EXCHANGE AGREEMENT
Exhibit
2.3
This EXCHANGE AGREEMENT, dated as of
February 13, 2008 (this “Agreement”), is by and among TriCord Hurricane
Holdings, Inc., a Nevada corporation (“THH”), TriCord Hurricane Products, Inc.
(“THH”), the holders of THP common stock listed on Schedule A annexed
hereto (the “Shareholders”).
WITNESSETH:
WHEREAS, the Common Shareholders are
the owners of an aggregate of 4,761,962 shares of common stock, no
par value per share (the “Shares”), of THP, of which 4,791,962 shares of common
stock are validly issued and outstanding;
WHEREAS, the Common Shareholders desire
to exchange the Common Shares for 4,791,962 shares of common stock, $.0001 par
value per share, of THH (“New Shares”);
WHEREAS, the respective Boards of
Directors of THP and THH deem it advisable and in the best interests of THP and
THH, respectively, and their respective shareholders, to consummate the
transactions contemplated by this Agreement upon the terms and conditions set
forth herein;
NOW, THEREFORE, in consideration of the
mutual promises, covenants and agreements set forth herein and in reliance upon
the undertakings, representations, warranties and indemnities contained herein,
THP, THH and the Shareholders hereby agree as follows:
ARTICLE
1
EXCHANGE
OF SHARES; CLOSING
Section
1.1 Sale of
Shares. Subject to the terms and conditions herein stated, the
Shareholders agree at the Closing to exchange with full title guarantee,
transfer, assign and deliver to THH, and THH agrees to acquire from the
Shareholders, the Shares, free and clear of any and all liens.
Section
1.2 Consideration for
Shares. In consideration for its acquisition of the Shares,
THH agrees at the Closing to issue and deliver the New Shares to the
Shareholders, in accordance with Schedule A attached
hereto.
Section
1.3 Time and Place of
Closing. The closing of the transactions contemplated by this
Agreement (the “Closing”) is taking place simultaneously with the execution of
this Agreement, at the offices of Sichenzia Xxxx Xxxxxxxx Xxxxxxx LLP, 00
Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, on February __, 2008 (hereinafter the
“Closing Date”).
1
ARTICLE
2
REPRESENTATIONS
AND WARRANTIES OF THP
THP represents and warrants to THH as
of the date hereof as follows:
Section
2.1 Organization. THP
is a corporation duly organized, validly existing and in good standing under the
laws of the State of Florida, and has all requisite corporate power and
authority to own its properties and carry on its business as now being
conducted.
Section
2.2 Authority;
Enforceability. THP has full legal right, power and authority,
to execute, deliver and perform this Agreement and to consummate the
transactions contemplated hereby. This Agreement has been duly
authorized, executed and delivered by THP and constitutes, and each other
agreement, instrument or documents executed or to be executed by THP in
connection with the transactions contemplated hereby has been duly authorized,
executed and delivered by THP and constitutes a valid and legally binding
obligation of THP enforceable against THP in accordance with their respective
terms, except as (a) enforceability may be limited by applicable bankruptcy,
insolvency, fraudulent transfer, moratorium or similar laws from time to time in
effect affecting creditors’ rights generally and (b) the availability of
equitable remedies may be limited by equitable principles of general
applicability.
Section
2.3 No
Conflict. Neither the execution and the delivery of this
Agreement by THP, nor the consummation of the transactions contemplated hereby
(a) violate, conflict with, or result in a breach of any provisions of, (b)
constitute a default (or an event which, with notice or lapse of time or both,
would constitute a default) under, (c) result in the termination of or
accelerate the performance required by, (d) result in the creation of any lien
upon the Shares or under any of the terms, conditions or provisions of the
Articles of Incorporation or Bylaws of THP or, to any material extent, under the
terms and conditions of any note, bond, mortgage, indenture, deed of trust,
lease, license, loan agreement or other instrument or obligation to or by which
either THP, the Shareholders or any of their assets are bound, or (e) to any
material extent, violate any Applicable Law binding upon THP or any of its
assets.
ARTICLE
3
REPRESENTATIONS
AND WARRANTIES OF THE SHAREHOLDER
Section
3.1 Ownership. The
Shareholder is the sole record and beneficial owner of the Shares in the amounts
set forth in Schedule
A attached hereto. The Shareholder has good and marketable
title to the Shares and the absolute right to deliver the Shares in accordance
with the terms of this Agreement, free and clear of all liens. The
transfer of the Shares to THH in accordance with the terms of this Agreement
transfers good and marketable title to the Shares to THH free and clear of all
liens, restrictions, rights, options and claims of every kind.
Section
3.2 Authority;
Enforceability. The Shareholder has full legal right, power and
authority, to execute, deliver and perform this Agreement and to consummate the
transactions contemplated hereby. This Agreement has been duly
authorized, executed and delivered by the Shareholder and constitutes, and each
other agreement, instrument or documents executed or to be executed the
Shareholder in connection with the transactions contemplated hereby has been
duly authorized, executed and delivered the Shareholder and
constitutes a valid and legally binding obligation of the Shareholder
enforceable against the Shareholder in accordance with their
respective terms, except as (a) enforceability may be limited by applicable
bankruptcy, insolvency, fraudulent transfer, moratorium or similar laws from
time to time in effect affecting creditors’ rights generally and (b) the
availability of equitable remedies may be limited by equitable principles of
general applicability.
2
Section
3.3 No
Conflict. Neither the execution and the delivery of this
Agreement by the Shareholder, nor the consummation of the
transactions contemplated hereby (a) violate, conflict with, or result in a
breach of any provisions of, (b) constitute a default (or an event which, with
notice or lapse of time or both, would constitute a default) under, (c) result
in the termination of or accelerate the performance required by, (d) result in
the creation of any lien upon the Shares under any of the terms,
conditions or provisions of the Articles of Incorporation or Bylaws of the
Shareholder or, to any material extent, under the terms and conditions of any
note, bond, mortgage, indenture, deed of trust, lease, license, loan agreement
or other instrument or obligation to or by which the Shareholder or
any of its assets are bound, or (e) to any material extent, violate any
Applicable Law binding upon the Shareholder or any of its
assets.
Section
3.4. Investment
Representation. The Shareholder acknowledges that
the New Shares are restricted securities, that
such Shareholder is acquiring the New Shares for his own
account with the present intention of holding the New Shares for
purposes of investment and not with a view to their distribution within the
meaning of the Securities Act of 1933, as amended and that the
New Shares will bear a legend to such
effect. The Shareholder has relied solely on his
independent investigation in making the decision to purchase the
New Shares. The Shareholder’s determination to exchange
its Shares was made independent of, and was not affected by, any
statements or opinions (or the lack thereof) regarding the advisability of the
purchase or as to the properties, business, prospects or condition of THH
(financial or other) which may have been made or given by THH or its
shareholders.
Section
3.5 Accredited
Investor. The Shareholder
is an “accredited investor” within the meaning of Rule 501 promulgated under the
Securities Act. The Shareholder is in a financial position
to hold THH’s Stock and is able to bear the economic risk and
withstand a complete loss of the Shareholder’s investment in
THH’s Stock. The Shareholder recognizes that
THH’s Stock involves a high degree of
risk. The Shareholder is a sophisticated investor, is able
to fend for itself in the transaction contemplated by this Agreement, and has
such knowledge and experience in financial and business matters that the
Shareholder is capable of evaluating the merits and risks of the prospective
investment in THH’s Stock.
ARTICLE
4
REPRESENTATIONS
AND WARRANTIES OF THH
THH represents and warrants to THP,
the Shareholders as of the date hereof as follows:
Section
4.1 Organization. THH
is a corporation duly organized, validly existing and in good standing under the
laws of Florida and has all requisite corporate power and authority to own its
properties and carry on its business as now being conducted.
3
Section
4.2 Authority;
Enforceability. THH has the requisite corporate power and
authority to execute and deliver this Agreement and to carry out its obligations
hereunder. The execution, delivery and performance of this Agreement
and the consummation of the transactions contemplated hereby have been duly
authorized by all necessary corporate action on the part of THH and no other
corporate proceedings on the part of THH are necessary to authorize this
Agreement.
Section
4.3 THH Stock. All
shares of THH Stock to be issued pursuant to this Agreement will be, when
issued, duly authorized, validly issued, fully paid and
non-assessable.
Section
4.4 Investment
Representation. THH acknowledges that the Shares and are
restricted securities, that THH is acquiring the Shares for its own
account with the present intention of holding the Shares for purposes
of investment and not with a view to their distribution within the meaning of
the Securities Act of 1933, as amended. THH has relied solely on its
independent investigation in making the decision to purchase
the Shares. THH’s determination to purchase the Shares was
made independent of, and was not affected by, any statements or opinions (or the
lack thereof) regarding the advisability of the purchase or as to the
properties, business, prospects or condition (financial or other) of THH which
may have been made or given by THH, the Shareholders.
ARTICLE
5
MISCELLANEOUS
Section
5.1 Survival of Representations,
Warranties and Agreements. The representations, warranties, covenants and
agreements in this Agreement or in any instrument delivered pursuant to this
Agreement shall survive the Closing and shall not be limited or affected by any
investigation by or on behalf of any party hereto.
Section
5.2. Further
Assurances. Each of THP, THH the Shareholders will
use its, his or her, as the case may be, best efforts to take all action and to
do all things necessary, proper or advisable on order to consummate and make
effective the transactions contemplated by this Agreement.
Section
5.3 Notices. All
notices hereunder must be in writing and shall be deemed to have been given upon
receipt of delivery by: (a) personal delivery to the designated individual, (b)
certified or registered mail, postage prepaid, return receipt requested, (c) a
nationally recognized overnight courier service (against a receipt therefor) or
(d) facsimile transmission with confirmation of receipt. For notice
to be valid to the Shareholder, it must also be emailed to the Shareholder at
the e-mail address listed below. All such notices must be addressed
as follows or such other address as to which any party hereto may have notified
the other in writing:
Section
5.4 Headings;
Gender. When a reference is made in this Agreement to a
section, exhibit or schedule, such reference shall be to a section, exhibit or
schedule 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. All
personal pronouns used in this Agreement shall include the other genders,
whether used in the masculine, feminine or neuter gender, and the singular shall
include the plural and vice versa, whenever and as often as may be
appropriate.
4
Section
5.5 Entire Agreement; No Third
Party Beneficiaries. This Agreement (including the documents,
exhibits and instruments referred to herein) (a) constitutes the entire
agreement and supersedes all prior agreements, and understandings and
communications, both written and oral, among the parties with respect to the
subject matter hereof, and (b) is not intended to confer upon any person other
than the parties hereto any rights or remedies hereunder.
Section
5.6 Governing
Law. This Agreement shall be governed and construed in
accordance with the laws of the State of New York without regard to any
applicable principles of conflicts of law.
Section
5.7 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 party.
Section
5.8 Severability. If
any term or other provision of this Agreement is invalid, illegal or incapable
of being enforced by reason of any rule of law or public policy, all other
conditions and provisions of this Agreement shall nevertheless remain in full
force and effect so long as the economic or legal substance of the transactions
contemplated hereby is not affected in any adverse manner to either
party.
Section
5.9 Appraisal
Rights. Holders of TriCord Hurricane Products common stock are
entitled to dissenters’ rights of appraisal under the Florida Business
Corporation Act. Pursuant to Section 607.1302 of the Florida Business
Corporation Act, a TriCord Hurricane Products shareholder who does not wish to
accept the shares of TriCord Hurricane Holdings, Inc. to be received pursuant to
the terms of this Share Exchange Agreement may dissent from the Share Exchange
and elect to receive the fair value of his or her shares immediately prior to
the completion of the Share Exchange. Such fair value is exclusive of
any appreciation or depreciation in anticipation of the Share Exchange, unless
such exclusion would be inequitable to TriCord Hurricane Products and its
remaining shareholders.
Section
5.9.1 Exercise of Appraisal
Rights. In order to exercise appraisal rights, a dissenting
shareholder of TriCord Hurricane Products must strictly comply with the
statutory procedures of Sections 607.1301 through 607.1333 of the Florida
Business Corporation Act, which are summarized below. A copy of the
full text of those Sections is included as Schedule B to this
Agreement. Shareholders of TriCord Hurricane
Products are urged to read Schedule B is its entirety and to condult with their
legal advisers. Each shareholder of TriCord Hurricane Products who
desires to assert his or her appraisal right sis cautioned that failure on his
or her part to adhere strictly to the requirements of Florida law in any regard
will cause a forfeiture of any appraisal rights.
The following summary of Florida law is
qualified in its entirety by reference to the full text of the applicable
provisions of the Florida Business Corporation Act included as Annex B in this
proxy statement/prospectus.
A
dissenting shareholder, who desires to exercise his or her appraisal rights,
must file with TriCord Hurricane Products, prior to the taking of the vote on
the Share Exchange, a written notice of intent to demand payment for his or her
shares if the Share Exchange is effectuated. A vote against the Share Exchange
will not alone be deemed to be the written notice of intent to demand payment
and will not be deemed to satisfy the notice requirements under the Florida
Business Corporation Act. A dissenting shareholder need not vote against the
Share Exchange, but cannot vote, or allow any nominee who holds such shares for
the dissenting shareholder to vote, any of his TriCord Hurricane Products shares
for the Share Exchange. A vote for the Share Exchange will constitute a waiver
of the shareholder’s appraisal rights. Such written notification should be
delivered either in person or by mail (certified mail, return receipt requested,
being the recommended form of transmittal) to:
TriCord
Hurricane Products, Inc.
0000
X. 00xx
Xxxxxx
Xxxxx,
XX 00000
Attn:
Xxxxxxx Xxxx
President
and Chief Executive Officer
All
such notices must be signed in the same manner as the shares are registered on
the books of TriCOrd Hurricane Products.
Within
10 days after the completion of the Share Exchange, TriCord Hurricane Holdings
must supply to each TriCord Hurricane Products shareholder who filed a notice of
intent to demand payment for his or her shares a written appraisal notice and an
appraisal election form that specifies, among other things:
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the
date of the completion of the Share Exchange;
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TriCord
Hurricane Holdings’ estimate of the fair value of the TrCord Hurricane
Products’ shares;
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where
to return the completed appraisal election form and the shareholder’s
stock certificates and the date by which they must be received by TriCord
Hurricane Products or its agent, which date may not be fewer than 40 nor
more than 60 days after the date TriCord Hurricane Products sent the
appraisal notice and appraisal election form to the shareholder;
and
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the
date by which a notice from the shareholder of his or her desire to
withdraw his or her appraisal election must be received by TriCord
Hurricane Holdings, which date must be within 20 days after the date set
for receipt by TriCord Hurricane Holdings of the appraisal election form
from the shareholder.
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5
The
form must also contain TriCOrd Hurricane Holdings’ offer to pay to the
shareholder the amount that it has estimated as the fair value of the TriCOrd
Hurricane Products’ shares, and request certain information from the
shareholder, including:
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the
shareholder’s name and address,
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the
number of shares as to which the shareholder is asserting appraisal
rights,
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whether
the shareholder voted for the Share Exchange,
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whether
the shareholder accepts the offer of TriCord Hurricane Holdings to pay its
estimate of the fair value of the TriCord Hurricane Products’ shares to
the shareholder, and
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if
the shareholder does not accept the offer of TriCord Hurricane Holdings,
the shareholder’s estimated fair value of the TriCord Hurricane Products’
shares and a demand for payment of the shareholder’s estimated value plus
interest.
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A
dissenting shareholder must send the certificate(s) representing his or her
shares with the appraisal election form. Any dissenting shareholder failing to
return a properly completed appraisal election form and his or her stock
certificates within the period stated in the form will lose his or her appraisal
rights and be bound by the terms of the Share Exchange Agreement.
Upon
returning the appraisal election form, a dissenting shareholder shall be
entitled only to payment pursuant to the procedure set forth in the applicable
sections of the Florida Business Corporation Act and shall not be entitled to
vote or to exercise any other rights of a shareholder, unless the dissenting
shareholder withdraws his or her demand for appraisal within the time period
specified in the appraisal election form.
A
dissenting shareholder who has delivered the appraisal election form and his or
her stock certificates may decline to exercise appraisal rights and withdraw
from the appraisal process by giving written notice to TriCord Hurricane
Holdings within the time period specified in the appraisal election form.
Thereafter, a dissenting shareholder may not withdraw from the appraisal process
without the written consent of TriCord Hurricane Holdings. Upon such withdrawal,
the right of the dissenting shareholder to be paid the fair value of his or her
shares will cease, and he or she will be reinstated as a
shareholder.
If
the dissenting shareholder accepts the offer of TriCord Hurricane Holdings in
the appraisal election form to pay TriCord Hurricane Holdings’ estimate of the
fair value of the TriCord Hurricane Products’ shares, payment for the shares of
the dissenting shareholder is to be made within 90 days after the receipt of the
appraisal election form by TriCord Hurricane Holdings or its agent. Upon payment
of the agreed value, the dissenting shareholder will cease to have any interest
in such shares.
A
shareholder must demand appraisal rights with respect to all of the shares
registered in his or her name, except that a record shareholder may assert
appraisal rights as to fewer than all of the shares registered in the record
shareholder’s name but which are owned by a beneficial shareholder, if the
record shareholder objects with respect to all shares owned by the beneficial
shareholder. A record shareholder must notify TriCord Hurricane Products in
writing of the name and address of each beneficial shareholder on whose behalf
appraisal rights are being asserted. A beneficial shareholder may assert
appraisal rights as to any shares held on behalf of the shareholder only if the
shareholder submits to TriCord Hurricane Products the record shareholder’s
written consent to the assertion of such rights before the date specified in the
appraisal notice, and does so with respect to all shares that are beneficially
owned by the beneficial shareholder.
6
The
current Florida Statute, Section 607.1330, addresses what should occur if a
dissenting shareholder fails to accept the offer of TriCord Hurricane Holdings
to pay the value of the shares as estimated by TriCord Hurricane Holdings, and
TriCord Hurricane Holdings fails to comply with the demand of the dissenting
shareholder to pay the value of the shares as estimated by the dissenting
shareholder, plus interest.
If
a dissenting shareholder refuses to accept the offer of TriCord Hurricane
Holdings to pay the value of the shares as estimated by TriCord Hurricane
Holdings, and TriCord Hurricane Holdings fails to comply with the demand of the
dissenting shareholder to pay the value of the shares as estimated by the
dissenting shareholder, plus interest, then within 60 days after receipt of a
written demand from any dissenting shareholder given within 60 days after the
date on which the Share Exchange was effected, TriCord Hurricane Products shall,
or at its election at any time within such period of 60 days may, file an action
in any court of competent jurisdiction in the county in Florida where the
registered office of TriCord Hurricane Products, maintained pursuant to Florida
law, is located requesting that the fair value of such shares be determined by
the court.
If
TriCord Hurricane Products fails to institute a proceeding within the
above-prescribed period, any dissenting shareholder may do so in the name of
TriCord Hurricane Holdings. A copy of the initial pleading will be served on
each dissenting shareholder. TriCord Hurricane Holdings is required to pay each
dissenting shareholder the amount found to be due within 10 days after final
determination of the proceedings, which amount may, in the discretion of the
court, include a fair rate of interest, which will also be determined by the
court. Upon payment of the judgment, the dissenting shareholder ceases to have
any interest in such shares.
The current Florida Statute, Section
607.1331, provides that the costs of a court appraisal proceeding, including
reasonable compensation for, and expenses of, appraisers appointed by the court,
shall be determined by the court and assessed against TriCord Hurricane
Holdings, except that the court may assess costs against all or some of the
dissenting shareholders, in amounts the court finds equitable, to the extent
that the court finds such shareholders acted arbitrarily, vexatiously or not in
good faith with respect to their appraisal rights. The court also may assess the
fees and expenses of counsel and experts for the respective parties, in amounts
the court finds equitable, against (i) TriCord Hurricane Holdings and in favor
of any or all dissenting shareholders if the court finds TriCord Hurricane
Holdings did not substantially comply with the notification provisions set forth
in Sections 607.1320 and 607.1322, or (ii) either TriCord Hurricane Holdings or
a dissenting shareholder, in favor of any other party, if the court finds that
the party against whom the fees and expenses are assessed acted arbitrarily,
vexatiously, or not in good faith with respect to the appraisal rights. If the
court in an appraisal proceeding finds that the services of counsel for any
dissenting shareholder were of substantial benefit to other dissenting
shareholders, and that the fees for those services should not be assessed
against TriCord Hurricane Holdings, the court may award to such counsel
reasonable fees to be paid out of the amounts awarded the dissenting
shareholders who were benefited. To the extent that TriCord Hurricane Holdings
fails to make a required payment when a dissenting shareholder accepts TriCord
Hurricane Holdings’ offer to pay the value of the shares as estimated by TriCord
Hurricane Holdings, the dissenting shareholder may xxx directly for the amount
owed and, to the extent successful, shall be entitled to recover from TriCord
Hurricane Holdings all costs and expenses of the suit, including counsel
fees.
7
Any
dissenting shareholder who perfects his or her right to be paid the fair value
of his or her shares will recognize gain or loss, if any, for federal income tax
purposes upon the receipt of cash for such shares. The amount of gain or loss
and its character as ordinary or capital gain or loss will be determined in
accordance with applicable provisions of the U.S. Tax Code.
BECAUSE OF THE COMPLEXITY OF
THE PROVISIONS OF THE FLORIDA LAW RELATING TO DISSENTERS’ APPRAISAL RIGHTS,
SHAREHOLDERS WHO ARE CONSIDERING DISSENTING FROM THE SHARE EXCHANGE ARE URGED TO
CONSULT THEIR OWN LEGAL ADVISERS.
Section
5.10 Counterparts. This
Agreement may be executed in multiple counterparts, each of which shall be
deemed an original and all of which taken together shall constitute one and the
same document.
Section
5.11 Amendment and
Modification. This Agreement may not be amended or modified
except by an instrument in writing signed by each of the parties
hereto.
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IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be signed
themselves or by their respective duly authorized officers as of the date first
written above.
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By:
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| Xxxxxxx Xxxx | |||
| Chief Executive Officer | |||
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By:
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Xxxxxxx
Xxxx
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Chief
Executive Officer
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SHAREHOLDERS:
___________________________ ______________________________
Xxxxxxx
X.
Xxxx No.
of Shares
____________________________ _______________________________
Xxxxxx X.
Xxxx No.
of Shares
____________________________ ________________________________
Xxxxx
Xxxxxxx No.
of Shares
____________________________ ________________________________
Xxxxx X.
Xxxxxx No.
of Shares
9
_____________________________ _________________________________
Xxxx
Xxxx
No. of Shares
___________________________ _________________________________
Xxxxxx X.
Xxxxxxxx No.
of Shares
____________________________ __________________________________
Xxxxxx
Xxxx
No. of Shares
Laguna
Frisco, Inc.
_____________________________ ___________________________________
By: Xxxx
Xxxxxx No.
of Shares
Title_________________________
____________________________ ____________________________________
Xxxxx
Xxxxxxxxxxx No.
of Shares
_____________________________ ____________________________________
Xxxxx
Xxxxxx
No. of Shares
_____________________________ ____________________________________
Xxxx
Xxxxxxx
No. of Shares
10
_____________________________ ______________________________________
Xxxxx
Xxxx
No. of Shares
Regent
Private Capital
______________________________ ______________________________________
By:
No. of Shares
Title:
Concordia
Financial Group
_______________________________ _______________________________________
By:
No. of Shares
Title:
________________________________ _________________________________________
Xxxxxx
XxXxxxx
No. of Shares
11
