Stock Purchase Agreement - Charles Wainer, Net Quest Corp. and CWTEL Inc.
STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT is made as of the 1st day of March, 2000
by and between Charles Wainer (the ("Seller"), Net Quest Corp., a Florida
Corporation (the "Purchaser") and CWTEL, Inc. (the "Company"), a Florida
corporation.
WHEREAS, Seller owns all of the issued and outstanding capital stock
(the "Stock") of the Company with authorized capital of 1,000 shares of Common
Stock, $1.00 par value, of which 1,000 shares are presently issued and
outstanding.
WHEREAS, Seller wishes to sell to the Purchaser 100% of the Stock of
the Company and the Purchaser is desirous of acquiring the Stock on the terms
and conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the mutual promises contained
herein, the sufficiency of which is hereby acknowledged, the parties hereby
agree as follows:
1. TRANSFER OF COMMON STOCK. Subject to and upon the terms and
conditions of this Agreement, Seller hereby sells and transfers to Purchaser and
Purchaser hereby purchases from Seller, for the aggregate purchase price of
$1,200,000, (the "Purchase Price") 1,000 shares of the common stock of the
Company.
2. CONSIDERATION FOR TRANSFER. On the Closing Date, as later defined
herein, subject to the terms and conditions of this Agreement, the Seller shall
deliver to Purchaser, duly endorsed certificates for all of the outstanding
shares (1,000) of the Company's common stock, $1.00 par value (the "Shares"). As
consideration for the transfer and delivery of 100% of the issued and
outstanding shares of common stock of the Company, Purchaser will pay the
Purchase Price as follows:
i. 200,000 to be paid at closing.
ii. $300,000 to be paid in three equal payments at 90 days,
180 days, and 270 days from closing. This payment shall be guaranteed
by the issuance, at closing, of 300,000 shares of preferred stock, with
a face value of $10.00 per share. As payment is made to Seller, Seller
shall return to Purchaser that number of Preferred Shares equal to the
payment made,
iii. At closing, the issuance of the greater of:
(a) 300,000 shares of the Company's restricted; or
(b) shares of restricted common stock equal to
$700,000, valued at the average bid and asked price of the
Purchasers common stock for the three trading days prior to
the date of Closing.
3. CLOSING DATE. The Closing Date shall be on or before April 1, 2000.
The Closing shall be held at Purchaser's corporate offices at 2:00 p.m.
4. ASSETS. The Seller and the Company hereby represent and warrant that
except as set forth on Exhibit "B", the Company has clear and unencumbered title
to the assets set forth on Exhibit "A" hereto and incorporated herein (the
"Assets") and that the Assets will, at closing, remain the property of the
Company.
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5. LIABILITIES Purchaser shall assume only the liabilities set forth on
Exhibit "C" hereto or described herein and shall indemnify the Seller for any
personal surety on such liabilities. Any undisclosed liabilities or liabilities
not assumed related directly or indirectly to the Company shall remain the sole
responsibility of the Seller.
6. REPRESENTATIONS AND WARRANTIES BY PURCHASER. Purchaser represents
and warrants as follows:
(a) The authorized capital stock of Purchaser consists of
50,000,000 shares of common stock, no par value, and 5,000,000 shares
of non-voting Preferred stock no par value. All of Purchasers' issued
and outstanding shares of common stock are fully paid and
non-assessable and not issued in violation of the preemptive rights of
any person or entity;
(b) Purchaser shall assume only the liabilities set forth on
Exhibit "C" hereto or described herein. Any undisclosed liabilities
related directly or indirectly to the Company shall remain the sole
responsibility of the Seller.
(c) Purchaser is a corporation duly organized, validly
existing, and in good standing under the laws of the State of Florida
with all requisite power to carry on its business as it is now being,
and as it is presently proposed to be, conducted;
(d) The execution and delivery of this Agreement, compliance
with and fulfillment of the terms of this Agreement, do not and, at the
Closing, will not (i) constitute a default or result in the creation of
any lien, security interest, charge or encumbrance upon Purchaser other
than liabilities which are herein contemplated, nor does it give any
third party the right to accelerate any obligation against the
Purchaser, or (ii) conflict with any other material agreement to which
the Purchaser is a party or by which it is bound;
(e) No insolvency proceedings of any character, including
without limitation, bankruptcy, receivership, composition or
arrangement with creditors, voluntarily or involuntarily, designating
Purchaser as the bankrupt or the insolvent, are pending, or to the
knowledge of the Purchaser threatened, and the Purchaser has not made
an assignment for the benefit of creditors, nor has the Purchaser taken
any action with a view to, or which would constitute the basis for, the
institution of such insolvency proceedings;
(f) All corporate action required to be taken by the Purchaser
to enter into this Agreement has been taken; and
(g) There has been no material adverse changes in the business
or financial condition of the Purchaser or otherwise relating to the
Purchaser, except as previously disclosed to the Company.
(h) Mr. Camilo Pereira is the duly elected and serving Chief
Executive Officer of the Purchaser and has been duly empowered to
execute this Agreement, and any amendments or modifications hereto, by
and on behalf of the Purchaser.
(i) The Company will be operated as a wholly owned subsidiary
of the Purchaser.
(j) In order to induce Shareholder and the Company to issue
the Common Shares, recognizing that the Company will be relying on the
information and on the representations set forth below, the Purchaser
hereby represents, warrants, and agrees as follows:
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(i) The Purchaser has determined that the purchase of
the common shares of the Shareholders (the "Shares") is a
suitable investment for the Purchaser and that the Purchaser
is able to bear economic risks including a total loss of an
investment in the Shares.
(ii) The Purchaser is purchasing the Shares for its
own account for investment, and not with a view to or for sale
in connection with the distribution of the Shares nor with any
present intention of selling or otherwise disposing of all or
any part of the Shares. The Purchaser hereby acknowledges its
understanding that the Shares are not being registered under
the Securities Act of 1933 (the "Act"), or any state
securities laws on the ground that the issuance and sale of
the Shares to the Purchaser is exempt under the Act and
relevant state securities laws as not involving a public
offering. The Purchaser agrees not to sell the Shares unless
they are subsequently registered or an exemption from such
registration is available. The Purchaser authorizes the
Company to place a legend denoting the restrictions on the
certificates to be issued.
The Purchaser further acknowledges its understanding
that the Company's reliance on such exemptions are, in part,
based upon the foregoing representations, warranties, and
agreements by it and that the statutory basis for such
exemptions would not be present, if notwithstanding such
representations, warranties and agreements, the Purchaser were
acquiring the Shares for resale on the occurrence or
non-occurrence of some pre-determined event. In order to
induce the Shareholders and the Company to issue and sell the
Shares to the Purchaser, it is agreed that the Company will
have no obligation to recognize the ownership, beneficial or
otherwise, of such shares by anyone but the Purchaser, except
as set forth herein.
(iii) The Purchaser acknowledges and is aware that,
except as set forth herein, it will not transfer or assign the
Shares, or any interest therein; the assignment and
transferability of the Shares will be governed by this
Agreement and all applicable laws.
(iv) The Purchaser has acknowledged and is aware
that, except for the three day rescission rights provided
under Florida law or as provided in this Agreement, they are
not entitled to cancel, terminate or revoke this subscription,
and any agreements of the Purchaser in connection herewith
shall survive the termination of this Agreement.
(v) The Purchaser has have had the opportunity to ask
questions of, and receive answers from management of the
Company regarding the terms and conditions of this Agreement,
and the transactions contemplated thereby, as well as the
affairs of the Company and related matters.
The Purchaser may have access to whatever additional
information concerning the Company, its financial condition,
its business, its prospects, its management, its
capitalization, and other similar matters that it or its
purchaser representative, if any, desires, provided that the
Company can acquire such information without unreasonable
effort or expense. In addition, as required by Section
517.061(11)(a)(3), Florida Statutes, and Rule 3E-500.05(a)
there under, the Purchaser and its purchaser representative
may have, at the offices of Purchaser, at any reasonable hour,
after reasonable prior notice, access to the materials set
forth in the Rule which Purchaser can obtain without
unreasonable effort or expense.
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(vi) The Purchaser has had the opportunity to obtain
additional information necessary to verify the accuracy of the
information referred to in subparagraph (v) hereof.
The Purchaser hereby agree to indemnify and hold harmless the Company
and the Shareholders, its respective officers, directors, shareholders,
employees, agents and attorneys against any and all losses, claims, demands,
liabilities and expenses (including reasonable attorney fees, expert witness and
accounting fees and other disbursements and costs or other expenses) incurred by
each such person in connection with defending or investigating any such claims
or liabilities, whether or not resulting in any liability to such person) to
which any such indemnified party may become subject under the Act, under any
other statute, at common law or otherwise, insofar as such losses, claims,
demands, liabilities and expenses (a) arise out of or are based upon any untrue
statement or alleged untrue statement of a material fact made by Purchaser and
contained in this Agreement, or (b) arise out of or are based upon any breach of
any representation, warranty or agreement by Purchaser contained herein.
The representations, warranties, and agreements contained herein shall
survive the delivery of and payment for, the Shares.
FLORIDA LAW PROVIDES THAT WHEN SALES ARE MADE TO FIVE OR MORE PERSONS IN
FLORIDA, ANY SALE MADE IN FLORIDA IS VOIDABLE BY THE PURCHASER WITHIN THREE DAYS
AFTER THE FIRST TENDER OF CONSIDERATION IS MADE BY SUCH PURCHASER TO THE
COMPANY, AN AGENT OF THE COMPANY OR AN ESCROW AGENT OR WITHIN THREE DAYS AFTER
THE AVAILABILITY OF THAT PRIVILEGE IS COMMUNICATED TO SUCH PURCHASER, WHICHEVER
OCCURS LATER. PAYMENTS FOR TERMINATED SUBSCRIPTIONS VOIDED BY PURCHASERS AS
PROVIDED FOR IN THIS PARAGRAPH WILL BE PROMPTLY REFUNDED WITHOUT INTEREST.
7. REPRESENTATIONS AND WARRANTIES BY THE COMPANY AND THE SELLER. The
Company and the Seller hereby represent and warrant as follows:
(a) The Seller has valid and marketable title to 1000 shares
of the Company's common stock, $1.00 par value, free and clear of any
and all security interests, pledges, claims, liens, encumbrances or
other rights of any other person or entity;
(b) The Seller has the absolute and unrestricted right, power,
authority, and capacity to transfer such shares;
(c) The Company has clear and unencumbered title to the
Assets, except as set forth on Exhibit "B".
(d) Neither the Seller nor the Company is a party to any
written or oral agreement which grants an option or right of first
refusal or other arrangements to acquire any of the Company's Assets
and that the Seller and the Company confirm by the execution of this
Agreement that there are no contingent liabilities, factual or
otherwise, threatened or pending litigation, contractually assumed
obligations or unasserted possible claims which might result in a
material adverse change in the future financial condition or operations
of the Company. Any undisclosed liability shall remain the sole
responsibility of the Seller.
(e) No judgment is presently filed of record against the
Company or any officer or director of the Company, and there is no
litigation, arbitration, investigation, inquiry or other proceedings by
or before any federal, state, county or local governmental agency or
authority, or by any person or entity pending or to the knowledge of
the Company or the Seller, threatened against the Company or the
Seller, and neither the Company nor the Seller have knowledge of any
material basis for any such litigation, proceeding, arbitration, claim,
investigation, inquiry or proceeding.
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(f) The Company is a corporation duly organized and validly
existing and in good standing under the laws of the State of Florida.
It has all requisite corporate power and authority to carry on its
business as now being conducted, to enter into this Agreement and to
carry out and perform the terms and provisions of this Agreement.
(g) Mr. Charles Wainer is the duly elected and serving
President of the Company and has been duly empowered to execute this
Agreement, and any amendments and notifications hereby, by and on
behalf of the Company.
(h) The execution, delivery, and consummation of this
Agreement have been duly and validly authorized by the Board of
Directors and, if necessary, the Shareholders of the Company in a
manner provided by and as required by law.
(i) To the best of the Seller' and the Company's knowledge,
the representations and warranties contained in this paragraph are true
and correct.
(j) In order to induce Purchaser to issue the Common Shares,
recognizing that Purchaser will be relying on the information and on
the representations set forth below, the Shareholders hereby
represents, warrants, and agrees as follows:
(i) The Shareholder has determined that the purchase
of the Common Shares of Purchaser (the "Shares") is a suitable
investment for the Shareholder and that the Shareholder is
able to bear economic risks including a total loss of an
investment in the Shares.
(ii) The Shareholder is purchasing the Shares for his
own account for investment, and not with a view to or for sale
in connection with the distribution of the Shares, nor with
any present intention of selling or otherwise disposing of all
or any part of the Shares. The Shareholder hereby acknowledges
his understanding that the Shares are not being registered
under the Securities Act of 1933 (the "Act"), or any state
securities laws on the ground that the issuance and sale of
the Shares to the Shareholder is exempt under the Act and
relevant state securities laws as not involving a public
offering. The Shareholder agrees not to sell the Shares unless
they are subsequently registered or an exemption from such
registration is available. The Shareholder authorizes
Purchaser to place a legend denoting the restrictions on the
certificates to be issued.
The Shareholder further acknowledges his
understanding that Purchaser's reliance on such exemptions
are, in part, based upon the foregoing representations,
warranties, and agreements by it and that the statutory basis
for such exemptions would not be present, if notwithstanding
such representations, warranties and agreements, the
Shareholder were acquiring the Shares for resale on the
occurrence or non-occurrence of some pre-determined event. In
order to induce Purchaser to issue and sell the Shares to the
Shareholder, it is agreed that Purchaser will have no
obligation to recognize the ownership, beneficial or
otherwise, of such shares by anyone but the Shareholder,
except as set forth herein.
(iii) The Shareholder acknowledges and is aware that,
except as set forth herein, he will not transfer or assign the
Shares, or any interest therein; the assignment and
transferability of the Shares will be governed by this
Agreement and all applicable laws.
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(iv) The Shareholder has acknowledged and is aware
that, except for the three day rescission rights provided
under Florida law and as provided in this Agreement, he is not
entitled to cancel, terminate or revoke this subscription, and
any agreements of the Shareholder in connection herewith shall
survive the termination of this Agreement.
(v) The Shareholder has had the opportunity to ask
questions of, and receive answers from management of Purchaser
regarding the terms and conditions of this Agreement, and the
transactions contemplated thereby, as well as the affairs of
Purchaser and related matters.
The Shareholder may have access to whatever
additional information concerning the Purchaser, its financial
condition, its business, its prospects, its management, its
capitalization, and other similar matters that it or its
purchaser representative, if any, desires, provided that
Purchaser can acquire such information without unreasonable
effort or expense. In addition, as required by Section
517.061(11)(a)(3), Florida Statutes, and Rule 3E-500.05(a)
there under, the Shareholders and their purchaser
representative may have, at the offices of Purchaser, at any
reasonable hour, after reasonable prior notice, access to the
materials set forth in the Rule which Purchaser can obtain
without unreasonable effort or expense.
(vi) The Shareholder has had the opportunity to
obtain additional information necessary to verify the accuracy
of the information referred to in subparagraph (v) hereof.
The Shareholder and the Company hereby agrees to indemnify and hold
harmless Purchaser, its respective officers, directors, shareholders, employees,
agents and attorneys against any and all losses, claims, demands, liabilities
and expenses (including reasonable attorney fees, expert witness and accounting
fees and other disbursements and costs or other expenses) incurred by each such
person in connection with defending or investigating any such claims or
liabilities, whether or not resulting in any liability to such person) to which
any such indemnified party may become subject under the Act, under any other
statute, at common law or otherwise, insofar as such losses, claims, demands,
liabilities and expenses (a) arise out of or are based upon any untrue statement
or alleged untrue statement of a material fact by the Shareholder or the Company
contained in this Agreement, or (b) arise out of or are based upon any breach of
any representation, warranty or agreement by the Shareholder or the Company
contained herein.
The representations, warranties, and agreements contained herein shall
survive the delivery of and payment for, the Shares.
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FLORIDA LAW PROVIDES THAT WHEN SALES ARE MADE TO FIVE OR MORE PERSONS IN
FLORIDA, ANY SALE MADE IN FLORIDA IS VOIDABLE BY THE PURCHASER WITHIN THREE DAYS
AFTER THE FIRST TENDER OF CONSIDERATION IS MADE BY SUCH PURCHASER TO QUEST NET,
AN AGENT OF QUEST NET OR AN ESCROW AGENT OR WITHIN THREE DAYS AFTER THE
AVAILABILITY OF THAT PRIVILEGE IS COMMUNICATED TO SUCH PURCHASER, WHICHEVER
OCCURS LATER. PAYMENTS FOR TERMINATED SUBSCRIPTIONS VOIDED BY PURCHASERS AS
PROVIDED FOR IN THIS PARAGRAPH WILL BE PROMPTLY REFUNDED WITHOUT INTEREST.
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8. INVESTMENT REPRESENTATION.The Purchaser and the Seller hereby
acknowledge that the Shares are not being registered under the Securities Act of
1933, as amended (the "Securities Act"), or under any state securities statute.
The Shares are being acquired by the Purchaser and Seller, respectively for
their own account, for investment purposes only, and not with a view to any
distribution thereof. The Purchaser and Seller agree that no transfer or other
disposition of the Shares or any interest therein will be made in violation of
the Securities Act or any state securities statute.
9. CONTINGENCIES. This Agreement shall be contingent upon the
following:
(a) The officers and directors of the Company will resign and
be replaced by officers and directors appointed by Purchaser.
(b) The Seller will enter into a five-year employment
agreement with Quest Net Corp. in the form attached hereto as Exhibit
D.
10. LEGAL OPINION. At Closing, the Purchaser shall provide the Seller
with a legal opinion as to the following:
(i) The Purchaser is duly incorporated and validly
existing in the jurisdiction of its incorporation. The
Purchaser and/or its subsidiaries are duly qualified to do
business as a foreign corporation and are in good standing in
all jurisdictions where the Purchaser and/or its subsidiaries
owns or leases properties, maintains employees or conducts
business, except for jurisdictions in which the failure to so
qualify would not have a material adverse effect on the
Purchaser, and has all requisite corporate power and authority
to own its properties and conducts its business.
(ii) There is no action, proceeding, or investigation
pending, or to such counsel's knowledge, threatened against
the Purchaser, which might result, either individually or in
the aggregate, in any material adverse change in the business
or financial condition of the Purchaser.
(iii) To counsel's knowledge, the Purchaser is not a
party to or subject to the provisions of any order, writ,
injunction, judgment or decree of any court or government
agency or instrumentality.
(iv) To counsel's knowledge, there is no action,
suit, proceeding, or investigation by the Purchaser currently
pending.
(v) The Common Stock, which shall be issued at the
closing, will be duly authorized and validly issued under the
laws of the Purchaser's State of Incorporation.
(vi) The Stock Purchase Agreement (including all
Exhibits annexed thereto), the issuance of the Common Stock
have been duly approved by all required corporate action and
that all such securities, upon delivery, shall be validly
issued and outstanding, fully paid and nonassessable.
(vii) The issuance of the Common Stock will not
violate the applicable listing agreement between the Purchaser
and any securities exchange or market on which the Purchaser's
securities are listed.
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(viii) Assuming the accuracy of the representation
and warranties of the Purchaser set forth in the Stock
Purchase Agreement, the offer, issuance, and sale of the
Common Stock are exempt from the registration requirements of
the Securities Act.
(ix) As of the Closing Date the authorized capital
stock of the Purchaser consists of 50,000,000 shares of Common
Stock, no par value per share, of which 2,700,000 are
outstanding, 5,000,000 shares of non-voting Preferred Stock,
no par value, of which no shares been designated or issued.
All issued and outstanding shares of Common Stock have been
duly authorized and validly issued and are fully paid and
nonassessable.
(x) The Purchaser has the requisite corporate power
and authority to enter into the Stock Purchase Agreements and
to sell and deliver the Common Stock as described in the Stock
Purchase Agreement; the Stock Purchase Agreement and all
Exhibits annexed thereto have been duly and validly authorized
by all necessary corporate action by the Purchaser and to our
knowledge, no approval of any governmental or other body is
required for the execution and delivery of each of the Stock
Purchase Agreement by the Purchaser or the consummation of the
transactions contemplated thereby; the Stock Purchase
Agreement and all Exhibits annexed thereto have been duly and
validly executed and delivered by and on behalf of the
Purchaser, and is a valid and binding agreement of the
Purchaser, enforceable in accordance with its terms, except as
enforceability may be limited by general equitable principles,
bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium or other laws affecting creditors rights generally,
and except as to compliance with federal, state and foreign
securities laws, as to which no opinion is expressed.
(xi) To the best of Counsels knowledge, after due
inquiry, the execution, delivery and performance of the Stock
Purchase Agreement by the Purchaser and the performance of its
obligations there under do not and will not constitute a
breach or violation of any of the terms and provisions of, or
constitute a default under or conflict with or violate any
provision of (i) the Purchaser's Certificate of Incorporation
or By-Laws, (ii) any indenture, mortgage, deed of trust,
agreement or other instrument to which the Purchaser is a
party or by which it or any of its property is bound, (iii)
any applicable statute or regulation, (iv) or any judgment,
decree or other of any court or governmental body having
jurisdiction over the Purchaser or any of its property.
At Closing, the Seller and the Company shall provide the Purchaser with
a legal opinion as to the following:
(i) The Company is duly incorporated and validly
existing in the jurisdiction of its incorporation. The Company
and/or its subsidiaries are duly qualified to do business as a
foreign corporation and are in good standing in all
jurisdictions where the Company and/or its subsidiaries owns
or leases properties, maintains employees or conducts
business, except for jurisdictions in which the failure to so
qualify would not have a material adverse effect on the
Company, and has all requisite corporate power and authority
to own its properties and conducts its business.
(ii) There is no action, proceeding or investigation
pending, or to such counsel's knowledge, threatened against
the Seller or the Company which might result, either
individually or in the aggregate, in any material adverse
change in the business or financial condition of the Company
or have a material adverse effect on the shares of the
Company's common stock to be transferred hereunder or the
transferability of the Shares.
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(iii) To counsel's knowledge, the Seller and the
Company are not a party to or subject to the provisions of any
order, writ, injunction, judgment or decree of any court or
government agency or instrumentality.
(iv) To counsel's knowledge, there is no action,
suit, proceeding, or investigation with regard to the Seller
or the Company currently pending.
(v) The Shares, which shall be transferred at the
closing, have been duly authorized, and validly issued under
the laws of the Company's State of Incorporation.
(vi) The Stock Purchase Agreement (including all
Exhibits annexed thereto), the transfer of the Shares have
been duly approved by all required corporate action and that
all such securities, upon delivery, shall be validly issued
and outstanding, fully paid and nonassessable.
(vii) Assuming the accuracy of the representation and
warranties of the Seller and the Company set forth in the
Stock Purchase Agreement, transfer of the Shares is exempt
from the registration requirements of the Securities Act.
(ix) As of the Closing Date, the authorized capital
stock of the Company consists of 1,000 shares of Common Stock,
$1.00 par value per share, of which 1,000 shares are
outstanding. There are no options, warrants, or other
securities of the Company designated, issued, or outstanding.
All issued and outstanding shares of the Company have been
duly authorized and validly issued and are fully paid and
nonassessable.
(x) The Seller and the Company have the requisite
corporate power and authority to enter into the Stock Purchase
Agreements and the Seller have the power and authority to sell
and deliver the Shares as described in the Stock Purchase
Agreement; the Stock Purchase Agreement and all Exhibits
annexed thereto have been duly and validly authorized by all
necessary corporate action by the Company and to our
knowledge, no approval of any governmental or other body is
required for the execution and delivery of the Stock Purchase
Agreement by the Company or the consummation of the
transactions contemplated thereby; the Stock Purchase
Agreement and all Exhibits annexed thereto have been duly and
validly executed and delivered by and on behalf of the Seller
and the Company, and is a valid and binding agreement of the
Seller and the Company, enforceable in accordance with its
terms, except as enforceability may be limited by general
equitable principles, bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium or other laws affecting
creditors rights generally, and except as to compliance with
federal, state and foreign securities laws, as to which no
opinion is expressed.
(xi) To the best of Counsel's knowledge after due
inquiry, the execution, delivery and performance of the Stock
Purchase Agreement by the Seller and the Company and the
performance of their obligations there under do not and will
not constitute a breach or violation of any of the terms and
provisions of, or constitute a default under or conflict with
or violate any provision of (i) the Company's Certificate of
Incorporation or By-Laws, (ii) any indenture, mortgage, deed
of trust, agreement or other instrument to which the Seller or
the Company is a party or by which the Seller or the Company
or any of their property is bound, (iii) any applicable
statute or regulation, (iv) or any judgment, decree or other
of any court or governmental body having jurisdiction over the
Seller or the Company or any of their property.
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11. SURVIVAL OF WARRANTIES. The representations and warranties
contained herein shall be true and correct as of the date of this Agreement and
as of the Date of Closing and shall survive Closing.
12. BOOKS AND RECORDS. Seller have delivered or will deliver within
five (5) business days of the Closing to the Purchaser all of the corporate
documents, stock certificates agreements and leases maintained or required to be
maintained by the Company.
13. INDEMNIFICATION. Except as otherwise set forth with respect to the
liabilities assumed by Purchaser as set forth on Exhibit C, each party hereby
irrevocably agrees to indemnify and hold harmless the other party from any and
all liabilities and damages (including legal or other expenses incidental
thereto), contingent, current or otherwise to which they or any one of them may
become subject as a direct, indirect or incidental consequence or any action by
the indemnifying party or as a consequence of the failure of the indemnifying
party to act, whether pursuant to requirements of the Agreement or otherwise
Seller hereby forever agrees to indemnify and defend Purchaser, it officers,
directors and agents (collectively referred to herein as the "Purchasers") from
and against and hold Purchasers harmless from any and all liabilities in respect
of suits, proceedings, arbitrations, demands, judgments, damages, expenses and
costs (including, without limitation, reasonable counsel fees and costs and
expenses incurred in the investigation, defense or settlement of any claims
covered by this indemnity) (collectively, the "Claims") arising out of or due to
(i) any activity done or engaged in by the Seller, the Company or any officer,
director, shareholder, employee or agent of the Company on or prior to the
Closing Date; (ii) any Claim arising out of or in connection with the operation
of the Company on or prior to the Closing Date; (iii), the conduct of the
business of the Company on or prior to the Closing Date (iv) any Claim arising
out or in connection with the premises on which the Company is located,
including but not limited to personal injuries and environmental problems which
occurred on or prior to the Closing Date; (v) non-payment of Federal, state or
local taxes or fees on or prior to the Closing Date; (vi) contract disputes
originating on or prior to the Closing Date; (vii) non-compliance with
applicable Federal, state or local laws rules or regulation originating on or
prior to the Closing Date; (viii) nonpayment of obligations and breach of
contract originating on or prior to the Closing Date; or (ix) any obligation or
act that Seller, the Company or any officer, director, shareholder or agent of
the Company was obligated to perform on or prior to the Closing Date and did not
perform or performed in a manner that was negligent or substandard.
Notwithstanding any other provision of this Agreement, Purchaser shall not be
entitled to Indemnification unless within 15 days after the later of institution
of or learning of any such Claim, Purchaser shall have advised Seller in
writing, of the Claim.
14. FURTHER ASSURANCES. The parties agree to execute and deliver from
time to time at the request of any of the other parties to this Agreement and
without further consideration, such additional documents and to take such other
action necessary to consummate the transactions contemplated herein.
15. NOTICES. All notices, offers, acceptance and any other acts under
this Agreement (except payment) shall be in writing, and shall be sufficiently
given if delivered to the addressees in person, by Federal Express or similar
receipted delivery, by facsimile delivery or, if mailed, postage prepaid, by
certified mail, return receipt requested, as follows:
Shareholders Charles Wainer
C/o CWTEL. Inc
1250 East Hallandale Beach Blvd. #502
Hallandale, Florida 33000
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Purchaser Quest Net Corp.
2740 E Oakland Park Boulevard
Suite 206
Fort Lauderdale, Florida 33306
With Copy to: Rebecca J. Del Medico, Esq.
6281 Floridian Circle
Lake Worth, Florida 33463
The Company CWTEL. Inc
1250 East Hallandale Beach Blvd. #502
Hallandale, Florida 33000
or to such other address as either of them, by written notice to the other may
designate from time to time. The transmission confirmation receipt from the
sender's facsimile machine shall be conclusive evidence of successful facsimile
delivery. Time shall be counted to, or from, as the case may be, the delivery in
person or by mailing.
16. GOVERNING LAW. This Agreement and any dispute, disagreement, or
issue of construction or interpretation arising hereunder whether relating to
its execution, its validity, the obligations provided herein or performance
shall be brought in a court of competent jurisdiction in Broward County, Florida
and governed or interpreted according to the internal laws of the State of
Florida.
17.ENTIRE AGREEMENT. This Agreement constitutes the entire Agreement
between the parties and supersedes all prior oral or written agreements
regarding the same subject matter.
18. SEVERABILITY CLAUSE. In the event any parts of this Agreement are
found to be void, the remaining provisions of this Agreement shall nevertheless
be binding with the same effect as though the void parts were deleted.
19. SUCCESSORS. Subject to the provisions of this Agreement, this
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and assigns.
20. SECTION AND PARAGRAPH HEADINGS. The section and paragraph headings
in this Agreement are for reference purposes only and shall not affect the
meaning or interpretation of this Agreement.
21. AMENDMENT. This Agreement may be amended only by an instrument in
writing executed by all parties hereto.
22. EXHIBITS. The exhibits attached to this Agreement are hereby
incorporated herein.
23. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument. The execution of this
Agreement may be by actual or facsimile signature.
24. BINDING ON PARTIES. In the event that less than all the parties
hereto do not execute this Agreement, this Agreement, nevertheless shall be
binding upon those parties who executed it.
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IN WITNESS WHEREOF, the undersigned have executed this Agreement this
25th day of February 2000.
SIGNED SEALED & DELIVERED IN OUR PRESENCE.
Quest Net Corp. CWTEL, Inc.
By:/s/Camilo Pereira, Chief Executive Officer By: /s/Charles Wainer, President
/s/Charles Wainer, Shareholder