EXHIBIT 6.17
STOCK PURCHASE AGREEMENT (the "Agreement") dated December 28, 1999, between
BIOFIELD CORP., a Delaware corporation (the "Company"), and XXXXX X. XXXX, XX.,
M.D., PH.D. ("Xx. Xxxx") individually and on behalf of Long Family Partners II,
LP, Xxxxxxx X Xxxx u/a 11/1/91 and Xxxxxxx X. Xxxx, individually (collectively,
the "Purchasers").
WHEREAS, the Company desires to issue and sell to the Purchasers, on whose
behalf Xx. Xxxx is acting, and the Purchasers desire to acquire, shares of the
Company's common stock, par value $0.001 per share (the "Common Stock").
NOW, THEREFORE, in consideration of the mutual covenants contained in this
Agreement, the Company and Xx. Xxxx agree as follows:
ARTICLE 1
PURCHASE AND SALE OF COMMON STOCK
1.1 PURCHASE AND SALE OF COMMON STOCK. Upon the terms and conditions set
forth herein, simultaneously herewith, the Company is issuing and selling to the
Purchasers, and the Purchasers are purchasing, 14,000,000 shares of Common Stock
(the "Shares"), registered in the names of the respective Purchasers, as
follows:
Long Family Partners II, LP 7,800,000 shares
Xxxxx X. Xxxx, Xx. 2,200,000 shares
Xxxxxxx X. Xxxx u/a 01/01/91 2,800,000 shares
Xxxxxxx X. Xxxx 1,200,000 shares
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14,000,000 shares
1.2 PURCHASE PRICE. The aggregate purchase price for the Shares is $700,000
(the "Purchase Price"), payable by each of the Purchasers as follows, receipt of
checks for which (subject to collection) are hereby acknowledged:
Long Family Partners II, LP $390,000
Xxxxx X. Xxxx, Xx. $110,000
Xxxxxxx X. Xxxx u/a 01/01/91 $140,000
Xxxxxxx X. Xxxx $ 60,000
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$700,000
1.3 THE CLOSING. The purchase and sale of the Shares (the "Closing") is
taking place simultaneously herewith (the "Closing Date") at the offices of
Squadron, Ellenoff, Plesent,& Sheinfield, LLP, 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000. Promptly after the Closing, the Company shall deliver to the
Purchasers stock certificates representing the Shares registered in the names of
the respective Purchasers.
ARTICLE 2
REPRESENTATIONS AND WARRANTIES
2.1 REPRESENTATIONS, WARRANTIES AND AGREEMENTS OF THE COMPANY. The Company
makes the following representations, warranties and agreements with and to Xx.
Xxxx and the Purchasers:
(a) ORGANIZATION AND QUALIFICATION. The Company is a corporation duly
and validly existing and in good standing under the laws of the State of
Delaware and has the requisite corporate power to own its properties and to
carry on its business as now being conducted. The Company is duly qualified as a
foreign corporation to do business and is in good standing in every jurisdiction
in which the nature of the business conducted or property owned by it makes such
qualification necessary and where the failure so to qualify could reasonably be
expected to have a Material Adverse Effect. "Material Adverse Effect" means any
material adverse effect on the operations, properties, prospects, or financial
condition of the Company.
(b) AUTHORIZATION. (i) The Company has the requisite corporate power
and authority to enter into and perform this Agreement and to issue the Shares
in accordance with the terms hereof, (ii) the execution and delivery of this
Agreement by the Company and the consummation by it of the transactions
contemplated hereby has been duly authorized by the Company's Board of Directors
and no further consent or authorization of the Company or its Board of Directors
or stockholders is required, (iii) this Agreement has been duly executed and
delivered by the Company, and (iv) this Agreement constitutes a valid and
binding obligation of the Company enforceable against the Company in accordance
with its terms, except as such enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium, liquidation or similar laws
relating to, or affecting generally the enforcement of, creditors' rights and
remedies or by other equitable principles of general application.
(c) ISSUANCE OF SHARES. The Shares are duly authorized, validly issued,
fully paid and nonassessable and free and clear of all liens, claims and
encumbrances.
(d) NO CONFLICTS. The execution, delivery and performance of this
Agreement by the Company and the consummation by the Company of the transactions
contemplated hereby or relating hereto do not and shall not (i) result in the
violation of the Company's certificate of incorporation, as amended to date, or
by-laws, as currently in effect, 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, acceleration or
cancellation of, any agreement, indenture or instrument to which the Company is
a party or result in a violation of any law, rule, regulation, order, judgment
or decree (including Federal securities laws and regulations) applicable to the
Company, or by which any property or asset of the Company is bound or affected
(except for such conflicts, defaults, terminations, amendments, accelerations,
cancellations and violations that could not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect). The Company is not
required to obtain any consent, authorization or order of, or make any filing or
registration with, any court or governmental agency in order for it to execute,
deliver or perform any of its obligations under this Agreement or issue and sell
the Shares in accordance with the terms hereof.
(e) SEC FILINGS. The Company suspended its duty to file reports with
the Securities and Exchange Commission (the "SEC") pursuant to the reporting
requirements of the Securities Exchange Act of 1934 (the "Exchange Act") on or
about February 26, 1999, and terminated the registration of the Common Stock
under the Exchange Act on or about 90 days thereafter. As a result, the Company
is not a reporting company under the Exchange Act and the Common Stock is no
longer registered under the Exchange Act. Until the Company suspended its duty
to file reports with the SEC pursuant to the reporting requirements of the
Exchange Act, on or about February 26, 1999, the Company was current in its
Exchange Act reporting, and none of the documents filed by the Company with the
SEC, during the two-year period prior to February 26, 1999, contained any untrue
statement of a material fact or omitted to state a material fact required to be
stated therein or necessary in order to make the statements therein, in light of
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the circumstances under which they were made, not misleading. The financial
statements of the Company included in the foregoing documents had been prepared
in accordance with generally accepted accounting principles applied on a
consistent basis during the periods involved (except (i) as may have been
otherwise indicated in such financial statements or the notes thereto, or (ii)
in the case of unaudited interim statements, to the extent they may not have
included footnotes or may have been condensed or summary statements) and fairly
presented, in all material respects, the financial position of the Company as of
the dates thereof and the results of operations and cash flows for the periods
then ended (subject, in the case of unaudited statements, to normal year-end
audit adjustments).
(f) TRANSACTIONS SINCE FEBRUARY 26, 1999. Since February 26, 1999, the
Company has not disposed of any material assets (including rights thereto) or
engaged in any transactions not in the ordinary course of business.
(g) FURNISHED INFORMATION. All information furnished in writing by or
on behalf of the Company in connection with the transactions contemplated by
this Agreement, to the knowledge of the Company and the persons furnishing such
information on its behalf, and after reasonable investigation, was correct and
complete in all material respects at the time or times furnished; and, at the
Closing Date, no material changes have occurred which would make such prior
disclosures incorrect or incomplete in any material respect. Since October 1,
1999, the Company has not incurred any new obligations or taken any actions to
terminate or limit any then-existing insurance coverage.
2.2 REPRESENTATIONS, WARRANTIES AND AGREEMENTS OF THE PURCHASERS. Xx. Xxxx
makes the following representations, warranties and agreements with and to the
Company:
(a) ORGANIZATION; AUTHORIZATION. (i) Xx. Xxxx and the other Purchasers
have the requisite power, capacity and authority to enter into and perform this
Agreement, (ii) this Agreement has been duly executed and delivered by Xx. Xxxx,
and (iii) this Agreement constitutes a valid and binding obligation of Xx. Xxxx
enforceable against him in accordance with its terms, except as such
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium, liquidation or similar laws relating to, or
affecting generally the enforcement of, creditors' rights and remedies or by
other equitable principles of general application.
(b) NO CONFLICTS. The execution, delivery and performance of this
Agreement by the Purchasers and the consummation by the Purchasers of the
transactions contemplated hereby or relating hereto do not and shall not
conflict with, or constitute a default (or an event which with notice or lapse
of time or both would become a default) under, any agreement, indenture or
instrument to which any of the Purchasers is a party, or result in a violation
of any law, rule, regulation, order, judgment or decree of any court or any
governmental agency applicable to any Purchaser or his or its properties (except
for such conflicts, defaults and violations as would not, individually or in the
aggregate, have a material adverse effect on such Purchaser). None of the
Purchasers is required to obtain any consent, authorization or order of, or make
any filing or registration with, any court or governmental agency in order for
it to execute, deliver or perform any of its obligations under this Agreement or
purchase the Shares in accordance with the terms hereof.
(c) EVALUATION OF RISKS. The Purchasers have such knowledge and
experience in financial and business matters so as to be capable of evaluating
the merits and risks of, and bearing the economic risks entailed by, an
investment in the Company and of protecting their interests in connection with
this transaction. The Purchasers recognize that their investment in the Company
involves a high degree of risk.
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(d) NO REGISTRATION, REVIEW OR APPROVAL. The Purchasers understand that
the sale of the Shares pursuant to this Agreement has not been, and will not be,
reviewed or approved by the SEC or by any state securities commission, authority
or agency, and is not registered under the Securities Act of 1933 (the "1933
Act") or under the securities or "blue sky" laws, rules or regulations of any
state. The Purchasers understand that the Shares are being offered and sold to
them pursuant to a private placement exemption to the registration provisions of
the 1933 Act.
(e) INVESTMENT EXPERIENCE. Each of the Purchasers is an "accredited
investor" as defined in Rule 501(a) under the 1933 Act.
(f) INVESTMENT INTENT. Xx. Xxxx, on behalf of each of the Purchasers,
represents to the Company that the Shares are being purchased for investment,
and not with a view toward distribution.
(g) RESTRICTIONS ON RESALE. The Purchasers understand that they may
not, directly or indirectly, offer, sell, pledge, transfer or otherwise dispose
of (or solicit any offers to buy, purchase or otherwise acquire or take a pledge
of) any of the Shares except in compliance with applicable laws, including the
1933 Act and any applicable state securities laws, and the rules and regulations
promulgated thereunder.
(h) DUE DILIGENCE. The Purchasers understand that each of them is
solely responsible for his or its own (i) "due diligence" investigation of the
Company and its management and business, (ii) analysis of the merits and risks
of an investment in the Shares, and (iii) analysis of the fairness and
desirability of the terms of such investment.
ARTICLE 3
MISCELLANEOUS
3.1 FEES AND EXPENSES: NO BROKERS. Each party shall pay the fees and
expenses of its advisers, counsel, accountants and other experts, if any, and
all other expenses incurred by such party incident to the negotiation,
preparation, execution, delivery and performance of this Agreement and the
transactions contemplated hereby.
3.2 ENTIRE AGREEMENT; AMENDMENTS. This Agreement contains the entire
understanding of the parties with respect to the matters covered hereby and,
except as specifically set forth herein, neither the Company nor any Purchaser
makes any representation, warranty, covenant or undertaking with respect to such
matters. No provision of this Agreement may be waived or amended other than by a
written instrument signed by the party against whom enforcement of any such
amendment or waiver is sought.
3.3 NOTICES. Any notice, consent or other communication (collectively,
"Communications") required or permitted to be given hereunder shall be in
writing and shall be deemed to have been received (a) upon personal delivery,
(b) on the first business day following delivery by telecopy (with transmission
confirmation report) at the address or number designated below, or (c) on the
business day received if delivery is made by overnight express courier service.
The addresses for such Communications shall be:
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If to the Company: Biofield Corp.
c/o C. Xxxxxxx Xxxxxx, Chairman
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Facsimile No.: (000) 000-0000
With copies to: Xxxxx & Gold
000 Xxxx Xxxxxx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxxx, Esq.
Facsimile No.: (000) 000-0000
If to the Purchasers: c/o Xxxxx X. Xxxx, Xx., M.D., Ph.D.
0000 Xxx Xxxxxx Xxx, Xxxxx 000
Xxxxxx Xxxxxx, XX 00000-0000
Facsimile No.: (000) 000-0000
With copies to: Xxxxxxx Xxxxxxxx Xxxxx Xxxxxxxxxxx & Kuh, LLP
000 Xxxxx Xxxxxx - 00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx X. Xxxx, Esq.
Facsimile No.: (000) 000-0000
E-mail: xxxxx@xxxxx.xxx
Any party, from time to time, may change its address for notices under this
Section 3.3 by giving at least three days' notice of such changed address to the
other parties pursuant to this Section 3.3. Any notice of a change in address
shall be effective upon receipt thereof.
3.4 WAIVERS. No waiver by any party of any default with respect to any
provision, condition or requirement of this Agreement shall be deemed to be a
continuing waiver in the future or a waiver of any other provision, condition or
requirement hereof; nor shall any delay or omission of any party to exercise any
right hereunder in any manner impair the exercise of any such right accruing to
it thereafter. Any waiver must be in writing.
3.5 HEADINGS. The headings herein are for convenience only, do not
constitute a part of this Agreement and shall not be deemed to limit or affect
any of the provisions hereof.
3.6 SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon and inure
to the benefit of the parties and their successors and permitted assigns.
Neither the Company nor the Purchasers may assign this Agreement or any rights
or obligations hereunder without the prior consent of the other, and any such
purported assignment shall be void. The assignment by a party of this Agreement
or any rights hereunder shall not affect the obligations of such party under
this Agreement.
3.7 NO THIRD PARTY BENEFICIARIES. This Agreement is intended for the
benefit of the parties and their respective successors and permitted assigns and
is not for the benefit of, nor may any provision hereof be enforced by, any
other person.
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3.8 GOVERNING LAW. This Agreement shall be governed by and construed and
enforced in accordance with the internal laws of the State of New York without
regard to the principles of conflicts of law.
3.9 EXECUTION. This Agreement may be executed in counterparts, each of
which shall be deemed an original for all purposes and any one of which may be
introduced into evidence or used for any other purpose without the production of
its counterparts, and 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 others, it being understood that all parties need not
sign the same counterpart. In the event that any signature is delivered by
facsimile transmission, the party using such means of delivery shall cause an
executed signature pages to be physically delivered to the other parties
promptly thereafter.
3.10 SEVERABILITY. In case any one or more of the provisions of this
Agreement shall be invalid or unenforceable in any respect, the validity and
enforceability of the remaining terms and provisions of this Agreement shall not
in any way be affecting or impaired thereby and the parties will attempt to
agree upon a valid and enforceable provision which shall be a reasonable
substitute therefor, in light of the tenor of this Agreement, and upon so
agreeing, shall incorporate such substitute provision in this Agreement.
3.11 FURTHER ASSURANCES. Each Party 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
any other Party reasonably may request in order to carry out the intent and
accomplish the purposes of this Agreement and the consummation of the
transactions contemplated hereby.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective authorized officers as of the date hereof.
BIOFIELD CORP.
By /s/ C. XXXXXXX XXXXXX /s/ XXXXX X. XXXX, XX.
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C. Xxxxxxx Xxxxxx, Chairman Xxxxx X. Xxxx, Xx., M.D., Ph.D.
Individually and on behalf of the
Purchasers
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