EXHIBIT 10.58
THE SECURITIES REFERRED TO HEREIN HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED, NOR QUALIFIED UNDER ANY STATE SECURITIES LAW IN
RELIANCE UPON EXEMPTIONS THEREFROM. THE SECURITIES MAY BE ACQUIRED FOR
INVESTMENT PURPOSES ONLY AND NOT WITH A VIEW TO DISTRIBUTION OR RESALE, AND MAY
NOT BE SOLD, MORTGAGED, PLEDGED, HYPOTHECATED OR OTHERWISE TRANSFERRED OR
OFFERED TO BE SO TRANSFERRED WITHOUT AN EFFECTIVE REGISTRATION STATEMENT FOR
SUCH SECURITIES UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND QUALIFICATION
UNDER APPLICABLE STATE SECURITIES LAWS, OR AN OPINION OF COUNSEL SATISFACTORY TO
THE COMPANY THAT SUCH TRANSACTION SHALL NOT VIOLATE ANY FEDERAL OR STATE
SECURITIES LAWS.
STOCK PURCHASE AGREEMENT
This STOCK PURCHASE AGREEMENT ("Agreement") is dated _____, 2003
between the purchaser identified on the signature page hereto or any assignee of
such person that is a partner or affiliate of such person ("Purchaser"), and
HiEnergy Technologies, Inc., a Delaware corporation ("Company").
1. PURCHASE AND SALE. Purchaser agrees to buy and the Company agrees to sell and
issue to Purchaser for an aggregate purchase price of $___ (the "Purchase
Price") (a) ___ shares of the Company's authorized and previously unissued
common stock, par value $0.001 per share (the "Shares") and (b) a warrant to
purchase ___ shares of the Company's authorized and previously unissued common
stock, par value $0.001 per share, at a purchase price of $___ per share (the
"Warrant") for a term ending three and one-half years after effectiveness of the
registration statement described in Section 5. The Shares, Warrant, and any
shares of common stock issuable upon exercise of the Warrant, are herein
collectively called the "Securities."
2. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company hereby makes the
following representations and warranties to the Purchaser:
(A) ORGANIZATION AND QUALIFICATION. The Company is a corporation duly
incorporated, validly existing and in good standing under the laws of
the State of Delaware with the requisite corporate power and authority
to own and use its properties and assets and to carry on its business
as currently conducted. The Company is duly qualified to conduct
business and is in good standing as a foreign corporation or other
entity in each jurisdiction in which the nature of the business
conducted or property owned by it makes such qualification necessary.
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(B) AUTHORIZATION. The Company has the requisite corporate power and
authority to enter into and to consummate the transactions contemplated
by this Agreement and otherwise to carry out its obligations hereunder.
The execution and delivery of this Agreement by the Company and the
consummation of the transaction contemplated hereby have been duly
authorized by all necessary action on the part of the Company, the
undersigned is duly authorized to execute this Agreement on behalf of
the Company, and no further action is required by the Company or its
shareholders for the Company to execute and consummate this Agreement
and the transactions contemplated hereby. This Agreement has been duly
executed by the Company and, when delivered in accordance with the
terms hereof, and assuming the valid execution hereof by the Purchaser,
will constitute the valid and binding obligation of the Company
enforceable against the Company in accordance with its terms, except
(a) as such enforceability may be limited by bankruptcy, insolvency,
reorganization or similar laws affecting creditors' rights generally,
(b) as enforceability of any indemnification and contribution
provisions may be limited under the federal and state securities laws
and public policy, and (c) that the remedy of specific performance and
injunctive and other forms of equitable relief may be subject to
equitable defenses and to the discretion of the court before which any
proceeding therefor may be brought.
(C) NO CONFLICTS. The execution, delivery and performance of this
Agreement by the Company and the consummation by the Company of the
transactions contemplated hereby does not and will not: (i) conflict
with or violate any provision of the Company's certificate of
incorporation or bylaws (each as amended through the date hereof), or
(ii) conflict with, or constitute a default (or an event which with
notice or lapse of time or both would become a default) under, or give
to others any rights of termination, amendment or acceleration (with or
without notice, lapse of time or both) of, any material agreement or
indebtedness to which the Company is a party or by which any material
property or asset of the Company is bound or affected, or (iii) result
in a violation of any law, rule, regulation, order, judgment, decree or
other restriction of any court, governmental authority or stock market
to which the Company or the Common Stock is subject.
(D) ISSUANCE OF THE SECURITIES. The Shares and the Warrant are duly
authorized and, when issued and paid for in accordance with the terms
hereof, will be legally issued, fully paid and nonassessable, free and
clear of all liens and encumbrances (other than any that are the result
of any action or inaction of the Purchaser). The shares issuable upon
exercise of the Warrant, when paid for in accordance with the terms of
the Warrant, will be legally issued, fully paid and nonassessable, free
and clear of all liens and encumbrances (other than any that are the
result of any action or inaction of the Purchaser).
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3. REPRESENTATIONS AND WARRANTIES OF THE PURCHASER. The Purchaser hereby
represents and warrants to the Company as follows:
(A) VALIDITY. Upon the execution and delivery of this Agreement, and
assuming the valid execution thereof by the Company, this Agreement
shall constitute the valid and binding obligation of the Purchaser,
enforceable against the Purchaser in accordance with its terms, except
(a) as such enforceability may be limited by bankruptcy, insolvency,
reorganization or similar laws affecting creditors' rights generally,
(b) as enforceability of any indemnification and contribution
provisions may be limited under the federal and state securities laws
and public policy, and (c) that the remedy of specific performance and
injunctive and other forms of equitable relief may be subject to
equitable defenses and to the discretion of the court before which any
proceeding therefor may be brought.
(B) NO CONFLICTS. The execution, delivery and performance of this
Agreement by the Purchaser and the consummation by the Purchaser of the
transactions contemplated hereby does not and will not (i) conflict
with or violate any provision of the Purchaser's or Company's
certificate of incorporation or bylaws (each as amended through the
date hereof), or (ii) conflict with, or constitute a default (or an
event which with notice or lapse of time or both would become a
default) under, or give to others any rights of termination, amendment
or acceleration (with or without notice, lapse of time or both) of, any
material agreement or indebtedness to which the Purchaser is a party or
by which any material property or asset of the Purchaser is bound or
affected, or (iii) result in a violation of any order, judgment or
decree of any court to which the Purchaser is subject.
(C) INVESTMENT REPRESENTATIONS.
(i) The Purchaser is capable of bearing the economic risks of
this investment, including the possible loss of the entire
investment;
(ii) The Securities are being acquired for investment only and
for the Purchaser's own account and not with a view to, or for
sale in connection with, the distribution thereof, nor with
any present intention of distributing or selling any of the
Securities;
(iii) The Purchaser understands that the Securities have not
been qualified under the Delaware Securities Act, as amended,
(the "Law") or any other applicable state securities laws and
that the Securities have not been registered under the
Securities Act of 1933, as amended, (the "Act"), and are being
offered and sold pursuant to exemptions thereunder, and that
in this connection the Company is relying on the Purchaser's
representations set forth in this Stock Purchase Agreement;
(iv) The Purchaser understands and agrees that the Securities
may not be offered or transferred in any manner unless (i) the
Securities are subsequently registered under the Act and any
applicable state securities laws, or (ii) an opinion of
counsel satisfactory to the Company has been rendered stating
that such offer or transfer will not violate any applicable
federal or state securities laws;
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(v) The Purchaser understands and agrees that in addition to
any other restrictive legend which may be imposed on the
certificates, the certificates evidencing said Securities will
bear substantially the following legend or a similar legend:
THE SECURITIES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED, AND MAY NOT BE SOLD,
TRANSFERRED, ASSIGNED OR HYPOTHECATED UNLESS PURSUANT TO SEC
RULE 144 (IF AVAILABLE) OR THERE IS AN EFFECTIVE REGISTRATION
STATEMENT UNDER THE 1933 ACT COVERING SUCH SECURITIES OR THE
COMPANY RECEIVES AN OPINION OF COUNSEL FOR THE HOLDER OF THESE
SECURITIES REASONABLY SATISFACTORY TO THE COMPANY, STATING
THAT SUCH SALE, TRANSFER, ASSIGNMENT OR HYPOTHECATION IS
EXEMPT FROM THE REGISTRATION AND PROSPECTUS DELIVERY
REQUIREMENTS OF THE 1933 ACT.
(vi) The Purchaser is an Accredited Investor as defined in
Regulation D under the Act;
(vii) By executing this Stock Purchase Agreement, the
Purchaser hereby acknowledges receipt of all such information
as the Purchaser deems necessary and appropriate to enable the
Purchaser to evaluate the merits and risks in acquiring the
Securities. The Purchaser acknowledges receipt of satisfactory
and complete information covering the business and financial
condition of the Company, including the opportunity to obtain
information regarding the Company's financial status, in
response to all inquiries in respect thereof. The Purchaser
has such knowledge and experience in financial and business
matters that he is capable of evaluating the merits and risks
of acquiring the Securities and the capacity of protecting its
own interests in the transaction;
(viii) The Purchaser has been furnished with the materials
relating to the Company and the offering of the Securities
which he has requested, and has been afforded the opportunity
to make inquiries concerning the Company and such matters as
the Purchaser has deemed necessary, and has further been
afforded the opportunity to obtain any additional information
required by the Purchaser to the extent the Company possesses
such information or could acquire it without unreasonable
effort or expense;
(ix) The Purchaser has substantial means of providing for its
current needs and contingencies and has no need for liquidity
in this investment;
(x) The Purchaser has determined that the Securities are a
suitable investment for it and that it could bear a complete
loss of its entire investment;
(xi) The Purchaser has relied on its own tax and legal advisor
and its own investment counselor with respect to the income
tax and investment considerations of a purchase of the
Securities;
(xii) The Purchaser did not learn of the offering described
herein through any general advertising or other literature,
and it has relied only on the information furnished or made
available to them by the Company described above;
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(xiii) No representations or warranties have been made to the
Purchaser by the Company, its officers, directors or
shareholders or any persons acting on behalf of the Company,
or any affiliates of any of them, other than the
representations set forth herein; and
(xiv) The foregoing representations, warranties and agreements
of the Purchaser shall survive the sale and issuance of the
Securities to the Purchaser.
4. PAYMENT. The parties are entering into the Escrow Agreement attached as
Exhibit A (the "Escrow Agreement"), and the Purchaser will wire funds prior to
the Closing Day to the Escrow Agent, as defined in the Escrow Agreement. The
Seller shall notify its transfer agent within one (1) Trading Day thereafter to
deliver the Shares to the Purchaser. On the Closing Day: (x) the Company will
deliver or cause to be delivered to the Purchaser a Warrant and a duly executed
stock certificate representing the number of Shares set forth herein; and (y)
the Escrow Agent will deliver to the Company an amount in United States dollars
equal to the full Purchase Price, via check or wire transfer of immediately
available funds to an account designated in writing by the Company for such
purpose less any out-of-pocket costs.
5. REGISTRATION RIGHTS. The Company shall cause within a reasonable time, in any
case not later than January 15, 2004, the preparation and filing of a
Registration Statement on Form SB-2 that includes the Shares and the shares of
Common Stock issuable upon exercise of the Warrant. If the Holder continues to
hold the Shares, the Company will pay Holder in arrears in like kind a number of
Shares equal to one and one half percent of the Shares continued to be held by
Holder on the 15th day of the first full calendar month occurring after January
15, 2004 if the Company has not caused the shares to become registered by that
day. Thereafter the percentage shall increase by an additional one percent each
month, eg., the second month's percentage shall be 2.5%, so that on the 15th day
the Company will pay Holder in arrears in like kind a number of Shares equal to
two and one half percent of the Shares continued to be held by Holder on the
15th day of the second full calendar month. There shall be no increase if the
increase is exceeds the amount permitted by law. In addition, no such payment is
due to the extent such payment causes the total amount payable for failure to
obtain an effective registration statement to exceed the amount permitted by
law. The Issuer shall use best efforts to cause a Registration Statement on Form
SB-2 that includes the Shares to remain effective to the date all the Shares are
or may be sold at one time under Rule 144. It is the express intention of the
parties that at all times they shall comply with all applicable laws, including
usury laws. This Agreement shall automatically be modified to the extent
necessary to achieve that purpose.
6. COUNTERPARTS. This Agreement may be executed in two or more counterparts, all
of which shall be considered one and the same agreement and shall become
effective when counterparts have been signed by each party and delivered to the
other party. This Agreement, once executed by a party, may be delivered to the
other party hereto by facsimile transmission of a copy of this Agreement bearing
the signature of the party so delivering this Agreement, which shall be deemed
fully valid and binding. The parties also agree to forward promptly their
original signature on a copy of this Agreement to the other party.
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7. ENTIRE AGREEMENT. This Agreement contains the entire understanding of the
parties with respect to the matters covered herein and, except as specifically
set forth herein, neither the Company nor the Purchaser make any representation,
warranty, covenant or undertaking with respect to such matters. No provision of
this Agreement may be amended other than by an instrument in writing signed by
the Company and Purchaser.
8. SEVERABILITY. In the event that any provision of this Agreement shall be
determined to be invalid or unenforceable by any court of competent
jurisdiction, the remainder of this agreement shall not be affected thereby, and
any invalid or unenforceable provision shall be reformed so as to be valid and
enforceable to the full extent permitted by law.
9. NOTICES. Any and all notices or other communications or deliveries required
or permitted to be provided hereunder shall be in writing and shall be deemed
given and effective on the earlier of (i) the date of transmission, if such
notice or communication is delivered via facsimile at the facsimile telephone
number specified for notice prior to 5:00 p.m., eastern time, on a Trading Day,
(ii) the Trading Day after the date of transmission, if such notice or
communication is delivered via facsimile at the facsimile telephone number
specified for notice later than 5:00 p.m., eastern time, on any date and earlier
than 11:59 p.m., eastern time, on such date, (iii) the Trading Day following the
date of mailing, if sent by nationally recognized overnight courier service or
(iv) actual receipt by the party to whom such notice is required to be given.
The addresses for such communications shall be with respect to the Purchaser,
addressed to such Purchaser at his last known address or facsimile number
appearing on the books of the Issuer maintained for such purposes, with a copy
to the Purchaser's legal counsel, if designated by Purchaser, or with respect to
the Issuer, addressed to:
HiEnergy Technologies, Inc.
1601 Alton Parkway, Unit B
Irvine, California 92606
Attention: President
Tel. No.: (949) 757-0855
Fax No.: (949) 757-1477
with a copy to:
Yocca Patch & Yocca, LLP
19900 MacArthur Blvd, Suite 650
Irvine, CA 92612
Attention: Nicholas J. Yocca, Esq.
Tel No.: (949) 253-0800
Fax No.: (949) 203-8627
Any party hereto may from time to time change its and its counsel's address for
notices by giving at least ten (10) days written notice of such changed address
to the other party hereto.
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IN WITNESS WHEREOF, the parties hereto have caused this Stock Purchase
Agreement to be duly executed by their respective authorized signatories as of
the date first indicated above.
COMPANY:
HIENERGY TECHNOLOGIES, INC.
By:
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Name: Bogdan C. Maglich
Title: Chairman, Chief Executive Officer and
Treasurer
PURCHASER:
By:
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Name:
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Title:
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