EXHIBIT 10.9
COMMON STOCK PURCHASE AGREEMENT
BETWEEN
CLEMENTS GOLDEN PHOENIX ENTERPRISES, INC.
(THE COMPANY)
AND
CAPITAL CONSULTANTS, INC.
(THE PURCHASER)
DATED AS OF FEBRUARY 1, 2001
COMMON STOCK PURCHASE AGREEMENT
This Common Stock Purchase Agreement (this "Agreement") is made and entered into
as of February 1, 2001 (the "Effective Date"), between Clements Golden Phoenix
Enterprises, Inc. (the "Company"), a Florida corporation, and Capital
Consultants, Inc. (the "Purchaser").
Background
The Company has authorized the issuance, sale, and delivery of
200,000 shares (the "Shares") of the Company's Common Stock, par value $0.0001
("Common Stock") at a price per Share of $1.00, in currency of the United States
of America, for a total purchase price of $200,000. The Purchaser wishes to
purchase the Shares upon the terms and conditions stated in this Agreement. The
Purchaser is purchasing the Shares in reliance upon the exemption from the
registration requirements of Section 5 of the U.S. Securities Act of 1933, as
amended (the "Act"), in reliance upon Rule 506 of Regulation D promulgated
thereunder, or other applicable exemptions.
Agreement
For and in consideration of the premises and the mutual
covenants contained herein and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the Company and the
Purchaser hereby agree as follows:
Section 1. Common Stock.
Section 1.1. Issuance and Sale of Common Stock
The Company agrees (i) to issue and sell the Shares to the
Purchaser and the Purchaser agrees to purchase the Shares from the Company, at
the Closing, for the Purchase Price of US$200,000.
Section 1.2. Closing.
The closing of the purchase and sale of the Shares (the
"Closing") shall take place at the offices of Mintmire & Associates, 265 Sunrise
Avenue, Suite 204, Palm Beach, Florida 33480, at 2:00 p.m., Eastern time, on
February 1, 2001 (the "Closing Date"), or on such other date or such other time
or place as the parties may agree.
Section 1.3 Deliveries at Closing
At the Closing the Company shall deliver to Purchaser:
(a) this Agreement, executed by the Company;
(b) a certificate for the Shares, registered in the
Purchaser's name, free and clear of any claims, and containing a legend
complying with the requirements of SEC Rule 506;
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(c) the Registration Rights Agreement (defined in
Section 4.9 below), executed by the Company, in substantially the form of
Exhibit B hereto;
(d) the opinion of Mintmire & Associates, legal
counsel to the Company, in substantially the form of Exhibit A hereto; and
Section 2. Purchaser's Representations and Warranties
The Purchaser represents and warrants with respect to only
itself that:
Section 2.1. Investment Purpose
The Purchaser is acquiring the Shares, for the account for of
certain "accredited investors," and who are acquiring the Shares for investment
and not with a view towards, or for resale in connection with, the public sale
or distribution thereof; provided however, that by making the representations
herein, the Purchaser does not agree to hold any Shares for any minimum or other
specific term. The Purchaser acknowledges that the Shares may not be resold,
except pursuant to an effective registration statement under the Securities Act
or an applicable exemption therefrom.
Section 2.2. Accredited Purchaser Status
The Purchaser is an "accredited investor" as that term is
defined in Rule 501(a)(3) of Regulation D of the SEC.
Section 2.3. Reliance on Regulation D or other applicable Exemption
The Purchaser understands that the Shares are being offered
and sold to it in reliance on the exemption from the registration requirements
of Section 5 of the Securities Act for limited offers and sales as defined in
SEC Rule 506, and that the Company is relying in part upon the truth and
accuracy of, and the Purchaser's compliance with, the representations,
warranties, agreements, acknowledgments, and understandings of the Purchaser set
forth herein in order to determine the availability of such exemptions and the
eligibility of the Purchaser to acquire such Shares. With respect to that
exemption, the Purchaser further represents and warrants to the Company that:
(a) The Purchaser is an accredited investor as defined by SEC
Rule 501(a).
(b) The Purchaser has complied with all of the conditions
required of it by SEC Rule 506.
Section 2.4. Information
The Purchaser and its advisors, if any, have been furnished
with all materials relating to the business, financial condition, and operations
of the Company and materials relating to the offer and sale of the Shares, which
have been requested by the Purchaser. The Purchaser and its advisors, if any,
have been afforded the opportunity to ask questions of the Company. Neither such
inquiries nor any other due diligence investigations conducted by the Purchaser
or its advisors, if
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any, or its representatives shall modify, amend, or affect the Purchaser's right
to rely on the Company's representations and warranties contained in Section 3
below. The Purchaser understands that its investment in the Shares involves a
high degree of risk. The Purchaser has sought such accounting, legal, and tax
advice as it has considered necessary to make an informed investment decision
with respect to its acquisition of the Shares.
Section 2.5. No Governmental Review
The Purchaser understands that no United States federal or
state agency or any other government or governmental agency has passed on or
made any recommendation or endorsement of the Shares, or the fairness or
suitability of the investment in the Shares, nor have such authorities passed
upon or endorsed the merits of the offering of the Shares.
Section 2.6. Authorization Enforcement
This Agreement has been duly and validly authorized, executed,
and delivered on behalf of the Purchaser and is a valid and binding agreement of
the Purchaser enforceable in accordance with its terms, subject as to
enforceability to general principles of equity and to applicable bankruptcy,
insolvency, reorganization, moratorium, liquidation, and other similar laws
relating to, or affecting generally, the enforcement of applicable creditors'
rights and remedies.
Section 2.7. Organization
The Purchaser is a limited partnership organized under the
laws of Kentucky.
Section 2.8. No Scheme to Evade Registration.
Purchaser represents and warrants to the Company that the
acquisition of the Shares is not a transaction (or any element of a series of
transactions) that is part of a plan or scheme by the Purchaser to evade the
registration provisions of the Securities Act.
Section 3. Representations And Warranties Of The Company
The Company represents and warrants to the Purchaser that:
Section 3.1. Organization and Qualification
The Company is a corporation duly organized, validly existing,
and in good standing under the laws of Florida, and has the requisite corporate
power to own its properties and to carry on its business as now being conducted.
The Company is not qualified as a foreign corporation to do business in any
other jurisdiction. The Company has a wholly-owned subsidiary, Clements Citrus
Sales of Florida, Inc., a Florida corporation.
Section 3.2. Authorization, Enforcement, Compliance with Other Instruments.
(a) The Company has the requisite corporate power and
authority to enter into and perform this Agreement and to issue the Shares;
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(b) the execution and delivery of this Agreement by the
Company, and the consummation by it of the transactions contemplated hereby,
including without limitation the issuance of the Shares, have been duly
authorized by the Company's Board of Directors and no further consent or
authorization is required by the Company, its Board of Directors or its
stockholders;
(c) this Agreement has been duly executed and delivered by the
Company and the persons signing on behalf of the Company have full power and
authority to do so; and
(d) this Agreement constitutes the valid and binding
obligation of the Company enforceable against the Company in accordance with its
terms, except as such enforceability may be limited by general principles of
equity or applicable bankruptcy, insolvency, reorganization, moratorium,
liquidation, or similar laws relating to, or affecting generally, the
enforcement of creditors' rights and remedies.
Section 3.3. Capitalization
Immediately prior to Closing, the authorized capital stock of
the Company consisted of 50,000,000 shares of Common Stock, of which 28,498,764
shares are issued and outstanding. No shares of the Company's capital stock are
subject to preemptive rights or any other similar rights.
Section 3.4. Issuance of Shares
The Shares are duly authorized and, upon issuance in
accordance with the terms hereof, shall be validly issued, fully paid, and
nonassessable, are free from all taxes, liens, and charges with respect to the
issue thereof and are entitled to the rights and preferences set forth in the
Shares. The Shares are "restricted securities" as defined by SEC rules, and may
be transferred, assigned or resold by the Purchaser only in accordance with the
Securities Act and the SEC rules promulgated thereunder.
Section 3.5. No Conflicts
The execution, delivery, and performance of this Agreement and
the Acquisition Agreement by the Company, and the consummation by the Company of
the transactions contemplated hereby and thereby, will not (a) result in a
violation of the Certificate of Incorporation, any Certificate of Designation
applicable to any Preferred Stock of the Company, or the Bylaws of the Company
or (b) conflict with, constitute a default (or an event which 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 of, any
agreement, indenture, or instrument to which the Company is a party, or result
in a violation of any law, rule, regulation, order, judgment, or decree
(including federal and state securities laws and regulations) applicable to the
Company or by which any property or asset of the Company is bound or affected.
The Company is not in violation of any term of, or in default under, its
Certificate of Incorporation or Bylaws, or any material contract, agreement,
mortgage, indebtedness, indenture, instrument, judgment, decree, or order or any
statute,
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rule, or regulation applicable to the Company. The business of the Company is
not being conducted and shall not be conducted in violation of any law,
ordinance, or regulation of any governmental entity. Except as specifically
contemplated by this Agreement, the Acquisition Agreement and as required under
the Securities Act and any applicable state securities laws, the Company is not
required to obtain any consent, authorization, or order of, or make any filing
or registration with, any court or governmental agency in order for it to
execute, deliver, and perform any of its obligations under or contemplated by
this Agreement and the Acquisition Agreement in accordance with the terms hereof
or thereof. All consents, authorizations, orders, filings, and registrations
which the Company is required to obtain pursuant to the preceding sentence have
been obtained or effected on or prior to the date hereof. The Company is unaware
of any facts or circumstances which might give rise to any of the foregoing.
Section 3.6. Financial Statements
The Company's unaudited balance sheet at September 30, 2000
and the audited balance sheet at March 31, 2000, and the related statements of
profit and loss for the periods then ended, were prepared in accordance with
generally accepted accounting principles, are true, correct and complete in all
material respects, and fairly present the Company's financial position at that
date and the results of its operations for the period then ended. The Company
has not engaged in any transaction, maintained any bank account, or used any of
the funds of the Company that are not reflected in the normally maintained books
and records of the Company. No other information provided by or on behalf of the
Company to the Purchaser which is not included in the Financial Statements,
including, without limitation, information referred to in Section 2.4 of this
Agreement, contains any untrue statement of a material fact or omits to state
any material fact necessary in order to make the statements therein, in the
light of the circumstance under which they are or were made, not misleading.
Section 3.7. Absence of Certain Changes
Since the date of the Company's opening balance sheet, there
has been no material adverse change and no material adverse development in the
business, properties, operations, financial condition, results of operations, or
prospects of the Company. The Company has not taken any steps, and does not
currently expect to take any steps, to seek protection pursuant to any
bankruptcy law nor does the Company have any knowledge or reason to believe that
its creditors intend to initiate involuntary bankruptcy proceedings.
Section 3.8. Absence of Litigation
There is no action, suit, proceeding, inquiry, or
investigation before or by any court, public board, government agency,
self-regulatory organization, or body pending or, to the knowledge of the
Company, threatened against or affecting the Company or the Common Stock, in
which an unfavorable decision, ruling or finding would (a) have a material
adverse effect on the transactions contemplated hereby, (b) adversely affect the
validity or enforceability of, or the authority or ability of the Company to
perform its obligations under this Agreement, or any of the other documents
contemplated herein, or (c) have a material adverse effect on the business,
operations, properties, financial condition, or results of operation of the
Company.
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Section 3.9. Purchase of Shares
The Company acknowledges and agrees that the Purchaser is
acting solely in the capacity of an arm's length purchaser with respect to this
Agreement and the transactions contemplated hereby. The Company further
acknowledges that the Purchaser is not acting as a financial advisor or
fiduciary of the Company (or in any similar capacity) with respect to this
Agreement or the Acquisition Agreement, or the transactions contemplated herein
or therein. The Company further represents to the Purchaser that the Company's
decision to enter into this Agreement has been based solely on the independent
evaluation by the Company and its representatives.
Section 3.10. No Undisclosed Events, Liabilities, Developments, or
Circumstances
No event, liability, development, or circumstance has occurred
or exists, or is contemplated to occur, with respect to the Company or its
businesses, properties, prospects, operations, or financial condition, which
could be material but which has not been publicly announced or disclosed in
writing to the Purchaser.
Section 3.11. No General Solicitation
Neither the Company, nor any of its affiliates, nor any person
acting on its or their behalf, has engaged in any form of general solicitation
or general advertising (within the meaning of Regulation D under the Securities
Act) in connection with the offer or sale of the Shares.
Section 3.12. No Integrated Offering
Neither the Company, nor any of its affiliates, nor any person
acting on its or their behalf has, directly or indirectly, made any offers or
sales of any security or solicited any offers to buy any security, under
circumstances that would require registration of the Shares under the Securities
Act or cause this offering of the Shares to be integrated with prior offerings
by the Company for purposes of the Securities Act or any applicable stockholder
approval provisions.
Section 3.13. Internal Accounting Controls
The Company maintains a system of internal accounting controls
sufficient to provide reasonable assurance that (a) transactions are executed in
accordance with management's general or specific authorizations, (b)
transactions are recorded as necessary to permit preparation of financial
statements in conformity with generally accepted accounting principles and to
maintain asset accountability, (c) access to assets is permitted only in
accordance with management's general or specific authorization, and (d) the
recorded accountability for assets is compared with the existing assets at
reasonable intervals and appropriate action is taken with respect to any
differences.
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Section 3.14. No Materially Adverse Contracts, Etc.
The Company is not subject to any charter, corporate, or other
legal restriction, or any judgment, decree, order, rule, or regulation which in
the judgment of the Company's officers has, or is expected in the future to
have, a material adverse effect on the business, properties, operations,
financial condition, results of operations, or prospects of the Company. The
Company is not a party to any contract or agreement which in the judgment of the
Company's officers has, or is expected to have, a material adverse effect on the
business, properties, operations, financial condition, results of operations, or
prospects of the Company.
Section 3.15. Tax Status
The Company has made or filed all federal and state income and
all other tax returns, reports, and declarations required by any jurisdiction to
which it is subject (unless and only to the extent that the Company has set
aside on its books provisions reasonably adequate for the payment of all unpaid
and unreported taxes), and has paid all taxes and other governmental assessments
and charges that are material in amount, shown or determined to be due on such
returns, reports, and declarations, except those being contested in good faith
and has set aside on its books provision reasonably adequate for the payment of
all taxes for periods subsequent to the periods to which such returns, reports,
or declarations apply. There are no unpaid taxes in any material amount claimed
to be due by the taxing authority of any jurisdiction, and the officers of the
Company know of no basis for any such claim.
Section 3.16. Certain Transactions
Except for arm's length transactions pursuant to which the
Company makes payments in the ordinary course of business upon terms no less
favorable than the Company could obtain from third parties, none of the
officers, directors, or employees 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
corporation, partnership, trust, or other entity in which any officer, director,
or any such employee has a substantial interest or is an officer, director,
trustee, or partner.
Section 3.17. Fees and Rights of First Refusal
The Company is not obligated to offer the securities offered
hereunder on a right of first refusal basis or otherwise to any third parties
including, but not limited to, current or former shareholders of the Company,
underwriters, brokers, agents, or other third parties. The Company is not
obligated to pay any commission or fee in connection with the issuance and sale
of the Shares for which the Purchaser is or may become liable.
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Section 4. Covenants
Section 4.1. Best Efforts
Each party shall use its best efforts timely to satisfy each
of the conditions to be satisfied by it as provided in Sections 5 and 6 of this
Agreement.
Section 4.2. Compliance with Regulation D
Each party shall comply with all of the terms of SEC Rule 506
required of it with respect to the Shares.
Section 4.3. Use of Proceeds
The Company will use the proceeds from the sale of the Shares
for general working capital purposes.
Section 4.4 Listings
The Company shall maintain the listing of its Common Stock
(including the Shares), on the OTC Bulletin Board, and upon the NASDAQ Small Cap
Market as soon thereafter as it is eligible therefor.
Section 4.5. Expenses
Each party hereto shall pay its own expenses, including
attorney's fees, incurred in connection with this Agreement.
Section 4.6. Registration Rights
In the event the Company files a registration statement (the
"Registration Statement") with the SEC on certain form(s), as provided for in
the Registration Rights Agreement (the "Registration Rights Agreement") the
Purchaser may request have the Shares included in such registration in
accordance with the terms of the Registration Rights Agreement.
Section 5. Conditions To The Company's Obligation To Sell
The obligation of the Company hereunder to issue and sell the
Shares to The Purchaser at the Closing is subject to the satisfaction, at or
before the Closing Date, of each of the following conditions, provided that
these conditions are for the Company's sole benefit and may be waived by the
Company at any time in its sole discretion:
(a) The Purchaser shall have executed this Agreement and
delivered the same to the Company.
(b) The Purchaser shall have delivered the Purchase Price for
the Shares to the Company.
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(c) The representations and warranties of the Purchaser shall
be true and correct in all material respects as of the date when made and as of
the Closing Date as though made at that time, and the Purchaser shall have
performed, satisfied, and complied in all material respects with the covenants,
agreements and conditions required by this Agreement to be performed, satisfied
or complied with by the Purchaser at or prior to the Closing Date.
Section 6. Conditions To The Purchaser's Obligation To Purchase
The obligation of The Purchaser hereunder to purchase the
Shares at the Closing is subject to the satisfaction, at or before the Closing
Date, of each of the following conditions, provided that these conditions are
for the Purchaser's sole benefit and may be waived by the Purchaser at any time
in its sole discretion:
(a) The Company shall have executed this Agreement.
(b) The Company shall have executed the Registration Rights
Agreement.
(c) The representations and warranties of the Company shall be
true and correct in all material respects (except to the extent that any of such
representations and warranties is already qualified as to materiality in Section
3 above, in which case, such representations and warranties shall be true and
correct without further qualification) as of the date when made and as of the
Closing Date as though made at that time (except for representations and
warranties that speak as of a specific date) and the Company shall have
performed, satisfied, and complied in all material respects with the covenants,
agreements, and conditions required by this Agreement to be performed,
satisfied, or complied with by the Company at or prior to the Closing Date.
(d) The Purchaser shall have received the opinion of the
Company's counsel dated as of the Closing Date, in form, scope, and substance
reasonably satisfactory to the Purchaser and in substantially the form of
Exhibit A attached hereto.
Section 7. Indemnification
In consideration of the Purchaser's execution and delivery of
this Agreement and acquiring the Shares hereunder and in addition to all of the
Company's other obligations under this Agreement, the Company shall defend,
protect, indemnify, and hold harmless the Purchaser, and all of its officers,
directors, employees, and agents (including, without limitation, those retained
in connection with the transactions contemplated by this Agreement)
(collectively, the "Indemnitees") from and against any and all actions, causes
of action, suits, claims, losses, costs, penalties, fees, liabilities, and
damages, and expenses in connection therewith (irrespective of whether any such
Indemnitee is a party to the action for which indemnification hereunder is
sought), and including reasonable attorneys' fees and disbursements (the
"Indemnified Liabilities"), incurred by the Indemnitees or any of them as a
result of, or arising out of, or relating to (a) any misrepresentation or breach
of any representation or warranty made by the Company in this Agreement of the
Acquisition Agreement, or any other certificate, instrument, or document
contemplated hereby or
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thereby, (b) any breach of any covenant, agreement, or obligation of the Company
contained in this Agreement, or (c) any cause of action, suit, or claim brought
or made against such Indemnitee and arising out of or resulting from the
execution, delivery, performance, or enforcement of this Agreement, or any other
instrument, document, or agreement executed pursuant hereto by any of the
Indemnities, any transaction financed or to be financed in whole or in part,
directly or indirectly, with the proceeds of the issuance of the Shares, or the
status of the Purchaser or holder of the Shares, as a stockholder in the
Company. To the extent that the foregoing undertaking by the Company may be
unenforceable for any reason, the Company shall make the maximum contribution to
the payment and satisfaction of each of the Indemnified Liabilities which is
permissible under applicable law.
Section 8. General Provisions
Section 8.1. Governing Law
This Agreement shall be governed by and interpreted in
accordance with the laws of the State of Florida and the exemption from the
registration requirements of the Securities Act for the sale shall be governed
by SEC Rule 506. The parties agree that the courts of Palm Beach County,
Florida, shall have exclusive jurisdiction and venue for the adjudication of any
civil action between them arising out of relating to this Agreement, and hereby
irrevocably consent to such jurisdiction and venue.
Section 8.2. Counterparts
This Agreement may be executed in two or more identical
counterparts, all of which shall be considered one and the same agreement and
shall become effective when counterparts have been signed by each party and
delivered to the other party. In the event any signature page is delivered by
facsimile transmission, the party using such means of delivery shall cause four
(4) additional original executed signature pages to be physically delivered to
the other party within five (5) days of the execution and delivery hereof.
Section 8.3. Headings
The headings of this Agreement are for convenience of
reference and shall not form part of, or affect the interpretation of, this
Agreement.
Section 8.4. Severability
If any provision of this Agreement shall be invalid or
unenforceable in any jurisdiction, such invalidity or unenforceability shall not
affect the validity or enforceability of the remainder of this Agreement in that
jurisdiction or the validity or enforceability of any provision of this
Agreement in any other jurisdiction.
Section 8.5. Entire Agreement, Amendments
This Agreement supersedes all other prior oral or written
agreements between the Purchaser, the Company, their affiliates and persons
acting on their behalf with respect to the
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issuance and sale of the Shares, and this Agreement and the instruments
referenced herein contain the entire understanding of the parties with respect
to the matters covered herein and therein and, except as specifically set forth
herein or therein, neither the Company nor any Purchaser makes any
representation, warranty, covenant, or undertaking with respect to such matters.
No provision of this Agreement may be waived or amended other than by an
instrument in writing signed by the party to be charged with enforcement.
Section 8.6. Notices
Any notices, consents, waivers, or other communications
required or permitted to be given under the terms of this Agreement must be in
writing and will be deemed to have been delivered (a) upon receipt, when
delivered personally, (b) upon receipt, when sent by facsimile, provided a copy
is mailed by U.S. certified mail, return receipt requested, (c) three (3) days
after being sent by certified mail, return receipt requested, or (d) one (1) day
after deposit with a nationally recognized overnight delivery service, in each
case properly addressed to the party to receive the same. The addresses and
facsimile numbers for such communications shall be:
if to the Company: with a copy
(which shall not constitute notice) to:
Clements Golden Phoenix Enterprises, Inc. Mintmire & Associates
3135 S.W. Mapp Road 265 Sunrise Avenue
P.O. Box 268 Suite 204
Palm City, FL 34991 Palm Beach, FL 33480
Attention: Joseph R. Rizzuti, Chairman & Attention: Donald F. Mintmire
Chief Operating Officer Telephone: (561) 832-5696
Telephone: (561) 287-5958 Facsimile: (561) 659-5371
Facsimile: (561) 287-9776
if to the Purchaser: with a copy
(which shall not constitute notice) to:
Capital Consultants, Inc. Frank G. Dickey, Jr.
1050 Chinoe Road, Suite 304 1050 Chinoe Road, Suite 304
Lexington, KY 40502 Lexington, KY 40502
Facsimile No. (859) 268-4446
Each party shall provide five (5) day's prior written notice to the other party
of any change in address or facsimile number.
Section 8.7. Successors and Assigns
This Agreement shall be binding upon and inure to the benefit
of the parties and their respective successors and assigns. The Company shall
not assign this Agreement or any rights or obligations hereunder without the
prior written consent of the Purchaser. The Purchaser may assign
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its rights hereunder without the consent of the Company, provided however, that
any such assignment shall not release the Purchaser from its obligations
hereunder unless such obligations are assumed by such assignee and the Company
has consented to such assignment and assumption.
Section 8.8. No Third Party Beneficiaries
This Agreement is intended for the benefit of the parties
hereto and their respective permitted successors and assigns, and is not for the
benefit of, nor may any provision hereof be enforced by, any other person.
Section 8.9. Survival
Unless this Agreement is terminated under Section 8.12, the
representations and warranties of the Company and the Purchaser contained in
Sections 2 and 3, the agreements and covenants set forth in Sections 4 and 5,
and the indemnification provisions set forth in Section 7, shall survive the
Closing. The Purchaser shall be responsible only for its own representations,
warranties, agreements, and covenants hereunder.
Section 8.10. Publicity
The Company and the Purchaser shall have the right to approve,
before issuance, any press releases or any other public statements with respect
to the transactions contemplated hereby; provided however, that the Company
shall be entitled, without the prior approval of the Purchaser, to make any
press release or other public disclosure with respect to such transactions as is
required by applicable law and regulations (although the Purchaser shall be
consulted by the Company in connection with any such press release or other
public disclosure prior to its release and shall be provided with a copy
thereof).
Section 8.11. Further Assurances
Each party shall do and perform, or cause to be done and
performed, all such further acts and things, and shall execute and deliver all
such other agreements, certificates, instruments, and documents, as the other
party may reasonably request in order to carry out the intent and accomplish the
purposes of this Agreement and the consummation of the transactions contemplated
hereby.
Section 8.12. Termination
In the event that the Closing shall not have occurred with
respect to the Purchaser on or before five (5) business days from the date
hereof due to the Company's or Purchaser's failure to satisfy the conditions set
forth in Sections 5 and 6 above (and the non-breaching party's failure to waive
such unsatisfied condition(s)), the non-breaching party shall have the option to
terminate this Agreement with respect to such breaching party at the close of
business on such date without liability of any party to any other party;
provided however, that if this Agreement is terminated pursuant to this Section
8.12, the Company shall remain obligated to reimburse the Purchaser for the
expenses described in Section 4.6 above.
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Section 8.13. No Strict Construction
The language used in this Agreement will be deemed to be the
language chosen by the parties to express their mutual intent, and no rules of
strict construction will be applied against any party.
Section 8.14. Currency
All dollar amounts expressed in this Agreement are currency of
the United States of America.
IN WITNESS WHEREOF, the Company and the Purchaser have caused
this Common Stock Purchase Agreement to be duly executed as of the date first
written above.
CLEMENTS GOLDEN PHOENIX
ENTERPRISES, INC.
By /s/ Joseph Rizzuti
- --------------------------------------------
Joseph Rizzuti, Chairman &
Chief Operating Officer
CAPITAL CONSULTANTS, INC.
By /s/ Frank G. Dickey, Jr.
- --------------------------------------------
Name Frank G. Dickey, Jr.
- --------------------------------------------
Title President
- --------------------------------------------
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