Exhibit 2.3
STOCK EXCHANGE AGREEMENT
THIS STOCK EXCHANGE AGREEMENT (the "Agreement") is made as of this 31st day
of December, 2002, by and between ALLTECH ASSOCIATES, INC., an Illinois
corporation ("Alltech"), Xxxxxxx Xxxxx ("Xxxxxxx") and The Xxxxxxx X. Xxxxx
Trust u/a/d 7/21/89 (the "Trust" and together with Xxxxxxx, "Xxxxx").
RECITALS:
WHEREAS, the Trust is the record and beneficial owner of 1,614,916 shares
of no par value common stock of Alltech;
WHEREAS, Alltech and Xxxxx are shareholders in various entities
(collectively, the "Subsidiaries") Alltech Associates Applied Science Limited
(UK), a registered corporation ("Alltech UK"); Alltech Associates (Australia)
Pty. Ltd., a New South Wales proprietary company ("Alltech Australia"); Alltech
Scientific Inc. ("Alltech China"); Alltech-Applied Science Labs (H.K.), Limited
a Hong Kong corporation ("Alltech Hong Kong"); Alltech G.m;b.H. ("Alltech
Germany"); Alltech France ("Alltech France"), Alltech Italia S.R.L ("Alltech
Italy"), and Alltech/Applied Science, BV, a Netherlands limited liability
company ("Alltech Netherlands");
WHEREAS, Alltech's shares in the Subsidiaries are sometimes hereinafter
referred to collectively as the "Alltech Subsidiary Shares", Xxxxx'x shares in
the Subsidiaries are sometimes hereinafter referred to collectively as the
"Xxxxx Subsidiary Shares" and the Alltech Subsidiary Shares and the Xxxxx
Subsidiary Shares are sometimes hereinafter referred to collectively as the
"Subsidiary Shares;"
WHEREAS, Xxxxx has agreed to contribute all of the Xxxxx Subsidiary Shares
to Alltech and in exchange Alltech has agreed to issue to Xxxxx the number of
shares of Alltech stock set forth on EXHIBIT A attached hereto and by this
reference incorporated herein;
WHEREAS, following the exchange of shares described in the foregoing
recital, Alltech will own all of the Subsidiary Shares.
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.
(a) Alltech Shares. Subject to the terms and conditions set forth in this
Agreement, Alltech hereby issues, transfers, assigns and delivers to Xxxxx, and
Xxxxx hereby accepts the number of the Alltech Shares set forth on EXHIBIT A
attached hereto, free and clear of all liens, pledges, encumbrances, security
interests, claims and equities of every kind.
(b) Subsidiary Shares. Subject to the terms and conditions set forth in
this Agreement, Xxxxx hereby exchanges, transfers, assigns and delivers to
Alltech, and Alltech hereby accepts, all of the Subsidiary Shares held by Xxxxx,
free and clear of all liens, pledges, encumbrances, security interests, claims
and equities of every kind.
(c) [Intentionally Deleted]
2. ALLTECH'S REPRESENTATIONS AND WARRANTIES. Alltech represents and
warrants to Xxxxx that the following statements are true and correct upon
execution of this Agreement and at all times through Closing (defined in Section
4, below):
(a) Due Organization and Qualification. Alltech is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Illinois 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. Alltech 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 Alltech. This Agreement has been duly
authorized, executed and delivered by Alltech and is a valid and binding
obligation of Alltech enforceable against Alltech 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 Alltech 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 Alltech is a party, or by which Alltech or any
of Alltech's properties are bound, or result in a violation of any order, decree
or judgment of any court or governmental agency having jurisdiction over Alltech
or Alltech's properties, will not conflict with, constitute a default under, or
result in a breach of, any contract, agreement, or other instrument to which
Alltech 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 Alltech of any of its
obligations hereunder.
(c) Shares Validly Issued. The Alltech shares when issued to Xxxxx,
will be duly authorized, validly issued, fully-paid and non-assessable.
(d) Reliance. Alltech acknowledges that this Agreement is executed
without reliance on any statement or representation of Xxxxx, or any person(s)
acting on Xxxxx'x behalf, except as stated in this Agreement.
3. XXXXX'X REPRESENTATIONS AND WARRANTIES. Xxxxx represents and warrants to
Alltech that the following statements are true and correct upon execution of
this Agreement and at all times through Closing:
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(a) Title to Shares. Xxxxx is the record and beneficial owner of the
Xxxxx Subsidiary 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. Xxxxx has no judgment outstanding against Xxxxx with respect to the Xxxxx
Subsidiary Shares.
(b) No Other Contracts for Sale of Subsidiary Shares. There are no
existing contracts, options or agreements for the sale of the Subsidiary Shares
or any portion thereof to anyone other than Alltech hereunder.
(c) Agreement Will Not Breach Any Contract. Xxxxx represents and
warrants to Alltech 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 Xxxxx 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 Xxxxx is a party, or by which Xxxxx or any of
Xxxxx'x properties are bound, or result in a violation of any order, decree or
judgment of any court or governmental agency having jurisdiction over Xxxxx or
Xxxxx'x properties, will not conflict with, constitute a default under, or
result in a breach of, any contract, agreement, or other instrument to which
Xxxxx 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 Xxxxx of any of its
obligations hereunder.
(d) Legal Counsel. Xxxxx represents and warrants to Alltech that:
(i) Xxxxx has read and understands this Agreement.
(ii) Xxxxx has been given adequate time to consider the
consequences of this Agreement.
(iii) Xxxxx has had full disclosure of the business operations of
Alltech.
(iv) Xxxxx has been encouraged and had the opportunity to consult
with legal counsel of his own choosing regarding this
Agreement and the transactions contemplated herein.
(e) Reliance. Xxxxx acknowledges that this Agreement is executed
without reliance on any statement or representation of Alltech, or any person(s)
acting on its behalf, except as stated in this Agreement.
(f) No Other Subsidiary Shares. The Xxxxx Subsidiary Shares constitute
all shares of any Alltech Subsidiary owned by Xxxxx.
4. CLOSING. The closing of the exchange of shares shall take place at
Alltech's offices, 0000 Xxxxxxxx Xxxx, Xxxxxxxxx, Xxxxxxxx, at the close of
business at +5:00 p.m. on December 31, 2002, 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:
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(a) Alltech Deliveries. At the Closing, Alltech shall deliver to Xxxxx
the following documents:
(i) A copy of the resolutions of the Board of Directors of
Alltech approving this Agreement and authorizing its
execution, delivery and performance, certified by the
Secretary of Alltech.
(ii) Alltech shall issue and deliver a new certificate
representing the Alltech shares, in the aggregate amount of
shares set forth on EXHIBIT A, to Xxxxx.
(b) Xxxxx Deliveries. At the Closing, Xxxxx shall deliver to Alltech
stock certificates which represent all of the Xxxxx Subsidiary Shares, 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, 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 XXXXX'X OBLIGATION TO CLOSE. The obligations of
Xxxxx 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
Xxxxx'x obligation to exchange shares as contemplated by this Agreement,
Alltech's 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 Xxxxx Subsidiary Shares to Alltech in exchange for the Alltech
shares or any other transaction contemplated hereby, or which might affect the
right of Alltech to own the Xxxxx Subsidiary Shares or Xxxxx to own the Alltech
shares as contemplated and which, in the judgment of Xxxxx, makes it inadvisable
to proceed with the transactions contemplated hereby.
(c) Performance. Alltech shall have performed and complied with all
agreements and conditions required by this Agreement to be performed or complied
with by Alltech prior to or at the Closing.
7. CONDITIONS PRECEDENT TO ALLTECH'S OBLIGATION TO CLOSE. The obligations
of Alltech 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 Alltech's
obligation to exchange shares as contemplated by this Agreement, Xxxxx'x
representations and
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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 issuance and
delivery of the Alltech shares to Xxxxx in exchange for the Xxxxx Subsidiary
Shares or any other transaction contemplated hereby, or which might affect the
right of Alltech to own the Xxxxx Subsidiary Shares or Xxxxx to own the Alltech
shares as contemplated and which, in the judgment of Alltech, makes it
inadvisable to proceed with the transactions contemplated hereby.
(c) Performance. Xxxxx shall have performed and complied with all
agreements and conditions required by this Agreement to be performed or complied
with by Xxxxx 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 Xxxxx, on the one hand, and Alltech 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 when received, whether personally, 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):
If to Xxxxx, addressed to: c/o Alltech Associates
Attn: Xxxxxxx Xxxxx
0000 Xxxxxxxx Xxxx
Xxxxxxxxx, XX 00000
Fax: (000) 000-0000
If to Alltech, addressed to: Alltech Associates, Inc.
Xxxxxxx Xxxxx, President
0000 Xxxxxxxx Xxxx
Xxxxxxxxx, XX 00000
Fax: (000) 000-0000
With a copy to: Xxxxxx X. Xxxxx, Esq.
Levenfeld Xxxxxxxxxx
000 Xxxxxxxx Xxxx
0
Xxxxx 000
Xxxxxxxxxx, XX 00000
Fax: (000) 000-0000
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 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 Alltech or Xxxxx 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 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
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and resolutions that may be reasonably necessary or appropriate to fully
effectuate the transactions contemplated in this Agreement.
[Signature Page Follows]
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IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement
the day and year first written above.
XXXXXXX X. XXXXX, INDIVIDUALLY ALLTECH ASSOCIATES, INC., an
AND AS TRUSTEE OF THE XXXXXXX Illinois corporation
X. XXXXX TRUST U/A/D 7/21/89
/s/ Xxxxxxx X. Xxxxx By: /s/ Xxxxxxx Xxxxx
------------------------------------ ---------------------------------
Xxxxxxx X. Xxxxx Xxxxxxx Xxxxx, President
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EXHIBIT A
Shares Issuable to Xxxxx at Closing
Alltech Shares Issuable
Issuer Shareholder to Xxxxx in Exchange
----- ----------- -----------------------
Alltech Associates, Inc. Xxxxx
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