EXHIBIT 10.6
AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT, dated as of February
17, 2006 (this "Agreement"), by and among FluoroPharma, Inc., a Delaware
corporation (the "Company"), QuantRx Biomedical Company, a Nevada corporation
("QuantRx") and the holders of Common Stock of the Company, par value $.001 (the
"Common Stock"), listed on the Schedule of Investors attached hereto as Schedule
1, as amended from time to time in accordance with the provisions hereof (each,
individually, an "Investor" and, collectively, the "Investors"). QuantRx and the
Investors shall be referred to herein collectively as the "Stockholders".
Capitalized terms appearing herein but not defined herein have the meanings
ascribed to such terms in the Investment Agreement (defined below).
PRELIMINARY STATEMENT
Pursuant to a Stock Purchase Agreement, dated as of October 1, 2004
(the "Purchase Agreement"), by and among the Company and the investors in the
Company listed on the Schedule of Investors attached thereto (the "Original
Investors"), the Company issued to the Original Investors shares of Preferred
Stock of the Company, par value $.001 (the "Preferred Stock"), and warrants (the
"Warrants") to purchase shares of Common Stock. In connection with and as a
condition to the Original Investors' purchase of the Preferred Stock and the
Warrants from the Company, the Original Investors requested that the Company
make certain covenants to them and that the Company enter into an Investors'
Rights Agreement. The Original Investors and the Company entered into the
Investors' Rights Agreement on October 1, 2004 (the "Original Agreement").
Pursuant to a Mutual Release Agreement, dated as of July __, 2005 (the
"Release Agreement"), by and between the Company and Boston Life Sciences, Inc.
("BLSI"), the Company issued to BLSI 25,000 shares of Preferred Stock. In
connection with and as a condition to BLSI's purchase of the Preferred Stock and
execution of the Release Agreement, BLSI requested that the Company make certain
covenants to them and the Company enter into an Investors' Rights Agreement.
BLSI and the Company entered into the Investors' Rights Agreement as of July __,
2005 (the "BLSI Agreement").
Pursuant to an Investment Agreement, dated as of February 17, 2006
(the "Investment Agreement"), between QuantRx and the Company, the Company (i)
issued and sold to QuantRx 1,050,000 shares of Common Stock (the "Shares") and
an option to purchase 230,000 shares of Common Stock (the "Option") and (ii)
granted to QuantRx the right, to acquire a majority of the issued and
outstanding shares of Common Stock through a series of staged investments as
described in the Investment Agreement. In connection with and as a condition to
QuantRx's purchase of the Shares and the Option from the Company, QuantRx
requested that the Company, BLSI and the Original Investors make certain
covenants to them and that the Company, BLSI and the Original Investors amend
and restate the Original Agreement and the BLSI Agreement. In addition, in
accordance with and as required by the Investment Agreement, all issued and
outstanding shares of Preferred Stock have been converted into shares of Common
Stock and, as of the date hereof, there are no shares of Preferred Stock
outstanding.
TERMS AND CONDITIONS
NOW, THEREFORE, in consideration of the promises and the mutual
agreements and covenants contained in this Agreement, and intending to be
legally bound, the parties hereto agree as follows:
ARTICLE I
COVENANTS OF THE COMPANY
Section 1.1 Financial Statements, Reports, etc. So long as an
Investor or QuantRx (or any Transferee permitted under this Agreement) owns at
least 200,000 shares of Common Stock, the Company shall furnish to such Investor
and QuantRx:
(a) Within 30 days after the end of each calendar month, an
unaudited financial report of the Company, which report shall be prepared
substantially in accordance with GAAP consistently applied (except that the
financial report may (i) be subject to normal year-end audit adjustments neither
individually nor in the aggregate material and (ii) omit the notes thereto that
may be required for the report to comply with GAAP) and shall be certified by
either the chief executive officer or the chief financial officer of the Company
to have been so prepared, and which shall include the following:
(i) an income statement for such month, together with a
cumulative income statement from the first day of the then-current
fiscal year to the last day of such month;
(ii) a balance sheet as of the last day of such month;
(iii) a statement of cash flows for such month; and
(iv) a comparison between the actual figures for such
month and the comparable figures included in the Budget referred to in
Section 1.2 for such month.
(b) Within 60 days after the end of each fiscal quarter (90
days of the fiscal year end), an unaudited financial report of the Company,
which report shall be prepared in accordance with GAAP consistently applied
(except that the financial report may (i) be subject to normal year-end audit
adjustments neither individually nor in the aggregate material and (ii) omit the
notes thereto that may be required for the report to comply with GAAP) and shall
be certified by either the chief executive officer or the chief financial
officer of the Company to have been so prepared, and which shall include the
following:
(i) an income statement for such quarter, together with
a cumulative income statement from the first day of the then-current
fiscal year to the last day of such quarter:
(ii) a balance sheet as of the last day of such quarter;
2
(iii) a statement of cash flows for such quarter; and
(iv) a comparison between the actual figures for such
quarter and the comparable figures included in the Budget referred to
in Section 1.2 for such quarter.
(c) If for any period the Company shall have any subsidiary
whose accounts are consolidated with those of the Company, the financial
statements delivered pursuant to the foregoing Section 1.1(b) for such period
shall be the consolidated and consolidating financial statements of the Company
and all such consolidated subsidiaries.
(d) Promptly upon becoming available:
(i) copies of all financial statements, reports,
notices, press releases, proxy statements and other documents sent by
the Company to its stockholders or released to the public and copies
of all regular and periodic reports, if any, filed by the Company with
the SEC or any securities exchange;
(ii) copies of each Budget referred to in Section 1.2,
and all changes therein and deviations therefrom, approved by the
Board of Directors of the Company (the "Board"); and
(iii) any other financial or other information available
to management of the Company as any Investor holding the requisite
number of shares specified above or QuantRx shall have reasonably
requested.
Section 1.2 Budget and Operating Forecast. With respect to each
fiscal year after the fiscal year ending December 31, 2006, the Company shall
prepare and submit a proposed budget to the Board at least 30 days prior to the
beginning of each such fiscal year. The proposed budget shall be accepted as the
budget (the "Budget") for such fiscal year when it has been approved by the
Board. The Budget shall be reviewed by the Company periodically and all material
changes therein and all material deviations therefrom which are proposed to be
made by the Company shall be resubmitted to the Board and shall be accepted when
approved by, and the Company shall not make any such material changes to or
material deviations from the Budget without such approval of, the Board. The
Budget shall include an income statement, balance sheet and cash flow
information.
Section 1.3 Restrictive Agreements Prohibited. Neither the Company
nor any of its subsidiaries shall become a party to any agreement that by its
terms or performance restricts the Company's performance of this Agreement.
Section 1.4 Compliance with Laws. The Company shall comply in all
material respects with all applicable laws, rules, regulations and orders.
Section 1.5 Certificate of Incorporation; Bylaws. The Company shall
at all times maintain provisions in its Bylaws or Certificate of Incorporation
indemnifying all directors against liability and absolving all directors from
liability to the Company and its stockholders to
3
the maximum extent permitted under the laws of the State of Delaware.
Section 1.6 Corporate Existence. The Company shall preserve, protect
and maintain, in all material respects, its corporate existence, rights,
franchises and privileges necessary or useful to the proper conduct of its
business, including all material licenses and other rights to use patents and
intellectual property rights necessary for the conduct of its business,
including, but not limited to, the intellectual property set forth on Schedule
1.6.
Section 1.7. Insurance. The Company, upon commencement of its
business operations and thereafter while such operations are being conducted,
shall obtain and maintain in full force and effect such policies of business and
property insurance, with insurers of recognized financial strength as reasonably
determined by the Company and with such types and amounts of coverages as shall
be reasonably appropriate in the judgment of the Company, to protect the
Company's assets and business against a material loss.
Section 1.8. Books and Records. The Company and QuantRx agree that at
and after the Closing, so long as QuantRx holds at least 15% of the issued and
outstanding shares of Common Stock on a Fully Diluted Basis, Xxxxxx Xxxxxxxxx or
his designee shall be responsible for the preparation, maintenance and control
of the books and records of the Company, including, but not limited to, the (i)
preparation of the information required to be prepared and delivered to the
Investors under Sections 1.1 and 1.2 and (ii) the ability of Mr. Witoshkin to
endorse checks on behalf of the Company. The Company agrees for this purpose to
appoint Mr. Witoshkin as Secretary of the Company and shall (and shall cause its
subsidiaries to): (i) transfer or cause the transfer of the existing book and
records of the Company and information and other documents related thereto, (ii)
provide Mr. Witoshkin access at reasonable times upon prior notice to the
officers, employees, agents, properties, offices and other facilities of such
party and its subsidiaries and to the books and records thereof and (iii)
furnish promptly to Mr. Witoshkin such information concerning the business,
properties, contracts, assets, liabilities, personnel and other aspects of such
party and its subsidiaries as Mr. Witoshkin may reasonably request.
ARTICLE II - RESTRICTIONS ON TRANSFER BY INVESTORS;
RIGHT OF REFUSAL
The following provisions of this Article II shall terminate
immediately upon, and shall not apply with respect to, the consummation of a
QPO.
Section 2.1 Restrictions on Transfer by Investors. Each Investor agrees
that such Investor will not, without the prior written consent of QuantRx for as
long as QuantRx owns, beneficially and of record, 15% of the issued and
outstanding Common Stock of the Company on a Fully Diluted Basis, Transfer all
or any portion of the Securities now owned or hereafter acquired by such
Investor, except in connection with, and strictly in compliance with, the
conditions of this Article II, and otherwise in compliance with the Securities
Act and other applicable securities or "blue sky" laws.
Section 2.2 Permitted Transfers by Investors. Notwithstanding
anything herein to the contrary, the provisions of Section 2.3 shall not apply
to a (i) Transfer as a bona fide gift to any
4
Person or Persons by an Investor of up to 25,000 shares of Common Stock held by
such Investor as of the date hereof; provided, however, that such Transfers
shall not exceed 50,000 shares of Common Stock in the aggregate, (ii) Transfers
to the spouse, parent, children or siblings of such Investor or to a trust or
family limited partnership for the benefit of any of them, (iii) Transfers for
estate planning purposes, including Transfers upon the death of any Investor to
such Investor's heirs, executors or administrators or to a trust under such
Investor's will, or Transfers between such Investor and such Investor's guardian
or conservator, (iv) a Transfer by Xxxx X. Xxxxxx M.D. to QuantRx of 100,000
shares of Common Stock, (v) a Transfer by Xx. Xxxxx X. Xxxxxxx to QuantRx of
100,000 shares of Common Stock,(vi) Transfers by Xx. Xxxxx X. Xxxxxxx of not
more than 54,000 shares of Common Stock to one or more holders or former holders
of the Series A Convertible Preferred Stock of the Company, (vii) a Transfer by
Xxxxx Xxxxxxx to QuantRx of 100,000 shares of Common Stock and (viii) Transfers
to an Affiliate of an Investor, provided that the Investor shall have given
prior written notice to QuantRx and the Transferee shall have entered into a
Joinder Agreement in substantially the form attached hereto as Exhibit A
providing that all Securities so Transferred shall continue to be subject to all
provisions of this Agreement as if such Securities were still held by an
Investor. Notwithstanding anything to the contrary in this Agreement (except
Section 2.5) or any failure by a Transferee under this Section 2.2 to execute a
Joinder Agreement, such Transferee shall take any Securities so Transferred
subject to all provisions of this Agreement as if such Securities were still
held by the Investor making such Transfer, whether or not they so agree in
writing.
Section 2.3 Right of Refusal for Investor Sales. In the event that
any of the Investors (i) entertains a bona fide offer to purchase all or any
portion of the Securities held by such Investor from any non-Affiliate (an
"Investor Buyer"), which offer must be accompanied by firm financing commitments
and not be subject to any material contingency, or (ii) otherwise proposes to
Transfer in the absence of an identified Investor Buyer all or any portion of
the Securities held by such Investor (in each case, an "Investor Offer"), such
Investor (a "Transferring Investor") may Transfer such Securities solely
pursuant to and in accordance with the following provisions of this Section 2.3:
(a) Offer Notice. The Transferring Investor shall cause the
Investor Offer and all of the terms thereof to be reduced to writing and shall
promptly notify the Company, each other Investor and QuantRx of such
Transferring Investor's desire to effect the Investor Offer and otherwise comply
with the provisions of this Section 2.3 (such notice, the "Investor Offer
Notice"). The Investor Offer Notice shall constitute an irrevocable offer to
sell all of the Securities which are the subject of the Investor Offer (the
"Investor Offered Securities") to the Company, each Investor and QuantRx on the
basis described below, at a purchase price equal to the price contained in, and
on the same terms and conditions of, the Investor Offer. The Investor Offer
Notice shall, if applicable, be accompanied by a true and complete copy of the
Investor Offer from an Investor Buyer, which shall identify the Investor Buyer
and all relevant information in connection therewith.
(b) QuantRx Option. QuantRx shall have the first option to
purchase all but not less than all of the Investor Offered Securities. At any
time within 10 days after receipt by QuantRx of the Investor Offer Notice (the
"Investor QuantRx Option Period"), QuantRx may elect to purchase all (but not
less than all) of the Investor Offered Securities and shall give
5
written notice of such election (the "Investor QuantRx Acceptance Notice") to
the Transferring Investor within the Investor QuantRx Option Period, which
notice shall indicate the number of Securities that QuantRx is willing to
purchase. The Investor QuantRx Acceptance Notice shall constitute a valid,
legally binding and enforceable agreement for the sale and purchase of the
Securities covered by the Investor QuantRx Acceptance Notice. If QuantRx accepts
the offer to purchase all of the Investor Offered Securities, the closing for
such purchase of the Investor Offered Securities by the Company under this
Section 2.3(b) shall take place within 30 days following the expiration of the
Investor QuantRx Option Period or on such other date as may be agreed to by the
Transferring Investor and QuantRx. If QuantRx fails to purchase all of the
Investor Offered Securities by failing to exercise its option within the
Investor QuantRx Option Period, the Transferring Investor shall so notify each
other Investor promptly (the "Additional Investor Offer Notice"), which
Additional Investor Offer Notice shall identify the Investor Offered Securities
that QuantRx has not elected to purchase (the "Remaining Investor Securities").
The Remaining Investor Securities shall be subject to the options granted to the
Investors pursuant to Section 2.3(c) below. In addition, if QuantRx elects to
purchase all Investor Offered Securities and fails to consummate such purchase
within the period provided, such Securities shall be subject to the options
granted the Investors pursuant to Section 2.3(c) below.
(c) Investors' and Option. If QuantRx fails to purchase all
of the Investor Offered Securities under Section 2.3(b) above, at any time
within 10 days after receipt by the other Investors of the Additional Investor
Offer Notice (the "Investor Option Period"), the other Investors may elect to
purchase all but not less than all (such amount being determined based upon the
aggregate number of shares elected to be purchased by such other Investors
pursuant to the operation of the provisions of this paragraph (c) in its
entirety) of the Remaining Investor Securities and shall give written notice of
such election (the "Investor Acceptance Notice") to the Transferring Investor
and other Investor within the Investor Option Period, which notice shall
indicate the maximum number of Securities that the Investor is willing to
purchase, including the number of Securities it would purchase if one or more
other Investors do not elect to purchase their Pro Rata Fraction. The Investor
Acceptance Notice shall constitute a valid, legally binding and enforceable
agreement for the sale and purchase of the Securities covered by the Investor
Acceptance Notice. The closing for any purchase of Securities by the Investors
under this Section 2.3(c) shall take place within 30 days following the
expiration of Investor Option Period or on such other date or at such other
place as may be agreed to by the Transferring Investor and such Investors. The
Transferring Investor shall notify each other Investor promptly if any Investor
fails to offer to purchase all of its Pro Rata Fraction. In addition, if any
Investor elects to purchase any Investor Offered Securities and fails to
consummate such purchase within the period provided ("Investor Default
Securities"), each other Investor shall have the right to purchase its Pro Rata
Fraction of such Investor Offered Securities, and if such other Investors fail
to consummate such purchase of all such Investor Default Securities, each
Investor who purchased any such Investor Default Securities shall have the right
to purchase its Pro Rata Fraction (or such greater number as each such Investor
is willing to purchase if such other participating Investors do not elect, or
fail, to purchase their full Pro Rata Fraction) of such remaining Investor
Default Securities until all such Investor Default Securities have been
purchased.
6
(d) Allocation of Securities among Investors. Upon the
expiration of the Investor Option Period, the number of Securities to be
purchased by each Investor shall be determined as follows: (i) first, there
shall be allocated to each Investor electing to purchase, a number of Securities
equal to the lesser of (A) the number of Securities that such Investor accepted
to purchase as set forth in its respective Investor Acceptance Notice or (B)
such Investors' Pro Rata Fraction, and (ii) second, the excess, if any, not
allocated under clause (i) above, shall be allocated to those Investors who
within the Investor Option Period delivered an Investor Acceptance Notice that
set forth a number of Securities that exceeded their respective Pro Rata
Fraction, in each case on a Pro Rata Fraction basis up to the amount of such
excess.
(e) Valuation of Property. In the event that the price set
forth in the Investor Offer Notice is stated in consideration other than cash or
cash equivalents, the Transferring Investor and, as applicable, QuantRx or a
majority in interest of the participating other Investors shall mutually
determine the fair market value of such consideration, reasonably and in good
faith, and QuantRx and the Investors, as the case may be, may effect their
purchase under this Section 2.3 by payment of such fair market value in cash or
cash equivalents.
(f) Sale to Third Party. In the event that QuantRx and the
other Investors do not elect to exercise the rights to purchase under this
Section 2.3 with respect to all of the Securities proposed to be sold, or fail
to consummate such purchase, the Transferring Investor may sell all of such
Securities to the Investor Buyer, or other Person, as applicable, on the terms
and conditions set forth in the Investor Offer Notice. Promptly after such
Transfer, the Transferring Investor shall notify the Company, which in turn
shall promptly notify each other Investor, of the consummation thereof and shall
furnish reasonably detailed evidence of the completion and time of completion of
the Transfer and of the terms thereof. Prior to the effectiveness of any
Transfer hereunder, the Transferee shall have entered into a Joinder Agreement
in substantially the form attached hereto as Exhibit A, and such Transferee
shall have all the rights and obligations hereunder as if such Transferee were
an Investor. If the Transferring Investor's sale to a Transferee is not
consummated in accordance with the terms of the Investor Transaction Offer on or
before 30 days after the latest of: (i) the expiration of the Investor QuantRx
Option Period, (ii) the expiration of the Investor Option Period and (iii) the
satisfaction of all applicable governmental approval or filing requirements, the
Investor Transaction Offer shall be deemed to lapse, and any Transfer of
Securities pursuant to such Investor Offer shall be in violation of the
provisions of this Agreement unless the Transferring Investor sends a new
Investor Offer Notice and once again complies with the provisions of this
Section 2.3 with respect to such Investor Offer.
Section 2.4 Contemporaneous Transfers. If two or more Investors
propose concurrent Transfers that are subject to this Article II, then the
relevant provisions of Section 2.3 shall apply separately to each such proposed
Transfer.
Section 2.5 Effect of Prohibited Transfers. If any Transfer by an
Investor is made or attempted contrary to the provisions of this Agreement, such
purported Transfer shall be void ab initio; the Company and the other parties
hereto shall have, in addition to any other legal or equitable remedies which
they may have, the right to enforce the provisions of this Agreement
7
by actions for specific performance (to the extent permitted by law); and the
Company shall have the right to refuse to recognize any Transferee as one of its
stockholders for any purpose.
ARTICLE III - RIGHTS TO PURCHASE
The following provisions of this Article III shall terminate
immediately upon, and shall not apply with respect to, the consummation of a
QPO. For the purposes of this Article III, the terms "Investor" and "Investors"
shall include QuantRx.
Section 3.1 Right to Participate in Certain Sales of Additional
Securities. The Company agrees that it will not sell or issue any New
Securities, unless the Company first submits a written notice to each Investor
identifying the terms of the proposed sale (including price, number or aggregate
principal amount of New Securities and all other material terms), and offers to
each Investor the opportunity to purchase its Pro Rata Allotment (as hereinafter
defined) of the securities (subject to increase for over allotment if some
Investors do not fully exercise their rights) on terms and conditions, including
price, not less favorable than those on which the Company proposes to sell such
securities to a third party or parties. The Company's offer pursuant to this
Section 3.1 shall remain open and irrevocable for a period of 20 days following
receipt by the Investors of such written notice.
Section 3.2 Investor Acceptance. Each Investor may elect to purchase
the securities so offered by giving written notice thereof to the Company within
such 20 day period, including in such written notice the maximum number of
shares of capital stock or other securities of the Company that the Investor
wishes to purchase, including the number of such shares it would purchase if one
or more other Investors do not elect to purchase their respective Pro Rata
Allotments. The closing of the purchase of such securities shall be not more
than 30 days after the date on which the last Investor gives such notice.
Section 3.3 Calculation of Pro Rata Allotment. Each Investor's "Pro
Rata Allotment" of such securities shall be determined by dividing (i) the
number of shares of Common Stock (on a Fully Diluted Basis) owned by such
Investor by (ii) the aggregate number of shares of Common Stock issued and
outstanding at the date of determination on a Fully Diluted Basis, as of the
date of such written offer. If one or more Investors do not elect to purchase
their respective Pro Rata Allotment, each of the electing Investors may purchase
such securities on a pro rata basis, based upon the relative holdings of
securities of each of the electing Investors in the case of over subscription.
Section 3.4 Sale to Third Party. Any securities so offered that are
not purchased by the Investors pursuant to the offer set forth in Section 3.1
above, may be sold by the Company, but only on terms and conditions not more
favorable than those set forth in the notice to Investors, at any time within 20
days following the termination of the above referenced 20 day period, but may
not be sold to any other Person or on terms and conditions, including price,
that are more favorable to the purchaser than those set forth in such offer or
after such 20 day period without renewed compliance with this Article III.
8
ARTICLE IV - CORPORATE ACTIONS
The following provisions of this Article IV shall terminate
immediately upon the earlier of, and shall not apply with respect to, the
consummation of a QPO.
Section 4.1 Board Composition and Election of Directors. The
Company agrees to take such actions as are necessary or appropriate, and each
Stockholder agrees to vote all of the voting securities now owned or hereafter
acquired by such Stockholder and to take such other actions as are necessary or
appropriate, so as to fix the number of directors at three and to elect or cause
the election of Xx. Xxxxxxx, Xxxxxx Xxxxxxxxx and a director candidate mutually
agreed to by QuantRx and the Company, as directors. If QuantRx' aggregate
investment under the Investment Agreement equals or exceeds $5,250,000, the
Company agrees to take such actions as are necessary or appropriate, and each
Stockholder agrees to vote all of the Voting Securities now owned or hereafter
acquired by such Stockholder and to take such other actions as are necessary or
appropriate, so as to fix the number of directors at no less than five and to
elect or cause the election as directors of (i) Xx. Xxxxxxx, (ii) Xxxxxx
Xxxxxxxxx, (iii) a director candidate mutually agreed to by QuantRx and the
Company, (iv) one director candidate nominated by QuantRx, which director
candidate shall be approved by the Company, such approval not to be unreasonably
withheld, and (v) one director candidate nominated by the Company, which
director candidate shall be approved by QuantRx, such approval not to be
unreasonably withheld. Each Stockholder hereby agrees (i) for purposes of
establishing a quorum, to be present in person or by proxy at any meeting of
Stockholders to elect directors and (ii) to vote all of such Stockholder's
shares of Common Stock for, or give such Stockholder's written consent to, the
election to the Board of each of the candidates determined pursuant to this
Section 4.1 subject to and in accordance with the terms of this Agreement. The
rights of QuantRx under this Section 4.1 are subject to the provisions of
Section 2.02 of the Investment Agreement.
Section 4.2. Removal. Mr. Witoshkin and any other director designated
by the Investor to serve on the Board shall only be removed from the Board at
the request of QuantRx.
Section 4.3 Vacancies. In the event any director dies, resigns, is
removed or otherwise ceases to serve as a member of the Board, the Company shall
give notice thereof to the Stockholders. If the vacancy is created by a director
designated by QuantRx, then QuantRx shall promptly designate a successor, which
successor shall be approved by the Company, such approval not to be unreasonably
withheld and notify the Board of its selection. If the vacancy is created by Xx.
Xxxxxxx or another director designated by the Company, then the Company shall
promptly designate a successor, which successor shall be approved by QuantRx,
such approval not to be unreasonably withheld, and notify the Board of the
selection.
Section 4.4 Expenses and Remuneration. The Company shall reimburse
directors for their reasonable travel expenses, including the cost of airfare
and any necessary meals and lodging, incurred in connection with attending Board
meetings.
Section 4.5 QuantRx Approval of Options. QuantRx shall vote its
shares in favor of the amendment or creation of any incentive stock plan to
provide for the issuance of the Options as such term is defined in the
Investment Agreement.
9
Section 4.6 Section 218(c). The Stockholders and the Company intend
this Article IV to constitute an enforceable voting agreement under Section
218(c) of the Delaware General Corporation Law.
ARTICLE V
REGISTRATION RIGHTS
Section 5.1 Demand Registration. At any time after the earlier of
(i) February 17, 2009 or (ii) 180 days after the effective date of the first
registration statement for a public offering of securities of the Company (other
than a registration statement relating either to the sale of securities to
employees of the Company pursuant to a stock option, stock purchase or similar
plan of a SEC Rule 145 transaction), QuantRx, if QuantRx holds at least 15% of
the issued and outstanding shares of Common Stock on a Fully Diluted Basis, may
notify the Company in writing that QuantRx intends to offer or cause to be
offered for public sale all or any portion of its Registrable Securities in the
manner specified in such request. Upon receipt of such request, the Company
shall promptly deliver notice of such request to all other Stockholders who each
shall then have 20 days to notify the Company in writing of their desire to be
included in such registration. If the request for registration contemplates an
underwritten public offering, the Company shall state such in the written notice
and in such event the right of any such other Stockholder to participate in such
registration shall be conditioned upon such Stockholder's participation in such
underwritten public offering and the inclusion of such Stockholder's Registrable
Securities in the underwritten public offering to the extent provided herein.
The Company will use reasonable best efforts to expeditiously (but in any event
no later than 60 days after such request) file a registration statement for the
registration of all Registrable Securities whose Stockholders request
participation in such registration under the Securities Act, subject to the
other provisions of this Agreement, and to cause such registration statement to
be declared effective by the SEC as soon as practicable thereafter. If any
registration pursuant to this Section 5.1 shall be, in whole or in part, an
underwritten public offering of Common Stock, the number of Registrable
Securities to be included in such an underwriting may be reduced on a pari passu
basis, or eliminated entirely, if and to the extent that the managing
underwriter shall be of the opinion that such inclusion would adversely affect
the marketing of the securities to be sold by the Company therein.
Section 5.2 Piggyback Registration. If the Company at any time
proposes to register any of its securities under the Securities Act for sale to
the public, whether for its own account or for the account of other security
holders or both (except with respect to registration statements on Forms S-4 or
S-8 or another form not available for registering the Registrable Securities for
sale to the public), it will give written notice to all Stockholders of its
intention so to do. Upon the written request of any such Stockholder, received
by the Company within 30 days after the giving of any such notice by the
Company, to register any of such holder's Registrable Securities, the Company
will use reasonable best efforts to cause the Registrable Securities as to which
registration shall have been so requested to be included in the securities to be
covered by the registration statement proposed to be filed by the Company. If
any registration pursuant to this Section 5.2 shall be, in whole or in part, an
underwritten public offering of Common Stock, the number of Registrable
Securities to be included in such an underwriting may be reduced on a pari passu
basis, or eliminated entirely, if and to the extent that the managing
underwriter shall
10
be of the opinion that such inclusion would adversely affect the marketing of
the securities to be sold by the Company therein.
Section 5.3 Short-Form Registration on Form S-3. In addition to the
rights provided the Stockholders in Sections 5.1 and 5.2, if the Company is
already eligible to effect a registration of securities under the Securities Act
utilizing Form S-3 (or any similar form having similar requirements promulgated
by the SEC), then, upon the written request of QuantRx, the Company shall so
notify all Stockholders, and, as expeditiously thereafter as possible, shall use
reasonable best efforts to effect qualification and registration under the
Securities Act on Form S-3 of all or such portion of the Registrable Securities
as QuantRx shall specify. Notwithstanding the foregoing, the Company (i) shall
not be obligated to effect any such registration within six months after the
effective date of any other such registration, and (ii) shall have the right to
defer any such registration for not more than six months if the implementation
or effectuation of such registration would adversely affect the conduct of the
Company's business in the judgment of the Board.
Section 5.4 Registration Procedures. If and whenever the Company is
required by the provisions of this Article V to use reasonable best efforts to
effect the registration of any Registrable Securities under the Securities Act
the Company will, as expeditiously as possible:
(a) Prepare and file with the SEC a registration statement
with respect to such securities and use reasonable best efforts to cause such
registration statement to become and remain effective for the period of the
distribution contemplated thereby (determined as hereinafter provided).
(b) Prepare and file as expeditiously as reasonably
practicable and in any event within 30 days with the SEC such amendments and
supplements to such registration statement and the prospectus used in connection
therewith as may be necessary to keep such registration statement effective for
the period of the distribution specified in (i) above, and comply with the
provisions of the Securities Act with respect to the disposition of all
Registrable Securities covered by such registration statement in accordance with
the sellers' intended method of disposition set forth in such registration
statement for such period.
(c) Furnish to each seller of Registrable Securities and to
each underwriter such number of copies of the registration statement and the
prospectus included therein (including each preliminary prospectus) as such
persons reasonably may request in order to facilitate the public sale or other
disposition of the Registrable Securities covered by such registration
statement.
(d) Use reasonable best efforts to register or qualify the
Registrable Securities covered by such registration statement under the
securities or "blue sky" laws of such jurisdictions as the sellers of
Registrable Securities or, in the case of an underwritten public offering, the
managing underwriter reasonably shall request, except that the Company shall not
for any such purpose be required to qualify generally to transact business as a
foreign corporation in any jurisdiction where it is not so qualified or to
consent to general service of process in any such jurisdiction.
11
(e) Use reasonable best efforts to list the Registrable
Securities covered by such registration statement with any securities exchange
on which the Common Stock of the Company is then listed.
(f) Immediately notify each seller of Registrable Securities
and each underwriter under such 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 of which the Company has knowledge 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 a
material fact required to be stated therein or necessary to make the statements
therein not misleading in light of the circumstances then existing, whereupon
such sellers shall forthwith cease making offers and sales of Registrable
Securities pursuant to such registration statement or deliveries of the
prospectus contained therein for any purpose until the Company has prepared and
furnished such amendment or supplement to the prospectus as may be necessary so
that, as thereafter delivered to Investors of such Registrable Securities, such
prospectus shall not include an untrue statement of a material fact or omit 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.
(g) Notify each seller of Registrable Securities under such
registration statement of (i) the effectiveness of such registration statement,
(ii) the filing of any post-effective amendments to such registration statement,
or (iii) the filing of a supplement to such registration statement.
(h) Deliver to all security holders as soon as possible
after effectiveness of such registration statement an earnings statement
covering a period of at least 12 months beginning after the effective date of
the registration statement as referred to in Section 11(a) of the Securities
Act.
(i) If the offering is underwritten and a seller of
Registrable Securities shall so request, use reasonable best efforts to furnish,
on the date that Registrable Securities are delivered to the underwriters for
sale pursuant to such registration: (I) an opinion dated such date, of counsel
representing the Company for the purposes of such registration, addressed to the
underwriters and to such seller and in customary form; and (II) a letter dated
such date from the independent public accountants retained by the Company,
addressed to the underwriters and to such seller and covering such matters with
respect to such registration as such underwriters reasonably may request.
(j) Make available for inspection by each seller of
Registrable Securities, any underwriter participating in any distribution
pursuant to such registration statement, and any attorney, accountant or other
agent retained by such seller or underwriter, all financial and other records,
pertinent corporate documents and properties of the Company, and cause the
Company's officers, directors and employees to supply all information reasonably
requested by any such seller, underwriter, attorney, accountant or agent in
connection with such registration statement.
(k) Enter into such customary agreements (including an
underwriting
12
agreement in customary form) and take such other actions as sellers of
Registrable Securities shall reasonably request in order to expedite or
facilitate the disposition of such Registrable Securities.
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 (x) the sale of all Registrable Securities
covered thereby, and (y) 90 days after the effective date thereof, with
reasonable extensions to be granted for suspensions thereof. In connection with
each registration hereunder, the sellers of Registrable Securities shall (I)
provide such information and execute such documents as may reasonably be
required in connection with such registration, (II) agree to sell Registrable
Securities on the basis provided in any underwriting arrangements and (III)
complete and execute all questionnaires, powers of attorney, indemnities,
underwriting agreements and other documents required under the terms of such
underwriting arrangements. In connection with each registration hereunder
covering an underwritten public offering, the Company and each seller agree to
enter into a written agreement with the managing underwriter selected in the
manner herein provided in such form and containing such provisions as are
customary in the securities business for such an arrangement between such
underwriter and companies of the Company's size and investment stature.
Section 5.5 Expenses. (a) All expenses incurred by the Company in
complying with this Article V, including, without limitation, all registration
and filing fees, printing expenses, fees and disbursements of counsel and
independent public accountants for the Company (except as provided below), fees
and expenses incurred in connection with complying with state securities or
"blue sky" laws, fees of the National Association of Securities Dealers, Inc.,
transfer taxes, fees of transfer agents and registrars, costs of insurance and
fees and disbursements of one counsel for the sellers of Registrable Securities
(which counsel shall be selected by the holders of a majority of the outstanding
Registrable Securities), but excluding any Selling Expenses, are called
"Registration Expenses." All underwriting discounts and selling commissions
applicable to the sale of Registrable Securities and the fees and expenses of
any special or interim audit or review required in connection with any
registration made pursuant to this Article V are called "Selling Expenses."
(b) The Company will pay all Registration Expenses in
connection with each registration statement under this Article V. All Selling
Expenses in connection with each registration statement under this Article V
shall be borne by the participating sellers in proportion to the number of
shares sold by each, or by such participating sellers other than the Company
(except to the extent the Company shall be a seller) as they may agree.
Section 5.6 Indemnification and Contribution. In the event any
Registrable Securities are included in a registration statement under this
Agreement:
(a) To the extent permitted by law, the Company will
indemnify and hold harmless each Stockholder requesting or joining in a
registration, any underwriter (as defined in the Securities Act) for it, and
each person, if any, who controls such Stockholder or underwriter
13
within the meaning of the Securities Act, against any losses, claims, damages or
liabilities, joint or several, to which they may become subject under the
Securities Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based on any
untrue or alleged untrue statement of any material fact contained in such
registration statement, including, without limitation, any preliminary
prospectus or final prospectus contained therein or any amendments or
supplements thereto, or arise out of or are based upon 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 arise out of any
violation by the Company of any rule or regulation promulgated under the
Securities Act applicable to the Company and relating to action or inaction
required of the Company in connection with any such registration; and will
reimburse each such Stockholder, such 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,
provided, however, that the indemnity agreement contained in this Section 5.6(a)
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 the
Company (which consent shall not be unreasonably withheld or delayed), nor shall
the Company be liable in any such case with respect to any such Stockholder or
underwriter for any such loss, claim, damage, liability or action to the extent
that it arises out of or is based upon an untrue statement or alleged untrue
statement or omission or alleged omission made in connection with such
registration statement, preliminary prospectus, final prospectus, or amendments
or supplements thereto, in reliance upon and in conformity with written
information furnished expressly for use in connection with such registration by
such Stockholder, underwriter or controlling person.
(b) To the extent permitted by law, each Stockholder
requesting or joining in a registration will indemnify and hold harmless the
Company, each of its directors, each of its officers who has signed the
registration statement, each person, if any, who controls the Company within the
meaning of the Securities Act, and any underwriter for the Company (within the
meaning of the Securities Act) against any losses, claims, damages or
liabilities to which the Company or any such director, officer, controlling
person or underwriter may become subject, under the Securities Act or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in respect
thereto) arise out of or are based upon any untrue statement or alleged untrue
statement of any material fact contained in such registration statement,
including any preliminary prospectus or final prospectus contained therein or
any amendments or supplements thereto, or arise out of or are based upon 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, in
each case to the extent, but only to the extent, that such untrue statement or
alleged untrue statement or omission or alleged omission was made in such
registration statement, preliminary prospectus or final prospectus, or
amendments or supplements thereto, in reliance upon and in conformity with
written information furnished by such Stockholder expressly for use in
connection with such registration; and will reimburse the Company or any such
director, officer, controlling person or underwriter for any legal or other
expenses reasonably incurred by them in connection with investigating or
defending any such loss, claim, damage, liability or action; provided, however,
that the indemnity agreement contained in this Section 5.6(b) 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 such Stockholder (which
14
consent shall not be unreasonably withheld or delayed) and provided further that
no Stockholder shall have any liability under this Section 5.6(b) in excess of
the net proceeds actually received by such Stockholder in the relevant public
offering.
(c) Promptly after receipt by an indemnified party under
this Article V of notice of the commencement of any action, such indemnified
party will, if a claim in respect thereof is to be made against any indemnifying
party under this Article V, notify the indemnifying party in writing 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 the defense
thereof with counsel mutually satisfactory to the parties; provided, however,
that if the defendants in any such action include both the indemnified party and
the indemnifying party and the indemnified party shall have reasonably concluded
that there may be legal defenses available to it or other indemnified parties
which are different from or additional to those available to the indemnifying
party, the indemnified party or parties shall have the right to select separate
counsel to defend such action on behalf of such indemnified party or parties.
Upon receipt of notice from the indemnifying party to such indemnified party of
its election so to appoint counsel to defend such action and approval by the
indemnified party of such counsel, the indemnifying party will not be liable to
such indemnified party under this Article V or otherwise for any legal or other
expenses subsequently incurred by such indemnified party in connection with the
defense thereof unless (i) the indemnified party shall have employed separate
counsel in accordance with the proviso to the immediately preceding sentence (it
being understood, however, that the indemnifying party shall not be liable for
the expenses of more than one separate counsel (plus any local counsel)
representing each indemnified party who or which is a party to such action),
(ii) the indemnifying party shall not have employed counsel reasonably
satisfactory to the indemnified party to represent the indemnified party within
a reasonable time after notice of commencement of the action or (iii) the
indemnifying party has authorized the employment of counsel for the indemnified
party at the expense of the indemnifying party; and except that, if clause (i)
or (iii) is applicable, such liability shall be only in respect of the counsel
referred to in such clause (i) or (iii). The failure to notify an indemnifying
party promptly of the commencement of any such action, to the extent prejudicial
to his or her ability to defend such action, shall relieve such indemnifying
party of liability to the indemnified party under this Article V to such extent,
but the omission so to notify the indemnifying party will not relieve him or her
of any liability that he may have to any indemnified party otherwise than under
this Article V.
Section 5.7 Reports Under the 1934 Act. With a view to making
available to the Stockholders the benefits of Rule 144 promulgated under the
Securities Act and any other rule or regulation of the SEC that may at any time
permit a Stockholder to sell securities of the Company to the public without
registration, the Company agrees to use reasonable best efforts to:
(a) make and keep public information available, within the
meaning of Rule 144, at all times after the effective date of (i) the first
registration statement covering an underwritten public offering filed by the
Company or (ii) registration by the Company under the 1934 Act;
15
(b) following a public offering or a registration under the
1934 Act, file with the SEC in a timely manner all reports and other documents
required of the Company under the Securities Act and the 1934 Act; and
(c) furnish to any Stockholder forthwith upon request a
written statement by the Company that it has complied with the reporting
requirements of Rule 144 (at any time after 90 days after the effective date of
said first registration statement filed by the Company), and of the Securities
Act and the 1934 Act (at any time after it has become subject to such reporting
requirements), a copy of the most recent annual or quarterly report of the
Company, and such other reports and documents filed by the Company with the SEC
as may be reasonably requested in availing any such holder to take advantage of
any rule or regulation of the SEC permitting the selling of any such securities
without registration.
Section 5.8 Transfer of Registration Rights. The registration rights
of any Stockholder (and of any permitted transferee of any Stockholder or such
Stockholder's permitted transferees) under this Agreement with respect to any
Registrable Securities may be transferred to any transferee who acquires
Registrable Securities (otherwise than in a registered public offering or in any
sale under Rule 144 under the Securities Act) and executes an instrument
agreeing to be bound by this Agreement. The Stockholder shall give written
notice to the Company promptly after any such transfer stating the name and
address of the transferee and identifying the securities with respect to which
the rights under this Agreement are being assigned.
Section 5.9 Termination. All registration rights set forth in this
Article V above shall terminate on the fifth anniversary of the completion of
the QPO or, with respect to any Stockholder, at such time as all Registrable
Securities of such Stockholder may be sold within a three month period pursuant
to Rule 144.
Section 5.10 "Market Stand-Off" Agreement. Each of the Investors
agrees, severally and not jointly, if requested by the Company and an
underwriter of Common Stock (or other securities) of the Company, not to sell or
otherwise transfer or dispose of any Common Stock (or other securities) of the
Company held by such Investor during a period of up to 180 days following the
effective date of a registration statement of the Company filed under the
Securities Act; provided, however, that (a) such agreement only applies to the
first such registration statement of the Company including securities to be sold
on its behalf to the public in an underwritten offering; and (b) all officers
and directors of the Company and all Five Percent Stockholders (as defined
below) including shares in such offering enter into similar agreements. The
Company may impose stop-transfer instructions with respect to the shares (or
securities) subject to the foregoing restriction until the end of such period.
ARTICLE VI
NEGATIVE COVENANTS
Section 6.1 Negative Covenants. At any time when QuantRx or an
Affiliate of QuantRx holds at least 15% of the issued and outstanding shares of
Common Stock (subject to appropriate adjustment in the event of any dividend,
stock split, combination or other similar recapitalization affecting such
shares) on a Fully Diluted Basis, without the written consent of
16
QuantRx, the Company shall not, either directly or by amendment, merger,
consolidation or otherwise:
(a) consummate a public offering of its securities other
than a QPO;
(b) except in accordance with Article IV, increase or
decrease the authorized number of directors constituting the Board;
(c) perform any acquisition (including, by way of merger or
consolidation);
(d) dispose of all or a part of the assets of the Company in
a transaction or series of related transactions other than in the ordinary
course of business or as set forth in a budget or business plan approved by the
Board;
(e) perform any transaction that would constitute a "change
of control" of the Company (which, for the purposes of this Agreement, shall
mean the acquisition of the power, directly or indirectly, to direct the affairs
of the Company or the ability to elect a majority of the Board) other than such
a transaction with a Strategic Partner;
(f) liquidate or dissolve the Company, or take any action
(A) relating to bankruptcy, insolvency, reorganization or relief from creditors
seeking to adjudicate it bankrupt or seeking reorganization, adjustment,
winding-up, liquidation, dissolution, composition or other relief with respect
to the Company or (B) seek appointment of a receiver, trustee, custodian or
other similar official for it or all or any substantial part of its assets, or
making a general assignment for the benefit of its creditors;
(g) except for the Option Agreement, the Investment
Agreement and the transactions contemplated or permitted by either thereof (A)
create (1) any additional class of capital stock of the Company or (2) any
security having a direct or indirect equity participation in the Company or (B)
sell or issue shares of capital stock or warrants, options or rights to acquire
shares of capital stock or securities convertible into or exchangeable for
capital stock or any security having a direct or indirect equity participation
in the Company or (C) issue or incur any long-term debt securities or other long
term debt;
(h) amend or modify of any provision of the Certificate of
Incorporation or By-Laws that affects the rights of QuantRx or is contrary to
the terms of this Agreement;
(i) approve the Company's annual capital expenditure budget
and approve the Company's annual operating budget;
(j) approve any expenditures not included in the Company's
annual capital expenditure budget or annual operating budget;
(k) elect or appoint the Company's chief executive officer
or any other member of the Company's senior management;
17
(l) approve of the compensation (including salary, base,
bonus and all other items of compensation) for the senior management of the
Company or any material changes to such compensation;
(m) incur indebtedness for borrowed money in excess of
$25,000 in the aggregate during any fiscal year, increase the Company's lines of
credit or other credit facilities or place any encumbrance on the assets,
properties or revenues of the Company in excess of $25,000;
(n) materially change the business of the Company;
(o) declare or pay any dividend or distribution on any
shares of capital stock of the Company;
(p) enter into any agreement or transaction between the
Company and (A) any director or any officer of the Company or (B) any
Stockholder or any affiliate of a Stockholder that involves an agreement or
transaction in excess of $25,000; and
(q) make any decision with respect to any settlement of any
material litigation or other action or commence, or participate in, any
litigation or other action (whether civil or regulatory).
ARTICLE VII
QUANTRX PUT RIGHT
Section 7.1 QuantRx Put Right. If the rights of the Company under
the licenses from General Hospital Corporation shall be restricted, eliminated
or otherwise circumscribed such that the Company shall be unable to develop at
least one compound using one or more of the technologies licensed to the
Company, QuantRx shall have the right, at any time after such breach, to cause
the Company to redeem all (but not less than all) of the Common Stock then held
by QuantRx (the "Put Right"). QuantRx shall deliver to the Company written
notice of its election to exercise the Put Right (the "Put Notice").
Section 7.2 Put Price. Upon receipt of the Put Notice, the Company
shall redeem all (but not less than all) of the outstanding shares of Common
Stock then held by QuantRx, out of funds legally available therefor, at a
redemption price per share (the "Redemption Price") equal to the sum of (A)
$2.00, plus (B) the "Value", which Value shall be determined as follows:
(a) if the Common Stock is then traded on a nationally
recognized securities exchange or inter-dealer quotation system, the Value shall
be deemed to be the average of the closing prices of the Common Stock on such
exchange or system over the period commencing with the 30th trading day prior to
the date of delivery of the Put Notice and ending with the 30th trading day
after such date; provided that the ten highest closing prices and the ten lowest
closing prices during such period shall be disregarded in computing such
average;
(b) if the Common Stock is then traded over-the-counter, the
Value shall be deemed to be the average of the closing bid prices over the
period commencing with the 30th
18
trading day prior to the date of delivery of the Put Notice and ending with the
30th trading day after such date; provided that the ten highest closing bid
prices and the ten lowest closing bid prices during such period shall be
disregarded in computing such average; or
(c) if there is no active public market for the Common
Stock, the Value shall be the fair market value thereof, as mutually determined
by the Board and QuantRx; provided that if the Company and QuantRx are unable to
reach agreement, then such Value shall be determined by independent appraisal by
a mutually agreed to investment banker, the fees of which shall be paid by
Company.
Section 7.3 Payment of Redemption Price. Within 5 days after receipt
of the Put Notice, the Company shall pay to QuantRx the Redemption Price in cash
in immediately available funds by wire transfer to the bank account specified by
QuantRx in the Put Notice.
Section 7.4 Other Investors' Put Right. In the event QuantRx
exercises its Put Right under this Article VII, the other Investors shall also
have a Put Right on the terms and subject to the conditions set forth in this
Article VII. Notwithstanding anything to the contrary contained in this
Agreement, no Investor shall be permitted to exercise its put right under this
Section 7.4, or receive any redemption price, until QuantRx has received the
full amount of the Redemption price as set forth in Section 7.3.
ARTICLE VIII
STAGE 4 INVESTMENT REGISTRATION RIGHTS
Section 8.1 Stage 4 Investment. Each Investor agrees
that, after QuantRx shall have invested at least $9,000,000 in the Company,
QuantRx shall have the option, in its sole discretion, but subject to the
provisions of this Article VIII, to purchase all of the issued and outstanding
Common Stock of the Company owned by such Investor and all other Investors in a
stock-for-stock exchange, at the following valuations (i) $50,000,000 if the
Company has concluded one successful Phase II Trial, (ii) $70,000,000 if the
Company has concluded two successful Phase II Trials and (iii) $90,000,000 if
the Company has concluded three successful Phase II Trials (the "Stage 4
Investment"). For this purpose, the Investor's Common Stock shall be valued at
$4.00 per share or the then market price of the stock, whichever is lower. The
Stage 4 Investment shall be consummated pursuant to, and in accordance with, a
definitive agreement, which shall contain the terms and conditions set forth in
this Section 8.1 and shall be substantially similar to the Investment
Agreement.
Section 8.2. The Company's Valuation Right. The Company, within 30
days after at least $9,000,000 shall have been so invested by QuantRx, shall
make a determination of the value of the Company. If the Company shall determine
that the value of the Company is greater than 120% of the Stage 4 Investment
amount described above then applicable under Section 8.1, the Company shall have
the right to obtain a formal independent valuation (the "Independent Valuation")
of the Company and thereafter, if the Independent Valuation shall be greater
than such 120% amount, to seek to obtain a purchaser of all of the issued and
outstanding Common Stock of the Company upon terms consistent with the
Independent Valuation; provided, however, that QuantRx shall have a right of
first refusal in respect of a purchase of all of the issued and outstanding
Common Stock of the Company upon terms consistent with the
19
Independent Valuation. QuantRx must exercise its rights of first refusal within
30 days of the date of the Independent Valuation. The Independent Valuation
shall be completed within 60 days after at least $9,000,000 shall have been so
invested by QuantRx. QuantRx shall have the right to approve the Person that
conducts the Independent Valuation. If the Independent Valuation shall be equal
to or less than such 120% amount or if the Company shall be unable to consummate
a purchase greater than such 120% amount within six months after at least
$9,000,000 shall have been so invested, QuantRx shall have the right to complete
the Stage 4 Investment as provided herein.
Section 8.3 Public Offering. If QuantRx does not exercise its option
under Section 8.1 within 90 days after its right to do so, then the Company
shall have the right to conduct an initial public offering of the Common Stock
yielding net proceeds of at least three times the Post Money Valuation of the
Company as determined in accordance with the Pro Forma Table as of the end of
the prior round of investment at the per share price applicable to such
investment.
Section 8.4 Piggyback Registration. Within 60 days after the
completion of a Stage 4 Investment, QuantRx shall use its reasonable best
efforts to register any securities that would be received by stockholders of the
Company in connection with any stock-for-stock exchange under Section 8.1 under
the Securities Act for sale to the public. QuantRx shall promptly give written
notice to all stockholders of the Company of its intention to file such a
registration statement (the "QuantRx Notice"). Upon the written request of any
such stockholder, received by QuantRx within 30 days after the date the QuantRx
Notice is delivered, to register any of such holder's registrable securities,
QuantRx will use reasonable best efforts to cause the registrable securities as
to which registration shall have been so requested to be included in the
securities to be covered by the registration statement proposed to be filed by
QuantRx. If any registration pursuant to this Section 8.2 shall be, in whole or
in part, an underwritten public offering of Common Stock, the number of
registrable securities to be included in such an underwriting may be reduced on
a pari passu basis, or eliminated entirely, if and to the extent that the
managing underwriter shall be of the opinion that such inclusion would adversely
affect the marketing of the securities to be sold therein. If QuantRx shall be
unable to cause such registration to be effective for all securities eligible to
participate therein pursuant to the foregoing provisions, QuantRx shall be
obligated to undertake not more than two such additional registrations upon the
request of the then holders of a majority of the outstanding stock delivered by
QuantRx in consummating its Stage 4 Investment, but not more frequently than
annually.
Section 8.5 Sale Pursuant to Offer. If at any time the Company shall
receive an offer to purchase all of the issued and outstanding stock of the
Company or all or substantially all of its assets, or to otherwise enter into a
transaction or series of transactions, that will result in the Company receiving
net proceeds of equal to or in excess of 120% of the applicable Stage 4
Investment amount, subject to QuantRx' right of first refusal contained in
Section 8.2, the Company shall have the right to consummate such transaction
notwithstanding any other provision of this Agreement or the Investment
Agreement.
ARTICLE IX
MISCELLANEOUS
Section 9.1 Parties in Interest. All representations, covenants and
agreements
20
contained in this Agreement by or on behalf of any of the parties hereto shall
bind and inure to the benefit of the respective successors and assigns of the
parties hereto whether so expressed or not.
Section 9.2 Notices. All notices, requests, consents and other
communications hereunder shall be in writing and shall be delivered in person or
mailed by certified or registered mail, return receipt requested, or sent by a
recognized overnight courier service, addressed as follows:
(a) if to the Company, at
FluoroPharma, Inc.
c/o Puretech Ventures, LLC
000 Xxxxxxx Xxxxxx Xxxxx 0000,
Xxxxxx, XX 00000
Attn: Xxxxx Xxxxxxx
Telephone: 000-000-0000
Telecopy: 000-000-0000
with a copy to:
Xxxxx and Xxxxxxxx LLP
000 Xxxxxx Xxxxxx
Xxxxxx, XX 00000
Attn: Xxxxx X. Xxxxxxxx
Telephone: 000-000-0000
Telecopy: 000-000-0000
(b) if to QuantRx, at
QuantRx Biomedical Corporation
QuantRx Biomedical Corporation
Xxxxx 000, 000 Xxxxxxxxxx Xxxx
Xxxxxx, Xxxxxxxxxxxx 00000
Attn: Xxxxxx Xxxxxxxxx, President and Chief
Executive Officer
Telephone: 000-000-0000
Telecopy: 000-000-0000
with a copy to:
Xxxxxxx X. Xxxxxx, Esq.
Xxxxxxxxx Traurig, LP
The MetLife Building
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
21
(c) if to an Investor, at the address of such Investor set
forth on the Schedule of Investors attached hereto, as the case may be, or, in
any such case, at such other address or addresses as shall have been furnished
in writing by such party to the others. Notices shall be effective (i) upon
delivery, if delivered in person, (ii) three (3) days after deposit in the U.S.
mails, if mailed, and (iii) on the day following deposit with the courier
service, if sent by overnight courier.
Section 9.3 Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York, without giving
effect to its principles of conflicts of laws.
Section 9.4 Entire Agreement. This Agreement and the Investment
Agreement constitute the sole and entire agreement of the parties with respect
to the subject matter hereof.
Section 9.5 Counterparts. This Agreement may be executed in separate
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument. Signatures delivered by
facsimile transmission shall be deemed to be originals notwithstanding the
failure subsequently to deliver originally signed counterparts thereof.
Section 9.6 Amendments and Waivers. This Agreement may be amended or
modified, and provisions hereof may be waived, only with the written consent of
the Company and of QuantRx.
Section 9.7 Severability. If any provision of this Agreement shall
be declared void or unenforceable by any judicial or administrative authority,
the validity of any other provision and of the entire Agreement shall not be
affected thereby.
Section 9.8 Titles and Subtitles. The titles and subtitles used in
this Agreement are for convenience only and are not to be considered in
construing or interpreting any term or provision of this Agreement.
Section 9.9 No Waiver; Cumulative Remedies. No failure or delay on
the part of any party to this Agreement in exercising any right, power or remedy
hereunder shall operate as a waiver thereof; nor shall any single or partial
exercise of any such right, power or remedy preclude any other or further
exercise thereof or the exercise of any other right, power or remedy hereunder.
The remedies herein provided are cumulative and not exclusive of any remedies
provided by law.
Section 9.10 Additional Investors. Any additional investor purchasing
Common Stock from the Company shall, simultaneously with the execution and
delivery of a counterpart signature page to the definitive purchase agreement,
execute and deliver the counterpart signature page to this Agreement attached
hereto. Upon such execution and delivery, such additional investor shall become
a party to this Agreement and shall become an Investor hereunder with all the
rights and obligations of an Investor.
Section 9.11 Termination. Except as set forth in Section 5.9, this
Agreement shall
22
terminate and be of no further force and effect upon the closing of a QPO.
Section 9.12. Termination of Original Agreement and the BLSI
Agreement. This Agreement constitutes the sole and entire agreement and
understanding between the parties hereto as to the subject matter hereof, and
supersedes all prior discussions, agreements and understandings of every kind
and nature between them as to such subject matter. Specifically, the Original
Agreement and the BLSI Agreement are hereby superseded in full by this Agreement
and all rights and obligations under the Original Agreement and the BLSI
Agreement are hereby terminated.
ARTICLE X
DEFINITIONS
Section 10.1. Definitions. For the purposes of this Agreement:
"1934 Act" means the Securities Exchange Act of 1934, as amended.
An "Affiliate" of any Person means a Person that, directly or
indirectly, through one or more intermediaries, controls, is controlled by or is
under common control with the first mentioned Person. A Person shall be deemed
to control another Person if such first Person possesses, directly or
indirectly, the power to direct, or cause the direction of, the management and
policies of the second Person, whether through the ownership of voting
securities, by contract or otherwise.
"Five Percent Stockholder" means any person or entity that owns, at
the time of such effective date, five percent or more of the issued and
outstanding shares of Common Stock.
"Fully Diluted Basis" means that all options (including all options
available to be granted but not yet granted under any such plan), warrants or
other rights of any kind to acquire Common Stock and all securities convertible
or exchangeable (directly or indirectly) into Common Stock outstanding at that
time shall be deemed to have been fully exercised, converted or exchanged, as
the case may be, and the Common Stock issuable as a result thereof shall be
deemed to have been fully issued.
"GAAP" means generally accepted accounting principles in the United
States.
"New Securities" means any capital stock of the Company whether now
authorized or not, and rights, options or warrants to purchase capital stock,
and securities of any type whatsoever that are, or may become, convertible into
capital stock of the Company. New Securities shall not include (i) shares of
Common Stock issued upon the conversion of any shares of Preferred Stock; (ii)
securities issued upon the conversion or exercise of any debenture, warrant,
option or other convertible security that was outstanding on the date hereof or
that was issued to QuantRx under the Investment Agreement; (iii) securities
issued as a result of any stock split, stock dividend or reclassification of
Common Stock, distributable on a pro rata basis to all holders of Common Stock;
and (iv) securities issuable pursuant to a QPO.
23
"Person" means an individual, a corporation, an association, a joint
venture, a partnership, a limited liability company, an estate, a trust, an
unincorporated organization and any other entity or organization, governmental
or otherwise.
"Pro Rata Fraction" means, with respect to QuantRx or any Investor, a
number of Securities multiplied by a fraction, the numerator of which is the
total number of Securities owned by QuantRx or such Investor, and the
denominator of which is the total number of Securities owned by all
participating Investors (including QuantRx), in each case as of the applicable
date.
"QPO" means an initial public offering pursuant to an effective
registration statement under the Securities Act, covering the offer and sale of
Common Stock for the account of the Company yielding net proceeds of at least
three times the Post Money Valuation of the Company as determined in accordance
with the Pro Forma Table as of the end of the prior round of investment at the
per share price applicable to such investment.
"Register," "registered," and "registration" means a registration
effected by preparing and filing a registration statement in compliance with the
Securities Act and the declaration or ordering of effectiveness of such
registration statement.
"Registrable Securities" means (1) the Common Stock held by QuantRx
and each Investor (or Common Stock for or into which New Securities purchased by
the Investor pursuant to Article III may be exercised or converted), (2) any
Common Stock of the Company issued as a dividend or other distribution with
respect to, or in exchange or in replacement of, the Common Stock referred to in
the prior clauses, and (3) any Common Stock of the Company issuable upon
conversion, exercise or exchange of convertible securities, warrants, options or
similar rights issued as a dividend or other distribution with respect to, or in
exchange or in replacement of, the Common Stock; provided, however, that shares
of Common Stock which are "Registrable Securities" shall cease to be Registrable
Securities (i) upon any sale of such shares pursuant to an effective
registration statement under the Securities Act or Rule 144 under the Securities
Act or (ii) upon a transfer of such shares to a person or entity to whom or
which the registration rights granted in this Agreement have not been
transferred.
"Securities" means any shares of capital stock of the Company, or
securities exercisable for or convertible into shares of capital stock of the
Company.
"Securities Act" means the Securities Act of 1933, as amended.
"SEC" means the United States Securities and Exchange Commission.
"Stockholder" means QuantRx, any Investor holding Registrable
Securities and any other Person holding Registrable Securities to whom the
registration rights granted in this Agreement have been transferred.
"Transfer" means any direct or indirect transfer, donation, sale,
assignment, pledge, hypothecation, grant of a security interest in or other
disposal or attempted disposal of all or any
25
portion of a security, any interest or rights in a security, or any rights under
this Agreement. "Transferred" means the accomplishment of a Transfer, and
"Transferee" means the recipient of a Transfer.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, QuantRx, the Company, and the Investors have
executed, or caused to be executed, this Agreement as of the day and year first
above written.
QUANTRX BIOMEDICAL CORPORATION
By:
/s/ Xxxxxx Xxxxxxxxx
------------------------------------------
Name: Xxxxxx Xxxxxxxxx
Title: President and Chief Executive Officer
FLUOROPHARMA, INC.
By: /s/ Xxxxx Xxxxxxx
------------------------------------------
Name:
Title:
[TO BE EXECUTED BY ALL COMPANY STOCKHOLDERS]
INVESTORS
----------------------------------------------
Printed Name of Investor
----------------------------------------------
Signature
----------------------------------------------
Name of Signatory (for an entity only)
----------------------------------------------
Title of Signatory (for an entity only)
