SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
________________
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(D) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of Report (date of earliest event reported) November 22, 1999
RICA FOODS, INC. (formerly known as Costa Rica International, Inc.)
(Exact name of registrant as specified in its charter)
NEVADA
(State or other jurisdiction of incorporation)
0-18222 87-0432572
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(Commission File Number) (IRS Employer Identification No.)
95 MERRICK WAY, SUITE 507
CORAL GABLES, FLORIDA 33134
(Address of principal executive offices) (Zip Code)
(305) 476-1757
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(Registrant's telephone number, including area code)
ITEM 2. ACQUISITION OF DISPOSITION OF ASSETS
On November 22, 1999 Rica Foods, Inc. (the "Company" or the "Registrant")
consummated the acquisition of 100% of the total outstanding common stock of
Corporation As de Oros, S.A. ("As de Oros"), by the delivery from Comercial
Angui, S.A. ("Angui") of 43.62% or 654,300 shares of common stock of As de Oros
(the "Shares") in accordance with with the terms and conditions of that Stock
Purchase Agreement (the "Agreement") dated as of September 28, 1998, and amended
on November 9, 1998 by and between the Company and Angui. The Company has issued
to Agnui, in exchange for the Shares, a total of 1,670,921 shares of Company
common stock. The Agreement is included as an exhibit to this Current Report on
Form 8-K and incorporated herein by reference.
With the delivery of the Shares and such transfer reflected in the stock ledger
of As de Oros, the Company has increased the ownership interest reflected in its
financial statements, to 100% ownership of As de Oros, in comparison to a 56.38%
majority interest that was being shown for the fiscal year 1999.
As de Oros, Costa Rica's second largest poultry producer, has an estimated 20%
market share of that country's poultry market. As de Oros is also one of the
leaders in the Costa Rican animal feed markets and owns a chain of fried chicken
restaurants in Costa Rica called Restaurantes As de Oros. The Company will
continue to operate in these fields.
ITEM 7. FINANCIAL STATEMENTS, PRO FORMA FINANCIAL INFORMATION AND EXHIBITS
(a) FINANCIAL STATEMENTS OF BUSINESSES ACQUIRED
As permitted by Item 7(a)(4) of Form 8-K, the Registrant intends
to file the required financial statements of As de Oros by Amendment
to this Current Report on Form 8-K no later than 60 days after
November 29, 1999.
(b) PRO FORMA FINANCIAL INFORMATION
As permitted by Item 7(b)(2) of Form 8-K, the Registrant intends
to file the required pro forma financial information by amendment to
this Current Report on Form 8-K no later than 60 days after
November 29, 1999.
(c) EXHIBIT
2.1 Stock Purchase Agreement, dated as of September 28, 1998, and
amended on November 9, 1998, by and between the Company and Comercial
Angui, S.A.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
RICA FOODS, INC.
Dated: November 29, 1999 By: /S/ CALIXTO CHAVES
------------------------
CALIXTO CHAVES
President, Chief Executive
Officer, and Chairman
EXHIBIT INDEX
EXHIBIT DESCRIPTION
2.1 Stock Purchase Agreement, dated as of September 28, 1998, and amended
on November 9, 1998, by and between the Company and Comercial Angui,
S.A.
EXHIBIT 2.1
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.
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, 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.
Page 2-2
(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.
Page 2-3
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.
Page 2-4
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:
Page 2-5
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
Page 2-6
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:
Page 2-7
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").
Page 2-8
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 stating 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.
Page 2-9
7.4 FAIRNESS OPINION. The Company shall have received an opinion from a
financial advisor stating 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
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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.
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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.
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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.
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