Exhibit 2.1 Stock Purchase Agreement, dated as of January 31, 2003, by and
among Clamshell Enterprises, Inc., ShutterPort, Inc. as
"Buyer" and five individual shareholders of Clamshell
Enterprises, Inc.
STOCK PURCHASE AGREEMENT
Agreement made and entered into as of January 31, 2003, among ShutterPort, Inc.,
a Florida corporation, having an address for purposes of this agreement at 0000
Xxxxx Xxxxxxx Xxxxxxx, Xxxx Xxxxx, Xxxxxxx 00000 (hereinafter referred to as
"Buyer"), those persons listed on Exhibit A who execute this Agreement as
Sellers, having an address for purposes of this Agreement at c/o Mid-
Continental Securities Corp, 0000 Xxxxx Xxxxxxx Xxxxx, #000, Xxxxxx, Xxxxxxx
00000 (hereinafter referred to as "Seller"), and Clamshell Enterprises, Inc., a
Nevada corporation, having an address at 0000 Xxxxx Xxxxxxx Xxxxx, #000, Xxxxxx,
Xxxxxxx 00000 (hereinafter referred to as the "Company").
This Agreement sets forth the terms and conditions upon which Seller is selling
to the Buyer and the Buyer is purchasing from the Seller 3,331,000 shares of the
issued and outstanding common stock of the Company, representing approximately
92.9% of the issued and outstanding common stock of the Company (hereinafter
referred to as the "Shares"). Exhibit A attached hereto, and incorporated herein
by this reference, lists the number of Shares being sold by each of the
individuals comprising the Seller.
In Consideration of the mutual agreements contained herein, the parties hereby
agree as follows:
I. SALE OF THE SHARES
1.01 Shares being Sold. Subject to the terms and conditions of this
Agreement, the Seller is selling and transferring the Shares to the Buyer at the
closing provided for in Section 1.03 hereof (the "Closing"), free and clear of
all liens, charges, or encumbrances of whatsoever nature.
1.02 Consideration. An aggregate total of $35,000 shall be due and
payable under the terms of this Agreement for purchase of the Shares. The
purchase price shall be payable $15,000 as an xxxxxxx money deposit payable at
the time of execution of this Agreement (receipt of which is hereby
acknowledged), $10,000 in cash, wire transfer, or other form of immediately
available funds, at Closing and $10,000 through execution of a promissory note
at closing in the form attached hereto as Exhibit B.
1.03 Closing. The Closing of the transactions provided for in Section
1.04 and 1.05 shall take place at 0000 X. Xxxxxxx Xxxxxxx, Xxxxx 000, Xxxx
Xxxxx, Xxxxxxx 00000 at 2:30 P.M. on January 31, 2003, or at such other date and
time as the parties may mutually agree in writing.
1.04 Delivery by the Agent. At the Closing, the Seller shall deliver to
the Buyer (i) certificates representing the Shares, endorsed in blank and
otherwise in form acceptable for transfer on the books of the Company, with all
necessary transfer tax stamps attached, and (ii) all contracts, books and
records of the Company not previously delivered.
1.05 Delivery by the Buyer. At the Closing the Buyer shall deliver to
the Seller the payment provided for in Section 1.02 hereof.
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II. RELATED TRANSACTIONS.
2.01 Finder. Seller and Buyer acknowledge that there were no finders
with respect to the transaction contemplated herein.
2.02 Resignations. At the Closing, all of the current officers of the
Company shall deliver their resignations, effective immediately, and all of the
current directors of the Company shall deliver their resignations effective as
of the date that is 10 days after the date of mailing by the Company of a notice
to shareholders pursuant to Rule 14f-1 under the Securities Exchange Act of
1934.
2.03 Execution of Stock Exchange Agreement. Buyer is purchasing the
Shares in anticipation of the completion of a share exchange transaction between
the Company and ShutterPort, Inc., a Florida corporation. Accordingly, as soon
as reasonably possible following the Closing hereunder, the Company and
ShutterPort, Inc., shall execute an Agreement for Share Exchange Agreement
substantially in the form attached hereto as Exhibit C and incorporated herein
by this reference. In accordance with the terms of the Agreement for Share
Exchange, the Shares being purchased by Buyer shall be held by Buyer pending
closing of share exchange transaction. Immediately following closing of the
share exchange transaction, the Buyer shall deliver the Shares to the Company's
transfer agent for cancellation.
III. REPRESENTATIONS AND WARRANTIES OF COMPANY & SELLER.
The Company and Seller hereby represent and warrant as follows:
3.01 Organization, Capitalization, etc.
(a) The Company is a corporation duly organized, validly
existing, and in good standing under the laws of the State of Nevada,
and is qualified in no other state.
(b) As of the date of execution of this Agreement, the
authorized capital stock of the Company consists of 50,000,000 shares
of $0.001 par value common stock of which 3,585,900 are validly issued
and outstanding, and 5,000,000 shares of $0.01 par value preferred
stock of which no shares are issued and outstanding. Each of the
persons comprising the Seller owns the portion of the Shares specified
on Exhibit A free and clear of any liens, claims, options, charges, or
encumbrances of whatsoever nature. Each of the persons comprising the
Seller has the unqualified right to sell, assign, and deliver the
portion of the Shares specified on Exhibit A and, upon consummation of
the transactions contemplated by this Agreement, the Buyer will acquire
good and valid title to the Shares, free and clear of all liens,
claims, options, charges, and encumbrances of whatsoever nature. There
are no outstanding options or other agreements of any nature whatsoever
relating to the issuance by the Company of any shares of its capital
stock.
3.02 Authority; No Violation. The execution and delivery of this
Agreement by the Company and by the Seller, and the consummation by them of the
transactions contemplated hereby have been duly authorized. Neither the
execution and delivery of this Agreement nor the consummation of the
transactions contemplated hereby will constitute a violation or default under
any term or provision of the Certificate of Incorporation or bylaws of the
Company, or of any contract, commitment, indenture, other agreement or
restriction of any kind or character to which the Company or any of the
individuals comprising the Seller is a party or by which the Company or the
Seller is bound.
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3.03 Financial Statements. The Company has delivered to the Buyer
audited financial statements of the Company for the period ending December 31,
2002. Such financial statements are true and correct, and a fair and accurate
presentation of the financial condition and assets and liabilities (whether
accrued, absolute, contingent, or otherwise) of the Company as of the date
thereof. The audited financial statements were prepared in accordance with
generally accepted principals of accounting applied on a consistent basis.
3.04 Tax Returns. The Company has duly filed all 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 federal, state, or local taxing authorities
(including without limitation those due in respect of its properties, income,
franchises, licenses, sales, and payrolls); there are no liens upon any of the
Company's property or assets; there are not now any pending questions relating
to, or claims asserted for, taxes or assessments asserted against the Company.
3.05 Undisclosed Liabilities. Except to the extent listed in Schedule
3.05 attached hereto, or reflected or reserved against in the December 31, 2002
financial statements of the Company provided to the Buyers pursuant to Section
3.03 hereof, the Company, as of the date hereof, had no liabilities or
obligations of any nature, whether absolute, accrued, contingent, or otherwise
and whether due or to become due. Further, neither the Seller nor the Company
knows or has any reasonable ground to know of any basis for the assertion
against the Company of any liability or obligation of any nature or in any
amount not fully reflected or reserved against in the December 31, 2002, balance
sheet or Schedule 3.05 attached hereto.
3.06 Absence of Certain Changes. The Company has not since December 31,
2002, and as of the Closing will not have:
(a) Suffered any material adverse change in financial
condition, assets, liabilities, business, or prospects;
(b) Incurred any additional obligations or liabilities
(whether absolute, accrued, contingent, or otherwise) which it either
has not previously satisfied or will not satisfy at or before Closing;
(c) Paid any claim or discharged or satisfied any lien or
encumbrance or paid or satisfied any liability (whether absolute,
accrued, contingent, or otherwise) other than liabilities shown or
reflected in the Company's December 31, 2002 balance sheet or
liabilities incurred since December 31, 2002 and listed on Schedule
3.05 hereto;
(d) Declared, paid, or set aside for payment to its
stockholders any dividend or other distribution in respect of its
capital stock or redeemed or purchased or otherwise acquired any of its
capital stock or any options relating thereto or agreed to take any
such action; or
(e) Made any material change in any method of accounting or
accounting practice.
3.07 Litigation. There are no actions, proceedings, or investigations
pending or, to the knowledge of the Company or the Seller, threatened against
the Company, and neither the Company nor the Seller knows or has any reason to
know of any basis for any such action, proceedings, or investigation. There is
no event or condition of any kind or character pertaining to the business,
assets, or prospects of the Company that may materially and adversely affect
such business, assets or prospects.
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3.08 Disclosure. The Seller has disclosed to the Buyer all facts
material to the assets, prospects, and business of the Company. No
representation or warranty by the Seller contained in this Agreement, and no
statement contained in any instrument, list, certificate, or writing furnished
to the Buyer pursuant to the provisions hereof or in connection with the
transaction contemplated hereby, contains any untrue statement of a material
fact or omits to state a material fact necessary in order to make the statements
contained herein or therein not misleading or necessary in order to provide a
prospective purchaser of the business of the Company with proper information as
to the Company and its affairs.
3.09 SEC Filings. The Company filed a registration statement on Form
10SB under the Securities Exchange Act of 1934 on May 6, 2002, which was
subsequently amended by filings on Form 10SB/A 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, the Company has
filed all periodical reports required to be filed with the Securities and
Exchange Commission and as of the date hereof, is current in its filing
obligations.
3.10 Full Disclosure. The Company and Seller have provided the Buyer
with full disclosure of all material information known to them regarding the
Company and the Shares. None of the representations and warranties made herein,
or in any other certificate or memorandum furnished or to be furnished to Buyer
by the Company or by any of the individuals executing this Agreement as Seller,
contains or will contain any untrue statement of material fact, or omit any
material fact the omission of which would be misleading.
IV. REPRESENTATIONS AND WARRANTIES BY THE BUYER.
The Buyer hereby represents and warrants as follows:
4.01 Authority; No Violation. The execution and delivery of this
Agreement by Buyer and the consummation of the transactions contemplated hereby
by Buyer have been duly authorized. Neither the execution and delivery of this
Agreement nor the consummation of the transactions contemplated hereby will
constitute a violation or default under any term or provision of any contract,
commitment, indenture, other agreement or restriction of any kind or character
to which the Buyer is a party or by which Buyer is bound.
4.02 Representations Regarding the Acquisition of the Shares.
(a) The Buyer understands that the shares constitute
restricted securities as that term is defined in Rule 144 under the
Securities Act of 1933 and that such shares may not be sold or
transferred in the absence of a registration statement or an available
exemption from registration;
(b) The Buyer understands the speculative nature and risks of
investments associated with the Company and confirms that it is able to
bear the risk of the investment, and that there may not be any public
market for the Shares purchased herein;
(c) Neither the Company nor the Seller is under an obligation
to register or seek an exemption under any federal and/or state
securities acts for any sale or transfer of the Shares by the Buyer,
and Buyer is solely responsible for determining the status, in its
hands, of the shares acquired in the transaction and the availability,
if required, of exemptions from registration for purposes of sale or
transfer of the Shares;
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(d) The Buyer has had the opportunity to ask questions of the
Company and the Seller and receive additional information from the
Company to the extent that the Company possessed such information, or
could acquire it without unreasonable effort or expense necessary to
evaluate the merits and risks of any investment in the Company.
Further, the Buyer has been given: (1) all material books and records
of the Company; (2) all material contracts and documents relating to
the proposed transaction; (3) all filings made with the SEC; and, (4)
an opportunity to question the appropriate executive officers of the
Company and each of the individuals comprising the Seller.
V. SURVIVAL OF REPRESENTATIONS; INDEMNIFICATION.
5.01 Survival of Representations. All representations, warranties, and
agreements made by any party in this Agreement or pursuant hereto shall survive
the execution and delivery hereof and any investigation at any time made by or
on behalf of any party.
5.02 Indemnification by Agent. The Company and the Seller hereby agree
to indemnify the Buyer and hold it harmless from and in respect of any
assessment, loss, damage, liability, cost, and expense (including, without
limitation, interest, penalties, and reasonable attorneys' fees), imposed upon
or incurred by the Buyer resulting from a breach of any agreement,
representation, or warranty of the Company or by the Seller, including, but not
limited to, any undisclosed liabilities or obligations of the Company, whether
known by Seller or not, as described in Section 3.05 of this Agreement.
Assertion by the Buyer of its right to indemnification under this Section 5.02
shall not preclude the assertion by the Buyer of any other rights or the seeking
of any other remedies against the Company or the Seller.
5.03 Indemnification by Buyer. The Buyer hereby agrees to indemnify the
Seller and the Company, and hold them harmless from and in respect of any
assessment, loss, damage, liability, cost, and expense (including, without
limitation, interest, penalties, and reasonable attorneys' fees), imposed upon
or incurred by the Seller or the Company resulting from a breach of any
agreement, representation, or warranty of the Buyer contained herein.
VI. ADDITIONAL CONDITIONS TO CLOSING
6.01 Obligation of Buyer to Close. Buyer shall not be obligated to
close this transaction unless:
(a) Buyer is satisfied with the condition of the Company
following a due diligence review of the books, records, business and
affairs of the Company. The Company agrees to provide Buyer and its
agents complete access to all of the Company's books, records and
personnel for purposes of enabling Buyer to conduct its investigation.
(b) There are no material liabilities on the books of the
Company, other than as disclosed in the Company's financial statements
for September 30, 2002, or Schedule 3.05 hereto, and there are no
undisclosed or contingent liabilities.
(c) There have been no changes in the Company's business or
capitalization between the date of signing this Agreement and the date
of Closing, other than as described herein in Section 3.01(b).
(d) The Company has completed and filed all documentation,
reports, schedules and other information necessary to cause the Company
to be in compliance with the rules and regulations of the Securities
and Exchange Commission under the Securities Exchange Act of 1934.
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(e) The current officers and directors of the Company shall
have tendered their resignations effective as of the date of Closing,
and the current directors shall have appointed persons designated by
Buyers as successor members of the Board of Directors to fill the
vacancies created by the resignation of the current directors.
6.02 Seller's Obligation to Close. Seller shall not be obligated to
close this transaction unless following a due diligence review of the affairs of
ShutterPort, Inc., and its proposed business plan, Seller is satisfied with its
plan for completion of a business combination transaction involving the Company
in accordance with Section 2.05 hereof.
VII. SURVIVAL AND INDEMNIFICATION
7.01 Survival. The representations, warranties and covenants made by
the parties in this Agreement and in any other certificates and documents
delivered in connection herewith shall survive the Closing and shall apply until
the first anniversary of the Closing Date.
7.02 Indemnification. The Buyer shall indemnify, defend and hold
harmless the Seller, the Company and its directors, officers, employees, agents,
and representatives and the Seller and the Company shall indemnify, defend and
hold harmless the Buyer and its directors, officers, employees, agents and
representatives from and against any and all damages, claims, liabilities,
losses, costs, response costs, expenses, obligations and deficiencies, including
interest, penalties, and reasonable attorney's and other fees, arising out of or
in any way connected to any breach by any party of any of the representations,
warranties, covenants or agreements of such party set forth in this Agreement or
in any Schedule(s) furnished by or on behalf of such party under this Agreement.
The parties shall be entitled to indemnification hereunder only in respect of
claims for which notice of claim shall have been given to the indemnifying party
on or before 180 days from the Closing Date.
VIII. MISCELLANEOUS
8.01 Expenses. Each of the parties shall bear its own expenses incurred
in conjunction with the Closing hereunder.
8.02 Further Assurances. From time to time, at the request of the Buyer
and without further consideration, the Seller shall execute and transfer such
documents and take such action as the Buyer may reasonably request in order to
effectively consummate the transactions herein contemplated.
8.03 Parties in Interest. All the terms and provisions of this
Agreement shall be binding upon, shall inure to the benefit of, and shall be
enforceable by the heirs, beneficiaries, representatives, successors, and
assigns of the parties hereto.
8.04 Prior Agreements; Amendments. This Agreement supersedes all prior
agreements and understandings between the parties with respect to the subject
matter hereof. This Agreement may be amended only by a written instrument duly
executed by the parties hereto or their respective successors or assigns.
8.05 Headings. The section and paragraph headings contained in this
Agreement are for reference purposes only and shall not affect in any way the
meaning or interpretations of this Agreement.
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8.06 Confidentiality. Each party hereby agrees that all information
provided by the other party and identified as "confidential" will be treated as
such, and the receiving party shall not make any use of such information other
than with respect to this Agreement. If the Agreement shall be terminated, each
party shall return to the other all such confidential information in their por
will certify to the other party that all of such confidential information that
has not been returned has been destroyed.
8.07 Notices. All notices, requests, demands, and other communications
hereunder shall be in writing and shall be deemed to have been duly given if
delivered or mailed (registered or certified mail, postage prepaid, return
receipt requested) to the parties at their address specified herein, with a copy
sent as follows:
If to the Seller: c/o Mid-Continental Securities Corp
0000 XxxxxXxxxxxx Xxxxx #000
Xxxxxx, Xxxxxxx 00000
If to the Buyer: ShutterPort, Inc.
0000 Xxxxx Xxxxxxx Xxxxxxx
Xxxx Xxxxx, Xxxxxxx 00000
8.08 Effect. In the event any portion of this Agreement is deemed to be
null and void under any state or federal law, all other portions and provisions
not deemed void or voidable shall be given full force and effect.
8.09 Counterparts. This Agreement may be executed simultaneously in
several counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
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IN WITNESS WHEREOF, this Agreement has been duly executed and delivered
by the Buyer, the Seller and the Company on the date first above written.
SELLER: BUYER:
MID-CONTINENTAL SECURITIES CORP SHUTTERPORT, INC.
By: /S/ XXXXX XXXXXX By: /S/ XXXXXX XXXXX
Xxxxx Xxxxxx Xxxxxx Xxxxx
AMBASSADOR CAPITAL GROUP, INC.
By: /S/ XXXXX XXXXXX
By: Xxxxx Xxxxxx
By: /S/ XXXX X. XXXXXXX
By: Xxxx X. Xxxxxxx
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EXHIBIT A
TO
STOCK PURCHASE AGREEMENT
Dated January 31, 2003
LIST OF SELLERS
NAME NUMBER OF SHARES
------------------ ----------------
Ambassador Capital Group, Inc............................... 275,000
Xxxx X. Xxxxxxx ............................................ 981,000
Xxxxx Xxxxxx ............................................... 575,000
Mid-Continental Securities, Inc. ........................... 600,000
Xxxx X. Xxxxxxxxxxx ........................................ 900,000
---------
TOTAL 3,331,000
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EXHIBIT B
PROMISSORY NOTE
$10,000 January 31, 2003
FOR VALUE RECEIVED, the undersigned promises to pay to the order of
Mid-Continental Securities Corp. at 0000 XxxxxXxxxxxx Xxxxx #000, Xxxxxx,
Xxxxxxx, 00000, the sum of Ten Thousand Dollars ($10,000), without interest, as
follows:
On the 28th day of February, 2003, if not sooner paid, the entire
principal balance shall be due and payable in full.
In the event this Note is not paid in full on or before February 28,
2003, the unpaid principal balance shall thereafter bear interest at the rate of
eight percent (8%) per annum until paid in full.
In the event of default in payment of this Note, the holder of this
Note may, without notice or demand, declare the entire principal sum them
unpaid, together with accrued interest thereon, immediately due and payable. The
maker waives presentment for payment, protest and notice of protest for
nonpayment of this Note.
This Note may be entirely or partially prepaid at any time with
interest to the date of prepayment and without penalty. Partial prepayments
shall be applied first to accrued interest and then to reduction of principal.
This Note shall be interpreted, construed and enforced in accordance with
the laws of the State of Florida. In the event that litigation is required to
enforce this Note, the holder shall be entitled to recover its reasonable
attorney's fees and court costs in addition to any recovery under this Note.
MAKER:
SHUTTERPORT, INC.
By: /S/ XXXXXX XXXXX
Xxxxxx Xxxxx, President and CEO
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