Exhibit 10.1.
STOCK SUBSCRIPTION AND PURCHASE AGREEMENT
-----------------------------------------
This Stock Subscription and Purchase Agreement ("Agreement") is
made this 12th day of January, 2001, by and between Centrack
International, Inc., a Delaware corporation ("Centrack"), with offices
at ▇▇▇▇▇▇▇ Enterprises, Inc., ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, and
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, having a residence at ▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇ and/or his assigns (as long as they are "accredited
investors" as defined in Rule 506 under Regulation D promulgated under
the Securities Act of 1933 (the "Act") (▇▇▇▇▇▇▇▇▇ and/or his assigns
being referred to herein as "the Buyer"). Centrack and the Buyer are
sometimes hereinafter referred to as the "Parties."
WHEREAS, the Buyer wishes to purchase shares of common stock of
Centrack (the "Stock Purchase") on the terms and conditions set forth
herein; and
WHEREAS, Centrack is willing to issue such shares to the Buyer on
the terms and conditions set forth herein;
NOW, THEREFORE, in consideration of the premises, covenants,
conditions, representations and warranties herein contained, and for
other good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, the Parties agree as follows:
1. Centrack agrees, subject to the terms and conditions
herein, and subject to any required regulatory approvals, to issue
51,780,178 shares of restricted common stock in Centrack (the
"Shares"), in the manner and at the times set forth herein, to the
Buyer, in exchange for payment by the Buyer and receipt by Centrack up
to One Hundred and Fifty Thousand Dollars ($150,000.00), but not less
than One Hundred Thousand Dollars ($100,000), as provided herein. The
Parties intend that such shares shall represent a Fifty-One Percent
(51%) of the outstanding capital stock of Centrack after giving effect
to the sale of such shares to the Buyer. The Shares shall be
evidenced by three stock certificates in the form of Exhibit A hereto.
2. The Buyer acknowledges and agrees that none of the Shares
have been registered with the United States Securities and Exchange
Commission ("SEC") in accordance with the Securities Act of 1933 (the
"Act") or any state securities agencies, and that all of the Shares
shall be restricted stock that may not be subsequently transferred by
the Buyer unless: (i) the Shares (or such portion of the Shares as are
sought to be transferred) are registered with the SEC and such state
securities agencies as may be required under the applicable securities
laws or (ii) the Buyer has delivered to Centrack a written opinion of
the Buyer's counsel, in form and substance satisfactory to Centrack
and Centrack's transfer agent, that the Shares (or such portion of the
Shares as are sought to be transferred) may be transferred by the
Buyer without such registration pursuant to an exemption from
registration provided in the securities laws. The certificate(s)
evidencing the Shares shall be marked with the following legend:
THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED (THE
"ACT"), OR UNDER ANY APPLICABLE STATE SECURITIES
LAWS, IN RELIANCE UPON EXEMPTIONS FROM
REGISTRATION PROVIDED BY SUCH LAWS, AND MAY NOT
BE SOLD OR TRANSFERRED IN THE ABSENCE OF AN
EFFECTIVE REGISTRATION UNDER THE ACT OR DELIVERY
Exhibit 10.1 - Pg. 1
TO THE COMPANY OF A WRITTEN OPINION, IN FORM AND
SUBSTANCE ACCEPTABLE TO THE COMPANY, OF COUNSEL
ACCEPTABLE TO THE COMPANY, THAT SUCH REGISTRATION
IS NOT REQUIRED.
3. The Closing for the stock purchase contemplated herein shall
take place at the offices of ▇▇▇▇▇▇ & ▇▇▇▇▇▇, located at ▇▇▇▇ ▇.
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, at 10:00 AM,
Eastern Daylight Saving Time on January 12, 2001, or at such other
place and time as the Parties agree in writing.
4. On or before January 19, 2001, the Buyer shall: (i) transfer
to the bank escrow account described hereinafter (the "Cash Escrow")
the sum of Fifty Thousand Dollars (50,000.00) via wire transfer to the
wire transfer address indicated on Appendix A hereto, or via cashiers
funds, in either case payable to ▇▇▇▇▇▇▇ Enterprises, Inc., a Florida
corporation, as the Cash Escrow Agent for Centrack, for the benefit of
Centrack, to be deposited into the Cash Escrow, under a Cash Escrow
Agreement in the form of Exhibit B hereto, providing for the mandatory
release to Centrack of monies from the Cash Escrow in accordance with
the Cash Escrow Agreement; and (ii) deliver into a Note and Stock
Escrow with an escrow agent designated by Centrack as the Note and
Stock Escrow Agent for Centrack, two promissory notes payable to
Centrack with the Buyer as maker, in the forms of Exhibit C-1 and C-2
hereto, each in the amount of Fifty Thousand Dollars ($50,000.00),
non-interest bearing, payable as follows: (x) Promissory Note No. 1
for $50,000.00, payable via wire transfer or cashiers funds into the
Cash Escrow for the benefit of Centrack, on or before March 12, 2001,
and (y) Promissory Note No. 2 for $50,000.00, payable via wire
transfer or cashiers funds into the Cash Escrow for the benefit of
Centrack, immediately upon the written demand of Centrack, made at any
time after March 12, 2001, but not later than June 12, 2001, which may
be a single demand for the entire $50,000.00 or sequential demands for
portions thereof, provided, however, that in the event that Centrack
consummates a "reverse merger" prior to the making of such demand or
demands, Promissory Note No. 2 shall be deemed cancelled as to the
entire principal if no demands for payment have been made, or that
portion of the principal that remains after any payments made in
response to demands from Centrack, as the case may be, with no further
requirement of payment on the part of the Buyer, except that the Buyer
shall be responsible to pay an amount of the principal of Promissory
Note No. 2 equal to all unpaid expenses of Centrack incurred after the
date of the Closing and before the date of completion of any reverse
merger involving Centrack, and provided further, that all such demands
shall be accompanied by documentation indicating the nature and amount
of expenses in the Cash Budget, incorporated herein as Exhibit E, to
be paid from the payment demanded. Both notes shall be secured by the
Shares under the terms of the Note and Stock Escrow, as described
above and in the following section. Each of the Notes shall be "non-
recourse" against the Buyer, with the only remedy for default in
payment thereof being retention of that portion of the Shares that has
not, as of the date of such default, been released to the Buyer from
the Note and Stock Escrow.
5. At the Closing, Centrack, upon receipt of appropriate
documentation indicating that both the initial $50,000.00 payment has
been delivered into the Cash Escrow and the two promissory notes
described above have been delivered into the Note and Stock Escrow,
shall issue in the name of the Buyer and deliver into the Note and
Stock Escrow, in accordance with a Stock Escrow Agreement in the form
of Exhibit D hereto, to be held in escrow by the Note and Stock Escrow
Agent, the Shares, evidenced by three stock certificates for
approximately equal number of the Shares. The Note and Stock Escrow
Agreement shall provide that the Shares shall be released to the Buyer
in three equal disbursements, the first to be made upon receipt of the
Initial Deposit of $50,000 into the Cash Escrow, as described in the
Cash Escrow Agreement, the second to be made upon payment by the Buyer
of the $50,000 principal of Promissory Note No. 1 into the Cash
Escrow, and the third to be made upon the sooner to occur of payment
of the entire principal balance of Promissory Note No. 2 or
cancellation of such note (or the remaining unpaid portion thereof, as
the case may be) in accordance with this Agreement, Promissory Note
Exhibit 10.1 - Pg. 2
No. 2 and the escrow agreements referred to herein as releases of
cash funds to Centrack are made from the Cash Escrow, provided that
all expenses incurred by Centrack after the Closing and before any
reverse merger have been paid from proceeds of the Buyer's payment of
Promissory Note No. 2 in response to demands therefor. Prior to such
releases, the Buyer shall have full voting rights to all of the
Shares, but may not hypothecate the Shares or any portion thereof.
6. The Cash Escrow Agreement shall provide that cash releases
from the Cash Escrow are required to be made, no a non-discretionary
basis, ▇▇▇▇▇▇▇ Enterprises, Inc., the Cash Escrow Agent for Centrack,
from time to time as obligations in the various categories set forth
in the Cash Budget set forth as Exhibit E hereto are incurred, it
being agreed that one or more of the Cash Budget categories may be
exceeded at any time, provided that the overall Cash Budget of
$150,000 is not to be exceeded without the agreement of the Parties.
The Cash Escrow Agent shall be required to expend all such cash
releases solely to pay the aforesaid obligations.
7. The Buyer represents and warrants that: (i) he and all of his
"assigns" hereunder each has a personal net worth in excess of
$1,000,000 or is otherwise an "accredited investor" as defined in Rule
506 of Regulation D under the Act; (ii) he is purchasing the Shares
for investment purposes only and not with a view toward resale; (iii)
he has examined and evaluated this investment and has the capacity to
understand and evaluate the nature of this investment and the risks
involved; (iv) he is making the investment described in this Agreement
based solely on his own investigation, evaluation and judgment, and
neither Centrack nor any other entity or individual has made any
representations to him in connection with this investment; and (v) his
being a party (and any of his assigns being a party) to this Agreement
and the performance thereof will not violate any applicable law or any
agreements to which he (or his assigns, as the case may be) is a
party.
8. Centrack warrants that: (i) it is a Delaware corporation in
good standing; (ii) its execution and performance of this Agreement
have been authorized by all required corporate action; (iii) the
Shares, when issued, shall be valid, fully paid and nonassessable,
subject only to the payments required by the Buyer hereunder; and (iv)
its execution and performance of this Agreement will not violate any
applicable law or any agreement to which it is a party.
9. This Agreement and its related agreements are subject to: (i)
approval by Centrack's Board of Directors and shareholders and any
necessary regulatory agency approvals.
10. The Parties agree to indemnify the accounting firm of
▇▇▇▇▇▇ & ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ individually, against any claims
brought against any of them pertaining to this Agreement, except to
the extent such claims are based upon the negligence, willful
misconduct or violation of law by ▇▇▇▇▇▇ & ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
individually.
11. General Provisions
------------------
(a) No amendment of any provision of this Agreement shall
be effective unless it is in writing and signed by both Parties. No
waiver of any provision of this Agreement, and no consent to any
departure by either Party therefrom, shall be effective unless it is
in writing and signed by the waiving Party, and then such waiver or
consent shall be effective only in the specific instance and for the
specific purpose for which given.
(b) Any provision of this Agreement which is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such prohibition or unenforceability
without invalidating the remaining portions hereof or thereof or
affecting the validity or enforceability of such provision in any
other jurisdiction.
Exhibit 10.1 - Pg. 3
(c) This Agreement shall be governed by and construed in
accordance with the law of the State of Florida, without giving effect
to the choice of law principles thereof.
(d) Any legal action or proceeding with respect to this
Agreement or any document related thereto may be brought in the courts
of the State of Florida or in the United States District Court for the
Southern District of Florida and, by execution and delivery of this
Agreement, the Buyer hereby accepts, generally and unconditionally,
the jurisdiction of the aforesaid courts. The Buyer hereby irrevocably
waives any objection, including, without limitation, any objection to
the laying of venue or based on the grounds of forum non conveniens,
which he may now or hereafter have to the commencement of any such
action or proceeding in such respective jurisdictions and consents to
the granting of such legal or equitable relief as is deemed
appropriate by the court.
(e) The Buyer irrevocably consents to the service of
process of any of the aforesaid courts in any such action or
proceeding by the mailing of copies thereof by registered or certified
mail, postage prepaid, to the Buyer at its address provided herein,
such service to become effective thirty (30) days after such mailing.
(f) Nothing contained herein shall affect the right of
Centrack to serve process in any other manner permitted by law or
commence legal proceedings or otherwise proceed against the Buyer or
any of the Buyer's property in any other jurisdiction.
The foregoing has been agreed by the Parties as of the date first
entered above.
Centrack International, Inc.
By:________/s/ ▇▇▇▇ ▇. Lofquist________
Name:_________John ▇. ▇▇▇▇▇▇▇▇ ________
Title: Chairman and President
----------------------
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
_______________________________________
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Exhibit 10.1 - Pg. 4
EXHIBIT A
WIRE TRANSFER ADDRESS
Exhibit 10.1 - Pg. 5
EXHIBIT B
CASH ESCROW AGREEMENT
Exhibit 10.1 - Pg. 6
CASH ESCROW AGREEMENT
This Cash Escrow Agreement ("Agreement") dated as of the ___
day of January, 2001 by and among Centrack International, Inc., a
Delaware corporation (the "Corporation"), ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, in his
individual capacity (the "Buyer"), and ▇▇▇▇▇▇▇ Enterprises, Inc. a
Florida corporation, as Cash Escrow Agent (the "Cash Escrow Agent").
WITNESSETH:
-----------
The Buyer and the Corporation have entered into that certain
Stock Subscription and Purchase Agreement dated of event date herewith,
the terms of which are incorporated herein by reference and made a part
hereof, which provides that Fifty Thousand Dollars ($50,000.00) will be
deposited in escrow upon the execution thereof. In fulfillment of the
provisions of the Stock Subscription and Purchase Agreement, the Buyer,
the Corporation and the Cash Escrow Agent are now entering into this
Agreement.
Accordingly, in consideration of the mutual promises
contained herein, the parties, intending to be legally bound hereby,
agree as follows:
1. Deliveries to the Cash Escrow Agent. The Buyer hereby
deposits with the Cash Escrow Agent, via cashiers funds or via wire
transfer, in accordance with the wire transfer instructions contained in
the Stock Subscription and Purchase Agreement, the sum of Fifty Thousand
Dollars ($50,000.00) (the "Initial Cash Escrow Deposit"). By execution
of this Agreement, the Cash Escrow Agent acknowledges receipt of the
Initial Cash Escrow Deposit. In addition to the foregoing, all payments
made by the Buyer under the two promissory notes executed by the Buyer
for $50,000.00 each, as required under the terms of the Stock
Subscription and Purchase Agreement and such notes, shall be delivered
to the Cash Escrow Agent via cashiers funds or via wire transfer in
accordance with the same wire transfer instructions. All payments made
under the promissory note designated in the Stock Subscription and
Purchase Agreement as Promissory Note No. 1 shall be referred to
collectively herein as the "Second Cash Escrow Deposit." All payments
made under the promissory note designated in the Stock Subscription and
Purchase Agreement as Promissory Note No. 2 shall be referred to
collectively herein as the "Third Cash Escrow Deposit."
2. Cash Escrow Account. The Cash Escrow Agent is hereby
directed to deposit each of the three Cash Escrow Deposits referred to
above into an account with a Federally-insured banking institution, such
account to have been established by the Buyer and the Cash Escrow Agent
(the "Cash Escrow Account") at the following named banking institution:
Northern Trust Bank of Florida; having the following account number:
▇▇▇▇▇▇▇ - ▇▇▇▇▇▇▇ Enterprises, Inc.; with ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, President of
▇▇▇▇▇▇▇ Enterprises, Inc. as signatory thereon.
3. Disbursement of Cash Escrow Account.
a. Disbursements to the Corporation. Cash releases
from the Cash Escrow shall be made on mandatory and non-discretionary
basis to the Corporation from time to time by the Cash Escrow Agent,
as obligations in the various categories set forth in the Cash Budget
incorporated into the Stock Subscription and Purchase Agreement as
Exhibit E thereto are incurred, or required to be paid by the
Corporation (including advance deposits and similar obligations).
Such releases shall be equal to the amount of such obligations and
shall be made in a timely fashion so that the Corporation can pay such
obligations on a current basis. One or more of the Cash Budget
categories may be exceeded by disbursements for obligations in such
categories at any time, provided that no disbursements in excess of
the overall Cash Budget in said Exhibit E shall be made without the
prior written agreement of the Buyer. No disbursements from the
Second Cash Escrow Deposit shall be made until the Initial Cash Escrow
Exhibit 10.1 - Pg. 7
Deposit has been fully disbursed. Similarly, no disbursements from
the Third Cash Escrow Deposit shall be made until the Second Cash
Escrow Deposit has been fully disbursed. The Corporation shall spend
all such disbursements on the obligations set forth in the Cash Budget
for which the disbursements were made. In the event that the
Corporation consummates a "reverse merger" prior to the disbursement
of all of the Third Cash Escrow Deposit, no further disbursements
shall be made to the Corporation from the Third Cash Escrow Deposit,
except as necessary to pay the expenses of the Corporation arising
after the date of this Cash Escrow Agreement and before the date of
completion of such reverse merger.
b. Disbursements to the Buyer. In no event shall any
portion of the Initial or Second Cash Escrow Deposits be disbursed or
otherwise returned to the Buyer. Any portion of the Third Cash Escrow
Deposit remaining after payment of all of the obligations referred to in
the last sentence of the foregoing subsection "a" shall be disbursed to
the Buyer upon completion of the reverse merger referred to in such
sentence.
4. Regarding the Cash Escrow Agent.
a. The Corporation and the Buyer, jointly and
severally, agree to hold the Cash Escrow Agent harmless and to indemnify
the Cash Escrow Agent against any loss, liability, expenses (including
attorney's fees and expenses), claim or demand arising out of or in
connection with the performance of its obligations in accordance with
the provisions of this Agreement, except for the negligence, willful
misconduct or failure of the Cash Escrow Agent to perform its
obligations. The foregoing indemnities in this paragraph shall survive
the resignation of the Cash Escrow Agent or the termination of this
Agreement.
b. The Cash Escrow Agent's duties are only such as
are specifically provided herein, and the Cash Escrow Agent shall incur
no liability whatsoever to the Corporation or the Buyer, except for its
negligence, willful misconduct or failure to perform its obligations
hereunder. The Cash Escrow Agent shall have no responsibility hereunder
other than to follow faithfully the instructions herein contained, and
the Cash Escrow Agent shall have no duty or obligation to determine
which party may at any time be entitled to the monies on deposit in the
Escrow Account. Except as set forth in this Paragraph 4.b, the Cash
Escrow Agent shall not be liable while acting in accordance with any
written instructions given to it hereunder and believed by it to have
been executed by the proper parties.
c. It is understood and agreed that should any
dispute arise with respect to the payment and/or ownership or right of
possession of any portion of the Cash Escrow Account, other than the
Initial and Second Cash Escrow Deposits, the Cash Escrow Agent is
authorized and directed to retain in its possession, without liability
to anyone, all or any part of the Third Cash Escrow Deposit only, until
such dispute shall have been settled either by mutual agreement by the
parties concerned or by the final order, decree or judgment of a court
or other tribunal of competent jurisdiction in the United States of
America and time for appeal has expired and no appeal has been
perfected, but the Cash Escrow Agent shall be under no duty whatsoever
to institute or defend any such proceedings. except in case of its
negligence, willful misconduct or its breaching this Agreement.
d. The Cash Escrow Agent may resign at any time by
giving written notice thereof to the other parties hereto, but such
resignation shall not become effective until a successor Cash Escrow
Agent shall have been appointed with the consent of all parties hereto
and shall have accepted such appointment in writing. If an instrument
of acceptance by a successor Cash Escrow Agent shall have not have been
delivered to the Cash Escrow Agent within thirty (30) days after the
giving of such notice of resignation, the resigning Cash Escrow Agent
may petition any court of competent jurisdiction for the appointment of
a successor Cash Escrow Agent.
Exhibit 10.1 - Pg. 8
5. Notices. All notices, demands, requests and other
communications required or permitted to be given under the provisions of
this Agreement shall be in writing and shall be deemed duly given on the
date mailed by certified United States delivered (by messenger or
overnight or express delivery service), addressed to the Corporation and
the Buyer as set forth in the Stock Subscription and Purchase Agreement
(the Corporation being referred to therein as the "Seller"). All
notices and demands, given to the Cash Escrow Agent under the provisions
of this Agreement shall be in writing and shall be addressed to ▇▇▇▇▇▇▇
Enterprises, Inc., ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇, President.
6. The Parties agree to indemnify the accounting firm of
▇▇▇▇▇▇ & ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ individually against any claims
brought against any of them pertaining to this Agreement, except to
the extent such claims are based upon the negligence, willful
misconduct or violation of law by ▇▇▇▇▇▇ & ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
individually.
7. General. This Agreement shall be construed in
accordance with the laws of the State of Florida, without giving effect
to the conflicts of laws rules thereof. Each of the Parties submits
unconditionally to the jurisdiction of the Federal Court for the
Southern District of Florida for resolution of any controversy
hereunder. This Agreement may be executed in several counterparts, each
of which shall constitute an original, and all collectively shall
constitute but one agreement.
IN WITNESS WHEREOF, the parties hereto have duly executed
this Agreement as of the date first above written.
ATTEST: ▇▇▇▇▇▇▇ ENTERPRISES, INC.
_______________________ By: ________________________
Name: ______________________
Title: _____________________
ATTEST: CENTRACK INTERNATIONAL, INC.
_______________________ By:__________________________
Name: _______________________
Title: ______________________
_____________________________
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Exhibit 10.1 - Pg. 9
EXHIBIT C-1
PROMISSORY NOTE NO. 1
Exhibit 10.1 - Pg. 10
NON-NEGOTIABLE, NON-RECOURSE PROMISSORY NOTE NO. 1
--------------------------------------------------
US$50,000.00 January 12, 2001
1. Parties.
1.1 ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, an Individual (the "Maker").
1.2 Centrack International, Inc. (the "Payee").
2. Maker's Promise to Pay.
For value received, Maker promises to pay to the order of
Payee, its successors or assigns FIFTY THOUSAND UNITED STATES DOLLARS
(US$50,000.00) (the "Principal").
3. Interest.
No Interest will be charged hereunder.
4. Payments.
4.1 The Principal hereunder shall be due and payable in
full on March 12, 2001.
4.2 All payments hereunder shall be made in lawful money
of the United States of America.
4.3 Maker will make all payments to the following address:
Centrack International, Inc.
c/▇ ▇▇▇▇▇▇▇ Enterprises, Inc.,
As Cash Escrow Agent for Centrack
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
or at such other address as directed in writing by the Payee.
4.4 Prepayment. This Note may be prepaid in whole or in
part at any time without penalty or premium.
6. Default.
6.1 If any payment of Principal, Interest or other sum due
Payee hereunder is not paid as and when due, and the Maker fails to
fully cure such failure to pay within five (5) calendar days of receipt
of the Payee's written notice of such failure and demand for payment,
this Note shall be in default, and no further notice shall be required
for Payee to obtain the remedies available to it for said default, both
hereunder.
6.2 Upon default in this Note, the Note and Stock Escrow
Agent (as defined in the Stock Subscription and Purchase Agreement of
even date herewith), without further legal action, shall cause such
Exhibit 10.1 - Pg. 11
number of the shares of common stock of the Payee as are then held in
the Note and Stock Escrow referred to in Section 4.6 hereof to be
returned to the Payee for cancellation, without further obligation to
the Buyer, and the Buyer shall have no rights in such Shares. Failure
to exercise this option shall not constitute a waiver of the right to
exercise the same at any other time. Payee shall have no recourse
against the Maker hereunder except as set forth in this section.
6.3 Any default by the Maker in the payment of
Promissory Note No. 2 between the Maker and the Payee, dated of even
date herewith, shall be deemed to constitute a default under this Note
as well; and in such event the Payee may pursue all of its remedies for
default under this Note.
7. Waivers.
Maker and any endorsers, sureties, guarantors, and all
others who are, or may become liable for the payment hereof severally:
(i) waive presentment for payment, demand, notice of demand, notice of
nonpayment or dishonor, protest and notice of protest of this Note, and
all other notices in connection with the delivery, acceptance,
performance, default, or enforcement of the payment of this Note.
8. Notices
All notices, requests, demands, waivers and other
communications required or permitted to be given under this Note shall
be in writing and shall be delivered in person or mailed, certified or
registered mail with postage prepaid, or sent by facsimile, as
follows:
If to the Payee: Centrack International, Inc.
____________________________
____________________________
____________________________
With a copy to: ____________________________
____________________________
____________________________
____________________________
If to the Maker: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
____________________________
____________________________
____________________________
With a copy to: [Attorney]
____________________________
____________________________
____________________________
or to such other Person or address as any party shall specify by
notice in writing to each of the other parties in accordance with this
clause. All such notices, requests, demands, waivers and
communications shall be deemed to have been received on the date when
given unless mailed, in which case on the third business day after the
mailing thereof.
Exhibit 10.1 - Pg. 12
9. Miscellaneous Provisions.
9.1 The captions of sections of this Note are for
convenience only, and shall not affect the construction or
interpretation of any of the terms and provisions set forth in this
Note. Whenever used in this Note, the singular number shall include
the plural, and the masculine shall include the feminine and the
neuter, and vice versa.
9.2 The remedies of Payee as provided herein shall be
cumulative and concurrent and may be pursued singly, successively, or
together at the sole discretion of the Payee and may be exercised as
often as deemed necessary by the Payee. No act of omission or
commission of Payee, including specifically any failure to exercise
any right, remedy or recourse shall be effective unless it is set
forth in a written document executed by an authorized representative
of the Payee with authority to thereby bind the Payee legally, and
then only to the extent specifically recited therein. A waiver or
release with reference to one event shall not be construed as
continuing, or as a bar to or as a waiver or release of any subsequent
right, remedy, or recourse as to any subsequent event.
(g) 9.3 This Note shall be construed, interpreted,
enforced and governed by and in accordance with the laws of the State
of Florida (excluding the principles thereof governing conflicts of
law), and federal law in the event federal law permits a higher rate of
interest than Florida law. Any legal action or proceeding with respect
to this Note or any document related thereto may be brought in the
courts of the State of Florida or in the United States District Court
for the Southern District of Florida and, by execution and delivery of
this Note, the Maker hereby accepts, generally and unconditionally,
the jurisdiction of the aforesaid courts. The Maker hereby irrevocably
waives any objection, including, without limitation, any objection to
the laying of venue or based on the grounds of forum non conveniens,
which he may now or hereafter have to the commencement of any such
action or proceeding in such respective jurisdictions, and consents to
the granting of such legal or equitable relief as is deemed
appropriate by the court. The Maker irrevocably consents to the
service of process of any of the aforesaid courts in any such action
or proceeding by the mailing of copies thereof by registered or
certified mail, postage prepaid, to the Maker at its address provided
herein, such service to become effective thirty (30) days after such
mailing. Nothing contained herein shall affect the right of the Payee
to serve process in any other manner permitted by law or commence
legal proceedings or otherwise proceed against the Maker or any of the
Maker's property in any other jurisdiction.
9.4 If any provision or portion of this Note is declared or
found by a court of competent jurisdiction to be unenforceable or null
and void, such provision or portion thereof shall be deemed stricken
and severed from this Note, and the remaining provisions and portions
thereof shall continue in full force and effect.
9.5 This Note may not be amended, extended, renewed or
modified, nor shall any waiver of any provision hereof be effective,
except by an instrument in writing executed by an authorized officer of
Payee. Any waiver of any provision hereof shall be effective only in
the specific instance and for the specific purpose for which given.
____________________________
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Exhibit 10.1 - Pg. 13
EXHIBIT C-2
PROMISSORY NOTE NO. 2
Exhibit 10.1 - Pg. 14
NON-NEGOTIABLE, NON-RECOURSE PROMISSORY NOTE NO. 2
--------------------------------------------------
US$50,000.00 January 12, 2001
1. Parties.
1.1 ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, an Individual (the "Maker").
1.2 Centrack International, Inc. (the "Payee").
2. Maker's Promise to Pay.
For value received, Maker promises to pay to the order of
Payee, its successors or assigns FIFTY THOUSAND UNITED STATES DOLLARS
(US$50,000.00) (the "Principal").
3. Interest.
No Interest will be charged under this Note.
4. Payments.
4.1 The Principal hereunder shall be due and payable in
full or in such amount(s) as the Cash Escrow Agent (as defined in the
Stock Subscription and Purchase Agreement of even date herewith) for
the Payee shall be required by the Cash Escrow Agreement to demand in
writing from time to time, after March 12, 2001 but not later than June
12, 2001, which may be a single demand for the entire $50,000.00 or
sequential demands for portions thereof, provided, however, that in the
event that Centrack consummates a "reverse merger" prior to the making
of such demand or demands, this Note shall be deemed cancelled as to
the entire principal (or remaining principal, as the case may be), with
no further requirement of payment on the part of the Buyer, except that
the Buyer shall be responsible to pay that portion of the Note that is
necessary in order for there to be sufficient proceeds of such payment
to pay all obligations incurred by Centrack between the date of the
Closing and the date of completion of the reverse merger, and provided
further, that all such demands shall be accompanied by documentation
indicating the nature and amount of the obligations to be paid
(including any advance payments that may be required), based on the
Cash Budget incorporated into the Stock Subscription and Purchase
Agreement.
4.2 All payments hereunder shall be made in lawful money
of the United States of America.
4.3 Maker will make all payments to the following address:
Centrack International, Inc.
C/▇ ▇▇▇▇▇▇▇ Enterprises, Inc., as Cash
Escrow Agent for Centrack International, Inc.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
or at such other address as directed in writing by the Payee.
4.5 Prepayment. This Note may be prepaid in whole or in
part at any time without penalty or premium.
Exhibit 10.1 - Pg. 15
5. Default.
5.1 If any payment of Principal, Interest or other sum
due Payee hereunder is not paid as and when due, and the Maker fails to
fully cure such failure to pay within five (5) calendar days of receipt
of the Payee's written notice of such failure and demand for payment,
this Note shall be in default, and no further notice shall be required
for Payee to obtain the remedies available to it for said default.
5.2 Upon default in this Note, the Stock and Note
Escrow Agent (as defined in the Stock Subscription and Purchase Agreement
of even date herewith), without further legal action, shall cause such
number of the shares of common stock of the Payee as are then held in
the Note and Stock Escrow referred to in Section 4.6 hereof to be
returned to the Payee for cancellation, without further obligation to
the Buyer, and the Buyer shall have no rights in such Shares. Failure
to exercise this option shall not constitute a waiver of the right to
exercise the same at any other time. Payee shall have no recourse
against the Maker hereunder except as set forth in this section.
5.3 Any default by the Maker in the payment of
Promissory Note No. 1 between the Maker and the Payee, dated of even
date herewith, shall be deemed to constitute a default under this Note
as well; and in such event the Payee may pursue all of its remedies for
default under this Note.
6. Waivers.
Maker and any endorsers, sureties, guarantors, and all
others who are, or may become liable for the payment hereof severally:
(i) waive presentment for payment, demand, notice of demand, notice of
nonpayment or dishonor, protest and notice of protest of this Note, and
all other notices in connection with the delivery, acceptance,
performance, default, or enforcement of the payment of this Note.
7. Notices
All notices, requests, demands, waivers and other
communications required or permitted to be given under this Note shall
be in writing and shall be delivered in person or mailed, certified or
registered mail with postage prepaid, as follows:
If to the Payee: Centrack International, Inc.
C/▇ ▇▇▇▇▇▇▇ Enterprises, Inc., as Cash Escrow
Agent for Centrack
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇, President
With a copy to: ___________________________
___________________________
___________________________
___________________________
If to the Maker: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
___________________________
___________________________
___________________________
With a copy to: [Attorney]
Exhibit 10.1 - Pg. 16
___________________________
___________________________
___________________________
or to such other Person or address as any party shall specify by
notice in writing to each of the other parties in accordance with this
clause. All such notices, requests, demands, waivers and
communications shall be deemed to have been received on the date when
given unless mailed, in which case on the third business day after the
mailing thereof.
8. Miscellaneous Provisions.
8.1 The captions of sections of this Note are for
convenience only, and shall not affect the construction or
interpretation of any of the terms and provisions set forth in this
Note. Whenever used in this Note, the singular number shall include
the plural, and the masculine shall include the feminine and the
neuter, and vice versa.
8.2 The remedies of Payee as provided herein shall be
cumulative and concurrent and may be pursued singly, successively, or
together at the sole discretion of the Payee and may be exercised as
often as deemed necessary by the Payee. No act of omission or
commission of Payee, including specifically any failure to exercise
any right, remedy or recourse shall be effective unless it is set
forth in a written document executed by an authorized representative
of the Payee with authority to thereby bind the Payee legally, and
then only to the extent specifically recited therein. A waiver or
release with reference to one event shall not be construed as
continuing, or as a bar to or as a waiver or release of any subsequent
right, remedy, or recourse as to any subsequent event.
(h) 8.3 This Note shall be construed, interpreted,
enforced and governed by and in accordance with the laws of the State
of Florida (excluding the principles thereof governing conflicts of
law), and federal law in the event federal law permits a higher rate of
interest than Florida law. Any legal action or proceeding with respect
to this Note or any document related thereto may be brought in the
courts of the State of Florida or in the United States District Court
for the Southern District of Florida and, by execution and delivery of
this Note, the Maker hereby accepts, generally and unconditionally,
the jurisdiction of the aforesaid courts. The Maker hereby irrevocably
waives any objection, including, without limitation, any objection to
the laying of venue or based on the grounds of forum non conveniens,
which he may now or hereafter have to the commencement of any such
action or proceeding in such respective jurisdictions, and consents to
the granting of such legal or equitable relief as is deemed
appropriate by the court. The Maker irrevocably consents to the
service of process of any of the aforesaid courts in any such action
or proceeding by the mailing of copies thereof by registered or
certified mail, postage prepaid, to the Maker at its address provided
herein, such service to become effective thirty (30) days after such
mailing. Nothing contained herein shall affect the right of the Payee
to serve process in any other manner permitted by law or commence
legal proceedings or otherwise proceed against the Maker or any of the
Maker's property in any other jurisdiction.
8.4 If any provision or portion of this Note is declared
or found by a court of competent jurisdiction to be unenforceable or null
and void, such provision or portion thereof shall be deemed stricken
and severed from this Note, and the remaining provisions and portions
thereof shall continue in full force and effect.
8.5 This Note may not be amended, extended, renewed or
modified, nor shall any waiver of any provision hereof be effective,
except by an instrument in writing executed by an authorized officer of
Exhibit 10.1 - Pg. 17
Payee. Any waiver of any provision hereof shall be effective only in
the specific instance and for the specific purpose for which given.
____________________________
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Exhibit 10.1 - Pg. 18
EXHIBIT D
NOTE AND STOCK ESCROW AGREEMENT
Exhibit 10.1 - Pg. 19
NOTE AND STOCK ESCROW AGREEMENT
-------------------------------
This Note and Stock Escrow Agreement ("Agreement") dated as
of January 12, 2001 by and among Centrack International, Inc., a
Delaware corporation (the "Corporation"), ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, in his
individual capacity (the "Buyer"), and the Corporation's designated (to
be named not later than the date hereof), as Note and Stock Escrow Agent
(the "Note and Stock Escrow Agent").
WITNESSETH:
-----------
The Buyer and the Corporation have entered into that certain
Stock Subscription and Stock Purchase Agreement dated as of
January 12, 2001 (the "Stock Subscription and Purchase Agreement"), the
terms of which are incorporated herein by reference and made a part
hereof, which terms provide, among other things, for the issuance by the
Corporation of 51,780,178 shares of restricted common stock in
Centrack International, Inc. (the "Shares") in three certificates for
approximately equal numbers of Shares, and the execution, delivery and
payment (subject to certain conditions) by the Buyer of two promissory
notes, each in the amount of $50,000.00. In fulfillment of the
provisions of the Stock Subscription and Purchase Agreement, the Buyer,
the Corporation and the Note and Stock Escrow Agent are now entering
into this Agreement.
Accordingly, in consideration of the mutual promises
contained herein, the parties, intending to be legally bound hereby,
agree as follows:
1. Deliveries to the Note and Stock Escrow Agent.
(a) The Buyer hereby deposits with the Note and Stock
Escrow Agent, an original of each of Promissory Note No. 1 and
Promissory Note No. 2, as described in, and required by, the Stock
Subscription and Purchase Agreement, both notes being duly executed by
the Buyer (the "Note Escrow Deposit"). By execution of this Agreement,
the Note and Stock Escrow Agent acknowledges receipt of the Note Escrow
Deposit.
(b) The Corporation hereby deposits with the Note and
Stock Escrow Agent the Shares, as represented by Certificates Nos.
____, ___, and ___, the Shares being issued to the Buyer or his
assigns named in writing delivered to the Corporation prior to the
Closing, as defined in the Stock Subscription and Purchase Agreement,
and bearing a restrictive legend in the form indicated in Section 2 of
the Stock Subscription and Purchase Agreement and on the face of each
certificate, indicating that such shares of stock have not been
registered with the United States Securities and Exchange Commission
or any other securities agency and may not be transferred by the Buyer
(or his assigns, as the case may be) without registration or
acceptable written opinion of the Buyer's counsel that an exemption
from such registration is available.
2. Note and Stock Escrow. The Note and Stock Escrow Agent
is hereby directed to hold the Shares and the certificates representing
the Shares, and the two promissory notes referred to herein, in a bank
safety deposit box obtained by the Note and Stock Escrow agent for this
purpose at the ____________________bank, located at ___________________.
Exhibit 10.1 - Pg. 20
3. Disbursement of Note and Stock Escrow.
a. Disbursements to the Buyer. Note and Stock
releases from the Note and Stock Escrow shall be made as follows. (i)
Upon receipt by the Cash Escrow Agent of the Initial Cash Escrow
Deposit (as defined in the Cash Escrow Agreement), the Cash Escrow
Agent shall provide the Note and Stock Escrow Agent with satisfactory
documentation of receipt of such deposit and the amount thereof.
Thereupon, the Note and Escrow Agent shall release to the Buyer the
first certificate for approximately one third of the Shares. Upon
receipt by the Cash Escrow Agent of the $50,000 payment of Promissory
Note No. 1, the Cash Escrow Agent shall provide the Note and Stock
Escrow Agent with satisfactory documentation of receipt of such
payment and the amount thereof. Thereupon, the Note and Escrow Agent
shall release to the Buyer the second certificate for approximately
one third of the Shares. Upon the sooner to occur of (i) payment in
full to the Cash Escrow Agent of Promissory Note No. 2 or (ii)
completion of a reverse merger involving the Corporation and payment
by the Buyer to the Cash Escrow Agent (through payments on Promissory
Note No. 2, which shall be made by the Buyer in response to demands
for payment required to be made by the Cash Escrow Agent) of
sufficient funds to pay all of the obligations of the Corporation
incurred between the date of the Closing (as defined in the Stock
Subscription and Purchase Agreement) and the date of completion of the
reverse merger, the third and final certificate for the remaining
approximately one third of the Shares shall be released to the Buyer.
As each of the notes is paid in full by the Buyer (or, in the case of
Promissory Note No. 2, cancelled, as the case may be), the original of
such note shall be given by the Note and Stock Escrow Agent to the
Corporation, which shall cause such original to be marked "CANCELLED"
or "PAID IN FULL" (as the case may be) and delivered to the Buyer.
b. Disbursements to the Corporation. If the Buyer
fails to pay Promissory Note No. 1 in full at the agreed time, the Note
and Escrow Agent shall return to the Corporation for cancellation the
remaining two certificates representing approximately two thirds of the
Shares, and the Buyer shall have no further rights with respect to such
Shares. If the Buyer fails to make any payments properly demanded on
Promissory Note No. 2 or otherwise fails to make such payments under
that note so as to provide sufficient funds to pay all of the
Corporation's obligations incurred between the date of Closing (as
defined in the Stock Subscription and Purchase Agreement and the
completion of a reverse merger involving the Corporation (or the date on
which expenditure of the entire amount of the proceeds of Promissory
Note No. 2 on such obligations (other than those paid with the proceeds
from the Initial Cash Escrow Deposit and Promissory Note No. 1) has
occurred, the Note and Escrow Agent shall return to the Corporation for
cancellation the remaining two certificate representing the final
approximately one third of the Shares, and the Buyer shall have no
further rights with respect to such Shares.
4. Regarding the Note and Stock Escrow Agent.
a. The Corporation and the Buyer, jointly and
severally, agree to hold the Note and Stock Escrow Agent harmless and to
indemnify the Note and Stock Escrow Agent against any loss, liability,
expenses (including attorney's fees and expenses), claim or demand
arising out of or in connection with the performance of its obligations
in accordance with the provisions of this Agreement, including without
limitation, to the fullest extent allowed by applicable law, any such
loss, liability, expenses, claim or demand arising under any securities
laws or regulations, except for the negligence, willful misconduct or
failure of the Note and Stock Escrow Agent to perform its obligations.
The foregoing indemnities in this paragraph shall survive the
resignation of the Note and Stock Escrow Agent or the termination of
this Agreement.
b. The Note and Stock Escrow Agent's duties are only
such as are specifically provided herein, and the Note and Stock Escrow
Agent shall incur no liability whatsoever to the Corporation or the
Buyer, except for its negligence, willful misconduct or failure to
perform its obligations hereunder. The Note and Stock Escrow Agent
Exhibit 10.1 - Pg. 21
shall have no responsibility hereunder other than to follow faithfully
the instructions herein contained, and the Note and Stock Escrow Agent
shall have no duty or obligation to determine which party may at any
time be entitled to the monies on deposit in the Escrow Account. Except
as set forth in this Paragraph 4.b, the Note and Stock Escrow Agent
shall not be liable while acting in accordance with any written
instructions given to it hereunder and believed by it to have been
executed by the proper parties.
c. It is understood and agreed that should any
dispute arise with respect to the payment and/or ownership or right of
possession of any portion of the Note and Stock Escrow Account, the Note
and Stock Escrow Agent is authorized and directed to retain in its
possession, without liability to anyone, all or any part of Note and
Stock Escrow Deposits until such dispute shall have been settled either
by mutual agreement by the parties concerned or by the final order,
decree or judgment of a court or other tribunal of competent
jurisdiction in the United States of America and time for appeal has
expired and no appeal has been perfected, but the Note and Stock Escrow
Agent shall be under no duty whatsoever to institute or defend any such
proceedings. except in case of its negligence, willful misconduct or its
breaching this Agreement.
d. The Note and Stock Escrow Agent may resign at any
time by giving written notice thereof to the other parties hereto, but
such resignation shall not become effective until a successor Note and
Stock Escrow Agent shall have been appointed with the consent of all
parties hereto and shall have accepted such appointment in writing. If
an instrument of acceptance by a successor Note and Stock Escrow Agent
shall have not have been delivered to the Note and Stock Escrow Agent
within thirty (30) days after the giving of such notice of resignation,
the resigning Note and Stock Escrow Agent may petition any court of
competent jurisdiction for the appointment of a successor Note and Stock
Escrow Agent.
5. Notices. All notices, demands, requests and other
communications required or permitted to be given under the provisions of
this Agreement shall be in writing and shall be deemed duly given on the
date mailed by certified United States delivered (by messenger or
overnight or express delivery service), addressed to the Corporation and
the Buyer as set forth in the Stock Subscription and Purchase Agreement
(the Corporation being referred to therein as the "Seller"). All
notices and demands, given to the Note and Stock Escrow Agent under the
provisions of this Agreement shall be in writing and shall be addressed
to _____________________________.
6. The Parties agree to indemnify the accounting firm of
▇▇▇▇▇▇ & ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ individually, against any claims
brought against any of them pertaining to this Agreement, except to
the extent such claims are based upon the negligence, willful
misconduct or violation of law by ▇▇▇▇▇▇ & ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
individually.
Exhibit 10.1 - Pg. 22
7. General. This Agreement shall be construed in
accordance with the laws of the State of Florida, without giving effect
to the conflicts of laws rules thereof. Each of the Parties submits
unconditionally to the jurisdiction of the Federal Court for the
Southern District of Florida for resolution of any controversy
hereunder. This Agreement may be executed in several counterparts, each
of which shall constitute an original, and all collectively shall
constitute but one agreement.
IN WITNESS WHEREOF, the parties hereto have duly executed
this Agreement as of the date first above written.
ATTEST: ___________________________
(Note and Stock Escrow Agent)
__________________________ By:__________________________
Name:______________________
Title:_____________________
ATTEST: CENTRACK INTERNATIONAL, INC.
__________________________ By:___________________________
Name:______________________
Title:_____________________
_____________________________
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Exhibit 10.1 - Pg. 23