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EXHIBIT 4.1
A-FEM MEDICAL CORPORATION
AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
This Amended and Restated Registration Rights Agreement is entered into
as of the 6th day of November, 1998, by and between A-Fem Medical Corporation, a
Nevada corporation ("A-Fem"), and Capital Consultants, Inc., an Oregon
corporation, as agent for certain investors it represents (in its capacity as
agent, Capital Consultants, Inc. is referred to herein as "CCI") and replaces
and supersedes those certain Registration Rights Agreements entered into by and
between A-Fem and CCI dated as of August 31, 1998, and October 8, 1998.
The parties agree as follows:
1. DEFINITIONS
1.1 The terms "Form X-0," "Xxxx X-0" and "Form S-3" mean such respective
forms under the Securities Act of 1933, as amended ("xxx 0000 Xxx"), as in
effect on the date hereof or any successor registration forms to Form X-0, Xxxx
X-0 and Form S-3, respectively, under the 1933 Act subsequently adopted by the
Securities and Exchange Commission or any other federal agency at the time
administering the 1933 Act (the "SEC").
1.2 The terms "register," "registered," and "registration" refer to a
registration effected by preparing and filing a registration statement or
similar document in compliance with the 1933 Act and the declaration or ordering
of effectiveness of such registration statement or document.
1.3 The term "Registrable Securities" means the shares of the common
stock of A-Fem (the "Common Stock") to be issued upon conversion of the shares
of convertible preferred stock (the "Preferred Stock") to be issued pursuant to
(i) the Preferred Stock and Warrant Purchase Agreement dated as of August 31,
1998, (ii) the Plan and Agreement for Recapitalization dated as of September 1,
1998, (iii) the Stock Purchase Warrant (No. 98P-1) to purchase 130,000 shares of
Preferred Stock, (iv) the Preferred Stock and Warrant Purchase Agreement dated
as of October 8, 1998, (v) the Stock Purchase Warrant (No. 98P-3) to purchase
127,280 shares of Preferred Stock, (vi) the Stock Purchase Warrant (No. 98P-4)
to purchase 72,720 shares of Preferred Stock, (vii) the Preferred Stock and
Warrant Purchase Agreement dated as of November 6, 1998"), (viii) the Stock
Purchase Warrant (No. 98P-5) to purchase 102,065 shares of Preferred Stock, (ix)
the
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Stock Purchase Warrant (No. 98P-6) to purchase 1,583 shares of Preferred
Stock, and (x) the Stock Purchase Warrant (No. 98P-7) to purchase 552 shares of
Preferred Stock, and any Common Stock issued as a dividend or other distribution
with respect to, or any other securities issued in exchange for, or in
replacement of, such shares of Common Stock. As to any particular Registrable
Securities, such securities will cease to be Registrable Securities when (i)
they have been effectively registered under the 1933 Act and disposed of in
accordance with the registration statement covering them, or (ii) they may be
sold by a Holder without effective volume limitations pursuant to Rule 144 (or
any similar provision that is in force) under the 0000 Xxx.
1.4 The term "Holder" means (i) CCI, provided that it holds any
Registrable Securities as agent for any investor it represents, (ii) each of the
investors for whom CCI holds the Registrable Securities and (iii) any assignee
in accordance with Section 9.
2. REGISTRATION RIGHTS
2.1 DEMAND REGISTRATION RIGHTS
(a) If the Company shall receive, at any time after the date
hereof, a written request from the Holders of at least 30% of the Registrable
Securities then outstanding (the "Initiating Holders") that the Company file a
registration statement under the Securities Act covering the registration of
such Initiating Holders' Registrable Securities, then the Company shall, within
five days after the receipt of such request, give written notice of such request
to all Holders and shall, subject to the limitations set forth below, use its
best efforts to file as soon as practicable, a registration statement under the
Securities Act of all Registrable Securities that the Holders request to be
registered in a written request to be given within five days of the mailing of
such notice by the Company, and shall use its best efforts to cause such
registration statement to be declared effective as soon as practicable.
(b) The Company is obligated to effect only two registrations
pursuant to this Section 2.1; provided, however, that if the Company is eligible
to register securities on Form S-3, then the Company is obligated to effect a
registration on such Form S-3 each time such registration is requested by the
Holders pursuant to this Section 2.1.
(c) Notwithstanding the foregoing, if the Company shall furnish
to the Holders requesting a registration pursuant to this Section 2.1 a
certificate signed by the President of the Company stating that, in the good
faith judgment of the Board of Directors of the Company, it would be seriously
detrimental to the Company and its shareholders for such registration statement
to be filed and it is therefore essential to defer the filing of such
registration statement, the Company shall have the right to defer such filing
for not more than 60 days after receipt of the request of the Initiating
Holders.
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(d) Subject to Section 2(c), if the Company fails to file a
registration statement within 20 business days after receipt of the request of
the Initiating Holders ("Deadline"), then the Company will grant to the Holders
requesting registration ten-year warrants, with an exercise price of $1.92 per
share, to purchase the number of shares of common stock of the Company
determined by the product of (1) number of days elapsed between the Deadline and
the date the registration statement is filed; and (2) 1% of the Registrable
Shares that the Holders requested to be registered. The warrants will contain
terms, conditions and adjustments similar to warrants previously issued to the
Holders, and the warrant will be issued within 30 days of the date the
registration statement is filed. No such warrant will be issued to any Holder
who fails to promptly supply information concerning such Holder to be included
in the Registration Statement.
2.2 INCIDENTAL REGISTRATION RIGHTS
(a) If at any time after the date hereof A-Fem proposes to
register any of its securities under the 1933 Act (except for registration of
shares solely in connection with an employee benefit plan or a merger or
consolidation) in any public offering, whether or not for sale for its own
account, it will at such time give prompt written notice to Holder of its
intention to do so and of Holder's rights under this Section 2.
(b) Upon the written request of Holder made within 30 days after
the receipt of any such notice (which request shall specify the number of
Registrable Securities intended to be disposed of by Holder), A-Fem will use its
best efforts to effect the registration under the 1933 Act and applicable state
securities laws of all Registrable Securities in connection therewith that A-Fem
has been so requested to register by Holder.
(c) If the managing underwriter for any underwritten offering in
a registration pursuant to this Section 2.2 shall inform in writing A-Fem and
Holder of its belief that the number of securities requested to be included in
such registration would materially and adversely affect its ability to effect
such offering, then A-Fem will include in such registration the number that
A-Fem is so advised can be sold in (or during the time of) such offering, first,
all securities proposed by A-Fem to be sold for its own account, and second,
such Registrable Securities and other securities of A-Fem requested to be
included in such registration by persons exercising their incidental
registration rights, pro rata on the basis of the number of shares of such
securities so proposed to be sold and so requested to be included.
3. OBLIGATIONS OF A-FEM
Whenever required under this Agreement to use its best efforts to effect
the registration of Registrable Securities, A-Fem shall, as expeditiously as
possible:
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3.1 Prepare and file with the SEC a registration statement with respect
to such Registrable Securities and use its best efforts to cause such
registration statement to become and remain effective for the period of the
distribution contemplated thereby determined as provided hereafter.
3.2 Prepare and file with the SEC such amendments and supplements to
such registration statement and the prospectus used in connection with such
registration statement as may be necessary to comply with the provisions of the
1933 Act with respect to the disposition of all securities covered by such
registration statement.
3.3 Furnish to Holder such reasonable number of copies of a prospectus,
including any preliminary prospectus, in conformity with the requirements of the
1933 Act, and any amendments or supplements thereto and such other documents as
Holder may reasonably request in order to facilitate the disposition of
Registrable Securities owned by Holder.
3.4 Use its best efforts to register and qualify the securities covered
by such registration statement under such other securities or Blue Sky laws of
all 50 states, provided that the Company shall not be required in connection
therewith or as a condition thereto to qualify to do business or to file a
general consent to service of process in any such states.
3.5 In the event of any underwritten public offering, enter into and
perform its obligations under an underwriting agreement, in usual and customary
form, with the managing underwriter of such offering. Holder shall also enter
into and perform its obligations under such an agreement, including furnishing
any opinion of counsel or entering into a lock-up agreement reasonably requested
by the managing underwriter and take such other actions as are reasonably
required in order to expedite or facilitate the disposition of the Registrable
Securities to be so included in the registration statement.
3.6 Notify Holder, at any time when a prospectus relating thereto
covered by such registration statement is required to be delivered under the
1933 Act, of the happening of any event as a result of which the prospectus
included in such registration statement, as then in effect, includes an untrue
statement of a material fact or omits to state a 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 promptly file such amendments and
supplements that may be required on account of such event and use its best
efforts to cause each such amendment and supplement to become effective.
3.7 Furnish, at the request of any Holder requesting registration of
Registrable Securities pursuant to Section 2, on the date that such Registrable
Securities are delivered to the underwriters for sale in connection with a
registration pursuant to Section 2, if such securities are being sold
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through underwriters, or, if such securities are not being sold through
underwriters, on the date that the registration statement with respect to such
securities becomes effective, (i) an opinion, dated such date, of the counsel
representing the Company for the purposes of such registration, in form and
substance as is customarily given to underwriters in an underwritten public
offering, addressed to the underwriters, if any, and to the Holders requesting
registration of Registrable Securities and (ii) a letter dated such date, from
the independent certified public accountants of the Company, in form and
substance as is customarily given by independent certified public accountants to
underwriters in an underwritten public offering, addressed to the underwriters,
if any, and to the Holders requesting registration of Registrable Securities.
3.8 Otherwise use its best efforts to comply with all applicable rules
and regulations of the SEC, and make available to its security holders, as soon
as reasonably practicable, but not later than 18 months after the effective date
of the registration statement, an earnings statement covering the period of at
least 12 months beginning with the first full month after the effective date of
such registration statement, which earnings statement shall satisfy the
provisions of Section 11(a) of the Securities Act.
3.9 Use its best efforts to list the Restricted Securities covered by
such registration statement with any securities exchange on which the Common
Stock of the Company is then listed.
For purposes of Sections 3.1 and 3.2, the period of distribution of
Registrable Securities in a firm commitment underwritten public offering shall
be deemed to extend until each underwriter has completed the distribution of all
securities purchased by it, and the period of distribution of Registrable
Securities in any other registration shall be deemed to extend until the earlier
of the sale of all Registrable Securities covered thereby and one year after the
effective date thereof.
4. PREPARATION; INFORMATION; REASONABLE INVESTIGATION
4.1 FURNISH INFORMATION
It shall be a condition precedent to the obligations of A-Fem to take
any action pursuant to this Agreement that Holder shall furnish to A-Fem such
information regarding Holder, the Registrable Securities held by Holder, and the
intended method of disposition of such securities as shall be required to effect
the registration of Holder's Registrable Securities.
4.2 PREPARATION; REASONABLE INVESTIGATION
In connection with the preparation and filing of any registration
statement under the 1933 Act pursuant to this Agreement, A-Fem will give Holder
and Holder's counsel, accountants or underwriters the opportunity to participate
in the preparation of such
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registration statement, each prospectus included therein or filed with the SEC,
and each amendment thereof or supplement thereto, and will give Holder such
access to its books and records and such opportunities to discuss the business
of A-Fem with its officers and the independent public accountants who have
certified its financial statements as shall be necessary, in the opinion of
Holder's counsel, accountants or underwriters, to conduct a reasonable
investigation within the meaning of the 1933 Act.
5. EXPENSES OF REGISTRATION
All expenses (other than underwriting discounts and commissions and
transfer taxes, if any) relating to Registrable Securities incurred in
connection with the registrations, filings or qualifications pursuant to this
Agreement, including without limitation all registration, filing and
qualification fees, printing and accounting fees, fees and disbursements of
counsel for A-Fem, and fees and disbursements of counsel to Holder, shall be
borne by A-Fem.
6. INDEMNIFICATION
If any Registrable Securities are included in a registration statement
under this Agreement:
6.1 A-FEM INDEMNIFICATION
To the extent permitted by law, A-Fem will indemnify and hold harmless
and defend Holder, the officers, directors, partners, agents and employees of
Holder or any underwriter (as defined in the 1933 Act), and each person, if any,
who controls Holder or underwriter within the meaning of the 1933 Act or the
Securities Exchange Act of 1934, as amended (the "1934 Act"), against any
losses, claims, damages or liabilities (joint or several) to which they may
become subject under the 1933 Act, the 1934 Act or other federal or state law,
insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon any of the following statements,
omissions or violations (a "Violation"):
(i) any untrue statement or alleged untrue statement of a
material fact contained in such registration statement, including any
preliminary prospectus or final prospectus contained therein or any amendments
or supplements thereto,
(ii) the omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements therein
not misleading, or
(iii) any violation or alleged violation by A-Fem of the 1933
Act, the 1934 Act, any state securities law or any rule or regulation
promulgated under the 1933 Act, the 1934 Act or any state securities law.
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A-Fem will pay or reimburse such Holder, officer, director, partner,
agent, employee, underwriter, or controlling person for any legal or other
expenses reasonably incurred by them in connection with investigating or
defending any such loss, claim, damage, liability or action. The indemnity
agreement contained in this Section 6.1 shall not apply to amounts paid in
settlement of any loss, claim, damage, liability or action if such settlement is
effected without the consent of A-Fem (which consent shall not be unreasonably
withheld), nor shall A-Fem be liable to Holder in any such case for any such
loss, claim, damage, liability or action (a) to the extent that it arises solely
from or is based solely upon a Violation that occurs in reliance upon and in
conformity with written information furnished expressly for use in connection
with such registration by or on behalf of Holder or its controlling person, or
(b) if such untrue statement or alleged untrue statement or omission or alleged
omission was contained in a preliminary prospectus and corrected in a final or
amended prospectus, and Holder failed to deliver a copy of the final or amended
prospectus at or prior to the confirmation of the sale of the Registrable
Securities to the person asserting any such loss, claim, damage or liability in
any case where such delivery is required by the 1933 Act.
6.2 HOLDER INDEMNIFICATION
To the extent permitted by law, Holder will indemnify and hold harmless
A-Fem, each of its directors, each of its officers who have signed the
registration statement, and each person, if any, who controls A-Fem within the
meaning of the 1933 Act, against any losses, claims, damages or liabilities
(joint or several) to which A-Fem or any such director, officer or controlling
person, under the 1933 Act, the 1934 Act or other federal or state law, insofar
as such losses, claims, damages or liabilities (or actions in respect thereto)
arise out of or are based upon any Violation, in each case to the extent (and
only to the extent) that such Violation occurs in reliance upon and in
conformity with written information furnished by or on behalf of Holder
expressly for use in connection with such registration; and Holder will
reimburse any legal or other expenses reasonably incurred by A-Fem or any such
director, officer or controlling person, in connection with investigating or
defending any such loss, claim, damage, liability or action; provided, however,
that the indemnity agreement contained in this Section 6.2 shall not apply to
amounts paid in settlement of any such loss, claim, damage, liability or action
if such settlement is effected without the consent of Holder, which consent
shall not be unreasonably withheld, nor, in the case of a sale directly by A-Fem
of its securities (including a sale of such securities through any underwriter
retained by A-Fem to engage in a distribution solely on behalf of A-Fem), shall
Holder be liable to A-Fem in any case in which such untrue statement or omission
or alleged untrue statement or alleged omission was contained in a preliminary
prospectus and corrected in a final or amended prospectus, and A-Fem failed to
deliver a copy of the final or amended prospectus at or prior to the
confirmation of the sale of the securities to the person asserting any such
loss, claim, damage or liability in any case where such delivery is required by
the 1933 Act; and provided, further, that the
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indemnification obligation of Holder shall be limited to the aggregate public
offering price of the Registrable Securities sold by Holder pursuant to such
registration.
6.3 NOTICE, DEFENSE AND COUNSEL
Promptly after receipt by an indemnified party under this Section 6 of
notice of the commencement of any action (including any governmental action),
such indemnified party will, if a claim in respect thereof is to be made against
any indemnifying party under this Section 6, deliver to the indemnifying party a
written notice of the commencement thereof and the indemnifying party shall have
the right to participate in, and, to the extent the indemnifying party so
desires, jointly with any other indemnifying party similarly noticed, to assume
and control the defense thereof with counsel mutually satisfactory to the
parties; provided, however, that an indemnified party shall have the right to
retain its own counsel, with the fees and expenses to be paid by the
indemnifying party, if representation of such indemnified party by the counsel
retained by the indemnifying party would be inappropriate due to actual or
potential differing interests between such indemnified party and any other party
represented by such counsel in such proceeding. The failure to deliver written
notice to the indemnifying party within a reasonable time of the commencement of
any such action, if materially and adversely prejudicial to its ability to
defend such action, shall relieve such indemnifying party of any liability to
the indemnified party under this Section 6 to the extent of such prejudice, but
the omission so to deliver written notice to the indemnifying party will not
relieve it of any liability that it may have to any indemnified party otherwise
than under this Section 6.
6.4 CONTRIBUTION
If the indemnification provided for in this Section 6 is held by a court
of competent jurisdiction to be unavailable to an indemnified party with respect
to any losses, claims, damages or liabilities referred to herein, the
indemnifying party, in lieu of indemnifying such indemnified party thereunder,
shall, to the extent permitted by applicable law, contribute to the amount paid
or payable by such indemnified party as a result of such loss, claim, damage or
liability in such proportion as is appropriate to reflect the relative fault of
the indemnifying party, on the one hand, and of the indemnified party, on the
other, in connection with the Violation(s) that resulted in such loss, claim,
damage or liability, as well as any other relevant equitable considerations. The
relative fault of the indemnifying party and of the indemnified party shall be
determined by a court of law by reference to, among other things, whether the
untrue or allegedly untrue statement of a material fact or the omission to state
a material fact relates to information supplied by the indemnifying party or by
the indemnified party and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
6.5 SURVIVAL OF RIGHTS AND OBLIGATIONS
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The obligations of A-Fem and Holder under this Section 6 shall survive
the completion of any offering of Registrable Securities in a registration
statement whether under this Agreement or otherwise.
7. REPORTS UNDER THE 1934 ACT
With a view to making available to Holder benefits of Rule 144
promulgated under the 1933 Act and any other rule or regulation of the SEC that
may at any time permit Holder to sell securities of A-Fem to the public without
registration, A-Fem agrees to use its best efforts to:
(a) make and keep public information available, as those terms are
understood and defined in Rule 144, at all times;
(b) file with the SEC in a timely manner all reports and other documents
required of A-Fem under the 1933 Act and the 1934 Act; and
(c) furnish to Holder, so long as Holder owns any Registrable
Securities, forthwith upon request (i) a written statement by A-Fem that it has
complied with the reporting requirements of Rule 144, the 1933 Act and the 1934
Act (at any and all times after it has become subject to such reporting
requirements), or that it qualifies as a registrant whose securities may be
resold pursuant to Form S-2 or S-3 (at any time after it so qualifies), (ii) a
copy of the most recent annual or quarterly report of A-Fem and such other
reports and documents so filed by A-Fem, and (iii) such other information as may
be reasonably requested in availing Holder of any rule or regulation of the SEC
that permits the selling of any such securities without registration or pursuant
to such form.
8. LOCK-UP AGREEMENT
Holder, if requested by A-Fem and an underwriter of A-Fem's securities
(in a firmly underwritten public offering), shall agree not to sell or otherwise
transfer or dispose of any Registrable Securities or other securities of A-Fem
held by Holder for a specified period of time (not to exceed 90 days) following
the effective date of a registration statement pursuant to which A-Fem proposes
to sell its securities to the public generally, provided, however, that holders
of at least five percent of A-Fem's Common Stock and all officers and directors
of A-Fem enter into similar agreements.
9. ASSIGNMENT OF REGISTRATION RIGHTS
The right to cause A-Fem to register Common Stock pursuant to this
Agreement may not be assigned or transferred without the prior written consent
of A-Fem, which consent will not be unreasonably withheld.
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10. AMENDMENT
Any provision of this Agreement may be amended and the observance
thereof may be waived (either generally or in a particular instance and either
retroactively or prospectively), only with the written consent of A-Fem and the
Holders of a majority of the Registrable Securities. Any amendment or waiver
effected in accordance with this Section shall be binding upon each Holder and
A-Fem.
11. TERMINATION OF REGISTRATION RIGHTS
No Holder shall be entitled to exercise any right provided for in this
Agreement after five (5) years following the date hereof.
12. ATTORNEYS' FEES
In the event any legal action is brought by any party to enforce the
terms of this Agreement, the prevailing party shall be entitled to recover
reasonable attorneys' fees and expenses in addition to any other relief deemed
appropriate by the trial court or any appellate court or any bankruptcy court.
13. SUCCESSORS
Subject to Section 9 hereof, this Agreement shall bind and inure to the
benefit of the successors and assigns of A-Fem and the Holders.
14. ENTIRE AGREEMENT
This Agreement constitutes the entire agreement among the parties with
respect to the subject matter hereof and supersedes all prior arrangements or
understandings.
15. NOTICES
All notices, requests, consents and other communications required or
provided for herein to any party shall be deemed to be sufficient if contained
in a written instrument, and shall be deemed to be given when: (a) delivered in
person; (b) sent by first-class registered or certified mail with postage
prepaid; (c) delivered by overnight receipted courier service; or (d) sent by
facsimile transmission with delivery confirmed and followed by delivery pursuant
to (b) hereof, which notice is addressed to the party at the address set forth
below, or such other address as may hereafter be designated in writing by the
party.
If to A-Fem: 00000 X.X. Xxxxxx Xxxxxx, Xxxxx X-0
Xxxxxxxx, XX 00000
Attention: J. Xxxxx Xxxxx, President, Chief Operating
Officer and Chief Financial Officer
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Telephone: (000) 000-0000
Facsimile: (000) 000-0000
with a copy to: Xxxxxxx X. Xxxxxxx
Xxxxxxx Coie
0000 XX Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxx, XX 00000-0000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
If to the Holder: Capital Consultants, Inc.
0000 XX Xxxxx Xxxxxx, Xxxxx 000
Xxxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
with a copy to: Xxxxxx X. Xxxxxxxxxx
Xxxxxxx, Xxxxxxxxxx & Xxxxx
0000 XX Xxxxx Xxxxxx, Xxxxx 0000-0000
Xxxxxxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
16. EVENT OF DEFAULT
An Event of Default shall have occurred under this Agreement if A-Fem
shall fail to perform any obligation under this Agreement within thirty (30)
days after notice from any Holder specifying the nature of the failure of
default.
17. COUNTERPARTS
This Agreement may be executed in any number of counterparts, and each
such counterpart shall be deemed to be an original instrument. All such
counterparts together shall constitute one agreement.
18. HEADINGS
The headings of the various sections of this Agreement have been
inserted for convenience of reference only and shall not be deemed to be a part
of this Agreement.
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19. GOVERNING LAW
This Agreement shall be governed by and construed in accordance with the
laws of the State of Oregon.
[this space intentionally left blank]
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IN WITNESS WHEREOF, the parties hereto have executed or caused their
duly authorized representative to execute this Agreement as of the date first
hereinabove written.
Holder by:
CAPITAL CONSULTANTS, INC., as agent
By: /s/ Xxxxxxx X. Xxxxxxx
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Its Vice President
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A-FEM:
A-FEM MEDICAL CORPORATION
By: /s/ Xxxxxx Xxxxxxx
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Its
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