Register for free to join our community of investors and share your ideas. You will also get access to streaming quotes, interactive charts, trades, portfolio, live options flow and more tools.
Register for free to join our community of investors and share your ideas. You will also get access to streaming quotes, interactive charts, trades, portfolio, live options flow and more tools.
CIVIL ACTION FILED AGAINST AGORA, INC., PIRATE INVESTOR, LLC AND FRANK PORTER STANSBERRY FOR SELLING FALSE INSIDE INFORMATION
The Commission filed a complaint in the U.S. District Court for the District of Maryland, on April 10 seeking a permanent injunction against Agora, Inc., Pirate Investor, LLC and Frank Porter Stansberry. The complaint alleges that Agora, Pirate
and Stansberry violated the antifraud provisions of the federal securities laws. The complaint also seeks disgorgement and civil money penalties from all three defendants.
The complaint alleges that beginning May 14, 2002, Agora, Pirate and Stansberry disseminated unsolicited e-mails to subscribers of more than 15 Internet newsletters published by Agora. It is alleged that the e-mails, which were authored by Stansberry, offered to sell inside information concerning government approval, to be announced on May 22, 2002, of a contract which would yield billions in dollars in revenues for an unnamed company listed on the New York Stock Exchange and would enable investors to double their money on the announcement. It is further alleged that the unsolicited
e-mails stated the inside information had been obtained from a senior executive of the company and offered to sell a report, which named the company, for a payment of $1000.
The complaint alleges that approximately 1000 subscribers purchased copies of the report yielding revenues of approximately $1,000,000 for Agora. Finally, the complaint alleges that the so-called inside information was false in that even the company did not know when government approval of the contract would be received and that such approval was
ultimately not received on May 22 as promised in the unsolicited e-mails and the report.
It is alleged that by engaging in such conduct Agora, Pirate and Stansberry violated Section 10(b) of the Securities Exchange Act of 1934 and Rule 10b-5 thereunder. [SEC
v. Agora, Inc., Pirate Investor, LLC and Frank Porter Stansberry; Docket No. MJG 03 1042, USDC, D.Md.] (LR-18090)
Judge Dismisses Agora Suit Aiming To Prevent SEC Probe
By Carol S. Remond
Of DOW JONES NEWSWIRES
NEW YORK (Dow Jones)--A federal judge Monday dismissed a lawsuit filed by newsletter publisher Agora Inc. against the Securities and Exchange Commission in an attempt to prevent an SEC investigation.
The suit, filed in September in the U.S. District Court for the District of Maryland, claimed that an investigation opened by the SEC into Agora and one of its newsletters was in violation of the publisher's First Amendment rights.
Agora was asking the court to block the SEC from proceeding with its investigation.
The dismissal of Agora's suit comes just one week after the SEC filed a complaint against Agora, alleging the publisher and one of its subsidiaries called Pirate Investor LLC engaged in a scheme to defraud investors by disseminating false information in several Internet newsletters.
According to the SEC complaint, in May Agora and Pirate offered to sell false inside information about a USEC Inc. (USU) to newsletter subscribers for a fee of $1,000.
The SEC said that Agora made more than $1 million from the sale of false information to its newsletter subscribers. The SEC is seeking to have Agora and Pirate disgorge all ill-gotten gains and is looking to impose civil monetary penalties on the defendants.
Agora is a Baltimore newsletter group founded by James Dale Davidson. Although it doesn't name Davidson as a defendant, the SEC said in its complaint that Davidson, who is also editor of Agora's Vantage Point Investment Advisory, promoted companies in his newsletter, including GeneMax Corp. (GMXX) and Endovasc Ltd. (EVSC), without disclosing his relationships to the companies.
The SEC said in its complaint against Agora and Pirate that the
defendants'"conduct occurred in connection with the purchase and sale of securities of public companies."
The SEC also said that Agora continued to engage in "ongoing efforts to disseminate false information to the investing public" even after the publisher became aware of the commission's investigation.
By Carol S. Remond, Dow Jones Newswires; 201-938- 2074;
carol.remond@dowjones.com
(END) Dow Jones Newswires
23-04-03 1245GMT
Genemax Corp · NT 10-K · For 12/31/2
Filed On 4/1/3 · SEC File 0-27239 · Accession Number 1050502-3-285
As Of Filer Filing On/For/As Ds:Ps Subject Agent
4/01/03 Genemax Corp NT 10-K 4/01/03 1:3 1050502
--------------------------------------------------------------------------------
Notice of a Late Filing of Form 10-K or 10-KSB · Form 12b-25
Filing Table of Contents
Document/Exhibit Description Pages Bytes
1: NT 10-K Notice of a Late Filing of Form 10-K or 10-KSB 3 9K
NT 10-K 1st Page of 3 TOC Top Previous Next Bottom Just 1st
U.S. SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
FORM 12b-25
NOTIFICATION OF LATE FILING
(Check One):
[X] Form 10KSB [ ] Form 20F [ ] Form 11K [ ] Form 10QSB [ ] Form N-SAR
For Period Ended: December 31, 2002
[ ] Transition Report on Form 10-KSB
[ ] Transition Report on Form 20-F
[ ] Transition Report on Form 11-K
[ ] Transition Report on Form 10-QSB
[ ] Transition Report on Form N-SAR
For the Transition Period Ended:
Read Attached Instruction Sheet Before Preparing Form. Please Print or Type.
Nothing in this form shall be construed to imply that the Commission has
verified any information contained herein.
If the notification relates to a portion of the filing checked above, identify
the Item(s) to which the notification relates:
Not applicable.
--------------------------------------------------------------------------------
PART I - REGISTRANT INFORMATION
--------------------------------------------------------------------------------
Full Name of Registrant: GeneMax Corp.
Former Name if Applicable:
Address of Principal Executive
Office (Street and Number): 435 Martin Street, Suite 2000
City, State and Zip Code: Blaine, Washington 98230
--------------------------------------------------------------------------------
PART II - RULES 12b-25(b) and (c)
--------------------------------------------------------------------------------
If the subject report could not be filed without unreasonable effort or expense
and the registrant seeks relief pursuant to Rule 12b-25(b), the following should
be completed. (Check box if appropriate)
[ ] (a) The reasons described in reasonable detail in Part III of this form
could not be eliminated without unreasonable effort or expense;
[X] (b) The subject annual report, semi-annual report, transition report on
Form 10-KSB, Form 20-F, 11-K or Form N-SAR, or portion thereof will be
filed on or before the fifteenth calendar day following the prescribed
due date; or the subject quarterly report or transition report on Form
10-QSB, or portion thereof will be filed on or before the fifth
calendar day following the prescribed due date; and
[ ] (c) The accountant's statement or other exhibit required by Rule 12b-25(c)
has been attached if applicable.
NT 10-K 2nd Page of 3 TOC 1st Previous Next Bottom Just 2nd
-----------------------------------------------------------------------
PART III - NARRATIVE
-----------------------------------------------------------------------
State below in reasonable detail the reasons why the Form 10-KSB, 20-F, 11-K,
10-QSB or N-SAR or the transition report or portion thereof could not be filed
within the prescribed period.
GeneMax Corp. (formerly known as "Eduverse.com"), a Nevada corporation (the
"Company"), recently acquired GeneMax Pharmaceuticals, Inc. pursuant to a share
exchange agreement (the "Share Exchange Agreement"). The consummation of the
transaction has been reported in prior 8-K filings and in the Quarterly Report
on Form 10-QSB for nine- month period ended September 30, 2002.
The consummation of the Share Exchange Agreement has raised certain complex
accounting issues. Preparation of the Company's Annual Report on Form 10-KSB for
fiscal year ended December 31, 2002 includes for the first time audited
consolidated financial statements since consummation of the Share Exchange
Agreement. Management of the Company deems that additional time is necessary in
order for the Company to properly address such accounting issues in connection
with the acquisition of GeneMax Pharmaceuticals, Inc., to properly prepare its
financial statements and footnotes for fiscal year ended December 31, 2002, and
to ensure complete and thorough and accurate disclosure of all material facts in
the Annual Report. Management anticipates completion of the audited consolidated
financial statements and the filing of its Annual Report on Form 10-KSB by April
15, 2003.
--------------------------------------------------------------------------------
PART IV - OTHER INFORMATION
--------------------------------------------------------------------------------
(1) Name and telephone number of person to contact in regard to this
notification: Diane D. Dalmy 303.985.9324.
(2) Have all other period reports required under section 13 or 15(d) of the
Securities Exchange Act of 1934 or section 30 of the Investment Company Act
of 1940 during the preceding 12 months or for such shorter period that the
registrant was required to file such reports(s) been filed? If the answer
is no, identify report(s).
[X] Yes [ ] No.
(3) Is it anticipated that any significant change in results of operations from
the corresponding period for the last fiscal year will be reflected by the
earnings statements to be included in the subject report or portion
thereof?
[ ] Yes [X] No
If so: attach an explanation of the anticipated change, both narratively
and quantitatively, and, if appropriate, state the reasons why a reasonable
estimate of the results cannot be made.
--------------------------------------------------------------------------------
NT 10-K Last Page of 3 TOC 1st Previous Next Bottom Just 3rd
GENEMAX CORP.
--------------------------------
(Name of Registrant as Specified in Charter)
has caused this notification to be signed on its behalf by the undersigned
thereunto duly authorized.
Date: April 1, 2003 By: /s/ Ronald Handford
----------------------------
Ronald Handford, President and Chief
Executive Officer
INSTRUCTION: The form may be signed by an executive officer of the registrant or
by any other duly authorized representative. The name and title of the person
signing the form shall be typed or printed beneath the signature. If the
statement is signed on behalf of the registrant by an authorized representative
(other than an executive officer), evidence of the representative's authority to
sign on behalf of the registrant shall be filed with the form.
ATTENTION
Intentional misstatements or omissions of fact constitute Federal Criminal
Violations (See 18 U.S.C. 1001)
http://www.secinfo.com/d1Z1S9.28y.htm
Congratulations on GREAT April Fool's web site!
There are so many confilcting statements made by the ICI group it's obvious that they don't keep track of who wrote what and when.
The SEC filing clearly state Pierce's role in ICI. Is ICI claiming the the SEC filings are wrong? They filed them, and it's not a case of typo errors.
Instead of PR battles with Dow Jones, why don't they just file corrections to those SEC filings?
gump...I found this post on the RB GMXX board where you are very actively promoting the stock.
This post was in reference to a question to you about Strathclair Ventures. it appears you are also promoting this stock - where's your disclosure about your involvment in that?
By: gump90
27 Mar 2003, 10:46 PM EST Msg. 28089 of 28116
OT: You forgot ...
I said ALL publicity is GOOD publicity. Thank you for bringing that stock to everyone's attention. It's just starting to move now. Saves me buying Spam. LOL. Remember, it was you you brought it up here and Spammed it ... not me. THIS IS FABULOUSLY FUNNY !!!!
http://ragingbull.lycos.com/mboard/boards.cgi?board=GMXX&read=28089
gump - I found this on the RB GMXX thread where you are also very actively promoting the stock...did you mention this anywhere on this thread - can't seem to find anything. Please explain.
By: salemshex69
27 Mar 2003, 10:34 PM EST Msg. 28080 of 28084
(This msg. is a reply to 28079 by spagyrist.)
TSX Venture Exchange - Remain Halted - Strathclair Ventures Ltd. - SVL
VANCOUVER, Sept. 18 /CNW/ -
STRATHCLAIR VENTURES LTD. ("SVL")
BULLETIN TYPE: Remain Halted
BULLETIN DATE: September 18, 2002
Tier 2 Company
Further to the TSX Venture Exchange Bulletin dated September 10, 2002,
trading in the Company's securities will remain halted pending receipt and
review of acceptable documentation regarding the change of business and/or
Reverse Take-Over pursuant to Listings Policy 5.2.
http://www.canadanewswire.ca/releases/September2002/18/c2334.html
http://ragingbull.lycos.com/mboard/boards.cgi?board=GMXX&read=28080
Investor Communications International, Inc. Announces Further Corrections to Inaccurate Reporting Conducted by Steve Jones and Carol Remond
Monday March 17, 9:07 am ET
"Brent Pierce is neither a director nor officer of ICI."
Source: Investor Communications International, Inc., 17 Mar 2003
EXECUTED to be effective as of the 6th day of February, 2003
Date: February __, 2003 Investor Communications
International, Inc.
By: Brent Pierce, President
-------------------------------
http://www.secinfo.com/$/SEC/Page.asp?P=1050502-2-1084-1-28-166066
BLAINE, Wash., March 17 /PRNewswire/ -- Investor Communications International, Inc. ("ICI") announced that on March 14, 2003 Steven D. Jones and Carol S. Remond ("Steve&Carol") created another article that appeared in a Dow Jones news wire in the same erroneous vein as a previous inaccurate news wire by Steve&Carol of October 11, 2002 pertaining to ICI and GeneMax Corp. (OTC Bulletin Board: GMXX - News) that provide the reader with inaccurate and false facts and erroneous conclusions.
Although Steve&Carol seemed to stop writing defamatory and incorrect articles about ICI and GeneMax Corp. for a period of time after ICI made public that December 9, 2002 and October 11, 2002 news wires by Steve&Carol contained numerous unfactual statements, Steve&Carol have begun writing inaccurate reports that mislead the public. For those who may have forgotten, GeneMax Corp. and Investor Communications International, Inc. formed the subject of the news wire story dated October 11, 2002 by Steve&Carol. There were at least sixteen inaccurate facts or statements made in the October 11, 2002 news wire story by Steve&Carol. There were only 990 words in the entire October 11, 2002 Steve&Carol news wire. Corrections were brought to the attention of the lead author Steven D. Jones and counsel to Dow Jones with request for retraction. Retractions were not subsequently made.
Further information obtained by Steve&Carol pertaining to a lawsuit filed in the Superior Court of the State of Washington against a GeneMax shareholder, Garth Braun (the "Lawsuit"), has led to numerous erroneous statements by Steve&Carol. In fact, ICI would like to make clear that all conclusions made by Steve&Carol in their latest March 14, 2003 Dow Jones news wire pertaining to information they have received relating to the Lawsuit are false and untrue, proving once and for all that a little knowledge is a dangerous thing. Like the October 11, 2002 news wire by Steve&Carol that contained at least sixteen inaccurate facts or statements, it would be too onerous to address and disclose the breadth and effect of the numerous inaccuracies in the March 14, 2003 Dow Jones news wire, or correct the inaccurate and untrue conclusions made therein. As a result ICI provides clarification as follows:
-- All statements and conclusions made by Steve&Carol in the
March 14, 2003 Dow Jones news wire regarding the float of GeneMax
being larger than it was in October of last year or at any other
time stated in the article are false and untrue.
-- All statements and conclusions made by Steve&Carol in the
March 14, 2003 Dow Jones news wire regarding share options granted
to ICI in the capital of GeneMax Corp. and any sale thereto are
false and untrue.
-- Information provided to Dow Jones reporter last fall by Grant Atkins
of GeneMax Corp. is accurate and correct. That information has been
misquoted, misstated, taken out of context, or generally distorted
by Steve Jones for purposes other than providing true and accurate
reporting.
-- Brent Pierce is neither a director nor officer of ICI. Steve Jones
has been advised of such facts in writing, but chooses to distort
and misguide the public by making false statements to the contrary.
Grant Atkins of GeneMax Corp. stated, "When it comes to yellow journalism, Steven D. Jones and Carol S. Remond are likely to be involved. Companies are guided by SEC regulations and ever-increasing public governance. It is amazing that the media is guided by no governing body other than ethical constraints of journalistic professionalism. When authors lose that, they mislead the public. In the case of Remond and Jones, freedom of the press includes the freedom to mislead."
SAFE HARBOR STATEMENT
THIS NEWS RELEASE MAY INCLUDE FORWARD-LOOKING STATEMENTS WITHIN THE MEANING OF SECTION 27A OF THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED, AND SECTION 21E OF THE UNITED STATES SECURITIES AND EXCHANGE ACT OF 1934, AS AMENDED, WITH RESPECT TO ACHIEVING CORPORATE OBJECTIVES, DEVELOPING ADDITIONAL PROJECT INTERESTS, THE COMPANY'S ANALYSIS OF OPPORTUNITIES IN THE ACQUISITION AND DEVELOPMENT OF VARIOUS PROJECT INTERESTS AND CERTAIN OTHER MATTERS. THESE STATEMENTS ARE MADE UNDER THE "SAFE HARBOR" PROVISIONS OF THE UNITED STATES PRIVATE SECURITIES LITIGATION REFORM ACT OF 1995 AND INVOLVE RISKS AND UNCERTAINTIES WHICH COULD CAUSE ACTUAL RESULTS TO DIFFER MATERIALLY FROM THOSE IN THE FORWARD-LOOKING STATEMENTS CONTAINED HEREIN."
http://biz.yahoo.com/prnews/030317/sfm094_1.html
IN THE MONEY:Lawsuit Calls Into Question GeneMax Float
By Carol S. Remond and Steve D. Jones
14 March 2003
Dow Jones News
A Dow Jones Newswires Column
VANCOUVER, Wash. (Dow Jones)- When it comes to trading in GeneMax Corp.
(GMXX), it's all about supply and demand.
Pooling agreements and insider selling restrictions have tied up all but 3%
of GeneMax's 15.2 million outstanding shares. A switch to certificate-only
trading in July and lawsuits against selected brokerages used by short
sellers tightened trading even further.
Last fall, officials of the biotech company said only 265,000 shares were
free to trade. That number rose to 367,000 in December after an option
exercise.
But as it turns out, there may be more shares in GeneMax's float than the
company and its marketing firm Investor Communications International Inc.
have said.
A lawsuit filed recently in the Superior Court for the State of Washington
indicates that ICI sold at least 300,000 GeneMax options to a third party as
early as last June.
That contradicts statements made by GeneMax director Grant Atkins to Dow
Jones Newswires last fall. In an October interview, Atkins said that ICI had
not sold or excercised any of its options.
Atkins, who is an ICI consultant, confirmed that ICI held 1 million options
in GeneMax that were freely tradeable. He said that ICI had not sold,
exchanged or shorted any shares against the options. He repeated a claim he
had made in July that only 265,000 GeneMax shares were free to trade.
The Washington suit, filed by ICI and an offshore entity called Newport
Capital Corp., shows that GeneMax shareholder Garth Braun bought shares from
ICI in June. The suit then alleges Braun and companies he controls reneged
on an agreement not to sell those shares without the approval of ICI
officers. The suit doesn't make clear whether Braun purchased options or
shares from ICI.
While the suit doesn't specify many details of the transaction, it does make
clear that ICI was dealing in large blocks of GeneMax stock at a time when
ICI representatives were telling the public otherwise.
ICI's attorney Steven Childress wouldn't comment on details of the
transaction, the number of shares sold in the deal or statements by Atkins.
He said that the intent of the suit was to prevent Braun from selling any
shares.
"My understanding is that the defendants actually have the stock," Childress
said. "Whether it got to (the defendants) as options and they later
exercised them, or they received stock, I don't know. But the defendants
have stock in their possession."
Childress referred other questions about the suit to ICI representative
Marcus Johnson. Johnson refused to comment.
Braun also declined to comment.
ICI is a marketing company that led a recapitalization of GeneMax in early
2002. It brought GeneMax public on the Nasdaq Bulletin Board market through
a reverse merger into a Nevada software company called Eduverse. Both ICI
and GeneMax are headquartered at the same address in Blaine, Washington.
According to SEC filings, British Columbia resident Brent Pierce, who in
1993 was banned from serving as an officer or director of a public company
in British Columbia, is president of both ICI and Newport Capital. A
February 2001 filing by Vega Atlantic Corp. (VATL) identified Pierce, as the
president, secretary and director of Newport Capital. Meanwhile, a December
2002 document filed with the SEC by Petrogen Corp. (PTGC) identified Pierce
as president of ICI. Both Vega and Petrogen are represented by ICI.
Pierce declined to comment.
The suit alleges that Braun and two companies he controls, Seraph Capital AG
of Germany, and MultiMillion Investments Ltd. of Vancouver, B.C., have sold,
or are attempting to sell shares in violation of the agreement with ICI. The
suit seeks unspecified damages and asks the court for an injunction to
prevent the sale of Braun's shares.
The suit says that on June 3, ICI and Braun on behalf of his company Seraph,
entered into an agreement "regarding the sale of certain shares of GeneMax."
The suit also says they executed a "share purchase and pooling agreement"
covering two groups of 300,000 shares each of GeneMax. The suit doesn't
specify at what price the shares were sold. It also doesn't specify which
company controlled which group of shares, just that the groups contained
equal numbers of shares.
A third group of shares in the pooling agreement covered 77,500 shares,
including 34,000 shares paid to MultiMillion Investments in exchange for
unspecified services. Overall, the pooling agreement covered 677,500 shares
owned by both ICI and Newport Capital and Braun and his companies.
According to the suit, Braun notified ICI and Newport Capital in January
that Seraph and MultiMillion Investments "would no longer recognize" the
pooling agreement.
The suit asks for an injunction imposing a "stop transfer" order on any
stock transfer agent that might handle sale of shares for Braun or his
companies.
This is not the first time that Braun's name comes up in litigation
involving shares of GeneMax.
In September, Braun filed a lawsuit against Octagon Capital Corp., a Toronto
stock brokerage, because the brokerage firm was unable to deliver
certificates for 29,500 shares of GeneMax Braun had purchased. The purchases
were made between July 23 and Aug. 2. Octagon later delivered a total of
29,500 shares of GeneMax in certificated form to Braun.
Although the pooling agreement between ICI and Braun predates Braun's
purchase of those 29,500 shares of GeneMax, the Washington state lawsuit
alleges that Braun is not free to trade those shares without ICI approval.
By Carol S. Remond, 201 938-2074; and Steven D. Jones, 360 253-5400;
Dow Jones Newswires
Are you still clutching at straws? Bafflegab is not going to change what it says in the 8-K.
LOL...the 8-K does not bode well for ordinary shareholders.
Exhibit 99.1
FOR IMMEDIATE RELEASE
E.DIGITAL CORPORATION CONVERTS
SECURED NOTES TO SERIES D PREFERRED STOCK
(SAN DIEGO, CA - DECEMBER 30, 2002) - E.DIGITAL CORPORATION (OTC: EDIG) today announced that investors have converted an aggregate of $2.05 million of promissory notes to equity in the form of Series D Preferred Stock. The Company has also restructured the payment terms on its $750,000 term note.
Chief Financial Officer Ran Furman stated, "We have come to an agreement that management believes is favorable to the Company. Under this agreement, all of the $1 million of 12% Secured Promissory Notes due December 31, 2002 and all of the $1.05 million of 24% Promissory Notes have been converted into Series D Preferred Stock. The 12% Series D Preferred Stock matures June 30, 2007, is non redeemable and is convertible into shares of Common Stock at $0.20, subject to certain adjustments."
Under the renegotiated terms of the $750,000 Promissory Note, the company reduced its payments to 15% interest only through December 31, 2003. Payments consisting of $50,000 per month, including principal and interest, will begin in January 2004 and continue until May 2005 when the Note is expected to be paid in full.
Mr. Furman added "These important financial changes remove our December 31, 2002 debt obligation, significantly reduce our debt payment obligations in 2003 and improve our balance sheet going into a new calendar year. We are pleased by the confidence shown in e.Digital by this equity investment by investors."
Full details of these financial events are being filed today with the Securities
and Exchange Commission under Form 8-K Current Report.
ABOUT E.DIGITAL
e.Digital Corporation designs, licenses, brands, manufactures, and sells digital
audio products and technologies. The Company's trademarked digital audio players
include the MXP 100, Tre portable digital jukebox line, Silhouette
ultra-slim MP3-CD player, and Odyssey line of flash- and hard disk drive-based
players. e.Digital launched WeDigMusic.com to complement its digital audio
players by providing consumers with a one-stop-shop for streaming and
downloading music from thousands of artists on the Web. The Company also offers
an engineering partnership for the world's leading electronics companies to link
portable digital devices to PCs and the Internet. e.Digital develops and markets
to consumer electronics manufacturers complete end-to-end solutions for delivery
and management of open and secure digital media with a focus on music, voice and
video players/recorders, and automotive infotainment and telematics systems.
Other applications for e.Digital's technology include portable digital music
players and voice recorders; desktop, laptop, and handheld computers; PC
peripherals; cellular phone peripherals; e-books; video games; digital cameras;
and digital video recorders. Engineering services range from the licensing of
e.Digital's patented MicroOS file management system to custom software and
hardware development, industrial design, and manufacturing services. For more
information on the Company, please visit www.edig.com. To shop at the e.Digital
------------
online store, please visit www.edigital-store.com.
-MORE-
# # #
SAFE HARBOR STATEMENT UNDER THE PRIVATE SECURITIES LITIGATION REFORM OF 1995: All statements made in this document, other than statements of historical fact, are forward-looking statements. Forward-looking statements are based on the then-current expectations, beliefs, assumptions, estimates and forecasts about the businesses of the Company and the industries and markets in which the company operates. Those statements are not guarantees of future performance and involve risks, uncertainties and assumptions that will be difficult to predict. Therefore, actual outcomes and results may differ materially from what is expressed or implied by those forward-looking statements. Factors that may affect the Company's businesses, financial condition and operating results include future products and results, technological shifts, potential technical difficulties that could delay new products and services, competition, pricing pressures, the uncertainty of market acceptance of new products and services by OEM's and end-user customers, effects of changes in the economy, consumer spending, the ability of the Company to maintain relationships with strategic partners and suppliers, the ability of the Company to timely and successfully develop, maintain and protect its technology and product and service offerings and execute operationally, the ability of the company to attract corporate financing and the ability of the Company to attract and retain qualified personnel. More information about potential factors that could affect the Company can be found in its most recent Form 10-K, Form 10-Q and other reports and statements filed by e.Digital with the Securities and Exchange Commission ("SEC"). e.Digital disclaims any intent or obligation to update those forward-looking statements, except as otherwise specifically stated by it.
(I) COMPLIANCE WITH OTHER INSTRUMENTS. The Company is not in violation or default of any term of its Certificate of Incorporation or Bylaws, or of any provision of any mortgage, indenture, contract, agreement, instrument or contract to which it is party or by which it is bound or of any judgment, decree, order, writ or, to its knowledge, any statute, rule or regulation applicable to the Company which would materially and adversely affect the business, assets, liabilities, financial condition or operations of the Company. The execution, delivery, and performance of and compliance with this Conversion Agreement and the issuance of the Series D Preferred Stock pursuant hereto and of the Conversion Shares, will not, with or without the passage of time or giving of notice, result in any such material violation, or be in conflict with or constitute a default under any such term, or result in the creation of any mortgage, pledge, lien, encumbrance or charge upon any of the properties or assets of the Company or the suspension, revocation, impairment, forfeiture or nonrenewal of any permit license, authorization or approval applicable to the Company, its business or operations or any of its assets or properties.
(J) LITIGATION. There is no action, suit, proceeding or investigation pending or to the Company's knowledge currently threatened in writing against the Company that questions the validity of this Conversion Agreement or the right of the Company to enter into any of such agreement, or to consummate the transactions contemplated hereby or thereby, or which might result, either individually or in the aggregate, in any material adverse change in the assets, condition or affairs of the Company, financially or otherwise, or any change in the current equity ownership of the Company, nor is the Company aware that there is any basis for the foregoing.
(K) EMPLOYEES. The Company has no collective bargaining agreements with any of its employees. There is no labor union organizing activity pending or, to the Company's knowledge, threatened with respect to the Company.
(L) COMPLIANCE WITH LAWS; PERMITS. To its knowledge, the Company is not in violation of any applicable statute, rule, regulation, order or restriction of any domestic or foreign government or any instrumentality or agency thereof in respect of the conduct of its business or the ownership of its properties which violation would materially and adversely affect the business, assets, liabilities, financial condition or operations of the Company. No governmental orders, permissions, consents, approvals or authorizations are required to be obtained and no registrations or declarations are required to be filed in connection with the execution and delivery of this Conversion Agreement and the issuance of the Series D Preferred Stock, except such as has been duly and validly obtained or filed, or with respect to any filings that must be made after the Closing, as will be filed in a timely manner. The Company has all franchises, permits, licenses and any similar authority necessary for the conduct of its business as now being conducted by it, the lack of which could materially and adversely affect the business, properties, prospects or financial condition of the Company and believes it can obtain, without undue burden or expense, any similar authority for the conduct of its business as planned to be conducted.
4. REPRESENTATIONS AND WARRANTIES OF NOTEHOLDER. With full knowledge that the Company and its officers, directors and controlling persons will be relying upon the following, among other things, in determining that a sale of Series D Preferred Stock to me will be exempt from the registration requirements of the Securities Act, and applicable state securities laws, I represent and warrant to the Company that:
(A) COMPANY INFORMATION. I have received and carefully reviewed the SEC Documents in their entirety provided to me by the Company. I understand that I and my adviser(s) have had a reasonable opportunity to ask questions of and receive answers from the Company, or a person or persons acting on its behalf, concerning my election to convert the principal amount of the Notes set forth above into the shares of Series D Preferred Stock as set forth hereinabove, and all such questions have been answered to my or their full satisfaction. I acknowledge and agree that I have been provided with, or offered complete access to, information concerning the Company, its business, financial condition and prospects, and the offering of the Series D Preferred Stock, equivalent to such information as would have been contained in a registration of the Series D Preferred Stock under the Securities Act. I have not been furnished with any other oral or written information concerning the Company or offering other than the SEC Documents or as described in this paragraph and I have relied solely on
3
the foregoing in connection with my decision to convert the principal amount of the Notes set forth above into the shares of Series D Preferred Stock. I acknowledge that no representations or warranties have been made to me by the Company or persons acting on behalf of the Company, other than the representations set forth in this Conversion Agreement and in the SEC Documents.
(B) PREFERRED STOCK; LIMITATIONS. I acknowledge that the shares of Series D Preferred Stock are subject to the limitations set forth in the Certificate of Designation of Preferences, Rights and Limitations filed with the Secretary of State for the State of Delaware on or about December 24, 2002 (the "CERTIFICATE OF DESIGNATION"). I also acknowledge that the shares of Series D Preferred Stock are convertible at my election and at the election of the Company in certain instances into fully paid and nonassessable shares of Common Stock, such shares issued on conversion being the "CONVERSION SHARES."
(C) RESTRICTED SECURITIES. I acknowledge that the Series D Preferred Stock and Conversion Shares (collectively, the "SECURITIES") have not been registered under the Securities Act, in reliance upon the exemption from registration provided by Rule 506 of Regulation D under the Securities Act, and under the securities or blue sky laws of any state or any rules or regulations promulgated thereunder, on the grounds that the offer and sale of such securities to me is a transaction not involving any public offering. The Series D Preferred Stock which I am acquiring hereby is, and the Conversion Shares on issuance thereof will be, "restricted securities," as that term is defined in Rule 144(a) under the Securities Act. I acknowledge and understand that the Securities are unregistered and must be held by me indefinitely, unless they are subsequently registered under the Securities Act or an exemption from such registration is available for their resale. I understand and agree that the prior written consent of the Company will be necessary for any transfer by me of the Securities, in whole or in part, unless the Securities have been duly registered under the Securities Act or the transfer is made in accordance with Rule 144 under the Securities Act.
(D) LEGEND. I understand and agree that the Series D Preferred Stock shall, unless and until removed in accordance with applicable law, contain a legend substantially in the following form, which I have read and understand:
"These securities have not been registered under the Securities Act of
1933, as amended (the "Act"), or under any state securities laws, and
are "restricted securities" as defined in Rule 144 under the Act.
These securities may not be offered, sold, transferred, pledged or
hypothecated in the absence of an effective registration statement for
such securities under the Act or an opinion of counsel satisfactory to
the Company that an exemption from such registration is available."
I understand that the certificate representing the Conversion Shares shall
contain a similar restrictive legend.
(E) REGISTRATION. I understand that only the Company can file a
registration statement under the Securities Act covering the Conversion Shares.
(F) NOTEHOLDER CAN BEAR ECONOMIC RISK. I represent and warrant to the Company in connection with my conversion of the Note and the acquisition of the Series D Preferred Stock that (i) I have adequate means of providing for my current needs and possible personal contingencies, and this investment will not necessitate any change in my standard of living, (ii) I have no present need for liquidity in this investment, (iii) I am able to bear the economic risks of investment in the Note for an indefinite period, and (iv) at this time could afford a complete loss of this investment.
(G) INVESTMENT HAS SUBSTANTIAL RISK. I recognize that an investment in the Series D Preferred Stock is speculative and involves a high degree of risk. I have considered among other risks those risks described in the SEC Documents.
(H) ACQUISITION FOR OWN ACCOUNT; ABLE TO PROTECT OWN INTEREST. The shares of Series D Preferred Stock are being acquired solely for my own account, for investment, and not for the account of any other person and not with any intention to make any distribution or public offering of such securities. I (and
4
if I am an entity, then the individual making this investment decision on my behalf), alone or together with my adviser(s), have such knowledge and experience in financial, tax and business matters as to enable me to utilize the information made available to me in order to evaluate the merits and risks of the prospective investment in the Series D Preferred Stock to make an informed investment decision with respect thereto.
(I) AUTHORITY; RESIDENCE. I, if a corporation, partnership, trust or other entity, have full power and authority to execute this Conversion Agreement, to make all representations, warranties and covenants set forth herein and to acquire and hold the Series D Preferred Stock, and have my principal office as set forth on the signature page hereof; and this entity has not been formed for the specific purpose of acquiring the Series D Preferred Stock. I, if an individual, am at least 21 years of age, and I reside at the place set forth on the signature page hereof.
(J) RELIANCE BY COMPANY. All information which I have provided to the Company is correct and complete as of the date set forth above and may be relied upon by the Company in determining the availability of an exemption from registration under federal and state securities laws in connection with the offering of securities as described herein and, if there should be any adverse change in such information prior to this Conversion Agreement being accepted, I will immediately provide the Company with such information.
(K) NO GENERAL SOLICITATION OR ADVERTISING. I have not been solicited by the Company or anyone on its behalf by any form of general solicitation or general advertising, including but not limited to (i) any advertisement, article, notice or other communication published in any newspaper, magazine or similar media or broadcast over television or radio, or made available over telephone lines by any information service, or (ii) any seminar or meeting whose attendees had been invited by any means of general solicitation or general advertising.
(L) INVESTMENT INTENT. The Series D Preferred Stock is being acquired for long-term investment only for my own account and not with a view to, or for sale in connection with, any distribution of the Series D Preferred Stock or any Conversion Shares. I do not have any present intention of distributing or selling any of the Series D Preferred Stock or any interest therein.
5. INDEMNIFICATION. I agree to indemnify and hold the Company, its officers, directors and every person who "CONTROLS" the Company within the meaning of Section 15 of the Securities Act ("CONTROLLING PERSONS") harmless from and against all damages, losses, costs and expenses (including reasonable attorneys' fees) which they or any one of them may incur by reason of my failure to fulfill or my breach of any of the terms or conditions of this Conversion Agreement, or by reason of any breach of or the falsity, inaccuracy, or failure of any representation or warranty made by me herein, made in any document provided by me to the Company in connection with this Conversion, or otherwise made by me orally or in writing to the Company.
6. REGISTRATION RIGHTS On or before June 30, 2003, the Company shall undertake to file a registration statement for the resale of the Conversion Shares with the Securities and Exchange Commission ("SEC") on Form S-3 or other appropriate form, and will utilize commercially reasonable efforts to make such registration statement effective as soon as possible thereafter. In the event that the foregoing registration statement is not declared effective, the Noteholder shall have the following additional registration rights with respect to the Conversion Shares:
(a) If, at any time from issuance to December 31, 2007 (the "EXERCISE PERIOD"), the Company proposes to prepare and file any registration statements covering its Common Stock (in either case, other than in connection with a merger or acquisition, pursuant to Form S-8 or any successor form, or pursuant to any other form or type of registration in which Registrable Securities (as defined below) cannot be appropriately included) (collectively, the "REGISTRATION STATEMENTS"), it will give written notice as provided herein at least thirty (30) days prior to the filing of each such Registration Statement to the then holders of the Series D Preferred Stock and/or Conversion Shares ("HOLDER") of its intention to do so. If the Holders of the Series D Preferred Stock and/or Conversion Shares notify the Company within twenty (20) days after receipt of any such notice of its or their desire to include the Conversion Shares (collectively, the "REGISTRABLE SECURITIES") in such proposed registration statement, the Company shall afford the Holders of the Series D Preferred Stock and/or Conversion Shares the opportunity to have any such Registrable Securities registered under such registration statement at the Company's sole cost and expense.
5
(b) Notwithstanding the provisions hereof, the Company shall have the right at any time after it shall have given written notice pursuant hereto (irrespective of whether a written request for inclusion of any such securities shall have been made) to elect not to file any such proposed registration statement, or to withdraw the same after the filing but prior to the effective date thereof.
(c) Notwithstanding any other provision of this Section 6, if the underwriter managing such registration notifies the Holders in writing that market or economic conditions limit the amount of securities which may reasonably be expected to be sold, the Holders of such Registrable Securities will be allowed to register their Registrable Securities pro rata based on the number of shares of Registrable Securities held by such Holders, respectively. No Registrable Securities excluded from the underwriting by reason of the underwriter's marketing limitation shall be included in such registration.
(d) Each Holder of Conversion Shares to be sold pursuant to any Registration Statement (each, a "DISTRIBUTING HOLDER") shall severally, and not jointly, indemnify and hold harmless the Company, its officers and directors, each underwriter and each person, if any, who controls the Company and such underwriter, against any loss, claim, damage, expense or liability, joint or several, as incurred, to which any of them may become subject under the Securities Act or any other statute or at common law, in so far as such loss, claim, damage, expense or liability (or actions in respect thereof) arises out of or is based upon any untrue statement or alleged untrue statement of any material fact contained in any such Registration Statement, any preliminary prospectus or final prospectus contained therein, or any amendment or supplement thereto, or any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, in each case to the extent, but only to the extent, that such untrue statement or alleged untrue statement or omission or alleged omission was made in reliance upon and in conformity with written information furnished to the Company by such Distributing Holder specifically for use therein. Such Distributing Holder shall reimburse the Company, such underwriter and each such officer, director or controlling person for any legal or other expenses reasonably incurred by any of them in connection with investigating or defending any such liability, as incurred. Notwithstanding the foregoing, such indemnity with respect to such preliminary prospectus or such final prospectus shall not inure to the benefit of the Company, its officers or directors, or such underwriter (or such controlling person of the Company or the underwriter) if the person asserting any such loss, claim, damage, expense or liability purchased the securities that are the subject thereof and did not receive a copy of the final prospectus (or the final prospectus as then amended, revised or supplemented) at or prior to the time such furnishing is required by the Securities Act in any case where any such untrue statement or omission of a material fact contained in the preliminary prospectus was corrected in the final prospectus (or, if contained in the final prospectus, was subsequently corrected by amendment, revision or supplement).
7. PUBLIC OFFERING LOCK-UP. In connection with any public registration of this Company's securities, the Holder (and any transferee of Holder) agrees, upon the request of the Company or the underwriter(s) managing such offering of the Company's securities, not to sell, make any short sale of, loan, grant any option for the purchase of, or otherwise dispose of the Conversion Shares without the prior written consent of the Company and such underwriter(s), as the case may be, for a period of time not to exceed on hundred eighty (180) days from the effective date of the registration. Upon request by the Company, Holder (and any transferee of Holder) agrees to enter into any further agreement in writing in a form reasonably satisfactory to the Company and/or such underwriter(s). The Company may impose stop-transfer instructions with respect to the securities subject to the foregoing restrictions until the end of said 180-day period. Any Conversion Shares shall bear an appropriate legend referencing this lock-up provision.
8. PROCEEDINGS. In the event that any cause of action, litigation, legal proceeding or arbitration proceeding arises out of or in any way results from this Conversion Agreement for or acquisition of Series D Preferred Stock or Conversion Shares (collectively, the "PROCEEDING") in which the undersigned is an adverse party to the Company or any director, officer or controlling person thereof, the undersigned agrees that:
6
(a) he will produce, upon the Company's request such statements, returns and purchase and sale information as are directly relevant and material to his investment sophistication, knowledge and experience in business and financial matters, ability to evaluate the risks and merits of investing in the Series D Preferred Stock and his status as an accredited investor; and that
(b) the party or parties not prevailing in such Proceeding shall pay all costs whatever, including reasonable attorney fees, incurred in the defense or prosecution of any such Proceeding by the party or parties therein prevailing, it being further agreed that the undersigned will pay all costs and reasonable attorney fees incurred by any officer, director or controlling person of the Company who or which prevails in the defense of any Proceeding initiated by the undersigned. The undersigned further admits and agrees that the documents and records to be produced pursuant to subparagraph (a) of this Section 8 will not pose an undue burden upon him nor unduly intrude upon his right of privacy and are necessary to the defense of the Proceeding by the Company and any directors, officers or controlling persons thereof involved in the Proceeding.
9. ACCREDITED INVESTOR STATUS. The following categories set forth below indicate my accreditation status. I have indicated my accreditation status by initialing all applicable blanks:
TO BE COMPLETED BY U.S. PERSONS ONLY
------------------------------------------
A AND B ARE APPLICABLE TO INDIVIDUALS (Please INITIAL applicable blanks):
A. ____ The undersigned is a natural person and has a net worth, either
alone or with the undersigned's spouse, of more than $1,000,000, and the
undersigned's investment does not exceed ten percent (10%) of his net worth or
joint net worth with the undersigned's spouse.
B. ____ The undersigned is a natural person and had income in excess of
$200,000 ($300,000 including income of spouse) during each of the previous two
years and reasonably expects to have income in excess of such amounts during the
current year, and the undersigned's investment does not exceed ten percent (10%)
of his net worth or joint net worth with the undersigned's spouse.
C THROUGH K ARE APPLICABLE TO NON-INDIVIDUALS (Please INITIAL applicable
blanks):
C. ____ The undersigned is a bank as defined in Section 3(a)(2) of the
Securities Act.
D. ____ The undersigned is a savings and loan association or other
institution as defined in Section 3(a)(5)(A) of the Securities Act, whether
acting in its individual or fiduciary capacity.
E. ____ The undersigned is an insurance company as defined in Section 2(13)
of the Securities Act.
F. ____ The undersigned is an investment company registered under the
Investment Company Act of 1940 or a business development company as defined in
Section 2(a)(48) of the Investment Company Act of 1940.
G. ____ The undersigned is a Small Business Investment Company licensed by
the U.S. Small Business Administration under Section 301(c) or (d) of the Small
Business Investment Act of 1958.
H. ____ The undersigned is an employee benefit plan within the meaning of
the Employee Retirement Income Security Act of 1974 ("ERISA") that either (i)
has its investment decisions made by a plan fiduciary, as defined by Section
3(21) of ERISA, which is either a bank, savings and loan association, insurance
company or registered investment adviser, or (ii) has total assets in excess of
$5,000,000, or (iii) is a self-directed plan, with investment decisions made
solely by persons that are accredited investors as described herein.
I. ____ The undersigned is a private business development company as defined
by Section 202(a)(22) of the Investment Advisors Act of 1940.
7
J. ____ The undersigned is an organization described in Section 501(c)(3) of
the Internal Revenue Code, not formed for the specific purpose of acquiring the
Stock, with total assets in excess of $5,000,000.
K. ____ The undersigned is an entity in which all of the equity owners are
accredited investors within categories A through J above.
I AM NOT AN ACCREDITED INVESTOR (none of the above apply):
______ I AM NOT an accredited investor.
NON U.S. PERSONS. Noteholder, if purchasing in reliance upon Regulation S:
(a) Is not a U.S. Person (as defined in Regulation S) and is not an
affiliate of the Company.
(b) Is located outside the United States, its territories and possessions.
(c) Will not, during the period commencing on the closing date of the conversion and ending on the day one year (1) year thereafter (the "RESTRICTED PERIOD"), offer or sell the Series D Preferred Stock or the Conversion Shares in the United States, its territories or possessions, or to a U.S. Person or for the account or benefit of a U.S. Person (other than distributors), other than in accordance with Rule 903 or 904 of Regulation S.
(d) Will, after the expiration of the Restricted Period, offer, sell, pledge or otherwise transfer the Series D Preferred Stock and/or the Conversion Shares only pursuant to registration under the Securities Act or an available exemption therefrom and, in any case, in accordance with applicable state and foreign securities laws.
(e) None of the Noteholder, its affiliates or any person acting on behalf of the Noteholder or any such affiliate has engaged, or will engage, in any Directed Selling Efforts with respect to the Series D Preferred Stock and/or the Conversion Shares or any distribution, as that term is used in the definition of Distributor in Rule 902 of Regulation S, with respect thereto.
(f) The transactions contemplated herein (a) have not been pre-arranged with a purchaser located in the United States, its territories or possessions, or who is a U.S. Person and (b) are not a part of a plan or scheme to evade the registration provisions of the Securities Act.
(g) The Noteholder is acquiring the Series D Preferred Stock and/or the Conversion Shares for its own account for the purpose of investment and not (a) with a view to, or for sale in connection with, any distribution thereof or (b) for the account or on behalf of any U.S. Person.
(h) The Noteholder is not a corporation that has been formed principally for
the purpose of investing in securities not registered under the Securities Act.
(i) Neither the Company nor any person acting on its behalf made to the Noteholder or any person acting on its behalf in the United States any statement conveying a purpose or intent to sell the Series D Preferred Stock and/or the Conversion Shares to the Noteholder. The person executing this Conversion Agreement on behalf of the Noteholder was outside the United States, its territories and possessions at the time of such execution.
(j) Neither the Noteholder, any affiliate of the Noteholder, nor any person acting on their behalf has undertaken or carried out any activity for the purpose of, or that could reasonably be expected to have the effect of, conditioning the market in the United States, its territories or possessions, for any of the Series D Preferred Stock and/or the Conversion Shares.
(k) If the Noteholder offers and sells the Series D Preferred Stock and/or
the Conversion Shares during the Restricted Period, then it will do so only; in
8
accordance with the provisions of Regulations S; pursuant to registration of the Stock under the Securities Act; or pursuant to an available exemption from the registration requirements of the Securities Act.
11. FINANCIAL SOPHISTICATION. I have prior investment experience, including investments in non-registered securities, or have employed the services of an investment advisor, attorney or accountant to read all of the documents furnished or made available by the Company and to evaluate the merits and risks of an investment in the Series D Preferred Stock on my behalf. I recognize the highly speculative nature of this investment, and that I must be able to bear and am able to bear the economic risk I hereby assume
12. CITY AND STATE INFORMATION. This Conversion Agreement for Series D
Preferred Stock was made by me solely in the:
CITY of (please print) _____________________________
STATE of (please print) _____________________________
13. TYPE OF OWNERSHIP (check one):
_____ Individual ____ Estate of a deceased person
_____ Joint Tenants WROS ____ Fiduciary of discretionary account
_____ Tenants in Common ____ Corporation (A.G., S.A.)
_____ Investment Club _____ Limited Partnership
_____ Community Property ____ Limited Liability Partnership (LLP)
_____ Trust ____ General Partnership
_____ Foundation (or Stiftung) ____ Limited Liability Company (or GmbH, SARL)
_____ Bank, Thrift, Sav. & Loan ____ Mutual Fund, Closed-End Fund, Unit Trust
_____ Other (describe:____________________________________________ )
14. ARBITRATION. Any controversy or claim relating to this Conversion Agreement or my investment in the Series D Preferred Stock shall be resolved before a panel of three arbitrators selected pursuant to and run in accordance with the rules then prevailing of the American Arbitration Association. Any such arbitration shall be held in San Diego, California. The prevailing party in the arbitration shall be entitled to an award of all expenses and reasonable attorneys' fees incurred in bringing or defending the arbitration.
15. BLUE SKY QUALIFICATION. Undersigned's right to purchase Shares under this Conversion Agreement are expressly conditioned upon the exemption from qualification of the offer and sale of the Shares from applicable Federal and State securities laws. The Company shall not be required to qualify this transaction under the securities laws of any jurisdiction and, should qualification be necessary, the Company shall be released from any and all obligations to maintain its offer, and may rescind any sale contracted, in the jurisdiction.
16. USE OF PRONOUNS. All pronouns and any variations thereof used herein shall be deemed to refer to the masculine, feminine, neuter, singular or plural as the identity of the person or persons referred to may require.
17. MISCELLANEOUS.
(a) I agree not to transfer or assign this Conversion Agreement, or any interest herein, and further agree that any transfer or assignment of the Series D Preferred Stock or Conversion Shares shall be made only in accordance with this Conversion Agreement and all applicable laws. I agree that this conversion is irrevocable and that I may not cancel, terminate or revoke this Conversion Agreement or any agreement made by me hereunder.
(b) Notwithstanding any of the representations, warranties, acknowledgments or agreements made herein by me, I do not thereby or in any other manner waive any rights granted to me under federal or state securities laws. I stipulate and agree, however, that the operation of this Conversion Agreement will not result in a waiver of such rights. All representations, warranties, covenants and undertakings made by me in this Conversion Agreement shall survive the Company's acceptance of this Conversion Agreement and the issuance and delivery of the Series D Preferred Stock and Conversion Shares.
9
(c) This Conversion Agreement constitutes the entire agreement among the parties hereto with respect to the subject matter hereof and, except as otherwise set forth in Section 17(i), may be amended only by a writing executed by both parties. This Conversion Agreement shall be enforced, governed and construed in all respects in accordance with the laws of the State of California applicable to contracts between residents of such state entered into and to be performed entirely within such state.
(d) I acknowledge that this Conversion Agreement does not constitute an offer to me to buy, an offer of sale, or solicitation of an offer to buy the Series D Preferred Stock, and that I shall have no right whatever to Convert the Notes and acquire any Series D Preferred Stock until this Conversion Agreement affirmatively is accepted by the Company. Neither the mere passage of time nor failure of the Company to reject this Conversion Agreement shall constitute acceptance hereof.
(e) Wherever the pronouns he, his or him appear in this Conversion Agreement, they shall include the feminine and neuter genders as well as the masculine and apply equally to individual and entity undersigneds, unless the context clearly requires otherwise.
(f) Notices between the parties shall be effective only if in writing and delivered: if to the Company, to the address on the first page hereof; and if to me, to the address on the signature page hereof; or to any subsequent address provided in writing by either party.
(g) This Conversion Agreement shall be binding upon and inure to the benefit of the parties and their respective heirs, administrators, executors, legal representatives, successors and permitted assigns. By executing this Conversion Agreement, I represent that I have carefully read it in its entirety.
(h) I understand and acknowledge that this conversion for Series D Preferred Stock shall be irrevocable until accepted or rejected by the Company (other than described in Paragraph 2), that it may not be canceled or revoked by me and that upon the Company's acceptance of this Conversion Agreement I will be legally bound to take the Series D Preferred Stock on the terms and conditions set forth herein.
(I) NOTEHOLDER ACKNOWLEDGES THAT THIS CONVERSION AGREEMENT IS ONE OF SEVERAL AGREEMENTS (COLLECTIVELY, THE "CONVERSION AGREEMENTS") BEING ENTERED INTO WITH OTHER NOTEHOLDERS (COLLECTIVELY TOGETHER WITH NOTEHOLDER, THE "NOTEHOLDERS") WITH RESPECT TO THE CONVERSION BY THE COMPANY OF EACH OF THE OUTSTANDING NOTES INTO SERIES D PREFERRED STOCK. ACCORDINGLY, NOTEHOLDER EXPRESSLY ACKNOWLEDGES THAT THE COMPANY HAS MADE CERTAIN AGREEMENTS AND COMMITMENTS HEREUNDER THAT ALSO WERE MADE BY THE COMPANY TO THE OTHER NOTEHOLDERS AND, IN CONNECTION THEREWITH, EXPRESSLY AGREES THAT IT WILL AMEND OR MODIFY THIS CONVERSION AGREEMENT AND/OR WAIVE THE OBLIGATIONS OF THE COMPANY HEREUNDER IN ACCORDANCE WITH (AND AS DETERMINED BY) THE WRITTEN CONSENT OF THE HOLDERS OF AT LEAST FIFTY-ONE PERCENT (51%) IN THE AGGREGATE PRINCIPAL AMOUNT OF THE NOTES OUTSTANDING AND THAT SUCH WRITTEN CONSENT SHALL CONSTITUTE A VALID, BINDING AND ENFORCEABLE AMENDMENT, MODIFICATION OR WAIVER HEREUNDER WHETHER OR NOT NOTEHOLDER ITSELF ACTUALLY CONSENTS THERETO.
********************
10
IN WITNESS WHEREOF, I the undersigned Noteholder, or a person duly authorized to act for me in the premises, has executed this Conversion Agreement by signature on the following Signature Page and initialed this and every preceding page hereof on the date first above written, in the City and State shown under Section 12 of this Conversion Agreement above.
*** Signature Page ***
INDIVIDUAL NOTEHOLDERS ONLY:
(Not Corporations, Partnerships, Trusts or other entities)
SIGNATURE _____________________________________________
Print Name of Noteholder _____________________________________________
Residence Address _________________________________________________________
___________________________________________________________________________
Fax No( )-
____________________________________________________________________
Home Telephone No. ( ) -
Work Telephone No.( _________________________________ )
Social Security Number ___________________________________________
(First listed person's number, if more than person is completing)
COMPANY OR OTHER ENTITY NOTEHOLDERS ONLY:
Print Name of Noteholder (Company/Entity Name) _____________________
AUTH. PERSON'S SIGNATURE ________________________________
Authorized Person's Name & Title (Print) _____________________________
Address of Principal Office ____________________________________________
Organized under laws of State or Country ____________________________
Telephone ( ) - Fax No. ( ) -
Federal Tax I.D. Number ________________________________
**************************************************
NOTEHOLDER: DO NOT WRITE BELOW THIS LINE
Accepted: __________ X _________________________
SIGNATURE
Rejected: _______ Name: ________________________
DATED, _________________ 2002__ Title: ___________________________
11
Exhibit 4.41
THE SECURITIES TO WHICH THIS AGREEMENT RELATES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR UNDER ANY STATE SECURITIES LAWS ("BLUE SKY LAWS"), AND MAY NOT BE OFFERED OR SOLD WITHOUT REGISTRATION UNDER THE SECURITIES ACT, AND AS REQUIRED BY BLUE SKY LAWS IN EFFECT AS TO SUCH TRANSFER, UNLESS AN EXEMPTION FROM SUCH REGISTRATION UNDER STATE AND FEDERAL LAW IS AVAILABLE.
C O N V E R S I O N A G R E E M E N T
E.DIGITAL CORPORATION
E.DIGITAL CORPORATION
13114 Evening Creek Drive South
San Diego, California 92128 ___________________, 2002
(Must be dated)
Attention:
Mr. Fred Falk, Chief Executive Officer $____________________________
(Amount of Notes Converted)
Gentlemen:
1. CONVERSION. I, the undersigned individual or entity ("NOTEHOLDER"), hereby irrevocably converts as of the above date the above stated dollar amount of __% Promissory Notes due __________, 200_ (individually a "NOTE" and collectively, the "NOTES") of E.DIGITAL CORPORATION, a Delaware corporation ("COMPANY") into ___________ shares of Series D Preferred Stock, $.001 par value (the "SERIES D PREFERRED STOCK"). This Conversion is made in accordance with and is subject to (i) the terms of this Conversion Agreement and (ii) the Company's Certificate of Incorporation and Bylaws, each as amended to date.
2. ACCEPTANCE OF CONVERSION. This Conversion Agreement does not constitute an offer by the Company to sell any shares of Series D Preferred Stock to me, nor a solicitation of any offer from me to buy any shares of Series D Preferred Stock, and shall be deemed accepted by the Company only when countersigned by an executive officer of the Company. The Company may reject this Conversion, in whole or in part, for any reason in its sole discretion. I understand the Company has agreed to accept or reject this Conversion within 15 days of receipt by the Company of this duly executed Conversion Agreement together with the original Note. After such 15 days, if not accepted by the Company, I may revoke this Conversion Agreement by notice in writing.
3. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company hereby represents and warrants to each Noteholder as of the date of this Conversion Agreement as follows:
(A) ORGANIZATION, GOOD STANDING AND QUALIFICATION. The Company is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware. The Company has all requisite corporate power and authority to own and operate its properties and assets, to execute and deliver this Conversion Agreement and to issue and sell the Securities, as hereinafter defined, and to carry out the provisions of this Conversion Agreement and to carry on its business as presently conducted and as presently proposed to be conducted. The Company is duly qualified and is authorized to do business and is in good standing as a foreign corporation in all jurisdictions in which the nature of its activities and of its properties (both owned and leased) makes such qualification necessary, except for those jurisdictions in which failure to do so would not have a material adverse effect on the Company or its business. 1
(B) SUBSIDIARIES. The Company operates through its wholly-owned subsidiary, e.Digital Corporation (a California corporation) and has no ownership in other companies. The Company is not a participant in any joint venture, partnership or similar arrangement.
(C) CAPITALIZATION; VOTING RIGHTS. The authorized capital stock of the Company consists of 200,000,000 shares of Common Stock, par value $.001 per share ("COMMON STOCK"), and 5,000,000 shares of preferred stock, par value $.001 per share ("PREFERRED STOCK"). As of December 23, 2002 the Company had no shares of preferred stock outstanding. As of December 23, 2002, the Company had 141,951,795 shares of Common Stock outstanding. An additional 7,098,663 shares of Common Stock are reserved for future issuance under the Company's stock option grants and pursuant to certain convertible securities, options and warrants. Accordingly, the Company has either outstanding or reserved an aggregate of 149,050,458 of the 200,000,000 authorized shares of Common Stock.
All issued and outstanding shares of the Company's Common Stock (a) have been duly authorized and validly issued, and (b) are fully paid and nonassessable. When issued in compliance with the provisions of this Conversion Agreement, the Series D Preferred Stock and the Conversion Shares, as hereinafter defined, will be validly issued, fully paid and nonassessable, and will be free of any liens or encumbrances; provided, however, that the Series D Preferred Stock and the Conversion Shares may be subject to restrictions on transfer under state and/or federal securities laws as set forth herein or as otherwise required by such laws at the time a transfer is proposed.
(D) RESERVATION OF SHARES. The Conversion Shares issuable upon conversion of the Series D Preferred Stock have been duly authorized and reserved for future issuance.
(E) AUTHORIZATION; BINDING OBLIGATIONS. All corporate action on the part of the Company, its officers, directors and stockholders necessary for the authorization of this Conversion Agreement, the performance of all obligations of the Company hereunder and thereunder at the Closing or Closings and the authorization, sale, issuance and delivery of the Securities pursuant hereto and the Conversion Shares on conversion of the Series D Preferred Stock has been taken or will be taken prior to the Closing. The Conversion Agreement when executed and delivered, will be valid and binding obligations of the Company enforceable in accordance with its terms, except (a) as limited by applicable bankruptcy, insolvency, reorganization, moratorium or other laws of general application affecting enforcement of creditors' rights; and (b) general principles of equity that restrict the availability of equitable remedies. The sale of the Series D Preferred Stock and the subsequent conversion thereof are not and will not be subject to any preemptive rights or rights of first refusal that have not been properly waived or complied with.
(F) SEC REPORTS AND FILINGS. The Company has delivered to Noteholder a complete and accurate copy (excluding copies of exhibits) of its Annual Report on Form 10-KSB for the fiscal year ended March 31, 2002, the latest Quarterly Report on Form 10-Q for the period ended September 30, 2002 and definitive proxy statement filed by the Company on September 22, 2002 (the "SEC DOCUMENTS"). The SEC Documents (i) complied with the requirements of the Securities Act of 1933, as amended (the "SECURITIES ACT") or the Securities Exchange Act of 1934, as amended (the "EXCHANGE ACT"), as the case may be, at and as of the times they were filed (or, if amended or superseded by a filing prior to the date of this Conversion Agreement, then on the date of such filing) in all material respects and (ii) did not at and as of the time they were filed (or, if amended or superseded by a filing prior to the date of this Conversion Agreement, then on the date of such filing) contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading.
(G) CHANGES. Since the date of the last of the SEC Documents, there has been no material adverse change in the business, operations or financial condition of the Company.
(H) TITLE TO PROPERTIES AND ASSETS; LIENS, ETC. The Company has good and marketable title to its properties and assets, including the properties and assets reflected in the most recent balance sheet included in the SEC Documents, and good title to its leasehold estates, in each case subject to no mortgage, pledge, lien, lease, encumbrance or charge, other than (a) those resulting from taxes which have not yet become delinquent, (b) minor liens and encumbrances which do not materially detract from the value of the property subject thereto or materially impair the operations of the Company, and (c) those that have otherwise arisen in the ordinary course of business. All facilities, machinery, equipment, fixtures, vehicles and other properties owned, leased or used by the Company are in good operating condition and repair and are reasonably fit and usable for the purposes for which they are being used.
Exhibit 4.40.1
FIRST AMENDMENT
TO
15% PROMISSORY NOTE
THIS FIRST AMENDMENT TO 15% PROMISSORY NOTE (this "AMENDMENT") is made and entered into as of December 23, 2002, by E.DIGITAL CORPORATION, a Delaware corporation (the "COMPANY") in favor of DAVRIC CORPORATION, or its registered assigns ("NOTEHOLDER").
R E C I T A L S
- - - - - - - -
A. The Company has previously executed and delivered to Noteholder that certain 15% Promissory Note dated September 11, 2002 (the "NOTE"), in the original principal amount of Seven Hundred Fifty Thousand Dollars ($750,000).
B. Noteholder and the Company desire to modify the Note as set forth
herein.
NOW, THEREFORE, for a valuable consideration, the receipt and adequacy of
which is hereby acknowledged, the parties hereto agree as follows:
1. REVISED PAYMENT SCHEDULE. Section 2 of the Note is hereby deleted and
--------------------------
replaced in its entirety as follows:
"All interest accruing during calendar year 2002 shall be due and
payable in one installment on December 31, 2002. Such interest, at the
election of the Company, may be paid in shares of Common Stock. All
interest accruing during calendar year 2003 shall be due and payable
in twelve (12) monthly installments, commencing January 31, 2003.
Commencing on January 31, 2004, and continuing on the same day of each
calendar month thereafter to and including April 30, 2005, the Company
shall pay principal and interest on this Note in sixteen (16) equal
monthly installments of Fifty Thousand Dollars ($50,000) each, with a
final payment of Thirty-Five Thousand Eight Hundred Dollars and
Ninety-Six Cents ($35,800.96) to be paid on May 31, 2005; provided,
however, that if any of the foregoing dates for any monthly
installment falls on a weekend or national holiday, the due date for
that installment shall be the following business day. Any payment
shall be deemed timely made if received by Noteholder within fifteen
(15) calendar days of the due date. All payments made on this Note
shall be applied first to accrued interest, and the balance of such
payment, if any, shall be applied to principal, and interest shall
thereupon cease upon the principal so credited."
2. DUE AUTHORIZATION. By execution of this Amendment, the Company hereby
------------------
confirms that the undersigned is duly authorized to execute and deliver this
Amendment and that all necessary corporate action approving this Amendment has
been duly taken.
3. EFFECTIVE AMENDMENT. Except as expressly modified, altered or
--------------------
supplemented herein, all of the provisions of the Note remain in full force and
---
effect; provided, however, that in the event of any conflict between the
-------- -------
provisions of the Note and the provisions of this Amendment, the provisions of
this Amendment shall control.
1
4. COUNTERPARTS. This Amendment may be executed in two or more counterparts each
------------
of which shall be deemed an original but all of which taken together shall
constitute but one and the same Amendment.
IN WITNESS WHEREOF, the parties hereto have duly executed this First
Amendment to 15% Promissory Note as of the date first above written.
"COMPANY"
E.DIGITAL CORPORATION, a Delaware corporation
By: ______________________________________
Title: ______________________________________
"NOTEHOLDER"
DAVRIC CORPORATION, a Nevada corporation
By: ______________________________________
Title: ______________________________________
EXHIBIT 3.6
CERTIFICATE OF DESIGNATION
OF PREFERENCES, RIGHTS AND LIMITATIONS
OF
SERIES D PREFERRED STOCK
OF
E.DIGITAL CORPORATION,
A DELAWARE CORPORATION
--------------------------------------------------------------------------------
PURSUANT TO SECTION 151 OF THE GENERAL
CORPORATION LAW OF THE STATE OF DELAWARE
--------------------------------------------------------------------------------
The undersigned, ALFRED H. FALK and RAN FURMAN, do hereby certify that:
1. They are the Chief Executive Officer and Secretary, respectively, of E.DIGITAL CORPORATION, a Delaware corporation (the "CORPORATION").
2. The Corporation is authorized to issue five million (5,000,000)
shares of preferred stock.
3. The following resolutions were duly adopted by the Board of
Directors:
WHEREAS, the Certificate of Incorporation of the Corporation provides for a class of its authorized stock known as preferred stock, comprised of five million (5,000,000) shares, $.001 par value, issuable from time to time in one or more series;
WHEREAS, the Board of Directors of the Corporation is authorized to fix the dividend rights, dividend rate, voting rights, conversion rights, rights and terms of redemption and liquidation preferences of any wholly unissued series of preferred stock and the number of shares constituting any series and the designation thereof, of any of them; and
WHEREAS, it is the desire of the Board of Directors of the Corporation, pursuant to its authority as aforesaid, to established a series of authorized preferred stock having a par value of $.001 per share, which series shall be designated as "Series D Preferred Stock" and to fix the rights, preferences, restrictions and other matters relating to the such series of preferred stock as follows:
NOW, THEREFORE, BE IT RESOLVED, that the Board of Directors does hereby established a series of authorized preferred stock having a par value of $.001 per share, which series shall consist of two hundred fifty thousand (250,000) shares and be designated as "Series D Preferred Stock," and does hereby fix and determine the rights, references, restrictions and other matters relating to such series of preferred stock as follows:
1. DESIGNATION. The series of preferred stock shall consist of
-----------
two hundred fifty thousand (250,000) shares designated and known as "Series D
Preferred Stock" (hereinafter referred to as "SERIES D PREFERRED STOCK"). The
Corporation may issue fractional shares of Series D Preferred Stock. The Series
D Preferred Stock shall have an initial issue price of Ten Dollars ($10.00) per
share (the "ORIGINAL ISSUE PRICE"). The date on which any shares of Series D
Preferred Stock are first issued is referred to herein as the "ORIGINAL ISSUE
DATE."
2. VOTING RIGHTS.
--------------
(A) VOTING. With respect to each matter submitted to a vote
------
of stockholders of the Corporation, each holder of Series D Preferred Stock
shall be entitled to cast that number of votes which is equivalent to the number
of shares of Series D Preferred Stock owned by such holder times fifty (50). If
a holder is entitled to cast a vote with respect to a fractional share of Common
Stock, such fractional share shall be rounded up to the next whole number. The Corporation shall not, without the affirmative vote or written consent of the holders of at least a majority of the outstanding Series D Preferred Stock (i) authorize or create any additional class or series of stock ranking prior to or on a parity with the Series D Preferred Stock as to dividends or the distribution of assets upon liquidation, or (ii) change any of the rights, privileges or preferences of the Series D Preferred Stock.
(B) CLASS VOTE. Except as otherwise required by law or by
-----------
this Section 2, holders of Common Stock and Series D Preferred Stock shall vote
as a single class on all matters submitted to the stockholders.
3. DIVIDENDS. The holders of Series D Preferred Stock shall be
---------
entitled to receive, out of any funds legally available therefor and the
Corporation shall pay, dividends at the fixed rate of twelve percent (12%) per
annum, payable in quarterly installments on the 1st day of September, December,
March and June of each year. Such dividends shall accrue from the date of
issuance of the shares of Series D Preferred Stock and shall be deemed to accrue
from day to day whether or not earned and declared. Such dividends shall be
payable before any dividends shall be paid, declared or set apart for any other
class of stock, and shall be cumulative so that if for any dividend period such
dividends are not paid or declared and set apart therefor, the deficiency shall
be paid, in whole or in part (without interest), on the next succeeding dividend
payment date on which the Corporation has any funds legally available therefor.
Until any delinquency has been fully paid or declared and set apart for payment,
no distribution, by dividend or otherwise, shall be paid on, declared or set
apart for any other class of stock of the Corporation and no shares of any other
class of stock shall be acquired, directly or indirectly, by redemption or
otherwise, except for the repurchase by the Corporation of shares of Common
Stock for an amount not in excess of the original sale price thereof pursuant to
employee stock purchase agreements. Notwithstanding the foregoing, the
Corporation, in its sole and absolute discretion, may pay such dividends through
the issuance of (i) fully paid and non-assessable shares of Common Stock
determined by dividing the accrued but unpaid dividend by the average closing
bid price for the Common Stock for the 10 trading days immediately preceding the
applicable dividend payment date or (ii) if available, fully paid and
non-assessable shares of Series D Preferred Stock determined by dividing the
accrued but unpaid dividend by.
4. RIGHTS ON LIQUIDATION. On any voluntary or involuntary
-----------------------
liquidation, dissolution or winding up of the Corporation, the holders of the
Series D Preferred Stock shall receive, out of assets legally available
therefor, an amount equal to $10.00 per share, plus all accrued but unpaid
dividends thereon (whether or not such dividends have been declared) to the date
fixed for payment of such distributive amount, before any amount shall be paid
to the holders of any other class of stock. In the event that the assets of the
Corporation available for distribution to the holders of the Series D Preferred
Stock are insufficient to permit full payment to the holders of such shares as
herein provided, then such assets shall be distributed ratably among the
outstanding shares of Series D Preferred Stock. In the event that the
Corporation has additional assets available for distribution after payment to
the holders of the Series D Preferred Stock as herein provided, such assets
shall be distributed to holders of Common Stock.
5. CONVERSION.
----------
(A) OPTIONAL CONVERSION OF THE SERIES D PREFERRED STOCK. At
----------------------------------------------------
the election of each holder and upon compliance with the provisions of
subparagraph (d) below as to surrender thereof, each share of Series D Preferred
Stock may be converted into that number of fully paid and non-assessable shares
of Common Stock of the Corporation (the "CONVERSION STOCK"), determined by
dividing $10.00 per share plus a sum equal to all accrued but unpaid dividends
by $0.20 (the "CONVERSION PRICE"). The conversion price shall be subject to
adjustment as hereinafter provided. The ability to convert also shall be
subject to the requirement that the aggregate conversion price of each
individual conversion (the "AGGREGATE CONVERSION PRICE") shall equal or exceed
$10,000 (the "CONVERSION MINIMUM").
(B) AUTOMATIC CONVERSION. Each remaining outstanding share of
--------------------
Series D Preferred Stock shall be automatically converted into shares of Common
Stock on December 31, 2007 in accordance with the provisions of subparagraph (a)
hereof. Pursuant to this subparagraph (b), on the Conversion Date (as defined
below), all outstanding shares of Series D Preferred Stock shall be converted
into that number of shares of Common Stock as determined in accordance with
subparagraph (a) hereof as if the conversion of such number of shares of Series
D Preferred Stock were made by the holders thereof in accordance therewith
without any further action on the part of such holders.
(C) CONVERSION AT OPTION OF CORPORATION. If for any ten (10)
------------------------------------
consecutive trading days the Market Price of the Corporation's Common Stock is
at least sixty cents ($0.60) per share (as adjusted for stock splits,
reorganizations, dividends, recapitalizations and the like), then at any time
within ten (10) business days after the end of such ten (10) trading day period,
2
the Corporation shall have the right to require the conversion of all outstanding shares of Series D Preferred Stock into shares of Common Stock in accordance with the provisions of subparagraph (a) hereof; provided, however, in the event that the Corporation elects to convert shares of Series D Preferred Stock to Common Stock pursuant to the terms of this subparagraph (c) prior to December 31, 2004, the Corporation shall only be able to require such conversion if a registration statement ("REGISTRATION STATEMENT") filed with the Securities and Exchange Commission ("SEC") is then effective. For purposes of this subparagraph (c), if on any date there shall be no reported closing bid price, the "MARKET PRICE" on such date shall be the closing bid price on the date next preceding such date on which a closing bid price for such security has been reported. Pursuant to this subparagraph (c), on the Conversion Date (as defined below), all outstanding shares of Series D Preferred Stock shall be converted into that number of shares of Common Stock as determined in accordance with subparagraph (a) hereof as if the conversion of such number of shares of Series D Preferred Stock were made by the holders thereof in accordance therewith without any further action on the part of such holders.
(D) DELIVERY OF STOCK CERTIFICATES. The holder of any shares
------------------------------
of Series D Preferred Stock may exercise the optional conversion right pursuant
to subparagraph (a) above by delivering to the Corporation or its duly
authorized transfer agent during regular business hours at the office of the
Corporation the certificate or certificates for the shares of Series D Preferred
Stock to be converted, duly endorsed or assigned either in blank or to the
Corporation (if required by it), accompanied by written notice (the "CONVERSION
NOTICE") stating that such holder elects to convert such shares of Series D
Preferred Stock and shall provide a certificate to the Corporation or its duly
authorized transfer agent as to the date of such conversion. Upon the
occurrence of an automatic conversion pursuant to subparagraph (b) above or
conversion at the option of the Corporation pursuant to subparagraph (c) above,
the Corporation shall deliver notice to each holder of Series D Preferred Stock
and the holder of any shares of Series D Preferred Stock shall deliver to the
Corporation at the office of the Corporation the certificate or certificates for
all shares of Series D Preferred Stock then held by such holder, duly endorsed
or assigned either in blank or to the Corporation (if requested by it).
Conversion shall be deemed to have been effected (i) in the case of an optional
conversion pursuant to subparagraph (a), on the date when the aforesaid delivery
of the Conversion Notice is made if such day is a business day and otherwise on
the business day following the date of the aforesaid delivery, (ii) in the case
of an automatic conversion pursuant to subparagraph (b) on December 31, 2007, or
(iii) in the case of conversion at the option of the Corporation pursuant to
subparagraph (c), upon the date of the notice, and in each case such date is
referred to herein as the "CONVERSION DATE." As promptly as practicable
thereafter, the Corporation, through its transfer agent, if any, shall issue and
deliver to or upon the written order of such holder, to the place designated by
such holder, a certificate or certificates for the number of full shares of
Common Stock to which such holder is entitled and a check or cash in respect of
any fractional interest in a share of Common Stock, as provided below; provided,
however, that in the case of a conversion in connection with liquidation, no
such certificates need be issued. The person in whose name the certificate or
certificates for Common Stock are to be issued shall be deemed to have become
the stockholder of record in respect of such Common Stock on the applicable
Conversion Date unless the transfer books of the Corporation are closed on that
date, in which event such holder shall be deemed to have become the stockholder
of record in respect of such Common Stock on the next succeeding date on which
the transfer books are open, but the Conversion Price shall be that in effect
on the Conversion Date. Upon conversion of only a portion of the number of
shares covered by a stock certificate representing shares of Series D Preferred
Stock surrendered for conversion, the Corporation shall issue and deliver to or
upon the written order of the holder of the stock certificate so surrendered for
conversion, at the expense of the Corporation, a new stock certificate covering
the number of shares of Series D Preferred Stock representing the unconverted
portion of the certificate so surrendered. Any transfer taxes applicable to the
above-described transactions shall be paid by such transferee. The Corporation
shall not be required to pay any tax which may be payable in respect of any
transfer involved in the issuance and delivery of Common Stock or the reissuance
of the Preferred Stock in a name other than that in which the shares of Series D
Preferred Stock so converted were registered, and no such issuance or delivery
shall be made unless and until the person requesting such issuance has paid to
the Corporation the amount of any such tax or has established to the
satisfaction of the Corporation that such tax has been paid.
(E) NO FRACTIONAL SHARES OF COMMON STOCK. No fractional shares of
-----------------------------------------
Common Stock shall be issued upon conversion of shares of Series D Preferred
Stock and in lieu thereof, the Corporation shall pay to the holder of such
fractional share interest cash in respect of such fractional interest in an
amount equal to the Market Price on the Conversion Date multiplied by such
fractional interest. The holders of fractional interests shall not be entitled
to any rights as stockholders of the Corporation in respect of such fractional
interests. In determining the number of shares of Common Stock and the payment,
if any, in lieu of fractional shares that a holder of Series D Preferred Stock
shall receive, the total number of shares of Series D Preferred Stock
surrendered for conversion by such holder shall be aggregated.
3
(F) CHANGES IN COMMON STOCK. If any capital reorganization or
--------------------------
reclassification of the capital stock of the Corporation, or consolidation or
merger of the Corporation with another corporation, or the sale, transfer or
other disposition of all or substantially all of its assets to another
corporation for cash or stock of such other corporation, shall be effected,
then, as a condition of such reorganization, reclassification, consolidation,
merger, sale, transfer or other disposition, lawful and adequate provision shall
be made whereby each holder of Series D Preferred Stock shall thereafter have
the right to purchase and receive upon the basis and upon the terms and
conditions herein specified and in lieu of the shares of the Common Stock of the
Corporation immediately theretofore issuable upon conversion of the Series D
Preferred Stock, such shares of stock, securities or properties as may be
issuable or payable with respect to or in exchange for a number of outstanding
shares of such Common Stock equal to the number of shares of such Common Stock
immediately theretofore issuable upon conversion of the Series D Preferred Stock
had such reorganization, reclassification, consolidation, merger, sale, transfer
or other disposition not taken place, and in any such case appropriate
provisions shall be made with respect to the rights and interests of each holder
of Series D Preferred Stock to the end that the provisions hereof (including,
without limitation, provisions for adjustment of the Conversion Price) shall
thereafter be applicable, as nearly equivalent as may be practicable in relation
to any shares of stock, securities or properties thereafter deliverable upon the
exercise thereof. The Corporation shall not effect any such consolidation,
merger, sale, transfer or other disposition, unless prior to or simultaneously
with the consummation thereof the successor corporation (if other than the
Corporation) resulting from such consolidation or merger or the corporation
purchasing or otherwise acquiring such properties shall assume, by written
instrument executed and mailed or delivered to the holders of Series D Preferred
Stock at the last address of such holders appearing on the books of the
Corporation, the obligation to deliver to such holders such shares of stock,
securities or properties as, in accordance with the foregoing provisions, such
holders may be entitled to acquire. The above provisions of this subparagraph
shall similarly apply to successive reorganizations, reclassifications,
consolidations, mergers, sales, transfers, or other dispositions.
(G) SALE OF SHARES BELOW CONVERSION PRICE.
------------------------------------------
(i) If at any time or from time to time after the Original Issue Date, the Corporation issues or sells, or is deemed by the express provisions of this subparagraph (g) to have issued or sold, Additional Shares of Common Stock (as defined in subparagraph (g)(iv) below), for an Effective Price (as defined in subparagraph (g)(iv) below) less than the then effective Conversion Price, then and in each such case the then existing Conversion Price shall be reduced, as of the opening of business on the date of such issue or sale, to such lesser price.
(ii) For the purpose of making any adjustment required under this subparagraph (g), the consideration received by the Corporation for any issue or sale of securities shall (A) to the extent it consists of cash, be computed at the amount of cash received by the Corporation without deduction for any underwriting or similar commissions, compensation or concessions paid or allowed by the Corporation in connection with such issue or sale, (B) to the extent it consists of property other than cash, be computed at the fair value of that property as determined in good faith by the Board of Directors, and (C) if Additional Shares of Common Stock, Convertible Securities (as defined in subparagraph (g)(iii)) or rights or options to purchase either Additional Shares of Common Stock or Convertible Securities are issued or sold together with other stock or securities or other assets of the Corporation for a consideration which covers both, be computed as the portion of the consideration so received that may be reasonably determined in good faith by the Board of Directors to be allocable to such Additional Shares of Common Stock, Convertible Securities or rights or options.
(iii) For the purpose of the adjustment required under this subparagraph (g), if the Corporation issues or sells (i) stock or other securities convertible into, Additional Shares of Common Stock (such convertible stock or securities being herein referred to as "CONVERTIBLE SECURITIES") or (ii) rights or options for the purchase of Additional Shares of Common Stock or Convertible Securities and if the Effective Price of such Additional Shares of Common Stock is less than the Conversion Price, in each case the Corporation shall be deemed to have issued at the time of the issuance of such rights or options or Convertible Securities the maximum number of Additional Shares of Common Stock issuable upon exercise or conversion thereof and to have received as consideration for the issuance of such shares an amount equal to the total amount of the consideration, if any, received by the Corporation for the issuance of such rights or options or Convertible Securities, plus, in the case of such rights or options, the minimum amounts of consideration, if any, payable to the Corporation upon the exercise of such rights or options, plus, in the case of Convertible Securities, the minimum amounts of consideration, if any, payable to the Corporation (other than by cancellation of liabilities or obligations evidenced by such Convertible Securities) upon the conversion thereof; provided that if in the case of Convertible Securities the minimum
4
amounts of such consideration cannot be ascertained, but are a function of antidilution or similar protective clauses, the Corporation shall be deemed to have received the minimum amounts of consideration without reference to such clauses; provided further that if the minimum amount of consideration payable to the Corporation upon the exercise or conversion of rights, options or Convertible Securities is reduced over time or on the occurrence or non-occurrence of specified events other than by reason of antidilution adjustments, the Effective Price, as hereinafter defined, shall be recalculated using the figure to which such minimum amount of consideration is reduced; provided further that if the minimum amount of consideration payable to the Corporation upon the exercise or conversion of such rights, options or Convertible Securities is subsequently increased, the Effective Price shall be again recalculated using the increased minimum amount of consideration payable to the Corporation upon the exercise or conversion of such rights, options or Convertible Securities. No further adjustment of the Conversion Price, as adjusted upon the issuance of such rights, options or Convertible Securities, shall be made as a result of the actual issuance of Additional Shares of Common Stock on the exercise of any such rights or options or the conversion of any such Convertible Securities. If any such rights or options or the conversion privilege represented by any such Convertible Securities shall expire without having been exercised, the Conversion Price as adjusted upon the issuance of such rights, options or Convertible Securities shall be readjusted to the Conversion Price which would have been in effect had an adjustment been made on the basis that the only Additional Shares of Common Stock so issued were the Additional Shares of Common Stock, if any, actually issued or sold on the exercise of such rights or options or rights of conversion of such Convertible Securities, and such Additional Shares of Common Stock, if any, were issued or sold for the consideration actually received by the Corporation upon such exercise, plus the consideration, if any, actually received by the Corporation for the granting of all such rights or options, whether or not exercised, plus the consideration received for issuing or selling the Convertible Securities actually converted, plus the consideration, if any, actually received by the Corporation (other than by cancellation of liabilities or obligations evidenced by such Convertible Securities) on the conversion of such Convertible Securities.
(iv) "ADDITIONAL SHARES OF COMMON STOCK" shall mean all shares of Common Stock issued by the Corporation or deemed to be issued pursuant to this subparagraph (g), other than (A) shares of Common Stock issued upon conversion of the Series D Preferred Stock; (B) shares of Common Stock and/or options, warrants or other Common Stock purchase rights, and the Common Stock issued pursuant to such options, warrants or other rights to employees, officers or directors of, or consultants or advisors to, the Corporation or any subsidiary pursuant to stock purchase or stock option plans, agreements or other arrangements that are approved by the Board of Directors; (C) shares of Common Stock issued pursuant to the exercise of options, warrants or convertible securities outstanding as of the Original Issue Date; (D) shares of Common Stock issued for consideration other than cash pursuant to a merger, consolidation, acquisition or similar business combination approved by the Board of Directors; (E) shares of Common Stock issued pursuant to any equipment leasing arrangement; (F) shares of Common Stock issued pursuant to any debt financing from a bank or similar financial institution approved by the Board of Directors; (G) shares of Common Stock issued with the approval of the Board of Directors to customers or vendors of, or consultants or advisors to, the Corporation or to persons with similar commercial relationships with the Corporation; (H) shares of Common Stock issued pursuant to corporate partnering transactions on terms approved by the Board of Directors; and (I) up to 100,000 shares of Common Stock (as adjusted for stock splits, stock dividends, stock combinations and the like) issued during any 180-day period commencing on or after the Original Issue Date and which are not otherwise excluded from the definition of Additional Shares of Common Stock pursuant to the foregoing provisions of this clause (iv). References to Common Stock in the subparagraphs of this clause (iv) above shall mean all shares of Common Stock issued by the Corporation or deemed to be issued pursuant to this subparagraph (g). The "EFFECTIVE PRICE" of Additional Shares of Common Stock shall mean the quotient determined by dividing the total number of Additional Shares of Common Stock issued or sold, or deemed to have been issued or sold by the Corporation under this subparagraph (g), into the aggregate consideration received, or deemed to have been received by the Corporation for such issue under this subparagraph (g), for such Additional Shares of Common Stock.
(H) STOCK TO BE RESERVED. The Corporation will at all times reserve
-----------------------
and keep available out of its authorized Common Stock, solely for the purpose of
issue upon the conversion of Series D Preferred Stock as herein provided, such
number of shares of Common Stock as shall then be issuable upon the conversion
of all outstanding Series D Preferred Stock. The Corporation covenants that all
shares of Common Stock which shall be so issuable shall, upon issuance, be duly
authorized, validly issued, fully paid and nonassessable, free from preemptive
or similar rights on the part of the holders of any shares of capital stock or
securities of the Corporation, and free from all liens and charges with respect
to the issue thereof; and without limiting the generality of the foregoing, the
Corporation covenants that it will from time to time take all such action as may
be requisite to assure that the par value, if any, per share of the Common Stock
is at all times equal to or less than the then effective Conversion Price. The
Corporation will take all such action as may be necessary to assure that such
shares of Common Stock may be so issued without violation by the Corporation of
any applicable law or regulation or agreement, or of any requirements of any
domestic securities exchange upon which the Common Stock may be listed. Without
limiting the foregoing, the Corporation will take all such action as may be
necessary to assure that, upon conversion of any of the Series D Preferred
Stock, an amount equal to the lesser of (i) the par value of each share of
5
Common Stock outstanding immediately prior to such conversion, or (ii) the Conversion Price shall be credited to the Corporation's stated capital account for each share of Common Stock issued upon such conversion, and that, if clause (i) above is applicable, the balance of the Conversion Price of Series D Preferred Stock converted shall be credited to the Corporation's capital surplus account.
(I) CLOSING OF BOOKS. The Corporation will at no time close its transfer
------------------
books against the transfer of any Series D Preferred Stock or of any shares of
Common Stock issued or issuable upon the conversion of any Series D Preferred
Stock in any manner which interferes with the timely conversion of such Series D
Preferred Stock.
(J) TAXES. The Corporation shall pay all documentary, stamp or other
-----
transactional taxes attributable to the issuance or delivery of shares of
capital stock of the Corporation upon conversion of any shares of Series D
Preferred Stock. The Corporation shall not, however, be required to pay any tax
which may be payable in respect of any transfer involved in the issuance and
delivery of Common Stock or the reissuance of the Series D Preferred Stock in a
name other than that in which the shares of Series D Preferred Stock so
converted were registered, and no such issuance or delivery shall be made unless
and until the person requesting such issuance has paid to the Corporation the
amount of any such tax or has established to the satisfaction of the Corporation
that such tax has been paid.
(K) EXCLUSION OF OTHER RIGHTS. Except as may otherwise be required by law,
--------------------------
the shares of Series D Preferred Stock shall not have any voting powers,
preferences and relative, participating, optional or other special rights, other
than those specifically set forth in this Certificate of Designations and in the
Certificate of Incorporation.
(L) LIMITATION ON ISSUANCE OF CONVERSION SHARES; REDEMPTION.
-------------------------------------------------------------
Notwithstanding anything herein to the contrary, a holder of Series D Preferred
Stock may not convert shares of Series D Preferred Stock to the extent such
conversion would result in the holder, together with any affiliate thereof,
beneficially owning (as determined in accordance with Section 13(d) of the
Securities Exchange Act of 1934, as amended (the "EXCHANGE ACT") and the rules
thereunder) in excess of 4.999% of the then issued and outstanding shares of
Common Stock, including shares issuable upon conversion of the shares of Series
D Preferred Stock held by such holder after application of this Section. The
holder shall have the sole authority and obligation to determine whether the
restriction contained in this Section applies and to the extent that the Holder
determines that the limitation contained in this Section applies, the
determination of which shares of Series D Preferred Stock are convertible shall
be in the sole discretion of the holder. The provisions of this Section may be
waived by a holder (but only as to itself and not to any other holder) upon not
less than 61 days prior notice to the Corporation. Other Holders shall be
unaffected by any such waiver.
6. NO REDEMPTION. The Series D Preferred Stock shall not be
--------------
redeemable by the Corporation.
6
RESOLVED, FURTHER, that the Chief Executive Officer, the President or any Vice-President, and the Secretary or any Assistant Secretary, of the Corporation be and they hereby are authorized and directed to prepare and file a Certificate of Designation of Preferences, rights and Limitations in accordance with the foregoing resolution and the provisions of Delaware law.
IN WITNESS WHEREOF, the undersigned have executed this Certificate this
23rd day of December, 2002.
----------------------------------------------
ALFRED H. FALK, Chief Executive Officer
----------------------------------------------
RAN FURMAN, Secretary
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of The Securities Exchange Act of 1934
DECEMBER 30, 2002
Date of Report (Date of earliest event reported)
E.DIGITAL CORPORATION
(Exact name of registrant as specified in charter)
DELAWARE
(State or other jurisdiction of incorporation)
0-20734
(Commission File Number)
33-0591385
(IRS Employer Identification No.)
13114 EVENING CREEK DRIVE SOUTH
SAN DIEGO, CALIFORNIA 92128
(Address of principal executive offices)
(858) 679-1504
(Registrant's telephone number, including area code)
================================================================================
ITEM 9. REGULATION FD DISCLOSURE.
The exhibits attached to this Form 8-K are hereby furnished pursuant
to Item 9.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized.
Date: December 30, 2002
E.DIGITAL CORPORATION
By: /s/ Ran Furman
--------------------------
Ran Furman, Chief Financial Officer
(Principal Financial and Accounting Officer and
duly authorized to sign on behalf of the
Registrant)
EXHIBIT INDEX
EXHIBIT NO. DESCRIPTION
------------ -----------
3.6 Certificate of Designation of Preferences, Rights and Limitations of Series
D Preferred Stock
4.40.1 First Amendment to 15% Promissory Note due February 11, 2004
4.41 Form of Conversion Agreement entered into with five holders of the
Company's 12% Promissory Notes due December 31, 2002 and three holders of
the Company's 24% Promissory Notes due December 31, 2002
99.1 Press release dated December 30, 2002, regarding restructure of $750,000 in
short-term debt and conversion of $2,050,000 of additional debt into shares
of newly designated Series D Preferred Stock
FlashQuotes for: Nasdaq-100 Nasdaq Financial-100 DJIA
IFTA INFOTOPIA INC IFTA
Jan. 4, 2002 15:50 ET Market Open
Last Sale: $ 0.029 Net Change: 0.016 35.56%
Today's High: $ 0.045 Today's Low: $ 0.027
Best Bid: $ 0.028 Best Ask: $ 0.029
Volume: 5,392,400 Previous Close: $ 0.045
More flooding, and now below 3 cents.
Prove you have nothing to hide.
How can anyone be expected to believe anything you say?
LOL...it doesn't take much for your paranoia to take over, does it?
Grow up.
Not really....
I wonder if 8 years of running a fleet of trucks ,then starting and running my own Co is enough understanding for you?
You know enough to run trucks, assuming that's what you are doing in your own company. We'll also assume your company is making money, to avoid a prolonged discussion.
As for me, let's just say I know much more about business than you do. I never give personal details on message boards, and that's something else you need to learn.
Really....so you are saying the option was exercised?
1. Exercise of Option.
(a) Subject to subsection (b) of this Section 1, this Option may be exercised upon presentation and surrender of this Option Certificate, with the attached Purchase Form (Exhibit A) duly executed, at the principal office of the Company, at 3540 31st Street, Suite 1, Tulsa Oklahoma 74135, or at such other place as the Company may designate by notice to the Holder, together with the Option Price. This Option may only be exercised in whole to purchase all of the SRR Stock.
(b) This Option to purchase the SRR Stock may be exercised at any time after 5:00 o'clock p.m., EST on January 1, 2002 and prior to 5:00 o'clock p.m., EST on August 1, 2002.
2. Purchased of Shares. Upon surrender of this Option Certificate and payment of the Option Price as aforesaid, the Company shall endorse and deliver the certificate or certificates representing the SRR Stock to Global, and shall cause all members of the board of directors of SRR appointed by the Company to resign from all of their positions therefrom.
Too bad the PR doesn't tell the investors the true story, and you can see the lack of impact the "news" had on the stock price.
Chitosol - An unfortunate choice, since "fat absorbers" are what brought the FTC down on Mark Levine & co.
Chitosan is not a wonder product, and Chitosol is nothing special.
Capital Advisory Partners is also a Georgia limited liability corporation. Its registered agent is the law firm of Briskin & Associates, LC, whose founder, Alan Briskin, used to be a partner in the Alpharetta, Georgia law firm of Briskin & Rinde. His partner in that firm was named Jeffrey Rinde.
There may be some more connections worth noting. Judith Adler is identified as the Managing Member of Kilkenny. Mrs. Adler was also listed in her individual capacity as a selling shareholder (along with Capital Advisory Partners and Gata) in a Registration Statement filed by Delsoft Consulting, Inc. in October 2000. Bondy & Schloss acted as attorneys for Delsoft in connection with that registration. And Bondy & Schloss partner, Jeffrey Rinde, served as Chief Financial Officer and a Director of Delsoft from 1997 through November 1999.
According to the Merger Agreement between Grand Enterprises and EC2000, Ms. Adler resides at 420 East 79th Street, New York, N.Y, Apt. 12-D,an apartment building on Manhattan’s Upper East Side. That is also the address that we found listed for an individual named Gerald Adler (a lawsuit filed against Bondy & Schloss, Mr. Adler, Mr. Rinde and Infotopia by J Group Holdings lists Apartment 12-D at 420 East 79th Street as Mr. Adler’s address. See Infotopia, Inc., The Professionals – Playing Defense). Is that the same Gerald Adler who is a partner in the law firm of Bondy & Schloss? If so, is he related to Judith Adler? As best we can determine, the Delsoft and Grand Enterprises Registration Statements do not disclose any relationship between Ms. Adler or Kilkenny on the one hand and Gerald Adler or the law firm of Bondy & Schloss on the other.
One more thing. Benjamin Giacchino, Managing Member of Monkstown, also served as a Director of Delsoft, and reportedly sold Delsoft shares under Rule 144. Prior to that time, between 1991 and 1993, Giacchino was a stockbroker at Greenway Capital Corp. (later Cortlandt Capital Corp.), a brokerage firm that lost its license in 1998 after the SEC charged Greenway with securities manipulation.
We Shell Overcome
Stock Patrol has uncovered still more connections among Kilkenny, Finglas, Monkstown, Rathgar and Capital Advisory Partners. These entities have joined together repeatedly to acquire interests in companies, including several “shells. Consider the following:
• On November 19th Infotopia, Inc. filed a Form 10-Q disclosing that its wholly-owned subsidiary, East Side Venture Partners LLC, had acquired shares of DLD Group, Inc., a public company, formed in Delaware in April 2000 as a “blank check” shell without any operations. At the time DLD was formed its sole director and officer was Patricia Meding. Like Grand Enterprises, DLD had retained Meding’s firm, Capital Advisory Partners, to find a reverse-merger partner.
The original shareholders of DLD were Capital Advisory Partners; Kilkenny; Rathgar; Finglas; and Monkstown, each of which had initially been issued 800,000 shares of DLD stock for $80 – just as they had when Grand Enterprises was formed. This time, however, each of those entities subsequently sold 760,000 of their DLD shares to East Side Venture (the Infotopia subsidiary) in March 2001 for an aggregate sum of $200,000. That constituted a profit of $199,600, which seemed considerable since the Company still had no business.
In April 2001, DLD found a business – or at least a potential one – acquiring rights to a pending patent application relating to water filters and purifiers. But DLD apparently does not have a patent just yet. It says it has the rights to a pending patent application, and there can be no assurance when, or even if, the patent will be issued. After the acquisition, Ms. Meding resigned as an officer and director of DLD. Infotopia’s President Ernest Zavoral, who also serves as Managing Member of East Side Venture, is now the Chairman of the Board of DLD.
Despite considerable uncertainty about the prospects for the patent, DLD has filed a Registration Statement covering all shares owned by East Coast Venture (3.8 million shares); Capital Advisory Partners (40,000 shares); Kilkenny (40,000 shares); Rathgar (40,000 shares); Finglas (40,000 shares); and Monkstown (40,000 shares). DLD’s lawyers for the offering? Jeffrey Rinde and Bondy & Schloss.
• On August 7, 2001, an OTC Bulletin Board company called Millennium Direct, Inc. filed a Form 8-K disclosing its acquisition of Blue Capital Associates, Inc. (BCA), a private company whose shareholders were East Side Venture; Monkstown; Finglas; Rathgar; Kilkenny; and Capital Advisory Partners. It is unclear what, if any assets, Blue Capital had at the time of the acquisition. Millennium has now changed its name to Blue Capital Associates, Inc.
• Freeman Technologies Corporation is another “blank check” shell company with the same cast of characters. It has yet to acquire an operating business, although, like DLD, it has retained Capital Advisory Partners for that task. Patricia Meding remains Freeman’s sole officer and director. Its shareholders consist of Capital Advisory Partners (800,000 shares); Kilkenny (800,000 shares); Rathgar (800,000 shares); Finglas (800,000 shares); and Monkstown (800,000 shares). Freeman’s attorneys are Bondy & Schloss.
• This group of shareholders got together once again to form another shell corporation, Castle Hill Associates, Inc. Like Freeman, Castle Hill still has no operating business, although it has retained Capital Advisory Partners to find one. Patricia Meding is Castle Hill’s sole officer and director. Its shareholders consist of Capital Advisory Partners (200,000 shares); Kilkenny (200,000 shares); Rathgar (200,000 shares); Finglas (200,000 shares); and Monkstown (200,000 shares).
The DLD Registration Statement is still pending, so there is no telling when this band of shareholders will be free to start selling their DLD stock. And shares of Freeman and Castle Hill could eventually hit the market as well, once those companies finally find a business – or at least the rights to a patent application.
Those prospects should keep investors on their toes. We know we’ll be watching for developments.
http://www.stockpatrol.com/schlock/articles/zero3.html
ZERO DEGREES OF SEPARATION, PART III – WERE THOSE IRISH EYES SMILING, OR IS GEORGIA ON THEIR MIND?
December 6, 2001
As we have seen in the first two installments of this series, there is an abundance of cross-pollination when it comes to the investors, attorneys, and consultants involved with public companies such as Infotopia, Ives Health, HIV-VAC and Grand Enterprises. Some of the players, like Teodisio Pangia, Alan Berkun and Joseph Blumenthal, have been the subject of serious regulatory scrutiny. Other names are far less familiar, but they all certainly seem to be well-connected.
Luck of the Irish
Remember Kilkenny Group LLC; Rathgar LLC; Finglas LLC; and Monkstown LLC? They have something in common – in addition to the fact that each of the entities acquired 800,000 shares of Grand Enterprises common stock for $80. Rathgar, Finglas and Monkstown are also the names of three villages in Dublin, Ireland. And Kilkenny is the name of a town in Central Ireland.
Could that be a mere coincidence? We have found no disclosure suggesting that the four companies are under common ownership and control. To the contrary, each identifies a different individual as its “Managing Member”: Judith Adler of New York City for Kilkenny; Dr. Stuart Erner of Slingerlands, New York for Rathgar; Irwin Goodman of Alpharetta, Georgia for Finglas; and Ben Giacchino of Woodstock, Georgia for Monkstown (Finglas has also provided an address in Boynton Beach, Florida.
What do they have in common – aside from an apparent affinity for Irish names? We discovered that two of the entities, Rathgar and Monkstown were created as New York limited liability corporations on May 10, 2000. In both cases Jeffrey Rinde of Bondy & Schloss is listed with the New York State Division of Corporations as the person who has been designated to accept service of papers – like civil complaints and other court documents – on behalf of the corporation.
On the other hand, Kilkenny and Finglas were both formed as limited liability corporations in Georgia on that same date, May 10, 2000. Both list their address as 6 East 43rd Street, New York, N.Y., – the same location as the offices of Bondy & Schloss.
Capital Advisory Partners is also a Georgia limited liability corporation. Its registered agent is the law firm of Briskin & Associates, LC, whose founder, Alan Briskin, used to be a partner in the Alpharetta, Georgia law firm of Briskin & Rinde. His partner in that firm was named Jeffrey Rinde.
There may be some more connections worth noting. Judith Adler is identified as the Managing Member of Kilkenny. Mrs. Adler was also listed in her individual capacity as a selling shareholder (along with Capital Advisory Partners and Gata) in a Registration Statement filed by Delsoft Consulting, Inc. in October 2000. Bondy & Schloss acted as attorneys for Delsoft in connection with that registration. And Bondy & Schloss partner, Jeffrey Rinde, served as Chief Financial Officer and a Director of Delsoft from 1997 through November 1999.
According to the Merger Agreement between Grand Enterprises and EC2000, Ms. Adler resides at 420 East 79th Street, New York, N.Y, Apt. 12-D,an apartment building on Manhattan’s Upper East Side. That is also the address that we found listed for an individual named Gerald Adler (a lawsuit filed against Bondy & Schloss, Mr. Adler, Mr. Rinde and Infotopia by J Group Holdings lists Apartment 12-D at 420 East 79th Street as Mr. Adler’s address. See Infotopia, Inc., The Professionals – Playing Defense). Is that the same Gerald Adler who is a partner in the law firm of Bondy & Schloss? If so, is he related to Judith Adler? As best we can determine, the Delsoft and Grand Enterprises Registration Statements do not disclose any relationship between Ms. Adler or Kilkenny on the one hand and Gerald Adler or the law firm of Bondy & Schloss on the other.
One more thing. Benjamin Giacchino, Managing Member of Monkstown, also served as a Director of Delsoft, and reportedly sold Delsoft shares under Rule 144. Prior to that time, between 1991 and 1993, Giacchino was a stockbroker at Greenway Capital Corp. (later Cortlandt Capital Corp.), a brokerage firm that lost its license in 1998 after the SEC charged Greenway with securities manipulation.
We Shell Overcome
Stock Patrol has uncovered still more connections among Kilkenny, Finglas, Monkstown, Rathgar and Capital Advisory Partners. These entities have joined together repeatedly to acquire interests in companies, including several “shells. Consider the following:
• On November 19th Infotopia, Inc. filed a Form 10-Q disclosing that its wholly-owned subsidiary, East Side Venture Partners LLC, had acquired shares of DLD Group, Inc., a public company, formed in Delaware in April 2000 as a “blank check” shell without any operations. At the time DLD was formed its sole director and officer was Patricia Meding. Like Grand Enterprises, DLD had retained Meding’s firm, Capital Advisory Partners, to find a reverse-merger partner.
The original shareholders of DLD were Capital Advisory Partners; Kilkenny; Rathgar; Finglas; and Monkstown, each of which had initially been issued 800,000 shares of DLD stock for $80 – just as they had when Grand Enterprises was formed. This time, however, each of those entities subsequently sold 760,000 of their DLD shares to East Side Venture (the Infotopia subsidiary) in March 2001 for an aggregate sum of $200,000. That constituted a profit of $199,600, which seemed considerable since the Company still had no business.
In April 2001, DLD found a business – or at least a potential one – acquiring rights to a pending patent application relating to water filters and purifiers. But DLD apparently does not have a patent just yet. It says it has the rights to a pending patent application, and there can be no assurance when, or even if, the patent will be issued. After the acquisition, Ms. Meding resigned as an officer and director of DLD. Infotopia’s President Ernest Zavoral, who also serves as Managing Member of East Side Venture, is now the Chairman of the Board of DLD.
Despite considerable uncertainty about the prospects for the patent, DLD has filed a Registration Statement covering all shares owned by East Coast Venture (3.8 million shares); Capital Advisory Partners (40,000 shares); Kilkenny (40,000 shares); Rathgar (40,000 shares); Finglas (40,000 shares); and Monkstown (40,000 shares). DLD’s lawyers for the offering? Jeffrey Rinde and Bondy & Schloss.
• On August 7, 2001, an OTC Bulletin Board company called Millennium Direct, Inc. filed a Form 8-K disclosing its acquisition of Blue Capital Associates, Inc. (BCA), a private company whose shareholders were East Side Venture; Monkstown; Finglas; Rathgar; Kilkenny; and Capital Advisory Partners. It is unclear what, if any assets, Blue Capital had at the time of the acquisition. Millennium has now changed its name to Blue Capital Associates, Inc.
• Freeman Technologies Corporation is another “blank check” shell company with the same cast of characters. It has yet to acquire an operating business, although, like DLD, it has retained Capital Advisory Partners for that task. Patricia Meding remains Freeman’s sole officer and director. Its shareholders consist of Capital Advisory Partners (800,000 shares); Kilkenny (800,000 shares); Rathgar (800,000 shares); Finglas (800,000 shares); and Monkstown (800,000 shares). Freeman’s attorneys are Bondy & Schloss.
• This group of shareholders got together once again to form another shell corporation, Castle Hill Associates, Inc. Like Freeman, Castle Hill still has no operating business, although it has retained Capital Advisory Partners to find one. Patricia Meding is Castle Hill’s sole officer and director. Its shareholders consist of Capital Advisory Partners (200,000 shares); Kilkenny (200,000 shares); Rathgar (200,000 shares); Finglas (200,000 shares); and Monkstown (200,000 shares).
The DLD Registration Statement is still pending, so there is no telling when this band of shareholders will be free to start selling their DLD stock. And shares of Freeman and Castle Hill could eventually hit the market as well, once those companies finally find a business – or at least the rights to a patent application.
Those prospects should keep investors on their toes. We know we’ll be watching for developments.
http://www.stockpatrol.com/schlock/articles/zero3.html
How childish can you get? Have we seen the full extent of your immaturity yet? Will you grow up soon?
I don't know. I told you before that I don't even like this company anymore, so don't spout your basher lies at me.
I'm going to start TOSing your posts for spam. I believe you have some sort of connection with stockpatrol. You only post here when they have an update.
You need to be removed from any position of power until you are old enough to stop sucking your thumb.
Insider Trades (Sellers) Reported on Form 4 Description
Click on the column header links to resort ascending () or descending ().
Insider
Select an insider below for more information. Relation Last
Date Trans
Type Shares
Traded Last
Price Shares
Held
BONDY & SCHLOSS LLP B 11/21/2001 Sell
547,000 $0.180 1,594,008
BONDY & SCHLOSS LLP B 10/31/2001 Sell
803,582 $0.410 1,140,828
LOZOWICKI MAREK VP 6/18/2001 Sell
1,880,000 $0.030 1,228,861
ZAVORAL ERNEST P 6/9/2001 Sell
11,000,000 $0.030 1,106,780
LOZOWICKI MAREK VP 5/31/2001 Sell
2,055,000 $0.020 3,108,861
LOZOWICKI MAREK VP 4/27/2001 Sell
3,745,000 $0.050 5,663,861
HOYNG DANIEL CB 4/16/2001 Sell
14,640,440 $0.050 570,000
HOYNG DANIEL CB 4/16/2001 Sell
14,640,440 $0.070 570,000
ZAVORAL ERNEST P 1/31/2001 Sell
2,366,788 $0.170 0
SMITH CLINTON OD 1/22/2001 Sell
200,000 $0.200 992,500
LOZOWICKI MAREK VP 1/22/2001 Sell
1,795,000 $0.180 0
HOYNG DANIEL CB 1/22/2001 Sell
1,931,200 $0.170 -
DELOTT MARK A SH 8/29/2000 Sell
773,388 $0.490 -
DELOTT MARK A SH 6/15/2000 Sell
109,500 $0.150 913,388
DELOTT MARK A SH 5/23/2000 Sell
33,000 $0.250 1,022,888
Why has there been no activity on this IFTA thread since 21 Nov 01?
I blame you.
I almost hate to disturb the struggle for political control of the thread but I'll try this again...
What is the result of this option being exercised?
OPTION
TO PURCHASE 100% OF THE COMMON STOCK
OF
SOUTHEASTERN RESEARCH and RECOVERY, INC.
Not Transferable or Exercisable Except
Upon Conditions Herein Specified
Dated, June 21, 2001
Effective, January 1, 2002
Void, August 1, 2002
CORPORATE VISION, INC., an Oklahoma corporation (the "Company") hereby grants to GLOBAL ECO-LOGICAL SERVICES, INC. ("Global"), a Florida corporation (hereinafter the "Holder"), an option (the "Option") to purchase all of the issued and outstanding common stock (the "SRR Stock") of SOUTHEASTERN RESEARCH and RECOVERY, INC. ("SRR"), being 500 shares of no par common stock issued of SRR issued in the name of the Company, for Twenty-Two Million Five Hundred Thousand (22,500,000) shares of Company common stock (plus any additional shares of Company common stock issued or issuable to Global pursuant to Section 2.01 of that Share Exchange Agreement dated June 21, 2001), and Two Hundred Thousand Dollars ($200,000) cash (collectively, the "Option Price"), upon the terms and conditions herein set forth.
1. Exercise of Option.
(a) Subject to subsection (b) of this Section 1, this Option may be exercised upon presentation and surrender of this Option Certificate, with the attached Purchase Form (Exhibit A) duly executed, at the principal office of the Company, at 3540 31st Street, Suite 1, Tulsa Oklahoma 74135, or at such other place as the Company may designate by notice to the Holder, together with the Option Price. This Option may only be exercised in whole to purchase all of the SRR Stock.
(b) This Option to purchase the SRR Stock may be exercised at any time after 5:00 o'clock p.m., EST on January 1, 2002 and prior to 5:00 o'clock p.m., EST on August 1, 2002.
2. Purchased of Shares. Upon surrender of this Option Certificate and payment of the Option Price as aforesaid, the Company shall endorse and deliver the certificate or certificates representing the SRR Stock to Global, and shall cause all members of the board of directors of SRR appointed by the Company to resign from all of their positions therefrom.
Such certificate or certificates shall be deemed to have been issued, and Global shall be deemed to have become a holder of record of such SRR Stock, as of the date of valid exercise of this Option and payment of the Option Price, as aforesaid, notwithstanding that the certificates representing such SRR Stock shall not actually have been delivered or that the transfer shall not have been reflected on the stock transfer books of SRR.
3. Knowledge and Experience; Financial Capability and Net Worth.
The Holder has (i) such knowledge and experience in financial and business matters that he is capable of evaluating the merits and risks of the investment in the Shares, (ii) had such risks explained to the Holder and has determined that such investment is suitable for the Holder in view of his financial circumstances and available investment opportunities, (iii) sufficient net worth and income to bear the economic risk of investment in the Purchased Shares, and (iv) no need for liquidity of the investment and no reason to anticipate any change in the Holder's financial circumstances which may cause or require any sale, transfer or other distribution of the Purchased Shares.
4. Liquidation or Dissolution.
In case the Company dissolves or liquidates, the Company shall make appropriate provision so that the SRR Stock which would be received by the Holder upon the exercise of this Option at the time immediately prior to the effective date of such dissolution or liquidation will be available to the Holder from the liquidating trust; provided that the Holder shall make the determination as to whether to exercise this Option within six months of the effective date of dissolution or liquidation, at which time this Option shall be terminated and of no further force or effect and the Holder's rights under this Option shall be automatically terminated.
5. No Impairment. The Company shall at all times in good faith assist in the carrying out of all such terms and in the taking of all such actions as may be necessary or appropriate to protect the rights of the Holder against impairment.
6. Remedies. The Company stipulates that the remedies at law of the Holder in the event of any default or threatened default by the Company in the performance of or compliance with any of the terms of this Option are not and will not be adequate and that, without limiting any other remedy available at law, such terms may be specifically enforced by a decree for the specific performance of any agreement contained herein or by an injunction against a violation of any of the terms hereof. The rights and remedies of the Holder are cumulative and not exclusive of any rights or remedies which the Holder might otherwise have.
7. Survival. The various rights and obligations of the Holder hereof as set forth herein shall survive the exercise of this Option at any time or from time to time and the surrender of this Option Certificate.
8. Notices. Whenever any notice, payment of any purchase price or other communication (any such notice, payment or other communication, a "Delivery") is required to be given or delivered under the terms of this Option, it shall be in writing and delivered by hand delivery or Federal Express or registered or certified United States mail, postage prepaid and return receipt requested, and will be deemed to have been given or delivered on the date such notice, purchase price or other communication is so delivered. Any delivery to the Company, shall be addressed to 3540 E. 31st Street, Suite 1, Tulsa, Oklahoma, 74135, or to such other address as the Company may hereafter designate to the Holder in writing; any Delivery to the Holder shall be addressed to 3 Broad Street, Suite 300, Charleston, South Carolina 29412 or to such other address as the Holder may hereafter designate to the Company in writing.
9. Change; Waiver. Neither this Option nor any term hereof may be changed, waived, discharged or terminated orally, but only by an instrument in writing signed by the party against which enforcement of the change, waiver, discharge or termination is sought. No failure or delay of the Holder in exercising any power or right hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or power, or any abandonment or discontinuance of steps to enforce such a right or power, preclude any other or further exercise thereof or the exercise of any other right or power.
10. Covenants to Bind Successor and Assigns. The terms of this Option shall bind the successors and permitted assigns of the Holder and the Company.
11. Severability. In case any one or more of the provisions contained in this Option shall be invalid, illegal or unenforceable in any respect, the validity, legality or enforceability of the remaining provisions contained herein shall not in any way be affected or impaired thereby. The parties shall endeavor in good faith negotiations to replace the invalid, illegal or unenforceable provisions with valid provisions the economic effect of which comes as close as possible to that of the invalid, illegal or unenforceable provisions.
12. General. SRR and the Company represent and warrant to the Holder that the SRR Stock represents all of the issued and outstanding shares of common stock of SRR, that the Company is the owner and holder of the SRR Stock, that the SRR Stock is free and clear of all liens, claims and encumbrances, that this Option does not violate the terms of any agreement, contract, judgment or lien affecting or relating to the Company or SRR.
The Company agrees that it will not transfer, assign, pledge, hypothecate or convey the SRR Stock in any manner prior to the expiration date of this Option without the express without the express written consent of the Holder. The Company agrees that any additional shares of common stock issued to it in SRR after the date of this Option shall be considered SRR Stock as if such shares were outstanding on the date of this Option. SRR agrees that it will not issue any additional shares of its common stock to any person after the date of this Option without the express written consent of the Holder.
13. Changes in Capital Structure.
If the Option shall be exercised subsequent to any share dividend, split-up, recapitalization, merger, consolidation, combination or exchange of shares, separation, reorganization, or liquidation of the Company occurring after the date hereof, as a result of which shares of any class shall be issued in respect of outstanding Common Shares of the Company or said Common Shares shall be changes into the same of a different number of shares of the same or another class or classes, then Global shall instead be obligated to deliver upon exercise of this Option that number of shares of Company common stock then held by Global as a result of such corporate actions.
CORPORATE VISION, INC., an
Oklahoma corporation
By: /s/ Gary Mays
Gary Mays, CEO
EXHIBIT A
PURCHASE FORM
TO: CORPORATE VISION, INC.
The undersigned hereby irrevocably elects to exercise the Option evidenced by the attached Option Certificate to the extent of ___________________ (__________) shares of the Common Stock of SOUTHEASTERN RESEARCH and RECOVERY,INC., and hereby makes payment of Two Hundred Thousand Dollars ($200,000) and _________________________ (__________) shares of CORPORATE VISION, INC. stock in accordance with the provisions of Section 1 of the Option Certificate in payment of the purchase price thereof.
Name of Holder: GLOBAL ECO-LOGICAL SERVICES, INC.
Signature of Holder:
Address of Holder: 3 Broad Street, Suite 300,
Charleston, South Carolina 29412
http://www.10kwizard.com/filing.php?param=sym%3DCVIA-sdate%3D19000000-edate%3D30000000&repo=tenk....
I disagree...and I have visited hundreds of companies over 30 years. Unless you understand the businesses you visit and what they do, you'll get a 'dog and pony show', and that's all.
The old "call the company" routine is a red flag, and I have lost count of the people who have visited now defunct companies and given glowing reports on what they have been shown.
Check the financials, look at the same ratios as banks look at. Check out the people running the company, and ask lots of questions. Check the answers to the questions for veracity, and never get sentimentally attached to a company or investment.
I never "call the company" - and I have never found that suggestion useful. I would appreciate any kind of real answer to the question though.
What is the result of this option being exercised?
OPTION
TO PURCHASE 100% OF THE COMMON STOCK
OF
SOUTHEASTERN RESEARCH and RECOVERY, INC.
Not Transferable or Exercisable Except
Upon Conditions Herein Specified
Dated, June 21, 2001
Effective, January 1, 2002
Void, August 1, 2002
CORPORATE VISION, INC., an Oklahoma corporation (the "Company") hereby grants to GLOBAL ECO-LOGICAL SERVICES, INC. ("Global"), a Florida corporation (hereinafter the "Holder"), an option (the "Option") to purchase all of the issued and outstanding common stock (the "SRR Stock") of SOUTHEASTERN RESEARCH and RECOVERY, INC. ("SRR"), being 500 shares of no par common stock issued of SRR issued in the name of the Company, for Twenty-Two Million Five Hundred Thousand (22,500,000) shares of Company common stock (plus any additional shares of Company common stock issued or issuable to Global pursuant to Section 2.01 of that Share Exchange Agreement dated June 21, 2001), and Two Hundred Thousand Dollars ($200,000) cash (collectively, the "Option Price"), upon the terms and conditions herein set forth.
1. Exercise of Option.
(a) Subject to subsection (b) of this Section 1, this Option may be exercised upon presentation and surrender of this Option Certificate, with the attached Purchase Form (Exhibit A) duly executed, at the principal office of the Company, at 3540 31st Street, Suite 1, Tulsa Oklahoma 74135, or at such other place as the Company may designate by notice to the Holder, together with the Option Price. This Option may only be exercised in whole to purchase all of the SRR Stock.
(b) This Option to purchase the SRR Stock may be exercised at any time after 5:00 o'clock p.m., EST on January 1, 2002 and prior to 5:00 o'clock p.m., EST on August 1, 2002.
2. Purchased of Shares. Upon surrender of this Option Certificate and payment of the Option Price as aforesaid, the Company shall endorse and deliver the certificate or certificates representing the SRR Stock to Global, and shall cause all members of the board of directors of SRR appointed by the Company to resign from all of their positions therefrom.
Such certificate or certificates shall be deemed to have been issued, and Global shall be deemed to have become a holder of record of such SRR Stock, as of the date of valid exercise of this Option and payment of the Option Price, as aforesaid, notwithstanding that the certificates representing such SRR Stock shall not actually have been delivered or that the transfer shall not have been reflected on the stock transfer books of SRR.
3. Knowledge and Experience; Financial Capability and Net Worth.
The Holder has (i) such knowledge and experience in financial and business matters that he is capable of evaluating the merits and risks of the investment in the Shares, (ii) had such risks explained to the Holder and has determined that such investment is suitable for the Holder in view of his financial circumstances and available investment opportunities, (iii) sufficient net worth and income to bear the economic risk of investment in the Purchased Shares, and (iv) no need for liquidity of the investment and no reason to anticipate any change in the Holder's financial circumstances which may cause or require any sale, transfer or other distribution of the Purchased Shares.
4. Liquidation or Dissolution.
In case the Company dissolves or liquidates, the Company shall make appropriate provision so that the SRR Stock which would be received by the Holder upon the exercise of this Option at the time immediately prior to the effective date of such dissolution or liquidation will be available to the Holder from the liquidating trust; provided that the Holder shall make the determination as to whether to exercise this Option within six months of the effective date of dissolution or liquidation, at which time this Option shall be terminated and of no further force or effect and the Holder's rights under this Option shall be automatically terminated.
5. No Impairment. The Company shall at all times in good faith assist in the carrying out of all such terms and in the taking of all such actions as may be necessary or appropriate to protect the rights of the Holder against impairment.
6. Remedies. The Company stipulates that the remedies at law of the Holder in the event of any default or threatened default by the Company in the performance of or compliance with any of the terms of this Option are not and will not be adequate and that, without limiting any other remedy available at law, such terms may be specifically enforced by a decree for the specific performance of any agreement contained herein or by an injunction against a violation of any of the terms hereof. The rights and remedies of the Holder are cumulative and not exclusive of any rights or remedies which the Holder might otherwise have.
7. Survival. The various rights and obligations of the Holder hereof as set forth herein shall survive the exercise of this Option at any time or from time to time and the surrender of this Option Certificate.
8. Notices. Whenever any notice, payment of any purchase price or other communication (any such notice, payment or other communication, a "Delivery") is required to be given or delivered under the terms of this Option, it shall be in writing and delivered by hand delivery or Federal Express or registered or certified United States mail, postage prepaid and return receipt requested, and will be deemed to have been given or delivered on the date such notice, purchase price or other communication is so delivered. Any delivery to the Company, shall be addressed to 3540 E. 31st Street, Suite 1, Tulsa, Oklahoma, 74135, or to such other address as the Company may hereafter designate to the Holder in writing; any Delivery to the Holder shall be addressed to 3 Broad Street, Suite 300, Charleston, South Carolina 29412 or to such other address as the Holder may hereafter designate to the Company in writing.
9. Change; Waiver. Neither this Option nor any term hereof may be changed, waived, discharged or terminated orally, but only by an instrument in writing signed by the party against which enforcement of the change, waiver, discharge or termination is sought. No failure or delay of the Holder in exercising any power or right hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or power, or any abandonment or discontinuance of steps to enforce such a right or power, preclude any other or further exercise thereof or the exercise of any other right or power.
10. Covenants to Bind Successor and Assigns. The terms of this Option shall bind the successors and permitted assigns of the Holder and the Company.
11. Severability. In case any one or more of the provisions contained in this Option shall be invalid, illegal or unenforceable in any respect, the validity, legality or enforceability of the remaining provisions contained herein shall not in any way be affected or impaired thereby. The parties shall endeavor in good faith negotiations to replace the invalid, illegal or unenforceable provisions with valid provisions the economic effect of which comes as close as possible to that of the invalid, illegal or unenforceable provisions.
12. General. SRR and the Company represent and warrant to the Holder that the SRR Stock represents all of the issued and outstanding shares of common stock of SRR, that the Company is the owner and holder of the SRR Stock, that the SRR Stock is free and clear of all liens, claims and encumbrances, that this Option does not violate the terms of any agreement, contract, judgment or lien affecting or relating to the Company or SRR.
The Company agrees that it will not transfer, assign, pledge, hypothecate or convey the SRR Stock in any manner prior to the expiration date of this Option without the express without the express written consent of the Holder. The Company agrees that any additional shares of common stock issued to it in SRR after the date of this Option shall be considered SRR Stock as if such shares were outstanding on the date of this Option. SRR agrees that it will not issue any additional shares of its common stock to any person after the date of this Option without the express written consent of the Holder.
13. Changes in Capital Structure.
If the Option shall be exercised subsequent to any share dividend, split-up, recapitalization, merger, consolidation, combination or exchange of shares, separation, reorganization, or liquidation of the Company occurring after the date hereof, as a result of which shares of any class shall be issued in respect of outstanding Common Shares of the Company or said Common Shares shall be changes into the same of a different number of shares of the same or another class or classes, then Global shall instead be obligated to deliver upon exercise of this Option that number of shares of Company common stock then held by Global as a result of such corporate actions.
CORPORATE VISION, INC., an
Oklahoma corporation
By: /s/ Gary Mays
Gary Mays, CEO
EXHIBIT A
PURCHASE FORM
TO: CORPORATE VISION, INC.
The undersigned hereby irrevocably elects to exercise the Option evidenced by the attached Option Certificate to the extent of ___________________ (__________) shares of the Common Stock of SOUTHEASTERN RESEARCH and RECOVERY,INC., and hereby makes payment of Two Hundred Thousand Dollars ($200,000) and _________________________ (__________) shares of CORPORATE VISION, INC. stock in accordance with the provisions of Section 1 of the Option Certificate in payment of the purchase price thereof.
Name of Holder: GLOBAL ECO-LOGICAL SERVICES, INC.
Signature of Holder:
Address of Holder: 3 Broad Street, Suite 300,
Charleston, South Carolina 29412
http://www.10kwizard.com/filing.php?param=sym%3DCVIA-sdate%3D19000000-edate%3D30000000&repo=tenk...
Still as dumb as ever, aren't you?
Posted by: Joemoney
In reply to: A deleted message Date: 10/23/2001 1:33:17 AM
Post # of 403
slow scion, I cannot remove posts, I'm not the admin of this board, but I can have you deleted from iHub and banned forever by just replying to your posts.
"I just received proof that Janice Shell was once compensated for AZNT work,"
That is true. I received an email from an source (I'm not releasing who it was) that showed proof that she was paid $20,000 for work done on AZNT.
And what do you mean MORE SEC flak? I haven't gotten any yet, LOL.
You removed my ealier post, and no doubt you'll remove this one, because that's the kind of coward you are..
Either retract this statement or produce proof...and you have none.
"I just received proof that Janice Shell was once compensated for AZNT work,"
Just shooting from your lip, slow joe?
BTW...expect more SEC flak about your lack of disclosure on your touting posts.
What you can do slow joe, is stop making false accusations against other people.
Do grow up soon, won't you?
Stop behaving like a baby who has had his pacifier taken away.
Why don't you grow up?
I don't think I have ever encountered such petulance before, and you need to learn that you cannot run to Bob every time someone says something you disagree with.
And as for stalking...I don't do that. I post on many boards.
You, on the other hand, have a record of stalking Janice Shell on many RB boards to make personal attacks.
Now stop whining to Bob.
You lack the ability to comprehend, don't you?
I know where you live, and it's NOT in a $1 million apartment.
and yes i do live in a $1 million apartment. i'm not afraid to brag. eom
No need to tell me how old he is Willy...check this out.
Posted by: Joemoney
In reply to: scion who wrote msg# 96 Date: 4/19/2001 3:07:34 PM (ET)
Post # of 98
scion
i'm 20 years old and yes i have been buying stock and following the markets very closely since i was 10. i used my birthday money from my 9th and 10th birthday to buy my first stock.
joe
What next? He invented the internet and was the first to buy stocks on the web?
Sure you did.....
and that's why you are living in a $1 million apartment, right?
You cannot keep making these things up and expect to have any credibility.
Pull the other one, it has bells on...
Hal.....
Read this and tell me how old he is...
Posted by: Joemoney
In reply to: scion who wrote msg# 94 Date: 4/19/2001 2:53:43 PM (ET)
Post # of 96
scion
your not my investment advisor. i have done well for the past 10 years of investing without studying so indepth into companies.
joe