EXHIBIT 10.51
STOCK PURCHASE AGREEMENT
This STOCK PURCHASE AGREEMENT ("Agreement") is dated June 20, 2003
between Xxxxxxx Xxxxxx, an individual currently residing in the State of Georgia
("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 300,000 shares of the Company's authorized and previously
unissued common stock, par value $0.001 per share (the "Shares"), at a price of
$0.33 1/3 per share, for an aggregate purchase price of $100,000.00 (the
"Purchase Price").
2. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company hereby makes the
following representations and warranties to the Purchaser:
(A) REGISTERED OFFERING. The offer and sale of the Shares have been
registered on a Form SB-2 registration statement, Registration No.
333-101055 ("Registration Statement"), which Registration Statement has
been declared effective by the Securities and Exchange Commission (the
"Commission") and the Company has not received notice that the
Commission has issued or intends to issue a stop order with respect to
the Registration Statements or that the Commission otherwise has
suspended or withdrawn the effectiveness of the Registration Statements,
either temporarily or permanently, or intends or has threatened in
writing to do so. The Company has delivered to Purchaser by electronic
means the prospectus that constitutes a part of the Registration
Statement, and Purchaser consents to electronic delivery of the
prospectus.
(B) 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.
(C) 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 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.
(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 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. No assurance is
intended as to the potential effects of the Company's Series A Preferred
Stock Most Favored Nation provision.
(E) ISSUANCE OF THE SHARES. The Shares are duly authorized and, when
issued and paid for in accordance with the terms hereof, will be legally
issued, fully paid and nonassessable, and issued without restrictive
legend of any kind, 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:
(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 REPRESENTATION. The Purchaser is not party to any
agreement or arrangement with respect to a disposition of Shares other
than this Agreement. The Purchaser is not registered as a broker-dealer
under the Exchange Act. The Purchaser is purchasing the Shares for the
Purchaser's own account, for investment purposes only and not with a
view to distribute or participate in a distribution thereof; provided,
that the foregoing representation and warranty is not an agreement by
the Purchaser to hold the Shares for any period of time.
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.
Purchaser, in its sole and absolute discretion, shall have until 12:00 noon
Eastern Time on the second (2nd) Trading Day following its transfer of funds to
the Escrow Agent to notify the Escrow Agent in writing of Purchaser's intention
to consummate the Purchase. If such notice is not received timely, the Escrow
agent shall promptly wire the payment back to the Purchaser, and this Agreement
shall be null and voice and of no force or effect whatsoever. If such notice is
received, 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 to the Purchaser, via the Purchaser's DTC Account through
the Depository Trust Company DWAC system, 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 product of the number of Shares that it is acquiring,
multiplied by the Per Share Purchase Price for such Shares, via wire transfer of
immediately available funds to an account designated in writing by the Company
for such purpose. The term "Closing Day" shall mean the first date that the
Company can deliver the Shares.
5. 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.
6. 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.
7. 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.
[SIGNATURE PAGE FOLLOWS]
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/ Xxxxxx X. Xxxxxxx
----------------------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Chairman, Chief Executive Officer and Treasurer
PURCHASER:
By: /s/ Xxxxxxx Xxxxxx
-------------------
Name: Xxxxxxx Xxxxxx, an individual
---------------
