-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, RIQSR65EwMSkCvPqaqwDNx0mdYNMcK/Lk2zFtxEAQ5t8cykOeldScHbB6GpFgzNv yx3WewTNl0kIw1xodf3log== 0001015402-04-003911.txt : 20040920 0001015402-04-003911.hdr.sgml : 20040920 20040920142225 ACCESSION NUMBER: 0001015402-04-003911 CONFORMED SUBMISSION TYPE: 8-K PUBLIC DOCUMENT COUNT: 9 CONFORMED PERIOD OF REPORT: 20040917 ITEM INFORMATION: Entry into a Material Definitive Agreement ITEM INFORMATION: Completion of Acquisition or Disposition of Assets ITEM INFORMATION: Unregistered Sales of Equity Securities ITEM INFORMATION: Departure of Directors or Principal Officers; Election of Directors; Appointment of Principal Officers ITEM INFORMATION: Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year FILED AS OF DATE: 20040920 DATE AS OF CHANGE: 20040920 FILER: COMPANY DATA: COMPANY CONFORMED NAME: ANZA CAPITAL INC CENTRAL INDEX KEY: 0000926844 STANDARD INDUSTRIAL CLASSIFICATION: FINANCE SERVICES [6199] IRS NUMBER: 881273503 STATE OF INCORPORATION: NV FISCAL YEAR END: 0430 FILING VALUES: FORM TYPE: 8-K SEC ACT: 1934 Act SEC FILE NUMBER: 000-24512 FILM NUMBER: 041037317 BUSINESS ADDRESS: STREET 1: 3200 BRISTOL STREET STREET 2: SUITE 710 CITY: COSTA MESA STATE: CA ZIP: 92626 BUSINESS PHONE: 7148662100 MAIL ADDRESS: STREET 1: 3200 BRISTOL STREET STREET 2: SUITE 710 CITY: COSTA MESA STATE: CA ZIP: 92626 FORMER COMPANY: FORMER CONFORMED NAME: E-NET FINANCIAL COM CORP DATE OF NAME CHANGE: 20000317 FORMER COMPANY: FORMER CONFORMED NAME: E-NET COM CORP DATE OF NAME CHANGE: 20000127 FORMER COMPANY: FORMER CONFORMED NAME: E NET FINANCIAL CORP DATE OF NAME CHANGE: 19990920 8-K 1 doc1.txt UNITED STATES SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 FORM 8-K CURRENT REPORT PURSUANT TO SECTION 13 OR 15(D) OF THE SECURITIES EXCHANGE ACT OF 1934 Date of Report (Date of earliest event reported): SEPTEMBER 17, 2004 ANZA CAPITAL, INC. (Exact name of registrant as specified in its charter) NEVADA O-24512 88-1273503 (State or other (Commission (I.R.S. Employer jurisdiction of incorporation) File Number) Identification No.) 3200 BRISTOL STREET, SUITE 700 COSTA MESA, CA 92626 (Address of principal executive offices) (zip code) (714) 866-2100 (Registrant's telephone number, including area code) (Former name or former address, if changed since last report.) ITEM 1.01 ENTRY INTO A MATERIAL DEFINITIVE AGREEMENT Securities Exchange Agreement - ----------------------------- On September 17, 2004, we entered into a Securities Exchange Agreement with Peter and Irene Gauld. Under the terms of the Agreement, we exchanged 500,000 shares of our newly created Series G Convertible Preferred Stock, and warrants to purchase 2,000,000 shares of our common stock, for 1,000,000 shares of common stock of Cash Technologies, Inc., a publicly traded company (the "TQ Shares"). The initial value of the TQ Shares was approximately $1,320,000 at the inception of the Agreement. We are required to make certain adjustments as follows to the value of the TQ Shares: - Within 10 business days of the end of each calendar quarter, beginning with the quarter ended December 31, 2004 (each, a "Supplemental TQ Share Valuation Date"), the escrow agent will update the value of the TQ Shares held in escrow by multiplying the average closing price for the 30 days before the end of the applicable quarter times the number of TQ Shares then held in escrow, and then adding the value of any cash or other assets (valued in the same manner as the TQ Shares, or otherwise at their fair market value) then held in escrow (the "Supplemental TQ Shares Value"). - If the Supplemental TQ Shares Value exceeds $1,000,000, then either (i) upon the receipt of a written request from Gauld, that number of TQ Shares may be released from escrow to Gauld so that the Supplemental TQ Share Value is approximately $1,000,000, or (ii) upon the mutual consent of us and Gauld, we will issue additional shares of Series G shares equal to the then-Supplemental TQ Share Value. In the event that any of the TQ Shares have been previously released from escrow, and the Supplemental TQ Share Value is subsequently less than $1,000,000, upon the receipt of a written request from us, Gauld will re-deposit that number of TQ Shares (up to the original 1,000,000 TQ Shares), or cash or other assets acceptable to us, with the escrow agent so that the Supplemental TQ Share Value is approximately $1,000,000. - If the Supplemental TQ Share Value is less than $1,000,000, and all of the TQ Shares are already held in escrow, then upon the receipt of a written request from us, that number of Series G shares will be released from escrow to us so that the original issue price of the Series G then held in escrow will be approximately equal to the Supplemental TQ Share Value. If, on a subsequent Supplemental TQ Share Valuation Date, the Supplemental TQ Share Value exceeds $1,000,000, then we will have the choice of re-depositing any withdrawn Series G shares to bring the 2 Supplemental TQ Share Value back to $1,000,000, or adjusting the number of TQ Shares as set forth above. Additionally, the Agreement has certain rescission rights as follows: - Upon the receipt of notice by Gauld of any claim or demand, not currently known to them, that is reasonably likely to have an effect on our warehouse line of credit, the TQ Shares, and/or the Series G shares then held in escrow, or if we fail to make a dividend payment on the Series G shares within 10 days of its due date, or if there is a change in control of Anza, then Gauld may rescind the Agreement. Upon rescission of the Agreement, the escrow agent will return any TQ Shares (or other assets) held in escrow to Gauld, and any Series G shares held in escrow to us. We may rescind the Agreement at any time after the date which is 6 months after the Closing Date by providing 30 days advance written notice to Gauld. However, if we rescind the Agreement during the 30-day period immediately following the notice period, we are limited to rescinding the transaction only with respect to one-half of the then-outstanding Series G shares. These time periods are waived for us if Gauld exercises a conversion of the Series G shares. After the termination of the Agreement, the escrow agent will return any TQ Shares held in escrow to Gauld, and any Series G shares held in escrow to us. The Agreement calls for the various parties to deposit their consideration with an escrow agent, until such a time as either (i) all of the Series G shares are converted into shares of our common stock, or (ii) the escrow is terminated in accordance with the Agreement, as noted above. In either case, the warrants are transferred to Gauld within two days from depositing in the escrow. The Series G shares, par value $0.001 per share, with original issue price of $2.00 per share, have non-cumulative dividends at 12% per annum, payable when declared. The Series G shares are immediately convertible into shares of our common stock, subject to certain adjustments, at a price equal to the lesser of $0.08 per share or 80% of the 30-day average closing bid price for the 30 trading days prior to the date we receive a conversion notice. All outstanding shares of Series G Convertible Preferred Stock are automatically converted into our common stock on September 17, 2009, 5 years after the original issue date. The warrants to purchase up to 2,000,000 shares of our common stock have an exercise price of $0.10 per share and expire in 5 years. Consulting Agreement and Warrant Agreements - ------------------------------------------- We were assisted in the Stock Exchange Agreement by GunnAllen Financial. We previously entered into an Advisory Agreement with GunnAllen dated November 25, 2003, and executed an Addendum to that agreement dated September 3, 2004. Pursuant 3 to these agreement, on September 15, 2004 we issued to GunnAllen warrants to acquire a total of 250,000 shares of our common stock at $0.25 per share, and 200,000 shares of our common stock at $0.10 per share. Both warrants are exercisable for a period of five years. ITEM 2.01 COMPLETION OF ACQUISITION OR DISPOSITION OF ASSETS See description of Securities Exchange Agreement in Item 1.01. ITEM 3.02 UNREGISTERED SALES OF EQUITY SECURITIES On September 17, 2004, we agreed to issue 500,000 shares of our newly created Series G Convertible Preferred Stock, and warrants to purchase 2,000,000 shares of our common stock, in exchange for 1,000,000 shares of common stock of Cash Technologies, Inc. The issuance was exempt from registration pursuant to Section 4(2) of the Securities Act of 1933, and the shareholders were accredited. ITEM 5.02 DEPARTURE OF DIRECTORS OR PRINCIPAL OFFICERS; ELECTION OF DIRECTORS; APPOINTMENT OF PRINCIPAL OFFICERS On September 17, 2004, Mr. L. Wade Svicarovich resigned from our Board of Directors. Mr. Svicarovich's resignation was not related or in response to the Securities Exchange Agreement entered into on that same date, and was not due to any disagreement with us. ITEM 5.03 AMENDMENTS TO ARTICLES OF INCORPORATION OR BYLAWS; CHANGE IN FISCAL YEAR On September 17, 2004, in conjunction with the Securities Exchange Agreement described in Item 1.01, we executed a Certificate of Designation of the Rights, Privileges, and Preferences of our Series G Convertible Preferred Stock. The Certificate of Designation will be filed immediately with the Nevada Secretary of State. EXHIBITS ITEM NO. DESCRIPTION - --------- ----------- 4.1 Certificate of Designation of Series G Convertible Preferred Stock 10.1 (1) Term Sheet executed September 11, 2004 10.2 Securities Exchange Agreement dated September 17, 2004 10.3 Escrow Agreement dated September 17, 2004 10.4 Warrant Agreement dated with Gauld September 17, 2004 4 10.5 Advisory Agreement with GunnAllen Financial dated November 25, 2003 10.6 Addendum to Advisory Agreement with GunnAllen Financial dated September 3, 2004 10.7 Warrant Agreement with GunnAllen dated September 15, 2004 10.8 Warrant Agreement with GunnAllen dated September 15, 2004 5 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 hereunto duly authorized. Dated: September 20, 2004 Anza Capital, Inc., a Nevada corporation /s/ Vincent Rinehart -------------------------------------------- By Vincent Rinehart Its: President and Chief Executive Officer 6 EX-4.1 2 doc2.txt EXHIBIT 4.1 CERTIFICATE OF DESIGNATION OF THE RIGHTS, PREFERENCES, PRIVILEGES AND RESTRICTIONS, WHICH HAVE NOT BEEN SET FORTH IN THE CERTIFICATE OF INCORPORATION OR IN ANY AMENDMENT THERETO, OF THE SERIES G CONVERTIBLE PREFERRED STOCK OF ANZA CAPITAL, INC. The undersigned, Vincent Rinehart, does hereby certify that: A. He is the duly elected and acting President, CEO, and Secretary of Anza Capital, Inc., a Nevada corporation (the "Company"). B. Pursuant to the Unanimous Written Consent of the Board of Directors of the Company dated September 17, 2004, the Board of Directors duly adopted the following resolutions: WHEREAS, the Certificate of Incorporation of the Company, as amended and restated, authorizes a class of stock designated as Preferred Stock, par value $0.001 (the "Preferred Class"), comprising Two Million Five Hundred Thousand (2,500,000) shares, and provides that the Board of Directors of the Company may fix the terms, including any dividend rights, dividend rates, conversion rights, voting rights, rights and terms of any redemption, redemption price or prices, and liquidation preferences, if any, of the Preferred Class; WHEREAS, the Board of Directors believes it in the best interests of the Company to create a series of preferred stock consisting of 750,000 shares and designated as the "Series G Convertible Preferred Stock" having certain rights, preferences, privileges, restrictions and other matters relating to the Series G Convertible Preferred Stock. No shares of Series G Convertible Preferred Stock have been issued; NOW, THEREFORE, BE IT RESOLVED, that the Board of Directors does hereby fix and determine the rights, preferences, privileges, restrictions and other matters relating do the Series G Convertible Preferred Stock as follows: 1. Definitions. For purposes of this Certificate of Designation, the ------------ following definitions shall apply: 1.1 "Board" shall mean the Board of Directors of the Company. 1.2 "Company" shall mean Anza Capital, Inc., a Nevada corporation. 1.3 "Common Stock" shall mean the Common Stock, $0.001 par value per share, of the Company. Page 1 of 6 1.4 "Common Stock Dividend" shall mean a stock dividend declared and paid on the Common Stock that is payable in shares of Common Stock. 1.5 "Distribution" shall mean the transfer of cash or property by the Company to one or more of its stockholders without consideration, whether by dividend or otherwise (except a dividend in shares of Company's stock). 1.6 "Original Issue Date" shall mean the date on which the first share of Series G Convertible Preferred Stock is issued by the Company. 1.7 "Original Issue Price" shall mean $2.00 per share for the Series G Convertible Preferred Stock. 1.8 "Series G Convertible Preferred Stock" shall mean the Series G Convertible Preferred Stock, par value $0.001 per share, of the Company. 1.9 "Subsidiary" shall mean any corporation or limited liability company of which at least fifty percent (50%) of the outstanding voting stock or membership interests, as the case may be, is at the time owned directly or indirectly by the Company or by one or more of such subsidiary corporations: 2. Dividend Rights. ---------------- 2.1 Cash Dividends. In each calendar month, the holders of the then --------------- outstanding Series G Convertible Preferred Stock shall be entitled to receive, not later than ten (10) days following the end of the previous applicable month, out of any funds and assets of the Company legally available therefor, noncumulative dividends in an amount equal to twelve percent (12%) per annum. No dividends (other than a Common Stock Dividend) shall be paid, and no Distribution shall be made, with respect to the Common Stock unless dividends in such amount shall have been paid or declared and set apart for payment to the holders of the Series G Convertible Preferred Stock simultaneously. 2.2 Participation Rights. Other than as set forth in Section 2.1, --------------------- dividends shall be declared pro rata on the Common Stock and the Series G Convertible Preferred Stock on a pari passu basis according to the number of shares of Common Stock held by such holders, where each holder of shares of Series G Convertible Preferred Stock is to be treated for this purpose as holding the Conversion Shares (as defined in section 4, below) as if they converted their shares of Series G Convertible Preferred Stock at the time of such dividend in accordance with Section 4 hereof. 3. Liquidation Rights. In the event of any liquidation, dissolution or ------------------- winding up of the Company; whether voluntary or involuntary, the funds and assets of the Company that may be legally distributed to the Company's shareholders (the "Available Funds and Assets") shall be distributed to shareholders in the following manner: Page 2 of 6 3.1 Series G Convertible Preferred Stock. The holders of each share of Series G Preferred Stock then outstanding shall be entitled to be paid, out of the Available Funds and Assets, and prior and in preference to any payment or distribution (or any setting apart of any payment or distribution) of any Available Funds and Assets on any shares of Common Stock or subsequent series of preferred stock, an amount per share equal to Two and One-Half Times (2.5x) the Original Issue Price of the Series G Convertible Preferred Stock plus all declared but unpaid dividends on the Series G Convertible Preferred Stock. If upon any liquidation, dissolution or winding up of the Company, the Available Funds and Assets shall be insufficient to permit the payment to holders of the Series G Convertible Preferred Stock of their full preferential amount as described in this subsection, then all of the remaining Available Funds and Assets shall be distributed among the holders of the then outstanding Series G Convertible Preferred Stock pro rata, according to the number of outstanding shares of Series G Convertible Preferred Stock held by each holder thereof. 3.2 Merger or Sale of Assets. A reorganization or any other consolidation or merger of the Company with or into any other corporation, or any other sale of all or substantially all of the assets of the Company, shall be deemed to be a liquidation, dissolution or winding up of the Company within the meaning of this Section 3, and the Series G Convertible Preferred Stock shall be entitled to the rights set forth herein. 3.3 Non-Cash Consideration. If any assets of the Company distributed to shareholders in connection with any liquidation, dissolution or winding up of the Company are other than cash, then the value of such assets shall be their fair market value as determined by the Board. 4. Conversion Rights. ------------------ (a) Conversion of Preferred Stock. Each share of Series G Convertible Preferred Stock shall be convertible, at any time after the Original Issue Date, into that number of fully paid and nonassessable shares of Common Stock of the Company described in section 4(b) below. On the date which is five (5) years after the Original Issue Date, all of the then-outstanding shares of Series G Convertible Preferred Stock shall automatically be converted in accordance with this Section 4. (b) Determination of Number of Shares of Common Stock Upon Conversion. The number of shares of Common Stock into which each share of Series G Convertible Preferred Stock may be converted shall be determined by dividing the Original Issue Price by the Conversion Price (determined as hereinafter provided) in effect at the time of conversion (the "Conversion Shares"). (c) Determination of Initial Conversion Price. The conversion price per share (the "Conversion Price") at which shares of Common Stock shall initially be issuable upon conversion of the Series G Convertible Preferred Stock shall be equal to the lesser of (i) $0.08 per share, or (ii) eighty percent (80%) of the thirty (30) day average closing bid price for the thrity (30) trading days prior to the date the Company receives a conversion notice from Holder, which receipt may be via facsimile transmission. Page 3 of 6 (d) Procedures for Exercise of Conversion Rights. The holders of any shares of Series G Convertible Preferred Stock may exercise their conversion rights as to all such shares or any part thereof by delivering to the Company during regular business hours, or at such other place as may be designated by the Company, the certificate or certificates for the shares to be converted, duly endorsed for transfer to the Company, accompanied by written notice stating that the holder elects to convert such shares. Conversion shall be deemed to have been effected on the date which is forty five (45) days after when such delivery is made, and such date is referred to herein as the "Conversion Date." Within a reasonable period of time following the Conversion Date, the Company shall issue and deliver to the holder, or upon the written order of such holder, at such office or other place designated by the Company, a certificate or certificates for the number of full shares of Common Stock to which such holder is entitled and a check for cash with respect to any fractional interest in a share of Common Stock as provided in section 4(e) below. The holder shall be deemed to have become a shareholder of record on the Conversion Date, and the applicable Conversion Price shall be the Conversion Price in effect on the delivery date of the conversion notice. Upon conversion of only a portion of the number of shares of Series G Convertible Preferred Stock represented by a certificate surrendered for conversion, the Company shall issue and deliver to or upon the written order of the holder of the certificate so surrendered for conversion, at the expense of the Company, a new certificate covering the number of shares of Series G Convertible Preferred Stock representing the unconverted portion of the certificate so surrendered. (e) No Fractional Shares. No fractional shares of Common Stock or scrip shall be issued upon conversion of shares of Series G Convertible Preferred Stock. If more than one share of Series G Convertible Preferred Stock shall be surrendered for conversion at any one time by the same holder, the number of full shares of Common Stock issuable upon conversion thereof shall be computed on the basis of the aggregate number of shares of Series G Convertible Preferred Stock so surrendered. Instead of any fractional shares of Common Stock which would otherwise be issuable upon conversion of any shares of Series G Convertible Preferred Stock, the Company shall pay a cash adjustment in respect of such fractional interest equal to the fair market value of such fractional interest as determined by the Company's Board of Directors. (f) Payment of Taxes for Conversions. The Company shall pay any and all issue and other taxes that may be payable in respect of any issue or delivery of shares of Common Stock on conversion pursuant hereto of Series G Convertible Preferred Stock. The Company shall not, however, be required to pay any tax which may be payable in respect of any transfer involved in the issue and delivery of shares of Common Stock in a name other than that in which the shares of Series G Convertible Preferred Stock so converted were registered, and no such issue or delivery shall be made unless and until the person requesting such issue has paid to the Company the amount of any such tax, or has established, to the satisfaction of the Company, that such tax has been paid. (g) Reservation of Common Stock. The Company shall at all times reserve and keep available, out of its authorized but unissued Common Stock, solely for the purpose of effecting the conversion of the Series G Convertible Preferred Stock, the full number of shares of Page 4 of 6 Common Stock deliverable upon the conversion of all shares of all series of preferred stock from time to time outstanding. (h) Registration or Listing of Shares of Common Stock. If any shares of Common Stock to be reserved for the purpose of conversion of shares of Series G Convertible Preferred Stock require registration or listing with, or approval of, any governmental authority, stock exchange or other regulatory body under any federal or state law or regulation or otherwise, before such shares may be validly issued or delivered upon conversion, the Company will in good faith and as expeditiously as possible endeavor to secure such registration, listing or approval, as the case may be. This subsection shall not obligate the Company to prepare and file a resale registration statement with the Securities and Exchange Commission. (i) Status of Common Stock Issued Upon Conversion. All shares of Common Stock which may be issued upon conversion of the shares of Series G Convertible Preferred Stock will upon issuance by the Company be validly issued, fully paid and nonassessable and free from all taxes, liens and charges with respect to the issuance thereof, and their resale will be subject to the terms and conditions of Rule 144 promulgated under the Securities Act of 1933. (j) Status of Converted Preferred Stock. In case any shares of Series G Convertible Preferred Stock shall be converted pursuant to this section 4, the shares so converted shall be canceled and shall not be issuable by the Company. 5. Adjustment of Conversion Shares. ---------------------------------- (a) General Provisions. In case, at any time after the date hereof, of any capital reorganization, or any reclassification of the stock of the Company (other than a change in par value or as a result of a stock dividend or subdivision, split-up or combination of shares), or the consolidation or merger of the Company with or into another person (other than a consolidation or merger in which the Company is the continuing entity and which does not result in any change in the Common Stock), or of the sale or other disposition of all or substantially all the properties and assets of the Company as an entirety to any other person, the shares of Series G Convertible Preferred Stock shall, after such reorganization, reclassification, consolidation, merger, sale or other disposition, be convertible into the kind and number of shares of stock or other securities or property of the Company or of the entity resulting from such consolidation or surviving such merger or to which such properties and assets shall have been sold or otherwise disposed to which such holder would have been entitled if immediately prior to such reorganization, reclassification, consolidation, merger, sale or other disposition it had converted its shares of Series G Convertible Preferred Stock into Common Stock. The provisions of this section 5(a) shall similarly apply to successive reorganizations, reclassifications, consolidations, mergers, sales or other dispositions. (b) Adjustment for Stock Splits. In case the Company shall at any time subdivide the outstanding shares of Common Stock, or shall issue a stock dividend on its outstanding Common Stock, the number of Conversion Shares shall be proportionately increased, and in case the Company shall at any time combine the outstanding shares of Common Stock, the number of Conversion Shares shall be proportionately decreased, effective Page 5 of 6 at the close of business on the date of such subdivision, dividend, or combination, as the case may be. (c) No Impairment. The Company will not, through any reorganization, transfer of assets, consolidation, merger, dissolution, issue or sale of securities or any other voluntary action, including amending this Certificate of Designation, avoid or seek to avoid the observance or performance of any of the terms to be observed or performed hereunder by the Company, but will at all times in good faith assist in the carrying out of all the provisions of this section 5 and in the taking of all such action as may be necessary or appropriate in order to protect the conversion rights of the holders of Series G Convertible Preferred Stock against impairment. This provision shall not restrict the Company from amending its Articles of Incorporation in accordance with the Nevada Revised Statutes and the terms hereof. Specifically, the Company will not (i) create or issue any equity security that ranks senior to or on parity with the Series G Convertible Preferred Stock, (ii) increase the number of authorized shares of Series G Convertible Preferred Stock, or (iii) alter the rights, privileges, and preferences of the Series G Convertible Preferred Stock, without the consent of a majority of the then-outstanding shares of Series G Convertible Preferred Stock. 6. Notices. Any notices required by the provisions of this Certificate ------- of Designation to be given to the holders of shares of Series G Convertible Preferred Stock shall be deemed given if deposited in the United States mail, postage prepaid, and addressed to each holder of record at its address appearing on the books of the Company. 7. Voting Provisions. The Series G Convertible Preferred Stock shall not ----------------- have any voting rights. IN WITNESS WHEREOF, the Company has caused this Certificate of Designation of Series G Convertible Preferred Stock to be duly executed by its President and attested to by its Secretary and has caused its corporate seal to be affixed hereto effective as of September 17, 2004. By: /s/ Vincent Rinehart --------------------------------------------- Vincent Rinehart, President and Secretary Page 6 of 6 EX-10.2 3 doc3.txt EXHIBIT 10.2 SECURITIES EXCHANGE AGREEMENT BY AND BETWEEN ANZA CAPITAL, INC., A NEVADA CORPORATION, AND PETER AND IRENE GAULD SECURITIES EXCHANGE AGREEMENT This Securities Exchange Agreement (the "AGREEMENT") is entered into effective this 17th day of September, 2004, by and between Anza Capital, Inc., a Nevada corporation ("ANZA"), and Peter and Irene Gauld, each an individual (collectively referred to as "GAULD"). Each of Anza and Gauld shall be referred to as a "Party" and collectively as the "Parties." RECITALS WHEREAS, Anza's common stock is traded on the Over the Counter Bulletin Board under the symbol "AZAC"; WHEREAS, Gauld is the owner of One Million (1,000,000) shares (the "TQ SHARES") of common stock of Cash Technologies, Inc. ("TQ"), whose stock is traded on the American Stock Exchange; WHEREAS, Anza has established a series of preferred stock known as the Series G Convertible Preferred Stock (the "PREFERRED STOCK"), the rights, privileges, and preferences of which are as set forth in the Certificate of Designation attached hereto as Exhibit A; ---------- WHEREAS, the Parties desire to enter into this Securities Exchange Agreement for the purpose of diversifying their assets while improving their respective net worth; NOW, THEREFORE, for good and adequate consideration, the receipt of which is hereby acknowledged, the Parties covenant, promise and agree as follows: AGREEMENT 1. TERMS OF THE EXCHANGE: The Exchange shall be consummated on the ------------------------ following terms and conditions: (a) The closing of the transactions contemplated hereby shall be the date this Agreement is entered into (the "CLOSING DATE"), notwithstanding the fact that the Parties may still need to deliver securities in compliance with their obligations hereunder. (b) Within ten (10) business days of the Closing Date, Gauld shall deliver to the escrow agent (the "ESCROW AGENT") as set forth in that certain Escrow Agreement attached hereto as Exhibit B (the "ESCROW AGREEMENT"), the TQ Shares. --------- (c) Within ten (10) business days of the Closing Date, Anza shall cause to be issued and shall deliver to the Escrow Agent, pursuant to the terms of the Escrow Agreement, Five Hundred Thousand (500,000) shares of Preferred Stock (the "ANZA SHARES"). (d) Within five (5) business days of the Closing Date, ANZA shall cause to be issued and shall deliver to the Escrow Agent, pursuant to the terms of the Escrow Agreement, warrants to 1 acquire Two Million (2,000,000) shares of Anza common stock at an exercise price of $0.10 per share as set forth in the Warrant Agreement attached hereto as Exhibit C (the "ANZA WARRANTS"). - ---------- 2. REPRESENTATIONS, WARRANTIES AND AGREEMENTS BY GAULD: Gauld hereby ------------------------------------------------------- represents, warrants and agrees as follows: (a) Gauld has all requisite power and authority to enter into and perform this Agreement and to consummate the transactions contemplated hereby and to effect the exchange of the shares in accordance with the terms hereof. (b) The information heretofore furnished by Gauld to Anza for purposes of or in connection with this Agreement or any transaction contemplated hereby does not, and all such information hereafter furnished by Gauld to Anza will not (in each case taken together and on the date as of which such information is furnished), contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements contained therein, in the light of the circumstances under which they are made, not misleading. (c) The representations and warranties herein by Gauld will be true and correct in all material respects on and as of the date hereof and will, except as provided herein, survive the Closing Date. (d) No form of general solicitation or general advertising was used by Gauld or Anza or, to the best of its actual knowledge, any other person acting on behalf of Gauld or Anza, in connection with the exchange. (e) Gauld acknowledges that Gauld has been furnished with such financial and other information concerning Anza, the directors and officers of Anza, and the business of Anza as Gauld considers necessary in connection with the transactions contemplated hereby. As a result, Gauld is familiar with the business, operations, properties, and financial condition of Anza and has discussed, either directly or through its agent, with officers or legal counsel of Anza any questions Gauld may have had with respect thereto. Gauld has consulted with his or her own legal, accounting, tax, investment and other advisers with respect to the tax treatment, merits, and risks of the transactions contemplated hereby. (f) Gauld hereby agrees to indemnify and defend Anza and its directors and officers and hold them harmless from and against any and all liability, damage, cost or expense incurred on account of or arising out of: (i) Any breach of or inaccuracy in Gauld's representations, warranties or agreements herein; (ii) Any action, suit or proceeding based on a claim that any of said representations, warranties or agreements were inaccurate or misleading or otherwise cause for obtaining damages or redress from Anza or any director or officer of Anza. 2 (g) The representations, warranties and agreements contained in this Agreement shall be binding on Gauld's successors, assigns, heirs and legal representatives and shall inure to the benefit of the respective successors and assigns of Anza and its directors and officers. (h) Gauld acknowledges and agrees that the Anza Shares and any shares of Anza acquired upon exercise of the Anza Warrants (the "WARRANT SHARES" and together with the Anza Warrants and the Anza Shares, the "ANZA SECURITIES") will be "restricted securities" as that term is defined in Rule 144 under the Securities Act of 1933 (the "ACT") and, accordingly, that the Anza Securities must be held indefinitely unless they are subsequently registered under the Act and qualified under applicable state blue sky law and any other applicable securities law or exemptions from such registration and qualification as are available. Gauld understands that, other than as set forth in this Agreement, Anza is under no obligation to register the Anza Securities under the Act, to qualify the Anza Securities under any securities law, or to comply with any exemption under the Act or any other law. Gauld understands that Rule 144 prevents the sale of any of the Anza Securities for at least one year, and only then under certain specific circumstances (i) Gauld hereby represents that as of the Closing Date, (i) the TQ Shares represent less than 19.9% of the issued and outstanding common stock of TQ, and (ii) the TQ Shares have been included in a registration statement and are eligible for immediate resale in accordance with Rule 144. 3. REPRESENTATIONS, WARRANTIES AND AGREEMENTS BY ANZA: Anza hereby ------------------------------------------------------- represents, warrants and agrees as follows: (a) Anza is a corporation duly organized, validly existing and in good standing under the laws of Nevada, with full power and authority to own, lease, use, and operate its properties and to carry on its business as and where now owned, leased, used, operated and conducted. Anza has all requisite corporate power and authority to enter into and perform this Agreement and to consummate the transactions contemplated hereby and to effect the exchange of the shares in accordance with the terms hereof. (b) The information heretofore furnished by Anza to Gauld for purposes of or in connection with this Agreement or any transaction contemplated hereby does not, and all such information hereafter furnished by Anza to Gauld will not (in each case taken together and on the date as of which such information is furnished), contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements contained therein, in the light of the circumstances under which they are made, not misleading. (c) The representations and warranties herein made by Anza will be true and correct in all material respects on and as of the date hereof and will, except as provided herein, survive the Closing Date. (d) Anza acknowledges that it has been furnished with such financial and other information concerning TQ, the directors and officers of TQ, and the business of TQ as Anza considers necessary in connection with the transactions contemplated hereby. As a result, Anza is 3 familiar with the business, operations, properties, and financial condition of TQ and has discussed with Gauld any questions it may have had with respect thereto. Anza has consulted with its own legal, accounting, tax, investment and other advisers with respect to the tax treatment, merits, and risks of the transactions contemplated hereby. (e) Anza hereby agrees to indemnify and defend Gauld and hold them harmless from and against any and all liability, damage, cost or expense incurred on account of or arising out of: (i) Any breach of or inaccuracy in Anza's representations, warranties or agreements herein; (ii) Any action, suit or proceeding based on a claim that any of said representations, warranties or agreements were inaccurate or misleading or otherwise cause for obtaining damages or redress from Gauld. (f) During the term of this Agreement, Anza will provide notice to Gauld, within twenty-four (24) hours of it becoming aware, of any claim or demand by a third party that is reasonably likely to have an effect on the First Collateral Bank warehouse facility, the TQ Shares, and/or the Anza Shares then held in escrow. (g) The representations, warranties and agreements contained in this Agreement shall be binding on Anza's successors, assigns, heirs and legal representatives and shall inure to the benefit of the respective successors and assigns of Gauld. (h) As of the date of this Agreement, (i) Anza is authorized to issue 100,000,000 shares of common stock, par value $0.001, and 2,500,000 shares of preferred stock, par value $0.001; (ii) there are 9,496,346 shares of common stock issued, 5,358,846 shares of common stock outstanding, and 27,000.5 shares of preferred stock outstanding; and (iii) on a fully diluted basis, including outstanding options and warrants, there are approximately 9,478,878 shares of common stock outstanding. 4. VALUATION AND ADJUSTMENTS: Gauld and Anza hereby agree as follows: ---------------------------- (a) As of September 14, 2004, the closing price for the TQ Shares is $1.32 per share (the "TQ SHARE PRICE"). (b) Based on the TQ Share Price, the agreed-upon value of the TQ Shares as of the Closing Date is $1,320,000 (the "INITIAL TQ SHARE VALUE"). (c) Within ten (10) business days of the end of each calendar quarter, beginning with the quarter ended December 31, 2004 (each a "SUPPLEMENTAL TQ SHARE VALUATION DATE"), the Escrow Agent shall update the value of the TQ Shares held in escrow by multiplying the average closing price for the 30 days before the end of the applicable quarter times the number of TQ Shares then held in escrow, and then adding the value of any cash or other assets (valued in the same 4 manner as the TQ Shares, or otherwise at their fair market value) then held in escrow (the "SUPPLEMENTAL TQ SHARE VALUE"). If the Supplemental TQ Share Value exceeds $1,000,000, then either (i) upon the receipt of a written request from Gauld, that number of TQ Shares may be released from escrow to Gauld so that the Supplemental TQ Share Value is approximately $1,000,000, or (ii) upon the mutual consent of Anza and Gauld, Anza shall issue additional shares of Series G Preferred Stock equal to the then-Supplemental TQ Share Value. Notwithstanding the foregoing, however, in the event that any of the TQ Shares have been previously released from escrow pursuant to this Section 4(c) of the Agreement, and the Supplemental TQ Share Value is subsequently less than $1,000,000, then upon the receipt of a written request from Anza, Gauld shall re-deposit that number of TQ Shares (up to the original One Million (1,000,000) TQ Shares), or cash or other assets acceptable to Anza, with the Escrow Agent so that the Supplemental TQ Share Value is approximately $1,000,000. If the Supplemental TQ Share Value is less than $1,000,000, and all of the TQ Shares are already held in escrow, then upon the receipt of a written request from Anza, that number of Anza Shares shall be released from escrow to Anza so that the original issue price of the Anza Shares then held in escrow shall be approximately equal to the Supplement TQ Share Value. If, on a subsequent Supplemental TQ Share Valuation Date, the Supplemental TQ Share Value exceeds $1,000,000, then Anza shall have the choice of re-depositing any withdrawn Anza Shares to bring the Supplemental TQ Share Value back to $1,000,000, or adjusting the number of TQ Shares as set forth above. (d) Notwithstanding the above, Peter Gauld shall be entitled to instruct the Escrow Agent to sell any amount of the TQ Shares held in escrow as long as the total value of TQ Shares and/or cash and/or other assets acceptable to Anza remaining in the escrow account is approximately $1,000,000. 5. RESCISSION: ----------- (a) This Agreement may be rescinded as follows: (i) Upon the receipt of notice by Gauld of any claim or demand, not currently known to them, and whether or not delivered by Anza in compliance with Section 3(f) hereof, that is reasonably likely to have an effect on the First Collateral Bank warehouse facility, the TQ Shares, and/or the Anza Shares then held in escrow, or if Anza fails to make a dividend payment on the Anza Shares within ten (10) days of its due date, or if there is a change in control of Anza, then Gauld may rescind this Agreement. Upon rescission of this Agreement, the Escrow Agent shall return any TQ Shares (or other assets) held in escrow to Gauld, and any Anza Shares held in escrow to Anza. (ii) Anza may rescind this Agreement at any time after the date which is six (6) months after the Closing Date (the "Exclusion Period") by providing thirty (30) days advance written notice to Gauld (the "ANZA TERMINATION NOTICE PERIOD"); however, if Anza rescinds the Agreement during the thirty (30) day period immediately following the Exclusion Period, Anza is 5 limited to rescinding the transaction only with respect to one-half (1/2) of the then-outstanding Anza Shares. The Exclusion Period and the Anza Termination Notice Period is waived for Anza if Gauld exercises a conversion of the Anza Shares. After the expiration of the Anza Termination Notice Period (if applicable), the Escrow Agent shall return any TQ Shares held in escrow to Gauld, and any Anza Shares held in escrow to Anza. (iii) Upon the conversion of all of the outstanding Anza Shares held by Gault or its assigned, this Agreement shall automatically terminate. (iv) In the event of a rescission by either Party, the Gauld's shall be entitled to keep the Anza Warrants as well as any dividends on the Anza Shares, whether paid or accrued at the date of rescission. 6. CONFIDENTIALITY: Each Party hereto will hold and will cause its ---------------- agents, officers, directors, attorneys, employees, consultants and advisors to hold in strict confidence, unless compelled to disclose by judicial or administrative process or, in the opinion of its counsel, by other requirements of law, all documents and information concerning any other Party furnished it by such other Party or its representatives in connection with the subject matter hereof (except to the extent that such information can be shown to have been (i) previously known by the Party to which it was furnished, (ii) in the public domain through no fault of such Party, or (iii) later lawfully acquired from other sources by the Party to which it was furnished), and each Party will not release or disclose such information to any other person, except its auditors, attorneys, financial advisors, bankers and other consultants and advisors in connection with this Agreement. Each Party shall be deemed to have satisfied its obligation to hold confidential information concerning or supplied by the other Party if it exercises the same care as it takes to preserve confidentiality for its own similar information. Notwithstanding the foregoing, the Parties acknowledge that this Agreement shall be discussed in, and will be filed as an exhibit to, Anza's filings with the Securities and Exchange Commission. 7. This Agreement may not be amended, canceled, revoked or otherwise modified except by written agreement subscribed by all of the Parties to be charged with such modification. 8. Any notices to be given hereunder may be effected either by personal delivery in writing, by facsimile, or by overnight mail. Facsimile or overnight mailed notices shall be addressed to the Parties at the addresses listed below. Notices will be deemed communicated as of the date of actual receipt. If to Anza: Anza Capital, Inc. 3200 Bristol Street, Suite 700 Costa Mesa, CA 92626 Attn: Vince Rinehart Facsimile (714) 424-0389 with a copy to: The Lebrecht Group, APLC 22342 Avenida Empresa, Suite 220 6 Rancho Santa Margarita, CA 92688 Attn: Brian A. Lebrecht, Esq. Facsimile (949) 635-1244 If to Gauld: Peter and Irene Gauld 33 Malcom's Mount West Stonehaven AB39 2TF Scotland UK Phone 011 44 1569 762 256 with a copy to: Joseph B. LaRocco, Esq. 49 Locust Avenue, Suite 107 New Canaan, CT 06840 Facsimile (203) 966-0363 9. This Agreement shall be binding upon and shall inure to the benefit of the Parties hereto and their respective partners, employees, agents, servants, heirs, administrators, executors, successors, representatives and assigns. Neither Party may assign its rights, benefits, or obligations under this Agreement without the express written consent of the other Party. 10. All Parties hereto agree to pay their own costs and attorneys' fees except as follows: (a) In the event of any action, suit or other proceeding instituted to remedy, prevent or obtain relief from a breach of this Agreement, arising out of a breach of this Agreement, involving claims within the scope of the releases contained in this Agreement, or pertaining to a declaration of rights under this Agreement, the prevailing Party shall recover all of such Party's reasonable attorneys' fees and costs incurred in each and every such action, suit or other proceeding, including any and all appeals or petitions therefrom. 11. This Agreement and the rights of the parties hereunder shall be governed by and construed in accordance with the laws of the State of California including all matters of construction, validity, performance, and enforcement and without giving effect to the principles of conflict of laws. Venue for any action brought under this Agreement shall be in the appropriate court in Orange County, California. 12. The Parties agree and stipulate that each and every term and condition contained in this Agreement is material, and that each and every term and condition may be reasonably accomplished within the time limitations, and in the manner set forth in this Agreement. 13. The Parties agree and stipulate that time is of the essence with respect to compliance with each and every item set forth in this Agreement. 14. This Agreement, along with the exhibits hereto, sets forth the entire agreement and understanding of the Parties hereto and supersedes any and all prior agreements, arrangements and 7 understandings related to the subject matter hereof. No understanding, promise, inducement, statement of intention, representation, warranty, covenant or condition, written or oral, express or implied, whether by statute or otherwise, has been made by any party hereto which is not embodied in this Agreement or the written statements, certificates, or other documents delivered pursuant hereto or in connection with the transactions contemplated hereby, and no Party hereto shall be bound by or liable for any alleged understanding, promise, inducement, statement, representation, warranty, covenant or condition not so set forth. 15. This Agreement may be executed in one or more counterparts, each of which when executed and delivered shall be an original, and all of which when executed shall constitute one and the same instrument. [remainder of page intentionally left blank; signature page to follow] 8 IN WITNESS WHEREOF, the Parties hereto, agreeing to be bound hereby, execute this Agreement upon the date first set forth above. "ANZA" "GAULD" Anza Capital, Inc., a Nevada corporation /s/ Vince Rinehart /s/ Peter Gauld - ----------------------------------- ----------------------------------- By: Vince Rinehart Peter Gauld Its: President /s/ Irene Gauld ----------------------------------- Irene Gauld 9 EXHIBIT A SERIES G CONVERTIBLE PREFERRED STOCK CERTIFICATE OF DESIGNATION 10 EXHIBIT B ESCROW AGREEMENT 11 EXHIBIT C ANZA WARRANTS 12 EX-10.3 4 doc4.txt EXHIBIT 10.3 ESCROW AGREEMENT This Escrow Agreement (the "Agreement") is dated as of September 17, 2004, by and between Anza Capital, Inc., a Nevada corporation ("Anza"), Peter and Irene Gauld, individuals (collectively referred to as "Gauld"), and Joseph B. LaRocco, Esq. (the "Agent"). Each of Anza and Gauld shall be referred to as a "Party" and collectively as the "Parties." I. Escrow 1.01 Appointment and Acknowledgment of Escrow Agent. Anza and Gauld hereby appoint the Agent, and the Agent hereby agrees to serve, as Escrow Agent pursuant to the terms of this Agreement. The Agent acknowledges, or upon its receipt will acknowledge, receipt of the following: (a) from Anza, Five Hundred Thousand (500,000) shares of Series G Convertible Preferred Stock (the "Anza Shares"), and a warrant to purchase Two Million (2,000,000) shares of common stock (the "Anza Warrants"); and (b) from Gauld, One Million (1,000,000) shares (the "TQ Shares") of common stock of Cash Technologies, Inc. ("TQ"). The properties described in Sections 1.01(a) and 1.01(b) collectively are referred to as the "Escrowed Property." If the Escrowed Property includes property on which dividends are paid, on which interest is earned, or to which other accretions are added, then the dividends, interest, and/or accretions will be sent directly to the registered holder of the Escrowed Property. If the Escrowed Property consists of stock, the registered holder shall exercise all rights and privileges of a stockholder with respect to the shares deposited and held pursuant to this Agreement. 1.02 Operation of Escrow. The Parties hereto agree that the escrow created by this Agreement (the "Escrow") shall operate as follows: (a) Within two (2) business days of the Agent's receipt of the Anza Warrants, the Agent shall deliver the Anza Warrants to Gauld. (b) Upon the receipt of a notice of conversion from Gauld with respect to any number of the Anza Shares, then the Agent shall release that number of Anza Shares so converted to Anza. (c) Upon the receipt of a notice of termination from either Party, notifying the Agent that that certain Securities Exchange Agreement by and between Page 1 of 8 Anza and Gauld has been terminated, the Agent shall release the Escrowed Property then in its possession in accordance with Section 1.02(d) below. (d) Upon the conversion of all of the Anza Shares, or the event described in (c) above,the Agent shall deliver any of the unconverted Anza Shares then in its possession to Anza, and any of the TQ Shares and/or cash from the sale of any TQ Shares or other assets, then in its possession to Gauld, and this Escrow shall terminate. (e) Notwithstanding the above, Peter Gauld shall be entitled to instruct the Escrow Agent to sell any amount of the TQ Shares held in escrow as long as the total value of TQ Shares and/or cash and/or other assets acceptable to Anza remaining in the escrow account is approximately $1,000,000. 1.03 Further Provisions Relating to the Escrow. (a) Distributions by the Agent in accordance with the terms of this Agreement shall operate to divest all right, title, interest, claim, and demand, either at law or in equity, of any party to this Agreement (other than the distributee) in and to the Escrowed Property distributed and shall be a perpetual bar both at law and in equity with respect to such distributed Escrowed Property against the parties to this Agreement and against any person claiming or attempting to claim such distributed escrowed property from, through, or under such party. (b) Anza agrees to reimburse the Agent for the Agent's reasonable fees and other expenses (including legal fees and expenses) incurred by the Agent in connection with its duties hereunder. (c) Anza and Gauld, jointly and severally, agree to indemnify and hold harmless the Agent against and in respect of any and all claims, suits, actions, proceedings (formal or informal), investigations, judgments, deficiencies, damages, settlements, liabilities, and legal and other expenses (including legal counsel fees and expenses of attorneys chosen by the Agent) as and when incurred and whether or not involving a third party arising out of or based upon any act, omissions, alleged act, or alleged omission by the Agent or any other cause, in any case in connection with the acceptance of, or the performance or nonperformance by the Agent of, any of the Agent's duties under this Agreement, except as a result of the Agent's bad faith or gross negligence. The Agent shall be fully protected by acting in reliance upon any notice, advice, direction, other document, or signature believed by the Agent to be genuine, by assuming that any person purporting to give the Agent any notice, advice, direction, or other document in accordance with the provisions hereof, in connection with this Agreement, or in connection with the Agent's duties under this Agreement, has been duly authorized so to do, or by acting or failing to act in good faith on the advice of any counsel retained by the Agent. The Agent shall not be liable for any mistake of fact or of law or any error of judgment, or for any act or any omission, except as a result of the Agent's bad faith or gross negligence. If any of the Escrowed Property is represented by stock certificates, the Agent shall not be liable if the Agent submits all or a portion of the Page 2 of 8 Escrowed Property to be broken into smaller denominations to the appropriate transfer agent, and such transfer agent fails to return properly that portion of the Escrowed Property to the Agent which such transfer agent was instructed to return. (d) The Agent makes no representation as to the validity, value, genuineness, or the collectibility of any security or other document or instrument held by or delivered to the Agent and has not opined on or advised either party of the legality of the proposed transaction or its compliance with applicable state or federal securities laws. Anza and Gauld each represent that they are not being represented by the Agent in a legal capacity concerning the proposed transaction as set forth in the Securities Exchange Agreement and related documents signed by Anza and Gauld and each party has had the opportunity to consult with their own legal advisors prior to the signing of this Agreement. The Agent has acted as legal counsel for Gauld in the past and may act as legal counsel to Gauld in the future, notwithstanding his duties as the Escrow Agent hereunder. Anza consents to the Agent acting as escrow agent pursuant to the terms of this Agreement and waives any claim that past or future representation of Gauld by Joseph B. LaRocco, Esq., even during the term of this Agreement, is a conflict of interest on the part of Joseph B. LaRocco, Esq. Anza and Gauld each understand that Agent is relying explicitly on the foregoing provisions contained in this Section in entering into this Agreement. (e) The Agent shall have no duties or responsibilities except those expressly set forth herein. The Parties hereto agree that the Agent will not be called upon to construe any contract or instrument. The Agent shall not be bound by any notice of a claim, or demand with respect thereto, or any waiver, modification, amendment, termination, cancellation, or revision of this Agreement, unless in writing and signed by the other Parties hereto and received by the Agent and, if the Agent's duties as Escrow Agent hereunder are affected, unless the Agent shall have given its prior written consent thereto. The Agent shall not be bound by any assignment by Anza or by Gauld of its rights hereunder unless the Agent shall have received written notice thereof from the assignor. The Agent is authorized to comply with and obey laws, rules, regulations, orders, judgments, and decrees of any governmental authority, court, or other tribunal. If the Agent complies with any such law, rule, regulation, order, judgment, or decree, the Agent shall not be liable to any of the Parties hereto or to any other person even if such law, rule, order, regulation, judgment, or decree is subsequently reversed, modified, annulled, set aside, vacated, found to have been entered without jurisdiction, or found to be in violation of or beyond the scope of a constitution or a law. (f) If the Agent shall be uncertain as to the Agent's duties or rights hereunder, shall receive any notice, advice, direction, or other document from any other party with respect to the Escrowed Property which, in the Agent's opinion, is in conflict with any of the provisions of this Agreement, or should be advised that a dispute has arisen with respect to the payment, ownership, or right of possession of the Escrowed Property or any part thereof, or the property to be exchanged for the Escrowed Property (or as to the delivery, non-delivery, or content of any notice, advice, direction, or other document), the Agent shall be entitled, without liability to anyone, to refrain from taking Page 3 of 8 any action other than to use the Agent's reasonable efforts to keep safely the Escrowed Property until the Agent shall be directed otherwise in writing by both other parties hereto or by an order, decree, or judgment of a court of competent jurisdiction which has been finally affirmed on appeal or which by lapse of time or otherwise is no longer subject to appeal (a "Final Judgment"), but the Agent shall be under no duty to institute or to defend any proceeding, although the Agent may, in the Agent's discretion and at the expense of Anza and Gauld as provided in Section 1.03(c), institute or defend such proceedings. (g) The Agent (and any successor escrow agent or agents) reserves the right to resign as the Escrow Agent at any time, provided fifteen (15) days' prior written notice is given to the other parties hereto, and provided further that a mutually acceptable successor Escrow Agent(s) is named within such fifteen (15) day period. The Agent may, but is not obligated to, petition any court in the State of Connecticut having jurisdiction to designate a successor Escrow Agent. The resignation of the Agent (and any successor escrow agent or agents) shall be effective only upon delivery of the Escrowed Property to the successor escrow agent(s). The Parties reserve the right to jointly remove the Escrow Agent at any time, provided fifteen (15) days' prior written notice is given to the Escrow Agent. If no successor Escrow Agent has been appointed and has accepted the Escrowed Property within fifteen (15) days after the Notice is sent, all responsibilities of the Agent hereunder shall, nevertheless, case. The Agent's sole responsibility thereafter shall be to use the Agent's reasonable efforts to keep safely the Escrowed Property and to deliver the Escrowed Property as may be directed in writing by both of the other parties hereto or by a Final Judgment. Except as set forth in this Section 1.03(g), this Agreement shall not otherwise be assignable by the Agent without the prior written consent of the other parties hereto. (h) Anza and Gauld authorize the Agent, if the Agent is threatened with litigation or is sued, to interplead all interested parties in any court of competent jurisdiction and to deposit the Escrowed Property with the clerk of that court. (i) The Agent's responsibilities and liabilities hereunder, except as a result of the Agent's own bad faith or gross negligence, will terminate upon the delivery by the Agent of al the Escrowed Property under any provision of this Agreement. (j) As consideration for acting as escrow agent hereunder, Anza shall pay, in advance and as a condition precedent to the establishment of the Escrow pursuant to the terms of this Agreement, a fee of $6,000.00. This fee shall be deemed to have been earned in full by the Agent upon establishment of the Escrow, and shall not be subject to pro-ration or other setoff in the event the Escrow is terminated by any party. In the event the term of the Escrow goes beyond 12 months then in such event Anza and Agent shall mutually agree upon what additional amount shall be paid to Agent at the end of the 12 month period. Page 4 of 8 II. Miscellaneous 2.01 Further Action. At any time and from time to time, Anza and Gauld each agrees, at its own expense, to take such actions and to execute and deliver such documents as may be reasonably necessary to effectuate the purposes of this Agreement. If any portion of the Escrowed Property consists of stock certificates, Anza shall pay any transfer tax arising out of the placing of the Escrowed Property into the Escrow, the delivery of the Escrowed Property out of the Escrow, or the transfer of the Escrowed Property into the name of any person or entity pursuant to the terms of this Agreement. The Agent shall have no liability regarding transfer taxes even if one or both of the Parties hereto fails to comply with the obligations set forth in the prior sentence. 2.02 Survival. Subject to Section 1.03(i), the covenants, agreements, representations, and warranties contained in or made pursuant to this Agreement shall survive the delivery by the Agent of the Escrowed Property, irrespective of any investigation made by or on behalf of any party. 2.03 Modification. This Agreement sets forth the entire understanding of the parties with respect to the subject matter hereof, supersedes all existing agreements among them concerning such subject matter, and (subject to Section 1.03(e)) may be modified only by a written instrument duly executed by each party. 2.04 Notices. Any notice, advice, direction, or other document or communication required or permitted to be given hereunder shall be in writing and shall be mailed by certified mail, return receipt requested, or by Federal Express, Express Mail, or similar overnight delivery or courier service or delivered (in person or by facsimile) against receipt to the party to whom it is to be given at address of such party set forth below (or to such other address as the party shall have furnished in writing in accordance with the provisions of this Section 2.04) with a copy to each of the other parties hereto: If to Anza: Anza Capital, Inc. 3200 Bristol Street, Suite 700 Costa Mesa, CA 92626 Attn: Vince Rinehart Facsimile (714) 424-0389 with a copy to: The Lebrecht Group, APLC 22342 Avenida Empresa, Suite 220 Page 5 of 8 Rancho Santa Margarita, CA 92688 Attn: Brian A. Lebrecht, Esq. Facsimile (949) 635-1244 If to Gauld: Peter and Irene Gauld 33 Malcom's Mount West Stonehaven AB39 2TF Scotland UK Phone 011 44 1569 762 256 If to Agent: Joseph B. LaRocco, Esq. 49 Locust Avenue Suite 107 New Canaan, CT Phone 203-966-0566 Facsimile 203-966-0363 Any notice, advice, direction, or other document or communication given by certified mail shall be deemed given at the time of receipt thereof. Any notice given by other means permitted by this Section 2.04 shall be deemed given at the time of receipt thereof. 2.05 Waiver. Any waiver by any party of a breach of any provision of this Agreement shall not operate as or be construed to be a waiver of any other breach of that provision or of any breach of any other provision of this Agreement. The failure of a party to insist upon strict adherence to any term of this Agreement on one or more occasions shall not be considered a waiver or deprive that party of the right thereafter to insist upon strict adherence to that term or any other term of this Agreement. Any waiver must be in writing. 2.06 Binding Effect. Subject to Section 1.03(g), the provisions of this Agreement shall be binding upon and inure to the benefit of Anza and Gauld and their respective assigns, heirs, and personal representatives, and shall be binding upon and insure to the benefit of the Agent and the Agent's successors and assigns. 2.07 No Third Party Beneficiaries. This Agreement does not create, and shall not be construed as creating, any rights enforceable by any person not a party to this Agreement (except as provided in Section 2.06). Page 6 of 8 2.08 Jurisdiction. The parties hereby irrevocably consent to the jurisdiction of the courts of the State of Connecticut and of any federal court located in such State in connection with any action or proceeding arising out of or relating to this Agreement, and document or instrument delivered pursuant to, in connection with, or simultaneously with this Agreement, a breach of this Agreement or of any such document or instrument, or the Escrowed Property. 2.09 Separability. This entire Agreement shall be void if any provision of this Agreement other than the second and third sentences of Section 2.11 is invalid, illegal, unenforceable, or inapplicable to any person or circumstance to which it is intended to be applicable, except that the provisions of Section 1.03 shall survive. 2.10 Headings. The headings in this Agreement are solely for convenience of reference and shall be given no effect in the construction or interpretation of this Agreement. 2.11 Counterparts; Governing Law. This Agreement may be executed in any number of counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. An executed facsimile counterpart of this Agreement shall be effective as an original. It shall be governed by and construed in accordance with the laws of the State of Connecticut without giving effect to conflict of laws. Any action, suit, or proceeding arising out of, based on, or in connection with this Agreement , any document or instrument delivered pursuant to, in connection with, or simultaneously with this Agreement, any breach of this Agreement or any such document or instrument, or any transaction contemplated hereby or thereby may be brought only in the appropriate court in Fairfield County, Connecticut, and each party covenants and agrees not to assert, by way of motion, as a defense, or otherwise, in any such action, suit, or proceeding, any claim that such party is not subject personally to the jurisdiction of such court, that such party's property is exempt or immune from attachment or execution, that the action, suit, or proceeding is brought in an inconvenient forum, that the venue of the action, suit, or proceeding is improper, or that this Agreement or the subject matter hereof may not be enforced in or by such court. Page 7 of 8 IN WITNESS WHEREOF, the Parties have duly executed this Agreement as of the date first written above. "Anza" "Gauld" Anza Capital, Inc., a Nevada corporation /s/ Vince Rinehart /s/ Peter Gauld - ------------------------------------ ------------------------------------ By: Vince Rinehart Peter Gauld Its President /s/ Irene Gauld ------------------------------------ Irene Gauld "Agent" /s/ Joseph B. LaRocco, Esq. - ------------------------------------ By: Joseph B. LaRocco, Esq. Page 8 of 8 EX-10.4 5 doc5.txt EXHIBIT 10.4 THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED ("THE ACT"), OR THE SECURITIES LAWS OF ANY STATE, AND MAY NOT BE OFFERED, SOLD, TRANSFERRED, PLEDGED, HYPOTHECATED OR OTHERWISE DISPOSED OF EXCEPT PURSUANT TO (i) AN EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT AND ANY APPLICABLE STATE LAWS, (ii) TO THE EXTENT APPLICABLE, RULE 144 UNDER THE ACT (OR ANY SIMILAR RULE UNDER THE ACT RELATING TO THE DISPOSITION OF SECURITIES), OR (iii) AN OPINION OF COUNSEL, IF SUCH OPINION SHALL BE REASONABLY SATISFACTORY TO COUNSEL TO THE ISSUER, THAT AN EXEMPTION FROM REGISTRATION UNDER THE ACT AND APPLICABLE STATE LAW IS AVAILABLE. WARRANT Anza Capital, Inc. (Incorporated under the laws of the State of Nevada) THIS IS TO CERTIFY that, for value received, Peter and Irene Gauld (collectively, the "Holder") is entitled, subject to the terms and conditions set forth herein, to purchase from Anza Capital, Inc., a Nevada corporation (the "Company") up to Two Million (2,000,000) fully paid and nonassessable shares of common stock of the Company (the "Warrant Securities") at the exercise price set forth in Section 1 below, (the "Exercise Price"). 1. EXERCISABILITY. This Warrant may be exercised in whole or in part (subject to the limitation in Section 3) at any time, or from time to time, between the date hereof until 5:00 p.m. Pacific Time on the date which is five (5) years from the date hereof, by presentation and surrender hereof to the Company of a notice of election to purchase duly executed and accompanied by payment by of the Exercise Price. The Exercise Price for each share of common stock of the Company shall be $0.10 per share. 2. MANNER OF EXERCISE. In case of the purchase of less than all the Warrant Securities, the Company shall cancel this Warrant upon the surrender hereof and shall execute and deliver a new warrant of like tenor for the balance of the Warrant Securities. Upon the exercise of this Warrant, the issuance of certificates for securities, properties or rights underlying this Warrant shall be made forthwith (and in any event within ten (10) business days thereafter) without charge to the Holder including, without limitation, any tax that may be payable in respect of the issuance thereof: provided, however, that the Company shall not be required to pay any tax in respect of income or capital gain of the Holder. If and to the extent this Warrant is exercised, in whole or in part, the Holder shall be entitled to receive a certificate or certificates representing the Warrant Securities so purchased, upon presentation and surrender to the Company of the form of election to purchase attached hereto duly executed, and accompanied by payment of the purchase price. Page 1 of 6 3. Adjustment in Number of Shares. (A) Adjustment for Reclassifications. In case at any time or from time to time after the issue date the holders of the Common Stock of the Company (or any shares of stock or other securities at the time receivable upon the exercise of this Warrant) shall have received, or, on or after the record date fixed for the determination of eligible stockholders, shall have become entitled to receive, without payment therefore, other or additional stock or other securities or property (including cash) by way of stock split, spin-off, reclassification, combination of shares or similar corporate rearrangement (exclusive of any stock dividend of its or any subsidiary's capital stock), then and in each such case the Holder of this Warrant, upon the exercise hereof as provided in Section 1, shall be entitled to receive the amount of stock and other securities and property which such Holder would hold on the date of such exercise if on the issue date he had been the holder of record of the number of shares of Common Stock of the Company called for on the face of this Warrant and had thereafter, during the period from the issue date, to and including the date of such exercise, retained such shares and/or all other or additional stock and other securities and property receivable by him as aforesaid during such period, giving effect to all adjustments called for during such period. In the event of any such adjustment, the Exercise Price shall be adjusted proportionally. (B) Adjustment for Reorganization, Consolidation, Merger. In case of any reorganization of the Company (or any other corporation the stock or other securities of which are at the time receivable on the exercise of this Warrant) after the issue date, or in case, after such date, the Company (or any such other corporation) shall consolidate with or merge into another corporation or convey all or substantially all of its assets to another corporation, then and in each such case the Holder of this Warrant, upon the exercise hereof as provided in Section 1 at any time after the consummation of such reorganization, consolidation, merger or conveyance, shall be entitled to receive, in lieu of the stock or other securities or property to which such Holder would be entitled had the Holder exercised this Warrant immediately prior thereto, all subject to further adjustment as provided herein; in each such case, the terms of this Warrant shall be applicable to the shares of stock or other securities or property receivable upon the exercise of this Warrant after such consummation. 4. NO REQUIREMENT TO EXERCISE. Nothing contained in this Warrant shall be construed as requiring the Holder to exercise this Warrant prior to or in connection with the effectiveness of a registration statement. 5. NO STOCKHOLDER RIGHTS. Unless and until this Warrant is exercised, this Warrant shall not entitle the Holder hereof to any voting rights or other rights as a stockholder of the Company, or to any other rights whatsoever except the rights herein expressed, and, no dividends shall be payable or accrue in respect of this Warrant. 6. EXCHANGE. This Warrant is exchangeable upon the surrender hereof by the Holder to the Company for new warrants of like tenor representing in the aggregate the right to purchase the number of Warrant Securities purchasable hereunder, each of such new warrants to represent the right to purchase such number of Warrant Securities as shall be designated by the Holder at the time of such surrender. Page 2 of 6 Upon receipt by the Company of evidence reasonably satisfactory to it of the loss, theft, destruction or mutilation of this Warrant, and, in case of loss, theft or destruction, of indemnity or security reasonably satisfactory to it and reimbursement to the company of all reasonable expenses incidental thereto, and upon surrender and cancellation hereof, if mutilated, the Company will make and deliver a new warrant of like tenor and amount, in lieu hereof. 7. ELIMINATION OF FRACTIONAL INTERESTS. The Company shall not be required to issue certificates representing fractions of securities upon the exercise of this Warrant, nor shall it be required to issue scrip or pay cash in lieu of fractional interests. All fractional interests shall be eliminated by rounding any fraction up to the nearest whole number of securities, properties or rights receivable upon exercise of this Warrant. 8. RESERVATION OF SECURITIES. The Company shall at all times reserve and keep available out of its authorized shares of Common Stock or other securities, solely for the purpose of issuance upon the exercise of this Warrant, such number of shares of Common Stock or other securities, properties or rights as shall be issuable upon the exercise hereof. The Company covenants and agrees that, upon exercise of this Warrant and payment of the exercise price, all shares of Common Stock and other securities issuable upon such exercise shall be duly and validly issued, fully paid, non-assessable and not subject to the preemptive rights of any stockholder. 9. NOTICES TO HOLDER. If at any time prior to the expiration of this Warrant or its exercise, any of the following events shall occur: (a) the Company shall take a record of the holders of any class of its securities for the purpose of entitling them to receive a dividend or distribution payable otherwise than in cash, or a cash dividend or distribution payable otherwise than out of current or retained earnings, as indicated by the accounting treatment of such dividend or distribution on the books of the Company; or (b) the Company shall offer to all the holders of a class of its securities any additional shares of capital stock of the Company or securities convertible into or exchangeable for shares of capital stock of the Company, or any option or warrant to subscribe therefor; or (c) a dissolution, liquidation or winding up of the Company (other than in connection with a consolidation or merger) or a sale of all or substantially all of its property, assets and business as an entirety shall be proposed. then, in any one or more said events, the Company shall give written notice of such event to the Holder at least fifteen (15) days prior to the date fixed as a record date or the date of closing the transfer books for the determination of the stockholder entitled to such dividend, distribution, convertible or exchangeable securities or subscription rights, or entitled to vote on such proposed dissolution, liquidation, winding up or sale. Such notice shall specify such record date or the date of closing the transfer books, as the case may be. Page 3 of 6 10. TRANSFERABILITY. This Warrant may be transferred or assigned by the Holder at any time, and Holder agrees to provide notice to the Company immediately of any such transfer or assignment. 11. INFORMATIONAL REQUIREMENTS. The Company will transmit to the Holder such information, documents and reports as are generally distributed to stockholders of the Company concurrently with the distribution thereof to such stockholders. 12. NOTICE. Notices to be given to the Company or the Holder shall be deemed to have been sufficiently given if delivered personally or sent by overnight courier or messenger, or by facsimile transmission. Notices shall be deemed to have been received on the date of personal delivery or facsimile transmission. The address of the Company and of the Holder shall be as set forth in the Company's books and records. 13. CONSENT TO JURISDICTION AND SERVICE. The Company consents to the jurisdiction of any court of the State of California, and of any federal court located in California, in any action or proceeding arising out of or in connection with this Warrant. The Company waives personal service of any summons, complaint or other process in connection with any such action or proceeding and agrees that service thereof may be made, by certified mail directed to the Company at the location provided in Section 12 hereof, or, in the alternative, in any other form or manner permitted by law. Orange County, California shall be proper venue. 14. SUCCESSORS. All the covenants and provisions of this Warrant shall be binding upon and inure to the benefit of the Company, the Holder and their respective legal representatives, successors and assigns. 15. ATTORNEYS FEES. In the event the Holder or any holder hereof shall refer this Warrant to an attorney to enforce the terms hereof, the Company agrees to pay all the costs and expenses incurred in attempting or effecting collection hereunder, including reasonable attorney's fees, whether or not suit is instituted. 16. GOVERNING LAW. THIS WARRANT SHALL BE GOVERNED, CONSTRUED AND INTERPRETED UNDER THE LAWS OF THE STATE OF CALIFORNIA, WITHOUT GIVING EFFECT TO THE RULES GOVERNING CONFLICTS OF LAW. 17. REGISTRATION RIGHTS. (a) Piggyback Registration Rights. If Anza at any time proposes to conduct an offering of its securities so as to register any of its securities under the Securities Act of 1933 (the "Act"), including under an S-1 Registration Statement or otherwise, it will at such time give written notice to Holder, or its assigns, of its intention so to do. Upon the written request of Holder, or assigns, given within 10 days after receipt of any such notice, Anza will use its best efforts to cause the Warrant Securities to be registered under the Act (with the securities which Anza at the time proposes to register). Page 4 of 6 (b) Demand Registration Rights. At any time after the date which is ninety (90) days from the date hereof, and with thirty one (31) days advance notice, the Holder may demand that the Company prepare and file a registration statement to register the resale of the Warrant Securities. The Holder shall pay all expenses of a registration statement which it demands, such payment to be made directly to legal counsel for Anza and in advance or in accordance with normal billing practices. Upon effectiveness of the registration statement, Anza will issue to Holder that number of shares of Anza common stock equal to the total amount of registration expenses paid by the Holder divided by the lesser of $0.10 or the five (5) day average closing bid price per share on the date of issuance. (c) The registration rights set forth herein will terminate upon such time as the Warrant Securities may be resold without regard to volume limitations under Rule 144 promulgated under the Act. IN WITNESS WHEREOF, the Company has caused this Warrant to be executed by the signature of its President and to be delivered in Santa Ana, California. Dated: September 17, 2004 Anza Capital, Inc., a Nevada corporation /s/ Vincent Rinehart ------------------------------- By: Vincent Rinehart Its: President Page 5 of 6 [FORM OF ELECTION TO PURCHASE] The undersigned, the holder of the attached Warrant, hereby irrevocably elects to exercise the purchase right represented by this Warrant Certificate for, and to purchase securities of Anza Capital, Inc. and herewith makes payment of $___________, and requests that the certificates for such securities be issued in the name of, and delivered to _______________________, whose address is _________________________________________. Dated: ____________________, 20___ _________________________________ By: _____________________________ (Signature must conform in all respects to name of holder as specified on the face of the Warrant Certificate) ____________________________________________ (Insert Social Security or Other Identifying Number of Holder) Page 6 of 6 EX-10.5 6 doc6.txt EXHIBIT 10.5 GUNNALLEN FINANCIAL - --------- 1715 N. WESTSHORE BLVD. SUITE 700 TAMPA, FLORIDA 33607 November 25, 2003 MR. VINCE RINEHART ,CHAIRMAN &CEO ANZA CAPITAL INC. 3200 BRISTOL ST. SUITE 700 COSTA MESA, CA 92626 VIA E-MAIL: VINCE@AMRES.NET Dear Vince: This letter confirms the engagement of GunnAllen Financial ("GAF") as non-exclusive financial advisor to Anza Capital Inc., and its subsidiaries and affiliates (together, the "Company") for a period of twelve (12) months commencing upon your acceptance of this letter. The engagement will have an automatic 12-month extension unless 30 day written notice of cancellation is provided by the Company to GAF prior to November 14, 2004. In this regard, the parties agree to the following terms and conditions: 1. Engagement. The Company hereby engages and retains GAF as a financial ---------- advisor for and on behalf of the Company to perform the Services as defined in Section 2, "Services." GAF hereby accepts this engagement on the terms and conditions set forth in this agreement. 2. Services. In connection with its engagement pursuant to this -------- agreement, GAF agrees to perform the following services for the Company: a. Consulting Services. As requested from time to time by the Company, GAF shall provide financial consulting services and advice to the Company pertaining to the Company's business affairs. Without limiting the foregoing, GAF will assist the Company in developing, studying and evaluating a financing plan, strategic and financial alternatives, and merger and acquisition proposals and will assist in negotiations and discussions pertaining thereto. Additionally, GAF will assist the Company in preparing presentation materials d escribing the Company, its operations, its historical performance and future prospects. GAF will also provide such other financial advisory and investment banking services as may be mutually agreed upon by GAF and the Company. 3. Best Efforts. In conjunction with its engagement, GAF agrees to use ------------- its best efforts to: a. make itself available to the Company's officers, at such mutually agreed upon place and time during normal business hours for reasonable periods of time for the purpose of advising and assisting the Company in preparing reports, summaries, corporate and/or transaction profiles, due diligence packages and/or other material and documentation as shall be necessary, in the opinion of GAF, to properly present the Company as an investment opportunity to Candidates. Such availability will be subject to reasonable advance notice and mutually convenient scheduling. b. aid and assist the Company's management in structuring the nature, extent and other corporate finance parameters to procure on behalf of the Company to fulfill its business objectives. c. make itself available for telephone conferences with the Company's principal financial sales and/or operating officers during normal business hours upon reasonable advance notice and mutually agreed upon dates and times. d. evaluate proposals and participate in negotiations with Candidates. e. perform such other corporate financing, investment banking, and similar advisory services related to a Candidate and/or such other aspects of the Company's operations, management or development as the Company's principal executive, financial, sales and/or operating officer(s) may reason ably request consistent with the provisions of this Agreement. 4. Compensation: As compensation for the services rendered by GAF to the ------------ Company pursuant to this agreement and in addition to the expense allowance set forth in Section 6 ("Expenses") below, the Company shall pay to GAF as set forth below: Advisory Services: A fee of $35,000 due upon execution of this agreement, payment however deferred until the completion of a capital raise and a monthly fee of $12,000, $6,000 of which shall be payable monthly in cash from the date of execution hereof and $6,000 per month of which shall be deferred until the earlier of the signing of Definitive Agreement between American Gold and Anza Capital being executed, or Page 2 of 5 the completion of a capital raise, commencing November 25, 2003 and continuing monthly thereafter. Additionally, within ten business days following the execution of this Advisory Agreement, the Company shall issue to GAF a warrant exercisable for a period of five years to acquire 5% (five percent) of the Company's fully diluted common stock at a price of $.50 per share, cash exercise. All common underlying the warrants will have standard piggy-back registration rights to include the resale of the shares in the Company's very next registration statement filed with the Securities and Exchange Commission. Said warrant shall contain standard adjustment provisions and anti-dilution protection in the event of a split, or re-capitalization of the company. The warrant will be delivered within 10 business days of signing this agreement. One percent of the warrants shall vest at signing of this agreement and each additional one percent of the warrants shall vest at the rate of one percent for each $1.25 million of new capital raised. 5. Other Terms and Conditions: --------------------------- a. If GAF serves as a placement agent for the issuance and sale of any securities on behalf of the Company or arranges any other type of financing, GAF and the Company will enter into a formal agreement on terms to be mutually agreed uponAll fees associated with a capital raise for the Company will be detailed in a formal letter of intent and said fees will not exceed a 10% cash commission, 3% non-accountable, and the grant of warrants to purchase a number of shares equal to 10% of the shares (or shares issuable upon conversion of convertible securities) upon such terms as are substantially the same as those securities sold to investors, including exercise price and registration rights, but shall include provisions for cashless exercise. b. For a period of twenty-four (24) months following successful procurement of a funding for the Company by or through the efforts of GAF, GAF shall be granted a right of first refusal to provide follow on funding, including any private or public offerings of securities. 6. Expenses. In addition to the compensation in Section 4, "Compensation" -------- above, The Company agrees to reimburse GAF, upon request made from time to time, for its reasonable out-of-pocket expenses incurred by GAF in connection with its activities under this agreement. On a monthly basis, any expenses greater than ($1,000.00) one thousand dollars will be pre-approved in advance by the Company and may include but are not limited to long distance phone charges, airfare, hotel lodging and meals, transportation, outside consultants, printing, and overnight express mail incurred by GAF in fulfilling its duties under this agreement. Page 3 of 5 6. Indemnification. The Company and GAF, and each of them, hereby agrees ---------------- to indemnify the other party and its affiliates and their respective directors, officers, employees, agents and controlling persons (each such person being an "Indemnified Party") from and against any and all losses, claims, damages and liabilities, joint or several, related to or arising out of any Business Combination, or the engagement of GAF pursuant to, and the performance by GAF of the services contemplated by, this agreement and will reimburse any Indemnified Party for all expenses (including fees and costs of counsel) as they are incurred in connection with the investigation of , preparation for or defense of any pending or threatened claim or any action or proceeding arising therefrom, whether or not such Indemnified Party is a party and whether or not such claim, action or proceeding is initiated or brought by or on behalf of GFA or the Company. If the indemnification of an Indemnified Party provided for in this agreement is for any reason held unenforceable, the other party agrees to contribute to the losses, claims, damages and liabilities for which such indemnification is held unenforceable is such proportion as is appropriate to reflect the relative benefits to the Company, on the one hand, and GAF, on the other hand; provided, however, that in no event shall the Indemnified Parties be required to contribute an aggregate amount in excess of the aggregate fees actually paid to GAF under this agreement. The parties agree that they will not settle, compromise or consent to the entry of any judgment in any pending or threatened claim, action or proceeding in respect of which indemnification could be sought under the indemnification provision of this agreement (whether or not any other Indemnified Party is an actual or potential party to such claim, action or proceeding), unless such settlement, compromise or consent includes an unconditional release of each Indemnified Party from all liability arising out of such claim, action or proceeding. 7. Intentionally left blank. 8. Independent Contractor. The Company acknowledges that GAF has been ----------------------- retained to act solely as a financial advisor to the Company. In such capacity, GAF shall act as an independent contractor, and any duties of GAF arising out of its engagement pursuant to this agreement shall be owed solely to the Company. 9. Governing Law. This agreement shall be governed by and construed in -------------- accordance with the laws of the State of Florida, excluding the laws of those jurisdictions pertaining to the resolution of conflicts with the laws of other jurisdictions. Page 4 of 5 10. Term and Termination. This Agreement shall be effective upon its --------------------- execution and shall remain in effect for twelve (12) months from the date hereof. After 90 days has passed from initial signing of this agreement, the Company or GAF may terminate GAF's engagement and responsibilities hereunder with 30 day written notice at any time. However, no termination of this Agreement shall in any way effect the right of GAF to receive any of the fees due up thru the 30 days post notice of cancellation of this agreement or unbilled disbursements for the services rendered hereunder. In addition, Section 6, "Indemnification," Section 8, "Independent Contractor," and Section 9, "Governing Law" shall survive any termination of this Agreement. Sincerely, /s/ Norman K. Farra ------------------------------- Norman K. Farra Managing Director Agreed and Accepted on behalf of the Company. /s/ Vincent Rinehart - -------------------------------------- ------------ Vincent Rinehart Date Chairman and CEO Page 5 of 5 EX-10.6 7 doc7.txt EXHIBIT 10.6 GUNNALLEN FINANCIAL - --------- 1715 N. WESTSHORE BLVD. SUITE 700 TAMPA, FLORIDA 33607 September 3, 2004 Mr. Vincent Rinehart, Chairman & CEO Anza Capital Inc. 3200 Bristol St. Suite 700 Costa Mesa, CA 92626 VIA E-MAIL: VINCE@AMRES.NET Re: ADDENDUM to November 25, 2003 Advisory Agreement Dear Vince, Pursuant to our the Advisory Agreement between Anza Capital, Inc. (AZAC) and GunnAllen Financial, Inc. (GAF) date November 25, 2003 please confirm the below changes to the agreement. From this date forward the monthly fee to GAF will be $12,000. The first monthly payment under this addendum will be due on September 25, 2004 with payments made the 25th of each of the following eleven months. The term of the agreement will extend to the earlier of a non-cancelable period of one year (new expiration date will be November 25, 2005) or 30 days post notice of the collateral to be withdrawn which GunnAllen's client provided. As additional compensation AZAC will issue to GAF a warrant for 200,000 shares of AZAC common stock with a strike price of $.10 per share which will have piggy back registration rights for the very next registration made by AZAC as well as a demand registration right covering all the shares underlying the warrants at the holders expense. The warrant will be issued immediately and the warrants will have a five-year term. Any delay in the monthly payment will require an ongoing 10% increase in the monthly cash payment (additional $1,200 per month) as well as an additional 10% in warrants (20,000 warrants issued immediately) for every instance payment is not received by the 10th of each month. Prior to moving forward, AZAC must also have the original warrant for 5% of the fully diluted shares issued per paragraph (4) of the original agreement dated November 25, 2003 by and between GunnAllen Financial Inc. and Anza Capital, Inc. The parties hereby 1 of 2 agree to amend the warrant from the original agreement to a total of 250,000 warrants with a strike price of $ .25 per share. The parties understand that this is a non cash transfer, however, Anza Capital Inc. agrees to vest the 2nd one percent (now 100,000 fully vested) of the aforementioned 250,000 warrants to be issued per the above amendment to the original agreement at the new strike price of $.25 in lieu of the fact that the average market value of the collateral provided over the last 30 days was $1,250,000. Agreed and Accepted by: /s/ Norman K. Farra /s/ Vincent Rinehart - ----------------------------------- ----------------------------- Norman K. Farra, Managing Director Vincent Rinehart, CEO GunnAllen Financial Anza Capital, Inc. - ---------------- ------------------- Dated Dated 2 of 2 EX-10.7 8 doc8.txt EXHIBIT 10.7 THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED ("THE ACT"), OR THE SECURITIES LAWS OF ANY STATE, AND MAY NOT BE OFFERED, SOLD, TRANSFERRED, PLEDGED, HYPOTHECATED OR OTHERWISE DISPOSED OF EXCEPT PURSUANT TO (i) AN EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT AND ANY APPLICABLE STATE LAWS, (ii) TO THE EXTENT APPLICABLE, RULE 144 UNDER THE ACT (OR ANY SIMILAR RULE UNDER THE ACT RELATING TO THE DISPOSITION OF SECURITIES), OR (iii) AN OPINION OF COUNSEL, IF SUCH OPINION SHALL BE REASONABLY SATISFACTORY TO COUNSEL TO THE ISSUER, THAT AN EXEMPTION FROM REGISTRATION UNDER THE ACT AND APPLICABLE STATE LAW IS AVAILABLE. WARRANT Anza Capital, Inc. (Incorporated under the laws of the State of Nevada) THIS IS TO CERTIFY that, for value received, GunnAllen Financial, Inc. (collectively, the "Holder") is entitled, subject to the terms and conditions set forth herein, to purchase from Anza Capital, Inc., a Nevada corporation (the "Company") up to Two Hundred Thousand (200,000) fully paid and nonassessable shares of common stock of the Company (the "Warrant Securities") at the exercise price set forth in Section 1 below, (the "Exercise Price"). 1. EXERCISABILITY. This Warrant may be exercised in whole or in part (subject to the limitation in Section 3) at any time, or from time to time, between the date hereof until 5:00 p.m. Pacific Time on the date which is five (5) years from the date hereof, by presentation and surrender hereof to the Company of a notice of election to purchase duly executed and accompanied by payment by of the Exercise Price. The Exercise Price for each share of common stock of the Company shall be $0.10 per share. 2. MANNER OF EXERCISE. In case of the purchase of less than all the Warrant Securities, the Company shall cancel this Warrant upon the surrender hereof and shall execute and deliver a new warrant of like tenor for the balance of the Warrant Securities. Upon the exercise of this Warrant, the issuance of certificates for securities, properties or rights underlying this Warrant shall be made forthwith (and in any event within ten (10) business days thereafter) without charge to the Holder including, without limitation, any tax that may be payable in respect of the issuance thereof: provided, however, that the Company shall not be required to pay any tax in respect of income or capital gain of the Holder. If and to the extent this Warrant is exercised, in whole or in part, the Holder shall be entitled to receive a certificate or certificates representing the Warrant Securities so purchased, upon presentation and surrender to the Company of the form of election to purchase attached hereto duly executed, and accompanied by payment of the purchase price. Page 1 of 6 3. Adjustment in Number of Shares. (A) Adjustment for Reclassifications. In case at any time or from ---------------------------------- time to time after the issue date the holders of the Common Stock of the Company (or any shares of stock or other securities at the time receivable upon the exercise of this Warrant) shall have received, or, on or after the record date fixed for the determination of eligible stockholders, shall have become entitled to receive, without payment therefore, other or additional stock or other securities or property (including cash) by way of stock split, spin-off, reclassification, combination of shares or similar corporate rearrangement (exclusive of any stock dividend of its or any subsidiary's capital stock), then and in each such case the Holder of this Warrant, upon the exercise hereof as provided in Section 1, shall be entitled to receive the amount of stock and other securities and property which such Holder would hold on the date of such exercise if on the issue date he had been the holder of record of the number of shares of Common Stock of the Company called for on the face of this Warrant and had thereafter, during the period from the issue date, to and including the date of such exercise, retained such shares and/or all other or additional stock and other securities and property receivable by him as aforesaid during such period, giving effect to all adjustments called for during such period. In the event of any such adjustment, the Exercise Price shall be adjusted proportionally. (B) Adjustment for Reorganization, Consolidation, Merger. In case of ------------------------------------------------------ any reorganization of the Company (or any other corporation the stock or other securities of which are at the time receivable on the exercise of this Warrant) after the issue date, or in case, after such date, the Company (or any such other corporation) shall consolidate with or merge into another corporation or convey all or substantially all of its assets to another corporation, then and in each such case the Holder of this Warrant, upon the exercise hereof as provided in Section 1 at any time after the consummation of such reorganization, consolidation, merger or conveyance, shall be entitled to receive, in lieu of the stock or other securities or property to which such Holder would be entitled had the Holder exercised this Warrant immediately prior thereto, all subject to further adjustment as provided herein; in each such case, the terms of this Warrant shall be applicable to the shares of stock or other securities or property receivable upon the exercise of this Warrant after such consummation. 4. NO REQUIREMENT TO EXERCISE. Nothing contained in this Warrant shall be construed as requiring the Holder to exercise this Warrant prior to or in connection with the effectiveness of a registration statement. 5. NO STOCKHOLDER RIGHTS. Unless and until this Warrant is exercised, this Warrant shall not entitle the Holder hereof to any voting rights or other rights as a stockholder of the Company, or to any other rights whatsoever except the rights herein expressed, and, no dividends shall be payable or accrue in respect of this Warrant. 6. EXCHANGE. This Warrant is exchangeable upon the surrender hereof by the Holder to the Company for new warrants of like tenor representing in the aggregate the right to purchase the number of Warrant Securities purchasable hereunder, each of such new warrants to represent the right to purchase such number of Warrant Securities as shall be designated by the Holder at the time of such surrender. Page 2 of 6 Upon receipt by the Company of evidence reasonably satisfactory to it of the loss, theft, destruction or mutilation of this Warrant, and, in case of loss, theft or destruction, of indemnity or security reasonably satisfactory to it and reimbursement to the company of all reasonable expenses incidental thereto, and upon surrender and cancellation hereof, if mutilated, the Company will make and deliver a new warrant of like tenor and amount, in lieu hereof. 7. ELIMINATION OF FRACTIONAL INTERESTS. The Company shall not be required to issue certificates representing fractions of securities upon the exercise of this Warrant, nor shall it be required to issue scrip or pay cash in lieu of fractional interests. All fractional interests shall be eliminated by rounding any fraction up to the nearest whole number of securities, properties or rights receivable upon exercise of this Warrant. 8. RESERVATION OF SECURITIES. The Company shall at all times reserve and keep available out of its authorized shares of Common Stock or other securities, solely for the purpose of issuance upon the exercise of this Warrant, such number of shares of Common Stock or other securities, properties or rights as shall be issuable upon the exercise hereof. The Company covenants and agrees that, upon exercise of this Warrant and payment of the exercise price, all shares of Common Stock and other securities issuable upon such exercise shall be duly and validly issued, fully paid, non-assessable and not subject to the preemptive rights of any stockholder. 9. NOTICES TO HOLDER. If at any time prior to the expiration of this Warrant or its exercise, any of the following events shall occur: (a) the Company shall take a record of the holders of any class of its securities for the purpose of entitling them to receive a dividend or distribution payable otherwise than in cash, or a cash dividend or distribution payable otherwise than out of current or retained earnings, as indicated by the accounting treatment of such dividend or distribution on the books of the Company; or (b) the Company shall offer to all the holders of a class of its securities any additional shares of capital stock of the Company or securities convertible into or exchangeable for shares of capital stock of the Company, or any option or warrant to subscribe therefor; or (c) a dissolution, liquidation or winding up of the Company (other than in connection with a consolidation or merger) or a sale of all or substantially all of its property, assets and business as an entirety shall be proposed. then, in any one or more said events, the Company shall give written notice of such event to the Holder at least fifteen (15) days prior to the date fixed as a record date or the date of closing the transfer books for the determination of the stockholder entitled to such dividend, distribution, convertible or exchangeable securities or subscription rights, or entitled to vote on such proposed dissolution, liquidation, winding up or sale. Such notice shall specify such record date or the date of closing the transfer books, as the case may be. Page 3 of 6 10. TRANSFERABILITY. This Warrant may be transferred or assigned by the Holder at any time, and Holder agrees to provide notice to the Company immediately of any such transfer or assignment. 11. INFORMATIONAL REQUIREMENTS. The Company will transmit to the Holder such information, documents and reports as are generally distributed to stockholders of the Company concurrently with the distribution thereof to such stockholders. 12. NOTICE. Notices to be given to the Company or the Holder shall be deemed to have been sufficiently given if delivered personally or sent by overnight courier or messenger, or by facsimile transmission. Notices shall be deemed to have been received on the date of personal delivery or facsimile transmission. The address of the Company and of the Holder shall be as set forth in the Company's books and records. 13. CONSENT TO JURISDICTION AND SERVICE. The Company consents to the jurisdiction of any court of the State of California, and of any federal court located in California, in any action or proceeding arising out of or in connection with this Warrant. The Company waives personal service of any summons, complaint or other process in connection with any such action or proceeding and agrees that service thereof may be made, by certified mail directed to the Company at the location provided in Section 12 hereof, or, in the alternative, in any other form or manner permitted by law. Orange County, California shall be proper venue. 14. SUCCESSORS. All the covenants and provisions of this Warrant shall be binding upon and inure to the benefit of the Company, the Holder and their respective legal representatives, successors and assigns. 15. ATTORNEYS FEES. In the event the Holder or any holder hereof shall refer this Warrant to an attorney to enforce the terms hereof, the Company agrees to pay all the costs and expenses incurred in attempting or effecting collection hereunder, including reasonable attorney's fees, whether or not suit is instituted. 16. GOVERNING LAW. THIS WARRANT SHALL BE GOVERNED, CONSTRUED AND INTERPRETED UNDER THE LAWS OF THE STATE OF CALIFORNIA, WITHOUT GIVING EFFECT TO THE RULES GOVERNING CONFLICTS OF LAW. 17. REGISTRATION RIGHTS. (a) Piggyback Registration Rights. If Anza at any time proposes to conduct an offering of its securities so as to register any of its securities under the Securities Act of 1933 (the "Act"), including under an S-1 Registration Statement or otherwise, it will at such time give written notice to Holder, or its assigns, of its intention so to do. Upon the written request of Holder, or assigns, given within 10 days after receipt of any such notice, Anza will use its best efforts to cause the Warrant Securities to be registered under the Act (with the securities which Anza at the time proposes to register). Page 4 of 6 (b) Demand Registration Rights. At any time after the date which is ninety (90) days from the date hereof, and with thirty one (31) days advance notice, the Holder may demand that the Company prepare and file a registration statement to register the resale of the Warrant Securities. The Holder shall pay all expenses of a registration statement which it demands, such payment to be made directly to legal counsel for Anza and in advance or in accordance with normal billing practices. (c) The registration rights set forth herein will terminate upon such time as the Warrant Securities may be resold without regard to volume limitations under Rule 144 promulgated under the Act. IN WITNESS WHEREOF, the Company has caused this Warrant to be executed by the signature of its President and to be delivered in Santa Ana, California. Dated: September 15, 2004 Anza Capital, Inc., a Nevada corporation /s/ Vincent Rinhart ---------------------------------- By: Vincent Rinehart Its: President Page 5 of 6 [FORM OF ELECTION TO PURCHASE] The undersigned, the holder of the attached Warrant, hereby irrevocably elects to exercise the purchase right represented by this Warrant Certificate for, and to purchase securities of Anza Capital, Inc. and herewith makes payment of $___________, and requests that the certificates for such securities be issued in the name of, and delivered to _______________________, whose address is _________________________________________. Dated: ____________________, 20___ _________________________________ By: _____________________________ (Signature must conform in all respects to name of holder as specified on the face of the Warrant Certificate) ____________________________________________ (Insert Social Security or Other Identifying Number of Holder) Page 6 of 6 EX-10.8 9 doc9.txt EXHIBIT 10.8 THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED ("THE ACT"), OR THE SECURITIES LAWS OF ANY STATE, AND MAY NOT BE OFFERED, SOLD, TRANSFERRED, PLEDGED, HYPOTHECATED OR OTHERWISE DISPOSED OF EXCEPT PURSUANT TO (i) AN EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT AND ANY APPLICABLE STATE LAWS, (ii) TO THE EXTENT APPLICABLE, RULE 144 UNDER THE ACT (OR ANY SIMILAR RULE UNDER THE ACT RELATING TO THE DISPOSITION OF SECURITIES), OR (iii) AN OPINION OF COUNSEL, IF SUCH OPINION SHALL BE REASONABLY SATISFACTORY TO COUNSEL TO THE ISSUER, THAT AN EXEMPTION FROM REGISTRATION UNDER THE ACT AND APPLICABLE STATE LAW IS AVAILABLE. WARRANT Anza Capital, Inc. (Incorporated under the laws of the State of Nevada) THIS IS TO CERTIFY that, for value received, GunnAllen Financial, Inc. (collectively, the "Holder") is entitled, subject to the terms and conditions set forth herein, to purchase from Anza Capital, Inc., a Nevada corporation (the "Company") up to Two Hundred Fifty Thousand (250,000) fully paid and nonassessable shares of common stock of the Company (the "Warrant Securities") at the exercise price set forth in Section 1 below, (the "Exercise Price"). One Hundred Thousand (100,000) of the above referenced warrants are currently vested and the remaining One Hundred Fifty Thousand (150,000) will vest at a rate of Fifty Thousand (50,000) per $1,250,000 in financing or value (to include the extension or realized appreciation of the Gauld Share Exchange) being provided to the Company by GunnAllen Financial, Inc, its affiliates or introduced parties to the Company. 1. EXERCISABILITY. This Warrant may be exercised in whole or in part (subject to the limitation in Section 3) at any time, or from time to time, between the date hereof until 5:00 p.m. Pacific Time on the date which is five (5) years from the date hereof, by presentation and surrender hereof to the Company of a notice of election to purchase duly executed and accompanied by payment by of the Exercise Price. The Exercise Price for each share of common stock of the Company shall be $0.25 per share. 2. MANNER OF EXERCISE. In case of the purchase of less than all the Warrant Securities, the Company shall cancel this Warrant upon the surrender hereof and shall execute and deliver a new warrant of like tenor for the balance of the Warrant Securities. Upon the exercise of this Warrant, the issuance of certificates for securities, properties or rights underlying this Warrant shall be made forthwith (and in any event within ten (10) business days thereafter) without charge to the Holder including, without limitation, any tax that may be payable in respect of the issuance thereof: provided, however, that the Company shall not be required to pay any tax in respect of income or capital gain of the Holder. Page 1 of 6 If and to the extent this Warrant is exercised, in whole or in part, the Holder shall be entitled to receive a certificate or certificates representing the Warrant Securities so purchased, upon presentation and surrender to the Company of the form of election to purchase attached hereto duly executed, and accompanied by payment of the purchase price. 3. Adjustment in Number of Shares. (A) Adjustment for Reclassifications. In case at any time or from ----------------------------------- time to time after the issue date the holders of the Common Stock of the Company (or any shares of stock or other securities at the time receivable upon the exercise of this Warrant) shall have received, or, on or after the record date fixed for the determination of eligible stockholders, shall have become entitled to receive, without payment therefore, other or additional stock or other securities or property (including cash) by way of stock split, spin-off, reclassification, combination of shares or similar corporate rearrangement (exclusive of any stock dividend of its or any subsidiary's capital stock), then and in each such case the Holder of this Warrant, upon the exercise hereof as provided in Section 1, shall be entitled to receive the amount of stock and other securities and property which such Holder would hold on the date of such exercise if on the issue date he had been the holder of record of the number of shares of Common Stock of the Company called for on the face of this Warrant and had thereafter, during the period from the issue date, to and including the date of such exercise, retained such shares and/or all other or additional stock and other securities and property receivable by him as aforesaid during such period, giving effect to all adjustments called for during such period. In the event of any such adjustment, the Exercise Price shall be adjusted proportionally. (B) Adjustment for Reorganization, Consolidation, Merger. In case of ------------------------------------------------------ any reorganization of the Company (or any other corporation the stock or other securities of which are at the time receivable on the exercise of this Warrant) after the issue date, or in case, after such date, the Company (or any such other corporation) shall consolidate with or merge into another corporation or convey all or substantially all of its assets to another corporation, then and in each such case the Holder of this Warrant, upon the exercise hereof as provided in Section 1 at any time after the consummation of such reorganization, consolidation, merger or conveyance, shall be entitled to receive, in lieu of the stock or other securities or property to which such Holder would be entitled had the Holder exercised this Warrant immediately prior thereto, all subject to further adjustment as provided herein; in each such case, the terms of this Warrant shall be applicable to the shares of stock or other securities or property receivable upon the exercise of this Warrant after such consummation. 4. NO REQUIREMENT TO EXERCISE. Nothing contained in this Warrant shall be construed as requiring the Holder to exercise this Warrant prior to or in connection with the effectiveness of a registration statement. 5. NO STOCKHOLDER RIGHTS. Unless and until this Warrant is exercised, this Warrant shall not entitle the Holder hereof to any voting rights or other rights as a stockholder of the Company, or to any other rights whatsoever except the rights herein expressed, and, no dividends shall be payable or accrue in respect of this Warrant. Page 2 of 6 6. EXCHANGE. This Warrant is exchangeable upon the surrender hereof by the Holder to the Company for new warrants of like tenor representing in the aggregate the right to purchase the number of Warrant Securities purchasable hereunder, each of such new warrants to represent the right to purchase such number of Warrant Securities as shall be designated by the Holder at the time of such surrender. Upon receipt by the Company of evidence reasonably satisfactory to it of the loss, theft, destruction or mutilation of this Warrant, and, in case of loss, theft or destruction, of indemnity or security reasonably satisfactory to it and reimbursement to the company of all reasonable expenses incidental thereto, and upon surrender and cancellation hereof, if mutilated, the Company will make and deliver a new warrant of like tenor and amount, in lieu hereof. 7. ELIMINATION OF FRACTIONAL INTERESTS. The Company shall not be required to issue certificates representing fractions of securities upon the exercise of this Warrant, nor shall it be required to issue scrip or pay cash in lieu of fractional interests. All fractional interests shall be eliminated by rounding any fraction up to the nearest whole number of securities, properties or rights receivable upon exercise of this Warrant. 8. RESERVATION OF SECURITIES. The Company shall at all times reserve and keep available out of its authorized shares of Common Stock or other securities, solely for the purpose of issuance upon the exercise of this Warrant, such number of shares of Common Stock or other securities, properties or rights as shall be issuable upon the exercise hereof. The Company covenants and agrees that, upon exercise of this Warrant and payment of the exercise price, all shares of Common Stock and other securities issuable upon such exercise shall be duly and validly issued, fully paid, non-assessable and not subject to the preemptive rights of any stockholder. 9. NOTICES TO HOLDER. If at any time prior to the expiration of this Warrant or its exercise, any of the following events shall occur: (a) the Company shall take a record of the holders of any class of its securities for the purpose of entitling them to receive a dividend or distribution payable otherwise than in cash, or a cash dividend or distribution payable otherwise than out of current or retained earnings, as indicated by the accounting treatment of such dividend or distribution on the books of the Company; or (b) the Company shall offer to all the holders of a class of its securities any additional shares of capital stock of the Company or securities convertible into or exchangeable for shares of capital stock of the Company, or any option or warrant to subscribe therefor; or (c) a dissolution, liquidation or winding up of the Company (other than in connection with a consolidation or merger) or a sale of all or substantially all of its property, assets and business as an entirety shall be proposed. Page 3 of 6 then, in any one or more said events, the Company shall give written notice of such event to the Holder at least fifteen (15) days prior to the date fixed as a record date or the date of closing the transfer books for the determination of the stockholder entitled to such dividend, distribution, convertible or exchangeable securities or subscription rights, or entitled to vote on such proposed dissolution, liquidation, winding up or sale. Such notice shall specify such record date or the date of closing the transfer books, as the case may be. 10. TRANSFERABILITY. This Warrant may be transferred or assigned by the Holder at any time, and Holder agrees to provide notice to the Company immediately of any such transfer or assignment. 11. INFORMATIONAL REQUIREMENTS. The Company will transmit to the Holder such information, documents and reports as are generally distributed to stockholders of the Company concurrently with the distribution thereof to such stockholders. 12. NOTICE. Notices to be given to the Company or the Holder shall be deemed to have been sufficiently given if delivered personally or sent by overnight courier or messenger, or by facsimile transmission. Notices shall be deemed to have been received on the date of personal delivery or facsimile transmission. The address of the Company and of the Holder shall be as set forth in the Company's books and records. 13. CONSENT TO JURISDICTION AND SERVICE. The Company consents to the jurisdiction of any court of the State of California, and of any federal court located in California, in any action or proceeding arising out of or in connection with this Warrant. The Company waives personal service of any summons, complaint or other process in connection with any such action or proceeding and agrees that service thereof may be made, by certified mail directed to the Company at the location provided in Section 12 hereof, or, in the alternative, in any other form or manner permitted by law. Orange County, California shall be proper venue. 14. SUCCESSORS. All the covenants and provisions of this Warrant shall be binding upon and inure to the benefit of the Company, the Holder and their respective legal representatives, successors and assigns. 15. ATTORNEYS FEES. In the event the Holder or any holder hereof shall refer this Warrant to an attorney to enforce the terms hereof, the Company agrees to pay all the costs and expenses incurred in attempting or effecting collection hereunder, including reasonable attorney's fees, whether or not suit is instituted. 16. GOVERNING LAW. THIS WARRANT SHALL BE GOVERNED, CONSTRUED AND INTERPRETED UNDER THE LAWS OF THE STATE OF CALIFORNIA, WITHOUT GIVING EFFECT TO THE RULES GOVERNING CONFLICTS OF LAW. Page 4 of 6 17. REGISTRATION RIGHTS. (a) Piggyback Registration Rights. If Anza at any time proposes to conduct an offering of its securities so as to register any of its securities under the Securities Act of 1933 (the "Act"), including under an S-1 Registration Statement or otherwise, it will at such time give written notice to Holder, or its assigns, of its intention so to do. Upon the written request of Holder, or assigns, given within 10 days after receipt of any such notice, Anza will use its best efforts to cause the Warrant Securities to be registered under the Act (with the securities which Anza at the time proposes to register). (b) Demand Registration Rights. At any time after the date which is ninety (90) days from the date hereof, and with thirty one (31) days advance notice, the Holder may demand that the Company prepare and file a registration statement to register the resale of the Warrant Securities. The Holder shall pay all expenses of a registration statement which it demands, such payment to be made directly to legal counsel for Anza and in advance or in accordance with normal billing practices. (c) The registration rights set forth herein will terminate upon such time as the Warrant Securities may be resold without regard to volume limitations under Rule 144 promulgated under the Act. IN WITNESS WHEREOF, the Company has caused this Warrant to be executed by the signature of its President and to be delivered in Santa Ana, California. Dated: September 15, 2004 Anza Capital, Inc., a Nevada corporation /s/ Vincent Rinehart ---------------------------------- By: Vincent Rinehart Its: President Page 5 of 6 [FORM OF ELECTION TO PURCHASE] The undersigned, the holder of the attached Warrant, hereby irrevocably elects to exercise the purchase right represented by this Warrant Certificate for, and to purchase securities of Anza Capital, Inc. and herewith makes payment of $___________, and requests that the certificates for such securities be issued in the name of, and delivered to _______________________, whose address is _________________________________________. Dated: ____________________, 20___ _________________________________ By: _____________________________ (Signature must conform in all respects to name of holder as specified on the face of the Warrant Certificate) ____________________________________________ (Insert Social Security or Other Identifying Number of Holder) Page 6 of 6 -----END PRIVACY-ENHANCED MESSAGE-----