|
Exhibit 10.9
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 .
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 $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 the Company or any o
|
