1
EXHIBIT 2.1
AGREEMENT TO ISSUE STOCK IN
UNIFAB INTERNATIONAL, INC.
This Agreement is entered into and effective as of February 5, l998 by
and between UNIFAB INTERNATIONAL, INC., a Louisiana Corporation (the "Company or
UNIFAB"), and PROFESSIONAL INDUSTRIAL MAINTENANCE, LLC, ("LLC").
WHEREAS, LLC sold and conveyed its assets to PIM, LLC, a wholly owned
subsidiary of the Company and in consideration thereof the Company, through its
subsidiary, has paid to LLC, $4,825,000.00 in cash and issued shares of the
Company's stock having a value of $500,000.00, said shares being valued at the
average closing price which was reported in the Wall Street Journal for the five
(5) business days immediately preceeding January 8, l998. The Company will
further pay LLC $674,000.00 in two (2) annual installments of $337,000.00
beginning one year after the date hereof, and has further agreed in the event
that XXX X. XXXXX, XX., as an Employee of LLC and of PIM, XXX xxxxx business for
LLC to be transferred to PIM, LLC and books for PIM, LLC business which together
have an estimated time and material value of $l2,000,000.00 or more within l20
days after January 8, l998, to pay LLC an additional sum of $l,000,000.00 in two
(2) increments of $333,333.33 with a final increment of $333,333.34 the first
installment of which will be payable one year after the parties have agreed that
Xxxxx has booked the business required to be booked by LLC and assigned to PIM,
LLC or for PIM, LLC after the employment of Xxx X. Xxxxx, Xx. by PIM, LLC
payable in two installments of $222,222.00 in cash and $lll,lll.00 in shares of
the Company's stock and in a final installment of $222,223.00 in cash and
$lll,lll.00 in shares, the price of which shares shall be the average closing
price of the Company's stock as published in the Wall Street Journal for the
five (5) business days preceeding the date for issuance of shares.
NOW THEREFORE, in the consideration of the premises, it is agreed by
and between the parties as follows:
1. The Company warrants that it will issue its stock to LLC in
accordance with its obligations as set forth above.
2. LLC acknowledges that its acquisition of stock pursuant to the terms
of this Agreement shall be subject to registration rights with the restrictions
that each share as issued shall not be sold on the open market until it has been
issued to LLC for one full year and further subject to the following agreements
and restrictions:
(a) LLC and its sole member, Xxx X. Xxxxx, Xx. (the "Member"),
acknowledge and agree that LLC may, in connection with its liquidation and
dissolution, distribute the shares of UNIFAB common stock to be received by LLC
pursuant to this Agreement (the "UNIFAB Shares") only to Member.
(b) Each of LLC and Member acknowledges and agrees that, except as set
forth in subsection (a) of this Section 2, (i) it is so acquiring the UNIFAB
Shares for investment for its own account and has no present intention of
reselling or otherwise distributing or participating in a distribution of such
stock; (ii) it understands that the UNIFAB Shares will not be registered under
the Securities Act of l933, as amended (the "Securities Act"), that such shares
will be "restricted securities" as that term is defined in Rule l44 of the
Securities and Exchange Commission under the Securities Act, and that such
shares may not be transferred unless they are subsequently registered under the
Securities Act ("Rule l44") and under any applicable state securities law or are
transferred in a
2
transfer that is exempt from such registration; (iii) UNIFAB is not obligated by
this Agreement to register such shares under the Securities Act or under any
such state laws and UNIFAB will, as a condition to the transfer of any such
shares, require that the request for transfer be accompanied by an opinion of
counsel, in form and substance satisfactory to UNIFAB, to the effect that the
proposed transfer does not result in a violation of the Securities Act or any
applicable state securities law, unless such transfer is covered by an effective
registration statement; and (iv) the UNIFAB Shares may not be sold publicly in
reliance on the exemption from registration under the Securities Act afforded by
Rule l44 unless and until the minimum holding period (currently one year) and
other requirements of Rule l44 have been satisfied.
(c) LLC and Member have been represented by competent and experienced
legal counsel in connection with the negotiation and execution of this
Agreement, have been granted the opportunity to make a thorough investigation of
and to obtain information with respect to the affairs of UNIFAB and its
acquisition of the UNIFAB Shares, and have availed themselves of such
opportunity either directly or through legal counsel and other authorized
representatives. LLC and Member acknowledge that they have received from UNIFAB
and have reviewed with their representatives a copy of each of the following
documents (the "UNIFAB Disclosure Documents"); UNIFAB's prospectus dated
September l8, l997 relating to 2,8l5,000 shares of UNIFAB International, Inc.
common stock; UNIFAB's report to the Securities and Exchange Commission on Form
l0-Q for the second quarter ended September 30, l997; and UNIFAB's press release
dated January 23, l998 relating to UNIFAB's earnings for the third quarter ended
December 3l, l997.
(d) LLC and Member understand and that UNIFAB in issuing the UNIFAB
Shares is relying upon, among other things, the representations and warranties
of LCC and Member contained in this Section in concluding that such issuance
does not require compliance with the registration provisions of the Securities
Act.
(e) LLC and Member each understands and agrees that all certificates
evidencing the UNIFAB Shares issued hereunder will bear restrictive legends in
substantially the following form:
The securities represented by this Certificate have not been registered
under the Securities Act of l933, as amended (the "Act"), or any
applicable state law, and may not be transferred without registration
under the Act and any such state law or an opinion of counsel
satisfactory to the issuer of such securities that registration is not
required.
(f) LLC and Member each acknowledge that (i) it has received and has
reviewed to its satisfaction this Agreement, the UNIFAB Disclosure Documents,
and such additional information with respect to UNIFAB and the transactions
contemplated by this Agreement as it has requested and (ii) such information is
sufficient for it to determine whether to approve such transactions and enter
into this Agreement.
3. As used in this Agreement, the following terms shall have the
meanings indicated below:
"Person" means and includes natural persons, corporations, limited
partnerships, general partnerships, limited liability companies, joint stock
companies, joint ventures, associations, companies, trusts, banks, trust
companies, land trust, business trusts or other organizations, whether or not
legal entities, and governments and agencies and political subdivisions thereof.
"Register," "registered" and "registration" refer to a registration
effected by preparing and filing a Registration Statement with the SEC in
compliance with the Securities Act for the purpose of effecting a public sale of
securities.
"Registrable Securities" means (a) all shares of common stock, $0.0l
par value per share (the "Common Stock"), of UNIFAB beneficially owned by LLC
and (b) any other securities issued by UNIFAB after the date hereof with respect
to such shares (and with respect to the Common Stock generally) by means of
exchange, reclassification, dividend, distribution, split up, combination,
subdivision, recapitalization, merger, spin-off, reorganization or otherwise;
provided, however, that as to any Registrable Securities, such securities shall
cease to
3
constitute Registrable Securities for the purposes of this Agreement if and when
(i) a Registration Statement with respect to the sale of such securities shall
have been declared effective by the SEC and such securities shall have been sold
pursuant thereto in accordance with the intended plan and method of distribution
thereof set for in the final prospectus forming a part of such Registration
Statement; (ii) such securities shall have been sold in satisfaction of all
applicable resale provisions of Rule l44 under the Securities Act; (iii) such
securities cease to be beneficially owned by the Employee, or (iv) such
securities cease to be issued and outstanding for any reason.
"Registration Statement" means a registration statement filed by
UNIFAB with the SEC pursuant to Section 6(a) hereof.
"SEC" means the Securities and Exchange Commission.
"Securities Act" means the Securities Act of l933, as amended.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed on this 5th day of February, l998, at Lake Charles, Louisiana.
UNIFAB INTERNATIONAL, INC.
BY: /s/ Xxxxxx Xxxxxxx
----------------------
XXXXXX XXXXXXX
VICE PRESIDENT
PROFESSIONAL INDUSTRIAL
MAINTENANCE, LLC
BY:/s/ Xxx X. Xxxxx, Xx.
---------------------
XXX X. XXXXX, XX.
MANAGING MEMBER
/s/ Xxx X. Xxxxx, Xx.
----------------------
XXX X. XXXXX, XX.
