SECURITIES PURCHASE AGREEMENT
This
Agreement (the “Agreement”) is made as of the 20th day of July, 2006 by and
between Jordan 1 Holdings Company, a Delaware corporation having its offices
at
000 Xxxxxxxxx Xxxxxx, Xxxxx 000, Xxxxxxxxxxxx, XX, 00000 (the “Issuer”), and
Venture Fund I, Inc., a Nevada corporation having its offices at 0000 Xxxxxxxxx
Xxxxxxx Xxxxx, Xxxxxxx,
XX 00000 (the “Seller”).
W
I T
N E S S E T H:
WHEREAS,
the
Seller is the owner of 29,000,000 shares of the Issuer’s common stock, par value
$.001 per share (“Common Stock”), which represents a controlling interest in the
Issuer; and
WHEREAS,
the Seller desire to sell to the Issuer, and the Issuer desires to purchase
from
the Seller, 29,000,000 shares of Common Stock (the “Shares”), on and subject to
the terms of this Agreement;
WHEREAS,
pursuant to that Securities Purchase Agreement (“SPA”) dated July 20, 2006 by
and between Issuer on the one hand, and Xxxxxx Partners LP and the Equity
Investors named in Exhibit “A” to the SPA, on the other hand, it has been agreed
that Issuer would re-purchase the Shares from Seller, and cancel same, under
the
terms and conditions hereinafter set forth and as set xxxx in the SPA;
WHEREFORE,
the parties hereto hereby agree as follows:
Sale
of the Shares.
Subject
to the terms and conditions of this Agreement, and in reliance upon the
representations, warranties, covenants and agreements contained in this
Agreement, the Seller shall sell the Shares to the Issuer, and the Issuer shall
purchase the Shares from the Seller for a purchase price (the “Purchase Price”)
equal to:
(i) Five
hundred fifty thousand dollars ($550,000); and
(ii) Two
hundred thousand (200,000) shares of the Issuer’s Series B Convertible Preferred
Stock (the “Series B Preferred Stock”), each share of which shall be convertible
into two (2) shares of the Issuer’s Common Stock following the effectuation of a
reverse split by the Issuer. The Series B Preferred Stock and the underlying
400,000 shares of Common Stock shall have piggyback registration
rights.
Closing.
(a) The
purchase and sales of the Shares shall take place at a closing (the “Closing”),
to be held at such date, time and place within the City of New York as shall
be
determined by the Issuer on notice to the Seller.
(b) At
the
Closing:
(i)
The
Seller shall deliver to the Issuer a certificate for the Shares, duly endorsed
in form for transfer to the Issuer.
(ii)
The
Issuer shall pay the Purchase Price for the Shares and deliver to Seller a
certificate for the Preferred Shares.
(iii)
The
Issuer shall deliver a good standing certificate issued by the Secretary of
State of the State of Delaware.
(iv)
Counsel
for the Issuer shall have given its opinion to the Issuer, which may be relied
on by any subsequent purchasers of the Issuer’s capital stock and their counsel
if such purchases take place as part of the next direct or indirect merger
or
similar transaction with an operating business that results in a change of
control of the Issuer, to the effect that all of the issued and outstanding
capital stock has been duly and validly authorized and issued and is fully
paid
and non-assessable and to such counsel’s knowledge not issued in violation of
any preemptive right, right of first refusal or other right, and that the
issuance of such capital stock was exempt from the registration requirements
of
the Securities Act of 1933, as amended, by virtue of Section 4(2) of the
Commission thereunder.
(v)
The
Issuer shall cancel the Shares.
(c) At
and at
any time after the Closing, the parties shall duly execute, acknowledge and
deliver all such further assignments, conveyances, instruments and documents,
and shall take such other action consistent with the terms of this Agreement
to
carry out the transactions contemplated by this Agreement.
(d) All
representations, covenants and warranties of the Issuer and Seller contained
in
this Agreement shall be true and correct on and as of the Closing Date with
the
same effect as though the same had been made on and as of such
date.
Representations
and Warranties of the Issuer.
The
Issuer hereby makes the following representations and warranties to the
Seller:
(a) The
Issuer is a corporation duly organized, validly existing and in good standing
under the laws of the State of Delaware. The Issuer has the corporate power
to
own its properties and to carry on its business as now being conducted and
is
duly qualified to do business and is in good standing in each jurisdiction
in
which the failure to be so qualified and in good standing would have a material
adverse effect on the Issuer.
(b) The
Issuer has the requisite power and authority to enter into this Agreement and
to
consummate the transactions contemplated hereby and otherwise to carry out
its
obligations hereunder. The Issuer is not in violation of any of the provisions
of its certificate of incorporation or by-laws, and Seller is not in violation
of its operating agreement. No consent, approval or agreement of any individual
or entity is required to be obtained by the Issuer in connection with the
execution and performance by the Issuer of this Agreement or the execution
and
performance by the Issuer of any agreements, instruments or other obligations
entered into in connection with this Agreement.
(c) The
Issuer has authorized capital stock consisting of 100,000,000 shares of Common
Stock, par value $.001, and 10,000,000 shares of preferred stock, par value
$.001 per share (the “Preferred Stock”), of which 39,677,966 shares of Common
Stock, including the Shares, and no shares of Preferred Stock are presently
issued and outstanding.
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(d) The
Issuer is not a party to any agreement or understanding pursuant to which any
securities of any class of capital stock are to be issued or created or
transferred. The Issuer has not acquired any shares of Common Stock, and has
no
formal or informal agreements or understandings pursuant to which it can or
will
acquire any shares of Issuer Common Stock (other than this Agreement). Neither
the Issuer nor any officer, director or 5% stockholder of the Issuer has any
agreements, plans, understandings or proposals, whether formal or informal
or
whether oral or in writing, pursuant to which it or he granted or may have
issued or granted any individual or entity any Convertible Security or any
interest in the Issuer or the Issuer’s earnings or profits, however defined. As
used in this Agreement, the term “Convertible Securities” shall mean any
options, rights, warrants, convertible debt, equity securities or other
instrument or agreement upon the exercise or conversion of which or upon the
exchange of which or pursuant to the terms of which additional shares of any
class of capital stock of the Issuer may be issued.
(e) There
is
no private or governmental action, suit, proceeding, claim, arbitration or
investigation pending before any agency, court or tribunal, foreign or domestic,
or, to the Issuer’s knowledge, threatened against the Issuer or any of its
properties or any of its officers or directors (in their capacities as such).
There is no judgment, decree or order against the Issuer that could prevent,
enjoin, alter or delay any of the transactions contemplated by this Agreement.
(f) There
are
no material claims, actions, suits, proceedings, inquiries, labor disputes
or
investigations (whether or not purportedly on behalf of the Issuer) pending
or,
to the Issuer’s knowledge, threatened against the Issuer or any of its assets,
at law or in equity or by or before any governmental entity or in arbitration
or
mediation. No bankruptcy, receivership or debtor relief proceedings are pending
or, to the Issuer’s knowledge, threatened against the Issuer.
(g) The
Issuer has complied with, is not in violation of, and has not received any
notices of violation with respect to, any federal, state, local or foreign
Law,
judgment, decree, injunction or order, applicable to it, the conduct of its
business, or the ownership or operation of its business. References in this
Agreement to “Laws” shall refer to any laws, rules or regulations of any
federal, state or local government or any governmental or quasi-governmental
agency, bureau, commission, instrumentality or judicial body (including, without
limitation, any federal or state securities law, regulation, rule or
administrative order).
(h) The
Issuer is current with its reporting obligations under the Securities Exchange
Act of 1934, as amended (the “Exchange Act”).
(i) The
execution and delivery of this Agreement by the Issuer and the consummation
of
the transactions contemplated by this Agreement will not result in any material
violation of the Issuer’s certificate of incorporation or by-laws, or any
applicable Law.
Representations
and Warranties of the Seller.
Venture
Fund I , hereby makes the following representations and warranties to the
Issuer, which may be relied on by any subsequent purchasers of the Issuer’s
capital stock and their counsel if such purchases take place as part of the
next
direct or indirect merger or similar transaction with an operating business
that
results in a change of control of the Issuer:
(a) Seller
initially acquired the Shares in a private stock sale exempt from the
registration requirements of the Securities Act of 1933, as amended, by virtue
of Section 4(2) of the Commission thereunder, pursuant to a Stock Purchase
Agreement by and between the Seller and Gasel Transportation Lines, Inc. dated
as of December 30, 2005.
(b) Seller
owns the Shares free and clear of all any
and
all liens, claims, encumbrances, preemptive rights, right of first refusal
and
adverse interests of any kind.
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(c) Venture
Fund I is a corporation duly organized, validly existing and in good standing
under the laws of the State of Nevada. Venture Fund I has the corporate power
to
own its properties and to carry on its business as now being conducted and
is
duly qualified to do business and is in good standing in each jurisdiction
in
which the failure to be so qualified and in good standing would have a material
adverse effect on the Issuer.
(d) Seller
has the requisite power and authority to enter into this Agreement and to
consummate the transactions contemplated hereby and otherwise to carry out
its
obligations hereunder. The Seller is not in violation of any of the provisions
of its certificate of incorporation or by-laws. No consent, approval or
agreement of any individual or entity is required to be obtained by the Seller
in connection with the execution and performance by the Seller of this Agreement
or the execution and performance by the Seller of any agreements, instruments
or
other obligations entered into in connection with this Agreement.
(e) The
execution and delivery of this Agreement by the Seller and the consummation
of
the transactions contemplated by this Agreement will not result in any material
violation of the Seller’s certificate of incorporation or by-laws, or any
applicable Law.
(f) There
is
no private or governmental action, suit, proceeding, claim, arbitration or
investigation pending before any agency, court or tribunal, foreign or domestic,
or, to the Seller’s knowledge, threatened against the Seller or any of its
properties or any of its officers or directors (in their capacities as such).
There is no judgment, decree or order against the Seller that could prevent,
enjoin, alter or delay any of the transactions contemplated by this Agreement.
(g) There
are
no material claims, actions, suits, proceedings, inquiries, labor disputes
or
investigations (whether or not purportedly on behalf of the Issuer) pending
or,
to the Seller’s knowledge, threatened against the Seller or any of its assets,
at law or in equity or by or before any governmental entity or in arbitration
or
mediation. No bankruptcy, receivership or debtor relief proceedings are pending
or, to the Seller’s knowledge, threatened against the Seller.
(h) The
Seller has complied with, is not in violation of, and has not received any
notices of violation with respect to, any federal, state, local or foreign
Law,
judgment, decree, injunction or order, applicable to it, the conduct of its
business, or the ownership or operation of its business. References in this
Agreement to “Laws” shall refer to any laws, rules or regulations of any
federal, state or local government or any governmental or quasi-governmental
agency, bureau, commission, instrumentality or judicial body (including, without
limitation, any federal or state securities law, regulation, rule or
administrative order).
(i) At
the
xxxx Xxxxxx was offered the Preferred Stock, it was, and at the date hereof
it
is, 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.
(j) Seller,
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
Preferred Stock, and has so evaluated the merits and risks of such investment.
Seller is able to bear the economic risk of an investment in the Preferred
Stock
and, at the present time, is able to afford a complete loss of such
investment.
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(k) Seller
is
not purchasing the Preferred Stock as a result of any advertisement, article,
notice or other communication regarding the Preferred Stock 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.
(l) The
Issuer is not a party to any agreement or understanding pursuant to which any
securities of any class of capital stock are to be issued or created or
transferred. The Issuer has not acquired any shares of Common Stock, and has
no
formal or informal agreements or understandings pursuant to which it can or
will
acquire any shares of Issuer Common Stock (other than this Agreement). Neither
the Issuer nor any officer, director or 5% stockholder of the Issuer has any
agreements, plans, understandings or proposals, whether formal or informal
or
whether oral or in writing, pursuant to which it or he granted or may have
issued or granted any individual or entity any Convertible Security or any
interest in the Issuer or the Issuer’s earnings or profits, however defined. As
used in this Agreement, the term “Convertible Securities” shall mean any
options, rights, warrants, convertible debt, equity securities or other
instrument or agreement upon the exercise or conversion of which or upon the
exchange of which or pursuant to the terms of which additional shares of any
class of capital stock of the Issuer may be issued.
(m) There
is
no private or governmental action, suit, proceeding, claim, arbitration or
investigation pending before any agency, court or tribunal, foreign or domestic,
or, to the Issuer’s knowledge, threatened against the Issuer or any of its
properties or any of its officers or directors (in their capacities as such).
There is no judgment, decree or order against the Issuer that could prevent,
enjoin, alter or delay any of the transactions contemplated by this Agreement.
(n) There
are
no material claims, actions, suits, proceedings, inquiries, labor disputes
or
investigations (whether or not purportedly on behalf of the Issuer) pending
or,
to the Issuer’s knowledge, threatened against the Issuer or any of its assets,
at law or in equity or by or before any governmental entity or in arbitration
or
mediation. No bankruptcy, receivership or debtor relief proceedings are pending
or, to the Issuer’s knowledge, threatened against the Issuer.
(o) The
Issuer has complied with, is not in violation of, and has not received any
notices of violation with respect to, any federal, state, local or foreign
Law,
judgment, decree, injunction or order, applicable to it, the conduct of its
business, or the ownership or operation of its business. References in this
Agreement to “Laws” shall refer to any laws, rules or regulations of any
federal, state or local government or any governmental or quasi-governmental
agency, bureau, commission, instrumentality or judicial body (including, without
limitation, any federal or state securities law, regulation, rule or
administrative order).
Finder’s
Fee.
Seller
represents and warrants that no person is entitled to receive a finder’s fee
from Seller in connection with this Agreement as a result of any action taken
by
the Issuer or Seller pursuant to this Agreement, and agrees to indemnify and
hold harmless the other party, its officers, directors and affiliates, in the
event of a breach of the representation and warranty set forth in this Section
4. This representation and warranty shall survive the Closing.
Escrow.
A
portion of the Purchase Price equal to One Hundred Thousand Dollars ($100,000)
shall be held in escrow with Xxxxxxx & Xxxxxxx (the “Escrow Agent”) for a
period of six (6) months from the Closing. No later than fifteen days prior
to
the termination date of the Escrow, the Issuer shall give written notice to
the
Escrow Agent that the escrow is terminating and shall provide the Escrow Agent
with a written acknowledgement stating that there are no known claims against
the Issuer.
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Termination
by Mutual Agreement.
This
Agreement may be terminated at any time by mutual consent of the parties hereto,
provided that such consent to terminate is in writing and is signed by each
of
the parties hereto.
Miscellaneous.
(a) Entire
Agreement.
This
Agreement constitutes the entire agreement of the parties, superseding and
terminating any and all prior or contemporaneous oral and written agreements,
understandings or letters of intent between or among the parties with respect
to
the subject matter of this Agreement. No part of this Agreement may be modified
or amended, nor may any right be waived, except by a written instrument which
expressly refers to this Agreement, states that it is a modification or
amendment of this Agreement and is signed by the parties to this Agreement,
or,
in the case of waiver, by the party granting the waiver. No course of conduct
or
dealing or trade usage or custom and no course of performance shall be relied
on
or referred to by any party to contradict, explain or supplement any provision
of this Agreement, it being acknowledged by the parties to this Agreement that
this Agreement is intended to be, and is, the complete and exclusive statement
of the agreement with respect to its subject matter. Any waiver shall be limited
to the express terms thereof and shall not be construed as a waiver of any
other
provisions or the same provisions at any other time or under any other
circumstances.
(b) Severability.
If any
section, term or provision of this Agreement shall to any extent be held or
determined to be invalid or unenforceable, the remaining sections, terms and
provisions shall nevertheless continue in full force and effect.
(c) 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,
mail
or messenger against receipt thereof or sent by registered or certified mail,
return receipt requested, or by facsimile transmission or similar means of
communication if receipt is confirmed or if transmission of such notice is
confirmed by mail as provided in this Section 6(c). Notices shall be deemed
to
have been received on the date of personal delivery or telecopy or attempted
delivery. Notice shall be delivered to the parties at the following
addresses:
If
to the
Issuer: Jordan
1
Holdings Co.
c/o
Heskett & Xxxxxxx
Attorneys
at Law
000
Xxxxx
Xxxxxxxxx, Xxxxx 000
Xxxxxxxxxxxx,
Xxxxxxxx 00000
Facsimile:
(000) 000-0000
If
to
Seller:
Venture
Fund I, Inc.
x/x
Xxxxxxx & Xxxxxxx
Xxxxxxxxx
at Law
000
Xxxxx
Xxxxxxxxx, Xxxxx 000
Xxxxxxxxxxxx,
Xxxxxxxx 00000
Facsimile:
(000) 000-0000
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With
a
copy to: Xxxx
Xxxxxxx, Esq.
Xxxxxxx
& Xxxxxxx
Attorneys
at Law
000
Xxxxx
Xxxxxxxxx, Xxxxx 000
Xxxxxxxxxxxx,
Xxxxxxxx 00000
Facsimile:
(000) 000-0000
Either
party may, by like notice, change the address, person or telecopier number
to
which notice shall be sent.
(d) Governing
Law.
This
Agreement shall be governed and construed in accordance with the laws of the
State of New York applicable to agreements executed and to be performed wholly
within such State, without regard to any principles of conflicts of law. Each
of
the parties hereby irrevocably consents and agrees that any legal or equitable
action or proceeding arising under or in connection with this Agreement shall
be
brought in the federal or state courts located in the County of New York in
the
State of New York, by execution and delivery of this Agreement, irrevocably
submits to and accepts the jurisdiction of said courts, (iii) waives any defense
that such court is not a convenient forum, and (iv) consent to any service
of
process made either (x) in the manner set forth in Section 10(c) of this
Agreement (other than by telecopier), or (y) any other method of service
permitted by law.
(e) Waiver
of Jury Trial.
EACH
PARTY HEREBY
EXPRESSLY WAIVES ANY RIGHT TO A TRIAL BY JURY IN THE EVENT OF ANY SUIT, ACTION
OR PROCEEDING TO ENFORCE THIS AGREEMENT OR ANY OTHER ACTION OR PROCEEDING WHICH
MAY ARISE
OUT OF
OR IN ANY WAY BE CONNECTED WITH THIS AGREEMENT OR ANY OF THE OTHER
DOCUMENTS.
(f) Parties
to Pay Own Expenses.
Each of
the parties to this Agreement shall be responsible and liable for its own
expenses incurred in connection with the preparation of this Agreement, the
consummation of the transactions contemplated by this Agreement and related
expenses.
(g) Successors.
This
Agreement shall be binding upon the parties and their respective heirs,
executors, administrators, legal representatives, successors and assigns;
provided, however, that neither party may assign this Agreement or any of its
rights under this Agreement without the prior written consent of the other
party.
(h) Further
Assurances.
Each
party to this Agreement agrees, without cost or expense to any other party,
to
deliver or cause to be delivered such other documents and instruments as may
be
reasonably requested by any other party to this Agreement in order to carry
out
more fully the provisions of, and to consummate the transaction contemplated
by,
this Agreement.
(i) Counterparts.
This
Agreement may be executed simultaneously in two or more counterparts, each
of
which shall be deemed an original but all of which together shall constitute
one
and the same instrument.
(j) No
Strict Construction.
The
language used in this Agreement will be deemed to be the language chosen by
the
parties with the advice of counsel to express their mutual intent, and no rules
of strict construction will be applied against any party.
(k) Headings.
The
headings in the Sections of this Agreement are inserted for convenience only
and
shall not constitute a part of this Agreement.
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IN
WITNESS WHEREOF,
the
parties hereto have caused this Agreement to be duly executed as of the date
first above written.
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VENTURE
FUND I, INC.
By:/s/
Xxxx Xxxxxxx
Name:
Xxxx Xxxxxxx
Title:
President and Sole Director
|
|
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JORDAN
1 HOLDINGS COMPANY
By:/s/
Xxxx Xxxxxxxx
Xxxx
Xxxxxxxx, Chief Executive Officer
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