EXHIBIT 2.1
RESCISSION AND TRANSFER AGREEMENT
THIS Rescission AND TRANSFER AGREEMENT (this "Agreement") is made and
entered into as of June 30, 1998, by and between those persons designated on the
signature page hereof as "AI Shareholders" and hereinafter collectively referred
to as "the AI Shareholders"; those persons designed on the signature page hereof
as the "C Group" and hereinafter collectively referred to as "the C Group"; and
AccuImage Diagnostics Corp., a Nevada corporation ("ADC"). As used in this
agreement, the terms "party" or "parties" shall refer to a person executing this
Agreement and shall include such persons or persons to whom such person is a
successor in interest as a shareholder of AI or of ADC and of the agreements
referred to herein.
RECITALS:
WHEREAS, the AI Shareholder parties owned all of the issued and
outstanding shares of AccuImage, Inc., a Nevada corporation ("AI"); and
WHEREAS, AI owned certain three dimensional medical imaging technology (the
"AI Technology"; and
WHEREAS, in 1996, the C Group agreed to acquire Black Pointe Holdings,
Inc., a Nevada corporation and rename it "AccuImage Diagnostics Corp.", and the
parties agreed through a series of transactions (the "Acquisition and Financing
Transactions") for the AI Shareholders to contribute to ADC the AI Technology
and for the Black Pointe Group to provide certain financing relating to ADC; and
WHEREAS, in consideration of the contributions to be made by the respective
parties, the parties agreed upon an allocation of the shares of ADC common stock
(the "Shares") in anticipation of the Acquisition and Financing Transactions
being consummated as agreed and as described above, and as part of that
allocation the AI Shareholders received 1,523,850 shares of ADC common stock;
and
WHEREAS, the Acquisition and Financing Transaction was never completed as
originally contemplated, and certain of the expected consideration was never
received by the parties; and
WHEREAS, AI Technology has been acquired by ADC through an exchange of ADC
common stock with the shareholders of AI pursuant to an Stock Option Agreement
dated November 1, 1996, pursuant to which ADC was granted an option to acquire
all of the issued and outstanding shares of AI which option was exercised
effective July 31, 1997; and
WHEREAS, the beneficial ownership of the AI shares has been acquired by ADC
and AI has become a wholly-owned subsidiary of ADC; and
WHEREAS, the AI Shareholders recognize that they are not entitled to
own the Shares they originally received, and the parties desire to rescind the
issuance of ADC shares to the AI Shareholders, and to agree as to the allocation
among the C Group of such shares and certain of the ADC shares of common stock
received by the AI Shareholders pursuant to the exercise of the Exchange
Agreement; and
WHEREAS, the AI Shareholders and the C Group subsequent to the agreements
provided for in connection with the Acquisition and Financing Transactions have
made certain transfers of the rights provided for herein which are intended to
be reflected by the allocations of shares of ADC common stock as hereinafter
provided.
NOW, THEREFORE, in consideration of these premises and the mutual covenants
and agreements herein contained and other valuable consideration, the receipt
and adequacy of which the parties hereto acknowledge, the parties agree as
follows:
1. Mutual Rescission. The issuance of 1,523,850 shares of ADC common stock
to the AI Shareholders and the agreement of the AI Shareholders to transfer the
AI Technology to ADC pursuant to the Acquisition and Financing Transaction are
hereby rescinded and are declared to be of no further force or effect.
2. Disposition of Consideration Received. AI Shareholders shall surrender,
without consideration, an aggregate of 2,000,000 shares of ADC common stock (the
"Shares"), which includes the 1,523,850 shares described above, in the
respective amounts set forth in Schedule A. The shares so surrendered shall then
be allocated to the C Group in accordance with Schedule B which each member of
the C Group agrees is the accurate, proper and agreed upon allocation of such
shares among the C Group shareholders. The parties agree that the C Group is
entitled to ownership of all of the shares of ADC shares of common stock
surrendered by the AI Shareholders. The parties agree this Agreement accurately
describes the allocation of the Shares among the parties and hereby release ADC,
AI and each other from any claims relating thereto other than the agreements
provided for herein.
3. Investment Representations; Restrictions on Transfer. Each party
represents and warrants to each other, to AI and to ADC that:
A. Each is aware that the Shares have not been registered under the
Securities Act by reason of their issuance in a transaction exempt from the
registration and prospectus delivery requirements of the Securities Act pursuant
to Section 4(2) and Regulation D thereof, and that they must be held by each C
Group shareholder for an indeterminate period and each C Group shareholder must
therefore bear the economic risk of such investment indefinitely, unless a
subsequent disposition thereof is registered under the Securities Act or is
exempt from registration.
B. Each instrument representing the Shares may be endorsed with the
following legend:
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 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.
C. ADC need not register a transfer of legended Shares and may
instruct its transfer agent not to register the transfer of the Shares, unless
the foregoing legend is satisfied.
D. In no event shall any party sell any shares of ADC common stock
owned by such party in an open market transaction prior to October 1, 1998. Each
party agrees to surrender his shares to ADC for imposition of a legends
reflecting the foregoing.
E. Each party has the knowledge and experience in financial and
business matters to evaluate the merits and risks of the proposed investment.
F. Each party is acquiring the Shares for his own account, for
investment, and without any present intention to engage in a distribution
thereof.
G. Each party warrants that he is either and original ADC shareholder
or the rightful successor to such original shareholder holder and that he is
entitled to receive the transferred Shares pursuant to this Agreement.
4. Miscellaneous.
A. Counterpart. This Agreement may be executed in one or more
counterparts, and it is not necessary that signature of all parties appear on
the same counterpart, but such counterparts together shall constitute one and
the same agreement.
B. Successors. This Agreement shall inure to the benefit of and be
binding upon the parties hereto, their respective successors, and no other
person shall have any right or obligation hereunder.
C. Governing Law. This Agreement shall be governed by, and construed
in accordance with, the laws of the State of California.
D. Arbitration. Any controversy or claim between or among the parties,
their agents, employees and affiliates, including but not limited to those
arising out of or relating to this Agreement, including without limitation any
claim based on or arising from an alleged tort, shall, at the option of any
party, be resolved through mandatory arbitration in accordance with the rules
then in effect of the American Arbitration Association ("AAA") and Title 9 of
the U. S. Code. The location of the arbitration shall be in San Francisco,
California. The arbitrator or arbitrators shall be generally skilled in the
legal and business aspects of the subject matter at issue. The arbitrators shall
not be entitled to award punitive damages. Judgment upon the award rendered may
be entered in any court having jurisdiction.
E. Attorneys Fees. If any legal action or any arbitration or other
proceeding is brought for the enforcement of this Agreement or because of an
alleged dispute, breach, default, or misrepresentation in connection with any of
the provisions of this Agreement, the successful or prevailing party or parties
will be entitled to recover reasonable attorney fees and other costs incurred in
that action or proceeding, in addition to any other relief to which it or they
may be entitled.
F. Entire Agreement. This Agreement (including all attachments hereto)
comprises the entire agreement between the parties hereto as to the subject
matter hereof and supersedes all prior agreements and understandings between
them relating thereto. Each party may extend the time for, or waive the
performance of, any of the obligations of the other, waive any inaccuracies in
the representations or warranties of the other, or waive compliance by the other
with any of the covenants or conditions contained in this Agreement, but only by
an instrument in writing signed by the party granting such extension or waiver.
G. Headings. The headings of the sections of this Agreement have been
inserted for convenience of reference only and shall not be deemed to be a part
of this Agreement.
IN WITNESS WHEREOF, the parties have duly executed and delivered this
Agreement, all as of the day and year first above written.
AccuImage Diagnostics Corp.
By______________________
President
Signature Page to Rescission and Transfer Agreement dated as of June 30,
1998 Relating to AccuImage Diagnostics Corp. and AccuImage, Inc.
[Excluded]
SCHEDULE A
ACCUIMAGE, INC. ALLOCATION OF SHARES SURRENDERED
RESCINDED TRANSFERRED
SHAREHOLDER SHARES SHARES
--------- -----------
Xxxxxxxxx and Xxxxxxx Xxxxxxxx, 685,732 179,501
JTROS
Xxxxxxx Xxxx, Ph.D. 681,832 200,362
Xxxxxxx Xxxx
Xxx X.X. Xx 156,286 47,615
Xxxxxx Xxxx 6,953
Xxxxx Xxxx 3,477
Joconat & Company 3,477
Xxx Xxxxxxxx 6,953
Xxxxxx Xxxxxxxx-Xxxxxx 6,953
Xxxxxxx Xxxxxxxxx 6,953
Xxxxxx Xxxxx 6,953
Xxxxxxxx Xxxxxxx 6,953
TOTAL 1,523,850 476,150
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SCHEDULE B
C GROUP ALLOCATION OF SHARES TRANSFERRED
SHAREHOLDER NUMBER OF SHARES
----------- ----------------
Black Pointe Venture Capital held by X.X. 12,000
Iles In Trust
Medmin Capital Ltd. 351,000
Pantages & Associates held by X.X.
Xxxx In Trust 300,000
Pantages & Associates 46,000
Xxxxxx Xxx Xxxxx 223,500
Xxxxxxx Xxxx 243,500
Xxxxx X. Xxxxxxxx 190,000
Xxxxxxxx X. Xxxxxxxx 141,000
Xxx X. Xxxxxxx 20,000
Xxx Xxxxxx 100,000
Xxxxxxx Xxxxxxxxx 43,000
Xxxxx Xxx 200,000
Xxxxxxx Xxxxxxxxx 30,000
Xxxxxxx Xxxx 25,000
Xxxx X. Xxxxx 15,000
Xxxx X. Xxxxx 60,000
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TOTAL 2,000,000
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