Sunair Services Corporation
SCHEDULE 14C
(Rule 14a-101)
INFORMATION REQUIRED IN INFORMATION STATEMENT
SCHEDULE 14C INFORMATION
Information Statement Pursuant to Section 14(c)
of the Securities Exchange Act of 1934
Check the appropriate box:
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Preliminary information statement |
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Confidential, For Use of the Commission only (as permitted by Rule 14c-5(d)(2)) |
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Definitive information statement |
SUNAIR SERVICES CORPORATION
(Name of Registrant as Specified in Its Charter)
Payment of filing fee (Check the appropriate box):
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No fee required. |
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Fee computed on the table below per Exchange Act Rules 14c-5(g) and 0-11. |
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(1) Title of each class of securities to which transaction applies: |
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(2) Aggregate number of securities to which transaction applies:
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(3) Per unit price or other underlying value of transaction computed pursuant to Exchange Act Rule 0-11 (set forth the amount on which the filing fee is calculated and state how it was determined): |
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(4) Proposed maximum aggregate value of transaction:
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(5) Total fee paid:
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Fee paid previously with preliminary materials. |
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Check box if any part of the fee is offset as provided by Exchange Act Rule 0-11(a)(2) and identify the filing for which the offsetting fee was paid previously. Identify the previous filing by registration statement number, or the Form or Schedule and the date of its filing. |
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(1) Amount previously paid: |
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(2) Form, Schedule or Registration Statement No.:
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(3) Filing Party:
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(4) Date Filed:
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SUNAIR SERVICES CORPORATION
3005 S.W. THIRD AVENUE
FT. LAUDERDALE, FL 33315
TABLE OF CONTENTS
NOTICE OF ACTION BY A MAJORITY OF THE SHAREHOLDERS
To Our Shareholders:
We plan to sell a total of 2,857,146 shares of our common stock at a price of $5.25 per share
and warrants to purchase 1,000,000 shares of our common stock at an exercise price of $6.30
(subject to adjustment) in a private placement to be completed in two tranches. We completed the
first-tranche of the private placement on December 16, 2005, when we sold a total of 2,000,003
shares of our common stock and warrants to purchase a total of 700,000 shares of our common stock
to investors. In the second-tranche, which is expected to be completed on the twentieth
calendar day after this Notice of Action by a Majority of the Shareholders (Notice) and the
accompanying Information Statement is sent to our shareholders, we expect to sell an additional
857,143 shares of our common stock and warrants to purchase 300,000 shares of our common stock to
the investors. We expect to receive aggregate proceeds from the private placement, before expenses
to us, of approximately $15 million and net proceeds to us of approximately $13.8 million.
We are delivering this Notice and the accompanying Information Statement to inform our
shareholders that the holders of a majority of the outstanding shares of our common stock have
approved, by written consent, the issuance and sale of the shares of common stock and warrants to
purchase common stock in the second-tranche of the private placement. The shareholders have taken
this action solely for the purposes of satisfying the rules of the American Stock Exchange that
require an issuer of listed securities to obtain prior shareholder approval if it sells or issues
common stock equal to 20% or more of the common stock outstanding before the issuance for less than
the greater of book or market value of the common stock.
The action by written consent of a majority of the shareholders approving the
second-tranche of the private placement was taken in accordance with Section 607.0704 of the
Florida Business Corporation Act, which permits any action that may be taken at a meeting of the
shareholders to be taken by the written consent to the action by the holders of the number of
shares of voting stock required to approve the action at a meeting. All necessary corporate
approvals in connection with the matters referred to in this Notice and the accompanying
Information Statement have been obtained.
The Information Statement is being furnished to our shareholders pursuant to Section 14(c) of
the Securities and Exchange Act of 1934 (Exchange Act) and the rules thereunder solely for the
purpose of informing our shareholders of these corporate actions before they take effect. In
accordance with Rule 14c-2 under the Exchange Act, the shareholder written consent will not become
effective until at least twenty calendar days following the mailing of this Notice and the
accompanying Information Statement.
The action has been approved by our board of directors and the holders of more than a majority
of shares of our common stock outstanding.
WE ARE NOT ASKING YOU FOR A PROXY AND YOU
ARE REQUESTED NOT TO SEND US A PROXY
You have the right to receive this Notice and the accompanying Information Statement if you
were a shareholder of record of our company at the close of business on December 22, 2005.
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By order of the board of directors |
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/s/ SYNNOTT B. DURHAM
Synnott B. Durham
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Secretary and Chief Financial Officer |
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Fort Lauderdale, FL |
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, 2005 |
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WE ARE NOT ASKING YOU FOR A PROXY
AND YOU ARE REQUESTED NOT TO SEND US A PROXY
SUNAIR SERVICES CORPORATION
3005 S.W. THIRD AVENUE
FT. LAUDERDALE, FL 33315
INFORMATION STATEMENT
This Information Statement is being sent to advise our shareholders of an action being taken
without a meeting upon the written consent of the holders of a majority of the outstanding shares
of our common stock. The matter upon which action is to be taken is the issuance and sale, in the
second closing of our two-tranche private placement, to certain investors of 2,857,146 shares of
our common stock at a price of $5.25 per share and warrants to purchase 1,000,000 shares of our
common stock. The warrants have an exercise price of $6.30 (subject to adjustment), are
exercisable beginning six months after the date of issuance and have a term of five years.
The date on which the action is to be taken is expected to be twenty calendar days after we
send this Information Statement to our shareholders. You have the right to receive the enclosed
Notice and this accompanying Information Statement if you were a shareholder of record of our
company at the close of business on December 22, 2005. In accordance with Rule 14c-2 under the
Exchange Act, the shareholder written consent will not become effective until at least twenty
calendar days following the mailing of this Notice and the accompanying Information Statement.
The following shareholders, who together constitute the holders of a majority of our
outstanding shares of common stock (collectively, the Majority Shareholders), have executed a
written consent approving the issuance of shares of our common stock as described herein. The
shareholders constituting the Majority Shareholders are Coconut Palm Capital Investors II, Ltd. and
Michael D. Herman, who together hold 57.8% of our outstanding common stock. As of the date of this
Information Statement, there were 12,186,380 shares of our common stock outstanding, which includes
2,000,003 shares of our common stock issued and sold in the first-tranche of the private placement.
This Information Statement is being sent to our shareholders on or about December ___, 2005.
This Information Statement constitutes notice to our shareholders of corporate action taken by our
shareholders without a meeting as required by the Florida Business Corporation Act.
We will pay the costs of preparing and sending out the enclosed Notice and this Information
Statement.
The Florida Business Corporation Act does not provide for dissenters rights in connection
with the action being taken.
The date of this Information Statement is December ___, 2005.
ISSUANCE OF SECURITIES
Introduction
On December 16, 2005, we completed the first-tranche of a two-tranche sale of our securities
to investors in a private placement pursuant to purchase agreements, dated December 15, 2005, by
and among us and the investors of our common stock named therein (the Purchase Agreements).
Pursuant to the Purchase Agreements, we agreed to sell up to an aggregate of 2,857,146 shares of
our common stock at a price per share of $5.25 and warrants to purchase 1,000,000 shares of our
common stock (the Private Placement) at an exercise price of $6.30 (subject to adjustment) with
total gross proceeds (before fees and expenses) to us of approximately $15 million and net proceeds
to us of approximately $13.8 million.
The sale and issuance of our common stock has been structured to close in two tranches. The
first closing was completed on December 16, 2005, pursuant to which we issued and sold an aggregate
of 2,000,003 shares of our common stock and warrants to purchase 700,000 shares of our common
stock (the First Closing). In the second closing, which is expected to occur on the
twentieth calendar day after this Information Statement is sent to our shareholders, we expect
to sell an additional 857,143 shares of our common stock and warrants to purchase 300,000 shares of
our common stock (the Second Closing). In this Information Statement, we refer to the common
stock and warrants to be issued at the Second Closing as the Securities.
The investors have deposited an aggregate of $4.5 million, representing the consideration to
be paid for the Securities to be issued at the Second Closing, in an escrow fund, which will be
released to us at the Second Closing. We expect to receive gross proceeds (before fees and
expenses) of approximately $4.5 million and net proceeds to us of approximately $4.1 million at the
Second Closing.
In connection with the Private Placement, the Majority Shareholders, who hold in excess of 50%
of our issued and outstanding shares of common stock, have executed their written consent approving
the issuance and sale of the Securities at the Second Closing. The shareholder approval of the
issuance of the Securities at the Second Closing includes approval of additional shares that may
become issuable as a result of the anti-dilution provisions in the warrants.
THIS INFORMATION STATEMENT IS NEITHER AN OFFER TO SELL NOR A SOLICITATION OF AN OFFER TO BUY
ANY SECURITIES OF OUR COMPANY. THE SECURITIES REFERRED TO IN THIS INFORMATION STATEMENT HAVE NOT
BEEN REGISTERED FOR SALE BY US UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE SECURITIES ACT),
OR ANY STATE SECURITIES LAWS AND MAY NOT BE SO OFFERED OR SOLD ABSENT SUCH REGISTRATION UNDER THE
SECURITIES ACT AND IN ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS OR AN EXEMPTION FROM THE
REGISTRATION REQUIREMENTS THEREOF.
The investors in the Private Placement consist of a limited number of accredited investors,
and the sale of our common stock and warrants will be made in reliance on Regulation D promulgated
under the Securities Act, which offers exemptions from the registration requirements under the
Securities Act. Roth Capital Partners, LLC is serving as the placement agent for us in connection
with the Private Placement.
Reason for Shareholder Approval
We are subject to the rules of the American Stock Exchange (AMEX) because our common stock
is listed on the AMEX. These rules require us to obtain shareholder approval for any issuance or
sale of common stock, or securities convertible into or exercisable for common stock, that is (i)
equal to 20% or more of our outstanding common stock before such issuance or sale and (ii) at a
price per share below the greater of book or market value at the time of such issuance or sale.
Because the warrants will not be exercisable until six months after they are issued and the
exercise price of the warrants is equal to or greater than the market value on the date the
Purchase Agreements were entered into, the warrants do not need to be included in the calculation
of the 20%. The AMEX rules apply to the Second Closing because:
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the shares of common stock that we issued and sold at the First Closing
comprised approximately 19.6% of the shares of our common stock outstanding immediately
prior to the First Closing. The |
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shares of common stock we intend to issue and sell at
the Second Closing, together with the shares issued and sold in the First Closing, will
comprise approximately 28% of the shares of our common stock outstanding immediately
prior to the First Closing and approximately 21.9% of the outstanding shares
immediately after the Second Closing, and |
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the purchase price of the common stock we issued and sold at the First Closing and
intend to issue and sell at the Second Closing will be at $5.25 per share, which is
below $5.60 per share, the closing price of our common stock on the AMEX on December
15, 2005, the last day our common stock traded on the AMEX before the Purchase
Agreements were entered into. |
For the above reasons, we are required under the AMEX rules to obtain shareholder approval
prior to issuing and selling the Securities at the Second Closing. We were not required to obtain
shareholder approval for the issuance and sale of the shares of common stock and warrants issued at
the First Closing.
Effects of the Private Placement
The Private Placement will result in a significant increase in the number of shares of our
common stock outstanding, and, as a result, current shareholders who are not participating in the
Private Placement would own a smaller percentage of our outstanding common stock and, accordingly,
a smaller percentage interest in the voting power, liquidation value and book value of our company.
The sale or resale of any of our common stock issued pursuant to the Private Placement could cause
the market price of our common stock to decline.
Our shareholders will incur dilution of their percentage of stock ownership in us if the
Second Closing occurs. Immediately following the First Closing, 12,186,380 shares of our common
stock were outstanding after giving effect to the issuance of 2,000,003 shares of our common stock
at the First Closing. If the Second Closing occurs (assuming no issuance of any shares between the
First Closing and the Second Closing), a total of 13,043,523 shares of our common stock will be
outstanding. Further, upon exercise of the warrants, an additional 1,000,000 shares will be
outstanding, which will cause further dilution. In addition, the warrants contain certain
anti-dilution provisions that if triggered, would cause a decrease in the exercise price of the
warrants and would result in more shares of common stock being issuable upon exercise of the
warrants. The shareholder approval of the issuance of the Securities at the Second Closing
includes approval of the additional shares that may become issuable as a result of the
anti-dilution provisions in the warrants.
Reasons for the Private Placement
On February 8, 2005, we closed a transaction with Coconut Palm Capital Investors II, Ltd.
(Coconut Palm), which we entered into on November 17, 2004. Coconut Palm purchased from us
5,000,000 Units for an aggregate purchase price of $25 million. Each Unit consisted of (i) one
share of our common stock, (ii) one warrant to purchase one share of our common stock at an
exercise price of $6.00 per share with a term of three years and (iii) one warrant to purchase one
share of our common stock at an exercise price of $7.00 per share with a term of five years. In
connection with the investment by Coconut Palm, we formed a new Lawn and Pest Control Services
Division for future acquisitions.
The Lawn and Pest Control Services Division acquired its first company on June 7, 2005,
through the acquisition by our subsidiary, Sunair Southeast Pest Holdings, Inc., of all of the
outstanding capital stock of Middleton Pest Control, Inc., a Florida corporation (Middleton).
The aggregate purchase price for the outstanding capital stock of Middleton was $50 million, which
was comprised of: (i) $35.0 million in cash; (ii) $5.0 million in the form of a subordinated
promissory note; and (iii)1,028,807 shares of our common stock.
We plan to use the proceeds from the sale of our common stock in the Private Placement and the
exercise of the warrants, if any, for working capital and general corporate purposes and additional
acquisitions in the Lawn and Pest Control Services Division. We plan initially to focus on
acquisitions in the southeastern United States including Alabama, Georgia, Louisiana, Mississippi
and Florida, but will consider additional super regional acquisitions in other geographic areas.
Ultimately, we anticipate that with the growth of our new Lawn and Pest Control Services Division,
we no longer will operate solely through our traditional business segment. Furthermore, as we are
able to grow our Lawn and Pest Control Services Division through acquisitions and, eventually
through internal organic growth, we contemplate that this new division will become our dominant
operation. Accordingly, if we are successful in implementing this strategy, it will represent a
fundamental shift in the nature of our business.
3
Our board of directors has determined that obtaining additional funds pursuant to the Private
Placement is critical to our companys ability to execute on its current business plan to grow the
new Lawn and Pest Control Services Division through acquisitions of companies in the lawn and pest
control services sector and through internal growth. However, because of the restrictions of AMEX
rules, we are limited in the amount we may raise through the private sale of our equity securities
without obtaining shareholder approval. If the conditions to the Second Closing of the Private
Placement are satisfied, we will raise up to $15 million in the Private Placement, including
approximately $4.5 million in gross proceeds at the Second Closing.
Summary of the Purchase Agreements
The material terms of the Purchase Agreements are summarized below. A copy of the form of
Purchase Agreement was filed by us as an exhibit to the Current Report on Form 8-K, filed with the
Securities and Exchange Commission (the SEC) on December 21, 2005, and is attached to this
Information Statement as Annex A. You are encouraged to review the full text of the form of
Purchase Agreement. The following summary is qualified in its entirety by reference to the more
detailed terms set forth in the Purchase Agreements.
Conditions to Consummating the Second Closing
Under the terms of the Purchase Agreements, the investors obligation to consummate the Second
Closing is subject to the following material conditions:
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the Second Closing occurs on or before the 45th day following the First
Closing; |
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our representations and warranties set forth in the Purchase Agreements are accurate
in all material respects as of the Second Closing date; |
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we have filed with the SEC and mailed to our shareholders this Information Statement
at least 20 days before the Second Closing date; |
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there has been no material adverse change affecting us, our financial condition or
results of operations; and |
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the sale of our common stock in the Second Closing is not prohibited by any law or
governmental order or regulation. |
Our obligation to consummate the Second Closing is subject to the following material
conditions:
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receipt of funds for the purchase price; |
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the investors representations and warranties set forth in the Purchase Agreements
are accurate in all material respects as of the Second Closing date; |
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the sale of our common stock in the Second Closing is not prohibited by any law or
governmental order or regulation; |
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our shareholders have approved the issuance and sale of the shares of our common
stock to the investors at the Second Closing; and |
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we have sold to investors in the Private Placement common stock and warrants for a
minimum of $11 million (which condition may be waived). |
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Preemptive Rights
Each of the investors in the Private Placement has been granted a preemptive right to purchase
its pro rata share of certain equity securities that we may issue for a period of two years from
the date of the Purchase Agreements. The investors will have the right to purchase the lesser of:
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the number of shares of common stock or securities convertible into common stock in
the new financing that could be purchased for the aggregate purchase price paid for the
shares of common stock and warrants in the Private Placement; or |
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20% of the number of shares of common stock and securities convertible into common
stock issued in the new financing. |
These preemptive rights do not apply to certain types of offerings (the Excluded
Securities), including the following:
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securities issued to strategic investors of ours; |
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shares of common stock issuable upon exercise of stock options under our employee
stock option plan or other employee, board, or consultant incentive plans or agreements
approved by our board of directors or a compensation committee of our board of
directors; |
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securities issued upon the conversion of convertible securities outstanding as of
the applicable closing date; and |
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common stock issued in connection with any business combination. |
Registration Rights
Pursuant to the Purchase Agreements, we agreed to use our best efforts to prepare and file a
registration statement on Form S-3 (the Registration Statement) for the resale of the shares of
our common stock and the shares issuable upon exercise of the warrants issued pursuant to the
Purchase Agreements (the Registrable Shares) within 5 days following the Second Closing, but in
no event later than 45 days following the First Closing, and to use our best efforts to cause the
Registration Statement to become effective within 45 days following the Second Closing or within 75
days following the Second Closing if the Registration Statement is reviewed by the SEC. We also
agreed to make such filings as necessary to keep the Registration Statement effective until such
time as the Registrable Shares may be resold pursuant to Rule 144(k), or two years after the
effective date of the Registration Statement.
We are entitled to suspend the effectiveness of the Registration Statement for no more than 30
days on two occasions in any 12 month period. In the event we fail to cause the Registration
Statement to be timely filed, timely declared effective, or to be kept effective (other than
pursuant to the permissible suspension periods), we agreed to pay as liquidated damages the amount
of 0.0667% per day of the aggregate amount invested by each investor in the Private Placement.
Summary of the Warrants
The material terms of the warrants are summarized below. A copy of the form of warrant was
filed by us as an exhibit to the Current Report on Form 8-K, filed with the SEC on December 21,
2005, and is attached to this
Information Statement as Annex B. You are encouraged to review the full text of the form of
warrant. The following summary is qualified in its entirety by reference to the more detailed
terms set forth in the warrant.
Exercise Period
Each of the warrants to be issued in the Private Placement will be exercisable beginning six
months from the date of issuance and will have a term of five years.
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Exercise Price, Adjustment to Exercise Price and Number of Shares
The exercise price of the warrants is initially $6.30 per share. The exercise price of and
the number of shares issuable under the warrants are subject to customary adjustments in certain
events, including reclassification of our securities, certain mergers, consolidations, sales of
substantially all of our assets, subdivision or combination of our shares, stock dividends and
other distributions by us. In addition, the exercise price will be reduced, and the number of
shares issuable under the warrants will be increased, if, at any time prior to the one year
anniversary of the date of issuance, we issue or sell shares of our common stock, or securities
convertible into our common stock (other than Excluded Securities), at a price less than the
exercise price in effect at the time of the issuance or sale.
Further, if, at any time after the one year anniversary of the date of issuance, we issue or
sell shares of our common stock, or securities convertible into our common stock (other than
Excluded Securities), at a price less than the exercise price in effect at the time of issuance or
sale, then the exercise price shall be reduced subject to an adjusted weighted-average exercise
price calculated by dividing (i) the product of the outstanding shares of common stock times the
current exercise price plus the aggregate consideration received for the additional securities, by
(ii) the product of the outstanding shares of common stock plus the amount of additional
securities.
In no event shall the adjusted exercise price be (1) greater than the original exercise price
or (2) less than $5.60, which was the market price of our common stock on the date of the Purchase
Agreements, until the shareholder consent approving the issuance of the Securities becomes
effective.
6
SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT
The following table sets forth as of December 21, 2005 (or such other date indicated in the
footnotes below) the number and percentage of shares beneficially owned before giving effect to the
securities to be issued in the Second Closing by the following: (i) each person known to us to own
beneficially more than 5 percent of the outstanding shares of our common stock; (ii) each of our
current directors; (iii) each of our executive officers who had an annual salary and bonus for 2005
in excess of $100,000 and our President and Chief Executive Officer; and (iv) all of our directors
and executive officers as a group.
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Number of Shares |
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Beneficially |
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Percent of |
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Name(1) |
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Owned(2) |
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Common Stock |
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Coconut Palm
Capital Investors II, Ltd.
595 South Federal Highway
Suite 600, Boca Raton, FL 33342(3) |
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14,995,900 |
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67.6 |
% |
Michael
Brauser
595 S. Federal Highway
Boca Raton, FL 33432(4) |
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1,200,000 |
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9.4 |
% |
Trustman c/o
STI Classic Small Cap Growth Fund
c/o: Trusco Capital Management, Inc.
50 Hurt Plaza, #1400
Atlanta, GA 30303(5) |
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1,000,000 |
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8.2 |
% |
Joseph S. DiMartino |
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0 |
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* |
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Mario B. Ferrari(6) |
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14,995,900 |
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67.6 |
% |
Arnold Heggestad, Ph.D. (7) |
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28,000 |
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* |
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Michael D. Herman |
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2,056,700 |
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16.9 |
% |
James E. Laurent(8) |
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57,663 |
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* |
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Steven P. Oppenheim(9) |
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20,000 |
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* |
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Richard C. Rochon(6) |
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14,995,900 |
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67.6 |
% |
Charles P. Steinmetz |
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411,524 |
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3.4 |
% |
Gregory A. Clendenin(10) |
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205,761 |
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1.7 |
% |
Synnott B. Durham(11) |
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38,658 |
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* |
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John J. Hayes(12) |
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623,266 |
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4.9 |
% |
All directors and executive officers as a group
(11 persons) (13) |
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18,437,472 |
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80.5 |
% |
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* |
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Less than 1%. |
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(1) |
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Except as otherwise indicated, the address of each person named in this table is c/o Sunair
Services Corporation,
3005 S.W. Third Avenue, Fort Lauderdale, Florida 33315. |
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(2) |
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In determining the number and percentage of shares beneficially owned by each person, shares
that may be acquired by such person pursuant to options or warrants exercisable within 60 days
after December 21, 2005 are deemed outstanding for purposes of determining the total number of
outstanding shares for such person and are not deemed outstanding for such purpose for all other
shareholders. To our knowledge, except as otherwise indicated, beneficial ownership includes sole
voting and dispositive power with respect to all shares owned by them. |
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(3) |
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Consists of 4,995,900 shares of our common stock and 10,000,000 shares of our common stock
underlying warrants issued to Coconut Palm that are immediately exercisable. Coconut Palm has the
sole power to dispose of 13,430,000 shares of common stock beneficially owned by it. Coconut Palm
has the sole power to vote, or to direct the vote of, 14,995,900 shares of Common Stock. 1,565,900
of the 14,995,900 shares of our common stock consist of an aggregate of 780,900 shares of common
stock and 785,000 shares underlying warrants that are immediately
exercisable, which Coconut Palm has the sole power to vote pursuant to proxy agreements that were
executed by certain limited partners of Coconut Palm upon their redemption of their limited
partnership interests for shares of our common stock and warrants to purchase shares of our common
stock beneficially owned by Coconut Palm. |
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Richard C. Rochon, Chairman of our Board of Directors,
and Mario B. Ferrari, Vice Chairman of our Board of Directors, are the natural persons who exercise
voting and investment control over the shares. |
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(4) |
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Mr. Brauser acquired such shares upon the redemption of his limited partnership interests in
Coconut Palm and has granted Coconut Palm the sole power to vote such shares pursuant to a proxy
agreement. Includes 600,000 shares underlying warrants that are immediately exercisable. |
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(5) |
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Includes 300,000 shares of common stock that Trustman has the right (and obligation) to
acquire at the Second Closing pursuant to a Purchase Agreement, because satisfaction of the only material condition to
such acquisition, the approval of the issuance of such shares by our shareholders, has been
obtained. |
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(6) |
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Shares consist of all shares beneficially owned by Coconut Palm. Assumes beneficial ownership
of such shares is attributed to Messrs. Rochon and Ferrari. Messrs. Rochon and Ferrari disclaim
beneficial ownership of these shares. |
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(7) |
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Includes 20,000 shares issuable upon exercise of options that are exercisable within 60 days
after December 21, 2005. |
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(8) |
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Includes 21,658 shares issuable upon exercise of options that are exercisable within 60 days
after December 21, 2005. |
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(9) |
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Consists of 20,000 shares issuable upon exercise of options that are exercisable within 60 days
after December 21, 2005. |
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(10) |
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The shares are held by The Gregory A. Clendenin Trust, of which Mr. Clendenin is the trustee. |
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(11) |
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Includes 21,658 shares issuable upon exercise of options that are exercisable within 60 days
after December 21, 2005. |
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(12) |
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Includes 41,666 shares issuable upon exercise of options that are exercisable within 60 days
after December 21, 2005. Also includes 290,800 shares of our common stock and 290,800 shares
underlying warrants that Mr. Hayes has the immediate right to acquire as a limited partner of
Coconut Palm. Upon his acquisition of the shares that Mr. Hayes has the right to acquire as a
limited partner of Coconut Palm, Coconut Palm will have the sole power to vote such shares. Mr.
Hayes began serving as our President and Chief Executive Officer in February, 2005. |
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(13) |
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Includes 10,706,582 shares issuable upon exercise of options and warrants that are
immediately exercisable or are exercisable within 60 days after December 21, 2005. |
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By Order of the board of directors |
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/s/ SYNNOTT B. DURHAM
Synnott B. Durham
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Secretary and Chief Financial Officer |
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Fort Lauderdale, FL |
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, 2005 |
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8
ANNEX A
FORM OF PURCHASE AGREEMENT
PURCHASE AGREEMENT
THIS
AGREEMENT (this Agreement) is made as of the ___ day of December 2005, by and between
Sunair Services Corporation (formerly known as Sunair Electronics, Inc.) (the Company), a
corporation organized under the laws of the State of Florida, with its principal offices at 3005 SW
Third Avenue, Fort Lauderdale, Florida 33315, and the purchaser whose name and address is set forth
on the signature page hereof (the Purchaser). As used herein, the term Placement Agent shall
mean Roth Capital Partners, LLC.
IN CONSIDERATION of the mutual covenants contained in this Agreement, the Company and the
Purchaser agree as follows:
SECTION 1. Authorization of Sale of the Securities. Subject to the terms and
conditions of this Agreement, the Company has authorized, subject to the Company obtaining
Stockholder Approval (as defined herein), the issuance and sale to the Purchaser pursuant to this
Agreement, in two tranches, an Initial Closing and a Second Closing (as such terms are defined in
Sections 3.2 and 3.3, respectively), of shares of Common Stock, par value $0.10 per share (the
Common Stock), of the Company, and warrants (the Warrants) to purchase shares of Common Stock
of the Company. The shares of Common Stock and Warrants (including the underlying shares of Common
Stock) to be issued and sold by the Company to the Purchaser pursuant to this Agreement at the
Initial Closing are referred to herein as the Initial Securities and shall in no event exceed an
amount equal to 19.9% of the Companys issued and outstanding Common Stock as of the Initial
Closing. The shares of Common Stock and Warrants (including the underlying shares of Common Stock)
to be issued and sold to the Purchaser pursuant to this Agreement at the Second Closing are
referred to herein as the Additional Securities. The Initial Securities and the Additional
Securities, together with those additional shares of Common Stock issued to the Purchaser pursuant
to Section 8 hereof (the Anti-Dilution Shares), are referred to herein as the Securities. One
share of Common Stock and the accompanying one Warrant shall also be referred to as a Unit.
SECTION 2. Agreement to Sell and Purchase the Securities. At each Closing (as defined
in Section 3), the Company will issue and sell to the Purchaser, and the Purchaser will buy from
the Company, upon the terms and subject to the conditions hereinafter set forth, the aggregate
number of shares of Common Stock and Warrants at a purchase price of $5.25 per Unit.
SECTION 3. Delivery of the Securities at the Closings.
3.1 Location of the Closings. The Initial Closing (as defined below) and the Second
Closing (as defined below) shall occur at the offices of Lowenstein Sandler PC, 1251 Avenue of
the Americas, New York, New York 10020.
3.2 The Initial Closing. The completion of the purchase and sale of the Initial
Securities (the Initial Closing) shall occur as soon as practicable and as agreed to by the
parties hereto within, but not more than, three (3) business days following the execution of this
A- 1
Agreement, or on such later date or at such different location as the parties shall agree in
writing, but not prior to the date that all of the conditions precedent to the Initial
Closing set forth in Section 3.5(a) below have been satisfied or waived by the appropriate
party (the Initial Closing Date). The Initial Closing shall occur at a time to be agreed
upon by the Company and the Placement Agent and of which the Purchaser will be notified by
facsimile transmission or otherwise.
3.3 The Second Closing. The completion of the purchase and sale of the Additional
Securities (the Second Closing) shall occur as soon as practicable, but not more than three
(3) business days following the date on which all of the conditions relevant to the Second
Closing set forth in Section 3.5(b) below have been satisfied or waived by the appropriate
party but no later than 45 days after the Initial Closing Date or such later date or at such
different location as the Company and the Purchaser shall agree in writing (the Second
Closing Date). The Second Closing shall occur at a time to be agreed upon by the Company and
the Placement Agent and of which the Purchaser will be notified by facsimile transmission or
otherwise.
3.4 Actions to be Taken Prior to, and at, each Closing. (a) At the Initial Closing, the
Company shall deliver to the Purchaser one or more certificates registered in the name of the
Purchaser, or, if so indicated on the Securities Certificate Questionnaire attached hereto as
Appendix II, in such nominee name(s) as designated by the Purchaser, representing the number
of shares of Common Stock and Warrants to be purchased by the Purchaser at the Initial
Closing, each bearing an appropriate legend referring to the fact that the Initial Securities
were sold in reliance upon the exemption from registration under the Securities Act of 1933,
as amended (the Securities Act) provided by Section 4(2) thereof and Rule 506 thereunder.
The name(s) in which the certificates are to be registered are set forth in the Securities
Certificate Questionnaire attached hereto as Appendix II.
(b) At the Second Closing, the Company shall deliver to the Purchaser one or more certificates
registered in the name of the Purchaser, or, if so indicated on the Securities Certificate
Questionnaire attached hereto as Appendix II, in such nominee name(s) as designated by the
Purchaser, representing the number of shares of Common Stock and Warrants to be purchased by
such Purchaser at the Second Closing, each bearing an appropriate legend referring to the fact
that the Additional Securities were sold in reliance upon the exemption from registration
under the Securities Act provided by Section 4(2) thereof and Rule 506 thereunder. The
name(s) in which the certificates are to be registered are set forth in the Securities
Certificate Questionnaire attached hereto as Appendix II.
3.5
Conditions Precedent to each Closing. (a)
The Initial Closing. The Companys
obligation to complete the purchase and sale of the Initial Securities and deliver
certificates representing the Initial Securities to the Purchaser at the Initial Closing shall
be subject to the following conditions, any one or more of which may be waived by the Company:
(i) receipt by the Company of same-day funds in the full amount of the purchase price for the
Initial Securities being purchased hereunder; (ii) simultaneously with, or prior to, the
Initial Closing, the Company shall have sold shares of Common Stock and Warrants to third
party purchasers, who are not acting in concert with the Purchaser, for an aggregate minimum
of $11 million, which shares of Common Stock and Warrants shall be sold to such third party
A- 2
purchasers on the same terms and conditions as are set forth herein; (iii) the sale of the
Initial Securities shall not be prohibited by any law or governmental law or governmental
order or regulation, including the American Stock Exchange; and (iv) the accuracy in all
material respects of the representations and warranties made by the Purchaser (as if such
representations and warranties were made on the Initial Closing Date) and the fulfillment of
those undertakings of the Purchaser to be fulfilled prior to the Initial Closing. The
Purchasers obligation to accept delivery of such certificates and to pay for the Initial
Securities evidenced thereby shall be subject to the following conditions, any one or more
of which may be waived by the Placement Agent after consultation with the Purchaser: (i) the
accuracy in all material respects of the representations and warranties of the Company made
herein as of the Initial Closing Date; (ii) the delivery to the Purchaser by counsel to the
Company of a legal opinion in form and substance reasonably satisfactory to counsel to the
Placement Agent; (iii) the execution of those certain Lock-up Agreements attached hereto as
Exhibits C-1 and C-2, (iv) the fulfillment in all material respects of those undertakings of
the Company to be fulfilled prior to the Initial Closing; and (v) simultaneously with the
Initial Closing, the Company shall have sold shares of Common Stock and Warrants to third
party purchasers, who are not acting in concert with the Purchaser, for an aggregate minimum
of $11 million, which shares of Common Stock and Warrants shall be sold to such third party
purchasers on the same terms and conditions as are set forth herein.
(b) The Second Closing. The Companys obligation to complete the purchase and sale of
the Additional Securities and deliver certificates representing such securities to the
Purchaser at the Second Closing shall be subject to the following conditions, any one of which
may be waived by the Company: (i) receipt by the Company of same-day funds in the full amount
of the purchase price for the Additional Securities being purchased hereunder; (ii) the
accuracy in all material respects of the representations and warranties made by the Purchaser
(as if such representations and warranties were made on the Second Closing Date) and the
fulfillment of those undertakings of the Purchaser to be fulfilled prior to the Second
Closing; (iii) the sale of the Additional Securities shall not be prohibited by any law or
governmental law or governmental order or regulation; (iv) the Company shall have obtained the
requisite stockholder approval via written consent (the Stockholder Approval) for the
issuance of the Additional Securities at the Second Closing (together with the Initial
Securities) and the Anti-Dilution Shares in a manner that complies with Section 705 of the
American Stock Exchange Company Guide and all other relevant rules and regulations of the
American Stock Exchange; and (v) simultaneously with, or prior to, the Second Closing, the
Company shall have sold shares of Common Stock and Warrants to third party purchasers, who are
not acting in concert with the Purchaser, for an aggregate minimum of $11 million, which
shares of Common Stock and Warrants shall be sold to such third party purchasers on the same
terms and conditions as are set forth herein. The Purchasers obligation to accept delivery
of such certificates and to pay for the Additional Securities evidenced thereby shall be
subject to the following conditions, any one or more of which may be waived by the Placement
Agent after consultation with the Purchaser: (i) the Company shall have scheduled the Second
Closing for a date on or prior to the
45th day following the Initial Closing
Date; (ii) each of the representations and
warranties of the Company made herein shall be
accurate in all material respects as of the Second
Closing Date; (iii) the delivery to the Purchaser
by counsel to the Company of a legal opinion in a
form and substance reasonably satisfactory to
counsel to the Placement Agent; (iv) the Company
shall have filed with the Securities and Exchange
Commission (the Commission) (x) a preliminary
information statement at least 11 calendar days
prior to the date on which the definitive
Information
A- 3
Statement (as defined below) was
mailed to security holders and (y) a definitive
information statement (the Information
Statement) at least 20 calendar days prior to the
Second Closing Date; (v) the absence of any
material adverse change affecting the Company, its
financial condition or its results of operations;
(vi) the sale of the Additional Securities shall
not be prohibited by any law or governmental order
or regulation; (vii) the fulfillment in all
material respects of those undertakings of the
Company to be fulfilled prior to the Second
Closing and (viii) simultaneously with, or prior
to, the Second Closing, the Company shall have
sold shares of Common Stock and Warrants to third
party purchasers, who are not acting in concert
with the Purchaser, for an aggregate minimum of
$11 million, which shares of Common Stock and
Warrants shall be sold to such third party
purchasers on the same terms and conditions as are
set forth herein.
3.6 Escrow of Purchase Price.
3.6.1 Simultaneously with the execution and delivery of a counterpart to this Agreement by the
Purchaser, such Purchaser shall promptly cause a wire transfer of immediately available funds (U.S.
dollars) in an amount representing such Purchasers Aggregate Purchase Price, as set forth on
such Purchasers signature page, to be paid to the non-interest bearing escrow account of
Lowenstein Sandler PC, the Placement Agents counsel (Placement Agents Counsel), set forth on
Appendix I hereto (the aggregate amounts being held in escrow are referred to herein as the Escrow
Amount). Placement Agents Counsel shall hold the Escrow Amount in escrow until (i) Placement
Agents Counsel receives written instructions from the Company and the Placement Agent authorizing
the release of the Escrow Amount; (ii) Placement Agents Counsel receives written instructions from
the Company and/or the Purchaser that the Agreement has been terminated in accordance with Section
21 in which case Placement Agents Counsel shall return to the Purchaser the portion of the Escrow
Amount such Purchaser delivered to the Placement Agents Counsel; or (iii) ninety (90) days after
the date of this Agreement in which case Placement Agents Counsel shall return to such Purchaser
the portion of the Escrow Amount such Purchaser delivered to the Placement Agents Counsel. The
Company hereby authorizes the Placement Agents Counsel to release from the Escrow Amount, at the
Initial Closing and the Second Closing, without further action or deed (other than receipt of the
written instructions from the Company and the Placement Agent authorizing the release of the Escrow
Amount), the (i) the cash commission (the Placement Fee) to be paid to the Placement Agent
pursuant to the terms of the agreement between the Company and the Placement Agent; and (ii) the
Escrow Amount less the Placement Fee to the Company.
3.6.2. The Company and the Purchaser acknowledge and agree for the benefit of Placement
Agents Counsel (which shall be deemed to be a third party beneficiary of this Section 3.6) as
follows:
(a) Placement Agents Counsel (i) is not responsible for the performance by the Company or the
Purchaser of this Agreement or the Warrant or for determining or compelling compliance therewith;
(ii) is only responsible for (A) holding the Escrow Amount in escrow pending receipt of written
instructions from the Placement Agent and the Company directing the release of the Escrow Amount in
accordance with Section 3.6.1, (B) disbursing the Escrow Amount in accordance with the written
instructions from the Company and/or the Purchaser in accordance with Section 3.6.1 or (C)
disbursing the Escrow Amount to
A- 4
such Purchaser 90 days following the date of this Agreement, each
of the responsibilities of Placement Agents Counsel in clauses (A), (B) and (C) is ministerial in
nature, and no implied duties or obligations of any kind shall be read into this Agreement against
or on the part of Placement Agents Counsel (collectively, the Placement Agents Counsel Duties);
(iii) shall not be obligated to take any legal or other action hereunder which might in its
judgment involve or cause it to incur any expense or liability unless it shall have been furnished
with indemnification acceptable to it, in its sole discretion; (iv) may rely on and shall be
protected in acting or refraining from acting upon any written notice, instruction (including,
without limitation, wire transfer instructions, whether incorporated herein or provided in a
separate written instruction), instrument, statement, certificate, request or other document
furnished to it hereunder and believed by it to be genuine and to have been signed or presented by
the proper person, and shall have no responsibility for making inquiry as to, or for determining,
the genuineness, accuracy or validity thereof, or of the authority of the person signing or
presenting the same; and (v) may consult counsel satisfactory to it, and the opinion or advice of
such counsel in any instance shall be full and complete authorization and protection in respect of
any action taken, suffered or omitted by it hereunder in good faith and in accordance with the
opinion or advice of such counsel. Documents and written materials referred to in this Section
3.6.2(a) include, without limitation, e-mail and other electronic transmissions capable of being
printed, whether or not they are in fact printed; and any such e-mail or other electronic
transmission may be deemed and treated by Placement Agents Counsel as having been signed or
presented by a person if it bears, as sender, the persons e-mail address.
(b) Placement Agents Counsel shall not be liable to anyone for any action taken or omitted to
be taken by it hereunder in connection with its Placement Agents Counsel Duties, except in the
case of Placement Agents Counsels gross negligence, willful misconduct or bad faith (in each
case, as finally determined by a court of competent jurisdiction) in breach of the Placement
Agents Counsel Duties. IN NO EVENT SHALL THE PLACEMENT AGENT BE LIABLE FOR INDIRECT, PUNITIVE,
SPECIAL OR CONSEQUENTIAL DAMAGE OR LOSS (INCLUDING BUT NOT LIMITED TO LOST PROFITS) WHATSOEVER,
EVEN IF PLACEMENT AGENTS COUNSEL HAS BEEN INFORMED OF THE LIKELIHOOD OF SUCH LOSS OR DAMAGE AND
REGARDLESS OF THE FORM OF ACTION.
(c) The Company and the Purchaser hereby indemnify and hold harmless Placement Agents Counsel
from and against, any and all loss, liability, cost, damage and expense, including, without
limitation, reasonable counsel fees and expenses, which Placement Agents Counsel may suffer or
incur by reason of any action, claim or proceeding brought against Placement Agents Counsel
arising out of or relating to the performance of the Placement Agents Counsel Duties, unless such
action, claim or proceeding is the result of the
gross negligence, willful misconduct or bad faith (in each case, as finally determined by a
court of competent jurisdiction) of Placement Agents Counsel.
(d) Placement Agents Counsel has acted as legal counsel to the Placement Agent in connection
with this Agreement, is merely acting as an escrow agent under this Agreement and is, therefore,
hereby authorized to continue acting as legal counsel to the Placement Agent including, without
limitation, with regard to any dispute arising out of this Agreement, the Warrant, the Escrow
Amount or any other matter. Each of the Company and the
A- 5
Purchaser hereby expressly consents to
permit Placement Agents Counsel to represent the Placement Agent in connection with all matters
relating to or arising from this Agreement, including, without limitation, with regard to any
dispute arising out of this Agreement, the Warrant, the Escrow Amount or any other matter, and
hereby waives any conflict of interest or appearance of conflict or impropriety with respect to
such representation. Each of the Company and the Purchaser has consulted with its own counsel
specifically about this Section 3.6 to the extent they deemed necessary, and has entered into this
Agreement after being satisfied with such advice.
SECTION 4. Representations, Warranties and Covenants of the Company. The Company
hereby represents and warrants to, and covenants with, the Purchaser on the date hereof, on the
Initial Closing Date and on the Second Closing Date as follows:
4.1 Organization and Qualification. The Company is a corporation duly incorporated,
validly existing and in good standing under the laws of the State of Florida and the Company
is qualified to do business as a foreign corporation in each jurisdiction in which
qualification is required, except where failure to so qualify would not reasonably be expected
to have a Material Adverse Effect (as defined herein). The material subsidiaries of the
Company are listed on Exhibit A (each a Subsidiary and collectively, the Subsidiaries).
Each Subsidiary is a direct or indirect wholly owned subsidiary of the Company. Each
Subsidiary is duly organized, validly existing and in good standing under the laws of its
jurisdiction of organization and is qualified to do business as a foreign entity in each
jurisdiction in which qualification is required, except where failure to so qualify would not
reasonably be expected to have a Material Adverse Effect. For purposes of this Agreement, the
term Material Adverse Effect shall mean a material adverse effect upon the business,
prospects, financial condition, properties or results of operations of the Company and its
Subsidiaries, taken as a whole.
4.2 Authorized Capital Stock. The Company has the outstanding capital stock as most
recently set forth in the Company Documents as filed with the Commission. The issued and
outstanding shares of the Companys Common Stock have been duly authorized and validly issued,
are fully paid and nonassessable, have been issued in compliance with all federal and state
securities laws, were not issued in violation of or subject to any preemptive rights or other
rights to subscribe for or purchase securities. The Company has authorized the issuance and
sale of the Securities to the Purchasers at the Initial Closing and the Second Closing.
Except as disclosed in the Company Documents as filed with the Commission, the Company does
not have outstanding any options to purchase, or any preemptive rights or other rights to
subscribe for or to purchase, any securities or obligations convertible into, or any contracts
or commitments to issue or sell, shares of its capital stock or any such options, rights,
convertible securities or obligations. The description of the
Companys stock, stock bonus and other stock plans or arrangements and
the options or other rights granted and exercised thereunder set forth
in the Company Documents as filed with the Commission accurately and
fairly presents all material information with respect to such plans,
arrangements, options and rights. With respect to each Subsidiary, (i)
all the issued and outstanding shares of each Subsidiarys capital
stock have been duly authorized and validly issued, are fully paid and
nonassessable, have been issued in compliance with applicable federal
and state securities laws, were not issued in violation of or subject
to any preemptive rights or other rights to subscribe for or purchase
securities, and (ii) there are no outstanding options to purchase, or
any preemptive rights or other rights to subscribe
A- 6
for or to purchase,
any securities or obligations convertible into, or any contracts or
commitments to issue or sell, shares of any Subsidiarys capital stock
or any such options, rights, convertible securities or obligations.
4.3 Issuance, Sale and Delivery of the Securities.
(a) The Securities have been duly authorized and, when issued, delivered and paid for in the
manner set forth in this Agreement, will be duly authorized, validly issued, fully paid and
nonassessable and free and clear of all pledges, liens, restrictions and encumbrances (other
than restrictions on transfer under state and/or federal securities laws).
(b) The Warrants have been duly authorized. Upon the exercise of the Warrants, the Common Stock
issuable upon exercise of the Warrants will be duly authorized, validly issued, fully paid and
nonassessable and free and clear of all pledges, liens, restrictions and encumbrances (other
than restrictions on transfer under state and/or federal securities laws). The Company has
reserved sufficient number of shares of Common Stock for issuance upon the exercise of the
Warrants free and clear of all pledges, liens, restrictions and encumbrances (other than
restrictions on transfer under state and/or federal securities laws). The Warrants shall take
the form of and conform with that certain Form of Warrant attached as Exhibit B hereto.
(c) The Anti-Dilution Shares have been duly authorized. When issued pursuant to Section 8
hereof, the Anti-Dilution Shares will be validly issued, fully paid and nonassessable, and
free and clear of all pledges, liens, restrictions and encumbrances (other than restrictions
on transfer under state and/or federal securities laws). The Company has reserved sufficient
number of shares of Common Stock for issuance of the Anti-Dilution Shares in accordance with
Section 8 free and clear of all pledges, liens, restrictions and encumbrances (other than
restrictions on transfer under state and/or federal securities laws).
(d) No preemptive rights or other rights to subscribe for or purchase exist with respect to the
issuance and sale of the Securities by the Company pursuant to this Agreement. Except as
disclosed the Company Documents as filed with the Commission, no stockholder of the Company
has any right (which has not been waived or has not expired by reason of lapse of time
following notification of the Companys intent to file the registration statement to be filed
by it pursuant to Section 7.1 (the Registration Statement)) to
require the Company to register the sale of any shares owned by such stockholder under the
Securities Act in the Registration Statement. Other than the Stockholder Approval to be
obtained in connection with the Additional Securities and the Anti-Dilution Shares, no
further approval or authority of the stockholders or the Board of Directors of the Company
will be required for the issuance and sale of the Securities to be sold by the Company as
contemplated herein.
4.4
Due Execution, Delivery and Performance of this Agreement. The Company has full
legal right, corporate power and authority to enter into this Agreement and to perform the
transactions contemplated hereby, subject in the case of the issuance, sale and delivery of
the Additional Securities and the Anti-Dilution Shares to obtaining Stockholder Approval.
This Agreement has been duly authorized, executed and delivered by the Company. The
execution, delivery and performance of this Agreement by the Company and the consummation of
the transactions herein contemplated will not violate any provision of the
A- 7
certificate of
incorporation or bylaws of the Company or any of its Subsidiaries and will not result in the
creation of any lien, charge, security interest or encumbrance upon any assets of the Company
or any of its Subsidiaries pursuant to the terms or provisions of, and will not (i) conflict
with, result in the breach or violation of, or constitute, either by itself or upon notice or
the passage of time or both, a default under (A) any agreement, lease, franchise, license,
permit or other instrument to which the Company or any of its Subsidiaries is a party or by
which the Company or any of its Subsidiaries or any of their respective properties may be
bound or affected and in each case which would have a Material Adverse Effect, or (B) to the
Companys knowledge, any statute or any judgment, decree, order, rule or regulation of any
court or any regulatory body, administrative agency or other governmental body applicable to
the Company or any of its Subsidiaries or any of their respective properties where such
conflict, breach, violation or default is likely to result in a Material Adverse Effect. No
consent, approval, authorization or other order of any court, regulatory body, administrative
agency or other governmental body is required for the execution and delivery of this Agreement
or the consummation of the transactions contemplated by this Agreement, except for compliance
with the blue sky laws and federal securities laws applicable to the offering of the
Securities to the Purchaser. Upon the execution and delivery of this Agreement, and assuming
the valid execution thereof by the Purchaser, this Agreement will constitute a valid and
binding obligation of the Company, enforceable in accordance with its terms, except as
enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium
or similar laws affecting creditors and contracting parties rights generally and except as
enforceability may be subject to general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law) and except as the
indemnification agreements of the Company in Section 7.3 hereof may be limited by federal or
state securities laws or the public policy underlying such laws.
4.5 Accountant. The firm of Berenfeld Spritzer Schechter & Sheer, which has expressed
its opinion with respect to the consolidated financial statements to be included or
incorporated by reference in the Registration Statement and the prospectus which forms a part
thereof (the Prospectus), is an independent accountant as required by the Securities Act and
the rules and regulations promulgated thereunder (the Rules and Regulations).
4.6 No Defaults. Neither the Company nor any of its Subsidiaries is in violation or
default of any provision of its certificate of incorporation or bylaws, or in breach of or
default with respect to any provision of any agreement, judgment, decree, order, lease,
franchise, license, permit or other instrument to which it is a party or by which it or any of
its properties are bound which could reasonably be expected to have a Material Adverse Effect
and there does not exist any state of facts which, with notice or lapse of time or both, would
constitute an event of default on the part of the Company or any of its Subsidiaries as
defined in such documents and which would have a Material Adverse Effect.
4.7 Contracts. All of the Companys material contracts have been filed with the
Commission. All of such contracts are in full force and effect on the date hereof; and
neither the Company nor any of its Subsidiaries is, nor, to the Companys knowledge, is any
other party in breach of or default under any of such contracts which would have a Material
Adverse Effect.
A- 8
4.8 No Actions. Except as disclosed in the Company Documents as filed with the
Commission, (1) there are no legal or governmental actions, suits or proceedings pending and
(2) to the Companys knowledge, there are no inquiries or investigations, nor are there any
legal or governmental actions, suits, or proceedings threatened to which the Company or any of
its Subsidiaries is or may be a party or of which property owned or leased by the Company or
any of its Subsidiaries is or may be the subject, or related to environmental or
discrimination matters, which actions, suits or proceedings, individually or in the aggregate,
might reasonably be expected to have a Material Adverse Effect; and no labor disturbance by
the employees of the Company or any of its Subsidiaries exists or, to the Companys knowledge,
is imminent which might reasonably be expected to have a Material Adverse Effect. Neither the
Company nor any of its Subsidiaries is party to or subject to the provisions of any
injunction, judgment, decree or order of any court, regulatory body, administrative agency or
other governmental body which might reasonably be expected to have a Material Adverse Effect.
4.9 Properties. The Company and the Subsidiaries have good and marketable title to all
properties and assets reflected as owned in the financial statements included in the Company
Documents as filed with the Commission, subject to no lien, mortgage, pledge, charge or
encumbrance of any kind except (i) those, if any, reflected in such financial statements, or
(ii) those which are not material in amount and do not adversely affect the use of such
property by the Company and its Subsidiaries. Each of the Company and its Subsidiaries holds
its leased properties under valid and binding leases, with such exceptions as are not
materially significant in relation to its business taken as a whole.
4.10 No Material Change. Except as disclosed in the Company Documents as filed with the
Commission, since March 31, 2005 (i) the Company and its Subsidiaries have not incurred any
material liabilities or obligations, indirect, or contingent, or entered into any material
oral or written agreement or other transaction which is not in the ordinary course of business
or which could reasonably be expected to result in a material reduction in the future earnings
of the Company and its Subsidiaries; (ii) the Company and its Subsidiaries have not sustained
any material loss or interference with their businesses or
properties from fire, flood, windstorm, accident or other calamity not covered by insurance;
(iii) the Company and its Subsidiaries have not paid or declared any dividends or other
distributions with respect to their capital stock and neither the Company nor any of its
Subsidiaries is in default in the payment of principal or interest on any outstanding debt
obligations; (iv) there has not been any change in the capital stock of the Company or any
of its Subsidiaries other than the sale of the Securities hereunder, shares or options
issued pursuant to employee equity incentive plans or purchase plans approved by the
Companys Board of Directors and repurchases of shares or options pursuant to repurchase
plans already approved by the Companys Board of Directors, or indebtedness not incurred in
the ordinary course of business that is material to the Company and its Subsidiaries, taken
as a whole; and (v) there has not been any other event which has caused a Material Adverse
Effect.
4.11 Intellectual Property. Each of the Company and its Subsidiaries owns or has obtained
valid and enforceable licenses or options for the inventions, patent applications, patents,
trademarks (both registered and unregistered), trade names, copyrights and trade secrets
necessary for the conduct of the its business as currently conducted (collectively, the
Intellectual Property). There are no third parties who
have any ownership rights to any
A- 9
Intellectual Property that is owned by, or has been licensed to, the Company or its
Subsidiaries for the products described in the Company Documents as filed with the Commission
that would preclude the Company or its Subsidiaries from conducting its business as currently
conducted and have a Material Adverse Effect, except for the ownership rights of the owners of
the Intellectual Property licensed or optioned by the Company or its Subsidiaries. To the
Companys knowledge, there are currently no sales of any products that would constitute an
infringement by third parties of any Intellectual Property owned, licensed or optioned by the
Company or its Subsidiaries, which infringement would have a Material Adverse Effect. There
is no pending or, to the Companys knowledge, threatened action, suit, proceeding or claim by
others challenging the rights of the Company or its Subsidiaries in or to any Intellectual
Property owned, licensed or optioned by the Company or its Subsidiaries, other than claims
which would not reasonably be expected to have a Material Adverse Effect. There is no pending
or, to the Companys knowledge, threatened action, suit, proceeding or claim by others
challenging the validity or scope of any Intellectual Property owned, licensed or optioned by
the Company or its Subsidiaries, other than non-material actions, suits, proceedings and
claims. There is no pending or, to the Companys knowledge, threatened action, suit,
proceeding or claim by others that the Company any of its Subsidiaries infringes or otherwise
violates any patent, trademark, copyright, trade secret or other proprietary right of others,
other than non-material actions, suits, proceedings and claims.
4.12 Compliance. Neither the Company nor any of its Subsidiaries has been advised, nor
has reason to believe, that it is not conducting its business in compliance with all
applicable laws, rules and regulations of the jurisdictions in which it is conducting its
business, including, without limitation, all applicable local, state and federal environmental
laws and regulations; except where failure to be so in compliance would not have a Material
Adverse Effect.
4.13 Taxes. Each of the Company and its Subsidiaries has filed all necessary federal,
state and foreign income and franchise tax returns and has paid or accrued all taxes shown as
due thereon, and neither the Company nor any of its Subsidiaries has knowledge of a tax
deficiency which has been or might be asserted or threatened against it which might reasonably
be expected to have a Material Adverse Effect.
4.14 Transfer Taxes. On each Closing Date, all stock transfer or other taxes (other than
income taxes) which are required to be paid in connection with the sale and transfer of the
Securities to be sold to the Purchaser hereunder will be, or will have been, fully paid or
provided for by the Company and all laws imposing such taxes will be or will have been
complied with.
4.15 Investment Company. The Company is not an investment company or an affiliated
person of, or promoter or principal underwriter for an investment company, within the
meaning of the Investment Company Act of 1940, as amended.
4.16 Offering Materials. The Company has not distributed and will not distribute prior to
the Closing Date any offering material in connection with the offering and sale of the
Securities to the Purchaser other than the Company Documents. Neither the Company nor any
person acting on its behalf has in the past or will hereafter take any action independent of
the
A- 10
Placement Agent to sell, offer for sale or solicit offers to buy any securities of the
Company which would subject the offer, issuance or sale of the Securities to the Purchaser, as
contemplated by this Agreement, to the registration requirements of Section 5 of the
Securities Act.
4.17 Insurance. The Company and its Subsidiaries maintain insurance of the types and in
the amounts that the Company reasonably believes is adequate for their businesses, including,
but not limited to, insurance covering all real and personal property leased by the Company
and its Subsidiaries against theft, damage, destruction, acts of vandalism and all other risks
customarily insured against by similarly situated companies, all of which insurance is in full
force and effect.
4.18 Additional Information. The information contained in (a) through (h) below (the
Company Documents) did not, as of the date of the applicable document, include any untrue
statement of a material fact or omit to state any material fact required to be stated therein
or necessary to make the statements therein, in the light of the circumstances in which they
were made, not misleading, as of their respective filing dates or, if amended, as so amended:
(a) the Companys Annual Report on Form 10-KSB for the fiscal year ended September 30, 2004;
(b) the Companys Quarterly Report on Form 10-QSB for the quarter ended December 31, 2004;
(c) the Companys Quarterly Report on Form 10-QSB for the quarter ended March 31, 2005;
(d) the Companys Quarterly Report on Form 10-QSB for the quarter ended June 30, 2005;
(e) the Companys Current Reports on Form 8-K filed on May 20, 2005; June 10, 2005; August 19,
2005; August 25, 2005; September 9, 2005; and November 30, 2005;
(f) the Companys Proxy Statement for the Annual Meeting of Stockholders held on February 4,
2005;
(g) the Companys Definitive Information Statement filed on November 11, 2005; and
(h) all other documents, if any, filed by the Company with the Commission since September 30,
2004 pursuant to the reporting requirements of the Securities Exchange Act of 1934, as amended
(the Exchange Act).
4.19 Price of Common Stock. The Company has not taken, and will not take, directly or
indirectly, any action designed to cause or result in, or which has constituted or which might
reasonably be expected to constitute, the stabilization or manipulation of the price of the
shares of the Common Stock to facilitate the sale or resale of the Securities.
A- 11
4.20 Corporate Legal Opinion. As a condition to the Purchasers obligation to purchase
the Securities, legal counsel to the Company will deliver one or more legal opinions to the
Purchaser in a form reasonably satisfactory to counsel to the Placement Agent. Such opinions
also shall state that the Placement Agent may rely thereon as though the opinions were
addressed directly to such Placement Agent.
4.21 Certificate. At each Closing, the Company will deliver to the Purchaser a
certificate executed by the chief executive officer and the chief financial or accounting
officer of the Company, dated as of the applicable Closing Date, in form and substance
reasonably satisfactory to the Purchaser, to the effect that the representations and
warranties of the Company set forth in this Section 4 are true and correct as of the date of
this Agreement and as of such Closing Date and that the Company has complied with all the
agreements and satisfied all the conditions herein on its part to be performed or satisfied on
or prior to such Closing Date.
4.22 Reporting Company; Form S-3. The Company is subject to the reporting requirements of
the Exchange Act. The Company is eligible to register the Securities for resale by the
Purchaser on a registration statement on Form S-3 under the Securities Act. There exist no
facts or circumstances (including without limitation any required approvals or waivers or any
circumstances that may delay or prevent the obtaining of accountants consents) that
reasonably could be expected to prohibit or delay the preparation and filing of a registration
statement on Form S-3 that will be available for the resale of the Securities by the
Purchaser.
4.23 Use of Proceeds. The Company expects to use the proceeds from the sale of Securities
for working capital and general corporate purposes, as well as in connection with selected
acquisitions that may be considered in the future in the lawn and pest control business.
Pending such uses, the Company intends to invest the net proceeds in short-term,
interest-bearing, investment grade securities.
4.24 Approvals. Prior to the Initial Closing, the Company shall obtain approval of the
American Stock Exchange for the transactions contemplated by this Agreement. Prior to the
Second Closing, the Company shall obtain the Stockholder Approval and shall obtain the
approval of the American Stock Exchange for the transactions contemplated by this Agreement.
For clarification purposes only and without implication to the contrary, the transactions
contemplated by this Agreement include only the transaction between the Company and the
Purchaser and do not include any other transaction between the Company and any other third
party purchaser of the Companys securities.
4.25 Non-Public Information. Neither the Company nor, to the Companys knowledge, any
person acting on behalf of the Company, has provided the Purchaser with any information that
the Company believes constitutes material, non-public information. On or before 9:00 a.m. New
York City time on the first business day after the execution of this Agreement, the Company
shall issue a press release announcing the execution of this Agreement, and on or before 5:30
p.m. New York City time on the fourth business day after the execution of this Agreement, the
Company shall file a Current Report on Form 8-K describing the material terms of the
transactions contemplated by this Agreement and attaching as an exhibit to such Form 8-K a
copy of the press release and this Agreement (including such exhibit, the 8-K Filing).
On or before 9:00 a.m. New York City time, on the first business day
after each
A- 12
Closing, the
Company shall issue a press release announcing the consummation of the transactions
contemplated by this Agreement at such Closing, and on or before 5:30 p.m. New York City time
on the fourth business day after each Closing, the Company shall file a Current Report on Form
8-K attaching such press release. The Company shall not, and shall cause each of its
officers, directors, employees, and use its best efforts to cause its agents, not to, provide
the Purchaser with any material nonpublic information regarding the Company from and after the
filing of the 8-K Filing without the express written consent of the Purchaser. The Company
understands and confirms that the Purchaser will rely on the representations and covenants set
forth in this section in effecting transactions in securities of the Company.
4.26 Use of Purchaser Name. Except as may be required by applicable law or regulation,
the Company shall not use the Purchasers name or the name of any of its affiliates in any
advertisement, announcement, press release or other similar public communication unless it has
received the prior written consent of the Purchaser for the specific use contemplated or as
otherwise required by applicable law or regulation.
4.27 Related Party Transactions. No transaction has occurred between or among the
Company, any of the Subsidiaries and their affiliates, officers or directors or any affiliate
or affiliates of any such officer or director that is required to have been described under
applicable securities laws in the Companys Exchange Act filings and is not so described in
such filings.
4.28 Off-Balance Sheet Arrangements. There is no transaction, arrangement or other
relationship between the Company and an unconsolidated or other off-balance sheet entity that
is required to be disclosed by the Company in the Companys Exchange Act filings and is not so
disclosed or that otherwise would be reasonably likely to have a Material Adverse Effect.
There are no such transactions, arrangements or other
relationships with the Company that may create contingencies or liabilities that are not
otherwise disclosed by the Company in the Companys Exchange Act filings.
4.29 Governmental Permits, Etc. Each of the Company and its Subsidiaries has all
franchises, licenses, certificates and other authorizations from such federal, state or local
government or governmental agency, department or body that are currently required for the
operation of the business of the Company and its Subsidiaries as currently conducted, except
where the failure to possess currently such franchises, licenses, certificates and other
authorizations is not reasonably expected to have a Material Adverse Effect. The Company and
its Subsidiaries have not received any notice of proceedings relating to the revocation or
modification of any such permit which, if the subject of an unfavorable decision, ruling or
finding, could reasonably be expected to have a Material Adverse Effect.
A- 13
4.30 Financial Statements. The consolidated financial statements of the Company and the
related notes contained in the Companys last quarterly report on Form 10-QSB present fairly,
in accordance with generally accepted accounting principles, the consolidated financial
position of the Company and its Subsidiaries as of the dates indicated, and the results of
their operations, cash flows and the changes in stockholders equity for the periods therein
specified, subject, in the case of unaudited financial statements for interim periods, to
normal year-end audit adjustments. Such consolidated financial statements (including the
related notes) have been prepared in accordance with generally accepted accounting principles
applied on a consistent basis throughout the periods therein specified, except that unaudited
financial statements may not contain all footnotes required by generally accepted accounting
principles.
4.31 Intentionally deleted.
4.32 Sarbanes-Oxley Act. The Company is, and at each Closing Date will be, in compliance
in all material respects with all provisions of the Sarbanes-Oxley Act of 2002 which are
applicable to it. The Company maintains a system of internal accounting controls that the
Company reasonably believes are sufficient to provide reasonable assurance that (i)
transactions are executed in accordance with managements general or specific authorization;
and (ii) transactions are recorded as necessary to permit preparation of financial statements
in conformity with generally accepted accounting principles and to maintain accountability for
assets.
4.33 Listing. The Company has not, in the two years preceding the date hereof, received
any notice (written or oral) from the American Stock Exchange, any stock exchange, market or
trading facility on which the Common Stock is or has been listed (or on which it has been
quoted) to the effect that the Company is not in compliance with the listing or maintenance
requirements of such exchange, market or trading facility. The Company shall comply with all
requirements of the American Stock Exchange with respect to the issuance of the Securities and
shall use its best efforts to have the Securities listed on the American Stock Exchange prior
to applicable Closing Date.
4.34 Foreign Corrupt Practices. Neither the Company, nor any of its Subsidiaries, nor, to
the knowledge of the Company, any director, officer, agent, employee or other person acting on
behalf of the Company or any of its Subsidiaries has, in the course of its actions for, or on
behalf of, the Company (i) used any corporate funds for any unlawful contribution, gift,
entertainment or other unlawful expenses relating to political activity; (ii) made any direct
or indirect unlawful payment to any foreign or domestic government official or employee from
corporate funds; (iii) violated or is in violation of any provision of the U.S. Foreign
Corrupt Practices Act of 1977, as amended; or (iv) made any unlawful bribe, rebate, payoff,
influence payment, kickback or other unlawful payment to any foreign or domestic government
official or employee.
4.35 Employee Relations. Neither the Company nor any of its Subsidiaries is a party to any
collective bargaining agreement or employs any member of a union. No executive officer of the
Company (as defined in Rule 501(f) of the Securities Act) has notified the Company that such
officer intends to leave the Company or otherwise terminate such officers employment with the
Company. No executive officer of the Company, to the knowledge of the
A- 14
Company, is, or is now
expected to be, in violation of any material term of any employment contract, confidentiality,
disclosure or proprietary information agreement, non-competition agreement, or any other
contract or agreement or any restrictive covenant, and the continued employment of each such
executive officer does not subject the Company or any of its Subsidiaries to any liability
with respect to any of the foregoing matters.
4.36 ERISA. The Company is in compliance, in all material respects, with all presently
applicable provisions of the Employee Retirement Income Security Act of 1974, as amended,
including the regulations and published interpretations thereunder (ERISA); no reportable
event (as defined in ERISA) has occurred with respect to any pension plan (as defined in
ERISA) for which the Company would have any liability; the Company has not incurred and does
not expect to incur liability under (i) Title (IV) of ERISA with respect to termination of, or
withdrawal from, any pension plan or (ii) Sections 412 or 4917 of the Internal Revenue Code
of 1986, as amended, including the regulations and published interpretations thereunder (the
Code); and each pension plan for which the Company would have any liability that is
intended to be qualified under Section 401(a) of the Code is so qualified in all material
respects and nothing has occurred, whether by action or by failure to act, which, in each
case, would cause the loss of such qualification, except as would not reasonably be expected
to have a Material Adverse Effect.
4.37 Environmental Matters. There has been no storage, disposal, generation, manufacture,
transportation, handling or treatment of toxic wastes, hazardous wastes or hazardous
substances by the Company or to its knowledge, any of its Subsidiaries (or, to the knowledge
of the Company, any of their predecessors in interest) at, upon or from any of the property
now or previously owned or leased by the Company or any of its Subsidiaries in violation of
any applicable law, ordinance, rule, regulation, order, judgment, decree or permit or which
would require remedial action under any applicable law, ordinance, rule, regulation, order,
judgment, decree or permit; there has been no material spill, discharge, leak, emission,
injection, escape, dumping or release of any kind
into such property or into the environment surrounding such property of any toxic wastes,
medical wastes, solid wastes, hazardous wastes or hazardous substances due to or caused by
the Company or any of its Subsidiaries or with respect to which the Company or any of its
Subsidiaries have knowledge; the terms hazardous wastes, toxic wastes, hazardous
substances, and medical wastes shall have the meanings specified in any applicable local,
state, federal and foreign laws or regulations with respect to environmental protection.
4.38 Removal of Legend. The legend set forth in Section 5(f) shall be removed from the
certificates evidencing the Securities (i) following any sale of such Securities pursuant to Rule
144 or at the written request of a Purchaser after the Registration Statement has been declared
effective, (ii) if such Securities are eligible for sale under Rule 144(k) (and the holder of such
Securities has submitted a written request for removal of the legend indicating that the holder has
complied with the applicable provisions of Rule 144 or such judicial interpretation or
pronouncement), or (iii) if such legend is not required under applicable requirements of the
Securities Act (including judicial interpretations and pronouncements issued by the Staff of the
Commission) and the holder of such Securities has submitted a written request for removal of the
legend indicating that such legend is not required under applicable requirements of the Securities
Act (including such judicial interpretations and pronouncements
issued by the Staff of the
A- 15
Commission). The Company shall cause its counsel to issue a legal opinion to the Companys
transfer agent promptly upon the occurrence of any of the events in clauses (i), (ii) or (iii)
above to effect the removal of the legend on certificates evidencing the Securities and shall also
cause its counsel to issue a blanket legal opinion to the Companys transfer agent promptly after
the effective date of any registration statement covering the resale of the Securities, if required
by the Companys transfer agent, to allow sales without restriction pursuant to an effective
registration statement. The Company agrees that at such time as such legend is no longer required
under this Section 4.38, it will, no later than five (5) business days (or three (3) business days
in the event the Purchaser needs to deliver unlegended certificates in connection with settlement
of a sale of Securities and such Purchaser has communicated such settlement date in writing to the
Company) following the delivery by the Purchaser to the Company or the Companys transfer agent of
a certificate representing the Securities issued with a restrictive legend, deliver or cause to be
delivered to such Purchaser a certificate representing such Securities that is free from all
restrictive and other legends; provided that in the case of removal of the legend for reasons set
forth in clause (ii) above, the holder of such Securities has submitted a written request for
removal of the legend indicating that the holder has complied with the applicable provisions of
Rule 144. The Company may not make any notation on its records or give instructions to any
transfer agent of the Company that enlarge the restrictions on transfer set forth in this Section
4.38.
SECTION 5. Representations, Warranties and Covenants of the Purchaser. (a) The
Purchaser represents and warrants to, and covenants with, the Company that: (i) the Purchaser is
knowledgeable, sophisticated and experienced in making, and is qualified to make, decisions with
respect to investments in shares representing an investment decision like that involved in the
purchase of the Securities, including investments in securities issued by the Company and
comparable entities, and has had the opportunity to request, receive, review and consider all
information it deems relevant in making an informed decision to purchase the Securities; (ii) the
Purchaser is acquiring the number of Securities set forth on the signature page hereto in the
ordinary course of its business and for its own account for investment only and with no
present intention of distributing any of the Securities or any arrangement or understanding with
any other persons regarding the distribution of any of the Securities (this representation and
warranty notwithstanding, such Purchaser does not agree to hold any of the Securities for any
minimum or other specific term and this representation and warranty does not limit the Purchasers
right to sell pursuant to the Registration Statement or in compliance with the Securities Act and
the Rules and Regulations, or, other than with respect to any claims arising out of a breach of
this representation and warranty, the Purchasers right to indemnification under Section 7.3);
(iii) the Purchaser will not, directly or indirectly, offer, sell, pledge, transfer or otherwise
dispose of (or solicit any offers to buy, purchase or otherwise acquire or take a pledge of) any of
the Securities except in compliance with the Securities Act and the Rules and Regulations and any
applicable state securities laws, nor has the Purchaser, during the last thirty (30) days prior to
the date of this Agreement, directly or indirectly, effected or agreed to effect any transactions
in the securities of the Company, including any short sale, whether or not against the box,
established any put equivalent position (as defined in Rule 16a-1(h) under the Exchange Act) with
respect to the Common Stock, granted any other right (including, without limitation, any put or
call option) with respect to the Common Stock or with respect to any security that includes,
relates to or derived any significant part of its value from the Common Stock or otherwise sought
to hedge its position in the Securities (each, a Prohibited Transaction), and such Purchaser
shall not
A- 16
engage, directly or indirectly, in a Prohibited Transaction during the period from the
date of this Agreement until such time as (A) the transactions contemplated by this Agreement are
first publicly announced or (B) this Agreement is terminated pursuant to Section 21 hereof; (iv)
the Purchaser has completed or caused to be completed the Registration Statement Questionnaire
attached hereto as part of Appendix II, for use in preparation of the Registration Statement, and
the answers thereto are true and correct as of the date hereof and will be true and correct as of
the effective date of the Registration Statement and the Purchaser will notify the Company
immediately of any material change in any such information provided in the Registration Statement
Questionnaire until such time as the Purchaser has sold all of the Securities or until the Company
is no longer required to keep the Registration Statement effective; (v) the Purchaser has, in
connection with its decision to purchase the number of shares of Common Stock and Warrants set
forth on the signature page hereto, relied solely upon the Company Documents as filed with the
Commission and the documents included therein or incorporated by reference and the representations
and warranties of the Company contained herein; (vi) the Purchaser has had an opportunity to
discuss this investment with representatives of the Company and ask questions of them; (vii) the
Purchaser is an accredited investor within the meaning of Rule 501(a) of Regulation D promulgated
under the Securities Act ; and (viii) the Purchaser agrees to notify the Company immediately of any
change in any of the foregoing information until such time as the Purchaser has sold all of the
Securities or the Company is no longer required to keep the Registration Statement effective.
(b) The Purchaser understands that the Securities are being offered and sold to it in reliance
upon specific exemptions from the registration requirements of the Securities Act, the Rules
and Regulations and state securities laws and that the Company is relying upon the truth and
accuracy of, and the Purchasers compliance with, the representations, warranties, agreements,
acknowledgments and understandings of the Purchaser set forth herein in order to determine the
availability of such exemptions and the eligibility of the Purchaser to acquire the
Securities.
(c) For the benefit of the Company, the Purchaser previously agreed orally with the Placement
Agent to keep confidential all information concerning the private placement of the Securities
to the Purchaser. The Purchaser understands that the existence and nature of all
conversations and presentations, if any, regarding the Company and this offering must be kept
strictly confidential. The Purchaser understands that the federal securities laws impose
restrictions on trading based on information regarding the offering of the Securities to the
Purchaser. In addition, the Purchaser hereby acknowledges that unauthorized disclosure of
information regarding the offering of the Securities to the Purchaser may result in a
violation of Regulation FD. This obligation will terminate upon submission by the Company of
the 8-K Filing. In addition to the above, the Purchaser shall maintain in confidence the
receipt and content of any notice of a Suspension (as defined in Section 5(h) below). The
foregoing agreements shall not apply to any information that is or becomes publicly available
through no fault of the Purchaser, or that the Purchaser is legally required to disclose;
provided, however, that if the Purchaser is requested or ordered to disclose any such
information pursuant to any court or other government order or any other applicable legal
procedure, it shall provide the Company with prompt notice of any such request or order in
time sufficient to enable the Company to seek (at its own expense) an appropriate protective
order.
A- 17
(d) The Purchaser understands that its investment in the Securities involves a significant degree
of risk, including a risk of total loss of the Purchasers investment, and the Purchaser has
full cognizance of and understands all of the risk factors related to the Purchasers purchase
of the Securities. The Purchaser understands that the market price of the Common Stock can be
volatile and that no representation is being made as to the future value of the Common Stock.
The Purchaser has the knowledge and experience in financial and business matters as to be
capable of evaluating the merits and risks of an investment in the Securities and has the
ability to bear the economic risks of an investment in the Securities.
(e) The Purchaser understands that no United States federal or state agency or any other
government or governmental agency has passed upon or made any recommendation or endorsement of
the Securities.
(f) The Purchaser understands that, until such time as the Registration Statement has been
declared effective or the Securities may be sold pursuant to Rule 144 under the Securities Act
without any restriction as to the number of securities as of a particular date that can then
be immediately sold, the Securities will bear a restrictive legend in substantially the
following form:
The Securities evidenced by this certificate have not been
registered under the Securities Act of 1933, as amended (the
Securities Act), or the securities laws of any state or other
jurisdiction. The Securities may not be offered, sold, pledged or
otherwise transferred except (1) pursuant to an exemption from
registration under the Securities Act or (2) pursuant to an
effective registration statement under the Securities Act, in each
case in accordance with all applicable securities laws of the states
and other jurisdictions, and in the case of a transaction exempt from
registration, unless the Company has received an opinion of counsel
reasonably satisfactory to it that such transaction does not require
registration under the Securities Act and such other applicable
laws.
(g) The Purchasers principal executive offices are in the jurisdiction set forth immediately
below the Purchasers name on the signature pages hereto.
(h) The Purchaser hereby covenants with the Company not to make any sale of the Securities under
the Registration Statement without complying with the provisions of this Agreement and without
effectively causing the prospectus delivery requirement under the Securities Act to be
satisfied to the extent applicable, and the Purchaser acknowledges and agrees that the
Securities are not transferable on the books of the Company in connection with any sale under
the Registration Statement unless the certificate submitted to the transfer agent evidencing
the Securities is accompanied by a separate Purchasers Certificate of Subsequent Sale
delivered by the Purchaser: (i) in the form of Appendix III hereto, (ii) executed by an
officer of, or other authorized person designated by, the Purchaser, and (iii) to the effect
that (A) the Securities have been sold in accordance with the Registration Statement, the
Securities Act and any applicable state securities or blue sky laws and (B) the requirement of
A- 18
delivering a current prospectus has been satisfied, to the extent applicable. Purchaser will
notify the Company promptly after the sale of all of the Securities. Purchaser acknowledges
that there may occasionally be times when the Company, in the good faith determination of its
Board of Directors, but if not practical under the circumstances in the good faith
determination of the Companys executive officers, must suspend the use of the Prospectus
forming a part of the Registration Statement (a Suspension) until such time as an amendment
to the Registration Statement has been filed by the Company and declared effective by the
Commission, or until such time as the Company has filed an appropriate report with the
Commission pursuant to the Exchange Act. The Purchaser hereby covenants that it will not sell
any of the Securities pursuant to said Prospectus during the period commencing at the time at
which the Company gives the Purchaser written notice of the Suspension of the use of said
Prospectus and ending at the time the Company gives the Purchaser written notice that the
Purchaser may thereafter effect sales pursuant to said Prospectus. Notwithstanding the
foregoing, the Company agrees that no Suspension shall be for a period of longer than 60
consecutive days, and no Suspension shall be for a period of an aggregate in any 365-day
period of longer than 90 days.
(i) The Purchaser further represents and warrants to, and covenants with, the Company that (i)
the Purchaser has full right, power, authority and capacity to enter into this Agreement and
to consummate the transactions contemplated hereby and has taken all necessary action to
authorize the execution, delivery and performance of this Agreement, (ii) the making and
performance of this Agreement by the Purchaser and the consummation of the transactions herein
contemplated will not violate any provision of the organizational documents of the Purchaser
or conflict with, result in the breach or violation of, or constitute, either by itself or
upon notice or the passage of time or both, a default under any material agreement, mortgage,
deed of trust, lease, franchise, license, indenture,
permit or other instrument to which the Purchaser is a party, or any statute or any
authorization, judgment, decree, order, rule or regulation of any court or any regulatory
body, administrative agency or other governmental body applicable to the Purchaser, (iii) no
consent, approval, authorization or other order of any court, regulatory body,
administrative agency or other governmental body is required on the part of the Purchaser
for the execution and delivery of this Agreement or the consummation of the transactions
contemplated by this Agreement, (iv) upon the execution and delivery of this Agreement, this
Agreement shall constitute a legal, valid and binding obligation of the Purchaser,
enforceable in accordance with its terms, except as enforceability may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting
creditors and contracting parties rights generally and except as enforceability may be
subject to general principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law) and except to the extent enforcement of the
indemnification provisions, set forth in Section 7.3 of this Agreement, may be limited by
federal or state securities laws or the public policy underlying such laws, and (v) there is
not in effect any order enjoining or restraining the Purchaser from entering into or
engaging in any of the transactions contemplated by this Agreement.
SECTION 6. Survival of Representations, Warranties and Agreements. Notwithstanding
any investigation made by any party to this Agreement or by the Placement Agent, all covenants,
agreements, representations and warranties made by the Company and the Purchaser herein and in the
certificates for the Securities delivered pursuant hereto shall survive
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the execution of this
Agreement, the delivery to the Purchaser of the Securities being purchased and the payment
therefore.
SECTION 7. Registration of the Securities; Compliance with the Securities Act.
7.1 Registration Procedures and Expenses. The Company shall:
(a) as soon as reasonably practicable, but in no event later than five (5) days following the
Second Closing Date, or if the Second Closing shall not have taken place, within 45 days after
the Initial Closing Date, then in no event later than 45 days after the Initial Closing Date
(such date, Filing Date), prepare and file with the Commission the Registration Statement on
Form S-3 relating to the sale of the Securities by the Purchaser, as well as any shares of
Common Stock issued or issuable upon any stock split, dividend or other distribution,
recapitalization or other similar event with respect to the Securities (such shares together
with the Securities are collectively referred to as, the Shares) from time to time on the
American Stock Exchange, or the facilities of any national securities exchange on which the
Common Stock is then traded or in privately-negotiated transactions (the parties acknowledge
that the Company may choose to include the Shares on a registration statement with other
similar securities issued by the Company);
(b) use its best efforts, subject to receipt of necessary information from the Purchaser, to
cause the Commission to declare the Registration Statement effective within 45 days after the
Filing Date (such date, the Required Effective Date). However, so long as the Company filed
the Registration Statement by the Filing Date, if the Registration
Statement receives Commission review, then the Required Effective Date will be the
seventy-fifth (75th) calendar day after the Filing Date;
(c) use its best efforts to promptly prepare and file with the Commission such amendments and
supplements to the Registration Statement and the prospectus used in connection therewith as
may be necessary to keep the Registration Statement effective until the earliest of (i) two
years after the effective date of the Registration Statement, or (ii) such time as the Shares
become eligible for resale by non-affiliates pursuant to Rule 144(k) under the Securities Act
of 1933, as amended;
(d) promptly furnish to the Purchaser with respect to the Shares registered under the
Registration Statement (and to each underwriter, if any, of such Shares) such number of copies
of prospectuses and such other documents as the Purchaser may reasonably request, in order to
facilitate the public sale or other disposition of all or any of the Shares by the Purchaser;
(e) file documents required of the Company for normal Blue Sky clearance in states specified in
writing by the Purchaser; provided, however, that the Company shall not be
required to qualify to do business or consent to service of process in any jurisdiction in
which it is not now so qualified or has not so consented;
(f) bear all expenses in connection with the procedures in paragraphs (a) through (e) of this
Section 7.1 and the registration of the Shares pursuant to the Registration
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Statement, other than fees and expenses, if any, of counsel or other advisers to the Purchaser or underwriting
discounts, brokerage fees and commissions incurred by the Purchaser, if any;
(g) file a Form D with respect to the Securities as required under Regulation D and to provide a
copy thereof to the Purchaser promptly after filing;
(h) issue a press release describing the transactions contemplated by this Agreement on each of
the Closing Dates;
(i) make available, while the Registration Statement is effective and available for resale, its
Chief Executive Officer, Chief Financial Officer, and Chief Administrative Officer for
questions regarding information which the Purchaser may reasonably request in order to fulfill
any due diligence obligation on its part; and
(j) promptly provide to the Purchaser notice of (i) effectiveness of the Registration Statement,
(ii) any Suspension, or (iii) the issuance of any stop order with respect to the Registration
Statement.
The Company understands that the Purchaser disclaims being an underwriter, but the Purchaser
being deemed an underwriter shall not relieve the Company of any obligations it has hereunder. A
questionnaire related to the Registration Statement to be completed by the Purchaser is attached
hereto as Appendix II.
7.2 Transfer of Securities After Registration. The Purchaser agrees that it will not
effect any disposition of the Securities or its right to purchase the Securities that would
constitute a sale within the meaning of the Securities Act or any applicable state securities
laws, except as contemplated in the Registration Statement referred to in Section 7.1 or as
otherwise permitted by law, and that it will promptly notify the Company of any changes in the
information set forth in the Registration Statement regarding the Purchaser or its plan of
distribution. Notwithstanding anything contained in this Agreement to the contrary, it is
expressly understood and agreed that (i) the number of Shares set forth in the Registration
Statement shall decrease by virtue of sales of the Shares by the Purchaser, (ii) the Purchaser
shall have no obligation to inform the Company of such sales or any changes to the number of
Shares set forth in the Registration Statement, the Prospectus or any supplement or update to
either of them and (iii) the Purchaser shall have no liability whatsoever for failing to
inform the Company of any such sales or changes to the number of Shares set forth in the
Registration Statement, the Prospectus or any supplement or update to either of them;
provided, however, that if the Company notifies the Purchaser of its intent to amend the
Registration Statement, and the Company shall request from the Purchaser in such notice an
update to the information in the Registration Statement, the Purchaser shall provide to the
Company any changes to the information set forth in the Registration Statement.
7.3 Indemnification. For the purpose of this Section 7.3:
(i) the term Purchaser/Affiliate shall mean any affiliate of
the Purchaser, including a transferee who is an affiliate of
the Purchaser, and any person who controls the Purchaser or any
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affiliate of the Purchaser within the meaning of Section 15 of
the Securities Act or Section 20 of the Exchange Act; and
(ii) the term Registration Statement shall include any
preliminary prospectus, final prospectus, exhibit, supplement
or amendment included in or relating to, and any document
incorporated by reference in, the Registration Statement
referred to in Section 7.1.
(a) The Company agrees to indemnify and hold harmless the Purchaser and each Purchaser/Affiliate
against any losses, claims, damages, liabilities or expenses, joint or several, to which the
Purchaser or any Purchaser/Affiliate may become subject, under the Securities Act, the
Exchange Act, or any other federal or state statutory law or regulation, or at common law or
otherwise (including in settlement of any litigation, if such settlement is effected with the
prior written consent of the Company), insofar as such losses, claims, damages, liabilities or
expenses (or actions in respect thereof as contemplated below) arise out of or are based upon
any untrue statement or alleged untrue statement of any material fact contained in the
Registration Statement, including the Prospectus, financial statements and schedules, and all
other documents filed as a part thereof, as amended at the time of effectiveness of the
Registration Statement, including any information deemed to be a part thereof as of the time
of effectiveness pursuant to paragraph (b) of Rule 430A, or pursuant to Rule 434, of the Rules
and Regulations, or the
Prospectus, in the form first filed with the Commission pursuant to Rule 424(b) of the
Regulations, or filed as part of the Registration Statement at the time of effectiveness if
no Rule 424(b) filing is required, or any amendment or supplement thereto, or arise out of
or are based upon the omission or alleged omission to state in any of them a material fact
required to be stated therein or necessary to make the statements in any of them, in light
of the circumstances under which they were made, not misleading, or arise out of or are
based in whole or in part on any inaccuracy in the representations or warranties of the
Company contained in this Agreement, or any failure of the Company to perform its
obligations hereunder or under law, and will promptly reimburse the Purchaser and each
Purchaser/Affiliate for any legal and other expenses as such expenses are reasonably
incurred by the Purchaser or any Purchaser/Affiliate in connection with investigating,
defending or preparing to defend, settling, compromising or paying any such loss, claim,
damage, liability, expense or action; provided, however, that the Company
will not be liable in any such case to the extent, but only to the extent, that any such
loss, claim, damage, liability or expense arises out of or is based upon (i) an untrue
statement or alleged untrue statement or omission or alleged omission made in the
Registration Statement, the Prospectus or any amendment or supplement thereto in reliance
upon and in conformity with written information furnished to the Company by or on behalf of
the Purchaser expressly for use therein, or (ii) the failure of the Purchaser to comply with
the covenants and agreements contained in Sections 5 or 7.2, or (iii) the inaccuracy of any
representation or warranty made by the Purchaser herein or (iv) any statement or omission in
any Prospectus that is corrected in any subsequent Prospectus that was delivered to the
Purchaser prior to the pertinent sale or sales by the Purchaser.
(b) The Purchaser will severally indemnify and hold harmless the Company, each of its directors,
each of its executive officers, including such officers who signed the Registration Statement,
and each person, if any, who controls the Company within the
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meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act in an amount not to exceed in the aggregate
for all indemnification obligations arising pursuant to Section 7.3(b) the net proceeds
received by the Purchaser from sales of Shares under the Registration Statement, against any
losses, claims, damages, liabilities or expenses to which the Company, each of its directors,
each of its officers who signed the Registration Statement or controlling person may become
subject, under the Securities Act, the Exchange Act, or any other federal or state statutory
law or regulation, or at common law or otherwise (including in settlement of any litigation,
if such settlement is effected with the written consent of the Purchaser) insofar as such
losses, claims, damages, liabilities or expenses (or actions in respect thereof as
contemplated below) arise out of or are based upon (i) any failure of the Purchaser to comply
with its covenants and agreements contained in Sections 5 or 7.2 hereof, or (ii) any untrue or
alleged untrue statement of any material fact contained in the Registration Statement, the
Prospectus, or any amendment or supplement thereto, or arise out of or are based upon the
omission or alleged omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, in each case to the extent, but only
to the extent, that such untrue statement or alleged untrue statement or omission or alleged
omission was made in the Registration Statement, the Prospectus, or any amendment or
supplement thereto, in reliance upon and in conformity with written information furnished to
the Company by or on behalf of the Purchaser expressly for use therein, and will reimburse
the Company, each of its directors, each of its officers who signed the Registration
Statement or controlling person for any legal and other expense reasonably incurred by the
Company, each of its directors, each of its officers who signed the Registration Statement
or controlling person in connection with investigating, defending, settling, compromising or
paying any such loss, claim, damage, liability, expense or action.
(c) Promptly after receipt by an indemnified party under this Section 7.3 of notice of the threat
or commencement of any action, such indemnified party will, if a claim in respect thereof is
to be made against an indemnifying party under this Section 7.3, promptly notify the
indemnifying party in writing thereof; but the omission so to notify the indemnifying party
will not relieve it from any liability which it may have to any indemnified party for
contribution or otherwise under the indemnity agreement contained in this Section 7.3 to the
extent it is not prejudiced as a result of such failure. In case any such action is brought
against any indemnified party and such indemnified party seeks or intends to seek indemnity
from an indemnifying party, the indemnifying party will be entitled to participate in, and, to
the extent that it may wish, jointly with all other indemnifying parties similarly notified,
to assume the defense thereof with counsel reasonably satisfactory to such indemnified party;
provided, however, if the defendants in any such action include both the
indemnified party and the indemnifying party and the indemnified party shall have reasonably
concluded, based on an opinion of counsel reasonably satisfactory to the indemnifying party,
that there may be a conflict of interest between the positions of the indemnifying party and
the indemnified party in conducting the defense of any such action or that there may be legal
defenses available to it and/or other indemnified parties which are different from or
additional to those available to the indemnifying party, the indemnified party or parties
shall have the right to select separate counsel to assume such legal defenses and to otherwise
participate in the defense of such action on behalf of such indemnified party or parties.
Upon receipt of notice from the indemnifying party to such indemnified party of its election
to assume the defense of such action and approval by the indemnified party of counsel, the
indemnifying party will not be liable to such
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indemnified party under this Section 7.3 for any
legal or other expenses subsequently incurred by such indemnified party in connection with the
defense thereof unless (i) the indemnified party shall have employed such counsel in
connection with the assumption of legal defenses in accordance with the proviso to the
preceding sentence (it being understood, however, that the indemnifying party shall not be
liable for the expenses of more than one separate counsel, reasonably satisfactory to such
indemnifying party, representing all of the indemnified parties who are parties to such
action) or (ii) the indemnifying party shall not have employed counsel reasonably satisfactory
to the indemnified party to represent the indemnified party within a reasonable time after
notice of commencement of action, in each of which cases the reasonable fees and expenses of
counsel shall be at the expense of the indemnifying party. In no event shall any indemnifying
party be liable in respect of any amounts paid in settlement of any action unless the
indemnifying party shall have approved in writing the terms of such settlement;
provided that such consent shall not be unreasonably withheld. No indemnifying party
shall, without the prior written consent of the indemnified party, effect any settlement of
any pending or threatened proceeding in respect of which any indemnified party is or could
have been a party and indemnification
could have been sought hereunder by such indemnified party from all liability on claims that
are the subject matter of such proceeding.
(d) If the indemnification provided for in this Section 7.3 is required by its terms but is for
any reason held to be unavailable to or otherwise insufficient to hold harmless an indemnified
party under paragraphs (a), (b) or (c) of this Section 7.3 in respect to any losses, claims,
damages, liabilities or expenses referred to herein, then each applicable indemnifying party
shall contribute to the amount paid or payable by such indemnified party as a result of any
losses, claims, damages, liabilities or expenses referred to herein (i) in such proportion as
is appropriate to reflect the relative benefits received by the Company and the Purchaser from
the private placement of the Securities to the Purchaser hereunder or (ii) if the allocation
provided by clause (i) above is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause (i) above but the
relative fault of the Company and the Purchaser in connection with the statements or omissions
or inaccuracies in the representations and warranties in this Agreement and/or the
Registration Statement which resulted in such losses, claims, damages, liabilities or
expenses, as well as any other relevant equitable considerations; provided, however, that the
Purchaser shall only be required to contribute an amount up to the net proceeds received by
the Purchaser from sales of the Shares under the Registration Statement. The respective
relative benefits received by the Company on the one hand and the Purchaser on the other shall
be deemed to be in the same proportion as the amount paid by the Purchaser to the Company
pursuant to this Agreement for the Shares purchased by the Purchaser that were sold pursuant
to the Registration Statement bears to the difference (the Difference) between the amount
the Purchaser paid for the Shares that were sold pursuant to the Registration Statement and
the amount received by the Purchaser from such sale. The relative fault of the Company, on
the one hand, and the Purchaser on the other shall be determined by reference to, among other
things, whether the untrue or alleged statement of a material fact or the omission or alleged
omission to state a material fact or the inaccurate or the alleged inaccurate representation
and/or warranty relates to information supplied by the Company or by the Purchaser and the
parties relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission. The amount paid or payable by a party as a result of the
losses, claims, damages, liabilities and expenses referred to above shall be deemed to
include, subject to the limitations set forth in paragraph (c) of this Section 7.3, any legal
or other fees or expenses reasonably incurred by such party in connection with investigating
or defending any action or claim. The provisions set forth in paragraph (c)
A- 24
of this Section
7.3 with respect to the notice of the threat or commencement of any threat or action shall
apply if a claim for contribution is to be made under this paragraph (d);
provided, however, that no additional notice shall be required with respect to
any threat or action for which notice has been given under paragraph (c) for purposes of
indemnification. The Company and the Purchaser agree that it would not be just and equitable
if contribution pursuant to this Section 7.3 were determined solely by pro rata allocation
(even if the Purchaser were treated as one entity for such purpose) or by any other method of
allocation which does not take account of the equitable considerations referred to in this
paragraph. Notwithstanding the provisions of this Section 7.3, the Purchaser shall not be
required to contribute any amount in excess of the amount by which the Difference exceeds the
amount of any damages that the
Purchaser has otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent misrepresentation. The
Purchasers obligation to contribute pursuant to this Section 7.3 is several and not joint.
7.4 Termination of Conditions and Obligations. The restrictions imposed by Section 5 or
this Section 7 upon the transferability of the Securities shall cease and terminate as to any
particular number of the Securities upon the passage of two years from the effective date of
the Registration Statement covering the Securities or at such time as an opinion of counsel
satisfactory in form and substance to the Company shall have been rendered to the effect that
such conditions are not necessary in order to comply with the Securities Act.
7.5 Information Available. So long as the Registration Statement is effective covering
the resale of the Shares owned by the Purchaser, the Company will furnish to the Purchaser:
(a) as soon as practicable after available (but in the case of the Annual Report to the
Stockholders, within 150 days after the end of each fiscal year of the Company), one copy of
(i) its Annual Report to Stockholders (which Annual Report shall contain financial statements
audited in accordance with generally accepted accounting principles by a national firm of
certified public accountants), (ii) if not included in substance in the Annual Report to
Stockholders, upon the request of Purchaser, its Annual Report on Form 10-K, (iii) upon
request of Purchaser, its quarterly reports on Form 10-Q, and (iv) a full copy of the
particular Registration Statement covering the Shares (the foregoing, in each case, excluding
exhibits);
(b) upon the reasonable request of the Purchaser, a reasonable number of copies of the
Prospectuses, and any supplements thereto, to supply to any other party requiring such
Prospectuses; and
(c) the Company, upon the reasonable request of the Purchaser and with prior notice, will be
available to the Purchaser or a representative thereof at the Companys headquarters to
discuss information relevant for disclosure in the Registration Statement covering the Shares
and will otherwise cooperate with the Purchaser conducting an investigation for the purpose of
reducing or eliminating the Purchasers exposure to liability under the
A- 25
Securities Act,
including the reasonable production of information at the Companys headquarters, subject to
appropriate confidentiality limitations.
7.6 Delay in Filing or Effectiveness of Registration Statement. If (i) the Registration
Statement is not filed by the Company with the Commission on or prior to the Filing Date, then
for each day following the Filing Date, until but excluding the date the Registration
Statement is filed, or (ii) the Registration Statement is not declared effective by the
Commission by the Required Effective Date, then for each day following the Required Effective
Date, until but excluding the date the Commission declares the Registration Statement
effective, in each case, the Company shall, for each such day, pay
the Purchaser with respect to any such failure, as partial damages and not as a penalty, an
amount equal to 0.0667% of the purchase price paid by the Purchaser for the Securities
pursuant to this Agreement; and for any such day, such payment shall be made no later than
the first business day of the calendar month next succeeding the month in which such day
occurs. If the Purchaser shall be prohibited from selling any of the Shares under the
Registration Statement as a result of a Suspension of more than thirty (30) days or
Suspensions on more than two (2) occasions of not more than thirty (30) days each in any
12-month period, then for each day on which a Suspension is in effect that exceeds the
maximum allowed period above for a Suspension or Suspensions, but not including any day on
which a Suspension is lifted, the Company shall pay the Purchaser, as partial damages and
not as a penalty, an amount equal to 0.0667% of the purchase price paid by the Purchaser for
the Securities purchased pursuant to this Agreement for each such day, and such payment
shall be made no later than the first business day of the calendar month next succeeding the
month in which such day occurs. For purposes of this Section 7.6, a Suspension shall be
deemed lifted on the date that notice that the Suspension has been lifted is delivered to
the Purchaser pursuant to Section 11 of this Agreement. Any payments made pursuant to this
Section 7.6. shall not constitute the Purchasers exclusive remedy for such events.
Notwithstanding the foregoing provisions, in no event shall the Company be obligated to pay
such partial damages to more than one person in respect of the same Securities for the same
period of time. Such payments shall be made to the Purchaser in cash.
SECTION 8. Certain Adjustments. (a) Subject to Section 8(c), except with respect to
the issuance of Excluded Securities (as such term is defined in the Warrant), if at any time on or
before the one year anniversary of the Second Closing (the Full Ratchet Period), the Company
shall issue or sell or agree to issue or sell any shares of Common Stock or Common Stock
Equivalents (as defined below) to any person or persons for a price per share (in each case, as
determined in accordance with Section 2.8 of the Warrant) less than the Strike Price (as defined
below) in effect immediately prior to the time of such issue or sale or agreement related thereto,
then and in each such case (a Trigger Issuance), the Company shall issue without the payment of
additional consideration, in connection with such Trigger Issuance, a number of additional shares
of Common Stock to the Purchaser equal to difference of: (A) the number of shares of Common Stock
that would have been issued to such Purchaser, based on such Purchasers purchase price of Common
Stock at the Initial Closing (i.e., $5.25 per share), if the Strike Price in effect immediately
prior to such Trigger Issuance was equal to the Strike Price in effect immediately after such
Trigger Issuance; minus (B) the number of shares of Common Stock initially issued to such
Purchaser upon payment of its purchase price (and, to the extent there has been a previous
adjustment to the price per share, any Anti-Dilution Shares previously issued to such Purchaser).
A- 26
(b) Subject to Section 8(c), except with respect to the issuance of Excluded Securities, if at
any time after the Full Ratchet Period, the Company shall effect a Trigger Issuance, the Company
shall issue without the payment of additional consideration, in connection with such Trigger
Issuance, a number of additional shares of Common Stock to the Purchaser equal to the difference
of: (A) the number of shares of Common Stock that would have been issued to such Purchaser at each
Closing that occurred under this Agreement, if the price per share for such Purchaser was equal to
the product of the Strike Price in effect immediately
prior to such Trigger Issuance multiplied by a fraction, the numerator of which shall be the
number of shares of Common Stock outstanding immediately prior to such Trigger Issuance plus the
number of shares of Common Stock which the aggregate consideration received by the Company for the
total number of additional shares of Common Stock so issued in the Trigger Issuance would purchase
at the purchase price paid by the Purchaser at the Initial Closing (i.e., $5.25), and the
denominator of which shall be the number of shares of Common Stock outstanding immediately prior to
such Trigger Issuance plus the number of such additional shares of Common Stock so issued;
minus (B) the number of shares of Common Stock initially issued to such Purchaser upon
payment of its purchase price (and, to the extent there has been a previous adjustment to the price
per share, any Anti-Dilution Shares previously issued to such Purchaser).
(c) The provisions of this Section 8(c) shall be applicable to Sections 8(a) and 8(b) and to
Section 9. The price per share at which the Company issues or sells or agrees to issue or sell
shares of Common Stock or Common Stock Equivalents shall be determined in accordance with the
provisions of Section 2.8 of the Warrant. For the avoidance of doubt, the issuance of Common Stock
Equivalents (and not the actual conversion or exercise of such Common Stock Equivalent into shares
of Common Stock) is the event that gives rise to the issuance of Anti-Dilution Shares pursuant to
this Section 8. Promptly following the occurrence of any event giving rise to the issuance of any
Anti-Dilution Shares (but in no event more than four (4) business days thereafter), the Company
shall issue irrevocable instructions authorizing its transfer agent to issue such Anti-Dilution
Shares to the Purchaser. Without further action or deed, automatically after each Trigger
Issuance, the Strike Price shall be reset to the per share price at which the Common Stock, or the
Common Stock underlying the Common Stock Equivalents, was issued in the Trigger Issuance; as
determined in accordance with the provisions of Section 2.8 of the Warrant. The Strike Price
shall initially be equal to $5.25, and shall be re-set from time to time in accordance with the
immediately preceding sentence upon each Trigger Issuance. Notwithstanding the foregoing, Sections
8(a) and 8(b) and Section 9 shall not apply to the issuance of Excluded Securities.
SECTION 9. Participation Right on Future Financings.
(a) Notice of Proposed Issuance. Except with respect to the issuance of Excluded
Securities or Common Stock and Common Stock Equivalents to Strategic Investors (as defined below)
of the Company, in the event that the Company proposes to issue any (i) shares of Common Stock,
(ii) warrants, options or other rights to purchase shares of Common Stock or (iii) any notes,
debentures or other securities convertible into or exercisable or exchangeable for shares of Common
Stock (collectively, the Common Stock Equivalents), the Company will deliver to the Purchaser a
written notice (the Offer Notice) prior to effecting any such issuance (the New Issuance),
offering to such Purchaser the right, for a period of ten (10)
A- 27
days, to purchase for cash at an
amount equal to the price or other consideration for which such Common Stock or Common Stock
Equivalents are to be issued, on a pro rata basis with all other purchasers of Securities at the
Initial Closing who then own such Securities (each, a Recipient), a number of shares of such
Common Stock or Common Stock Equivalents equal to the lesser of (i) the number of shares to be
issued in such New Issuance equal to the number of shares of Common Stock or Common Stock
Equivalents, as the case may be, that could be purchased for the aggregate purchase price paid at
the Initial Closing and the Second Closing,
and (ii) twenty percent (20.0%) of the number of shares of Common Stock or Common Stock
Equivalents, as the case may be, to be issued in such New Issuance. The Offer Notice shall describe
the securities proposed to be issued by the Company and specify the number, price and payment terms
in the New Issuance.
(b) Right to Purchase Common Stock or Common Stock Equivalents.
(i) The Purchaser may accept the Companys offer as to the full number of securities offered
to it in the Offer Notice or any lesser number, by written notice thereof (an Exercise Notice)
given by it to the Company prior to the expiration of the aforesaid 10-day period. A delivery of
an Exercise Notice (which notice shall specify the number (or amount) of Common Stock Equivalents
to be purchased by the Purchaser as permitted under this Section 9) shall constitute a binding
agreement of the holder to purchase, at the price and on the terms specified in the Offer Notice,
the number (or amount) of Common Stock or Common Stock Equivalents specified in the Purchasers
Exercise Notice. If at the termination of such 10-day period the Purchaser shall not have
exercised its rights to purchase Common Stock or Common Stock Equivalents pursuant to this Section
9, the Purchaser shall be deemed to have waived any and all of its rights under this Section 9 with
respect to that purchase of such Common Stock or Common Stock Equivalents (such waiver shall not
apply to any subsequently offered Common Stock or Common Stock Equivalents). Notwithstanding
anything in this Section 9 to the contrary, if, with respect to a given New Issuance, any other
Recipient elects not to exercise fully its rights or is deemed to have waived its rights, then the
Company shall provide the Purchaser and each other Recipient who exercised its rights with a second
Offer Notice, and the Purchaser and each other Recipient who exercised its rights may include in
its Exercise Notice for such New Issuance, upon delivery to the Company of an Exercise Notice
within five (5) business days after receipt by the Purchaser and each other Recipient of such
second Offer Notice, an additional number (or amount) of Common Stock or Common Stock Equivalents
equal to its pro rata share of the unexercised number (or amount) of Common Stock or Common Stock
Equivalents in such New Issuance.
(ii) The Company shall have ninety (90) days from the date of the Offer Notice to consummate
the proposed New Issuance at the price and upon substantially the same terms specified in the Offer
Notice, provided that, if such issuance is subject to regulatory and shareholder approval, such
ninety (90) day period shall be extended until the expiration of five (5) business days after all
such approvals have been received, but in no event later than one hundred eighty (180) days from
the date of the Offer Notice. At the consummation of such New Issuance, the Company shall issue
certificates representing the Common Stock or Common Stock Equivalents to be purchased by the
Purchaser registered in the name of such Purchaser, against payment by such Purchaser of the
purchase price for such Common Stock or Common Stock Equivalents specified in such Purchasers
Exercise Notice. If
A- 28
the Company proposed to issue any class of Common Stock or Common Stock Equivalents after
such time period above, it shall again comply with the procedures set forth in this Section 9.
(iii) The value of any non-cash consideration to be received by the Company in any New
Issuance shall be determined by the Board of Directors in good faith, and shall be specified in the
Offer Notice delivered in connection with any such New Issuance. If the Purchaser elects to
exercise its rights under this Section 9 in connection with any New Issuance in which there is any
such non-cash consideration, then, such Purchaser may elect in its Exercise Notice to tender, in
lieu of tendering any such non-cash consideration, an amount in cash equal to the reasonably
determined good faith value of such non-cash consideration.
(c) Expiration of Participation Right. The participation right granted pursuant to
this Section 9 shall expire on the two (2) year anniversary of the date of this Agreement.
For purposes of this Section 9, the term Strategic Investor means (i) any person that has been
resolved by a majority of a quorum of the Companys Board of Directors to constitute a
strategic investor on the basis of such persons (A) existing or prospective business
relationship with the Company and/or its subsidiaries; or (B) existing or anticipated ability to
further the business objectives of the Company and/or its subsidiaries; or (ii) a corporation,
partnership or other entity that has at the time of its initial investment in the Company (A) an
equity market capitalization in excess of $100 million or (B) assets in excess of $100 million.
SECTION 10. Brokers Fee. The Purchaser acknowledges that the Company intends to pay
to the Placement Agent a fee in respect of the sale of the Securities to the Purchaser. The
Purchaser and the Company hereby agree that the Purchaser shall not be responsible for such fee and
that the Company will indemnify and hold harmless the Purchaser and each Purchaser/Affiliate
against any losses, claims, damages, liabilities or expenses, joint or several, to which the
Purchaser or any Purchaser/Affiliate may become subject with respect to such fee. Each of the
parties hereto hereby represents that, on the basis of any actions and agreements by it, there are
no other brokers or finders entitled to compensation in connection with the sale of the Securities
to the Purchaser.
SECTION 11. Notices. All notices required or permitted hereunder shall be in writing
and shall be deemed effectively given: (i) upon delivery to the party to be notified; (ii) when
received by confirmed facsimile or (iii) one (1) business day after deposit with a nationally
recognized overnight carrier, specifying next business day delivery, with written verification of
receipt. All communications shall be sent to the Company and the Purchaser as follows or at such
other addresses as the Company or the Purchaser may designate upon ten (10) days advance written
notice to the other party:
A- 29
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(a)
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if to the Company, to: |
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Sunair Services Corporation. |
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3005 SW Third Avenue |
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Fort Lauderdale, Florida 33315 |
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Facsimile: (561) 955-7333 |
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Attention: |
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with a copy to: |
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Akerman Senterfitt |
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One Southeast Third Avenue, 28th Floor |
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Miami, Florida 33131 |
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Facsimile: (305) 374-5618 |
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Attention: Stephen K. Roddenberry |
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if to the Placement Agent, to: |
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Roth Capital Partners, LLC |
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11100 Santa Monica Blvd. |
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Suite 550 |
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Los Angeles, California 90025 |
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Facsimile: (310) 445-5864 |
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Attention: John Dalfonsi |
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with a copy to: |
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Lowenstein Sandler PC |
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1251 Avenue of the Americas |
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New York, New York 10020 |
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Facsimile: (973) 597-2507 |
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Attention: Steven E. Siesser |
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(c)
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if to the Purchaser, at its address as set forth at the end of this Agreement. |
SECTION 12. Changes. This Agreement may not be modified or amended except pursuant to
an instrument in writing signed by the Company and the Purchaser. No provision hereunder may be
waived other than in a written instrument executed by the waiving party.
SECTION 13. Headings. The headings of the various sections of this Agreement have been
inserted for convenience of reference only and shall not be deemed to be part of this Agreement.
SECTION 14. Severability. In case any provision contained in this Agreement should be
invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the
remaining provisions contained herein shall not in any way be affected or impaired thereby.
A- 30
SECTION 15. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York and the federal law of the United States of
America.
SECTION 16. Counterparts. This Agreement may be executed in two or more counterparts,
each of which shall constitute an original, but all of which, when taken together, shall constitute
but one instrument, and shall become effective when one or more counterparts have been signed by
each party hereto and delivered to the other parties. In the event that any signature is delivered
by facsimile transmission or by an e-mail which contains an electronic file of an executed
signature page, such signature shall create a valid and binding obligation of the party executing
(or on whose behalf such signature is executed) with the same force and effect as if such facsimile
or electronic file signature page (as the case may be) were an original thereof.
SECTION 17. Entire Agreement. This Agreement and the instruments referenced herein
contain the entire understanding of the parties with respect to the matters covered herein and
therein and, except as specifically set forth herein or therein, neither the Company nor the
Purchaser makes any representation, warranty, covenant or undertaking with respect to such matters.
SECTION 18. Assignment. Except as otherwise expressly provided herein, the provisions
hereof shall inure to the benefit of, and be binding upon, the parties hereto and their respective
permitted successors, assigns, heirs, executors and administrators. This Agreement and the rights
of the Purchaser hereunder may be assigned by the Purchaser with the prior written consent of the
Company, except such consent shall not be required in cases of assignments by an investment adviser
to a fund for which it is the adviser or by or among funds that are under common control, provided
that such assignee agrees to be bound by the terms of this Agreement.
SECTION 19. Further Assurances. Each party agrees to cooperate fully with the other
parties and to execute such further instruments, documents and agreements and to give such further
written assurance as may be reasonably requested by any other party to evidence and reflect the
transactions described herein and contemplated hereby and to carry into effect the intents and
purposes of this Agreement.
SECTION 20. Independent Nature of the Purchasers Obligations and Rights. The
obligations of the Purchaser under this Agreement are several and not joint with the obligations of
any other third party purchasers of the Companys securities, and the Purchaser shall not be
responsible in any way for the performance of the obligations of any other third party purchasers
of the Companys securities. Each of the Purchaser and the Company agree and acknowledge that (i)
the decision of the Purchaser to purchase the Securities pursuant to this Agreement has been made
by the Purchaser independently of any other third party purchasers of the Companys securities and
(ii) no other third party purchasers of the Companys securities have acted as agent for the
Purchaser in connection with the Purchaser making its investment hereunder and that no such other
third party purchasers will be acting as agent of the Purchaser in connection with monitoring its
investment hereunder or enforcing its rights under this Agreement. Nothing contained herein or in
any other document contemplated hereby or any agreement of any such other third party purchaser,
and no action taken by the Purchaser pursuant hereto or any other third party purchaser pursuant
thereto, shall be deemed to constitute the Purchaser or any such
A- 31
other third party purchasers as a partnership, an association, a joint venture or any other
kind of entity, or create a presumption that the Purchaser or any such other third party purchasers
are in any way acting in concert or as a group with respect to any matters. The Purchaser shall be
entitled to independently protect and enforce its rights, including, without limitation, the rights
arising out of this Agreement or out of any of the other documents contemplated hereby, and it
shall not be necessary for any such other third party purchasers to be joined as an additional
party in any proceeding for such purpose. To the extent that any such other third party purchasers
purchase the same or similar securities as the Purchaser hereunder or on the same or similar terms
and conditions or pursuant to the same or similar documents, all such matters are solely in the
control of the Company, not the action or decision of the Purchaser, and would be solely for the
convenience of the Company and not because it was required or requested to do so by the Purchaser
or any such other third party purchaser.
SECTION 21. Termination. Purchaser may terminate this Agreement without any
obligation or liability hereunder or otherwise if the Initial Closing does not occur within fifteen
(15) business days after the execution of this Agreement. After the Initial Closing, Purchaser may
also terminate this Agreement, but only with respect to the Second Closing and the Additional
Securities to be purchased by the Purchaser, without any obligation or liability hereunder or
otherwise if the Second Closing does not occur within forty-five (45) days after the Initial
Closing, and in such event all applicable sections and provisions of this Agreement shall survive
such termination.
A- 32
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their duly
authorized representatives as of the day and year first above written.
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SUNAIR SERVICES CORPORATION |
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By: |
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Name: |
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Title: |
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A- 33
[Investor Signature Page]
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Print or Type: |
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Name of Purchaser |
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(Individual or Institution): |
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Name of Individual representing |
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Purchaser (if an Institution): |
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Title of Individual representing |
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Purchaser (if an Institution): |
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Signature by: |
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Individual Purchaser or Individual |
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representing Purchaser: |
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Address: |
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Telephone: |
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Telecopier: |
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Number of |
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Securities to Be |
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Second Closing |
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Warrants |
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Warrants |
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A- 34
ANNEX B
FORM OF WARRANT
Warrant No.
The securities represented by this certificate have been acquired
directly or indirectly from the Issuer without being registered
under the Securities Act of 1933, as amended (the Securities Act),
or any other applicable securities laws, and are restricted
securities as that term is defined under Rule 144 promulgated under
the Securities Act. These securities may not be sold, pledged,
transferred, distributed or otherwise disposed of in any manner
(Transfer) unless they are registered under the Securities Act and
any other applicable securities laws, or unless the request for
Transfer is accompanied by a favorable opinion of counsel,
reasonably satisfactory to the Issuer, stating that the Transfer
will not result in a violation of the Securities Act or any other
applicable securities laws.
WARRANT
SUNAIR SERVICES CORPORATION
SUNAIR SERVICES CORPORATION (formerly known as Sunair Electronics, Inc.) (the
Issuer), a Florida corporation, with offices at 3005 SW 3rd Ave., Fort
Lauderdale, FL 33315-3312, for value received, hereby certifies as of , 2005 (the
Issuance Date) that , a (Investor),
with an address for notice purposes hereunder at ,
, or its registered assigns, is entitled to purchase from the Issuer up to
( ) (as further defined below, the Issuable Number) duly
authorized, validly issued, fully paid and non-assessable shares (subject to the adjustments
contained in this Warrant) of common stock, par value $0.10 per share (the Common Stock),
of the Issuer at the purchase price per share equal to Six Dollars and Thirty Cents ($6.30) (the
Exercise Price) at any time and from time to time on or after , 2006 which
date which is one hundred eighty (180) days from the Issuance Date (the Exercise Date)
and at or before 5:00 p.m., Fort Lauderdale, Florida time, on the fifth anniversary of the Issuance
Date (the Termination Date), all subject to the terms, conditions and adjustments set
forth below in this Warrant. Capitalized terms used herein are defined in Section 10 hereof or
elsewhere throughout this Warrant, or in that certain Purchase Agreement, dated as of
, 2005, by and between Issuer and Investor (the Purchase Agreement). For
purposes of this Warrant, the Issuable Number shall equal thirty-five percent (35%) of
the aggregate number of shares of Common Stock purchased by Investor at the Closing pursuant to the
Purchase Agreement at which this Warrant was issued.
B-1
1. Exercise of Warrant.
1.1 Manner of Exercise. This Warrant may be exercised by the holder of this Warrant
(the Holder) in whole or in part, at any time and from time to time on or after the Exercise
Date, by facsimile, mail or overnight courier delivery of a notice in substantially the form
attached to this Warrant (or a reasonable facsimile thereof) duly executed by such Holder (a
Warrant Exercise Notice). The closing of each exercise shall take place on (i) the third
(3rd) Business Day following, and excluding, the date the Warrant Exercise Notice is
delivered (the Warrant Notice Date), subject to the provisions of Section 1.4(b) hereof,
(ii) at the option of the Holder, such later date as the conditions set forth in Section 1.2 have
been waived or satisfied or (iii) any other date upon which the exercising Holder and the Issuer
mutually agree (each, a Warrant Closing Date).
(a) This Warrant may be exercised by the Holder hereof by paying cash to Issuer in the
amount equal to the product of (i) the number of shares of Common Stock for which the
Warrant is being exercised (without giving effect to any adjustment thereof) multiplied by
(ii) the Exercise Price.
(b) In lieu of payment of the Exercise Price in cash as set forth in Section 1.1(a),
the Holder hereof may exercise this Warrant by specifying in the Warrant Exercise Notice
that such Holder has elected to exercise this Warrant pursuant to a broker-assisted
exercise/sale procedure pursuant to which funds to pay for exercise of the Warrant are
delivered to the Issuer by a broker upon receipt of stock certificates from the Issuer
through a licensed broker reasonably acceptable to the Issuer whereby the stock certificate
or certificates for the shares of Common Stock for which the Warrant is exercised will be
delivered by the Issuer to such broker as the agent for the Holder exercising the Warrant
and the broker will deliver to the Issuer cash (or cash equivalents acceptable to the
Issuer) equal to the Exercise Price for the shares of Common Stock purchased pursuant to the
exercise of the Warrant. The Issuer shall allow the issuance and delivery to such broker of
the shares of Common Stock necessary to effect the sale of such shares by such broker and
apply the sales proceeds to pay the Exercise Price notwithstanding the fact that the Issuer
will not receive the cash proceeds until after the sale of the underlying shares of Common
Stock, subject, in the event the Holder is an officer or director of the Issuer, to
compliance with the applicable provisions of the Sarbanes-Oxley Act of 2002 with respect to
loans to officers and directors. Holder hereby expressly agrees to indemnify and to hold the
Issuer harmless for the full amount of any loss or damage (including all reasonable trial
attorneys and appellate attorneys fees including those which may be incurred in the
enforcement of this indemnity) Issuer may sustain as a result of such broker failing to
remit to Issuer the proceeds from the sale of such shares of Common Stock in accordance with
this Section 1.1(b).
1.2 Conditions to Closing. It shall be a condition of the exercising Holders
obligation to close on each Warrant Closing Date that each of the following is satisfied, unless
waived by such Holder:
(a) all shares to be issued upon such exercise shall be freely tradable Common Stock
under the Securities Act and shall be duly listed and admitted to trading on Nasdaq,
B-2
the New York Stock Exchange or the American Stock Exchange, depending on where such shares are traded at the time the Warrant is exercised (unless the Holder expressly consents
in writing to the issuance of unregistered Common Stock for a portion or all of the shares
to be issued upon such exercise in which case the Issuer shall issue such unregistered
Common Stock upon such request).
(b) As of such Warrant Closing Date, the Issuer shall have notified the Holder of all
Restatements. The Holder and the Issuer expressly acknowledge and agree that the issuance of
a press release by the Issuer disclosing a Restatement shall be deemed sufficient to satisfy
this notice requirement.
If any such condition is not satisfied or waived prior to the third (3rd) Business Day
following and excluding the date the Warrant Exercise Notice is delivered, then the Holder may, at
its sole option, and at any time, withdraw the Warrant Exercise Notice by written notice to the
Issuer regardless of whether such condition has been satisfied or waived as of the withdrawal date
and, after such withdrawal, shall have no further obligation with respect to such Warrant Exercise
Notice and may submit a Warrant Exercise Notice on any future date with respect to the shares
referenced in the original Warrant Exercise Notice.
1.3 When Exercise Effective. Each exercise of this Warrant shall be deemed to have
been effected immediately prior to 5:00 p.m. (time in effect in Fort Lauderdale, Florida on such
date) on the Business Day on which the Warrant Exercise Notice is delivered as provided in Section
1.1, and at such time the Person or Persons in whose name or names any certificate or certificates
for shares of Common Stock (or Other Securities) shall be issuable upon such exercise as provided
in Section 1.4 shall be deemed to have become the Holder or Holders of record thereof, provided,
however, that such exercise shall not be deemed effective if at or prior to 5:00 p.m. (time in
effect in Fort Lauderdale, Florida on such date) on the Warrant Closing Date the Holder delivers
written notice of withdrawal to the Issuer as set forth in Section 1.2.
1.4 Delivery of Warrant and Payment. On each Warrant Closing Date, the registered
Holder shall surrender this Warrant to the Issuer at the address set forth for the Issuer in the
introductory paragraph of this Warrant or such other address as the Issuer advises the Holder in
writing and (a) shall deliver payment in cash, by wire transfer to the Issuers account designated
by Issuer of immediately available funds or by certified or official bank check payable to the
order of the Issuer, to the extent that the Warrant is exercised in accordance with Section 1.1(a),
shall have so specified in the Warrant Exercise Notice delivered by such Holder and such Holder
shall thereupon be entitled to receive the number of duly authorized, validly issued, fully paid
and nonassessable shares of Common Stock (or Other Securities) determined as provided in Sections 2
and 3 hereof, or (b) if exercising this Warrant in accordance with Section 1.1(b) above, shall have
so specified in the Warrant Exercise Notice delivered by such Holder, and the Issuer shall deliver
to the Holders broker the number of duly authorized, validly issued, fully paid and nonassessable
shares of Common Stock (or Other Securities) determined as provided in Sections 2 and 3 hereof,
following the sale of which in accordance with Section 1.1(b) above such broker shall, within three
(3) Business Days after the Warrant Closing Date, deliver payment in cash, by wire transfer to the
Issuers account designated by Issuer of immediately available funds or by certified or official
bank check payable to the order of the Issuer, to the extent that the Warrant is exercised.
B-3
1.5 Delivery of Stock Certificates, etc. On each Warrant Closing Date, the Issuer at
its expense (including the payment by it of any applicable issue taxes) shall cause to be issued in
the name of and delivered to the Holder hereof or as such Holder may direct,
(a) via facsimile and at such address specified by the Holder via a reputable overnight
courier, a delivery notice in the form of Exhibit 2 hereto and one or more certificates for
the number of duly authorized, validly issued, fully paid and nonassessable shares of Common
Stock (or Other Securities) to which such Holder shall be entitled upon such exercise plus,
in lieu of any fractional share to which such Holder would otherwise be entitled, cash in an
amount equal to the same fraction of the Closing Sales Price per share on the Business Day
immediately preceding the date of such exercise, and
(b) in case such exercise is in part only, at such address specified by the Holder via
reputable overnight courier, a new Warrant of like tenor, calling in the aggregate on the
face or faces thereof for the number of shares of Common Stock equal (without giving effect
to any adjustment thereof) to the number of such shares called for on the face of this
Warrant minus the number of such shares designated by the Holder in the related Warrant
Exercise Notice upon such exercise as provided in Section 1.1.
2. Adjustment of Common Stock Issuable Upon Exercise.
2.1 General; Warrant Price. The number of shares of Common Stock that the Holder of
this Warrant shall be entitled to receive upon each exercise hereof shall be determined by
multiplying the number of shares of Common Stock that would otherwise (but for the provisions of
Sections 2 and 3) be issuable upon such exercise, as designated by the Holder hereof pursuant to
Section 1.1, by a fraction of which (a) the numerator is the Exercise Price and (b) the denominator
is the Warrant Price in effect on the date of such exercise. The Warrant Price shall
initially be the Exercise Price. The Warrant Price shall be adjusted and readjusted from time to
time as provided in Sections 2 and 3 hereof and, as so adjusted or readjusted, shall remain in
effect until a further adjustment or readjustment thereof is required by Sections 2 and 3 hereof.
2.2 INTENTIONALLY LEFT BLANK.
2.3 INTENTIONALLY LEFT BLANK.
2.4 INTENTIONALLY LEFT BLANK.
2.5 Treatment of Stock Dividends, Stock Splits, etc. In case the Issuer at any time
or from time to time on or after the Issuance Date shall declare or pay any dividend on the Common
Stock payable in Common Stock, or shall effect a subdivision of the outstanding shares of Common
Stock into a greater number of shares of Common Stock (by reclassification or otherwise than by
payment of a dividend in Common Stock), then, and in each such case, the Warrant Price in effect
immediately prior to such dividend or subdivision shall, concurrently with the deemed effectiveness
of such dividend or subdivision, be reduced to a price determined by multiplying the Warrant Price
by a fraction, the numerator of which shall be the number of shares of Common Stock outstanding
immediately prior to giving effect to such dividend or subdivision and the denominator of which
shall be the number of shares of Common Stock
B-4
outstanding immediately after giving effect to such dividend or subdivision (including,
without limitation, all shares of Common Stock deemed issued or issuable in connection with or as a
result of such dividend or subdivision notwithstanding that any such shares have not actually been
issued as of the deemed effectiveness of such dividend or subdivision). For purposes hereof, such
dividend or subdivision shall be deemed effective, and additional shares of Common Stock shall be
deemed to have been issued pursuant thereto (a) in the case of any such dividend, immediately after
the close of business on the record date for the determination of holders of any class of
securities entitled to receive such dividend, or (b) in the case of any such subdivision, at the
close of business on the day immediately prior to the day upon which such corporate action becomes
effective.
2.6 Adjustments for Combinations, etc. In case the outstanding shares of Common Stock
shall be combined or consolidated, by reclassification or otherwise, into a lesser number of shares
of Common Stock, the Warrant Price in effect immediately prior to such combination or consolidation
shall, concurrently with the effectiveness of such combination or consolidation, be proportionately
increased.
2.7 Dividends and Distributions in Cash, Property or Securities other than Common
Stock. In case the Issuer at any time or from time to time on or after the Issuance Date shall
declare, order, pay or make a dividend or other distribution on the Common Stock of cash, property
or securities (including, without limitation, a dividend payable in any shares, interests, rights,
options, warrants, evidences of indebtedness or convertible securities of the Company or any other
Person) other than a dividend payable in Common Stock covered under Section 2.5 hereof, then the
Warrant Price shall be reduced, effective as of the date of such distribution record date, (a) in
the case of a cash distribution, by the dollar amount of the cash distribution per share of Common
Stock, subject to the last sentence of this Section 2.7, (b) in the case of a distribution of
property other than cash, by the dollar amount of the fair market value of all the property being
distributed divided by the number of shares of Common Stock issued and outstanding as of such
dividend record date in respect of which such property distribution is being made and (c) in the
case of a distribution of securities (including, without limitation, a dividend payable in any
shares, interests, rights, options, warrants, evidences of indebtedness or convertible securities
of the Company or any other Person) other than a dividend payable in Common Stock covered under
Section 2.5 hereof, by the dollar amount of the fair market value of all such securities being
distributed divided by the number of shares of Common Stock issued and outstanding as of such
dividend record date in respect of which such property distribution is being made. The
determination of fair market value of any such property (other than cash) or securities pursuant to
this Section 2.7 shall be made by an independent, nationally recognized appraisal firm not
affiliated with the Issuer that is regularly engaged in the business of appraising the type of
property or securities, as applicable, that is the subject of such distribution, at the Issuers
expense. If the aggregate amount of any ordinary cash distributions from retained earnings lawfully
made in accordance with Section 607.06401 of the Florida Business Corporation Act (expressly
excluding, without limitation, extraordinary, liquidating or partial liquidating cash
distributions, by way of return of capital or otherwise) (Ordinary Cash Distributions) covered by
this Section 2.7 shall, during any quarterly period of any calendar year (i.e. January 1 to March
31, April 1 to June 30, July 1 to September 30, or October 1 to December 31) (each, a Quarterly
Period), total three-quarters of one percent (.75%) of the average of the Closing Sales Prices for
the dividend record dates for such Ordinary Cash
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Distributions during such Quarterly Period (the De Minimis Cash Distribution Amount) or
less, then such cash distributions shall not require an adjustment to the Warrant Price pursuant to
clause (a) of this Section 2.7; provided that, notwithstanding anything to the contrary set forth
herein, the Warrant Price shall be adjusted as provided in clause (a) of this Section 2.7 by the
aggregate amount of all (i) Ordinary Cash Distributions during any Quarterly Period in excess of
the De Minimis Cash Distribution Amount and (ii) cash distributions other than Ordinary Cash
Distributions.
2.8 Subsequent Equity Sales.
(a) Except as provided in Section 2.8(c) hereof, if and whenever the Company shall issue or
sell, or is, in accordance with any of Sections 2.8(b)(i) through 2.8(b)(iv) hereof, deemed to have
issued or sold, any Additional Shares of Common Stock for no consideration or for a consideration
per share less than the Exercise Price in effect immediately prior to the time of such issue or
sale, then and in each such case (a Trigger Issuance) the then-existing Exercise Price, shall be
reduced, as of the close of business on the effective date of the Trigger Issuance, to a price
determined as follows:
(i) if such Trigger Issuance occurs on or prior to the one year anniversary of the Issuance
Date, the price of the Additional Shares of Common Stock issued in connection with the Trigger
Issuance;
(ii) if such Trigger Issuance occurs after the one year anniversary of the Issuance Date, as
follows:
Adjusted Exercise Price = (A x B) + D
A+C
where
A equals the number of shares of Common Stock outstanding, including Additional Shares of
Common Stock deemed to be issued hereunder, immediately preceding such Trigger Issuance;
B equals the Exercise Price in effect immediately preceding such Trigger Issuance;
C equals the number of Additional Shares of Common Stock issued or deemed issued hereunder
as a result of the Trigger Issuance; and
D equals the aggregate consideration, if any, received or deemed to be received by the
Company upon such Trigger Issuance;
provided, however, that in no event shall the Exercise Price after giving effect to such Trigger
Issuance be (i) greater than the original Exercise Price; or (ii) less than $ (the market
price of the Companys Common Stock on the date of the Purchase Agreement), provided that the
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foregoing clause (ii) shall not be applicable after the Company shall have obtained the requisite
Stockholder Approval.
(b) For purposes of this Section 2.8, the following Sections 2.8(b)(i) through 2.8(b)(iv)
shall also be applicable:
(i) Issuance of Rights or Options. In case at any time the Company shall in any
manner grant (directly and not by assumption in a merger or otherwise) any Options or Convertible
Securities, whether or not such Options or the right to convert or exchange any such Convertible
Securities are immediately exercisable, and the price per share for which Common Stock is issuable
upon the exercise of such Options or upon the conversion or exchange of such Convertible Securities
(determined by dividing (i) the sum (which sum shall constitute the applicable consideration) of
(x) the total amount, if any, received or receivable by the Company as consideration for the
granting of such Options, plus (y) the aggregate amount of additional consideration payable to the
Company upon the exercise of all such Options, plus (z), in the case of such Options which relate
to Convertible Securities, the aggregate amount of additional consideration, if any, payable upon
the issue or sale of such Convertible Securities and upon the conversion or exchange thereof, by
(ii) the total maximum number of shares of Common Stock issuable upon the exercise of such Options
or upon the conversion or exchange of all such Convertible Securities issuable upon the exercise of
such Options) shall be less than the Exercise Price in effect immediately prior to the time of the
granting of such Options, then the total number of shares of Common Stock issuable upon the
exercise of such Options or upon conversion or exchange of the total amount of such Convertible
Securities issuable upon the exercise of such Options shall be deemed to have been issued for such
price per share as of the date of granting of such Options or the issuance of such Convertible
Securities and thereafter shall be deemed to be outstanding for purposes of adjusting the Exercise
Price. Except as otherwise provided in Section 2.8(b)(iii), no adjustment of the Exercise Price
shall be made upon the actual issue of such Common Stock or of such Convertible Securities upon
exercise of such Options or upon the actual issue of such Common Stock upon conversion or exchange
of such Convertible Securities.
(ii) Issuance of Convertible Securities. In case the Company shall in any manner
issue (directly and not by assumption in a merger or otherwise) or sell any Convertible Securities,
whether or not the rights to exchange or convert any such Convertible Securities are immediately
exercisable, and the price per share for which Common Stock is issuable upon such conversion or
exchange (determined by dividing (i) the sum (which sum shall constitute the applicable
consideration) of (x) the total amount received or receivable by the Company as consideration for
the issue or sale of such Convertible Securities, plus (y) the aggregate amount of additional
consideration, if any, payable to the Company upon the conversion or exchange thereof, by (ii) the
total number of shares of Common Stock issuable upon the conversion or exchange of all such
Convertible Securities) shall be less than the Exercise Price in effect immediately prior to the
time of such issue or sale, then the total maximum number of shares of Common Stock issuable upon
conversion or exchange of all such Convertible Securities shall be deemed to have been issued for
such price per share as of the date of the issue or sale of such Convertible Securities and
thereafter shall be deemed to be outstanding for purposes of adjusting the Exercise Price, provided
that (a) except as otherwise provided in Section 2.8(b)(iii), no adjustment of the Exercise Price
shall be made upon the actual issuance of such Common Stock upon conversion or exchange of such
Convertible Securities and (b) no further adjustment of the
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Exercise Price shall be made by reason of the issue or sale of Convertible Securities upon exercise
of any Options to purchase any such Convertible Securities for which adjustments of the Exercise
Price have been made pursuant to the other provisions of Section 2.8.
(iii) Change in Option Price or Conversion Rate. Upon the happening of any of the
following events, namely, if the purchase price provided for in any Option referred to in Section
2.8(b)(i) hereof, the additional consideration, if any, payable upon the conversion or exchange of
any Convertible Securities referred to in Sections 2.8(b)(i) or 2.8(b)(ii), or the rate at which
Convertible Securities referred to in Sections 2.8(b)(i) or 2.8(b)(ii) are convertible into or
exchangeable for Common Stock shall change at any time (including, but not limited to, changes
under or by reason of provisions designed to protect against dilution), the Exercise Price in
effect at the time of such event shall forthwith be readjusted to the Exercise Price which would
have been in effect at such time had such Options or Convertible Securities still outstanding
provided for such changed purchase price, additional consideration or conversion rate, as the case
may be, at the time initially granted, issued or sold. On the termination of any Option for which
any adjustment was made pursuant to this Section 2.8 or any right to convert or exchange
Convertible Securities for which any adjustment was made pursuant to this Section 2.8 (including
without limitation upon the redemption or purchase for consideration of such Convertible Securities
by the Company), the Exercise Price then in effect hereunder shall forthwith be changed to the
Exercise Price which would have been in effect at the time of such termination had such Option or
Convertible Securities, to the extent outstanding immediately prior to such termination, never been
issued.
(iv) Consideration for Stock. In case any shares of Common Stock, Options or
Convertible Securities shall be issued or sold for cash, the consideration received therefor shall
be deemed to be the gross amount received by the Company therefor. In case any shares of Common
Stock, Options or Convertible Securities shall be issued or sold for a consideration other than
cash, the amount of the consideration other than cash received by the Company shall be deemed to be
the fair market value of such consideration as determined in good faith by the Board of Directors
of the Company. In case any Options shall be issued in connection with the issue and sale of other
securities of the Company, together comprising one integral transaction in which no specific
consideration is allocated to such Options by the parties thereto, such Options shall be deemed to
have been issued for such consideration as determined in good faith by the Board of Directors of
the Company. If Common Stock, Options or Convertible Securities shall be issued or sold by the
Company and, in connection therewith, other Options or Convertible Securities (the Additional
Rights) are issued, then the consideration received or deemed to be received by the Company shall
be reduced by the fair market value of the Additional Rights (as determined using the Black-Scholes
option pricing model or another method mutually agreed to by the Company and the Holder). The Board
of Directors of the Company shall respond promptly, in writing, to an inquiry by the Holder as to
the fair market value of the Additional Rights or non-cash consideration. In the event that the
Holder objects to the Board of Directors determination of the fair market value of the Additional
Rights or non-cash consideration (as the case may be), the Company and the Holder shall jointly
select an appraiser, who is experienced in such matters. The decision of such appraiser shall be
final and conclusive, and the cost of such appraiser shall be borne evenly by the Company and the
Holder.
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(c) Notwithstanding the foregoing, no adjustment will be made under this Section 2.8 in
respect of the issuance of Excluded Securities.
3. Business Combinations.
3.1 Adjustment upon Business Combination. In case the Issuer on or after the Issuance
Date is a party to (i) any acquisition of the Issuer by means of merger or other form of corporate
reorganization in which outstanding shares of the Issuer are exchanged for securities or other
consideration issued, or caused to be issued, by the Acquiring Person or its Parent, Subsidiary or
affiliate, (ii) a sale of all or substantially all of the assets of the Issuer (on a consolidated
basis) in a single transaction or series of related transactions, (iii) any other transaction or
series of related transactions by the Issuer or relating to the Common Stock (including without
limitation, any stock purchase or tender or exchange offer) in which the power to cast the majority
of the eligible votes at a meeting of the Issuers shareholders at which directors are elected is
transferred to a single entity or group acting in concert, or (iv) a capital reorganization or
reclassification of the Common Stock (other than a reorganization or reclassification in which the
Common Stock are not converted into or exchanged for cash or other property, and, immediately after
consummation of such transaction, the shareholders of the Issuer immediately prior to such
transaction own the Common Stock or other voting stock of the Issuer in substantially the same
proportions relative to each other as such shareholders owned immediately prior to such
transaction), then, and in the case of each such transaction (each of which is referred to herein
as Business Combination), proper provision shall be made so that, upon the basis and the
terms and in the manner provided herein, the Holder, upon exercise of all or any part of this
Warrant at any time after the consummation of such Business Combination, shall be entitled to
receive upon such exercise, the Common Stock and Other Securities, cash and property to which the
Holder would have been entitled upon such consummation if the Holder had exercised the Warrant
immediately prior thereto (including, without limitation, any additional shares of Common Stock,
Other Securities, cash and property issuable as a result of an increase in the Issuable Number
occurring after the date of consummation of such Business Combination), as determined using the
Black-Scholes option pricing model or another method mutually agreed to by the Company and the
Holder; provided, that if the Acquiring Person or its Parent, as the case may be, shall
combine, subdivide or reclassify its common stock, or shall declare any dividend payable in shares
of its common stock, or shall take any other action of a similar nature affecting such shares, the
calculations above shall be adjusted to the extent appropriate, as provided in Section 2 of this
Warrant, to reflect such event, including appropriate adjustments to account for any such event
that occurs during any of the measurement periods set forth above.
3.2 Assumption of Obligations. Notwithstanding anything contained herein to the
contrary, the Issuer will not effect any Business Combination unless, prior to the consummation
thereof, each Person (other than the Issuer) that may be required to deliver any stock, securities,
cash or property upon exercise of this Warrant as provided herein shall assume (A) the obligations
of the Issuer under this Warrant (and if the Issuer shall survive the consummation of such
transaction, such assumption shall be in addition to, and shall not release the Issuer from, any
continuing obligations of the Issuer under this Warrant) and (B) the obligation to deliver to the
Holder such shares of stock, securities, cash or property as, in accordance with the foregoing
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provisions of this Section 3 and the other provisions of this Warrant, the Holder may be
entitled to receive.
4. No Impairment. The Issuer will not, by amendment of its articles of incorporation or
through any consolidation, merger, reorganization, transfer of assets, dissolution, issue or sale
of securities or any other voluntary action, avoid or seek to avoid the observance or performance
of any of the terms of this Warrant, but will at all times in good faith assist in the carrying out
of all such terms and in the taking of all such action as may be necessary or appropriate in order
to protect the rights of the Holder of this Warrant against impairment. Without limiting the
generality of the foregoing, the Issuer (a) will not permit the par value of any shares of stock
receivable upon the exercise of this Warrant to exceed the amount payable therefor upon such
exercise, and (b) will take all such action as may be necessary or appropriate in order that the
Issuer may validly and legally issue fully paid and nonassessable shares of stock on the exercise
of the Warrants from time to time outstanding.
5. Accountants Report as to Adjustments. In each case of any adjustment or readjustment
in the shares of Common Stock (or Other Securities) issuable upon the exercise of this Warrant, the
Issuer at its expense will promptly compute such adjustment or readjustment in accordance with the
terms of this Warrant and, to the extent Holder in good faith disputes in writing such computations
(setting forth in reasonable detail the basis for such dispute), cause independent certified public
accountants of recognized national standing (which may be the regular auditors of the Issuer)
selected by the Issuer (and whose fees and expenses shall be borne by the Issuer) to verify such
computation and prepare a report setting forth such adjustment or readjustment and showing in
reasonable detail the method of calculation thereof and the facts upon which such adjustment or
readjustment is based, including but not limited to a statement of (a) the consideration received
or to be received by the Issuer for any Additional Shares of Common Stock issued or sold or deemed
to have been issued, (b) the number of shares of Common Stock outstanding or deemed to be
outstanding, and (c) the Warrant Price in effect immediately prior to such issue or sale and as
adjusted and readjusted (if required by Section 2 or 3) on account thereof. The Issuer will
forthwith mail a copy of each such report to each Holder of a Warrant and will, upon the written
request at any time of any Holder of a Warrant, furnish to such Holder a copy of the most recent
report setting forth the Warrant Price in effect as of the date such report is delivered and
showing in reasonable detail how it was calculated. The Issuer will also keep copies of all such
reports at its principal office and will cause the same to be available for inspection at such
office during normal business hours by any Holder of a Warrant or any prospective purchaser of a
Warrant designated by the Holder thereof.
6. Notices of Corporate Action. In the event of :
(a) any taking by the Issuer of a record of the holders of any class of securities for
the purpose of determining the holders thereof who are entitled to receive any dividend or
other distribution, or any right to subscribe for, purchase or otherwise acquire any shares
of stock of any class or any other securities or property, or to receive any other right, or
(b) any capital reorganization of the Issuer, any reclassification or recapitalization
of the capital stock of the Issuer or any consolidation or merger involving
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the Issuer and any other Person or any transfer of all or substantially all the assets
of the Issuer to any other Person, or
(c) any voluntary or involuntary dissolution, liquidation or winding-up of the Issuer,
the Issuer will mail to the Holder a notice specifying (i) the date or expected date on which any
such record is to be taken for the purpose of such dividend, distribution or right, and the amount
and character of such dividend, distribution or right, and (ii) the date or expected date on which
any such reorganization, reclassification, recapitalization, consolidation, merger, transfer,
dissolution, liquidation or winding-up is to take place and the time, if any such time is to be
fixed, as of which the holders of record of Common Stock (or Other Securities) shall be entitled to
exchange their shares of Common Stock (or Other Securities) for the securities or other property
deliverable upon such reorganization, reclassification, recapitalization, consolidation, merger,
transfer, dissolution, liquidation or winding-up. Such notice shall be delivered to Holder at least
twenty (20) Business Days prior to the date therein specified, but in no event later than the date
notice is delivered to any holder of Common Stock.
7. Reservation of Shares. For so long as the Warrant represented hereby has not been
exercised in full, the Issuer shall at all times prior to the Termination Date reserve and keep
available, free from pre-emptive rights, out of its authorized but unissued capital stock, the
number of shares required to permit the full exercise of this Warrant (assuming it were exercised
in the manner provided for in Section 1.1(a) hereof).
8. Lost or Stolen Warrant. In case this Warrant shall be mutilated, lost, stolen or
destroyed, the Issuer shall issue in exchange and substitution for and upon cancellation of the
mutilated warrant certificate, or in lieu of and substitution for the warrant certificate lost,
stolen or destroyed, a new warrant certificate of like tenor, but only upon receipt of evidence
reasonably satisfactory, and (in the case of loss, theft or destruction) of an undertaking to
provide reasonably satisfactory indemnification, to the Issuer of or in respect of such loss, theft
or destruction of such warrant certificate.
9.
Warrant Agent. The Issuer (and any corporation into which the Issuer is merged or any
corporation resulting from any consolidation to which the Issuer is a party) shall serve as warrant
agent (the
Warrant Agent) under this Warrant. The Warrant Agent hereunder shall at all
times maintain a register (the
Warrant Register) of the Holders of this Warrant. Upon 30
days notice to the registered Holder hereof, the Issuer may appoint a new Warrant Agent. Such new
Warrant Agent shall be a corporation doing business and in good standing under the laws of the
United States or any state thereof, and having a combined capital and surplus of not less than
$50,000,000. The combined capital and surplus of any such new Warrant Agent shall be deemed to be
the combined capital and surplus as set forth in the most recent report of its condition published
by such Warrant Agent prior to its appointment; provided that such reports are published at least
annually pursuant to law or to the requirements of a federal or state supervising or examining
authority. After acceptance in writing of such appointment by the new Warrant Agent, it shall be
vested with the same powers, rights, duties and responsibilities as if it had been originally named
herein as the Warrant Agent, without any further assurance, conveyance, act or deed; but if for any
reason it shall be reasonably necessary or expedient to execute and deliver
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any further assurance, conveyance, act or deed, the same shall be done at the expense of the Issuer
and shall be legally and validly executed and delivered by the Issuer. Any corporation into which
any new Warrant Agent may be merged or any corporation resulting from any consolidation to which
any new Warrant Agent shall be a party or any corporation to which any new Warrant Agent transfers
substantially all of its corporate trust or shareholders services business shall be a successor
Warrant Agent under this Warrant without any further act; provided that such corporation (i) would
be eligible for appointment as successor to the Warrant Agent under the provisions of this Section
9 or (ii) is a wholly owned Subsidiary of the Warrant Agent. Any such successor Warrant Agent shall
promptly cause notice of its succession as Warrant Agent to be delivered via reputable overnight
courier to the registered Holder hereof at such Holders last address as shown on the Warrant
Register.
10. Definitions. As used herein, unless the context otherwise requires, the following
terms have the following respective meanings:
10.1 Acquiring Person means, in connection with any Business Combination: (i) the
continuing or surviving corporation or other entity of a consolidation or merger with the Issuer
(if other than the Issuer), (ii) the transferee of all or substantially all of the properties or
assets of the Issuer, (iii) the corporation or other entity consolidating with or merging into the
Issuer in a consolidation or merger in connection with which the Common Stock is changed into or
exchanged for stock or other securities of any other Person or cash or any other property, (iv) the
entity or group acting in concert acquiring or possessing the power to cast the majority of the
eligible votes at a meeting of the Issuers shareholders at which directors are elected or, (v) in
the case of a capital reorganization or reclassification described in clause (iv) of the definition
of Business Combination, the Issuer.
10.2 Additional Shares of Common Stock means all shares (including treasury shares)
of Common Stock issued or sold by the Issuer on or after the Issuance Date, whether or not
subsequently reacquired or retired by the Issuer, other than shares issued upon the exercise of the
Warrants; provided, however, that this term shall not include Excluded Securities.
10.3 Business Combination shall have the meaning attributed to it in Section 3.1
hereof.
10.4 Business Day means any day on which the Common Stock may be traded on the
American Stock Exchange or, if not admitted for trading on the American Stock Exchange, on any day
other than a Saturday, Sunday or holiday on which banks in Fort Lauderdale, Florida are required or
permitted to be closed.
10.5 Closing Sales Price means, on any date, the amount per share of the Common
Stock (or, for purposes of determining the Closing Sales Price of the common stock of an Acquiring
Person or its Parent under Section 3, the common stock of such Acquiring Person or such Parent),
equal to (i) the closing sales price, or if no sale takes place on such date, the closing bid price
of the Common Stock (or, in the case of an Acquiring Person or its Parent, it common stock) on the
American Stock Exchange, or if not then listed or admitted for trading on the American Stock
Exchange then on the national securities exchange on which the Common Stock (or, in the case of an
Acquiring Person or its Parent, it common stock) is then listed or admitted
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for trading, or if not then listed or admitted for trading on a national securities exchange
then on any securities exchange, quotation system or the OTC Bulletin Board on which the Common
Stock (or, in the case of an Acquiring Person or its Parent, it common stock) is then listed or
admitted for trading on such date, in each case as reported by Bloomberg, L.P. (or by such other
Person as the Holder and the Issuer may agree), or (ii) if such Common Stock or common stock of an
Acquiring Person or its Parent is not then listed or admitted for trading on any securities
exchange, quotation system or the OTC Bulletin Board, the higher of (x) the book value per share
thereof as determined (at Issuers cost) by any firm of independent public accountants of
recognized standing selected by the Board of Directors of the Issuer as of the last calendar day of
any month ending within sixty (60) calendar days preceding the date as of which the determination
is to be made or (y) the fair value per share thereof determined in good faith by an independent,
nationally recognized appraisal firm selected by the Issuer and reasonably acceptable to the Holder
(whose fees and expenses shall be borne by Issuer), subject to adjustment for stock splits,
recombinations, stock dividends and the like.
10.6 Common Stock as defined in the introduction to this Warrant, such term to
include any stock into which such Common Stock shall have been changed or any stock resulting from
any reclassification of such Common Stock, and all other stock of any class or classes (however
designated) of the Issuer the holders of which have the right, without limitation as to amount,
either to all or to a share of the balance of current dividends and liquidating dividends after the
payment of dividends and distributions on any shares entitled to preference to Common Stock shares.
10.7 Convertible Securities means any evidences of indebtedness, shares of stock
(other than Common Stock) or other securities directly or indirectly convertible into or
exchangeable for Additional Shares of Common Stock.
10.8 Excluded Securities means each of the following:
(a) Common Stock issued pursuant to a duly authorized resolution of the Issuers Board
of Directors approving such issuance, the issuance of which has been expressly approved by
any director of the Issuer designated by Investor;
(b) Common Stock issuable upon the exercise of Options issued pursuant to a duly
authorized resolution of the Issuers Board of Directors or the Compensation Committee of
the Issuers Board of Directors approving such issuance, the issuance of which has been
expressly approved by any director of the Issuer designated by Investor, or Common Stock
issuable upon the exercise of Options issued pursuant to the Issuers employee stock option
plan or other employee, board, or consultant incentive plans or agreements approved by the
Issuers Board of Directors or the Compensation Committee of the Issuers Board of
Directors;
(c) Common Stock issuable upon the conversion of Convertible Securities outstanding as
of the Issuance Date or Convertible Securities issued pursuant to a duly authorized
resolution of the Issuers Board of Directors approving such issuance, the issuance of which
has been expressly approved by any director of the Issuer designated by Investor;
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(d) Common Stock issuable in connection with any business combination by the Company to
the extent such combination and issuance in connection therewith are authorized pursuant to
a duly authorized resolution of the Issuers Board of Directors;
(e) Common Stock issued or issuable to the Holder upon exercise of this Warrant or on
the Issuance Date; and
(f) Anti-Dilution Shares to the extent the issuance thereof, together with the issuance
of Anti-Dilution Shares pursuant to purchase agreements substantially similar to the
Purchase Agreement entered into on the date of the Purchase Agreement by the Company and
other third party purchasers, would result in the issuance of more than 19.9% of the number
of shares of Common Stock outstanding on the date of the Purchase Agreement, unless the
Stockholder Approval shall have been obtained.
For the avoidance of doubt, clause (f) above shall cease to be effective upon the Company
obtaining Stockholder Approval.
10.9 Issuer as defined in the introduction to this Warrant, means Sunair Services
Corporation (formerly known as Sunair Electronics, Inc.) and any corporation or entity which shall
succeed to or assume the obligations of Sunair Electronics, Inc.
10.10 Options means any rights, options or warrants to subscribe for, purchase or
otherwise acquire either Additional Shares of Common Stock or Convertible Securities.
10.11 Other Securities means any stock (other than Common Stock) and other
securities of the Issuer or any other Person (corporate or otherwise) which the Holder of the
Warrant at any time shall be entitled to receive, or shall have received, upon the exercise of the
Warrant, in lieu of or in addition to Common Stock, or which at any time shall be issuable or shall
have been issued in exchange for or in replacement of Common Stock or Other Securities.
10.12 Parent as to any Acquiring Person, means any corporation which (a) controls
the Acquiring Person directly or indirectly through one or more intermediaries, (b) is required to
include the Acquiring Person in the consolidated financial statements contained in such Parents
Annual Report on Form 10-K (if Parent is required to file such a report) or would be required to so
include the Acquiring Person in such Parents consolidated financial statements if they were
prepared in accordance with U.S. GAAP and (c) is not itself included in the consolidated financial
statements of any other Person (other than its consolidated Subsidiaries).
10.13 Person means a corporation, an association, a partnership, a limited liability
company, an organization, a business, an individual, a government or political subdivision thereof
or a governmental agency.
10.14 Registered Common Stock means Common Stock that has been registered under the
Securities Act and is freely tradable.
10.15 Restatement means that Issuer restates or announces its intention to restate,
in any material way, any portion of its financial statements as included (i) in a Form 10-KSB or
Form 10-QSB filed with the SEC in the form of an amendment thereto, (ii) in a Form 8-K or in
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any other filing made with the SEC, or (iii) in a press release or other form of media, except
as is required as a result of a change occurring after the date of this Warrant in (1) applicable
law or (2) generally accepted accounting principles promulgated by the Financial Accounting
Standards Board or the SEC, which change is implemented by Issuer in the manner and at the time
prescribed by such law or such generally accepted accounting principle.
10.16 SEC means the Securities and Exchange Commission.
10.17 Subsidiary of a Person means (i) a corporation, a majority of whose stock with
voting power, under ordinary circumstances, to elect directors is at the time of determination,
directly or indirectly, owned by such Person or by one or more Subsidiaries of such Person, or (ii)
any other entity (other than a corporation) in which such Person or one or more Subsidiaries of
such Person, directly or indirectly, at the date of determination thereof has at least a majority
ownership interest.
10.18 Termination Date has the meaning set forth in the introductory paragraph of
this Warrant.
11. Remedies. The Issuer stipulates that the remedies at law of the Holder of this Warrant
in the event of any default or threatened default by the Issuer in the performance of or compliance
with any of the terms of this Warrant are not and will not be adequate and that, to the fullest
extent permitted by law, such terms may be specifically enforced by a decree for the specific
performance of any agreement contained herein or by an injunction against a violation of any of the
terms hereof or otherwise.
12. No Rights or Liabilities as Shareholder. Nothing contained in this Warrant shall be
construed as conferring upon the Holder hereof any rights as a shareholder of the Issuer or as
imposing any obligation on such Holder to purchase any securities or as imposing any liabilities on
such Holder as a shareholder of the Issuer, whether such obligation or liabilities are asserted by
the Issuer or by creditors of the Issuer.
13. Notices. All notices and other communications under this Warrant shall be in writing
and shall be delivered by facsimile or by a nationally recognized overnight courier, postage
prepaid, addressed (a) if to Investor, to the address set forth for the Investor in the
introductory paragraph of this Warrant, and if to the Issuer, to the address set forth for the
Issuer in the introductory paragraph of this Warrant, or (b) if to any other Holder of this
Warrant, at the registered address of such Holder as set forth in the register kept at the
principal office of the Issuer, provided that the exercise of any Warrant shall be effective in the
manner provided in Section 1.
14. Amendments. This Warrant and any term hereof may be changed, waived, discharged or
terminated only by an instrument in writing signed by the party against which enforcement of such
change, waiver, discharge or termination is sought. For clarification purposes, neither this
Warrant nor any term hereof may be changed, waived, discharged or terminated other than pursuant to
an instrument in writing signed by the Holder.
15. Descriptive Headings. The headings in this Warrant are for purposes of reference only
and shall not limit or otherwise affect the meaning hereof.
B-15
16. GOVERNING LAW. THIS WARRANT SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, AND
THE RIGHTS OF THE PARTIES SHALL BE GOVERNED BY, THE LAW OF THE STATE OF NEW YORK, WITHOUT REGARD TO
PRINCIPLES OF CONFLICT OF LAWS.
17. Judicial Proceedings; Waiver of Jury. Any judicial proceeding brought against the
Issuer with respect to this Warrant may be brought in any court of competent jurisdiction in the
State of Florida or of the United States of America for the Southern District of Florida and, by
Issuers execution and delivery and Holders acceptance of this Warrant, each of the Issuer and
Holder (a) accepts, generally and unconditionally, the nonexclusive jurisdiction of such courts and
any related appellate court, and irrevocably agrees to be bound by any judgment rendered thereby in
connection with this Warrant, subject to any rights of appeal, and (b) irrevocably waives any
objection the Issuer or Holder may now or hereafter have as to the venue of any such suit, action
or proceeding brought in such a court or that such court is an inconvenient forum. Each of the
Issuer and Holder hereby waives personal service of process and consents, that service of process
upon it may be made by certified or registered mail, return receipt requested, at its address
specified or determined in accordance with the provisions of Section 13, and service so made shall
be deemed completed on the first Business Day after such service is deposited with a reputable
overnight courier or, if earlier, when delivered. Nothing herein shall affect the right to serve
process in any other manner permitted by law or shall limit the right of any party to bring
proceedings against the other party in the courts of any other jurisdiction. EACH PARTY HEREBY
WAIVES TRIAL BY JURY IN ANY JUDICIAL PROCEEDING INVOLVING, DIRECTLY, OR INDIRECTLY, ANY MATTER
(WHETHER SOUNDING IN TORT, CONTRACT OR OTHERWISE) IN ANY WAY ARISING OUT OF, RELATED TO, OR
CONNECTED WITH THIS WARRANT OR THE RELATIONSHIP ESTABLISHED HEREUNDER.
18. Legend. Unless the shares of Common Stock or Other Securities issuable upon exercise
of this Warrant have been registered under the Securities Act, upon exercise of all or any part of
the Warrant and the issuance of any of the shares of Common Stock or Other Securities, all
certificates representing such securities shall bear on the face thereof substantially the
following legend:
The securities represented by this certificate have been acquired
directly or indirectly from the Issuer without being registered
under the Securities Act of 1933, as amended (the Securities Act),
or any other applicable securities laws, and are restricted
securities as that term is defined under Rule 144 promulgated under
the Securities Act. These securities may not be sold, pledged,
transferred, distributed or otherwise disposed of in any manner
(Transfer) unless they are registered under the Securities Act and
any other applicable securities laws, or unless the request for
Transfer is accompanied by a favorable opinion of counsel,
reasonably satisfactory to the Issuer, stating that the Transfer
will not result in a violation of the Securities Act or any other
applicable securities laws.
B-16
19. Assignment. Notwithstanding anything to the contrary set forth herein, this Warrant
and all rights hereunder may be assigned by the Holder to any Person; and upon the Holders
providing written notice of such assignment to the Issuer, the Holders assignee shall become the
registered assignee and the registered Holder of this Warrant, and the Issuer shall recognize such
assignment and cause such assignment to be reflected in its books and records.
20. Restriction on Exercise. Notwithstanding anything to the contrary contained in this
Warrant, this Warrant shall not be exercisable by the Holder hereof to the extent (but only to the
extent) that, if exercisable by such Holder, such Holder, any of its affiliates, or any other
Person which may be deemed to be acting as a group in concert with such Holder or any of its
affiliates for the purposes of Section 13(d) of the Securities Exchange Act of 1934, as amended
(the Exchange Act), would beneficially own in excess of 4.9% (the Applicable
Percentage) of the outstanding shares of Common Stock. To the extent the above limitation
applies, the determination of whether this Warrant shall be exercisable (vis-a-vis other
convertible, exercisable or exchangeable securities owned by such Holder) and of which this Warrant
shall be exercisable shall, subject to such Applicable Percentage limitation, be determined on the
basis of the first submission to the Company for conversion, exercise or exchange (as the case may
be). No prior inability to exercise this Warrant pursuant to this Section 20 shall have any effect
on the applicability of the provisions of this Section 20 with respect to any subsequent
determination of exercisability. For the purposes of this Section 20, beneficial ownership and all
determinations and calculations, including, without limitation, with respect to calculations of
percentage ownership, shall be determined in accordance with Section 13(d) of the Exchange Act, and
the rules and regulations promulgated thereunder. The provisions of this Section 20 shall be
implemented in a manner otherwise than in strict conformity with the terms this Section 20 to
correct this Section 20 (or any portion hereof) which may be defective or inconsistent with the
intended Applicable Percentage beneficial ownership limitation herein contained or to make changes
or supplements necessary or desirable to properly give effect to such Applicable Percentage
limitation. The limitations contained in this Section 20 shall apply to a successor Holder of this
Warrant. The holders of Common Stock of the Company shall be third party beneficiaries of this
Section 20 and the Company may not waive this Section 20 without the consent of holders of a
majority of its Common Stock. The Holder may waive the applicability of this Section 20 upon sixty
one (61) days prior written notice to the Company.
This Warrant shall not be valid unless signed by the Issuer.
[Remainder of Page Left Blank Intentionally]
B-17
IN WITNESS WHEREOF, Sunair Services Corporation has caused this Warrant to be signed by its
duly authorized officer.
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SUNAIR SERVICES CORPORATION |
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B-18
Exhibit 1
[FORM OF WARRANT EXERCISE NOTICE]
(To Be Executed Upon Exercise Of the Warrant)
[DATE]
Sunair Services Corporation
3005 SW 3rd Ave.
Fort Lauderdale, FL 33315-3312
Attention: [ ]
Re: Warrant No.
Ladies and Gentlemen:
The undersigned is the registered Holder of the above-referenced warrant (the
Warrant) issued by SUNAIR SERVICES CORPORATION (the Issuer), evidenced by copy
of the Warrant attached hereto, and hereby elects to exercise the Warrant to purchase
[ ]1 shares of Common Stock (or Other Securities, as applicable) (as such capitalized
terms are defined in such Warrant) and (check the appropriate box):
[___] cash exercise: shall deliver on the Warrant Closing Date via wire transfer of
immediately available funds or by certified or official bank check $ to the order of
Sunair Services Corporation as payment for such Common Stock in accordance with the terms of such
Warrant; or
[___] broker-assisted exercise: following the Issuers issuance and delivery to the broker
identified below of certificates for the shares of Common Stock (or Other Securities, as
applicable) with respect to which this Warrant is being exercised and the sale of such shares of
Common Stock (or Other Securities, as applicable), such broker shall deliver within three (3)
Business Days after the Warrant Closing Date via wire transfer of immediately available funds or by
certified or official bank check $ to the order of Sunair Services Corporation as payment
for such Common Stock in accordance with the terms of such Warrant.
In accordance with the terms of the attached Warrant, the undersigned requests that
certificates for such shares be registered in the name of and delivered to the undersigned at the
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Insert here the Issuable Number called for on the face of
this Warrant (or, in the case of a partial exercise, the portion thereof as to
which this Warrant is being exercised), in either case without making any
adjustment for Additional Shares of Common Stock or any other stock or other
securities or property or cash which, pursuant to the adjustment provisions of
this Warrant, may be delivered upon exercise. In the case of partial exercise,
a new Warrant or Warrants will be issued and delivered, representing the
unexercised portion of the Warrant, to the Holder surrendering the Warrant. |
B-19
following address (or in the case of a broker-assisted exercise, delivered to the following
broker at the following address):
The undersigned will deliver the original of the Warrant no later than the third Business Day
after and excluding the date of this notice.
[If the number of shares of Common Stock to be delivered is less than the total number of
shares of Common Stock deliverable under the Warrant, insert the following The undersigned
requests that a new warrant certificate substantially identical to the attached Warrant be issued
to the undersigned evidencing the right to purchase the number of shares of Common Stock equal to
(x) the total number of shares of Common Stock deliverable under the Warrant less (y)
[ ]2.]
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ACKNOWLEDGED: |
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SUNAIR SERVICES CORPORATION |
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Insert here the number of shares identified in the
footnote immediately preceding this one. |
20
Exhibit 2
[FORM OF WARRANT EXERCISE DELIVERY NOTICE]
[Date]
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Attention: |
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Telephone:
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Facsimile:
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Ladies and Gentlemen:
Reference is made to Warrant No. issued by SUNAIR SERVICES CORPORATION (the
Warrant) dated as of . Capitalized terms not otherwise defined herein
shall have the meanings ascribed thereto in the Warrant.
This notice confirms that the Warrant has been exercised by the Holder with respect to
shares of Common Stock at a Warrant Price (as defined in the Warrant) of
$ . Attached are copies of the front and back of the original stock
certificates, each
representing shares of Common Stock, together with a copy of the
overnight courier air bill which will be used to ship such stock certificates. Also attached is a
reissued warrant certificate, as provided in Section 1.5 of the Warrant. We will send the original
stock certificates by overnight courier to the following address:
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SUNAIR SERVICES CORPORATION |
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B- 21