NEITHER THESE SECURITIES NOR THE SECURITIES INTO WHICH THESE SECURITIES ARE
EXERCISABLE HAVE BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION OR
THE SECURITIES COMMISSION OF ANY STATE IN RELIANCE UPON AN EXEMPTION FROM
REGISTRATION UNDER SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"),
AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR PURSUANT TO AN AVAILABLE
EXEMPTION FROM THE REGISTRATION REQUIREMENTS THEREUNDER AND IN COMPLIANCE WITH
APPLICABLE STATE SECURITIES OR BLUE SKY LAWS.
STOCK PURCHASE AGREEMENT
This stock purchase agreement ("Agreement") is made effective as of
October 21, 2000, between ACCESSPOINT CORPORATION, a Nevada corporation having
offices at 00 Xxxxxxxxx Xxxx Xxxxx, Xxxxx 000, Xxxxxx, XX 00000 (
"Accesspoint"), and Verve Ventures Inc., a Nevada corporation having offices at
000 00xx Xxxxxx, Xxxxxxxxx Xxxxx, Xxxxxxxxxx, 00000 (the "Purchaser").
1. Purchaser agrees to purchase from Accesspoint up to 200,000 shares
(the "Shares") of Accesspoint's Common Stock at a per share purchase price which
shall be calculated based upon the following formulas:
a) The purchase price during the first thirty days from the
effective date of this Agreement shall be One Dollar and
Fifty Cents ($1.50) per Share and the Purchaser shall be
entitled to purchase up the entire available amount of
200,000 Shares in block purchase commitments equaling a
minimum of One Hundred Thousand dollars ($100,000) per
purchase or $300,000 in the aggregate (the "Purchase
Price").
b) During the period between thirty one (31) days and
sixty (60) days from the effective date of this Agreement
the Purchaser shall be entitled to purchase the remaining
balance, if any, of available Shares at the lesser rate
of; i) 50% of the average of the closing prices of
Accesspoint's shares of Common Stock as quoted on the OTC
Bulletin Board (the "OTCBB") (or on such other United
States stock exchange or public trading market on which
the shares of the Accesspoint trade if, at the time of
purchase, they are not trading on the OTCBB) for the three
(3) consecutive trading days immediately preceding the
date Purchaser acquires Shares hereunder or; ii) Two
Dollars and Twenty Five cents ($2.25) per Share. In any
event at no time shall the purchaser be entitled to
purchase Shares below the floor purchase price of One
Dollar and Fifty Cents ($1.50) per Share
c) During the period between (61) days and (90) days
from the effective date of this Agreement the Purchaser
may be entitled to purchase the remaining balance, if any,
of available Shares at the lesser rate of; i) 50% of the
average of the closing prices of Accesspoint's shares of
Common Stock as quoted on the OTC Bulletin Board (the
"OTCBB") (or on such other United States stock exchange or
public trading market on which the shares of the
Accesspoint trade if, at the time of purchase, they are
not trading on the OTCBB) for the three (3) consecutive
trading days immediately preceding the date Purchaser
acquires Shares hereunder or; ii) Five Dollars and Fifty
Cents ($5.50) per Share. In any event at no time shall the
purchaser be entitled to purchase Shares below the floor
purchase price of One Dollar and Fifty Cents ($1.50) per
Share.
d) The Purchaser understands and agrees that during the above
period ("c") Accesspoint in its sole discretion reserves
the right to accept or reject this subscription for the
Shares, in whole or in part, prior to receipt by the
Accesspoint of the purchase price, or any applicable
portion thereof herein.
1.2 COVENANT OF BEST EFFORTS. The Purchaser agrees to use its
best efforts to purchase the Shares in accordance with the above schedule.
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2. Accesspoint is a duly organized Nevada corporation. The Articles of
Incorporation of Accesspoint were filed on June 16, 1997. Accesspoint is
authorized by its Articles of Incorporation to issue up to 25,000,000 shares of
common voting stock.
3. Neither Accesspoint nor any of its officers, directors, employees,
agents or representatives have made any representation or statement of opinion
regarding the value of Accesspoint or the Shares, Purchaser is purchasing the
Shares purely on a speculative basis and confirms that Purchaser has been given
no reason to believe that Purchaser will receive any return on the purchase of
Shares.
4. Purchaser has offered to purchase the number of Shares at a price
per share as set forth herein. The purchase price shall be payable in cash or
cash equivalent representing immediately available funds to the satisfaction of
Accesspoint. Purchaser shall pay the purchase price prior to the issuance of the
Shares. The Shares may be sold from authorized but unissued shares of
Accesspoint, treasury shares held by Accesspoint, or shares held by a third
party for the benefit of Accesspoint.
5. Purchaser understands that Purchaser must bear the economic risk of
the investment for an indefinite period of time because the Shares will be
restricted and no public market will exist for the Shares. Purchaser understands
the speculative nature of investment in Accesspoint and that Purchaser could
lose Purchaser's entire purchase price payment.
6. Purchaser represents that it has been called to Purchaser's
attention that Purchaser's proposed investment in Accesspoint involves a high
degree of risk which may result in the loss of the total amount of that
investment.
7. Purchaser acknowledges that Accesspoint has made available to
Purchaser or Purchaser's personal advisors the opportunity to obtain any and all
information required to evaluate the merits and risks of purchase of the shares,
The Accesspoint has, prior to the sale of the Shares, accorded Purchaser and
Purchaser's representative, if any, the opportunity to ask questions and receive
answers concerning the terms and conditions of the proposed purchase and to
obtain any additional information necessary to evaluate the merits and risks of
the purchase.
8. Purchaser and (if applicable) Purchaser's personal advisors and
representatives have had an opportunity to ask questions of and receive
satisfactory answers from Accesspoint, or any person or persons acting on
Accesspoint's behalf, concerning the terms and conditions of Purchaser's
proposed investment in Accesspoint, and all such questions have been answered to
the complete satisfaction of Purchaser.
9. Purchaser acknowledges that a subsidiary of Accesspoint, Process-
ing Source International, Inc. ("PSI"), and certain officers of PSI, are subject
to a stipulated judgment and permanent injunction in an action captioned
CARDSERVICE INTERNATIONAL, INC. V. XXXXXXX XXXX, XXXXXX XXXXXX, AND PROCESSING
SOURCE INTERNATIONAL, ET al., filed as case number BC205489 in Superior Court,
Los Angeles County, California.
10. Purchaser represents that all of the information provided by
Purchaser or Purchaser's representatives to Accesspoint is true, correct,
accurate and current and that Purchaser is not subject to backup withholding.
Purchaser specifically represents that all of the information provided on the
Signature Page and Questionnaire which is attached hereto, incorporated herein,
and made a part hereof, is true, correct, accurate and current.
11. The personal, business and financial information of Purchaser which
may have been provided to Accesspoint, if any, and in any form, is complete and
accurate, and presents a true statement of Purchaser's financial condition.
12. Purchaser has adequate means of providing for Purchaser's current
needs and possible personal contingencies, and Purchaser has no need in the
foreseeable future to sell the Shares for which Purchaser hereby subscribes.
Purchaser is able to bear the economic risks of Purchaser's purchase of Shares
and, consequently, without limiting the generality of the foregoing, Purchaser
is able to hold Purchaser's Shares for an indefinite period
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of time, and Purchaser has a sufficient net worth to sustain a loss of
Purchaser's entire investment in Accesspoint in the event such loss should
occur.
13. If Purchaser is an individual, Purchaser is 18 years of age or
older.
14. Purchaser understands that the Shares will not be
transferable except under limited circumstances.
15. Purchaser is acquiring the Shares for Purchaser's own account for
investment with no present intention of dividing Purchaser's interest with
others or of reselling or otherwise disposing of all or any portion of the same.
Purchaser shall not engage in a distribution of the Shares.
16. Purchaser has such knowledge and experience in financial and
business matters that Purchaser is capable of evaluating the merits and risks of
an investment in Accesspoint or(if applicable) Purchaser and Purchaser's
Representative, together, have such knowledge and experience in financial and
business matters that Purchaser and Purchaser's Purchaser Representative are
capable of evaluating the merits and risks of the Prospective investment in
Accesspoint.
17. The Shares will be acquired for Purchaser's own account for
investment in a manner which would not require registration pursuant to the
provisions of the Act, as amended, and Purchaser does not now have any reason to
anticipate any change in Purchaser's circumstances or other particular occasion
or event which would cause Purchaser to sell or otherwise dispose of the Shares.
18. Purchaser understands that the Commissioner of Corporations
for the State of California or any other state ("Commissioner") has not or will
not recommend or endorse a purchase of the Shares.
19. Purchaser hereby represents and warrants that Purchaser's total
purchase of Shares shall not exceed 10% of Purchaser's net worth (exclusive of
principal residence, mortgage thereon, home furnishings and automobiles).
20. Purchaser: (i) has a pre-existing personal or business relationship
with Accesspoint, its officers, directors or its Affiliates or representatives,
AND (ii) meets those certain standards involving Purchaser's minimum net worth
and annual income as established by the California Commissioner of Corporations
relating to Purchaser's income and net worth, or is an Accredited Investor as
defined in rule 501 (a) of Regulation D as promulgated by the Securities and
Exchange Commission. The foregoing income and net worth is considered to be
indicative of Purchaser's ability to be sophisticated regarding the proposed
purchase of shares.
21. Purchaser is not a member of the NASD or other self-regulatory
agency which would require prior approval of a purchase of the shares.
22. Purchaser acknowledges that Purchaser understands the meaning and
legal consequences of the representations, warranties, and covenants set forth
herein, and that Accesspoint has relied on such representations, warranties and
covenants.
23. Purchaser acknowledges and understands that the Shares will be
subject to transfer and sale restrictions imposed pursuant to SEC Rule 144 of
the Rules promulgated under the Securities Act of 1933 ("Act") and the
regulations promulgated thereunder. Purchaser shall comply with Rule 144 and
with all policies and procedures established by Accesspoint with regard to Rule
144 matters. Purchaser acknowledged that Accesspoint or its attorneys or
transfer agent may require a restrictive legend on the certificate or
certificates representing the Shares pursuant to the restrictions on transfer of
the Shares imposed by Rule 144.
24. Notwithstanding anything in this Agreement to the contrary, the
undersigned Acknowledges that: (i) the Shares are subject to restrictions on
transfer or sale imposed pursuant to Rule 144; (ii) the Shares are being
purchased in a private transaction which is not part of a distribution of the
Shares; (iii) the undersigned intends to hold the Shares for the account of the
undersigned and does not intend to sell the shares as a part of a distribution
or otherwise; and (iv) neither the undersigned nor the seller of the Shares is
an underwriter for purposes of Rule 144. A legend regarding Rule 144
restrictions may be placed upon the certificate evidencing ownership of the
Shares.
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25. PIGGY-BACK REGISTRATIONS. If Accesspoint shall prepare and file
with the SEC within one (1) year after the effective date of this Agreement a
registration statement relating to an offering for its own account or the
account of others under the Securities Act of any of its equity securities,
other than on Form S-4 or Form S-8 (each as promulgated under the Securities
Act) or their then equivalents relating to equity securities to be issued solely
in connection with any acquisition of any entity or business or equity
securities issuable in connection with stock option or other employee benefit
plans, then the Company shall send to Purchaser written notice of such
determination and, if within twenty (20) days after receipt of such notice,
Purchaser shall so request in writing, Accesspoint shall commence to include in
such registration statement all or any part of the Shares such holder requests
to be registered, subject to the cooperation of Purchaser as set forth herein.
If any registration of Accesspoint pursuant to this Section is for a registered
public offering involving an underwriting, the right of Purchaser to
registration shall be conditioned upon Purchaser entering into an underwriting
agreement, and/or such other agreements as may be reasonably required, in
customary forms with the representatives of the underwriters or underwriters or
other parties. Purchaser shall timely pay all registration fees and blue sky
fees pertaining to the registration or qualification of the Shares of Purchaser
proposed to be registered hereunder. Purchaser shall cooperate with Accesspoint
(and underwriters, representatives of the underwriters, and other parties, if
any) and promptly provide Accesspoint with reasonably required information,
including, but not limited to information regarding Purchaser's plan of
distribution pertaining to the Shares. Purchaser shall further promptly provide
Accesspoint with such information and promptly execute, acknowledge and deliver
such instruments and documents as Accesspoint may reasonably require to include
the Shares in any such registration statement. The obligation of Accesspoint to
provide piggy back registration rights hereunder shall be expressly conditioned
upon Purchaser timely paying fees, cooperating with Accesspoint and other
parties, promptly providing information, and/or executing, acknowledging and
delivering instruments or documents as set forth herein.
26. Purchaser understands and agrees that the following restrictions
and limitations are applicable to Purchaser's purchase and any sale, transfer,
assignment, pledge, hypothecation or other disposition of Shares pursuant to
Section 4(2) of the Act and Regulation D promulgated pursuant thereto:
26.1. Purchaser agrees that notwithstanding any other restrictions
placed on the sale or transfer of the Shares pursuant to this Agreement, Rule
144, or otherwise, the Shares shall not be sold, pledged, hypothecated or
otherwise disposed of unless the Shares are registered pursuant to the Act and
applicable state securities laws or are exempt therefrom; and
26.2. A legend in substantially the following form may be placed
on any certificate(s) or other documents evidencing the Shares:
THE SECURITIES REPRESENTED BY THIS INSTRUMENT OR DOCUMENT HAVE BEEN
ACQUIRED FOR INVESTMENT ONLY AND HAVE NOT BEEN REGISTERED PURSUANT TO
THE PROVISIONS OF THE SECURITIES ACT OF 1933 AS AMENDED ("ACT"), AND
HAVE BEEN OFFEREDAND SOLD IN RELIANCE UPON THE EXEMPTION SET FORTH IN
SECTIONS 4(1) OR 4(2) OF THE ACT AND UPON RULE 504 OF REGULATION D
PROMULGATED PURSUANT THERETO. WITHOUT SUCH REGISTRATION, SUCH
SECURITIES MAY NOT BE SOLD, TRANSFERRED, ASSIGNED, PLEDGED,
HYPOTHECATED OR OTHERWISE DISPOSED OF, EXCEPT UPON DELIVERY TO
ACCESSPOINT OF AN OPINION OF COUNSEL SATISFACTORY TO ACCESSPOINT THAT
REGISTRATION IS NOT REQUIRED FOR SUCH TRANSFER OR THE SUBMISSION TO
ACCESSPOINT OF SUCH OTHER EVIDENCE AS MAY BE SATISFACTORY TO
ACCESSPOINT TO THE EFFECT THAT ANY SUCH TRANSFER SHALL NOT BE IN
VIOLATION OF THE ACT, APPLICABLE STATE SECURITIES LAWS OR ANY RULE OR
REGULATION PROMULGATED THEREUNDER.
27. Purchaser may not cancel, terminate, or revoke this Agreement, or
any agreement of Purchaser made hereunder, and this Agreement shall survive the
death, dissolution, or disability of Purchaser and shall be binding upon the
heirs, executors, administrators, successors and assigns of Purchaser.
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28. This Agreement constitutes the entire agreement among the parties
hereto with respect to the subject matter hereof and may be amended only by a
writing executed by all parties hereto.
29. This Agreement shall be enforced, governed and construed in all
respects in accordance with the laws of the State of California without giving
effect to the conflicts of laws provisions. Purchaser hereby agrees that any
suit, action or proceeding with respect to this Agreement, any amendments or any
replacements hereof, and any transactions relating hereto shall be brought in
the state courts of, or the federal courts in, the State of California, and
Purchaser hereby irrevocably consents and submits to the jurisdiction of such
courts for the purpose of any such suit, action or proceeding, and Purchaser
agrees that service of process on Purchaser in such suit, action or proceeding
may be made In accordance with the notice provisions of this Agreement, In any
such action, venue shall lie exclusively in Orange County, California. Purchaser
hereby waives, and agrees not to assert against Accesspoint, or any successor
assignee thereof, by way of motion, as a defense or otherwise, in any such suit,
action or proceeding, (i) any claim that Purchaser is not personally subject to
the jurisdiction of the above-named courts or that property is exempt or immune
from set-off, execution or attachment either prior to judgment or in execution
thereof, and (ii) to the extent permitted by applicable law, any claim that such
suit, action or proceeding is brought in an inconvenient forum or that the venue
of suit, action or proceeding is improper or that this Agreement or any
amendments or any replacements hereof may not be enforced in, or by such courts.
THE SHARES OFFERED HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE "ACT"), OR THE SECURITIES LAWS OF CERTAIN STATES, AND ARE
BEING OFFERED AND SOLD IN RELIANCE ON AN EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE ACT AND SUCH LAWS. THE SHARES HAVE NOT BEEN APPROVED OR
DISAPPROVED BY THE SECURITIES AND EXCHANGE COMMISSION, ANY STATE SECURITIES
COMMISSION OR OTHER REGULATORY AUTHORITY.
PURCHASERS MAY BE REQUIRED TO HOLD THE SHARES INDEFINITELY UNLESS SUCH
SHARES ARE SUBSEQUENTLY REGISTERED UNDER THE SECURITIES ACTOF 1933 ("ACT") OR AN
EXEMPTION FROM SUCH REGISTRATION IS AVAILABLE. NO SHARES MAY BE SOLD, ASSIGNED
OR OTHERWISE TRANSFERRED UNLESS ACCESSPOINT AND ITS LEGAL COUNSEL HAVE RECEIVED
EVIDENCE SATISFACTORY TO BOTH THAT SUCH TRANSFER DOES NOT INVOLVE A TRANSACTION
REQUIRING QUALIFICATION OR REGISTRATION UNDER STATE OR FEDERAL SECURITIES LAWS
AND IS IN COMPLIANCE WITH SUCH LAWS.
IN WITNESS WHEREOF, Purchaser has provided the foregoing warranties and
undertaken the foregoing obligations and the parties have executed this
Agreement effective as of the date first set forth above.
ACCESSPOINT
Accesspoint Corporation, a Nevada corporation
By: /s/ XXX X. XXXXXXXXX
------------------------------------
Xxx X. Xxxxxxxxx,
Chief Executive Officer
PURCHASER
By: /s/ VERVE VENTURES
------------------------------------
Verve Ventures
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SIGNATURE PAGE AND QUESTIONAIRE TO STOCK PURCHASE AGREEMENT
DATED OCTOBER 21, 2000, AMONG ACCESSPOINT CORPORTION
AND THE SUBSCRIBER(S) NAMED BELOW
If applicable, the undersigned further represents and warrants as
indicated below by the undersigned's initials:
I. ACCREDITED INVESTOR STATUS
A. INDIVIDUAL INVESTORS: (Initial one or more of the following
three statements)
1. ____ I certify that I am an accredited investor
because I have had individual income (exclusive of
any income earned by my spouse) of more than
US$200,000 in each of the most recent two years and I
reasonably expect to have an individual income in
excess of US$200,000 for the current year.
2. ____ I certify that I am an accredited investor
because I have had joint income with my spouse in
excess of US$300,000 in each of the two most recent
years and I reasonably expect to have joint income
with my spouse in excess of $300,000 for the current
year.
3. ____ I certify that I am an accredited investor
because I have an individual net worth, or my spouse
and I have a joint net worth, in excess of
US$1,000,000.
B. PARTNERSHIPS, CORPORATIONS, TRUSTS OR OTHER ENTITIES:
(Initial one of the following statements)
1. The undersigned hereby certifies that it is an
accredited investor because it is:
________ a. an employee benefit plan whose total assets exceed
US$5,000,000;
________ b. an employee benefit plan whose investment decisions
are made by a plan fiduciary which is either a bank,
savings and loan association or an insurance company
(as defined in Section 3(a) of the Securities
Act) or an investment adviser registered as such
under the Investment Advisers Acts of 1940;
________ c. a self-directed employee benefit plan, including
an Individual Retirement Account, with investment
decisions made solely by persons that are accredited
investors;
________ d. an organization described in Section 501(c)(3) of
the Internal Revenue Code of 1986, as amended (the
"IRC"), not formed for the specific purpose of
acquiring the Shares with total assets in excess of
US$5,000,000;
________ e. any corporation, partnership or Massachusetts or
similar business trust, not formed for the specific
purpose of acquiring the Shares, with total assets in
excess of US$5,000,000; or
________ f. a trust with total assets in excess of US$5,000,000,
not formed for the specific purpose of acquiring
the Shares, whose purchase is directed by a person
who has such knowledge and experience in financial
and business matters that he is capable of evaluating
the merits and risks of an investment in the Shares.
2. The undersigned hereby certifies that it is an
accredited investor because it is an entity in which
each of the equity owners qualifies as an accredited
investor under items A(1), (2) or (3) or item B(1)
above.
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3. INDEMNIFICATION. The undersigned agrees, to the fullest
extent permitted pursuant to law, to indemnify, defend, and hold harmless
Accesspoint Corporation and its agents, representatives and employees from and
against all liability, damage, loss, cost and expense (including reasonable
attorneys' fees) which they may incur by reason of the failure of the
undersigned to fulfill any of the terms or conditions of the Stock Purchase
Agreement or this Signatory Page and Questionnaire, or by reason of any
inaccuracy or omission in the information furnished by the undersigned herein or
any breach of the representations and warranties made by the undersigned herein
or in connection with the Memorandum, or in any document provided by the
undersigned, directly or indirectly, to Accesspoint Corporation.
4. RULE 144. Notwithstanding anything in this Agreement to the
contrary, the undersigned Acknowledges that: (i) the Shares are subject to
restrictions on transfer or sale imposed pursuant to Rule 144 promulgated under
the Securities Act of 1933; (ii) the Shares are being purchased in a private
transaction which is not part of a distribution of the Shares; (iii) the
undersigned intends to hold the Shares for the account of the undersigned and
does not intend to sell the shares as a part of a distribution or otherwise; and
(iv) neither the undersigned or the seller of the Shares is an underwriter for
purposes of Rule 144. A legend regarding Rule 144 restrictions may be placed
upon the certificate evidencing ownership of the Shares.
5. STOCK PURCHASE AGREEMENT. This Signatory Page and
Questionnaire is a part of that certain Stock Purchase Agreement by and between
the undersigned and Accesspoint Corporation. This Signatory Page and
Questionnaire is incorporated by reference into the Stock Purchase Agreement,
and the Stock Purchase Agreement is incorporated by reference into this
Signatory Page and Questionnaire.
IN WITNESS WHEREOF, the Investor has executed this Securities
Purchase Agreement this 21st day of October, 2000.
If the Investor is a PARTNERSHIP, CORPORATION or TRUST:
Verve Ventures
------------------------------------------------
Name of Partnership,
Corporation or Trust
October 21, 2000
---------------------------------
Date
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