Exhibit 10.43
SUBSCRIPTION AGREEMENT
This subscription (this "Subscription") is dated April 28, 2003 between
Greenwich Growth Fund Ltd. and HiEnergy Technologies Inc., a Delaware
corporation ("Seller") whereby the parties agree as follows:
I. Subscription.
a) The Buyer shall buy and the Seller agrees to sell and issue to the
Buyer 700,000 shares of the Seller's common stock (the "Shares) on the
date hereof, at a price Share equal to $0.35, for an aggregate purchase
price of $245,000 (the "Purchase Price").
b) The Shares have been registered on a Form SB-2, Registration No.
333- 101055 which registration statement (the " has been declared e by
the Securities and Exchange Commission as of April 23, 2003, has
remained effective since such date and is effective on the date hereof
c) On the date hereof, the Seller shall deliver the Shares to the Buyer
either via the Depository Trust Company's (DTC") Deposit Withdrawal
Agent Commission (`DWAC') system via the DTC instructions set forth on
the signature page hereto or via overnight courier. The Purchase Price
shall be paid to the Seller as set forth in the escrow agreement,
entered into among the Purchaser, thy Company and the escrow agent
signatory thereto, in the form of Exhibit A hereto (the "Escrow
Agreement"). On or before the date hereof, the Buyer shall have wired
the Purchase Price to the escrow agent pursuant to the wire
instructions set forth in the l Agreement. The obligations of the
parties hereunder shall be conditioned upon the execution and delivery
by each other party of the Escrow Agreement. The Shares must be
unlegended and free of any resole restrictions that may be imposed by
or on behalf of the Seller. Both parties hereby agree and acknowledge
that delivery of the Shares via DTC's DWAC system is a material
obligation of the Seller and furthermore, with respect to each party's
obligations hereunder, time is of the essence.
d) Pursuant to Rule 424 (b) (1) under the Securities Act of 1933, as
amended, the Seller agrees to file a prospectus under Rule 424 (b)(1).
Buyer acknowledges delivery and receipt of the prospectus in the form
filed with the Company's Registration Statement on Form SB-2/A-2 on
April 22, 2003.
2. Seller Representations and Warranties. The Seller represents and warrants
that: (a) it has full right, power and authority to enter into this Subscription
and to perform all of its obligations hereunder; (b) this Subscription has been
duly authorized and executed by
and constitutes a valid and binding agreement of the Seller enforceable in
accordance with its terms, except as such enforceability may be limited by
general principles of equity or applicable bankruptcy, insolvency,
reorganization, moratorium, liquidation or similar laws relating to, or
affecting generally, the enforcement of creditors' rights and remedies; (c) the
execution and delivery of this Subscription and the consummation of the
transactions contemplated hereby do not conflict with or result in a breath of
(i) the Sellers certificate of incorporation or by-laws, or (ii) in any material
respect, any agreement to which the Seller is a party or by which any of its
property or assets is bound; (d) upon issuance in accordance with the terms
hereof the Shares shall be duly and validly issued and outstanding, fully paid
and non-assessable, and the Buyer shall be entitled to all rights accorded to a
holder of Common Stock; and (c) the Registration Statement and the final
prospectus included therein do not contain untrue statement of a material fact
or omit to state any material fact required to be stated therein or necessary in
order to make the statements therein not misleading in light of the
circumstances under which they were made.
3. Buyer Representations and Warranties. The Buyer represents and warrants with
respect only to it that:
a) Compliance with Securities Laws. The sale of the Shares will be in
compliance with all applicable state and federal securities laws.
b) Authorization: Enforceability. This Subscription has beau duly and
validly authorized, executed and delivered on behalf of such Buyer and
constitutes a valid and binding agreement of such Buyer, enforceable against
such Buyer in accordance with its terms, except as such enforceability may be
limited by general principles of equity or applicable bankruptcy, insolvency,
reorganization, moratorium, liquidation or similar laws relating to, or
affecting generally, the enforcement of creditors rights and remedies.
c) Investigation; Economic Risk. Such Buyer has had such opportunity as
such Buyer has deemed adequate to obtain from publicly available sources or from
representatives of the Company such information as is necessary to permit such
Buyer to evaluate the merits and ri of its investment in the company. Such Buyer
understands that its investment in the Shares involves a high degree of risk and
hereby represents that it is able to bear the economic risk of holding such
Shares as may be acquired pursuant to this Subscription.
d) Buyer Status. Such Buy is acquiring the Securities as principal for
its own account for investment purposes only. Such Purchaser is acquiring the
Securities hereunder in the ordinary course of its business. Such Purchaser does
not have any agreement or understanding, directly or indirectly, with any Person
to distribute any of the Securities.
4. Indemnification.
a) The Seller agrees that it shall indemnify and hold harmless, the
Buyer, its stockholders, directors, officers, employees, agents,
affiliates and controlling persons within the meaning of Section 20 of
the Securities Exchange Act of 1934 and Section 15 of the Securities
Act of 1933, each as amended (any and all of whom are referred to as an
"Indemnified Party"), from and against any and all losses, claims,
damages, liabilities, or expenses, and all actions in respect thereof
(including, but not limited to, all legal or other expenses reasonably
incurred by an Indemnified party in connection with the investigation,
preparation, defense or settlement of any claim, action or proceeding,
whether c not resulting in any liability (provided, however that the
Seller shall only pay for one separate legal counsel for the
Indemnified Parties, and such counsel shall be selected by Buyers
holding a majority-in-interest of the Shares inc in the Registration
Statement to which the claim relates), incurred by an Indemnified Party
arising out of or resulting from: (1) any actions taken or omitted to
be taken by the Seller its affiliates, employees or agents arising out
of or resulting from the execution, delivery, performance, breach by
the Company or enforcement of this Subscription or (2) any untrue
statement or alleged untrue statement of a material fact contained in
any of the financial or other information contained in the registration
statement and/or final prospectus furnished to the Buyer by or on
behalf of the Seller or the omission or alleged omission of a material
fact required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading, provided, however the Seller will not be liable (i) to the
extent and only to the extent that any loss, claim, damage liability or
expanse is finally judicially determined to have resulted primarily
from the Buyer's willful misconduct, fraudulent action(s), or
negligence in performing its obligations hereunder (ii) for any amounts
paid in settlement of any claim if such settlement is effected without
the prior written consent of the Seller which consent shall not be
unreasonably withheld, or (iii) far any claim arising out of or based
upon any information furnished in writing to the Seller by any
Indemnified Party expressly for use in connection with the preparation
of the Prospectus or any amendment or supplement thereto.
(b) If the indemnification provided for herein is conclusively
determined (by an entry of final judgment by a court of competent
jurisdiction and the expiration of the time or denial of the right to
appeal) to be unavailable or Sufficient to hold any Indemnified Party
harmless in respect to any losses, claims, damages, liabilities or
expenses referred to herein, then the Seller shall contribute to the
amounts paid or payable by such Indemnified Party in such proportion as
is appropriate and equitable under all circumstances taking into
account the relative benefits received by the Seller on the one hand
and the Buyer on the other, from the transaction or proposed
transaction under this Subscription or, if allocation on that basis is
not permitted under applicable laws in such proportion as is
appropriate to reflect not only the relative benefits received by the
Seller on the one hand and the Buyer on the other, but also the
relative fault of the Seller and the Buyer.
c) The Seller shall not settle or compromise or consent to the entry of
any Judgment in or otherwise seek to terminate any pending or
threatened action, claim, suit or proceeding in which any Indemnified
Party is or could be a party and as to which indemnification or
contribution could have been sought by such Indemnified Party hereunder
(whether or not such Indemnified Party is a party thereto), unless such
consent or termination includes an express unconditional release of
such indemnified Party reasonably satisfactory in form and substance to
such Indemnified Party, from all losses, claims, damages, liabilities
or expenses arising out of such action, claim, suit or proceeding.
d) In the event any Indemnified Party shall incur any expenses covered
by this Section 4, the Seller shall reimburse the Indemnified Party for
such covered expenses within ten (10) business days of the Indemnified
Party delivery to the Seller of an invoice therefore, with receipts
attached. Such obligation of the Seller to so advance funds may be
conditioned upon the Seller's receipt of a written undertaking from the
Indemnified Party to repay such amounts within ten (10), business days
after a final, non-appealable judicial determination that such
Indemnified Party was not entitled to indemnification hereunder.
e) The foregoing indemnification and contribution provisions are not in
lieu of, but in addition to, any rights which any Indemnified Party may
have at common law hereunder or otherwise, and shall remain in f force
and effect following the expiration or termination of the Buyer's
engagement and shall be binding on any successors or assigns of the
Seller and successors or assigns to all or substantially all of the
Seller's business or assets.
5. Notice. All communications hereunder, except as may be otherwise specifically
provided herein, shall be in writing and halt be deemed to have been delivered:
(i) upon receipt, when delivered personally, (ii) upon receipt, when sent by
facsimile transmission (provided confirmation of transmission is mechanically or
electronically generated and kept on file by the sending party); or (iii) on the
next business day after deposit with a nationally recognized overnight courier
with next delivery guaranteed. The address and facsimile numbers for such
communications shall be:
To the Seller: 0000 Xxxxx Xxxxxxx, Xxxx X
Xxxxxx, Xxxxxxxxxx 00000
Telephone (000) 000-0000
With a Copy to: Xxxxxxxx X. Xxxxx, Esq.
Yocca Patch & Yocca, LISP
00000 XxxXxxxxx Xxxx. Xxxxx 000
Xxxxxx, Xxxxxxxxxx 00000
Telephone (000) 000-0000
To the Buyer: as set forth on the signature page hereto.
6. Jurisdiction. This Agreement shall be governed by and interpreted in
accordance with the laws of the State of New York for contracts to be wholly
performed in such state and without giving effect to the principles thereof
regarding the conflict of laws. Each of the parties consents to the exclusive
jurisdiction of the federal courts whose districts encompass any part of the
City of New York or the state courts of the State of New York sitting in the
City of New York in connection with any dispute arising under this Agreement and
hereby waives, to the maximum extent permitted by law, any objection based on
forum non conveniens, to the bringing of any such proceeding in such
jurisdiction. To the extent determined by such court, the prevailing party shall
reimburse the other party for any reasonable legal fees and disbursements
incurred in enforcement of; or protection of any of its rights under this
Agreement.
7. Confidentiality. The Seller agrees that it will not disclose, and will not
include in any public announcement, the name of the Buys, unless expressly
agreed to by the Buyer or unless and until such disclosure is required by law or
applicable regulation, and then only to the extant of such requirement.
8. Miscellaneous.
a) This Subscription constitutes the attire understanding and agreement
between the parties with respect to its subject matter and there are no
agreements or understandings with respect to the subject matter hereof
which are not contained in this Subscription. This Subscription may be
modified only in writing signed by the xxxxx to be charged hereunder.
b) This Subscription may be executed in any numbs of counterparts, all
of which taken together shall constitute one and the same instrument
and shall become effective when counterparts have been signed by each
party and delivered to the other parties hereto, it being understood
that all parties need not sign the same counterpart. Execution may be
made by delivery by facsimile.
c) The provisions of this Subscription are severable and, in the event
that any court or officials of any regulatory agency of competent
jurisdiction shall determine that any one or more of the provisions or
part of the provisions contained in this Subscription shall, for any
reason, be held to be Invalid, illegal or unenforceable in any respect
such invalidity, illegality or unenforceability shall not affect any
other provision or part of a provision of this Subscription and this
Subscription shall be reformed and construed as if such invalid or
illegal or unenforceable provision, or part of such provision, had
never been contained herein, so that such provisions would be valid,
legal and enforceable to the maximum extent possible, so long as such
construction does not materially adversely effect the economic rights
of either party hereto.
d) The Company hereby covenants that it will not sell any of its common
stock registered under the Registration Statement for a period of three
weeks from the date hereof.
If the foregoing correctly sets forth our agreement, please confirm
this by signing and returning to us the duplicate copy of this letter.
AGREED AND ACCEPTED:
SELLER:
HIENERGY TECHNOLOGIES, INC.
By: /s/ X.X. XXXXXXX
----------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Chairman, CEO and Treasurer
AGREED AND ACCEPTED
BUYER:
GREENWICH GROWTH FUND LTD.
By: /s/ X. XXXXXXXXXXX
--------------------------
Name: Xxxx Xxxxxxxxxxx
Title: Director
Addresses for Notice:
X/x Xxxxxxxxxxxx Xxxx Xxxxxxxxxx Xxx.
X.X. Xxx XX 0000
Xxxxxxxx, Xxxxxxx
HMIX Attn: Xxxx Xxxxxxxxxxx
DTC Instructions:
Canaccord Capital Corp.
A/C Name: Greenwich Growth Fund
A/C 31F 607F7
DTC: 5046
