Jacob v. Bernatek

764 So. 2d 874, 2000 Fla. App. LEXIS 10119, 2000 WL 1140496
CourtDistrict Court of Appeal of Florida
DecidedAugust 9, 2000
DocketNo. 4D99-2358
StatusPublished
Cited by1 cases

This text of 764 So. 2d 874 (Jacob v. Bernatek) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Jacob v. Bernatek, 764 So. 2d 874, 2000 Fla. App. LEXIS 10119, 2000 WL 1140496 (Fla. Ct. App. 2000).

Opinion

WARNER, C.J.

The appellant, Christian Jacob, brought a shareholder derivative suit against appel-lees, James Barnatek, Henry Starr, and Accessories Worldwide, Inc., for an accounting and for statutory violations. In response, the appellees filed a motion for summary judgment contending that appellant was not a shareholder because his stock had been canceled for non-payment of the issuance price. The trial court agreed and entered summary judgment. We reverse, because there are material issues of fact regarding the consideration for the stock and its manner of cancellation.

Jacob, who had been involved in the business of selling plastic truck bedliners for several years, was invited by Bernatek to participate in Dytek Plastics, Inc., a company that manufactured plastic truck bedliners. Jacob accepted the offer and became a shareholder of Dytek, paying approximately $100,000 into the company from February 1995 to July 1996. In May of' 1996, AutoNation USA approached Dy-tek to discuss the possibility of allowing Dytek to become its exclusive supplier of plastic truck bedliners. As a result, Starr was brought into the business negotiations, and Jacob, Bernatek, and Starr began assembling facilities and contacting suppliers in anticipation of the deal with AutoNation.

The three individuals contemplated the formation of a separate corporation to handle the AutoNation USA account. As a result, Accessories Worldwide, Inc. (“AWI”) was formed in July 1996. Jacob was made executive vice-president of international sales of AWI. AWI conducted business from Dytek’s facilities with the use' of Dytek’s equipment. According to Jacob’s affidavit, Bernatek told Jacob that the money Jacob had paid into Dytek, AWI’s use of Dytek’s assets, and Jacob’s other services rendered in- acquiring the AutoNation USA account were sufficient consideration for Jacob’s receipt of 25% ownership in AWI.

When Jacob saw the minutes of the first meeting of the incorporators, it stated “[o]n motion duly made, seconded and unanimously carried, it was RESOLVED that 2500 shares of the capital stock of the corporation be sold to Christian Jacob for $10,000.00 and that the secretary be directed to issue this stock.” Jacob questioned Bernatek about this amount, and Bernatek assured him that this figure was “simply an approximation of the value of the shares being received by Jacob.” Jacob accepted this explanation, and the stock was issued to him on July 26, 1996, with no payment being made. On August 6, 1996, Jacob deposited $2,000 into AWI’s account for AWI’s business purposes, and he incurred an additional $4,000 in personal expenses in furtherance of AWI’s business. Unfortunately, relations between the three shareholders quickly soured and Jacob left the corporation, prompting this suit about a year later.

[876]*876According to Bernatek’s affidavit, Ber-natek and Starr were the only two shareholders of AWI. Jacob agreed to pay $10,000 in exchange for 25% ownership interest in the company, but that amount was never received. Bernatek states that he “inadvertently allowed Jacob to take the stock certificate without payment.” On December 19, 1996, Bernatek and Starr met and canceled Jacob’s stock certificate as null and void based on Jacob’s failure to pay the $10,000.

The trial court granted summary judgment on the ground that Jacob lacked standing to bring a derivative suit since he was not a shareholder. The court determined that AWI provided Jacob with an opportunity to purchase 2,500 shares in consideration for $10,000, which Jacob did not pay. The stock certificate was “prematurely issued” without receipt of the $10,000 called for in the minutes, and therefore the corporation canceled the stock certificate “as authorized by law.” The court cited to sections 607.0620 and 607.0621, Florida Statutes (1997), as supporting authority.

Jacob argues on appeal that the trial court erred in granting summary judgment because: (1) AWI was not entitled to rescind the stock certificate issued to him based on the statutes relied on by the court; and (2) genuine issues of material fact remain to be litigated with regard to the nature of the agreement between the parties regarding the issuance of the stock certificate. We agree on both points.

In granting summary judgment, the trial court relied on both sections 607.0620 and 607.0621 as authorizing the cancellation of the stock certificate. Section 607.0620 regulates subscriptions for shares in a corporation. However, that section does not apply because no subscription agreement exists, as appellee agrees. Section 607.0620(2) provides that “[a] subscription for shares ... is not enforceable unless in writing and signed by the subscriber.” (Emphasis added). Therefore, because no subscription agreement signed by the subscriber existed, the trial court improperly relied on section 607.0620(2) as controlling authority.

Reliance on section 607.0621 was also misplaced. That statute provides for the issuance of shares of stock by the corporation:

(1) The powers granted in this section to the board of directors may be reserved to the shareholders by the articles of incorporation.
(2) The board of directors may authorize shares to be issued for consideration consisting of any tangible or intangible property or benefit to the corporation, including cash, promissory notes, services performed, promises to perform services evidenced by a written contract, or other securities of the corporation.
(3) Before the corporation issues shares, the board of directors must determine that the consideration received or to be received for shares to be issued is adequate. That determination by the board of directors is conclusive insofar as the adequacy of consideration for the issuance of shares relates to whether the shares are validly issued, fully paid, and nonassessable. When it cannot be determined that outstanding shares are fully paid and nonassessable, there shall be a conclusive presumption that such shares are fully paid and nonassessable if the board of directors makes a good faith determination that there is no substantial evidence that the full consideration for such shares has not been paid.
(4) When the corporation receives the consideration for which the board of directors authorized the issuance of shares, the shares issued therefor are fully paid and nonassessable. Consideration in the form of a promise to pay money or a promise to perform services is received by the corporation at the time of the making of the promise, unless the agreement specifically provides otherwise.
(5) The corporation may place in escrow shares issued for a contract for future services or benefits or a promis[877]*877sory note, or make other arrangements to restrict the transfer of the shares, and may credit distributions in respect of the shares against their purchase price, until the services are performed, the note is paid, or the benefits received. If the services are not performed, the shares escrowed or restricted and the distributions credited may be canceled in whole or part.

§ 607.0621, Fla. Stat. (1997).

While section 607.0621(3) requires the board to determine that the consideration received or to be received is adequate before issuance of the shares, this section does not include remedies when the consideration is determined not to be adequate after the shares are already issued. Section 607.0622(1) addresses that issue directly:

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Bluebook (online)
764 So. 2d 874, 2000 Fla. App. LEXIS 10119, 2000 WL 1140496, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jacob-v-bernatek-fladistctapp-2000.