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EXHIBIT 10.4
STOCK PURCHASE AGREEMENT
STOCK PURCHASE AGREEMENT ("Agreement"), dated as of October 23, 2000 by and
between BERTEN USA HOLDINGS, INC., a Florida corporation ("SELLER"), and
XXXXXXXX COMMERCIAL VENTURES, LIMITED, a Belize corporation (hereinafter
individually and collectively "PURCHASER").
WITNESSETH
WHEREAS, SELLER desires to sell Five Million (5,000,000) shares of its
common stock, no par value per share (the "Shares") to PURCHASER on the terms
and conditions set forth in this Agreement; and
WHEREAS, PURCHASER desires to buy the Shares on the terms and conditions
set forth herein;
NOW THEREFORE, in consideration of the promises and respective mutual
agreements herein contained, it is agreed by and between the parties hereto as
follows:
ARTICLE 1
SALE AND PURCHASE OF THE SHARES
1.1 Sale of the Share. Upon the execution of this Agreement as provided in
Section 3.1 hereto (the "Closing"), SELLER shall sell to PURCHASER and PURCHASER
shall purchase from SELLER, the Shares. Concurrently, SELLER shall issue and
deliver a certificate or certificates representing the Shares to PURCHASER.
1.2 Consideration and Payment for the Shares. In consideration for the sale
and issuance of the Shares, PURCHASER shall pay a purchase price in the form of
a cancellation of indebtedness equal to Fifty Cents ($0.50) per share owed to
digitalreach Corp, a related entity, for the total purchase price of Two Million
Five Hundred Thousand Dollars ($2,500,000) ("Purchase Price").
ARTICLE 2
REPRESENTATIONS AND COVENANTS OF SELLER AND PURCHASER
2.1 Representations and Warranties. The SELLER hereby represents and
warrants that:
(a) SELLER is a corporation duly incorporated, validly existing and, at
the closing, in good standing under the laws of the State of Florida
and has the corporate power and authority to own or lease its
properties and to carry on business as now being conducted.
(b) The authorized capital stock of SELLER shall consisted of 10,000,000
shares of no par value preferred stock and 100,000,000 shares of no
par value common stock,
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of which not to exceed 32,231,588 shares of common stock are issued
and outstanding. All said shares are validly issued, fully paid and
non-assessable.
(c) SELLER has, or prior to the closing, will furnish to Shareholder
audited financial statements as of August 31, 2000. All of said
financial statements, (i) are in accordance with SELLER's books and
records, (ii) present fairly and financial position of SELLER as of
such dates, and its results of operations and changes in financial
position for the respective periods indicated, (iii) have been
prepared in conformity with generally accepted accounting principles
applied on a consistent basis, and (iv) consistent with prior business
practice, contain adequate reserves for all known or contingent
liabilities, losses and refunds with respect to services or products
already rendered or sold.
(d) From the date of the Financial Statements to the Closing Date, there
has been no material change in the properties, assets, liabilities,
financial condition, business, operations, affairs or prospects of
SELLER from that set forth or reflected in the Financial Statements,
other than changes in the ordinary course of business, none of which
have been, either in any case or in the aggregate, materially adverse.
(e) SELLER has the power to enter into this Agreement, and this Agreement,
when duly executed and delivered, will constitute the valid and
binding obligation of SELLER. This Agreement constitutes the legal,
valid and binding obligation of SELLER enforceable in accordance with
its terms.
(f) The execution and delivery by SELLER of this Agreement and the
consummation of the transaction herein contemplated, (i) will not
conflict with, or result in a breach of the terms of, or constitute
any default under or violation of, any law or regulation of any
governmental authority, or the Articles of Incorporation or By-Laws of
SELLER, or any material agreement or instrument to which SELLER is a
party or by which it is bound or is subject; (ii) nor will it give to
others any interest or rights, including rights of termination,
acceleration or cancellation, in or with respect to any of the
properties, assets, agreements, leases, or business of SELLER.
(g) The records of meetings and other corporate actions of SELLER
(including any committees of the Board) which are contained in the
Minute books of SELLER contain complete and accurate records of the
matters reflected in such minutes.
(h) SELLER is not a party to, and there are not any claims, actions,
suits, investigations or proceedings pending or threatened against
SELLER or its business, at law or in equity, or before or by any
governmental
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department, commission, board, bureau, agency, or instrumentality,
domestic or foreign, which if determined adversely would have
a material effect on the business or financial condition of
SELLER or the ability of SELLER to carry on its business. The
consummation of the transactions herein contemplated will not conflict
with or result in the breach or violation of any judgment, order,
writ, injunction or decree of any court or governmental department,
commission, board, bureau, agency or instrumentality, domestic or
foreign.
(i) SELLER has taken reasonable care to ensure that all disclosures and
facts are true and accurate, and that there are no other material
facts, the omission of which would make misleading any statement
herein. Further, to the best of SELLER's knowledge, no representation,
warranty or agreement made by SELLER in this agreement or any of the
Schedules or any other Exhibits hereto and no statement made in the
Schedules or any such Exhibit, list, certificate or schedule or other
instrument or disclosure furnished by them in connection with the
transactions herein contemplated contains, or will contain, any untrue
statement of a material fact necessary to make any statement,
representation, warranty or agreement not misleading.
(j) Prior to Closing, the SELLER shall have prepared such documents
required to qualify the issuance of the Shares in accordance with
Regulation S, promulgated under the Securities Act of 1933, as
amended, and shall have taken all other necessary action and
proceedings as may be required and permitted by applicable law, rule
and regulation for the legal and valid issuance of the Shares to the
PURCHASER or subsequent holders. The SELLER represents and warrants
that the Shares may be issued as securities without restrictive legend
or other restriction on transfer pursuant to Regulation S. The SELLER
is relying upon the truth and accuracy of the representations,
warranties, agreements, acknowledgments and understandings of
PURCHASER set forth herein in order to determine the applicability of
such exemptions and the suitability of PURCHASER to acquire the
Shares.
2.2 Representations and Warranties. The PURCHASER hereby represents and
warrants that:
(a) The PURCHASER has full right, power and authority to enter into this
Agreement and to carry out and consummate the transaction contemplated
herein This Agreement constitutes the legal, valid and binding
obligation of PURCHASER.
(b) The Purchaser has been given the opportunity to ask questions of and
to receive answers from persons acting on each of the SELLERS' behalf
concerning the terms and conditions of this transaction and also has
been given the opportunity to obtain any additional information which
each
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of the SELLERS' possess or can acquire without unreasonable
effort or expense. As a result PURCHASER is cognizant of the financial
condition, capitalization, use of proceeds from this financing and the
operations and financial condition of SELLER has available full
information concerning their affairs and has been able to evaluate the
merits and risks of the investment in the Shares; and
(c) The Purchaser agrees:
(a) All offers and sales of the securities prior to the expiration
of the distribution compliance period of Regulation S (Rule 901 and
905, and Preliminary Notes) shall have offering restrictions imposed;
(b) The offer or sale, if made prior to the expiration of a
one-year distribution compliance period, is not made to a U.S. person
or for the account or benefit of a U.S. person; and
(c) The offer or sale, if made prior to the expiration of a
one-year distribution compliance period, will be made pursuant to the
following conditions:
1. The purchaser of the securities (other than a distributor)
certifies that it is not a U.S. person and is not acquiring
the securities for the account or benefit of any U.S. person
or is a U.S. person who purchased securities in a transaction
that did not require registration under the Act.
2. The purchaser of the securities agrees to resell such
securities only in accordance with the provisions of
Regulation S (Rule 901 through Rule 905, and Preliminary
Notes), pursuant to registration under the Act, or pursuant to
an available exemption from registration; and agrees not to
engage in hedging transactions with regard to such securities
unless in compliance with the Act;
3. The securities of the Seller contain a legend to the effect
that transfer is prohibited except in accordance with the
provisions of Regulation S (Rule 901 through Rule 905, and
Preliminary Notes), pursuant to registration under the Act, or
pursuant to an available exemption from registration; and that
hedging transactions involving those securities may not be
conducted unless in compliance with the Act; and
4. The Company is required, either by contract or a provision in
its bylaws, articles, charter or comparable document, to
refuse to register any transfer of securities not made in
accordance with the provisions of Regulation S (Rule 901
through Rule 905, and Preliminary Notes) pursuant to
registration under the Act, or pursuant to an available
exemption from registration; provided,
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however, that if the securities are in bearer form or foreign
law prevents the Seller from refusing to register securities
transfers, other reasonable procedures are implemented to
prevent any transfer of the securities not made in accordance
with the provisions of this Regulation S.
(d) For offers and sales of equity securities of domestic issuers,
not to engage in hedging transactions with regard to such securities
prior to the expiration of the distribution compliance period
specified in (a) above, unless in compliance with the Act.
ARTICLE 3
CLOSING AND DELIVERY OF DOCUMENTS
3.1 Closing. The Closing shall take place on October 31, 2000, at the
office of Overseas Company Registration Agents Asia Limited, 0000 Xxxx xx
Xxxxxxx Tower, 00 Xxxxxxxx Xxxx, Xxxxxxx Xxxx Xxxx, or at such other time or
place as the parties may agree. Subsequent to the signing and at the Closing,
the following shall deem to occur as a single integrated transaction:
(a) SELLER shall deliver or cause its transfer agent to deliver to the
PURCHASER the stock certificate required by Section 1.1.
(b) SELLER shall deliver, or cause to be delivered, to the PURCHASER such
instruments, documents and certificates as are required to be
delivered by SELLER or its representatives pursuant to the provisions
of this Agreement
(c) The PURCHASER shall deliver, or cause to be delivered, to SELLER such
instruments, documents and certificates as are required to be
delivered by the PURCHASER or its representatives to reflect the
cancellation of indebtedness pursuant to the provisions of this
Agreement and to reflect the reduction of the obligation owed by
SELLER or digitalreach Corp. to PURCHASER.
ARTICLE 4
TERMINATION
4.1 Termination. Notwithstanding anything to the contrary contained in this
Agreement, this Agreement may be terminated and the transactions contemplated
hereby may be abandoned at any time prior to delivery of the Purchase Price
solely by the mutual consent of all of the parties.
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ARTICLE 5
MISCELLANEOUS
5.1 Partial Invalidity. If any term or provision of this Agreement or the
application thereof to any person or circumstances shall, to any extent, be
invalid or unenforceable" the remainder of this Agreement or the application of
such term or provision to persons or circumstances other than those to which it
is held invalid or unenforceable, shall not be affected thereby, and each such
term and provision of this Agreement shall be valid and be enforced to the
fullest extent permitted by law.
5.2 Waiver. No waiver of any breach of any covenant or provision herein
contained shall be deemed a waiver of any preceding or succeeding breach
thereof, or of any other covenant or provision herein contained. No extension of
time for performance of any obligation or act shall be deemed and extension of
the time for performance of any other obligation or act.
5.3. Notices. All notices or other communications required or permitted
hereunder shall be in writing, and shall be sent by registered or certified
mail, postage prepaid, return receipt requested, and shall be deemed received
upon mailing to the addresses set forth on the signature page. Notice of change
of address shall be given by written notice in the manner detailed in this
subparagraph 5.3.
5.4 Binding Effect. This Agreement shall be binding upon and shall inure to
the benefit of the permitted successors and assigns of the parties hereto.
5.5 Attorneys' Fees. In the event of the bringing of any action or suit by
a party hereto against another party here- under by reason of any breach of any
of the covenants, agreements or provisions on the part of the other party
arising out of this Agreement, then in that event the prevailing party shall be
entitled to have and recover of and from the other party all costs and expenses
of the action or suit, including actual attorney's fees, accounting fees, and
other professional fees resulting therefrom.
5.6 Entire Agreement. This Agreement is the final expression of, and
contains the entire agreement between, the parties with respect to the subject
matter hereof and supersedes all prior understandings with respect thereto. This
Agreement may not be modified, changed, supplemented or terminated, nor may any
obligations hereunder be waived, except by written instrument signed by
the party to be charged or by his agent duly authorized in writing or as
otherwise expressly permitted herein. The parties do not intend to confer any
benefit hereunder on any person, firm or corporation other than the parties
hereto.
5.7 Time is of the Essence. The parties hereby acknowledge and agree that
time is strictly of the essence with respect to each and every term, condition,
obligation and provision hereof and that failure to timely perform any of the
terms, conditions, obligations or provisions hereof by either party shall
constitute a material breach of and non-curable (but waivable) default under
this Agreement by the party so failing to perform.
5.8 Headings. Headings at the beginning of each paragraph are solely for
the convenience of the parties and are not a part of the Agreement. Whenever
required by the context of this Agreement, the singular shall include the plural
and the masculine shall include the feminine. This Agreement shall not be
construed as if it had been prepared by one of the parties, but rather as if
both parties had prepared the same. Unless otherwise indicated, all references
to paragraphs and subparagraphs are to this Agreement. In the event the date on
which any party is required to take any action under the terms of this Agreement
is not a business day, the action shall be taken on the next succeeding day.
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5.9 Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be an original and all of which taken together
shall constitute one instrument.
5.10 Choice of Law. The parties hereto expressly agree that this Agreement
shall be governed by, interpreted under, and construed and enforced in
accordance with the laws of Belize.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement in Hong
Kong.
BERTEN USA HOLDINGS, INC.
By:
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Address: 00000 Xxxx Xxxxxxx Xxxx.
Xxxxx 0000
Xxx Xxxxxxx, XX 00000
XXXXXXXX COMMERCIAL VENTURES, LIMITED
By:
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Xxxx Xxxxx Dysangco Xxxxxxxx
Address: 00 Xxxxxx Xxxxxx
X.X. Xxx 000
Xxxxxx Xxxx, Xxxxxx
I, Xxxx Xxxxx Dysangco Xxxxxxxx, solemnly and sincerely declare that I have
entered into this Stock Purchase Agreement on behalf of Xxxxxxxx Commercial
Ventures, Limited, and I make this solemn declaration conscientiously believing
the same to be true and by virtue of the Oaths and Declarations Ordinance.
Declare at Hong Kong, this 23rd day of October, 2000.
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Xxxx Xxxxx Dysangco Xxxxxxxx
On this 23rd day of October in the year 2000 before me,
__________________________, a justice, notary, commissioner or other person
authorized, personally appeared Xxxx Xxxxx Dysangco Xxxxxxxx, proved to me to
be the person whose name is subscribed to the within instrument and acknowledged
to me that he executed the same in his authorized capacity, and that by his
signature on the instrument, the person or the entity upon behalf of which the
person acted, executed the instrument.
Declared at Hong Kong, this 23rd day of October, 2000.
Before me
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[Signature and designation]
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