Exhibit 10.1


 


EXERCISE NOTICE


XENOMICS, INC.


WARRANT DATED OCTOBER 12, 2007


 


The undersigned Holder
hereby irrevocably elects to purchase                       shares
of Common Stock pursuant to the above referenced Warrant. Capitalized terms
used herein and not otherwise defined have the respective meanings set forth in
the Warrant.


 


(i)            The undersigned Holder
hereby exercises its right to purchase                               
Warrant Shares pursuant to the Warrant.


 


(ii)           Pursuant to this
Exercise Notice, the Company shall deliver to the holder                              
Warrant Shares in accordance with the terms of the Warrant.


 


 


	
  Dated: 
                           ,
            

  	
  Name of Holder:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  (Print)

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  (Signature must conform
  in all respects to

  name of holder as specified on the face of the

  Warrant)

  
								



 


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Warrant Shares Exercise Log


 


	
  Date

  	
   

  	
  Number
  of Warrant

  Shares Available to be

  Exercised

  	
   

  	
  Number
  of Warrant Shares

  Exercised

  	
   

  	
  Number
  of

  Warrant Shares

  Remaining to be

  Exercised

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


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XENOMICS, INC.


WARRANT ORIGINALLY ISSUED OCTOBER
12, 2007


WARRANT NO.


 


FORM OF ASSIGNMENT


 


[To be completed and signed only upon transfer of
Warrant]


 


FOR VALUE RECEIVED, the undersigned hereby sells,
assigns and transfers unto                                                              
the right represented by the above-captioned Warrant to purchase                         
shares of Common Stock to which such Warrant relates and appoints                                 
attorney to transfer said right on the books of the Company with full power of
substitution in the premises.


 


Dated:                                  ,
         


 


	
   

  	
   

  	
   

  
	
   

  	
  (Signature must conform in all respects to name of

  holder as specified on the face of the Warrant)

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Address of Transferee

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  
	
  In the presence of:

  	
   

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
				



 


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SECURITIES
PURCHASE AGREEMENT


 


This Securities Purchase Agreement (this “Agreement”)
is made as of October       , 2007 between
Xenomics, Inc., a Florida corporation (the “Company”), and the investors listed
on Exhibit A hereto, each of which is herein referred to as an “Investor”
and collectively, the “Investors”.


 


RECITALS:


 


WHEREAS, the Investors desire to purchase from the
Company, and the Company desires to sell to the Investors, up to              
shares of the Company’s common stock, par value $0.0001 per share (the “Common
Stock”), upon the terms and subject to the conditions set forth herein;


 


NOW, THEREFORE, in consideration of the premises and
mutual covenants contained herein, the parties hereto agree as follows:


 


1.             PURCHASE AND SALE OF
SECURITIES.


 


1.1           Purchase and Sale of
Securities. Upon the terms and subject to the conditions of this Agreement,
at the Closing (as defined below), the Company agrees to sell to the Investors,
and each Investor agrees to purchase from the Company the number of shares of
the Company’s Common Stock set forth opposite such Investor’s name on Exhibit
A hereto (the “Securities”) at the per share purchase price of $0.50 (“Purchase
Price”).


 


1.2           Closing. The
closing of the purchase and sale of the Securities (the “Closing”) shall take
place at the offices of the Company at 5:00 p.m., Eastern time on         ,
2007, or such other location, time or date as the parties shall mutually agree,
but only after the satisfaction or waiver of each of the conditions set forth
in Sections 6 and 7 (the “Closing Date”).


 


1.3           Deliveries. At
the Closing, the Company shall deliver to each Investor at the address set
forth on such Investor’s signature page hereto, a certificate or certificates,
registered in the name of the applicable Investor, representing the shares of
Common Stock purchased by such Investor, and each Investor shall deliver to the
Company the aggregate Purchase Price, by wire transfer of immediately available
funds to the following account:


 


Bank:


Bank
Contact:


ABA
Number:


Account
Name:


Account
Number:


 


2.             REPRESENTATIONS AND
WARRANTIES OF THE COMPANY.


 


For purposes of this Section, all references to “Company”
in Sections 2.1, 2.4 (with the exception of subsection (a) thereof), 2.7, 2.9
through 2.12, and 2.13 through 2.21 shall be


 


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deemed to be a reference
to the Company and all of its direct and indirect subsidiaries. The Company
hereby represents and warrants to each Investor that, except as set forth on a
Schedule of Exceptions (the “Company Schedule of Exceptions”) attached hereto
as Schedule A, which exceptions shall be deemed to be representations
and warranties as if made hereunder:


 


2.1           Corporate
Organization. The Company is a corporation duly organized, validly existing
and in good standing under the laws of its state of incorporation, and has the
requisite corporate power and authority to own or lease its properties and to
carry on its business as now being conducted. The Company is duly qualified as
a foreign corporation to do business and is in good standing in every
jurisdiction in which the property owned or leased by it or the nature of the
business conducted by it makes such qualification necessary, except to the
extent that the failure to be so qualified or in good standing would not have,
individually or in the aggregate, a Material Adverse Effect. For purposes of
this Agreement, “Material Adverse Effect” shall mean, as to any entity, any
material adverse effect on the business, operations, conditions (financial or
otherwise), assets or results of operations of that entity individually or of
the Company and its subsidiaries as a whole.


 


2.2           Capitalization;
Organizational Documents.


 


(a)           The authorized capital
stock of the Company will consist immediately prior to the Closing of
100,000,000 shares of Common Stock, of which as of the date hereof, 21,241,023
shares are issued and outstanding, and 20,000,000 shares of preferred stock of
the Company, of which, as of the date hereof, 95,600 shares of Series Convertible
Preferred Stock are issued and outstanding. All of the issued and outstanding
shares have been duly and validly issued and are fully paid and nonassessable
and have been issued in accordance with all applicable federal and state
securities laws. Except as disclosed in the Company Schedule of Exceptions, no
shares of Common Stock are subject to preemptive rights or any other similar
rights or any liens suffered or permitted by the Company. There are no
preemptive rights or rights of first refusal or similar rights which are
binding on the Company permitting any person to subscribe for or purchase from
the Company shares of its capital stock pursuant to any provision of applicable
law, the Certificate of Incorporation (as defined below) or the Company’s
By-laws. There are no securities or instruments containing anti-dilution or
similar provisions that will be triggered by the issuance of the Securities,
except for the anti-dilution provisions set forth in the Articles of Amendment
Designating the Series A Convertible Preferred Stock of the Company and as set
forth in the Company Schedule of Exceptions. The Company has made available to
each Investor true and correct copies of the Company’s Articles of
Incorporation, as amended and as in effect on the date hereof (the “Articles of
Incorporation”), and the Company’s By-laws, as in effect on the date hereof
(the “By-laws”).


 


(b)           Upon issuance of the
Securities and payment of the Purchase Price therefor in accordance with the
terms of this Agreement, the Securities will be duly authorized, validly
issued, fully paid and nonassessable, and free and clear of any restrictions on
transfer and any taxes, claims, liens, pledges, options, security interests,
purchase rights, preemptive rights, trusts, encumbrances or other rights or
interests of any other person (other than any restrictions under the Securities
Act of 1933, as amended (the “Securities Act”).


 


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2.3           Authorization;
Enforcement. (a) The Company has the requisite corporate power and
authority to enter into and perform its obligations under this Agreement and to
issue, sell and perform its obligations with respect to the Securities in
accordance with the terms hereof, (b) the execution and delivery of this Agreement
by the Company and the consummation by it of the transactions contemplated
hereby have been duly authorized by the Company’s Board of Directors and no
further consent or authorization is required by the Company, its Board of
Directors or its stockholders, except as disclosed on the Company Schedule of
Exceptions and (c) this Agreement has been duly executed and delivered by the
Company. This Agreement, when executed and delivered by the Company,
constitutes a valid and binding obligation of the Company enforceable against
the Company in accordance with its terms, except as such enforceability may be
limited by general principles of equity or applicable bankruptcy, insolvency,
reorganization, moratorium, liquidation or similar laws relating to, or affecting
generally, the enforcement of creditors’ rights and remedies.


 


2.4           No Conflicts. The
execution, delivery and performance of this Agreement by the Company, and the
consummation by the Company of the transactions contemplated hereby, will not
(a) result in a violation of the Articles of Incorporation or By-laws of the
Company, or (b) violate or conflict with, or result in a breach of, any
provision of, or constitute a default (or an event which with notice or lapse
of time or both would become a default) under, or give to others any rights of
termination, amendment, acceleration or cancellation of, or result in the
creation of any lien on or against any of the material properties of the
Company, any material note, bond, mortgage, agreement, license, indenture or
instrument to which the Company is a party, or result in a violation of any
statute, law, rule, regulation, writ, injunction, order, judgment or decree
applicable to the Company or by which any property or asset of the Company is
bound or affected, except where such violation, conflict, breach or other
consequence would not have a Material Adverse Effect. Except as specifically
contemplated by this Agreement and applicable blue sky laws, the Company is not
required to obtain any consent, authorization or order of, or make any filing
or registration with, any court or governmental or regulatory or
self-regulatory agency in order for it to execute, deliver or perform any of
its obligations under or contemplated by this Agreement in accordance with the
terms hereof. All consents, authorizations, orders, filings and registrations
that the Company is required to obtain pursuant to the preceding sentence have
been obtained or effected on or prior to the date hereof, except for those
required pursuant to blue sky laws.


 


2.5           SEC Documents;
Financial Statements. Except as disclosed in the Company Schedule of
Exceptions, the Company has filed all reports, schedules, forms, statements and
other documents required to be filed by it with the Securities and Exchange
Commission (the “SEC”) pursuant to the reporting requirements of the Securities
Exchange Act of 1934, as amended (the “Exchange Act”) (all of the foregoing,
and all other documents and registration statements heretofore filed by the
Company with the SEC being hereinafter referred to as the “SEC Documents”). The
Common Stock is currently traded on the Pink Sheets. The Company has delivered
or made available to each Investor true and complete copies of the SEC
Documents. As of their respective dates, except as disclosed in the Company
Schedule of Exception, the SEC Documents complied in all material respects with
the requirements of the Securities Act, and the Exchange Act and the rules and
regulations of the SEC promulgated thereunder applicable to the SEC Documents,
and none of the SEC Documents, at the time they


 


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were filed with the SEC
(except those SEC Documents that were subsequently amended), contained any
untrue statement of a material fact or omitted to state a material fact
required to be stated therein or necessary in order to make the statements
therein, in light of the circumstances under which they were made, not
misleading. Except as disclosed in the Company Schedule of Exceptions, as of
their respective dates, the financial statements of the Company and its
subsidiaries included (or incorporated by reference) in the SEC Documents
complied as to form in all material respects with applicable accounting
requirements and the published rules and regulations of the SEC or other
applicable rules and regulations with respect thereto. Such financial
statements have been prepared in accordance with generally accepted accounting
principles applied on a consistent basis during the periods involved (except (a)
as may be otherwise indicated in such financial statements or the notes
thereto, or (b) in the case of unaudited interim statements, to the extent they
may exclude footnotes or may be condensed or summary statements) and fairly
present the financial position of the Company and its subsidiaries as of the
dates thereof and the results of its operations and cash flows for the periods
then ended (subject, in the case of unaudited statements, to normal year-end
audit adjustments).


 


2.6           Securities Law
Exemption. Assuming the truth and accuracy of each Investor’s
representations set forth in this Agreement, the offer, sale and issuance of
the Securities as contemplated by this Agreement are exempt from the
registration requirements of the Securities Act and applicable state securities
laws, and neither the Company nor any authorized agent acting on its behalf has
taken or will take any action hereafter that would cause the loss of such
exemption.


 


2.7           Litigation. All
actions, suits, arbitrations or other proceedings or, to the Company’s
knowledge, investigations pending or threatened against the Company that would
have a Material Adverse Effect on the Company, are disclosed in the SEC
Documents. There is no action, suit, proceeding or, to the Company’s knowledge,
investigation that questions this Agreement or the right of the Company to
execute, deliver and perform under same.


 


2.8           Use of Proceeds.
The net proceeds from the sale of the Securities shall be used solely for
general corporate and working capital purposes.


 


2.9           Intellectual
Property. The Company owns, or has the contractual right to use, sell or
license all intellectual property necessary or required for the conduct of its
business as presently conducted and as proposed to be conducted, including,
without limitation, all trade secrets, processes, source code, licenses,
trademarks, service marks, trade names, logos, brands, copyrights, patents,
franchises, domain names and permits. The Company has not received any
communications alleging that the Company has violated or, by conducting its
business presently conducted violates or will violate any intellectual property
rights of any other person or entity.


 


2.10         Title to Property and
Assets. The Company has good and marketable title to or, in the case of
leases and licenses, has valid and subsisting leasehold interests or licenses
in, all of its properties and assets (whether real or personal, tangible or
intangible) free and clear of any liens or other encumbrances, except for liens
or other encumbrances that do not, individually or in the aggregate, have a
Material Adverse Effect. With respect to property leased by the Company, the
Company has a valid leasehold interest in such property pursuant to leases
which


 


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are in full force and
effect, and the Company is in compliance in all material respects with the
provisions of such leases.


 


2.11         Compliance with Laws.
The Company is in compliance with all laws, rules, regulations, orders,
judgments or decrees that are applicable to the Company, the conduct of its
business as presently conducted, and the ownership of its property and assets
(including, without limitation, all Environmental Laws (as defined below) and
laws related to occupational safety, health, wage and hour, and employment
discrimination). All required reports and filings with governmental authorities
have been properly made as and when required, except where the failure to
report or file would not, individually or in the aggregate, have a Material
Adverse Effect. “Environmental Laws” means all federal, state, local and
foreign laws, ordinances, treaties, rules, regulations, guidelines and permit
conditions relating to contamination or pollution of the environment (including
ambient air, surface water, ground water, land surface or subsurface strata) or
the protection of human health and worker safety, including, without
limitation, laws and regulations relating to transportation, storage, use,
manufacture, disposal or release of, or exposure of employees or others to,
Hazardous Materials (as defined below) or emissions, discharges, releases or
threatened releases of Hazardous Materials. “Hazardous Materials” means any
substance that has been designated by any governmental entity or by applicable
Environmental Laws to be radioactive, toxic, hazardous or otherwise a danger to
health or the environment, including, without limitation, PCBs, asbestos,
petroleum, urea formaldehyde and all substances listed as hazardous substances
pursuant to the Comprehensive Environmental Response, Compensation, and
Liability Act of 1980, as amended, or defined as a hazardous waste pursuant to
the Resource Conservation and Recovery Act of 1976, as amended, and the
regulations promulgated pursuant to Environmental Laws, but excluding office
and janitorial supplies maintained in accordance with Environmental Laws.


 


2.12         Licenses and Permits.
The Company has obtained and maintains all material federal, state, local and
foreign licenses, permits, consents, approvals, registrations, memberships,
authorizations and qualifications required to be maintained in connection with
the operations of the Company as presently conducted, the lack of which could
have a Material Adverse Effect. The Company is not in default in any material
respect under any of such licenses, permits, consents, approvals,
registrations, memberships, authorizations and qualifications.


 


2.13         Related Entities. Except
for the Subsidiaries set forth on the Company Schedule of Exceptions, the
Company does not presently own or control, directly or indirectly, any interest
in any other subsidiary, corporation, association or other business entity. Except
for SpaXen Italia, S.R.L., the Company is not a party to any joint venture,
partnership or similar arrangement.


 


2.14         Employee Benefit Plans.
All “employee benefit plans,” as such term is defined in the Employee
Retirement Income Security Act of 1974, as amended (“ERISA”), to which the
Company has any liability or obligation, contingent or otherwise, comply in all
material respects and have been maintained and administered in material
compliance with ERISA, the Internal Revenue Code of 1986, as amended (the “Code”),
and all other statutes, orders and governmental rules and regulations
applicable to such employee benefit plans.


 


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2.15         Insurance. The
Company has in full force and effect fire, casualty and liability insurance
policies sufficient in amount (subject to reasonable deductibles) to allow the
Company to replace any of its properties that might be damaged or destroyed to
the extent and in the manner customary for companies in similar business
similarly situated.


 


2.16         Employees. The
Company does not have any collective bargaining agreements with any of its
employees. There is no labor union organizing activity pending or, to the
Company’s knowledge, threatened with respect to the Company.


 


2.17         Material Contracts.
All contracts, agreements, instruments, leases, licenses, arrangements,
understandings or other documents filed with or required to be filed as
exhibits to the SEC Documents to which the Company therein is a party or by
which it may be bound have been so filed (the “Material Contracts”). The
Material Contracts that have been filed as exhibits are complete and correct
copies of the contracts, agreements, instruments, leases, licenses,
arrangement, understanding or other documents of which they purport to be
copies. The Material Contracts are valid and in full force and effect as to the
Company, and, to the Company’s knowledge, to the other parties thereto.


 


2.21         Brokers and Finders.
Except as disclosed in the Schedule of Exceptions, the Company has not employed
any broker, finder, consultant or intermediary in connection with the
transactions contemplated by this Agreement that would be entitled to a broker’s,
finder’s or similar fee or commission in connection herewith and therewith.


 


2.22         Disclosure. This
Agreement, Schedules and Exhibits hereto and all other documents delivered to
the Investors in connection herewith or therewith at the Closing, do not
contain any untrue statement of a material fact, or omit to state a material
fact necessary to make the statements therein, in light of the circumstances
under which they were made, not misleading. There are no facts that,
individually or in the aggregate, would have a Material Adverse Effect that
have not been disclosed to each Investor in this Agreement (including the
Schedules and Exhibits hereto), the SEC Documents or any other documents
delivered to each Investor in connection herewith or therewith at the Closing.


 


3.             REPRESENTATIONS AND
WARRANTIES OF INVESTOR.


 


Each of the Investors, severally and not jointly,
hereby represents and warrants to the Company as to itself and not as to any
other Investor, that:


 


3.1           Organization. The
Investor represents and warrants to, and covenants with, the Company that the
Investor has full right, power, authority and capacity to enter into this
Agreement and to consummate the transactions contemplated hereby.


 


3.2           Authorization; Enforcement.
(a) The Investor has the requisite power and authority to enter into and
perform its obligations under this Agreement, (b) the execution and delivery of
this Agreement by the Investor and the consummation by it of the transactions
contemplated hereby have been duly authorized by all necessary corporate action
on the part of the Investor, and (c) this Agreement has been duly executed and
delivered by the Investor. To the knowledge of the Investor, no other
proceedings on the part of the Investor are necessary to


 


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approve and authorize the
execution and delivery of this Agreement. This Agreement, when executed and
delivered, constitutes a valid and binding obligation of the Investor,
enforceable against the Investor in accordance with its terms, except as such
enforceability may be limited by general principles of equity or applicable
bankruptcy, insolvency, reorganization, moratorium, liquidation or similar laws
relating to, or affecting generally, the enforcement of creditors’ rights and
remedies.


 


3.3           No Conflicts. The
execution, delivery and performance of this Agreement by the Investor, and the
consummation by the Investor of the transactions contemplated hereby will not
(a) result in a violation of the organizational documents of the Investor, or
(b) result in a violation of any statute, law, rule, regulation, writ,
injunction, order, judgment or decree applicable to the Investor, except where
such violation, conflict, breach or other consequence would not have a Material
Adverse Effect. The Investor is not required to obtain any consent,
authorization or order of, or make any filing or registration with, any court
or governmental or regulatory or self-regulatory agency in order for it to
execute, deliver or perform any of its obligations under or contemplated by
this Agreement in accordance with the terms hereof.


 


3.4           Investment
Representations.


 


(a)           The Investor is an “accredited
investor”, as defined in Regulation D promulgated under the Securities Act, and
has such knowledge, sophistication and experience in financial and business
matters that the Investor is capable of evaluating the merits and risks of the
investment in the Securities.


 


(b)           The Investor (i) has
adequate means of providing for its current financial needs and possible
contingencies, and has no need for liquidity of investment in the Company, (ii)
can afford to hold unregistered Securities for an indefinite period of time and
sustain a complete loss of the entire amount of the subscription, and (iii) has
not made an overall commitment to investments which are not readily marketable
that is so disproportionate as to cause such overall commitment to become
excessive.


 


(c)           The Investor agrees and
understands that the Securities are being offered and sold to the Investor in
reliance upon specific exemptions from the registration requirements of the
Securities Act and the rules and regulations promulgated thereunder and that,
in order to determine the availability of such exemptions and the eligibility
of the Investor to acquire the Securities, the Company is relying upon the
truth and accuracy of the Investor’s representations and warranties, and
compliance with the Investor’s covenants and agreements, set forth in this
Agreement. The Investor further agrees with the Company that (i) no Securities
were offered or sold to the Investor by means of any form of general
solicitation or general advertising, and in connection therewith, the Investor
did not (1) receive or review any advertisement, article, notice or other
communication published in a newspaper or magazine or similar media or
broadcast over television or radio, whether closed circuit or generally
available; or (2) attend any seminar meeting or industry investor conference
whose attendees were invited by any general solicitation or general advertising.
The Investor hereby acknowledges that the offering of the Securities has not
been reviewed by the SEC or any state regulatory authority since the offering
of the Securities is intended to be exempt from the registration requirements
of


 


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Section 5 of the
Securities Act pursuant to Regulation D promulgated thereunder. The Investor
understands that the Securities have not been registered under the Securities
Act and agrees not to sell or otherwise transfer the Securities unless they are
registered under the Securities Act or unless an exemption from such
registration is available.


 


(d)           The Securities are
being purchased by the Investor for its own account, for investment purposes
only, not for the account of any other person, or corporation and not with a
view to distribution, assignment or resale to others in whole or in part. The
Investor has no present intention of selling, granting any participation in, or
otherwise distributing the Securities. The Investor does not have any contract,
undertaking, agreement or arrangement with any person to sell, transfer,
pledge, hypothecate, grant any option to purchase or otherwise dispose of any
of the Securities. Nothing herein shall prevent the distribution of any
Securities to any subsidiary, member, partner, stockholder, affiliate or former
member, partner, stockholder or affiliate of the Investor in compliance with
the Securities Act and applicable state “blue sky” laws.


 


(e)           The Investor has had
access to the Company’s SEC Documents and other public filings.


 


(f)            With respect to
corporate tax and other economic considerations involved in an investment in
the Securities, the Investor is not relying on the Company. The Investor has
carefully considered and has, to the extent the Investor believes such
discussion necessary, discussed with its professional legal, tax, accounting
and financial advisors the suitability of an investment in the Securities for
its particular tax and financial situation and has determined that the
Securities are a suitable investment for the Investor.


 


(g)           The Company has made
available to the Investor all documents and information that the Investor has
requested relating to an investment in the Securities.


 


(h)           Subject to the Company’s
disclosures in this Agreement and the SEC Documents, the Investor recognizes
that the Company has generated no revenues to date, is not expected to have any
products commercially available for a number of years, if at all, and that
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 risk factors relating to the purchase of the Securities.


 


(i)            The Investor has not
been formed for the specific purpose of acquiring the Securities.


 


4.             COVENANTS.


 


4.1           Confidentiality.
Each Investor hereby acknowledges that unauthorized disclosure of information
regarding the offering of the Securities pursuant to this Agreement may cause
the Company to violate Regulation FD and each Investor agrees to keep such
information confidential. The Company shall not publicly disclose the name of
any Investor, or include the name of any Investor in any filing with the
Commission or any regulatory agency or trading market, without the prior
written consent of such Investor, except (i) as required by the federal


 


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securities laws and in
connection with the registration statement contemplated by this Agreement and
(ii) to the extent such disclosure is required by law or trading market
regulations.


 


4.2           Restrictions on
Transfer.


 


(a)           Each Investor hereby
agrees, severally and not jointly, that, except in accordance with a
registration statement filed pursuant to Section 5.2 of this Agreement, it will
not dispose of any of such Investor’s Securities (other than pursuant to Rule
144 promulgated under the Securities Act (“Rule 144”) or pursuant to a
registration statement filed with the SEC pursuant to the Securities Act)
unless and until such Investor shall have (A) notified the Company of the
proposed disposition and shall have furnished the Company with a statement of
the circumstances surrounding the proposed disposition and (B) if requested by
the Company, furnished the Company with an opinion of counsel, reasonably
satisfactory in form and substance to the Company and the Company’s counsel, to
the effect that such disposition will not require registration under the Securities
Act. The restrictions on transfer imposed by this Section 4.2 shall cease and
terminate as to the Securities held by an Investor when:  (x) such Securities shall have been
effectively registered under the Securities Act and sold by the holder thereof
in accordance with such registration, or (y) on delivery of an opinion of the
kind described in the preceding sentence with respect to such Securities. Each
certificate evidencing the Securities shall bear an appropriate restrictive
legend as set forth in Section 4.2(b), except that such legend shall not be
required after a transfer is made in compliance with Rule 144 or pursuant to a
registration statement or if the opinion of counsel referred to above is issued
and provides that such legend is not required in order to establish compliance
with any provisions of the Securities Act. The Company agrees that pursuant to
the prior sentence, it will, no later than five Business Days (“Business Day”
shall mean any day banks are open for business in New York, New York) following
(a) receipt by the Company’s transfer agent of a certificate representing
Securities issued with a restrictive legend, accompanied by a certification of
the Investor in form suitable for processing by the Company that a prospectus
has been delivered (in the case of sale pursuant to prospectus, a “Prospectus
Letter”) or customary supporting documentation, including legal opinion if
required pursuant to Clause (B) above, “Supporting Documentation”) and (b)
receipt by the Company of notice of such delivery to the transfer agent and
Prospectus Letter or Supporting Documentation, as the case may be (such notice
to be sent by facsimile to the attention of the Company’s president and CEO at
the fax number set forth in Section 8.6 hereof) deliver or cause to be
delivered (evidence of deposit for next day delivery with a nationally
recognized overnight delivery service shall be deemed delivery) to such
Investor a certificate representing such Securities that is free from all
restrictive and other legends. The Company may not make any notation on its
records or give instructions to any transfer agent of the Company that enlarge
the restrictions on transfer set forth in this Section. In the event the
Prospectus Letter or Supporting Documentation is not in form suitable for
processing by to the Company, the five Business Days shall toll until the
Company receives a Prospectus Letter or Supporting Documentation that is in
form suitable for processing.


 


(b)           Notwithstanding the
provisions of Section 4.2(a), no registration statement or opinion of counsel
shall be necessary for a transfer by an Investor of the Securities to a
subsidiary, member, partner, stockholder or affiliate of that Investor, if the
transferee agrees


 


9

















 


in writing to be subject
to the terms hereof to the same extent as if such transferee were an Investor
hereunder.


 


(c)           It is understood that,
subject to Sections 4.2(a) and 4.2(b), the certificates evidencing the
Securities will bear the following legends:


 


(i)            THESE SECURITIES HAVE
NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 (THE “SECURITIES ACT”) OR
UNDER APPLICABLE STATE SECURITIES LAWS AND MAY NOT BE SOLD, TRANSFERRED OR
OTHERWISE DISPOSED OF UNLESS REGISTERED UNDER THE SECURITIES ACT AND ANY
APPLICABLE STATE SECURITIES LAWS OR PURSUANT TO AVAILABLE EXEMPTIONS FROM SUCH
REGISTRATION, PROVIDED THAT THE SELLER DELIVERS TO THE COMPANY AN OPINION OF
COUNSEL (WHICH OPINION IS REASONABLY SATISFACTORY TO THE COMPANY) CONFIRMING
THE AVAILABILITY OF SUCH EXEMPTION.


 


(ii)           Any legend required by
the laws of any other applicable jurisdiction.


 


4.3           Securities
Compliance. The Company shall take all action necessary to comply with any
federal or state securities laws applicable to the transactions contemplated
hereunder.


 


5.             CONDITIONS TO
INVESTOR OBLIGATIONS AT CLOSING.


 


The
obligations of the Investors to purchase the Securities at the Closing are
subject to the fulfillment on or prior to the Closing of each of the following
conditions:


 


5.1           Representations and
Warranties. The representations and warranties of the Company contained in
Section 2 shall be true in all material respects on and as of the Closing Date
with the same effect as though such representations and warranties had been
made on and as of the Closing Date, except that any representations and
warranties stated as being true and correct as of a date other than the date
hereof shall be true and correct as of such other date.


 


5.2           Performance. The
Company shall have performed and complied with all agreements, obligations and
conditions contained in this Agreement that are required to be performed or
complied with by it on or before the Closing.


 


5.3           Qualifications. All
authorizations, approvals, or permits, if any, of any governmental authority or
regulatory body of the United States or of any state of the United States that
are required in connection with the lawful issuance and sale of the Securities
to the Investors pursuant to this Agreement shall have been duly obtained and
shall be effective on and as of the Closing.


 


5.4           Proceedings and
Documents. All corporate and other proceedings undertaken in connection
with the transactions contemplated at the Closing and all documents incident
thereto shall be reasonably satisfactory in form and substance to each
Investor, and they


 


10

















 


shall have received all
such counterpart original and certified or other copies of such documents as
they may reasonably request.


 


5.5           Absence of
Litigation. No proceeding challenging this Agreement or the transactions
contemplated hereby or thereby, or seeking to prohibit, alter, prevent or delay
the Closing, shall have been instituted against the Company before any court,
arbitrator or governmental body, agency or official and shall be pending.


 


5.6           Compliance
Certificate. The Company shall deliver to the Investors at the Closing,
relating to the Investors’ purchase of Securities, a certificate signed by the
Chief Executive Officer of the Company stating that the Company has complied
with or satisfied each of the conditions to the Investors’ obligation to
consummate the Closing set forth in Sections 6.1 through 6.5, unless waived in
writing by the Investors.


 


5.7           Legal Prohibition.
The purchase of the Securities by the Investors shall not be prohibited by any
law or governmental order or regulation.


 


6.             CONDITIONS TO THE
COMPANY’S OBLIGATIONS AT CLOSING.


 


The obligations of the Company under Section 1 of this
Agreement are subject to the fulfillment on or before the Closing of each of
the following conditions:


 


6.1           Representations and
Warranties. The representations and warranties of each Investor contained
in Section 3 shall be true in all respects on and as of the Closing Date with
the same effect as though such representations and warranties had been made on
and as of the Closing Date, except that any representations and warranties
stated as being true and correct as of a date other than the date hereof shall
be true and correct as of such other date.


 


6.2           Performance. Each
Investor shall have performed and complied with all agreements, obligations and
conditions contained in this Agreement that are required to be performed or
complied with by it on or before the Closing.


 


6.3           Qualifications. All
authorizations, approvals, or permits, if any, of any governmental authority or
regulatory body of the United States or of any state of the United States that
are required in connection with the lawful issuance and sale of the Securities
to the Investors pursuant to this Agreement shall have been duly obtained and
shall be effective on and as of the Closing.


 


6.4           Proceedings and
Documents. All corporate and other proceedings undertaken in connection
with the transactions contemplated by this Agreement and all documents incident
thereto shall be reasonably satisfactory in form and substance to the Company
and its counsel, and they shall have received all such counterpart original and
certified or other copies of such documents as they may reasonably request.


 


11

















 


7.             MISCELLANEOUS.


 


7.1           Survival of
Warranties. The warranties, representations, agreements, covenants and
undertakings of the Company or the Investors contained in or made pursuant to
this Agreement shall survive the execution and delivery of this Agreement and
the Closing and shall in no way be affected by any investigation of the subject
matter thereof made by or on behalf of the Investors or the Company.


 


7.2           Incorporation by
Reference. All Exhibits and Schedules appended to this Agreement are herein
incorporated by reference and made a part hereof.


 


7.3           Successor and
Assignees. All terms, covenants, agreements, representations, warranties
and undertakings in this Agreement made by and on behalf of any of the parties
hereto shall bind and inure to the benefit of the respective successors and
assigns of the parties hereto (including transferees of any Securities) whether
so expressed or not, subject to Section 5.7.


 


7.4           Amendments and
Waivers. Neither this Agreement nor any provision hereof shall be waived,
modified, changed, discharged, terminated, revoked or canceled except by an
instrument in writing signed by the party against whom any change, discharge or
termination is sought. Failure of either party to exercise any right or remedy
under this Agreement or any other agreement between the Company and the
Investors, or otherwise, or delay by the Company or the Investors in exercising
such right or remedy, will not operate as a waiver thereof, nor shall any
single or partial exercise thereof preclude any other or further exercise
thereof or the exercise of any other right, power or privilege. The rights and
remedies herein provided shall be cumulative and not exclusive of any rights or
remedies provided by law.


 


7.5           Governing Law. This
Agreement shall be deemed a contract made under the laws of the State of New
York, without giving effect to the conflicts of law principles thereof.


 


7.6           Notices. All
notices, requests, consents, demands, notice or other communication required or
permitted under this Agreement shall be in writing and shall be deemed duly
given and received when delivered personally or transmitted by facsimile, or
one business day after being deposited for next-day delivery with a nationally
recognized overnight delivery service, or three days after being deposited as
first class mail with the United States Postal Services, all charges or postage
prepaid, and properly addressed:


 


to the Company at:


 


Xenomics, Inc.


One
Deer Park Drive, Suite F

Monmouth Junction, NJ 08852


Tel:  (732) 438-8290


Fax:  (732) 438-8299


Attention:  Executive Chairman


 


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with a copy (which shall not constitute notice) to:


 


Sichenzia
Ross Friedman Ference LLP


1065
Avenue of the Americas


New
York, New York 10018


Fax:
(212) 930-9725


Attention:
Jeffrey J. Fessler


 


or to the Investors at the address set forth opposite
each Investor’s name on Exhibit A hereto


 


or such other address as may be furnished in writing
by a party hereto.


 


7.7           Counterparts. This
Agreement may be executed in counterparts, all of which together shall
constitute one and the same instrument.


 


7.8           Effect of Headings.
The section and paragraph headings herein are included for convenience only and
shall not affect the construction hereof.


 


7.9           Entire Agreement.
This Agreement and the Exhibits and Schedules hereto and thereto constitute the
entire agreement among the Company and the Investors with respect to the
subject matter hereof. There are no representations, warranties, covenants or
undertakings with respect to the subject matter hereof other than those
expressly set forth herein. This Agreement supersedes all prior agreements
between the parties with respect to the Securities purchased hereunder and the
subject matter hereof.


 


7.10         Publicity. Neither
party shall originate any publicity, news release or other public announcement,
written or oral, whether relating to the performance under this Agreement or
the existence of any arrangement between the parties, without the prior written
consent of the other party (which consent shall not be unreasonably withheld or
delayed), except where such publicity, news release or other public
announcement is required by law or by Section 4.1; provided
that, in such event, each such party shall (a) promptly consult the other party
in connection with any such publicity, news release or other public
announcement prior to its release; (b) promptly provide the other party a copy
thereof; and (c) use commercially reasonable efforts to ensure that such portions
of such information as may reasonably be designated by the other party are
accorded confidential treatment by the applicable governmental entity.


 


7.11         Severability. If
any provision of this Agreement is held by a court of competent jurisdiction to
be unenforceable under applicable law, such provision shall be replaced with a
provision that accomplishes, to the extent possible, the original business
purpose of such provision in a valid and enforceable manner, and the balance of
the Agreement shall be interpreted as if such provision were so modified and
shall be enforceable in accordance with its terms.


 


13

















 


7.12         Interpretation. This
Agreement shall be construed according to its fair language. The rule of
construction to the effect that any ambiguities are to be resolved against the
drafting party shall not be employed in the interpretation of this Agreement.


 


7.13         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.


 


7.14         Independent
Nature of Investors’ Obligations and Rights.The obligations of each
Investor under this Agreement are several and not joint with the obligations of
any other Investor, and no Investor shall be responsible in any way for the
performance of the obligations of any other Investor under this Agreement. The
decision of each Investor to purchase Securities pursuant to this Agreement has
been made by such Investor independently of any other Investor and
independently of any information, materials, statements or opinions as to the
business, affairs, operations, assets, properties, liabilities, results of
operations, condition (financial or otherwise) or prospects of the Company
which may have been made or given by any other Investor or by any agent or
employee of any other Investor, and no Investor or any of its agents or
employees shall have any liability to any other Investor (or any other person)
relating to or arising from any such information, materials, statements or
opinions. Nothing contained herein, and no action taken by any Investor
pursuant thereto, shall be deemed to constitute the Investors as a partnership,
an association, a joint venture or any other kind of entity, or create a
presumption that the Investors are in any way acting in concert or as a group
with respect to such obligations or the transactions contemplated by this
Agreement. Each Investor acknowledges that no other Investor has acted as agent
for such Investor in connection with making its investment hereunder and that
no other Investor will be acting as agent of such Investor in connection with
monitoring its investment hereunder. Each Investor shall be entitled to
independently protect and enforce its rights, including without limitation the
rights arising out of this Agreement, and it shall not be necessary for any
other Investor to be joined as an additional party in any proceeding for such purpose.
The Company has elected to provide all Investors with the same terms and form
of this Agreement for the convenience of the Company and not because it was
required or requested to do so by the Investors.


 


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IN WITNESS WHEREOF, this Agreement has been executed
as of the date first above written, by the duly authorized representatives of
the parties hereto.


 


	
   

  	
  XENOMICS, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By: 

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Title:

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  	
  INVESTOR

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Name of Person or Entity

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
      Name:

  
	
   

  	
   

  	
   

  	
      Title: