AGREEMENT
AGREEMENT
This
Agreement (“Agreement”) is made as of October 30, 2007 by and among Bio
Solutions Manufacturing, Inc., a New York corporation (the “Company”) and Xxxxx
X. Xxxxxx (the “Seller”).
RECITALS
A. On
or
about December 8, 2005, Bio Extraction Services, Inc. (“BESI”), a New York
corporation and wholly-owned subsidiary of Bio-Solutions Franchise Corp.
(“BSFC”), acquired the business of Applied Chemical Technologies (the “ACT
Business”) from the Seller for (i) $50,000.00, (ii) 200,000 shares of common
stock of the Company held by BSFC, (iii) 100,000 shares of common stock of
BSFC,
and (iv) a right to receive an additional 100,000 shares of common stock of
BSFC
upon the achievement of certain business milestones.
B. On
or
about June 30, 2006, BSFC sold all of the capital stock of BESI to the Company
in exchange for shares of the Company’s common stock.
C. In
July
2007, in an action pending against the Company in the United States District
Court for the Southern District of Mississippi, Hattiesburg Division (the
“Court”), Civil Action No. 2:07cv000118-KS-MTP (the “Action”), the Company filed
a counterclaim against BSFC, among others, alleging, among other things, that
BSFC’s acquisition of the ACT Business constituted a usurpation of corporate
opportunity.
D. On
or
about October 22, 2007, the parties to the Action, including the Company and
BSFC, entered into a settlement agreement (the “Settlement Agreement”), pursuant
to which the Seller agreed to (i) transfer the 100,000 shares of BSFC common
stock back to BSFC, (ii) waive his right to receive an additional 100,000 shares
of BSFC common stock, and (iii) issue a limited recourse promissory note in
the
amount of $25,000 to BSFC (or its designee).
E. As
additional consideration for Seller’s indirect sale of the ACT Business to the
Company and in consideration for the Seller’s agreement to (i) transfer the
100,000 shares of BSFC common stock back to BSFC, (ii) waive his right to
receive an additional 100,000 shares of BSFC common stock, and (iii) issue
a
limited recourse promissory note in the amount of $25,000 to BSFC (or its
designee), the Company desires to issue 750,000 shares (the “Shares”) of the
Company’s common stock, par value $0.001 per share (the “Common
Stock”),
to the
Seller on the terms and subject to the conditions set forth herein.
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AGREEMENT
It
is
agreed as follows:
1. ISSUANCE
OF SHARES.
1.1 Issuance
of Shares.
In
reliance upon the representations and warranties of the Company and the Seller
contained herein and subject to the terms and conditions set forth herein,
the
Company agrees to issue the Shares to the Seller,
as
follows:
1.1.1 The
Company shall issue 250,000 Shares concurrently with the execution of this
Agreement, or as soon thereafter as practicable.
1.1.2 The
Company shall issue 500,000 Shares upon the earlier of (a) April 30, 2008,
or
(b) no
later
than ten days of the Company’s receipt of a written certification, together with
reasonable documentation, that BESI and/or the Company has received ASTM
approval of B100
bio
diesel fuel converted by BESI and/or the Company from liquid trap xxxxx grease.
1.2 Deemed
Consideration. It
is
intended by the parties hereto that the Shares are considered additional and
supplemental consideration to the Seller for the indirect sale of the ACT
Business to the Company.
2. REPRESENTATIONS
AND WARRANTIES OF THE COMPANY.
The
Company represents and warrants that the following statements are true and
correct in all material respects as of the date hereof, except as expressly
qualified or modified herein.
2.1 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. The
Company is duly qualified to do business as a foreign corporation in every
jurisdiction in which the failure to so qualify would have a material adverse
effect upon the Company.
2.2 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.
2.3 Valid
Issuance of Shares.
The
Shares to be issued hereby, when issued and delivered in accordance with the
terms hereof for the consideration expressed herein, 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.
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2.4 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.
2.5 SEC
Reports and Financial Statements.
2.5.1 The
Company has delivered or made available to the Seller accurate and complete
copies (excluding copies of exhibits) of each report, registration statement
and
definitive proxy statement filed by the Company with the SEC since October
31,
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.
2.5.2 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.
2.6 Securities
Law Compliance.
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.
2.7 Resales
Under Rule 144.
With a
view to making available to the Seller the benefits of Rule 144 promulgated
under the 1933 Act (“Rule 144”) and any other rule or regulation of the SEC that
may at any time permit the Seller to sell the Shares to the public without
registration, the Company will do all of the following:
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2.7.1 use
commercially reasonable efforts to make and keep public information available,
as those terms are understood and defined in Rule 144;
2.7.2 take
such
action, including compliance with the reporting requirements of section 13
or
15(d) of the 1934 Act, as is necessary to enable the Seller to utilize Rule
144;
2.7.3 file
with
the SEC in a timely manner all reports and other documents required of the
Company under the 1933 Act and the 1934 Act; and
2.7.4 furnish
to the Seller, so long as the Seller owns any Conversion Shares, forthwith
upon
written request:
(1) a
written
statement by the Company as to its compliance with the reporting requirements
of
Rule 144, the 1933 Act and the 1934 Act (at any time after it has become subject
to such reporting requirements);
(2) a
copy of
the most recent annual or quarterly report of the Company and such other reports
and documents so filed by the Company;
(3) an
opinion of the Company’s counsel that the Shares may be resold in the absence of
an effective registration thereof under the 1933 Act pursuant to Rule 144;
and
(4) such
other documents as may be reasonably requested in availing the Seller of any
rule or regulation of the SEC that permits the selling of any such Shares
without registration or pursuant to such form.
3. REPRESENTATIONS
AND WARRANTIES OF THE SELLER.
The
Seller
hereby represents, warrants, and covenants with the Company as
follows:
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3.3 Restricted
Securities.
3.3.1 The
Seller has been advised that the Shares have not been registered under the
Securities Act or any other applicable securities laws and that Shares
are being offered and sold pursuant to Section 4(2) of the Securities Act and
Rule
506
of Regulation D thereunder, and that the Company’s reliance upon Section
4(2) and Rule 506 of Regulation D is predicated in part on the Seller
representations as contained herein.
The
Seller acknowledges that the Shares will be issued as “restricted securities” as
defined by Rule 144 promulgated pursuant to the Securities Act. The Shares
may
not be resold in the absence of an effective registration thereof under the
Securities Act and applicable state securities laws unless, in the opinion
of
the Company’s counsel, an applicable exemption from registration is
available.
3.3.3 The
Seller understands and acknowledges that the Shares, when issued, may bear
the
following legend:
THE
SECURITIES EVIDENCED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, OR THE SECURITIES LAWS OF ANY STATE. THE
SECURITIES HAVE BEEN ACQUIRED FOR INVESTMENT AND MAY NOT BE SOLD OR TRANSFERRED
FOR VALUE IN THE ABSENCE OF AN EFFECTIVE REGISTRATION THEREOF UNDER THE
SECURITIES ACT OF 1933 AND/OR THE SECURITIES ACT OF ANY STATE HAVING
JURISDICTION OR AN OPINION OF COUNSEL ACCEPTABLE TO THE CORPORATION THAT SUCH
REGISTRATION IS NOT REQUIRED UNDER SUCH ACT OR ACTS.
3.3.4 The
Seller acknowledges that an investment in the Securities is not liquid and
is
transferable only under limited conditions. The Seller acknowledges that such
securities must be held indefinitely unless they are subsequently registered
under the Securities Act or an exemption from such registration is available.
The Seller is aware of the provisions of Rule 144 promulgated under the
Securities Act, which permits limited resale of restricted securities subject
to
the satisfaction of certain conditions and that such Rule is not now available
and, in the future, may not become available for resale of any of the
Securities.
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3.3.5 The
Seller is an “accredited investor” as defined under Rule 501 under the
Securities Act.
3.3.6 The
Seller acknowledges that it is able to protect its interests in connection
with
the acquisition of the Shares
and can bear the economic risk of investment in such securities without
producing a material adverse change in Seller’s financial condition. Seller,
either alone or with the Seller’s representative(s), otherwise has such
knowledge and experience in financial or business matters that Seller is capable
of evaluating the merits and risks of the investment in the Shares.
3.3.7 The
Seller has a preexisting personal or business relationship with the Company,
one
or more of its officers, directors or controlling persons.
3.3.8 The
Seller represents, warrants and covenants that it is not acquiring the Shares
as
part of a group within the meaning of Section 13(d)(3) of the Securities
Exchange Act of 1934, as amended.”
4. MISCELLANEOUS.
4.1 Governing
Law.
This
Agreement shall be governed by and construed under the laws of the State of
Nevada.
4.2 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.
4.3 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.
4.4 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.
4.5 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 Sellers. 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.
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4.6 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:
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If
to the Company:
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0000
Xxxxxxx Xxxxxx, Xxxxx 0
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Xxx
Xxxxx, XX 00000
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Attention:
Xxxxxxxx Xxxxxxxxx, Secretary
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If
to the Seller:
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Xxxxx
X. Xxxxxx
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000
Xxxxxxxx Xxxxx
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Xxxxxxxxx,
XX 00000
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4.7 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.
IN
WITNESS WHEREOF, the parties have executed this Agreement as of the date set
forth above.
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By:
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Xxxxxxxx
X. Xxxxxxxxx,
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Secretary
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SELLER
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XXXXX
X. XXXXXX
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Xxxxx
X. Xxxxxx
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