EXHIBIT 10.77
OPTION AGREEMENT
THIS OPTION AGREEMENT (the "Agreement") is made and entered into as of
January 7, 2003, by and between TMRC, L.L.P., a Missouri limited liability
partnership ("Holder") and Xxxxxx X. Xxxxxxx, an individual residing in the
state of Texas ("Grantor").
Recitals
WHEREAS, Grantor and other shareholders of Xxxxxx Boats & Motors, Inc.,
a Texas corporation (the "Company") have created a voting trust (the "Voting
Trust") pursuant to a Voting Trust Agreement dated as of the date hereof into
which Grantor and such shareholders have deposited all of their shares of the
common stock, par value $0.01 per share, of the Company (the "Common Stock") in
exchange for voting trust certificates (each, a "Certificate") evidencing the
beneficial ownership of such deposited shares; and
WHEREAS, in order to induce the Holder to enter into certain financial
arrangements with the Company, Grantor desires to grant to Holder the right to
purchase certain of Grantor's Certificates.
Agreement
NOW THEREFORE, in consideration of the recitals and mutual
representations, warranties, covenants and agreements contained herein, and for
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, and subject to the terms and conditions hereof, the
parties, intending to be legally bound, hereby agree as follows:
1. Grant of Option. Grantor hereby grants to Holder the option (the
"Option") to purchase Certificates representing up to the lesser of (a) thirty
percent (30%) of the shares of Common Stock deposited by Grantor into the Voting
Trust and (b) the number of shares (pro rata among all other grantors of an
Option to Holder) required at the time of exercise to give Holder 51% or more of
the common stock of the Company, on a fully-diluted, as if converted, basis, in
either case, at an exercise price equal to $1.20 multiplied by the number of
shares of Common Stock underlying the Certificates to be purchased.
2. Term of Option. This Option and all rights to purchase the
Certificates hereunder shall expire at the close of business on March 31, 2003
(the "Expiration Date"). To the extent that this Option has not been exercised
in full prior to the Expiration Date, it shall terminate and become void and of
no effect.
3. Exercisability and Non-transferability of Option. This Option shall
be exercisable in whole or from time to time in part during the term hereof.
This Option and all rights hereunder shall be non-assignable and
non-transferable. Any attempted transfer, assignment, pledge, hypothecation or
other disposition of this Option, except as provided herein, shall be null and
void and without effect.
4. Method of Exercise of Option. The Holder may exercise the Option, in
whole or in part, by delivery to the Grantor of a written notice of its election
to exercise the Option (the "Exercise Notice"), identifying that number of
shares of Common Stock underlying the Certificates as to which such exercise is
then being sought, which number may not exceed the number of underlying shares
of Common Stock as to which the Option may then be exercised, taking into
account any and all prior partial exercises of the Option. The Exercise Notice
must be accompanied by surrender of the original of this Agreement for notation
by the Grantor and return to the Holder, as appropriate. The effective date of
exercise of the Option as to which an Exercise Notice has been given (the
"Exercise Date") shall be the later of the date the Grantor receives the
Exercise Notice and the date Grantor receives payment in full of the Exercise
Price for the Certificates as to which the Option is being exercised.
5. Delivery of New Certificates. On the Exercise Date, the Grantor
shall (a) issue written notice to the trustee of the Voting Trust of such
transfer, (b) instruct the trustee to record such transfer in the books and
records of the Voting Trust, and (c) submit to the trustee the Grantor's
Certificates purchased hereunder, accompanied by any transfer documents as may
be requested by the trustee, to permit the trustee to issue and deliver to
Holder a Certificate representing the number of underlying shares of Common
Stock as to which the Option has thus been exercised and to re-issue and deliver
to Grantor a Certificate representing the balance of Grantor's holdings within
the Voting Trust.
6. Grantor Representations. Grantor hereby represents and warrants to
Holder that (a) all shares of Common Stock underlying the Certificates held by
Grantor are beneficially owned by Grantor, are validly issued, fully paid and
non-assessable, and are free and clear of any liens, pledges, charges, security
interests or encumbrances of any kind, or any other type of preferential
arrangement that has the practical effect creating an encumbrance on such shares
of Common Stock. (b) this Agreement is a valid and binding obligation of Grantor
enforceable against Grantor in accordance with its terms, and (c) Grantor has
the absolute and unrestricted right, power, authority and capacity to execute
and deliver this Agreement and to perform Grantor's obligations under this
Agreement.
7. Notices. All notices, requests, waivers and other communications
made pursuant to this Agreement shall be in writing and shall be conclusively
deemed to have been duly given (a) when hand delivered to the other party; (b)
when received when sent by facsimile at the address and number set forth below;
(c) three (3) business days after deposit in the U.S. mail with first class or
certified mail receipt requested postage prepaid and addressed to the other
party as set forth below; or (d) the next business day after deposit with a
national overnight delivery service, postage prepaid, addressed to the parties
as set forth below with next-business-day delivery guaranteed, provided that the
sending party receives a confirmation of delivery from the delivery service
provider.
To Holder: To Grantor:
TMRC, L.L.P. c/o
Tracker Marine, L.L.C.
0000 Xxxx Xxxxxxx Xxxxxx
Xxxxxxxxxxx, Xxxxxxxx 00000
Attn: Xxx Xxxxxxxxx
Fax Number: (000) 000-0000
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With copies to:
Gallop, Xxxxxxx & Xxxxxx, X.X.
000 X. Xxxxxx, Xxxxx 0000
Xxxxx Xxxxx, Xxxxxxxx 00000
Attn: Xxxxxx X. Xxxxxx, Esq.
Fax Number: (000) 000-0000
Each person making a communication hereunder by facsimile shall promptly confirm
by telephone to the person to whom such communication was addressed each
communication made by it by facsimile pursuant hereto but the absence of such
confirmation shall not affect the validity of any such communication. A party
may change or supplement the addresses given above, or designate additional
addresses, for purposes of this Section 7 by giving the other party written
notice of the new address in the manner set forth above.
8. Applicable Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Missouri, without regard to its
conflicts of laws and choice of laws principles.
9. Amendment. This Agreement may be amended by written agreement of
Holder and Grantor without consent of any other person.
10. Counterparts. For the convenience of the parties, any number of
counterparts of this Agreement may be executed by the parties hereto and each
such executed counterpart shall be, and shall be deemed to be, an original
instrument.
(Remainder of Page Intentionally Left Blank)
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The parties have executed this Agreement as of the date reflected on the first
page of this Agreement.
"GRANTOR"
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ACCEPTED:
TMRC, L.L.P.
By:
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Name:
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Title:
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