AMENDMENT NUMBER 1
to the October 14, 2002
AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
This Amendment Number 1 to the October 14, 2002 Amended and Restated
Registration Rights Agreement (the "Agreement"), made effective as of September
29, 2007, is by and between the Holders and BioForce Nanosciences Holdings, Inc.
(the "Company"), as successor to BioForce Nanosciences, Inc.
WHEREAS, the Holders possess certain registration rights as parties to the
October 14, 2002 Amended and Restated Registration Rights Agreement (the "Prior
Amendment");
WHEREAS, under Section 2(a) of the Prior Amendment the Holders may request
that their shares be included in a registration if the Company proposes to
register any shares of its capital stock under the Securities Act;
WHEREAS, as required by Section 2(a) of the Prior Agreement the Company
provided notice to the Holders of the Company's intent to file on or about
October 1, 2007 a registration statement under the Securities Act (the "Current
Registration") for shares of its capital stock owned by certain institutional
investors ("Institutional Investors"); and
WHEREAS, the Company has requested that the Holders enter into this
Agreement whereby they would agree to amend the Prior Amendment, waiving their
registration rights associated with the Current Registration in exchange for the
right to be included in a certain subsequent registration as explained more
fully below.
NOW, THEREFORE, in consideration of the premises, the mutual agreements
herein set forth below and other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, the parties agree as follows:
1. Until the earlier to occur of (a) six months after the registration statement
filed by the Company with the United States Securities and Exchange Commission
(the "SEC") in connection with the Current Registration is deemed effective by
the SEC or (b) such registration statement is withdrawn by the Company and not
promptly refiled, the Holders agree not to exercise any rights they have under
the Prior Amendment to request registration of their Registrable Shares except
as provided below.
2. If the Company is required to file more than one registration statement to
register the shares contemplated by the Current Registration, the Company agrees
to include in the subsequent filing as many of the Registrable Shares and any
other shares owned by Holders as of September 24, 2007 ("Additional Shares")
(collectively, "Holder Shares") as Holders indicate in writing that they desire
registered at that time.
3. If a registration statement including Holder Shares is filed under Section 2,
and less than all of the Holder Shares are registered under Section 2, the
Company agrees to file one or more registration statements for the Holders until
the Holder Shares are registered, subject to the minimum number of shares to be
registered being greater than 500,000.
4. If no registration statement including Holder Shares is filed under Section
2, the Company agrees to file a registration statement for the Holders,
including in the registration statement as many of the Holder Shares as the
Holders indicate in writing that they desire registered at that time. If less
than all of the Holder Shares are registered as a result of this filing, the
Company agrees to promptly file subsequent registration statements until all of
the Holder Shares that have been requested to be registered are registered. In
either case, the Company shall have no obligation to file a registration
statement if the number of Holder Shares to be included in the registration is
less than 500,000. The Company shall file the initial registration statement
under this Section no later than seven months following the date on which all of
the shares contemplated by the initial registration statement for the Current
Registration are registered or that registration statement is withdrawn and not
promptly refiled, but in any event no later than nine (9) months from the date
hereof. This nine-month time period shall be subject to automatic extensions for
any time after two (2) months from the date hereof that the Company is
diligently pursuing with the SEC the effectiveness of the initial registration
statement associated with the Current Registration.
5. The following shall determine the order of precedence for including shares in
a registration statement under this Agreement: the shares owned by the
Institutional Investors; followed by the Registrable Shares owned by all
Holders; followed by the Additional Shares owned by all Holders (the "Priority
Requirements").
6. In the event any Registrable Shares remain to be registered after exhaustion
of Section 3 or 4, their registration shall be governed by the Prior Amendment.
The Additional Shares shall have no further registration rights.
7. This Amendment shall be binding upon and inure to the benefit of the parties
hereto and their respective successors, heirs and assigns.
8. Each party warrants and represents that the person signing this Agreement has
the full and proper authority to do so and has been empowered to make and
execute this Agreement in the name of such party.
9. This Agreement may be executed in any number of counterparts, each of which
shall be deemed to be an original, and all of which taken together shall
constitute one and the same Agreement.
10. All capitalized terms used in the Agreement not otherwise defined herein
shall have the same meaning as in the Prior Amendment. All terms of the Prior
Amendment shall continue in full force and effect except as expressly modified
by this Agreement. All terms of the Prior Amendment shall apply to this
Agreement, including, without limitation, to the registration statement(s)
covering the Holders Shares contemplated hereby, except in the event and to the
extent they are expressly modified herein, in which case the terms of this
Agreement shall control.
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11. This Agreement shall become binding upon the Company and all Holders of
Registrable Shares upon its execution by the Holders of at least 51% of the
Registrable Shares.
BioForce Nanosciences Holdings, Inc.
By:
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Name:
Title:
HOLDER:
By:
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Name:
Title:
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