EXHIBIT 4.4
THIS WARRANT HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933
("ACT"), AS AMENDED, OR ANY STATE SECURITIES LAWS AND MAY NOT BE SOLD, OFFERED
FOR SALE, PLEDGED OR HYPOTHECATED IN THE ABSENCE OF A REGISTRATION STATEMENT IN
EFFECT WITH RESPECT TO THE SECURITIES UNDER SUCH ACT OR LAWS OR AN OPINION OF
COUNSEL SATISFACTORY TO THE COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED.
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WARRANT CERTIFICATE
_______________________________________________________________
NUMBER OF WARRANTS: 150,000 CERTIFICATE NO. 1
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WARRANT TO PURCHASE COMMON STOCK
OF
HIENERGY TECHNOLOGIES, INC.
Void after May 31, 2005
This certifies that XXXXX XXXX (the "Holder") is entitled, subject to the terms
set forth below, to purchase from HiEnergy Technologies, Inc. (the "Company"), a
Washington corporation, 150,000 shares of the common stock of the Company
("Common Stock") from the date of this Warrant ("Warrant Commencement Date"), as
such Common Stock is constituted on the Warrant Commencement Date, upon
surrender of this Certificate at the principal office of the Company (referred
to below), together with the attached Notice of Exercise form duly executed, and
with simultaneous payment in lawful money of the United States, or otherwise as
provided below, in an amount equal to the Exercise Price as set forth in Section
2 below. The number, character and Exercise Price of such shares of Common Stock
are subject to adjustment as provided below. The term "Warrant" as used herein
shall include this Warrant, which is one of a series of warrants issued for the
Common Stock of the Company, and any warrants delivered in substitution or
exchange therefor as provided below.
1. Term of Warrant. Subject to the terms and conditions set forth herein, this
Warrant shall be exercisable, in whole or in part, during the term ("Term")
commencing on the Warrant Commencement Date and ending at 5:00 p.m, Los
Angeles time, on May 31, 2005 ("Expiration Date") and shall be void
thereafter. In the event the Company files a preliminary registration
statement or prospectus with the U.S. Securities and Exchange Commission or
other securities regulator in the jurisdiction where the offering is being
made, for the purposes of registering or qualifying an underwritten public
offering of securities of the Issuer for stated proceeds of not less than
USD $10,000,000 (before payment of underwriters' discounts and
commissions), the Expiration Date of the Term shall be 5:00 p.m., Los
Angeles time, on the day that is 30 days following such filing date.
HiEnergy Technologies, Inc - Warrant Certificate Page 1 of 6
2. Exercise Price The exercise price at which this Warrant may be exercised
shall be USD $1.00 per share of Common Stock, as adjusted from time to time
pursuant to Section 8 (the "Exercise Price").
3. Exercise of Warrant.
3.1 Method of Exercise. The purchase rights represented by this Warrant
are exercisable by the Holder in whole or in part (such number being
subject to adjustment as provided in Section 8 below), at any time, or
from time to time, during the Term by surrender of this Warrant and
the annexed Notice of Exercise (duly completed and executed on behalf
of the Holder) at the office of the Company (or such other office or
agency of the Company as it may designate by notice in writing to the
Holder at the address of the Holder appearing on the books of the
Company), with payment in cash or by check acceptable to the Company,
of the purchase price of the shares of Common Stock to be purchased.
No fractional shares or scrip representing fractional shares shall be
issued upon the exercise of this Warrant. In lieu of any fractional
share to which the Holder would otherwise be entitled, the Company may
make a cash payment equal to the Exercise Price multiplied by such
fraction.
3.2 Issuance of Stock Certificates. This Warrant shall be deemed exercised
immediately prior to the close of business on the date of surrender
for exercise as provided above, and the person entitled to receive the
shares of Common Stock issuable upon such exercise shall be treated
for all purposes as the Holder of record of such shares as of the
close of business on such date. As promptly as practicable on or after
such date and in any event within thirty (30) days thereafter, the
Company at its expense shall issue and deliver to the person or
persons entitled to receive the same a certificate or certificates for
the number of shares issuable upon such exercise.
4. Rights of Stockholders. This Warrant shall not entitle its Holder to any of
the rights of a stockholder of the Company until, and except to the extent
that, this Warrant is exercised.
5. Replacement of Warrant. On receipt of evidence reasonably satisfactory to
the Company of the loss, theft, destruction or mutilation of this Warrant
and, in the case of loss, theft or destruction, delivery of an indemnity
agreement or indemnity bond reasonably satisfactory in form and substance
to the Company or, in the case of mutilation, on surrender and cancellation
of this Warrant, the Company at its expense shall execute and deliver, at
Holder's expense, in lieu of this Warrant, a new warrant of like tenor and
amount.
6. Transfer of Warrant; Holder's Responsibilities.
6.1 Transferability and Negotiability of Warrant. This Warrant may not be
transferred or assigned either in whole or in part.
6.2 Warrant Register. The Company will maintain a register (the "Warrant
Register") containing the names and addresses of all Holders. Any
Holder of this Warrant or any portion thereof may change his, her, or
its address as shown on the Warrant Register by written notice to the
Company requesting such change. Any notice or written communication
required or permitted to be given to the Holder may be delivered or
given by mail to such Holder as shown on the Warrant Register and at
the address shown on the Warrant Register. Until this Warrant is
transferred on the Warrant Register, the Company may treat the Holder
as shown on the Warrant Register as the absolute owner of this Warrant
for all purposes, notwithstanding any notice to the Company.
HiEnergy Technologies, Inc - Warrant Certificate Page 2 of 6
6.3 Warrant Agent. The Company may, by written notice to the Holder,
appoint an agent for the purpose of maintaining the Warrant Register
and issuing the Common Stock or other securities then issuable upon
the exercise of this Warrant, exchanging this Warrant, replacing this
Warrant, or any or all of the foregoing. Thereafter, any such
registration, issuance, exchange, or replacement, as the case may be,
shall be made at the office of such agent.
6.4 Compliance with Securities Laws. The Holder of this Warrant, by
acceptance of the same, acknowledges that this Warrant and the shares
of Common Stock or Common Stock to be issued upon exercise or
conversion are being acquired solely for the Holder's own account and
not as a nominee for any other party, and not with a view to any
distribution thereof by the Holder, and that the Holder will not
offer, sell or otherwise dispose of this Warrant or any shares of
Common Stock or Common Stock to be issued upon exercise or conversion
except pursuant to an effective registration statement, or an
exemption therefrom, under the Act and any applicable state or
provincial securities laws. Upon exercise of this Warrant, the Holder
shall, if requested by the Company, confirm in writing, in a form
satisfactory to the Company, that the shares of Common Stock or Common
Stock so purchased are being acquired solely for the Holder's own
account and not as a nominee for any other party and not with a view
toward distribution.
6.5 This Warrant and all shares of Common Stock or Common Stock issued
upon exercise or conversion shall be stamped or imprinted with a
legend in substantially the following form (in addition to any other
legend required by state securities laws or deemed advisable by the
board of directors):
The securities represented by this certificate have not been
registered under the Securities Act of 1933 or under the laws of any
state. The Securities may not be sold or offered for sale, in whole or
in part, in the absence of an effective registration statement
covering them under said Act and applicable state laws unless in the
opinion of counsel for the holder exemptions from such registration
are available, which opinion shall be subject to the approval of the
Company and its counsel.
7. Reservation of Stock. The Company covenants that during the Term the
Company will reserve from its authorized and unissued Common Stock a
sufficient number of shares of Common Stock to provide for the issuance of
Common Stock upon the exercise of this Warrant and, from time to time, will
take all steps to amend its Articles of Incorporation to provide sufficient
reserves of shares of Common Stock issuable upon exercise of the Warrant.
The Company further covenants that all shares that may be issued upon
exercise of the rights represented by this Warrant and payment of the
Exercise Price, all as set forth herein, will be duly authorized, validly
issued, fully paid and non-assessable and will be free from all taxes,
liens and charges in respect of the issue thereof (other than taxes in
respect of any transfer occurring contemporaneously or otherwise specified
herein). The Company agrees that by issuance of this Warrant it vests full
authority in its officers charged with the duty of executing stock
certificates to execute and issue the necessary certificates for shares of
Common Stock upon the exercise of this Warrant.
8. Adjustments. The Exercise Price and the number of shares of Common Stock
purchasable hereunder are subject to adjustment from time to time as
follows:
8.1 Merger, Sale of Assets, etc. If at any time while this Warrant, or any
portion thereof, is outstanding and unexpired there shall be (i) a
reorganization (other than a combination,
HiEnergy Technologies, Inc - Warrant Certificate Page 3 of 6
reclassification, exchange or subdivision of shares otherwise provided
for herein), (ii) a merger or consolidation of the Company with or
into another corporation in which the Company is not the surviving
entity, or a reverse triangular merger in which the Company is the
surviving entity but the shares of the Company's capital stock
outstanding immediately prior to the merger are converted by virtue of
the merger into other property, whether in the form of securities,
cash, or otherwise, or (iii) a sale or transfer of the Company's
properties and assets as, or substantially as, an entirety to any
other person, then, as a part of such reorganization, merger,
consolidation, sale or transfer, lawful provision shall be made so
that the Holder of this Warrant shall thereafter be entitled to
receive upon exercise of this Warrant, during the period specified
herein and upon payment of the Exercise Price then in effect, the
number of shares of stock or other securities or property of the
successor corporation resulting from such reorganization, merger,
consolidation, sale or transfer that a Holder of the shares
deliverable upon exercise of this Warrant would have been entitled to
receive in such reorganization, consolidation, merger, sale or
transfer if this Warrant had been exercised immediately before such
reorganization, merger, consolidation, sale or transfer, all subject
to further adjustment as provided in this Section 8. The foregoing
provisions of this Section 8 shall similarly apply to successive
reorganizations, consolidations, mergers, sales and transfers and to
the stock or securities of any other corporation that are at the time
receivable upon the exercise of this Warrant. If the per-share
consideration payable to the Holder for shares in connection with any
such transfer is in a form other than cash or marketable securities,
then the value of such consideration shall be determined in good faith
by the Company's Board of Directors. In any event, appropriate
adjustment (as determined in good faith by the Company's Board of
Directors) shall be made in the application of the provisions of this
Warrant with respect to the rights and interests of the Holder after
the transaction, to the end that the provisions of this Warrant shall
be applicable after that event, as nearly as reasonably possible, in
relation to any shares or other property deliverable after that event
upon exercise of this Warrant.
8.2 Reclassification, etc. If, at any time while this Warrant, or any
portion thereof, remains outstanding and unexpired and the Company, by
reclassification of securities or otherwise, shall change any of the
securities as to which purchase rights under this Warrant exist into
the same or a different number of securities of any other class or
classes, this Warrant shall thereafter represent the right to acquire
such number and kind of securities as would have been issuable as the
result of such change with respect to the securities that were subject
to the purchase rights under this Warrant immediately prior to such
reclassification or other change and the Exercise Price therefore
shall be appropriately adjusted, all subject to further adjustment as
provided in this Section 8.
8.3 Split, Subdivision or Combination of Shares. If the Company at any
time while this Warrant (or any portion) remains outstanding and
unexpired shall split, subdivide or combine the securities as to which
purchase rights under this Warrant exist into a different number of
securities of the same class, the Exercise Price for such securities
shall be proportionately decreased in the case of a split or
subdivision or proportionately increased in the case of a combination.
8.4 Adjustments for Dividends in Stock or Other Securities or Property. If
while this Warrant, or any portion hereof, remains outstanding and
unexpired the holders of the securities as to which purchase rights
under this Warrant exist at the time shall have received, or, on or
after the record date fixed for the determination of eligible
Stockholders, shall have become entitled to receive, without payment
therefor, other or additional stock or other securities or property
(other than cash) of the Company by way of dividend, then and in each
case, this Warrant shall represent the
HiEnergy Technologies, Inc - Warrant Certificate Page 4 of 6
right to acquire, in addition to the number of shares of the security
available upon exercise of this Warrant, and without payment of any
additional consideration therefor, the amount of such other or
additional stock or other securities or Property (other than cash) of
the Company that such Holder would have held on the date of such
exercise had it been the Holder of record of the security receivable
upon exercise of this Warrant on the date hereof and had thereafter,
during the period from the date hereof to and including the date of
such exercise, retained such shares and/or all other additional stock
available by it as aforesaid during such period, giving effect to all
adjustments called for during such period by the provisions of this
Section 8.
8.5 Certificate as to Adjustments. Upon the occurrence of each adjustment
or readjustment pursuant to this Section 8, the Company at its expense
shall promptly compute such adjustment or readjustment in accordance
with the terms hereof and furnish to the Holder of this Warrant a
certificate setting forth such adjustment or readjustment and showing
in detail the facts upon which such adjustment or readjustment is
based. The Company shall, upon the written request, at any time, of
any such Holder, furnish or cause to be furnished to the Holder a like
certificate setting forth: (i) such adjustments and readjustments;
(ii) the Exercise Price at the time in effect; and (iii) the number of
shares and the amount, if any, of other property that at the time
would be received upon the exercise of this Warrant.
8.6 No Impairment. The Company will not, by any voluntary action, avoid or
seek to avoid the observance or performance of any of the terms to be
observed or performed hereunder, but will at all times in good faith
assist in the carrying out of all provisions of this Section 8 and in
the taking of all such action as may be necessary or appropriate in
order to protect the rights of the Holders of this Warrant against
impairment.
9. Notices.
9.1 Notice Generally. Any notice, demand, request, consent, approval,
declaration, delivery or communication to be made pursuant to the
provisions of this Agreement shall be sufficiently given or made if in
writing and shall be deemed to have been validly served, given or
delivered; (i) three (3) days after deposit in the United States mail,
with proper postage prepaid; (ii) when sent after receipt of
confirmation or answerback if sent by telex or telecopy or other
similar facsimile transmission; (iii) one (1) business day after
deposit with a reputable overnight courier with all charges prepaid
or; (iv) when delivered, if hand-delivered by messenger, all of which
shall be properly addressed to the party to be notified and sent to
the address or number indicated as follows:
(a) If to the Holder, at its last known address appearing on the books
of the Company maintained for such purpose.
(b) If to the Company at: 00 Xxxxxxx Xxxxx, Xxxxxx, Xxxxxxxxxx, 00000.
or at such other address as may be substituted by notice given as
herein provided. The giving of any required notice may be waived in
writing by the party entitled to receive such notice.
10. Amendments. This Warrant and any contained term may be changed, waived,
discharged or terminated only by an instrument in writing signed by the
party against whom enforcement of such change, waiver, discharge or
termination is sought. No waiver of, or exception to, any term, condition
or provision of
HiEnergy Technologies, Inc - Warrant Certificate Page 5 of 6
this Warrant, in any one or more instances, shall be deemed to be, or
construed as, a further or continuing waiver of any such term, condition or
provision.
11. Miscellaneous.
11.1 Nonwaiver. No course of dealing or any delay or failure to exercise
any right hereunder on the part of the Holder shall operate as a
waiver of such right or otherwise prejudice the Holder's rights,
powers or remedies.
11.2 Severability. Each provision of this Warrant shall be interpreted in
such manner as to be effective and valid under applicable law. If any
provision of this Warrant shall be prohibited by or invalidated under
applicable law, such provision shall be ineffective to the extent of
such prohibition or invalidity, without invalidating the remainder of
such provision or the remaining provisions of this Warrant.
11.3 Headings. The headings used in this Warrant are for convenience of
reference only and shall not, for any purpose, be deemed a part of
this Warrant.
11.4 Governing Law. This Warrant shall be governed by the laws of the State
of Washington without regard to the provisions thereof relating to
conflict of laws.
IN WITNESS WHEREOF, HiEnergy Technologies, Inc., has caused this Warrant to be
executed by its duly authorized officers.
Dated: 6-3-02
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HIENERGY TECHNOLOGIES, INC.
By: /s/ Xxxxx Xxxxx
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Xxxxx Xxxxx, Chief Executive Officer
Attest:
/s/ Xxxxxx Xxxx
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Xxxxxx Xxxx, Secretary
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NOTICE OF EXERCISE
To: HiEnergy Technologies, Inc.
(1) The undersigned hereby elects to purchase _______________ shares of
the Common Stock of HiEnergy Technologies, Inc. (the "Company"),
pursuant to the terms of the attached Warrant, tendering simultaneous
full payment of the purchase price for such shares.
(2) In exercising this Warrant, the undersigned hereby confirms and
acknowledges that:
a) the shares of Common Stock to be issued upon exercise are being
acquired solely for the account of the undersigned and not as a
nominee for any other party; and
b) the shares of Common Stock to be issued upon exercise are not
acquired with a view toward distribution; and
c) the undersigned is an "accredited investor" as that term is
defined in Rule 501 of Regulation D under the Securities Act of
1933, as amended, and as provided in the Subscription Agreement;
and
d) the undersigned will not offer, sell or otherwise dispose of any
such shares of Common Stock except pursuant to an effective
registration, or an exemption therefrom, under the Securities Act
of 1933, as amended, together with a similar exemption under the
securities laws of all applicable jurisdictions; and
e) the undersigned otherwise reaffirms all representations,
warranties, and indemnifications contained in the Warrant
Certificate and Subscription Agreement, including, but not
limited to, those contained in Section 6 of the Warrant
Certificate; and
f) the undersigned has reviewed all of Company's public filings with
the Securities and Exchange Commission; and
g) the undersigned consents to delay the exercise of the Warrant
until, in the Company's judgment, the Company has disclosed any
additional matters that need to be disclosed to the undersigned,
beyond those contained in the public filings with the Securities
and Exchange Commission.
(3) Subject to Section (2), please issue a certificate or certificates
representing said shares of Common Stock in the name of the
undersigned.
(4) Please issue a new Warrant for the unexercised portion of the attached
Warrant in the name of the undersigned.
This ________ day of, __________, ____:
______________________________________
Signature
______________________________________
Print Name of Signatory
______________________________________
Name of Entity (if applicable)