STOCK PURCHASE AGREEMENT
This Stock Purchase Agreement ("Agreement") is made as of
September 22, 2003 (the "Effective Date"), by and among Solico
International, Inc., a Texas corporation (such corporation and/or
its assignees, "Purchaser"), and the parties listed on Schedule A
hereto (each, a "Seller" and collectively, the "Sellers").
Purchaser and Sellers are sometimes collectively referred to
herein as the "Parties" and individually as a "Party."
RECITALS
Sellers own 680,776 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 Sellers desires to sell,
all right, title and interest of Sellers in and to 510,582 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
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For purposes of this Agreement, the following terms have the
meanings specified or referred to in this Article I:
"Additional Purchase Agreement" has the meaning set forth in
Section 7.3.
"Additional Shares" has the meaning set forth in Section
7.3.
"Agreement" has the meaning set forth in the preamble
hereto.
"Best Efforts" means the efforts that a prudent Person
desirous of achieving a result would use in similar circumstances
to ensure that such result is achieved as expeditiously as
possible.
"Breach" means, with respect to a representation, warranty,
covenant, obligation, or other provision of this Agreement or any
Transaction Document or other certificate or instrument delivered
pursuant to this Agreement, any inaccuracy in or breach of, or
any failure to perform or comply with, such representation,
warranty, covenant, obligation, or other provision.
"Xxxxxx" has the meaning set forth in Section 7.3.
"Xxxxxx Shares" has the meaning set forth in Section 7.3.
"Xxxxxx Purchase Agreement" has the meaning set forth in
Section 7.3.
"Closing" has the meaning set forth in Section 2.3.
"Closing Date" means the date and time as of which the First
Closing or an Option Closing actually takes place.
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"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:
(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 execution, delivery and performance of the Loan
Documents and consummation of the Conversion Transaction;
(d) the satisfaction of all conditions set forth in Articles VI
and VII; and
(e) the performance by Purchaser and Sellers 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.
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"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.
"Initial Purchase Price" has the meaning set forth in
Section 2.1(a).
"Initial Shares" has the meaning set forth in Section
2.1(a).
"Joint Defense Proceeding" has the meaning set forth in
Section 9.3.
"Knowledge" means, with respect to an individual, such
individual being actually aware of such fact; with respect to a
Person other than an individual, such Person will be deemed to
have "Knowledge" of a particular fact if any individual who is
serving as a director, officer, partner, executor or trustee of
such Person (or in any similar capacity) has Knowledge of such
fact.
"Legal Requirement" means any federal, state, local,
municipal, foreign, international, multinational, or other
administrative order, constitution, law, ordinance, principle of
common law, regulation, statute, or treaty.
"Material Adverse Effect" means a material and adverse
effect upon the Contemplated Transactions or upon the business,
assets, liabilities, condition (financial or otherwise),
operating results, employee, customer or supplier relations,
business prospects, cash flow or working capital of the Company.
"Option" has the meaning set forth in Section 2.2(a)(i).
"Option Closing" has the meaning set forth in Section
2.2(c).
"Option Expiration Date" has the meaning set forth in
Section 2.2(a)(i).
"Option Purchase Price" has the meaning set forth in Section
2.2(a)(i).
"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.
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"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 Price" means (i) the First Purchase Price, in the
case of the First Closing Shares, (ii) the Second Purchase Price,
in the case of the Second Closing Shares, and (iii) the Option
Purchase Price, in the case of the Option Shares, if any,
purchased upon exercise of the Option.
"Purchased Shares" 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 2.3(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.
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ARTICLE II
STOCK PURCHASE
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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,
Sellers agree to sell to Purchaser, and Purchaser agrees to
purchase from Sellers, 340,388 of the Shares (the "Purchased
Shares") for an aggregate purchase price of $723,324.50.
(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 October 15, 2003 at the
offices of Xxxxxxx & Xxxxx L.L.P., 000 Xxxxxxxx Xxxxxx, Xxxxx
0000, Xxxxxx, Xxxxx 00000, or at such other time and place as the
Parties may agree.
(b) Second Closing. The closing (the "Second Closing") of the
purchase and sale of 170,194 of the Purchased Shares (the "Second
Closing Shares"), for an aggregate purchase price of $382,936.50
(the "Second Purchase Price"), as indicated for each Seller on
Schedule A attached hereto under the column "Second Closing,"
will take place at 11:00 a.m. Central, on December 15, 2003 at
the offices of Xxxxxxx & Xxxxx L.L.P., 000 Xxxxxxxx Xxxxxx, Xxxxx
0000, Xxxxxx, Xxxxx 00000, or at such other time and place as the
Parties may agree.
2.2 Purchase Options.
(a) Options. Purchaser shall have the right (the "Option"), but
not the obligation, to purchase that number of Shares set forth
opposite each Seller's name on Schedule A hereto under the column
"Option," representing an aggregate of 170,194 Shares (the
"Option Shares"), at any time on or before June 30, 2004 (the
"Option Expiration Date"), for a purchase price of $2.75 per
share (the "Option Purchase Price").
(b) Exercise. Purchaser may exercise the Option by delivery of
written notice to Sellers of its election to exercise the Option
on or before the Option Expiration Date.
(c) Option Closing. The closing of the purchase and sale of
Option Shares pursuant to the exercise of the Option by Purchaser
(an "Option Closing") will take place at 11:00 a.m. Central no
later than ten (10) business days following the date of delivery
to Sellers of Purchaser's notice of exercise pursuant to Section
2.2(b) above, at the offices of Xxxxxxx & Xxxxx L.L.P., 000
Xxxxxxxx Xxxxxx, Xxxxx 0000, Xxxxxx, Xxxxx 00000, or at such
other time and place as the Parties may agree.
2.3 Closing Deliveries. At the First Closing, Second Closing
and Option Closing, if any (each, a "Closing"):
(a) each Seller will deliver to Purchaser:
(i) all certificates representing the Shares owned by such
Seller to be purchased at such Closing, duly endorsed (or
accompanied by duly executed stock powers) for transfer to
Purchaser;
(ii) a certificate executed by each Seller stating that
(a) each of such Seller's representations and warranties in this Agreement
was accurate in all respects as of the Effective Date and
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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) the other certificates, instruments and documents
referred to in Article VII below and required to be delivered by
Sellers on or prior to such Closing Date.
(b) Purchaser will deliver to each Seller:
(i) the Purchase Price for the Shares to be purchased from such
Seller at such Closing, by wire transfer of immediately available
funds to an account designated by such Seller;
(ii) a certificate executed by Purchaser stating that each of
Purchaser's representations and warranties in this Agreement was
accurate in all respects as of the Effective Date and is accurate
in all respects as of such Closing Date as if made on such
Closing Date; and
(iii) the other certificates, instruments and documents
referred to in Article VII below and required to be delivered by
Purchaser on or prior to such Closing Date.
2.4 Voting Rights; Irrevocable Proxy. From and after the First
Closing until July 15, 2004, the Parties agree that Purchaser
alone shall exercise all voting rights with respect to the Second
Closing Shares and Option Shares owned by Sellers. Accordingly,
each Seller hereby grants to Purchaser, effective as of the First
Closing Date, an irrevocable special power of attorney to act as
such Seller's attorney-in-fact to vote on behalf of such Seller,
and to execute any resolution or consent evidencing such Seller's
vote, approval or consent of any action submitted to the vote,
approval or consent, and to execute on behalf of such Seller and
deliver any documentation deemed necessary by Purchaser in
connection with any matter or action to be taken in respect of
the Second Closing Shares and Option Shares, including, without
limitation, taking action with respect to any matter submitted to
the vote of the holders of Common Stock of the Company. Each
Seller hereby agrees to execute all resolutions, consents,
agreements and other documents deemed necessary by Purchaser to
effect and/or evidence the foregoing, and Seller agrees not to
raise any objection to any action so taken by Purchaser in
respect of the Second Closing Shares and the Option Shares. Each
Seller hereby waives any appraisal rights or rights to dissent
under applicable Legal Requirements arising due to such Seller's
ownership of the Second Closing Shares and Option Shares.
Notwithstanding the foregoing, in the event that the Second
Closing 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 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.
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Each Seller jointly and severally represents and warrants to
Purchaser as of the date of this Agreement and as of each Closing
Date that, except as otherwise set forth on the Seller Disclosure
Schedule attached hereto (the "Seller Disclosure Schedule"):
3.1 Organization; Corporate Authority; Good Standing.
(a) Seller, if not an individual, is an entity duly organized,
validly existing and in good standing under the laws of the
jurisdiction of its organization, with full power and authority
to execute and deliver this Agreement and to perform its
obligations hereunder, and to conduct its business as it is now
being conducted, and to own or use the properties and assets
owned or used by it. Such
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Seller, if not an individual, is not required to qualify to do
business as a foreign corporation in any foreign state or
jurisdiction for which qualifications have not been filed and
approved.
(b) Seller, if an individual, has full power to execute and
deliver this Agreement and to perform his or her obligations
hereunder.
3.2 Authority; No Conflict.
(a) Upon the execution and delivery by Seller of the Transaction
Documents to which Seller is a party, each such Transaction
Document will constitute the legal, valid and binding obligation
of Seller, enforceable against the Seller in accordance with its
terms, except (i) as limited by applicable bankruptcy,
insolvency, reorganization, moratorium and other laws of general
application affecting enforcement of creditors' rights generally
and (ii) as limited by laws relating to the availability of
specific performance, injunctive relief or other equitable
remedies.
(b) Seller will not be required to give any notice to or obtain
any Consent from any Person in connection with the execution and
delivery of the Transaction Documents or the consummation or
performance of any of the Contemplated Transactions, and neither
the execution and delivery of the Transaction Documents nor the
consummation or performance of any of the Contemplated
Transactions will, directly or indirectly (with or without notice
or lapse of time):
(i) contravene, conflict with or result in a violation of (A)
if Seller is not an individual, any provision of its organizational
documents, (B) if Seller is not an individual, any currently
effective resolution adopted by its board of directors, its
shareholders and/or any other governing body of such Seller or
(C) any Legal Requirement or any Order to which it or any of the
assets owned or used by it is subject;
(ii) contravene, conflict with or result in a violation
of any of the terms or requirements of, or give any Governmental Body the
right to revoke, withdraw, suspend, cancel, terminate or modify,
any Governmental Authorization that is held by Seller or that
otherwise relates to its business or any of the assets owned or
used by it;
(iii) contravene, conflict with or result in a violation or
breach of any provision of, or give any Person the right to
declare a default or exercise any remedy under, or to accelerate
the maturity or performance of, or to cancel, terminate or
modify, any Contract, or result in the imposition or creation of
any Encumbrance upon or with respect to any of the assets owned
or used by it.
3.3 Title to Shares. Seller is and will be (i) on the First
Closing Date the record and beneficial owner and holder of the
Shares (including both the First Closing Shares, Second Closing
Shares and the Option Shares) set forth opposite Seller's name on
Schedule A hereto, (ii) on the Second Closing Date the record and
beneficial owner and holder of the Second Closing Shares and the
Option Shares set forth opposite Seller's name on Schedule A
hereto, and (iii) on the Option Closing Date, if any, the record
and beneficial owner and holder of the Option Shares set forth
opposite Seller's name on Schedule A hereto, 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. 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. All of the
Shares have been duly authorized and validly issued and are fully
paid and nonassessable. There are no oral or written agreements
relating to the issuance, sale or transfer by Seller of any right
or interest in the Shares.
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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. 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. Neither Seller nor any Person
related to Seller has or may acquire any rights under, or is
bound by or has or may become subject to any obligation or
liability under, any Contract that relates to the business of, or
any of the assets owned or used by, the Company. Neither Seller
nor any shareholder, director, officer, employee or other Person
related to Seller is indebted to the Company, nor is the Company
indebted (or committed to make loans or extent or guarantee
credit) to any of them. None of such persons has any direct or
indirect ownership interest in any Person with which the Company
is affiliated or with which the Company has a business
relationship, or any Person that competes with the Company,
except for stock in a publicly traded company owned by such
persons representing less than five percent (5%) of the
outstanding capital stock of such company.
3.6 Brokerage. There are no claims for brokerage commissions,
finders' fees or similar compensation in connection with the
Contemplated Transactions based on any arrangement or agreement
binding upon Seller. Seller shall pay, and hold Purchaser
harmless against, any liability, loss or expense (including,
without limitation, reasonable attorneys' fees and out-of-pocket
expenses) arising in connection with any such claim.
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
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Purchaser represents and warrants to Sellers 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
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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
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5.1 Best Efforts. Until the first to occur of (y) the Option
Closing Date (if Purchaser exercises the Option) and (z) the
Option Expiration Date, each of the Parties will use its
reasonable Best Efforts to take all actions and do all things
necessary, proper or advisable in order to consummate and make
effective the Contemplated Transactions (including satisfaction,
but not waiver, of the conditions set forth in Articles VI and
VII); provided, that nothing set forth herein shall obligate
Purchaser to exercise either Option hereunder.
5.2 Required Approvals. As promptly as practicable after the
Effective Date, each Seller will, and together with Purchaser,
will use its reasonable Best Efforts to cause the Company to,
make all filings required by Legal Requirements to be made by
them in order to consummate the Contemplated Transactions. Each
Seller will, and together with Purchaser, will use its reasonable
Best Efforts to cause the Company to, (a) cooperate with
Purchaser with respect to all filings that Purchaser elects to
make or is required by Legal Requirements to make in connection
with the Contemplated Transactions, (b) give required notices to
third parties, (c) obtain any required third party consents and
(d) take any actions reasonably requested by a third party, in
each case, in connection with the Contemplated Transactions.
5.3 Notification. Until the first to occur of (y) the Option
Closing Date (if Purchaser exercises the Option) and (z) the
Option Expiration Date, each Party will give prompt written
notice to the other Parties (a) if it becomes aware that any
representation or warranty made by such Party herein as of the
Effective Date has, to the best Knowledge of such Party,
subsequently become untrue, (b) of the beach of any covenant
hereunder by any Party and (c) of any other material development
that in its reasonable judgment adversely affects its ability to
consummate the Contemplated Transactions.
5.4 Exclusivity. Until the first to occur of (x) the Option
Closing Date (if Purchaser exercises the Option), (y) the Option
Expiration Date, and (z) the failure to consummate the Second
Closing on or before December 15, 2003 or such later date as is
agreed upon by the Parties, each Seller
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agrees that it shall not, directly or indirectly, (a) submit,
solicit, initiate, encourage, vote for or consent to any proposal
or offer from any Person or enter into any Contract or accept any
offer relating to any (i) reorganization, liquidation or
recapitalization of the Company, (ii) merger or consolidation
involving the Company, (iii) purchase or sale of any assets or
capital stock (other than a purchase or sale of equipment in the
Ordinary Course of Business) of the Company or (iv) similar
transaction or business combination involving the Company or the
assets of the Company (each of the foregoing actions described in
clauses (i) through (iv), a "Company Transaction"), or (b)
furnish any information with respect to, assist or participate in
or facilitate in any other manner any effort or attempt to do or
seek to do any of the foregoing.
5.5 Actions with Respect to Shares. Until the first to occur of
(y) the Option Closing Date (if Purchaser exercises the Option)
and (z) the Option Expiration Date, each 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 Sellers;
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 Sellers.
ARTICLE VI
CONDITIONS PRECEDENT TO OBLIGATION TO CLOSE
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Each Party's obligation to take the actions required to be
taken by such Party at the First Closing, the Second Closing,
and the Option Closing, if any, 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.
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(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 the 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 Other Stock Purchase Transactions.
(a) Purchaser and Xxxxxx X. Xxxxxx ("Xxxxxx") shall have entered
into a definitive, binding agreement (the "Xxxxxx Purchase
Agreement"), satisfactory to Purchaser and its counsel, pursuant
to which Purchaser shall acquire (or have the right to acquire) a
minimum of 775,000 shares (the "Xxxxxx Shares") of Common Stock
owned by Xxxxxx;
(b) Purchaser, Strategic Resources Ltd., Xxxx Xxxxxx, Xxxx Xxxx,
Xxxx Xxxx, Xxxxxx Xxxxx, Xxxxxxx Xxxxxxxxx and Xxxxxx Xxxxxxxxx
shall have entered into a definitive, binding agreement (the
"Additional Purchase Agreement"), satisfactory to Purchaser and
its counsel, pursuant to which Purchaser shall acquire (or have
the right to acquire) a minimum of 239,850 shares (the
"Additional Shares") of Common Stock; and
(c) all conditions precedent to the obligations of Purchaser to
purchase the Xxxxxx Shares and the Additional Shares and perform
all of its obligations under the Xxxxxx Purchase Agreement and
the Additional Purchase Agreement shall have been satisfied or
waived by Purchaser in writing.
7.4 Resignation of Directors. The size of the board of
directors of the Company shall be five (5) directors, and there
shall be at least one vacancy on the board of directors of the
Company as a result
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of the resignation of at least one director in accordance with
the Company's bylaws, such resignation to be effective upon or
prior to the consummation of such Closing.
(a) Approval of Board of Directors. The Company shall have
delivered copies certified as true, correct and complete by the
Secretary of the Company of resolutions (in a form reasonably
satisfactory to Purchaser and its counsel) duly adopted by the
board of directors of the Company appointing at least one Person
designated by Purchaser to the Company's board of directors in
accordance with the Company's bylaws.
7.5 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.
7.6 Proceedings. All corporate and other required or necessary
to be taken by the Company or Sellers 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.
7.7 Filings. The Company and Sellers 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.
7.8 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 any Seller is a party,
will have been obtained on terms and conditions satisfactory to
Purchaser.
7.9 Capital Structure. Between the Effective Date and such
Closing Date, the Company will not have issued or entered into
any Contract to issue any shares of its capital stock or options,
warrants or securities convertible into or exercisable for shares
of its capital stock other than shares issuable upon the exercise
of options, warrants or securities convertible into or
exercisable for shares of its capital stock that are outstanding
as of the Effective Date or granted prior to Closing under
existing option plans on an arm's-length basis in the Ordinary
Course of Business.
7.10 Closing Documents. At such Closing, each 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
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(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 Option Closing Date (if any) or the Option
Expiration Date (if not exercised), be terminated:
(a) by either (y) Purchaser or (z) Sellers owning a majority of
the Shares owned by all of the Sellers 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 (y) Purchaser or (z) Sellers owning a majority of
the Shares owned by all Sellers if any of the conditions in
Article VI has not been satisfied as of a 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 a 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 Sellers owning a majority
of the Shares owned by all Sellers;
(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 October 30, 2003, or such
later date as the parties may agree upon; or
(f) by Purchaser upon the occurrence of an event of default
under any of (i) that certain Note Secured by Stock Pledge
Agreement, dated as of even date herewith, by Seller in favor of
Xxxxx X. Xxxxx, (ii) that certain Stock Pledge Agreement, dated
as of even date herewith, by and between Seller and Xxxxx X.
Xxxxx, and (iii) any documents or instruments ancillary thereto.
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 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.
-13-
9.2 Indemnification. Subject to the limitations set forth in
Section 9.3 below, the Sellers, on a joint and several basis, and
Purchaser (in either such case, 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.
-14-
9.4 Payment of Indemnification Damages. Any payment pursuant to
a claim for indemnification shall be made not later than thirty
(30) days after receipt by the Indemnifying Party of written
notice from the Indemnified Person stating the amount of the
claim, unless the claim is subject to a defense as provided in
Section 9.3, in which case payment shall be made not later than
thirty (30) days after the amount of the claim is finally
determined. Any payment required under this Section 9.4 shall
bear interest at the rate of eighteen percent (18%) per annum,
or, if less, the maximum rate permitted by applicable usury laws
from the date that the Indemnified Person incurred the Damages
for which indemnification is sought. Interest on any unpaid
amount shall be compounded monthly, computed on the basis of a
365-day year and shall be payable on demand. In addition, such
Party shall reimburse the other Party for any and all costs and
expenses of any nature or kind whatsoever (including, without
limitation, all attorneys' fees) incurred in seeking to collect
such Damages following repeated refusal by the owing Party to pay
such Damages and the non-existence of any good faith defense to
payment.
9.5 Limitation on Indemnification. Anything to the contrary in
this Article IX notwithstanding, in no event shall the aggregate
liability of Sellers (collectively) under this Article IX exceed
the aggregate amounts received by Sellers (collectively) for the
purchase of their Shares pursuant to this Agreement.
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 Sellers will maintain in
confidence, and will cause the directors, officers, employees,
agents, and advisors of Purchaser, Sellers and the Company to
maintain in confidence, any written, oral, or other information
obtained in confidence from another party or from Purchaser,
Sellers 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):
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if to Sellers:
to the address set forth below each Seller's name on
Schedule A hereto;
if to Purchaser:
Solico International, Inc.
000 Xxxx
Xxx Xxxxxxx, Xxxxx 00000
Attn: X. Xxxxxxx Xxxxxx
with a copy (which shall not constitute notice) to:
Xxxxxxx & Xxxxx L.L.P.
000 Xxxxxxxx Xxxxxx
Xxxxxx, Xxxxx 00000-0000
Attn: Xxxxxxx Xxxxxxx
Telecopy: (000) 000-0000
10.5 Governing Law; Jurisdiction; Service of Process. This
Agreement shall be deemed to have been made in, and shall be
construed in accordance with the laws of the State of Texas,
U.S.A. and its validity, construction, interpretation and legal
effect shall be governed by the laws of the State of Texas,
U.S.A. applicable to contracts entered into and performed
entirely therein. The Parties hereby agree that any dispute which
may arise between or among them in connection with this Agreement
shall be adjudicated before a court located in San Antonio,
Texas, and they hereby submit to the exclusive personal
jurisdiction of the courts of the State of Texas located in San
Antonio, Texas and of the federal district courts in or for
disputes arising in San Antonio, Texas with respect to any action
or legal Proceeding commenced by any Party. Each of the Parties
irrevocably waives, to the fullest extent permitted by law, any
objection which it may now or hereafter have to the laying of the
venue of any such Proceeding brought in such a court and any
claim that any such Proceeding brought in such a court has been
brought in an inconvenient forum. Each of the Parties hereby
consents to the service of process in any such action or legal
Proceeding on any party anywhere in the world.
10.6 Further Assurance. The Parties agree (a) to furnish upon
request to each other such further information, (b) to execute
and deliver to each other such other documents, and (c) to do
such other acts and things, all as the other Party may reasonably
request for the purpose of carrying out the intent of this
Agreement and the documents referred to in this Agreement.
10.7 Waiver. Except to the extent otherwise specified in this
Agreement, the rights and remedies of the Parties hereto are
cumulative and not alternative. Neither the failure nor any delay
by any Party in exercising any right, power, or privilege under
this Agreement or the documents referred to in this Agreement
will operate as a waiver of such right, power, or privilege, and
no single or partial exercise of any such right, power, or
privilege will preclude any other or further exercise of such
right, power, or privilege or the exercise of any other right,
power, or privilege. To the maximum extent 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
-16-
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 (including,
without limitation, the letter agreement dated as of August 1,
2003) and constitutes (along with the other Transaction
Documents) a complete and exclusive statement of the terms of the
agreement between the Parties with respect to its subject matter.
This Agreement may not be amended except by a written agreement
executed by the Party to be charged with the amendment.
10.9 Schedules. The disclosures in the Seller Disclosure
Schedule and Purchaser Disclosure Schedule hereto, each of which
are incorporated into this Agreement by this reference and made a
part hereof, relate only to the representations and warranties in
the Section of the Agreement to which they expressly relate and
not to any other representation or warranty in this Agreement.
Sellers 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 First
Closing Date and any subsequent Option Closing Date to reflect
information that came into existence after the Effective Date and
that would have been required to be disclosed on such schedules
or reflected in such representations or warranties if such
information was in existence as of the Effective Date; it being
understood that prior to the First 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 Purchaser. 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.
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IN WITNESS WHEREOF, the parties have executed and delivered
this Agreement as of the date first written above.
SOLICO INTERNATIONAL, INC.,
a Texas corporation
By: /s/ X. XXXXXXX XXXXXX
-----------------------------
Name: X. Xxxxxxx Sparks
---------------------------
Title: President
--------------------------
/s/ XXXXX XXXXXXXX
--------------------------------
Xxxxx Xxxxxxxx
/s/ XXX XXXXXXXX
--------------------------------
Xxx Xxxxxxxx
XXXXXXXX PARTNERS
By: /s/ XXXX X. XXXXXX
-----------------------------
Name: Xxxx X. Xxxxxx
---------------------------
Title: Managing Partner
--------------------------
/s/ XXXX X. XXXXXX
--------------------------------
Xxxx Xxxxxx
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Schedule A
Seller First Closing Second Closing Option
----------------- --------------------- ------------------- ---------------------
Shares Price Shares Price Shares Price
--------- ---------- ------- ---------- ------- -----------
Xxxxx Xxxxxxxx 53,973 $107,946 53,973 $121,439.25 53,973 $148,425.75
______________
______________
Xxx Xxxxxxxx 66,750 $133,500 66,750 $150,187.50 66,750 $183,562.50
______________
______________
Xxxxxxxx Partners 38,750 $77,500 38,750 $ 87,187.50 38,750 $106,562.50
______________
______________
Xxxx Xxxxxx 10,721 $21,442 10,721 $ 24,122.25 10,721 $ 29,482.75
______________
______________
--------- --------- ------- ----------- ------- ------------
TOTAL 170,194 $340,388 170,194 $382,936.50 170,194 $468,033.50
========= ========= ======= =========== ======= ============
