EXHIBIT 2.7
NEXTGEN COMMUNICATIONS CORPORATION
REPURCHASE OPTION AGREEMENT
This Repurchase Option Agreement (the "Agreement"), executed to be
effective as of February 20, 2002 (the "EFFECTIVE DATE"), is entered into by and
between NEXTGEN COMMUNICATIONS CORPORATION, a Delaware corporation ("NEXTGEN"),
and W. XXXXXXX XXXXXXXX ("XXXXXXXX").
RECITALS
WHEREAS, Xxxxxxxx currently beneficially owns 200,000 shares of
Nextgen's outstanding common stock, $.001 par value per share (the "SHARES");
and
WHEREAS, it is a condition to the execution of that certain Settlement
Agreement and Mutual Release of Claims among Nextgen, Xxxxxxxx, and Point To
Point Network Services, Inc., a wholly-owned subsidiary of Nextgen, executed to
be effective as of February 20, 2002, that Xxxxxxxx and Nextgen enter into this
Agreement.
NOW THEREFORE, Nextgen and Xxxxxxxx agree as follows:
1. Repurchase Option.
(a) Xxxxxxxx hereby grants Nextgen, at any time from the
Effective Date until June 29, 2002 (the "EXPIRATION DATE"), an irrevocable,
exclusive option (the "REPURCHASE OPTION") to repurchase all or any portion of
the Shares for $5.00 per share (the "REPURCHASE PRICE"). The Repurchase Option
shall be exercised by Nextgen by its delivery and actual receipt by Xxxxxxxx
(unless Xxxxxxxx refuses to accept delivery, in which case Nextgen's tender of
the notice and funds shall suffice) on or before the Expiration Date of a
written notice and a certified check or wire transfer in the amount of the
Repurchase Price for the Shares being repurchased to Xxxxxxxx or Xxxxxxxx'x
executor. Upon delivery of such notice and the payment of the Repurchase Price
in accordance herewith, Nextgen shall become the legal and beneficial owner of
the Shares being repurchased and all rights and interests therein or relating
thereto, and Nextgen shall have the right to retain and transfer to its own name
the number of Shares being repurchased by Nextgen.
(b) Whenever Nextgen shall have the right to repurchase Shares
hereunder, Nextgen may designate and assign one or more employees, officers,
directors or stockholders of Nextgen or other persons or organizations to
exercise all or a part of Nextgen's purchase rights under this Agreement and
purchase all or a part of such Shares.
2. Restriction on Transfer. Except for the transfer of the Shares to
Nextgen or its assignees contemplated by this Agreement, none of the Shares or
any beneficial interest therein shall be transferred, encumbered or otherwise
disposed of by Xxxxxxxx in any way until the Expiration Date.
3. Legends. The share certificate evidencing the Shares shall be
endorsed with only the following legends:
THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933. THE SHARES HAVE
BEEN ACQUIRED FOR INVESTMENT AND MAY NOT BE SOLD, TRANSFERRED
OR ASSIGNED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION
STATEMENT FOR THESE SHARES UNDER THE SECURITIES ACT OF 1933 OR
AN EXEMPTION FROM REGISTRATION UNDER THE SAID ACT.
THE SHARES REPRESENTED BY THIS CERTIFICATE MAY BE TRANSFERRED
ONLY IN ACCORDANCE WITH THE TERMS OF A REPURCHASE OPTION
AGREEMENT BETWEEN THE CORPORATION AND W. XXXXXXX XXXXXXXX, A
COPY OF WHICH IS ON FILE WITH THE SECRETARY OF THE
CORPORATION. THE REPURCHASE OPTION AGREEMENT EXPIRES AND IS OF
NO FURTHER FORCE OR EFFECT FROM AND AFTER JUNE 30, 2002. AFTER
SUCH DATE NO FURTHER APPROVALS SHALL BE REQUIRED FOR THE
TRANSFER OF THE SHARES REPRESENTED BY THIS CERTIFICATE, EXCEPT
AS SET FORTH IN THE PRECEDING PARAGRAPH.
4. General Provisions.
(a) THIS AGREEMENT SHALL BE GOVERNED IN ALL RESPECTS BY THE
LAWS OF THE STATE OF DELAWARE AS SUCH LAWS ARE APPLIED TO AGREEMENTS BETWEEN
DELAWARE RESIDENTS ENTERED INTO AND TO BE PERFORMED ENTIRELY WITHIN DELAWARE
WITHOUT REGARD TO CONFLICT OF LAWS RULES. THE PARTIES TO THIS AGREEMENT HEREBY
MUTUALLY AGREE THAT VENUE FOR ANY ACTION BROUGHT WITH RESPECT TO THIS AGREEMENT
SHALL BE PROPER EXCLUSIVELY IN NEW CASTLE COUNTY, DELAWARE.
(b) This Agreement represents the entire agreement between the
parties with respect to the subject matter herein and may only be modified or
amended in writing signed by both parties.
(c) All notices and other communications required or permitted
hereunder shall be effective upon receipt and shall be in writing and may be
delivered in person, by facsimile, overnight delivery service or U.S. mail, in
which event it may be mailed by first-class, certified or registered, postage
prepaid, addressed (a) if to Xxxxxxxx, at such address as set forth on the
signature page hereto, or at such other address as Xxxxxxxx shall, from time to
time, designate to Nextgen in writing or (b) if to Nextgen, at its address set
forth on the signature page of this Agreement, or at such other address as
Nextgen shall have furnished to Xxxxxxxx in writing.
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(d) The rights and benefits of Nextgen under this Agreement
shall be transferable to any one or more persons or entities, and all covenants
and agreements hereunder shall inure to the benefit of, and be enforceable by
Nextgen's successors and assigns. The rights and obligations of Xxxxxxxx under
this Agreement may only be assigned with the prior written consent of Nextgen.
(e) Either party's failure to enforce any provision or
provisions of this Agreement shall not in any way be construed as a waiver of
any such provision or provisions, nor prevent that party thereafter from
enforcing each and every other provision of this Agreement. The rights granted
both parties herein are cumulative and shall not constitute a waiver of either
party's right to assert all other legal remedies available to it under the
circumstances.
(f) Each party agrees to execute any further documents or
instruments as the other may reasonably request to carry out the purposes or
intent of this Agreement.
[Remainder of page intentionally left blank.]
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IN WITNESS WHEREOF, the parties have duly executed this Agreement as of
the day, month and year first set forth above.
NEXTGEN COMMUNICATIONS
CORPORATION XXXXXXXX:
By:
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Xxxxx X. Xxxxxxxx W. Xxxxxxx Xxxxxxxx
President and Chief Executive
Officer
Address: Address:
00000 Xxxxx Xxxx 0 Xxxxxxxxx Xxxx
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Xxxxxxx, XX 00000 Xxxxxxx, XX 00000
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{Please provide address for notice {Please provide address for notice
purposes} purposes}
NEXTGEN COMMUNICATIONS CORPORATION
REPURCHASE OPTION AGREEMENT SIGNATURE PAGE
ASSIGNMENT SEPARATE FROM CERTIFICATE
FOR VALUE RECEIVED I, W. XXXXXXX XXXXXXXX, hereby sell, assign and
transfer to ______________ ___________________ (________) shares of the Common
Stock of NEXTGEN COMMUNICATIONS CORPORATION (the "COMPANY") standing in my name
on the books of the Company represented by Certificate No. __________ and do
hereby irrevocably constitute and appoint _______________ to transfer said stock
on the books of the Company with full power of substitution in the premises.
This Assignment Separate from Certificate may only be used in
accordance with that certain Repurchase Option Agreement executed to be
effective as of February 20, 2002.
Dated: .
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W. Xxxxxxx Xxxxxxxx
INSTRUCTION: PLEASE DO NOT FILL IN ANY BLANKS OTHER THAN THE SIGNATURE LINE. The
purpose of this assignment is to enable Nextgen to exercise its "repurchase
option" as set forth in the Repurchase Option Agreement without requiring
additional signatures on the part of Xxxxxxxx.
