SECURITIES PURCHASE AGREEMENT
EXHIBIT
10.1
This
Securities Purchase Agreement (this “Agreement”) is dated
as of March 25, 2009, among Mexoro Minerals Ltd. (the
“Company”), and
OHAG Holdings Ltd. (including its successors and assigns) the “Purchaser”.
WHEREAS,
subject to the terms and conditions set forth in this Agreement and pursuant to
Section 4(2) of the Securities Act of 1933, as amended (the “Securities Act”)
and Rule 506 promulgated thereunder, the Company desires to issue and sell to
the Purchaser, and the Purchaser desires to purchase from the Company,
securities of the Company as more fully described in this
Agreement.
NOW,
THEREFORE, IN CONSIDERATION of the mutual covenants contained in this Agreement,
and for other good and valuable consideration the receipt and adequacy of which
are hereby acknowledged, the Company and the Purchaser agree as
follows:
ARTICLE
I.
DEFINITIONS
1.1 Definitions
. In
addition to the terms defined elsewhere in this Agreement, for all purposes of
this Agreement, the following terms have the meanings indicated in this Section
1.1:
“Xxxx Guarantee” shall
mean that Affiliate Guarantee in the form attached hereto as Exhibit
G.
“Closing” means the
closing of the purchase and sale of the Securities pursuant to Section
2.1.
“Closing Date” means
the Trading Day when all of the Transaction Documents have been executed and
delivered by the applicable parties thereto, and all conditions precedent to (i)
the Purchaser’s obligations to pay the Subscription Amount and (ii) the
Company’s obligations to deliver the Securities have been satisfied or
waived.
“Commission” means the
Securities and Exchange Commission.
“Common Stock” means
the common stock of the Company, no par value per share, and any other class of
securities into which such securities may hereafter have been reclassified or
changed into.
“Common Stock
Equivalents” means any securities of the Company or the Subsidiaries
which would entitle the holder thereof to acquire at any time Common Stock,
including, without limitation, any debt, preferred stock, rights, options,
warrants or other instrument that is at any time convertible into or exercisable
or exchangeable for, or otherwise entitles the holder thereof to receive, Common
Stock.
“Company Counsel”
means FMC.
“Conversion Price”
shall have the meaning ascribed to such term in the Debentures.
“Debenture” means the
convertible debenture agreement, dated the date hereof, among the Company and
the Purchaser, in the form of Exhibit A attached
hereto.
“Escrow Shares” has
the meaning set out in Section 2.1.
“Exchange Act” means
the Securities Exchange Act of 1934, as amended, and the rules and regulations
promulgated thereunder.
“Funds Escrow Agent”
shall mean FMC.
“Funds Escrow
Agreement” shall mean the escrow agreement concerning the transfer of
funds, dated the date hereof, between the Company, Purchaser and the Escrow
Agent, in the form of Exhibit D attached
hereto.
“Person” means an
individual or corporation, partnership, trust, incorporated or unincorporated
association, joint venture, limited liability company, joint stock company,
government (or an agency or subdivision thereof) or other entity of any
kind.
“Proceeding” means an
action, claim, suit, investigation or proceeding (including, without limitation,
an investigation or partial proceeding, such as a deposition), whether commenced
or threatened.
“MRT Purchase
Agreement” means the Purchase Agreement, dated the date hereof, among the
Company and the Purchaser, in the form of Exhibit E attached
hereto.
“Securities” means the
Debentures, warrants, the Underlying Shares, the Escrow Shares and the Initial
Shares.
“Securities Act” means
the Securities Act of 1933, as amended.
“Security Agreements”
means the Mexoro General Security Agreement, dated the date hereof, among the
Company and the Purchaser, in the form of Exhibit B attached
hereto and the Sunburst General Security Agreement, in the form of Exhibit C attached
hereto.
“Shares Escrow Agent”
shall mean Xxxxxxx Ortoli Xxxxxx-Xxxx Xxxxxxxxxx LLP.
“Shares Escrow
Agreement” shall mean the escrow agreement concerning the Escrow Shares,
dated the date hereof, between the Company, Purchaser and the Escrow Agent, in
the form of Exhibit
F attached hereto.
“Short Sales” shall
include all “short sales” as defined in Rule 200 of Regulation SHO under the
Exchange Act (but shall not be deemed to include the location and/or reservation
of borrowable shares of Common Stock).
“FMC” shall mean
Fraser Xxxxxx Casgrain LLP, 000 Xxxx Xxxxxx Xxxx, Xxxxxxx, Xxxxxxx, X0X 0X0,
Xxxxxx.
“Subscription Amount”
means, as to the Purchaser, the aggregate amount to be paid for the Debentures
and warrants purchased hereunder as specified below such Purchaser’s name on the
signature page of this Agreement and next to the heading “Subscription Amount”,
in United States Dollars and in immediately available funds.
“Trading Day” means a
day on which the Common Stock is traded on a Trading Market.
“Trading Market” means
the following markets or exchanges on which the Common Stock is listed or quoted
for trading on the date in question: the Nasdaq Capital Market, the American
Stock Exchange, the New York Stock Exchange, the Nasdaq National Market, the OTC
Bulletin Board or the Pink Sheets.
“Transaction
Documents” means this Agreement, the Funds Escrow Agreement, the Shares
Escrow Agreement, the Debenture and the Security Agreements and any other
documents or agreements executed in connection with the transactions
contemplated hereunder.
“Underlying Shares”
means the shares of Common Stock issued and issuable upon conversion or
redemption of the Debentures and upon exercise of the warrants in accordance
with the terms of the Debentures.
ARTICLE
II.
PURCHASE
AND SALE
2.1 Closing. Upon
satisfaction of the conditions set forth in Sections 2.2 and 2.3, the Closing
shall occur at the offices of FMC, or such other location as the parties shall
mutually agree. On the Closing Date, upon the terms and subject to
the conditions set forth herein, concurrent with the execution and delivery of
this Agreement by the parties hereto:
(a) the
Company agrees to sell, and the Purchaser agrees to purchase $250,000 of
Debentures. The Purchaser shall deliver to the Escrow Agent via wire
transfer or a certified check immediately available funds equal to its
Subscription Amount and the Company shall deliver to the Purchaser its Debenture
and the other items set forth in Section 2.2 issuable at the
Closing;
(b)
subject to Section 2.4(a) of this Agreement, the Company shall deliver a
certificate in OHAG’s name representing 250,000 of the Company’s common stock
(the “Initial Shares”), which certificate shall contain the common legends
pertaining to securities sold in reliance of the exemptions from the Securities
Act of 1933 provided by Regulation D and/or Regulation S and shall record the
ownership of those shares of common stock on its books (or instruct its transfer
agent to record such ownership; and
(c) the
Company shall place a certificate in the name of OHAG representing 2,250,000 of
its common shares into escrow (the “Escrow Shares”) with the Shares Escrow
Agent. The Parties hereto agree that if (i) the Lender does exercise
its right to notify Minera Rio Tinto that it will not sell the Debenture
pursuant to Section 4 of the MRT Purchase Agreement and (ii) none of Minera Rio
Tinto, the Company or Xxxxx Xxxx purchase the Debenture from the Lender under
the MRT Purchase Agreement, then the Shares Escrow Agent is hereby instructed to
release the Escrow Shares to the Lender. Such release shall be
irrevocable and if the receipt of the Escrow Shares is not sufficient to cover
the amount of the Debenture or any other obligations owing to the Lender under
this or the MRT Purchase Agreement, the Company shall be liable for the
difference in the value of the Escrow Shares and the Debenture and any amounts
owed under other obligations owing to the Lender under this or the MRT Purchase
Agreement.
2.2 Deliveries
.
(a) On or
prior to the Closing Date, the Company shall deliver or cause to be delivered to
the Purchaser the following:
(i) this
Agreement duly executed by the Company;
(ii) a
Debenture duly executed by the Company with a principal amount equal to such
Purchaser’s Subscription Amount, registered in the name of such Purchaser;
and
(iii) the
Security Agreements, duly executed by the Company;
(iv) the Funds
Escrow Agreement, duly executed by the Company;
(v) the
Shares Escrow Agreement;
(vi) the
Escrow Shares (to be delivered to the Shares Escrow Agent); and
(vii) the MRT
Purchase Agreement, duly executed by MRT and the Company; and
(viii) the Xxxx
Guarantee, duly executed by Xxxxx Xxxx.
(b) On or
prior to the Closing Date, the Purchaser shall deliver or cause to be delivered
to the Company (except as noted) the following:
(i) this
Agreement duly executed by such Purchaser;
(ii) the
Security Agreements, duly executed by the Purchaser;
(iii) the Funds
Escrow Agreement, duly executed by the Purchaser;
(iv) the
Shares Escrow Agreement;
(v) such
Purchaser’s Subscription Amount (cash Subscription Amounts to be delivered to
the Escrow Agent); and
(vi) the MRT
Purchase Agreement, duly executed by Purchaser.
2.3 Closing
Conditions.
(a) The
obligations of the Company hereunder in connection with the Closing are subject
to the following conditions being met:
(i) the
accuracy in all material respects when made and on the Closing Date of the
representations and warranties of the Purchaser contained herein;
(ii) all
obligations, covenants and agreements of the Purchaser required to be performed
at or prior to the Closing Date shall have been performed; and
(iii) the
delivery by the Purchaser of the items set forth in Section 2.2(b) of this
Agreement.
(b) The
obligations of the Purchaser hereunder in connection with the Closing are
subject to the following conditions being met:
(i) the
accuracy in all material respects on the Closing Date of the representations and
warranties of the Company contained herein;
(ii) all
obligations, covenants and agreements of the Company required to be performed at
or prior to the Closing Date shall have been performed; and
(iii) the
delivery by the Company of the items set forth in Section 2.2(a) of this
Agreement.
2.4 Condition
Subsequent
(a) Within 30
days of Closing, the Company shall deliver to the Escrow Agent a certificate
representing 250,000 shares of the Company’s common stock, which shall contain
no legends or restrictions on transfer and shall be free of all liens or
encumbrances of any kind (“Replacement Shares”). Upon receipt of such
Replacement Shares, the Escrow Agent shall inform OHAG of such receipt and OHAG
shall return the Initial Shares to the Escrow Agent. Upon receipt by the Escrow
Agent of the Initial Shares and Replacement Shares, the Escrow Agent shall
promptly deliver the Replacement Shares to OHAG and the Initial Shares to the
Company without further instructions from either party.
1
ARTICLE
III.
REPRESENTATIONS
AND WARRANTIES
3.1 Representations and
Warranties of the Company. T
Except as set forth under
the corresponding section of the disclosure schedules delivered to the
Purchasers concurrently herewith (the “Disclosure Schedules”) which Disclosure
Schedules shall be deemed a part hereof, the Company hereby makes the
representations and warranties set forth below to each PurchasTTTThe
Company makes the representations and warranties set forth below to the
Purchaser:
(a) Organization and
Qualification. The Company is an entity duly incorporated or
otherwise organized, validly existing and in good standing under the laws of the
jurisdiction of its incorporation or organization (as applicable), with the
requisite power and authority to own and use its properties and assets and to
carry on its business as currently conducted. Neither the Company nor
any Subsidiary is in violation or default of any of the provisions of its
respective certificate or articles of incorporation, bylaws or other
organizational or charter documents. Each of the Company and the
subsidiaries is duly qualified to conduct business and is in good standing as a
foreign corporation or other entity in each jurisdiction in which the nature of
the business conducted or property owned by it makes such qualification
necessary, except where the failure to be so qualified or in good standing, as
the case may be, could not have or reasonably be expected to result in (i) a
material adverse effect on the legality, validity or enforceability of any
Transaction Document, (ii) a material adverse effect on the results of
operations, assets, business, prospects or condition (financial or otherwise) of
the Company and the Subsidiaries, taken as a whole, or (iii) a material adverse
effect on the Company’s ability to perform in any material respect on a timely
basis its obligations under any Transaction Document (any of (i), (ii) or (iii),
a “Material Adverse
Effect”) and no Proceeding has been instituted in any such jurisdiction
revoking, limiting or curtailing or seeking to revoke, limit or curtail such
power and authority or qualification.
(b) Authorization;
Enforcement. The Company has the requisite corporate power and
authority to enter into and to consummate the transactions contemplated by each
of the Transaction Documents and otherwise to carry out its obligations
hereunder and thereunder. The execution and delivery of each of the
Transaction Documents by the Company and the consummation by it of the
transactions contemplated thereby have been duly authorized by all necessary
action on the part of the Company and no further action is required by the
Company, its board of directors or its stockholders in connection therewith
other than in connection with the Required Approvals. Each
Transaction Document has been (or upon delivery will have been) duly executed by
the Company and, when delivered in accordance with the terms hereof and thereof,
will constitute the valid and binding obligation of the Company enforceable
against the Company in accordance with its terms except (i) as limited by
applicable bankruptcy, insolvency, reorganization, moratorium and other laws of
general application affecting enforcement of creditors’ rights generally and
(ii) as limited by laws relating to the availability of specific performance,
injunctive relief or other equitable remedies.
(c) Valid Issuance of
Securities. The
Securities, when issued, sold and delivered in accordance with the terms and for
the consideration set forth in this Agreement, will be validly issued, fully
paid and nonassessable and free of restrictions on transfer other than
restrictions on transfer under the Transaction Agreements, applicable state and
federal securities laws and liens or encumbrances created by or imposed by a
purchaser. Assuming the accuracy of the representations of the
Purchaser, the Securities will be issued in compliance with all applicable
federal and state securities laws. The Common Stock issuable upon
conversion of the Securities or exercise of the Warrants has been duly reserved
for issuance and will be validly issued, fully paid and nonassessable and free
of restrictions on transfer other than restrictions on transfer
under applicable federal and state securities laws and liens or
encumbrances created by or imposed by the Purchaser.
3.2 Representations and
Warranties of the Purchaser
. The
Purchaser hereby, for itself and for no other Purchaser, represents and warrants
as of the date hereof and as of the Closing Date to the Company as
follows:
(a) Organization;
Authority. Such Purchaser is an entity duly organized, validly
existing and in good standing under the laws of the jurisdiction of its
organization with full right, corporate or partnership power and authority to
enter into and to consummate the transactions contemplated by the Transaction
Documents and otherwise to carry out its obligations hereunder and thereunder.
The execution, delivery and performance by such Purchaser of the transactions
contemplated by this Agreement have been duly authorized by all necessary
corporate or similar action on the part of such Purchaser. Each
Transaction Document to which it is a party has been duly executed by such
Purchaser, and when delivered by such Purchaser in accordance with the terms
hereof, will constitute the valid and legally binding obligation of such
Purchaser, enforceable against it in accordance with its terms, except (i) as
limited by general equitable principles and applicable bankruptcy, insolvency,
reorganization, moratorium and other laws of general application affecting
enforcement of creditors’ rights generally, (ii) as limited by laws relating to
the availability of specific performance, injunctive relief or other equitable
remedies and (iii) insofar as indemnification and contribution provisions may be
limited by applicable law.
(b) Own
Account. Such Purchaser understands that the Securities are
“restricted securities” and have not been registered under the Securities Act or
any applicable state securities law and is acquiring the Securities as principal
for its own account and not with a view to or for distributing or reselling such
Securities or any part thereof in violation of the Securities Act or any
applicable state securities law, has no present intention of distributing any of
such Securities in violation of the Securities Act or any applicable state
securities law and has no arrangement or understanding with any other persons
regarding the distribution of such Securities (this representation and warranty
not limiting such Purchaser’s right to sell the Securities pursuant to the
Registration Statement or otherwise in compliance with applicable federal and
state securities laws) in violation of the Securities Act or any applicable
state securities law. Such Purchaser is acquiring the Securities
hereunder in the ordinary course of its business. Such Purchaser does not have
any agreement or understanding, directly or indirectly, with any Person to
distribute any of the Securities.
(c) Purchaser
Status. At the time such Purchaser was offered the Securities,
it was, and at the date hereof it is, and on each date on which it converts any
Debentures it will be either: (i) an “accredited investor” as defined in Rule
501(a)(1), (a)(2), (a)(3), (a)(7) or (a)(8) under the Securities Act or (ii) a
“qualified institutional buyer” as defined in Rule 144A(a) under the Securities
Act. Such Purchaser is not required to be registered as a
broker-dealer under Section 15 of the Exchange Act.
(d) Experience of Such
Purchaser. Such Purchaser, either alone or together with its
representatives, has such knowledge, sophistication and experience in business
and financial matters so as to be capable of evaluating the merits and risks of
the prospective investment in the Securities, and has so evaluated the merits
and risks of such investment. Such Purchaser is able to bear the
economic risk of an investment in the Securities and, at the present time, is
able to afford a complete loss of such investment.
(e) General
Solicitation. Such Purchaser is not purchasing the Securities
as a result of any advertisement, article, notice or other communication
regarding the Securities published in any newspaper, magazine or similar media
or broadcast over television or radio or presented at any seminar or any other
general solicitation or general advertisement.
(f) Short Sales and
Confidentiality Prior To The Date Hereof. Other than the
transaction contemplated hereunder, such Purchaser has not directly or
indirectly, nor has any Person acting on behalf of or pursuant to any
understanding with such Purchaser, executed any disposition, including Short
Sales, in the securities of the Company during the period commencing from
the time that such Purchaser first received a term sheet from the Company or any
other Person setting forth the material terms of the transactions contemplated
hereunder until the date hereof (“Discussion Time”). Notwithstanding the foregoing, in
the case of a Purchaser that is a multi-managed investment vehicle whereby
separate portfolio managers manage separate portions of such Purchaser's assets
and the portfolio managers have no direct knowledge of the investment decisions
made by the portfolio managers managing other portions of such Purchaser's
assets, the representation set forth above shall only apply with respect to the
portion of assets managed by the portfolio manager that made the investment
decision to purchase the Securities covered by this Agreement. Other
than to other Persons party to this Agreement, such Purchaser has maintained the
confidentiality of all disclosures made to it in connection with this
transaction (including the existence and terms of this
transaction).
The
Company acknowledges and agrees that the Purchaser does not make or has not made
any representations or warranties with respect to the transactions contemplated
hereby other than those specifically set forth in this Section 3.2.
ARTICLE
IV.
MISCELLANEOUS
4.1 Termination.
This Agreement may be terminated by any Purchaser, as to such Purchaser’s
obligations hereunder only and without any effect whatsoever on the obligations
between the Company and the other Purchaser, by written notice to the other
parties, if the Closing has not been consummated on or before March 31, 2009;
provided, however, that no such
termination will affect the right of any party to xxx for any breach by the
other party (or parties). The Company retains the exclusive,
unilateral right to delay termination on March 31, 2009 for an additional 30
days.
4.2 Fees and
Expenses. At the Closing, the Company has agreed to reimburse
FMC the non-accountable sum of $[______], for serving as escrow agent, of which
shall have been paid prior to the Closing. Except as expressly set
forth in the Transaction Documents to the contrary, each party shall pay the
fees and expenses of its advisers, counsel, accountants and other experts, if
any, and all other expenses incurred by such party incident to the negotiation,
preparation, execution, delivery and performance of this
Agreement. The Company shall pay all transfer agent fees, stamp taxes
and other taxes and duties levied in connection with the delivery of any
Securities.
4.3 Entire
Agreement. The Transaction Documents, together with the
exhibits and schedules thereto, contain the entire understanding of the parties
with respect to the subject matter hereof and supersede all prior agreements and
understandings, oral or written, with respect to such matters, which the parties
acknowledge have been merged into such documents, exhibits and
schedules.
4.4 Notices. Any
and all notices or other communications or deliveries required or permitted to
be provided hereunder shall be in writing and shall be deemed given and
effective on the earliest of (a) the date of transmission, if such notice or
communication is delivered via facsimile at the facsimile number set forth on
the signature pages attached hereto prior to 5:30 p.m. (New York City time) on a
Trading Day, (b) the next Trading Day after the date of transmission, if such
notice or communication is delivered via facsimile at the facsimile number set
forth on the signature pages attached hereto on a day that is not a Trading Day
or later than 5:30 p.m. (New York City time) on any Trading Day, (c) the 2nd Trading
Day following the date of mailing, if sent by U.S. nationally recognized
overnight courier service, or (d) upon actual receipt by the party to whom such
notice is required to be given. The address for such notices and
communications shall be as set forth on the signature pages attached
hereto.
4.5 Headings. The
headings herein are for convenience only, do not constitute a part of this
Agreement and shall not be deemed to limit or affect any of the provisions
hereof. The language used in this Agreement will be deemed to be the
language chosen by the parties to express their mutual intent, and no rules of
strict construction will be applied against any party.
4.6 Successors and
Assigns. This Agreement shall be binding upon and inure to the
benefit of the parties and their successors and permitted
assigns. The Company may not assign this Agreement or any rights or
obligations hereunder without the prior written consent of the
Purchaser. Any Purchaser may assign any or all of its rights under
this Agreement to any Person to whom such Purchaser assigns or transfers any
Securities, provided such transferee agrees in writing to be bound, with respect
to the transferred Securities, by the provisions hereof that apply to the
“Purchaser”.
4.7 No Third-Party
Beneficiaries. This Agreement is intended for the benefit of
the parties hereto and their respective successors and permitted assigns and is
not for the benefit of, nor may any provision hereof be enforced by, any other
Person.
4.8 Governing
Law. All questions concerning the construction, validity,
enforcement and interpretation of the Transaction Documents shall be governed by
and construed and enforced in accordance with the internal laws of the State of
New York, without regard to the principles of conflicts of law
thereof. Each party agrees that all legal proceedings concerning the
interpretations, enforcement and defense of the transactions contemplated by
this Agreement and any other Transaction Documents (whether brought against a
party hereto or its respective affiliates, directors, officers, shareholders,
employees or agents) shall be commenced exclusively in the state and federal
courts sitting in the City of New York. Each party hereby irrevocably submits to
the exclusive jurisdiction of the state and federal courts sitting in the City
of New York, borough of Manhattan for the adjudication of any dispute hereunder
or in connection herewith or with any transaction contemplated hereby or
discussed herein (including with respect to the enforcement of any of the
Transaction Documents), and hereby irrevocably waives, and agrees not to assert
in any suit, action or proceeding, any claim that it is not personally subject
to the jurisdiction of any such court, that such suit, action or proceeding is
improper or inconvenient venue for such proceeding. Each party hereby
irrevocably waives personal service of process and consents to process being
served in any such suit, action or proceeding by mailing a copy thereof via
registered or certified mail or overnight delivery (with evidence of delivery)
to such party at the address in effect for notices to it under this Agreement
and agrees that such service shall constitute good and sufficient service of
process and notice thereof. Nothing contained herein shall be deemed
to limit in any way any right to serve process in any manner permitted by
law. The parties hereby waive all rights to a trial by
jury. If either party shall commence an action or proceeding to
enforce any provisions of the Transaction Documents, then the prevailing party
in such action or proceeding shall be reimbursed by the other party for its
attorneys’ fees and other costs and expenses incurred with the investigation,
preparation and prosecution of such action or proceeding.
4.9 Survival. The
representations and warranties contained herein shall survive the Closing and
the delivery of the Securities.
4.10 Execution. This
Agreement may be executed in two or more counterparts, all of which when taken
together shall be considered one and the same agreement and shall become
effective when counterparts have been signed by each party and delivered to the
other party, it being understood that both parties need not sign the same
counterpart. In the event that any signature is delivered by
facsimile transmission, such signature shall create a valid and binding
obligation of the party executing (or on whose behalf such signature is
executed) with the same force and effect as if such facsimile signature page
were an original thereof.
4.11 Severability. If
any provision of this Agreement is held to be invalid or unenforceable in any
respect, the validity and enforceability of the remaining terms and provisions
of this Agreement shall not in any way be affected or impaired thereby and the
parties will attempt to agree upon a valid and enforceable provision that is a
reasonable substitute therefor, and upon so agreeing, shall incorporate such
substitute provision in this Agreement.
4.12 Rescission and Withdrawal
Right. Notwithstanding anything to the contrary contained in
(and without limiting any similar provisions of) the Transaction Documents,
whenever any Purchaser exercises a right, election, demand or option under a
Transaction Document and the Company does not timely perform its related
obligations within the periods therein provided, then such Purchaser may rescind
or withdraw, in its sole discretion from time to time upon written notice to the
Company, any relevant notice, demand or election in whole or in part without
prejudice to its future actions and rights.
4.13 Remedies. In
addition to being entitled to exercise all rights provided herein or granted by
law, including recovery of damages, the Purchaser and the Company will be
entitled to specific performance under the Transaction Documents. The
parties agree that monetary damages may not be adequate compensation for any
loss incurred by reason of any breach of obligations described in the foregoing
sentence and hereby agrees to waive in any action for specific performance of
any such obligation the defense that a remedy at law would be
adequate.
4.14 Payment Set
Aside. To the extent that the Company makes a payment or
payments to any Purchaser pursuant to any Transaction Document or a Purchaser
enforces or exercises its rights thereunder, and such payment or payments or the
proceeds of such enforcement or exercise or any part thereof are subsequently
invalidated, declared to be fraudulent or preferential, set aside, recovered
from, disgorged by or are required to be refunded, repaid or otherwise restored
to the Company, a trustee, receiver or any other person under any law
(including, without limitation, any bankruptcy law, state or federal law, common
law or equitable cause of action), then to the extent of any such restoration
the obligation or part thereof originally intended to be satisfied shall be
revived and continued in full force and effect as if such payment had not been
made or such enforcement or setoff had not occurred.
4.15 Independent Nature of
Purchaser’ Obligations and Rights. The obligations of the
Purchaser under any Transaction Document are several and not joint with the
obligations of any other purchaser of a Debenture, and no purchaser shall be
responsible in any way for the performance of the obligations of any other
purchaser under any Transaction Document. Nothing contained herein or
in any Transaction Document, and no action taken by any Purchaser pursuant
thereto, shall be deemed to constitute the Purchaser as a partnership, an
association, a joint venture or any other kind of entity, or create a
presumption that the Purchaser are in any way acting in concert or as a group
with respect to such obligations or the transactions contemplated by the
Transaction Documents. The Purchaser shall be entitled to
independently protect and enforce its rights, including without limitation, the
rights arising out of this Agreement or out of the other Transaction Documents,
and it shall not be necessary for any other Purchaser to be joined as an
additional party in any proceeding for such purpose. The Purchaser
has been represented by its own separate legal counsel in their review and
negotiation of the Transaction Documents. For reasons of
administrative convenience only, Purchaser and its respective counsel have
chosen to communicate with the Company through FMC.
4.16 Liquidated
Damages. The Company’s obligations to pay any partial
liquidated damages or other amounts owing under the Transaction Documents is a
continuing obligation of the Company and shall not terminate until all unpaid
partial liquidated damages and other amounts have been paid notwithstanding the
fact that the instrument or security pursuant to which such partial liquidated
damages or other amounts are due and payable shall have been
canceled.
4.17 Construction. The
parties agree that each of them and/or their respective counsel has reviewed and
had an opportunity to revise the Transaction Documents and, therefore, the
normal rule of construction to the effect that any ambiguities are to be
resolved against the drafting party shall not be employed in the interpretation
of the Transaction Documents or any amendments hereto.
4.18 Security Agreements Funds
Escrow Agreement and Shares Escrow Agreement. The parties
acknowledge that the provisions of the Mexoro General Security Agreement, the
Sunburst General Security Agreement, the Funds Escrow Agreement and the Shares
Escrow Agreement in the forms attached hereto as Exhibit B, Exhibit C and
Exhibit D, respectively, are incorporated by reference and made a part hereof,
and that the Purchaser's signature hereto will operate to be effective as such
Purchaser's signature to the Security Agreements, the Funds Escrow Agreement and
the Shares Escrow Agreement.
(Signature
Pages Follow)
2
IN WITNESS WHEREOF, the parties hereto
have caused this Securities Purchase Agreement to be duly executed by their
respective authorized signatories as of the date first indicated
above.
|
|
Address for Notice:
|
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By:__/s/ Francisco
Quiroz________________
Name:
Xxxxxxxxx Xxxxxx
Title:
President
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General
Xxxxxx 706
Col.
San Xxxxxx, Chihuahua, Chih.
Mexico,
C.P. 32103
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[REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK
SIGNATURE
PAGE FOR PURCHASER FOLLOWS]
3
[PURCHASER
SIGNATURE PAGES TO MEXORO MINERALS LTD. SECURITIES PURCHASE
AGREEMENT]
IN
WITNESS WHEREOF, the undersigned have caused this Securities Purchase Agreement
to be duly executed by their respective authorized signatories as of the date
first indicated above. EXECUTION OF THIS AGREEMENT BY ANY
PURCHASER SHALL BE DEEMED TO CONSTITUTE EXECUTION OF THE CONVERTIBLE DEBENTURE
ANNEXED HERETO AS EXHIBIT A, THE SECURITY AGREEMENT ANNEXED HERETO AS EXHIBIT B,
THE FUNDS ESCROW AGREEMENT ANNEXED HERETO AS EXHIBIT D AND THE SHARES ESCROW
AGREEMENT ANNEXED HERETO AS EXHIBIT F BY SUCH PURCHASER.
Name of
Purchaser: ________________________________________________________
Signature of Authorized Signatory of
Purchaser: __________________________________
Name of
Authorized Signatory:
____________________________________________________
Title of
Authorized Signatory:
_____________________________________________________
Email
Address of
Purchaser:________________________________________________
Address
for Notice of Purchaser:
Address
for Delivery of Securities for Purchaser (if not same as above):
Subscription
Amount:
EIN
Number: [PROVIDE
THIS UNDER SEPARATE COVER]
[SIGNATURE
PAGES CONTINUE]
