OPTION AGREEMENT
This OPTION AGREEMENT by and among Xxxxxx X. Xxxxx ("Xxxxx") and
C. Xxxx Xxx ("Grantee") is entered into as of this 9th day of November, 1999.
Background
Xxxxx is the record and beneficial owner of 275,000 shares (the
"Shares") of Common Stock, par value $.01 per share (the "Common Stock") of XX
Xxxx'x Corporation, a Delaware corporation (the "Company"). Xxxxx desires to
grant to Grantee an option to purchase the Shares on the terms and conditions
set forth herein.
Terms
In consideration of the mutual covenants contained herein and intending
to be legally bound hereby, the parties hereto agree as follows.
ARTICLE I
PURCHASE OPTION
Section 1.1. Grant of Purchase Option. Xxxxx hereby grants to Grantee an
exclusive option (the "Purchase Option") to purchase the Shares at the Per Share
Price and on the other terms and conditions set forth in this Agreement. In
consideration for the Purchase Option, the Grantee hereby pays to Xxxxx
$2,500.00 in immediately available funds. As used in this Agreement, "Per Share
Price" means the difference between (a) the "Purchase Price" as finally
determined pursuant to the Company's planned offer to purchase its shares of
Common Stock (the "Offer", to be commenced on November 12, 1999 and filed with
the Securities and Exchange Commission on Schedule 13E-4), and (b) $.05;
provided that in no event will the Per Share Price be less than $9.00. The
Purchase Option shall be exercisable by Grantee at any time from the date hereof
until the earlier of (a) two business days following the Company's notification
of the proration factor resulting from the Offer or (b) 5:00 p.m. Eastern Time
on January 1, 2000 (the "Purchase Option Period").
Section 1.2 Exercise. Grantee may exercise the Purchase Option once, but only
once, upon delivery of written notice to Xxxxx (the "Purchase Option Exercise
Notice") prior to the expiration of the Purchase Option Period. The Purchase
Option Exercise Notice shall state Grantee's election to exercise the Purchase
Option for a specified number of Shares and the business date on which Grantee
requests the applicable purchase to take place (the "Closing"). Once Grantee has
delivered the Purchase Option Exercise Notice, Grantee shall not be permitted to
revoke or rescind such exercise of the Purchase Option. At Closing, Xxxxx shall
deliver to Grantee such Shares free and clear of liens and other encumbrances.
Within 20 days following Closing, Grantee shall deliver to Xxxxx, in immediately
available funds, the cash purchase price equal to the product of the Per Share
Price and the number of Shares specified for purchase in the Purchase Option
Exercise Notice.
ARTICLE II
MISCELLANEOUS
Section 2.1. Governing Law. This Agreement shall be construed under and governed
by the internal laws of the State of New York without regard to its conflict of
laws provisions.
Section 2.2. Notices. Any notice, request, demand or other communication
required or permitted hereunder shall be in writing and shall be deemed to have
been given if delivered or sent by facsimile transmission, upon receipt, or if
sent by registered or certified mail postage prepaid, upon the sooner of the
date on which receipt is acknowledged or the expiration of five days after
deposit in United States post office facilities properly addressed with postage
prepaid or if sent by overnight courier, the day after delivery of such notice
to such courier. All notices to a party will be sent to the addresses set forth
below or to such other address or person as such party may designate by notice
to each other party hereunder:
To Xxxxx: Xxxxxx X. Xxxxx
NTC Group
0 Xxxxxxxx Xxxxx, Xxxxx 000
Xxxxxxxxx, XX 00000
To Grantee: C. Xxxx Xxx
Seagin International, LLC
Xxx Xxxx Xxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Any notice given hereunder may be given on behalf of any party by his counsel or
other authorized representatives.
Section 2.3. Entire Agreement. This Agreement, including the matters referred to
herein and the other writings specifically identified herein or contemplated
hereby, is complete, reflects the entire agreement of the parties with respect
to its subject matter, and supersedes all previous written or oral negotiations,
commitments and writings. No promises, representations, understandings,
warranties and agreements have been made by any of the parties hereto except as
referred to herein or in such other writings; and all inducements to the making
of this Agreement and the transactions contemplated hereby which were relied
upon by either party hereto have been expressed herein or in such other
writings.
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Section 2.4. Assignability; Binding Effect. This Agreement or any of the
obligations or rights hereunder may not be assigned or delegated by any party
without the prior written consent of the other party hereto. This Agreement
shall be binding upon and enforceable by, and shall inure to the benefit of, the
parties hereto and their respective successors and permitted assigns.
Section 2.5 Execution in Counterparts; Amendements. For the convenience of the
parties and to facilitate execution, this Agreement may (a) be executed in two
or more counterparts, each of which shall be deemed an original, but all of
which shall constitute one and the same document, and (b) executed by facsimile.
This Agreement may not be amended or modified, nor may compliance with any
condition or covenant set forth herein be waived, except by a writing duly and
validly executed by the parties hereto or in the case of a waiver, the party
waiving compliance.
IN WITNESS WHEREOF the parties hereto have caused this
Agreement to be executed as of the date set forth above by their duly authorized
representatives.
XXXXX:
/s/ Xxxxxx X. Xxxxx
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Xxxxxx X. Xxxxx
GRANTEE:
/s/ C. Xxxx Xxx
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C. Xxxx Xxx
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