EXHIBIT 1.2
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 MAY NOT BE
OFFERED, SOLD OR OTHERWISE TRANSFERRED, ASSIGNED, PLEDGED OR HYPOTHECATED UNLESS
AND UNTIL REGISTERED UNDER THE ACT OR THE SECURITIES LAWS OF CERTAIN STATES OR
UNLESS AN EXEMPTION THEREFROM IS AVAILABLE.
STOCK PURCHASE AGREEMENT
This stock purchase agreement ("Agreement") is executed on May 11, 2000, and
made effective for valuation purposes as of April 17, 2000, by and between
Accesspoint Corporation ("Accesspoint") and Starlight International Holdings
Limited ("Starlight"). Accesspoint and Starlight agree as set forth herein and
represent to each other with regard thereto as follows:
1. Starlight shall, subject to the terms and conditions of this Agreement,
purchase three hundred thousand (300,000) shares of common voting stock of
Accesspoint ("Shares") at the price of Three Dollars and 50/100 ($3.50) per
share for a total unadjusted purchase price of One Million Fifty Thousand
Dollars and 00/100 ($1,050,000.00).
2. The purchase price shall be payable in cash or cash equivalent representing
immediately available funds to the satisfaction of Accesspoint. Starlight may
deliver the purchase price via electronic funds transfer. Starlight shall pay
the purchase price, and good and immediately available funds shall be confirmed
to the account of Accesspoint, prior to the issuance of the Shares and,
immediately upon the receipt of such funds, a stock certificate evidencing
Starlight's ownership of the Shares shall be delivered to Starlight or its
representative.
3. If, for a period of sixty (60) days after the successful registration of the
Shares issued hereunder (or, in the event there is no successful registration of
the Shares, then within sixty (60) days following the date that Starlight can
lawfully begin to sell such Shares in the United States pursuant to this
Agreement and applicable law), the average of closing prices for the common
stock of Accesspoint for a period consisting of seven (7) consecutive trading
days falls below Three Dollars and 75/100 ($3.75) per Share, Accesspoint shall,
as a price protection penalty (and without further consideration from
Starlight), issue an additional seventy-five thousand (75,000) shares of common
voting stock to Starlight, and such shares shall be deemed to constitute part of
the Shares hereunder. Notwithstanding the foregoing, the parties hereby agree
that the penalty set forth in this Section 3 shall be applicable only upon the
first instance of Accesspoint's shares falling below Three Dollars and 75/100
($3.75) per share, and is not intended to apply upon any subsequent occurrence
of its share price falling below such amount.
4. Accesspoint shall, subject to the terms and conditions of this Agreement,
use its best reasonable commercial efforts to cause an appropriate registration
statement for the registration of the Shares to be filed with the U.S.
Securities and Exchange Commission within thirty (30) days of the issuance of
the Shares hereunder. Accesspoint shall further, subject to the terms and
conditions of this Agreement, use its best reasonable commercial efforts to
cause the registration statement to become effective, and the Shares to become
registered, within one hundred and twenty (120) days of the date of filing of
the registration statement. As a penalty to Accesspoint
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for late registration, Accesspoint shall issue to Starlight (without further
consideration therefor) an additional amount of common voting shares equal to
five percent (5%) of the number of Shares originally issued hereunder, or
fifteen thousand (15,000) shares, for each thirty (30)-day period that the
registration statement remains ineffective past the one hundred twenty (120) day
period set forth above, and such shares shall be deemed to constitute part of
the Shares hereunder. The above penalty shares issuance shall be prorated on a
daily basis over any such thirty (30) day period.
5. The obligations of Accesspoint to register the Shares hereunder shall be
subject to the following provisions:
5.1 With respect to the obligation of Accesspoint to register the shares
purchased by Starlight hereunder, the parties hereby agree with each other as
follows:
(a) the registration rights granted to Starlight in connection with the
Shares purchased hereunder shall apply equally to any and all shares
delivered to Starlight as a penalty pursuant to Sections 3 and 4 above,
and 5.1(c) below (all of such shares being sometimes referred to
collectively as the "Registrable Shares"), provided, however, that this
Agreement is not intended to create any obligation of Accesspoint to
register any Registrable Shares received by Starlight pursuant to the
provisions of Section 5.1(b)(C) below to the extent that such
Registrable Shares are received subsequent to the initial filing for
registration of Shares on behalf of Starlight as contemplated herein
except through "piggy-backing" as a part of any subsequent registration
of Accesspoint's shares (regardless of the form of Registration
Statement used by Accesspoint), and the piggy-back rights granted
herein shall continue in full force and effect util such time as all
Registrable Shares owned by Starlight have been so registered or
otherwise sold by Starlight pursuant to an applicable exemption
therefrom;
(b) in the event that (i) Accesspoint (if the registration with respect to
which such rights pertain is a self-underwritten offering), or (ii) the
managing underwriter selected by Accesspoint to manage such
registration if such registration is underwritten, shall provide
written notification to Starlight that it has determined in good faith
that market or other factors render necessary or advisable a lock-up on
the number of Registrable Shares which may thereafter be freely traded
by Starlight upon completion of such registration, then, except as
expressly agreed herein, Starlight shall not sell, dispose of, loan,
pledge or grant any rights with respect to (collectively, a
"Disposition") any of such Registrable Shares (the "Lock-up") for a
period commencing on the effective date of the registration statement
applicable thereto and continuing to the date which is 180 days after
the date such registration statement is declared effective by the U.S.
Securities and Exchange Commission (the "Lock-up Period").
Notwithstanding the foregoing, the following shall apply:
(A) the Lock-up shall not be applicable in respect of any Disposition
made by Starlight (I) as a bona fide gift or gifts, provided the
donee or donees
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thereof agree in writing to be bound by this restriction, (II) as
a distribution to partners or shareholders of Starlight, provided
that the distributees thereof agree in writing to be bound by the
terms of this restriction, (III) in any Disposition conducted in
accordance with the provisions of Regulation S or Regulation D and
which could have been effected thereunder without such Registrable
Shares having been registered with the US Securities and Exchange
Commission, or (IV) Dispositions made with the prior written
consent of the Company or the managing underwriter, as applicable;
(B) no more than one hundred and fifty thousand (150,000) Registrable
Shares in the aggregate shall be subject to the Lock-up; and
(C) as compensation to Starlight for its agreement to be bound by the
Lock-up provisions contained in this Section 5, Accesspoint will
issue to Starlight an additional number of shares equal to five
percent (5%) of those Registrable Shares as to which the Lock-up
contemplated herein applies for each thirty (30)-day period that
such Lock-up shall apply.
5.2 Starlight, and its affiliates, assigns or agents, shall use its best
commercially-reasonable efforts promptly to provide Accesspoint, its attorneys
and any underwriter with such non-confidential and non-proprietary information
as any of them may reasonably request in order to prepare the registration
statement. The material failure of Starlight to promptly and fully provide any
such information shall relieve Accesspoint of the obligation to file or cause to
be made effective any registration statement hereunder.
5.3 Starlight, and its affiliates, assigns or agents, shall use its best
commercially-reasonable efforts promptly to cooperate with Accesspoint, its
attorneys and any underwriter, and perform such acts and execute, acknowledge
and deliver such documents and instruments as may deemed reasonably necessary by
Accesspoint, its attorneys or any underwriter, with regard to the preparation
and filing of the registration statement. Failure to promptly and fully provide
any such cooperation or perform such acts or execute, acknowledge and deliver
such documents or instruments shall relieve Accesspoint of the obligation to
file or cause to be made effective any registration statement hereunder.
5.4 Accesspoint shall be responsible for reasonable and necessary expenses
incurred by it in connection with the preparation of the registration statement,
including, without limitation, Accesspoint's legal, accounting and filing fees,
but not including fees and disbursements for consultants, experts or legal,
accounting or valuation services retained by Starlight, or underwriting
discounts or commissions agreed to be paid by Starlight in writing.
6. Accesspoint hereby makes the following representations and warranties to
Starlight in connection with the offer and sale of the Registrable Securities as
set forth herein, which representations and warranties are being materially
relied upon by Starlight in making its decision to make an investment in the
Shares (the parties hereby agree that the following representations and
warranties are qualified, in their entirety, by the principle that the failure
to
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disclose any item below shall not be a breach of this Agreement, provided that
the item or items not disclosed do not, and could not reasonably have been
foreseen to, cause a materially adverse effect upon the business, assets,
properties, prospects or financial condition of Accesspoint, either individually
or in the aggregate):
(a) All of the Registrable Shares, once issued by Accesspoint against delivery
by Starlight of the Purchase Price as contemplated herein shall be validly-
issued, fully-paid and non-assessable, and free and clear of all liens,
encumbrances, security agreements, equities, options, claims, defects in
title, and charges (excluding Rule 144 restrictions and legend restrictions
as set forth herein). Accesspoint has all requisite power and authority to
execute and deliver this Agreement and to consummate the transaction
contemplated herein.
(b) As of the date of this Agreement, the number of shares of common stock of
Accesspoint which are issued and outstanding is _________________ (or
_____________, on a fully-diluted basis); and as of the closing of this
share purchase transaction, the Shares purchased by Starlight hereunder
(without giving effect to any of the other Registrable Shares) will
represent approximately two percent (2%) of the total shares of Accesspoint
issued and outstanding as of the date thereof.
(c) Accesspoint has the full legal right and power and all authority and
approval required to enter into, execute and deliver this Agreement, and to
issue, sell, assign, transfer and convey the Shares and the other
Registrable Shares, as applicable, and to perform fully its obligations
hereunder. This Agreement has been duly executed and delivered by
Accesspoint and, assuming due execution and delivery by, and enforceability
against, Starlight, this Agreement constitutes the valid and binding
obligation of Accesspoint, enforceable against it in accordance with its
terms, subject to the qualifications that enforcement of the rights and
remedies created hereby is subject to (i) bankruptcy, insolvency,
reorganization, moratorium and other laws of general application affecting
the rights and remedies of creditors, and (ii) general principles of equity
(regardless of whether such enforcement is considered in a proceeding in
equity or at law). No approval or consent of, or filing with, any
governmental or regulatory body, and no approval or consent of, or filing
with, any other person is required to be obtained by Accesspoint, or in
connection with the execution and delivery hereof by Accesspoint of this
Agreement, or the consummation and performance by it of the transactions
and obligations contemplated hereby, other than the approval of its Board
of Directors prior to taking any of such actions. Each person signing this
Agreement on behalf of Accesspoint is the duly elected officer of such
corporation, holding the position indicated by such person's name on the
signature page hereof, and each such person has full corporate authority to
execute and deliver to Starlight, and to cause the entry into and
performance of, this Agreement which, once so executed and delivered, will
constitute the legally binding agreement of Accesspoint, enforceable
against it in accordance with its terms (subject to the applicability of
the equitable principles described above).
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The execution, delivery and performance of this Agreement by Accesspoint of
the transactions contemplated hereby in accordance with the terms and
conditions hereof, will not:
(i) violate, conflict with or result in the breach of any of the
terms of, or constitute (or with notice or lapse of time or both
would constitute) a default under, any contract, lease,
agreement or other instrument or obligation to which Accesspoint
is a party or by or to which any of the properties and assets of
Accesspoint may be bound or subject;
(ii) violate any order, judgment, injunction, award or decree of any
court, arbitrator, governmental or regulatory body, by which
Accesspoint, or its securities, assets, properties or business
is bound; or
(iii) violate any applicable statute, law or regulation, or any
charter document or bylaws of Accesspoint or its subsidiary
corporations, Processing Services International, Inc. and Black
Sun Graphics, Inc., both California corporations (collectively,
the "Subsidiary").
(d) Accesspoint is a corporation duly organized, validly existing and in
good standing under the laws of the State of Nevada. Accesspoint has
the power to own or lease its properties and assets and to carry on its
business as now being conducted. Accesspoint is duly qualified to do
business and is in good standing in each jurisdiction in which the
character or location of the properties owned or leased by it, or the
nature of the business conducted by it, makes such qualification
necessary. Accesspoint has no corporate subsidiaries other than the
Subsidiary.
(e) The corporate minute books of Accesspoint and the Subsidiary contain
accurate records of all meetings of, and corporate action taken by
(including action taken by written consent) the shareholders and Board
of Directors of Accesspoint and the Subsidiary, as applicable.
Accesspoint does not have any of its records, systems, controls, data
or information recorded, stored, maintained, operated or otherwise
wholly or partly dependent upon or held by any means (including any
electronic, mechanical or photographic process, whether computerized or
not) which (including all means of access thereto and therefrom) are
not under its exclusive ownership or right to use, and direct control.
(f) There is no action, suit, proceeding at law or in equity, arbitration
or administrative or other proceeding by or before any governmental or
other instrumentality or agency pending or, to the best knowledge of
Accesspoint after due investigation and inquiry, threatened against, or
affecting Accesspoint or the Subsidiary, or any officer, director or
employee thereof, other than such items which are insignificant and
immaterial and which do not adversely affect (i) the right or ability
of Accesspoint to carry on its business as now conducted; (ii) the
condition, whether financial or otherwise, of any material Accesspoint
property; or (iii) the consummation of the transactions contemplated
hereby. There are no
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outstanding orders, judgments, injunctions, awards or decrees of any
court, governmental or regulatory body or arbitration tribunal by which
Accesspoint, or the Subsidiary, or any officer, director or employee
thereof, or their respective securities, assets, properties or
businesses, is bound other than any such items which are insignificant
and immaterial and which do not and will not adversely affect (i) the
right of Accesspoint to carry on its business as now conducted and as
proposed to be conducted after consummation of the transactions
contemplated by this Agreement; (ii) the condition, whether financial
or otherwise, of any material property belonging to Accesspoint or the
Subsidiary; or (iii) the consummation of the transactions contemplated
hereby.
(g) Accesspoint has filed with the US Securities and Exchange Commission,
and every state securities division where such filing is applicable,
all filings required to be made by it through the date of this
Agreement, which filings include, without limitation, a Current Report
on Form 8-K in connection with its merger with J.S.J. Capital III,
Inc., as amended (collectively, the "Filings"). No such Filing contains
any untrue statement of a material fact, or omits any statement of
material fact necessary in order to make the statements contained
therein not misleading. There is no fact known to Accesspoint which
could materially and adversely affect the business, prospects or
financial condition of Accesspoint or the Subsidiary, or their
respective properties or assets, which has not been adequately
disclosed in the Filings, in this Agreement, or in any Disclosure
Schedule attached hereto or otherwise delivered to Starlight at or
prior to the closing of the transactions contemplated hereby. Since the
date of Accesspoint's audited financial statements for the period ended
December 31, 1999 (the "Audited Statement"), except as may otherwise be
or have been disclosed as contemplated above, Accesspoint and the
Subsidiary have not, on a consolidated basis,:
(i) incurred any liability or obligation of any nature (whether
accrued, absolute, contingent or otherwise), except liabilities
and obligations in the ordinary course of business and
consistent with past practice, resulting in an increase for the
liabilities shown on the Audited Statement of more than One
Hundred Thousand Dollars ($100,000) in the aggregate;
(ii) permitted any of its assets to be subjected to any mortgage,
pledge, lien, security interest, encumbrance, restriction or
charge of any kind (other than liens incurred in the ordinary
course of business);
(iii) sold, transferred or otherwise disposed of any assets except
inventory sold in the ordinary course of business and consistent
with past practice;
(iv) made any single capital expenditure or commitment therefor, in
excess of One Hundred Thousand Dollars ($100,000), or made
aggregate capital expenditures and commitments therefor in
excess of Three Hundred Thousand Dollars ($300,000);
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(v) declared or paid any dividend or made any distribution on any shares
of its capital stock, or redeemed, purchased or otherwise acquired
any shares of its capital stock or any option, warrant or other right
to purchase or acquire any such shares;
(vi) made any bonus or profit sharing distribution or payment of any kind;
(vii) increased its indebtedness for borrowed money, or made any loan to
any person;
(viii) written off as uncollectible any notes or accounts receivable, except
immaterial write-downs or write-offs in the ordinary course of
business and consistent with past practice which do not exceed One
Hundred Thousand Dollars ($100,000) in the aggregate charged to
applicable reserves, and none of which individually or in the
aggregate is material to Accesspoint on a consolidated basis;
(ix) granted any increase in the rate of wages, salaries, bonuses or other
remuneration or benefits of any executive employee or other employees
or consultants, and no such increase is customary on a periodic basis
or required by agreement or understanding;
(x) canceled or waived any claims or rights of substantial value;
(xi) made any change in any method of accounting or auditing practice;
(xii) otherwise conducted its business or entered into any transaction,
except in the usual and ordinary manner and in the ordinary course of
business and consistent with past practices;
(xiii) paid, discharged or satisfied any claims, liabilities or obligations
(absolute, accrued, contingent or otherwise) other than the payment,
discharge or satisfaction in the ordinary course of business and
consistent with past practice of liabilities and obligations
reflected and reserved against in the Audited Statement or incurred
in the ordinary course of business and consistent with past practice
since such date;
(xiv) paid, loaned or advanced any amount to, or sold, transferred or
leased any properties or assets (real, personal or mixed, tangible or
intangible to, or entered into any agreement or arrangement of any
kind with, any of its officers, directors or shareholders or any
affiliate or associate of its officers, directors or shareholders,
except compensation to officers at rates not exceeding the rate of
compensation in effect as of the date of the Audited Statement;
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(xv) suffered any material adverse changes in its working capital,
financial condition, assets, liabilities (absolute, accrued,
contingent or otherwise), reserves, business operations or
prospects; or
(xvi) agreed, whether or not in writing, to do any of the foregoing.
7 The representations and warranties of Accesspoint contained in this
Agreement (including, without limitation, all schedules hereto) shall be
true and correct on and as of the date of the closing of the share purchase
transaction with the same effect as though such representations and
warranties had been made on and as of such date.
8. Neither Accesspoint, nor any of its officers, directors, employees, agents
or representatives, have made any representation or statement of opinion
regarding the value of the Shares. Starlight is purchasing the Shares
purely on a speculative basis and confirms that Starlight has been given no
reason to believe that Starlight will receive any return on the purchase of
Shares, other than as may be determinable from the Filings.
9. Starlight understands that Starlight must bear the economic risk of the
purchase for an indefinite period of time. Starlight acknowledges that the
Registrable Shares will be restricted unless and until registered.
Accesspoint makes no representation that any public market will exist for
the Shares and Accesspoint shall have no direct obligation to Starlight to
make or support any market for the Shares. Starlight understands the
speculative nature of investment in the Shares and that Starlight could
lose its entire purchase price payment.
10. Starlight acknowledges that Accesspoint has made available to Starlight or
Starlight's personal advisors the opportunity to obtain any and all
information required to evaluate the merits and risks of purchase of the
Shares. Accesspoint has, prior to the sale of the Shares, accorded
Starlight and Starlight'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.
11. Starlight and (if applicable) Starlight's advisors and representatives have
had an opportunity to ask questions of and receive satisfactory answers
from Accesspoint or any person or persons acting on its behalf, concerning
the terms and conditions of Starlight's proposed investment in the Shares,
and all such questions have been answered to the complete satisfaction of
Starlight and its advisors and representatives.
12. Starlight represents that all of the information provided by Starlight or
Starlight's representatives to Accesspoint is true, correct, accurate and
current and that Starlight is not subject to backup withholding. Starlight
specifically represents that all of the information provided in this
Agreement or on any separate signature page questionnaire is true, correct,
accurate and current.
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13. Starlight is an accredited investor. Starlight is a business entity not
formed for the specific purpose of acquiring the Shares and has total
assets in excess of Five Million Dollars (U.S. $5,000,000.00).
14. Starlight is acquiring the Shares for Starlight's own account for
investment with no present intention of dividing Starlight's interest with
others or of reselling or otherwise disposing of all or any portion of the
same. Starlight shall not engage in a distribution of the Shares.
15. Starlight has such knowledge and experience in financial and business
matters that Starlight is capable of evaluating the merits and risks of an
investment in the Shares, or (if applicable) Starlight and Starlight's
representatives, together, have such knowledge and experience in financial
and business matters that Starlight and Starlight's representatives are
capable of evaluating the merits and risks of the prospective investment in
the Shares.
16. The Shares will be acquired for Starlight's own account for investment in a
manner which would not require registration pursuant to the provisions of
the Act, as amended, and Starlight does not now have any reason to
anticipate any change in Starlight's circumstances or other particular
occasion or event which would cause Starlight to sell or otherwise dispose
of the Shares.
17. Starlight 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. Starlight: (i) has a pre-existing personal or business relationship with
Accesspoint or Accesspoint or its or their officers, directors or its or their
Affiliates or representatives, and (ii) meets those certain standards involving
---
Starlight's minimum net worth and annual income as established by the California
Commissioner of Corporations relating to Starlight'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 Starlight's ability to be sophisticated regarding
the proposed purchase of shares.
19. Starlight is not a member of the NASD or other self-regulatory agency which
would require prior approval of a purchase of the shares.
20. Starlight acknowledges that Starlight 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.
21. Starlight 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. Starlight shall comply with Rule 144 and with all
policies and procedures established by Accesspoint with
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regard to Rule 144 matters. Starlight 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.
22. Notwithstanding anything in this Agreement to the contrary, the undersigned
Acknowledges that: (i) the Shares are being purchased in a private transaction
which is not part of a distribution of the Shares; (ii) 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 (iii) neither the
undersigned nor the seller of the Shares is an underwriter for purposes of Rule
144.
23. Starlight understands that the Shares are being offered and sold in
reliance on an exemption from the registration requirements of federal and state
securities laws under Regulation D and Regulation S promulgated under the
Securities Act and that Accesspoint is relying upon the truth and accuracy of
the representations, warranties, agreements, acknowledgments and understandings
of Starlight set forth herein in order to determine the applicability of such
exemptions and the suitability of Starlight to acquire the Shares. The
representations, warranties and agreements contained herein are true and correct
as of the date hereof and may be relied upon by Accesspoint and Starlight will
notify Accesspoint immediately of any adverse change in any such representations
and warranties which may occur prior to the issuance of Shares. The
representations, warranties and agreements of Starlight contained herein shall
survive the execution and delivery of this Agreement and the purchase of the
Shares.
24. Neither Starlight nor any of its affiliates, assigns or agents will,
directly or indirectly, maintain any short position in the Shares or any other
securities of the Company for so long as any of the Shares are owned by the
Subscriber.
25. Notwithstanding anything in this Agreement to the contrary, unless the
Shares have been registered for public sale as contemplated herein, the
undersigned shall not, directly or indirectly, offer or sell any of the Shares
until the expiration of six (6) months after the purchase of the Shares. A
legend to this effect may be placed upon the certificate evidencing ownership of
the Shares.
26. Neither Starlight nor any person or entity for whom Starlight is acting as
fiduciary is a U.S. person. A U.S. person means any one of the following:
26.1 any natural person resident in the United States of America;
26.2 any partnership or corporation organized or incorporated under the
laws of the United States of America;
26.3 any trust of which any trustee is a U.S. person;
26.4 any agency or branch of a foreign entity located in the United States
of America;
26.5 any non-discretionary account or similar account (other than an
estate or trust) held by a dealer or other fiduciary for the benefit or account
of a U.S. person;
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26.6 any discretionary account or similar account (other than an estate or
trust) held by a dealer or other fiduciary organized, incorporated or (if an
individual) resident in the United States of America; and
26.7 any partnership or corporation if:
(A) organized or incorporated under the laws of any foreign
jurisdiction; and
(B) formed by a U.S. person principally for the purpose of investing
in securities not registered under the Securities Act, unless it is organized or
incorporated, and owned, by accredited investors (as defined in Rule 501(a)
under the Securities Act) who are not natural persons, estates or trusts.
27. To the extent that the Shares are issued pursuant to Regulation S,
Starlight acknowledges the following:
27.1 ALL OFFERS AND SALES OF THE REGULATION S SHARES PRIOR TO THE
EXPIRATION OF THE DISTRIBUTION COMPLIANCE PERIOD AS DEFINED IN RULE 902
PROMULGATED UNDER THE ACT SHALL ONLY BE MADE IN COMPLIANCE WITH THE SAFE HARBOR
CONTAINED IN REGULATION S, PURSUANT TO REGISTRATION OF SECURITIES UNDER THE
SECURITIES ACT OR PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE
SECURITIES ACT, AND ALL OFFERS AND SALES AFTER THE DISTRIBUTION COMPLIANCE
PERIOD SHALL BE MADE ONLY PURSUANT TO SUCH A REGISTRATION OR TO SUCH EXEMPTION
FROM REGISTRATION, INCLUDING, WITHOUT LIMITATION, RULE 144.
27.2 ALL OFFERING DOCUMENTS RECEIVED BY THE PURCHASER INCLUDE STATEMENTS
TO THE EFFECT THAT THE SHARES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT
AND MAY NOT BE OFFERED OR SOLD IN THE UNITED STATES OR TO U.S. PERSONS OR FOR
THE ACCOUNT OR BENEFIT OF A U.S. PERSON (OTHER THAN DISTRIBUTORS AS DEFINED IN
REGULATION S) DURING THE DISTRIBUTION COMPLIANCE PERIOD AS DEFINED IN RULE 902
PROMULGATED UNDER THE ACT UNLESS THE SHARES ARE REGISTERED UNDER THE SECURITIES
ACT OR AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS IS AVAILABLE.
27.3 IN THE VIEW OF THE SEC, THE STATUTORY BASIS FOR THE EXEMPTION CLAIMED
FOR THIS TRANSACTION WOULD NOT BE PRESENT IF THE OFFERING OF SHARES, ALTHOUGH IN
TECHNICAL COMPLIANCE WITH REGULATION S, IS PART OF A PLAN OR SCHEME TO EVADE THE
REGISTRATION PROVISIONS OF THE SECURITIES ACT. THE PURCHASER IS ACQUIRING THE
SHARES FOR INVESTMENT PURPOSES AND HAS NO PRESENT INTENTION TO SELL THE SHARES
IN THE UNITED STATES OF AMERICA TO A U.S. PERSON OR FOR THE ACCOUNT OR BENEFIT
OF A U.S. PERSON.
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28. Starlight understands and agrees that the following restrictions and
limitations are applicable to Starlight's purchase and any sale, transfer,
assignment, pledge, hypothecation or other disposition of Shares pursuant to the
Securities Act and Regulation D and Regulation S promulgated pursuant thereto:
28.1. Starlight 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
28.2. 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
OFFERED AND SOLD IN RELIANCE UPON THE EXEMPTION SET FORTH IN THE ACT AND
UPON REGULATION D OR REGULATION S 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.
29. Starlight may not cancel, terminate, or revoke this Agreement, or any
agreement of Starlight made hereunder, and this Agreement shall survive the
death, dissolution, or disability of Starlight and shall be binding upon the
heirs, executors, administrators, successors and assigns of Starlight.
30. 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.
31. 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 any
conflicts of laws or choice of laws provisions. Starlight 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
Starlight hereby irrevocably consents and submits to the jurisdiction of such
courts for the purpose of any such suit, action or proceeding, and Starlight
agrees that service of process on
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Starlight 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. Starlight 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 Starlight 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.
STARLIGHTS MAY BE REQUIRED TO HOLD THE SHARES INDEFINITELY UNLESS SUCH
SHARES ARE SUBSEQUENTLY REGISTERED UNDER THE SECURITIES ACT OF 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, Starlight 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
By: /s/ Xxxxx X. Xxxxxxx
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Xxxxx X. Xxxxxxx,
President
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(Signatures continued on following page)
Starlight
Starlight International Holdings Limited
By: /s/ Xxxxxx Xxx
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Xxxxxx Xxx,
Chief Executive Officer
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