Exhibit 10.2
STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT ("Agreement') is made and entered into as
of January 22, 1998, by and between Costa Rica International, Inc., a
corporation organized under the laws of the State of Nevada (the "Buyer"),
Comercial Angui, S.A. a corporation, organized under the laws of the Republic of
Costa Rica, corporate identification card number 3-101-049922 (the "Seller").
WITNESSETH:
WHEREAS, the Seller owns approximately ninety-five percent (95%) of the
issued and outstanding shares of Corporacion As de Oros, S.A. (the "Company"),
and seventy-five percent (75%) of the total issued and outstanding voting stock
of the Company is held in a trust ("Trust");
WHEREAS, the Company has authorized a total of two million (2,000,000)
shares of common stock, par value one thousand Colones (Colones 1,000) per
share, of which one million, five hundred thousand (1,500,000) shares are issued
and outstanding, and has authorized a total of one million, seven hundred
thousand (1,700,000) shares of preferred stock, par value one thousand Colones
(Colones 1,000) per share, of which one hundred fifty-eight thousand, three
hundred (158,300) shares are issued and outstanding; and
WHEREAS, the Seller desires to sell, convey, transfer, assign and
deliver to the Buyer the issued and outstanding shares of common and preferred
stock of the Company, which represent fifty one percent (51%) of the issued and
outstanding voting shares of common stock of the Company, all of which are owned
by the Seller (collectively, the "Shares"), upon and subject to the terms,
covenants and conditions herein set forth;
NOW THEREFORE, for and in consideration of the premises and the mutual
covenants herein contained and other good and valuable consideration, the
receipt and sufficiency of which are hereby conclusively acknowledged, the
parties hereto hereby agree as follows:
ARTICLE I
1.1 SALE AND PURCHASE OF SHARES: Subject to the terms of this
Agreement, the Seller agrees to sell, assign, transfer and convey the Shares to
the Buyer, free and clear of any liens, security interests, encumbrances and
restrictions of any kind whatsoever, and the Buyer agrees to purchase the Shares
from the Seller. The sale, assignment, transfer and conveyance of the Shares by
the Seller to the Buyer shall be effected on or before April 30, 1998 by the
Seller's delivery to the Buyer of the certificates therefore duly endorsed for
transfer or accompanied by stock powers duly executed in blank, as necessary to
effectively vest in the Buyer all of the right, title and interest of the Seller
in and to the Shares and by the execution of a firm entry in the Shareholders
Registry Book of the Company.
1.2 PURCHASE PRICE AND PAYMENT: In consideration of the sale,
assignment, transfer, conveyance and delivery of the Shares by the Seller to the
Buyer, and in reliance upon the representations, warranties and covenants made
herein by the Seller, as consideration in the aggregate of five million dollars
(US$5,000,000.00) (the "Purchase Price"), the Buyer shall deliver to the Seller
at the Closing (as such term is defined herein): (i) an amount equal to two
million four hundred thousand dollars (US$2,400,000.00) payable in an
interest-free promissory note to mature on January 22, 2000 executed by the
Buyer in favor of the Seller in the aggregate principal amount of
US$2,400,000.00 (the "Note"); and (ii) 2,477,058 shares of Costa Rica
International, Inc. at a price of US$1.0625 per share, once the United States
Securities and Exchange Commission ("SEC") approves the issuance of such shares,
or as the parties may agree in writing.
ARTICLE II
2.1 The transfer and delivery to be made pursuant to this Agreement
(the "Closing") shall take place in Nassau, Bahamas on April 30, 1998, or such
other time and date as may be mutually agreed upon by the Seller and the Buyer
(the "Closing Date").
2.2 OBLIGATIONS OF THE SELLER AT THE CLOSING: At the Closing, the
Seller shall: (i) deliver to the Buyer certificates representing the Shares,
duly endorsed for transfer in blank, or accompanied by stock powers duly
executed in blank, and (ii) a shareholders' corporate book entry reflecting the
transfer of the Shares to the Buyer.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE SELLER
The Seller hereby makes the following representations and warranties to
the Buyer, each of which shall be deemed material (and the Buyer, in executing,
delivering and consummating this Agreement, has relied and will rely upon the
correctness and completeness of each such representations and warranties
notwithstanding any independent investigation by the Buyer and/or the Buyer's
officers, directors, employees, representatives, agents and/or advisors):
3.1 ORGANIZATION AND EXISTENCE; AUTHORIZATION; ENFORCEABILITY.
(a) ORGANIZATION OF THE COMPANY, GOOD STANDING. The
Company is a corporation duly incorporated, validly
existing and in good standing under the laws of the
Republic of Costa Rica with full corporate power and
authority to own, lease and operate its properties
and assets. The Seller has delivered to the Buyer
true, correct and complete copies of the Articles of
Incorporation and By-laws of the Company.
(b) AUTHORIZATION. The Company has full corporate power,
authority and capacity to enter into this Agreement
and the agreements, documents and instruments
contemplated hereby and perform its obligations
hereunder and thereunder. The execution, delivery and
performance of this
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Agreement and all other agreements and transactions
contemplated hereby have been duly authorized by the
Board of Directors and the shareholders of the
Company if necessary, and no other corporate
proceedings on its part are necessary to authorize
this Agreement and the transactions contemplated
hereby.
(c) NO CONFLICTS. The execution, delivery and performance
of this Agreement by the Seller will not contravene,
conflict with, or result in a violation or breach of
any provision of, or give any person or entity the
right to declare a default or exercise any remedy
under, or to accelerate the maturity or performance
of, or to cancel, terminate or modify any contract to
which the Seller or the Company is a party or by
which the assets of the Company are bound, including
that certain trust agreement executed between the
Company and its creditors..
3.2 LITIGATION. To the best of the Seller's knowledge, there is no
litigation or other actions, suits, proceedings or investigations pending, at
law or in equity, or before any governmental department, commission, board,
agency or instrumentality, or, to the best of the Seller's knowledge,
threatened, in connection with respect to the transactions contemplated hereby.
To the best of the Seller's knowledge, no event has occurred or circumstance
exists that may give rise or serve as the basis for commencement of any such
action, suit, investigation or other proceeding.
3.3 FINANCIAL STATEMENTS. The Seller has presented or will present to
the Buyer within forty (40) days of the date first written above the balance
sheets of the Company at December 31, 1997 the related unaudited income
statements, unaudited statements of stockholder's equity and statements of
changes in financial position for the fiscal years ended 1997, in each case
including the notes thereto, if any (collectively, the "Financial Statements").
The Company's balance sheets (including the notes thereto) fairly present the
financial position of the Company as of the respective dates thereof, and the
other financial statements referred to herein (including the notes thereto)
fairly present the results of operations and the financial position of the
Company for the respective fiscal periods or as of the respective dated therein
set forth. Each of such statements (including the notes thereto) has been
prepared in accordance with United States generally accepted accounting
principles, consistently applied, and do not and will not fail to disclose any
material, extraordinary or out-of-period items. The books and records of the
Company have been and are being, maintained in all material respects in
accordance with applicable legal and accounting requirements and reflect only
actual transactions, and the Financial Statement been prepared in accordance
with such books and records.
3.4 ABSENCE OF CERTAIN CHANGES OR EVENTS. There has not been any
adverse change in the business, operations, properties, assets or financial
condition of the Company from that described in the Financial Statements as of
April 30, 1998. No fact or condition of any character exists or will exist on
the Closing Date that the Seller believes will cause such an adverse change in
the future as a result of occurrences, acts or omissions prior to the Closing
Date.
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3.5 TAX MATTERS. The Company has duly filed all information returns,
tax returns and reports required by any jurisdiction to be filed by it on or
prior to the date hereof (including without limitation estimated tax returns and
returns with respect to employee or employment-related taxes). Such returns are
accurate and complete in all respects. The Company has duly paid all tax
assessments, fees, penalties, interest and other governmental charges that have
been incurred or are due or claimed to be due from it by any municipal, state,
local, foreign or other taxing authorities on or prior to the date of this
Agreement (including without limitation those due in respect to its properties,
income, business, capital stock, distribution on dividends, deposits, licenses,
sales, payroll, unemployment insurance, retirement, social security and
occupational disability, as applicable). To the extent that any taxes may be due
from the Company for any period prior to the Closing, such taxes will have been
paid prior to the Closing Date. There are no tax liens of any kind or nature
upon the properties or assets of the Company, and there are no disputes pending
or claims asserted for taxes upon the Company or with respect to any of the
assets of the Company. No income, excise, sales and/or municipal, state, local,
foreign or other tax returns are currently being audited by the appropriate
taxing authorities, and all prior audits have been concluded and resolved.
3.6 PROPERTY-TITLE AND LEASES. The Company has good, valid and
marketable title, free and clear of any and all Liens, claims, encumbrances,
charges, defaults, equities, asements, rights of way, building or use
restrictions, exceptions, variances or other limitations of whatever kind or
character to all of the real property and all other property owned by it, except
property and assets disposed of in the ordinary course of business in accordance
with the terms of this Agreement and for no less than fair market value. All
buildings, fixtures, equipment and other property and assets held under leases
or subleases by the Company with third parties are held under valid instruments
enforceable in accordance with their terms, except as enforceability may be
limited by applicable bankruptcy Laws. The Company is the lessee or sublessee in
possession under each lease or sublease to which it is a lessee or sublessee.
All rentals due by the Company under each such lease or sublease have been paid,
and there is no default or any event or condition which, with the giving of
notice, lapse of time or occurrence or any further event or condition, would
become a default under any such lease or sublease, and the Company is entitled
to possession and quiet enjoyment of all such leased properties in accordance
with the terms of such instruments. All operating facilities, buildings,
furniture, equipment and other tangible property owned or used by the Company
are in good operating condition and repair. Such tangible properties and all
fixtures and improvements to real property owned or leased by the Company, and
the use thereof, conform in all respects with all applicable building, zoning,
environmental and other requirements, and do not materially encroach in any
respect on property of others. All necessary occupancy and other certificates
and permits for the occupancy and lawful use thereof and of the equipment and
furnishings therein have been issued and are in full force and effect and no
current use of any assets of the Company is dependent on a nonconforining use or
other permit which materially limit the Company's use thereof.
3.7 RECEIVABLES. The Company shall not have accounts payable in
excess of an amount to be determined subsequent to the Buyer's due diligence and
satisfactory to the Buyer. All accounts and notes receivables reflected in, or
arising since the date of the most recent balance sheet, are included in the
financial Statements, all of which are owned by the Company
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free and clear of all Liens and have either been collected or are collectible
and will be collected in the ordinary course of business, except for bad debt
duly noted and approved by the Company.
3.8 INSURANCE. The Company maintains insurance policies and bonds in
force in such amounts and against such liabilities and hazards as are
customarily maintained by companies engaged in a business similar to its
Business. The Company is not liable for any material retroactive premium
adjustments. All premiums due on such policies have been paid and all such
policies are enforceable and in full force and effect, and the Company has not
received any notice of premium increases or cancellations.
3.9 INTANGIBLE PERSONAL PROPERTY. The Company validly holds and
possesses all patents, trademarks, service marks, copyrights, trade or corporate
names and licenses (collectively, "Intangible Rights") which are required and
necessary for the Company to conduct its business as presently conducted. The
Company is the sole and exclusive owner of and has the unrestricted right to
use, each of the Intangible Rights. No claims or demands have been asserted
against the Company with respect to any of the Intangible rights and no
proceedings have been instituted, are pending or have been threatened which
challenge the rights of any of the Companies with respect thereto.
3.10 COMPLIANCE WITH LAWS. The Company has conducted and is conducting
its business in compliance with all applicable legal requirements. Additionally,
the Company has not been and is not in violation of any permit, authorization,
concession, agreement, contract, corporate document or other legally enforceable
obligation.
3.11 NO MISREPRESENTATIONS. None of the information contained in the
representations and warranties set forth in this Agreement, or in any of the
documents, certificates or instruments delivered or to be delivered to any other
party prior to or after the execution hereof as required or permitted by any
provision of this Agreement, contains or will contain any untrue statement of a
material fact or omits or will omit to state a material fact necessary to make
the statements contained herein or therein not misleading as of the date hereof
and as of the Closing.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF THE BUYER
To induce the Seller to enter into this Agreement and to consummate the
sale of the shares, the Buyer represents, warrants, covenants and agrees as
follows:
4.1 1 ORGANIZATION AND EXISTENCE; AUTHORIZATION; ENFORCEABILITY.
(a) ORGANIZATION OF THE COMPANY; GOOD STANDING. The Buyer
is a corporation duly organized, validly existing and
in good standing under the laws of the State of
Nevada, with full corporate power and authority to
own, lease or operate its properties and assets. The
Buyer has the corporate power and authority, has
taken all action necessary and has obtained all
necessary
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permits in order to execute and deliver this
Agreement and to consummate the transactions
contemplated hereby.
(b) AUTHORIZATION, ETC. The Buyer has full corporate
power, authority and capacity to enter into this
Agreement and to carry out the transactions
contemplated hereby. The Board of Directors of the
Buyer has duly authorized the execution, delivery and
performance of this Agreement, and the other
agreements and transactions contemplated hereby, and
on or before the closing date, the Company shall have
held stockholders' meetings whereby such stockholders
approved the consummation of the transaction
contemplated herein.
(c) ENFORCEMENT, ETC. This Agreement is a valid and
binding agreement of the Buyer enforceable in
accordance with its terms, subject, as to
enforceability, to bankruptcy, insolvency, fraudulent
transfer, reorganization moratorium and similar laws
of general applicability relating to or affecting
creditor's rights and to general equity principles.
This Agreement and ail of the provisions hereof shall
be binding upon and inure to the benefit of the Buyer
and any successor of the Buyer by way of
reorganization, merger, or consolidation and any
assignee of all or substantially all of its business
and assets.
(d) NO CONFLICT. The execution, delivery and performance
of this Agreement by the Buyer does not and will not
violate or constitute a breach of or default under
any legal requirement or order of any governmental
entity to which the Buyer is subject or under any
agreement or instrument of the Buyer, or to which the
Buyer is subject or is a party or by which the Buyer
is otherwise bound.
(e) LITIGATION. There is no litigation or other actions,
suits, proceedings or investigations pending, or, to
the Buyer's knowledge, threatened, at law or in
equity, or before any governmental entity, against
the Buyer that challenge, or may have the effect of
interfering with, any of the transactions
contemplated hereby.
ARTICLE V
CERTAIN AGREEMENTS AND COVENANTS OF THE PARTIES
Each and every obligation of the Buyer under this Agreement shall be
subject to the satisfaction by the Seller, on or before the Closing Date, of
each of the following conditions unless waived in writing by the Buyer:
5.1 ORDINARY COURSE. From the date hereof until April 30, 1998, unless
the prior written consent of the Buyer is first obtained, the Seller will use
his best efforts to preserve the value of the Company's assets and the business
organizations of the Company intact, to preserve
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the goodwill of customers and others having business relations with the Company,
to maintain its properties in good repair, working order and condition, to
comply with all laws applicable to it and the conduct of its business, to keep
in force all licenses, permits and authorizations held by the Company necessary
or desirable for the conduct of the Company's business, to keep in force at not
less than their present limits, all policies of insurance, and to make no
material change in the customary terms and conditions.
5.2 NOTICE; REPRESENTATIVE. Seller will promptly give written notice to
Buyer upon becoming aware of any event or the impending or threatened occurrence
of any event which would cause or constitute a breach of any of its
representations and warranties contained or referred to in this Agreement, and
will use its best efforts to prevent the same or remedy the same promptly. The
Seller shall promptly notify the Buyer of any material change in the normal
course of business, operation or properties of the Company, or of any
governmental complaints, investigations or hearings (or communications
indication that the same may be contemplated), or the institution or threat of
litigation, and shall keep the Buyer fully informed of any and all such events.
5.3 ACTIONS; FURTHER ASSURANCES. Subject to the terms and conditions of
this Agreement, the Seller undertakes and agrees to (i) in good faith, take all
steps that are within its power to cause to be fulfilled those of the conditions
precedent to Buyer's obligations to consummate the transactions contemplated
hereby that are dependent upon Seller's actions and (ii) use his best efforts to
take, or cause to be taken, all action and to do, or cause to be done, all
things necessary, proper or advisable under applicable laws to consummate and
make effective the transactions contemplated by this Agreement and not to take
any actions which would be inimical to such result. In case at any time after
the Closing Date any further action is necessary or desirable to carry out the
purposes of any such agreements, Seller or the proper agents of Seller shall
take all such necessary action. In addition, the Seller shall at all times
cooperate with the Buyer and the Company to assists them in obtaining refunds,
due the Company as a result of any tax benefits granted to the Company.
5.4 NON-SOLICITATION. The Seller shall not take any actions to seek,
encourage, solicit or support any inquiry, proposal, expression of interest or
offer from any other person or entity in connection with or with respect to an
acquisition, combination or similar transaction, involving the Company and/or
the Shares or a substantial portion o the assets of the Company, and the Seller
will promptly inform the Buyer of the existence of any such inquiry, proposal,
expression of interest or offer and shall not, without the prior written consent
of the Buyer furnish any information to or participate in any discussions or
negotiations with, any other entity, person or group (other than the Buyer and
its agents and representatives) regarding same. Neither the Seller nor the
Company shall accept any inquiry, proposal, expression of interest or offer,
execute any agreement, or enter into or consummate any transaction with respect
to any of the foregoing and the Seller shall take all actions necessary to
ensure that the company does not take any such action.
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ARTICLE VI
CONDITIONS TO THE OBLIGATIONS OF THE BUYER
Each and every obligation of the Buyer under this Agreement shall be
subject to the satisfaction by the Seller, on or before the Closing Date, of
each of the following conditions unless waived in writing by the Buyer:
6.1 REPRESENTATIONS AND WARRANTIES. The representations and warranties
of the Seller contained in Article III and elsewhere in this Agreement and all
information contained in any exhibit, certificate, schedule or attachment hereto
or in any writing delivered by or on behalf of, the Seller or the Company to the
Buyer, shall be true and correct when made, and shall be true in all material
respect at and as of the Closing Date. The Seller and the Company shall have
performed and complied with all agreements, covenants and conditions and shall
have made all deliveries required by this Agreement to be performed delivered
and complied with by them prior to the closing Date.
6.2 NO PENDING OR THREATENED LEGAL CLAIM. No (i) litigation of any kind
shall be pending or threatened; (ii) preliminary or permanent injunction or
other order issued by any court of competent jurisdiction or by any federal or
state governmental or regulatory body; or (iii) statute, rule, regulation or
executive order promulgated or enacted by any federal or state governmental
authority after the date of this Agreement, which has or could have a material
adverse effect on the business, properties, prospects or condition, financial or
otherwise, of the Company, prohibits the consummation of the transactions
contemplated by this Agreement, or affects in any way the Seller's title to the
Shares or the Seller's ability to transfer the Shares to the Buyer in accordance
with the terms of this Agreement, shall be in effect pending or threatened.
6.3 NO MATERIAL ADVERSE CHANGE. No material adverse change in the
operations, the business, the financial condition or prospects of the Company
shall have occurred, no fact shall have arisen which has or reasonably could be
expected to have a material adverse effect on the Company, or its properties,
assets or the consummation of the transactions contemplated hereby, in each case
in the sole discretion of the Buyer.
6.4 DUE DILIGENCE. The Seller shall have provided the Buyer under the
terms and conditions of the letter of intent and confidentiality agreement, both
dated September 18, 1997 (the "Agreements") with access to the Company's
business, records and any information which the Buyer deemed necessary, in its
sole discretion, to conduct a satisfactory due diligence examination, pursuant
to which the Buyer may, among other things has, (i) evaluated the Company, its
assets and liabilities, (ii) satisfied itself, in its sole and absolute
discretion, that the Company's Assets were free of all Liens except as disclosed
to the Buyer, (iii) satisfied itself, in its sole and absolute discretion, that
the Company does not have any debt, liabilities or other obligations, whether
absolute, contingent or otherwise which has not been disclosed in writing by the
Seller and (iv) satisfied itself, in its sole and absolute discretion, that the
Company's licenses, permits and authorizations required for the Company to
operate its business. Such due diligence
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was completed by the Buyer fifteen (15) days before the execution of this
Agreement (the "Due Diligence Period").
6.5 SHARE CERTIFICATES AND OTHER DOCUMENTS. The Seller shall have
delivered to the Buyer certificates evidencing the shares duly endorsed for
transfer or accompanied by stock powers duty executed in blank. The Buyer shall
have received from the Seller, an executed entry in the Shareholders Registry
Book and evidence of having complied with, or obtained a waiver from, the terms
of the above-mentioned trust agreement, and any and all such other documents and
instruments, duly executed where required or appropriate, as it may reasonably
request in connection with the transaction contemplated by this Agreement.
6.6 OPINION OF SELLER'S COUNSEL. The Sellers shall have delivered an
opinion of counsel in a form reasonably satisfactory to the Buyer in the form of
Exhibit B hereto.
6.7 CORPORATE ACTION. The Company's Board of Directors shall have
approved the transactions contemplated by this Agreement if such approval is
necessary under the Company's Articles of Incorporation or By-laws.
ARTICLES VII
CONDITIONS TO THE OBLIGATION OF THE SELLER
Each and every obligation of the Seller under this Agreement shall be
subject to the satisfaction by the Buyer, on or before April 30, 1998 of the
following conditions, unless waived in writing by the Seller:
7.1 REPRESENTATIONS AND WARRANTIES. The representations and warranties
of the Buyer contained in Article IV and elsewhere in this Agreement and all
information contained in any exhibit certificate, schedule or attachment hereto
or in any writing delivered by or on behalf of the Buyer to the Seller shall be
true and correct when made, and shall be true in all material respects at and as
of April 30, 1998. The Buyer shall have performed and complied with all
agreements, covenants, and conditions and shall have made all deliveries
required by this Agreement to be performed, delivered and complied with by them
prior to the Closing Date.
7.2 COVENANTS PERFORMED. All of the covenants, terms and conditions of
this Agreement to be complied with and performed by the Buyer on or before the
Closing Date shall have been duly complied and performed.
7.3 PURCHASE PRICE. The Buyer shall have delivered to the Seller the
Purchase Price in accordance with Section 2.1 of this Agreement.
ARTICLE VIII
INDEMNIFICATION
8.1 OBLIGATIONS OF THE BUYER. The Buyer agrees to defend, indemnify and
hold harmless the Seller from, against and in respect of any and all demands,
claims, actions or causes
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of actions, losses, liabilities, damages, assessments, deficiencies, taxes, cost
and expenses, including without limitation interest, penalties and reasonable
attorney's fees and expenses (collectively "Claims"), asserted against, imposed
upon or paid, incurred or suffered by the Seller as a result of arising from, in
connection with or incident to any material breach or material inaccuracy of any
representation, warranty, covenant or agreement of the Buyer in this Agreement
or in any document, certificate or other instrument related hereto.
8.2 OBLIGATIONS OF THE SELLER. The Seller agrees to defend, indemnify
and hold harmless the Buyer from, against and in respect of any and all claims
asserted against, imposed upon or paid, incurred or suffered by the Buyer as a
result of, arising from, in connection with or incident to (i) any breach or
inaccuracy of any representation, warranty, covenant or agreement of the Seller
in this Agreement, or in any document, certificate or other instrument related
hereto, (ii) the inability, failure or refusal of Seller to act in good faith in
respect of this Agreement, or the transactions, agreements, documents and
instruments delivered herewith or contemplated hereby, at any time from the date
of this Agreement until the later in time of (a) the Closing Date or (b) the end
of the Due Diligence Period and (iii) any which as of the Closing Date have not
been undisclosed to the Buyer in writing.
8.3 INDEMNIFICATION PROCEDURE. A party or parties hereto agreeing to be
responsible for or to indemnify against any matter pursuant to this Agreement is
referred to herein as the "Indemnifying Party" and the other party or parties
claiming indemnification hereunder is referred to as the "Indemnified Party". An
Indemnified Party under this Agreement shall give prompt written notice to the
Indemnifying Party of any liability which might give rise to a claim for
indemnity under this Agreement. As to any Claim by a third party, the
Indemnified Party, to participate in the defense, compromise or settlement of
any such matter through the Indemnified Party's own attorneys and at the
Indemnifying Party's own expense; each of the indemnifying and the Indemnified
Party shall provide such cooperation and such reasonable access to its books,
records and properties as the other party shall reasonable request with respect
to any such matter; and the parties hereto agree to cooperate with each other in
order to ensure the proper and adequate defense thereof. The Buyer may setoff
against the amount of any other payments due to Seller hereunder or otherwise,
including, without limitation the Note, any al all amounts, due to the Buyer
pursuant to any and all Claims that the Buyer may have against the Seller
hereunder including without limitation with respect to the indemnification of
the Buyer hereunder by the Seller.
An Indemnifying Party shall not make any settlement of any Claims
without the written consent of the Indemnified Party which consent shall not be
unreasonably withheld. Without limiting the generality of the foregoing, it
shall not be deemed unreasonable to withhold consent to a settlement involving
injunctive or other equitable relief against the Indemnified Party or its
assets, employees or business.
In a case where responsibility for a matter giving rise to a Claim for
indemnification is shares by the parties, any of the parties may elect to
relieve the other of its obligations of indemnification with respect to such
matter and, subject to the provisions of this section, such
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electing party may thereupon assume full control of the resolution of such
matter. if such election is not made, control shall also be shared.
ARTICLE IX
SURVIVAL OF TERMS, REPRESENTATIONS
9.1 SURVIVAL. The representations and warranties contained herein shall
be true at and as of April 30, 1998, as though such representations and
warranties were made at and as of the Closing Date. All of these representations
and warranties shall survive the consummation of all of the transactions
contemplated by this Agreement.
ARTICLE X
MISCELLANEOUS PROVISIONS
10.1 BINDING AGREEMENT. This Agreement may not be transferred,
assigned, pledged or hypothecated all or in part by any party hereto without the
prior written consent of all the other
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parties hereto. This Agreement is binding upon and shall inure to the benefit of
the parties hereto and their respective herein, executors, administrators,
representatives and successors. No other person shall acquire or have any right
under or by virtue of this Agreement.
10.2 GOVERNING LAW. This Agreement, the rights and obligations of the
parties, and any other claims or disputes relating in anyway thereto will be
governed by and construed in accordance with the laws of the State of Florida,
without regard to its choice of law principles.
10.3 COUNTERPARTS, HEADINGS, ETC. This Agreement may be executed
simultaneously in any number of counterparts, each of which shall be deemed an
original, but all of which shall be deemed an original, but all of which shall
constitute one and the same instrument. The headings herein are for convenience
of reference only and shall not be deemed a part of this Agreement.
10.4 NOTICES. Any notice or other communication required or permitted
to be given hereunder shall be deemed validly given, made or served if in
writing and if delivered in person or sent by facsimile transmission or
registered or certified mail to the intended recipient at the following address
or to such other address or number as shall be furnished in writing by any such
party to the other:
If to the Seller: Antonio Echeverria
Ternerina
Hatillo, Centro, de la
Unidad Sanitaria 500
metros al este
If to the Buyer: Calixto Chaves
95 Merrick Way,
Suite 507,
Coral Gables, Florida, 33134
10.5 AMENDMENT; SEVERABILITY: This Agreement may be amended only by an
agreement in writing signed by the parties hereto. In case any provision of this
Agreement shall be held invalid, illegal or unenforceable, the validity,
legality and enforceability of the remaining provisions will not be affected or
impaired thereby.
10.6 ARBITRATION. Any dispute arising in connection with this Agreement
shall be exclusively settled by binding arbitration in the Spanish language in
Miami, Florida, in accordance with the Rules of Arbitration and Conciliation of
the International Chamber of Commerce. Notwithstanding any provision in these
rules, the arbitration panel at any such arbitration proceeding shall consist of
three arbitrators. One arbitrator will be designated by the Buyer, another
arbitrator will be designated by the Seller and the third arbitrator will be a
person mutually agreed upon by the Buyer and the Seller. The arbitration panel
shall render its decision in writing, and such written decision and conclusions
with respect to the disputes so settled shall be final and binding on the
parties to the arbitration proceeding and confirmation and enforcement of the
awards so on the parties to the arbitration proceeding and confirmation and
enforcement of the awards so rendered may be obtained and entered in any court
having
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jurisdiction thereof. Each of the Buyer and the Seller hereby irrevocably
submits to the jurisdiction of any such court for purposes of enforcement of the
arbitration panel's decision.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the day and year first above written.
SELLER:
By:______________________________________
Antonio Echeverria
President
Comercial Angui, S.A.
BUYER:
By:______________________________________
Calixto Chaves
President
Costa Rica International, Inc.
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