SERVICE AND REPURCHASE AGREEMENT
Exhibit
10.3
This
Master Services Agreement (the “Agreement”), is entered into as of January 31,
2007, by and between Optionable, Inc., a Delaware corporation (“Optionable”),
Opex International, Inc., a New York Corporation (“OPEX”), and Xxxxx D’Xxxxxx, a
shareholder of OPEX.
WHEREAS,
Optionable owns and operates an Over-the-Counter (“OTC”) derivatives brokerage
business;
WHEREAS,
OPEX operates a Natural Gas and Crude Oil brokerage business on the floor of the
New York Mercantile Exchange (the “Floor Brokerage Business”);
WHEREAS,
Optionable will provide business development, support, and administrative
services to OPEX for a fee;
WHEREAS,
Xxxxx D’Xxxxxx owns 51% of the issued and outstanding shares of common stock of
OPEX for an initial investment of $5,100;
WHEREAS,
Optionable owns 49% of the issued and outstanding shares of common stock of OPEX
and 100% of the issued and outstanding shares of preferred stock of OPEX, for a
total investment of $494,900;
WHEREAS,
the parties wish to restrict the share ownership of OPEX to its current
owners;
NOW,
THEREFORE, for good and valuable consideration, the receipt and adequacy of
which are hereby acknowledged, the parties hereby agree as follows:
1. Floor Brokerage
Services: Optionable will provide business development, support, and
administrative services to OPEX in support of the Floor Brokerage
Business. In consideration for such services, Optionable will charge
to OPEX the following:
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110%
of the business development, support, and administrative services expenses
incurred directly and indirectly by Optionable in connection with the
floor brokerage business of OPEX. Such expenses include, but
are not limited to, fixed and variable compensation of personnel
associated with the floor brokerage business, business development
expenses, sales and marketing expenses, seat lease, and a portion of the
administrative costs incurred by Optionable to support the floor business
brokerage.
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This
charge is payable monthly in arrears to Optionable, out of available
working capital of OPEX. Optionable shall send a reasonably
detailed invoice to OPEX on or before the tenth business day of each
month, setting forth the charges for the immediately prior
month.
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All
invoices shall be due and payable within 30 calendar
days. Unpaid amounts shall bear interest at the rate of 9% a
month from and after such 30th
day until paid in full.
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2. Xxxxx
D’Xxxxxx hereby grants Optionable an option to purchase his 5,100 shares of OPEX
for $20,400. This option may be exercised by Optionable at any time
during a term (the “Term”) commencing on the date hereof and terminating 10
years from the date hereof.
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The
option may only be exercised for the entire 5,100 shares; partial
exercises are not permitted.
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The
option shall be exercised by delivery of the Exercise Notice, attached
hereto as Exhibit A, to Xxxxx D’Xxxxxx (or to his executor or legal
representative, in the event he is deceased or disabled), together with
the full purchase price.
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Xxxxx
D’Xxxxxx shall deliver to Optionable the certificate(s) representing the
5,100 shares within five days after delivery of the Exercise
Notice. If the certificates are not timely delivered, they
shall be deemed cancelled, and Optionable shall be entitled to a new
certificate for the 5,100 shares, and shall be deemed to be the bona fide
owner thereof for all intents and
purposes.
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In
the event Xxxxx D’Xxxxxx resigns from his position at OPEX, Xxxxx D’Xxxxxx
must give 90 days notice to OPEX’s board of
directors.
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3. Xxxxx
D’Xxxxxx may only sell his shares to Optionable. In addition, it is
the intent of the parties that, upon exercise of its option, Optionable will be
transferred ownership of the 5,100 shares free and clear of all liens and
encumbrances. Accordingly, Xxxxx D’Xxxxxx agrees not to borrow
against, permit a lien to be placed on, or otherwise directly or indirectly
encumber his shares. In addition, during the Term of the option OPEX
shall not issue any additional shares of its capital stock (including
instruments exercisable for, or convertible into, shares of its capital stock),
without the prior written consent of Optionable.
4. Representations and
Warranties
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a.
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Optionable
hereby represents and warrants
that:
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i.
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it
has all requisite corporate or other power and authority to execute and
deliver this Agreement and to perform its obligations hereunder;
and
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ii.
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this
Agreement has been duly executed and delivered by Optionable and
constitutes the legal, valid and binding obligation of Optionable,
enforceable against it in accordance with its terms, except as
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or other laws relating to or affecting the
rights and remedies of creditors generally and by general principles of
equity (regardless of whether in equity or at
law).
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b.
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OPEX
hereby represents and warrants
that:
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i.
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it
has all requisite corporate or other power and authority to execute and
deliver this Agreement and to perform its obligations hereunder;
and
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ii.
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this
Agreement has been duly executed and delivered by OPEX and constitutes the
legal, valid and binding obligation of OPEX, enforceable against it in
accordance with its terms, except as enforceability may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium or other
laws relating to or affecting the rights and remedies of creditors
generally and by general principles of equity (regardless of whether in
equity or at law).
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c.
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Xxxxx
D’Xxxxxx hereby represents and warrants
that:
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i.
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he
has all requisite power and authority to execute and deliver this
Agreement and to perform his obligations
hereunder;
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ii.
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this
Agreement has been duly executed and delivered by him and constitutes the
legal, valid and binding obligation of him, enforceable against him in
accordance with its terms, except as enforceability may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium or other
laws relating to or affecting the rights and remedies of creditors
generally and by general principles of equity (regardless of whether in
equity or at law);
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iii.
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he
is the record and beneficial owner of the 5,100 shares, which he owns free
and clear of all liens and
encumbrances.
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5. Board of
Directors
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a.
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The
Board of Directors of OPEX shall consist of three members, two of whom
shall be designees of Optionable (the “Optionable Directors”) and one of
whom shall be a designee of Xxxxx D’Xxxxxx (the “OPEX
Director”). The Optionable Directors may not be removed or
replaced, except (i) by action of Optionable or (ii) upon termination or
expiration of this Agreement.
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b.
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The
initial Optionable Directors shall be Xxxxx Xxxxxxx and Xxxxxx X.
X’Xxxxxx. The initial OPEX Director shall be Xxxxx
D’Xxxxxx.
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c.
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OPEX
and Xxxxx D’Xxxxxx shall take all appropriate action to ensure that the
OPEX charter documents are appropriately modified, if necessary, to
effectuate the actions required by this Section
5.
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6. Termination
The
obligations of the parties under Section 1 of this Agreement shall terminate
upon the occurrence of the following events:
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Bankruptcy,
receivership, or dissolution of OPEX or
Optionable;
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The
purchase by Optionable of all the stock of
OPEX
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The
death, disability, expulsion, bankruptcy, resignation, or retirement and
the payment in full of the purchase price
therefore.
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Notwithstanding
the foregoing, Optionable’s rights under its option shall not terminate until
the expiration of the option’s Term.
Termination
of this Agreement does not affect a party’s accrued rights and obligations at
the date of termination.
7. Miscellaneous
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a.
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Neither
party shall make any disclosure relating to this Agreement or its terms
(collectively, “Confidential Information”) to a third party (other than
the party’s employees, agents, affiliates, accountants or professional
advisors who have a need to know such information and have agreed to keep
such terms confidential) without the prior approval of the other party,
except (i) as may be required by law or otherwise in connection with
discussions with regulators or other governmental authorities, including
any regulated exchange, or (ii) at such time as such Confidential
Information becomes known by the general public (or generally known within
the financial services, trading or commodity markets communities) other
than through violation of this
paragraph.
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b.
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This
Agreement may not be modified or amended except by an instrument or
instruments in writing signed by each of the parties, and no provision of
this Agreement may be waived except in a writing signed by the relevant
party.
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c.
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This
Agreement constitutes the entire agreement and understanding of the
parties with respect to its subject matter and supersedes all oral
communication and prior writings with respect
thereto.
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d.
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All
notices required or permitted hereunder shall be in writing and shall be
deemed effectively given: (a) upon personal delivery to the party to be
notified, (b) when sent by confirmed electronic mail, telex or facsimile
if sent during normal business hours of the recipient, if not, then on the
next business day, (c) five days after having been sent by registered or
certified mail, return receipt requested, postage prepaid, or (d) one day
after deposit with a nationally recognized overnight courier, specifying
next day delivery, with written verification of receipt. All
communications shall be sent:
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If to
Optionable:
Optionable,
Inc.
000
Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxx,
XX 00000
Attn: Xxxxx X. Xxxxxxx,
Chief Executive Officer
Fax: (000)
000-0000
If to
OPEX:
000
Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxx,
XX 00000
Attn: _____________________
Fax: (000)
000-0000
If to
Xxxxx D’Xxxxxx:
000
Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxx,
XX 00000
Fax: (000)
000-0000
or at
such other address the Company or the Purchaser may designate by ten days
advance written notice to the other parties hereto.
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e.
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[Signatures
appear on the following page]
IN
WITNESS WHEREOF, this Agreement has been signed by or on behalf of each of the
parties as of the day first above written.
OPTIONABLE,
INC.
By: /s/
Xxxxx X.
Xxxxxxx
Name: Xxxxx X. Xxxxxxx
Title: Chief Executive
Officer
OPEX
INTERNATIONAL, INC.
By: /s/
Xxxxx
D’Xxxxxx
Name: Xxxxx D’Xxxxxx
XXXXX
D’XXXXXX
/s/ Xxxxx
D’Xxxxxx
Exhibit
A
OPEX
INTERNATIONAL, INC.
NOTICE OF
EXERCISE OF STOCK PURCHASE OPTION
The undersigned hereby exercises the
Stock Purchase Option granted by Xxxxx D’Xxxxxx and hereby purchases 5,100
shares of Common Stock of Opex International, Inc. pursuant to said
Option.
Enclosed is a check in the sum of
$20,400 in full payment for such shares.
OPTIONABLE,
INC.
By:______________________________
Name:
Title:
Date:____________________________