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
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