EXHIBIT 10.1
Securities Purchase Agreement
SECURITIES PURCHASE AGREEMENT
This Securities Purchase Agreement (the "Agreement"), dated as of the 1st
day of October, 2006 by and between AVENTURA HOLDINGS, INC., a Florida
corporation ("AVENTURA"), and OHIO FUNDING GROUP, INC., a Michigan corporation
("OHIO FUNDING"), together with its controlling shareholder, XXXXXXX HOLDINGS,
LLC, a Michigan limited liability company ("XXXXXXX"), and made with reference
to the following:
A. AVENTURA is a publicly held corporation organized under the laws of
the State of Florida;
X. XXXXXXX is a privately held limited liability company organized
under the laws of the State of Michigan and a controlling shareholder of OHIO
FUNDING;
C. OHIO FUNDING is a privately held corporation organized under the
laws of the State of Michigan and has authorized capital stock of Fifty Thousand
(50,000) common shares, no par value, of which One Thousand (1,000) shares are
issued and outstanding;
D. The Managers of XXXXXXX have deemed it advisable and in the best
interests of XXXXXXX to partially exercise the Class A Common Stock Purchase
Warrant issued to XXXXXXX on May 16, 2006 by AVENTURA ("Warrant"); and
E. Pursuant to the terms of the Warrant, AVENTURA, XXXXXXX and OHIO
FUNDING propose to enter into this Agreement which provides among other things
that Two Hundred Million (200,000,000) shares of common stock of AVENTURA be
acquired by XXXXXXX in exchange for XXXXXXX'X assignment to AVENTURA of Thirty
Percent (30%) of the outstanding shares of OHIO FUNDING with an agreed value of
One Hundred Thousand Dollars ($100,000) (being the "Purchase Price"), as more
fully described in the Agreement.
NOW, THEREFORE, in consideration of the mutual promises contained herein
and other good and valuable consideration, receipt and sufficiency of which are
hereby acknowledged, the parties hereto agree as follows:
ARTICLE 1
THE ACQUISITION
1.1 PURCHASE AND SALE OF SHARES. At the "Closing" (as hereinafter defined),
AVENTURA shall assign and sell to XXXXXXX and XXXXXXX shall purchase from
AVENTURA Two Hundred Million (200,000,000) shares its duly authorized but
unregistered (and exempt from registration) shares of common stock of AVENTURA
(the "Aventura Shares") in exchange for payment of the "Purchase Price" (as
hereinafter defined).
1.2 PURCHASE PRICE. Pursuant to the terms of the Warrant, the Purchase
Price shall equal XXXXXXX'X assignment to AVENTURA of Three Hundred (300) common
shares, which represents Thirty Percent (30%) of the outstanding shares of OHIO
FUNDING, with an agreed value of one hundred thousand dollars ($100,000) (the
"Ohio Funding Shares"). AVENTURA shall deliver the Aventura Shares to XXXXXXX
for the Purchase Price and XXXXXXX shall deliver the Ohio Funding Shares to
AVENTURA.
1.3 Following the Closing, there will be a total of Three Billion Forty
Three Million Four Hundred and Forty Three Thousand Five Hundred and Twenty
Seven (3,043,443,527) common shares, $.0001 par value per share, issued and
outstanding in AVENTURA.
1.4 At Closing, XXXXXXX shall execute and deliver to AVENTURA that certain
Investment Representation Statement, the form of which is attached hereto as
Exhibit A.
ARTICLE 2
THE CLOSING
2.1 The consummation of the transactions contemplated by this Agreement (the
"Closing") shall take place at the offices of Xxxxxxxxx Xxxxxx PLLC in Ann
Arbor, Michigan, or another location to be mutually determined, on or about
October 1, 2006 (the "Closing Date"), or at such other place or date and time as
may be agreed to by the parties hereto. The parties may exchange documents,
execution copies, schedules and/or any other closing items via electronic
exchange, email, facsimile or otherwise to facilitate a Closing in the event
that all parties are not in the same location on the Closing Date.
2.2 The following conditions are a part of this Agreement and must be
completed on the Closing Date, or such other date specified by the parties: all
schedules to this Agreement shall have been completed and submitted to both
parties except that either party may indicate, by execution of a waiver on the
page indicted for each such schedule that such schedule may be delivered as a
post-closing item.
ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF AVENTURA
3.1 AVENTURA hereby represents and warrants to OHIO FUNDING as follows:
(a) ORGANIZATION, STANDING AND POWER. AVENTURA is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Florida with all requisite corporate power to own or lease its properties and
carry on its businesses as are now being conducted.
(b) QUALIFICATION. AVENTURA is duly qualified and is licensed as a foreign
corporation authorized to do business in each jurisdiction wherein it conducts
its business operations where in each jurisdiction the failure to qualify would
have a material adverse effect on AVENTURA or its business operations. Such
jurisdictions, which are the only jurisdictions in which AVENTURA is duly
qualified and licensed as a foreign corporation, are shown in Schedule A.
(c) AUTHORITY. The execution and delivery of this Agreement and
consummation of the transactions contemplated herein have been duly authorized
by all necessary corporate actions, including but not limited to duly and
validly authorized action and approval by the Board of Directors of AVENTURA.
This Agreement constitutes the valid and binding obligation of AVENTURA
enforceable against it in accordance with its terms, subject to the principles
of equity applicable to the availability of the remedy of specific performance.
This Agreement has been duly executed by AVENTURA and the execution and delivery
of this Agreement and the consummation of the transactions contemplated by this
Agreement shall not result in any breach of any terms or provisions of
AVENTURA's Articles of Incorporation or Bylaws or any document or charter
governing its investments or purchases of securities or of any other agreement,
court order or instrument to which AVENTURA is a party or bound by.
(d) ABSENCE OF UNDISCLOSED LIABILITIES. AVENTURA has no material
liabilities of any nature, whether fixed, absolute, contingent or accrued, which
were not reflected on the financial statements set forth in Schedule A or
otherwise disclosed in this Agreement or any of the Schedules or Exhibits
attached hereto.
(e) TAX MATTERS. All taxes and other assessments and levies which AVENTURA
is required by law to withhold or to collect have been duly withheld and
collected, and have been paid over to the proper government authorities or are
held by AVENTURA in separate bank accounts for such payment or are represented
by depository receipts, and all such withholdings and collections and all other
payments due in connection therewith (including, without limitation, employment
taxes, both the employee's and employer's share) have been paid over to the
government or placed in a separate and segregated bank account for such purpose.
There are no known deficiencies in income taxes for any periods and further, the
representations and warranties as to absence of undisclosed liabilities
contained in Section 3.1(d) includes any and all tax liabilities of whatsoever
kind or nature (including, without limitation, all federal, state, local and
foreign income, profit, franchise, sales, use and property taxes) due or to
become due, incurred in respect of or measured by AVENTURA income or business
prior to the Closing Date.
(f) OPTIONS, WARRANTS, ETC. Except as otherwise provided in the Warrant
and/or as described in Schedule A, there are no outstanding options, warrants,
calls, commitments or agreements of any character to which AVENTURA or its
shareholders are a party or by which AVENTURA or its shareholders are bound, or
are a party, calling for the issuance of shares of capital stock of AVENTURA or
any securities representing the right to purchase or otherwise receive any such
capital stock of AVENTURA.
(g) TITLE TO ASSETS. Except for liens set forth in Schedule A, AVENTURA is
the sole and unconditional owner of, with good and marketable title to, all the
assets and patents listed in the schedules as owned by them and all other
property and assets are free and clear of all mortgages, liens, pledges, charges
or encumbrances of any nature whatsoever.
(h) AGREEMENTS IN FORCE AND EFFECT. Except as set forth in Schedule A, all
material contracts, agreements, plans, promissory notes, mortgages, leases,
policies, licenses, franchises or similar instruments to which AVENTURA is a
party are valid and in full force and effect on the date hereof, and AVENTURA
has not breached any material provision of, and is not in default in any
material respect under the terms of, any such contract, agreement, plan,
promissory note, mortgage, lease, policy, license, franchise or similar
instrument which breach or default would have a material adverse effect upon the
business, operations or financial condition of AVENTURA.
(i) LEGAL PROCEEDINGS, ETC. There are no civil, criminal, administrative,
arbitration or other such proceedings or investigations pending or to the
knowledge of AVENTURA, threatened, in which, individually or in the aggregate,
an adverse determination would materially and adversely affect the assets,
properties, business or income of AVENTURA. AVENTURA has substantially complied
with, and is not in default in any material respect under, any laws, ordinances,
requirements, regulations or orders applicable to its businesses.
(j) GOVERNMENTAL REGULATION. To the knowledge of AVENTURA and except as set
forth in Schedule A, AVENTURA is not in violation of or in default with respect
to any applicable law or any applicable rule, regulation, order, writ or decree
of any court or any governmental commission, board, bureau, agency or
instrumentality, or delinquent with respect to any report required to be filed
with any governmental commission, board, bureau, agency or instrumentality which
violation or default could have a material adverse effect upon the business,
operations or financial condition of AVENTURA.
(k) BROKERS AND FINDERS. AVENTURA shall be solely responsible for payment
to any broker or finder retained by AVENTURA for any brokerage fees, commissions
or finders' fees in connection with the transactions contemplated herein.
AVENTURA has not agreed to pay any fees or commissions to any party.
(l) ACCURACY OF INFORMATION. No representation or warranty by AVENTURA
contained in this Agreement and no statement contained in any public filings,
certificate or other instrument delivered or to be delivered to XXXXXXX pursuant
hereto or in connection with the transactions contemplated hereby (including
without limitation all Schedules and exhibits hereto) contains or will contain
any untrue statement of material fact or omits or will omit to state any
material fact necessary in order to make the statements contained herein or
therein not misleading.
(m) CONSENTS. Except as listed in Schedule A, no consent or approval of, or
registration, qualification or filing with, any governmental authority or other
person is required to be obtained or accomplished by AVENTURA or any shareholder
thereof in connection with the consummation of the transactions contemplated
hereby.
(n) IMPROPER PAYMENTS. Neither AVENTURA, nor any person acting on behalf of
AVENTURA has made any payment or otherwise transmitted anything of value,
directly or indirectly, to (a) any official or any government or agency or
political subdivision thereof for the purpose of influencing any decision
affecting the business of AVENTURA, (b) any customer, supplier or competitor of
AVENTURA or employee of such customer, supplier or competitor, for the purpose
of obtaining, retaining or directing business for AVENTURA, or (c) any political
party or any candidate for elective political office nor has any fund or other
asset of AVENTURA been maintained that was not fully and accurately recorded on
the books of account of AVENTURA.
(o) COPIES OF DOCUMENTS. AVENTURA has made available for inspection and
copying by XXXXXXX and its duly authorized representatives, and will continue to
do so at all times, true and correct copies of all documents which it has filed
with the Securities and Exchange Commission and all other governmental agencies
which are material to the terms and conditions contained in this Agreement.
Furthermore, to the best knowledge of the Board of Directors of AVENTURA, all
filings by AVENTURA, with the Securities and Exchange Commission, and all other
governmental agencies, including but not limited to the Internal Revenue
Service, have contained information which is true and correct, in all material
respects and do not contain any untrue statement of a material fact or omit to
state any material fact necessary to make the statements made therein not
misleading or which could have any material adverse effect upon the financial
condition or operations of AVENTURA.
(p) INVESTMENT INTENT OF SHAREHOLDERS. AVENTURA represents and warrants to
XXXXXXX and OHIO FUNDING that the Ohio Funding Shares being acquired pursuant to
this Agreement are being acquired for its own account and for investment and not
with a view to the public resale or distribution of such shares and further
acknowledges that the shares being issued have not been registered under the
Securities Act and are "restricted securities" as that term is defined in Rule
144 promulgated under the Securities Act and must be held indefinitely unless
they are subsequently registered under the Securities Act or an exemption from
such registration is available.
ARTICLE 4
REPRESENTATIONS AND WARRANTIES OF XXXXXXX AND OHIO FUNDING
4.1 XXXXXXX and OHIO FUNDING hereby represent and warrant to AVENTURA as
follows:
(a) ORGANIZATION, STANDING AND POWER. OHIO FUNDING is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Michigan with all requisite corporate power to own or lease its properties and
carry on its business as is now being conducted.
(b) QUALIFICATION. OHIO FUNDING is duly qualified and licensed as a foreign
corporation authorized to do business in each jurisdiction wherein it conducts
business operations where in each jurisdiction the failure to qualify would have
a material adverse effect on OHIO FUNDING or its business operations. Such
jurisdictions, which are the only jurisdictions in which OHIO FUNDING is duly
qualified and licensed as a foreign corporation, is shown in Schedule B.
(c) CAPITALIZATION OF OHIO FUNDING. The authorized capital stock of OHIO
FUNDING consists of 50,000 common shares of Common Stock, no par value, of which
One Thousand (1,000) shares are issued and outstanding, which shares were duly
authorized, validly issued and fully paid and nonassessable. There are no
shares of preferred stock authorized. There are no preemptive rights with
respect to the OHIO FUNDING stock.
(d) AUTHORITY. The execution and delivery of this Agreement and consummation
of the transactions contemplated herein have been duly authorized by all
necessary corporate action, including but not limited to duly and validly
authorized action and approval by the Board of Managers or Directors of XXXXXXX
and OHIO FUNDING. This Agreement constitutes the valid and binding obligation
of XXXXXXX and OHIO FUNDING, enforceable against it in accordance with its
terms, subject to the principles of equity applicable to the availability of the
remedy of specific performance. This Agreement has been duly executed by
XXXXXXX and OHIO FUNDING and the execution and delivery of this Agreement and
the consummation of the transactions contemplated by this Agreement shall not
result in any breach of any terms or provisions of XXXXXXX'X or OHIO FUNDING'S
organizational documents or of any other agreement, court order or instrument to
which XXXXXXX or OHIO FUNDING is a party or bound.
(e) ABSENCE OF UNDISCLOSED LIABILITIES. OHIO FUNDING has no material
liabilities of any nature, whether fixed, absolute, contingent or accrued, which
were not reflected on the financial statements set forth in Schedule B or
otherwise disclosed in this Agreement or any of the Schedules or Exhibits
attached hereto.
(f) ABSENCE OF CHANGES. Since inception, there has not been any material
adverse change in the condition (financial or otherwise), assets, liabilities,
earnings or business of OHIO FUNDING, except for changes resulting from
completion of transactions in the ordinary course of business.
(g) TAX MATTERS. All taxes and other assessments and levies which OHIO
FUNDING is required by law to withhold or to collect have been duly withheld and
collected, and have been paid over to the proper government authorities or are
held by OHIO FUNDING in separate bank accounts for such payment or are
represented by depository receipts, and all such withholdings and collections
and all other payments due in connection therewith (including, without
limitation, employment taxes, both the employee's and employer's share) have
been paid over to the government or placed in a separate and segregated bank
account for such purpose. There are no known deficiencies in income taxes for
any periods and further, the representations and warranties as to absence of
undisclosed liabilities contained in Section 4.1(e) includes any and all tax
liabilities of whatsoever kind or nature (including, without limitation, all
federal, state, local and foreign income, profit, franchise, sales, use and
property taxes) due or to become due, incurred in respect of or measured by OHIO
FUNDING income or business prior to the Closing Date.
(h) OPTIONS, WARRANTS, ETC. Except as otherwise described in Schedule B,
there are no outstanding options, warrants, calls, commitments or agreements of
any character to which OHIO FUNDING or its shareholders are a party or by which
OHIO FUNDING or its shareholders are bound, or are a party, calling for the
issuance of shares of capital stock of OHIO FUNDING or any securities
representing the right to purchase or otherwise receive any such capital stock
of OHIO FUNDING.
(i) TITLE TO ASSETS. Except for liens set forth in Schedule B, OHIO FUNDING
is the sole and unconditional owner of, with good and marketable title to, all
the assets and patents listed in the schedules as owned by them and all other
property and assets are free and clear of all mortgages, liens, pledges, charges
or encumbrances of any nature whatsoever.
(j) AGREEMENTS IN FORCE AND EFFECT. Except as set forth in Schedule B, all
material contracts, agreements, plans, promissory notes, mortgages, leases,
policies, licenses, franchises or similar instruments to which OHIO FUNDING is a
party are valid and in full force and effect on the date hereof, and OHIO
FUNDING has not breached any material provision of, and is not in default in any
material respect under the terms of, any such contract, agreement, plan,
promissory note, mortgage, lease, policy, license, franchise or similar
instrument which breach or default would have a material adverse effect upon the
business, operations or financial condition of OHIO FUNDING.
(k) LEGAL PROCEEDINGS, ETC. There are no civil, criminal, administrative,
arbitration or other such proceedings or investigations pending or to the
knowledge of OHIO FUNDING, threatened, in which, individually or in the
aggregate, an adverse determination would materially and adversely affect the
assets, properties, business or income of OHIO FUNDING. OHIO FUNDING has
substantially complied with, and is not in default in any material respect
under, any laws, ordinances, requirements, regulations or orders applicable to
its businesses.
(l) GOVERNMENTAL REGULATION. To the knowledge of OHIO FUNDING and except as
set forth in Schedule B, OHIO FUNDING is not in violation of or in default with
respect to any applicable law or any applicable rule, regulation, order, writ or
decree of any court or any governmental commission, board, bureau, agency or
instrumentality, or delinquent with respect to any report required to be filed
with any governmental commission, board, bureau, agency or instrumentality which
violation or default could have a material adverse effect upon the business,
operations or financial condition of OHIO FUNDING.
(m) BROKER AND FINDERS. OHIO FUNDING shall be solely responsible for
payment to any broker or finder retained by OHIO FUNDING for any brokerage fees,
commissions or finders' fees in connection with the transactions contemplated
herein. OHIO FUNDING has not agreed to pay any fees or commissions to any
party.
(n) ACCURACY OF INFORMATION. No representation or warranty by OHIO FUNDING
contained in this Agreement and no statement contained in any certificate or
other instrument delivered or to be delivered to AVENTURA pursuant hereto or in
connection with the transactions contemplated hereby (including without
limitation all Schedules and Exhibits hereto) contains or will contain any
untrue statement of a material fact or omits or will omit to state any material
fact necessary in order to make the statements contained herein or therein not
misleading.
(o) SUBSIDIARIES. OHIO FUNDING does not have any other subsidiaries or own
capital stock representing Ten Percent (10%) or more of the issued and
outstanding stock of any other corporation.
(p) CONSENTS. Except as listed in Schedule B, no consent or approval of, or
registration, qualification or filing with, any other governmental authority or
other person is required to be obtained or accomplished by OHIO FUNDING or any
shareholder thereof, in connection with the consummation of the transactions
contemplated hereby.
(q) IMPROPER PAYMENTS. No person acting on behalf of OHIO FUNDING has made
any payment or otherwise transmitted anything of value, directly or indirectly,
to (a) any official or any government or agency or political subdivision thereof
for the purpose of influencing any decision affecting the business of OHIO
FUNDING, or (b) any political party or any candidate for elective political
office, nor has any fund or other asset of OHIO FUNDING been maintained that was
not fully and accurately recorded on the books of account of OHIO FUNDING.
(r) COPIES OF DOCUMENTS. OHIO FUNDING has made available for inspection and
copying by AVENTURA and its duly authorized representatives, and will continue
to do so at all times, true and correct copies of all documents which it has
filed with any governmental agencies which are material to the terms and
conditions contained in this Agreement. Furthermore, to the best knowledge of
the Board of Directors of OHIO FUNDING, all filings by OHIO FUNDING with
governmental agencies, including but not limited to the Internal Revenue
Service, have contained information which is true and correct in all material
respects and did not contain any untrue statement of a material fact or omit to
state any material fact necessary to make the statements made therein not
misleading or which could have any material adverse effect upon the financial
condition or operations of OHIO FUNDING.
(s) VALID ISSUANCE OF SECURITIES. The Ohio Funding Shares, when assigned,
sold and delivered to AVENTURA in accordance with the terms of this Agreement
for the consideration expressed herein, will be duly and validly issued, fully
paid and non-assessable, and will be free of restrictions on transfer other than
the restrictions on transfer under this Agreement and under applicable state and
federal securities laws.
(t) RELATED PARTY TRANSACTIONS. Except as described on Schedule B, no
employee, officer or director of OHIO FUNDING or member of his or her immediate
family is indebted to OHIO FUNDING, nor is OHIO FUNDING indebted (or committed
to make loans or extend or guarantee credit) to any of them and no member of the
immediate family of any officer or director of OHIO FUNDING is directly or
indirectly interested in any material contract with OHIO FUNDING.
ARTICLE 5
CONDUCT AND TRANSACTIONS PRIOR TO THE EFFECTIVE TIME OF THE ACQUISITION
5.1 CONDUCT AND TRANSACTIONS OF AVENTURA. During the period from the date
hereof to the date of Closing, AVENTURA shall:
(a) Conduct its operations in the ordinary course of business, including but
not limited to, paying all obligations as they mature, complying with all
applicable tax laws, filing all tax returns required to be filed and paying all
taxes due;
(b) Maintain its records and books of account in a manner that fairly and
correctly reflects its income, expenses, assets and liabilities.
(c) AVENTURA shall not, prior to the Closing, materially waste, diminish,
fail to collect or fail to enforce collection of any and all of its revenues,
including, but not limited to, any and all residual income and referral income
all of which are the property of AVENTURA.
5.2 CONDUCT AND TRANSACTIONS OF OHIO FUNDING . During the period from the
date hereof to the date of Closing, OHIO FUNDING shall:
(a) Conduct the operations of OHIO FUNDING in the ordinary course of
business, including but not limited to, incurring debt, paying all obligations
as they mature, complying with all applicable tax laws, filing all tax returns
required to be filed and paying all taxes due;
(b) Maintain its records and books of account in a manner that fairly and
correctly reflects its income, expenses, assets and liabilities.
(c) OHIO FUNDING shall not, prior to the Closing, materially waste,
diminish, fail to collect or fail to enforce collection of any and all of its
revenues, including, but not limited to, any and all residual income and
referral income all of which are the property of OHIO FUNDING.
ARTICLE 6
RIGHTS OF INSPECTION
6.1 During the period from the date of this Agreement to the date of Closing
of the acquisition, AVENTURA and XXXXXXX agree to use their best efforts to give
the other party, including its representatives and agents, full access to the
premises, books and records of AVENTURA and OHIO FUNDING, and to furnish the
other with such reasonable financial and operating data and other information
including, but not limited to, copies of all legal documents and instruments
referred to on any schedule or exhibit hereto, with respect to the business and
properties of AVENTURA or OHIO FUNDING, as the case may be, as the other shall
from time to time request; provided, however, if there are any such
investigations: (1) they shall be conducted in such manner as not to
unreasonably interfere with the operation of the business of the other parties
and (2) such right of inspection shall not affect in any way whatsoever any of
the representations or warranties given by the respective parties hereunder. In
the event of termination of this Agreement, AVENTURA and XXXXXXX will each
return to the other all documents, work papers and other materials obtained from
the other party in connection with the transactions contemplated hereby, and
will take such other steps necessary to protect the confidentiality of such
material.
ARTICLE 7
CONDITIONS TO CLOSING
7.1 CONDITIONS TO OBLIGATIONS OF XXXXXXX. The obligation of XXXXXXX to
perform this Agreement is subject to the satisfaction of the following
conditions on or before the Closing unless waived in writing by XXXXXXX.
(a) REPRESENTATIONS AND WARRANTIES. There shall be no information disclosed
in the schedules delivered by AVENTURA which in the opinion of XXXXXXX would
materially adversely affect the proposed transaction and intent of the parties
as set forth in this Agreement. The representations and warranties of AVENTURA
set forth in Article 3 hereof shall be true and correct in all material respects
as of the date of this Agreement and as of the Closing as though made on and as
of the Closing, except as otherwise permitted by this Agreement.
(b) PERFORMANCE OF OBLIGATIONS. AVENTURA shall have in all material
respects performed all agreements required to be performed by it under this
Agreement and shall have performed in all material respects any actions
contemplated by this Agreement prior to or on the Closing and AVENTURA shall
have complied in all material respects with the course of conduct required by
this Agreement.
(c) CONSENTS. Any consents necessary for or approval of any party listed on
any Schedule delivered by AVENTURA whose consent or approval is required
pursuant thereto shall have been obtained.
(d) STATUTORY REQUIREMENTS. All statutory requirements for the valid
consummation by AVENTURA of the transactions contemplated by this Agreement
shall have been fulfilled.
(e) GOVERNMENTAL APPROVAL. All authorizations, consents, approvals, permits
and orders of all federal and state governmental agencies required to be
obtained by AVENTURA for consummation of the transactions contemplated by this
Agreement shall have been obtained.
7.2 CONDITIONS TO OBLIGATIONS OF AVENTURA. The obligation of AVENTURA to
perform this Agreement is subject to the satisfaction of the following
conditions on or before the Closing unless waived in writing by AVENTURA.
(a) REPRESENTATIONS AND WARRANTIES. There shall be no information disclosed
in the schedules delivered by XXXXXXX or OHIO FUNDING, which in the opinion of
AVENTURA, would materially adversely affect the proposed transaction and intent
of the parties as set forth in this Agreement. The representations and
warranties of XXXXXXX and OHIO FUNDING set forth in Article 4 hereof shall be
true and correct in all material respects as of the date of this Agreement and
as of the Closing as though made on and as of the Closing, except as otherwise
permitted by this Agreement.
(b) PERFORMANCE OF OBLIGATIONS. OHIO FUNDING shall have in all material
respects performed all agreements required to be performed by it under this
Agreement and shall have performed in all material respects any actions
contemplated by this Agreement prior to or on the Closing and OHIO FUNDING shall
have complied in all respects with the course of conduct required by this
Agreement.
(c) CONSENTS. Any consents necessary for or approval of any party listed on
any Schedule delivered by XXXXXXX or OHIO FUNDING, whose consent or approval is
required pursuant thereto, shall have been obtained.
(d) STATUTORY REQUIREMENTS. All statutory requirements for the valid
consummation by OHIO FUNDING of the transactions contemplated by this Agreement
shall have been fulfilled.
(e) GOVERNMENTAL APPROVAL. All authorizations, consents, approvals, permits
and orders of all federal and state governmental agencies required to be
obtained by XXXXXXX for consummation of the transactions contemplated by this
Agreement shall have been obtained.
ARTICLE 8
MATTERS SUBSEQUENT TO CLOSING
8.1 COVENANT OF FURTHER ASSURANCE. The parties covenant and agree that they
shall, from time to time, execute and deliver or cause to be executed and
delivered all such further instruments of conveyance, transfer, assignments,
receipts and other instruments, and shall take or cause to be taken such further
or other actions as the other party or parties to this Agreement may reasonably
deem necessary in order to carry out the purposes and intent of this Agreement.
8.2 RIGHTS UNDER WARRANT AGREEMENT. AVENTURA has issued to XXXXXXX that
certain Warrant with the understanding that XXXXXXX, together with its
successors and assigns, shall have the right to acquire additional common stock
of AVENTURA such that XXXXXXX shall, together with any successors and assigns,
control a majority of the outstanding common stock of AVENTURA. The terms and
conditions of the Warrant are incorporated by reference herein.
ARTICLE 9
SURVIVAL OF REPRESENTATIONS
9.1 All representations, warranties and agreements made by a party shall
survive for the period of the applicable statute of limitations and until the
discovery of any claim, loss, liability or other matter based on fraud, if
longer.
ARTICLE 10
TERMINATION OF AGREEMENT AND ABANDONMENT OF REORGANIZATION
10.1 TERMINATION. Anything herein to the contrary notwithstanding, this
Agreement and any agreement executed as required hereunder and the acquisition
contemplated hereby may be terminated at any time before the Closing as follows:
(a) By mutual written consent of the Boards of Directors or Managers of
AVENTURA and XXXXXXX.
(b) By the Board of Directors of AVENTURA if any of the conditions set forth
in Section 7.2 shall not have been satisfied by the Closing Date.
(c) By the Board of Managers of XXXXXXX if any of the conditions set forth
in Section 7.1 shall not have been satisfied by the Closing Date.
10.2 TERMINATION OF OBLIGATIONS AND WAIVER OF CONDITIONS; PAYMENT OF
EXPENSES. In the event this Agreement and the acquisition are terminated and
abandoned pursuant to this Article 10 hereof, this Agreement shall become void
and of no force and effect and there shall be no liability on the part of any of
the parties hereto, or their respective directors, officers, shareholders or
controlling persons to each other. Each party hereto will pay all costs and
expenses incident to its negotiation and preparation of this Agreement and any
of the documents evidencing the transactions contemplated hereby, including
fees, expenses and disbursements of counsel.
ARTICLE 11
ISSUANCE OF SHARES; FRACTIONAL SHARES
11.1 ISSUANCE OF SHARES. At the Closing, AVENTURA shall issue a letter to
its transfer agent with a copy of the resolution of its Board of Directors
authorizing and directing the issuance of the appropriate number of its shares
of common stock as provided in this Agreement.
11.2 RESTRICTIONS ON SHARES ISSUED BY AVENTURA. Due to the fact that
XXXXXXX will receive shares of AVENTURA common stock in connection with this
Agreement, which have not been registered under the 1933 Act by virtue of the
exemption provided in Section 4(2) of such Act, those shares will contain the
following legend:
The shares represented by this certificate have not been registered under the
Securities Act of 1933. The shares have been acquired for investment and may
not be sold or offered for sale in the absence of an effective Registration
Statement for the shares under the Securities Act of 1933 or an opinion of
counsel to the Corporation that such registration is not required.
ARTICLE 12
MISCELLANEOUS
12.1 CONSTRUCTION. This Agreement shall be construed and enforced in
accordance with the laws of the State of Florida excluding the conflicts of
laws.
12.2 NOTICES. All notices necessary or appropriate under this Agreement
shall be effective when personally delivered or deposited in the United States
mail, postage prepaid, certified or registered, return receipt requested, and
addressed to the parties last known address which addresses are currently as
follows:
If to "AVENTURA" If to "XXXXXXX" or "OHIO FUNDING"
Xxxxx X. Xxxxxxx, CEO Xxxx X. Xxxxxxx
Aventura Holdings, Inc. 25221 Dequindre
0000 Xxxxxxxx Xxxx., Xxxxx Xxxxx Xxxxxxx Xxxxxxx, Xxxxxxxx 00000
Xxxxx, Xxxxxxx 00000
With copies to:
Xxxxxxx X. Xxxxxxx, Esq.
Xxxxxxxxx Xxxxxx PLLC
000 X. Xxxxxxx, Xxxxx 000
Xxx Xxxxx, XX 00000-0000
12.3 AMENDMENT AND WAIVER. The parties hereby may, by mutual agreement in
writing signed by each party, amend this Agreement in any respect. Any term or
provision of this Agreement may be waived in writing signed by an authorized
officer at any time by the party which is entitled to the benefits thereof, such
waiver right shall include, but not be limited to, the right of either party to:
(a) Extend the time for the performance of any of the obligations of the
other;
(b) Waive any inaccuracies in representations by the other contained in this
Agreement or in any document delivered pursuant hereto;
(c) Waive compliance by the other with any of the covenants contained in
this Agreement, and performance of any obligations by the other; and
(d) Waive the fulfillment of any condition that is precedent to the
performance by the party so waiving of any of its obligations under this
Agreement.
Any writing on the part of a party relating to such amendment, extension or
waiver as provided in this Section 12.3 shall be valid if authorized or ratified
by the Board of Directors or Managers of such party.
12.4 REMEDIES NOT EXCLUSIVE. No remedy conferred by any of the specific
provisions of this Agreement is intended to be exclusive of any other remedy,
and each and every remedy shall be cumulative and shall be in addition to every
other remedy given hereunder or now or hereafter existing at law or in equity or
by statute or otherwise. The election of any one or more remedies by AVENTURA,
XXXXXXX or OHIO FUNDING shall not constitute a waiver of the right to pursue
other available remedies.
12.5 COUNTERPARTS, FACSIMILE SIGNATURES. 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. Execution of this
Agreement or any counterpart or any schedule or waiver or amendment may be by
delivery of a facsimile copy of a signature on behalf of a party authorized to
sign and such facsimile copy shall be binding upon the party delivering same.
12.6 BENEFIT. This Agreement shall be binding upon, and inure to the
benefit of, the respective successors and assigns of AVENTURA, XXXXXXX and OHIO
FUNDING and their shareholders.
12.7 ENTIRE AGREEMENT. This Agreement and the Schedules and Exhibits
attached hereto, represent the entire agreement of the undersigned regarding the
subject matter hereof, and supersedes all prior written or oral understandings
or agreements between the parties.
12.8 CAPTIONS AND SECTION HEADINGS. Captions and section headings used
herein are for convenience only and shall not control or affect the meaning or
construction of any provision of this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
date first written above.
AVENTURA HOLDINGS, INC. XXXXXXX HOLDINGS, LLC
By: /s/ Xxxxx X. Xxxxxxx By: /s/ Xxxx X. Xxxxxxx
----------------------- ---------------------
Xxxxx X. Xxxxxxx Xxxx X. Xxxxxxx
Its: President Its: Manager
--------- -------
OHIO FUNDING GROUP, INC.
By: /s/ Xxxx X. Xxxxxxx
----------------------
Xxxx X. Xxxxxxx
Its: President
---------
EXHIBIT A
INVESTMENT REPRESENTATION STATEMENT
PURCHASER: XXXXXXX HOLDINGS, LLC
ISSUER: AVENTURA HOLDINGS, INC. (Referred to herein as the "Company")
SECURITY: Common Stock, par value $.0001
QUANTITY: 200,000,000 Shares
In connection with the purchase of the above-listed Securities of the Company,
the undersigned Purchaser represents to the Company the following:
(1) Investment. The Purchaser is aware of the Company's business affairs
-----------
and financial condition. The Purchaser is purchasing the Securities for
investment for its own account only and not with a view to, or for resale in
connection with, any "distribution" thereof within the meaning of the Securities
Act of 1933 (as Amended). These securities have not been registered under the
Securities Act by reason of a specific exemption therefrom, which exemption
depends on, among other things, the bona fide nature of the investment intent as
expressed herein. In this connection the Purchaser understands that, in view of
the Securities and Exchange Commission ("SEC"), the statutory basis for such
exemption may be unavailable if this representation was predicated solely upon a
present intention to hold these Securities for the minimum capital gains period
specified under tax statutes, for a deferred sale, for or until an increase or
decrease in the market price of the Securities or for the period of one year or
any other fixed period in the future.
(2) Restrictions on Transfer Under Securities Act. The Purchaser further
-------------------------------------------------
acknowledges and understands that the Securities must be held indefinitely
unless they are subsequently registered under the Securities Act or unless an
exemption from such registration is available. Moreover, the Purchaser
understands that the Company is under no obligation to register the Securities.
In addition, the Purchaser understands that the certificate evidencing the
Securities will be imprinted with a legend which prohibits the transfer of the
Securities unless they are registered or unless the Company receives an opinion
of counsel reasonably satisfactory to the Company that such registration is not
required.
(3) Sales Under Rule 144. The Purchaser is aware of the adoption of Rule
------------------------
144 by the SEC promulgated under the Securities Act, which in substance permits
limited public resale of securities acquired in a non- public offering subject
to the satisfaction of certain conditions, including: (i) the availability of
certain current public information about the Company, (ii) the resale being made
through a broker in an unsolicited "broker's transaction" or in transactions
directly with a " market maker," and (iv) the amount of securities sold during
any three-month period not exceeding specified limitations (generally 1% of the
total shares outstanding).
(4) Limitations on Rule 144. The Purchaser further acknowledges and
---------------------------
understands that while the Company does now satisfy the availability of public
information requirement of Rule 144, at any time the Purchaser desires to sell
the Securities, the Company might not be then compliant with such public
information requirement of Rule 144, and, in such case, the Purchaser would be
precluded from selling the Securities under Rule 144 even if the minimum holding
period had been satisfied.
XXXXXXX HOLDINGS, LLC
By: /s/ Xxxx X. Xxxxxxx
----------------------
Xxxx X. Xxxxxxx
Its: Manager
-------
SCHEDULE A
EXCEPTIONS/DISCLOSURES FOR AVENTURA
SCHEDULE B
EXCEPTIONS/DISCLOSURES FOR XXXXXXX AND OHIO FUNDING
Florida
