COMMON STOCK PURCHASE AGREEMENT
THIS COMMON STOCK PURCHASE AGREEMENT is entered into as of this 19th day
of September, 2005 (this "Agreement"), by and between Anza Capital, Inc., a
Nevada corporation ("Anza" or the "Company"), ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, an individual
("▇▇▇▇▇▇▇▇") and AMRES Holding, LLC, a Nevada limited liability company ("AMRES"
and together with ▇▇▇▇▇▇▇▇, each a "Seller" and collectively the "Sellers"), on
the one hand, and Viking Investments USA, Inc., a Delaware corporation (the
"Purchaser"), on the other hand. Each of Anza, the Sellers, and the Purchaser
may be referred to as a "Party" and collectively as the "Parties."
WHEREAS, on the Closing Date (as defined in Section 2.1) the Sellers will
own an aggregate of approximately 10,279,369 shares (the "Shares") of common
stock, par value $0.001 per share of the Company (the "Common Stock") and
warrants to purchase a total of 3,450,000 shares of the Company's common stock
(the "Warrants"); and
WHEREAS, the Purchaser desires to purchase from the Sellers, and the
Sellers desire to sell to the Purchaser, the Shares and the Warrants (the
"Purchased Securities") upon the terms and conditions set forth in this
Agreement.
NOW, THEREFORE, in consideration of the premises and the mutual agreements
contained in this Agreement, the Parties hereby agree as follows:
ARTICLE 1
SALE OF THE PURCHASED SECURITIES
Section 1.1 Sale of the Purchased Securities. Subject to the terms and
conditions set forth in this Agreement, Sellers agree to sell, transfer and
assign to the Purchaser and the Purchaser agrees to purchase from the Seller,
the Purchased Securities, for an aggregate purchase price of $375,000 (the
"Purchase Price").
A. Section 1.2 Allocation of the Purchase Price. The Purchase Price
will be paid to the Company, and $150,000 will be distributed as a cash
dividend to the Company shareholders as of the Closing Date (excluding the
Shares). The dividend will be paid on approximately 3,127,050 shares and
be equal to approximately $0.0479 per share). The balance of the funds
will be used to resolve all outstanding obligations of the Company and
AMRES prior to the Closing.
Section 1.3 Purchase Price. The Purchase Price shall be payable in two
tranches; (i) an initial payment of FIFTY THOUSAND DOLLARS ($50,000), (the
"Initial Payment") to be paid into escrow (to the Attorney Trust Account of
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Esq.), and the remaining portion of the Purchase Price of THREE
HUNDRED TWENTY FIVE THOUSAND DOLLARS ($325,000) shall be paid at closing in good
funds (the "Final Payment") so long as (a) the conditions precedent set forth in
Article 7 hereof have been waived or satisfied in accordance with such article
and (b) this Agreement has not been terminated pursuant to Article 8 hereof.
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ARTICLE 2
CLOSING AND DELIVERY
Section 2.1 Closing Date. Upon the terms and subject to the conditions set
forth herein, the consummation of the purchase and sale of the Purchased
Securities (the "Closing") shall be held on October 28, 2005 or at a time
mutually agreed upon between the constituent parties (the "Closing Date"). The
Closing shall take place at the offices of Viking Investments, ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇, ▇▇, ▇▇ ▇▇▇▇▇ or by the exchange of documents and instruments by mail,
courier, telecopy and wire transfer to the extent mutually acceptable to the
parties hereto.
Section 2.2 Delivery at Closing. At the Closing:
The Sellers shall deliver to the Purchaser
A. stock certificates representing the Shares, duly endorsed for
transfer to the Purchaser, as applicable, and accompanied by, (i) if
required by the Company's transfer agent, an opinion of counsel reasonably
acceptable to the Company, the Purchaser and the Company's transfer agent
and (ii) stock powers or other instruments of transfer duly executed to
the Purchaser, with signature medallion guaranteed; and
B. the Warrants, along with validly executed Assignments of Warrants
duly executed to the Purchaser.
ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF SELLERS AND THE COMPANY
Sellers and the Company jointly and severally represent and warrant to the
Purchaser that:
Section 3.1 Existence and Power. ANZA is a corporation duly incorporated,
validly existing and in good standing under the laws of the State of Nevada and
has all corporate powers and all governmental licenses, authorizations, permits,
consents and approvals required to carry on its business as now conducted. ANZA
has heretofore delivered to the Purchaser true and complete copies of the
Certificate of Incorporation, as amended, and By-laws, each as currently in
effect.
Section 3.2 Authorization; No Agreements. The execution, delivery and
performance by Sellers of this Agreement, the performance of their obligations
hereunder, and the consummation of the transactions contemplated hereby are
within the Sellers' powers. Sellers have full legal capacity to execute and
deliver this Agreement and perform their obligations hereunder. This Agreement
has been duly and validly executed and delivered by the Sellers and is a legal,
valid and binding obligation of the Sellers, enforceable against Sellers in
accordance with its terms. The execution, delivery and performance by the
Sellers of this Agreement does not violate any contractual restriction contained
in any agreement which binds or affects or purports to bind or affect the
Sellers. Neither the Sellers nor the Company is a party to any agreement,
written or oral, creating rights in respect of any of the Purchased Securities
on the part of any third party or relating to the voting of the Shares. As of
the Closing, Sellers will be the lawful owner of the Purchased Securities, free
and clear of all security interests, liens, encumbrances, equities and other
charges. Sellers further represent that they do not beneficially own any options
or warrants or other rights to purchase shares of the Common Stock. As of the
Closing, there will not be any outstanding or authorized options, warrants,
rights, calls, commitments, conversion rights, rights of exchange or other
agreements of any character, contingent or otherwise, providing for the
purchase, issuance or sale of any of the Shares, or any arrangements that
require or permit any of the Shares to be voted by or at the discretion of
anyone other than the Sellers, and there are no restrictions of any kind on the
transfer of any of the Shares other than (a) restrictions on transfer imposed by
the Securities Act of 1933, as amended (the "Securities Act") and (b)
restrictions on transfer imposed by applicable state securities or "blue sky"
laws.
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Section 3.3 Capitalization.
(a) The authorized capital stock of the Company consists of
100,000,000 shares of the Common Stock, par value $0.001 per share, of
which approximately 13,406,419 shares will be issued as of the Closing.
All of the outstanding shares of capital stock of the Company have been
duly authorized and validly issued and are fully paid and nonassessable
and were not issued in violation of any preemptive or similar rights. All
of the issued and outstanding shares of capital stock of the Company have
been offered, issued and sold by the Company in compliance with all
applicable federal and state securities laws. No securities of the Company
are entitled to preemptive or similar rights, and no person, natural or
otherwise ("Person"), has any right of first refusal, preemptive right,
right of participation, or any similar right to participate in the
transactions contemplated hereby. There are no outstanding options,
warrants, script rights to subscribe to, calls or commitments of any
character whatsoever relating to, or securities, rights or obligations
convertible into or exchangeable for, or giving any Person any right to
subscribe for or acquire, any shares of the Common Stock, or contracts,
commitments, understandings or arrangements by which the Company is or may
become bound to issue additional shares of the Common Stock, or securities
or rights convertible or exchangeable into shares of the Common Stock. The
issuance and sale of the Shares will not obligate the Company to issue
shares of the Common Stock or other securities to any Person (other than
the Purchaser) and shall not result in a right of any holder of Company
securities to adjust the exercise, conversion, exchange or reset price
under such securities.
(b) As of the Closing, there will not be any outstanding
obligations, contingent or otherwise, of ANZA to redeem, purchase or
otherwise acquire or issue any capital stock or other securities of ANZA.
(c) There are no shareholder agreements, voting trusts or other
agreements or understandings to which ANZA or Sellers is a party or by
which either of them are bound relating to the voting of any shares of the
capital stock of ANZA.
(d) The Shares, when delivered in accordance with the terms of this
Agreement, shall be validly issued, fully paid and non-assessable and the
Shares shall not be subject to any lien, charge, security interest or
other encumbrance or preemptive or other similar right.
Section 3.4 Subsidiary. As of the Closing, Anza will have no subsidiaries.
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Section 3.5 Financial Statements.
(a) SEC Reports; Financial Statements. The Company has filed all
reports required to be filed by it under the Securities Act and the
Securities Exchange Act of 1934, as amended (the "Exchange Act"),
including pursuant to Section 13(a) or 15(d) of the Exchange Act, since
its inception as a public reporting company (the foregoing materials being
collectively referred to herein as the "SEC Reports"). The Seller has
identified and made available to the Purchaser a copy of all SEC Reports
filed within the 10 days preceding the date of this Agreement. As of their
respective dates, the SEC Reports complied in all material respects with
the requirements of the Securities Act and the Exchange Act and the rules
and regulations of the Commission promulgated thereunder, and none of the
SEC Reports, when filed, contained any untrue statement of a material fact
or omitted to state a material fact required to be stated therein or
necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading. The financial
statements of the Company included in the SEC Reports comply in all
material respects with applicable accounting requirements and the rules
and regulations of the Commission with respect thereto as in effect at the
time of filing. Such financial statements have been prepared in accordance
with generally accepted accounting principles applied on a consistent
basis during the periods involved ("GAAP"), except as may be otherwise
specified in such financial statements or the notes thereto, and fairly
present in all material respects the financial position of the Company and
its consolidated subsidiaries as of and for the dates thereof and the
results of operations and cash flows for the periods then ended, subject,
in the case of unaudited statements, to normal, immaterial, fiscal
year-end audit adjustments.
(b) Since the date of the filing of its annual report on Form 10-KSB
for the period ended April 30, 2005, except as specifically disclosed in
the SEC Reports: (i) there has been no event, occurrence or development
that has had or that could result in a material adverse effect on (x) the
condition (financial or otherwise), assets, liabilities or properties of
the Company or (y) on the timely consummation of the transactions
contemplated hereby; (ii) the Company has not incurred any liabilities
(contingent or otherwise) or amended of any material term of any
outstanding security; (iii) the Company has not altered its method of
accounting or the identity of its auditors; (iv) the Company has not
declared or made any dividend or distribution of cash or other property to
its stockholders or purchased, redeemed or made any agreements to purchase
or redeem any shares of its capital stock; (v) the Company has not issued
any equity securities to any officer, director or Affiliate (as defined
below); (vi) the Company has not made any loan, advance or capital
contributions to or investment in any Person; (vii) the Company has not
entered into any transaction or commitment made, or any contract or
agreement entered into, relating to its business or any of its assets
(including the acquisition or disposition of, or creation of a lien on,
any assets) or any relinquishment by ANZA of any contract or other right;
(viii) the Company has not granted any severance or termination pay to any
current or former director, officer or employee of ANZA, or increased the
benefits payable under any existing severance or termination pay policies
or employment agreements or entered into any employment, deferred
compensation or other similar agreement (or any amendment to any such
existing agreement) with any current or former director, officer or
employee of ANZA; (ix) the Company has not established, adopted or amended
(except as required by applicable law) any collective bargaining, bonus,
profit sharing, thrift, pension, retirement, deferred compensation,
compensation, stock option, restricted stock or other benefit plan or
arrangement covering any current or former director, officer or employee
of ANZA; (x) the Company has not increased the compensation, bonus or
other benefits payable or otherwise made available to any current or
former director, officer or employee of ANZA; (xi) the Company has not
made any tax election or any settlement or compromise of any tax
liability, in either case that is material to ANZA or entered into any
transaction by the Company not in the ordinary course of business.
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Section 3.6 Liabilities or Debts. As of the Closing, there will be no
liabilities or debts of ANZA of any kind whatsoever, whether accrued,
contingent, absolute, determined, determinable or otherwise, and there is no
existing condition, situation or set of circumstances which could reasonably be
expected to result in such a liability or debt. The Company has no employees.
The Company is currently leasing an office space with the address ▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ from the landlord Fifth Street
Properties - DS, LLC, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
for a monthly rent of approximately $30,500, which expires June 2008. The office
space is occupied by AMRES, which has subleased 50% of the office to First Line
Mortgage, Inc. As of the Closing, the lease will be assumed by American
Residential Funding, Inc., a Nevada corporation.
Section 3.7 Litigation. There is no (a) action, suit, investigation, audit
or proceeding pending against, or, to the best knowledge of the Sellers and
ANZA, threatened or contemplated against or affecting, ANZA or any of its assets
or properties before or by any court or arbitrator or any governmental body,
agency or official or (b) injunction, outstanding judgment, restraining order,
decree or other order of any nature to which the Company is or may be subject or
to which the business, assets or property of the Company is or may be subject.
The Company is not in default with respect to any order, writ, injunction,
decree, ruling or decision of any court, commission, board or any other
government agency. The Securities and Exchange Commission (the "Commission") has
not issued any stop order or other order suspending the effectiveness of any
registration statement filed by the Company under the Exchange Act or the
Securities Act.
Section 3.8 Taxes. (a) ANZA has (i) duly filed with the appropriate taxing
authorities all tax returns required to be filed by or with respect to its
business, including with respect to the Subsidiary, and all such duly filed tax
returns are true, correct and complete in all material respects in relation to
any and all applicable taxes, fees, levies, duties, tariffs, imposts, and other
charges of any kind (together with any and all interest, penalties, additions to
tax and additional amounts imposed with respect thereto) imposed by any
government or taxing authority, including taxes or other charges on or with
respect to income, franchises, windfall or other profits, gross receipts,
property, sales, use, capital stock, payroll, employment, social security,
workers' compensation, unemployment compensation, or net worth; taxes or other
charges in the nature of excise, withholding, ad valorem, stamp, transfer, value
added, or gains taxes; license, registration and documentation fees; and
customs' duties, tariffs, and similar charges, and (ii) paid in full or made
adequate provisions for on its balance sheet (in accordance with GAAP) all taxes
shown to be due on such tax returns. There are no liens for taxes upon the
assets of ANZA. ANZA has not received any notice of audit, is not undergoing any
audit of its tax returns, and has not received any notice of deficiency or
assessment from any taxing authority with respect to liability for taxes which
has not been fully paid or finally settled. There have been no waivers of
statutes of limitations by ANZA with respect to any tax returns. ANZA has not
filed a request with the Internal Revenue Service for changes in accounting
methods within the last three years which change would affect the accounting for
tax purposes, directly or indirectly, of its business. ANZA has not executed an
extension or waiver of any statute of limitations on the assessment or
collection of any taxes due (excluding such statutes that relate to years
currently under examination by the Internal Revenue Service or other applicable
taxing authorities) that is currently in effect.
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Section 3.10 Solvency; Indebtedness. Based on the financial condition of
the Company as of the Closing Date: (i) the fair saleable value of the Company's
assets equals or exceeds the amount that will be required to be paid on or in
respect of the Company's existing debts and other liabilities (including known
contingent liabilities) as they mature; (ii) the Company's assets do not
constitute unreasonably small capital to carry on its business for the current
fiscal year as now conducted; and (iii) the current cash flow of the Company,
together with the proceeds the Company would receive, were it to liquidate all
of its assets, after taking into account all anticipated uses of the cash, would
be sufficient to pay all amounts on or in respect of its debt when such amounts
are required to be paid. The Company does not intend to incur debts beyond its
ability to pay such debts as they mature. The Company has no knowledge of any
facts or circumstances which lead it to believe that it will file for
reorganization or liquidation under the bankruptcy or reorganization laws of any
jurisdiction within one (1) year from the Closing Date. The SEC Reports set
forth as of the dates thereof reflect all outstanding secured and unsecured
indebtedness of the Company, or for which the Company has commitments. The
Company is not in default with respect to any Indebtedness. At the Closing,
there will be no outstanding liabilities, obligations or indebtedness of the
Company other than disclosed in this Agreement.
Section 3.11 No Brokers. No brokerage or finder's fees or commissions are
or will be payable by the Company or Sellers to any broker, financial advisor or
consultant, finder, placement agent, investment banker, bank or other person
with respect to the transactions contemplated by this Agreement, and the Company
has not taken any action that would cause the Purchaser to be liable for any
such fees or commissions. The Company and Sellers agree that the Purchaser shall
have no obligation with respect to any fees or with respect to any claims made
by or on behalf of any Person, for fees of the type contemplated by this Section
3.11 and Sellers shall indemnify and hold the Purchaser and the Company harmless
from any fees, costs or liabilities of any kind incurred by the Purchaser or the
Company in connection therewith.
Section 3.12 Disclosure. All disclosure provided to the Purchaser
regarding the Company, its business and the transactions contemplated hereby,
furnished by or on behalf of the Company or the Sellers with respect to the
representations and warranties made herein, are true and correct with respect to
such representations and warranties and do not contain any untrue statement of a
material fact or omit to state any material fact necessary in order to make the
statements made therein, in light of the circumstances under which they were
made, not misleading.
Section 3.13 No Disagreements with Accountants and Lawyers. There are no
disagreements of any kind presently existing, or reasonably anticipated by the
Company to arise, between the accountants and lawyers formerly or presently
employed by the Company and the Company is current with respect to any fees owed
to its accountants and lawyers.
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Section 3.14 No Conflicts. The execution, delivery and performance of this
Agreement and the transactions contemplated hereby do not and will not: (i)
conflict with or violate any provision of the Company's Certificate or Articles
of Incorporation, By-laws or other organizational or charter documents; (ii)
conflict with, or constitute a default (or an event that with notice or lapse of
time or both would become a default) under, or give to others any rights of
termination, amendment, acceleration or cancellation (with or without notice,
lapse of time or both) of any agreement, credit facility, debt or other
instrument (evidencing a Company debt or otherwise) or other understanding to
which the Company is a party or by which any property or asset of the Company is
bound or affected; and (iii) result in a violation of any law, rule, regulation,
order, judgment, injunction, decree or other restriction of any court or
governmental authority to which the Company is subject (including federal and
state securities laws and regulations), or by which any property or asset of the
Company is bound or affected.
Section 3.15 Filings, Consents and Approvals. Neither the Sellers nor the
Company is required to obtain any consent, waiver, authorization or order of any
court or other federal, state, local or other governmental authority or other
Person in connection with the execution, delivery and performance of this
Agreement.
Section 3.16 Compliance. The Company: (i) is not in default under or in
violation of (and no event has occurred that has not been waived that, with
notice or lapse of time or both, would result in a default by the Company
under), nor has the Company received notice of a claim that it is in default
under or that it is in violation of, any indenture, loan or credit agreement or
any other agreement or instrument to which it is a party or by which it or any
of its properties is bound (whether or not such default or violation has been
waived), (ii) is not in violation of any order of any court, arbitrator or
governmental body and (iii) is not and has not been in violation of any statute,
rule or regulation of any governmental authority.
Section 3.17 Transactions With Affiliates and Employees. Except as
required to be set forth in the SEC Reports, none of the officers or directors
of the Company and, to the knowledge of the Sellers, no (a) Person that directly
or indirectly, through one or more intermediaries, controls, is controlled by,
or is under common control with the Company (an "Affiliate") or (b) director,
officer or employee of the Company is presently a party to any transaction with
the Company (other than for services as employees, officers and directors),
including any contract, agreement or other arrangement providing for the
furnishing of services to or by, providing for rental of real or personal
property to or from, or otherwise requiring payments to or from any officer,
director or such employee or, to the knowledge of the Company, any entity in
which any officer, director, or any such employee has a substantial interest or
is an officer, director, trustee or partner.
Section 3.18 Assets. Except as set forth in the SEC Reports, the Company
has no assets, including, without limitation, goodwill, assets, real property,
tangible personal property, intangible personal property, rights and benefits
under contracts and cash. All Company leases for real or personal property are
in good standing, valid and effective in accordance with their respective terms,
and there is not under any of such leases, any existing material default or
event of default (or event which with notice or lapse of time, or both, would
constitute a material default).
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Section 3.19 Investment Company/Investment Advisor. The business of the
Company does not require it to be registered as an investment company or
investment advisor, as such terms are defined under the Investment Company Act
and the Investment Advisors Act of 1940.
Section 3.20 Environmental Matters. The Company has complied with all
applicable statutes, laws and regulations relating to the environment. There is
no related pending or threatened civil or criminal litigation, written notice of
violation, formal administrative proceeding or investigation, inquiry or
information request by any governmental entity.
Section 3.21 Informed Decision. Sellers are aware of the Company's
business affairs and financial condition and have reached an informed and
knowledgeable decision to sell the Purchased Securities.
Section 3.23 Consummation of a Merger Transaction. Sellers acknowledge
that it is the intention of the Purchaser, upon completion of the transactions
contemplated hereby, to cause the Company to consummate a merger with or
acquisition of a yet unidentified private unaffiliated company (the "Merger")
some time in the future. Sellers further acknowledge that, upon consummation of
the Merger, it is likely or possible that each Share will increase in value,
possibly substantially. Sellers have had such opportunity as they desire to ask
the Purchaser any questions and receive information concerning such matters,
including the risks associated therewith, and has received satisfactory answers
to such questions and desires to complete the sale of the Purchased Securities
contemplated under this Agreement.
Section 3.24 Change of Control. Neither the Company nor the Sellers are a
party to an agreement for, nor involved in any discussions concerning any
transaction that would reasonably be expected to result in any "person" or
"group" (as such terms are used in Sections 13(d) and 14(d) of the Exchange
Act), becoming the "beneficial owner" (as defined in Rule 13d-3 under the
Exchange Act), directly or indirectly, of 5% or more of the total voting power
of the outstanding Common Stock.
Section 3.25 Blue Sky. The Sellers and the Company have obtained all
necessary permits and qualifications, if any, or secured an exception therefore,
required for the offer and sale of the Purchased Securities.
Section 3.26 Appointment of Directors. The board of directors of the
Company shall immediately following the Closing, appoint to the board of
directors, two individuals who are nominated by the Purchaser. In addition,
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ shall resign from all positions with the Company, including as
president, secretary, chief financial officer and director, immediately after
such appointments.
Section 3.27 Notice of Developments. Prior to the Closing, the Sellers and
the Company shall promptly notify the Purchaser in writing of all events,
circumstances facts and occurrences arising subsequent to the date of this
Agreement which would reasonably be expected to result in any breach of a
representation or warranty or covenant of the Sellers or the Company in this
Agreement or which would reasonably be expected to have the effect of making any
representation or warranty of the Sellers or the Company in this Agreement
untrue or incorrect in any respect. Such notification shall not affect or
otherwise limit the Purchaser's right to enforce the terms of this Agreement
hereto as they existed on the date hereof, without taking into account such
notification.
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ARTICLE 4
REPRESENTATIONS OF THE PURCHASER
The Purchaser represents and warrants, solely as to itself, to the Seller,
as follows:
Section 4.1 Execution and Delivery. The execution, delivery and
performance by the Purchaser's execution and delivery of this Agreement is
within such Purchaser's powers and does not violate any contractual restriction
contained in any agreement which binds or affects or purports to bind or affect
the Purchaser.
Section 4.2 Binding Effect. This Agreement, when executed and delivered by
the Purchaser shall be irrevocable and will constitute the legal, valid and
binding obligations of the Purchaser enforceable against the Purchaser in
accordance with its terms, except as may be limited by applicable bankruptcy,
insolvency, moratorium and other laws of general application affecting
enforcement of creditors' rights generally or general principles of equity
(regardless of whether such enforceability is considered in a proceeding in
equity or at law).
Section 4.3 Investment Purpose. The Purchaser represents that it is
purchasing the Purchased Securities for its own account, with the intention of
holding the Purchased Securities, with no present intention of dividing or
allowing others to participate in this investment or of reselling or otherwise
participating, directly or indirectly, in a distribution of the Purchased
Securities, and shall not make any sale, transfer, or pledge thereof without
registration under the Securities Act and any applicable securities laws of any
state unless an exemption from registration is available under those laws.
Section 4.4 Investment Experience. The Purchaser has such knowledge and
experience in financial and business matters as to be capable of evaluating the
merits and risks of an investment in the Purchased Securities.
Section 4.5 Opportunity to Ask Questions. The Purchaser has had a full and
fair opportunity to make inquiries about the terms and conditions of this
Agreement, to discuss the same and all related matters with its own independent
counsel and its own accountants and tax advisers. The Purchaser has been given
the opportunity to ask questions of, and receive answers from Sellers concerning
the terms and conditions of this Agreement and to obtain such additional written
information about ANZA to the extent Sellers possesses such information or can
acquire it without unreasonable effort or expense. Notwithstanding the
foregoing, the Purchaser has had the opportunity to conduct its own independent
investigation.
4.6 Further Limitations on Disposition. Purchaser further acknowledges
that the Purchased Securities are restricted securities under Rule 144 of the
Act, and, therefore, when transferred to the Purchaser will contain a
restrictive legend substantially similar to the following:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED ("ACT"), AND MAY NOT BE
OFFERED OR SOLD EXCEPT PURSUANT TO (I) AN EFFECTIVE REGISTRATION STATEMENT
UNDER THE ACT, (II) TO THE EXTENT APPLICABLE, RULE 144 UNDER THE ACT (OR
ANY SIMILAR RULE UNDER SUCH ACT RELATING TO THE DISPOSITION OF
SECURITIES), OR (III) AN OPINION OF COUNSEL, LICENSED TO PRACTICE LAW
WITHIN THE UNITED STATES, REASONABLY SATISFACTORY TO COUNSEL TO THE
ISSUER, THAT AN EXEMPTION FROM REGISTRATION UNDER SUCH ACT IS AVAILABLE.
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ARTICLE 5
COVENANTS OF THE PARTIES
The parties hereto agree that:
Section 5.1 Public Announcements. The Sellers, the Company and the
Purchaser shall consult with each other before issuing any press release or
making any public statement with respect to this Agreement or the transactions
contemplated hereby and, except as may be required by applicable statutes, laws
and regulations, including rules and regulations of the Commission, will not
issue any such press release or make any such public statement prior to such
consultation and without the consent of the other parties.
Section 5.2 Notices of Certain Events. In addition to any other notice
required to be given by the terms of this Agreement, each of the parties shall
promptly notify the other party hereto of:
(a) any notice or other communication from any Person alleging that
the consent of such Person is or may be required in connection with any of
the transactions contemplated by this Agreement;
(b) any notice or other communication from any governmental or
regulatory agency or authority in connection with the transactions
contemplated by this Agreement; and
(c) any actions, suits, claims, investigations or proceedings
commenced or, to such party's knowledge, threatened against, relating to
or involving or otherwise affecting such party that, if pending on the
date of this Agreement, would have been required to have been disclosed
pursuant to Section 3 or Section 4 (as the case may be) or that relate to
the consummation of the transactions contemplated by this Agreement.
Section 5.3 Access to Information. Following the date of this Agreement,
until consummation of all transactions contemplated hereby, the Sellers and the
Company shall give to the Purchaser, its counsel, financial advisers, auditors
and other authorized representatives reasonable access to their offices,
properties, books and records, financial and other data and information as the
Purchaser and its respective representatives may reasonably request.
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Section 5.4 ANZA's Business. ANZA will not, without the prior written
consent of the Purchaser, except as set forth herein and as required to complete
the transactions contemplated by this Agreement, (i) make any material change in
the type or nature of its business, or in the nature of its operations, (ii)
create or suffer to exist any debt, other than that currently shown in the SEC
Reports, (iii) issue any capital stock or (iv) enter into any new agreements of
any kind (other than those contemplated by this Agreement) or undertake any new
obligations or liabilities.
Section 5.5 Indemnification. The Purchaser indemnifies and holds harmless
the Company and Sellers for any and all liability, including all reasonable
attorneys' fees, that arises as a proximate result of any material inaccuracy or
misrepresentation in, or breach of, any representation, warranty, covenant or
agreement made by the Purchaser in this Agreement. The Sellers and the Company
indemnify and hold harmless the Purchaser for any and all liability, including
all reasonable attorneys' fees, that arises as a proximate result of any
material inaccuracy or misrepresentation in, a breach of, any representation,
warranty, covenant or agreement made by the Sellers or the Company in this
Agreement.
Section 5.6 Reasonable Efforts. Each Party agrees to use its reasonable
best efforts to take, or cause to be taken, all actions and to do, or cause to
be done, all things necessary or advisable to consummate and make effective as
promptly as practicable the transactions contemplated by this Agreement and to
cooperate with the other parties in connection with the foregoing. Each Party
further agrees not to undertake any course of action inconsistent with the
satisfaction of the conditions to Closing set forth herein, and to do all such
acts and take all such measures as may be reasonable to comply, and be in
compliance, with the representations, warranties, covenants and agreements
contained in this Agreement.
Section 5.7 Cooperation. In the event that any investigation, inquiry,
lawsuit, administrative proceeding or any other proceeding is commenced with
respect to the Company, the Sellers shall fully cooperate with and provide all
applicable documents to, the Company and Purchaser, immediately upon request of
the Company or the Purchaser.
ARTICLE 6
CONDITIONS PRECEDENT
Section 6.1 Conditions of Obligations of the Purchaser. The obligations of
the Purchaser are subject to the satisfaction of the following conditions, any
or all of which may be waived in whole or in part by the Purchaser:
(a) Representations and Warranties. Each of the representations and
warranties of the Sellers and the Company set forth in this Agreement
shall be true and correct in all material respects as of (1) the date of
this Agreement (except to the extent such representations and warranties
speak as of an earlier date), and (2) the Closing Date, as though made on
and as of all of such dates.
(b) Compliance Certificate. The Sellers and President of ANZA shall
deliver to the Purchaser at the Closing a certificate certifying: (i) that
there has been no material adverse change in the business, affairs,
prospects, operations, properties, assets or conditions of the Company
since the date of this Agreement; (ii) that attached thereto is a true and
complete copy of ANZA's Certificate of Incorporation, as amended, as in
effect at the Closing; (iii) that attached thereto is a true and complete
copy of its By-laws, as in effect at the Closing; and (iv) each of the
representations and warranties of the Sellers and the Company set forth in
this Agreement are true and correct in all material respects as of the
Closing Date as though made on and as of the Closing Date.
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(c) Good Standing Certificates. The Company shall have furnished the
Purchaser with good standing and existence certificates for ANZA in its
jurisdiction of formation and such other jurisdictions as the Purchaser
reasonably requests.
(d) Certified List of Record Holders. The Purchaser shall have
received a certified list dated as of a date within two (2) business days
prior to the Closing Date from ANZA's transfer agent of the holders of
record of the Common Stock and current Non-Objecting Beneficial Ownership
(NOBO) list.
(e) Company Minutes and Assumption of Office Lease. The Purchaser
shall have received at least four (4) business days prior to the Closing
Date executed copies of (i) all minutes, consents, resolutions of the
Company (for meetings of or by stockholders and directors of the Company)
(ii) documentation confirming the assumption by American Residential
Funding, Inc. of ANZA's financial obligation to Fifth Street Properties -
DS, LLC pursuant to Office Lease of AMRES and First Line Mortgage's office
space located at ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, in form and
substance reasonably satisfactory to the Purchaser.
(f) SEC Reports. The Company shall have prepared, executed and filed
with the SEC, its 10-K as of its fiscal year end of April 30, 2005 and its
10-Q for the quarter ended July 31, 2005.
(g) Board of Directors Resolutions. The Purchaser shall have
received executed resolutions of the Board of Directors of ANZA approving
the transactions contemplated herein including the resignation of all
current directors.
(h) Performance. The Seller and the Company shall have performed and
complied with all agreements, obligations and conditions contained in this
Agreement that are required to be performed or complied with by it on or
before the Closing.
(i) Filing of Reports. The Company will, for so long as it is
required to, make timely filing of such reports as are required to be
filed by it with the Commission.
Section 6.2 Conditions of Obligations of the Sellers. The obligations of
the Sellers to effect the sale of the Purchased Securities are subject to the
following conditions, any or all of which may be waived in whole or in part by
the Purchaser:
(a) Representations and Warranties. Each of the representations and
warranties of the Purchaser set forth in this Agreement shall be true and
correct in all material respects as of the date of this Agreement and
(except to the extent such representations and warranties speak as of an
earlier date) as of the Closing Date as though made on and as of the
Closing Date.
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(b) Compliance Certificate. An authorized officer of the Purchaser
shall deliver to the Sellers at the Closing a certificate certifying each
of the representations and warranties of such Purchaser set forth in this
Agreement are true and correct in all material respects as of the Closing
Date as though made on and as of the Closing Date.
(c) Performance. The Purchaser shall have performed and complied
with all agreements, obligations and conditions contained in this
Agreement that are required to be performed or complied with by it or him
on or before the Closing.
ARTICLE 7
TERMINATION
Section 7.1 Termination. This Agreement may be terminated and the purchase
and sale of the Shares may be abandoned at any time prior to the Closing:
(a) by mutual written consent of the parties hereto;
(b) by either the Sellers or the Purchaser if the Closing shall not
have occurred on or before the Closing;
(c) by the Purchaser if (i) the Sellers or the Company shall have
failed to comply in any material respect with any of the covenants,
conditions, terms or agreements contained in this Agreement to be complied
with or performed by the Sellers or the Company; or (ii) any
representations and warranties of Sellers or the Company contained in this
Agreement shall not have been true when made or on and as of the Closing
Date as if made on and as of Closing Date (except to the extent it relates
to a particular date); or
(d) by the Sellers if (i) the Purchaser shall have failed to comply
in any material respect with any of the covenants, conditions, terms or
agreements contained in this Agreement to be complied with or performed by
it; or (ii) any representations and warranties of the Purchaser contained
in this Agreement shall not have been true when made or on and as of the
Closing Date.
Section 7.2 Effect of Failure to Consummate the Merger. The parties agree
that all of the Purchased Securities will be deemed sold and the transactions
contemplated hereby consummated upon the Closing and delivery of the Purchased
Securities.
Section 7.3 Effect of Termination. In the event of the termination of this
Agreement pursuant to this Article 7, all further obligations of the parties
under this Agreement shall forthwith be terminated without any further liability
of any party to the other parties; provided, however, that nothing contained in
this Section 7.3 shall relieve any party from liability for any breach of this
Agreement. In addition, the Initial Payment shall be promptly, but in no event
more than two (2) business days, returned to the Purchaser.
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ARTICLE 8
MISCELLANEOUS
Section 8.1 Notices. All notices, requests and other communications to any
party hereunder shall be in writing and either delivered personally, telecopied
or sent by certified or registered mail, postage prepaid,
If to the Sellers ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
or the Company: AMRES Holding, LLC
Anza Capital, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, #▇▇▇
▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile (▇▇▇) ▇▇▇ ▇▇▇▇
With a copy to: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq.
The Lebrecht Group, APLC
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇ ▇▇▇▇
If to Purchaser: ▇▇▇ ▇▇▇▇▇
Viking Investments USA, Inc.
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile (▇▇▇) ▇▇▇ ▇▇▇▇
With a copy to: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Esq.
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇ ▇▇▇▇
or such other address or fax number as such party may hereafter specify for the
purpose by notice to the other parties hereto. All such notices, requests and
other communications shall be deemed received on the date delivered personally
or by overnight delivery service or confirmed facsimile transmission if received
prior to 5 p.m. in the place of receipt and such day is a business day in the
place of receipt. Otherwise, any such notice, request or communication shall be
deemed not to have been received until the next succeeding business day in the
place of receipt.
Section 8.2 Amendments; No Waivers.
(a) Any provision of this Agreement with respect to transactions
contemplated hereby may be amended or waived if, but only if, such
amendment or waiver is in writing and is signed, in the case of an
amendment, by the Sellers, the Company and the Purchaser; or in the case
of a waiver, by the party against whom the waiver is to be effective.
14
(b) No failure or delay by any party in exercising any right, power
or privilege hereunder shall operate as a waiver thereof nor shall any
single or partial exercise thereof preclude any other or further exercise
thereof or the exercise of any other right, power or privilege. The rights
and remedies herein provided shall be cumulative and not exclusive of any
rights or remedies provided by law.
Section 8.3 Fees and Expenses. Each of the Sellers and the Purchaser shall
bear all costs and expenses incurred by them in connection with this Agreement,
and the Company shall bear no expenses in connection with the transaction
anticipated hereby.
Section 8.4 Successors and Assigns. The provisions of this Agreement shall
be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns; provided, that the Purchaser shall have the
right to assign this Agreement to an affiliate of the Purchaser and no other
party hereto may assign, delegate or otherwise transfer any of its rights or
obligations under this Agreement without the consent of each other party hereto,
but any such transfer or assignment will not relieve the appropriate party of
its obligations hereunder.
Section 8.5 Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York, without giving
effect to the principles of conflicts of law thereof.
Section 8.6 Jurisdiction. Any suit, action or proceeding seeking to
enforce any provision of, or based on any matter arising out of or in connection
with, this Agreement or the transactions contemplated hereby may be brought in
any federal or state court located in the City of New York, Borough of
Manhattan, and each of the parties hereto consents to the jurisdiction of such
courts (and of the appropriate appellate courts therefrom) in any such suit,
action or proceeding and irrevocably waives, to the fullest extent permitted by
law, any objection which it may now or hereafter have to the laying of the venue
of any such suit, action or proceeding in any such court or that any such suit,
action or proceeding which is brought in any such court has been brought in an
inconvenient forum. Process in any such suit, action or proceeding may be served
on any party anywhere in the world, whether within or without the jurisdiction
of any such court. Without limiting the foregoing, each party agrees that
service of process on such party as provided in Section 9.1. shall be deemed
effective service of process on such party. Each party hereto (including its
affiliates, agents, officers, directors and employees) irrevocably waives, to
the fullest extent permitted by applicable law, any and all right to trial by
jury in any legal proceeding arising out of or relating to this Agreement or the
transactions contemplated hereby.
Section 8.7 Counterparts; Effectiveness. This Agreement may be signed in
any number of counterparts, each of which shall be an original, with the same
effect as if the signatures thereto and hereto were upon the same instrument.
This Agreement shall become effective when each party hereto has received
counterparts hereof signed by all of the other parties. No provision of this
Agreement is intended to confer upon any Person other than the parties hereto
any rights or remedies under this Agreement.
Section 8.8 Entire Agreement. This Agreement constitutes the entire
agreement between the parties with respect to the subject matter of this
Agreement and supersedes and merges all prior agreements and understandings,
both oral and written, between the parties with respect to the subject matter of
this Agreement.
15
Section 8.9 Captions. The captions are included for convenience of
reference only and shall be ignored in the construction or interpretation of
this Agreement.
Section 8.10 Severability. If any term, provision, covenant or restriction
of this Agreement is held by a court of competent jurisdiction or other
authority to be invalid, void or unenforceable, the remainder of the terms,
provisions, covenants and restrictions of this Agreement shall remain in full
force and effect and shall in no way be affected, impaired or invalidated so
long as the economic or legal substance of the transactions contemplated hereby
is not affected in any manner materially adverse to any parties. Upon such a
determination, the parties shall negotiate in good faith to modify this
Agreement so as to effect the original intent of the parties as closely as
possible in an acceptable manner in order that the transactions contemplated
hereby are consummated as originally contemplated to the fullest extent
possible.
Section 8.11 Specific Performance. The parties hereto agree that
irreparable damage would occur in the event any provision of this Agreement was
not performed in accordance with the its terms and that the parties shall be
entitled to specific performance of the terms of this Agreement in addition to
any other remedy to which they are entitled at law or in equity.
Section 8.12 Survival. The representations and warranties contained in
this Agreement shall survive the Closing and delivery of the Purchased
Securities only as against Seller and notwithstanding any provision to the
contrary contained in this Agreement, upon and after the Closing, any claim by
Purchaser for a breach of any representation or warranty of Sellers or the
Company contained in this Agreement may be made only against Sellers and
Purchaser shall have no claim against the Company for any such breach.
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IN WITNESS WHEREOF, each of the following individuals has caused this
Agreement to be signed, and each Party that is not an individual has caused this
Agreement to be duly executed under seal by its respective authorized officers,
all as of the day and year first above written.
"Anza" "▇▇▇▇▇▇▇▇"
Anza Capital, Inc.,
a Nevada corporation
By: /s/ By: /s/
-------------------------- ------------------------------------------
By: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ By: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, an individual
Its: President
"AMRES" "Purchaser"
AMRES Holding, LLC, Viking Investments USA, Inc.,
a Nevada limited liability company a Delaware corporation
By: /s/ By: /s/
--------------------------- ------------------------------------------
By: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ By: ▇▇▇ ▇▇▇▇▇
Its: Managing Member Its: President
17