EXHIBIT 10.25
SUBSCRIPTION AGREEMENT
THIS COMMON STOCK SUBSCRIPTION AGREEMENT (the "Agreement") is made by and
between HIENERGY TECHNOLOGIES, INC. (the "Issuer"), a Washington corporation,
and the subscriber executing this agreement (the "Subscriber").
1. SUBSCRIPTION OF COMMON STOCK.
1.1 Purchase and Sale of Securities. Subject to the terms and conditions of
this Agreement, the Subscriber agrees to subscribe, and the Issuer agrees to
issue to the Subscriber, the number of shares of common stock of the Issuer (the
"Common Stock") referred to in Section 11.4 of this Agreement. No less than
18,519 shares of Common Stock, a minimum investment of $25,000, may be purchased
by the Subscriber, unless the Issuer decides in its sole discretion to accept
less than 18,519 shares. The shares of Common Stock subscribed to hereby are
referred to collectively herein as the "Shares." All references to "Dollars" or
"$" in this Agreement refer to U.S. Dollars.
1.1.1 The purchase price of the Common Stock is $1.35 per share and
the total amount due to the Issuer hereunder is the amount referred to
in Section 11.4 of this Agreement (the "Purchase Price").
1.1.2 The maximum number of shares that may be sold to all Subscribers
is 1,500,000 shares (the "Maximum Shares") and there is no minimum number of
shares that must be sold. The Maximum Shares may be amended by the Issuer at any
time, in its sole discretion without limitation. The Subscriber acknowledges
that the Issuer has entered into or may enter into agreements similar to this
Agreement with other persons in respect of the sale of Common Stock in addition
to the sale of the Maximum Shares described in this Agreement. The Subscriber
agrees to pay to the Issuer the Purchase Price. The Issuer may choose to issue
the Common Stock subscribed to hereunder at any time after the Common Stock has
been subscribed, until the Issuer closes the offering. The Issuer may accept any
subscription in whole or in part. To the extent that any subscription is not
accepted by the Issuer, the Issuer shall cause any related funds to be promptly
returned to the Subscriber, without interest. The obligations assumed by the
Subscriber by virtue of this Agreement, except as otherwise provided herein,
shall remain in force until the earlier to occur of (i) the issuance of the
Common Stock or (ii) the Closing. Notwithstanding the foregoing, all
representations, warranties and covenants of the Subscriber herein shall survive
the Issuance of the Common Stock and the Final Closing Date.
1.2 Closing. The closing of the sale of the Common Stock hereunder will
occur upon satisfaction of all conditions described in this Agreement (the
"Closing"). The Issuer may conduct one or more additional closings until the
Maximum Shares have been sold. The final closing of the offering shall occur no
later than October 31, 2002 (the "Closing Date").
1.3 Warrants. The Company agrees to issue to the Subscriber a Warrant to
purchase twenty percent (20%) of the number of shares of Common Stock that the
Subscriber is purchasing as set forth in Section 11.4 (proportionately reduced
if the Company accepts the Subscriber's subscription in part). The Warrants
shall have an exercise price equal to the Warrant Price (as defined in the
HIENERGY TECHNOLOGIES, INC. - SUBSCRIPTION AGREEMENT
PAGE 1
Warrants) and shall expire on the third (3rd) anniversary of the date of
issuance, and be substantially in the form attached to the First Amended and
Restated Confidential Private Placement Memorandum as Exhibit H.
2. USE OF PROCEEDS.
The proposed use of proceeds of this offering will be for sales and
marketing, working capital, general corporate purposes and to facilitate
acquisitions. The Issuer may re-allocate the proceeds in its sole discretion.
3. REPRESENTATIONS AND WARRANTIES OF ISSUER.
3.1 The Issuer hereby represents and warrants to the Subscriber as follows:
3.1.1 Organization, Good Standing and Qualification. The Issuer is a
corporation duly organized, validly existing and in good standing under the laws
of the State of Delaware.
3.1.2 Valid Issuance of Common Stock. The Common Stock, when issued and
delivered in accordance with the terms hereof for the consideration expressed
herein, will be validly issued and outstanding, fully paid and nonassessable.
3.1.3 Reporting Issuer. The Issuer is subject to the reporting requirements
of the Securities Exchange Act of 1934, as amended (the "'34 Act").
3.1.4 No Market Conditioning. The Issuer undertook no activity for the
purpose of, or that could reasonably be expected to have the effect of,
conditioning the market in the United States for the Common Stock. The Issuer
did not place any advertisements in any publication referring to the offering of
the Common Stock for sale.
4. REPRESENTATIONS AND WARRANTIES OF SUBSCRIBER.
4.1 The Subscriber hereby represents and warrants to the Issuer as follows:
4.1.1 Authority of Subscriber. The Subscriber, if a corporation,
partnership, trust, or any other entity than a natural person, represents that
the subscription of the Common Stock referred to in this Agreement does not
contravene its charter or other organizational documents or the laws of the
country, state or province of its incorporation, formation or organization or of
any other relevant jurisdiction. The Subscriber also represents that it has the
necessary authorizations to that effect.
Investment Experience. The Subscriber has such knowledge
and experience in financial and business matters that it is capable of
evaluating the merits and risks of the prospective investment in the Common
Stock, which are substantial and has in fact evaluated such merits and risks in
making its investment decision to purchase the Common Stock. The Subscriber, by
virtue of its business and financial expertise, has the capacity to protect its
own interest in connection with this transaction, or has consulted with tax,
financial, legal or business advisors as to the appropriateness of an investment
in the Common Stock. The Subscriber has not been organized for the purpose of
investing in the Common Stock, although such investment is consistent with its
purposes.
HIENERGY TECHNOLOGIES, INC. - SUBSCRIPTION AGREEMENT
PAGE 2
Access to Information. The Subscriber or its professional
advisor has been granted the opportunity to conduct a full and fair examination
of the records, documents and files of the Issuer, to ask questions of and
receive answers from representatives of the Issuer, its officers, directors,
employees and agents concerning the terms and conditions of this offering, the
Issuer and its business and prospects, and to obtain any additional information
which the Subscriber or its professional advisor deems necessary to verify the
accuracy of the information received. The Subscriber further represents that it
has had an opportunity to ask questions and receive answers from the Issuer
regarding the terms and conditions of the offering, and any information so
requested has been made available to the full and complete satisfaction of the
Subscriber. The Subscriber hereby confirms that it has received and examined all
material information it considers necessary to make an informed decision to
invest in the Common Stock. The Subscriber hereby confirms that, in addition to
examining other information it requested during the course of its due diligence,
it has examined all of the Issuer's filings under the '34 Act, including its
financial statements, and the Company's First Amended and Restated Confidential
Private Placement Memorandum.
4.1.4 Accredited Investor.
(1) Entity Accredited Investor. If the Subscriber is an entity, then
the Subscriber is (check applicable box):
(a) [ ] a bank as defined in Section 3(a)(2) of the Securities Act of
1933, as amended (the "Act"), or a savings and loan
association or other institution as defined in Section
3(a)(5)(A) of the Act acting in either an individual or
fiduciary capacity.
(b) [ ] an insurance company as defined in Section 2(13) of the Act.
(c) [ ] an investment company registered under the Investment Company
Act of 1940 or a business development company as defined in
Section 2(a)(48) of that Act.
(d) [ ] a Small Business Investment Issuer licensed by the U.S. Small
Business Administration under Section 301(c) or (d) of the
Small Business Investment Act of 1958.
(e) [ ] a plan established and maintained by a state, its political
subdivisions or any agency or instrumentality of a state or
its political subdivisions for the benefit of its employees,
if such plan has total assets in excess of $5,000,000.
HIENERGY TECHNOLOGIES, INC. - SUBSCRIPTION AGREEMENT
PAGE 3
(f) [ ] an employee benefit plan within the meaning of Title 1 of the
Employee Retirement Income Security Act of 1974, and the
investment decision is made by a plan fiduciary, as defined
in Section 3(21) of such Act, which is either a bank,
savings and loan association, insurance company or
registered investment advisor, or an employee benefit plan
having total assets in excess of $5,000,000 or, if a
self-directed plan, with investment decisions made solely by
persons who are Accredited Investors.
(g) [ ] a private business development company as defined in Section
202(a)(22) of the investment Advisors Act of 1940.
(h) [ ] a corporation, an organization described in Section 501(c)(3)
of the Internal Revenue Code of 1986, a Massachusetts or
similar business trust, or a partnership not formed for the
specific purpose of acquiring the Common Stock, with total
assets in excess of $5,000,000.
(J) [ ] any trust with total assets in excess of $5,000,000 not
formed for the specific purpose of acquiring the Common
Stock, whose purchase is directed by a sophisticated person,
who has such knowledge and experience in financial and
business matters that he is capable of evaluating the merits
and risks of the prospective investment.
(j) [ ] a broker or dealer registered pursuant to Section 15 of the
Securities Exchange Act of 1934, as amended (the
"34 Act").
(k) [ ] none of the above see below.
(l) [ ] If the Subscriber is an entity and checked the box for "none
of the above" in Section 4.1.4(1)(k), then the Subscriber is
an entity each equity owner of which is an individual who
could check one of the first three boxes in Section 4.1.4(2)
below.
______
(Initial)
(2) Individual Subscriber. If the Subscriber is an individual, then
the Subscriber (check an applicable box):
(a) [ ] is a director or executive officer of the Issuer.
(b) [ ] has an individual net worth, or joint net worth with that
person's spouse, at the time of his purchase exceeding
$1,000,000.
HIENERGY TECHNOLOGIES, INC. - SUBSCRIPTION AGREEMENT
PAGE 4
(c) [ ] had an individual income in excess of $200,000 in each of the
two most recent years or joint income with that person's
spouse in excess of $300,000 in each of those years and has
a reasonable expectation of reaching the same income level
in the current year.
(d) [ ] none of the above.
______
(Initial)
4.1.5 Citizenship of Subsriber.
[ ] The Subscriber resides in the United States.
[ ] The Subscriber resides outside the United States and all of
the following applies:
neither the Subscriber nor its beneficial owner[s], as
determined pursuant to Rule 13d-3 under the '34 Act, was a
citizen of the United States at the time it received the
offer to purchase the Common Stock, or at the Closing of the
purchase of the Common Stock;
the Subscriber was not in the United States at the time its
buy order was originated; and
the Subscriber did not acquire the Common Stock for the
account or benefit of any U.S. person.
______
(Initial)
4.1.6 No Distributor, Dealer or Underwriter. The Subscriber is not a
distributor or dealer of the Common Stock. The Subscriber is not taking the
Common Stock with the intent of making a distribution of the Common Stock, as
such terms are defined in the Act and the '34 Act. In any event, if the
Subscriber is deemed to be the distributor of the Common Stock offered hereby,
the Subscriber will act in accordance with applicable law.
4.1.7 Investment Intent. The Subscriber is acquiring the Common Stock
for its own account and for investment purposes and not for sale or with a view
to distribution of all or any part of such Common Stock and has no present plans
to enter into any contract, undertaking, agreement or arrangement for such
resale or distribution.
4.1.8 No Immediate Need for Liquidity. The Subscriber understands that
the Common Stock is a "restricted security" within the meaning of the Act, and
certificates representing the Common Stock are legended with certain
restrictions on the resale of the Common Stock and the Common Stock may not be
resold without a valid exemption from registration under the Act, or until a
registration statement is filed with respect thereto under the Act. There can be
no assurance that upon registration of the Common Stock pursuant to the Act,
that a market for the Common Stock will exist on an exchange or market or
quotation system. Accordingly, the Subscriber is aware that there are legal and
practical limits on the Subscriber's ability to sell or dispose of the Common
Stock, and, therefore that the Subscriber must bear the economic risk of the
investment for an indefinite period of time. The Subscriber has adequate means
of providing for the Subscriber's current needs and possible personal
contingencies and has need for only limited liquidity of this investment. The
Subscriber's commitment to illiquid investments is reasonable in relation to the
Subscriber's net worth. The Subscriber is capable of bearing the high degree of
economic risks and burdens of this investment, including but not limited to the
possibility of complete loss of all its investment capital and the lack of a
liquid market, such that it may not be able to liquidate readily the investment
whenever desired or at the then current asking price.
HIENERGY TECHNOLOGIES, INC. - SUBSCRIPTION AGREEMENT
PAGE 5
4.1.9 Exempt Subscription. The Subscriber understands that the Common
Stock is being offered and sold in reliance on specific exemptions from the
registration requirements of U.S. federal and state law and that the
representations, warranties, agreements, acknowledgments and understandings set
forth herein are being relied upon by the Issuer in determining the
applicability of such exemptions and the suitability of the Subscriber to
acquire such Common Stock.
4.1.10 Authority of Signatory. The Subscriber has full power and
authority to execute and deliver this Agreement and each other document included
herein as an exhibit to this Agreement for which signature is required, and the
person executing this Agreement on behalf of the subscribing individual,
partnership, trust, estate, corporation or other entity executing this Agreement
is a duly authorized signatory. If the signatory of this Agreement on behalf of
the Subscriber is not the Subscriber or an authorized officer or partner of the
Subscriber, the signatory represents and warrants to the Issuer that the
signatory is a professional fiduciary of the Subscriber, acting solely in its
capacity as holder of such account, as a fiduciary, executor or trustee.
4.1.11 Private Transaction. At no time was the Subscriber presented
with or solicited by any leaflet, public promotional meeting, circular,
newspaper or magazine article, radio or television advertisement or any other
form of general advertising.
4.1.12 Reliance on Own Advisors. The Subscriber has relied completely
on the advice of, or has consulted with, its own personal tax, investment, legal
or other advisors and has not relied on the Issuer or any of its affiliates,
officers, directors, attorneys, accountants or any affiliates of any thereof and
each other person, if any, who controls any thereof, within the meaning of
Section 15 of the Act, except to the extent such advisors shall be deemed to be
as such.
HIENERGY TECHNOLOGIES, INC. - SUBSCRIPTION AGREEMENT
PAGE 6
5. COVENANTS AND ACKNOWLEDGMENTS OF SUBSCRIBER.
5.1 Covenants of Subscriber. The Subscriber shall not make any sale,
transfer or other disposition of the Common Stock in violation of the Act or the
'34 Act, or any other applicable securities laws, or the rules and regulations
of the U.S. Securities and Exchange Commission (the "SEC") or of any securities
authority of any jurisdiction in which the sale, transfer or disposition of all
or any portion of the Common Stock unless and until (i) there is then in effect
a registration statement under the Act covering such proposed sale, transfer or
disposition and such disposition is made in accordance with such registration
statement; or (ii) the sale, transfer or disposition is made pursuant to a valid
exemption from the registration and prospectus delivery requirements of
applicable securities laws.
5.2 Acknowledgments of Subscriber. The Subscriber acknowledges and
understands as follows:
5.2.1 Sole Basis of Decision to Invest. The Subscriber acknowledges
that its decision to invest in the Issuer is solely based upon the confidential
private placement memorandum, the exhibits attached thereto, and any other
materials that the Issuer provides to the Subscriber in writing.
5.2.2 Risks of Investment. The Subscriber recognizes that investment
in the Issuer involves certain risks, including the potential loss of the
Subscriber's investment, and the Subscriber has taken full cognizance of and
understands all of the risk factors related to the purchase of the Common Stock.
The Subscriber or its representative has received and carefully examined and has
understood the risk factors described herein and set forth in the Issuer's
filings with the Securities and Exchange Commission. The Subscriber recognizes
that any documentation on the business of the Issuer provided to the Subscriber
does not purport to contain all the information that would be contained in a
registration statement under the Act.
5.2.3 No Government Approval. No federal or state agency or any other
government authority has passed upon the Common Stock or made any finding or
determination as to the fairness of this transaction.
5.2.4 Price. The price of the Common Stock was determined by the
Issuer and bears no relationship to the Issuer's assets, book value or results
of operation.
5.2.5 No Registration. The Common Stock and any component thereof has
not been registered under the Act or any securities laws of any other
jurisdiction by reason of exemptions from the registration requirements of the
Act and such laws, and may not be sold, pledged, assigned or otherwise disposed
of in the absence of an effective registration statement for the Common Stock
and any component thereof under the Act or unless an exemption from such
registration is available.
HIENERGY TECHNOLOGIES, INC. - SUBSCRIPTION AGREEMENT
PAGE 7
5.2.6 No Assurances of Registration. There can be no absolute
assurance that any registration statement will be filed with respect to the
Common Stock, or if filed, that such registration statement will become
effective. Therefore, unless an exemption from the registration requirements
under applicable law is available, the Subscriber may be required to bear the
economic risk of the Subscriber's investment for an indefinite period of time.
5.2.7 Legends. The certificates representing the Common Stock shall
bear the following legend:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED WITH THE U.S. SECURITIES AND EXCHANGE COMMISSION UNDER THE
U.S. SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR ANY OTHER
SECURITIES AUTHORITIES. THEY WERE ISSUED PURSUANT TO AN EXEMPTION FROM
REGISTRATION UNDER REGULATIONS PROMULGATED UNDER THE ACT. THEY MAY NOT
BE SOLD OR TRANSFERRED EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT OR AN EXEMPTION TO THE REGISTRATION REQUIREMENTS OF THOSE
SECURITIES LAWS.
The Issuer may in its sole discretion place a "Blue Sky" legend on the
certificates in accordance with U.S. State securities laws or as required by
applicable securities laws.
6. RESALES OF THE COMMON STOCK
If the Subscriber is not a U.S. person, the Issuer and the Subscriber agree
that the Issuer, through its transfer agent, shall refuse to register any
transfer or attempted transfer of the Common Stock not made in accordance with
the provisions of Regulation S under the Act, pursuant to registration under the
Act, or pursuant to an available exemption from registration. If the Subscriber
is not a U.S. person, the Subscriber agrees to resell the Common Stock only in
accordance with the provisions of Regulation S under the Act, pursuant to
registration under the Act, or pursuant to an available exemption from
registration and agrees not to engage in hedging transactions with regard to the
Common Stock unless in compliance with the Act.
7. REGISTRATION RIGHTS
The Subscriber shall have such registration rights as are provided in the
Registration Rights Agreement, the form of which is attached to the First
Amended and Restated Confidential Private Placement Memorandum as Exhibit G,
subject to the execution and Closing of this Agreement and the issuance of the
Common Stock and Warrant to the Subscriber.
8. TAXES
The Subscriber hereby agrees to be responsible for all of its taxes arising
out of this transaction, including any taxes from the issuance of the Common
Stock of the Issuer. If the Issuer has any obligation to withhold taxes on
behalf of the Subscriber, the Subscriber agrees to pay the taxes or indemnify
and reimburse the Issuer for any moneys paid on the Subscriber's behalf by the
Issuer. If the Subscriber fails to pay the taxes owed, or indemnify or reimburse
the Issuer for any liability resulting from such failure, the Issuer has the
power to stop the transfer of its Common Stock to the Subscriber or to reclaim
the Common Stock from the Subscriber to satisfy the tax liability. The
Subscriber hereby expressly appoints the President of the Issuer or its
successor as its attorney for purposes of enforcing this provision, with full
power of substitution in the premises.
HIENERGY TECHNOLOGIES, INC. - SUBSCRIPTION AGREEMENT
PAGE 8
9. APPLICABLE LAW AND JURISDICTION
9.1 This Agreement shall be governed by and construed in accordance with
the laws of the State of California, without regard to conflicts of law
principles. This Agreement shall not interpreted or construed with any
presumption against the party causing this Agreement to be drafted.
9.2 Each of the Issuer and the Subscriber (i) hereby irrevocably submits to
the jurisdiction of the United States District Court sitting in the Southern
District of Los Angeles and the courts of the State of California located in
Orange County for the purposes of any suit, action or proceeding arising out of
or relating to this Agreement or any other transactions contemplated hereby and
(ii) hereby waives, and agrees not to assert in any such suit, action or
proceeding, any claim that it is not personally subject to the jurisdiction of
such court, that the suit, action or proceeding is brought in an inconvenient
forum or that the venue of the suit, action or proceeding is improper. Each of
the Issuer and the Subscriber consents to process being served in any such suit,
action or proceeding by mailing a copy thereof to such party at the address in
effect for notices to it under this Agreement and agrees that such service shall
constitute good and sufficient service of process and notice thereof. Nothing in
this Section 9.2 shall affect or limit any right to serve process in any other
manner permitted by law.
9.3 In the event of any dispute, controversy, claim or difference that
should arise between the parties out of or relating to or in connection with
this Agreement or the breach thereof, the parties shall endeavor to settle such
conflicts amicably among themselves. Should they fail to do so, the matter in
dispute shall be settled by arbitration in Orange County, California, in
accordance with the rules of the American Arbitration Association. Any award or
judgment of the arbitrators shall be final and binding on the parties and shall
be enforceable in any court of competent jurisdiction. All reasonable attorneys'
fees incurred by the prevailing party in the resolution of any dispute,
controversy, claim or difference hereunder shall be borne by the losing party.
10. NOTICES
Any notice, demand, request, waiver or other communication required or permitted
to be given hereunder shall be in writing and shall be effective (a) upon hand
delivery, (b) by telex (with correct answer back received), telecopy or
facsimile at the address or number designated below (if delivered on a business
day during normal business hours where such notice is to be received), or the
first business day following such delivery (if delivered other than on a
business day during normal business hours where such notice is to be received),
or (c) on the second business day following the date of mailing by express
courier service, fully prepaid, addressed to such address, or upon actual
receipt of such mailing, whichever shall first occur. The addresses for all
communications between the parties under the Agreement shall be sent, if to the
Issuer, to:
HIENERGY TECHNOLOGIES, INC. - SUBSCRIPTION AGREEMENT
PAGE 9
HiEnergy Technologies, Inc.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇ ▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: President
Phone: ▇▇▇.▇▇▇.▇▇▇▇
Fax: ▇▇▇.▇▇▇.▇▇▇▇
and to the address indicated on the signature page hereto, if to the Subscriber.
No change of address shall be valid unless it is communicated in writing to the
other party with at least five business days notice.
11. SUBSCRIPTION INFORMATION.
11.1 Irrevocable Subscription. The Subscriber hereby acknowledges and
agrees that this Agreement is irrevocable and that, except as provided herein,
the Subscriber is not entitled to cancel, terminate or revoke this Agreement,
and this Agreement shall survive the death or disability of the Subscriber and
shall be binding upon and inure to the benefit of the Subscriber and the
Subscriber's respective heirs, executors, administrators, successors, legal
representatives and assigns.
11.2 Issuer's Right to Accept in Part or to Reject Subscription. The
Subscriber hereby confirms that the Issuer has full right in its sole discretion
to accept or reject the subscription of the Subscriber, in whole or in part,
provided that, if the Issuer decides to reject such subscription, the Issuer
must do so promptly and in writing. In the case of a rejection or an acceptance
in part, any payments will be promptly returned (without interest) to the
Subscriber.
11.3 Acceptance of Subscription. In the case of acceptance of the
Subscriber's subscription by the Issuer, but not before the Closing and in no
event later than 15 days following the relevant Closing, unless such period is
extended with the consent of the Subscriber, the Common Stock subscribed for in
accordance with this Agreement and the Warrant will be issued to the Subscriber.
11.4 Number of Shares Subscribed for and Purchase Price. The Subscriber
hereby subscribes for ______ shares of Common Stock for an aggregate total
amount of US$ ______ (the "Purchase Price"). The Subscriber authorizes the
Issuer to correct any errors in determining the number of shares or the Purchase
Price in this Section 11.4.
11.5 Subscription. The Subscriber must do the following in order to
subscribe:
(a) complete and execute this Agreement and deliver it to HiEnergy
Technologies, Inc., Attn: President, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇ ▇, ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇; and
(b) deliver the Purchase Price, as designated in Section 11.4 herein,
to HiEnergy Technologies, Inc. pursuant to the wiring instructions, a copy of
which accompanies the Confidential Private Placement Memorandum as Exhibit B.
HIENERGY TECHNOLOGIES, INC. - SUBSCRIPTION AGREEMENT
PAGE 10
12. MISCELLANEOUS.
12.1 Severability. The provisions of this Agreement are severable and, in
the event that any court of competent jurisdiction shall determine that any one
or more of the provisions or part of the provisions contained in this Agreement
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 Agreement and 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.
12.2 Counterparts and Facsimile Signature. This Agreement may be signed in
counterparts, all of which when taken together shall constitute a single
executed document. Signatures transmitted by facsimile shall be deemed valid
execution of this Agreement binding on the parties.
12.3 Entire Agreement; Amendment. This Agreement constitutes the entire
agreement among the parties concerning the subject matter of this Agreement, and
it supersedes any prior oral or written agreements between the parties. A
separate writing may inform the construction of the provisions of this Agreement
if expressly called for by the terms of this Agreement. This Agreement may not
be amended except by a written agreement signed by the party against which
enforcement is sought.
12.4 No Third Party Beneficiaries. This Agreement is intended for the
benefit of the parties hereto and their respective permitted successors and
assigns and is not for the benefit of, nor may any provision hereof be enforced
by, any other person.
12.5 Waivers. The failure of a party to insist upon strict adherence to any
term of this Agreement on any occasion shall not be considered a waiver thereof
or deprive that party of the right thereafter to insist upon strict adherence to
that term or any other term of this Agreement.
12.6 Assignment. This Agreement shall inure to the benefit of and be
binding upon the parties hereto and their respective successors and assigns.
12.7 Headings. The section headings contained in this Agreement are for
reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK.]
HIENERGY TECHNOLOGIES, INC. - SUBSCRIPTION AGREEMENT
PAGE 11
INDIVIDUAL INVESTOR SIGNATURE PAGE
IN WITNESS WHEREOF, the undersigned Subscriber does represent and certify
under penalty of perjury that the foregoing statements are true and correct and
that by the following signature(s) executed this Agreement on the date marked
below.
SUBSCRIBER: JOINT SUBSCRIBER (if purchasing jointly):
______________________________ ______________________________
Date Date
______________________________ ______________________________
Signature Signature
______________________________ ______________________________
Name Typed or Printed Name Typed or Printed
______________________________ ______________________________
Address Address
______________________________ ______________________________
City, State, Zip, Country City, State, Zip, Country
______________________________ ______________________________
Telephone Telephone
______________________________ ______________________________
Facsimile Facsimile
______________________________ ______________________________
Social Security # Social Security #
Name(s) in which securities should be issued:
_______________________________________
(Note: Securities will not be issued in a name other than the name of the
Subscriber(s) unless the Issuer receives satisfactory evidence that beneficial
ownership would not change.)
ISSUER USE ONLY:
This Subscription Agreement is agreed to and accepted [ ] IN FULL or [ ]
to the extent of _____________ shares of Common Stock as of
________________________, 2002.
HIENERGY TECHNOLOGIES, INC.
By: _______________________
Name: _____________________
Title: ____________________
HIENERGY TECHNOLOGIES, INC. - SUBSCRIPTION AGREEMENT
PAGE 12
ENTITY INVESTOR SIGNATURE PAGE
IN WITNESS WHEREOF, the parties have executed this Subscription
Agreement as of the day and year marked below.
______________________________ ______________________________
Name of Subscriber Number of Owners
______________________________ ______________________________
Address Date of Formation
______________________________ ______________________________
City, State, Zip, Country Tax ID# of Subscriber
______________________________ ______________________________
Telephone # Jurisdiction of Formation
______________________________
Facsimile #
______________________________ ______________________________
Signature Date
______________________________
Name (Typed or Printed) of Individual
Signing on Behalf of Institution
______________________________
Position or Title
Name in which securities should be issued: ___________________________________
(Note: Securities will not be issued in a name other than the name of the
Subscriber unless the Issuer receives satisfactory evidence that beneficial
ownership would not change.)
ISSUER USE ONLY:
This Subscription Agreement is agreed to and accepted [ ] IN FULL or [ ]
to the extent of _____________ shares of Common Stock as of
________________________, 2002.
HIENERGY TECHNOLOGIES, INC.
By:
Name:
Title:
HIENERGY TECHNOLOGIES, INC. - SUBSCRIPTION AGREEMENT
PAGE 13
CERTIFICATE OF SIGNATORY
(To be completed if the Common Stock is being subscribed for by an Entity
Investor)
I, _______________________________, am the________________________(position)
of ____________________________________________________________(the "Entity").
I certify that I am empowered and duly authorized by the Entity to execute
and carry out the terms of the Subscription Agreement and to purchase and hold
the Common Stock and certify further that the Subscription Agreement has been
duly and validly executed on behalf of the Entity and constitutes a legal and
binding obligation of the Entity.
IN WITNESS WHEREOF, I have set my hand this _____ day of _____________,
2002.
_______________________
(Signature)
Name (Printed):_______
Title: ________________
HIENERGY TECHNOLOGIES, INC. - SUBSCRIPTION AGREEMENT
PAGE 14