PUT OPTION AGREEMENT
Exhibit 10.2
This PUT OPTION AGREEMENT (this “Agreement”) is entered into as of the 23 day of June, 2011 by and between Counsel RB Capital Inc., a Florida corporation (“Corporation”), and The Xxxxxxx Company, LLC, a Maryland limited liability company (the “Optionee”).
WHEREAS, the Optionee is acquiring twenty seven thousand three hundred twenty two (27,322) shares of the common stock of the Corporation (the “Purchased Shares”), pursuant to the terms of the Asset Purchase Agreement dated of even date herewith by and among the Optionee and certain other parties (the “Asset Purchase Agreement”) and the option to purchase twenty thousand (20,000) shares of the common stock of the Corporation, pursuant to the terms of the Option Agreement dated of even date herewith by and among Optionee and certain other parties (the “Option Agreement”).
NOW, THEREFORE, in consideration of the promises and mutual covenants herein contained and other good and valuable consideration, the parties hereto agree as follows:
1. Grant of Put Option. The Corporation hereby grants to the Optionee an option (the “Put Option”) to require the Corporation to purchase all, but not less than all, of the Shares and cancel the Option Agreement in exchange for one hundred fifty thousand dollars ($150,000). The price paid to Optionee pursuant to the Put Option shall be hereinafter referred to as “Put Option Price”. The Put Option must be exercised, if at all, on September 12, 2011 (the “Put Option Exercise Date”) by notice given pursuant to Section 2. The Put Option may not be exercised if any of the Purchased Shares have been transferred to a third party, or if the Option Agreement has been exercised in whole or in part.
2. Exercise of Option.
(a) Optionee may exercise the Put Option only on the Put Option Exercise Date, by delivering to the Corporation written notice of exercise, not more than sixty (60) days and not less than thirty (30) days, prior to the Put Option Exercise Date.
(b) The closing of the sale and purchase of the Purchased Shares pursuant an exercise of the Put Option (the “Closing”) will occur on the Put Option Exercise Date. At the Closing, the Optionee will: (i) deliver to the Corporation the certificate(s) or other document(s) evidencing the Shares to be acquired by Corporation, accompanied by stock powers executed in blank and otherwise will take such action and deliver such documentation as may be reasonably necessary in order to transfer to the Corporation good and marketable title to such Shares, free and clear of any and all liens, claims encumbrances of any nature; and (ii) execute termination document(s) provided by the Corporation for the Option Agreement.
(c) The Corporation will satisfy the Put Option Price by wire transfer of the amount thereof in immediately available funds to Optionee’s designated bank account. For the avoidance of doubt, if the amount of Purchased Shares shall increase or decrease because of any stock split of the common stock of the Corporation, this Put Option shall apply to the amount of increased or decreased Purchased Shares.
3. Representations of Optionee. Optionee represents and warrants to the Corporation as follows:
(a) Optionee has all requisite corporate power and authority to execute and deliver this Agreement, to perform its obligations hereunder and to consummate the transactions contemplated hereby. The execution, delivery and performance of this Agreement and the consummation of the transactions contemplated hereby will not violate any provision of the articles of incorporation or bylaws, or similar organizational documents, of Optionee.
(b) Upon any exercise of the Put Option, Optionee will be the legal and beneficial owner of, and shall at Closing convey to the Corporation hereunder good and marketable title to, the Purchased Shares being sold pursuant to such exercise, free and clear of any claim, lien, option, charge or encumbrance of any nature whatsoever. Upon any exercise of the Put Option, Optionee will have full power, authority and capacity to sell the Purchased Shares being sold pursuant to such exercise to Corporation in accordance with the terms and provisions of this Agreement and applicable law.
4. Representations of Corporation. The Corporation represents and warrants to Optionee as follows:
(a) The Corporation has all requisite corporate power and authority to execute and deliver this Agreement, to perform its obligations hereunder and to consummate the transactions contemplated hereby.
(b) The execution and delivery of this Agreement, the performance of the Corporation’s obligations hereunder and the consummation of the transactions contemplated hereby have been duly and validly authorized by the Board of Directors of the Corporation, and no other corporate proceedings or actions on the part of the Corporation, the Board of Directors of the Corporation or the shareholders of the Corporation are necessary to authorize the execution and delivery of this Agreement or to perform the Corporation’s obligations hereunder.
(c) The execution, delivery and performance of this Agreement and the consummation of the transactions contemplated hereby will not violate any provision of the articles of incorporation or bylaws, or similar organizational documents, of the Corporation.
5. Governing Law. This Agreement shall be governed by and construed in accordance with the substantive laws of the State of New York and without regard to its laws concerning choice of law.
6. Arbitration. Any controversy or claim arising out of or relating to this Agreement shall be settled exclusively by arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association then in effect. The decision of the arbitrator shall, except for mistakes of law, be final and binding upon the parties hereto, and judgment upon the award rendered by the arbitrator, which shall, in the case of damages, be limited to actual damages proven in the arbitration, may be entered in any court having jurisdiction thereof.
7. Notices. All notices and other communications given or made pursuant to this Agreement shall be in writing and deemed effectively given upon the date of personal delivery or one business day following sending by overnight delivery via a national courier service, addressed to the following at:
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To the Corporation:
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Attn: Xxxxxxxx Xxxxx
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000 Xxxxxxx Xxxxxx
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Xxxxx Xxxxxx, Xxx Xxxx 00000
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Phone: 000.000.0000
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With a copy to:
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Counsel Corporation
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Attn: R. Xxxx Xxxx
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0 Xxxxxxx Xxxxxx, Xxxxx 000
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Xxxxxxx XX X0X 0X0
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Xxxxxx
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Phone: 000.000.0000
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and
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Xxxxxxx Xxxxxx Xxxx Xxxxxxx & Manner, P.C.
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Attn: Xxxxxx Xxxxxxxx
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000 Xxxxxxxxx Xxxxxx, Xxxxx 0000
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Xxxxxxxxx, Xxxxxxxxx 00000
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Phone: 000.000.0000
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Fax: 000-000-0000
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To Optionee:
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The Xxxxxxx Company, LLC
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Attn: Xxx Xxxxxxx
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Address:
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Phone:
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Fax:
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8. Successors and Assigns. This Agreement shall inure to the benefit of and be binding upon the heirs, legal representatives, successors, and assigns of each of the parties.
9. Multiple Counterparts. This Agreement may be executed in multiple counterparts, each of which shall be deemed an original for all purposes, but all of which together shall constitute one and the same instrument.
10. Entire Agreement. This Agreement constitutes the entire agreement of the parties, and supersedes all prior agreements, understandings, or documents, with respect to the subject matter hereof.
11. Interpretation. All pronouns and any variation thereof shall be deemed to refer to the masculine, feminine, neuter, singular or plural as the identity of the person or entity, or the context, may require. Further, it is acknowledged by the parties that this Agreement including exhibits, if any, has undergone several drafts with the negotiated suggestions of both; and, therefore, no presumptions shall arise favoring either party by virtue of the authorship of any of its provisions or the changes made through revisions.
12. Titles and Subtitles. The titles and subtitles used in this Agreement are used for convenience only and are not to be considered in construing or interpreting this Agreement.
13. Expenses. Each party hereto will bear its own expenses incurred in connection with the preparation, negotiation and execution of this Agreement and the consummation of the transactions contemplated hereby.
14. Amendment. No provision of this Agreement may be amended, waived, changed, or modified except by an agreement in writing signed by Optionee and the Corporation, or in the case of a waiver, by the party waiving compliance.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed in multiple originals effective as of the date first set forth above.
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CORPORATION:
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By:
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Name:
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Title:
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OPTIONEE:
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THE XXXXXXX COMPANY, LLC
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By:
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Name:
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Title:
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[Signature Page to Put Option Agreement]
