-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, QBthE/XVE3CxmZbcTSOVS8lWnlGWprpEPz07gMM5oS+L2uhZzi193sOBOheyop+U IOxDGdVLwp36G4xWOJgx5g== 0000909143-03-000089.txt : 20031117 0000909143-03-000089.hdr.sgml : 20031117 20031117155153 ACCESSION NUMBER: 0000909143-03-000089 CONFORMED SUBMISSION TYPE: SC 13D/A PUBLIC DOCUMENT COUNT: 12 FILED AS OF DATE: 20031117 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: SOLICO INTERNATIONAL INC CENTRAL INDEX KEY: 0001265136 STATE OF INCORPORATION: TX FILING VALUES: FORM TYPE: SC 13D/A MAIL ADDRESS: STREET 1: 922 ISOM RD CITY: SAN ANTONIO STATE: TX ZIP: 78216 SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: AMERICAN BUILDING CONTROL INC CENTRAL INDEX KEY: 0000318259 STANDARD INDUSTRIAL CLASSIFICATION: PHOTOGRAPHIC EQUIPMENT & SUPPLIES [3861] IRS NUMBER: 752626358 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D/A SEC ACT: 1934 Act SEC FILE NUMBER: 005-32267 FILM NUMBER: 031008076 BUSINESS ADDRESS: STREET 1: 1301 WATERS RIDGE DRIVE CITY: LEWISVILLE STATE: TX ZIP: 75057 BUSINESS PHONE: 972-353-6500 MAIL ADDRESS: STREET 1: 1301 WATERS RIDGE DRIVE CITY: LEWISVILLE STATE: TX ZIP: 75057 FORMER COMPANY: FORMER CONFORMED NAME: ULTRAK INC DATE OF NAME CHANGE: 19920703 SC 13D/A 1 schedule13d-3.txt AMENDMENT NO. 3 TO SCHEDULE 13D BY SOLICO INTERNATIONAL, INC. UNITED STATES SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 SCHEDULE 13D/A Under the Securities Exchange Act of 1934 (Amendment No. 3*) American Building Control, Inc. - ---------------------------------------------------------------- (Name of Issuer) Common Stock --------------------------------------------------------------- (Title of Class of Securities) 903898401 - ---------------------------------------------------------------- (CUSIP Number) J. Collier Sparks 922 Isom San Antonio, Texas 78216 - ---------------------------------------------------------------- (Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications) November 5, 2003 --------------------------------------------------------------- (Date of Event which Requires Filing of this Statement) If the filing person has previously filed a statement on Schedule 13G to report the acquisition that is the subject of this Schedule 13D, and is filing this schedule because of 240.13d- 1(e), 240.13d-1(f) or 240.13d-1(g), check the following box [ ]. *The remainder of this cover page shall be filled out for a reporting person's initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter disclosures provided in a prior cover page. The information required on the remainder of this cover page shall not be deemed to be "filed" for the purpose of Section 18 of the Securities Exchange Act of 1934 ("Act") or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes). CUSIP NO. 903898401 Page 2 SCHEDULE 13D (1) NAME OF REPORTING PERSON. SS OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON Solico International, Inc. (2) CHECK THE APPROPRIATE BOX IF A (A) [ ] MEMBER OF A GROUP (SEE INSTRUCTIONS) (B) [ ] (3) SEC USE ONLY (4) SOURCE OF FUNDS See Item 3 (5) CHECK IF DISCLOSURE OF LEGAL [ ] PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e) (6) CITIZENSHIP OR PLACE OF ORGANIZATION Texas NUMBER OF SHARES (7) SOLE VOTING POWER 3,260,970 BENEFICIALLY (8) SHARED VOTING POWER OWNED BY EACH 0 REPORTING PERSON (9) SOLE DISPOSITIVE POWER 2,209,259 WITH: (10) SHARED DISPOSITIVE POWER 0 (11) AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 3,260,970 (12) CHECK IF THE AGGREGATE AMOUNT IN [ ] ROW (11) EXCLUDES CERTAIN SHARES (13) PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 22.7% (14) TYPE OF REPORTING PERSON CO ____________________ These amounts and percentages were calculated by using a total of 14,351,879 shares of the Issuer's Common Stock outstanding determined by adding the 14,148,388 shares of Common Stock outstanding as reflected in the Issuer's most recent Form 10-Q, plus 203,491 shares of Common Stock issuable upon conversion of 97,676 shares of the Issuer's Series A 12% Cumulative Convertible Preferred Stock beneficially owned by the Reporting Person. Assuming no conversion of the Convertible Preferred, these shares vote with the Common Stock on a 1 to 16.667 basis, which results in the Reporting Person holding a total of 4,685,445 votes (consisting of 2,005,768 shares of Common Stock that Solico holds or may acquire directly within 60 days, 1,627,966 shares representing the voting power of 97,676 shares of Convertible Preferred Stock, plus 1,051,711 shares of Common Stock beneficially owned by certain unrelated third parties who, in connection with their agreement to sell shares of Common and Preferred Stock to Solico, have agreed to grant Solico an irrevocable proxy to vote such shares) out of a total of 17,404,303 votes cast (consisting of 14,148,388 shares of Common Stock plus 3,255,915 shares representing the voting power of all 195,351 shares of Convertible Preferred Stock) or approximately 26.9% of the shares entitled to cast votes. Explanatory Note. This Amendment No. 3 to Statement on Schedule 13D (this "Amendment No. 3") amends and restates, in its entirety, the Statement on Schedule 13D originally filed by Solico International, Inc., a Texas corporation ("Solico"), and Danny W. Mills on or about October 2, 2003, as amended by Amendment No. 1 filed on or about October 10, 2003, and as further amended by Amendment No. 2 filed on or about October 27, 2003 (as amended, the "Original Filing," and collectively, with Amendment No. 3, the "Statement"). To the extent necessary, the Original Filing is hereby incorporated by reference. The transactions involving Mr. Mills and Solico have been consummated or terminated, and Mr. Mills has accepted the position of President and CEO of the Issuer, effective as of November 6, 2003. For these reasons, Mr. Mills is not joining Solico on this filing. Item 1. SECURITY AND ISSUER This Statement relates to the common stock, par value $0.01 per share (the "Common Stock"), of American Building Control, Inc., a Delaware corporation (the "Issuer"). The principal executive offices of the Issuer are located at 1301 Waters Ridge Drive, Lewisville, Texas 75057. Item 2. IDENTITY AND BACKGROUND (a) This Statement is filed by Solico (the "Reporting Person"). Pursuant to Instruction C to Schedule 13D, information is included herein with respect to the following persons as a result of their respective relationship with and control over Solico (collectively, the "Controlling Persons"): J. Collier Sparks ("Sparks"), J. Christopher Cuevas ("Cuevas"), and Timathy Rohrbach ("Rohrbach"). The Reporting Person and the Controlling Persons are sometimes hereinafter collectively referred to as the "Item 2 Persons." (b) REPORTING PERSON. ----------------- Solico's business address is 922 Isom, San Antonio, Texas 78216. CONTROLLING PERSONS. ------------------- Each Controlling Person's business address is 922 Isom, San Antonio, Texas 78216. (c) REPORTING PERSON. ----------------- SOLICO. Solico is a Texas corporation principally engaged in the design, creation, sale and support of advanced facility security and surveillance systems. Sparks and Cuevas are the sole members of Solico's Board of Directors. Sparks, Cuevas and Rohrbach are executive officers of Solico. CONTROLLING PERSON. ------------------ SPARKS. Sparks is a resident of the State of Texas. Sparks is presently employed as the President and CEO of Solico. Sparks' principal occupation is as a business executive. CUEVAS. Cuevas is a resident of the State of Texas. Cuevas is presently employed as the Chief Financial Officer of Solico. Cuevas' principal occupation is as a business executive. ROHRBACH. Rohrbach is a resident of the State of Texas. Rohrbach is presently employed as the Vice President and Chief Technology Officer of Solico. Rohrbach's principal occupation is as a business executive. (d) During the last five years, no Item 2 Person has been convicted in a criminal proceeding (excluding traffic violations or similar misdemeanors). (e) During the last five years, no Item 2 Person has been a party to a civil proceeding of a judicial or administrative body of competent jurisdiction as a result of which any of such Item 2 Persons were or are subject to a judgment, decree or final order enjoining future violations of, or prohibiting or mandating activities subject to, federal or state securities laws or finding any violation with respect to such laws. (f) Solico is incorporated in the State of Texas. Each of Sparks, Cuevas and Rohrbach are citizens of the United States. Item 3. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATIONS As more particularly described in Item 6 below, Solico has contracted with certain parties to acquire up to 4,147,341 shares of Common Stock and up to 195,351 shares of the Issuer's 12% Series A Cumulative Convertible Preferred Stock ("Preferred Stock") for an aggregate purchase price totaling $13,303,599.18 (the "Purchase Price"), such Purchase Price to be funded in a series of scheduled transactions or tranches (as more particularly described in Item 6 below). The shares of Preferred Stock which Solico has the right to acquire under the Stock Purchase Agreements (as more particularly described in Item 6 below) are convertible into an additional 406,981 shares of Common Stock. Solico is presently analyzing different methods by which to fund the Purchase Price including, but not limited to, financing alternatives, strategic relationships with third parties, working capital or any combination of two or more of such alternatives. Item 4. PURPOSE OF TRANSACTION SOLICO. Solico is acquiring its shares of Common Stock and Preferred Stock for the purpose of obtaining a significant equity position in the Issuer and to influence the management of the Issuer. Solico considers its acquisition of the shares of Common Stock and Preferred Stock (as defined below) at the Purchase Price to be an attractive investment. Solico's primary interest is to maximize the value of its investment and, as a result, the market value of the Issuer. Solico intends to continually review the Issuer's business affairs, financial position and future prospects, as well as conditions in the securities markets and general economic and industry-related conditions. Based on such evaluation and review and other factors, including, without limitation, the performance of the Issuer's current management in implementing the strategic directives of the Issuer's Board of Directors, Solico will consider various alternative courses of action with respect to its investment in the Issuer as it deems appropriate in light of circumstances arising from time to time. Such actions may, without limitation, include seeking representation on the Issuer's Board of Directors, seeking to influence, through its representation on the Issuer's Board of Directors (if such representation is sought and obtained), strategic acquisitions or dispositions of assets, implementation of various business strategies, seeking to acquire control of the Issuer, acquiring additional shares of the Issuer's capital stock, disposing of any shares of capital stock which Solico may acquire, or such other actions as Solico may deem appropriate. Solico is currently engaged in private negotiations with the intention of obtaining the right to purchase additional shares of Common Stock; however, no agreements have as yet been reached regarding the purchase of these shares. The Preferred Stock votes with the Common Stock on all matters submitted to a vote of the stockholders with super voting rights of 16.667 votes for each share of Preferred Stock. Accordingly, the 195,351 shares of Preferred Stock to be acquired by Solico represent (prior to conversion thereof) an aggregate of 3,255,915 votes. On an aggregate basis, the shares of Common Stock and shares of Preferred Stock (assuming no conversion thereof has occurred), which Solico has the right to acquire within sixty (60) days of the date of this Statement and/or the right to vote, represents approximately 26.9% of the votes currently entitled to be cast on any matter submitted to the stockholders for a vote. Item 5. INTEREST IN SECURITIES OF THE ISSUER (a) As of the date of this Statement and assuming the conversion of the Preferred Stock, Solico is deemed to be the beneficial owner of an aggregate of 3,260,970 shares of the Issuer's Common Stock, which is comprised of 2,005,768 shares of Common Stock which Solico holds or may acquire directly within 60 days, 203,491 shares issuable upon conversion of Preferred Stock which Solico may acquire within 60 days, plus an additional 1,051,711 shares of Common Stock beneficially owned by certain unrelated third parties who, in accordance with the terms of the respective Stock Purchase Agreements (as described in Item 6 below), have agreed to grant Solico an irrevocable proxy to vote such shares). Such shares presently represent approximately 22.7% of the issued and outstanding shares of the Issuer's Common Stock. Assuming no conversion of the Convertible Preferred, these shares vote with the Common Stock on a 1 to 16.667 basis, which results in Solico holding a total of 4,685,445 votes (consisting of 2,005,768 shares of Common Stock that Solico holds or may acquire directly within 60 days, 1,627,966 shares representing the voting power of 97,676 shares of Convertible Preferred Stock, plus 1,051,711 shares of Common Stock beneficially owned by certain unrelated third parties who, in accordance with the terms of the respective Stock Purchase Agreements, have agreed to grant Solico an irrevocable proxy to vote such shares) out of a total of 17,404,303 votes cast (consisting of 14,148,388 shares of Common Stock plus 3,255,915 shares representing the voting power of all 195,351 shares of Convertible Preferred Stock) or approximately 26.9% of the shares entitled to cast vote Collectively, the aggregate number of shares of Common Stock and Preferred Stock which Solico has the right to acquire under the Stock Purchase Agreements (as described in Item 6 below) would represent approximately 31.3% of the outstanding shares of Common Stock (assuming that each of the transactions contemplated by the Stock Purchase Agreements are consummated and assuming the conversion of all shares of Preferred Stock which Solico has the right to acquire, at a conversion rate of 2.08333 shares of Common Stock for each share of Preferred Stock), and based upon 14,555,369 shares of Common Stock issued and outstanding (using the 14,148,388 shares of Common Stock reported as outstanding in the Issuer's Quarterly Report on Form 10-Q filed with the Securities and Exchange Commission on August 8, 2003 (the "Form 10-Q") plus the 406,981 shares of Common Stock issuable upon conversion of the Preferred Stock). Further, on an aggregate basis, the total number of shares of Common Stock and shares of Preferred Stock (assuming no conversion thereof has occurred) which Solico has the right to acquire under the Stock Purchase Agreements will represent approximately 42.5% of the votes currently presently entitled to be cast on any matter submitted to the stockholders for a vote (assuming each of the transactions contemplated by the Stock Purchase Agreements are consummated). (b) Upon closing of the transactions contemplated by the Stock Purchase Agreements described in Item 6 below, Solico shall have the sole power to vote, or direct the vote of, and to dispose, or direct the disposition of, the shares of Common Stock and Preferred Stock which it has the right to acquire. As of the date of this statement, Solico has closed the purchase of 200,000 shares, representing the "First Broady Tranche" as described in Item 6, below. By virtue of their relationship with Solico, each of the Control Persons may be deemed, under Rule 13d-3 of the Securities Exchange Act of 1934 (the "1934 Act"), to beneficially own the shares of Common Stock and Preferred Stock which Solico has the right to acquire. No Controlling Persons presently hold any shares of Common Stock, and each disclaims beneficial ownership of the shares of Common Stock and Preferred Stock which Solico has the right to acquire. (c) Other than as described in this Statement, no Item 2 Person has acquired any securities of the Issuer during the prior 60 days. (d) Until the respective closing of each of the tranches described in Item 6 below, the current holders of the stock retain the right to receive any dividends declared by the Issuer on the Common Stock until the purchase of such respective shares of Common Stock by Solico. In addition, until the closing of each of the V&E tranches described in Item 6 below, V&E has the right to receive any dividends paid with respect to the Preferred Stock still owned by V&E. (e) N/A Item 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH RESPECT TO SECURITIES OF THE ISSUER Solico ------ (a) On September 22, 2003, Solico and Victoria and Eagle Strategic Fund, Ltd. ("V&E") entered into a Stock Purchase Agreement, as amended by Amendment Number 1, dated September 30, 2003, and Amendment Number 2, dated October 9, 2003 (as amended, the "V&E Agreement"), pursuant to which, subject to the terms and conditions set forth therein, (i) Solico agreed to purchase from V&E, and V&E agreed to sell to Solico, 544,932 shares of Common Stock and 48,838 shares of Preferred Stock, on October 31, 2003, for an aggregate purchase price of $1,899,806.52 (the "First V&E Tranche"), (ii) Solico agreed to purchase from V&E, and V&E agreed to sell to Solico, 544,931 shares of Common Stock and 48,838 shares of Preferred Stock on December 15, 2003, for an aggregate purchase price of $1,899,804.41 (the "Second V&E Tranche"), and (iii) Solico has the right to purchase from V&E, and V&E has the separate right to sell to Solico, pursuant to a put/call option, an aggregate of 1,089,862 shares of Common Stock and 97,675 shares of Preferred Stock on June 30, 2004, for an aggregate purchase price of $4,497,120.50 (the "V&E Put/Call Option"). Pursuant to the terms of the V&E Agreement, effective upon the closing of the First V&E Tranche, V&E will grant to Solico an irrevocable proxy to vote all of the shares of Common Stock and Preferred Stock of V&E to be purchased by Solico in the Second V&E Tranche. Solico's obligation to consummate the closings of the First V&E Tranche, the Second V&E Tranche and the V&E Put/Call Option are subject to the fulfillment or waiver of customary terms and conditions including the condition that George K. Broady ("Broady") and certain persons affiliated with Broady shall have entered into definitive, binding agreements with Solico (such agreements being described below), pursuant to which Solico shall have the right to purchase a minimum of 1,412,932 shares of Common Stock owned by such persons. In addition, V&E has agreed not to directly or indirectly either (1) submit, solicit, initiate, encourage, vote for or consent to any proposal or offer from any person or enter into any agreement or accept any offer relating to any reorganization, liquidation or recapitalization of the Issuer; merger or consolidation involving the Issuer; purchase or sale of any assets or capital stock of the Issuer (other than a sale in the ordinary course of business; or similar transaction or business combination involving the Issuer or the assets of the Issuer or (2) furnish any information with respect to or participate in or facilitate in any other manner any effort or attempt to do or seek to do any of the following for the period beginning on September 22, 2003 until the earlier to occur of (x) the closing or expiration of the V&E Put/Call Option or (y) the termination of the V&E Agreement. As of the date of this Report, Solico and V&E are in negotiations regarding the closing of the First V&E Tranche and the Second V&E Tranche, with the expectation that both tranches will be closed simultaneously prior to November 24, 2003 (or as soon thereafter as is practicable), although they may be closed on slightly different payment terms or schedules than as contemplated by the V&E Agreement. (b) On September 22, 2003, Solico and Broady entered into a Stock Purchase Agreement, as amended by that certain Amendment Number 1, dated October 9, 2003, that certain Amendment No. 2, dated as of October 31,2003, and that certain Amendment Number 3, dated as of November 5, 2003 (as amended, the "Broady Agreement"), pursuant to which, subject to the terms and conditions set forth therein, (i) Solico agreed to purchase from Broady, and Broady agreed to sell to Solico, 200,000 shares of Common Stock on or before November 15, 2003, for an aggregate purchase price of $400,000 (the "First Broady Tranche"), (ii) Solico agreed to purchase from Broady, and Broady agreed to sell to Solico, 200,000 shares of Common Stock on December 15, 2003, for an aggregate purchase price of $450,000 (the "Second Broady Tranche"), and (iii) Solico has the right to purchase from Broady, and Broady has the separate right to sell to Solico, pursuant to a put/call option, an aggregate of 589,718 shares of Common Stock on June 30, 2004, for an aggregate purchase price of $1,846,724.50 (the "Broady Put/Call" Option"). On November 5, 2003, Solico closed the First Broady Tranche, and in connection therewith executed a Note Secured by Stock Pledge Agreement in the original principal amount of $400,000, with a maturity date of January 5, 2004. Solico's obligations under this note are secured by the 200,000 shares transferred to Solico by Broady, pursuant to that certain Stock Pledge Agreement between Solico and Broady dated November 5, 2003. Pursuant to the terms of the Broady Agreement, effective upon the closing of the First Broady Tranche, Broady granted to Solico an irrevocable proxy to vote all of the shares of Common Stock of Broady that are the subject of the Second Broady Tranche and the Broady Put/Call Option, until July 15, 2004; provided, however, in the event that the closing of the Second Broady Tranche is not consummated on or before December 15, 2003 (and such date has not been extended by the mutual agreement of Broady and Solico), then the Broady Put/Call Option and the proxy granted by Broady to Solico under the Broady Agreement shall each terminate and be of no further force and effect. Solico's obligation to consummate the closing of the Second Broady Tranche is subject to the fulfillment or waiver of customary terms and conditions, including, without limitation, that certain persons affiliated with Broady shall have entered into definitive, binding agreements with Solico (such agreements being described below), pursuant to which Solico shall have the right to purchase a minimum of 637,932 shares of Common Stock owned by such persons. Solico has also agreed to deposit into escrow 100,000 shares of Common Stock as security for Solico's obligation to consummate the closing of the Second Broady Tranche. Subject to the terms and conditions of the related escrow agreement, such 100,000 shares of Common Stock will be transferred by Solico to Broady in the event that the closing of the Second Broady Tranche has not been consummated on or before December 15, 2003. In addition, Broady has agreed not to directly or indirectly either (1) submit, solicit, initiate, encourage, vote for or consent to any proposal or offer from any person or enter into any agreement or accept any offer relating to any reorganization, liquidation or recapitalization of the Issuer; merger or consolidation involving the Issuer; purchase or sale of any assets or capital stock of the Issuer (other than a sale in the ordinary course of business; or similar transaction or business combination involving the Issuer or the assets of the Issuer or (2) furnish any information with respect to or participate in or facilitate in any other manner any effort or attempt to do or seek to do any of the following for the period beginning on September 22, 2003 until the earlier to occur of (x) the closing or expiration of the Broady Put/Call Option or(y) December 15, 2003, if the Second Broady Tranche has not been consummated as of such date without agreement as to a later closing date for the Second Broady Tranche. (c) On September 22, 2003, Solico entered into a Stock Purchase Agreement, as amended by that certain Amendment Number 1, dated October 9, 2003, and that certain Amendment No. 2 dated as of October 31, 2003 (as amended, the "GKB Group Agreement"), with Vance Campbell, Tom Campbell, Cantrell Partners and Lynn Kinney (the "GKB Group Sellers"), pursuant to which, subject to the terms and conditions set forth therein, (i) Solico agreed to purchase from the GKB Group Sellers, and the GKB Group Sellers agreed to sell to Solico, an aggregate of 170,194 shares of Common Stock on or before November 15, 2003, for an aggregate purchase price of $340,388 (the "First GKB Group Tranche"), (ii) Solico agreed to purchase from the GKB Group Sellers, and the GKB Group Sellers agreed to sell to Solico, an aggregate of 170,194 shares of Common Stock on December 15, 2003, for an aggregate purchase price of $382,936.50 (the "Second GKB Group Tranche"), and (iii) Solico has an option to purchase from the GKB Group Sellers, an additional 170,194 shares of Common Stock for a purchase price of $2.75 per share at any time on or before June 30, 2004 (the "GKB Group Option"). Pursuant to the GKB Group Agreement, upon the closing of the First GKB Group Tranche, the GKB Group Sellers will grant to Solico irrevocable proxies to vote all of the shares of Common Stock of the GKB Group Sellers that are the subject of the Second GKB Group Tranche and the GKB Group Option, until July 15, 2004; provided, however, in the event that the closing of the Second GKB Group Tranche is not consummated on or before December 15, 2003 (and such date has not been extended by the mutual agreement of the GKB Group Sellers and Solico), then the GKB Group Option and the proxies granted by the GKB Group Sellers to Solico under the GKB Group Agreement shall each terminate and be of no further force and effect. Solico's obligation to consummate the closings of the First GKB Group Tranche and the Second GKB Group Tranche are subject to the fulfillment or waiver of customary terms and conditions including that Solico and Broady shall have entered into the Broady Agreement, and certain other stockholders of the Issuer shall have entered into definitive, binding agreements with Solico (such agreements being described in this Item 6), pursuant to which Solico shall have the right to purchase a minimum of 127,350 shares of Common Stock owned by such persons. In addition, the GKB Group Sellers have agreed not to directly or indirectly (1) submit, solicit, initiate, encourage, vote for or consent to any proposal or offer from any person or enter into any agreement or accept any offer relating to any reorganization, liquidation or recapitalization of the Issuer; merger or consolidation involving the Issuer; purchase or sale of any assets or capital stock of the Issuer (other than a sale in the ordinary course of business; or similar transaction or business combination involving the Issuer or the assets of the Issuer or (2) furnish any information with respect to or participate in or facilitate in any other manner any effort or attempt to do or seek to do any of the following for the period beginning on September 22, 2003 until the earlier to occur of (x) the closing or expiration of the GKB Group Option or(y) December 15, 2003, if the Second GKB Group Tranche has not been consummated as of such date without agreement as to a later closing date for the Second GKB Group Tranche. As of the date hereof, Solico has not closed the First GKB Group Tranche. (d) On September 22, 2003, Solico entered into a Stock Purchase Agreement (the "Original Agreement") with John Broady, Ruth Ward, Mary Bill, Judith Mader, Vincent Suttmeier and Robert Suttmeier (the "Other Sellers") with the belief that Strategic Resources Ltd. would join the Other Sellers. However, effective October 9, 2003, the Other Sellers entered into that certain Amendment Number 1 to Stock Purchase Agreement (together with the Original Agreement, the "Other Agreement") to, among other things, clarify that Strategic Resources, Ltd. would not be joining the Other Sellers as a party thereto. The Original Agreement was further amended by that Certain Amendment Number 2 to Stock Purchase Agreement, dated October 21, 2003. The Other Agreement, as amended, provides that, subject to the terms and conditions set forth therein, (i) Solico agreed to purchase from the Other Sellers, and the Other Sellers agreed to sell to Solico, an aggregate of 42,450 shares of Common Stock on or before November 15, 2003, for an aggregate purchase price of $84,900 (the "First Other Tranche"), (ii) Solico agreed to purchase from the Other Sellers, and the Other Sellers agreed to sell to Solico, an aggregate of 42,450 shares of Common Stock on December 15, 2003, for an aggregate purchase price of $95,512.50 (the "Second Other Tranche"), and (iii) Solico has an option to purchase from the Other Sellers, an additional 42,450 shares of Common Stock for a purchase price of $2.75 per share at any time on or before June 30, 2004 (the "Other Option"). Pursuant to the Other Agreement, upon the closing of the First Other Tranche, the Other Sellers will grant Solico irrevocable proxies to vote all of the shares of Common Stock of the Other Sellers that are the subject of the Second Other Tranche and the Other Option, until July 15, 2004; provided, however, in the event that the closing of the Second Other Tranche is not consummated on or before December 15, 2003 (and such date has not been extended by the mutual agreement of the Other Sellers and Solico), then the Other Option and the proxies granted by the Other Sellers to Solico under the Other Agreement shall each terminate and be of no further force and effect. Solico's obligation to consummate the closings of the First Other Tranche and the Second Other Tranche are subject to the fulfillment or waiver of customary terms and conditions including, without limitation, that Solico and Broady shall have entered into the Broady Agreement, and Solico and the GKB Group shall have entered into the GKB Group Agreement. In addition, the Other Sellers have agreed not to directly or indirectly (1) submit, solicit, initiate, encourage, vote for or consent to any proposal or offer from any person or enter into any agreement or accept any offer relating to any reorganization, liquidation or recapitalization of the Issuer; merger or consolidation involving the Issuer; purchase or sale of any assets or capital stock of the Issuer (other than a sale in the ordinary course of business; or similar transaction or business combination involving the Issuer or the assets of the Issuer or (2) furnish any information with respect to or participate in or facilitate in any other manner any effort or attempt to do or seek to do any of the following for the period beginning on September 22, 2003 until the earlier to occur of (x) the closing or expiration of the Other Option or(y) December 15, 2003, if the Second Other Tranche has not been consummated as of such date without agreement as to a later closing date for the Second Other Tranche. As of the date hereof, Solico has not closed the First Other Tranche. (e) On November 10, 2003, Solico entered into a Stock Purchase Agreement (the "RF&EA Agreement"), with the R.F. & E.A. Family Limited Partnership II ("RF&EA") pursuant to which, subject to the terms and conditions set forth therein, (i) Solico agreed to purchase from RF&EA, and RF&EA agreed to sell to Solico, an aggregate of 25,767 shares of Common Stock on or before December 15, 2003, for an aggregate purchase price of $51,534 (the "First RF&EA Tranche"), (ii) Solico agreed to purchase from RF&EA, and RF&EA agreed to sell to Solico, an aggregate of 25,767 shares of Common Stock on March 30, 2003, for an aggregate purchase price of $57,975.75 (the "Second RF&EA Tranche"), and (iii) Solico has an option to purchase from RF&EA, an additional 51,532 shares of Common Stock for a purchase price of $2.75 per share at any time on or before June 30, 2004 (the "RF&EA Option"). Pursuant to the RF&EA Agreement, RF&EA has granted to Solico an irrevocable proxy to vote all of the shares of Common Stock of RF&EA that are the subject of the RF&EA Agreement, until July 15, 2004; provided, however, in the event that the closing of the Second RF&EA Tranche is not consummated on or before March 30, 2003 (and such date has not been extended by the mutual agreement of RF&EA and Solico), then the proxies granted by RF&EA to Solico under the RF&EA Agreement shall each terminate and be of no further force and effect. Solico's obligation to consummate the closings of the First RF&EA Tranche and the Second RF&EA Tranche are subject to the fulfillment or waiver of customary terms and conditions. (f) On November 10, 2003, Solico entered into a Stock Purchase Agreement (the "Neal Agreement"), with Chas. A. Neal & Company ("Neal") pursuant to which, subject to the terms and conditions set forth therein, (i) Solico agreed to purchase from Neal, and Neal agreed to sell to Solico, an aggregate of 42,350 shares of Common Stock on or before December 15, 2003, for an aggregate purchase price of $84,700 (the "First Neal Tranche"), (ii) Solico agreed to purchase from Neal and Neal agreed to sell to Solico, an aggregate of 42,350 shares of Common Stock on March 30, 2003, for an aggregate purchase price of $95,287.50 (the "Second Neal Tranche"), and (iii) Solico has an option to purchase from Neal, an additional 84,700 shares of Common Stock for a purchase price of $2.75 per share at any time on or before June 30, 2004 (the "Neal Option"). Pursuant to the Neal Agreement, Neal has granted to Solico an irrevocable proxy to vote all of the shares of Common Stock of Neal that are the subject of the Neal Agreement, until July 15, 2004; provided, however, in the event that the closing of the Second Neal Tranche is not consummated on or before March 30, 2003 (and such date has not been extended by the mutual agreement of Neal and Solico), then the proxies granted by Neal to Solico under the Neal Agreement shall each terminate and be of no further force and effect. Solico's obligation to consummate the closings of the First Neal Tranche and the Second Neal Tranche are subject to the fulfillment or waiver of customary terms and conditions. (g) On November 10, 2003, Solico entered into a Stock Purchase Agreement (the "Campbell Henderson Agreement"), with Campbell, Henderson and Company ("Campbell Henderson") pursuant to which, subject to the terms and conditions set forth therein, (i) Solico agreed to purchase from Campbell Henderson and Campbell Henderson agreed to sell to Solico, an aggregate of 15,000 shares of Common Stock on or before December 15, 2003, for an aggregate purchase price of $30,000 (the "First Campbell Henderson Tranche"), (ii) Solico agreed to purchase from Campbell Henderson, and Campbell Henderson agreed to sell to Solico, an aggregate of 15,000 shares of Common Stock on March 30, 2003, for an aggregate purchase price of $33,750 (the "Second Campbell Henderson Tranche"), and (iii) Solico has an option to purchase from Campbell Henderson, an additional 15,000 shares of Common Stock for a purchase price of $2.75 per share at any time on or before June 30, 2004 (the "Campbell Henderson"). Pursuant to the Campbell Henderson Agreement, Campbell Henderson has granted to Solico an irrevocable proxy to vote all of the shares of Common Stock of Campbell Henderson that are the subject of the Campbell Henderson Agreement, until July 15, 2004; provided, however, in the event that the closing of the Second Campbell Henderson Tranche is not consummated on or before March 30, 2003 (and such date has not been extended by the mutual agreement of Campbell Henderson and Solico), then the proxies granted by Campbell Henderson to Solico under the Campbell Henderson Agreement shall each terminate and be of no further force and effect. Solico's obligation to consummate the closings of the First Campbell Henderson Tranche and the Second Campbell Henderson Tranche are subject to the fulfillment or waiver of customary terms and conditions. (h) On November 10, 2003, Solico entered into a Stock Purchase Agreement (the "Campbell Agreement"), with Susan Campbell ("Campbell") pursuant to which, subject to the terms and conditions set forth therein, (i) Solico agreed to purchase from Campbell, and Campbell agreed to sell to Solico, an aggregate of 7,500 shares of Common Stock on or before December 15, 2003, for an aggregate purchase price of $15,000 (the "First Campbell Tranche"), (ii) Solico agreed to purchase from Campbell, and Campbell agreed to sell to Solico, an aggregate of 7,500 shares of Common Stock on March 30, 2003, for an aggregate purchase price of $16,875 the "Second Campbell Tranche"), and (iii) Solico has an option to purchase from Campbell, an additional 7,500 shares of Common Stock for a purchase price of $2.75 per share at any time on or before June 30, 2004 (the "Campbell Option"). Pursuant to the Campbell Agreement, Campbell has granted to Solico an irrevocable proxy to vote all of the shares of Common Stock of Campbell that are the subject of the Campbell Agreement, until July 15, 2004; provided, however, in the event that the closing of the Second Campbell Tranche is not consummated on or before March 30, 2003 (and such date has not been extended by the mutual agreement of Campbell and Solico), then the proxies granted by Campbell to Solico under the Campbell Agreement shall each terminate and be of no further force and effect. Solico's obligation to consummate the closings of the First Campbell Tranche and the Second Campbell Tranche are subject to the fulfillment or waiver of customary terms and conditions. Item 7. MATERIAL TO BE FILED AS EXHIBITS. EXHIBIT NO. DESCRIPTION ----------- ---------------------------------------------- 99.1 Stock Purchase Agreement, dated as of September 22, 2003, between Solico International, Inc. and Victoria & Eagle Strategic Fund. Ltd.(previously filed) 99.2 Stock Purchase Agreement, dated as of September 22, 2003, between Solico International, Inc. and George K. Broady (previously filed) 99.3 Stock Purchase Agreement, dated as of September 22, 2003, among Solico International, Inc., Vance Campbell, Tom Campbell, Cantrell Partners and Lynn Kinney (previously filed) 99.4 Stock Purchase Agreement, dated as of September 22, 2003, among Solico International, Inc., John Broady, Ruth Ward, Mary Bill, Judith Mader, Vincent Suttmeier and Robert Suttmeier (previously filed) 99.5 Amendment No. 1 to Stock Purchase Agreement, dated as of September 30, 2003, between Solico International, Inc. and Victoria & Eagle Strategic Fund. Ltd. (previously filed) 99.6 Amendment No. 2 to Stock Purchase Agreement, dated as of October 9, 2003, between Solico International, Inc. and Victoria & Eagle Strategic Fund. Ltd. (previously filed) 99.7 Amendment No. 1 to Stock Purchase Agreement , dated as of October 9, 2003, among Solico International, Inc., Vance Campbell, Tom Campbell, Cantrell Partners and Lynn Kinney (previously filed) 99.8 Amendment No. 1 to Stock Purchase Agreement, dated as of October 9, 2003, by and between Solico International, Inc. and George K. Broady. (previously filed) 99.9 Amendment No. 1 to Stock Purchase Agreement, dated as of October 9, 2003, by and among Solico International, Inc., John Broady, Ruth Ward, Mary Bill, Judith Mader, Vincent Suttmeier and Robert Suttmeier. (previously filed). 99.10 Note Secured By Stock Pledge Agreement, dated November 5, 2003, by Solico International, Inc. in favor of George K. Broady (filed herewith). 99.11 Stock Pledge Agreement, dated November 5, 2003, by and between George K. Broady and Solico International, Inc. (filed herewith). 99.12 Irrevocable Proxy, dated November 5, 2003, executed by George K. Broady in favor of Solico International, Inc. (filed herewith). 99.13 Amendment No. 2 to Stock Purchase Agreement, dated as of October 31, 2003, by and between Solico International, Inc. and George K. Broady (filed herewith). 99.14 Amendment No. 3 to Stock Purchase Agreement, dated as of November 5, 2003, by and between Solico International Inc. and George K. Broady (filed herewith). 99.15 Stock Purchase Agreement dated November 10, 2003, by and between Solico International, Inc. and R.F. & E.A. Family Limited Partnership II (filed herewith). 99.16 Stock Purchase Agreement dated November 10, 2003, by and between Solico International, Inc. and Campbell, Henderson and Company (filed herewith). 99.17 Stock Purchase Agreement dated November 10, 2003, by and between Solico International, Inc. and Susan Campbell (filed herewith). 99.18 Stock Purchase Agreement dated November 10, 2003, by and between Solico International, Inc. and Chas. A. Neal & Company (filed herewith). 99.19 Amendment No. 2 to Stock Purchase Agreement, dated as of October 31, 2003, by and among Solico International, Inc., Vance Campbell, Tom Campbell, Cantrell Partners and Lynn Kinney(filed herewith). 99.20 Amendment No. 2 to Stock Purchase Agreement, dated as of October 31, 2003, by and among Solico International, Inc., John Broady, Ruth Ward, Mary Bill, Judith Mader, Vincent Suttmeier and Robert Suttmeier (filed herewith). SIGNATURE After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this Amendment No. 3 to Statement on Schedule 13D is true, complete and correct. Dated: November 17, 2003 SOLICO INTERNATIONAL, INC. By: /s/ J. COLLIER SPARKS ------------------------------ Name: J. Collier Sparks ---------------------------- Title: President --------------------------- EXHIBIT INDEX EXHIBIT NO. DESCRIPTION ----------- ---------------------------------------------- 99.1 Stock Purchase Agreement, dated as of September 22, 2003, between Solico International, Inc. and Victoria & Eagle Strategic Fund. Ltd.(previously filed) 99.2 Stock Purchase Agreement, dated as of September 22, 2003, between Solico International, Inc. and George K. Broady (previously filed) 99.3 Stock Purchase Agreement, dated as of September 22, 2003, among Solico International, Inc., Vance Campbell, Tom Campbell, Cantrell Partners and Lynn Kinney (previously filed) 99.4 Stock Purchase Agreement, dated as of September 22, 2003, among Solico International, Inc., John Broady, Ruth Ward, Mary Bill, Judith Mader, Vincent Suttmeier and Robert Suttmeier (previously filed) 99.5 Amendment No. 1 to Stock Purchase Agreement, dated as of September 30, 2003, between Solico International, Inc. and Victoria & Eagle Strategic Fund. Ltd. (previously filed) 99.6 Amendment No. 2 to Stock Purchase Agreement, dated as of October 9, 2003, between Solico International, Inc. and Victoria & Eagle Strategic Fund. Ltd. (previously filed) 99.7 Amendment No. 1 to Stock Purchase Agreement , dated as of October 9, 2003, among Solico International, Inc., Vance Campbell, Tom Campbell, Cantrell Partners and Lynn Kinney (previously filed) 99.8 Amendment No. 1 to Stock Purchase Agreement, dated as of October 9, 2003, by and between Solico International, Inc. and George K. Broady. (previously filed) 99.9 Amendment No. 1 to Stock Purchase Agreement, dated as of October 9, 2003, by and among Solico International, Inc., John Broady, Ruth Ward, Mary Bill, Judith Mader, Vincent Suttmeier and Robert Suttmeier. (previously filed). 99.10 Note Secured By Stock Pledge Agreement, dated November 5, 2003, by Solico International, Inc. in favor of George K. Broady (filed herewith). 99.11 Stock Pledge Agreement, dated November 5, 2003, by and between George K. Broady and Solico International, Inc. (filed herewith). 99.12 Irrevocable Proxy, dated November 5, 2003, executed by George K. Broady in favor of Solico International, Inc. (filed herewith). 99.13 Amendment No. 2 to Stock Purchase Agreement, dated as of October 31, 2003, by and between Solico International, Inc. and George K. Broady (filed herewith). 99.14 Amendment No. 3 to Stock Purchase Agreement, dated as of November 5, 2003, by and between Solico International Inc. and George K. Broady (filed herewith). 99.15 Stock Purchase Agreement dated November 10, 2003, by and between Solico International, Inc. and R.F. & E.A. Family Limited Partnership II (filed herewith). 99.16 Stock Purchase Agreement dated November 10, 2003, by and between Solico International, Inc. and Campbell, Henderson and Company (filed herewith). 99.17 Stock Purchase Agreement dated November 10, 2003, by and between Solico International, Inc. and Susan Campbell (filed herewith). 99.18 Stock Purchase Agreement dated November 10, 2003, by and between Solico International, Inc. and Chas. A. Neal & Company (filed herewith). 99.19 Amendment No. 2 to Stock Purchase Agreement, dated as of October 31, 2003, by and among Solico International, Inc., Vance Campbell, Tom Campbell, Cantrell Partners and Lynn Kinney (filed herewith). 99.20 Amendment No. 2 to Stock Purchase Agreement, dated as of October 31, 2003, by and among Solico International, Inc., John Broady, Ruth Ward, Mary Bill, Judith Mader, Vincent Suttmeier and Robert Suttmeier (filed herewith). EX-99.10 3 ex99-10.txt NOTE SECURED BY STOCK PLEDGE AGREEMENT NOTE SECURED BY STOCK PLEDGE AGREEMENT $400,000 San Antonio, Texas November 5, 2003 FOR VALUE RECEIVED, Solico International, Inc., a Texas corporation ("Maker") promises to pay to the order of George K. Broady ("Payee"), the principal sum of $400,000, together with interest from the date of this Note Secured by Stock Pledge Agreement (this "Note") on the unpaid principal balance from time to time outstanding hereunder. Such interest shall accrue from the date of advancement on the unpaid principal balance at the rate of six percent (6%) per annum, compounded annually until maturity. This Note is being executed and delivered in connection with and is subject to the terms of (i) the Stock Pledge Agreement, dated as of even date herewith, by and between Maker and Payee (the "Stock Pledge Agreement"), and (ii) the Stock Purchase Agreement, dated as of even date herewith, by and between Maker and Payee (as amended, the "Stock Purchase Agreement"), copies of which are attached hereto as Exhibit A and Exhibit B, respectively, and each of which is incorporated herein by reference. Capitalized terms used but not defined herein shall have the respective meanings assigned to them in the Stock Pledge Agreement. This Note is being delivered by Maker to Payee as payment of the First Purchase Price for the purchase of 200,000 shares of common stock of American Building Control, Inc., a Delaware corporation ("ABC") owned by Payee (the "Shares"). All payments hereunder shall be made in lawful tender of the United States. Such payment shall be credited first to any accrued and unpaid interest, and the remainder shall be applied to principal. Prepayment of principal, together with all accrued and unpaid interest, may be made at any time without penalty. The entire unpaid principal balance of this Note, together with all accrued and unpaid interest, shall mature and immediately become due and payable in one lump sum on January 5, 2004; provided, however, that the entire principal sum of this Note, together with all accrued and unpaid interest, shall mature and immediately become due and payable upon the occurrence of an Event of Default (as defined in the Stock Pledge Agreement). This Note is full recourse to Maker. Payment of this Note is secured by a pledge of the Shares pursuant to the Stock Pledge Agreement. Maker, however, shall remain liable for payment of this Note, and assets of Maker, in addition to the Collateral under the Stock Pledge Agreement, may be applied to the satisfaction of Maker's obligations hereunder. This Note shall be construed in accordance with the laws of the State of Texas without giving effect to any otherwise applicable conflict-of-law rules. This Note, the Stock Pledge Agreement and the Stock Purchase Agreement constitute the full and entire understanding and agreement between the parties with regard to the subject matter hereof and thereof and supersede any and all prior agreements relating to the subject matter hereof and thereof. Any term of this Note may be amended and the observance of any term of this Note may be waived (either generally or in a particular instance and either retroactively or prospectively), only with the written consent of Maker and Payee. If one or more provisions of this Note are held to be unenforceable under applicable law, such provision shall be excluded from this Note and the balance of this Note shall be interpreted as if such provision were so excluded and shall be enforceable in accordance with its terms. In the event any interest paid on this Note is deemed to be in excess of the then legal maximum rate, then that portion of the interest payment representing an amount in excess of the then legal maximum rate shall be deemed a payment of principal and applied against the principal of this Note. Maker hereby waives presentment, demand, protest, notice of dishonor, diligence and all other notices, any release or discharge arising from any extension of time, discharge of a prior party, release of any or all of any security given from time to time for this Note, or other cause of release or discharge other than actual payment in full hereof. It is expressly agreed that, if this Note is referred to an attorney or if suit is brought to collect this Note or any part hereof or to enforce or protect any rights conferred upon Payee by this Note or any other document evidencing or securing this Note, then Maker promises and agrees to pay all costs, including without limitation reasonable attorneys' fees, incurred by Payee. This Note may not be assigned or transferred by Maker without the prior written consent of Payee. Payee may assign or transfer all or any part of this Note to any affiliate of Payee or to Solico or any affiliate of Solico, without prior notice to or consent of Maker. Except as otherwise provided herein, the terms and conditions of this Note shall inure to the benefit of and be binding upon the respective successors and permitted assigns of the parties. Nothing in this Note, express or implied, is intended to confer upon any party other than Maker and Payee or their respective successors and permitted assigns any rights, remedies, obligations or liabilities under or by reason of this Note, except as expressly provided in this Note. [Signature page follows] -2- IN WITNESS WHEREOF, the undersigned Maker has executed this Note to be effective as of the date first set forth above. MAKER: SOLICO INTERNATIONAL, INC. By: /s/ J. COLLIER SPARKS ------------------------- Name: J. Collier Sparks ----------------------- Title: President ---------------------- EX-99.11 4 ex99-11.txt STOCK PLEDGE AGREEMENT STOCK PLEDGE AGREEMENT This Stock Pledge Agreement (this "Agreement") is made as of the 5th day of November, 2003 by and between George K. Broady ("Pledgee") and Solico International, Inc., a Texas corporation ("Pledgor"). RECITALS Pledgor owns 200,000 shares (the "Shares") of the issued and outstanding common stock, par value $0.01 per share (the "ABC Common Stock"), of American Building Control, Inc., a Delaware corporation (the "Company"). Pledgor purchased the Shares from Pledgee by delivery of that certain Note Secured By Stock Pledge Agreement dated of even date herewith in the original principal amount of $400,000 (the "Note"). Pledgor desires to pledge the Shares to Pledgee as security for its payment of the Note, and to grant Pledgee a security interest in the other Collateral described herein. AGREEMENT The parties, in consideration of the mutual covenants, agreements and understandings herein contained, and intending to be legally bound, hereby agree as follows: 1. GRANT OF SECURITY INTEREST. Pledgor hereby grants to Pledgee a security interest in, and assigns, all of Pledgor's right, title and interest in and to the following securities and other property (collectively, the "Collateral"): (a) the Shares delivered to and deposited with Pledgee, together with a duly executed Assignment Separate from Certificate, the form of which is attached as Annex A, all in accordance with the provisions of Section 3 below, as collateral for the Note; (b) any and all new, additional or different securities or other property subsequently distributed in respect of the Shares which are to be delivered to and deposited with Pledgee pursuant to the requirements of Section 3 of this Agreement; (c) any and all other property and money which is delivered to or comes into the possession of Pledgee pursuant to the terms of this Agreement; and (d) the proceeds of any sale, exchange or disposition of the property and securities described in subparagraphs (a), (b) or (c) above. 2. REPRESENTATIONS AND WARRANTIES. Pledgor hereby represents and warrants to Pledgee as follows: (a) Authority; No Conflict. (i) Upon the execution and delivery by Pledgor of this Agreement, the Note and the Assignment Separate from Certificate (collectively, the "Loan Documents"), each such Loan Document will constitute the legal, valid and binding obligation of Pledgor, enforceable against Pledgor in accordance with its terms, except (A) as limited by applicable bankruptcy, insolvency, reorganization, -1- moratorium and other laws of general application affecting enforcement of creditors' right generally and (B) as limited by laws relating to the availability of specific performance, injunctive relief or other equitable remedies. (ii) Pledgor 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 Loan Documents or the consummation or performance of any of the transactions contemplated hereby and thereby (the "Contemplated Transactions"), and neither the execution and delivery of the Loan Documents nor the consummation or performance of any of the Contemplated Transactions will, directly or indirectly (with or without notice or lapse of time): (A) contravene,conflict with or result in a violation of any federal, state, local or foreign law, ordinance, regulation, statute, treaty or order to which it or any of the assets owned or used by it is subject ("Legal Requirement"); (B) contravene, conflict with or result in a violation of any of the terms or requirements of, or give any federal, state, local or foreign governmental or quasi- governmental authority of any nature or body exercising any administrative, executive, judicial, legislative, police, regulatory or taxing authority or power of any nature ("Governmental Body"), the right to revoke, withdraw, suspend, cancel, terminate or modify, any approval, consent, license, permit, waiver or other authorization issued, given or otherwise made available by or under the authority of such Governmental Body or pursuant to any Legal Requirement ("Governmental Authorization") that is held by Seller or that otherwise relates to his business or any of the assets owned or used by him; (C) 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 agreement, contract, obligation, promise or other legally biding undertaking of Pledgor ("Contract"), or result in the imposition or creation of any Encumbrance (as defined below) upon or with respect to any of the assets owned or used by him. (b) Legal Proceedings; Orders. (i) There is no pending 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 ("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 Pledgor, 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. (ii) There is no award, decision, judgment, order, ruling, subpoena or verdict entered, issued, made or rendered by any Governmental Body or arbitrator ("Order") to which Pledgor, or any of the assets owned or used by Pledgor, is subject that may have the effect of preventing, delaying, making illegal, or otherwise interfering with, any of the Contemplated Transactions. 3. ESCROW. (a) Deposit. Upon execution and delivery of this Agreement and the Note by Pledgor, the certificates for the Shares shall be deposited in escrow with Pledgee to be held in accordance -2- with the provisions of this Section 3. Each deposited certificate shall be accompanied by a duly executed Assignment Separate from Certificate in the form attached as Annex A. The deposited certificates, together with any other assets or securities from time to time deposited with Pledgee pursuant to the requirements of this Agreement, shall remain in escrow until such time or times as the certificates (or other assets and securities) are to be released, transferred to Pledgee pursuant to Section 11, or surrendered for cancellation in accordance with Section 8. (b) Recapitalization/Reorganization. Any new, additional or different securities, or other property which are issued or distributed in respect of or in exchange for the Shares shall be immediately delivered to Pledgee to be held in escrow under this Section 3, but only to the extent the Shares are at the time subject to the escrow requirements hereunder. (c) Duty to Deliver. Any new, additional or different securities or other property which may now or hereafter become distributable with respect to the Collateral by reason of (i) any stock split, stock dividend, recapitalization, combination of shares, exchange of shares or other change affecting the ABC Common Stock as a class without the Company's receipt of consideration or (ii) any merger, consolidation or other reorganization affecting the capital structure of the Company shall, upon receipt by Pledgor be promptly delivered to and deposited with Pledgee as part of the Collateral hereunder. Any such securities shall be accompanied by one or more duly executed Assignments Separate from Certificate as provided under this Section 3. (d) Stockholder Rights. So long as Pledgee has not foreclosed upon the Shares pursuant to the terms hereof, Pledgor alone shall exercise all voting rights and other shareholder rights with respect to the Shares. 4. PAYMENT OF TAXES AND OTHER CHARGES. Pledgor shall pay, prior to the delinquency date, all taxes, liens, assessments and other Encumbrances against the Collateral. In the event of Pledgor's failure to do so, Pledgee in its discretion may pay any or all of such taxes and other Encumbrances without contesting the validity or legality thereof. The payments so made shall become part of the indebtedness secured hereunder and until paid shall bear interest at the minimum per annum rate as set forth in the Note. 5. RIGHTS AND POWERS OF PLEDGEE. Pledgee may, without obligation to do so, exercise at any time and from time to time one or more of the following rights and powers with respect to any or all of the Collateral: (a) subject to the applicable limitations of Section 8, accept in its discretion other property of Pledgor in exchange for all or part of the Collateral and release Collateral to Pledgor to the extent necessary to effect such exchange, and in such event the other property received in the exchange shall become part of the Collateral hereunder; (b) perform such acts as are reasonably necessary to preserve and protect the Collateral and the rights, powers and remedies granted with respect to such Collateral by this Agreement; and (c) transfer record ownership of the Collateral to Pledgee or its nominee and receive, endorse and give receipt for, or collect by legal proceedings or otherwise, dividends or other distributions made or paid with respect to the Collateral, provided and only if there exists at the time an outstanding Event of Default under Section 9 of this Agreement. Any cash sums that Pledgee may so receive shall be -3- held in Escrow and become part of the Collateral hereunder, or paid over to Pledgor, in Pledgee's sole discretion. (d) Any action by Pledgee pursuant to the provisions of this Section 5 may be taken without notice to Pledgor. Expenses reasonably incurred in connection with such action shall be payable by Pledgor and form part of the indebtedness secured hereunder as provided in Section 13. 6. CARE OF COLLATERAL. (a) Pledgee shall exercise reasonable care in the custody and preservation of the Collateral. However, Pledgee shall have no obligation to (a) subject to Pledgor's rights as a stockholder of the Company, initiate any action with respect to, or otherwise inform Pledgor of, any conversion, call, exchange right, preemptive right, subscription right, purchase offer or other right or privilege relating to or affecting the Collateral, (b) preserve the rights of Pledgor against adverse claims or protect the Collateral against the possibility of a decline in market value or (c) take any action with respect to the Collateral requested by Pledgor unless the request is made in writing and Pledgee determines that the requested action will not unreasonably jeopardize the value of the Collateral as security for the Note and other indebtedness secured hereunder. (b) Subject to the limitations of Section 8, Pledgee may at any time release and deliver all or part of the Collateral to Pledgor, and the receipt thereof by Pledgor shall constitute a complete and full acquittance for the Collateral so released and delivered. Pledgee shall accordingly be discharged from any future liability or responsibility for the Collateral, and the released Collateral shall no longer be subject to the provisions of this Agreement. 7. RELEASE OF COLLATERAL. Provided all indebtedness secured hereunder shall at the time have been paid in full and there does not otherwise exist any Event of Default under Section 9, the Shares, together with any additional Collateral which may hereafter be pledged and deposited hereunder, shall be released from pledge and returned to Pledgor in accordance with the following provisions: (a) Upon payment or repayment of principal under the Note, together with payment of all accrued interest to date, one or more of the Shares held as Collateral hereunder shall (subject to the applicable limitations of Section 8(c) below) be released to Pledgor immediately after such prepayment. The number of the Shares to be so released shall be equal to the number obtained by multiplying (i) the total number of Shares held under this Agreement at the time of the payment or prepayment, by (ii) a fraction, the numerator of which shall be the amount of the principal paid or prepaid and the denominator of which shall be the unpaid principal balance of the Note immediately prior to such payment or prepayment. In no event, however, shall any fractional shares be released. (b) Any additional Collateral which may hereafter be pledged and deposited with Pledgee (pursuant to the requirements of Section 3(c)) with respect to the Shares shall be released at the same time the particular Shares to which the additional Collateral relates are to be released in accordance with the applicable provisions of Section 8(a). (c) Under no circumstances, however, shall any Shares or any other Collateral be released if previously applied to the payment of any indebtedness secured hereunder, including, without limitation, pursuant to Section 10 below. In addition, in no event shall any Shares or other Collateral be released pursuant to the provisions of Sections 8(a) or 8(b) if, and to the extent, the fair market value of the ABC Common Stock and all other Collateral which would otherwise remain in pledge hereunder after such release were effected would be less than the unpaid principal under the Note; provided, however that -4- the Collateral may be released to be sold, subject to applicable securities laws, and any proceeds shall be applied first to the payment of the Note, second to any other indebtedness secured hereunder, and third any surplus proceeds shall be paid over to Pledgor. 8. EVENTS OF DEFAULT. The occurrence of one or more of the following events shall constitute an event of default under this Agreement (each an "Event of Default"): (a) the failure of Pledgor to pay when due at maturity of the Note all principal and accrued and unpaid interest thereon; (b) the occurrence of the insolvency of the Pledgor, the commission of any act of bankruptcy by the Pledgor, the execution by the Pledgor of a general assignment for the benefit of creditors, the filing by or against the Pledgor of any petition in bankruptcy or any petition for relief under the provisions of the federal bankruptcy act or any other state or federal law for the relief of debtors and the continuation of such petition without dismissal for a period of 30 days or more, the appointment of a receiver or trustee to take possession of any property or assets of the Pledgor; (c) the failure of Pledgor to perform any material obligation, other than those specified in subparagraph (d) below, imposed upon Pledgor by reason of this Agreement or any of the Loan Documents; or (d) the material breach of any material representation or warranty of Pledgor contained in this Agreement or the other Loan Documents. Upon the occurrence of any such Event of Default, Pledgee may, at its election, immediately declare the Note and all other indebtedness secured hereunder to become immediately due and payable and may exercise any or all of the rights and remedies granted to a secured party under the provisions of the Texas Business and Commerce Code (as now or hereafter in effect), including (without limitation) the power to dispose of the Collateral by public or private sale or to accept the Collateral (valued at fair market value) in full payment of the Note and all other indebtedness secured hereunder. In the event of a private sale, Pledgee shall use its best efforts to obtain the fair market value of the Collateral. Any proceeds realized from the disposition of the Collateral pursuant to the foregoing power of sale shall be applied first to the payment of expenses incurred by Pledgee in connection with the disposition, then to the payment of the Note and finally to any other indebtedness secured hereunder. Any surplus proceeds shall be paid over to Pledgor. However, in the event such proceeds prove insufficient to satisfy all obligations of Pledgor under the Note, the Pledgor shall remain personally liable for the resulting deficiency. 9. INDEMNIFICATION. (a) Survival; Right to Indemnification not Affected by Knowledge. All representations, warranties, covenants, and obligations in this Agreement and the other Loan Documents will survive until the payment in full of the Note. The right to indemnification, payment of Damages (as defined below) or other remedy based on such representations, warranties, covenants, and obligations will not be affected by any investigation conducted with respect to, or any knowledge acquired (or capable of being acquired) at any time, whether before or after the execution and delivery of this Agreement or payment in full of the Note, with respect to the accuracy or inaccuracy of or compliance with, any such representation, warranty, covenant, or obligation. The waiver of any condition based on the accuracy of -5- any representation or warranty, or on the performance of or compliance with any covenant or obligation, will not affect the right to indemnification, payment of Damages, or other remedy based on such representations, warranties, covenants and obligations. (b) Indemnification. Subject to the limitations set forth in Section 11(c) below, Pledgor (the "Indemnifying Party") will indemnify and hold harmless Pledgee and his representatives and affiliates (collectively, the "Indemnified Persons") for, and will pay to the Indemnified Persons the amount of, any loss, liability, claim, damage (including incidental and consequential damages), 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 Loan Document. The remedies provided in this Section 11(b) will not be exclusive of or limit any other remedies that may be available to the parties. (c) Defense of Claims. An Indemnified Person seeking indemnification under this Section 11 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 Section 11, 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 Section 11, 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. -6- (d) 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 11(c), 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 11(d) 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. 10. OTHER REMEDIES. The rights, powers and remedies granted to Pledgee pursuant to the provisions of this Agreement shall be in addition to all rights, powers and remedies granted to Pledgee under any statute or rule of law. Any forbearance, failure or delay by Pledgee in exercising any right, power or remedy under this Agreement shall not be deemed to be a waiver of such right, power or remedy. Any single or partial exercise thereof, and every right, power and remedy of Pledgee under this Agreement shall continue in full force and effect unless such right, power or remedy is specifically waived by an instrument executed by Pledgee. 11. COSTS AND EXPENSES. All reasonable costs and expenses (including attorneys fees) incurred by Pledgee in the exercise or enforcement of any right, power or remedy granted it under this Agreement shall become part of the indebtedness secured hereunder and shall constitute a personal liability of Pledgor payable immediately upon demand and bearing interest until paid at the minimum per annum rate, compounded semi-annually, required to avoid the imputation of interest income to Pledgee and compensation income to Pledgor under the federal tax laws. 12. APPLICABLE LAW. This Agreement shall be governed by and construed in accordance with the laws of the State of Texas without resort to that State's conflict-of-laws rules. 13. SUCCESSORS. This Agreement shall be binding upon Pledgee and his successors and assigns and upon Pledgor and the executors, heirs and legatees of Pledgor's estate and Pledgor's successors and assigns. Pledgor may not assign his rights or obligations under this Agreement without Pledgee's prior written consent. 14. SEVERABILITY. If any provision of this Agreement is held to be invalid under applicable law, then such provision shall be ineffective only to the extent of such invalidity, and neither the remainder of such provision nor any other provisions of this Agreement shall be affected thereby. 15. COUNTERPARTS. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. 16. NOTICES. All notices and other communications provided for hereunder shall be in writing (including telecopier or telex communication) and mailed, telecopied, telexed or delivered (i) if to the Pledgor, to the following address: 922 Isom, San Antonio, Texas 78216, or at such other address as shall be designated by Pledgor by notice to Pledgee; and (ii) if to Pledgee, to the following address: Canyon Drive #100, Coppell, Texas 75019, Telecopy 972-745-3682, or at such other address as shall be designated by Pledgee by notice to Pledgor. Each such notice or communication shall be effective (a) if -7- mailed, when deposited in the mail certified, return receipt requested, (b) if delivered by hand, upon delivery with written receipt, and (c) if telecopied, when receipt is confirmed by telephone. 17. AMENDMENTS; NO WAIVERS. Any term of this Agreement may be amended and the observance of any term of this Agreement may be waived (either generally or in a particular instance and either retroactively or prospectively), only with the written consent of Pledgee and Pledgor. The failure of Pledgee in any instance to exercise any right hereunder shall not constitute a waiver of any other rights that may subsequently arise under the provisions of this Agreement, the Note or any other agreement between Pledgee and Pledgor. No waiver of any breach or condition of this Agreement shall be deemed to be a waiver of any other or subsequent breach or condition, whether of like or different nature. Any amendment or waiver effected in accordance with this Section 19 shall be binding upon Pledgor and Pledgee. 18. ENTIRE AGREEMENT. This Agreement and the Note constitute the full and entire understanding and agreement between the parties with regard to the subjects hereof and thereof and supersedes any and all prior agreements relating to the subject matter hereof. [Remainder of page intentionally left blank] -8- IN WITNESS WHEREOF, this Agreement has been executed by Pledgor and Pledgee effective as of the date first set forth above. PLEDGOR: SOLICO INTERNATIONAL, INC. By: /s/ J. COLLIER SPARKS ----------------------------- Name: J. Collier Sparks --------------------------- Title: President -------------------------- PLEDGEE: /s/ GEORGE K. BROADY -------------------------------- George K. Broady -9- ANNEX A ------- ASSIGNMENT SEPARATE FROM CERTIFICATE FOR VALUE RECEIVED, Solico International, Inc. hereby assigns and transfers unto ______________________________, ____________ shares of the Common Stock of American Building Control, Inc., a Delaware corporation (the "Company"), standing in its name on the books of the Company represented by Certificate No. _____ herewith, and does hereby constitute and appoint ____________________, with full power of substitution and resubstitution in the premises, to transfer said stock on the books of the Corporation. Dated: ___________________. SOLICO INTERNATIONAL, INC. By:_________________________ Name:_______________________ Title:______________________ Address: _____________________________ _____________________________ Instruction: Please do not fill in any blanks other than the signature line. Please sign exactly as you would like your name to appear on the issued stock certificate. EX-99.12 5 ex99-12.txt IRREVOCABLE PROXY IRREVOCABLE PROXY The undersigned hereby grants to Solico International, Inc., a Texas corporation ("Solico"), an irrevocable special power of attorney to act as the undersigned's attorney-in-fact to vote on behalf of the undersigned, and to execute any resolution or consent evidencing the undersigned's vote, approval or consent of any action submitted to the vote, approval or consent, and to execute on behalf of the undersigned and deliver any documentation deemed necessary by Purchaser in connection with any matter or action to be taken in respect of 989,718 shares (the "Proxy Shares") of common stock of American Building Control, Inc., a Delaware corporation (the "Company") owned by the undersigned, including, without limitation, taking action with respect to any matter submitted to the vote of the holders of common stock of the Company. The undersigned hereby agrees to execute all resolutions, consents, agreements and other documents deemed necessary by Solico to effect and/or evidence the foregoing, and the undersigned agrees not to raise any objection to any action so taken by Solico in respect of the Proxy Shares. The undersigned hereby waives any appraisal rights or rights to dissent under applicable law arising due to the undersigned's ownership of any Proxy Shares. This Irrevocable Proxy is delivered by the undersigned in connection with that certain Stock Purchase Agreement dated September 22, 2003 by and between Purchaser and the undersigned, as amended (the "Stock Purchase Agreement"). Notwithstanding the foregoing, in the event that the Second Closing (as defined in the Stock Purchase Agreement) is not consummated on or before December 15, 2003, and the date of such Second Closing has not been extended by the mutual agreement of Solico and the undersigned, then this irrevocable proxy shall terminate and be of no further force or effect. Executed this 5th day of November 2003. /s/ GEORGE K. BROADY ---------------------------- George K. Broady EX-99.13 6 ex99-13.txt AMENDMENT NO. 2 TO STOCK PURCHASE AGREEMENT (BROADY) AMENDMENT NO. 2 to STOCK PURCHASE AGREEMENT This Amendment No. 2 to Stock Purchase Agreement (this "Amendment") is entered into as of October 31, 2003, by and between Solico International, Inc., a Texas corporation ("Purchaser"), and George K. Broady ("Seller"). 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, as amended by that certain Amendment No. 1 to Stock Purchase Agreement, dated as of October 9, 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 2.1. Subsection (a) of Section 2.1 of the Stock Purchase Agreement is deleted in its entirety and replaced with the following language: "(a) First Closing. The closing (the "First Closing") of the purchase and sale of 275,000 of the Purchased Shares (the "First Closing Shares"), for an aggregate purchase price of $400,000 (the "First Purchase Price"), will take place at 11:00 a.m. Central, on or before November 15, 2003, at the offices of Andrews & Kurth L.L.P., 111 Congress Avenue, Suite 1700, Austin, Texas 78701, or at such other time and place as the Parties may agree." 2. AMENDMENT OF SECTION 8.1. Subsection (e) of Section 8.1 of the Stock Purchase Agreement is deleted in its entirety and replaced with the following language: "(e) by either Purchaser or Seller if the First Closing has not occurred on or before November 30, 2003, or such later date as the parties may agree upon; or" 3. 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. -1- 4. 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] -2- 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/ J. COLLIER SPARKS ------------------------------- Name: J. Collier Sparks ----------------------------- Title: President ---------------------------- /s/ GEORGE K. BRAODY ---------------------------------- George K. Broady EX-99.14 7 ex99-14.txt AMENDMENT NO. 3 TO STOCK PURCHASE AGREEEMENT (BROADY) AMENDMENT NO. 3 to STOCK PURCHASE AGREEMENT This Amendment No. 3 to Stock Purchase Agreement (this "Amendment") is entered into as of November 5, 2003, by and between Solico International, Inc., a Texas corporation ("Purchaser"), and George K. Broady ("Seller"). 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, as amended by that certain Amendment No. 1 to Stock Purchase Agreement dated as of October 9, 2003, and that certain Amendment No. 2 to Stock Purchase Agreement dated as of October 31, 2003 (as amended, 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 2.1. Section 2.1 of the Stock Purchase Agreement is deleted in its entirety and replaced with the following language: "(a) First Closing. The closing (the "First Closing") of the purchase and sale of 200,000 of the Purchased Shares (the "First Closing Shares"), for an aggregate purchase price of $400,000 (the "First Purchase Price"), will take place at 11:00 a.m. Central, on or before November 5, 2003, at the offices of Andrews & Kurth L.L.P., 111 Congress Avenue, Suite 1700, Austin, Texas 78701, or at such other time and place as the Parties may agree. The First Purchase Price shall be paid by Purchaser through delivery to Seller of a promissory note in the original principal amount of $400,000, such promissory note to be secured by a pledge of the First Closing Shares, all in form reasonably satisfactory to Seller. (b) Second Closing. The closing (the "Second Closing") of the purchase and sale of 200,000 of the Purchased Shares (the "Second Closing Shares"), for an aggregate purchase price of $450,000 (the "Second Purchase Price"), will take place at 11:00 a.m. Central, on or before December 15, 2003, at the offices of Andrews & Kurth L.L.P., 111 Congress Avenue, Suite 1700, Austin, Texas 78701, or at such other time and place as the Parties may agree." -1- 2. AMENDMENT OF SECTION 2.3. Subsection (a) of Section 2.3 of the Stock Purchase Agreement is deleted in its entirety and replaced with the following language: "(a) "Put Option. Seller shall have the right (the "Put Option"), but not the obligation, to sell all of the remaining 589,718 Common Shares owned by Seller (the "Remaining Common Shares") 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 $1,846,724 for the Remaining Common Shares (the "Option Price")." 3. AMENDMENT OF SECTION 2.4. Subsection (b)(i) of Section 2.4 of the Stock Purchase Agreement is deleted in its entirety and replaced with the following language: "(i) deliver to Seller the portion of the Purchase Price for the Shares to be purchased at such Closing, or the Option Purchase Price in the case of the Option Closing, by wire transfer of immediately available funds to an account designated by Seller or, in the case of the First Closing, by delivery of a promissory note in form and substance reasonably satisfactory to Seller." 4. 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. 5. 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] -2- 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/ J. COLLIER SPARKS ------------------------------ Name: J. Collier Sparks ---------------------------- Title: President --------------------------- /s/ GEORGE K. BROADY --------------------------------- George K. Broady -3- EX-99.15 8 ex99-15.txt STOCK PURCHASE AGREEMENT (R.F. AND E.A. FAMILY LIMITED PARTNERSHIP II) STOCK PURCHASE AGREEMENT This Stock Purchase Agreement ("Agreement") is made as of November 10, 2003 (the "Effective Date"), by and among SOLICO INTERNATIONAL, INC., a Texas corporation (such corporation and/or its assignees, "Purchaser"), and R.F. & E.A. FAMILY LIMITED PARTNERSHIP II ("Seller"). Purchaser and Seller are sometimes collectively referred to herein as the "Parties" and individually as a "Party." RECITALS WHEREAS, Seller owns 103,066 shares (the "Shares") of the issued and outstanding shares of common stock, par value $.01 per share (the "Common Stock") of American Building Control, Inc., a Delaware corporation (the "Company"). WHEREAS, Purchaser desires to acquire, and Seller desires to sell, all right, title and interest of Seller in and to all 103,066 of the Shares on the terms and conditions set forth herein. AGREEMENT NOW, THEREFORE, the parties, in consideration of the mutual covenants, agreements and understandings herein contained, and intending to be legally bound, hereby agree as follows: ARTICLE I DEFINITIONS ----------- For purposes of this Agreement, the following terms have the meanings specified or referred to in this Article I: "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. "CLOSING" has the meaning set forth in Section 2.3. "CLOSING DATE" means the date and time as of which the First Closing, Second Closing or Purchase Option Closing actually takes place. "CODE" means the Internal Revenue Code of 1986, as amended. "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: -1- (a) the delivery of the Purchase Price in exchange for the Shares, and Purchaser's ownership and control of the Shares; (b) the execution, delivery and performance of the other Transaction Documents; (c) the satisfaction of all conditions set forth in Articles VI and VII; and (d) 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. "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(a). "FIRST CLOSING SHARES" has the meaning set forth in Section 2.1(a). "FIRST PURCHASE PRICE" has the meaning set forth in Section 2.1(a). "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. -2- "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, condition (financial or otherwise), operating results, employee, customer or supplier relations, business prospects, cash flow or working capital of the Company. "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. "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. "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 OPTION" has the meaning set forth in Section 2.2(a). "PURCHASE OPTION CLOSING" has the meaning set forth in Section 2.2(c). "PURCHASE OPTION EXPIRATION DATE" has the meaning set forth in Section 2.2(a). "PURCHASE OPTION PURCHASE PRICE" has the meaning set forth in Section 2.2(a). "PURCHASE PRICE" has the meaning set forth in Section 2.1. "PURCHASED SHARES" has the meaning set forth in Section 2.1. "PURCHASER DISCLOSURE SCHEDULE" has the meaning set forth in the preamble to Article IV. "SEC" means Securities and Exchange Commission. "SECOND CLOSING" has the meaning set forth in Section 2.1(b). "SECOND CLOSING SHARES" has the meaning set forth in Section 2.1(b). "SECOND PURCHASE PRICE" has the meaning set forth in Section 2.1(b). -3- "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 COMPLIANCE CERTIFICATE" has the meaning set forth in Section 2.4(a)(iii). "SELLER DISCLOSURE SCHEDULE" has the meaning set forth in the preamble to Article III. "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 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 -------------- 2.1 TRANSACTIONS. 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, all 103,066 of the Shares (the "Purchased Shares") for an aggregate purchase price of $251,222.75 (the "Purchase Price"), as follows: (a) First Closing. The closing (the "First Closing") of the purchase and sale of 25,767 of the Purchased Shares (the "First Closing Shares"), for a purchase price of $2.00 per share (the "First Purchase Price"), will take place at 11:00 a.m. Central Standard Time, on or before December 15, 2003, at the offices of Andrews Kurth LLP, 111 Congress Avenue, Suite 1700, Austin, Texas 78701, or at such other time and place as the Parties may agree. (b) Second Closing. The closing (the "Second Closing") of the purchase of 25,767 Purchased Shares (the "Second Closing Shares"), for a purchase price of $2.25 per share (the "Second Purchase Price"), will take place at 11:00 a.m. Central Standard Time, on March 30, 2004 at the offices of Andrews Kurth LLP, 111 Congress Avenue, Suite 1700, Austin, Texas 78701, or at such other time and place as the Parties may agree. 2.2 PURCHASE OPTION. (a) Option. Purchaser shall have the right, but not the obligation, to purchase 31,532 of the remaining Shares (the "Purchase Option") owned by Seller after the Second Closing (the "Option Shares"), at any time after the Second Closing and on or before June 30, 2004 (the "Purchase Option Expiration Date"), for a purchase price of $2.75 per share (the "Purchase Option Purchase Price"). (b) Exercise. Purchaser may exercise the Purchase Option by delivery of written notice to Seller of its election to exercise the Purchase Option on or before the Purchase Option Expiration Date. -4- (c) Purchase Option Closing. The closing of the purchase and sale of the Option Shares pursuant to the exercise of the Purchase Option by Purchaser (the "Purchase Option Closing") will take place at 11:00 a.m. Central Standard Time no later than ten (10) business days following the date of delivery to Seller of Purchaser's notice of exercise pursuant to Section 2.2(b) above, at the offices of Andrews Kurth LLP, 111 Congress Avenue, Suite 1700, Austin, Texas 78701, or at such other time and place as the Parties may agree. 2.3 CLOSING DELIVERIES. At the First Closing, Second Closing, and Purchase Option Closing, if any (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; (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) deliver to Seller the portion of the Purchase Price for the Shares to be purchased at such Closing, or the Purchase Option Price in the case of the Purchase Option Closing, by wire transfer of immediately available funds to an account designated by Seller; and (ii) 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. The Parties agree that as of the Effective Date, Purchaser alone shall exercise all voting rights with respect to all of the Purchased Shares and Option Shares owned by Seller (the "Voting Shares"). Accordingly, Seller hereby grants to Purchaser, effective as of the Effective Date, 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 to be taken in respect of the Voting Shares, including, without limitation, taking action with respect to any matter submitted to the vote of the holders of Common 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 Voting Shares. Seller hereby waives any appraisal rights or rights to dissent under applicable Legal Requirements arising due to Seller's ownership of any Voting Shares. Notwithstanding the foregoing, in the event that the Second Closing is not consummated on or before March 30, 2004, and the date of such Second Closing has not been extended by the mutual agreement of the Parties, then the proxy set forth in this Section 2.4 shall terminate and be of no further force or effect. -5- ARTICLE III REPRESENTATIONS AND WARRANTIES OF SELLERS. ------------------------------------------ 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 AUTHORITY. Seller has full power and authority to execute and deliver this Agreement and to perform his obligations hereunder. 3.2 ENFORCEABILITY; 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 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 any Legal Requirement or any Order to which Seller or any of the assets owned or used by Seller 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 (i) on the Effective Date, the record and beneficial owner and holder of all of the Shares (including the First Closing Shares, Second Closing Shares and Option Shares), (ii) on the First Closing Date the record and beneficial owner and holder of the First Closing Shares, Second Closing Shares and Option Shares, (iii) on the Second Closing Date, the owner and holder of the Second Closing Shares and the Option Shares, and (iv) on the Purchase Option Closing Date the record and beneficial owner and holder 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 and the Loan Documents. 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. -6- 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. (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. Except as otherwise disclosed in publicly-available filings made by the Company or Seller with the SEC, 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 as otherwise disclosed in publicly- available filings made by the Company or Seller with the SEC, 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. Except as otherwise disclosed in publicly- available filings made by the Company or Seller with the SEC, 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. In no event shall the aggregated liability of Seller under this Article III exceed the aggregate amounts received by Seller at the First Closing, the Second Closing and, if applicable, the Purchase Options Closing. 3.7 DISCLOSURE. No representation or warranty of Seller in this Agreement and no statement in the Seller 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 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. There is no fact known to Seller that has specific application to either Seller or the Company (other than general economic or industry conditions) and that could have a Material Adverse Effect. -7- ARTICLE IV REPRESENTATIONS AND WARRANTIES OF PURCHASER ------------------------------------------- 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 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 --------- 5.1 BEST EFFORTS. Seller 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 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. Seller will, and 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. 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. -8- 5.4 EXCLUSIVITY. 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. Seller agrees that 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 any of 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. 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 and the Second 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. -9- (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. 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 Shares and to take the other actions required to be taken by Purchaser at the First Closing and the Second 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 or be reasonably expected to occur any Material Adverse Effect. 7.3 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, (b) increased any officer's or employee's compensation, incentive arrangements or other benefits out of the Ordinary Course of Business, (c) redeemed, purchased or otherwise acquired, directly or indirectly out of the Ordinary Course of Business, 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 out of the Ordinary Course of Business, (d) amended its certificate of incorporation or bylaws, 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. 7.4 PROCEEDINGS. All corporate and other 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 such Closing and all documents incident thereto shall be satisfactory in form and substance to Purchaser and its counsel. 7.5 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. -10- 7.6 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. 7.7 CAPITAL STRUCTURE. Between the Effective Date and such Closing Date, without the prior written consent of Purchaser, 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 Closing under existing option plans on an arm's-length basis in the Ordinary Course of Business. 7.8 CLOSING DOCUMENTS. At such Closing, Seller shall have delivered to Purchaser all of the following documents: (a) a Seller Compliance Certificate; and (b) 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 the Purchase Option Closing Date (if any) or Purchase Option Expiration Date (if not exercised), be terminated: (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 the First Closing Date or Second 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 the First Closing Date or Second 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; and (e) by either Purchaser or Seller if the First 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 rights and obligations set forth 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 any 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. -11- 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 until twelve (12) months following the Purchase Option Expiration Date; provided, the representations, warranties and covenants made under Section 3.3 (Title to Shares) shall survive indefinitely. The right to indemnification, payment of Damages or other remedy based on such representations, warranties, covenants, and obligations will not be affected by any investigation conducted with respect to, or any Knowledge acquired (or capable of being acquired) at any time, whether before or after the execution and delivery of this Agreement or before or after any Closing Date, with respect to the accuracy or inaccuracy of or compliance with, any such representation, warranty, covenant, or obligation. The waiver of any condition based on the accuracy of any representation or warranty, or on the performance of or compliance with any covenant or obligation, will not affect the right to indemnification, payment of Damages, or other remedy based on such representations, warranties, covenants and obligations. 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 (including incidental and consequential damages), 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. 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. -12- 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 ten percent (10%) 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 aggregate amounts received by Seller at the First Closing, the Second Closing, and, if applicable, the Purchase 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. -13- 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 a nationally 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: R.F. & E.A. Sexton Family Limited Partnership II 4433 Potomac Dallas, Texas 75205 Telecopy: (214) 360-0435 if to Purchaser: Solico International, Inc. 922 Isom San Antonio, Texas 78216 Attn: J. Collier Sparks with a copy (which shall not constitute notice) to: Andrews Kurth LLP 111 Congress Avenue Suite 1700 Austin, Texas 78701-4069 Attn: Carmelo Gordian Telecopy: (512) 320-9292 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, and its validity, construction, interpretation and legal effect shall be governed by the laws of the State of Texas, 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. -14- 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 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, if any, 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 the a Closing Date and the Purchase Option Closing Date, if any, 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 each 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 written 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. -15- 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. 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] -16- 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: /s/ J. COLLIER SPARKS ------------------------------- Name: J. Collier Sparks ----------------------------- Title: President ---------------------------- R.F. & E.A. FAMILY LIMITED PARTNERSHIP II By: /s/ ROBERT F. SEXTON -------------------------------- Name: Robert F. Sexton ------------------------------ Title: General Partner ----------------------------- -17- EX-99.16 9 ex99-16.txt STOCK PURCHASE AGREEMENT (CAMPBELL, HENDERSON & COMPANY) STOCK PURCHASE AGREEMENT This Stock Purchase Agreement ("Agreement") is made as of November 10, 2003 (the "Effective Date"), by and among Solico International, Inc., a Texas corporation (such corporation and/or its assignees, "Purchaser"), and Campbell, Henderson and Company ("Seller"). Purchaser and Seller are sometimes collectively referred to herein as the "Parties" and individually as a "Party." RECITALS Seller owns 60,000 shares (the "Shares") of the issued and outstanding shares of common stock, par value $.01 per share (the "Common 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 (45,000) of the Shares on the terms and conditions set forth herein. AGREEMENT The parties, in consideration of the mutual covenants, agreements and understandings herein contained, and intending to be legally bound, hereby agree as follows: ARTICLE I DEFINITIONS ----------- 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. "CLOSING" has the meaning set forth in Section 2.3. "CLOSING DATE" means the date and time as of which the First Closing, Second Closing or Purchase Option Closing actually takes place. "CODE" means the Internal Revenue Code of 1986, as amended. "COMPANY" has the meaning set forth in the preamble hereto. "COMPANY TRANSACTIONS" means 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). "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: -1- (a) the delivery of the Purchase Price in exchange for the Shares, and Purchaser's ownership and control of the Shares; (b) the execution, delivery and performance of the other Transaction Documents; (c) the satisfaction of all conditions set forth in Articles VI and VII; and (d) 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(a). "FIRST CLOSING SHARES" has the meaning set forth in Section 2.1(a). "FIRST PURCHASE PRICE" has the meaning set forth in Section 2.1(a). "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" -2- 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. "LOAN DOCUMENTS" means, collectively, (i) the Note Secured By Stock Pledge Agreement dated as of September 22, 2003, made by George K. Broady in favor of Danny W. Mills in the original principal amount of $200,000, (ii) the Stock Pledge Agreement dated as of September 22, 2003, by and between George K. Broady and Danny W. Mills, and (iii) all other documents and instruments contemplated thereby to be executed by one or more of the parties thereto in connection with the consummation of the transactions contemplated therein. "MATERIAL ADVERSE EFFECT" means a material and adverse effect upon the Contemplated Transactions or upon the business, assets, liabilities, condition (financial or otherwise), operating results, employee, customer or supplier relations, business prospects, cash flow or working capital of the Company. "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. "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. "PURCHASE OPTION" has the meaning set forth in Section 2.2(a). "PURCHASE OPTION CLOSING" has the meaning set forth in Section 2.2(c). "PURCHASE OPTION EXPIRATION DATE" has the meaning set forth in Section 2.2(a). "PURCHASE OPTION PURCHASE PRICE" has the meaning set forth in Section 2.2(a). "PURCHASE PRICE" has the meaning set forth in Section 2.1. "PURCHASED SHARES" has the meaning set forth in Section 2.1. "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. -3- "PURCHASE PRICE" has the meaning set forth in Section 2.1. "PURCHASER" has the meaning set forth in the preamble hereto. "PURCHASER DISCLOSURE SCHEDULE" has the meaning set forth in the preamble to Article IV. "SEC" means Securities and Exchange Commission. "SECOND CLOSING" has the meaning set forth in Section 2.1(b). "SECOND CLOSING SHARES" has the meaning set forth in Section 2.1(b). "SECOND PURCHASE PRICE" has the meaning set forth in Section 2.1(b). "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 2.4(a)(iii). "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 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 -------------- 2.1 TRANSACTIONS. 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, (45,000) of the Shares (the "Purchased Shares") for an aggregate purchase price of $105,000 (the "Purchase Price"), as follows: (a) First Closing. The closing (the "First Closing") of the purchase and sale of 15,000 of the Purchased Shares (the "First Closing Shares"), for a purchase price of $2.00 per share (the "First Purchase Price"), will take place at 11:00 a.m. Central, on or before December 15, 2003, at the offices of Andrews & Kurth L.L.P., 111 Congress Avenue, Suite 1700, Austin, Texas 78701, or at such other time and place as the Parties may agree. -4- (b) Second Closing. The closing (the "Second Closing") of the purchase of 15,000 Purchased Shares (the "Second Closing Shares"), for a purchase price of $2.25 per share (the "Second Purchase Price"), will take place at 11:00 a.m. Central, on March 30, 2004 at the offices of Andrews & Kurth L.L.P., 111 Congress Avenue, Suite 1700, Austin, Texas 78701, or at such other time and place as the Parties may agree. 2.2 PURCHASE OPTION. (a) Option. Purchaser shall have the right, but not the obligation, to purchase 15,000 of the remaining Shares owned by Seller after the Second Closing (the "Option Shares"), at any time after the Second Closing and on or before June 30, 2004 (the "Purchase Option Expiration Date"), for a purchase price of $2.75 per share (the "Purchase Option Purchase Price"). (b) Exercise. Purchaser may exercise the Purchase Option by delivery of written notice to Seller of its election to exercise the Purchase Option on or before the Purchase Option Expiration Date. (c) Purchase Option Closing. The closing of the purchase and sale of the Option Shares pursuant to the exercise of the Purchase Option by Purchaser (the "Purchase Option Closing") will take place at 11:00 a.m. Central no later than ten (10) business days following the date of delivery to Seller of Purchaser's notice of exercise pursuant to Section 2.3(b) above, at the offices of Andrews & Kurth L.L.P., 111 Congress Avenue, Suite 1700, Austin, Texas 78701, or at such other time and place as the Parties may agree. 2.3 CLOSING DELIVERIES. At the First Closing, Second Closing, and Purchase Option Closing, if any (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; (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) deliver to Seller the portion of the Purchase Price for the Shares to be purchased at such Closing, or the Purchase Option Price in the case of the Purchase Option Closing, by wire transfer of immediately available funds to an account designated by Seller; and (ii) 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. -5- 2.4 VOTING RIGHTS; IRREVOCABLE PROXY. The Parties agree that as of the Effective Date, Purchaser alone shall exercise all voting rights with respect to all of the Purchased Shares and Option Shares owned by Seller (the "Voting Shares"). Accordingly, Seller hereby grants to Purchaser, effective as of the Effective Date, 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 to be taken in respect of the Voting Shares, including, without limitation, taking action with respect to any matter submitted to the vote of the holders of Common 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 Voting Shares. Seller hereby waives any appraisal rights or rights to dissent under applicable Legal Requirements arising due to Seller's ownership of any Voting Shares. Notwithstanding the foregoing, in the event that the Second Closing is not consummated on or before March 30, 2004, and the date of such Second Closing has not been extended by the mutual agreement of the Parties, then the proxy set forth in this Section 2.5 shall terminate and be of no further force or effect. ARTICLE III REPRESENTATIONS AND WARRANTIES OF SELLERS ----------------------------------------- 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 AUTHORITY. Seller has full power and authority to execute and deliver this Agreement and to perform his obligations hereunder. 3.2 ENFORCEABILITY; 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 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 or the Loan 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 any Legal Requirement or any Order to which Seller or any of the assets owned or used by Seller 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; -6- (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 (i) on the Effective Date, the record and beneficial owner and holder of all of the Shares (including the Mills Shares, First Closing Shares, Second Closing Shares and Option Shares), (ii) on the First Closing Date the record and beneficial owner and holder of the First Closing Shares, Second Closing Shares and Option Shares, (iii) on the Second Closing Date, the owner and holder of the Second Closing Shares and the Option Shares, and (iv) on the Purchase Option Closing Date the record and beneficial owner and holder 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 and the Loan Documents. 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. (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. Except as otherwise disclosed in publicly-available filings made by the Company or Seller with the SEC, 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 as otherwise disclosed in publicly- available filings made by the Company or Seller with the SEC, 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. Except as otherwise disclosed in publicly- available filings made by the Company or Seller with the SEC, 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 -7- (including, without limitation, reasonable attorneys' fees and out-of-pocket expenses) arising in connection with any such claim. 3.7 DISCLOSURE. No representation or warranty of Seller in this Agreement and no statement in the Seller 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 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. There is no fact known to Seller that has specific application to either Seller or the Company (other than general economic or industry conditions) and that could have a Material Adverse Effect. ARTICLE IV REPRESENTATIONS AND WARRANTIES OF PURCHASER ------------------------------------------- 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 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 --------- 5.1 BEST EFFORTS. Seller 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 will use its reasonable Best Efforts to cause the Company to, make all filings required by Legal -8- Requirements to be made by them in order to consummate the Contemplated Transactions. Seller will, and 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. 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. 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. Seller agrees that 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 any of 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. 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 and the Second 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 -9- 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. 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 Shares and to take the other actions required to be taken by Purchaser at the First Closing and the Second 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 or be reasonably expected to occur any Material Adverse Effect. 7.3 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, (b) increased any officer's or employee's compensation, incentive arrangements or other benefits out of the Ordinary Course of Business, (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, (d) amended its certificate of incorporation or bylaws, 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. -10- 7.4 PROCEEDINGS. All corporate and other 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 such Closing and all documents incident thereto shall be satisfactory in form and substance to Purchaser and its counsel. 7.5 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. 7.6 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. 7.7 CAPITAL STRUCTURE. Between the Effective Date and such Closing Date, without the prior written consent of Purchaser, 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 Closing under existing option plans on an arm's-length basis in the Ordinary Course of Business. 7.8 CLOSING DOCUMENTS. At such Closing, Seller shall have delivered to Purchaser all of the following documents: (a) a 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 the Purchase Option Closing Date (if any) or Purchase Option Expiration Date (if not exercised), be terminated: (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 the First Closing Date or Second 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; -11- (c) by Purchaser if any of the conditions in Article VII has not been satisfied as of the First Closing Date or Second 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; (e) by either Purchaser or Seller if the First Closing has not occurred on or before December 31, 2003, or such later date as the parties may agree upon; or (f) by Purchaser upon the occurrence of an Event of Default under the Loan Documents. 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 rights and obligations set forth in Section 2.2, 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 any 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 until twelve (12) months following the Purchase Option Expiration Date; provided, the representations, warranties and covenants made under Section 3.3 (Title to Shares) shall survive indefinitely. The right to indemnification, payment of Damages or other remedy based on such representations, warranties, covenants, and obligations will not be affected by any investigation conducted with respect to, or any Knowledge acquired (or capable of being acquired) at any time, whether before or after the execution and delivery of this Agreement or before or after any Closing Date, with respect to the accuracy or inaccuracy of or compliance with, any such representation, warranty, covenant, or obligation. The waiver of any condition based on the accuracy of any representation or warranty, or on the performance of or compliance with any covenant or obligation, will not affect the right to indemnification, payment of Damages, or other remedy based on such representations, warranties, covenants and obligations. 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 (including incidental and consequential damages), 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. -12- 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. -13- 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 aggregate amounts received by Seller at the First Closing, the Second Closing, and, if applicable, the Purchase 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 a nationally 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: ________________ ________________ ________________ Telecopy: _____________ if to Purchaser: Solico International, Inc. 922 Isom San Antonio, Texas 78216 Attn: J. Collier Sparks -14- with a copy (which shall not constitute notice) to: Andrews & Kurth L.L.P. 111 Congress Avenue Suite 1700 Austin, Texas 78701-4069 Attn: Carmelo Gordian Telecopy: (512) 320-9292 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 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 u7nless 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, if any, 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 -15- 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 the a Closing Date and the Purchase Option Closing Date, if any, 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 each 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. 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] -16- 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: /s/ J. COLLIER SPARKS ---------------------------- Name: J. Collier Sparks --------------------------- Title: President -------------------------- CAMPBELL, HENDERSON & COMPANY By: /s/ C. VANCE CAMPBELL ----------------------------- Name: C. Vance Campbell --------------------------- Title: President -------------------------- -17- EX-99.17 10 ex99-17.txt STOCK PURCHASE AGREEMENT (SUSAN CAMPBELL) STOCK PURCHASE AGREEMENT This Stock Purchase Agreement ("Agreement") is made as of November 10, 2003 (the "Effective Date"), by and among Solico International, Inc., a Texas corporation (such corporation and/or its assignees, "Purchaser"), and Susan Campbell ("Seller"). Purchaser and Seller are sometimes collectively referred to herein as the "Parties" and individually as a "Party." RECITALS Seller owns 30,000 shares (the "Shares") of the issued and outstanding shares of common stock, par value $.01 per share (the "Common 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 (22,500) of the Shares on the terms and conditions set forth herein. AGREEMENT The parties, in consideration of the mutual covenants, agreements and understandings herein contained, and intending to be legally bound, hereby agree as follows: ARTICLE I DEFINITIONS ----------- 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. "CLOSING" has the meaning set forth in Section 2.3. "CLOSING DATE" means the date and time as of which the First Closing, Second Closing or Purchase Option Closing actually takes place. "CODE" means the Internal Revenue Code of 1986, as amended. "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: -1- (a) the delivery of the Purchase Price in exchange for the Shares, and Purchaser's ownership and control of the Shares; (b) the execution, delivery and performance of the other Transaction Documents; (c) the satisfaction of all conditions set forth in Articles VI and VII; and (d) 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(a). "FIRST CLOSING SHARES" has the meaning set forth in Section 2.1(a). "FIRST PURCHASE PRICE" has the meaning set forth in Section 2.1(a). "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" -2- 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. "LOAN DOCUMENTS" means, collectively, (i) the Note Secured By Stock Pledge Agreement dated as of September 22, 2003, made by George K. Broady in favor of Danny W. Mills in the original principal amount of $200,000, (ii) the Stock Pledge Agreement dated as of September 22, 2003, by and between George K. Broady and Danny W. Mills, and (iii) all other documents and instruments contemplated thereby to be executed by one or more of the parties thereto in connection with the consummation of the transactions contemplated therein. "MATERIAL ADVERSE EFFECT" means a material and adverse effect upon the Contemplated Transactions or upon the business, assets, liabilities, condition (financial or otherwise), operating results, employee, customer or supplier relations, business prospects, cash flow or working capital of the Company. "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. "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. "PURCHASE OPTION" has the meaning set forth in Section 2.2(a). "PURCHASE OPTION CLOSING" has the meaning set forth in Section 2.2(c). "PURCHASE OPTION EXPIRATION DATE" has the meaning set forth in Section 2.2(a). "PURCHASE OPTION PURCHASE PRICE" has the meaning set forth in Section 2.2(a). "PURCHASE PRICE" has the meaning set forth in Section 2.1. "PURCHASED SHARES" has the meaning set forth in Section 2.1. "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. -3- "PURCHASE PRICE" has the meaning set forth in Section 2.1. "PURCHASER" has the meaning set forth in the preamble hereto. "PURCHASER DISCLOSURE SCHEDULE" has the meaning set forth in the preamble to Article IV. "SEC" means Securities and Exchange Commission. "SECOND CLOSING" has the meaning set forth in Section 2.1(b). "SECOND CLOSING SHARES" has the meaning set forth in Section 2.1(b). "SECOND PURCHASE PRICE" has the meaning set forth in Section 2.1(b). "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 2.4(a)(iii). "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 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 -------------- 2.1 TRANSACTIONS. 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, (22,500) of the Shares (the "Purchased Shares") for an aggregate purchase price of $52,500 (the "Purchase Price"), as follows: (a) First Closing. The closing (the "First Closing") of the purchase and sale of 7,500 of the Purchased Shares (the "First Closing Shares"), for a purchase price of $2.00 per share (the "First Purchase Price"), will take place at 11:00 a.m. Central, on or before December 15, 2003, at the offices of Andrews & Kurth L.L.P., 111 Congress Avenue, Suite 1700, Austin, Texas 78701, or at such other time and place as the Parties may agree. -4- (b) Second Closing. The closing (the "Second Closing") of the purchase of 7,500 Purchased Shares (the "Second Closing Shares"), for a purchase price of $2.25 per share (the "Second Purchase Price"), will take place at 11:00 a.m. Central, on March 30, 2004 at the offices of Andrews & Kurth L.L.P., 111 Congress Avenue, Suite 1700, Austin, Texas 78701, or at such other time and place as the Parties may agree. 2.2 PURCHASE OPTION. (a) Option. Purchaser shall have the right, but not the obligation, to purchase 7,500 of the remaining Shares owned by Seller after the Second Closing (the "Option Shares"), at any time after the Second Closing and on or before June 30, 2004 (the "Purchase Option Expiration Date"), for a purchase price of $2.75 per share (the "Purchase Option Purchase Price"). (b) Exercise. Purchaser may exercise the Purchase Option by delivery of written notice to Seller of its election to exercise the Purchase Option on or before the Purchase Option Expiration Date. (c) Purchase Option Closing. The closing of the purchase and sale of the Option Shares pursuant to the exercise of the Purchase Option by Purchaser (the "Purchase Option Closing") will take place at 11:00 a.m. Central no later than ten (10) business days following the date of delivery to Seller of Purchaser's notice of exercise pursuant to Section 2.3(b) above, at the offices of Andrews & Kurth L.L.P., 111 Congress Avenue, Suite 1700, Austin, Texas 78701, or at such other time and place as the Parties may agree. 2.3 CLOSING DELIVERIES. At the First Closing, Second Closing, and Purchase Option Closing, if any (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; (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) deliver to Seller the portion of the Purchase Price for the Shares to be purchased at such Closing, or the Purchase Option Price in the case of the Purchase Option Closing, by wire transfer of immediately available funds to an account designated by Seller; and (ii) 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. -5- 2.4 VOTING RIGHTS; IRREVOCABLE PROXY. The Parties agree that as of the Effective Date, Purchaser alone shall exercise all voting rights with respect to all of the Purchased Shares and Option Shares owned by Seller (the "Voting Shares"). Accordingly, Seller hereby grants to Purchaser, effective as of the Effective Date, 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 to be taken in respect of the Voting Shares, including, without limitation, taking action with respect to any matter submitted to the vote of the holders of Common 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 Voting Shares. Seller hereby waives any appraisal rights or rights to dissent under applicable Legal Requirements arising due to Seller's ownership of any Voting Shares. Notwithstanding the foregoing, in the event that the Second Closing is not consummated on or before March 30, 2004, and the date of such Second Closing has not been extended by the mutual agreement of the Parties, then the proxy set forth in this Section 2.5 shall terminate and be of no further force or effect. ARTICLE III REPRESENTATIONS AND WARRANTIES OF SELLERS ----------------------------------------- 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 AUTHORITY. Seller has full power and authority to execute and deliver this Agreement and to perform his obligations hereunder. 3.2 ENFORCEABILITY; 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 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 or the Loan 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 any Legal Requirement or any Order to which Seller or any of the assets owned or used by Seller 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; -6- (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 (i) on the Effective Date, the record and beneficial owner and holder of all of the Shares (including the Mills Shares, First Closing Shares, Second Closing Shares and Option Shares), (ii) on the First Closing Date the record and beneficial owner and holder of the First Closing Shares, Second Closing Shares and Option Shares, (iii) on the Second Closing Date, the owner and holder of the Second Closing Shares and the Option Shares, and (iv) on the Purchase Option Closing Date the record and beneficial owner and holder 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 and the Loan Documents. 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. (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. Except as otherwise disclosed in publicly-available filings made by the Company or Seller with the SEC, 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 as otherwise disclosed in publicly- available filings made by the Company or Seller with the SEC, 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. Except as otherwise disclosed in publicly- available filings made by the Company or Seller with the SEC, 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 -7- (including, without limitation, reasonable attorneys' fees and out-of-pocket expenses) arising in connection with any such claim. 3.7 DISCLOSURE. No representation or warranty of Seller in this Agreement and no statement in the Seller 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 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. There is no fact known to Seller that has specific application to either Seller or the Company (other than general economic or industry conditions) and that could have a Material Adverse Effect. ARTICLE IV REPRESENTATIONS AND WARRANTIES OF PURCHASER ------------------------------------------- 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 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 --------- 5.1 BEST EFFORTS. Seller 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 will use its reasonable Best Efforts to cause the Company to, make all filings required by Legal -8- Requirements to be made by them in order to consummate the Contemplated Transactions. Seller will, and 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. 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. 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. Seller agrees that 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 any of 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. 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 and the Second 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 -9- 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. 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 Shares and to take the other actions required to be taken by Purchaser at the First Closing and the Second 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 or be reasonably expected to occur any Material Adverse Effect. 7.3 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, (b) increased any officer's or employee's compensation, incentive arrangements or other benefits out of the Ordinary Course of Business, (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, (d) amended its certificate of incorporation or bylaws, 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. -10- 7.4 PROCEEDINGS. All corporate and other 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 such Closing and all documents incident thereto shall be satisfactory in form and substance to Purchaser and its counsel. 7.5 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. 7.6 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. 7.7 CAPITAL STRUCTURE. Between the Effective Date and such Closing Date, without the prior written consent of Purchaser, 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 Closing under existing option plans on an arm's-length basis in the Ordinary Course of Business. 7.8 CLOSING DOCUMENTS. At such Closing, Seller shall have delivered to Purchaser all of the following documents: (a) a 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 the Purchase Option Closing Date (if any) or Purchase Option Expiration Date (if not exercised), be terminated: (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 the First Closing Date or Second 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; -11- (c) by Purchaser if any of the conditions in Article VII has not been satisfied as of the First Closing Date or Second 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; (e) by either Purchaser or Seller if the First Closing has not occurred on or before December 31, 2003, or such later date as the parties may agree upon; or (f) by Purchaser upon the occurrence of an Event of Default under the Loan Documents. 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 rights and obligations set forth in Section 2.2, 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 any 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 until twelve (12) months following the Purchase Option Expiration Date; provided, the representations, warranties and covenants made under Section 3.3 (Title to Shares) shall survive indefinitely. The right to indemnification, payment of Damages or other remedy based on such representations, warranties, covenants, and obligations will not be affected by any investigation conducted with respect to, or any Knowledge acquired (or capable of being acquired) at any time, whether before or after the execution and delivery of this Agreement or before or after any Closing Date, with respect to the accuracy or inaccuracy of or compliance with, any such representation, warranty, covenant, or obligation. The waiver of any condition based on the accuracy of any representation or warranty, or on the performance of or compliance with any covenant or obligation, will not affect the right to indemnification, payment of Damages, or other remedy based on such representations, warranties, covenants and obligations. 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 (including incidental and consequential damages), 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. -12- 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. -13- 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 aggregate amounts received by Seller at the First Closing, the Second Closing, and, if applicable, the Purchase 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 a nationally 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: ________________ ________________ ________________ Telecopy: _____________ if to Purchaser: Solico International, Inc. 922 Isom San Antonio, Texas 78216 Attn: J. Collier Sparks -14- with a copy (which shall not constitute notice) to: Andrews & Kurth L.L.P. 111 Congress Avenue Suite 1700 Austin, Texas 78701-4069 Attn: Carmelo Gordian Telecopy: (512) 320-9292 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 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 u7nless 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, if any, 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 -15- 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 the a Closing Date and the Purchase Option Closing Date, if any, 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 each 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. 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] -16- 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: /s/ J. COLLIER SPARKS ---------------------------- Name: J. Collier Sparks -------------------------- Title: President ------------------------- /s/ SUSAN T. CAMPBELL -------------------------------- SUSAN CAMPBELL -17 EX-99.18 11 ex99-18.txt STOCK PURCHASE AGREEMENT (CHAS. A. NEAL & COMPANY) STOCK PURCHASE AGREEMENT This Stock Purchase Agreement ("Agreement") is made as of November 10, 2003 (the "Effective Date"), by and among SOLICO INTERNATIONAL, INC., a Texas corporation (such corporation and/or its assignees, "Purchaser"), and CHAS. A. NEAL & COMPANY, an Oklahoma corporation ("Seller"). Purchaser and Seller are sometimes collectively referred to herein as the "Parties" and individually as a "Party." RECITALS WHEREAS, Seller owns 169,400 shares (the "Shares") of the issued and outstanding shares of common stock, par value $.01 per share (the "Common Stock") of American Building Control, Inc., a Delaware corporation (the "Company"). WHEREAS, Purchaser desires to acquire, and Seller desires to sell, all right, title and interest of Seller in and to all (169,400) of the Shares on the terms and conditions set forth herein. AGREEMENT NOW, THEREFORE, The parties, in consideration of the mutual covenants, agreements and understandings herein contained, and intending to be legally bound, hereby agree as follows: ARTICLE I DEFINITIONS ----------- For purposes of this Agreement, the following terms have the meanings specified or referred to in this Article I: "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. "CLOSING" has the meaning set forth in Section 2.3. "CLOSING DATE" means the date and time as of which the First Closing, Second Closing or Purchase Option Closing actually takes place. "CODE" means the Internal Revenue Code of 1986, as amended. "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: -1- (a) the delivery of the Purchase Price in exchange for the Shares, and Purchaser's ownership and control of the Shares; (b) the execution, delivery and performance of the other Transaction Documents; (c) the satisfaction of all conditions set forth in Articles VI and VII; and (d) 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. "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(a). "FIRST CLOSING SHARES" has the meaning set forth in Section 2.1(a). "FIRST PURCHASE PRICE" has the meaning set forth in Section 2.1(a). "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. -2- "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, condition (financial or otherwise), operating results, employee, customer or supplier relations, business prospects, cash flow or working capital of the Company. "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. "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. "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. "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 OPTION" has the meaning set forth in Section 2.2(a). "PURCHASE OPTION CLOSING" has the meaning set forth in Section 2.2(c). "PURCHASE OPTION EXPIRATION DATE" has the meaning set forth in Section 2.2(a). "PURCHASE OPTION PURCHASE PRICE" has the meaning set forth in Section 2.2(a). "PURCHASE PRICE" has the meaning set forth in Section 2.1. "PURCHASED SHARES" has the meaning set forth in Section 2.1. "PURCHASER DISCLOSURE SCHEDULE" has the meaning set forth in the preamble to Article IV. "SEC" means Securities and Exchange Commission. "SECOND CLOSING" has the meaning set forth in Section 2.1(b). "SECOND CLOSING SHARES" has the meaning set forth in Section 2.1(b). "SECOND PURCHASE PRICE" has the meaning set forth in Section 2.1(b). "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. -3- "SELLER COMPLIANCE CERTIFICATE" has the meaning set forth in Section 2.4(a)(iii). "SELLER DISCLOSURE SCHEDULE" has the meaning set forth in the preamble to Article III. "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 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 -------------- 2.1 TRANSACTIONS. 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, all (169,400) of the Shares (the "Purchased Shares") for an aggregate purchase price of $412,912.50 (the "Purchase Price"), as follows: (a) First Closing. The closing (the "First Closing") of the purchase and sale of 42,350 of the Purchased Shares (the "First Closing Shares"), for a purchase price of $2.00 per share (the "First Purchase Price"), will take place at 11:00 a.m. Central Standard Time, on or before December 15, 2003, at the offices of Andrews Kurth LLP, 111 Congress Avenue, Suite 1700, Austin, Texas 78701, or at such other time and place as the Parties may agree. (b) Second Closing. The closing (the "Second Closing") of the purchase of 42,350 Purchased Shares (the "Second Closing Shares"), for a purchase price of $2.25 per share (the "Second Purchase Price"), will take place at 11:00 a.m. Central Standard Time, on March 30, 2004 at the offices of Andrews Kurth LLP, 111 Congress Avenue, Suite 1700, Austin, Texas 78701, or at such other time and place as the Parties may agree. 2.2 PURCHASE OPTION. (a) Option. Purchaser shall have the right, but not the obligation, to purchase 84,700 of the remaining Shares (the "Purchase Option") owned by Seller after the Second Closing (the "Option Shares"), at any time after the Second Closing and on or before June 30, 2004 (the "Purchase Option Expiration Date"), for a purchase price of $2.75 per share (the "Purchase Option Purchase Price"). (b) Exercise. Purchaser may exercise the Purchase Option by delivery of written notice to Seller of its election to exercise the Purchase Option on or before the Purchase Option Expiration Date. (c) Purchase Option Closing. The closing of the purchase and sale of the Option Shares pursuant to the exercise of the Purchase Option by Purchaser (the "Purchase Option Closing") will take place at 11:00 a.m. Central Standard Time no later than ten (10) business days following the date of -4- delivery to Seller of Purchaser's notice of exercise pursuant to Section 2.3(b) above, at the offices of Andrews Kurth LLP, 111 Congress Avenue, Suite 1700, Austin, Texas 78701, or at such other time and place as the Parties may agree. 2.3 CLOSING DELIVERIES. At the First Closing, Second Closing, and Purchase Option Closing, if any (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; (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) deliver to Seller the portion of the Purchase Price for the Shares to be purchased at such Closing, or the Purchase Option Price in the case of the Purchase Option Closing, by wire transfer of immediately available funds to an account designated by Seller; and (ii) 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. The Parties agree that as of the Effective Date, Purchaser alone shall exercise all voting rights with respect to all of the Purchased Shares and Option Shares owned by Seller (the "Voting Shares"). Accordingly, Seller hereby grants to Purchaser, effective as of the Effective Date, 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 to be taken in respect of the Voting Shares, including, without limitation, taking action with respect to any matter submitted to the vote of the holders of Common 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 Voting Shares. Seller hereby waives any appraisal rights or rights to dissent under applicable Legal Requirements arising due to Seller's ownership of any Voting Shares. Notwithstanding the foregoing, in the event that the Second Closing is not consummated on or before March 30, 2004, and the date of such Second Closing has not been extended by the mutual agreement of the Parties, then the proxy set forth in this Section 2.5 shall terminate and be of no further force or effect. -5- ARTICLE III REPRESENTATIONS AND WARRANTIES OF SELLERS ----------------------------------------- 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 AUTHORITY. Seller has full power and authority to execute and deliver this Agreement and to perform his obligations hereunder. 3.2 ENFORCEABILITY; 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 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 any Legal Requirement or any Order to which Seller or any of the assets owned or used by Seller 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 (i) on the Effective Date, the record and beneficial owner and holder of all of the Shares (including the First Closing Shares, Second Closing Shares and Option Shares), (ii) on the First Closing Date the record and beneficial owner and holder of the First Closing Shares, Second Closing Shares and Option Shares, (iii) on the Second Closing Date, the owner and holder of the Second Closing Shares and the Option Shares, and (iv) on the Purchase Option Closing Date the record and beneficial owner and holder 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 and the Loan Documents. 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. -6- 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. (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. Except as otherwise disclosed in publicly-available filings made by the Company or Seller with the SEC, 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 as otherwise disclosed in publicly- available filings made by the Company or Seller with the SEC, 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. Except as otherwise disclosed in publicly- available filings made by the Company or Seller with the SEC, 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. In no event shall the aggregate liability of Seller under this Article III exceed the aggregate amounts received by Seller at the First Closing, the Second Closing and, if applicable, the Purchase Option Closing. 3.7 DISCLOSURE. No representation or warranty of Seller in this Agreement and no statement in the Seller 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 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. There is no fact known to Seller that has specific application to either Seller or the Company (other than general economic or industry conditions) and that could have a Material Adverse Effect. -7- ARTICLE IV REPRESENTATIONS AND WARRANTIES OF PURCHASER ------------------------------------------- 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 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 5.1 BEST EFFORTS. Seller 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 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. Seller will, and 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. 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 -8- 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. 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. Seller agrees that 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 any of 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. 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 and the Second 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. -9- (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. 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 Shares and to take the other actions required to be taken by Purchaser at the First Closing and the Second 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 or be reasonably expected to occur any Material Adverse Effect. 7.3 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, (b) increased any officer's or employee's compensation, incentive arrangements or other benefits out of the Ordinary Course of Business, (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, (d) amended its certificate of incorporation or bylaws, 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. 7.4 PROCEEDINGS. All corporate and other 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 such Closing and all documents incident thereto shall be satisfactory in form and substance to Purchaser and its counsel. 7.5 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. -10- 7.6 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. 7.7 CAPITAL STRUCTURE. Between the Effective Date and such Closing Date, without the prior written consent of Purchaser, 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 Closing under existing option plans on an arm's-length basis in the Ordinary Course of Business. 7.8 CLOSING DOCUMENTS. At such Closing, Seller shall have delivered to Purchaser all of the following documents: (a) a Seller Compliance Certificate; and (b) 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 the Purchase Option Closing Date (if any) or Purchase Option Expiration Date (if not exercised), be terminated: (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 the First Closing Date or Second 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 the First Closing Date or Second Closing Date; (d) by mutual consent of Purchaser and Seller; or (e) by either Purchaser or Seller if the First 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 rights and obligations set forth 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 any Closing is not satisfied as a result of the other Party's intentional or -11- 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 until twelve (12) months following the Purchase Option Expiration Date; provided, the representations, warranties and covenants made under Section 3.3 (Title to Shares) shall survive indefinitely. The right to indemnification, payment of Damages or other remedy based on such representations, warranties, covenants, and obligations will not be affected by any investigation conducted with respect to, or any Knowledge acquired (or capable of being acquired) at any time, whether before or after the execution and delivery of this Agreement or before or after any Closing Date, with respect to the accuracy or inaccuracy of or compliance with, any such representation, warranty, covenant, or obligation. The waiver of any condition based on the accuracy of any representation or warranty, or on the performance of or compliance with any covenant or obligation, will not affect the right to indemnification, payment of Damages, or other remedy based on such representations, warranties, covenants and obligations. 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 (including incidental and consequential damages), 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. 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 -12- 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 ten percent (10%) per annum from the date 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 aggregate amounts received by Seller at the First Closing, the Second Closing, and, if applicable, the Purchase 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. -13- 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 a nationally 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: Chas. A. Neal & Company P.O. Box 269 Miami, Oklahoma 75355 Attn: Charles C. "Chuck" Neal Telecopy: (918) 542-4170 if to Purchaser: Solico International, Inc. 922 Isom San Antonio, Texas 78216 Attn: J. Collier Sparks with a copy (which shall not constitute notice) to: Andrews Kurth LLP 111 Congress Avenue Suite 1700 Austin, Texas 78701-4069 Attn: Carmelo Gordian Telecopy: (512) 320-9292 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, and its validity, construction, interpretation and legal effect shall be governed by the laws of the State of Texas, 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. -14- 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 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, if any, 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 the a Closing Date and the Purchase Option Closing Date, if any, 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 each 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 written 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. -15- 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. 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] -16- 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: /s/ J. COLLIER SPARKS -------------------------- Name: J. Collier Sparks ------------------------ Title: President ----------------------- CHAS. A. NEAL & COMPANY, an Oklahoma corporation By: /s/ CHARLES C. NEAL --------------------------- Name: Charles C. Neal ------------------------- Title: President ------------------------ -17- EX-99.19 12 ex99-19.txt AMENDMENT NO. 2 TO STOCK PURCHASE AGREEMENT (CAMPBELL/CANTRELL) AMENDMENT NO. 2 to STOCK PURCHASE AGREEMENT This Amendment No. 2 to Stock Purchase Agreement (this "Amendment") is entered into as of October 31, 2003, by and between Solico International, Inc., a Texas corporation ("Purchaser"), and Vance Campbell, Tom Campbell, Cantrell Partners, and Lynn Kinney (collectively the "Sellers"). The Purchaser and the Sellers 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, as amended by that certain Amendment No. 1 to Stock Purchase Agreement, dated as of October 9, 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 2.1. Subsection (a) of Section 2.1 of the Stock Purchase Agreement is deleted in its entirety and replaced with the following language: "(a) First Closing. The closing (the "First Closing") of the purchase and sale of 170,194 of the Purchased Shares (the "First Closing Shares"), for an aggregate purchase price of $340,388 (the "First Purchase Price"), as indicated for each Seller on Schedule A attached hereto under the column "First Closing," will take place at 11:00 a.m. Central, on or before November 15, 2003 at the offices of Andrews & Kurth L.L.P., 111 Congress Avenue, Suite 1700, Austin, Texas 78701, or at such other time and place as the Parties may agree." 2. AMENDMENT OF SECTION 8.1. Subsection (e) of Section 8.1 of the Stock Purchase Agreement is deleted in its entirety and replaced with the following language: "(e) by either Purchaser or Sellers (by action of Sellers owning a majority of the Shares owned by all Sellers) if the First Closing has not occurred on or before November 30, 2003, or such later date as the parties may agree upon; or" -1- 3. 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. 4. 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] -2- 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/ J. COLLIER SPARKS ----------------------------- Name: J. Collier Sparks --------------------------- Title: President -------------------------- /s/ VANCE CAMPBELL -------------------------------- Vance Campbell /s/ TOM CAMPBELL -------------------------------- Tom Campbell CANTRELL PARTNERS By: /s/ LYNN B. KINNEY ---------------------------- Name: Lynn B. Kinney --------------------------- Title: Managing Partner -------------------------- /s/ LYNN KINNEY -------------------------------- Lynn Kinney EX-99.20 13 ex99-20.txt AMENDMENT NO. 2 TO STOCK PURCHASE AGREEMENT (JOHN BROADY, ET AL.) AMENDMENT NO. 2 to STOCK PURCHASE AGREEMENT This Amendment No. 2 to Stock Purchase Agreement (this "Amendment") is entered into as of October 31, 2003, by and between Solico International, Inc., a Texas corporation ("Purchaser"), and John Broady, Ruth Ward, Mary Bill, Judith Mader, Vincent Suttmeier and Robert Suttmeier (collectively the "Sellers"). The Purchaser and the Sellers 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, as amended by that certain Amendment No. 1 to Stock Purchase Agreement, dated October 9, 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 2.1. Subsection (a) of Section 2.1 of the Stock Purchase Agreement is deleted in its entirety and replaced with the following language: "(a) First Closing. The closing (the "First Closing") of the purchase and sale of 42,450 of the Purchased Shares (the "First Closing Shares"), for an aggregate purchase price of $84,900 (the "First Purchase Price"), as indicated for each Seller on Schedule A attached hereto under the column "First Closing," will take place at 11:00 a.m. Central, on or before November 15, 2003 at the offices of Andrews & Kurth L.L.P., 111 Congress Avenue, Suite 1700, Austin, Texas 78701, or at such other time and place as the Parties may agree. 2. AMENDMENT OF SECTION 8.1. Subsection (e) of Section 8.1 of the Stock Purchase Agreement is deleted in its entirety to be replaced by the following language: "(e) by either Purchaser or Sellers (by action of Sellers owning a majority of the Shares owned by all Sellers) if the First Closing has not occurred on or before November 30, 2003, or such later date as the parties may agree upon; or" -1- 3. 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. 4. 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] -2- 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/ J. COLIER SPARKS ------------------------------ Name: J. Collier Sparks ---------------------------- Title: President --------------------------- /s/ JOHN BROADY --------------------------------- John Broady /s/ RUTH WARD --------------------------------- Ruth Ward /s/ MARY BILL -------------------------------- Mary Bill /s/ JUDITH MADER -------------------------------- Judith Mader /s/ VINCENT SUTTMEIER -------------------------------- Vincent Suttmeier /s/ ROBERT SUTTMEIER -------------------------------- Robert Suttmeier -----END PRIVACY-ENHANCED MESSAGE-----