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EXHIBIT 10.11
Stock Transfer and Option Termination Agreement dated December 23, 1997 between
the Registrant and Xxxxxx X Xxxxx
STOCK TRANSFER AND OPTION TERMINATION AGREEMENT
THIS AGREEMENT is entered into this 23rd day of December, 1997, by and
between Xxxxxx X. Xxxxx, individually ("Xxxxx") and Penda Corporation, a Florida
corporation ("Penda").
WITNESSETH:
STOCK
WHEREAS, Xxxxx is the record holder of 16,007.529 shares of common
stock, $.01 par value (the "Stock"), of Penda (the "Xxxxx Shares").
WHEREAS, Xxxxx desires to sell the Xxxxx Shares to Penda, and Penda
desires to purchase the Xxxxx Shares, under the terms set forth herein;
IRR OPTIONS
WHEREAS, Xxxxx and Penda, among others, are parties to a Subscription
and Shareholders' Agreement, dated as of March 15, 1994, as amended (the
"Shareholders' Agreement");
WHEREAS, pursuant to Section 12.1 of the Shareholders' Agreement, Xxxxx
granted options to certain employees (and former employees) of the Company to
purchase an aggregate of 421.054 shares of Common Stock, upon the sale or other
disposition for value of Stock by Xxxxx (the "IRR Options Granted by Xxxxx");
WHEREAS, (i) of the IRR Options Granted by Xxxxx, Xxxxx granted options
to purchase 92.632 shares of Stock to himself, and (ii) Xxxxx was granted
options to purchase Stock by certain other shareholders of Penda pursuant to
Section 12.1 of the Shareholders' Agreement (the options referred to in clauses
(i) and (ii) are referred to collectively herein as the "IRR Options Held by
Xxxxx");
WHEREAS, Xxxxx and Penda desire to evidence their agreement that, in
connection with the transactions contemplated hereby, the IRR Options Held by
Xxxxx, if any exist, shall be canceled; and
WHEREAS, Xxxxx desires to assign to Penda and Penda desires to accept
and assume the obligations of Xxxxx (if any) under the Shareholders' Agreement
with respect to the IRR Options Granted by Xxxxx;
NOW, THEREFORE, in consideration of the premises and the consideration
hereinafter set forth, the receipt, adequacy, and sufficiency of which
consideration is hereby acknowledged, Xxxxx and Penda hereby agree as follows:
1. Incorporation. The preamble and recitals set forth above are
incorporated in and made a part of this Agreement.
2. Agreement Controlling. In the event of any conflict between the
provisions of this Agreement, the Shareholders' Agreement, the Management
Options or the Penda Corporation First Amended and Restated Management Stock
Option Plan, as amended (the "Plan"), this Agreement shall be controlling.
3. Sale of Xxxxx Shares. Xxxxx hereby conveys to Penda the Xxxxx
Shares, free and clear of any liens or encumbrances of any kind whatsoever.
Xxxxx holds of record and owns beneficially the Xxxxx Shares and has good title
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to the Xxxxx Shares, free and clear of any restrictions on transfer, pledges,
liens, encumbrances, charges or other security interests (whether or not related
to the extension of credit or the borrowing of money), claims, and demands,
other than restrictions under applicable securities laws and any of the
foregoing which arise under any of the documents referred to in this Agreement.
Except to the extent arising under any of the documents referred to in this
Agreement, Xxxxx is not a party to any option, warrant, purchase right, or other
contract or commitment that could require him to sell, transfer, or otherwise
dispose of any Stock. Xxxxx is not a party to any voting trusts, proxies, or
other agreements or understandings with respect to the voting of any capital
stock of Penda.
4. Cancellation of IRR Options Held by Xxxxx. Penda and Xxxxx agree
that the IRR Options Held by Xxxxx, if any exist, shall be deemed canceled and
of no further force and effect.
5. Assignment and Assumption of IRR Options Granted by Xxxxx. Xxxxx
hereby assigns to Penda all of Xxxxx'x rights and obligations under the IRR
Options Granted by Xxxxx (if any) in accordance with the Article 12 of the
Shareholders' Agreement (the "Assumed Obligations"), and Penda hereby assumes
and agrees to satisfy and discharge all of the Assumed Obligations.
6. Consideration. For valid consideration, including but not limited to
the sale, assignment, and cancellations set forth above, Penda agrees to pay to
Xxxxx the sum of Eight Hundred Fifty Thousand Dollars ($850,000).
7. Miscellaneous.
(a) Severability. Whenever possible, each provision of this
Agreement will be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement is held to be invalid,
illegal or unenforceable in any respect under any applicable law or rule in any
jurisdiction, such invalidity, illegality or unenforceability will not affect
any other provision or any other jurisdiction, but this Agreement will be
reformed, construed and enforced in such jurisdiction as if such invalid,
illegal or unenforceable provision had never been contained herein.
(b) Choice of Law. This Agreement shall be governed and
construed in accordance with the laws of the State of Florida without regard to
conflicts of laws principles thereof and all questions concerning the validity
and construction hereof shall be determined in accordance with the laws of said
state. The Company and Xxxxx hereby irrevocably submit to the exclusive
jurisdiction of any state or federal court sitting in the County of Dade, State
of Florida, in any action or proceeding arising out of or relating to this
Agreement and each such person hereby irrevocably agrees, on behalf of himself
or itself and on behalf of such person's heirs, executors, administrators,
successors and assigns, that all claims in respect of such action or proceeding
may be heard and determined in any such court and irrevocably waives any
objection such person may now or hereafter have as to the venue of any such
suit, action or proceeding brought in such a court or that such court is an
inconvenient forum. The Company and Xxxxx further agree that the mailing by
certified or registered mail, return receipt requested, to the addresses
specified for notice in this Agreement, of any process or summons required by
any such court shall constitute valid and lawful service of process against
them, without the necessity for service by any other means provided by statute
or rule of court. In the event that an action or proceeding arising out of or
relating to this Agreement shall be commenced in a court described in the second
sentence of this Section and such court, by a final and nonappealable order,
shall refuse to exercise in personam jurisdiction over the Company or Xxxxx, as
the case may be, then the parties hereto shall not be precluded from litigating
such action or proceeding in any other court of competent jurisdiction.
(c) Successors and Assigns. This Agreement shall be binding
upon the Parties, their heirs, executors, administrators, successors and
assigns, and the Parties covenant and agree that they and their respective
heirs, executors, administrators, successors and assigns will execute any and
all instruments, releases, assignments and consents that may be reasonably
required of them to more fully execute the provisions of this Agreement.
(d) Counterparts. This Agreement may be executed in several
counterparts, each of which shall serve as an original for all purposes, but all
copies of which shall constitute one and the same Agreement.
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(e) Headings. All headings set forth in this Agreement are
intended for convenience only and shall not control or affect the meaning,
construction or effect of this Agreement or of any of the provisions thereof.
(f) Amendments and Waivers. No provision of this Agreement may
be amended or waived without the prior written consent of the Parties.
(g) Entire Agreement. This Agreement constitutes the entire
Agreement of the parties hereto with respect to the transactions contemplated
hereby.
(h) No Third Party Beneficiary. Except for the Company and
Xxxxx and their respective heirs, executors, administrators, successors and
assigns, nothing expressed or implied in this Agreement is intended, or will be
construed, to confer upon or give any person other than the parties hereto and
their respective heirs, personal representatives, successors and assigns any
rights or remedies under or by reason of this Agreement.
(i) Further Assurances. Each party agrees to execute such
further and other assurances and to do such other acts as each party may
reasonably require to implement the intentions of this Agreement.
IN WITNESS WHEREOF, the parties have executed and delivered this
Agreement on the date first above written:
XXXXXX X. XXXXX
________________________________(SEAL)
PENDA CORPORATION
By:___________________________________
Xxx Xxxxx, Vice President &
Chief Financial Officer
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