Exhibit 10.13
STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT, made and entered into as of December 31,
1999, by and between MAX Internet Communications, Inc., a Nevada corporation and
MAXpc Technologies, Inc., a Texas corporation (together hereinafter referred to
as the "Seller") and Clear Springs Investments Ltd., a British Virgin Islands
corporation (hereinafter referred to as the "Buyer").
W I T N E S S E T H:
WHEREAS, the Seller owns all of the outstanding quotas of MAX Internet
Communications do Brasil, LTDA, a private limited liability company,
(hereinafter referred to as the "Quotas"), a corporation formed under the laws
of Brazil (hereinafter referred to as the "Company"); and
WHEREAS, the Seller desires to sell the Quotas to Buyer and Buyer
desires to purchase the Quotas on the terms and subject to the conditions set
forth herein;
NOW THEREFORE, in consideration of the premises and the mutual
covenants set forth below and other good and valuable consideration, the receipt
and adequacy of which are hereby acknowledged, and intending to be legally
bound, the parties hereto do hereby agree as follows:
I.
PURCHASE AND SALE OF QUOTAS
SECTION 1.01 Purchase and Sale of Quotas. Subject to the terms and
conditions set forth herein, effective the date on which all transactions
described herein are completed and closed (the "Closing Date") Seller shall sell
to the Buyer, and the Buyer shall purchase from Seller the Quotas. Seller shall
transfer all of its right, title, and interest in and to the Quotas being
conveyed by it to Buyer free and clear of any lien, security interest, or other
encumbrance of any nature and free of any claim by any person or entity to or
against the Quotas.
SECTION 1.02 Purchase Price. The purchase price of the Quotas
(hereinafter referred to as the "Purchase Price") shall be the sum of BRL
600,000 and the other provisions and terms contained herein. The purchase price
shall be payable from Buyer to Seller in three installments by wire transfer,
the first installment of BRL 200,000 within 60 days of the effective date of
this agreement, the second installment of BRL 200,000 within 30 days of the
payment of the first installment, and the third installment of BRL 200,000
within 30 days of payment of the second installment.
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II.
REPRESENTATIONS AND WARRANTIES OF THE SELLER
The Seller hereby represents and warrants to, and agrees with, the Buyer as
follows:
SECTION 2.01 Authority. Seller is duly authorized and possesses all
necessary corporate power to effect the sale hereby.
SECTION 2.02 OTHER THAN THE FOREGOING, THE QUOTAS SOLD HEREUNDER BY
SELLER ARE PROVIDED "AS IS" WITH NO WARRANTY OF ANY KIND, EXPRESS, IMPLIED,
STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO, ANY WARRANTIES OR
CONDITIONS AS TO THE COMPANY, AND EACH PARTY SPECIFICALLY DISCLAIMS ANY IMPLIED
WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT OF ANY THIRD PARTY RIGHTS OR
FITNESS FOR A PARTICULAR PURPOSE. EACH PARTY AGREES THAT THIS OWNERSHIP OF THE
QUOTAS SHALL BE ENTIRELY AT BUYER'S OWN RISK. SELLER MAKES NO REPRESENTATIONS OR
WARRANTIES, OR PROVIDES BUYER WITH ANY INDEMNIFICATION, WITH RESPECT TO QUOTAS
OR ANY ASSETS PURCHASED BY BUYER UNDER THIS AGREEMENT.
III.
REPRESENTATIONS AND WARRANTIES OF BUYER
Buyer hereby represents and warrants to, and agrees with, the Sellers as
follows:
SECTION 3.01 Investment Representations
(a) The Quotas to be acquired by Buyer will be acquired by Buyer for
investment for Buyer's own account, not as a nominee or agent for any person,
and not with a view to the sale or distribution of all or any part thereof.
(b) The Buyer understands that the Quotas may not be sold or offered for
sale within the United States of America or to any "U.S. persons" as defined by
U.S. federal securities laws.
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SECTION 3.02 Brokers. Buyer has not made any agreement or arrangement which
would result in any broker, finder, agent or other person or entity having any
claim for any fee, commission, or payment against any Seller in connection with
the negotiation or execution of this Agreement or the consummation of the
transactions contemplated hereby.
SECTION 3.03 Authorization, etc. Buyer has the power, authority, and
capacity to enter into this Agreement and to carry out the transactions
contemplated hereby, and this Agreement has been duly executed and delivered by
Buyer.
SECTION 3.04 No Consent Required. No consent, approval, order or
authorization of, or registration, declaration or filing with any governmental
or public body or authority is required for Buyer to execute and deliver this
Agreement and perform its obligations hereunder.
SECTION 3.05 Liabilities. Buyer acknowledges that upon the purchase of the
Quotas, the Company will continue to be liable for all of its obligations,
whether fixed, accrued or contingent, whether existing or arising in the future,
and that Seller will have no further liability for any such obligation of the
Company, except as provided in this Agreement.
IV.
INDEMNIFICATION
SECTION 4.01 Buyer's Claims. The Seller shall indemnify and hold harmless
Buyer, its successors and assigns, and their respective officers, directors,
employees, shareholders, agents, and affiliates against any and all damages,
claims, losses, liabilities, and expenses actually incurred by Buyer, including,
without limitation, legal, accounting, and other expenses, which may arise out
of (i) any breach of any of the representations or warranties made in this
Agreement by the Seller, or (ii) any claims against Buyer from a stockholder of
Seller or other party (other than a creditor of the Company seeking to enforce a
debt owed by the Company) challenging the validity or legality of this
Agreement. Such indemnification obligation shall survive the Closing.
SECTION 4.02 Seller's Claim. Buyer shall indemnify and hold harmless Seller
and its assigns, agents, and affiliates against any and all damages, claims,
losses, liabilities and expenses, including without limitation, legal
accounting, and other expenses actually incurred by Seller, which may arise out
of any breach of any of the representations or warranties made in this Agreement
by Buyer, and for any liabilities or obligations of the Company arising
hereafter.
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V.
OTHER AGREEMENTS
SECTION 5.01 Future Assistance. Each party hereto shall assist the others
in fulfilling the intent and purposes of this Agreement and shall take all such
further action as shall be reasonably necessary to effectively convey the
business of the Company to Buyer, have access to all books, records and data
regarding the Company, and allow for the timely reporting of the transaction to
all governmental and taxing authorities. Concurrently with the consummation of
the transactions contemplated by this Agreement, Seller shall deliver to Buyer
all books and records, including financial records, related to the Company.
SECTION 5.02 Tax Matters. Seller will file all tax returns required to be
filed by the Company related to periods ending at or prior to the date of
consummation of the transactions contemplated by this Agreement.
SECTION 5.03 Intercompany Payable. All intercompany payables from the
Company to Seller, all of which are set forth on attached Schedule 5.04, shall
be payable from the Company to Seller in the manner described in Section 5.05.
SECTION 5.04 Pending Transactions. As of the Closing, there are two major
transactions and several smaller transactions in progress for the sale of
Seller's products to customers of the Company. These consist of:
1. Sale of 20,000 MAX x.x.Xxxx 3600R cards and Xxxx Xxx Cameras
(together a "Kit") to the Government of Brasil, of which 8,000
Kits are to be delivered by February 18, 2000 and paid for upon
delivery, and 12,000 kits to be delivered by March 31, 2000 and
paid for upon delivery.
2. Sale of approximately 2,500 Kits to other customers.
The first amounts collected on these sales shall be applied to the intercompany
payables described on Schedule 5.03.
In addition, a sale of 6,000 Kits to Igen-Parti Solutions will be paid for
directly to Seller from the customer on or before February 15, 2000. Seller will
pay the Company 10% of the net profit realized by Seller on this sale. In
addition, the Seller will bear up the first USD1,000,000 of tariffs and duties
resulting from such sale.
SECTION 5.05 Future Transactions. From the date of Closing, the Company
shall be appointed a distributor for the Seller pursuant to the terms of the
Distributor Agreement attached as Exhibit A. Prices charged to the Company by
the Seller shall be those in effect for other distributors of the Seller.
SECTION 5.06 Microtec. Sales of products to Microtec shall be described in
the Distributor Agreement.
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VI.
MISCELLANEOUS
SECTION 6.01 Expenses. Each party hereto will pay its own expenses in
connection with the transactions contemplated hereby, whether or not such
transactions shall be consummated, and the Seller shall not charge any such
expenses to the Company.
SECTION 6.02 Survival of Agreements. All covenants, agreements,
representations and warranties made herein shall survive the execution and
delivery of this Agreement and the sale and delivery of the Quotas pursuant
hereto.
SECTION 6.03 Certain Rules of Interpretation. Any information disclosed in
any schedule attached hereto or any certificate furnished in connection herewith
shall be deemed disclosed wherever otherwise required, and for all purposes,
under this Agreement, whether or not specific reference was made thereto.
Inclusion of any information in a schedule or exhibit shall not be deemed an
admission as to the materiality of such information or otherwise alter or affect
the provisions of the representation or warranty to which the schedule or
exhibit relates.
SECTION 6.04 Parties in Interest. All covenants and agreements contained in
this Agreement by or on behalf of any of the parties hereto shall bind and inure
to the benefit of the respective successors and assigns of the parties hereto
whether so expressed or not.
SECTION 6.05 Notices. All notices, requests, consents, or other
communications hereunder shall be in writing and shall be delivered personally
or by courier or mailed by first class registered or certified mail, postage
prepaid, in either case addressed as follows:
(a) if to the Buyer
Clear Springs Investments Ltd.
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(b) if to the Seller
MAX Internet Communications, Inc.
0000 Xxxxxxx Xxxx
Xxxxx 000 - Xxxx
Xxxxxx, Xxxxx 00000
Attention: Xxxxxx X. XxXxxxxx
or, in any such case, at such other address or addresses as shall have been
furnished in writing by such party to the others. Any such communication shall
be deemed given when actually delivered to the address indicated.
SECTION 6.06 LAW GOVERNING. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF BRAZIL.
SECTION 6.07 Entire Agreement. This Agreement, along with the Schedules and
Exhibits attached hereto, constitutes the entire agreement of the parties with
respect to the subject matter hereof and may not be modified or amended except
in writing.
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SECTION 6.08 Counterparts. This Agreement, including all agreements
executed and delivered hereunder, may be executed in two or more counterparts,
each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
SECTION 6.09 Time. Time is of the essence of this Agreement.
IN WITNESS WHEREOF, Seller and Buyer have executed this Agreement or caused
this Agreement to be executed on its behalf by its duly authorized
representative, as of the day and year first above written.
SELLER:
MAX INTERNET COMMUNICATIONS, INC.
By: __________________________________
Xxxxxx X. XxXxxxxx, President
MAXPC TECHNOLOGIES, INC.
By: __________________________________
Xxxxxx X. XxXxxxxx, President
BUYER:
CLEAR SPRINGS INVESTMENTS LTD.
By:___________________________________
Name: Xxxxxx Xxxx-Xxxxxxx
Title: by Power of Attorney
From Disney Xxxxxxxx, Director
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