EXHIBIT 10.1
STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT ("Agreement") is made and entered into as of
September 28, 1998, and amended as of November 9, 1998, by and between RICA
FOODS, INC., a corporation organized under the laws of the State of Nevada (the
"BUYER"), and INVERSIONES XX XXXXXX, X.X., a corporation organized under the
laws of the Republic of Costa Rica (the "SELLER").
WITNESSETH:
WHEREAS, the Seller owns forty point forty four percent (40.44%) of the issued
and outstanding shares of the common stock of Corporacion Pipasa, S.A.. (the
"COMPANY").
WHEREAS, the Company has authorized a total of five million, fifty thousand
(5,050,000) shares of common stock, par value of one thousand (/cents/ 1.000)
colones per share, of which four million, five hundred and fifty thousand
($4,550,000) shares are issued and outstanding; and
WHEREAS, the Seller desires to sell, convey, transfer, assign and deliver to the
Buyer one million eight hundred forty thousand (1,840,000) shares of common
stock of the Company, issued and outstanding, which represent forty point
forty-four percent (40.44%) 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 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 31, 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, 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. The parties may mutually
agree in writing, and pursuant to the mutual benefits provided by this
Agreement, to the delivery by the Buyer to the Seller of the stock
certificates of the Company after January 31, 1999, if so required and
duly justified.
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 the aggregate amount of thirteen million eight hundred
thirteen thousand four hundred eighty dollars ($13,813,480) (the
"PURCHASE PRICE") payable in the voting stock the Buyer represented by
the issuance of 11,050,784 shares at a price of $1.25 per share, 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 on January 29, 1999, or such
other 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 hereof executed in
blank, as described in Section 1.1.
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 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 Company.
(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
biding Agreement of 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, deed of trust or other instrument to which the Seller
is a party or to which the assets of the Seller are bound.
3.2 LITIGATION. To the best of the Seller's knowledge, there is no litigation
for 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 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 position for the fiscal years ending September 30, 1997, in
each case including the notes thereto, if any (collectively, the "Financial
Statements"). The Company's balance sheets (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 position of the Company for the respective fiscal periods or
as of the respective dated therein set forth. Each of such statements (including
the notes thereto) has been prepared in accordance with United States generally
accepted accounting principles consistently applied, and do not and will not
fail to disclose any material, extraordinary or out-of-period items. The books
and records of the Company have been, and are being, maintained in all 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 of 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 September
30, 1998. No fact or condition of any character exists or will exist on the
Closing Date that the Seller believes will cause such an adverse change in the
future as a result of occurrences, acts or omissions prior to the Closing Date.
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. No income, excise, sales and/or
federal, state, local, foreign
or other tax returns are currently being audited by the appropriate taxing
authorities, and all prior audits have been concluded and resolved.
3.6 PROPERTY-TITLE AND LEASES. The Company has good, valid and marketable
title, free and clear of any and all liens, claims, encumbrances, charges,
defaults, equities, assessments, rights of way, building or use restrictions,
exceptions, variances or other limitations of whatever kind or character, except
as disclosed to 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 RECEIVABLES. 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, nor 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 have 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 a 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 Buyer has full corporate power, authority
and capacity to enter into this Agreement and to carry out the
transactions contemplated hereby. The Board of Directors of the
Buyer has duly authorized 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,
as to enforceability, to bankruptcy, insolvency, fraudulent
transfer, reorganization moratorium and similar laws of general
applicability relating to or affecting creditor's rights and to
general equity principles. This Agreement and 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 31, 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 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 of the 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 make
effective the transactions contemplated by this Agreement and not
to take any actions which would be advise to such result. If at
any time after the Closing Date any further action is necessary
or desirable to carry out the purposes of any such agreements,
Seller or the proper agents of Seller shall take all such
necessary action. In addition, the Seller and the Company shall
at all times
cooperate with the Buyer to assist them in obtaining refunds,
due the Company as a result of any tax benefits granted to the
Company.
5.4 NON-SOLICITATION. The Seller shall not take any actions to seek,
encourage, solicit or support any inquiry, proposal, expression of interest or
offer from any other person or entity in connection with or with respect to an
acquisition, combination or similar transaction, involving the Company and/or
the Shares or a substantial portion 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 Section 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 31, 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. Buyer and Seller may agree in
writing an another closing date if and consents or approvals are pending at the
Closing Date.
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, 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 under the
terms and conditions of the letter of intent and confidentiality
agreement (the "Agreements") with access to the Company's business, records and
any information which the Buyer deemed necessary, in its sole and absolute
discretion, to conduct a satisfactory due diligence examination, pursuant to
which the Buyer may, among other things, has, (i) evaluated the Company, its
assets and liabilities, (ii) satisfied itself, in its sole and absolute
discretion, that the Company's assets are being received in a satisfactory
condition, (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 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 Companyshall 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 31, 1998, 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 Section 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, delivered and
complied with by them prior to the Closing Date.
7.2 COVENANTS PERFORMED. All of the covenants, terms and conditions
of this Agreement to be complied with and performed by the Buyer on or
before the Closing Date shall have been duly complied and performed.
7.3 PURCHASE PRICE. The Buyer shall have delivered to the Seller the
Purchase Price in accordance with Section 1.1 of this Agreement.
7.4 FAIRNESS OPINION.The Companyshall 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, (b) the end of the Due Diligence Period and (c)
which as of the Closing Date have not been undisclosed to the Buyer in writing.
8.3 INDEMNIFICATION PROCEDURE. A party or parties hereto agreeing to be
responsible for or to indemnify against any matter pursuant to this Agreement is
referred to herein as the "Indemnifying Party" and the other party or parties
claiming indemnification hereunder is referred to as the "Indemnified Party". An
Indemnified Party under this Agreement shall give prompt written notice to the
Indemnifying Party of any liability which might give rise to a claim for
indemnity under this Agreement. As to any claim by a third party, the
Indemnified Party may participate in the defense, compromise or settlement of
any such matter through the Indemnified Party's own attorneys and at the
Indemnifying Party's own expense; each of the indemnifying and the Indemnified
Party shall provide such cooperation and such reasonable access to its books,
records and properties as the other party shall reasonable request with respect
to any such matter; and the parties hereto agree to cooperate with each other in
order to ensure the proper and adequate defense thereof. The Buyer may setoff
against the amount of any other payments due to Seller hereunder or otherwise,
including, without limitation the Note, any 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 31, 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: Xxxxxxx Xxxxxx
Inversiones Xx Xxxxxx, X.X.
400 meters west of
National Panasonic Plant,
San Xxxxxx Alajuela
If to the Buyer: Xxxxxxx Xxxxxx
00 Xxxxxxx Xxx,
Xxxxx 000,
Xxxxx Xxxxxx,
Xxxxxxx, 00000
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. Notwithstanding any
provision in these rules, the arbitration panel at any such arbitration
proceeding shall consist of three arbitrators. One arbitrator will be designated
by 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/ XXXXXXX CHAVES_________________
XXXXXXX XXXXXX
PRESIDENT
INVERSIONES XX XXXXXX, X.X.
BY:____/s/ XXXXXXX CHAVES_________________
XXXXXXX XXXXXX
PRESIDENT
COSTA RICA INTERNATIONAL, INC.
