OPTION AGREEMENT
Dated August 3, 1999
The parties to this agreement are Network Event Theater, Inc., a Delaware
corporation ("NET"), New CW, Inc., a Delaware corporation and a wholly-owned
subsidiary of NET ("New CW"), XxxxxxxXxx.xxx, Inc., a Delaware corporation
("CW"), and the stockholders of CW named at the end of this agreement
(collectively, the "Stockholders").
The parties agree as follows:
I. Option. NET shall have the option, but shall not be required, to
acquire CW pursuant to the agreement and plan of merger among the parties to
this agreement, a copy of which is attached to this agreement as exhibit A (the
"Merger Agreement"), by giving written notice to CW and the Stockholders at any
time before the close of business on September 15, 1999, or, if earlier, the
close of business on the tenth day following receipt by NET of the audited
financial statements referred to in section 4.7 of the Merger Agreement, with a
report thereon by Ernst & Young LLP, that it wishes to exercise this option. If
NET so exercises this option, CW and the Stockholders shall take all action
necessary to cause the merger contemplated by the Merger Agreement to be
consummated as promptly as practicable thereafter. The option provided for in
this section 1 shall be irrevocable and shall be considered an irrevocable offer
pursuant to Section 5-1109 of the New York General Obligations Law.
2. Advances. Simultaneously with the execution and delivery of this
agreement and the Merger Agreement, Common Places, LLC ("CP"), an affiliate of
NET, is loaning CW $100,000, and CW is executing and delivering to CP a
promissory note in respect of that loan in the form of exhibit B (the "First
Note"). In addition, NET hereby confirms that CP has agreed to loan CW an
additional $100,000 on each of two occasions upon notice given by CW to NET,
and, as a condition to making each such loan to CW, CW shall execute and deliver
to CP a promissory note in respect of each such loan in the form of the First
Note (but dated the date of the respective loan). Simultaneously with the
execution and delivery of the First Note, J. Xxxxxxxxx Xxxxxx is executing and
delivering to CP a guaranty of CW's obligations under the First Note and any
subsequent note referred to above in the form of exhibit C, which is secured by
a pledge of all Xx. Xxxxxx' stock in CW.
3. Representations. CW and each Stockholder severally represent and
warrant to NET, as to himself, herself or itself only, the following:
(a) This agreement has been duly and validly executed and delivered
by CW and each Stockholder, and constitutes a valid and binding agreement of
each of them, enforceable against each of them in accordance with its terms,
except as enforceability may be limited by applicable bankruptcy, insolvency and
similar laws affecting creditors' rights generally and subject to general
principles of equity (whether considered in a proceeding in equity or at law).
(b) Each Stockholder is an accredited investor within the meaning of
Regulation D under the Securities Act of 1933 (the "Act") and, by virtue of his
or her experience in evaluating
and investing in private placement transactions of securities in companies
similar to NET, he or she is capable of evaluating the merits and risks of an
investment in NET and has the capacity to protect his or her own interests. Each
Stockholder has had access to NET's senior management and has had the
opportunity to conduct such due diligence review as he or she has deemed
appropriate.
(c) Each Stockholder will be acquiring the NET Common Stock (as
defined in the Merger Agreement) for investment for his or her own account, not
as a nominee or agent, and not with the view to, or for resale in connection
with, any distribution of any part thereof. Each Stockholder understands that
the NET Common Stock will not be registered under the Act or applicable state
and other securities laws by reason of a specific exemption from the
registration provisions of the Act and applicable state and other securities
laws, the availability of which depends upon, among other things, the bona fide
nature of the investment intent and the accuracy of each Stockholder's
representations in this section 3(c).
(d) Each Stockholder acknowledges and understands that he or she
must bear the economic risk of this investment for an indefinite period of time
because the NET Common Stock must be held indefinitely, unless subsequently
registered under the Act and applicable state and other securities laws or
unless an exemption from such registration is available. Each Stockholder
understands that any transfer agent of NET will be issued stop-transfer
instructions with respect to the NET Common Stock issued pursuant to the Merger
Agreement, unless any transfer thereof is subsequently registered under the Act
and applicable state and other securities laws or unless an exemption from such
registration is available.
4. Agreements
(a) During the term of this option agreement, each Stockholder
agrees that he, she or it shall not, directly or indirectly, engage in any
discussions with any other person or entity (other than NET and its affiliates)
relating to the transactions contemplated by this agreement or relating to any
other acquisition, merger, financing or similar transaction involving CW or its
business. If a third party seeks to engage in any such discussion with CW or any
Stockholder, CW or such Stockholder, as the case may be, shall immediately so
advise NET.
(b) Each Stockholder severally agrees that he, she or it shall
vote all the shares of NET Common Stock issued to him, her or it under the
Merger Agreement in favor of the Mergers (as defined in the Merger Agreement) at
the stockholders meeting referred to in section 4.8 of the Merger Agreement and
against any other transaction or proposal that might conflict with the
consummation of such Mergers.
5. Miscellaneous
5.1 Enforcement of Agreement. The parties agree that irreparable
damage would occur in the event any of the provisions of this agreement are not
performed in accordance with their specific terms or are otherwise breached.
Accordingly, the parties agree that they shall be entitled to an injunction to
prevent breaches of this agreement and to enforce specifically the terms and
provisions of this agreement in any federal or state court located in the
Borough of Manhattan in the City of New York (as to which the parties agree to
submit to jurisdiction for the purposes of
such action), this being in addition to any other remedy to which they are
entitled at law or in equity.
5.2 Expenses. Each of the parties shall bear its own expenses in
connection with the transactions contemplated by this agreement, and no party
shall have any liability to the others with respect to those expenses.
5.3 Validity. The invalidity or unenforceability of any provision of
this agreement shall not affect the validity or enforceability of any other
provision of this agreement, which shall remain in full force and effect.
5.4 Waiver. Any term or provision of this agreement may be waived in
writing at any time by the party that is entitled to the benefits of that term
or provision.
5.5 Notices. All notices, requests, claims, demands and other
communications under this agreement shall be in writing and shall be deemed to
have been duly given when delivered in person, by facsimile transmission with
confirmation of receipt, or by registered or certified mail (postage prepaid,
return receipt requested) to the respective parties as follows:
if to NET or New CW, to it at:
Network Event Theater, Inc.
000 Xxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx X. Xxxxxx, Executive Vice President and Chief
Financial Officer
Fax No.: (000) 000-0000
if to CW or a Stockholder, to it or him at:
CollegeWeb, Inc.
000 Xxxx Xxxxxxxx Xxxx
Xxxxx 0000
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: J. Xxxxxxxxx Xxxxxx, President and Chief Executive
Officer
Fax No.: 000-000-0000
or to such other address as the person or entity to whom notice is given may
have previously furnished to the others in writing in the manner set forth above
(provided that notice of any change of address shall be effective only upon
receipt of notice of the change).
5.6 Governing Law. This agreement shall be governed by and construed
in accordance with the law of the state of New York, regardless of the law that
might otherwise govern under principles of conflicts of laws applicable to this
agreement.
5.7 Headings. The headings in this agreement are for convenience of
reference
only and are not intended to be part of or to affect the meaning or
interpretation of this agreement.
5.8 Parties in Interest. This agreement shall be binding upon and
inure solely to the benefit of each party to this agreement, and nothing in this
agreement, express or implied, is intended to confer upon any other person any
rights or remedies of any nature under or by reason of this agreement.
5.9 Counterparts. This agreement may be executed in counterparts,
each of which shall be deemed to be an original, but all of which together shall
constitute one and the same agreement.
5.10 Entire Agreement. This agreement and the exhibits to this
agreement constitute the entire agreement among the parties with respect to
their subject matter and supersede all prior agreements and understandings, both
written and oral, among the parties with respect to that subject matter.
NETWORK EVENT THEATER, INC.
By:___________________________________
NEW CW, INC.
By:___________________________________
XXXXXXXXXX.XXX, INC.
By:___________________________________
STOCKHOLDERS:
______________________________________
J. Xxxxxxxxx Xxxxxx, Individually
______________________________________
Xxxx X. Xxxxxx, Individually
______________________________________
Xxxx Xxxxxxxxx, Individually
______________________________________
Xxxx Xxxxxxxxx, Individually
______________________________________
Xxxxxxx Xxxxxxx, Individually
MERCURY TRUST (XXXXX XXXXXXXXX)
By:___________________________________
