EXHIBIT 4.12
------------
STOCK PURCHASE AGREEMENT
------------------------
AGREEMENT made as of this 23rd day of September 2005, by and between
American United Global, Inc. ("Seller") and _________ ("Buyer"), and for
purposes of Section 6.2 of this Agreement, Western Power & Equipment
Corporation.
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, Seller is the owner of _________ shares of the common stock
(the "Shares"), of Western Power & Equipment Corporation ("Western"), a Delaware
corporation;
WHEREAS the Shares are unregistered securities under the Securities Act
of 1933, as amended (the "Securities Act");
WHEREAS the Shares are subject to a lien by various lien holders;
WHEREAS Seller shall satisfy its obligations giving rise to the lien
upon the Shares in order to be able to transfer free and clear title to the
Shares at the time of closing of the transactions anticipated by this Agreement;
and
WHEREAS, Buyer desires to purchase from Seller and Seller desires to
sell to Buyer, the Shares upon the terms and conditions hereinafter set forth.
NOW THEREFORE, in consideration of the mutual covenants and promises
herein contained and upon the terms and conditions hereinafter set forth, the
parties hereto, intending to be legally bound, agree as follows:
1. PURCHASE AND SALE OF THE SHARES.
-------------------------------
Purchase and Sale. Upon the terms and conditions herein contained, at
the Closing (as hereinafter defined), Seller agrees to sell the Shares to Buyer
and Buyer agrees to purchase the Shares from Seller, free and clear of all
liens, claims, pledges, mortgages, restrictions, obligations, security interests
and encumbrances of any kind, nature and description.
2. CONSIDERATION.
-------------
Purchase Price. The purchase price for the Shares (the "Purchase
Price") shall be the Buyer's payment of _________ Dollars ($___) to Seller,
receipt of which is hereby acknowledged.
3. CLOSING.
-------
3.1 Time and Place of Closing. The closing of the transactions
contemplated by this Agreement (the "Closing") is taking place simultaneously
with the execution of this Agreement, at the offices of Sichenzia Xxxx Xxxxxxxx
Xxxxxxx LLP, 1065 Avenue of the Xxxxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000,
at the date first set forth above (hereinafter the "Closing Date").
3.2 Delivery by Seller. At the Closing, Seller shall deliver to
Buyer, Certificates representing the
-1-
Shares and executed Stock Power(s) or other documents satisfactory to Buyer
permitting transfer to Buyer of the Shares.
3.3 Delivery by Buyer. At the Closing, Buyer shall deliver to the
Seller the sum of _________ Dollars ($___) by wire transfer of immediately
available funds pursuant to the wire transfer instructions attached hereto as
Exhibit A.
4. REPRESENTATIONS AND WARRANTIES OF SELLER.
----------------------------------------
Seller hereby represents and warrants to Buyer as follows:
4.1 Status of Seller and Shares. At Closing, Seller shall have the
rights as that of the sole beneficial owner of the Shares, who owns the Shares,
free and clear of all mortgages, pledges, restrictions, liens, charges,
encumbrances, security interests, obligations or other claims.
5. REPRESENTATIONS, WARRANTIES AND ACKNOWLEDGEMENTS OF BUYER.
---------------------------------------------------------
Buyer hereby represents, warrants and acknowledges to Seller
as follows:
5.1 Investment Purposes. Buyer is acquiring the Shares for his own
account, for investment purposes only and not with a view to resale or other
distribution thereof, nor with the intention of selling, transferring or
otherwise disposing of all or any part of such Shares, or any interest therein,
for any particular price, or at any particular time, or upon the happening of
any particular event or circumstances, except selling, transferring, or
disposing of such Shares made in full compliance with all applicable provisions
of the Securities Act and the Exchange Act, and the Rules and Regulations
promulgated by the Securities and Exchange Commission thereunder, all as
amended; and that such Shares must be held indefinitely unless they are
subsequently registered under the Securities Act, or an exemption from such
registration is available.
5.2 Sophisticated Investor. Buyer has sufficient knowledge and
experience of financial and business matters, is able to evaluate the merits and
risks of purchasing such Shares and has had substantial experience in previous
private and public purchases of securities.
6. POST-CLOSING COVENANTS.
----------------------
6.1 Further Assurances. After the Closing, at the request of
either party, the other party shall execute, acknowledge and deliver, without
further consideration, all such further assignments, conveyances, endorsements,
deeds, powers of attorney, consents and other documents and take such other
action as may be reasonably requested to consummate the transactions
contemplated by this Agreement.
6.2 Registration Rights. Seller shall use its best efforts to
insure that promptly after the Closing, Western will prepare and file with the
SEC a registration statement on Form S-3 (or, if Form S-3 is not then available
to Western, on such form of registration statement that is then available to
effect a registration of all Shares, such as, for example, an amendment to its
most recent S-1 filing) for the purpose of registering under the Securities Act
all of the Shares for resale by, and for the account of, the Buyer as selling
stockholders thereunder (the "Registration Statement"). The Registration
Statement shall permit the Buyer to offer and sell, on a delayed or continuous
basis pursuant to Rule 415 under the Securities Act, any or all of the Shares.
Western agrees to use best efforts to cause the Registration Statement to become
effective as soon as practicable after filing.
-2-
7. MISCELLANEOUS
-------------
7.1 Binding Effect; Benefits. This Agreement shall inure to the
benefit of, and shall be binding upon, the parties hereto and their respective
successors and permitted assigns. Except as otherwise set forth herein, this
Agreement may not be assigned by any party hereto without the prior written
consent of the other party hereto. Except as otherwise set forth herein, nothing
in this Agreement, expressed or implied, is intended to confer on any person
other than the parties hereto or their respective successors and permitted
assigns any rights, remedies, obligations or liabilities under or by reason of
this Agreement.
7.2 Notices. All notices, requests, demands and other
communications which are required to be or may be given under this Agreement
shall be in writing and shall be deemed to have been duly given when delivered
in person, or transmitted by telecopy or telex, or upon receipt after dispatch
by certified or registered first class mail, postage prepaid, return receipt
requested, to the party to whom the same is so given or made, at the following
addresses (or such others as shall be provided in writing hereinafter):
(a) If to Seller, to:
American United Global, Inc.
000 Xxxxxxx Xxxxxx - #000
Xxxxxx, XX 00000
Attn: Xxxxxx Xxxxx, CEO
Fax No.: (000) 000-0000
(b) If to the Buyer, to:
7.3 Entire Agreement. This Agreement constitutes the entire
agreement and supersedes all prior agreements and understandings, oral and
written, between the parties hereto with respect to the subject matter hereof.
7.4 Headings. The section and other headings contained in this
Agreement are for reference purposes only and shall not be deemed to be a part
of this Agreement or to affect the meaning or interpretation of this Agreement.
7.5 Counterparts. This Agreement may be executed in any number of
counterparts, each of which, when executed, shall be deemed to be an original
and all of which together shall be deemed to be one and the same instrument.
Facsimile signatures shall be considered as valid signatures as of the date
hereof, although the original signature pages shall thereafter be appended to
this Agreement and retained by [Seller or Buyer].
7.6 Governing Law. This Agreement shall be construed as to both
validity and performance and enforced in accordance with and governed by the
laws of the State of New York, without giving effect to the conflicts of law
principles thereof.
7.7 Severability. If any term or provision of this Agreement shall
to any extent be invalid or unenforceable, the remainder of this Agreement shall
not be affected thereby, and each term and provision of the Agreement shall be
valid and enforced to the fullest extent permitted by law.
-3-
7.8 Arbitration. Any controversy or dispute arising out of or in
connection with this Agreement, its interpretation, performance or termination,
which the parties hereto are unable to resolve within a reasonable time after
written notice from one (1) party to the other of the existence of such
controversy or dispute shall be determined by arbitration. Such arbitration
shall be in accordance with the rules and procedures then in effect of the
National Association of Securities Dealers, Inc. by a securities industry panel.
The costs and expenses of such arbitration, including attorney's fees and
expenses, shall be awarded as determined by the arbitrators.
7.9 Amendments. This Agreement may not be modified or changed
except by an instrument or instruments in writing executed by the parties
hereto.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the date first above written.
SELLER: BUYER
American United Global, Inc.
---------------------------- ----------------------------
Name: Name:
Title: Title:
WESTERN POWER & EQUIPMENT CORP.
(signing only with respect to
Section 6.2 of this Agreement)
----------------------------
Name:
Title:
-4-
