ACQUISITION AGREEMENT
Exhibit
10.1
This
Acquisition Agreement (“Agreement”) dated as of March 23, 2007, is made and
entered into by and among Optionable, Inc., a
corporation organized pursuant to the laws of State of Delaware
(“Buyer”), Xxxxx Xxxxxxxxx, Xxxxxxx Town, and Xxxxxx Mc Xxxx
(“Sellers”).
WHEREAS,
the
Seller desires to sell and assign certain assets to the Buyer and the Buyer
desires to purchase and receive such assets;
WITNESSETH:
NOW,
THEREFORE, in consideration of the premises and the representations, warranties,
covenants and agreements contained herein, and intending to be legally bound,
the Parties hereto agree as follows:
SECTION
1. Sale
and Purchase of the Acquired Assets
2.1 Agreement
to Sell and Purchase.
Subject
to the terms, agreements, warranties, representations and conditions of this
Agreement, Sellers hereby agree to sell, convey, transfer, assign and deliver
to
Buyer, and Buyer hereby agrees to purchase, all of Sellers rights, title and
interest in and to the Sellers client list, intellectual property used in the
course of Sellers derivatives brokerage and trading business, associated
intangible properties and associated goodwill (the “Acquired
Assets”).
2.2 Assumption
of Liabilities.
The
Buyer is not assuming any liabilities of Sellers whether or not they relate
to
the Acquired Assets.
2.3 Allocation
of Purchase Price.
The
Parties shall negotiate in good faith an allocation of the purchase
price.
SECTION
2. Purchase
Price
As
consideration for the Acquired Assets:
2.1 Cash.
Buyer
shall pay to the Sellers as follows: $400,000 concurrent with the execution
hereof ($160,000 to Xxxxx Xxxxxxxxx, $120,000 to Xxxxxxx Town, $120,000 to
Xxxxxx XxXxxx), $400,000 ($160,000 to Xxxxx Xxxxxxxxx, $120,000 to Xxxxxxx
Town,
$120,000 to Xxxxxx XxXxxx) eighteen months from the execution hereof, and
$400,000 ($160,000 to Xxxxx Xxxxxxxxx, $120,000 to Xxxxxxx Town, $120,000 to
Xxxxxx XxXxxx) on the third anniversary hereof.
2.2 Warrants.
Concurrent with the execution hereof, Buyer shall grant to Sellers warrants
to
purchase 900,000 shares of Buyer’s common stock (“Common Shares”) (360,000 to
Xxxxx Xxxxxxxxx, 270,000 to Xxxxxxx Town, and 270,000 to Xxxxxx XxXxxx)
exercisable for five years and at an exercise price per share equal to $5 per
share. 33 1/3% of such warrants shall be immediately exercisable and 66 2/3%
such warrants shall become exercisable if the Sellers are collectively
responsible for at least $1 million in energy-related brokerage fees during
the
12-month period following the effective date of this agreement.
In
lieu
of exercising the Warrant by paying the exercise price in cash, the Warrant
may
be exercised in whole at any time or in part from time to time prior to the
expiration date of the Warrant, by the Seller by surrendering the Warrant to
the
Company, without payment of any other consideration, together with a duly
executed notice of exercise in a form satisfactory to the Company. The number
of
common shares to be issued by the Company shall be calculated using the
following formula:
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X
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=
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Y(A-B)
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|
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A
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|||
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Where
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X
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=
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the
number of common shares to be issued to the Seller
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Y
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=
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the
number of common shares purchasable under the warrant or, if the
Warrant
is being exercised in part, under the portion of the Warrant being
exercised (at the date of surrender of the Warrant and the notice
of
exercise)
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A
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=
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the
Market Price (at the date of surrender and the notice of exercise,
which
is the closing price of the Company’s )
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B
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=
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the per share Warrant exercise price |
SECTION
3. Representations
of Sellers.
Sellers
hereby represent and warrant to, and agree with, Buyer as follows:
3.1 Authorization;
Absence of Conflicting Agreements.
This
Agreement constitutes the valid and binding obligation of Sellers enforceable
against him in accordance with its terms. No consent of any person is required
for Seller to enter into
and
deliver this Agreement or to consummate the transactions contemplated
hereby.
3.2 Title
to Acquired Assets; Liens and Encumbrances.
Sellers
have good and marketable title to all of the Acquired Assets. None of the
Acquired Assets are subject to any lien.
SECTION
5. Further
Assurances.
Sellers
shall promptly execute and deliver to Buyer any and all such further
assignments, licenses, endorsements and other documents sufficient to convey
to
Buyer good and marketable title to all the Acquired Assets, free and clear
of
all mortgages, pledges, liens, licenses, security interests, restrictions,
encumbrances or other security arrangements and all claims or agreements of
any
nature whatsoever as well as such other instruments of conveyance as counsel
for
Buyer may reasonably deem necessary or desirable (both at and after execution
hereof) to effect or evidence the transfers contemplated hereby.
SECTION
6. Miscellaneous
6.1 Survival
of Representations
The
representations and warranties contained in this Agreement shall survive the
execution hereof for a period of one year.
6.2 No
Broker.
No
broker or finder has been involved with any of the transactions relating to
this
Agreement. Each Party hereto agrees to indemnify, defend and hold the other
Parties harmless from and against any claims made by any broker or finder for
a
commission or fee in connection with this Agreement or the transactions
contemplated hereby.
6.3 Entire
Agreement.
This
Agreement sets forth the entire agreement between the parties with respect
to
the subject matter addressed herein.
6.4 Governing
Law.
This
agreement shall be governed and construed by the laws of the State of New York
governing contracts to be performed wholly within such State.
6.5 Benefit
of Parties; Assignment.
The
Agreement may not be assigned by any Party except with the prior written consent
of the other Parties hereto. Nothing herein contained shall confer or is
intended to confer on any Person that is not a Party to this Agreement any
rights under this Agreement.
6.6 Waivers
and Amendments
Any
waiver of any term or condition of this Agreement, or any amendment or
supplementation of this Agreement, shall be effective only if in a writing
signed by the Parties. A waiver of any breach or failure to enforce any of
the
terms or conditions of this Agreement shall not in any way affect, limit or
waive a Party’s rights hereunder at any time to force strict compliance
thereafter with every term or condition of this Agreement.
6.7 Counterparts.
This
Agreement may be executed in one or more counterparts, each of which shall
be
deemed an original but all of which together will constitute one and the same
instrument.
IN
WITNESS WHEREOF,
the
parties hereto have caused this agreement to be duly executed as of the day
and
year first above written.
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OPTIONABLE,
INC.
By:
s/s
Xxxxx Xxxxxxx
Name:
Xxxxx Xxxxxxx
Title:
Chief Executive Officer
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Sellers:
s/s
Xxxxx Xxxxxxxxx
Xxxxx
Xxxxxxxxx
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s/s
Xxxxxxx Town
Xxxxxxx
Town
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s/s
Xxxxxx XxXxxx
Xxxxxx
XxXxxx
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