STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT (this "Agreement") is made as of this 31st
day of October, 2005, by and between Magna-Lab, Inc., a New York corporation
(the "Company"), and Magna Acquisition LLC (the "Investor").
WHEREAS, the Company desires to issue and sell 30,000,000 shares (the
"Shares") of its class A common stock, $0.001 par value ("Common Stock"), to
Investor and Investor desires to purchase the Shares;
WHEREAS, pursuant to a separate agreement, Investor has agreed to purchase
from a principal stockholder of the Company who is currently in receivership,
Xxxx Investments in Technologies, Ltd. ("Xxxx"), and Xxxx has agreed to sell to
Investor, all of the shares of Common Stock owned by Xxxx (the "Xxxx
Agreement");
WHEREAS, the parties hereto desire to make certain representations,
warranties and agreements in connection with the proposed purchase and sale of
the Shares and to establish various rights and obligations in connection
therewith;
NOW, THEREFORE, in consideration of the promises, representations,
warranties, covenants and agreements contained herein, and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, each of the parties hereto, intending to be legally bound, hereby
agree as follows:
SECTION 1. PURCHASE AND SALE OF SHARES
1.1 Sale and Purchase. Upon the terms and subject to the conditions contained
herein, and in reliance on the representations and warranties set forth in
Sections 2 and 3 below, at the Closing (as defined below): Investor shall
purchase from the Company, and the Company shall issue and sell to Investor
thirty million (30,000,000) shares of Common Stock at a purchase price of
$0.006333 per share for an aggregate purchase price of $190,000 (the "Purchase
Price").
1.2 Consideration. At Closing, Investor shall deliver to the Company by wire
transfer of immediately available U.S. funds the amount of $190,000 to the
account or accounts specified by the Company, and the Company shall direct its
transfer agent to issue the Shares to the Investor.
1.3 Closing. The closing of the purchase and sale of the Shares (the "Closing")
shall take place effective on the date hereof (the "Closing Date") by mail or at
such place as shall be mutually agreed to by the parties hereto.
1.4 Closing Condition. On or before the Closing, the Company shall have
delivered to the Investor a copy of the Settlement and Release Agreement
attached hereto fully executed by each of the parties thereto, under which,
among other things, the Company agrees to issue to Management and former
management (as defined therein) 2,973,923 shares of Common Stock of the Company
in exchange for (i) full settlement of accrued and unpaid compensation owing to
Management and former management for the period from September 1, 2002 through
January 15, 2003, and (ii) cancellation of options to purchase up to 2,325,000
shares of Common Stock of the Company held by some of Management and former
management.
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1.5 Post-Closing Covenant. On or promptly following the Closing, the Company
shall issue and deliver to Xxxx a written release and waiver of any and all
claims, demands or causes or action whatsoever against Xxxx relating to the
shares of Common Stock Xxxx purchased from the Company, which release and waiver
is contemplated by, and a condition to closing of, the Xxxx Agreement.
SECTION 2. REPRESENTATIONS AND WARRANTIES OF THE COMPANY
In order to induce the Investor to enter into this Agreement, the Company
represents and warrants to Investor:
2.1 Organization and Corporate Power. The Company is a corporation duly
organized, validly existing and in good standing under the laws of the State of
New York. The Company has all required corporate power and authority to carry on
its business as presently conducted, to enter into and perform this Agreement
and each agreement, document and instrument to be executed and delivered by or
on behalf of the Company pursuant to or as contemplated by this Agreement and to
carry out the transactions contemplated hereby and thereby, including the
issuance and sale of the Shares. Copies of the Articles of Incorporation and
Bylaws of the Company have been provided to the Investor and are complete and
correct.
2.2 Capitalization. The authorized and issued capital stock of the Company is as
set forth in the Offering Documents (as defined below). The shares have been
duly authorized and upon issuance pursuant to the terms of this Agreement will
be validly issued, fully paid and nonassessable and not subject to any
preemptive rights of the shareholders of the Company. The Company presently has
no commitments to issue additional shares of capital stock, except for: (i)
300,000 shares of Common Stock reserved for issuance pursuant to outstanding
stock options exercisable at $.25 per share and expiring December 31, 2005 and
(ii) 1,875,000 shares of Common Stock reserved for issuance pursuant to
outstanding stock options exercisable at $0.49 per share and expiring in
increments of 625,000 on each of January 31, 2006, August 31, 2006 and January
31, 2007. In addition, the Company has entered into transactions pursuant to
which it will issue or commit to issue: (i) 2,973,923 shares of Common Stock to
management and former management pursuant to the Settlement and Release
Agreement referred to in Section 1.4 hereof and (ii) 1,500,000 shares of Common
Stock to Xxxxxxx X. Xxxxxxx as additional compensation for his continued efforts
on behalf of the Company. Further, the Company has reserved 9,000,000 shares of
Common Stock for issuance to directors and management in the event that their
efforts result in Board approval of a merger or financing transaction.
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2.3 Material Agreements; No Defaults. Except as set forth in the SEC Documents
(as defined below), the Company is not a party to any contract or agreement that
involves material payments of cash, stock or other property to or from the
Company. The Company is not in violation of or default under any provision of
any such contract or agreement to which it is a party, except as would not have
a material adverse effect on the business, financial condition or results of
operations of the Company taken as a whole.
2.4 Compliance with Law. The Company is not in default with respect to any
judgment, order, writ, injunction, decree or award, and the Company is not in
violation of, and the business of the Company is presently being conducted so as
to comply in all material respects with, applicable Federal, state and local
governmental laws and regulations, all to the extent necessary to avoid any
material adverse effect on the business, properties or financial condition of
the Company, except as disclosed in the Offering Documents.
2.5 SEC Documents; Financial Statements. The Common Stock is registered pursuant
to Section 12(g) of the Securities Exchange Act of 1934 (the "Exchange Act") and
the Company is required to file reports and statements with the Securities and
Exchange Commission (the "SEC") pursuant to the requirements of the Exchange
Act. All such reports and statements filed by the Company with the SEC during
the current fiscal year and for the three prior fiscal years are referred to
herein as the "SEC Documents". As of their respective dates, the SEC Documents
complied in all material respects with the requirements of the Exchange Act and
the rules and regulations of the SEC promulgated thereunder applicable to the
SEC Documents. As of their respective dates, the financial statements of the
Company and its subsidiary included in the SEC Documents complied as to form in
all material respects with applicable accounting requirements and the published
rules and regulations of the SEC. Such financial statements have been prepared
in accordance with generally accepted accounting principles applied on a
consistent basis during the periods involved (except (a) as may be otherwise
indicated in such financial statements or the notes thereto, or (b) in the case
of unaudited interim statements, to the extent they may exclude footnotes or may
be condensed or summary statements) and fairly present the financial position of
the Company and its subsidiary as of the dates thereof and the results of its
operations and cash flows for the periods then ended (subject, in the case of
unaudited statements, to normal year-end audit adjustments).
2.6 Authorization and Non-Contravention. The execution, delivery and performance
by the Company of this Agreement and each agreement, document and instrument to
be executed and delivered by or on behalf of the Company pursuant to or as
contemplated by this Agreement and the issuance and sale of the Shares, have
been duly authorized by all necessary corporate action of the Company. This
Agreement and each agreement, document and instrument to be executed and
delivered by or on behalf of the Company pursuant to or as contemplated by this
Agreement constitutes a valid and binding obligation of the Company, enforceable
in accordance with its terms. The execution and delivery by the Company of this
Agreement and each agreement, document and instrument to be executed and
delivered by or on behalf of the Company pursuant to or as contemplated by this
Agreement and the performance by the Company of the transactions contemplated
hereby and thereby, including the issuance and delivery of the Shares, do not
and will not: (A) violate, conflict with or result in a default (whether after
the giving of notice, lapse of time or both) under any material contract or
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obligation to which the Company is a party or by which it or its assets are
bound and which have not been waived, or any provision of the articles of
incorporation or bylaws of the Company; (B) to the Company's knowledge, violate
or result in a violation of, or constitute a default under, any provision of any
material law, regulation or rule, or any order of, or any restriction imposed
by, any court or governmental agency applicable to the Company; (C) require from
the Company any notice to, declaration or filing with, or consent or approval of
any governmental authority or third party other than as may be required to
secure an exemption from qualification of the offer and sale of the Shares under
the Securities Act of 1933, as amended (the "Securities Act"); or (D) accelerate
any obligation under, or give rise to a right of termination of, any material
agreement, permit, license or authorization to which the Company is a party or
by which the Company is bound.
2.7 Securities Laws. In reliance on the investment representations contained in
Section 3, the offer, issuance, sale and delivery of the Shares, as provided in
this agreement, are exempt from the registration requirements of the Securities
Act.
2.8 No Other Representations. Other than as set forth in this Section 2, the
Company makes no other representations and warranties to Investor, written or
oral, including without limitation, any representation with respect to the
valuation of the Company.
SECTION 3. REPRESENTATIONS AND WARRANTIES OF INVESTOR
In order to induce the Company to enter into this Agreement, the Investor
represents and warrants to the Company:
3.1. Investment Intention. Investor is purchasing the Shares for its own
account, for investment purposes and not with a view to the distribution
thereof. Investor will not, directly or indirectly, offer, transfer, sell,
assign, pledge, hypothecate or otherwise dispose of any of the Shares, except in
compliance with the Securities Act.
3.2. Accredited Investor. Investor is an "Accredited Investor" (as that term is
defined in Rule 501 of Regulation D under the Securities Act) and by reason of
its business and financial experience, it has such knowledge, sophistication and
experience in business and financial matters as to be capable of evaluating the
merits and risks of the prospective investment and making an informed investment
decision with respect thereto; is able to bear the economic risk of such
investment and is able to afford a complete loss of such investment; and has
made an independent investigation of the Company and relied upon its own due
diligence, valuation analysis and other analyses in determining to purchase the
Shares.
3.3 Offering Documents. The Investor acknowledges receipt and careful review of
the Company's Annual Report on Form 10-KSB for the fiscal year ended February
28, 2005 and the Company's Quarterly Reports on Form 10-QSB for the three months
ended May 31, 2005 and for the three and six months ended August 31, 2005
(collectively, the "Offering Documents"). The Investor hereby represents that it
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has been furnished by the Company during the course of this transaction with all
information regarding the Company which the Investor had requested or desired to
know, that all documents which could be reasonably provided have been made
available for the Investor's inspection and review, and that the Investor has
been afforded the opportunity to ask questions of and receive answers from duly
authorized officers or other representatives of the Company concerning this
transaction, and any additional information which the Investor had requested.
The Investor hereby represents that, except as set forth in this Agreement and
the Offering Documents, no representations or warranties have been made to the
Investor by the Company or any agent, employee or affiliate of the Company and
in entering into this transaction, the Investor is not relying on any
information, other than that contained in this Agreement and the Offering
Documents and the results of independent investigation by the Investor.
3.4. Shares Not Registered. Investor acknowledge that the Shares have not been
registered under the Securities Act or the securities laws of any state or other
jurisdiction and cannot be disposed of unless the Shares are subsequently
registered under the Securities Act and any applicable state laws or an
exemption from such registration is available. Investor understands that there
is a very limited public market for the Shares and that it must bear the
economic risk of investment in the Company for an indefinite period of time.
3.5. Legend. Investor acknowledges and agrees that the following legend shall be
placed on each certificate evidencing the Shares:
THE SECURITIES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED WITH THE SECURITIES AND
EXCHANGE COMMISSION AND MAY NOT BE OFFERED, SOLD, TRANSFERRED, HYPOTHECATED OR
OTHERWISE ASSIGNED EXCEPT (1) PURSUANT TO A REGISTRATION STATEMENT WITH RESPECT
TO SUCH SECURITIES WHICH IS EFFECTIVE UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "ACT") OR (2) PURSUANT TO AN AVAILABLE EXEMPTION FROM REGISTRATION
UNDER THE ACT, PROVIDED THAT AN OPINION OF COUNSEL TO SUCH EFFECT IS PROVIDED TO
THE COMPANY IN CONNECTION THEREWITH.
SECTION 4. GENERAL
4.1 Governing Law. This Agreement shall be deemed to be a contract made under,
and shall be construed in accordance with, the laws of the State of New York,
without giving effect to conflict of laws principles thereof.
4.2 Any controversy or claim arising out of, or relating to, this Agreement, or
its breach, shall be settled by arbitration in accordance with the then
governing rules of the American Arbitration Association. If such organization
ceases to exist, the arbitration shall be conducted by its successor, or by a
similar arbitration organization, at the time a demand for arbitration is made.
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Judgment upon the award tendered may be entered and enforced in any court of
competent jurisdiction. In the event of an arbitration, the prevailing party
shall be entitled to recover from the other party its own expenses for the
arbitrator's fee, reasonable legal fees, expert testimony, costs, and expenses
incurred in connection with any contest or dispute with respect to this
Agreement; provided, however, that such fees, costs, and expenses shall only be
paid in the event the arbitrator finds that the non-prevailing party lacked a
good faith basis for the dispute or contest. Other arbitration costs, including
fees for records or transcripts, shall be borne equally by the parties.
Notwithstanding anything herein to the contrary, the Company may seek injunctive
or other equitable relief in a court of competent jurisdiction prior to, or
while the dispute is pending in, an arbitration proceeding.
4.3 Counterparts. This Agreement may be executed simultaneously in any number of
counterparts, each of which when so executed and delivered shall be taken to be
an original, but such counterparts shall together constitute but one and the
same instrument.
4.4 Notices and Demands. Any notice or demand which is required or provided to
be given under this Agreement shall be deemed to have been sufficiently given
and received for all purposes when delivered by hand, facsimile, or two (2) days
after being sent by overnight delivery providing receipt of delivery, to the
following addresses:
if to the Company: Magna-Lab, Inc.
0000 Xxxxxxx Xxxxxxxx - Xxxxx 000X
Xxxxxxx, XX 00000
Attn: Xxxxxxxx X. Xxxxxxx, Ph.D., Chief Executive Officer
Fax: 000 000 0000
if to Investor: Magna Acquisition LLC
0000 Xxxxxx Xxxxxxxx Xxxxx
Xxxxx 0000
Xxxxxx, Xxxxxxxx 00000
Xxxx X. Xxxxxx Fax: (000) 000-0000
4.5 Successors and Assigns; Assignability. Neither this Agreement nor any right,
remedy, obligation or liability arising hereunder or by reason hereof shall be
assignable by Investor without the prior written consent of the Company. All
covenants contained herein shall bind and inure to the benefit of the parties
hereto and their respective successors and assigns.
4.6 Each party shall bear its own costs and expenses in connection with this
Agreement; provided, however, that the Company shall be responsible for the
reasonable legal fees and expenses of Investor's counsel, Barack Xxxxxxxxxx
Xxxxxxxxx Xxxxxxx & Xxxxxxxxx LLP, incurred through the date hereof in
connection this Agreement and the Xxxx Agreement, not to exceed an aggregate of
$43,200.
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4.7. Further Assurances. The parties agree: (a) to furnish upon request to each
other such further information; (b) to execute and deliver to each other such
other documents; and (c) to do such other acts and things, all as the other
party may reasonably request for the purpose of carrying out the intent of this
Agreement.
4.8 Integration. This Agreement, including the exhibits, documents and
instruments referred to herein or therein, constitutes the entire agreement, and
supersedes all other prior agreements and understandings, both written and oral,
among the parties with respect to the subject matter hereof.
[Signature Page Follows]
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IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed and delivered by their proper and duly authorized officers as of the
day and year first above written.
COMPANY:
MAGNA-LAB INC.
By:
/s/ Xxxxxxxx X. Xxxxxxx
-----------------------
Name: Xxxxxxxx X. Xxxxxxx, Ph.D.
Title: Chief Executive Officer
INVESTOR:
MAGNA ACQUISITION LLC
By:
/s/ Xxxx X. Xxxxxx
-----------------------
Name: Xxxx X. Xxxxxx
Title: President
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