STOCK PURCHASE AGREEMENT
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THIS STOCK PURCHASE AGREEMENT (the "Agreement") is entered into as of
December __, 2001, by and between ACCUIMAGE DIAGNOSTICS CORP., a Nevada
corporation (the "Company"), and the undersigned investor (the "Investor").
RECITALS
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The Company is privately offering up to 11,904,762 shares of the Company's
Common Stock (the "Shares") to certain potential investors at the per share
purchase price of $0.084 (the "Offering"), and each Investor has agreed to
purchase the number of Shares set forth in its subscription agreement, the form
of which is attached hereto as Exhibit A ("Subscription Agreement"), such amount
not to be less than 119,047 shares.
AGREEMENT
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NOW, THEREFORE, Company and Investor hereby agree as follows:
Section 1
Purchase and Sale of Shares
1.1 Purchase. Investor hereby agrees to purchase, and the Company hereby
agrees to sell to Investor, the number of Shares set forth below Investor's
signature on the Subscription Agreement executed by Investor at the purchase
price of $0.084 per Share, such amount not to be less than 119,047 shares.
1.2 Form of Payment; Closing. The aggregate purchase price shall be the
product of the number of Shares set forth on the Subscription Agreement executed
by Investor multiplied by $0.084 (the "Aggregate Purchase Price"). Investor
shall pay the Aggregate Purchase Price either: (i) by delivering a check to
Company in the amount of the Aggregate Purchase Price with said check payable to
"Accuimage Diagnostics Corp."; or (ii) by wiring the Aggregate Purchase Price
into an account as directed by the Company. The minimum investment is $10,000.00
(119,047 Shares). The closing of the sale of Shares to Investor (the "Closing")
shall occur promptly after (i) all the conditions set forth in Sections 4 and 5
of this Agreement have been satisfied; (ii) the Company has received and
approved executed Stock Purchase Agreements and Subscription Agreements for a
total of $150,000.06 (1,785,715 Shares). The Company will not deposit any check
received from Investor until the Closing. If for any reason the Closing does not
occur on or before December 7, 2001, then the Company shall at its discretion
return to Investor any check or wire transferred funds provided pursuant to this
Section 1.2 and the Company shall have no further obligations to Investor.
Section 2
Company Representations and Warranties
The Company hereby represents and warrants to each Investor that as of the
Closing:
2.1 Organization. The Company is a corporation duly formed, validly
existing and in good standing under the laws of the State of Nevada and has all
requisite corporate power and authority to carry on its business as now
conducted and as proposed to be conducted.
2.2 Authorization. All corporate action on the part of the Company, its
officers, directors and shareholders necessary for the authorization, execution
and delivery of this Agreement and the performance of all obligations of the
Company hereunder and thereunder, and the authorization, issuance, sale and
delivery of the Shares being purchased by Investor hereunder has been taken or
will be taken prior to the Closing, and this Agreement constitutes the valid and
legally binding obligation of the Company, enforceable in accordance with its
terms, except as may be limited by (i) bankruptcy, insolvency, reorganization,
moratorium, fraudulent conveyance, fraudulent transfer or other similar laws of
general application and by legal, equitable or public policy principles relating
to, limiting or affecting the enforceability of creditors' rights generally, or
(ii) general principles of equity, including without limitation, concepts of
materiality, reasonableness, good faith and fair dealing and the possible
unavailability of specific performance and injunctive relief, regardless of
whether considered in a proceeding in equity or at law.
2.3 Valid Issuance of the Shares. The Shares, when issued, sold and
delivered in accordance with the terms of this Agreement, will be duly and
validly issued, fully paid, and nonassessable, and will be free of restrictions
on transfer other than restrictions on transfer under this Agreement and under
applicable state and federal securities laws.
2.4 Governmental Consents. No consent, approval, order or authorization of,
or registration, qualification, designation, declaration or filing with, any
federal, state or local governmental authority on the part of the Company is
required in connection with the consummation of the transactions contemplated by
this Agreement, except for any filings that may be required pursuant to
Regulation D under the Securities Act of 1933, as amended (the "Act") or by any
applicable state "Blue Sky" laws.
Section 3
Investor Representations and Warranties
Investor hereby represents and warrants that:
3.1 Authorization. Investor has full power and authority to execute,
deliver and perform this Agreement, and this Agreement constitutes the valid and
legally binding obligation of Investor, enforceable in accordance with its terms
except as may be limited by (i) bankruptcy, insolvency, reorganization,
moratorium, fraudulent conveyance, fraudulent transfer or other similar laws of
general application and by legal, equitable or public policy principles relating
to, limiting or affecting the enforceability of creditors' rights generally, or
(ii) general principles of equity, including without limitation, concepts of
materiality, reasonableness, good faith and fair dealing and the possible
unavailability of specific performance and injunctive relief, regardless of
whether considered in a proceeding in equity or at law.
3.2 Purchase Entirely for Own Account. This Agreement is made with Investor
in reliance upon Investor's representation to the Company, which, by Investor's
execution of this Agreement, Investor hereby confirms that the Shares to be
purchased by Investor hereunder will be acquired for investment purposes only
and for Investor's own account, not as a nominee or agent, and not with a view
to the resale or distribution of any part thereof, and that Investor has no
present intention of selling, granting any participation in, or otherwise
distributing the same. By executing this Agreement, Investor further represents
that Investor does not have any contract, undertaking, agreement or arrangement
with any person to sell, transfer or grant participations to such person or to
any third person, with respect to any of the Shares.
3.3 Disclosure of Information. Investor has received all the information
Investor considers necessary or appropriate for deciding whether to purchase the
Shares to be purchased hereunder. Investor acknowledges that: (i) Investor has
pursued its own independent investigation of the Company and of any information
that Investor considers material to its investment decision; (ii) Investor has
read the Form 10-KSB filed by the Company for its fiscal year ending September
30, 2000, the Forms 10-QSB filed by the Company for the quarters ending December
31, 2000, March 31, 2001, and September 30, 2001, and the Form 10-QSB/A filed by
the Company for the quarter ending December 31, 2000; and (iii) Investor is
relying solely upon such independent investigation, the information contained in
the aforementioned Form 10-KSB, two Forms 10-QSB and Form 10-QSB/A and the
representations and warranties contained in Section 2 of this Agreement.
Investor further represents that Investor has had an opportunity to ask
questions and receive answers and information from the Company regarding the
terms and conditions of the Offering and the business, properties, prospects and
financial condition of the Company.
3.4 Investment Experience; No Oral Representations. Investor is an
experienced investor in securities and acknowledges that Investor is able to
fend for him/her/itself, can bear the economic risk of Investor's investment,
and has such knowledge and experience in financial or business matters that
Investor is capable of evaluating the merits and risks of the investment in the
Shares to be purchased hereunder. In evaluating the merits and risks of an
investment in the Shares, Investor has relied, in part, upon the advice of
Investor's legal counsel, tax advisors, and/or other investment advisors. At no
time was any oral representation made to Investor relating to the purchase of
the Shares or was Investor presented with or solicited by any form of general
advertising relating to the purchase hereunder. Investor has not relied on any
verbal statements or representations made to Investor in determining whether to
purchase the Shares hereunder. Investor is prepared to bear the risk of losing
part or all of Investor's investment in the Shares, and Investor acknowledges
the inability to sell or transfer the Shares for an indefinite period of time or
at a price which would enable Investor to recoup the investment in the Shares.
INVESTOR UNDERSTANDS THAT NO PUBLIC MARKET NOW EXISTS FOR THE SHARES AND THAT
THERE IS NO ANTICIPATED FUTURE PUBLIC MARKET FOR THE SHARES.
3.5 Restricted Securities. Investor understands that the Shares to be
purchased hereunder are characterized as "restricted securities" under the
federal and state securities laws inasmuch as they will be acquired from the
Company in a transaction not involving a public offering and that under such
laws and applicable regulations such securities may not be resold without
registration under the Act and applicable state securities laws or pursuant to
an exemption therefrom. In this connection, Investor represents that Investor is
familiar with Rule 144 promulgated under the Act ("Rule 144") and understands
the resale limitations imposed thereby. Investor is aware that an investment in
non-publicly traded securities such as the Shares is nonmarketable,
nontransferable and will require Investor's capital to be invested for an
indefinite period of time, possibly without return. Investor has no need for
liquidity in this investment, has the ability to bear the economic risk of this
investment, and can afford a complete loss of the entire purchase price paid for
the Shares.
3.6 No Disposition During First Year. Investor understands that the Shares
to be purchased hereunder may not be sold, transferred or disposed of for one
year after the Closing Date. Investor understands that, pursuant to Rule 144,
affiliates (as "affiliate" is defined in Rule 144) and non-affiliates may resell
the Shares only after holding such securities for at least one year, subject to
certain sales volume limitations and other requirements contained in Rule 144.
Investor further understands that the requirements of Rule 144 may change prior
to Investor selling any Shares and that the Company has provided no assurance
that the sale of any such securities will be eligible for resale pursuant to
Rule 144 under any particular circumstances.
3.7 Further Limitations on Disposition. Without in any way limiting the
representations set forth above is this Section 3, Investor further agrees not
to make any disposition of all or any portion of the Shares purchased hereunder
unless:
(i) There is then in effect a registration statement under the Act and
applicable state securities laws covering such proposed disposition and such
disposition is made in accordance with such registration statement;
(ii) Investor shall have (a) notified the Company of the proposed
disposition and shall have furnished the Company with a detailed statement of
the circumstances surrounding the proposed disposition, and (b) furnished the
Company with evidence including an opinion of counsel, reasonably satisfactory
to the Company, that such disposition will not require registration of such
Shares or shares under the Act; or
(iii) The disposition is pursuant to Rule 144.
3.8 Legends. It is understood that the Shares purchased hereunder have not
been registered under the Act and that Common Stock certificates evidencing said
Shares may bear one or all of the following legends:
(i) "The securities evidenced hereby have not been registered under the
Securities Act of 1933, as amended, or any state securities laws. They
may not be sold, offered for sale, pledged or hypothecated in the
absence of a registration statement in effect with respect to the
securities under such Act and any applicable state securities laws or
an opinion of counsel satisfactory to the Company that such
registration is not required or unless sold pursuant to Rule 144 of
such Act."
(ii) Any legend required by any applicable state securities laws.
3.9 No Preemptive Rights or Anti-dilution Protection. Investor understands
that Investor will not be entitled to any anti-dilution protection. Investor
understands that the Company may periodically issue additional Common Stock or
Preferred Stock or other equity or debt securities of the Company, and that
Investor has no right to participate in any such future securities offering by
the Company.
3.10 Investor's Principal Residence. Investor's principal residence is as
indicated on the signature page of this Agreement.
3.11 Accredited Investor. Investor is an "accredited investor" within the
meaning of Securities and Exchange Commission Rule 501 or Regulation D, as
presently in effect.
Section 4
Conditions of Investor's Obligations at Closing
The obligations of Investor under Sections 1.1 and 1.2 hereof are
subject to the fulfillment on or before the Closing of each of the following
conditions:
4.1 Representations and Warranties. The representations and warranties of
the Company contained in Section 2 hereof shall be true and correct on and as of
the Closing.
4.2 Subscription Agreement. The Subscription Agreement shall have been
fully completed and executed by Investor and accepted by the Company.
Section 5
Conditions of the Company's Obligations at Closing
The obligations of the Company under this Agreement are subject to the
fulfillment on or before the Closing of each of the following conditions by the
undersigned Investor:
5.1 Representations and Warranties. The representations
and warranties of the undersigned Investor contained in Section 3 hereof shall
be true on and as of the Closing.
5.2 Payment of Aggregate Purchase Price. The undersigned Investor shall
have delivered the Aggregate Purchase Price for the Shares as specified in
Sections 1.1 and 1.2 hereof.
5.3 Subscription Agreement. The Subscription Agreement shall have been
completed, executed and delivered by the undersigned Investor in form and
substance satisfactory to the Company in its sole discretion.
5.4 Delivery of Notes. The Company shall, within five (5) days after the
Closing, deliver to Investor a Common Stock certificate evidencing the Shares
purchased.
Section 6
Miscellaneous
6.1 Survival of Warranties. The warranties, representations and covenants
of the Company and Investor contained in or made pursuant to this Agreement
shall survive the execution and delivery of this Agreement and the Closing and
shall in no way be affected by any investigation of the subject matter thereof
made by or on behalf of Investor or the Company.
6.2 Successors and Assigns. Except as otherwise provided herein, the terms
and conditions of this Agreement shall inure to the benefit of and be binding
upon the respective successors and assigns of the parties (including transferees
of any Shares). Nothing in this Agreement, express or implied, is intended to
confer upon any party other than the parties hereto or their respective
successors and assigns any rights, remedies, obligations, or liabilities under
or by reason of this Agreement, except as expressly provided in this Agreement.
6.3 Governing Law. This Agreement and all matters related to or arising
under this Agreement shall be governed by and construed under the internal laws
of the State of California, regardless of any conflicts of law or choice of law
provisions of any jurisdiction.
6.4 Counterparts; Facsimile Signatures. This Agreement may be executed in
two or more counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument. This Agreement and
any other document or instrument relating hereto may be executed by a party's
signature transmitted by facsimile ("fax"), and copies of this Agreement and any
such document or instrument executed and delivered by means of faxed signatures
shall have the same force and effect as copies hereof executed and delivered
with original signatures. All parties hereto may rely upon faxed signatures as
if such signatures were originals. Any party executing and delivering this
Agreement and any such document or instrument by fax shall promptly thereafter
deliver a counterpart signature page of this Agreement and the fully executed
original or counterpart original of any such document or instrument containing
said party's original signature. All parties hereto agree that a faxed signature
may be introduced into evidence in any proceeding arising out of or related to
this Agreement or any such document or instrument as if it were an original
signature.
6.5 Titles and Subtitles. The titles and subtitles used in this Agreement
are used for convenience only and are not to be considered in construing or
interpreting this Agreement.
6.6 Notices. Unless otherwise provided, any notice required or permitted
under this Agreement shall be given in writing and shall be deemed effectively
given upon personal delivery to the party to be notified or five (5) days after
deposit with the United States Post Office, by registered or certified mail,
postage prepaid and addressed to the party to be notified at the address
indicated for such party on the signature page hereof, or at such other address
as such party may designate by ten (10) days' advance written notice to the
other parties.
6.7 Finder's Fee. Investor agrees to indemnify and to hold harmless the
Company from any liability for any commission or compensation in the nature of a
finders' fee (and the costs and expenses of defending against such liability or
asserted liability) for which Investor or any of its officers, partners,
employees, or representatives is responsible. The Company agrees to indemnify
and hold harmless Investor from any liability for any commission or compensation
in the nature of a finders' fee (and the costs and expenses of defending against
such liability or asserted liability) for which the Company or any of its
officers, employees or representatives is responsible.
6.8 Amendments and Waivers. Any term of this Agreement may be amended and
the observance of any term of this Agreement may be waived (either generally or
in a particular instance and either retroactively or prospectively), only with
the written consent of the Company and the holders of a majority of the Shares
issued and outstanding. Any amendment or waiver made in accordance with this
paragraph shall be binding upon each holder of any Shares purchased under this
Agreement at the time outstanding, each future holder of all such securities,
and the Company.
6.9 Severability. If any provision of this Agreement is held to be
unenforceable under applicable law, such provision shall be excluded from this
Agreement and the balance of the Agreement shall be interpreted as if such
provision were so excluded and shall be enforceable in accordance with its
terms.
6.10 No Waiver. The failure of any party in any instance to exercise any
right under this Agreement shall not constitute a waiver of any other right that
may subsequently arise under the provisions of this Agreement or any other
agreement between the parties. No waiver of any breach or condition of this
Agreement shall be deemed to be a waiver of any other or subsequent breach or
condition, whether of like or different nature.
6.11 Remedies for Breach. It is expressly acknowledged and agreed that
irreparable injury will be suffered if Investor breaches any of the provisions
of Sections 3.6 or 3.7 of this Agreement and that the injured parties shall be
entitled to the equitable remedies of specific performance and injunction for
the enforcement of such provisions, without the necessity of posting a bond or
security or showing actual damages. The availability of equitable remedies shall
not be deemed to limit any other right or remedy to which any party to this
Agreement would otherwise be entitled. In the event of any action to enforce
this Agreement, the prevailing party shall be entitled to recover all costs and
expenses incurred in connection with such enforcement, including but not limited
to attorneys' fees.
6.12 Entire Agreement. This Agreement and the documents referred to herein
constitute the entire agreement among the parties and no party shall be liable
or bound to any other party in any manner by any warranties, representations, or
covenants except as specifically set forth herein or therein.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
COMPANY:
ACCUIMAGE DIAGNOSTICS CORP.,
a Nevada corporation
By:
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Xx. Xxxx Xxxxxxx, Chief Executive Officer
Address: 000 Xxxxxxxxx Xxxxx
Xxxxx Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Telephone: (000) 000-0000
INVESTOR:
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Print Name of Investor
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Signature
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Print Name and Title (if an entity)
Address of Principal Residence:
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Telephone:
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EXHIBIT A
to
Stock Purchase Agreement
SUBSCRIPTION AGREEMENT
December 7, 2001
Accuimage Diagnostics Corp.
000 Xxxxxxxxx Xxxxx
Xxxxx Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Attn: Xx. Xxxx Xxxxxxx, Chief Executive Officer
To whom it may concern:
The undersigned investor ("Investor"), intending to be legally bound,
hereby agree with Accuimage Diagnostics Corp. as follows:
1. Subscription. Investor hereby subscribes to purchase (a) the number of
shares of Common Stock (the "Shares") of Accuimage Diagnostics Corp., a Nevada
corporation (the "Company"), indicated on the signature page of this
Subscription Agreement ("Agreement") at a per share price of $0.084.
2. Closing. Investor understands that the sale and purchase of the Shares
will be concluded as provided in and subject to the terms and conditions of the
Stock Purchase Agreement by and between Investor and the Company dated as of
December __, 2001 (the "Stock Purchase Agreement").
3. Modification. This Agreement may not be modified or waived except by an
instrument in writing signed by the party against which any modification or
waiver is sought to be enforced.
4. Assignability. Investor understands that Investor may not assign this
Agreement or Investor's rights, interests and obligations hereunder to any
individual or entity without the Company's express prior written consent, which
the Company may withhold in its sole and absolute discretion, and that any
purported assignment without such consent is void ab initio.
5. Accredited Investor. Investor hereby represents and warrants that
Investor is (check ALL appropriate boxes):
[ ] (i) A bank as defined in Section 3(a)(2) of the Securities Act of 1933
(the "1933 Act"), or a savings and loan association or other
institution as defined in Section 3(a)(5)(A) of the 1933 Act whether
acting in its individual or fiduciary capacity; a broker or dealer
registered pursuant to Section 15 of the Security Exchange Act of
1934;
[ ] (ii) An insurance company as defined in Section 2(13) of the 1933 Act; an
investment company registered under the Investment Company Act of 1940
or any business development company as defined in Section 2(a)(48) of
that Act;
[ ] (iii)A Small Business Investment Company licensed by the U.S. Small
Business Administration under Section 301(c) or (d) of the Small
Business Investment Act of 1958;
[ ] (iv) A plan established and maintained by a state, its political
subdivisions, or any agency or instrumentality of a state or its
political subdivisions, for the benefit of its employees, if such
plan has total assets in excess of U.S.$5,000,000;
[ ] (v) An employee benefit plan within the meaning of the Employee
Retirement Income Security Act of 1974 if the investment decision
is made by a plan fiduciary, as defined in Section 3(21) of such
Act, which is either a bank, savings and loan association,
insurance company, or registered investment adviser, or if the
employee benefit plan has total assets in excess of
U.S.$5,000,000 or, if a self-directed plan, with investment
decisions made solely by persons that are accredited investors;
[ ] (vi) A private business development company as defined in Section
202(a)(22) of the Investment Advisers Act of 1940;
[ ] (vii)An organization described in Section 501(c)(3) of the Internal
Revenue Code, corporation, Massachusetts or similar business
trust, limited liability company, or partnership, not formed for
the specific purpose of acquiring the securities offered, with
total assets in excess of U.S.$5,000,000;
[ ] (viii) A director, executive officer, or general partner of the issuer
of the securities being offered or sold, or a director, executive
officer, or general partner of a general partner of that issuer;
[ ] (ix) A natural person whose individual net worth, or joint net worth
with my spouse, exceeds U.S.$1,000,000;
[ ] (x) A natural person who had an individual income in excess of
U.S.$200,000 in each of the two most recent years or joint income
my spouse in excess of U.S.$300,000 in each of those years and
I/we have a reasonable expectation of reaching the same income
level in the current year;
[ ] (xi) A trust, with total assets in excess of U.S.$5,000,000, not
formed for the specific purpose of acquiring the securities
offered, whose purchase is directed by a person who has such
knowledge and experience in financial and business matters that
he or she is capable of evaluating the merits and risks of this
prospective investment; or
[ ] (xii)An entity in which all of the equity owners satisfy the
requirements of items (i), (ii), (iii), (iv), (v), (vi), (vii),
(viii), (ix), (x) and/or (xi) immediately above.
6. Date of Accredited Investor Qualification. The above representations and
warranties regarding Investor's Accredited Investor status are true and accurate
as of the date hereof and shall be true and accurate as of the closing of the
purchase of the Shares as "Closing" is defined in the Stock Purchase Agreement.
If in any respect such representations and warranties shall not be true and
accurate prior to or as of the Closing, Investor shall give immediate notice of
such fact to the Company by facsimile to (000) 000-0000 to the attention of Xx.
Xxxx Xxxxxxx, Chief Executive Officer of the Company, with an additional copy of
that notice sent by overnight delivery to Xx. Xxxx Xxxxxxx at 000 Xxxxxxxxx
Xxxxxxxxx, Xxxxx Xxx Xxxxxxxxx, Xxxxxxxxxx 00000.
7. Miscellaneous.
Investor understands that this Agreement and any and all matters related to
or arising under this Agreement shall be governed by the internal laws of the
State of California, without regard to any conflicts of law or choice of law
provisions of any jurisdiction.
Investor's representations and warranties made in this Agreement will
survive execution and delivery of the Stock Purchase Agreement and the issuance
and sale of the Shares thereunder.
This Agreement may be executed in two or more counterparts, each of which
shall be deemed an original, but all of which together shall constitute one and
the same instrument. This Agreement and any other document or instrument
relating hereto may be executed by a party's signature transmitted by facsimile
("fax"), and copies of this Agreement and any such document or instrument
executed and delivered by means of faxed signatures shall have the same force
and effect as copies hereof executed and delivered with original signatures. All
parties hereto may rely upon faxed signatures as if such signatures were
originals. Any party executing and delivering this Agreement and any such
document or instrument by fax shall promptly thereafter deliver a counterpart
signature page of this Agreement and the fully executed original or counterpart
original of any such document or instrument containing said party's original
signature. All parties hereto agree that a faxed signature may be introduced
into evidence in any proceeding arising out of or related to this Agreement or
any such document or instrument as if it were an original signature.
[Signature page follows.]
Please indicate your agreement with the foregoing by signing and completing
the required information in the places indicated below and returning a copy of
this letter to Accuimage Diagnostics Corp. at the address stated above.
Very truly yours,
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[Print Name of Investor]
By:
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Name:
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Its:
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Xxxxxx Xxxxxxx
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Xxxx, Xxxxx, Zip Code
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Tax ID Number
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Number of Shares Subscribed For
ACCEPTED AND AGREED TO:
ACCUIMAGE DIAGNOSTICS CORP.,
a Nevada corporation
By:
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Xx. Xxxx Xxxxxxx,
Chief Executive Officer
Date: _____________________, 2001
EXHIBIT A
to
Stock Purchase Agreement
