SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13, OR 15(D) OF THE SECURITIES
EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported) NOVEMBER 7, 1996
HOMEOWNERS GROUP, INC.
(Exact name as specified in charter)
DELAWARE 0-17338 65-0033743
(State or other jurisdiction (Commission (IRS Employer
of incorporation) File Number) Identification No.)
400 SAWGRASS CORPORATE PARKWAY, SUNRISE, FLORIDA 33325
(Address of principal executive offices) (Zip code)
Registrant's telephone number, including area code (954) 845-9100
<PAGE>
ITEMS 1. AND 2. CHANGE IN CONTROL/ACQUISITION OR DISPOSITION OF ASSETS
Effective October 31, 1996, the Company has entered into an amendment to the May
14, 1996 merger agreement with The Cross Country Group, Inc. ("Cross Country"),
under which the price at which Cross Country will acquire the Company's stock
was modified to $2.06 per share in cash. The amendment to the merger agreement
extends the closing date to no later than March 1, 1997. The merger remains
subject to a number of conditions, including approval of the transactions by
regulatory authorities and the Company's stockholders.
As part of the amendment to the merger agreement, the Company's stock rights
plan has been amended to permit Cross Country and its affiliates to buy an
unlimited number of shares in privately negotiated transactions. The stock
rights plan amendment is not effective until three days after the information
was made public and provided that no other bid on the Company is made within
such three day period. The information was made public on November 7, 1996.
In addition, an affiliate of Cross Country has purchased the $5.2 million
judgment obtained by Acceleration National Insurance Company against a
subsidiary of the Company. Cross Country has agreed under certain conditions to
take no action to collect on the judgment before January 31, 1997. The Company
has guaranteed the repayment of the judgment and has pledged the shares of two
of its subsidiaries, Homeowners Marketing Services, Inc. and Homeowners
Marketing Services International, Inc. to secure the guarantee. These
subsidiaries have also guaranteed security interests in their assets to secure
the guarantee.
ITEMS 7. EXHIBITS
GUARANTY AND PLEDGE AGREEMENT
THIS GUARANTY AND PLEDGE AGREEMENT (the "Agreement") is made and
entered into as of this 31st day of October, 1996, by and between The Cross
Country Group, L.L.C. ("Secured Party") and Homeowners Group, Inc. ("Pledgor").
RECITALS
WHEREAS, simultaneous with the execution and delivery of this
Agreement, Secured Party has acquired from Acceleration National Insurance
Company all its rights under that certain judgment in consolidated cases styled
ACCELERATION NATIONAL INSURANCE COMPANY V. HOMEOWNERS MARKETING SERVICES, INC.,
ET AL, in the Court of Common Pleas, Franklin County, Ohio, Case No.
91CVH11-9404 and 94CVH05-3083 (the "Judgment");
WHEREAS, Secured Party, Pledgor and Homeowners Marketing Services, Inc.
("HMSI") have, contemporaneously with the execution of this Guaranty and Pledge
Agreement, entered into a Settlement Agreement with respect to the Judgment to,
among other things, extend the date by which amounts payable by HMSI must be
paid (the "Settlement Agreement");
WHEREAS, Pledgor is the owner of a stock certificate evidencing 1,000
shares of stock of HMSI (the "HMSI Stock"), representing a 100% interest in
HMSI;
WHEREAS, Pledgor is the owner of a stock certificate evidencing 500
shares of Homeowners Marketing Services International, Inc. ("HMSII") stock (the
"HMSII Stock"), representing a 100% interest in HMSII;
WHEREAS, CC Acquisition Corporation, an affiliate of the Secured Party,
has confirmed its intent to consummate the transactions described in that
certain Agreement and Plan of Merger dated as of May 14, 1996 among Pledgor, CC
Acquisition Corporation and The Cross Country Group, Inc., as amended by
amendment of even date herewith;
WHEREAS, Secured Party has required that Pledgor enter into this
Guaranty and Pledge Agreement as a condition to the Secured Party entering into
the Settlement Agreement;
NOW THEREFORE, in consideration of the premises and the mutual
covenants contained herein, and for other good and valuable consideration, the
parties hereto agree as follows:
AGREEMENT
I. GUARANTEE OF OBLIGATIONS. In consideration of Secured Party's
execution of the Settlement Agreement, Pledgor hereby absolutely and
unconditionally guarantees to Secured Party the performance of the obligations
of HMSI under the Judgment and the Settlement Agreement.
<PAGE>
2. PLEDGE OF PLEDGED SHARES. As security for the guaranty set forth in
Section 1 above, Pledgor hereby pledges to Secured Party, and grants to Secured
Party, a first priority security interest in the HMSI Stock and the HMSII Stock
(collectively, the "Pledged Shares").
3. DELIVERY OF PLEDGED SHARES. The certificates representing the
Pledged Shares are hereby delivered to Secured Party, to be held by Secured
Party, in accordance with the terms of this Agreement, accompanied by duly
executed instruments of transfer.
4. REPRESENTATIONS OF PLEDGOR. Pledgor hereby represents and warrants
that it is the record and beneficial holder of the Pledged Shares free and clear
of any liens affecting the title thereto, except for liens created by this
Agreement. Pledgor hereby represents and warrants that it has the right to
pledge the Pledged Shares.
5. RIGHTS OF PLEDGOR. During such time that Secured Party holds the
Pledged Shares, and until such time as Secured Party forecloses on such Pledged
Shares pursuant to the terms of paragraph 6 hereof, Pledgor shall be the owner
of such Pledged Shares and shall have the right to vote and give consents with
respect to the Pledged Shares and to collect and receive dividends paid in
respect of the Pledged Shares, and Secured Party shall have no right to sell,
transfer, pledge, hypothecate or otherwise transfer the Pledged Shares to any
third party. Notwithstanding the foregoing, and in addition to its rights
pursuant to Section 6 hereof, in the event that there shall be and for so long
as there shall be a continuing default by Pledgor under the Judgment and/or the
Settlement Agreement, Secured Party shall have the right to vote the Pledged
Shares.
6. DEFAULTS AND REMEDIES. (a) In the event that HMSI shall default in
the performance of its obligations under the Judgment and/or the Settlement
Agreement, beyond any grace or cure period provided therein, and Pledgor shall
have failed within five (5) days of notice thereof from Secured Party to cure
the same, Secured Party shall have all rights with respect to the Pledged Shares
as shall be provided to Secured Party under the Uniform Commercial Code as then
in effect in the State of Florida.
(b) Pledgor agrees that any notice by the Secured Party of the proposed
disposition of the Pledged Shares or any other intended action hereunder,
whether required by the Uniform Commercial Code or otherwise, shall constitute
reasonable notice to Pledgor if the notice is sent by a recognized overnight
delivery service at least ten (10) days before the action to the Pledgor at 400
Sawgrass Corporate Parkway, Sunrise, Florida 33325 or to any other address which
Pledgor has specified in writing to the Secured Party as the address to which
notices shall be given to Pledgor.
7. RELEASE. Immediately upon the compliance in full with the Judgment
and/or Settlement Agreement, in accordance with the terms thereof, Secured Party
shall redeliver the Pledged Shares to Pledgor, together with all instruments of
transfer delivered herewith, free and clear of any and all liens affecting title
thereto, and Pledgor's obligations hereunder shall terminate.
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<PAGE>
8. GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of, and enforced in the courts of, the Commonwealth of
Massachusetts.
9. COUNTERPART SIGNATURES. This Agreement may be signed in one or more
counterparts.
10. HEADINGS. The headings are for the convenience of reference only,
and do not form a part hereof and in no way define, limit, describe, modify or
interpret the meanings of the parties, the scope of this Agreement or the intent
of any Section hereof.
11. SEVERABILITY. If for any reason any provision or provisions hereof
are determined to be invalid and contrary to any existing or future law, such
invalidity shall not impair the operation or affect of those portions of this
Agreement which are valid.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
THE CROSS COUNTRY GROUP, L.L.C.
By: /s/ Sidney D. Wolk
___________________________________
Sidney D. Wolk, President
HOMEOWNERS GROUP, INC.
By: /S/ C. GREGORY MORRIS
____________________________________
C. Gregory Morris, Vice President,
Treasurer & Chief Financial Officer
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<PAGE>
SECURITY AGREEMENT
THIS SECURITY AGREEMENT (the "Agreement") is entered into as of October
31, 1996, by and among The Cross Country Group, L.L.C. (the "Secured Party"),
Homeowners Marketing Services, Inc. ("HMSI") and Homeowners Marketing Services
International, Inc. ("HMSII" and collectively with HMSI, the "Debtors").
RECITALS
WHEREAS, simultaneous with the execution and delivery of this
Agreement, Secured Party has acquired from Acceleration National Insurance
Company of all its rights under that certain judgment in consolidated cases
styled ACCELERATION NATIONAL INSURANCE COMPANY V. HOMEOWNERS MARKETING SERVICES,
INC., ET AL, in the Court of Common Pleas, Franklin County, Ohio, Case No.
91CVH11-9404 and 94CV1D5-3083 (the "Judgment");
WHEREAS, Secured Party, Homeowners Group, Inc. and HMSI have,
contemporaneously with the execution of this Security Agreement, entered into a
Settlement Agreement with respect to the Judgment to, among other things, extend
the date by which amounts payable by HMSI must be paid (the "Settlement
Agreement");
WHEREAS, CC Acquisition Corporation, an affiliate of the Secured Party,
has confirmed its intent to consummate the transactions described in that
certain Agreement and Plan of Merger dated as of May 14, 1996 among CC
Acquisition Corporation, Homeowners Group, Inc. and The Cross Country Group,
Inc., as amended by amendment of even date herewith;
WHEREAS, Secured Party has required that Debtors enter into this
Security Agreement as a condition to the Secured Party entering into the
Settlement Agreement;
NOW THEREFORE, in consideration of the premises and mutual covenants
contained herein and other good and valuable consideration, the parties hereto
agree as follows:
1. HMSII GUARANTY. In consideration of Secured Party's execution of the
Settlement Agreement, HMSII absolutely and unconditionally guarantees the
performance by HMSI of its obligations under the Judgment and the Settlement
Agreement, as amended (collectively, the "Obligations").
2. SECURITY INTEREST. In consideration of and as an inducement for the
Secured Party's execution of the Settlement Agreement, Debtors hereby grant the
Secured Party a security interest (the "Security Interest") in each of the
assets of the Debtors (the "Collateral") to secure HMSI's Obligations and
HMSII's guaranty thereof.
3. REPRESENTATIONS AND WARRANTIES OF DEBTORS. The Debtors represent and
warrant, and so long as the Judgment remains unpaid shall be deemed continuously
to represent and warrant, that:
<PAGE>
(a) The Debtors are the owners of the Collateral free of all
security interests or other encumbrances except for the security interest in
favor of Secured Party;
(b) This Security Agreement is being executed on behalf of Debtors
by one or more properly authorized officers and all necessary actions have been
taken by Debtors to authorize such execution.
(c) The Debtors are engaged in business operations which are carried
on at the following address: 400 Sawgrass Corporate Parkway, Sunrise, Florida
33325.
4. COVENANTS OF DEBTORS. So long as the Obligations of HMSI under the
Settlement Agreement and/or the Judgment remain outstanding, the Debtors: (a)
will defend the Collateral against the claims and demands of all other parties;
will keep the Collateral free from all security interests or other encumbrances
except the Security Interest; (b) will keep accurate and complete records
concerning the Collateral; at the Secured Party's request will mark any such
records and the Collateral to give notice of the Security Interest; (c) will,
upon demand, deliver to Secured Party any documents relating to the Collateral
or any part thereof, and any and all other schedules, documents and statements
which the Secured party may from time to time request; (d) will notify the
Secured Party promptly in writing of any change in the Debtors' address
specified above; and (e) in connection herewith will execute and deliver to the
Secured Party such financing statements and other documents, pay all costs of
and filing financing statements and other documents in all public offices
requested by the Secured Party and do such other things as the Secured Party may
request to protect the Collateral and Secured Party's Security Interest.
5. DEFAULTS AND REMEDIES. (a) In the event that HMSI shall default in
the performance of its Obligations under the Settlement Agreement and/or the
Judgment beyond any grace or cure period provided therein, and HMSII shall have
failed within five (5) days of notice of such default and expiration of any
applicable cure period from Secured Party to cure the same (such default and
failure to cure, an "Event of Default"), Secured Party shall have all rights
with respect to the Collateral as shall be provided to Secured Party under the
Uniform Commercial Code as then in effect in the State of Florida.
(b) The Debtors agree that any notice by the Secured Party of the
sale or disposition of the Collateral or any other intended action hereunder,
whether required by the Uniform Commercial Code or otherwise, shall constitute
reasonable notice to the Debtors if the notice is sent by a recognized overnight
delivery service at least ten (10) days before the action to the Debtors'
address as specified in this Agreement or to any other address which the Debtors
have specified in writing to the Secured Party as the address to which notices
shall be given to the Debtors.
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<PAGE>
6. MISCELLANEOUS.
(a) The Debtors authorize the Secured Party at the Debtors' expense
to file any financing statement or other documents or statements relating to the
Collateral (without the Debtors' signature thereon) which the Secured Party
deems appropriate, and the Debtors appoint the Secured Party as the Debtors'
attorney-in-fact to execute any such financing statement or statements in the
Debtors' name and to perform all other acts which the Secured Party deems
appropriate to perfect and to continue perfection of the Security Interest.
(b) After any Event of Default, the Secured Party may notify any
party obligated to pay proceeds of the existence of the obligation under the
Satisfaction Agreement and may direct them to make payments of all proceeds to
the Secured Party.
(c) No delay or omission by the Secured Party in exercising any
right hereunder or with respect to the Judgment and/or the Settlement Agreement
shall operate as a waiver of that or any other right, and no single or partial
exercise of any right shall preclude the Secured Party from any other or future
exercise of the right or the exercise of any other right or remedy. All rights
and remedies of the Secured Party under this Agreement and under the Uniform
Commercial Code shall be deemed cumulative.
(d) The terms "Secured Party" and "Debtors" as used in this
Agreement include the heirs, personal representatives, and successors or assigns
of those parties.
(d) This Agreement may not be modified or amended nor shall any
provision of it be waived except in a writing signed by the Debtors and by an
authorized officer of the Secured Party.
(e) This Agreement shall be construed under the Florida Uniform
Commercial Code and any other applicable Florida laws in effect from time to
time.
(f) The invalidity or unenforceability of any provision of this
Agreement shall not affect the validity or enforceability of the remaining
provisions.
(g) All sections and descriptive headings in this Agreement are
inserted for convenience only, and shall not affect the construction or
interpretation hereof.
(h) This Security Agreement is a continuing agreement which shall
remain in force and effect until all obligations under the Satisfaction
Agreement have been satisfied in full.
(i) This Security Agreement may be signed in one or more
counterparts.
IN WITNESS WHEREOF, each party has executed this Agreement by its duly
authorized representative as of the date set forth above.
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<PAGE>
HOMEOWNERS MARKETING SERVICES, INC.
By: /S/ C. GREGORY MORRIS
______________________________________________
C. Gregory Morris, Vice President, Treasurer &
Chief Financial Officer
HOMEOWNERS MARKETING SERVICES INTERNATIONAL, INC.
By: /S/ C. GREGORY MORRIS
______________________________________________
C. Gregory Morris, Vice President, Treasurer &
Chief Financial Officer
THE CROSS COUNTRY GROUP, L.L.C.
By: /S/ SIDNEY D. WOLK
______________________________________________
Sidney D. Wolk, President
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<PAGE>
AGREEMENT FOR SATISFACTION OF JUDGMENT
This Agreement for Satisfaction of Judgment (the "Agreement") is
entered into as of October 31, 1996 among Homeowners Group, Inc. ("HOMG"),
Homeowners Marketing Services, Inc. ("HMS") and The Cross Country Group, L.L.C.
("CC").
BACKGROUND
A. On or about November 20, 1991, Acceleration National Insurance
Company ("ANIC") filed a six-count complaint in the Court of Common Pleas of
Franklin County, Ohio, in a case styled ACCELERATION NATIONAL INSURANCE COMPANY
V. HOMEOWNERS MARKETING SERVICES, INC., ET AL, Case No. 91CVH11-9404. The
complaint was subsequently amended to include ten counts.
B. On or about May 3, 1994, ANIC filed a fifteen-count complaint in the
Court of Common Pleas of Franklin County, Ohio, in a case styled ACCELERATION
NATIONAL INSURANCE COMPANY V. HOMEOWNERS MARKETING SERVICES, INC., ET AL, Case
No. 94CVH05-3083. The two complaints were consolidated and tried as one action
commencing on November 6, 1995 (the "Litigation").
C. On December 20, 1995, judgment was entered in favor of ANIC against
HMS for the sum of $5,156,022.00 plus interest and costs of the Litigation (the
"Judgment"). Judgment was also entered in favor of Defendant HOMG.
D. HMS filed a notice of appeal from the Judgment initiating Case No.
96APE01-68 and Case No. 96APE01-69 in the Court of Appeals, Franklin County,
Ohio (the "Appeal"). On or about January 29, 1996, ANIC filed a conditional
cross-appeal of each of HMS' appeals in the Court of Appeals of Franklin County,
Ohio, which cross-appeals are currently pending (the "Cross-Appeal").
E. ANIC initiated post judgment proceedings in Florida and elsewhere,
including discovery in aid of execution. On March 13, 1996, the Circuit Court
for Broward County, Florida dismissed an action by HMS which contested the
domestication of the Judgment in Florida.
F. HOMG applied for and held the right to receive a federal income tax
refund from the Internal Revenue Service ("IRS") for the 1994 taxable year (the
"Refund Claim").
G. HOMG entered into an Agreement and Plan of Merger with The Cross
Country Group, Inc. and CC Acquisition Corporation, affiliates of CC, pursuant
to which, subject to the approval of the stockholders of HOMG, CC Acquisition
Corporation will acquire the outstanding shares of HOMG (the "Merger
Agreement").
<PAGE>
H. On May 2, 1996, Accel International Corporation ("Accel"), ANIC,
HOMG and HMS entered into an Agreement for Satisfaction of Judgment and on May
7, 1996, entered into a First Amendment to May 2, 1996 Agreement for
Satisfaction of Judgment (collectively, the "May Agreement").
I. On August 30, 1996, HOMG received the Refund Claim in the amount of
$1,401,785.20 and paid the same to ANIC and Accel.
J. As of October 31, 1996, CC purchased all right, title and interest
of Accel and ANIC pursuant to the Judgment.
K. The parties to this Agreement desire to provide for the satisfaction
and release of the Judgment.
STATEMENT OF AGREEMENT
In consideration of their mutual promises and covenants, the parties
agree as follows:
1. RECITALS. The foregoing recitals are true and correct and repeated
herein in their entirety.
2. CASH PAYMENT. CC, as assignee of the rights of ANIC, agrees to
accept the sum of $2,698,214.80 (the "Judgment Amount") plus interest at 10% per
annum since September 5, 1996, as provided in Section 8, plus interest at 10%
per annum on $4,100,000 from September 1, through September 4, 1996
(collectively, the "Payoff Amount") in full and complete satisfaction of the
Judgment on the condition such payment is received by CC no later than the
closing of the initial Merger Agreement or January 31, 1997, whichever occurs
first.
3. INCOME TAX REFUND. CC hereby acknowledges that HOMG has received
the Refund Claim as set forth in Section 3 of the May Agreement and has paid the
same in full to Accel and ANIC, and that the Judgment Amount is the net amount
owed after giving effect to such payment of the Refund Claim. CC further agrees
to execute any and all documents reasonably required by HOMG to terminate the
security interest granted pursuant to the May Agreement with respect to the
Refund Claim.
4. DISMISSAL OF APPEAL. HOMG and HMS hereby represent and warrant that
the Appeal and Cross-Appeal have been dismissed with prejudice.
5. FORBEARANCE OF COLLECTION EFFORTS. Unless sooner terminated pursuant
to the provisions of Section 7 of this Agreement, CC, as the assignee of the
rights of ANIC, will not undertake prior to January 31, 1997, any act to execute
on the Judgment, including the issuance or service of writs of attachment,
garnishment or execution from any court, or to obtain discovery in aid of
execution from any third party.
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<PAGE>
6. CONDITION PRECEDENT TO CLOSING OF MERGER AGREEMENT. HOMG covenants,
represents and warrants that satisfaction of the Judgment in accordance with the
terms of this Agreement shall be a condition precedent to the closing of the
Merger Agreement.
7. CONTINGENCIES AND TERMINATION. The obligations of CC, as the
assignee of ANIC, to accept the Payoff Amount in full satisfaction of the
Judgment and to forbear from any and all efforts to enforce the Judgment are
contingent upon the closing of the Merger Agreement. Sections 2 and 5 of this
Agreement shall become null, void, and of no further force or effect at the sole
option of CC upon the occurrence of any one of the following events:
(a) the Merger Agreement has not been closed on or before January
31, 1997;
(b) HOMG advises CC or either HOMG or CC publicly announces that the
Merger Agreement has been abandoned. HOMG further agrees to directly
notify CC within twenty-four hours should the proposed Merger Agreement
be abandoned by HOMG for any reason;
(c) the stockholders of HOMG fail to approve and to authorize the
Merger Agreement; or
(d) HOMG or CC fails to obtain the approval of any government
regulatory body or agency from which approval of the Merger Agreement
is required prior to closing of the Merger Agreement.
If any of the foregoing events occur and CC elects to terminate its
agreements and commitments set forth in Sections 2 and 5 of this Agreement, CC
shall promptly notify HOMG and HMS in writing of its decision to do so.
8. INTEREST. Interest on the unpaid portion of the Judgment Amount
shall accrue at a per annum rate of 10% starting September 5, 1996.
9. EFFECT OF TERMINATION. In the event CC elects in accordance with
Section 7 of this Agreement to terminate its obligations to accept the Payoff
Amount in full satisfaction of the Judgment and to forebear from any and all
efforts to enforce the Judgment, the parties shall be in the same position they
were in prior to this Agreement, except that CC shall be free to enforce the
Judgment as reduced by the Refund Claim.
10. MUTUAL RELEASE. At the closing of the Merger Agreement and upon
receipt by CC of either the Payoff Amount (if such payment occurs on or before
January 31, 1997) or the Judgment, as reduced by the Refund Claim (if such
payment occurs after January 31, 1997), CC, HOMG and HMS will execute and
exchange a mutual release in the form attached hereto as Exhibit 1. Within 30
days after receiving such payment, CC shall file a Satisfaction of Judgment for
each action pending in: (i) the Circuit Court of Broward County, Florida, styled
HOMEOWNERS MARKETING SERVICES, INC. V. ACCELERATION NATIONAL INSURANCE COMPANY.
Case No. 96-001110
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<PAGE>
CACE (12) (the "Domestication Action"); and (ii) the Court of Common Pleas of
Franklin County, Ohio, styled ACCELERATION NATIONAL INSURANCE COMPANY V.
HOMEOWNERS MARKETING SERVICES, INC., ET AL, Consolidated Case Nos. 91CVH11-9404,
94CVH05-3083 (the "Ohio Action"), and be responsible for dismissing with
prejudice each of the following actions: (i) the Ohio Action; (ii) the
Domestication Action; (iii) that certain action pending in the Circuit Court of
Broward County, Florida, styled ACCELERATION NATIONAL INSURANCE COMPANY V.
HOMEOWNERS MARKETING SERVICES, INC., ET AL, Case No. 96-001152 (18); and (iv)
that certain action pending in the Circuit Court of Dade County, Florida, styled
ACCELERATION NATIONAL INSURANCE COMPANY V. HOMEOWNERS MARKETING SERVICES, INC.,
Case No. 96-00850 (CA) 23.
11. ADDITIONAL REPRESENTATIONS AND WARRANTIES. CC, HOMG and HMS each
warrants and represents that the officer signing this Agreement on its behalf is
authorized to do so and to bind the entity to the terms of this Agreement. By
execution of this Agreement, the parties represent that they have the capacity
to execute this Agreement on behalf of HMS, HOMG and CC, respectively. HMS and
HOMG hereby represent and warrant: (i) that they have not been released from the
Judgment and agree not to contest the validity of the Judgment; (ii) that they
have made no assignment of their claims or causes of action against ANIC set
forth in the Litigation; and (iii) that no other person has any right to or
interest in them.
12. GOVERNING LAW; CONSENT TO JURISDICTION. This Agreement shall be
construed according to the laws of the State of Massachusetts. Should any
dispute arise regarding this Agreement which the parties are unable to resolve,
the parties agree that the Superior Court of Suffolk County, Massachusetts shall
have exclusive jurisdiction to adjudicate any and all such controversies.
13. CONSTRUCTION. The parties to this Agreement have been represented
by counsel in connection with the negotiations and drafting of this Agreement
and any ambiguity in this Agreement shall not be construed against any party.
Nothing herein expressed or implied is intended or shall be construed to confer
upon or give any person, firm, or corporation other than CC, HOMG and HMS and
their respective subsidiaries, affiliates, legal representatives, successors and
assigns, any rights or benefits under or by reason of this Agreement.
14. NOTICES. In the event that any party to this Agreement shall be
required to afford notice in writing to any other party of the occurrence or
non-occurrence of any event, such notice shall be provided as follows:
IF TO CC:
Howard Wolk
The Cross Country Group, Inc.
4040 Mystic Valley Parkway
Medford, Massachusetts 02155
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<PAGE>
WITH A COPY TO:
Robert M. Rosen, Esq.
Lane, Altman & Owens, LLP
101 Federal Street
Boston, Massachusetts 02110
IF TO HOMG OR HMS:
Carl Buccellato
Chairman and Chief Executive Officer
[HOMG or HMS]
400 Sawgrass Corporate Parkway
Sunrise, Florida 33325-6235
WITH A COPY TO:
Paul Berkowitz, Esq.
Greenberg, Traurig, Hoffman, Lipoff, Rosen & Quentel, P.A.
1221 Brickell Avenue
Miami, Florida 33131
15. HOMG GUARANTY AND PLEDGE. In consideration of the execution of this
Agreement by CC, HOMG hereby agrees to guaranty the obligations of HMS under the
Judgment and this Agreement, including, but not limited to, the payment as
described in Section 2 and further agrees to pledge to CC all of its rights,
title and interest in and to the shares of HMS and Homeowners Marketing Services
International, Inc. ("HMSI") owned by HOMG, such guaranty and pledge to be in
form and substance reasonably satisfactory to CC.
16. GRANT OF SECURITY INTEREST BY HMSI AND HMSI. In further
consideration of the execution of this Agreement by CC, HOMG agrees to cause HMS
and HMSI to enter into an agreement providing for the guaranty of the obligation
of HOMG under the Judgment and this Agreement, including, but not limited to,
the payment as described in Section 2 and further providing to secure that
guaranty by granting a security interest to CC in their assets, such agreement
to be in form and substance reasonably satisfactory to CC.
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<PAGE>
IN WITNESS WHEREOF, each party has executed this Agreement by its duly
authorized representative on the date set forth below.
HOMEOWNERS GROUP, INC.
By /S/ C. GREGORY MORRIS
_______________________________________
C. Gregory Morris, Vice President,
Treasurer & Chief Financial Officer
HOMEOWNERS MARKETING SERVICES, INC.
By /S/ C. GREGORY MORRIS
_______________________________________
C. Gregory Morris, Vice President,
Treasurer & Chief Financial Officer
THE CROSS COUNTRY GROUP, L.L.C.
By: /S/ SIDNEY D. WOLK
____________________________________________
Name: Sidney D. Wolk
Title: President
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FIRST AMENDMENT TO RIGHTS AGREEMENT
THIS IS A FIRST AMENDMENT TO RIGHTS AGREEMENT (the "Amendment") dated
as of October 31, 1996 between Homeowners Group, Inc., a Delaware corporation
(the "Company"), and Continental Stock Transfer & Trust Company (the "Rights
Agent"). All capitalized terms without definition used in this Amendment shall
retain their respective meanings as specified in the Rights Agreement (as
defined hereafter).
BACKGROUND
Pursuant to the Rights Agreement (the "Rights Agreement") dated
November 1, 1990 between the Company and the Rights Agent, the Board of
Directors of the Company declared a dividend distribution of one right ("Right")
for each share of common stock, par value $.01 per share (the "Common Stock"),
of the Company outstanding at the close of business on November 12, 1990. Such
Rights entitle the holders thereof to acquire additional shares of Common Stock
upon the occurrence of certain prescribed events as set forth in the Rights
Agreement. The Company and the Rights Agent have deemed it advisable to amend
certain terms of the Rights Agreement, subject to the terms and conditions of
this Amendment.
TERMS
In consideration of the mutual covenants contained herein and intending
to be legally bound hereby, the parties hereto agree as follows:
ARTICLE I.
1.1. AMENDMENT TO SECTION 1(A). Section 1(a) of the Rights Agreement is hereby
amended in its entirety as follows:
"(a) 'Acquiring Person' shall mean any Person who or which,
together with all Affiliates and Associates of such Person, shall be
the Beneficial Owner of 20% or more of the shares of Common Stock
then outstanding. Notwithstanding the foregoing, the term 'Acquiring
Person' shall not include: (i) the Company, (ii) any Subsidiary of
the Company, (iii) any employee benefit plan of the Company or of any
Subsidiary of the Company, (iv) any Person or entity organized,
appointed or established by the Company for or pursuant to the terms
of any such plan, (v) The Cross Country Group, Inc. and its
Affiliates and Associates (collectively, 'Cross Country') so long as
after the date hereof, any shares of Common Stock acquired by Cross
Country are purchased in privately negotiated, non-open market
transactions, or (vi) any Person whose beneficial ownership of shares
of voting stock of the Company is increased to 20% or more
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of the shares of Common Stock of the Company then Outstanding solely
by reason of a reduction in the number of issued and outstanding
shares of Common Stock of the Company pursuant to a transaction or
transactions approved by the Continuing Directors of the Company
(provided that such Person shall become an Acquiring Person upon his
acquisition of an additional 1% of the Company's Common Stock)."
1.2 AMENDMENT TO SECTION 1(C). Section 1(c) of the Rights Agreement is hereby
amended in its entirety as follows:
"(c) 'Adverse Person' shall mean any Person declared to be an
Adverse Person by the Board of Directors upon a determination that
the criteria set forth in Section 11(a)(ii)(B) apply to each such
Person. Notwithstanding the foregoing, the term 'Adverse Person'
shall not include Cross Country so long as after the date hereof, any
shares of Common Stock acquired by Cross Country are purchased in
privately negotiated, non-open market transactions."
1.3. AMENDMENT TO SECTION 11(A)(II)(A). Section 11(a)(ii)(A) of the Rights
Agreement is hereby amended in its entirety as follows:
"(A) any Person (other than (u) the Company, (v) any
Subsidiary of the Company, (w) any employee benefit plan of the
Company or of any Subsidiary of the Company, (x) any Person or entity
organized, appointed or established by the Company for or pursuant to
the terms of any such plan, (y) Cross Country, so long as after the
date hereof, any shares of Common Stock acquired by Cross Country are
purchased in privately negotiated, non-open market transactions or
(z) any Person whose beneficial ownership of shares of voting stock
of the Company is increased to 20% or more of the shares of Common
Stock of the Company then outstanding solely by reason of a reduction
in the number of issued and outstanding shares of Common Stock of the
Company pursuant to a transaction or transactions approved by the
Continuing Directors of the Company (provided that such Person shall
become an Acquiring Person upon his acquisition of an additional 1%
of the Company's Common Stock)), alone or together with its
Affiliates and Associates, shall, at any time after the Rights
Dividend Declaration Date (as defined in the WHEREAS clause at the
beginning of this Agreement), became the Beneficial Owner of 20% or
more of the shares of Common Stock then outstanding, unless the event
causing the 20% threshold to be crossed is a transaction set forth in
Section 13(a) hereof, or is an acquisition of shares of Common Stock
pursuant to a tender offer or an exchange offer for all outstanding
shares of Common Stock at a price and on terms determined by at least
a majority of the Continuing Directors who are not officers of the
Company and who are not representatives, nominees, Affiliates or
Associates of an Acquiring Person or Adverse Person or the Person
making such tender or
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exchange offer, after receiving advice from one or more investment
banking firms, to be (a) at a price which is fair to stockholders
(taking into account all factors which such Continuing Directors deem
relevant including, without limitation, prices which could reasonably
be achieved if the Company or its assets were sold on an orderly
basis designed to realize maximum value) and (b) otherwise in the
best interest of the Company and its stockholders; or"
ARTICLE II.
2.1 EFFECTIVENESS OF AMENDMENT. The Company and the Rights Agent hereby agree
that this Amendment shall not become effective or in any way binding upon the
parties hereto until three business days subsequent to the date of a public
announcement of the execution of an amendment to that certain Agreement and Plan
of Merger (the "Amended Plan of Merger") dated as of May 14, 1996, among Cross
Country, CHGI Acquisition Corporation, a wholly-owned subsidiary of Cross
Country, and the Company, provided, however, that during such three day period
no third party entity shall have made a bona fide offer for a Takeover
Transaction (as hereinafter defined) at a price greater than $2.06 per share of
Common Stock. The term "Takeover Transaction" shall mean for purposes herein any
proposal or transaction: (i) relating to a merger or other business combination
involving the Company or any Subsidiary; or (ii) for the acquisition of a
substantial equity interest in the Company or any Subsidiary or a substantial
portion of the assets of the Company or any Subsidiary.
2.2 EFFECT OF AMENDMENT. Except as expressly provided in Article I of this
Amendment, nothing shall affect or be deemed to affect any provisions of the
Rights Agreement, and, except only to the extent that they may be varied hereby,
the Company and the Rights Agent hereby ratify and confirm all of their
agreements and obligations contained in the Rights Agreement, as amended hereby.
2.3 COUNTERPARTS. This Amendment may be executed in two or more counterparts,
each of which shall be deemed an original, but which together shall constitute
one and the same instrument.
2.4 GOVERNING LAW. This Amendment shall be governed by and construed in
accordance with the internal laws of the State of Florida without giving effect
to principles of conflicts of laws.
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IN WITNESS WHEREOF, the parties hereto have executed or caused this
Amendment to be executed by their duly authorized representatives as of the day
and year first above written.
HOMEOWNERS GROUP, INC.
By:/S/ C. GREGORY MORRIS
_______________________________________
C. Gregory Morris, Vice President,
Treasurer & Chief Financial Officer
CONTINENTAL STOCK TRANSFER & TRUST COMPANY
By: /S/ William F. Seegraber
_______________________________________
William F. Seegraber, Vice President
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
HOMEOWNERS GROUP, INC.
NOVEMBER 14, 1996 /S/ C. GREGORY MORRIS
(Date) -------------------------------
C. Gregory Morris
Chief Financial Officer
