EXHIBIT 2.1
THE SECURITIES WHICH ARE THE SUBJECT OF THIS AGREEMENT HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933 (THE "1933 ACT"), NOR REGISTERED UNDER ANY
STATE SECURITIES LAW, AND ARE "RESTRICTED SECURITIES" AS THAT TERM IS DEFINED IN
RULE 144 UNDER THE 1933 ACT. THE SECURITIES MAY NOT BE OFFERED FOR SALE, SOLD OR
OTHERWISE TRANS FERRED EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT
UNDER THE 1933 ACT, OR PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE 1933
ACT, THE AVAILABILITY OF WHICH IS TO BE ESTABLISHED TO THE SATISFACTION OF THE
COMPANY.
AGREEMENT FOR THE EXCHANGE OF COMMON STOCK
AGREEMENT made this 29th day of December, 1999, by and between Lucid
Concepts, Inc., a Florida corporation, (the "ISSUER") and the individuals listed
in Exhibit A attached hereto, (the "SHAREHOLDERS"), which SHAREHOLDERS own of
all the issued and outstanding shares of Xxxxxxxx Citrus Sales of Florida, Inc.
a Florida corporation. ("XXXXXXXX")
In consideration of the mutual promises, covenants, and representations
contained herein, and other good and valuable consideration,
THE PARTIES HERETO AGREE AS FOLLOWS:
1. EXCHANGE OF SECURITIES. Subject to the terms and conditions of this
Agreement, ISSUER agrees to issue to SHAREHOLDERS, a total of 3,500,000 shares
of the common stock of ISSUER, $.001 par value (the "Shares"), in exchange for
100% of the issued and outstanding shares of XXXXXXXX, such that XXXXXXXX shall
become a wholly owned subsidiary of the ISSUER.
2. REPRESENTATIONS AND WARRANTIES. ISSUER represents and warrants to
SHAREHOLDERS and XXXXXXXX the following:
i. Organization. ISSUER is a corporation duly organized,
validly existing, and in good standing under the laws of Florida, and has all
necessary corporate powers to own properties and carry on a business, and is
duly qualified to do business and is in good standing in Florida. All actions
taken by the Incorporators, directors and shareholders of ISSUER have been valid
and in accordance with the laws of the State of Florida.
ii. Capital. The authorized capital stock of ISSUER consists
of 50,000,000 shares of common stock, $.001 par value, of which 5,980,000 are
issued and outstanding, and 10,000,000 shares of preferred stock, no par value,
none of which are issued. All outstanding shares are fully paid and
nonassessable, free of liens, encumbrances, options, restrictions and legal or
equitable rights of others not a party to this Agreement. Following this
closing, there shall be a total of 5,000,000 shares of common stock of ISSUER
issued and outstanding and there will be no outstanding subscriptions, options,
rights, warrants, convertible securities, or other agreements or commitments
obligating ISSUER to issue or to transfer from treasury any additional shares of
its capital stock. None of the outstanding shares of ISSUER are subject to any
stock restriction greements. All of the shareholders of ISSUER have valid a
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title to such shares and acquired their shares in a lawful transaction and in
accordance with the laws of Florida.
iii. Financial Statements. Exhibit B to this Agreement
includes the current balance sheet of ISSUER, and the related statements of
income and retained earnings for the period then ended. The financial statements
have been prepared in accordance with generally accepted accounting principles
consistently followed by ISSUER throughout the periods indicated, and fairly
present the financial position of ISSUER as of the date of the balance sheet and
the financial statements, and the results of its operations for the periods
indicated.
iv. Absence of Changes. Since the date of the financial
statements, there has not been any change in the financial condition or
operations of ISSUER, except changes in the ordinary course of business, which
changes have not in the aggregate been materially adverse. At closing ISSUER
shall have -0- cash and -0- liabilities.
v. Liabilities. ISSUER does not have any debt, liability, or
obligation of any nature, whether accrued, absolute, contingent, or otherwise,
and whether due or to become due, that is not reflected on the ISSUERS'
financial statement. ISSUER is not aware of any pending, threatened or asserted
claims, lawsuits or contingencies involving ISSUER or its common stock. There is
no dispute of any kind between the ISSUER and any third party, and no such
dispute will exist at the closing of this Agreement. At closing, ISSUER will be
free from any and all liabilities, liens, claims and/or commitments.
vi. Ability to Carry Out Obligations. ISSUER has the right,
power, and authority to enter into and perform its obligations under this
Agreement. The execution and delivery of this Agreement by Issuer and the
performance by ISSUER of its obligations hereunder will not cause, constitute,
or conflict with or result in (a) any breach or violation or any of the
provisions of or constitute a default under any license, indenture, mortgage,
charter, instrument, articles of incorporation, bylaw, or other agreement or
instrument to which ISSUER or its shareholders are a party, or by which they may
be bound, nor will any consents or authorizations of any party other than those
hereto be required, (b) an event that would cause ISSUER to be liable to any
party, or (c) an event that would result in the creation or imposition or any
lien, charge or encumbrance on any asset of ISSUER or upon the securities of
ISSUER to be acquired by SHAREHOLDERS.
vii. Full Disclosure. None of the representations and
warranties made by the ISSUER, or in any certificate or memorandum furnished or
to be furnished by the ISSUER, contains or will contain any untrue statement of
a material fact, or omit any material fact the omission of which would be
misleading.
viii. Contract and Leases. ISSUER is not currently carrying on
any business and is not a party to any contract, agreement or lease. No person
holds a power of attorney from ISSUER.
ix. Compliance with Laws. ISSUER has complied with, and is not in
violation of any federal, state, or local statute, law, and/or regulation
pertaining to ISSUER. ISSUER has complied with all federal and state securities
laws in connection with the issuance, sale and distribution of its securities.
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x. Litigation. ISSUER is not (and has not been) a party to any
suit, action, arbitration, or legal, administrative, or other proceeding, or
pending governmental investigation. To the best knowledge of the ISSUER, there
is no basis for any such action or proceeding and no such action or proceeding
is threatened against ISSUER and ISSUER is not subject to or in default with
respect to any order, writ, injunction, or decree of any federal, state, local,
or foreign court, department, agency, or instrumentality.
xi. Conduct of Business. Prior to the closing, ISSUER shall
conduct its business in the normal course, and shall not (1) sell, pledge, or
assign any assets (2) amend its Articles of Incorporation or Bylaws, (3) declare
dividends, redeem or sell stock or other securities, (4) incur any liabilities,
(5) acquire or dispose of any assets, enter into any contract, guarantee
obligations of any third party, or (6) enter into any other transaction.
xii. Corporate Documents. Copies of each of the following
documents, which are true complete and correct in all material respects, will be
attached to and made a part of this Agreement:
(1) Articles of Incorporation;
(2) Bylaws ;
(3) Minutes of Shareholders Meetings;
(4) Minutes of Directors Meetings;
(5) List of Officers and Directors;
(6) Current Balance Sheet together with other financial
statements described in Section 2(iii);
(7) Stock register and stock records of ISSUER and a
current, accurate list of ISSUER's shareholders.
xiii. Documents. All minutes, consents or other documents
pertaining to ISSUER to be delivered at closing shall be valid and in accordance
with the laws of Florida.
xiv. Title. The Shares to be issued to SHAREHOLDERS will be,
at closing, free and clear of all liens, security interests, pledges, charges,
claims, encumbrances and restrictions of any kind, shall be issued pursuant to
Regulation D, Section 506 and 4(2)of the Act and shall bear a Rule 144 legend.
None of such Shares are or will be subject to any voting trust or agreement. No
person holds or has the right to receive any proxy or similar instrument with
respect to such shares, except as provided in this Agreement, the ISSUER is not
a party to any agreement which offers or grants to any person the right to
purchase or acquire any of the securities to be issued to SHAREHOLDERS. There is
no applicable local, state or federal law, rule, regulation, or decree which
would, as a result of the issuance of the Shares to SHAREHOLDERS, impair,
restrict or delay SHAREHOLDERS' voting rights with respect to the Shares.
3. SHAREHOLDERS and XXXXXXXX represent and warrant to ISSUER the
following:
i. Organization. XXXXXXXX is a corporation duly organized,
validly existing, and in good standing under the laws of Florida, has all
necessary corporate powers to own properties and carry on a business, and is
duly qualified to do business and is in good standing in Florida. All actions
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taken by the Incorporators, directors and shareholders of XXXXXXXX have been
valid and in accordance with the laws of Florida.
ii. Shareholders and Issued Stock. Exhibit A annexed hereto
sets forth the names and share holdings of 100% of XXXXXXXX shareholders.
iii. Listing Stock for Trading. Upon closing, SHAREHOLDERS and
XXXXXXXX shall take all steps reasonably necessary to get the ISSUER's common
stock listed for trading in NASD Automated Bulletin Board and to, as soon as
practicably possible, have the company listed with Standard and Poors or Moodys
in their Accelerated Corporate Report.
iv. General Obligations. Following the closing, ISSUER shall
comply with applicable federal and state securities laws, and shall not issue
S-8 shares for a period of 12 months, except for legal and accounting related
services.
v. Counsel. SHAREHOLDERS and XXXXXXXX represent and warrant
that prior to Closing, that they are represented by independent counsel or have
had the opportunity to retain independent counsel to represent them in this
transaction and that prior to Closing, the law offices of Mintmire & Associates
has acted as exclusive counsel to the ISSUER and has not represented either the
SHAREHOLDERS or XXXXXXXX in this transaction in any manner whatsoever.
4. INVESTMENT INTENT. SHAREHOLDERS agree that the shares being issued
pursuant to this Agreement may be sold, pledged, assigned, hypothecate or
otherwise transferred, with or without consideration (a "Transfer"), only
pursuant to an effective registration statement under the Act, or pursuant to an
exemption from registration under the Act, the availability of which is to be
established to the satisfaction of ISSUER. SHAREHOLDERS agree, prior to any
transfer, to give written notice to ISSUER expressing his desire to effect the
transfer and describing the proposed transfer.
5. CLOSING. The closing of this transaction shall take place at the law
office of Mintmire & associates, 000 Xxxxxxx Xxxxxx, Xxxxx 000, Xxxx Xxxxx, XX
00000 on or before December 31, 1999.
6. DOCUMENTS TO BE DELIVERED AT CLOSING.
i. By the ISSUER
(1) Board of Directors Minutes authorizing the issuance of a
certificate or certificates for 18,000,000 Shares, registered in the names of
the SHAREHOLDERS equal to their pro-rata holdings in XXXXXXXX. All certificates
shall be delivered at closing.
(2) The resignation of all officers of ISSUER.
(3) A Board of Directors resolution appointing such person as
SHAREHOLDERS designate as a director(s) of ISSUER.
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(4) The resignation of all the directors of ISSUER, except
that of SHARE HOLDER'S designee, dated subsequent to the resolution described in
3, above.
(5) Current SEC filings of the ISSUER, which shall include a
current balance sheet and statements of operations, stockholders equity and cash
flows for the twelve month period then ended.
(6) All of the business and corporate records of ISSUER,
including but not limited to correspondence files, bank statements, checkbooks,
savings account books, minutes of shareholder and directors meetings, financial
statements, shareholder listings, stock transfer records, agreements and
contracts.
(7) Such other minutes of ISSUER's shareholders or directors
as may reasonably be required by SHAREHOLDERS.
(8) An Opinion Letter from ISSUER's Attorney attesting to the
validity and condition of the ISSUER.
ii. By SHAREHOLDERS AND XXXXXXXX:
(1) Delivery to the ISSUER, or to its Transfer Agent, the
certificates representing 100% of the issued and outstanding stock of XXXXXXXX.
(2) Consents signed by all the shareholders of XXXXXXXX
consenting to the terms of this Agreement.
7. REMEDIES.
i. Arbitration. Any controversy or claim arising out of, or relating
to, this Agreement, or the making, performance, or interpretation thereof, shall
be settled by arbitration in Palm Beach, Palm Beach County, Florida in
accordance with the Rules of the American Arbitration Association then existing,
and judgment on the arbitration award may be entered in any court having
jurisdiction over the subject matter of the controversy.
8. MISCELLANEOUS.
i. Captions and Headings. The Article and paragraph headings
throughout this Agreement are for convenience and reference only, and shall in
no way be deemed to define, limit, or add to the meaning of any provision of
this Agreement.
ii. No oral change. This Agreement and any provision hereof,
may not be waived, changed, modified, or discharged orally, but only by an
agreement in writing signed by the party against whom enforcement of any waiver,
change, modification, or discharge is sought.
iii. Non Waiver. Except as otherwise provided herein, no
waiver of any covenant, condition, or provision of this Agreement shall be
deemed to have been made unless expressly in writing and signed by the party
against whom such waiver is charged; and (I) the failure of any party to insist
in any one or more cases upon the performance of any of the provisions,
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covenants, or conditions of this Agreement or to exercise any option herein
contained shall not be construed as a waiver or relinquishment for the future of
any such provisions, covenants, or conditions, (ii) the acceptance of
performance of anything required by this Agreement to be performed with
knowledge of the breach or failure of a covenant, condition, or provision hereof
shall not be deemed a waiver of such breach or failure, and (iii) no waiver by
any party of one breach by another party shall be construed as a waiver with
respect to any other or subsequent breach.
iv. Time of Essence. Time is of the essence of this Agreement
and of each and every provision hereof.
v. Entire Agreement. This Agreement contains the entire
Agreement and understanding between the parties hereto, and supersedes all prior
agreements and understandings.
vi. Counterparts. This Agreement may be executed simultaneously
in one or more counterparts, each of which shall be deemed an original, but all
of which together shall constitute one and the same instrument.
vii. Notices. All notices, requests, demands, and other
communications under this Agreement shall be in writing and shall be deemed to
have been duly given on the date of service if served personally on the party to
whom notice is to be given, or on the third day after mailing if mailed to the
party to whom notice is to be given, by first class mail, registered or
certified, postage prepaid, and properly addressed, and by fax, as follows:
ISSUER: Xxxxxx X. Xxxxxxxx, Esq.
Mintmire & Associates
000 Xxxxxxx Xxxxxx
Xxxxx 000
Xxxx Xxxxx, XX 00000
Phone: (000) 000-0000
Fax: (000) 000-0000
XXXXXXXX: Xxxxxx X. Xxxxxxx
Beacon Accounting Services
0000 XX Xxxx Xxxx
Xxxx Xxxx, XX 00000
Phone: (000) 000-0000
Fax: (000) 000-0000
IN WITNESS WHEREOF, the undersigned has executed this Agreement this 31st day of
December 1999.
LUCID CONCEPTS, INC. XXXXXXXX CITRUS SALES OF FLORIDA, INC.
By: /s/ Xxxxx X. Xxxx By: /s/ Xxxxxx X. Xxxxxxx
------------------------------ -------------------------------------
President CFO
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