Exhibit 10.1
SERVICE AND REPURCHASE AGREEMENT
This Master Services Agreement (the "Agreement"), is entered
into as of January 31, 2007, by and between Optionable,Inc., a Delaware
corporation ("Optionable"), Opex International, Inc., a New York Corporation
("OPEX"), and Xxxxx D'Xxxxxx, a shareholder of OPEX.
WHEREAS, Optionable owns and operates an Over-the-Counter
("OTC") derivatives brokerage business;
WHEREAS, OPEX operates a Natural Gas and Crude Oil brokerage
business on the floor of the New York Mercantile Exchange (the "Floor Brokerage
Business");
WHEREAS, Optionable will provide business development,
support, and administrative services to OPEX for a fee;
WHEREAS, Xxxxx D'Xxxxxx owns 51% of the issued and outstanding
shares of common stock of OPEX for an initial investment of $5,100;
WHEREAS, Optionable owns 49% of the issued and outstanding
shares of common stock of OPEX and 100% of the issued and outstanding shares of
preferred stock of OPEX, for a total investment of $494,000;
WHEREAS, the parties wish to restrict the share ownership of
OPEX to its current owners;
NOW, THEREFORE, for good and valuable consideration, the
receipt and adequacy of which are hereby acknowledged, the parties hereby agree
as follows:
1. Floor Brokerage Services: Optionable will provide business development,
support, and administrative services to OPEX in support of the Floor Brokerage
Business. In consideration for such services, Optionable will charge to OPEX the
following:
o 110% of the business development, support, and administrative services
expenses incurred directly and indirectly by Optionable in connection
with the floor brokerage business of OPEX. Such expenses include, but
are not limited to, fixed and variable compensation of personnel
associated with the floor brokerage business, business development
expenses, sales and marketing expenses, seat lease, and a portion of
the administrative costs incurred by Optionable to support the floor
business brokerage.
o This charge is payable monthly in arrears to Optionable, out of
available working capital of OPEX. Optionable shall send a reasonably
detailed invoice to OPEX on or before the tenth business day of each
month, setting forth the charges for the immediately prior month.
o All invoices shall be due and payable within 30 calendar days. Unpaid
amounts shall bear interest at the rate of 9% a month from and after
such 30th day until paid in full.
2. Xxxxx D'Xxxxxx hereby grants Optionable an option to purchase his 5,100
shares of OPEX for [confidential treatment request has been submitted]. This
option may be exercised by Optionable at any time during a term (the "Term")
commencing on the date hereof and terminating 10 years from the date hereof.
o The option may only be exercised for the entire 5,100 shares; partial
exercises are not permitted.
o The option shall be exercised by delivery of the Exercise Notice,
attached hereto as Exhibit A, to Xxxxx D'Xxxxxx (or to his executor or
legal representative, in the event he is deceased or disabled),
together with the full purchase price.
o Xxxxx D'Xxxxxx shall deliver to Optionable the certificate(s)
representing the 5,100 shares within five days after delivery of the
Exercise Notice. If the certificates are not timely delivered, they
shall be deemed cancelled, and Optionable shall be entitled to a new
certificate for the 5,100 shares, and shall be deemed to be the bona
fide owner thereof for all intents and purposes.
o In the event Xxxxx D'Xxxxxx resigns from his position at OPEX,
Xxxxx D'Xxxxxx must give 90 days notice to OPEX's board of directors.
3. Xxxxx D'Xxxxxx may only sell his shares to Optionable. In addition, it is the
intent of the parties that, upon exercise of its option, Optionable will be
transferred ownership of the 5,100 shares free and clear of all liens and
encumbrances. Accordingly, Xxxxx D'Xxxxxx agrees not to borrow against, permit a
lien to be placed on, or otherwise directly or indirectly encumber his shares.
In addition, during the Term of the option OPEX shall not issue any additional
shares of its capital stock (including instruments exercisable for, or
convertible into, shares of its capital stock), without the prior written
consent of Optionable.
4. Representations and Warranties
a. Optionable hereby represents and warrants that:
i. it has all requisite corporate or other power and authority to
execute and deliver this Agreement and to perform its
obligations hereunder; and
ii. this Agreement has been duly executed and delivered by
Optionable and constitutes the legal, valid and binding
obligation of Optionable, enforceable against it in accordance
with its terms, except as enforceability may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium or
other laws relating to or affecting the rights and remedies of
creditors generally and by general principles of equity
(regardless of whether in equity or at law).
b. OPEX hereby represents and warrants that:
i. it has all requisite corporate or other power and authority to
execute and deliver this Agreement and to perform its
obligations hereunder; and
ii. this Agreement has been duly executed and delivered by OPEX and
constitutes the legal, valid and binding obligation of OPEX,
enforceable against it in accordance with its terms, except as
enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or other laws relating to
or affecting the rights and remedies of creditors generally and
by general principles of equity (regardless of whether in equity
or at law).
c. Xxxxx D'Xxxxxx hereby represents and warrants that:
i. he has all requisite power and authority to execute and deliver
this Agreement and to perform his obligations hereunder;
ii. this Agreement has been duly executed and delivered by him and
constitutes the legal, valid and binding obligation of him,
enforceable against him in accordance with its terms, except
as enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or other laws relating
to or affecting the rights and remedies of creditors generally
and by general principles of equity (regardless of whether in
equity or at law);
iii. he is the record and beneficial owner of the 5,100 shares, which
he owns free and clear of all liens and encumbrances.
5. Board of Directors
a. The Board of Directors of OPEX shall consist of three members, two of
whom shall be designees of Optionable (the "Optionable Directors") and
one of whom shall be a designee of Xxxxx D'Xxxxxx (the "OPEX
Director"). The Optionable Directors may not be removed or replaced,
except (i) by action of Optionable or (ii) upon termination or
expiration of this Agreement.
b. The initial Optionable Directors shall be Xxxxx Xxxxxxx and Xxxxxx X.
X'Xxxxxx. The initial OPEX Director shall be Xxxxx D'Xxxxxx.
c. OPEX and Xxxxx D'Xxxxxx shall take all appropriate action to ensure
that the OPEX charter documents are appropriately modified, if
necessary, to effectuate the actions required by this Section 5.
6. Termination
The obligations of the parties under Section 1 of this Agreement shall terminate
upon the occurrence of the following events:
o Bankruptcy, receivership, or dissolution of OPEX or Optionable;
o The purchase by Optionable of all the stock of OPEX
o The death, disability, expulsion, bankruptcy, resignation, or
retirement and the payment in full of the purchase price
therefore.
Notwithstanding the foregoing, Optionable's rights under its option shall not
terminate until the expiration of the option's Term.
Termination of this Agreement does not affect a party's accrued rights and
obligations at the date of termination.
7. Miscellaneous
a. Neither party shall make any disclosure relating to this Agreement or its
terms (collectively, "Confidential Information") to a third party (other
than the party's employees, agents, affiliates, accountants or
professional advisors who have a need to know such information and have
agreed to keep such terms confidential) without the prior approval of the
other party, except (i) as may be required by law or otherwise in
connection with discussions with regulators or other governmental
authorities, including any regulated exchange, or (ii) at such time as
such Confidential Information becomes known by the general public (or
generally known within the financial services, trading or commodity
markets communities) other than through violation of this paragraph.
b. This Agreement may not be modified or amended except by an instrument or
instruments in writing signed by each of the parties, and no provision of
this Agreement may be waived except in a writing signed by the relevant
party.
c. This Agreement constitutes the entire agreement and understanding of the
parties with respect to its subject matter and supersedes all oral
communication and prior writings with respect thereto.
d. All notices required or permitted hereunder shall be in writing and shall
be deemed effectively given: (a) upon personal delivery to the party to be
notified, (b) when sent by confirmed electronic mail, telex or facsimile
if sent during normal business hours of the recipient, if not, then on
the next business day, (c) five days after having been sent by registered
or certified mail, return receipt requested, postage prepaid, or (d) one
day after deposit with a nationally recognized overnight courier,
specifying next day delivery, with written verification of receipt. All
communications shall be sent:
If to Optionable:
Optionable, Inc.
000 Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxx, XX 00000
Attn: Xxxxx X. Xxxxxxx, Chief Executive Officer
Fax: (000) 000-0000
If to OPEX:
000 Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxx, XX 00000
Attn: ______________
Fax: (000) 000-0000
If to Xxxxx D'Xxxxxx:
000 Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxx, XX 00000
Fax: (000) 000-0000
or at such other address the Company or the Purchaser may designate by ten days
advance written notice to the other parties hereto.
e. This Agreement shall be governed by and construed under the laws of the
State of New York in all respects as such laws are applied to agreements
among New York residents entered into and performed entirely within
New York, without giving effect to conflict of law principles thereof.
[Signatures appear on the following page]
IN WITNESS WHEREOF, this Agreement has been signed by or on
behalf of each of the parties as of the day first above written.
OPTIONABLE, INC.
By: /s/ Xxxxx X. Xxxxxxx
Name: Xxxxx X. Xxxxxxx
Title: Chief Executive Officer
OPEX INTERNATIONAL, INC.
By: Xxxxx D'Xxxxxx
Name: Xxxxx D'Xxxxxx
XXXXX D'XXXXXX
Xxxxx D'Xxxxxx
Exhibit A
OPEX INTERNATIONAL, INC.
NOTICE OF EXERCISE OF STOCK PURCHASE OPTION
The undersigned hereby exercises the Stock Purchase Option granted by
Xxxxx D'Xxxxxx and hereby purchases 5,100 shares of Common Stock of Opex
International, Inc. pursuant to said Option.
Enclosed is a check in the sum of $20,400 in full payment for such
shares.
OPTIONABLE, INC.
By:
Name:
Title:
Date:
