THE SECURITIES OFFERED HEREBY HAVE NOT BEEN REGISTERED PURSUANT TO THE
SECURITIES ACT OF 1933, AS AMENDED, OR ANY STATE SECURITIES LAW, AND SUCH
SECURITIES MAY NOT BE SOLD, TRANSFERRED OR OTHERWISE DISPOSED OF IN THE UNITED
STATES OR TO U.S. PERSONS (OTHER THAN DISTRIBUTORS) UNLESS THE SAME ARE
REGISTERED AND QUALIFIED IN ACCORDANCE WITH THE SECURITIES ACT AND ANY
APPLICABLE STATE SECURITIES LAWS, OR AN EXEMPTION FROM SUCH REGISTRATION AND
QUALIFICATION IS AVAILABLE HEDGING TRANSACTIONS INVOLVING THE SECURITIES OFFERED
HEREBY MAY NOT BE CONDUCTED UNLESS IN COMPLIANCE WITH THE SECURITIES ACT.
SECURITIES PURCHASE AGREEMENT
This SECURITIES PURCHASE AGREEMENT (this "Agreement") is entered into as of
the 23rd day of January, 1999 between _________________, a ____________ company
("Purchaser"), and GenesisIntermedia.com, Inc., a Delaware corporation (the
"Company").
WHEREAS the Company is in the business of conducting business as an
integrated marketing and business solutions provider utilizing conventional
media and interactive multimedia technologies as described in the Company's
Registration Statement on Form SB-2 on file with the United States Securities
and Exchange Commission (File No. 333-66281) (as amended through Amendment No.
3, the "Registration Statement"); and
WHEREAS the Company desires to sell certain of its shares of common stock
to Purchaser pursuant to the exemption from registration under the United States
Securities Act of 1933, as amended (the "Securities Act") provided by Regulation
S promulgated thereunder ("Regulation S") and Purchaser desires to acquire such
shares, on the terms and conditions set forth herein and in compliance with
Regulation S.
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants and agreements contained herein, and other good and valuable
consideration, the receipt of sufficiency of which are hereby acknowledged, and
intending to be legally bound hereby, the parties hereto hereby agree as
follows:
Section 1 ISSUANCE OF SHARES.
Section 1.1 Purchase and Sale of Shares; The Closing. In reliance upon the
representations of the Company contained in Section 1.3 hereof and subject to
the terms and conditions set forth herein, the Company shall sell to the
Purchaser and the Purchaser shall purchase from the Company ________ shares of
common stock of the Company (the "Shares") in consideration of payment by
Purchaser to the Company of _________________ (US$___________) (the "Purchase
Price"). The closing (the "Closing") of the purchase and sale of the Shares
shall be held at 10:00 a.m., Los Angeles time on __________, 1999 (the "Closing
Date"), at the principal executive offices of the Company or at such other time
or place as the parties hereto may mutually agree.
On the Closing Date, Purchaser will deliver to the Company (or to persons
at the direction of the Company) immediately available funds in the amount of
the Purchase Price by wire transfer to the account provided on the signature
page hereof ( or such other account as the Company shall specify in writing to
Purchaser). On the Closing Date, the Company will deliver to Purchaser
certificates representing the Shares.
Section 1.2 Representations and Warranties of the Company.
The Company represents and warrants to Purchaser that on the date hereof
and as of the Closing Date:
(a) The Company is a corporation duly organized, validly existing and in
good standing under the laws of the State of Delaware and is duly qualified as a
foreign corporation in each jurisdiction in which the character of the
properties owned or held under lease by it or the nature of the business
<PAGE>
transacted by it requires such qualification. The Company has all requisite
power to transact the business it interacts and purposes to transact, to execute
and deliver this Agreement and all other documents and agreements contemplated
hereby and thereby, and to perform the provisions hereof and thereof and to
consummate the transactions contemplated hereby and thereby.
(b) The execution , delivery and performance of this Agreement and all
other documents and agreements contemplated to be executed delivered and
performed by the Company, and the consummation of the transactions contemplated
hereby or thereby, have been duly authorized and approved by the Company. This
Agreement and all other documents and agreements contemplated hereby to be
executed and delivered by the company have each been duly authorized, executed
and delivered by, and each is the valid and binding obligation of the Company,
enforceable against it in accordance with its terms, except as may be limited by
applicable bankruptcy, reorganization, insolvency, moratorium or other similar
laws or by legal or equitable principles relating to or limiting creditors'
rights generally.
(c) The authorized capital stock of the company is 25,000,000 shares of
Common Stock, par value $.001, and 5,000,000 shares of Preferred Stock, par
value $.001, of which 3,060,000 shares of Common Stock are issued and
outstanding. The Shares will when issued, be duly and validly issued, fully paid
and nonassessable.
(d) The consummation of the transactions contemplated by this Agreement and
the performance of the terms and provisions of this Agreement and any other
documents or agreements contemplated hereby will not (i) contravene, result in
any breach of, or constitute a default under any indenture, mortgage, deed of
trust, bank loan or credit agreement, corporation charter, by-laws or other
material agreement or instrument to which the Company is a party or by which the
company or any of its properties is bound, (ii) conflict with or result in
breach of any of the terms, conditions or provisions of any order of any court,
arbitrator or federal, state, municipal or other governmental department,
commission, board, bureau, agency or instrumentality, domestic or foreign
(collectively, "Governmental Person") applicable to the company or (iii) violate
any material provision of any statute or other rule or regulation of any
Governmental Person applicable to the Company.
(e) No consent, approval or authorization of, or registration, filing or
declaration with, any person or entity is required for the transfer of the
Shares or the valid delivery of the Shares or for the performance by the company
of this Agreement of any other documents or agreements contemplated hereby,
other than the filings, registrations or qualifications under securities laws or
that may be required to be made or obtained in connection with the offers
transfer , sale or delivery of the Shares or any interest therein.
(f) Upon issuance or transfer, Purchaser shall acquire good and marketable
title to the Shares free and clear of all covenants, conditions, restrictions,
liens, pledges, charges, encumbrances, options and adverse claims of rights of
any kind whatsoever.
Section 2.3 Representations, Warranties and Covenants of Purchaser.
Purchaser represents, warrants and covenants to the Company that on the
date hereof, as of the Closing Date and as of the date of any transfer of
Shares:
(a) Purchaser has all requisite power to execute and deliver this
Agreement, and all other documents and agreements contemplated hereby and
thereby, and to perform the provisions hereof and thereof and to consummate the
transactions contemplated hereby and thereby.
(b) The execution, delivery and performance of this Agreement, and all
other documents and agreements contemplated hereby and thereby, and the
consummation of the transactions contemplated hereby and thereby, have been duly
authorized and approved by Purchaser. this Agreement, and all other documents
and agreements contemplated hereby and thereby have each been duly authorized,
executed and delivered by, and each is the valid and binding obligation of,
Purchaser enforceable against Purchaser in accordance with its terms, except as
may be limited by applicable bankruptcy, reorganization, insolvency, moratorium
or other similar laws or by legal or equitable principles relating to or
limiting creditors' rights generally.
(c) Purchaser is a company organized under the law of the British Virgin
Islands having its principal place of business in Tortola, B.V.I. Purchaser is
not a U.S. Person within the meaning of Regulation S.
2
<PAGE>
(d) Purchaser is an "accredited investor" within that meaning of Regulation
D under the Securities Act, and is acquiring the Shares for investment for its
own account, and not with a view to distribution subject, nevertheless, to any
requirement of law that the disposition of its property shall at all times be
within its control. Purchaser has such knowledge and experience in financial and
business matters that it is capable of evaluating the merits and risks of
purchasing the Shares. Purchaser is aware that if may be required to bear the
economic risk of an investment in the Shares for an indefinite period, and it is
able to bear such risk for any indefinite period. Purchaser acknowledges (a)
that the Shares being acquired by it are not being registered under the
Securities Act as not involving any public offering, (b) the issuance of such
securities is exempt from registration under Regulation S us being made in an
offshore transaction (as defined in such Regulation) not to a U.S. person (as
defined in such Regulation) and (c) that the Company's reliance on such
exemption is predicted in part on the representations made to the Company by the
Purchaser in this Section 1.3.
(e) Purchaser acknowledges and agrees that until one year after the
conclusion of the transactions contemplated hereby, an offer or sale of the
Shares within the United States may violate the registration requirements of the
Securities Act if such offer or sale of the Shares within the United States may
violate the registration requirements of the Securities Act if such offer or
sale is made otherwise than in accordance with Rule 144A under the Securities
Act. Purchaser agrees to comply with the offering restrictions provided in Rule
902(g) of Regulation S and that it will resell the Shares only in accordance
with Rules 903 or 904 of Regulation S (copies of which have been provided to
Purchaser), pursuant to registration under the Securities Act or pursuant to an
available exemption from such registration.
(f) Purchaser has received and reviewed a complete copy of the Company's
Registration Statement on Form SB-2 and has had an opportunity to make such
inquiry of management of the Company as Purchaser has desired.
(g) Purchaser acknowledges receipt of a confirmation of the type described
in the last sentence of Section 5.1.
Section 2 CONDITIONS TO OBLIGATIONS OF PURCHASER. The obligation of
Purchaser to purchase and pay for the Shares on the Closing Date shall be
subject to the satisfaction on or before the closing date of the conditions
hereinafter set forth.
Section 2.1 Proceedings Satisfactory. All proceedings taken on or prior to
the Closing Date in connection with the issuance of the Shares and the
consummation of the transactions contemplated hereby and all documents and
papers relating thereto shall be satisfactory in form and substance to Purchaser
and its counsel.
Section 2.2 Representations True. All representations and warranties of the
Company contained herein shall be true and correct in all respects on and as of
the Closing Date with the same effect as though such representations and
warranties had been made on and as of the Closing Date; the Company shall have
performed in all respects all agreements on its part required to be performed
under this Agreement on or prior to the CLOSING date.
Section 2.3 The Purchase by Purchaser Permitted by Applicable Laws. The
sale by the Company and the payment for the Shares to be purchased by Purchaser
(i) shall not be prohibited by any applicable law or governmental regulation,
release, interpretation or opinion, (ii) shall not subject Purchaser to any
penalty under or pursuant to any applicable law or governmental regulation, and
(iii) shall be permitted by the laws and regulations of the jurisdictions to
which Purchaser is subject.
Section 2.4 Executives and Delivery of Documents. Purchaser shall have
received the following, duly executed and delivered and in form and substances
satisfactory to Purchaser and its counsel: certificates representing the Shares
and such other documents and information as Purchaser may reasonably request in
connection herewith.
Section 3 COVENANTS. The Company covenants and agrees that on and after the
date hereof:
Section 3.1 Corporate Existence. The Company will do or cause to be done
3
<PAGE>
all things necessary to preserve and keep in full force and effect the Company's
corporate existence in accordance with the rights (charter and statutory),
licenses and franchises of the Company; provided, however, that the foregoing
shall not restrict any merger involving the Company, whether or not it is the
surviving corporation.
Section 3.2 Taxes. The Company shall pay prior to delinquency all taxes,
assessments, and governmental levies that may be imposed upon the Company,
except as contested in good faith and by appropriate proceedings.
Section 3.3 Compliance with laws. The Company shall comply in all respects
with all applicable laws, statutes and regulations of any Governmental Person, a
violation of which would have a material adverse effect on the financial
condition, operations, business, profits, prospects or properties of the Company
or the validity or enforceability of this Agreement or any other documents or
agreements contemplated hereby or thereby or any of the transactions
contemplated hereby or thereby.
Section 3.4 Payment of Expenses. IN the event the transactions contemplated
by this Agreement are consummated, the Company shall promptly pay to Purchaser
all reasonable costs and out-of-pocket expenses of Purchaser, including without
limitation its reasonably attorneys' fees, incurred in connection with the
negotiation, preparation, execution and delivery of this Agreement and the
Shares, and defense or enforcement costs related thereto.
Section 3.5 Transfers. The Company shall refuse to register any transfer of
the Shares not made in accordance with the provisions of Regulation as (Rule 901
through 905, and Preliminary Notes), pursuant to registration under the
Securities Act, or pursuant to an available exemption from registration.
Section 4. TAXES.
The Company will pay all taxes (including interest and penalties), other
than taxes imposed on the income of Purchaser, which may be payable in respect
of the execution and delivery of this Agreement or of the execution and delivery
(but not the subsequent transfer) of any of the Shares or of any amendment of,
or waiver or consent under or with respect to, this Agreement or of any of the
Shares and will save Purchaser and all subsequent holders of the Shares harmless
against any loss or liability resulting from nonpayment or delay in payment of
any such tax.
Section 5 MISCELLANEOUS.
Section 5.1 Regulation S; Private Placement; Legends. Purchase acknowledges
and agrees that the shares have not been registered under the Securities Act and
may not be offered or sold in the United States or to or for the benefit of U.S.
Persons (as defined in Regulation S) unless the securities are registered under
the Securities Act, or an exemption from such registration requirements is
available. Each certificate representing any Shares shall bear a legend in
substantially the following form:
The securities represented by this certificate are subject to a Securities
Purchase Agreement dated as of January 23, 1999, a copy of which is on file at
the principal office of the Company and will be furnished to the holder on
request to the Secretary of the Company.
In addition, unless counsel to the Company shall have advised the Company
that such legend is no longer needed, each certificate representing the Shares
shall bear legends in substantially the following forms:
The securities presented by this certificate have not been registered
pursuant to the Securities Act of 1933, as amended (the "Act"), or any
statue securities law, and such securities may not be sold, transferred
or otherwise disposed of unless the same are registered and qualified
in accordance with the Act and any applicable state securities laws, or
in the opinion of counsel reasonably satisfactory to the Company such
registration and qualification are not required (including under
Regulation S) under the Act. Transfer of such securities is prohibited
except in accordance with the provisions of Regulation S under the Act
(Rule 901 through 905, and Preliminary Note), pursuant to registration
under the Act, or pursuant to an available exemption from registration;
4
<PAGE>
and hedging transactions involving such securities may not be conducted
unless in compliance with the Act.
Each distributor selling Securities to a distributor, a dealer (as defined
in section 2(a)(12) of the Securities Exchange Act of 1934, as amended) or a
person receiving a selling concession, fee or other remuneration, prior to one
year after the consummation of the transactions contemplated by this Agreement,
shall send a confirmation or other notice to the purchaser of the Securities
that the purchaser is subject to the same restrictions on offers and sales that
apply to a distributor under Regulation S.
Section 5.2 Indemnification. The Company agrees to indemnify, defend and
hold harmless Purchaser and its successors, assigns, heirs, subsidiaries,
affiliates and all of the officers, directors, employees, partners and agents
(including attorneys and accountants) of each of the aforementioned persons or
entities, and each of them, from and against any and all losses, claims,
damages, liabilities, expenses, demands, causes of action, suits, debts,
obligations, rights, promises, acts, agreements and damages of any kind or
nature whatsoever, whether at law or in equity, whether known or unknown,
foreseen or unforeseen, heretofore or hereafter arising out of, relating to,
connected with or incidental to the failure of any representation or warranty
made by the Company or in any other documents or agreements contemplated hereby
or the failure of the Company to comply in all material respects with the
covenants contained in this Agreement or in any other documents or agreements
contemplated hereby.
Section 5.3 Reliance on and Survival of Representations. All
representations, warranties, covenants and agreements of the Company herein
shall be deemed to be material and to have been relied upon by Purchaser and
shall survive the execution and delivery of this Agreement and of the
Securities.
Section 5.4 Successors and Assigns. This Agreement shall bind and inure to
the benefit of and be enforceable by the Company, Purchaser and each of their
respective successors and assigns. Purchaser shall be permitted to transfer the
Securities in accordance with their terms and the terms of this Agreement and in
accordance with applicable restrictions under applicable federal and state
securities laws.
Section 5.5 Notices. All notices and other communications provided for in
this Agreement shall be in writing and delivered by registered or certified
mail, postage prepaid, or delivered by overnight courier (for next business day
delivery) or telecopied, addressed as set forth on the signature page hereof, or
at such other address as any of the parties hereto may hereafter designate by
notice to the other parties given in accordance with this Section. Any such
notice or communication shall be deemed to have been duly given on the fifth day
after being so mailed, the next business day after delivery by overnight
courier, when received when transmitted by telecopy with confirmation of
transmission or upon receipt when delivered personally.
Section 5.6 Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument. Signatures may be
exchanged by telecopy, with original signatures to follow. Each of the parties
hereto agrees that it will be bound by its own telecopied signature and that it
accepts the telecopied signatures of the other parties to this Agreement. The
original signature pages shall be forwarded to the Company or its counsel and
the Company or its counsel will provide all of the parties hereto with a copy of
the entire Agreement.
Section 5.7 Amendments. This Agreement may only be amended by a writing
duly executed by the parties hereto.
Section 5.8 Severability. If any term or provision of this Agreement or any
other document executed in connection herewith shall be determined to be illegal
or unenforceable, all other terms and provisions hereof and thereof shall
nevertheless remain effective and shall be enforced to the fullest extent
permitted by applicable law.
Section 5.9 Governing Law; Submission to Process. EXCEPT TO THE EXTENT THAT
THE LAW OF ANOTHER JURISDICTION IS EXPRESSLY SELECTED IN A DOCUMENT, THIS
AGREEMENT AND ALL AMENDMENTS, SUPPLEMENTS, WAIVERS AND CONSENTS RELATING HERETO
5
<PAGE>
OR THERETO SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF CALIFORNIA WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAW. EACH PARTY
HEREBY IRREVOCABLY SUBMITS ITSELF TO THE NON-EXCLUSIVE JURISDICTION OF THE STATE
AND FEDERAL COURTS SITTING IN THE STATE OF CALIFORNIA AND AGREES AND CONSENTS
THAT SERVICE OF PROCESS MAY BE MADE UPON IT IN ANY LEGAL PROCEEDINGS RELATING
HERETO BY ANY MEANS ALLOWED UNDER CALIFORNIA OR FEDERAL LAW. EACH PARTY
IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY
OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY SUCH
PROCEEDING BROUGHT IN SUCH COURT AND ANY CLAIM THAT ANY SUCH PROCEEDING BROUGHT
IN SUCH A COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM. EACH PARTY SHALL
APPOINT AN AGENT FOR SERVICE OF PROCESS IN CALIFORNIA AND SHALL NOTIFY EACH
OTHER PARTY OF ANY FUTURE CHANGE THEREIN.
Section 5.10 Entire Agreement. This Agreement contains the entire Agreement
of the parties hereto with respect to the transactions contemplated hereby and
supersedes all previous oral and written, and all previous contemporaneous oral
negotiations, commitments and understandings.
Section 5.11 Further Assurances. Each party agrees promptly to execute and
deliver such documents and to take such other acts as are reasonably necessary
to effectuate the purposes of this Agreement.
Section 5.12 Headings. The headings contained herein are for reference
purposes only and shall not affect in any way the meaning or interpretation of
this Agreement.
Section 5.13 Waiver of Jury Trial. EACH PARTY HEREBY AGREES TO WAIVE ITS
RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR
ARISING OUT OF THIS AGREEMENT, THE SECURITIES OR ANY OTHER AGREEMENTS RELATING
TO THE SECURITIES OR ANY DEALINGS BETWEEN THEM RELATING TO THE SUBJECT MATTER OF
THIS TRANSACTION. NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, THIS WAIVER
IS IRREVOCABLE, MEANING THAT IT MAY NOT BE MODIFIED EITHER ORALLY OR IN WRITING,
AND THE WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS
OR MODIFICATIONS TO THIS AGREEMENT, THE SECURITIES OR ANY OTHER DOCUMENTS OR
AGREEMENTS RELATING TO THE SECURITIES.
[Signature Page Follows]
6
<PAGE>
IN WITNESS WHEREOF, the parties hereto execute this Agreement as of the
date first set forth above.
PURCHASER:
[------------------------------]
By: ___________________________
Address for Notices:
THE COMPANY:
GENESISINTERMEDIA.COM, INC.
By: __________________________
Ramy El-Batrawi
President
Address for Notices:
GenesisIntermedia.com, Inc.
13063 Ventura Blvd.
Studio City, CA 91604
Attn: Ramy El-Batrawi
Telephone: (818) 464-7270
Facsimile: (818) 464-7398
With a copy of any notice to:
Nida & Maloney, P.C.
800 Anacapa Street
Santa Barbara, CA 93101
Attn: Theodore R. Maloney
Telephone: (805) 568-1151
Facsimile: (805) 568-1955
<PAGE>
SCHEDULE OF OMITTED SECURITIES PURCHASE AGREEMENTS
Securities Purchase Agreement by and between Codicom Technologies, Ltd. and
Registrant dated January 22, 1999.
Securities Purchase Agreement by and between Denmore Investments, Ltd. and
Registrant dated January 23, 1999.
