EXHIBIT 4.5
STOCK PURCHASE AGREEMENT BETWEEN IMATRON INC. AND XXXXX XXXX.
THIS STOCK PURCHASE AGREEMENT ("Agreement") is made as of the 16th day of
June, 1999 by and between IMATRON INC., a New Jersey corporation with principal
offices located at 000 Xxxxxx Xxxxx Xxxxxxxxx, Xxxxx Xxx Xxxxxxxxx, Xxxxxxxxxx
00000 ("Seller") and XXXXX XXXX (the "Purchaser").
WHEREAS, Seller has authorized the issuance and sale of certain shares of
its common stock (the "Common Stock") and warrants to purchase its common stock
(the "Warrants") in exchange for certain consideration; and
WHEREAS, Purchaser desires to purchase and Seller desires to sell the
Shares on the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the mutual covenants and agreements,
the Seller and Purchaser hereby agree as follows:
AGREEMENT
1. Purchase and Sale of Shares. Seller agrees to sell to Purchaser and upon
the basis of the representations and warranties, and subject to the terms and
conditions, set forth in this Agreement, Purchaser agrees to purchase for an
Aggregate Purchase Price equal to the following: (i) 3,767,713 shares of Common
Stock (the "Shares"); (ii) a five year warrant to purchase 360,000 shares of
Common Stock at $1.044; and (iii) a one year warrant to purchase 2,991,077
shares of Common Stock at $1.003 per share (collectively, the "Warrants"). The
forms of the Warrants are attached hereto as Exhibits A and B. The Shares and
the Warrants are hereinafter collectively referred to as the "Securities". The
Shares and the shares of Common Stock issuable upon exercise of the Warrants are
hereinafter referred to as the "Registrable Securities".
2. Closing. The closing of the purchase and sale of securities pursuant to
Section 1 hereof shall take place at the offices of Seller set forth in Section
12 below as soon as all of the conditions set forth in Section 6 below have been
satisfied. Within ten (10) business days following the Closing, Seller will
deliver to Purchaser certificates representing the Securities. Delivery of such
certificates shall be in accordance with Purchaser's instructions.
3. Restriction on Transfer of Securities.
3.1. Restrictions. The Shares are transferable only pursuant to (a) a
public offering registered under the Securities Act of 1933, as amended (the
"Securities Act"), (b) Rule 144 (or any similar rule then in effect) adopted
under the Securities Act, if such rule is available, and (c) subject to the
conditions elsewhere specified in this Section 4, any other legally available
means of transfer.
3.2. Legend. Each certificate representing Securities will be endorsed
with the following legend: "The securities evidenced hereby may not be
transferred without (i) the opinion of counsel satisfactory to the Company that
such transfer may be lawfully made without registration under the Securities Act
of 1933 and all applicable state securities laws or (ii) such registration."
3.3. Stop Transfer Order. A stop transfer order shall be placed with
the Seller's transfer agent preventing transfer of any of the securities
referred to in Section 3.2 above pending compliance with the conditions set
forth in any such legend.
3.4. Removal of Legend. Any legend endorsed on a certificate or
instrument evidencing a security pursuant to Section 3.2 hereof shall be
removed, and Seller shall issue a certificate or instrument without such legend
to the holder of such security, (a) in accordance with Section 3.2 hereof, (b)
if such security is being disposed of pursuant to registration under the
Securities Act and any applicable state acts or pursuant to Rule 144 or any
similar rule then in effect, or (c) if such holder provides Seller with an
opinion of counsel satisfactory to it to the effect that a sale, transfer,
assignment, offer, pledge or distribution for value of such security may be made
without registration and that such legend is not required to satisfy the
applicable exemption from registration.
4. Representations and Warranties by Seller. Seller represents and
warrants to Purchaser that:
4.1. Organization, Standing, Power. Seller is a corporation duly
organized, validly existing and in good standing under the laws of the State of
New Jersey and has the requisite corporate power and authority to own its
properties and to carry on its business in all material respects as it is now
being conducted. Seller has, or at the Closing will have, the requisite
corporate power and authority to issue the Securities, and to otherwise perform
its obligations under this Agreement.
4.2. Qualification. Seller is duly qualified or licensed as a foreign
corporation in good standing in each jurisdiction wherein the nature of its
activities or of its properties owned or leased makes such qualification or
licensing necessary and failure to be so qualified or licensed would have a
material adverse impact on its business.
4.3. Compliance with Applicable Laws and Other Instruments. The
business and operations of Seller have been and are being conducted in
accordance with all applicable laws, rules and regulations of all governmental
authorities. Subject to shareholder approval of appropriate amendments to the
Articles of Incorporation as contemplated by this Agreement, and except with
respect to existing registration rights of holders of certain securities issued
by Seller, neither the execution nor delivery of, nor the performance of or
compliance with, this Agreement nor the consummation of the transactions
contemplated hereby will conflict with or, with or without the giving of notice
or passage of time, result in any breach of, or constitute a default under, or
result in the imposition of any lien or encumbrance upon any asset or property
of Seller pursuant to, any applicable law, administrative regulation or
judgment, order or decree of any court or governmental body, any agreement or
other instrument to which Seller is a party or by which it or any of its
properties, assets or rights is bound or affected, and will not violate the
Articles of Incorporation or Bylaws of Seller. Seller is not in violation of its
Articles of Incorporation or its Bylaws.
4.4. Common Stock. The Shares, and the Common Stock issuable upon
exercise of the Warrants, when issued and paid for pursuant to the terms of this
Agreement, will be duly authorized, validly issued and outstanding, fully paid,
nonassessable and free and clear of all pledges, liens, encumbrances and
restrictions.
5. Representations and Warranties of Purchaser. Purchaser represents and
warrants that:
5.1. Investment Intent. The Securities being acquired hereunder are
being purchased for Purchaser's own account and not with the view to, or for
resale in connection with, any distribution or public offering thereof within
the meaning of the Securities Act. Purchaser understands that the Securities
have not been registered under the Securities Act or any applicable state laws
by reason of their issuance or contemplated issuance in a transaction exempt
from the registration and prospectus delivery requirements of the Securities Act
and such laws and that the reliance of Seller and others upon this exemption is
predicated in part upon this representation and warranty. Purchaser further
understands that the Securities may not be transferred or resold without (a)
registration under the Securities Act and any applicable state securities laws
or (b) an exemption from the requirements of the Securities Act and applicable
state securities laws.
5.2. Accredited Investor. Purchaser qualifies as an accredited
investor within the meaning of Rule 501 under the Securities Act. Purchaser has
such knowledge and experience in financial and business matters that Purchaser
is capable of evaluating the merits and risks of the investment to be made
hereunder by Purchaser.
5.3. Acts and Proceedings. This Agreement has been duly executed and
delivered by Purchaser, and is a valid and binding agreement upon the part of
Purchaser.
5.4. No Brokers or Finders. No person, firm or corporation has or will
have, as a result of any act or omission by Purchaser, any right, interest or
valid claim against Seller for any commission, fee or other compensation as a
finder or broker, or in any similar capacity, in connection with the
transactions contemplated by this Agreement. Purchaser will indemnify and hold
Seller harmless against any and all liability with respect to any such
commission, fee or other compensation which may be payable or determined to be
payable as a result of the actions of Purchaser in connection with the
transactions contemplated by this Agreement.
6. Conditions of Purchaser's Obligation. Purchaser's obligation to purchase
and pay for the Securities on the Closing Date is subject to the fulfillment
prior to or on the Closing Date of the conditions set forth below. In the event
that any such condition is not satisfied to Purchaser's satisfaction, then
Purchaser shall not be obligated to proceed with the purchase of such Shares nor
further with any of its obligations pursuant to this Agreement.
6.1. No Errors, etc. The representations and warranties of Seller
under this Agreement shall be true in all material respects as of the Closing
Date with the same effect as though made on and as of the Closing Date.
6.2. Compliance with Agreement. Seller shall have performed and
complied in all material respects with all agreements or conditions required by
this Agreement to be performed and complied with by it prior to or as of the
Closing.
6.3. Qualification Under State Securities Laws. All registrations,
qualifications, permits and approvals required under applicable state securities
laws for the lawful execution and delivery of this Agreement and the offer,
sale, issuance and delivery of the Securities shall have been obtained.
6.4. Proceedings and Documents. All corporate and other proceedings
and actions taken in connection with the transactions contemplated hereby and
all certificates, opinions, agreements, instruments and documents mentioned
herein or incident to any such transaction shall be satisfactory in form and
substance to Purchaser and its counsel.
7. Conditions of Seller's Obligation. Seller's obligation to sell the
Securities to Purchaser on the Closing Date is subject to the fulfillment prior
to or on the Closing Date of the conditions set forth below. In the event that
any such condition is not satisfied, Seller shall not be obligated to proceed
with the sale of such Securities.
7.1. No Errors, etc. The representations and warranties of Purchaser
under this Agreement shall be true in all material respects as of the Closing
with the same effect as though made on and as of the Closing.
7.2. Compliance with Conditions. Purchaser shall have performed and
complied with all agreements or conditions required by this Agreement to be
performed and complied with by it prior to or as of the Closing.
8. Seller Affirmative Covenants. Seller covenants and agrees that:
8.1. Corporate Existence. Seller will maintain its corporate existence
in good standing and comply with all applicable laws and regulations of the
United States or of any state or states thereof or of any political subdivision
thereof and of any governmental authority where failure to so comply would have
a material adverse impact on Seller or its business or operations.
8.2. Books of Account and Reserves. Seller will keep books of record
and account in which full, true and correct entries are made of all of its
respective dealings, business and affairs, in accordance with generally accepted
accounting principles. Seller will employ certified public accountants selected
by the Board who are "independent" within the meaning of the accounting
regulations of the Securities and Exchange Commission and will have annual
audits made by such independent public accountants in the course of which such
accountants shall make such examinations, in accordance with generally accepted
auditing standards, as will enable them to give such reports or opinions with
respect to the financial statements of Seller that will satisfy the requirements
of the Securities and Exchange Commission in effect at such time with respect to
certificates and opinions of accountants.
8.3. Furnishing of Financial Statements and Information. Seller will
deliver to Purchaser:
(a) as soon as practicable, but in any event within 45 days after
the close of each quarterly period, unaudited consolidated balance sheets of
Seller as of the end of such period, together with the related consolidated
statements of operations and cash flow for such period, setting forth the
budgeted figures for such period prepared and submitted in connection with
Seller's annual business plan and in comparative form figures for the
corresponding quarterly period of the previous fiscal year, all in reasonable
detail and certified by an authorized accounting officer of Seller, subject to
year-end adjustments;
(b) s soon as practicable, but in any event within 90 days after
the end of each fiscal year, a consolidated balance sheet of Seller as of the
end of such fiscal year, together with the related consolidated statements of
operations, shareholders' equity and cash flow for such fiscal year, setting
forth in comparative form figures for the previous fiscal year, all in
reasonable detail and duly certified by Seller's independent public accountants,
which accountants shall have given Seller an opinion, unqualified as to the
scope of the audit, regarding such statements; and
(c) with reasonable promptness, such other financial data
relating to the business, affairs and financial condition of Seller as is
available to Seller and as from time to time Purchaser may reasonably request.
9. Registration of Stock. The Company shall use its best efforts to file
with the SEC as promptly as practicable and thereafter shall use its best
efforts to cause to be declared effective by December 15, a "shelf" registration
statement on the appropriate form under the Securities Act providing for the
registration of, and the sale on a continuous or delayed basis by Purchaser all
of the Registrable Securities, pursuant to Rule 415 or any similar rule that may
be adopted by the SEC (the "Shelf Registration"). The Company shall use its best
efforts to keep the Shelf Registration continuously effective in order to permit
the prospectus forming part thereof to be usable by Purchaser for a period
ending on the earlier of (i) (x) the second anniversary of the Closing, (y) the
expiration of the period following the Closing after which Rule 144(k) under the
Securities Act generally becomes available to non-affiliates of an issuer or (z)
in the event the Company has at any time suspended the use of the prospectus
contained in the Shelf Registration pursuant to this paragraph, the date beyond
the earlier of the periods referred to in clauses (x) and (y) that reflects an
additional period of days equal to the number of days during all of the periods
from and including the dates the Company gives notice of such suspension
pursuant to this paragraph to and including the date when holders of Registrable
Securities receive an amended or supplemented prospectus necessary to permit
resales of Registrable Securities under the Shelf Registration or to and
including the date on which the Company gives a Resumption Notice of (ii) such
time as all of the Registrable Securities covered by the Shelf Registration have
been sold pursuant to the Shelf Registration or pursuant to Rule 144 (in any
such case, such period being called the "Shelf Registration Period"). The
Company shall be deemed not to have used its best efforts to keep the Shelf
Registration effective during the requisite period if it voluntarily takes any
action that would result in holders of Securities covered thereby not being able
to offer and sell Registrable Securities during that period, unless such action,
in the opinion of the Company after consulting with legal counsel, is required
by applicable law. Notwithstanding any other provisions hereof, the Company will
ensure that (i) any Shelf Registration and any amendment thereto and any
prospectus forming part thereof and any supplement thereto complies in all
material respects with the Securities Act and the rules and regulations
thereunder, (ii) any Shelf Registration and any amendment thereto does not, when
it becomes effective, contain an untrue statement of a material fact or omit to
state a material fact required to be stated herein or necessary to make the
statements therein not misleading and (iii) any prospectus forming part of any
Shelf Registration, and any supplement to such prospectus does not include an
untrue statement of a material fact or omit to state a material fact necessary
in order to make the statements therein, in the light of the circumstances under
which they were made, not misleading.
9.1. Indemnification. In the event that Shares purchased pursuant to
this Agreement are included in a registration statement under this Section 9,
Seller will indemnify and hold harmless each Selling Shareholder and each other
person, if any, who controls such Selling shareholder within the meaning of the
Securities Act, against any losses, claims, damages or liabilities, joint or
several, to which such Selling Shareholder or controlling person may become
subject under the Securities Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of are based
upon any untrue statement or alleged untrue statement of any material fact
contained, on the effective date thereof, in any registration statement pursuant
to which the Shares were registered under the Securities Act, any preliminary
prospectus or final prospectus contained therein, or any amendment or supplement
thereto, or arise out of or are based upon the omission or alleged omission to
state therein a material fact required to be stated therein or necessary to make
the statements therein not misleading, or arise out of or are based upon the
failure by Seller to file any amendment or supplement thereto that was required
to be filed under the Securities Act, and will reimburse such Selling
Shareholder and each such controlling person for any legal or any other expenses
reasonably incurred by them in connection with investigating or defending any
such loss, claim, damage, liability or action. Notwithstanding the foregoing,
Seller will not be liable in any such case to the extent that any such loss,
claim, damage, or liability arises out of or is based upon an untrue statement
or omission made in such registration statement, preliminary prospectus, final
prospectus or amendment or supplement in reliance upon and in conformity with
written information furnished to Seller through an instrument duly executed by
or on behalf of any Selling Shareholder specifically for use in the preparation
of such registration statement, preliminary prospectus, final prospectus, or
amendment or supplement.
It shall be a condition precedent to the obligation of Seller to take
any action pursuant to this Section that seller shall have received an
undertaking satisfactory to it from each Selling Shareholder to indemnify and
hold harmless Seller (in the same manner and to the same extent as set forth in
this Section), each director of Seller, each officer who shall sign such
registration statement, and any persons who control Seller within the meaning of
the Securities Act, with respect to any statement or omission from such
registration statement, preliminary prospectus, or any final prospectus
contained therein, or any amendment or supplement thereto, if such statement or
omission was made in reliance upon and in conformity with written information
furnished to Seller through an instrument duly executed by the indemnifying
party specifically for use in the preparation of such registration statement,
preliminary prospectus, final prospectus, or amendment or supplement.
Promptly following receipt by an indemnified party of notice of the
commencement of any action involving a claim referred to above in this Section
9.3, such indemnified party will, if a claim in respect thereof is to be made
against an indemnifying party, give written notice to the latter of the
commencement of such action. In case any such action is brought against an
indemnified party, the indemnifying party will be entitled to participate in and
to assume the defense thereof, jointly with any other indemnifying party
similarly notified, to the extent that it may wish, with counsel reasonably
satisfactory to such indemnified party, and after notice from the indemnifying
party to such indemnified party of its election to assume the defense thereof,
the indemnifying party will not be liable to such indemnified party for any
legal or other expenses subsequently incurred by the latter in connection with
the defense thereof.
9.2. Binding Provisions. The provisions of this Section 9 shall be
binding on the successors of Seller. No Shareholder may assign the provisions of
this Section 9 or all or any part of its or their rights or obligations
hereunder, except that in the event of a merger or consolidation in which the
Seller is not the survivor, the Seller shall assign and transfer, and successor
shall assume, the provisions of this Section 9.
9.3. Conflicts. To the extent that Seller's compliance with the
obligations set forth in Sections 9.1 through 9.4 above would conflict with or
otherwise cause a breach of or default under any of its existing obligations
pursuant to any agreements to which it currently is a party, Seller's failure to
comply with those obligations shall not be deemed a breach of this Agreement.
9.4. Liquidated Damages. In the event that the Company by December 15,
1999 shall fail to cause the Shelf Registration Statement with respect to the
Securities to be declared effective and shall fail to obtain all necessary
stockholder and NASDAQ approvals in order to enable Purchaser to freely sell the
Registrable Securities pursuant to the Shelf Registration, the Company shall pay
to the Purchaser for each month or portion thereafter until such Shelf
Registration Statement becomes effective an amount equal to two percent (2%) of
the purchase price paid for the Securities pursuant to this Agreement. Provided
that the Company shall continue to use its reasonable best efforts to cause such
Shelf Registration to become effective as promptly as practicable, the delivery
of such Common Stock shall be in full satisfaction of any liability on the part
of the Company for failing to register the Shares as provided herein; provided
further however, that such delivery shall not excuse the Company from the
obligation to register all of such Registrable Shares which obligation shall
continue.
10. Remedies Cumulative, and not Waived.
10.1. No right, power or remedy conferred upon any party shall be
exclusive, and each such right, power or remedy shall be cumulative and in
addition to every other right, power or remedy, whether conferred hereby or by
any such security or now or hereafter available at law or in equity or by
statute or otherwise.
10.2. No course of dealing between the parties, and no delay in
exercising any right, power or remedy conferred hereby or by any such security
or now or hereafter existing at law or in equity or by statute or otherwise,
shall operate as a waiver of or otherwise prejudice any such right, power or
remedy; provided, however, that this Section 10 shall not be construed or
applied so as to negate the provisions and intent of any statute which is
otherwise applicable.
11. Changes, Waivers, etc. Neither this Agreement nor any provision hereof
may be changed, waived, discharged or terminated orally, but only by a statement
in writing signed by the party against which enforcement of the change, waiver,
discharge or termination is sought.
12. Notices. All communications hereunder shall be in writing and if sent
to the Purchaser, shall be sufficient in all respects if personally 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
personally delivered, sent by registered mail, or by telecopy and confirmed to
the Company as follows:
Imatron Inc.
000 Xxxxxx Xxxxx Xxxx.
Xxxxx Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Attn: Chief Financial Officer
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
13. Survival of Representations and Warranties, etc. All representations
and warranties contained herein shall survive the execution and delivery of this
Agreement, any investigation at any time made by Purchaser or on its behalf, and
the sale and purchase of the Shares. All statements contained in any
certificate, instrument or other writing delivered by or on behalf of Seller
pursuant hereto or in connection with or contemplation of the transactions
herein contemplated (other than legal opinions) shall constitute representations
and warranties by Seller hereunder and not by the individual officer who signed
the certificate, instrument or writing by or on behalf of Seller.
14. Parties in Interest. All the terms and provisions of this Agreement
shall be binding upon and inure to the benefit of and be enforceable by the
respective successors and assigns of the parties hereto, whether so expressed or
not, and, in particular, shall inure to the benefit of and be enforceable by the
current holder or holders of any of the Shares.
15. Headings. The headings of the Sections and paragraphs of this Agreement
have been inserted for convenience of reference only and do not constitute a
part of this Agreement.
16. Choice of Law. It is the intention of the parties that the laws of
California shall govern the validity of this Agreement, the construction of its
terms and the interpretation of the rights and duties of the parties.
17. Counterparts. This Agreement may be executed concurrently 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.
18. Severability. In the event that any part of this Agreement is
determined by a court of competent jurisdiction to be unenforceable, the balance
of the Agreement shall remain in full force and effect.
IN WITNESS WHEREOF, the parties execute this Agreement as of the date set
forth below.
SELLER:
IMATRON INC.
By:
-----------------------------------
Chief Executive Officer
PURCHASER:
--------------------------------------
Signature
--------------------------------------
Address
--------------------------------------
City and Country
--------------------------------------
Facsimile Number
