UNIT PURCHASE AGREEMENT
THIS UNIT PURCHASE AGREEMENT is made as of the date set forth on the
signature page attached hereto (the "Signature Page") between ACCUIMAGE
DIAGNOSTICS CORP., a Nevada corporation (the "Company"), and the person whose
name and address appear on the Signature Page to this Agreement (the
"Purchaser"):
RECITALS:
WHEREAS, the Company has authorized an offering of 1,283,334 Units at $0.60
per Unit (the "Offering"), each Unit consisting of one share of the Company's
Common Stock (the "Common Stock") and a warrant (the "Warrants") to purchase one
share of Common Stock at an exercise price of $1.50 per share at any time during
a five year term commencing on the date of issuance (the Units, the Common Stock
and the Warrants comprising the Units, and the shares of Common Stock issuable
upon exercise of the Warrants are hereinafter collectively referred to as the
"Securities"); and
WHEREAS, the Purchaser desires to purchase and the Company desires to sell
the Units on the terms and conditions set forth herein;
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. Purchase and Sale of the Units. Subject to the terms and conditions of
this Agreement, Purchaser agrees to purchase at the Closing, and the Company
agrees to sell and issue to the Purchaser at the Closing, against cash payment,
that number of Units set forth below the Purchaser's name on the Signature Page
to this Agreement at a purchase price of $0.60 per Unit.
2. Closing Date; Delivery. The purchase and sale of the Units shall be held
at the offices of the Company, 000 Xxxxxx Xxxxx Xxxx., Xxxxx Xxx Xxxxxxxxx,
Xxxxxxxxxx 00000, and may occur at successive closings, the last of which shall
be March 31, 2000, or at such other times and places as the parties may agree
upon (collectively, the "Closing"). At the Closing, subject to the terms of this
Agreement, the Company will deliver to the Purchaser a certificate representing
the number of Units to be purchased by the Purchaser from the Company, against
payment at the Closing of the cash purchase price.
3. Representations and Warranties of the Company. The Company represents
and warrants to, and agrees with, the Purchaser that:
(a) Organization and Standing; Articles and Bylaws. The Company is a
corporation duly organized and existing under, and by virtue of, 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 it business as presently conducted and as proposed to be conducted. The
Company is qualified or licensed as a foreign corporation in all jurisdictions
where the nature of its activities or of its properties owned or leased makes
such qualification or licensing necessary.
(b) Corporate Power. The Company has now all requisite legal and
corporate power to enter into this Agreement, to sell the Securities hereunder,
and to carry out and perform its obligations under the terms of this Agreement.
(c) Capitalization. The authorized capital stock of the Company
consists of 10,000,000 Preferred Shares, $0.001 par value, none of which are
outstanding, and 50,000,000 Common Shares, $0.001 par value, of which 9,748,200
are issued and outstanding. The issued and outstanding shares of Common Stock
have been duly authorized and validly issued, are fully paid and nonassessable.
There are currently 930,000 outstanding warrants to purchase Common Stock. There
are no other outstanding rights, options, warrants, conversion rights, or
agreements for the purchase or acquisition from the Company of any shares of its
capital stock other than 2,100,000 shares of Common Stock reserved under the
Company's option plan.
(d) Authorization.
(i) All corporate action on the part of the Company, its
officers, directors, and stockholders necessary for the sale and issuance of the
Securities pursuant hereto and the performance of the Company's obligations
hereunder, has been taken or will be taken prior to the Closing. This Agreement
is a legal, valid and binding obligation of the Company, enforceable against the
Company in accordance with its terms, except as limited by bankruptcy,
insolvency, reorganization, moratorium or similar laws of general application
affecting enforcement of creditors' rights, and except as limited by application
of legal principles affecting the availability of equitable remedies.
(ii) The Securities, when issued in compliance with the
provisions of this Agreement, will be validly issued, fully paid and
nonassessable, and will be free of any liens or encumbrances; provided, however,
that such Securities may be subject to restrictions on transfer under state
and/or federal securities laws as set forth herein and as may be required by
future changes in such laws.
(iii) No shareholder of the Company has any right of first
refusal or any preemptive rights in connection with the issuance of the
Securities by the Company.
(e) Financial Statements. The Company's (a) audited balance sheet for
the fiscal years ended September 30, 1999 and 1998 and statements of operations,
cash flow, and stockholders' equity for the fiscal years ended September 30,
1997, 1998, and 1999 together with the report by Xxxx & Company, Certified
Public Accountants, thereon and the notes thereto and (b) unaudited balance
sheet as of December 31, 1999 and statements of operations, cash flow, and
stockholders' equity for the three months ended December 31, 1999 and 1998, and
notes thereto, which have been supplied to the Purchaser are true and correct,
have been prepared in accordance with generally accepted accounting principles
consistently applied (except as disclosed therein and except that interim
financial Statements do not contain the footnotes required by generally accepted
accounting principles), and fairly present the financial condition of the
Company and the results of the operations of the Company as of the respective
dates thereof.
(f) Material Contracts and Commitments. All the material contracts,
commitments, agreements, and instruments to which the Company is a party are
legal, valid, binding, and in full force and effect in all material respects and
enforceable by the Company in accordance with their terms except as limited by
bankruptcy, insolvency, reorganization, moratorium, or similar laws of general
application affecting enforcement of creditors' rights, and except as limited by
application of legal principles affecting the availability of equitable
remedies. The Company is not in material default under any of such contracts.
(g) Compliance with Other Instruments, None Burdensome, etc. The
Company is not in violation of any term of its Articles of Incorporation or
Bylaws, or in any material respect of any mortgage, indenture, contract,
agreement, instrument, or, to the best knowledge of the Company, any judgment,
decree, order, statute, rule, or regulation applicable to it. The execution,
delivery, and performance by the Company of this Agreement, and the issuance and
sale of the Securities pursuant hereto, will not result in any such violation or
be in conflict with or constitute a default under any such term, or cause the
acceleration of maturity of any loan or material obligation to which the Company
is a party or by which it is bound or with respect to which it is an obligor or
guarantor, or result in the creation or imposition of any material lien, claim,
charge, restriction, equity or encumbrance of any kind whatsoever upon, or, to
the best knowledge of the Company after due inquiry, give to any other person
any interest or right (including any right of termination or cancellation) in or
with respect to any of the material properties, assets, business or agreements
of the Company. To the best knowledge of the Company after due inquiry, no such
term or condition materially adversely affects or in the future (so far as can
reasonably be foreseen by the Company at the date of this Agreement) may
materially adversely affect the business, property, prospects, condition,
affairs, or operations of the Company.
(h) Litigation, etc. There are no actions, proceedings or
investigations pending (or, to the best of the Company's knowledge, any basis
therefor or threat thereof), which, either in any case or in the aggregate,
might result in any adverse change in the business, prospects, conditions,
affairs, or operations of the Company or in any of its properties or assets, or
in any impairment of the right or ability of the Company to carry on its
business as proposed to be conducted, or in any material liability on the part
of the Company, or which question the validity of this Agreement or any action
taken or to be taken in connection herewith.
(i) Governmental Consent, etc. No consent, approval, or authorization
of, or designation, declaration, or filing with, any governmental unit is
required on the part of the Company in connection with the valid execution and
delivery of this Agreement, or the offer, sale or issuance of the Securities, or
the consummation of any other transaction contemplated hereby (except exemption
notice filings under the Blue Sky securities laws of those states in which
offers or sales may be made in connection with this Offering, which filings have
been or will be timely made so as to comply with such laws).
(j) Offering. The offer, sale and issuance of the Securities in
conformity with the terms of this Agreement will not violate the Securities Act
of 1933 or any applicable state Blue Sky law.
(k) Insurance. The Company has in full force and effect fire, casualty
and other insurance policies, sufficient in amount (subject to reasonable
deductibles) to allow it to replace any of its properties that might be damaged
or destroyed.
(l) Intellectual Property, etc. To the best of its knowledge, the
Company has sufficient title and ownership of all franchises, permits, licenses
trademarks, trademark rights, copyrights, service marks, trade names, trade
secrets, know-how information, proprietary rights and processes, and other
similar authority necessary for the conduct of its business as now conducted and
as proposed to be conduced by it (collectively, the "Intellectual Property").
The Company is not in violation of, nor will the transaction contemplated by
this Agreement cause a violation of the terms of any franchises, permits or
licenses to which it is a party. There is neither pending, nor to the Company's
knowledge, threatened, any claim or litigation against the Company contesting
the validity or right to use any of the Intellectual Property. To the Company's
knowledge, no person, corporation or other entity is materially infringing the
Intellectual Property. To the Company's knowledge, it is not currently using the
confidential information or trade secrets of any person, or a grant of a license
or other right to use such information or trade secrets, without the consent of
such other person or entity.
(m) Title to and Condition of Properties. The Company has good and
marketable title to all its tangible and intangible property and assets,
including those reflected in the Financial Statements (except such property or
assets as have since December 31, 1999 been sold or otherwise disposed of in the
ordinary course of business), and such property and assets are subject to no
mortgage or security interests, conditional sales contract, charge, lien or
encumbrance (except (i) as disclosed in the Financial Statements and (ii) for
the lien of current taxes not yet due and payable and such imperfections of
title, easements and encumbrances, if any, as are not substantial in character,
amount or extent and do not materially detract from the value of, or interfere
with the present use of the properties subject thereto or affected thereby, or
otherwise materially impair the business operations of the Company), and
subsequent to December 31, 1999 the Company has not sold or disposed of any of
its property and assets or obligated itself to do so except in the ordinary
course of business. Except for such minor defects as are not substantial in
character and which do not have a materially adverse effect upon the validity
thereof, all material real and personal property leases to which the Company is
a party are in good standing, valid and effective, and there is not under any
such lease any existing material default or event which with notice or lapse of
time or both would constitute a material default and in respect of which the
Company has not taken reasonable steps to prevent such a default from occurring.
(n) Taxes. Prior to the date of this Agreement, the Company has filed
all tax returns that are required to have been filed with appropriate federal,
state, county and local governmental agencies or instrumentalities and paid the
taxes thereon.
(o) The Units, the Common Stock and the Warrants:
(i) are free and clear of any security interests, liens, claims,
or other encumbrances;
(ii) have been duly and validly authorized and issued and are,
and on the Closing Date will be, fully paid and non-assessable;
(iii) will not have been, individually and collectively, issued
or sold in violation of any preemptive or other similar rights of the holders of
any securities of the Company;
(iv) will not subject the holders thereof to personal liability
by reason of being such holders.
4. Representations and Warranties of the Purchaser. The Purchaser
represents and warrants to, and agrees with, the Company as follows:
(a) No consent, approval, authorization, or order of any court,
governmental agency or body, or arbitrator having jurisdiction over the
Purchaser is required for execution of this Agreement, including, without
limitation, the purchase of the Securities, or the performance of the
Purchaser's obligations hereunder.
(b) The Purchaser understands that no federal or state agency has
passed on or made any recommendation or endorsement of the Securities.
(c) The Company has given the Purchaser the opportunity to have
answered all of the Purchaser's questions concerning the Company and its
business and has made available to the Purchaser all information requested by
the Purchaser which is reasonably necessary to verify the accuracy of other
information furnished by the Company. The Purchaser has received and evaluated
all information about the Company and its business which the Purchaser deems
necessary to formulate an investment decision and does not desire any further
information.
(d) The Purchaser understands that the Securities are being offered
and sold to it in reliance on specific exemptions or non-application from the
registration requirements of federal and state securities laws and that the
Company is relying upon the truth and accuracy of the representations,
warranties, agreements, acknowledgments, and understandings of the Purchaser set
forth herein in order to determine the applicability of such exemptions or
non-applications and the suitability of the Purchaser to acquire the Securities.
(e) The Purchaser is aware that the Securities 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 the Purchaser for an indeterminate period and the Purchaser 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.
(f) Each instrument representing the Securities may be endorsed with
the following legends:
(i) 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.
(ii) Any other legend required by California or other state
securities laws.
The Company need not register a transfer of legended Securities and may
instruct its transfer agent not to register the transfer of the Securities,
unless one of the conditions specified in the foregoing legends is satisfied.
(g) Any legend endorsed on an instrument pursuant to Section 4(f)
hereof and the stop transfer instructions with respect to such Securities shall
be removed, and the Company shall issue an instrument without such legend to the
holder of such Securities if such Securities 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 provides the Company with an opinion of
counsel for such holder of the Securities, reasonably satisfactory to the
Company, to the effect that a public sale, transfer or assignment of such
Securities may be made without registration.
(h) The Purchaser is either (A) acquiring the Units for the
Purchaser's own account; or (B) for the account of another for which the
Purchaser acts as a fiduciary, in which case the Purchaser will so advise the
Company. If acting as a fiduciary, the Purchaser makes the representations,
warranties, and covenants as set forth herein on its own behalf and as agent for
and on behalf of such other party. The Purchaser is acquiring the Units for
investment and without any present intention to engage in a distribution
thereof.
(i) The Purchaser has the knowledge and experience in financial and
business matters to evaluate the merits and risks of the proposed investment.
(j) The Purchaser is an "Accredited Investor" as that term is defined
under Rule 501 adopted pursuant to the Securities Act. "Accredited Investors"
are defined in Rule 501 to include among others: (A) Various specified
institutional investors (such as banks, savings and loan associations, licensed
brokers or dealers, insurance companies, investment companies, small business
investment companies, employee benefit plans having assets in excess of
$5,000,000, and self-directed plans having investment decisions made solely by
persons that are Accredited Investors); (B) Any entity with total assets in
excess of $5,000,000, not formed for the specific purpose of acquiring the
securities offered; (C) Any person who had individual income in excess of
$200,000 in each of the two most recent years or joint income with that person's
spouse in excess of $300,000 in each of those years and has a reasonable
expectation of reaching the same income level this year; (D) Any person whose
individual net worth (or joint net worth with the person's spouse) at the time
of purchase exceeds $1,000,000; (E) Directors and executive officers of the
Company; (F) Trusts with total assets in excess of $5,000,000 not formed for the
specific purpose of acquiring the securities offered, whose purchase is directed
by a sophisticated person prescribed in Rule 506(b)(2)(ii); and (G) Any entity
in which all the equity owners are deemed accredited.
5. Conditions Precedent to the Purchaser's Obligations. The obligations of
the Purchaser hereunder are subject to the performance by the Company of its
obligations hereunder and to the satisfaction of the following additional
conditions precedent on or before the Closing Date:
(a) The representations and warranties made by the Company in this
Agreement shall, unless waived by the Purchaser, be true and correct as of the
date hereof and at the Closing Date, with the same force and effect as if they
had been made on and as of the Closing Date.
(b) After the date hereof and until the Closing Date, there shall not
have occurred:
(i) any change, or any development involving a prospective
change, in either (A) the condition, financial or otherwise, or in the earnings,
business or operations, or in or affecting the properties of the Company or (B)
the financial or market conditions or circumstances in the United States, in
either case which, in the Purchaser's judgment, is material and adverse and
makes it impractical or inadvisable to proceed with the offering, sale, or
delivery of the Units;
(ii) an imposition of a new legal or regulatory restriction not
in effect on the date hereof, or any change in the interpretation of existing
legal or regulatory restrictions, that materially and adversely affects the
offering, sale, or delivery of the Units.
6. Conditions Precedent to the Company's Obligations. The obligations of
the Company under this Agreement are subject to the performance by the Purchaser
of its obligations hereunder and to the satisfaction of the condition that the
representations and warranties made by the Purchaser in this Agreement shall,
unless waived by the Company, be true and correct at the Closing Date, with the
same force and effect as if they had been made on, and as of, the Closing Date.
7. Survival of the Representations, Warranties, etc. The respective
agreements, representations, warranties, indemnities, and other statements made
by or on behalf of the Company and the Purchaser pursuant to this Agreement
shall remain in full force and effect, regardless of any investigation made by
or on behalf of the other party to this Agreement or any officer, director, or
employee of, or person controlling or under common control with, such party, and
will survive delivery of any payment of the Units.
8. Miscellaneous.
(a) 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) All notices under this Agreement shall be given in writing, by
registered or certified mail, postage prepaid, addressed to the Company at 000
Xxxxxx Xxxxx Xxxx., Xxxxx Xxx Xxxxxxxxx, Xxxxxxxxxx 00000 and to the Purchaser
at the addresses set forth opposite his or her name below or at such other
address as may be designated in writing by the parties to one another. Any
notice addressed or mailed as specified herein shall be deemed to have been
given three days after such notice has been deposited in the United States
mails.
(c) 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.
(d) This Agreement shall be governed by, and construed in accordance
with, the laws of the State of California.
(e) The headings of the sections of this document 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 March __, 2000.
COMPANY:
ACCUIMAGE DIAGNOSTICS CORP.
By:
---------------------------------------
Xxxxxx Xxxxxx, Chief Executive Officer
PURCHASER:
-------------------------------------------
-------------------------------------------
Name of Purchaser [type or print]
-------------------------------------------
Xxxxxx Xxxxxxx
-------------------------------------------
Xxxx, Xxxxx and ZIP Code
Amount of Investment: $
-------------------
Units Purchased:
--------------------------
