STOCK PURCHASE AGREEMENT
This stock purchase agreement ("Agreement") is made effective January
9, 2001 by and between Accesspoint Corporation, a Nevada corporation
("Accesspoint") and the purchaser(s) signatory hereto pursuant to the Signature
Page and Questionnaire ("Private Purchaser"). Accesspoint has received an offer
to purchase certain shares of common voting stock ("Shares") of Accesspoint by
Private Purchaser, and Accesspoint and Private Purchaser agree as set forth
herein and represent to each other with regard thereto as follows:
1. 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.
2. 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, Private Purchaser is purchasing the
Shares purely on a speculative basis and confirms that Private Purchaser has
been given no reason to believe that Private Purchaser will receive any return
on the purchase of Shares.
3. Private Purchaser has offered to purchase the number of Shares at a price per
share set forth on the Signature Page and Questionnaire which is attached
hereto, incorporated herein, and made a part hereof, for a total purchase price
as set forth on the Signature Page and Questionnaire. The purchase price shall
be payable in cash or cash equivalent representing immediately available funds
to the satisfaction of Accesspoint. Private 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.
4. Private Purchaser understands that Private 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. Private Purchaser
understands the speculative nature of investment in Accesspoint and that Private
Purchaser could lose Private Purchaser's entire purchase price payment.
5. Private Purchaser represents that it has been called to Private Purchaser's
attention that Private 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.
6. Private Purchaser acknowledges that Accesspoint has made available to Private
Purchaser or Private 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 Private
Purchaser and Private 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.
7. Private Purchaser and (if applicable) Private 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 Private Purchaser's
proposed investment in Accesspoint, and all such questions have been answered to
the complete satisfaction of Private Purchaser.
8. Private Purchaser acknowledges that a subsidiary of Accesspoint, Processing
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. ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇, AND PROCESSING
SOURCE INTERNATIONAL, ET al., filed as case number BC205489 in Superior Court,
Los Angeles County, California.
9. Private Purchaser represents that all of the information provided by Private
Purchaser or Private Purchaser's representatives to Accesspoint is true,
correct, accurate and current and that Private Purchaser is not subject to
backup withholding. Private Purchaser specifically represents that all of the
information provided on the Signature Page and Questionnaire is true, correct,
accurate and current.
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10. The personal, business and financial information of Private Purchaser, which
may have been provided to Accesspoint, if any, and in any form, is complete and
accurate, and presents a true statement of Private Purchaser's financial
condition.
11. Private Purchaser has adequate means of providing for Private Purchaser's
current needs and possible personal contingencies, and Private Purchaser has no
need in the foreseeable future to sell the Shares for which Private Purchaser
hereby subscribes. Private Purchaser is able to bear the economic risks of
Private Purchaser's purchase of Shares and, consequently, without limiting the
generality of the foregoing, Private Purchaser is able to hold Private
Purchaser's Shares for an indefinite period of time, and Private Purchaser has a
sufficient net worth to sustain a loss of Private Purchaser's entire investment
in Accesspoint in the event such loss should occur.
12. If Private Purchaser is an individual, Private Purchaser is 18 years of age
or older.
13. Private Purchaser understands that the Shares will not be trans-
ferable except under limited circumstances.
14. Private Purchaser is acquiring the Shares for Private Purchaser's own
account for investment with no present intention of dividing Private Purchaser's
interest with others or of reselling or otherwise disposing of all or any
portion of the same. Private Purchaser shall not engage in a distribution of the
Shares.
15. Private Purchaser has such knowledge and experience in financial and
business matters that Private Purchaser is capable of evaluating the merits and
risks of an investment in Accesspoint or (if applicable) Private Purchaser and
Private Purchaser's Representative, together, have such knowledge and experience
in financial and business matters that Private Purchaser and Private Purchaser's
Private Purchaser Representative are capable of evaluating the merits and risks
of the Prospective investment in Accesspoint. 16. The Shares will be acquired
for Private Purchaser's own account for investment in a manner which would not
require registration pursuant to the provisions of the Act, as amended, and
Private Purchaser does not now have any reason to anticipate any change in
Private Purchaser's circumstances or other particular occasion or event which
would cause Private Purchaser to sell or otherwise dispose of the Shares.
17. Private 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.
18. Private Purchaser hereby represents and warrants that Private Purchaser's
total purchase of Shares shall not exceed 10% of Private Purchaser's net worth
(exclusive of principal residence, mortgage thereon, home furnishings and
automobiles).
19. Private 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 Private Purchaser's minimum net
worth and annual income as established by the California Commissioner of
Corporations relating to Private 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 Private Purchaser's ability to be sophisticated
regarding the proposed purchase of shares.
20. Private Purchaser is not a member of the NASD or other self-regulatory
agency, which would require prior approval of a purchase of the shares.
21. Private Purchaser acknowledges that Private 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.
22. Private 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. Private Purchaser shall comply with Rule 144
and with all policies and procedures established by Accesspoint with regard to
Rule 144 matters. Private 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.
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23. 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.
24. Private Purchaser acknowledges that Private Purchaser is aware that there
are substantial restrictions on the transferability of the Shares. Because the
Shares will not, and Private Purchaser has no right to require that the Shares,
be registered pursuant to the provisions of the Act or otherwise, Private
Purchaser agrees not to sell, transfer, assign, pledge, hypothecate or otherwise
dispose of any Shares unless such sale is exempt from such registration pursuant
to the provisions of the Act. Private Purchaser further acknowledges that
Accesspoint has no obligation to assist Private Purchaser in obtaining any
exemption from any registration requirements Imposed by applicable law. Private
Purchaser also acknowledges that Private Purchaser shall be responsible for
compliance with all conditions on transfer imposed by the Commissioner for any
expenses incurred by Accesspoint for legal and accounting services in connection
with reviewing such a proposed transfer and issuing opinions in connection
therewith.
25. Private Purchaser understands and agrees that the following restrictions and
limitations are applicable to Private 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:
25.1. Private 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
25.2. 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.
26. Private Purchaser may not cancel, terminate, or revoke this Agreement, or
any agreement of Private Purchaser made hereunder, and this Agreement shall
survive the death, dissolution, or disability of Private Purchaser and shall be
binding upon the heirs, executors, administrators, successors and assigns of
Private Purchaser.
27. 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.
28. 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. Private 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
Private Purchaser hereby irrevocably consents and submits to the jurisdiction of
such courts for the purpose of any such suit, action or proceeding, and Private
Purchaser agrees that service of process on Private Purchaser in such
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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. Private 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
Private 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.
PRIVATE 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, Private 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 CORPORATION,
a Nevada corporation
By: /s/ ▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
----------------------------------------
▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇,
Chief Executive Officer
PRIVATE PURCHASER
[See Signature Page and Questionnaire]
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SIGNATURE PAGE AND QUESTIONAIRE TO STOCK PURCHASE AGREEMENT
DATED JANUARY 9, 2001, 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
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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.
4. 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
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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.
5. 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.
6. 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 9th day of January, 2001.
10,000 $0.78 $7,800.00
___________________ X ___________________ = ____________________
Number of Shares Purchase Price Total Purchase Price
Being Purchased Per Share
If the Investor is an INDIVIDUAL, and if purchased as JOINT
TENANTS, as TENANTS IN COMMON, or as COMMUNITY PROPERTY:
▇▇▇▇ ▇▇▇▇▇▇▇ ____________________________________________
-------------------------------
Print Name(s)
BY: /S/ ▇▇▇▇ ▇▇▇▇▇▇▇ ____________________________________________
-------------------------------
Signature(s) of Purchaser(s)
_______________________________ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
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Date Address
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