EXHIBIT 99.1
FORM OF COMMON STOCK PURCHASE AGREEMENT
EXHIBIT 99.1
4-D NEUROIMAGING
COMMON STOCK PURCHASE AGREEMENT
APRIL 26, 2001
TABLE OF CONTENTS
PAGE
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1. Purchase and Sale of Stock...........................................1
1.1 Sale and Issuance of Common Stock...........................1
1.2 Closing.....................................................1
1.3 Subsequent Closings.........................................1
2. Representations and Warranties of the Company........................1
2.1 Organization, Good Standing and Qualification...............1
2.2 Capitalization..............................................2
2.3 Authorization...............................................2
2.4 Offering....................................................2
2.5 Changes.....................................................2
2.6 Disclosure..................................................2
2.7 Corporate Documents.........................................2
3. Representations and Warranties of the Investors......................2
3.1 Authorization...............................................2
3.2 Purchase Entirely for Own Account...........................2
3.3 Disclosure of Information...................................3
3.4 Investment Experience.......................................3
3.5 Accredited Investor.........................................3
3.6 Restricted Securities.......................................3
3.7 Further Limitations on Disposition..........................3
3.8 Legends.....................................................4
3.9 Further Representations by Foreign Investors................4
3.10 Tax Advisors................................................5
3.11 Investor Counsel............................................5
4. California Commissioner of Corporations..............................5
4.1 Corporate Securities Law....................................5
5. Conditions of the Company's Obligations at Closing...................5
5.1 Representations and Warranties..............................5
5.2 Payment of Purchase Price...................................5
5.3 Qualifications..............................................5
6. Miscellaneous........................................................5
6.1 Survival....................................................5
6.2 Successors and Assigns......................................6
6.3 Governing Law...............................................6
6.4 Titles and Subtitles........................................6
6.5 Notices.....................................................6
6.6 Finder's Fee................................................6
6.7 Expenses....................................................6
6.8 Severability................................................6
6.9 Entire Agreement............................................6
6.10 Counterparts................................................7
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COMMON STOCK PURCHASE AGREEMENT
THIS COMMON STOCK PURCHASE AGREEMENT (this "Agreement") is entered into
effective as of April 26, 2001, by 4-D Neuroimaging, a California corporation
(the "Company"), and the investor(s) listed on SCHEDULE A (each, an "Investor"
and collectively, the "Investors"). THE PARTIES HEREBY AGREE AS FOLLOWS:
1. PURCHASE AND SALE OF STOCK.
1.1 SALE AND ISSUANCE OF COMMON STOCK. Subject to the
terms and conditions of this Agreement, each Investor agrees, severally, to
purchase at the Closing (as defined in Section 1.2 below) and the Company agrees
to sell and issue to each Investor at the Closing, that number of shares of the
Company's Common Stock set forth opposite each Investor's name on SCHEDULE A for
the purchase price set forth thereon.
1.2 CLOSING. The purchase and sale of the Common Stock
shall take place at the offices of Xxxxxxx, Xxxxxxx & Xxxxxxxx LLP, 00000 Xx
Xxxxxx Xxxx, Xxx Xxxxx, Xxxxxxxxxx, Xxxxxx Xxxxxx of America ("USA") 92130, at
11:00 AM Pacific Time, on April 26, 2001, or at such other time and place as the
Company and Investors acquiring in the aggregate more than half the shares of
Common Stock sold pursuant to this Agreement mutually agree upon orally or in
writing (which time and place are designated as the "Closing"). At the Closing
the Company shall deliver to each Investor a certificate representing the Common
Stock that such Investor is purchasing against payment of the purchase price
therefor by check, wire transfer, cancellation of indebtedness or any
combination thereof. In the event that payment by an Investor is made, in whole
or in part, by cancellation of indebtedness, then such Investor shall surrender
to the Company for cancellation at the Closing any evidence of such
indebtedness, including any interest accrued on such indebtedness through the
Closing or shall execute an instrument of cancellation in form and substance
acceptable to the Company.
1.3 SUBSEQUENT CLOSINGS. The Company may sell additional
Common Stock not sold at the Closing to other investors (the "New Investors"),
at a price not less than $0.21 per share, at one or more additional closings
without obtaining the signature, consent or permission of any of the Investors,
provided the agreement for sale is executed not later than April 30, 2001. Any
such New Investor shall become a party to this Agreement upon executing
counterpart signature pages to this Agreement and shall have the rights and
obligations under this Agreement to the same extent as if the New Investors had
been Investors at the Closing.
2. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company
hereby represents and warrants to each Investor that:
2.1 ORGANIZATION, GOOD STANDING AND QUALIFICATION. The
Company is a corporation duly organized, validly existing and in good standing
under the laws of the State of California, USA. The Company is duly qualified to
transact business and is in good standing in each jurisdiction in which the
failure to so qualify would have a material adverse effect on its business or
properties.
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2.2 CAPITALIZATION. The total number of shares which the
Company is authorized to issue is Two Hundred Million (200,000,000) shares of
common stock, no par value ("Common Stock"), of which 84,975,008 shares were
issued and outstanding as of January 23, 2001. In addition, the Company has
reserved 8,000,000 shares of Common Stock for issuance under the Company's 1997
Stock Incentive Plan.
2.3 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 has been taken or will
be taken prior to the Closing. This Agreement constitutes valid and legally
binding obligations of the Company, enforceable in accordance with its terms,
except (i) as limited by applicable bankruptcy, insolvency, reorganization,
moratorium and other laws of general application affecting enforcement of
creditors' rights generally and (ii) as limited by laws relating to the
availability of specific performance, injunctive relief or other equitable
remedies.
2.4 OFFERING. Subject in part to the truth and accuracy
of each Investor's representations set forth in Section 3 of this Agreement, the
offer, sale and issuance of the Common Stock as contemplated by this Agreement
are exempt from the registration requirements of the Securities Act of 1933, as
amended (the "Act").
2.5 CHANGES. Since December 31, 2000, there has not been
any change in the assets, liabilities, financial condition or operating results
of the Company from that reflected in the financial statements included as
exhibits to the quarterly report on Form 10-Q filed with the United States and
Securities Exchange Commission on February 20, 2001, except changes in the
ordinary course of business that have not been, in the aggregate, materially
adverse.
2.6 DISCLOSURE. The Company has fully provided each
Investor with all the information that such Investor has requested for deciding
whether to purchase the Common Stock.
2.7 CORPORATE DOCUMENTS. The Fifth Amended and Restated
Articles of Incorporation and the Restated Bylaws of the Company are in the form
previously filed with the United States Securities and Exchange Commission.
3. REPRESENTATIONS AND WARRANTIES OF THE INVESTORS. Each Investor
hereby represents, warrants and covenants that:
3.1 AUTHORIZATION. Such Investor has full power and
authority to enter into this Agreement, and each such agreement constitutes its
valid and legally binding obligation, enforceable in accordance with its terms.
3.2 PURCHASE ENTIRELY FOR OWN ACCOUNT. This Agreement is
made with such Investor in reliance upon such Investor's representation to the
Company, which by such Investor's execution of this Agreement such Investor
hereby confirms, that, with the exception of the signatories to that certain
letter of exceptions to be delivered to the Company upon execution of this
Agreement, which letter of exceptions must be in form and substance acceptable
to the Company (the "Letter of Exceptions"), the Common Stock to be received by
such Investor will be acquired for investment for such Investor's own account,
not as a nominee or agent, and not
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with a view to the resale or distribution of any part thereof, and that such
Investor has no present intention of selling, granting any participation in or
otherwise distributing the same. Except as set forth in the Letter of
Exceptions, by executing this Agreement, such Investor further represents that
such 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 Common Stock.
3.3 DISCLOSURE OF INFORMATION. Such Investor believes it
has received all the information it considers necessary or appropriate for
deciding whether to purchase the Common Stock. Such Investor further represents
that it has had an opportunity to ask questions and receive answers from the
Company regarding the terms and conditions of the offering of the Common Stock
and the business, properties, prospects and financial condition of the Company.
3.4 INVESTMENT EXPERIENCE. Such Investor acknowledges
that it is able to fend for itself, can bear the economic risk of its
investment, and has such knowledge and experience in financial or business
matters that it is capable of evaluating the merits and risks of the investment
in the Common Stock. If other than an individual, such Investor also represents
it has not been organized for the purpose of acquiring the Common Stock.
3.5 ACCREDITED INVESTOR. Such Investor is an "accredited
investor" within the meaning of United States Securities and Exchange Commission
Rule 501 of Regulation D, as presently in effect.
3.6 RESTRICTED SECURITIES. Such Investor understands that
the shares of Common Stock it is purchasing are characterized as "restricted
securities" under the United States securities laws inasmuch as they are being
acquired from the Company in a transaction not involving a public offering and
that under such laws and applicable regulations such shares may be resold
without registration under the Act only in certain limited circumstances. In the
absence of an effective registration statement covering the Common Stock or an
available exemption from registration under the Act, the Common Stock must be
held indefinitely. In this regard, such Investor represents that it is familiar
with United States Securities and Exchange Commission Rule 144, as presently in
effect, and understands the resale limitations imposed thereby and by the Act,
including without limitation the Rule 144 condition that current information
about the Company be available to the public.
3.7 FURTHER LIMITATIONS ON DISPOSITION. Notwithstanding
anything to the contrary herein, including without limitation Section 3.2 above,
and without in any way limiting the representations set forth above, such
Investor further agrees not to make any disposition of all or any portion of the
Common Stock unless and until the transferee has agreed in writing for the
benefit of the Company to be bound by this Section 3, and:
(a) There is then in effect a registration
statement under the Act covering such proposed disposition and such disposition
is made in accordance with such registration statement or, with respect to the
signatories to the Letter of Exceptions any transfer to such signatories
complies with all applicable federal, state and foreign securities laws; or
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(b) (i) Such Investor shall have 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 (ii) if requested by the Company, such Investor shall have furnished the
Company with an opinion of counsel, reasonably satisfactory to the Company that
such disposition will not require registration of such shares under the Act. It
is agreed that the Company will not require opinions of counsel for transactions
made pursuant to Rule 144 except in unusual circumstances.
(c) Notwithstanding the provisions of
subsections (a) and (b) above, no such registration statement or opinion of
counsel shall be necessary for a transfer by an Investor that is a partnership
to a partner of such partnership or a retired partner of such partnership who
retires after the date hereof, or to the estate of any such partner or retired
partner or the transfer by gift, will or intestate succession of any partner to
his or her spouse or to the siblings, lineal descendants or ancestors of such
partner or his or her spouse, if the transferee agrees in writing to be subject
to the terms hereof to the same extent as if he or she were an original Investor
hereunder.
3.8 LEGENDS. It is understood that the certificates
evidencing the Common Stock may bear one or more legends in substantially the
following forms:
(a) "The shares represented by this certificate
have not been registered under the Securities Act of 1933, as amended. 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
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."
(b) "The shares represented by this certificate
are subject to restrictions on transfer and may not be sold, assigned,
transferred, encumbered, or in any manner disposed of except in conformity with
the terms of that certain Common Stock Purchase Agreement dated on or about
April 26, 2001 between the Company and the registered holder of the shares (or
the predecessor in interest to the shares). The Company will upon written
request to the Corporate Secretary furnish a copy of such agreement to the
holder hereof without charge."
(c) Any legend required by the applicable laws
of the Investor's jurisdiction.
3.9 FURTHER REPRESENTATIONS BY FOREIGN INVESTORS. If an
Investor is not a United States person, such Investor hereby represents that it
has satisfied itself as to the full observance of the laws of its jurisdiction
in connection with any invitation to subscribe for the Common Stock or any use
of this Agreement, including without limitation (i) the legal requirements
within its jurisdiction for the purchase of the Common Stock, (ii) any foreign
exchange restrictions applicable to such purchase, (iii) any governmental or
other consents that may need to be obtained, and (iv) the income tax and other
tax consequences, if any, that may be relevant to the purchase, holding,
redemption, sale or transfer of the Common Stock. Such Investor's subscription
and payment for, and its continued beneficial ownership of the Common Stock,
will not violate any applicable securities or other laws of its jurisdiction.
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3.10 TAX ADVISORS. Such Investor has reviewed with such
Investor's own tax advisors the foreign, federal, state and local tax
consequences of this investment, where applicable, and the transactions
contemplated by this Agreement. Each such Investor is relying solely on such
advisors and not on any statements or representations of the Company or any of
its agents and understands that each such Investor (and not the Company) shall
be responsible for such Investor's own tax liability that may arise as a result
of this investment or the transactions contemplated by this Agreement.
3.11 INVESTOR COUNSEL. Such Investor acknowledges that
such Investor has had the opportunity to review this Agreement and the
transactions contemplated by this Agreement with such Investor's own legal
counsel. Each such Investor is relying solely on such Investor's legal counsel
and not on any statements or representations of the Company or any of the
Company's agents, including Xxxxxxx, Xxxxxxx & Xxxxxxxx LLP, for legal advice
with respect to this investment or the transactions contemplated by this
Agreement.
4. CALIFORNIA COMMISSIONER OF CORPORATIONS.
4.1 CORPORATE SECURITIES LAW. THE SALE OF THE SECURITIES
THAT ARE THE SUBJECT OF THIS AGREEMENT HAS NOT BEEN QUALIFIED WITH THE
COMMISSIONER OF CORPORATIONS OF THE STATE OF CALIFORNIA AND THE ISSUANCE OF SUCH
SECURITIES OR THE PAYMENT OR RECEIPT OF ANY PART OF THE CONSIDERATION FOR SUCH
SECURITIES PRIOR TO SUCH QUALIFICATION IS UNLAWFUL, UNLESS THE SALE OF
SECURITIES IS EXEMPT FROM QUALIFICATION BY SECTION 25100, 25102 OR 25105 OF THE
CALIFORNIA CORPORATIONS CODE. THE RIGHTS OF ALL PARTIES TO THIS AGREEMENT ARE
EXPRESSLY CONDITIONED UPON SUCH QUALIFICATION BEING OBTAINED, UNLESS THE SALE IS
SO EXEMPT.
5. CONDITIONS OF THE COMPANY'S OBLIGATIONS AT CLOSING. The
obligations of the Company to each Investor under this Agreement are subject to
the fulfillment on or before the Closing of each of the following conditions by
that Investor:
5.1 REPRESENTATIONS AND WARRANTIES. The representations
and warranties of the Investor contained in Section 3 shall be true on and as of
the Closing with the same effect as though such representations and warranties
had been made on and as of the Closing.
5.2 PAYMENT OF PURCHASE PRICE. The Investor shall have
delivered the purchase price specified in Section 1.2 per share of Common Stock.
5.3 QUALIFICATIONS. All authorizations, approvals or
permits, if any, of any governmental authority or regulatory body of the United
States, any state or any foreign jurisdiction that are required in connection
with the lawful issuance and sale of the Common Stock pursuant to this Agreement
shall be duly obtained and effective as of the Closing.
6. MISCELLANEOUS.
6.1 SURVIVAL. The warranties, representations and
covenants of the Investors contained in or made pursuant to this Agreement shall
survive the execution and delivery of this
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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 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 Common Stock). 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 shall be governed by
and construed under the laws of the State of California, USA as applied to
agreements among California residents entered into and to be performed entirely
within California.
6.4 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.
6.5 NOTICES. All notices required or permitted hereunder
shall be in writing and shall be deemed effectively given: (i) upon personal
delivery to the party to be notified, (ii) when sent by confirmed telex,
facsimile or electronic mail if sent during normal business hours of the
recipient, if not, then on the next business day; (iii) five days after having
been sent by registered or certified mail, return receipt requested, postage
prepaid; or (iv) one day after deposit with a nationally recognized overnight
courier, specifying next day delivery, with written verification of receipt. All
communications shall be sent to the address as set forth on the signature page
hereof or at such other address as such party may designate by 10 days advance
written notice to the other parties hereto.
6.6 FINDER'S FEE. Each party represents that it neither
is nor will be obligated for any finders' fee or commission in connection with
this transaction. Each 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 such Investor or any of its officers, partners,
employees or representatives is responsible. The Company agrees to indemnify and
hold harmless each 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.
6.7 EXPENSES. Each party shall pay its own costs and
expenses that it incurs with respect to the negotiation, execution, delivery and
performance of this Agreement.
6.8 SEVERABILITY. If one or more provisions of this
Agreement are 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.
6.9 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
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other party in any manner by any warranties, representations or covenants except
as specifically set forth herein or therein.
6.10 COUNTERPARTS. 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.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
4-D NEUROIMAGING, a California corporation
By:
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D. Xxxxx Xxxxxxxx,
Chief Executive Officer
Address: 0000 Xxxxxxx Xxxxxxx Xxxx.,
Xxx Xxxxx, Xxxxxxxxxx, XXX 00000
Facsimile No. (000) 000-0000
INVESTOR:
By:
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Address:
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Facsimile No.
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E-mail:
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[SIGNATURE PAGE TO COMMON STOCK PURCHASE AGREEMENT]
SCHEDULE A
SCHEDULE OF INVESTORS
INVESTORS NUMBER OF SHARES PURCHASE PRICE
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INVESTOR
SCHEDULE A
