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Exhibit
10.1
SECURITIES EXCHANGE AGREEMENT
This
Agreement dated as of the 2 nd
day of May, 2008, by and among Firstway Enterprises, Inc., a
Delaware corporation having its offices at 12876 Biscayne
Boulevard, Suite 276, Miami, Florida 33181 (the
“Issuer”), US Imaging Holding LLC, with offices at
600 North Cattleman Road, Sarasota, Florida 34232
(“Imaging”), John Uphold, an individual
(“Uphold”) and Stephen Miley, an individual
(“Miley”). Uphold and Miley are
hereinafter referred to collectively as the
“Members” and individually as a
“Member”).
W I T N E S S E T H:
WHEREAS,
the Members are the holders of all of the issued and
outstanding membership interest of Imaging (the “Imaging
Interest”); and
WHEREAS,
the Issuer desires to acquire all of the Imaging Interest,
which represent all of the capital of Imaging, from the
Members, and is willing to issue shares of its common stock,
par value $.001 per share (“Common Stock”), to the
Members in exchange for the Imaging Interest on and subject to
the terms and conditions of this Agreement;
WHEREAS,
the Members have executed this agreement pursuant to which
they agreed to transfer the Imaging Interest to the Issuer for
an aggregate of 40,952,189 shares of common stock of the
Issuer (the “Shares”);
WHEREAS,
this Agreement sets forth the terms and conditions on which
the Members are transferring the Imaging Interest to the
Issuer; and
NOW,
THEREFORE, for the mutual consideration set out herein, the
parties agree as follows:
1.
Exchange of Securities .
(a)
Issuance of Shares by Issuer . On and subject to
the conditions set forth in this Agreement, the Issuer will issue
the Shares to the Members in exchange for all of the outstanding
membership interest of Imaging, which is represented by the Imaging
Interest. The Shares will be issued to the Members in
the amounts set forth after their respective names in Schedule A to
this Agreement.
(b)
Transfer of Imaging Interest by the Members . On
and subject to the conditions set forth in this Agreement, the
Members will transfer to the Issuer all of the Imaging Interest in
exchange for the Shares. Each Member holds the Imaging
Interest set forth after his name in Schedule A to this
Agreement.
(c)
Closing . The issuance of the Shares to the
Members and the transfer of the Imaging Interest to the Issuer will
take place at a closing (the “Closing”) to be held at
the Law Offices of Stephen M. Fleming, PLLC, 403 Merrick Avenue, 2
nd
Floor, East Meadow, New York 11554 as soon as possible after or
contemporaneously with the satisfaction or waiver of all of the
conditions to closing set forth in Sections 4 and 5 of this
Agreement (the “Closing Date”).
(d)
A
dherence
with Applicable Securities Laws . Each of the
Members agrees that he is acquiring the Shares for investment
purposes and will not offer, sell or otherwise transfer, pledge or
hypothecate any of the Shares issued to him directly or indirectly
unless:
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(i)
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the sale is to
Issuer;
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(ii)
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the sale is made pursuant
to the exemption from registration under the Securities Act
of 1933, as amended, , provided by
Rule 144 thereunder; or
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(iii)
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the
Shares are sold in a transaction that does not require registration
under the Securities Act of 1933, as amended, or any applicable
United States state laws and regulations governing the offer and
sale of securities, and the vendor has furnished to Issuer an
opinion of counsel to that effect or such other written opinion as
may be reasonably required by Issuer.
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The Members acknowledge
that the certificates representing the Shares shall bear the
following legend:
THESE
SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT
OF 1933. THEY MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED,
HYPOTHECATED OR OTHERWISE TRANSFERRED IN THE ABSENCE OF A
REGISTRATION STATEMENT WITH RESPECT TO THE SECURITIES UNDER
SUCH ACT AND THE OPINION OF COUNSEL REASONABLY SATISFACTORY TO
THE COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED OR UNLESS
SOLD PURSUANT TO RULE 144 OR RULE 144A OF SUCH
ACT.
2.
Representations and Warranties of the Issuer
. The Issuer and Stuart Posner and Russell Adler
(together, Messrs Posner and Adler are collectively referred to as
the Majority Stockholders, hereby represent and warrant to the
Members as follows:
(a)
General .
(i)
The
Issuer is a corporation duly organized, validly existing and in
good standing under the laws of the State of Delaware.
(ii)
The
Issuer’s authorized capital stock consists of 20,000,000
shares of preferred stock, par value $.0001 per shares, none of
which are issued or outstanding, and 250,000,000 shares of Common
Stock, of which there will be 9,047,811 shares, or a commitment to
issue shares, outstanding as of the Closing Date. All of the shares
of the Issuer are duly authorized, validly issued, fully paid and
nonassessable. There are no options, warrants or other rights,
agreements, arrangements or commitments of any character relating
to the issued or unissued capital stock of the Issuer or obligating
the Issuer to issue or sell any shares of capital stock of or other
equity interests in the Issuer. There is no personal liability, and
there are no preemptive rights with regard to the capital stock of
the Issuer, and no right-of-first refusal or similar catch-up
rights with regard to such capital stock. Except as set forth
herein, there are no outstanding contractual obligations or other
commitments or arrangements of the Issuer to (A) repurchase, redeem
or otherwise acquire any shares of (or any interest therein) or (B)
to provide funds to or make any investment (in the form of a loan,
capital contribution or otherwise) in any other entity, or (C)
issue or distribute to any person any capital stock of the Issuer,
or (D) issue or distribute to holders of any of the capital stock
of the Issuer any evidences of indebtedness or assets of the
Issuer. All of the outstanding securities of the Issuer have been
issued and sold by the Issuer in full compliance in all material
respects with applicable federal and state securities
laws.
(iii)
The
Issuer has full power and authority to carry out the transactions
provided for in this Agreement, and this Agreement constitutes the
legal, valid and binding obligations of the Issuer, enforceable in
accordance with their respective terms, except as enforceability
may be limited by bankruptcy, insolvency and other laws of general
application affecting the enforcement of creditor’s rights
and except that any remedies in the nature of equitable relief are
in the discretion of the court. All necessary action
required to be taken by the Issuer for the consummation of the
transactions contemplated by this Agreement has been
taken.
(iv)
The
Shares, when issued pursuant to this Agreement, will be duly and
validly authorized and issued, fully paid and
non-assessable. The issuance of the Shares to the
Members is exempt from the registration requirements of the
Securities Act of 1933, as amended (the “Securities
Act”), pursuant to an exemption provided by Section 4(2)
thereunder.
(v)
The
Issuer has no subsidiaries.
(vi)
The
Issuer does not own any personal or real property or have any
employees.
(vii) The Issuer does not
have a bank account.
(b)
Property . The Issuer does not own any real
property. The Issuer does not own any intellectual
property rights. None of the Issuer’ assets are
subject to any encumbrances or other Claims. A
“Claim” shall mean any security interest, lien, pledge,
claim, charge, escrow, encumbrance, option, right of first refusal,
mortgage, indenture, security agreement or other agreement,
arrangement, contract, commitment, understanding or obligation,
whether or not relating in any way to credit or the borrowing of
money and whether or not voluntarily incurred or arising under any
law.
(c)
Litigation . There are no material claims,
actions, suits, proceedings, inquiries, labor disputes or
investigations (whether or not purportedly on behalf of the Issuer)
pending or, to the Issuer’s Best Knowledge, threatened
against the Issuer or any of its assets, at law or in equity or by
or before any governmental entity or in arbitration or
mediation. No bankruptcy, receivership or debtor relief
proceedings are pending or, to the best of the Issuer’s
knowledge, threatened against the Issuer.
(d)
Compliance with Laws . The Issuer has complied
with, is not in violation of, and has not received any notices of
violation with respect to, any federal, state, local or foreign
law, judgment, decree, injunction or order, applicable to it, the
conduct of its business, or the ownership or operation of its
business. References in this Agreement to
“laws” shall refer to any laws, rules or regulations of
the United States, as the case may be, federal, state or local
government or any governmental or quasi-governmental agency,
bureau, commission, instrumentality or judicial body (including,
without limitation, any federal or state securities law,
regulation, rule or administrative order).
(e)
Taxes . The Issuer has properly filed all tax
returns required to be filed and has paid all taxes shown thereon
to be due. To the Best Knowledge of officers the Issuer,
all tax returns previously filed are true and correct in all
material respects. As used in this Agreement, a
party’s Best Knowledge shall mean and include (i) actual
knowledge and (ii) that knowledge which a prudent businessperson
would reasonably have obtained in the management of such
person’s business affairs after making due inquiry and
exercising the due diligence which a prudent businessperson should
have made or exercised, as applicable, with respect
thereto. Actual or imputed knowledge of any director or
officer of a party shall be deemed to be knowledge of the
party.
(f)
No Defaults .
(i)
The
Issuer has performed all material obligations required to be
performed by it, and the Issuer is not in default, in any material
respect, under any agreement to which it is a party except to the
extent that any such breach would not have a Material Adverse
Effect.
(ii)
The
Issuer is not in violation of its certificate of incorporation or
by-laws. The execution and delivery of this Agreement by
the Issuer and the consummation by the Issuer of the transactions
contemplated by this Agreement will not result in any violation of
the Issuer’s certificate of incorporation or by-laws or any
applicable law or be in conflict with, constitute a default under,
or result in a violation of, or give rise to any right of
termination, cancellation or acceleration under, any material
agreement to which the Issuer is a party or any court order or
decree or other governmental order or decree.
(g)
Conflicts; Consents of Third Parties .
(i) The
execution and delivery by Issuer of this Agreement and the
consummation of the transactions contemplated hereby or
thereby, or compliance by Issuer with any of the provisions
hereof or thereof will not (i) conflict with, or result in the
breach of, any provision of the articles of incorporation or
by-laws or comparable organizational documents of the Issuer;
(ii) conflict with, violate, result in the breach or
termination of, or constitute a default under any note, bond,
mortgage, indenture, license, agreement or other instrument or
obligation to which the Issuer is a party or by which any of
them or any of their respective properties or assets is bound;
(iii) violate any statute, rule, regulation, order or decree
of any governmental body or authority by which the Issuer is
bound; or (iv) result in the creation of any lien upon the
properties or assets of the Issuer.
(ii)
No consent, waiver, approval, order, permit or authorization
of, or declaration or filing with, or notification to, any
person or governmental or regulatory authority is required
on the part of Issuer in connection with the execution and
delivery of this Agreement.
(h)
Financial
Statements .
(i) The
Members have reviewed copies of the audited balance sheets of
the Issuer as at December 31, 2007 and the related audited
statements of income and of cash flows of the Issuer for the
years then ended and the copies of the unaudited balance
sheets of the Issuer as at March 31, 2007 and the related
unaudited statements of income and of cash flows of the Issuer
for the years then ended (the “Financial
Statements”). Each of the Financial
Statements is complete and correct in all material respects,
has been prepared in accordance with GAAP (subject to normal
year-end adjustments in the case of the unaudited statements)
and in conformity with the practices consistently applied by
the Issuer without modification of the accounting principles
used in the preparation thereof and presents fairly the
financial position, results of operations and cash flows of
the Issuer as at the dates and for the periods
indicated.
(ii) For
the purposes hereof, the audited balance sheet of the Issuer
as at December 31, 2007 is referred to as the "Balance Sheet"
and December 31, 2007 is referred to as the “Balance
Sheet Date”.
(i)
No
Undisclosed Liabilities . Issuer has no
indebtedness, obligations or liabilities of any kind (whether
accrued, absolute, contingent or otherwise, and whether due or
to become due) that would have been required to be reflected
in, reserved against or otherwise described on the Balance
Sheet or in the notes thereto in accordance with GAAP which
was not fully reflected in, reserved against or otherwise
described in the Balance Sheet or the notes thereto or was not
incurred in the ordinary course of business consistent with
past practice since the Balance Sheet Date.
(j)
Absence of
Certain Developments . Except as expressly
contemplated by this Agreement, since the Balance Sheet
Date:
(i) there
has not been any material adverse change nor has there
occurred any event which is reasonably likely to result in a
material adverse change;
(ii) there
has not been any damage, destruction or loss, whether or not
covered by insurance, with respect to the property and assets
of the Issuer having a replacement cost of more than $25,000
for any single loss or $100,000 for all such
losses;
(iii) there
has not been any declaration, setting aside or payment of any
dividend or other distribution in respect of any shares of
capital stock of the Issuer or any repurchase, redemption or
other acquisition by the Issuer of any outstanding shares of
capital stock or other securities of, or other ownership
interest in, the Issuer;
(iv) the
Issuer has not awarded or paid any bonuses to employees of the
Issuer;
(v) there
has not been any change by the Issuer in accounting or tax
reporting principles, methods or policies; and
(vi) the
Issuer has not entered into any transaction or contract or
conducted its business other than in the ordinary course
consistent with past practice.
(k) Issuer
is a reporting issuer under Section 12(g) of the Securities
Exchange Act of 1934 (the “34
Act”). Issuer is now, and as of the Closing
will be, current in its filings and will have filed all of the
filings required to have been made in the previous twelve
months.
(l)
Reliance by
Members . The representations and warranties
set forth in this Section 2, taken together, do not contain
any untrue statement of a material fact or omit to state a
material fact necessary to make the statements contained
herein and therein, when taken together, not
misleading. Notwithstanding the foregoing, Members
acknowledges that no representation or warranty is made by the
Issuer with respect to any projections made by the
Issuer.
(m)
No
Additional Representations; Reliance . The
Issuer and Majority Stockholders acknowledge and agree that
neither Uphold, nor any of his Representatives or agents has
made any representations, warranties, covenants, agreements
or guaranties to the Issuer, the Majority Stockholders or any
of their respective officers, directors, Representatives or
agents, express or implied, in connection with this Agreement
and the transactions contemplated herein, except for the
express representations, warranties, covenants and agreements
of Uphold set forth below.
3.
Representations and Warranties of Members . Each
Member severally and not jointly represents and warrants to the
Issuer, for himself as follows:
(a)
Such
Member is the sole record and beneficial owner of the Imaging
Interest set forth after his name in Schedule A to this Agreement,
subject to no Claim.
(b)
Such
Member is a resident of the United States of America.
(c)
Such
Member has full power and authority to carry out the transactions
provided for in this Agreement, and this Agreement constitutes the
legal, valid and binding obligations of such Member, enforceable in
accordance with its terms, except as enforceability may be limited
by bankruptcy, insolvency and other laws of general application
affecting the enforcement of creditor’s rights and that any
remedies in the nature of equitable relief are in the discretion of
the court. All necessary action required to be taken by
such Member for the consummation of the transactions contemplated
by this Agreement has been taken.
(d)
Such
Member is an accredited investor within the meaning of Rule 501 of
the Commission pursuant to the Securities Act;
(e)
Such
Member is acquiring the Shares pursuant to this Agreement for
investment and not with a view to the sale or distribution
thereof;
(f)
Such
Member understands that the Shares constitute restricted securities
within the meaning of Rule 144 of the Securities Exchange
Commission (the “Commission”) pursuant to the
Securities Act and may not be sold or otherwise transferred except
pursuant to an effective registration statement or an exemption
from the registration requirements of the Securities
Act;
(g)
Such
Member has been advised by counsel as to the meaning and
implication of the acquisition of restricted securities and the
illiquid nature of the Shares;
(h)
Such
Member acknowledges that the certificate or certificates for the
Shares will bear the Issuer’s customary Securities Act
restrictive legend;
(i)
Such
Member represents that he understands that an investment in the
Shares involves a high degree of risk; and
(j)
Such
Member represents that the execution and performance of this
Agreement will not constitute a breach of any contract to which
such Member is a party or by which he is bound, and will not
violate any judgment, decree, order, writ, rule, statute, or
regulation applicable to such Members or his
properties.
4.
Representations
and Warranties of Miley . Miley
represents and warrants to the Issuer as
follows:
(a)
Organization .
(i)
Imaging
is a limited liability company, duly organized, validly existing
and in good standing under the laws of the State of Nevada and has
full power and authority to carry on its business as and where such
business is operated. Imaging is the sole member and
owns 100% of the equity of US Imaging Corp, LLC, Axcess Diagnostics
Bradenton, LLC and Axcess Diagnostics Sarasota, LLC (the
“Subsidiaries”). All necessary company action required
to be taken by Imaging and the Members r
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