OPTION AGREEMENT
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THIS OPTION PURCHASE AGREEMENT is made as of March 7, 2002, by and
among Xxxxx & Xxxxx Company, a Delaware corporation (the "Company"), the persons
and entities listed on Schedule A (individually, a "Lender" and collectively,
the "Lenders") and Bank of America, N.A., as Administrative Agent under the
Credit Agreement referred below (in such capacity, the "Administrative Agent").
RECITALS
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WHEREAS, pursuant to the terms of the Third Amendment, dated as of
March 7, 2002, to the Amended and Restated Credit Agreement, dated as of
December 31, 2000, as amended, among the Company, various financial
institutions (the "Banks") and the Administrative Agent (the "Credit
Agreement"), the Lenders agreed to make an Additional Term Loan (as defined in
the Credit Agreement) to the Company;
WHEREAS, in consideration for the making of the Additional Term Loan,
the Company intends to issue convertible promissory notes (the "Bank Note") in
connection with the potential issuance of the Company's series A preferred
stock, par value $.01 per share ("Series A Preferred Stock"), as set forth in
the Certificate of Designations, Number, Voting Powers, Preferences and
Rights of Series A Preferred Stock attached hereto as Exhibit A;
WHEREAS, the Company wishes to acquire, and the Lenders have agreed to
grant to the Company, an option to sell additional promissory notes to the
Lenders, on the terms and subject to the conditions set forth herein;
WHEREAS, the Lenders have agreed to grant the Company the right under
certain circumstances to terminate this Agreement by purchasing from the Lenders
(a) the outstanding Bank Note (or the shares of Series A Preferred Stock issued
upon the conversion thereof) and (b) a certain number of shares of common stock,
par value $.01 per share ("Common Stock"), all on the terms and subject to the
conditions set forth herein; and
WHEREAS, the Company has assigned to the Administrative Agent, for the
benefit of the Banks, all of its personal property, including all of its rights
under this Agreement.
NOW, THEREFORE, in consideration of the foregoing and the mutual
premises and covenants made herein, and other good and valuable consideration
the receipt and sufficiency of which are hereby acknowledged, the parties hereto
hereby agree as follows:
1. Grant of Option.
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1.1 Put Right. Subject to the terms and conditions set forth herein,
each Lender (and/or one or more of its permitted assigns) severally, irrevocably
and unconditionally agrees to purchase from the Company, and the Company
irrevocably and unconditionally agrees to sell to each Lender (and/or one or
more of its permitted assigns), on June 3, 2002 (the "Closing Date"), a
convertible promissory note containing the same terms and conditions, and
with the same conversion features, as set forth in the form of note attached
hereto as Exhibit B (each a "Put Note" and collectively the "Notes"), in the
amount set forth opposite such Lender's name on Schedule A hereto. The right of
the Company to require such purchases is herein called the "Put Right".
1.2 Exercise of Put Right. In order to exercise the Put Right, the
Company shall deliver written notice of exercise (the "Notice of Exercise") by
5:00 PM New York time on May 30, 2002, in the manner prescribed in Section 7.4
hereto, to the Lenders.
1.3 Refinancing Option. Prior to April 30, 2002 (the "Refinancing Option
Termination Date"), the Company shall have the right to purchase from the
Lenders (a) the Bank Note (or the shares of Series A Preferred Stock issued upon
conversion of the Bank Note) and (b) 1,337,358 shares of Common Stock held by
the Lenders ((a) and (b) collectively, the "Refinancing Option") for an
aggregate amount equal to (i) the $5,000,000 principal amount of the Bank Note
and accrued interest thereon (assuming that the full $5,000,000 principal
amount of the Bank Note was outstanding on the payment date) plus reasonable
expenses (as defined in the Bank Note) to the date of purchase and (ii)
$4,158,431 (the sum of (i) and (ii) the "Refinancing Option Price"); provided,
that in the event that (x) the Company shall not have exercised the Refinancing
Option prior to the Refinancing Option Termination Date, (y) the Company has
obtained a non-binding letter of intent, term sheet or similar documentation
which sets forth the terms of a transaction that the Company in good faith
reasonably believes will provide the Company with the requisite funds to effect
the Refinancing Option on or before May 14, 2002 and (z) the Company has
provided the Lender with a copy of such documentation, then the Refinancing
Option shall automatically and irrevocably be extended to May 14, 2002. In the
event that the Refinancing Option is exercised and the Refinancing Option Price
is paid in full by the rendering of payment thereof by April 30, 2002 or May 14,
2002, as applicable, then this Agreement shall terminate and have no further
effect (other than Section 7.2 hereof which shall survive). Notwithstanding the
foregoing, the Company shall not have the right to exercise the Refinancing
Option unless it has received, after the date of this Agreement, proceeds from
the issuance of subordinated debt or equity of the Company (in each case having
terms reasonably acceptable to the Required Lenders (as defined in the Credit
Agreement)) at least equal to the sum of (x) the Refinancing Option Price plus
(y) $6,000,000.
1.4 Purchase Obligations Unconditional. Subject to the terms of this
Agreement (including Section 1.3 hereof), the obligation of each Lender to make
the purchase described in Section 1.1 is absolute, unconditional and
irrevocable, and such purchase shall be made strictly in accordance with the
terms of this Agreement under all circumstances, notwithstanding:
(a) any breach by the Company of any representation, warranty or
covenant set forth in this Agreement or any related document;
(b) the existence of any claim, set-off, defense or counterclaim
that such Lender may have against the Company or any other person or entity;
(c) any change in or restructuring of the corporate structure of, or
termination of the existence of, the Company;
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(d) the existence of any Event of Default or Default (as each such
term is defined in the Credit Agreement);
(e) the existence of any bankruptcy, insolvency, liquidation,
winding up, reorganization, relief or similar proceeding with respect to the
Company or any of its subsidiaries;
(f) any material adverse change in the business, condition
(financial or otherwise), assets, operations or prospects of the Company or any
of its subsidiaries; or
(g) any other circumstance or event, whether or not similar to any
of the foregoing, that might otherwise constitute a defense available to, or a
discharge of, such Lender's obligation to make the purchase required hereunder.
2. Conversion of Notes.
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(a) Each Note purchased hereunder shall be convertible into Series A
Preferred Stock, in accordance with the provisions of such Note.
(b) The holder of any Note to be converted shall surrender such Note
to the Company at its principal office and shall indicate the name or the names
in which the certificate or certificates for Series A Preferred Stock which
shall be issuable on such conversion shall be issued. As soon as practicable
after the surrender of the Note or Notes as aforesaid, the Company shall cause
to be issued and delivered at such office to such holder, or on its written
order, a certificate or certificates, in the name or names specified by such
holder, for the full number of Series A Preferred Stock issuable on such
exchange in accordance with the provisions hereof.
3. Closing. The closing of the purchase and sale of the Put Notes to the
Lenders hereunder (the "Closing") shall take place at the offices of Xxxxxxx
Xxxx & Xxxxxxxxx, 000 Xxxxxxx Xxxxxx, Xxx Xxxx, XX, at 10:00 A.M. on the Closing
Date, or at such other place as the Company, the Lenders and the Administrative
Agent mutually agree upon in writing. At the Closing, (i) the Company shall
deliver to each Lender a Put Note, representing its pro rata portion of
$6,000,000, (ii) each Lender shall cause to be delivered to the Company, by wire
transfer to an account specified by the Administrative Agent, an amount equal to
the original principal amount of its Put Note and (iii) each Lender shall sign,
and the Company shall acknowledge, a Subordination Agreement in the form
of Exhibit C hereto. All of the parties hereto acknowledge and agree that the
proceeds of the purchase and sale of the Put Notes will be applied to prepay
Revolving Credit Loans under and as defined in the Credit Agreement until the
Revolving Credit Loans are repaid in full, and any balance may be retained by
the Company for use in the business of the Company and its subsidiaries;
provided that, if an Event of Default exists under and as defined in the Credit
Agreement at the time of receipt of any such proceeds, such proceeds shall be
applied to prepay Term Loans under and as defined in the Credit Agreement.
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4. Representations, Warranties and Covenants of the Company. The Company
hereby represents and warrants to each Lender the following:
4.1 Organization, Good Standing and Qualification. The Company is a
corporation duly organized, validly existing and in good standing under the laws
of the State of Delaware and has all requisite corporate power and authority to
carry on its business as now being conducted and proposed to be conducted in the
future. The Company is duly qualified to transact business and is in good
standing in each jurisdiction where failure to so qualify would have a material
adverse effect on its business or properties.
4.2 Capitalization. All issued and outstanding shares of the Company's
capital stock have been duly authorized and validly issued and are fully paid
and nonassessable. All of the outstanding shares of preferred stock, common
stock, options and warrants have been duly and validly issued in compliance with
applicable state and federal securities laws. Upon the consummation of the
transactions contemplated hereby and effective as of the Closing, the authorized
capital of the Company will consist of (a) 50,000,000 shares of common stock,
$.01 par value ("Common Stock"), and (b) 60,000 shares of Series A Preferred
Stock. As of the Closing, there shall be no declared but unpaid dividends or
undeclared dividend arrearages on any shares of common stock of the Company.
Immediately prior to giving effect to the consummation of the transactions
contemplated by this Agreement, the only shares of the Company's capital stock
issued and outstanding or reserved for issuance or committed to be issued will
be as follows:
(a) 14,948,384 fully paid and non-assessable shares of Common Stock,
duly and validly issued and outstanding;
(b) an additional 2,727,863 shares of Common Stock reserved for
issuance upon the exercise of issued and outstanding stock options; (c) 600,000
shares of Common Stock reserved for issuance upon the exercise of issued and
outstanding warrants;
(d) 2,371,601 shares of Common Stock reserved for issuance upon the
issuance and exercise of stock options that have been authorized but have not
been granted;
(e) no shares of the Company's preferred stock that are issued and
outstanding; and
(f) up to 60,000 shares of the Company's preferred stock reserved
for designation as shares of Series A Preferred Stock.
4.3 Authorization. All corporate actions on the part of the Company and
its officers, directors, and shareholders necessary for the authorization,
execution, and delivery of this Agreement, the Series A Preferred Stock and the
Notes, the performance of all obligations of the Company hereunder and
thereunder, and the authorization, issuance (or reservation for issuance), and
delivery of the Notes and the Series A Preferred Stock (collectively, the
"Securities") have been taken or will be taken prior to the Closing. This
Agreement and the Notes constitute the valid and legally binding obligations of
the Company, enforceable in
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accordance with their respective terms, except as limited by (a) applicable
bankruptcy, insolvency, reorganization, moratorium, and other laws of
general application affecting enforcement of creditors' rights generally, (b)
laws relating to the availability of specific performance, injunctive relief or
other equitable remedies and (c) state and federal securities laws with respect
to rights to indemnification or contribution.
4.4 Valid Issuance of Equity Securities. The Securities, when
authorized, issued, sold and delivered in accordance with the terms hereof for
the consideration expressed herein, will be duly and validly issued, fully paid
and nonassessable and, based in part upon the representations of the Lenders in
this Agreement, will be issued in compliance with all applicable federal and
state securities laws.
4.5 No Conflict. Except as set forth in the Disclosure Schedule, the
execution and delivery by the Company of this Agreement and the performance by
the Company of its obligations hereunder (including the issuance and sale of the
Securities) do not require the Company to obtain any consent, approval or action
of, or make any filing with or give any notice to, any corporation, person or
firm or any public, governmental or judicial authority that has not already been
obtained prior to the date hereof.
4.6 Absence of Defaults. Except as set forth in the Disclosure Schedule,
the execution and delivery of this Agreement and the performance of its
obligations hereunder (including the issuance and sale of the Securities) will
not result in a breach of any of the terms, conditions or provisions of, or
constitute a default under, or permit the acceleration of rights under or
termination of, any material indenture, mortgage, deed of trust, credit
agreement, note or other evidence of indebtedness, or other material
agreement of the Company or the Certificate of Incorporation or Bylaws of the
Company (all of the foregoing, the "Material Documents"). No event has occurred
and no condition exists which, upon notice or the passage of time (or both),
would constitute a default under any Material Document or in any license, permit
or authorization to which the Company is a party or by which it may be bound.
4.7 Litigation. Except as set forth in the Disclosure Schedule, there is
no action, suit, proceeding or investigation pending or, to the Company's
knowledge, currently threatened against the Company that questions the validity
of this Agreement or the Notes or the right of the Company to enter into them,
or to consummate the transactions contemplated hereby or thereby, or that might
result, either individually or in the aggregate, in any material adverse change
in the assets, condition or affairs of the Company, financially or otherwise,
nor is the Company aware that there is any basis for the foregoing. The Company
is not a party or subject to the provisions of any order, writ, injunction,
judgment or decree of any court or government agency or instrumentality. Except
as set forth in the Company's annual report on Form 10-K for the period ending
June 30, 2001, or in the ordinary course of business, there is no material
action, suit, proceeding or investigation by the Company currently pending or
which the Company intends to initiate.
4.8 Compliance with Laws. Except as set forth in the Disclosure
Schedule, the Company has conducted its business in compliance with all
applicable (i) laws, statutes, ordinances, regulations, rules, notice
requirements, common law, agency guidelines and orders (together, "Regulations")
of any foreign, federal, state or local courts or governmental agencies,
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departments or authorities ("Authorities") and (ii) judgments, decisions,
consent decrees, injunctions, rulings or orders of any Authorities that are
binding on any person (as such term is broadly defined) or its property under
applicable law (together, "Court Orders"), except as would not reasonably be
expected to cause a material adverse effect on the Company's business. The
Company has not received any notice to the effect that, and has not otherwise
been advised that, the Company is not in compliance with any such Regulation or
Court Order, and the Company does not anticipate that any existing
circumstances are reasonably likely to result in any material violation of any
of the foregoing.
4.9 Certain Changes and Conduct of Business. From and after the date of
this Agreement and until the Notes are no longer outstanding, the Company shall
inform the Lenders of all material developments with respect to the Company,
including without limitation (i) entering into material agreements, (ii) any
issuance of debt securities or the incurrence of any other indebtedness, (iii) a
change in the number of Directors of the Company and (iv) a sale, lease or
transfer of any material portion of the assets of the Company. The Company shall
provide the Lenders with any written information provided to the Company's Board
of Directors.
4.10 Solvency. Immediately after the Closing and after giving effect to
the purchase and sale of the Notes, the fair value of the assets of the Company
will exceed its debts and liabilities, subordinated, contingent or otherwise.
5. Representations, Warranties and Covenants of the Lenders. This Agreement
is made with each Lender in reliance upon such Lender's representations to the
Company and the Administrative Agent, which by such Lender's execution of this
Agreement such Lender hereby confirms, that:
5.1 Purchase Entirely for Own Account. The Securities will be acquired
for investment for such Lender's own account, not as a nominee or agent, and not
with a view to the resale or distribution of any part thereof, and such Lender
has no present intention of selling, granting any participation in, or otherwise
distributing the same. By executing this Agreement, such Lender further
represents that such Lender does not have any contract, undertaking, agreement
or arrangement with any person to sell, transfer or grant participations, to
such person or to any third person, with respect to any of the Securities.
5.2 Disclosure of Information. Such Lender believes it has received all
the information it considers necessary or appropriate for deciding whether to
acquire the Securities. Such Lender further represents that it has had an
opportunity to ask questions and receive answers from the Company regarding the
terms and conditions of the offering of the Securities. The foregoing, however,
does not limit or modify the representations and warranties of the Company in
Section 4 of this Agreement or the right of the Lenders to rely thereon.
5.3 Investment Experience. Such Lender is an investor in securities of
companies in the development stage and acknowledges that it is able to fend for
itself, can bear the economic risk of its investment and has such knowledge and
experience in financial or business matters that it is capable of evaluating the
merits and risks of the investment in the Securities. Such Lender also
represents, unless such Lender is an individual, it has not been organized for
the purpose of acquiring the Securities.
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5.4 Accredited Investor. Such Lender is an "accredited investor" within
the meaning of Rule 501 of Regulation D under the Securities Act of 1933, as
amended (the "Act"), as presently in effect.
5.5 Restricted Securities. Such Lender understands that the Securities
are characterized as "restricted securities" under the federal securities laws
inasmuch as they are being acquired from the Company in a transaction not
involving a public offering and that under such laws and applicable regulations
such securities may be resold without registration under the Act only in certain
limited circumstances. In this connection, such Lender represents that it is
familiar with Rule 144 under the Act, as presently in effect, and understands
the resale limitations imposed thereby and by the Act.
5.6 Ability to Make Purchase. Such Lender has, and will at all times
prior to the Closing maintain, (a) cash, (b) cash equivalent investments, (c)
undrawn subscription or other rights to obtain equity investments, (d) undrawn
availability under one or more credit facilities and/or (e) other sources or
immediately available funds in an amount at least equal to the amount of the Put
Note that such Lender is required to purchase hereunder.
6. Separate Undertaking of the Lenders.
-----------------------------------
6.1 Effect of Rejection, etc. Without limiting the generality of any of
the foregoing provisions of this Agreement, each Lender irrevocably waives, to
the full extent permitted by applicable law and for the benefit of, and as a
separate undertaking with, the Banks and the Administrative Agent, any defense
to the performance of this Agreement which may be available to such Lender as a
consequence of this Agreement being rejected or otherwise not assumed by the
Company or any trustee or other similar official for the Company or for any
substantial part of the property of the Company, or as a consequence of this
Agreement being otherwise terminated or modified, in any proceeding seeking to
adjudicate the Company a bankrupt or insolvent, or seeking liquidation, winding
up, reorganization, relief or composition of the Company or the debts of the
Company under any law relating to bankruptcy, insolvency or reorganization or
relief of debtors, whether such rejection, non-assumption, termination or
modification is by reason of this Agreement being held to be an executory
contract or by reason of any other circumstance. If this Agreement shall be so
rejected or otherwise not assumed, or so terminated or modified, each Lender
unconditionally and irrevocably agrees for the benefit of, and as a separate
undertaking with, the Banks and the Administrative Agent that it will pay to the
Administrative Agent an amount equal to each payment which would otherwise be
payable by the Lender under this Agreement if this Agreement were not so
rejected or otherwise not assumed or were otherwise not so terminated or
modified, such amount to be payable to the Administrative Agent at its office
specified in Section 11.2 of the Credit Agreement or otherwise in accordance
with the instructions of the Administrative Agent, as and when such payment
would otherwise be payable hereunder and such amount shall be applied to the
payment of Borrower Obligations under and as defined in the Credit Agreement.
6.2 Rights of the Banks and Administrative Agent. The Administrative
Agent or any Bank may, from time to time, at its sole discretion and without
notice to the Lenders (or any of them), without affecting any of the obligations
of the Lenders hereunder, take any or all of the following actions: (a) retain
or obtain a security interest in any property to
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secure any of the Borrower Obligations, (b) retain or obtain the primary or
secondary obligation of any obligor or obligors with respect to any of the
Borrower Obligations, (c) extend or renew any of the Borrower Obligations for
one or more periods (whether or not longer than the original period), alter or
exchange any of the Borrower Obligations, or release or compromise any
obligation of any nature of any obligor with respect to any of the Borrower
Obligations and (d) release its security interest in, or surrender, release or
permit any substitution or exchange for, all or any part of any property
securing any of the Borrower Obligations, or extend or renew for one or more
periods (whether or not longer than the original period) or release, compromise,
alter or exchange any obligations of any nature of any obligor with respect to
any such property.
6.3 Delay of Subrogation. Each of the Lenders agrees that it shall not
exercise any right of subrogation to any right of the Administrative Agent or
any Bank arising as a result of any payment made by such Lender hereunder until
such time as the Borrower Obligations (other than obligations with respect to
the Bank Note) have been paid in full and all Commitments under and as defined
in the Credit Agreement have terminated.
7. Miscellaneous.
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7.1 Legends. It is understood that the Securities may bear one or all of
the following legends:
(a) "THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR UNDER THE
SECURITIES LAWS OF CERTAIN STATES. THESE SECURITIES ARE SUBJECT TO RESTRICTIONS
ON TRANSFERABILITY AND RESALE AND MAY NOT BE TRANSFERRED OR RESOLD EXCEPT AS
PERMITTED UNDER THE ACT AND APPLICABLE STATE SECURITIES LAWS, PURSUANT TO
REGISTRATION OR EXEMPTION THEREFROM. INVESTORS SHOULD BE AWARE THAT THEY MAY BE
REQUIRED TO BEAR THE FINANCIAL RISKS OF THIS INVESTMENT FOR AN INDEFINITE PERIOD
OF TIME. THE ISSUER OF THESE SECURITIES MAY REQUIRE AN OPINION OF COUNSEL IN
FORM AND SUBSTANCE REASONABLY SATISFACTORY TO THE ISSUER TO THE EFFECT THAT ANY
PROPOSED TRANSFER OR RESALE IS IN COMPLIANCE WITH THE ACT AND ANY APPLICABLE
STATE SECURITIES LAWS."
(b) Any legend required by the Blue Sky laws of any state to the
extent such laws are applicable to the securities represented by the certificate
so legended.
7.2 1997 Voting Agreement Termination. In accordance with the terms of
that certain Voting Trust Agreement, dated as of December 30, 1997 (the "1997
Voting Agreement"), by and between the Lenders and the Company, the parties
hereto hereby terminate the 1997 Voting Agreement, which termination the Company
represents has been approved by a majority of the members of the Board of
Directors of the Company that are not employees, members or partners of any
Lender or the Company.
7.3 Successors and Assigns. Except as otherwise provided herein, the
terms and conditions of this Agreement shall inure to the benefit of and be
binding upon the respective
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successors and assigns of the parties (including transferees of any securities);
provided that no Lender shall assign its obligations hereunder without the prior
written consent of the Administrative Agent (which consent shall not be
unreasonably withheld or delayed). Nothing in this Agreement, express or
implied, is intended to confer upon any party other than the parties hereto or
their respective successors and assigns any rights, remedies, obligations, or
liabilities under or by reason of this Agreement, except as expressly provided
in this Agreement; provided that all rights and remedies granted to the
Administrative Agent pursuant hereto are intended to be for the benefit of the
Banks.
7.4 Governing Law. This Agreement is made in accordance with and shall
be construed under the laws of the State of New York, other than the conflicts
of laws principles thereof.
7.5 Counterparts. This Agreement may be executed in two or more
counterparts, and by facsimile, each of which shall be deemed an original, but
all of which together shall constitute one and the same instrument.
7.6 Notices. Any notice required or permitted under this Agreement shall
be given in writing and shall be deemed effectively given upon personal delivery
to the party to be notified or four (4) business days after deposit with the
United States Post Office, by registered or certified mail, postage prepaid and
addressed to the party to be notified at the address indicated for such party,
in the case of the Company and the Administrative Agent, on the signature page
hereto, and in the case of each Lender, on Schedule A hereto, or at such other
address as such party may designate by advance written notice to the other
parties.
7.7 Entire Agreement. This Agreement and the Notes, and the documents
delivered pursuant hereto or thereto, constitute the entire agreement among the
parties hereto and no party shall be liable or bound to any other party in any
manner by any warranties, representations, or covenants except as specifically
set forth herein or therein.
7.8 Amendment and Waiver. Any provision of this Agreement may be amended
or waived if, but only if, such amendment or waiver is in writing and is signed,
in the case of an amendment, by each party to this Agreement, or in the case of
a waiver, by the party against whom the waiver is to be effective. No failure or
delay by any party in exercising any right, power or privilege hereunder shall
operate as a waiver thereof nor shall any single or partial exercise thereof
preclude any other or further exercise thereof or the exercise of any other
right, power or privilege. The rights and remedies herein provided shall be
cumulative and not exclusive of any rights or remedies provided by law. This
Agreement shall inure to the benefit of and bind the successors, permitted
assigns, heirs, executors, and administrators of the Company, each Lender and
the Administrative Agent. Failure of any party hereto to assert any right herein
shall not be deemed to be a waiver thereof.
7.9 Severability. If one or more provisions of this Agreement are held
to be unenforceable under applicable law, such provision shall be excluded from
this Agreement and the balance of the Agreement shall be interpreted as if such
provision were so excluded and shall be enforceable in accordance with its
terms.
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7.10 Survival. The representations, warranties, covenants and agreements
made herein shall survive the Closing of the transactions contemplated hereby.
7.11 Assignment to Administrative Agent. The Lenders acknowledge that
the Company has previously assigned to the Administrative Agent, and granted the
Administrative Agent a continuing security interest in, all of its personal
property, including its rights under this Agreement. In furtherance of the
foregoing (and without limiting any right of the Administrative Agent under the
Guaranty and Collateral Agreement (as defined in the Credit Agreement) or
applicable law), the Company hereby assigns to the Administrative Agent, and
grants to the Administrative Agent a security interest in, all of its rights
under this Agreement, including, without limitation, the right to exercise the
Put Right, the right to give notice of the exercise of the Put Right and the
right to receive the proceeds of the purchase and sale of the Notes. The Lenders
hereby acknowledge the foregoing assignment and grant, and the Company and the
Lenders agree that the Administrative Agent shall have, and be permitted to
exercise, all of the rights of the Company hereunder without any consent of the
Company, any Lender or any other person or entity.
7.12 WAIVER OF JURY TRIAL. THE LENDERS, THE COMPANY, THE ADMINISTRATIVE
AGENT AND (BY ACCEPTING THE BENEFITS HEREOF) THE BANKS HEREBY WAIVE ANY RIGHT TO
A TRIAL BY JURY IN ANY ACTION OR PROCEEDING TO ENFORCE OR DEFEND ANY RIGHTS
UNDER THIS AGREEMENT AND ANY AMENDMENT, INSTRUMENT, DOCUMENT OR AGREEMENT
DELIVERED OR WHICH MAY IN THE FUTURE BE DELIVERED IN CONNECTION HEREWITH OR
ARISING FROM ANY FINANCING RELATIONSHIP EXISTING IN CONNECTION WITH ANY OF THE
FOREGOING, AND AGREE THAT ANY SUCH ACTION OR PROCEEDING SHALL BE TRIED BEFORE A
COURT AND NOT BEFORE A JURY.
* * * * *
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IN WITNESS WHEREOF, the parties have executed this Option Agreement as
of the date first above written.
XXXXX & XXXXX COMPANY
By:/s/ Xxx Xxxxx
------------------
Name: Xxx Xxxxx
Title: CFO
Address:
ACCEPTED AND AGREED:
WARBURG, XXXXXX INVESTORS, L.P.
By:/s/ Xxxx X. Xxxxxxxxx
-------------------------
Name: Xxxx X. Xxxxxxxxx
Title: Partner
BANK OF AMERICA, N.A.,
as Administrative Agent
By:/s/ W. Xxxxxx Xxxxxxx
-------------------------
Name: W. Xxxxxx Xxxxxxx
Title: Managing Director
Address:
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SCHEDULE A
Principal Amount of
Investor Name and Address Notes
--------------------------------- -------------------
Warburg, Xxxxxx Investors, L.P. $6,000,000
Total $6,000,000
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EXHIBIT A
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Form of Certificate of Designation
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EXHIBIT B
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Form of Convertible Promissory Note
-----------------------------------
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DISCLOSURE SCHEDULE
The Company's equity securities are currently listed on the New York Stock
Exchange pursuant to a listing agreement (the "Listing Agreement"). The Company
does not intend to obtain stockholder approval in connection with the
transactions contemplated by the Option Agreement to which this Disclosure
Schedule is annexed.
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