EXHIBIT 1
COMMON STOCK PURCHASE AGREEMENT
COMMON STOCK PURCHASE AGREEMENT, dated as of September 16, 2005 (this
"Agreement"), by and between MediVision Medical Imaging Ltd., an Israeli
corporation (the "Seller"), and Meadowbrook Opportunity Fund LLC., a Delaware
limited liability company (the "Purchaser").
The parties hereto agree as follows:
ARTICLE I.
PURCHASE AND SALE OF COMMON STOCK
Section 1.1. Purchase and Sale of Common Stock. Upon the following terms
and conditions, and in consideration of and in express reliance upon such terms
and conditions and the representations, warranties and covenants of this
Agreement, the Seller shall sell to the Purchaser and the Purchaser shall
purchase from the Seller 400,000 shares of common stock, no par value per share
(the "Shares"), at a price per share of $1.20, of Ophthalmic Imaging Systems, a
California corporation (the "Company"), for a cash purchase price of $480,000
(the "Purchase Price").
Section 1.2. Closing. The closing (the "Closing") of the purchase and sale of
the Shares to be acquired by the Purchaser from the Seller under this Agreement
shall take place (i) on or before September 20, 2005, provided, that all of the
conditions set forth in Article IV hereof shall have been fulfilled or waived in
accordance herewith, or (ii) at such other time and place or on such date
as the
Purchaser and the Seller may agree upon (such date on which the Closing occurs,
the "Closing Date"). At the Closing, the Seller shall deliver or cause to be
delivered to the Purchaser a certificate representing the Shares, together with
such stock powers duly endorsed in blank as the Purchaser may request, and all
other appropriate instruments of transfer. At the Closing, the Purchaser shall
deliver the Purchase Price by wire transfer to an account designated by the
Seller.
ARTICLE II.
REPRESENTATIONS AND WARRANTIES
Section 2.1. Representations and Warranties of the Seller. The Seller
hereby represents and warrants to the Purchaser as follows:
(a) Organization, Good Standing and Power. The Seller is a corporation
duly incorporated and validly existing under the laws of the State of Israel and
has the requisite power to own, lease and operate its properties and assets and
to conduct its business as it is now being conducted.
(b) Authorization; Enforcement. The Seller has the requisite power and
authority to enter into and perform this Agreement and to sell the Shares in
accordance with the terms hereof. The execution, delivery and performance of
this Agreement by the Seller and the consummation
by it of the transactions contemplated hereby have been duly and validly
authorized by all necessary corporate action, and no further consent or
authorization is required for the Seller to effect the transactions contemplated
by this Agreement. When executed and delivered by the Seller, this Agreement
shall constitute a valid and binding obligation of the Seller, enforceable
against the Seller in accordance with its terms, except as such enforceability
may be limited by applicable bankruptcy, reorganization, moratorium,
liquidation, conservatorship, receivership or similar laws relating to, or
affecting generally the enforcement of, creditor's rights and remedies or by
other equitable principles of general application.
(c) Title to Shares. The Seller has the right to transfer good, valid and
marketable title in and to all of the Shares, free and clear of any mortgages,
pledges, charges, liens, security interests or other encumbrances.
(d) Certain Fees. The Seller has not employed any broker or finder or
incurred any liability for any brokerage, investment banking, commission,
finders', structuring or financial advisory fees or other similar fees in
connection with this Agreement or the transactions contemplated hereby.
(e) Offering. No form of general solicitation or general advertising (as
defined in Regulation D of the Securities Act of 1933, as amended) was used by
the Seller or any of its respective representatives in connection with the offer
and sale of the Shares hereby, including, but not limited to, articles, notices
or other communications published in any newspaper, magazine or similar medium
or broadcast over television or radio, or any seminar or other meeting whose
attendees have been invited by any general solicitation or general advertising.
Section 2.2. Representations and Warranties of the Purchaser. The
Purchaser hereby represents and warrants to the Seller as follows:
(a) Organization and Standing of the Purchaser. The Purchaser is a
corporation, limited liability company or partnership duly incorporated or
organized, validly existing and in good standing under the laws of the
jurisdiction of its incorporation or organization.
(b) Authorization and Power. The Purchaser has the requisite power and
authority to enter into and perform this Agreement and to purchase the Shares
being sold to it hereunder. The execution, delivery and performance of this
Agreement by the Purchaser and the consummation by it of the transactions
contemplated hereby have been duly authorized by all necessary corporate (or
other organizational) action, and no further consent or authorization is
required for such Purchaser to effect the transactions contemplated by this
Agreement. When executed and delivered by the Purchaser, this Agreement shall
constitute valid and binding obligations of the Purchaser enforceable against
the Purchaser in accordance with its terms, except as such enforceability may be
limited by applicable bankruptcy, insolvency, reorganization, moratorium,
liquidation, conservatorship, receivership or similar laws relating to, or
affecting generally the enforcement of, creditor's rights and remedies or by
other equitable principles of general application.
(c) Acquisition for Investment. Except as contemplated by Section 3.1(c)
hereof, the Purchaser is purchasing the Shares solely for its own account for
the purpose of investment and
not with a view to or for sale in connection with any distribution. The
Purchaser does not have a present intention to sell any of the Shares, nor a
present arrangement (whether or not legally binding) or intention to effect any
distribution of any of the Shares, to or through any person or entity.
(d) Assessment of Risks. The Purchaser acknowledges that it (i) has such
knowledge and experience in financial and business matters that such Purchaser
is capable of evaluating the merits and risks of the Purchaser's investment in
the Company (by virtue of its purchase of Shares hereunder), (ii) is able to
bear the financial risks associated with an investment in the Shares and (iii)
has been given full access to such records of the Company and to the officers of
the Company as it has deemed necessary or appropriate to conduct its due
diligence investigation with respect to the Shares.
(e) No General Solicitation. The Purchaser acknowledges that the Shares
were not offered to the Purchaser by means of any form of general or public
solicitation or general advertising, or publicly disseminated advertisements or
sales literature, including (i) any advertisement, article, notice or other
communication published in any newspaper, magazine, or similar media or
broadcast over television or radio or (ii) any seminar or meeting to which such
Purchaser was invited by any of the foregoing means of communications.
(f) Accredited Investor. The Purchaser is an "accredited investor" (as
defined in Rule 501 of Regulation D under the Securities Act of 1933, as
amended).
(g) Legend. The Purchaser hereby acknowledges and agrees that the
certificates representing the Shares may contain the following, or a
substantially similar, legend, which legend shall be removed only upon receipt
by the Company of an opinion of its counsel, which opinion shall be satisfactory
to the Company, that such legend may be so removed:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE (THE
"SECURITIES") HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") OR ANY STATE
SECURITIES LAWS AND MAY NOT BE SOLD, TRANSFERRED OR OTHERWISE
DISPOSED OF UNLESS REGISTERED UNDER THE SECURITIES ACT AND
UNDER APPLICABLE STATE SECURITIES LAWS OR OPHTHALMIC IMAGING
SYSTEMS SHALL HAVE RECEIVED AN OPINION OF ITS COUNSEL THAT
REGISTRATION OF SUCH SECURITIES UNDER THE SECURITIES ACT AND
UNDER THE PROVISIONS OF APPLICABLE STATE SECURITIES LAWS IS
NOT REQUIRED.
(h) Certain Fees. The Purchaser has not employed any broker or finder or
incurred any liability for any brokerage, investment banking, commission,
finders', structuring or financial advisory fees or other similar fees in
connection with this Agreement or the transactions contemplated hereby.
(i) Reliance on Representations. The Seller is hereby expressly permitted to
rely on the Purchaser's representations and warranties set forth in Sections
2.2(c) through (h), inclusive.
ARTICLE III.
COVENANTS OF THE PARTIES
Section 3.1. Covenants. The parties hereto hereby covenant with each other
as follows, which covenants are for the benefit of such parties and their
respective permitted assigns:
(a) Further Assurances. From and after the Closing Date, upon the request
of the Purchaser or the Seller, the Seller and each Purchaser shall execute and
deliver such instruments, documents and other writings as may be reasonably
necessary or desirable to confirm and carry out and to effectuate fully the
intent and purposes of this Agreement.
(b) Commercially Reasonable Efforts. Each party hereto will use
commercially reasonable efforts to take, or cause to be taken, all action, and
to do, or cause to be done, all things necessary, proper or advisable,
consistent with applicable law, to consummate and make effective in the most
expeditious manner practicable the transactions contemplated hereby, including
without limitation, making all regulatory and other filings required by
applicable law as promptly as practicable after the date hereof.
(c) Registration on Form SB-2. The Seller covenants and agrees to cause
the Company to register the Shares for the resale by the Purchaser on a Form
SB-2 registration statement to be filed no later than twenty (20) days following
the Closing. If the Registration statement covering the resale of the Shares is
not effective within 60 days after the date hereof, the Purchaser shall have the
right to purchase 100,000 additional shares of common stock, no par value per
share, of the Company (the "Additional Shares"), at a price per share of $1.20;
provided, that Purchaser exercises such option by delivery of a written notice
to the Company and payment in cash of the purchase price for the Additional
Shares no later than 70 days after the date hereof.
ARTICLE IV.
CONDITIONS
Section 4.1. Conditions Precedent to the Obligation of the Seller to Close
and to Sell the Shares. The obligation hereunder of the Seller to close and sell
the Shares to the Purchaser at the Closing is subject to the satisfaction or
waiver, at or before the Closing of the conditions set forth below:
(a) Accuracy of the Purchaser's Representations and Warranties. The
representations and warranties of the Purchaser shall be true and correct in all
material respects as of the date when made and as of the Closing Date as though
made at that time, except for representations and warranties that are expressly
made as of a particular date, which shall be true and correct in all material
respects as of such date.
(b) Performance by the Purchaser. The Purchaser shall have performed,
satisfied and complied in all material respects with all covenants, agreements
and conditions required by this Agreement to be performed, satisfied or complied
with by the Purchaser at or prior to the Closing.
(c) Delivery of Purchase Price. The Purchase Price for the Shares shall
have been delivered to the Seller.
The conditions set forth in this Section 4.1 are for the Seller's sole benefit
and may be waived only by the Seller at any time in its sole discretion.
Section 4.2. Conditions Precedent to the Obligation of the Purchaser to
Close and to Purchase the Shares. The obligation hereunder of the Purchaser to
purchase the Shares and to consummate the transactions contemplated by this
Agreement is subject to the satisfaction or waiver, at or before the Closing, of
each of the conditions set forth below:
(a) Accuracy of the Seller's Representations and Warranties. Each of the
representations and warranties of the Seller in this Agreement shall be true and
correct in all material respects as of the Closing Date, except for
representations and warranties that speak as of a particular date, which shall
be true and correct in all material respects as of such date.
(b) Performance by the Seller. The Seller shall have performed, satisfied
and complied in all material respects with all covenants, agreements and
conditions required by this Agreement to be performed, satisfied or complied
with by the Seller at or prior to the Closing.
(c) Certificate. The Seller shall have delivered to the Purchaser a
certificate representing the Shares being acquired by the Purchaser at the
Closing together with such stock powers duly endorsed in blank as the Purchaser
may request.
The conditions set forth in this Section 4.2 are for the Purchaser's sole
benefit and may be waived by the Purchaser at any time in its sole discretion.
ARTICLE V.
MISCELLANEOUS
Section 5.1. Fees and Expenses. Each party hereto shall pay the fees and
expenses of its advisors, counsel, accountants and other experts, if any, and
all other expenses, incurred by such party incident to the negotiation,
preparation, execution, delivery and performance of this Agreement and the
transactions contemplated hereby.
Section 5.2. Entire Agreement; Amendment. This Agreement contains the
entire understanding and agreement (written or oral) of the parties hereto with
respect to the subject matter hereof and, except as specifically set forth
herein, neither the Seller nor the Purchaser makes any representation, warranty,
covenant or undertaking with respect to such matters, and they supersede all
prior understandings and agreements with respect to said subject matter, all of
which are merged herein. No provision of this Agreement may be waived or amended
other than
by a written instrument signed by each party hereto. Any amendment or waiver
effected in accordance with this Section 5.2 shall be binding upon each such
party and its permitted assigns.
Section 5.3. Waivers. No waiver by either party of any default with
respect to any provision, condition or requirement of this Agreement shall be
deemed to be a continuing waiver in the future or a waiver of any other
provision, condition or requirement hereof, nor shall any delay or omission of
any party to exercise any right hereunder in any manner impair the exercise of
any such right accruing to it thereafter.
Section 5.4. Headings. The article, section and subsection headings in
this Agreement are for convenience only and shall not constitute a part of this
Agreement for any other purpose and shall not be deemed to limit or affect any
of the provisions hereof.
Section 5.5. Successors and Assigns. This Agreement shall be binding upon
and inure to the benefit of the parties and their successors and assigns.
Neither party hereto may assign its rights or obligations under this Agreement
(by operation of law or otherwise) without the prior written consent of each
other party hereto, and any attempted assignment without such consent shall be
void ab initio.
Section 5.6. Governing Law. This Agreement shall be governed by and
construed in accordance with the internal laws of the State of New York, without
giving effect to the choice of law provisions thereof. This Agreement shall not
be interpreted or construed with any presumption against the party causing this
Agreement to be drafted.
Section 5.7. Counterparts. This Agreement may be executed in any number of
counterparts, all of which taken together shall constitute one and the same
instrument and shall become effective when counterparts have been signed by each
party and delivered to the other parties hereto, it being understood that all
parties need not sign the same counterpart.
Section 5.8. Severability. The provisions of this Agreement are severable
and, in the event that any court of competent jurisdiction shall determine that
any one or more of the provisions or part of the provisions contained in this
Agreement shall, for any reason, be held to be invalid, illegal or unenforceable
in any respect, such invalidity, illegality or unenforceability shall not affect
any other provision or part of a provision of this Agreement and this Agreement
shall be reformed and construed as if such invalid or illegal or unenforceable
provision, or part of such provision, had never been contained herein, so that
such provisions would be valid, legal and enforceable to the maximum extent
possible.
[Signature Page Follows]
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective authorized officers as of the date first above
written.
MEDIVISION MEDICAL IMAGING LTD.
By:_____________________________________
Name:
Title:
MEADOWBROOK OPPORTUNITY FUND LLC.
By:_____________________________________
Name:
Title: