THE SECURITIES THAT ARE THE SUBJECT OF THIS AGREEMENT HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR UNDER THE
SECURITIES LAWS OF ANY STATE, AND WILL BE OFFERED AND SOLD IN RELIANCE ON
EXEMPTIONS FROM THE REGISTRATION REQUIREMENTS OF FEDERAL AND STATE LAW BY VIRTUE
OF THE COMPANY'S INTENDED COMPLIANCE WITH SECTION 4(2) OF THE ACT, THE
PROVISIONS OF REGULATION D PROMULGATED THEREUNDER, AND PARALLEL EXEMPTIONS UNDER
STATE LAW. THE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY ANY
REGULATORY AUTHORITY. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
STOCK PURCHASE AGREEMENT
Dynatec International, Inc.
Attn. Xxxxxxxxx X. Xxxxxxxxx, Xx.
0000 Xxxx Xxxxx Xxxxx Xxxxx
Xxxx Xxxx Xxxx, Xxxx 00000
Dear Sirs:
The undersigned hereby agree to purchase shares of the common stock
of Dynatec International, Inc., a Utah corporation ("Dynatec" or the "Company"),
according to the terms and conditions set forth in this Stock Purchase Agreement
(the "Agreement").
1. Purchase of Shares. Subject to the terms and conditions of this
Agreement, the undersigned hereby agree to purchase and acquire from the Company
shares of the Company's common stock, par value $.01 per share (the "Shares"),
having an aggregate purchase price of at least SEVEN HUNDRED SEVENTY-FIVE
THOUSAND DOLLARS (U.S. $775,000) (the "Minimum Investment Amount) and a maximum
aggregate purchase price of ONE MILLION DOLLARS (U.S. $1,000,000) (the "Purchase
Price") (any amount of the Purchase Price paid in excess of the Minimum
Investment Amount being referred to herein as the "Supplemental Investment
Amount"). The Purchase Price is to be paid by the undersigned by wire transfer
to the Company of cash, which payment shall be made on or before June 30, 2000,
provided that the undersigned agree to provide a minimum of ONE HUNDRED THOUSAND
DOLLARS (U.S. $100,000) to the Company per week until the Purchase Price has
been paid in full, commencing as of the week of May 8-12, 2000. The total amount
of the Minimum Investment Amount that shall be paid by each of the undersigned
is set forth adjacent to their respective signatures, below. The number of
Shares that shall be issuable to the undersigned in consideration of their
payment of the Purchase Price shall be calculated as follows:
a. As to the Minimum Investment Amount, by dividing the total dollar
amount of the Minimum Investment Amount paid to the Company as of Closing,
as that term is defined in Section 2, below, by $1.3125, which is
acknowledged by the parties to be 100% of the fair market value of the
Company's common stock as of the date of this Agreement, as determined by
reference
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to the closing bid price per share of the Company's common stock as quoted by
The Nasdaq Stock Market on the trading day prior to the date of this Agreement.
b. As to the Surplus Investment Amount, by dividing the total dollar
amount of such Surplus Amount paid to the Company as of Closing by One
Hundred Percent (100%) of the average of the closing bid prices of the
Company's common stock as quoted by the Nasdaq Stock Market for the five
(5) trading days immediately preceding the date the undersigned paid all or
any portion of the Surplus Investment Amount.
2. Closing; Issuance of Shares. The closing (the "Closing") of the purchase
and sale of the Shares as described in this Agreement shall occur within five
(5) business days after the earlier of (x) June 30, 2000 or (y) the date on
which the undersigned shall have paid the entire Purchase Price to the Company
(or if, after payment of at least $775,000 of the Purchase Price, the date on
which the undersigned shall have notified the Company of its or their decision
not to pay any more of the Purchase Price).
3. Representations and Warranties of the Company. The Company represents
and warrants to each of the undersigned as follows:
a. Organization and Qualification. The Company is a corporation, duly
incorporated, validly existing and in good standing under the laws of the
jurisdiction of its incorporation, with the requisite corporate power and
authority to own and use its properties and assets and to carry on its
business as currently conducted. The Company has no subsidiaries other than
those set forth on Schedule 3(a) attached hereto (collectively the
"Subsidiaries" and individually a "Subsidiary"). Each of the Subsidiaries
is a corporation, duly incorporated validly existing and in good standing
under the laws of the jurisdiction of its incorporation, with the requisite
corporate power and authority to own and use its properties and assets and
to carry on its business as currently conducted. Each of the Company and
the Subsidiaries is duly qualified to do business and is in good standing
as a foreign corporation in each jurisdiction in which the nature of the
business conducted or property owned by it makes such qualification
necessary, except where the failure to be so qualified or in good standing,
as the case may be, does not, individually or in the aggregate, (x)
adversely affect the legality or validity of the Shares or this Agreement,
or (y) have or result in a material adverse effect on the results of
operations, assets, prospects, or condition (financial or otherwise) of the
Company and the Subsidiaries, taken as a whole (either of (x) or (y) a
"Material Adverse Effect").
b. Authorization; Enforcement. The Company has the requisite corporate
power and authority to enter into and to consummate the transactions
contemplated by this Agreement, and otherwise to carry out its obligations
hereunder. The execution and delivery of this Agreement by the Company and
the consummation by it of the transactions contemplated hereby have been
duly authorized by all necessary action on the part of the Company and no
further action is required by the Company. This Agreement has been duly
executed by the Company and, when delivered in accordance with the terms
hereof, will constitute the legal, valid and binding obligation of the
Company enforceable against the
-2-
Company in accordance with its terms, except as such enforceability may be
limited by applicable bankruptcy, insolvency, reorganization, moratorium,
liquidation or similar laws relating to or affecting generally the
enforcement of creditors' rights and remedies or by other equitable
principles of general application. Neither the Company nor any Subsidiary
is in material violation of any of the provisions of its respective
articles of incorporation, bylaws or other charter documents.
c. Capitalization. The number of authorized, issued and outstanding
shares of capital stock of the Company is set forth in Schedule 3(c)
attached hereto. No shares of common stock are entitled to preemptive or
similar rights, nor is any holder of common stock entitled to preemptive or
similar rights arising out of any agreement or understanding with the
Company by virtue of this Agreement. Except as disclosed in Schedule 3(c),
there are no outstanding options, warrants, script rights to subscribe to,
calls or commitments of any character whatsoever relating to, or, except as
a result of the purchase and sale of the Shares, rights or obligations
convertible into or exchangeable for, or giving any Person, as that term is
defined below, any right to subscribe for or acquire any common shares, or
contracts, commitments, understandings, or arrangements by which the
Company or any Subsidiary is or may become bound to issue additional common
shares, or securities or rights convertible or exchangeable into common
shares. "Person" means an individual or corporation, partnership, trust,
incorporated or unincorporated association, joint venture, limited
liability company, joint stock company, government (or an agency or
subdivision thereof) or other entity of any kind. The amount of the
Company's authorized but previously unissued common stock is sufficient to
allow for the issuance by the Company of the Shares.
d. Issuance of the Shares. The Shares are duly authorized, and, when
issued and paid for in accordance with the terms hereof, shall have been
validly issued, fully paid and nonassessable, free and clear of all liens,
encumbrances and rights of first refusal of any kind (collectively,
"Liens").
e. No Conflicts. The execution, delivery and performance of this
Agreement by the Company and the consummation by the Company of the
transactions contemplated hereby do not and will not (i) conflict with or
violate any provision of its Articles of Incorporation, Bylaws or other
charter documents (each as amended through the date hereof), (ii) subject
to obtaining the Required Approvals (as defined below), conflict with, or
constitute a default (or an event which with notice or lapse of time or
both would become a default) under, or give to others any rights of
termination, amendment, acceleration or cancellation (with or without
notice, lapse of time or both) of, any agreement, credit facility,
indenture or instrument (evidencing a Company debt or otherwise) to which
the Company or any Subsidiary is a party or by which any property or asset
of the Company or any Subsidiary is bound or affected, or (iii) result in a
violation of any law, rule, regulation, order, judgment, injunction, decree
or other restriction of any court or governmental authority to which the
Company is subject (including federal and state securities laws and
regulations), or by which any property or asset of the Company is bound or
affected, except in the case of each of clauses (ii) and (iii) above, as
does not, individually or in the aggregate, have or result in a Material
Adverse Effect, provided, that in the case of clauses (ii) and (iii)
-3-
above, the Company makes no representation or warranty about the extent to
which the transactions contemplated by this Agreement will comply with the
rules and regulations of the principal market or exchange on which its
common stock is listed or traded.
f. Consents and Approvals. Except as is set forth in the Disclosure
Materials, as hereafter defined, neither the Company nor any Subsidiary is
required to obtain any consent, waiver, authorization or order of, give any
notice to, or make any filing or registration with, any court or other
federal, state, local or other governmental authority or other Person in
connection with the execution, delivery and performance by the Company of
this Agreement, other than (i) an application to the Nasdaq Stock Market
for the listing therewith of the Shares, (ii) the filing of a Form D with
the U.S. Securities and Exchange Commission, (iii) applicable state "Blue
Sky" filings, and (iv) in all other cases where the failure to obtain such
consent, waiver, authorization or order, or to give such notice or make
such filing or registration could not have or result in, individually or in
the aggregate, a Material Adverse Effect (the consents, waivers,
authorizations, orders, notices and filings referred to in clauses (i)-(iv)
of this Section 3(f)and identified herein and in the Disclosure Materials,
collectively, the "Required Approvals").
g. Litigation; Proceedings. There is no action, suit, written notice
of violation, proceeding or investigation pending or, to the knowledge of
the Company, threatened against or affecting the Company or any of its
Subsidiaries before or by any court, governmental or administrative agency
or regulatory authority (federal, state, county, local or foreign) which
adversely affects or challenges the legality, validity or enforceability of
this Agreement or the Shares.
h. Private Offering. Assuming the accuracy of the representations and
warranties of each of the undersigned set forth in Section 4, the offer,
issuance and sale of the Shares to the undersigned as contemplated hereby
are exempt from the registration requirements of the Securities Act of
1933, as amended (the "Securities Act"). Neither the Company nor any Person
acting on its behalf has taken any action that could subject the offering,
issuance or sale of the Shares to the registration requirements of the
Securities Act.
i. SEC Reports. The Company has filed all reports required to be filed
by it under the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), including pursuant to Section 13(a) or 15(d) thereof, for the one
year preceding the date hereof (or such shorter period as the Company was
required by law to file such material) (the foregoing materials being
collectively referred to herein as the "SEC Reports" and, together with the
Schedules or other written disclosure provided by the Company to the
undersigned in connection with this Agreement the "Disclosure Materials")
on a timely basis or has properly filed a notification as required under
Rule 12b-25 of the Exchange Act and has filed any SEC Reports as to which
such notification has been filed prior to the expiration of any applicable
time period specified therein. To the Company's knowledge, as of their
respective dates, the SEC Reports complied in all material respects with
the requirements of the Securities Act and the Exchange Act and, the rules
and regulations promulgated thereunder.
-4-
j. Patents and Trademarks. The Company has, or has rights to use, all
patents, patent applications, trademarks, trademark applications, service
marks, trade names, copyrights, licenses and rights (collectively, the
"Intellectual Property Rights") that are necessary for use in connection
with its business as currently conducted, or which the failure to have
would have a Material Adverse Effect. To the best knowledge of the Company,
all such Intellectual Property Rights are enforceable and there is no
existing infringement by another Person of any of the Intellectual Property
Rights. Except to the extent described in the Disclosure Materials, no
action for patent infringement is pending or threatened against the Company
in writing and, to the Company's knowledge, the Company is not infringing
on any patent or other intellectual property rights of any third party.
k. Regulatory Permits. The Company and its Subsidiaries possess all
certificates, authorizations and permits issued by the appropriate federal,
state or foreign regulatory authorities necessary to conduct their
respective businesses as described in the SEC Reports, except where the
failure to possess such permits could not, individually or in the
aggregate, have or result in a Material Adverse Effect ("Material
Permits"), and neither the Company nor any such Subsidiary has received any
written notice of proceedings relating to the revocation or modification of
any Material Permit.
4. Representations and Warranties of Undersigned. To induce the Company's
acceptance of this Agreement, the undersigned each hereby severally and not
jointly represent and warrant to the Company and its agents and attorneys as
follows:
a. Organization; Authority. The undersigned, if not a natural person,
is duly organized, validly existing and in good standing under the laws of
the jurisdiction of its organization, with the requisite corporate or other
entity power and authority to enter into and to consummate the transactions
contemplated by this Agreement and otherwise to carry out its obligations
thereunder. The purchase by the undersigned of the Shares hereunder has
been duly authorized by all necessary action on the part of the
undersigned. This Agreement has been duly executed and delivered by the
undersigned and constitutes the valid and legally binding obligation of the
undersigned, enforceable against it in accordance with its terms, except as
such enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium, liquidation or similar laws relating to or
affecting generally the enforcement of creditors' rights and remedies or by
other equitable principles of general application.
b. Accredited Status. The undersigned is an "accredited investor"
within the meaning of Section 501(a) of Regulation D under the Securities
Act.
c. Investment Intent. The undersigned is acquiring the Shares for its
own account for investment purposes only and not with a view to or for
distributing or reselling the Shares or any part thereof or interest
therein, without prejudice, however, to the undersigned's right, subject to
the provisions of this Agreement, at all times to sell or otherwise dispose
of all or any part of the Shares pursuant to an effective registration
-5-
statement under the Securities Act and in compliance with all applicable
state securities laws or under an exemption from such registration
requirements.
d. Access to Information. The undersigned acknowledges that it, he or
she has been afforded (i) the opportunity to ask such questions as it, he
or she has deemed necessary of, and to receive answers from,
representatives of the Company concerning the terms and conditions of the
offering of the Shares and the merits and risks of investing in the Shares;
(ii) access to information about the Company and the Company's financial
condition, results of operations, business, properties, management and
prospects sufficient to enable it to evaluate its, his or her investment;
and (iii) the opportunity to obtain such additional information which the
Company possesses or can acquire without unreasonable effort or expense
that is necessary to make an informed investment decision with respect to
the investment and to verify the accuracy and completeness of the
information contained in the Disclosure Materials. The undersigned further
acknowledges that it, he or she understands that the Company is subject to
the periodic reporting requirements of the Exchange Act, and the
undersigned has reviewed or received copies of any such reports that have
been requested by it, her or him. Without limiting the generality of the
foregoing, the undersigned represents that it, he or she has read the
Company's Annual Report on Form 10-KSB for the fiscal year ended December
31, 1999, and the Company's Quarterly Report on Form 10-QSB for the period
ended March 31, 2000.
e. Liquidity. The undersigned presently has sufficient liquid assets
to pay the Purchase Price to be paid by it under this Agreement. The
undersigned's overall commitments to investments that are not readily
marketable is not disproportionate to the undersigned's net worth, and the
undersigned's investment in the Company will not cause such overall
commitment to become excessive. The undersigned has adequate means of
providing for its current needs and contingencies and has no need for
liquidity in the undersigned's investment in the Company or for a source of
income from the Company. The undersigned is capable of bearing the economic
risk and the burden of this investment, including, but not limited to, the
possibility of the complete loss of the value of the Shares and the limited
transferability of the Shares, which may make the liquidation of the Shares
impossible in the near future.
f. Sole Party in Interest. The undersigned represents that it is the
sole and true party in interest with respect to that portion of the Shares
to be acquired by it, and no other person has or will have upon the
issuance of the Shares any beneficial ownership interest in the Shares or
any portion of the Shares, whether direct or indirect.
g. Knowledge and Experience. The undersigned, or its management or
agent, as the case may be, is experienced in evaluating and making
speculative investments, and has the capacity to protect the undersigned's
interests in connection with the acquisition of the Shares. The
undersigned, or its management, as the case may be, has such knowledge and
experience in financial and business matters that it is capable of
evaluating the merits and risks of the undersigned's investment in the
Company. The undersigned has been informed
-6-
that an investment in the Shares is speculative and has concluded that its
proposed investment is appropriate in light of its overall investment
objectives and financial situation.
h. Exclusive Reliance on this Agreement. In making the decision to
purchase the Shares, the undersigned has relied exclusively upon
information included in this Agreement or other information contained in
the Company's publicly available reports and other materials that have been
provided to the undersigned, and investigations made by the undersigned or
the undersigned's managers and agents, and not on any other
representations, promises or information, whether written or verbal, by any
person.
i. Advice of Counsel. The undersigned understands the terms and
conditions of this Agreement, has investigated all issues to the
undersigned's satisfaction, has consulted with such of the undersigned's
own legal counsel or other advisors as the undersigned deems necessary, and
is not relying, and has not relied on the Company for an explanation of the
terms or conditions of this Agreement. The undersigned further
acknowledges, understands and agrees that, in arranging for the preparation
of this Agreement, the Company has not attempted to procure legal
representation for the undersigned's interests.
j. No Conflict With Other Instruments, Agreements or Obligations. The
undersigned's purchase of the Shares will not result in the breach of any
term or provision of, constitute an event of default under, or require the
consent or approval of any third-party pursuant to any contract, agreement,
instrument, relationship or legal obligation to which the undersigned is
subject or to which any of its properties, operations or management are
subject.
k. No Brokers or Finders. The undersigned agrees to indemnify the
Company and its officers, employees, agents and representatives from and
against any claim by any third person for any commission, brokerage fee,
finders fee, or other payment with respect to this Agreement or the
transactions contemplated hereby based upon any alleged agreement or
understanding between such party and such third person, whether expressed
or implied, arising from the actions of such party. The covenants set forth
in this section 4(k) shall survive the Closing Date and the consummation of
the transactions contemplated by this Agreement.
l. Source of Purchase Price. The undersigned represents that no
portion of the Purchase Price was obtained by a loan from any third party.
m. Manner of Sale. At no time was the undersigned presented with or
solicited by or through any leaflet, public promotional meeting, television
advertisement or any other form of general solicitation or advertising.
n. Restricted Shares. The undersigned understands and acknowledges
that the Shares have not been registered under the Act, or any state
securities laws, and will be issued in reliance upon certain exemptions
from the registration requirements of those laws, and thus cannot be resold
unless they are registered under the Act or unless the Company has first
-7-
received an opinion of competent securities counsel that an exemption from
registration is available for such resale. With regard to the restrictions
on resales of the Shares, the undersigned is aware (i) of the limitations
and applicability of Securities and Exchange Commission Rule 144; (ii) that
the Company will issue stop transfer orders to its stock transfer agent in
the event of attempts to improperly transfer the Shares; and (iii) that a
restrictive legend will be placed on the certificates representing the
Shares, which legend will read substantially as follows:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT") OR UNDER THE
SECURITIES LAWS OF ANY STATE. THESE SECURITIES MAY NOT BE OFFERED, SOLD,
TRANSFERRED, PLEDGED OR HYPOTHECATED WITHOUT COMPLIANCE WITH THE
REGISTRATION OR QUALIFICATION PROVISIONS OF THE ACT OR APPLICABLE STATE
LAWS, OR PURSUANT TO AN AVAILABLE EXEMPTION FROM SUCH REGISTRATION
REQUIREMENTS. FURTHERMORE, THE COMPANY WILL INSTRUCT ITS STOCK TRANSFER
AGENT NOT TO RECOGNIZE ANY SALE OF THESE SECURITIES UNLESS THE COMPANY HAS
FIRST RECEIVED AN OPINION OF COUNSEL, SATISFACTORY TO THE COMPANY AND ITS
SECURITIES COUNSEL, THAT AN EXEMPTION FROM SUCH REGISTRATION REQUIREMENTS
IS AVAILABLE.
o. Reliance. The undersigned understands and acknowledges that (i) the
Shares are being offered and sold to it, him or her without registration
under the Securities Act in a private placement that is exempt from the
registration provisions of the Securities Act and (ii) the availability of
such exemption depends in part on, and the Company will rely upon the
accuracy and truthfulness of, the representations in this Section 4, and
the undesigned hereby acknowledges and consents to such reliance.
p. No Group. The undersigned presently have no agreement,
understanding or arrangement to act together or with any other person for
the purpose of acquiring, holding or voting the Shares or any other voting
capital stock of the Company, or any other relationship, understanding or
agreement that would make them a "group" for purposes of Rule 13d-5(b)
under the Exchange Act, and the undersigned will not enter into any such
agreement or arrangement in writing or otherwise after the Closing.
q. Residency. The undersigned, if an entity, represents that its
jurisdiction of incorporation is as indicated on Schedule A hereto, and, if
a natural person, represents that its state or country of residences is as
indicated on Schedule A hereto.
r. Accuracy of Representations and Information. All representations
made by the undersigned in this Agreement, and all information provided by
the undersigned to the Company or its agents or representatives concerning
the undersigned is correct and complete
-8-
as of the date hereof. If there is any material change in such information
before the actual issuance of the Shares, the undersigned immediately will
provide such information in writing to the Company.
5. Indemnification.
a. Indemnification By the Company. The Company agrees to indemnify
each of the undersigned and hold each of the undersigned harmless from and
against any and all liability, damage, cost or expense, including
reasonable attorneys' fees, incurred on account or arising out of: (i) any
inaccuracy in the representations and warranties of the Company set forth
herein; and (ii) any action, suit or proceeding based upon (A) the claim
that said representations or warranties were inaccurate or misleading or
otherwise cause for obtaining damages or redress from the undersigned; or
(B) the disposition of the Shares or any portion thereof.
b. Indemnification By the Undersigned. The undersigned severally and
not jointly agree to indemnify the Company and hold the Company harmless
from and against any and all liability, damage, cost or expense, including
reasonable attorneys' fees, incurred on account or arising out of: (i) any
inaccuracy in the representations and warranties of the undersigned set
forth herein; (ii) the disposition of the Shares, or any portion thereof,
by the undersigned contrary to the representations and warranties set forth
herein and any restrictions on transfer that may be noted on the
certificates representing the Shares; and (iii) any action, suit or
proceeding based upon (A) the claim that said representations or warranties
were inaccurate or misleading or otherwise cause for obtaining damages or
redress from the Company; or (B) the disposition of the Shares or any
portion thereof.
6. Use of Proceeds. The Company intends to use the proceeds of the Purchase
Price received from the undersigned for operating capital and for the payment of
trade payables and selling, general and administrative expenses.
7. Alternative Structure as Convertible Debt. If, and only if, the Nasdaq
Stock Market shall for any reason determine that approval of the Company's
shareholders shall be required as a precondition to the consummation of the
transactions contemplated by this Agreement in order to preserve the listing of
the Company's common stock on the Nasdaq Stock Market, the undersigned agree
that the Company shall proceed as follows: (i) the Company shall issue to the
undersigned, pro rata, as many shares of common stock as shall be allowed by the
Nasdaq Stock Market and shall receive therefor a pro rata portion of the
Purchase Price anticipated by this Agreement; and (ii) the Company shall receive
any additional portion of the total Purchase Price anticipated by this Agreement
as an unsecured loan ("Provisional Loans") from the undersigned in the amount of
Purchase Price received from the undersigned and for which the undersigned will
not receive shares of the Company's common stock. The Provisional Loans shall
bear simple interest at the lowest applicable federal rate of imputed interest
as determined by reference to the Internal Revenue Code of 1986, as amended,
which interest shall be calculated by reference to a 360-day year. Interest on
the Provisional Loans shall be payable only in cash. The principal amount of the
Provisional Loans shall be automatically converted into the number of shares of
common stock otherwise issuable (but
-9-
not yet issued) under this Agreement upon the approval by the Company's
shareholders of the transactions contemplated by this Agreement. The Company
agrees, if Provisional Loans are made pursuant to this Section 8, to seek the
approval of its shareholders on the transactions contemplated by this Agreement
at the earliest practical opportunity. In the event the Company's shareholders
shall refuse to approve the transactions contemplated by this Agreement, the
Provisional Loans shall become immediately due and payable at any time after the
annual or special meeting of the Company's shareholders at which such
shareholders refuse to approve such transactions.
8. Miscellaneous Provisions.
a. Attorneys' Fees. In the event of a default in the performance of
this Agreement, the defaulting party or parties, in addition to all other
obligations of performance hereunder, shall pay reasonable attorneys' fees
and costs incurred by the non-defaulting party or parties to enforce
performance of this Agreement.
b. Choice of Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Utah, without regard to choice of
law rules. Each of the parties consents to the exclusive jurisdiction and
venue of the U.S. District Court sitting in the District of Utah or the
state courts of the State of Utah located in Salt Lake City, Salt Lake
County, Utah, in connection with any dispute arising under this Agreement
and hereby waives, to the maximum extent permitted by law, any objection
including any objection based on forum non conveniens, to the bringing of
any such proceeding in such jurisdictions.
c. Counterparts. This Agreement may be executed in one or more
counterparts, which when signed shall constitute a single contract.
d. Entire Agreement. This Agreement contains the entire agreement
between the parties relating to the purchase of the Shares, and may be
amended only by a written document signed by all of the parties hereto.
e. Headings. The headings of the sections and paragraphs of this
Agreement have been inserted for convenience of reference only and do not
constitute a part of this Agreement.
f. Severability. Should any one or more of the provisions of this
Agreement be determined to be illegal or unenforceable, all other
provisions of this Agreement shall be given effect separately from the
provision or provisions determined to be illegal or unenforceable and shall
not be affected thereby.
g. Successors and Assigns. This Agreement shall be binding upon and
inure to the benefit of the undersigned and undersigned's successors, but
shall not be assignable by the undersigned without the prior written
consent of the Company. The undersigned's subscription shall inure to the
benefit of the Company, and upon its acceptance by the Company, shall be
binding upon the Company and its successors and assigns.
-10-
h. Warranties Survive Closing. All warranties, representations,
indemnities and agreements hereunder shall survive the date of this
Agreement and the offering of the Shares by the Company.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
[SIGNATURE PAGE FOLLOWS IMMEDIATELY]
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IN WITNESS WHEREOF, the undersigned have executed this Agreement as
of May 18, 2000.
NEXTGATE CORPORATION
Address:
00000 Xxxxxxxx Xxxxxx
Paradise Sub Division
Angeles City, Pampanga
By: /s/ ILLEGIBLE PHILIPPINES
Its: Amount of Investment:$210,000
NATIONAL UNION CORPORATION
Address:
Parkland Five
0000/0 Xxxxx Xxxx
Xxxxx Xxxxxxxxx Five
By: /s/ ILLEGIBLE Bangkok, THAILAND
Its: Amount of Investment:$260,000
INTERNATIONAL GATEWAY LIMITED
Address:
00xx Xxxxx Xx-Xxxx Xxxxxxxx
0 Xx-Xxxx Xxxxxxx
Xxxxxxx
By: /s/ ILLEGIBLE HONG KONG
Its: Amount of Investment:$305,000
DYNATEC INTERNATIONAL, INC.
By: /s/ Xxxxxxxxx X. Xxxxxxxxx, Xx.
Xxxxxxxxx X. Xxxxxxxxx, Xx.
Chairman and Chief Executive Officer
-12-
