EXHIBIT 10.12
FIRST SCIENTIFIC, INC.
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OPTION TO PURCHASE
SHARES OF COMMON STOCK
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THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED. IN THE ABSENCE OF AN EFFECTIVE REGISTRATION
STATEMENT UNDER SUCH ACT, THESE SECURITIES MAY NOT BE OFFERED, SOLD,
TRANSFERRED OR OTHERWISE DISPOSED OF, EXCEPT PURSUANT TO AN APPLICABLE
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF SAID ACT AND UPON
OBTAINING AN OPINION OF COUNSEL (WHICH MAY BE COUNSEL FOR THE
COMPANY), SATISFACTORY TO THE COMPANY, THAT SUCH DISPOSITION MAY BE
MADE WITHOUT REGISTRATION OF THE SECURITIES UNDER SUCH ACT, OR UNLESS
SOLD PURSUANT TO RULE 144. THE HOLDER OF THESE SECURITIES HAS AGREED
AND COVENANTED NOT TO OFFER OR SELL THESE SECURITIES IN THE UNITED
STATES, ITS TERRITORIES OR POSSESSIONS, OR TO PERSONS KNOWN TO BE
NATIONALS OR RESIDENTS OF THE UNITED STATES, UNTIL THE EXPIRATION OF
365 DAYS AFTER THE ISSUANCE THEREOF, AND THEREAFTER ONLY IF THE SHARES
ARE REGISTERED UNDER THE ACT OR AN EXEMPTION FROM THE REGISTRATION
REQUIREMENTS THEREUNDER IS AVAILABLE.
THIS CERTIFIES THAT ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ (the "Holder") is entitled to
purchase, on the terms hereof, shares representing Six and One-half Percent
(6.5%) of the issued and outstanding common stock of First Scientific, Inc., a
Delaware corporation (the "Company"), subject to adjustment as provided herein.
1. Exercise of Option. The terms and conditions upon which this Option
may be exercised, and the Common Stock covered hereby (the "Option Stock") may
be purchased, are as follows:
1.1 Term. This Option may be exercised in whole or in part at any
time and from time to time commencing after the date hereof, but in no case may
this Option be exercised later than the close of business on August 15, 2006
(the "Termination Date"), after which time this Option shall terminate and shall
be void and of no further force or effect.
1.2 Purchase Price. Except as adjusted pursuant to Section 2 hereof,
the per share purchase price for the shares of Common Stock to be issued upon
exercise of this Option shall be One-Tenth of One Cent ($0.001) per share of
Common Stock purchased.
1.3 Vesting Schedule. This Option shall vest as follows:
(a) Immediately upon the execution of this Option, the Holder
shall have the right to exercise and receive up to forty
percent (40%) of the total shares underlying this Option;
(b) On August 15, 2002, the first anniversary of the issuance of
this Option, the Holder shall have the right to exercise and
receive up to an additional thirty percent (30%) of the
total shares underlying this Option; and
(c) On August 15, 2003, the second anniversary of the issuance
of this Option, the Holder shall have the right to exercise
and receive up to the remaining thirty percent (30%) of the
total shares underlying this Option.
(d) Notwithstanding the foregoing paragraphs 1.3(a), 1.3(b), and
1.3(c), in the event a Change of Control (defined below)
occurs, the Holder may participate in the Change of Control
transaction as if this Option had been granted and exercised
immediately prior to the Change in Control.
(e) The term "Change in Control" shall mean a change in control
of beneficial ownership of First Scientific's voting
securities of a nature that would be required to be reported
pursuant to Item 6(e) of Schedule 14A of Regulation 14A
under the Securities Exchange Act of 1934, as amended (the
"Exchange Act") or any similar item on a successor or
revised form; provided, however, that a Change in Control
shall be deemed to have occurred when:
(i) Any "person" (as such term is used in Sections 13(d)
and 14(d) of the Exchange Act) is or becomes the
"beneficial owner" (as defined in Rule 13d?3 under the
Exchange Act), directly or indirectly, of securities
representing thirty percent (30%) or more of the
combined voting power of First Scientific's then
outstanding voting securities; or
(ii) During any period of three consecutive years, the
individuals who at the beginning of such period
constituted the Board, together with any Approved
Directors elected during such period, cease for any
reason to constitute at least a majority of the Board;
or
(iii) The shareholders of First Scientific approve a
plan of complete liquidation of First Scientific or an
agreement for the sale or disposition by First
Scientific of at least a majority of First Scientific's
assets.
1.4 Method of Exercise. The exercise of the purchase rights
evidenced by this Option shall be effected by (a) the surrender of the Option,
together with a duly executed copy of the form of subscription attached hereto,
to the Company at its principal offices and (b) the delivery of the purchase
price by ▇▇▇▇▇▇▇'s check payable to the Company's order for the number of shares
for which the purchase rights hereunder are being exercised. Subject to the
approval of the Company, in its sole discretion, and after confirmation with its
legal and or accounting advisers that an exercise under this Section 1 will not
result in adverse accounting treatment for the Company, and all or any part of
the Purchase Price and any withholding taxes may be paid by surrendering Shares
then issuable upon exercise of the Option having a fair market value on the date
of the Option exercise equal to the aggregate exercise price of the Option or
exercised portion. In the event this Option is exercised in part at any time
and not in whole, the Company shall promptly issue and deliver to the Holder a
replacement Option Agreement reflecting the number of shares of Common Stock of
the Company subject to such Option after giving effect to such partial exercise.
1.5 Issuance of Shares. Upon the exercise of the purchase rights
evidenced by this Option, a certificate or certificates for the purchased shares
shall be issued to the Holder as soon as practicable (and in any event within
three business days after exercise).
2. Certain Adjustments; Anti-Dilution Rights.
2.1 Anti-Dilution Rights; Calculation of Issued and Outstanding
Shares. The Holder shall be entitled to receive under this Option shares of the
Company's common stock equaling up to Six and One-half Percent (6.5%) of the
diluted issued and outstanding common stock of the Company (the "Diluted
Outstanding Stock"), calculated as follows:
(a) To determine the Diluted Outstanding Stock, the Company
shall use as its base, the number of shares issued and
outstanding as of the date of this Option, which was
33,571,951 shares (the "Undiluted Outstanding Stock"). To
the Undiluted Outstanding Stock, the Company shall add
shares of common stock equaling an additional Twenty-five
Percent (25%). The sum of the Undiluted Outstanding Stock
and the additional 25% shall be the Diluted Outstanding
Stock.
(b) Subject to the vesting schedule set forth in Paragraph 1.3
above, the Holder shall have the right to exercise and
receive under this Option shares equaling up to 6.5% of the
Diluted Outstanding Stock.
2.2 Adjustment to the Undiluted Outstanding Stock; Series B Preferred
Stock; Exercise of Anti-Dilution Rights; Reverse Split. In the event that the
Company issues additional shares of its common stock in connection with any of
the following transactions, the number of shares representing the Undiluted
Outstanding Stock shall be adjusted to include those shares issued in connection
with the following transactions:
(a) the conversion of all of the issued and outstanding shares
of the Company's Series 2000-B Convertible Preferred Stock;
(b) the effects of exercise of anti-dilution rights granted by
the Company to ▇▇▇▇ ▇▇▇▇▇▇ and/or Aspen Capital Resources,
LLC; or
(c) the effects of a reverse split of the Company's common
stock.
3. Fractional Shares. No fractional shares shall be issued in connection
with any exercise of this Option.
4. Reservation of Common Stock. The Company shall at all times reserve
and keep available out of its authorized but unissued shares of Common Stock,
solely for the purpose of effecting the exercise of this Option, such number of
its shares of Common Stock as shall from time to time be sufficient to effect
the exercise of this Option; and if at any time the number of authorized but
unissued shares of Common Stock shall not be sufficient to effect the exercise
of the entire Option, in addition to such other remedies as shall be available
to the Holder of this Option, the Company will use its reasonable best efforts
to take such corporate action as may, in the opinion of its counsel, be
necessary to increase its authorized but unissued shares of Common Stock to such
number of shares as shall be sufficient for such purposes.
5. Privilege of Stock Ownership. Prior to the exercise of this Option,
the Holder shall not be entitled, by virtue of holding this Option, to any
rights of a stockholder of the Company.
6. Transfers and Exchanges.
6.1 Subject to the limitations set forth below and subject to
compliance with applicable federal and state securities laws, all or any part of
this Option and all rights hereunder are transferable in whole or in part by
▇▇▇▇▇▇, provided such transfer is made in accordance with the provisions of that
certain Securities Purchase Agreement of even date herewith entered into by the
Holder, certain other Purchasers signatory thereto and the Company (the
"Securities Purchase Agreement"). The terms and conditions of such Securities
Purchase Agreement are hereby incorporated in and made a part of this Option
Agreement. The transfer shall be recorded on the books of the Company upon the
surrender of this Option, properly endorsed, to the Company at its principal
offices and the payment to the Company of all transfer taxes and other
governmental charges imposed on such transfer. In addition, the transferee
shall at the same time submit its written consent and acknowledgment, by which
the transferee shall covenant and agree to be bound by and comply with the
Securities Purchase Agreement. In the event of a partial transfer, the Company
shall issue to the several holders one or more appropriate new Options. The
Company may deem and treat the registered Holder as the absolute owner of the
Option (notwithstanding any notice of ownership or writing thereon made by
anyone other than the Company) for all purposes, and the Company will not be
affected by any notice to the contrary. No rights under and by virtue of this
Option shall pass and be transferred separately and apart from this Option.
6.2 All new Options issued in connection with transfers, exchanges or
partial exercises shall be identical in form and provision to this Option except
as to the number of shares issuable upon exercise thereof.
7. Successors and Assigns. The terms and provisions of this Option
Agreement shall be binding upon the Company and the Holder and their respective
successors and assigns, subject at all times to the restrictions set forth in
this Option Agreement and the Securities Purchase Agreement.
8. Loss, Theft, Destruction or Mutilation of Option. Upon receipt by the
Company of evidence reasonably satisfactory to it of the loss, theft,
destruction or mutilation of this Option Agreement, and, in case of loss, theft
or destruction, of indemnity or security reasonably satisfactory to the Company,
and upon reimbursement to the Company of all reasonable expenses incidental
thereto, and upon surrender and cancellation of this Option Agreement, if
mutilated, the Company will make and deliver a new Option Agreement of like
tenor and dated as of such cancellation, in lieu of this Option Agreement.
9. Amendment. This Option Agreement and the terms of the Options may be
amended only with the written consent of the Holder and the Company set forth in
a writing specifying such amendment.
10. Saturdays, Sundays, Holidays, etc. If the last or appointed day for
the taking of any action or the expiration of any right required or granted
herein shall be a Saturday or Sunday or shall be a legal holiday, then such
action may be taken or such right may be exercised, except as to the purchase
price, on the next succeeding day not a Saturday, Sunday or legal holiday.
11. Notices. Any notice or demand authorized by this Option shall be
sufficiently given or made, if in writing and personally served, sent by
telecopy followed by written confirmation of receipt, or deposited in the United
States mail, registered or certified, return receipt requested, postage prepaid,
at or to the address or telecopy number as the receiving party shall have
specified most recently by written notice to the other party. Notice shall be
deemed given on the date of service if personally served or if sent by telecopy.
Notice mailed as provided herein shall be deemed given on the next business day
following the date sent by Federal Express or comparable next-day-delivery
courier service, or on the third business day following the date mailed.
If to First Scientific: FIRST SCIENTIFIC, INC.
1877 West ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇
With a copy to: Durham ▇▇▇▇▇ & ▇▇▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
If to the Holder: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇
12. Investment Representation. The Holder, by accepting this Option,
represents that the Holder is acquiring the Option for his own account for
investment purposes and not with a view to any offer or distribution thereof and
that the Holder will not sell or otherwise dispose of the Option or the
underlying Option Stock in violation of applicable securities laws.
DATED AS OF August 15, 2001
FIRST SCIENTIFIC, INC.
By:
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, CEO and President