EXHIBIT 10.3
INVESTOR RIGHTS AGREEMENT
This Investor Rights Agreement (this "AGREEMENT") is made as of October 29,
2004 (the "AGREEMENT DATE"), by and among A-Fem Medical Corporation, a Nevada
corporation (the "COMPANY"), and the individuals and entities listed on Exhibit
A hereto (each an "INVESTOR").
BACKGROUND
A. The Company, the Investors and Xxxxxxx, Xxxxx & Co., a New York
limited partnership ("GOLDMAN"), have entered into a Stock and Warrant Purchase
Agreement (the "PURCHASE AGREEMENT") of even date herewith pursuant to which
Goldman desires to sell to the Investors and the Investors desire to purchase
from Goldman the Shares (as such term is defined in the Purchase Agreement) and
Warrants (as such term is defined in the Purchase Agreement).
B. A condition to the obligations under the Purchase Agreement is that
the Company and the Investors enter into this Agreement in order to provide (i)
the Investors with certain rights of first offer with respect to certain
issuances by the Company of its securities and (ii) the holders of a majority of
the shares of Series A Preferred Stock the right to nominate two members of the
Board of Directors of the Company.
AGREEMENT
In consideration of the mutual agreements contained in this Agreement, the
parties agree as follows:
1. RIGHT OF FIRST OFFER. Subject to the terms and conditions specified
in this Section 1, the Company grants to each Investor a right of first offer
with respect to future sales by the Company of any shares of, or securities
convertible into or exercisable for any shares of, any class of its capital
stock or any other securities of the Company ("ADDITIONAL SECURITIES"). Each
time the Company proposes to offer Additional Securities to any person (an
"PROPOSED OFFER"), the Company shall first make an offering of such Additional
Securities to each Investor in accordance with this Section 1.
1.1 With respect to each Proposed Offer, the Company shall deliver
a notice (an "OFFER NOTICE") to each Investor stating (i) the Company's bona
fide intention to offer Additional Securities, (ii) the number of Additional
Securities to be offered, and (iii) the price and terms, if any, upon which it
proposes to offer such Additional Securities.
1.2 Within 15 calendar days after delivery of the Offer Notice
(the "ELECTION PERIOD"), each Investor shall have the right to elect to purchase
or obtain, at the price and on the terms specified in the Offer Notice, up to
that portion of the Additional Securities subject to such Offer Notice equal to
the proportion that the number of shares of Common Stock of the Company ("COMMON
STOCK") issued and held, or issuable upon conversion and exercise of all
convertible or exercisable securities then held, by such Investor bears to the
total number of shares of Common Stock then outstanding (assuming full
conversion and exercise of all convertible or exercisable securities) (the "PRO
RATA SHARE").
1 INVESTOR RIGHTS AGREEMENT
1.3 The Company shall deliver to each Investor, within 5 calendar
days after the expiration of the Election Period, a notice setting forth the
amount of Additional Securities to be purchased by each Investor and the
percentage of such Investor's Pro Rata Share that such purchase represents (the
"ELECTION RESULTS NOTICE").
1.4 The Company may, during the 30-day period following the
expiration of the Election Period, offer the remaining unsubscribed portion of
the Additional Securities to any person or persons at a price not less than, and
upon terms no more favorable to the offeree than those specified in the Offer
Notice. If the Company does not enter into an agreement for the sale of the
Additional Securities within such period, or if such agreement is not
consummated within 20 days of the execution thereof, the rights provided to the
Investors hereunder shall be deemed to be revived and such Additional Securities
shall not be offered unless first reoffered to the Investors in accordance
herewith.
1.5 The right of first offer in this Section 1 shall not be
applicable (i) to the issuance or sale of capital stock of the Company (or
warrants or options therefor) to employees, consultants and directors, for
compensation purposes pursuant to plans or agreements approved by the Board;
(ii) to the issuance of securities pursuant the exercise or conversion of
outstanding options, warrants, notes or other rights to acquire securities of
the Company; (iii) to the issuance of securities in connection with a bona fide
business acquisition of or by the Company, whether by merger, consolidation,
sale of assets, sale or exchange of stock or otherwise; and (iv) to the issuance
of securities pursuant to any stock split, stock dividend or recapitalization by
the Company. In addition to the foregoing, the right of first offer in this
Section 1 shall not apply with respect to any Investor and any subsequent
securities issuance, if (a) at the time of such subsequent securities issuance,
the Investor is not an "accredited investor," as that term is then defined in
Rule 501(a) under the Securities Act of 1933, as amended, and (b) such
subsequent securities issuance is otherwise being offered only to accredited
investors.
2. PURCHASE RIGHT FOR FAILURE TO EXERCISE RIGHT OF FIRST OFFER. If with
respect to any Proposed Offer an Investor shall fail to purchase its entire Pro
Rata Share of the Additional Securities subject to such Proposed Offer (a
"NON-PARTICIPATING INVESTOR"), then, with the written consent of Investors
holding at least a majority of the shares of Common Stock (assuming conversion
of all convertible securities then held by the Investors) then held by all of
the Investors ("DILUTED INVESTOR SHARES"), the Investors which are not
Non-Participating Investors (the "PARTICIPATING INVESTORS") shall collectively
have a right, exercisable within 10 business days after the Elections Result
Notice to purchase from each Non-Participating Investor all of such
Non-Participating Investor's Shares at a purchase price equal to the aggregate
amount of the Purchase Price (as such term is defined in the Purchase Agreement)
paid by such Non-Participating Investor pursuant to the Purchase Agreement. If
more than one Participating Investor elects to purchase a Non-Participating
Investor's Shares pursuant to the foregoing sentence, each electing
Participating Investor shall each have a right to purchase a portion of such
Non-Participating Investor's Shares equal to the quotient of (x) the number of
Diluted Investor Shares held such electing Participating Investor divided by (y)
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the aggregate number of Diluted Investor Shares held by all electing
Participating Investors, or such other allocation as may be agreed to among such
electing Participating Investors.
2 INVESTOR RIGHTS AGREEMENT
3. LOCK-UP.
3.1 PERIOD OF LOCK-UP. Each Investor agrees that, with respect to
each Proposed Offer, such Investor shall not, directly or indirectly, sell,
offer to sell, contract to sell (including any short sale), grant any option to
purchase or otherwise transfer or dispose of any securities of the Company
beneficially owned by such Investor at any time during the period beginning on
the date of the Offer Notice relating to such Proposed Offer and ending on (a)
the date 180 days after the date of the closing of the purchase and sale of the
Additional Securities which are the subject of such Proposed Offer, if such
Investor is a Non-Participating Investor with respect to such Proposed Offer, or
(b) the date of the closing of the purchase and sale of Additional Securities by
such Investor, if such Investor is a Participating Investor with respect to such
Proposed Offer.
3.2 STOP-TRANSFER INSTRUCTIONS. In order to enforce the covenants
in Section 3.1, the Company may impose stop-transfer instructions with respect
to securities of the Company held by each Investor.
3.3 WAIVER OF LOCK-UP. The restrictions set forth in Sections 3.1
and 3.2 may be waived from time to time by Investors holding a majority of the
shares of Common Stock (assuming conversion and exercise of all convertible or
exercisable securities then held by the Investors and as adjusted for stock
splits, stock dividends or recapitalizations) then held by the Investors
3.4 LEGEND. Each certificate or other instrument representing
securities of the Company held by each Investor may be endorsed with the
following legend:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO A
LOCK-UP AGREEMENT, AS SET FORTH IN THAT CERTAIN INVESTOR RIGHTS
AGREEMENT ENTERED INTO BETWEEN THE ORIGINAL HOLDER OF THIS CERTIFICATE
AND THE COMPANY, A COPY OF WHICH MAY BE OBTAINED AT THE PRINCIPAL
OFFICE OF THE COMPANY. THE LOCK-UP AGREEMENT IS BINDING ON TRANSFEREES
OF THIS CERTIFICATE.
4. SERIES A BOARD REPRESENTATIVE.
4.1 So long as the Investors collectively hold at least 4,000,000
shares of Common Stock (assuming conversion and exercise of all convertible or
exercisable securities then held by the Investors and as adjusted for stock
splits, stock dividends or recapitalizations), the holders of a majority of such
shares shall be entitled to designate two nominees to the Board of Directors of
the Company (the "BOARD") and the Board shall nominate such designated persons
for election to the Board at the next meeting of the shareholders of the
Company.
4.2 So long as the Investors collectively hold at least 2,000,000
but less than 4,000,000 shares of Common Stock (assuming conversion and exercise
of all convertible or exercisable securities then held by the Investors and as
adjusted for stock splits, stock dividends
3 INVESTOR RIGHTS AGREEMENT
or recapitalizations), the holders of a majority of such shares shall be
entitled to designate one nominee to the Board and the Board shall nominate such
designated persons for election to the Board at the next meeting of the
shareholders of the Company.
5. MISCELLANEOUS.
5.1 SUCCESSORS AND ASSIGNS. Except as otherwise provided in this
Agreement, the terms and conditions of this Agreement shall inure to the benefit
of and be binding upon the respective permitted successors and assigns of the
parties (including transferees of any of the Preferred Stock or any Common Stock
issued upon conversion thereof). The rights of each Investor under this
Agreement are only assignable by such Investor: to its partners if the Investor
is a partnership; to its members if the Investor is a limited liability company;
to an entity in which the Investor owns at least 50 percent of the outstanding
voting securities; to any person which owns at least 50 percent of the
Investor's outstanding voting securities; or to any investment fund managed by
or under the control of the managing entity of the Investor or any partner or
member thereof. The assignees of rights under this Agreement must agree in
writing to be bound by the terms and conditions of this Agreement before the
Company must give effect to the assignment or transfer.
5.2 AMENDMENTS AND WAIVERS. Unless otherwise explicitly provided
herein, any term of this Agreement may be amended or waived only with the
written consent of the Company and Investors holding a majority of the shares of
Common Stock (assuming conversion and exercise of all convertible or exercisable
securities then held by the Investors and as adjusted for stock splits, stock
dividends or recapitalizations) then held by the Investors.
5.3 NOTICES, ETC. All notices and other communications required or
permitted hereunder shall be in writing and shall be deemed given and served for
all purposes when personally delivered, three business days after a writing is
deposited in the United States mail, first class postage prepaid, or one
business day after a writing is deposited with a nationally recognized overnight
courier service for overnight delivery, delivery fees prepaid addressed (a) if
to an Investor, to such Investor's address on file with the Company or at such
other address as such Investor shall have furnished to the Company in writing,
or (b) if to the Company, at X.X. Xxx 0000, Xxxxxxxxxxx, XX 00000, Attention:
Xxxxxxx Xxxxxxx, or such other address as the Company shall have furnished to
each Investor in writing.
5.4 SEVERABILITY. In case any provision of this Agreement shall be
found by a court of law to be invalid, illegal or unenforceable, the validity,
legality and enforceability of the remaining provisions of this Agreement shall
not in any way be affected or impaired thereby.
5.5 GOVERNING LAW. This Agreement shall be construed in accordance
with, and governed in all respects by, the laws of the State of Oregon, without
giving effect to principles of conflicts of laws.
5.6 COUNTERPARTS AND FACSIMILE DELIVERY. This Agreement may be
executed in counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument. Any signature page
delivered by facsimile transmission
4 INVESTOR RIGHTS AGREEMENT
shall be binding to the same extent as an original signature page, with regard
to any agreement subject to the terms hereof or any amendment thereto. Any party
who delivers such a signature page agrees to later deliver an original
counterpart to any party who requests it.
5.7 TITLES AND SUBTITLES. The titles of the sections and
subsections of this Agreement are for convenience or reference only and are not
to be considered in construing this Agreement.
5.8 ENTIRE AGREEMENT. This Agreement constitutes the full and
entire understanding and agreement between the parties with regard to the
subjects hereof and they supersede, merge and render void every other prior
written or oral understanding or agreement among or between the parties hereto.
5.9 ATTORNEYS' FEES. In the event that any dispute among the
parties to this Agreement should result in litigation, the prevailing party in
such dispute shall be entitled to recover from the losing party all fees, costs
and expenses of enforcing any right of such prevailing party under or with
respect to this Agreement, including such reasonable fees and expenses of
attorneys and accountants, which shall include all fees, costs and expenses of
appeals.
5.10 INDEPENDENT NATURE OF INVESTORS' OBLIGATIONS AND RIGHTS. The
obligations of each Investor under this Agreement are several and not joint with
the obligations of any other Investor, and no Investor shall be responsible in
any way for the performance of the obligations of any other Investor under this
Agreement. Nothing contained in this Agreement, and no action taken by any
Investor pursuant thereto, shall be deemed to constitute the Investors as a
partnership, an association, a joint venture or any other kind of entity, or
create a presumption that the Investors are in any way acting in concert or as a
group with respect to such obligations or the transactions to be consummated
pursuant to this Agreement. Each Investor shall be entitled to independently
protect and enforce its rights, including the rights arising out of this
Agreement, and it shall not be necessary for any other Investor to be joined as
an additional party in any proceeding for such purpose. Each Investor represents
that it has been represented by its own separate legal counsel in its review and
negotiation of this Agreement. For reasons of administrative convenience only,
the Investors acknowledge and agree that they and their respective counsel have
chosen to communicate with Company and Company's counsel through Xxxxxxx
XxXxxxxxx LLP ("Xxxxxxx"), but neither Xxxxxxx nor Company's counsel represent
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any of the Investors with respect to this Agreement and the transactions
contemplated hereby, except that Xxxxxxx represents Sherbrooke Partners, LLC and
Xxxx Capital, LLC.
5.11 CONSTRUCTION.
(a) For purposes of this Agreement, whenever the context
requires: the singular number shall include the plural and vice versa; the
masculine gender shall include the feminine and neuter genders; the feminine
gender shall include the masculine and neuter genders; and the neuter gender
shall include the masculine and feminine genders.
5 INVESTOR RIGHTS AGREEMENT
(b) The parties hereto agree that any rule of construction to
the effect that ambiguities are to be resolved against the drafting party shall
not be applied in the construction or interpretation of this Agreement.
(c) As used in this Agreement, the words "include" and
"including," and variations thereof, shall not be deemed to be terms of
limitation, but rather shall be deemed to be followed by the words "without
limitation."
5.12 TERMINATION. This Agreement shall terminate and be of no
further force or effect on the date that the Investors collectively beneficially
own fewer than 1,000,000 shares of Common Stock (assuming full conversion and
exercise of all convertible or exercisable securities).
[Balance of page intentionally left blank. Signature page follows.]
6 INVESTOR RIGHTS AGREEMENT
The parties have executed this Investor Rights Agreement as of the date
first above written.
A-FEM MEDICAL CORPORATION XXXXX AND XXXXXXX XXXX JTWROS
By:
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Xxxxx Xxxx
Name:
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Xxxxxxx Xxxx
Its:
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SHERBROOKE PARTNERS, LLC XXXX CAPITAL, LLC
By: By:
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Xxxxxxx Xxxx, Managing Member Xxxx Xxxxxx, Managing Member
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XXXXXXX XXXX CUST FOR XXXXX XXXX XXXXXXX XXXX CUST FOR XXXXXX XXXX
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XXXX XXXXXX CUST FOR XXXXXXXXX XXXXXX XXXX XXXXXX CUST FOR XXXXXXXXX XXXXXX
------------------------------------- -------------------------------------
XXXXXXX XXXXXXX XXXX XXXXXXX
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XXXXXXXX XXXX XXXX XXXXXX
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XXXX XXXXXX FBO XXXXX XXXXXXX XXXX XXXXXX FBO XXX XXXXXXX
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XXXX XXXXXX FBO XXXXX XXXXX XXXX XXXXXX FBO XXXXX XXXXX
------------------------------------- -------------------------------------
XXXXX XXXXXXX XXXXX XXXX
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XXXXXXX XXXXXX XXXXX XXXXXX
CGA RESOURCES, LLC XXXXXX X. & XXXXXX X. XXXXXXXX JTWROS
By:
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Cass Xxxxxxx Xxxxxxx, Sole Member Xxxxxx X. Xxxxxxxx
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Xxxxxx X. Xxxxxxxx
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XXXXXXX XXXX
SIGNATURE PAGE TO THE INVESTOR RIGHTS AGREEMENT
EXHIBIT A SCHEDULE OF INVESTORS
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Investor Shares Warrants
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Xxxx Capital, LLC 1,750,000 642,006
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Sherbrooke Partners, LLC 1,750,000 462,006
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CGA Resources, LLC 700,000 100,000
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Xxxxxxx Xxxxxxx 375,000 0
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Xxxxxxx Xxxx cust for Xxxxxx Xxxx 300,000 0
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Xxxxxxx Xxxx cust for Xxxxx Xxxx 300,000 0
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Xxxxx and Xxxxxxx Xxxx JTWROS 275,000 0
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Xxxxxxxx Xxxx 250,000 0
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Xxxx Xxxxxx cust for Xxxxxxxxx Xxxxxx 250,000 0
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Xxxx Xxxxxx cust for Xxxxxxxxx Xxxxxx 250,000 0
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Xxxxxxx Xxxx 200,000 0
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Xxxxxx X. & Xxxxxx X. Xxxxxxxx JTWROS 200,000 0
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Xxxxx Xxxxxx 200,000 0
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Xxxxx Xxxxxxx 200,000 0
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Xxxx Xxxxxx 192,135 0
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Xxxx Xxxxxxx 100,000 0
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Xxxxx Xxxx 100,000 0
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Xxxx Xxxxxx FBO Xxxxx Xxxxxxx 25,000 0
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Xxxx Xxxxxx FBO Xxx Xxxxxxx 25,000 0
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Xxxx Xxxxxx FBO Xxxxx Xxxxx 25,000 0
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Xxxx Xxxxxx FBO Xxxxx Xxxxx 25,000 0
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7,492,135 1,204,012
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