Exhibit 2.4
AGREEMENT AND PLAN OF REORGANIZATION
THIS AGREEMENT AND PLAN OF REORGANIZATION (the "Agreement") is made and
entered into as of this 1st day of January, 2003, between U.S. CONSOLIDATED
INDUSTRIES, INC., a Utah corporation ("USCI"), and ALLTECH INTERNATIONAL
HOLDINGS, INC., a Delaware corporation ("Holdings"), and the holders of all of
Holdings' outstanding shares of capital stock (collectively the "Shareholders")
who are listed on Exhibit A attached hereto and on the signatory pages attached
hereto.
RECITALS:
A. Holdings and the Shareholders desire to acquire all of the issued and
outstanding capital stock of USCI (collectively, the "USCI Shares") and to
consummate the merger described in Section 1.1 of this Agreement (the "Merger"),
and USCI and its shareholders desire to exchange all of the USCI Shares for
shares of Holdings authorized but unissued shares of common stock and to
consummate the Merger, all as hereinafter provided. Pursuant to the Merger, USCI
will merge into Holdings with the result that Holdings shall be the survivor of
the Merger and the separate existence of USCI shall cease.
B. It is the intention of the parties hereto that: (i) Holdings shall
acquire the USCI Shares in exchange solely for 600,000 shares of Holdings
authorized but unissued shares of common stock, $.001 par value (the "Holdings
Shares"), as set forth below, and (ii) the Merger shall qualify as a tax free
reorganization under Section 368(a) of the Internal Revenue Code of 1986, as
amended, and related sections thereunder.
C. The Board of Directors of Holdings and the Shareholders have approved
the acquisition of, and deem it to be in the best interest of Holdings and the
Shareholders to acquire the USCI Shares, as hereinafter provided.
D. The Board of Directors of USCI and shareholders of USCI have approved
the exchange of, and deems it to be in the best interest of USCI and its
shareholders to exchange the USCI shares for the Holdings Shares, as hereinafter
provided.
E. The Boards of Directors of Holdings and USCI, and their respective
shareholders, have approved the Plan of Merger in the form set forth as Exhibit
B, attached hereto and made a part hereof (the "Plan of Merger") and the
transactions contemplated hereby and thereby.
NOW, THEREFORE, in consideration of the mutual covenants, agreements,
representations and warranties contained in this Agreement, the parties hereto
agree as follows:
ARTICLE 1
EXCHANGE OF SHARES
1.1 Exchange of Shares and Merger. USCI, Holdings and the Shareholders
hereby agree that USCI shall, on the Closing Date (as defined in Section 1.2,
below), exchange the USCI Shares in the ratio of approximately 31.5 shares of
USCI common stock for each of the Holdings Shares. Pursuant to the Plan of
Merger, USCI shall be merged into Holdings in accordance with the applicable
provisions of the laws of the States of Utah and Delaware. As a result of the
Merger, Holdings shall be the surviving corporation in the Merger and the
separate existence of USCI shall cease in accordance with said laws.
1.2 The Closing. The closing of the transactions contemplated by this
Agreement (the "Closing") shall take place (a) upon the date and time of the
filing of the articles of merger with the Secretary of State of the State of
Delaware (which shall be filed on the same day with the Secretary of the State
of Utah) at the offices of Levenfeld Xxxxxxxxxx, 000 Xxxxxxxx Xxxx, Xxxxx 000,
Xxxxxxxxxx, Xxxxxxxx, or (b) at such other time or place as may be agreed upon
by the parties hereto (the date on which the Closing occurs, the "Closing
Date").
1.3 Delivery of Shares. On the Closing Date, USCI will cause its
shareholders to deliver to Holdings or Holdings' transfer agent the certificates
representing the USCI Shares, duly endorsed (or with executed stock powers) so
as to make Holdings the sole owner thereof. To the extent that any USCI Shares
are delivered to Holdings or its transfer agent after the Closing Date, the
shareholders of USCI shall bear the costs and expenses in connection with the
exchange of such USCI Shares. Within a reasonable time after the delivery of
USCI Shares, Holdings will or will cause its transfer agent to deliver
certificates representing the Holdings Shares to the USCI shareholder who
delivered such USCI Shares. Upon such exchange, the USCI Shares exchanged shall
be canceled and cease to exist.
1.4 Directors and Officers. The parties acknowledge and agree that the
directors and officers of Holdings immediately prior to the Merger shall remain
the directors and officers of Holdings through and after the Merger until their
successors are duly appointed or elected in accordance with the applicable laws
of the State of Delaware.
ARTICLE 2
REPRESENTATIONS AND WARRANTIES OF USCI
USCI hereby represents and warrants as follows:
2.1 Organization and Good Standing. USCI is a corporation duly organized,
validly existing and in good standing under the laws of the State of Utah. It
has the corporate power to own its own property and to carry on its business as
now being conducted and is duly qualified to do business in any jurisdiction
where so required except where the failure to so qualify would have no material
negative impact.
2.2 Corporate Authority. USCI has the corporate power to enter into this
Agreement and to perform its obligations hereunder. The execution and delivery
of this Agreement and the consummation of the transactions contemplated hereby
have been duly authorized by the Board of Directors of USCI and the shareholders
of USCI. The execution and performance of this Agreement will not constitute a
material breach of any agreement, indenture, mortgage, license or other
instrument or document to which USCI is a party and will not violate any
judgment, decree, order, writ, rule, statute, or regulation applicable to USCI
or its properties. The execution and performance of this Agreement will not
violate or conflict with any provision of the respective Articles of
Incorporation or by-laws of USCI.
2.3 The USCI Shares. As of the Closing Date, the USCI shareholders are the
owners of record and beneficially of the USCI Shares (18,900,000 shares of USCI
Common Stock) which shares are free and clear of all rights, claims, liens and
encumbrances and have not been sold, pledged,
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assigned or otherwise transferred except pursuant to this Agreement. The USCI
Shares represent all of the outstanding capital stock of USCI.
2.4 Access to Records. The corporate financial records, minute books, and
other documents and records of USCI have been made available to Holdings prior
to the Closing.
2.5 Taxes. USCI has filed (or by the Closing Date, will have filed) all
material tax, governmental and/or related forms and reports (or extensions
thereof) due or required to be filed and has (or will have) paid or made
adequate provisions for all taxes or assessments which have become due as of the
Closing Date.
2.6 Compliance with Laws. USCI has complied with all federal, state, county
and local laws, ordinances, regulations, inspections, orders, judgments,
injunctions, awards or decrees applicable to it or its business, which, if not
complied with, would materially and adversely affect the business of USCI or the
trading market for the USCI Shares and specifically, and to the best of its
knowledge USCI complied with all applicable securities laws in connection with
its public stock offering (and securities laws exemptions) and there are no
outstanding, pending or threatened stop orders or other actions or
investigations relating thereto.
2.7 Actions and Proceedings. USCI is not a party to any material pending
litigation or, to its knowledge, any governmental investigation or proceeding,
and to its knowledge, no material litigation, claim, assessment, or governmental
proceeding is threatened against USCI.
2.8 Brokers or Finders. No broker's or finder's fee will be payable by USCI
in connection with the transactions contemplated by this Agreement, nor will any
such fee be incurred as a result of any actions of USCI except appearing on
Schedule 2.8 and 3.9 as one Schedule attached hereto and made a part hereof.
2.9 Liabilities. USCI does not have any direct or indirect indebtedness,
liability, claim, loss, damage, deficiency, obligation or responsibility, known
or unknown, fixed or unfixed, liquidated or unliquidated, secured or unsecured,
accrued or absolute, contingent or otherwise, including, without limitation, any
liability on account of taxes, any governmental charge or lawsuit (all of the
foregoing collectively defined to as "Liabilities"). As of the Closing Date,
USCI will not have any Liabilities.
2.10 Capitalization. The authorized capital stock of USCI consists of
50,000,000 shares of Common Stock, $.001 par value, of which 18,900,000 shares
of USCI Common Stock are presently issued and outstanding. USCI has not granted,
issued or agreed to grant, issue or make any warrants, options, subscription
rights or any other commitments of any character relating to the issued or
unissued shares of capital stock of USCI, except as contemplated by this
Agreement.
2.11 Disclosure. USCI has (and at the Closing it will have) disclosed in
writing all events, conditions and facts materially affecting the business,
financial conditions or results of operation of USCI all of which have been set
forth herein. USCI has not now and will not have, at the Closing, withheld
disclosure of any such events, conditions, and facts which they have knowledge
of or have reasonable grounds to know may exist.
2.12 No Breach. The execution, delivery and performance of this Agreement
and the consummation of the transactions contemplated hereby will not:
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(a) violate any provision of the Articles of Incorporation or By-Laws
of USCI;
(b) violate, conflict with or result in the breach of any of the terms
of, result in a material modification of, otherwise give any other
contracting party the right to terminate, or constitute (or with notice or
lapse of time or both constitute) a default under, any contract or other
agreement to which USCI is a party or by or to which it or any of its
assets or properties may be bound or subject;
(c) violate any order, judgment, injunction, award or decree of any
court, arbitrator or governmental or regulatory body against, or binding
upon, USCI or upon the securities, properties or business to USCI; or
(d) violate any statute, law or regulation of any jurisdiction
applicable to the transactions contemplated herein.
2.13 Authority to Execute and Perform Agreements. USCI has the full legal
right and power and all authority and approval required to enter into, execute
and deliver this Agreement and to perform fully its obligations hereunder. This
Agreement has been duly executed and delivered and is the valid and binding
obligation of USCI enforceable in accordance with its terms, except as may be
limited by bankruptcy, moratorium, insolvency or other similar laws generally
affecting the enforcement of creditors' rights. The execution and delivery of
this Agreement and the consummation of the transactions contemplated hereby and
the performance by USCI of this Agreement, in accordance with its respective
terms and conditions will not:
(a) require the approval or consent of any governmental or regulatory
body or the approval or consent of any other person except the approval or
consent of the shareholders of USCI which USCI represents and warrants it
has duly obtained;
(b) conflict with or result in any breach or violation of any of the
terms and conditions of, or constitute (or with any notice or lapse of time
or both would constitute) a default under, any order, judgment or decree
applicable to USCI, or any instrument, contract or other agreement to which
USCI is a party or by or to which USCI is bound or subject; or
(c) result in the creation of any lien or other encumbrance on the
assets or properties of USCI.
2.14 Material Statements and Facts. No representation or warranty by USCI
in this Agreement or in any document or schedule to be delivered by them
pursuant hereto, and no written statement, certificate or instrument furnished
or to be furnished by USCI pursuant hereto or in connection with the
negotiation, execution or performance of this Agreement contains or will contain
any untrue statement of a material fact or omits or will omit to state any fact
necessary to make any statement herein or therein not materially misleading or
necessary to complete and correct presentation of all material aspects of the
business of USCI.
ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF HOLDINGS
Holdings hereby represents and warrants as follows:
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3.1 Organization and Good Standing; Ownership of Holdings Shares. Holdings
is a corporation duly organized, validly existing and in good standing under the
laws of the State of Delaware. It has the corporate power to own its own
property and to carry on its business as now being conducted and is duly
qualified to do business in any jurisdiction where so required except where the
failure to so qualify would have no material impact. There are no outstanding
subscriptions, rights, options, warrants or other agreements obligating Holdings
to issue, sell or transfer any stock or other securities of Holdings except the
warrants and options listed on Schedule 3.1 attached hereto and made a part
hereof.
3.2 Corporate Authority. Holdings has the corporate power to enter into
this Agreement and to perform its obligations hereunder and thereunder. The
execution and delivery of this Agreement and the consummation of the
transactions contemplated hereby have been duly authorized by the Board of
Directors of Holdings and the Shareholders. The execution and performance of
this Agreement will not constitute a material breach of any agreement,
indenture, mortgage, license or other instrument or document to which Holdings
is a party and will not violate any judgment, decree, order, writ, rule,
statute, or regulation applicable to Holdings or its properties. The execution
and performance of this Agreement will not violate or conflict with any
provision of the respective Certificate of Incorporation or by-laws of Holdings.
3.3 Holdings Shares. At the Closing, the Holdings Shares to be issued and
delivered to the shareholders of USCI hereunder will when so issued and
delivered, constitute valid and legally issued shares of Holdings capital stock,
fully-paid and nonassessable.
3.4 Access to Records. The corporate financial records, minute books and
other documents and records of Holdings have been made available to USCI prior
to the Closing hereof.
3.5 Taxes. Holdings by the Closing Date, will have filed all material tax,
governmental and/or related forms and reports (or extensions thereof) due or
required to be filed and has (or will have) paid or made adequate provisions for
all taxes or assessments which have become due as of the Closing Date.
3.6 Compliance with Laws. Holdings has complied with all federal, state,
county and local laws, ordinances, regulations, inspections, orders, judgments,
injunctions, awards or decrees applicable to it or its business which, if not
complied with, would materially and adversely affect the business of Holdings.
3.7 No Breach. The execution, delivery and performance of this Agreement
and the consummation of the transactions contemplated hereby will not:
(a) violate any provision of the Certificate of Incorporation or
By-Laws of Holdings;
(b) violate, conflict with or result in the breach of any of the terms
of, result in a material modification of, otherwise give any other
contracting party the right to terminate, or constitute (or with notice or
lapse of time or both constitute) a default under, any contract or other
agreement to which Holdings is a party or by or to which it or any of its
assets or properties may be bound or subject;
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(c) violate any order, judgment, injunction, award or decree of any
court, arbitrator or governmental or regulatory body against, or binding
upon, Holdings or upon the properties or business of Holdings; or
(d) violate any statute, law or regulation of any jurisdiction
applicable to the transactions contemplated herein which could have a
materially adverse effect on the business or operations of Holdings.
3.8 Actions and Proceedings. Holdings is not a party to any material
pending litigation nor, to its knowledge, is any governmental investigation or
proceeding, material litigation, claim, or assessment threatened against
Holdings.
3.9 Brokers or Finders. No broker's or finder's fee will be payable by
Holdings in connection with the transactions contemplated by this Agreement, nor
will any such fee be incurred as a result of any actions by Holdings or any of
the Shareholders except as appearing on Schedule 2.8 and 3.9 as one Schedule
attached hereto and made apart hereof.
3.10 Capitalization. The authorized capital stock of Holdings consists of
20,000,000 shares of Common Stock, $.001 par value, of which the aggregate
number of shares set forth on Exhibit A are presently issued and outstanding,
and 2,000,000 shares of Preferred Stock, $.001 par value, of which no shares are
presently issued and outstanding. Holdings has not granted, issued or agreed to
grant, issue or make any warrants, options, subscription rights or any other
commitments of any character relating to the issued or unissued shares of
capital stock of Holdings, except for the warrants and options set forth on
Schedule 3.1 attached hereto and made a part hereof.
3.11 Material Statements and Facts. No representation or warranty by
Holdings in this Agreement or in any document or schedule to be delivered by it
pursuant hereto, and no written statement, certificate or instrument furnished
or to be furnished USCI pursuant hereto or in connection with the negotiation,
execution or performance of this Agreement contains or will contain any untrue
statement of a material fact or omits or will omit to state any fact necessary
to make any statement herein or therein not materially misleading or necessary
to complete and correct presentation of all material aspects of the business of
Holdings.
ARTICLE 4
CONDITIONS PRECEDENT
4.1 Conditions Precedent to the Obligation of Holdings. All obligations of
Holdings under this Agreement are subject to the fulfillment, prior to or as of
the Closing Date, as indicated below, of each of the following conditions:
(a) The representations and warranties by or on behalf of USCI and Xxxxxxx
X. Xxxxxxxx, an officer and the principal shareholder of USCI, contained in this
Agreement or in any certificate or document delivered pursuant to the provisions
hereof shall be true in all material respects at and as of Closing Date as
though such representations and warranties were made at and as of such time.
(b) USCI shall have performed and complied in all material respects, with
all covenants, agreements, and conditions set forth in, and shall have executed
and delivered all documents required by this Agreement to be performed or
complied with or executed and delivered by USCI prior to or at the Closing.
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(c) On or before the Closing, the Board of Directors and the shareholders
of USCI shall have approved in accordance with Utah law the execution, delivery
and performance of this Agreement and the consummation of the transactions
contemplated herein and authorizing all of the necessary and proper action to
enable USCI to comply with the terms of the Agreement.
(d) The Merger shall be permitted by Utah law and USCI shall have
sufficient shares of USCI's capital stock authorized to complete the Merger.
(e) At the Closing, all instruments and documents delivered to Holdings
pursuant to provisions hereof shall be reasonably satisfactory to legal counsel
for Holdings.
4.2 Conditions Precedent to the Obligations of USCI. All obligations of
USCI under this Agreement are subject to the fulfillment, prior to or at
Closing, of each of the following conditions:
(a) The representations and warranties by Holdings and the Shareholders,
contained in this Agreement or in any certificate or document delivered pursuant
to the provisions hereof shall be true in all material respects at and as of the
Closing as though such representations and warranties were made at and as of
such time;
(b) Holdings shall have performed and complied with, in all material
respects, with all covenants, agreements, and conditions set forth in, and shall
have executed and delivered all documents required by this Agreement to be
performed or complied or executed and delivered by them prior to or at the
Closing;
(c) On or before the Closing, the Board of Directors and shareholders of
Holdings shall have approved in accordance with Delaware law the execution,
delivery and performance of this Agreement and the consummation of the
transactions contemplated herein and authorizing all of the necessary and proper
action to enable Holdings to comply with the terms of the Agreement.
(d) The Merger shall be permitted by Delaware law and Holdings shall have
sufficient shares of Holdings' capital stock authorized to complete the Merger.
(e) At the Closing, all instruments and documents delivered to USCI
pursuant to provisions hereof shall be reasonably satisfactory to legal counsel
for USCI.
ARTICLE 5
ADDITIONAL COVENANTS
5.1 Corporate Examinations and Investigations. Prior to the Closing Date,
the parties acknowledge that they have been entitled, through their employees
and representatives, to make such investigation of the assets, properties,
business and operations, books, records and financial condition of the other as
they each may reasonably require. No investigations, by a party hereto shall,
however, diminish or waive any of the representations, warranties, covenants or
agreements of the party under this Agreement.
5.2 Expenses. Each party hereto agrees to pay its own costs and expenses
incurred in negotiating this Agreement and consummating the transactions
described herein.
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5.3 Further Assurances. The parties shall execute such documents and other
papers and take such further actions as may be reasonably required or desirable
to carry out the provisions hereof and the transactions contemplated hereby.
Each such party shall use its best efforts to fulfill or obtain the fulfillment
of the conditions to the Closing, including, without limitation, the execution
and delivery of any documents or other papers, the execution and delivery of
which are necessary or appropriate to the Closing.
5.4 Confidentiality. In the event the transactions contemplated by this
Agreement are not consummated, USCI, Holdings and the Shareholders agree to keep
confidential any information disclosed to each other in connection therewith for
a period of two years from the date hereof; provided, however, such obligation
shall not apply to information which:
(a) at the time of the disclosure was public knowledge;
(b) after the time of disclosure becomes public knowledge (except due
to the action of the receiving party); or
(c) the receiving party had within its possession at the time of
disclosure.
ARTICLE 6
TERMINATION AND
SURVIVAL OF REPRESENTATIONS AND WARRANTIES OF USCI
6.1 Termination by Mutual Consent. This Agreement may be terminated and the
Merger may be abandoned at any time prior to the effective date of the Merger
specified in the Plan of Merger by the mutual consent of USCI and Holdings.
6.2 Other Termination. This Agreement may be terminated and the Merger may
be abandoned by action of the Board of Directors of Holdings if: (a) the Merger
shall not have been consummated by the effective date of the Merger specified in
the Plan of Merger or (b) the consent or approval of the shareholders of
Holdings shall not have been obtained at a meeting duly convened therefor or by
written consent in lieu of a special meeting in accordance with the applicable
laws of the State of Delaware.
6.3 Survival of Representations and Warranties.
(a) Notwithstanding any right of Holdings to investigate the affairs of
USCI and its shareholders, Holdings has the right to rely fully upon
representations, warranties, covenants and agreements of USCI and Xxxxxxx X.
Xxxxxxxx contained in this Agreement or in any document delivered to Holdings by
Xxxxxxx X. Xxxxxxxx, USCI and/or its shareholders or any of their respective
representatives, in connection with the transactions contemplated by this
Agreement. All such representations, warranties, covenants and agreements shall
survive the execution and delivery hereof and the Closing for 12 months
following the Closing.
(b) Notwithstanding any right of USCI to investigate the affairs of
Holdings and the Shareholders, USCI has the right to rely fully upon
representations, warranties, covenants and agreements of Holdings and the
Shareholders contained in this Agreement or in any document delivered to USCI by
Holdings and the Shareholders or any of their representatives, in connection
with the transactions contemplated by this Agreement. All such representations,
warranties, covenants and
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agreements shall survive the execution and delivery hereof and the Closing for
12 months following the Closing.
ARTICLE 7
DELIVERIES AT CLOSING
At the Closing, the following transactions shall occur, all of such
transactions being deemed to occur simultaneously:
(a) USCI will deliver, or will cause to be delivered, to Holdings the
following:
(i) a certificate of the Secretary of USCI, to the effect that all
representations and warranties made by USCI under this Agreement are true
and correct as of the Closing, the same as though originally given to USCI
on said date;
(ii) a certificate executed by Xxxxxxx X. Xxxxxxxx, an officer and the
principal shareholder of USCI, to the effect that (A) all representations
and warranties of USCI made under this Agreement are true and correct as of
the Closing and (B) USCI does not have any Liabilities as of the Closing,
all the same as though originally given to USCI on said date;
(iii) a certificate from the State of Utah dated at or about the
Closing Date to the effect that USCI is in good standing under the laws of
said state;
(iv) stock certificates representing the USCI Shares duly endorsed (or
executed stock powers), which shall be exchanged for Holdings Shares as
described in Section 1.3, above; and
(v) certified copies of resolutions by USCI's Board of Directors and
minutes of a special meeting of its shareholders authorizing the
transactions contemplated by this Agreement; and
(vi) such other instruments, documents and certificates, if any, as
are required to be delivered pursuant to the provisions of this Agreement.
(b) Holdings will deliver or cause to be delivered to USCI:
(i) a certificate of the Secretary or another officer of Holdings, to
the effect that all representations and warranties of Holdings made under
this Agreement are true and correct as of the Closing, the same as though
originally given to USCI on said date;
(ii) a certificate from the Delaware Secretary of State dated at or
about the Closing Date to the effect that Holdings is in good standing
under the laws of said state;
(iii) stock certificates representing the Holdings Shares to be issued
as a part of the exchange of shares and Merger as described in Section 1.3,
above;
(iv) certified copies of resolutions by Holding's Board of Directors
authorizing the transactions contemplated by this Agreement;
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(v) such other instruments, documents, and certificates, if any, as
are required to be delivered pursuant to the provisions of this Agreement;
and
(vi) all other items, the delivery of which is a condition precedent
to the obligations of USCI, as set forth in Section 4.2 hereof.
ARTICLE 8
MISCELLANEOUS
8.1 Waivers. The waiver of a breach of this Agreement or the failure of any
party hereto to exercise any right under this Agreement shall in no way
constitute waiver as to future breach whether similar or dissimilar in nature or
as to the exercise of any further right under this Agreement.
8.2 Amendment. This Agreement may be amended or modified only by an
instrument signed by all of the parties hereto or the duly authorized
representatives of the respective parties hereto.
8.3 Assignment. This Agreement is not assignable except by operation of
law.
8.4 Notice. Until otherwise specified in writing, the mailing addresses of
the parties of this Agreement shall be as follows:
Holdings: Alltech International Holdings, Inc.
0000 Xxxxxxxx Xxxx
Xxxxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx Xxxxx, President
Shareholders: c/o Alltech International Holdings, Inc.
(Attn: the respective Shareholder)
0000 Xxxxxxxx Xxxx
Xxxxxxxxx, Xxxxxxxx 00000
USCI: Xxxxxxx X. Xxxxxxxx
0000 Xxxxx Xxxx
Xxxxxxxxx, XX 00000
Any notice or statement given under this Agreement shall be deemed to have
been given if sent by hand delivery or by U.S. registered mail, return receipt
requested, addressed to the other party at the address indicated above or at
such other address which shall have been furnished in writing to the addressor
upon hand delivery or three days after so mailing.
8.5 Governing Law. This Agreement shall be construed, and the legal
relations of the parties determined, in accordance with, the laws of the State
of Illinois, thereby precluding any choice of law rules which may direct the
application of the laws of any other jurisdiction.
8.6 Arbitration.
(a) All disputes and differences arising in connection with or relating to
the provisions of this Agreement, including what constitutes a dispute or
difference, shall be settled and finally
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determined by arbitration unless agreement in writing has been reached between
the parties within 90 days after either party shall have given written notice to
the other party of the existence of a dispute or difference which it desires to
have arbitrated. Such notice shall state the point or points in dispute.
(b) Arbitration shall be conducted in Chicago, Illinois, in accordance with
the rules of the American Arbitration Association by three arbitrators, one of
whom shall be selected by Holdings, one by USCI and a Chairman of the
Arbitration Court selected by the two arbitrators so selected. The applicable
law shall be as provided above. Each party shall notify the other party of the
arbitrator selected by it within 60 days of the giving of written notice
referred to above. In the event that the two arbitrators selected by the parties
are unable to reach agreement as to the third arbitrator, the third arbitrator
shall be selected by the American Arbitration Association. Arbitration shall be
held in the jurisdiction of the party against which or whom the arbitration is
instituted. Each party shall be given the opportunity to present to the
arbitrators its evidence, witnesses and arguments, and the right to be
represented by counsel of its selection when the other party be represented by
counsel, of its selection when the other party presents its evidence, witnesses
and arguments. In the event one of the parties shall fail, after reasonable
notice, to appear and participate in the arbitration proceedings as normally
interpreted by the above-mentioned rules, the arbitrators shall be entitled to
make their decision and award on the basis of evidence, witnesses and arguments
presented by the party appearing.
(c) The decision and the award of the arbitrators shall be in writing and
shall be final and binding upon the parties hereto. Judgment upon the award
rendered my be entered in any court having jurisdiction thereof, or application
may be made to such court for a judicial acceptance of the award and an order of
enforcement, as the case may be. The expenses of arbitration shall be borne in
accordance with the determination of the arbitrators with respect thereto.
Pending decision by the arbitrators with respect to the dispute or difference
undergoing arbitration, all other obligations of the parties hereto shall
continue as stipulated herein, and all monies not directly involved in such
dispute or difference shall be paid when due.
8.7 Publicity. No publicity release or announcement concerning this
Agreement or the transactions contemplated hereby shall be issued by either
party hereto at any time from the signing hereof without advance approval in
writing of the form and substance by the other party.
8.8 Entire Agreement. This Agreement (including the Exhibits and Schedules
hereto) and the collateral agreements and other documents executed in connection
with the consummation of the transactions contemplated herein contain the entire
agreement among the parties with respect to the purchase, exchange and issuance
of the Holdings Shares and the USCI Shares and related transactions, and
supersede all prior agreements, written or oral, with respect thereto. All
Exhibits and Schedules hereto are hereby incorporated and made a part hereof by
this reference, regardless of whether expressly so incorporated elsewhere in
this Agreement.
8.9 Headings. The headings in this Agreement are for reference purposes
only and shall not in any way effect the meaning or interpretation of this
Agreement.
8.10 Severability of Provisions. The invalidity or unenforceability of any
term, phrase, clause, paragraph, restriction, covenant, agreement or the
provision of this Agreement shall in no way affect the validity or enforcement
of any other provision or any part thereof.
8.11 Counterparts; Facsimile Signatures. This Agreement may be executed in
any number of counterparts, each of which when so executed, shall constitute an
original hereof, but all of which
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together shall consider but one and the same document. Signatures transmitted by
facsimile shall be considered authentic and legally binding.
8.12 Binding Effect. This Agreement shall be binding upon the parties
hereto and inure to the benefit of the parties, their respective heirs,
administrators, executors, successors and permitted assigns.
[Signature pages follow.]
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IN WITNESS WHEREOF, the parties have executed this Agreement on the date
first above written.
ALLTECH INTERNATIONAL HOLDINGS, INC.,
a Delaware corporation
By: /s/ Xxxxxxx Xxxxx
----------------------------------------
Xxxxxxx Xxxxx, Chief Executive Officer
U.S. CONSOLIDATED INDUSTRIES, INC.,
a Utah corporation
By: /s/ Xxxxxxx X. Xxxxxxxx
----------------------------------------
Xxxxxxx X. Xxxxxxxx, President
[This is a signature page to the Agreement and Plan of Reorganization.]
13
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 X. Xxxxx
----------------------------------- ------------------------------------------
(Signature) Signature)
Name: Xxxxxx Xxxxx Name: Trustee, The Xxxxxxx X. Xxxxx Trust
u/a/d 7/21/89
/s/ Xxxxxxx X. 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
/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
14
/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 Agreement and Plan of Reorganization]
15
EXHIBIT A
Holdings Shareholders
Shares of Holdings'
Shareholders Common Stock
---------------------------------------------------- -------------------
Xxxxx Xxxxxx 18,314
Xxx Xxxxxxxx 23,296
Xxxxx Xxxxx 36,628
Xxxxx Xxxxx 23,296
Xxxxxx Xxxxx 265,754
Xxxxxx Xxxxx 18,314
Xxxxxx Xxxxx 265,757
Xxxxxxx Xxxxx - Trust dated 07/21/89 6,663,044
Xxxxxxx Xxxxx - Grandchildren's Trust Xxxxxx Trustee 128,199
Link Children Trust - Xxxxx Xxxxx Trustee 42,733
Xxxxxxxx Xxxxx 18,314
Xxxxxx Xxxxx 265,754
Xxxxxxx Xxxxx 18,314
Xxxxx Xxxxx 18,314
Xxxxx Xxxxx 18,314
Xxxx Xxxxxxxx 18,314
Xxxx Xxxxx 5,824
Xxxxxxxx Xxxxxx 18,314
Xxxxxxx Xxxxx 23,296
Xxxxxxx Xxxxxx 219,770
Xxxxxx XxXxxxxx 11,648
Xxx Xxxxxxx 5,824
Xxxxxx Xxxxxxxxxx 5,824
Xxxxxx Xxxxx 23,296
Xxxxxxxx Xxxxxxxxx 11,648
Xxxx Xxxxx 18,314
Xxxxx Xxxxxxx 46,494
Xxxxxx Xxxxxxx 46,494
Xxxxxx Xxxxxxxx 12,533
Xxxxxx Xxxxxxx 12,209
EXHIBIT B
Plan of Merger
PLAN AND AGREEMENT OF MERGER
of
ALLTECH INTERNATIONAL HOLDINGS, INC.
(a Delaware corporation)
and
U.S. CONSOLIDATED INDUSTRIES, INC.
(a Utah corporation)
--------------------------------------------------------------------------------
Pursuant to Subchapter IX of the Delaware General Corporation Law
and Part 11 of the Utah Business Corporation Act
--------------------------------------------------------------------------------
THIS PLAN AND AGREEMENT OF MERGER (the "Agreement") is made and entered
into as of January 1, 2003 (the "Effective Date"), between ALLTECH INTERNATIONAL
HOLDINGS, INC., a Delaware corporation ("ALLTECH"), and U.S. CONSOLIDATED
INDUSTRIES, INC., a Utah corporation ("USCI") (ALLTECH and USCI are sometimes
hereinafter collectively referred to as the "Constituent Entities").
WHEREAS, the registered office of ALLTECH is at 0000 Xxxxxxxxxxx Xxxx,
Xxxxx 000, Xxxxxxxxxx, Xxxxxxxx, and Corporation Service Company is the
registered agent therein, in charge thereof, upon whom process against ALLTECH
may be served within said state; and
WHEREAS, the registered office of USCI is at 00 Xxxx Xxxxxxxx, 8th Floor,
Salt Lake City, Utah, and CT Corporation System is the registered agent therein,
in charge thereof, upon whom process against USCI may be served within said
state; and
WHEREAS, ALLTECH was heretofore organized under the laws of the State of
Delaware, its Certificate of Incorporation having been filed in the office of
the Secretary of State of Delaware on October 31, 2002; and
WHEREAS, USCI (formerly, X-Cell Development, Inc.) was heretofore organized
under the laws of the State of Utah, its Certificate of Formation having been
filed in the office of the Secretary of State of Utah on May 22, 1984; and
WHEREAS, the total number of shares of stock which ALLTECH has authority to
issue is 20,000,000 shares of common stock, $0.001 par value (the "Alltech
Common Stock"), of which 8,304,147 shares are issued and outstanding (and
695,853 shares which are reserved for issuance pursuant to a stock option plan)
and 2,000,000 shares of preferred stock, $0.001 par value, none of which is
issued and outstanding; and
WHEREAS, the total number of shares of stock which USCI has authority to
issue is 50,000,000 shares of common stock, $0.001 par value (the "USCI Common
Stock"), of which 18,900,000 shares are issued and outstanding.
WHEREAS, ALLTECH, USCI, the directors of ALLTECH and the directors of USCI
deem it advisable and to the advantage, welfare and best interests of the
Constituent Entities and their respective shareholders, to merge said
Constituent Entities under and pursuant to the provisions of Subchapter IX of
the Delaware General Corporation Law and Part 11 of the Utah Business
Corporation Act (collectively, the "Acts").
NOW THEREFORE, in consideration of the mutual agreements, provisions,
covenants and grants herein contained, it is hereby agreed by and between the
said parties hereto, and in accordance with the Acts, that ALLTECH and USCI are
hereby merged into a single corporation (the "Merger"), wherein ALLTECH shall be
the surviving entity and the separate existence of USCI shall cease.
AND the parties hereto do, by these presents, agree to and prescribe the
terms and conditions of the Merger, and the mode of carrying the same into
effect, which terms and conditions and mode of carrying the same into effect
said parties hereto deem necessary, and the parties hereto do mutually and
severally agree and covenant to observe, keep and perform, that is to say:
ARTICLE I
USCI shall be and is hereby merged into ALLTECH pursuant to the Acts.
ARTICLE II
The name of the surviving corporation is ALLTECH INTERNATIONAL HOLDINGS,
INC., a Delaware corporation.
ARTICLE III
The manner and basis of converting the common stock of the Constituent
Entities is as follows:
Each 31.5 shares of USCI Common Stock that are issued and outstanding
immediately before the Effective Date shall be converted at the Effective
Date into one fully paid share of Alltech Common Stock.
ARTICLE IV
1. The ALLTECH name, identity, existence, franchises, rights and immunities
of ALLTECH shall continue unaffected and unimpaired and shall be governed by the
laws of Delaware. ALLTECH shall possess the powers, privileges and rights
granted by and shall be governed by and subject to this Agreement.
18
2. The Certificate of Incorporation of ALLTECH shall be the Certificate of
Incorporation of the surviving corporation as the same shall be in effect on the
Effective Date of the Merger.
3. The By-Laws of ALLTECH shall continue to be the By-Laws of the surviving
corporation, and said By-Laws shall continue in full force and effect until
amended and changed in the manner prescribed by the provisions of the Delaware
General Corporation Law, the Certificate of Incorporation and said By-Laws.
4. The USCI name, organization, Articles of Incorporation and By-Laws shall
cease on the Effective Date of the Merger.
5. The officers and directors of ALLTECH shall continue to serve as the
officers and directors of the surviving corporation until duly changed pursuant
to ALLTECH's By-Laws.
6. The surviving corporation's principal place of business will be 0000
Xxxxxxxx Xxxx, Xxxxxxxxx, Xxxxxxxx 00000 (the "Place of Business").
7. This Agreement is on file at the Place of Business.
8. A copy of this Agreement will be furnished by the surviving corporation
on request and without cost, to any person holding an interest in either of the
Constituent Entities.
ARTICLE V
1. At any time prior to the filing of this Agreement with the Secretary of
State of Delaware, this Agreement may be amended, altered or repealed and other
provisions authorized by the statutes of the State of Delaware and the State of
Utah at the time in force may be added or inserted in the manner and at the time
prescribed by such statutes, and all rights at any time conferred upon the
directors and shareholders of the Constituent Entities by this Agreement are
granted subject to the provisions of this Article V.
2. At any time prior to the filing of this Agreement with the Secretary of
State of Delaware, this Agreement may be terminated or amended by the respective
and appropriate directors of either of the Constituent Entities, if
circumstances arise which, in the opinion of the directors, make such action
advisable.
19
ARTICLE VI
1. Upon the consummation of the Merger hereby provided for, each and every
right, privilege, power, and franchise, and each and every other interest of
each of the Constituent Entities, shall be thereafter as fully and effectually
the property of ALLTECH as though they were the property of each of the
Constituent Entities; provided, however, that all rights of creditors and all
liens upon any property of the parties hereto, and title to any real estate,
whether by deed or otherwise, vested in ALLTECH shall not revert or be in any
way impaired by reason of the Merger, and shall be preserved unimpaired; and all
rights of creditors, debts, liabilities and duties of USCI shall thenceforth
attach to ALLTECH and may be enforced against it to the same extent as if said
rights of creditors, debts, liabilities and duties had been incurred or
contracted by ALLTECH.
2. If at any time ALLTECH shall deem or be advised that any further
assignments, assurances in the law or other things are necessary or desirable to
vest in it, according to the terms hereof, the title to any property of USCI,
said USCI, and/or ALLTECH, and their proper directors, officers and
shareholders, shall and will execute and do all such proper assignments,
assurances in the law and other things necessary or proper to vest title to such
property in ALLTECH and otherwise to carry out the purposes of this Agreement.
ARTICLE VII
This Agreement has been adopted by the directors and by the shareholders of
USCI in accordance with the Utah Business Corporation Act and by the directors
and shareholders of ALLTECH in accordance with the Delaware General Corporation
Law. If this Agreement is not thereafter and has not theretofore been terminated
or amended as permitted by the provisions hereof, then a Certificate of Merger
shall be filed and recorded in accordance with the Acts, respectively. Such
filings shall be made on the same day. The Merger shall become effective on the
date the appropriate documents are filed with the Delaware Secretary of State
and the Utah Secretary of State.
ARTICLE VIII
For the convenience of the parties hereto and to facilitate the filing of
this Agreement, any number of counterparts hereof may be executed and each
counterpart shall be deemed to be an original. Facsimile signatures shall be
considered authentic and legally binding.
20
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the
day and year first above written.
ALLTECH INTERNATIONAL HOLDINGS, INC., U.S. CONSOLIDATED INDUSTRIES, INC.,
a Delaware corporation a Utah corporation
By: By:
-------------------------------------- --------------------------------
Xxxxxxx Xxxxx, Chief Executive Officer Xxxxxxx X. Xxxxxxxx, President
[Signature page to the Plan and Agreement of Merger]
21
SCHEDULE 3.1
Holdings Options
Optionholder Options
---------------------------------------------------------------------- -------
Xxx Xxxxxxxx 52,424
Xxxx Xxxxxxxx 20,167
Xxxxxxx Xxxxx 15,698
Xxxx Xxxxxxx 14,123
Xxxxxxx Xxxxxxx 19,712
Xxxxxx Xxxxxx 29,413
Xxxxx Xxxxxxxxxxx 18,897
Xxxxxxx Xxxx 16,309
Xxxx Xxxxx 65,684
Xxxxx Xxxx 18,138
Xxxxxxx Xxxxxx 27,175
Xxxxxx XxXxxxxx 18,851
Xxxxxx XxXxxxxx 32,413
Xxxxxxxx Xxxxxxxx 22,203
Xxxx Xxxxx 17,273
Xxxxxx Xxxxx 18,033
Xxxxxxxxx Xxxxxxxxxx 12,448
Xxxxx Xxxxxxx 24,031
Xxxxxx Xxxxxxxxx 23,730
Xxxxxx Xxxxxxxxx 19,658
Xxxxxx Xxxxx 41,100
Xxxxxxxxx Xxxxxxx 13,720
Xxxxxxxx Xxxxxxxxx 19,666
Xxxx Xxxxx 18,546
Xxxxx Xxxxxxxx 18,189
Xxxxxx Xxxxxxxxxx 21,998
Xxxxxx Xxxxxx 15,546
Xxxxxxx Xxxxxxx 26,769
Xxxxxx Xxxxxxxx 21,696
Xxxxxx Xxxxxxxx 4,179
Xxxxxx Xxxxxxx 8,064
-------
TOTAL: 695,853
SCHEDULES 2.8 AND 3.9
All of the parties to this Agreement agree and represent to one another
that there has been no broker or finder with respect to any part of this
transaction, including but not limited to its respective officers, directors,
principals, employees, agents and shareholders, all of whom are waiving and are
not claiming any fee or compensation by reason thereof.
