Attached files
file | filename |
---|---|
8-K - FORM 8-K - Swisher Hygiene Inc. | g26379e8vk.htm |
EX-10.2 - EX-10.2 - Swisher Hygiene Inc. | g26379exv10w2.htm |
EX-99.1 - EX-99.1 - Swisher Hygiene Inc. | g26379exv99w1.htm |
EX-10.1 - EX-10.1 - Swisher Hygiene Inc. | g26379exv10w1.htm |
Exhibit 2.1
AMENDMENT
TO
AGREEMENT AND PLAN OF MERGER
TO
AGREEMENT AND PLAN OF MERGER
This Amendment to Agreement and Plan of Merger (the Amendment), is dated as of
February 28, 2011 and is by and among Swisher Hygiene Inc., a Delaware corporation
(Parent), SWSH Merger Sub, Inc., a Florida corporation and a wholly-owned subsidiary of
Parent (Sub), Choice Environmental Services, Inc., a Florida corporation (the
Company), Glen Miller (Miller), Neal Rodrigue (Rodrigue), The Hermine
Rodrigue Testamentary Trust for Hayden Rodrigue, The Hermine Rodrigue Testamentary Trust for Kera
Rodrigue, The Robert Rodrigue Testamentary Trust for Hayden Rodrigue, and the Robert Rodrigue
Testamentary Trust for Kera Rodrigue (Testamentary Trusts).
R E C I T A L S
WHEREAS, the Parent, Sub, Company, Miller, Rodrigue and the Testamentary Trusts have entered
into that certain Agreement and Plan of Merger dated as of February 13, 2011 (as amended, the
Merger Agreement); and
WHEREAS, the Merger Agreement contemplated that the Escrow Agent would be a party thereto and
assume various obligations thereunder; and
WHEREAS, the Escrow Agent has advised that it is contrary to its policies to be a party, as
escrow agent, to a merger similar to the Merger, or to perform any obligations other than
ministerial obligations; and
WHEREAS, the parties to the Merger Agreement have agreed to amend the Merger Agreement to
remove the Escrow Agent as a party thereto.
NOW, THEREFORE, in consideration of the foregoing Recitals which are incorporated herein and
made a part hereof, and for other good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, the parties agree to amend the Merger Agreement as follows:
1. Definitions. Capitalized terms used herein and not defined herein shall have the
meaning ascribed to such term as set forth in the Merger Agreement and all references to Sections
or Articles, shall mean the Sections or Articles of the Merger Agreement unless reference is made
to another document. For purposes hereof, all references to the Merger Agreement, shall mean the
Merger Agreement as amended by this Amendment.
2. Amendments. The Merger Agreement shall be amended as follows:
The parties to the Merger Agreement agree to eliminate the Escrow Agent as a party
to the Merger Agreement without in any way affecting any of the parties obligations
hereunder. The parties also agree that the obligations of the Escrow Agent shall be
set forth in a separate escrow agreement, which shall as nearly as
possible reflect the obligations of the Escrow Agent as contained in Article VIII of
the Merger Agreement; provided that the Escrow Agents obligations under the escrow
agreement shall be only ministerial in nature. Notwithstanding the foregoing, the
parties acknowledge and agree that the terms of Article VIII shall remain in full
force and effect without amendment or modification and that the parties shall remain
subject to all of the terms of Article VIII including but not limited to Section 8.4
as if the Escrow Agent remained a party thereto, and to the extent of any
inconsistency between the obligations of the parties (other than the Escrow Agent)
under the provisions of the Merger Agreement and the obligations of the parties
under the terms of the escrow agreement with the Escrow Agent, the provisions of the
Merger Agreement shall prevail. The obligations of the Escrow Agent shall only be
reflected in the terms of the escrow agreement.
3. Full Force and Effect. Except as specifically amended, modified or supplemented by
the Amendment, the Merger Agreement is hereby confirmed and ratified in all respects and shall
remain in full force and effect.
4. Counterparts. This Amendment may be executed in one or more counterparts, all of
which shall be considered one and the same agreement and shall become effective when one or more
counterparts have been signed by each of the parties and delivered to the other party, it being
understood that all parties need not sign the same counterpart. A signed copy of this Amendment
delivered by facsimile, email or other means of electronic transmission shall be deemed to have the
same legal effect as delivery of an original signed copy of this Amendment.
5. Governing Law. This Amendment shall be governed by and construed in accordance
with the laws of the State of Delaware, regardless of the laws that might otherwise govern under
applicable principles of conflicts of laws thereof. Each of the parties hereto irrevocably
consents to the exclusive jurisdiction and venue of any court within Broward County, State of
Florida, in connection with any matter based upon or arising out of this Amendment or the matters
contemplated herein, agrees that process may be served upon them in any manner authorized by the
laws of the State of Delaware for such persons and waives and covenants not to assert or plead any
objection which they might otherwise have to such jurisdiction, venue and such process.
6. Waiver of Jury Trial. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES ALL
RIGHT TO TRIAL BY JURY AND ANY ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT,
OR OTHERWISE) ARISING OUT OF OR RELATING TO THIS AMENDMENT OR THE ACTIONS OF ANY PARTY HERETO IN
NEGOTIATION, ADMINISTRATION, PERFORMANCE OR ENFORCEMENT HEREOF.
[SIGNATURES APPEAR ON FOLLOWING PAGES]
2
IN WITNESS WHEREOF, Parent, Sub, the Company, the Principal Shareholders and the Principal
Shareholder Affiliates have caused this Amendment to be signed, all as of the date first written
above.
SWISHER HYGIENE INC. |
||||
By: | /s/ Thomas E. Aucamp | |||
Thomas E. Aucamp, Executive Vice President | ||||
CHOICE ENVIRONMENTAL SERVICES, INC. |
||||
By: | /s/ Glen Miller | |||
Name: | Glen Miller | |||
Title: | Chief Executive Officer | |||
SWSH MERGER SUB, INC. |
||||
By: | /s/ Thomas E. Aucamp | |||
Thomas E. Aucamp, Executive Vice President | ||||
[Signature Page to Amendment to Agreement and Plan of Merger]
/s/ Glen Miller | ||||
Glen Miller | ||||
/s/ Neal W. Rodrigue | ||||
Neal W. Rodrigue | ||||
The Hermine Rodrigue Testamentary Trust for Hayden Rodrigue |
||||
By: | /s/ Neal W. Rodrigue | |||
Name: | Neal W. Rodrigue | |||
Title: | Trustee | |||
The Hermine Rodrigue Testamentary Trust for Kera Rodrigue |
||||
By: | /s/ Neal W. Rodrigue | |||
Name: | Neal W. Rodrigue | |||
Title: | Trustee | |||
The Robert Rodrigue Testamentary Trust for Hayden Rodrigue |
||||
By: | /s/ Neal W. Rodrigue | |||
Name: | Neal W. Rodrigue | |||
Title: | Trustee | |||
The Robert Rodrigue Testamentary Trust for Kera Rodrigue |
||||
By: | /s/ Neal W. Rodrigue | |||
Name: | Neal W. Rodrigue | |||
Title: | Trustee | |||
[Signature Page to Amendment to Agreement and Plan of Merger]