SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934*
RICA FOODS, INC.
(Name of Issuer)
COMMON STOCK, $.001 PAR VALUE PER SHARE
(Title of Class of Securities)
762582-20-3
(CUSIP Number)
ANTONIO ECHEVERRIA
TERNERINA
HATILLO, CENTRO, de la UNIDAD
SANITARIA 500 metros al este
011 (506) 385 - 6943
(Name, Address and Telephone Number of Person Authorized to Receive
Notices and Communications)
FEBRUARY 27,1998
(Date of Event Which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to report
the acquisition that is the subject of this Schedule 13D, and is filing this
schedule because of Section 240.13d-1 (e), 240.13d-1 9f) or 240.13d-1(g), check
the following box [ ].
Note: Schedules filed in paper format shall include a signed original and five
copies of the schedule, including all exhibits. See Section 240.13d-7(b) for
other parties to whom copies are to be sent.
*The remainder of this cover page shall be filled out for a reporting person's
initial filing on this form with respect to the subject class of securities, and
for any subsequent amendment containing information which would alter
disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be deemed
to be "filed" for the purpose of Section 18 of the Securities Exchange Act of
1934 ("Act") or otherwise subject to the liabilities of that section of the Act
but shall be subject to all other provisions of the Act (however, see the
Notes).
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CUSIP No. 762582-20-3 Page 2 of 19 Pages
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1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Comercial Angui, S.A.
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2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP# (a) [ x ]
(b) [ ]
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3 SEC USE ONLY
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4 SOURCE OF FUNDS*
OO - Corporate Reorganization
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5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) or 2(e) [ ]
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6 CITIZENSHIP OR PLACE OF ORGANIZATION
Republic of Costa Rica
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7 SOLE VOTING POWER -0-
NUMBER OF SHARES ----------------------------------------------------
BENEFICIALLY OWNED BY 8 SHARED VOTING POWER 2,447,058
EACH ----------------------------------------------------
REPORTING PERSON 9 SOLE DISPOSITIVE POWER -0-
WITH ----------------------------------------------------
10 SHARED DISPOSITIVE POWER 2,447,058
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12 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
2,447,058
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12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES* [ ]
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13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
11.0%
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14 TYPE OF REPORTING PERSON*
CO
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*SEE INSTRUCTIONS BEFORE FILLING OUT!
INCLUDE BOTH SIDES OF THE COVER PAGE, RESPONSES TO ITEMS 1-7
(INCLUDING EXHIBITS OF THE SCHEDULE, AND THE SIGNATURE ATTESTATION.)
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CUSIP No. 762582-20-3 Page 3 of 19 Pages
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1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Antonio Echeverria
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2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP# (a) [ x ]
(b) [ ]
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3 SEC USE ONLY
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4 SOURCE OF FUNDS*
OO - Corporate Reorganization
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5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) or 2(e) [ ]
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6 CITIZENSHIP OR PLACE OF ORGANIZATION
Republic of Costa Rica
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7 SOLE VOTING POWER -0-
NUMBER OF SHARES ----------------------------------------------------
BENEFICIALLY OWNED BY 8 SHARED VOTING POWER 2,447,058
EACH ----------------------------------------------------
REPORTING PERSON 9 SOLE DISPOSITIVE POWER -0-
WITH ----------------------------------------------------
10 SHARED DISPOSITIVE POWER 2,447,058
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11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
2,447,058
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12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES* [ ]
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13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
11.O%
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14 TYPE OF REPORTING PERSON*
IN
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*SEE INSTRUCTIONS BEFORE FILLING OUT!
INCLUDE BOTH SIDES OF THE COVER PAGE, RESPONSES TO ITEMS 1-7
(INCLUDING EXHIBITS OF THE SCHEDULE, AND THE SIGNATURE ATTESTATION.)
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Page 4 of 19 Pages
ITEM 1. SECURITY AND ISSUER
This statement on Schedule 13D relates to the shares of common stock, $.001 par
value, ("Common Stock") of Rica Foods, Inc., a Nevada corporation (the
"Issuer"). The address of the Issuer's principal executive offices is 95 Merrick
Way, Suite 507, Coral Gables, Florida 33134.
ITEM 2. IDENTITY AND BACKGROUND
(a) This statement is being filed on behalf of (1) Comercial Angui,
S.A., ("Angui") a Costa Rican corporation, owned 100% by Antonio
Echeverria and (2) Antonio Echeverria ("Echeverria"), a Costa
Rican citizen.
(b) The business address of both Angui and Echeverria is Ternerina
Hatillo Centro, de la Unidad Sanitaria, 500 metros al este.
(c) Echeverria's principal occupation is animal feed and related
products enterprises, a Costa Rican corporation ("As de Oros").
(d) Neither Angui nor Echeverria has, in the last five years, been
convicted in any criminal proceedings (excluding traffic
violations or similar misdemeanors).
(e) Neither Angui nor Echeverria has, in the last five years, been a
party to a civil proceeding of a judicial or administrative body
of competent jurisdiction which resulted in it or him being
subject to a judgment, decree, or final order enjoining future
violations of, or prohibiting or mandating activities subject to,
federal or state securities laws or finding any violation with
respect to such laws.
(f) Angui is a corporation organized under the laws of the Republic
of Costa Rica. Echeverria is a citizen of the Republic of Costa
Rica.
ITEM 3. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION.
No cash purchase price was paid by either Angui nor Echeverria in connection
with the contractual relationship described in Item 4 below. The shares reported
herein were acquired as a result of a corporate reorganization.
ITEM 4. PURPOSE OF TRANSACTION.
Angui entered into a Stock Purchase Agreement with the Issuer, dated January 22,
1998, to sell 56.38% of the outstanding voting stock of As de Oros in exchange
for (i) 2,447,058 (815,686 post-split) shares of Common Stock, having a then
current market value price of approximately $2.6 million or $1.0625 per share,
and (ii) a promissory note with the stated amount of $2.4 million due on January
22, 2000 (the "Purchase Agreement").
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Page 5 of 19 Pages
Neither Angui nor Echeverria has any present intention of purchasing or selling
any shares of Common Stock at any time in open market transactions, privately
negotiated transactions, or otherwise. Neither Angui nor Echeverria has any
present plans or proposals that relate to or would result in any of the actions
specified in clauses (a) through (j) of Item 4 of Schedule 13D under the
Securities Exchange Act of 1934, as amended.
ITEM 5. INTEREST IN SECURITIES OF THE ISSUER
(a) (i) Angui beneficially owns 2,447,058 (815,686 post-split)
shares of Common Stock of the Issuer.
(ii) Echeverria beneficially owns 2,447,058 (815,686
post-split) shares of Common Stock of the Issuer.
The number of shares of Common Stock believed to be issued
and outstanding as of April 30, 1998 for purposes of this
Schedule 13D is 22,256,454 shares. Therefore, Angui and
Echeverria are jointly deemed to beneficially own 11% of the
issued and outstanding shares of Common Stock.
(b) (i) Angui has shared voting and dispositive power with respect
to the 2,447,058 shares of Common Stock, due to its
ownership by Echeverria.
(ii) Echeverria has shared voting and dispositive power over the
2,447,058 shares of Common Stock, due to his ownership of
Angui.
(c) Other than as disclosed above in Item 4, neither Angui nor
Echeverria has engaged in any transactions with respect to
the Common Stock during the past 60 days.
(d) No person, other than Echeverria, has the right to receive
or the power to direct the receipt of dividends from, or the
proceeds from the sale of, Echeverria's Common Stock.
(e) Not applicable.
ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH RESPECT TO
SECURITIES OF THE ISSUER
Except as described herein, there are no contracts, agreements, arrangements, or
relationships (legal or otherwise) between Angui or Echeverria and any other
person with respect to any securities of the Issuer, including but not limited
to the transfer of voting of any securities, finder's fees, joint ventures, loan
or option agreements, puts or calls, guarantees of profits, division of profits
or loss, or the giving or withholding of proxies.
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Page 6 of 19 Pages
ITEM 7. MATERIAL TO BE FILED AS EXHIBITS
Stock Purchase Agreement dated January 22, 1998 by and between Issuer and Angui.
SIGNATURES
After reasonable inquiry and to the best of knowledge and belief, the
undersigned certify that the information set forth in this statement is true,
complete and correct.
October 27, 1999
COMERCIAL ANGUI, S.A.
By:/s/ Antonion Echeverria
------------------------------------
Antonio Echeverria
President
Comercial Angui, S.A.
/s/ Antonion Echeverria
------------------------------------
Antonio Echeverria
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Page 7 of 19 Pages
EXHIBIT TO
SCHEDULE 13d
Stock Purchase Agreement
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Page 8 of 19 Pages
STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT ("Agreement") is made and entered into as of
January 22, 1998, by and between Costa Rica International, Inc., a corporation
organized under the laws of the State of Nevada (the "Buyer"), Comercial Angui,
S.A. a corporation, organized under the laws of the Republic of Costa Rica,
corporate identification card number 3-101-049922 (the "Seller").
WITNESSETH:
WHEREAS, the Seller owns approximately ninety-five percent (95%) of the
issued and outstanding shares of Corporacion As de Oros, S.A. (the "Company"),
and seventy-five percent (75%) of the total issued and outstanding voting stock
of the Company is held in a trust ("Trust");
WHEREAS, the Company has authorized a total of two million (2,000,000)
shares of common stock, par value one thousand Colones ([cent sign]1,000) per
share, of which one million, five hundred thousand (1,500,000) shares are issued
and outstanding, and has authorized a total of one million, seven hundred
thousand (1,700,000) shares of preferred stock, par value one thousand Colones
([cent sign]1,000) per share, of which one hundred fifty-eight thousand, three
hundred (158,300) shares are issued and outstanding; and
WHEREAS, the Seller desires to sell, convey, transfer, assign and deliver
to the Buyer the issued and outstanding shares of common and preferred stock of
the Company, which represent fifty-one percent (51%) of the issued and
outstanding voting 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;
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 SHARES. Subject to the terms of this Agreement,
the Seller agrees to sell, assign, transfer and convey the Shares to the Buyer,
free and clear of any liens, security interests, encumbrances and restrictions
of any kind whatsoever, and the Buyer agrees to purchase the Shares from the
Seller. The sale, assignment, transfer and conveyance of the Shares by the
Seller to the Buyer shall be effected on or before April 30, 1998 by the
Seller's delivery to the Buyer of the certificates therefore duly endorsed for
transfer or accompanied by stock powers duly executed in blank, as necessary to
effectively vest in the Buyer all of the right, title and interest of the Seller
in and to the Shares and by the execution of a firm entry in the Shareholders
Registry Book of the Company.
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Page 9 of 19 Pages
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, as consideration in the aggregate of five million dollars
(US$5,000,000.00) (the "Purchase Price"), the Buyer shall deliver to the Seller
at the Closing (as such term is defined herein): (i) an amount equal to two
million four hundred thousand dollars (US$2,400,000.00) payable in an
interest-free promissory note to mature on January 22, 2000 executed by the
Buyer in favor of the Seller in the aggregate principal amount of
US$2,400,000.00 (the "Note"); and (ii) 2,477,058 shares of Costa Rica
International, Inc. at a price of US$1.0625 per share, once the United States
Securities and Exchange Commission ("SEC") approves the issuance of such shares,
or as the parties may agree n writing.
ARTICLE II
2.1 The transfer and delivery to be made pursuant to this Agreement (the
"Closing") shall take place in Nassau, Bahamas on April 30, 1998, or such other
time and date as may be mutually agreed upon by the Seller and the Buyer (the
"Closing Date").
2.2 OBLIGATIONS OF THE SELLER AT THE CLOSING. At the Closing, the Seller
shall: (i) deliver to the Buyer certificates representing the Shares, duly
endorsed for transfer in blank, or accompanied by stock powers duly executed in
blank, and (ii) a shareholders' corporate book entry reflecting the transfer of
the Shares to the Buyer.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE SELLER
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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 EXIXTENCE; AUTHORIZATION; ENFORCEABILITY.
(a) ORGANIZATION OF THE COMPANY, GOOD STANDING. The Company is a
corporation duly incorporated, 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. 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 Company has full corporate power, authority and
capacity to enter into this Agreement and the agreements, documents
and instruments contemplated hereby
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Page 10 of 19 Pages
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 by the Board of Directors and the shareholders of the
Company if necessary, and no other corporate proceedings on its
part are necessary to authorize this Agreement and the transactions
contemplated hereby.
(c) NO CONFLICTS. The execution, delivery and performance of this
Agreement by the Seller we 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 contract to which the Seller or the Company
is a party or by which the assets of the Company are bound,
including that certain trust agreement executed between the Company
and its creditors. 3.2 Litigation. To the best of the Seller's
knowledge, there is no litigation or 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, in connection with respect to the transactions
contemplated hereby. 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 presented or will present to the
Buyer within forty (40) days of the date first written above the balance sheets
of the Company at December 31, 1997 the related unaudited income statements,
unaudited statements of stockholder's equity and statements of changes in
financial position for the fiscal years ended 1997, in each case including the
notes thereto, if any (collectively, the "Financial Statements"). The Company's
balance sheets (including the notes thereto) fairly present the financial
position 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 material respects in accordance with
applicable legal and accounting requirements and reflect only actual
transactions, and the Financial Statement been prepared in accordance with such
books 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 an of April 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.
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Page 11 of 19 Pages
3.5 TAX MATTERS. The Company has duly filed 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 tax
assessments, fees, penalties, interest and other governmental charges that have
been incurred or are due or claimed to be due from it by any municipal, 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, distribution on dividends, 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 municipal, 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, easements, rights of way, building or use restrictions,
exceptions, variances or other limitations of whatever kind or character 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 sublessee in possession
under each lease or sublease to which it is a lessee or sublessee. 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 in excess of
an amount to be determined subsequent to the Buyer's due diligence and
satisfactory to the Buyer. All accounts and notes receivables 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
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Page 12 of 19 Pages
free and clear of all Liens and have either been collected or are collectible
and will be collected in the ordinary course of business, except for bad debt
duly noted and approved by the Company.
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 any of the Companies 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.
The Buyer has the corporate power and authority, has taken all
action necessary and has obtained all necessary
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Page 13 of 19 Pages
permits 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 the execution, delivery and performance
of this Agreement, and the other agreements and transactions
contemplated hereby, and on or before the closing date, the Company
shall have held stockholders' meetings whereby such stockholders
approved the consummation of the transaction contemplated herein.
(c) ENFORCEMENT, ETC. This Agreement is a valid and binding agreement
of the Buyer enforceable in accordance withits 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 ail 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.
(e) LITIGATION. There is no litigation or other actions, suits,
proceedings or investigations pending, or, to the Buyer's
knowledge, threatened, at law or in equity, or before any
governmental entity, against the Buyer that challenge, or may have
the effect of interfering with, any of the transactions
contemplated hereby.
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 April 30, 1998, unless the
prior written consent of the Buyer is first obtained, the Seller will use his
best efforts to preserve the value of the Company's assets and the business
organizations of the Company intact, to preserve the goodwill of customers and
others having business relations with the Company, to maintain its
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Page 14 of 19 Pages
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 keen in force at not less than their
present limits, all policies of insurance, and to make no material change in the
customary terms and conditions.
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
indication 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 undertakes and agrees to (i) in good faith, 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 his 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 inimical to such result. In case 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 shall at all times
cooperate with the Buyer and the Company to assists 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 o the assets of the Company, and the Seller
will promptly 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.
<PAGE>
Page 15 of 19 Pages
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, 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 contained in Article 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
respect 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 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 title 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.
6.3 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 Act 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 discretion of the Buyer.
6.4 DUE DILIGENCE. The Seller shall have provided the Buyer under the terms
and conditions of the letter of intent and confidentiality agreement, both dated
September 18, 1997 (the "Agreements") with access to the Company's business,
records and any information which the Buyer deemed necessary, in its sole
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 were free of all Liens except as disclosed
to the Buyer, (iii) satisfied itself, in its sole and absolute discretion, that
the Company does not have any debt, liabilities or other obligations, whether
absolute, contingent or otherwise which has not been disclosed in writing by the
Seller 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. Such due diligence was completed by the Buyer fifteen (15)
days before the execution of this Agreement (the "Due Diligence Period").
<PAGE>
Page 16 of 19 Pages
6.5 SHARE CERTIFICATES AND OTHER DOCUMENTS. The Seller shall have delivered
to the Buyer certificates evidencing the shares duly endorsed for transfer or
accompanied by stock powers duty executed in blank. The Buyer shall have
received from the Seller, an executed entry in the Shareholders Registry Book
and evidence of having complied with, or obtained a waiver from, the terms of
the above-mentioned trust agreement, and any and all such other documents and
instruments, duly executed where required or appropriate, as it may reasonably
request in connection with the transaction contemplated by this Agreement.
6.6 OPINION OF SELLER'S COUNSEL. The Sellers shall have delivered an
opinion of counsel in a form reasonably satisfactory to the Buyer in the form of
Exhibit B hereto.
6.7 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.
ARTICLES 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 April 30, 1998 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 Article 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 April
30, 1998. 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 2.1 of this Agreement.
ARTICLE VIII
INDEMNIFICATION
---------------
8.1 OBLIGATIONS OF THE BUYER. The Buyer agrees to defend, indemnify and
hold harmless the Seller from, against and in respect of any and all demands,
claims, actions or causes of actions, 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 Seller as a
result of arising from, in connection with or incident to any material breach or
material
<PAGE>
Page 17 of 19 Pages
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 THE SELLER. The Seller agrees to defend, indemnify and
hold harmless the Buyer from, against and in respect of any and all 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 the 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
respect of 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 or (b) The end
of the Due Diligence Period and (iii) any which as of the Closing 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, to 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 al all amounts, due to the Buyer
pursuant to any and all Claims that the Buyer may have against the Seller
hereunder including without limitation with respect to the indemnification of
the Buyer hereunder by the 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 shares 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.
<PAGE>
Page 18 of 19 Pages
ARTICLE IX
SURVIVAL OF TERMS, REPRESENTATIONS
----------------------------------
9.1 SURVIVAL. The representations and warranties contained herein shall be
true at and as of April 30, 1998, 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 is binding upon
and shall inure to the benefit of the parties hereto and their respective
herein, executors, administrators, representatives and successors 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,
without regard to its choice of law principles.
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 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 to be
given 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: Antonio Echeverria
Ternerina
Hatillo, Centro, de la
Unidad Sanitaria 500
metros al este
If to the Buyer: Calixto Chaves
95 Merrick Way,
Suite 507,
Coral Gables, Florida, 33134
<PAGE>
Page 19 of 19 Pages
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, 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 the Buyer, another
arbitrator will be designated by the Seller and the third arbitrator will be a
person mutually agreed upon by the Buyer and the 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 the Buyer and the 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/ Antonion Echeverria
------------------------------------
Antonio Echeverria
President
Comercial Angui, S.A.
By:/s/ Calixto Chaves
------------------------------------
Calixto Chaves
President
Costa Rica International, Inc.
