Exhibit 10.2
Form 8-K
Viking Systems, Inc.
File No. 000-49636
VIKING SYSTEMS, INC.
STOCK OPTION AGREEMENT
This Agreement is entered into this 18th day of December 2003, by and
between Viking Systems, Inc., a Nevada corporation ("Corporation") and Donald E.
Tucker (" Tucker").
Recitals
Tucker has provided funds to the Corporation to be used to pay professional
fees related to various corporate filings and to pay for other corporate
expenses. In exchange for such funds, the Corporation issued Tucker 3,200,000
shares of its common stock at a price of $.02 per share.
The Corporation intends to acquire certain assets from Vista Medical
Technologies, Inc., pursuant to an Asset Purchase Agreement. The purchase price
for such assets includes a cash portion of up to $400,000 and the issuance of
approximately 3,100,000 shares of the Corporation's common stock. The
Corporation has requested that Tucker purchase additional shares of the
Corporations capital stock in the amount of $400,000 to provide the Corporation
with the funds necessary to make such cash payment. Tucker has agreed to make
such additional investment in the Corporation on the same terms and conditions
as his initial purchase of 3,200,000 shares of the Corporation's common stock.
The Corporation does not have sufficient shares of common stock authorized
for issuance to Tucker to fund the $400,000 requirement of the acquisition of
assets. Accordingly, the Corporation has offered to issue Tucker 5,000,000
shares of its preferred stock in lieu of common stock. The Corporation has
designated a Series A Preferred Stock which is convertible into common stock on
a basis of one share of Series A Preferred Stock convertible into four shares of
common stock.
The Corporation has agreed to grant Tucker an option to purchase 5,000,000
shares of the Corporation's Series A Preferred Stock on the terms and conditions
set forth herein.
NOW THEREFORE, it is agreed as follows:
Agreement
1. Grant of Option. Subject to the terms and conditions of this Agreement,
the Corporation hereby grants to Tucker the option ("Option") to purchase from
the Corporation up to an aggregate of 5,000,000 shares of the Corporation's
Series A Preferred Stock ("Option Shares"), from time to time, at a price of
$.08 per Share ("Exercise Price"). The Option is fully vested and is now
exercisable in part or in full.
2. Exercise of Option. The Option granted herein expires on March 31, 2004
and must be exercised, if at all, on or before March 31, 2004. This Option may
be exercised in whole or in part by delivery to the Corporation, from time to
time, of a written notice signed by Tucker, specifying the number of Option
Shares that Tucker then desires to purchase, together with cash, certified
check, or bank draft payable to the order of the Corporation for an amount equal
to the Exercise Price of such Shares.
3. Shares to be Fully Paid. The Corporation covenants and agrees that all
Option Shares, will, upon issuance and, if applicable, payment of the applicable
Exercise Price, be duly authorized, validly issued, fully paid and
nonassessable, and free of all liens and encumbrances, except for restrictions
on transfer provided for herein or under applicable federal and state securities
laws.
4. Adjustments. The Exercise Price and the number of shares purchasable
hereunder are subject to adjustment from time to time as follows:
4.1 Merger, Sale of Assets, etc. If at any time while this Option, or
any portion hereof, is outstanding and unexpired there shall be (i) a
reorganization (other than a combination, reclassification, exchange or
subdivision of shares otherwise provided for herein), (ii) a merger or
consolidation of the Corporation with or into another corporation in which
the Corporation is not the surviving entity, or a reverse triangular merger
in which the Corporation is the surviving entity but the shares of the
Corporation's capital stock outstanding immediately prior to the merger are
converted by virtue of the merger into other property, whether in the form
of securities, cash, or otherwise, or (iii) a sale or transfer of the
Corporation's properties and assets as, or substantially as, an entirety to
any other person, then, as a part of such reorganization, merger,
consolidation, sale or transfer, lawful provision shall be made so that the
holder of this Option shall thereafter be entitled to receive upon exercise
of this Option, during the period specified herein and upon payment of the
Exercise Price then in effect, the number of shares of stock or other
securities or property of the successor corporation resulting from such
reorganization, merger, consolidation, sale or transfer that such holder
would have been entitled to receive in such reorganization, consolidation,
merger, sale or transfer if this Option had been exercised immediately
before such reorganization, merger, consolidation, sale or transfer.
4.2 Reclassifications, etc. If the Corporation, at any time while this
Option, or any portion hereof, remains outstanding and unexpired by
reclassification of securities or otherwise, shall change any of the
securities as to which purchase rights under this Option exist into the
same or a different number of securities of any other class or classes,
this Option shall thereafter represent the right to acquire such number and
kind of securities as would have been issuable as the result of such change
with respect to the securities that were subject to the purchase rights
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under this Option immediately prior to such reclassification or other
change and the Exercise Price therefor shall be appropriately adjusted.
4.3 Split, Subdivision or Combination of Shares. If the Corporation at
any time while this Option, or any portion hereof, remains outstanding and
unexpired shall split, subdivide or combine the securities as to which
purchase rights under this Option exist, into a different number of
securities of the same class, the Exercise Price for such securities shall
be proportionately decreased in the case of a split or subdivision or
proportionately increased in the case of a combination.
5. No Voting or Dividend Rights. Nothing contained in this Option shall be
construed as conferring upon Tucker hereof the right to vote or to consent to
receive notice as a stockholder the Corporation on any other matters or any
rights whatsoever as a stockholder of the Corporation. No dividends or interest
shall be payable or accrued in respect of this Option or the interest
represented hereby or the shares purchasable hereunder until, and only to the
extent that, this Option shall have been exercised.
6. Transferability and Nonnegotiability of Option. This Option may not be
transferred or assigned in whole or in part without compliance with all
applicable federal and state securities laws by the transferor and the
transferee (including the delivery of investment representation letters and
legal opinions reasonably satisfactory to the Corporation, if such are requested
by the Corporation). Subject to the provisions of this Option with respect to
compliance with the Securities Act of 1933, as amended (the "Act"), title to
this Option may be transferred by endorsement and delivery in the same manner as
a negotiable instrument transferable by endorsement and delivery.
7. Restricted Legend. Upon exercise of this Option, Tucker shall, if
requested by the Corporation, confirm in writing, in a form satisfactory to the
Corporation, that the Option Shares issued upon exercise hereof or conversion
thereof shall be stamped or imprinted with a legend in substantially the
following form (in addition to any legend required by state securities laws):
THE SECURITIES REPRESENTED HEREBY HAVE BEEN ACQUIRED FOR INVESTMENT AND
HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR
ANY APPLICABLE STATE SECURITIES LAWS. SUCH SECURITIES AND ANY SECURITIES
ISSUED HEREUNDER OR THEREUNDER MAY NOT BE SOLD OR TRANSFERRED IN THE
ABSENCE OF SUCH REGISTRATION OR AN EXEMPTION THEREFROM UNDER SAID ACT AND
APPLICABLE LAWS.
9. Successors and Assigns. This Option and the rights evidenced hereby
shall inure to the benefit of and be binding upon the successors of the
Corporation and Tucker. The provisions of this Option are intended to be for the
benefit of Tucker from time to time of this Option, and shall be enforceable by
Tucker.
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10. Notices. Any notices permitted or required under this Agreement shall
be deemed given upon the date of personal delivery or 48 hours after deposit in
the United States mail, postage fully prepaid, return receipt requested,
addressed to the Corporation at its principal placement of business and to
Tucker at his residence.
11. Miscellaneous
11.1. Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of California.
11.2. Titles and Captions. All section titles or captions contained in
this Agreement are for convenience only and shall not be deemed part of the
context nor effect the interpretation of this Agreement.
11.3. Entire Agreement. This Agreement contains the entire
understanding between and among the parties and supersedes any prior
understandings and agreements among them respecting the subject matter of
this Agreement.
11.4.Binding Agreement. This Agreement shall be binding upon the
heirs, executors, administrators, successors and assigns of the parties
hereto.
11.5.Computation of Time. In computing any period of time pursuant to
this Agreement, the day of the act, event or default from which the
designated period of time begins to run shall be included, unless it is a
Saturday, Sunday, or a legal holiday, in which event the period shall begin
to run on the next day which is not a Saturday, Sunday, or legal holiday.
In the event that the last day of any period falls on a Saturday, Sunday or
legal holiday, such period shall run until the end of the next day
thereafter which is not a Saturday, Sunday, or legal holiday.
11.6. Pronouns and Plurals. All pronouns and any variations thereof
shall be deemed to refer to the masculine, feminine, neuter, singular, or
plural as the identity of the person or persons may require.
11.7. Arbitration. If at any time during the term of this Agreement
any dispute, difference, or disagreement shall arise upon or in respect of
the Agreement, and the meaning and construction hereof, every such dispute,
difference, and disagreement shall be referred to a single arbiter agreed
upon by the parties, or if no single arbiter can be agreed upon, an arbiter
or arbiters shall be selected in accordance with the rules of the American
Arbitration Association and such dispute, difference, or disagreement shall
be settled by arbitration in accordance with the then prevailing commercial
rules of the American Arbitration Association, and judgment upon the award
rendered by the arbiter may be entered in any court having jurisdiction
thereof.
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11.8. Presumption. This Agreement or any section thereof shall not be
construed against any party due to the fact that said Agreement or any
section thereof was drafted by said party.
11.9.Further Action. The parties hereto shall execute and deliver all
documents, provide all information and take or forbear from all such action
as may be necessary or appropriate to achieve the purposes of the
Agreement.
11.10. Parties in Interest. Nothing herein shall be construed to be to
the benefit of any third party, nor is it intended that any provision shall
be for the benefit of any third party.
11.11. Savings Clause. If any provision of this Agreement, or the
application of such provision to any person or circumstance, shall be held
invalid, the remainder of this Agreement, or the application of such
provision to persons or circumstances other than those as to which it is
held invalid, shall not be affected thereby.
IN WITNESS WHEREOF, the parties have executed this Agreement the day and
year first above-written.
Viking Systems, Inc. Tucker
By _______________________ _________________________
Thomas B. Marsh, President Donald E. Tucker
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