EXHIBIT 10.4
OPTION AGREEMENT
THIS OPTION AGREEMENT (this "Agreement"), dated as of February 17, 2006,
between QuantRx Biomedical Corporation, a Nevada corporation (the "Investor")
and FluoroPharma, Inc., a Delaware corporation (the "Company"). Capitalized
terms appearing herein but not defined herein have the meanings ascribed to such
terms in the Investment Agreement, dated as of February 17, 2006, between the
Investor and the Company (the "Investment Agreement").
WITNESSETH
In consideration of the premises and their mutual covenants contained in
this Agreement, the parties hereto agree as follows:
1. Grant of Option. On the terms and subject to the conditions of
this Agreement, the Company hereby grants to the Investor an option (the
"Option") to purchase 230,000 shares (the "Option Shares") of the Company's
common stock, par value $0.001 (the "Common Stock") at an exercise price of
$0.75 per Option Share, subject to adjustment as set forth in Section 9 (the
"Exercise Price").
2. Vesting. Subject to the provisions of the following sentence, the
Option shall vest upon the earliest to occur of (i) the Company obtains
Additional Financing from any Person other than the Investor in accordance with
the Investment Agreement, (ii) any Phase I Trial fails to be Successfully
Completed, (iii) the Investor invests an aggregate of at least $2,750,000 in the
Company in accordance with the Investment Agreement or (iv) there is a change of
control in the Company through a QPO (the "Vesting Date").
3. Exercisibility of the Option. The Investor may exercise the
Option, in whole or in part, at any time and from time to time, during the
period (the "Exercise Period") commencing on the Vesting Date and expiring seven
years from such date (the "Expiration Date"). If the Investor notifies the
Company that it disputes (a "Dispute") the Company's calculation of any
adjustment to the (i) Exercise Price or (ii) number of Option Shares to be
issued to the Investor, the parties shall negotiate in good faith to resolve the
Dispute. If the Expiration Date arrives and the Dispute has not been resolved,
the Expiration Date shall be automatically extended until the date that is 30
days after resolution of the Dispute.
4. Method of Exercise of the Option. (a) The Option shall be
exercisable by the Investor's delivery to the Company of a written notice
stating the number of Option Shares to be purchased pursuant to this Agreement
and accompanied by payment for the aggregate Exercise Price of the Option Shares
to be purchased. No fractional Option Shares shall be issued upon any exercise
of the Option; however, the number of Option Shares issued upon any exercise of
the Option shall be rounded up or down to the nearest whole number.
(b) The Investor shall pay the Exercise Price in cash or by certified
check or bank draft, payable to the order of the Company.
(c) Upon receipt of the Exercise Price, the Company shall promptly
deliver to the Investor stock certificates representing the number of Option
Shares purchased by the Investor.
5. Transferability of Option. The Option may only be transferred by
the Investor to any Affiliate of the Company or any purchaser of substantially
all of the assets of the Investor, as long as such transfer is done in
compliance with federal and state securities laws.
6. Rights as a Stockholder. The Investor or any transferee of the
Option shall have no rights as a stockholder with respect to any Option Shares
until the date of the issuance of a stock certificate to such individual for
such Option Shares. No adjustment shall be made for dividends (ordinary or
extraordinary, whether in cash, securities or other property) or distribution of
other rights for which the record date is prior to the date a stock certificate
is issued.
7. Payment of Transfer Taxes, Fees and Other Expenses. The Company
agrees to pay any and all original issue taxes and stock transfer taxes that may
be imposed on the issuance of Option Shares, together with any and all other
fees and expenses necessarily incurred by the Company in connection therewith.
8. Issuances of Common Stock below Exercise Price. The Company shall
not issue any (i) shares of its Common Stock, or (ii) any securities convertible
into or exercisable for shares of Common Stock having an exercise or conversion
price per share, that is less than the Exercise Price (a "Dilutive Issuance"),
without the written consent of the Investor. The provisions set forth in Section
9 below shall apply to any Dilutive Issuance (including a Dilutive Issuance to
which the Company has obtained the Investor's consent except for stock, options
or other equity interests issued to employees, directors, consultants or
advisors, or stock used by the Company to make a strategic acquisition as set
forth in Section 2.11 of the Investment Agreement) and all other issuances,
sales, subdivisions and combinations, reclassifications and other transactions
described therein.
9. Adjustment of Purchase Price and Number of Shares of Common Stock
Deliverable. (a) (i) Except as hereinafter provided, in the event the Company
shall, at any time or from time to time after the date hereof, sell any shares
of Common Stock for a consideration per share less than the Exercise Price in
effect on the date of such sale, or issue any shares of Common Stock as a stock
dividend to the holders of capital stock, or subdivide or combine the
outstanding shares of Common Stock into a greater or lesser number of shares
(any such sale, issuance, subdivision or combination being herein called a
"Change of Shares"), then, and thereafter immediately before the date of such
sale or the record date for each Change of Shares, the Exercise Price for the
Option (whether or not the same shall be issued and outstanding) in effect
immediately prior to such Change of Shares shall be changed to a price (any
applicable fraction of a cent being rounded to the nearest whole cent)
determined by dividing (1) an amount equal to the sum of (x) the total number of
shares of Common Stock outstanding immediately prior to the issuance or sale of
such shares, multiplied by the Exercise Price in effect immediately prior to
such issuance or sale and (y) the aggregate of the amount of all consideration,
if any, received by the Company upon such issuance or sale, by (2) the total
number of shares of Common Stock outstanding immediately after such issuance or
sale; provided, however, that in no event shall the Exercise Price be adjusted
pursuant to this computation to an amount in excess of the Exercise Price in
effect immediately prior to such computation, except in the case of a
combination of outstanding shares of Common Stock.
(ii) For the purpose of any adjustment to be made in
accordance with this Section 9(a) the following provisions shall be applicable:
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(A) In case of the issuance or sale of shares of Common Stock
(or other securities deemed hereunder to involve the issuance or sale of
shares of Common Stock) for a consideration part or all of which shall
be cash, the amount of the cash portion of the consideration therefor
deemed to have been received by the Company shall be (I) the
subscription price (before deducting any commissions or any expenses
incurred in connection therewith), if shares of Common Stock are offered
by the Company for subscription, or (II) the gross amount of cash
actually received by the Company for such securities, in any other case.
(B) In case of the issuance or sale (otherwise than as a
dividend or other distribution on any stock of the Company, and
otherwise than on the exercise of options, rights or warrants or the
conversion or exchange of convertible or exchangeable securities) of
shares of Common Stock (or of other securities deemed hereunder to
involve the issuance or sale of shares of Common Stock) for a
consideration part or all of which shall be other than cash, the amount
of the consideration therefore other than cash deemed to have been
received by the Company shall be the value of such consideration as
determined in good faith by the Board of Directors of the Company (the
"Board") on the basis of a record of values of similar property
or services.
(C) Shares of Common Stock issuable by way of dividend or
other distribution on any stock of the Company shall be deemed to have
been issued immediately after the opening of business on the day
following the record date of the determination of stockholders entitled
to receive such dividend or other distribution and shall be deemed to
have been issued without consideration.
(D) The reclassification of securities of the Company other
than shares of Common Stock into securities including shares of Common
Stock shall be determined to involve the issuance of such shares of
Common Stock for a consideration other than cash immediately prior to
the close of business on the date fixed for the determination of
security holders entitled to receive such shares, and the value of the
consideration allocable to such shares of Common Stock shall be
determined as provided in subsection (B) of this Section 9(a)(ii).
(E) The number of shares of Common Stock at any one time
outstanding shall be deemed to include the aggregate maximum number of
shares issuable (subject to readjustment upon the actual issuance
thereof) upon the exercise of options, rights or warrants and upon the
conversion or exchange of convertible or exchangeable securities.
(b) Except as otherwise provided herein, in case the Company shall at
any time after the date hereof (1) issue options, rights or warrants to
subscribe for shares of Common Stock or to subscribe for any securities
convertible into or exchangeable for shares of Common Stock ("Convertible
Securities"), or (2) issue any Convertible Securities, for a consideration per
share (determined as provided in Section 9(a) and as provided below) less than
the Exercise Price in effect immediately prior to the issuance of such options,
rights or warrants, or the issuance of such Convertible Securities, or without
consideration (including the issuance of any such securities by way of dividend
or other distribution), the Exercise Price for the Option in effect immediately
prior to the issuance of such options, rights or warrants, or such Convertible
Securities, as the case may be, shall be reduced to a price determined by making
the computation in accordance with the provisions of Section 9(a) hereof;
provided that:
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(A) The aggregate maximum number of shares of Common Stock
issuable or that may become issuable under such options, rights or
warrants (assuming exercise in full even if not then currently
exercisable or currently exercisable in full and assuming, in the case
of options, rights or warrants exercisable for Convertible Securities,
the full conversion or exchange, as the case may be, of all such
Convertible Securities) shall be deemed to be issued and outstanding at
the time such options, rights or warrants were issued, for a
consideration equal to the sum of (1) the consideration, if any,
received by the Company for such option, rights or warrants, (2) the
minimum consideration receivable by the Company upon the exercise of
such options, rights or warrants, and (3) in the case of options, rights
or warrants exercisable for Convertible Securities, the minimum
consideration, if any, receivable by the Company upon the conversion or
exchange of Convertible Securities (such minimum consideration to be
computed at the time of the issuance of such options, rights or warrants
as if all Convertible Securities issuable upon exercise of such options,
rights or warrants were then issued and converted or exchanged, as the
case may be, into shares of Common Stock); provided, however, that upon
the expiration or other termination of such options, rights or warrants,
if any thereof shall not have been exercised, the number of shares of
Common Stock deemed to be issued and outstanding pursuant to this
subsection (A) (and for the purposes of subsection (E) of Section
9(a)(ii) hereof) shall be reduced by the number of shares as to which
options, warrants, and/or rights shall have expired, and such number of
shares shall no longer be deemed to be issued and outstanding, and the
Exercise Price then in effect shall forthwith be readjusted and
thereafter be the price that it would have been had adjustment been made
on the basis of the issuance only of the shares actually issued plus the
shares remaining issuable upon the exercise of those options, rights or
warrants as to which exercise rights shall not have expired or
terminated unexercised.
(B) The aggregate maximum number of shares of Common Stock
issuable or that may become issuable upon conversion or exchange of any
Convertible Securities issued by the Company (assuming conversion or
exchange in full even if not then currently convertible or exchangeable
in full) shall be deemed to be issued and outstanding at the time of
issuance of such Convertible Securities, for a consideration equal to
(y) the consideration received by the Company for such Convertible
Securities, plus (z) the minimum consideration, if any, receivable by
the Company upon the conversion or exchange thereof; provided, however,
that upon the expiration or other termination of the right to convert or
exchange such Convertible Securities (whether by reason of redemption or
otherwise), the number of shares of Common Stock deemed to be issued and
outstanding pursuant to this subsection (B) (and for purposes of
subsection (E) of Section 9(a)(ii) hereof) shall be reduced by the
number of shares as to which the conversion or exchange rights all have
expired or terminated unexercised, and such number of shares shall no
longer be deemed to be issued and outstanding, and the Exercise Price
then in effect shall forthwith be readjusted and thereafter be the price
that it would have been had adjustment been made on the basis of the
issuance only of the shares actually issued plus the shares remaining
issuable upon conversion or exchange of those Convertible Securities as
to which the conversion or exchange rights shall not have expired or
terminated unexercised. No adjustment will be made pursuant to this
subparagraph (B) upon the issuance by the Company of any Convertible
Securities pursuant to the exercise of any option, right or warrant
exercisable therefore, to the extent that adjustments in respect of such
options, rights or warrants were previously made pursuant to the
provisions of subparagraph (A) of this section 9(b).
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(C) If any change shall occur in the exercise price per share
provided for in any of the options, rights or warrants referred to in
subsection (A) of this Section 9(b), or in the price per share or ratio
at which the securities referred to in subsection (B) of this Section
9(b) are convertible or exchangeable, such options, rights or warrants
or conversion or exchange rights as the case may be, to the extent not
theretofore exercised, shall be deemed to have expired or terminated on
the date when such price change becomes effective in respect of shares
not theretofore issued pursuant to the exercise or conversion or
exchange thereof, and the Company shall be deemed to have issued upon
such date new options, rights or warrants or Convertible Securities.
(c) Upon each adjustment of the Exercise Price pursuant to this
Section 9, the number of Option Shares purchasable upon the exercise of the
Option shall be the number derived by multiplying the number of shares of Common
Stock purchasable immediately prior to such adjustment by the Exercise Price in
effect prior to such adjustment and dividing the product so obtained by the
applicable adjusted Exercise Price.
(d) In case of any reclassification or change of outstanding shares of
Common Stock issuable upon exercise of the Option (other than a change in par
value, or from 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 case of any consolidation or
merger of the Company with or into another corporation (other than a merger in
which the Company is the continuing corporation and which does not result in any
reclassification or change of the then outstanding shares of Common Stock or
other capital stock issuable upon exercise of the Option (other than a change in
par value, or from par value to no par value, or from no par value to par value
or as a result of subdivision or combination)) or in case of any sale or
conveyance to another corporation of all or substantially all of the assets or
property of the Company that is effected in such a way that holders of the
securities issuable upon exercise of the Option shall be entitled to receive
securities or other property with respect to or in exchange for the securities
issuable upon exercise of the Option, then, as a condition of such
reclassification, change, consolidation, merger, sale or conveyance, the
Company, or such successor or purchasing corporation, as the case may be, shall
make lawful and adequate provision whereby the registered holder(s) of the
Option then outstanding shall have the right thereafter to receive on exercise
of such Option the kind and amount of securities and property receivable upon
such reclassification, change, consolidation, merger, sale or conveyance, by a
holder of the number of securities issuable upon exercise of such Option
immediately prior to such reclassification, change, consolidation, merger, sale
or conveyance and shall forthwith file at the corporate office of the Company a
statement evidencing such provision. Such provisions shall include provision for
adjustments which shall be equivalent as may be practicable to the adjustments
provided for in Sections 9(a) and 9(b) hereof. The above provisions of this
Section 9(d) shall similarly apply to successive reclassifications and changes
of shares of Common Stock and to successive consolidations, mergers, sales or
conveyances.
(e) Irrespective of any adjustments or changes in the Exercise
Price or the number of shares of Common Stock purchasable upon exercise of the
Option, the Option certificates theretofore and thereafter issued shall, unless
the Company shall exercise its option to issue new Option certificates, continue
to express the Exercise Price per share and the number of shares purchasable
thereunder as the Exercise Price per share and the number of shares purchasable
thereunder were expressed in the Option certificates when the same were
originally issued.
(f) After each adjustment of the Exercise Price pursuant to this
Section 9, the Company will promptly prepare a certificate setting forth: (i)
the Exercise Price as so adjusted,
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(ii) the number of shares of Common Stock purchasable upon exercise of the
Option, after such adjustment, and (iii) a brief statement of the facts
accounting for such adjustment. The Company will promptly file such certificate
and cause a brief summary thereof to be sent by ordinary first class mail to the
Investor at his last address as it shall appear on the registry books of the
Company. No failure to mail such notice nor any defect therein or in the mailing
thereof shall affect the validity thereof except as to the holder to whom the
Company failed to mail such notice, or except as to the holder whose notice was
defective.
(g) The Investor shall not be entitled to cash dividends paid by the
Company prior to the exercise of the Option.
10. Covenants as to Option and Option Shares. The Company hereby
covenants and agrees as follows:
(a) The Option is, and any Option issued in substitution for or
replacement of the Option will upon issuance be, duly authorized and validly
issued.
(b) All Option Shares that may be issued upon the exercise of the
rights represented by the Option will, upon issuance, be validly issued, fully
paid and nonassessable and free from all taxes, liens and charges with respect
to the issue thereof.
(c) During the period within which the rights represented by the
Option may be exercised, the Company will at all times have authorized and
reserved at least 100% of the number of shares of Common Stock needed to provide
for the exercise of the rights then represented by the Option and the par value
of said shares will at all times be less than or equal to the applicable
Exercise Price. If at any time the Company does not have a sufficient number of
shares of Common Stock authorized and available, then the Company shall call and
hold a special meeting of its stockholders within 30 days of that time for the
sole purpose of increasing the number of authorized shares of Common Stock.
(d) The Company shall not, by amendment of its Certificate of
Incorporation or through any reorganization, transfer of assets, consolidation,
merger, dissolution, issue or sale of securities, or any other voluntary action,
avoid or seek to avoid the observance or performance of any of the terms to be
observed or performed by it hereunder, but will at all times in good faith
assist in the carrying out of all the provisions of the Option and in the taking
of all such action as may reasonably be requested by the holder of the Option in
order to protect the exercise privilege of the holder of the Option against
dilution or other impairment, consistent with the tenor and purpose of the
Option. The Company (i) shall not increase the par value of any shares of Common
Stock receivable upon the exercise of the Option above the Exercise Price then
in effect, and (ii) will take all such actions as may be necessary or
appropriate in order that the Company may validly and legally issue fully paid
and nonassessable shares of Common Stock upon the exercise of the Option.
(f) The Option shall be binding upon any entity succeeding to the
Company by merger, consolidation or acquisition of all or substantially all of
the Company's assets.
11. Notices. Any notice to be given under the terms of this Agreement
shall be in writing and addressed to the Company at:
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(a) if to the Company, at
FluoroPharma, Inc.
c/o Puretech Ventures, LLC
000 Xxxxxxx Xxxxxx Xxxxx 0000,
Xxxxxx, XX 00000
Attn: Xxxxx Xxxxxxx
Telephone: 000-000-0000
Telecopy: 000-000-0000
with a copy to:
Xxxxx and Xxxxxxxx LLP
000 Xxxxxx Xxxxxx
Xxxxxx, XX 00000
Attn: Xxxxx X. Xxxxxxxx
Telephone: 000-000-0000
Telecopy: 000-000-0000
(b) if to QuantRx, at
QuantRx Biomedical Corporation
QuantRx Biomedical Corporation
Xxxxx 000, 000
Xxxxxxxxxx Xxxx
Xxxxxx, Xxxxxxxxxxxx 00000
Attn: Xxxxxx Xxxxxxxxx, President and Chief Executive Officer
Telephone: 000-000-0000
Telecopy: 000-000-0000
with a copy to:
Xxxxxxx X. Xxxxxx,Esq.
Xxxxxxxxx Xxxxxxx, LLP
The MetLife Building
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
12. Effect of Agreement. Except as otherwise provided hereunder, this
Agreement shall be binding upon and shall inure to the benefit of any successor
or successors of the Company.
13. Laws Applicable to Construction. This Agreement shall be governed
by, and construed in accordance with, the laws of the State of New York. All
Actions arising out of or relating to this Agreement shall be heard and
determined exclusively in any New York federal court sitting in the Borough of
Manhattan of The City of New York; provided, however, that if such federal court
does not have jurisdiction over such Action, such Action shall be heard and
determined exclusively in any New York state court sitting in the Borough of
Manhattan of The City of New York. Consistent with the preceding sentence, the
parties hereto hereby (a) submit
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to the exclusive jurisdiction of any federal or state court sitting in the
Borough of Manhattan of The City of New York for the purpose of any Action
arising out of or relating to this Agreement brought by any party hereto and (b)
irrevocably waive, and agree not to assert by way of motion, defense, or
otherwise, in any such Action, any claim that it is not subject personally to
the jurisdiction of the above-named courts, that its property is exempt or
immune from attachment or execution, that the Action is brought in an
inconvenient forum, that the venue of the Action is improper, or that this
Agreement or the transactions contemplated by this Agreement may not be enforced
in or by any of the above-named courts.
14. Headings. The headings of paragraphs herein are included solely
for convenience of reference and shall not affect the meaning or interpretation
of any of the provisions of this Agreement.
15. Amendment. This Agreement may not be modified, amended or waived
in any manner except by an instrument in writing signed by both parties hereto.
The waiver by either party of compliance with any provision of this Agreement
shall not operate or be construed as a waiver of any other provision of this
Agreement, or of any subsequent breach by such party of a provision of this
Agreement.
16. Termination of Option Rights. This Agreement shall terminate
immediately if (i) the Investor fails to make the $500,000 payment in accordance
with Section 2.02 of the Investment Agreement or (ii) the Investment Agreement
is terminated by the Company in accordance with its terms.
17. WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO HEREBY WAIVES TO
THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW ANY RIGHT IT MAY HAVE TO A TRIAL
BY JURY WITH RESPECT TO ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF,
UNDER OR IN CONNECTION WITH THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED BY
THIS AGREEMENT. EACH OF THE PARTIES HERETO HEREBY (A) CERTIFIES THAT NO
REPRESENTATIVE, AGENT OR ATTORNEY OF THE OTHER PARTY HAS REPRESENTED, EXPRESSLY
OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK
TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT HAS BEEN INDUCED TO
ENTER INTO THIS AGREEMENT AND THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT,
AS APPLICABLE, BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN
THIS SECTION 17.
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IN WITNESS WHEREOF, the Company and the Investor have caused this
Agreement to be executed as of the date first written above by their respective
officers thereunto duly authorized.
QUANTRX BIOMEDICAL CORPORATION
By: /s/ Xxxxxx Xxxxxxxxx
--------------------------------------
Name: Xxxxxx Xxxxxxxxx
Title: Chief Executive Officer
FLUOROPHARMA, INC.
By: /s/ Xxxxx Xxxxxxx
--------------------------------------
Name:
Title:
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