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)
CALIXTO CHAVES
400 METERS WEST OF NATIONAL PANASONIC PLANT
SAN RAFAEL, ALAJUELA
011 (506) 239-2637
(Name, Address and Telephone Number of Person Authorized to Receive
Notices and Communications)
December 7, 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 17 Pages
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1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Inversiones La Ribera, 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 3,683,595
EACH ----------------------------------------------------
REPORTING PERSON 9 SOLE DISPOSITIVE POWER -0-
WITH ----------------------------------------------------
10 SHARED DISPOSITIVE POWER 3,683,595
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11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
3,683,595
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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)
28.67%
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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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Page 3 of 17 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 Inversiones La Ribera,
S.A., a Costa Rican corporation ("Ribera"), which is owned 100%
by Calixto Chaves, the Issuer's president, chief executive
officer and director, as well as a major shareholder of the
Issuer, and his spouse.
(b) The business address of Ribera is 400 meters West of National
Panasonic Plant, San Rafael, Alajuela.
(c) Ribera is a Costa Rican holding company which holds investments
in various agricultural projects in Costa Rica including, but not
limited to, a major shareholder in Corporacion Pipasa, S.A., a
Costa Rican corporation ("Pipasa"), which is the leading poultry
producer and marketer of poultry in Costa Rica.
(d) Ribera has not, in the last five years, been convicted in any
criminal proceedings (excluding traffic violations or similar
misdemeanors).
(e) Ribera has not, 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) Ribera is a corporation organized under the laws of the Republic
of Costa Rica.
ITEM 3. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION.
No cash purchase price was paid by Ribera 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.
Ribera entered into a Stock Purchase Agreement with the Issuer, dated September
28, 1998, and as amended on November 9, 1998, to sell 40.44% of the outstanding
voting stock of Pipasa in exchange for (i) 11,050,784 (3,683,595 post-split)
shares of Common Stock, having a then current market value price of
approximately $13,813,480.00 or $1.25 per share (the "Purchase Agreement").
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Page 4 of 17 Pages
Ribera does not have any present intention of purchasing or selling any shares
of Common Stock at any time in open market transactions, privately negotiated
transactions, or otherwise. Ribera does not have 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 Schedule13D under the Securities Exchange Act of 1934,
as amended.
ITEM 5. INTEREST IN SECURITIES OF THE ISSUER
(a) Ribera beneficially owns 3,683,595 shares of Common Stock of the
Issuer.
The number of shares of Common Stock believed to be issued and
outstanding as of December 17, 1999 for purposes of this Schedule
13D is 12,847,921 shares. Therefore, Ribera is deemed to
beneficially own 28.67% of the issued and outstanding shares of
Common Stock.
(b) Ribera has shared voting and dispositive power with respect to
the 3,683,595 shares of Common Stock.
(c) Other than as disclosed above in Item 4, Ribera has not engaged
in any transactions with respect to the Common Stock during the
past 60 days.
(d) No person, other than Calixto Chaves, as shareholder and
President of Ribera, has the right to receive or the power to
direct the receipt of dividends from, or the proceeds from the
sale of, Ribera'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 Ribera 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.
ITEM 7. MATERIAL TO BE FILED AS EXHIBITS
Stock Purchase Agreement, dated as of September 28, 1998 and amended on November
9, 1998, by and between the Company and Inversiones La Ribera, S.A.
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Page 5 of 17 Pages
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.
December 17, 1999
INVERSIONES LA RIBERA, S.A.
By: /S/ Calixto Chaves
---------------------------------
Calixto Chaves
President
Inversiones La Ribera, S.A.
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Page 6 of 17 Pages
Exhibit to
Schedule 13D
Stock Purchase Agreement
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Page 7 of 17 Pages
STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT ("Agreement") is made and entered into as of
September 28, 1998, and amended as of November 9, 1998, by and between RICA
FOODS, INC., a corporation organized under the laws of the State of Nevada (the
"BUYER"), and INVERSIONES LA RIBERA, S.A., a corporation organized under the
laws of the Republic of Costa Rica (the "SELLER").
WITNESSETH:
WHEREAS, the Seller owns forty point forty four percent (40.44%) of the issued
and outstanding shares of the common stock of Corporacion Pipasa, S.A. (the
"COMPANY").
WHEREAS, the Company has authorized a total of five million, fifty thousand
(5,050,000) shares of common stock, par value of one thousand (/cents/ 1.000)
colones per share, of which four million, five hundred and fifty thousand
($4,550,000) shares are issued and outstanding; and
WHEREAS, the Seller desires to sell, convey, transfer, assign and deliver to the
Buyer one million eight hundred forty thousand (1,840,000) shares of common
stock of the Company, issued and outstanding, which represent forty point
forty-four percent (40.44%) of the issued and outstanding shares of common stock
of the Company, all of which are owned by the Seller (collectively, the
"Shares"), upon and subject to the terms, covenants and conditions herein set
forth. Upon the transfer of the Shares to the Buyer, the Buyer shall own one
hundred percent (100%) of the total outstanding common stock of the Company.
NOW THEREFORE, for and in consideration of the premises and the mutual covenants
herein contained and other good and valuable consideration, the receipt and
sufficiency of which are hereby conclusively acknowledged, the parties hereto
hereby agree as follows:
ARTICLE I
1.1 SALE AND PURCHASE OF THE SHARES. Subject to the terms of this
Agreement, the Seller agrees to sell, assign, transfer, convey and
deliver the Shares to the Buyer, free and clear of any lien, security
interest, encumbrance, restriction, and claim of any kind whatsoever,
and the Buyer agrees to purchase the Shares from the Seller. The sale,
assignment, transfer, conveyance and delivery by the Seller of the
Shares to the Buyer shall be effected on or before January 31, 1999 by
the Seller's delivery to the Buyer of the stock certificates
evidencing the shares duly endorsed for transfer or accompanied by
stock powers duly executed in blank, this agreement signed before a
Notary Public under Costa Rican law, as necessary to effectively vest
in the Buyer all of the right, title and interest of the Seller in and
to the Shares. The parties may mutually agree in writing, and pursuant
to the mutual benefits provided by this Agreement, to the delivery by
the Buyer to the Seller of the stock certificates of the Company after
January 31, 1999, if so required and duly justified.
1.2 PURCHASE PRICE AND PAYMENT: In consideration of the sale,
assignment, transfer, conveyance and delivery of the Shares by the
Seller to the Buyer, and in reliance upon the representations,
warranties and covenants made herein by the Seller, the Buyer shall
make payment in the aggregate amount of thirteen million eight hundred
thirteen thousand four hundred eighty dollars ($13,813,480) (the
"PURCHASE PRICE") payable in the voting stock the Buyer represented by
the issuance of 11,050,784 shares at a price of $1.25 per share, the
closing price of the stock of the Buyer as of August 31, 1998.
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Page 8 of 17 Pages
ARTICLE II
2.1 THE CLOSING: The transfer and delivery of the shares to be made
pursuant to this Agreement (the "CLOSING") shall take place on January
29, 1999, or such other time and date as may be mutually agreed upon
in writing by the Seller and the Buyer (the "CLOSING DATE").
2.2 OBLIGATIONS OF SELLER AT CLOSING: At the Closing, the Seller shall
deliver to the Buyer stock certificates representing the Shares, duly
endorsed for transfer in blank, or accompanied by stock powers duly
hereof executed in blank, as described in Section 1.1.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE SELLER
The Seller hereby makes the following representations and warranties to the
Buyer, each of which shall be deemed material (and the Buyer, in executing,
delivering and consummating this Agreement, has relied and will rely upon the
correctness and completeness of each such representations and warranties
notwithstanding any independent investigation by the Buyer and/or the Buyer's
officers, directors, employees, representatives, agents and/or advisors):
3.1 ORGANIZATION AND EXISTENCE; AUTHORIZATION; ENFORCEABILITY.
(a) ORGANIZATION OF THE SELLER, GOOD STANDING. The Seller is a
corporation duly organized, validly existing and in good standing
under the laws of the Republic of Costa Rica with full corporate power
and authority to own, lease and operate its properties and assets and
conduct business in the manner in which such business is conducted.
The Seller has delivered to the Buyer true, correct and complete
copies of the Articles of Incorporation and By-laws of the Company.
(b) AUTHORIZATION. The Seller has full corporate power, authority
and capacity to enter into this Agreement and the agreements,
documents and instruments contemplated hereby and perform its
obligations hereunder and thereunder. The execution, delivery and
performance of this Agreement and all other agreements and
transactions contemplated hereby have been duly authorized and
approved by the Board of Directors and the shareholders of the Seller,
if necessary, no other corporate proceedings on its part are necessary
to authorize this Agreement and the transactions contemplated hereby,
and this Agreement constitutes a valid and binding Agreement of Seller
enforceable in accordance with its terms.
(c) NO CONFLICTS - SELLER. The execution, delivery and
performance of this Agreement by the Seller does not and will not
contravene, conflict with, or result in a violation or breach of any
provision of, or give any person or entity the right to declare a
default or exercise any remedy under, or to accelerate the maturity or
performance of, or to cancel, terminate or modify any agreement,
indenture, mortgage, deed of trust or other instrument to which the
Seller is a party or to which the assets of the Seller are bound.
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Page 9 of 17 Pages
3.2 LITIGATION. To the best of the Seller's knowledge, there is no
litigation for other actions, suits, proceedings or investigations
pending, at law or in equity, or before any governmental department,
commission, board, agency or instrumentality, or, to the best of the
Seller's knowledge, threatened against. To the best of the Seller's
knowledge, no event has occurred or circumstance exists that may give
rise or serve as the basis for commencement of any such action, suit,
investigation or other proceeding.
3.3 FINANCIAL STATEMENTS. The Seller has furnished the balance sheets
for the Company as of June 30, 1998, together with the related
unaudited income statements, unaudited statements of stockholder's
equity and statements of changes in financial position for the fiscal
years ending September 30, 1997, in each case including the notes
thereto, if any (collectively, the "Financial Statements"). The
Company's balance sheets (including the notes thereto) are true and
complete, and fairly present the financial condition of the Company as
of the respective dates thereof, and the other financial statements
referred to herein (including the notes thereto) fairly present the
results of operations and the financial position of the Company for
the respective fiscal periods or as of the respective dated therein
set forth. Each of such statements (including the notes thereto) has
been prepared in accordance with United States generally accepted
accounting principles consistently applied, and do not and will not
fail to disclose any material, extraordinary or out-of-period items.
The books and records of the Company have been, and are being,
maintained in all respects in accordance with applicable legal and
accounting requirements and reflect only actual transactions, and the
Financial Statements have been prepared in accordance with such books
of account and records.
3.4 ABSENCE OF CERTAIN CHANGES OR EVENTS. There has not been any
adverse change in the business, operations, properties, assets or
financial condition of the Company from that described in the
Financial Statements, and as of September 30, 1998. No fact or
condition of any character exists or will exist on the Closing Date
that the Seller believes will cause such an adverse change in the
future as a result of occurrences, acts or omissions prior to the
Closing Date.
3.5 TAX MATTERS. The Company has duly filed with the appropriate
governmental agencies all information returns, tax returns and reports
required by any jurisdiction to be filed by it on or prior to the date
hereof (including, without limitation, estimated tax returns and
returns with respect to employee or employment-related taxes). Such
returns are accurate and complete in all respects. The Company has
duly paid all taxes, assessments, fees, penalties, interest and other
governmental charges that have been incurred or are due or claimed to
be due from it by any federal, state, local, foreign or other taxing
authorities on or prior to the date of this Agreement (including,
without limitation, those due in respect to its properties, income,
business, capital stock, deposits, licenses, sales, payroll,
unemployment insurance, retirement, social security and occupational
disability, as applicable). To the extent that any taxes may be due
from the Company for any period prior to the Closing, such taxes will
have been paid prior to the Closing Date. There are no tax liens of
any kind or nature upon the properties or assets of the Company, and
there are no disputes pending or claims asserted for taxes upon the
Company or with respect to any of the assets of the Company. No
income, excise, sales and/or federal, state, local, foreign or other
tax returns are currently being audited by the appropriate taxing
authorities, and all prior audits have been concluded and resolved.
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Page 10 of 17 Pages
3.6 PROPERTY-TITLE AND LEASES. The Company has good, valid and
marketable title, free and clear of any and all liens, claims,
encumbrances, charges, defaults, equities, assessments, rights of way,
building or use restrictions, exceptions, variances or other
limitations of whatever kind or character, except as disclosed to
Buyer, to all of the real property and all other property owned by it,
except property and assets disposed of in the ordinary course of
business in accordance with the terms of this Agreement and for no
less than fair market value. All buildings, fixtures, equipment and
other property and assets held under leases or subleases by the
Company with third parties are held under valid instruments
enforceable in accordance with their terms, except as enforceability
may be limited by applicable bankruptcy laws. The Company is the
lessee or sub-lessee in possession under each lease or sublease to
which it is a lessee or sub-lessee. All rentals due by the Company
under each such lease or sublease have been paid, and there is no
default or any event or condition which, with the giving of notice,
lapse of time or occurrence or any further event or condition, would
become a default under any such lease or sublease, and the Company is
entitled to possession and quiet enjoyment of all such leased
properties in accordance with the terms of such instruments. All
operating facilities, buildings, furniture, equipment and other
tangible property owned or used by the Company are in good operating
condition and repair. Such tangible properties and all fixtures and
improvements to real property owned or leased by the Company, and the
use thereof, conform in all respects with all applicable building,
zoning, environmental and other requirements, and do not materially
encroach in any respect on property of others. All necessary occupancy
and other certificates and permits for the occupancy and lawful use
thereof and of the equipment and furnishings therein have been issued
and are in full force and effect and no current use of any assets of
the Company is dependent on a nonconforming use or other permit which
materially limit the Company's use thereof.
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3.7 RECEIVABLES. The Company shall not have accounts payable other
than the accounts disclosed to Buyer by Seller, and shall not have
accounts receivable other than the ones disclosed to Buyer by Seller,
nor in excess of an amount to be determined subsequent to the Buyer's
due diligence and satisfactory to the Buyer. All accounts and notes
receivable reflected in, or arising since the date of the most recent
balance sheet, are included in the Financial Statements, all of which
are owned by the Company and have either been collected or are
collectible and will be collected in the ordinary course of business.
None of such receivables are subject to any right of rescission.
3.8 INSURANCE. The Company maintains insurance policies and bonds in
force in such amounts and against such liabilities and hazards as are
customarily maintained by companies engaged in a business similar to
its business. The Company is not liable for any material retroactive
premium adjustments. All premiums due on such policies have been paid
and all such policies are enforceable and in full force and effect,
and the Company has not received any notice of premium increases or
cancellations.
3.9 INTANGIBLE PERSONAL PROPERTY. The Company validly holds and
possesses all patents, trademarks, service marks, copyrights, trade or
corporate names and licenses (collectively, "INTANGIBLE RIGHTS") which
are required and necessary for the Company to conduct its business as
presently conducted. The Company is the sole and exclusive owner of,
and has the unrestricted right to use, each of the Intangible Rights.
No claims or demands have been asserted against the Company with
respect to any of the Intangible Rights and no proceedings have been
instituted, are pending or have been threatened which challenge the
rights of the Company with respect thereto.
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Page 11 of 17 Pages
3.10 COMPLIANCE WITH LAWS. The Company has conducted and is conducting
its business in compliance with all applicable legal requirements.
Additionally, the Company has not been and is not in violation of any
permit, authorization, concession, agreement, contract, corporate
document or other legally enforceable obligation.
3.11 NO MISREPRESENTATIONS. None of the information contained in the
representations and warranties set forth in this Agreement, or in any
of the documents, certificates or instruments delivered or to be
delivered to any other party prior to or after the execution hereof as
required or permitted by any provision of this Agreement, contains or
will contain any untrue statement of a material fact or omits or will
omit to state a material fact necessary to make the statements
contained herein or therein not misleading as of the date hereof and
as of the Closing.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF THE BUYER
To induce the Seller to enter into this Agreement and to consummate the sale of
the Shares, the Buyer represents, warrants, covenants and agrees as follows:
4.1 ORGANIZATION AND EXISTENCE: AUTHORIZATION; ENFORCEABILITY.
(a) ORGANIZATION OF THE COMPANY; GOOD STANDING. The Buyer is a
corporation duly organized, validly existing and in good standing
under the laws of the State of Nevada, with full corporate power and
authority to own, lease or operate its properties and assets and
conduct its business a the manner in which it is currently conducted.
The Buyer has the corporate power and authority, will take all the
actions necessary and will obtain all necessary permits and
authorizations, if applicable, in order to execute and deliver this
Agreement and to consummate the transactions contemplated hereby.
(b) AUTHORIZATION, ETC. The Buyer has full corporate power,
authority and capacity to enter into this Agreement and to carry out
the transactions contemplated hereby. The Board of Directors of the
Buyer has duly authorized and approved the execution, delivery and
performance of this Agreement, and the other agreements and
transactions contemplated hereby, and if other corporate proceedings
on the part of the Buyer are necessary to authorize this Agreement and
the transactions, contemplated hereby, will be obtained before the
Closing Date.
(c) ENFORCEMENT, ETC. This Agreement is a valid and binding
agreement of the Buyer enforceable in accordance with its terms,
subject, as to enforceability, to bankruptcy, insolvency, fraudulent
transfer, reorganization moratorium and similar laws of general
applicability relating to or affecting creditor's rights and to
general equity principles. This Agreement and all of the provisions
hereof shall be binding upon and inure to the benefit of the Buyer and
any successor of the Buyer by way of reorganization, merger, or
consolidation and any assignee of all or substantially all of its
business and assets.
(d) NO CONFLICT. The execution, delivery and performance of this
Agreement by the Buyer does not and will not violate or constitute a
breach of or default under any legal requirement or order of any
governmental entity to which the Buyer is subject or under any
agreement or instrument of the Buyer, or to which the Buyer is subject
or is a party or by which the Buyer is otherwise bound.
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Page 12 of 17 Pages
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:
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5.1 ORDINARY COURSE. From the date hereof until January 31, 1999,
unless the prior written consent of the Buyer is first obtained, the
Seller will use its best efforts to preserve the value of the
Company's assets and the business operations of the Company, to
preserve the goodwill of customers and others having business
relations with the Company, to maintain its properties in good repair,
working order and condition, to comply with all laws applicable to it
and the conduct of its business, to keep in force all licenses,
permits and authorizations held by the Company necessary or desirable
for the conduct of the Company's business, to keep in full force and
effect at not less than their present limits, all policies of
insurance, and to make no material change in the customary terms and
conditions of such insurance policies.
5.2 NOTICE; REPRESENTATIVE. Seller will promptly give written notice
to Buyer upon becoming aware of any event or the impending or
threatened occurrence of any event which would cause or constitute a
breach of any of its representations and warranties contained or
referred to in this Agreement, and will use its best efforts to
prevent the same or remedy the same promptly. The Seller shall
promptly notify the Buyer of any material change in the normal course
of business, operation or properties of the Company, or of any
governmental complaints, investigations or hearings (or communications
indicating that the same may be contemplated), or the institution or
threat of litigation, and shall keep the Buyer fully informed of any
and all such events.
5.3 ACTIONS; FURTHER ASSURANCES. Subject to the terms and conditions
of this Agreement, the Seller shall (i), take all steps that are
within its power to cause to be fulfilled those of the conditions
precedent to Buyer's obligations to consummate the transactions
contemplated hereby that are dependent upon Seller's actions, and (ii)
use its best efforts to take, or cause to be taken, all action and to
do, or cause to be done, all things necessary, proper or advisable
under applicable laws to consummate and make effective the
transactions contemplated by this Agreement and not to take any
actions which would be advise to such result. If at any time after the
Closing Date any further action is necessary or desirable to carry out
the purposes of any such agreements, Seller or the proper agents of
Seller shall take all such necessary action. In addition, the Seller
and the Company shall at all times cooperate with the Buyer to assist
them in obtaining refunds, due the Company as a result of any tax
benefits granted to the Company.
5.4 NON-SOLICITATION. The Seller shall not take any actions to seek,
encourage, solicit or support any inquiry, proposal, expression of
interest or offer from any other person or entity in connection with
or with respect to an acquisition, combination or similar transaction,
involving the Company and/or the Shares or a substantial portion of
the assets of the Company, and the Seller will immediately inform the
Buyer of the existence of any such inquiry, proposal, expression of
interest or offer and shall not, without the prior written consent of
the Buyer, furnish any information to or participate in any
discussions or negotiations with, any other entity, person or group
(other than the Buyer and its agents and representatives) regarding
same. Neither the Seller nor the Company shall accept any inquiry,
proposal, expression of interest or offer, execute any agreement, or
enter into or consummate any transaction with respect to any of the
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Page 13 of 17 Pages
foregoing and the Seller shall take all actions necessary to ensure
that the Company does not take any such action.
ARTICLE VI
CONDITIONS TO THE OBLIGATIONS OF THE BUYER
Each and every obligation of the Buyer under this Agreement shall be subject to
the satisfaction by the Seller and the Company, on or before the Closing Date,
of each of the following conditions unless waived in writing by the Buyer:
6.1 REPRESENTATIONS AND WARRANTIES. The representations and warranties
of the Seller and the Company contained in Section III and elsewhere
in this Agreement and all information contained in any exhibit,
certificate, schedule or attachment hereto or in any writing delivered
by or on behalf of, the Seller or the Company to the Buyer, shall be
true and correct when made, and shall be true in all material respects
at and as of the Closing Date. The Seller and the Company shall have
performed and complied with all agreements, covenants and conditions
and shall have made all deliveries required by this Agreement to be
performed, delivered and complied with by them prior to the Closing
Date.
6.2 CONSENT AND APPROVALS. On or before January 31, 1999, the Seller
and/or the Company (as the case may be) shall have received in writing
all required approvals, consents or acquiescence from all governmental
and regulatory agencies, secured parties or other third parties with
respect to the transactions contemplated by this Agreement. Buyer and
Seller may agree in writing an another closing date if and consents or
approvals are pending at the Closing Date.
6.3 NO PENDING OR THREATENED LEGAL CLAIM. No (i) litigation of any
kind shall be pending or threatened; (ii) preliminary or permanent
injunction or other order issued by any court of competent
jurisdiction or by any federal or state governmental or regulatory
body; or (iii) statute, rule, regulation or executive order
promulgated or enacted by any federal or state governmental authority
after the date of this Agreement, which has or could have a material
adverse effect on the business, properties, prospects or condition,
financial or otherwise, of the Company, prohibits the consummation of
the transactions contemplated by this Agreement, or affects in any way
the Seller's right, title and interest to the Shares or the Seller's
ability to transfer the Shares to the Buyer in accordance with the
terms of this Agreement, shall be in effect pending or threatened.
6.4 NO MATERIAL ADVERSE CHANGE. No material adverse change in the
operations, the business, the financial condition or prospects of the
Company shall have occurred, no fact shall have arisen which has or
reasonably could be expected to have a material adverse effect on the
Company, or its properties, assets or the consummation of the
transactions contemplated hereby, in each case in the sole and
absolute discretion of the Buyer.
6.5 DUE DILIGENCE. The Seller shall have provided Buyer under the
terms and conditions of the letter of intent and confidentiality
agreement (the "Agreements") with access to the Company's business,
records and any information which the Buyer deemed necessary, in its
sole and absolute discretion, to conduct a satisfactory due diligence
examination, pursuant to which the Buyer may, among other things, has,
(i) evaluated the Company, its assets and liabilities, (ii) satisfied
itself, in its sole and absolute discretion, that the Company's assets
are being received in a satisfactory condition, (iii) satisfied
itself, in its sole and absolute discretion, that the Company does not
have any debts, liabilities or other obligations, whether absolute,
contingent or otherwise
<PAGE>
Page 14 of 17 Pages
which have not been disclosed in writing by the Seller, or are
reflected in the financial statements, and (iv) satisfied itself, in
its sole and absolute discretion, that the Company's licenses, permits
and authorizations required for the Company to operate its business
are valid. Such due diligence was completed by the Buyer fifteen (15)
days before the execution of this Agreement (the "Due Diligence
Period").
6.6 SHARE CERTIFICATES AND OTHER DOCUMENTS. The Seller shall have
delivered to the Buyer stock certificates evidencing the Shares duly
endorsed for transfer or accompanied by stock powers duly executed in
blank. The Buyer shall have received from the Seller all such other
documents and instruments, duly executed where required or
appropriate, as it may reasonably request in connection with the
transactions contemplated by this Agreement, as set forth in Section
1.1.
6.7 OPINION OF SELLER'S COUNSEL. The Seller shall have delivered an
opinion of counsel in a form reasonably satisfactory to the Buyer.
6.8 CORPORATE ACTION. The Company's Board of Directors shall have
approved the transactions contemplated by this Agreement if such
approval is necessary under the Company's Articles of Incorporation or
By-laws.
6.9 FAIRNESS OPINION. The Company shall have received an opinion from
a financial advisor stating that the transactions contemplated by this
Agreement are fair to the stockholders of the company from a financial
prospective.
6.10 STOCKHOLDER APPROVAL. The stockholders of the Company shall have
approved this Agreement at a meeting of the stockholders or pursuant
to a consent solicitation.
ARTICLE VII
CONDITIONS TO THE OBLIGATION OF THE SELLER
Each and every obligation of the Seller under this Agreement shall be subject to
the satisfaction by the Buyer, on or before January 31, 1998, of each of the
following conditions, unless waived in writing by the Seller:
7.1 REPRESENTATIONS AND WARRANTIES. The representations and warranties
of the Buyer contained in Section IV and elsewhere in this Agreement
and all information contained in any exhibit, certificate, schedule or
attachment hereto or in any writing delivered by or on behalf of the
Buyer to the Seller shall be true and correct when made, and shall be
true in all material respects at and as of the Closing Date. The Buyer
shall have performed and complied with all agreements, covenants, and
conditions and shall have made all deliveries required by this
Agreement to be performed, delivered and complied with by them prior
to the Closing Date.
7.2 COVENANTS PERFORMED. All of the covenants, terms and conditions of
this Agreement to be complied with and performed by the Buyer on or
before the Closing Date shall have been duly complied and performed.
7.3 PURCHASE PRICE. The Buyer shall have delivered to the Seller the
Purchase Price in accordance with Section 1.1 of this Agreement.
<PAGE>
Page 15 of 17 Pages
7.4 FAIRNESS OPINION. The Company shall have received an opinion from
a financial advisor stating that the transactions contemplated by this
Agreement are fair to the stockholders of the company from a financial
prospective.
7.5 STOCKHOLDER APPROVAL. The stockholders of the Company shall have
approved this Agreement at a meeting of the stockholders or pursuant
to a consent solicitation.
ARTICLE VIII
INDEMNIFICATION
8.1 OBLIGATIONS OF BUYER. The Buyer agrees to defend, indemnify and
hold harmless Seller from, against and in respect of any and all
demands, claims, actions or causes of action, losses, liabilities,
damages, assessments, deficiencies, taxes, cost and expenses,
including, without limitation, interest, penalties and reasonable
attorney's fees and expenses (collectively "Claims"), asserted
against, imposed upon or paid, incurred or suffered by Seller as a
result of, arising from, in connection with or incident to any
material breach or material inaccuracy of any representation,
warranty, covenant or agreement of the Buyer in this Agreement or in
any document, certificate or other instrument related hereto.
8.2 OBLIGATIONS OF SELLER. Seller agrees to defend, indemnify and hold
harmless the Buyer from, against and in respect of any and all
demands, claims actions or causes of action, losses, liabilities,
damages, assessments, deficiencies, taxes, cost and expenses,
including, without limitation, interest, penalties and reasonable
attorney's fees and expenses (collectively "Claims"), asserted
against, imposed upon or paid, incurred or suffered by the Buyer as a
result of, arising from, in connection with, or incident to (i) any
breach or inaccuracy of any representation, warranty, covenant or
agreement of Seller in this Agreement, or in any document, certificate
or other instrument related hereto, (ii) the inability, failure or
refusal of Seller to act in good faith in connection with this
Agreement, or the transactions, agreements, documents and instruments
delivered herewith or contemplated hereby, at any time from the date
of this Agreement until the later in time of (a) the Closing Date, (b)
the end of the Due Diligence Period and (c) which as of the Closing
Date have not been undisclosed to the Buyer in writing.
8.3 INDEMNIFICATION PROCEDURE. A party or parties hereto agreeing to
be responsible for or to indemnify against any matter pursuant to this
Agreement is referred to herein as the "Indemnifying Party" and the
other party or parties claiming indemnification hereunder is referred
to as the "Indemnified Party". An Indemnified Party under this
Agreement shall give prompt written notice to the Indemnifying Party
of any liability which might give rise to a claim for indemnity under
this Agreement. As to any claim by a third party, the Indemnified
Party may participate in the defense, compromise or settlement of any
such matter through the Indemnified Party's own attorneys and at the
Indemnifying Party's own expense; each of the indemnifying and the
Indemnified Party shall provide such cooperation and such reasonable
access to its books, records and properties as the other party shall
reasonable request with respect to any such matter; and the parties
hereto agree to cooperate with each other in order to ensure the
proper and adequate defense thereof. The Buyer may setoff against the
amount of any other payments due to Seller hereunder or otherwise,
including, without limitation the Note, any and all amounts, due to
the Buyer pursuant to any and all claims that the Buyer may have
against Seller hereunder including, without limitation, with respect
to the indemnification of the Buyer hereunder by Seller.
<PAGE>
Page 16 of 17 Pages
An Indemnifying Party shall not make any settlement of any claims
without the written consent of the Indemnified Party which consent
shall not be unreasonably withheld. Without limiting the generality of
the foregoing, it shall not be deemed unreasonable to withhold consent
to a settlement involving injunctive or other equitable relief against
the Indemnified Party or its assets, employees or business.
In a case where responsibility for a matter giving rise to a
claim for indemnification is shared by the parties, any of the parties
may elect to relieve the other of its obligations of indemnification
with respect to such matter and, subject to the provisions of this
section, such electing party may thereupon assume full control of the
resolution of such matter. If such election is not made, control shall
also be shared.
ARTICLE IX
SURVIVAL OF TERMS; REPRESENTATIONS
9.1 SURVIVAL. The representations and warranties contained herein
shall be true and correct as of January 31, 1999 as though such
representations and warranties were made at and as of the Closing
Date. All of these representations and warranties shall survive the
consummation of all of the transactions contemplated by this
Agreement.
ARTICLE X
MISCELLANEOUS PROVISIONS
10.1 BINDING AGREEMENT. This Agreement may not be transferred,
assigned, pledged or hypothecated all or in part by any party hereto
without the prior written consent of all the other parties hereto.
This Agreement shall be binding upon and shall inure to the benefit of
the parties hereto and their respective assigns and successors in
interest. No other person shall acquire or have any right under or by
virtue of this Agreement.
10.2 GOVERNING LAW. This Agreement, the rights and obligations of the
parties, and any other claims or disputes relating in anyway thereto
will be governed by and construed in accordance with the laws of the
State of Florida.
10.3 COUNTERPARTS, HEADINGS, ETC. This Agreement may be executed
simultaneously in any number of counterparts, each of which shall be
deemed an original, but all of which shall constitute one and the same
instrument. The headings herein are for convenience of reference only
and shall not be deemed a part of this Agreement.
10.4 NOTICES. Any notice or other communication required or permitted
hereunder shall be deemed validly given, made or served if in writing
and if delivered in person or sent by facsimile transmission or
registered or certified mail to the intended recipient at the
following address or to such other address or number as shall be
furnished in writing by any such party to the other:
If to the Seller: Calixto Chaves
Inversiones La Ribera, S.A.
400 meters west of
National Panasonic Plant,
San Rafael Alajuela
<PAGE>
Page 17 of 17 Pages
If to the Buyer: Calixto Chaves
95 Merrick Way,
Suite 507,
Coral Gables,
Florida, 33134
10.5 AMENDMENT; SEVERABILITY. This Agreement may be amended only by an
agreement in writing signed by the parties hereto. In case any
provision of this Agreement shall be held invalid, illegal or
unenforceable by any court, the validity, legality and enforceability
of the remaining provisions will not be affected or impaired thereby.
10.6 ARBITRATION. Any dispute arising in connection with this
Agreement shall be exclusively settled by binding arbitration in the
Spanish language in Miami, Florida, in accordance with the Rules of
Arbitration and Conciliation of the International Chamber of Commerce.
Notwithstanding any provision in these rules, the arbitration panel at
any such arbitration proceeding shall consist of three arbitrators.
One arbitrator will be designated by Buyer, another arbitrator will be
designated by Seller and the third arbitrator will be a person
mutually agreed upon by Buyer and Seller. The arbitration panel shall
render its decision in writing, and such written decision and
conclusions with respect to the disputes so settled shall be final and
binding on the parties to the arbitration proceeding and confirmation
and enforcement of the awards so on the parties to the arbitration
proceeding and confirmation and enforcement of the awards so rendered
may be obtained and entered in any court having jurisdiction thereof.
Each of Buyer and Seller hereby irrevocably submits to the
jurisdiction of any such court for purposes of enforcement of the
arbitration panel's decision.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed as of the day and year first above written.
SELLER:
BY: /s/ CALIXTO CHAVES
--------------------------------------
CALIXTO CHAVES
PRESIDENT
INVERSIONES LA RIBERA, S.A.
BY: /s/ CALIXTO CHAVES
--------------------------------------
CALIXTO CHAVES
PRESIDENT
COSTA RICA INTERNATIONAL, INC.
