EXHIBIT 1.1
STOCK PURCHASE AGREEMENT
This stock purchase agreement ("Agreement") is made effective April 20,
2000 by and between Accesspoint Corporation, a Nevada corporation
("Accesspoint") and the purchaser(s) signatory hereto pursuant to the Signature
Page and Questionnaire ("Private Purchaser"). Accesspoint has received an offer
to purchase certain shares of common voting stock ("Shares") of Accesspoint by
Private Purchaser, and Accesspoint and Private Purchaser agree as set forth
herein and represent to each other with regard thereto as follows:
1. Accesspoint is a duly organized Nevada corporation. The Articles of
Incorporation of Accesspoint were filed on June 16, 1997. Accesspoint is
authorized by its Articles of Incorporation to issue up to 25,000,000 shares of
common voting stock.
2. Neither Accesspoint nor any of its officers, directors, employees, agents
or representatives have made any representation or statement of opinion
regarding the value of Accesspoint or the Shares, Private Purchaser is
purchasing the Shares purely on a speculative basis and confirms that Private
Purchaser has been given no reason to believe that Private Purchaser will
receive any return on the purchase of Shares.
3. Private Purchaser has offered to purchase the number of Shares at a price
per share set forth on the Signature Page and Questionnaire which is attached
hereto, incorporated herein, and made a part hereof, for a total purchase price
as set forth on the Signature Page and Questionnaire. The purchase price shall
be payable in cash or cash equivalent representing immediately available funds
to the satisfaction of Accesspoint. Private Purchaser shall pay the purchase
price prior to the issuance of the Shares. The Shares may be sold from
authorized but unissued shares of Accesspoint, treasury shares held by
Accesspoint, or shares held by a third party for the benefit of Accesspoint.
4. Private Purchaser understands that Private Purchaser must bear the economic
risk of the investment for an indefinite period of time because the Shares will
be restricted and no public market will exist for the Shares. Private Purchaser
understands the speculative nature of investment in Accesspoint and that Private
Purchaser could lose Private Purchaser's entire purchase price payment.
5. Private Purchaser represents that it has been called to Private Purchaser's
attention that Private Purchaser's proposed investment in Accesspoint involves a
high degree of risk which may result in the loss of the total amount of that
investment.
6. Private Purchaser acknowledges that Accesspoint has made available to
Private Purchaser or Private Purchaser's personal advisors the opportunity to
obtain any and all information required to evaluate the merits and risks of
purchase of the shares, The Accesspoint has, prior to the sale of the Shares,
accorded Private Purchaser and Private Purchaser's representative, if any, the
opportunity to ask questions and receive answers concerning the terms and
conditions of the proposed purchase and to obtain any additional information
necessary to evaluate the merits and risks of the purchase.
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7. Private Purchaser and (if applicable) Private Purchaser's personal advisors
and representatives have had an opportunity to ask questions of and receive
satisfactory answers from Accesspoint, or any person or persons acting on
Accesspoint's behalf, concerning the terms and conditions of Private Purchaser's
proposed investment in Accesspoint, and all such questions have been answered to
the complete satisfaction of Private Purchaser.
8. Private Purchaser acknowledges that a subsidiary of Accesspoint, Processing
Source International, Inc. ("PSI"), and certain officers of PSI, are subject to
a stipulated judgment and permanent injunction in an action captioned
Cardservice International, Inc. v. Xxxxxxx Xxxx, Xxxxxx Xxxxxx, and Processing
Source International, et al., filed as case number BC205489 in Superior Court,
Los Angeles County, California.
9. Private Purchaser represents that all of the information provided by
Private Purchaser or Private Purchaser's representatives to Accesspoint is true,
correct, accurate and current and that Private Purchaser is not subject to
backup withholding. Private Purchaser specifically represents that all of the
information provided on the Signature Page and Questionnaire is true, correct,
accurate and current.
10. The personal, business and financial information of Private Purchaser which
may have been provided to Accesspoint, if any, and in any form, is complete and
accurate, and presents a true statement of Private Purchaser's financial
condition.
11. Private Purchaser has adequate means of providing for Private Purchaser's
current needs and possible personal contingencies, and Private Purchaser has no
need in the foreseeable future to sell the Shares for which Private Purchaser
hereby subscribes. Private Purchaser is able to bear the economic risks of
Private Purchaser's purchase of Shares and, consequently, without limiting the
generality of the foregoing, Private Purchaser is able to hold Private
Purchaser's Shares for an indefinite period of time, and Private Purchaser has a
sufficient net worth to sustain a loss of Private Purchaser's entire investment
in Accesspoint in the event such loss should occur.
12. If Private Purchaser is an individual, Private Purchaser is 18 years of age
or older.
13. Private Purchaser understands that the Shares will not be transferable
except under limited circumstances.
14. Private Purchaser is acquiring the Shares for Private Purchaser's own
account for investment with no present intention of dividing Private Purchaser's
interest with others or of reselling or otherwise disposing of all or any
portion of the same. Private Purchaser shall not engage in a distribution of
the Shares.
15. Private Purchaser has such knowledge and experience in financial and
business matters that Private Purchaser is capable of evaluating the merits and
risks of an investment in Accesspoint or (if applicable) Private Purchaser and
Private Purchaser's Representative, together, have such knowledge and experience
in financial and business matters that Private Purchaser and Private Purchaser's
Private Purchaser Representative are capable of evaluating the merits and risks
of the Prospective investment in Accesspoint.
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16. The Shares will be acquired for Private Purchaser's own account for
investment in a manner which would not require registration pursuant to the
provisions of the Act, as amended, and Private Purchaser does not now have any
reason to anticipate any change in Private Purchaser's circumstances or other
particular occasion or event which would cause Private Purchaser to sell or
otherwise dispose of the Shares.
17. Private Purchaser understands that the Commissioner of Corporations for the
State of California or any other state ("Commissioner") has not or will not
recommend or endorse a purchase of the Shares.
18. Private Purchaser hereby represents and warrants that Private Purchaser's
total purchase of Shares shall not exceed 10% of Private Purchaser's net worth
(exclusive of principal residence, mortgage thereon, home furnishings and
automobiles).
19. Private Purchaser: (i) has a pre-existing personal or business relationship
with Accesspoint, its officers, directors or its Affiliates or representatives,
and (ii) meets those certain standards involving Private Purchaser's minimum net
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worth and annual income as established by the California Commissioner of
Corporations relating to Private Purchaser's income and net worth, or is an
Accredited Investor as defined in rule 501 (a) of Regulation D as promulgated by
the Securities and Exchange Commission. The foregoing income and net worth is
considered to be indicative of Private Purchaser's ability to be sophisticated
regarding the proposed purchase of shares.
20. Private Purchaser is not a member of the NASD or other self-regulatory
agency which would require prior approval of a purchase of the shares.
21. Private Purchaser acknowledges that Private Purchaser understands the
meaning and legal consequences of the representations, warranties, and covenants
set forth herein, and that Accesspoint has relied on such representations,
warranties and covenants.
22. Private Purchaser acknowledges and understands that the Shares will be
subject to transfer and sale restrictions imposed pursuant to SEC Rule 144 of
the Rules promulgated under the Securities Act of 1933 ("Act") and the
regulations promulgated thereunder. Private Purchaser shall comply with Rule
144 and with all policies and procedures established by Accesspoint with regard
to Rule 144 matters. Private Purchaser acknowledged that Accesspoint or its
attorneys or transfer agent may require a restrictive legend on the certificate
or certificates representing the Shares pursuant to the restrictions on transfer
of the Shares imposed by Rule 144.
23. Notwithstanding anything in this Agreement to the contrary, the undersigned
Acknowledges that: (i) the Shares are subject to restrictions on transfer or
sale imposed pursuant to Rule 144; (ii) the Shares are being purchased in a
private transaction which is not part of a distribution of the Shares; (iii) the
undersigned intends to hold the Shares for the account of the undersigned and
does not intend to sell the shares as a part of a distribution or otherwise; and
(iv) neither the undersigned nor the seller of the Shares is an underwriter for
purposes of Rule 144.
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A legend regarding Rule 144 restrictions may be placed upon the certificate
evidencing ownership of the Shares.
24. Private Purchaser acknowledges that Private Purchaser is aware that there
are substantial restrictions on the transferability of the Shares. Because the
Shares will not, and Private Purchaser has no right to require that the Shares,
be registered pursuant to the provisions of the Act or otherwise, Private
Purchaser agrees not to sell, transfer, assign, pledge, hypothecate or otherwise
dispose of any Shares unless such sale is exempt from such registration pursuant
to the provisions of the Act. Private Purchaser further acknowledges that
Accesspoint has no obligation to assist Private Purchaser in obtaining any
exemption from any registration requirements Imposed by applicable law. Private
Purchaser also acknowledges that Private Purchaser shall be responsible for
compliance with all conditions on transfer imposed by the Commissioner for any
expenses incurred by Accesspoint for legal and accounting services in connection
with reviewing such a proposed transfer and issuing opinions in connection
therewith.
25. Private Purchaser understands and agrees that the following restrictions
and limitations are applicable to Private Purchaser's purchase and any sale,
transfer, assignment, pledge, hypothecation or other disposition of Shares
pursuant to Section 4(2) of the Act and Regulation D promulgated pursuant
thereto:
25.1. Private Purchaser agrees that notwithstanding any other restrictions
placed on the sale or transfer of the Shares pursuant to this Agreement, Rule
144, or otherwise, the Shares shall not be sold, pledged, hypothecated or
otherwise disposed of unless the Shares are registered pursuant to the Act and
applicable state securities laws or are exempt therefrom; and
25.2. A legend in substantially the following form may be placed on any
certificate(s) or other documents evidencing the Shares:
THE SECURITIES REPRESENTED BY THIS INSTRUMENT OR DOCUMENT HAVE
BEEN ACQUIRED FOR INVESTMENT ONLY AND HAVE NOT BEEN REGISTERED
PURSUANT TO THE PROVISIONS OF THE SECURITIES ACT OF 1933 AS
AMENDED ("ACT"), AND HAVE BEEN OFFERED AND SOLD IN RELIANCE UPON
THE EXEMPTION SET FORTH IN SECTIONS 4(1) OR 4(2) OF THE ACT AND
UPON RULE 504 OF REGULATION D PROMULGATED PURSUANT THERETO.
WITHOUT SUCH REGISTRATION, SUCH SECURITIES MAY NOT BE SOLD,
TRANSFERRED, ASSIGNED, PLEDGED, HYPOTHECATED OR OTHERWISE
DISPOSED OF, EXCEPT UPON DELIVERY TO ACCESSPOINT OF AN OPINION
OF COUNSEL SATISFACTORY TO ACCESSPOINT THAT REGISTRATION IS NOT
REQUIRED FOR SUCH TRANSFER OR THE SUBMISSION TO ACCESSPOINT OF
SUCH OTHER EVIDENCE AS MAY BE SATISFACTORY TO ACCESSPOINT TO THE
EFFECT THAT ANY SUCH TRANSFER SHALL NOT BE IN VIOLATION OF THE
ACT, APPLICABLE STATE SECURITIES LAWS OR ANY RULE OR REGULATION
PROMULGATED THEREUNDER.
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26. Private Purchaser may not cancel, terminate, or revoke this Agreement, or
any agreement of Private Purchaser made hereunder, and this Agreement shall
survive the death, dissolution, or disability of Private Purchaser and shall be
binding upon the heirs, executors, administrators, successors and assigns of
Private Purchaser.
27. This Agreement constitutes the entire agreement among the parties hereto
with respect to the subject matter hereof and may be amended only by a writing
executed by all parties hereto.
28. This Agreement shall be enforced, governed and construed in all respects in
accordance with the laws of the State of California without giving effect to the
conflicts of laws provisions. Private Purchaser hereby agrees that any suit,
action or proceeding with respect to this Agreement, any amendments or any
replacements hereof, and any transactions relating hereto shall be brought in
the state courts of, or the federal courts in, the State of California, and
Private Purchaser hereby irrevocably consents and submits to the jurisdiction of
such courts for the purpose of any such suit, action or proceeding, and Private
Purchaser agrees that service of process on Private Purchaser in such suit,
action or proceeding may be made In accordance with the notice provisions of
this Agreement, In any such action, venue shall lie exclusively in Orange
County, California. Private Purchaser hereby waives, and agrees not to assert
against Accesspoint, or any successor assignee thereof, by way of motion, as a
defense or otherwise, in any such suit, action or proceeding, (i) any claim that
Private Purchaser is not personally subject to the jurisdiction of the above-
named courts or that property is exempt or immune from set-off, execution or
attachment either prior to judgment or in execution thereof, and (ii) to the
extent permitted by applicable law, any claim that such suit, action or
proceeding is brought in an inconvenient forum or that the venue of suit, action
or proceeding is improper or that this Agreement or any amendments or any
replacements hereof may not be enforced in, or by such courts.
THE SHARES OFFERED HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE "ACT"), OR THE SECURITIES LAWS OF CERTAIN STATES, AND ARE
BEING OFFERED AND SOLD IN RELIANCE ON AN EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE ACT AND SUCH LAWS. THE SHARES HAVE NOT BEEN APPROVED OR
DISAPPROVED BY THE SECURITIES AND EXCHANGE COMMISSION, ANY STATE SECURITIES
COMMISSION OR OTHER REGULATORY AUTHORITY.
PRIVATE PURCHASERS MAY BE REQUIRED TO HOLD THE SHARES INDEFINITELY UNLESS
SUCH SHARES ARE SUBSEQUENTLY REGISTERED UNDER THE SECURITIES ACT OF 1933 ("ACT")
OR AN EXEMPTION FROM SUCH REGISTRATION IS AVAILABLE. NO SHARES MAY BE SOLD,
ASSIGNED OR OTHERWISE TRANSFERRED UNLESS ACCESSPOINT AND ITS LEGAL COUNSEL HAVE
RECEIVED EVIDENCE SATISFACTORY TO BOTH THAT SUCH TRANSFER DOES NOT INVOLVE A
TRANSACTION REQUIRING QUALIFICATION OR REGISTRATION UNDER STATE OR FEDERAL
SECURITIES LAWS AND IS IN COMPLIANCE WITH SUCH LAWS.
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IN WITNESS WHEREOF, Private Purchaser has provided the foregoing warranties
and undertaken the foregoing obligations and the parties have executed this
Agreement effective as of the date first set forth above.
ACCESSPOINT
Accesspoint Corporation, a Nevada corporation
By: /s/ Xxx X. Xxxxxxxxx
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Xxx X. Xxxxxxxxx,
Chief Executive Officer
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Private Purchaser
[See Signature Page and Questionnaire]
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SIGNATURE PAGE AND QUESTIONAIRE TO STOCK PURCHASE AGREEMENT
DATED APRIL 4, 2000, AMONG ACCESSPOINT CORPORTION
AND THE SUBSCRIBER(S) NAMED BELOW
If applicable, the undersigned further represents and warrants as indicated
below by the undersigned's initials:
I. ACCREDITED INVESTOR STATUS
A. Individual investors: (Initial one or more of the following three
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statements)
1. __X__ I certify that I am an accredited investor because I have
had individual income (exclusive of any income earned by my
spouse) of more than US$200,000 in each of the most recent two
years and I reasonably expect to have an individual income in
excess of US$200,000 for the current year.
2. ____ I certify that I am an accredited investor because I have
had joint income with my spouse in excess of US$300,000 in each
of the two most recent years and I reasonably expect to have
joint income with my spouse in excess of $300,000 for the current
year.
3. ____ I certify that I am an accredited investor because I have
an individual net worth, or my spouse and I have a joint net
worth, in excess of US$1,000,000.
B. Partnerships, corporations, trusts or other entities:
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(Initial one of the following statements)
1. The undersigned hereby certifies that it is an accredited
investor because it is:
________ a. an employee benefit plan whose total assets exceed
US$5,000,000;
________ b. an employee benefit plan whose investment decisions are made
by a plan fiduciary which is either a bank, savings and loan
association or an insurance company (as defined in Section
3(a) of the Securities Act) or an investment adviser
registered as such under the Investment Advisers Acts of
1940;
________ c. a self-directed employee benefit plan, including an
Individual Retirement Account, with investment decisions
made solely by persons that are accredited investors;
________ d. an organization described in Section 501(c)(3) of the
Internal Revenue Code of 1986, as amended (the "IRC"), not
formed for
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the specific purpose of acquiring the Shares with total
assets in excess of US$5,000,000;
________ e. any corporation, partnership or Massachusetts or similar
business trust, not formed for the specific purpose of
acquiring the Shares, with total assets in excess of
US$5,000,000; or
________ f. a trust with total assets in excess of US$5,000,000, not
formed for the specific purpose of acquiring the Shares,
whose purchase is directed by a person who has such
knowledge and experience in financial and business matters
that he is capable of evaluating the merits and risks of an
investment in the Shares.
________ 2. The undersigned hereby certifies that it is an accredited
investor because it is an entity in which each of the equity
owners qualifies as an accredited investor under items A(1), (2)
or (3) or item B(1) above.
4. Indemnification. The undersigned agrees, to the fullest extent
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permitted pursuant to law, to indemnify, defend, and hold harmless Accesspoint
Corporation and its agents, representatives and employees from and against all
liability, damage, loss, cost and expense (including reasonable attorneys' fees)
which they may incur by reason of the failure of the undersigned to fulfill any
of the terms or conditions of the Stock Purchase Agreement or this Signatory
Page and Questionnaire, or by reason of any inaccuracy or omission in the
information furnished by the undersigned herein or any breach of the
representations and warranties made by the undersigned herein or in connection
with the Memorandum, or in any document provided by the undersigned, directly or
indirectly, to Accesspoint Corporation.
5. Rule 144. Notwithstanding anything in this Agreement to the
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contrary, the undersigned Acknowledges that: (i) the Shares are subject to
restrictions on transfer or sale imposed pursuant to Rule 144 promulgated under
the Securities Act of 1933; (ii) the Shares are being purchased in a private
transaction which is not part of a distribution of the Shares; (iii) the
undersigned intends to hold the Shares for the account of the undersigned and
does not intend to sell the shares as a part of a distribution or otherwise; and
(iv) neither the undersigned or the seller of the Shares is an underwriter for
purposes of Rule 144. A legend regarding Rule 144 restrictions may be placed
upon the certificate evidencing ownership of the Shares.
6. Stock Purchase Agreement. This Signatory Page and Questionnaire
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is a part of that certain Stock Purchase Agreement by and between the
undersigned and Accesspoint Corporation. This Signatory Page and Questionnaire
is incorporated by reference into the Stock Purchase Agreement, and the Stock
Purchase Agreement is incorporated by reference into this Signatory Page and
Questionnaire.
IN WITNESS WHEREOF, the Investor has executed this Securities Purchase
Agreement this 4/th/ day of April 2000.
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27,000 X $5.00 = $135,000.00
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Number of Shares Purchase Price Total Purchase Price
Being Purchased Per Share
If the Investor is an INDIVIDUAL, and if purchased as JOINT TENANTS,
as TENANTS IN COMMON, or as COMMUNITY PROPERTY:
Xxxxxx Xxxxxx
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Print Name(s)
By: /s/ Xxxxxx Xxxxxx
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Signature(s) of Purchaser(s)
April 4, 2000 0 Xxxxx Xxxxx, Xxxxxx, XX 00000
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Date Address
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