STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT (the “Purchase Agreement”) is made and entered
into as of March 19, 2010, 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 $0.83 per share for an aggregate purchase price of
$__________.
Section 1.2 Closing. Purchaser
shall purchase the Stock at a closing that shall occur at a mutually agreed upon
date within five (5) business days of the execution of this Purchase
Agreement. At the closing, Purchaser will pay the purchase price for
the Stock to ZBB and ZBB will deliver to Purchaser a certificate representing
the Stock being purchased by Purchaser hereunder.
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. 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.
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.
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Section 3.2 Purchase Entirely for Own
Account. The Stock is being acquired by Purchaser for investment
for Purchaser’s own account, not as a nominee or agent, and not with a view to
the resale or distribution of any part thereof, and Purchaser has no present
intention of selling, granting any participation in, or otherwise distributing
the same. Purchaser further represents that he does not presently have any
contract, undertaking, agreement or arrangement with any person to sell,
transfer or grant any participation with respect to any of the
Stock.
Section 3.3 No
Commissions. No commission, fee or other remuneration is to be
paid or given, directly or indirectly, to any person or entity for soliciting
Purchaser to purchase the Stock.
Section 3.4 Investment
Experience. Purchaser is an “accredited investor” as defined in
Rule 501(a) under the Securities Act of 1933, as amended (the “Securities
Act”). Purchaser is aware of ZBB’s business affairs and financial
condition and has had access to and has acquired sufficient information about
ZBB to reach an informed and knowledgeable decision to acquire the Stock.
Purchaser has such business and financial experience as is required to give him
the ability to protect his own interests in connection with the purchase of the
Stock.
Section 3.5 Ability to Bear
Risk. Purchaser is able to bear the economic risk of his
investment in the Stock for an indefinite period of time and Purchaser
understands that the Stock has not been registered under the Securities Act and
cannot be sold unless subsequently registered under the Securities Act or an
exemption from such registration is available. Purchaser acknowledges
that he could bear a complete or significant loss of his investment in the
Stock, including in connection with ZBB’s exercise of the Repurchase Option (as
defined below).
Section 3.6 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.
Section 3.7 Restricted
Securities. Purchaser understands that the Stock is
“restricted” under applicable U.S. federal and state securities laws inasmuch as
it is being acquired from ZBB in a transaction not involving a public offering
and that, pursuant to these laws and applicable regulations, Purchaser must hold
the Stock indefinitely unless it is registered with the Securities and Exchange
Commission (the “SEC”), and qualified by state authorities, or an exemption from
such registration and qualification requirements is available. Purchaser
further acknowledges that if an exemption from registration or qualification is
available, it may be conditioned on various requirements including the timing
and manner of sale, the holding period for the Stock, and on requirements
relating to ZBB which are outside of Purchaser’s control, and which ZBB is under
no obligation and may not be able to satisfy. In this connection,
Purchaser represents that he is familiar with Rule 144 promulgated under the
Securities Act, as presently in effect, and understands the resale limitations
imposed thereby and by the Securities Act.
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Section 3.8 Legends.
Purchaser understands that the Stock, and any securities issued in respect
thereof or exchange therefor, may bear the following legends:
(a) THE SECURITIES REPRESENTED BY THIS
CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AND HAVE
BEEN ACQUIRED FOR INVESTMENT AND NOT WITH A VIEW TO, OR IN CONNECTION WITH, THE
SALE OR DISTRIBUTION THEREOF. THESE SECURITIES MAY NOT BE OFFERED, SOLD,
TRANSFERRED OR OTHERWISE DISPOSED OF UNLESS REGISTERED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED, AND ANY APPLICABLE STATE SECURITIES LAWS OR AN EXEMPTION
FROM SUCH REGISTRATION IS AVAILABLE.”
(b)
Any legend required by the Blue Sky laws of any state to the extent such laws
are applicable to the shares represented by the certificate so
legended.
ARTICLE 4-
MISCELLANEOUS
Section 4.1 Transfers in Violation of
Purchase Agreement. Any transfer or attempted transfer of any
Stock in violation of any provision of this Purchase Agreement shall be null and
void, and ZBB shall not record such transfer on its books or treat any purported
transferee of such Stock as the owner of such securities for any
purpose.
Section 4.2 Severability. Whenever
possible, each provision of this Purchase Agreement will be interpreted in such
manner as to be effective and valid under applicable law, but if any provision
of this Purchase Agreement is held to be invalid, illegal or unenforceable in
any respect under any applicable law or rule in any jurisdiction, such
invalidity, illegality or unenforceability will not affect any other provision
or any other jurisdiction, but this Purchase Agreement will be reformed,
construed and enforced in such jurisdiction as if such invalid, illegal or
unenforceable provision had never been contained herein.
Section 4.3 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 4.4 Survival. The
representations, warranties, covenants and agreements made herein shall survive
the closing of the transactions contemplated hereby.
Section 4.5 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;
provided, that the rights of Purchaser under this Purchase Agreement shall not
be assignable except in connection with a transfer of Stock expressly permitted
by the terms of this Purchase Agreement.
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Section 4.6 Entire Agreement;
Amendment. This Purchase Agreement constitutes the full and entire
understanding and agreement among the parties with regard to the subjects hereof
and thereof. The failure by either party to enforce any rights under this
Purchase Agreement shall not be construed as a waiver of any rights of such
party. Any term of this Purchase Agreement may be amended and the
observance of any term of this Purchase Agreement may be waived (either
generally or in a particular instance and either retroactively or
prospectively), only with the written consent of ZBB and Purchaser.
Section 4.7 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. The parties hereto agree and acknowledge that money damages
may not be an adequate remedy for any breach of the provisions of this Purchase
Agreement and that any party may, in its sole discretion, apply to any court of
law or equity of competent jurisdiction (without posting any bond or deposit)
for specific performance and/or injunctive or other relief in order to enforce
or prevent any violations of the provisions of this Purchase
Agreement.
Section 4.8 Notices. Any
notice required or permitted by this Purchase Agreement shall be in writing and
shall be deemed sufficient when delivered personally or sent by fax or 48 hours
after being deposited in the U.S. mail, as certified or registered mail, with
postage prepaid, and addressed to the party to be notified at such party’s
address or fax number as set forth below or as subsequently modified by written
notice.
Section 4.9 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. Execution and delivery of this Purchase Agreement by exchange
of facsimile copies bearing the facsimile signature of a party hereto shall
constitute a valid and binding execution and delivery of this Purchase Agreement
by such party. Such facsimile copies shall constitute enforceable original
documents.
Section 4.10 Regulatory Filings;
Expenses. Each party shall be responsible for making their
respective filings or disclosures with any state or federal
agency. In addition, each party shall bear its own expenses in
connection with the negotiation and preparation of this Purchase Agreement and
its consummation of the transactions contemplated hereby, including without
limitation the fees and expenses of its counsel, accountants and
consultants.
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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.
ZBB, INC. | ||
By: | ||
Name: | ||
Title: |
Address:
ZBB, Inc.
X00 X00000 Xxxxxxxxx
Xxx
Xxxxxxxxx Xxxxx, XX
00000
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Attn: Xxxxx
Xxxxxxxx
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PURCHASER
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Address:
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