NOTE PURCHASE AGREEMENT
Exhibit 10.1
This Note Purchase Agreement (this “Agreement”)
is made as of July 1, 2017 and between QuantRx Biomedical Corp.
(the “Company”),
a Nevada corporation, with offices at 00000 XX
00xx
Xxxxxx, Xxxxxxxx, XX 00000
and the purchaser identified on the
signature page hereto (the “Purchaser”).
WHEREAS, the Company desires to sell to the Purchaser, and
the Purchaser desires to purchase from the Company, a Convertible
Promissory Demand Note in the principal amount $50,000 (the
“Note”)
and an issuance date of July 1, 2017; and
WHEREAS, the Company and the Purchaser are executing and
delivering this Agreement in reliance upon the exemption from
securities registration afforded by the provisions of the
Securities Act of 1933, as amended (the “1933
Act”), and the rules and
regulations promulgated by the U.S. Securities and Exchange
Commission (the “SEC”) thereunder.
NOW, THEREFORE,
in consideration of the premises and
mutual covenants and obligations hereinafter set forth and other
good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the Company and the Purchaser,
intending to be legally bound, hereby agree as
follows:
ARTICLE I
PURCHASE AND SALE OF NOTE
1.1. Authorization
of Note. The Company has authorized the issuance of the
Note.
1.2. Agreement
to Sell and Purchase the Note. Subject to the terms and conditions hereof, the
Company agrees to issue and sell to the Purchaser and the Purchaser
agrees to purchase from the Company, at the Closing (as defined
below), the Note for a purchase price (“Purchase
Price”) equal to $50,000
(amounts previously advanced by the Purchaser to the Company on
January 19, 2017 and March 8, 2017 in the amounts of $25,000 per
advance shall be applied as the Purchase Price). As consideration
for entering into this Note Purchase Agreement, the Purchaser shall
be issued 500,000 shares of Series B Convertible Preferred Stock of
the Company per $50,000 of principal amount of Note purchased (the
“Commitment Shares”). This purchase agreement is made
in accordance with and subject to the terms and conditions
described in this Agreement. The terms of the Note shall be
substantially as set forth in the form of Note attached hereto
as Exhibit A
(the “Form of
Note’)
1.3. Delivery
of Note. The Purchaser hereby authorizes and directs the
Company, upon the Closing, to deliver the Note to be issued to
Purchaser pursuant to this Agreement to the Purchaser’s
address indicated on the signature page hereto.
1.4. The
Closing. The closing with respect to the transactions
contemplated by Sections 1.2
and 1.3
shall take place on the date hereof
(the “Closing”)
at the offices of the Company.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF THE PURCHASER;
ACCESS
TO INFORMATION; INDEPENDENT INVESTIGATION
The
Purchaser hereby represents and warrants to and agrees with the
Company as follows:
2.1. Reliance
on Exemptions. The Purchaser acknowledges that the offering and
sale of the Note (the “Offering”)
has not been reviewed or recommended by the SEC or any state agency
because this is intended to be a nonpublic offering exempt from the
registration requirements of the 1933 Act and state securities
laws. The Offering is being made solely to an “accredited
investor,” as defined in Rule 501 of Regulation D promulgated
under the 0000 Xxx. The Purchaser understands that the Company is
relying upon the truth and accuracy of, and the Purchaser’s
compliance with, the representations, warranties, agreements,
acknowledgments and understandings of the Purchaser set forth
herein in order to determine the availability of such exemptions
and the eligibility of the Purchaser to acquire the
Note.
2.2. Investment
Purpose. The Purchaser represents that the Note is being
purchased for its own account, for investment purposes only and not
with a view to distribution or resale to others in contravention of
the registration requirements of the 1933 Act. The Purchaser agrees
that it will not sell or otherwise transfer the Note or the
securities underlying the Note, unless it is registered under the
1933 Act or unless an exemption from such registration is
available.
2.3. Accredited
Investor. The Purchaser represents and warrants that it is
an “accredited investor” as such term is defined in
Rule 501 of Regulation D promulgated under the 1933 Act and that it
is able to bear the economic risk of any investment in the Note.
The Purchaser further represents and warrants that all information
provided to the Company by Purchaser is accurate and complete in
all material respects.
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2.4. Loss
of Investment; Sophisticated Investor. The Purchaser recognizes that the purchase of the
Note involves a high degree of risk in that: (i) an investment
in the Company is highly speculative and only investors who can
afford the loss of their entire investment should consider
investing in the Company and the Note; (ii) transferability of
the Note is limited; and (iii) the Company may require
substantial additional funds to operate its business and there can
be no assurance that any other funds will be available to the
Company, in addition to all of the other risks to which the Company
may be subject. The Purchaser is an expert and sophisticated
investor and has such knowledge and experience in financial and
business matters so as to enable the Purchaser to utilize the
information made available to Purchaser in connection with the Note
to evaluate the merits and risks of an investment in the Note, and
to make an informed investment decision with respect thereto. The
Purchaser has consulted with its own legal and tax and other
relevant experts and is not relying on the Company with respect to
the tax, economic or any other considerations of an investment in
the Company or in the Note. The Purchaser recognizes that an
investment in the Company involves substantial risks, including
loss of the entire amount of such investment, and has taken full
cognizance of and understands all of the risks related to the
purchase of the Note.
2.5. Information.
The Purchaser acknowledges careful
review of this Agreement and all exhibits hereto (collectively,
this “Agreement”),
and hereby represents that: (i) the Purchaser has been furnished by
the Company during the course of this transaction with all
information regarding the Company which it has requested; and, (ii)
the Purchaser has been afforded the access and the opportunity to
ask questions of and receive answers from duly authorized officers
of the Company concerning the Company, the terms and conditions of
the Offering, and any additional information which it has
requested.
2.6. No
Representations. The Purchaser hereby represents that no oral or
written representations or warranties of any kind have been made to
the Purchaser by the Company or any agent, employee or affiliate of
the Company and in entering into this transaction the Purchaser is
not relying on any information other than the results of
independent investigation by the Purchaser.
2.7. Tax
Consequences. The Purchaser acknowledges that the Offering may
involve tax consequences and the Company is not providing any tax
advice or information. The Purchaser acknowledges that it must
retain its own professional advisors to evaluate the tax and other
consequences of an investment in the Note.
2.8. Transfer
or Resale. The Purchaser will not sell or otherwise transfer
Note without registration under the 1933 Act or applicable state
securities laws, or pursuant to an exemption therefrom. The
Purchaser understands that Rule 144 promulgated under the 1933 Act
sets forth certain restrictions on the ability to resell securities
without having to satisfy the registration requirements under the
0000 Xxx. The Purchaser consents that the Company may, if it
desires, permit the transfer of the Note out of the
Purchaser’s name only when the Purchaser’s request for
transfer is accompanied by an opinion of counsel reasonably
satisfactory to the Company that neither the sale nor the proposed
transfer results in a violation of the 1933 Act or any applicable
state “blue sky” laws.
2.9. State
Securities Laws; Legends. The Purchaser agrees and acknowledges that the
Note will bear a legend substantially in the form presented
below:
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE UNITED STATES
SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES
ACT”), OR ANY STATE SECURITIES LAWS. THIS SECURITY MAY NOT BE
SOLD, OFFERED FOR SALE, PLEDGED OR HYPOTHECATED OR OTHERWISE
TRANSFERRED IN THE ABSENCE OF A REGISTRATION STATEMENT IN EFFECT
WITH RESPECT TO SUCH SECURITY UNDER THE SECURITIES ACT OR AN
AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT. ANY SUCH TRANSFER MAY ALSO BE SUBJECT TO COMPLIANCE
WITH APPLICABLE STATE SECURITIES LAWS.
2.10. No
General Solicitation. The Purchaser represents that the Purchaser was
not induced to invest by any form of general solicitation or
general advertising including, but not limited to, the following:
(i) any advertisement, article, notice or other communication
published in any newspaper, magazine or similar media or broadcast
over the news or radio; and (ii) any seminar or meeting whose
attendees were invited by any general solicitation or
advertising.
2.11. Authorization;
Enforcement; Validity. If the Purchaser is a corporation, partnership,
trust, or other entity, the Purchaser represents and warrants that:
(a) it is authorized and otherwise duly qualified to purchase
and hold the Note; and (b) that this Agreement has been duly
and validly authorized, executed and delivered and constitutes the
legal, binding and enforceable obligation of the
undersigned.
2.12. No
Conflicts. If the Purchaser is a corporation, partnership,
trust, or other entity, Purchaser represents and warrants that the
execution and delivery by the Purchaser of this Agreement will not
result in any violation of, or be in conflict with, or constitute a
default under, the organizational documents of such entity, any
agreement or instrument to which such entity is a party or by which
such entity or its respective properties are bound, or any
judgment, decree, order or, to its knowledge, any statute, rule or
regulation applicable to such entity.
2.13. Address.
The Purchaser hereby represents that
the address of the Purchaser furnished by Purchaser at the end of
this Agreement is the undersigned’s principal residence if
the Purchaser is an individual or its principal business address if
it is a corporation or other entity.
2.14. Authority
of Signatory. Any person executing this Agreement on behalf of
Purchaser represents and warrants that he or she is duly authorized
to enter into and execute this Agreement on behalf of the
Purchaser.
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ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The
Company represents and warrants to the Purchaser as
follows:
3.1. Legality.
The Company has the requisite
corporate power and authority to enter into this Agreement and to
issue and deliver the Note. The execution and delivery of this
Agreement and the issuance and delivery of the Note hereunder and
the consummation of the transactions contemplated hereby have been
duly and validly authorized by all necessary corporate action by
the Company. This Agreement has been duly and validly executed and
delivered by and on behalf of the Company and is the valid and
binding agreement of the Company, enforceable against the Company
in accordance with its terms, except as enforceability may be
limited by general equitable principles, bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium or other laws
affecting creditors’ rights generally.
3.2. Organization.
The Company is a corporation duly
organized, validly existing and in good standing under the laws of
Nevada and is duly qualified as a foreign corporation in all
jurisdictions where the failure to be so qualified would have a
materially adverse effect on its business.
3.3. Non-Contravention/Third
Party Consents. Neither the execution and delivery of this
Agreement, the issuance of the Note nor the consummation of the
transactions contemplated by this Agreement conflicts with or
results in a breach by the Company of any of the terms or
provisions of, or constitutes a default under, the Articles of
Incorporation or by-laws of the Company, or any indenture,
mortgage, deed of trust or other material agreement or instrument
to which the Company is a party or by which it or any of its
properties or assets are bound, or any existing applicable Federal
or State law, rule, or regulation or any applicable decree,
judgment or order of any court, Federal or State regulatory body,
administrative agency or other domestic governmental body having
jurisdiction over the Company or any of its properties or assets,
except for such conflicts, breaches or defaults as would not have a
material adverse effect on the Company’s business. To the
extent that any third party consent is necessary, the Company will
obtain such consent prior to the Closing.
ARTICLE IV
MISCELLANEOUS
4.1. Notice.
Any notices, consents, waivers or
other communications required or permitted to be given under the
terms of this Agreement must be in writing and will be deemed to
have been delivered: (a) upon receipt, when delivered
personally; (b) upon receipt, when sent by facsimile (provided
confirmation of transmission is mechanically or electronically
generated and kept on file by the sending party); or (c) one
(1) business day after deposit with an overnight courier service,
in each case properly addressed to the party to receive the same.
The addresses and facsimile numbers for such communications shall
be:
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If to
Company:
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00000
XX 00xx
Xxxxxx
Xxxxxxxx,
XX 00000
Attention:
Xxxxxx Xxxxxxxxx
Tel.
No.: (000) 000-0000
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If
to the Purchaser, to its address and facsimile number set forth at
the end of this Agreement, or to such other address and/or
facsimile number and/or to the attention of such other person as
specified by written notice given to the Company five (5) days
prior to the effectiveness of such change. Written confirmation of
receipt (a) given by the recipient of such notice, consent,
waiver or other communication, (b) mechanically or
electronically generated by the sender’s facsimile machine
containing the time, date, recipient facsimile number and an image
of the first page of such transmission, or (c) provided by an
overnight courier service shall be rebuttable evidence of personal
service, receipt by facsimile or receipt from an overnight courier
service in accordance with clause (a), (b) or (c) above,
respectively.
4.2. Entire
Agreement; Amendment. This Agreement along with the Note supersedes all
other prior oral or written agreements between the Purchaser, the
Company, their affiliates and persons acting on their behalf with
respect to the matters discussed herein, and this Agreement and the
instruments referenced herein contain the entire understanding of
the parties with respect to the matters covered herein and therein
and, except as specifically set forth herein or therein, 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 or waived other than by an
instrument in writing signed by the Company and the
undersigned.
4.3. Severability.
If any provision of this Agreement
shall be invalid or unenforceable in any jurisdiction, such
invalidity or unenforceability shall not affect the validity or
enforceability of the remainder of this Agreement in that
jurisdiction or the validity or enforceability of any provision of
this Agreement in any other jurisdiction.
4.4. Governing
Law; Jurisdiction; Jury Trial. All questions concerning the construction,
validity, enforcement and interpretation of this Agreement shall be
governed by the internal laws of the State of New York, without
giving effect to any choice of law or conflict of law provision or
rule (whether of the State of New York or any other jurisdictions)
that would cause the application of the laws of any jurisdictions
other than the State of New York. Each party hereby irrevocably
submits to the non-exclusive jurisdiction of the state and federal
courts sitting in the Southern District of New York, for the
adjudication of any dispute hereunder or in connection herewith or
with any transaction contemplated hereby or discussed herein, and
hereby irrevocably waives, and agrees not to assert in any suit,
action or proceeding, any claim that it is not personally subject
to the jurisdiction of any such court, that such suit, action or
proceeding is brought in an inconvenient forum or that the venue of
such suit, action or proceeding is improper. Each party hereby
irrevocably waives personal service of process and consents to
process being served in any such suit, action or proceeding by
mailing a copy thereof to such party at the address for such
notices to it under this Agreement and agrees that such service
shall constitute good and sufficient service of process and notice
thereof. Nothing contained herein shall be deemed to limit in any
way any right to serve process in any manner permitted by law. Each
party hereby irrevocably waives any right it may have, and agrees
not to request, a jury trial for the adjudication of any dispute
hereunder or in connection with or arising out of this Agreement or
any transaction contemplated hereby.
4.5. Indemnification.
The Purchaser agrees to indemnify and
hold harmless the Company, any agents and each of their respective
officers, directors, employees, agents, attorneys, control persons
and affiliates from and against all losses, liabilities, claims,
damages, costs, fees, and expenses whatsoever (including, but not
limited to, any and all expenses incurred in investigating,
preparing or defending against any litigation commenced or
threatened) based upon or arising out of any actual or alleged
false acknowledgment, representation or warranty, or
misrepresentation or omission to state a material fact, or breach
of the Purchaser of any covenant or agreement made by the Purchaser
herein or in any other document delivered by or on behalf of
Purchaser in connection with this Agreement.
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The
Company agrees to indemnify and hold harmless the Purchaser, any
agents and each of their respective officers, directors, employees,
agents, attorneys, control persons and affiliates from and against
all losses, liabilities, claims, damages, costs, fees, and expenses
whatsoever (including, but not limited to, any and all expenses
incurred in investigating, preparing or defending against any
litigation commenced or threatened) based upon or arising out of
any actual or alleged false acknowledgment, representation or
warranty, or misrepresentation or omission to state a material
fact, or breach of the Company of any covenant or agreement made by
the Company herein or in any other document delivered by or on
behalf of the Company in connection with this
Agreement.
4.6. Headings.
The headings of this Agreement are for
convenience of reference and shall not form part of, or affect the
interpretation of, this Agreement.
4.7. Successors
and Assigns. This Agreement shall be binding upon and inure to
the benefit of the parties and their respective successors and
assigns. Neither party may assign this Agreement or any rights or
obligations hereunder without the prior written consent of the
other party.
4.8. 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.
4.9. Survival.
The representations and warranties of
the Company and the Purchaser contained in Articles II and III and
the agreements set forth in this Article IV shall survive for a
period of one year after the Closing.
4.10. Further
Assurances. Each party shall do and perform, or cause to be
done and performed, all such further acts and things, and shall
execute and deliver all such other agreements, certificates,
instruments and documents, as the other party may reasonably
request in order to carry out the intent and accomplish the
purposes of this Agreement and the consummation of the transactions
contemplated hereby.
4.11. No
Strict Construction. The language used in this Agreement will be deemed
to be the language chosen by the parties to express their mutual
intent, and no rules of strict construction will be applied against
any party.
4.12. Legal
Representation. The Purchaser acknowledges that: (a) it has
read this Agreement and the exhibits hereto; (b) it has either
been represented in the preparation, negotiation, and execution of
this Agreement by legal counsel of its own choice, or has chosen to
forego such representation by legal counsel after being advised to
seek such legal representation; and (c) it understands the
terms and consequences of this Agreement and is fully aware of its
legal and binding effect.
4.13. Confidentiality.
The Purchaser agrees that it shall
keep confidential and not divulge, furnish or make accessible to
anyone, the confidential information concerning or relating to the
business or financial affairs of the Company to which it has become
privy by reason of this Agreement until such information has been
publicly disclosed by the Company or until such information is no
longer material.
4.14. Counterparts.
This Agreement may be executed in two
or more identical 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; provided that a facsimile signature shall be
considered due execution and shall be binding upon the signatory
thereto with the same force and effect as if the signature were an
original, not a facsimile signature.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the parties hereto have
executed and delivered this Agreement as of the date first above
written.
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By:_____________________________
Name:
Xxxxxx Xxxxxxxxx
Title:
Chief Executive Officer
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IN
WITNESS WHEREOF, the parties hereto have executed and delivered
this Agreement as of the date first above written.
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PURCHASER
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________________________________
Purchase
Price: $
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PURCHASER
NOTIFICATION INFORMATION
Street
Address:
City,
State, Zip:
Phone:
Facsimile:
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EXHIBIT A
FORM OF NOTE
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