EXHIBIT 10.03
COMMON STOCK PURCHASE AGREEMENT
THIS COMMON STOCK PURCHASE AGREEMENT (this "Agreement") is made as of
October 24, 2003, between ACCUIMAGE DIAGNOSTICS CORP., a Nevada corporation (the
"Company"), and the person executing this Agreement on the signature page hereof
(the "Signature Page") as Purchaser (the "Purchaser"):
RECITALS:
WHEREAS, the Company has authorized the issuance and sale pursuant to the
terms and conditions hereof of 25,050,000 shares of its Common Stock (the
"Common Stock"); and
WHEREAS, the Purchaser desires to purchase and the Company desires to sell
the Common Stock on the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of these premises and the mutual covenants
and agreements herein contained and other valuable consideration, the receipt
and adequacy of which the parties hereto acknowledge, the parties agree as
follows:
1. PURCHASE AND SALE OF THE SHARES. The Company agrees to sell to the
Purchaser, and upon the basis of the representations and warranties, and subject
to the terms and conditions, set forth in this Agreement, the Purchaser agrees
to purchase from the Company that number of shares of Common Stock set forth on
the Signature Page hereof (the "Shares") in consideration for a purchase price
(the "Purchase Price") of US$0.040 per share.
2. CLOSING DATE; DELIVERY. The closing of the purchase and sale of the
Shares shall be held at the offices of the Company, 000 Xxxxx Xxxxxx, Xxxxx 000,
Xxxxx Xxx Xxxxxxxxx, Xxxxxxxxxx 00000 on October 31, 2003 or at such other time
and place as the parties may agree upon. At the closing, subject to the terms of
this Agreement, the Purchaser shall deliver the purchase price in immediately
available funds by transfer to the account of the Company. Within thirty (30)
days following the Closing, the Company will deliver tothe Purchaser, pursuant
to Purchaser's delivery instructions, certificates representing the Shares to be
purchased by the Purchaser from the Company.
3. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company represents
and warrants to, and agrees with, the Purchaser that:
(a) ORGANIZATION AND STANDING, ARTICLES AND BYLAWS. The Company is a
corporation duly organized and validly existing under, and by virtue of, the
laws of the State of Nevada and is in good standing under such laws. The Company
has the requisite corporate power to own and operate its properties and assets,
and to carry on its business as presently conducted and as proposed to be
conducted. The Company is qualified, licensed or domesticated as a foreign
corporation in all jurisdictions where the nature of its activities or of its
properties owned or leased makes such qualification, licensing or domestication
necessary at this time.
(b) CORPORATE POWER. The Company has now, or will have at the Closing
Date, all requisite legal and corporate power to enter into this Agreement, to
sell the Shares hereunder, and to carry out and perform its obligations under
the terms of this Agreement.
(c) AUTHORIZATION.
(i) All corporate action on the part of the Company, its
officers, directors, and stockholders necessary for the sale and issuance of the
Shares pursuant hereto and the performance of the Company's obligations
hereunder has been taken or will be taken prior to the Closing. This Agreement
is a legal, valid and binding obligation of the Company, enforceable against the
Company in accordance with its terms, except as limited by bankruptcy,
insolvency, reorganization, moratorium or similar laws of general application
affecting enforcement of creditors' rights, and except as limited by application
of legal principles affecting the availability of equitable remedies.
(ii) The Shares, when issued in compliance with the provisions of
this Agreement, will be validly issued, fully paid and nonassessable and will be
free of any liens or encumbrances; provided, however, that such shares may be
subject to restrictions on transfer under state and/or federal securities laws
as set forth herein and as may be required by future changes in such laws.
(iii) No shareholder of the Company has any right of first
refusal or any preemptive rights in connection with the issuance of the Shares
or of Common Stock by the Company.
(d) PUBLIC REPORTING. The Company is subject to the reporting
requirements of Section 13 or Section 15(d) of the Securities Exchange Act of
0000 (xxx 00 0000 Xxx"); the Company's (a) Annual Report on Form lO-KSB for the
fiscal year ended September 30, 2002, (b) Annual Proxy Statement of Form 14A for
the fiscal year ended September 30, 2002, (c) Current Reports on Form 8-K dated
January 24, 2003 and April 21, 2003, and (d) Quarterly Reports on Forms I O-QSB
for the three months ended December 31, 2002; the six months ended March 31,
2003, and nine months ended June 30, 2003 (collectively, the "Public
Disclosure") filed by the Company with the U.S. Securities and Exchange
Commission (the "SEC") have been so filed and the Company has provided copies of
all such Public Disclosure to the Purchaser
(e) LITIGATION, ETC. There are no actions, proceedings or
investigations pending (or to the best of the Company's knowledge, any basis
therefor or threat thereof), which, either in any case or in the aggregate,
might result in any adverse change in the business, prospects, conditions,
affairs, or operations of the Company, or in any of its properties or assets, or
in any impairment of the right or ability of the Company to carry on its
business as proposed to be conducted, or in any material liability on the part
of the Company, or which question the validity of this Agreement or any action
taken or to be taken in connection herewith.
(f) GOVERNMENTAL CONSENT ETC. No consent, approval, or authorization
of, or desipation, declaration, or filing with, any governmental unit is
required on the part of the Company in connection with the valid execution and
delivery of this Agreement, or the offer, sale or issuance of the Shares, or the
consummation of any other transaction contemplated
hereby (except qualification or exemption under the California Corporate
Securities Law, which exemption or qualification will be available or obtained
and will be effective on the Closing Date).
(g) OFFERING. The offer, sale and issuance of the Shares in conformity
with the terms of this Agreement (the "Offering") will not violate the
Securities Act of 1933, as amended ("Securities Act").
(h) THE SHARES:
(i) are free and clear of any security interests,
liens, claims, or other encumbranches;
(ii) have been duly and validly authorized and issued and are,
and on the Closing Date will be, fully paid and non-assessable;
(iii) will not have been, individually and collectively, issued
or sold in violation of any pre-emptive or other similar rights of the holders
of any securities of the Company; and
(iv) will not subject the holders thereof to personal liability
by reason of being such holders.
(i) FURNISHING OF FINANCIAL STATEMENTS AND INFORMATION. The Company
will deliver to the Purchaser :
(i) as soon as practicable, but in any event within 90 days after
the end of each fiscal year, a consolidated balance sheet of the Company and its
Subsidiaries, as of the end of such fiscal year, together with the related
consolidated statements of operations, shareholders' equity and cash flow for
such fiscal year, setting forth in comparative form figures for the previous
fiscal year, all in reasonable detail and duly certified by the Company's
independent public accountants, which accountants shall have given the Company
an opinion, unqualified as to the scope of the audit, regarding such statements.
(ii) with reasonable promptness, such other financial data
relating to the business, affairs and financial condition of the Company and any
Subsidiaries as is available to the Company and as from time to time the
Purchasers may reasonably request.
(j) INSPECTION. The Company will permit the Purchaser and any of its
partners, officers or employees, or any outside representatives designated by
such Purchaser, to visit and inspect at such Purchaser's expense any of the
properties of the Company or its Subsidiaries, including their books and records
(and to make photocopies thereof or make extracts therefrom), and to discuss
their affairs, finances, and accounts with their officers, lavyers and
accountants, except with respect to trade secrets and similar confidential
information, all to such reasonable extent and at such reasonable times and
intervals as such Purchaser may reasonably request. Except as otherwise required
by laws or regulations applicable to the Purchaser, the Purchaser shall
maintain, and shall require his representatives to
maintain, all information obtained pursuant to Sections 3(i) and 3(j) hereof on
a confidential basis.
4. REPRESENTATIONS AND WARRANTIES OF THE PURCHASER. The Purchaser
represents and warrants to, and agrees with, the Company:
(a) No consent, approval, authorization, or order of any court,
governmental agency or body, or arbitrator having jurisdiction over the
Purchaser is required for execution of this Agreement, including, without
limitation, the purchase of the Shares or the performance of the Purchaser's
obligations hereunder.
(b) The Purchaser understands that no federal or state agency has
passed on or made any recommendation or endorsement of the Shares.
(c) The Company has given the Purchaser the opportunity to have
answered all of the Purchaser's questions concerning the Company and its
business and has made available to the Purchaser all information requested by
the Purchaser which is reasonably necessary to verify the accuracy of other
information ftu-nished by the Company. The Purchaser has received and evaluated
all information about the Company and its business which the Purchaser deems
necessary to formulate an investment decision and does not desire any further
information.
(d) The Purchaser understands that the Shares are being offered and
sold to it in reliance on specific exemptions or non-application from the
registration requirements of federal and state securities laws and that the
Company is relying upon the truth and accuracy of the representations,
warranties, agreements, acknowledgments, and understandings of the Purchaser set
forth herein in order to determine the applicability of such exemptions or non-
applications and the suitability of the Purchaser to acquire the Shares.
(e) The Purchaser is aware that the Shares have not been registered
under the Securities Act of 1933 by reason of their issuance in a transaction
exempt from the registration and prospectus delivery requirements of the
Securities Act pursuant to Section 4(2) and Regulation D thereof and that they
must be held by the Purchaser indefinitely, and the Purchaser must therefore
bear the economic risk of such investment indefinitely unless a subsequent
disposition thereof is registered under the Securities Act or is exempt from
registration. The Purchaser is aware of the provisions of Rule 144 promulgated
under the Securities Act which permits limited resale of shares purchased in a
private placement subject to the satisfaction of certain conditions, including
among other things the existence of a public market for the Shares, the
availability of certain current public information about the Company, the resale
occurring not less than two years after a party has purchased and paid for the
security to be sold, the sale being through a "broker's transaction" or in
transactions directly with a "market maker" (as provided by Rule 144(f)), and
the number of shares being sold during any three-month period not exceeding
specified limitations. The Purchaser is also aware that while many of the
restrictions of Rule 144 do not apply to the resale of shares by a person who
owned those shares for at least one year prior to their resale and who is not an
"affiliate" (within the meaning of Rule 144(a)) of the issuer and has not been
an affiliate of the issuer for at least three months prior to the date of resale
of the restricted securities, the Company does not warrant or represent that the
Purchaser is not an
affiliate as of the date of this Agreement or that the Purchaser will not be an
affiliate at any relevant times in the future.
(f) Each instrument representing the Shares is to be endorsed with the
following legends:
(i) THE SECURITIES EVIDENCED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND MAY NOT BE SOLD,
TRANSFERRED, ASSIGNED OR HYPOTHECATED UNLESS THERE IS AN EFFECTIVE REGISTRATION
STATEMENT UNDER SUCH ACT COVERING SUCH SECURITIES, THE SALE IS MADE IN
ACCORDANCE WITH RULE 144 UNDER THE ACT, OR THE COMPANY RECEIVES AN OPINION OF
COUNSEL FOR THE HOLDER OF THESE SECURITIES REASONABLY SATISFACTORY TO THE
COMPANY, STATING THAT SUCH SALE, TRANSFER, ASSIGNMENT OR HYPOTHECATION IS EXEMPT
FROM THE REGISTRATION AND PROSPECTUS DELIVERY REQUIREMENTS OF SUCH ACT.
(ii) Any other legend required by California or other state
securities laws.
The Company need not register a transfer of legended Shares and may
instruct its transfer agent not to register the transfer of the Shares unless
one of the conditions specified in the foregoing legends is satisfied.
(g) Any legend endorsed on an instrument pursuant to Section 4(f)
hereof and the stop transfer instructions with respect to such Shares shall be
removed, and the Company shall issue an instrument without such legend to the
holder of such Shares if such Shares are registered under the Securities Act and
a prospectus meeting the requirements of Section 10 of the Securities Act is
available or if such holder provides the Company with an opinion of counsel for
such holder of the Shares, reasonably satisfactory to the Company, to the effect
that a public sale, transfer or assignment of such Shares may be made without
registration.
(h) The Purchaser is either (i) acquiring the Shares for the
Purchaser's own account; or (ii) for the account of another for which the
Purchaser acts as a fiduciary, in which case the Purchaser will so advise the
Company. If acting as a fiduciary, the Purchaser makes the representations,
warranties, and covenants as set forth herein on its own behalf and as agent for
and on behalf of such other party. The Purchaser is acquiring the Shares for
investment and without any present intention to engage in a distribution
thereof.
(i) The Purchaser has the knowledge and experience in financial and
business matters to evaluate the merits and risks of the proposed investment.
(j) The Purchaser is an "Accredited Investor" as that term is defined
under Rule 501 adopted pursuant to the Securities Act.
5. CONDITIONS PRECEDENT TO THE PURCHASER' S OBLIGGTIONS. The obligations of
the Purchaser hereunder are subject to the performance by the Company of its
obligations hereunder and to the satisfaction of the following conditions
precedent on or before the Closing Date:
(a) The representations and warranties made by the Company in this
Agreement shall, unless waived by the Purchaser, be true and correct as of the
date hereof and at the Closing Date, with the same force and effect as if they
had been made on and as of the Closing Date.
(b)After the date hereof until the Closing Date, there shall not have
occurred:
(i) any change, or any development involving a prospective
change, in either (A) the condition, financial or otherwise, or in the earnings,
business or operations, or in or affecting the properties of the Company, or (B)
the financial or market conditions or circumstances in the United States, in
either case which, in the Purchaser's judgment, is material and adverse and
makes it impractical or inadvisable to proceed with the offering, sale, or
delivery of the Shares;
(ii) an imposition of a new legal or regulatory restriction not
in effect on the date hereof, or any change in the interpretation of existing
legal or regulatory restrictions, that materially and adversely affects the
offering, sale, or delivery of the Shares; or
(iii) a suspension or material limitation of trading (A)
generally on or by the New York Stock Exchange or NASDAQ or (B) of any
securities of the Company on any exchange or in any over-the-counter market.
6. CONDITIONS PRECEDENT TO THE COMPANY'S OBLIGATIONS. The obligations of
the Company hereunder are subject to the Company receiving any necessary
shareholder approval for the sale and issuance of the Shares, the performance by
the Purchaser of its obligations hereunder, and the satisfaction of the
condition that the representations and warranties made by the Purchaser in this
Agreement shall unless waived by the Company, be true and correct at the Closing
Date, with the same force and effect as if they had been made on and as of, the
Closing Date. In addition, the obligations of the Company hereunder are subject
to (i) the Investor entering into an employment agreement with the Company on
terms satisfactory to the Company pursuant to which the Investor shall agree to
become the Company's chief executive officer for a period of not less than one
year and for a salary of $ 1. 00 per year; and (ii) the Investor shall have
entered into a loan agreement on terms satisfactory to the Company pursuant to
which the Investor shall agree to lend the Company the sum of $ 1,000,000 for a
term of one year at an interest rate not to exceed 5% per annum.
7. FEES AND EXPQNSES. The Purchaser and the Company each agrees to pay its
own expenses incident to the performance of its obligations hereunder, except
that the Company agrees to pay the fees, expenses and disbursements of the
Purchaser's counsel.
8. SURVIVAL OF THE REDRESENTATIONS, WARRANTIES. ETC. The respective
agreements, representations, warranties, indemnities, and other statements made
by or on behalf of the Company and Purchaser pursuant to this Agreement shall
remain in full force and effect, regardless of any investigation made by or on
behalf of the other party to this Agreem ent or any officer, director, or
employee, or person controlling or under common control with, such party, and
will survive delivery of any payment of the Shares.
9. NOTICES. All communications hereunder shall be in writing and, if sent
to the Purchaser, shall be sufficient in all respects if delivered, sent by
registered mail, or by telecopy and confumed to the Purchasers at the address
set forth on the Signature Page or, if sent to the Company, shall be delivered,
sent by registered mail, or by telecopy and confirmed to the Company at:
ACCUMAGE DIAGNOSTICS CORP.
000 Xxxxx Xxxxxx, Xxxxx 000
Xxxxx Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Tel: (000) 000-0000
10. MISCELLANEOUS.
(a) This Agreement may be executed in one or more counterparts and it
is not necessary that signatures of all parties appear on the same counterpart
but such counterparts together shall constitute but one and the same agreement.
(b) This Agreement shall inure to the benefit of and be binding upon
the parties hereto, their respective successors and, with respect to Section 8
hereof, the officers, directors, and controlling persons thereof and each person
under common control therewith, and no other person shall have any right or
obligation hereunder.
(c) This Agreement shall be governed by, and construed in accordance
with, the laws of the State of California.
(d) The headings of the sections of this document have been inserted
for convenience of reference only and shall not be deemed to be a part of this
Agreement.
IN WITNESS HEREOF, the parties hereto have duly executed and delivered this
Agreement, all as of the day and year first above written.
COMPANY:
ACCUIMAGE DIAGNOSTICS CORP.
By: /s/ XX. X. XXXXX WALL
________________________
Xx. X. Xxxxx Wall
Chairman of the Board
Shares: 25,050,000 PURCHASER:
AVI FALIKS, PhD
____________________________
Print Name
By: /s/ AVI FALIKS, PhD
____________________________
Signature
000 Xxxxxx Xxxxxx, Xxx. 000,
Xxxxxxxx, XX 00000
____________________________
____________________________
Telephone Number
Total Purchase Price:
$1,002,000 in Cash for Stock
1,000,000 Loan to Compny for One (1) year @ 5% Simple Interest
Employment Agreement for One (1)year @ $1.00 per year as Chief Executive Officer
