Rheochem Joint Venture Documents

STOCK PURCHASE AGREEMENT


Agreement entered into as of June 8, 1994, by and between ABI Corporation, a Delaware corporation (the "BUYER") and Concorde Industries, Inc., a Colorado corporation (the "SELLER"). The Buyer and the Seller are sometimes hereinafter referred to collectively herein as the "PARTIES".


The Seller owns Five Hundred and Fifty (550) shares of the issued and outstanding Class A common stock of Rheochem Manufacturing Co., Inc., a Colorado corporation (the "Target"), which shares represent fifty percent (50%) of the total outstanding shares of all classes of Target's capital stock.


This Agreement contemplates a transaction in which the Buyer will purchase from the Seller, and the Seller will sell to the Buyer, all Five Hundred and Fifty shares of the outstanding Class A common stock of the Target owned by Seller in return for cash.


Now, therefore, in consideration of the premises and the mutual promises herein made, and in consideration of the representations, warranties, and covenants herein contained, the Parties agree as follows.


1. DEFINITIONS.


"ADVERSE CONSEQUENCES" means all actions, suits, proceedings, hearings, investigations, charges, complaints, claims, demands, injunctions, judgments, orders, decrees, rulings, damages, dues, penalties, fines, costs, amounts paid in settlement, Liabilities, obligations, Taxes, liens, losses, expenses, and fees, including court costs and attorney's fees and expenses.


"AFFILIATE" has the meaning set forth in Rule 12b-2 of the regulations promulgated under the Securities Exchange Act.


"AFFILIATED GROUP" means any affiliated group within the meaning of Code Sec. 1504 [or any similar group defined under a similar provision of state, local or foreign law].


"APPLICABLE RATE" means the corporate base rate of interest announced from time to time by Integra Bank.


"BASIS" means any past or present fact, situation, circumstance, status, condition, activity, practice, plan, occurrence, event, incident, action, failure to act, or transaction that forms or could form the basis for any specified consequence.


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"BUYER" has the meaning set forth in the preface above.


"CLOSING" has the meaning set forth in Section 2(c) below.


"CLOSING DATE" has the meaning set forth in Section 2(c) below.


"CODE" means the Internal Revenue Code of 1986, as amended.


"CONFIDENTIAL INFORMATION" means any information concerning the businesses and affairs of the Target that is not already generally available to the public or does not hereafter become generally available to the public without breach of this Agreement by Seller or an Affiliate of Seller.


"CONTROLLED GROUP OF CORPORATIONS" has the meaning set forth in Code Sec. 1563.


"DISCLOSURE SCHEDULE" has the meaning set forth in Section 4 below.


"EMPLOYEE BENEFIT PLAN" means any (a) nonqualified deferred compensation or retirement plan or arrangement which is an Employee Pension Benefit Plan, (b) qualified defined contribution retirement plan or arrangement which is an Employee Pension Benefit Plan, (c) qualified defined benefit retirement plan or arrangement which is an Employee Pension Benefit Plan (including any Multiemployer Plan), or (d) Employee Welfare Benefit Plan or material fringe benefit plan or program.


"EMPLOYEE PENSION BENEFIT PLAN" has the meaning set forth in ERISA Sec. 3(2).


"EMPLOYEE WELFARE BENEFIT PLAN" has the meaning set forth in ERISA Sec. 3(1).


"ENVIRONMENTAL, HEALTH, AND SAFETY LAWS" means the Comprehensive Environmental Response, Compensation and Liability Act of 1980, the Resource Conservation and Recovery Act of 1976, and the Occupational Safety and Health Act of 1970, each as amended, together with all other laws (including rules, regulations, codes, plans, injunctions, judgments, orders, decrees, rulings, and charges thereunder to the extent they have statutory force) of federal, state, local, and foreign governments (and all agencies thereof) concerning pollution or protection of the environment, public health and safety, or employee health and safety, including laws relating to emissions, discharges, releases, or threatened releases of pollutants, contaminants, or chemical, industrial, hazardous, or toxic materials or wastes into ambient air, surface water, ground water, or lands or otherwise relating to the manufacture, processing, distribution,


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use, treatment, storage, disposal, transport, or handling of pollutants, contaminants, or chemical, industrial, hazardous, or toxic materials or wastes as applicable to the properties of Target.


"ERISA" means the Employer Retirement Income Security Act of 1974, as amended.


"EXTREMELY HAZARDOUS SUBSTANCE" has the meaning set forth in Sec. 302 of the Emergency Planning and Community Right-to-Know Act of 1986, as amended.


"FIDUCIARY" has the meaning set forth in ERISA Sec. 3 (21) .


"FINANCIAL STATEMENT" has the meaning set forth in Section 4 (g) below.


"GAAP" means United States generally accepted accounting principles as in effect from time to time.


"INDEMNIFIED PARTY" has the meaning set forth in Section 8(d) below.


"INDEMNIFYING PARTY" has the meaning set forth in Section 8(d) below.


"INTELLECTUAL PROPERTY" means (a) all inventions (whether patentable or unpatentable and whether or not reduced to practice), all improvements thereto, and all patents, patent applications, and patent disclosures, together will all reissuances, continuations, continuations-in-part, revisions, extensions, and reexaminations thereof, (b) all trademarks, service marks, trade dress, logos, trade names, and corporate names, together will all translations, adaptations, derivations, and combinations thereof and including all goodwill associated therewith, and all applications, registrations, and renewals in connection therewith, (c) all copyrightable works, all copyrights, and all applications, registrations, and renewals in connection therewith, (d) all mask works and all applications, registrations, and renewals in connection therewith, (e) all trade secrets and confidential business information (including ideas, research and development, know-how, formulas, compositions, manufacturing and production processes and techniques, technical data, designs, drawings, specifications, customer and supplier lists, pricing and cost information, and business and marketing plans and proposals), (f) all computer software (including data and related documentation), (g) all other proprietary rights, and (h) all copies and tangible embodiments thereof (in whatever form or medium).


"KNOWLEDGE" means actual knowledge after reasonable investigation.


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"LIABILITY" means any liability (whether known or unknown, whether asserted or unasserted, whether absolute or contingent, whether accrued or unaccrued, whether liquidated or unliquidated, and whether due or to become due), including any liability for Taxes.


"MOST RECENT BALANCE SHEET" means the balance sheet contained within the Most Recent Financial Statements.


"MOST RECENT FINANCIAL STATEMENTS" has the meaning set forth in Section 4(g) below.


"MOST RECENT FISCAL MONTH END" has the meaning set forth in Section 4 (g) below.


"MOST RECENT FISCAL YEAR END" has the meaning set forth in Section 4 (g) below.


"MULTIEMPLOYER PLAN" has the meaning set forth in ERISA Sec. 3(37).


"ORDINARY COURSE OF BUSINESS" means the ordinary course of business consistent with past custom and practice (including with respect to quantity and frequency).


"OTHER BUYER OBLIGATIONS" means any contractual obligations of Buyer, an Affiliate of the Buyer, or the Target to provide quantifiable economic benefits to the Seller or an Affiliate of the Seller, whether pursuant to this Agreement or other written contracts to be executed pursuant to this Agreement between the Buyer, an Affiliate of the Buyer, or the Target on one hand, and the Seller or an Affiliate of the Seller on the other hand.


"PARTY OR PARTIES" has the meaning set forth in the preface above.


"PBGC" means the Pension Benefit Guaranty Corporation.


"PERSON" means an individual, a partnership, a corporation, an association, a joint stock company, a trust, a joint venture, an unincorporated organization, or a governmental entity (or any department, agency, or political subdivision thereof).


"PROHIBITED TRANSACTION" has the meaning set forth in ERISA Sec. 406 and Code SEC. 4975.


"PURCHASE PRICE" has the meaning set forth in Section 2 (b) below.


"REPORTABLE EVENT" has the meaning set forth in ERISA Sec. 4043.


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"SECURITIES ACT" means the Securities Act of 1933, as amended.


"SECURITIES EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended.


"SECURITY INTEREST" means any mortgage, pledge, lien, encumbrance, charge, or other security interest, OTHER THAN (a) mechanic's, materialmen's, and similar liens, (b) liens for Taxes not yet due and payable, (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.


"SELLER" has the meaning set forth in the preface above.


"SELLER'S TARGET SHARES" means all of the Target Shares owned by the Seller as of the date of this Agreement as identified on the Disclosure Schedule.


"SUBSIDIARY" means any corporation with respect to which a specified Person (or Subsidiary thereof) owns a majority of the common stock or has the power to vote or direct the voting of sufficient securities to elect a majority of the directors.


"SURVEY" has the meaning set forth in Section 5 (i) below.


"TARGET" has the meaning set forth in the preface above.


"TARGET SHARE" means any share of any class of the Common Stock without par value of the Target. "Target Shares" means any of the shares of any class of the Common Stock without par value of the Target.


"TAX" means any federal, state, local, or foreign income, gross receipts, license, payroll, employment, excise, severance, stamp, occupation, premium, windfall profits, environmental (including taxes under Code Sec. 59A), customs duties, capital stock, franchise, profits, withholding, social security (or similar), unemployment, disability, real property, personal property, sales, use, transfer, registration, value added, alternative or add-on minimum, estimated, or other tax of any kind whatsoever, including any interest, penalty, or addition thereto, whether disputed or not.


"TAX RETURN" means any return, declaration, report, claim for refund, or information return or statement relating to Taxes, including any schedule or attachment thereto, and including any amendment thereof.


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"THIRD PARTY CLAIM" has the meaning set forth in Section 8 (d) below.


2. PURCHASE AND SALE OF SELLER'S TARGET SHARES.


(a) BASIC TRANSACTION. On and subject to the terms and conditions of this Agreement, the Buyer agrees to purchase from the Seller, and the Seller agrees to sell to the Buyer, all of its Seller's Target Shares for the consideration specified below in Section 2(b).


(b) PURCHASE PRICE. The Buyer agrees to pay to the Seller at the Closing $2,150,000 (the "PURCHASE PRICE") by delivery of cash in an amount equal to the Purchase Price payable by wire transfer or delivery of other immediately available funds.


(c) THE CLOSING. The closing of the transactions contemplated by this Agreement (the "CLOSING") shall be accomplished by use of an expedited mail service such as Federal Express or other overnight courier service on the third business day following the satisfaction or waiver of all conditions to the obligations of the Parties to consummate the transactions contemplated hereby (other than conditions with respect to actions the respective Parties will take at the Closing itself) or such other date as the Buyer and Seller may mutually determine (the "CLOSING DATE"); provided, however, that the Closing Date shall be no later than June 30, 1994.


(d) DELIVERIES AT THE CLOSING. At the Closing, (i) the Seller will deliver to the Buyer the various certificates, instruments, and documents referred to in Section 7(a) below, (ii) the Buyer will deliver to the Seller the various certificates, instruments, and documents referred to in Section 7(b) below, (iii) the Seller will deliver to the Buyer stock certificates representing all of the Seller's Target Shares, endorsed in blank or accompanied by duly executed assignment documents, and (iv) the Buyer will deliver to the Seller the consideration specified in Section 2(b) above.


3. REPRESENTATIONS AND WARRANTIES CONCERNING THE TRANSACTION.


(a) REPRESENTATIONS AND WARRANTIES OF THE SELLER. The Seller represents
and warrants to the Buyer that the statements contained in this Section
3(a) are correct and complete as of the date of this Agreement and will be
correct and complete as of the Closing Date (as though made then and as
though the Closing Date were substituted for the date of this Agreement
throughout this Section 3(a)) with respect to itself.


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(i) ORGANIZATION. The Seller is duly organized, validly
existing, and in good standing under the laws of the jurisdiction of its
incorporation.


(ii) AUTHORIZATION OF TRANSACTION. The Seller has full corporate
power and authority to execute and deliver this Agreement and to perform
its obligations hereunder. This Agreement constitutes the valid and
legally binding obligation of the Seller, enforceable in accordance with
its terms and conditions. The Seller does not need to give any notice to,
make any filing with, or obtain any authorization, consent, or approval of
any government or governmental agency in order to consummate the
transactions contemplated by this Agreement.


(iii) NONCONTRAVENTION. Except as expressly described in Section
4(e) of the Disclosure Schedule, neither the execution and the delivery of
this Agreement, nor the consummation of the transactions contemplated
hereby, will (A) violate any constitution, statute, regulation, rule,
injunction, judgment, order, decree, ruling, charge, or other restriction
of any government, governmental agency, or court to which the Seller is
subject or any provision of the Seller's charter or bylaws, or (B) conflict
with, result in a breach of, constitute a default under, result in the
acceleration of, create in any party the right to accelerate, terminate,
modify, or cancel, or require any notice under any agreement, contract,
lease, license, instrument, or other arrangement to which the Seller is a
party or by which it is bound or to which any of its assets are subject.


(iv) BROKERS' FEES. The Seller does not have any Liability or
obligation to pay any fees or commissions to any broker, finder, or agent
with respect to the transactions contemplated by this Agreement for which
the Buyer could become liable or obligated.


(v) SELLER'S TARGET SHARES. The Seller holds of record and owns
beneficially the number of Target Shares set forth next its name in Section
4(b) of the Disclosure Schedule, free and clear of any restrictions on
transfer (other than any restrictions under the Securities Act and state
securities laws), Taxes, Security Interests, options, warrants, purchase
rights, contracts, commitments, equities, claims, and demands. The Seller
is not a party to any option, warranty, purchase right, or other contract
or commitment that could require the Seller to sell, transfer, or otherwise
dispose of any capital stock of the Target (other than this Agreement).
The Seller is not a party to any


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voting trust, proxy, or other agreement or understanding with respect to
the voting of any capital stock of the Target.


(b) REPRESENTATIONS AND WARRANTIES OF THE BUYER. The Buyer represents and warrants to the Seller that the statements contained in this Section 3(b) are correct and complete as of the date of this Agreement and will be correct and complete as of the Closing Date (as though made then and as though the Closing Date were substituted for the date of this Agreement throughout this Section 3(b)), except as set forth in Annex I attached hereto.


(i) ORGANIZATION OF THE BUYER. The Buyer is a corporation duly
organized, validly existing, and in good standing under the laws of the
jurisdiction of its incorporation.


(ii) AUTHORIZATION OF TRANSACTION. The Buyer has full corporate
power and authority to execute and deliver this Agreement and to perform
its obligations hereunder. This Agreement constitutes the valid and
legally binding obligation of the Buyer, enforceable in accordance with its
terms and conditions. Except as set forth in the following sentence, the
Buyer need not give any notice to, make any filing with, or obtain any
authorization, consent, or approval of any government or governmental
agency in order to consummate the transactions contemplated by this
Agreement. The Buyer shall make all filings with the U.S. Department of
Commerce, Bureau of Economic Analysis, on Form BE-13 or otherwise, which
may be required to be filed before Closing.


(iii) NONCONTRAVENTION. Neither the execution and the delivery of
this Agreement, nor the consummation of the transactions contemplated
hereby, will (A) violate any constitution, statute, regulation, rule,
injunction, judgment, order, decree, ruling, charge, or other restriction
of any government, governmental agency, or court to which the Buyer is
subject or any provision of its charter or bylaws or (B) conflict with,
result in a breach of, constitute a default under, result in the
acceleration of, create in any party the right to accelerate, terminate,
modify, or cancel, or require any notice under any agreement, contract,
lease, license, instrument, or other arrangement to which the Buyer is a
party or by which it is bound or to which any of its assets is subject.


(iv) BROKER'S FEES. The Buyer has no Liability or obligation to
pay any fees or commissions to any broker, finder, or agent with respect to
the transactions


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contemplated by this Agreement for which the Seller could become liable or
obligated.


(v) INVESTMENT. The Buyer understands that the Seller's Target
Shares have not been registered under the Securities Act, or any state
securities laws, in reliance upon exemptions. The exemption upon which
there is reliance under the Securities Act is for what may be called a
private placement. The Buyer is not acquiring the Seller's Target Shares
with a view to or for sale in connection with any distribution thereof
within the meaning of the Securities Act. With respect to the Securities
Act, the Buyer has had and continues to have (A) effective access to, and
the opportunity to examine, all books, records, files, financial
statements, financial reports, plans, sales data, cost data, copies of
contracts, licenses, and other instruments to which the Target is a party
or by which its properties or interests are affected, (B) the opportunity
to question, and to receive information from, the President and all other
officers of the Target and the independent certified public accountants of
the Target concerning the Target, and (C) the opportunity to obtain any and
all additional information necessary to verify the accuracy of the
information furnished to it or any other supplemental information which the
Buyer deems relevant to make an informed investment decision as to
acquisition of the Seller's Target Shares. The Buyer, its officers and
advisors, have sufficient knowledge and experience in business and
financial matters in general, and are capable of utilizing the information
available to them, to evaluate the risks involved in acquiring the Seller's
Target Shares. The Buyer is capable of hearing all the economic risks
involved in ownership of the Seller's Target Shares. The Buyer understands
that it must hear the economic risk of the investment for an indefinite
period because the Seller's Target Shares have not been registered under
the Securities Act and, therefore, are subject to restrictions upon
transfer such that they may not be sold or otherwise transferred unless
they are registered under the Securities Act or an exemption from such
registration is available. The Buyer shall not assign, sell or make any
other disposition of any shares in the Target in the absence of an
effective registration statement, qualification, or other authorization
relating thereto under the Securities Act, or an opinion of qualified
counsel reasonably satisfactory to the Target to the effect that such
registration, qualification or other authorization is not required in
connection with the proposed assignment, sale or other disposition. Any
certificates which are issued representing the Seller's Target Shares shall
be endorsed with a legend to this effect. Notwithstanding the foregoing,
the Seller expressly acknowledges and agrees that


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the provisions of this Section 3(b)(v) in no way diminish Buyer's reliance
upon the Seller's representations, warranties, covenants and
indemnification obligations contained in this Agreement as a material
inducement to acquire Seller's Target Shares.


4. REPRESENTATIONS AND WARRANTIES CONCERNING THE TARGET.


The Seller represents and warrants to the Buyer that the statements contained in this Section 4 are correct and complete as of the date of this Agreement and will be correct and complete as of the Closing Date (as though made then and as though the Closing Date were substituted for the date of this Agreement throughout this Section 4, except as set forth in the disclosure schedule delivered by the Seller to the Buyer on the date hereof and initialed by the Parties (the "DISCLOSURE SCHEDULE"). Nothing in the Disclosure Schedule shall be deemed adequate to disclose an exception to a representation or warranty made herein, however, unless the Disclosure Schedule identifies the exception with particularity and describes the relevant facts in detail. Without limiting the generality of the foregoing, the mere listing (or inclusion of a copy) of a document or other item shall not be deemed adequate to disclose an exception to a representation or warranty made herein (unless the representation or warranty has to do with the existence of the document or other item itself). The Disclosure Schedule will be arranged in paragraphs corresponding to the lettered and numbered paragraphs contained in this Section 4.


(a) ORGANIZATION, QUALIFICATION, AND CORPORATE POWER. The Target is a corporation duly organized, validly existing, and in good standing under the laws of the jurisdiction of its incorporation. The Target is duly authorized to conduct business and is in good standing under the laws of each jurisdiction where such qualification is required and where failure to qualify would have a material adverse effect on the Target. The Target has full corporate power and authority and all licenses, permits, and authorizations necessary to carry on the businesses in which it is engaged and in which it presently proposes to engage and to own and use the properties owned and used by it. Section 4(a) of the Disclosure Schedule lists the directors and officers of The Target. The Seller has delivered to the Buyer correct and complete copies of the charter, bylaws, minute books, stock certificate books, and stock record books of the Target (as amended to date). The minute books (containing the records of meetings of the stockholders, the board of directors, and any committees of the board of directors), the stock certificate books, and the stock record books of the Target are correct and complete. The Target is not in default under or in violation of any provision of its charter or bylaws.


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(b) CAPITALIZATION. The entire authorized capital stock of the Target consists of 50,000 shares of Class A common stock without par value, of which 550 shares are outstanding, and 50,000 shares of Class B common stock without par value, of which 550 shares are outstanding and no Target Shares are held in treasury. All of the issued and outstanding Target Shares have been duly authorized, are validly issued, fully paid, and nonassessable, and are held of record by the Seller and Rheochem as set forth in Section 4(b) of the Disclosure Schedule. There are no outstanding or authorized options, warrants, purchase rights, subscription rights, conversion rights, exchange rights, or other contracts or commitments that could require the Target to issue, sell, or otherwise cause to become outstanding any of its capital stock. There are no outstanding or authorized stock appreciation, phantom stock, profit participation, or similar rights with respect to the Target. There are no voting trusts, proxies, or other agreements or understandings with respect to the voting of the capital stock of the Target.


(c) NONCONTRAVENTION. Except as expressly described in Section 4(e) of the Disclosure Schedule, neither the execution and the delivery of this Agreement, nor the consummation of the transactions contemplated hereby, will (i) violate any constitution, statute, regulation, rule, injunction, judgment, order, decree, ruling, charge, or other restriction of any government, governmental agency, or court to which the Target is subject or any provision of the charter or bylaws of any of the Target or (ii) conflict with, result in a breach of, constitute a default under, result in the acceleration of, create in any party the right to accelerate, terminate, modify, or cancel, or require any notice under any agreement, contract, lease, license, instrument, or other arrangement to which the Target is a party or by which it is bound or to which any of its assets is subject (or result in the imposition of any Security Interest upon any of its assets). The Target does not need to give any notice to, make any filing with, or obtain any authorization, consent, or approval of any government or governmental agency in order for the Parties to consummate the transactions contemplated by this Agreement.


(d) BROKER'S FEES. The Target does not have any Liability or obligation to pay any fees or commissions to any broker, finder, or agency with respect to the transactions contemplated by this Agreement.


(e) TITLE TO ASSETS. Except as expressly described in Section 4 (e) of the Disclosure Schedule, the Target has good and marketable title to, or a valid leasehold ...