May 22, 2000
eConnect
Thomas S. Hughes
Chairman and CEO
2500 Via Cabrillo Marina, Suite 112
San Pedro, CA 90731
Re: Letter of Intent With Respect to Proposed Purchase of Shares
of National Data Funding Corporation.
Dear Mr. Hughes:
This will confirm our understanding that eConnect (Buyer) is
prepared to purchase all outstanding shares of National Data
Funding Corporation (NFDC) from the current shareholders
(Seller). The purpose of this letter of intent is to summarize
the basic terms and conditions upon which Buyer will commit to a
binding agreement.
1. Assets. Buyer will purchase from Sellers all of the shares
of NDFC held by the Sellers.
2. Purchase Price. Buyer shall pay to Sellers tem million
dollars ($10,000,000.00) and tem million (10,000,000) shares of
eConnect, Section 144 stock, the total of both money and shares
being the "Purchase Price", in consideration for all classes of
Seller's authorized, issued and unissued shares of stock.
3. Allocation of Purchase Price. The Purchase Price (as defined
in Paragraph 2, above) shall be allocated to NDFC's shareholders
of record as of the Day of Closing ("Day of Closing" means the
date forty-five business (45) days following the signing of this
"Letter of Intent", or the next business day, if that date is a
non-business day) in an amount equal to their respective equity
interest in NDFC. (Example: Shareholder of record on Day of
Closing owns 2% of Seller. That shareholders will receive 2% of
the Purchase Price as defined in Paragraph 2 above).
4. Terms of Payment. The purchase price shall be paid at the
Closing in the following manner:
(a) Deliver of a certified, cashier's or other check acceptable
to Sellers in the amount of $10,000,000.00;
(b) Delivery of ten million (10,000,000) Section 144
shares of eConnect stock. "Delivery" means to have those said
shares transferred into the name of the Seller on the Day of
Closing, or the business day immediately following said date,
if the Day of Closing is a non-business day.
5. Title. Title to the shares shall be conveyed free and clear
of all encumbrances.
6. Due Diligence Period. On execution of this Letter of Intent
by Buyer, Buyer and Sellers shall both have a period of forty-
five business (45) days (the "Due Diligence Period")
respectively. At the commencement of the Due Diligence Period,
the parties shall provide the other and their agents,
contractors, consultants or advisors ("Agents") with reasonable
access to all of the books and records of the businesses. If
Buyer of Sellers determine that the Assets and Liabilities are
not satisfactory and as expected, each party shall have the
right, at their election, to terminate the purchase agreement by
written notice to the other given on or prior to the expiration
of the Due Diligence Period. In the event of such a termination,
neither Sellers nor Buyer shall have further obligations under
the purchase agreement except as provided in Paragraph 17 below.
7. Representations and Warranties. The documentation relating
to the purchase of the Shares by Buyer shall contain customary
representations and warranties of Sellers including by not
limited to the following:
(a) Sellers have good and marketable title to the
Shares.
(b) NDFC has good and marketable title to its business
assets including cash, name patents, intangibles, equipment,
inventory, fixtures, real property, leasehold improvements,
goods, receivables and instruments (referred to collectively in
this letter as the "Assets"), and all of the trademarks,
licenses, patents and copyrights necessary for the conduct of the
business.
(c) There is no pending litigation against NDFC except as will
be fully disclosed prior to close of escrow.
(d) NDFC has prepared and filed all federal, state and local
income, withholding, sales, real property, personal property and
other tax returns and has paid all required taxes.
(e) NDFC is in compliance with applicable laws the violation of
which would have a material adverse affect on NDFC's operations
or financial condition. Without limitation on the foregoing, NDFC
has complied with all laws regulating the discharge and disposal
of hazardous waste.
(f) NDFC's real property included in the Assets and all leased
premises are adequate for the present operations of NDFC and, as
presently used by NDFC, comply with all zoning and land use laws
and do not contain any hazardous wastes below the ground surface.
(g) NDFC is in compliance will all governmental licenses and
permits necessary for the operation of its business, the absence
of which or the noncompliance with which would have a material
adverse affect on the operations or financial condition of NDFC.
(h) NDFC maintains appropriate insurance policies relating to
the Assets and the conduct of its business.
(i) NDFC's financial statements as delivered to Buyer are true
and correct and there has been no adverse change in the business
of NDFC since the date of such financial statements to the
Closing.
(j) NDFC's products and all components thereof are of a
commercial quality and are sufficient to satisfy open orders
pending with NDFC.
(k) NDFC's reserve for warranty repair as shown on financial
statements is adequate to cover future warranty repairs.
(l) NDFC's accounts receivable arose from valid sales in the
ordinary course of business and, subject to a reasonable bad debt
allowance, are collectible without extraordinary efforts.
(m) At the Closing, NDFC shall deliver to Buyer and warrant as
true and correct a schedule of all bank accounts of NDFC.
(n) NDFC shall deliver to Buyer at the Closing and warrant as
true and correct a schedule of all NDFC's employees, their
present compensation levels, their scheduled salary review date,
their accrued and unpaid sick leave and vacation and all other
items of compensation due or to come due to NDFC's employees.
(o) None of the documents delivered to buyer (taken together)
by Sellers contain any untrue statement of a material fact or
omit a statement of any material fact necessary in order to make
the statements contained therein not misleading in light of the
circumstances under which the statements were made.
8. Buyer's Representations and Warranties. The documentation
relating to the purchase of the Shares by Buyer shall contain
customary representations and warranties of Buyer including, but
not limited to, Buyer's warranties of the following:
(a) Buyers has the power, necessary authorizations, and
capacity to enter the transaction.
(b) There is no pending litigation against Buyer except as will
be fully disclosed prior to close of escrow.
(c) Consummation of the sale by Buyer will not violate any
contract or agreement to which Buyer is a party.
(d) eConnect has prepared and filed all federal, state and
local income, withholding, sales, real property, personal
property and other tax returns and has paid all required taxes.
(e) eConnect is in compliance with applicable laws the
violation of which would have a material adverse affect on
eConnect's operations or financial condition. Without limitation
on the foregoing, eConnect has complied with all laws regulating the
discharge and disposal of hazardous waste.
(f) eConnect's real property included in its assets, if any,
and all leased premises are adequate for the present operations
of eConnect and, as presently used by eConnect, comply with all
zoning and land use laws and do not contain any hazardous wastes
below the ground surface.
(g) eConnect is in compliance with all governmental license and
permits necessary for the operation of its business, the absence
of which or the noncompliance with which would have a material
adverse affect on the operations or financial condition of
eConnect.
(h) eConnect maintains appropriate insurance policies relating
to its assets and the conduct of its business.
(i) eConnect's financial statements as delivered to Sellers are
true and correct and there has been no adverse change in the
business of eConnect since the date of such financial statements
to the Closing.
(j) At close of escrow eConnect will be in compliance with all
Securities and Exchange Commission filing requirements.
(k) eConnect's accounts receivable arose from valid sales in
the ordinary course of business and, subject to a reasonable bad
debt allowance, are collectible without extraordinary efforts.
(l) None of the documents delivered to Sellers (taken together)
by Buyer contain any untrue statement of a material fact or omit
a statement of any material fact necessary in order to make the
statements contained therein not misleading in light of the
circumstances under which the statements were made.
9. Closing Date. The Closing Date shall occur forty five
business (45) days form the execution by Buyer of this Letter of
Intent. In the event the Closing Date has not occurred by
September 1, 2000, Sellers shall have the right to terminate the
purchase agreement.
10. Conduct of Business Until Closing. Prior to close of escrow,
NDFC shall not authorize or issue any more classes or shares of
stock, or any other equity or debt instrument, nor declare any
stock splits or special dividend. Further, NDFC agrees not to
grant any new stock options, increase any company benefit, or
increase the salaries or hourly wages of any employee or
contractor of NDFC. Until the Closing, NDFC will continue to
conduct the business and maintain business relationships in the
ordinary and usual course of business. During that period,
dispose of the Assets except in the regular and ordinary course
of business. During that period, NDFC also shall not incur
additional long term leases or other contracts, or pay any
special bonuses or compensation to employees. Until the Closing,
all risk of loss, damage or destruction of the Assets shall be
borne by NDFC and Sellers.
11. Access to Information . During the Due Diligence Period,
NDFC shall allow Buyer and Buyer's agents free access to NDFC's
files, books and offices, including any and all information
relating to taxes, commitments, contracts, leases, licenses, and
personal property and NDFC's financial condition. Buyer will
keep all such information in confidence, and in the event the
sale of the Shares is not consummated shall return all copies of
that information to NDFC immediately on demand. During the Due
Diligence Period, eConnect shall allow Sellers and Sellers'
agents free access to eConnect's files, books and offices,
including any and all eConnect's financial condition. Sellers
will keep all such information in confidence, and in the event
the sale of shares is not consummated, shall return all copies of
that information to Buyer immediately on demand.
12. Purchase Agreement. The obligations of Sellers to sell and
of Buyer to buy the Shares are contingent upon the execution of a
purchase agreement consistent with this Letter of Intent and
otherwise in a form mutually acceptable to both parties. The
purchase agreement shall be executed by both parties as
expeditiously as possible after Buyer returns to Sellers a fully
executed copy of this Letter of Intent, but in no event later
than August 1, 2000.
13. Breach of Warranties. Sellers shall indemnify Buyer against
any loss, cost or liability incurred by Buyer as a result of the
breach of any representation or warranty by Sellers contained in
the purchase documentation. Buyer shall indemnify Sellers against
any loss, cost or liability incurred by Sellers as a result of
the breach of any representation or warranty by Buyer contained
in the purchase documentation.
14. Indemnities. Sellers shall indemnify and hold Buyer and the
property of Buyer, including the Shares purchased by Buyer, free
and harmless from any and all claims and losses arising from
Sellers' operation of its business before the sale of the Shares
which claims and losses are not disclose to Buyer.
Buyer shall indemnify and hold Sellers and the property of
Sellers, including the purchase price, free and harmless from
claims and losses arising from the operation of eConnect before
or after the sale of the Shares, or of NDFC after the sale of the
Shares.
15. Expenses. Buyer and Sellers shall each bear all of
their expenses, including attorneys' fees, in connection with the
negotiation of the documentation of the sale of Shares by Sellers
to Buyer, except that all costs of preparing this Letter of
Intent and the final acquisition documents, shall be paid by
Buyer, except to the extent Sellers' attorneys prepare such
documents. Any party engaging a broker or finder shall be solely
responsible for that broker's or finder's fee.
16. Negotiation Stand-Still. For a period of 45 calendar days
commencing with the date of execution of this letter of intent,
Sellers agree that Sellers will not enter a binding agreement
with any other party relating to the sale of the Shares. For a
period of 30 calendar days commencing with the date of execution
of this letter of intent, Sellers agree that Sellers will not
enter negotiations or discussions with any other party concerning
the sales of the Shares.
17. Non-refundable Deposit. Immediately upon execution by Buyer
of this letter of intent, Buyer shall provide to Sellers, a
$250,000.00 check for deposit into an escrow account. This
deposit shall be non-refundable, and shall be the property of
Sellers, should the sales of the Shares as provided herein not be
consummated for any reason except for the breach by Sellers of
any obligation contained herein or Sellers' voluntary election
not to consummate the sale. Should the transaction be closed as
provided herein, said $250,000.00 deposit will be applied to the
purchase price. Interest on the funds in escrow are payable to
the Buyer.
18. Operating Capital Contribution. In addition to the purchase
price to be paid by Buyer, Buyer will agree to provide operating
capital to NDFC in the amount of $1,000,000.00. Additionally, it
will transfer 1,000,000 shares of Section 144 stock of eConnect
to NDFC. When negotiable, the stock may be sold and utilized for
operating capital by NDFC, at NDFC's discretion. Said capital
contributions of cash and stock will occur at close of escrow.
19. Operation NDFC After Close of Escrow. Parties agree that it
is the intent of Buyer to enter into an employment contract with
R. Scott Hatfield, Executive Vice President. This contract shall
be for a period of not less than two years and shall call for
Hatfield to be president and chief executive officer of NDFC
after close of escrow, with reasonable salary and benefits not
less than those received by the current President of NDFC. Said
agreement shall also call for NDFC to operate under the authority
of Hatfield, without interference from eConnect.
20. Post Purchase. Buyer agrees that it is the intent, and in
the best interest of its shareholders, to "spin off" NDFC as a
separate publically traded corporation within one year after
close of escrow. Buyer agrees that shares in the publically
traded NDFC entity shall be issued as follows:
25% retained eConnect;
25% to R. Scott Hatfield;
20% to Sellers individually, on the basis of one share for
every five shares they each currently hold in NDFC;
10% to the treasury of NDFC;
20% to a NDFC employee stock incentive plan to be formed by NDFC.
21. Failure to Accomplish Spin-Off. Should Buyer, for any
reason, fail to obtain permission for NDFC to be a publically
traded company and "spin-off" the entity as described in the
previous paragraph, then, at the option of Sellers, Seller may
require eConnect to immediately transfer shares of NDFC as
follows:
25% retained eConnect;
25% to R. Scott Hatfield;
20% to Sellers individually, on the basis of one share for
every five shares they each currently hold in NDFC;
10% to the NDFC treasury;
20% to a NDFC employee stock incentive plan to be formed by NDFC.
22. Letter of Intent Non-binding Except as Otherwise Specified.
This letter of intent is intended as an outline of material
business terms to serve as a basis for the preparation of a
purchase agreement for review and approval by Buyer and Sellers.
Except as expressly stated in this Paragraph 22, this Letter of
Intent shall not constitute a formal binding agreement and
neither party is obligated to execute the purchase agreement. It
is intended that all legal rights or obligations between the
parties who are executing this Letter of Intent shall come into
existence only when a definitive agreement is executed and
delivered by those parties. Notwithstanding the preceding
provisions of this Paragraph 22, however, Paragraph 15, dealing
with attorney's fees and costs, Paragraph 16, restricting
Seller's right to enter into any agreements or conduct
negotiations with other parties, and Paragraph 17, providing for
a non-refundable deposit, shall be legally binding and
enforceable by the Parties.
If the terms of this letter of intent are acceptable to Sellers,
please execute the enclosed counterpart of this Letter of Intent,
without addition or deletion, and deliver same to Sellers on or
before June 2, 2000. Failure to deliver the fully executed
Letter of Intent by that date will render the provisions of this
Letter of Intent inoperative and of no further force and effect,
except as noted.
Very truly yours,
By: R. Scott Hatfield
R. Scott Hatfield
National Data Funding Corporation
EConnect
By: Thomas S. Hughes
Thomas S. Hughes
Chairman and CEO
