RIGHT OF FIRST REFUSAL AND CORPORATE OPPORTUNITIES AGREEMENT (this “Agreement”)
made as of _______, 2006, by and between Doubloon Corp., a Delaware corporation
I, LLC, a Delaware limited liability company (“PIRAC”),
Pirate Capital LLC, a Delaware limited liability company (“Pirate”,
collectively with PIRAC, “Sponsor”).
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
the right of first refusal; and
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
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
of First Refusal.
the term specified in Section
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
defined herein) as follows:
shall have a right of first refusal with respect to Business Combinations that
relate to publicly-traded companies; and
Company shall have a right of first refusal with respect to Business
Combinations that relate to privately owned companies.
herein, the term “Business
described more fully in the Registration Statement) shall mean any acquisition,
through a merger, capital stock exchange, asset acquisition, stock purchase
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
party that has the duty to provide the right of first refusal to the other
provide written notice of the possible Business Combination to the party to
it has the duty to grant the right of first refusal (the “Grantee”)
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
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.
by the Company to release Sponsor to pursue any opportunity will be made by
majority of the Company’s independent directors.
Agreement shall become effective on its execution and shall remain in effect
a period to expire upon the earlier of (i) the consummation by the Company
its first Business Combination, (ii) the Company’s liquidation, or (iii) two
years after the execution of this Agreement.
notices or communications hereunder shall be in writing, addressed as follows:
Chief Executive Officer
J. Gulotta, Jr., Esq.
Levin Cohn Ferris Glovsky & Popeo, P.C.
Christopher Kelly, Esq.
notice or communication shall be delivered by hand or by overnight courier
sent certified or registered mail, return receipt requested, postage prepaid,
addressed as above (or to such other address as such party may designate in
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
notice delivered by certified or registered mail shall be deemed to be delivered
on the third business day after the certification or registration
provision of this Agreement shall be declared to be invalid or unenforceable,
whole or in part, such invalidity or unenforceability shall not affect the
remaining provisions hereof which shall remain in full force and effect.
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.
Agreement may only be amended by written agreement of the parties hereto.
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
addition to the survivorship provisions of any other section of this Agreement.
Agreement shall be construed, interpreted, and governed in accordance with
laws of the State of New York, without reference to rules relating to conflicts
on Prior Agreements.
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.
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.
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
THE JUDICIAL SYSTEM AND OF ARBITRATION, THE PARTIES HERETO WAIVE ALL RIGHT
TRIAL BY JURY IN ANY ACTION, SUIT OR PROCEEDING BROUGHT TO ENFORCE OR DEFEND
RIGHTS OR REMEDIES UNDER THIS AGREEMENT OR ANY DOCUMENTS RELATED HERETO.
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WITNESS WHEREOF, the parties hereto have executed this Right of First Refusal
and Corporate Opportunities Agreement as of the date first specified
Pirate Capital LLC, Member
R. Hudson Jr.
R. Hudson Jr.
R. Hudson Jr.