OPTION AGREEMENT
This Agreement is entered into this 26th day of November, 2002, by and
between GelStat Corporation, a Minnesota corporation ("GelStat"), Xxxxxxx
Xxxxxxx, a Minnesota resident, Xxxxx Xxxxxxx and Xxxxxxx Xxxxxxxx, each a
Wisconsin resident (Xxxxxxx, Xxxxxxx and Xxxxxxxx are referred to herein as
"Shareholders"), Developed Technology Resource, Inc., a Minnesota corporation
("DTR") and NP Acquisition Corp., a Minnesota corporation ("NP Acquisition").
RECITALS
A. GelStat and Shareholders have executed and delivered to DTR and NP
Acquisition, an Agreement and Plan of Merger in the form attached hereto as
Exhibit A (the "Merger Agreement"), which provides for the merger (the "Merger")
of NP Acquisition into GelStat.
B. Prior to the date hereof, DTR loaned GelStat $100,000, and upon the
execution of this Option Agreement loaned GelStat an additional $200,000, all of
which is due December 31, 2003. The $300,000 of indebtedness is referred to
hereunder as the "Loan."
C. GelStat has provided DTR with unaudited financial statements as of,
and for the period from inception through October 31, 2002.
D. DTR and NP Acquisition are desirous of having an option to execute
and deliver the Merger Agreement during the period specified hereunder.
E. In further consideration of the Loan and the exercise of this Option
Agreement, GelStat has issued a warrant to DTR to purchase 400,000 shares of the
common stock of GelStat at a price of $0.75 per share exercisable over a period
of three years following the (i) termination of the Option Period (as defined
below) if the Option is not exercised, or (ii) termination of the Merger
Agreement by DTR as permitted in Section 9.1 of the Merger Agreement.
AGREEMENTS
NOW, THEREFORE, in consideration of the premises and the mutual
covenants contained herein, the parties hereto agree as follows:
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1. OPTION. At any time during the Option Period as defined herein, DTR and
NP Acquisition shall have the option (the "Option") to become parties to the
Merger Agreement.
2. OPTION PERIOD. The Option Period shall commence on the date hereof and
will terminate the later of 5:00 p.m. on December 16, 2002, or the third (3rd)
business day following the date that GelStat and the Shareholders have provided
to DTR, or caused to be provided to DTR (i) the results of an independent
clinical trial involving a study of the efficacy of GelStat's migraine relief
product called "GelStat Migraine" (the "Independent Study") conducted by J & S
Studies, Inc., Bryan, Texas, which results consist of the response of not less
than 20 subjects having received placebo medication AND not less than 20
subjects having received active medication (the "Minimum Results"), provided
however that GelStat may, at any time after December 16, 2002, at its sole
discretion and by notice to DTR, elect to designate such lesser number of active
medication results and placebo medication results then available as sufficient
(the "Alternative Minimum Results") in which case the presentment of the
Alternative Minimum Results to DTR shall be of the same effect as if the Minimum
Results had been provided, provided however that (a) results of active
medication subjects at that time consist of enough positive responders that,
even if all active medication recipients remaining between the number of results
then in hand and twenty (20) were presumed to be negative responders, the
percentage of positive responders would still be 50% or greater, and (b) the
placebo response rate is not greater than 34% for those placebo receiving
subjects whose results are then in hand, and (ii) any changes to the schedules
to, or warranties and representations in Article III of the Merger Agreement.
The parties hereto acknowledge that J & S Studies is blinded in the Independent
Study, and thus able to provide only the results of individual subjects and
that, not knowing whether any such subject received active or placebo
medication, will not be able to draw any conclusion regarding the relative
efficacy or lack thereof of the study medication, including even a compilation
or summary of results. J & S Studies has agreed to provide the raw data to
GelStat as it is collected. GelStat will provide for DTR's inspection the
original data as provided by J & S Studies or, at DTR's sole discretion, will
cause J & S Studies to transmit such raw data directly to a designated
representative of DTR. In addition, GelStat will prepare a written summary of
the entire results and findings of the Independent Study as available at the
attainment of the Minimum Results or Alternative Minimum Results, as the case
may be, which summary will be prepared as a good faith, best efforts
compilation. Notwithstanding any such compilation, the parties hereto
acknowledge that, as per the final protocol to be employed in the Independent
Study, a copy of which has previously been provided to DTR, the primary
efficacy/outcome measure of the study is headache relief after two (2) hours,
where headache relief is defined as a reduction in headache pain from moderate
or severe to mild or none. Any subject reporting a decrease in headache pain
after two hours from moderate or severe to mild or none is, for purposes of the
Independent Study and this Agreement, a positive responder. Any subject not
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experiencing headache relief as defined is a negative responder. GelStat shall
also provide DTR with the results of any other studies conducted by or for
GelStat involving the same subject matter, on or before the conclusion of the
Option Period as herein defined, which results shall include without limitation
any informal or ad hoc studies conducted by GelStat, including any anecdotal
information, consumer feedback and `testimonials' received. The parties hereto
agree and understand that there is no minimum performance required of the
product under study as a prerequisite to effect the merger, neither is there any
performance under which DTR will be compelled to effect the merger, neither is
any performance of the product under study in any way warranted by GelStat or
the Shareholders, but rather the Independent Study is a good faith, mutual
effort on the part of all the parties hereto to assess the likely performance of
the product under study and evaluate the likely potential economic opportunity
represented by the product under study.
3. METHOD OF EXERCISE. In order to exercise the Option granted hereunder,
DTR and NP Acquisition will, together, execute the Merger Agreement within the
Option Period, date the Merger Agreement upon execution, and attach the
schedules provided to GelStat as set forth in paragraph 2 above, and within the
Option Period, or within three business days after execution, whichever occurs
earlier, deliver the executed and dated Merger Agreement and a notice of
exercise of the Option to GelStat. Upon such execution and delivery, the Merger
Agreement shall become fully binding upon all parties thereto.
4. ADDITIONAL WORKING CAPITAL. DTR agrees to provide to GelStat, in a
timely manner, whatever additional working capital is required by GelStat in
GelStat's sole, good faith estimation, up to as much as $400,000 between the
time, if any, that DTR and NP Acquisition execute the Merger Agreement and the
time of Closing as set forth in Section 1.4 of the Merger Agreement. This
additional working capital shall be provided as a loan, under the same terms and
conditions as the Loan previously executed.
5. PUBLIC ANNOUNCEMENTS. Each of the parties hereto agree that all press
releases and other announcements, whether written or oral, to be made by any of
them with respect to the Merger or Option shall be subject to mutual agreement
and consent prior to the dissemination thereof; provided, however, either party
may make any announcements required by applicable law or NASDAQ Stock Market
rules so long as the party so required notifies the other party promptly upon
hearing such requirement and in good faith attempts to comply with this Section.
6. ACCESS TO INFORMATION. From the date hereof until the exercise of the
Option, DTR, Merger Subsidiary and GelStat will give the other party (for
purposes of this Section 5, the "requesting party) and the requesting party's
counsel, financial advisers, auditors and other authorized representatives full
access, during normal business
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hours and upon reasonable notice, to its offices, properties, books and records,
will furnish to the requesting party and the requesting party's counsel,
financial advisors, auditors and other authorized representatives such financial
and operating data and other information as such persons may reasonably request
and will instruct its employees, counsel and financial advisors to cooperate
with the requesting party in the requesting party's investigation of the
business of the other party, provided that no investigation pursuant to this
Section shall affect any written representation or warranty given by any party
hereto to any other party hereto and provided that any cost directly
attributable to such access to information be paid by the requesting party.
7. NOTICES OF CERTAIN EVENTS. Each party hereto shall promptly notify the
other of:
a. Any material notice or other communication from any person alleging that
the consent of such person is or may be required in connection with the
transactions contemplated by this Agreement or the Merger Agreement.
b. Any material notice or other communication to or from any governmental
or regulatory authority in connection with the transactions contemplated by
this Agreement or the Merger Agreement; and
c. Any actions, suits, claims, investigations or proceedings commenced or,
to the best of its knowledge threatened against, relating to or involving
or otherwise affecting such party which, if pending on the date of this
Agreement, would have been required to have been disclosed pursuant to
Section 2.8 or Section 3.9 of the Merger Agreement as appropriate, or which
relate to the consummation of the transactions contemplated by the Merger
Agreement.
8. CONDUCT OF BUSINESS UNTIL CLOSING. Except as GelStat and DTR may
otherwise consent to or approve in writing on and after the date hereof and
prior to the Closing Date as defined in the Merger Agreement, GelStat, the
Shareholders, DTR and Merger Subsidiary each agrees:
a. Not to enter into or authorize any agent to enter into discussions
relating to a merger, stock exchange or the sale of all or substantially
all of the stock or assets of GelStat, DTR or Merger Subsidiary, or
b. To conduct and cause the conduct of, the business, operations,
activities and practices of GelStat, DTR and Merger Subsidiary, only in the
usual, regular and ordinary manner and, to the extent consistent with such
business, operations, activities and practices, to use its or his best
efforts to preserve their respective business organization and existing
business relationships and prospects; and
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c. Not to enter into any transaction nor perform any act, or to cause or
permit another to perform any act, which would result in any of the
representations and warranties of the parties, as amended, contained in the
Merger Agreement not being true and correct in all material respects at and
as of the date of the Merger Agreement.
9. WARRANTIES AND REPRESENTATIONS. GelStat and Shareholders warrant and
represent that the warranties and representations set forth in Article III of
the Merger Agreement are true and correct to the best of their knowledge as of
the date of this Agreement.
10. EXPENSES. Each party shall pay all of its costs and expenses (including
attorneys', accountants' and investment bankers' fees, legal costs and expenses)
incurred in connection with this Agreement and the consummation of the
transactions contemplated hereby.
11. NOTICES. To be effective, all notices or other communications required
or permitted hereunder shall be in writing. A written notice, or other
communication shall be deemed to have been given hereunder (i) if delivered by
hand, when the notifying party delivers such notice or other communication to
all other parties to this Agreement, (ii) if delivered by overnight delivery
service, on the second business day following the date such notice or other
communication is timely delivered to the overnight courier, (iii) if delivered
by telecopier or e-mail, on the first business day following the date such
notice or communication is transmitted, or (iv) if delivered by mail, on the
fourth business day following the date such notice or other communication is
deposited in the U.S. mail by certified or registered mail addressed to the
other party, whichever occurs earlier. The determination of a "business day"
shall be made at the location of the recipient of the notice or other
communication. Mailed, telecopied or e-mailed communications shall be directed
as follows unless written notice of a change of address or telecopier number has
been given in writing in accordance with this Section:
If to DTR or Merger Subsidiary: Developed Technology Resource, Inc.
000 Xxxx Xxxxxxx Xxxxx
Xxxxx, XX 00000
Facsimile No: (000) 000-0000
E-mail address: XxXxxXXX@xxxxxxxxxx.xxx
and: Xxxxx Xxxxxxxxxx
000 Xxxxxxxxx Xxxxx
Xxxxxxx, XX 00000
Facsimile No: (000) 000-0000
E-mail address: xxxxxxxxxxx@xxxxxxxxxx.xxx
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With a copy to: Felhaber, Larson, Xxxxxx & Xxxx, P.A.
000 Xxxxxx Xxxxxx Xxxxx, Xxxxx 0000
Xxxxxxxxxxx, XX 00000-0000
Attention: Xxxxx X. Xxxxxxxx
Facsimile No: (000) 000-0000
E-mail address: xxxxxxxxx@xxxxxxxx.xxx
If to GelStat or Shareholders: GelStat Corporation
0000 Xxxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attention: Dr. Xxxxxxx Xxxxxxx
Facsimile No: (000) 000-0000
E-mail address: xxxxxxxxxxxxxx@xxxxxxx.xxx
With a copy to: Xxxx & Xxxxxxx, P.A.
00 Xxxxx Xxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxxxx, XX 00000
Attention: Xxxxx X. Xxxxxxxxx
Facsimile No: (000) 000-0000
E-mail address: xxxxxxxxxx@xxxx-xxxxxxx.xxx
12. ARBITRATION. All disputes or claims arising out of or in any way
relating to this Agreement shall be submitted to and determined by final and
binding arbitration. Arbitration proceedings may be initiated by any party to
this Agreement upon notice to the other party and to the American Arbitration
Association, and shall be conducted by three arbitrators under the rules of the
American Arbitration Association in Minneapolis, Minnesota; provided, however,
that the parties may agree following the giving of such notice to have the
arbitration proceedings conducted with a single arbitrator. The notice must
specify in general the issues to be resolved in any such arbitration proceeding.
The arbitrators shall be selected by agreement of the parties to the arbitration
proceeding from a list of five or more arbitrators proposed to the parties by
the American Arbitration Association or may be persons not on such list as
agreed to by the parties to such arbitration. If the parties to the arbitration
proceeding fail to agree on one or more of the persons to serve as arbitrators
within fifteen days after delivery to each party hereto of the list as proposed
by the American Arbitration Association, then at the request of any party to
such proceeding, such arbitrators shall be selected at the discretion of the
American Arbitration Association. Where the arbitrators shall determine that an
arbitration proceeding was commenced by a party frivolously or without a basis
or primarily for the purpose of harassment of delay, the arbitrators may assess
such party the cost of such proceedings including reasonable attorneys' fees of
any other party. In all other cases,
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each party to the arbitration proceeding shall bear its own costs and its
pro-rata share of the fees and expenses charged by the arbitrators and the
American Arbitration Association in connection with any arbitration proceeding.
Any award or equitable relief granted by the arbitrators may be enforced in
accordance with the provisions of Minnesota law. Notwithstanding the foregoing,
nothing herein will prevent a party from seeking and obtaining equitable relief
from a court of competent jurisdiction pending a final decision of the
arbitrators and the proper filing of such decision with such court.
13. ENTIRE AGREEMENT. This Agreement contains the entire agreement between
the parties with respect to the transactions contemplated hereby, and supersedes
all written or oral negotiations, representations, warranties, commitments,
offers, bids, bid solicitations, and other understandings prior to the date
hereof.
14. ASSIGNABILITY. This Agreement shall be binding upon and inure to the
benefit of the heirs, personal representatives, successors and assigns of the
parties hereto; provided that, except as otherwise provided for herein, neither
this Agreement nor any right hereunder shall be assignable by any party hereto,
without the prior written consent of the other party.
15. LEGAL REPRESENTATION. Each party to this Agreement acknowledges his or
its right to, and his or its opportunity and the advisability of, obtaining
independent legal counsel in connection with the execution of this Agreement.
16. CAPTIONS. The captions of the various Articles and Sections of this
Agreement have been inserted only for convenience of reference, and shall not be
deemed to modify, explain, enlarge or restrict any provision of this Agreement
or affect the construction hereof.
17. GOVERNING LAW. The validity, interpretation and effect of this
Agreement shall be governed exclusively by the laws of the state of Minnesota,
without giving effect to the conflict of laws provision thereof.
18. COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute a single agreements.
19. REMEDIES CUMULATIVE. Except as otherwise expressly limited herein, the
rights, powers and remedies given to any party by this Agreement shall be in
addition to all rights, powers and remedies given to that party by any statute
or rule of law. Any forbearance or failure to delay in exercising any right,
power or remedy hereunder shall not be deemed to be a waiver of such right,
power or remedy, and any single or partial exercise of any right, power or
remedy shall not preclude the further exercise thereof or be deemed to be a
waiver of any other right, power or remedy.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on
the day and year first above written.
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GELSTAT CORPORATION DEVELOPED TECHNOLOGY
RESOURCE, INC.
By: /s/ Xxxxxxx Xxxxxxx By: /s/ Xxxx Xxxx
--------------------------------- ------------------------------------
NP ACQUISITION CORP.
By: /s/ Xxxx Xxxx
----------------------------------
SHAREHOLDERS:
/s/ Xxxxxxx Xxxxxxx
-------------------------------------
Xxxxxxx Xxxxxxx
/s/ Xxxxxxx Xxxxxxxx
-------------------------------------
Xxxxxxx Xxxxxxxx
/s/ Xxxxx Xxxxxxx
-------------------------------------
Xxxxx Xxxxxxx
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