Exhibit 10.28
SECURITIES PURCHASE AGREEMENT, dated as of February 27, 2003,
among the PURCHASERS named in, and residing at the locations set forth in below
their respective names on the signature pages hereto (the "Purchasers"); TITAN
PCB EAST, INC., a Delaware corporation and a wholly-owned subsidiary of Company
with offices at 0000 Xxxxxx Xxxxxx, Xxxxx Xxxxx, Xxxxxxxxxx 00000-0000 (the
"Company"); and VENTURES-NATIONAL INCORPORATED, a Utah corporation with offices
at 0000 Xxxxxx Xxxxxx, Xxxxx Xxxxx, Xxxxxxxxxx 00000-0000 (the "Guarantor").
INTRODUCTION
The Purchasers desire to acquire from the Company, and the
Company desires to issue and sell to the Purchasers, (i) a promissory note in
the aggregate principal amount of $640,000, in the form attached hereto as
Exhibit A, issued in the name of Personal Resources Management, Inc., as agent
(the "Purchasers' Agent") for the Purchasers (the "Note"), and (ii) an aggregate
of 320,000 shares of common stock, par value $0.001 per share, of VNI (the
"Shares" and together with the Note, the "Securities"), as hereinafter provided,
and the Purchasers desire to purchase the Securities.
NOW THEREFORE, in consideration of respective covenants,
promises, and obligations contained herein, the parties hereto hereby agree as
follows:
I. REPRESENTATIONS AND WARRANTIES OF THE PURCHASERS
Section 1.01 Suitable Investment. With respect to individual or partnership tax
and other economic considerations involved in this investment, such Purchaser is
not relying on the Company. Such Purchaser has carefully considered and has, to
the extent the undersigned believes such discussion necessary, discussed with
the undersigned's professional legal, tax, accounting, and financial advisors
the suitability of an investment in the Securities for the undersigned's
particular tax and financial situation and has determined that the Securities
being purchased by such Purchaser are a suitable investment for such Purchaser.
Such Purchaser and/or such Purchaser's adviser(s) has/have had a reasonable
opportunity to ask questions of, and receive answers from, a person or persons
acting on behalf of the Company concerning the Offering and all such questions
have been answered to the full satisfaction of the undersigned. Such Purchaser
recognizes that investment in the Securities involves substantial risks,
including loss of the entire amount of such investment. Further, such Purchaser
has carefully read and considered the matters set forth in VNI's public filings
made with the Securities and Exchange Commission, and has taken full cognizance
of, and understands all of, the risks related to the business and operations of
VNI.
Section 1.02 Investment Intent; Authority. Such Purchaser is acquiring an
interest in the Note and the Shares for investment for such Purchaser's own
account, and not as nominee or agent for investment and not with a view to or
for resale in connection with any distribution or public offering thereof within
the meaning of the Securities Act. Such Purchaser has not offered or sold any
portion of the Securities being acquired nor does such Purchaser have any
present intention of dividing such Securities with others or of selling,
distributing, or otherwise disposing of any portion of such Securities either
currently or after the passage of a fixed or determinable period of time or upon
the occurrence or non-occurrence of any predetermined event or circumstance in
violation of the Securities Act. The Company has no obligation to register the
Securities. Such Purchaser has the full right, power, authority and capacity to
enter into and perform this Agreement and this Agreement will constitute a valid
and binding obligation of such Purchaser.
Section 1.03 Securities Not Registered. Such Purchaser understands and
acknowledges that neither the Note nor the Shares will be registered under the
Securities Act or qualified under any state securities laws in reliance upon one
or more exemptions from registration or qualification under the Securities Act
of 1933, as amended (the "Securities Act") and such state securities laws, and
that the Company's reliance upon such exemption is predicated upon the
Purchaser's representations set forth in this Agreement. The Purchaser
understands and acknowledges that resale of the Note and the Shares may be
restricted indefinitely unless they are subsequently registered under the
Securities Act and qualified under state law or an exemption from such
registration and such qualification is available.
Section 1.04 No Transfer. Such Purchaser will not dispose of its interest in the
Note or the Shares other than in conjunction with an effective registration
statement or exemption from registration under the Securities Act and other than
in compliance with the applicable state securities laws.
Section 1.05 Accredited Investor. Such Purchaser is an "accredited investor"
within the meaning of Securities and Exchange Commission ("SEC") Rule 501 of
Regulation D, as presently in effect. Such Purchaser acknowledges that such
Purchaser has been given access to the kind of financial and other information
about the Company as would be contained in a registration statement filed under
the Securities Act.
Section 1.06 Disclosure Materials. Such Purchaser acknowledges that all
documents, records, and books pertaining to this investment which the
undersigned has requested have been made available for inspection by the
undersigned, the undersigned's attorney, accountant, or adviser(s).
Section 1.07 Restrictive Legend. Such Purchaser acknowledges that the Note and
the certificates representing the Shares shall be stamped or otherwise imprinted
with a legend substantially in the following form and that the Company may issue
stop transfer instructions to the transfer agent of such securities:
"THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER UNITED STATES
FEDERAL OR STATE SECURITIES LAWS AND MAY NOT BE OFFERED FOR SALE, SOLD, OR
OTHERWISE DISPOSED OF OR ASSIGNED FOR VALUE, DIRECTLY OR INDIRECTLY, NOR MAY THE
SECURITIES BE TRANSFERRED ON THE BOOKS OF THE CORPORATION, WITHOUT REGISTRATION
OF SUCH SECURITIES UNDER ALL APPLICABLE UNITED STATES FEDERAL AND STATE
SECURITIES LAWS OR COMPLIANCE WITH AN APPLICABLE EXEMPTION THEREFROM, SUCH
COMPLIANCE AT THE OPTION OF THE CORPORATION, TO BE EVIDENCED BY AN OPINION OF
STOCKHOLDER'S COUNSEL, IN FORM AND SUBSTANCE ACCEPTABLE TO THE CORPORATION, THAT
NO VIOLATION OF SUCH REGISTRATION PROVISIONS WOULD RESULT FROM ANY PROPOSED
TRANSFER OR ASSIGNMENT."
II. REPRESENTATIONS AND WARRANTIES OF THE COMPANY AND VNI
The Company and VNI each represents and warrants to the Purchasers as
follows:
Section 2.01 Organization and Qualification.
Each of Company and VNI is a corporation duly organized,
validly existing, and in good standing under the laws of its respective
jurisdiction of incorporation, with all requisite power and authority, and all
necessary consents, authorizations, approvals, orders, licenses, certificates,
and permits of and from, and declarations and filings with, all federal, state,
local, and other governmental authorities and all courts and other tribunals, to
own, lease, license, and use its respective properties and assets and to carry
on the respective business in which it is now engaged and the respective
business in which it contemplates engaging. Each of Company and VNI is duly
qualified to transact the respective business in which it is engaged and is in
good standing as a foreign corporation in every jurisdiction in which its
ownership, leasing, licensing, or use of property or assets or the conduct of
its business makes such qualification necessary.
Section 2.02 Authority to Sell.
The Company has all requisite corporate power and authority to
execute, deliver, and perform this Agreement; and VNI has all requisite
corporate power and authority to execute, deliver, and perform this Agreement.
All necessary corporate proceedings of the Company have been duly taken to
authorize the execution, delivery, and performance of this Agreement and all
necessary corporate proceedings of VNI have been duly taken to authorize the
execution, delivery, and performance of this Agreement. This Agreement has been
duly authorized, executed, and delivered by Company, is the legal, valid, and
binding obligation of Company, and is enforceable as to Company in accordance
with its respective terms. This Agreement has been duly authorized, executed,
and delivered by VNI, is the legal, valid, and binding obligation of Company,
and is enforceable as to VNI in accordance with its respective terms.
Section 2.03 Validity of Shares.
The Shares, when issued in accordance with the terms and
provisions of this Agreement, will be validly authorized and issued, fully paid,
and nonassessable.
III. PURCHASE AND SALE OF NOTE AND SHARES.
Section 3.01 Purchase and Sale. On the basis of the representations, warranties,
covenants, and agreements contained in this Agreement and subject to the terms
and conditions of this Agreement:
(a) The Company agrees to sell and deliver to the Purchasers'
Agent, on behalf of the Purchasers, and the Purchasers agree to purchase from
the Company, (i) the Note and (ii) the Shares, which Shares shall be represented
by share certificates registered in the name of each Purchaser in the amount set
forth below each Purchaser's name on the signature pages hereto.
(b) In consideration for the Securities, at the Closing,
Purchasers' Agent shall deliver to the Company by delivery of a check or checks
made out to Reitler Xxxxx LLC Escrow Account f/b/o Titan PCB East, Inc., Six
Hundred and Forty Thousand Dollars ($640,000) (the "Purchase Price").
Section 3.02 The Closing.
The closing of the transactions contemplated by Section 3.01
shall take place at the offices of Reitler Xxxxx LLC, 000 Xxxxx Xxxxxx, 00xx
Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, at 9:00 a.m., local time, on February 25, 2003.
The closing may occur at such different place, such different time, or such
different date or a combination thereof as VNI, the Company and the Purchasers
agree in writing. The closing of the transactions contemplated by Sections 3.01
is herein called the "Closing." If the Closing shall not take place by the close
of business on such date, then the parties not at fault shall, in addition to
all other rights and remedies available at law or in equity against the
defaulting parties, have the right to cancel and terminate this Agreement.
Section 3.03 Indemnity Against Liabilities.
Each Purchaser agrees to indemnify and hold harmless the
Company, VNI and their respective officers, directors, employees, counsel,
agents, and stockholders, in each case past, present, or as they may exist at
any time after the date of this Agreement, and each person, if any, who
controls, controlled, or will control any of them within the meaning of Section
15 of the Securities Act or Section 20(a) of the Securities Exchange Act of
1934, as amended (the "Exchange Act") (the "Indemnities"), against any and all
losses, liabilities, damages, and expenses whatsoever (which shall include
counsel fees and any and all expenses whatsoever incurred in investigating,
preparing, or defending against any litigation, commenced or threatened, or any
claim whatsoever, and any and all amounts paid in settlement of any claim or
litigation) as and when incurred arising out of, based upon, or in connection
with (a) any breach of any representation, warranty, covenant, or agreement of
such Purchaser contained in this Agreement, and (b), if the Closing takes place,
any act, alleged act, omission, or alleged omission occurring at or prior to the
Closing (including without limitation any which arise out of, are based upon, or
are in connection with any of the transactions contemplated hereby).
IV. MISCELLANEOUS
Section 4.01 Further Actions.
At any time and from time to time, each party agrees, at its
or his expense, to take such actions and to execute and deliver such documents
as may be reasonably necessary to effectuate the purposes of this Agreement.
Section 4.02 Availability of Equitable Remedies.
Since a breach of the provisions of this Agreement could not
adequately be compensated by money damages, any party shall be entitled, either
before or after the Closing, in addition to any other right or remedy available
to it, to an injunction restraining such breach or a threatened breach and to
specific performance of any such provision of this Agreement, and in either case
no bond or other security shall be required in connection therewith, and the
parties hereby consent to the issuance of such an injunction and to the ordering
of specific performance.
Section 4.03 Survival.
The covenants, agreements, representations, and warranties
contained in or made pursuant to this Agreement shall survive the Closing and
any delivery of shares of Company Common Stock by the Company or VNI,
irrespective of any investigation made by or on behalf of any party.
Section 4.04 Modification.
This Agreement and the Exhibits hereto set forth the entire
understanding of the parties with respect to the subject matter hereof,
supersede all existing agreements among them concerning such subject matter, and
may be modified only by a written instrument duly executed by each party with
the approval of the Board of Directors of each corporate party.
Section 4.05 Notices.
Any notice or other communication required or permitted to be
given hereunder shall be in writing and shall be mailed by certified mail,
return receipt requested (or by the most nearly comparable method if mailed from
or to a location outside of the United States) or by Federal Express, Express
Mail, or similar overnight delivery or courier service or delivered (in person
or by telecopy, telex, or similar telecommunications equipment) against receipt
to the party to whom it is to be given at the address of such party set forth on
the signature pages hereto (or to such other address as the party shall have
furnished in writing in accordance with the provisions of this Section 4.05)
with a copy to each of the other parties hereto. Any notice given to any
corporate party shall be addressed to the attention of the Chairman of the
Board. Notice to the estate of any party shall be sufficient if addressed to the
party as provided in this Section 4.05. Any notice or other communication given
by certified mail (or by such comparable method) shall be deemed given at the
time of certification thereof (or comparable act), except for a notice changing
a party's address which will be deemed given at the time of receipt thereof. Any
notice given by other means permitted by this Section 4.05 shall be deemed given
at the time of receipt thereof. A copy of any and all notices to the Company
and/or VNI shall be delivered in accordance with this section to Reitler Xxxxx
LLC, 000 Xxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxx
Xxxxxx Xxxxx, Esq.
Section 4.06 Waiver.
Any waiver by any party of a breach of any term of this
Agreement shall not operate as or be construed to be a waiver of any other
breach of that term or of any breach of any other term of this Agreement. The
failure of a party to insist upon strict adherence to any term of this Agreement
on one or more occasions will not be considered a waiver or deprive that party
of the right thereafter to insist upon strict adherence to that term or any
other term of this Agreement. Any waiver must be in writing.
Section 4.07 Binding Effect.
The provisions of this Agreement shall be binding upon and
inure to the benefit of the Company, and VNI and their respective successors and
assigns and the Purchasers and their assigns, heirs, and personal
representatives, and shall inure to the benefit of each Indemnitee and its
successors and assigns (if not a natural person) and his assigns, heirs, and
personal representatives (if a natural person).
Section 4.08 No Third Party Beneficiaries.
This Agreement does not create, and shall not be construed as
creating, any rights enforceable by any person not a party to this Agreement
(except as provided in Section 4.07).
Section 4.09 Separability.
If any provision of this Agreement is invalid, illegal, or
unenforceable, the balance of this Agreement shall remain in effect, and if any
provision is inapplicable to any person or circumstance, it shall nevertheless
remain applicable to all other persons and circumstances.
Section 4.10 Headings.
The headings in this Agreement are solely for convenience of
reference and shall be given no effect in the construction or interpretation of
this Agreement.
Section 4.11 Counterparts; Governing Law.
This Agreement may be executed in any number of counterparts,
each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument. It shall be governed by and construed in
accordance with the laws of New York, without giving effect to conflict of laws.
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IN WITNESS WHEREOF, the parties have duly executed this Agreement as of
the date first written above.
VENTURES-NATIONAL INCORPORATED
By: /s/ Xxxxx X. Xxxxx
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Name: Xxxxx X. Xxxxx
Title: Chairman
TITAN PCB EAST, INC.
By: /s/ Xxxxx X. Xxxxx
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Name: Xxxxx X. Xxxxx
Title:
PERSONAL RESOURCES MANAGEMENT, INC.
By: /s/ Xxxxxxx Xxxxxx
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Name: Xxxxxxx Xxxxxx
Title: President
PURCHASERS
By: /s/ Xxxxxx Xxxxxx
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Name: Xxxxxx Xxxxxx
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By: /s/ Xxxx Xx Xxxx
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Name: Xxxx Xx Xxxx
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By: /s/ Xxxxxxx X Xxxxx, Xx
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Name: Xxxxxxx X. Xxxxx Xx
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Xxxxxxx X Xxxxxxx, Xxxx Xxx Xxxxxxxx TTEE
u/w/o Xxxxxxx X Xxxxxxx
By: /s/ Xxxxxxx X Xxxxxxx
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Name: Xxxxxxx X Xxxxxxx
Title: Trustee
By: /s/ Xxxx Xxx Xxxxxxxx
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Name: Xxxx Xxx Xxxxxxxx
Title: Trustee
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By: /s/ Xxxxxxx X Xxxxxxx
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Name: Xxxxxxx X Xxxxxxx
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By: /s/ Xxxx Xxxxx
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Name: Xxxx Xxxxx
