Exhibit 10.70
CONSENT AND WAIVER
This Consent and Waiver is entered as of January 21, 2004, by and
between ____________________ and its successors and assignees ("Purchaser") and
HiEnergy Technologies, Inc. ("Company").
WHEREAS, Purchaser purchased from the Company shares of the common
stock of the Company and warrants to acquire additional shares of the common
stock of the Company (collectively, the "Securities") pursuant to that certain
Stock Purchase Agreement between the Purchaser and the Company dated April ___,
2003; and
WHEREAS, the Company offered and sold the Securities to Purchaser
pursuant to a registration statement (File No. 333-101055) (the "Registration
Statement") filed with the Securities and Exchange Commission and declared
effective by the Securities and Exchange Commission on April 25, 2003; and
WHEREAS, the Securities and Exchange Commission subsequently commented
that the Company was not eligible to conduct the type of offering described in
the Registration Statement, that the Company did not include in the prospectus
the pricing information required by the Securities Act of 1933 (the "Securities
Act"); and
WHEREAS, Purchaser desires to consent to the manner in which the
Securities were offered and sold and to waive any claims Purchaser may have
against the Company due to any failure of the offer or sale of the Securities to
comply with the requirements of Section 5 of the Securities Act or equivalent
state securities laws.
NOW, THEREFORE, Purchaser and Company hereby agree as follows:
1. Purchaser hereby consents to the manner of offer and sale of the
Securities and to the use of the prospectus contained within the Registration
Statement in connection with the offer and sale of the Securities.
2. Purchaser hereby unconditionally waives, releases and discharges the
Company and its officers, directors, successors, assigns and affiliates from all
actions, causes of action, suits, debts, damages, judgments, claims, and demands
("Claims") by reason of any violation or alleged violation of the requirements
of Section 5 of the Securities Act of 1933 in connection with the offer or sale
of the Securities, including without limitation the requirement that a
prospectus meets the requirements of Section 10 of the Securities Act and the
requirement not to offer or sell securities unless a registration statement is
in effect with respect to the securities, or by reason of any violation or
alleged violation of any similar requirements of state securities laws.
3. Purchaser does not waive, release or discharge hereby any Claims by
reason of any untrue statement of material fact or any omission of a material
fact necessary in order to make the statements not misleading made in connection
with the offer or sale of the Securities.
4. In the event that any provision of this Consent and Waiver 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.
5. This Consent and Waiver may be executed in one or more counterparts,
each of which shall be deemed an original but all of which together will
constitute one and the same instrument.
6. This Consent and Waiver shall be governed by and construed in
accordance with the laws of the State of California, without giving effect to
principles of conflicts of law.
IN WITNESS WHEREOF, the parties hereto have caused this Consent and
Waiver 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: Xxxxxx X. Xxxxxxx
Title: Chairman, Chief Executive Officer
and Treasurer
PURCHASER:
By:
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Name:
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Title:
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