SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
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SCHEDULE 13D
(Rule 13d-101)
INFORMATION TO BE INCLUDED IN STATEMENTS FILED PURSUANT TO RULE 13d-1(a) AND
AMENDMENTS THERETO FILED PURSUANT TO RULE 13d-2(a)
(Amendment No. 1)(*)
4-D NEUROIMAGING, INC.
(Name of Issuer)
Common Stock, no par value
(Title of Class of Securities)
09060N107
(CUSIP Number)
Mr. Antonio Brufau Niubo
Caja de Ahorros y Pensiones de Barcelona
Avenida Diagonal, 621-629
08028 Barcelona, Spain
(Name, Address and Telephone Number of Person Authorized to Receive Notices
and Communications)
July 31, 2000
(Date of Event which requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to report
the acquisition which is the subject of this Schedule 13D, and is filing this
schedule because of Rule 13d-1(e), 13d-1(f) or 13d-1(g), check the following
box. |_|
Note: Schedules filed in paper format shall include a signed original and five
copies of the schedule, including all exhibits. See Rule 13d-7(b) for other
parties to whom copies are to be sent.
* The remainder of this cover page shall be filled out for a reporting person's
initial filing on this form with respect to the subject class of securities, and
for any subsequent amendment containing information which would alter
disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be deemed
to be "filed" for the purpose of Section 18 of the Securities Exchange Act of
1934 or otherwise subject to the liabilities of that section of the Act but
shall be subject to all other provisions of the Act (however, see the Notes).
<PAGE>
CUSIP No. 09060N107 13D
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1. Name of Reporting Persons
I.R.S. Identification Nos. of Above Persons (Entities Only)
Caja de Ahorros y Pensiones de Barcelona
IRS Identification Number: N/A
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2. Check the Appropriate Box if a Member of a Group (a) |X|
(b) |_|
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3. SEC Use Only
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4. Source of Funds
Not Applicable
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5. Check Box if Disclosure of Legal Proceedings is Required Pursuant
to Item 2(d) or 2(e). |_|
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6. Citizenship or Place of Organization
Spain
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7. Sole Voting Power
Number of 0
Shares -----------------------------------------------
Beneficially 8. Shared Voting Power
Owned
By 10,000,000
Each -----------------------------------------------
Reporting 9. Sole Dispositive Power
Person
With 0
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10. Shared Dispositive Power
10,000,000
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11. Aggregate Amount Beneficially Owned by Each Reporting Person
10,000,000
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12. Check Box if the Aggregate Amount in Row (11) Excludes
Certain Shares |_|
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13. Percent of Class Represented by Amount in Row (11)
11.8%
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14. Type of Reporting Person
BK
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CUSIP No. 09060N107 13D
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1. Name of Reporting Persons
I.R.S. Identification Nos. of Above Persons (Entities Only)
Caixa Holding, S.A.
IRS Identification Number: N/A
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2. Check the Appropriate Box if a Member of a Group (a) |X|
(b) |_|
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3. SEC Use Only
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4. Source of Funds (See Instructions)
Not Applicable
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5. Check Box if Disclosure of Legal Proceedings is Required Pursuant
to Item 2(d) or 2(e). |_|
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6. Citizenship or Place of Organization
Spain
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7. Sole Voting Power
Number of 0
Shares -----------------------------------------------
Beneficially 8. Shared Voting Power
Owned
By 10,000,000
Each -----------------------------------------------
Reporting 9. Sole Dispositive Power
Person
With 0
-----------------------------------------------
10. Shared Dispositive Power
10,000,000
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11. Aggregate Amount Beneficially Owned by Each Reporting Person
10,000,000
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12. Check Box if the Aggregate Amount in Row (11) Excludes
Certain Shares |_|
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13. Percent of Class Represented by Amount in Row (11)
11.8%
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14. Type of Reporting Person (See Instructions)
CO
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<PAGE>
Item 1. Security and Issuer
The class of equity securities to which this joint statement on
Schedule 13D relates is the common stock, no par value (the "Common Stock"), of
4-D Neuroimaging, Inc. a California corporation formerly named Biomagnetic
Technologies, Inc. with its principal executive offices at 9727 Pacific Heights
Boulevard, San Diego, California 92121-3719 (the "Issuer").
Item 2. Identity and Background
The persons listed in numbers 1 and 2 below are the persons filing this
joint statement.
1. (a) Caja de Ahorros y Pensiones de Barcelona ("La Caixa"), a
savings bank organized under the laws of Spain.
(b) Avenida Diagonal, 621-629, 08028 Barcelona, Spain.
(c) The principal business of La Caixa is as a savings bank. In
addition, La Caixa is a shareholder in Spanish and certain
foreign service and utilities companies.
(d) During the last five years, La Caixa has not been convicted in
any criminal proceeding.
(e) During the last five years, La Caixa has not been a party to a
civil proceeding of a judicial or administrative body of
competent jurisdiction and as a result of such proceeding is
or was subject to a judgment, decree or final order enjoining
future violations of, or prohibiting or mandating activities
subject to, federal or state securities laws or finding any
violation with respect to such laws.
Information regarding the directors and executive officers of La Caixa
is set forth on Schedule I attached hereto, which Schedule is incorporated
herein by reference. All of the directors and executive officers of La Caixa are
citizens of Spain. During the last five years, to the best of the knowledge of
La Caixa, no person named on Schedule I has been (a) convicted in a criminal
proceeding (excluding traffic violations or similar misdemeanors) or (b) a party
to a civil proceeding of a judicial or administrative body of competent
jurisdiction and as a result of such proceeding is or was subject to a judgment,
decree or final order enjoining future violations of, or prohibiting or
mandating activities subject to, federal or state securities laws or finding any
violation with respect to such laws.
2. (a) Caixa Holding, S.A., a corporation organized under the laws of
Spain.
(b) Avenida Diagonal, 621, 08028 Barcelona, Spain.
(c) The principal business of Caixa Holding, S.A. is to hold
investments made by the La Caixa Group for its own account.
(d) Caixa Holding, S.A. was formed on December 12, 1980. Since its
formation, Caixa Holding, S.A. has not been convicted in any
criminal proceeding.
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(e) Since its formation, Caixa Holding, S.A. has not been a party
to a civil proceeding of a judicial or administrative body of
competent jurisdiction and as a result of such proceeding is
or was subject to a judgment, decree or final order enjoining
future violations of, or prohibiting or mandating activities
subject to, federal or state securities laws or finding any
violation with respect to such laws.
Caixa Holding, S.A. is a wholly-owned subsidiary of La Caixa.
Information regarding the directors and executive officers of Caixa Holding,
S.A. is set forth on Schedule II attached hereto, which Schedule is incorporated
herein by reference. All of the directors and executive officers of Caixa
Holding, S.A. are citizens of Spain. During the last five years, to the best of
the knowledge of Caixa Holding, S.A., no person named on Schedule II has been
(a) convicted in a criminal proceeding (excluding traffic violations or similar
misdemeanors) or (b) a party to a civil proceeding of a judicial or
administrative body of competent jurisdiction and as a result of such proceeding
is or was subject to a judgment, decree or final order enjoining future
violations of, or prohibiting or mandating activities subject to, federal or
state securities laws or finding any violation with respect to such laws.
Item 3. Source and Amount of Funds or Other Consideration
La Caixa has contributed to Caixa Holding, S.A. all the 10,000,000
shares of common stock that it owned (the "Shares"), receiving as a
consideration newly issued shares of Caixa Holding, S.A. No funds were paid to
La Caixa in return for the transfer of the Shares. La Caixa has transferred the
Shares to Caixa Holding, S.A. in connection with La Caixa's reorganization of
its holdings of certain investments.
Item 4. Purpose of Transaction
Not applicable.
Item 5. Interest in Securities of the Issuer
(a) La Caixa and Caixa Holding, S.A. are the joint beneficial owners of
10,000,000 shares of Common Stock (the "Shares"), representing approximately
11.8% of the outstanding Common Stock. The calculation of the foregoing
percentage is based on the number of shares of Common Stock disclosed by the
Issuer as outstanding as of May 10, 2000, as set out in the Issuer's quarterly
report on Form 10-Q for the period ended March 31, 2000.
(b) La Caixa and Caixa Holding, S.A. have shared power to vote or
direct the vote and shared power to dispose or direct the disposition of the
Shares.
(c) Except as described herein, there have been no transactions by La
Caixa in the Common Stock during the past 60 days.
(d) No one other than La Caixa and Caixa Holding, S.A. is known to have
the right to receive or the power to direct the receipt of dividends from, or
the proceeds from the sale of, the Shares.
(e) Not applicable.
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Item 6. Contracts, Arrangements, Understanding of Relationships with Respect to
Securities of the Issuer
Not applicable.
Item 7. Material to be Filed as Exhibits
Exhibit 1 Offshore Stock Subscription Agreement, dated July 31, 1998.
Exhibit 2 English language summary of July 31, 2000 share transfer.
All material to be filed as exhibits to this Schedule 13D are attached hereto.
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After due inquiry and to the best of my knowledge and belief, I certify
that the information set forth in this statement is true, complete and correct.
Dated: August 1, 2000
Caja de Ahorros y Pensiones de Barcelona
By:
------------------------------------
Name: Antonio Brufau Niubo
Title: Chief Executive Officer of
La Caixa Group
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After due inquiry and to the best of my knowledge and belief, I certify
that the information set forth in this statement is true, complete and correct.
Dated: August 1, 2000
Caixa Holding, S.A.
By:
------------------------
Name: Antonio Brufau Niubo
Title: Executive Director
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<PAGE>
Schedule I
Directors and Executive Officers of Caja Ahorros y Pensiones de Barcelona
1. Board of Directors
Jose Vilarasau Francesc Bove
Engineer Agricultural
Avenida Diagonal, 621-629 Avenida Diagonal, 621-629
08028 Barcelona, Spain 08028 Barcelona, Spain
Spanish Spanish
Josep-Joan Pinto Marta Corachan
Lawyer Nurse
Avenida Diagonal, 621-629 Avenida Diagonal, 621-629
08028 Barcelona, Spain 08028 Barcelona, Spain
Spanish Spanish
Enric Alcantara-Garcia Lluis Elias
Lawyer Lawyer
Avenida Diagonal, 621-629 Avenida Diagonal, 621-629
08028 Barcelona, Spain 08028 Barcelona, Spain
Spanish Spanish
Ricardo Fornesa Ramon Fabrega
Lawyer Office Administration
Avenida Diagonal, 621-629 Avenida Diagonal, 621-629
08028 Barcelona, Spain 08028 Barcelona, Spain
Spanish Spanish
Joan Antoli Josep Ramon Forcada
Office Administration Lawyer
Avenida Diagonal, 621-629 Avenida Diagonal, 621-629
08028 Barcelona, Spain 08028 Barcelona, Spain
Spanish Spanish
Maria Isabel Gabarro Mateu Puigros
Notary Public Teacher
Avenida Diagonal, 621-629 Avenida Diagonal, 621-629
08028 Barcelona, Spain 08028 Barcelona, Spain
Spanish Spanish
I-1
<PAGE>
Manuel Garcia Maria Assumpcio Rafart
Office Administration Economist
Avenida Diagonal, 621-629 Avenida Diagonal, 621-629
08028 Barcelona, Spain 08028 Barcelona, Spain
Spanish Spanish
Maria del Carme Goma Manuel Raventos
Teacher Engineer
Avenida Diagonal, 621-629 Avenida Diagonal, 621-629
08028 Barcelona, Spain 08028 Barcelona, Spain
Spanish Spanish
Jordi Mercader Maria Pilar Riart
Engineer Housewife
Avenida Diagonal, 621-629 Avenida Diagonal, 621-629
08028 Barcelona, Spain 08028 Barcelona, Spain
Spanish Spanish
Julio Miralles Joan Vilalta
Manager Transport
Avenida Diagonal, 621-629 Avenida Diagonal, 621-629
08028 Barcelona, Spain 08028 Barcelona, Spain
Spanish Spanish
Miquel Noguer Salvador Gabarro
Office Administration Engineer
Avenida Diagonal, 621-629 Avenida Diagonal, 621-629
08028 Barcelona, Spain 08028 Barcelona, Spain
Spanish Spanish
2. Executive Directors
Isidro Faine Fernando Ramirez
President and Chief Executive Officer Executive Vice President
of "La Caixa" Avenida Diagonal, 621-629
Avenida Diagonal, 621-629 08028 Barcelona, Spain
08028 Barcelona, Spain Spanish
Spanish
Antonio Brufau Julio Lage
President and Chief Executive Officer Executive Vice President
of "La Caixa" Group Avenida Diagonal, 621-629,
Avenida Diagonal, 621-629 08028 Barcelona, Spain
08028 Barcelona, Spain Spanish
Spanish
I-2
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Antonio Massanell Rosa Maria Cullell
Senior Executive Vice President Senior Executive Vice President
Avenida Diagonal, 621-629 Avenida Diagonal, 621-629
08028 Barcelona, Spain 08028 Barcelona, Spain
Spanish Spanish
Tomas Muniesa
Executive Vice President
Avenida Diagonal, 621-629
08028 Barcelona, Spain
Spanish
I-3
<PAGE>
Schedule II
Directors and Executive Officers of Caixa Holding, S.A.
1. Board of Directors
Jose Vilarasau Jose Juan Pinto
Engineer Lawyer
Avenida Diagonal, 621-629 Avenida Diagonal, 621-629
08028 Barcelona, Spain 08028 Barcelona, Spain
Spanish Spanish
Enrique Alcantara-Garcia Ramon Fabrega
Lawyer Office Administration
Avenida Diagonal, 621-629 Avenida Diagonal, 621-629
08028 Barcelona, Spain 08028 Barcelona, Spain
Spanish Spanish
Maria Isabel Gabarro Miquel Jorge Mercader
Notary Public Engineer
Avenida Diagonal, 621-629 Avenida Diagonal, 621-629
08028 Barcelona, Spain 08028 Barcelona, Spain
Spanish Spanish
Manuel Raventos Isidro Faine
Engineer Economist
Avenida Diagonal, 621-629 Avenida Diagonal, 621-629
08028 Barcelona, Spain 08028 Barcelona, Spain
Spanish Spanish
Antonio Brufau Ricardo Fornesa
Economist Lawyer
Avenida Diagonal, 621-629 Avenida Diagonal, 621-629
08028 Barcelona, Spain 08028 Barcelona, Spain
Spanish Spanish
2. Executive Directors
Isidro Faine Antonio Brufau
Economist Economist
Avenida Diagonal, 621-629 Avenida Diagonal, 621-629
08028 Barcelona, Spain 08028 Barcelona, Spain
Spanish Spanish
II-1
<PAGE>
Antonio Massanell Rosa Maria Cullell
Senior Executive Vice President Senior Executive Vice President
of "La Caixa" of "La Caixa"
Avenida Diagonal, 621-629 Avenida Diagonal, 621-629
08028 Barcelona, Spain 08028 Barcelona, Spain
Spanish Spanish
II-2
<PAGE>
Exhibit 1
OFFSHORE STOCK SUBSCRIPTION AGREEMENT
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This Stock Subscription Agreement (the "Agreement", dated 31st July,
2000, is entered into by and between Biomagnetic Technologies, Inc., a
California corporation (the "Company"), and the undersigned purchaser (the
"Purchaser").
The Company has offered for sale outside the United States (as such
sale is defined in Regulation S ("Regulation S") under the Securities Act of
1933, as amended (the "Securities Act")) to the Purchaser and others, shares of
its common stock, no par value, pursuant to Regulation S.
Capitalized terms used herein and not defined herein shall have the
meanings given to them in Regulation S.
The parties hereto agree as follows:
1. Purchase and Sale of Shares.
(a) Upon the basis of the representations and warranties, and
subject to the terms and conditions set forth in this Agreement, the Company
covenants and agrees to sell to the Purchaser on the Closing Date (as
hereinafter defined), the number of shares of its common stock, no par value,
set forth on the signature page hereof (the "Shares"), at a price equal to $0.50
per share (the "Purchase Price"), and upon the basis of the representations and
warranties, and subject to the terms and conditions, set forth in this
Agreement, the Purchaser covenants and agrees to purchase from the Company on
the Closing Date the Shares at the Purchase Price.
(b) The Shares that the Purchaser has agreed to purchase from
the Company on the Closing Date at the Purchase Price of $0.50 per share are
currently authorized shares of the Company's Common Stock. Subsequent to the
Closing Date, the Company may, subject to the approval of its shareholders,
effectuate a 1-for-10 reverse stock split or such other adjustment as deemed
appropriate by the Company's board of directors and shareholders by amending the
Company's articles of incorporation.
2. Closing. The closing of the purchase and sale of the Shares pursuant
to Section 1 hereof (the "Closing") shall take place on or before September 21,
1995, at the offices of the Company, located at o (such time and date for the
closing, the "Closing Date"). The certificates representing the Shares to be
purchased by the Purchaser shall be delivered by, or on behalf of, the Company
at the above-mentioned offices, against payment of the Purchase Price therefor
in immediately available funds by, or on behalf of, the Purchaser to the
Company's account (No. 422709) at Bank Julius Baer & Co., Ltd., New York Branch,
330 Madison Avenue, New York, NY 10017 or as otherwise instructed by the
Company. Delivery of such shares shall be in accordance with the instructions of
the Purchaser, and in such names as the Purchaser shall instruct, subject to
customary settlement procedures.
<PAGE>
3. Representations and Warranties and Covenants of the Company. The
Company represents and warrants to, and agrees with, the Purchaser that:
(a) Organization and Qualification. Each of the Company and
Biomagnetic Technologies GmbH, a corporation organized under the laws of Germany
(the "Subsidiary"), is a corporation duly organized, validly existing and in
good standing under the laws of its jurisdiction of incorporation and has full
corporate power and authority to conduct its business as and to the extent now
conducted and to own, use and lease its assets and properties. Each of the
Company and its Subsidiary is duly qualified, licensed or admitted to do
business and is in good standing in each jurisdiction in which the ownership,
use or leasing of its assets and properties, or the conduct or nature of its
business, makes such qualification, licensing or admission necessary, except for
such failures to be so qualified, licensed or admitted and in good standing
which, individually or in the aggregate, (i) are not having and could not be
reasonably expected to have a material adverse effect on the Company and its
Subsidiary taken as a whole, and (ii) could not be reasonably expected to have a
material adverse effect on the validity or enforceability of this Agreement or
on the ability of the Company to perform its obligations hereunder. Except for
the Subsidiary and Magnesensors Inc., the Company does not directly or
indirectly own any equity or similar interest in, or any interest convertible
into or exchangeable or exercisable for, any equity or similar interest in, any
corporation, partnership, joint venture or other business association or entity.
(b) Absence of Certain Changes or Events. Except as disclosed
herein or in the Company SEC Reports (as defined in Section 3(f)) filed prior to
the date of this Agreement and except that in March 1997, the Company's common
stock was delisted from the NASDAQ National Market and now is quoted on the
National Association of Securities Dealers, Inc.'s OTC Bulletin Board, (a) since
December 31, 1997, there has not been any change, event or development having,
or that could be reasonably expected to have, individually or in the aggregate,
a material adverse effect on the Company and its Subsidiary taken as a whole and
(b) between such date and the date hereof, the Company and its Subsidiary have
conducted their respective businesses only in the ordinary course consistent
with past practice.
(c) Validity of the Agreement. This Agreement has been duly
authorized, executed and delivered by the Company and is a valid and binding
agreement enforceable in accordance with its terms, subject to bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium and similar laws of
general applicability relating to or affecting creditors' rights generally and
to general principles of equity; and the Company has full corporate power and
authority necessary to enter into this Agreement and to perform its obligations
hereunder.
(d) The Shares. The Shares have been duly and validly
authorized and on the Closing Date will be duly and validly issued, fully paid
and nonassessable.
(e) Reporting Company. The Company is a reporting company and
has filed all reports required to be filed by Section 13(a) or 15(d) of the
Securities Exchange Act of 1934, as amended (the "Exchange Act") during the
preceding 12 months and has been subject to such filing requirements for the
past 90 days. Its common stock is quoted on the National Association of
Securities Dealers, Inc.'s OTC Bulletin Board.
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(f) SEC Reports and Financial Statements. The Company
delivered to the Purchaser prior to the execution of this Agreement a true and
complete copy of each form, report, schedule, registration statement, definitive
proxy statement and other document (together with all amendments thereof and
supplements thereto) filed by the Company or its Subsidiary with the Securities
and Exchange Commission (the "SEC") since September 30, 1995 (as such documents
have since the time of their filing been amended or supplemented, the "Company
EC Reports"), which are all the documents (other than preliminary material) that
the Company and its Subsidiary were required to file with the SEC since such
date.
(g) Regulation S (all capitalized terms not defined herein
shall have the meanings given to them in Regulation S).
(i) The sale of the Shares pursuant to this Agreement
will be made in accordance with the provisions and requirements of
Regulation S and any applicable state law.
(ii) The Company has not offered the Shares to any
Person in the United States or to any identifiable groups of U.S.
citizens abroad or to any U.S. Person.
(iii) No offer to buy the Shares was made to the
Company by any Person in the United States or by any U.S. Person.
(iv) None of the Company, its Subsidiary, or any
Representative has engaged, or will engage, in any Directed Selling
Efforts with respect to the Shares.
(v) The transactions contemplated by this Agreement
(A) have not been pre-arranged by the Company with a purchaser which is
in the United States or is a U.S. Person; and (B) are not part of a
plan or scheme of the Company to evade the registration provisions of
the Securities Act.
(vi) The Company has not issued, and after the
Closing Date will not issue, any stop transfer order or other order
impeding the sale and delivery of the Shares except for a stop order
restricting the sale of the Shares into the United States or to, or for
the account or benefit of, U.S. Persons during the Restricted Period
(as hereinafter defined); provided, however, that in the event that the
SEC promulgates any revision to, or issues any release reinterpreting,
Regulation S which affects this Agreement, the Company may issue such
stop transfer order as is necessary to comply with such revision or
release.
(vii) The Company has not offered to sell or sold any
warrants exercisable or convertible into its common stock in a
transaction involving Regulation S in the past year; and there are no
outstanding warrants exercisable or convertible into its common stock
which have been sold in a transaction involving Regulation S.
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4. Representations and Warranties and Covenants of the Purchaser. The
Purchaser understands, and represents and warrants to, and agrees with, the
Company, that:
(a) The Purchaser understands that no federal or state agency
has passed on or made any recommendation or endorsement of the Shares.
(b) The Purchaser acknowledges that, in making the decision to
purchase the Shares, it has relied solely upon independent investigations made
by it and not upon any representations made by the Company with respect to the
Company or the Shares. The Purchaser acknowledges that it is a sophisticated
investor and that an investment of the Shares involves a high degree of risk.
The Purchaser further acknowledges that the Purchase Price may or may not exceed
the latest publicly quoted per share "asked" price of the Company's common
stock.
(c) The Purchaser acknowledges that the Company is relying
upon the truth and accuracy of the representations, warranties and covenants of
the Purchaser made herein in selling the Shares hereunder without registration
and in reliance upon Regulation S promulgated under the Securities Act. The
Purchaser is familiar with Regulation S and has consulted with legal counsel
familiar with Regulation S in connection with this transaction.
(d) The Purchaser is not a U.S. Person (as defined in
Regulation S) or an affiliate of the Company, and is not acquiring the
securities for the account or benefit of any U.S. person.
(e) No offer of the Shares was made to the Purchaser in the
United States.
(f) At the time the offer and buy orders for the Shares were
originated, including, without limitation, at the time the Purchaser executed
and delivered this Agreement and otherwise subscribed for or agreed to purchase
the Shares, the Purchaser was located outside the United States.
(g) None of the Purchaser, any affiliate of the Purchaser, or
any Person acting on behalf of the Purchaser or any such affiliate has engaged,
or will engage, in any Directed Selling Efforts with respect to the Shares; and
the Purchaser and its affiliates have complied, and will comply, with the
Offering Restrictions (as defined in Regulation S), and any other requirements,
of Regulation S.
(h) The Purchaser is aware that the Shares have not been and
will not be registered under the Securities Act and may only be offered or sold
pursuant to registration under the Securities Act or an available exemption
therefrom.
(i) The Purchaser:
(A) will not, during the period commencing on the
Closing Date and ending one year after the Closing Date (the
"Restricted Period"), offer or sell the Shares in the United States, to
a U.S. Person or for the account or benefit of a U.S. Person or other
than in accordance with the provisions of Regulation S (ss. 230.901
through ss. 230.905, and Preliminary Notes);
(B) will, after the expiration of the Restricted
Period, offer, sell, pledge or otherwise transfer the Shares only
pursuant to registration under the
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Securities Act or an available exemption therefrom and, in any case,
in accordance with applicable state securities laws; and
(C) at all times agrees not to engage in hedging
transactions with regard to such securities unless in compliance with
the Securities Act.
(j) If the Purchaser offers and sells the Shares during the
Restricted Period, then it will do so only in accordance with the provisions of
Regulation S, pursuant to registration of the Shares under the Securities Act,
or pursuant to an available exemption from the registration requirements of the
Securities Act.
(k) The transactions contemplated by this Agreement:
(A) have not been pre-arranged with a purchaser who
is located in the United States or is a U.S. Person; and
(B) are not part of a plan or scheme or evade the
registration provisions of the Securities Act.
(l) The Purchaser is purchasing the Shares for its own account
for the purpose of investment and not (A) with a view to, or for sale in
connection with, any distribution thereof or (B) for the account or on behalf of
any U.S. Person. The Purchaser understands, acknowledges and agrees that it must
bear the economic risk of its investment in the Shares for an indefinite period
of time and that prior to any offer or sale of such securities, the Company may
require, as a condition to effecting a transfer of the Shares, an opinion of
counsel to Purchaser, acceptable to the Company, as to the registration or
exemption therefrom under the Securities Act.
(m) The Purchaser was not formed specifically for the purpose
of acquiring the Shares purchased pursuant to this Agreement, and if a
corporation, all corporate action on its part, necessary for the authorization,
execution, delivery and performance of the Purchaser's obligations under this
Agreement has been or shall be taken prior to the closing of this transaction,
and this Agreement, when executed and delivered, shall constitute a valid and
legally binding obligation of the Purchaser enforceable against the Purchaser in
accordance with its terms.
(n) If the purchaser is a corporation or trust or other
entity, the officer or trustee or other person executing this Agreement
represents and warrants that he or she is duly authorized to so sign this
Agreement and to consummate the transactions contemplated hereby and that the
Purchaser is authorized by its governing documents to make this investment. The
Purchaser has such knowledge and experience in financial and business matters
that it is capable of evaluating the merits and risks of an investment in the
Shares, and it is able to bear the economic risk of losing up to the entire
amount of its investment therein.
(o) Neither the Purchaser nor any of its affiliates directly
or indirectly have within the past ninety (90) days nor will such persons for a
period of one year from the Closing directly or indirectly enter into any short
selling of any equity security of the Company (including, without limitation,
the common stock of the Company) or any hedging transaction with respect to any
equity security of the Company, including without limitation, puts, calls, or
other option transactions, option writing and equity swaps, unless in compliance
with the Securities Act.
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(p) Purchaser understands and agrees that each certificate or
other document evidencing any of the Shares shall be endorsed with the legends
set forth below, and the Purchaser covenants that the Purchaser shall not
transfer the shares represented by any such certificate without complying with
the restrictions on transfer described in the legends endorsed on such
certificate and understands that the Company shall refuse to register any
transfer of Shares not complying with the following legend:
(i) "THE SECURITIES REPRESENTED BY THIS CERTIFICATE
HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (the "SECURITIES ACT"), AND HAVE
BEEN SOLD IN RELIANCE ON THE EXEMPTION FROM
REGISTRATION PROVIDED BY REGULATION S UNDER THE
SECURITIES ACT ("REGULATION S"). THE SECURITIES
REPRESENTED BY THIS CERTIFICATE MAY NOT BE OFFERED OR
SOLD, DIRECTLY OR INDIRECTLY, EXCEPT IN ACCORDANCE
WITH THE PROVISIONS OF REGULATIONS S (ss. 230.901
THROUGH ss. 230.905, AND PRELIMINARY NOTES), PURSUANT
TO REGISTRATION UNDER THE SECURITIES ACT OR
COMPLIANCE WITH RULE 144 PROMULGATED UNDER THE
SECURITIES ACT OR ANOTHER AVAILABLE EXEMPTION
THEREFROM, OR UNLESS THE COMPANY HAS RECEIVED AN
OPINION OF COUNSEL, REASONABLY SATISFACTORY TO THE
COMPANY AND ITS COUNSEL, THAT SUCH REGISTRATION IS
NOT REQUIRED."
(ii) "THE SHARES REPRESENTED HEREBY ARE SUBJECT TO
THE RESTRICTIONS ON TRANSFER CONTAINED IN A CERTAIN
OFFSHORE STOCK SUBSCRIPTION AGREEMENT, AS AMENDED
FROM TIME TO TIME. THE COMPANY WILL UPON WRITTEN
REQUEST FURNISH A COPY OF SUCH AGREEMENT TO THE
HOLDER HEREOF WITHOUT CHARGE."
(iii) Any other legend required by law.
(q) Purchaser represents that, on the basis of any actions and
agreements by it, except as expressly agreed to in writing by the Company, there
are no brokers or finders entitled to compensation in connection with the sale
of the Shares to the Purchasers.
(r) Purchaser understands that as a result of the purchase of
the Shares hereunder, Purchaser may be subject to certain reporting
requirements, including without limitation, the filing of reports pursuant to
Rule 13d-1 of the Securities Exchange Act of 1934, immediately following the
Closing. Purchaser agrees to comply with and consult with independent counsel
regarding any such obligations.
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<PAGE>
(s) Purchaser understands and agrees that pursuant to
Regulation S, each distributor selling securities to a distributor, a dealer (as
defined in section 2(a)(12) of the Securities Act), or a person receiving a
selling concession, fee or other remuneration in respect of the securities sold,
prior to the expiration of a one-year distribution compliance period, must send
a conformation or other notice to the purchaser stating that the purchaser is
subject to the same restrictions on offers and sales that apply to a
distributor.
(t) Purchaser has received and reviewed the capitalization and
option vesting table attached hereto as Schedule A, updated as of May 15, 1998,
and incorporated herein by this reference.
5. Additional Covenants of the Company. The Company covenants and
agrees with the Purchaser as follows:
(a) Regulation S. The Company shall:
(i) continue to comply with all applicable reporting
requirements of this Exchange Act;
(ii) refrain from offering to sell or selling any
shares of common stock, or warrants or other securities convertible
into its common stock, in a transaction involving Regulation S for a
period of 180 days following the Closing Date;
(iii) ensure that all Offering Restrictions
applicable to the sale of Shares pursuant to this Agreement are
thoroughly implemented, complied with and satisfied; and
(iv) refrain from engaging in any Directed Selling
Efforts with respect to the Shares.
(b) Ordinary Course. Until the Closing, the Company and its
Subsidiary shall conduct their respective businesses only in, and neither the
Company nor its Subsidiary shall take any action except in the ordinary course
consistent with past practice.
6. Additional Covenants of the Purchaser. The Purchaser covenants and
agrees that at all times prior to the Closing and thereafter, the Purchaser will
hold, and will use its best efforts to cause its Representatives to hold, in
strict confidence, unless (i) compelled to disclose by judicial or
administrative process or by other requirements of applicable Laws of
Governmental or Regulatory Authorities (including, without limitation, in
connection with obtaining the necessary approvals of this Agreement or the
transactions contemplated hereby of Governmental or Regulatory Authorities), or
(ii) disclosed in an action or proceeding brought by a party hereto in pursuit
of its rights or in the exercise of its remedies hereunder, all documents and
information concerning trade secrets of the Company and its Subsidiary furnished
to it by the Company or its Representatives in connection with this Agreement or
the transactions contemplated hereby, except to the extent that such documents
or information can be shown to have been (A) previously known by the Purchaser
or its Representatives, (B) in the public domain (either prior to or after the
furnishing of such documents or information hereunder) through no fault of the
Purchaser and its Representatives or (C) later acquired by the Purchaser or its
Representatives from another source, provided that such source is under no
obligation to keep such documents and
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<PAGE>
information confidential. In the event that this Agreement is terminated without
the transactions contemplated hereby having been consummated, upon the request
of the Company, the Purchaser will, and will cause its Representatives to,
promptly (and in no event later than five (5) days after such request) redeliver
or cause to be redelivered all copies of such documents and information
furnished by the Company or its Representatives to the Purchaser and its
Representatives in connection with this Agreement or the transactions
contemplated hereby and destroy or cause to be destroyed all notes, memoranda,
summaries, analyses, compilations and other writings related thereto or based
thereon prepared by the Purchaser or its Representatives.
7. Fees and Expenses. Except as set forth in Section 12(b), each of the
Purchaser and the Company agrees to pay its own expenses incident to the
performance of its obligations hereunder, including, but not limited to, the
fees, expenses and disbursements of such party's counsel.
8. Definitions. As used in this Agreement, the following defined terms
shall have the meanings indicated below:
(a) "Governmental or Regulatory Authority" means any court,
tribunal, arbitrator, authority, agency, commission, official or other
instrumentality of the United States, any foreign country or any state, county,
city or other political subdivision.
(b) "Law" means all laws, statutes, rules, regulations,
ordinances and other pronouncements having the effect of law of the United
States, any foreign country or any domestic or foreign state, county, city or
other political subdivision or of any Governmental or Regulatory Authority.
(c) "Lien" means any lien, claim, mortgage, encumbrance,
pledge, security interest, equity or charge of any kind.
(d) "Person" means any natural person, corporation, general
partnership, limited partnership, proprietorship, other business organization,
trust, union, association or Governmental or Regulatory Authority.
(e) "Representative" means any officer, director, employee,
investment banker, financial advisor, attorney, accountant, agent or other
Person retained by or acting for or on behalf of the Company or its Subsidiary
or the Purchaser.
9. Indemnification.
(a) In the event the Purchaser becomes involved in any
capacity in any action, proceeding or investigation in connection with any
matter referred to or relating to this Agreement (except as expressly provided
for in paragraph (c) or this Section 9), the Company will reimburse the
Purchaser for its reasonable legal and other expenses (including the cost of any
investigation and preparation) incurred in connection therewith, as such
expenses are incurred, and will indemnify and hold the Purchaser harmless from
and against any losses, claims, damages or liabilities to which it may become
subject in connection with any such action, proceeding, investigation or matter,
unless such expenses, loss, claim, damage or liability results primarily from
the Purchaser's gross negligence, recklessness or bad faith in connection with
the subject of this Agreement.
8
<PAGE>
(b) In the event that the Company becomes involved in any
capacity to any action, proceeding or investigation in connection with any
matter referred to or relating to this Agreement (except as expressly provided
for in paragraph (c) of this Section 9), the Purchaser will reimburse the
Company for its reasonable legal and other expenses (including the cost of any
investigation and preparation) incurred in connection therewith, as such
expenses are incurred, and will indemnify and hold the Company harmless from and
against any losses, claims, damages or liabilities to which it may become
subject in connection with any such action, proceeding, investigation or matter,
to the extent, but only to the extent, that such loss, claim, damage or
liability results primarily from the Purchaser's gross negligence, recklessness
or bad faith in connection with the subject of this Agreement.
(c) Promptly after receipt by an indemnified party under this
Section 9 of notice of the commencement of any action, such indemnified party
shall notify the indemnifying party in writing of the commencement thereof; but
the omission to so notify the indemnifying party shall not relieve the
indemnifying party from any liability which it may have pursuant to this Section
9 unless, due to the failure to be so notified, the indemnifying party is unable
to contest the losses or claims indemnified against, and such omission shall in
no event relieve the indemnifying party from any liability which it may have to
any indemnified party otherwise than under this Section 9. In case any such
action shall be brought against any indemnified party and it shall notify the
indemnifying party of the commencement thereof, the indemnifying party shall be
entitled to participate therein and, to the extent that it may elect by written
notice delivered to such indemnified party promptly after receiving the
aforesaid notice from such indemnified party, to assume the defense thereof with
counsel reasonably satisfactory to such indemnified party (who shall not, except
with the consent of the indemnified party, which consent shall not be
unreasonably withheld, be counsel to the indemnifying party); provided, however,
that if the defendants in any such action include both the indemnified party and
the indemnifying party and the indemnified party shall have reasonably concluded
that there may be legal defenses available to it and/or other indemnified
parties which are different from or additional to those available to the
indemnifying party, the indemnified party or parties shall have the right to
select separate counsel to assert such legal defenses and otherwise to
participate in the defense of such action on behalf of such indemnified party or
parties. Upon receipt of notice from the indemnifying party to such indemnified
party of its election so to assume the defense of such action and approval by
the indemnified party of counsel, the indemnifying party will not be liable to
such indemnified party under this Section 9 for any legal or other expenses
subsequently incurred by such indemnified party in connection with the defense
thereof unless (i) the indemnified party shall have employed separate counsel in
connection with the assertion of legal defenses in accordance with the proviso
to the next preceding sentence (it being understood, however, that the
indemnifying party shall not be liable for the expenses of more than one
separate counsel for each indemnified party, (ii) the indemnifying party shall
not have employed counsel reasonably satisfactory to the indemnified party to
represent the indemnified party within a reasonable time after notice of
commencement of the action or (iii) the indemnifying party has authorized the
employment of counsel for the indemnified party at the expense of the
indemnifying party; provided further, however, that , if clause (i) or (ii) is
applicable, such liability shall be only in respect of the counsel referred to
in such clauses (i) or (iii).
10. Survival of the Representations, Warranties, etc. The respective
agreements, representations, warranties, indemnities and other statements made
by or on behalf of the Company and the Purchase, respectively, pursuant to this
Agreement, shall remain in full
9
<PAGE>
force and effect, regardless of any investigation made by or on behalf of the
other party to this Agreement or any officer, director or employee of, or Person
controlling or under common control with, such party and will survive delivery
of and payment for the Shares.
11. Notices. All communications hereunder shall be in writing, and, if
sent to the Purchaser shall be sufficient in all respects if delivered, sent by
registered United States mail, or by telecopy and confirmed to the Purchaser at:
The address or telecopier number shown on the counterpart
signature page of this Agreement:
or, if sent to the Company, shall be delivered, sent by registered United States
mail or by telecopy and confirmed to the Company at:
Mr. D. Scott Buchanan
President and CEO
Biomagnetic Technologies, Inc.
9727 Pacific Heights Boulevard
San Diego, CA 92121
Telecopy: (619) 458-5698
12. Termination.
(a) This Agreement may be terminated, and the transactions
contemplated hereby may be abandoned:
(i) at any time before the Closing, by mutual written
agreement of Company and the Purchaser;
(ii) at any time before the Closing, by the Company
or the Purchaser, in the event (A) of a material breach hereof by the
non-terminating party if such non-terminating party fails to cure such
breach within ten (10) business days following notification thereof by
the terminating party or (B) 10 business days after notification of the
non-terminating party's obligations under this Agreement becomes
impossible or impracticable with the use of commercially reasonable
efforts if the failure of such condition to be satisfied is not caused
by a breach hereof by the terminating party; provide, that the other
party may within such ten (10) business days sure by satisfying or
demonstrating the satisfiability of such condition; or
(iii) at any time after September 21, 1998 by the
Company.
(b) If this Agreement is validly terminated pursuant to
Section 12(a), this Agreement will forthwith become null and void, and there
will be no liability or obligation on the part of Company or the Purchaser (or
any of their respective officers, directors, employees, agents or other
representatives or affiliates), except as provided in the next succeeding
sentence and except that the provision with respect to confidentiality in
Section 6 and expenses in Section 7 will continue to apply following any such
termination. Notwithstanding any other provision in this Agreement to the
contrary, upon termination of this Agreement pursuant to Section 12(a), the
Company will remain liable to the Purchaser for any breach of this Agreement by
the Company existing at the time of such termination,
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<PAGE>
and the Purchaser will remain liable to the Company for any breach of this
Agreement by the Company existing at the time of such termination, and the
Purchaser will remain liable to the Company for any breach of this Agreement by
the Purchaser existing at the time of such termination, and the Company or the
Purchaser may seek such remedies, including damages and fees of attorneys,
against the other with respect to any such breach as are provided in this
Agreement or as are otherwise available at Law or in equity.
13. Miscellaneous.
(a) This Agreement may be executed in one or more counterparts
and it is not necessary that signatures of all parties appear on the same
counterpart, but such counterparts together shall constitute but one and the
same agreement.
(b) This Agreement shall inure to the benefit of and be
binding upon the parties hereto, their respective successors and, with respect
to Section 9 hereof, the officers, directors and controlling Persons thereof and
each Person under common control therewith, and no other Person shall have any
right or obligation hereunder.
(c) This Agreement shall be governed by, and construed in
accordance with, the laws of the State of California and the United States,
without regard to conflicts of law principles.
(d) The headings of the sections of this document have been
inserted for convenience of reference only and shall not be deemed to be a part
of this Agreement.
(e) The Company may reject this subscription, or any
subscription for any reason or no reason, in its absolute discretion and without
incurring any liability to Purchaser.
(f) This Agreement states and comprises the entire agreement
between the parties and shall supersede and replace any and all prior agreements
between the parties and may be amended only by written instrument signed by both
parties.
(g) If any provision of this Agreement shall be judicially
determined to be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected or
impaired thereby.
(h) Each party to this Agreement shall use its best efforts to
cause the Closing to occur and shall do and perform or cause to be done and
performed all such further acts and things and shall execute and deliver all
such other agreements, certificates, instruments and documents as the other
party hereto may reasonably request in order to carry out the intent and
accomplish the purposes of this Agreement and the consummation of the
transactions contemplated hereby.
(i) All references to "dollars" or "S" in this Agreement shall
be deemed to refer to United States dollars.
(j) If any action at law or in equity is necessary to enforce
or interpret the terms of this Agreement, the prevailing party shall be entitled
to reasonable attorneys' fees, costs and necessary disbursements in addition to
any other relief to which party may be entitled.
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IN WITNESS WHEREOF, the parties hereto have duly executed and delivered
this Agreement, all as of the day and year first above written.
BIOMAGNETIC TECHNOLOGIES, INC.
By:
---------------------------
D. Scott Buchanan
President and CEO
PURCHASER:
CAJA DE AHORROS Y PENSIONES DE BARCELONA
--------------------------------------------------------------------------------
Print name of Purchaser. If a corporation, the appropriate officer or officers
must sign.
Ten Million Shares (10,000,000 Shares)
--------------------------------------------------------------------------------
Number of Shares (of the Company's common stock, no par value) subscribed for
Avenida Diagonal, 621-629 08028 Barcelona (SPAIN)
--------------------------------------------------------------------------------
Print name of Purchaser. If a corporation, the appropriate officer or officers
must sign.
--------------------------------------------------------------------------------
Address of Purchaser.
--------------------------------------------------------------------------------
Address of Purchaser (continued)
(34) 93.404.71.62
--------------------------------------------------------------------------------
Telephone Number of Purchaser.
(34) 93.404.63.63
--------------------------------------------------------------------------------
Telecopy Number of Purchaser.
--------------------------------------------------------------------------------
Signature(s)
--------------------------------------------------------------------------------
Print name(s) and title(s)
ANTONIO BAUFAU NIUBC
DIRECTOR GENERAL A EJECUTIVE
[SIGNATURE PAGE FOR
OFFSHORE STOCK SUBSCRIPTION AGREEMENT]
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Exhibit 2
English language summary of July 31, 2000 share transfer
The Board of Directors meeting of Caja de Ahorros y Pensiones de Barcelona, "La
Caixa", held on May 25, 2000 passed the resolution to create a new holding
company within "La Caixa" Group which shall hold the direct stake of "La Caixa"
in certain Spanish and foreign companies, including 4-D Neuroimaging, Inc.,
which constitute a material portion of the portfolio of "La Caixa".
The new holding company, Caixa Holding, S.A., received on July 31, 2000 the
aforementioned stakes by means of a contribution in kind made by "La Caixa". In
exchange for the said contribution, "La Caixa" received 2,625,000,000 newly
issued shares of Caixa Holding, S.A.
The contribution of the shares of 4-D Neuroimaging, Inc. from "La Caixa" to
Caixa Holding, S.A. was formalized on July 31, 2000 by virtue of a public deed
granted before the Notary Public of Barcelona Mr Tomas Gimenez Duart.
