Agreement For The Purchase of Common Stock
Dated October 3, 2003
THIS AGREEMENT ("Agreement") made as of the 3rd day of October 2003 by
and between Intraop Medical Corporation, a Nevada corporation
(formerly Xxxxxxxxxxxxxxx.xxx, Inc. ("Digital")), Xxxxx Xxxxx
("Xxxxx"), certain other holders of shares of Digital (collectively
with Xxxxx, the "Selling Shareholders"), Peyton, Chandler & Xxxxxxxx,
Inc. ("PCS") and Xxxxxxx From ("From") for himself and as
representative of certain individuals as described herein.
Recitals
A. On October 3, 2003, the parties executed an Agreement for the
Purchase of Common Stock and such agreement was amended by the parties
on January 9, 2004 (the "Original Agreement"). The parties are
entered into an Escrow Agreement on October 3, 2003 for the purpose of
facilitating the transactions described in the Original Agreement (the
"Escrow Agreement").
B. As evidenced by the course of conduct of the parties since the
signing of the Original Agreement, it has become apparent that the
Original Agreement, including the amendment, did not accurately reflect
the terms and conditions of the transaction described therein as the
parties had intended at the time such Original Agreement and amendment
were executed.
C. In order to avoid confusion and to ensure that the transaction is
correctly described in a single accurate document, the parties desire
to amend and restate the Original Agreement in its entirety as of
October 3, 2003 as follows:
AGREEMENT
In consideration of the mutual promises, covenants, and representations
contained herein, THE PARTIES HERETO AGREE AS FOLLOWS:
SECTION 1. SALE OF SECURITIES.
1.1 Sale of Securities. Subject to the terms and conditions hereof,
at the Closing, the Selling Shareholders will transfer and sell to PCS
and/or its assigns, and PCS and/or its assigns (the "Purchasers") agree
to purchase from the Selling Shareholders, an aggregate of 2,264,735
shares (after taking into account a 20-for-1 forward stock split) (the
"Shares") for a total aggregate purchase price of Four Hundred Fifty
Thousand Dollars ($450,000) (the "Purchase Price").
1.2 Deposit. On execution of this Agreement PCS will deposit with
Xxxxxxxx Xxxx, Esq., as escrow agent (the "Escrow Agent") under the
Escrow Agreement, the amount of Fifty Thousand ($50,000) to be applied
to the Purchase Price. The deposit will be held in escrow by the
Escrow Agent until (i) all stock certificates representing the Shares,
along with irrevocable stock powers for each certificate, signed by
each Selling Shareholder with a Medallion Guarantee, and (ii) the
balance of the Purchase Price has been deposited into escrow. The
certificates and Purchase Price will then be distributed by the Escrow
Agent in accordance with the terms of the Escrow Agreement.
1.3 Effect of Stock Split. It is understood and acknowledged by the
parties that the certificates to be deposited into escrow will not
reflect the 20-for-1 forward stock split which Digital's Board of
Directors approved on September 24, 2003, and the new certificates to
be issued to the Purchasers will reflect such stock split.
1.4 Payment of Balance of Purchase Price and Closing. On or before
December 1, 2003, the Purchasers shall deposit with the Escrow Agent
the balance of the Purchase Price and closing for the purchase shall
occur within five (5) days thereafter. In the event the balance is not
paid by December 1, 2003, all funds in escrow will be returned to the
Purchasers and all certificates and other documents will be returned to
the Selling Shareholders. At or after the Closing (i) PCS will
instruct the Escrow Agent as to allocation of the Shares among the
Purchasers, including assignees of PCS and (ii) Xxxxx will instruct the
Escrow Agent as to allocation of the Purchase Price among the Selling
Shareholders, including any amounts allocated to Xxxxx in connection
with his agreement to cancel shares as described herein.
SECTION 2. REPRESENTATIONS AND WARRANTIES
Xxxxx, on behalf of himself, Digital and the Selling Shareholders,
represents and warrants to PCS the following:
2.1 Organization. Digital is a corporation duly organized, validly
existing, and in good standing under the laws of Nevada, has all
necessary corporate powers to own properties and carry on a business,
and is duly qualified to do business and is in good standing in Nevada.
All actions taken by the incorporators, directors and/or shareholders
of Digital have been valid and in accordance with the laws of the State
of Nevada.
2.2 Capital. The authorized capital stock of digital consists of
50,000,000 shares of Common Stock, $.001 par value, of which 22,284,000
Shares are issued and outstanding. There are 5,000,000 shares of
Preferred Stock, $001 par value, of which none are issued and
outstanding. All outstanding Shares are fully paid and non-assessable,
free of liens, encumbrances, options, restrictions and legal or
equitable rights of others not a party to this Agreement. Except as
set forth in Digital's financial statements as filed with the
Securities and Exchange Commission, at the Closing, there will be no
outstanding subscriptions, options, rights, warrants, convertible
securities, or other agreements or commitments obligating Digital to
issue or to transfer from treasury any additional shares of its capital
stock.
2.3 Financial Statements. The audited balance sheets as of December
31, 2002, the Company's fiscal year end, and the related statements of
income and retained earnings for the period then ended have been
prepared in accordance with generally accepted accounting principles
consistently followed by Digital throughout the periods indicated, and
fairly present the financial position of Digital as of the date of the
balance sheet included in the financial statements, and the results of
its operations for the periods indicated.
2.4 Absence of Changes. Since December 31, 2002, there has been no
change in the financial condition or operations of Digital, except
changes in the ordinary course of business, which changes have not in
the aggregate been materially adverse.
2.5 Filings with SEC and other Government Agencies. Digital has filed
all required filings with the Securities and Exchange Commission and
with other Government, including the State of Nevada. On and after
the Closing, PCS will have full responsibility for filing with the SEC
any documents required to be filed by PCS and/or the Purchasers.
2.6 Liabilities. Digital did not as of December 31, 2002, and at the
date of this Agreement, and will not, as of Closing, have any debt,
liability, or obligation of any nature, whether accrued, absolute,
contingent, or otherwise, and whether due or to become due, that is not
reflected in Digital's balance sheet as of December 31, 2002 and the
unaudited balance sheet dated September 30, 2003. Digital is not aware
of any pending, threatened or asserted claims, lawsuits or
contingencies involving Digital or its shares of equity securities.
There is no dispute of any kind between Digital and any third party,
and no such dispute will exist at the Closing of this Transaction. At
the Closing, Digital will be free from any and all liabilities, liens,
claims and/or commitments.
2.7 Tax Returns. Digital will file all federal, state, and local tax
returns required by law through December 31, 2002. Digital has paid,
or will pay by the Closing, all taxes, assessments, and penalties due
and payable. No federal income tax returns of Digital have been
audited by the Internal Revenue Service. The provisions for taxes, if
any, reflected in Digital's balance sheet as of December 31, 2002, is
adequate for any and all federal, state, county, and local taxes for
the period ending on the date of that balance sheet and for all prior
periods, whether or not disputed. There are no present disputes as to
taxes of any nature payable by digital as of the Closing, there shall
be no taxes of any kind due or owing.
2.8 Ability to Carry Out Obligations. The Selling Shareholders each
have the right, power and authority to perform their obligations under
this Agreement. The execution and delivery of this Agreement by Xxxxx
and the performance of his and the Selling Shareholders' obligations
hereunder will not cause, constitute, or conflict with or result in (a)
any breach or violation or any of the provisions of or constitute a
default under any license, indenture, mortgage, charter, instrument,
articles of incorporation, bylaw, or other agreement or instrument to
which Digital, its officers or directors or any of the Selling
Shareholders are a party, or by which they may be bound, nor will any
consents or authorizations of any party other than those hereto be
required, (b) an event that would cause PCS (and/or its assigns) to be
liable to any party or (c) an event that would result in the creation
or imposition of any lien, charge or encumbrance on any asset of
Digital or upon the Shares.
2.9 Full Disclosure. None of representations and warranties made by
or in any certificate or memorandum furnished or to be furnished by the
Selling Shareholders, Digital, or on their behalf, contains or will
contain any untrue statement of a material fact, or omit any material
fact the omission of which would be misleading.
2.10 Contracts, Leases and Assets. Digital is not a party to any
contract, agreement or lease. No person holds a power of attorney from
Digital. At the Closing, Digital will have no assets or liabilities.
2.11 Compliance with Laws. Digital has complied with, and is not in
violation of any federal, state, or local statute, law, and/or
regulation pertaining to Digital. Digital has complied with all
federal and state securities laws in connection with the offer, sale
and distribution of its securities. At the time Digital sold the
Shares to the Selling Shareholders, Digital was entitled to use the
exemptions provided by the Securities Act of 1933 relative to the sale
of its Shares. The Shares are being sold in a private transaction
between the Selling Shareholders and the Purchasers, and it is
understood that the Shares are subject to trading restrictions under
the Securities Act of 1933, as amended and the rules thereunder.
2.12 Litigation. Digital is not (and has not been) a party to any
suit, action, arbitration, or legal administrative, or other
proceeding, or pending governmental investigation. To the best
knowledge of Xxxxx, there is no basis for any such action or proceeding
and no such action or proceeding is threatened against Digital.
Digital is not subject to or in default with respect to any order,
writ, injunction, or decree of any federal, state, local, or foreign
court, department, agency, or instrumentality.
2.13 Conduct of Business. Prior to the Closing, Digital shall conduct
its business in the normal course, and shall not (without prior written
approval of PCS) (i) sell, pledge, or assign any assets, (ii) amend its
certificate of Incorporation or Bylaws, (iii) declare dividends, redeem
or sell stock or other securities, (iv) incur any liabilities, except
in the normal course of business, (v) acquire or dispose of any assets,
enter into any contract, guarantee obligations of any third party, or
(vi) enter into any other transaction.
2.14 Corporate Documents. Each of the following documents, which are
true, complete and correct in all material respects, will be submitted
at the Closing:
(i) Certificate of Incorporation;
(ii) Bylaws;
(iii) Consents of Shareholders;
(iv) Consents of the board of directors;
(v) List of officers and directors;
(vi) Balance Sheet as of December 31, 2002, together with other
financial statements, if any, described in Section 2.3;
(vii) Secretary of State Filing Receipt;
(viii) Copies of all federal and state income tax returns, if any,
of Digital;
(ix) Stock register and stock certificate records of Digital.
2.15 Closing Documents. All minutes, consents or other documents
pertaining to Digital to be delivered at the Closing shall be valid and
in accordance with the laws of Nevada.
2.16 Title. Each Selling Shareholder has good and marketable title to
all of the Shares being sold by him pursuant to this Agreement. The
Shares will be, at the Closing, free and clear of all lines, security
interests, pledges, charges, claims, encumbrances and restrictions of
any kind. None of the Shares are or will be subject to any voting
trust or agreement. No person holds or has the right to receive any
proxy or similar instrument with respect to such Shares. Except as
provided in this Agreement, the Selling Shareholders and Digital are
not parties to any agreement which offers or grants to any person the
right to purchase or acquire any of the Shares. There is no applicable
local, state or federal law, rule, regulation or decree which would, as
a result of the purchase of the Shares hereunder, impair, restrict or
delay voting rights with respect to the Shares.
2.17 Representations. All representations shall be true as of the
Closing and all such representations shall survive the Closing.
SECTION 3. COVENANTS AND AGREEMENTS OF XXXXX WITH
RESPECT TO RETAINED SHARES
3.1 Retained Shares. Upon completion of the Closing, Xxxxx will
retain control of his Twenty Million (20,000,000) common shares of
Digital (the "Retained Shares").
3.2 Cancellation of Shares. In exchange for allocation of a portion
of the Purchase Price hereunder, Xxxxx hereby agrees that up to
19,982,265 of his Retained Shares may be cancelled and retired by
Digital at any time, effective upon written notice of same by Digital
to Xxxxx. Digital may allow Xxxxx to retain a portion of his Retained
Shares. Upon receipt of written notice of cancellation, Xxxxx shall
tender to Digital the certificate representing the Retained Shares
(which may be in pre-split amounts) for cancellation. Digital will
promptly deliver to Xxxxx a certificate representing the retained
Shares not cancelled and retired. Failure by Xxxxx to deliver his
certificate will not vitiate the cancellation, which shall be effective
upon notice to Xxxxx, but delivery of a certificate or declaration of
lost certificate with appropriate indemnity shall be required before
Digital is obligated to deliver Xxxxx a certificate for the uncancelled
Retained Shares.
3.3 Digital Capitalization. Xxxxx will not to sell, cancel, or
otherwise dispose of any of his Retained Shares that are subject to
cancellation unless agreed to by Digital. Digital will not change its
capitalization, other than the cancellation of certain warrants or in
connection with any proposed merger, until PCS advises Digital that it
is determined a merger with an operating company will not occur.
Digital agrees to provide PCS and From advance notice if considering
any changes to Digital's capitalization and prior to making any
changes.
3.4 Understandings With Respect to Other Shares. The parties hereto
acknowledge that the Selling Shareholders will retain 19,265 common
shares and Xxxxx will retain at least 17,735 share. Such shares are
not subject to the provisions of this Agreement.
SECTION 4. INVESTMENT INTENT
4.1 Transfer Restrictions. PCS, on behalf of itself and its assigns,
agrees that the securities being acquired pursuant to this Agreement
may be sold, pledged, assigned, hypothecated or otherwise transferred,
with or without consideration ("Transfer") only pursuant to an
effective registration statement under the Act of 1933, as amended (the
"Act") or pursuant to an exemption from registration under the Act, the
availability of which is to be established to the satisfaction of
Digital. PCS, on behalf of itself and its assigns, agrees, prior to
any transfer, to give written notice to Digital expressing its desire
to effect the transfer and describing the proposed Transfer. Digital
will not unduly delay or refuse to render a legal opinion to permit
shareholder of digital to transfer their securities, once a public
market for the Shares develops.
SECTION 5. CLOSING
5.1 Closing. The Closing of this transaction will occur when all of
the documents and consideration described below have been delivered
(the "Closing"). Unless the Closing of this transaction takes place on
or before December 1, 2003, then either party may terminate this
Agreement. If this Agreement is terminated due to the failure of the
Selling Shareholders to provide the documents specified in Section
2.14, or the documents listed below in Section 5.2, then all
consideration paid by PCS shall be returned to PCS. If this Agreement
is terminated by the Selling Shareholders due to the failure of PCS to
provide the consideration specified below, then the deposit previously
paid by PCS will be forfeited to the Selling Shareholders and PCS will
have no further liability to the Selling Shareholders. This Agreement
can be terminated in the event of any material breach by either party.
5.2 Documents to be Delivered at Closing. As part of the Closing,
those documents listed in 2.14 of this Agreement, as well as the
following documents, in form reasonably acceptable to counsel to the
parties, shall be delivered:
(a) By the Selling Shareholders:
(i) stock certificate or certificates, along with stock powers,
representing Selling Shareholders shares;
(ii) financial statements of Digital including a balance sheet
dated as of December 31, 2002 and statements of operations,
stockholders' equity and cash flows for the twelve month period then
ended; along with unaudited balance sheets through June 30, 2003;
(iii) true and correct copies of all of the business and corporate
records of Digital, including but not limited to correspondence files,
bank statements, checkbooks, savings account books, minutes of
shareholder and directors meetings or consents, financial statements,
shareholder listings, stock transfer records, agreements and contracts;
and
(iv) such other documents of Digital as may be reasonably required
by PCS.
The financial statements of Digital shall be done in accordance with
generally accepted accounting standards, and the financial statements
covered by the report present fairly, in all material respects, the
financial position of Digital as of December 31, 2002, and the results
of its operations and its cash flows for the twelve months ended
December 31, 2002, in conformity with generally accepted accounting
principles.
(b) By PCS:
(i) wire transfer to Xxxxxxxx Xxxx, Esq. COLTAF Trust Account,
the amount of $400,000 representing the balance of the payment for the
Purchase Price for the Shares.
WIRE TRANSFER INSTRUCTIONS
Xxxxxxxx Xxxx, Attorney at Law
COLTAF Trust Account
KeyBank, N.A.
0000 Xxxx Xxxxx Xxxxxx
Xxxxxx, Xxxxxxxx
Account Name: Xxxxxxxx Xxxx, Attorney at Law Trust Account
Account Number: -----------
ABA (Routing) Number: 0000-0000-0
SECTION 6. REMEDIES
6.1 Arbitration. Any controversy of claim arising out of, or relating
to, this Agreement, or the making, performance, or interpretation
thereof, shall be settled by arbitration in Utah, in accordance with
the Rules of the American Arbitration Association then existing, and
judgment on the arbitration award may be entered in any court having
jurisdiction over the subject matter of the controversy.
6.2 Termination. In addition to any other remedies, PCS may terminate
this Agreement, if at the Closing, the Selling Shareholders have failed
to comply totally with all material terms of this Agreement, have
failed to supply any documents required by this Agreement unless they
do not exist, or have failed to disclose any material facts which could
have a substantial effect on any part of this transaction.
6.3 Indemnification. The Selling Shareholders and digital singly,
jointly and severally, agree to indemnify PCS against all actual
losses, damages and expenses caused by (i) any material breach of this
Agreement by them or any material misrepresentation of the Selling
Shareholders contained herein, or (ii) any misstatement of a material
fact or omission to state a material fact required to be stated herein
or necessary to make the statements herein not misleading.
6.4 Indemnification Non-Exclusive. The foregoing indemnification
provision is in addition to, and not derogation of any statutory,
equitable or common law remedy any party may have for breach of
representation, warranty, covenant or agreement.
SECTION 7. MISCELLANEOUS
7.1 Captions and Headings. The article and paragraph headings
throughout this Agreement are for convenience and reference only, and
shall in no way be deemed to define, limit, or add to the meaning of
any provision of this Agreement.
7.2 No Oral Change. This Agreement and any provision hereof, may not
be waived, changed, modified, or discharged, orally, but only by an
agreement in writing signed by the party against whom enforcement of
any waiver, change, modification, or discharge is sought.
7.3 Non Waiver. Except as otherwise expressly provided herein, no
waiver of any covenant, condition, or provision of this Agreement shall
be deemed to have been made unless expressly in writing and signed by
the party against whom such waiver is charged; and (i) the failure of
any party to insist in any one or more cases upon the performance of
any of the provisions, covenants, or conditions of this Agreement or to
exercise any option herein contained shall not be construed as a waiver
or relinquishment for the future of any such provisions, covenants, or
conditions, (ii) the acceptance of performance of anything required by
this Agreement to be performed with knowledge of the breach or failure
of a covenant, condition, or provision hereof shall not be deemed a
waiver of such breach or failure, and (iii) no waiver by any party of
one breach by another party shall be construed as a waiver with respect
to any other or subsequent breach.
7.4 Time of Essence. Time is of the essence of this Agreement and of
each and every provision hereof.
7.5 Entire Agreement. This Agreement, including any and all
attachments hereto, if any, contains the entire Agreement and
understanding between the parties hereto, and supersedes all prior
agreements and understandings, including, but not limited to, the
Original Agreement, which each party acknowledges is of no force or
effect and is entirely amended and restated hereby. Each party
expressly waives any liability whatsoever under the terms of the
Original Agreement and agrees to look solely to this Agreement
regarding the subject matter hereof.
7.6 Significant Changes. The Selling Shareholders understand that
significant changes may be made in the capitalization and/or stock
ownership of Digital, which changes could involve a reverse stock split
and/or the issuance of additional Shares, thus possibly having a
dramatic negative effect on the percentage of ownership and/or number
of Shares owned by present shareholders of Digital.
7.7 Counterparts. This Agreement may be executed simultaneously in
one or more counterparts, each of which shall be deemed an original,
but all of which together shall constitute one and the same instrument.
Facsimile signatures will be acceptable to all parties.
7.8 Notices. All notices, requests, demands, and other communications
under this Agreement shall be in writing and shall be deemed to have
been duly given on the date of service if served personally on the
party to whom notice is to be given, or on the third day after mailing
if mailed to the party to whom notice is to be given, by first class
mail, registered or certified, postage prepaid, or on the second day if
faxed, and properly addressed or faxed as follows:
If to the Selling Shareholders:
Xxxxx Xxxxx
P. X. Xxx 0000
Xxxx Xxxx Xxxx, Xxxx 00000
Phone - 000-000-0000
Fax - 000-000-0000
Email - xxxxxxxxxxxx@xxxxxxxxx.xxx
If to PCS:
Peyton, Chandler & Xxxxxxxx, Inc.
000 Xxxxxxx Xxxxxx, Xxxxx 000-X
Xxxxxxxxx, XX 00000
Phone - 000-000-0000
Fax - 000-000-0000
Email - xxxxx@xxxxxxxxx.xxx
with copies to:
Xxxx X. Xxx
VentureVest Capital Corporation
0000 Xxxx Xxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxx
Phone - 000-000-0000
Fax - 000-000-0000
Email - xxxx@xxxxxxxxxxx.xxx
7.9 Binding Effect. This Agreement shall inure to and be binding upon
the heirs, executors, personal representatives, successors and assigns
of each of the parties to this Agreement.
7.10 Effect of Closing. All representations, warranties, covenants,
and agreements of the parties contained in this Agreement, or in any
instrument, certificate, opinion, or other writing provided for in it,
shall be true and correct as of the closing and shall survive the
Closing of this Agreement.
7.11 Mutual Cooperation. The parties hereto shall cooperate with each
other to achieve the purpose of this Agreement, and shall execute such
other and further documents and take such other and further actions as
may be necessary or convenient to effect the transaction described
herein.
In witness whereof, this Agreement has been duly executed by the
parties hereto as of the date first above written.
XXXXXXXXXXXXXXX.XXX, INC.
By: /s/ Xxxxx Xxxxx
Xxxxx Xxxxx - President
THE SELLING SHAREHOLDERS
By: /s/ Xxxxx Xxxxx
Xxxxx Xxxxx - Representing Selling Shareholders
PEYTON, CHANDLER & XXXXXXXX, INC.
By: /s/ Xxxxxxx From
Xxxxxxx From, Principal
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