SECURITIES PURCHASE AGREEMENT
THIS
SECURITIES PURCHASE AGREEMENT (this "Agreement") is made and entered into as
of
January 26, 2007, by and between POSITRON
CORPORATION, a
publicly owned Texas corporation (the “POSITRON”), and IMAGIN
DIAGNOSTIC CENTRES, INC.,
a
Canadian corporation (the “IMAGIN”).
RECITALS
WHEREAS,
IMAGIN
is the holder of eleven million five hundred twenty three thousand (11,523,000)
shares (the “Shares”) of common stock which represent 50.1% of the issued and
outstanding shares of common stock of Imaging PET Technologies, Inc., a Canadian
corporation (“IPT”); and
WHEREAS,
on May
8, 2006, POSITRON agreed to sell 1,200,000 shares of its Series B Convertible
Preferred Stock to Quantum Molecular Pharmaceuticals, Inc., a Canadian
corporation (“QUANTUM”) in consideration of a note in the amount of Two Million
Four Hundred Thousand Dollars ($2,400,000.00) (the “Quantum Note”) in connection
with the transfer by QUANTUM and IMAGIN of all their right, title and interest
to Quantum Molecular Technologies, Inc.; and
WHEREAS,
IMAGIN
acquired all of QUANTUM’s right, title and interest to IMAGIN’s POSITRON
SECURITIES in consideration of, among other things, the assumption of the
Quantum Note; and
WHEREAS,
IMAGIN
desires to Sell and POSITRON
desires
to purchase the Shares, pursuant to the terms and conditions set forth
herein;
NOW,
THEREFORE,
in
consideration of the foregoing recitals and the mutual promises,
representations, warranties and covenants hereinafter set forth and for other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
AGREEMENT
1. Purchase
and Sale.
Pursuant to the terms and conditions set forth in this Agreement, on the Closing
Date (as hereinafter defined), IMAGIN will sell, assign, convey and deliver
to
POSITRON, free and clear of all liens, pledges, security, interests, options
encumbrances, charges, agreements or claims of any kind whatsoever
(collectively, “Liens”), and POSITRON will purchase and accept all of IMAGINS’
right, title and interest to the Shares.
2. Purchase
Price. The total consideration to be paid by POSITRON to IMAGIN for the
Shares shall be Two Million Four Hundred Thousand Dollars ($2,400,000) (the
“Purchase Price”) in the form of the cancellation of the Quantum Note in favor
of IMAGIN.
3. Closing,
Delivery and Payment.
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3.1 Closing.
Subject
to the terms and conditions herein, the closing of the transactions contemplated
hereby (the "Closing"), shall take place as set forth within the Reorganization
Agreement (such date is hereinafter referred
to
as the “Closing Date”).
3.2 Delivery.
At the
Closing on the Closing Date, POSITRON shall deliver to IMAGIN, among other
items, the Note and a Collateral Pledge Agreement securing POSITRON’s
obligations under the Note, and IMAGIN shall deliver a Certificate representing
the Shares. (A
form
of the Collateral Pledge Agreement is attached hereto as Exhibit
“B”).
4. Representations
and Warranties of POSITRON.
POSITRON
hereby represents and warrants to IMAGIN as follows (which representations
and
warranties are supplemented by POSITRON's filings under the Securities Exchange
Act of 1934, as amended (collectively, the "Exchange Act Filings").
4.1 Organization,
Good Standing and Qualification.
POSITRON
is a corporation duly organized, validly existing and in good standing under
the
laws of the State of Texas. POSITRON has the corporate power and authority
to
own and operate its properties and assets, to execute and deliver (i) this
Agreement, (ii) the Note, and (iii) all other agreements related to this
Agreement and referred to herein (the preceding clauses (ii) and (iii),
collectively, the "Related Agreements"), and to carry out the provisions of
this
Agreement and the Related Agreements and to carry on its business as presently
conducted. POSITRON is duly qualified and is authorized to do business and
is in
good standing as a foreign corporation, in all jurisdictions in which the nature
of its activities and of its properties (both owned and leased) makes such
qualification necessary.
4.2 Authorization;
Binding Obligations.
All
corporate action on the part of POSITRON (including the respective officers
and
directors) necessary for the authorization of this Agreement and the Related
Agreements, the performance of all obligations of POSITRON hereunder and under
the other Related Agreements at the Closing, when executed and delivered and
to
the extent it is a party thereto, will be valid and binding obligations of
POSITRON, enforceable in accordance with their terms, except:
(a) as
limited by applicable bankruptcy, insolvency, reorganization, moratorium or
other laws of general application affecting enforcement of creditors' rights;
and
(b) general
principles of equity that restrict the availability of equitable or legal
remedies.
5. Representations
and Warranties of IMAGIN.
IMAGIN
hereby represents and warrants to POSITRON as follows (such representations
and
warranties do not lessen or obviate the representations and warranties of
POSITRON set forth in this Agreement):
5.1 Title,
Encumbrances.
IMAGIN
is the owner of the Shares free and clear of all encumbrances and, on the
Closing Date will transfer the QMT Common shares free and clear of all liens,
pledges, encumbrances, security in trust or other restrictions.
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5.2 Requisite
Power and Authority.
IMAGIN
has all necessary power and authority under all applicable provisions of law
to
execute and deliver this Agreement and the Related Agreements and to carry
out
their provisions. All action on IMAGIN's part required for the lawful execution
and delivery of this Agreement and the Related Agreements has been or will
be
effectively taken prior to the Closing. Upon their execution and delivery,
this
Agreement and the Related Agreements will be valid and binding obligations
of
IMAGIN, enforceable in accordance with their terms, except:
(a) as
limited by applicable bankruptcy, insolvency, reorganization, moratorium or
other laws of general application affecting enforcement of creditors' rights;
and
(b) as
limited by general principles of equity that restrict the availability of
equitable and legal remedies.
6. Covenants
of IMAGIN.
IMAGIN
covenants and agrees with POSITRON as follows:
6.1 Confidentiality.
IMAGIN
agrees that it will not disclose, and will not include in any public
announcement, the name of POSITRON, unless expressly agreed to by POSITRON
or
unless and until such disclosure is required by law or applicable regulation,
and then only to the extent of such requirement.
6.2 Non-Public
Information.
IMAGIN
agrees not to effect any sales in the shares of POSITRON's Common Stock while
in
possession of material, non-public information regarding POSITRON if such sales
would violate applicable securities law.
7. Covenants
of POSITRON and IMAGIN Regarding Indemnification.
7.1 POSITRON
Indemnification.
POSITRON agrees to indemnify, hold harmless, reimburse and defend IMAGIN, each
of IMAGIN's officers, directors, agents, affiliates, control persons, and
principal shareholders, against any claim, cost, expense, liability, obligation,
loss or damage (including reasonable legal fees) of any nature, incurred by
or
imposed upon IMAGIN which results, arises out of or is based upon: (i) any
misrepresentation by POSITRON or breach of any warranty by POSITRON in this
Agreement, any other Related Agreement or in any exhibits or schedules attached
hereto or thereto; or (ii) any breach or default in performance by POSITRON
of
any covenant or undertaking to be performed by POSITRON hereunder, under any
other Related Agreement or any other agreement entered into by POSITRON and
IMAGIN relating hereto or thereto.
7.2 IMAGIN's
Indemnification.
IMAGIN
agrees to indemnify, hold harmless, reimburse and defend POSITRON and each
of
POSITRON's officers, directors, agents, affiliates, control persons and
principal shareholders, at all times against any claim, cost, expense,
liability, obligation, loss or damage (including reasonable legal fees) of
any
nature, incurred by or imposed upon POSITRON which results, arises out of or
is
based upon: (i) any misrepresentation by IMAGIN or breach of any warranty by
IMAGIN in this Agreement or in any exhibits or schedules attached hereto or
any
Related Agreement; or (ii) any breach or default in performance by IMAGIN of
any
covenant or undertaking to be performed by IMAGIN hereunder, or any other
agreement entered into by POSITRON and IMAGIN relating hereto.
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8. Miscellaneous.
8.1 Governing
Law/Arbitration.
THIS
AGREEMENT AND ALL MATTERS CONNECTED WITH THE PERFORMANCE THEREOF SHALL BE
CONSTRUED, INTERPRETED, AND GOVERNED IN ALL RESPECTS BY THE LAWS OF THE STATE
OF
TEXAS. POSITRON AND IMAGIN AGREE THAT ANY DISPUTE OR CONTROVERSY ARISING OUT
OF
OR IN CONNECTION WITH THIS AGREEMENT OR ANY ALLEGED BREACH HEREOF SHALL BE
SETTLED EXCLUSIVELY BY ARBITRATION IN HOUSTON, TEXAS PURSUANT TO THE RULES
OF
THE AMERICAN ARBITRATION ASSOCIATION. IF THE TWO PARTIES CANNOT JOINTLY SELECT
A
SINGLE ARBITRATOR TO DETERMINE THE MATTER, ONE ARBITRATOR SHALL BE CHOSEN BY
EACH PARTY (OR, IF A PARTY FAILS TO MAKE A CHOICE, BY THE AMERICAN ARBITRATION
ASSOCIATION ON BEHALF OF SUCH PARTY) AND THE TWO ARBITRATORS SO CHOSEN WILL
SELECT A THIRD. THE DECISIONS OF THE SINGLE ARBITRATOR JOINTLY SELECTED BY
THE
PARTIES, OR, IF THREE ARBITRATORS ARE SELECTED, THE DECISION OF ANY TWO OF
THEM,
WILL BE FINAL AND BINDING UPON THE PARTIES AND THE JUDGMENT OF A COURT OF
COMPETENT JURISDICTION MAY BE ENTERED THEREON. FEES OF THE ARBITRATORS AND
COSTS
OF ARBITRATION (INCLUDING ATTORNEYS’ FEES) SHALL BE BORNE BY THE PARTIES IN SUCH
MANNER AS SHALL BE DETERMINED BY
THE
ARBITRATOR OR ARBITRATORS.
8.2 Survival.
The
representations, warranties, covenants and agreements made herein shall survive
any investigation made by IMAGIN and the closing of the transactions
contemplated hereby to the extent provided therein. All statements as to factual
matters contained in any certificate or other instrument delivered by or on
behalf of POSITRON pursuant hereto in connection with the transactions
contemplated hereby shall be deemed to be representations and warranties by
POSITRON hereunder solely as of the date of such certificate or
instrument.
8.3 Successors.
Except
as otherwise expressly provided herein, the provisions hereof shall inure to
the
benefit of, and be binding upon, the successors, heirs, executors and
administrators of the parties hereto and shall inure to the benefit of and
be
enforceable by each person who shall be a holder of the Securities from time
to
time, other than the holders of Common Stock which has been sold by IMAGIN
pursuant to Rule 144 or an effective registration statement. IMAGIN may not
assign its rights hereunder to a competitor of POSITRON.
8.4 Entire
Agreement.
This
Agreement, the Related Agreements, the exhibits and schedules hereto and thereto
and the other documents delivered pursuant hereto constitute the full and entire
understanding and agreement between the parties with regard to the subjects
hereof and no party shall be liable or bound to any other in any manner by
any
representations, warranties, covenants and agreements except as specifically
set
forth herein and therein.
8.5 Severability.
In case
any provision of the Agreement shall be invalid, illegal or unenforceable,
the
validity, legality and enforceability of the remaining provisions shall not
in
any way be affected or impaired thereby.
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8.6 Amendment
and Waiver.
(a) This
Agreement may be amended or modified only upon the written consent of POSITRON
and IMAGIN.
(b) The
obligations of POSITRON and the rights of IMAGIN under this Agreement may be
waived only with the written consent of IMAGIN.
(c) The
obligations of IMAGIN and the rights of POSITRON under this Agreement may be
waived only with the written consent of POSITRON.
8.7 Delays
or Omissions.
It is
agreed that no delay or omission to exercise any right, power or remedy accruing
to any party, upon any breach, default or noncompliance by another party under
this Agreement or the Related Agreements, shall impair any such right, power
or
remedy, nor shall it be construed to be a waiver of any such breach, default
or
noncompliance, or any acquiescence therein, or of or in any similar breach,
default or noncompliance thereafter occurring. All remedies, either under this
Agreement or the Related Agreements, by law or otherwise afforded to any party,
shall be cumulative and not alternative.
8.8 Notices.
notices
required or permitted hereunder shall be in writing and shall be deemed
effectively given:
(a) upon
personal delivery to the party to be notified;
(b) when
sent
by confirmed facsimile if sent during normal business hours of the recipient,
if
not, then on the next business day;
(c) three
(3)
business days after having been sent by registered or certified mail, return
receipt requested, postage prepaid; or
(d) one
(1)
day after deposit with a nationally recognized overnight courier, specifying
next day delivery, with written verification of receipt.
All
communications shall be sent as follows:
If
to POSITRON, to:
|
Positron
Corporation
|
0000
Xxxxxxx Xxxxx Xx #000
Xxxxxxx,
Xxxxx 00000
Attention:
|
Chief
Executive Officer
|
Facsimile:
|
(000)
000-0000
|
with
a copy to:
Levy
& Boonshoft, P.C.
000
Xxxxxxx Xxxxxx
00xx
Xxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attention:
|
Xxxxx
Xxxxxxxxxxx, Esq.
|
Facsimile:
|
(000)
000-0000
|
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If
to IMAGIN, to:
|
Imagin
Diagnostic Centres, Inc.
|
00
Xxxxx
Xxxxxx Xxxx, Xxxxx 000
Xxxxxxx,
XX, X0X 0X0
Attention:
|
Xxxxxxx
Xxxxxx
|
Facsimile:
|
(000)
000-0000
|
or
at
such other address as POSITRON or IMAGIN may designate by written notice to
the
other parties hereto given in accordance herewith.
8.9 Attorneys'
Fees.
In the
event that any suit or action is instituted to enforce any provision in this
Agreement, the prevailing party in such dispute shall be entitled to recover
from the losing party all fees, costs and expenses of enforcing any right of
such prevailing party under or with respect to this Agreement, including,
without limitation, such reasonable fees and expenses of attorneys and
accountants, which shall include, without limitation, all fees, costs and
expenses of appeals.
8.10
Titles
and Subtitles.
The
titles of the sections and subsections of this Agreement are for convenience
of
reference only and are not to be considered in construing this
Agreement.
8.11 Facsimile
Signatures; Counterparts.
This
Agreement may be executed by facsimile signatures and in any number of
counterparts, each of which shall be an original, but all of which together
shall constitute one instrument.
8.12
Broker's
Fees.
Each
party hereto represents and warrants that no agent, broker, investment banker,
person or firm acting on behalf of or under the authority of such party hereto
is or will be entitled to any broker's or finder's fee or any other commission
directly or indirectly in connection with the transactions contemplated herein.
Each party hereto further agrees to indemnify each other party for any claims,
losses or expenses incurred by such other party as a result of the
representation in this Section 11.12 being untrue.
8.13
Construction.
Each
party acknowledges that its legal counsel participated in the preparation of
this Agreement and the Related Agreements and, therefore, stipulates that the
rule of construction that ambiguities are to be resolved against the drafting
party shall not be applied in the interpretation of this Agreement to favor
any
party against the other.
(The
rest of this page left intentionally blank.)
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IN
WITNESS WHEREOF,
the
parties hereto have executed the Securities Purchase Agreement as of the date
set forth in the first paragraph hereof.
POSITRON
CORPORATION
|
IMAGIN
DIAGNOSTIC CENTRES, INC.
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By:
|
/s/ Xxxxxxx Xxxxxx |
By:
|
/s/ Xxxxxxx Xxxxxx | |
Xxxxxxx
Xxxxxx, Chairman
|
Xxxxxxx
Xxxxxx, President, CEO
|
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