STOCKHOLDERS’
AGREEMENT
This Stockholders’ Agreement (this “
Agreement ”) dated as of July10, 2009 (the “
Effective Date ”) is by and between MyoCardioCare,
Inc., a Delaware corporation (“ MCC ”), and
Biophan Technologies, Inc., a Nevada corporation
(“BIOPHAN”). MCC and BIOPHAN are
individually a “ Party ”, and together are the
“ Parties ,” to this Agreement.
WHEREAS, MCC has determined that it is in its
business interest to acquire certain assets and intellectual
property of BIOPHAN and BIOPHAN has determined it is in its
business interest to sell such assets and Intellectual property to
MCC; and
WHEREAS, in connection with the sale of assets
and intellectual property, BIOPHAN will receive a 20% ownership
interest in MCC;
NOW THEREFORE, in consideration of the mutual
covenants and agreements set forth herein, and for other good and
valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the Parties agree as follows:
1.
Rights of First Refusal .
(a) After
an initial sale of financing by MCC, which shall take place before
December 31, 2009, before any shares of MCC Stock, or any
beneficial interest therein, may be sold, by MCC, such shares shall
first be offered to BIOPHAN as set forth below.
(b) MCC
shall deliver a notice (the “Notice”) to BIOPHAN
stating (i) its intention to sell securities, (ii) the number of
securities proposed to be sold or transferred (the “Noticed
Shares”), and (iii) the price for which it is proposed to
sell or transfer the Noticed Shares and the terms of payment of
that price and other terms and conditions of sale.
(c) Within
five business days following receipt of the Notice, Biophan must
notify MCC in writing of its intention to purchase all or some of
the Noticed Shares ( pro rata on the basis of
BIOPHAN’s beneficial ownership interest in MCC at the time of
the Notice) on the same price, terms and conditions set forth in
the Notice. Biophan shall have thirty (30)
days to deliver the purchase price for the Noticed Shares and
complete the closing of the Noticed Shares.
(d) In
the case of a transfer of shares of MCC Stock not involving a sale,
the fair market value of the shares shall be determined in good
faith by the MCC’s Board of Directors. Fair market value
shall be determined after taking into account any potential initial
public offering or private sale, with no discount for lack of
control, minority interest, marketability, or any other discount.
The fair market value of any Stockholder’s shares shall be
such Stockholder’s percentage interest in the fair market
value of the Company as a whole.
(e) If
BIOPHAN (including any Permitted Assignees) does not elect to
purchase the Noticed Shares, then MCC may sell the Noticed Shares
to any purchaser at the price specified in the Notice or at a
higher price, provided that such sale or transfer is consummated
within five (5) months of the date of the Notice to
BIOPHAN.
(f) MCC
may, at any time prior to the sale, withdraw the Notice.
2.
Tag-Along_Rights .
(a) If
MCC, at any time or from time to time, enters into an agreement to
sell its shares in a public offering (a “Tag-Along
Sale”), then BIOPHAN shall have the right, but not the
obligation, to participate in such Tag-Along Sale by selling up to
its pro rata interest ( pro rata on the basis of
BIOPHAN’s beneficial ownership interest in MCC at the time of
the Tag-Along Sale)
(b) Any
such participation by BIOPHAN shall be on the same terms and
conditions as the proposed Tag-Along Sale, including any lock-up
provisions.
3. Miscellaneous.
(a)
No Third Party Beneficiaries . Except as
specifically provided in this Agreement, this Agreement shall not
confer any rights or remedies upon any Person other than the
Parties and their respective successors and permitted
assigns.
(b)
Entire Agreement . Except as agreed to by the
Parties in writing, this Agreement, the Schedules and
Exhibi
