NOTE PURCHASE
AGREEMENT
This Note Purchase
Agreement (this "Agreement") is entered into this 13 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 Walter Villiger, with
an address at Paradiesstrasse 25 CH – 8645 Jona, 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 13, 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 .
1.1
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
2 $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 .
(a) Investor is not a U.S. person ("U.S. Person") as that term is
defined in Regulation S; (b) the Note and the Fee Shares were not
offered to Investor in the United States; (c) 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;
(d) 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 (e) 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 the Com
