EXHIBIT 10.8
COMMON STOCK PURCHASE AGREEMENT
This common stock purchase agreement (the "agreement") is made as of August
20th, 2004 , between AccuImage Diagnostics Corporation, a Nevada Corporation
(the "Company"), and Xxxxx Xxxxxx (the "Purchaser"):
RECITALS:
WHEREAS ,the Company has authorized the issuance and sale pursuant to the terms
and conditions hereof of 6,250,000 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 any terms and conditions set forth in this agreement,
the Purchaser agrees to Purchase from the Company 6,250,000 shares of
Common Stock in consideration for a purchase price (the "Purchase
Price") of US $0.04 per share.
2. CLOSING DATE; DELIVERY. The closing of the purchase and the sale of
the Shares shall be held at the offices of the Company, 000 Xxxxxx Xxx
Xxxx., Xxxxx 000, Xxxxx Xxx Xxxxxxxxx 00000, on September 25, 2004 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 shall deliver to the 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
qualifications, 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 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
non-assessable 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 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 1934 (the "1934 Act"); the Company's 2003 and
2004 Forms 10-KSB, Forms 14A, Forms 10-QSB, Forms 8-K have been
filed if required with the US Securities and Exchange Commission
(the "SEC") 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 therefore or threat thereof), which, either
in any case or in the aggregate, might result in 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 designation, declaration, or filing with, any government
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 encumbrances;
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 a consolidated balance sheet within
30 days and other pertinent financial data.
4. REPRESENTATIONS AND WARRANTIES OF THE PURCHASER. The Purchaser
represents and warrants 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 no federal or state agency has passed
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 furnished
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 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, acknowledgements,
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. 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 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, and 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 no 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, ASSIGNEMENT 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
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 requirement 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 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. CONDTIONS PRECEDENT TO THE PURCHASER'S OBLIGATIONS. 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.
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 the condition, financial or otherwise, or
in the earnings, business or operations, or in or affecting
the properties of the Company, or 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 the 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 to the trading generally
on or by the New York Stock Exchange or NASDAQ or 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 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, by true and correct at
the Closing Date.
7. FEES AND EXPENSES. 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 REPRESENTATIONS, WARRANTIES, ETC. The respective
agreements, representations, warranties, indemnities, and other
statements made by or on behalf of the Company and the 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 agreement 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 confirmed to the Purchaser
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:
AccuImage Diagnostic Corp.
000 Xxxxxx Xxxxx Xxxx., Xxxxx 000
Xxxxx Xxx Xxxxxxxxx, XX 00000
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.
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 Diagnostic Corp.
By: /s/ X. XXXXXX
__________________________
X. Xxxxxx
Chairman of the Board
By: /s/ XXXXXX XXXXXXX
__________________________
Xxxxxx Xxxxxxx
Secretary
PURCHASER:
By: /s/ X. XXXXXX
__________________________
Avi Faliks, Ph.D.
00 Xxxxxx Xxxxx
Xxxxxxxxx, XX 00000
