Exhibit 10.2
SHAREHOLDER
AGREEMENT
Relating to
ASPERA CORP.
(a Delaware corporation)
This Shareholder Agreement (
Agreement ) is entered into by and among the named
Shareholders set forth on Exhibit A , attached hereto and
made a part hereof, BioForce Nanosciences, Inc. ( BioForce
), and Aspera Corp. ( Aspera ), effective the 11th day of
August, 2008 ( Effective Date ) with respect to the transfer
of certain assets to Aspera by BioForce, the license of
certain technology to Aspera by BioForce, and certain related
actions and events required and called for in connection therewith.
Each such named individual or entity is hereafter referred to
as a Shareholder or Party and together they are the
Shareholders or Parties .
In consideration for the promises and
obligations herein set forth, the receipt and sufficiency of which
are hereby acknowledged, the Parties agree as follows.
1. Priority .
Notwithstanding Aspera’s existing Articles of
Incorporation or Bylaws, subject only to applicable law, the
Parties agree that the provisions set forth herein supersede and
shall take precedence over any provisions relating to such matters
set forth in any other documents or understandings, and the Parties
shall cause all such conflicting documents to be promptly amended
or otherwise changed, and take all such other actions referenced or
required, in order to fully effect the provisions herein set
forth.
2. Shareholdings .
The share ownership of Aspera at the time of
execution of this Agreement is as set forth on Exhibit A.
Aspera hereby represents that it has no existing obligation
to issue any additional shares.
3. Aspera Balance
Sheet. Aspera’s balance sheet as of July 31,
2008 is attached as Exhibit B . Aspera hereby
represents that there have been no material changes to its balance
sheet since July 31, 2008.
4. Consideration for
Shares . BioForce shall contribute the consideration
as and when called for as set forth on Exhibit C and receive
therefore the number of shares (Shares) set forth.
5. Non-Dilution of BioForce
Shares . It is agreed that until such time that
Aspera has raised at least $2,000,000 in additional equity capital,
BioForce shall receive additional shares whenever Aspera issues
shares of its common stock, or equity or debt instruments which are
convertible into shares of its common stock, in such number to
insure that BioForce’s 19% ownership interest in Aspera is
not diluted. After Aspera has received at least $2,000,000 in
additional equity capital, BioForce’s shareholdings will be
subject to dilution in the same manner as all other shares of
Aspera. For the avoidance of doubt, if for example Aspera
raises $4 million in additional equity capital, only $2 million of
that financing shall dilute BioForce’s equity in
Aspera.
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6. BioForce Right to
Participate in Subsequent Financings. Aspera agrees to
promptly notify BioForce, in writing, of any proposed sale of its
equity securities, or any debt securities which are convertible
into equity securities. BioForce shall have the option to
participate in any such transaction in the amount which would be
necessary in order for it to maintain the same fully-diluted equity
ownership in Aspera as it holds immediately prior to the subsequent
financing, after taking into account the anti-dilution protection
contained in Section 5 hereof.
7. Board of
Directors . The Shareholders agree that the size of
the Board of Directors of the Company ( Board ) shall be
fixed at five (5) and that so long as the following named
Shareholders retain their current proportional shareholdings, they
shall retain the rights set forth. BioForce shall have and
retain the right to name one (1) director so long as it holds at
least fifty percent of the shares being purchased pursuant to this
Agreement. The BioForce director initially shall be Greg
Brown. Shareholders Eric Henderson and Saju Nettikadan, shall
also be initial board members. Kerry Frey shall be added as a
board member sixty days after the date of this agreement.
Henderson, Nettikadan and Frey shall be subject to removal
from the board by vote of a majority of the Shareholders. The
5 th board member shall be determined in the normal
course but shall be a non-Shareholder.
8. Stock Option Plan
. It is the intent of the Shareholders that a broad Stock
Option Plan ( SOP ) be adopted by the Company and
administered by the Board or such committee thereof as shall be
determined by the Board, and that such SOP shall be similar in
terms to that in place at BioForce, with which the Parties are
familiar, and be available for incentive use with, among others,
key employees and non-Shareholder Board members.
9. Officers .
The officer of the Company is: Saju Nettikadan, President and
Chief Science Officer, Kori Radke, Secretary, and Asrun
Kristmundsdottir, Treasurer.
10. First Right of
Refusal . In the event a Shareholder wishes to sell
his/her/its stock the following provisions shall
apply:
a) The Shareholder shall deliver to
the Company written notice stating their intention to sell/transfer
the shares, the name of the proposed recipient, the number of
shares to be sold/transferred, and the purchase price per share and
terms of payment of the proposed sale/transfer.
b) The Company shall have 15 days
after the receipt of the notice to purchase the shares, upon the
price and terms of payment designated in the notice.
c) If the Company elects not to
purchase or obtain the shares, the Shareholders shall have 15 days
after the receipt of the notice to purchase the shares, upon the
price and terms of payment designated in the notice.
d) If the Company and the
Shareholders elect not to purchase the shares, the Shareholder may
sell/transfer the shares to the proposed transferee, on the terms
as described in the Shareholder’s notice to the Company,
provided that the sale/transfer is completed within 30 days of the
expiration of the Shareholders’ right to purchase the
shares.
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e) Notwithstanding the above, a
Shareholder may transfer shares to a member of Shareholder’s
immediate family, or to an affiliate company if the Shareholder is
a corporate entity, so long as the transferee agrees to be bound by
the terms of this Agreement.
11. Shareholder Ceasing to
be an Employee . In the event that any of the
existing shareholders of Aspera (Henderson, Kristmundsdottir,
Johnson, Radke, Nettikadan and Mosher) cease to have a relationship
with the Company, as either an employee, director or consultant,
within twenty-four months of the date of this agreement, the
Company shall have the right to purchase a percentage of that
individual’s shares for a price equal to the price that the
shareholder paid for their shares when issued. The percentage
of shares that the company can buy back will be determined by the
length of the individual’s relationship with the company.
After two months, the company can buy back 80% of the
individual’s shares, with the buyback percentage reduced by
3.64% for each month thereafter. In order to exercise this right,
the Company must provide the shareholder with written notice of its
intent to do so within 90 days of the cessation of the
individual’s relationship with Aspera, and transfer the
purchase price to the shareholder within that same 90 day period.
Notwithstanding the above, the Company shall have no rights
under this Section 11 once it has a) raised $2 million in equity
capital from investors, b) received $1 million from gran
