EXHIBIT 10.49
STOCK PURCHASE AGREEMENT
This STOCK PURCHASE AGREEMENT ("Agreement") is dated June 16, 2003
between Yocca Patch & Yocca, LLP ("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that the Commission otherwise has suspended or withdrawn the effectiveness of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 the
prospectus that constitutes a part of the Registration Statement.
(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 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.
(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, 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. If any such information whatsoever is provided
to Purchaser, knowledge thereof will not be imputed to any of Purchaser's
partners unless such partner has actual knowledge.
(g) Client Waiver. The Company has had an opportunity to
consult independent legal counsel and advisors regarding this Agreement. The
Company understands that the Purchaser cannot advise the Company on whether to
enter into this Agreement to sell Shares. The Company is knowledgeable about the
Purchaser's financial interests in this transaction, and has determined that
this transaction is in the best interests of the Company, hereby waives any and
all conflict of interests, and hereby knowingly consents to this transaction.
3. REPRESENTATIONS AND WARRANTIES OF THE PURCHASER. The
Purchaser hereby represents and warrants to the Company as follows:
(a) Organization; Authorization. The Purchaser has been
organized and is in good standing under the laws of the jurisdiction of its
formation. The Purchaser has the requisite right, power and authority to enter
into this Agreement and to consummate the transactions contemplated hereby. 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
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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. On the Closing Day, the Purchaser will credit the
Purchase Price against accrued legal fees chargeable by Purchaser to Seller as
if Seller made a payment of such amount in the ordinary course on the Closing
Day. On the Closing Day, the Company will deliver to the Purchaser, via the
Purchaser's DTC Accounts through the Depository Trust Company DWAC system, the
number of Shares set forth hereinbelow:
100,000 shares to DTC #0044 Account # 377 27481 100,000 shares
to DTC #0221 Account # UJ38541-HM 100,000 shares to DTC #0221
Account # UJ38539-HM
The term "Closing Day" shall mean June 17, 2003.
5. INTENTIONALLY OMITTED
6. INTENTIONALLY OMITTED
7. 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.
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8. 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.
9. 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.
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:
YOCCA PATCH & YOCCA, LLP
By: /s/ Nicholas J. Yocca
-------------------------------------------------
Name: Nicholas J. Yocca
Title: Partner
Address:
19900 MacArthur Blvd., #650
Irvine, CA 92612
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