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Exhibit 4.1
SECURITIES PURCHASE AGREEMENT
SECURITIES PURCHASE AGREEMENT (this “ Agreement
”), dated as of May 2, 2008, by and among STEVEN POSNER
IRREVOCABLE TRUST, U/T/A (the “ Purchaser
”), and FIRSTWAY ENTERPRISES, INC., a Delaware corporation
(the " Company
").
W I T N E S S E T H:
WHEREAS , the Company has acquired 100% of the outstanding
membership interests of U.S. Imaging Holdings, LLC, a Nevada
limited liability company ("U.S. Imaging"); and
WHEREAS, as a consequence of its acquisition of U.S.
Imaging, the Company will be engaged in the diagnostic imaging
business through the operations of three wholly owned subsidiaries
of U.S. Imaging; and
WHEREAS , the Company requires additional capital to operate
its diagnostic imaging business; and
WHEREAS , Purchaser wishes to purchase from the Company, and
the Company wishes to sell and issue to Purchaser, certain
securities of the Company, upon the terms and subject to the
conditions set forth below.
NOW, THEREFORE , in consideration of the foregoing premises,
which are true and correct and are incorporated herein, and the
mutual covenants and agreements hereinafter contained, the Parties
hereby agree as follows:
1.
SALE AND PURCHASE OF SECURITIES .
1.1.
Transaction . Upon the terms and subject to the conditions
contained herein, at the Closing, as provided in Section 4 below,
the Company shall sell, issue and deliver to the Purchaser, and the
Purchaser shall purchase from the Company, free and clear of all
liens, claims, charges, restrictions or encumbrances of any kind or
nature (“ Liens
”), the following authorized but unissued securities of the
Company: i) a convertible debenture, in the face amount
of $1,000,000, bearing interest at 12% per annum; such debenture
(the "Debenture") shall be in substantially the form of
Exhibit
A attached hereto; and ii) Series A Stock Purchase Warrants
to purchase up to 5,555,555 shares of the common stock of the
Company, at a price of $.24 per share and Series B Stock Purchase
Warrants to purchase up to 5,555,555 shares of common stock at a
price of $.30 per share; such warrants (the "Warrants") shall be in
substantially the form of Exhibit B
attached hereto. The Debenture and the Warrants are
collectively referred to herein as the "Purchased
Securities."
1.2.
Purchase Price . The aggregate cash purchase
price for the Purchased Securities (the “ Purchase Price
”) shall be One Million Dollars ($1,000,000). The
Purchase Price shall be payable in immediately available funds at
Closing.
2.
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
. In order to induce the Purchaser to purchase the
Purchased Securities, the Company hereby represents and warrants to
Purchaser as follows:
2.1.
Corporate Organization and Authority . The
Company is a corporation duly organized, validly existing and in
good standing under the laws of Delaware and has all requisite
power and authority to own its properties, and carry on its
business as now being conducted.
2.2.
Capitalization .
2.2.1.
The
authorized capital stock of the Company consists of 270,000,000
shares consisting of 250,000,000 shares of common stock, $.0001 par
value per share, of which 50,000,000 shares are issued
and outstanding and 20,000,000 shares of Preferred Stock, $.0001
par value per share, none of which are issued and
outstanding. All of the outstanding shares were duly
authorized for issuance and are validly issued, fully paid and
non-assessable.
2.2.2.
Excepting
only the Debenture and the Warrants to be issued to Purchaser at
Closing, there are no existing options, warrants, calls, rights,
commitments, subscriptions, voting trusts or other agreements or
arrangements of any character to which the Company is a party
requiring, and there are no securities of the Company outstanding
which upon conversion or exchange would require, the issuance, sale
or transfer of any shares of capital stock of the Company or other
securities convertible into, exchangeable for or evidencing the
right to subscribe for or purchase shares of capital stock of the
Company.
2.2.3.
The
outstanding shares of common stock of the Company have not been
issued in violation of, and are not subject to, any purchase
option, call, right of first refusal, preemptive, subscription or
similar rights under any applicable law, the certificate of
incorporation or by-laws of the Company, any written or oral
contract or understanding to which the Company is subject, bound or
a party, or otherwise. There are no voting trusts or
other contracts, agreements or understandings to which the Company
is a party with respect to the voting of the capital stock of the
Company.
2.2.4.
Excepting
only shares of common stock reserved for issuance upon conversion
of the Debenture or exercise of the Warrants, there is no capital
stock of the Company reserved for issuance for any purpose. There
are no outstanding contractual obligations of the Company to
provide funds or to make any investment (in the form of a loan,
capital contribution or otherwise) in any other person or entity (a
“ Person
”). The Company (a) does not own or hold the
right to acquire any capital stock or other equity securities of
any Person, (b) does not have any direct or indirect equity or
ownership interest in any other Person, and (c) is not a member of
or participant in any partnership, joint venture, franchise
agreement, licensee agreement or similar arrangement.
2.3.
Proper Authorization and Execution . The
execution, delivery and performance of this Agreement and the
agreements, documents and other instruments to be executed,
delivered and performed in connection with or simultaneously with
the transactions contemplated hereby (the “ Related
Agreements ”) by the Company, and consummation of the
transactions contemplated hereby and thereby, have been approved by
the Company. The Company has obtained all necessary
approvals and consents to the transactions contemplated hereby and
by the Related Agreements. The Company has all power and
authority required to enter into and perform this Agreement and the
Related Agreements. The issuance of the Debenture and
the Warrants have been authorized and approved by the Company, and
upon issuance of such Purchased Securities to Purchaser, Purchaser
will have good and valid title to such securities, free and clear
of any and all Liens.
2.4.
Subsidiary . U.S. Imaging is a limited liability
company duly organized, validly existing and in good standing under
the laws of the State of Nevada. As of the Closing of
the transactions contemplated by this Agreement, all of the issued
and outstanding membership interests of U.S. Imaging are owned by
the Company, free and clear of any and all Liens.
All
subsequent representations and warranties by the Company set
forth in this Section 2 shall be applicable to the Company and
U.S. Imaging, separately and as a consolidated entity, and
assumes the acquisition of U.S. Imaging.
2.5.
No Breach Caused by Agreement . The execution,
delivery and performance of this Agreement and all the Related
Agreements will not conflict with, violate or result in a breach of
the provisions of, or constitute a default or result in the
acceleration of any obligations under, or permit termination of,
any agreement or instrument to which the Company is a party or by
which any such party is bound, nor will it conflict with or violate
the provisions of the Articles of Incorporation or Bylaws of the
Company (or similar governing document), or of any law, judgment,
decree, order, regulation or rule of any court or governmental
authority or any covenant or restriction binding upon the Company,
nor will it result in the imposition of any Lien upon any asset of
the Company.
2.6.
Securities Filings . The Company is current in
its reporting obligations with the Securities and Exchange
Commission ("SEC") under Section 13 of the Securities Exchange Act
of 1934, as amended, and all reports filed with the SEC comply with
applicable requirements except for the Form 8-K Current Report to
be filed in connection with the acquisition of US Imaging Holding
LLC.
2.7.
Title to Assets . Except as set forth on Schedule
2.7, the Company has good, valid and insurable title to, or a valid
leasehold interest in, all tangible and intangible assets of the
Company, including all assets reflected on the Company's balance
sheet as of December 31, 2007, free and clear of all Liens. The
assets of the Company are sufficient to conduct the business of the
Company as presently conducted. Excepting only the
premises in which U.S. Imaging's diagnostic imaging centers are
located (which are owned by affiliates of the Company and leased to
the Company), no assets owned or used by the Company are (a) owned
by, used by, or leased or licensed to or from any affiliate of the
Company, or (b) in the possession of any Person other than the
Company.
2.8.
Condition of Assets . The Company's assets are
presently, and will at the Closing be, in good order, condition and
repair in all material respects, subject only to ordinary wear and
tear, and are reasonably suitable for the purposes for which they
are used.
2.9.
Operation of the Business . Since December 31,
2007, the Company has: (a) maintained its assets in good
order, condition and repair, reasonable wear and tear excepted;
(b) carried on its business diligently and in substantially
the same manner as it previously has been carried on; and
(c) preserved its relationships with all customers, suppliers,
vendors, dealers, distributors, manufacturers and sales
representatives, referral sources and other persons or entities
with whom the Company has business relationships and are material
with respect to its business. The Company has
not: (i) entered into or otherwise altered,
modified or changed in any material respect, or terminated, any
contract, commitment, or transaction not in the usual and ordinary
course of the business and material to its business; (ii) sold
or disposed of any assets other than in the ordinary course of
business; (iii) purchased any equipment, or other items
requiring the expenditure of in excess of $10,000; or
(iv) entered into or otherwise altered, modified or changed in
any material respect, any personal or real property
leases.
2.10.
Absence of Material Changes . Since December 31,
2007, there has not been: (a) any material change
in the business, financial condition, working capital or net worth
of the Company, or in the operation of the business taken as a
whole; (b) any damage, destruction or loss, whether covered by
insurance or not, materially and adversely affecting the Company's
assets and/or properties and/or its business; (c) any entry
into, modification of or termination of any material commitment or
transaction, including, without limitation, any borrowing or
capital expenditure; or (d) any material change by the Company
in accounting methods or principles.
2.11.
Real Property .
2.11.1.
The
Company does not own any real property or any interests in real
property. Schedule 2.11.1 sets forth a complete list of all
real property and interests in real property leased by the Company
(individually, a “ Leased Real
Property ” and collectively the “ Leased Real
Properties ”), and the material terms of each lease
for the Leased Real Properties.
2.11.2.
The
Company has a valid and enforceable leasehold interest under each
of the leases for the Leased Real Properties to which it is a
party, and no event has occurred or circumstance exists that
constitutes a default or, with notice or lapse of time, or both,
would constitute a default by the Company under any lease for the
Leased Real Properties. The rental rates for each of the
Leased Real Properties is the fair market rental rate for each such
property.
2.11.3.
All
of the land, buildings, structures and other improvements used by
the Company in the conduct of its business are included in the
Leased Real Properties. The Company is not a lessor or sublessor
of, nor or does it make available for use to any Person, any Leased
Real Property or any portion thereof.
2.12.
Technology and Intellectual Property .
2.12.1.
Schedule
2.12.1 lists all copyrights, trademarks, trade names, brand names,
logos, service marks, patents, software and domain names,
technology and any other proprietary rights owned or used by the
Company, in all cases both domestic and foreign, and registered or
unregistered, and applications for any and all of the foregoing
(all items included or required to be included on such schedule,
the “ Intellectual
Property ”), and indicates whether the same is owned
or licensed. With respect to registered Intellectual Property or
applications therefor, Schedule 2.12.1 sets forth a list of all
jurisdictions in which such items are registered or applied
for. The Company is the owner of record of any
application, registration or grant for each item of Intellectual
Property. The Company has filed all documents and paid
all taxes, fees, and other financial obligations required to
maintain in force and effect all Intellectual
Property. To the best knowledge of the Company, the
Intellectual Property does not infringe upon the intellectual
property or other proprietary rights of any Person.
2.12.2.
The
Company is the sole and exclusive owner of the Intellectual
Property or has exclusive rights to use such Intellectual Property
pursuant to a valid license. The Company has not
previously assigned, transferred, conveyed or otherwise encumbered
its right, title and interest in the Intellectual
Property. The Company owns or otherwise possesses valid
and enforceable rights to use all Intellectual Property currently
used in its business as presently conducted.
2.12.3.
The
Company is not under any obligation to pay any royalties or similar
payments in connection with any intellectual property or
technology.
2.12.4.
Except
as otherwise disclosed on Schedule 2.12.1, the Company has not
granted any options, licenses or agreements of any kind relating to
the Intellectual Property.
2.12.5.
To
the best knowledge of the Company, there has been no
misappropriation of the Company's material trade secrets or other
material Intellectual Property by any Person.
2.13.
Material Contracts .
2.13.1.
Schedule
2.13 sets forth all of the following written or oral contracts,
agreements or understandings to which the Company is a party or by
which it is bound (collectively, the “ Material
Contracts ”), including any:
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Consulting,
employment, or medical director agreements (including agreements by
employees, consultants or medical directors with respect to
confidentiality, severance, non-competition and/or
nonsolicitation);
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Contracts
with any physicians or other Persons who refer patients to the
Company;
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Contracts
relating to leasing the Company's facilities to or otherwise
providing imaging services on behalf of any other
person;
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Contracts
relating to payments to the Company for health care services by any
third-party payer, including commercial payers, Medicare, Medicaid,
Tri-Care, or other governmental payers;
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Covenants
of the Company (or its employees or independent contractors) not to
compete or solicit or other covenant restricting the development,
marketing or distribution and delivery of the products and services
of the Company or the engagement in any activity;
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Contracts
under which the Company has borrowed any money from, established a
line of credit with, or issued any note, bond, debenture or other
evidence of indebtedness to, any Person or any other note, bond,
debenture or other evidence of indebtedness issued to any
person;
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Contracts
under which (a) any Person has directly or indirectly guaranteed
indebtedness, liabilities or obligations of the Company, or (b) the
Company has directly or indirectly guaranteed indebtedness,
liabilities or obligations of any Person;
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Contracts
for any joint venture, partnership, investment or similar
arrangement;
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Contracts
providing for indemnification, or any power of
attorney;
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Contracts
(including a purchase order) involving payment by the Company of
more than $50,000, or extending for a term of more than 180 days
from the date of this Agreement (unless terminable without payment
or penalty upon no more than 60 days’ notice);
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Contracts
with any governmental entity;
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Contracts
providing for the services of any dealer, distributor, sales
representative, franchisee or similar representative;
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Any
other contract to which the Company is a party or by or to which
the Company or any of its property or assets or business is bound
or subject to that has an aggregate future liability to any Person
in excess of $50,000 and is not terminable by the Company by notice
of not more than 60 days without payment or penalty;
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Any
leases, other than those listed in Schedule 2.9.1;
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Any
franchise agreement, license agreement or any similar contract;
or
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Any
contract other than as set forth above to which the Company is a
party or by which the Company's property or assets or business is
bound or subject to that is material to the Company.
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2.13.2.
All
Material Contracts are valid, binding and in full force and effect
and are enforceable by the Company in accordance with their
respective terms. The Company has performed all obligations
required to be performed by it to date under all Material
Contracts, and the Company is not (with or without the lapse of
time or the giving of notice, or both) in breach or default
thereunder, and, to the best knowledge of the Company, no other
party to any Material Contract is (with or without the lapse of
time or the giving of notice, or both) in breach or default in any
material respect thereunder. The Company has not received any
written notice of the intention of any party to terminate any
Material Contract, nor does the Company have knowledge of any basis
for such a termination. Complete and correct copies of all Material
Contracts, together with all modifications and amendments thereto,
have been delivered to the Purchaser.
2.14.
Compliance With Laws . The Company has complied
in all material respects with, and is not in violation of, any
applicable Federal, State, or local statute, law, or regulation
(including, without limitation, any applicable building, zoning,
environmental protection or other law, ordinance or
regulation). The Company has no liabilities relating to
contamination of or remediation of the environment. To
the best knowledge of Seller, (i) there are no underground
storage tanks located on the real property underlying any of such
locations at which the Company conducts Business, (ii) there
has not been any spill, disposal, discharge, storage
or
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