HomeMy WebLinkAboutStock AgreementSALE OF STOCK AGREEMENT
OF
EDWARD D. STONE, JR AND ASSOCIATES, INC.
THIS SALE OF STOCK AGREEMENT ("Agreement") made and entered into this
.// day of October, 2004, effective November 1, 2004 ("Effective Date") by and among
EDWARD D. STONE, JR AND ASSOCIATES, INC., a Florida corporation ("Corporation"),
and JOSEPH J. LALLI ("Lalli"), C. DOUGLAS COOLMAN ("Coolman"), JOHN W.
MILLER (`Miller"), J. ROBERT BEHLING ("Behling"), DOUGLAS C. SMITH ("Smith"),
ROBERT M. DUGAN ("Dugan"), RICHARD D. CENTOLELLA ("Centolella"),
WILLIAM B. RENNER ("Renner"), MARCO V. LARREA ("Larrea"), JOAQUIN R.
VENDRELL ("Vendrell"), PAUL D. KISSINGER ("Kissinger"), EDWIN M. LINQUIST
("Linguist"), JOSE A. JAGUAN ("Jaguan"), JOHN N. GERBINO ("Gerbino"), GREGG R.
SUTTON ("Sutton"), M. GREGORY CLOWARD ("M. Cloward"), CORRY M.
CLOWARD ("C. Cloward") and FERRELL BRENT SAFLEY ("Safley") hereinafter
collectively referred to as the "Purchasing Shareholders."
WITNESSETH:
WHEREAS, the number of shares the Corporation is currently authorized to issue is as
follows: (i) One Hundred Thousand (100,000) shares of Class A Nonvoting common stock, Ten
Cents ($.10) par value per share ("Class A Shares"), (ii) One Hundred Thousand (100,000)
shares of Class B Voting common stock, Ten Cents ($.10) par value per share ("Class B Shares")
and (iii) One Million (1,000,000) shares of Class C Voting common stock, Ten Cents ($.10) par
value per share ("Class C Shares") (hereinafter collectively referred to as "Shares"), of which
Thirty -Three Thousand Five Hundred (33,500) Class C Shares are issued and outstanding as of
October 31, 2004, as follows:
FTL 267832.2
Issued and Outstanding Class C Shares
;is of October 31, 2004
Shareholder
J. Robert Behling
Richard D. Centolella
Corry M, Cloward
M, Gregory Cloward
C. Douglas Coalman
Robert M. Dugan
Jose A. Jaguan
Paul D. Kissinger
Joseph J. Lalli
Marco V. Larrea
Edwin M. Linguist
John W. Millet
William B. Renner
Ferrell Brent Safley
Douglas C. Smith
Joaquin R. Vendrell
Total:
; and
Number of
Class C Shares Certificate No.
3,500
2,750
750
2,000
2,000
3,250
1,500
1,500
2,000
2,250
1,500
2,500
2,500
750
3,250
1.500
33,500
19
21
22 •
23
24
25
26
27
28
29
30
31
33
34
35
36
WHEREAS, the Corporation and the shareholders of the Corporation have entered into
an Amended and Restated Shareholders' Agreement dated May 1, 2003, effective June 9, 2003
("Shareholders' Agreement"), setting forth certain restrictions regarding the sale or other transfer
of the Shares. A copy of the Amended and Restated Shareholders' Agreement is attached hereto
as Exhibit "A"; and
WHEREAS, the Corporation desires to sell, and the Purchasing Shareholders desire to
purchase Class C Shares directly from the Corporation upon the terms and conditions provided
herein; and
WHEREAS, the Corporation desires to evidence its consent to the purchase of Class C
Shares by the Purchasing Shareholders; and
WHEREAS, the parties hereto wish to evidence the joinder of Gerbino and Sutton as
parties to the Shareholders' Agreement.
FTL 267832.2 2
NOW, fIJLREFORE, for and in consideration for the mutual promises herein
contained, the parties agree as follows:
1. RECITALS.
The foregoing recitals are true and correct in every respect and are incorporated by
reference herein.
2. PURCHASE OF SHARES. As of the Effective Date, the Purchasing
Shareholders shall purchase from the Corporation Class C Shares as follows:
Number of Class C
Shares Purchased from
Purchasing Shareholder the Corporation
J. Robert Behling 500
Richard D. Centolella 200
Corry M. Cloward 50
M. Gregory Cloward 100
C. Douglas Coolmart 300
Robert M. Dugan 300
John Gerbino 100
Jose A. Jaguan 150
Paul D. Kissinger 175
Joseph J. Lalli 600
Marco V. Larrea 250
Edwin M. Linguist 150
John W. Miller 200
William B. Renner 200
Ferrell Brent Safley 50
Douglas C. Smith 250
Gregg R. Sutton 100
Joaquin R. Vendrell 175
Total Class C.Shares Purchased: 3,850
The purchase price for the Class C Shares shall be the stipulated value of Forty -Five and
00/100 Dollars ($45.00) per Class C Share payable either (1) in a lump sum payment of cash at
closing (as defined in Paragraph 6 hereof) or (ii) in a lump sum payment of cash at closing of
fifty percent (50%) of the purchase price and fifty percent (50%) payable in twelve equal
monthly installments at six(6 %) interest commencing as of the date of closing and continuing on
FTL 267832.2
the same day of each succeeding month until paid in full. At closing, the Corporation shall
deliver Class C stock certificates to the Purchasing Shareholders evidencing their ownership of
said Class C Shares. These Class C stock certificates shall contain the legend described in
Paragraph 7 of the Shareholders' Agreement.
3. CONSENT TO PURCHASE OF SHARES. The Corporation hereby consents
to the sale by the Corporation of Three Thousand Eight Hundred and Fifty (3,850) Class C
Shares to the Purchasing Shareholders under the terms and conditions set forth herein.
4. JOINDER AND AGREEMENT TO BE BOUND BY SHAREHOLDERS'
AGREEMENT. Gerbino and Sutton, by execution of this Agreement, hereby acknowledge that
the Class C Shares being sold and purchased hereunder shall at all times remain subject to the
terms of the Shareholders' Agreement, and that Gerbino and Sutton agree to be bound by all of
the terms and conditions contained therein. The execution of this Agreement shall be considered
the execution of a counterpart of the Shareholders' Agreement by Gerbino and Sutton pursuant
to and in accordance with Paragraph 11 of the Shareholders' Agreement.
5. OWNERSHIP OF CLASS C SHARES AS OF 11/01/04. Following the sale of
the Class C Shares to the Purchasing Shareholders effective as of the Effective Date as provided
herein, the ownership of the issued and outstanding Class C Shares shall be as follows:
Issued and Outstanding Class C Shares
as of November 12004
Shareholder
Number of
Class C Shares
Certificate Nos.
J. Robert Behling 4,000 19, 42
Richard D. Centolella 2,950 21, 45
Cony M. Cloward 800 22, 53
M. Gregory Cloward 2,100 23, 52
C. Douglas Coolman 2,300 24, 40
Robert M. Dugan 3,550 25, 44
Jose A. Jaguan 1,650 26, 51
Paul D. Kissinger 1,675 27, 49
Joseph J. Lalli 2,600 28, 39
Marco V. Larrea 2,500 29, 47
FTL 267832.2 4
Edwin M. Linguist 1,650 30, 50
John W. Miller 2,700 31, 41
William B. Renner 2,700 33, 46
Ferrell Brent Safley 800 34, 54
Douglas C. Smith 3,500 35, 43
Joaquin R. Vendrell 1,675 36, 48
John N. Gerbino 100 37
Gregg R. Sutton 100 38
Total Issued and
Outstanding Class C Shares: 37,350
EMPLOYMENT AGREEMENTS.
Simultaneous with the execution of this Agreement, Gerbino and Sutton shall enter into
Employment Agreements for Professional Shareholder -Employees of Edward D. Stone, Jr., and
Associates, Inc., and Addendum thereto in the forms attached hereto as Exhibits "B-1," "B-2,"
"B-3" and "B-4" and made a part hereof.
7. CLOSING.
The closing of the transactions contemplated herein shall take place at the Corporation's
principal place of business simultaneous with the execution of this Agreement, or at such other
place or date as mutually agreed by the parties. At closing, the Corporation shall deliver the
Class C Shares which are being sold hereunder to the Purchasing Shareholders free and clear of
all liens and encumbrances, and the Purchasing Shareholders shall deliver to the Corporation the
consideration payable for the Class C Shares being purchased hereunder. The Corporation shall
reflect all such transfers of Class C Shares on its corporate records.
8. MISCELLANEOUS.
(a) Florida Law and Venue. This Agreement shall be governed by and
construed and enforced in accordance with the laws of the State of Florida. If any action, suit or
proceeding is instituted as a result of any matter or thing affecting this Agreement, the parties
FTL 267832.2
5
hereby designate Broward County, Florida, as the proper jurisdiction and the venue in which
same is to be instituted.
(b) No Presumption. The fact that this Agreement was prepared by counsel
for the Corporation shall create no presumptions and specifically shall not cause any ambiguities
to be construed against any other party.
(c) Headings. The Paragraph headings contained herein are for reference
purposes only and shall not in any way affect the meaning and interpretation of this Agreement.
(d) Binding Effect. This Agreement shall be legally binding upon and shall
operate for the benefit of the parties hereto, their respective heirs, personal and legal
representatives, transferees, successors and assigns.
(e) Entire Agreement. This Agreement contains the entire agreement of the
parties hereto with respect to the subject matter addressed herein, and all prior understandings
and agreements, whether written or oral, between and among the parties hereto relating to the
subject matter of this Agreement and are merged in this Agreement. Each party specifically
acknowledges, represents and warrants that they have not been induced to sign this Agreement
by any belief that another party will waive or modify the provisions of this Agreement in the
future.
(f) Severability. The invalidity or unenforceability of any particular
provision of this Agreement shall not affect the other provisions hereof, and this Agreement shall
be construed in all respects as if such invalid or unenforceable provisions were omitted.
(g) Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original and all of which together shall constitute
one Agreement.
FTL 267832.2
6
(h) Nonassi2nability. This Agreement, or any provision thereof, may not be
assigned to any other person or entity unless expressly contemplated by any of the provisions of
this Agreement.
(i) Modification. This Agreement may only be modified in writing and
signed by each of the parties hereto.
(j) Plural and Gender. Whenever used herein, the singular number shall
include the plural, the plural the singular, and the use of any gender shall be applicable to all
genders.
(k) Further Assurances. The parties will execute and deliver such further
documents and take such further actions as may reasonably be requested in order to more fully
carry out the intentions of this Agreement.
(1) No Waiver of Breach. The waiver or inaction by any party hereto of a
breach of any condition of this Agreement by another party shall not be construed as a waiver of
any subsequent breach by such party, nor shall it constitute a waiver of that party's rights, actual
or inherent. The failure of any party hereto in any instance to insist upon a strict performance of
the terms of this Agreement or to exercise any option herein shall not be construed as a waiver or
a relinquishment in the future of such term or option, but that the same shall continue in full
force and effect.
(m) Attorneys' Fees and Costs. Should it become necessary for any party to
institute any legal action to enforce any of the provisions of this Agreement, the prevailing party
shall be entitled to an award of reasonable attorneys' fees and costs through all appellate levels.
(n) Notices. All notices or communications provided for herein or incidental
to the transactions contemplated hereby shall be in writing and shall be deemed duly given if
delivered personally or sent by certified mail or registered mail, return receipt requested, to the
FTL 267832.2 7
parties at their respective addresses as reflected on the records of the Corporation or at such other
address as a party may have specified by prior written notice to the other parties.
(o) Arbitration. All controversies arising out of or connected with this
Agreement including any of its terms or conditions, the transactions contemplated hereby, or the
alleged breach or unenforceability of any of its terms or conditions, and including any
controversy as to whether or not such dispute is arbitrable, shall be settled by arbitration in
accordance with the rules then in effect of the Florida Arbitration Code, F.S. 682; provided,
however, that notwithstanding such rules then in effect, (i) the Florida Rules of Evidence shall be
controlling and (ii) the parties shall have rights to employ all types of discovery available under
the Florida Rules of Civil Procedure. In addition, this clause shall not limit any party's right to
obtain any provisional remedy, including, without limitation, injunctive relief, writs for recovery
of possession or similar relief from any court of competent jurisdiction as may be necessary, in
such party's judgment, to protect such party's rights under this Agreement. The arbitration board
shall consist of three arbitrators, one chosen by the Corporation, one chosen by the Purchasing
Shareholders, as a group, and the third selected by the two arbitrators so chosen. The decision of
the arbitrators, including a determination of the amount of damages suffered, shall be conclusive,
final and binding upon the parties hereto, their heirs, successors and assigns. Judgment upon any
award rendered by the arbitrators may be entered in the Seventeenth Judicial Circuit Court in and
for Broward County, Florida, or in any court having jurisdiction thereof. The parties agree to be
bound by any award pursuant to this paragraph. Notwithstanding anything in the foregoing, any
party may institute proceedings for temporary or permanent injunctive relief in a court within the
Seventeenth Judicial Circuit Court or any court having jurisdiction thereof, pending review by or
enforcement of the arbitrator's judgment.
(p) Equitable Remedies. It is recognized and hereby acknowledged by the
parties that a breach by any party of any of the provisions may cause irreparable harm and
damage to the non -breaching party, the monetary amount of which may be virtually impossible
to ascertain. As a result, the parties recognize and hereby acknowledge that notwithstanding
Paragraph 17.(o), above, the non -breaching party shall be entitled to specific performance,
injunctive relief or other appropriate equitable remedy from any court of competent jurisdiction,
FTL 267832.2
enjoining and restraining any violation of and/or mandating compliance with any or all of the
provisions by the breaching party or any of the breaching party's employees, independent
contractors, affiliates, associates or agents, either directly or indirectly.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
day and year first above written.
EDWARD D. STONE, JR AND
ASSOCIATES, INC.
By:
JOSEPH J. EALLI, President
,-RURCHASING SHAREHOLDERS:
CHARD D. CENTOLELLA
EDWIN M. LINQUIST JOHNW. MILLER
WILLIAM B. RT,A�ATER
DO
HN N. GERBINO
FTL 267832.2
9
FERRELL BRENT,FA _, Y
A IN R. ' i REL