STOCK REPURCHASE AND SETTLEMENT AGREEMENTStock Repurchase Agreement |
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STOCK REPURCHASE AND SETTLEMENT AGREEMENT
THIS STOCK PURCHASE AND SETTLEMENT AGREEMENT (“Agreement”), dated as of June 2, 2008 is by and among RUBICON FINANCIAL, INC., a Delaware corporation (“Rubicon”), AIS FINANCIAL, INC., a Florida corporation (“AIS”) and Marc Riviello (“Riviello”). Riviello and Rubicon shall sometimes be referred to individually as the “Party” and collectively as the “Parties.”
W I T N E S S E T H
WHEREAS, on or about June 15, 2007, the Parties entered into that certain Share Purchase Agreement (the “Purchase Agreement”), whereby Rubicon purchased 24 shares of AIS’s common stock (the “AIS Shares”), which represented approximately 24.9% of the outstanding shares of common stock in AIS at the time of the Purchase Agreement;
WHEREAS, the respective Boards of Directors of Rubicon and AIS and Riviello have determined that the transactions that occurred pursuant to the Purchase Agreement are no longer consistent with, and in furtherance of, their respective business strategies and goals primarily as a result of the SEC receivership and appointment of a receiver for North American Clearing, Inc., AIS’s sole clearing firm;
WHEREAS, Riviello desires to purchase the AIS Shares from Rubicon and each of the Parties desires to release the other Parties of their respective obligations, rights, covenants, and agreements under the Purchase Agreement and such other contemplated transactions, under the terms and conditions hereof;
NOW THEREFORE, in consideration of the promises and respective mutual agreements herein contained, it is agreed by and between the Parties hereto as follows:
ARTICLE 1.
SALE AND PURCHASE OF THE SHARES
0.1. Sale of the AIS Shares . Upon execution of this Agreement as provided in Section 3.1 hereto (the “Closing”), subject to the terms and conditions herein set forth, and on the basis of the representations, warranties and agreements herein contained, Rubicon shall sell to Riviello, and Riviello shall purchase from Rubicon, the AIS Shares.
1.2 Instruments of Conveyance and Transfer . At the Closing, Rubicon shall deliver a certificate or certificates representing the AIS Shares to Riviello sufficient to transfer all right, title and interest in the AIS Shares to Riviello.
1.3 Consideration and Payment for the AIS Shares . Rubicon shall transfer, assign, convey, and deliver to Riviello, or its designated representative, and Riviello shall purchase from Rubicon, the AIS Shares in exchange for (i) the return and cancellation of 100,000 shares of
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Rubicon’s common stock held by Riviello, and (ii) a six-month promissory note from Riviello payable to Rubicon in the amount of $100,000 in the form of Attachment A.
ARTICLE 2.
REPRESENTATIONS AND COVENANTS
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2.1 |
Rubicon hereby represents and warrants that: |
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(a) |
Rubicon shall transfer title, in and to the AIS Shares to Riviello free and clear of all liens, security interests, pledges, encumbrances, charges, restrictions, demands and claims, of any kind and nature whatsoever, whether direct or indirect or contingent. |
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(b) |
Rubicon warrants that other than Rubicon, no other individual or entity has any title or interest in the AIS Shares. |
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(c) |
Rubicon represents that it has the full power and authority to enter into and perform this Agreement and to execute, deliver and perform its obligations under this Agreement and consummate the transactions contemplated hereby. |
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(d) |
Rubicon owns 24 shares of AIS’s common stock, no par value, (the “Common Stock”), which represents approximately 24.9% of the issued and outstanding capital stock of AIS. Such Shares are owned free and clear of any lien, encumbrance, adverse claim, restriction on sale, transfer or voting (other than restrictions imposed by applicable securities laws), preemptive right, option or other right to purchase, and upon the consummation of the sale of the AIS Shares as contemplated hereby, Riviello will have good title to the AIS Shares, free and clear of any lien, encumbrance, adverse claim, restriction on sale, transfer or voting (other than restrictions imposed by applicable securities laws), preemptive right, option or other right to purchase. |
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(e) |
Rubicon has taken, or will take prior to the Closing, all actions necessary for the authorization, execution, delivery and performance of this Agreement. |
2.2 On the Closing Date as defined in Section 3.1 below, Rubicon shall deliver to Riviello a certificate representing the AIS Shares subject to no liens, security interests, pledges, encumbrances, charges, restrictions, demands or claims in any other party whatsoever, except as set forth in the legend on the certificate, which legend shall provide as follows:
THE SHARES (OR OTHER SECURITIES) REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933. THE SHARES MAY NOT BE SOLD OR TRANSFERRED IN
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THE ABSENCE OF SUCH REGISTRATION OR AN OPINION OF COUNSEL THAT AN EXEMPTION FROM REGISTRATION UNDER SUCH ACT IS AVAILABLE.
2.3. Riviello acknowledges that the AIS Shares will initially be “restricted securities” (as such term is defined in Rule 144 promulgated under the Securities Act of 1933, as amended (“Rule 144”), that the AIS Shares will include the foregoing restrictive legend, and, except as otherwise set forth in this Agreement, that the AIS Shares cannot be sold for a period of at least one year from the date of issuance unless registered with the United States Securities and Exchange Commission (“SEC”) and qualified by appropriate state securities regulators, or unless Riviello obtains written consent from AIS and otherwise complies with an exemption from such registration and qualification (including, without limitation, compliance with Rule 144).
2.7 Riviello acknowledges and agrees that Rubicon makes no other representations or warranties with respect to the AIS Shares or AIS.
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2.8 |
Riviello represents and warrants to Rubicon as follows: |
(a) Riviello has adequate means of providing for current needs and contingencies, has no need for liquidity in the investment, and is able to bear the economic risk of an investment in the AIS Shares sold by Rubicon. Riviello represents that he is able to bear the economic risk of the investment and at the present time could afford a complete loss of such investment. Riviello has had
