STOCK PURCHASE AGREEMENT
Exhibit
10.1
THIS
STOCK PURCHASE AGREEMENT (the “Purchase Agreement”) is made and entered into as
of January 3, 2011, by and between ZBB Energy Corporation, a Wisconsin
corporation (“ZBB”), and [________] (“Purchaser”).
ARTICLE
1 - SALE OF STOCK
Section
1.1 Sale of Stock.
Subject to the terms and conditions of this Purchase Agreement, on the date
hereof ZBB agrees to issue and sell to Purchaser, and Purchaser agrees to
purchase from ZBB, [________] shares of ZBB’s Common Stock (the “Stock”) at a
purchase price of $1.08 per share for an aggregate purchase price of
$[________].
Section
1.2 Closing. Subject
to the satisfaction or waiver of all of the closing conditions set forth in the
Financial Advisory Agreement (the “Advisory Agreement”) dated December 29, 2010
by and between ZBB and Stonegate Securities Inc. (“Stonegate”), as amended, and
receipt of clearance from NYSE Amex for issuance of the Stock, (a) Purchaser
shall pay the aggregate Purchase Price for the Shares by delivery of immediately
available funds to such Purchaser’s executing broker’s delivery versus payment
account established at Stonegate, (b) ZBB will deliver, or cause to be
delivered, to Stonegate the shares by authorizing the release of the Shares to
Stonegate’s clearing firm via DWAC delivery prior to the release of the federal
funds wire to ZBB for payment of such shares, (c) Stonegate will deliver, or
cause to be delivered, to Purchaser, such Purchaser’s shares in accordance with
the instructions provided by such Purchaser on its executing broker’s account
versus payment for such shares and (d) Stonegate will deliver, or cause to be
delivered, to ZBB, the aggregate purchase price for the shares, minus applicable
fees and disbursements. Each of Purchaser and ZBB acknowledge and agree that the
settlement procedure described above is being provided to ZBB as an
accommodation solely upon ZBB’s request.
ARTICLE
2 - REPRESENTATIONS AND WARRANTIES OF ZBB
ZBB
hereby represents and warrants to Purchaser as follows:
Section
2.1 Organization
ZBB is a corporation duly organized, validly existing and in good standing under
the laws of the State of Wisconsin.
Section
2.2 Valid Issuance of Common
Stock; Registration. The Stock is duly authorized, validly issued, fully
paid and non-assessable and is free and clear of all liens and encumbrances
other than restrictions on transfer imposed by applicable securities
laws. The issuance and sale of the Stock will be registered pursuant
the Registration Statement on Form S-3 (No. 333-156941) originally filed by ZBB
with the Securities and Exchange Commission (the “Commission”) on January 26,
2009 (the “Registration Statement”). The Registration Statement is effective
under the Securities Act and no stop order preventing or suspending the
effectiveness of the Registration Statement or suspending or preventing the use
of the Prospectus has been issued by the Commission and no proceedings for that
purpose have been instituted or, to the knowledge of ZBB, are threatened by the
Commission.
Section
2.3 Authority. ZBB
has all requisite corporate power and authority to enter into this Purchase
Agreement and to consummate the transactions contemplated
hereby. This Purchase Agreement has been duly executed and delivered
by ZBB, and constitutes the valid and binding obligation of ZBB, enforceable in
accordance with its terms, except to the extent that enforceability may be
limited by applicable bankruptcy, reorganization, insolvency, moratorium or
other laws affecting the enforcement of creditors’ rights generally and by
general principles of equity.
ARTICLE
3 - REPRESENTATIONS AND WARRANTIES OF PURCHASER
Purchaser
hereby represents and warrants to ZBB as follows:
Section
3.1 Authority.
Purchaser has all requisite power and authority to enter into this Purchase
Agreement and to consummate the transactions contemplated hereby. This
Purchase Agreement has been duly executed and delivered by Purchaser, and
constitutes the valid and binding obligation of Purchaser, enforceable in
accordance with its terms, except to the extent that enforceability may be
limited by applicable bankruptcy, reorganization, insolvency, moratorium or
other laws affecting the enforcement of creditors’ rights generally and by
general principles of equity.
Section
3.2 Investment
Experience. Purchaser is an “accredited investor” as defined in
Rule 501(a) under the Securities Act of 1933, as amended (the “Securities
Act”).
Section
3.3 Access to
Information. Purchaser has had an opportunity to ask questions
and receive answers concerning the terms and conditions of the offering of Stock
and has had full access to such other information concerning ZBB as Purchaser
has requested.
ARTICLE
4- MISCELLANEOUS
Section
4.1 Governing Law.
This Purchase Agreement shall be governed in all respects by the laws of the
State of Wisconsin (without reference to its conflicts of laws
principles).
Section
4.2 Successors and
Assigns. Except as otherwise expressly provided herein, the
provisions hereof shall inure to the benefit of, and be binding upon, the
successors, assigns, heirs, executors and administrators of the parties
hereto.
Section
4.3 Entire
Agreement. This Purchase Agreement constitutes the full and entire
understanding and agreement among the parties with regard to the subjects hereof
and thereof.
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Section
4.4 Remedies. Each
of the parties to this Purchase Agreement will be entitled to enforce its rights
under this Purchase Agreement specifically, to recover damages and costs
(including reasonable attorneys’ fees) caused by any breach of any provision of
this Purchase Agreement and to exercise all other rights existing in its
favor.
Section
4.5 Counterparts.
This Purchase Agreement may be executed in any number of counterparts, each of
which shall be an original, but all of which together shall constitute one
instrument.
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IN WITNESS WHEREOF, the parties have
executed this Purchase Agreement as of the day and year set forth in the first
paragraph hereof.
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ZBB
ENERGY CORPORATION
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By:
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Name:
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Xxxx
Xxxxxxxxx
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Title:
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President
and CEO
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Address:
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X00
X00000 Xxxxxxxxx Xxx
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Xxxxxxxxx
Xxxxx, XX 00000
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Attn:
Xxxxx Xxxxxxxx
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Purchaser
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Signature
of Purchaser
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Title,
if Purchaser is an entity
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Address:
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