INVESTOR RIGHTS AGREEMENT
Exhibit
10.13
This Investor Rights Agreement (this
"Agreement") is made and
entered into effective as of December 31, 2009, among microHelix, Inc., an
Oregon corporation ("microHelix"), Aequitas Capital
Management, Inc., an Oregon corporation ("Aequitas") and
CarePayment, LLC, an Oregon limited liability company ("CarePayment").
Recitals
The parties have entered into a series
of agreements pursuant to which Aequitas and CarePayment have become the holders
of Series D Preferred Stock (the "Series D Preferred Stock")
issued by microHelix. The parties wish to enter into this Agreement
with regard to certain issues related to the Series D Preferred
Stock.
Agreement
In consideration of the mutual promises
ad covenants set forth in this Agreement, the parties agree as
follows:
1. SEC Expenses. As
long as Aequitas or CarePayment or any of their respective affiliates
(collectively the “Aequitas Entities”) own any securities of microHelix,
microHelix will pay all expenses incurred by or on behalf of the Aequitas
Entities in connection with the preparation and filing with the Securities and
Exchange Commission or other regulatory agencies of reports or other documents
related to microHelix or any securities owned by the Aequitas Entities in
microHelix.
2. Failure to Redeem Series D Preferred
Stock. If microHelix fails to redeem the Series D Preferred
Stock by January 31, 2013 in accordance with Section 4.1(b) of the Certificate
of Designation for the Series D Preferred Stock, (i) Aequitas or its assignee(s)
will have the right to exchange all of its 600,000 shares of Series D Preferred
Stock for 55.5 membership units ("Units") of WS Technologies LLC, and
CarePayment or its assignee(s) will have the right to exchange all of its
400,000 shares of Series D Preferred stock for 42.5 Units, and (ii) if Aequitas
or CarePayment (or their respective assignee(s)) exercises its rights as
described in this Section 2, microHelix will promptly cancel all exchanged
shares of Series D Preferred Stock. microHelix covenants that it will
not transfer any of its Units so long as any shares of Series D Preferred Stock
are held by the Aequitas Entities.
3. General
Provisions.
3.1 Further
Assurances. The parties will cooperate in taking such further
action as may be appropriate to carry out the transactions contemplated by this
Agreement.
3.2 Successors and
Assigns. This Agreement will be binding upon and will inure to
the benefit of the parties and their respective successors and permitted
assigns. The foregoing notwithstanding, neither party will be
permitted to assign its rights or delegate its obligations under this Agreement
to another party without the prior written consent of the other party to this
Agreement.
3.3 Alterations and
Waivers. The waiver, amendment or modification of any
provision of this Agreement or any right, power or remedy under this Agreement,
whether by agreement of the parties or by custom, course of dealing or trade
practice, will not be effective unless in writing and signed by the party
against whom enforcement of such waiver, amendment or modification is
sought. No failure or delay by either party in exercising any right,
power or remedy with respect to any of the provisions of this Agreement will
operate as a waiver of such provisions with respect to such
occurrences.
3.4 Governing Law. This
Agreement will be construed, governed and enforced in accordance with the laws
of the State of Oregon, without regard to its choice of law
provisions.
3.5 Integration and Entire
Agreement. This Agreement sets forth the entire understanding
among the parties and supersedes all previous and contemporaneous written or
oral negotiations, commitments, understandings, and agreements relating to the
subject matter of this Agreement and merge all prior and contemporaneous
discussions between the parties.
3.6 Counterparts and
Delivery. This Agreement may be executed in
counterparts. Each counterpart will be considered an original, and
all of them, taken together, will constitute a single Agreement. This
Agreement may be delivered by facsimile or electronically, and any such delivery
will have the same effect as physical delivery of a signed
original. At the request of any party, the other party will confirm
facsimile or electronic transmission signatures by signing an original
document.
3.7 Attorney Fees. In
the event suit or action is instituted to interpret or enforce this Agreement,
the prevailing party will be entitled to recover its attorney's fees, including
those incurred on appeal, as determined by the court or arbitrator.
3.8 Specific
Performance. The parties acknowledge they would be irreparably
damaged if any of the provisions of this Agreement are not performed in
accordance with their specific terms and that monetary damages would provide an
inadequate remedy. Accordingly, in addition to any other remedy at
law or in equity, the nonbreaching party will be entitled to injunctive relief
to prevent breaches of this Agreement and specifically to enforce this Agreement
without the need for posting any bond or other security.
3.9 Rules of
Construction. The parties have been represented by separate
counsel during the negotiation and execution of this Agreement and, therefore,
waive the application of any law regulation, holding or rule of construction
providing that ambiguities in an agreement or other document will be construed
against the parties drafting such agreement or document.
[Signatures
on following page]
IN
WITNESS WHEREOF, the parties have executed this Investor Rights Agreement as of
the Effective Date.
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MICROHELIX:
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MICROHELIX,
INC.
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By
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/s/ Xxxxx X. Xxxxxx
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Xxxxx
X. Xxxxxx
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Secretary
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AEQUITAS:
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AEQUITAS
CAPITAL MANAGEMENT, INC.
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By
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/s/ Xxxxxx X. Jesenik
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Xxxxxx
X. Jesenik, President
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CARE
PAYMENT:
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CARE
PAYMENT, LLC
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By
Aequitas Capital Management, Inc., its
Manager
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By
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/s/ Xxxxxx X. Jesenik
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Xxxxxx
X. Jesenik, President
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