SECURITIES PURCHASE AGREEMENT
EXHIBIT
10.8
THIS
SECURITIES PURCHASE AGREEMENT is entered into as of August 12, 2008 (the “Agreement”), by and
by and among AFH HOLDINGS I, INC., a Delaware corporation (the “Company”), AFH
Holding & Advisory, LLC (“AFH Advisory”), and each of the undersigned buyers
identified on the signature pages hereto and on Schedule A attached
hereto (collectively, the “Buyers”). Each
party to this Agreement is referred to herein as a “Party,” and they are
all referred to collectively as “Parties.”
W I T N E
S S E T H:
WHEREAS,
prior to the issuance of securities under this Agreement, the Company had a
total of 100,000,000 shares of common stock authorized, of which 4,000,000 were
issued and outstanding, and all of which are held by AFH Advisory;
WHEREAS,
certain Buyers previously invested an aggregate of $870,000 in an entity by the
name of Jiangxi Xxxxx Xx Xin Copper Co., Inc. (the “Yi Xin Investors”), a
Delaware corporation, in contemplation of a business combination involving
Jiangxi Xxxxx Xx Xin Copper Co. in China, and this transaction is being
rescinded in order for the Yi Xin Investors to re-invest these funds into the
Company;
WHEREAS,
the Company and the Buyers desire to enter into this Agreement pursuant to which
the Company will issue a total of 870,000 shares of its common
stock to the Buyers for aggregate consideration of $1.00 per share;
WHEREAS,
as a condition to the consummation of the securities purchase contemplated under
this Agreement, AFH Advisory agrees to have cancelled a total of 2,870,000
shares of common stock held by it, leaving it with a balance of 1,130,000 shares
of common stock for AFH Advisory;
WHEREAS,
it is contemplated that the Company will provide the Buyers with registration
rights pursuant to a registration rights agreement to be entered into
concurrently herewith (“Registration Rights Agreement”);
WHEREAS,
the board of directors of the Company have duly approved the foregoing issuance
of Shares.
NOW,
THEREFORE, in consideration of the premises and of the mutual representations,
warranties and agreements set forth herein, the Parties hereto agree as
follows:
ARTICLE
I
PURCHASE
OF SECURITIES
1.1 Incorporation of
Recitals. The provisions and recitals set forth above are
hereby referred to and incorporated herein and made a part of this Agreement by
reference.
1.2 Purchase of
Shares. Subject to the terms and conditions of this Agreement,
on the Closing Date (as hereinafter defined) the Company shall issue and each of
the Buyers shall purchase such amount of the Shares and for such consideration
set forth opposite such Buyer’s name (the aggregate purchase price referred to
herein as the “Purchase Price”) as
set forth on Schedule
A attached hereto.
1.3 Share
Cancellation. On the Closing Date, AFH Advisory shall deliver
irrevocable instructions to the Company’s transfer agent, together with a share
certificate representing shares of common stock that it holds in the Company,
with a valid stock power assigning 2,870,000 shares of common stock to the
Company for cancellation.
1.4 Closing. The
Closing shall take place on August 12, 2008 (the “Closing Date”), at
the soonest date that all closing conditions set forth herein have been either
satisfied or waived. On the Closing Date:
(a) the
Company shall cause the transfer agent of the Company to reflect the new
issuance of Shares on the stock ledger of the Company;
(b) the
Company shall cause the transfer agent to promptly prepare and deliver to each
of the Buyers, stock certificate(s) evidencing the Shares to be purchased in the
name of the Buyers and/or its designees (the “Share Certificates”)
free and clear of any Encumbrances (defined below);
(1) the
Buyers shall pay (or cause to be paid) to the Company the aggregate Purchase
Price of $870,000 (the “Closing Payment”) for
the purchase of the Shares, such Closing Payment
to be paid at the Closing to the Company by
Jiangxi Xxxxx Xx Xin Copper Co., a Delaware corporation, on behalf of the Yi Xin
Copper Investors.
The foregoing payment shall be made in cash by cashier's check or by wire transfer of immediately available funds to such
account as the Company may specify in writing to Buyers at least one
(1) business day prior to the Closing.
ARTICLE
II
REPRESENTATIONS
AND WARRANTIES OF THE COMPANY
The
Company represents and warrants to Buyer that now and/or as of the
Closing:
2.1 Due Organization and
Qualification; Subsidiaries; Due Authorization.
(a) The
Company is a corporation duly incorporated, validly existing and in good
standing under the laws of its jurisdiction of formation, with full corporate
power and authority to own, lease and operate its respective business and
properties and to carry on its respective business in the places and in the
manner as presently conducted. The Company is in good standing as a
foreign corporation in each jurisdiction in which the properties owned, leased
or operated, or the business conducted, by it requires such qualification except
for any failure, which when taken together with all other failures, is not
likely to have a material adverse effect on the business of the Company, taken
as a whole. For purposes of this Agreement, a
“material adverse effect” means any effect or change that is or would be
materially adverse to the business, operations, assets, condition (financial or
otherwise) or results of operations of the
Company or the Shares or the consummation of the transactions contemplated
hereby.
(b) The
Company does not have, and has never had, any subsidiaries and does not own,
directly or indirectly, any capital stock, equity or interest in any
corporation, firm, partnership, joint venture or other entity.
(c) The
Company has all requisite corporate power and authority to execute and deliver
this Agreement, and to consummate the transactions contemplated hereby and
thereby. The Company has taken all corporate action necessary for the
execution and delivery of this Agreement and the consummation of the
transactions contemplated hereby, and this Agreement constitutes the legal,
valid and binding obligation of the Company, enforceable against the Company in
accordance with its respective terms, except as may be affected by bankruptcy,
insolvency, moratoria or other similar laws affecting the enforcement of
creditors’ rights generally and subject to the qualification that the
availability of equitable remedies is subject to the discretion of the court
before which any proceeding therefore may be brought. This Agreement,
the Actions, and the transactions contemplated hereby have been unanimously
approved by the Board of Directors of the Company and by the holders of a
majority of the outstanding shares of Common Stock of the Company.
2.2 Certificate of
Incorporation
and By-laws; Minute Books. Certified copies of the Company’s
Certificate of Incorporation and its bylaws have been forwarded to the
Buyer. Such copies of the Certificate of Incorporation and Bylaws (or
similar governing documents) of the Company, and all amendments to each are
true, correct and complete. The minute books of the Company as
forwarded to the Buyer contain true and complete records of all meetings and
consents in lieu of meetings of their respective Board of Directors (and any
committees thereof), or similar governing bodies, since the time of their
respective organization. The stock books of the Company as forwarded
to the Buyer are true, correct and complete.
2.3 Consents. No consent or approval of any person,
regulatory authority, governmental organization or third party, and no approval,
order, license, permit, franchise, declaration or filing of any nature, is
required as a result of or in connection
with the Seller’s execution, delivery and performance of its obligations
under this Agreement.
2.4 Capitalization.
(a) Immediately prior to giving effect to the transactions contemplated
hereby, the authorized capital stock of the Company shall consist of
100,000,000 shares of the Company common stock and as of the
date hereof, and 20,000,000 shares
of preferred stock, with 4,000,000 shares
of common stock issued and outstanding, and no shares of preferred stock
issue and outstanding.
(b) Immediately after
giving effect to the transactions contemplated hereby, the authorized
capital stock of the Company shall consist of
100,000,000 shares of the Company common stock and as of the date
hereof, and no shares of preferred stock
issue and outstanding. The
number of shares of common stock issued and outstanding shall be equal to
1,130,000 shares, plus the total number of shares issued to
the Buyers pursuant to this Agreement.
(c) As of the date hereof, there are no shares of Company
preferred stock issued and outstanding.
All of the outstanding shares of Company
Common Stock are duly authorized, validly issued, fully paid and nonassessable,
and have not been issued in violation of any preemptive right of shareholders.
Immediately after the Closing, the Shares
will be duly authorized, validly issued and nonassessable and free and clear of
any Encumbrances and will have been issued and transferred free and clear of any
preemptive right of stockholders. Except
for this Agreement, there are no outstanding subscriptions, voting trust agreement or other contract,
agreement, arrangement, option, warrant, call, commitment or other right of any
character obligating or entitling the Company to issue, sell, redeem or
repurchase any of its securities, and there is no outstanding security of any kind convertible into or
exchangeable for Company Common Stock. To the Company’s knowledge, no
shareholder currently holds registration rights.
2.5 Compliance With
Law. The Company and the
Company’s officers and directors are in compliance with all applicable federal, state, local and
foreign laws and regulations which are applicable to the operation of the
Company’s business. The Company and the
Company’s officers and directors have not received any written
notice to the effect that, or otherwise have been advised that the Company
or its officers or directors are not in compliance with any of such laws or
orders. To the Company’s knowledge, the
Company and its officers and directors are not currently, or have been, the
subject of any inquiries, investigations, or requests for
documents or other information related to its compliance with any laws or
orders. The Company is not, and to the Company’s knowledge has
not been, subject to any regulatory enforcement actions or consent decrees. None of the Company’s officers and
directors have been convicted of a felony or misdemeanor.
2.6 No Conflicts. The execution and delivery by the Company
of this Agreement does not, and the performance by the Company of their
obligations under this Agreement and the
consummation of the transactions contemplated, hereby does not
and will not conflict with or result in a violation or breach of any term or
provision of any law, order, permit, statute, rule or regulation applicable the
Company, any of their affiliates, or any of
the businesses, or assets or properties of the Company.
2.7 Material Misstatements and
Omissions. As of the Closing
Date, the representations and warranties of the Company contained in this
Agreement (including the exhibits and schedules hereto) do not contain any untrue statement of a
material fact and do not omit to state a material fact necessary to make the
statements or facts contained herein or therein, in light of the circumstances
made, not misleading.
ARTICLE
III
REPRESENTATIONS
AND WARRANTIES OF THE BUYERS
Each of
the Buyers hereby severally and independently represents and warrants to the
Company that now and/or as of the Closing:
3.1 Authority Relative to this
Agreement. Such Buyer has the requisite power and/or authority
to enter into this Agreement and carry out his/her obligations
hereunder. This Agreement has been duly and validly executed and
delivered by such Buyer and constitutes a valid and binding obligation of such
Buyer, enforceable in accordance with its terms, except as such enforcement may
be limited by bankruptcy, insolvency or other similar laws affecting the
enforcement of creditors' rights generally or by general principles of
equity.
3.2 Buyer Representation
Regarding the Shares. The Buyer understands that the Shares
are “restricted securities” and have not been registered under the Shares Act or
any applicable state securities law and is acquiring the Shares as principal for
its own account and not with a view to or for distributing or reselling such
Shares or any part thereof, has no present intention of distributing any of such
Shares and has no arrangement or understanding with any other persons regarding
the distribution of such Shares (this representation and warranty not limiting
such Buyer’s right to sell the Shares pursuant to a Registration Statement (as
defined in the Registration Rights Agreement) or otherwise in compliance with
applicable federal and state securities laws). The Buyer is acquiring
the Shares hereunder in the ordinary course of its business. The
Buyer does not have any agreement or understanding, directly or indirectly, with
any Person to distribute any of the Shares.
3.3 Buyer
Status. At the time the Buyer receives any of the Shares, the
Buyer will be an “accredited investor” as defined in Rule 501 under the
Securities Act.
3.4 Experience of the
Buyers. The Buyer, 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 Shares, and has so evaluated the merits and
risks of such investment. The Buyer is able to bear the economic risk
of an investment in the Shares and, at the present time, is able to afford a
complete loss of such investment.
3.5 General
Solicitation. The Buyer is not receiving the Shares as a
result of any advertisement, article, notice or other communication regarding
the Shares 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.
3.6 Material Misstatements of
Omissions. As of the
Closing Date, the representations and
warranties of such Buyer contained in this Agreement (including the exhibits and schedules hereto)
does
not contain any untrue statement of a material fact and do not omit to state a
material fact necessary to make the statements or facts contained herein or
therein, in light of the circumstances made, not misleading.
ARTICLE
IV
INDEMNIFICATION
4.1 By the Company. The Company shall indemnify, defend and
hold harmless each Buyer, its affiliates and their respective officers,
directors, members, shareholders, employees, agents, successors, assigns and
affiliates from and against any and all
costs, Undisclosed Liabilities, liabilities, damages, lawsuits, deficiencies,
claims and expenses, including without limitation, interest, penalties, costs of
mitigation, attorneys’ fees and all amounts paid in investigation,
defense or settlement of any of the foregoing (collectively,
the “Damages”), incurred in
connection with, arising out of, resulting from or incident to any breach of any
covenant, representation, warranty or agreement or the inaccuracy of any
representation, made by the Company in or
pursuant to this Agreement.
4.2 By Buyer. Each
Buyer shall indemnify, reimburse, defend
and hold harmless the Company, its affiliates, officers, directors, employees,
agents, successors and assigns from and against any and all Damages incurred in connection with, arising out of, resulting
from or incident to (i) any breach of any covenant, representation, warranty or
agreement or the inaccuracy of any representation, made by such Buyer in or
pursuant to this Agreement, or in the other
documents delivered in connection with the transaction contemplated in this
Agreement; and (ii) the business, operations, or conduct of the Company after
the Closing; provided, however, that
Damages under this Section 4.2 shall be limited to the amount of the Closing Payment.
4.3 Defense
of Claims. If
any action or proceeding is filed or initiated against any party entitled to the
benefit of indemnity hereunder, written notice thereof shall be given to the
indemnifying party as promptly as practicable (and in any
event within ten (10) days after the service of the citation or summons);
provided, however, that the failure of any indemnified party to give timely
notice shall not affect rights to indemnification hereunder except to the extent
that the indemnifying party
demonstrates actual damage caused by such failure. After such notice,
if the indemnifying party shall acknowledge in writing to the
indemnified party that the indemnifying party shall be obligated under the terms
of its indemnity hereunder in connection
with such action or proceeding, then the indemnifying party shall be entitled,
if it so elects, to take control of the defense and investigation of such action
or proceeding and to employ and engage attorneys of its own choice to handle and
defend the same,
such attorneys to be reasonably satisfactory to the indemnified party, at the
indemnifying party’s cost,
risk and expense (unless (i) the indemnifying party has failed to assume the
defense of such action or proceeding; or (ii) the named parties to such
action or proceeding include both of the indemnifying party and the indemnified
party, and the indemnified party and its counsel determine in good faith that
there may be one or more legal defenses available to such indemnified party that
are different from
or additional to those available to the indemnifying party and that joint
representation would be inappropriate), and to compromise or settle such action
or proceeding, which compromise or settlement shall be made only with the
written consent of the
indemnified party, such consent not to be unreasonably withheld. The
indemnified party may withhold such consent if such compromise or settlement
would adversely affect the conduct of its business or requires less than an
unconditional release to be obtained.
If (i) the indemnifying party fails to assume the defense of such action or
proceeding within fifteen (15) days after receipt of notice thereof pursuant to
this Section 4.3; or (ii) the named parties to such action or proceeding include
both the indemnifying
party and the indemnified party and the indemnified party and its counsel
determine in good faith that there may be one or more legal defenses available
to such indemnified party that are different from or additional to those
available to the indemnifying
party and that joint representation would be inappropriate, the indemnified
party against which such action or proceeding has been filed or initiated will
(upon delivering notice to such effect to the indemnifying party) have the right
to undertake, at
the indemnifying party’s cost
and expense, the defense, compromise or settlement of such action or proceeding
on behalf of and for the account and risk of the indemnifying party; provided,
however, that such action or proceeding shall not be compromised or
settled without the written consent of the indemnifying party, which consent
shall not be unreasonably withheld. In the event the indemnified party assumes
defense of the action or proceeding, the indemnified party will keep the
indemnifying party
reasonably informed of the progress of any such defense, compromise or
settlement and will consult with, when appropriate, and consider any reasonable
advice from, the indemnifying party regarding any such defense, compromise or
settlement. The indemnifying
party shall be liable for any settlement of any action effected pursuant to and
in accordance with this Section 4.3 and for any final judgment (subject to any
right of appeal).
Regardless
of whether the indemnifying party or the indemnified party takes up the
defense, the indemnifying party will pay reasonable costs and expenses in
connection with the defense, compromise or settlement for any action or
proceeding under this Section 4.3.
The indemnified party shall cooperate in all reasonable
respects with the indemnifying party and
such attorneys in the investigation, trial and defense of such action or
proceeding and any appeal arising therefrom; provided, however, that the
indemnified party may, at its own cost, participate in the investigation,
trial
and defense of such action or proceeding and any appeal arising therefrom.
The indemnifying party shall pay all expenses due under
this Section 4.3 as such expenses become due. In the event
such expenses are not so paid, the indemnified party shall be entitled to settle any action or proceeding under this
Section 4.3 without the consent of the indemnifying party and without waiving
any rights the indemnified party may have against the indemnifying
party.
4.4 Other Claims. A claim for indemnification for any matter not involving a third-party claim may be
asserted by notice to the party from whom indemnification is
sought.
ARTICLE
V
DELIVERIES
AND CONDITIONS
5.1 Items to be delivered to the
Buyers at the Closing by the Company. The Buyers’ obligation
to purchase the Shares is conditioned on the following closing conditions and
deliveries:
(a) a
counterpart to this Agreement duly executed by the Company and delivered to each
Buyer (or representative);
(b) a
counterpart to the Registration Rights Agreement duly executed by the Company
and delivered to each Buyer (or representative);
(c) a
copy of a letter of instruction to the Company’s transfer agent, to issue the
Share Certificates in the name of each Buyer representing the Shares (or its
designee or assignee);
(d) the
representations and warranties set forth in Article 2 of this Agreement shall be
true and correct in all material respects; and
(e) an
officer’s certificate of the Company certifying that subparagraph (c) above is
true and correct as of the Closing Date; and
(f) any
other document reasonably requested by Buyer that Buyer deems necessary for the
consummation of this transaction.
5.2 Items to be delivered at
Closing by Buyer. The Company’s obligation to issue and
sell the Shares is conditioned on the following closing conditions and
deliveries by the Buyers:
(a) all
applicable exhibits and schedules hereto;
(b) a
counterpart to this Agreement duly executed by each Buyer and delivered to the
Company;
(c) a
counterpart to the Registration Rights Agreement duly executed by each Buyer and
delivered to the Company;
(d) any
other document reasonably requested by the Company that it deems necessary for
the consummation of this transaction; and
(e) the
Closing Payment.
5.3 Items to be delivered at
Closing by AFH Advisory. The other parties’ obligation
to consummate the transaction under this Agreement is conditioned on the
following closing conditions and deliveries by AFH Advisory:
(a) an
irrevocable instruction letter issued to the Company and its transfer agent
instructing the transfer agent to cancel 2,870,000 shares held by AFH Advisory,
delivered and effective on the Closing Date;
(b) an
original share certificate representing 4,000,000 shares of common stock held by
AFH Advisory delivered to the Company’s transfer agent for cancellation (with a
remainder certificate representing remaining shares to be issued in replacement
therefor); and
(c) an
originally executed and medallion-certified stock power endorsing and assigning
2,870,000 shares of common stock held by AFH Advisory to the Company for
cancellation, delivered to the Company’s transfer agent.
ARTICLE
VI
TERMINATION
6.1 Termination. This
Agreement may be terminated:
(a) at
any time before, or at, Closing by written notice of the Buyers;
(b) prior
to the Closing by any Party at any time if any provision (including, but not
limited to, the representations and warranties) of this Agreement that is
applicable to or required to be performed by the other Party shall be materially
untrue or fail to be accomplished or if any conditions set forth in Article 4
hereof have not been fully satisfied;
(c) Upon
termination of this Agreement for any reason, in accordance with the terms and
conditions set forth in this paragraph, each Party shall bear all costs and
expenses as that Party has incurred.
ARTICLE
VII
MISCELLANEOUS
7.1 Survival of Representations,
Warranties and Agreements. All representations, warranties and
statements made by a Party to in this Agreement or in any document or
certificate delivered pursuant hereto shall survive the Closing
Date. Each of the Parties hereto is executing and carrying out the
provisions of this Agreement in reliance upon the representations, warranties
and covenants and agreements contained in this agreement or at the closing of
the transactions herein provided for and not upon any investigation which it
might have made or any representations, warranty, agreement, promise or
information, written or oral, made by the other Party or any other person other
than as specifically set forth herein.
7.2 Access to Books and
Records. During the course of this transaction through
Closing, each Party agrees to make available for inspection all corporate books,
records and assets, and otherwise afford to each other and their respective
representatives, reasonable access to all documentation and other information
concerning the business, financial and legal conditions of each other for the
purpose of conducting a due diligence investigation thereof. Such due
diligence investigation shall be for the purpose of satisfying each Party as to
the business, financial and legal condition of each other for the purpose of
determining the desirability of consummating the proposed
transaction. The Parties further agree to keep confidential and
not use for their own benefit, except in accordance with this Agreement any
information or documentation obtained in connection with any such
investigation.
7.3 Further
Assurances. If, at any time after the Closing, the Parties
hereby mutually agree that any
further deeds, assignments or assurances in law or that any other things are
necessary, desirable or proper to complete the transactions contemplated hereby
in accordance with the terms of this agreement or to vest, perfect or confirm,
of record or otherwise, the title to any property or rights of the Parties
hereto, the Parties agree that their proper officers and directors shall execute
and deliver all such proper deeds, assignments and assurances in law and do all
things necessary, desirable or proper to vest, perfect or confirm title to such
property or rights and otherwise to carry out the purpose of this Agreement, and
that the proper officers and directors the Parties are fully authorized to take
any and all such action.
7.4 Notice. All
communications, notices, requests, consents or demands given or required under
this Agreement shall be in writing and shall be deemed to have been duly given
when delivered to, or received by prepaid registered or certified mail or
recognized overnight courier addressed to, or upon receipt of a facsimile sent
to, the Party for whom intended, as follows, or to such other address or
facsimile number as may be furnished by that Party by notice in the manner
provided herein:
If to the
Company:
Xxxxx
Xxxxx, Esq.
Xxxxxxxxxx
& Xxxxx LLP
00000
Xxxxxxxx Xxxx. Xxxxx 000
Xxx
Xxxxxxx, XX 00000
Facsimile: (000)
000-0000
If to Buyer:
To the
address and/or fax number set forth on the
signature
pages hereto, as to each Buyer
7.5 Entire
Agreement. This Agreement, the Exhibits and Schedules hereto
and any instruments and agreements to be executed pursuant to this Agreement,
set forth the entire understanding of the Parties hereto with respect to its
subject matter, merges and supersedes all prior and contemporaneous
understandings with respect to its subject matter and may not be waived or
modified, in whole or in part, except by a writing signed by each of the Parties
hereto. No waiver of any provision of this Agreement in any instance
shall be deemed to be a waiver of the same or any other provision in any other
instance. Failure of any party to enforce any provision of this
Agreement shall not be construed as a waiver of its rights under such
provision.
7.6 Successors and
Assigns. This Agreement shall be binding upon, enforceable
against and inure to the benefit of, the Parties hereto and their respective
heirs, administrators, executors, personal representatives, successors and
assigns, and nothing herein is intended to confer any right, remedy or benefit
upon any other person. This Agreement may not be assigned by the
Corporation except with the prior written consent of the Buyer. This
Agreement and all of the obligations of the Company may be assigned by the Buyer
without the prior notice to the Company or written consent of the Company and
upon assignment, all of the rights and obligations of Buyer shall be the rights
and obligations of the Buyer’s designated assignee.
7.7 Governing
Law. This Agreement shall in all respects be governed by and
construed in accordance with the laws of the State of California, USA that are
applicable to agreements made and fully to be performed in such state, without
giving effect to conflicts of law principles.
7.8 Counterparts. This
Agreement may be executed in multiple counterparts, each of which shall be
deemed an original, but all of which together shall constitute one and the same
instrument.
Securities
Purchase Agreement
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7.9 Construction. Headings
contained in this Agreement are for convenience only and shall not be used in
the interpretation of this Agreement. References herein to Articles,
Sections and Exhibits are to the articles, sections and exhibits, respectively,
of this Agreement. The Schedules hereto are hereby incorporated
herein by reference and made a part of this Agreement. As used
herein, the singular includes the plural, and the masculine, feminine and
neuter gender each includes the others where the context so
indicates.
7.10 Severability. If
any provision of this Agreement is held to be invalid or unenforceable by a
court of competent jurisdiction, this Agreement shall be interpreted and
enforceable as if such provision were severed or limited, but only to the extent
necessary to render such provision and this Agreement enforceable.
7.11 Arbitration. Any
controversy arising out of, connected to, or relating to any matters herein of
the transactions with the Parties hereto on behalf of the undersigned, or this
Agreement, or the breach thereof, including, but not limited to any claims of
violations of federal and/or state securities laws, banking statutes, consumer
protection statutes, federal and/or state anti-racketeering (e.g. RICO) claims
as well as any common law claims and any state law claims of fraud, negligence,
negligent misrepresentations, and/or conversion, or the laws of any territory,
country or jurisdiction, shall be settled by arbitration; and in accordance
with this paragraph any judgment on the arbitrator’s award may be entered in any
court having jurisdiction thereof. In the event of such a dispute,
each party agrees to arbitration conducted through the auspices of American
Arbitration Association. Venue for any action shall be in Los
Angeles, California.
7.12 Confidentiality; Public
Disclosure. Each of the parties hereto hereby agrees that the
information obtained pursuant to the negotiation and execution of this Agreement
shall be treated as confidential and not be disclosed to third parties who are
not agents of one of the Parties to this Agreement.
7.13 Notification of Certain
Matters. Each Party shall give prompt notice to the other of
(i) the occurrence or non-occurrence of any event, the occurrence or
non-occurrence of which is likely to cause any representation or warranty of
such party contained in this Agreement to be untrue or inaccurate and (ii) any
failure of such party to comply with or satisfy any covenant, condition or
agreement to be complied with or satisfied by it hereunder; provided, however, that the
delivery of any notice pursuant to this Section shall not limit or
otherwise affect any remedies available to the party receiving such
notice. Further, disclosure pursuant to this Section shall not
be deemed to amend or supplement the Schedules hereto or prevent or cure
any misrepresentations, breach of warranty or breach of covenant.
7.14 Currency. The
parties hereto agree that all monetary amounts set forth herein are referenced
in United States dollars, unless otherwise stated.
7.15 Rules of Construction.
The parties hereto agree that they have been represented by counsel
during the negotiation and execution of this Agreement and, therefore, waive the
application of any law, regulation, holding or rule of construction providing
that ambiguities in an agreement or other document will be construed against the
party drafting such agreement or document.
7.16 Counterparts. This
Agreement may be executed in counterparts and by facsimile
signatures. 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. All such counterparts shall together constitute one and the
same instrument.
[Signatures to
Follow]
Securities
Purchase Agreement
-10-
IN
WITNESS WHEREOF, each of the Parties hereto has executed this Securities
Purchase Agreement as of the date first set forth above.
COMPANY:
a
Delaware corporation
By: /s/ Xxxx Xxxxxxxxxxx
Xxxx
Xxxxxxxxxxx
Chief Executive Officer
AFH
ADVISORY: AFH
HOLDING & ADVISORY, LLC
/s/
Xxxx Xxxxxxxxxxx
Xxxx
Xxxxxxxxxxx
Managing Director
BUYERS:
/s/ [See Attached
Schedule of Buyers]
Signature
___________________________________
Name of Shareholder
___________________________________
Authorized Representative
___________________________________
Title
Address:
____________________________
___________________________________
Fax: (______) _______________________
Securities
Purchase Agreement
-11-
SCHEDULE
A
BUYERS
|
Name of Buyer
|
Consideration
|
Shares
of Common Stock Purchased
|
|
Armitagd,
Xxxxxxx, S. Sr.
|
$25,000.00
|
25,000
|
|
Xxxxxxxxx,
Xxxxxx
|
$25,000.00
|
25,000
|
|
Baron
Crest Energy Company
|
$20,000.00
|
20,000
|
|
Xxxxxxxx,
Xxxxxx
|
$50,000.00
|
50,000
|
|
Xxxxxxxxxx,
Xxxxx X.
|
$15,000.00
|
15,000
|
|
Xxxxxxx,
Xxx
|
$5,000.00
|
5,000
|
|
Xxxxxx,
Xxxxx X.
|
$7,000.00
|
7,000
|
|
Xxxx,
Xxxxx
|
$25,000.00
|
25,000
|
|
Xxxx,
Xxxx X. Revocable Trust
|
$25,000.00
|
25,000
|
|
Dent,
Tagra Shanoff
|
$5,000.00
|
5,000
|
|
Xxxxx,
Xxxxxx X.
|
$5,000.00
|
5,000
|
|
Erasmus,
Udo (Designing Health, Inc.)
|
$5,000.00
|
5,000
|
|
Xxxxxxx,
Xxx
|
$90,500.00
|
90,500
|
|
Fiduciary
Warranty Ins, Ltd.
|
$75,000.00
|
75,000
|
|
Xxxxxx
Energy, LP
|
$125,000.00
|
125,000
|
|
Xxxxxx,
Xxxxxxx
|
$5,000.00
|
5,000
|
|
Xxxxxx,
Xxxxxxxxx
|
$5,000.00
|
5,000
|
|
Xxxxxx,
Xxxxx
|
$5,000.00
|
5,000
|
|
Xxxxxxx,
Xxxxxxx X.
|
$10,000.00
|
10,000
|
|
Xxxxxxxxxx,
Xxxx
|
$5,000.00
|
5,000
|
|
Xxxxxx,
Xxxxx X.
|
$7,500.00
|
7,500
|
|
Xxxxxxx
& Xxxxxxx, Inc.
|
$25,000.00
|
25,000
|
|
Xxxxxx,
Xxxxxx X.
|
$10,000.00
|
10,000
|
|
Xxxxxx,
Xxx X.
|
$5,000.00
|
5,000
|
|
Xxxxxxxx,
Xxxxxxx
|
$15,000.00
|
15,000
|
|
Xxxxxxxx,
Xxx
|
$5,000.00
|
5,000
|
|
Xxxxxxxx,
Xxxxxx X.
|
$20,000.00
|
20,000
|
|
Xxxxxxxx,
Xxxx
|
$10,000.00
|
10,000
|
|
Xxxxxxx,
Xxxx X.
|
$10,000.00
|
10,000
|
|
Xxxxx,
Xxxxx
|
$60,000.00
|
60,000
|
|
Xxxxxxxxx,
Xxxxx
|
$25,000.00
|
25,000
|
|
Xxxxxxxxx,
Xxxxxxx, J.
|
$25,000.00
|
25,000
|
|
Xxxxxxx,
Xxxx
|
$5,000.00
|
5,000
|
|
Xxxxxx,
Xxxxxxx
|
$5,000.00
|
5,000
|
|
Xxxxxxxxx,
Xxxx X.
|
$5,000.00
|
5,000
|
|
The
Chamales Foundation
|
$50,000.00
|
50,000
|
|
Xxxxx,
Xxx Xx.
|
$5,000.00
|
5,000
|
|
Xxxxx,
Xxxxxxxx X.
|
$10,000.00
|
10,000
|
|
Xxxxxxx,
Xxxx
|
$5,000.00
|
5,000
|
|
Xxxxxxxx,
Xxxxx, B.
|
$25,000.00
|
25,000
|
|
Xxxxxx,
Xxx
|
$10,000.00
|
10,000
|
|
$870,000.00
|
870,000
|
|
000160/09953
BFLODOCS 2383765v1
|
Securities
Purchase Agreement
-12-
