COMMON STOCK PURCHASE AGREEMENT
This Common Stock Purchase Agreement ("Agreement") by and
between eConnect, a Nevada corporation (the "Company"), and
Alpha Venture Capital, Inc., a Xxxx Islands corporation
("Purchaser"), is dated as of December 8, 2000.
Recitals
A. Purchaser desires to purchase, and the Company desires to
sell, shares of the Company's common stock, on the terms and
conditions as are set forth below.
B. The parties intend that the purchase and sale of the shares
as anticipated by this Agreement shall be accomplished without
registration under the Securities Act of 1933, as amended (the
"Securities Act"), and without registration or qualification
under the securities laws of any state or other jurisdiction in
reliance on exemptions from the registration requirements of the
Securities Act, including without limitation Regulation D under
the Securities Act and Section 4(2) of the Securities Act,
provided, however, that except as expressly otherwise provided
in this Agreement, nothing in this Agreement shall act or be
construed as a limitation on Purchaser's right to sell any of
the securities to be acquired pursuant to this Agreement
pursuant to the Registration Statement (as defined below) or in
accordance with applicable laws.
NOW, THEREFORE, in consideration of the mutual promises and
covenants set forth below and for other good and valuable
consideration, the receipt and sufficiency of which the parties
acknowledge by their signatures below, the parties agree as
follows (capitalized terms shall have the meanings ascribed to
such terms in Exhibit A hereto, unless otherwise indicated):
1. Purchase of Common Stock.
1.1 Shares.
(a) Subject to the terms and conditions of this Agreement, the
Company agrees to issue and sell to Purchaser, and Purchaser
agrees to acquire from the Company, at each Closing, a number of
shares of Common (the "Shares") at a price equal to eighty-two
percent (82%) of the average Market Price for the five (5)
Business Days immediately following the Put Notice Date (the
"Purchase Price").
(b) The number of Shares to be issued with respect to
each Put shall equal the Put Amount divided by the Market Price.
1.2 Registration. The Company shall file with the
SEC, within fifteen (15) days of the date hereof, a registration
statement on Form SB-2 or other appropriate form (the
"Registration Statement") to register the shares of Common Stock
purchased by Purchaser pursuant to this Agreement. The Company
shall cause the Registration Statement to become effective
within ninety (90) days from the date hereof. If the
Registration Statement is not declared effective within such
ninety (90) day period, the Commitment may terminate at the
option of Purchaser and Purchaser shall retain the Initial
Warrant.
2. Closings and Escrow.
2.1 Closing. Each Closing shall occur on the Share Payment
Date at the offices of the Escrow Agent or at such other place,
time or date as the parties may mutually agree to in writing.
At each Closing, Purchaser shall deliver written instructions to
the Escrow Agent to deliver to the Company (against receipt by
the Escrow Agent of a certificate or certificates evidencing the
Additional Shares), the Escrow Funds in U.S. dollars by wire
transfer of immediately available funds to an account designated
by the Company. At the Initial Closing,
(a) the Company shall deliver to Purchaser (i) a certificate or
certificates evidencing the shares to be delivered at the
Initial Closing (the "Initial Shares") and (ii) the Initial
Warrant, duly executed on behalf of the Company; and
(b) Purchaser shall deliver to the Company for the Put Amount
the Purchase Price times the number of Initial Shares, in U.S.
dollars by wire transfer of immediately available funds to an
account designated by the Company.
2.2 Purchases.
(a) The Purchaser hereby unconditionally and irrevocably agrees
to purchase from the Company up to $15,000,000 of Common Stock
(the "Commitment") in one or more tranches on and subject to the
terms and conditions provided this Section 2.2.
(b) Commencing on or after the Effective Date, the Company may
give a notice (a "Put Notice") to the Purchaser, with a copy to
the Escrow Agent. The Put Notice shall specify the dollar
amount (the "Put Amount") of the Common Stock to be purchased by
the Purchaser (which amount shall be not be less than one
hundred fifty thousand dollars ($150,000) and not more than five
million dollars ($5,000,000) in any given Put Notice).
(c) Except as specifically provided in this Section 2.3, the
purchase and sale of Additional Shares effected on each
Additional Closing Date shall be conducted as if it were the
transactions referred to in the Transaction Agreements (other
than Section 2.3 hereof). By way of illustration, and not in
limitation, of the foregoing, each of the Company and the
Purchaser shall be deemed to have made all of the
representations, warranties and covenants set forth in the
Transaction Documents as of the Additional Closing Date.
(d) It shall be a condition to the Company's right to issue a
Put Notice that, as of the Put Notice Date and the relevant
Additional Closing Date, (A) the Registration Statement or
Statements for all Securities purchased prior to the Additional
Closing Date contemplated by the current Put Notice shall have
been declared effective and shall continue to be effective (the
"Registration Statement") and (B) the representations and
warranties of the Company contained in Article 4 hereof shall be
true and correct in all material respects (and the Company's
issuance of the Additional Common Stock shall constitute the
Company's making each such representation and warranty as of
such date) and there shall have been no material adverse changes
(financial or otherwise) in the business or conditions of the
Company from the Initial Closing Date through and including the
Additional Shares (and the Company's issuance of the Additional
Common Stock shall constitute the Company's making such
representation and warranty as of such date).
(e) As of each Put Notice Date and Closing Date, the minimum
Put Amount shall not be less than one hundred fifty thousand
dollars ($150,000) and the maximum Put Amount shall not exceed
the lesser of two hundred percent (200%) of the average Trading
Volume for the twenty (20) consecutive trading days ending the
day before the relevant Put Notice and Closing Date, or $5,000,000.
(f) Except to the extent specifically contemplated by the
provisions of this Section, each Additional Closing shall be
conducted upon the same terms and conditions as those applicable
to the closing held on the Initial Closing Date.
(g) The Purchaser's obligations under this Section 2.2 shall
terminate at the later of (i) twelve (12) months after the
Initial Closing Date, or (ii) the date at which the Company has
sold $15,000,000 worth of Common Stock to the Purchaser,
provided, however, that the Company shall be entitled to one
automatic twelve (12) month extension if at least twenty percent
(20%) (i.e. $3,000,000) of the Commitment is drawn down during
the first six (6) months from the Effective Date.
2.3 Escrow. Within three (3) Business Days after the Company
has delivered a written notice to Purchaser that the SEC has
declared the Registration Statement effective.
(a) the Company shall deliver to the Escrow Agent the Joint
Escrow Instructions and the Initial Put Notice, duly executed on
behalf of the Company; and
(b) Purchaser shall deliver to the Escrow Agent, (i) the Joint
Escrow Instructions in the form annexed hereto as Exhibit B,
duly executed on behalf of Purchaser, and (ii) the Put Amount
reflected in the Initial Put Notice, in U.S. dollars by wire
transfer of immediately available funds to such account as may
be designated by the Escrow Agent.
2.4 Share Escrow.
(a) Simultaneous with the execution of this Agreement, the
Company agrees to deliver thirty million (30,000,000) shares of
Common Stock to the Escrow Agent to be held in Escrow, pursuant
to the terms of the Joint Escrow Instructions annexed hereto as
Exhibit B.
(b) Simultaneous with the effectiveness of the Registration
Statement, the Company shall deliver to the Transfer Agent and
the Escrow Agent, the Joint Escrow Instructions in the form
annexed hereto as Exhibit B.
(c) The Common Stock shall be maintained with the Escrow Agent
until the termination of Purchaser's obligations under this
Agreement ("Escrow Period"). At such time, the Escrow Agent,
upon written notice from the Company, shall release the unissued
share certificates back to the Transfer Agent within five (5)
Business Days thereafter.
2.5 Share Issuance.
(a) Not later than two (2) Business Days after the Share
Valuation Date, the Purchaser shall deliver a letter to the
Escrow Agent, advising the Escrow Agent of the maximum number of
shares that may be sold by the Purchaser free of restrictive
legend pursuant to the relevant Put Notice (the "Share Valuation
Letter"). Purchaser shall make payment of the Put Amount (less
any applicable legal or other fees) within three (3) Business
Days after delivery of the Share Valuation Letter to the Escrow
Agent ("Share Payment Date").
(b) In the event the Company does not deliver the requisite
instructions under Section 2.5(a) to the Escrow Agent within
two (2) Business Days after the Share Valuation Date, the
Purchaser may at its option, elect to treat the Put Notice as
null and void.
(c) If the effectiveness of the Registration Statement shall be
suspended for any reason, Purchaser shall be under no obligation
to accept or honor any Put Notice for a minimum period of
fifteen (15) days after the lifting of such suspension of the
Registration Statement.
3. Representations and Warranties of Purchaser. To induce the
Company's acceptance of this Agreement, Purchaser hereby
certifies, represents and warrants to the Company and its agents
and attorneys as follows, which representations and warranties
are solely for the benefit of the Company and may be waived in
whole or in part at any time prior to Closing by the Company:
3.1 Intent. Purchaser will be acquiring the Securities for its
own account, and Purchaser has no present intent (whether or not
legally binding) to sell any of the Securities to or through any
Person; provided, however, that by making the representations
herein, Purchaser does not agree to hold any of the Securities
for any minimum or other specific term and reserves the right to
dispose of the Securities at any time in accordance with U.S.
federal and state securities laws applicable to such disposition
and any restrictions imposed on such transfer by this Agreement
or the instruments and documents executed in connection with
this Agreement. Purchaser understands that the Securities must
be held indefinitely unless the Securities are subsequently
registered under the Securities Act or an exemption from
registration is available. Purchaser has been advised or is
aware of the provisions of Rule 144 promulgated under the
Securities Act.
3.2 Sophisticated Investor; Domicile. Purchaser and each of
its stockholders is a "sophisticated investor" (as described in
Rule 506(b)(2)(ii) of Regulation D under the Securities Act) and
an "accredited investor" (as defined in Rule 501(a) of
Regulation D under the Securities Act), and Purchaser has such
knowledge and experience in business and financial matters that
it is capable of evaluating the merits and risks of an
investment in the Company's Securities. Purchaser was not formed
exclusively for the purpose of entering into the transactions
contemplated hereby.
3.3 Ability of Purchaser to Bear Risk of Investment. Purchaser
acknowledges that the Securities are speculative investments and
involve a high degree of risk and Purchaser is able to bear the
economic risk of an investment in the Securities, and, at the
present time, is able to afford a complete loss of such
investment.
3.4 Authority. This Agreement has been duly authorized and
validly executed and delivered by Purchaser and (assuming due
authorization and valid execution by the Company) is a legal,
valid and binding agreement of Purchaser enforceable against
Purchaser in accordance with its terms, subject to general
principles of equity and to bankruptcy, insolvency or similar
laws relating to, or affecting generally the enforcement of
creditors' rights and remedies or by other equitable principles
of general application. The person or persons executing this
Agreement and all exhibits to this Agreement and documents or
instruments executed in connection with this Agreement on behalf
of Purchaser have all requisite authority to do so on behalf of
Purchaser.
3.5 Brokers, Finders. Purchaser has taken no action which
would give rise to any claim by any Person for brokerage
commission, finder's fees or similar payments by the Company
relating to this Agreement or the transactions contemplated
hereby. The Company shall have no obligation with respect to
such fees or with respect to any claims made by or on behalf of
other Persons for fees of a type contemplated in this Section
3.5 that may be due in connection with the transactions
contemplated hereby, except as expressly provided in Section
4.14.
3.6 Organization; Authority. Purchaser is an entity organized,
validly existing and in good standing under the laws of the
jurisdiction of its organization with the requisite power and
authority to enter into and to consummate the transactions
contemplated by this Agreement and to carry out its obligations
thereunder. The acquisition of the Securities and the payment
of the Purchase Price therefor by Purchaser have been duly
authorized by all necessary action on the part of Purchaser.
3.7 Absence of Conflicts. The execution and delivery of this
Agreement and any other document or instrument executed in
connection herewith (collectively with this Agreement, the
"Transaction Documents"), and the consummation of the
transactions contemplated by the Transaction Documents, and
compliance with the requirements thereof, will not violate any
law, rule, regulation, order, writ, judgment, injunction, decree
or award binding on Purchaser, or the provision of any
indenture, instrument or agreement to which Purchaser is a party
or is subject, or by which Purchaser or any of its assets is
bound, or conflict with or constitute a material default
thereunder, or require the approval of any third-party pursuant
to any material contract, agreement, instrument, relationship or
legal obligation to which Purchaser is subject or to which any
of its assets, operations or management may be subject.
3.8 Disclosure; Access to Information. Purchaser has received
copies of or has had access to all documents, records, books and
other information pertaining to Purchaser's investment in the
Company and the Securities that have been requested by
Purchaser. Purchaser has been afforded the opportunity to ask
questions of and receive answers from the Company and its
management concerning all aspects of the Company and of this
transaction. Purchaser further acknowledges that it understands
that the Company is subject to the periodic reporting
requirements of the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), and Purchaser has reviewed or received
copies of any such reports that have been requested by it.
Purchaser further acknowledges that it has been provided with
copies of the Company's certificate of incorporation, as amended
(the "Certificate"), and the Company's by-laws (the "By-Laws").
3.9 Manner of Sale. At no time was Purchaser presented with or
solicited by or through any leaflet, public promotional meeting,
television advertisement or any other form of general
solicitation or advertising with respect to the Securities.
3.10 Accuracy of Other Materials. To the extent Purchaser has
received from the Company documents or other materials which
constitute summaries, projections, forecasts or estimates,
Purchaser acknowledges the following with respect to such
documents or other materials: Such documents or other materials
are intended to illustrate projected financial and other results
based upon a set of assumptions (in some cases based on
information obtained by the Company from outside sources) the
Company views as reasonable and obtainable; all such summaries,
projections, forecasts or estimates pertaining to revenue
growth, profitability and other similar financial or market data
are forward-looking statements; such statements are subject to
certain risks and uncertainties that could cause actual results
to differ materially from those projected; and no
representations or warranties of future performance by or market
trends for the Company are intended, and such are expressly
disclaimed.
3.11 Accuracy of Representations and Information. All
representations made by Purchaser in this Agreement and all
documents and instruments related to this Agreement, and all
information provided by Purchaser to the Company concerning
Purchaser are correct and complete in all material respects as
of the date hereof.
4. Representations and Warranties of the Company. Except as
otherwise set forth in the schedules hereto, the Company hereby
represents and warrants to Purchaser as follows, which
representations and warranties are solely for the benefit of
Purchaser and may be waived in whole or in part by Purchaser at
any time prior to Closing:
4.1 Company Status. The Company has registered the Common
Stock pursuant to Section 12(g) of the Exchange Act, is in full
compliance with all reporting requirements of the Exchange Act,
and the Company has maintained all requirements for the
continued listing of the Common Stock, and such Common Stock is
currently listed on the Over the Counter Bulletin Board.
4.2 Current Public Information. The Company has furnished or
made available to Purchaser true and correct copies of all
registration statements, reports and documents, including proxy
statements (other than preliminary proxy statements), filed with
SEC by or with respect to the Company since December 31, 1999
and prior to the date of this Agreement, pursuant to the
Securities Act or the Exchange Act (collectively, the "SEC
Documents"). The SEC Documents are the only filings made by or
with respect to the Company since December 31, 1999 pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act or
pursuant to the Securities Act. The Company has filed all
reports, schedules, forms, statements and other documents
required to be filed under Sections 13(a), 13(c), 14 and 15(d)
of the Exchange Act since December 31, 1999 and prior to the
date of this Agreement.
4.3 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
Securities.
4.4 Valid Issuance of Common Stock. The Company has an
authorized capitalization consisting of 300,000,000 shares of
Common Stock, and no shares of preferred stock. As of December
7, 2000, the Company has issued and outstanding 215,359,897
shares of Common Stock. The number of shares of Common Stock
which are subject to issuance upon the conversion or exercise of
presently issued and outstanding warrants and options of the
Company are as set forth in Schedule 4.4. Schedule 4.4 sets
forth the number of shares of Common Stock which are reserved
for issuance under the Company's existing stock option plans. No
shares of the Company's preferred stock are issued and
outstanding. All of the shares of Common Stock outstanding have
been duly and validly authorized and issued and are fully paid
and non-assessable. Except as set forth above or as disclosed
in Schedule 4.4, as of the date of this Agreement, (i) there are
no outstanding options, warrants, scrip, rights to subscribe to,
calls or commitments of any character whatsoever relating to, or
securities or rights convertible into, any shares of capital
stock of the Company or any of its Subsidiaries, or contracts,
commitments, understandings or arrangements by which the Company
or any of its Subsidiaries is or may become bound to redeem or
issue additional shares of capital stock of the Company or any
of the Subsidiaries or options, warrants, scrip, rights to
subscribe to, calls or commitments of any character whatsoever
relating to, or securities or rights convertible into, any
shares of capital stock of the Company or any of the
Subsidiaries, (ii) there are no outstanding debt securities of
the Company or any of its Subsidiaries, other than indebtedness
to banks and other institutional lenders set forth on Schedule
4.4, and (iii) there are no agreements or arrangements under
which the Company or any of the Subsidiaries is obligated to
register the sale of any of their securities under the
Securities Act. Except as disclosed in Schedule 4.4, there are
no securities or instruments containing any anti-dilution, right
of first refusal, preemptive rights or similar provisions that
will be triggered by the issuance of the Securities as described
in this Agreement. Upon issuance of the Securities, such
securities will be duly and validly issued, fully paid and
non-assessable.
4.5 Organization and Qualification. The Company is a
corporation duly incorporated and existing in good standing
under the laws of the State of Nevada and has the requisite
corporate power to own its properties and to carry on its
business as now being conducted. The Company does not have any
Subsidiaries, except for those listed on Schedule 4.5 attached
to this Agreement (the "Subsidiaries"). The Subsidiaries are
duly incorporated and existing in good standing under the laws
of the jurisdictions of their incorporation. The Company and
each of the Subsidiaries is duly qualified as a foreign
corporation to do business and is in good standing in every
jurisdiction in which the nature of the business conducted or
property owned by it makes such qualification necessary, other
than those in which the failure to qualify would not have a
Material Adverse Effect. "Material Adverse Effect" means any
effect on the business, operations, properties or financial
condition of the entity or entities with respect to which such
term is used and which is material and adverse to such entity or
to other entities controlling or controlled by such entity,
and/or any condition or situation which would prohibit or
otherwise interfere with the ability of the entity or entities
with respect to which said term is used to enter into and
perform its or their obligations under the Transaction
Documents.
4.6 Authorization: Enforcement. (i) The Company has the
requisite corporate power and authority to enter into and
perform its obligations under the Transaction Documents and to
issue the Securities in accordance with the terms of the
Transaction Documents, (ii) the execution, issuance and delivery
of the Transaction Documents by the Company and the consummation
by it of the transactions contemplated by the Transaction
Documents have been duly authorized by all necessary corporate
action, and no further consent or authorization of the Company
or its board of directors or stockholders is required, (iii) the
Transaction Documents have been duly executed and delivered by
the Company, and (iv) the Transaction Documents (assuming due
authorization and valid and legal execution by Purchaser)
constitute legal, valid and binding obligations of the Company
enforceable against the Company in accordance with their terms,
except as such enforceability may be limited by applicable
bankruptcy, insolvency, or similar laws relating to, or
affecting generally the enforcement of, creditors' rights and
remedies or by other equitable principles of general
application.
4.7 Corporate Documents. The Company has furnished or made
available to Purchaser true and correct copies of the
Certificate and the Bylaws.
4.8 No Conflicts. The execution, delivery and performance of
the Transaction Documents by the Company and the consummation by
the Company of the transactions contemplated hereby, including
without limitation the issuance of the Securities, do not and
will not (i) result in a violation of the Company's Certificate
or Bylaws, or (ii) conflict with, or result in a breach of or
forfeiture of any rights (or result in an event which with
notice or lapse of time or both would become a breach of or
forfeiture of any rights) under, or give to others any rights of
termination, amendment, acceleration or cancellation of, any
material agreement, indenture or instrument to which the Company
or any of the Subsidiaries is a party, or (iii) result in a
violation of any federal or state law, rule, regulation, order,
judgment or decree (including federal and state securities laws
and regulations) applicable to the Company or any of the
Subsidiaries or by which any property or asset of the Company or
any of the Subsidiaries is bound or affected (except for such
conflicts, defaults, terminations, amendments, accelerations,
cancellations and violations as would not, individually or in
the aggregate, have a Material Adverse Effect). The business of
the Company is not being conducted in violation of any law,
ordinance or regulation of any governmental entity, except for
possible violations which either singly or in the aggregate do
not and will not have a Material Adverse Effect. The Company is
not required under federal, state or local law, rule or
regulation 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 or perform any of its
obligations under this Agreement or issue and sell the
Securities in accordance with the terms of this Agreement (other
than any SEC, NASD or state securities filings which may be
required to be made by the Company subsequent to any Closing
hereunder, and any Registration Statement which may be filed in
furtherance of this Agreement); provided that, for purposes of
the representation made in this sentence, the Company is
assuming and relying upon the accuracy of the relevant
representations and agreements of Purchaser herein. Neither the
Company nor any of the Subsidiaries is in violation of any
material term of or in material default under its Certificate or
By-laws or their organizational charter or by-laws,
respectively, or any material contract, agreement, mortgage,
indebtedness, indenture, instrument, judgment, decree of order
or any statute, rule or regulation applicable to the Company or
the Subsidiaries, which has not been duly waived as of the date
of this Agreement.
4.9 SEC Documents. As of their respective dates, the SEC
Documents complied, and all similar documents filed with the SEC
prior to each Closing Date will comply, in all material respects
with the requirements of the Securities Act or the Exchange Act,
as the case may be, and the rules and regulations of the SEC
promulgated thereunder and other federal, state and local laws,
rules and regulations applicable to such SEC Documents, and none
of the SEC Documents contained, nor will any similar document
filed with the SEC prior to each Closing Date contain, any
untrue statement of a material fact or omitted or omit to state
a material fact required to be stated therein or necessary in
order to make the statements therein, in light of the
circumstances under which they were made, not misleading. The
financial statements of the Company included in the SEC
Documents, as of the dates thereof, complied, and all similar
documents filed with the SEC prior to each Closing Date will
comply, as to form in all material respects with applicable
accounting requirements and the published rules and regulations
of the SEC and other applicable rules and regulations with
respect thereto. Such financial statements were prepared in
accordance with generally accepted accounting principles applied
on a consistent basis during the periods involved (except (i) as
may be otherwise indicated in such financial statements or the
notes thereto or (ii) in the case of unaudited interim
statements, to the extent they may not include footnotes or may
be condensed or summary statements as permitted by Form 10-QSB
of the SEC) and fairly present in all material respects the
financial position of the Company and its consolidated
Subsidiaries as of the dates thereof and the consolidated
results of operations and cash flows for the periods then ended
(subject, in the case of unaudited statements, to normal
year-end audit adjustments).
4.10 No Undisclosed Liabilities. Except to the extent described
in Schedule 4.10, the Company and the Subsidiaries have no
liabilities or obligations of a financial nature (whether
accrued, absolute, contingent or otherwise), which are material,
individually or in the aggregate, and are not disclosed in the
SEC Documents, other than those incurred in the ordinary course
of the Company's or the Subsidiaries' respective businesses
consistent with past practice since September 30, 2000, and
which, individually or in the aggregate, do not or would not
have a Material Adverse Effect on the Company.
4.11 Litigation and Other Proceedings. Except as may be set
forth in the SEC Documents or otherwise disclosed in writing to
Purchaser, there are no lawsuits or proceedings pending or to
the best knowledge of the Company threatened, against the
Company, nor has the Company received any written or oral notice
of any such action, suit, proceeding or investigation, which
might have a Material Adverse Effect on the Company or which
might materially adversely affect the transactions contemplated
by this Agreement. Except as set forth in the SEC Documents, no
judgment, order, writ, injunction, decree or award has been
issued by or, to the best knowledge of the Company, requested of
any court, arbitrator or governmental agency which might result
in a Material Adverse Effect or which might materially adversely
affect the transactions contemplated by this Agreement.
4.12 Other Documents or Materials. With respect to any document
or other materials received by Purchaser from the Company or its
representatives other than the Transaction Documents and the SEC
Documents, (i) the Company has no reason to believe any of such
documents and materials or any projections contained therein, as
of the date of such other documents or materials, contained
material errors or misstatements or did not adequately describe
the status of the development of the Company's technologies or
its business as of such date, and (ii) such documents, materials
and projections were prepared by the Company and its management
in good faith.
4.13 Nature of Company. The Company is not an open ended
investment company or a unit investment trust, registered or
required to be registered, or a closed end investment company
required to be registered, but not registered, under the
Investment Company Act of 1940.
4.14 Brokers, Finders. Except for payment of commitment fees to
Purchaser equal to eight percent (8%) of the amount specified in
each Put Notice, payment of which is the sole responsibility of
the Company, the Company has taken no action which would give
rise to any claim by any Person for brokerage commission,
finder's fees or similar payments by Purchaser relating to this
Agreement or the transactions contemplated hereby. Purchaser
shall have no obligation with respect to such fees or with
respect to any claims made by or on behalf of other Persons for
fees of a type contemplated in this Section 4.14 that may be due
in connection with the transactions contemplated hereby.
4.15 Absence of Certain Changes. Since September 30, 2000,
no Material Adverse Effect has been suffered by, and no material
adverse development has occurred in the business, properties,
operations, financial condition or results of operations of the
Company or the Subsidiaries. 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
or any of the Subsidiaries have any knowledge or reason to
believe that its creditors intend to initiate involuntary
bankruptcy proceedings.
4.16 Intellectual Property Rights. The Company and the
Subsidiaries own or possess adequate rights or licenses to use
all trademarks, trade names, service marks, service xxxx
registrations, service names, patents, patent rights,
copyrights, inventions, licenses, approvals, governmental
authorizations, trade secrets and rights necessary to conduct
their respective businesses as now conducted. None of the
Company's trademarks, trade names, service marks, service xxxx
registrations, service names, patents, patent rights,
copyrights, inventions, licenses, approvals, government
authorizations, trade secrets or other intellectual property
rights have expired or terminated, or are expected to expire or
terminate in the near future. The Company and the Subsidiaries
do not have any knowledge of any infringement by the Company or
the Subsidiaries of trademarks, trade name rights, patents,
patent rights, copyrights, inventions, licenses, service names,
service marks, service xxxx registrations, trade secrets or
other similar rights of others, or of any such development of
similar or identical trade secrets or technical information by
others and, there is no claim, action or proceeding being made
or brought against, or to the best knowledge of the Company,
being threatened against, the Company or the Subsidiaries
regarding trademark, trade name, patent, patent rights,
invention, copyright, license, service name, service xxxx,
service xxxx registration, trade secret or other infringement;
and the Company and the Subsidiaries are unaware of any facts or
circumstances which might give rise to any of the foregoing.
The Company and the Subsidiaries have taken reasonable security
measures to protect the secrecy, confidentiality and value of
all of their intellectual properties.
4.17 Internal Accounting Controls. The Company is not aware in
any respect in which its system of internal accounting controls
is not sufficient to provide reasonable assurance that (i)
transactions are executed in accordance with management's
general or specific authorizations, (ii) transactions are
recorded as necessary to permit preparation of financial
statements in conformity with generally accepted accounting
principles and to maintain asset accountability, (iii) access to
assets is permitted only in accordance with management's general
or specific authorization and (iv) the recorded accountability
for assets is compared with the existing assets at reasonable
intervals and appropriate action is taken with respect to any
differences.
4.18 Tax Status. The Company and the Subsidiaries have made or
filed all federal and state income and all other tax returns,
reports and declarations required by any jurisdiction to which
any of them is subject and have paid all taxes and other
governmental assessments and charges that are material in
amount, shown or determined to be due on such returns, reports,
declarations, except those being contested in good faith and
have set aside on their books provisions 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.
4.19 Certain Transactions. Except as set forth in Schedule 4.19
or in the SEC Documents and 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 and other than the
grant of stock options, none of the officers, directors, or
employees of the Company (or any spouse or relative of any such
person) is presently a party to any transaction with the Company
(other than for services as employees, officers, consultants 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.
4.20 Dilution. The Company's executive officers and directors
have studied and fully understand the nature of the transactions
contemplated by this Agreement and recognize that such
transactions have a potential dilutive effect. The board of
directors of the Company has concluded, in its good faith
business judgment, that such issuance is in the best interests
of the Company.
4.21 OTC BB Listing. The Company's Common Stock is presently
quoted on the Over the Counter Bulletin Board under the symbol
"ECNC." The Company is not in receipt of any written notice
from any stock exchange, market or trading facility on which the
Common Stock is or has been listed (or on which it is or has
been quoted) to the effect that the Company is not in compliance
with the listing or maintenance requirements of such stock
exchange, market or trading facility or that the Common Stock
will be delisted from such stock exchange, market or trading
facility.
4.22 No Integrated Offering. Neither the Company nor any
of its affiliates nor any Person acting on its or their behalf
has, directly or indirectly, at any time since December 31,
1999, made any offer or sales of any security or solicited any
offers to buy any security under circumstances that would
eliminate the availability of the exemption from registration
under Regulation D in connection with the offer and sale of the
Securities as contemplated hereby.
5. Use and Disposition of Proceeds. The Company will use the
proceeds from the sale of the Common Stock (excluding amounts
paid by the Company for legal fees and finder's fees in
connection with the sale to Purchaser) for general corporate
purposes, but shall not, directly or indirectly, use such
proceeds for investment in any other Affiliate or to repay debt
to Affiliates.
6. Company Reliance on Purchaser's Representations. Purchaser
understands that the Company is relying on the truth and
accuracy of the representations and warranties made herein by
Purchaser in offering the Securities for sale and in relying
upon applicable exemptions available under the Securities Act
and applicable state securities laws.
7. Restricted Shares. Purchaser understands and acknowledges
that if the Securities have not been, and will not as of the
time issued be, registered under the Securities Act, they will
be issued in reliance upon exemptions from the registration
requirements of the Securities Act, and thus cannot be resold
unless they are included in an effective Registration Statement
filed under the Securities Act or unless an exemption from
registration is available for such resale. With regard to the
restrictions on resales of the Securities, Purchaser is aware
(a) that the Company will issue stop transfer orders to its
stock transfer agent in the event of attempts to improperly
transfer any Securities; and (b) that a restrictive legend will
be placed on certificates representing the Securities, which
legend will read substantially as follows:
THESE SECURITIES ARE NOT REGISTERED WITH THE UNITED STATES
SECURITIES AND EXCHANGE COMMISSION UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE "ACT"), PURSUANT TO AN EXEMPTION FROM
REGISTRATION UNDER THE ACT AND REGULATIONS PROMULGATED UNDER THE
ACT, INCLUDING EXEMPTIONS UNDER SECTIONS 3(b) AND 4(2) OF THE
ACT AND THE PROVISIONS OF REGULATION D UNDER SUCH ACT, AND
SIMILAR EXEMPTIONS UNDER STATE LAW. ACCORDINGLY, THESE
SECURITIES MAY NOT BE RESOLD, TRANSFERRED, PLEDGED, ASSIGNED OR
HYPOTHECATED UNLESS SUCH SECURITIES ARE COVERED BY AN EFFECTIVE
REGISTRATION STATEMENT FILED UNDER THE ACT OR AN EXEMPTION FROM
SUCH REGISTRATION REQUIREMENT IS AVAILABLE AND THE COMPANY HAS
RECEIVED AN OPINION OF SECURITIES COUNSEL REASONABLY
SATISFACTORY TO THE COMPANY THAT SUCH EXEMPTION IS AVAILABLE.
The legend set forth above shall be promptly removed without
additional cost or delay, and the Company shall issue a
certificate without such legend to the holder of any of the
Securities upon which such legend is stamped (or to the holder's
assignee), if, unless otherwise required by state securities
laws, (i) such securities are registered for resale, or have
been sold, under an effective registration statement under the
Securities Act, (ii) in connection with a sale transaction, such
holder provides the Company with an opinion of counsel, in a
generally acceptable form, to the effect that a public sale,
assignment or transfer of the Securities may be made without
registration under the Securities Act, or (iii) such holder
provides the Company with reasonable assurances that the
Securities can be sold pursuant to Rule 144 promulgated under
the Securities Act without any restriction as to the number of
securities acquired as of a particular date that can then be
immediately sold. Notwithstanding the removal of the legend set
forth above, in the event the Securities are registered for
resale on an effective registration statement, the Company
reserves the right to affix a legend on certificates
representing the Securities that any selling shareholder named
in the registration statement must comply with the prospectus
delivery requirements of the Securities Act in connection with
any resale. The Company shall bear the cost of the removal of
any legend as anticipated by this Section 7.
8. Other Covenants of the Company.
8.1 Furnishing of Information. As long as Purchaser owns
Securities, the Company covenants to timely file (or obtain
extensions in respect thereof and file within the applicable
grace period) all reports required to be filed by the Company
after the date hereof pursuant to Section 13(a) or 15(d) of the
Exchange Act. If at any time prior to the date on which
Purchaser may resell all of the Securities without volume
restrictions pursuant to Rule 144(k) promulgated under the
Securities Act (as determined by counsel to the Company pursuant
to a written opinion letter to such effect, addressed and
acceptable to the Company's transfer agent for the benefit of
and enforceable by Purchaser) the Company is not required to
file reports pursuant to such sections, it will prepare and
furnish to Purchaser and make publicly available in accordance
with Rule 144(c) promulgated under the Securities Act annual and
quarterly financial statements, together with a discussion and
analysis of such financial statements in form and substance
substantially similar to those that would otherwise be required
to be included in reports required by Section 13(a) or 15(d) of
the Exchange Act in the time period that such filings would have
been required to have been made under the Exchange Act. The
Company further covenants that it will take such further action
as any holder of Securities may reasonably request, all to the
extent required from time to time to enable such Person to sell
Securities without registration under the Securities Act within
the limitation of the exemptions provided by Rule 144
promulgated under the Securities Act.
8.2 Certain Agreements. The Company covenants and agrees that
it will not, without the prior written consent of Purchaser,
enter into any subsequent or further offer or sale of Common
Stock or securities convertible into Common Stock with any third
party or issue any shares of Common Stock to any consultant or
other third party utilizing a registration statement on Form S-8
until the later of December 4, 2001 or upon the total Put
Amounts reaching fifteen million dollars ($15,000,000), other
than as agreed to in writing by the parties. The provisions of
this Section 8.2 will not apply to (a) the issuance of
securities (other than for cash) in connection with a merger,
consolidation, sale of assets, disposition or the exchange of
the capital stock for assets, stock or other joint venture
interests, or (b) upon conversion or exercise of any convertible
or derivative securities outstanding on the date hereof, as set
forth on Schedule 8.2.
8.3 Warrants. The Company agrees to issue to Purchaser
transferable divisible warrants (i) upon execution hereof, to
purchase two million (2,000,000) shares of Common Stock at an
exercise price equal to the lesser of (a) forty percent (40%) of
the Market Price of the Common Stock as of the date hereof (the
"Initial Warrant"), or (b) forty percent (40%) of the average
five (5) day Market Price as of the Effective Date of the
Registration Statement; and (ii) to purchase a maximum of one
million (1,000,000) shares of Common Stock ("Additional
Warrants") on a pro rata basis in conjunction with each
Additional Closing, exercisable at forty percent (40%) of the
Market Price, at the date of each Additional Closing.
8.4 Liquidated Damages. If on any Closing Date or
any Delivery Date, the Company fails to deliver the Shares to be
purchased by Purchaser, and such failure continues for three (3)
Business Days, the Company shall pay to Purchaser, in cash, as
liquidated damages and not as a penalty, an amount equal to $500
per each $100,000 funded for each day that the Shares purchased
by Purchaser are not delivered up to ten (10) days, and $1,000
per each $1,000,000 funded for each day that the Shares
purchased by Purchaser are not delivered in excess of ten (10)
days until such failure has been cured. Cash payments to be
made pursuant to this Section 8.4 shall be due and payable
immediately upon demand in immediately available cash funds.
8.5 Available Shares. The Company shall have at all
times authorized and reserved for issuance, free from preemptive
rights, a sufficient number of shares under the terms of this
Agreement and Common Stock for issuance pursuant to the exercise
of the Warrants.
8.6 Reimbursement. If (i) Purchaser, other than by reason of
its gross negligence or willful misconduct, becomes involved in
any capacity in any action, proceeding or investigation brought
by any stockholder of the Company, in connection with or as a
result of the consummation of the transactions contemplated by
the Transaction Documents, or if Purchaser is impleaded in any
such action, proceeding or investigation by any Person, or (ii)
Purchaser, other than by reason of its gross negligence or
willful misconduct or by reason of its trading of the Common
Stock in a manner that is illegal under applicable securities
laws, becomes involved in any capacity in any action, proceeding
or investigation brought by the SEC against or involving the
Company or in connection with or as a result of the consummation
of the transactions contemplated by the Transaction Documents,
or if Purchaser is impleaded in any such action, proceeding or
investigation by any Person, then in any such case, the Company
will reimburse Purchaser for its reasonable legal and other
expenses (including the cost of any investigation and
preparation) incurred in connection therewith, as such expenses
are incurred. In addition, other than with respect to any
matter in which Purchaser is a named party, the Company will pay
Purchaser the charges, as reasonably determined by Purchaser,
for the time of any officers or employees of Purchaser devoted
to appearing and preparing to appear as witnesses, assisting in
preparation for hearings, trials or pretrial matters, or
otherwise with respect to inquiries, hearing, trials, and other
proceedings relating to the subject matter of this Agreement.
The reimbursement obligations of the Company under this
paragraph shall be in addition to any liability which the
Company may otherwise have, shall extend upon the same terms and
conditions to any Affiliates of Purchaser who are actually named
in such action, proceeding or investigation, and partners,
directors, agents, employees and controlling persons (if any),
as the case may be, of Purchaser and any such Affiliates, and
shall be binding upon and inure to the benefit of any
successors, assigns, heirs and personal representatives of the
Company, Purchaser and any such Affiliates and any such Person.
The Company also agrees that neither any Purchaser nor any such
Affiliates, partners, directors, agents, employees or
controlling persons shall have any liability to the Company or
any person asserting claims on behalf of or in right of the
Company in connection with or as a result of the consummation of
the Transaction Documents except to the extent that any losses,
claims, damages, liabilities or expenses incurred by the Company
result from the gross negligence or willful misconduct of
Purchaser or any inaccuracy in any representation or warranty of
Purchaser contained in herein or any breach by Purchaser of any
of the provisions hereof.
9. Transfer Agent Instructions.
9.1 Irrevocable Instructions. Subject to the provisions of
Section 2.5, the Company will irrevocably instruct the Transfer
Agent to issue securities from time to time in such amounts as
shall be required hereunder and as specified from time to time
by the Company to the Transfer Agent, bearing the restrictive
legend specified in Section 7 of this Agreement prior to
registration of the Securities under the Securities Act,
registered in the name of Purchaser and in such denominations to
be specified by Purchaser in connection with each Closing
hereunder. The Company warrants that no instruction other than
such instructions referred to in this Section 9 and stop
transfer instructions to give effect to Section 7 hereof prior
to registration and sale of the Securities under the Securities
Act will be given by the Company to the Transfer Agent and that
the Securities shall otherwise be freely transferable on the
books and records of the Company as and to the extent provided
in this Agreement and applicable law. Nothing in this Section 9
shall affect in any way Purchaser's obligations and agreement to
comply with all applicable securities laws upon resale of the
Securities.
9.2 Transmission of Certificates. Subject to Section 7, the
Company will transmit the certificates representing any
unlegended securities to be issued to Purchaser via express
courier, by electronic transfer or otherwise, within three (3)
Business Days after receipt by the Transfer Agent of the
certificate representing the legended Common Stock or the date
unlegended Common Stock is required to be issued pursuant to
Section 7, as applicable (the "Delivery Date").
9.3 Electronic Transfer. In lieu of delivering physical
certificates representing the unlegended securities issuable
after the Effective Date as provided in Section 7, provided the
Transfer Agent is participating in the Depository Trust Company
("DTC") Fast Automated Securities Transfer program, upon request
of Purchaser and its compliance with the provisions contained in
this paragraph, so long as the certificates therefor do not bear
a legend and Purchaser thereof is not obligated to return such
certificates for the placement of a legend thereon, the Company
shall use its reasonable best efforts to cause the Transfer
Agent to electronically transmit the Common Stock issuable on
the Closing Date or upon exercise of the Warrants by crediting
the account of Purchaser's prime broker with DTC through its
Deposit Withdrawal Agent Commission system.
9.4 Bankruptcy. Purchaser shall be entitled to exercise its
right under Section 2.3 notwithstanding the commencement of any
case under 11 U.S.C. Section 101 et seq. (the "Bankruptcy
Code"). The Company agrees, without cost or expense to the
holder, to take or consent to any and all action necessary to
effectuate relief under 11 U.S.C. Section 362.
10. Closing Conditions
10.1 Conditions to the Company's Obligation to Sell. The
Purchaser understands that the Company's obligation to sell the
Initial Shares and the Additional Shares on the Initial Closing
Date and each Additional Closing Date, respectively, pursuant to
this Agreement is conditioned upon:
(a) the accuracy on each such date of the representations and
warranties of Purchaser contained in this Agreement as if made
thereon, and the performance by Purchaser on or before such date
of all covenants and agreements of Purchaser required to be
performed on or before such date;
(b) there not being in effect any law, rule or regulation
prohibiting or restricting the transactions contemplated hereby,
or requiring any consent or approval which shall not have been
obtained, nor there being any pending or threatened proceeding
or investigation which may have the effect of prohibiting or
adversely affecting any of the transactions contemplated by this
Agreement.
10.2. Conditions to Purchaser's Obligation To Purchase. The
Company understands that Purchaser's obligation to purchase the
Initial Shares and the Additional Shares on the Initial Closing
Date and each Additional Closing Date, respectively, pursuant to
this Agreement is conditioned upon:
(a) the accuracy in all material respects on each such date of
the representations and warranties of the Company contained in
this Agreement as if made on such date and the performance by
the Company on or before each such date of all covenants and
agreements of the Company required to be performed on or before
such date;
(b) on or before each such date, Purchaser having received an
opinion of counsel for the Company, dated on each such date, in
the form of Exhibit D hereto;
(c) there not being in effect any law, rule or regulation
prohibiting or restricting the transactions contemplated hereby,
or requiring any consent or approval which shall not have been
obtained, nor there being any pending or threatened proceeding
or investigation which may have the effect of prohibiting or
adversely affecting any of the transactions contemplated by this
Agreement;
(d) from and after the date hereof to and including the Initial
Closing Date and the Additional Closing Date, the trading of the
Common Stock shall not have been suspended by the SEC or the
NASD;
(e) the Registration Statement relating to the
Common Stock and related Warrants shall have been declared
effective by the SEC and shall continue to be effective;
(f) the Company's Common Stock continues to be
traded on the Over the Counter Bulletin Board;
(g) the Company's compliance with all blue sky
laws to enable the Shares to be issued and resold through a
broker in the State of California;
(h) the number of Shares to be purchased on the
Closing Date shall not exceed the number of such shares that,
when aggregated with all other shares of Common Stock then owned
by the Purchaser beneficially, would result in the Purchaser
owning more than 4.99% of all of such Common Stock as would be
outstanding on such Closing Date, as determined in accordance
with Section 16 of the Exchange Act and the regulations
promulgated thereunder. For purposes of this Section 10.2(h),
in the event that the amount of Common Stock outstanding as
determined in accordance with Section 16 of the Exchange Act and
the regulations promulgated thereunder is greater on a Closing
Date than on the date upon which the Put Notice associated with
such Closing Date is given, the amount of Common Stock
outstanding on such Closing Date shall govern for purposes of
determining whether the Purchaser, when aggregating all
purchases of Common Stock made pursuant to this Agreement would
own more than 4.99% of the Common Stock following such Closing
Date.; and
(i) no disputes arise as a result of periodic
due diligence investigations conducted by the Purchaser.
11. General Provisions.
11.1 Assignment. Neither this Agreement nor any rights of
Purchaser hereunder may be assigned by either party to any other
person without the prior written consent of the Company.
11.2 Attorneys' Fees. In the event any dispute arises under
this Agreement or the documents or instruments executed and
delivered in connection with this Agreement, and the parties
hereto resort to litigation to resolve such dispute, the
prevailing party in any such litigation, in addition to all
other remedies at law or in equity, shall be entitled to an
award of costs and fees from the other party, which costs and
fees shall include, without limitation, reasonable attorneys'
fees and legal costs.
11.3 Choice of Law; Venue. This Agreement shall be governed by
and interpreted in accordance with the laws of the State of New
York for contracts to be wholly performed in such state and
without giving effect to the principles thereof regarding the
conflict of laws. Each of the parties consents to the
jurisdiction of the federal courts whose districts encompass any
part of the City of New York or the state courts of the State of
New York sitting in the City of New York in connection with any
dispute arising under this Agreement and hereby waives, to the
maximum extent permitted by law, any objection, including any
objection based on forum non coveniens, to the bringing of any
such proceeding in such jurisdictions.
11.4 Costs and Expenses. The parties shall be responsible for
and shall pay their own costs and expenses, including without
limitation attorneys' fees and accountants' fees and expenses,
in connection with the conduct of the due diligence inquiry,
negotiation, execution and delivery of this Agreement and the
instruments, documents and agreements executed in connection
with this Agreement, except that the Company shall pay an amount
of $10,000 to legal counsel of Purchaser to cover legal fees and
due diligence expenses upon execution hereof, and a legal fee of
$2,500 in connection with each Additional Closing hereunder. In
addition, the Company shall pay all reasonable fees and expenses
incurred by Purchaser in connection with any amendments,
modifications or waivers of this Agreement, including, without
limitation, all reasonable attorneys fees and expenses. The
Company shall pay all stamp or other similar taxes and duties
levied in connection with the issuance of the Shares pursuant
hereto.
11.5 Counterparts/Facsimile Signatures. This Agreement may be
executed in one or more counterparts, each of which when so
signed shall be deemed to be an original, and such counterparts
together shall constitute one and the same instrument. In lieu
of the original, a facsimile transmission or copy of the
original shall be as effective and enforceable as the original.
11.6 Entire Agreement: Amendment. This Agreement, together with
the exhibits to this Agreement and the other instruments and
documents delivered in connection with this Agreement constitute
the full and entire understanding and agreement between the
parties with regard to the subjects hereof and thereof, and no
party shall be liable or bound to any other party in any manner
by any warranties, representations or covenants except as
specifically set forth in this Agreement or therein. Except as
expressly provided in this Agreement, neither this Agreement nor
any term hereof may be amended, waived, discharged or terminated
other than by a written instrument signed by the party against
whom enforcement of any such amendment, waiver, discharge or
termination is sought.
11.7 Headings. The headings of the sections and paragraphs of
this Agreement have been inserted for convenience of reference
only and do not constitute a part of this Agreement.
11.8 Notices. All notices or other communications provided for
under this Agreement shall be in writing, and mailed, telecopied
or delivered by hand delivery or by overnight courier service,
as follows:
If to the Company:
eConnect
2500 Xxx Xxxxxxxx Xxxxxx, Xxxxx 000
Xxx Xxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxx Xxxxxx
Fax No.: (000) 000-0000
With a copy to:
Xxxxx X. Xxxxxxxx, Esq.
0000 Xxxxx Xxxxxx, Xxxxx 000
Xxxxxxx Xxxxx, Xxxxxxxxxx 00000
Fax No.: (000) 000-0000
If to Purchaser:
Alpha Venture Capital, Inc.
X.X. Xxx 00
Xxxxxx Xxxxxxxxx
Xxxx Xxxxxxx
Attention: Xx. Xxxxx Xxxxxx, Director
Fax No.: (000) 000-0000
All notices and communications shall be effective as follows:
When mailed, upon three (3) business days after deposit in the
mail (postage prepaid); when telecopied, upon confirmed
transmission of the telecopied notice; when hand delivered, upon
delivery; and when sent by overnight courier, the next business
day after deposit of the notice with the overnight courier.
11.9 Publicity. Purchaser acknowledges that this Agreement and
all or part of the Transaction Documents may be deemed to be
"material contracts" as that term is defined by Item 601(b)(10)
of Regulation S-K, and that the Company may therefore be
required to file such documents as exhibits to reports or
registration statements filed under the Securities Act or the
Exchange Act. Purchaser further agrees that the status of such
documents and materials as material contracts shall be
determined solely by the Company, in consultation with its
counsel. Purchaser consents to the Company's public disclosure
of this Agreement in accordance with the Securities Act and the
Exchange Act.
11.10 Severability. Should any one or more of the
provisions of this Agreement be determined to be illegal or
unenforceable, all other provisions of this Agreement shall be
given effect separately from the provision or provisions
determined to be illegal or unenforceable and shall not be
affected thereby.
11.11 Survival Of Representations And Warranties. The
Company's representations and warranties herein shall survive
the execution and delivery of this Agreement and the delivery of
the Securities, and shall inure to the benefit of Purchaser and
its successors and permitted assigns.
11.12 Schedules and Exhibits. The schedules and exhibits
attached to this Agreement are a part hereof, as if fully set
forth herein.
IN WITNESS WHEREOF, the parties named below have caused
this Agreement to be executed and delivered as of the date first
above written.
COMPANY:
eConnect
By : Xxxxxx X. Xxxxxx
Xxxxxx X. Xxxxxx, President
PURCHASER:
Alpha Venture Capital, Inc.
By: /s/ Xxxxx Xxxxxx
Xxxxx Xxxxxx, Director
EXHIBIT A
DEFINITIONS
"Additional Closing" means the closing of the purchase and sale
of Common Stock pursuant to each additional Put Notice issued
after the Initial Put Notice.
"Additional Closing Date" means the date on which each
Additional Closing takes place.
"Additional Shares" means the shares of Common Stock to be
delivered at each Additional Closing.
"Additional Warrants" means a warrant in the form of Exhibit E
hereto to purchase a number of shares of Common Stock specified
in Section 8.3 hereof.
"Affiliate" has the meaning set forth in the Exchange Act and
the rules and regulations thereunder.
"Business Day" means a day on which the Nasdaq stock market is
open for regular trading.
"Closing" means either the Initial Closing or any Additional
Closing.
"Closing Date" means either the Initial Closing Date or the
Additional Closing Date.
"Commitment " is defined in Section 2.2(a).
"Common Stock" means common stock, $0.001 par value per share,
of the Company.
"Effective Date" means the effective date of the Registration
Statement.
"Escrow Agent" means Dundee Securities Corporation.
"Escrow Funds" means the funds held by the Escrow Agent under
the Joint Escrow Instructions together with all interest and
income earned thereon.
"Escrow Period" is defined in Section 2.4(c).
"Exchange Act" is defined in Section 3.8.
"Initial Closing" means the closing of the purchase and sale of
Common Stock pursuant to the Initial Put Notice.
"Initial Closing Date" means the date on which the Initial
Closing takes place.
"Initial Put Notice" means the first Put Notice delivered to
Purchaser pursuant to the terms of this Agreement.
"Initial Shares" is defined in Section 2.1.
"Initial Warrant" means a warrant in the form of Exhibit E
hereto to purchase the number of shares of Common Stock
specified in Section 8.3 hereof.
"Joint Escrow Instructions" means the joint escrow instructions
in the form of Exhibit B hereto.
"Market Price" means the closing bid price of the Common Stock
as reported, at the option of Purchaser, by Bloomberg, LP or the
National Association of Securities Dealers.
"Material Adverse Effect" is defined in Section 4.5.
"Person" means an individual, corporation, partnership,
association, trust, estate or other entity or organization,
including a governmental entity or agency.
"Purchase Price" is defined in Section 1.1
"Put Amount" is defined in Section 2.2(b).
"Put Notice" shall mean the notice delivered by the Company to
the Purchaser by in compliance with the notice provisions of
Section 2.2 hereof.
"Put Notice Date" is the date the Put Notice is delivered to
the Purchaser by the Company.
"Registration Statement" is defined in Section 2.2(d).
"Restrictive Period" is defined in Section 8.2.
"SEC" means the U.S. Securities and Exchange Commission.
"SEC Documents" is defined in Section 4.2.
"Securities" means the Initial Shares, the Additional Shares,
the Initial Warrant, the Additional Warrants and the shares
issuable under the Warrants.
"Securities Act" is defined in Recital B.
"Share Valuation Date" shall mean the fifth (5th) business day
after delivery of the Put Notice.
"Share Payment Date" is defined in Section 2.5.
"Shares" is defined in Section 1.1(a)
"Subsidiaries" is defined in Section 4.5
"Trading Volume" shall mean the dollar amount of the average
daily trading volume of the Common Stock, calculated based upon
the average closing bid price and average daily trading volume
over the twenty (20) trading days preceding the Put Notice Date,
as reported by Bloomberg, LP.
"Transaction Documents" is defined in Section 3.7.
"Transfer Agent" shall mean Corporate Stock Transfer, Inc., the
transfer agent for the Company's Common Stock.
"Warrants" means the Initial Warrant and any Additional
Warrants.
EXHIBIT B
FORM OF
JOINT ESCROW INSTRUCTIONS
December __, 0000
Xxxxxx Xxxxxxxxxx Xxxxxxxxxxx
Xxxxx 0000 Four Bentall Centre
0000 Xxxxxxxx Xxxxxx
X.X. Xxx 00000
Xxxxxxxxx, XX X0X0X0
Attention: Xxxxx Xxxxx
RE: Alpha Venture Capital, Inc.
Dear Xx. Xxxxx:
As escrow agent for both eConnect, Inc., a Nevada corporation
(the "Company"), and Alpha Venture Capital, Inc., a Xxxx Islands
corporation (the "Purchaser") of Securities of the Company, who
is named in the Common Stock Purchase Agreement (the
"Agreement") between the Company and the Purchaser to which a
copy of these Joint Escrow Instructions is attached as Exhibit
B, you (hereafter, the "Escrow Agent") are hereby authorized and
directed to hold the shares of Common Stock of the Company,
along with immediately available funds for the purchase of the
Securities (the "Escrow Funds") delivered to the Escrow Agent
pursuant to the terms of the Agreement in accordance with the
following instructions. Capitalized terms used herein and not
otherwise defined herein shall have the respective meanings
provided in the Agreement.
1. Upon its acceptance of the Agreement, the Company shall
deliver or cause to be delivered to the Escrow Agent, common
stock share certificates ("Share Certificates") of thirty
million (30,000,000) unlegended shares in ten (10) certificates
of three million (3,000,000) each.
2. The Share Certificates delivered to the Escrow Agent
pursuant hereto shall be deposited for safekeeping with the
Escrow Agent (the "Escrow Account"). During the Escrow Period
(hereinafter defined), none of the Share Certificates deposited
in the Escrow Account shall become the property of Purchaser or
any other entity or be subject to the debts of Purchaser or any
other entity except as expressly provided herein, and the Escrow
Agent shall neither make nor permit any disbursements or
deliveries from the Escrow Account except as expressly provided
herein.
3. The Escrow Period shall begin on the effective date of the
Agreement and, except as provided in Section 4 below, shall
continue until terminated under Section 2.4(c) of the Agreement.
Notwithstanding the foregoing, if there remain Share
Certificates in the Escrow Account, all such Share Certificates
then remaining in the Escrow Account shall forthwith be
forwarded to Corporate Stock Transfer, Inc., the transfer agent
for the Company (the "Transfer Agent"), within five (5) business
days thereafter upon written request given to Escrow Agent by
the Company.
4. Not later than two (2) business days after the Share
Valuation Date, the Purchaser shall deliver a letter to the
Escrow Agent advising the Escrow Agent of the maximum number of
shares that may be sold by the Purchaser free of restrictive
legend pursuant to a Put Notice. Purchaser shall make payment
of the Put Amount (less any applicable legal or other fees)
within three (3) business days after delivery of such share
letter to the Escrow Agent ("Share Payment Date").
5. The Escrow Agent shall promptly, upon receipt of such
notice, deliver one or more Share Certificates to the Transfer
Agent for removal of legend pursuant to the Irrevocable
Instructions annexed hereto, and upon receipt of such Share
Certificates, shall cause same to be delivered to or for the
benefit of the Purchaser pursuant to written instructions of the
Purchaser.
6. The Company shall deliver to the Escrow Agent appropriate
written notice of any extension or amendment to the Agreement.
7. The Escrow Agent's duties hereunder may be altered,
amended, modified or revoked only by a writing signed by the
Company, the Purchaser and the Escrow Agent.
8. The Escrow Agent shall be obligated only for the
performance of such duties as are specifically set forth herein
and may rely and shall be protected in relying or refraining
from acting on any instrument reasonably believed by the Escrow
Agent to be genuine and to have been signed or presented by the
proper party or parties. The Escrow Agent shall not be
personally liable for any act the Escrow Agent may do or omit to
do hereunder as Escrow Agent while acting in good faith, and any
act done or omitted by the Escrow Agent pursuant to the advice
of the Escrow Agent's attorneys-at-law shall be conclusive
evidence of such good faith.
9. The Escrow Agent is hereby expressly authorized to
disregard any and all warnings given by any of the parties
hereto or by any other person or corporation, excepting only
orders or process of courts of law and is hereby expressly
authorized to comply with and obey orders, judgments or decrees
of any court. In case the Escrow Agent obeys or complies with
any such order, judgment or decree, the Escrow Agent shall not
be liable to any of the parties hereto or to any other person,
firm or corporation by reason of such decree being subsequently
reversed, modified, annulled, set aside, vacated or found to
have been entered without jurisdiction.
10. The Escrow Agent shall not be liable in any respect on
account of the identity, authorities or rights of the parties
executing or delivering or purporting to execute or deliver the
Agreement or any documents or papers deposited or called for
hereunder.
11. The Escrow Agent shall be entitled, at its own expense, to
employ such legal counsel and other experts as the Escrow Agent
may deem necessary properly to advise the Escrow Agent in
connection with the Escrow Agent's duties hereunder, may rely
upon the advice of such counsel, and may pay such counsel
reasonable compensation therefor.
12. The Escrow Agent's responsibilities as Escrow Agent
hereunder shall terminate if the Escrow Agent shall resign by
written notice to the Company and the Purchaser. In the event
of any such resignation, the Purchaser and the Company shall
appoint a successor Escrow Agent.
13. If the Escrow Agent reasonably requires other or further
instruments in connection with these Joint Escrow Instructions
or obligations in respect hereto, the necessary parties hereto
shall join in furnishing such instruments.
14. It is understood and agreed that should any dispute arise
with respect to the delivery and/or ownership or right of
possession of the documents held by the Escrow Agent hereunder,
the Escrow Agent is authorized and directed in the Escrow
Agent's sole discretion (a) to retain in the Escrow Agent's
possession without liability to anyone all or any part of said
documents or Escrow Funds until such disputes shall have been
settled either by mutual written agreement of the parties
concerned or by a final order, decree or judgment of a court of
competent jurisdiction after the time for appeal has expired and
no appeal has been perfected, but the Escrow Agent shall be
under no duty whatsoever to institute or defend any such
proceedings, or (b) to deliver the Escrow Funds and any other
property and documents held by the Escrow Agent hereunder to a
state or federal court having competent subject matter
jurisdiction and located in the State and City of New York in
accordance with the applicable procedure therefor.
15. The Company and the Purchaser agree jointly and severally
to indemnify and hold harmless the Escrow Agent from any and all
claims, liabilities, costs or expenses in any way arising from
or relating to the duties or performance of the Escrow Agent
hereunder other than any such claim, liability, cost or expense
to the extent the same shall have been determined by final,
unappealable judgment of a court of competent jurisdiction to
have resulted from the gross negligence or willful misconduct of
the Escrow Agent.
16. Any notice required or permitted hereunder shall be given
in writing (unless otherwise specified herein) and shall be
deemed effectively given upon personal delivery or three
business days after deposit in the United States Postal Service,
by registered or certified mail with postage and fees prepaid,
addressed to each of the other parties thereunto entitled at the
following addresses, or at such other addresses as a party may
designate by ten days advance written notice to each of the
other parties hereto.
If to Company:
eConnect
2500 Xxx Xxxxxxxx Xxxxxx, Xxxxx 000
Xxx Xxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxx Xxxxxx
Fax No.: (000) 000-0000
With a copy to:
Xxxxx X. Xxxxxxxx, Esq.
0000 Xxxxx Xxxxxx
Xxxxx 000
Xxxxxxx Xxxxx, Xxxxxxxxxx 00000
Fax No.: (000) 000-0000
If to Purchaser:
Alpha Venture Capital, Inc.
X.X. Xxx 00
Xxxxxx Xxxxxxxxx
Xxxx Xxxxxxx
Attention: Xx. Xxxxx Xxxxxx, Director
Fax No.: (000) 000-0000
With a copy to:
Xxxxxx Xxxxxx LLP
The Chrysler Building
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxxxxxx X. Xxxxxxx, Esq.
Fax No.: (000) 000-0000
If to Escrow Agent:
Dundee Securities Corporation
Suite 3424 Four Bentall Centre
0000 Xxxxxxxx Xxxxxx
X.X. Xxx 00000
Xxxxxxxxx, XX X0X 0X0
Attention: Xxxxx Xxxxx
Fax No.: (000) 000-0000
16. By signing these Joint Escrow Instructions, the Escrow
Agent becomes a party hereto only for the purpose of these Joint
Escrow Instructions. The Escrow Agent does not become a party
to the Agreement. The Company and the Purchaser have become
parties hereto by their execution and delivery of the Agreement,
as provided therein.
17. This instrument shall be binding upon and inure to the
benefit of the parties hereto, and their respective successors
and permitted assigns and shall be governed by the laws of the
State of New York without giving effect to principles governing
the conflicts of laws. A facsimile transmission of these
instructions signed by the Escrow Agent shall be legal and
binding on all parties hereto.
18. The rights and obligations of any party hereto are not
assignable without the written consent of the other parties
hereto.
IN WITNESS WHEROF, the parties hereto have caused these
Joint Escrow Instructions to be executed by the undersigned,
thereunto duly authorized, as of the date first set forth above.
eConnect
By:______________________________
Xxxxxx X. Xxxxxx, President
Alpha Venture Capital, Inc.
By: _____________________________
Name:
___________________________
Title:
____________________________
Dundee Securities Corporation
By: _____________________________
Name:
___________________________
Title:
____________________________
