Exhibit 99.1
COMPUTERIZED THERMAL IMAGING INC.
COMMON STOCK PURCHASE AGREEMENT
This Common Stock Purchase Agreement (this "Agreement") is entered into as of
July 9, 2003, between Computerized Thermal Imaging Inc., a Nevada corporation
(the "Company") and THERFIELD HOLDINGS LTD., IBC# 542 025, a limited liability
company formed under the laws of the British Virgin Islands (the "Investor").
The parties hereby agree as follows:
ARTICLE I.
SALE OF SECURITIES; CLOSING
SECTION 1.1 SALE AND PURCHASE OF SHARES. Subject to the terms and
conditions hereof, the Company will issue and sell to Purchaser, and Purchaser
agrees to purchase from the Company, 3,344,482 shares of the Company's common
stock (the "Shares") for a purchase price equal to USD $1 million (the "Purchase
Price"). Payment of the purchase price will be made by Purchaser in US Dollars
at the Closing by wire transfer to an account in the United States designated by
the Company. Wire instruction are set forth on Schedule 1.1.
SECTION 1.2 CLOSING. The closing of the purchase by the Purchaser and
the sale by the Company of the Shares shall be held at the offices of Xxxxx
Xxxxxx Xxxxxxxx LLP, counsel to the Company, at 0000 XX Xxxxx Xxxxxx, Xxxxx
0000, Xxxxxxxx, Xxxxxx, on July 9, 2003, or at such other time and place as the
Company and Purchaser may agree either in writing or orally. The closing
referred to in this Section 1.2 shall be hereinafter referred to as the
"Closing" and the date of any closing of a sale of Shares hereunder shall be the
"Closing Date."
SECTION 1.3 DELIVERY. At the Closing, in exchange for and in payment of
the purchase price, the Company will issue the Shares and deliver to Purchaser a
certificate in Purchaser's name representing the Shares purchased by Purchaser.
ARTICLE II.
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company hereby represents and warrants to Purchaser that the
statements in the following Sections of this Article II are true and correct as
of the date of this Agreement:
SECTION 2.1 ORGANIZATION AND STANDING. The Company is a corporation
duly organized and existing under the laws of the State of Nevada and is in good
standing under such laws. The Company has the requisite corporate power to own
and operate its properties and assets, and to carry on its business as presently
conducted.
SECTION 2.2 AUTHORIZATION. All corporate action on the part of the
Company, its directors and shareholders necessary for the authorization,
execution, delivery and performance of this Agreement by the Company, the
authorization, sale, issuance and delivery of the Shares and the performance of
the Company's obligations hereunder has been taken prior to the Closing. This
Agreement, when executed and delivered by the Company, will constitute a valid
and binding obligation of the Company enforceable against the Company in
accordance with its terms, subject to laws of general application relating to
specific performance, injunctive relief or other equitable remedies and
applicable bankruptcy, insolvency, reorganization or other laws of general
application relating to or affecting the enforcement of creditors' rights
generally.
SECTION 2.3 VALID ISSUANCE OF STOCK. When issued, sold and delivered in
accordance with the terms of this Agreement for the consideration provided for
herein, the Shares shall be duly authorized, validly issued, fully paid and
non-assessable and shall be free of any liens or encumbrances created by or
through the Company, except those restrictions on transfer described in this
Agreement and applicable state and federal securities laws.
SECTION 2.4 OFFERING VALID. Assuming the accuracy of the
representations and warranties of the Purchasers contained in Article III
hereof, the offer, sale and issuance of the Shares are exempt from the
registration requirements of the Securities Act of 1933, as amended (the
"Securities Act"), and are exempt from registration and qualification under the
registration, permit or qualification requirements of all applicable state
securities laws. Neither the Company nor any agent on its behalf has solicited
or will solicit any offers to sell or has offered to sell or will offer to sell
all or any part of the Shares to any person or persons so as to bring the sale
of such Shares by the Company within the registration provisions of the
Securities Act or any state securities law.
SECTION 2.5 DISCLOSURES The Company has furnished to Purchaser copies
of the following documents, in each case as filed with the Securities and
Exchange Commission ("SEC"): Annual Report on Form 10-K filed September 30,
2002; Proxy Statement filed November 8, 2002; Quarterly Report on Form 10-Q
filed November 14, 2002; Quarterly Report on Form 10-Q filed February 19, 2003,
Quarterly Report on Form 10-Q filed May 20, 2003 and the Current ReportsForm
8-Ks filed on February 11, 2003, March 24, 2003, May 9, 2003 and June 24, 2003
(collectively, the "Disclosure Documents"). The Disclosure Documents did not, as
of their respective dates, contain any untrue statement of a material fact or
omit to state a material fact necessary in order to make the statements
contained therein, in light of the circumstances under which they were made, not
misleading..
ARTICLE III.
REPRESENTATIONS AND WARRANTIES OF PURCHASER
Purchaser hereby represents and warrants to the Company that the statements in
the following Sections of this Article III are true and correct as of the date
of this Agreement:
SECTION 3.1 AUTHORIZATION. This Agreement constitutes Purchaser's valid
and legally binding obligation, enforceable in accordance with its terms except
as may be limited by applicable bankruptcy, insolvency, reorganization or other
laws of general application relating to or affecting the enforcement of
creditors' rights generally and the effect of rules of law governing the
availability of equitable remedies. Purchaser has full power and authority to
enter into this Agreement.
2
SECTION 3.2 INVESTMENT. Purchaser is acquiring the Shares for
investment for Purchaser's own account and not with the view to the public
resale or distribution thereof within the meaning of the Securities Act, and
Purchaser has no present intention of selling, granting any participation in, or
otherwise distributing the Shares. No other person has a direct or indirect
beneficial interest, in whole or in part, in the Shares. Purchaser understands
that the Shares have not been registered under the Securities Act by reason of a
specific exemption from the registration provisions of the Securities Act, which
exemption depends upon, among other things, the bona fide nature of Purchaser's
investment intent as expressed herein. Without limiting the foregoing,
Purchasers acknowledges, represents and warrants that the Shares are being
issued to Purchaser pursuant to, INTER ALIA, Regulation S promulgated under the
Securities Act and Purchaser shall comply in all respects with the provisions of
Regulation S with respect to the transfer and resale of the Shares.
SECTION 3.3 RELATIONSHIP TO COMPANY; SOPHISTICATION; EXPERIENCE.
Purchaser and/or Purchaser's representative(s) have such knowledge and
experience in financial, tax and business matters so as to enable Purchaser
and/or Purchaser's representative(s) to utilize the information made available
to Purchaser and/or Purchaser's representative(s) in connection with the
offering of the Shares, to evaluate the merits and risks of the prospective
investment, to make an informed investment decision with respect thereto and has
the capacity to protect Purchaser's own interests in connection with Purchaser's
acquisition of the Shares.
SECTION 3.4 RESTRICTIONS ON TRANSFER. Purchaser acknowledges that the
Shares must be held indefinitely unless the Shares are subsequently registered
under the Securities Act or the Company receives an opinion of counsel
satisfactory to the Company that such registration is not required. Purchaser is
aware of the provisions of Regulation S and Rule 144 promulgated under the
Securities Act which permit limited resales of stock purchased in a private
placement subject to the satisfaction of certain conditions. Purchaser further
acknowledges that, in the event all of the conditions of Regulation S and Rule
144 are not met, compliance with another registration exemption will be
required. Purchaser understands that persons proposing to sell private placement
securities using exemptions other than Regulation S and Rule 144 may be required
to provide substantial evidence supporting the use of an alternative exemption
and participants in such transactions do so at their own risk, and that,
therefore, there is no assurance that any exemption from registration allowing
transfer or disposition under the Securities Act will be available and that,
although regulation S and Rule 144 is not exclusive, the staff of the SEC has
expressed its opinion that persons proposing to sell private placement
securities other than in a registered offering and other than pursuant to
Regulation S and Rule 144 will have a substantial burden of proof in
establishing that an exemption from registration is available for such offers or
sales, that such persons and the brokers who participate in the transactions do
so at their own risk, and that, therefore, there is no assurance that any
exemption from registration under the Securities Act will be available or, if
available, will allow such person to dispose of, or otherwise transfer, all or
any portion of the Shares.
SECTION 3.5 ACCESS TO DATA. Purchaser has had an opportunity to discuss
the Company's business, management and financial affairs with the Company's
management and the opportunity to inspect Company facilities and such books and
records and material contracts as Purchaser deemed necessary to its
determination to purchase the Shares. Purchaser acknowledges receipt of the
Disclosure Documents.
3
SECTION 3.6 PURCHASER'S LIQUIDITY. Purchaser (a) has no need for
liquidity in Purchaser's investment, (b) is able to bear the substantial
economic risks of an investment in the Shares for an indefinite period and (c)
at the present time, can afford a complete loss of such investment.
SECTION 3.7 RISKS. Purchaser is aware that the Shares are highly
speculative and that there can be no assurance as to what return, if any, there
may be. Purchaser is aware that the Company may issue additional securities in
the future which could result in the dilution of Purchaser's ownership interest
in the Company.
SECTION 3.8 RELIANCE. Purchaser has relied only upon the written
representations of the Company contained in this Agreement and the information
contained in the Disclosure Documents in connection with the purchase of the
Shares. No other oral or written representations have been made to Purchaser by
the Company in connection with the offering of the Shares.
SECTION 3.9 INVESTMENT ENTITY. Purchaser is authorized and otherwise
duly qualified to purchase and hold the Shares; Purchaser has its principal
place of business as set forth on the signature page hereof; and Purchaser has
not been formed for the specific purpose of acquiring Shares in the Company.
SECTION 3.10 ACCREDITED INVESTOR. The Purchaser is an accredited
investor as defined in Rule 501(a) of Regulation D promulgated under the
Securities Act.
SECTION 3.11 FOREIGN PURCHASER. Purchaser is satisfied as to the full
observance of the laws of Purchaser's jurisdiction in connection with any
invitation to subscribe for the Shares, including (a) the legal requirements
with Purchaser's jurisdiction for the purchase of the Shares, (b) any foreign
exchange restrictions applicable to such purchase, (c) any governmental or other
consents that may need to be obtained, and (d) the income tax and other tax
consequences, if any, which may be relevant to the purchase, holding,
redemption, sale, or transfer of the Shares. Purchaser's subscription and
payment for, and Purchaser's continued beneficial ownership of, the Shares will
not violate any applicable securities or other laws of Purchaser's jurisdiction.
ARTICLE IV.
CONDITIONS TO PURCHASER'S OBLIGATIONS AT CLOSING
The obligations of Purchaser under Article I of this Agreement are
subject to the fulfillment or waiver, on or before the Closing, of each of the
following conditions, the waiver of which shall not be effective against
Purchaser unless waived by Purchaser, which consent may be given by written,
oral or telephone communication to the Company or its counsel:
SECTION 4.1 REPRESENTATIONS AND WARRANTIES TRUE. Each of the
representations and warranties of the Company contained in Article II shall be
true and correct in all material respects on and as of the Closing Date with the
same effect as though such representations and warranties had been made on and
as of the Closing Date.
4
SECTION 4.2 PERFORMANCE. The Company shall have performed and complied
in all material respects with all agreements, obligations and conditions
contained in this Agreement that are required to be performed or complied with
by it on or before the Closing Date and shall have obtained all approvals,
consents and qualifications necessary to complete the purchase and sale
described herein.
SECTION 4.3 SECURITIES EXEMPTIONS. The offer and sale of the Shares to
Purchaser pursuant to this Agreement shall be exempt from the registration
requirements of the Securities Act and the registration and/or qualification
requirements of all other applicable state securities laws.
SECTION 4.4 SEC FILINGS. The Company shall have delivered to Purchaser
copies of all disclosure documents filed by the Company with the SEC between the
date of this Agreement and the Closing Date.
ARTICLE V.
CONDITIONS TO COMPANY'S OBLIGATIONS AT CLOSING
The Company's obligation to sell and issue the Shares at the Closing is subject
to the fulfillment or waiver by the Company, on or before the Closing, of each
of the following conditions:
SECTION 5.1 REPRESENTATIONS AND WARRANTIES. The representations and
warranties made by Purchaser in Article III hereof shall be true and correct
when made and on the Closing Date as if made on and as of such Closing Date.
SECTION 5.2 CONSENTS AND WAIVERS. The Company shall have obtained any
and all consents and waivers necessary or appropriate for consummation of the
transactions contemplated by this Agreement.
SECTION 5.3 PAYMENT OF PURCHASE PRICE. Purchaser shall have delivered
to the Company the purchase price in accordance with the terms of this
Agreement.
SECTION 5.4 OTHER CONDITIONS. The conditions described in Article IV
hereof shall have been fulfilled.
ARTICLE VI.
RESTRICTIONS ON TRANSFERABILITY OF SECURITIES
SECTION 6.1 RESTRICTIVE LEGENDS. Each certificate representing the
Shares, and any other securities issued in respect of the Shares upon any stock
split, stock dividend, recapitalization, merger, consolidation or similar event
(except as otherwise permitted by the provisions of this Article VI) shall be
stamped or otherwise imprinted with legends in substantially the following form:
"THE SECURITIES EVIDENCED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND MAY NOT BE SOLD, TRANSFERRED,
ASSIGNED OR HYPOTHECATED UNLESS THERE IS AN EFFECTIVE REGISTRATION STATEMENT
UNDER SUCH ACT COVERING SUCH SECURITIES, THE SALE IS MADE IN ACCORDANCE WITH
REGULATION S AND RULE 144 UNDER THE ACT, OR THE COMPANY RECEIVES AN OPINION OF
COUNSEL FOR THE HOLDER OF THESE SECURITIES REASONABLY SATISFACTORY TO THE
COMPANY, STATING THAT SUCH SALE, TRANSFER, ASSIGNMENT OR HYPOTHECATION IS EXEMPT
FROM THE REGISTRATION AND PROSPECTUS DELIVERY REQUIREMENTS OF SUCH ACT."
5
ANY OTHER LEGENDS REQUIRED BY APPLICABLE FEDERAL AND STATE SECURITIES
LAWS.
The Company need not register a transfer of legended Shares and may
also instruct its transfer agent not to register the transfer of the Shares,
unless the conditions specified in each of the foregoing legends are satisfied.
SECTION 6.2 REMOVAL OF LEGEND AND TRANSFER RESTRICTIONS. Any legend
endorsed on a certificate pursuant to Section 6.1 and the stop transfer
instructions with respect to such legended Shares shall be removed, and the
Company shall issue a certificate without such legend to the holder of such
Shares if such Shares are registered under the Securities Act and a prospectus
meeting the requirements of Section 10 of the Securities Act is available or if
such holder satisfies the requirements of Rule 144(k).
ARTICLE VII.
MISCELLANEOUS
SECTION 7.1 GOVERNING LAW. This Agreement shall be governed in all
respects by the internal laws of the State of Oregon, without reference to
principles of conflict of laws or choice of law. The provisions of the UN
Convention on Contracts for the International Sale of Goods shall not apply.
SECTION 7.2 SURVIVAL. Unless otherwise set forth in this Agreement, the
representations, warranties and covenants made herein shall survive the
execution and delivery of this Agreement and the Closing for a period of one (1)
year following the Closing.
SECTION 7.3 SUCCESSORS AND ASSIGNS. Except as otherwise provided
herein, the provisions hereof shall inure to the benefit of, and be binding
upon, the successors, assigns, heirs, executors and administrators of the
parties hereto. 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.
SECTION 7.4 ENTIRE AGREEMENT; AMENDMENT. This Agreement and the
exhibits to this Agreement constitute the full and entire understanding and
agreement between the parties with regard to the subjects hereof and thereof,
and any and all other written or oral agreements relating to the subject matter
hereof existing between the parties hereto are expressly canceled. Any term of
this Agreement may be amended and the observance of any term of this Agreement
may be waived (either generally or in a particular instance and either
retroactively or prospectively), only with the written consent of the Company
and the Purchaser. Any amendment or waiver effected in accordance with this
Section 7.5 shall be binding upon the Company and the Purchaser and each future
holder of the Shares purchased hereunder.
6
SECTION 7.5 NOTICES, ETC. All notices and other communications required
or permitted hereunder shall be in writing and shall be made by electronic mail
or facsimile transmission with confirmation originals cdelivered by an
internationally recognized and reliable overnight courier service providing
confirmation of delivery, addressed (a) if to Purchaser, at Purchaser's address
set forth on Purchaser's signature page hereto, or at such other address as
Purchaser shall have furnished to the Company in writing, (b) if to any other
holder of any Shares, at such address as such holder shall have furnished the
Company in writing or, until any such holder so furnishes an address to the
Company, to and at the address of the last holder of such Shares who has so
furnished an address to the Company or (c) if to the Company, at the following
address:
Computerized Thermal Imaging Inc.
00000 XX 00xx Xxxxxx, Xxxxx 000
Xxxxxxxx, XX 00000
Attention: Chief Financial Officer
or at such other address as the Company shall have furnished to the Purchaser.
SECTION 7.6 COUNTERPARTS. This Agreement may be executed in any number
of counterparts, each of which shall be enforceable against the parties actually
executing such counterparts, and all of which together shall constitute one
instrument.
SECTION 7.7 HEADINGS. The headings and captions used in this Agreement
are used for convenience only and are not to be considered in construing or
interpreting this Agreement. All references in this Agreement to articles,
sections, paragraphs, exhibits and schedules shall, unless otherwise provided,
refer to sections and paragraphs hereof and exhibits and schedules attached
hereto, all of which exhibits and schedules are incorporated herein by this
reference.
SECTION 7.8 NO FINDER'S FEES. Each party represents that it neither is
nor will be obligated for any finder's or broker's fee or commission in
connection with this transaction. Purchaser agrees to indemnify and to hold
harmless the Company from any liability for any commission or compensation in
the nature of a finders' or broker's fee (and any asserted liability) for which
Purchaser or any of its officers, partners, employees, or representatives is
responsible. The Company agrees to indemnify and hold harmless Purchaser from
any liability for any commission or compensation in the nature of a finder's or
broker's fee (and any asserted liability) for which the Company or any of its
officers, employees or representatives is responsible.
SECTION 7.9 SEVERABILITY. If one or more provisions of this Agreement
are held to be unenforceable under applicable law, the parties agree to
renegotiate such provision in good faith. In the event that the parties cannot
reach a mutually agreeable and enforceable replacement for such provision, then
such provision(s) shall be excluded from this Agreement and the balance of the
Agreement shall be interpreted as if such provision(s) were so excluded and
shall be enforceable in accordance with its terms.
7
SECTION 7.10 ATTORNEY FEES. If any action at law or in equity is
necessary to enforce or interpret the terms of this Agreement or the exhibits
hereto, the prevailing party shall be entitled to reasonable attorneys' fees,
costs and disbursements in addition to any other relief to which such party may
be entitled.
SECTION 7.11 OFFICIAL LANGUAGE OF AGREEMENT. The parties understand and
agree that this document, including all attachments, has been prepared and
negotiated in the English language and that the English language the only
official language of this Agreement. The English language documents govern the
respective obligations of the parties, and are the only controlling legal
documents. If this Agreement or any documents to be executed pursuant to this
Agreement are translated into the Chinese language, such translations are for
the convenience of Purchaser only and have no binding legal effect. The parties
agree that in the event of conflicts, ambiguities, if any, or differences in
meaning between the English and Chinese versions, the English version
exclusively shall control.
SECTION 7.12 CONSENT TO JURISDICTION. THE PARTIES IRREVOCABLY AGREE
THAT ALL ACTIONS OR PROCEEDINGS IN ANY WAY ARISING OUT OF THIS AGREEMENT SHALL
BE LITIGATED IN FEDERAL COURTS HAVING SITUS WITHIN THE COUNTY OF MULTNOMAH,
STATE OF OREGON. PURCHASER HEREBY CONSENTS AND SUBMITS TO THE JURISDICTION OF
ANY FEDERAL COURT LOCATED WITHIN SUCH COUNTY AND STATE. THE PARTIES AGREE THAT
SERVICE OF PROCESS MAY BE MADE BY INTERNATIONAL COURIER DIRECTED TO A PARTY AT
THE ADDRESS SPECIFIED ABOVE OR IN ANY OTHER MANNER PERMITTED BY LAW. THE PARTIES
HEREBY HEREBY WAIVE ANY RIGHT THEY MAY HAVE TO TRANSFER OR CHANGE THE VENUE OF
ANY LITIGATION IN CONNECTION WITH THIS AGREEMENT.
[REST OF THIS PAGE INTENTIONALLY LEFT BLANK]
8
IN WITNESS WHEREOF, the parties hereto have executed this Common Stock Purchase
Agreement as of the date first set forth above.
COMPUTERIZED THERMAL IMAGING INC.
By: /S/ Xxxxxxx X. Xxxxxx
------------------------------------------
Title: Director, Chariman of the Board and CEO
THERFIELD HOLDINGS LTD a British Virgin
Islands Co.
By: /S/ Xxxxxx Xx Xxxxx
------------------------------------------
Title:
Address: c/o Xxxxxx Xx Xxxxx
Xx Xxxxx Group of Companies
XX Xxx 000
Xxxxx Xxxxxx 00000
9
