Schedule 13D/A

Optioned Securities

Joseph E. LoConti

Daniel J. Clark

Patricia A. Skoda Revocable Trust dated June 5, 2005

-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, Mb+EuLJYkBralp8S0Lz5Yxd1X/hfaWLBXuaCte65YHnWPyJxoHgbAS7yVGeFPdy6 c0b/GnKYK9UfK39N6ch0Kg== 0000950123-09-061575.txt : 20091112 0000950123-09-061575.hdr.sgml : 20091111 20091112120632 ACCESSION NUMBER: 0000950123-09-061575 CONFORMED SUBMISSION TYPE: SC 13D/A PUBLIC DOCUMENT COUNT: 5 FILED AS OF DATE: 20091112 DATE AS OF CHANGE: 20091112 GROUP MEMBERS: WILLIAM P. ESPING GROUP MEMBERS: WPE HOLDINGS, INC. GROUP MEMBERS: WPE KIDS PARTNERS, L.P. FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: Esping William P. CENTRAL INDEX KEY: 0001295115 FILING VALUES: FORM TYPE: SC 13D/A MAIL ADDRESS: STREET 1: 2828 ROUTH STREET, SUITE 500 CITY: DALLAS STATE: TX ZIP: 75201 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/A SEC ACT: 1934 Act SEC FILE NUMBER: 005-79924 FILM NUMBER: 091175513 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 SC 13D/A 1 c92430sc13dza.htm SCHEDULE 13D/A Schedule 13D/A

UNITED STATES
SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

SCHEDULE 13D

Under the Securities Exchange Act of 1934
(Amendment No. 1 )*

WCA Waste Corporation

(Name of Issuer)

Common Stock, $0.01 Par Value

(Title of Class of Securities)

92926K103

(CUSIP Number)

Julie S. Krupala, 2828 Routh Street, Suite 500, Dallas, Texas 75201 (214) 849-9800

(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 that is the subject of this Schedule 13D, and is filing this schedule because of §§240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check the following box. o

Note: Schedules filed in paper format shall include a signed original and five copies of the schedule, including all exhibits. See Rule 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 (“Act”) 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

NAMES OF REPORTING PERSONS

William P. Esping

CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (SEE INSTRUCTIONS)

(a) o

(b) þ

SEC USE ONLY

SOURCE OF FUNDS (SEE INSTRUCTIONS)

CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e)

CITIZENSHIP OR PLACE OF ORGANIZATION

U.S.A

SOLE VOTING POWER

NUMBER OF

61,303

SHARED VOTING POWER

BENEFICIALLY

OWNED BY

468,105

EACH

SOLE DISPOSITIVE POWER

REPORTING

PERSON

61,303

WITH

SHARED DISPOSITIVE POWER

468,105

AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON

William P. Esping: 529,408

CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (SEE INSTRUCTIONS)

PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)

3.21%

TYPE OF REPORTING PERSON (SEE INSTRUCTIONS)

[IN]

Page 2


CUSIP No.		92926K103

NAMES OF REPORTING PERSONS

WPE Kids Partners, L.P.

CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (SEE INSTRUCTIONS)

(a) o

(b) þ

SEC USE ONLY

SOURCE OF FUNDS (SEE INSTRUCTIONS)

CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e)

CITIZENSHIP OR PLACE OF ORGANIZATION

Texas, U.S.A.

SOLE VOTING POWER

NUMBER OF

-0-

SHARED VOTING POWER

BENEFICIALLY

OWNED BY

-0-

EACH

SOLE DISPOSITIVE POWER

REPORTING

PERSON

-0-

WITH

SHARED DISPOSITIVE POWER

-0-

AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON

WPE Kids Partners, L.P.: -0-

CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (SEE INSTRUCTIONS)

PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)

0.00%

TYPE OF REPORTING PERSON (SEE INSTRUCTIONS)

[PN]

Page 3


CUSIP No.		92926K103

NAMES OF REPORTING PERSONS

WPE Holdings, Inc.

CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (SEE INSTRUCTIONS)

(a) o

(b) þ

SEC USE ONLY

SOURCE OF FUNDS (SEE INSTRUCTIONS)

CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e)

CITIZENSHIP OR PLACE OF ORGANIZATION

Texas, U.S.A.

SOLE VOTING POWER

NUMBER OF

-0-

SHARED VOTING POWER

BENEFICIALLY

OWNED BY

-0-

EACH

SOLE DISPOSITIVE POWER

REPORTING

PERSON

-0-

WITH

SHARED DISPOSITIVE POWER

-0-

AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON

WPE Holdings, Inc.: 0

CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (SEE INSTRUCTIONS)

PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)

0.00%

TYPE OF REPORTING PERSON (SEE INSTRUCTIONS)

[CO]

Page 4


CUSIP No.		92926K103

Item 1. Security and Issuer.

This Schedule 13D relates to the common stock, $0.01 par value (the “Common Stock”), of WCA Waste Corporation, a Delaware corporation (the “Company”). The principal executive offices of the Company are located at One Riverway, Suite 1400, Houston, Texas 77056.

Item 2. Identity and Background.

This Schedule 13D is being filed jointly by the following persons: (i) William P. Esping, (ii) WPE Kids Partners, L.P., and (iii) WPE Holdings, Inc. (collectively, the “Reporting Persons”). The principal office of each Reporting Person is 2828 Routh Street, Suite 500, Dallas, Texas 75201. The principal business of each Reporting Person is the management and ownership of various investments.

During the last five years, none of the Reporting Persons has been convicted in a criminal proceeding (excluding traffic violations or similar misdemeanors) or has been a party to a civil proceeding of a judicial or administrative body of competent jurisdiction and as a result of such proceeding was or is subject to a judgment, decree or final order enjoining future violations of, or prohibiting or mandating activities subject to, federal or state securities laws or finding any violation with respect to such laws.

Mr. Esping is a citizen of the United States of America. WPE Kids Partners, L.P. is a limited partnership formed in the State of Texas. WPE Holdings, Inc. is a corporation formed in the State of Texas, which is the general partner of WPE Kids Partners, L.P.

The filing of this Schedule 13D shall not be construed as an admission that any Reporting Person is, for the purposes of Section 13(d) or 13(g) of the Securities Exchange Act of 1934, or for any other purpose, the beneficial owner of any shares of Common Stock other than those shares of Common Stock over which the Reporting Person has sole voting and dispositive power, as reported herein. Further, each Reporting Person expressly disclaims the existence of a group. The Reporting Persons have no agreement or understanding among themselves with respect to the voting of the shares of Common Stock acquired by them or with respect to the acquisition of any shares of Common Stock.

Item 3. Source and Amount of Funds or Other Consideration.

Effective May 9, 2005, each of (i) WCA Partners, L.P., (ii) EFO Co-Investment Partners, (iii) EFO Holdings, L.P. and (iv) Kathryn Esping Agency, GP (each, a “Distributing Partnership” and collectively, the “Distributing Partnerships”) distributed all shares of Common Stock held by such Distributing Partnership to its partners, pro rata in accordance with its partners’ respective partnership interests in the such Distributing Partnership (collectively, the “Distributions”). As a result of the Distributions, the Reporting Persons acquired voting and investment control over certain shares of Common Stock distributed to the partners from the Distributing Partnerships, necessitating the filing of this Schedule 13D. No funds were used to acquire the Common Stock distributed to the partners.

Item 4. Purpose of Transaction.

The purpose of the transaction was to cause each partner in a Distributing Partnership, to acquire direct ownership of such partner’s pro-rata share of Common Stock owned by such Distributing Partnership immediately prior to the Distribution. Each Reporting Person acquired the Common Stock for investment purposes.

On October 28, 2009, JBJ Lending Company (“JBJ”) and Eminence Interests, LP (“Eminence”), together with two other related entities, entered into three separate option agreements by which they granted the Options (as defined below), as reported in Item 5(c). The shares of Common Stock owned by JBJ and Eminence are beneficially owned by Mr. Esping. If the Options are exercised in full, then JBJ and Eminence will no longer own any shares of Common Stock.

Page 5


CUSIP No.		92926K103

As of the date of this Schedule 13D, no Reporting Person has any plans or proposals with respect to the Company which relate to or would result in any of the events described in Item 4(b) through 4(j).

Item 5. Interest in Securities of the Issuer.

(a) and (b) See items (7) through (11) and (13) of the cover pages. The percentage of outstanding shares of the Common Stock listed on Item 13 of the cover pages with respect to the Reporting Persons is based upon there being 16,497,686 shares of Common Stock outstanding as reported in the Company’s most recent Form 10-Q filed with the SEC on October 30, 2009. William P. Esping holds sole ultimate voting and investment control over all shares of Common Stock owned by WPE Kids Partners, L.P. and WPE Holdings, Inc. William P. Esping is one of four co-trustees of the Esping Marital Deduction Trust No. 2 (the “Trust”), which is the sole owner of JBJ. The trustees share voting and investment control over the 468,105 shares of Common Stock controlled by the Trust, which are owned directly by JBJ. A consensus of three of the four trustees is required to take action with respect to the Trust, including the disposition of any shares owned by JBJ.

(c) Effective October 28, 2009, Mr. Esping and WPE Kids Partners, L.P. completed a series of related private sales of shares of Common Stock, pursuant to eight separate transactions in which (i) Mr. Esping sold an aggregate 42,154 shares of Common Stock and (ii) WPE Kids Partners sold an aggregate 1,296,468 shares of Common Stock to certain private party purchasers, at a price of $4.00 per share. The shares sold by WPE Kids Partners, L.P. were all of the shares owned by that partnership. In connection with the foregoing sales, JBJ and Eminence, together with two other related entities, entered into three separate option agreements by which all of them collectively granted to the noted optionees three separate options to purchase up to 1,120,014 shares of Common Stock, in whole or in part, for an exercise price of $4.25 per share (the “Options”). The Options may be exercised at any time on or before December 24, 2009, subject to their terms. The shares subject to the Options include 56,529 shares owned by Eminence, and 468,105 shares owned by JBJ, which reflect all of the shares of Common Stock owned by those entities. If the Options were exercised in full on the date of this filing, then Mr. Esping would beneficially own 4,774 shares of Common Stock, which are owned by entities controlled by him. The foregoing descriptions of the Options and the related option agreements do not purport to be complete and are qualified in their entirety by reference to such agreements, which are incorporated by reference as exhibits to this Schedule 13D.

(d) None, other than the Reporting Persons.

(e) The Reporting Persons ceased owning more than five percent of the outstanding shares of Common Stock on October 28, 2009.

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

Effective on October 28, 2009, the shares of Common Stock owned by Eminence and JBJ, all of which are beneficially owned by Mr. Esping, become subject to the Options.

Page 6


CUSIP No.		92926K103

Item 7. Material to be Filed as Exhibits.

99.1 Joint Filing Agreement

99.2 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

99.3 Option Agreement by and among Frank Antonacci and William P. & Heather H. Esping Children’s Trust, JBJ Lending Company, JEK Sep/Property, LP and Eminence Interests, LP

99.4 Option Agreement by and among Donald A. Sanders and William P. & Heather H. Esping Children’s Trust, JBJ Lending Company, JEK Sep/Property, LP and Eminence Interests, LP

Page 7


CUSIP No.		92926K103

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.


Dated: November 10, 2009
(Date)


/s/ William P. Esping
William P. Esping


WPE KIDS Partners, L.P.
By:	WPE Holdings, Inc.
Its:	General Partner


By:	/s/ Ballard O. Castleman
	Name:	Ballard O. Castleman
	Its:	President

WPE HOLDINGS, INC.
By:	/s/ Ballard O. Castleman
	Name:	Ballard O. Castleman
	Its:	President

Page 8

EX-99.1 2 c92430exv99w1.htm EXHIBIT 99.1 Exhibit 99.1

EXHIBIT 99.1

JOINT FILING AGREEMENT

In accordance with Rule 13d-1(k) under the Securities Exchange Act of 1934, the persons named below hereby agree to the joint filing on behalf of each of them of a statement on Schedule 13D (including any amendments thereto) with respect to the shares of Common Stock of Platinum Research Organization, Inc. beneficially owned by each of them and further agree that this Joint Filing Agreement be included as an exhibit to such joint filings. This Agreement may be executed in any number of counterparts, all of which taken together shall constitute one and the same instrument.

IN WITNESS WHEREOF, the undersigned are signing this Joint Filing Agreement on November 10, 2009.



/s/ William P. Esping
William P. Esping


WPE KIDS Partners, L.P.
By:	WPE Holdings, Inc.
Its:	General Partner


By:	/s/ Ballard O. Castleman
	Name:	Ballard O. Castleman
	Its:	President


WPE HOLDINGS, INC.
By:	/s/ Ballard O. Castleman
	Name:	Ballard O. Castleman
	Its:	President

EX-99.2 3 c92430exv99w2.htm EXHIBIT 99.2 Exhibit 99.2

Exhibit 99.2

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


*		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-99.3 4 c92430exv99w3.htm EXHIBIT 99.3 Exhibit 99.3

EXHIBIT 99.3

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 Frank Antonacci (“Optionee”) 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 has agreed to grant Optionee an option to purchase up to 120,000 of the Seller Shares (the “Optioned Securities”); and

WHEREAS, Optionee has agreed to accept the Option (as hereinafter defined) on the terms and conditions hereinafter set forth; and

WHEREAS, Optionee desires 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 Optionee (or such person or entity as shall be designated by Optionee) 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”).

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. Optionee may elect, in his 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, Optionee must deliver to Seller, on or prior to the last day of the Option Term, (i) written notice of his 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) if required, 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 the Optionee one or more certificates representing the total Optioned Securities exercised, in such denomination and registered in such name or names as Optionee shall have specified to the Seller. The Seller represents and warrants to Optionee that upon receipt of the Exercise Price the Seller will transfer to 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.

(d) The unexercised portion, if any, of the Option shall automatically terminate and become null and void on at 11:59 p.m. on December 24, 2009.

2. Representations and Warranties of Seller. Each Seller represents and warrants to Optionee on the date hereof as follows:

3. Representations and Warranties of Optionee. Optionee represents and warrants to Seller on the date hereof as follows:

3.1 Authorization, etc. 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 Optionee. This Agreement constitutes a legal, valid and binding agreement of Optionee, assuming the due execution of the Agreement by Seller, enforceable against 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 Optionee is a party, (b) violate any order, writ, injunction or decree of any court, administrative agency or governmental body applicable to Optionee or (c) conflict with or result in the breach of the terms, conditions or provision of any organizational documents of Optionee.

3.3 Purchase for Investment, etc. 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;

5. Rights Prior to Exercise of Option. The 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 Optionee shall be endorsed with only the following legend:

8. Indemnification.

8.1 Indemnification by Optionee. 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 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 Optionee or any of 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 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 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:

Frank Antonacci
c/o KR Leasing
15 Mullen Road
Enfield, CT 06082
Facsimile:

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. Opionee 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.

10.3 This Agreement may not be amended except by written agreement signed by the parties.

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.

10.8 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 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 Optionee in law or at equity, 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.


OPTIONEE
/s/ Frank Antonacci
Frank Antonacci

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

EX-99.4 5 c92430exv99w4.htm EXHIBIT 99.4 Exhibit 99.4

EXHIBIT 99.4

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 Donald A. Sanders (“Optionee”) 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 has agreed to grant Optionee an option to purchase up to 253,000 of the Seller Shares (the “Optioned Securities”); and

WHEREAS, Optionee has agreed to accept the Option (as hereinafter defined) on the terms and conditions hereinafter set forth; and

WHEREAS, Optionee desires 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.

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. Optionee may elect, in his 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.

(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 the Optionee one or more certificates representing the total Optioned Securities exercised, in such denomination and registered in such name or names as Optionee shall have specified to the Seller. The Seller represents and warrants to Optionee that upon receipt of the Exercise Price the Seller will transfer to 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.

(d) The unexercised portion, if any, of the Option shall automatically terminate and become null and void on at 11:59 p.m. on December 24, 2009.

2. Representations and Warranties of Seller. Each Seller represents and warrants to Optionee on the date hereof as follows:

3. Representations and Warranties of Optionee. Optionee represents and warrants to Seller on the date hereof as follows:

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 Optionee is a party, (b) violate any order, writ, injunction or decree of any court, administrative agency or governmental body applicable to Optionee or (c) conflict with or result in the breach of the terms, conditions or provision of any organizational documents of Optionee.

3.3 Purchase for Investment, etc. 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;

6. Legend. Upon exercise of the Option, the share certificate evidencing the Optioned Securities hereunder when delivered to Optionee shall be endorsed with only the following legend:

8. 8. Indemnification.

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 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:

Donald A. Sanders
c/o Sanders Morris Harris Inc
600 Travis, Suite 5800
Houston, Texas 77002
Facsimile: 713-250-4298

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. Opionee 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.

10.3 This Agreement may not be amended except by written agreement signed by the parties.

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.

10.8 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.

10.10 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.


	OPTIONEE

	/s/ Donald A. Sanders
	Donald A. Sanders


	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

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