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EXHIBIT 10.13
OPTION AGREEMENT
HUNTWAY PARTNERS, L.P.
December 30, 1996
Xx. Xxxxx Xxxxxx
c/o Alliance Financial Corp.
0000 Xxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Re: Huntway Partners, L.P.
Unit Option
Dear Xx. Xxxxxx:
The Company is pleased to advise you that General Partner has granted
to you a unit option, as provided below. Such unit option is the unit option
referred to and issued in connection with the Company's plan of reorganization
filed with the United States Bankruptcy Court for the District of Delaware.
1. Definitions. For the purposes of this Agreement, the following terms
shall have the meanings set forth below:
"Agreement" means this Agreement dated as of December 30, 1996, between
you and the Company.
"Common Unit" shall mean the Company's common limited partnership
units, or, in the event that the outstanding Common Unit is hereafter changed
into or exchanged for different stock or securities of the Company, such other
stock or securities.
"Company" shall mean Huntway Partners, L.P., a Delaware limited
partnership.
"General Partner" shall mean Huntway Managing General Partner, L.P.,
the Company's managing general partner.
"Option Units" shall mean (i) all Common Units issued upon the exercise
of the Option and (ii) all Common units issued with respect to the Common Units
referred to in clause (i) above by way of unit dividend or unit split or in
connection with any conversion, merger, consolidation or recapitalization or
other reorganization fundamentally affecting the Common Units. Option Units
shall continue to be Option Units in the hands of any holder other than you
(except for the Company), and each such transferee
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thereof shall succeed to the rights and obligations of a holder of Option Units
hereunder.
"Securities Act" shall mean the Securities Act of 1933, as amended, and
any successor statute.
2. Option.
(a) Terms. Your Option is for the purchase of up to 600,000 Common
Units (the "Option") at a price per share of $0.50 (the "Exercise Price"),
payable upon exercise as set forth in paragraph 2(b) below. Your Option shall
expire at the close of business on December 30, 2006 (the "Expiration Date") and
in no event shall any part of your Option be exercisable after the Expiration
Date.
(b) Payment of Option Price. Your Option may be exercised in whole or
in part after the date hereof upon payment of an amount (the "Option Price")
equal to the product of (i) the Exercise Price multiplied by (ii) the number of
Option Units to be acquired. Payment shall be made in full by delivery of a
cashier's check, certified check or wire transfer of immediately available funds
in the amount of the Option Price.
3. Procedure for Exercise. At any time prior to the Expiration Date,
you may exercise all or a portion of your Option by delivering written notice to
the Company (to the attention of the Company's Secretary), together with (i) a
written acknowledgment that you have read and have been afforded an opportunity
to ask questions of management of the Company regarding all financial and other
information provided to you regarding the Company and (ii) payment in full by
delivery of a cashier's, certified check or wire transfer of immediately
available funds in the amount of the Option Price. As a condition to any
exercise of the Option, you will permit the Company to deliver to you all
financial and other information regarding the Company which the Company believes
necessary to enable you to make an informed investment decision.
4. Securities Laws Restrictions and Other Restrictions on Transfer of
Option Units. You represent that when you exercise your Option you will be
purchasing Option Units for your own account and not on behalf of others. You
understand and acknowledge that federal and state securities laws govern and
restrict your right to offer, sell or otherwise dispose of any Option Units
unless your offer, sale or other disposition thereof is registered under the
Securities Act and state securities laws, or in the opinion of the Company's
counsel, such offer, sale or other disposition is exempt from registration or
qualification thereunder. You agree that you will not offer, sell or otherwise
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dispose of any Option Units in any manner which would: (1a) require the company
to file any registration statement with the Securities and Exchange Commission
(or any similar filing under state law) or to amend or supplement any such
filing or (ii) violate or cause the Company to violate the Securities Act, the
rules and regulations promulgated thereunder or any other state or federal law.
You further understand that the certificates for any Option Units you purchase
will bear such legends as the Company deems necessary or desirable in connection
with the Securities Act or other rules, regulations or laws.
5. Adjustments. In the event of a reorganization, recapitalization,
unit dividend or unit split, or combination or other fundamental change in the
Common Units, the General Partner shall, in order to prevent the dilution or
enlargement of rights under your Option, make such adjustments in the number and
type of Units covered by your Option and the Exercise Price specified herein as
may be determined to be appropriate and equitable.
6. Additional Restrictions on Transfer.
(a) Restrictive Legend. The certificates representing the Option Units
will bear the following legend:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR UNDER ANY
STATE SECURITIES LAWS AND MAY NOT BE SOLD OR TRANSFERRED IN THE ABSENCE OF
AN EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT AND APPLICABLE STATE
SECURITIES LAWS OR AN EXEMPTION FROM REGISTRATION THEREUNDER. THE
SECURITIES REPRESENTED BY THIS CERTIFICATE ARE ALSO SUBJECT TO ADDITIONAL
RESTRICTIONS ON TRANSFER AND CERTAIN OTHER AGREEMENTS SET FORTH IN AN
OPTION AGREEMENT DATED AS OF DECEMBER 30, 1996, BETWEEN THE COMPANY AND
XXXXX XXXXXX, A COPY OF WHICH MAY BE OBTAINED BY THE HOLDER HEREOF AT
THE COMPANY'S PRINCIPAL PLACE OF BUSINESS WITHOUT CHARGE."
(b) Opinion of Counsel. You may not sell transfer or dispose of
any Option Unit (except pursuant to an effective registration statement under
the Securities Act) without first delivering to the Company an opinion of
counsel reasonably acceptable in form and substance to the Company (which
counsel shall be reasonably acceptable to the Company) that registration under
the Securities Act or any applicable state securities law is not required in
connection with such transfer.
(c) 180-Day Prohibition. Notwithstanding anything to the contrary
contained herein, you may not sell, transfer or
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otherwise dispose of all or any portion of the Option or Option Unit during the
period commencing on December 30, 1996 and ending 180 calendar days thereafter.
7. Remedies. The parties hereto shall be entitled to enforce their
rights under this Agreement specifically, to recover damages by reason of any
breach of any provision of this Agreement and to exercise all other rights
existing in their favor. The parties hereto acknowledge and agree that money
damages would not be an adequate remedy for any breach of the provisions of this
Agreement and that any party hereto and any Investor as a third-party
beneficiary may, in its sole discretion, apply to any court of law or equity of
competent jurisdiction for specific performance and/or injunctive relief
(without posting bond or other security) in order to enforce or prevent any
violation of the provisions of this Agreement.
8. Amendment. Except as otherwise provided herein, any provision of
this Agreement may be amended or waived only with the prior written consent of
you and the Company.
9. Successors and Assigns. Except as otherwise expressly provided
herein, all covenants and agreements contained in this Agreement by or on behalf
of any of the parties hereto will bind and inure to the benefit of the
respective successors and permitted assigns of the parties hereto whether so
expressed or not.
10. Severability. Whenever possible, each provision of this Agreement
will be interpreted in such manner as to be effective and valid under applicable
law, but if any provision of this Agreement is held to be prohibited by or
invalid under applicable law, such provision will be ineffective only to the
extent of such prohibition or invalidity, without invalidating the remainder of
this Agreement.
11. Counterparts. This Agreement may be executed simultaneously in two
or more counterparts, each of which shall constitute an original, but all of
which taken together shall constitute one and the same Agreement.
12. Descriptive Headings. The descriptive headings of this Agreement
are inserted for convenience only and do not constitute a part of this
Agreement.
13. Governing Law. ALL ISSUES CONCERNING THIS AGREEMENT SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE,
WITHOUT GIVING EFFECT TO ANY CHOICE OF LAW OR CONFLICT OF LAW PROVISION OR RULE
(WHETHER OF THE STATE
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OF DELAWARE OR ANY OTHER JURISDICTION) THAT WOULD CAUSE THE APPLICATION OF THE
LAW OF ANY JURISDICTION OTHER THAN THE STATE OF DELAWARE.
14. Notices. All notices, demands or other communications to be given
or delivered under or by reason of the provisions of this Agreement shall be in
writing and shall be deemed to have been given when delivered personally or
mailed by certified or registered mail, return receipt requested and postage
prepaid, to the recipient. Such notices, demands and other communications shall
be sent to you and to the Company and the Investors at the addresses indicated
below:
(a) If to the Optionee:
Xxxxx Xxxxxx
c/o Allied Financial Corp.
0000 Xxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Telecopy: (000) 000-0000
(b) If to the Company:
Huntway Partners, L.P.
00000 Xxx Xxx Xxxx, Xxxxx 000
Xxxxxxx, XX 00000
Attn: Chief Financial Officer
Telecopy: (000) 000-0000
With a copy to:
Xxxxxxxx & Xxxxx
000 Xxxx Xxxxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxx
Telecopy: (000) 000-0000
or to such other address or to the attention of such other person as the
recipient party has specified by prior written notice to the sending party.
15. Entire Agreement. This Agreement constitutes the entire
understanding between you and the Company, and supersedes all other agreements,
whether written or oral, with respect to the acquisition by you of Common Stock
of the Company. The execution and delivery by the Company of this Agreement
satisfies the Company's obligations under that certain letter agreement dated
March 13, 1996 between you and the Company with respect to the Finder's Fee (as
defined in such letter agreement).
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Please execute the extra copy of this Agreement in the space below and
return it to the Company's Secretary at its executive offices to confirm your
understanding and acceptance of the agreements contained in this Agreement.
Very truly yours,
HUNTWAY PARTNERS, L.P.
By: Huntway Managing Partner, L.P.,
its Managing General Partner
By: The Huntway Division of
Reprise Holdings, Inc.,
its sole General Partner
By: /s/ XXXXXX X. XXXXXX
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Name:
Title:
The undersigned hereby acknowledges having read this Agreement and
hereby agrees to be bound by all provisions set forth herein.
Dated as of OPTIONEE
December 30, 1996
/s/ XXXXX XXXXXX
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Xxxxx Xxxxxx
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HUNTWAY REFINING COMPANY
00000 XXX XXX XXXX, XXXXX 000
XXXXXXX, XX 00000
March 19, 2001
Xxxxx Xxxxxx 1997 IRRV Trust
c/o Xxxxx Xxxxxx
Allied Financial Corporation
0000 Xxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Dear Trust:
You hereby confirm that you hold, free and clear, options to acquire an
aggregate of 1,146,059 shares of common stock of Huntway Refining Company
("Huntway") at an exercise price of $0.50 per share pursuant to two option
agreements with Huntway, one dated March 13, 1996 and the other December 30,
1996.
You hereby acknowledge and agree that in the event of a merger or other
similar transaction involving Huntway which is effected in such a way that the
common stock of Huntway is converted into the right to receive cash and/or
other securities, your options shall thereupon be exercisable only for the cash
and/or other securities to be paid in such merger or other transaction with
respect to an equivalent number of shares; and you and Huntway hereby agree that
your option agreements are accordingly amended.
As consideration for your entering into this agreement, Huntway shall
deliver to you within 5 business days of the date hereof a check in the amount
of $200,000.
Huntway Refining Company
By: /s/ XXXXXX X. XXXXXX
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XXXXXX X. XXXXXX
PRESIDENT &
CHIEF EXECUTIVE OFFICER
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Confirmed, Acknowledged and Agreed:
Xxxxx Xxxxxx 1997 IRRV Trust
By: /s/ XXXXX XXXXXX
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Its: Sole Trustee
Address:
000 Xxxxx Xxxxxxx
Xxxxxxxxx, XX 00000
Also Confirmed, Acknowledged and Agreed:
/s/ XXXXX XXXXXX
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Signature
Print name: Xxxxx Xxxxxx
