**EXHIBIT 10.24**

 

VAPE HOLDINGS, INC.

 

COMMON STOCK PURCHASEAGREEMENT

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**ThisCommon Stock Purchase Agreement**(this “***Agreement***”) ismade and entered into as of December 10, 2015 (the “***Agreement Date***”), by and between Vape Holdings, Inc.,****a Delaware corporation (the “***Company***”), and Odyssey Research and Trading, LLC, a Utah limitedliability company (the “***Purchaser***”).

 

Recitals

 

**Whereas**,the Company desires to issue and sell common stock of the Company, par value $0.00001 (the “***Common Stock***”),on the terms and conditions set forth herein, and has authorized such sale and issuance; and

 

**Whereas**,the Purchaser desires to purchase such Common Stock on the terms and conditions set forth herein.

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**Agreement**

 

**Now,Therefore**, in consideration of the foregoing recitals and the mutual promises, representations, warranties, and covenantshereinafter set forth and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged,the parties hereto agree as follows:

 

**1.           AgreementTo Sell And Purchase**.

 

The Purchaser hereby agreesto purchase, and the Company hereby agrees to sell and issue to the Purchaser, a number of shares (the “***Shares***”)of newly issued restricted Common Stock of the Company determined pursuant to the following formula for an aggregate purchase priceof $90,000.00 (the “***Purchase Price***”): the total number of Shares being purchased hereunder shall be equalto (a) the Purchase Price divided by (b) 90% multiplied by the average of the closing prices of the Common Stock on the Company’sprincipal trading market for the three (3) Trading Days (as defined below) immediately preceding the date that is six (6) monthsfrom the date hereof. In the event of any stock split, stock combination, recapitalization, stock dividend, or similar transactionthat occurs prior to the Company’s delivery of any Shares pursuant to the terms hereof, the number of Shares shall be adjustedaccordingly based on such stock split, stock combination, recapitalization, stock dividend, or similar transaction. For purposeshereof, the term “***Trading Day***” means any day on which the New York Stock Exchange is open for trading.

 

 

 

 

**2.            Closing,Delivery And Payment**.

 

The closing of the saleand purchase of the Shares under this Agreement (the “***Closing***”) will take place simultaneously with theexecution of this Agreement or at such other time as the parties may otherwise agree. At the Closing, the Purchaser will pay theentire Purchase Price for all of the Shares by wire transfer of immediately available funds to such account as may be designatedby the Company. Notwithstanding the foregoing, the Company will not issue or otherwise put in the Purchaser’s name any Sharesuntil the satisfaction of each of the following conditions (the “***Share Delivery Conditions***”): (a) noShares shall be delivered prior to the date that is six (6) months from the date hereof; (b) the Purchaser shall have deliveredto the Company written notice specifying the number of Shares to be delivered (a “***Share Delivery Notice***”);and (c) such delivery of Shares will not result in the Purchaser owning Common Stock in excess of the Maximum Percentage (as definedbelow). Upon satisfaction of the Share Delivery Conditions, the Company will deliver the number of Shares specified in the applicableShare Delivery Notice within three (3) days of the Purchaser’s delivery of the applicable Share Delivery Notice. Upon executionof this Agreement, the Company will cause to be executed and delivered to the Purchaser a fully executed secretary’s certificatesubstantially in the form attached hereto as **Exhibit A** evidencing the Company’s approval of this Agreement.

 

**3.            Representations,Warranties and Covenants of the Company.**

 

TheCompany hereby represents, warrants and covenants to the Purchaser that as of the Closing and each date Shares are delivered tothe Purchaser pursuant to the terms hereof: 

 

(a) The Companyis a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware and has all necessarycorporate power and authority to (i) own, operate and occupy its properties and to carry on its business as presently conducted,and (ii) enter into this Agreement and the other agreements, instruments and documents contemplated hereby, and to consummate thetransactions contemplated hereby and thereby. The Company is qualified to do business and is in good standing in each jurisdictionin which the failure to so qualify would have a material adverse effect.

 

(b) All necessarycorporate proceedings, votes, resolutions and approvals relating to the issuance and sale of the Shares will have been completedby the Company. Upon execution, this Agreement will constitute a valid and legally binding obligation of the Company, enforceablein accordance with its terms except (i) as limited by applicable bankruptcy, insolvency, reorganization, moratorium, and otherlaws of general application affecting enforcement of creditors’ rights generally, and (ii) as limited by laws relating tothe availability of specific performance, injunctive relief or other equitable remedies.

 

(c) The Shares purchased pursuantto this Agreement will be, upon issuance and payment by the Purchaser in accordance with this Agreement, duly authorized, validlyissued, fully paid, non-assessable, and free of all liens, claims and encumbrances.

 

(d) There is no action, suit, investigationor proceeding pending against or, to the knowledge of the Company, threatened against or affecting, the Company as of the datehereof which in any manner challenges or seeks to prevent, enjoin, alter or delay the transactions contemplated by this Agreement.

 

(e) No insolvency or bankruptcy proceedingsof any nature are pending against or with respect to the Company under the laws of the United States or any state or any foreignjurisdiction.

 

 

 

(f) In order to allow for, as ofthe relevant date of determination, the purchase of all of the Shares to be purchased hereunder, the Company shall take all actionnecessary from time to time to reserve for the benefit of the Purchaser the number of authorized but unissued shares of CommonStock equal to the number of Shares set forth in Section 1 above (or if such number of Shares cannot be calculated on any givendate, such number shall be calculated based on 90% of the average of the closing prices of the Common Stock on its principal tradingmarket for the three (3) Trading Days immediately preceding any given date of measurement) (such calculated amount is referredto as the “**Share Reserve**”). If at any time the Share Reserve is less than required herein, the Company shallimmediately increase the Share Reserve in an amount equal to no less than the deficiency. If the Company does not have sufficientauthorized and unissued shares of Common Stock available to increase the Share Reserve, the Company shall call a special meetingof the stockholders as soon as practicable after such occurrence, but in no event later than thirty (30) calendar days after suchoccurrence, and hold such meeting as soon as practicable thereafter, but in no event later than sixty (60) calendar days aftersuch occurrence, for the sole purpose of increasing the number of authorized shares of Common Stock. The Company’s managementshall recommend to the Company’s stockholders to vote in favor of increasing the number of authorized shares of Common Stock.Management shall also vote all of its shares in favor of increasing the number of authorized shares of Common Stock. The Companyshall use its best efforts to cause such additional shares of Common Stock to be authorized so as to comply with the requirementsof this subsection.

 

**4.            Representationsand Warranties of the Purchaser.**

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The Purchaser hereby representsand warrants to the Company that as of the Closing hereunder:

 

(a) The Purchaserhas full power and authority to enter into this Agreement. Upon execution, this Agreement will constitute a valid and legally bindingobligation of the Purchaser, enforceable in accordance with its terms except (i) as limited by applicable bankruptcy, insolvency,reorganization, moratorium, and other laws of general application affecting enforcement of creditors’ rights generally, and(ii) as limited by laws relating to the availability of specific performance, injunctive relief or other equitable remedies.

 

(b) The Shareswill be acquired for investment for the Purchaser’s own account, not as a nominee or agent, and not with a view to the resaleor distribution of any part thereof, and the Purchaser has no present intention of selling, granting any participation in or otherwisedistributing the same except in compliance with applicable U.S. securities laws.

 

(c) The Purchaseris an *“accredited investor”* within the meaning of Rule 501 of Regulation D promulgated under the SecuritiesAct of 1933, as amended (the “***Securities Act***”).

 

 

 

(d) The Purchaseris an experienced investor in securities of companies in the development stage, can bear the economic risk of its investment, includinga total loss, and has such knowledge and experience in financial or business matters that it is capable of evaluating the meritsand risks of the investment in the Shares. The Purchaser has conducted its own due diligence review of the Company and receivedcopies or originals of all documents it has requested from the Company.

 

(e) The Purchaserunderstands that the issuance of the Shares has not been, and will not be, registered under the Securities Act, by reason of aspecific exemption from the registration provisions of the Securities Act which depends upon, among other things, the bona fidenature of the investment intent and the accuracy of the Purchaser’s representations as expressed herein. The Purchaser understandsthat the Shares are characterized as *“restricted securities”* under applicable U.S. federal and state securitieslaws and that, pursuant to these laws, the Purchaser must hold the Shares indefinitely unless subsequently registered for resalewith the Securities and Exchange Commission and qualified by state authorities, or an exemption from such registration and qualificationrequirements is available.

 

**5.            Ownership Limitation.**

 

Notwithstanding anythingto the contrary contained in this Agreement, if at any time the Purchaser shall or would be issued shares of Common Stock hereunder,but such issuance would cause the Purchaser (together with its affiliates) to own a number of shares exceeding 9.99% of the numberof shares of Common Stock outstanding on such date (the “***Maximum Percentage***”), the Company must not issueto the Purchaser shares of the Common Stock which would exceed the Maximum Percentage. The shares of Common Stock issuable to thePurchaser that would cause the Maximum Percentage to be exceeded are referred to herein as the “***Ownership******Limitation****Shares***”. The Company will reserve the Ownership Limitation Shares for the exclusive benefitof the Purchaser. From time to time, the Purchaser may notify the Company in writing of the number of the Ownership LimitationShares that may be issued to the Purchaser without causing the Purchaser to exceed the Maximum Percentage. Upon receipt of suchnotice, the Company shall be unconditionally obligated to immediately issue such designated shares to the Purchaser, with a correspondingreduction in the number of the Ownership Limitation Shares. For purposes of this Section, beneficial ownership of Common Stockwill be determined under Section 13(d) of the Securities Exchange Act of 1934, as amended. By written notice to the Company, thePurchaser may increase, decrease or waive the Maximum Percentage as to itself but any such waiver will not be effective until the61st day after delivery thereof. The foregoing 61-day notice requirement is enforceable, unconditional and non-waivable and shallapply to all affiliates and assigns of the Purchaser.

 

**6.            Miscellaneous.**

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**6.1            Governing Law;Venue**. This Agreement shall be governed by and interpreted in accordance with the laws of the State of Utah without givingeffect to the principles thereof regarding the conflict of laws. Each party consents to and expressly agrees that exclusive venuefor the resolution of any dispute arising out of or relating to this Agreement or the relationship of the parties or their affiliatesshall be in Salt Lake County, Utah. For any litigation arising in connection with this Agreement, each party hereto hereby (i)consents to and expressly submits to the exclusive personal jurisdiction of any state or federal court sitting in Salt Lake County,Utah, (ii) expressly submits to the exclusive venue of any such court for the purposes hereof, and (iii) waives any claim of impropervenue and any claim or objection that such courts are an inconvenient forum or any other claim or objection to the bringing ofany such proceeding in such jurisdictions or to any claim that such venue of the suit, action or proceeding is improper.

 

 

 

**6.2            Entire Agreement;Amendments**. This Agreement constitutes the full and entire understanding and agreement between the parties with regard to thesubjects hereof and thereof. Except as otherwise expressly provided herein, neither this Agreement nor any term hereof may be amended,waived, discharged or terminated, except by a written instrument signed by the Company and the Purchaser.

 

**6.3            Notices**.Any notices, consents, waivers or other communications required or permitted to be given under the terms of this Agreement mustbe in writing and will be deemed to be effective upon delivery when delivered (a) personally; (b) by facsimile, provided a positivetransmission report is received and a copy is mailed no later than the next business day through a nationally recognized overnightdelivery service; (c) by overnight delivery with a nationally recognized overnight delivery service, in each case properly addressedto the party to receive the same. The addresses and facsimile numbers for such communications will be,

 

in the case of the Purchaser:            

 

Odyssey Research and Trading,LLC

Attention: John Fife

303 East Wacker Drive,Suite 1040

Chicago, Illinois 60601

jfife@chicagoventure.com

 

with a copy to (which copy shall not constitutenotice):

 

Hansen Black Anderson AshcraftPLLC

Attention: Jon Hansen

3051 West Maple Loop Drive

Suite 325

Lehi, Utah 84043

jhansen@hbaalaw.com

 

and in the case of the Company:

 

Vape Holdings, Inc.

Attn: Kyle Tracey

21822 Lassen Street, SuiteA

Chatsworth, California91311

 

 

 

with a copy to (which copy shall not constitutenotice):

 

Horwitz + Armstrong, LLP

Attn: Christopher L. Tinen

26475 Rancho Parkway South

Lake Forest, California92630

 

or at such other address and facsimile numberas the receiving party will have furnished to the sending party in writing.

 

**6.4            Survival**.The representations, warranties, covenants and agreements made and incorporated by reference herein will survive any investigationmade by or on behalf of the Purchaser or the Company, and will survive until the date that is two (2) years following the dateof the final Closing that occurs hereunder.

 

**6.5            Successors andAssigns**. Except as otherwise expressly provided herein, the provisions hereof will inure to the benefit of, and be bindingupon, the respective successors, assigns, heirs, executors and administrators of the parties hereto. The Purchaser may transferor assign all or any portion of its rights under this Agreement to any person or entity permitted under applicable securities laws.

 

**6.6            Interpretations**.All pronouns and any variations thereof will be deemed to refer to the masculine, feminine, neuter, singular or plural, as theidentity of the person or persons or entity or entities may require. All references to “$” or dollars herein will beconstrued to refer to United States dollars. The titles of the Sections and subsections of this Agreement are for convenience orreference only and are not to be considered in construing this Agreement. All references to “including” shall be deemedto mean “including, without limitation.”

 

**6.7            Severability**.In case any provision of this Agreement is determined to be invalid, illegal or unenforceable, the validity, legality and enforceabilityof the remaining provisions will not in any way be affected or impaired thereby.

 

**6.8            Attorneys’Fees**. In the event of any action at law or in equity to enforce or interpret the terms of this Agreement or collect any amountsowed hereunder, the parties agree that the party who is awarded the most money shall be deemed the prevailing party for all purposesand shall therefore be entitled to an additional award of the full amount of the attorneys’ fees and expenses paid by suchprevailing party in connection with the litigation, collection and/or dispute without reduction or apportionment based upon theindividual claims or defenses giving rise to the fees and expenses. Nothing herein shall restrict or impair a court’s powerto award fees and expenses for frivolous or bad faith pleading.**            **

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**6.9            Counterparts**.This Agreement may be executed in counterparts, each of which when so executed and delivered will constitute a complete and originalinstrument but all of which together will constitute one and the same agreement, and it will not be necessary when making proofof this Agreement or any counterpart thereof to account for any counterpart other than the counterpart of the party against whomenforcement is sought.

 

 

 

**6.10            No Reliance**.The Company acknowledges and agrees that neither the Purchaser nor any of its officers, directors, members, managers, representativesor agents has made any representations or warranties to the Company or any of its officers, directors, representatives, agentsor employees except as expressly set forth in this Agreement and, in making its decision to enter into the transactions contemplatedby this Agreement, the Company is not relying on any representation, warranty, covenant or promise of the Purchaser or its officers,directors, members, managers, agents or representatives other than as set forth in this Agreement.

 

**6.11            Waiver of JuryTrial**. EACH PARTY TO THIS AGREEMENT IRREVOCABLY WAIVES ANY AND ALL RIGHTS SUCH PARTY MAY HAVE TO DEMAND THAT ANY ACTION, PROCEEDINGOR COUNTERCLAIM ARISING OUT OF OR IN ANY WAY RELATED TO THIS AGREEMENT OR THE RELATIONSHIPS OF THE PARTIES HERETO BE TRIED BY JURY.THIS WAIVER EXTENDS TO ANY AND ALL RIGHTS TO DEMAND A TRIAL BY JURY ARISING UNDER COMMON LAW OR ANY APPLICABLE STATUTE, LAW, RULEOR REGULATION. FURTHER, EACH PARTY HERETO ACKNOWLEDGES THAT SUCH PARTY IS KNOWINGLY AND VOLUNTARILY WAIVING SUCH PARTY’SRIGHT TO DEMAND TRIAL BY JURY.

 

**6.12            Voluntary Agreement**.The Company has carefully read this Agreement and has asked any questions needed for the Company to understand the terms, consequencesand binding effect of this Agreement. The Company has had the opportunity to seek the advice of an attorney of the Company’schoosing and is executing this Agreement voluntarily and without any duress or undue influence by the Purchaser or anyone else.

 

**6.13            Specific Performance**.The Company acknowledges and agrees that irreparable damage would occur to the Purchaser in the event that the Company fails toperform any provision of this Agreement in accordance with its specific terms. It is accordingly agreed that the Purchaser shallbe entitled to an injunction or injunctions to prevent or cure breaches of the provisions of this Agreement and to enforce specificallythe terms and provisions hereof, this being in addition to any other remedy to which the Purchaser may be entitled hereunder, bylaw or at equity. For the avoidance of doubt, in the event the Purchaser seeks to obtain an injunction against the Company or specificperformance of any provision of this Agreement, such action shall not be a waiver of any right of the Purchaser under this Agreement,at law, or in equity.

 

**[signatureson following page]**

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**InWitness Whereof****,**the parties hereto have executed this **CommonStock Purchase Agreement** as of the date set forth in the first paragraph hereof.

 

 

 

*[Signature page to Common Stock PurchaseAgreement]*

 

 

 

 

Exhibit A

 

**SECRETARY’SCERTIFICATE**