EXHIBIT 10.2
STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT ("Agreement") is made and entered into as of
September 28, 1998, and amended November 9, 1998, by and between RICA FOODS,
INC., a corporation, organized under the laws of the State of Nevada (the
"BUYER"), and Comercial Angui, S.A., a corporation, organized under the laws of
the Republic of Costa Rica (the "SELLER").
WITNESSETH:
WHEREAS, the Seller owns forty three point sixty two percent (43.62%)
of the issued and outstanding shares of the common stock ( the " Common Stock")
of Corporacion As de Oros, S.A.. (the "COMPANY").
WHEREAS, the Company has authorized a total of two million, (2.000.000) shares
of Common Stock, par value of one thousand (/cents/ 1,000) colones per share,
of which one million, five hundred thousand (/cents/1.500.000) shares are
issued and outstanding; and;
WHEREAS, the Seller desires to sell, convey, transfer, assign and deliver to the
Buyer, six hundred and fifty four thousand three hundred (654,300) shares of
Common Stock , issued and outstanding, which represent forty three point sixty
two percent (43.62%) of the issued and outstanding 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. Upon
the transfer of the Shares to the Buyer, the Buyer shall own one hundred percent
(100%) of the total outstanding Common Stock of the Company.
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 THE SHARES: Subject to the terms of this
Agreement, the Seller agrees to sell, assign, transfer, convey
and deliver the Shares to the Buyer, free and clear of any lien,
security interest, encumbrance, restriction, and claim of any
kind whatsoever, and the
1.2. Buyer agrees to purchase the Shares from the Seller. The sale,
assignment, transfer, conveyance and delivery by the Seller of
the Shares to the Buyer shall be effected on or before January
29, 1999 by the Seller's delivery to the Buyer of the stock
certificates evidencing the shares duly endorsed for transfer or
accompanied by stock powers duly executed in blank, and this
Agreement signed before a Notary Public under Costa Rican law, as
necessary to effectively vest in the Buyer all of the right,
title and interest of the Seller in and to the Shares.
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, The Buyer shall make payment in an aggregate amount of six million
two hundred sixty five thousand nine hundred fifty two dollars with fifty cents
($6,265,952.50) (the "PURCHASE PRICE"), payable in the voting stock of the
Buyer represented by the issuance of 5,012,762 (five million twelve thousand
seven hundred sixty two)
shares at a price of $1.25 per share, which is the closing price of the
stock of the Buyer as of August 31, 1998.
ARTICLE II
2.1 THE CLOSING: The transfer and delivery of the shares to be made pursuant
to this Agreement (the "CLOSING") shall take place at the offices of
Rica Foods, Inc, located in Costa Rica, on or before January 29, 1999, or such
other place, time and date as may be mutually agreed upon in writing by the
Seller and the Buyer (the "CLOSING DATE")
2.2 OBLIGATIONS OF SELLER AT CLOSING: At the Closing, the Seller shall
deliver to the Buyer stock certificates representing the Shares, duly
endorsed for transfer in blank, or accompanied by stock powers duly executed in
blank, as described in Section 1.1. hereof.
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 SELLER; GOOD STANDING. The Seller is a
corporation duly organized, 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 and conduct its business in the manner in which such
business is conducted. The Seller has delivered to the Buyer
true, correct and complete copies of the Articles of
Incorporation and By-laws of the Seller.
(b) AUTHORIZATION. The Seller 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 Agreement and all other agreements and
transactions contemplated hereby have been duly authorized and
approved by the Board of Directors and the shareholders of the
Seller, if necessary. No other corporate proceedings on its part
are necessary to authorize this Agreement and the transactions
contemplated hereby and this Agreement constitutes a valid and
binding Agreement of the Seller enforceable in accordance with
its terms. .
(c) NO CONFLICTS- SELLER: The execution, delivery and performance
of this Agreement by the Seller does not and 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
Agreement, indenture,
mortgage, dead of trust or other instrument to which the Seller
is a party or to which the assets of the Seller are bound.
3.2 PENDING OR THREATENED 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 against. 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 furnished the unaudited
Balance Sheets for the Company as of June 30, 1998, together with the
related unaudited income statements, unaudited statements of
stockholder's equity and statements of changes in financial condition
for the fiscal year ending September 30, 1998, in each case including
the notes thereto, if any (collectively, the "Financial Statements").
The Company's Financial Statements (including the notes thereto) are
true and complete, and fairly present the financial condition 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 condition of the
Company for the respective fiscal periods or as of the respective dates
therein set forth. The Financial Statements (including the notes
thereto) have been prepared in accordance with United States generally
accepted accounting principles, consistently applied, and do not fail
to disclose any material, extraordinary or out-of-period items. The
books of account and records of the Company have been, and are being,
maintained in all respects in accordance with applicable legal and
accounting requirements and reflect only actual transactions, and the
Financial Statements have been prepared in accordance with such books
and account 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, and as of August 31, 1998. No fact or condition of any
character exists or will exists 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.
3.5 TAX MATTERS. The Company has duly filed with the appropriate
governmental agencies 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 taxes,
assessments, fees, penalties, interest and other governmental
charges that have been incurred or are due or claimed to be due
from it by any federal, 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, 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
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, assessments, rights of way, building or use restrictions,
exceptions, variances or other limitations of whatever kind or character, except
as disclosed to the Buyer, 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 sub-lessee in possession under each lease or sublease to which it is a
lessee or sub-lessee. 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
nonconforming use or other permit which materially limit the Company's use
thereof.
3.7 ACCOUNTS RECEIVABLE. The Company shall not have accounts payable other
than the accounts disclosed to Buyer by Seller and shall not have accounts
receivable other than the ones disclosed to Buyer by Seller, not in excess of an
amount to be determined subsequent to the Buyer's due diligence and satisfactory
to the Buyer. All accounts and notes receivable 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 and either been collected or
are collectible, and will be collected in the ordinary course of business. None
of such receivables are subject to any right of rescission.
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 the Company 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 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 and conduct its business in the manner in
which it is currently conducted.. The Buyer has the corporate
power and authority, will take all the actions necessary and will
obtain all necessary permits and authorizations, if applicable,
in order to execute and deliver this Agreement and to consummate
the transactions contemplated hereby.
(b) AUTHORIZATION, ETC The Board of Directors of the Buyer
has duly authorized and approved the execution, delivery and
performance of this Agreement, and the other agreements and
transactions contemplated hereby, and if other corporate
proceedings on the part of the Buyer are necessary to authorize
this Agreement and the transactions, contemplated hereby, will be
obtained before the Closing Date.
(c) ENFORCEMENT, ETC. This Agreement is a valid and binding
agreement of the Buyer enforceable in accordance with its terms,
subject, to enforceability, bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and similar laws of general
applicability relating to or affecting creditor's rights and
general equity principles. This Agreement and all 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.
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 January 29, 1999,
unless the prior written consent of the Buyer is first obtained, the Seller will
use its best efforts to preserve the value of the Company's assets and the
business operations of the Company, to preserve 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 and effect all licenses,
permits and authorizations held by the Company necessary or desirable for the
conduct of the Company's business, to keep in full force and effect at not less
than their present limits, all policies of insurance, and to make no material
change in the customary terms and conditions of such insurance policies.
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
indicating 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 shall (i), take all steps that are within its power
to cause to be fulfilled those conditions precedent to Buyer's obligations to
consummate the transactions contemplated hereby that are dependent upon Seller's
actions, and (ii) use its 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 effect the transactions contemplated by this
Agreement and not to take any actions which would be adverse to such result. If
at any time after the Closing Date any further action is necessary or desirable
to carry out the purposes of this Agreement, Seller shall take, or cause to be
taken, all such necessary action. In addition, the Seller and the Company shall
at all times cooperate with the Buyer to assist, in obtaining refunds due to 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 of the assets of the Company, and the Seller
will immediately 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.
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 and the Company, 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 and the Company 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 respects 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 CONSENT AND APPROVALS. On or before January 29, 1999, The Seller
and/or the Company as the case may be shall have received in writing all
required approvals, consents or acquiescence from all governmental and
regulatory agencies, secured parties or other third parties with respect to the
transactions contemplated by this Agreement.
6.3 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 right title
and interest 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.
6.4 NO MATERIAL ADVERSE CHANGE. No material adverse change in the
operations, the business, the financial condition or prospects of the Company
shall have occurred, and 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 and absolute discretion of the
Buyer.
6.5 DUE DILIGENCE. The Seller shall have provided Buyer 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 has, among other things, (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, or in a
satisfactory condition to the Buyer, (iii) satisfied itself, in its sole and
absolute discretion, that the Company does not have any debts, liabilities or
other obligations, whether absolute, contingent or otherwise, which have not
been disclosed in writing by the Seller, or are reflected in the Financial
Statements, 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 are valid. Such due diligence was completed by the Buyer
about fifteen (15) days before the execution of this Agreement (the "Due
Diligence Period").
6.6 SHARE CERTIFICATES AND OTHER DOCUMENTS. The Seller shall have
delivered to the Buyer stock certificates evidencing the Shares duly endorsed
for transfer or accompanied by stock powers duly executed in blank. The Buyer
shall have received from the Seller all such other documents and instruments,
duly executed where required or appropriate, as it may reasonably request in
connection with the transactions contemplated by this Agreement, as set forth in
Section 1.1.
6.7 OPINION OF SELLER'S COUNSEL. The Seller shall have delivered an
opinion of counsel in a form reasonably satisfactory to the Buyer.
6.8 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.
6.9 FAIRNESS OPINION.The Company shall have received an opinion from a
financial advisor stateing that the transactions contemplated by this Agreement
are fair to the stockholders of the company from a financial prospective.
6.10 STOCKHOLDER APPROVAL. The stockholders of the Company shall have
approved this Agreement at a meeting of the stockholders or pursuant to a
consent solicitation.
ARTICLE 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 January 29, 1999, of each
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 The Closing Date. 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 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 with and performed.
7.3 PURCHASE PRICE. The Buyer shall have delivered to the Seller the
Purchase Price in accordance with Section 1.1 of this Agreement.
7.4 FAIRNESS OPINION.The Company shall have received an opinion from a
financial advisor stateing that the transactions contemplated by this Agreement
are fair to the stockholders of the company from a financial prospective.
7.5 STOCKHOLDER APPROVAL. The stockholders of the Company shall have
approved this Agreement at a meeting of the stockholders or pursuant to a
consent solicitation.
ARTICLE VIII
INDEMNIFICATION
8.1 OBLIGATIONS OF BUYER. The Buyer agrees to defend, indemnify and
hold harmless Seller from, against and in respect of any and all demands,
claims, actions or causes of action, 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 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 SELLER. Seller agrees to defend, indemnify and hold
harmless the Buyer from, against and in respect of any and all demands, claims
actions or causes of action, 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 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 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
connection with 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 (c) event which, as of the Closing Date,
have not been disclosed 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, 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 Party 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, and any and all amounts, due
to the Buyer pursuant to any and all claims that the Buyer may have against
Seller hereunder including, without limitation, with respect to the
indemnification of the Buyer hereunder by 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 shared 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 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 and correct as of January 29, 1999 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 parties hereto. This Agreement shall be
binding upon and shall inure to the benefit of the parties hereto and their
respective assigns and successors in interest. 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.
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
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
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 by any court 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 ( the "Rules
of Arbitration" ) . Notwithstanding any provision in the Rules of
Arbitration, the arbitration panel at any such arbitration proceeding
shall consist of three arbitrators. One arbitrator will be designated
by Buyer, another arbitrator will be designated by Seller and the third
arbitrator will be a person mutually agreed upon by Buyer and 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 jurisdiction thereof. Each of Buyer and 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: ____/s/ Antonio Echeverria_________
Antonio Echeverria
President
Comercial Angui, S.A.
By:____/s/ Calixto Chaves______________
Calixto Chaves
President
Costa Rica International, Inc.