Exhibit 2
AGREEMENT
This Agreement ("Agreement") is made and entered into as of August
14, 2003, by and between Xxxxxxx Xxxxxx, an individual resident of the
state of Colorado ("Xxxxxx") and SunAir Electronics, Inc., a Florida
corporation ("SunAir").
WHEREAS, Xxxxxx proposes to acquire certain shares of SunAir (the
"Acquisition") held by the Xxxxxx Uricho, Jr. Revocable Living Trust,
SunTrust Bank South Florida and Xxxxxxx Uricho, Trustees (the "Trust").
WHEREAS, the Trust owns approximately 54% of SunAir and public
shareholders own approximately 46% of SunAir on an undiluted basis; and
Xxxxxx desires that the Board of Directors of SunAir, approve the
Acquisition in order to avoid the adverse voting rights consequences which
otherwise would result under the Florida Control Share Act, Fla.
Stat.ss.607.0902; and
WHEREAS, SunAir desires that Xxxxxx provide certain commitments to
ensure that the interests of the SunAir minority shareholders are protected,
including by means of ensuring the continuity of the Board of Directors and
management; and
NOW, THEREFORE, in consideration of the premises and agreement and
covenants contained herein, the parties hereto do hereby agree as follows:
1. Covenants. Based on the fact that the Board of Directors of SunAir
has conditionally approved the Acquisition, Xxxxxx agrees to take all
necessary action, to the extent under his control, to implement the
following on and after the effective date of the Acquisition.
(a) That the existing Board of Directors of SunAir remain as currently
comprised and complete their terms of office, with the exception that: (i)
Xxxxxxx Uricho shall resign on the effective date of the Acquisition, and on
such date Xxxxxx shall be named by the Board of Directors to complete her
term of office, and (ii) the Board of Directors may be expanded by up to two
(2) additional members in connection with acquisitions that may be completed
by SunAir. Following the expiration of the current term of the Board of
Directors in January, 2004, for the one (1) year period following the
current term, two (2) of the members of the current Board of Directors shall
remain as members of the Board of Directors and further that for the one (1)
year term after such term (or the second year after the expiration of the
current term), one (1) of the members of the current Board of Directors
shall be a member of the Board of Directors.
(b) That the indemnity protections provided by the existing Articles of
Incorporation and bylaws of SunAir shall not be amended to lesson or
decrease indemnity provided by SunAir to its officers and directors.
(c) That the cash currently held by SunAir shall be retained and utilized
as needed for operations of SunAir and not used for repayment of any
indebtedness owed by Xxxxxx or any other third party.
2. Control Share Acquisition Statute. SunAir hereby confirms that it has
taken any and all actions, including without limitation the conditional
approval by the Board of Directors of SunAir, necessary or appropriate in
order to opt out of or otherwise render the Florida Control Share
Acquisition Statute, Fla. Stat.ss.607.0902, inapplicable to the direct or
indirect acquisition by Xxxxxx of the shares of SunAir held by the Trust
immediately prior to the consummation of the Acquisition and otherwise cause
such acquisition not to constitute a "control share acquisition" under such
statute.
3. Mutual Representations and Warranties. Each of SunAir and Xxxxxx
represents and warrants to the other party to this Agreement as follows:
(i) there is nothing in any agreement such party has entered into that in
any way will limit its ability to perform all of the obligations undertaken
by it under this Agreement; (ii) such party is not a party to any
agreement, understanding or arrangement, direct or indirect, which conflicts
with any provisions of this Agreement; and (iii) such party has duly
authorized, executed and delivered this Agreement and (assuming the due
authorization, execution and delivery of this Agreement by the other parties
hereto) constitutes a valid and binding obligation of such party.
4. Right to Injunction. In the event any party to this Agreement
breaches any provision contained in this Agreement, each of the parties
acknowledge that a remedy at law for damages will be inadequate and that the
parties seeking to enforce this Agreement will be entitled to an injunction
to prevent prospective or continuing breaches hereof.
5. Term. The provisions of this Agreement shall survive until the three-
year anniversary of the effective date of the Acquisition.
6. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Florida.
7. Severability. The invalidity of any one or more clauses or sections
contained in this Agreement shall not affect the enforceability of the
remaining portions of this Agreement or any part thereof, all of which are
inserted conditionally on their being valid in law and, in the event that
any one or more of the clause or sections contained in this Agreement shall
be declared invalid, this Agreement shall be construed as if such invalid
clauses or sections had not been inserted.
8. Waivers. The waiver by a party hereto of a breach or violation of any
term or provision of this Agreement shall not operate nor be construed as a
waiver of any subsequent breach or violation.
9. Entire Agreement. Except for the Confidentiality Agreement dated
June 24, 2003, this Agreement represents the entire understanding and
agreement among the parties with respect to the subject matter hereof, and
supersedes all other agreements, negotiations, understandings and
representations between such parties with respect to the subject matter
hereof.
10. Counterparts. This Agreement may be executed in two or more
counterparts, all of which shall be considered one and the same agreement
and shall become effective when two or more counterparts have been signed by
each of the parties and delivered to the other parties, it being understood
that all parties need not sign the same counterparts.
(SIGNATURES FOLLOW ON ATTACHED PAGE)
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the
date first above written.
/s/
Xxxxxxx Xxxxxx, Individually
SunAir Electronics, Inc.
By:/s/
Name: Xxxxxxx X. Xxxxxx
Title: Treasurer/CFO
