STOCKHOLDERS’ AGREEMENT
STOCKHOLDERS’ AGREEMENT
This
Stockholders’ Agreement (this “Agreement”) dated as
of July10, 2009 (the “Effective Date”) is
by and between MyoCardioCare, Inc., a Delaware corporation (“MCC”), and Biophan
Technologies, Inc., a Nevada corporation (“BIOPHAN”). MCC and BIOPHAN
are individually a “Party”, and together
are the “Parties,” to this
Agreement.
WHEREAS,
MCC has determined that it is in its business interest to acquire certain assets
and intellectual property of BIOPHAN and BIOPHAN has determined it is in its
business interest to sell such assets and Intellectual property to MCC;
and
WHEREAS,
in connection with the sale of assets and intellectual property, BIOPHAN will
receive a 20% ownership interest in MCC;
NOW
THEREFORE, in consideration of the mutual covenants and agreements set forth
herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Parties agree as
follows:
1. Rights of First
Refusal.
(a) After
an initial sale of financing by MCC, which shall take place before December 31,
2009, before any shares of MCC Stock, or any beneficial interest therein, may be
sold, by MCC, such shares shall first be offered to BIOPHAN as set forth
below.
(b) MCC
shall deliver a notice (the “Notice”) to BIOPHAN stating (i) its intention to
sell securities, (ii) the number of securities proposed to be sold or
transferred (the “Noticed Shares”), and (iii) the price for which it is proposed
to sell or transfer the Noticed Shares and the terms of payment of that price
and other terms and conditions of sale.
(c) Within
five business days following receipt of the Notice, Biophan must notify MCC in
writing of its intention to purchase all or some of the Noticed Shares (pro rata on the basis
of BIOPHAN’s beneficial ownership interest in MCC at the time of the Notice) on
the same price, terms and conditions set forth in the
Notice. Biophan shall have thirty (30) days to deliver
the purchase price for the Noticed Shares and complete the closing of the
Noticed Shares.
(d) In
the case of a transfer of shares of MCC Stock not involving a sale, the fair
market value of the shares shall be determined in good faith by the MCC’s Board
of Directors. Fair market value shall be determined after taking into account
any potential initial public offering or private sale, with no discount for lack
of control, minority interest, marketability, or any other discount. The fair
market value of any Stockholder’s shares shall be such Stockholder’s percentage
interest in the fair market value of the Company as a whole.
(e) If
BIOPHAN (including any Permitted Assignees) does not elect to purchase the
Noticed Shares, then MCC may sell the Noticed Shares to any purchaser at the
price specified in the Notice or at a higher price, provided that such sale or
transfer is consummated within five (5) months
of the date of the Notice to BIOPHAN.
(f) MCC
may, at any time prior to the sale, withdraw the Notice.
2. Tag-Along_Rights.
(a) If
MCC, at any time or from time to time, enters into an agreement to sell its
shares in a public offering (a “Tag-Along Sale”), then BIOPHAN shall have the
right, but not the obligation, to participate in such Tag-Along Sale by selling
up to its pro
rata interest (pro rata on the basis
of BIOPHAN’s beneficial ownership interest in MCC at the time of the Tag-Along
Sale)
(b) Any
such participation by BIOPHAN shall be on the same terms and conditions as the
proposed Tag-Along Sale, including any lock-up provisions.
3. Miscellaneous.
(a) No Third Party
Beneficiaries. Except as specifically provided in this
Agreement, this Agreement shall not confer any rights or remedies upon any
Person other than the Parties and their respective successors and permitted
assigns.
(b) Entire
Agreement. Except as agreed to by the Parties in writing, this
Agreement, the Schedules and Exhibits hereto, and the Ancillary Agreements
constitute the entire agreement among the Parties and supersedes any prior
understandings, agreements or representations by or among the Parties, whether
written or oral, with respect to the subject matter hereof.
(c) Assignment. No
Party may assign either this Agreement or any of its rights, interests or
obligations under this Agreement without the prior written approval of the other
Parties; provided, however,
that MCC may, without notice to or consent of BIOPHAN, (i) assign all of its
rights and interests and delegate all of its obligations under this Agreement to
a Third Party in connection with the sale of all or substantially all of the
capital stock of MCC or all or substantially all of the assets to which this
Agreement relates (whether by merger, consolidation or otherwise) to such Third
Party, provided that such Third Party executes a counterpart to this Agreement
acknowledging and agreeing to assume all such obligations of MCC and its
Affiliates under this Agreement; (ii) assign all of its rights and interests to
one or more of its Affiliates; (iii) assign right, title and interest in and to
any of the Assigned Intellectual Property Rights to any Party; and (iv)
designate one or more of its Affiliates to perform its obligations under this
Agreement provided that such designation shall not relieve MCC from its
obligations under this Agreement. Subject to the foregoing, this
Agreement shall be binding upon and inure to the benefit of the Parties named
herein and their respective successors and permitted assigns.
(d) Counterparts. This
Agreement may be executed in one or more counterparts, each of which shall be
deemed an original but all of which together shall constitute one and the same
instrument.
(e) Headings. The
Section headings contained in this Agreement are inserted for convenience only
and shall not affect in any way the meaning or interpretation of this
Agreement.
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(f) Notices. All
communications between BIOPHAN and MCC relating to this Agreement and the
subject matter hereof shall be directed to the persons designated to receive
notices set forth herein or such other individuals as they may
designate. All notices, requests, demands, claims and other
communications under this Agreement shall be in writing. Any notice,
request, demand, claim or other communication under this Agreement shall be
deemed duly given (i) when delivered personally to the recipient, (ii) upon
confirmation of facsimile (with a confirmation copy to be sent by overnight
delivery) or (iii) one business day following the date sent when sent by
overnight delivery, at the following address:
If to
BIOPHAN:
BIOPHAN
Technologies, Inc.
00 Xxxxxx
Xxxxx
Xxxxxxxxx,
XX 00000
Attention: Xxxx
Xxxxxxxxx, CEO
If to
MCC:
MyoCardioCare,
Inc.
0000
Xxxxxxxx Xxx
Xxxx
Xxxxxxx, XX 00000-0000
Attention: Xxxxx
X. Xxxxxxxx, President
Any Party
may change the named individual and address to which notices, requests, demands,
Claims and other communications under this Agreement are to be delivered by
giving the other Party notice in the manner herein set forth.
(g) Governing
Law. This Agreement shall be governed by and construed in
accordance with the domestic laws of the State of New York without giving effect
to any choice or conflict of law provision or rule (whether of the State of New
York or any other jurisdiction) that would cause the application of the laws of
any jurisdiction other than the State of New York. The Parties hereto
submit to the exclusive jurisdiction of the State and Federal courts in the
State of New York and Monroe County with respect to any dispute.
(h) Amendments and
Waivers. No amendment of any provision of this Agreement shall
be valid unless the same shall be in writing and signed by MCC and
BIOPHAN. No waiver by any Party of any provision of this Agreement or
any default, misrepresentation or breach of warranty or covenant under this
Agreement, whether intentional or not, shall be valid unless the same shall be
in writing and signed by the Party making such waiver nor shall such wavier be
deemed to extend to any prior or subsequent default, misrepresentation or breach
of warranty or covenant under this Agreement or affect in any way any rights
arising by virtue of any prior or subsequent such occurrence. Any
consent, waiver or amendment signed by BIOPHAN shall be deemed the consent,
waiver or amendment of BIOPHAN and its affiliates and any consent, waiver or
amendment signed by a Representative of MCC shall be deemed the consent, waiver
or amendment of MCC’s affiliates pursuant hereto.
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(i) Severability. Any
term or provision of this Agreement that is invalid or unenforceable in any
situation in any jurisdiction shall not affect the validity or enforceability of
the remaining terms and provisions hereof or the validity or enforceability of
the offending term or provision in any other situation or in any other
jurisdiction. In the event that any term or provision of this
Agreement would, under applicable law, be invalid or unenforceable in any
respect, each Party intends that such provision will be construed by modifying
or limiting it so as to be valid and enforceable to the maximum extent
compatible with, and possible under, applicable law. For any such
invalid or unenforceable provision, the Parties shall use commercially
reasonable efforts to negotiate a substitute valid and enforceable provision
while preserving to the fullest extent possible the intent and agreements of the
Parties set forth herein.
[Signature
Page Follows]
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IN WITNESS WHEREOF, each of the
undersigned has executed this Agreement as an agreement under seal as of the
date first above written.
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MYOCARDIOCARE,
INC.
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By:
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/s/Xxxxx X. Xxxxxxxx | ||
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Name:
Xxxxx X. Xxxxxxxx
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Title:
President
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BIOPHAN
TECHNOLOGIES, INC
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By:
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/s/ Xxxx Xxxxxxxxx | ||
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Name:
Xxxx Xxxxxxxxx
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Title:
Chief Executive Officer
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