COMMON STOCK PURCHASE AGREEMENT
Exhibit
10.1
This
Common Stock Purchase Agreement, dated as of October 10, 2008 (this “Agreement”) is entered into by
and among Znomics, Inc., a Nevada corporation (the “Company”), and the persons and
entities (each an “Investor” and collectively,
the “Investors”) listed
on the Schedule of Investors attached as Exhibit A (the “Schedule of
Investors”).
Recitals
WHEREAS,
the Company desires to sell to the Investors, and the Investors desire to
purchase from the Company, shares of the Company’s Common Stock (the “Shares”) on the terms and
conditions set forth in this Agreement.
Agreement
NOW
THEREFORE, in consideration of the foregoing and the mutual covenants and
representations set forth below, the parties hereto, intending to be bound,
hereby agree as follows:
1. Purchase and Sale of the
Shares. Subject to the terms and conditions of this Agreement,
each Investor agrees, severally and not jointly, to purchase, and the Company
agrees to sell and issue to each Investor, the number of Shares equal to (a) the
amount set forth in the column designated “Aggregate Price of Shares” opposite
such Investor’s name on the Schedule of Investors divided by (b) the last sale
price of the Company’s Common Stock on the second trading day following the date
on which this Agreement is announced by the Company under cover of a Current
Report on Form 8-K.
2. Closing and
Delivery. The purchase and sale of the Shares shall occur at a
closing (the “Closing”)
to be held at such place and time as the Company and the Investors may
determine. At the Closing, the Company will issue, as promptly
thereafter as practicable, a stock certificate, registered in the name of each
Investor, reflecting the amount of Shares purchased.
3. Representations and Warranties of
Investors. Each Investor, severally and not jointly,
represents and warrants to the Company as follows:
(a) Investor
acknowledges that the Shares have not been registered under the Securities Act
of 1933, as amended (the “Act”), or qualified under any
other applicable blue sky laws in reliance, in part, on the representations and
warranties herein. Such Shares are being acquired by Investor for
investment purposes, for Investor’s own account only, and not for sale or with a
view to distribution of all or any part of such Shares. Investor does
not presently have any contract, undertaking, agreement or arrangement with any
person to sell, transfer or grant participations to such person or to any third
person with respect to, any of the Shares.
(b) Investor
is an “accredited investor” as such term is defined in Regulation 230.501(a)
promulgated under the Act. Investor has such knowledge and experience
in financial and business matters that Investor is capable of evaluating the
merits and risks of the acquisition of the Shares. Investor is
financially able to bear the economic risk of the investment, including the
total loss thereof.
(c) Investor
understands that the Shares are “restricted securities” under the federal
securities laws in that such securities will be acquired from the Company in a
transaction not involving a public offering, and that under such laws and
applicable regulations such securities may be resold without registration under
the Act only in certain limited circumstances and that otherwise such securities
must be held indefinitely. Investor understands that the Shares
shall not be transferable except in compliance with the provisions of the Act,
applicable state securities laws and the terms and conditions of this
Agreement.
(d) Without in
any way limiting the representations set forth above, Investor further agrees
not to make any disposition of all or any portion of the Shares purchased
hereunder or issuable upon exercise of conversion or other rights which are a
part of the Shares unless and until:
(i) There is
then in effect a registration statement under the Act covering such proposed
disposition and such disposition is made in accordance with such registration
statement and any applicable requirements of state securities laws;
or
(ii) (x) Investor
shall have notified the Company of the proposed disposition and shall have
furnished the Company with a detailed statement of the circumstances surrounding
the proposed disposition, and (y) if reasonably requested by the Company,
Investor shall have furnished Company with a written opinion of counsel,
reasonably satisfactory to the Company, that such disposition will not require
registration of any securities under the Act or the consent of or a permit from
appropriate authorities under any applicable state securities law.
(e) Investor
understands that the certificates evidencing the Shares may bear one or all of
the following legends:
(i) THE OFFER
AND SALE OF THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE “ACT”) AND MAY NOT BE OFFERED, SOLD OR
OTHERWISE TRANSFERRED, PLEDGED OR HYPOTHECATED UNLESS AND UNTIL REGISTERED UNDER
THE ACT OR, IN THE OPINION OF COMPANY COUNSEL SATISFACTORY TO THE ISSUER OF
THESE SECURITIES, SUCH OFFER, SALE OR TRANSFER, PLEDGE OR HYPOTHECATION IS IN
COMPLIANCE THEREWITH.
(ii) Any legend
required by applicable state securities laws.
4. Representations and Warranties of the
Company. The Company represents and warrants to the Investors
as follows:
(a) The
Company is a corporation duly organized, validly existing and in good standing
under the laws of the State of Nevada. The Company has the requisite corporate
power and authority to own and operate its properties and assets, to carry on
its business as presently conducted, to execute and deliver this Agreement and
to issue and sell the Shares.
(b) All
corporate action on the part of the Company and its directors and officers
necessary for the authorization, execution and delivery of this Agreement by the
Company, the authorization, sale, issuance and delivery of the Shares, and the
performance of all of the Company’s obligations under this Agreement has been
taken or will be taken prior to the Closing. This Agreement, when executed and
delivered by the Company, shall constitute a valid and binding obligation of the
Company, enforceable in accordance with its terms, except as limited by laws of
general application relating to bankruptcy, insolvency and the relief of
debtors, and as limited by rules of law governing specific performance,
injunctive relief or other equitable remedies and by general principles of
equity.
5. Miscellaneous.
(a) Entire Agreement;
Amendment. This Agreement constitutes the full and entire
understanding and agreements between the parties with respect to the subject
hereof. Neither this Agreement nor any term hereof may be amended,
waived, discharged or terminated verbally, but only by a written instrument
signed by the Company and the Investors holding a majority of the Shares issued
pursuant to this Agreement (excluding any of such shares that have been sold to
the public or pursuant to Rule 144).
(b) Lock-up. Each
Investor hereby agrees, itself, that from the date hereof and until 180 days
after date hereof (the “Lock-up
Period”), such Investor shall not offer, sell, contract to sell, pledge
or otherwise dispose of, directly or indirectly, any shares of Common Stock or
securities convertible into or exchangeable or exercisable for any shares of
Common Stock, enter into a transaction which would have the same effect, or
enter into any swap, hedge or other arrangement that disposes of, in whole or in
part, any of the economic consequences of ownership of shares of Common Stock,
whether any such aforementioned transaction is to be settled by delivery of
shares of Common Stock or such securities, in cash or otherwise, or publicly
disclose the intention to make any such offer, sale, pledge or disposition, or
to enter into any such transaction, swap, hedge or other arrangement, without,
in each case, your prior written consent. In addition, each Investor
agrees, itself, that without the Company’s prior written consent, such Investor
shall not, during the Lock-up Period, make any demand for or exercise any right
with respect to, the registration of any shares of Common Stock or any security
convertible into or exercisable or exchangeable for Common Stock.
(c) Governing
Law. This Agreement shall be governed by and interpreted in
accordance with the laws of the State of Oregon without regard to the conflict
of laws provisions thereof.
(d) Notices. Any
notice required or permitted hereunder shall be given in writing and shall be
deemed effectively given upon (i) personal delivery or upon deposit in a
United States Post Office box, by regular or certified mail with postage and
fees prepaid, addressed, if to an Investor, at its address shown on the Schedule
of Investors, and if to the Company, at the address of its principal corporate
offices or at such other address as such party may designate by ten days’
advance written notice to the other party or (ii) upon transmittal via
facsimile with receipt of confirmation.
(e) Severability. If
any provision of this Agreement becomes or is declared by a court of competent
jurisdiction to be illegal, unenforceable or void, portions of such provision,
or such provision in its entirety, to the extent necessary, shall be severed
from this Agreement, and such court will replace such illegal, void or
unenforceable provision of this Agreement with a valid and enforceable provision
that will achieve, to the extent possible, the same economic, business and other
purposes of the illegal, void or unenforceable provision. The balance of this
Agreement shall be enforceable in accordance with its terms.
(f) Jurisdiction;
Venue. With respect to any disputes arising out of or related
to this Agreement, the parties consent to the exclusive jurisdiction of, and
venue in, the state courts in Multnomah County in the State of Oregon (or in the
event of exclusive federal jurisdiction, the courts of the United States
District Court for the District of Oregon).
(Signature Page
Follows)
The
parties represent that they have read this Common Stock Purchase Agreement in
its entirety, have had an opportunity to obtain the advice of counsel prior to
executing this Agreement, and fully understand this Agreement. This
Agreement may be executed in counterparts, each of which shall be an original
and all of which together shall constitute one instrument.
COMPANY:
By: /s/ Xxxxx X.
Xxx
Print
Name: Xxxxx X.
Xxx
Title:
Chief Financial
Officer
INVESTOR:
/s/ Xxxxxx
Xxxxxxx
/s/
Xxxxxxx Xxxxxxx
/s/ Xxxxx
Xxxx
/s/
Xxxxxxx Xxxxx
/s/
Xxxxxxx Xxxxxxxx
/s/ Xxxxx
Xxxxxx
/s/ Xxxxx
Xxx
/s/ Xxxx
Xxxxxx
By:
Address:
____________________
_______________
_______________
Fax: ________________________
Exhibit
A
Schedule
of Investors
|
Aggregate
|
|
|
Investor
|
Price of Shares
|
|
Xxxxxx
Xxxxxxx
|
$15,000
|
|
[address]
|
|
|
[facsimile
number]
|
|
|
[email
address]
|
|
|
|
|
|
Xxxxxxx
Xxxxxxx
|
$12,000
|
|
[address]
|
|
|
[facsimile
number]
|
|
|
[email
address]
|
|
|
|
|
|
Xxxxx
Xxxx
|
$1,000
|
|
[address]
|
|
|
[facsimile
number]
|
|
|
[email
address]
|
|
|
|
|
|
Xxxxxxx
Xxxxx
|
$2,000
|
|
[address]
|
|
|
[facsimile
number]
|
|
|
[email
address]
|
|
|
|
|
|
Xxxxxxx
Xxxxxxxx
|
$5,000
|
|
[address]
|
|
|
[facsimile
number]
|
|
|
[email
address]
|
|
|
|
|
|
Xxxxx
Xxxxxx
|
$5,000
|
|
[address]
|
|
|
[facsimile
number]
|
|
|
[email
address]
|
|
|
|
|
|
Xxxxx
Xxx
|
$5,000
|
|
[address]
|
|
|
[facsimile
number]
|
|
|
[email
address]
|
|
|
|
|
|
Xxxx
Xxxxxx
|
$5,000
|
|
[address]
|
|
|
[facsimile
number]
|
|
|
[email
address]
|
|
|
|
|
|
|
|
|
Total
|
$50,000
|
