OPTION AGREEMENT
----------------
THIS OPTION AGREEMENT (the "Agreement") is entered into as of the 19th
day of March, 1996, among Xxxxxx Communications Corporation, an Oklahoma
corporation ("Xxxxxx"), Xxxxxxx Plaza Partners, a Rhode Island general
partnership ("KPP"), Fleet Venture Resources, Inc., a Rhode Island
corporation ("FVR"), and Fleet Equity Partners VI, L.P., a Delaware limited
partnership ("FEP" and together with KPP and FVR, the "Fleet Investors").
RECITALS:
--------
WHEREAS, the Fleet Investors hold 100,000 shares of the Company's Class
B Convertible Preferred Stock, $1.00 par value per share (the "Preferred
Stock"); and
WHEREAS, the Preferred Stock is convertible into Class A Voting Common
Stock of the Xxxxxx, $1.00 par value per share (the "Common Stock"), pursuant
to the terrns and conditions of Xxxxxx'x Certificate of Incorporation, as
amended (the "Charter"); and
WHEREAS, Xxxxxx desires to obtain the right to purchase from the Fleet
Investors up to 452 shares of Common Stock issuable upon conversion of the
Preferred Stock; and
NOW, THEREFORE, for good and valuable consideration, receipt of which is
herewith acknowledged, and the mutual covenants set forth in this Agreement,
it is agreed as follows:
1. GRANT OF OPTION. For the sum of $100.00, receipt of which is
hereby acknowledged, the Fleet Investors hereby grant to Xxxxxx the option
(the "Option") to purchase from the Fleet Investors up to an aggregate of 452
shares (adjusted to give effect to stock splits, stock dividends and similar
events) of the Common Stock issuable upon conversion of the Preferred Stock
held by the Fleet Investors (such shares if and when issued being referred to
herein as the "Option Stock").
2. OPTION PRICE. The amount payable for the Option Stock shall be
$.01 per share (adjusted to give effect to stock splits, stock dividends and
similar events). The purchase price for the Option Stock (the "Option
Price") shall be payable in cash by wire transfer of immediately available
funds or by Xxxxxx'x check.
3. RIGHT TO EXERCISE. Subject to the terms and conditions set forth
in this Agreement, Xxxxxx shall have the right to exercise the Option, in
full but not in part, only if (i) a "Texas 2 Event", as defined in that
certain Securities Purchase Agreement of even date herewith by and among
Xxxxxx and the Fleet Investors, shall have occurred prior to Xxxxx 00, 0000,
(xx) the Fleet Investors shall have converted the Preferred Stock to Common
Stock as of the consummation of the Texas 2 Event and (iii) Xxxxxx shall have
exercised the Option as provided in Section 5 hereof, within 30 days
following the consummation of the Texas 2 Event. Thirty days following the
consummation of a Texas 2 Event this Option shall expire, terminate and be of
no further force or effect.
4. SHAREHOLDERS AGREEMENT. The parties hereto agree that any Common
Stock purchased pursuant to the exercise of the Option shall be subject to
the provisions of the Stockholders' Agreement of even date herewith by and
among the Company and the stockholders named therein.
5. EXERCISE OF OPTION. The Option may be exercised by delivering to
the Fleet Investors a written notice (the "Option Notice") of exercise in
substantially the form prescribed from time to time by the Fleet Investors.
Such notice shall be signed by Xxxxxx and shall indicate the date on which
the Option Price will be delivered to the Fleet Investors, which date shall
not be later than three business days after receipt by the Fleet Investors of
the Option Notice.
6. ISSUE OR TRANSFER TAX. The transfer by the Fleet Investors of
Common Stock upon the exercise of the Option shall be made subject to payment
by Xxxxxx of any issuance or transfer tax in respect thereof.
7. DELIVERY OF SHARE CERTIFICATES. Subject to the forgoing
conditions, the Fleet Investors promptly after receipt of the Option Price,
shall cause to be delivered to Xxxxxx at the principal office of the Company,
or such other location as may be acceptable to the Fleet Investors and
Xxxxxx, one (1) or more certificates evidencing the Common Stock with respect
to which the Option is exercised, together with executed stock powers.
-2-
8. NOTICES. Any notice to Xxxxxx or either of the Fleet Investors
shall be addressed to it at the address on file with the Company on the date
hereof or at such other address as either of the Fleet Investors or Xxxxxx
may hereafter designate in writing. Notice shall be deemed to have been given
upon receipt of, or sooner, five (5) days after such notice has been
deposited, postage prepaid, certified or registered mail, return receipt
requested, in the United States mail addressed to the addressee specified in
the immediately preceding sentence.
9. MODIFICATION AND WAIVER. This Option Agreement and any provision
hereof may be changed, waived, discharged or terminated only by an instrument
in writing signed by the party against which enforcement of the same is
sought.
10. DESCRIPTIVE HEADINGS AND GOVERNING LAW. The descriptive headings
of the several sections and paragraphs of this Option Agreement are inserted
for convenience only and do not constitute a part of this Option Agreement.
This Option Agreement shall be construed and enforced in accordance with, and
the rights of the parties shall be governed by, the laws of the State of
Delaware, notwithstanding principles of conflicts of laws.
IN WITNESS WHEREOF, each of the parties hereto has executed this Option
Agreement as of the day and year first above written.
XXXXXX COMMUNICATIONS CORPORATION
By: /s/ Xxxxxxx X. Xxxxxx
--------------------------------
Xxxxxxx X. Xxxxxx
President
FLEET VENTURE RESOURCES, INC.
By: /s/ Xxxxxxx X. Xxxxxxxx
--------------------------------
Xxxxxxx X. Xxxxxxxx
Vice President
-3-
FLEET EQUITY PARTNERS VI, L.P.
By: Fleet Growth Resources II, Inc.
By: /s/ Xxxxxxx X. Xxxxxxxx
--------------------------------
Xxxxxxx X. Xxxxxxxx
Vice President
XXXXXXX PLAZA PARTNERS
By: /s/ Xxxxxxx X. Xxxxxxxx
--------------------------------
Title:
--------------------
-4-
