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Exhibit 10.19
NOTE PURCHASE AGREEMENT
This Note Purchase Agreement (this "Agreement")
is entered into this 4th day of September, 2007, by and between
BioLife Solutions, Inc., a Delaware corporation having its
executive offices at 3303 Monte Villa Parkway, Suite 310,
Bothell, WA 98021 (the "Company") and Walter Villiger, with an
address at Paradiesstrasse 35, 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) September 30, 2008 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
100% 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 $500,000;
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 $500,000 (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.
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 was 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, Investor was physically outside the United States; ()
Investor is purchasing the Note 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 in reliance on Regulation S.
2.2
Investor's Independent Investigation .
Investor, in subscribing for the Note 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, 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, 2006 and
the Company's Form 10-QSB for the quarters ended March 31, 2007
and June 30, 2007. 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.
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 for an indefinite period. Further, Investor
has no present need for liquidity in the Note 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 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 suitability to
acquire the Note.
2.6
Note Not Registered Under the Act or Any
State Act . Investor understands that the offer and
sale of the Note has 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 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 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 is 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 in the United States
at any predetermined time, and has made no predetermined
arrangements to sell the Note.
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 Company or any of its agents and
understands that Investor (and not the Company) shall be
responsible for Investor's own tax liability that may arise as a
result of this investment or the transactions contemplated by
this Agreement.
2.11
No Legal Advice from Company or Its
Agents . Investor acknowledges that Investor has had
the opportunity to review this Agreement and the transac
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