Exhibit 10
SECURITIES PURCHASE AGREEMENT
THIS SECURITIES PURCHASE AGREEMENT (this "Agreement"), is entered into as of
August 27, 2003, by and between Transgenomic, Inc., a Delaware corporation (the
"Company"), and each of the undersigned purchasers (each a "Purchaser" and
collectively, the "Purchasers").
RECITALS
WHEREAS, the Company desires to raise additional equity capital through issuance
and sale of up to 4,500,000 shares (the "Shares") of its common stock, par value
$0.01 per share (the Common Stock") and, in connection therewith, has engaged
Fahnestock & Co. Inc. (the "Placement Agent") to serve as its exclusive
placement agent for the sale of the Shares; and
WHEREAS, the Company proposes to sell to the Purchasers, and the Purchasers
propose to purchase from the Company all of the Shares on the terms and
conditions set forth herein;
NOW, THEREFORE, in consideration of the mutual covenants and agreements
contained in this Agreement, and for other good and valuable consideration the
receipt and adequacy of which is hereby acknowledged, the Company and the
Purchasers agree as follows:
A.
PURCHASE AND SALE OF COMMON SHARES
(1)
AGREEMENT TO SELL AND PURCHASE THE SHARES.
SUBJECT TO THE TERMS
AND CONDITIONS HEREINAFTER SET FORTH, THE COMPANY AGREES TO SELL TO THE
PURCHASERS, AND THE PURCHASERS AGREE TO BUY FROM THE COMPANY, THE SHARES AT THE
CLOSING (AS DEFINED IN SECTION A2 HEREOF) AT A PURCHASE PRICE EQUAL TO $1.00 PER
SHARE.
THE NUMBER OF SHARES THAT WILL BE PURCHASED BY EACH PURCHASER IS SET
FORTH OPPOSITE THEIR RESPECTIVE NAMES ON THE SIGNATURE PAGE OF THIS AGREEMENT.
(2)
DELIVERY OF THE SHARES AT THE CLOSING.
THE PURCHASE AND SALE OF
THE SHARES (THE "CLOSING") SHALL OCCUR AS SOON AS PRACTICABLE AND AS AGREED BY
THE PARTIES HERETO FOLLOWING NOTIFICATION BY THE STAFF OF THE SECURITIES AND
EXCHANGE COMMISSION (THE "COMMISSION") TO THE COMPANY OF THE STAFF'S WILLINGNESS
TO DECLARE THE REGISTRATION STATEMENT TO BE FILED BY THE COMPANY PURSUANT TO
SECTION D1 HEREOF (THE "REGISTRATION STATEMENT") EFFECTIVE UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE "SECURITIES ACT").
THE PLACE AND TIME OF THE
CLOSING (THE "CLOSING DATE") WILL BE AGREED UPON BY THE COMPANY AND THE
PLACEMENT AGENT AND OF WHICH THE PURCHASERS WILL BE NOTIFIED.
At the Closing, the Company shall deliver the Shares to the Purchasers
registered in the name of the Purchasers, or in such nominee name(s) as
designated by the Purchasers in writing.
Shares will be delivered to a
Purchaser in either certificated or uncertificated form, as requested by the
Purchaser.
If Shares are issued in certificated form, the certificates shall be
in such denominations as the Purchaser requests in writing no less than two days
prior to the Closing Date and will bear any necessary and appropriate legend
referring to the fact that the Shares were sold in reliance upon the exemption
from registration under the Securities Act provided by Section 4(2) thereof and
Rule 506 thereunder.
The Company will promptly substitute replacement
certificates without the legend at the request of the Purchaser as long