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The agreement provided that trade and transfer of
6,250 shares of Air Florida stock was conditioned on obtaining
any and all necessary approvals, particularly including counsel
far Air Florida and the Plaintiff agreeing to abide by all
legend restrictions. This agreement further provided that both
parties agreed to sign all necessary documents to effectuate the
agreement and if for any reason not the fault of either party the
swap cannot be made, the stock of both parties shall be restored
to either party and each shall retake their respective positions.
Defendant did seek the approval of the attorney for Air Florida
by letter of September 13, 1979. (D-12) Rowever, Defendant did
not ever execute an assignment of the stock to Plaintiff and De-
fendant never delivered the stock in Air Florida to the transfer
agent for transfer to Plaintiff. The attorney for Air Florida
testified that it was not necessary to get approval first from
Air Florida counsel on legend stock, and that the usual procedure
was to go ahead and tender the shares to the transfer agent and
then get the approval of the attorney. Defendant never made any
genuine effort to have his Air Florida stock transferred to
Plaintiff and Defendant clearly breached the agreement by failing
to do so.
Plaintiff made every effort to timely complete the
terms of the agreement and on September 14, 1979, the attorney
for Plaintiff tendered Plaintiff's stock in Golden South to
Defendant. (P-10) Furthermore, on October 29, 1979, Plaintiff's
attorney again urged Defendant to transfer his shares in Air
Florida to Defendant and sent Defendant the necessary forms to
accomplish the transfer. (P-13) By letter of November 26, 1979
to Defendant, Plaintiff's attorney revoked Plaintiff's proxy to
Defendant. (P-11) Plaintiff then started to again attend meetings
of Air Florida. Plaintiff only attended the meetings of Air
Florida after Defendant failed to transfer the Air Florida stock
and when it was evident Defendant did not intend to abide by the
agreement. Plaintiff substantially performed the agreement and
Defendant failed to abide by the agreement by not timely attempt-
ing to transfer and tender his shares of Air Florida stock.
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~i" 344 ~r72B6