EXHIBIT 10.79
Agreement to Purchase
Name Date Amount Signatory
---- ---- ------ ---------
Parkdale LLC Sept. 2, 1999 $4,000,000 ▇▇▇▇▇ ▇▇▇▇
This document has been filed.
AGREEMENT TO PURCHASE SHARES
THIS AGREEMENT TO PURCHASE SHARES (the "Agreement") is entered into as of
this 2nd day of September, 1999, by and between Swissray International, Inc.
(hereinafter "Swissray"), and Parkdale LLC (hereinafter "Parkdale"), based on
the following premises.
PREMISES
WHEREAS, Swissray and Parkdale have been discussing various financing
alternatives involving straight common stock rather than convertible securities;
and
WHEREAS, Swissray and Parkdale have decided to reduce their agreement to
writing concerning purchases of Swissray's common stock (the "Shares"), which
purchases shall be made from time to time by Parkdale and/or its assigns.
AGREEMENT
NOW, THEREFORE, based on the mutual covenants and agreements hereinafter
set forth, which are incorporated herein by reference, and for other good and
valuable consideration, all of which the receipt and adequacy of are hereby
acknowledged by Swissray and Parkdale, the parties hereby agreed as follows:
1. PRICE AND NUMBER OF SHARES.
(a) Parkdale agrees to purchase the Shares as follows:
1,000,000 shares at $1.00 per share for $1,000,000
2,000,000 shares at $1.50 per share for $3,000,000
Parkdale shall have until March 1, 2000, to purchase the 3,000,000 Shares
and pay to Swissray $4,000,000, less agreed upon fees. Each closing shall be
deemed to have occurred on the date the purchase price, less fees, is wired to
Swissray or its attorney (the "Closing Date").
(b) The undersigned acknowledges that each certificate representing the
Shares unless registered pursuant to the Registration Rights Agreement, 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, THESE SECURITIES ARE ALSO
SUBJECT TO THE REGISTRATION RIGHTS SET FORTH IN EACH OF THAT
CERTAIN SUBSCRIPTION AGREEMENT AND REGISTRATION RIGHTS
AGREEMENT BY AND BETWEEN THE HOLDER HEREOF AND THE COMPANY,
A COPY OF EACH IS ON FILE AT THE COMPANY'S PRINCIPAL
EXECUTIVE OFFICE.
(ii) The Shares shall contain the following legend
until the effectiveness of the Registration Statement:
"No sale, offer to sell or transfer of the securities
represented by this certificate shall be made unless a
registration statement under the Federal Securities Act of
1933, as amended, with respect to such securities is then in
effect or an exemption from the registration requirement of
such Act is then in fact applicable to such securities."
(iii) After the effective date of the Registration
Statement the Shares shall not bear any restrictive legend.
2. PARKDALE REPRESENTATIONS.
Parkdale hereby represents and warrants to, and agrees with, Swissray as
follows:
(a) Concerning the Securities. The purchase of the Shares has been duly
authorized by all required corporate action on the part of Parkdale, 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.
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(b) Authority to Enter Agreement. This Agreement has been duly authorized,
validly executed and delivered on behalf of Parkdale and is a valid and binding
agreement in accordance with its terms, subject to general principals of equity
and to bankruptcy or other laws affecting the enforcement of creditors' rights
generally.
(c) This Agreement is not the result of, or being entered into 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.
(d) Parkdale and its representatives, as the case may be, has such
knowledge and experience in financial, tax and business matters so as to enable
the Parkdale to utilize the information made available to Parkdale in connection
with the terms of this Agreement to evaluate the merits and risks of an
investment in the Shares and to make an informed investment decision with
respect thereto.
3. SELLER REPRESENTATIONS.
(a) Concerning the Securities. This Agreement has been duly authorized by
all required corporate action on the part of Swissray, 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 Swissray and is a valid and binding
agreement in accordance with its terms, subject to general principals 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 by
Swissray, the issuance of the Shares, and the consummation by Swissray of the
other transactions contemplated by this Agreement, do not and will not conflict
with or result in a breach by Swissray of any of the terms or provisions of, or
constitute a default under, the (i) certificate of incorporation or by-laws of
Swissray, (ii) any indenture, mortgage, deed of trust, or other material
agreement or instrument to which Swissray 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 Swissray 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.
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(d) 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
in any jurisdiction; and no action, suit or proceeding is pending against or, to
the best knowledge of Swissray, threatened against or affecting, Swissray, any
of its subsidiaries or, to the best knowledge of Swissray, before any court or
arbitrator or any Governmental Body that, if adversely determined, would
prohibit, materially interfere with or adversely affect the issuance or
marketability of the Shares or render this Agreement or the Shares, or any
portion thereof, invalid or unenforceable.
4. ISSUANCE OF SHARES AND REGISTRATION.
(a) Subscription Agreement. The parties shall enter into Subscription
Agreements from time to time concerning the Shares to be purchased which
Subscription Agreements shall set forth the respective rights and obligations of
the parties as well as certain representations and warranties.
(b) Registration. The parties shall enter into a Registration Rights
Agreement whereby Swissray agrees to file a registration statement covering the
Shares within thirty (30) calendar days of the Closing Date on each purchase of
the Shares and if the registration statement is not declared effective within
ninety (90) calendar days of each applicable Closing Date, Swissray shall pay
Parkdale liquidated damages as later agreed upon between the parties. Swissray
represents that it shall at all times reserve and have available all Common
Stock necessary for registration of all the Shares purchased by Parkdale
pursuant to the terms of this Agreement.
5. LIMITS ON AMOUNT OF OWNERSHIP.
Notwithstanding the provisions hereof, in no event except with respect to a
conversion pursuant to redemption by Swissray if there is (a) a public
announcement that 50% or more of Swissray is being acquired, (b) a public
announcement that Swissray is being merged, or (c) a change in control, shall
the Parkdale be entitled to own the number of shares of Common Stock
beneficially owned by the Parkdale and its affiliates, and, would result in
beneficial ownership by the Parkdale and its affiliates of more than 4.99% of
the outstanding shares of Common Stock. For purposes of the proviso to the
immediately preceding sentence, beneficial ownership shall be determined in
accordance with Section 13(d) of the Securities Exchange Act of 1934, as amended
(the "1934 Act"), except as otherwise provided in -clause (1) of such proviso.
The Parkdale further agrees that if the Parkdale transfers or assigns any of the
Shares to a party who or which would not be considered such an affiliate, such
assignment shall be made subject to the transferee's or assignee's
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specific agreement to be bound by the provisions of this Section as if such
transferee or assignee were a signatory to this Agreement.
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 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 Swissray, at
SWISSRAY International, Inc., ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇ with a copy by facsimile and mail to ▇▇▇▇ ▇. ▇▇▇▇▇, P.C., ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ and (ii) if to the undersigned, at the
address for correspondence set forth on the signature page, or at such other
address as may have been specified by written notice given in accordance with
this paragraph 6(c).
(d) This Agreement shall be enforced, governed and construed in all
respects in accordance with the laws of the State of New York, as such laws are
applied by New York courts to agreements entered into, and to be performed in,
New York by and between residents of New York, and shall be binding upon the
undersigned, the undersigned's heirs, estate, legal representatives, successors
and assigns and shall inure to the benefit of Swissray, its successors and
assigns. If any provision of this Agreement is invalid or unenforceable under
any applicable statue or rule of law, then such provisions shall be deemed
inoperative to 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 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. An executed facsimile copy of this
Agreement shall be effective as an original.
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SIGNATURE PAGE
Name: Parkdale LLC
Attention: ▇▇▇▇▇ ▇▇▇▇
Address: Corporate Center, Widward ▇▇▇
▇▇▇▇ ▇▇▇ ▇▇▇▇
▇.▇. ▇▇▇ ▇▇▇▇▇ SMB
Grand Cayman, Cayman Islands
(p) ▇▇▇-▇▇▇-▇▇▇▇
(f)
Name: _____________________
Title:_____________________
SWISSRAY ACCEPTANCE
This Agreement to Purchase Shares is accepted
and agreed to this 2nd day of September, 1999
SWISSRAY INTERNATIONAL INC.
BY /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, its Chairman and President
duly authorized