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Exhibit 2.3
EXCHANGE AGREEMENT
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 Ross
Friedman Ference LLP, 61 Broadway, New York, New York 10006,
on February __, 2008 (hereinafter the “Closing
Date”).
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.
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.
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.
Sectio
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