EXHIBIT 10.52
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 August , 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"), at a price of $____ per
share, and (b) a warrant to purchase 100,000 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.
(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
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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).
(F) DISCLOSURE. Neither the Company nor any other Person acting on its
behalf has provided the Purchaser or their agents or counsel with any
information that constitutes or may, in the Company's opinion,
constitute material non-public information.
3. REPRESENTATIONS AND WARRANTIES OF THE PURCHASER. The Purchaser hereby
represents and warrants to the Company as follows:
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(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;
(v) The Purchaser understands and agrees that in addition to any
other restrictive legend which may be imposed on the certificates,
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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;
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(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;
(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. The term "Closing Day" shall mean the
first date that the Company can deliver the Shares.
5. REGISTRATION RIGHTS. The Company shall cause within a reasonable time, in any
case not later than August 15, 2003, 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
September 15, 2003 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 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. With the exception of the Company's current
Registration Statement on Form SB-2 (Reg. No. 333-101055) and the Registration
Statement referred to herein, which shall include other securities in addition
to those described herein, the Company shall not cause any additional
registration statement to become effective prior to the effectiveness of the
registration statement referred to herein.
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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.
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, Jeffrey M. Smith, Greenberg Traurig, LLP, The
Forum, 3290 Northside Parkway, N.W., Suite 400, Atlanta, Georgia 30327 Tel:
678-553-2100 Fax: 678-553-2212, 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) 253-0870
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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.
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: /s/ Bogdan C. Maglich
--------------------------------
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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ASSIGNMENT
The Purchaser may in the future assign the foregoing Agreement to an assignee of
the Purchaser's choice. The Purchaser may use the following assignment form.
FOR VALUE RECEIVED, the above-signed Purchaser, pursuant to the provisions of
the within Stock Purchase Agreement hereby assigns and transfers unto
__________________ the rights, titles and interests of Purchaser under the
within Stock Purchase Agreement and all rights evidenced thereby and does
irrevocably constitute and appoint _____________, attorney, to transfer the
_______ Shares and Warrant W-__ on the books of the within-named Company.
ASSIGNOR
Dated: _________________ Signature:_______________________
Name:____________________________
Title:___________________________
Assignee:________________________
Address:_________________________
_________________________
_________________________
Tax ID. No.:_____________________
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