Exhibit 10.30
STOCK PURCHASE AND SALE AGREEMENT
This
Stock Purchase and Sale Agreement (“Agreement”) entered
into this _________ day of _________, 2006 by and between Wisconsin
Rural Enterprise Fund, LLC (“WREF”), a Wisconsin
Limited Liability Company, and BioDrain Medical, Inc.
(“BioDrain”), a Minnesota Corporation.
WHEREAS,
WREF has loaned BioDrain $12,500.00 (“WREF Loan”),
which is evidenced by a note from BioDrain to WREF (“BioDrain
Note”); and
WHEREAS,
the current principal balance of the WREF Loan is $12,500.00;
and
WHEREAS,
BioDrain has agreed to issue and WREF has agreed to accept 13,000
shares of BioDrain common stock as payment in full of the WREF
Loan; and
WHEREAS,
the Northwest Wisconsin Business Development Corporation
(“NWBDC”) loaned BioDrain $25,000.00 under its Micro
Loan Program (“Micro Loan”) and
WHEREAS,
the balance due under the Micro Loan as of December 1, 2006, will
be $25,965.03; and
WHEREAS,
NWBDC loaned BioDrain $18,000,00 under its Tech Seed Loan Program
(“Tech Loan”); and
WHEREAS,
the balance due under the Tech Loan as of December 1, 2006 will be
$18,000.00 in principal and $3,103.42 in interest; and
WHEREAS,
WREF wishes to purchase an additional 30,000 shares of BioDrain
common stock under the terms and conditions set forth
below.
NOW,
THEREFORE, in consideration of the mutual promises and covenants
herein contained, it is agreed by and between the parties as
follows:
ARTICLE I
SALE AND PURCHASE OF SHARES
1.1 WREF Loan . At
Closing, and as payment in full of the WREF Loan, BioDrain shall
issue 13,000 shares of BioDrain common stock to WREF.
1.2 Sale . BioDrain shall
sell 30,000 shares of BioDrain common stock to WREF for the price
of $1.00 per share payable in cash or equivalent at Closing, free
and clear of all liens, encumbrances, purchase rights, claims,
pledges, mortgages, security interests, or other limitations or
restrictions whatsoever, except for transfer restrictions under
state and
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federal securities laws (the
13,000 shares and the 30,000 shares shell be collectively referred
to as the “Shares”).
1.3 Purchase. Subject to
the terms and conditions of this Agreement and upon receipt of the
Shares and Warrant, WREF shall pay BioDrain the sum of $30,000,00
(“Purchase Price”) and mark the BioDrain Note
“Paid in Full.”
ARTICLE II
WARRANT
BioDrain
grants WREF a warrant to purchase a total of 35,000 fully paid and
non-assessable assessable shares of BioDrain common stock at the
price of $1.00 per share (the “Warrant”). The Warrant
shall expire on December 31, 2011 and may be exercised in whole or
in part and at any time or from time to time on or before December
31, 2011. The Warrant shall be in form reasonably acceptable to
WREF. The shares purchased under the Warrant shall be free and
clear of all lions, encumbrances, purchase rights, claims, pledges,
mortgages, security interests, or other limitations or restrictions
whatsoever, except for transfer restrictions under state and
federal securities laws.
ARTICLE III
CLOSING
Upon
all the terms and conditions of Article IV being met, WREF shall
promptly deliver to BioDrain $30,000.00 and the BioDrain Note
marked “Paid in Full” and BioDrain shall simultaneously
deliver to WREF 43,000 fully paid and non-assessable shares of
BioDrain common stock and the Warrant. Unless extended by mutual
written agreement of the parties, the sale and purchase of the
Shares must take place on or before December 1, 2006
(“Closing Date”), or this Agreement and any other
agreements entered into by either or both of the parties in
connection with this transaction shall be null and void.
ARTICLE IV
CONTINGENCIES TO CLOSING
4.1 WREF’s obligation to
close this transaction is contingent upon the fulfillment of the
following conditions or their waiver by WREF:
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A. A person chosen by WREF shall
have been elected to serve on the Board of Directors of BioDrain
until such time as BioDrain is no longer indebted to WBIC. At that
time BioDrain at its discretion and with due consideration given to
opinions expressed by WREF, would determine whether WREF would
continue to hold a Board seat. The decision would be based as well
on the limit of Board seats to seven people and any requests for
additional Board seats by any large, new investors.
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B. BioDrain shall pay $25,965.03
to NWBDC as payment in full of the Micro Loan.
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C. BioDrain shall pay $3,103.42
to NWBDC as payment of interest accrued to December 1, 2006, on the
Tech Loan.
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D. BioDrain shall sign a renewal
note in the amount of $18,000.00 representing the principal balance
due on the Tech Loan, Said note shall mature on December 1, 2007;
have a fixed rate of interest of 8.0% per annum; and monthly
payments of interest only due January 1, 2007, and on the first day
of each consecutive month thereafter.
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E. BioDrain shall issue 5,000
shares of its common stock to Wisconsin Business Innovation
Corporation (“WBIC”) in payment of technical assistance
provided by WBIC. The shares issued to WBIC shall be free and clear
of all liens, encumbrances, purchase rights, claims, pledges,
mortgages, security interests, or other limitations or restrictions
whatsoever, except for transfer restrictions under state and
federal securities laws
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F. All the representations and
warranties made by BioDrain in this Agreement shall be true and
correct in all material respects as of the date of tins Agreement
and the Closing Date.
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G. No material adverse change
shell have occurred and no event shall have occurred which, in the
judgment of WREF, might have a material adverse effect on
BioDrain.
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H. Delivery of the Shares and
Warrant
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I. BioDrain shall have obtained
all necessary approvals from its Board of Directors concerning the
terms of this Agreement
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4.2 BioDrain’s obligation
to close this transaction is contingent upon the fulfillment of the
following conditions or their waiver by BioDrain:
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A. All the representation and
warranties made by WREF in this Agreement shall be true and correct
in all material respects as of the date of this Agreement and the
Closing Date.
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B. Payment of the Purchase
Price.
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C. Receipt of the BioDrain Note
marked “Paid in Full.”
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ARTICLE V
CONTINUING CONDITIONS
5.1 So long as WREF is a
shareholder of BioDrain of BioDrain is indebted to WREF, the
following conditions shall be binding on BioDrain:
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A. In the event that BioDrain
issues one or more new classes or series of stock, each new class
or series of stock shall be subject to a right of first refusal in
favor of WREF. If BioDrain in receipt of a subscription agreement
or other offer to purchase (“Offer”) of any shares of
any class or series of stock from any person or entity other than
WREF, BioDrain shall, prior to acceptance of the Offer, and as a
condition to the validity of any such acceptance, send a complete
copy of the Offer to WREF, together with written notice to WREF
(“BioDrain’s Notice”) that WREF has the right to
purchase. on the same terms and conditions (on a per share basis)
specified in the Offer, up to the number of shares necessary for
WREF to maintain its percentage ownership in BioDrain prior to the
Offering on a fully diluted basis after the Offering.
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WREF
shall have seven (7) days from receipt of BioDrain’s Notice
to notify BioDrain of its intention to purchase all or a portion of
the stock in accordance with BioDrain’s Notice. If WREF
purchases fewer than all of the shares of stock it could purchase
to maintain its percent ownership, it shall state in its notice to
BioDrain the number of shares of stock it intends on
purchasing.
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If
WREF does not notify BioDrain within said seven (7) days of its
intention to purchase all or a portion of the stock as aforesaid,
then BioDrain shall have the right to sell the stock to the party
that made the Offer, but solely according to the terms and
conditions indicated in the Offer. If WREF notifies BioDrain that
it will only purchase a portion of the stock that it could
purchase, BioDrain may sell the remaining shares to the party who
made the Offer solely according to the terms and conditions
indicated in the Offer. If the stock is not transferred or conveyed
to the offeree upon the terms and conditions in the Offer within
four (4) months from the date WREF received BioDrain’s
Notice, then the BioDrain’s Notice theretofore given shall be
void, and the requirement that BioDrain comply with the above
procedure shall be reinstated, and WREF’s Right of First
Refusal shall remain in full force and effect. No sale, transfer,
conveyance or other disposition of stock from any new class or
series shall be effective unless BioDrain shall have first complied
in full with the provisions of this Article V.
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If
WREF exercises its Right of First Refusal, WREF shall purchase the
shares of BioDrain stock set forth in its notice within thirty (30)
days of BioDrain receiving WREF’s notice exercising this
Right of First Refusal. BioDrain agrees to transfer the stock to
WREF free and clear of all liens, encumbrances, purchase
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rights, claims, pledges,
mortgages, security interests, or other limitations or restrictions
whatsoever, except for transfer restrictions under state and
federal securities laws
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B. If BioDrain sells or otherwise
transfers, to any person or entity other than WREF, any shares of
BioDrain stock, whether authorized now or in the future, at a price
that is less than the weighted average of the price paid per share
for all BioDrain shares owned by WREF, BioDrain shall transfer to
WREF, at no cost to WREF, the number of shares of the same class or
series of stock determined as follows:
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1. Subtract the price paid per
share for the BioDrain stock purchased by the third party from the
weighted average of the price paid per share for all shares of
BioDrain stock owned by WREF.
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2. Multiply the amount calculated
in paragraph 1 above by the total number of shares of BioDrain
stock owned by WREF.
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3. Divide the amount calculated
in paragraph 2 above by the purchase price of each share of
BioDrain stock transferred to the third party, which is equal to
the number of shares of BioDrain stock to be transferred to
WREF.
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4. For example, if WREF owned
70,000 shares of BioDrain stock, a third party purchased 1000
shares of BioDrain stock at $0.80 per share and the weighted
average of all shares of BioDrain stock was $1.00 per share
, BioDrain would transfer 17,500 shares of stock to WREF -
$1.00 - $0.80 - $0.20; $0.20 x 70,000 shares - $14,000;
$14,000/$0.80/shares - 17,500 shares.
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5.3 So long as WREF is a
shareholder of BioDrain or BioDrain is indebted to WREF, BioDrain
shall locate and maintain a significant business presence in
Northwest Wisconsin.
ARTICLE VI
FINANCIAL STATEMENTS
6.1 BioDrain shall provide
quarterly, in-house financial statements to WREF within 60 days of
the end of each fiscal quarter, commencing with the quarter ending
March 31, 2007.
6.2 BioDrain shall provide WREF
an annual audited or reviewed financial statement within 90 days of
its fiscal year end, commencing for the year ending December 31,
2006.
ARTICLE XII
BIODRAIN’S REPRESENTATIONS AND WARRANTIES
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BioDrain
represents and warranties to WREF as follows:
7.1 BioDrain has issued only one
class and/or series of shares.
7.2 The current shareholders of
BioDrain and the number of shares owned by each shareholder are
listed on Exhibit A.
7.3 Except as set forth on
Exhibit B, there are no outstanding war
