Exhibit 10.72
ESCROW AGREEMENT
This ESCROW AGREEMENT (this "Agreement") is made as of
________, 2003, by and among HiEnergy Technologies, Inc., a Delaware corporation
(the "Seller"), the buyer of the Seller's securities as set forth on the
signature page hereto or any permitted assignee of such person (the
"Purchaser"), and Yocca Patch & Yocca, LLP, having an address at 00000 XxxXxxxxx
Xxxx., Xxxxx 000, Xxxxxx, Xxxxxxxxxx 00000 (the "Escrow Agent"). CAPITALIZED
TERMS USED BUT NOT DEFINED HEREIN SHALL HAVE THE MEANINGS SET FORTH IN THE STOCK
PURCHASE AGREEMENT REFERRED TO IN THE FIRST RECITAL.
WHEREAS, the Purchaser will purchase from the Seller for
$_____ in cash (the "Purchase Price") a total of _____ shares of authorized and
previously unissued Common Stock, par value $0.001, of the Seller (the "Shares")
plus a warrant to purchase an additional _____ shares of authorized and
previously unissued Common Stock, par value $0.001, of the Seller (the
"Warrant") pursuant to the Stock Purchase Agreement (the "Purchase Agreement")
entered into between the Purchaser and the Seller, and such Shares and Warrants
shall be sold and issued pursuant to the terms and conditions contained in the
Purchase Agreement; and
WHEREAS, the Seller and the Purchaser have requested that the
Escrow Agent hold in escrow the applicable purchase price pending receipt by the
Purchaser of the Shares and the Warrant issuable pursuant to the Purchase
Agreement;
NOW, THEREFORE, in consideration of the covenants and mutual
promises contained herein and other good and valuable consideration, the receipt
and legal sufficiency of which are hereby acknowledged and intending to be
legally bound hereby, the parties agree as follows:
ARTICLE I
TERMS OF THE ESCROW
1.1 On the date that the Seller and the Purchaser enter into
the Purchase Agreement, the Purchaser shall send the Purchase Price of the
Shares, as set forth on the signature pages hereto (the "Purchase Payment"), to
the Escrow Agent.
1.2 Seller shall promptly thereafter, but not more than one
(1) Trading Day after Escrow Agent's receipt of the Purchase Payment from or on
behalf of the Purchaser, cause its transfer agent or intermediary to issue the
Shares issuable to the Purchaser by delivery of a duly executed stock
certificate representing the Shares and cause the Warrant to be delivered to
Purchaser directly or through an agent or intermediary.
1.3 Upon receipt of written confirmation that the Shares and
Warrant have been delivered, the Escrow Agent shall, as promptly as reasonably
practicable, wire or pay 100% of the Purchase Payment to the Seller per the
wiring or other instructions of the Seller.
1.4 In the event that, within three (3) Trading Days of the
date of the Escrow Agent's notice that the Purchase Price was received, the
applicable Shares and Warrant are not received by Purchaser, then the Purchaser
1
shall have the right to demand, by notice to the Escrow Agent and the Seller,
the return of the full Purchase Payment, and, at the election of the Purchaser,
the Purchase Agreement with the Purchaser shall be deemed null and void.
1.5 Purchaser hereby appoints _________ as his agent and
attorney-in-fact for purposes of giving notices and receipts of notices under
this Agreement, and the Escrow Agent may rely upon instructions or other
communications received from such attorney in fact as if such instructions or
communications were received directly from Purchaser.
1.6 Wire transfers to the Escrow Agent shall be made as
follows:
Account Name: Attorney Client Trust Account
Account Number: 1664304022
Routing Number: 000000000
Bank: Bank of America
Irvine Industrial Branch
0000 XxxXxxxxx Xxxxxxxxx
Xxxxxxx Xxxxx, XX 00000
Bank Contact: Xxxx X. Xxx, Senior Bank Officer
(000) 000-0000
ARTICLE II
MISCELLANEOUS
2.1. No waiver or any breach of any covenant or provision
herein contained shall be deemed a waiver of any preceding or succeeding breach
thereof, or of any other covenant or provision herein contained. No extension of
time for performance of any obligation or act shall be deemed an extension of
the time for performance of any other obligation or act.
2.2. All notices or other communications required or permitted
hereunder shall be in writing, and shall be sent by fax, overnight courier,
registered or certified mail, postage prepaid, return receipt requested, and
shall be deemed received upon receipt thereof, as set forth in the Purchase
Agreement.
2.3. This Agreement shall be binding upon and shall inure to
the benefit of the permitted successors and permitted assigns of the parties
hereto.
2.4. This Agreement is the final expression of, and contains
the entire agreement between, the parties with respect to the subject matter
hereof and supersedes all prior understandings with respect thereto. This
Agreement may not be modified, changed, supplemented or terminated, nor may any
2
obligations hereunder be waived, except by written instrument signed by the
parties to be charged or by their respective agents duly authorized in writing
or as otherwise expressly permitted herein.
2.5. Whenever required by the context of this Agreement, the
singular shall include the plural and masculine shall include the feminine. This
Agreement shall not be construed as if it had been prepared by one of the
parties, but rather as if both parties had prepared the same. Unless otherwise
indicated, all references to Articles are to this Agreement.
2.6. The parties hereto expressly agree that this Agreement
shall be governed by, interpreted under and construed and enforced in accordance
with the laws of the State of Delaware. Except as expressly set forth herein,
any action to enforce, arising out of, or relating in any way to, any provisions
of this Agreement shall be brought in the Federal or state courts of Delaware is
more fully set forth in the Purchase Agreement.
2.7. The Escrow Agent's duties hereunder may be altered,
amended, modified or revoked only by a writing signed by the Seller, Purchaser
and the Escrow Agent.
2.8. The Escrow Agent shall be obligated only for the
performance of such duties as are specifically set forth herein and may rely and
shall be protected in relying or refraining from acting on any instrument
reasonably believed by the Escrow Agent to be genuine and to have been signed or
presented by the proper party or parties. The Escrow Agent shall not be
personally liable for any act the Escrow Agent may do or omit to do hereunder as
the Escrow Agent while acting in good faith, excepting only its own gross
negligence or willful misconduct, and any act done or omitted by the Escrow
Agent pursuant to the advice of the Escrow Agent's attorneys-at-law (other than
Escrow Agent itself) shall be conclusive evidence of such good faith.
2.9. The Escrow Agent is hereby expressly authorized to
disregard any and all warnings given by any of the parties hereto or by any
other person or corporation, excepting only orders or process of courts of law
and is hereby expressly authorized to comply with and obey orders, judgments or
decrees of any court. In case the Escrow Agent obeys or complies with any such
order, judgment or decree, the Escrow Agent shall not be liable to any of the
parties hereto or to any other person, firm or corporation by reason of such
decree being subsequently reversed, modified, annulled, set aside, vacated or
found to have been entered without jurisdiction.
2.10. The Escrow Agent shall not be liable in any respect on
account of the identity, authorization or rights of the parties executing or
delivering or purporting to execute or deliver the Purchase Agreement or any
documents or papers deposited or called for thereunder or hereunder.
2.11. The Escrow Agent shall be entitled to employ such legal
counsel and other experts as the Escrow Agent may deem necessary properly to
advise the Escrow Agent in connection with the Escrow Agent's duties hereunder,
may rely upon the advice of such counsel, and may pay such counsel reasonable
compensation therefor. THE ESCROW AGENT ACTS AS LEGAL COUNSEL FOR THE SELLER,
AND SHALL CONTINUE TO ACT AS LEGAL COUNSEL FOR THE SELLER, NOTWITHSTANDING ITS
DUTIES AS THE ESCROW AGENT HEREUNDER. THE SELLER COMPENSATES THE ESCROW AGENT
FOR PERFORMING DUTIES HEREUNDER. THE PURCHASER AND SELLER EACH CONSENTS TO THE
3
ESCROW AGENT IN SUCH CAPACITY AS LEGAL COUNSEL FOR THE SELLER AND WAIVES ANY
CLAIM THAT SUCH REPRESENTATION REPRESENTS A CONFLICT OF INTERESTS ON THE PART OF
THE ESCROW AGENT. THE SELLER AND PURCHASER EACH UNDERSTAND THAT THE SELLER AND
THE ESCROW AGENT ARE RELYING EXPLICITLY ON THE FOREGOING PROVISION IN ENTERING
INTO THIS AGREEMENT.
2.12. The Escrow Agent's responsibilities as escrow agent
hereunder shall terminate if the Escrow Agent shall resign by written notice to
the Seller and the Purchaser. In the event of any such resignation, the
Purchaser and the Seller shall appoint a successor Escrow Agent.
2.13. If the Escrow Agent reasonably requires other or further
instruments in connection with this Agreement or obligations in respect hereto,
the necessary parties hereto shall join in furnishing such instruments.
2.14. It is understood and agreed that should any dispute
arise with respect to the delivery and/or ownership or right of possession of
the documents or the escrow funds held by the Escrow Agent hereunder, the Escrow
Agent is authorized and directed to deliver the escrow funds and any other
property and documents held by the Escrow Agent hereunder to a state or Federal
court having competent subject matter jurisdiction and located in the State of
Delaware in accordance with the applicable procedure therefor.
2.15. The Seller and the Purchaser agree jointly and severally
to indemnify and hold harmless the Escrow Agent and its partners, employees,
agents and representatives from any and all claims, liabilities, costs or
expenses in any way arising from or relating to the duties or performance of the
Escrow Agent hereunder or the transactions contemplated hereby or by the
Purchase Agreement other than any such claim, liability, cost or expense to the
extent the same shall have been determined by final, unappealable judgment of a
court of competent jurisdiction to have resulted from the gross negligence or
willful misconduct of the Escrow Agent.
2.16. The execution of this Agreement and delivery and
exchange of signed copies by facsimile, in one or more counterparts, 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.
[SIGNATURES ON FOLLOWING PAGE]
4
IN WITNESS WHEREOF, the parties hereto have executed this
Escrow Agreement as of the date first indicated above.
SELLER: ESCROW AGENT:
HIENERGY TECHNOLOGIES, INC. YOCCA PATCH & YOCCA, LLP
By: __________________________ By: _____________________________
Name: Xxxxxx X. Xxxxxxx Name: Xxxxxxxx X. Xxxxx
Title: Chairman, CEO and Treasurer Title: Partner
PURCHASER:
By:___________________________
Name:
Title:
5
