ASSIGNMENT OF SHARES
This Assignment of Shares (“Assignment”) dated as of February 28, 2011 is between P & C Holdings, L.L.C., a Florida limited liability company (“Assignor”), Nicholas Cascione, an individual and resident of the State of Florida and the sole member of the Assignor (the “Member”), and Swisher Hygiene Inc., a Delaware corporation (“Assignee”).
WHEREAS , Assignee, SWSH Merger Sub, Inc., a Florida corporation and a wholly-owned subsidiary of Assignee (“Sub”), Choice Environmental Services, Inc., a Florida corporation (the “Company”), and certain shareholders of the Company, are parties to that certain Agreement and Plan of Merger dated as of February 13, 2011, as amended (the “Merger Agreement”), pursuant to which the Sub has agreed to merge with and into the Company, where the Company shall be the surviving entity in the Merger and become a wholly owned subsidiary of the Assignee. All capitalized terms used in this Assignment, but not otherwise defined herein, have the meaning given such terms in the Merger Agreement; and
WHEREAS , pursuant to the Merger Agreement, the Assignee has agreed to pay to the Security Holders the Merger Consideration in consideration for all of the issued and outstanding securities of the Company; and
WHEREAS , the Assignor owns 377,000 shares of the Company Common Stock, and has agreed to sell, assign, transfer, convey, set over and deliver all of such shares and assign all of the Assignor’s rights as a shareholder of the Company and the Assignor’s rights and interests under the Merger Agreement to the Assignee, and Assignee has agreed to acquire such shares and to be the assignee of all such rights and interests thereto and under the Merger Agreement, in accordance with and subject to the terms of this Assignment.
NOW, THEREFORE , in consideration of the foregoing recitals, which are true and correct and are incorporated herein by this reference, the terms and conditions contained herein, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged the parties agree as follows:
1. Assignment of Company Shares . Assignor hereby irrevocably sells, assigns, transfers, conveys, sets over and delivers to Assignee all of Assignor’s right, title and interest in and to 377,000 shares of the Company Common Stock, evidenced by stock certificate number 106 (the “Certificate”), which constitutes 9.98% of the Company’s Capital Stock (the “Assigned Shares”), free and clear of all Liens. As the assignee of the Assigned Shares, the Assignee shall succeed to all of the Assignor’s right, title and interest as a Security Holder under the terms of the Merger Agreement, and shall be entitled to the Merger Consideration that the holder of the Assigned Shares shall receive thereunder.
2. Delivery of Certificate; Stock Power . Assignor herewith delivers the original Certificate to Assignee for transfer to Assignee and hereby irrevocably appoints any officer or authorized agent of the Company as attorney to transfer the Assigned Shares on the books of the Company with full power of substitution in the premises.
3. Consideration . In consideration of Assignor’s assignment and delivery of all of the Assigned Shares to the Assignee, Assignee shall pay to the Assignor $5,700,000.00 (the “Consideration”), by wire transfer of immediately available funds to an account designated by Assignor. Assignor acknowledges receipt of the Consideration. Assignor shall be responsible for paying any income taxes due on the Consideration.
4. Acceptance . Assignee hereby accepts such assignment to it of the Assigned Shares subject to the terms, conditions, covenants, representations, warranties, indemnities and agreements set forth herein, and hereby acquires the Assigned Shares free and clear of all Liens.
5. Representations and Warranties . Assignor and Member, jointly and severally, make the following representations and warranties to the Assignee intending that the Assignee rely upon each of such representations and warranties to induce the Assignee to enter into and to complete the transactions contemplated by this Assignment, as follows:
5.1.1 The Assignor holds of record 377,000 shares of the Company Common Stock which constitutes all of the shares of the Company Capital Stock that either the Assignor or Member own in the Company, and such shares are fully paid and non-assessable. The Assignor owns the Assigned Shares free and clear of any restrictions on transfer, Liens, encumbrances, security interests, options, warrants, purchase rights, contracts, commitments and/or other rights whatsoever. Neither the Assignor nor the Member is a party to any option, warrant, purchase right or other contract or commitment whatsoever that could require the Assignor to sell, transfer or otherwise dispose of any capital stock or other securities of the Company including the Assigned Shares (other than this Assignment) or that could require the Member to sell, transfer or otherwise dispose of any interest in the Assignor. Neither the Assignor nor the Member is a party to any voting trust, proxy, voting rights agreement or other agreement or understanding with respect to the voting of any capital stock of the Company. Neither the Assignor nor the Member owns any interest in or securities of any Subsidiary.
5.1.2 The Assignor is a limited liability company duly organized, validly existing and in good standing under the laws of the State of Florida. The Assi