Exhibit 2.2 Agreement for Share Exchange dated as of February 3, 2003, by
and among Clamshell Enterprises, Inc., and ShutterPort, Inc.
AGREEMENT FOR SHARE EXCHANGE
THIS AGREEMENT FOR SHARE EXCHANGE (this "Agreement") is dated as of
February 3, 2003, by and among CLAMSHELL ENTERPRISES, INC., a Nevada corporation
("CLAMSHELL") and SHUTTERPORT, INC., a Florida corporation ("SHUTTERPORT").
RECITALS:
WHEREAS, CLAMSHELL and SHUTTERPORT desire to complete a share exchange
transaction pursuant to which CLAMSHELL shall acquire all of the issued and
outstanding common stock of SHUTTERPORT solely in exchange for the issuance of
shares of voting stock of CLAMSHELL; and
WHEREAS, the Board of Directors of CLAMSHELL and the Board of Directors
of SHUTTERPORT have each approved the proposed transaction, contingent upon
satisfaction prior to closing of all of the terms and conditions of this
Agreement; and
WHEREAS, the parties desire to make certain representations, warranties
and agreements in connection with completion of the proposed share exchange
transaction.
NOW, THEREFORE, in consideration of the foregoing recitals, which shall
be considered an integral part of this Agreement, and the covenants, conditions,
representations and warranties hereinafter set forth, the parties hereby agree
as follows:
ARTICLE I
THE EXCHANGE
1.1 THE EXCHANGE. At the Closing (as hereinafter defined), CLAMSHELL
shall acquire all of the issued and outstanding common stock of SHUTTERPORT
(other than "Dissenting Shares," if any, as that term is defined in Section
5.2(d) hereof). Consideration to be issued by CLAMSHELL in exchange for the
SHUTTERPORT shares shall be the issuance of one share of common stock of
CLAMSHELL (the
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"Exchange Shares") for each share of SHUTTERPORT stock acquired. The Exchange
shall take place upon the terms and conditions provided for in this Agreement
and applicable state law. Exclusive of shares issuable in the future upon
exercise of warrants, options, and/or any other rights to acquire shares of
CLAMSHELL which may be outstanding following closing hereunder, after taking
into account the anticipated cancellation of 3,331,000 previously issued and
outstanding shares of CLAMSHELL, pursuant to and in accordance with the
provisions of Section 4.5 hereof, and assuming that there are no Dissenting
Shares in SHUTTERPORT, immediately after such closing there shall be a total of
approximately 6,581,562 shares of common stock of CLAMSHELL issued and
outstanding. For Federal income tax purposes, it is intended that the Exchange
shall constitute a tax-free reorganization within the meaning of Section
368(a)(1)(B) of the Internal Revenue Code of 1986, as amended (the "Code").
1.2 CLOSING AND EFFECTIVE TIME. Subject to the provisions of this
Agreement, the parties shall hold a closing (the "Closing") on (i) the first
business day on which the last of the conditions set forth in Article V to be
fulfilled prior to the Closing is fulfilled or waived or (ii) such other date as
the parties hereto may agree (the "Closing Date"), at such time and place as the
parties hereto may agree. Such date shall be the date of Exchange (the
"Effective Time").
ARTICLE II
REPRESENTATIONS AND WARRANTIES
2.1 REPRESENTATIONS AND WARRANTIES OF CLAMSHELL. CLAMSHELL represents
and warrants to SHUTTERPORT as follows:
(a) ORGANIZATION, STANDING AND POWER. CLAMSHELL is a corporation duly
organized, validly existing and in good standing under the laws of the
State of Nevada, has all requisite power and authority to own, lease
and operate its properties and to carry on its business as now being
conducted, and is duly qualified and in good standing to do business in
each jurisdiction in which the nature of its business or the ownership
or leasing of its properties makes such qualification necessary.
(b) CAPITAL STRUCTURE. As of the date of execution of this Agreement,
the authorized capital stock of CLAMSHELL consists of 50,000,000 shares
of Common Stock with a par value of $0.001 per share, of which
3,985,900 shares are currently issued and outstanding,
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and 5,000,000 shares of Preferred Stock with a par value of $0.001, of
which no shares are currently issued and outstanding. The Exchange
Shares to be issued pursuant to this Agreement shall be, when issued
pursuant to the terms of the resolution of the Board of Directors of
CLAMSHELL approving such issuance, validly issued, fully paid and
nonassessable and not subject to preemptive rights. Except as otherwise
specified herein, as of the date of execution of this Agreement, there
are no other options, warrants, calls, agreements or other rights to
purchase or otherwise acquire from CLAMSHELL at any time, or upon the
happening of any stated event, any shares of the capital stock of
CLAMSHELL whether or not presently issued or outstanding.
(c) CERTIFICATE OF INCORPORATION, BYLAWS, AND MINUTE BOOKS. The copies
of the Articles of Incorporation and of the Bylaws of CLAMSHELL which
have been delivered to SHUTTERPORT are true, correct and complete
copies thereof. The minute book of CLAMSHELL, which has been made
available for inspection, contains accurate minutes of all meetings and
accurate consents in lieu of meetings of the Board of Directors (and
any committee thereof) and of the shareholders of CLAMSHELL since the
date of incorporation and accurately reflects all transactions referred
to in such minutes and consents in lieu of meetings.
(d) AUTHORITY. CLAMSHELL has all requisite power and authority to enter
into this Agreement and to consummate the transactions contemplated
hereby. The execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby have been duly
authorized by the Board of Directors of CLAMSHELL. No other corporate
or shareholder proceedings on the part of CLAMSHELL are necessary to
authorize the Exchange, or the other transactions contemplated hereby.
(e) CONFLICT WITH OTHER AGREEMENTS; APPROVALS. The execution and
delivery of this Agreement does not, and the consummation of the
transactions contemplated hereby will not result in any violation of,
or default (with or without notice or lapse of time, or both) under, or
give rise to a right of termination, cancellation or acceleration of
any obligation or the loss of a material benefit under, or the creation
of a lien, pledge, security interest or other encumbrance on assets
(any such conflict, violation, default, right of termination,
cancellation or acceleration, loss or creation, a "violation") pursuant
to any provision of
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the Articles of Incorporation or Bylaws or any organizational document
of CLAMSHELL or, result in any violation of any loan or credit
agreement, note, mortgage, indenture, lease, benefit plan or other
agreement, obligation, instrument, permit, concession, franchise,
license, judgment, order, decree, statute, law, ordinance, rule or
regulation applicable to CLAMSHELL which violation would have a
material adverse effect on CLAMSHELL taken as a whole. No consent,
approval, order or authorization of, or registration, declaration or
filing with, any court, administrative agency or commission or other
governmental authority or instrumentality, domestic or foreign (a
"Governmental Entity") is required by or with respect to CLAMSHELL in
connection with the execution and delivery of this Agreement by
CLAMSHELL or the consummation by CLAMSHELL of the transactions
contemplated hereby.
(f) BOOKS AND RECORDS. CLAMSHELL has made and will make available for
inspection by SHUTTERPORT upon reasonable request all the books of
CLAMSHELL relating to the business of CLAMSHELL. Such books of
CLAMSHELL have been maintained in the ordinary course of business. All
documents furnished or caused to be furnished to SHUTTERPORT by
CLAMSHELL are true and correct copies, and there are no amendments or
modifications thereto except as set forth in such documents.
(g) COMPLIANCE WITH LAWS. CLAMSHELL is and has been in compliance in
all material respects with all laws, regulations, rules, orders,
judgments, decrees and other requirements and policies imposed by any
Governmental Entity applicable to it, its properties or the operation
of its businesses.
(h) SEC FILINGS. CLAMSHELL filed a registration statement on Form 10-SB
under the Securities Exchange Act of 1934 on May 6, 2002, which was
subsequently amended on June 14, 2002 and September 20, 2002. In
accordance with Section 12(g) under the 1934 Act such registration
statement became effective on or about July 5, 2002. Thereafter,
CLAMSHELL has filed all periodic reports required to be filed with the
Securities and Exchange Commission and as of the date hereof, is
current in its filing obligations.
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(i) FINANCIAL STATEMENTS AND TAX RETURNS. Copies of CLAMSHELL's audited
financial statements for the fiscal year ended December 31, 2002 and of
its tax return for the year 2001 have been delivered to SHUTTERPORT.
(j) LITIGATION. There is no suit, action or proceeding pending, or, to
the knowledge of CLAMSHELL, threatened against or affecting CLAMSHELL
which is reasonably likely to have a material adverse effect on
CLAMSHELL, nor is there any judgment, decree, injunction, rule or order
of any Governmental Entity or arbitrator outstanding against CLAMSHELL
having, or which, insofar as reasonably can be foreseen, in the future
could have, any such effect.
(k) TAX RETURNS. CLAMSHELL has duly filed any tax reports and returns
required to be filed by it and has fully paid all taxes and other
charges claimed to be due from it by any federal, state or local taxing
authorities. There are not now any pending questions relating to, or
claims asserted for, taxes or assessments asserted upon CLAMSHELL.
2.2 REPRESENTATIONS AND WARRANTIES OF SHUTTERPORT. SHUTTERPORT
represents and warrants to CLAMSHELL as follows:
(a) ORGANIZATION, STANDING AND POWER. SHUTTERPORT is a corporation duly
organized, validly existing and in good standing under the laws of the
State of Florida, has all requisite power and authority to own, lease
and operate its properties and to carry on its business as now being
conducted, and is duly qualified and in good standing to do business in
each jurisdiction in which the nature of its business or the ownership
or leasing of its properties makes such qualification necessary.
(b) CAPITAL STRUCTURE. The authorized capital stock of SHUTTERPORT
consists of 50,000,000 shares of Common Stock with no par value. As of
the date of execution of this Agreement, it has a total of 5,926,662
shares of common stock issued and outstanding. All outstanding shares
of SHUTTERPORT stock are validly issued, fully paid and nonassessable
and not subject to preemptive rights or other restrictions on transfer.
All of the issued and outstanding shares of SHUTTERPORT were issued in
compliance with all applicable securities laws. Except as otherwise
specified herein, there are no options,
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warrants, calls, agreements or other rights to purchase or otherwise
acquire from SHUTTERPORT at any time, or upon the happening of any
stated event, any shares of the capital stock of SHUTTERPORT.
(c) CERTIFICATE OF INCORPORATION, BYLAWS AND MINUTE BOOKS. The copies
of the Articles of Incorporation and of the other corporate documents
of SHUTTERPORT which have been delivered to CLAMSHELL are true, correct
and complete copies thereof. The minute books of SHUTTERPORT which have
been made available for inspection contain accurate minutes of all
meetings and accurate consents in lieu of meetings of the Board of
Directors (and any committee thereof) and of the shareholders of
SHUTTERPORT since the date of incorporation and accurately reflect all
transactions referred to in such minutes and consents in lieu of
meetings.
(d) AUTHORITY. SHUTTERPORT has all requisite power to enter into this
Agreement and, subject to approval of the proposed transaction by the
holders of at least a majority of all issued and outstanding shares
which are entitled to vote to approve the proposed transaction, has the
requisite power and authority to consummate the transactions
contemplated hereby. Except as specified herein, no other corporate or
shareholder proceedings on the part of SHUTTERPORT are necessary to
authorize the Exchange and the other transactions contemplated hereby.
(e) CONFLICT WITH AGREEMENTS; APPROVALS. The execution and delivery of
this Agreement does not, and the consummation of the transactions
contemplated hereby will not, conflict with, or result in any violation
of any provision of the Certificate of Incorporation or Bylaws of
SHUTTERPORT or of any loan or credit agreement, note, mortgage,
indenture, lease, benefit plan or other agreement, obligation,
instrument, permit, concession, franchise, license, judgment, order,
decree, statute, law, ordinance, rule or regulation applicable to
SHUTTERPORT or its properties or assets. No consent, approval, order or
authorization of, or registration, declaration or filing with, any
Governmental Entity is required by or with respect to SHUTTERPORT in
connection with the execution and delivery of this Agreement by
SHUTTERPORT, or the consummation by SHUTTERPORT of the transactions
contemplated hereby.
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(f) FINANCIAL STATEMENTS. Copies of SHUTTERPORT's audited financial
statements for the year ended December 31, 2002 have been delivered to
CLAMSHELL.
(g) BOOKS AND RECORDS. SHUTTERPORT has made and will make available for
inspection by CLAMSHELL upon reasonable request all the books of
account, relating to the business of SHUTTERPORT. Such books of account
of SHUTTERPORT have been maintained in the ordinary course of business.
All documents furnished or caused to be furnished to CLAMSHELL by
SHUTTERPORT are true and correct copies, and there are no amendments or
modifications thereto except as set forth in such documents.
(h) COMPLIANCE WITH LAWS. SHUTTERPORT is and has been in compliance in
all material respects with all laws, regulations, rules, orders,
judgments, decrees and other requirements and policies imposed by any
Governmental Entity applicable to it, its properties or the operation
of its businesses.
(i) LIABILITIES AND OBLIGATIONS. SHUTTERPORT has no material
liabilities or obligations (absolute, accrued, contingent or otherwise)
except (i) liabilities that are reflected and reserved against on the
SHUTTERPORT financial statements that have not been paid or discharged
since the date thereof and (ii) liabilities incurred since the date of
such financial statements in the ordinary course of business consistent
with past practice and in accordance with this Agreement.
(j) LITIGATION. There is no suit, action or proceeding pending, or, to
the knowledge of SHUTTERPORT threatened against or affecting
SHUTTERPORT, which is reasonably likely to have a material adverse
effect on SHUTTERPORT, nor is there any judgment, decree, injunction,
rule or order of any Governmental Entity or arbitrator outstanding
against SHUTTERPORT having, or which, insofar as reasonably can be
foreseen, in the future could have, any such effect.
(k) TAXES. SHUTTERPORT has filed or will file within the time
prescribed by law (including extension of time approved by the
appropriate taxing authority) all tax returns and reports required to
be filed with all other jurisdictions where such filing is required by
law; and SHUTTERPORT has paid, or made adequate provision for the
payment of all
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taxes, interest, penalties, assessments or deficiencies due and payable
on, and with respect to such periods. SHUTTERPORT knows of (i) no other
tax returns or reports which are required to be filed which have not
been so filed and (ii) no unpaid assessment for additional taxes for
any fiscal period or any basis therefor.
(l) LICENSES, PERMITS; INTELLECTUAL PROPERTY. SHUTTERPORT owns or
possesses in the operation of its business all material authorizations
which are necessary for it to conduct its business as now conducted.
Neither the execution or delivery of this Agreement nor the
consummation of the transactions contemplated hereby will require any
notice or consent under or have any material adverse effect upon any
such authorizations.
ARTICLE III
COVENANTS RELATING TO CONDUCT OF BUSINESS
3.1 COVENANTS OF SHUTTERPORT AND CLAMSHELL. During the period from the
date of this Agreement and continuing until the Effective Time, SHUTTERPORT and
CLAMSHELL each agree as to themselves and their related entities that (except as
expressly contemplated or permitted by this Agreement, or to the extent that the
other party shall otherwise consent in writing):
(a) ORDINARY COURSE. Each party shall carry on its respective
businesses in the usual, regular and ordinary course in substantially the same
manner as heretofore conducted.
(b) DIVIDENDS; CHANGES IN STOCK. No party shall (i) declare or pay any
dividends on or make other distributions in respect of any of its capital stock,
or (ii) repurchase or otherwise acquire, or permit any subsidiary to purchase or
otherwise acquire, any shares of its capital stock.
(c) ISSUANCE OF SECURITIES. No party shall issue, deliver or sell, or
authorize or propose the issuance, delivery or sale of, any shares of its
capital stock of any class, any voting debt or any securities convertible into,
or any rights, warrants or options to acquire, any such shares, voting debt or
convertible securities.
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(d) GOVERNING DOCUMENTS. No party shall amend or propose to amend its
Articles of Incorporation or Bylaws.
(e) NO DISPOSITIONS. Except for the transfer of assets in the ordinary
course of business consistent with prior practice, no party shall sell,
lease, encumber or otherwise dispose of, or agree to sell, lease,
encumber or otherwise dispose of, any of its assets, which are
material, individually or in the aggregate, to such party.
(f) INDEBTEDNESS. No party shall incur any indebtedness for borrowed
money or guarantee any such indebtedness or issue or sell any debt
securities or warrants or rights to acquire any debt securities of such
party or guarantee any debt securities of others other than in each
case in the ordinary course of business consistent with prior practice.
3.2 OTHER ACTIONS. No party shall take any action that would or is
reasonably likely to result in any of its representations and warranties set
forth in this Agreement being untrue as of the date made (to the extent so
limited), or in any of the conditions to the Exchange set forth in Article V not
being satisfied.
ARTICLE IV
ADDITIONAL AGREEMENTS
4.1 RESTRICTED CLAMSHELL SHARES. The Exchange Shares will not be
registered under the Securities Act, but will be issued pursuant to an exemption
from such registration requirements for transactions not involving a public
offering. Accordingly, the Exchange Shares will constitute "restricted
securities" for purposes of the Securities Act and applicable state securities
laws and the holders of Exchange Shares will not be able to transfer such shares
except upon compliance with the registration requirements of the Securities Act
and applicable state securities laws or in reliance upon an available exemption
therefrom. The certificates evidencing the Exchange Shares shall contain a
legend to the foregoing effect and the holders of such shares shall deliver at
Closing an Investment Letter acknowledging the fact that the Exchange Shares are
restricted securities and agreeing to the foregoing transfer restrictions.
4.2 ACCESS TO INFORMATION. Upon reasonable notice, CLAMSHELL and
SHUTTERPORT shall each afford to the officers, employees, accountants, counsel
and other representatives of the other company, access to all their respective
properties, books, contracts, commitments and records and, during
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such period, each of CLAMSHELL and SHUTTERPORT shall furnish promptly to the
other (a) a copy of each report, schedule, registration statement and other
document filed or received by it during such period pursuant to the requirements
of Federal or state securities laws and (b) all other information concerning its
business, properties and personnel as such other party may reasonably request.
Unless otherwise required by law, the parties will hold any such information
which is nonpublic in confidence until such time as such information otherwise
becomes publicly available through no wrongful act of either party, and in the
event of termination of this Agreement for any reason each party shall promptly
return all nonpublic documents obtained from any other party, and any copies
made of such documents, to such other party.
4.3 LEGAL CONDITIONS TO EXCHANGE. Each of CLAMSHELL and SHUTTERPORT
shall take all reasonable actions necessary to comply promptly with all legal
requirements which may be imposed on itself with respect to the Exchange and
will promptly cooperate with and furnish information to each other in connection
with any such requirements imposed upon any of them or upon any of their related
entities or subsidiaries in connection with the Exchange. Each party shall take
all reasonable actions necessary to obtain (and will cooperate with each other
in obtaining) any consent, authorization, order or approval of, or any exemption
by, any Governmental Entity or other public or private third party, required to
be obtained or made by CLAMSHELL or SHUTTERPORT or any of their related entities
or subsidiaries in connection with the Exchange or the taking of any action
contemplated thereby or by this Agreement.
4.4 CLAMSHELL BOARD OF DIRECTORS AND OFFICERS. The current directors of
CLAMSHELL shall resign as of the Closing Date after appointing successors
designated by SHUTTERPORT.
4.5 CANCELLATION OF CLAMSHELL SHARES. By execution of this Agreement,
ShutterPort hereby agrees that as soon as reasonably possible following the
closing of the Exchange, it shall surrender for cancellation the 3,331,000
shares of CLAMSHELL which it purchased pursuant to and in accordance with the
terms of the Stock Purchase Agreement dated January 31, 2003. It is hereby
acknowledged and agreed that upon cancellation of such shares they shall become
treasury stock of CLAMSHELL and shall not be considered to be part of the issued
and outstanding common stock of CLAMSHELL.
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ARTICLE V
CONDITIONS PRECEDENT
5.1 CONDITIONS TO EACH PARTY'S OBLIGATION TO EFFECT THE EXCHANGE. The
respective obligations of each party to effect the Exchange shall be conditional
upon the filing, occurring or obtainment of all authorizations, consents, orders
or approvals of, or declarations or filings with, or expirations of waiting
periods imposed by any governmental entity or by any applicable law, rule, or
regulation governing the transactions contemplated hereby.
5.2 CONDITIONS TO OBLIGATIONS OF CLAMSHELL. The obligation of CLAMSHELL
to effect the Exchange is subject to the satisfaction of the following
conditions on or before the Closing Date unless waived by CLAMSHELL:
(a) REPRESENTATIONS AND WARRANTIES. The representations and warranties
of SHUTTERPORT set forth in this Agreement shall be true and correct in
all material respects as of the date of this Agreement and (except to
the extent such representations and warranties speak as of an earlier
date) as of the Closing Date as though made on and as of the Closing
Date, except as otherwise contemplated by this Agreement, and CLAMSHELL
shall have received a certificate signed on behalf of SHUTTERPORT by
the President of SHUTTERPORT to such effect.
(b) PERFORMANCE OF OBLIGATIONS OF SHUTTERPORT. SHUTTERPORT shall have
performed in all material respects all obligations required to be
performed by it under this Agreement at or prior to the Closing Date,
and CLAMSHELL shall have received a certificate signed on behalf of
SHUTTERPORT by the President to such effect.
(c) CLOSING DOCUMENTS. CLAMSHELL shall have received such certificates
and other closing documents as counsel for CLAMSHELL shall reasonably
request.
(d) DISSENTING SHARES. The number of shares of common stock of
SHUTTERPORT with respect to which objections to the share exchange and
demands for payment of the fair value thereof shall have been made in
accordance with the provisions of Section of the Florida Revised
Statutes, and with respect to which such demands shall not have been
withdrawn with the consent of SHUTTERPORT and CLAMSHELL shall not
exceed three percent (3%) of the number of shares entitled to object
and make such demand.
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(e) CONSENTS. SHUTTERPORT shall have obtained the consent or approval
of each person whose consent or approval shall be required in
connection with the transactions contemplated hereby under any loan or
credit agreement, note, mortgage, indenture, lease or other agreement
or instrument, except those for which failure to obtain such consents
and approvals would not, in the reasonable opinion of CLAMSHELL,
individually or in the aggregate, have a material adverse effect on
SHUTTERPORT and its subsidiaries and related entities taken as a whole
upon the consummation of the transactions contemplated hereby.
SHUTTERPORT shall also have received the approval of its shareholders
in accordance with applicable law.
(f) DUE DILIGENCE REVIEW. CLAMSHELL shall have completed to its
reasonable satisfaction a review of the business, operations, finances,
assets and liabilities of SHUTTERPORT and shall not have determined
that any of the representations or warranties of SHUTTERPORT contained
herein are, as of the date hereof or the Closing Date, inaccurate in
any material respect or that SHUTTERPORT is otherwise in violation of
any of the provisions of this Agreement.
(g) PENDING LITIGATION. There shall not be any litigation or other
proceeding pending or threatened to restrain or invalidate the
transactions contemplated by this Agreement, which, in the sole
reasonable judgment of CLAMSHELL, made in good faith, would make the
consummation of the Exchange imprudent. In addition, there shall not be
any other litigation or other proceeding pending or threatened against
SHUTTERPORT, the consequences of which, in the judgment of CLAMSHELL,
could be materially adverse to SHUTTERPORT.
5.3 CONDITIONS TO OBLIGATIONS OF SHUTTERPORT. The obligation of
SHUTTERPORT to effect the Exchange is subject to the satisfaction of the
following conditions unless waived by SHUTTERPORT:
(a) REPRESENTATIONS AND WARRANTIES. The representations and warranties
of CLAMSHELL set forth in this Agreement shall be true and correct in
all material respects as of the date of this Agreement and (except to
the extent such representations speak as of an earlier date) as of the
Closing Date as though made on and as of the Closing Date,
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except as otherwise contemplated by this Agreement, SHUTTERPORT shall
have received a certificate signed on behalf of CLAMSHELL by the
President to such effect.
(b) PERFORMANCE OF OBLIGATIONS OF CLAMSHELL. CLAMSHELL shall have
performed in all material respects all obligations required to be
performed by it under this Agreement at or prior to the Closing Date,
and SHUTTERPORT shall have received a certificate signed on behalf of
CLAMSHELL by the President to such effect.
(c) SHAREHOLDER APPROVAL. Shareholders holding not less than a majority
of all issued and outstanding shares of SHUTTERPORT which are entitled
to vote to approve the proposed share exchange transaction shall have
consented to or voted in favor of completion of the proposed
transaction.
(d) OPINION OF COUNSEL FOR CLAMSHELL. SHUTTERPORT shall have received
an opinion dated the Closing Date from counsel for CLAMSHELL, in form
and substance reasonably satisfactory to SHUTTERPORT and its counsel
relating to such matters as are customarily delivered in connection
with a Exchange transaction.
(e) CLOSING DOCUMENTS. SHUTTERPORT shall have received such
certificates and other closing documents as counsel for SHUTTERPORT
shall reasonably request.
(f) CONSENTS. CLAMSHELL shall have obtained the consent or approval of
each person whose consent or approval shall be required in connection
with the transactions contemplated hereby.
(g) DUE DILIGENCE REVIEW. SHUTTERPORT shall have completed to its
reasonable satisfaction a review of the business, operations, finances,
assets and liabilities of CLAMSHELL and shall not have determined that
any of the representations or warranties of CLAMSHELL contained herein
are, as of the date hereof or the Closing Date, inaccurate in any
material respect or that CLAMSHELL is otherwise in violation of any of
the provisions of this Agreement.
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(h) PENDING LITIGATION. There shall not be any litigation or other
proceeding pending or threatened to restrain or invalidate the
transactions contemplated by this Agreement, which, in the sole
reasonable judgment of SHUTTERPORT, made in good faith, would make the
consummation of the Exchange imprudent. In addition, there shall not be
any other litigation or other proceeding pending or threatened against
CLAMSHELL the consequences of which, in the judgment of SHUTTERPORT,
could be materially adverse to CLAMSHELL.
ARTICLE VI
TERMINATION AND AMENDMENT
6.1 TERMINATION. This Agreement may be terminated at any time prior to
the Effective Time:
(a) by mutual consent of CLAMSHELL and SHUTTERPORT;
(b) by either CLAMSHELL or SHUTTERPORT if there has been a material
breach of any representation, warranty, covenant or agreement on the
part of the other set forth in this Agreement which breach has not been
cured within five (5) business days following receipt by the breaching
party of notice of such breach, or if any permanent injunction or other
order of a court or other competent authority preventing the
consummation of the Exchange shall have become final and
non-appealable; or
(c) by either CLAMSHELL or SHUTTERPORT if the Exchange shall not have
been consummated before March 31, 2003.
6.2 EFFECT OF TERMINATION. In the event of termination of this
Agreement by either SHUTTERPORT or CLAMSHELL as provided in Section 6.1, this
Agreement shall forthwith become void and there shall be no liability or
obligation on the part of any party hereto. In such event, all costs and
expenses incurred in connection with this Agreement and the transactions
contemplated hereby shall be paid by the party incurring such expenses.
6.3 AMENDMENT. This Agreement may be amended by the parties hereto, by
action taken or authorized by their respective Boards of Directors, provided no
amendment shall be made which by law
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requires approval by the shareholders of any party without such further
approval. This Agreement may not be amended except by an instrument in writing
signed on behalf of each of the parties hereto.
6.4 EXTENSION; WAIVER. At any time prior to the Effective Time, the
parties hereto, by action taken or authorized by their respective Board of
Directors, may, to the extent legally allowed, (a) extend the time for the
performance of any of the obligations or other acts of the other parties hereto,
(b) waive any inaccuracies in the representations and warranties contained
herein or in any document delivered pursuant hereto and (c) waive compliance
with any of the agreements or conditions contained herein. Any agreement on the
part of a party hereto to any such extension or waiver shall be valid only if
set forth in a written instrument signed on behalf of such party.
ARTICLE VII
GENERAL PROVISIONS
7.1 SURVIVAL OF REPRESENTATIONS, WARRANTIES AND AGREEMENTS. All of the
representations, warranties and agreements in this Agreement or in any
instrument delivered pursuant to this Agreement shall survive the Effective Time
for a period of three years from the date of this Agreement.
7.2 NOTICES. All notices and other communications hereunder shall be in
writing and shall be deemed given if delivered personally, telecopied (which is
confirmed) or mailed by registered or certified mail (return receipt requested)
to the parties at the following addresses (or at such other address for a party
as shall be specified by like notice):
(a) If to CLAMSHELL to: 0000 X. Xxxxxxx Xxxxx, Xxxxx 000
Xxxxxx, Xxxxxxx 00000
(b) If to SHUTTERPORT, to: 0000 Xxxxx Xxxxxxx Xxxxxxx
Xxxx Xxxxx, Xxxxxxx 00000
7.3 INTERPRETATION. When a reference is made in this Agreement to
Sections, such reference shall be to a Section of this Agreement unless
otherwise indicated. The headings contained in this Agreement are for reference
purposes only and shall not affect in any way the meaning or interpretation of
this Agreement. Whenever the words "include", "includes" or "including" are used
in this Agreement, they shall be deemed to be followed by the words "without
limitation". The phrase "made available" in this
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Agreement shall mean that the information referred to has been made available if
requested by the party to whom such information is to be made available.
7.4 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 counterpart.
7.5 ENTIRE AGREEMENT; NO THIRD PARTY BENEFICIARIES; RIGHTS OF
OWNERSHIP. This Agreement (including the documents and the instruments referred
to herein) constitutes the entire agreement and supersedes all prior agreements
and understandings, both written and oral, among the parties with respect to the
subject matter hereof, and is not intended to confer upon any person other than
the parties hereto any rights or remedies hereunder.
7.6 GOVERNING LAW. This Agreement shall be governed and construed in
accordance with the laws of the State of Nevada without regard to principles of
conflicts of law. Each party hereby irrevocably submits to the jurisdiction of
any Nevada state court or any federal court in the State of Nevada in respect of
any suit, action or proceeding arising out of or relating to this Agreement, and
irrevocably accept for themselves and in respect of their property, generally
and unconditionally, the jurisdiction of the aforesaid courts.
7.7 NO REMEDY IN CERTAIN CIRCUMSTANCES. Each party agrees that, should
any court or other competent authority hold any provision of this Agreement or
part hereof or thereof to be null, void or unenforceable, or order any party to
take any action inconsistent herewith or not to take any action required herein,
the other party shall not be entitled to specific performance of such provision
or part hereof or thereof or to any other remedy, including but not limited to
money damages, for breach hereof or thereof or of any other provision of this
Agreement or part hereof or thereof as a result of such holding or order.
7.8 PUBLICITY. Except as otherwise required by law or the rules of the
SEC, so long as this Agreement is in effect, no party shall issue or cause the
publication of any press release or other public announcement with respect to
the transactions contemplated by this Agreement without the written consent of
the other party, which consent shall not be unreasonably withheld.
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7.9 ASSIGNMENT. Neither this Agreement nor any of the rights, interests
or obligations hereunder shall be assigned by any of the parties hereto (whether
by operation of law or otherwise) without the prior written consent of the other
parties, except that CLAMSHELL may assign, in its sole discretion, any or all of
its rights, interests and obligations hereunder to any direct or indirect wholly
owned subsidiary of such company. Subject to the preceding sentence, this
Agreement will be binding upon, inure to the benefit of and be enforceable by
the parties and their respective successors and assigns.
IN WITNESS WHEREOF, this Agreement for Share Exchange has been signed
by the parties set forth below as of the date set forth above.
CLAMSHELL ENTERPRISES, INC.
By: /S/ XXXXX X. XXXXXXX
Xxxxx X. Xxxxxxx, President
SHUTTERPORT, INC.
By: /S/ XXXXXX XXXXX
Xxxxxx Xxxxx, President
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