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EXHIBIT 2.2
AGREEMENT AND PLAN OF SHARE EXCHANGE
This AGREEMENT AND PLAN OF SHARE EXCHANGE, dated as of ______________,
1997 (the "Agreement"), is by and between UNIFAB International, Inc., a
Louisiana corporation ("International"), and Universal Partners, Inc., a
Louisiana corporation ("Partners").
WITNESSETH:
WHEREAS, Partners is the owner of 510 shares of Class A common stock,
$1.00 par value per share (the "Shares"), of Universal Fabricators
Incorporated, a Delaware close corporation ("Fabricators"), which represent all
of the issued and outstanding shares of Class A common stock of Fabricators;
WHEREAS, it is the parties mutual intent that the exchange of the Shares
contemplated by this Agreement be part of plan of reorganization of Partners
that constitutes a tax-free reorganization under Section 368 of the Internal
Revenue Code and that immediately following the Closing, Partners will enter
into a plan of liquidation pursuant to which it will pay or provide for the
payment of liabilities of Partners and distribute the New Shares (as defined
herein) and all remaining assets of Partners to the shareholders of Partners.
WHEREAS, Partners desires to exchange the Shares for shares of common
stock, $0.01 par value per share, of International ("International Common
Stock");
NOW, THEREFORE, in consideration of the mutual promises, covenants and
agreements set forth herein and in reliance upon the undertakings,
representations, warranties and indemnities contained herein, International and
Partners hereby agree as follows:
ARTICLE 1
EXCHANGE OF SHARES; CLOSING
Section 1.1 Sale of Shares. Subject to the terms and conditions
herein stated, Partners agrees at the Closing to exchange with full title
guarantee, transfer, assign and deliver to International, and International
agrees to acquire from Partners, the Shares, free and clear of any and all
Liens.
Section 1.2 Consideration. In consideration for its acquisition of
the Shares, International agrees at the Closing to issue and deliver 1,785,000
shares of International Common Stock (the "New Shares") to Partners.
Section 1.3 Closing. The Closing shall take place simultaneously with
the Closing Time of the public offering of the shares of International Common
Stock pursuant to that certain Underwriting Agreement (the "Underwriting
Agreement"), by and among International, Fabricators,
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Partners, XxXxxxxxx Incorporated ("McDermott") and Xxxxxx Xxxxxx & Company,
Inc. and Xxxxxxxx Inc. (as representatives of the several underwriters named
therein) and the other transactions contemplated by that certain Transition
Agreement dated as of _________________, 1997 by and among Partners,
International, Fabricators, Universal Partners, Inc. and Xxxxxx X. Xxxxxx.
Section 1.4 Deliveries at Closing. At the Closing (a) International
shall deliver to Partners one or more certificates representing the New Shares
and (b) Partners shall deliver to International one or more certificates
representing the Shares duly endorsed to International, which shall transfer to
International good title to the Shares free and clear of any adverse claim or
Lien.
ARTICLE 2
REPRESENTATIONS AND WARRANTIES OF PARTNERS
Partners represents and warrants to International as of the date hereof
as follows:
Section 2.1 Ownership. Partners is the sole record and beneficial
owner of the Shares, which are represented by Certificate Number 1. Partners
has good and marketable title to the Shares and the absolute right to deliver
the Shares in accordance with the terms of this Agreement, free and clear of
all Liens. The transfer of the Shares to International in accordance with the
terms of this Agreement transfers good and marketable title to the Shares to
International free and clear of all Liens, restrictions, rights, options and
claims of every kind.
Section 2.2 Authority; Enforceability. Partners has full legal right,
power and authority to execute, deliver and perform this Agreement and to
consummate the transactions contemplated hereby. This Agreement has been duly
executed and delivered by Partners and constitutes, and each other agreement,
instrument or documents executed or to be executed by Partners in connection
with the transactions contemplated hereby has been duly executed and delivered
by Partners and constitutes a valid and legally binding obligation of Partners
enforceable against Partners in accordance with their respective terms, except
as (a) enforceability may be limited by applicable bankruptcy, insolvency,
fraudulent transfer, moratorium or similar laws from time to time in effect
affecting creditors' rights generally and (b) the availability of equitable
remedies may be limited by equitable principles of general applicability.
Section 2.3 No Conflict. Neither the execution and the delivery of
this Agreement by Partners, nor the consummation of the transactions
contemplated hereby (a) violate, conflict with, or result in a breach of any
provisions of, (b) constitute a default (or an event which, with notice or
lapse of time or both, would constitute a default) under, (c) result in the
termination of or accelerate the performance required by, (d) result in the
creation of any Lien upon the Shares under any of the terms, conditions or
provisions of the Articles of Incorporation or Bylaws of Partners or, to any
material extent, under the terms and conditions of any note, bond, mortgage,
indenture, deed of trust, lease, license, loan agreement or other instrument or
obligation to or by which Partners or any of its assets are bound, or (e) to
any material extent, violate any Applicable Law binding upon Partners or any of
its assets.
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Section 2.4 No Other Representations or Warranties. Except as set
forth above in this Section 2, no other representations or warranties, express
or implied, are made in this Agreement by Partners to International.
ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF INTERNATIONAL
International represents and warrants to Partners as of the date hereof
as follows:
Section 3.1 Organization. International is a corporation duly
organized, validly existing and in good standing under the laws of Louisiana
and has all requisite corporate power and authority to own its properties and
carry on its business as now being conducted.
Section 3.2 Capitalization. As of the date of this Agreement, the
authorized capital stock of International consists of 20,000,000 shares of
common stock, $0.01 par value per share, one share of which is validly issued
and outstanding, and 5,000,000 shares of preferred stock, no par value, none of
which are outstanding.
Section 3.3 Authority; Enforceability. International has the
requisite corporate power and authority to execute and deliver this Agreement
and to carry out its obligations hereunder. The execution, delivery and
performance of this Agreement and the consummation of the transactions
contemplated hereby have been duly authorized by all necessary corporate action
on the part of International and no other corporate proceedings on the part of
International are necessary to authorize this Agreement or to consummate the
transactions so contemplated. This Agreement has been duly executed and
delivered by International and constitutes a valid and binding obligation of
International, enforceable against International in accordance with its terms,
except as (a) enforceability may be limited by applicable bankruptcy,
insolvency, fraudulent transfer, moratorium or similar laws from time to time
in effect affecting creditors' rights generally and (b) the availability of
equitable remedies may be limited by equitable principles of general
applicability.
Section 3.4 No Conflict. Neither the execution and delivery of this
Agreement by International, nor the consummation of the transactions
contemplated hereby, do or will (a) violate, conflict with, or result in a
breach of any provisions of, (b) constitute a default (or an event which, with
notice or lapse of time or both, would constitute a default) under, (c) result
in the termination of or accelerate the performance required by, (d) result in
the creation of a Lien upon the New Shares under any of the terms, conditions
or provisions of the Articles of Incorporation or Bylaws of International or
any note, bond, mortgage, indenture, deed of trust, lease, license, loan
agreement or other instrument or obligation to or by which International or any
of its assets are bound, or (e) violate any Applicable Law binding upon
International and on any of its assets.
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Section 3.5 International Common Stock. All shares of International
Common Stock to be issued pursuant to this Agreement will be, when issued, duly
authorized, validly issued, fully paid and non-assessable.
Section 3.6 No Other Representations or Warranties. Except as set
forth above in this Section 3, no other representations or warranties, express
or implied, are made in this Agreement by International to Partners.
ARTICLE 4
INDEMNIFICATION; REMEDIES
Section 4.1 Indemnification by Partners. Except as otherwise
expressly provided in this Article 4, Partners, as its sole obligation and the
exclusive remedy of International and each of International's officers,
directors, employees, Affiliates, successors and assigns (International and
such persons being collectively referred to herein as "International's
Indemnified Persons"), shall defend, indemnify and hold harmless
International's Indemnified Persons, and shall reimburse International's
Indemnified Persons, for, from and against, each and every demand, claim,
action, loss (which shall include any diminution in value), liability,
judgment, damage, cost and expense (including, without limitation, interest,
penalties, costs of preparation and investigation, and the reasonable fees,
disbursements and expenses of attorneys, accountants and other professional
advisors) (collectively, "Losses") imposed on or incurred by International's
Indemnified Persons, directly or indirectly, relating to, resulting from or
arising out of: (a) any inaccuracy in any representation or warranty of
Partners in this Agreement, whether or not International's Indemnified Persons
relied thereon or had knowledge thereof, or (b) any breach or nonperformance of
any covenant, agreement or other obligation of Partners under this Agreement or
any certificate, document or other instrument delivered or to be delivered
pursuant hereto.
Section 4.2 Indemnification by International. Except as otherwise
expressly provided in this Article 4, International, as its sole obligation and
the exclusive remedy of Partners and each of Partners' officers, directors,
employees, Affiliates, successors and assigns (Partners and such persons being
collectively referred to herein as "Partners' Indemnified Persons"), shall
defend, indemnify and hold harmless Partners' Indemnified Persons, and shall
reimburse Partners' Indemnified Persons for, from and against all Losses
imposed on or incurred by Partners' Indemnified Persons, directly or
indirectly, relating to, resulting from or arising out of: (a) any inaccuracy
in any representation or warranty of International in this Agreement, whether
or not Partners' Indemnified Persons relied thereon or had knowledge thereof or
(b) any breach or nonperformance of any covenant, agreement or other obligation
of International under this Agreement or any certificate, document or other
instrument delivered or to be delivered pursuant hereto.
Section 4.3 Notice and Defense of Third Party Claims. If any third
party demand, claim, action or proceeding shall be brought or asserted under
this Article 4 against an indemnified party or any successor thereto (the
"Indemnified Person") in respect of which indemnity may be sought under this
Article 4 from an indemnifying person or any successor thereto (the
"Indemnifying Person"), the Indemnified Person shall give prompt written notice
thereof to the Indemnifying
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Person who shall have the right to assume its defense, including the hiring of
counsel reasonably satisfactory to the Indemnified Person and the payment of
all expenses; except that any delay or failure to so notify the Indemnifying
Person shall relieve the Indemnifying Person of its obligations under this
Article 4 only to the extent, if at all, that it is prejudiced by reason of
such delay or failure. The Indemnified Person shall have the right to employ
separate counsel in any of the foregoing actions, claims or proceedings and to
participate in the defense thereof, but the fees and expenses of such counsel
shall be at the expense of the Indemnified Person unless both the Indemnified
Person and the Indemnifying Person are named as parties and the Indemnifying
Person and the Indemnified Person shall in good faith agree that representation
by the same counsel is inappropriate. In the event that the Indemnifying
Person, within ten days after notice of any such action or claim, does not
assume the defense thereof, the Indemnified Person shall have the right to
undertake the defense, compromise or settlement of such action, claim or
proceeding for the account of the Indemnifying Person, subject to the right of
the Indemnifying Person to assume the defense of such action, claim or
proceeding with counsel reasonably satisfactory to the Indemnified Person at
any time prior to the settlement, compromise or final determination thereof.
Anything in this Article 4 to the contrary notwithstanding, the Indemnifying
Person shall not, without the Indemnified Person's prior consent, settle or
compromise any action or claim or consent to the entry of any judgment with
respect to any action, claim or proceeding for anything other than money
damages paid by the Indemnifying Person. The Indemnifying Person may, without
the Indemnified Person's prior consent, settle or compromise any such action,
claim or proceeding or consent to entry of any judgment with respect to any
such action or claim that requires solely the payment of money damages by the
Indemnifying Person and that includes as an unconditional term thereof the
release by the claimant or the plaintiff of the Indemnified Person from all
liability in respect of such action, claim or proceeding.
ARTICLE 5
DEFINED TERMS
Section 5.1 Definitions. In addition to the other defined terms used
herein, as used in this Agreement, the following terms when capitalized have
the meanings indicated.
"Affiliate" shall have the meaning ascribed by Rule 12b-2 promulgated
under the Exchange Act.
"Applicable Law" shall mean any statute, law, rule or regulation or any
judgement, order, writ, injunction or decree of any Governmental Entity to
which a specified Person or its property is subject.
"Closing" means the consummation of the transactions contemplated by
this Agreement.
"Governmental Entity" shall mean any court or tribunal in any
jurisdiction or any public, governmental or regulatory body, agency,
department, commission, board, bureau or other authority or instrumentality.
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"Liens" shall mean pledges, liens, defects, leases, licenses, equities,
options, rights to buy, conditional sales contracts, charges, claims,
encumbrances, security interests, easements, restrictions, chattel mortgages,
mortgages or deeds of trust, of any kind or nature whatsoever.
ARTICLE 6
MISCELLANEOUS
Section 6.1 Survival of Representations, Warranties and Agreements.
The representations, warranties, covenants and agreements in this Agreement or
in any instrument delivered pursuant to this Agreement shall survive the
Closing and shall not be limited or affected by any investigation by or on
behalf of any party hereto.
Section 6.2 Notices. All notices hereunder must be in writing and
shall be deemed to have been given upon receipt of delivery by: (a) personal
delivery to the designated individual, (b) certified or registered mail,
postage prepaid, return receipt requested, (c) a nationally recognized
overnight courier service (against a receipt therefor) or (d) facsimile
transmission with confirmation of receipt. All such notices must be addressed
as follows or such other address as to which any party hereto may have notified
the other in writing:
If to International, to:
P. O. Xxx 00000
Xxx Xxxxxx, Xxxxxxxxx 00000-0000
Attention: Xxxxxx X. Xxxxxx
Facsimile transmission No.: (000) 000-0000
If to Partners, to:
P. O. Xxx 00000
Xxx Xxxxxx, Xxxxxxxxx 00000-0000
Attention: Xxxxxx X. Xxxxxx
Facsimile transmission No.: (000) 000-0000
Section 6.3 Headings; Gender. When a reference is made in this
Agreement to a section, exhibit or schedule, such reference shall be to a
section, exhibit or schedule of this Agreement unless otherwise indicated. The
table of contents and headings contained in this Agreement are for reference
purposes only and shall not affect in any way the meaning or interpretation of
this Agreement. All personal pronouns used in this Agreement shall include the
other genders, whether used in the masculine, feminine or neuter gender, and
the singular shall include the plural and vice versa, whenever and as often as
may be appropriate.
Section 6.4 Entire Agreement; No Third Party Beneficiaries. This
Agreement (including the documents, exhibits and instruments referred to
herein) (a) constitutes the entire agreement and supersedes all prior
agreements, and understandings and communications, both written and oral,
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among the parties with respect to the subject matter hereof, and (b) is not
intended to confer upon any person other than the parties hereto any rights or
remedies hereunder.
Section 6.5 Governing Law. This Agreement shall be governed and
construed in accordance with the laws of the State of Louisiana without regard
to any applicable principles of conflicts of law.
Section 6.6 Assignment. Neither this Agreement nor any of the rights,
interests or obligations hereunder shall be assigned by any of the parties
hereto (whether by operation of law or otherwise) without the prior written
consent of the other party.
Section 6.7 Severability. If any term or other provision of this
Agreement is invalid, illegal or incapable of being enforced by reason of any
rule of law or public policy, all other conditions and provisions of this
Agreement shall nevertheless remain in full force and effect so long as the
economic or legal substance of the transactions contemplated hereby is not
affected in any adverse manner to either party. Upon such determination that
any term or other provision is invalid, illegal or incapable of being enforced,
the parties hereto shall negotiate in good faith to modify this Agreement so as
to effect the original intent of the parties as closely as possible in an
acceptable manner to the end that the transactions contemplated hereby are
fulfilled to the extent possible, and in any case such term or provision shall
be deemed amended to the extent necessary to make it no longer invalid, illegal
or unenforceable.
Section 6.8 Counterparts. This Agreement may be executed in multiple
counterparts, each of which shall be deemed an original and all of which taken
together shall constitute one and the same document.
Section 6.9 Amendment and Modification. This Agreement may not be
amended or modified except by an instrument in writing signed by each of the
parties hereto.
Section 6.10 Limitation of Liability. Notwithstanding any other
provision of this Agreement, in no event shall any party hereto be liable to
any other party hereto with respect to breach or violation of any provision in
this Agreement, whether based on contract, tort (including negligence), strict
liability or other theory of law or equity, for loss of anticipated profits or
consequential loss or damage of any nature arising at any time or from any
cause whatsoever.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
signed themselves or by their respective duly authorized officers as of the
date first written above.
UNIFAB INTERNATIONAL, INC.
By:
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Xxxxxx X. Xxxxxx, President
UNIVERSAL PARTNERS, INC.
By:
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Xxxxxx X. Xxxxxx, President
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