Stock Purchase Agreement - Spechem SA de CV and Texas Oil & Chemical Co. II Inc.
STOCK PURCHASE AGREEMENT
Stock Purchase Agreement, dated as of the 25th day of January 2000,
between Spechem, S.A. de. C.V. (referred to as the "Seller") and Texas Oil &
Chemical Co. II, Inc. (the "Purchaser").
RECITALS
A. Seller owns of record and beneficially 45,950,278 Shares with
a par value of $ One Peso, each, fully subscribed and paid for
of the issued and outstanding shares of common stock of
Productos Quimicos Coin, S.A. de. C.V. (the "Company").
B. The Purchaser desires to acquire from the Seller all of the
Shares referred to in recital A., above, which represent
approximately ninety two percent (92%) of the outstanding
capital stock of the Company, and the Seller desires to sell
and transfer such shares to the Purchaser, all upon the terms
and conditions hereinafter set forth.
To accomplish such purposes and in consideration of the Recitals and
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
For purposes of this Agreement, the following terms shall have the
following meanings:
"AFFILIATE" of a person or entity shall mean a person or entity controlling,
controlled by or under common control with such person or entity.
"AGREEMENT" shall mean this Stock Purchase Agreement, including all Exhibits
attached hereto.
"AUDITED FINANCIAL STATEMENTS" shall mean the audited financial statements of
the Company as at and for the fiscal year ended December 31, 1998, consisting of
a balance sheet, a statement of income and retained earnings and a statement of
changes in financial position together with the notes thereto and the opinion of
the Company's auditors thereon, a copy of which is attached hereto as Exhibit
"1".
"BENEFIT PLAN" shall have the meaning set forth in Section 4.39.2 hereof.
"BUSINESS" shall have the meaning set forth in Section 8.1.1 hereof.
"CLAIM" shall have the meaning set forth in Section 10.2 hereof.
"CLOSING" shall mean the consummation of the transactions contemplated by this
Agreement.
"CLOSING DATE" shall mean the date when all of the conditions set forth in
Section 3.3 hereof are met or completed, provided that, unless the parties
hereto otherwise agree, shall not be later than January 30, 2000.
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"CLOSING FINANCIAL STATEMENTS" means the non audited Financial Statements of
Corporation consisting of a balance sheet, statements of income and retained
earnings and the statement of change in financial position together with the
notes thereto as of October 31, 1999.
"COMPANY" shall mean Productos Quimicos Coin, S.A. de. C.V.
"ENVIRONMENTAL LAWS" shall mean all applicable federal, state, and municipal
laws, regulations and orders, rules, mandatory Mexican Standards ("Normas
Oficiales Mexicanas"), codes, licenses and permits issued by any governmental or
regulatory agency, court, administrative agency, or commission relating to the
environment.
"ESCROW AGREEMENT" shall mean the escrow agreement attached hereto as Exhibit
"2".
"DOLLARS" shall mean the lawful currency of the United States of America.
"GENERALLY ACCEPTED ACCOUNTING PRINCIPLES" shall mean the accounting principles
so described and promulgated by the Mexican Institute of Public Accountants
("Instituto Mexicano de Contadores Publicos, A.C."), Mexican GAAP as in effect
as of the issue date, which are applicable on the date as of which any
calculation made hereunder is to be effective or as at the date of any financial
statements referred to herein, as the case may be.
"GOVERNMENTAL CHARGES" means and includes all taxes, customs duties, rates,
levies, assessments, reassessments and other charges (including any and all
social security contributions and retirement fund contributions), together with
all penalties, interest and fines with respect thereto, payable to any federal,
state, municipal or other government or governmental agency, authority, board,
bureau or commission.
"HAZARDOUS MATERIALS" shall mean any material or substance that has been
designated by any governmental entity or applicable federal, state or municipal
law to be radioactive, toxic, hazardous, carcinogenic, mutagenic, or otherwise a
danger to health or the environment, including, without limitation, PCBs,
asbestos, petroleum, urea-formaldehyde, trichloroethylene, other aromatic and/or
halogenated hydrocarbons, pesticides, defoliants, lead, chromium, radon gas or
other radioactive substances, and all substances listed as Hazardous Materials
pursuant to any applicable Law.
"INDEMNIFIED PARTY" shall mean the party or parties entitled to indemnity under
Article X hereof.
"INDEMNIFYING PARTY" shall mean the party or parties obligated to indemnify the
Indemnified Party under Article X hereof.
"LAWS" shall mean all federal, state and municipal laws, regulations, orders or
decrees as well as all other administrative mandatory provisions of Mexico
issued by the governmental authorities of Mexico, regardless of their
description.
"LIEN" shall mean any and all liens, mortgages, pledges, conditional sale
agreements, security interests, restrictions, claims, options, encumbrances, or
rights of third parties of every kind and nature.
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"LICENSES" means all of the governmental licenses, certificates, registrations
and qualifications to do business (including operating its assets and
distributing its products) held by the Company.
"LOSSES" shall have the meaning set forth in Section 10.1.2 hereof
"PURCHASE PRICE" shall mean the sum of $2,475,000 Dollars;
"Purchaser" shall mean Texas Oil & Chemical Co. II, Inc..
"RELEASE" means any spill, leak, emission, discharge, abandonment, migration,
incineration, leach, dumping, emission, escape or other disposal
"SELLER" shall mean Spechem, S.A. de. C.V., a commercial company incorporated
under the laws of Mexico.
"SELLER SHARES" shall mean the shares described in Recital A., which represent
ninety-two (92%) percent of the issued and outstanding shares of capital stock
of Company.
ARTICLE II
PURCHASE AND SALE OF SELLER SHARES
2.1. PURCHASE AND SALE. Upon the terms and subject to the conditions set
forth in this Agreement, the Seller hereby sells, assigns, conveys,
transfers and delivers, free of any Liens, encumbrances, charges or
limitations of domain the Seller Shares to the Purchaser, and Purchaser
agrees to purchase the Seller Shares, in consideration of the payment by
the Purchaser to the Seller of the Purchase Price in accordance with the
provisions of Section 2.2.
2.2. PAYMENT OF PURCHASE PRICE. The Purchase Price of Seller Shares payable
by the Purchaser shall be comprised as follows:
(a) The Purchaser pays on the date hereof
$2,250,000.00/100 Dollars, in the aggregate, by
certified check or banker draft payable at par in a
Mexican Bank to or to the order of the Seller.
(b) Seller pays a portion of the Purchase Price, in the
amount of $225,000, by delivery to the Escrow Agent
of a check, to the order of Seller, to be kept in
deposit and to be held and released in accordance
with the terms of the Escrow Agreement annexed hereto
as Exhibit "2".
2.3. EXPENSES.
2.3.1. Seller and Purchaser shall each directly pay their own expenses
(including, without limitation, attorneys' and accountants' fees and
disbursements) incident to this Agreement and the transactions contemplated
hereby. With respect to any litigation relating to this Agreement, the
parties that substantially prevail in such litigation shall have their
costs and expenses (including reasonable attorneys' fees) reimbursed by the
parties who do not so prevail.
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2.3.2. Seller shall be solely responsible for any sales, use, transfer or
other similar taxes imposed in respect of the sale of the Seller Shares and
on any amounts payable to Spechem under paragraph 2.2. (c) hereof.
2.4. BROKERAGE. Company, Seller and the Purchaser each represents and
warrants that it has not directly or indirectly engaged any broker, finder,
agent or intermediary of any kind to bring about the transactions
contemplated by this Agreement, and that no person or entity is entitled to
any brokerage commission, finder's fee, agent's commission or other similar
compensation in connection with the transactions contemplated by this
Agreement. Each party agrees to indemnify the other against any claims for
any such commissions, fees or similar compensation by any person or entity
claiming to have been retained by such party or any Affiliate thereof.
2.5. INTER-COMPANY OBLIGATIONS. Except as otherwise provided herein, there
are no liabilities of the Company owing to the Seller or any of its
Affiliates or liabilities of the Seller or its Affiliates to the Company as
of the Closing Date.
ARTICLE III
CLOSING AND PLACE OF CLOSING;
CERTAIN TRANSACTIONS TO BE EFFECTED
AT OR PRIOR TO CLOSING
3.1. PLACE OF CLOSING. The Closing shall take place at the offices of
Haynes and Boone, S.C., in Mexico City, or at such other place as the
Seller and the Purchaser may mutually agree upon.
3.2. COOPERATION. At or before the Closing Date, the Seller shall execute,
or cause to be executed, and shall deliver, or cause to be delivered, to
the Purchaser all documents, instruments and things which are to be
delivered by the Seller pursuant to the provisions of this Agreement, and
the Purchaser shall execute, or cause to be executed, and shall deliver, or
cause to be delivered, to the Seller all checks or bank drafts and all
documents, instruments and things which the Purchaser is to deliver or to
cause to be delivered pursuant to the provisions of this Agreement.
3.3. CERTAIN TRANSACTIONS TO BE EFFECTED AT OR PRIOR TO CLOSING. Subject in
each case to the terms and conditions contained in this Agreement, the
following steps shall be taken concurrently at the Closing, except as
otherwise expressly stated:
3.3.1 The Seller shall deliver, or cause to be delivered, to the Purchaser
the following:
(a) Stock certificates representing the Seller Shares,
duly endorsed in favor of Purchaser or its
nominee(s).
(b) The legal opinion mentioned in Section 6.5;
(c) Corporate resolutions duly adopted by the Board of
Directors of the Seller or evidence of any actions
required for Seller for the execution and delivery by
the
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Seller of this Agreement and the performance by the
Seller of the transactions contemplated hereby, duly
certified by the Secretary or an Assistant Secretary
of the Seller, and an incumbency certificate,
certifying the names and true signatures of the
officers of the Seller authorized to execute and
deliver this Agreement.
(d) Evidence of a shareholders meeting of the Company
wherein, effective as of the date hereof, the
resignation of the directors, officers and statutory
examiner (Comisario) of the Company has been accepted
and appointing the officers, directors, and statutory
examiner (Comisario) so requested by Purchaser.
(e) All corporate minutes, stock and accounting books and
records of the Company, with entries reflecting the
current capital stock distribution of the Company and
an entry, signed by the Secretary of the Board of
Directors of the Company reflecting the transfer of
the Seller Shares as herein contemplated.
(f) Original sets of the Articles of Incorporation and
Bylaws of the Company and any amendments thereto.
(g) A copy of the accounting records for the last fiscal
year of the Company as performed in accordance with
the Federal Fiscal Code.
(h) A certificate signed by Seller stating that all
consents required to be obtained in order to carry
out the transactions contemplated hereby in
compliance with all Laws and agreements binding on
the parties hereto shall have been obtained and a
copy of any such consents.
(i) The compliance certificate required pursuant to
Section 6.3 hereof.
3.3.2. The Purchaser shall deliver, or cause to be delivered, to the
Seller the following:
(a) The payments to be made as set forth in Section 2.2.,
hereof.
(b) Corporate resolutions duly adopted by the Board of
Directors of the Purchaser authorizing the execution
and delivery by the Purchaser of the Agreement and
the performance by the Purchaser of the transactions
contemplated hereby, duly certified by the Secretary
or an Assistant Secretary of the Purchaser, and an
incumbency certificate, certifying the names and true
signatures of the officers of the Purchaser
authorized to execute and deliver this Agreement and
the Purchasers Transaction Documents;
(c) A copy of the Certificate of Incorporation of
Purchaser, certified by the Secretary of State of the
State of Texas;
(d) A copy of the Bylaws of the Purchaser, certified by a
duly authorized officer of the Purchaser to be true,
correct and complete as of the date hereof;
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(e) A certificate of corporate existence for the
Purchaser issued by the Secretary of the State of
Texas;
(f) The compliance certificate required pursuant to
Section 7.3 hereof;
ARTICLE IV
REPRESENTATION AND WARRANTIES OF THE SELLER
The Seller represents and warrants to the Purchaser as follows and acknowledges
that the Purchaser is relying on such representations and warranties in
connection with the transactions contemplated by this Agreement:
4.1. DUE ORGANIZATION AND AUTHORITY. Seller is a company duly organized,
validly existing and in good standing under the laws of Mexico, and has
full corporate power and authority to own, lease and operate its
properties and assets, to carry on its business as now conducted and
has good right, full power (corporate or other) and absolute authority,
as the case may be, to enter into this Agreement and to sell, assign
and transfer the Seller Shares to the Purchaser in the manner
contemplated herein and to perform all of its obligations under this
Agreement.
4.2. AGREEMENT AUTHORIZED; BINDING AND ENFORCEABLE. The execution, delivery
and performance of this Agreement by the Seller have been duly
authorized by all required corporate action on the part of the Seller.
This Agreement contains legal, valid and binding obligations of Seller
enforceable against Seller in accordance with its terms.
4.3. TITLE TO SHARES. Seller is the sole record and beneficial owner of the
Seller Shares. All of the Seller Shares are owned free and clear of
Liens or encumbrances and limitations of domain and are not subject to
any proxies, contracts, calls or other commitments.
4.4. NO CONFLICT. The execution, delivery and performance by the Seller of
this Agreement does not conflict with, constitute or result in a breach
of or a default under, or result in the creation of any Lien upon the
Seller Shares under
(a) the Articles of Incorporation or Bylaws of the
Seller, or
(b) any contract, indenture or other instrument or
agreement to which the Seller or the Company are
parties or by which any of the Seller Shares may be
affected, or
(c) any statute, ordinance, judgment, order, decree or
regulation of any court or governmental body
affecting or relating to the Seller, the Company or
the Seller Shares.
4.5. NO REQUIRED CONSENTS. No consent of, waiver from or notice to any
person is required in order for the Seller to execute, deliver and
perform their obligations under this Agreement or to consummate the
transactions contemplated hereby.
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4.6. CONTRACTUAL AND REGULATORY APPROVALS. Neither the Company nor the
Seller is under any obligation, contractual or otherwise, to request or
obtain the consent of any person, and no permits, licenses,
certifications, authorizations or approvals of, or notifications to,
any federal, state, or municipal government or governmental agency,
board, commission or authority are required to be obtained by the
Company or the Seller:
(a) in connection with the execution, delivery or
performance by the Seller of this Agreement or the
completion of any of the transactions contemplated
herein;
(b) to avoid the loss of any permit, license,
certification or other authorization of the Company;
or
(c) in order that the authority of the Company to carry
on its business activities in the ordinary course and
in the same manner as presently conducted remains in
good standing and in full force and effect as of and
following the Closing Date.
4.7. CAPITALIZATION. The entire authorized capital stock of the Company
consists of 49,945,955 issued and outstanding shares of common stock,
with a par value of $ One Peso per share, of which 45,950,278 shares
are owned of record and beneficially by Seller. The Seller Shares have
been duly authorized and are validly issued, fully paid and
non-assessable, with no liability attaching to the ownership thereof.
There are no authorized, outstanding or existing
(a) voting trusts or other agreements or understandings
with respect to the voting of the Company's capital
stock or securities convertible into or exchangeable
for such stock;
(b) options, warrants or other rights (including, without
limitation, preemptive rights) to purchase or
subscribe for any of the Company's capital stock, any
authorized by un-issued shares of the Company's
capital stock or any securities convertible into or
exchangeable for such shares;
(c) agreements of any kind relating to the issuance of
capital stock of either of the Company, any such
convertible or exchangeable securities or any such
options, warrants or rights; or
(d) agreements of any kind which may obligate the Company
to issue or purchase any of their respective
securities.
4.8. NO OTHER PURCHASE AGREEMENTS. No person has or will have on the Closing
Date any agreement, option, understanding or commitment, or any right
or privilege (whether by law, preemptive or contractual) capable of
becoming an agreement, option or commitment, including convertible
securities, warrants or convertible obligations of any nature, for:
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(a) The purchase, subscription, allotment or issuance of,
or conversion into, Shares in the capital of the
Company or any securities of the Company.
(b) The purchase from the Seller of any of the Seller
Shares.
(c) The purchase or other acquisition from the Company of
any of its undertaking, property or assets, other
than in the ordinary course of business; non of which
is materially adverse to the Company.
4.9. STATUS, CONSTITUENT DOCUMENTS AND LICENSES.
4.9.1. The Company is duly incorporated and validly existing under the laws of
Mexico. The Company has all necessary corporate power to own its
properties and to carry on its business as it is now being conducted.
4.9.2. The by-laws and other constituent documents of the Company, as amended
to the date hereof, are attached as Exhibit "3".
4.9.3. The Company is duly licensed, registered and qualified as a Company to
do business and is in good standing in all material respects in each
the jurisdiction in which:
(a) it owns or leases property; or
(b) the nature or conduct of its business or any part
thereof, or the nature of its property or any part
thereof, makes such qualification necessary to enable
its business activities to be carried on as now
conducted or to enable its property and assets to be
owned, leased and operated by it.
4.9.4. The Company is in compliance with all terms and conditions of the
Licenses. There are no proceedings in progress, pending or threatened,
which could result in the revocation, cancellation or suspension of any
of the Licenses. The Licenses, which the Company holds, are listed in
Exhibit "4".
4.10. COMPLIANCE WITH CONSTITUENT DOCUMENTS, AGREEMENTS AND LAWS. The
execution, delivery and performance of this Agreement and each of the
other agreements and instruments contemplated herein by the Seller and
the Company, and the completion of the transactions contemplated hereby
and thereby, will not constitute or result in a violation or breach of
or default under, or cause the acceleration of any obligations of the
Company under:
a. any term or provision of its articles, by-laws or other
constituent documents;
b. subject to obtaining the contractual consents referred to in
Exhibit "5", the terms of any agreement (written or oral),
indenture, instrument or understanding or other obligation or
restriction to which the Company, or the Seller is a party or
by which any of them is bound; or
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c. any term or provision of any of the Licenses or any order of
any court, governmental authority or regulatory body or any
Laws.
4.11. CORPORATE RECORDS. The corporate records and minute books of the
Company contain complete and accurate minute, of all meetings of the
Board of Directors ("Consejo de Administracion") and shareholders of
the Company, and original signed copies of all resolutions duly passed
or adopted by the directors or shareholders of the Company. The Stock
Ledger Book, the Capital Variations Book, the Stockholders Minute Book
and the Board Minute Book and any similar corporate records of the
Company are, in all material respects, complete and accurate.
4.12. DIRECTORS. The current directors, officers and senior management of the
Company are listed in Exhibit "6" hereto.
4.13. FINANCIAL STATEMENTS. The Audited Financial Statements and the Closing
Financial Statements have been prepared in accordance with Generally
Accepted Accounting Principles, applied on a basis consistent with
that of the previous fiscal years. The Audited Financial Statements
and the Closing Financial Statements are true, correct and complete,
and fairly present or will present the financial condition of the
Company as of their respective dates, respectively, including the
assets and liabilities of the Company as of such dates and the
revenues, expenses and results of the operations of the Company for
the fiscal year/interim period ended on their respective dates.
FINANCIAL RECORDS. All financial transactions of the Company have been recorded
in the financial books and records of the Company in accordance with good
business practice, and such financial books and records:
(a) accurately reflect the basis for the financial condition and
the revenues, expenses and results of operations of the
Company shown in the Audited Financial Statements and the
Closing Financial Statements; and
(b) present fairly the financial condition and the revenues,
expenses and results of the operations of the Company as of
and to the dates thereof.
4.14. LIABILITIES OF THE COMPANY. There are no liabilities (contingent or
otherwise) of the Company of any kind whatsoever, and, to the best of
the knowledge of the Seller, there is no basis for assertion against
the Company of any liabilities of any kind, other than:
(a) liabilities disclosed or reflected in or provided for in the
Audited Financial Statements and liabilities disclosed or
reflected in or provided for in the Closing Financial
Statements;
(b) liabilities incurred since the date of Audited Financial
Statements which were incurred in the ordinary course of
business and, in the aggregate, are not materially adverse to
the Business; and
(c) other liabilities expressly disclosed in this Agreement or in
the Exhibits attached hereto.
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4.15. INDEBTEDNESS. Except as noted in the Audited Financial Statements or
the Closing Financial Statements, the Company has no outstanding bonds,
debentures, mortgages, promissory notes or other indebtedness except
trade and business accounts payable incurred in the ordinary course of
business, and is not under any obligation to create or issue any bonds,
debentures, mortgages, promissory notes or other indebtedness except
trade and business accounts payable incurred in the ordinary course of
business, none of which is or will be adverse to the Company.
4.16. ABSENCE OF CERTAIN CHANGES OR EVENTS. Since the Audited Financial
Statements Date, the Company has not:
(a) incurred any obligation or liability (fixed or contingent),
except normal trade or business obligations incurred in the
ordinary course of business;
(b) paid or satisfied any obligation or liability (fixed or
contingent), except:
(i) current liabilities included in the Audited Financial
Statements,
(ii) Exhibited payments pursuant to obligations under loan
agreements or other contracts or commitments
described in this Agreement or in the Exhibits
hereto;
(c) created any Lien upon any of its properties or assets, except
as described in this Agreement or in the Exhibits hereto;
(d) sold, assigned, transferred, leased or otherwise disposed of
any of its properties or assets, except in the ordinary course
of business, except as described in this Agreement or in the
Exhibits hereto;
(e) purchased, leased or otherwise acquired any properties or
assets, except in the ordinary course of business;
(f) waived, canceled or written-off any rights, claims, accounts
receivable or any amounts payable to the Company, except in
the ordinary course of business and for which adequate
reserves have been made;
(g) entered into any transaction, contract, agreement or
commitment, except in the ordinary course of business and
except as described in this Agreement or the Exhibits hereto;
(h) terminated, discontinued, closed or disposed of any plant,
facility or business operation; or
(i) agreed to any of the foregoing.
And none of such payments or transactions described in this Section 4.17 is,
individually or in the aggregate, materially adverse to the Company.
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4.17. COMMITMENTS FOR CAPITAL EXPENDITURES. The Company is not committed to
make any capital expenditures, nor have any capital expenditures been
authorized by the Company at any time, except for capital expenditures
made in the ordinary course of business.
4.18. DIVIDENDS AND DISTRIBUTIONS. Since its incorporation the Company has
not declared or paid any dividend or made any other distribution on any
of its Shares of any class, or redeemed or purchased or otherwise
acquired any of its Shares of any class, or reduced its authorized
capital or issued capital, or agreed to do any of the foregoing.
4.19. TAX MATTERS.
4.19.1. The Company has duly and on a timely basis prepared and filed all tax
returns and other documents required to be filed by it in respect of
all Governmental Charges, and such returns and documents are complete
and correct and reflect accurately all liability for Governmental
Charges of the Company for the periods covered thereby.
4.19.2. The Company has paid on a timely basis all Governmental Charges which
are due and payable by it on or before the date hereof. Adequate
provision was made in the Audited Financial Statements for all
Governmental Charges accrued to October 31, 1999 and adequate provision
will be made for all Governmental Charges accrued to the date hereof;
respectively, including, without limitation, the provisions for current
and deferred taxes and any additional provision or reserve in respect
of potential reassessments. The Company has no liability for
Governmental Charges other than those provided for in the Audited
Financial Statements and in the Closing Financial Statements.
4.19.3. There are no actions, suits, proceedings, investigations, inquiries or
claims now pending or made or, to the best of the knowledge of the
Seller, threatened against the Company in respect of Governmental
Charges, except as set forth in Exhibit "7".
4.19.4. The Company has withheld from each amount paid or credited to any
person the amount of Governmental Charges required to be withheld
therefrom and has remitted such Governmental Charges to the proper tax
or other receiving authorities within the time required under
applicable legislation.
4.20. LITIGATION. Except for the matters referred to in Exhibit "8", there
are no Claims pending or threatened, by or against or affecting the
Company before or by any court or any federal, state, or local or other
governmental department, commission, board, bureau, agency or
instrumentality, domestic or foreign. Except for the matters referred
to in Exhibit "8", there are no other matters on which any such Claim
might be commenced. Any pending or threatened Claims against the
Company or in respect of any of its properties or rights if decided
adversely to the Company would not individually or in the aggregate
have a material adverse effect on its business activities as
carried out as of the date hereof
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4.21. ENVIRONMENTAL MATTERS.
4.21.1. ENVIRONMENTAL LAWS. The Company, the operation of its business
activities, the property and assets owned, leased, occupied or
otherwise used by the Company and the use, maintenance and operation
thereof have been carried out without knowingly violating the
Environmental Laws. The Company has complied to the best of its
knowledge, in all material respects, with all reporting and monitoring
requirements under all Environmental Laws.
4.21.2. PERMITS, ETC. The Company has obtained such permits, certificates,
approvals, registrations and licenses as it has deemed necessary to
conduct the Business and to own, use and operate the properties and
assets of the Company in compliance, to the best of its knowledge, with
all Environmental Laws.
4.21.3. HAZARDOUS MATERIALS, RELEASES. There are no Hazardous Materials located
on or in any of the properties or assets owned, leased, occupied or
otherwise used by the Company knowingly in violation of Environmental
Laws, and no willful Release of any Hazardous Materials or in violation
of any Environmental Laws has occurred on or from the properties and
assets of the Company or has resulted from the operation of the
Business of the Company. The Company has not used any of its properties
or assets to produce, generate, store, handle, transport or dispose of
any Hazardous Materials in violation, to the best of its knowledge, of
the Environmental Laws and none of the real properties or leased
premises has been or is being used as a landfill or waste disposal
site.
4.21.4. STORAGE TANKS. There are no underground or surface storage tanks
located on or in any of the properties or assets owned, leased,
occupied or otherwise used by the Company in breach of the
Environmental Laws. The Company has no knowledge of any basis upon
which the Company could become, responsible for any clean-up or
corrective action under any Environmental Laws.
4.21.5. NOTICES, ETC. Except as disclosed in Section 4.21, the Company has not
received any notice or claim (and to the best of the knowledge of the
Seller there is no basis for such notice or claim) to the effect that
any of them or the operations of its business activities are or have
ever been:
(a) not in full compliance with all applicable
environmental permits, certificates, approvals,
registrations and licenses and Environmental Laws;
(b) the subject of any outstanding written order or
agreement with any governmental authority or private
party respecting any Environmental Laws, any remedial
actions or a Release or threatened Release, or
(c) the subject of any administrative or judicial
proceeding, civil or criminal, alleging the violation
of any Environmental Laws or any environmental
permit, certificate, approval, registration or
license or of any action or investigation by any
governmental authority as to whether any remedial
action is needed to respond to a Release or
threatened Release under any applicable Environmental
Laws.
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4.22. TITLE TO ASSETS. The Company is the owner of and has good and
marketable title to all of its properties and assets, including,
without limitation, all properties and assets that are reflected in the
Audited Financial Statements and all properties and assets acquired by
the Company are free and clear of all Liens whatsoever, except for:
(a) the properties and assets disposed of, utilized or consumed by
the Company in the ordinary course of business;
(b) the Liens disclosed in Exhibit "9" or reflected in the Audited
Financial Statements;
4.22.1. There are no agreements or commitments to purchase property or assets
by the Company other than in the ordinary course of business.
4.23. DEPOSIT ACCOUNTS AND SAFE DEPOSIT BOXES OF THE COMPANY. The name and
address of each bank, trust company or similar institution with which
the Company has one or more accounts or one or more safe deposit boxes,
the number of each such account and safe deposit box and the names of
all persons authorized to draw thereon or to have access thereto are as
set forth in Exhibit "10".
4.24. ACCOUNTS RECEIVABLE. The accounts receivable of any kind of the Company
are reflected in the Audited Financial Statements and all accounts
receivable of the Company arising arose from bona fide transactions in
the ordinary course of business and are valid, enforceable and fully
collectible accounts.
4.25. INVENTORY. The current inventory of the Company (including but not
limited to (a) all finished goods, work in progress and packing and
shipping supplies; and (b) all new and unused maintenance items and all
other materials and supplies on hand), subject to an allowance for
obsolete inventory (consistent with the basis of calculation of
allowances for obsolete inventory reflected in the Audited Financial
Statements), is good and usable and is capable of being processed and
sold in the ordinary course of business for the specific purpose for
which such inventory was intended to be used at levels sufficient (but
not excessive) for the continuation of the Business.
4.26. REAL PROPERTIES AND LEASED PREMISES.
(a) LISTS. Exhibit "11"lists all real properties and sets forth a
legal description thereof.
(b) TITLE. The Company is the beneficial and registered owner of,
and has good and marketable title to, the real properties,
free and clear of any and all Liens, except for those Liens
described in Exhibit "9".
(c) USE AND ENJOYMENT. The real properties and the leased premises
described in Exhibit "11" and all buildings and structures
located thereon and the conduct of business as presently
conducted do not violate, in any material respects, any Laws
including any zoning or building laws, by-laws, ordinances,
regulations, covenants or official plans. The use of the real
properties and leased premises in the manner in which they are
presently used is not materially adversely affected by any
such laws referred to in the preceding sentence. The Company
has not received any
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notification alleging any such violation except as set forth
in Exhibit "8" and there is no basis for the Company receiving
such notification. Such buildings and structures (or any
equipment thereon) do not encroach upon any lands not owned by
the Company. There are no encroachments from adjacent lands
unto the real properties. The Company has adequate rights to
ingress and egress to the nearest public street for the
operation of its business activities the ordinary course.
There are no expropriation, condemnation or similar
proceedings pending or threatened, with respect to any of the
real properties or the leased premises or any part thereof.
All public utilities required for the operation of its
business activities connect to the real properties and the
leased premises are through adjacent public streets or by way
of valid, registered easements.
(d) WORK ORDERS AND DEFICIENCIES. No alteration, repair,
improvement or other work has been ordered, directed or
requested in writing to be done or performed by the Company to
or in respect of the real properties, or the leased premises,
or to any of the building and fixtures, by any governmental
entity having jurisdiction, which alteration, repair,
improvement or other work has not been completed. There are no
matters under discussion with any such governmental entity
relating to work orders, non-compliance orders, deficiency
notices or other such notices and there are currently no facts
or circumstances which exist which could be the basis of any
such claim.
(e) CONSTRUCTION LIENS. All accounts for work and services
performed and materials placed or furnished upon or in respect
of any of the real properties or the leased premises at the
request of the Company have been fully paid and satisfied and
no one is entitled to claim a lien or mortgage under the
applicable construction lien legislation of such jurisdiction
in which the relevant property is situated, other than in
respect of accounts for which the payment due date has not yet
passed.
(f) UTILITY CHARGES. There is nothing owing in respect of any of
the real properties or the leased premises by the Company to
any municipality, nor to any other commission owning or
operating a public utility for water, gas, electrical power or
energy, steam or hot water, or for the use thereof; other than
current accounts in respect of which the payment due date has
not yet passed.
(g) MUNICIPAL CHARGES. Real estate and other civic taxes, general
and special, including those levied for the current year and
imposed on any of the real properties, or on the Company in
respect of the use of any of the leased premises, have been
paid to date, save and except in respect of any part thereof
the payment due date for which has not yet passed.
4.27. LEASED PREMISES. Exhibit "11" lists and includes a true and complete
copy of all lease agreements for real properties or other facilities
being used or occupied by the Company ("Leases"). The Company is
exclusively entitled to all rights and benefits as lessee under the
Leases and the Company has not sublet, assigned, licensed or otherwise
conveyed any rights in the leased premises or in the Leases to any
person. All rental and other payments and other material obligations
required to be paid and performed by the
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Company pursuant to the Leases have been duly paid or performed; the
Company is not in default of any of its material obligations under the
Leases and none of the landlords or other parties to the Leases are in
default of any of their obligations under the Leases. The terms and
conditions of the Leases will not be affected by, nor will any of the
Leases be in default as a result of, the completion of the transactions
contemplated hereunder. No event, occurrence, condition or act has
occurred or exists which, with the giving of notice, the lapse of time
or the happening of another event or condition, would become a material
default by the Company under the Leases.
4.28. LEASES OF PERSONAL PROPERTY. Except as set out in Exhibit "12", the
Company is not the lessee under any lease of personal property in
respect of which the annual financial obligation exceeds ($10,000
Dollars) and have an unexpired term of more than two years.
4.29. INTELLECTUAL PROPERTY/INDUSTRIAL PROPERTY RIGHTS. TITLE, USE AND
ENJOYMENT. The conduct of the business activities of the Company does
not infringe upon the patents, industrial designs, trade-marks,
trade-names, brand names, service marks, logos or copyrights, or the
trade secrets, know-how or confidential proprietary information of any
other person. Except as set out in Exhibit "8", the Company has not
received any notice, complaint, threat or claim alleging infringement
of, any patent, trade mark, trade name, copyright, industrial design,
trade secret or other Intellectual Property or proprietary right of any
other person and there are currently no facts or circumstances which
exist which could be the basis of any such claim.
4.29.1. SOFTWARE. The Company owns, or has valid rights to use the computer
software it uses in the manner in which such software is currently
being used by the Company and, none of the software used infringes any
intellectual properties of another person.
4.29.2. YEAR 2000. All software and hardware used by the Company or sold as
part of any product sold by the Company is Year 2000 compliant in that
it will provide the following functions:
(a) handle date information after January 1, 2000,
including accepting date input, providing date output
and performing calculations on dates or portions of
dates;
(b) function accurately and without interruption after
January 1, 2000, without any change in operations
associated with the advent of the new century;
(c) respond to two-digit year-date input in a way that
resolves the ambiguity as to century in a disclosed,
defined and predetermined manner; and
(d) store and provide output of date information in ways
that are unambiguous as to century and which account
for leap years.
4.30. RESTRICTIONS ON DOING BUSINESS. The Company is not a party to or bound
by any agreement which would restrict or limit its right to carry on
any business or activity or to
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solicit business from any person or in any geographical area or
otherwise to conduct its business as the Company may determine.
4.31. GUARANTEES, WARRANTIES AND DISCOUNTS. Except as described in the
Audited Financial Statements or as will be described in the Closing
Financial Statements, or as set out in Exhibit "9":
(a) the Company is not a party to or bound by any
agreement of guarantee, indemnification, assumption
or endorsement or any other like commitment of the
obligations, liabilities (contingent or otherwise) or
indebtedness of any person;
(b) the Company has not given any guarantee or warranty
in respect of any of the products sold or the
services provided by it, except warranties made in
the ordinary course of business, and
(c) the Company has established appropriate reserves in
respect of its warranty obligations and the Seller
are not aware of any latent defect or other product
defect with the products it has manufactured or sold
which could result in the Company incurring expenses
which exceed the reserves established for such
purposes.
4.32. GOOD STANDING OF AGREEMENTS.
(a) GOOD STANDING. The Company is not in any material
default or breach of any of its obligations under any
one or more contracts, agreements (written or oral),
commitments, indentures or other instruments to which
it is a party or by which it is bound and there
exists no state of facts which, after notice or lapse
of time or both, would constitute such a default or
breach. All such contracts, agreements, commitments,
indentures and other instruments are in good
standing, in all material respects, and in full force
and effect without amendment thereto, and the Company
is entitled to all benefits thereunder, except as set
forth in Exhibit "8".
(b) MATERIAL COVENANTS. All material covenants to be
performed by the other party thereto have been fully
performed.
(c) SALES AND LOSSES. The Company has no commitments or
agreements for the sale of products or assets at
prices or under conditions involving prospective
losses.
(d) LIST OF MATERIAL CONTRACTS. A list of the Material
Contracts to which the Company is a party is set out
in Exhibit "13". For the purposes of this Agreement,
"Material Contract" means any contract with a dollar
value equal (to or exceeding ($10,000 Dollars) or
with an unexpired term of one year of more.
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<PAGE> 17
4.33. EMPLOYMENT AGREEMENTS.
(a) SENIOR MANAGEMENT. Set out in Exhibit "6" a list of
the General Manager ("Director General") and the
other Managers ("Directores y/o Gerentes") of the
Company, their salaries, date of hire by the Company,
any termination arrangements and a description of all
benefits to which such executives are entitled.
(b) Except as specified in Exhibit "14", the Company is
not a party to any written or oral employment,
service or consulting agreement relating to any one
or more persons, except for oral employment
agreements which are of indefinite term and without
any special arrangements or commitments with respect
to the continuation of employment or payment of any
particular amount on termination of employment.
(c) The Company has no employee who cannot be dismissed
on such period of notice as is required by law in
respect of a contract of hire for an indefinite term.
4.34. LABOR MATTERS AND EMPLOYMENT STANDARDS.
(a) COLLECTIVE AGREEMENTS. Except as specified in Exhibit
"14", the Company is not subject to any collective or
other agreement with any labor union or employee
association.
(b) COMPLIANCE WITH LAWS. The Company has complied in all
material respects, with all Laws relating to
employment, including those relating to wages, hours,
collective bargaining and representation,
occupational health and safety, workers' hazardous
materials, employment standards, pay equity,
unemployment compensation and workers' compensation.
(c) LIABILITIES TO EMPLOYEES. The Company is not and has
not engaged in any unfair labor practice. The Company
is not liable for any damages to any employee or
former employee resulting from the violation of any
applicable labor or employment Laws or agreement,
including the collective agreements, except to the
extent the Company may be liable under or as a result
of any of the grievances referred to in Exhibit "8".
(d) CLAIMS, COMPLAINTS, GRIEVANCES. Except as disclosed
in Exhibit "8", there are no outstanding claims or
complaints against the Company in respect of:
(i) wrongful dismissal;
(ii) breaches of employment contracts;
(iii) unpaid wages or benefits;
(iv) human rights complaints or inquiries;
(v) employment equity or labor standards
legislation;
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(vi) other complaints or grievances.
4.34.1. There are no minutes of settlement or decisions which contain or impose
outstanding obligations of the Company in respect of any such claims,
complaints or grievances.
4.35. STRIKES, ETC. There is no labor strike, slowdown or stoppage pending or
involving or threatened against the Company. There has not been any
labor strike, slowdown or stoppage involving the Company during the
past five years.
4.36. OCCUPATIONAL HEALTH AND SAFETY. There are no outstanding inspection
orders or employee claims against the Company under any occupational
health and safety legislation, or regulations thereto.
4.36.1. There are no outstanding directives or rulings made to the Company or
prosecution orders or employee claims against the Company under any
labor, employment or occupational health and safety legislation. Nor is
the Company aware of any pending directives or rulings or threatened
prosecutions or employee claims or grounds upon which any such
directives or rulings may be issued or prosecution or employee claims
may be commenced, except as referred to in Exhibit "8" hereto.
4.36.2. There have been no material accidents or incidents affecting worker
health or safety or workers compensation with respect to the employees
of the Company.
4.37. WORKERS' COMPENSATION. All workers' compensation assessments against
the Company have been timely and fully paid (including workers sharing
in the profits (participacion de los trabajadores en las utilidades) of
the Company).
4.38. EMPLOYEE BENEFIT AND PENSION PLANS.
4.38.1. DESCRIPTION OF BENEFIT PLANS. Except as listed in Exhibit "15", the
Company does not have, and is not subject to any present or future
obligation or liability under any pension plan, deferred compensation
plan, retirement income plan, stock option or stock purchase plan,
profit sharing plan, bonus plan or policy, employee group insurance
plan, hospitalization plan, disability plan or other employee benefit
plan, program, policy or practice, formal or informal, funded or non
funded, with respect to any of its employees or former employees or
beneficiaries or dependents.
4.38.2. Exhibit "15" also lists the oral and written general policies
inconsistency with the Mexican industry practice, procedures and
work-related rules in effect with respect to employees of the Company,
including but not limited to policies regarding holidays, sick leave,
vacation, disability and death benefits, termination and severance pay,
automobile allowances and rights to company provided automobiles and
expense reimbursements. All those policies, procedures and rules are in
compliance with applicable Law (The plans, programs, policies,
practices and procedures listed in Exhibit "15" are collectively called
the "Benefit Plans").
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4.38.3. CLAIMS. Except as specified in Exhibit "8", there are no pending or
threatened claims by any employee covered under any of the Benefit
Plans or by any other person which allege a breach of the terms of a
Benefit Plan or fiduciary duties or violation of governing law or which
may result in liability to the Benefit Plans or the Company, and there
is no basis for such a Claim. There are no employees or former
employees or beneficiaries or dependents of employees or former
employees of the Company who are receiving from the Company any pension
or retirement payments, or who are entitled to receive any such
payments, not covered by a pension plan to which the Company is a
party.
4.38.4. DOCUMENTATION, REGISTRATION. Those copies of the Benefit Plans and
related documentation as indicated in Exhibit "15" are true, correct
and complete copies thereof and all oral or written Benefit Plans are
accurately described in Exhibit "15" hereto. The Benefit Plans are duly
registered where required by applicable Laws, and are in good standing
under such applicable Laws.
4.38.5. CONTRIBUTIONS, FUNDING OBLIGATIONS. All required employer and employee
contributions and premiums under the Benefit Plans to the date hereof
have been made, the respective fund or funds established under the
Benefit Plans are fully funded in accordance with applicable Laws, and
no past service funding or post service termination liabilities exist
thereunder.
4.38.6. NON-ARMS LENGTH PAYMENTS. Except as otherwise contemplated in this
Agreement or the Exhibits hereto, no payments have been made or
authorized since the date of the Closing Financial Statements by the
Company to its officers, directors, former directors, shareholders or
employees or to any person not dealing at arms' length with any of the
foregoing, except in the ordinary course of business and at the regular
rates payable to them of salary, pension, bonuses, rents or other
remuneration of any nature.
4.38.7. ACCRUAL OF VACATION PAY, BONUSES, ETC. All vacation pay, bonuses,
commissions and other employee benefit payments payable to employees or
any member of the Company are reflected and have been accrued in the
Audited Financial Statements and will have been accrued in the Closing
Financial Statements, as the case may be.
4.38.8. WITHDRAWALS AND COMPLIANCE WITH PLANS. No withdrawal of assets has been
made from the assets of any Benefit Plan fund held from time to time
except for the purpose of paying benefits or proper expenses of the
Benefit Plans in accordance with the terms of the Benefit Plans and
applicable Laws and no past service funding or post-termination
liabilities exist thereunder. The Benefit Plans are funded in
accordance with the rules of the Benefit Plans and applicable Laws. All
material obligations required to be performed in connection with the
Benefit Plans pursuant to their terms and any applicable Laws have been
performed. There are no obligations under or in respect of the Benefit
Plans (including any representations made to any of the Company
employees) that are not contained in the text of the Benefit Plans and
funding agreement therefor. The Company has not incurred any liability
in connection with the winding-up of a pension plan or the withdrawal
from a multi-employer plan which would have a material adverse effect
on the Business, profits or condition (financial or otherwise) of
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the Company, or impair the ability of the Company to perform its
obligations contained in this Agreement.
4.38.9. PARTICIPANT AND BENEFICIARY RECORDS. The participant and beneficiary
records with respect to each Benefit Plan are in the custody of the
persons listed in Exhibit "6". All such records accurately state the
history of each participant and beneficiary in connection with each
Benefit Plan and accurately state the benefits earned by or owed to
each such person under each Benefit Plan.
4.39. INSURANCE. Exhibit "16" contains a true and correct copy of all
insurance policies maintained by the Company or under which the Company
is covered in respect of its properties, assets, business or personnel
as of the date hereof. Such insurance policies are in full force and
effect and the Company is not in default with respect to the payment of
any premium or compliance with any of the provisions contained in any
such insurance policy. The Company has not received notice from any of
the insurers regarding cancellation of such insurance policies. The
Company has not received notice from any of the insurers denying any
claims and to the best of the knowledge of the Seller no such notice is
expected to be received.
4.40. COMPLIANCE WITH LAWS. Except as disclosed in Exhibit "8", the Company
has conducted and is conducting its Business in compliance, in all
material respects, with all applicable Laws of each jurisdiction in
which it carries on such business.
4.41. DISCLOSURES. No representation or warranty contained in this Article 4
and no statement contained in any Exhibit or closing document to be
provided to the Purchaser pursuant hereto, or in connection with the
transactions contemplated hereby, contains any untrue statement, or
omits to state any material fact which is necessary in order to make
the statements contained therein not misleading.
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF THE PURCHASER
The Purchaser hereby represents and warrants to the Seller as follows:
5.1. DUE ORGANIZATION AND AUTHORITY. The Purchaser is a Company
duly organized, validly existing and in good standing under
the laws of the State of Texas, and has full corporate power
and authority to own, lease and operate its properties and
assets and to carry on its business as now conducted and in
each state in which the nature of its activities requires it
to be qualified.
5.2. AGREEMENT AUTHORIZED, BINDING AND ENFORCEABLE. The execution,
delivery and performance of this Agreement by the Purchaser,
have been duly authorized by all required corporate action.
This Agreement is the legal, valid and binding obligations of
the Purchaser enforceable against it in accordance with its
terms, except as enforceability may be limited by applicable
bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium or similar laws affecting creditors' rights and by
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equitable principles of general application which may limit
the availability of certain equitable remedies (such as
specific performance).
5.3. NO CONFLICT. The execution, delivery and performance by the
Purchaser of this Agreement do not conflict with, constitute
or result in a breach of or a default under, (a) the Articles
of Incorporation or Bylaws of the Purchaser, (b) any material
contract, indenture, instrument, order, judgment, decree or
regulation by which the Purchaser, is bound, (c) any statute,
ordinance, judgment, order, decree or regulation of any court
or governmental body affecting or, relating to the Purchaser.
5.4. NO REQUIRED CONSENTS. No consent of, waiver from or notice to
any party is required in order for the Purchaser to execute,
deliver and perform its obligations under this Agreement or to
consummate the transactions contemplated hereby.
5.5. REVIEW OF INFORMATION. Purchaser has received and reviewed to
its satisfaction the information referred to herein and it is
not aware of any representation or warranty of the Seller
which contains any untrue statements of a material fact or
omits to state any material facts which is necessary in order
to make the statements contained therein not misleading but
this statement of the Purchaser does not impose directly or
indirectly any responsibility on the part of the Purchaser to
insure that Seller representations and warranties are accurate
and true.
ARTICLE VI
CONDITIONS PRECEDENT TO THE PURCHASER'S OBLIGATIONS
Unless such conditions are met on the date hereof, all obligations of
the Purchaser under this Agreement are subject to the fulfillment of
each of the following conditions prior to or at the Closing:
6.1. REPRESENTATIONS AND WARRANTIES. All of the representations,
warranties and certifications of the Seller contained in this
Agreement shall be true, correct and complete in all respects
on the Closing Date as though all such representations,
warranties and certifications were made and given on and as of
the date hereof.
6.2. PERFORMANCE BY THE SELLER. The Seller shall have performed and
complied with all covenants, agreements and conditions
required to be performed or complied with by them pursuant to
this Agreement prior to or at the Closing.
6.3. COMPLIANCE CERTIFICATE. The Purchaser shall have received a
compliance certificate, in form and substance reasonably
satisfactory to the Purchaser and duly executed by the Seller,
with respect to the matters set forth in Sections 6.1 and 6.2.
6.4. NO RESTRAINT ON TRANSACTIONS. There shall be no effective
injunction, judgment, decree, restraining order or order of
any nature issued by a court or government agency of competent
jurisdiction which shall direct that this Agreement or the
transactions contemplated by this Agreement not be consummated
in all material respects as herein provided. There shall be no
pending litigation or other proceeding
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instituted by any governmental authority, the effect of which
litigation would prevent the consummation of the transactions
contemplated by this Agreement.
6.5. LEGAL OPINION. The Seller shall deliver at the Closing Date an
opinion of Gutierrez Diaz de Rivera y Torres, S.C.,
substantially in the form annexed hereto as Exhibit "17".
6.6. ESCROW AGREEMENT. At the Closing Date, the Sellers shall
execute and deliver the Escrow Agreement in the form of
Exhibit "2".
ARTICLE VII
CONDITIONS PRECEDENT TO THE SELLER OBLIGATIONS
Unless such conditions are met on the date hereof, all obligations of
the Seller under this Agreement are subject to the fulfillment of each
of the following conditions prior to or at the Closing:
7.1. REPRESENTATIONS AND WARRANTIES. All of the representations and
warranties of the Purchaser contained in this Agreement shall
be true, correct and complete in all respects on the Closing
Date as though all such representations and warranties were
made and given on and as of the date hereof.
7.2. PERFORMANCE BY THE PURCHASER. The Purchaser shall have
performed and complied with all covenants, agreements and
conditions required to be performed or complied with by the
Purchaser pursuant to this Agreement prior to or at the
Closing.
7.3. COMPLIANCE CERTIFICATE. The Seller shall have received a
compliance certificate, in form and substance reasonably
satisfactory to the Seller and duly executed by a duly
authorized officer of the Purchaser, with respect to the
matters set forth in Sections 7.1 and 7.2 hereof.
7.4. NO RESTRAINT ON TRANSACTIONS. There shall be no effective
injunction, judgment, decree, restraining order or order of
any nature issued by a court or governmental agency of
competent jurisdiction which shall direct that this Agreement
or any of the transactions contemplated by this Agreement not
be consummated as herein provided. There shall be no pending
litigation or other proceeding instituted by any governmental
authority, the effect of which litigation would prevent the
consummation of the transactions contemplated by this
Agreement.
ARTICLE VIII
POST-CLOSING COVENANTS OF THE SELLER
8.1. NON-COMPETITION.
8.1.1. For a period of ten (10) years after the Closing Date, neither
Seller nor their respective Affiliates whether operating in
the United States or Mexico shall directly or indirectly: (a)
solicit Business from any person who was a customer of any of
the
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Company during the twelve (12) months preceding the Closing
Date; or (b) compete or otherwise engage in the chemical
processing, refining, commercialization and/or trading
business of high purified CS and C6 paraffinic hydrocarbon
solvents which supply the plastic industries or substitutes
thereof (the "Business") anywhere in North America, Central
America or South America (the "Territory").
8.1.2. Nothing in Section 8.1.1 above shall be deemed to prohibit or
restrict the Seller, directly or indirectly, from acquiring
and thereafter owning at any time after the Closing Date, any
entity which for periods immediately prior to such acquisition
directly or indirectly derives less than ten (10%) percent of
its revenues from a business or businesses that are the same
or similar to the Business.
8.1.3. In the event that the Seller or any of its Affiliates shall
breach any of the provisions of Section 8.1, or in the event
that any such breach is threatened, in addition to and without
limiting or waiving any other remedies available to the
Purchaser at law or in equity, the Purchaser shall be entitled
to immediate injunctive relief in any court, domestic or
foreign, having the capacity to grant such relief, to restrain
any such breach or threatened breach and to enforce the
provisions of this Section 8.1. The Seller acknowledges and
agrees that there is no adequate remedy at law for any such
breach or threatened breach and, in the event that any
proceeding is brought seeking injunctive relief, agree not to
use as a defense thereto that there is an adequate remedy at
law. The parties further acknowledge that the restrictions
provided for in this Section 8.1 are, under all of the
circumstances, reasonable and necessary for the protection of
the Purchaser and the Company and their respective businesses.
If any provision of this Section 8.1 is determined to be too
broad so as to be unenforceable, such provisions shall be
deemed to have been modified to be only so broad as is
enforceable.
8.2. PREPARATION OF TAX RETURNS. After the Closing, the Seller will
prepare and file (or cause to be prepared and filed) with the
appropriate authorities all reports, annual balances or
accountings which are required to be filed by or with respect
to the Company in respect of all periods through the Closing.
ARTICLE IX
POST-CLOSING COVENANTS OF THE PURCHASER
9.1. PREPARATION OF TAX RETURNS. After the Closing, the Purchaser
will prepare and timely file (or cause to be prepared and
timely filed) as required by law with the appropriate
authorities all reports, annual balances or accountings (the
"Reports") referred to in Section 8.2 hereof. The Purchaser
will also furnish such information and the reasonable
assistance of such personnel as the Seller may reasonably
request to prepare the Reports referred to in Section 8.2
hereof and to respond to any audits thereof.
9.2. ACCESS TO RECORDS. For a period of one (1) year after the
Closing, Purchaser will, and will cause the Company to (a)
maintain all books and records relating to the Company which
may be reasonably necessary in order for the Seller to satisfy
the
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requirements of auditors and other fiscal obligations imposed
upon the Seller or any of its Affiliates (including, without
limitation, responding to audits of annual balances), and (b)
cooperate with and afford the Seller (and Purchaser shall
cause the Company to afford the Seller), or will use its best
efforts to cause any other appropriate person to cooperate
with and afford the Seller, at the Seller's sole cost and
expense, reasonable access to and the ability to copy, during
normal business hours, such books and records (as well as
access to and reasonable assistance of personnel) on any other
matter relating to the Company which are reasonably necessary
(including, without limitation, responding to audits) in order
for the Seller to satisfy the requirements of auditors and
other obligations imposed upon any of them by law.
9.3. BANK DEBT. Prior to December 2001, Purchaser shall pay or
cause the Company to pay to Seller 33% of any net discounts or
pardons on the principal amount of certain existing credits
granted by Bancrecer, S.A., to the Company obtained with the
direct intervention of Seller, provided however, that such
payments shall be made on the saved amount after giving
effect to any tax implications of the same and provided
further that such discounts or pardons shall be made in form
and substance satisfactory to Purchaser.
ARTICLE X
INDEMNIFICATION
10.1. AGREEMENT TO INDEMNIFY.
10.1.1. The Purchaser agrees to indemnify and hold the Seller harmless
from and against any and all monetary loss, liability,
obligation, damage, cost or expense (including, without
limitation, reasonable attorney's fees and disbursements)
incurred or suffered by or asserted against the Seller or any
of its respective Affiliates, including but not limited to
their respective officers, directors, agents and employees,
directly or indirectly as a result of or in connection with
(a) the breach by the Purchaser of any representation or
warranty made in this Agreement; or (b) the breach by the
Purchaser of, or the failure of the Purchaser to perform, any
of its covenants or obligations contained in this Agreement.
10.1.2. The Seller agrees to indemnify and hold the Purchaser and its
directors, officers, agents, employees and shareholders
harmless from and against any and all loss, liability,
obligation, damage, cost or expense (including, without
limitation, reasonable attorney's fees and disbursements)
incurred or suffered by or asserted against the Purchaser, the
Company, their Affiliates or any of their respective
directors, officers, agents, employees and shareholders,
directly or indirectly ("Losses"), as a result of or in
connection with
(a) the breach or inaccuracy of any representation or
warranty made by either Seller in this Agreement;
24
<PAGE> 25
(b) the breach by Seller, or failure of Seller, to
perform any of its covenants, conditions or
obligations contained in this Agreement;
(c) claims of employees of the Company with respect to
occupational disease or injuries with respect to
events, circumstances or conditions which existed,
arose or occurred during the period prior to the date
hereof;
(d) any third party liability claims which were made
prior to the date hereof for damages arising from
accidents, for which any of the Company is
responsible and which accidents occurred prior to the
date hereof for claims which do not exceed $1,000
Dollars and (ii) for such claims which are in excess
of $1,000 Dollars and which are listed on Exhibit
"8";
(e) third party claims or potential claims arising from
events occurring prior to the date hereof and which
are not listed on Exhibit "8";
(f) actual liability and reasonable attorney's fees paid
after the Closing in connection with the existing
fines levied by any governmental agency.
10.2. CONDITIONS OF INDEMNIFICATION. The obligations and liabilities
of the Indemnifying Party with respect to any claim, action,
suit, proceeding, tax audit, demand or liability based on or
with respect to the inaccuracy or non-performance or
non-fulfillment or breach of any representation or warranty
made by the other party contained in this Agreement or
contained in any document or certificate given in order to
carry out the transactions contemplated hereby asserted or
instituted by any third party on account of any matter giving
rise to a claim of indemnity by an Indemnified Party (a
"Claim"), shall be subject to the following terms and
conditions:
10.2.1. The Indemnified Party will give the Indemnifying Party notice
of any claim. Prior to the giving of any notice and after the
giving of any such notice, if the Indemnifying Party assumes
the defense of a Claim as provided below, the Indemnified
Party will not settle or waive, and will cause its Affiliates
not to settle or waive, any defense (including the waiver of a
statue of limitations), cause of action or counterclaim
without the prior written consent of the Indemnifying Party,
which consent shall not be unreasonably withheld.
10.2.2. Upon receipt of notice of a Claim from an Indemnified Party,
the Indemnifying Party will be entitled to assume the sole
defense thereof by representatives chosen by it; provided,
however, in the case of an audit, the auditor permits the
Indemnifying Party to do so. The Indemnifying Party shall have
the right to assert any defenses, causes of action or
counterclaims arising from the subject of the Claim available
to the Indemnified Party and its Affiliates. In the event an
Indemnifying Party is not permitted by an auditor to assume
the defense or control the conduct of an audit of returns, no
settlement with respect to any assessment may be effected
without the prior written consent of the Indemnifying Party,
which consent will not be unreasonably withheld, and the
Indemnified Party shall consult with the Indemnifying Party
concerning the
25
<PAGE> 26
progress of the audit and provide such party with copies of
all correspondence and documents in connection therewith.
10.2.3. If the Indemnifying Party, within thirty (30) days after
notice of any such Claim, fails to assume the defense thereof;
the Indemnified Party shall (upon further notice to the
Indemnifying Party) have the right to undertake the defense
or, with the consent of the Indemnifying Party not be
unreasonably withheld or delayed, the compromise or settlement
of such Claim on behalf of and for the account and risk of the
Indemnifying Party, subject to the right of the Indemnifying
Party to assume the defense of such Claim at any time prior to
the settlement, compromise or final determination thereof.
10.2.4. Anything in this Section 10.2 to the contrary notwithstanding,
the Indemnifying Party shall not, without the written consent
of the Indemnified Party (which consent shall not be withheld
unreasonably or delayed), settle or compromise any Claim or
consent to the entry of any judgment which imposes any future
obligation on the Indemnified Party or which does not include
as an unconditional term thereof giving to the Indemnified
Party a release from all liability in respect of such Claim.
Furthermore, the Indemnified Party shall reasonably assist the
Indemnifying Party with the mitigation of loss and the return
to work of any employee eligible for or drawing any
occupational injury benefits in connection with the
indemnification obligations set forth above.
10.2.5. The Indemnified Party shall, and shall cause its Affiliates
to, provide the Indemnifying Party with such assistance at the
sole cost of the Indemnifying Party as may reasonably be
requested by the Indemnifying Party in connection with any
indemnification or defense provided for herein, including,
without limitation, providing the Indemnifying Party with such
information, documents and records and reasonable access to
the services of and consultations with such personnel of the
Indemnified Party or its affiliates as the Indemnifying Party
shall deem necessary (provided that such access shall not
unreasonably interfere with the performance of the duties
performed by or responsibilities of such personnel).
10.2.6. An Indemnified Party's (1) omission to notify an Indemnifying
Party of a Claim, (2) failure to cooperate and provide
requisite access to books and records or personnel as provided
above, (3) failure to obtain the prior written consent of an
Indemnifying Party as required above with respect to
settlements or waivers of defenses, causes of actions, or
counterclaims, or (4) failure to allow an Indemnifying Party
to control a tax audit and make or consent to any settlements
relating thereto as provided above, shall release the
Indemnifying Party from any liability arising from such Claim
to the extent the Indemnifying Party has been materially
prejudiced thereby.
10.2.7. All Claims will be reduced by any insurance proceeds received
by the Indemnified Party with respect thereto.
26
<PAGE> 27
10.2.8. The obligations of any Indemnifying Party to indemnify and
hold harmless an Indemnified Party under this Agreement shall
apply whether or not any losses, claims or other liabilities
indemnified thereunder were or are caused in whole or in party
by (i) the sole, joint or concurrent negligence, fault or
breach of any other standard of conduct (whether active or
passive) by any Indemnified Party or any third party, or (ii)
any act, omission, event or condition that may subject the
indemnitee to strict liability.
10.3. REMEDIES CUMULATIVE. The remedies provided in this Article X
shall be cumulative and shall not preclude assertion by any
party hereto of any other rights or the seeking of any other
remedies against the other party hereto.
10.4. SURVIVAL OF REPRESENTATIONS. The representations, warranties
and indemnification rights and obligations of Seller contained
herein shall survive for the statute of limitation period
provided under the Laws in effect on the date hereof.
ARTICLE XI
MISCELLANEOUS
11.1. NOTICES. All notices, requests, demands and other
communications shall be in writing and shall be deemed to have
been given (a) when received, if delivered in person, or (b)
when sent, if sent by telecopier and confirmed within two (2)
business days by letter delivered to the party to be notified
at its address set forth herein, in any such case as follows:
(a) If to the Seller, to:
Mr. Jose Carral
Ave Jalisco No. 180 3rd floor
Col Tacubaya
Mexico 11870, D.F.
Fax (525) 52 72 09 94
With a copy to:
Lic. Guillermo Diaz de Rivera
Gutierrez, Diaz de Rivera y Torres, S.C.
Durango No.124
Colonia Roma
Mexico 6700, D.F.
Fax (525) 55 25 55 42
(b) If to the Purchaser, to:
Nicholas N. Carter
President
P.O. Box 1636
Silsbee, Tx 77656
Fax (001/409) 385 14 00
27
<PAGE> 28
With a copy to:
Lic. Agustin Portal Ariosa
Haynes and Boone, S.C.
Blvd. Manuel Avila Camacho No. 40-1801
Col Lomas de Chapultepec
Mexico 11000 D.F.
Fax 5 40 06 30
or at such other address(es) as any party may have advised the
other in the manner provided in this Section 11.1.
11.2. PUBLIC ANNOUNCEMENTS; CONFIDENTIALITY. The timing and text of
any announcements or statements pertaining to this Agreement
or the transactions contemplated hereby made either publicly
or to the employees of the Company prior to the Closing Date
shall be mutually agreed to by the Seller and the Purchaser.
Except as otherwise provided by law, the terms of this
Agreement and the indemnification provisions hereof shall be
kept confidential.
11.3. COMPLETE AGREEMENT. This Agreement and its Exhibits set forth
the entire agreement of the parties with respect to the
subject matter hereof and supersedes all prior agreements,
contracts, promises, representations, warranties, statements,
arrangements and understandings, if any, between the parties
hereto or their representatives. No waiver, modification,
amendment or termination of any provision, term or condition
hereof or of any its Exhibits shall be valid unless in writing
and signed by the party to be charged therewith, and any such
waiver, modification, amendment or termination shall be valid
only to the extent therein set forth. All Exhibits hereto
shall form and be construed to be an integral part hereof.
11.4. FURTHER ASSURANCES. Each of the parties hereto shall, from
time to time after the date hereof, upon the request of the
other party hereto and at the expense of such requesting
party, duly execute, acknowledge and deliver or cause to be
duly executed, acknowledged and delivered, all such further
instruments and documents reasonably requested by the other
party to further effectuate the intents and purposes of this
Agreement.
11.5. GOVERNING LAW. The validity, performance, construction,
interpretation and effect of this Agreement shall be governed
by Laws.
11.6. DISPUTE SETTLEMENT PROCEDURE. In the event of any dispute or
difference arising out of or relating to this Agreement or the
breach thereof, the disputes or differences shall be finally
and exclusively settled by arbitration in accordance with the
applicable Rules of Arbitration of the International Chamber
of
28
<PAGE> 29
Commerce. Any dispute or difference between the parties hereto
will be referred to the arbitration of three (3) persons, one
(1) to be appointed by each of the parties hereto and the
remainder to be chosen by the two (2) so appointed. If either
of the parties fails to appoint an arbitrator and has been
notified by the other party in writing of the appointment and
of the matter in dispute to be dealt with, the decision of the
arbitrator appointed by the first of the parties will be final
and binding on both of the parties hereto. The decision of the
three (3) arbitrators so appointed, or a majority of them,
will be final and binding upon the parties hereto. All costs
and expenses of any such arbitration will be borne by the
parties hereto as determined by the arbitrators. The
arbitration shall take place at Mexico City, Mexico. All
arbitration proceedings and the arbitration award shall be in
English. Judgment upon the award rendered may be entered into
any court having jurisdiction, or application may be made to
such court for a judicial recognition of the award or an order
of enforcement thereof, as the case may be.
11.7. BINDING EFFECT. This Agreement shall be binding upon and inure
to the benefit of the parties hereto and their respective
successors and assigns. Neither party hereto may delegate its
obligations hereunder without the prior written consent of the
other party, which consent shall not be unreasonably withheld;
provided that such delegating party shall not be relieved of
its obligations hereunder. The parties hereto shall be
permitted to assign any of their rights under this Agreement
without the prior written consent of the other party.
11.8. SEVERABILITY. Any provisions of this Agreement which may be
determined by competent authority to be prohibited or
unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition
or unenforceability without invalidating the remaining
provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or
render unenforceable such provision in any other jurisdiction.
11.9. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original and
all of which taken together shall constitute a single
agreement.
11.10. CAPTIONS. The captions appearing in the Agreement are inserted
only as a matter of convenience and for reference and shall in
no way affect the interpretation or construction of this
Agreement or any of the provisions hereof.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered as of the date first above written.
29
<PAGE> 30
PURCHASER SELLER
Texas Oil & Chemical Co. II Spechem, S.A. de C.V.
/s/ NICHOLAS N. CARTER /s/ JOSE CARRAL
---------------------------- ---------------------------------
By: Nicholas N. Carter By: Jose Carral
Title: President Title: Chairman of the Board
/s/ PASCUAL ARANALDE BLANNO
---------------------------------
By: Pascual Aranalde Blanno
Title: Board Member
30
<PAGE> 31
ESCROW AGREEMENT
This Escrow Agreement dated as of the 25th day of January 2000, between
Spechem, S.A. de. C.V. (referred to as the "Seller") and Texas Oil & Chemical
Co. II, Inc. (the "Purchaser").
RECITALS:
A. Seller and Purchaser have entered into a Stock Purchase Agreement
dated January 25th, 2000 (the "Agreement"), a copy of which is attached to this
Agreement in EXHIBIT "A" pursuant to which Purchaser is acquiring ninety-two
(92%) percent of the outstanding capital stock of Productos Quimicos Coin, S.A.,
de C.V. (the "Company").
B. This Escrow Agreement creates an escrow fund to secure Seller's
agreement, covenants and obligations as specified in the Agreement.
IN CONSIDERATION of the promises and agreements of Seller and Purchaser
and for other good and valuable consideration, the receipt of which is
acknowledged, Seller and Purchaser agree as follows:
ARTICLE I
ESCROW FUNDS
1.01. Contemporaneous with the Closing of the Agreement, the amount of
TWO HUNDRED TWENTY FIVE THOUSAND ($225,000.00) AND NO/100 DOLLARS (U.S.) (the
"Escrowed Funds") in a bank check from the Purchaser shall be delivered, in
escrow to the Escrow Agent (as defined herein) to secure Seller's agreement,
covenants and obligations specified in the Agreement.
1.02. The Escrowed Funds are to be retained by the Escrow Agent as an
Escrow Trustee pursuant to the terms of this Escrow Agreement, and the Escrowed
Funds may be dispersed only in accordance with Article II of this Escrow
Agreement.
ARTICLE II
DUTIES OF THE ESCROW AGENT
2.01. The Escrow Agent shall receive the Escrowed Funds pursuant to the
terms of this Escrow Agreement.
2.02. The Escrow Agent shall distribute the Escrowed Funds only in
accordance with joint written instructions signed by both Seller and Purchaser.
On disbursement of all the Escrowed Funds, this Escrow Agreement shall
terminate.
<PAGE> 32
ARTICLE III
TERM OF THE ESCROW AGREEMENT
3.01. The Escrow Agent is hereby authorized and instructed to hold the
Escrowed Funds in escrow until the earlier of the following dates or events:
1) written instructions from both Seller and Purchaser that all
obligations, covenants and agreements of Seller have been
satisfied; or
2) the expiration of ninety (90) days from the date of this
Escrow Agreement.
3.02. This Escrow Agreement shall not be terminated, revoked, rescinded
or modified in any respect without the prior written approval of both Seller and
Purchaser.
3.03. The Escrow Agent shall be obligated only the performance of the
duties that are specifically set forth in this Escrow Agreement and may rely on
the performance of these duties. The Escrow Agent shall be protected in acting
or refraining from acting on any instrument believed to be genuine and to have
been signed or presented by the proper party or parties. The Escrow Agent shall
not be liable for any action taken or omitted in good faith and believed to be
authorized by this Escrow Agreement nor for any action taken or omitted in
accordance with the advice of the Escrow Agent's counsel.
3.04. The Escrow Agent shall have no liability under, or duty to
inquire into the terms and provision of, the Agreement. It is agreed that the
Escrow Agent's duties are purely ministerial in nature and that the Escrow Agent
shall incur no liability whatsoever except for willful misconduct or gross
negligence so long as the Escrow Agent has acted in good faith. The Escrow Agent
shall not be bound by any modification, amendment, termination, cancellation,
rescission, or suppression of this Escrow Agreement unless it is in writing and
signed by all of the parties to this Escrow Agreement and, if the Escrow Agent's
duties are affected in any way, unless the Escrow Agreement has given prior
written consent to any such agreement.
ARTICLE 4
MISCELLANEOUS
4.01. This Escrow Agreement shall be binding on and inure to the
benefit of the parties to this Escrow Agreement and their respective successors
and permitted assigns. No other persons shall have any rights under this Escrow
Agreement.
4.02. Any litigation costs and expenses under this Escrow Agreement
shall be paid by the party obligation for the costs of litigation under the
Agreement.
4.03. A successor Escrow Agent may be appointed at any time by the
mutual written agreement of Purchaser and Seller.
Page 2
<PAGE> 33
4.04. The Escrow Agent agrees to hold the assets of the Escrow Fund as
a trustee in a segregated and separate account, outside of the reach of its
general creditors.
4.05. Any notice, statement, or other communication that is required or
that may be given under the terms of this Escrow Agreement shall be in writing
and shall be sufficient in all respects if properly addressed and delivered
personally or by mail, postage prepaid, as follows:
(a) If to the Seller, to:
Mr. Jose Carral
Ave Jalisco No. 180 3rd floor
Col Tacubaya
Mexico 11870, D.F.
Fax (525) 52 72 09 94
With a copy to:
Lic. Guillermo Diaz de Rivera
Gutierrez, Diaz de Rivera y Torres, S.C.
Durango No.124
Colonia Roma
Mexico 6700, D.F.
Fax (525) 55 25 55 42
(b) If to the Purchaser, to:
Nicholas N. Carter
President
P.O. Box 1636
Silsbee, Tx 77656
Fax (001/409) 385 14 00
If to Escrow Agent:
Lic. Agustin Portal Ariosa
Haynes and Boone, S.C.
Blvd. Manuel Avila Camacho No.40--1801
Col Lomas de Chapultepec
Mexico 11000 D.F.
Fax 5 40 06 30
or to any other address that any party shall designate in writing to the other
parties in accordance with this provision.
Page 3
<PAGE> 34
4.06. This Escrow Agreement shall be governed by and construed in
accordance with the laws of the State of Texas.
The parties to this Escrow Agreement have duly executed this Agreement
as of the date first written above.
Texas Oil & Chemical Co. II Spechem, S.A. de C.V.
/s/ NICHOLAS N. CARTER /s/ JOSE CARRAL
------------------------------------ ---------------------------
By: Nicholas N. Carter By: Jose Carral
Title: President Title: Chairman of the Board
HAYNES AND BOONE, S.C. /s/ PASCUAL ARANALDE BLANNO
---------------------------
By: Pascual Aranalde Blanno
/s/ AGUSTIN PORTAL Title: Board Member
------------------------------------
By: Agustin Portal
Title: Partner
Page 4
<PAGE> 35
TITULO NUMERO I NUMERO DE ACCIONES 45'850,279
CAPITAL VARIABLE
PRODUCTOS QUIMICOS COIN, S.A. DE C.V.
DURACION: 99 ANOS
DOMICILIO: MEXICO, D.F.
CAPITAL MINIMO FIJO: $100,000.00
TOTALMENTE SUSCRITO Y PAGADO.
CAPITAL VARIABLE: $49'845,955.00
TOTALMENTE SUSCRITO Y PAGADO.
El presente Titulo se expide en favor de SPECHEM, S.A. DE C.V. de nacionalidad
mexicana, con domicilio en la Ciudad de Mexico coma titular de 45'850,279
(CUARENTA Y CINCO MILLONES OCHOCIENTOS CINCUENTA MIL DOSCIENTOS SETENTA Y NUEVE)
acciones ordinarias, nominativas, con un valor nominal de $1 (UN PESO 00/100
M.N.) de las 49'845,955 acciones representativas del capital variable de la
sociedad.
La sociedad se constituyo mediante escritura publica numero 8211 de fecha 23 de
noviembre de 1987, otorgada ante la fe del Licenciado Rogelio Magana Luna,
Notario Publico numero 156 de Mexico, D.F. la cual se encuentra debidamente
inscrita en el Registro Publico de Comercio del Distrito Federal, bajo el Folio
Mercantil numero 103348 de fecha 14 de marzo de 1988.
Mexico, D.F., 5 de noviembre de 1999.
/s/ JOSE CARRAL /s/ PASCUAL ARANALDE BLANNO
------------------------ -------------------------
CONSEJERO CONSEJERO
"TODO EXTRANJERO QUE EN EL ACTO DE LA CONSTITUCION O EN CUALQUIER TIEMPO
ULTERIOR ADQUIERA UN INTERES O PARTICIPACION SOCIAL EN LA SOCIEDAD SE
CONSIDERARA POR ESE SIMPLE HECHO COMO MEXICANO RESPECTO DE UNO Y OTRO Y SE
ENTENDERA QUE CONVIENE EN NO INVOCAR LA PROTECCION DE SU GOBIERNO, BAJO LA PENA,
EN CASO DE FALTAR A SU CONVENIO DE PERDER DICHO INTERES O PARTICIPACION EN
BENEFICIO DE LA NACION MEXICANA".
<PAGE> 36
Endoso 45,850,279 aciones representadas por este titulo definitivo de
Acciones en favor de: Texas Oil & Chemical Co. II, Inc.
De Nacionalidad: Norteamericana
Mexico, D.F. a 25 de enero de 2000
Spechem, S.A. de C.V.
/s/ JOSE CARRAL
-----------------------------------
Por: Jose Carral
Cargo: Chairman of the Board
/s/ PASCUAL ARANALDE BLANNO
-----------------------------------
Por: Pascual Aranalde Blanno
Cargo: Board Member
<PAGE> 37
The undersigned, Jose Carral and Pascual Aranalde Blanno in our capacity of
Chairman and Board member, respectively of Spechem, S.A. de C.V., hereby
certify, on behalf of such company, that no consents are required to be obtained
in order to carry out the transactions contemplated in the Stock Purchase
Agreement, dated as of the 25th day of January 2000, between Spechem, S.A. de.
C.V., and Texas Oil & Chemical Co. II, Inc.
We further certify that execution, delivery and performance of such Agreement by
Spechem, S.A. de. C.V., have been duly authorized by all required corporate
action on the part of Spechem, S.A. de. C.V., and that such Agreement contains
the legal, valid and binding obligations of Spechem, S.A. de. C.V., enforceable
against it in accordance with its terms.
Mexico City January 25, 2000
Spechem, S.A. de C.V.
/s/ JOSE CARRAL
-------------------------------
By: Jose Carral
Title: Chairman of the Board
/s/ PASCUAL ARANALDE BLANNO
-------------------------------
By: Pascual Aranalde Blanno
Title: Board Member
<PAGE> 38
TITULO NUMERO 1 NUMERO DE ACCIONES 99,999
CAPITAL MINIMO FIJO
PRODUCTOS QUIMICOS COIN, S.A. DE C.V.
DURACION: 99 ANOS
DOMICILIO: MEXICO, D.F.
CAPITAL SOCIAL: MINIMO FIJO: $100,000.00
TOTALMENTE SUSCRITO Y PAGADO.
El presente Titulo se expide en favor de SPECHEM, S.A. DE C.V. de nacionalidad
mexicana, con domicilio en la Ciudad de Mexico como titular de 99,999 (NOVENTA Y
NUEVE MIL NOVECIENTOS NOVENTA Y NUEVE) acciones ordinarias, nominativas, con un
valor nominal de $1 (UN PESO 00/100 M.N.) de las 100,000 acciones
representativas del capital minimo fijo de la sociedad.
La sociedad se constituyo mediante escritura publica numero 8211 de fecha 23 de
noviembre de 1987, otorgada ante la fe del licenciado Rogelio Magana Luna,
Notario Publico numero 156 de Mexico, D.F. la cual se encuentra debidamente
inscrita en el Registro Publico de Comercio del Distrito Federal, bajo el Folio
Mercantil numero 103348 de fecha 14 de marzo de 1988.
Mexico, D.F., 5 de noviembre de 1999.
/s/ JOSE CARRAL /s/ PASCUAL ARANALDE BLANNO
------------------------ -------------------------
CONSEJERO CONSEJERO
"TODO EXTRANJERO QUE EN EL ACTO DE LA CONSTITUCION O EN CUALQUIER TIEMPO
ULTERIOR ADQUIERA UN INTERES O PARTICIPACION SOCIAL EN LA SOCIEDAD SE
CONSIDERARA POR ESE SIMPLE HECHO COMO MEXICANO RESPECTO DE UNO Y OTRO Y SE
ENTENDERA QUE CONVIENE EN NO INVOCAR LA PROTECCION DE SU GOBIERNO, BAJO LA
PENA,EN CASO DE FALTAR A SU CONVENIO DE PERDER DICHO INTERES O PARTICIPACION
EN BENEFICIO DE LA NACION MEXICANA".
<PAGE> 39
Endoso 99,999 aciones representadas por este titulo definitivo de
Acciones en favor de: Texas Oil & Chemical Co. II, Inc.
De Nacionalidad: Norteamericana
Mexico, D.F. a 25 de enero de 2000
Spechem, S.A. de C.V.
/s/ JOSE CARRAL
---------------------------------
Por: Jose Carral
Cargo: Chairman of the Board
/s/ PASCUAL ARANALDE BLANNO
---------------------------------
Por: Pascual Aranalde Blanno
Cargo: Board Member