Contract
EXHIBIT 7.1
This
Option Agreement (this “Agreement”)
dated as of October 27, 2009 to be effective as of October 28, 2009, is by
and among Xxxxxx X. XxXxxxx, Xxxxxx X. Xxxxx and Xxxxxxxx X. Skoda, as Trustee
of the Xxxxxxxx X. Skoda Revocable Trust dated June 5, 2005 (each an “Optionee”
and collectively, the “Optionees”)
and Xxxxxxx X. & Xxxxxxx X. Xxxxxx Children’s Trust (“Trust”),
JBJ Lending Company (“JBJ”), JEK
Sep/Property, LP (“JEK”) and
Eminence Interests, LP (“Eminence”)
(Trust, JBJ, JEK and Eminence are collectively referred to herein as “Seller”).
WITNESSETH
WHEREAS,
Seller currently owns, beneficially and of record, 1,120,014 shares of common
stock of WCA Waste Corporation (the “Company”),
a Delaware corporation (the “Seller
Shares”); and
WHEREAS,
Seller has agreed to grant Optionees an option to purchase up to
747,014 of the Seller Shares (the “Optioned
Securities”); and
WHEREAS,
Optionees have agreed to accept the Option (as hereinafter defined) on the terms
and conditions hereinafter set forth; and
WHEREAS, Optionees desire to have the
ability to purchase, and Seller desires to sell, the Optioned Securities on the
terms and conditions hereinafter set forth; and
NOW,
THEREFORE, in consideration of $1.00 and for other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, the
parties agree as follows:
1. Terms and Conditions of
Option.
1.1 Option. Seller hereby
grants Optionees (or such person or entity as shall be designated by Optionees)
an irrevocable, exclusive right and option to purchase up to all of
the Optioned Securities, subject to the terms and conditions contained in this
Agreement (the “Option”). Each
Optionee may exercise the Option in the amounts set forth opposite such
Optionee’s name on Exhibit A hereto, in whole or in part in such Optionee’s sole
discretion.
The
Option shall be exercisable during the Option Term (as hereinafter
defined). The exercise price for the Optioned Securities shall equal
$4.25 per share (the “Exercise
Price”) and the Exercise Price shall be due and payable, in cash in full
for the Optioned Securities exercised. The “Option
Term” shall mean the period beginning on the date hereof and ending on
December 24, 2009. Each Optionee may elect, in such Optionee’s sole
and unfettered discretion, subject to the conditions set forth herein to
exercise or not exercise the Option, in whole or in part, at any time during the
Option Term.
1.2 Exercise of
Option.
(a) In
order to exercise the Option, an Optionee must deliver to Seller, on or prior to
the last day of the Option Term, (i) written notice of such Optionee’s desire to
exercise the Option, or any portion thereof (the “Option Exercise
Notice”) by registered mail or by overnight courier, (ii) the aggregate
Exercise Price, and (iii) the written representation and/or other information
described in Section 3 below.
(b) Seller
will deliver to the Company’s transfer agent and registrar the certificates
representing the total Optioned Securities exercised pursuant to Section 1.2(a),
together with an assignment and/or stock power with instructions to deliver to
such Optionee one or more certificates representing the total Optioned
Securities exercised, in such denomination and registered in such name or names
as each Optionee shall have specified to the Seller. The Seller
represents and warrants to the Optionee that upon receipt of the Exercise Price
the Seller will transfer to such Optionee, good and marketable title to the
Optioned Securities exercised free and clear of all liens, claims and
encumbrances of any kind within five business days of receipt of the Option
Exercise Notice.
(c) The
Option Exercise Notice shall be deemed to have been delivered (A) by facsimile
to Seller upon confirmation of receipt by the Optionee, (B) five business days
after being mailed by registered mail (return receipt requested and postage
prepaid) to the recipient or (C) one business day after being sent by overnight
courier (receipt confirmation requested).
(d) The
unexercised portion, if any, of the Option shall automatically terminate and
become null and void at 11:59 p.m. on December 24, 2009.
1.3 Conditions. If
the Seller no longer owns any Seller Shares, Xxxxxxx X. Xxxxxxxxx shall resign
as a member of the board of directors of the Company and such resignation shall
be effective on that date.
2. Representations and
Warranties of Seller. Each Seller
represents and warrants to each Optionee on the date hereof as
follows:
2.1 Ownership of Optioned
Securities. Such Seller is the owner of the Optioned
Securities, has good and marketable title to the Optioned Securities and the
Optioned Securities are not subject to any mortgage, pledge, encumbrance,
security interest or other lien. There are no contractual
restrictions on the transfer of any of the Optioned Securities. Such
Seller’s sale of the Optioned Securities will not violate any agreement that is
binding on such Seller. Such Seller is not a party to any agreement,
written or oral, creating rights in respect to the Optioned Securities in any
third person or relating to the voting of the Optioned
Securities. There are no existing warrants, options, stock purchase
agreements, redemption agreements, calls or rights to subscribe of any character
relating to the Optioned Securities.
2.2 Authorization,
etc. Such Seller has the power, competence, capacity and
authority to execute and deliver this Agreement and to carry out the
transactions contemplated hereby. This Agreement has been duly
executed and delivered by such Seller. This Agreement constitutes a
legal, valid and binding agreement of such Seller, assuming the due execution of
the Agreement by Optionee, enforceable against such Seller in accordance with
its terms, except that (i) such enforcement may be limited by bankruptcy,
insolvency, reorganization, moratorium or other similar laws now or hereafter in
effect relating to creditors' rights generally and (ii) the remedy of
specific performance and injunctive and other forms of equitable relief may be
subject to equitable defenses and to the discretion of the court before which
any proceeding therefor may be brought.
2.3 No Conflict. The
execution of this Agreement and the consummation of the transactions
contemplated hereby do not and will not (a) constitute a breach or default under
any agreement or instrument to which such Seller is a party, or (b) violate any
order, writ, injunction or decree of any court, administrative agency or
governmental body applicable to such Seller, or (c) conflict with or result in
the breach of the terms, conditions or provision of any organizational documents
of such Seller.
3. Representations and
Warranties of each Optionee. Each
Optionee represents and warrants to Seller on the date hereof as
follows:
3.1 Authorization,
etc. Such Optionee has the power, competence,
capacity and authority to execute and deliver this Agreement and to carry out
the transactions contemplated hereby. This Agreement has been duly
executed and delivered by such Optionee. This Agreement constitutes a
legal, valid and binding agreement of such Optionee, assuming the due execution
of the Agreement by Seller, enforceable against such Optionee in accordance
with its terms, except that (i) such enforcement may be limited by
bankruptcy, insolvency, reorganization, moratorium or other similar laws now or
hereafter in effect relating to creditors' rights generally and (ii) the
remedy of specific performance and injunctive and other forms of equitable
relief may be subject to equitable defenses and to the discretion of the court
before which any proceeding therefor may be brought.
3.2 No Conflict. The
execution of this Agreement and the consummation of the transactions
contemplated hereby do not and will not (a) constitute a breach or default under
any agreement or instrument to which such Optionee is a party, (b) violate any
order, writ, injunction or decree of any court, administrative agency or
governmental body applicable to such Optionee or (c) conflict with or result in
the breach of the terms, conditions or provision of any organizational documents
of such Optionee.
3.3
Purchase for
Investment, etc. Each Optionee
(a)
is an “accredited investor” as such term is defined under Rule 501 under
the Securities Act of 1933, as amended (the “Securities
Act”);
(b) understands
that ownership of the Optioned Securities involves substantial risk and, is
capable of bearing the economic risks associated with the investment in the
Optioned Securities;
(c) has
performed its own due diligence in making the decision to invest in the Optioned
Securities and has not relied on any statement, understanding, or representation
of Sellers other than as expressly provided herein and understands that the
Company is not a party to or bound by this Agreement;
(d) has
reviewed the Company’s filings pursuant to the Securities Exchange Act of 1934,
as amended, and related exhibits (including documents relating to the Company’s
preferred stock) through the date of this Agreement; and
(e) upon
exercise of the Option, is acquiring the Optioned Securities for his own
account, for investment and not with a view to any “distribution” thereof within
the meaning of the Securities Act, and has no present intention of selling,
transferring, or otherwise distributing such securities.
4. Exclusivity/
Restriction. During the Option Term, Seller shall not sell,
assign, convey or otherwise transfer to any third party, in whole or in part,
the ownership of the Optioned Securities, pledge such shares, or grant any right
on such shares to any third party.
5. Rights Prior to Exercise of
Option. Each Optionee shall not have any rights as a
stockholder with respect to any of the Optioned Securities prior to the date on
which the Optionee is recorded as the holder of such Optioned Securities on the
records of the Company.
6.
Legend. Upon exercise of the Option, the share certificate evidencing
the Optioned Securities hereunder when delivered to the Optionee shall be
endorsed with only the following legend:
“THE
SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, OR THE SECURITIES LAWS OF ANY STATE, AND MAY
NOT BE SOLD, TRANSFERRED, ASSIGNED, PLEDGED OR HYPOTHECATED UNLESS AND UNTIL
REGISTERED UNDER SUCH ACT AND/OR APPLICABLE STATE SECURITIES LAWS, OR UNLESS THE
CORPORATION HAS RECEIVED AN OPINION OF COUNSEL OR OTHER EVIDENCE, REASONABLY
SATISFACTORY TO THE CORPORATION AND ITS COUNSEL, THAT SUCH REGISTRATION IS NOT
REQUIRED.”
7. Further Assurances.
Subject to the terms and conditions of this Agreement, each of the parties shall
use all reasonable efforts to take, or cause to be taken, all action and to do,
or cause to be done, all things necessary, proper or advisable under applicable
laws and regulations to consummate and make effective the transactions
contemplated by this Agreement, including providing information and using
reasonable efforts to obtain all necessary or appropriate waivers, consents and
approvals, and effecting all necessary registrations and filings. In
case at any time any further action is necessary or desirable to carry out the
purposes of this Agreement, the proper officers and directors of the parties
shall execute such further documents and shall take such further action as shall
be necessary or desirable to carry out the purposes of this Agreement, in each
case to the extent not inconsistent with applicable law.
8. Indemnification.
8.1 Indemnification by
Each
Optionee. Each Optionee agrees that he shall indemnify
and hold harmless the Seller or any of the Seller’s agents, officers, employees,
registered representatives, directors, or control persons who is a party or is
threatened to be made a party to any threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative or investigative,
from and against all claims, losses, liabilities and expenses (including,
without limitation, reasonable attorney’s fees, judgments, fines and amounts
paid in settlement), actually and reasonably incurred, arising out of or in
connection with any breach of the representations and warranties made by such
Optionee to the Seller in this Agreement.
8.2 Indemnification by
Seller. The Seller, jointly and severally, agree that they
shall indemnify and hold harmless each Optionee or any of such Optionee’s heirs,
assigns, affiliates, agents or legal representatives who is a party or is
threatened to be made a party to any threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative or investigative,
from and against all claims, losses, liabilities and expenses (including,
without limitation, reasonable attorney’s fees, judgments, fines and amounts
paid in settlement), actually and reasonably incurred, arising out of or in
connection with any breach of the representations and warranties made by any
Seller to such Optionee in this Agreement.
9. Notice Addresses.
Except as may be otherwise provided herein, any notice or other communication or
delivery required or permitted hereunder shall (i) be in writing and shall be
delivered personally, by registered mail (postage prepaid), by a nationally
recognized overnight courier service, or by electronic mail or facsimile
transmission; (ii) be deemed given when so delivered personally, if mailed, five
business days after being mailed by registered mail (return receipt requested
and postage prepaid) to the recipient, one business day after being sent by
overnight courier (receipt confirmation requested), or, if transmitted
electronically or by facsimile, when received by the intended recipient and
acknowledged to the sender and (iii) be delivered to the recipient at the
following address:
If to
Optionee:
Xxxxxx X.
XxXxxxx or Xxxxxx X. Xxxxx
0000
Xxxxxxxx Xxxxxxxxx, Xxxxx 000
Xxxxxxxx
Xxxxxxx, Xxxx 00000
Facsimile: 440-995-5111
Xxxxxxxx
X. Skoda Revocable Trust dated June 5, 2005
c/x
Xxxxxxx Skoda
0000 Xxxx
Xxxxx
Xxxxxxxx
Xxxxxxx, Xxxx 00000
Fax -
(000) 000-0000
If to
Seller:
EFO
Holdings, c/o Xxxxxxx Xxxxxxxxx
0000
Xxxxx Xxxxxx, Xxxxx 000
Xxxxxx,
XX 00000
Facsimile:
000-000-0000
10. Miscellaneous.
10.1 The
terms, covenants and provisions of this Agreement shall inure to the benefit of
the parties, their successors and assigns, and shall be binding on the parties
and their respective successors and assigns. Each Optionee may assign
its rights under this Agreement without written consent from Seller so long
as any assignees are “accredited investors” as defined in Rule 501 under the
Securities Act. This Agreement is not intended to confer any
third-party beneficiary rights upon any person.
10.2 This
Agreement contains the entire understanding of the parties regarding its subject
matter, and supersedes all prior negotiations, understandings and agreements of
the parties with respect thereto.
10.3 This
Agreement may not be amended except by written agreement signed by the
parties.
10.4 The
provisions of this Agreement are independent of and separable from each other,
and no provisions shall be affected or rendered invalid or unenforceable by the
invalidity or inability to enforce any other provisions.
10.5 No
failure or delay by any party to this Agreement to exercise any right, remedy,
power or privilege under this Agreement shall be a waiver thereof; nor shall any
single or partial exercise of the same or of any other right, remedy, power or
privilege with respect to any occurrence be construed as a waiver of any such
right, remedy, power or privilege with respect to any other occurrence. No
waiver shall be effective unless it is in writing and is signed by the party
asserted to have granted such waiver.
10.6
Except as otherwise herein provided, the rights and remedies provided herein
shall be cumulative and not exclusive of any rights or remedies provided by
applicable law.
10.7 Each
party hereto shall be responsible for and pay its own legal, accounting and
other professional fees and charges and all other costs and expenses incurred in
connection with the transactions contemplated herein.
10.8 This
Agreement shall be construed in accordance with and governed by the laws of the
State of Ohio, without regard to the conflicts of laws and rules
thereof.
10.9 Notwithstanding
any provisions to the contrary in this Agreement, the right of each Optionee to
call for the delivery of the Optioned Securities upon exercise in exchange for
the Purchase Price is unique, and accordingly, the parties agree that, in
addition to any other remedies that may be available to each Optionee in law or
at equity, each Optionee shall have the right to seek enforcement of Seller’s
obligations to deliver the Optioned Securities by an action for specific
performance or injunctive relief to the full extent permitted by
law.
10.10 This
Agreement may be executed in one or more counterparts, each of which shall be
deemed an original.
[Signature
page follows]
IN
WITNESS WHEREOF, the parties have executed this Agreement as of the day and year
first above written.
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OPTIONEES:
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/s/ Xxxxxx X.
XxXxxxx
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Xxxxxx
X. XxXxxxx
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/s/ Xxxxxx X.
Xxxxx
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Xxxxxx
X. Xxxxx
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/s/ Xxxxxxxx X.
Skoda
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Xxxxxxxx
X. Skoda, as Trustee of the Xxxxxxxx X.
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Skoda
Revocable Trust dated June 5, 2005
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SELLER:
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Xxxxxxx
X. & Xxxxxxx X. Xxxxxx Children’s Trust
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By:
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/s/ Xxxxxxx X.
Xxxxxxxxx
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Xxxxxxx
X. Xxxxxxxxx, Trustee
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JEK
Sep/Property, LP
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By:
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JEK Sep/Property Management, LLC, Its General Partner |
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By:
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/s/ Xxxxxxxx X.
Xxxxxxxx
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Xxxxxxxx
X. Xxxxxxxx, Manager
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Eminence
Interests, LP
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By:
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Eminence Genpar, Inc., Its General Partner |
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By:
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/s/ Xxxxxxx X.
Xxxxxxxxx
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Xxxxxxx
X. Xxxxxxxxx, President
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JBJ
Lending Company
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By:
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/s/ Xxxxxxx X.
Xxxxxxxxx
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Xxxxxxx
X. Xxxxxxxxx, President
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/s/ Xxxxxxx X.
Xxxxxxxxx
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Xxxxxxx
X. Xxxxxxxxx
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EXHIBIT
A
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Name
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Optioned Securities
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Xxxxxx
X. XxXxxxx
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400,000 | |||
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Xxxxxx
X. Xxxxx
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347,014 | * | ||
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Xxxxxxxx
X. Skoda Revocable Trust dated June 5, 2005
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347,014 | * | ||
*Each of
Xxxxxx X. Xxxxx and Xxxxxxxx X. Skoda Revocable Trust may exercise the Option up
to the aggregate of 347,014 Optioned Securities, in whole or in part, in each
Optionee’s sole discretion and in such amounts between each other as they so
agree; provided that the total number of Optioned Securities that can be
exercised between the two of them cannot exceed 347,014 shares. The
total number of Optioned Securities that can be exercised by the Optionees
cannot exceed 747,014 shares.
