CONTINENTAL ADVISORS SA
00, XXX XXXXXX
X-0000 XXXXXXXXXX
MASTER SELLING AGREEMENT
15 September 2005
CONFIDENTIAL
AccuPoll Holding Corp.
00000 Xxx Xxxx Xxxxxx - Xxxxx 000
Xxxxxx, Xxxxxxxxxx 00000
ATTENTION: XXXXXXX XXXXX, CHIEF EXECUTIVE OFFICER
Gentlemen:
THIS LETTER OF AGREEMENT (THE "AGREEMENT") SHALL CONFIRM THE ENGAGEMENT OF
CONTINENTAL ADVISORS SA, ("CONTINENTAL ADVISORS") BY ACCUPOLL HOLDING CORP. OR
AFFILIATES (THE "COMPANY"), AS THE COMPANY'S MASTER PLACEMENT AGENT TO ARRANGE
AND NEGOTIATE A PRIVATE PLACEMENT (THE "PRIVATE PLACEMENT") OF CERTAIN DEBT OR
EQUITY SECURITIES OF THE COMPANY (TOGETHER, THE "SECURITIES") THROUGH OTHER
DESIGNATED PLACEMENT AGENTS. THE PRIVATE PLACEMENT SHALL BE MADE PURSUANT TO ONE
OR MORE EXEMPTIONS FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), AND ANY APPLICABLE SECURITIES LAWS OF ANY STATE
OR OTHER JURISDICTION (THE "BLUE SKY LAWS"). THE PRIVATE PLACEMENT WILL HAVE
AGGREGATE GROSS PROCEEDS OF APPROXIMATELY US$20,000,000. THE PRIVATE PLACEMENT
WILL BE SUBJECT TO THE FOLLOWING TERMS AND CONDITIONS.
1. Retention. Subject to the terms and conditions of this Agreement,
the Company hereby appoints Continental Advisors to act on a "best
efforts" basis as its master placement agent during the
Authorization Period (hereinafter defined) to privately place the
Securities in the Private Placement, in amounts and on terms and
conditions satisfactory to the Company. Continental Advisors hereby
accepts such agency and agrees, subject to the terms and conditions
of this Agreement, to use its best efforts during the Authorization
Period (as defined in section 2 below) to arrange the sale of the
Securities through the Private Placement. Continental Advisors
intends to sell the Securities to Non-US Persons pursuant to
Regulation S or Regulation D, to be determined, and to negotiate and
arrange the sale of the Securities through other placement agents in
both the US and Europe.
It is initially intended that the terms of the Private Placement
will either be a sale of Convertible Preferred Shares (the
"Preferred Shares", term sheet attached as Exhibit A, or as amended)
or Convertible Promissory Notes (the "Notes"), due in six months
from the date of issuance, and convertible into common stock of the
Company at the rate of US$_______ per share, or a sale of common
stock of the Company at US$_______ per share, to be determined. The
Company shall have the right to extend the maturity of the Notes one
time for an additional six months, in its sole and absolute
discretion by providing written notice to the holders of the Notes
at any time prior to Maturity.
The Company will agree to file a registration statement with the US Securities
and Exchange Commission, upon which the common stock issuable from the
conversion of the Preferred Shares in accordance with the terms and conditions
as defined in the term sheet, or if Notes within 90 days following the closing
of the Private Placement shall the common stock issuable be registered. The
Company shall use its best efforts to have such registration statement declared
effective by the Securities and Exchange Commission as soon as possible after
filing.
The Company understands and agrees that in soliciting offers to purchase
Securities from the Company pursuant to this Agreement and in assuming its other
obligations hereunder, Continental Advisors is acting solely as agent for the
Company and not as principal, and that Continental Advisor's responsibility in
respect of its engagement hereunder is limited to a "best efforts" basis in
placing the Securities, with no understanding, expressed or implied, on
Continental Advisor's part of a commitment to underwrite or purchase the
Securities or any other securities of the Company.
If the Company should unreasonably fail to deliver or make available securities
to a purchaser whose offer the Company has accepted by execution of a
subscription agreement in respect thereof which purchaser is not in breach of
such subscription agreement and all of whose funds to purchase such Securities
have been delivered, conditioned only upon the delivery or Securities, to the
Company or an escrow agent, satisfactory to the Company and for the benefit of
the Company, the Company (i) shall hold Continental Advisors harmless against
loss, claim or damage arising from or as a result of such failure by the Company
and (ii) shall pay to Continental Advisors any fee to which Continental Advisors
would be entitled hereunder in connection with the sale of such Securities as if
such sale had been consummated.
During the Authorization Period, the Company shall be prohibited from directly
or indirectly offering any of the Securities (or securities substantially
similar to the Securities from, or otherwise contacting, approaching or
negotiating with respect thereto with, any person introduced to the Company by
Continental Advisors. The Company shall promptly refer to Continental Advisors
all offers, inquiries and proposals relating to any placement of the Securities
made to the Company at any time during the Authorization Period.
It is understood that Continental Advisors is being engaged hereunder solely to
provide the services described in this Agreement to the Company and that
Continental Advisors is not acting as an agent or fiduciary of, and shall have
no duties or liabilities to, the equity holders of the Company or any third
party in connection with its engagement hereunder.
2. Authorization Period. Continental Advisor's engagement hereunder
shall become effective on the date hereof and, unless extended
writing by the company and the Continental Advisors, shall expire on
the earlier of (i) the final closing date of the Private Placement,
and (ii) 15 September 2006 (the "Termination Date"; the period from
the date thereof through the Termination Date being hereinafter
referred to as the "Authorization Period").
3. Offering Documents. The Company, with the assistance of Continental
Advisors, shall prepare a Confidential Offering memorandum, and such
amendments or supplements to each as Continental Advisors and the
Company may reasonably deem to be necessary, to effectuate the sale
of the Securities (the Offering Memorandum, and any such amendments
or supplements, are collectively referred to herein as the "Offering
Materials") . The Company authorizes Continental Advisors to
transmit the Offering Materials to potential purchasers of the
Securities, and shall furnish to Continental Advisors copies of the
Offering Materials in such quantities as Continental Advisors may
from time to time reasonably request. The Company shall prepare
forms of purchase agreements or subscription agreements containing
terms and conditions customary for private placement transactions to
be entered into by the Company and each purchaser of Securities,
which forms shall be provided to offerees only upon the review and
reasonable approval of both the Company and Continental Advisors.
The Company shall provide a copy of any and all subscription or
purchase agreements entered into between the Company and any person
or investor introduced to the Company by Continental Advisors.
4. Compensation. As compensation for Continental Advisor's services
hereunder, the Company shall pay Continental Advisors the finder's
fees set forth herein: (a) 13% of the Aggregate Consideration (as
defined below) received by the Company in connection with the
Private Placement, payable in cash promptly on the closing date on
which such Aggregate Consideration is paid, (b) a warrant to
purchase a number of shares of common stock of the Company equal to
thirteen percent (13%) of the total number of shares of common stock
issuable upon conversion or exercise of the Securities at an
exercise price equal to the conversion price of the Securities, if
they are convertible securities, or the offer price of the
Securities, if they are shares of common stock, (c) an additional 4%
of the Aggregate Consideration for up to the first one million
dollars ($1,000,000) received by the Company in connection with the
Private Placement commencing September 15, 2005, payable half in
cash (2%), and at the Company's full discretion, half (2%) in either
cash or warrants as described in (a) above, and (d) a warrant to
purchase six million (6,000,000) shares of common stock of the
Company through cashless exercise.
The Aggregate Consideration, for purposes of calculating Continental
Advisor's fee above, include all amounts received by the Company for
Securities sold by the Company in the Private Placement, as
applicable, to purchasers including any amounts paid into escrow,
any amounts payable in the future and any amounts payable upon
conversion, exchange or exercise of any Securities sold in the
Private Placement, as applicable, as received by the Company without
conditions or limitations inclusive of all amounts received by the
Company for Securities sold directly or indirectly by placement
agents in both the US and Europe.
5. Disbursements. Regardless of whether the sale of any Securities is
consummated, the Company will pay or cause to be paid the following
expenses in connection herewith: (i) the fees and disbursements of
the Company's counsel and other representatives and advisers; (ii)
the expenses in connection with the preparation and printing of the
Offering Materials and amendments and supplements thereto and the
mailing and delivering of copies thereof; (iii) the cost of printing
the purchase agreements or subscription agreements, if any, and any
other documents in connection with the offering, purchase, sale and
delivery of the Securities; (iv) the cost of distribution of the
materials outlined in this paragraph; (v) the expenses in connection
with the qualification of the securities for offering and sale under
state securities laws, if any, including any and all filing fees;
(vi) the costs of preparing certificates representing the
Securities; (vii) the costs and charges of any transfer agent or
registrar; and (viii) all other costs and expenses incident to the
performance of the Company's obligations hereunder and under the
purchase agreements or subscription agreements (including, without
limitation, any taxes payable in connection with the issuance, sale
and delivery of the Securities).
6. Expenses. In addition to the compensation payable to Continental
Advisors hereunder and regardless of whether the sale of any of the
Securities is consummated, the Company shall reimburse Continental
Advisors, upon requests made from time to time, for all of its
reasonable out-of-pocket expenses incurred in connection with its
engagement hereunder, including the fees, disbursements and other
charges of Continental Advisor's legal counsel (which reimbursements
shall be limited to actual out-of-pocket fees, disbursements and
other charges not to exceed $5,000 in the aggregate) and any travel
that may be necessary. All such expenses owed to Continental
Advisors at the time of the first closing and at subsequent closing
of the Private Placement will paid from the gross proceeds at the
closing(s).
7. Tail Period. In addition, if the Private Placement is not completed,
the Company shall pay to Continental Advisors a fee, which shall be
equal to the fee which would have been payable to Continental
Advisors if the securities discussed below had been sold by the
Company during the Authorization Period, based upon the Aggregate
Consideration received by the Company with respect to any Securities
(or securities of the Company substantially similar to the
securities) sold to any party at any time prior to the expiration of
180 days after the Termination Date if such party is one identified
to the Company by Continental Advisors during the Authorization
Period, and set forth in writing as delivered to the Company on or
prior to 30 days following the Termination Date.
8. Representations, Warranties and Covenants of the Company. The
Company represents and warrants to, and covenants with, Continental
Advisors as follows:
a. During the Authorization Period, the Company shall not use,
disseminate, publish, distribute or refer to any materials in
connection with any offering of Securities, including without
limitation, any Offering Materials, without Continental
Advisor's prior consent except for internal use among the
Company's personnel and representatives, which consent shall
not be unreasonably withheld or delayed.
b. The Company has not taken, and will not take, any action,
directly or indirectly, so as to cause any of the transactions
contemplated by this Agreement to fail to be entitled to
exemption from registration under all applicable securities
laws in jurisdiction in which Continental Advisors and the
Company agree to seek such an exemption. The Company shall
ensure that neither itself, nor any of its affiliates, nor any
person acting on behalf of the Company or any such affiliates,
has engaged or will engage in any general advertising or
general solicitation (as those terms are used in Regulation D
under the Securities Act) with respect to the Securities.
c. The Company shall, from time to time, take such action as
Continental Advisors may reasonably request to quality the
Securities for offering and sale as a private placement under
the securities laws of such states or other jurisdiction as
Continental Advisors may reasonably request, except for those
states in which the Company will be required to qualify or be
subject to be qualified as a foreign corporation or subject to
service of process, and to comply with such laws so as to
permit such offers and sales.
d. The Company shall make available to Continental Advisors
and/or shall agree to have professionally prepared at the
Company's expense, all financial statements, projections,
appraisals, surveys and other information which in Continental
Advisor' s reasonable judgment shall be necessary or
appropriate for the proper marketing of the Securities. The
Company shall, upon reasonable request, cause its directors,
officers, personnel, counsel, accountants, and other
representatives to meet with Continental Advisors or its
representatives to discuss all information relevant for
disclosure in any of the Offering Materials. The Company shall
cooperate in any reasonable investigation requested by
Continental Advisors or its representatives (including the
production of information at the Company's offices or xxxxx of
such information at the offices of Continental Advisors) for
the purpose of confirming the accuracy and completeness of the
statements contained in the Offering Materials.
e. The Offering Materials as of the date thereof and as of the
closing date of each sale of securities, will be true,
complete and correct in all material respects and do not, and
will not, contain any untrue statement of a material fact or
omit to state a material fact required to be stated therein or
necessary to make the statements contained therein, in light
of the circumstances under which they were made, not
misleading. The Company shall advise Continental Advisors
immediately of the occurrence of any event or other change
which results in the Offering Materials containing an untrue
statement of a material fact or omitting to state a material
fact required to be stated therein or necessary to make the
statements contained therein, in light of the circumstances
under which they were made, not misleading, and shall furnish
to Continental Advisors copies of amended or supplemented
Offering Materials that correct such statement or omission in
such quantities as Continental Advisors may from time
reasonably request upon being so advised. With respect to any
financial or other projections included or to be included in
the Offering Materials, the Company represents and warrants
that they have been, or will be, prepared in good faith on the
basis of what the Company believes were reasonable assumptions
when made. The Company recognizes and confirms that
Continental Advisors (i) will be using and relying primarily
on the information in the Offering Materials and information
available from generally recognized public sources in
performing the services contemplated hereunder without having
independently verified the same, (ii) does not assume
responsibility for the accuracy or completeness of such
information or of the Offering Materials and (iii) will not
make any appraisal of any assets of the Company.
f. (i) The Company has full corporate power and authority to
execute and deliver this Agreement and to perform its
obligations hereunder, and all consents, authorizations,
approvals and order required in connection with the execution,
delivery and performance hereof have been obtained, (ii) this
Agreement is a valid and binding obligation of the Company,
enforceable in accordance with its terms, except to the extent
that enforceability hereof may be limited by bankruptcy,
insolvency, reorganization, moratorium or similar laws
affecting creditors generally and general principles or
equity; and (iii) the execution, delivery and performance of
this Agreement will not conflict with, result in a breach of
any of the terms or provisions of, or constitute a violation
or a default under, any materials agreement or instrument to
which the Company or any of its subsidiaries is a party or by
which the Company or any of its subsidiaries is bound.
g. For the period beginning upon the closing of a Private
Placement and ending on the earlier of three years after the
final closing date of the sale of Securities or (ii) the date
the Company becomes a "reporting company" and is timely filing
all reports required to be filed with the Securities and
Exchange Commission, the Company shall furnish to Continental
Advisors or shall cause to be furnished to Continental
Advisors (A) copies of the Company's annual reports and other
financial reports at the earliest time that such reports are
made available to other third parties, (B) notice of any
material development affecting the Company, (C) any filings
made with the Securities and Exchange Commission or any
exchange on which any class of the Company's securities may be
or become listed or quoted and (D) such other information
concerning the business and financial condition of the Company
as Continental Advisors may from time to time reasonably
request or which is sent to the holders of the Securities.
h. The Company shall cause counsel to the Company to deliver, at
each closing of the sale of Securities, if requested by
Continental Advisors, an opinion addressed to Continental
Advisors and to each of the purchasers, covering such matters
as are typically covered in opinions delivered in connection
with private placements (including, without limitation, an
opinion to the effect that the placement of the Securities is
exempt from registration under the Securities Act), in form
and substance reasonably acceptable to both Continental
Advisors and its counsel. The Company shall also cause to be
furnished to Continental Advisors, at each closing of the sale
of the securities, (i) copies of other legal opinions,
"comfort" letters, certificates, agreements, and other
documents, if any, furnished to the purchasers of the
securities on such closing date and (ii) copies of all filings
made by the Company with the Securities and Exchange
Commission or state securities commissions, if any, in each
case, in form and substance reasonably satisfactory to
Continental Advisors.
9. Representations and Covenants of Continental Advisors. Continental
Advisors represents and warrants to, and covenants with, the Company
as follows:
a. None of Continental Advisors, its affiliates or any persons
acting on behalf of Continental Advisors or any such
affiliates, has engaged in or will engage in any general
solicitation or general advertising (as those terms are used
in Regulation D under the Securities Act) with respect to the
Securities.
b. Continental Advisors will use its best efforts to conduct the
offering and sale of the Securities so that the Securities are
sold in a transaction or series of transactions exempt from
registration under the Securities Act and all applicable
securities laws.
c. The offering Materials will be sent only to persons that
Continental Advisors reasonably believes are "accredited
investors" (as defined under Rule 501 (a) of the Securities
Act) who are either Non-US Persons (as defined in Regulation
S), or who are residents of states identified by Continental
Advisors to, and acceptable by, the Company and its counsel.
d. Continental Advisors will not make any representation or
warranty as to the Securities or the Company except those
expressly stated in the Offering Materials.
e. (i) Continental Advisors has full corporate power and
authority to execute and deliver this Agreement and to perform
its obligations hereunder, and all consents, authorizations,
approvals and orders required in connection with the
execution, delivery and performance hereof have been obtained;
(ii) this Agreement is a valid and binding obligation of
Continental Advisors, enforceable in accordance with its
terms, except to the extent that the enforceability hereof may
be limited by bankruptcy, insolvency, reorganization,
moratorium or similar laws affecting creditors generally and
general principles of equity; and (iii) the execution,
delivery and performance of this Agreement will not conflict
with, result in a breach of any of the terms or provisions of,
or constitute a violation or a default under, any material
agreement or instrument to which Continental Advisors or any
of its subsidiaries is a party or by which Continental
Advisors or any its subsidiaries is bound.
10. Indemnification. The Company agrees to the indemnification and other
agreements set forth in the Indemnification Agreement attached
hereto, the provisions of which are incorporated herein by
reference.
11. Survival of Certain Provisions. The expense, indemnification,
reimbursement and contribution obligations of the Company provided
herein, the Company's obligation to pay Continental Advisors any
compensation earned pursuant hereto, and Continental Advisor's
confidentiality obligations set forth in this Agreement shall remain
operative and in full force and effect regardless of (i) any
withdrawal, termination or consummation of or failure to initiate or
consummate any transaction referred to in this Agreement, (ii) any
investigation made by or on behalf of Continental Advisors and (iii)
any termination or the completion or expiration of this Agreement or
Continental Advisor's engagement hereunder. Such survival shall be
for the period set forth in Section 14.b.
12. Notices. Notice given pursuant to any of the provisions of this
Agreement shall in writing ad shall be sent b certified mail, return
receipt request or recognized overnight courier, or delivered (a) if
to the Company, to Xxxxxxx Xxxxx, CEO, Accupoll, Inc., 00000 Xxx
Xxxx Xxx, Xxxxx 000, Xxxxxx, Xxxxxxxxxx 00000 and (b) if to
Continental Advisors, to Xxxxxxxx Xxxxxxx, Director, Continental
Advisors SA, 00 Xxx Xxxxxx, X-0000 Xxxxxxxxxx.
13. Future Advertisements. The Company agrees that Continental Advisors
has the right to place reasonable advertisements describing its
services to the Company under this Agreement in financial and other
newspapers and journals at its own expense following the date upon
which the Private Placement closes.
14. Confidentiality.
a. Any financial advice rendered by Continental Advisors pursuant
to this Agreement may not be disclosed publicity in any manner
without Continental Advisor's prior written approval (not to
be unreasonably withheld or delayed), except as may be
required by law or regulation or court order but subject to
the limitation below. If the Company is required or reasonably
expects to be required by legal or regulatory process or
requirement to disclose any of such advice, the Company shall
provide, to the extent practicable, Continental Advisors with
prompt notice thereof so that Continental Advisors may seek a
protective order or other appropriate remedy or take other
reasonable efforts to assure that all of such advice disclosed
will be covered by such order remedy. Whether or not such a
prospective other remedy is obtained, the Company shall
disclose only that portion of such advice, which the Company
reasonably determines it is required to disclose by such legal
or regulatory process or requirement.
b. Commencing from the execution of this Agreement and for a
period of two years after the Termination Date, Continental
Advisors agrees to maintain in strict confidence and not
disclose to any third party, any confidential information of
the Company, including, without limitation, any information
relating to any marketing, business plan, financial or
personnel matter relating to the Company, its present or
future products, sales, suppliers, customers, employees,
investors or business, whether in oral, written, graphic or
electronic form (the "Confidential Information"), except as
may be required by law or regulation or court order.
Confidential Information shall not include any information
which (i) becomes generally available to the public other than
as a result of a disclosure, directly or indirectly, by
Continental Advisors or any of its officers, directors,
shareholders, employees affiliates, agents or other
representatives (collectively with respect to any person,
"Agents"), (ii) is developed by Continental Advisors
independent from the Company or the Confidential Information
or (iii) becomes available to Continental Advisors on a
non-confidential basis from a source other than the Company or
its Agents which source is not bound by a confidentiality
agreement or other obligation to the Company. Continental
Advisors shall use the Confidential Information only to
perform its obligations under this Agreement, and for no other
purpose. Continental Advisors may disclose Confidential
Information to its employees, officers, agents, attorneys and
affiliates requiring access thereto for the purpose of
assisting Continental Advisors in the performance of its
obligations under this Agreement provided each such employee,
officer, agent, attorney or affiliate is bound by agreement to
maintain Confidential Information in confidence and to use
such information solely to perform Continental Advisor's
obligations hereunder. Continental Advisors will take all
steps necessary to ensure that its employees, officers,
agents, attorneys and affiliates comply with the terms and
conditions of this Agreement. Continental Advisors will
promptly notify the Company upon the discovery of any
unauthorized use or disclosure of any confidential
information. If Continental Advisors is required or reasonably
expects to be required by legal or regulatory process or
requirement to disclose any Confidential Information,
Continental Advisors shall provide to the extent practicable,
the Company with prompt notice thereof so that the Company may
seek a protective order or other appropriate remedy or take
other reasonable efforts to assure that all of such
Confidential Information disclosed will be covered by such
order or other remedy. Whether or not such a protective order
or other remedy is obtained, Continental Advisors shall
disclose only that portion of the Confidential Information
which Continental Advisors reasonably determines it is
required to disclose by such legal or regulatory process or
requirement.
15. Miscellaneous
a. This Agreement (including the attached Indemnification
Agreement) sets forth the entire agreement between the
Parties, supersedes and merges all prior written or oral
agreements with respect to the subject matter hereof, may only
be amended in writing and shall be governed by the laws of the
Grand Duchy of Luxembourg applicable to agreements made and to
be performed entirely within such state. The Parties shall
make reasonable efforts to resolve any dispute concerning this
Agreement, its construction or its alleged breach, by
face-to-face negotiations. Should such negotiations fail to
resolve the matter, the matter shall be finally decided by
bench trial in Luxembourg. In the event of any dispute arising
hereunder or in connection herewith, the prevailing party in
such dispute shall be entitled to recover its reasonable
attorney's fees, defence or prosecution costs, expert's fees
and costs of travel.
b. THE COMPANY (FOR ITSELF, ANYONE CLAIMING THROUGH IT OR IN ITS
NAME, AND ON BEHALF OF ITS EQUITY HOLDERS) AND CONTINENTAL
ADVISORS (FOR ITSELF, ANYONE CLAIMING THROUGH IT OR IN ITS
NAME, AND ON BEHALF OF ITS EQUITY HOLDERS) EACH HEREBY
IRREVOCABLY WAIVE ANY RIGHT TO TRIAL BY JURY IN ANY PROCEEDING
ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OF THE
CONTEMPLATED TRANSACTIONS, WHETHER NOW EXISTING OR HEREAFTER
ARISING, AND WHETHER SOUNDING IN CONTRACT, TORT OR OTHERWISE.
THE PARTIES AGREE THAT ANY OF THEM MAY FILE A COPY OF THIS
PARAGRAPH WITH ANY COURT AS WRITTEN EVIDENCE OF UNDERSTANDING
AMONG THE PARTIES IRREVOCABLY TO WAIVE A TRIAL BY JURY AND
THAT ANY PROCEEDING WHATSOEVER BETWEEN THEM RELATING TO THIS
AGREEMENT OR ANY OF THE CONTEMPLATED TRANSACTIONS SHALL
INSTEAD BE TRIED IN A COURT OF COMPETENT JURIDICTION BY JUDGE
SITTING WITHOUT A JURY.
c. This Agreement may not be assigned by either party without the
prior written consent of the other party.
d. If any provision of this Agreement is determined to be invalid
or unenforceable in any respect, such determination will not
effect such provision in any other respect or any other
provision of this Agreement, which will remaining full force
and effect.
e. This Agreement may be executed in two or more counterparts,
each of which shall be deemed to be an original, but all of
which together shall constitute one and the same instrument.
f. All waivers of any provision of breach of this Agreement must
be in writing, executed by the waiving party. No waiver of any
provision or breach of this Agreement shall be a waiver of any
other provision or breach of this Agreement or any subsequent
breach. This Agreement may not be amended or otherwise
modified except by an instrument signed by both the Company
and Continental Advisors.
Please confirm that the foregoing correctly sets forth our agreement by signing
and returning to Continental Advisors the enclosed duplicate copy of this
Agreement.
Very truly yours,
CONTINENTAL ADVISORS SA
By:
-----------------------------
Name:
---------------------------
Title:
--------------------------
Accepted and Agreed to as of the date first written above.
ACCUPOLL HOLDING CORP.
By: /s/ Xxxxxxx Xxxxx
---------------------------
Name: Xxxxxxx Xxxxx
Title: Chief Executive Officer
EXHIBIT A
Accupoll Holding Corp
Bridge Term Sheet
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Issuer...................................... Accupoll Holding Corp
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Securities Offered.......................... Up to 30,000 units. Each unit is comprised of 1 series B
convertible preferred stock together with 1000-3 year
warrants to purchase an additional share at $.10 and 1000-3
year warrants to purchase an additional share @ $.125. Each
Series B convertible preferred is convertible into 1000
shares of common stock at any time.
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Purchase Price.............................. Purchase price per unit shall be $100.00
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Separation.................................. The convertible preferred and warrants will be immediately
separable.
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Warrant Term................................ 3 years from the date of issuance.
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Offering Terms.............................. The units and its components are being offered directly by
the Company. The Purchase Price is payable upon delivery of
the Subscription and Registration Rights Agreements. The
units are being offered only to "accredited investors"
within the meaning of Rule 501 that are qualified
institutional buyers within the meaning of Rule 144-A of the
ACT
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OTC Bulletin Board Common Stock Ticker ACUP
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Restricted Securities The common shares being offered as part of the
unit and the shares underlying the warrants are not
registered under the ACT or any state securities laws.
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Registration Rights We have agreed to use our best efforts to file with the
Commission, a registration statement with respect to the
resale of the common stock and the common stock underlying
the warrants we sell in this offering within 30 days of
closing. If the registration statement is not filed within
30 days of closing or if it does not go "effective" within
60 days of closing (90 days if there is an SEC review) then
we will issue 5% more shares of common stock to each
investor for each 30 day period that the company is
delinquent in its efforts to provide registration and
effectiveness.
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Rights to Purchase more units Each purchaser of the units will have the right to purchase
additional units up to their original amount subscribed for
a period of 180 days from the effective date of the
Registration statement covering the shares offered, herein.
The additional units will carry the same terms, # of
warrants and registration rights as the original units
offered herein.
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