SECURITIES PURCHASE AGREEMENT
This Securities Purchase Agreement is dated as of September 16, 2005 by
and between AMRES Holding, LLC, a Nevada limited liability company ("PURCHASER")
and Xxxxx and Xxxxx Xxxxx, each an individual (collectively referred to as
"SELLER").
WITNESSETH
WHEREAS, SELLER desires to sell warrants to acquire Two Million
(2,000,000) shares (the "Warrants") of common stock of Anza Capital, Inc., a
Nevada corporation ("Anza"), a copy of which is attached hereto as Exhibit A, to
PURCHASER on the terms and conditions set forth in this Securities Purchase
Agreement (hereinafter called "Agreement"); and
WHEREAS, PURCHASER desires to buy the Warrants on the terms and conditions
set forth herein;
NOW THEREFORE, in consideration of the promises and respective mutual
agreements herein contained, it is agreed by and between the parties hereto as
follows:
ARTICLE 1
SALE AND PURCHASE OF THE WARRANTS
1.1 Sale of the Warrants. At the closing (the "Closing"), which shall
occur on October 25, 2005 (the "Closing Date"), subject to the terms and
conditions herein set forth, and on the basis of the representations, warranties
and agreements herein contained, SELLER shall sell to PURCHASER, and PURCHASER
shall purchase from SELLER, the Warrants.
1.2 Instruments of Conveyance and Transfer. At the Closing, SELLER shall
deliver to PURCHASER the Warrants and an Assignment of Warrants (the
"Assignment"), a copy of which is attached hereto as Exhibit B, in form and
substance satisfactory to PURCHASER as shall be effective to vest in PURCHASER
all right, title and interest in and to all of the Warrants, as set forth in
Article 3 herein.
1.3 Consideration and Payment for the Warrants. As consideration for the
Warrants, PURCHASER shall pay the total purchase price of $10,000 (the "Purchase
Price").
ARTICLE 2
REPRESENTATIONS AND COVENANTS OF SELLER AND PURCHASER
2.1 The SELLER hereby represents and warrants that:
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(a) SELLER has title in and to the Warrants free and clear of all
liens, security interests, pledges, encumbrances, charges, restrictions,
demands and claims, of any kind and nature whatsoever.
(b) SELLER shall transfer title, in and to the Warrants, to
PURCHASER free and clear of all liens, security interests, pledges,
encumbrances, charges, restrictions, demands and claims, of any kind and
nature whatsoever, whether direct or indirect or contingent.
(c) SELLER has the full right, power and authority to enter into
this Agreement and to carry out and consummate the transaction
contemplated herein. This Agreement constitutes the legal, valid and
binding obligation of SELLER.
2.2. The PURCHASER hereby represents and warrants that:
(a) The PURCHASER has the full right, power and authority to enter
into this Agreement and to carry out and consummate the transaction
contemplated herein. This Agreement constitutes the legal, valid and
binding obligation of PURCHASER.
(b) The PURCHASER acknowledges that investment in the Warrants
involves substantial risks and is suitable only for persons of adequate
financial means who can bear the economic risk of an investment in the
Warrants for an indefinite period of time. PURCHASER further represents
that it:
(1) has adequate means of providing for its current
needs and possible personal contingencies, has no need for
liquidity in its investment in the Warrants, is able to bear
the substantial economic risks of an investment in the
Warrants for an indefinite period, and, at the present time,
can afford a complete loss of its investment;
(2) does not have an overall commitment to investments
which are not readily marketable that is disproportionate to
its net worth, and that its investment in the Warrants will
not cause such overall commitment to become excessive;
(3) has such knowledge and experience in financial, tax
and business matters that it is capable of evaluating the
merits and risks of an investment in the Warrants;
(4) has been given the opportunity to ask questions of
and to receive answers from persons acting on Anza's behalf
concerning the terms and conditions of this transaction and
also has been given the opportunity to obtain any additional
information which SELLER possesses or can acquire without
unreasonable effort or expense. As a result, PURCHASER is
cognizant of the financial condition, capitalization, and the
operations of Anza, has available full information concerning
their affairs and has been able to evaluate the merits and
risks of the investment in the Warrants.
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(c) If, in the opinion of counsel for Anza, the PURCHASER has acted
in a manner inconsistent with the representations and warranties in this
Securities Purchase Agreement, SELLER may refuse to transfer the Warrants
until such time as counsel for Anza is of the opinion that such transfer
will not require registration of the Securities under the Act or
qualification of the Securities under applicable blue sky law or any other
securities law. The PURCHASER understands and agrees that Anza may refuse
to acknowledge or permit any disposition of the Securities that is not in
all respects in compliance with this Securities Purchase Agreement and
that Anza intends to make an appropriate notation in its records to that
effect.
(d) If the PURCHASER is an individual, the PURCHASER is over 21
years of age; and if the PURCHASER is an unincorporated association, all
of its members are of such age.
2.3 The PURCHASER further represents and warrants its understanding that
the investment in the Warrants is highly speculative, PURCHASER is able to bear
the economic risk of such investment. PURCHASER is an "Accredited Investor"
because PURCHASER either:
(i) has a net worth of at least $1,000,000 (including home and
personal property), OR
(ii) had an individual income of more than $200,000 in each of the
two most recent calendar years, and reasonably expects to have an
individual income in excess of $200,000 in the current calendar year; or
along with Purchaser's spouse had joint income in excess of $300,000 in
each of the two most recent calendar years, and reasonably expects to have
a joint income in excess of $300,000 in the current calendar year.
For purposes of this Securities Purchase Agreement, "individual income"
means "adjusted gross income" as reported for Federal income tax purposes,
exclusive of any income attributable to a spouse or to property owned by a
spouse: (i) the amount of any interest income received which is tax-exempt under
Section 103 of the Internal Revenue Code of 1986, as amended, (the "Code"), (ii)
the amount of losses claimed as a limited partner in a limited partnership (as
reported on Schedule E of form 1040), (iii) any deduction claimed for depletion
under Section 611 et seq. of the Code and (iv) any amount by which income from
long-term capital gains has been reduced in arriving at adjusted gross income
pursuant to the provisions of Sections 1202 of the Internal Revenue Code as it
was in effect prior to enactment of the Tax Reform Act of 1986.
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For purposes of this Securities Purchase Agreement, "joint income" means,
"adjusted gross income," as reported for Federal income tax purposes, including
any income attributable to a spouse or to property owned by a spouse, and
increased by the following amounts: (i) the amount of any interest income
received which is tax-exempt under Section 103 of the Internal Revenue Code of
1986, as amended (the "Code"), (ii) the amount of losses claimed as a limited
partner in a limited partnership (as reported on Schedule E of Form 1040), (iii)
any deduction claimed for depletion under Section 611 et seq. of the Code and
(iv) any amount by which income from long-term capital gains has been reduced in
arriving at adjusted gross income pursuant to the provisions of Section 1202 of
the Internal Revenue Code as it was in effect prior to enactment of the Tax
Reform Act of 1986.
For the purposes of the Securities Purchase Agreement, "net worth" means
(except as otherwise specifically defined) the excess of total assets at fair
market value, including home and personal property, over total liabilities,
including mortgages and income taxes on unrealized appreciation of assets.
ARTICLE 3
CLOSING AND DELIVERY OF DOCUMENTS
3.1 Closing. The Closing shall occur immediately upon receipt by the
SELLER of the Purchase Price and the receipt by PURCHASER of the Assignment and
the Warrants. The Closing shall occur on the Closing Date.
3.2 Conditional Closing. The Closing shall be subject to the closing of
the transaction contemplated by that certain Common Stock Purchase Agreement
dated September 15, 2005, by and between Xxxxxxxx, PURCHASER, Viking Investments
USA, Inc., a Delaware corporation ("Viking") and Anza.
ARTICLE 4
TERMINATION, AMENDMENT AND WAIVER
4.1 Termination. Notwithstanding anything to the contrary contained in
this Agreement, this Agreement may be terminated and the transactions
contemplated hereby may be abandoned only by the mutual consent of all of the
parties. Following the Closing Date, this Agreement may be terminated by either
party upon delivery of written notice to the other party.
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4.2 Waiver and Amendment. The failure or delay of any party at any time or
times to require performance of any provision hereof or to exercise its rights
with respect to any provision hereof shall in no manner operate as a waiver of
or affect such party's right at a later time to enforce the same. No waiver by
any party of any condition, or of the breach of any term, provision, covenant,
representation or warranty contained in this Agreement, in any one or more
instances, shall be deemed to be or construed as a further or continuing waiver
of any such condition or breach or waiver of any other condition or of the
breach of any other term, provision, covenant, representation or warranty. No
modification or amendment of this Agreement shall be valid and binding unless it
be in writing and signed by all parties hereto.
ARTICLE 5
MISCELLANEOUS
5.1 Entire Agreement. This Agreement sets forth the entire agreement and
understanding of the parties hereto with respect to the transactions
contemplated hereby, and supersedes all prior agreements, arrangements and
understandings related to the subject matter hereof. No understanding, promise,
inducement, statement of intention, representation, warranty, covenant or
condition, written or oral, express or implied, whether by statute or otherwise,
has been made by any party hereto which is not embodied in this Agreement or the
written statements, certificates, or other documents delivered pursuant hereto
or in connection with the transactions contemplated hereby, and no party hereto
shall be bound by or liable for any alleged understanding, promise, inducement,
statement, representation, warranty, covenant or condition not so set forth.
5.2 Notices. All notices provided for in this Agreement shall be in
writing signed by the party giving such notice, and delivered personally or sent
by overnight courier or messenger or by facsimile transmission. Notices shall be
deemed to have been received on the date of personal delivery or facsimile
transmission. Notices shall be sent to the addresses set forth below:
If to SELLER:
Xxxxx and Xxxxx Xxxxx
33 Xxxxxx'x Xxxxx Xxxx
Xxxxxxxxxx XX00 0XX
Xxxxxxxx XX
Phone 000 00 0000 000 000
If to PURCHASER:
AMRES Holding, LLC
0000 Xxxxxxx Xxxxxx, Xxxxx 000
Xxxxx Xxxx, XX 00000
Attn: Xxxxxxx Xxxxxxxx, Managing Member
Facsimile (000) 000-0000
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5.3 Arbitration. If a dispute or claim shall arise between the parties
with respect to any of the terms or provisions of this Agreement, or with
respect to the performance by any of the parties under this Agreement, then the
parties agree that the dispute shall be arbitrated in Orange County, California,
before a single arbitrator, in accordance with the rules of either the American
Arbitration Association ("AAA") or Judicial Arbitration and Mediation Services,
Inc./Endispute ("JAMS/Endispute"). The selection between AAA and JAMS/Endispute
rules shall be made by the claimant first demanding arbitration. The arbitrator
shall have no power to alter or modify any express provisions of this Agreement
or to render any award that by its terms affects any such alteration or
modification. The parties to the arbitration may agree in writing to use
different rules and/or arbitrator(s). In all other respects, the arbitration
shall be conducted in accordance with Part III, Title 9 of the California Code
of Civil Procedure. The parties agree that the judgment award rendered by the
arbitrator shall be considered binding and may be entered in any court having
jurisdiction as stated in Section 5.5 of this Agreement. Alternatively, the
Parties agree to consider mediation prior to arbitration should a dispute arise.
The provisions of this Paragraph shall survive the termination of this
Agreement.
5.4 Governing Law. This Agreement and the rights of the parties hereunder
shall be governed by and construed in accordance with the laws of the State of
California including all matters of construction, validity, performance, and
enforcement and without giving effect to the principles of conflict of laws.
5.5 Venue. The parties submit to the jurisdiction of the Courts of the
State of California or a Federal Court empanelled in the State of California,
County of Orange, for the resolution of all legal disputes arising under the
terms of this Agreement, including, but not limited to, enforcement of any
arbitration award.
5.6 Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which shall
together constitute one and the same instrument.
5.7 Expenses and Attorneys' Fees. Except as otherwise provided herein, if
a dispute should arise between the parties including, but not limited to
arbitration, the prevailing party shall be reimbursed by the nonprevailing party
for all reasonable expenses incurred in resolving such dispute, including
reasonable attorneys' fees exclusive of such amount of attorneys' fees as shall
be a premium for result or for risk of loss under a contingency fee arrangement.
5.8 Taxes. Any income taxes required to be paid in connection with the
payments due hereunder, shall be borne by the party required to make such
payment. Any withholding taxes in the nature of a tax on income shall be
deducted from payments due, and the party required to withhold such tax shall
furnish to the party receiving such payment all documentation necessary to prove
the proper amount to withhold of such taxes and to prove payment to the tax
authority of such required withholding.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement, as of
the date first written hereinabove.
"PURCHASER" "SELLER"
AMRES Holding, LLC
a Nevada limited liability company
By: /s/ By: /s/
----------------------------------- -------------------------------------
By: Xxxxxxx Xxxxxxxx Xxxxx Xxxxx
Its: Managing Member
By: /s/
-------------------------------------
Xxxxx Xxxxx
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EXHIBIT A
WARRANTS
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EXHIBIT B
ASSIGNMENT OF WARRANTS
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