NOTE PURCHASE
AGREEMENT
This Note Purchase
Agreement (this "Agreement") is entered into this 12 th
day of February, 2007, by and between BioLife Solutions, Inc., a
Delaware corporation having its executive offices at 171 Front
Street, Owego, NY 13827 (the "Company") and Thomas Girschweiler,
with an address at Wissmannstrasse 15, 8057 Zurich, Switzerland
(the "Investor").
W I T N E S S E T
H:
WHEREAS, the Company is
seeking to raise up to $1,000,000 through the sale of promissory
notes bearing interest at the rate of seven percent (7%) per annum
(each, a “Note”), which Note, plus all accrued interest
thereon, (a) shall become due and payable in one lump sum on the
earlier of (i) February 12, 2009 or (ii) an Event of Default (as
defined in the Note), and (b), at the option of the Investor, may
be converted into New Equity Securities (as defined in the Note)
upon the consummation of a Financing (as defined in the Note) at a
per share or per unit price equal to 85% of the per share or per
unit purchase price of the New Equity Securities sold in the
Financing; and
WHEREAS, the Company
anticipates contracting for the sale of the Notes with non U.S.
Persons (the term "U.S. Persons" being defined in Regulation S
("Regulation S") of the Securities Act of 1933, as amended (the
"Act")), in reliance upon an exemption from registration provided
for under Regulation S of the Act; and
WHEREAS, the Company
desires to sell to the Investor, and the Investor desires to
purchase from the Company, a Note in the principal amount of
$375,000.00US;
NOW, THEREFORE, in
consideration of the premises and the mutual covenants contained
herein, the parties agree as follows:
1.
Purchase and Sale
of Note; Delivery of Securities; Payment; Loan Origination
Fee .
.
Purchase and Sale of
Note .
The Company hereby sells, transfers, and assigns to the
Investor, and the Investor hereby purchases and acquires from the
Company, a Note in the principal amount of $375,000.00US (the
"Purchase Price").
1.2
Payment of Purchase
Price; Delivery of Note . Concurrently with the
execution and delivery of this Agreement, (a) the Investor is
delivering to the Company a certified or cashier's check (or other
form of payment acceptable to the Company, in its sole discretion)
in an amount equal to the Purchase Price, or shall transfer such
sum to the account of the Company by wire transfer, and (b) the
Company is delivering, or within a reasonable period of time, will
deliver, to the Investor the Note purchased hereunder, which shall
be in definitive form registered in the name of the
Investor.
1.3
Loan Origination
Fee .
In consideration for the purchase by Investor of the Note,
the Company will pay to Investor, as soon as practicable after the
date hereof, a Loan Origination Fee of $37,500.00US (10% of the
Purchase Price), payable in shares of the Company’s Common
Stock (the “Fee Shares”), which Fee Shares shall be
valued at the closing price therefor on the OTCBB on the day
preceding the date hereof.
2.
Representations,
Warranties, and Covenants of Investor . Investor hereby represents
and warrants to , and covenants with, the Company as
follows:
2.1
Offshore
Transaction .
() Investor is not a U.S. person ("U.S. Person") as that term
is defined in Regulation S; () the Note and the Fee Shares were not
offered to Investor in the United States; () at the time of
execution of this Agreement and the time of any offer to Investor
to purchase the Note hereunder and receive the Fee Shares as a Loan
Origination Fee, Investor was physically outside the United States;
() Investor is purchasing the Note and acquiring the Fee Shares for
Investor’s own account and not for the account of or for the
benefit of any U.S. Person; and () Investor is not an underwriter,
dealer, distributor, or other person who is participating, pursuant
to a contractual arrangement, in the distribution of the Note
offered or sold or the Fee Shares delivered in reliance on
Regulation S.
2.2
Investor's
Independent Investigation . Investor, in subscribing for
the Note and receiving the Fee Shares hereunder, has relied solely
upon an independent investigation made by Investor and
Investor’s representatives, if any, and has, prior to the
date hereof, been given access to and the opportunity to examine
all books and records of the Company, and all material contracts
and documents of the Company which have been filed as exhibits to
the Company's filings made under the Act and the Securities
Exchange Act of 1934, as amended (the "Exchange Act"). In
making Investor’s investment decision to purchase the Note
and receive the Fee Shares, Investor is not relying on any oral or
written representations or assurances from the Company or any other
person other than as set forth in this Agreement. Investor
has received and reviewed the Company's Annual Report on Form
10-KSB for the year ended December 31, 2005 and the Company's Form
10-QSB for the quarters ended March 31, 2006 and June 30, 2006, and
September 30, 2006. Investor has such experience in business
and financial matters that Investor is capable of evaluating the
risk of Investor’s investment and determining the suitability
of Investor’s investment. Investor is an accredited
investor as defined in Rule 501 of Regulation D promulgated under
the Act.
2.3
Investor's Economic
Risk .
Investor understands and acknowledges that an investment in
the Note involves a high degree of risk. Investor
acknowledges that there are limitations on the liquidity of the
Note and the Fee Shares. Investor represents that Investor is
able to bear the economic risk of an investment in the Note,
including a possible total loss of investment. In making this
statement Investor hereby represents and warrants to the Company
that Investor has adequate means of providing for Investor's
current needs and contingencies; and that Investor is able to
afford to hold the Note and the Fee Shares for an indefinite
period. Further, Investor has no present need for liquidity
in the Note or the Fee Shares and Investor is willing to accept
such investment risks.
2.4
No Government
Recommendation or Approval . Investor understands that no
United States federal or state agency, or similar agency of any
other country, has reviewed, approved, passed upon, or made any
recommendation or endorsement of the Company or the purchase of the
Note.
2.5
Company's Reliance on
Representations of Investor . Investor understands that
the Note is being offered and sold and the Fee Shares delivered to
Investor in reliance on specific exemptions from the registration
requirements of U.S. securities laws and that the Company is
relying upon the truth and accuracy of the representations,
warranties, agreements, acknowledgments, and understandings of
Investor set forth herein in order to determine the applicability
of such exemptions to Investor’s acquisition of the Note and
Fee Shares and suitability to acquire the Note.
2.6
Note and Fee Shares
Not Registered Under the Act or Any State Act
. Investor
understands that the offer and sale of the Note and delivery of the
Fee Shares have not been registered under the Act or any state
securities laws ("State Acts") and that they are being offered and
sold and delivered pursuant to Regulation S based in part upon the
representations of Investor contained herein. The Note and
Fee Shares may not be offered, sold, or otherwise transferred in
the United States or to U.S. Persons unless such offers, sales, and
transfers are registered under the Act and applicable State Acts or
are made pursuant to an available exemption from the registration
requirements of those laws.
2.7
Investment
Intent .
Investor is acquiring the Note and Fee Shares for
Investor’s own account for investment and not as a nominee
and not with a view to the distribution thereof. Investor
understands that Investor must bear the economic risk of this
investment indefinitely unless the Note and Fee Shares are
registered pursuant to the Act and any applicable State Acts, or an
exemption from such registration is available. Investor
represents and warrants to the Company, as of the date of this
Agreement, that Investor has no present plan or intention to sell
the Note or Fee Shares in the United States at any predetermined
time, and has made no predetermined arrangements to sell the Note
or Fee Shares.
2.8
Investor's Power and
Authority .
Investor has the full power and authority to execute,
deliver, and perform this Agreement. This Agreement, when
executed and delivered by Investor, will constitute a valid and
legally binding obligation of Investor, enforceable in accordance
with its terms.
2.9
Representation
Regarding Signatory . Investor represents and
warrants that Investor's signatory, if any, is duly authorized to
execute this Agreement on behalf of Investor.
2.10
No Tax Advice From
Company or Its Agents . Investor has had an
opportunity to review with Investor’s own tax advisors the
foreign, U.S. federal, state and local tax consequences of this
investment, and the transactions contemplated by this Agreement.
Investor is relying solely on such advisors and not on any
statements or representations of t
