Exhibit 99.2(a)
STOCK PURCHASE AGREEMENT
This Stock Purchase Agreement ("Agreement") is made as of
September 22, 2003 (the "Effective Date"), by and among Solico
International, Inc., a Texas corporation (such corporation and/or
its assigns, "Purchaser"), and Victoria & Eagle Strategic Fund,
Ltd., a Cayman Islands corporation ("Seller"). Purchaser and
Seller are sometimes collectively referred to herein as the
"Parties" and individually as a "Party."
RECITALS
Seller owns 2,179,725 shares (the "Common Shares") of the
issued and outstanding shares of common stock, par value $.01 per
share (the "Common Stock"), and 195,351 shares (the "Preferred
Shares") of the issued and outstanding Series A 12% Cumulative
Convertible Preferred Stock, par value $5.00 per share (the
"Preferred Stock"), of American Building Control, Inc., a
Delaware corporation (the "Company").
Purchaser desires to acquire, and Seller desires to sell,
all right, title and interest of Seller in and to the Common
Shares and the Preferred Shares (collectively, the "Shares") on
the terms and conditions set forth herein.
AGREEMENT
The parties, in consideration of the mutual covenants,
agreements and understanding herein contained, and intending to
be legally bound, hereby agree as follows:
ARTICLE I
DEFINITIONS
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For purposes of this Agreement, the following terms have the
meanings specified or referred to in this Article I:
"Agreement" has the meaning set forth in the preamble
hereto.
"Best Efforts" means the efforts that a prudent Person
desirous of achieving a result would use in similar circumstances
to ensure that such result is achieved as expeditiously as
possible.
"Breach" means, with respect to a representation, warranty,
covenant, obligation, or other provision of this Agreement or any
Transaction Document or other certificate or instrument delivered
pursuant to this Agreement, any inaccuracy in or breach of, or
any failure to perform or comply with, such representation,
warranty, covenant, obligation, or other provision.
"Xxxxxx" has the meaning set forth in Section 7.3.
"Xxxxxx Purchase Agreements" has the meaning set forth in
Section 7.3.
"Xxxxxx Shares" has the meaning set forth in Section 7.3.
"Call Option" has the meaning set forth in Section 2.2(b).
"Closing" has the meaning set forth in Section 2.3.
"Closing Date" means the date and time as of which a Closing
actually takes place.
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"Code" means the Internal Revenue Code of 1986, as amended.
"Common Option Price" has the meaning set forth in Section
2.2(a).
"Common Purchase Price" has the meaning set forth in Section
2.1(a).
"Common Shares" has the meaning set forth in the recitals
hereto.
"Common Stock" has the meaning set forth in the recitals
hereto.
"Company" has the meaning set forth in the preamble hereto.
"Company Transactions" has the meaning set forth in Section
5.4.
"Consent" means any approval, consent, ratification, waiver
or other authorization (including any Governmental
Authorization).
"Contemplated Transactions" means all of the transactions
contemplated by this Agreement, including, without limitation:
(a) the delivery of the Purchase Price in exchange for the
Shares, and Purchaser's ownership and control of the Shares;
(a) the execution, delivery and performance of the other
Transaction Documents;
(b) the satisfaction of all conditions set forth in Articles VI
and VII; and
(c) the performance by Purchaser and Seller of their respective
covenants and obligations under this Agreement.
"Contract" means any agreement, contract, obligation,
promise, or undertaking (whether written or oral and whether
express or implied) that is legally binding.
"Damages" has the meaning set forth in Section 9.2.
"Effective Date" has the meaning set forth in the preamble
hereto.
"Encumbrance" means any charge, claim, community property
interest, condition, equitable interest, lien, option, pledge,
security interest, right of first refusal or restriction of any
kind, including any restriction on use, voting, transfer, receipt
of income or exercise of any other attribute of ownership other
than (a) mechanic's, materialmen's and similar liens, (b) liens
for Taxes not yet due and payable or for Taxes that a taxpayer is
contesting in good faith through appropriate Proceedings, (c)
purchase money liens and liens securing rental payments under
capital lease arrangements and (d) other liens arising in the
Ordinary Course of Business and not incurred in connection with
the borrowing of money.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended, or any successor law, and regulations and rules issued
pursuant to that act or any successor law.
"First Closing" has the meaning set forth in Section 2.1(b).
"First Closing Date" means the date and time as of which the
First Closing actually takes place.
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"First Closing Shares" has the meaning set forth in Section
2.1(b).
"GKB Group" has the meaning set forth in Section 7.3.
"Governmental Authorization" means any approval, consent,
license, permit, waiver, or other authorization issued, granted,
given or otherwise made available by or under the authority of
any Governmental Body or pursuant to any Legal Requirement.
"Governmental Body" means any nation, state or other
jurisdiction, or federal, state, local or foreign government, or
governmental or quasi-governmental authority of any nature
(including any agency, court or other tribunal) or body
exercising any administrative, executive, judicial, legislative,
police, regulatory, or taxing authority or power of any nature.
"Indemnifying Party" has the meaning set forth in Section
9.2.
"Indemnified Persons" has the meaning set forth in Section
9.2.
"Joint Defense Proceeding" has the meaning set forth in
Section 9.3.
"Knowledge" means, with respect to an individual, such
individual being actually aware of such fact; with respect to a
Person other than an individual, such Person will be deemed to
have "Knowledge" of a particular fact if any individual who is
serving as a director, officer, partner, executor or trustee of
such Person (or in any similar capacity) has Knowledge of such
fact.
"Legal Requirement" means any federal, state, local,
municipal, foreign, international, multinational, or other
administrative order, constitution, law, ordinance, principle of
common law, regulation, statute, or treaty.
"Material Adverse Effect" means a material and adverse
effect upon the Contemplated Transactions or upon the business,
assets, liabilities, financial condition, operating results,
employee, customer or supplier relations, cash flow or working
capital of the Company; provided, however, that a Material
Adverse Effect shall not be deemed to have occurred due solely to
the continued deterioration of the Company's financial condition
consistent with the adverse changes in such financial condition
that have occurred over the past several fiscal quarters of the
Company.
"Offeror" has the meaning set forth in Section 2.5.
"Option Closing" has the meaning set forth in Section
2.2(d).
"Option Closing Date" means the date and time as of which
the Option Closing, if any, actually takes place.
"Option Date" has the meaning set forth in Section 2.2(a).
"Option Price" has the meaning set forth in Section 2.2(a).
"Option Shares" has the meaning set forth in Section 2.2(a).
"Order" means any award, decision, injunction, judgment,
order, ruling, subpoena or verdict entered, issued, made or
rendered by any court, administrative agency or other
Governmental Body or by any arbitrator.
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"Ordinary Course of Business" means an action taken by a
Person that is consistent with the past practices of such Person,
is taken in the ordinary course of the normal day-to-day
operations of such Person, and is not required to be authorized
by the board of directors or other governing body of such Person.
"Party" has the meaning set forth in the preamble hereto.
"Person" means any individual, corporation (including any
non-profit corporation), general or limited partnership, limited
liability company, joint venture, estate, trust, association,
organization, labor union or other entity or Governmental Body.
"Preferred Option Price" has the meaning set forth in
Section 2.2(a).
"Preferred Purchase Price" has the meaning set forth in
Section 2.1(a).
"Preferred Shares" has the meaning set forth in the recitals
hereto.
"Preferred Stock" has the meaning set forth in the recitals
hereto.
"Proceeding" means any action, arbitration, audit, hearing,
investigation, litigation or suit (whether civil, criminal,
administrative, investigative or informal) commenced, conducted
or heard by or before any Governmental Body or arbitrator.
"Purchase Price" means the aggregate of the Common Purchase
Price and the Preferred Purchase Price.
"Purchaser" has the meaning set forth in the preamble
hereto.
"Purchaser Disclosure Schedule" has the meaning set forth in
the preamble to Article IV.
"Put Option" has the meaning set forth in Section 2.2(a).
"Remaining Common Shares" has the meaning set forth in
Section 2.2(a).
"Remaining Preferred Shares" has the meaning set forth in
Section 2.2(a).
"SEC" means Securities and Exchange Commission.
"Second Closing" has the meaning set forth in Section
2.1(c).
"Second Closing Date" means the date and time as of which
the Second Closing actually takes place.
"Second Closing Shares" has the meaning set forth in Section
2.1(c).
"Securities Act" means the Securities Act of 1933, as
amended, or any successor law, and regulations and rules issued
pursuant to that act or any successor law.
"Seller" has the meaning set forth in the preamble hereto.
"Seller Compliance Certificate" has the meaning set forth in
Section 2.3(a)(ii).
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"Seller Disclosure Schedule" has the meaning set forth in
the preamble to Article III.
"Shares" has the meaning set forth in the recitals hereto.
"Tax" or "Taxes" means all federal, state, local, foreign
and other taxes, charges, fees, duties, levies, imposts, customs
or other assessments, including, without limitation, all net
income, gross income, gross receipts, sales, use, ad valorem,
transfer, franchise, profits, profit sharing, license, lease,
service, service use, value added, withholding, payroll,
employment, excise, estimated, severance, stamp, recording,
occupation, premium, property, windfall profits, or other taxes,
fees, assessments, customs, duties, levies, imposts, or charges
of any kind whatsoever, together with any interest, penalties,
additions to tax, fines or other additional amounts imposed
thereon or related thereto, and the term "Tax" means any one of
the foregoing Taxes.
"Transaction Documents" means, collectively, this Agreement,
the Note and all other documents and instruments contemplated by
this Agreement to be executed by one or more of the Parties in
connection with the consummation of the transactions contemplated
herein.
ARTICLE II
STOCK PURCHASE
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2.1 Transactions.
(a) Stock Purchases. On the basis of the representations,
warranties, covenants and agreements and subject to the
satisfaction or waiver of the conditions set forth herein, Seller
agrees to sell to Purchaser, and Purchaser agrees to purchase
from Seller (a) 1,089,863 of the Common Shares, for an aggregate
purchase price of $2,299,610.93 (the "Common Purchase Price"),
and (b) 97,676 of the Preferred Shares, for an aggregate purchase
price of $1,500,000 (the "Preferred Purchase Price").
(b) First Closing. The closing (the "First Closing") of the
purchase of 544,932 of the Common Shares and 48,838 of the
Preferred Shares (collectively, the "First Closing Shares") will
take place at 11:00 a.m. Central, on October 31, 2003 at the
offices of Xxxxxxx & Xxxxx L.L.P., 000 Xxxxxxxx Xxxxxx, Xxxxx
0000, Xxxxxx, Xxxxx 00000, or at such other time and place as the
Parties may agree.
(c) Second Closing. The closing (the "Second Closing") of the
purchase of 544,931 of the Common Shares and 48,838 of the
Preferred Shares (collectively, the "Second Closing Shares") will
take place at 11:00 a.m. Central, on December 15, 2003 at the
offices of Xxxxxxx & Xxxxx L.L.P., 000 Xxxxxxxx Xxxxxx, Xxxxx
0000, Xxxxxx, Xxxxx 00000, or at such other time and place as the
Parties may agree.
2.2 Put/Call Option.
(a) Put Option. Seller shall have the right (the "Put Option"),
but not the obligation, to sell all of the remaining 1,089,862
Common Shares owned by Seller (the "Remaining Common Shares") and
all of the remaining 97,675 Preferred Shares (the "Remaining
Preferred Shares") owned by Seller, after consummation of the
First Closing and the Second Closing (collectively, the "Option
Shares"), on June 30, 2004 (the "Option Date"), for an aggregate
purchase price of $2,997,120.50 for the Remaining Common Shares
(the "Common Option Price") and an aggregate purchase price of
$1,500,000 for the Remaining Preferred Shares (the "Preferred
Option Price"). The aggregate of the Common Option Price and the
Preferred Option Price of $4,497,120.50 is referred to herein as
the "Option Price."
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(b) Call Option. Purchaser shall have the right (the "Call
Option"), but not the obligation, to purchase all, but not less
than all, of the Option Shares from Seller on the Option Date for
the Option Price.
(c) Exercise. Seller may exercise the Put Option, and Purchaser
may exercise the Call Option, by delivery of written notice to
the other Party of Seller's election to exercise the Put Option
or Purchaser's election to exercise the Call Option, as the case
may be, on or before the Option Date.
(d) Closing. The closing of the purchase and sale of the Option
Shares pursuant to the exercise of the Put Option or Call Option
(the "Option Closing") will take place at 11:00 a.m. Central no
later than five (5) business days following the Option Date.
(e) Termination. In the event that Seller does not exercise the
Put Option and Purchaser does not exercise the Call Option by
delivery of notice thereof on or before the Option Date as
provided in this Section 2.2, each of the Put Option and the Call
Option shall automatically terminate.
2.3 Closing Deliveries. At the First Closing, the Second
Closing and any Option Closing (each, a "Closing"):
(a) Seller will:
(i) deliver to Purchaser all certificates representing the
Shares to be purchased at such Closing, duly endorsed (or
accompanied by duly executed stock powers) for transfer to
Purchaser; provided, however, that with respect to any Common
Shares held in "street name," delivery of such Common Shares will
be effected on a delivery versus payment basis by book entry
transfer through the facilities of one or more brokerage firms or
clearing agencies, as specified by the Parties;
(ii) deliver to Purchaser a certificate executed by Seller
stating that (A) each of Seller's representations and warranties
in this Agreement was accurate in all respects as of the
Effective Date and is accurate in all respects as of such Closing
Date as if made on such Closing Date, and (B) the conditions set
forth in Articles VI and VII have been fulfilled (the "Seller
Compliance Certificate"); and
(iii) deliver to Purchaser the other certificates,
instruments and documents referred to in Article VII below and
required to be delivered by Seller on or prior to such Closing
Date.
(b) Purchaser will:
(i) at the First Closing, deliver to Seller the Common
Purchase Price and the Preferred Purchase Price for the Common Shares and
Preferred Shares to be purchased at the First Closing, by wire
transfer of $1,899,806.52 of immediately available funds to an
account designated by Seller;
(ii) at the Second Closing, deliver to Seller the Common
Purchase Price and the Preferred Purchase Price for the Common Shares and
Preferred Shares to be purchased at the Second Closing, by wire
transfer of $1,899,804.41 of immediately available funds to an
account designated by Seller;
(iii) at the Option Closing, if any, deliver to Seller
the Option Price by wire transfer of immediately available funds to
an account designated by Seller;
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(iv) deliver to Seller a certificate executed by Purchaser
stating that each of Purchaser's representations and warranties
in this Agreement was accurate in all respects as of the
Effective Date and is accurate in all respects as of such Closing
Date as if made on such Closing Date; and
(v) deliver to Seller the other certificates, instruments
and documents referred to in Article VII below and required to be
delivered by Purchaser on or prior to such Closing Date.
2.4 Voting Rights; Irrevocable Proxy. From and after the First
Closing until the Second Closing, the Parties agree that
Purchaser alone shall exercise all voting rights with respect to
the Second Closing Shares. Accordingly, effective as of the
First Closing, Seller hereby grants to Purchaser an irrevocable
special power of attorney to act as Seller's attorney-in-fact to
vote on behalf of Seller, and to execute any resolution or
consent evidencing Seller's vote, approval or consent of any
action submitted to the vote, approval or consent, and to execute
on behalf of Seller and deliver any documentation deemed
necessary by Purchaser in connection with any matter or action
taken in respect of or submitted to the vote, consent or approval
of the Second Closing Shares, including, without limitation,
taking action with respect to any matter submitted to the vote of
the holders of Common Stock or Preferred Stock of the Company.
Seller hereby agrees to execute all resolutions, consents,
agreements and other documents deemed necessary by Purchaser to
effect and/or evidence the foregoing, and Seller agrees not to
raise any objection to any action so taken by Purchaser in
respect of the Second Closing Shares. Seller hereby waives any
appraisal rights or rights to dissent under applicable Legal
Requirements arising due to Seller's ownership of the Second
Closing Shares.
2.5 Right of Co-Sale. If at any time after the date of the
Second Closing and prior to the Option Date, Purchaser receives a
bona fide offer or series of offers from a third party or parties
acting in concert (collectively, the "Offeror") to purchase any
of the Common Shares or Preferred Shares (or a combination
thereof), and Purchaser desires to sell Common Shares or
Preferred Shares to the Offeror pursuant to such offer, Purchaser
shall notify Seller in writing of such offer and its terms and
conditions. Within 20 days of the date of such notice, Seller
shall notify Purchaser if it elects to participate in such offer.
If Seller so notifies Purchaser of its intent to participate in
such offer, Seller shall have the right to sell, at the same
price and on the same terms as Purchaser, an amount of Common
Shares and/or Preferred Shares (as applicable) that the Offeror
actually proposes to purchase multiplied by a fraction, the
numerator of which shall be the number of Common Shares and/or
Preferred Shares (as applicable) owned by Seller and the
denominator of which shall be the aggregate number of Common
Shares and/or Preferred Shares (as applicable) owned by Purchaser
and Seller.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF SELLERS.
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Seller represents and warrants to Purchaser as of the date
of this Agreement and as of each Closing Date that, except as
otherwise set forth on the Seller Disclosure Schedule attached
hereto (the "Seller Disclosure Schedule"):
3.1 Organization; Corporate Authority; Good Standing.
(a) Seller is a corporation duly organized, validly existing and
in good standing under the laws of the jurisdiction of its
incorporation, with full corporate power and authority to execute
and deliver this Agreement and to perform its obligations
hereunder.
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3.2 Authority; No Conflict.
(a) Upon the execution and delivery by Seller of the Transaction
Documents to which Seller is a party, each such Transaction
Document will constitute the legal, valid and binding obligation
of Seller, enforceable against the Seller in accordance with its
terms, except (i) as limited by applicable bankruptcy,
insolvency, reorganization, moratorium and other laws of general
application affecting enforcement of creditors' rights generally
and (ii) as limited by laws relating to the availability of
specific performance, injunctive relief or other equitable
remedies.
(b) Seller will not be required to give any notice to or obtain
any Consent from any Person in connection with the execution and
delivery of the Transaction Documents or the consummation or
performance of any of the Contemplated Transactions, and neither
the execution and delivery of the Transaction Documents nor the
consummation or performance of any of the Contemplated
Transactions will, directly or indirectly (with or without notice
or lapse of time):
(i) contravene, conflict with or result in a violation
of (A) any provision of its organizational documents, (B) any currently
effective resolution adopted by its board of directors or its
shareholders or (C) any Legal Requirement or any Order to which
it or any of the assets owned or used by it is subject;
(ii) contravene, conflict with or result in a violation
of any of the terms or requirements of, or give any Governmental Body the
right to revoke, withdraw, suspend, cancel, terminate or modify,
any Governmental Authorization that is held by Seller or that
otherwise relates to its business or any of the assets owned or
used by it;
(iii) contravene, conflict with or result in a violation or
breach of any provision of, or give any Person the right to
declare a default or exercise any remedy under, or to accelerate
the maturity or performance of, or to cancel, terminate or
modify, any Contract, or result in the imposition or creation of
any Encumbrance upon or with respect to any of the assets owned
or used by it.
3.3 Title to Shares. Seller is and will be on the First Closing
Date the record and beneficial owner and holder of all of the
Shares (including the First Closing Shares, the Second Closing
Shares and the Option Shares), Seller is and will be on the
Second Closing Date the record and beneficial owner and holder of
the Second Closing Shares and the Option Shares, and Seller is
and will be on the Option Closing Date, if any, the record and
beneficial owner of the Option Shares, in each case free and
clear of all Encumbrances other than any restrictions on transfer
under applicable federal or state securities laws or under the
Transaction Documents; provided, however, that 59,725 Common
Shares are held in "street name" through Citibank, N.A. No
legend or other reference to any purported Encumbrance appears
upon any certificate representing the Shares other than any
restrictions on transfer under applicable federal or state
securities laws. There are no oral or written agreements
relating to the issuance, sale or transfer by Seller of any right
or interest in the Shares.
3.4 Legal Proceedings; Orders.
(a) There is no pending Proceeding that challenges, or that may
have the effect of preventing, delaying, making illegal, or
otherwise interfering with, any of the Contemplated Transactions.
To the Knowledge of Seller, no such Proceeding has been
threatened and no event has occurred or circumstance exists that
may give rise to or serve as a basis for the commencement of any
such Proceeding.
(b) There is no Order to which Seller, or any of the assets
owned or used by Seller, is subject that may have the effect of
preventing, delaying, making illegal, or otherwise interfering
with, any of the Contemplated Transactions.
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(c) Seller is not subject to any Order that relates to the
business of, or any of the assets owned or used by, the Company.
3.5 Company Transactions. Neither Seller nor any Person related
to Seller is a party to or bound by any Contract with respect to
a Company Transaction other than this Agreement and the other
Transaction Documents, and the Seller and all Persons related to
Seller have terminated all discussions with third parties
regarding Company Transactions. Except for the previously
disclosed Consulting Agreement between the Company and Xxxxxxxxxx
Xxxxxxxx, neither Seller nor any Person related to Seller has or
may acquire any rights under, or is bound by or has or may become
subject to any obligation or liability under, any Contract that
relates to the business of, or any of the assets owned or used
by, the Company. Neither Seller nor any shareholder, director,
officer, employee or other Person related to Seller is indebted
to the Company, nor is the Company indebted (or committed to make
loans or extent or guarantee credit) to any of them. None of
such persons has any direct or indirect ownership interest in any
Person with which the Company is affiliated or with which the
Company has a business relationship, or any Person that competes
with the Company, except for stock in a publicly traded company
owned by such persons representing less than five percent (5%) of
the outstanding capital stock of such company.
3.6 Brokerage. There are no claims for brokerage commissions,
finders' fees or similar compensation in connection with the
Contemplated Transactions based on any arrangement or agreement
binding upon Seller. Seller shall pay, and hold Purchaser
harmless against, any liability, loss or expense (including,
without limitation, reasonable attorneys' fees and out-of-pocket
expenses) arising in connection with any such claim.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF PURCHASER
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Purchaser represents and warrants to Seller as of the date
of this Agreement and as of each Closing Date that, except as set
forth on the Purchaser Disclosure Schedule attached hereto (the
"Purchaser Disclosure Schedule"):
4.1 Organization; Corporate Authority; Good Standing. Purchaser
is a corporation duly organized, validly existing and in good
standing under the laws of the state of its incorporation, with
full corporate power and authority to execute and deliver this
Agreement and to perform its obligations hereunder.
4.2 Authority. Upon the execution and delivery of the
Transaction Documents, each of the Transaction Documents will
constitute the legal, valid and binding obligation of Purchaser,
enforceable against Purchaser in accordance with its terms,
except (i) as limited by applicable bankruptcy, insolvency,
reorganization, moratorium and other laws of general application
affecting enforcement of creditors' rights generally and (ii) as
limited by laws relating to the availability of specific
performance, injunctive relief or other equitable remedies.
4.3 Brokerage. There are no claims for brokerage commissions,
finders' fees or similar compensation in connection with the
Contemplated Transactions based on any arrangement or agreement
binding upon Purchaser. Purchaser shall pay, and hold Seller
harmless against, any liability, loss or expense (including,
without limitation, reasonable attorneys' fees and out-of-pocket
expenses) arising in connection with any such claim.
4.4 Disclosure. No representation or warranty of Purchaser in
this Agreement and no statement in the Purchaser Disclosure
Schedule or any instrument, certificate or document delivered in
connection with the Contemplated Transactions contains any untrue
statement of a material fact or omits
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to state a material fact necessary to make the statements herein
or therein, in light of the circumstances in which they were
made, not misleading.
ARTICLE V
COVENANTS
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5.1 Best Efforts. Between the Effective Date and the Option
Closing Date, each of the Parties will use its reasonable Best
Efforts to take all actions and do all things necessary, proper
or advisable in order to consummate and make effective the
Contemplated Transactions (including satisfaction, but not
waiver, of the conditions set forth in Articles VI and VII).
5.2 Required Approvals. As promptly as practicable after the
Effective Date, Seller will, and, together with Purchaser, will
use its reasonable Best Efforts to cause the Company to, make all
filings required by Legal Requirements to be made by them in
order to consummate the Contemplated Transactions. Between the
Effective Date and the Option Closing Date, Seller will, and,
together with Purchaser, will use its reasonable Best Efforts to
cause the Company to, (a) cooperate with Purchaser with respect
to all filings that Purchaser elects to make or is required by
Legal Requirements to make in connection with the Contemplated
Transactions, (b) give required notices to third parties, (c)
obtain any required third party consents and (d) take any actions
reasonably requested by a third party, in each case, in
connection with the Contemplated Transactions.
5.3 Notification. Until the first to occur of (y) the Option
Closing Date (if the Call Option or Put Option are exercised) or
the Option Date (if neither the Call Option nor the Put Option
are exercised on or before such date) and (z) termination of this
Agreement pursuant to Article VIII, each Party will give prompt
written notice to the other Party (a) if it becomes aware that
any representation or warranty made by such Party herein as of
the Effective Date has, to the best Knowledge of such Party,
subsequently become untrue, (b) of the beach of any covenant
hereunder by any Party and (c) of any other material development
that in its reasonable judgment adversely affects its ability to
consummate the Contemplated Transactions.
5.4 Exclusivity. Until the first to occur of (y) the Option
Closing Date (if the Call Option or Put Option are exercised) or
the Option Date (if neither the Call Option nor the Put Option
are exercised on or before such date) and (z) termination of this
Agreement pursuant to Article VIII, Seller shall not, directly or
indirectly, (a) submit, solicit, initiate, encourage, vote for or
consent to any proposal or offer from any Person or enter into
any Contract or accept any offer relating to any (i)
reorganization, liquidation or recapitalization of the Company,
(ii) merger or consolidation involving the Company, (iii)
purchase or sale of any assets or capital stock (other than a
purchase or sale of equipment in the Ordinary Course of Business)
of the Company or (iv) similar transaction or business
combination involving the Company or the assets of the Company
(each of the foregoing actions described in clauses (i) through
(iv), a "Company Transaction"), or (b) furnish any information
with respect to, assist or participate in or facilitate in any
other manner any effort or attempt to do or seek to do any of the
foregoing.
5.5 Actions with Respect to Shares. Until the first to occur of
(y) the Option Closing Date (if the Call Option or Put Option are
exercised) or the Option Date (if neither the Call Option nor the
Put Option are exercised on or before such date) and (z)
termination of this Agreement pursuant to Article VIII, Seller
agrees that, except for transactions to effect the obtaining of
margin credit, it will not (a) sell, redeem, convert, assign,
exchange, transfer, pledge or otherwise dispose of any of
Seller's right, title and interest in and to the Shares, except
as expressly permitted by this Agreement, or (b) enter into any
other transaction or Contract with the Company without
Purchaser's prior written consent, which written consent may be
withheld in Purchaser's sole discretion.
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5.6 Exchange Act Filings. Each Party shall make all filings as
and when required to be made with the SEC pursuant to the
Exchange Act as a result of the execution of this Agreement and
the consummation of the Contemplated Transactions. Without
limiting the foregoing, the Parties shall make the following
filings:
(a) all filings required pursuant to Section 16(a) of the
Exchange Act, including, without limitation, any Form 3 Initial
Statement of Beneficial Ownership of Securities required to be
filed by Purchaser and its affiliates and any Form 4 Statement of
Changes in Beneficial Ownership required to be filed by Seller;
and
(b) all filings required to pursuant to Rule 13(d)-1(a)
of the Exchange Act, including, without limitation, any Schedule 13D
required to be filed by Purchaser and/or Seller.
ARTICLE VI
CONDITIONS PRECEDENT TO OBLIGATION TO CLOSE
-------------------------------------------
Each Party's obligation to take the actions required to be
taken by such Party at the First Closing, the Second Closing and
any Option Closing is subject to the satisfaction, at or prior to
such Closing, of each of the following conditions (any of which
may be waived by it in writing, in whole or in part):
6.1 Accuracy of Representations. All of the other Party's
representations and warranties in this Agreement (considered
collectively), and each of these representations and warranties
(considered individually), must have been accurate as of the
Effective Date, and must be accurate as of such Closing Date as
if made on such Closing Date.
6.2 Performance.
(a) All of the covenants and obligations that the other Party is
required to perform or to comply with pursuant to this Agreement
at or prior to such Closing (considered collectively), and each
of these covenants and obligations (considered individually),
must have been duly performed and complied with.
(b) Each document required to be delivered by the other Party
pursuant to Section 2.3 must have been delivered, and each of the
other Party's covenants and obligations contained in this
Agreement must have been performed and complied with.
6.3 No Proceedings. There must not be pending against such
Party, or against any Person affiliated with such Party, any
Proceeding (a) involving any challenge to, or seeking damages or
other relief in connection with, any of the Contemplated
Transactions, or (b) that may have the effect of preventing,
delaying, making illegal, or otherwise interfering with any of
the Contemplated Transactions.
6.4 No Prohibition. Neither the consummation nor the
performance of any of the Contemplated Transactions will,
directly or indirectly (with or without notice or lapse of time),
materially contravene, or conflict with, or result in a material
violation of, or cause the Party or any Person affiliated with
the Party to suffer any material adverse consequence under, (a)
any applicable Legal Requirement or Order, or (b) any Legal
Requirement or Order that has been published, introduced, or
otherwise proposed by or before any Governmental Body.
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ARTICLE VII
CONDITION PRECEDENT TO PURCHASER'S OBLIGATION TO CLOSE
------------------------------------------------------
In addition to the conditions set forth in Article VI,
Purchaser's obligation to purchase the First Closing Shares at
the First Closing, to purchase the Second Closing Shares at the
Second Closing, and to purchase the Option Shares at the Option
Closing (in the event the Call Option or Put Option is
exercised), and in each case to take the other actions required
to be taken by Purchaser at each such Closing, is subject to the
satisfaction, at or prior to such Closing, of each of the
following conditions (any of which may be waived in writing by
Purchaser, in whole or in part):
7.1 No Claim Regarding Stock Ownership or Sale Proceeds. There
must not be pending any claim by any Person against the Company
or Seller asserting that such Person (a) is the holder or the
beneficial owner of, or has the right to acquire or to obtain
beneficial ownership of, any of the Shares, or (b) is entitled to
all or any portion of the consideration payable for the Shares.
7.2 Material Adverse Effect. There shall not have occurred any
Material Adverse Effect.
7.3 Other Stock Purchase Transactions. Purchaser, Xxxxxx X.
Xxxxxx ("Xxxxxx") and certain shareholders of the Company
affiliated with Xxxxxx (excluding Seller, the "GKB Group"), shall
have entered into definitive, binding agreements, satisfactory to
Purchaser and its counsel, pursuant to which Purchaser shall
acquire (or have the right to acquire) a minimum of 1,525,432
shares (the "Xxxxxx Shares") of Common Stock (the "Xxxxxx
Purchase Agreements") owned by Xxxxxx and the GKB Group, and all
conditions precedent to the obligations of Xxxxxx and the GKB
Group to sell the Xxxxxx Shares to Purchaser and perform all of
their other obligations under the Xxxxxx Purchase Agreements
shall have been satisfied or waived by Purchaser in writing.
7.4 Resignation of Directors. The size of the board of
directors of the Company shall be five (5) directors. As of the
First Closing Date, there shall be at least one (1) vacancy on
the board of directors of the Company as a result of the
resignation of at least one (1) director in accordance with the
Company's bylaws, such resignation to be effective upon or prior
to the consummation of the First Closing. As of the Option
Closing Date, there shall also be at least one (1) vacancy on the
board of directors of the Company as a result of the resignation
of at least one (1) director in accordance with the Company's
bylaws, such resignation to be effective upon or prior to the
consummation of the Option Closing.
7.5 Approval of Board of Directors. The Company shall have
delivered copies certified as true, correct and complete by the
Secretary of the Company of resolutions (in a form reasonably
satisfactory to Purchaser and its counsel) duly adopted by the
board of directors of the Company:
(a) permanently and irrevocably waiving the Company's right to
redeem the Preferred Stock set forth in Section H.3 of Article 4
of the Company's certificate of incorporation;
(b) effective on or prior to the First Closing, appointing at
least one (1) Person designated by Purchaser to the Company's
board of directors in accordance with the Company's bylaws; and
(c) effective on or prior to the Option Closing, appointing at
least one (1) additional Person designated by Purchaser to the
Company's board of directors in accordance with the Company's
bylaws.
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7.6 Operation of Business. The Company will not have since the
Effective Date (a) entered into any transaction, arrangement or
Contract except on an arm's-length basis in the Ordinary Course
of Business that has resulted in a Material Adverse Effect, (b)
increased any officer's or employee's compensation, incentive
arrangements or other benefits out of the Ordinary Course of
Business that has resulted in a Material Adverse Effect, (c)
redeemed, purchased or otherwise acquired, directly or
indirectly, any of the Company's issued and outstanding capital
stock or equity interests, or any outstanding rights or
securities exercisable or exchangeable for or convertible into
capital stock of the Company, where such redemption, purchase or
acquisition has resulted in a Material Adverse Effect, (d)
amended its certificate of incorporation or bylaws in such a
manner as to cause a Material Adverse Effect, or (e) submitted,
solicited, initiated, voted for or consented to any proposal or
offer from any Person or entered into any Contract or accepted
any offer relating to, any Company Transaction.
7.7 Proceedings. All corporate actions and other actions
required or necessary to be taken by the Company or Seller in
connection with the Contemplated Transactions shall have been
taken at or prior to the Closing and all documents incident
thereto shall be satisfactory in form and substance to Purchaser
and its counsel.
7.8 Filings. The Company and Seller shall have made all filings
required to be made by the Company and Seller under all
applicable Legal Requirements, including, without limitations,
federal and state securities laws, to consummate the Contemplated
Transactions.
7.9 Consents and Approvals. All Consents and Governmental
Authorizations by any Governmental Body or other Person that are
required for the consummation of the Contemplated Transactions or
in order to prevent a breach of, or default under, or a
termination, change in the terms or conditions or modification
of, any Contract to which the Company or Seller is a party, will
have been obtained on terms and conditions satisfactory to
Purchaser.
7.10 Capital Structure. Between the Effective Date and such
Closing Date, the Company will not have issued or entered into
any Contract to issue any shares of its capital stock or options,
warrants or securities convertible into or exercisable for shares
of its capital stock other than shares issuable upon the exercise
of options, warrants or securities convertible into or
exercisable for shares of its capital stock that are outstanding
as of the Effective Date or granted prior to such Closing under
existing option plans on an arm's-length basis in the Ordinary
Course of Business.
7.11 Closing Documents. At each Closing, Seller shall have
delivered to Purchaser all of the following documents:
(a) the Seller Compliance Certificate;
(b) copies of all third party and governmental Consents and
filings required in connection with the consummation of the
Contemplated Transactions (including, without limitation, all
blue sky filings and waivers of all preemptive rights and rights
of first refusal); and
(c) such other documents relating to the Contemplated
Transactions as Purchaser or its counsel may reasonably request.
ARTICLE VIII
TERMINATION
-----------
8.1 Termination Events. This Agreement may, by notice given
prior to or at any Closing, be terminated:
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(a) by either Purchaser or Seller if a material Breach of any
provision of this Agreement has been committed by the other party
and such Breach has not been waived by the non-breaching Party;
(b) by either Party if any of the conditions in Article VI has
not been satisfied as of such Closing Date or if satisfaction of
such a condition is or becomes impossible, and the other Party
has not waived such condition on or before such Closing Date,
unless the Party seeking to terminate this Agreement has caused,
directly or indirectly, such condition to be unsatisfied or
become impossible;
(c) by Purchaser if any of the conditions in Article VII has not
been satisfied as of such Closing Date or if satisfaction of such
a condition is or becomes impossible, and Purchaser has not
waived such condition on or before such Closing Date, unless
Purchaser has caused, directly or indirectly, such condition to
be unsatisfied or become impossible;
(d) by mutual consent of Purchaser and Seller; or
(e) by either Purchaser or Seller if (i) the First Closing has
not occurred on or before November 15, 2003, or such later date
as the Parties may agree upon, or (ii) the Second Closing has not
occurred on or before December 31, 2003, or such later date as
the Parties may agree upon.
8.2 Effect of Termination. If this Agreement is terminated
pursuant to Section 8.1, all further obligations of the Parties
under this Agreement will terminate, except for the obligations
in Article IX and Sections 10.1 and 10.2, and for liability for
any Breach of this Agreement prior to the time of such
termination, all of which shall survive any termination of this
Agreement. Notwithstanding the foregoing, if this Agreement is
terminated by a Party under Section 8.1 because one or more of
the conditions to Closing is not satisfied as a result of the
other Party's intentional or deliberate actions, the terminating
Party will be entitled to pursue all legal remedies, including,
but not limited to actual damages, which right will survive such
termination unimpaired.
ARTICLE IX
INDEMNIFICATION; REMEDIES
-------------------------
9.1 Survival; Right to Indemnification not Affected by
Knowledge. All representations, warranties, covenants, and
obligations in this Agreement and the certificates and other
Transaction Documents delivered pursuant to Section 2.3 will
survive the Closing for a period of twelve (12) months following
the later of (y) December 31, 2003 and (z) the Option Closing (if
any); provided, the representations and warranties and covenants
made under Section 3.3 (Title to Shares) shall survive
indefinitely.
9.2 Indemnification. Subject to the limitations set forth in
Section 9.3 below, each Party (the "Indemnifying Party") will
indemnify and hold harmless the other Party and its respective
representatives, shareholders, controlling persons and affiliates
(collectively, the "Indemnified Persons") for, and will pay to
the Indemnified Persons the amount of, any loss, liability,
claim, damage, expense (including costs of investigation and
defense and reasonable attorneys' fees) or diminution of value,
whether or not involving a third-party claim (collectively,
"Damages"), arising, directly or indirectly, from or in
connection with any Breach of any representation, warranty,
covenant or agreement made by the Indemnifying Party in this
Agreement or any Transaction Document (including the schedules
and exhibits attached hereto or thereto). The remedies provided
in this Section 9.2 will not be exclusive of or limit any other
remedies that may be available to the Parties.
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9.3 Defense of Claims. An Indemnified Person seeking
indemnification under this Article IX shall give written notice
to the Indemnifying Party of the facts and circumstances giving
rise to the claim. In that regard, if any Proceeding shall be
brought or asserted by any third party which, if adversely
determined, would entitle the Indemnified Person to indemnity
pursuant to this Article IX, the Indemnified Person shall within
thirty (30) days notify the Indemnifying Party of the same in
writing, specifying in detail the basis of such claim and the
facts pertaining thereto; provided that the failure to so notify
an Indemnifying Party shall not relieve the Indemnifying Party of
its obligations hereunder except to the extent such failure shall
have harmed the Indemnifying Party. The Indemnifying Party, if
it so elects, shall assume and control the defense of such
Proceeding (and shall consult with the Indemnified Person with
respect thereto), including the employment of counsel reasonably
satisfactory to the Indemnified Person and the payment of
expenses; provided that in the event any Proceeding shall be
brought or asserted by any third party which, if adversely
determined, would not entitle the Indemnified Person to full
indemnity pursuant to this Article IX, the Indemnified Person may
elect to participate in the joint defense of such Proceeding (a
"Joint Defense Proceeding") for which the expenses of such joint
defense will be shares equally by such parties and the employment
of counsel shall be reasonably satisfactory to both parties. If
the Indemnifying Party elects to assume and control the defense
of a Proceeding, it will provide notice thereof within thirty
(30) days after the Indemnified Person has given notice of the
matter and if such Proceeding is not a Joint Defense Proceeding,
the Indemnified Person shall have the right to employ counsel
separate from counsel employed by the Indemnifying Party in any
such action and to participate in the defense thereof, but the
fees and expenses of such counsel employed by the Indemnified
Person shall be at the expense of the Indemnified Person unless
(a) the employment thereof has been specifically authorized by
the Indemnifying Party in writing or (b) the Indemnifying Party
has failed to assume the defense and employ counsel reasonably
satisfactory to the Indemnified Person. Neither the Indemnified
Person nor the Indemnifying Party may consent to the entry of any
judgment with respect to the matter or enter into any settlement
with respect to the matter which judgment or settlement does not
release the other Party from all liability to the third party
with respect thereto without the consent of the other Party,
which consent shall not be unreasonably withheld (it being
understood that the extent to which any Party will be obligated
to pay for Damages resulting from such matter as compared to the
other Party shall be considered in determining whether it is
reasonable for such Party to withhold its consent from the entry
of any judgment or settlement with respect to such matter);
provided that no settlement of a Joint Defense Proceeding may be
effected without the consent of both parties. If there shall be
a settlement to which the Indemnifying Party consents or a final
judgment for the plaintiff in any Proceeding, the defense of
which the Indemnifying Party elected to assume, the Indemnifying
Party shall indemnify the Indemnified Person with respect to the
settlement or judgment.
9.4 Payment of Indemnification Damages. Any payment pursuant to
a claim for indemnification shall be made not later than thirty
(30) days after receipt by the Indemnifying Party of written
notice from the Indemnified Person stating the amount of the
claim, unless the claim is subject to a defense as provided in
Section 9.3, in which case payment shall be made not later than
thirty (30) days after the amount of the claim is finally
determined. Any payment required under this Section 9.4 shall
bear interest at the rate of eighteen percent (18%) per annum,
or, if less, the maximum rate permitted by applicable usury laws
from the date that the Indemnified Person incurred the Damages
for which indemnification is sought. Interest on any unpaid
amount shall be compounded monthly, computed on the basis of a
365-day year and shall be payable on demand. In addition, such
Party shall reimburse the other Party for any and all costs and
expenses of any nature or kind whatsoever (including, without
limitation, all attorneys' fees) incurred in seeking to collect
such Damages following repeated refusal by the owing Party to pay
such Damages and the non-existence of any good faith defense to
payment.
9.5 Limitation on Indemnification. Anything to the contrary
contained in this Article IX notwithstanding, in no event shall
the aggregate liability of Seller under this Article IX exceed
the
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aggregate amounts received by Seller at the First Closing, the
Second Closing, and, if applicable, the Option Closing.
ARTICLE X
GENERAL PROVISIONS
10.1 Expenses. Except as otherwise expressly provided in this
Agreement, each Party to this Agreement will bear its respective
expenses incurred in connection with the preparation, execution,
and performance of this Agreement and the Contemplated
Transactions, including all fees and expenses of agents,
representatives, counsel and representatives, and accountants
unless such Party is entitled to indemnification therefore
pursuant to Article IX above.
10.2 Confidentiality. Purchaser and Seller will maintain in
confidence, and will cause the directors, officers, employees,
agents, and advisors of Purchaser, Seller and the Company to
maintain in confidence, any written, oral, or other information
obtained in confidence from another party or from Purchaser,
Seller or the Company in connection with this Agreement or the
Contemplated Transactions, unless (a) such information is already
known to such party or to others not bound by a duty of
confidentiality or such information becomes publicly available
through no fault of such party, (b) the use of such information
is necessary or appropriate in making any filing or obtaining any
consent or approval required for the consummation of the
Contemplated Transactions, or (c) the furnishing or use of such
information is required by or necessary in connection with legal
Proceedings.
10.3 Press Releases and Announcements. No Party shall issue any
press release or make any public announcement relating to the
subject matter of this Agreement or the Contemplated Transactions
(other than those required by applicable Legal Requirements or by
Order), nor instruct or cause any other Person (including,
without limitation, the Company) to effect the same without the
express written consent of the other Party.
10.4 Notices. All notices, consents, waivers, and other
communications under this Agreement must be in writing and will
be deemed to have been duly given when (a) delivered by hand
(with written confirmation of receipt), (b) sent by telecopier
(with written confirmation of transmission), provided that a copy
is mailed by registered mail, return receipt requested, or (c)
when received by the addressee, if sent by an internationally
recognized overnight delivery service (receipt requested), in
each case to the appropriate addresses and telecopier numbers set
forth below (or to such other addresses and telecopier numbers as
a party may designate by notice to the other parties):
if to Seller:
Victoria & Eagle Strategic Fund, Ltd.
P.O. Box 1984 G.T.
Elizabethan Square
Grand Cayman, Cayman Islands
British West Indies
with a copy (which shall not constitute notice) to:
Xxxxxxxxxx Xxxxxxxx
Xxx Xxxxxx Xx. 0
Xxxxxx, Xxxxxxxxxxx XX 0000
Telecopy: 011-41-919-10-18-19
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and with a copy (which shall not constitute notice) to:
Xxxxx, Xxxx & Xxxxxxx, P.C.
000 Xxxx Xxxxxx
Xxxxx 0000
Xxxx Xxxxx, Xxxxx 00000
Attn: Xxxxxx X. Xxxxxx
Telecopy: (000) 000-0000
if to Purchaser:
Solico International, Inc.
000 Xxxx
Xxx Xxxxxxx, Xxxxx 00000
Attn: X. Xxxxxxx Sparks
with a copy (which shall not constitute notice) to:
Xxxxxxx & Xxxxx L.L.P.
000 Xxxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxx, Xxxxx 00000-0000
Attn: Xxxxxxx Xxxxxxx
Telecopy: (000) 000-0000
10.5 Governing Law; Jurisdiction; Service of Process. This
Agreement shall be deemed to have been made in, and shall be
construed in accordance with the laws of the State of Texas,
U.S.A. and its validity, construction, interpretation and legal
effect shall be governed by the laws of the State of Texas,
U.S.A. applicable to contracts entered into and performed
entirely therein. The Parties hereby agree that any dispute which
may arise between or among them in connection with this Agreement
shall be adjudicated before a court located in San Antonio,
Texas, and they hereby submit to the exclusive personal
jurisdiction of the courts of the State of Texas located in San
Antonio, Texas and of the federal district courts in or for
disputes arising in San Antonio, Texas with respect to any action
or legal Proceeding commenced by any Party. Each of the Parties
irrevocably waives, to the fullest extent permitted by law, any
objection which it may now or hereafter have to the laying of the
venue of any such Proceeding brought in such a court and any
claim that any such Proceeding brought in such a court has been
brought in an inconvenient forum. Each of the Parties hereby
consents to the service of process in any such action or legal
Proceeding on any party anywhere in the world.
10.6 Further Assurance. The Parties agree (a) to furnish upon
request to each other such further information, (b) to execute
and deliver to each other such other documents, and (c) to do
such other acts and things, all as the other Party may reasonably
request for the purpose of carrying out the intent of this
Agreement and the documents referred to in this Agreement.
10.7 Waiver. Except to the extent otherwise specified in this
Agreement, the rights and remedies of the Parties hereto are
cumulative and not alternative. Neither the failure nor any delay
by any Party in exercising any right, power, or privilege under
this Agreement or the documents referred to in this Agreement
will operate as a waiver of such right, power, or privilege, and
no single or partial exercise of any such right, power, or
privilege will preclude any other or further exercise of such
right, power, or privilege or the exercise of any other right,
power, or privilege. To the maximum extent
-17-
permitted by applicable law, (a) no claim or right arising out of
this Agreement or the documents referred to in this Agreement can
be discharged by one Party, in whole or in part, by a waiver or
renunciation of the claim or right unless in writing signed by
the other Party; (b) no waiver that may be given by a Party will
be applicable except in the specific instance for which it is
given; and (c) no notice to or demand on one Party will be deemed
to be a waiver of any obligation of such Party or of the right of
the Party giving such notice or demand to take further action
without notice or demand as provided in this Agreement or the
documents referred to in this Agreement.
10.8 Entire Agreement and Modification. This Agreement and the
schedule and exhibits attached hereto, together with the other
Transaction Documents, supersedes all prior agreements between
the parties with respect to its subject matter and constitutes
(along with the other Transaction Documents) a complete and
exclusive statement of the terms of the agreement between the
Parties with respect to its subject matter. This Agreement may
not be amended except by a written agreement executed by the
Party to be charged with the amendment.
10.9 Schedules. The disclosures in the Seller Disclosure
Schedule and Purchaser Disclosure Schedule hereto, each of which
are incorporated into this Agreement by this reference and made a
part hereof, relate only to the representations and warranties in
the Section of the Agreement to which they expressly relate and
not to any other representation or warranty in this Agreement.
Seller and Purchaser may revise or supplement the Seller
Disclosure Schedule or Purchaser Disclosure Schedule,
respectively, or otherwise amend or modify its representations
and warranties hereunder, at any time at or prior to a Closing
Date to reflect information that came into existence after the
Effective Date and that would have been required to be disclosed
on such schedules or reflected in such representations or
warranties if such information was in existence as of the
Effective Date; it being understood that prior to such Closing,
each Party, as its sole remedy for the receipt of additional
materially adverse information on the Disclosure Schedule of the
other Party, shall be entitled to terminate this Agreement with
the consequences specified in Section 8.2 above; provided,
however, that such disclosure shall not cure any default or limit
any liability resulting from a Breach of any covenants contained
in this Agreement.
10.10 Assignments, Successors, and No Third-Party Rights.
Seller may not assign any of its rights under this Agreement
without the prior consent of the other Party. Purchaser may
assign its rights under this Agreement to any one or more
affiliates or related Persons of Purchaser. Subject to the
preceding sentences, this Agreement will apply to, be binding in
all respects upon, and inure to the benefit of the successors and
permitted assigns of the Parties. Nothing expressed or referred
to in this Agreement will be construed to give any Person other
than the Parties to this Agreement any legal or equitable right,
remedy, or claim under or with respect to this Agreement or any
provision of this Agreement. This Agreement and all of its
provisions and conditions are for the sole and exclusive benefit
of the Parties to this Agreement and their successors and
assigns.
10.11 Severability. If any provision of this Agreement is
held invalid or unenforceable by any court of competent
jurisdiction, the other provisions of this Agreement will remain
in full force and effect. Any provision of this Agreement held
invalid or unenforceable only in part or degree will remain in
full force and effect to the extent not held invalid or
unenforceable.
10.12 Section Headings; Construction. The headings of
Sections in this Agreement are provided for convenience only and
will not affect its construction or interpretation. All
references to "Section" or "Sections" refer to the corresponding
Section or Sections of this Agreement. All words used in this
Agreement will be construed to be of such gender or number as the
circumstances require. Unless otherwise expressly provided, the
word "including" does not limit the preceding words or terms.
-18-
10.13 Counterparts. This Agreement may be executed in one or
more counterparts, each of which will be deemed to be an original
copy of this Agreement and all of which, when taken together,
will be deemed to constitute one and the same agreement.
[Signature Page Follows]
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IN WITNESS WHEREOF, the parties have executed and delivered
this Agreement as of the date first written above.
SOLICO INTERNATIONAL, INC.,
a Texas corporation
By: X. XXXXXXX XXXXXX
----------------------------
Name: X. Xxxxxxx Sparks
--------------------------
Title: President
-------------------------
VICTORIA & EAGLE STRATEGIC FUND, LTD.,
a Cayman Islands corporation
By: /s/ XXXXX XXXXX
-----------------------------
Name: Xxxxx Xxxxx
---------------------------
Title: Director
--------------------------
Exhibit 99.2(b)
AMENDMENT NO. 1
to
STOCK PURCHASE AGREEMENT
This Amendment No. 1 to Stock Purchase Agreement (this
"Amendment") is entered into as of September 30, 2003, by and
between Solico International, Inc., a Texas corporation, and
Victoria & Eagle Strategic Fund, Ltd., a Cayman Islands
corporation. Purchaser and Seller are sometimes collectively
referred to herein as the "Parties" and individually as a
"Party."
RECITALS
WHEREAS, the Parties previously entered into that certain
Stock Purchase Agreement as of September 22, 2003 (the "Stock
Purchase Agreement"); and
WHEREAS, the Parties, in accordance with Section 10.8 of the
Stock Purchase Agreement, desire to amend the terms of the Stock
Purchase Agreement to their mutual benefit in accordance with the
terms of this Amendment;
NOW THEREFORE, the Parties, in consideration of the above
recitals, and other good and valuable consideration, the
sufficiency of which is hereby acknowledged, do hereby agree to
the following:
1. Amendment of Section 7.5. Subsection (a) of Section 7.5 of
the Agreement is deleted in its entirely and replaced with the
following language:
"(a) irrevocably waiving the Company's right to
redeem the Preferred Stock set forth in Section
H.3 of Article 4 of the Company's certificate of
incorporation until on or after October 31, 2004;"
2. Effect of Amendment. Except as expressly amended by the
terms hereof, the terms and provisions of the Stock Purchase
Agreement shall continue in full force and effect.
Counterparts. This Amendment may be executed by facsimile
signature in one or more counterparts, each of which will be
deemed to constitute an original copy of this Amendment and all
of which, when taken together, will be deemed to constitute one
and the same Amendment.
[Signature Page Follows]
IN WITNESS WHEREOF, the parties have executed and delivered
this Amendment as of the date first written above.
SOLICO INTERNATIONAL, INC.,
a Texas corporation
By: /s/ X. XXXXXXX XXXXXX
----------------------------
Name: X. Xxxxxxx Sparks
--------------------------
Title: President
-------------------------
VICTORIA & EAGLE STRATEGIC FUND,
LTD.
a Cayman Islands corporation
By: /s/ XXXXX XXXXX
----------------------------
Name: Xxxxx Xxxxx
--------------------------
Title: Director
-------------------------