Acquisition Agreement
Agreement dated as of December 6, 2001 between Raptor Investments,
Inc., a Delaware corporation ("Raptor/Buyer") on behalf of its shareholders, and
LBI PROPERTIES, INC., a Florida corporation ("LBI/Seller") on behalf of its
shareholders.
WHEREAS, Raptor desires to acquire through the issue of its common
stock all of the outstanding common stock (the "Shares") of LBI held by its
shareholders; and
WHEREAS, LBI desires to be acquired and Raptor desires to acquire all
of the common stock of LBI on the terms and conditions set forth herein;
NOW, THEREFORE, in consideration of the mutual covenants, agreements,
representations, and warranties herein contained, the parties hereby agree as
follows:
1. The Acquisition.
1.1 PURCHASE AND SALE
Subject to the terms and conditions of this Agreement, at the Closing to be held
as provided in Section 2.1, LBI shall sell the Shares to Raptor, and Raptor
shall purchase the Shares from LBI, free and clear of all Encumbrances.
1.2 PURCHASE PRICE
The aggregate purchase price to be paid for the Shares shall be Nineteen Million
Nine Hundred and Seventy Four Thousand Two Hundred and Ninety Eight (19,974,298)
Shares of the common stock of Raptor, which shall be transferred to the
shareholders of LBI on a pro-rata basis at the time of closing. It is
anticipated that this transaction will be a nontaxable event under section 368
of the IRS Code and that if not, the shareholders of LBI will pay the tax.
2. The Closing.
2.1 PLACE AND TIME.
The closing of the sale and purchase of the Shares (the "Closing") shall take
place at the offices of LBI Group, Inc., 0000 X. Xxxxxxxxxx Xxxxx #000, Xxxxx
Xxxxxxx, XX 00000 no later than the close of business (Eastern Standard Time) on
December 26, 2001, or at such other place, date and time as the parties may
agree in writing.
2.2 DELIVERIES BY LBI.
At the Closing, LBI shall deliver the following to Raptor:
(a) Certificates representing 100% of the issued and
outstanding Shares, duly endorsed for transfer to Raptor and
accompanied by any applicable stock transfer tax stamps;
(b) LBI shall cause Raptor to change those certificates for, and to
deliver to Raptor at the Closing, a certificate representing the Shares
registered in the name of Raptor
(c) All books, records and files of LBI.
2.3 DELIVERIES BY RAPTOR.
At the Closing, Raptor shall deliver the following to LBI:
(a) The shares as contemplated by section 1.
(b) The documents contemplated by Section 2.
(c) All other documents, instruments and writings required by
this Agreement to be delivered by Raptor at the Closing.
3. Conditions to Raptor's Obligations.
The obligations of Raptor to effect the Closing shall be subject to the
satisfaction at or prior to the Closing of the following conditions, any one or
more of which may be waived by Raptor:
3.1. REPRESENTATIONS, WARRANTIES AND AGREEMENTS.
(a) The representations and warranties of LBI set forth in this
Agreement shall be true and complete in all material
respects as of the Closing Date as though made at such
time,
(b) LBI shall have performed and complied in all material
respects with the agreements contained in this Agreement
required to be performed and complied with by it at or
prior to the Closing and
(c) Raptor shall have received a certificate to that effect
signed by an authorized representative of LBI.
3.2 RESIGNATIONS OF DIRECTORS.
All directors of LBI, and its Subsidiaries whose resignations shall
have been requested by Raptor before the Closing Dateshall have
submitted their resignations or been removed effective as of the
Closing Date.
4. Conditions to LBI 's Obligations.
The obligations of LBI to effect the Closing shall be subject to the
satisfaction at or prior to the Closing of the following conditions, any one or
more of which may be waived by LBI:
4.1 REPRESENTATIONS, WARRANTIES AND AGREEMENTS.
(a) The representations and warranties of Raptor set forth in
this Agreement shall be true and complete in all material
respects as of the Closing Date as though made at such
time,
(b) Raptor shall have performed and complied in all material
respects with the agreements contained in this Agreement
required to be performed and complied with by it prior to
or at the Closing; and
(c) LBI shall have received a certificate to that effect
signed by an officer of Raptor.
5. Representations and Warranties of LBI.
LBI represents and warrants to Raptor that, to the knowledge of LBI:
5.1 ORGANIZATION OF LBI; AUTHORIZATION.
LBI is a corporation duly organized, validly existing and in good standing under
the laws of Florida with full corporate power and authority to execute and
deliver this Agreement and to perform its obligations hereunder. The execution,
delivery and performance of this Agreement have been duly authorized by all
necessary corporate action of LBI and this Agreement constitutes a valid and
binding obligation of LBI, enforceable against it in accordance with its terms.
5.2 CONFLICT AS TO LBI.
Neither the execution and delivery of this Agreement nor the performance of
Raptor's obligations hereunder will (a) violate any provision of the certificate
of incorporation or by-laws of LBI; or (b)violate any statute or law or any
judgment, decree, order, regulation or rule of any court or other Governmental
Body applicable to LBI.
5.3 OWNERSHIP OF SHARES.
The delivery of certificates to Raptor and the payment to LBI will result in
Raptor's immediate acquisition of record and beneficial ownership of the Shares,
free and clear of all Encumbrances. There are no outstanding options, rights,
conversion rights, agreements or commitments of any kind relating to the
issuance, sale or transfer of any Equity Securities or other securities of LBI.
Upon closing, LBI shall become a One Hundred (100%) Percent owned subsidiary of
Raptor.
5.4 TITLE TO PROPERTIES.
Either LBI, or one of its Subsidiaries owns all the material properties and
assets that they purport to own (real, personal and mixed, tangible and
intangible), including, without limitation, all the material properties and
assets reflected in the Balance Sheet (except for property sold since the date
of the Balance Sheet in the ordinary course of business or leased under
capitalized leases), and all the material properties and assets purchased or
otherwise acquired by LBI or any of its Subsidiaries since the date of the
Balance Sheet.
5.5 BUILDINGS, PLANTS AND EQUIPMENT.
The buildings, plants, structures and material items of equipment and other
personal property owned or leased by LBI or its Subsidiaries are, in all
respects material to the business or financial condition of LBI and its
Subsidiaries, taken as a whole, in good operating condition and repair (ordinary
wear and tear excepted) and are adequate in all such respects for the purposes
for which they are being used.
5.6 ABSENCE OF CERTAIN CHANGES.
Since the date of the Balance Sheet, neither LBI nor any of its Subsidiaries
has:
(a) suffered the damage or destruction of any of its properties
or assets (whether or not covered by insurance) which is
materially adverse to the business or financial condition
of LBI and its Subsidiaries, taken as a whole, or made any
disposition of any of its material properties or assets
other than in the ordinary course of business;
(b) made any change or amendment in its certificate of
incorporation or by-laws, or other governing instruments;
(c) issued or sold any Equity Securities or other securities,
acquired, directly or indirectly, by redemption or
otherwise, any such Equity Securities, reclassified,
split-up or otherwise changed any such Equity Security,
or granted or entered into any options, warrants, calls
or commitments of any kind with respect thereto;
(d) paid, discharged or satisfied any material claim,
liability or obligation (absolute, accrued, contingent or
otherwise), other than in the ordinary course of
business;
(e) prepaid any material obligation having a maturity of more
than 90 days from the date such obligation was issued or
incurred;
(f) cancelled any material debts or waived any material
claims or rights,except in the ordinary course of
business;
5.7 NO MATERIAL ADVERSE CHANGE.
Since the date of the Balance Sheet, there has not been any material adverse
change in the business or financial condition of LBI and its Subsidiaries taken
as a whole, other than changes resulting from economic conditions prevailing in
the United States.
5.8 BROKERS OR FINDERS.
LBI has not employed any broker or finder or incurred any liability for any
brokerage or finder's fees or commissions or similar payments in connection with
the sale of the Shares to Raptor.
5.9 TRANSACTIONS WITH DIRECTORS AND OFFICERS.
LBI and its Subsidiaries do not engage in business with any Person (other than
LBI) in which any of LBI's directors or officers has a material equity interest.
No director or officer of LBI owns any property, asset or right which is
material to the business of LBI and its Subsidiaries, taken as a whole.
6. Representations and Warranties of Raptor.
Raptor represents and warrants to LBI as follows:
6.1 ORGANIZATION OF RAPTOR; AUTHORIZATION.
Raptor is a corporation duly organized, validly existing and in good standing
under the laws of Delaware, with full corporate power and authority to execute
and deliver this Agreement and to perform its obligations hereunder. The
execution, delivery and performance of this Agreement have been duly authorized
by all necessary corporate action of Raptor and this Agreement constitutes a
valid and binding obligation of Raptor, enforceable against it in accordance
with its terms.
6.2 BROKERS OR FINDERS.
Raptor has not employed any broker or finder or incurred any liability for any
brokerage or finder's fees or commissions or similar payments in connection with
any of the transactions contemplated hereby.
6.3 PURCHASE FOR INVESTMENT.
Raptor is purchasing the shares solely for its own account for the purpose of
investment and not with a view to, or for sale in connection with, any
distribution of any portion thereof in violation of any applicable securities
law.
6.4 CONFLICT AS TO RAPTOR.
Neither the execution and delivery of this Agreement nor the performance of
Raptor's obligations hereunder will:
(a) violate any provision of the certificate of incorporation
or by-laws of Raptor; or
(b) violate any statute or law or any judgment, decree, order,
regulation or rule of any court or other Governmental Body
applicable to Raptor.
6.5 MISCELLANEOUS.
Raptor is a publicly traded company which trades on the OTC:BB. Raptor has
properly filed all documentation with the SEC, NASD or other applicable bodies
necessary to become and remain a publicly traded company. There are no pending
or threatened legal or regulatory claims, demands or liabilities of any kind or
nature against Raptor or it assets, except as disclosed in filings with the
Securities and Exchange Commission. Raptor has filed all federal, state and
local income or other tax returns as required by law, and has paid all taxes
which are due, and has no tax delinquencies of any kind. There are currently
4,113,383 shares issued and outstanding in Raptor. The shares, when issued were
properly distributed under applicable securities laws, and Raptor has taken no
action to cause said stock to lose its current trading status. There are no
warrants, option agreements or pending subscription agreements whereby Raptor is
obligated to issue any additional stock to any person.
Upon closing, LBI's shareholders will receive a controlling interest in and
complete management control over Raptor by virtue of their stock ownership, and
there are no shareholder rights or agreements, or other legal impediments to the
transfer of management control of Raptor.
7. Access and Reporting; Filings With Governmental Authorities.
7.1 ACCESS.
Between the date of this Agreement and the Closing Date, LBI shall,
and shall cause LBI to
(a) Give Raptor and its authorized representatives reasonable
access to all plants, offices, warehouse and other
facilities and properties of LBI and its Subsidiaries and
to the books and records of LBI and its Subsidiaries,
(b) Permit Raptor to make inspections thereof, and
(c) Cause its officers and its advisors to furnish Raptor
with such financial and operating data and other
information with respect to the business and properties of
LBI and its Subsidiaries and to discuss with Raptor and its
authorized representatives the affairs of LBI and its
Subsidiaries, all as Raptor may from time to time
reasonably request.
7.2 EXCLUSIVITY.
From the date hereof until the earlier of the Closing or the termination of this
Agreement, LBI shall not solicit or negotiate or enter into any agreement with
any other Person with respect to or in furtherance of any proposal for a merger
or business combination involving, or acquisition of any interest in, or (except
in the ordinary course of business) sale of assets by, LBI except for the
acquisition of the Shares by Raptor.
7.3 PUBLICITY.
Between the date of this Agreement and the Closing Date, LBI and Raptor shall,
and LBI and Raptor shall cause Raptor to, discuss and coordinate with respect to
any public filing or announcement or any internal or private announcement
(including any general announcement to employees) concerning the contemplated
transaction.
7.4 CONFIDENTIALITY.
Prior to the Closing Date (or at any time if the Closing does not occur) Raptor
shall keep confidential and not disclose to any Person(other than its employees,
attorneys, accountants and advisors) or use (except in connection with the
transactions contemplated hereby) all non-public information obtained by Raptor
pursuant to Section 7.1. Following the Closing, LBI shall keep confidential and
not disclose to any Person (other than its employees, attorneys, accountants and
advisors) or use (except in connection with preparing Tax Returns and conducting
proceeds relating to Taxes) any nonpublic information relating to Raptor
Corp., and its Subsidiaries. This Section 7.4 shall not be violated by
disclosure pursuant to court order or as otherwise required by law, on condition
that notice of the requirement for such disclosure is given the other party
prior to making any disclosure and the party subject to such requirement
cooperates as the other may reasonably request in resisting it. If the Closing
does not occur, Raptor shall return to LBI, or destroy, all information it shall
have received from LBI or in connection with this Agreement and the transactions
contemplated hereby, together with any copies or summaries thereof or extracts
therefrom. LBI and Raptor shall use their best efforts to cause their respective
representatives, employees, attorneys, accountants and advisors to whom
information is disclosed pursuant to Sections 7.1 to comply with the provisions
of this Section 7.4.
8. Conduct of LBI's Business Prior to the Closing.
8.1 OPERATION IN ORDINARY COURSE.
Between the date of this Agreement and the Closing Date, LBI shall cause LBI and
its Subsidiaries to conduct their businesses in all material respects in the
ordinary course.
8.2 BUSINESS ORGANIZATION.
Between the date of this Agreement and the Closing Date, LBI shall use its
reasonable efforts, and shall cause LBI and each of its Subsidiaries to use its
respective reasonable efforts, to
(a) preserve substantially intact the business organization of
LBI and each of its Subsidiaries and keep available the
services of the present officers and employees of LBI and
each of its Subsidiaries, and
(b) preserve in all material respects the present business
relationships and good will of LBI and each of its
Subsidiaries.
8.3 CORPORATE ORGANIZATION.
Between the date of this Agreement and the Closing Date, neither Raptor or LBI
shall not cause or permit any amendment of the certificate of incorporation or
by-laws (or other governing instrument) of LBI or any of its Subsidiaries, and
shall cause LBI and each of its Subsidiaries not to:
(a) issue, sell or otherwise dispose of any of its Equity
Securities, or create, sell or otherwise dispose of any
options, rights, conversion rights or other agreements or
commitments of any kind relating to the issuance, sale or
disposition of any of its Equity Securities;
(b) sell or otherwise dispose of any Equity Securities of LBI
or any of its Subsidiaries, or create or suffer to be
created any Encumbrance thereon, or create, sell or
otherwise dispose of any options, rights, conversion rights
or other agreements or commitments of any kind relating to
the sale or disposition of any Equity Securities of LBI or
any of its Subsidiaries;
(c) reclassify, split up or otherwise change any of its
Equity Securities;
(d) be party to any merger, consolidation or other business
combination;
(e) sell, lease, license or otherwise dispose of any of its
properties or assets (including, but not limited to, rights
with respect to patents and registered trademarks and
copyrights or other proprietary rights), in an amount which
is material to the business or financial condition of LBI
and its Subsidiaries, taken as a whole, except in the
ordinary course of business.
9. Survival of Representations and Warranties;
Indemnification.
9.1 SURVIVAL.
No representation or warranty contained in this Agreement or in any certificate
or document delivered pursuant hereto shall survive the Closing,except for those
contained in Sections 5.1, 5.2, 5.3(only as to LBI).
9.2 INDEMNIFICATION BY LBI.
LBI shall indemnify and hold harmless Raptor and shall reimburse Raptor for, any
loss, liability, damage or expense (including reasonable attorneys fees)
(collectively, "Damages") arising from or in connection with
(a) any inaccuracy in any of the Surviving Representations
and Warranties of LBI in this Agreement; or
(b) any failure by LBI to perform or comply with any
agreement in this Agreement.
9.3 INDEMNIFICATION BY RAPTOR.
Raptor shall indemnify and hold harmless LBI, and shall reimburse LBI for, any
Damages arising from or in connection with
(a) any inaccuracy in any of the Surviving Representations
and Warranties of Raptor in this Agreement,
(b) any failure by Raptor to perform or comply with any
agreement in this Agreement, except that after the
Closing no claim shall be made with respect to the failure
to perform or comply with any agreement required to have
been performed or complied with prior to the Closing Date,
and
(c) any payments made by LBI after the Closing pursuant to any
guaranty by LBI of any obligation of Raptor or any of its
Subsidiaries (other than as contemplated by Section 2.4).
Raptor shall use its best efforts to obtain LBI's release
from any such guaranties.
10. Termination.
10.1 TERMINATION.
This Agreement may be terminated before the Closing occurs only as follows:
(a) By written agreement of LBI and Raptor at any time.
(b) By LBI, by notice to Raptor at any time, if one or more
of the conditions specified in Section 4 is not satisfied
at the time at which the Closing (as it may be deferred
pursuant to Section 2.1) would otherwise occur or if
satisfaction of such a condition is or becomes impossible.
(c) By Raptor, by notice to LBI at any time, if one or more of
the conditions specified in Section 3 is not satisfied at
the time at which the Closing (as it may be deferred
pursuant to Section 2.1), would otherwise occur of if
satisfaction of such a condition is or becomes impossible.
By Raptor or LBI, by notice to the other at any time after
December 26, 2001.
10.2 EFFECT OF TERMINATION.
If this Agreement is terminated pursuant to Section 10(a), this Agreement shall
terminate without any liability or further obligation of any party to another.
11. Notices.
All notices, consents, assignments and other communications under this Agreement
shall be in writing and shall be deemed to have been duly given when
(a) delivered by hand,
(b) sent by telex or telecopy (with receipt confirmed),
provided that a copy is mailed by registered mail, return
receipt requested, or
(c) received by the delivery service (receipt requested), in
each case to the appropriate addresses, telex numbers and
telecopy numbers set forth below (or to such other
addresses, telex numbers and telecopy numbers as a party
may designate as to itself by notice to the other parties).
(a) If to LBI: (b) If to Raptor:
Xxxx X. Xxxxxx Xxxx X. Xxxxxx Xx.
0000 X. Xxxxxxxxxx Xx. 0000 X. Xxxxxxxxxx Xx.
Xxxxx 000 Xxxxx 000
Xxxxx Xxxxxxx, XX 00000 Xxxxx Xxxxxxx, XX 00000
Fax No.:(000)000-0000 Fax No.: (000)000-0000
12. Miscellaneous.
12.1 EXPENSES.
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Each party shall bear its own expenses incident to the preparation, negotiation,
execution and delivery of this Agreement and the performance of its obligations
hereunder.
12.2 CAPTIONS.
The captions in this Agreement are for convenience of reference only and shall
not be given any effect in the interpretation of this Agreement.
12.3 NO WAIVER.
The failure of a party to insist upon strict adherence to any term of this
Agreement on any occasion shall not be considered a waiver or deprive that party
of the right thereafter to insist upon strict adherence to that term or any
other term of this Agreement. Any waiver must be in writing.
12.4 EXCLUSIVE AGREEMENT; AMENDMENT.
This Agreement supersedes all prior agreements among the parties with respect to
its subject matter and is intended (with the documents referred to herein) as a
complete and exclusive statement of the terms of the agreement among the parties
with respect thereto and cannot be changed or terminated orally.
12.5 COUNTERPARTS.
This Agreement may be executed in two or more counterparts, each of which shall
be considered an original, but all of which together shall constitute the same
instrument. Governing Law. This Agreement and (unless otherwise provided) all
amendments hereof and waivers and consents hereunder shall be governed by the
internal law of the State of Nevada, without regard to the conflicts of law
principles thereof.
12.6 BINDING EFFECT.
This Agreement shall inure to the benefit of and be binding upon the parties
hereto and their respective successors and assigns, provided that neither party
may assign its rights hereunder without the consent of the other except that
Raptor may assign its rights (but not its obligations) under this Agreement to
its wholly-owned Subsidiary without the consent of LBI, provided that, after the
Closing, no consent of LBI shall be needed in connection with any merger or
consolidation of Raptor with or into another entity.
Raptor Enterprises, Inc.
By:/S/ XXXX X. XXXXXX, XX.
---------------------------
Xxxx X. Xxxxxx Xx.
President
LBI Properties, Inc.
By:/S/ XXXX X. XXXXXX
----------------------------
Xxxx X. Xxxxxx
President
