Exhibit 4.10
OPTION AGREEMENT
This Option agreement (the "Agreement") is made and entered into as of
the 24th day of January, 2002, by and between NELnet, Inc., a Nevada corporation
("NELnet") and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ("Arguinchona").
WHEREAS, NELnet wishes to grant an option to Arguinchona to purchase
certain stock in Nelnet Loan Services, Inc., f/k/a UNIPAC Service Corporation, a
Nebraska corporation ("NLSI") under the terms specified herein; and
WHEREAS, if Arguinchona exercises his option to purchase certain NLSI
stock as provided herein, then NELnet wishes to grant an option to Arguinchona
to sell such stock and Arguinchona wishes to grant an option to NELnet to
purchase such stock, all under the terms as specified herein.
NOW, THEREFORE, in consideration of the foregoing premises and the
mutual covenants, promises and agreements contained herein, the parties hereto
agree as follows:
I.
DEFINITIONS AND USE OF PHRASES
As used in this Agreement, the following capitalized terms, unless the
context used clearly indicates another or different meaning or intent, shall
have the following meanings:
"Business Day" shall mean any day on which banks located in Lincoln,
Nebraska, are not authorized or required to close.
"Closing" shall mean the events that are to take place on the Exercise
Date, including payment of the Exercise Price and delivery of the Common Stock,
certificates and other items specified in this Agreement.
"Common Stock" shall mean 3,250 shares of the issued and outstanding
Class B Non-Voting Common Stock of NLSI, title and beneficial ownership of which
is held by F&M on the date of delivery of this Agreement.
"Exercise Date" shall mean the date identified in the Exercise Notice
as the date on which one party hereto is to sell to the other party the Common
Stock that is authorized hereunder to be the Exercise Date.
"Exercise Notice" shall mean written notice from one party hereto to
the other party stating that the party giving notice elects to exercise either
the Purchase Option, the Put Option or the NELnet Call Option, subject to and
upon the terms and conditions of such option, on a permitted Exercise Date
specified in the notice.
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"F&M" shall mean Farmers & Merchants Investment Inc., a Nebraska
corporation.
"NLSI" shall mean Nelnet Loan Services, Inc., f/k/a UNIPAC Service
Corporation, a Nebraska corporation.
"NELnet" shall mean NELnet, Inc., a Nevada corporation.
"NELnet Call Option" shall mean the right that NELnet acquires under
this Agreement to require that Arguinchona sell the Common Stock to NELnet or
its designee, subject to and in accordance with the terms and conditions of this
Agreement.
"NELnet Call Option Exercise Price" shall mean $1 million.
"Person" shall mean any corporation, limited liability company, natural
person, firm, joint venture, partnership, trust, unincorporated organization,
enterprise, government or any department or agency of any government.
"Purchase Option" shall mean the right that Arguinchona acquires under
this Agreement to require that NELnet cause F&M to sell the Common Stock to
Arguinchona, subject to and in accordance with the terms and conditions of this
Agreement.
"Purchase Option Exercise Price" shall mean $1 million.
"Put Option" shall mean the right that Arguinchona acquires under this
Agreement to require that NELnet purchase from Arguinchona all of the Common
Stock owned by Arguinchona, subject to and in accordance with the terms and
conditions of this Agreement.
"Put Option Exercise Price" shall mean the greater of (i) $1,916,000,
or (ii) the amount Arguinchona would receive upon sale of the Common Stock under
the Stockholders Agreement.
"Stockholders Agreement" shall mean the Stockholders Agreement dated as
of March 2, 2000, among NLSI and shareholders of NLSI.
II.
GRANT OF THE OPTIONS
2.1 Grant. In return for the mutual covenants contained herein,
NELnet hereby conveys and grants the Purchase Option and the Put Option to
Arguinchona, and Arguinchona hereby conveys and grants the NELnet Call Option to
NELnet.
III.
THE PURCHASE OPTION
3.1 Rights and Privileges. Arguinchona, as holder of the Purchase
Option, is hereby granted the right and privilege, subject to and in accordance
with the terms and conditions of this
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Agreement, to require that NELnet sell or cause to be sold 3,250 shares of the
Common Stock that are owned by F&M, on the Exercise Date at a purchase price
equal to the Purchase Option Exercise Price.
3.2 Exercise Date. The Exercise Date with respect to the Purchase
Option, may be any Business Day from and including February 1, 2002 (or the next
Business Day if not a Business Day) to and including February 10, 2002 (or the
next Business Day if not a Business Day).
3.3 Exercise of the Purchase Option. In order to exercise the
Purchase Option, Arguinchona must deliver to NELnet not less than three (3) days
before the designated Exercise Date an Exercise Notice fully completed and
executed by Arguinchona.
3.4 Payment of Purchase Option Exercise Price. On the Exercise
Date with respect to the Purchase Option, Arguinchona shall pay to NELnet the
Purchase Option Exercise Price in immediately available funds by wire transfer
to the account and bank of which NELnet shall give Arguinchona prior written
notice.
3.5 Delivery of Common Stock. On the Exercise Date with respect to
the Purchase Option, and upon receipt of the Purchase Option Exercise Price as
aforesaid, NELnet shall deliver or cause to be delivered to or upon the order of
Arguinchona one or more stock certificates representing 3,250 shares of the
issued and outstanding Common Stock that is owned by F&M, signed by F&M, who
is the owner of such Common Stock and listing Arguinchona as the transferee.
3.6 Conversion of Stock. If the Common Stock is converted into
stock of any other corporation pursuant to merger or other combination, all
terms and provisions of this Agreement shall apply to such converted stock.
3.7 Stockholders Agreement. On or before the Exercise Date with
respect to the Purchase Option, Arguinchona shall execute and deliver to NELnet
the NLSI Stockholder's Agreement.
IV.
THE PUT OPTION
4.1 Rights and Privileges. Arguinchona, as holder of the Put
Option, is hereby granted the right and privilege, subject to and in accordance
with the terms and conditions of this Agreement, to require that NELnet purchase
3,250 shares of the Common Stock that is acquired by Arguinchona pursuant to the
Purchase Option, on the Exercise Date at a purchase price equal to the Put
Option Exercise Price.
4.2 Exercise Date. The Exercise Date with respect to the Put
Option may be any Business Day from and including February 1, 2007 (or the next
Business Day if not a Business Day) to and including February 1, 2008 (or the
next Business Day if not a Business Day).
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4.3 Exercise of the Put Option. In order to exercise the Put
Option, Arguinchona must deliver to NELnet not less than thirty (30) days and
not more than sixty (60) days before the designated Exercise Date with respect
to the Put Option an Exercise Notice fully completed and executed by
Arguinchona.
4.4 Payment of Put Option Exercise Price. On the Exercise Date
with respect to the Put Option, NELnet shall pay (or shall cause its designee to
pay) to Arguinchona the Put Option Exercise Price in immediately available funds
by wire transfer to the account and bank of which Arguinchona shall give NELnet
prior written notice.
4.5 Delivery of Common Stock. On the Exercise Date with respect to
the Put Option, Arguinchona shall deliver to or upon the order of NELnet or its
designee one or more stock certificates representing 3,250 shares of the issued
and outstanding Common Stock that is owned by Arguinchona together with one
stock power for each such stock certificate, in each case signed by Arguinchona,
who will be the owner of such Common Stock free and clear from all liens or
encumbrances of any nature and listing NELnet or its designee as the transferee.
4.6 Conversion of Stock. If the Common Stock is converted into
stock of any other corporation pursuant to merger or other combination, all
terms and provisions of this Agreement shall apply to such converted stock.
4.7 Conditions Precedent. As conditions to Arguinchona's right to
the Put Option, Arguinchona shall have (i) exercised the Purchase Option as
described in Article III above, (ii) executed and delivered the NLSI
Stockholder's Agreement, and (iii) furnished consulting services in accordance
with the terms of the Consulting Agreement between Idaho Financial Associates,
Inc., and Arguinchona dated as of January 24, 2002, for a period of at least
five years prior to any termination of such consulting relationship.
V.
THE NELNET CALL OPTION
5.1 Rights and Privileges. NELnet, as holder of the NELnet Call
Option, is hereby granted the right and privilege, subject to and in accordance
with the terms and conditions of this Agreement, to require that Arguinchona
sell 3,250 shares of the Common Stock owned by Arguinchona, on the Exercise Date
with respect to the NELnet Call Option at a purchase price equal to the NELnet
Call Option Exercise Price.
5.2 Exercise Date. The Exercise Date with respect to the NELnet
Call Option may be any Business Day from and including the date first set forth
in this Agreement, to and including February 1, 2008 (or the next Business Day
if not a Business Day).
5.3 Exercise of the NELnet Call Option. In order to exercise the
NELnet Call Option, NELnet must deliver to Arguinchona not less than thirty (30)
days and not more than sixty (60) days before the designated Exercise Date with
respect to the NELnet Call Option an Exercise Notice fully completed and
executed by NELnet.
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5.4 Payment of NELnet Call Option Exercise Price. On the Exercise
Date with respect to the NELnet Call Option, NELnet shall pay to Arguinchona the
NELnet Call Option Exercise Price in immediately available funds by wire
transfer to the account and bank of which Arguinchona shall give NELnet prior
written notice.
5.5 Delivery of Common Stock. On the Exercise Date with respect to
the NELnet Call Option, Arguinchona shall deliver to or upon the order of NELnet
or its designee one or more stock certificates representing 3,250 shares of the
issued and outstanding Common Stock that is owned by Arguinchona together with
one stock power for each such stock certificate, in each case signed by
Arguinchona, who will be the owner of such Common Stock free and clear from all
liens or encumbrances of any nature and listing NELnet or its designee as the
transferee.
5.6 Conversion of Stock. If the Common Stock is converted into
stock of any other corporation pursuant to merger or other combination, all
terms and provisions of this Agreement shall apply to such converted stock.
5.7 Conditions Precedent. NELnet's rights under the NELnet Call
Option shall be conditioned upon (i) Arguinchona's exercise of the Purchase
Option as set forth in Article I above, and (ii) termination of the consulting
relationship between Idaho Financial Associates, Inc., and Arguinchona pursuant
to the Consulting Agreement dated as of January 24, 2002, by Idaho Financial
Associates, Inc., early for cause or by Arguinchona so as to have a duration of
less than five years.
VI.
REPRESENTATIONS AND WARRANTIES
6.1 NELnet's Representations and Warranties. NELnet hereby
represents and warrants, on and as of the date hereof and, only with respect to
Section 6.1(a) hereof, on and as of the Exercise Date with respect to the
Purchase Option, as follows:
(a) Ownership of Common Stock. F&M is the lawful record
and beneficial owner of 3,250 shares in the aggregate of the issued and
outstanding Class B Non-Voting Common Stock of NLSI, free and clear of
all liens, claims, security interests, pledges, encumbrances and
restrictions of every kind or nature whatsoever except for restrictions
arising from that certain Stockholders Agreement dated as of March 2,
2000 (the "Stockholders Agreement") among shareholders of NLSI. Other
than this Agreement and the Stockholders Agreement, there are no
authorized or outstanding subscriptions, options, warrants, calls,
contracts, demands, commitments, convertible securities or other
agreements or arrangements of any character or nature whatsoever, under
which NLSI or F&M are or may become obligated to issue, assign or
transfer any shares of the capital stock of NLSI. Upon the delivery to
Arguinchona at the Closing of the certificates representing the Common
Stock, Arguinchona will be the lawful owner of the Common Stock, free
and clear of all liens, claims, security interests,
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pledges, encumbrances or restrictions of any kind or nature whatsoever
(other than the Stockholders Agreement).
(b) Power and Authority; No Conflict or Consent. NELnet
has the necessary power and authority to enter into this Agreement and
to perform the obligations to be performed by NELnet hereunder, and
this Agreement is valid and binding upon NELnet and enforceable in
accordance with its terms, subject to all bankruptcy, insolvency and
similar laws affecting creditors' rights generally, and subject, as to
enforceability, to general principles of equity, whether applied in a
proceeding in equity or in law. The execution and delivery of this
Agreement by NELnet does not, and the consummation of the transactions
contemplated hereby and the performance by NELnet of the terms of this
Agreement will not result in the acceleration of any obligation under,
or constitute an event of default under any agreement, instrument,
order, judgment or decree to which NLSI or NELnet is bound or require
the consent of any lender or other third party not obtained.
6.2 Representations and Warranties to NELnet. Arguinchona hereby
represents and warrants to NELnet, on and as of the date hereof and, only with
respect to Section 6.2(a) hereof, on and as of the Exercise Date with respect to
the Put Option and the NELnet Call Option, as follows:
(a) Ownership of Stock. Arguinchona is the lawful record
and beneficial owner of 3,250 shares in the aggregate of the issued and
outstanding Class B non-voting Common Stock of NLSI, free and clear of
all liens, claims, security interests, pledges, encumbrances and
restrictions of every kind or nature whatsoever, except for
restrictions arising from the Stockholder's Agreement. Other than this
Agreement and the Stockholder's Agreement, there are no authorized or
outstanding subscriptions, options, warrants, calls, contracts,
demands, commitments, convertible securities or other agreements or
arrangements of any nature or character whatsoever, under which
Arguinchona is or may become obligated to issue, assign or transfer any
shares of the capital stock of NLSI. Upon the delivery to NELnet or its
designee at the Closing of the certificates representing the Common
Stock, NELnet will be the lawful owner of the Common Stock, free and
clear of all liens, claims, security interests, pledges, encumbrances
or restrictions of any kind or nature whatsoever (other than the
Stockholder's Agreement).
(b) Power and Authority; No Conflict or Consent.
Arguinchona has the necessary power and authority to enter into this
Agreement and to perform the obligations to be performed hereunder.
This Agreement is valid and legally binding upon Arguinchona,
enforceable in accordance with its terms, subject to all applicable
bankruptcy, insolvency and similar laws affecting creditors' rights
generally, and subject, as to enforceability, to general principles of
equity, whether applied in a proceeding in equity or in law. The
execution of this Agreement and the performance by Arguinchona of the
various terms and provisions hereof will
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not result in the acceleration of any obligation under, or constitute
an event of default under any agreement, instrument, order, judgment or
decree to which Arguinchona is a party or by which it is bound, or
require the consent of any lender or other third party not obtained.
VII.
CONDITIONS PRECEDENT
7.1 Conditions. If any party exercises any of the options in
accordance with this Agreement, the obligation of the other party hereunder
shall be subject to the satisfaction or waiver of the following conditions:
(a) Representations and Warranties. The representations
and warranties of the party exercising such option set forth herein
shall be true and correct in all material respects on the Exercise Date
as if made on and as of such date, and the non-exercising party shall
have received a certificate to such effect, executed by the party
exercising the option and dated as of the Exercise Date.
(b) Performances and Covenants. The party exercising the
option shall have performed all of its obligations contained in this
Agreement to be performed on or prior to the Exercise Date and the
non-exercising party shall have received a certificate to such effect,
executed by the party exercising the option and dated as of the
Exercise Date.
VIII.
MISCELLANEOUS
8.1 Binding Effect, Persons Benefitting, No Assignment. This
Agreement shall inure to the benefit of and be binding upon the parties hereto.
Nothing in this Agreement is intended or shall be construed to confer upon any
entity or Person other than the parties hereto any right, remedy or claim under
or by reason of this Agreement or any part hereof. This Agreement may not be
assigned by either party. This Agreement shall inure to the benefit of and be
binding upon the successor party hereto only if the other party has given its
consent thereto.
8.2 Amendments. This Agreement may not be amended, altered or
modified except by a written instrument executed by the parties hereto.
8.3 Counterparts. This Agreement may be executed in counterparts,
each of which shall be deemed an original and each of which shall constitute one
and the same instrument.
8.4 Entire Agreement; Attachments. This Agreement, including the
Attachments, certificates and lists referred to herein or attached hereto, and
any documents executed by the parties pursuant thereto, constitute the entire
understanding and agreement of the parties hereto with respect to the subject
matter hereof and supersede all other prior agreements and understandings,
written or oral, between the parties with respect to such subject matter.
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8.5 Indemnification. Each party hereto agrees to indemnify and
hold the other harmless from and against any loss, damage, liability or expense
(including, without limitation, reasonable attorneys' fees) arising out of or in
connection with the breach of such party's covenants, representations or
warranties hereunder. This section 8.5 shall survive the Exercise Date and
Closing.
8.6 Notices. Except as otherwise expressly provided herein, all
notices, requests, demands and other communications hereunder shall be in
writing and shall be deemed to have been duly given when delivered by hand or by
overnight courier, two days after being sent by registered mail, return receipt
requested, or when sent by telecopy (with receipt confirmed), provided, in the
case of a telecopied notice, a copy is also sent by registered mail, return
receipt requested, or by courier, addressed as follows (or to such other address
as a party may designate by notice to the other):
If to Arguinchona:
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
Idaho Financial Associates, Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Telephone: 208/▇▇▇-▇▇▇▇
Facsimile: 208/344-3917
If to NELnet:
▇▇▇▇ ▇▇▇▇▇▇
NELnet, Inc.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telephone: 402/▇▇▇-▇▇▇▇
Facsimile: 402/323-1286
IN WITNESS WHEREOF, the parties hereto have caused this Option
Agreement to be duly executed as of the day and year first above written.
NELnet, Inc.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇ /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
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Title: CFO ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
Option Agreement
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