AMENDMENT NO. 1 TO SHARE EXCHANGE AGREEMENT
Exhibit
2.2
AMENDMENT
NO. 1 TO SHARE EXCHANGE AGREEMENT
THIS
AMENDMENT NO. 1 TO SHARE EXCHANGE AGREEMENT (this “Amendment”)
is
made and entered into as of April 30, 2007, by and among CTK WINDUP
CORPORATION, a California corporation (“CTK”);
and
XXXXXXXXXX, a California corporation (“Xxxxxxxxxx”).
R
E C I T A L S
A. CTK
and
Xxxxxxxxxx have executed a Share Exchange Agreement dated as of January 31,
2007 (the “Exchange
Agreement”).
B. CTK
and
Xxxxxxxxxx desire to amend certain provisions of the Exchange Agreement as
set
forth below.
NOW
THEREFORE, in consideration of the foregoing premises and the respective
promises and agreements of the parties set forth herein, the parties hereto
agree as follows:
1. Definitions.
Capitalized terms used herein and not otherwise defined herein shall have the
respective meanings ascribed thereto in the Exchange Agreement.
2. Amendments.
2.1 The
term
“Disclosure
Document,”
together with its corresponding definition, contained in Article I of the
Exchange Agreement is hereby deleted in its entirety.
2.2 Section
3.2(i) of the Exchange Agreement is hereby amended by deleting the reference
to
“Article
XI”
and
replacing it with “Article
IX.”
2.3 Section
3.3(a)(iii) of the Exchange Agreement is hereby amended by deleting such section
in its entirety and inserting in its place the following:
“(a)(iii)
evidence, in form and substance reasonably satisfactory to CTK, that each of
the
Preferred Repurchase and the Warrant Repurchase has closed or will close
simultaneously with or immediately after the Closing;”
2.4 Section
4.21 of the Exchange Agreement is hereby amended by deleting such section in
its
entirety and inserting in its place the following:
“4.21 Environmental
Matters.
Xxxxxxxxxx is in compliance in all material respects with all Environmental
Laws. There is no Action pending before any court, Governmental Body or board
or
other forum or threatened by any person or entity (i) for noncompliance by
Xxxxxxxxxx with any Environmental Law (ii) relating to the release into the
environment by Xxxxxxxxxx of any pollutant, toxic or hazardous material or
waste
generated by Xxxxxxxxxx, whether or not occurring at or on a site owned, leased
or operated by Xxxxxxxxxx. Except as identified on Schedule 4.21,
there
has not been by Xxxxxxxxxx, nor to the knowledge of Xxxxxxxxxx has there been
at
all, any past, storage, disposal, generation, manufacture, refinement,
transportation, production or treatment of any hazardous materials or substances
at, upon or from the facilities occupied or used by Xxxxxxxxxx and any other
real property presently or formerly owned by, used by or leased to or by
Xxxxxxxxxx, any predecessor of Xxxxxxxxxx (collectively, the “Property”).
To
the knowledge of Xxxxxxxxxx, neither Xxxxxxxxxx nor any properties owned or
operated by Xxxxxxxxxx has been or is in violation or is otherwise liable under,
any Environmental Law. To the knowledge of Xxxxxxxxxx, there are no
asbestos-containing materials, underground storage tanks or polychlorinated
biphenyls (PCBs) located on the Property. To the knowledge of Xxxxxxxxxx, there
has been no spill, discharge, leak, emission, injection, disposal, escape,
dumping or release of any kind on, beneath or above the Property or into the
environment surrounding such Property of any hazardous materials or substances
in violation of any Environmental Law or requiring any remedial action. To
the
knowledge of Xxxxxxxxxx, Xxxxxxxxxx has all permits, registrations, approvals
and licenses required by any Governmental Body under any Environmental Law
to be
obtained by Xxxxxxxxxx in connection with the conduct of the business of
Xxxxxxxxxx as presently conducted.”
1
2.5 Section
5.4(e) of the Exchange Agreement is hereby amended by deleting the reference
to
the term “Disclosure Document” contained therein.
2.6 Section
7.11 of the Exchange Agreement is hereby amended by deleting all references
to
the term “Disclosure Document” contained therein.
2.7 Section
9.10 of the Exchange Agreement is hereby amended by deleting the reference
to
“$350,000” and replacing it with “$200,000.”
2.8 Section
9.15 of the Exchange Agreement is hereby amended by deleting such section in
its
entirety and inserting in its place the following:
“9.15 Preferred
Repurchase and Warrant Repurchase.
Prior
to, concurrent with, or immediately after the Closing, Xxxxxxxxxx shall have
(i)
repurchased all shares of Preferred Stock held by the Preferred Shareholder,
and
(ii) repurchased all shares of Common Stock and all Warrants held by the
Warrantholder.”
2.9 Section
11.1(c) of the Exchange Agreement is hereby amended to delete the reference
to
“May 1, 2007” and replacing it with “May 31, 2007.”
3. Miscellaneous.
Except
as modified and amended pursuant to this Amendment, the Exchange Agreement
shall
remain in full force and effect. This Amendment may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which taken
together shall constitute one and the same instrument. This Amendment will
become binding when one or more counterparts hereof, individually or taken
together, will bear the signatures of all the parties reflected hereon as
signatories.
2
IN
WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly
executed as of the day and year first above written.
|
CTK
WINDUP CORPORATION,
a
California corporation
|
|
| By: /s/ J. Xxxxxxx Xxxxxxx | |
|
J.
Xxxxxxx Xxxxxxx, President
|
|
|
XXXXXXXXXX,
a
California corporation
|
|
| By: /s/ Xxxxx Xxxxxxxxxx | |
|
Xxxxx Xxxxxxxxxx,
President
and Chief Executive Officer
|
Pursuant
to the authority granted to the undersigned in Section 12.2 of the Exchange
Agreement, by execution of this Amendment below by the undersigned, the
Shareholders, Warrantholders and Optionholders shall be deemed to have executed
this Amendment as of the day and year first above written.
|
SHAREHOLDERS,
WARRANTHOLDERS AND
OPTIONHOLDERS
OF XXXXXXXXXX
|
|
| By: /s/ Xxxxx Xxxxxxxxxx | |
|
Xxxxx
Xxxxxxxxxx,
Attorney-in-Fact
|
3
