Exhibit 99.1
OPTION PURCHASE AGREEMENT
AGREEMENT entered into as of this 18th day of June, 2007, between X.X.
Xxxxxxxxxx ("Seller"), and United Capital Corp., a Delaware corporation (the
"Company").
WHEREAS, Seller has agreed to sell, and the Company has agreed to
purchase, in a privately negotiated transaction, 409,468 options granted to the
Seller on June 18, 1997 to purchase shares of Common Stock, $.10 par value of
the Company (the "Securities"), upon the terms and subject to the conditions set
forth below;
NOW THEREFORE, in consideration of the premises and mutual covenants and
conditions herein contained, the Company and Seller hereby agree as follows:
SECTION I.
SALE OF THE SECURITIES
1.1 SALE OF THE SECURITIES. Subject to the terms and conditions hereof and
in reliance upon the representations, warranties and agreements contained
herein, Seller will sell to the Company, and the Company will purchase from the
Seller, at the Closing (as hereinafter defined), the Securities for an aggregate
purchase price of $8,516,934.40 ("the Purchase Price") representing the
difference between the exercise price of the options ($8.50) and the closing
price of the Company's Common Stock on June 18, 2007 of $29.30 per share. As a
result of such transaction all of Seller's rights in those options granted by
the Company to the Seller on June 18, 1997 are hereby surrendered.
SECTION II
CLOSING DATE; DELIVERY
2.1 CLOSING DATE. The closing of the purchase and sale of the Securities
hereunder (the "Closing") shall be held not later than June 22, 2007 (the
"Closing Date") at such time and place as shall be mutually agreed upon by the
Company and Seller.
2.2 DELIVERY. At the Closing, the Company will deliver to Seller the
Purchase Price by Company check. This agreement constitutes the Seller's
acknowledgement of his surrender of all rights in connection with the
Securities.
SECTION III.
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company hereby represents and warrants to Seller as follows:
3.1 ORGANIZATION AND STANDING. The Company is a corporation duly organized
and existing under the laws of the State of Delaware and is in good standing
under such laws.
3.2 CORPORATE POWER. The Company has all requisite corporate power and
authority to enter into this Agreement and will have at the Closing Date all
requisite corporate power to purchase the Securities and to carry out and
perform its obligations under the terms of this Agreement. The execution,
delivery and performance of this Agreement has been duly authorized by the
Company.
3.3 NO CONFLICTS. Neither the execution or delivery of the Agreement by
the Company nor the consummation by the Company of the transactions contemplated
hereby nor compliance by the Company with any of the provisions hereof will (i)
conflict with or result in any breach of any provision of the certificate of
incorporation or by-laws of the Company, (ii) result in a violation or breach
of, or constitute a default under, any of the terms, conditions or provisions of
any note, bond, mortgage, indenture, license, contract, lease, agreement or
other instrument or obligations to which the Company is a party or by which it
or any of its properties or assets may be bound, or (iii) violate any order,
writ, injunction, decree, statue, treaty, rule of regulation applicable to the
Company, except in the case of clauses (ii) or (iii) hereof, for violations,
breaches, defaults and right which in the aggregate would not have a material
adverse effect on the Company and its subsidiaries.
SECTION IV.
REPRESENTATIONS, WARRANTIES AND COVENANTS OF SELLER
Seller represents and warrants to the Company as follows:
4.1 POWER. Seller has all requisite power and authority to enter into this
Agreement and will have at the Closing Date all requisite power to sell the
Securities and to carry out and perform its obligations under the terms of this
Agreement.
4.2 NO CONFLICTS. Neither the execution and delivery of this Agreement by
Seller nor the consummation by Seller of the transactions contemplated hereby
nor compliance by Seller with any of the provisions hereof will (i) result in a
violation or breach of, or constitute a default under, any of the terms,
conditions or provisions of any note, bond, mortgage, indenture, license,
contract, lease, agreement or other instrument or obligations to which Seller is
a party or by which it or any of its properties or assets may be bound, or (ii)
violate any order, writ, injunction, decree, statute, treaty, rule or regulation
applicable to Seller, except for violations, breaches, defaults and rights which
in the aggregate would not have a material adverse effect on Seller.
SECTION V.
MISCELLANEOUS
5.1 GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York.
5.2 SUCCESSORS, ASSIGNS AND TRANSFEREES. Except as otherwise expressly
provided herein, the provisions hereof shall inure to the benefit of, and be
binding upon, the successors, assigns, transferees, heirs, executors and
administrators of the parties hereto.
5.3 SEPARABILITY. In case any provision of the Agreement shall be invalid,
illegal or unenforceable, the validity, legality and enforceability of the
remaining provisions shall not in any way be affected or impaired thereby.
5.4 COUNTERPARTS. This Agreement may be executed in any number of
counterparts; each of which shall be an original, but all of which, together,
shall constitute one instrument.
5.5 ENTIRE AGREEMENT. This Agreement shall represent the entire
understanding among the parties hereto pertaining to the Securities and
supersedes any previous agreement, whether written or oral.
5.6 ACKNOWLEDGMENT BY SELLER. Seller acknowledges that the Company's
Common Stock is publicly-traded on the American Stock Exchange and that the
Purchase Price of the Securities may bear no relation to the future market value
or book value of the Common Stock. Seller further acknowledges that it has
reviewed the Company's Form 10-K for the fiscal year ended December 31, 2006 and
its Form 10-Q for the quarter ended March 31, 2007. Seller further acknowledges
that it is not relying on any oral or written information or representations
from the Company or any other person, including representatives of the Company
in connection with its decision to enter into this Agreement, including the
Company's financial condition, prospects, present or future results of
operations, business plans or the potential for future appreciation in the
Company's Common Stock.
5.7 NOTICES. All notices, request, consents and other communications
hereunder to any party shall be in writing and shall be delivered personally,
sent via air courier or mailed by certified or registered mail, return receipt
requested, postage prepaid, addressed as follows:
If to the Company, to:
United Capital Corp.
United Capital Building
0 Xxxx Xxxxx
Xxxxx Xxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxx
Chief Financial Officer
with copies to:
Xxxxxx Xxxxxxxx Frome Xxxxxxxxxx & Xxxxxxx LLP
65 East 55th Street, 0xx Xxxxx
Xxxx Xxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
if to Seller to:
X.X. Xxxxxxxxxx
000 Xxxx Xxxxx Xxxx
Xxxxx Xxxxx, XX 00000
provided, however, that each party may change the address to which notices are
to be delivered or mailed to such party by giving notice thereof in accordance
with this Section to the other parties. Notices shall be deemed to be given (a)
if delivered personally, on the date of delivery, (b) if sent by air courier, on
the first business day following the date of dispatch, and (c) if mailed, on the
third business day following the date of the mailing.
5.8 FEES AND EXPENSES. All of the parties hereto shall be responsible for
their own fees and expense with respect to this Agreement.
UNITED CAPITAL CORP.
By: /s/ Xxxxxxx X. Xxxxxx
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Xxxxxxx X. Xxxxxx
Chief Financial Officer
Seller:
By: /s/ X. X. Xxxxxxxxxx
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X. X. Xxxxxxxxxx
