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Exhibit 10.1
Form of Stock Purchase Agreement between the Registrant and
purchasers of shares of common stock in the Registrant.
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DICOM IMAGING SYSTEMS, INC.
STOCK PURCHASE AGREEMENT
This Stock Purchase Agreement (the "Agreement") is entered into as of March ___,
1999, by and between Dicom Imaging Systems, Inc. , a Nevada Corporation (the
"Company"), and ____________________________________, ("Purchaser").
In consideration of the mutual covenants and representations herein set
forth, the Company and the Purchaser agree as follows:
1. SALE OF STOCK. The Company hereby agrees to sell to Purchaser and
Purchaser hereby agrees to purchase an aggregate of __________shares of the
Company's Common Stock (the "Shares"), at a purchase price of $1.00 per share
(the "Purchase Price"), or an Aggregate Purchase Price of $____________.
2. PAYMENT OF PURCHASE PRICE. The Purchase Price for the Shares shall
be paid to the Company by any combination of the following: (i) in immediately
available funds upon the execution of this Agreement or (ii) the cancellation of
indebtedness owed by the Company to the Purchaser, such cancellation being
hereby acknowledged by receipt of the Shares and as identified in Exhibit A
hereto.
3. DEFINITIONS.
(a) "SHARES" refers to the purchased Shares and all shares
received in respect thereof as a consequence of stock dividends, stock splits,
reverse stock splits, recapitalizations, mergers, reorganizations or the like,
and all new, substituted or additional securities or other properties to which
Purchaser is or may be entitled by reason of Purchaser's ownership of the
Shares.
4. LEGENDS. The share certificate evidencing the Shares issued
hereunder shall be endorsed with the following restrictive legends (in addition
to any legend required under applicable state securities laws):
THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE BEEN ACQUIRED FOR
INVESTMENT AND NOT WITH A VIEW TO, OR IN CONNECTION WITH, THE SALE OR
DISTRIBUTION THEREOF, AND HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933. SUCH SHARES MAY NOT BE SOLD OR TRANSFERRED IN THE ABSENCE
OF SUCH REGISTRATION OR UNLESS THE COMPANY RECEIVES AN OPINION OF
COUNSEL REASONABLY ACCEPTABLE TO IT SAYING THAT SUCH SALE OR TRANSFER
IS EXEMPT FROM THE REGISTRATION AND PROSPECTUS DELIVERY REQUIREMENTS OF
SAID ACT.
THE SHARES REPRESENTED HEREBY ARE SUBJECT TO CERTAIN RESTRICTIONS UPON
TRANSFER AND RIGHTS OF REPURCHASE AS SET FORTH IN AN AGREEMENT BETWEEN
THE COMPANY AND THE SHAREHOLDER, A COPY OF WHICH IS AVAILABLE UPON THE
REQUEST OF THE REGISTERED HOLDER HEREOF TO THE SECRETARY OF THE
COMPANY.
5. ADJUSTMENTS FOR STOCK SPLITS, ETC. All references to the number of
Shares and the purchase price of the Shares in this Agreement shall be
appropriately adjusted to reflect any stock dividend, stock split,
recapitalization, merger, reorganization or other change in the Shares which may
be made by the Company after the date of this Agreement.
6. CO-SALE AGREEMENT. Purchaser and each transferee of the Shares
issued hereunder agrees by acceptance hereof or thereof not to sell, make a
short sale of, loan, grant any options for the purchase of, or otherwise dispose
of any shares of Common Stock of the Company held by Purchaser except in
accordance with that certain Co-Sale Agreement of even date hereof and attached
as Exhibit B to this Agreement. Purchaser further agrees to execute any
agreement reflecting the above provision as may be requested by the Company.
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7. PURCHASER'S REPRESENTATIONS. In connection with the Purchaser's
purchase of the Shares, the Purchaser hereby represents and warrants to the
Company as follows:
(a) INVESTMENT INTENT; CAPACITY TO PROTECT INTERESTS. The
Purchaser is purchasing the Shares solely for his own account for investment and
not with a view to or for sale in connection with any distribution of the Shares
or any portion thereof and not with any present intention of selling, offering
to sell or otherwise disposing of or distributing the Shares or any portion
thereof in any transaction other than a transaction exempt from registration
under the Securities Act of 1933, as amended (the "Act"). The Purchaser also
represents that the entire legal and beneficial interest of the Shares is being
purchased, and will be held, for the Purchaser's account only, and neither in
whole or in part for any other person. Purchaser has a pre-existing business
relationship with the Company and has the capacity to evaluate the merits and
risks of an investment in the Company and to protect Purchaser's own interests
in connection with this transaction.
(b) ECONOMIC RISK. The Purchaser realizes that the purchase of
the Shares will be a highly speculative investment and involves a high degree of
risk, and the Purchaser is able, without impairing financial condition, to hold
the Shares for an indefinite period of time and to suffer a complete loss on the
Purchaser's investment.
(c) RESTRICTED SECURITIES. The Purchaser understands and
acknowledges that:
(i) the sale of the Shares has not been registered
under the Act, and the Shares must be held indefinitely unless subsequently
registered under the Act or an exemption from such registration is available;
(ii) the share certificate representing the Shares
will be stamped with the legend specified in Section 4 hereof; and
(iii) the Company will make a notation in its records
of the aforementioned restrictions on transfer and legend.
8. FORCED REPURCHASE. The Company hereby covenants to repurchase the
Shares from Purchaser under the terms and conditions of this Section 8 as
follows:
(a) NOTIFICATION OF REPURCHASE. Purchaser may tender to the
Company a written notice of exercise ("Repurchase Notice") that the Company is
obligated to repurchase the Shares pursuant to this Section 8 at any time after
120 days from the date of this Agreement. Upon receipt of the Repurchase Notice,
the Company agrees to immediately issue a Secured Promissory Note, in the form
attached hereto as Exhibit C to Purchaser for the Repurchase Amount, as defined
below. Upon the full payment of the sums due under Secured Promissory Note,
Purchaser shall tender the Shares to the Company or its assignee. The Repurchase
Amount shall be equal to the Aggregate Purchase Price of the Shares plus
interest at 10% per annum, from the date of this Agreement.
(b) RIGHT OF PURCHASER. The Purchaser has the right, but not
the obligation, to tender the Repurchase Notice. In the event that the Purchaser
tenders one or more Repurchase Notices for less than the full number of the
Shares, the Repurchase Amount thereunder shall be adjusted on a pro-rata basis.
The right to issue a Repurchase Notice pursuant to this Section 8 shall expire
upon the earlier of the Purchaser's sale of all of the Shares or three years
from the date hereof.
9. PROHIBITIONS ON ADDITIONAL EQUITY OR DEBT ISSUANCES. Except in
accordance with this Section 9, the Company covenants not to issue additional
shares of capital stock or undertake any indebtedness other than in the ordinary
course of business and in an aggregate total of no more than $50,000 (the
"Prohibition"). The Prohibition shall continue as long as Purchaser holds any of
the Shares or until Purchaser waives the Prohibition in writing.
(a) PROCEDURE FOR ISSUING ADDITIONAL EQUITY OR DEBT. The
Company may issue additional equity or undertake indebtedness if and only if it
has obtained the written consent of the Purchaser or his designee ("Authorized
Designee") for each and every issuance of additional equity and each and every
undertaking of indebtedness. The Purchaser hereby appoints Xxxxxxx Xxxxxx as his
Authorized Designee. The Purchaser may not change the identity of his Authorized
Designee except with the consent of the majority of holders of the Company's
Common Stock.
(b) VIOLATIONS OF THE PROHIBITION. In the event that the
Company should violate the Prohibition at any time while Purchaser still holds
any of the Shares, the Purchaser shall be entitled to exercise the following
remedy without notice or demand and in addition to any other remedies provided
to the purchaser in law or equity: (i) Purchaser shall have the right to
immediately exercise its right to tender a Repurchase Notice to the Company
pursuant to Section 8 above, irrespective of whether 120 days has passed as
required in Section 8.
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(c) BEST EFFORTS. The Company covenants and warrants to make
its best efforts to insure that the Prohibition is not violated, including the
adoption of corporate signature protocols, changes to its by-laws or other
charter documents, and disclosure of this Section 9 to all potential equity
investors or credit grantors and any other written instrument or act reasonably
requested by Purchaser in furtherance of this Section 9.
10. REGISTRATION RIGHTS. The Company covenants and warrants to make its
best efforts to cause the Shares to be registered under the Securities Act of
1933, as amended ("Securities Act") or to obtain an opinion of counsel to the
Company that the Shares are exempt from the requirements for registration under
the Securities Act. In the event that Company does not register the Shares under
the Securities Act in reliance on an exemption therefrom, the Company covenants
and warrants to make its best efforts to file a registration statement under the
Securities Exchange Act of 1934, as amended ("Exchange Act") on Form 10 or Form
10-SB. The Company covenants and warrants that it will cause to be filed a
registration statement under the Securities Act or the Exchange Act, pursuant to
this Section 10, within 90 days of the date hereof. The rights granted to
Purchaser under this Section 10 are in addition to any other contractual rights
Purchaser may have to cause the Shares to be registered.
11. GENERAL PROVISIONS.
(a) This Agreement shall be governed by and construed and
enforced in accordance with the laws of the State of Nevada as they apply to
contracts entered into and wholly to be performed within such state.
(b) This Agreement represents the entire agreement between the
parties with respect to the purchase of the Shares by the Purchaser.
(c) Any notice, demand or request required or permitted to be
given by either the Company or Purchaser pursuant to the terms of this Agreement
shall be in writing and shall be deemed given when delivered, if delivered
personally; three business days after the business day of deposit in the U.S.
mail, by registered or certified mail with postage prepaid; one business day
after the business day of facsimile transmission, if a confirmation copy is sent
by first class mail with postage prepaid; or, one business day after the
business day of deposit with Federal Express or similar overnight carrier,
freight prepaid; in any such case addressed to any party at such party's address
as set forth at the end of this Agreement or such other address as the party may
designate by notifying the other in writing.
(d) The rights and benefits of the Company under this
Agreement shall be transferable to any one or more persons or entities, and all
covenants and agreements hereunder shall inure to the benefit of, and be
enforceable by the Company's successors and assigns. The rights and obligations
of Purchaser under this Agreement may only be assigned with the prior written
consent of the Company, which shall not be unreasonably withheld.
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(e) Either party's failure to enforce any provision or
provisions of this Agreement shall not in any way be construed as a waiver of
any such provision or provisions, nor prevent that party from thereafter
enforcing each and every other provision of this Agreement. The rights granted
both parties herein are cumulative and shall not constitute a waiver of either
party's right to assert all other legal remedies available to it under the
circumstances.
(f) Purchaser agrees upon request to execute any further
documents or instruments necessary or desirable to carry out the purposes or
intent of this Agreement.
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By Purchaser's signature below, Purchaser represents that Purchaser
hereby accepts this Stock Purchase Agreement subject to all of the terms and
provisions thereof. Purchaser has reviewed this Stock Purchase Agreement in its
entirety, has had an opportunity to obtain the advice of counsel prior to
executing this Stock Purchase Agreement and fully understands all provisions of
this Stock Purchase Agreement.
COMPANY:
DICOM IMAGING SYSTEMS, INC.
By:
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Title:
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PURCHASER:
By:
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Title:
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