FORM OF SECURITIES PURCHASE AGREEMENT
Dated as of August 26, 2004
EXHIBITS
Exhibit A - List of Purchasers and Shares Purchased
SECURITIES PURCHASE AGREEMENT
This Agreement, dated as of August 26, 2004, is entered into by and among
Infinity Capital Group, Inc., a Maryland corporation (the \"Company\"), and the
individuals and entities listed on Exhibit A hereto as Purchasers (the
\"Purchasers\"). In consideration of the mutual promises and covenants
contained in this Agreement, the parties hereto agree as follows:
1. Sale of Shares.
1.1 Sale of Shares. Subject to the terms and conditions of this Agreement,
at the Closing (as defined in Section 2.1) the Company will sell and transfer to
each of the Purchasers, and each of the Purchasers will purchase, the number of
shares of common stock of Azonic Corporation (\"Azonic\"), a Nevada corporation
(the \"Common Stock\"), set forth opposite such Purchaser's name on Exhibit A,
for the purchase price of $0.0091087 per share (the \"Purchase Price\"). The
shares of Common Stock sold under this Agreement are referred to as the
\"Shares.\" The Company's agreement with each Purchaser is a separate
agreement, and the sale of Shares to each Purchaser is a separate sale.
2. Closing.
2.1 The Closing. The closing (the \"Closing\") of the sale and purchase of
the Shares under this Agreement shall take place at the offices of the Company,
0 Xxx Xxxxxx, Xxxxx 000, Xxx Xxxx, Xxx Xxxx 00000 (or remotely via the exchange
of documents and signatures) as of the date of this Agreement (the \"Closing
Date\"). At the Closing:
(a) the Company shall deliver to each of the Purchasers a certificate for
the number of Shares set forth opposite such Purchaser's name on Exhibit A,
registered in the name of such Purchaser; and
(b) each Purchaser shall pay to the Company, by wire transfer of immediately
available funds or other method acceptable to the Company, the aggregate
Purchase Price for the number of Shares such purchaser is purchasing hereunder.
3. Representations and Warranties of the Company. The Company hereby
represents and warrants to each Purchaser that the statements contained in this
Section 3 are complete and accurate as of the date of this Agreement.
3.1 Organization and Standing. The Company is a corporation duly organized,
validly existing and in good standing under the laws of the State of Maryland
and has full corporate power and authority to conduct its business as presently
conducted and as proposed to be conducted by it and to enter into and perform
this Agreement and to carry out the transactions contemplated by this Agreement.
The Company has at all times complied with all provisions of its Certificate of
Incorporation and By-laws and is not in default under, or in violation of, any
such provision.
3.2 Authority for Agreement; No Conflict. The execution, delivery and
performance by the Company of this Agreement, and the consummation by the
Company of the transactions contemplated hereby, have been duly authorized by
all necessary corporate action. This Agreement has been duly executed and
delivered by the Company and constitutes valid and binding obligations of the
Company enforceable in accordance with its terms, subject as to enforcement of
remedies to applicable bankruptcy, insolvency, reorganization, moratorium or
similar laws affecting generally the enforcement of creditors' rights and
subject to a court's discretionary authority with respect to the granting of a
decree ordering specific performance or other equitable remedies. The execution
and delivery of this Agreement, the consummation of the transactions
contemplated hereby and the compliance with its provisions by the Company will
not (a) conflict with or violate any provision of the Certificate of
Incorporation or By-laws of the Company, (b) require on the part of the Company
any filing with, or any permit, order, authorization, consent or approval of,
any United States court, arbitrational tribunal, administrative agency or
commission or other United States governmental or regulatory authority or agency
(each of the foregoing is hereafter referred to as a \"Governmental Entity\")
other than the filing of a Form 4 and an amendment to the Company's current
Schedule 13D promulgated under the United States Securities Exchange Act of
1934, as amended (the \"Exchange Act\"), (c) conflict with, result in a breach
of, constitute (with or without due notice or lapse of time or both) a default
under, result in the acceleration of obligations under, create in any party the
right to accelerate, terminate, modify or cancel, or require any notice, consent
or waiver under, any contract, lease, sublease, license, sublicense, franchise,
permit, indenture, agreement or mortgage for borrowed money, instrument of
indebtedness, Security Interest (as defined below) or other arrangement to which
the Company is a party or by which the Company is bound or to which its assets
are subject, other than any of the foregoing events listed in this clause (c)
which would not, individually or in the aggregate, be reasonably expected to
have a material adverse effect on the Company's business, assets, liabilities,
operations or financial condition (a \"Material Adverse Effect\"), (d) result in
the imposition of any Security Interest upon any assets of the Company or (e)
violate any order, writ, injunction, decree, statute, rule or regulation
applicable to the Company or any of its properties or assets. For purposes of
this Agreement, \"Security Interest\" means any mortgage, pledge, security
interest, encumbrance, charge, or other lien (whether arising by contract or by
operation of law).
3.3 Governmental Consents. Based in part on the representations and
warranties of the Purchasers set forth in Section 4 of this Agreement, no
consent, approval, order or authorization of, or registration, qualification,
designation, declaration or filing with, any Governmental Entity is required on
the part of the Company in connection with the offer, issuance, sale and
delivery of the Shares or the other transactions contemplated by this Agreement
(other than filings required under the Exchange Act). In reliance on the
representations and warranties made by each of the Purchasers in Section 4 of
this Agreement, the offer and sale of the Shares to each of the Purchasers will
be in compliance with applicable United States federal and state securities
laws.
4. Representations and Warranties of the Purchasers. Each of the Purchasers
severally (as to itself only and not as to any other Purchaser) represents and
warrants to the Company as follows:
4.1 Authorization; Enforceability.
Such Purchaser has the full power and authority to enter into this Agreement and
to perform his, her or its obligations thereunder. If such Purchaser is an
entity, such Purchaser has taken all corporate, partnership, limited liability,
trust or similar action necessary to authorize its execution and delivery of
this Agreement. This Agreement have been duly executed and delivered by such
Purchaser and, assuming the due authorization, execution, and delivery by the
Company and the other Purchasers, constitutes his, her or its valid and binding
obligation, enforceable in accordance with the terms of this Agreement, subject
to applicable bankruptcy, reorganization, insolvency, and similar laws affecting
creditors' rights generally and to general principles of equity.
4.2 No Conflict.
The execution and delivery of this Agreement by such Purchaser and the
performance of his, her or its obligations thereunder will not (i) if such
Purchaser is an entity, violate or conflict with any provision of its
organizational documents, (ii) violate, conflict with, or give rise to any right
of termination, cancellation, or acceleration under any material agreement or
instrument to which such Purchaser is a party, or by which he, it, or any of
his, her or its assets is bound, (iii) result in the imposition of any lien on
any Shares held by such Purchaser, (iv) violate or conflict with any applicable
laws, or (v) require any consent, approval or other action of, notice to, or
filing with any entity or person (governmental or private) other than the filing
of a From 8-K promulgated under the Exchange Act, a Form 3 or a Schedule 13D
promulgated under the Exchange Act.
4.3 Investment Representations and Warranties.
(a) Such Purchaser will acquire the Shares to be purchased by him, her or it
for his, her or its own account, for investment and not with a view to the
distribution thereof, nor with any present intention of distributing the same.
(b) Such Purchaser understands that the Shares to be purchased by him, her
or it: (i) will not be registered under the Securities Act or the securities
laws of any state, by reason of their issuance in a transaction exempt from the
registration or qualification requirements of the Securities Act (defined below)
or such securities laws, the availability of which depends upon, among other
things, the bona fide nature of the investment intent and the accuracy of such
Purchaser's representations as expressed herein, and (ii) must be held
indefinitely unless a subsequent disposition thereof is registered under the
Securities Act or is exempt from registration.
(c) Such Purchaser is an "accredited investor," as defined in Rule 501 (the
provisions of which are known to such Purchaser) promulgated under the United
States Securities Act of 1933, as amended (the \"Securities Act\").
(d) Such Purchaser understands the Company has made no assurance that a
public market for the Shares or any other class or series of Azonic's capital
stock will exist in the future.
(e) Based on such Purchaser's knowledge, experience and skill in evaluating
and investing in securities derived from actual participation in financial,
investment and business matters, such Purchaser is capable of evaluating the
merits and risks of an investment in the Shares and the suitability of the
Shares as an investment for such Purchaser.
(f) Such Purchaser has had an opportunity to discuss the business,
management and financial affairs of Azonic and the terms and conditions of an
investment in the Shares with, and has had access to, the management of the
Company and Azonic.
(g) Such Purchaser is aware that no guarantees have been or can be made
respecting the future value, if any, of the Shares or the profitability or
success of the business of Azonic.
4.4 Brokers and Finders. No person or entity acting on behalf or under the
authority of such Purchaser is or will be entitled to any broker's, finder's, or
similar fee or commission in connection with the transactions contemplated
hereby.
5. Transfer of Shares.
5.1 Restricted Shares. \"Restricted Shares\" means (a) the Shares and (b)
any other shares of capital stock of Azonic issued in respect of such shares (as
a result of stock splits, stock dividends, reclassifications, recapitalizations
or similar events); provided, however, that shares of Common Stock which are
Restricted Shares shall cease to be Restricted Shares (x) upon any sale pursuant
to a registration statement under the Securities Act, Section 4(1) of the
Securities Act or Rule 144 under the Securities Act or (y) at such time as they
become eligible for sale under Rule 144(k) under the Securities Act.
5.2 Requirements for Transfer.
(a) Restricted Shares shall not be sold or transferred unless either (i)
they first shall have been registered under the Securities Act, or (ii) such
sale or transfer is exempt from the registration requirements of the Securities
Act.
5.3 Legend. Each certificate representing Restricted Shares shall bear a
legend substantially in the following form:
"The shares represented by this certificate have not been registered under the
Securities Act of 1933, as amended, and may not be offered, sold or otherwise
transferred, pledged or hypothecated unless and until such shares are registered
under such Act or such registration is not required.\"
The foregoing legend shall be removed from the certificates representing any
Restricted Shares, at the request of the holder thereof, at such time as they
become eligible for resale pursuant to Rule 144(k) under the Securities Act.
6. Miscellaneous.
6.1 Exchange Act Filings; Cooperation; Share Transfer. As soon as
practicable after the Closing, the Company and the Purchasers will, and will
cause Azonic to, make all finings required under the Exchange Act in connection
with the transactions contemplated by this Agreement and shall cooperate with
each other to assist each other in making such filings. The Company shall take
all actions reasonably requested by the Purchasers to confirm the transfer of
the Shares to the Purchasers on the books and records of Azonic.
6.2 Successors and Assigns. This Agreement, and the rights and obligations
of each Purchaser hereunder, may be assigned by such Purchaser to (a) any person
or entity to which Shares are transferred by such Purchaser, or (b) to any to
any affiliate, partner, member, stockholder or subsidiary of such Purchaser,
and, in each case, such transferee shall be deemed a \"Purchaser\" for purposes
of this Agreement; provided that each such assignment of rights shall be
contingent upon the transferee providing a written instrument to the Company
notifying the Company of such transfer and assignment and agreeing in writing to
be bound by the terms of this Agreement. The Company may not assign its rights
under this Agreement.
6.3 Severability. The invalidity or unenforceability of any provision of
this Agreement shall not affect the validity or enforceability of any other
provision of this Agreement.
6.4 Specific Performance. In addition to any and all other remedies that
may be available at law in the event of any breach of this Agreement, each
Purchaser shall be entitled to specific performance of the agreements and
obligations of the Company hereunder and to such other injunctive or other
equitable relief as may be granted by a court of competent jurisdiction.
6.5 Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York (without regard to conflicts
of laws provisions).
6.6 Notices. All notices, requests, consents and other communications under
this Agreement shall be in writing and shall be deemed delivered (a) three
business days after being sent by registered or certified mail, return receipt
requested, postage prepaid or (b) one business day after being sent via a
reputable nationwide overnight courier service guaranteeing next business day
delivery, in each case to the intended recipient as set forth below:
If to the Company, at 0 Xxxxxx, Xxxxx 000, Xxx Xxxx, Xxx Xxxx 00000, Attention:
Xxxxxxx X. Xxxxxxx, Chairman, or at such other address as may have been
furnished in writing by the Company to the other parties hereto, or
If to a Purchaser, at its address set forth on Exhibit A, or at such other
address as may have been furnished in writing by such Purchaser to the other
parties hereto.
Any party may give any notice, request, consent or other communication under
this Agreement using any other means (including, without limitation, personal
delivery, messenger service, telecopy, first class mail or electronic mail), but
no such notice, request, consent or other communication shall be deemed to have
been duly given unless and until it is actually received by the party for whom
it is intended. Any party may change the address to which notices, requests,
consents or other communications hereunder are to be delivered by giving the
other parties notice in the manner set forth in this Section.
6.7 Complete Agreement. This Agreement (including its Exhibits) constitutes
the entire agreement and understanding of the parties hereto with respect to the
subject matter hereof and supersedes all prior agreements and understandings
relating to such subject matter.
6.8 Third Party Beneficiary. Azonic is an intended third party beneficiary
of the Purchasers' representations, warranties and covenants set forth in
Sections 4 and 5 hereof.
6.9 Amendments and Waivers. This Agreement may be amended or terminated and
the observance of any term of this Agreement may be waived with respect to all
parties to this Agreement (either generally or in a particular instance and
either retroactively or prospectively), with the written consent of the Company
and the holders of a majority of the Shares then held by all Purchasers. The
Company shall give prompt written notice of any amendment or termination hereof
or waiver hereunder to any party hereto that did not consent in writing to such
amendment, termination or waiver. Any amendment, termination or waiver effected
in accordance with this Section 6.9 shall be binding on all parties hereto, even
if they do not execute such consent; provided, that any amendment, termination
or waiver of any provision of this Agreement that does not affect all Purchasers
in the same way shall require the prior written consent of all Purchasers who
would be subject to such disparate treatment. No waivers of or exceptions to
any term, condition or provision of this Agreement, in any one or more
instances, shall be deemed to be, or construed as, a further or continuing
waiver of any such term, condition or provision.
6.10 Pronouns. Whenever the context may require, any pronouns used in this
Agreement shall include the corresponding masculine, feminine or neuter forms,
and the singular form of nouns and pronouns shall include the plural, and vice
versa.
6.11 Counterparts; Facsimile Signatures. This Agreement may be executed in
any number of counterparts, each of which shall be deemed to be an original, and
all of which shall constitute one and the same document. This Agreement may be
executed by facsimile signatures.
6.12 Section Headings and References. The section headings are for the
convenience of the parties and in no way alter, modify, amend, limit or restrict
the contractual obligations of the parties. Any reference in this agreement to
a particular section or subsection shall refer to a section or subsection of
this Agreement, unless specified otherwise.
[Remainder of page intentionally left blank]
Executed as of the date first written above.
COMPANY:
INFINITY CAPITAL GROUP, INC.
By:
Name:
Title:
PURCHASERS:
