EXHIBIT 10.2
Stock Purchase Agreement and Unsecured Promissory Note dated October 5, 2001,
between Ucino Finance Limited and Converge Global, Inc.
STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT ("Agreement"), dated as of October 5, 2001,
is by and between Ucino Finance Limited, a corporation ("PURCHASER"), and
Converge Global, Inc., a Utah corporation ("SELLER") (collectively, the
"PARTIES").
W I T N E S S E T H
WHEREAS, Seller is the owner of 1,718,514 shares of Common Stock (the
"Shares") of EssTec, Inc., a Nevada corporation (the "Company").
WHEREAS, SELLER has offered for sale to PURCHASER 800,000 shares of common
stock of the Company (the "Shares") at a purchase price of $0.10 per Share.
WHEREAS, SELLER desires to sell to PURCHASER and PURCHASER desires to
purchase from SELLER, 800,000 Shares upon 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 SHARES. Upon execution of this Agreement (the "Closing"),
subject to the terms and conditions herein set forth, and on the basis of the
representations, warranties and agreements herein contained, SELLER shall sell
to PURCHASER, and PURCHASER shall purchase from SELLER, the Shares.
1.2 INSTRUMENTS OF CONVEYANCE AND TRANSFER. As soon as practicable after
the Closing, SELLER shall return its certificate representing the Shares to the
Company and shall request Company to issue and deliver a certificate or
certificates representing the Shares of SELLER to PURCHASER sufficient to
transfer all right, title and interest in the Shares to PURCHASER, with any
remaining shares to be certificated and sent to SELLER.
1.3 CONSIDERATION AND PAYMENT FOR THE SHARES. In consideration for the
Shares, PURCHASER shall pay a purchase price of a total of eighty thousand
dollars ($80,000) ($0.10 per Share) ("Purchase Price"). The Purchase Price may
be paid in cash or check made payable to the Seller; or by a promissory note
payable to the Seller, but only to the extent authorized by the Seller.
ARTICLE 2
REPRESENTATIONS AND COVENANTS OF SELLER AND PURCHASER
2.1 SELLER hereby represents and warrants that:
(a) The Shares issued hereunder (the "Shares") have been duly
authorized by the appropriate corporate action of the Company.
(b) SELLER shall transfer title, in and to the Shares to PURCHASER
free and clear of all liens, security interests, pledges, encumbrances, charges,
restrictions, demands and claims, of any kind and nature whatsoever, whether
direct or indirect or contingent.
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(c) As soon as practicable after the Closing Date, SELLER shall
return its certificate representing the Shares to the Company and shall request
Company to issue and deliver a certificate or certificates representing the
Shares of SELLER to PURCHASER sufficient to transfer all right, title and
interest in the Shares to PURCHASER, with any remaining shares to be
certificated and sent to SELLER. The certificate representing the Shares which
will be issued to PURCHASER shall be subject to no liens, security interests,
pledges, encumbrances, charges, restrictions, demands or claims in any other
party whatsoever, except as set forth in the legend on the certificate, which
legend shall provide as follows:
THE SHARES (OR OTHER SECURITIES) REPRESENTED BY THIS CERTIFICATE HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933. THE SHARES MAY NOT BE
SOLD OR TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN OPINION OF
COUNSEL THAT AN EXEMPTION FROM REGISTRATION UNDER SUCH ACT IS AVAILABLE.
(d) PURCHASER acknowledges that the Shares will initially be
"restricted securities" (as such term is defined in Rule 144 promulgated under
the Securities Act of 1933, as amended ("Rule 144"), that the Shares will
include the foregoing restrictive legend, and, except as otherwise set forth in
this Agreement, that the Shares cannot be sold unless registered with the United
States Securities and Exchange Commission ("SEC") and qualified by appropriate
state securities regulators, or unless PURCHASER obtains written consent from
the Company and otherwise complies with an exemption from such registration and
qualification (including, without limitation, compliance with Rule 144).
(e) PURCHASER acknowledges and agrees that SELLER makes no other
representations or warranties with respect to the Shares or the SELLER.
2.2 PURCHASER represents and warrants to SELLER as follows:
(a) PURCHASER has adequate means of providing for current needs and
contingencies, has no need for liquidity in the investment, and is able to bear
the economic risk of an investment in the Shares offered by SELLER of the size
contemplated. PURCHASER represents that PURCHASER is able to bear the economic
risk of the investment and at the present time could afford a complete loss of
such investment. PURCHASER has had a full opportunity to inspect the books and
records of the SELLER and to make any and all inquiries of SELLER officers and
directors regarding the SELLER and its business as PURCHASER has deemed
appropriate.
(b) PURCHASER is an "Accredited Investor" as defined in Regulation D
of the Securities Act of 1933 (the "Act") or PURCHASER, either alone or with
PURCHASER's professional advisers who are unaffiliated with, have no equity
interest in and are not compensated by SELLER or any affiliate or selling agent
of SELLER, directly or indirectly, has sufficient knowledge and experience in
financial and business matters that PURCHASER is capable of evaluating the
merits and risks of an investment in the Shares offered by SELLER and of making
an informed investment decision with respect thereto and has the capacity to
protect PURCHASER's own interests in connection with PURCHASER's proposed
investment in the Shares.
(c) PURCHASER is acquiring the Shares solely for PURCHASER'S own
account as principal, for investment purposes only and not with a view to the
resale or distribution thereof, in whole or in part, and no other person or
entity has a direct or indirect beneficial interest in such Shares.
(d) PURCHASER will not sell or otherwise transfer the Shares without
registration under the Act or an exemption therefrom and fully understands and
agrees that PURCHASER must bear
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the economic risk of PURCHASER'S purchase for an indefinite period of time
because, among other reasons, the Shares have not been registered under the Act
or under the securities laws of any state and, therefore, cannot be resold,
pledged, assigned or otherwise disposed of unless they are subsequently
registered under the Act and under the applicable securities laws of such states
or unless an exemption from such registration is available.
ARTICLE 3
MISCELLANEOUS
3.1 ENTIRE AGREEMENT. This Agreement sets forth the entire agreement and
understanding of the parties hereto with respect to the transactions
contemplated hereby, and supersedes all prior agreements, arrangements and
understandings related to the subject matter hereof. No understanding, promise,
inducement, statement of intention, representation, warranty, covenant or
condition, written or oral, express or implied, whether by statute or otherwise,
has been made by any party hereto which is not embodied in this Agreement or the
written statements, certificates, or other documents delivered pursuant hereto
or in connection with the transactions contemplated hereby, and no party hereto
shall be bound by or liable for any alleged understanding, promise, inducement,
statement, representation, warranty, covenant or condition not so set forth.
3.2 NOTICES. Any notice, request, instruction, or other document required
by the terms of this Agreement, or deemed by any of the parties hereto to be
desirable, to be given to any other party hereto shall be in writing and shall
be given by facsimile, personal delivery, overnight delivery, or mailed by
registered or certified mail, postage prepaid, with return receipt requested, to
the following addresses:
TO SELLER: Converge Global, Inc.
--------- 000 Xxxxxxxx Xxxxxxxxx, Xxxxx 000
Xxxxx Xxxxxx, XX 00000
Facsimile: (000) 000-0000
Attn: Xx. Xxxxx Xxxxxx, President
TO PURCHASER: Ucino Finance Limited
------------ Xxxx Xxxx X.X. Xxx 000
Xxxx Xxxx, Xxxxxxx, XXX
Xxxxxxxxx: (_____)________________
Attn: Xx. Xxxxxx Xxxxxx
WITH COPY TO: Xxxx Xxxxxxx Xxxxxxxxx, LLP
------------ 00000 Xxx Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxx, XX 00000-0000
Facsimile: (000) 000-0000
Attn: Xxxxx Xxxxxx, Esq.
The persons and addresses set forth above may be changed from time to time by a
notice sent as aforesaid. If notice is given by facsimile, personal delivery, or
overnight delivery in accordance with the provisions of this Section, said
notice shall be conclusively deemed given at the time of such delivery. If
notice is given by mail in accordance with the provisions of this Section, such
notice shall be conclusively deemed given seven days after deposit thereof in
the United States mail.
3.3 WAIVER AND AMENDMENT. Any term, provision, covenant, representation,
warranty or condition of this Agreement may be waived, but only by a written
instrument signed by the party entitled to the benefits thereof. The failure or
delay of any party at any time or times to require performance of
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any provision hereof or to exercise its rights with respect to any provision
hereof shall in no manner operate as a waiver of or affect such party's right at
a later time to enforce the same. No waiver by any party of any condition, or of
the breach of any term, provision, covenant, representation or warranty
contained in this Agreement, in any one or more instances, shall be deemed to be
or construed as a further or continuing waiver of any such condition or breach
or waiver of any other condition or of the breach of any other term, provision,
covenant, representation or warranty. No modification or amendment of this
Agreement shall be valid and binding unless it be in writing and signed by all
parties hereto.
3.4 CHOICE OF LAW. This Agreement and the rights of the parties hereunder
shall be governed by and construed in accordance with the laws of the State of
California including all matters of construction, validity, performance, and
enforcement and without giving effect to the principles of conflict of laws.
3.5 JURISDICTION. The parties submit to the jurisdiction of the Courts of
the County of Orange, State of California or a Federal Court empanelled in the
State of California for the resolution of all legal disputes arising under the
terms of this Agreement, including, but not limited to, enforcement of any
arbitration award.
3.6 COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which shall
together constitute one and the same instrument.
3.7 ATTORNEYS' FEES. Except as otherwise provided herein, if a dispute
should arise between the parties including, but not limited to arbitration, the
prevailing party shall be reimbursed by the non-prevailing party for all
reasonable expenses incurred in resolving such dispute, including reasonable
attorneys' fees exclusive of such amount of attorneys' fees as shall be a
premium for result or for risk of loss under a contingency fee arrangement.
3.8 TAXES. Any income taxes required to be paid in connection with the
payments due hereunder, shall be borne by the party required to make such
payment. Any withholding taxes in the nature of a tax on income shall be
deducted from payments due, and the party required to withhold such tax shall
furnish to the party receiving such payment all documentation necessary to prove
the proper amount to withhold of such taxes and to prove payment to the tax
authority of such required withholding.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement, as of
the date first written hereinabove.
"SELLER"
--------
Converge Global, Inc.,
a Utah corporation
/s/ Xxxxx Xxxxxx
----------------------------
By: Xxxxx Xxxxxx
Its: President
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"PURCHASER"
-----------
Ucino Finance Limited,
a Corporation
/s/ Fillipo Israel
----------------------------
By: Fillipo Israel
Its: Director
ACKNOWLEDGED:
"COMPANY"
EssTec, Inc.,
a Nevada corporation
/s/ Xxxxx Xxxx
----------------------------
By: Xxxxx Xxxx
Its: President
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PROMISSORY NOTE
$80,000 Dated: October 5, 2001
1. PRINCIPAL. FOR VALUE RECEIVED, Ucino Finance Limited, a Corporation
("Maker"), promises to pay to the order of Converge Global, Inc., a Utah
corporation ("Holder"), at the address of Holder known to Maker or at such other
place as Holder may from time to time designate in writing, the principal sum of
eighty thousand dollars ($80,000) (the "Obligation"), which represents the
principal amount owed by Holder to Maker.
2. INTEREST. No interest shall accrue on the unpaid principal amount of
the Obligation.
3. PAYMENTS. Maker shall pay to Holder the Obligation in the following
manner:
(a) One payment consisting of total amount of the principal balance
on the Maturity Date (as defined below).
(b) "MATURITY DATE" shall mean the date which is one year from the
date of this Note.
4. TRANSACTION. This Note is the promissory note issued by Maker to
Holder to evidence the Obligation (as defined below).
5. PREPAYMENT. Maker shall be entitled to prepay this Note prior to the
Maturity Date without premium or penalty.
6. APPLICATIONS OF PAYMENTS. Payments received by Holder pursuant to the
terms hereof shall be applied in the following manner: first, to the payment of
all expenses, charges, late payment fees, costs and fees incurred by or payable
to Holder and for which Maker is obligated pursuant to the terms of this Note,
and second, to the payment of principal.
7. EVENTS OF DEFAULT. The occurrence of any of the following events shall
constitute an Event of Default hereunder
(a) Failure of Maker to pay the principal upon the Maturity Date;
(b) Failure of Maker to pay any amount or perform any other
obligation under the Agreement;
(c) Maker shall admit in writing its inability to, or be generally
unable to, pay its undisputed debts as such undisputed debts become
due;
(d) Maker shall: (i) apply for or consent to the appointment of, or
the taking of possession by, a receiver, custodian, trustee, examiner
or liquidator of all or a substantial part of its property, (ii) make
a general assignment for the benefit of its creditors, (iii) commence
a voluntary case under the United States Bankruptcy Code, (iv) file a
petition seeking to take advantage of any other law relating to
bankruptcy, insolvency, reorganization, liquidation, dissolution,
arrangement or winding-up, or composition or readjustment of debts;
(v) fail to controvert in a timely and appropriate manner, or
acquiesce in writing to, any petition filed against him in an
involuntary case under the United States Bankruptcy Code; or (vi)take
any action for the purpose of effecting any of the foregoing;
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(e) A proceeding or case shall be commenced, without the application
or consent of Maker, in any court of competent jurisdiction, seeking:
(i) its financial reorganization, liquidation or arrangement, or the
composition or readjustment of its debts; (ii) the appointment of a
receiver, custodian, trustee, examiner, liquidator or the like of
Maker or of all or any substantial part of its property; or (iii)
similar relief in respect of Maker under any law relating to
bankruptcy, insolvency, reorganization or composition or adjustment of
debts, and such proceeding or case shall continue undismissed, or an
order, judgment or decree approving or ordering any of the foregoing
shall be entered and continue unstayed and in effect, for a period of
30 or more days; or an order for relief against Maker shall be entered
in an involuntary case under the United States Bankruptcy Code; or
(f) A final judgment or judgments issued by a court of competent
jurisdiction for the payment of money in excess of $5,000 in the
aggregate (exclusive of judgment amounts fully covered by insurance
where the insurer has admitted liability in respect of such judgment)
or in excess of $10,000 in the aggregate (regardless of insurance
coverage) shall be rendered by a one or more governmental persons
having jurisdiction against Maker and the same shall not be discharged
(or provision shall not be made for such discharge), or a stay of
execution of the relevant judgment shall not be procured, within 30
days from the date of entry of such judgment and Maker shall not,
within that 30-day period, or such longer period during which
execution of the same shall have been stayed, appeal from and cause
the execution of such judgment to be stayed during such appeal.
8. REMEDIES; LATE PAYMENT PENALTY. Upon the occurrence of an Event of
Default and without demand or notice, Holder may declare the principal amount
then outstanding of the Obligation of Maker to be forthwith due and payable,
whereupon such amounts shall be immediately due and payable without presentment,
demand, protest or other formalities of any kind, all of which are hereby
expressly waived by Maker and Maker may exercise all rights and remedies
available to it under the Agreement or any succeeding agreement).
9. WAIVER. Maker hereby waives diligence, presentment, protest and
demand, notice of protest, dishonor and nonpayment of this Note and expressly
agrees that, without in any way affecting the liability of Maker hereunder,
Holder may extend any maturity date or the time for payment of any installment
due hereunder, accept security, release any party liable hereunder and release
any security now or hereafter securing this Note. Maker further waives, to the
full extent permitted by law, the right to plead any and all statutes of
limitations as a defense to any demand on this Note, or on any deed of trust,
security agreement, lease assignment, guaranty or other agreement now or
hereafter securing this Note.
10. ATTORNEYS' FEES; COSTS. Maker agrees to pay to Holder all costs and
expenses including attorneys' fees and costs, incurred by Holder in connection
with the negotiation, preparation or execution of the Loan and this Note. If
this Note is not paid when due or if any Event of Default occurs, Maker promises
to pay all costs of enforcement and collection, including but not limited to,
Holder's attorneys' fees, whether or not any action or proceeding is brought to
enforce the provisions hereof.
11. SEVERABILITY. Every provision of this Note is intended to be
severable. In the event any term or provision hereof is declared by a court of
competent jurisdiction, to be illegal or invalid for any reason whatsoever, such
illegality or invalidity shall not affect the balance of the terms and
provisions hereof, which terms and provisions shall remain binding and
enforceable.
12. NUMBER AND GENDER. In this Note the singular shall include the plural
and the masculine shall include the feminine and neuter gender, and vice versa,
if the context so requires.
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13. HEADINGS. Headings at the beginning of each numbered paragraph of this
Note are intended solely for convenience and are not to be deemed or construed
to be a part of this Note.
14. CHOICE OF LAW. This Note shall be governed by and construed in
accordance with the laws of the State of California. Any action to enforce this
Note shall be brought in state or federal courts located in Orange County,
California.
15. MISCELLANEOUS.
(a) All notices and other communications provided for hereunder shall
be in writing and shall be delivered by United States mail, certified
or registered, return receipt requested to the respective party at the
address provided in the Agreement or otherwise provided for such
purpose.
(b) No failure or delay on the part of Holder or any other holder of
this Note to exercise any right, power or privilege under this Note
and no course of dealing between Maker and Holder shall impair such
right, power or privilege or operate as a waiver of any default or an
acquiescence therein, nor shall any single or partial exercise of any
such right, power or privilege preclude any other or further exercise
thereof or the exercise of any other right, power or privilege. The
rights and remedies herein expressly provided are cumulative to, and
not exclusive of, any rights or remedies, which Holder would otherwise
have. No notice to or demand on Maker in any case shall entitle Maker
to any other or further notice or demand in similar or other
circumstances or constitute a waiver of the right of Holder to any
other or further action in any circumstances without notice or demand.
(c) Maker and any endorser of this Note hereby consent to renewals
and extensions of time at or after the maturity hereof, without
notice, and hereby waive diligence, presentment, protest, demand and
notice of every kind.
(d) Maker may not assign its rights or obligations hereunder without
prior written consent of Holder. Subject to compliance with applicable
federal and state securities laws, Holder may (i) assign all or any
portion of this Note without the prior consent of Maker or (ii) sell
or agree to sell to one or more other persons a participation in all
or any part of the Note without the prior consent of Maker. Upon
surrender of the Note, Maker shall execute and deliver one or more
substitute notes in such denominations and of a like aggregate unpaid
principal amount or other amount issued to Holder and/or to Holder's
designated transferee or transferees. Holder may furnish any
information in the possession of Holder concerning Maker, or any of
its respective subsidiaries, from time to time to assignees and
participants (including Prospective assignees and participants).
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IN WITNESS WHEREOF, Maker has caused this Note to be duly executed and
delivered as of the day and year and at the place first above written.
MAKER:
UCINO FINANCE LIMITED,
a BVI corporation
/s/ Fillipo Israel
-----------------------------------
BY: Fillipo Israel
ITS: Director
HOLDER:
CONVERGE GLOBAL, INC.,
a Utah corporation
/s/ Xxxxx Xxxxxx
-----------------------------------
BY: Xxxxx Xxxxxx
ITS: President
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