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OPTION FOR THE PURCHASE OF SHARES OF COMMON STOCK OF
SWISHER INTERNATIONAL, INC.
INCORPORATED UNDER THE LAWS OF THE STATE OF NEVADA
THIS CERTIFIES THAT, for value received, Swisher International, Inc.
(the "Company") hereby grants to Professional Carpet Systems, Inc., or assigns
who become holders pursuant to the limited transferability permitted in Section
3 hereof (the "Optionee"), subject to the terms and conditions set forth or
incorporated herein, an Option to subscribe for, purchase and receive from the
Company all or any part of an aggregate of 75,000 fully paid and nonassessable
shares of Common Stock of the Company (the "Option Shares"), as such Common
Stock is now constituted, at a purchase price of $6.00 per Option Share.
1. The Option evidenced hereby shall be exercisable in whole or
in part (but only in multiples of 100 Shares unless such exercise is as to the
remaining balance of this Option) at any time after the date hereof; provided,
however, that upon the occurrence of any of the events specified in Section 4
below, the number of Option Shares shall be adjusted as specified herein. This
Option must be exercised on or before July 31, 2001. If not exercised by July
31, 2001, all rights granted herein shall be extinguished, void and of no
further force or effect.
2. The Option granted hereby shall be exercisable by the delivery
to and receipt by the Company of (i) a written notice of election to purchase,
specifying the number of Option Shares to be purchased; (ii) payment of the
full purchase price thereof in cash or certified check payable to the order of
the Company, or by fully-paid and nonassessable shares of Common Stock of the
Company properly endorsed over to the Company, or a combination thereof; and
(iii) this Option Agreement for endorsement of exercise by the Company. In the
event shares of Common Stock are submitted as whole or partial payment for
Option Shares to be purchased hereunder, such shares will be valued at their
Fair Market Value on the date such Shares received by the Company are applied
to payment of the exercise price. For purposes of this Option, "Fair Market
Value" means, with respect to the date concerned (or the next following trading
day if the date concerned is not a trading day): (a) if the Common Stock is
then reported on by The Nasdaq Stock Market, Inc., the average between the bid
and asked prices on such date; or (b) if the Common Stock is then listed on a
national securities exchange, the closing price on such date; or (c) the
average of the highest or lowest reported sales prices of the Common Stock, as
reported by such other responsible reporting service as the Company
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may select, or (d) if the Common shares are not publicly traded, then such
value as may be determined in the good faith judgment of the Company. In the
event this Option is exercised in part only, the Company shall cause to be
delivered to the Optionee a new Option of like tenor evidencing the right of
the Optionee to purchase the number of Option Shares purchasable hereunder as
to which this Option has not been exercised.
3. This Option may not be transferred or assigned, except to
shareholders of Professional Carpet Systems, Inc., a spouse, parent, sibling or
lineal descendant of any such shareholder, any trust for the benefit of such
persons, or any distributee, legatee or devisee of the such shareholder who
acquires the shares by will or operation of law upon the death or such
shareholder. The Company may deem and treat the Optionee as the absolute owner
of this Option (notwithstanding any notation of ownership or other writing
hereon made by anyone) for all purposes and the Company shall not be affected
by any notice to the contrary. The Optionee, as such, shall not have any
rights of a shareholder of the Company, either at law or at equity, and the
rights of the Optionee, as such, are limited to those rights expressly provided
in this Option.
4.a. If at any time prior to the expiration of this Option by its
terms or by exercise, the Company increases or decreases the number of
its issued and outstanding shares of Common Stock, or changes in any
way the rights and privileges of such shares of Common Stock, by means
of (i) the payment of a share dividend or the making of any other
distribution on such shares of Common Stock payable in its shares of
Common Stock, (ii) a split or subdivision of shares of Common Stock,
or (iii) a consolidation or combination of shares of Common Stock,
then the Exercise Price in effect at the time of such action and the
number of Option Shares purchasable at that time shall be
proportionately adjusted so that the numbers, rights and privileges
relating to the Option Shares then purchasable upon the exercise of
this Option shall be increased, decreased or changed in like manner,
for the same aggregate purchase price set forth herein, as if the
Option Shares purchasable upon the exercise of the Option immediately
prior to the event had been issued, outstanding, fully paid and
nonassessable at the time of that event. Any dividend paid or
distributed on the shares of Common Stock in shares of any other class
of shares of the Company or securities convertible into shares of
Common Stock shall be treated as a dividend paid in shares of Common
Stock to the extent shares of Common Stock are issuable on the payment
or conversion thereof.
b. In the event, prior to the expiration of this Option
by exercise or by its terms, the Company shall be recapitalized by
reclassifying its outstanding shares of Common Stock into shares with
a different par value, or by changing its outstanding shares of Common
Stock to shares without par value or in the event of any other
material change of the capital
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structure of the Company or of any successor corporation by reason of
any reclassification, recapitalization, merger or conveyance, prompt,
proportionate, equitable, lawful and adequate provision shall be made
whereby the Optionee shall thereafter have the right to purchase, on
the basis and the terms and conditions specified herein, in lieu of
the Option Shares theretofore purchasable on the exercise of this
Option, such securities or assets as may be issued or payable with
respect to or in exchange for the number of Option Shares theretofore
purchasable on exercise of this Option had such reclassification,
recapitalization, merger or conveyance not taken place; and in any
such event, the rights of the Optionee to any adjustment in the number
of Option Shares purchasable on exercise of this Option, as set forth
above, shall continue and be preserved in respect of any stock,
securities or assets which the Optionee becomes entitled to purchase.
c. In the event the Company, at any time while this
Option shall remain unexpired and unexercised, shall sell all or
substantially all of its property, or dissolve, liquidate or wind up
its affairs, prompt, proportionate, equitable, lawful and adequate
provision shall be made as part of the terms of such sale,
dissolution, liquidation or winding up such that the Optionee may
thereafter receive, on exercise hereof, in lieu of each Option Share
which the Optionee would have been entitled to receive, the same kind
and amount of any stock, securities or assets as may be issuable,
distributable or payable on any such sale, dissolution, liquidation or
winding up with respect to each share of Common Stock of the Company;
provided, however, that in the event of any such sale, dissolution,
liquidation or winding up, the right to exercise the Option shall
terminate on a date fixed by the Company, such date to be not earlier
than 5:00 P.M., Eastern Time, on the 45th day next succeeding the date
on which notice of such termination of the right to exercise the
Option has been given by mail to the Optionee.
d. On exercise of this Option, the Company shall not be
required to deliver fractions of Option Shares; provided, however,
that the Company shall make prompt, proportionate, equitable, lawful
and adequate provisions in respect of any such fraction of one Option
Share either on the basis of adjustment in the then applicable
Exercise Price or a purchase of the fractional interest at the price
of the Company's shares of Common Stock or such other reasonable basis
as the Company may determine.
e. In the event, prior to expiration of this Option by
exercise or by its terms, the Company shall determine to take a record
of the holders of its Common Stock for the purpose of determining
shareholders entitled to receive any stock dividend, distribution or
other right
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which will cause any change or adjustment in the number, amount, price
or nature of the Common Stock or other stock, securities or assets
deliverable on exercise of the Options pursuant to the foregoing
provisions, the Company shall give to the Optionee at least 30 days'
prior written notice to the effect that it intends to take such a
record. Such notice shall specify the date as of which such record is
to be taken; the purpose for which such record is to be taken; and the
number, amount, price and nature of the Common Stock or other stock,
securities or assets which will be deliverable on exercise of this
Option after the action for which such record will be taken has been
completed. Without limiting the obligation of the Company to provide
notice to the Optionee of any corporate action hereunder, the failure
of the Company to give notice shall not invalidate such corporate
action of the Company.
f. No adjustment of the Exercise Price shall be made as
a result of or in connection with (i) the issuance of Common Stock of
the Company pursuant to options, warrants, employee stock ownership
plans and share purchase agreements outstanding or in effect on the
date hereof, (ii) the establishment of additional option plans of the
Company, the modification, renewal or extension of any plan now in
effect or hereafter created, or the issuance of Common Stock on
exercise of any options pursuant to such plans, and (iii) the issuance
of Common Stock in connection with compensation arrangements for
officers, employees or agents of the Company or any subsidiary, and
the like. 5.a. If the Company shall file a registration statement
(other than on Form S-4, Form S-8, or any successor form) with the
Securities and Exchange Commission (the "Commission") while Option
Shares are available for purchase upon exercise of this Option or
while any Option Shares (which have not been so registered) are
outstanding, the Company shall give the Optionee and all the then
holders of such Option Shares at least 30 days prior written notice of
the filing of such registration statement. If requested by the
Optionee or by any such holder in writing within 20 days after receipt
of any such notice, the Company shall, at the Company's sole expense
(other than the fees and disbursements of counsel for the Optionee or
such holder, the underwriting discounts, if any, payable in respect of
the Option Shares sold by the Optionee or any such holder and any
share of fees required by the "blue sky" laws of the state in which
the Optionee or any such holder reside), register or qualify the
Option Shares to the extent requisite to permit the public offering
and sale of the Option Shares through the facilities of all
appropriate securities exchanges and the over-the-counter market, and
will use its best efforts through its officers, directors, auditors
and counsel to cause such registration statement to become effective
as promptly as practicable.
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Notwithstanding the foregoing, if the managing underwriter of any such
offering shall advise the Company in writing that, in its opinion, the
distribution of all or a portion of the Option Shares requested to be
included in the registration statement concurrently with the
securities being registered by the Company would materially adversely
affect the distribution of such securities by the Company for its own
account, then the Optionee or any such holder who shall have requested
registration of the Option Shares shall delay the offering and sale of
such Option Shares (or the portions thereof so designated by such
managing underwriter) for such period, not to exceed 90 days, as the
managing underwriter shall request, provided that no such delay shall
be required as to any Option Shares if any securities of the Company
are included in such registration statement for the account of any
person other than the Company and the Optionee or any such holder
unless the securities included in such registration statement for such
other person shall have been reduced pro rata to the reduction of the
Option Shares which were requested to be included in such
registration.
b. If at any time after July 31, 1997, the Company shall
receive a written request from the Optionees who, in the aggregate,
own (or upon exercise of this Option will own) a majority of the total
Option Shares issuable upon exercise of this Option, the Company
shall, as promptly as practicable, prepare and file with the
Commission a registration statement sufficient to permit the public
offering and sale of the Option Shares through the facilities of all
appropriate securities exchanges and the over-the-counter market, and
will use its best efforts through its officers, directors, auditors
and counsel to cause such registration statement to become effective
as promptly as practicable; provided, however, that (i) the Company
shall only be obligated to file and obtain effectiveness of one such
registration statement and (ii) in the event the Option Shares are
registered pursuant to paragraph 5.a. above, then the rights granted
to the Option holder under this paragraph 5.b. shall be extinguished,
void and of no further force or effect. All expenses incurred in
connection with such registration, including fees and expenses
incurred for preparation, printing, filing and distribution of the
registration statement and related documents; issuance and sale of the
Option Shares; qualification of the Option Shares under state "blue
sky" or securities laws; legal and accounting fees and disbursements;
and all filing fees payable to the Securities and Exchange Commission,
the National Association of Securities Dealers, Inc. and state
jurisdictions, shall be borne by the Company.
c. In the event of a registration pursuant to the
provisions of this paragraph 5, the Company shall use its best efforts
to cause the Option Shares so registered to be registered
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or qualified for sale under the securities or blue sky laws of such
jurisdictions as the Optionee or such holders may reasonably request;
provided, however, that the Company shall not be required to qualify
to do business in any state by reason of this paragraph 5(c) in which
it is not otherwise required to qualify to do business.
d. The Company shall keep effective any registration or
qualification contemplated by this paragraph 5 and shall from time to
time amend or supplement each applicable registration statement,
preliminary prospectus, final prospectus, application, document and
communication for such period of time as shall be required to permit
the Optionee or such holders to complete the offer and sale of the
Option Shares covered thereby. The Company shall in no event be
required to keep any such registration or qualification in effect for
a period in excess of nine months from the date on which the Optionee
and such holders are first free to sell such Option Shares; provided,
however, that if the Company is required to keep any such registration
or qualification in effect with respect to securities other than the
Option Shares beyond such period, the Company shall keep such
registration or qualification in effect as it relates to the Option
Shares for so long as such registration or qualification remains or is
required to remain in effect in respect of such other securities.
e. In the event of a registration pursuant to the
provisions of this paragraph 5, the Company shall furnish to the
Optionee and to each such holder such number of copies of the
registration statement and of each amendment and supplement thereto
(in each case, including all exhibits), such reasonable number of
copies of each prospectus contained in such registration statement and
each supplement or amendment thereto (including each preliminary
prospectus), all of which shall conform to the requirements of the Act
and the rules and regulations thereunder, and such other documents, as
the Optionee or such holders may reasonably request in order to
facilitate the disposition of the Option Shares included in such
registration.
6. Upon receipt by the Corporation of evidence satisfactory to
it (in the exercise of its reasonable discretion) of the ownership of and the
loss, theft, destruction, or mutilation of this Option, the Corporation will
execute and deliver, in lieu thereof, a new Option of like tenor.
7. This Option shall not entitle the Optionee to any of the
rights of shareholders or to any dividend declared on the Common Stock unless
the Option is exercised and the Option Shares purchased prior to the record
date fixed by the Board of Directors of the Company for the determination of
holders of Common Stock entitled to such dividend or other right.
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8. All notices and other communications from the Corporation to
the owner of this Option shall be mailed by first class, certified mail,
postage prepaid, to the address furnished to the Corporation in writing by the
owner of this Option.
IN WITNESS WHEREOF, the Company has caused this Option to be signed by
its duly authorized officers.
Dated: July 30, 1996 SWISHER INTERNATIONAL, INC.
/S/ W. THOMAS REEDER /S/ PATRICK L. SWISHER
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Secretary President
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ELECTION TO PURCHASE
The undersigned hereby elects irrevocably to exercise the within
Option and to purchase ___________ shares of Common Stock of Swisher
International, Inc., and hereby makes payment of $_____________ (at the rate of
$_____ per share) in payment of the Exercise Price pursuant hereto. Please
issue the shares as to which this Option is exercised in accordance with the
instructions given below.
Dated:_____________, 19___
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(Optionee's Name)
By:
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Title:
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INSTRUCTIONS FOR REGISTRATION OF OPTION SHARES
Name
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(Print in Block Letters)
Address
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TRANSFER OF THIS OPTION IS LIMITED AS DESCRIBED IN SECTION 3 HEREOF.
ASSIGNMENT
The undersigned, for value received, does hereby sell, assign and
transfer unto _______________________________ the right to purchase __________
shares of Common Stock of Swisher International, Inc., evidenced by the within
Option, and does hereby irrevocably constitute and appoint
________________________ attorney to transfer such right on the books of
Swisher International, Inc., with full power of substitution in the premises.
Dated: _______________, 199_.
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(Optionee's Name)
By:
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Title:
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NOTICE: THE SIGNATURE TO THE ELECTION TO PURCHASE OR ASSIGNMENT MUST CORRESPOND
WITH THE NAME AS WRITTEN UPON THE FACE OF THE WITHIN OPTION IN EVERY PARTICULAR
WITHOUT ALTERATION OR ENLARGEMENT OR ANY CHANGE WHATSOEVER. SIGNATURE(S) MUST
BE GUARANTEED BY AN ELIGIBLE GUARANTOR INSTITUTION WHICH IS A PARTICIPANT IN A
SECURITIES TRANSFER ASSOCIATION RECOGNIZED PROGRAM.
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Signature Guarantee