, but not limited
to, the receipt by Assignor of 39.2% of all distributions received by the Athens
Trust, a limited partner in Borrower. Therefore, Assignor deems it to be in its
best interest to satisfy the condition described in Section B.
NOW, THEREFORE, for and in consideration of the Loan from Assignee
to Borrower, the benefits accruing to Assignee and Assignor, the premises
herein, and other good and valuable consideration the receipt and sufficiency of
which is hereby acknowledged, Assignee and Assignor hereby agree as follows:
<PAGE>
1. RECITALS. The foregoing recitals are true and correct and are
incorporated herein by reference and agreed upon by the parties hereto.
2. ASSIGNMENT.
(a) Contemporaneously with closing the Loan, Assignor shall wire funds
in the amount of ONE MILLION and NO/100 DOLLARS ($1,000,000.00) (the "Deposit")
to MNB to be deposited into an account in the name of Assignor with MNB (the
"Trusts' Account") which funds shall be invested in accordance with the
provisions of the investment guidelines set forth in Exhibit "B" attached hereto
and incorporated herein by reference for all purposes.
(b) Assignor agrees to pay the fees set forth on Exhibit "C" attached
hereto to MNB and incorporated herein by reference for all purposes.
(c) Assignor hereby pledges, transfers, assigns and sets over to
Assignee, its successors and assigns, all of the Assignor's right, title and
interest of Assignor in and to the Trusts' Account.
(d) In the event that the market value of the Trusts' Account falls
below ONE MILLION AND NO/100 DOLLARS, within 30 days of receipt of written
notice from MNB, Assignor shall wire funds to MNB in an amount equal to the
difference between the market value of the Trusts' Account and ONE MILLION AND
NO/100 DOLLARS.
3. TRUSTS' ACCOUNT.
(a) So long as there shall exist no default by Borrower, beyond any
applicable period for notice and/or opportunity for cure, if any, the funds in
the Trusts' Account shall be invested in accordance with the agreement between
Assignor and MNB and no withdrawals by Assignor shall be permitted prior to
payment in full of the indebtedness owed by Borrower to Assignee, provided,
however, in the event Assignor makes additional contributions to the account
pursuant to Section 2(d) above, Assignor may subsequently withdraw amounts up to
but not exceeding such additional contributions provided that the account has a
market value not less than $1,000,000 after such withdrawal(s).
(b) MNB shall send quarterly and annual statements to Assignor with
copies to Assignee at the addresses shown below.
(c) In the event of any uncured default by Borrower under the Note or
any instruments evidencing, securing, or executed in connection with the Loan
(the "Security Instruments"), and Guarantor's failure to cure said default
within the cure periods applicable to Borrower after notice thereof to
Guarantor, Assignee shall have the right to receive the sum of ONE MILLION AND
NO/100 DOLLARS ($1,000,000.00) from the Trusts' Account. Assignor hereby
expressly authorizes MNB and MNB agrees, upon receipt of written notice and
demand from Assignee, to pay the sum of ONE MILLION AND NO/100 DOLLARS to
Assignee. MNB may act in full reliance on such written notice and demand from
Assignee. No other notice, confirmation, or other action shall be required by or
on behalf of Assignor or Assignee. Upon
<PAGE>
the occurrence of an uncured Event of Default, Assignor hereby authorizes MNB
and MNB agrees to sell any or all investments that would result in cash proceeds
in an amount sufficient to cure said default and to remit said proceeds to the
Assignee for application to the indebtedness owed by Borrower to Assignee;
however, if such sales proceeds exceed ONE MILLION and NO/100 DOLLARS
($1,000,000.00), the excess shall be remitted to Assignor by MNB or reinvested
by MNB pursuant to express written instructions from Assignor.
(d) For the purposes of interest earnings and federal income tax
reporting requirements, Assignor's tax identification number is: 75-2106952.
(e) Assignor agrees that the Trusts' Account shall continue to exist
until all indebtedness owed by Borrower to Assignee has been paid in full.
4. INDEMNIFICATION. ASSIGNOR AGREES TO INDEMNIFY AND HOLD ASSIGNEE AND MNB,
THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, ATTORNEYS, CONTRACTORS
AND SUCCESSORS AND ASSIGNS (REFERRED TO COLLECTIVELY HEREINAFTER AS
"INDEMNITEES") HARMLESS FROM AND AGAINST ANY AND ALL CLAIMS, DEMANDS, COSTS,
DAMAGES, LIENS, LIABILITIES, PENALTIES, FINES, LAWSUITS AND OTHER PROCEEDINGS
AND COSTS AND EXPENSES (INCLUDING ATTORNEYS' FEES AND DISBURSEMENTS)
(COLLECTIVELY, "DAMAGES"), WHICH MAY BE INCURRED OR SUSTAINED BY ASSIGNEE, MNB,
OR ANY OTHER PARTY INDEMNIFIED HEREUNDER IN CONNECTION WITH THE TRUSTS' ACCOUNT.
ASSIGNOR AGREES THAT THIS INDEMNIFICATION IS EXPRESSLY INTENDED TO INCLUDE
DAMAGES CAUSED IN WHOLE OR IN PART BY THE NEGLIGENCE OF INDEMNITEES, PROVIDED,
HOWEVER, THIS INDEMNITY SHALL NOT APPLY IN THE CASE OF GROSS NEGLIGENCE OF
INDEMNITEES. ASSIGNOR HEREBY WAIVES ALL CLAIMS AND HOLDS THE INDEMNITEES
HARMLESS FROM AND AGAINST ANY AND ALL CLAIMS, DEMANDS, COSTS, AND DAMAGES
RELATING TO A DIMINUTION IN MARKET VALUE OF INVESTMENTS MADE PURSUANT TO
ASSIGNOR'S INSTRUCTIONS. IF REQUESTED TO DO SO BY ANY INDEMNITEE, ASSIGNOR WILL
ASSUME, WITHOUT EXPENSE TO INDEMNITEES, THE DEFENSE OF ANY SUCH CLAIMS OR
ACTIONS. THE INDEMNITY OBLIGATIONS CONTAINED IN THIS SECTION 4 SHALL SURVIVE THE
TERMINATION OR EXPIRATION OF THIS ASSIGNMENT.
5. TERMINATION OF TRUST ACCOUNT AND RELEASE OF ASSIGNMENT.
Upon payment in full of all indebtedness owed by Borrower to
Assignee, Assignee shall send written notice to MNB that this Assignment is no
longer in effect and Assignor shall have full power to terminate the Trusts'
Account if it so wishes.
6. REMEDIES NOT EXCLUSIVE; WAIVER.
(a) Assignee shall be entitled to enforce the payment and performance
of any indebtedness or obligations secured hereby and to exercise all rights and
powers under
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<PAGE>
this Pledge Agreement, the Note, and any Security Instruments or other agreement
or any laws now or hereafter in force, notwithstanding the fact that some or all
of the indebtedness and obligations secured hereby may now or hereafter be
otherwise secured, whether by mortgage, deed of trust, guaranty, pledge, lien,
assignment or otherwise, subject to any applicable limitation of liability.
Neither Assignee's excise of its rights hereunder nor refraining to exercise
such rights shall prejudice or in any manner affect Assignee's right to realize
upon or enforce any other security now or hereafter held by Assignee or to
enforce its rights hereunder at another time. Assignee shall be entitled to
enforce its rights hereunder and under the Note and the Security Instruments in
such order and manner as it may, in its absolute discretion, determine, subject
to applicable law. No remedy herein conferred upon or reserved to Assignee is
intended to be exclusive of any other remedy contained herein or in the Security
Instruments, or by law provided or permitted, but each shall be cumulative and
shall be in addition to every other remedy given hereunder and in the Security
Instruments and now or hereafter existing at law or in equity or by statute.
Every power or remedy given by the Note and the Security Instruments to Assignee
may be exercised, concurrently or independently, from time to time and as often
as may be deemed expedient by Assignee, and Assignee may pursue inconsistent
remedies, subject to applicable law. By exercising or by not exercising any
right, option or election hereunder. Assignee shall not be deemed to have waived
any provision hereof or to have released Assignor from any of the obligations
secured hereby unless such waiver or release is in writing and signed by
Assignee. The waiver by Assignee of Borrower's failure to perform or observe any
term, covenant, or condition referred to or contained in the Note or Security
Instruments to be performed or observed by Borrower shall not be deemed to be a
waiver of such term, covenant or condition or of any subsequent failure of
Borrower to perform or observe the same or any other such term, covenant or
condition referred to or contained in the Security Instruments, and no custom or
practice which may develop between Borrower and Assignee shall be deemed a
waiver of or any way affect the right of Assignee to insist upon the performance
by Borrower of the obligations secured hereby and the right of Assignee to
exercise its rights hereunder.
(b) Except for notice of default under the Note or Security
Instruments securing the Note, Assignor (i) waives notice of any kind, including
but not limited to presentment for payment, protest and demand, notice of
non-payment, protest, notice of protest, and diligence in collecting the
indebtedness evidenced by the Note or enforcing any of the security therefor,
(ii) agrees to the substitution, exchange or release of any such security or the
release of any party primarily or secondarily liable thereon, and (iii) further
agrees that it will not be necessary for the Assignee, in order to enforce its
rights under this Assignment, to first institute suit or exhaust its remedies
against Borrower or any other liable party or to enforce its rights against any
other security therefor, and consents to any one or more rearrangements,
modifications, extensions or postponements of the time, amount or manner of
payment of the Note on any terms or any other indulgences with respect thereto,
without notice thereof and without discharging or reducing any of Assignor's
liability hereunder.
7. CONTROLLING LAW. This Assignment shall be governed by and construed in
accordance with the Uniform Commercial Code and other laws of the State of
Texas.
8. SEVERABILITY. In case any one or more of the provisions contained in
this Pledge Security Agreement shall for any reason be held to be invalid,
illegal or
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<PAGE>
unenforceable in any respect, such invalidity, illegality, or unenforceability
shall not affect any other provision hereof and this Pledge Security Agreement
shall be construed as if such invalid, illegal or unenforceable provision had
never been contained herein.
9. SECTION HEADINGS. Section headings appearing in this instrument have
been inserted for convenience only and shall be given no substitute meaning or
significance whatever in construing the terms and provisions of this Assignment.
10. NOTICES. All notices required herein shall be sent to the following
addresses or to such addresses as the parties hereto may designate in writing at
some future date(s):
ASSIGNEE: NATIONAL WESTERN LIFE INSURANCE COMPANY
950 East Anderson Lane
Austin, Texas 78752-1602
Attention: Mortgage Loan Department
With copy to:
GREER, HERZ & ADAMS, L.L.P.
One Moody Plaza, 18th Floor
Galveston, Texas 77550
Attention: Marilyn L. Soloway, Esq.
ASSIGNOR: CROWN HILL TRUSTS
2000 East Lamar Boulevard, Suite 150
Arlington, Texas 76006
Attention: Virgil Pettigrew, Trustee
MOODY NATIONAL BANK OF GALVESTON
2302 Postoffice
Galveston, Texas 77550
All notices to be given pursuant to this Assignment shall be deemed
to have been received on the earlier of (x) actual receipt or (y) three (3) days
after being mailed postage prepaid, Certified Mail Return Receipt Requested or
one (1) day after having been deposited with a recognized overnight delivery
service, fee prepaid, or upon delivery, if hand delivered, in each case
addressed to the parties designated above or to such other address as a party
hereto may designate in writing.
11. NOTICE OF INDEMNIFICATION. THE PARTIES TO THIS ASSIGNMENT HEREBY
ACKNOWLEDGE AND AGREE THAT THIS ASSIGNMENT CONTAINS CERTAIN INDEMNIFICATION
PROVISIONS PURSUANT TO SECTION 4 OF THIS ASSIGNMENT THAT OPERATE TO SURRENDER OR
OTHERWISE MODIFY THE LEGAL RIGHTS AND OBLIGATIONS OF THE PARTIES, INCLUDING
RELIEVING A PARTY FOR THE CONSEQUENCES OF ITS OWN NEGLIGENCE OR OTHER FAULT.
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<PAGE>
IN WITNESS WHEREOF, Assignor and Assignee each have caused this
Assignment to be executed by their duly authorized representatives to be
effective on the date first set forth above.
ASSIGNOR:
CROWN HILL TRUSTS, a group of 5 Texas
trusts
By: ___________________________________
Name:_____________________________________
Title: ___________________________________
ASSIGNEE:
NATIONAL WESTERN LIFE INSURANCE COMPANY,
a Colorado insurance corporation
By: ___________________________________
Name:_____________________________________
Title: __________________________________
MOODY NATIONAL BANK OF GALVESTON
By: ___________________________________
Name:_____________________________________
Title: __________________________________
<PAGE>
THE STATE OF TEXAS
COUNTY OF ________________________
On this ___________ day of __________________, 1997, personally
appeared Virgil S. Pettigrew, Trustee, who being duly sworn, did say before me
that he is the Trustee of CROWN HILL TRUSTS, a group of 5 Texas trusts and that
he executed the foregoing instrument by authority of and on behalf of the CROWN
HILL TRUSTS, and that he acknowledged said instrument to be his and the CROWN
HILL TRUSTS' voluntary act and deed.
[SEAL] __________________________________________
NEAL F. GRANTHAM NOTARY PUBLIC in and for the State of Texas
Notary Public
STATE OF TEXAS __________________________________________
Exp. 11/16/2000 (Printed Name of Notary)
My Commission Expires:____________________
THE STATE OF TEXAS
COUNTY OF GALVESTON
On this____day of 1997, personally appeared the
____________________, who being duly sworn, did say before me that he is the
Senior Vice President, of NATIONAL WESTERN LIFE INSURANCE COMPANY, a Colorado
insurance corporation ("the Corporation"), and that he executed the foregoing
instrument by authority of and on behalf of the Corporation and that he
acknowledged said instrument to be his and the Corporation's voluntary act and
deed.
(CONTINUED ON NEXT PAGE)
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<PAGE>
------------------------------------------
NOTARY PUBLIC in and for the
State of Texas
--------------------------------------------
(Printed Name of Notary)
My Commission Expires:____________
THE STATE OF TEXAS
COUNTY OF GALVESTON
On this ___day of day of , 1997, personally appeared the , who being
duly sworn, did say before me that he is the _______________ of MOODY NATIONAL
BANK OF GALVESTON (the "Bank"), and that he executed the foregoing instrument by
authority of and on behalf of the Bank and that he acknowledged said instrument
to be his and the Bank's voluntary act and deed.
---------------------------------
NOTARY PUBLIC in and for the
State of Texas
----------------------------------
(Printed Name of Notary)
My Commission Expires:____________
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<PAGE>
EXHIBIT "A"
Hal Robert Pettigrew, Jr. Trust
Charles Gordon Pettigrew Trust
Jason Crockett Pettigrew Trust
Benjamin Virgil Pettigrew Trust
Amy Gay Margaret Pettigrew
Trust
<PAGE>
EXHIBIT "B"
INVESTMENT GUIDELINES
ASSETS OF THE TRUSTS SHALL BE INVESTED IN CORPORATE SECURITIES,
SECURITIES TRADED ON THE NASDAQ STOCK EXCHANGE, SECURITIES TRADED ON THE NEW
YORK STOCK EXCHANGE, SHORT SALES OF PUBLICLY TRADED SECURITIES, U.S. TREASURY OR
AGENCY SECURITIES, MARGIN ACCOUNTS WITH COVERED PUTS OR CALLS, AND MONEY-MARKET
ACCOUNTS, AS SHALL BE DIRECTED, FROM TIME TO TIME BY ASSIGNOR. UPON WRITTEN
INSTRUCTION FROM ASSIGNOR, MNB SHALL CONSUMMATE SUCH SECURITIES TRANSACTIONS AS
SOON AS IS PRACTICABLE. FUNDS NOT INVESTED IN SECURITIES SHALL BE DEPOSITED IN
AN INTEREST BEARING MONEY-MARKET ACCOUNT AT MNB. IN NO EVENT SHALL MORE THAN
$200,000 BE INVESTED AT ANY ONE TIME IN ANY SINGLE ENTITY.
<PAGE>
MOODY NATIONAL BANK
TRUST DEPARTMENT
- --------------------------------------------------------------------------------
Schedule of Annual Fees (Payable Quarterly)
- --------------------------------------------------------------------------------
CURRENT MARKET VALUE PERCENTAGE
OF ACCOUNT RATE
---------- ----
FIRST $1,000,000.00 1%
NEXT $1,000,000.00 .80 OF 1%
NEXT $2,000,000.00 .70 OF 1%
OVER $4,000,000.00 .50 OF 1%
-10-
EXHIBIT C
JOINT FILING STATEMENT
We, the undersigned, hereby express our agreement that the attached Schedule 13D
is filed on behalf of each of us, and expressly disclaim membership and
participation in any group.
Dated: June 24, 1999
HAL ROBERT PETTIGREW, JR. TRUST
/S/ VIRGIL B. PETTIGREW
Virgil B. Pettigrew
Trustee
CHARLES GORDON PETTIGREW TRUST
/S/ VIRGIL B. PETTIGREW
Virgil B. Pettigrew
Trustee
JASON CROCKETT PETTIGREW TRUST
/S/ VIRGIL B. PETTIGREW
Virgil B. Pettigrew
Trustee
BENJAMIN VIRGIL PETTIGREW TRUST
/S/ VIRGIL B. PETTIGREW
Virgil B. Pettigrew
Trustee
AMY GAY MARGARET PETTIGREW TRUST
/S/ VIRGIL B. PETTIGREW
Virgil B. Pettigrew
Trustee
VIRGIL B. PETTIGREW
/S/ VIRGIL B. PETTIGREW
Virgil B. Pettigrew, individually
CLEARVIEW INVESTMENTS, LTD.
By: Clearview Equities, Inc.
By: /s/ Carla B. Fulton
Its: Vice President
CLEARVIEW EQUITIES, INC.
By: /s/ Ronald Black
Its: Vice President
NORMAN SIEGAL
/S/ NORMAN SIEGAL
Norman Siegal, individually
