OPTION AGREEMENT
OPTION AGREEMENT, dated as of November 1, 1996, between Aquagenix, Inc., a
Delaware corporation (the "Company"), and First Taconic Capital Corp., a company
the "Optionee").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, the Company proposes to issue to the Optionee One Hundred
Thousand (100,000) options (the "Options") to purchase up to One Hundred
Thousand (100,000) shares (the "Shares") of Common Stock of the Company, par
value $.01 per share (the "Common Stock"); and
WHEREAS, each option entitles Optionee to buy one share of common stock;
WHEREAS, the Options issued pursuant to this Agreement are being issued by
the Company to the Optionee.
NOW, THEREFORE, in consideration of the premises, the agreements herein
set forth and other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the parties hereto agree as follows:
1. Grant. The Optionee is hereby granted the right to purchase up to
-----
100,000 shares of Aquagenix Common Stock until 5:00 P.M., Eastern time, on or
before October 31, 1997, (the"Option Exercise Term"), at an exercise price of
$5.00 per share. Funds must be delivered by wire transfer or cashiers check on
or before November 1, 1997. It is hereby agreed that the Exercise of options may
not occur after this date. Optionees' right to exercise shall not survive past
the option exercise term, as defined in this paragraph 1.
2. Option Certificate. The Option certificates (the "Option
--------------------
Certificates") delivered and to be delivered pursuant to this Agreement shall be
in the form set forth in Exhibit A attached hereto and made a part hereof, with
such appropriate insertions, omissions, substitutions and other variations as
required or permitted by this Agreement.
3. Exercise of Option. The Options are exercisable at a price of Five
------------------
Dollars ($5.00) per Share purchased, payable in cash or by check to the order of
the Company, or any combination of cash or check, subject to adjustment as
provided in Article 8 hereof. Upon surrender of the Option Certificate with the
annexed Form of Election to Purchase duly executed, together with payment of the
Exercise Price (as hereinafter defined) for the Shares purchased, at the
Company's principal offices in Florida (currently located at 0000 XX 00xx
Xxxxxx, Xx. Lauderdale, FL 33309) the registered holder of an Option Certificate
("Holder" or "Holders") shall be entitled to receive a certificate or
certificates for the Shares so purchased. The purchase rights represented by
each Option Certificate are exercisable at the option of the Holder hereof, in
whole only.
4. Issuance of Certificates.
------------------------
Upon the exercise of the Options, the issuance of certificates for
the Shares purchased shall be made forthwith (and in any event within fourteen
(14) business days thereafter) without charge to the Holder thereof including,
without limitation, any tax which may be payable in respect of the issuance
thereof, and such certificates shall (subject to the provisions of Article 5
hereof) be issued in the name of, or in such names as may be directed by, the
2
Holder thereof; provided, however, that the Company shall not be required to pay
any tax which may be payable in respect of any transfer involved in the issuance
and delivery of any such certificates in a name other than that of the Holder
and the Company shall not be required to issue or deliver such certificates
unless or until the person or persons requesting the issuance thereof shall have
paid to the Company the amount of such tax or shall have established to the
satisfaction of the Company that such tax has been paid.
The Option Certificates and the certificates representing the Shares
shall be executed on behalf of the Company by the manual or facsimile signature
of the present or any future Chairman or Vice Chairman of the Board of Directors
or President or Vice President of the Company under its corporate seal
reproduced thereon, attested to by the manual or facsimile signature of the
present or any future Secretary or Assistant Secretary of the Company. Option
Certificates shall be dated the date of exchange by the Company upon initial
issuance, division, exchange, substitution or transfer.
Upon exercise, in part or in whole, of the Options, certificates
representing the Shares shall bear a legend substantially similar to the
following:
"The securities represented by this certificate have not been
registered under the Securities Act of 1933, as amended (the
"Act"), and may not be transferred, offered or sold except (I)
pursuant to an effective registration statement under the Act,
(ii) to the extent applicable, pursuant to Rule 144 under the
Act (or any similar rule under such Act relating to the
disposition of securities), or (iii) upon the delivery by the
holder to the Company of an opinion of counsel, reasonably
satisfactory to counsel to the Company, stating that an
exemption from registration under such Act is available."
5. Restriction on Transfer of Options.
----------------------------------
3
5.1 Transfers to Others by Optionee. The Options may be assigned in
-------------------------------
whole or in part to any person other than the optionee.
5.2 Transfer of Options. Except as provided in Section 5.1 hereof,
-------------------
the registered Holder of an Option Certificate, by its acceptance thereof,
agrees that the Options are being acquired as an investment and that the Options
may not be assigned, pledged, hypothecated or otherwise transferred except
pursuant to an effective registration under the Securities Act of 1933, as
amended (the "Act"), and in compliance with applicable state securities laws. In
order to make any assignment, the Holder must deliver to the Company the
assignment form annexed to the Option Certificate duly executed and completed,
together with the Option Certificate and payment of all transfer taxes, if any,
payable in connection therewith. The Company shall promptly transfer the Options
being assigned on the books of the Company and shall execute and deliver a new
Option Certificate or Certificates of like tenor to the appropriate assignee(s)
expressly evidencing the right to purchase the number of Shares purchasable
under the Option Certificate surrendered or such portion of such number as shall
be contemplated by any such assignment.
5.3 Transfer of Common Stock. The Shares underlying the Options
-------------------------
shall not be transferred unless (I) the Company has received the opinion of
counsel, satisfactory to the Company, that such shares may be transferred
pursuant to an exemption from registration under the Act and in compliance with
applicable state securities laws, or (ii) the transfer is made pursuant to an
effective registration statement under the Act in compliance with applicable
state securities laws.
4
6. Price.
-----
6.1 Initial Exercise Price. The initial exercise price of each
------------------------
Option shall be $5.00 per Share. The adjusted exercise price shall result from
time to time from any and all adjustments of the initial exercise price in
accordance with the provisions of Article 8 hereof.
6.2 Exercise Price. The term "Exercise Price" herein shall mean the
--------------
initial exercise price or the adjusted exercise price, depending upon the
context.
7. Registration Rights.
-------------------
7.1 Registration & Lock up. If at any time commencing six (6) months
----------------------
after the Options are exercised but prior to the first anniversary of such
exercise date, the Company shall propose the registration of an appropriate form
under the Securities Act of 1933, as amended, of any shares of Common Stock
(other than in connection with a merger or acquisition or an employee benefit
plan), the Company shall at least 30 days prior to the filing of such
registration statement give the Optionee written notice of such proposed
registration and, upon written notice give to the Company within 10 business
days after your receipt of such notice from the Company, shall include or cause
to be included in any such registration all or such portion of the shares of
Common Stock received pursuant to the Exercise of the Options, as the Optionee
may request, provided, however, that the Company may at any time withdraw or
cease proceeding with any such registration if it shall at the same time
withdraw or cease proceeding with the registration of such Common Stock
originally proposed to be registered. None of the shares have been registered
under the Securiites Act of 1933.
5
7.2 Registrable Securities. As used herein, the term "Registrable
-----------------------
Security" means the Shares and any shares of Common Stock issued upon any stock
split or stock dividend in respect of such Shares; PROVIDED, HOWEVER, that with
respect to any particular Registrable Security, such security shall cease to be
a Registrable Security when, as of the date of determination, (I) it has been
effectively registered under the Act and disposed of pursuant thereto or (ii) it
has ceased to be outstanding. The term "Registrable Securities" means any and/or
all of the securities falling within the foregoing definition of a "Registrable
Security." In the event of any merger, reorganization, consolidation,
recapitalization or other change in corporate structure affecting the Common
Stock, such adjustment shall be made in the definition of "Registrable Security"
as is appropriate in order to prevent any dilution or enlargement of the rights
granted pursuant to this Article 7.
7.3 Piggyback Registration. After exercising the options; if, at any
----------------------
time after the six month potential holding period and before one (1) year ending
October 31, 1997, the Company plans to prepare and file any new registration
statement or post-effective amendments thereto covering equity or debt
securities of the Company, or any such securities of the Company held by its
shareholders (in any such case, other than in connection with a merger,
acquisition or pursuant to Form S-8 or successor form) (for purposes of this
Article 7, collectively, the "Registration Statement"), it will give written
notice of its intention to do so by registered mail ("Notice"), at least thirty
(30) days prior to the filing of each such Registration Statement, to Optionee
and its counsel. Upon the written request of a holder of Registrable Securities
(a "Requesting Holder"), made within twenty (20) days after receipt of the
Notice, that the Company include any of the Requesting Holder's Registrable
6
Securities in the proposed Registration Statement, the Company shall, as to each
such Requesting Holder, use its best efforts to effect the registration under
the Act of the Registrable Securities which it has been so requested to register
("Piggyback Registration"), at the Company's sole cost and expense provided that
(a) the Requesting Holders shall pay any and all (I) underwriting and
broker-dealer discounts, commissions and non-accountable expenses of any
underwriter or broker-dealer in connection with the sale of the Registrable
Securities, (ii) the fees and expenses of any legal counsel selected by the
Requesting Holders to represent them in connection with the sales of the
Registrable Securities and, (iii) all transfer, income and other taxes, and (b)
the Requesting Holders shall furnish the Company with such appropriate
information in connection therewith as the Company shall reasonably request in
writing.
Notwithstanding the provisions of this Section 7.3, the
Company shall have the right at any time after it shall have given written
notice pursuant to this Section 7.3 (irrespective of whether any written request
for inclusion of such securities shall have already been made) to elect not to
file any such proposed Registration Statement, or to withdraw the same after the
filing but prior to the effective date thereof.
Notwithstanding the provisions of this Section 7.3, if, in the
written opinion of the managing underwriter or underwriters, if any, for such
offering, the inclusion of the Registrable Securities, when added to the
securities being registered by the Company or the selling stockholder(s), will
exceed the maximum amount of the Company's securities which can be marketed (a)
at a price reasonably related to their then current market value, or (b) without
materially and adversely affecting the entire offering, then the Company may
7
exclude from such Registration Statement and offering all or any portion of the
Registrable Securities requested to be so registered. In the event that any
Registrable Securities are so excluded, then the number of securities to be sold
by all stockholders in such public offering shall be apportioned pro rata among
all such selling stockholders, including all Holders of Registrable Securities,
according to the total amount of securities of the Company requested to be
registered by said selling stockholders, including all Holder(s) of the
Registrable Securities. The registered Holders of the Options, by their
acceptance thereof, acknowledge and agree that pursuant to the Warrant
Agreement, dated as of September 12, 1994 (the "Warrant Agreement"), by and
between the Company and Whale Securities Co., L.P., the Company has granted
certain registration rights to the holders of the Warrants issued pursuant to
the Warrant Agreement and the shares of the Common Stock underlying such
Warrants. Notwithstanding any other provision contained herein, the Company
shall not be required to take any action pursuant to this Section 7.3 which
conflicts with, or violates, any provision of the Warrant Agreement.
7.4 Covenants with Respect to Registration.
--------------------------------------
(a) The Company shall pay all costs, fees and expenses in
connection with all Registration Statements filed pursuant to Section 7.3 hereof
including, without limitation, the Company's legal and accounting fees, printing
expenses, and blue sky fees and expenses.
(b) The Company will take all necessary action which may be
required in qualifying or registering the Registrable Securities included in a
Registration Statement, for offering and sale under the securities or blue sky
laws of such states as are requested by the holders of such securities, provide,
however, that in no event shall the Company be required to register the
8
Registrable Securities in any state in which such registration would cause the
Company to be obligated to qualify to do business in such state or to execute a
general consent to service or process.
(c) The Company shall indemnify any Holder of the Registrable
Securities to be sold pursuant to any Registration Statement and any underwriter
or person deemed to be an underwriter under the Act and each person, if any, who
controls such Holder or underwriter or person deemed to be an underwriter within
the meaning of Section 15 of the Act or Section 20(a) of the Securities Exchange
Act of 1934, as amended ("Exchange Act"), against all loss, claim, damage,
expense or liability (including all expenses reasonably incurred in
investigating, preparing or defending against any claim whatsoever) to which any
of them may become subject under the Act, the Exchange Act or otherwise, insofar
as such losses, claims, damages, expenses or liabilities (or actions in respect
thereof) arise out of or are based upon (I) any untrue statement or alleged
untrue statement of a material fact contained in such Registration Statement or
any preliminary or final prospectus constituting a part thereof or any amendment
or supplement thereto (collectively, the "Offering Documents"), or (ii) the
omission or alleged omission by the Company to state in the Offering Documents a
material fact required to be stated therein or necessary to makie the statements
therein, in light of the circumstances under which they were made, not
misleading; provided, however, that the Company will not be liable in any such
case to any one of the Holder(s) to the extent that any such loss, claim,
damage, expense or liability arises out of or is based upon any untrue statement
9
or alleged untrue statement or omission or alleged omission made in reliance
upon and in conformity with written information furnished to the Company by such
Holder for use in the preparation of the Offering Documents.
(d) Any holder of Registrable Securities to be sold pursuant
to a registration statement, and its successors and assigns, shall severally,
and not jointly, indemnify the Company, its officers and directors and each
person, if any, who controls the Company within the meaning of Section 15 of the
Act or Section 20(a) of the Exchange Act, against all loss, claim, damage,
expense or liability (including all expenses reasonably incurred in
investigating, preparing or defending against any claim whatsoever) to which
they may become subject under the Act, the Exchange Act or otherwise, insofar as
such losses, claims, damages, expenses or liabilities (or actions in respect
thereof) arise out of or are based upon (I) any untrue statement or alleged
untrue statement of a material fact contained in the Offering Documents, or (ii)
the omission or alleged omission to state in the Offering Documents a material
fact required to be stated therein or necessary to make the statements therein,
in light of the circumstances under which they were made, not misleading; but in
each case, only if and to the extent that such untrue statement or alleged
untrue statement or omission or alleged omission was made in reliance upon or in
conformity with written information furnished to the Company by such Holder
specifically for use in the preparation of the Offering Documents.
(e) If the indemnification provided for in this Section 7.4 is
unavailable to any indemnified party in respect to any losses, claims, damages,
liabilities or expenses referred to therein, then the indemnifying party, in
lieu of indemnifying such indemnified party, will contribute to the amount paid
10
or payable by such indemnified party, as a result of such losses, claims,
damage, liabilities or expenses in such proportion as is appropriate to reflect
the relative fault of the Company on the one hand, and of the Holder of the
Registrable Securities who seeks contribution or from whom contribution is
sought on the other hand, in connection with the statements or omissions which
resulted in such losses, claims, damages, liabilities or expenses as well as any
other relevant equitable considerations. The relative fault of the Company on
the one hand, and such Holder of the Registrable Securities on the other hand,
will be determined with reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission to state a fact
relates to information supplied by the Company or the Holder, and their relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission, provided, however, that amount which such Holder of
Registrable Securities shall be required to contribute pursuant to this
subparagraph (e) shall not be in excess of the amount received by the Holder
from the sale of its securities.
(f) Nothing contained in this Agreement shall be construed as
requiring any Holder to exercise his Option prior to the initial filing of any
registration statement or the effectiveness thereof.
(g) The Company shall deliver promptly to each Holder of
Registrable Securities participating in the offering requesting the
correspondence and emoranda described in this Section 7.4(g) and to the managing
underwriter, if any, copies of all correspondence between the Commission and the
Company, its counsel or auditors and all memoranda relating to discussions with
the Commission or its staff with respect to the Registration Statement and
11
permit each holder of Registrable Securities and underwriters to do such
investigation, upon reasonable advance notice, with respect to information
contained in or omitted from the Registration Statement as it deems reasonably
necessary to comply with applicable securities laws or rules of the National
Association of Securities Dealers, Inc. ("NASD"). Such investigation shall
include access to books, records and properties and opportunities to discuss the
business of the Company with its officers and independent auditors, all to such
reasonable extent and at such reasonable times and as often as any such holder
of Registrable Securities or underwriter shall reasonably request.
(h) If the Company shall enter into an underwriting agreement
with the managing underwriter selected for such underwriting, such agreement
shall contain such representations, options and covenants by the Company and
such other terms as are customarily contained in agreements of that type used by
the managing underwriter. The holders of Registrable Securities shall be parties
to any underwriting agreement relating to an underwritten sale of their
Registrable Securities and may, at their option, require that any or all of the
representations, options and covenants of the Company to or for the benefit of
such underwriter shall also be made to and for the benefit of such holders of
Registrable Securities. Such holders of Registrable Securities shall not be
required to make any representations or agreements with the Company or the
underwriter except as they may relate to such holders of Registrable Securities
and their intended methods of distribution.
12
8. Adjustments of Exercise Price and Number of Securities. The
-------------------------------------------------------------
following adjustments apply to the Exercise Price of the Options with respect to
the Shares and the number of Shares purchasable upon exercise of the Options.
8.1 Reclassification, Consolidation, Merger, etc.. In case of any
-----------------------------------------------
reclassification or change of the outstanding shares of Common Stock (other than
a change in par value to no par value, or from no par value to par value, or as
a result of a subdivision or combination), or in the case of any consolidation
of the Company with, or merger of the Company into, another corporation (other
than a consolidation or merger in which the Company is the surviving corporation
and which does not result in any reclassification or change as a result of a
subdivision or combination of such shares or a change in par value, as
aforesaid), or in the case of a sale or conveyance to another corporation of the
property of the Company as an entirety, the Holders shall thereafter have the
right to purchase the kind and number of shares of stock and other securities
and property receivable upon such reclassification, change, consolidation,
merger, sale, or conveyance as if the Holders were the owners of the Shares
immediately prior to any such events, at a price equal to the product of (x) the
number of shares of Common Stock issuable upon exercise of the Holders' Options
and (y) the Exercise Price in effect immediately prior to the record date for
such reclassification, change, consolidation, merger, sale or conveyance as if
such Holders had exercised the Options.
8.2 Determination of Outstanding Shares of Common Stock. The number
----------------------------------------------------
of shares of Common Stock at any one time outstanding shall include the
aggregate number of shares issued or issuable upon the exercise of options,
rights, warrants and upon the conversion or exchange of convertible or
exchangeable securities.
13
8.3 Dividends and Other Distributions with Respect to Outstanding
--------------------------------------------------------------
Securities. In the event that the Company shall at any time prior to the
----------
exercise of the Options declare a dividend or otherwise distribute to its
shareholders any monies, assets, property, rights, evidences of indebtedness,
securities, whether issued by the Company or by another person or entity, or any
other thing of value, the Holders of the unexercised Options shall not be
entitled, to receive such monies, property, assets, rights, evidences of
indebtedness, securities or any other thing of value.
8.4 Subscription Rights for Shares of Common Stock or Other
--------------------------------------------------------------
Securities. In the case that the Company shall at any time after the date hereof
----------
and prior to the exercise of the Options issue any rights to subscribe for
shares of Common Stock or any other securities of the Company to all the
shareholders of the Company, the Holders of the unexercised Options shall not be
entitled, to receive such rights.
9. Exchange and Replacement of Option Certificates.
-----------------------------------------------
Each Option Certificate is exchangeable without expense, upon the
surrender hereof by the registered Holder at the principal executive office of
the Company, for a new Option Certificate of like tenor and date representing in
the aggregate the right to purchase the same number of securities in such
denominations as shall be designated by the Holder thereof at the time of such
surrender.
Upon receipt by the Company of evidence reasonably satisfactory to
it of the loss, theft, destruction or mutilation of any Option Certificate, and,
14
in case of loss, theft or destruction, of indemnity or security reasonably
satisfactory to it, and reimbursement to the Company of all reasonable expenses
incidental thereto, and upon surrender and cancellation of the Options, if
mutilated, the Company will make and deliver a new Option Certificate of like
tenor, in lieu thereof.
10. Elimination of Fractional Interests.
-----------------------------------
The Company shall not be required to issue certificates representing
fractions of Shares upon the exercise of the Options, nor shall it be required
to issue scrip or pay cash in lieu of fractional interests, it being the intent
of the parties that all fractional interests shall be eliminated by rounding any
fraction up to the nearest whole number of Shares.
11. Reservation of Securities.
-------------------------
The Company shall at all times reserve and keep available out of its
authorized shares of Common Stock, solely for the purpose of issuance upon the
exercise of the Options, such number of shares of Common Stock as shall be
issuable upon the exercise thereof. The Company covenants and agrees that, upon
exercise of the Options and payment of the Exercise Price therefor, all Shares
issuable upon such exercise shall be duly and validly issued, fully paid,
non-assessable and not subject to the preemptive rights of any shareholder.
12. Notice to Option Holders.
------------------------
Nothing contained in this Agreement shall be construed as conferring
upon the Holder or Holders the right to vote or to consent or to receive notice
as a shareholder in respect of any meetings of shareholders for the election of
Directors or any other matter, or as having any rights whatsoever as a
15
shareholder of the Company. If, however, at any time prior to the expiration of
the Options and their exercise, any of the following events shall occur:
(a) the Company shall take a record of the holders of its shares of
Common Stock for the purpose of entitling them to receive a dividend or
distribution payable otherwise than in cash, or a cash dividend or distribution
payable otherwise than out of current or retained earnings, as indicated by the
accounting treatment of such dividend or distribution on the books of the
Company; or
(b) the Company shall offer to all the Holders of its Common Stock
any additional shares of capital stock of the Company or securities convertible
into or exchangeable for shares of capital stock of the Company, or any option
or right to subscribe therefor; or a dissolution, liquidation or winding up of
the Company (other than in connection with a consolidation or merger) or a sale
of all or substantially all of its property, assets and business as an entirety
shall be proposed; then, in any one or more of said events, the Company shall
give written notice to the Holder or Holders of such event at least fifteen (15)
days prior to the date fixed as a record date or the date of closing the
transfer books for the determination of the Shareholders entitled to such
dividend, distribution, convertible or exchangeable securities or subscription
rights or options, or entitled to vote on such proposed dissolution,
liquidation, winding up or sale. Such notice shall specify such record date or
the date of closing the transfer books, as the case may be. Failure to give such
notice or any defect therein shall not affect the validity of any action taken
in connection with the declaration or payment of any such dividend or
distribution, or the issuance of any convertible or exchangeable securities or
subscription rights or options or any proposed dissolution, liquidation, winding
up or sale.
16
13. Notices.
-------
All notices, requests, consents and other communications hereunder
shall be in writing and shall be deemed to have been duly made when delivered,
or mailed by registered or certified mail, return receipt requested:
(a) If to a registered Holder of the Options, to the address of
such Holder as shown on the books of the Company; or
(b) If to the Company, to the address set forth in Section 3 of this
Agreement or to such other address as the Company may designate by notice to the
Holders.
14. Supplements and Amendments.
--------------------------
The Company and the Optionee may from time to time supplement or
amend this Agreement without the approval of any Holders of the Options in order
to cure any ambiguity, to correct or supplement any provision contained herein
which may be defective or inconsistent with any provisions herein, or to make
any other provisions in regard to matters or questions arising hereunder which
the Company and the Optionee may dnecessary or desirable and which the Company
and the Optionee deem not to adversely affect the interests of the Holders of
Option Certificates. Holders of Option Certificates.
17
15. Successors.
----------
All the covenants and provisions of this Agreement by or for the
benefit of the Company and the Holders inure to the benefit of their respective
successors and assigns hereunder.
16. Termination.
-----------
This Agreement shall terminate at the close of business on October
31, 1998. Notwithstanding the foregoing, this Agreement will terminate on any
earlier date when all Options have been exercised and all Option Securities have
been resold to the public. This agreement shall terminate in the event that the
options are not exercised on or before February 1,1997.
17. Governing Law.
-------------
This Agreement and each Option Certificate issued hereunder shall be
deemed to be a contract made under the laws of the State of Delaware and for all
purposes shall be construed in accordance with the laws of said State.
18. Benefits of This Agreement.
--------------------------
Nothing in this Agreement shall be construed to give to any person
or corporation other than the Company and the Optionee and any other registered
holder or holders of the Option Certificates or Option Securities any legal or
equitable right, remedy or claim under this Agreement; and this Agreement shall
be for the sole and exclusive benefit of the Company and the Optionee and any
other holder or holders of the Option Certificates or Option Securities.
18
19. Counterparts.
------------
This Agreement may be executed in any number of counterparts and
each of such counterparts shall for all purposes be deemed to be an original,
and such counterparts shall together constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed, as of the day and year first above written.
AQUAGENIX, INC.
By: /s/ Xxxxxx Xxxxxxx
----------------------------------
Name: Xxxxxx Xxxxxxx
Title: Chairman of the Board
By: /s/ Xxxxxxx X. Xxxxxxx
----------------------------------
First Taconic Capital
19
EXHIBIT A
THE OPTIONS REPRESENTED BY THIS CERTIFICATE AND THE OTHER SECURITIES ISSUABLE
UPON EXERCISE THEREOF HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933,
AS AMENDED (THE "ACT"), AND MAY NOT BE TRANSFERRED, OFFERED OR SOLD EXCEPT (I)
PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT, (ii) TO THE
EXTENT APPLICABLE, PURSUANT TO RULE 144 UNDER SUCH ACT (OR ANY SIMILAR RULE
UNDER SUCH ACT RELATING TO THE DISPOSITION OF SECURITIES), OR (iii) UPON THE
DELIVERY BY THE HOLDER TO THE COMPANY OF AN OPINION OF COUNSEL, REASONABLY
SATISFACTORY TO COUNSEL FOR THE ISSUER, STATING THAT AN EXEMPTION FROM
REGISTRATION UNDER SUCH ACT IS AVAILABLE.
THE TRANSFER OR EXCHANGE OF THE OPTIONS REPRESENTED BY THIS CERTIFICATE IS
RESTRICTED IN ACCORDANCE WITH THE OPTION AGREEMENT REFERRED TO HEREIN.
EXERCISABLE ON OR BEFORE
5:00 P.M., MIAMI TIME, OCTOBER 31, 1997
No. W-1 100,000 Options
OPTION CERTIFICATE
This Option Certificate certifies that First Taconic Capital Corp. or
registered assigns, is the registered holder of Options to purchase, at any time
until 5:00 P.M. Miami time on October 31, 1997 ("Expiration Date"), up to an
aggregate of 100,000 fully-paid and non-assessable shares of Common Stock, $.01
par value ("Common Stock"), of Aquagenix, Inc., a Delaware corporation (the
"Company"), at the initial exercise price, subject to adjustment in certain
events (the "Exercise Price"), of $5.00 per share of Common Stock upon surrender
of this Option Certificate and payment of the Exercise Price at an office or
agency of the Company, but subject to the conditions set forth herein. Payment
of the Exercise Price may be made in cash, or by certified or official bank
check in Miami Clearing House funds payable to the order of the Company, or any
combination of cash or check.
No Option may be exercised after 5:00 P.M., Miami time, on the Expiration
Date, at which time all Options evidenced hereby, unless exercised prior
thereto, shall thereafter be void.
The Options evidenced by this Option Certificate are part of a
duly-authorized issue of Options issued pursuant to the Option Agreement dated
November 1, 1996, between the Company and First Taconic Capital (the "Option
Agreement), which Option Agreement is hereby incorporated by reference in and
made a part of this instrument and is hereby referred to for a description of
the rights, limitation of rights, obligations, duties and immunities thereunder
of the Company and the holders (the words "holders" or "holder" meaning the
registered holders or registered holder) of the Options.
20
The Option Agreement provides that upon the occurrence of certain events,
the Exercise Price and the type and/or number of the Company's securities
issuable thereupon may, subject to certain conditions, be adjusted. In such
event, the Company will, at the request of the holder, issue a new Option
Certificate evidencing the adjustment in the Exercise Price and the number
and/or type of securities issuable upon the exercise of the Options; provided,
however, that the failure of the Company to issue such new Option Certificates
shall not in any way change, alter, or otherwise impair, the rights of the
holder as set forth in the Option Agreement.
Upon due presentment for registration of transfer of this Option
Certificate at an office or agency of the Company, a new Option Certificate or
Option Certificates of like tenor and evidencing in the aggregate a like number
of Options shall be issued to the transferee(s) in exchange for this Option
Certificate, subject to the limitations provided herein and in the Option
Agreement, without any charge except for any tax, or other governmental charge
imposed in connection therewith.
Upon the exercise of less than all of the Options evidenced by this
Certificate, the Company shall forthwith issue to the holder hereof a new Option
Certificate representing such number of unexercised Options.
The Company may deem and treat the registered holder(s) hereof as the
absolute owner(s) of this Option Certificate (notwithstanding any notation of
ownership or other writing hereon made by anyone), for the purpose of any
exercise hereof, and of any distribution to the holder(s) hereof, and for all
other purposes, and the Company shall not be affected by any notice to the
contrary.
All terms used in this Option Certificate which are defined in the Option
Agreement shall have the meaning assigned to them in the Option Agreement.
IN WITNESS WHEREOF, the Company has caused this Option Certificate to be
duly executed under its corporate seal.
Dated: November 1, 1996 AQUAGENIX, INC.
----------------
[SEAL] By: /s/ Xxxxxx Xxxxxxx
-----------------------------------
Name: Xxxxxx Xxxxxxx
Title: Chairman of the Board
21
