STOCK OPTION AGREEMENT
AGREEMENT, dated September 13, 1996 but effective as of August 2nd, 1995,
by and between Biocoral Inc., 00-000 Xxxxxxx 000, Xxxxx 000, Xxxxxx Xxxxx,
Xxxxxxxxxx 00000, U.S.A., a Delaware corporation with its principal place of
business at N.Y. (the "Company") and each of Halford Finance S.A., Road Town,
Pasea Estate, P. O. Box 3149, Tortola, B.V.I. and Cornington International Inc.,
both British Virgin Islands corporations with their principal places of business
at Road Town, Pasea Estate, P.O. Box 3149, Tortola B.V.I., (individually, an
"Optionee" and collectively, the ("Optionees").
WITNESSETH
WHEREAS, pursuant to an agreement, dated as of August 2, 1995
("Agreement") the Company agreed to grant to each Optionee certain options to
purchase shares of its common stock, par value USD 0,001 per share, as
additional consideration for the acquisition by the Company of 3H Human Health
Hightech Ltd., an Irish corporation ("3H"), and
WHEREAS, the Company previously adopted a stock option plan (the "Plan")
pursuant to which it was to issue certain stock options under certain
circumstances; and
WHEREAS, the Company is desirous of issuing an option to the Optionees as
agreed in the Agreement;
NOW, THEREFORE, in consideration of the mutual covenants contained herein,
the parties hereto agree as follows:
1. Grant of Option. Subject to all the terms and conditions hereof, the
Company hereby grants to Optionees the right to purchase all or any part
of an aggregate of that number of shares of Common Stock of the Company
(the "Option Shares"), at an exercise price of USD 8.00 per share, as are
calculated as follows: at the close of each fiscal year of 3H's, and by
the end of following quarter, a calculation shall be done of 3H's "Net
Profit", as herein defined, on an unconsolidated basis, by the accountants
regularly engaged to audit 3H or the Company, or such other accountant as
shall be agreed upon by the Company, 3H and the Optionees. For purposes of
this Agreement, the term "Net Profit" shall mean the net profits of 3H on
an unconsolidated basis, after making provision for the payment of all
operating expenses including all taxes thereon, as long as these expenses
and taxes are related to the business conducted with Inoteb S.A./Biocoral
Inc. In addition to the above definition of "Net Profit", it should be
noted that the "Net Profit", for the purpose of this agreement, may only
be derived from the business that 3H will conduct with Inoteb S.A.
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business, which include the present applications of their products
(osteoporosis, autologue glue, coral + growth factor), as well as all and
any future applications of the same products, as mentioned in the agent
agreement between Inoteb S.A. and 3H on May 13, 1995.
The calculation of "Net Profit" excludes the other activities which may,
from time to time, be conducted by 3H or Biocoral Inc. The number of
Option Shares shall be that number of whole shares obtained by subtracting
USD 2,000,000 from the "Net Profit" to obtain a "Remainder" multiplying
the Remainder by a fraction, the numerator of which is 150,000 times the
"Remainder", and the denominator of which is 1,000,000. By way of
illustration, if 3H's Net Profits in a given year are USD 3,000,000 then
the number of shares subject to this option shall be USD 3,000,000 - USD
2,000,000 = USD 1,000,000; 1,000,000 x 150,000/1,000,000 = 150,000. All
Option Shares issuable pursuant hereto shall be on a cummulative basis.
The Optionees shall determine the allocation of Option Shares as between
themselves.
2. Exercise of Option. The Option Shares subject to the Option shall become
purchasable beginning at the date of calculation of that year's number of
Option Shares and at any time thereafter until 730 days (2 years)
thereafter (the "Expiration Date"). This Option and all the rights
hereunder shall expire on an Expiration Date and any Option Shares not
purchased on or before the "Expiration Date" may not thereafter be
purchased hereunder. In the event Optionees fail to exercise the Option
granted hereunder, Optionees shall have no rights with respect to the
Option or the Option Shares for the concerned year, without affecting
Optionees rights to receive further options hereunder for the next year
and all years after without any time limit. This Agreement will be valid
and shall remain in force as long as Inoteb S.A./Biocoral Inc. will
produce Biocoral products as mentioned at Clause 1 and 5, or remain in
activity.
3. Consideration for Grant of Option. The consideration for grant of the
Option is USD 10 and other good and valuable consideration, the receipt
and sufficiency of which is hereby acknowledged.
4. Method of Exercise of Option: Payment of Option Shares Purchase Price.
This Option shall be exercisable at any time after Option Shares are
issuable pursuant to paragraph 1 hereof from time to time, prior to the
Expiration Date, by written notice (the "Notice") to the Company at its
principal office, which Notice shall be received by the Company at least
20 days prior to payment of the full purchase price for the Option Shares.
The Notice shall state the Optionee's election to exercise this Option and
the number of Option Shares in respect of which it is being exercised.
Upon payment of the full purchase price of the Option Shares by Optionee,
the Company shall deliver a certificate or certificates representing those
shares. A certificate or certificates for the shares as to which this
Option shall have been so exercised shall be registered in the name of
such Optionee(s) and shall be delivered to such Optionee(s)
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at the address of such Optionee(s) specified in the Notice or at such
other address as such Optionee(s) shall set forth in its Notice.
5. If Biocoral Inc. decides to sell, liquidate, merge 3H or transfer 3H's
rights concerning the Biocoral products as above defined to another person
or entity or if Biocoral Inc. takes any decision concerning 3H that can
affect the rights of Optionees under this Agreement, or if 3H takes any
decision that can affect the right of Optionees under this agreement,
Optionees or their assignees will keep the same benefit directly from
Biocoral Inc. and the Company commits itself to obtain similar rights for
Optionees from any other corporation or person to which 3H's rights would
have been transferred.
6. Non-Assignability of Option. This Option may be exercised only by each
Optionee and shall not be sold, transferred, assigned, pledged,
hypothecated or otherwise disposed of in any way, (whether by operation of
law or otherwise), except that each Optionee may sell, transfer or assign
all its interest in this Agreement to a third party controlling ,
controlled by or under common control with Optionees but only after giving
the Company at least thirty days notice in writing of the proposed sale,
transfer or assignment and in case of assignment as mentioned at clause l,
last sentence, and clause 7. Any buyer, transferee, or assignee of this
Option shall be bound by and subject to each and every provision of this
Agreement and shall not sell, transfer, assign, pledge, hypothecate or
otherwise dispose of the Option in anyway (whether by operation of law or
otherwise).
7. Adjustments to Preserve Option Benefits. If the outstanding shares of the
Company's Common Stock are exchanged for a different number or kind of
shares or securities of the Company through stock splits, reverse stock
splits, stock dividends, recapitalization, or any other changes in the
stock of the Company, an appropriate and proportionate adjustment shall be
made in the number and kind of shares issued upon any subsequent exercise
of this Option. Nothing in this Agreement shall preclude the Corporation
from issuing additional shares of Common Stock to any third party.
8. Limitation of Optionee's Rights. Notwithstanding anything in this
Agreement to the contrary, neither Optionee shall have any of the rights
or privileges of a shareholder of the Company in respect of any Option
Shares issuable upon exercise of this Option unless and until those shares
have been paid for in full.
9. Purchase for Investment. Each Optionee represents, warrants and agrees
that if such Optionee exercises this Option in whole or in part then those
Option Shares will be acquired for such Optionee's own account for the
purpose of investment and not with a view to their resale, distribution or
fractionalization. Upon each exercise of this Option, each Optionee will
furnish to the Company a written statement to that effect, satisfactory in
form and
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substance to the Company and its councel. Each Optionee understands and
acknowledges that the shares to be acquired pursuant to this Option will
be "Restricted Securities", as such term is defined under the Securities
Act of 1933, as amended, (the "Act") and accordingly will bear the
following legend:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE BEEN ACQUIRED
FOR INVESTMENT AND HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "STATE ACT"), OR ANY STATE SECURITIES, BLUE
SKY LAW OR REGULATION (THE "STATE ACT"). THESE SECURITIES MAY NOT BE
OFFERED FOR SALE, SOLD HYPOTHECATED OR OTHERWISE TRANSFERRED UNLESS
THEY HAVE FIRST BEEN REGISTERED UNDER THE ACT AND UNDER ANY
APPLICABLE STATE ACT OR UNLESS COUNSEL HAS GIVEN AN OPINION
SATISFACTORY TO THE CORPORATION THAT SUCH REGISTRATION IS NOT
REQUIRED.
10. Other Representations and Warranties of Optionees. As a condition to
receipt of the Option and for other good and valuable consideration,
receipt of which is hereby acknowledge, each Optionee, jointly and
severally, represents and warrants to the Company as follows:
(i) Optionee acknowledges that the Company is a development stage
company with no operating history and that there are significant
risks associated with the Company's business. Accordingly, the value
of the Option and the Option Shares will be based upon the Company's
development of its business which is subject to significant risks;
and
(ii) Optionee understands that the Option and the Option Shares (issuable
upon exercise of the Option) are being offered and sold under an
exemption from registration provided by Section 4 of the Act and the
regulations promulgated thereunder, as well as applicable State law
exemptions, and warrants and represents that the Option and the
Option Shares are being or will be (in the case of the Option
Shares) acquired by each Optionee solely for the Optionee's own
account, for investment purposes only, and are not being purchased
with the intent or view to resell the Option or the Option Shares or
for the resale, distribution, subdivision or fractionalization
thereof. Consequently, the undersigned must bear the economic risk
of the investment for an indefinite period of time because the
Option and the Option Shares cannot be resold or otherwise
transferred unless registered under the Act and qualified under
applicable State law or an opinion of qualified counsel that
indicates an exemption from registration and/or qualification is
available.
12. Notices. Any notices to be given under the terms of this Option shall be
in writing and addressed to the Company and to the Optionees at their
respective addresses first above provided herein, or at such other address
as either party may hereafter designate in writing
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to the other. Any notice or other communication given hereunder shall have
been deemed duly given when enclosed in a properly sealed envelope
addressed as aforesaid, registered or certified, and deposited postage
prepaid in a post office or branch post office regularly maintained by the
United States Government, or, in person, when so delivered.
13. Governing Law. This agreement shall be deemed to be made under and shall
be construed in accordance with the laws of the State of Delaware and
applicable Federal law without regard to conflict of law principles.
14. Successors and Assigns. This Agreement shall be binding upon and inure to
the benefit of the parties hereto and their legal successors and assigns.
15. Entire Understanding. This Agreement constitutes the entire understanding
of the parties and shall not be amended except by written agreement
between the parties.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
day and year first above written.
OPTIONEES:
CORNINGTON INTERNATIONAL, INC.
By:_____________________________________
HALFORD FINANCE S.A.
By:_____________________________________
OPTIONOR:
BIOCORAL, INC.
By: _____________________________________
