BIO SOLUTIONS MANUFACTURING, INC. AMENDED AND RESTATED UNIT PURCHASE AGREEMENT (Regulation S)
AMENDED
AND RESTATED
(Regulation
S)
This
Unit
Purchase Agreement (“Agreement”)
is
amended and restated as of May 1, 2006, but is only effective as of the date
of
acceptance of the “Purchaser
Signature Page”
by
and
between Bio Solutions Manufacturing, Inc., a New York corporation (the
“Company”),
and
the purchaser who executes the Purchaser Signature Page hereto (the
“Purchaser”).
R E C I T A L S
A. The
Company desires to obtain funds from each Purchaser in order to provide working
capital to and further the operations of the Company.
B. In
order
to obtain such funds, the Company is offering up to 5,625,000 units (the
“Units”),
each
Unit consisting of one share (each
a
“Share”
and
collectively the “Shares”)
of
common
stock, $.001 par value per share (the “Common
Stock”),
and
a
share
purchase warrant (each a “Warrant”
and
collectively the “Warrants”),
in
the form annexed hereto as Exhibit
A,
to
purchase shares of Common Stock (the “Warrant
Shares”),
on the
terms and subject to the conditions set forth herein.
The
Shares, the Warrants, and the Warrant Shares are collectively referred to herein
as the “Securities”.
AGREEMENT
It
is
agreed as follows:
1. PURCHASE
AND SALE OF UNITS.
1.1 Purchase
and Sale.
In
reliance upon the representations and warranties of the Company and each
Purchaser contained herein and subject to the terms and conditions set forth
herein, at each Closing, each Purchaser shall purchase, and the Company shall
sell and issue to each Purchaser, the number of Units set forth on the Purchaser
Signature Page bearing such Purchaser’s name at a purchase price of $0.40 per
Unit (the “Purchase
Price”).
1.2 Warrants.
On the
Closing Date, the Company will issue and deliver the Warrants to the Purchasers.
One Warrant will be issued for each Share issued on the Closing Date. The
exercise price to acquire a Warrant Share upon exercise of a Warrant shall
be
$0.80 per Warrant Share. The Warrants shall be exercisable until three (3)
years
after the Closing Date.
2. CLOSING(S).
2.1 Date
and Time.
The
closing of the sale of Units contemplated by this Agreement (each a
“Closing”)
shall
occur when the subscriber funds representing the net amount due the Company
from
the Purchase Price of the Offering (as defined in Section 8(c)) is transmitted
by wire transfer or otherwise to or for the benefit of the Company. The
consummation of the transactions contemplated herein for all Closings shall
take
place at the offices of Spectrum Law Group, LLP, 0000 Xxxx Xxxxxx, Xxxxx 000,
Xxxxxx, Xxxxxxxxxx 00000, upon the satisfaction of all conditions to Closing
set
forth in this Agreement. All Closings shall occur on or before July 31, 2006,
unless otherwise extended by the Company (the “Final
Closing Date”).
2.2 Deliveries
by Purchaser.
Each
Purchaser shall deliver the following at such Purchaser’s Closing:
2.2.1 a
completed and executed Purchaser Signature Page.
2.2.2 a
check
or wire transfer to the general account of the Company in the amount of the
Purchase Price for each Unit purchased.
2.3 Deliveries
by Company.
At each
Closing, or as soon thereafter as practicable, the Company will deliver the
following to each Purchaser:
2.3.1 the
certificates representing the Shares purchased by such Purchaser, with each
such
Share being in definitive form and registered in the name of the Purchaser,
as
set forth on the Purchaser Signature Page, against delivery to the Company
by
the Purchaser of the items set forth in paragraph 2.2 above; and
2.3.2 A
duly
executed Warrant certificate for each Unit purchased by such Purchaser, with
each such Warrant certificate being in definitive form and registered in the
name of the Purchaser, as set forth on the Purchaser Signature Page, against
delivery to the Company by the Purchaser of the items set forth in paragraph
2.2
above.
2.4 Each
Closing Identical.
Each
Closing shall be upon substantially identical terms and conditions to those
contained herein. Each Closing may be effected at the Company’s sole election
until all of the Units have been sold, provided that all of such Closings are
held on or prior to the Final Closing Date.
3. REPRESENTATIONS
AND WARRANTIES OF THE COMPANY.
As
a
material inducement to each Purchaser to enter into this Agreement and to
purchase the Units, the Company represents and warrants that the following
statements are true and correct in all material respects as of the date hereof
and will be true and correct in all material respects at Closing, except as
expressly qualified or modified herein.
3.1 Organization
and Good Standing.
The
Company is a corporation duly organized, validly existing, and in good standing
under the laws of the State of New York and has full corporate power and
authority to enter into and perform its obligations under this Agreement, and
to
own its properties and to carry on its business as presently conducted and
as proposed
to be conducted.
3.2 Capitalization.
The
Company is authorized to issue 100,000,000 shares of Common Stock of which,
as
of January 31, 2006, 18,308,687 shares were issued and outstanding, and
10,000,000 shares of preferred stock, no par value, of which no shares are
issued and outstanding. All outstanding shares of Common Stock have been duly
authorized and validly issued, and are fully paid, nonassessable, and free
of
any preemptive rights.
3.3 Validity
of Transactions.
This
Agreement, and each document executed and delivered by the Company in connection
with the transactions contemplated by this Agreement, including this Agreement,
have been duly authorized, executed and delivered by the Company and is each
the
valid and legally binding obligation of the Company, enforceable in accordance
with its terms, except as limited by applicable bankruptcy, insolvency
reorganization and moratorium laws and other laws affecting enforcement of
creditor’s rights generally and by general principles of equity.
3.4 Valid
Issuance of Shares.
The
Shares that are being issued to each Purchaser hereunder, when issued, sold
and
delivered in accordance with the terms hereof for the consideration expressed
herein, and upon exercise of the Warrants, the Warrant Shares, will be duly
and
validly issued, fully paid and nonassessable and free of restrictions on
transfer, other than restrictions on transfer under this Agreement and under
applicable federal and state securities laws, will be free of all other liens
and adverse claims.
3.5 No
Violation.
The
execution, delivery and performance of this Agreement has been duly authorized
by the Company’s Board of Directors and will not violate any law or any order of
any court or government agency applicable to the Company, as the case may be,
or
the Articles of Incorporation or Bylaws of the Company.
3.6 SEC
Reports and Financial Statements.
3.6.1 The
Company has delivered or made available to each Purchaser accurate and complete
copies (excluding copies of exhibits) of each report, registration statement,
and definitive proxy statement filed by the Company with the United States
Securities and Exchange Commission (“SEC”)
since
January 1, 2004 (collectively, with all information incorporated by reference
therein or deemed to be incorporated by reference therein, the “SEC
Reports”). All
statements, reports, schedules, forms and other documents required to have
been
filed by the Company with the SEC have been so filed on a timely basis, except
as indicated in such SEC Reports. As of the time it was filed with the SEC
(or,
if amended or superseded by a filing prior to the date of this Agreement, then
on the date of such filing): (i) each of the SEC Reports complied in all
material respects with the applicable requirements of the Securities Act of
1933, as amended (the “1933
Act”),
or
the Securities Exchange Act of 1934, as amended (the “1934
Act”);
and
(ii) none of the SEC Reports contained any untrue statement of a material fact
or omitted to state a material fact required to be stated therein or necessary
in order to make the statements therein, in the light of the circumstances
under
which they were made, not misleading.
3.6.2 Except
for the pro forma financial statements, the consolidated financial statements
contained in the SEC Reports: (i) complied as to form in all material respects
with the published rules and regulations of the SEC applicable thereto; (ii)
were prepared in accordance with GAAP applied on a consistent basis throughout
the periods covered (except as may be indicated in the notes to such financial
statements and, in the case of unaudited statements, as permitted by Form 10-QSB
of the SEC, and except that unaudited financial statements may not contain
footnotes and are subject to normal and recurring year-end audit adjustments
which will not, individually or in the aggregate, be material in amount); and
(iii) fairly present, in all material respects, the consolidated financial
position of the Company and its consolidated subsidiaries as of the respective
dates thereof and the consolidated results of operations of the Company and
its
consolidated subsidiaries for the periods covered thereby. All adjustments
considered necessary for a fair presentation of the financial statements have
been included.
3.7 No
Material Adverse Change.
Since
January 31, 2006, except as identified and described in the SEC Reports, there
has not been:
(i) any
change in the consolidated assets, liabilities, financial condition or operating
results of the Company from that reflected in the financial statements included
in the Company’s Quarterly Report on Form 10-QSB for the quarter ended January
31, 2006, except for changes in the ordinary course of business which have
not
had and could not reasonably be expected to have a material adverse effect
on
the Company’s assets, properties, financial condition, operating results or
business of the Company and its subsidiaries taken as a whole (as such business
is presently conducted and as it is proposed to be conducted) (a “Material
Adverse Effect”),
individually or in the aggregate;
(ii) any
declaration or payment of any dividend, or any authorization or payment of
any
distribution, on any of the capital stock of the Company, or any redemption
or
repurchase of any securities of the Company;
(iii) any
material damage, destruction or loss, whether or not covered by insurance,
to
any assets or properties of the Company or its subsidiaries;
(iv) any
waiver, not in the ordinary course of business, by the Company or any subsidiary
of a material right or of a material debt owed to it;
(v) any
satisfaction or discharge of any lien, claim or encumbrance or payment of any
obligation by the Company or a subsidiary, except in the ordinary course of
business and which has not had a Material Adverse Effect;
(vi) any
change or amendment to the Company’s Articles of Incorporation or Bylaws, or
material change to any material contract or arrangement by which the Company
or
any subsidiary is bound or to which any of their respective assets or properties
is subject;
(vii) any
material labor difficulties or labor union organizing activities with respect
to
employees of the Company or any subsidiary;
(viii) any
material transaction entered into by the Company or a subsidiary other than
in
the ordinary course of business;
(ix) the
loss
of the services of any key employee, or material change in the composition
or
duties of the senior management of the Company or any subsidiary;
(x) the
loss
or threatened loss of any customer which has had or could reasonably be expected
to have a Material Adverse Effect; or
(xi) any
other
event or condition of any character that has had or could reasonably be expected
to have a Material Adverse Effect.
3.8 Securities
Law Compliance.
Assuming the accuracy of the representations and warranties of each Purchaser
set forth in Section 4 of this Agreement, the offer, issue, sale and delivery
of
the Shares will constitute an exempted transaction under the 1933 Act, and
registration of the Shares under the 1933 Act is not required. The Company
shall
make such filings as may be necessary to comply with the Federal securities
laws, which filings will be made in a timely manner.
4. REPRESENTATIONS
AND WARRANTIES OF EACH PURCHASER.
Each
Purchaser hereby represents, warrants and covenants with the Company as
follows:
4.1 Legal
Power.
Each
Purchaser has the requisite individual, corporate, partnership, limited
liability company, trust, or fiduciary power, as appropriate, and is authorized,
if such Purchaser is a corporation, partnership, limited liability company,
or
trust, to enter into this Agreement, to purchase the Units hereunder, and to
carry out and perform its obligations under the terms of this
Agreement.
4.2 Due
Execution.
This
Agreement has been duly authorized, if such Purchaser is a corporation,
partnership, limited liability company, trust or fiduciary, executed and
delivered by such Purchaser, and, upon due execution and delivery by the
Company, this Agreement will be a valid and binding agreement of such
Purchaser.
4.3 Access
to Information.
Each
Purchaser represents that such Purchaser has been given full and complete access
to the Company for the purpose of obtaining such information as such Purchaser
or its qualified representative has reasonably requested in connection with
the
decision to purchase the Units. Each Purchaser represents that such Purchaser
has received and reviewed copies of the SEC Reports. Each Purchaser represents
that such Purchaser has been afforded the opportunity to ask questions of the
officers of the Company regarding its business prospects and the Units, all
as
such Purchaser or such Purchaser’s qualified representative have found necessary
to make an informed investment decision to purchase the Units.
4.4 No
1933 Act Registration.
The
Purchaser has been advised that the Securities have not been registered under
the 1933 Act or applicable state securities laws and that the Units are being
offered and sold pursuant to Regulation S under the 1933 Act and that the
Company’s reliance upon Regulation S is predicated in part on the
Purchaser’s representations as contained herein.
4.5 Investment
Intent.
The
Purchaser is acquiring the Units for Purchaser’s own account, not as a nominee
or agent, for investment and not with a view to or for resale in connection
with, any distribution or public offering thereof within the meaning of the
1933
Act, except pursuant to an effective registration statement under the 1933
Act.
4.6 Non
U.S. Person.
The
Purchaser is not a U.S. Person (as defined in Regulation S) and is not an
affiliate of the Company (as defined in Regulation S). At the time of the
origination of contact concerning this Agreement, and at the date of execution
and delivery of this Agreement, the Purchaser was outside the United States,
its
territories and possessions.
4.7 Resale
Restrictions.
The
Purchaser:
(a) will
not,
during the period commencing on the date of purchase and ending on the date
one
year after the date of purchase (the “Restricted Period”), offer or sell the
Securities in the United States, its territories or possessions, or to a U.S.
Person or for the account or benefit of a U.S. Person (other than distributors),
other than in accordance with Rules 903 or 904 of Regulation S under
the 1933 Act;
(b) will,
after the expiration of the Restricted Period, offer, sell, pledge or otherwise
transfer the Securities only pursuant to registration under the 1933 Act or
an
available exemption therefrom and, in any case, in accordance with applicable
state and foreign securities laws; and
(c) will
not
to engage in hedging transactions with regard to the Securities.
4.8 Directed
Selling Efforts.
Neither
the Purchaser, its affiliates or any person acting on behalf of the Purchaser
or
any such affiliates has engaged, or will engage, in any Directed Selling Efforts
(as defined in Regulation S under the 0000 Xxx) with respect to the
Securities or any distribution, as that term is used in the definition of
Distributor in Regulation S under the 1933 Act, with respect to the
Securities.
4.9 No
Solicitation.
Neither
the Company nor any person acting on its behalf made to the Purchaser or any
person acting on its behalf in the United States any statement conveying a
purpose or intent to sell the Units to the Purchaser. The person executing
this
agreement on behalf of the Purchaser was outside the United States, its
territories, and possessions at the time of such execution.
4.10 No
Market Conditioning.
Neither
the Purchaser, any affiliate of the Purchaser, nor any person acting on their
behalf has undertaken or carried out any activity for the purpose of, or that
could reasonably be expected to have the effect of, conditioning the market
in
the United States, its territories or possessions, for any of the
Securities.
4.11 No
Scheme.
The
transactions contemplated by this Agreement:
(a) have
not
been pre-arranged with a purchaser located in the United States, its territories
or possessions, or who is a U.S. Person; and
(b) are
not
part of a plan or scheme to evade the registration provisions of the 1933
Act.
4.12 No
Nominee.
The
Purchaser is purchasing the Securities for its own account for the purpose
of
investment and not (A) with a view to, or for sale in connection with, any
distribution thereof, or (B) for the account or on behalf of any U.S.
Person.
4.13 No
Groups.
The
Purchaser is not an entity or group that has been formed principally for the
purpose of investing in securities not registered under the 0000
Xxx.
4.14 Compliance
with Resale Provisions.
If the
Purchaser offers and sells the Securities during the Restricted Period, then
it
will do so only: (a) in accordance with the provisions of
Regulation S; (b) pursuant to registration of the Securities under the
1933 Act; or (c) pursuant to an available exemption from the registration
requirements of the 1933 Act.
4.15 Legend.
The
Purchaser understands that the Securities have not been registered under the
1933 Act and may not be transferred or resold except pursuant to an effective
registration statement or exemption from registration and each certificate
representing the Securities will be endorsed with the following
legend:
THIS
SECURITY HAS NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF
1933,
AS AMENDED (THE “1933 ACT”), AND SUCH SECURITY MAY NOT BE OFFERED, SOLD, PLEDGED
OR OTHERWISE TRANSFERRED EXCEPT (1) PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT UNDER SUCH ACT, (2) IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH
RULE
903 OR RULE 904 OF REGULATION S UNDER THE ACT, OR (3) PURSUANT TO AN
EXEMPTION FROM REGISTRATION AS CONFIRMED IN AN OPINION OF COUNSEL SATISFACTORY
TO THE COMPANY, AND IN EACH CASE IN ACCORDANCE WITH ANY OTHER APPLICABLE
LAW.
4.16 Stop
Transfer.
Purchaser agrees that the Company shall refuse to register any transfer of
the
Securities not made in accordance with Regulation S, pursuant to registration
under the Act, or pursuant to an exemption from registration under the Act,
and
that the Company may place a stop transfer order with its registrar and stock
transfer agent (if any) covering all certificates representing the
Securities.
4.17 Economic
Risk.
Purchaser can bear the economic risk of an investment in the Units, including
the total loss of such investment.
4.18 Suitability.
Purchaser believes, in light of the information provided in this Agreement,
the
purchase of the Units pursuant to the terms of this agreement is an appropriate
and suitable investment for the Purchaser.
4.19 Investment
Knowledge and Experience.
Purchaser is experienced and knowledgeable in financial and business matters,
capable of evaluating the merits and risks of purchasing the securities offered
herein by the Company.
4.20 Indemnification.
Purchaser under takes and agrees to indemnify and hold harmless the Company
and
its directors, officers, servants, employees and agents from and against all
claims, liabilities, losses, damages, costs and expenses of every kind and
nature arising directly or indirectly from inaccuracy of any of the Purchaser’s
representations and warranties contained in this Agreement or from the failure
of Purchaser to take any action required of the Purchaser pursuant to this
Agreement.
4.21 Information.
Purchaser has had the opportunity to ask questions and request information
from
the Company and to receive such information and answers from the Company, or
officer, agent and or representative of the Company, concerning the terms and
conditions of the investment and the general and overall business affairs of
the
Company. Purchaser has further obtained all such additional information
necessary to verify such received information. Purchaser has received such
additional information concerning the Company that the Purchaser considers
necessary or advisable in order to form a decision concerning an investment
in
the Company.
4.22 Subscription
Acceptance.
Purchaser understands
that the Company will notify the Purchaser whether the offered Agreement has
been accepted, in whole or in part, or rejected, in whole or in part. Unless
rejected within ten (10) days of its receipt or on the day of the final date
of
the Offering, whichever comes later, by the Company, the Agreement shall be
deemed to be accepted. If this Agreement is rejected by the Company, all funds
tendered by the Purchaser will be returned, without interest or deduction.
It is
understood that the Company will have the sole discretion to determine which
of
the Agreements should be accepted or rejected, if any, and whether any of such
Agreements should be accepted or rejected in whole or in part.
4.23 Non-Contravention.
The
purchase of the Units by the Purchaser does not contravene any of the applicable
securities legislation in the jurisdiction in which Purchaser resides and does
not trigger: (i) any obligation to prepare and file a prospectus or similar
document or any other report with respect to the purchase, or (ii) any
registration requirement or other securities compliance obligation on the part
of the Company.
5. COVENANTS
OF THE COMPANY.
5.1 Use
of
Proceeds.
The
Company intends to employ the proceeds from the purchase and sale of the Units
for the purposes set forth on Schedule
5.1
hereto.
Except as set forth on Schedule
5.1,
the
proceeds from the purchase and sale of the Units may not and will not be used
for accrued and unpaid officer and director salaries, payment of financing
related debt, redemption of outstanding notes or equity instruments of the
Company, litigation related expenses or settlements, brokerage fees, nor
non-trade obligations outstanding on a Closing Date. Pending the Company’s use
of the proceeds from the purchase and sale of the Units, the Company intends
to
invest the funds in government securities and insured, short-term,
interest-bearing investments of varying maturities. Schedule
5.1 represents
the Company’s best estimate of the allocation of the proceeds from the purchase
and sale of the Units. Future events, including the problems, delays, expenses,
and complications frequently encountered by development stage companies such
as
the Company, as well as changes in economic, regulatory, or competitive
conditions, changes in the Company’s planned business (and its success or
failure), and changes in the Company’s product development activities, may
require that it reallocate funds. It is possible that that the estimates in
Schedule
5.1 will
prove inaccurate, that the Company’s efforts to introduce its products and
services will require considerable additional expenditures, or that unforeseen
events will cause the Company to expend more funds than it currently
expects.
5.2 Business
Combination with Bioremediation Services, Inc.
Upon
the
closing
of the sale of all 5,625,000 Units, the Company shall use commercially
reasonable efforts to acquire and/or merge with Bioremediation Services, Inc.,
a
Mississippi corporation, on terms reasonable acceptable to the Company, the
Purchasers, and Bioremediation Services, Inc. The Company agrees to use
commercially reasonable efforts to commence negotiations with Bioremediation
Services, Inc. as soon as reasonably practicable.
6. REGISTRATION.
6.1 Definitions.
As used
in this Section 6, the following terms shall have the following
meanings:
6.1.1 Exchange
Act:
The
Securities Exchange Act of 1934, as amended, and the rules and regulations
of
the SEC promulgated thereunder.
6.1.2 Losses:
See
Section 6.6 hereof.
6.1.3 Prospectus:
The
prospectus included in any Registration Statement (including, without
limitation, a prospectus that discloses information previously omitted from
a
prospectus filed as part of an effective registration statement in reliance
upon
Securities Act Rule 430A), as amended or supplemented by any prospectus
supplement, with respect to the terms of the offering of any portion of the
Registrable Securities covered by such Registration Statement and all other
amendments and supplements to the prospectus, including post-effective
amendments, and all material incorporated by reference or deemed to be
incorporated by reference in such prospectus.
6.1.4 Registration
Expenses:
All
reasonable expenses incurred by the Company in complying with Sections 6.3
and
6.4 hereof, including, without limitation, all registration and filing fees,
printing expenses, fees and disbursements of counsel for the Company,
accountants’ expenses (including, without limitation, any special audits or
“comfort” letters incidental to or required by any such registration), any fees
or disbursements of underwriters customarily paid by issuers or sellers of
securities (but excluding underwriting discounts and commissions) and blue
sky
fees and expenses in all states reasonably designated by the holders of
Registrable Securities.
6.1.5 Registrable
Securities:
The
Shares, the Prepayment Shares, the Warrant Shares, and any Common Stock issued
or issuable in respect of the Shares or Warrant Shares pursuant to any stock
split, stock dividend, recapitalization, or similar event.
6.1.6 Registration
Statement:
Any
registration statement of the Company which covers any of the Registrable
Securities pursuant to the provisions of this Agreement, including the
Prospectus, amendments and supplements to such registration statement, including
post-effective amendments, all exhibits and all material incorporated by
reference or deemed to be incorporated by reference in such registration
statement.
6.1.7 Rule
144:
Rule 144
under the Securities Act, as such Rule may be amended from time to time, or
any
similar rule or regulation hereafter adopted by the SEC (excluding Rule
144A).
6.1.8 SEC:
The
Securities and Exchange Commission.
6.1.9 Securities
Act:
The
Securities Act of 1933, as amended, and the rules and regulations promulgated
by
the SEC thereunder.
6.1.10 Underwritten
registration or underwritten offering:
A
registration in which securities of the Company are sold to an underwriter
for
reoffering to the public.
6.2 Securities
Subject to the Registration Rights.
The
securities entitled to the benefits of the Registration Rights set forth in
this
Section 6 are the Registrable Securities.
6.3 Registration
Rights.
The
Company shall file with the SEC a Registration Statement (on Form SB-2 or such
other form that it is eligible to use) in order to register the Registrable
Securities for resale and distribution under the Securities Act within the
earlier of (a) thirty days after the Final Closing Date and (b) ninety
(90) days
after
the closing
of the sale of at least 2,500,000
Units
under this Agreement (the
“Filing
Date”)
and
use its best efforts to cause it to be declared effective. The Registrable
Securities shall be reserved and set aside exclusively for the benefit of each
Purchaser and Warrant holder, pro rata,
and not
issued, employed or reserved for anyone other than each such Purchaser and
Warrant holder. The Registration Statement will immediately be amended or
additional registration statements will be immediately filed by the Company
as
necessary to register additional shares of Common Stock to allow the public
resale of all Common Stock included in and issuable by virtue of the Registrable
Securities. The Company will use commercially reasonable efforts to respond
to
any oral or written comments received from the SEC relating to the Registration
Statement within
ten (10) business days after receipt of such comments from the SEC.
6.4 Intentionally
Omitted.
6.5 Expenses
and Procedures.
6.5.1 Expenses
of Registration.
All
Registration Expenses (exclusive of underwriting discounts and commissions)
shall be borne by the Company. Each holder of Registrable Securities shall
bear
all underwriting discounts, selling commissions, sales concessions and similar
expenses applicable to the sale of the Registrable Securities sold by such
holder.
6.5.2 Registration
Procedures.
The
Company will keep the holders of Registrable Securities advised as to the
initiation of registration, qualification and compliance and as to the
completion thereof. At its expense, the Company will furnish such number of
Prospectuses and other documents incident thereto as the holders or underwriters
from time to time may reasonably request.
6.5.3 Information.
The
Company may require each seller of Registrable Securities as to which any
registration is being effected to furnish such information regarding the
distribution of such Registrable Securities as the Company may from time to
time
reasonably request and the Company may exclude from such registration the
Registrable Securities of any seller who unreasonably fails to furnish such
information after receiving such request.
6.5.4 Delay
or Suspension.
Notwithstanding anything herein to the contrary, the Company may, at any time,
suspend the effectiveness of any Registration Statement for a period of up
to 60
consecutive days or 90 days in the aggregate in any calendar year, as
appropriate (a “Suspension
Period”),
by
giving notice to each holder of Registrable Securities to be included in the
Registration Statement, if the Company shall have determined, after consultation
with its counsel, that the Company is required to disclose any material
corporate development which the Company determines could reasonably be expected
to have a material effect on the Company. Each holder of Registrable Securities
agrees by acquisition of such Registrable Securities that, upon receipt of
any
notice from the Company of a Suspension Period, such holder shall forthwith
discontinue disposition of such Registrable Securities covered by such
Registration Statement or Prospectus until such holder (i) is advised in
writing by the Company that the use of the applicable Prospectus may be resumed,
(ii) has received copies of a supplemental or amended prospectus, if
applicable, and (iii) has received copies of any additional or supplemental
filings which are incorporated or deemed to be incorporated by reference in
such
Prospectus. The Company shall prepare, file and furnish to each holder of
Registrable Securities immediately upon the expiration of any Suspension Period,
appropriate supplements or amendments, if applicable, to the Prospectus and
appropriate documents, if applicable, incorporated by reference in the
Registration Statement. The Company agrees to use its best efforts to cause
any
Suspension Period to be terminated as promptly as possible.
6.5.5 Blue
Sky.
The
Company will, as expeditiously as possible, use its best efforts to register
or
qualify the Registrable Securities covered by a Registration Statement under
the
securities or blue sky laws of such jurisdictions as the Company deems
appropriate or, in the case of an underwritten public offering, the managing
underwriter shall reasonably request, provided that the Company shall not be
required in connection therewith or as a condition thereto to qualify to do
business in any jurisdiction where it is not so qualified or to take any action
which would subject it to taxation or service of process in any jurisdiction
where it is not otherwise subject to such taxation or service of
process.
6.5.6 Notification
of Material Events.
The
Company will, as expeditiously as possible, immediately notify each holder
of
Registrable Securities under a Registration Statement, at any time when a
prospectus relating thereto is required to be delivered under the Securities
Act, of the happening of any event as a result of which the Prospectus contained
in such Registration Statement, as then in effect, includes an untrue statement
of a material fact or omits to state any material fact required to be stated
therein or necessary to make the statements therein not misleading in the light
of the circumstances then existing and, as expeditiously as possible, amend
or
supplement such Prospectus to eliminate the untrue statement or the
omission.
6.6 Indemnification.
6.6.1 Indemnification
by Company.
The
Company shall, without limitation as to time, indemnify and hold harmless,
to
the full extent permitted by law, each holder of Registrable Securities, its
officers, directors, agents and employees, each person who controls such holder
(within the meaning of Section 15 of the Securities Act or Section 20 of the
Exchange Act), and the officers, directors, agents or employees of any such
controlling person, from and against all losses, claims, damages, liabilities,
costs (including, without limitation, all reasonable attorneys’ fees) and
expenses (collectively “Losses”),
as
incurred, arising out of or based upon any untrue statement or alleged untrue
statement of a material fact contained in any Registration Statement, Prospectus
or preliminary prospectus or any amendment or supplement thereto, or arising
out
of or based upon any omission or alleged omission of a material fact required
to
be stated therein or necessary to make the statements therein in light of the
circumstances under which they were made (in the case of any Prospectus) not
misleading, except insofar as the same are based solely upon information
furnished to the Company by such holder for use therein; provided, however,
that
the Company shall not be liable in any such case to the extent that any such
Loss arises out of or is based upon an untrue statement or alleged untrue
statement or omission made in any preliminary prospectus or Prospectus if (i)
such holder failed to send or deliver a copy of the Prospectus or Prospectus
supplement with or prior to the delivery of written confirmation of the sale
of
Registrable Securities and (ii) the Prospectus or Prospectus supplement would
have corrected such untrue statement or omission. If requested, the Company
shall also indemnify underwriters, selling brokers, dealer managers and similar
securities industry professionals participating in the distribution, their
officers, directors, agents and employees and each person who controls such
persons (within the meaning of Section 15 of the Securities Act or Section
20 of
the Exchange Act) to the same extent as provided above with respect to the
indemnification of the holders of Registrable Securities.
6.6.2 Indemnification
by Holder of Registrable Securities.
In
connection with any Registration Statement in which a holder of Registrable
Securities is participating, such holder of Registrable Securities shall furnish
to the Company in writing such information as the Company may reasonably request
for use in connection with any Registration Statement or Prospectus. Such holder
hereby agrees to indemnify and hold harmless, to the full extent permitted
by
law, the Company, and its officers, directors, agents and employees, each person
who controls the Company (within the meaning of Section 15 of the Securities
Act
or Section 20 of the Exchange Act), and the officers, directors, agents or
employees of any such controlling person, from and against all losses, as
incurred, arising out of or based upon any untrue statements or alleged untrue
statement of material fact contained in any Registration Statement, Prospectus
or preliminary prospectus, or arising out of or based upon any omission of
a
material fact required to be stated therein or necessary to make the statements
therein in light of the circumstances under which they were made (in the case
of
any Prospectus) not misleading, to the extent, but only to the extent, that
such
untrue statement or omission is contained in any information so furnished in
writing by such holder to the Company for use in such Registration Statement,
Prospectus or preliminary prospectus. The Company shall be entitled to receive
indemnities from accountants, underwriters, selling brokers, dealer managers
and
similar securities industry professionals participating in the distribution
to
the same extent as provided above with respect to information so furnished
by
such persons specifically for inclusion in any Registration Statement,
Prospectus or preliminary prospectus, provided, that the failure of the Company
to obtain any such indemnity shall not relieve the Company of any of its
obligations hereunder. Notwithstanding any provision of this Section 6.6 to
the contrary, the liability of a holder of Registrable Securities under this
Section 6.6 shall not exceed the purchase price received by such holder for
the Registrable Securities sold pursuant to a Registration Statement or
Prospectus.
6.6.3 Conduct
of Indemnification Proceedings.
If any
action or proceeding (including any governmental investigation or inquiry)
shall
be brought or any claim shall be asserted against any person entitled to
indemnity hereunder (an “indemnified
party”),
such
indemnified party shall promptly notify the party from which such indemnity
is
sought (the “indemnifying
party”)
in
writing, and the indemnifying party shall assume the defense thereof, including
the employment of counsel reasonably satisfactory to the indemnified party
and
the payment of all fees and expenses incurred in connection with the defense
thereof. All such fees and expenses (including any fees and expenses incurred
in
connection with investigation or preparing to defend such action or proceeding)
shall be paid to the indemnified party, as incurred, within 20 days of written
notice thereof to the indemnifying party; provided, however, that if, in
accordance with this Section 6.6, the indemnifying party is not liable to the
indemnified party, such fees and expenses shall be returned promptly to the
indemnifying party. Any such indemnified party shall have the right to employ
separate counsel in any such action, claim or proceeding and to participate
in
the defense thereof, but the fees and expenses of such counsel shall be the
expense of such indemnified party unless (a) the indemnifying party has
agreed to pay such fees and expenses, (b) the indemnifying party shall have
failed promptly to assume the defense of such action, claim or proceeding and
to
employ counsel reasonably satisfactory to the indemnified party in any such
action, claim or proceeding, or (c) the named parties to any such action,
claim or proceeding (including any impleaded parties) include both such
indemnified party and the indemnifying party, and such indemnified party shall
have been advised by counsel that there may be one or more legal defenses
available to it which are different from or additional to those available to
the
indemnifying party (in which case, if such indemnified party notifies the
indemnifying party in writing that it elects to employ separate counsel at
the
expense of the indemnifying party, the indemnifying party shall not have the
right to assume the defense of such action, claim or proceeding on behalf of
such indemnified party, it being understood, however, that the indemnifying
party shall not, in connection with any one such action, claim or proceeding
or
separate but substantially similar or related actions, claims or proceedings
in
the same jurisdiction arising out of the same general allegations or
circumstances, be liable for the reasonable fees and expenses of more than
one
separate firm of attorneys (together with appropriate local counsel) at any
time
for all such indemnified parties, unless in the opinion of counsel for such
indemnified party a conflict of interest may exist between such indemnified
party and any other of such indemnified parties with respect to such action,
claim or proceeding, in which event the indemnifying party shall be obligated
to
pay the fees and expenses of such additional counsel or counsels). No
indemnifying party will consent to entry of any judgment or enter into any
settlement which does not include as an unconditional term thereof the release
of such indemnified party from all liability in respect to such claim or
litigation without the written consent (which consent will not be unreasonably
withheld) of the indemnified party. No indemnified party shall consent to entry
of any judgment or enter into any settlement without the written consent (which
consent will not be unreasonably withheld) of the indemnifying party from which
indemnify or contribution is sought.
6.6.4 Contribution.
If the
indemnification provided for in this Section 6.6 is unavailable to an
indemnified party under Section 6.6.1 or 6.6.2 hereof (other than by reason
of
exceptions provided in those Sections) in respect of any Losses, then each
applicable indemnifying party in lieu of indemnifying such indemnified party
shall contribute to the amount paid or payable by such indemnified party as
a
result of such Losses, in such proportion as is appropriate to reflect the
relative fault of the indemnifying party and indemnified party in connection
with the actions, statements or omissions which resulted in such Losses as
well
as any other relevant equitable considerations. The relative fault of such
indemnifying party and the indemnified party shall be determined by reference
to, among other things, whether any action in question, including any untrue
statement or alleged untrue statement of a material fact or omission or alleged
omission of a material fact, has been taken or made by, or relates to
information supplied by, such indemnifying party or indemnified party, and
the
parties’ relative intent, knowledge, access to information and opportunity to
correct or prevent such action, statement or omission. The amount paid or
payable by a party as a result of any Losses shall be deemed to include, subject
to the limitations set forth in Section 6.6.3, any legal or other fees or
expenses reasonably incurred by such party in connection with any action, suit,
claim, investigation or proceeding.
The
parties hereto agree that it would not be just and equitable if contribution
pursuant to this Section 6.6.4 were determined by pro rata allocation or by
any
other method of allocation which does not take into account the equitable
considerations referred to in the immediately preceding paragraph. No person
guilty of fraudulent misrepresentation (within the meaning of Section 11(f)
of
the Securities Act) shall be entitled to contribution from any person who was
not guilty of such fraudulent misrepresentation.
6.7 Rule
144.
The
Company shall file the reports required to be filed by it under the Securities
Act and the Exchange Act and the rules and regulations adopted by the SEC
thereunder, and will take such further action as any holder of Registrable
Securities may reasonably request, all to the extent required from time to
time
to enable such holder to sell Registrable Securities without registration under
the Securities Act within the limitation of the exemption provided by Rule
144
or Rule 144A. Upon the request of any holder of Registrable Securities, the
Company shall deliver to such holder a written statement as to whether the
Company has complied with such requirements. Notwithstanding the foregoing,
nothing in this Section 6.7 shall be deemed to require the Company to register
any of its securities under any section of the Exchange Act.
6.8 Underwritten
Registrations.
No
holder of Registrable Securities may participate in any underwritten
registration hereunder unless such person (i) agrees to sell such holder’s
Registrable Securities on the basis provided in any underwriting arrangements
approved by the persons entitled hereunder to approve such arrangements, and
(ii) completes and executes all
questionnaires, powers of attorney, indemnities, underwriting agreements and
other documents required under the terms of such underwriting
arrangements.
7. BROKER/LEGAL
FEES.
7.1 Investment
Banker’s Commission.
The
Company on the one hand, and each Purchaser (for himself only) on the other
hand, agrees to indemnify the other against and hold the other harmless from
any
and all liabilities to any persons claiming brokerage commissions or similar
fees other than the entity identified on Schedule
7
hereto,
(“Investment
Banker”)
on
account of services purported to have been rendered on behalf of the
indemnifying party in connection with this Agreement or the transactions
contemplated hereby and arising out of such party’s actions. Anything in this
Agreement to the contrary notwithstanding, each Purchaser is providing
indemnification only for such Purchaser’s own actions and not for any action of
any other Purchaser. Each Purchaser’s liability hereunder is several and not
joint. The Company agrees that it will pay the Investment Banker the fees set
forth on Schedule
7
hereto
(“Investment
Banker’s Fees”).
The
Company represents that there are no other parties entitled to receive fees,
commissions, or similar payments in connection with the offering described
in
this Agreement except the Investment Banker.
7.2 Legal
Fees.
The
Company shall pay to Spectrum Law Group, LLP, the Company’s legal fees and costs
due and owing to Spectrum Law Group, LLP as of the Closing Date and a deposit
of
$25,000 (“Company’s
Legal Fees”)
as
reimbursement for services rendered, and a deposit for future services to be
rendered, to the Company, including those services rendered in connection with
this Agreement, the offering of the Units (the “Offering”),
and
those services to be rendered in connection with the Registration Statement.
The
Company’s Legal Fees will be payable on the initial Closing Date out of funds
held pursuant to the Escrow Agreement.
8. MISCELLANEOUS.
8.1 Indemnification.
Each
Purchaser agrees to defend, indemnify and hold the Company harmless against
any
liability, costs or expenses arising as a result of any dissemination of any
of
the Shares by such Purchaser in violation of the 1933 Act or applicable state
securities law.
8.2 Governing
Law.
This
Agreement shall be governed by and construed under the laws of the State of
New
York.
8.3 Successors
and Assigns.
Except
as otherwise expressly provided herein, the provisions hereof shall inure to
the
benefit of, and be binding upon, the successors, assigns, heirs, executors,
and
administrators of the parties hereto.
8.4 Entire
Agreement.
This
Agreement and the Exhibits hereto and thereto, and the other documents delivered
pursuant hereto and thereto, constitute the full and entire understanding and
agreement among the parties with regard to the subjects hereof and no
party shall
be
liable or bound to any other party in any manner by any representations,
warranties, covenants, or agreements except as specifically set forth herein
or
therein. Nothing in this Agreement, express or implied, is intended to confer
upon any party, other than the parties hereto and their respective successors
and assigns, any rights, remedies, obligations, or liabilities under or by
reason of this Agreement, except as expressly provided herein.
8.5 Severability.
In case
any provision of this Agreement shall be invalid, illegal, or unenforceable,
it
shall to the extent practicable, be modified so as to make it valid, legal
and
enforceable and to retain as nearly as practicable the intent of the parties,
and the validity, legality, and enforceability of the remaining provisions
shall
not in any way be affected or impaired thereby.
8.6 Amendment
and Waiver.
Except
as otherwise provided herein, any term of this Agreement may be amended, and
the
observance of any term of this Agreement may be waived (either generally or
in a
particular instance, either retroactively or prospectively, and either for
a
specified period of time or indefinitely), with the written consent of the
Company and the Purchasers, or, to the extent such amendment affects only one
Purchaser, by the Company and such Purchaser. Any amendment or waiver effected
in accordance with this Section shall be binding upon each future holder of
any
security purchased under this Agreement (including securities into which such
securities have been converted) and the Company.
8.7 Notices.
All
notices and other communications required or permitted hereunder shall be in
writing and shall be effective when delivered personally, or sent by telex
or
telecopier (with receipt confirmed), provided that a copy is mailed by
registered mail, return receipt requested, or when received by the addressee,
if
sent by Express Mail, Federal Express or other express delivery service (receipt
requested) in each case to the appropriate address set forth below:
If
to the
Company: Bio
Solutions Manufacturing, Inc.
0000
Xxxxx Xxxxxx
If
to the
Purchaser: At
the
address set forth on the Purchaser’s Signature Page
8.8 Faxes
and Counterparts.
This
Agreement may be executed in one or more counterparts. Delivery of an executed
counterpart of the Agreement or any exhibit attached hereto by facsimile
transmission shall be equally as effective as delivery of an executed hard
copy
of the same. Any party delivering an executed counterpart of this Agreement
or
any exhibit attached hereto by facsimile transmission shall also deliver an
executed hard copy of the same, but the failure by such party to deliver such
executed hard copy shall not affect the validity, enforceability or binding
nature effect of this Agreement or such exhibit.
8.9 Titles
and Subtitles.
The
titles of the paragraphs and subparagraphs of this Agreement are for convenience
of reference only and are not to be considered in construing this
Agreement.
[REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK]
--
IN
WITNESS WHEREOF, the parties have executed this Agreement as of the date set
forth on the Purchase Signature Page hereto.
PURCHASER
(By
Counterpart Form - SP Pages)
COMPANY
By:
Xxxxx
X.
Xxxxxxx,
President
--
PURCHASER
SIGNATURE PAGE
The
undersigned Purchaser has read the Unit Purchase Agreement amended and restated
as of May 1, 2006 and acknowledges that execution of this Purchaser Signature
Page shall constitute the undersigned’s execution of such
agreement.
I
hereby
subscribe for an aggregate of _________ Units at $0.40 per Unit and hereby
deliver good funds with respect to this subscription for the Units.
I
am a
resident of the country of __________________.
Please
print above the exact name(s) in which the Units/Shares are to be
held
My
address is:
SP-
Executed
this _____ day of [June]/[July], 2006 at ____________________,
________________.
SIGNATURES
INDIVIDUAL
|
Signature
(Individual)
|
Name
Street
address
|
|
Address
to Which Correspondence Should be
Directed
|
|
Signature
(All record holders should sign)
|
City,
State and Zip Code
|
|
Name(s)
Typed or Printed
|
Tax
Identification or Social Security Number
(
)
Telephone
Number
|
|
Name(s)
Typed or Printed (All recorded holders should sign)
|
SP-
CORPORATION,
PARTNERSHIP, TRUST ENTITY OR OTHER
|
Address
to Which Correspondence Should be
Directed:
|
|
Type
of Entity (i.e., corporation, partnership, etc.)
|
Street
Address
|
|
By:
*Signature
|
Tax
Identification or Social Security Number
|
|
State
of Formation of Entity
|
City,
State and Zip Code
|
|
Name
Typed or Printed
|
|
Its:
Title
|
(
)
Telephone
Number
|
*If
Units
are being subscribed for by an entity, the Certificate of Signatory must also
be
completed.
SP-
CERTIFICATE
OF SIGNATORY
To
be
completed if Units are being subscribed for by an entity.
I,__________________________________,
am the ___________________________ of
(the
“Entity”).
I
certify
that I am empowered and duly authorized by the Entity to execute and carry
out
the terms of the Unit Purchase Agreement and to purchase and hold the shares
of
Common Stock and the Warrants. The Unit Purchase Agreement has been duly and
validly executed on behalf of the Entity and constitutes a legal and binding
obligation of the Entity.
IN
WITNESS WHEREOF, I have hereto set my hand this ______ day of
[June]/[July], 2006.
|
Signature
|
SP-
ACCEPTANCE
AGREED
AND ACCEPTED:
By:
Xxxxx
X.
Xxxxxxx,
President
Date:
[June]/[July] __, 2006
SP-
SCHEDULE
5.1
USE
OF PROCEEDS
$157,500 Investment
Banker Fee
$10,000 Investment
Banker Expense Reimbursement
$25,000 Legal
Fees
$2,057,500 Working
capital and general corporate expenses
Schedule
5.1
SCHEDULE
7
INVESTMENT
BANKER: T
&
T
Vermögensverwaltungs AG
Xxxxxxxxxxxxxx
00
0000
Xxxxxx
Cash
Fee.
The
Company agrees that it will pay the Investment Banker, on each Closing Date,
a
fee of seven percent (7%) of the Purchase Price (“Investment
Banker’s Cash Fee”).
The
Company represents that there are no other parties entitled to receive fees,
commissions, or similar payments in connection with the Offering except the
Investment Banker.
Investment
Banker’s Shares.
On the
Closing Date after
the
closing
of the sale of at least 2,500,000 Units, the Company will issue to the
Investment Banker 250,000 shares of the Company’s Common Stock, and on the
Closing Date after
the
closing
of the sale of all 5,625,000 Units, the Company will issue to the Investment
Banker an additional 250,000 shares of the Company’s Common Stock (collectively,
the “Investment
Banker’s Shares”).
Expense
Reimbursement.
On the
initial Closing Date, the Investment Banker will also be paid ten thousand
dollars ($10,000) as reimbursement of Company’s Legal Fees advanced by the
Investment Banker.
All
the
representations, covenants, warranties, undertakings, remedies, indemnification,
and other rights including but not limited to reservation requirements and
registration rights made or granted to or for the benefit of the Purchasers
are
hereby also made and granted to and for the benefit of the Investment Banker
in
respect of the Investment Banker’s Shares.
