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EXHIBIT B
STOCK PURCHASE AGREEMENT
This Stock Purchase Agreement (the "Agreement") is made and entered into
as of July 11, 1997 (the "Effective Date") by and among ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
("▇▇▇▇▇▇▇▇"), ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, each of whom are residents of the State of
Texas, ▇▇▇▇▇▇▇▇/▇▇▇▇ Family Limited Partnership, a Texas limited partnership
("S/MLP" and together with ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, the "Sellers" and
each a "Seller"), and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, a resident of the State of Texas
("▇▇▇▇▇▇▇") and Chamois Family Partnership, Ltd., a Texas limited partnership
("Chamois") (▇▇▇▇▇▇▇ together with Chamois, the "Purchasers" and each a
"Purchaser").
Purchasers desire to purchase from Sellers, and Sellers desire to sell
to Purchasers, 142,000 shares of Common Stock of TCC Industries, Inc. (the
"Company"), $1.00 par value per share (the "Stock"), with each Seller selling
the number of shares of Stock owned by such Seller as set forth opposite such
Seller's name on Annex 1 attached hereto, on the terms and conditions described
below. In order to effectuate such purchase and sale, Purchasers and Sellers
have entered into this Agreement.
1. Purchase and Sale. At the closing of the transactions
contemplated by this Agreement (the "Closing"), Sellers shall sell to
Purchasers, and Purchasers shall purchase from Sellers, 142,000 shares of Stock
(the "Purchased Shares"), free and clear of any liens, restrictions, adverse
claims or other encumbrances of any nature whatsoever ("Liens"), except for
restrictions on transfer described in the restrictive legends set forth on the
certificates representing the Purchased Shares ("Permitted Restrictions").
Each Purchaser shall purchase one-half of the Purchased Shares (i.e., 71,000
shares of Stock), at the purchase price of $2.26 per share, for a total of
$160,460.00 that each Purchaser shall pay to Sellers and an aggregate purchase
price for all the Purchased Shares (the "Purchase Price") of $320,920.00. The
Purchase Price shall be paid by Purchasers to Sellers on the date of the
Closing by Purchasers' delivery (i) to Sellers of immediately available funds
by federal funds wire transfers in the amounts allocated among Sellers and to
the accounts designated by Sellers in accordance with the wiring instructions
set forth on Annex 2 attached hereto and (ii) on behalf of Sellers, to
Purchasers' respective securities brokers of immediately available funds in the
aggregate amount of $22,600, which brokers will arrange a "trade done away"
transaction with ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co. on the Closing Date for an aggregate of
10,000 of the Purchased Shares held by ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co. as custodian or in
street name as indicated on Annex 1, at $2.26 per share, with settlement to be
made the regular way within three trading days following execution of the order
on the Closing Date, for credit to the account of Sellers with ▇▇▇▇▇▇▇ ▇▇▇▇▇ &
Co. as specified in the letter from ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, dated July 10, 1997,
set forth as Annex 3 attached hereto.
2. Closing; Deliveries.
2A. Conditions to Closing. (i) Sellers' Conditions to
Closing. The obligation of Sellers to sell the Purchased Shares to Purchasers
is subject to the satisfaction as of the date of the Closing (the "Closing
Date") of each of the following: (a) all representations and warranties made by
Purchasers herein shall be true and correct on the Closing Date, and (b)
Purchasers shall have performed, satisfied and complied with all covenants
required to be performed, satisfied or complied with by
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Purchasers hereunder, including, without limitation, making all the deliveries
to be made by it under paragraph 2D below in accordance with the terms hereof.
(ii) Purchasers' Conditions to Closing. The obligation of
Purchasers to purchase the Purchased Shares from Sellers is subject to the
satisfaction as of the Closing Date of each of the following: (a) all
representations and warranties made by Sellers herein shall be true and correct
on the Closing Date and (b) Sellers shall have performed, satisfied and
complied with all covenants required to be performed, satisfied or complied
with by Sellers hereunder, including, without limitation, making all the
deliveries to be made by it under paragraph 2C below in accordance with the
terms hereof.
2B. Closing. The Closing shall occur on the Effective Date at
the offices of ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, P.C. in Austin, Texas.
2C. Sellers' Deliveries. At the Closing, Sellers shall
deliver or cause to be delivered to Purchasers (i) certificates representing
the Purchased Shares accompanied by stock powers of attorney duly executed in
blank (in form satisfactory to Purchasers) with signatures guaranteed, together
with such other documents and instruments as are required or appropriate in
order to transfer the Purchased Shares to Purchasers, free and clear of any
Liens, other than Permitted Restrictions, and (ii) an executed Mutual Release
and Waiver referenced in paragraph 2E below.
2D. Purchasers' Deliveries. At the Closing, Purchasers shall
(i) deliver the Purchase Price funds to Sellers in accordance with paragraph 1
above and (ii) execute and deliver the Mutual Release and Waiver referenced in
paragraph 2E below.
2E. Simultaneous Transactions. Purchasers and Sellers agree
that simultaneous with the consummation of the Closing of the purchase and sale
of the Purchased Shares on the Effective Date, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, a
resident of the State of Texas ("Thomajan") and ▇▇▇▇▇▇▇▇ shall execute a Mutual
Release and Waiver between ▇▇▇▇▇▇▇ and Thomajan, on the one hand, and ▇▇▇▇▇▇▇▇,
on the other, and that ▇▇▇▇▇▇▇▇ shall, in writing, resign as an employee of the
Company and from all offices with the Company, including without limitation as
President and a Director of the Company, and as an employee, officer and
director of all of the subsidiaries and affiliates of the Company upon payment
to him by the Company of a severance payment in cash in the amount of
$288,481.92, upon the terms and conditions set forth in that certain Agreement
entered into as of July 2, 1997 by and between ▇▇▇▇▇▇▇▇ and the Company.
3. Representations and Warranties of Purchasers. Each
Purchaser, severally and not jointly, represents and warrants to Sellers as
follows:
(i) There are no actions, suits, proceedings or
judgments pending or, to the best of his or its knowledge, threatened against
or affecting such Purchaser that will prevent the consummation of the
transactions contemplated by this Agreement;
(ii) Such Purchaser is not the subject of any pending
or, to the best of his or its knowledge, threatened bankruptcy or insolvency
proceeding, whether voluntary or involuntary;
(iii) Purchaser's execution, delivery and performance of
this Agreement and
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any and all other documents to which such Purchaser is a party that are
necessary to consummate the transactions described herein (this Agreement and
such other documents collectively, the "Purchaser's Closing Agreements") will
not conflict with or result in any violation of or constitute a default under
any law, rule, regulation, agreement, instrument or obligation, or any
judgment, order or decree of any court or governmental body or agency, to which
such Purchaser is a party or to which or by which such Purchaser may be subject
or bound, and any consents or approvals to such Purchaser's purchase of the
Purchased Shares required to be obtained by such Purchaser under any of the
foregoing have been obtained; and no further action or approval is required in
order to constitute such Purchaser's Closing Agreements as the legal, valid,
binding and enforceable obligations of such Purchaser;
(iv) Such Purchaser has full power and authority to
enter into and perform his or its obligations under each of the Purchaser's
Closing Agreements; and each of such Purchaser's Closing Agreements is the
legal, valid and binding obligation of that Purchaser, enforceable against such
Purchaser in accordance with its terms;
(v) Each Purchaser is acquiring the Purchased Shares
for his or its own account as an investment and without an intent to distribute
the Purchased Shares;
(vi) Each Purchaser acknowledges that the Purchased
Shares have not been registered under the Securities Act of 1933, as amended,
or any state securities laws, and may not be resold or transferred by
Purchasers without appropriate registration or the availability of an exemption
from such requirements;
(vii) Each Purchaser has had an opportunity to make
inquiries concerning the Company and all matters relevant to an investment in
the Purchased Shares and has been given the opportunity to ask questions of,
and receive answers from, the Company concerning the Company, its business, the
Purchased Shares, the risks associated with an investment in the Purchased
Shares, and such additional information as such Purchaser deems necessary to
evaluate an investment in the Purchased Shares;
(viii) Each Purchaser has such knowledge and experience in
business and financial matters in general as to be capable of evaluating the
Company, its proposed activities, and the risks and merits of an investment in
the Purchased Shares;
(ix) Each Purchaser understands that no federal or state
agency has made any finding or determination as to the fairness of the offering
of the Purchased Shares nor any recommendation or endorsement of the Purchased
Shares; and
(x) Chamois is a limited partnership duly organized and
validly existing under the laws of the State of Texas (this representation is
made only by Chamois and not ▇▇▇▇▇▇▇).
4. Representations and Warranties of Sellers. Each Seller,
severally and not jointly, represents and warrants to Purchasers as follows:
(i) S/MLP is a limited partnership duly organized and
validly existing under the laws of the State of Texas;
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(ii) There are no actions, suits, proceedings or
judgments pending or, to the best of their knowledge, threatened against or
affecting Sellers that will prevent the consummation of the transactions
contemplated by this Agreement;
(iii) Sellers are not the subject of any pending or, to
the best of their knowledge, threatened bankruptcy or insolvency proceeding,
whether voluntary or involuntary;
(iv) Sellers' execution, delivery and performance of
this Agreement and any and all other documents to which Sellers are parties
which are necessary to consummate the transactions described herein (this
Agreement and such other documents collectively, the "Sellers Closing
Agreements") will not conflict with or result in any violation of or constitute
a default under any law, rule, regulation, agreement, instrument or obligation,
or any judgment, order or decree of any court or governmental body or agency,
to which Sellers are parties or to which or by which Sellers may be subject or
bound, and any consents or approvals to Sellers' sale of the Purchased Shares
required to be obtained by Sellers under any of the foregoing have been
obtained by Sellers; and no further action or approval is required in order to
constitute the Sellers Closing Agreements as the legal, valid, binding and
enforceable obligation of Sellers;
(v) Sellers are the sole legal and beneficial owner of
the Purchased Shares in the amounts set forth on Annex 1 and the Purchased
Shares are free and clear of all Liens, other than Permitted Restrictions;
(vi) Sellers have full power and authority to enter into
and perform their obligations under each of the Sellers Closing Agreements; and
each of the Sellers Closing Agreements is the legal, valid and binding
obligation of Sellers, enforceable against Sellers in accordance with its
terms; and
(vii) The Purchased Shares constitute Sellers' only
equity interest in the Company or any of its subsidiaries or affiliates, and
upon consummation of the purchase of the Purchased Shares by Purchasers,
Sellers will not (x) own any interest in any form of capital stock of the
Company or any of its subsidiaries or affiliates, or in any instrument or right
exchangeable for or convertible into, any form of capital stock of the Company
or any of its subsidiaries of affiliates, or (y) own any right (vested or non-
vested) to, at any time, acquire any form of capital stock of the Company or
any of its subsidiaries or affiliates, or any instrument or right exchangeable
for or convertible into, any form of capital stock of the Company or any of its
subsidiaries or affiliates.
5. Indemnification.
5A. By Purchasers. Each Purchaser shall indemnify, save and
hold harmless Sellers, from and against any and all costs, losses, liabilities,
damages, lawsuits, deficiencies, claims and expenses (whether or not arising
out of third-party claims), including, without limitation, interest, penalties,
reasonable attorneys' fees and all amounts paid in investigation, defense or
settlement of any of the foregoing, (herein, the "Damages") incurred in
connection with or arising out of or resulting from any breach of any covenant
or warranty, or the inaccuracy of any representation, made by such Purchaser in
this Agreement or in any other agreement or instrument executed or delivered by
such Purchaser in
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connection herewith.
5B. By Sellers. Each Seller shall indemnify and save and hold
harmless Purchasers from and against any and all Damages incurred in connection
with or arising out of or resulting from any breach of any covenant or
warranty, or the inaccuracy of any representation, made by such Seller in this
Agreement or in any other agreement or instrument executed or delivered by such
Seller in connection herewith.
5C. Defense of Claims. If any lawsuit or enforcement action
is filed against any party entitled to the benefit of indemnity hereunder, or
if any such party receives notice of, or becomes aware of a condition or event
which otherwise entitles or may entitle such party to the benefit of any
indemnity hereunder (the "indemnified party"), written notice thereof shall be
given to the indemnifying party as promptly as practicable (and in any event
within five days after receipt of notice or service of a citation or summons);
provided, that the failure of any indemnified party to give timely notice shall
not affect rights to indemnification hereunder except to the extent that the
indemnifying party demonstrates damage caused by such failure. After such
notice, if the indemnifying party shall acknowledge in writing to the
indemnified party that the indemnifying party shall be obligated under the
terms of its indemnity hereunder in connection with such condition, event,
claim, lawsuit or action, then the indemnifying party shall be entitled, if it
so elects, to take control of the investigation, defense, settlement,
negotiation, or other resolution of such condition, event, claim, lawsuit or
action and to employ and engage attorneys of its own choice to handle and
defend the same, at the indemnifying party's cost, risk, and expense; and such
indemnified party shall cooperate in all reasonable respects with the
indemnifying party and such attorneys in the investigation, settlement,
negotiation, resolution or trial and defense of such condition, event, lawsuit
or action and any appeal arising therefrom; provided, that the indemnified
party may, at its own cost, participate in the investigation, settlement,
negotiation, resolution, or trial and defense of any lawsuit or action and any
appeal arising therefrom; and provided, further, that neither the indemnifying
party nor the indemnified party will settle, compromise or make any disposition
of any claim under this paragraph 5C which would or may result in liability to
the indemnified party or the indemnifying party, respectively, (i) without the
written consent of the indemnified party or the indemnifying party, as the
case may be, and (ii) without such settlement, compromise or other disposition
providing for a complete and final release of the indemnified party or the
indemnifying party, as the case may be, from and against any and all Damages
arising out of or relating to such claim.
6. Miscellaneous.
6A. Remedies. Any party having any rights under any provision
of this Agreement will be entitled to enforce such rights specifically, to
recover damages by reason of any breach of any provision of this Agreement and
to exercise all other rights granted by law or at equity.
6B. Survival of Representations and Warranties. All
representations and warranties contained herein or made in writing by any party
in connection herewith will survive the execution and delivery of this
Agreement, regardless of any investigation made by any party or on its behalf.
6C. Counterparts. This Agreement may be executed
simultaneously in two or more
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counterparts, any one of which need not contain the signatures of more than one
party, but all such counterparts taken together will constitute one and the
same Agreement.
6D. Governing Law and Venue. All questions concerning the
construction, validity and interpretation of this Agreement and the annexes
hereto will be governed by the internal law, and not the law of conflicts, of
the State of Texas. All matters litigated by, among, or between any of the
parties that involve this Agreement (whether in federal or state court) shall
be brought only in ▇▇▇▇▇▇, ▇▇▇▇▇▇ County, Texas.
6E. Notices. All notices, demands or other communications to
be given or delivered under or by reason of the provisions of this Agreement
will be in writing and will be deemed to have been given either when delivered
personally (including delivery by an express delivery service or by facsimile
transmission during the recipient's normal business hours) or five business
days after having been mailed by certified or registered mail, return receipt
requested and postage prepaid, to the recipient. Such notices, demands and
other communications will be sent to Sellers or to Purchasers at the addresses
set forth below:
to Purchasers at: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
and
Chamois Family Partnership, Ltd.
c/o ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, General Partner
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy (which shall not constitute notice to Purchasers) to:
Akin, Gump, Strauss, ▇▇▇▇▇ & ▇▇▇▇, L.L.P.
1900 Frost Bank Plaza
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
to Sellers in care of: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
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with a copy (which shall not constitute notice to Sellers) to:
▇▇▇▇▇▇ & ▇▇▇▇▇, P.C.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇ ▇▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
or to such other address or to the attention of such other person as the
recipient party has specified by prior written notice to the sending party.
6F. Complete Agreement. This Agreement, together with the
documents and agreements referenced herein or attached as annexes hereto,
constitutes the entire agreement among the parties hereto with respect to the
subject matter hereof.
6G. Benefit of Agreement. Purchasers may not transfer or
assign any of their rights or obligations under this Agreement without the
prior written consent of Sellers. Sellers may not transfer or assign their
rights or obligations under this Agreement without Purchasers' prior written
consent. This Agreement shall be binding upon and inure to the benefit of the
parties hereto and their respective heirs and successors and permitted assigns.
6H. Litigation Expense. In the event of litigation arising
out of or relating to claims under this Agreement, a prevailing party shall be
entitled to recover from a losing party all of its costs and expenses incurred
in connection with such litigation, including, without limitation, reasonable
fees and expenses of attorneys.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK.]
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
Effective Date.
PURCHASERS:
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Chamois Family Partnership, Ltd.
By ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Its General Partner
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
------------------------------------
SELLERS:
/s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
------------------------------------
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇/▇▇▇▇ Family Limited
Partnership
By ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Its General Partner
/s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
------------------------------------
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SPOUSAL CONSENT
Each of the undersigned, as the spouse of a Seller, hereunto subscribes
his/her name in evidence of his/her agreement and consent to the disposition
made of any interest he/she has or may have, including any community property
interest, in the capital stock of TCC Industries, Inc., and its subsidiaries
and affiliates, referred to in the foregoing Agreement, and to all other
provisions of such Agreement.
/s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
------------------------------------
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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ANNEX 1
COMMON STOCK OWNED BY SELLERS
Seller No. Shares
------ ----------
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Certificate No. S 20391 17,000
Certificate No. S 20561 1,000
Certificate No. S 20204 2,000
Certificate No. S 19506 6,000
Certificate No. S 1108 300
Certificate No. S 995 200
Certificate No. S 16447 2,500
------
29,000
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, held by ▇▇▇▇▇▇▇ ▇▇▇▇▇ as
Custodian of Individual Retirement Account 7,000
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, held by ▇▇▇▇▇▇▇ ▇▇▇▇▇ as
Custodian of Individual Retirement Account 1,000
▇▇▇▇▇▇▇▇ ▇. and ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇,
Tenants in Common
Certificate No. S 934 1,000
Held by ▇▇▇▇▇▇▇ ▇▇▇▇▇ in street name 2,000 3,000
-----
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ as Custodian for
Lauren ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Under the
Texas Uniform Gifts to Minors Act
Certificate No. S 19737 2,000
▇▇▇▇▇▇▇▇/▇▇▇▇ Family Limited Partnership
Certificate No. S 20203 31,000
Certificate No. S 20394 68,000
Certificate No. S 20531 1,000 100,000
------ -------
Total Shares 142,000
=======
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