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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


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