RIGHT OF FIRST REFUSAL AND CORPORATE OPPORTUNITIES AGREEMENT
RIGHT
OF FIRST REFUSAL AND
CORPORATE
OPPORTUNITIES AGREEMENT
THIS
RIGHT OF FIRST REFUSAL AND CORPORATE OPPORTUNITIES AGREEMENT (this “Agreement”)
is
made as of _______, 2006, by and between Doubloon Corp., a Delaware corporation
(the “Company”),
PIRAC
I, LLC, a Delaware limited liability company (“PIRAC”),
and
Xxxxxx Xxxxxxx LLC, a Delaware limited liability company (“Pirate”,
and
collectively with PIRAC, “Sponsor”).
RECITALS
WHEREAS,
the Company and Sponsor share certain officers and directors and, as the Company
and Sponsor will be seeking business opportunities, the parties have made this
Agreement to clarify the business opportunities for which each party shall
have
the right of first refusal; and
WHEREAS,
the Company seeks to acquire a right of first refusal to certain corporate
opportunities belonging to Sponsor in return for granting Sponsor a right of
first refusal to certain corporate opportunities belonging to the
Company.
NOW,
THEREFORE, in consideration of the mutual covenants and agreements set forth
herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
1. Right
of First Refusal.
(a) For
the term specified in Section
3
of this
Agreement, the Company, on the one hand, hereby grants to Sponsor, and Sponsor,
on the other hand, grants to the Company, a right of first refusal to any
corporate opportunities belonging to it that concern a Business Combination
(as
defined herein) as follows:
(i) Sponsor
shall have a right of first refusal with respect to Business Combinations that
relate to publicly-traded companies; and
(ii) The
Company shall have a right of first refusal with respect to Business
Combinations that relate to privately owned companies.
(b)
As used
herein, the term “Business
Combination”
(as
described more fully in the Registration Statement) shall mean any acquisition,
through a merger, capital stock exchange, asset acquisition, stock purchase
or
other similar business combination, of one or more operating businesses; a
“publicly-trade company” is an entity whose securities are traded on a stock
exchange or in the over-the-counter market; and a “privately owned company” is
an entity whose securities are not traded on a stock exchange or in the over-the
counter market and includes a subsidiary or operating division of a
publicly-traded company.
(c)
The
party that has the duty to provide the right of first refusal to the other
party
(the “Grantor”)
shall
provide written notice of the possible Business Combination to the party to
whom
it has the duty to grant the right of first refusal (the “Grantee”)
within
five business days after it has acquired knowledge of the same. Unless earlier
released by the Grantee, any right of first refusal granted pursuant to this
Agreement shall expire 90 days after the Grantor provides written notice to
the
Grantee of the proposed opportunity, provided that, in that 90-day period
following written notice, the Grantee has failed to commence discussions with
third parties regarding the possible Business Combination.
(d) Decisions
by the Company to release Sponsor to pursue any opportunity will be made by
a
majority of the Company’s independent directors.
2. Term.
This
Agreement shall become effective on its execution and shall remain in effect
for
a period to expire upon the earlier of (i) the consummation by the Company
of
its first Business Combination, (ii) the Company’s liquidation, or (iii) two
years after the execution of this Agreement.
3. Notices.
All
notices or communications hereunder shall be in writing, addressed as follows:
To
the
Company:
000
Xxxxxxxxxxx Xxxxxx
0xx
Xxxxx
Xxxxxxx,
Xxxxxxxxxxx 00000
Attention:
Chief Executive Officer
with
copies to:
Xxxxxxx
X. Xxxxxxx, Xx., Esq.
Xxxxx
Xxxxx Xxxx Xxxxxx Xxxxxxx & Xxxxx, P.C.
000
Xxxxx
Xxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
If
to
Sponsor:
Xxxxxx
Xxxxxxx LLC
000
Xxxxxxxxxxx Xxxxxx
0xx
Xxxxx
Xxxxxxx,
Xxxxxxxxxxx 00000
Attention:
Xxxxxxxxxxx Xxxxx, Esq.
Any
such
notice or communication shall be delivered by hand or by overnight courier
or
sent certified or registered mail, return receipt requested, postage prepaid,
addressed as above (or to such other address as such party may designate in
a
notice delivered as described above). Any notice delivered by hand shall be
deemed effective upon receipt; any notice delivered by overnight courier shall
be deemed effective on the business day after delivery to the courier; and
any
notice delivered by certified or registered mail shall be deemed to be delivered
on the third business day after the certification or registration
thereof.
4. Severability.
If any
provision of this Agreement shall be declared to be invalid or unenforceable,
in
whole or in part, such invalidity or unenforceability shall not affect the
remaining provisions hereof which shall remain in full force and effect.
5. Assignment;
Binding Effect.
No party
may assign its rights or obligations under this Agreement without the prior
written consent of the other parties hereto. This Agreement shall be binding
upon and inure to the benefit of the parties hereto and their respective
successors and permitted assigns.
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6. Amendment.
This
Agreement may only be amended by written agreement of the parties hereto.
7. Survival.
The
respective rights and obligations of the parties hereunder shall survive any
termination of this Agreement to the extent necessary to the intended
preservation of such rights and obligations. The provisions of this Section
7
are in
addition to the survivorship provisions of any other section of this Agreement.
8. Governing
Law.
This
Agreement shall be construed, interpreted, and governed in accordance with
the
laws of the State of New York, without reference to rules relating to conflicts
of law.
9. Effect
on Prior Agreements.
This
Agreement contains the entire understanding between the parties hereto and
supersedes in all respects any prior or other agreement or understanding
concerning the subject matter hereof between the Company and Sponsor.
10. Counterparts;
Facsimile Signatures.
This
Agreement may be executed in two or more counterparts, each of which will be
deemed an original, but all of which, taken together, shall be deemed one
document. Facsimile signatures shall constitute original signatures for all
purposes of this Agreement.
11. Mutual
Waiver of Jury Trial.
DISPUTES ARISING IN CONNECTION WITH COMPLEX FINANCIAL TRANSACTIONS ARE MOST
QUICKLY AND ECONOMICALLY RESOLVED BY AN EXPERIENCED AND EXPERT PERSON. THE
PARTIES WISH APPLICABLE LAWS TO APPLY (RATHER THAN ARBITRATION RULES) AND THE
PARTIES DESIRE THAT THEIR DISPUTES BE RESOLVED BY A JUDGE APPLYING SUCH
APPLICABLE LAWS. THEREFORE, TO ACHIEVE THE BEST COMBINATION OF THE BENEFITS
OF
THE JUDICIAL SYSTEM AND OF ARBITRATION, THE PARTIES HERETO WAIVE ALL RIGHT
TO
TRIAL BY JURY IN ANY ACTION, SUIT OR PROCEEDING BROUGHT TO ENFORCE OR DEFEND
ANY
RIGHTS OR REMEDIES UNDER THIS AGREEMENT OR ANY DOCUMENTS RELATED HERETO.
(Remainder
of page intentionally left blank. Signature pages to follow.)
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IN
WITNESS WHEREOF, the parties hereto have executed this Right of First Refusal
and Corporate Opportunities Agreement as of the date first specified
above.
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PIRAC
I, LLC
By:
Xxxxxx Xxxxxxx LLC, Member
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By:
__________________________________
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By:
_____________________________
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Name:
Xxxxxx
X. Xxxxxx Xx.
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Name:
Xxxxxx
X. Xxxxxx Xx.
|
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Title:
Chief
Executive Officer
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Title:
Managing
Member
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XXXXXX
XXXXXXX LLC
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By:
_____________________________
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Name: Xxxxxx
X. Xxxxxx Xx.
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Title:
Managing
Member
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