SECURITIES PURCHASE AGREEMENT
THIS
SECURITIES PURCHASE AGREEMENT
(“Agreement”),
dated
as of December 12, 2007, is by and among Xxxxxxxxx Plaza ("Purchaser"),
and
each of the purchasers listed on Exhibit
A
attached
hereto (collectively, the “Sellers”
and
individually, a “Seller”).
WITNESSETH
WHEREAS,
Sellers
are the owners of three year warrants to purchase shares of common stock, par
value $0.0001 of Pharma-Bio Serv, Inc. a Delaware corporation (the “Company”).
WHEREAS,
Sellers
desire to sell, transfer and assign to Purchaser warrants to purchase Four
Hundred Sixty Six Thousand, Six Hundred and Sixty Seven (466,667) shares of
common stock of the Company (the “Warrants”) in consideration for $0.77 per
Warrant, as set forth on Schedule A attached hereto, which shall be payable
by
the issuance of a promissory note to each of the Sellers.
NOW
THEREFORE,
in
consideration of the promises and respective mutual agreements herein contained,
it is agreed by and between the parties hereto as follows:
ARTICLE
1
SALE
AND PURCHASE OF THE WARRANTS
1.1 Sale
of the Warrants.
Upon
the terms and conditions herein contained, at the Closing (as hereinafter
defined), the Sellers, severally, each agrees to sell the Warrants to the
Purchaser and the Purchaser hereby agrees to purchase the Warrants from each
of
the Sellers, free and clear of all liens, claims, pledges, mortgages,
restrictions, obligations, security interests and encumbrances of any kind,
nature and description.
1.2 Consideration.
The
purchase price for the Warrants (the "Purchase Price") shall be $0.77 per
warrant (an aggregate of Three Hundred Fifty Nine Thousand, Three Hundred and
Thirty Three Dollars and Fifty Nine Cents ($359,333.59) for all of the Warrants)
which shall be satisfied by the issuance at the time of closing of a Promissory
Note (the “Note”) to each of the Sellers in the amounts set forth on Schedule A
attached hereto.
ARTICLE
2
CLOSING
2.1 Condition
to Closing.
The
sole condition to the consummation of the transactions contemplated hereby
shall
be the Company’s obtaining a National Minority Supplier Development Council
Minority-Controlled Certification (“Certification”) extending beyond December
31, 2007.
2.2 Time
and Place of Closing.
The
closing of the transactions contemplated by this Agreement (the "Closing")
shall
take place at the offices of Sichenzia Xxxx Xxxxxxxx Xxxxxxx LLP, 00 Xxxxxxxx,
Xxx Xxxx, Xxx Xxxx 00000 immediately after the Company receives the
Certification (hereinafter the "Closing Date").
2.3 Delivery
by Seller.
At the
Closing, each of the Sellers shall sell, assign, transfer, convey and deliver
to
the Purchaser warrant certificates representing the Warrants to be sold by
such
Seller free and clear of all liens, claims, charges, equities, encumbrances,
restrictions and voting agreements of every kind. The warrant certificates
shall
be duly endorsed in blank.
2.4 Delivery
by the Purchaser.
At or
prior to the Closing, the Purchaser shall deliver to each of the Sellers a
Note
in the principal amount of the purchase price for the Warrants purchased by
the
Purchaser from such Seller in the form of Exhibit B attached hereto.
2.5 Delivery
by the Company.
The
Purchaser shall cause the Company to issue and deliver new warrant certificates
(the “New Warrants”) to the Purchaser in an amount equal to the number of
Warrants purchased by her hereunder, and to a Seller, in the event that such
Seller delivers a Warrant (pursuant to Section 2.2) to purchase shares of the
Company’s common stock in excess of the number of Warrants sold by such Seller
hereunder, in an amount equal to such excess. The New Warrants shall contain
the
same terms and conditions as the purchased Warrants.
ARTICLE
3
REPRESENTATIONS
AND COVENANTS OF SELLERS
Each
Seller hereby represents and warrants to the Purchaser, severally but not
jointly, and agrees that:
3.1 Status
of the Seller and the Warrants.
Such
Seller is the beneficial owner of the Warrants indicated next to his/its on
Exhibit A attached hereto, and such Warrants are free and clear of all
mortgages, pledges, restrictions, liens, charges, encumbrances, security
interests, obligations or other claims.
3.2 Authorization;
Enforcement.
(i)
such Seller has all requisite power and authority to enter into and perform
this
Agreement and to consummate the transactions contemplated hereby and to sell
the
Warrants, in accordance with the terms hereof, (ii) in the case of a Seller
which is not a natural person, the execution and delivery of this Agreement
by
such Seller and the consummation by it of the transactions contemplated hereby
(including without limitation, the sale of the Warrants to the Purchaser) have
been duly authorized by all necessary corporate, membership or partnership
action on the part of the Seller and no further consent or authorization of
such
Seller is required, (iii) this Agreement has been duly executed and delivered
by
such Seller, and (iv) this Agreement constitutes a legal, valid and binding
obligation of such Seller enforceable against such Seller in accordance with
its
terms, except as such enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium, liquidation or similar laws relating
to,
or affecting generally, the enforcement of creditors’ rights and remedies or by
other equitable principles of general application
3.3 No
Conflicts.
The
execution, delivery and performance of this Agreement by such Seller and the
consummation by such Seller of the transactions contemplated hereby (including,
without limitation, the sale of the Warrants to the Purchaser) will not violate
or conflict with, or result in a breach of any provision of, or constitute
a
default (or an event which with notice or lapse of time or both could become
a
default) under, or give to others any rights of termination, amendment,
acceleration or cancellation of, any agreement, note, bond, indenture or other
instrument to which such Seller is a party, or (iii) result in a violation
of
any law, rule, regulation, order, judgment or decree (including federal and
state securities laws and regulations and regulations of any self-regulatory
organizations to which such Seller is subject) applicable to such Seller. Such
Seller is not required to obtain any consent, authorization or order of, or
make
any filing or registration with, any court, governmental agency, regulatory
agency, self regulatory organization or stock market or any third party in
order
for it to execute, deliver or perform any of its obligations under this
Agreement in accordance with the terms hereof.
2
3.4 No
Brokers.
Such
Seller has taken no action which would give rise to any claim by any person
for
brokerage commissions, finder’s fees or similar payments relating to this
Agreement or the transactions contemplated hereby.
ARTICLE
4
REPRESENTATIONS
AND COVENANTS OF PURCHASER
The
Purchaser represents and warrants to Sellers as follows:
4.1 Investment
Representation.
The
Warrants are being acquired for investment for the Purchaser’s own account, not
as a nominee or agent, and not with a view to the public resale or distribution
thereof within the meaning of the Securities Act of 1933, as amended (the
“Securities Act”), without prejudice, however, to such Purchaser’s right at all
times to sell or otherwise dispose of all or any part of such securities in
compliance with applicable federal and state securities laws and as otherwise
contemplated by this Agreement.
4.2 Suitability.
The
Purchaser understands that the purchase of the Warrants involves substantial
risk. The Purchaser has experience as an investor in securities of companies
and
acknowledges that she can bear the economic risk of her investment in the
Warrants and has such knowledge and experience in financial or business matters
that she is capable of evaluating the merits and risks of this investment in
the
Warrants and protecting her own interests in connection with this
investment.
4.3 Accredited
Investor.
The
Purchaser is an “accredited investor” within the meaning of Regulation D
promulgated under the Securities Act.
4.4 Transferability.
The
Purchaser understands that the Warrants have not been registered under the
Securities Act and will not sell, offer to sell, assign, pledge, hypothecate
or
otherwise transfer any of the Warrants unless (i) pursuant to an effective
registration statement under the Securities Act, (ii) such holder provides
the
Company with an opinion of counsel, in form and substance reasonably acceptable
to the Company, to the effect that a sale, assignment or transfer of the
Warrants may be made without registration under the Securities Act, (iii) such
holder provides the Company with reasonable assurances (in the form of seller
and broker representation letters) that the shares underlying the Warrants
can
be sold pursuant to Rule 144 promulgated under the Securities Act (“Rule
144”)
or (iv)
pursuant to Rule 144(k) promulgated under the Securities Act following the
applicable holding period.
4.5 Authorization;
Enforcement.
The
Purchaser has all requisite power and authority to enter into and perform this
Agreement and to consummate the transactions contemplated hereby and to issue
the Notes to each of the Sellers, in accordance with the terms hereof and
thereof, (ii) this Agreement and each of the Notes have been duly executed
and
delivered by the Purchaser, and (iii) this Agreement and each of the Notes
constitute a legal, valid and binding obligation of the Purchaser enforceable
against the Purchaser in accordance with its terms, except as such
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium, liquidation or similar laws relating to, or
affecting generally, the enforcement of creditors’ rights and remedies or by
other equitable principles of general application
4.6 No
Conflicts.
The
execution, delivery and performance of this Agreement by the Purchaser and
the
consummation by the Purchaser of the transactions contemplated hereby
(including, without limitation, the issuance of the Notes to the Sellers) will
not violate or conflict with, or result in a breach of any provision of, or
constitute a default (or an event which with notice or lapse of time or both
could become a default) under, or give to others any rights of termination,
amendment, acceleration or cancellation of, any agreement, note, bond, indenture
or other instrument to which the Purchaser is a party, or (iii) result in a
violation of any law, rule, regulation, order, judgment or decree (including
federal and state securities laws and regulations and regulations of any
self-regulatory organizations to which the Purchaser is subject) applicable
to
the Purchaser. the Purchaser is not required to obtain any consent,
authorization or order of, or make any filing or registration with, any court,
governmental agency, regulatory agency, self regulatory organization or stock
market or any third party in order for it to execute, deliver or perform any
of
its obligations under this Agreement in accordance with the terms hereof.
4.7 No
Brokers.
The
Purchaser has taken no action which would give rise to any claim by any person
for brokerage commissions, finder’s fees or similar payments relating to this
Agreement or the transactions contemplated hereby.
3
ARTICLE
5
MISCELLANEOUS
5.1 Entire
Agreement.
This
Agreement sets forth the entire agreement and understanding of the parties
hereto with respect to the transactions contemplated hereby, and supersedes
all
prior agreements, arrangements and understandings related to the subject matter
hereof. No understanding, promise, inducement, statement of intention,
representation, warranty, covenant or condition, written or oral, express or
implied, whether by statute or otherwise, has been made by any party hereto
which is not embodied in this Agreement or the written statements, certificates,
or other documents delivered pursuant hereto or in connection with the
transactions contemplated hereby, and no party hereto shall be bound by or
liable for any alleged understanding, promise, inducement, statement,
representation, warranty, covenant or condition not so set forth.
5.2 Notices.
Any
notice, request, instruction, or other document required by the terms of this
Agreement, or deemed by any of the parties hereto to be desirable, to be given
to any other party hereto shall be in writing and shall be given by facsimile,
personal delivery, overnight delivery, or mailed by registered or certified
mail, postage prepaid, with return receipt requested to the address or facsimile
set forth on the signature page hereto. If notice is given by facsimile,
personal delivery, or overnight delivery in accordance with the provisions
of
this Section, said notice shall be conclusively deemed given at the time of
such
delivery. If notice is given by mail in accordance with the provisions of this
Section, such notice shall be conclusively deemed given seven days after deposit
thereof in the United States mail.
5.3 Waiver
and Amendment.
Any
term, provision, covenant, representation, warranty or condition of this
Agreement may be waived, but only by a written instrument signed by the
Purchaser and the Sellers. The failure or delay of any party at any time or
times to require performance of any provision hereof or to exercise its rights
with respect to any provision hereof shall in no manner operate as a waiver
of
or affect such party's right at a later time to enforce the same. No waiver
by
any party of any condition, or of the breach of any term, provision, covenant,
representation or warranty contained in this Agreement, in any one or more
instances, shall be deemed to be or construed as a further or continuing waiver
of any such condition or breach or waiver of any other condition or of the
breach of any other term, provision, covenant, representation or warranty.
No
modification or amendment of this Agreement shall be valid and binding unless
it
be in writing and signed by all parties hereto.
5.4 Choice
of Law.
This
Agreement and the rights of the parties hereunder shall be governed by and
construed in accordance with the laws of the State of New York including all
matters of construction, validity, performance, and enforcement and without
giving effect to the principles of conflict of laws.
5.5 Jurisdiction.
The
parties submit to the jurisdiction of the Courts of the County of New York,
State of New York or a Federal Court empanelled in the State of New York for
the
resolution of all legal disputes arising under the terms of this Agreement,
including, but not limited to, enforcement of any arbitration
award.
5.6 Counterparts.
This
Agreement may be executed in one or more counterparts, each of which shall
be
deemed an original, but all of which shall together constitute one and the
same
instrument.
5.7 Attorneys'
Fees.
If a
dispute should arise between the parties hereunder or under any of the Notes
including, but not limited to arbitration, the prevailing party shall be
reimbursed by the non-prevailing party for all reasonable expenses incurred
in
resolving such dispute, including reasonable attorneys' fees exclusive of such
amount of attorneys' fees as shall be a premium for result or for risk of loss
under a contingency fee arrangement.
5.8 Taxes.
Any
income taxes required to be paid in connection with the payments due hereunder,
shall be borne by the party required to make such payment. Any withholding
taxes
in the nature of a tax on income shall be deducted from payments due, and the
party required to withhold such tax shall furnish to the party receiving such
payment all documentation necessary to prove the proper amount to withhold
of
such taxes and to prove payment to the tax authority of such required
withholding.
4
IN
WITNESS WHEREOF,
the
parties hereto have executed this Agreement, as of the date first written
hereinabove.
PURCHASER:
/s/
Xxxxxxxxx Plaza
XXXXXXXXX
PLAZA
Suite
110
Mendez Vigo 373
Dorado,
PR 00646
SELLERS:
SAN
XXXX
HOLDINGS, INC.
By:/s/
Addison X. Xxxx III
Name:
Addison X. Xxxx III
Title:
Principal
MCS
Plaza, Suite #305
000
Xxxxx
xx Xxxx Xxxxxx
Xxx
Xxxx,
XX 00000
/s/
Xxxxxx Xxxxx
XXXXXX
XXXXX CUSTODIAN FOR XXXXX XXXXXXXX
0
Xxxxxxxx Xxxxx Xxxx
Xxxxxxxx,
XX 00000
/s/
Xxxx Xxxx
XXXX
XXXX
CUSTODIAN FOR XXXXX XXXXX
0
Xxxxxxxxx Xxxxx
Xxxxxxxx,
XX 00000
/s/
Xxxxxx Xxxxx
XXXXXX
XXXXX CUSTODIAN FOR XXXXXXX XXXXXXXX
0
Xxxxxxxx Xxxxx Xxxx
Xxxxxxxx,
XX 00000
/s/
Xxxxxxxx Xxxxxx
XXXXXXXX
XXXXXX
00
Xxxx
Xxxxxx, 0xx Xxxxx
Xxx
Xxxx,
XX 00000
/s/
Xxxxxxx Xxxx
XXXXXXX
XXXX
00
Xxxx
Xxxxxx, 0xx Xxxxx
Xxx
Xxxx,
XX 00000
5
Exhibit
A
|
NAME
|
NUMBER
OF COMMON SHARES UNDERLYING WARRANT
|
WARRANT
CERTIFICATE NO. |
PURCHASE
PRICE
|
|
San
Xxxx Holdings, Inc.
|
125,000
|
$96,250.00
|
|
|
Xxxxxx
Xxxxx custodian for Xxxxx Xxxxxxxx
|
69,870
|
$53,799.90
|
|
|
Xxxxxx
Xxxxx custodian for Xxxxxxx Xxxxxxxx
|
69,870
|
$53,799.90
|
|
|
Xxxx
Xxxx custodian for Xxxxx Xxxxx
|
139,739
|
$107,599.03
|
|
|
Xxxxxxxx
Xxxxxx
|
31,094
|
$23,942.38
|
|
|
Xxxxxxx
Xxxx
|
31,094
|
$23,942.38
|
|
|
TOTAL
|
466,667
|
$359,333.59
|
6
Exhibit
B
PROMISSORY
NOTE
| $___________ |
San
Xxxx ,Puerto Rico
|
|
December
__,
2007
|
FOR
VALUE
RECEIVED, Xxxxxxxxx Plaza (the "Maker"), hereby promises to pay _________ (the
"Holder"), the principal sum of _________________ ($_____) Dollars, in lawful
money of the United States, on the same date she receives the payment due her
on
January 25, 2008 from Pharma Bio Serv Inc. (“PBSV”) pursuant to the agreement
and plan of merger dated January 25, 2006 among Xxxxxxxx Consulting Group Inc.,
PBSV, the Maker and Plaza Acquisition Corp. (the “Due Date”), Maker agrees to
direct PBSV to immediately wire such portion of such payment as is necessary
to
repay in full this Note and all other like promissory notes issued on the date
hereof by Maker pursuant to the Securities Purchase Agreement (“SPA”) dated the
date hereof among Maker, Holder and the holders of all such other promissory
notes in accordance with the wire instructions set forth in the
SPA.
This
Note
can be prepaid in whole or in part at any time without the consent of the
Holder.
This
Note
shall bear interest at the maximum rate permitted by law per annum in the event
the principal amount is not paid on the Due Date.
The
entire unpaid principal balance of this Note and interest accrued with respect
thereto shall be immediately due and payable upon the occurrence of any of
the
following (each, an "Event of Default"):
(a) Application
for, or consent to, the appointment of a receiver, trustee or liquidator for
Maker or of her property;
(b) Admission
in writing of the Maker's inability to pay her debts as they
mature;
(c) General
assignment by the Maker for the benefit of creditors;
(d) Filing
by
the Maker of a voluntary petition in bankruptcy or a petition or an answer
seeking reorganization, or an arrangement with creditors; or
(e) Entering
against the Maker of a court order approving a petition filed against it under
the federal bankruptcy laws, which order shall not have been vacated or set
aside or otherwise terminated within 60 days.
(f) Default
in the payment of the principal or accrued interest on this Note, when and
as
the same shall become due and payable, whether on the Due Date, by acceleration
or otherwise;
7
(g) Default
in any covenant or obligation of Maker in favor of Holder arising pursuant
to
the SPA.
All
rights and remedies available to the Holder pursuant to the provisions of
applicable law and otherwise are cumulative, not exclusive and enforceable
alternatively, successively and/or concurrently after default by Maker pursuant
to the provisions of this Note.
This
Note
may not be changed, modified or terminated orally, but only by an agreement
in
writing, signed by the Holder and the Purchaser.
This
Note
shall be governed by and construed in accordance with the laws of the State
of
New York and shall be binding upon the successors, endorsees or assigns of
the
Maker and inure to the benefit of the Holder, its successors, endorsees and
assigns.
The
Maker
hereby irrevocably consents to the jurisdiction of the courts of State of New
York and the United States District Court for the Southern District of New
York
in connection with any action or proceeding arising out of or relating to this
Note. If any term or provision of this Note shall be held invalid, illegal
or
unenforceable, the validity of all other terms and provisions hereof shall
in no
way be affected thereby.
|
___________________________________
Xxxxxxxxx Xxxxx
|
0
