0001144204-09-055526.txt : 20091030 0001144204-09-055526.hdr.sgml : 20091030 20091030115910 ACCESSION NUMBER: 0001144204-09-055526 CONFORMED SUBMISSION TYPE: SC 13D PUBLIC DOCUMENT COUNT: 3 FILED AS OF DATE: 20091030 DATE AS OF CHANGE: 20091030 GROUP MEMBERS: DANIEL J. CLARK GROUP MEMBERS: GREGORY J. SKODA GROUP MEMBERS: PATRICIA A. SKODA AS TRUSTEE OF THE PATRICIA A. SKODA REVOCA SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: WCA WASTE CORP CENTRAL INDEX KEY: 0001282398 STANDARD INDUSTRIAL CLASSIFICATION: REFUSE SYSTEMS [4953] IRS NUMBER: 200829917 FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D SEC ACT: 1934 Act SEC FILE NUMBER: 005-79924 FILM NUMBER: 091146948 BUSINESS ADDRESS: STREET 1: ONE RIVERWAY STREET 2: SUITE 1400 CITY: HOUSTON STATE: TX ZIP: 77056 BUSINESS PHONE: 7132922400 MAIL ADDRESS: STREET 1: ONE RIVERWAY STREET 2: SUITE 1400 CITY: HOUSTON STATE: TX ZIP: 77056 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: LoConti Joseph E. CENTRAL INDEX KEY: 0001025708 FILING VALUES: FORM TYPE: SC 13D MAIL ADDRESS: STREET 1: 6140 PARKLAND BLVD. CITY: MAYFIELD HEIGHTS STATE: OH ZIP: 44124 FORMER COMPANY: FORMER CONFORMED NAME: LOCONTI JOSEPH E DATE OF NAME CHANGE: 19961022 SC 13D 1 v164240_sch13d.htm

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

SCHEDULE 13D

(Rule 13d-101)

INFORMATION TO BE INCLUDED IN STATEMENTS FILED PURSUANT TO RULE 13d-1(a) AND AMENDMENTS THERETO FILED PURSUANT RULE 13d-2(a)

(Amendment No. )

WCA Waste Corporation

(Name of Issuer)

Common Stock

(Title of Class of Securities)

92926K103

(CUSIP Number)

Joseph E. LoConti, 6140 Parkland Boulevard, Mayfield Heights, OH 44124 (440) 995-5600

(Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications)

October 28, 2009

(Date of Event which Requires Filing of this Statement)

If the filing person has previously filed a statement on Schedule 13G to report the acquisition which is the subject of this Schedule 13D, and is filing this schedule because of Rule 13d-1(e), 13d-1(f) or 13d-1(g), check the following box. ¨

Note. Schedules filed in paper format shall include a signed original and five copies of the schedule including all exhibits. See § 240.13d-7 for other parties to whom copies are to be sent.

The remainder of this cover page shall be filled out for a reporting person’s initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter disclosures provided in a prior cover page.

The information required on the remainder of this cover page shall not be deemed to be “filed” for the purpose of Section 18 of the Securities Exchange Act of 1934 or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes)

CUSIP No. 92926K103

Page 2 of 10 Pages


1	NAME OF REPORTING PERSON I.R.S. IDENTIFICATION NO. OF ABOVE PERSON (ENTITIES ONLY) Joseph E. LoConti
2	CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*	(a) x
	(see instructions)	(b) o
3	SEC USE ONLY
4	SOURCE OF FUNDS (see instructions) PF
5	CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e)	o
6	CITIZENSHIP OR PLACE OF ORGANIZATION United States of America

NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH	7	SOLE VOTING POWER
		1,720,386 *
	8	SHARED VOTING POWER

	9	SOLE DISPOSITIVE POWER
		1,720,386 *
	10	SHARED DISPOSITIVE POWER

11	AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 1,720,386 *
12	CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (see instructions)	x
13	PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW 11 10.40%
14	TYPE OF REPORTING PERSON (see instructions) IN

* Includes an option to purchase up to 400,000 Shares at $4.25 per share and such option is currently exercisable.

CUSIP No. 92926K103

Page 3 of 10 Pages


1	NAME OF REPORTING PERSON I.R.S. IDENTIFICATION NO. OF ABOVE PERSON (ENTITIES ONLY) Daniel J. Clark
2	CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*	(a) x
	(see instructions)	(b) o
3	SEC USE ONLY
4	SOURCE OF FUNDS (see instructions) PF
5	CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e)	o
6	CITIZENSHIP OR PLACE OF ORGANIZATION United States of America

NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH	7	SOLE VOTING POWER
		301,813
	8	SHARED VOTING POWER
		347,014 *
	9	SOLE DISPOSITIVE POWER
		301,813
	10	SHARED DISPOSITIVE POWER
		347,014 *

11	AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 648,827 *
12	CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (see instructions)	x
13	PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW 11 3.92%
14	TYPE OF REPORTING PERSON (see instructions) IN

* Includes an option to purchase up to 347,014 Shares at $4.25 per share which is held jointly with the Trust and such option is currently exercisable.

CUSIP No. 92926K103

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1	NAME OF REPORTING PERSON I.R.S. IDENTIFICATION NO. OF ABOVE PERSON (ENTITIES ONLY) Gregory J. Skoda
2	CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*	(a) x
	(see instructions)	(b) o
3	SEC USE ONLY
4	SOURCE OF FUNDS (see instructions)
5	CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e)	o
6	CITIZENSHIP OR PLACE OF ORGANIZATION United States of America

NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH	7	SOLE VOTING POWER

	8	SHARED VOTING POWER
		462,160 *
	9	SOLE DISPOSITIVE POWER

	10	SHARED DISPOSITIVE POWER
		462,160 *

11	AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 462,160 *
12	CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (see instructions)	x
13	PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW 11 2.79%
14	TYPE OF REPORTING PERSON (see instructions) IN

* Shares held by the Patricia A. Skoda Revocable Trust dated June 5, 2005 of which Mr. Skoda’s wife, Patricia A. Skoda, is the trustee and includes an option to purchase up to 347,014 Shares at $4.25 per share which option is held jointly by the Trust and Mr. Clark, and such option is currently exercisable.

CUSIP No. 92926K103

Page 5 of 10 Pages


1	NAME OF REPORTING PERSON I.R.S. IDENTIFICATION NO. OF ABOVE PERSON (ENTITIES ONLY) Patricia A. Skoda as Trustee of the Patricia A. Skoda Revocable Trust
2	CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*	(a) x
	(see instructions)	(b) o
3	SEC USE ONLY
4	SOURCE OF FUNDS (see instructions) WC
5	CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e)	o
6	CITIZENSHIP OR PLACE OF ORGANIZATION United States of America

NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH	7	SOLE VOTING POWER

	8	SHARED VOTING POWER
		462,160 *
	9	SOLE DISPOSITIVE POWER

	10	SHARED DISPOSITIVE POWER
		462,160 *

11	AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 462,160 *
12	CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (see instructions)	o
13	PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW 11 2.79%
14	TYPE OF REPORTING PERSON (see instructions) IN

CUSIP No. 92926K103

Page 6 of 10 Pages

Item 1. Security and the Issuer.

This Schedule 13D relates to the common stock, par value $0.01 per share (the “Shares”), of WCA Waste Corporation (the “Issuer”). The Issuer has its principal offices at One Riverway, Suite 1400, Houston, Texas 77056.

Item 2. Identity and Background.

(a) Pursuant to Rule 13d-1(k), this Schedule 13D is filed by Joseph E. LoConti, Daniel J. Clark, Gregory J. Skoda and Patricia A. Skoda, as the trustee of the Patricia A. Skoda Revocable Trust dated June 5, 2005 (the “Trust”), an Ohio trust (each a “Reporting Person” and collectively, the “Reporting Persons”), for the purpose of reporting the acquisitions of Shares and the Option (as defined below) in a privately-negotiated transaction by Mr. LoConti, Mr. Clark and the Trust. Mr. and Mrs. Skoda are husband and wife.

(b) The business address of Mr. LoConti and Mr. Clark is 6140 Parkland Boulevard, Mayfield Heights, Ohio 44124. The business address of Mr. Skoda, Mrs. Skoda and the Trust is 6685 Beta Drive, Mayfield Village, Ohio 44143.

(c) Mr. LoConti is special counsel to United Nations Insurance Agency, Inc., a specialty insurance agency with its principal place of business at 6140 Parkland Boulevard, Mayfield Heights, Ohio 44124. Mr. Clark is an entrepreneur. Mr. Skoda is the chairman and one of the founders of Skoda Minotti, a CPA and business and financial advisor firm located at 6685 Beta Drive, Mayfield Village, Ohio 44143. The Trust was established for estate planning purposes.

(d) Negative with respect to the Reporting Persons.

(e) Negative with respect to the Reporting Persons.

(f) Messrs. LoConti and Clark and Mr. and Mrs. Skoda are citizens of the United States of America. The Trust is organized under the laws of the State of Ohio.

Item 3. Source and Amount of Funds.

The Shares and the Option (as defined below) reported in Item 5(c) as having been acquired by Mr. LoConti, Mr. Clark, and the Trust on October 28, 2009 in a privately-negotiated transaction were acquired using personal funds of Messrs. LoConti and Clark and working capital of the Trust. Mr. LoConti, Mr. Clark and the Trust did not borrow any funds to purchase any of the Shares.

Item 4. Purpose of the Transaction.

Each Reporting Person has acquired the Shares and the Option, as applicable, for investment purposes. Each Reporting Person expects to continuously review his or its investment in the Issuer and, depending on various factors, including but not limited to, the price of the Shares, the terms and conditions of any transaction, prevailing market conditions and such other considerations as they each deem relevant, each Reporting Person may at any time or from time to time, and subject to any required regulatory approvals, acquire additional Shares, preferred stock or securities convertible into or exercisable or exchangeable for Shares from time to time on the open market, in privately-negotiated transactions, directly from the Issuer, or upon the exercise or conversion of securities convertible into or exercisable for Shares, including the Option.

CUSIP No. 92926K103

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Each Reporting Person also may, at any time, subject to compliance with applicable securities laws and regulatory requirements, dispose of some or all of his or its Shares or the Option or such other Issuer securities he or it owns or may subsequently acquire, depending on various factors, including, but not limited to, the price of Shares, the terms and conditions of any transaction and prevailing market conditions, as well as liquidity and diversification objectives.

Consistent with each of his or its investment intent, each Reporting Persons may have discussed and intends to continue to discuss with Issuer’s management, directors and other shareholders, the Issuer’s financial performance, strategic direction, business prospects and management, as well as various means of maximizing shareholder value. To further the goals of improving the performance of the Issuer and enhancing the value of the investment, discussions with the Issuer may include an active acquisition program of other companies to be undertaken by the Issuer.

On October 25, 2009, Messrs. LoConti, Clark and Skoda entered into a letter agreement with the Issuer with respect to their desire to enter into the transaction described in Item 5(c) below pursuant to which they, as a group, would become the “owners” (as that term is defined in Section 203 of the Delaware General Corporation Law (the “DGCL”)) of more than 15% of the Issuer’s outstanding Shares. Pursuant to this letter agreement, the Issuer approved the transaction reported in Item 5(c) below solely for the purposes of Section 203(a)(1) of the DGCL, in order to provide that the restrictions on “business combinations” as defined in Section 203 of the DGCL shall not apply to the Issuer and the Reporting Persons as a result of the transaction described in Item 5(c) below.

On October 29, 2009, the Issuer announced the execution of a non-binding letter of intent with respect to a proposed acquisition of the operations of Live Earth LLC, an Ohio limited liability company (“Live Earth”). Messrs. LoConti, Clark, and Skoda (through his own trust) and the Trust are non-managing members of Live Earth. There can be no assurance that the acquisition of the operations of Live Earth by the Issuer will be completed.

Except as indicated herein, none of the Reporting Persons have any plan or proposal that relates to or would result in any matter required to be disclosed in response to paragraphs (a) through (j) of Item 4 of Schedule 13D. The Reporting Persons reserve the right to modify their plans and proposals described in this Item 4 and, as disclosed above, to acquire additional Shares or dispose of Shares from time to time depending on market conditions. Further, subject to applicable laws and regulations, the Reporting Persons may formulate plans and proposals that may result in the occurrence of an event set forth in paragraphs (a) through (j) of Item 4 of Schedule 13D.

CUSIP No. 92926K103

Page 8 of 10 Pages

Item 5. Interest in Securities of the Issuer.

(a) According to the most recently available filing with the Securities and Exchange Commission by the Issuer, there are 16,536,097 Shares outstanding.

Mr. LoConti beneficially owns 1,720,386 Shares, including the Option to purchase up to 400,000 Shares, which represents 10.40% of the Shares outstanding assuming exercise of his Option in full. Mr. Clark beneficially owns 648,827 Shares, including the Option to purchase up to 347,014 Shares held jointly with the Trust, which represents 3.92% of the Shares outstanding assuming exercise of his Option in full. Mrs. Skoda as trustee of the Trust beneficially owns 462,160 Shares, including the Option to purchase up to 347,014 Shares jointly held by the Trust and Mr. Clark, which represents 2.79% of the Shares outstanding assuming exercise of the Trust’s Option in full, and Mr. Skoda may be deemed the beneficial owner of the 462,160 Shares, including the Option, held by the Trust, which represents 2.79% of the Shares outstanding assuming exercise of the Trust’s Option in full. The number of Shares beneficially owned by Messrs. LoConti, Clark and Skoda does not include, and such Reporting Persons do not beneficially own and disclaim beneficial ownership of, any of the 211,491 Shares held as collateral for a loan by Something Better, LLC, of which such Reporting Persons own membership interests representing substantially all of the equity. The Reporting Persons together beneficially own 2,484,359 Shares, which represents 15.02% of the Shares outstanding assuming exercise of the Option of 747,014 Shares in full.

(b) Mr. LoConti has sole power to vote, or to direct the voting of, and sole power to dispose, or to direct the disposition of, the Shares and the Option owned by him. Mr. Clark has sole power to vote, or to direct the voting of, and sole power to dispose, or to direct the disposition of, the 301,813 Shares owned by him, and shared power to vote, or to direct the voting of, and shared power to dispose, or to direct the disposition of the Option to purchase up to 347,014 Shares, which is jointly held with the Trust. Mrs. Skoda, as the trustee of the Trust, may be deemed to have shared power to vote, or direct the voting of, and shared power to dispose, or to direct the disposition of, the 115,146 Shares owned by the Trust and shared power to vote, or direct the voting of, and shared power to dispose, or to direct the disposition of, the Option to purchase up to 347,014 Shares, which is jointly held with Mr. Clark. Mr. Skoda may be deemed to have shared power to vote, or to direct the voting of, and shared power to dispose, or to direct the disposition of, the Shares and the Option held by the Trust. However, the Reporting Persons do not have the power to vote, or to direct the voting of, or the power to dispose, or to direct the disposition of, any of the Shares underlying the Option unless and until the Option is exercised in whole or in part.

(c) Effective October 28, 2009, Mr. LoConti, Mr. Clark and the Trust entered into a privately-negotiated transaction with a third party group pursuant to which (1) Mr. LoConti and the Trust purchased 681,002 Shares and 56,622 Shares, respectively, at a price of $4.00 per share, and (2) Mr. LoConti, Mr. Clark and the Trust entered into an option agreement pursuant to which they each have the right in their sole discretion to purchase additional Shares prior to December 25, 2009 at an exercise price of $4.25 per share (the “Option”). Mr. LoConti has the Option to purchase up to 400,000 Shares (in whole or in part). Mr. Clark and the Trust have the Option to purchase up to 347,014 Shares (in whole or in part) and in such amounts between each other as they so agree; provided that the total number of Shares that can be exercised between the two of them cannot exceed 347,014 Shares.

(d) Not applicable.

CUSIP No. 92926K103

Page 9 of 10 Pages

(e) Not applicable.

Item 6. Contracts, Arrangements, Understandings or Relationships with Respect to Securities of the Issuer.

As disclosed in Item 5(c), effective October 28, 2009 in a privately-negotiated transaction, Mr. LoConti, Mr. Clark and the Trust acquired the Option from a third party group. Mr. LoConti has the Option to purchase up to 400,000 Shares (in whole or in part). Mr. Clark and the Trust have the Option to purchase up to 347,014 Shares (in whole or in part) and in such amounts between each other as they so agree; provided that the total number of Shares that can be exercised between the two of them cannot exceed 347,014 Shares. In addition, as part of the option agreement, Ballard O. Castleman, a member of the Issuer’s board of directors, agreed that if the entities issuing the Option no longer own any of the Shares that they owned as of the date of the option agreement he would resign from the Issuer’s board effective on such date.

Item 7. Materials to be Filed as Exhibits.

7.1

Option Agreement by and among Joseph E. LoConti, Daniel J. Clark and Patricia A. Skoda as Trustee of the Patricia A. Skoda Revocable Trust dated June 5, 2005 and William P. & Heather H. Esping Children’s Trust, JBJ Lending Company, JEK Sep/Property, LP and Eminence Interests, LP

7.2

Joint Filing Agreement

CUSIP No. 92926K103

Page 10 of 10 Pages

SIGNATURE

After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct.

Date: October 30, 2009

	/s/ Joseph E. LoConti
	Joseph E. LoConti

	/s/ Daniel J. Clark
	Daniel J. Clark

	/s/ Gregory J. Skoda
	Gregory J. Skoda

	/s/ Patricia A. Skoda
	Patricia A. Skoda as Trustee of the
	Patricia A. Skoda Revocable Trust
	dated June 5, 2005

EX-7.1 2 v164240_ex7-1.htm Unassociated Document

EXHIBIT 7.1

OPTION AGREEMENT

This Option Agreement (this “Agreement”) dated as of October 27, 2009 to be effective as of October 28, 2009, is by and among Joseph E. LoConti, Daniel J. Clark and Patricia A. Skoda, as Trustee of the Patricia A. Skoda Revocable Trust dated June 5, 2005 (each an “Optionee” and collectively, the “Optionees”) and William P. & Heather H. Esping 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, Ballard O. Castleman 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:

Joseph E. LoConti or Daniel J. Clark

6140 Parkland Boulevard, Suite 300

Mayfield Heights, Ohio 44124

Facsimile: 440-995-5111

Patricia A. Skoda Revocable Trust dated June 5, 2005

c/o Gregory Skoda

6685 Beta Drive

Mayfield Village, Ohio 44143

Fax - (440) 646-1615

If to Seller:

EFO Holdings, c/o Ballard Castleman

2828 Routh Street, Suite 500

Dallas, TX 75201

Facsimile: 214-849-9823

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.

OPTIONEES:

/s/ Joseph E. LoConti
Joseph E. LoConti

/s/ Daniel J. Clark
Daniel J. Clark

/s/ Patricia A. Skoda
Patricia A. Skoda, as Trustee of the Patricia A.
Skoda Revocable Trust dated June 5, 2005

SELLER:

William P. & Heather H. Esping Children’s Trust

By:	/s/ Ballard O. Castleman
	Ballard O. Castleman, Trustee

JEK Sep/Property, LP
By:	JEK Sep/Property Management, LLC, Its General Partner

By:	/s/ Jennifer E. Kirtland
	Jennifer E. Kirtland, Manager

Eminence Interests, LP
By:	Eminence Genpar, Inc., Its General Partner

By:	/s/ Ballard O. Castleman
	Ballard O. Castleman, President

JBJ Lending Company

By:	/s/ Ballard O. Castleman
	Ballard O. Castleman, President

/s/ Ballard O. Castleman
	Ballard O. Castleman

EXHIBIT A

Name	Optioned Securities

Joseph E. LoConti		400,000
Daniel J. Clark		347,014	*
Patricia A. Skoda Revocable Trust dated June 5, 2005		347,014	*

*Each of Daniel J. Clark and Patricia A. 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.

EX-7.2 3 v164240_ex7-2.htm

EXHIBIT 7.2

AGREEMENT OF JOINT FILING

Pursuant to Rule 13d-1(k) promulgated under the Securities Exchange Act of 1934, as amended, the undersigned persons hereby agree to file with the Securities and Exchange Commission, the Statement on Schedule 13D (the “Statement”) to which this Agreement is attached as an exhibit, and agree that such Statement, as so filed, is filed on behalf of each of them.

This Agreement may be executed in counterparts, each of which when so executed shall be deemed to be an original, and all of which together shall be deemed to constitute one and the same instrument.

IN WITNESS WHEREOF, the undersigned have executed this Agreement.

Date: October 30, 2009

	/s/ Joseph E. LoConti
	Joseph E. LoConti

	/s/ Daniel J. Clark
	Daniel J. Clark

	/s/ Gregory J. Skoda
	Gregory J. Skoda

	/s/ Patricia A. Skoda
	Patricia A. Skoda as Trustee of the
	Patricia A. Skoda Revocable Trust
	dated June 5, 2005