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Exhibit 10.8
RIGHT OF FIRST REFUSAL AGREEMENT
THIS RIGHT OF FIRST REFUSAL AGREEMENT ("Agreement") made this _____ day of
__________, 2000 by and between STAR SERVICES GROUP, INC., a Florida
corporation, or its assigns ("Star Services" or "Buyer") and NAMCO METALS
MANAGEMENT, INC., a Florida corporation ("NAMCO" or "Seller").
W I T N E S S E T H
WHEREAS, NAMCO Metals Management, Inc. ("NAMCO") is engaged in the
metal recycling business in and around the Miami-Dade County, Florida area and
operates a metals shredder located at 6990 N.W. 97th Avenue, Miami, Florida
("Business"); and
WHEREAS, Star Services desires a right of first refusal to purchase
NAMCO and its Business and NAMCO desires to provide Star Services a right of
first refusal to purchase upon the terms and conditions hereinafter set forth.
NOW THEREFORE, in consideration of the premises and the mutual
representations, warranties and covenants set forth herein, the parties
intending to be legally bound, agree as follows:
SECTION 1. RIGHT OF FIRST REFUSAL. Subject to the negotiation of a
mutually acceptable stock purchase agreement, Star Services shall, for a period
of forty eight (48) months from the date of execution of this Agreement, have a
right of first refusal to purchase all of the common stock and assets of NAMCO.
Should NAMCO receive a bona fide and good faith offer from a third party to
purchase substantially all of its assets and/or common stock ("Offer") it shall
communicate, in writing, the purchase offer to Star Services which shall have
fifteen (15) days from its receipt of the Offer to exercise its right of first
refusal to purchase NAMCO's assets and/or stock upon the same terms and
conditions as the Offer. The terms and conditions of the Offer must not be
designed so as to defeat the intent of the right of first refusal. In the event
that Star Services does not notify NAMCO, in writing, of its intent to exercise
said right of first refusal, then NAMCO may proceed to sell its assets and/or
stock to the third party at the price and upon the terms and conditions of the
Offer.
SECTION 2. CONSIDERATION FOR RIGHT OF FIRST REFUSAL. The consideration
for the NAMCO right of first refusal shall be as follows:
2.1 STOCK CONSIDERATION. Star Services shall, upon the closing of its
other related asset purchase transactions with Peerless Dade, Inc., Peerless Big
Apple, Inc. and Peerless Miami Avenue, Inc. ("Related Transactions"), transfer
Five Thousand (5,000) shares of fully paid, registered and nonassessable common
shares of Star Services Group, Inc. stock ("Stock Consideration") to the
individual shareholders of NAMCO in accordance with their ownership interest as
designated by the President of NAMCO at the closing of the Related Transactions.
The Stock Consideration shall be delivered
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within fifteen (15) business days of the closing of the Related Transactions to
Derek Parrish of Blount, Parrish & Company of Montgomery, Alabama ("Parrish") as
authorized agent for the NAMCO shareholders for the receipt of the Stock
Consideration from the Buyer's transfer agent. The shares of stock will be
freely tradeable as of January 2, 2001. It is understood and agreed by the
parties hereto that the sale or transfer of the Stock Consideration by the
individual shareholders of NAMCO will be restricted only as set forth above (the
"Restricted Stock"). The share certificates received for the Restricted Stock
shall bear a restrictive legend making said shares subject to the terms and
conditions of this Section.
SECTION 3. DEFAULT BY STAR SERVICES. If Star Services fails to perform
any of the terms, covenants, conditions or obligations of this Agreement or in
the event of any breach or default by Star Services under this Agreement, or any
other documents executed or delivered in connection with the transactions
contemplated by this Agreement, NAMCO shall have all rights and remedies that
may be available to NAMCO at law or in equity. No waiver by NAMCO of any such
breach or default, whether intentional or not, shall be deemed to extend to any
prior or subsequent breach or affect in any way any rights arising by virtue of
any prior or subsequent breach or default. Star Services shall not be deemed in
breach or default under this Agreement until written notice of the breach or
default has been given to Star Services and Star Services has failed to remedy
the breach or default within ten (10) days of the receipt of said notice from
NAMCO or its designated representative or counsel.
SECTION 4. GENERAL.
(a) This Agreement embodies the entire agreement of the parties in
relation to the subject matter hereof, and all prior agreements have been merged
into this Agreement. There are no understandings or agreements, verbal or
otherwise, in relation thereto, existing or that are enforceable between the
parties except as hereinabove expressly set forth. No change or modification of
this Agreement shall be valid unless the same shall be in writing, signed by
both of the parties hereto, and incorporated by reference herein;
(b) Nothing in this Agreement, whether expressed or implied, is
intended to confer any rights or remedies under or by reason of this Agreement
on any persons other than the parties to it and their respective heirs,
executors, administrators, successors and assigns, nor is anything in this
Agreement intended to relieve or discharge the obligation or liability of any
third persons to any party to this Agreement, nor shall any provision give any
third persons any right of subrogation over, or action against any party to this
Agreement.
(c) The rights and remedies to the parties to this Agreement in the
event of default are cumulative, and the exercise of any right or remedy shall
be without prejudice to the enforcement of any other right authorized by law, in
equity or this Agreement. The pursuit of any remedy provided in this Agreement
shall not constitute a forfeiture or waiver of any amount due for a defaulting
party or the right to maintain an action for any damages accruing for breach.
Forbearance to enforce one or more of the remedies provided by this Agreement,
on an event of default, shall not be deemed or construed to constitute a waiver
of the right to any remedy for that default.
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(d) The subject headings of the Sections of this Agreement are included
for purposes of convenience only, and shall not affect the construction or
interpretation of any of its provisions.
(e) Each party to this Agreement agrees to pay its respective attorney,
accounting or other fees, plus all costs arising out of the negotiation and
preparation of this Agreement.
(f) The validity and interpretation of this Agreement and of each and
every clause, term and part hereof shall be governed by and construed in
accordance with the laws of the State of Florida, without giving effect to
conflict of laws.
(g) The parties represent to each other that no broker or finder has
been employed by any of them in connection with this transaction. Each party
agrees to indemnify the other against all loss, cost, damage or expense arising
out of claims for fees or commission of brokers or finders employed or alleged
to have been employed by such party.
(h) All notices, requests, demands or other communications required or
permitted under this Agreement shall be sent by overnight mail, next day
delivery and fax, to Seller or Owner at their respective addresses appearing on
the signature page hereof and to Buyer at the addresses set forth below, and
notice shall be deemed given as of the date the notice is posted:
Seller: Kevin R. Kohn
President
NAMCO Metals Management, Inc.
9471 Baymeadows Road, Suite 106
Jacksonville, Florida 32256
FAX: (904) 739-0306
Buyer: Patrick F. Marzano
President
Star Services Group, Inc.
2075 North Powerline Road
Pompano Beach, FL 33069
FAX: (954) 970-0557
with a copy to: Samuel G. Weiss, Esq.
c/o Weiss & Federici LLP
30 Main Street
Port Washington, NY 11050
FAX: (516) 944-7630
(i) If any provision hereof is held or finally determined to be invalid
or unenforceable to any extent for any reason, to the extent that such provision
is valid and enforceable, the arbiters or court of competent jurisdiction, as
the case may be, shall construe and interpret said provision to provide for
maximum validity and enforceability. If any provision of this Agreement is
invalid, illegal or unenforceable, the balance of this Agreement shall remain in
effect.
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(j) In connection with any action or dispute or dispute arising under
this Agreement the prevailing party shall be entitled to an award of its
expenses including reasonable attorney fees and disbursements incurred or paid
before and at trial of any appellate proceedings.
(k) This Agreement shall not be assigned by either party without the
prior written consent of the other party. Notwithstanding the foregoing, it is
agreed that Buyer may assign this Agreement to a subsidiary. However, no such
assignment shall release Buyer from its obligations hereunder without the
specific release thereof by Seller.
(l) This Agreement may be executed in any number of counterparts, each
of which shall be deemed an original.
SECTION 5. BENEFIT AND DURATION. This Agreement shall be binding upon
and shall inure to the benefit of the parties hereto and their respective heirs,
administrators, executors, successors and assigns. However, any assignment by
Seller must be agreed to in writing by Buyer. This Agreement shall continue in
effect until all the obligations, duties and warranties as specified herein,
shall be fully performed and satisfied.
IN WITNESS WHEREOF, the parties hereto have set their hands on the day and year
first above written.
Attest: BUYER:
STAR SERVICES GROUP, INC.
BY: BY:
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Corporate Secretary: Patrick F. Marzano
Its President
Attest: SELLER:
NAMCO METALS MANAGEMENT, INC.
BY: BY:
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Corporate Secretary: Kevin R. Kohn
Its President
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