Exhibit 2.1
STOCK EXCHANGE AGREEMENT
THIS STOCK EXCHANGE AGREEMENT (the "Agreement") is made as of this 1st day
of January, 2003, by and between ALLTECH INTERNATIONAL HOLDINGS, INC., a
Delaware corporation ("Holdings"), ALLTECH ASSOCIATES, INC., an Illinois
corporation ("Associates"), and the persons whose signatures appear as
"Shareholders" on the signature pages of this Agreement (collectively, the
"Shareholders" and each may be referred to hereinafter as a "Shareholder").
RECITALS:
WHEREAS, each of the Shareholders is the record and beneficial owner of the
number of shares of Common Stock of Associates set forth opposite their name on
EXHIBIT A attached hereto, and collectively all of such shares held by the
Shareholders represent and constitute all of the issued and outstanding shares
of capital stock of Associates (the "Associates Shares");
WHEREAS, in consideration of the exchange of shares described in this
Agreement, Holdings desires to issue to each Shareholder 3.0858 shares of
Holdings' Common Stock for each share of Associates Shares held by such
Shareholder (subject to an upward or downward adjustment to reflect an actual
appraisal value of certain of Alltech's international subsidiaries and
affiliates) (the "HCS Shares"), and in exchange the Shareholders desire to
transfer the Associates Shares to Holdings.
NOW, THEREFORE, in consideration of the mutual promises and covenants
herein contained, the undertakings described in the above Recitals and for other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. EXCHANGE OF STOCK; OPTIONS AND RESTRICTION AGREEMENTS.
(a) Holdings Shares. Subject to the terms and conditions set forth in this
Agreement, Holdings hereby issues, transfers, assigns and delivers to
each of the Shareholders, and each of the Shareholders hereby accepts
the HCS Shares, free and clear of all liens, pledges, encumbrances,
security interests, claims and equities of every kind.
(b) Associates Shares. Subject to the terms and conditions set forth in
this Agreement, each of the Shareholders hereby exchanges, transfers,
assigns and delivers to Holdings, and Holdings hereby accepts, all of
the Associates Shares held by each respective Shareholder, free and
clear of all liens, pledges, encumbrances, security interests, claims
and equities of every kind, except the Option Agreements and
Restriction Agreements (as such terms are defined in Section 3(a),
below).
(c) Options for Shares. Upon effectuation of the exchange of stock
described in paragraphs (a) and (b), above, the existing qualified
stock option plan of
Associates (the "Associates Plan") will be ratified by corporate
resolution of Holdings' Board of Directors and the options held under
such plan will be converted into options to acquire shares of
Holdings' Common Stock according to a conversion ratio such that
holders of options will instead hold options for Holdings' Common
Stock equivalent to the options held under the Associates Plan.
(d) Restriction Agreements. It is contemplated by the parties hereto that
Holdings will merge with U.S. Consolidated Industries, Inc., a Utah
corporation ("USCI"), with the result that Holdings will be the
surviving corporation and the separate corporate existence of USCI
will cease (the "Merger"). Upon effectuation of the Merger, the Option
Agreements and Restriction Agreements (as such terms are defined in
Section 3(a), below) will terminate.
2. HOLDINGS REPRESENTATIONS AND WARRANTIES. Holdings represents and
warrants to the Shareholders that the following statements are true and correct
upon execution of this Agreement and at all times through the Closing (defined
in Section 4, below):
(a) Due Organization and Qualification. Holdings is a corporation
duly organized, validly existing and in good standing under the
laws of the State of Delaware and is qualified in every
jurisdiction where the nature of the business requires it to be
so qualified and where failure to so qualify would materially and
adversely affect its business or assets. Holdings has all
corporate power and authority necessary to execute, perform and
carry out this Agreement and all of the transactions contemplated
hereunder and all of the other documents contemplated hereunder
to be executed by Holdings. This Agreement has been duly
authorized, executed and delivered by Holdings and is a valid and
binding obligation of Holdings enforceable against Holdings in
accordance with its terms subject to bankruptcy proceedings and
the imposition of legal and equitable remedies.
(b) Agreement Will Not Breach Any Contract. The execution and
delivery of this Agreement and the performance of the obligations
imposed hereunder will not conflict with, or result in a breach
by Holdings of any of the terms or provisions of, or constitute a
default under its Certificate of Incorporation, By-Laws or any
indenture, mortgage, deed of trust, or any other material
agreement or instrument to which Holdings is a party, or by which
Holdings or any of Holdings' properties are bound, or result in a
violation of any order, decree or judgment of any court or
governmental agency having jurisdiction over Holdings or
Holdings' properties, will not conflict with, constitute a
default under, or result in a breach of, any contract, agreement,
or other instrument to which Holdings is a party or is otherwise
bound and no consent or authorization by any party is required in
connection with the execution and delivery of this Agreement and
any
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related agreements or the performance by Holdings of any of its
obligations hereunder.
(c) Shares Validly Issued. The HCS Shares when issued to each
Shareholder, will be duly authorized, validly issued, fully-paid
and non-assessable.
(d) Reliance. Holdings acknowledges that this Agreement is executed
without reliance on any statement or representation of the
Shareholders, or any person(s) acting on their behalf, except as
stated in this Agreement.
(e) Restriction. Upon issuance and until consummation of the Merger,
the HCS Shares shall remain restricted by the Restriction
Agreements (as such term is defined in Section 3(a), below).
3. SHAREHOLDERS REPRESENTATIONS AND WARRANTIES. Each Shareholder represents
and warrants to Holdings that the following statements are true and correct upon
execution of this Agreement and at all times through Closing:
(a) Title to Shares. Each Shareholder is the record and beneficial
owner of their respective Associates Shares, free and clear of
any liens, encumbrances security agreements, equities, options,
voting agreements, claims, charges and restrictions, including
any third party legal or beneficial interest of any kind, except
those under the Stock Option Agreement between Associates and
each optionholder thereunder and restriction agreements related
thereto (collectively, the "Option Agreements"), and the
Shareholders' Restriction Agreement between Associates and each
Shareholder (collectively, the "Restriction Agreements"). Each
Shareholder has no judgment outstanding against him with respect
to his respective Associates Shares.
(b) No Other Contracts for Sale of Associates Shares. Except for the
Option Agreements and Restriction Agreements, there are no
existing contracts, options or agreements for the sale of the
Associates Shares or any portion thereof to anyone other than
Holdings.
(c) Agreement Will Not Breach Any Contract. Each Shareholder
represents and warrants to Holdings that the execution and
delivery of this Agreement and the performance of the obligations
imposed hereunder will not conflict with, or result in a breach
by such Shareholder of any of the terms or provisions of, or
constitute a default under any indenture, mortgage, deed of
trust, or any other material agreement or instrument to which
such Shareholder is a party, or by which such Shareholder or any
of such Shareholder's properties are bound, or result in a
violation of any order, decree or judgment of any court or
governmental agency having jurisdiction over such Shareholder or
such Shareholder's properties, will not conflict with, constitute
a default under, or result in a breach of, any
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contract, agreement, or other instrument to which such
Shareholder is a party or is otherwise bound and no consent or
authorization by any party is required in connection with the
execution and delivery of this Agreement and any related
agreements or the performance by such Shareholder of any of its
obligations hereunder, except for the Option Agreements and
Restriction Agreements.
(d) Legal Counsel. Each Shareholder represents and warrants to
Holdings that:
(i) Such Shareholder has read and understands this Agreement.
(ii) Such Shareholder has been given adequate time to consider
the consequences of this Agreement.
(iii) Such Shareholder has had full disclosure of the business
operations of Associates and Holdings.
(iv) Such Shareholder has been encouraged and had the opportunity
to consult with legal counsel of their own choosing
regarding this Agreement and the transactions contemplated
herein.
(e) Reliance. Each Shareholder acknowledges that this Agreement is
executed without reliance on any statement or representation of
Holdings, or any person(s) acting on its behalf, except as stated
in this Agreement.
4. CLOSING. The closing of the exchange of shares shall take place at
Associates' offices, 0000 Xxxxxxxx Xxxx, Xxxxxxxxx, Xxxxxxxx, at 10:00 a.m. on
January 1, 2003, or at such other date, time and location as the parties hereto
may mutually agree (the "Closing").
5. CLOSING DELIVERIES. The parties hereto shall not be obligated hereunder
in any manner until the deliveries and conditions described in this Section 5
have been satisfied:
(a) Holdings Deliveries. Holdings shall deliver to the Shareholders
the following documents:
(i) At the Closing, a copy of the resolutions of the Board of
Directors of Holdings approving this Agreement and
authorizing its execution, delivery and performance,
certified by the Secretary of Holdings.
(ii) After a Shareholder delivers its stock certificates under
paragraph (b), below, and within a reasonable time after the
Closing, Holdings shall issue and deliver new certificates
representing the HCS Shares, to such Shareholder, or shall
cause its transfer agent to do same.
(b) Shareholders Deliveries. At the Closing, each Shareholder shall
deliver to Holdings stock certificates which represent all of the
Associates Shares
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held by them, duly endorsed, free and clear of any and all liens,
encumbrances, security agreements, equities, options, voting
agreements, claims, charges and restrictions, including any
third-party legal or beneficial interest of any kind (except for
those under the Option Agreements and Restriction Agreements),
together with duly executed stock powers and/or any other
instruments or documents necessary to effectuate the transfer of
the shares described in this Section 5(b).
6. CONDITIONS PRECEDENT TO THE SHAREHOLDERS' OBLIGATION TO CLOSE. The
obligations of the Shareholders under this Agreement are subject to the
fulfillment prior to or at the Closing of each of the following conditions
precedent:
(a) Representations and Warranties True at Time of Exchange. As to
the Shareholders' obligation to exchange shares as contemplated
by this Agreement, Holdings' representations and warranties
contained in this Agreement shall be true at the time of Closing
as though such representations and warranties were made at such
time.
(b) Litigation, Material Adverse Change. There shall not be pending
or threatened any action or proceeding by or before any court or
other governmental body which shall seek to restrain, prohibit or
invalidate the exchange and delivery of the Associates Shares to
Holdings in exchange for the HCS Shares or any other transaction
contemplated hereby, or which might affect the right of Holdings
to own the Associates Shares or the Shareholders to own the HCS
Shares as contemplated and which, in the judgment of the
Shareholders, makes it inadvisable to proceed with the
transactions contemplated hereby.
(c) Performance. Holdings shall have performed and complied with all
agreements and conditions required by this Agreement to be
performed or complied with by Holdings prior to or at the
Closing.
7. CONDITIONS PRECEDENT TO HOLDINGS' OBLIGATION TO CLOSE. The obligations
of Holdings under this Agreement are subject to the fulfillment prior to or at
the Closing of each of the following conditions precedent:
(a) Representations and Warranties True at Exchange. As to Holdings'
obligation to exchange shares as contemplated by this Agreement,
the Shareholders' representations and warranties contained in
this Agreement shall be true at the time of Closing as though
such representations and warranties were made at such time.
(b) Litigation, Material Adverse Change. There shall not be pending
or threatened any action or proceeding by or before any court or
other governmental body which shall seek to restrain, prohibit or
invalidate the exchange and delivery of the HCS Shares to the
Shareholders in exchange
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for the Associates Shares or any other transaction contemplated
hereby, or which might affect the right of Holdings to own the
Associates Shares or the Shareholders to own the HCS Shares as
contemplated and which, in the judgment of Holdings, makes it
inadvisable to proceed with the transactions contemplated hereby.
(c) Performance. The Shareholders shall have performed and complied
with all agreements and conditions required by this Agreement to
be performed or complied with by the Shareholders prior to or at
the Closing.
8. BROKERAGE. All parties respectively represent and warrant to each other
that no person employed a broker relative to this Agreement or the transactions
contemplated hereby, and that the Shareholders, on the one hand, and Holdings on
the other hand, shall indemnify and hold harmless the other from and against any
and all commissions, fees or claims of any person employed or retained or
claiming to be employed or retained by the other party to bring about, or to
represent to such party in, the transactions contemplated hereby.
9. SURVIVAL. All representations, warranties, covenants and agreements made
by either party in this Agreement, except as otherwise expressly stated, shall
survive Closing.
10. NOTICES. All notices and other communications hereunder shall be in
writing and shall be deemed given if sent by hand, by telegram, successful
facsimile transmission or registered or certified mail (return receipt
requested) to the parties at the following addresses (or at such other address
for a party as shall be specified by notice given in accordance with this
Section 10) upon such hand delivery, upon actual receipt of telegrams, upon such
successful facsimile transmission or three days after so mailing:
If to Shareholders, addressed to: c/o Alltech Associates
(Attn: the respective shareholder)
0000 Xxxxxxxx Xxxx
Xxxxxxxxx, XX 00000
Fax: (000) 000-0000
If to Holdings, addressed to: Alltech International Holdings, Inc.
Attn: President
0000 Xxxxxxxx Xxxx
Xxxxxxxxx, XX 00000
Fax: (000) 000-0000
With a copy to: Xxxxxx X. Xxxxx, Esq.
Levenfeld Xxxxxxxxxx
000 Xxxxxxxx Xxxx
Xxxxx 000
Xxxxxxxxxx, XX 00000
Fax: (000) 000-0000
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11. Intentionally Omitted.
12. BENEFIT. This Agreement shall be binding upon and inure to the benefit
of the parties hereto and their respective heirs, personal representatives,
successors and assigns.
13. COUNTERPARTS AND FACSIMILE SIGNATURES. This Agreement may be executed
simultaneously in two or more counterparts, each of which shall be deemed an
original. Signatures transmitted by facsimile shall be considered authentic and
legally binding.
14. SEVERABILITY. Should any term, provision or section hereof be held to
be invalid, such invalidity shall not affect any other provisions or sections
hereof or thereof which can be given effect without such invalid provision or
section, all of which shall remain in full force and effect.
15. VARIATIONS IN PRONOUNS. All pronouns and any variations thereof refer
to the masculine, feminine or neuter, singular or plural, as the identity of the
person or persons may require.
16. DESCRIPTIVE HEADINGS. The descriptive headings of the several sections
of this Agreement are inserted for convenience only and do not constitute part
of this Agreement.
17. ENTIRE AGREEMENT. This Agreement (including all exhibits and schedules
attached hereto) and the collateral agreements and other documents executed in
connection with the consummation of the transactions contemplated herein
represent the entire agreement and understanding of the parties hereto and
supersede all prior and concurrent agreements, understandings, representations
and warranties in regard to the subject matter hereof and are hereby
incorporated by reference herein, regardless of whether expressly so
incorporated elsewhere in this Agreement.
18. GOVERNING LAW, JURISDICTION, REMEDIES. This Agreement shall be
interpreted and enforced according to the laws of the State of Illinois without
regard to so-called conflict of law provisions. The parties agree that except
for injunctive relief which Holdings may seek in another jurisdiction that all
disputes concerning this Agreement and the transactions contemplated herein
shall lay within the exclusive jurisdiction and venue of the state and federal
courts sitting in the County of Xxxx, Illinois.
19. AMENDMENTS AND MODIFICATIONS. No amendments, waivers or modifications
hereof shall be made or deemed to have been made unless in writing executed by
the party to be bound thereby.
20. FURTHER ACTS. It is hereby acknowledged that this Agreement is a
contract legally binding upon the parties hereto. Each party to this Agreement
agrees to do, execute, acknowledge and deliver all such further acts,
assignments, transfers, assurances, instruments and resolutions that may be
reasonably necessary or appropriate to fully effectuate the transactions
contemplated in this Agreement.
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IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement
the day and year first written above.
ALLTECH INTERNATIONAL HOLDINGS, ALLTECH ASSOCIATES, INC., an
INC., a Delaware corporation Illinois corporation
By: /s/ Xxxxxxx Xxxxx By: /s/ Xxxxxxx Xxxxx
-------------------------------------- ---------------------------------
Xxxxxxx Xxxxx, Xxxxxxx Xxxxx,
Chief Executive Officer Chief Executive Officer
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SHAREHOLDERS:
/s/ Xxxxx Xxxxxx /s/ Xxxxx Xxxxxxxx
----------------------------------- ------------------------------------
(Signature) (Signature)
Name: Xxxxx Xxxxxx Name: Xxxxx Xxxxxxxx
/s/ Xxxxx Xxxxx /s/ Xxxxx Xxxxx
----------------------------------- ------------------------------------
(Signature) (Signature)
Name: Xxxxx Xxxxx Name: Xxxxx Xxxxx
/s/ Xxxxxx Xxxxx /s/ Xxxxxx Xxxxx
----------------------------------- ------------------------------------
(Signature) (Signature)
Name: Xxxxxx Xxxxx Name: Xxxxxx Xxxxx
/s/ Xxxxxx Xxxxx /s/ Xxxxxxx Xxxxx
----------------------------------- ------------------------------------
(Signature) (Signature)
Name: Xxxxxx Xxxxx Name: Trustee, The Xxxxxxx X. Xxxxx
Trust u/a/d 7/21/89
/s/ Xxxxxxx Xxxxx /s/ Xxxxx Xxxxx
----------------------------------- ------------------------------------
(Signature) (Signature)
Name: Trustee, The Xxxxxxx X. Xxxxx Name: Trustee, Link Children's Trust
Grandchildren's Trust
/s/ Xxxxxxxx Xxxxx /s/ Xxxxxx Xxxxx
----------------------------------- ------------------------------------
(Signature) (Signature)
Name: Xxxxxxxx Xxxxx Name: Xxxxxx Xxxxx
/s/ Xxxxxxx Xxxxx /s/ Xxxxx Xxxxx
----------------------------------- ------------------------------------
(Signature) (Signature)
Name: Xxxxxxx Xxxxx Name: Xxxxx Xxxxx
/s/ Xxxxx Xxxxx /s/ Xxxx Xxxxxxxx
----------------------------------- ------------------------------------
(Signature) (Signature)
Name: Xxxxx Xxxxx Name: Xxxx Xxxxxxxx
/s/ Xxxx Xxxxx /s/ Xxxxxxxx Xxxxxx
----------------------------------- ------------------------------------
(Signature) (Signature)
Name: Xxxx Xxxxx Name: Xxxxxxxx Xxxxxx
[This is a signature page to the Stock Exchange Agreement]
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/s/ Xxxxxxx Xxxxx /s/ Xxxxxxx Xxxxxx
----------------------------------- ------------------------------------
(Signature) (Signature)
Name: Xxxxxxx Xxxxx Name: Xxxxxxx Xxxxxx
/s/ Xxxxxx XxXxxxxx /s/ Xxx Xxxxxxx
----------------------------------- ------------------------------------
(Signature) (Signature)
Name: Xxxxxx XxXxxxxx Name: Xxx Xxxxxxx
/s/ Xxxxxx Xxxxxxxxxx /s/ Xxxxxx Xxxxx
----------------------------------- ------------------------------------
(Signature) (Signature)
Name: Xxxxxx Xxxxxxxxxx Name: Xxxxxx Xxxxx
/s/ Xxxxxxxx Xxxxxxxxx /s/ Xxxx Xxxxx
----------------------------------- ------------------------------------
(Signature) (Signature)
Name: Xxxxxxxx Xxxxxxxxx Name: Xxxx Xxxxx
/s/ Xxxxx Xxxxxxx /s/ Xxxxxx Xxxxxxx
----------------------------------- ------------------------------------
(Signature) (Signature)
Name: Xxxxx Xxxxxxx Name: Xxxxxx Xxxxxxx
/s/ Xxxxxx Xxxxxxxx /s/ Xxxxxx Xxxxxxx
----------------------------------- ------------------------------------
(Signature) (Signature)
Name: Xxxxxx Xxxxxxxx Name: Xxxxxx Xxxxxxx
[This is a signature page to the Stock Exchange Agreement]
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EXHIBIT A
Shares
Shareholders Associates Shares
------------------------------------------------------------ -----------------
Xxxxx Xxxxxx 6,000.00
Xxx Xxxxxxxx 7,632.00
Xxxxx Xxxxx 6,000.00
Xxxxx Xxxxx 7,632.00
Xxxxxx Xxxxx 87,065.00
Xxxxxx Xxxxx 12,000.00
Xxxxxx Xxxxx 87,066.00
Xxxxxxx Xxxxx - Trust dated 07/21/89 2,150,916*
Xxxxxxx Xxxxx - Grandchildren's Trust - Xxxxxx Xxxxx Trustee 42,000.00
Link Children Trust - Xxxxx Xxxxx Trustee 14,000.00
Xxxxxxxx Xxxxx 6,000.00
Xxxxxx Xxxxx 87,065.00
Xxxxxxx Xxxxx 6,000.00
Xxxxx Xxxxx 6,000.00
Xxxxx Xxxxx 6,000.00
Xxxx Xxxxxxxx 6,000.00
Xxxx Xxxxx 1,908.00
Xxxxxxxx Xxxxxx 6,000.00
Xxxxxxx Xxxxx 7,632.00
Xxxxxxx Xxxxxx 72,000.00
Xxxxxx XxXxxxxx 3,816.00
Xxx Xxxxxxx 1,908.00
Xxxxxx Xxxxxxxxxx 1,908.00
Xxxxxx Xxxxx 7,632.00
Xxxxxxxx Xxxxxxxxx 3,816.00
Xxxx Xxxxx 6,000.00
Xxxxx Xxxxxxx 15,232.00
Xxxxxx Xxxxxxx 15,232.00
Xxxxxx Xxxxxxxx 4,106.00
Xxxxxx Xxxxxxx 400.00
* Subject to an upward or downward adjustment to reflect an actual appraisal
value of certain of Associates' international subsidiaries and affiliates.
