EXHIBIT 10.1
FORM OF SUBSCRIPTION AGREEMENT BETWEEN IMAGING
DIAGNOSTIC SYSTEMS, INC AND XXXXXX XXXXXXXXX
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IMAGING DIAGNOSTIC SYSTEMS, INC.
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Maximum Offering: $200,000
This offering consists of 500,000 shares of the Company's Common Stock.
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SUBSCRIPTION AGREEMENT
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SUBSCRIPTION PROCEDURES
The Common Stock, no par value, of Imaging Diagnostic Systems, Inc.
(the "Company" or "Seller") is being offered for $.40 per share (the "Shares").
The Shares will be transferable to the extent that any such transfer is
permitted by law. This offering is being made in accordance with the exemption
from registration under Section 4(2) of the Securities Act of 1933, as amended
(the "Act") and Rule 506 of Regulation D promulgated under the Act (the
"Regulation D Offering").
The Investor Questionnaire is designed to enable the Investor
to demonstrate the minimum legal requirements under federal and state securities
laws to purchase the Shares. The Signature Page for the Investor Questionnaire
and the Subscription Agreement contain representations relating to the
subscription.
Also included is an Internal Revenue Service Form W-9: "Request for Taxpayer
Identification Number and Certification" for U.S. citizens or residents of the
U.S. for U.S. federal income tax purposes only. (Foreign investors should
consult their tax advisors regarding the need to complete Internal Revenue
Service Form W-9 and any other forms that may be required).
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If you are a foreign person or foreign entity, you may be subject to a
withholding tax equal to 30% of any dividends paid by the Company. In order to
eliminate or reduce such withholding tax you may submit a properly executed
I.R.S. Form 4224 (Exemption from Withholding of Tax on Income Effectively
Connected with the Conduct of a Trade or Business in the United States) or
I.R.S. Form 1001 (Ownership Exemption or Reduced Trade Certificate), claiming
exemption from withholding or eligibility for treaty benefits in the form of a
lower rate of withholding tax on interest or dividends.
Payment must be made by wire transfer as provided below:
Immediately available funds should be sent via wire transfer to:
First Union National Bank of Florida-Jacksonville Florida
1502 Xxx Xxxx Xxxxxx Xxxxx
Xxx Xxxx Xxxxxx, Xxxxxxx 00000
ABA #: 0630-00021
Account #: 2090000431548
Xxxx.Xxxx: Imaging Diagnostic Systems, Inc.
SUBSCRIPTION AGREEMENT
To: IMAGING DIAGNOSTIC SYSTEMS, INC.
This Subscription Agreement is made between IMAGING DIAGNOSTIC SYSTEMS,
INC., a Florida corporation, (the "Company" or "Seller"), and the undersigned
prospective purchaser ("Purchaser") who is subscribing hereby for the Company's
Common Stock, no par value, (the "Shares"), at $.40 per share. The Shares being
offered will be separately transferable to the extent that any such transfer is
permitted by law. This subscription is submitted to Purchaser in accordance with
and subject to the terms and conditions described in this Subscription Agreement
dated May 11, 1998, together with any Exhibits thereto, relating to an offering
(the "Offering") of 500,000 Shares. The Offering comprises (i) an offering of
the Shares to accredited investors (the "Regulation D Offering") in accordance
with the exemption from registration under Section 4(2) of the Securities Act of
1933, as amended (the "Act"), and Rule 506 of Regulation D promulgated under the
Act ("Regulation D").
1. SUBSCRIPTION.
(a) The undersigned hereby irrevocably subscribes for and agrees to
purchase 500,000 Shares at a purchase price of $.40 per Share.
2. REPRESENTATIONS AND WARRANTIES.
The undersigned hereby represents and warrants to, and agrees with, the
Company as follows:
(a) The undersigned has been furnished with, and understands the terms
of the Offering. With respect to tax and other economic considerations involved
in his investment, the undersigned is not relying on the Company. The
undersigned has carefully considered and has, to the extent the undersigned
believes such discussion necessary, discussed with the undersigned's
professional legal, tax, accounting and financial advisors the
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suitability of an investment in the Company, by purchasing the Shares, for the
undersigned's particular tax and financial situation and has determined that
the investment being made by the undersigned is a suitable investment for the
undersigned.
(b) The undersigned acknowledges that all documents, records, and
books pertaining to this investment which the undersigned has requested have
been made available for inspection by the undersigned.
(c) The undersigned has had a reasonable opportunity to ask questions
of and receive answers from a person or persons acting on behalf of the
Company concerning the Offering and all such questions have been answered to
the full satisfaction of the undersigned.
(d) The undersigned will not sell or otherwise transfer the Shares
without registration under the Act or applicable state securities laws or an
exemption therefrom. The Shares have not been registered under the Act or
under the securities laws of certain states.
Upon written notice at any time, beginning July 8, 1998 and ending
May 13, 1998 , from the Holder that it contemplates the transfer of all or any
of its Shares under such circumstances that a public offering, within the
meaning of the Act, of the Shares will be involved, the Company, as promptly
as possible after the receipt of such notice, shall file, not more than once
at the sole cost of the Company, a registration statement or, if available, a
Notification under Regulation A under the Act, with respect to the offering
and sale or other disposition of the Shares with respect to which it shall
have received such notice. Within 10 days after receiving any such notice, the
Company shall give notice to the Holder that the Company is proceeding with
such registration statement or Notification.
The Holder shall promptly supply the Company with all information
necessary to effectuate such registration. The Company shall furnish to
Purchaser such number of prospectuses and other documents incidental to the
registration of the Shares of Common Stock, including any amendment of or
supplements thereto.
The undersigned represents that the undersigned is purchasing the Shares for the
undersigned's own account, for investment and not with a view to resale or
distribution except in compliance with the Act. The undersigned has not offered
or sold any portion of the Shares being acquired nor does the undersigned have
any present intention of dividing the Shares with others or of selling,
distributing or otherwise disposing of any portion of the Shares either
currently or after the passage of a fixed or determinable period of time or upon
the occurrence or non-occurrence of any predetermined event or circumstance in
violation of the Act. Except as provided herein, the Company has no obligation
to register the Shares.
(e) The undersigned recognizes that an investment in the Shares
involves substantial risks, including loss of the entire amount of such
investment.
(f) Legends (i) The undersigned acknowledges that each certificate
representing the Shares unless registered , shall be stamped or otherwise
imprinted with a legend substantially in the following form:
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THE SECURITIES EVIDENCED BY THIS CERTIFICATE MAY NOT BE OFFERED OR SOLD,
TRANSFERRED, PLEDGED, HYPOTHECATED OR OTHERWISE DISPOSED OF EXCEPT (i)
PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF
1933, AS AMENDED, (ii) TO THE EXTENT APPLICABLE, RULE 144 UNDER THE ACT (OR
ANY SIMILAR RULE UNDER SUCH ACT RELATING TO THE DISPOSITION OF SECURITIES), OR
(iii) IF AN EXEMPTION FROM REGISTRATION UNDER SUCH ACT IS AVAILABLE.
NOTWITHSTANDING THE FOREGOING, THE COMMON STOCK ARE ALSO SUBJECT TO THE
REGISTRATION RIGHTS SET FORTH IN THAT CERTAIN SUBSCRIPTION AGREEMENT BY AND
BETWEEN THE HOLDER HEREOF AND THE COMPANY, A COPY OF EACH IS ON FILE AT THE
COMPANY'S PRINCIPAL EXECUTIVE OFFICE.
(g) The undersigned acknowledges and agrees that it shall not be
entitled to seek any remedies with respect to the Offering from any party
other than the Company.
(h) This Subscription Agreement is executed and delivered on behalf
of a corporation, and: (i) such corporation has the full legal right and power
and all authority and approval required (a) to execute and deliver, or
authorize execution and delivery of, this Subscription Agreement and all other
instruments (including, without limitation, the Registration Rights Agreement)
executed and delivered by or on behalf of such corporation in connection with
the purchase of the Shares and (b) to purchase and hold the Shares: (ii) the
signature of the party signing on behalf of such corporation is binding upon
such corporation; and (iii) such corporation has not been formed for the
specific purpose of acquiring the Shares, unless each beneficial owner of such
entity is qualified as an accredited investor within the meaning of Rule
501(a) of Regulation D and has submitted information substantiating such
individual qualification.
(i) The undersigned shall indemnify and hold harmless the Company and
each stockholder, executive, employee, representative, affiliate, officer,
director or control person of the Company, who is or may be a party or is or
may be threatened to be made a party to any threatened, pending or
contemplated action, suit or proceeding, whether civil, criminal,
administrative or investigative, by reason of or arising from any actual or
alleged misrepresentation or misstatement of facts or omission to represent or
state facts made or alleged to have been made by the undersigned to the
Company or omitted or alleged to have been omitted by the undersigned,
concerning the undersigned or the undersigned's subscription for and purchase
of the Shares or the undersigned's authority to invest or financial position
in connection with the Offering, including, without limitation, any such
misrepresentation, misstatement or omission contained in this Subscription
Agreement, the Questionnaire or any other document submitted by the
undersigned, against losses, liabilities and expenses for which the Company,
or any stockholder, executive, employee, representative, affiliate, officer,
director or control person of the Company has not otherwise been reimbursed
(including attorneys' fees and disbursements, judgments, fines and amounts
paid in settlement) actually and reasonably incurred by the Company, or such
officer, director stockholder, executive, employee, representative, affiliate
or control person in connection with such action, suit or proceeding.
(j) The undersigned is not subscribing for the Shares as a result of,
or pursuant to, any advertisement, article, notice or other communication
published in any newspaper, magazine or similar media or broadcast over
television or radio or presented at any seminar or meeting.
(k) The undersigned or the undersigned's representatives, as the case
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may be, has such knowledge and experience in financial, tax and business
matters so as to enable the undersigned to utilize the information made
available to the undersigned in connection with the Offering to evaluate the
merits and risks of an investment in the Shares and to make an informed
investment decision with respect thereto.
(l) The Purchaser is purchasing the Shares for its own account for investment,
and not with a view toward the resale or distribution thereof. Purchaser is
neither an underwriter of, nor a dealer in, the Shares and is not
participating in the distribution or resale of the Shares.
3. SELLER REPRESENTATIONS.
(a) Concerning the Securities.The issuance, sale and delivery of the
Shares have been duly authorized by all required corporate action on the part
of the Company, and when issued, sold and delivered in accordance with the
terms hereof and thereof for the consideration expressed herein and therein,
will be duly and validly issued and enforceable in accordance with their
terms, subject to the laws of bankruptcy and creditors' rights generally.
(b) Authority to Enter Agreement. This Agreement has been duly
authorized, validly executed and delivered on behalf of the Company and is a
valid and binding agreement in accordance with its terms, subject to general
principles of equity and to bankruptcy or other laws affecting the enforcement
of creditors' rights generally.
(c) Non-contravention. The execution and delivery of this Agreement
and the consummation of the issuance of the Shares, and the transactions
contemplated by this Agreement do not and will not conflict with or result in
a breach by the Company of any of the terms or provisions of, or constitute a
default under, the articles of incorporation or by-laws of The Company, or any
indenture, mortgage, deed of trust, or other material agreement or instrument
to which the Company is a party or by which it or any of its properties or
assets are bound, or any existing applicable law, rule, or regulation of the
United States or any State thereof or any applicable decree, judgment, or
order of any Federal or State court, Federal or State regulatory body,
administrative agency or other United States governmental body having
jurisdiction over the Company or any of its properties or assets.
(d) Company Compliance. The Company represents and warrants that the
Company and its subsidiaries are: (i) in full compliance, to the extent
applicable, with all reporting obligations under either Section 13(a) or 15(d)
of the Securities Exchange Act of 1934, as amended; (ii) not in violation of
any term or provision of its article of incorporation or by-laws; (iii) not in
default in the performance or observance of any obligation, agreement or
condition contained in any bond, debenture, note or any other evidence of
indebtedness or in any mortgage, deed of trust, indenture or other instrument
or agreement to which they are a party, either singly or jointly, by which it
or any of their property is bound or subject. Furthermore, the Company is not
aware of any other facts which it has not disclosed which could have a
material adverse effect on the business, condition (financial or otherwise),
operations, earnings, performance, properties or prospects of the Company and
its subsidiaries taken as a whole.
(e) Pending Litigation. There is (i) no action, suit or proceeding
before or by any court, arbitrator or governmental body now
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pending or, to the knowledge of the Company, threatened or contemplated to
which the Company or any of its subsidiaries is or may be a party or to which
the business or property of the Company or any of its subsidiaries is or may
be bound or subject, (ii) no law, statute, rule, regulation, order or
ordinance that has been enacted, adopted or issued by any governmental body or
that, to the knowledge of the Company, has been proposed by any governmental
body materially adversely affecting the Company or any of its subsidiaries,
(iii) no injunction, restraining order or order of any nature by a federal,
state or foreign court or governmental body of competent jurisdiction to which
the Company or any of its subsidiaries is subject issued that, in the case of
clauses (i), (ii) and (iii) above, (x) is reasonably likely to, singly or in
the aggregate, result in a material adverse effect on the business, condition
(financial or otherwise), operations, earnings, performance, properties or
prospects of the Company effect, and its subsidiaries taken as a whole or (y)
would interfere with or adversely affect the issuance of the Shares reasonably
likely to render this Subscription Agreement or the Shares, or any portion
thereof, invalid or unenforceable.
(f) Issuance of the Shares. No action has been taken and no law,
statute, rule, regulation, order or ordinance has been enacted, adopted or
issued by any governmental body that prevents the issuance of the Shares no
injunction, restraining order or order of any nature by a federal or state
court of competent jurisdiction has been issued that prevents the issuance of
the Shares or suspends the sale of the Shares in any jurisdiction; and no
action, suit or proceeding is pending against or, to the best knowledge of the
Company, threatened against or affecting, the Company, any of its subsidiaries
or, to the best knowledge of the Company, before any court or arbitrator or
any Governmental Body that, if adversely determined, would prohibit, interfere
with or adversely affect the issuance or marketability of the Shares or render
the Subscription Agreement or the Shares , or any portion thereof, invalid or
unenforceable.
(g) The Company shall indemnify and hold harmless the Purchaser and
each stockholder, executive, employee, representative, affiliate, officer,
director or control person of the Purchaser, who is or may be a party or is or
may be threatened to be made a party to any threatened, pending or
contemplated action, suit or proceeding, whether civil, criminal,
administrative or investigative, by reason of or arising from any actual or
alleged misrepresentation or misstatement of facts or omission to represent or
state facts made or alleged to have been made by the Company to the Purchaser
or omitted or alleged to have been omitted by the Company, concerning the
Purchaser or the Purchaser's subscription for and purchase of the Shares or
the Purchaser 's authority to invest or financial position in connection with
the Offering, including, without limitation, any such misrepresentation,
misstatement or omission contained in this Subscription Agreement, the
Questionnaire or any other document submitted by the Company, against losses,
liabilities and expenses for which the Purchaser, or any stockholder,
executive, employee, representative, affiliate, officer, director or control
person of the Purchaser has not otherwise been reimbursed (including
attorneys' fees and disbursements, judgments, fines and amounts paid in
settlement) actually and reasonably incurred by the Purchaser, or such
officer, director stockholder, executive, employee, representative, affiliate
or control person in connection with such action, suit or proceeding.
(h) No Change. Other than filings required by the Blue Sky or federal
securities law, no consent, approval or authorization of or
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designation, declaration or filing with any governmental or other regulatory
authority on the part of the Company is required in connection with the valid
execution, delivery and performance of this Agreement. Any required
qualification or notification under applicable federal securities laws and
state Blue Sky laws of the offer, sale and issuance of the Shares, has been
obtained on or before the date hereof or will have been obtained within the
allowable period thereafter.
(i) True Statements. Neither this Agreement nor any of the
"Disclosure Documents", as hereinafter defined, contains any untrue statement
of a material fact or omits to state any material fact necessary in order to
make the statements contained herein or therein not misleading in the light of
the circumstances under which such statements are made. There exists no fact
or circumstances which, to the knowledge of the Company, materially and
adversely affects the business, properties or assets, or conditions, financial
or otherwise, of the Company, which has not been set forth in this
Subscription Agreement or disclosed in such documents.
(j) The Purchaser has been advised that the Company has not retained
any independent professionals to review or comment on this Offering or
otherwise protect the interests of the Purchaser. Although the Company has
retained its own counsel, neither such counsel nor any other firm, has acted
on behalf of the Purchaser, and the Purchaser should not rely on the Company's
legal counsel with respect to any matters herein described.
(k) There has never been represented, guaranteed, or warranted to the
undersigned by any broker, the Company, its officers, directors or agents, or
employees or any other person, expressly or by implication (i) the percentage
of profits and/or amount of or type of consideration, profit or loss to be
realized, if any, as a result of the Company's operations; and (ii) that the
past performance or experience on the part of the management of the Company,
or of any other person, will in any way result in the overall profitable
operations of the Company.
(l) Prior Shares Issued Under Regulation S or Regulation D. In the
past twelve months the Company raised $3,850,000 in Regulation S offerings of
which $1,640,000 remains unconverted. The Company has raised $4,500,000 in
Regulation D offerings in the past eighteen months of which the principal
amount of $4,500,000 remains unconverted.
(m) Current Authorized Shares. As of April 20, 1998, there were
48,000,000 authorized shares of Common Stock of which approximately 35,425,620
shares of Common Stock were issued and outstanding on a fully diluted basis
(n) Disclosure Documents. The Disclosure Documents are all the
documents (other than preliminary materials) that the Company has been
required to file with the Securities and Exchange Commission from December 31,
1996 to the date hereof. As of their respective dates, none of the Disclosure
Documents contained any untrue statement of a material fact or omitted to
state a material fact required to be stated therein or necessary in order to
make the statements therein, in light of the circumstances under which they
were made, not misleading, and no material event has occurred since the
Company's filing on Form 10-KSBA for the year ended December 31, 1996 which
could make any of the disclosures contained therein misleading. The financial
statements of the Company included in the Disclosure Documents have been
prepared in accordance with generally accepted accounting principles applied
on a consistent basis during the periods involved (except as may be indicated
in the notes thereto or, in the case of unaudited
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financial statements, subject only to normal recurring year-end audit
adjustments) and present fairly the consolidated financial position of the
Company and its consolidated subsidiaries as at the dates thereof and the
consolidated results of their operations and changes in financial position for
the periods then ended.
(o) Information Supplied. The information supplied by the Company to
Purchaser in connection with the offering of the Shares does not contain any
untrue statement of a material fact or omit to state a material fact necessary
to make the statements, in the light of the circumstances in which they were
made, not misleading. There exists no fact or circumstances which, to the
knowledge of the Company, materially and adversely affects the business,
properties, assets, or conditions, financial or otherwise, of the Company
which has not been set forth in this Agreement or disclosed in such documents.
(p) Non-contravention. The execution and delivery of this Agreement
by the Company, the issuance of the Shares, and the consummation by the
Company of the other transactions contemplated by this Agreement, do not and
will not conflict with or result in a breach by the Company of any of the
terms or provisions of, or constitute a default under, the (i) certificate of
incorporation or by-laws of the Company, (ii) any indenture, mortgage, deed of
trust, or other material agreement or instrument to which the Company is a
party or by which it or any of its properties or assets are bound, (iii) any
material existing applicable law, rule, or regulation or any applicable
decree, judgment, or (iv) order of any court, United States federal or state
regulatory body, administrative agency, or other governmental body having
jurisdiction over the Company or any of its properties or assets, except such
conflict, breach or default which would not have a material adverse effect on
the transactions contemplated herein.
(q) No Default. Except as set forth in the Company's Disclosure
Documents, the Company is not in default in the performance or observance of
any material obligation, agreement, covenant or condition contained in any
indenture, mortgage, deed of trust or other material instrument or agreement
to which it is a party or by which it or its property is bound, and neither
the execution of, nor the delivery by the Company of, nor the performance by
the Company of its obligations under, this Agreement, will conflict with or
result in the breach or violation of any of the terms or provisions of, or
constitute a default or result in the creation or imposition of any lien or
charge on any assets or properties of the Company under, (i) any material
indenture, mortgage, deed of trust or other material agreement applicable to
the Company or instrument to which the Company is a party or by which it is
bound, (ii) any statute applicable to the Company or its property, (iii) the
Certificate of Incorporation or By-Laws of the Company, (iv) any decree ,
judgment, order, rule or regulation of any court or governmental agency or
body having jurisdiction over the Company regulation of any court or
governmental agency or body having jurisdiction over the Company or its
properties, or (v) the Company's listing agreement for its Common Stock.
(r) Registration Rights Upon written notice at any time, beginning
July 8, 1998 and ending May 13, 1998, from the Holder that it contemplates the
transfer of all or any of its Shares under such circumstances that a public
offering, within the meaning of the Act, of the Shares will be involved, the
Company, as promptly as possible after the receipt of such notice, shall file,
not more than once at the sole cost of the Company, a registration statement
or, if available, a Notification under Regulation A under the Act, with
respect to the offering and sale or other
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disposition of the Shares with respect to which it shall have received such
notice. Within 10 days after receiving any such notice, the Company shall give
notice to the Holder that the Company is proceeding with such registration
statement or Notification.
The Holder shall promptly supply the Company with all information necessary to
effectuate such registration. The Company shall furnish to Purchaser such number
of prospectuses and other documents incidental to the registration of the Shares
of Common Stock, including any amendment of or supplements thereto.
(s) Use of Proceeds. The Company represents that the net proceeds of
this offering will be used for working capital.
4. UNDERSTANDINGS.
The undersigned understands, acknowledges and agrees with the Company
as follows:
FOR ALL SUBSCRIBERS:
(a) This Subscription may be rejected, in whole or in part, by the
Company in its sole and absolute discretion at any time before the date set
for closing unless the Company has given notice of acceptance of the
undersigned's subscription by signing this Subscription Agreement.
(b) No U.S. federal or state agency or any agency of any other
jurisdiction has made any finding or determination as to the fairness of the
terms of the Offering for investment nor any recommendation or endorsement of
the Shares.
(c) The representations, warranties and agreements of the undersigned
and the Company contained herein and in any other writing delivered in
connection with the transactions contemplated hereby shall be true and correct
in all material respects on and as of the date of the sale of the Shares and
shall survive the execution and delivery of this Subscription Agreement and
the purchase of the Shares.
(d) IN MAKING AN INVESTMENT DECISION, PURCHASERS MUST RELY ON THEIR
OWN EXAMINATION OF THE COMPANY AND THE TERMS OF THE OFFERING, INCLUDING THE
MERITS AND RISKS INVOLVED. THE SHARES HAVE NOT BEEN RECOMMENDED BY ANY FEDERAL
OR STATE SECURITIES COMMISSION OR REGULATORY AUTHORITY. FURTHERMORE, THE
FOREGOING AUTHORITIES HAVE NOT CONFIRMED THE ACCURACY OR DETERMINED THE
ADEQUACY OF THE MEMORANDUM OR THIS DOCUMENT. ANY REPRESENTATION TO THE
CONTRARY IS A CRIMINAL OFFENSE.
(e) The Regulation D Offering is intended to be exempt from
registration under the Securities Act by virtue of Section 4(2) of the
Securities Act and the provisions of Regulation D thereunder, which is in part
dependent upon the truth, completeness and accuracy of the statements made by
the undersigned herein and in the Questionnaire.
(f) It is understood that in order not to jeopardize the Offering's
exempt status under Section 4(2) of the Securities Act and Regulation D, any
transferee may, at a minimum, be required to fulfill the investor suitability
requirements thereunder.
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(g) THE SHARES MAY NOT BE TRANSFERRED, RESOLD OR OTHERWISE DISPOSED
OF EXCEPT AS PERMITTED UNDER THE SECURITIES ACT AND APPLICABLE STATE
SECURITIES LAWS, PURSUANT TO REGISTRATION OR EXEMPTION THEREFROM. PURCHASERS
SHOULD BE AWARE THAT THEY WILL BE REQUIRED TO BEAR THE FINANCIAL RISKS OF THIS
INVESTMENT FOR AN INDEFINITE PERIOD OF TIME.
(h) NASAA UNIFORM LEGEND
IN MAKING AN INVESTMENT DECISION INVESTORS MUST RELY ON THEIR OWN
EXAMINATION OF THE PERSON OR ENTITY CREATING THE SECURITIES AND THE TERMS OF
THE OFFERING, INCLUDING THE MERITS AND RISKS INVOLVED. THESE SECURITIES HAVE
NOT BEEN RECOMMENDED BY ANY FEDERAL OR STATE SECURITIES COMMISSION OR
REGULATORY AUTHORITY. FURTHERMORE, THE FOREGOING AUTHORITIES HAVE NOT
CONFIRMED THE ACCURACY OR DETERMINED THE ADEQUACY OF THIS DOCUMENT. ANY
REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE. THESE SECURITIES ARE
SUBJECT TO RESTRICTIONS ON TRANSFERABILITY AND RESALE AND MAY NOT BE
TRANSFERRED OR RESOLD EXCEPT AS PERMITTED UNDER THE SECURITIES ACT OF 1933 AND
THE APPLICABLE STATE SECURITIES LAWS, PURSUANT TO REGISTRATION OR EXEMPTION
THEREFROM. INVESTORS SHOULD BE AWARE THAT THEY WILL BE REQUIRED TO BEAR THE
FINANCIAL RISKS OF THIS INVESTMENT FOR AN INDEFINITE PERIOD OF TIME.
(i) The undersigned acknowledges and is aware that except for the
three day rescission rights provided under Florida law, the undersigned is
entitled to cancel, terminate or revoke this subscription, and any agreements
made in connection herewith shall survive my death or disability.
(j) The undersigned has had the opportunity to ask questions of, and
receive answers from management of the Company regarding the terms and
conditions of this Subscription Agreement, and the transactions contemplated
thereby, as well as the affairs of the Company and related matters.
(k) The undersigned understands that he may have access to whatever
additional information concerning the Company, its financial condition, its
business, its prospects, its management, its capitalization, and other similar
matters that he may desire, provided that the Company can acquire such
information without unreasonable effort or expense. In addition, as required
by Section 517.061(11)(a)(3), Florida Statutes, and Rule 3E-500.05(a)
thereunder, the undersigned understands that he may have, at the offices of
the Company, at any reasonable hour, after reasonable prior notice, access to
the materials set forth in the Rule which the Company can obtain without
unreasonable effort or expense.
(l) The undersigned has had the opportunity to obtain additional
information necessary to verify the accuracy of the information referred to
above.
5. SUBMISSION TO JURISDICTION
(a) Forum Selection and Consent to Jurisdiction. Any litigation based
thereon, or arising out of, under, or in connection with, this Agreement or
any course of conduct, course of dealing, statements (whether oral or written)
or actions of the Company or Purchaser shall be brought and maintained
exclusively in the courts of the State of Florida. The Company and Purchaser
hereby expressly and irrevocably submits to the jurisdiction of the state and
federal Courts of the State of Florida for the purpose of any such litigation
as set forth above and irrevocably agrees to be bound by any final judgment
rendered thereby in connection with such litigation. The
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Company and Purchaser further irrevocably consents to the service of process
by registered mail, postage prepaid, or by personal service within or without
the State of Florida. The Company and Purchaser hereby expressly and
irrevocably waives, to the fullest extent permitted by law, any objection
which it may have or hereafter may have to the laying of venue of any such
litigation brought in any such court referred to above and any claim that any
such litigation has been brought in any inconvenient forum. To the extent that
the Company or Purchaser have or hereafter may acquire any immunity from
jurisdiction of any court or from any legal process (whether through service
or notice, attachment prior to judgment, attachment in aid of execution or
otherwise) with respect to itself or its property the Company and Purchaser
hereby irrevocably waive such immunity in respect of their obligations under
this Agreement and the other loan documents.
(b) Waiver of Jury Trial. The Purchaser and the Company hereby
knowingly, voluntarily and intentionally waive any rights they may have to a
trial by jury in respect of any litigation based hereon, or arising out of,
under, or in connection with, this agreement, or any course of conduct, course
of dealing, statements (whether oral or written) or actions of the Purchaser or
the Company. The Company acknowledges and agrees that it has received full and
sufficient consideration for this provision and that this provision is a
material inducement for the Purchaser entering into this agreement.
(c) Submission To Jurisdiction. Any legal action or proceeding in
connection with this Agreement or the performance hereof may be brought in the
state and federal courts located in Florida, and the parties hereby irrevocably
submit to the exclusive jurisdiction of such courts for the purpose of any such
action or proceeding.
6. MISCELLANEOUS.
(a) All pronouns and any variations thereof used herein shall be
deemed to refer to the masculine, feminine, impersonal, singular or plural, as
the identity of the person or persons may require.
(b) Neither this Subscription Agreement nor any provision hereof
shall be waived, modified, changed, discharged, terminated, revoked or
canceled, except by an instrument in writing signed by the party effecting the
same against whom any change, discharge or termination is sought.
(c) Notices required or permitted to be given hereunder shall be in
writing and shall be deemed to be sufficiently given when personally delivered
or sent by registered mail, return receipt requested, addressed: (i) if to the
Company, at its executive offices or (ii) if to the undersigned, at the
address for correspondence set forth in the Questionnaire, or at such other
address as may be specified by written notice given in accordance with this
paragraph.
(d) This Subscription Agreement shall be enforced, governed and
construed in all respects in accordance with the laws of the State of Florida,
as such laws are applied by Florida courts to agreements entered into, and to be
performed in, Florida by and between residents of Florida, and shall be binding
upon the undersigned, the undersigned's heirs, estate, legal representatives,
successors and assigns and shall inure to the benefit of the Company, its
successors and assigns. If any provision of this Subscription Agreement is
invalid or unenforceable under any applicable statue or rule of law, then such
provisions shall be deemed inoperative to
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the extent that it may conflict therewith and shall be deemed modified to
conform with such statute or rule of law. Any provision hereof that may prove
invalid or unenforceable under any law shall not affect the validity or
enforceability of any other provision hereof.
(e) This Subscription Agreement constitutes the entire agreement
between the parties hereto with respect to the subject matter hereof and may be
amended only by a writing executed by both parties hereto.
(f) This Agreement may be executed in counterparts, and the facsimile
transmission of an executed counterpart to this Agreement shall be effective as
an original.
7. SIGNATURE.
The signature of this Subscription Agreement is contained as part of
the applicable Subscription Package, entitled "Signature Page."
IMAGING DIAGNOSTIC SYSTEMS, INC.
CORPORATION QUESTIONNAIRE
Investor Name:
The information contained in this Questionnaire is being furnished in
order to determine whether the undersigned CORPORATION'S Subscription to
purchase the Shares described in the Subscription Agreement may be accepted.
ALL INFORMATION CONTAINED IN THIS QUESTIONNAIRE WILL BE TREATED
CONFIDENTIALLY. The undersigned CORPORATION understands, however, that the
Company may present this Questionnaire to such parties as it deems appropriate
if called upon to establish that the proposed offer and sale of the Shares is
exempt from registration under the Securities Act of 1933, as amended. Further,
the undersigned CORPORATION understands that the offering is required to be
reported to the Securities and Exchange Commission and to various state
securities and "blue sky" regulators.
IN ADDITION TO SIGNING THE SIGNATURE PAGE, THE UNDERSIGNED CORPORATION
MUST COMPLETE FORM W-9 ATTACHED HERETO.
I. PLEASE CHECK EACH OF THE STATEMENTS BELOW THAT APPLIES TO THE CORPORATION.
o FORMCHECKBOX o
1. The undersigned CORPORATION: (a) has total assets in excess of
$5,000,000; (b) was not formed for the specific purpose of acquiring the
Shares and (c) has its principal place of business in __________________.
o FORMCHECKBOX o
2. Each of the shareholders of the undersigned CORPORATION is able to
certify that such shareholder meets at least one of the following three
conditions:
(a) the shareholder is a natural person whose individual net worth*
or joint net worth with his or her spouse exceeds $10,000,000; or
(b) the shareholder is a natural person who had an individual income*
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in excess of $200,000 in each of 1996 and 1997 and who reasonably expects an
individual income in excess of $200,000 in 1998; or (c) Each of the
shareholders of the undersigned CORPORATION is able to certify that such
shareholder is a natural person who, together with his or her spouse, has had
a joint income in excess of $300,000 in each of 1996 and 1997 and who
reasonably expects a joint income in excess of $300,000 during 1998; and the
undersigned CORPORATION has its principal place of business in _______________.
* For purposes of this Questionnaire, the term "net worth" means the excess of
total assets over total liabilities. In determining income, an investor should
add to his or her adjusted gross income any amounts attributable to tax-exempt
income received, losses claimed as a limited partner in any limited partnership,
deductions claimed for depletion, contributions to XXX or Xxxxx retirement plan,
alimony payments and any amount by which income from long-term capital gains has
been reduced in arriving at adjusted gross income.
o FORMCHECKBOX o
3. The undersigned CORPORATION is:
(a) a bank as defined in Section 3(a)(2) of the Securities Act; or
(b) a savings and loan association or other institution as defined in
Section 3(a)(5)(A) of the Securities Act whether acting in its individual or
fiduciary capacity; or
(c) a broker or dealer registered pursuant to Section 15 of the
Securities Exchange Act of 1934; or
(d) an insurance company as defined in Section 2(13) of the
Securities Act; or
(e) An investment company registered under the Investment Company Act
of 1940 or a business development company as defined in Section 2(a)(48) of
the Investment Company Act of 1940; or
(f) 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; or
(g) a private business development company as defined in Section
202(a) (22) of the Investment Advisors Act of 1940.
II. OTHER CERTIFICATIONS.
By signing the Signature Page, the undersigned certifies the following:
(a) That the CORPORATION'S purchase of the Shares will be solely for
the CORPORATION'S own account and not for the account of any other person or
entity; and
(b) that the CORPORATION'S name, address of principal place of
business, place of incorporation and taxpayer identification number as set
forth in this Questionnaire are true, correct and complete.
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III. GENERAL INFORMATION
(a) PROSPECTIVE PURCHASER (THE CORPORATION)
Name:
-------------------------------------------------------------------------
Principal Place of Business:
--------------------------------------------------
Address for Correspondence (if different):
------------------------------------------------------------------------------
(Number and Street)
------------------------------------------------------------------------------
(City) (State) (Zip Code)
Telephone Number:
-------------------------------------------------------------
(Area Code) (Number)
Jurisdiction of Incorporation:
------------------------------------------------
Date of Formation:
-----------------------------------------------------------
Taypayer Identification Number:
-----------------------------------------------
Number of Shareholders:
-------------------------------------------------------
(b) INDIVIDUAL WHO IS EXECUTING THIS QUESTIONNAIRE ON BEHALF OF THE
CORPORATION.
Name:
------------------------------------------------------------------------
Position or Title:
-----------------------------------------------------------
IMAGING DIAGNOSTIC SYSTEMS, INC.
CORPORATION SIGNATURE PAGE
Your signature on this Corporation Signature Page evidences the
agreement by the Purchaser to be bound by the Questionnaire and the
Subscription Agreement.
1. The undersigned hereby represents that (a) the information
contained in the Questionnaire is complete and accurate and (b) the Purchaser
will notify Imaging Diagnostic Systems, Inc.. immediately if any material
change in any of the information occurs prior to the acceptance of the
undersigned Purchaser's subscription and will promptly send Imaging Diagnostic
Systems, Inc. written confirmation of such change.
2. The undersigned officer of the Purchaser hereby certifies that he
has read and understands this Subscription Agreement.
3. The undersigned officer of the Purchaser hereby represents and
warrants that he has been duly authorized by all requisite action on the part of
the Corporation to acquire the Shares and sign this Subscription Agreement on
behalf of _______________ and, further, that ____________________ has all
requisite authority to purchase the Shares and enter into this Subscription
Agreement.
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4. The undersigned acknowledges and is aware that except for the
three day rescission rights provided under Florida law, the undersigned is
entitled to cancel, terminate or revoke this subscription, and any agreements
made in connection herewith shall survive my death or disability.
5. The undersigned has had the opportunity to ask questions of, and
receive answers from management of the Company regarding the terms and
conditions of this Subscription Agreement, and the transactions contemplated
thereby, as well as the affairs of the Company and related matters.
6. The undersigned understands that he may have access to whatever
additional information concerning the Company, its financial condition, its
business, its prospects, its management, its capitalization, and other similar
matters that he may desire, provided that the Company can acquire such
information without unreasonable effort or expense. In addition, as required
by Section 517.061(11)(a)(3), Florida Statutes, and Rule 3E-500.05(a)
thereunder, the undersigned understands that he may have, at the offices of
the Company, at any reasonable hour, after reasonable prior notice, access to
the materials set forth in the Rule which the Company can obtain without
unreasonable effort or expense.
7. The undersigned has had the opportunity to obtain additional
information necessary to verify the accuracy of the information referred to
above.
-------------------------------- --------------------------------
Number of Shares subscribed for Date
(Purchaser)
By:
------------------------------
(Signature)
Name: Title:
--------------------------- ---------------------------
(Please Type or Print) (Please Type or Print)
THE SHARES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933.
AS AMENDED (THE "ACT"), AND MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED
UNLESS SUCH SECURITIES ARE INCLUDED IN AN EFFECTIVE REGISTRATION STATEMENT
UNDER THE ACT.
COMPANY ACCEPTANCE PAGE
This Subscription Agreement accepted and agreed
to this ____ day of May, 1998
IMAGING DIAGNOSTIC SYSTEMS, INC.
By__________________________________
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