EXHIBIT 2.1
AMENDED AND RESTATED
AGREEMENT AND PLAN OF MERGER
Among
XXXXXXXXXXX INTERNATIONAL, INC.,
CHRISTIANA ACQUISITION, INC.,
CHRISTIANA COMPANIES, INC.
and
C2, INC.
dated as of
October 14, 1998
TABLE OF CONTENTS
ARTICLE I
THE MERGER................................................ 1
1.1 The Merger................................................ 1
1.2 Closing Date.............................................. 2
1.3 Consummation of the Merger................................ 2
1.4 Effects of the Merger..................................... 2
1.5 Articles of Incorporation; Bylaws......................... 2
1.6 Directors and Officers.................................... 2
1.7 Conversion of Securities.................................. 2
1.8 Exchange of Certificates.................................. 4
(a) Exchange Agent................................... 4
(b) Payment of Merger Consideration.................. 4
(c) Retention of Cash Pending Post Closing Audit..... 4
(d) Payment of Contingent Cash Consideration......... 4
(e) Exchange Procedure............................... 5
(f) Distributions with Respect to Unexchanged
Christiana Shares............................. 6
(g) No Further Ownership Rights in Christiana
Shares........................................... 6
(h) Escheat.......................................... 6
1.9 Taking of Necessary Action; Further Action................ 7
ARTICLE II
REPRESENTATIONS AND WARRANTIES............................ 7
2.1 Representations and Warranties of Weatherford and Sub..... 7
(a) Organization and Compliance with Law............. 7
(b) Capitalization................................... 7
(c) Authorization and Validity of Agreement. ....... 8
(d) No Approvals or Notices Required; No Conflict ... 8
(e) Commission Filings; Financial Statements......... 8
(f) Absence of Certain Charges and Events............ 9
(g) Tax Matters...................................... 9
(h) Voting Requirements.............................. 9
(i) Brokers.......................................... 9
(j) Information Supplied.............................. 10
2.2 Representations and Warranties of Christiana and C2........ 10
(a) Organization...................................... 10
(b) Capitalization.................................... 10
(c) Authorization and Validity of Agreement........... 11
(d) No Approvals or Notices Required; No Conflict with
Instruments to which Christiana is a Party........ 12
(e) Commission Filings; Financial Statements.......... 13
(f) Conduct of Business in the Ordinary Course; Absence
of Certain Changes and Events..................... 13
(g) Litigation........................................ 14
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(h) Employee Benefit Plans............................ 14
(i) Taxes............................................. 16
(j) Environmental Matters............................. 17
(k) Investment Company................................ 18
(l) Severance Payments................................ 18
(m) Voting Requirements............................... 19
(n) Brokers........................................... 19
(o) Assets and Liabilities at Closing................. 19
(p) Compliance with Laws.............................. 19
(q) Contracts......................................... 20
(r) Title to Property................................. 21
(s) Insurance Policies................................ 21
(t) Loans............................................. 21
(u) No Fraudulent Transfer............................ 21
(v) Information Supplied.............................. 22
ARTICLE III
COVENANTS OF CHRISTIANA.................................... 22
3.1 Conduct of Business by Christiana Pending the Merger....... 22
3.2 Cash Requirements.......................................... 25
3.3 Affiliates' Agreements..................................... 25
ARTICLE IV
COVENANTS OF WEATHERFORD PRIOR TO THE EFFECTIVE TIME....... 26
4.1 Reservation of Weatherford Stock........................... 26
4.2 Conduct of Weatherford Pending the Merger.................. 26
4.3 Stock Exchange Listing..................................... 26
ARTICLE V
ADDITIONAL AGREEMENTS...................................... 26
5.1 Joint Proxy Statement/Prospectus; Registration Statement... 26
5.2 Accountants Letter......................................... 26
5.3 Meetings of Stockholders................................... 27
5.4 Filings; Consents; Reasonable Efforts...................... 27
5.5 Notification of Certain Matters............................ 27
5.6 Expenses................................................... 28
5.7 Christiana's Employee Benefits............................. 28
5.8 Liquidation or Merger of Christiana........................ 28
ARTICLE VI
CONDITIONS................................................. 29
6.1 Conditions to Obligation of Each Party to Effect the
Merger..................................................... 29
6.2 Additional Conditions to Obligations of Weatherford........ 29
6.3 Additional Conditions to Obligations of Christiana......... 31
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ARTICLE VII
MISCELLANEOUS.............................................. 32
7.1 Termination................................................ 32
7.2 Effect of Termination...................................... 33
7.3 Waiver and Amendment....................................... 33
7.4 Nonsurvival of Representations and Warranties.............. 33
7.5 Public Statements.......................................... 33
7.6 Assignment................................................. 33
7.7 Notices.................................................... 34
7.8 Governing Law.............................................. 35
7.9 Arbitration................................................ 35
7.10 Severability............................................... 36
7.11 Counterparts............................................... 36
7.12 Headings................................................... 36
7.13 Confidentiality Agreement.................................. 36
7.14 Entire Agreement: Third Party Beneficiaries................ 36
7.15 Disclosure Letters......................................... 36
List of Exhibits
Exhibit A - Logistic Purchase Agreement
Exhibit B - Amended and Restated Certificate of Incorporation of Christiana
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AMENDED AND RESTATED
AGREEMENT AND PLAN OF MERGER
THIS AMENDED AND RESTATED AGREEMENT AND PLAN OF MERGER dated as October 14,
1998 (this "Agreement"), is made and entered into by and among Xxxxxxxxxxx
International, Inc. (formerly known as EVI, Inc.), a Delaware corporation
("Weatherford"), Christiana Acquisition, Inc., a Wisconsin corporation and
wholly owned subsidiary of Weatherford ("Sub"), Christiana Companies, Inc., a
Wisconsin corporation ("Christiana"), and C2, Inc., a Wisconsin corporation
("C2").
WHEREAS, Weatherford, Sub, Xxxxxxxxxx and C2 entered into an Agreement and
Plan of Merger, dated as of December 12, 1997, and an Amendment No. 1 to
Agreement and Plan of Merger and Logistic Purchase Agreement dated May 26, 1998;
WHEREAS, Weatherford, Sub, Christiana and C2 desire to amend and restate
the Agreement and Plan of Merger to provide for additional amendments set forth
herein;
WHEREAS, subject to and in accordance with the terms and conditions of this
Agreement, the respective Boards of Directors of Weatherford, Sub and
Christiana, and Weatherford as sole stockholder of Sub, have approved the merger
of Sub with and into Christiana (the "Merger"), whereby each issued and
outstanding share of common stock, $1.00 par value, of Christiana ("Christiana
Common Stock") not owned directly or indirectly by Christiana will be converted
into the right to receive (i) common stock, $1.00 par value, of Weatherford
("Weatherford Common Stock") plus (ii) the Cash Consideration Per Share (as
defined in Section 1.7(e));
WHEREAS, as a condition to the Merger, Christiana will sell to C2
two-thirds of the interest (the "Logistic Interest") in Total Logistic Control,
LLC, a Delaware limited liability company and wholly owned subsidiary of
Christiana ("Logistic"), in consideration for $10,666,667 in cash (the "Logistic
Sale") pursuant to a Purchase Agreement, as amended by Amendment No. 1 to
Agreement and Plan of Merger and Logistic Purchase Agreement dated May 26, 1998
and Amendment No. 2 to Logistic Purchase Agreement dated October 14, 1998,
between Christiana, C2, EVI, Inc. (now known as Xxxxxxxxxxx International, Inc.)
and Sub in substantially the form attached hereto as Exhibit A (the "Logistic
Purchase Agreement");
WHEREAS, immediately after the Effective Time, Christiana will only hold
the Christiana Assets, as such terms are hereinafter defined in Sections 1.3 and
2.2(o);
WHEREAS, for federal income tax purposes, it is intended that the Merger
shall qualify as a reorganization within the meaning of Section 368(a)(1)(A) by
reason of Section 368(a)(2)(E) of the Internal Revenue Code of 1986, as amended
(the "Code"); and
WHEREAS, the parties hereto desire to set forth certain representations,
warranties and covenants made by each to the other as an inducement to the
consummation of the Merger;
NOW, THEREFORE, in consideration of the premises and of the mutual
representations, warranties and covenants herein contained, the parties hereto
hereby agree as follows:
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ARTICLE I
THE MERGER
1.1 The Merger. Subject to and in accordance with the terms and conditions
of this Agreement and in accordance with the Wisconsin Business Corporation Law
("WBCL"), at the Effective Time (as defined in Section 1.3), Sub shall be merged
with and into Christiana. As a result of the Merger, the separate corporate
existence of Sub shall cease and Christiana shall continue as the surviving
corporation (sometimes referred to herein as the "Surviving Corporation"), and
all the properties, rights, privileges, powers and franchises of Sub and
Christiana shall vest in the Surviving Corporation, without any transfer or
assignment having occurred, and certain liabilities, debts and duties of Sub and
Christiana shall attach to the Surviving Corporation, all in accordance with the
WBCL and subject to the provisions of the Logistic Purchase Agreement.
1.2 Closing Date. The closing of the transactions contemplated by this
Agreement (the "Closing") shall take place at the offices of Fulbright &
Xxxxxxxx L.L.P, Houston, Texas, as soon as practicable after the satisfaction or
waiver of the conditions set forth in Article VI hereof or at such other time
and place and on such other date as Weatherford and Christiana shall agree;
provided that the closing conditions set forth in Article VI hereof shall have
been satisfied or waived at or prior to such time. The date on which the Closing
occurs is herein referred to as the "Closing Date".
1.3 Consummation of the Merger. As soon as practicable on the Closing Date,
the parties hereto will cause the Merger to be consummated by filing with the
Department of Financial Instutitions of the State of Wisconsin the Articles of
Merger in such form as required by, and executed in accordance with, the
relevant provisions of the WBCL. The "Effective Time" of the Merger, as that
term is used in this Agreement, shall mean such time as the Articles of Merger
are duly filed with the Department of Financial Institutions of the State of
Wisconsin or at such later time (not to exceed seven days from the date the
Articles of Merger are filed) as is specified in the Articles of Merger pursuant
to the mutual agreement of Weatherford and Xxxxxxxxxx.
1.4 Effects of the Merger. The Merger shall have the effects set forth in
the applicable provisions of the WBCL. If at any time after the Effective Time
of the Merger, the Surviving Corporation shall consider or be advised that any
further assignments or assurances in law or otherwise are necessary or desirable
to vest, perfect or confirm, of record or otherwise, in the Surviving
Corporation, all rights, title and interests in all real estate and other
property and all privileges, powers and franchises of Christiana and Sub, the
Surviving Corporation and its proper officers and directors, in the name and on
behalf of Christiana and Sub, shall execute and deliver all such proper deeds,
assignments and assurances in law and do all things necessary and proper to
vest, perfect or confirm title to such property or rights in the Surviving
Corporation and otherwise to carry out the purpose of this Agreement, and the
proper officers and directors of the Surviving Corporation are fully authorized
in the name of Christiana or otherwise to take any and all such action.
1.5 Articles of Incorporation; Bylaws. The Articles of Incorporation of
Christiana, as amended and restated by the amendment set forth in Exhibit B
attached hereto, shall be the Articles of Incorporation of the Surviving
Corporation and thereafter shall continue to be its Articles of Incorporation
until amended as provided therein or under the WBCL. The bylaws of Sub, as in
effect immediately prior to the Effective Time, shall be the bylaws of the
Surviving Corporation and thereafter shall continue to be its bylaws until
amended as provided therein or under the WBCL.
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1.6 Directors and Officers. The directors of Sub immediately prior to the
Effective Time shall be the directors of the Surviving Corporation at and after
the Effective Time, each to hold office in accordance with the Articles of
Incorporation and bylaws of the Surviving Corporation, and the officers of Sub
immediately prior to the Effective Time shall be the officers of the Surviving
Corporation at and after the Effective Time, in each case until the earlier of
their resignation or removal or their respective successors are duly elected or
appointed and qualified.
1.7 Conversion of Securities. Subject to the terms and conditions of this
Agreement, at the Effective Time, by virtue of the Merger and without any
further action on the part of Xxxxxxxxxxx, Xxxxxxxxxx, Sub or their
stockholders:
(a) Subject to adjustments pursuant to Sections 1.7(d) and
1.7(e) hereof, each share of Christiana Common Stock issued and
outstanding immediately prior to the Effective Time (the "Christiana
Shares") shall be converted into the right to receive (i) a fraction of
a share of Weatherford Common Stock equal to the number of shares of
Weatherford Common Stock held by Christiana at the Effective Time
divided by the number of shares of Christiana Common Stock outstanding
immediately prior to the Effective Time (the "Stock Exchange Ratio")
plus (ii) the Cash Consideration Per Share as defined in Section
1.7(e); provided, however, that no fractional shares of Weatherford
Common Stock shall be issued and, in lieu thereof, all fractional
shares of Weatherford Common Stock that would otherwise be issuable in
the Merger shall be rounded to the nearest whole share of Weatherford
Common Stock. Except as set forth in the preceding sentence with
respect to the Cash Consideration Per Share, no other consideration
will be paid to the Christiana stockholders.
(b) Each Christiana Share owned directly or indirectly by
Christiana as treasury stock and each Christiana Share owned by Sub,
Weatherford or any direct or indirect wholly-owned subsidiary of
Weatherford or of Christiana immediately prior to the Effective Time
shall be canceled and extinguished without any conversion thereof and
no payment or other consideration shall be made or paid with respect
thereto.
(c) Each share of common stock, $1.00 par value, of Sub issued
and outstanding immediately prior to the Effective Time shall be
converted into one fully paid and nonassessable share of common stock,
$1.00 par value, of the Surviving Corporation.
(d) [Intentionally Omitted]
(e) The "Cash Consideration Per Share", shall equal the
quotient of the Christiana Net Cash divided by 5,149,330. The
"Christiana Net Cash" shall mean and be equal to (i) all cash on hand
of Christiana at the Closing minus (ii) an amount of cash necessary to
pay the Christiana Liabilities in full without giving effect to the use
or application of any tax deductions relating to the exercise of
options or any tax benefits that may be realized as a result of amended
Tax Returns. The Stock Exchange Ratio and the "Cash Consideration Per
Share" is based on 5,149,330 shares of Christiana Common Stock being
issued and outstanding
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immediately prior to the Effective Time. In the event the number of
shares of Christiana Common Stock outstanding immediately prior to the
Effective Time is greater or less than 5,149,330, the Stock Exchange
Ratio and the Cash Consideration Per Share shall be adjusted to equal
the quotient of the Christiana Net Cash divided by the number of
shares of Christiana Common Stock issued and outstanding immediately
prior to the Effective Time. The terms "TLC Dividend," "Wiscold Note"
and "Christiana Liabilities" shall have the meanings set forth in
Sections 3.1(s), 3.1(t) and 2.2(o), respectively.
1.8 Exchange of Certificates.
(a) Exchange Agent. Prior to the Effective Time of the Merger,
Weatherford shall select a bank or trust company to act as exchange
agent (the "Exchange Agent") for the issue of shares of Weatherford
Common Stock upon surrender of certificates representing Christiana
Shares.
(b) Payment of Merger Consideration. Weatherford shall take
all steps necessary to enable and cause there to be provided to the
Exchange Agent on a timely basis, as and when needed after the
Effective Time of the Merger, certificates for the shares of
Weatherford Common Stock to be issued upon the conversion of the
Christiana Shares pursuant to Section 1.7 and the cash necessary to be
issued for the Cash Consideration Per Share.
(c) Retention of Cash Pending Post Closing Audit. Within 30
days following the Effective Date, Weatherford shall (i) complete a
post closing audit by Weatherford of the Christiana Net Cash and (ii)
pay to the Exchange Agent on behalf of the holders of the Christiana
Shares the Cash Consideration Per Share in respect of such Christiana
Shares subject to the prior presentation of the certificates that
immediately prior to the Effective Time represented the outstanding
Christiana Shares (the "Certificates").
(d) [Intentionally Omitted]
(e) Exchange Procedure. As soon as reasonably practical after
the Effective Time of the Merger, the Exchange Agent shall mail to each
holder of record of a Certificate or Certificates, other than
Weatherford, Sub and Christiana and any directly or indirectly wholly
owned subsidiary of Weatherford, Sub or Christiana, (i) a letter of
transmittal (which shall specify that delivery shall be effected, and
risk of loss and title to the Certificates shall pass, only upon
delivery of the Certificates to the Exchange Agent and shall be in a
form and have such other provisions as Weatherford and Sub may
reasonably specify) and (ii) instructions for use in effecting the
surrender of the Certificates in exchange for the certificates
representing the shares of Weatherford Common Stock and the Cash
Consideration Per Share. Upon surrender of a Certificate for
cancellation to the Exchange Agent or to such other agent or agents as
may be appointed by the Surviving Corporation, together with such
letter of transmittal, duly executed, and such other documents as may
reasonably be required by the Exchange Agent, the holder of such
Certificate shall be entitled to receive in exchange therefor a
certificate or certificates representing the number of whole shares of
Weatherford Common Stock into which the Christiana Shares theretofore
represented by such Certificate shall have been converted pursuant to
Section 1.7 and the Cash Consideration Per Share as provided in Section
1.8(c) and the Certificate so surrendered shall forthwith be canceled.
If the shares of Weatherford Common Stock are to be issued to an
individual, corporation, limited liability company, partnership,
governmental authority or any other entity (a
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"Person"), other than the person in whose name the Certificate so
surrendered is registered, it shall be a condition of exchange that
such Certificate shall be properly endorsed or otherwise in proper form
for transfer and that the Person requesting such exchange shall pay any
transfer or other taxes required by reason of the exchange to a Person
other than the registered holder of such Certificate or establish to
the satisfaction of the Surviving Corporation that such tax has been
paid or is not applicable. Until surrendered as contemplated by this
Section 1.8, each Certificate shall be deemed at any time after the
Effective Time of the Merger to represent only the right to receive
upon such surrender the number of shares of Weatherford Common Stock,
and the Cash Consideration Per Share payable in respect of the
Christiana Shares pursuant to Section 1.7. The Exchange Agent shall not
be entitled to vote or exercise any rights of ownership with respect to
the shares of Weatherford Common Stock held by it from time to time
hereunder, except that it shall receive and hold all dividends or other
distributions paid or distributed with respect thereto for the account
of Persons entitled thereto. Any unexchanged shares of Weatherford
Common Stock issuable pursuant to the Merger in respect of the
Christiana Shares shall be issued in the name of the Exchange Agent
pending the receipt by the Exchange Agent of Certificates.
(f) Distributions with Respect to Unexchanged Christiana
Shares. No dividends or other distributions declared or made after the
Effective Time of the Merger with respect to the shares of Weatherford
Common Stock with a record date after the Effective Time of the Merger
shall be paid to the holder of any unsurrendered Certificate with
respect to the shares of Weatherford Common Stock represented thereby
and the Cash Consideration Per Share shall not be paid until the holder
of record of such Certificate shall surrender such Certificate. Subject
to the effect of applicable laws, following surrender of any such
Certificate, there shall be paid to the record holder of the
Certificates representing the shares of Weatherford Common Stock issued
in exchange therefor, without interest, (i) the amount of dividends or
other distributions with a record date after the Effective Time of the
Merger theretofore paid with respect to such whole shares of
Weatherford Common Stock, as the case may be, (ii) at the appropriate
payment date, the amount of dividends or other distributions with a
record date after the Effective Time of the Merger but prior to
surrender and a payment date subsequent to surrender payable with
respect to such whole shares of Weatherford Common Stock and (iii) the
Cash Consideration Per Share at the appropriate payment date as
provided in this Section 1.8.
(g) No Further Ownership Rights in Christiana Shares. All
shares of Weatherford Common Stock issued upon the surrender of
Certificates in accordance with the terms of this Article I, together
with any dividends payable thereon to the extent contemplated by this
Section 1.8 and the rights to receive the Cash Consideration Per Share
as provided herein, shall be deemed to have been exchanged and paid in
full satisfaction of all rights pertaining to the Christiana Shares
theretofore represented by such Certificates and there shall be no
further registration of transfers on the stock transfer books of the
Surviving Corporation of the Christiana Shares that were outstanding
immediately prior to the Effective Time of the Merger. If, after the
Effective Time of the Merger, Certificates are presented to the
Surviving Corporation for any reason, they shall be canceled and
exchanged as provided in this Article I.
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(h) Escheat. None of Weatherford, Sub, Christiana, the
Surviving Corporation or their transfer agents shall be liable to a
holder of the Christiana Shares for any amount properly paid to a
public official pursuant to applicable property, escheat or similar
laws.
1.9 Taking of Necessary Action; Further Action. The parties hereto shall
take all such reasonable and lawful action as may be necessary or appropriate in
order to effectuate the Merger and the Logistic Sale as promptly as possible.
If, at any time after the Effective Time, any such further action is necessary
or desirable to carry out the purposes of this Agreement or the Logistic Sale,
and to vest the Surviving Corporation with full right, title and possession to
all assets, property, rights, privileges, powers and franchises of Christiana or
Sub as of the Effective Time, such corporations shall direct their respective
officers and directors to take all such lawful and necessary action.
ARTICLE II
REPRESENTATIONS AND WARRANTIES
2.1 Representations and Warranties of Weatherford and Sub. Weatherford and
Sub hereby jointly and severally represent and warrant to Christiana that:
(a) Organization and Compliance with Law. Weatherford and
Sub are corporations duly incorporated, validly existing and in good
standing under the laws of the states of Delaware and Wisconsin,
respectively. Each of Weatherford and Sub has all requisite corporate
power and corporate authority to own, lease and operate all of its
properties and assets and to carry on its business as now being
conducted, except where the failure to be so organized, existing or in
good standing would not have a material adverse effect on the
financial condition of Weatherford and its subsidiaries (the
"Weatherford Subsidiaries"), taken as a whole (a "Xxxxxxxxxxx XXX").
Each of Weatherford and Sub is duly qualified to do business, and is
in good standing, in each jurisdiction in which the property owned,
leased or operated by it or the nature of the business conducted by it
makes such qualification necessary, except in such jurisdictions where
the failure to be duly qualified would not have a Xxxxxxxxxxx XXX.
Each of Weatherford and Sub is in compliance with all applicable laws,
judgments, orders, rules and regulations, except where such failure
would not have a Xxxxxxxxxxx XXX. Xxxxxxxxxxx has heretofore delivered
to Christiana true and complete copies of Xxxxxxxxxxx'x Amended and
Restated Certificate of Incorporation, as amended (the "Weatherford
Certificate"), and Sub's Articles of Incorporation and their
respective bylaws as in existence on the date hereof.
(b) Capitalization.
(i) The authorized capital stock of Weatherford
consists of 250,000,000 shares of Weatherford Common Stock,
$1.00 par value, and 3,000,000 shares of preferred stock,
$1.00 par value ("Weatherford Preferred Stock"). As of July
10, 1998, there were 97,511,967 shares of Xxxxxxxxxxx Common
Stock issued and outstanding. As of July 10, 1998, (i)
5,031,250 shares of Xxxxxxxxxxx Common Stock were reserved for
issuance pursuant to the conversion provisions of
Xxxxxxxxxxx'x 5% Convertible Subordinated Preferred Equivalent
Debentures due 2027, (ii) 3,900,000 shares of Xxxxxxxxxxx
Common Stock were
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reserved for issuance pursuant to pending or proposed
acquisitions, (iii) 1,577,410 shares of Xxxxxxxxxxx Common
Stock were remaining to be exchanged for shares of stock in
connection with various completed acquisitions, and (iv)
3,269,376 shares of Xxxxxxxxxxx Common Stock were reserved for
issuance pursuant to Xxxxxxxxxxx'x employee and director
benefit plans and arrangements, of which 1,897,704 shares of
Xxxxxxxxxxx Common Stock were reserved for issuance upon
exercise of outstanding options. At July 10, 1998, there were
no shares of Xxxxxxxxxxx Preferred Stock issued or
outstanding. No holder of Xxxxxxxxxxx Common Stock is entitled
to preemptive rights under Delaware law or Xxxxxxxxxxx'x
Certificate of Incorporation.
(ii) As of the date hereof, the authorized capital
stock of Sub consists of 1,000 shares of common stock, $1.00
par value, all of which are validly issued, fully paid and
nonassessable and are owned by Xxxxxxxxxxx.
(iii) Each share of Xxxxxxxxxxx Common Stock to be
issued hereunder as a result of the Merger will be fully paid
and non-assessable upon issuance.
(c) Authorization and Validity of Agreement. The execution and
delivery by Xxxxxxxxxxx and Sub of this Agreement and the consummation
by each of them of the transactions contemplated hereby have been duly
authorized by all necessary corporate action (subject only, with
respect to the Merger, to approval of this Agreement by each of their
stockholders as provided for in Section 5.3). On or prior to the date
hereof, the Board of Directors of Xxxxxxxxxxx or duly authorized
committee thereof has determined to recommend approval of the Merger to
the stockholders of Weatherford, and such determination is in effect on
the date hereof. This Agreement has been duly executed and delivered by
Xxxxxxxxxxx and Sub and is the valid and binding obligation of
Xxxxxxxxxxx and Sub, enforceable against Xxxxxxxxxxx and Sub in
accordance with its terms.
(d) No Approvals or Notices Required; No Conflict . Neither
the execution and delivery of this Agreement nor the performance by
Xxxxxxxxxxx or Sub of its obligations hereunder, nor the consummation
of the transactions contemplated hereby by Weatherford and Sub, will
(i) conflict with the Weatherford Certificate or the bylaws of
Xxxxxxxxxxx or Sub; (ii) assuming satisfaction of the requirements set
forth in clause (iii) below, violate any provision of law applicable to
Xxxxxxxxxxx or any of the Weatherford Subsidiaries; (iii) except for
(A) requirements of Federal or state securities laws, (B) requirements
arising out of the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 0000
(xxx "XXX Xxx"), (X) requirements of notice filings in such foreign
jurisdictions as may be applicable, and (D) the filing of Articles
Merger by Sub in accordance with the WBCL, require any consent or
approval of, or filing with or notice to, any public body or authority,
domestic or foreign, under any provision of law applicable to
Xxxxxxxxxxx or any of the Weatherford Subsidiaries; or (iv) require any
consent, approval or notice under, or violate, breach, be in conflict
with or constitute a default (or an event that, with notice or lapse of
time or both, would constitute a default) under, or permit the
termination of any provision of, or result in the creation or
imposition of any lien, mortgage, pledge, security interest,
restriction on transfer, option, charge, right of any third Person or
any other encumbrance of any nature (a "Lien") upon any properties,
assets or business of Xxxxxxxxxxx or any of the Weatherford
Subsidiaries under, any note, bond, indenture, mortgage, deed of trust,
lease, franchise, permit, authorization, license, contract, instrument
or other agreement or commitment or any order, judgment or decree to
which Xxxxxxxxxxx or any of the Weatherford Subsidiaries is a party or
by which Xxxxxxxxxxx or any of the Weatherford Subsidiaries or any of
its or their
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assets or properties is bound or encumbered, except (A) those that have
already been given, obtained or filed and (B) those that, in the
aggregate, would not have a Xxxxxxxxxxx XXX.
(e) Commission Filings; Financial Statements. Xxxxxxxxxxx has
filed all reports and documents required to filed with the Securities
and Exchange Commission (the "Commission") since December 31, 1995. All
reports, registration statements and other filings (including all
notes, exhibits and schedules thereto and documents incorporated by
reference therein) filed by Xxxxxxxxxxx with the Commission since
December 31, 1995, through the date of this Agreement, together with
any amendments thereto, are sometimes collectively referred to as the
"Xxxxxxxxxxx Commission Filings". Xxxxxxxxxxx has heretofore delivered
to, or made accessible to, Christiana copies of the Xxxxxxxxxxx
Commission Filings. As of the respective dates of their filing with the
Commission, the Xxxxxxxxxxx Commission Filings complied in all material
respects with the applicable requirements of the Securities Act of 1934
(the "Securities Act"), the Securities Exchange Act of 1934 (the
"Exchange Act") and the rules and regulations of the Commission
thereunder, and did not contain any untrue statement of a material fact
or omit to state a material fact required to be stated therein or
necessary to make the statements made therein, in light of the
circumstances under which they were made, not misleading.
(f) Absence of Certain Charges and Events. Since December 31,
1997, except as contemplated by this Agreement or as disclosed in the
Xxxxxxxxxxx Commission Filings filed with the Commission prior to the
date hereof, there has been no Xxxxxxxxxxx XXX.
(g) Tax Matters.
(i) Except as set forth in Section 2.1(g) of the
disclosure letter delivered by Xxxxxxxxxxx to Xxxxxxxxxx on
the date hereof (the "Xxxxxxxxxxx Disclosure Letter"), all
returns and reports, including, without limitation,
information and withholding returns and reports ("Tax
Returns"), of or relating to any foreign, federal, state or
local tax, assessment or other governmental charge ("Taxes" or
a "Tax") that are required to be filed on or before the
Closing Date by or with respect to Xxxxxxxxxxx or any of the
Weatherford Subsidiaries, or any other corporation that is or
was a member of an affiliated group (within the meaning of
Section 1504(a) of the Code) of corporations of which
Xxxxxxxxxxx was a member for any period ending on or prior to
the Closing Date, have been or will be duly and timely filed,
and all Taxes, including interest and penalties, due and
payable pursuant to such Tax Returns have been paid or, except
as set forth in Section 2.1(g) of the Xxxxxxxxxxx Disclosure
Letter, adequately provided for in reserves established by
Xxxxxxxxxxx, except where the failure to file, pay or provide
for would not have a Xxxxxxxxxxx XXX.
(ii) Xxxxxxxxxxx has no present plan or intention
after the Merger to (A) liquidate the Surviving Corporation,
(B) merge the Surviving Corporation with or into another
corporation, (C) sell or otherwise dispose of the stock of the
Surviving Corporation, (D) cause or permit the Surviving
Corporation to sell or otherwise dispose of any of the assets
of Christiana or the assets of Sub vested in the Surviving
Corporation except for dispositions made in the ordinary
course of business or transfers of assets to a corporation
controlled by the Surviving Corporation within the meaning of
Section 368(a)(2)(C) of the Code, or (E) reacquire any of the
stock issued to the Christiana stockholders pursuant to the
Merger.
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(iii) Xxxxxxxxxxx is not an investment company as
defined in ss.368(a)(2)(F)(iii) and (iv) of the Code or as
defined in the Investment Company Act of 1940 and the rules
and regulations promulgated thereunder.
(h) Voting Requirements. The affirmative vote of the holders
of a majority of the shares of Xxxxxxxxxxx Common Stock present at the
special stockholders' meeting and entitled to vote is the only vote of
the holders and any class or series of the capital stock of Xxxxxxxxxxx
necessary to approve this Agreement and the Merger.
(i) Brokers. Except for fees and expenses payable by
Xxxxxxxxxxx to Xxxxxx Xxxxxxx & Co. Incorporated, no broker, investment
banker, or other Person acting on behalf of Xxxxxxxxxxx is or will be
entitled to any broker's, finder's or other similar fee or commission
in connection with the transactions contemplated by this Agreement.
(j) Information Supplied. None of the information supplied or
to be supplied by Xxxxxxxxxxx for inclusion or incorporation by
reference in (i) the Registration Statement (as defined in Section 5.1)
will, at the time the Registration Statement is filed with the
Commission, and at any time it is amended or supplemented or at the
time it becomes effective under the Securities Act, contain any untrue
statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements
therein not misleading, and (ii) the Proxy Statement will, at the date
the Proxy Statement is first mailed to Xxxxxxxxxxx'x stockholders and
at the time of the Xxxxxxxxxxx Stockholders Meeting, contain any untrue
statement of a material fact or omit to state any material fact
required to be stated therein or necessary in order to make the
statements therein, in light of the circumstances under which they are
made, not misleading. The Proxy Statement will comply as to form in all
material respects with the requirements of the Exchange Act and the
rules and regulations thereunder. For purposes of this Agreement, the
parties agree that the statements made and information in the
Registration Statement and the Proxy Statement relating to the Federal
income tax consequences of the transactions contemplated hereby shall
be deemed to be supplied by Christiana and not by Xxxxxxxxxxx or Sub.
2.2 Representations and Warranties of Christiana and C2. Each of Christiana
and C2 hereby, jointly and severally, represents and warrants to Xxxxxxxxxxx
that:
(a) Organization. Each of Christiana and C2 is a corporation
duly organized, validly existing and in good standing under the laws of
the state of Wisconsin. Logistic is a limited liability company duly
organized, validly existing and in good standing under the laws of the
state of Delaware. Each of Christiana, C2 and Logistic has all
requisite corporate (or equivalent) power and corporate (or equivalent)
authority and all necessary governmental authorizations to own, lease
and operate all of its properties and assets and to carry on its
business as now being conducted, except where the failure to be so
organized, existing or in good standing or to have such governmental
authority would not (i) have a material adverse effect on the financial
condition of Christiana or Logistic after giving effect to the Logistic
Sale or (ii) prevent or adversely affect the ability of Christiana and
C2 to perform and comply with their respective obligations under this
Agreement, the Logistic Purchase Agreement or any other agreement to be
executed and delivered in connection with the transactions contemplated
hereby or thereby (a "Xxxxxxxxxx XXX"). Except as set forth in Section
2.2(a) of the disclosure letter delivered by Christiana to Xxxxxxxxxxx
on the date hereof (the "Christiana Disclosure Letter"), each of
Christiana, Logistic and C2 is duly
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qualified as a foreign corporation or limited liability company to do
business, and is in good standing, in each jurisdiction in which the
property owned, leased or operated by it or the nature of the business
conducted by it makes such qualification necessary, except in such
jurisdictions where the failure to be duly qualified does not and would
not have a Xxxxxxxxxx XXX. Each of Christiana, Logistic and C2 is in
compliance with all applicable laws, judgments, orders, rules and
regulations, domestic and foreign, except where failure to be in such
compliance would not have a Xxxxxxxxxx XXX. Xxxxxxxxxx has heretofore
delivered to Xxxxxxxxxxx true and complete copies of (i) Christiana's
Articles of Incorporation (the "Christiana Articles") and bylaws, (ii)
Logistic's Certificate of Organization and operating agreement and
(iii) C2's Articles of Incorporation and operating agreement, in each
case as in existence on the date hereof.
(b) Capitalization.
(i)The authorized capital stock of Christiana consists
of 12,000,000 shares of Christiana Common Stock, $1.00 par
value, and 1,000,000 shares of preferred stock, $10.00 par
value ("Christiana Preferred Stock"). As of July 10, 1998,
there were 5,149,330 shares of Christiana Common Stock issued
and outstanding and no shares of Christiana Common Stock were
held as treasury shares. There are no outstanding shares of
Christiana Preferred Stock. No shares of Christiana Common
Stock have been reserved for issuance pursuant to the stock
option plan described in Section 2.2(b)(iii). All issued and
outstanding shares of Christiana Common Stock are validly
issued, fully paid and nonassessable (except as set forth in
Wis Stats ss. 180.0622) and no holder thereof is entitled to
preemptive rights. Christiana is not a party to, and is not
aware of, any voting agreement, voting trust or similar
agreement or arrangement relating to any class or series of
its capital stock, or any agreement or arrangement providing
for registration rights with respect to any capital stock or
other securities of Christiana.
(ii) Christiana owns 100% of the membership interests
in Logistic. All issued and outstanding membership interests
of Logistic are validly issued, fully paid and nonassessable
and no holder thereof is entitled to preemptive rights.
Logistic is not a party to, any voting agreement, voting trust
or similar agreement or arrangement relating to its membership
interests, or any agreement or arrangement providing for
registration rights with respect to any membership interests
or other interests of Logistic.
(iii) As of the date hereof, there are outstanding
options (the "Christiana Options") to purchase an aggregate of
267,083 shares of Christiana Common Stock under the 1995 Stock
Option Plan (the "Christiana Option Plan"). All Christiana
Options shall be terminated or exercised prior to the
Effective Time. As of the Effective Time, there will be no
options outstanding under the Christiana Option Plan. There
are not now (other than as set forth in this Section 2.2(b)),
and at the Effective Time there will not be, any (A) shares of
capital stock or other equity securities of Christiana
issuable pursuant to the exercise of Christiana Options or (B)
outstanding options, warrants, scrip, rights to subscribe for,
calls or commitments of any character whatsoever relating to,
or securities or rights convertible into or exchangeable for,
shares of any class of capital stock of Christiana, or
contracts, understandings or arrangements to which Christiana
is a party, or by which it is or
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may be bound, to issue additional shares of its capital stock
or options, warrants, scrip or rights to subscribe for, or
securities or rights convertible into or exchangeable for, any
additional shares of its capital stock.
(iv) Section 2.2(b)(iv) of the Christiana Disclosure
Letter sets forth a list of all corporations, partnerships,
limited liability companies and other entities of which
Christiana owns directly or indirectly, an equity interest
(such entities, excluding Xxxxxxxxxxx and its subsidiaries,
referred to herein as the "Christiana Subsidiaries").
(c) Authorization and Validity of Agreement. Each of
Christiana and C2 has all requisite corporate power and authority to
enter into this Agreement, the Logistic Purchase Agreement and the
other agreements and instruments contemplated to be executed and
delivered in connection with the Merger and the Logistic Sale (the
Logistic Purchase Agreement and such other agreements and instruments
contemplated to be executed and delivered in connection with the Merger
and the Logistic Sale being referred to as the "Other Agreements") and
to perform its obligations hereunder and thereunder. The execution and
delivery by Christiana and C2 of this Agreement and the Other
Agreements to which it is a party and the consummation by it of the
transactions contemplated hereby and thereby have been duly authorized
by all necessary corporate action (subject only, with respect to the
Merger and the Logistic Sale, to approval of this Agreement and the
Logistic Sale by the Christiana stockholders as provided for in Section
5.3). On or prior to the date hereof the Board of Directors of
Christiana has determined to recommend approval of the Merger and the
Logistic Sale to the stockholders of Christiana, and such determination
is in effect as of the date hereof. This Agreement has been duly
executed and delivered by Christiana and C2 and is the valid and
binding obligation of Christiana and C2 enforceable against it in
accordance with its terms. The Other Agreements, when executed and
delivered by Christiana and C2, as applicable, will constitute valid
and binding obligations of Christiana and C2, enforceable against them
in accordance with their respective terms.
(d) No Approvals or Notices Required; No Conflict with
Instruments to which Christiana is a Party. The execution and delivery
of this Agreement and the Other Agreements do not, and the consummation
of the transactions contemplated hereby and thereby and compliance with
the provisions hereof and thereof will not, conflict with, or result in
any violation of, or default (with or without notice or lapse of time,
or both) under, or give rise to a right of termination, cancellation or
acceleration of or "put" right with respect to any obligation or to
loss of a material benefit under, or result in the creation of any Lien
upon any of the properties or assets of Christiana, Logistic, C2 or any
of their subsidiaries under, any provision of (i) the Christiana
Articles or bylaws of Christiana, the Certificate of Organization or
operating agreement of Logistic or the Articles of Incorporation or
bylaws of C2, or any provision of the comparable organizational
documents of its subsidiaries, (ii) except as set forth in Section
2.2(d) of the Christiana Disclosure Letter, any loan or credit
agreement, note, bond, mortgage, indenture, lease, guaranty or other
financial assurance agreement or other agreement, instrument, permit,
concession, franchise or license applicable to Christiana or its
properties or assets, (iii) except as set forth in Section 2.2(d) of
the Christiana Disclosure Letter, any loan or credit agreement, note,
bond, mortgage, indenture, lease, guaranty or other financial assurance
agreement or other agreement, instrument, permit, concession, franchise
or license applicable to Logistic or any other Christiana Subsidiary,
or their respective properties or assets and (iv) subject to
governmental filing and other matters referred to in the following
sentence, any judgment, order, decree,
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statute, law, ordinance, rule or regulation or arbitration award
applicable to Christiana, Logistic or C2 or any of their subsidiaries
or their respective properties or assets, other than, in the case of
clauses (ii) and (iii), any such conflicts, violations, defaults,
rights or Liens that individually or in the aggregate would not have a
Xxxxxxxxxx XXX. No consent, approval, order or authorization of, or
registration, declaration or filing with, any court, administrative
agency or commission or other governmental authority or agency,
domestic or foreign, including local authorities (a "Governmental
Entity"), is required by or with respect to Christiana, Logistic or C2
or any of their subsidiaries in connection with the execution and
delivery of this Agreement by Christiana and C2 or the consummation by
Christiana of the transactions contemplated hereby, except for (i) the
filing of a pre-merger notification and report form by Christiana under
the HSR Act, (ii) the filing with the Commission of (A) a proxy or
information statement relating to Stockholder Approval (such proxy or
information statement as amended or supplemented from time to time, the
"Proxy Statement"), and (B) such reports under Section 13(a) of the
Exchange Act as may be required in connection with this Agreement and
the transactions contemplated hereby, (iii) the filing of the
Certificate of Merger with the Wisconsin Secretary of State with
respect to the Merger as provided in the WBCL and appropriate documents
with the relevant authorities of other states in which Christiana is
qualified to do business and (iv) such other consents, approvals,
orders, authorizations, registrations, declarations, filings and
notices as are set forth in Section 2.2(d) of the Christiana Disclosure
Letter.
(e) Commission Filings; Financial Statements. Christiana has
filed all reports, registration statements and other filings, together
with any amendments required to be made with respect thereto, that it
has been required to file with the Commission. All reports,
registration statements and other filings (including all notes,
exhibits and schedules thereto and documents incorporated by reference
therein) filed by Christiana with the Commission since December 31,
1995, through the date of this Agreement, together with any amendments
thereto, are sometimes collectively referred to as the "Christiana
Commission Filings." Christiana has heretofore delivered to Xxxxxxxxxxx
copies of the Christiana Commission Filings. As of the respective dates
of their filing with the Commission, the Christiana Commission Filings
complied in all material respects with the Securities Act, the Exchange
Act and the rules and regulations of the Commission thereunder, and did
not contain any untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements made therein, in light of the circumstances under which they
were made, not misleading. To the best knowledge of Christiana, all
material contracts of Christiana and its subsidiaries have been
included in the Christiana Commission Filings since the initial
registration of its stock under the Exchange Act, except for those
contracts not required to be filed pursuant to the rules and
regulations of the Commission.
Each of the consolidated financial statements (including any
related notes or schedules) included in the Christiana Commission
Filings was prepared in accordance with generally accepted accounting
principles applied on a consistent basis (except as may be noted
therein or in the notes or schedules thereto) and complied with the
rules and regulations of the Commission. Such consolidated financial
statements fairly present the consolidated financial position of
Christiana as of the dates thereof and the results of operations, cash
flows and changes in stockholders' equity for the periods then ended
(subject, in the case of the unaudited interim financial statements, to
normal year-end audit adjustments on a basis comparable with past
periods). As of the date hereof, Christiana has
-12-
no liabilities, absolute or contingent, that may reasonably be expected
to have a Xxxxxxxxxx XXX, that are not reflected in the Christiana
Commission Filings, except (i) those incurred in the ordinary course of
business consistent with past operations and not relating to the
borrowing of money and (ii) those set forth in Section 2.2(e) of the
Christiana Disclosure Letter.
(f) Conduct of Business in the Ordinary Course; Absence of
Certain Changes and Events. Since December 31, 1995, except as
contemplated by this Agreement, the Logistic Purchase Agreement or as
disclosed in the Christiana Commission Filings or set forth in Section
2.2(f) of the Christiana Disclosure Letter, Christiana and its
subsidiaries have conducted their respective businesses only in the
ordinary and usual course in accordance with past practice, and there
has not been: (i) a Xxxxxxxxxx XXX or any other material adverse change
in the financial condition, results of operations, assets or business
of Christiana, taken as a whole; (ii) to the knowledge of Christiana,
any other condition, event or development that reasonably may be
expected to result in any such material adverse change or a Xxxxxxxxxx
XXX; (iii) any change by Christiana or Logistic in its accounting
methods, principles or practices; (iv) any revaluation by Christiana or
Logistic of any of its assets, including, without limitation, writing
down the value of inventory or writing off notes or accounts receivable
other than in the ordinary course of business and consistent with past
practice; (v) any entry by Christiana or Logistic into any commitment
or transaction that would be material to Christiana or Logistic; (vi)
any declaration, setting aside or payment of any dividends or
distributions in respect of the Christiana Common Stock or any
redemption, purchase or other acquisition of any of its securities;
(vii) any damage, destruction or loss (whether or not covered by
insurance) adversely affecting the properties or business of Christiana
or Logistic; (viii) any increase in indebtedness of borrowed money
other than borrowing under existing credit facilities as disclosed in
Section 2.2(f) of the Christiana Disclosure Letter; (ix) any granting
of a security interest or Lien on any property or assets of Christiana
or Logistic, other than (A) Liens for taxes not due and payable and (B)
inchoate mechanics', warehousemen's and other statutory Liens incurred
in the ordinary course of business (collectively, "Permitted Liens");
or (x) any increase in or establishment of any bonus, insurance,
severance, deferred compensation, pension, retirement, profit sharing,
stock option (including, without limitation, the granting of stock
options, stock appreciation rights, performance awards or restricted
stock awards), stock purchase or other employee benefit plan or any
other increase in the compensation payable or to become payable to any
directors, officers or key employees of Christiana or Logistic or which
Christiana or Logistic would be responsible.
(g) Litigation. Except as disclosed in the Christiana
Commission Filings or as set forth in Section 2.2(g) of the Christiana
Disclosure Letter, there are no claims, actions, suits, investigations,
inquiries or proceedings, ("Demands"), pending or, to the knowledge of
Christiana, threatened against or affecting (i) Christiana or Logistic
or any of their respective properties at law or in equity, or any of
their employee benefit plans or fiduciaries of such plans, or (ii) C2
or any Christiana or C2 subsidiaries or any of their respective
properties at law or in equity, or any of their respective employee
benefit plans or fiduciaries of such plans, before or by any federal,
state, municipal or other governmental agency or authority, or before
any arbitration board or panel (each a "Governmental Entity"), wherever
located (i) that exist today or (ii) that would otherwise, if adversely
determined, have a Xxxxxxxxxx XXX. None of Christiana, Logistic or C2
is subject to any judicial, governmental or administrative order, writ,
judgment, injunction or decree.
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(h) Employee Benefit Plans.
(i) Section 2.2(h) of the Christiana Disclosure
Letter provides a description of each of the following which
is sponsored, maintained or contributed to by Christiana or
any corporation, trade, business or entity under common
control with Christiana within the meaning of Section
414(b),(c),(m) or (o) of the Code or Section 4001 of ERISA (a
"Christiana ERISA Affiliate") for the benefit of its
employees, or has been so sponsored, maintained or contributed
to within three years prior to the Closing Date.
(A) each "employee benefit plan," as such
term is defined in Section 3(3) of the Employee
Retirement Income Security Act of 1974, as amended
("ERISA"), ("Plan"); and
(B) each stock option plan, collective
bargaining agreement, bonus plan or arrangement,
incentive award plan or arrangement, vacation policy,
severance pay plan, policy or agreement, deferred
compensation agreement or arrangement, executive
compensation or supplemental income arrangement,
consulting agreement, employment agreement and each
other employee benefit plan, agreement, arrangement,
program, practice or understanding that is not
described in Section 2.2(h)(i)(A) to which Christiana
or Logistic is a party or has any obligation
("Benefit Program or Agreement").
True and complete copies of each of the Plans, Benefit
Programs or Agreements, related trusts, if applicable, and all
amendments thereto, together with (i) the Forms 5500, 990 and
1041, as applicable, for the three most recent fiscal years,
(ii) all current summary plan descriptions for each such Plan,
(iii) the most recent Internal Revenue Service determination
letters for each such Plan, as applicable, and all
correspondence with the Internal Revenue Service and the
Department of Labor relating to such Plans, Benefit Programs
and Agreements have been furnished to Xxxxxxxxxxx.
(ii) Except as otherwise set forth in Section 2.2(h)
of the Christiana Disclosure Letter,
(A) None of Christiana or any Christiana
ERISA Affiliate contributes to or has an obligation
to contribute to, or has at any time contributed to
or had an obligation to contribute to, a plan subject
to Title IV of ERISA, including, without limitation,
a multi employer plan within the meaning of Section
3(37) of ERISA, nor have such companies engaged in
any transaction described in Sections 406 and 407 of
ERISA (unless exempt under Section 408) or Section
4975 of the Code (unless exempt);
(B) Each Plan and each Benefit Program or
Agreement has been administered, maintained and
operated in all material respects in accordance with
the terms thereof and in compliance with its
governing documents and applicable law (including,
where applicable, ERISA and the Code and timely
filing of Form 5500s for each year);
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(C) There is no matter pending with respect
to any of the Plans before any governmental agency,
and there are no actions, suits or claims pending
(other than routine claims for benefits) or, to the
knowledge of Christiana or C2, threatened against, or
with respect to, any of the Plans or Benefit Programs
or Agreements or its assets;
(D) No act, omission or transaction has
occurred which would result in imposition on
Christiana or any Christiana ERISA Affiliate of
breach of fiduciary duty liability damages under
Section 409 of ERISA, a civil penalty assessed
pursuant to subsections (c), (i) or (l) of Section
502 of ERISA or a tax imposed pursuant to Chapter 43
of Subtitle D of the Code; and
(E) Except as provided in Section 5.7, the
execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby
will not require Christiana or any Christiana ERISA
Affiliate to make a larger contribution to, or pay
greater benefits under, any Plan, Benefit Program or
Agreement than it otherwise would or create or give
rise to any additional vested rights or service
credits under any Plan or Benefit Program or
Agreement or cause the companies to make accelerated
payments.
(iii) Except as set forth in Section 2.2(h) of the
Christiana Disclosure Letter, termination of employment of any
employee of Christiana immediately after consummation of the
transactions contemplated by this Agreement would not result
in payments under the Plans, Benefit Programs or Agreements
which, in the aggregate, would result in imposition of the
sanctions imposed under Sections 280G and 4999 of the Code.
(iv) Each Plan may be unilaterally amended or
terminated in its entirety without liability except as to
benefits accrued thereunder prior to such amendment or
termination.
(v) Except as set forth in Section 2.2(h) of the
Christiana Disclosure Letter, none of the employees of
Christiana or Logistic are subject to union or collective
bargaining agreements.
(vi) None of Christiana or any of the Christiana
ERISA Affiliates has agreed or is obligated to provide retiree
medical coverage and each of such companies has fully complied
with all obligations under COBRA applicable to it.
(i) Taxes.
(i) Except as set forth in Section 2.2(i) of the
Christiana Disclosure Letter, all Tax Returns of or relating
to any Tax that are required to be filed on or before the
Closing Date by or with respect to Christiana or any
Christiana Subsidiary, or any other corporation that is or was
a member of an affiliated group (within the meaning of Section
1504(a) of the Code) of corporations of which Christiana was a
member for any period ending on or prior to the Closing Date,
have been or will be duly and timely filed, and all Taxes,
including interest and penalties, due and payable pursuant to
such Tax Returns have been or will be duly and timely paid or
adequately
-15-
provided for in reserves established by Christiana or any such
Christiana Subsidiary, except where the failure to file, pay
or provide for would not have a material adverse effect on the
financial condition, results of operations, or business of
Christiana or otherwise result in a Xxxxxxxxxx XXX. All income
Tax returns of or with respect to Christiana or any Christiana
Subsidiary have been audited by the applicable Governmental
Authority, or the applicable statute of limitations has
expired, for all periods up to and including the tax year
ended June 30, 1993. There is no material claim against
Christiana or any Christiana Subsidiary with respect to any
Taxes, and no material assessment, deficiency or adjustment
has been asserted or proposed with respect to any Tax Return
of or with respect to Christiana or any Christiana Subsidiary
that has not been adequately provided for in reserves
established by Christiana or such Christiana Subsidiary. The
total amounts set up as liabilities for current and deferred
Taxes in the consolidated financial statements included in the
Christiana Commission Filings have been prepared in accordance
with generally accepted accounting principles and are
sufficient to cover the payment of all material Taxes,
including any penalties or interest thereon and whether or not
assessed or disputed, that are, or are hereafter found to be,
or to have been, due with respect to the operations of
Christiana or any Christiana Subsidiary through the periods
covered thereby. Christiana has (and as of the Closing Date
will have) made estimated tax payments for taxable years for
which the United States consolidated federal income Tax return
is not yet due required with respect to Taxes. Except as set
forth in Section 2.2(i) of the Christiana Disclosure Letter,
no waiver or extension of any statute of limitations as to any
federal, state, local or foreign Tax matter has been given by
or requested from Christiana or any Christiana Subsidiary.
Except for statutory Liens for current Taxes not yet due, no
Liens for Taxes exist upon the assets of Christiana. Except as
set forth in paragraph 2.2(i) of the Christiana Disclosure
Letter, none of Christiana or any Christiana Subsidiary has
filed consolidated income Tax Returns with any corporation,
other than consolidated federal, state or foreign income Tax
returns by Christiana for any taxable period which is not now
closed by the applicable statute of limitations. Except as set
forth in Section 2.2(i) of the Christiana Disclosure Letter,
none of Christiana or any Christiana Subsidiary has any
deferred intercompany gain as defined in Treasury Regulations
Section 1.1502-13.
(ii) As of the Closing Date, to Christiana's
knowledge, there is no plan or intention by the stockholders
of Christiana to sell, exchange or otherwise dispose of a
number of shares of Xxxxxxxxxxx received in the Merger that
would reduce the Christiana stockholders' ownership of
Xxxxxxxxxxx shares to a number of shares having a value, as of
the date of the Merger, of less than 50% of the value of all
of the formerly outstanding Christiana Shares as of the same
date. The shares of Xxxxxxxxxxx Common Stock held by the
Christiana stockholders and otherwise sold, redeemed or
disposed of prior or subsequent to the Merger will be
considered in making this representation.
(iii) Christiana is not under the jurisdiction of a
court in a Title 11 or similar case with the meaning of
ss.368(a)(3)(A) of the Code.
(iv) There is no intercorporate indebtedness existing
between Christiana and Xxxxxxxxxxx that was issued, acquired
or will be settled at a discount.
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(v) As of the Closing Date, Christiana shall have
fully accrued for all Taxes that may be required to be paid as
a result of the Logistic Sale and the other transactions
contemplated hereby. The value of the interest in Logistic
Common Stock to be sold pursuant to the Logistic Sale has been
determined pursuant to an outside appraisal and reflects an
amount equal to or greater than the fair value and fair market
value of such shares.
(j) Environmental Matters. Except as set forth in Section
2.2(j) of the Christiana Disclosure Letter, (i) the properties,
operations and activities of Christiana and each of its Subsidiaries
complies in all material respects with all applicable Environmental
Laws; (ii) none of Christiana or any of its Christiana Subsidiaries is
subject to any existing, pending or, to the knowledge of Christiana,
threatened action, suit, investigation, inquiry or proceeding by or
before any governmental authority under any Environmental Law; (iii)
except where the failure would have a Xxxxxxxxxx XXX, all notices,
permits, licenses, or similar authorizations, if any, required to be
obtained or filed by Christiana under any Environmental Law in
connection with any aspect of the business of Christiana, Logistic or
any Christiana Subsidiary, including without limitation those relating
to the treatment, storage, disposal or release of a hazardous substance
or solid waste, have been duly obtained or filed and will remain valid
and in effect after the Merger and the Logistic Sale, and each of
Christiana, Logistic and each other Christiana Subsidiary is in
compliance with the terms and conditions of all such notices, permits,
licenses and similar authorizations; (iv) Christiana and each of its
Subsidiaries has satisfied and are currently in compliance with all
financial responsibility requirements applicable to their operations
and imposed by any governmental authority under any other Environmental
Law, and none of such parties has received any notice of noncompliance
with any such requirements; (v) to Christiana's knowledge, there are no
physical or environmental conditions existing on any property currently
owned or previously owned by Christiana or any entity in which it has
or had ownership interest that could reasonably be expected to give
rise to any on-site or off-site remedial obligations under any
Environmental Laws; and (vi) to Christiana's knowledge, since the
effective date of the relevant requirements of applicable Environmental
Laws, all hazardous substances or solid wastes generated by Christiana
or used in connection with their properties or operations have been
transported only by carriers authorized under Environmental Laws to
transport such substances and wastes, and disposed of only at
treatment, storage, and disposal facilities authorized under
environmental laws to treat, store or dispose of such substances and
wastes, and, to the knowledge of Christiana, such carriers and
facilities have been and are operating in compliance with such
authorizations and are not the subject of any existing, pending, or
overtly threatened action, investigation, or inquiry by any
governmental authority in connection with any Environmental Laws.
For purposes of this Agreement, the term "Environmental Laws"
shall mean any and all laws, statutes, ordinances, rules, regulations,
orders or determinations of any Governmental Authority pertaining to
health or the environment currently in effect in any and all
jurisdictions in which the party in question and its subsidiaries own
property or conduct business, including without limitation, the Clean
Air Act, as amended, the Comprehensive Environmental, Response,
Compensation, and Liability Act of 1980 ("CERCLA"), as amended, the
Federal Water Pollution Control Act, as amended, the Occupational
Safety and Health Act of 1970, as amended, the Resource Conservation
and Recovery Act of 1976 ("RCRA"), as amended, the Safe Drinking Water
Act, as amended, the Toxic Substances Control Act, as amended, the
Hazardous & Solid Waste Amendments Act
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of 1984, as amended, the Superfund Amendments and Reauthorization Act
of 1986, as amended, the Hazardous Materials Transportation Act, as
amended, the Oil Pollution Act of 1990 ("OPA"), any state laws
pertaining to the handling of oil and gas exploration and production
wastes or the use, maintenance, and closure of pits and impoundments,
and all other environmental conservation or protection laws. For
purposes of this Agreement, the terms "hazardous substance" and
"release" have the meanings specified in RCRA; provided, however, that
to the extent the laws of the state in which the property is located
establish a meaning for "hazardous substance," "release," "solid waste"
or "disposal" that is broader than that specified in either CERCLA or
RCRA, such broader meaning shall apply. For purposes of this Agreement,
the term "Governmental Authority" includes the United States, any
foreign jurisdiction, the state, county, city, and political
subdivisions in which the party in question owns property or conducts
business, and any agency, department, commission, board, bureau or
instrumentality of any of them.
(k) Investment Company. Christiana is not an investment
company as defined in the Investment Company Act of 1940 and the
rules and regulations promulgated thereunder.
(l) Severance Payments. Except as set forth in Section 2.2(l)
of the Christiana Disclosure Letter, Christiana will not have any
liability or obligation to pay a severance payment or similar
obligation to any of their respective employees, officers, or directors
as a result of the Merger or the transactions contemplated by this
Agreement, nor will any of such Persons be entitled to an increase in
severance payments or other benefits as a result of the Merger, the
Logistic Sale or the transactions contemplated by this Agreement or the
Other Agreements in the event of the subsequent termination of their
employment.
(m) Voting Requirements. Subject to the provisions of Section
5.3(a), the affirmative vote of the holders of a majority of the
outstanding shares of Christiana Common Stock is the only vote of the
holders of any class or series of the capital stock of Christiana
necessary to approve this Agreement, the Merger, the Logistic Sale and
the transactions contemplated hereby and by the Other Agreements in
order to comply with the WBCL, Christiana's Articles of Incorporation
and Bylaws and the rules and regulations of the New York Stock Exchange
(the "NYSE").
(n) Brokers. Except for Prudential Securities Incorporated,
whose fees shall be paid by Christiana, no broker, investment banker,
or other Person acting on behalf of Christiana is or will be entitled
to any broker's, finder's or other similar fee or commission in
connection with the transactions contemplated by this Agreement.
(o) Assets and Liabilities at Closing. At the Effective Time:
(i) the assets of Christiana (the "Christiana
Assets") shall consist of (1) at least 3,897,462 shares of
Xxxxxxxxxxx Common Stock, which shall be held free and clear
of all Liens, (2) cash of at least $13,000,000, (3) a
one-third interest in Logistic, (4) certain tax benefits, and
(5) all tax, financial, accounting and other general corporate
records, including records relating to all past operations and
subsidiaries (including partnerships and joint ventures);
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(ii) the liabilities of Christiana (the "Christiana
Liabilities") shall consist only of (1) transactional expenses
related to the Merger and the Logistic Sale, (2) all Taxes of
Christiana relating to periods through the Closing Date,
including Taxes (other than the Xxxxxxxxxxx Related Taxes)
from the Logistic Sale and deferred intercompany Taxes and (3)
all other outstanding and accrued liabilities to which
Christiana may be subject, other than Assumed Liabilities (as
defined in the Logistic Purchase Agreement) and Xxxxxxxxxxx
Related Taxes;
(iii) all obligations and liabilities (fixed or
contingent, known or unknown) of Christiana shall have been
assumed by C2 and Logistic other than liabilities described in
clause (ii); and
(iv) except as set forth in Section 2.2(o) of the
Disclosure Schedule or agreed to in writing by Xxxxxxxxxxx
prior to the Closing, Christiana shall have been released from
all continuing obligations (i) relating to Logistic or any
other historical business of Christiana or its subsidiaries
and affiliates and (ii) under any and all agreements relating
to the borrowing of funds, including any and all guarantees or
similar arrangements relating thereto.
(p) Compliance with Laws. Christiana, Logistic, C2 and each of
their respective subsidiaries hold all required, necessary or
applicable permits, licenses, variances, exemptions, orders, franchises
and approvals of all Governmental Entities, except where the failure to
so hold could not reasonably be expected to have a Xxxxxxxxxx XXX (the
"Christiana Permits"). All applications with respect to such permits,
licenses, variances, exemptions, orders, franchises and approvals were
complete and correct in all material respects when made and neither
Christiana nor C2 know of any reason why any of such permits, licenses,
variances, exemptions, orders, franchises and approvals would be
subject to cancellation. Christiana, Logistic, C2 and each of their
respective subsidiaries are in compliance with the terms of the
Christiana Permits except where the failure to so comply could not
reasonably be expected to have a Xxxxxxxxxx XXX. None of Christiana,
Logistic, C2 or any of their respective subsidiaries has violated or
failed to comply with any statute, law, ordinance, regulation, rule,
permit or order of any Federal, state or local government, domestic or
foreign, or any Governmental Entity, any arbitration award or any
judgment, decree or order of any court or other Governmental Entity,
applicable to Christiana, Logistic, C2 or any of their respective
subsidiaries or their respective business, assets or operations, except
for violations and failures to comply that would not have a Xxxxxxxxxx
XXX.
(q) Contracts.
(i) Section 2.2(q) to the Christiana Disclosure
Letter contains a complete list of the following contracts,
agreements, arrangements and commitments: (i) all employment
or consulting contracts or agreements to which Christiana or
Logistic is contractually obligated; (ii) current leases,
sales contracts and other agreements with respect to any
property, real or personal, of Christiana or Logistic or to
which Christiana or Logistic is contractually obligated; (iii)
contracts or commitments for capital expenditures or
acquisitions in excess of $30,000 to which Christiana or
Logistic is obligated; (iv) agreements, contracts, indentures
or other instruments relating to the borrowing of money, or
the guarantee of any obligation for the borrowing of money, to
which Christiana or Logistic or any of their subsidiaries is a
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party or any of their respective properties is bound; (v)
contracts or agreements or amendments thereto that would be
required to be filed as an exhibit to an Annual Report on Form
10-K filed by Christiana as of the date hereof that has not
been filed as an exhibit to the Christiana's Annual Report on
Form 10-K for the year ended June 30, 1997, filed by it with
the Commission or any report filed with the Commission under
the Exchange Act since such date; (vi) all corporations,
partnerships, limited liability companies and other entities
which Christiana has owed, directly or indirectly, an equity
interest since 1953, (vii) all material indemnification and
guaranty or other similar obligations to which Christiana or
Logistic is bound and which the officers of Christiana, after
reasonable investigation, are aware, (viii) any outstanding
bonds, letters of credit posted or guaranteed by Christiana or
Logistic with respect to any Person, (ix) any covenants not to
compete or other obligations affecting Christiana or Logistic
that would restrict the Surviving Corporation or Xxxxxxxxxxx
and its affiliates from engaging in any business or activity
which the officers of Christiana or Logistic are aware, after
reasonable investigation and (x) contracts, agreements,
arrangements or commitments, other than the foregoing that
could reasonably be considered to be material to Christiana or
Logistic.
(ii) True and correct copies of all the instruments
described in Section 2.2(q) of the Christiana Disclosure
Letter have been furnished or made a available to Xxxxxxxxxxx.
Except as noted in the Christiana Disclosure Letter, all such
agreements, arrangements or commitments are valid and
subsisting and each of Christiana, Logistic and their
respective subsidiaries to the extent each is a party, has
duly performed its obligations thereunder in all material
respects to the extent such obligations have accrued, and no
breach or default thereunder by Christiana, Logistic or their
respective subsidiaries or, to the knowledge of Christiana,
any other party thereto has occurred that could impair the
ability of Christiana, Logistic or their respective
subsidiaries to enforce any material rights thereunder. There
are no material liabilities of any of the parties to any of
the contracts between Christiana, Logistic or C2 or any of
their respective subsidiaries and third parties arising from
any breach of or default in any provision thereof or which
would permit the acceleration of any obligation of any party
thereto or the creation of a Lien upon any asset of
Christiana, Logistic or any of their respective subsidiaries.
(r) Title to Property.
(i) At the Effective Time, Christiana will have good
and marketable title to, or valid leasehold interests in, all
its properties and assets. Christiana has good and valid title
to 3,897,462 shares of Xxxxxxxxxxx Common Stock, free and
clear of all Liens. Christiana has good and valid title to
1000 units of Logistic, free and clear of all Liens, which
units represents all of the interest in Logistics.
(ii) Except as set forth in Section 2.2(r)(ii) of the
Christiana Disclosure Letter, each of Christiana and Logistic
has complied in all material respects with the terms of all
leases to which it is a party and under which it is in
occupancy, and all such leases are in full force and effect.
Each of Christiana and Logistic enjoys peaceful and
undisturbed possession under all such leases.
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(s) Insurance Policies. Section 2.2(s) of the Christiana
Disclosure Letter contains a correct and complete description of all
insurance policies of Christiana covering Christiana, Logistic and
their respective subsidiaries, any employees or other agents of
Christiana, Logistic and their respective subsidiaries or any assets of
Christiana and its subsidiaries. Each such policy is in full force and
effect, is with responsible insurance carriers and is substantially
equivalent in coverage and amount to policies covering companies of the
size of Christiana and in the business in which Christiana and its
subsidiaries is engaged, in light of the risk to which such companies
and their employees, businesses, properties and other assets may be
exposed. All retroactive premium adjustments under any worker's
compensation policy of Christiana or any of its Subsidiaries have been
recorded in Christiana's financial statements in accordance with
generally accepted accounting principles and are reflected in the
financial statements contained in the Commission Filings.
(t) Loans. Section 2.2(t) of the Christiana Disclosure Letter
sets forth all existing loans, advances or other extensions of credit
(excluding accounts receivable arising in the ordinary course of
business) by Christiana or its subsidiaries to any party other than
intercompany loans, advances, guaranties or extensions of credit. All
items listed in Section 2.2(t) of the Christiana Disclosure Letter will
be repaid in full or assumed by C2 prior to the Effective Time of the
Merger. All intercompany obligations and loans between Christiana and
its subsidiaries, including C2, will be extinguished prior to the
Logistic Sale without any ongoing liability to Christiana or C2 with
respect thereto, except as set forth herein or in the Logistic Purchase
Agreement.
(u) No Fraudulent Transfer. Christiana has not within the last
twelve months made any transfer or incurred any obligation with actual
intent to hinder, delay or defraud any entity to which it was or may
become indebted and it has not transferred any material property
without receiving reasonably equivalent value for any such transfer
obligation. Both immediately prior to and immediately after the
Logistic Sale and the Merger, (i) the fair value of (x) Christiana's
assets at the time of the Merger and (y) Logistic's and C2's assets
after the Logistic Sale and (z) the assets of CST Financial, Inc.
("CST") Martinique Holdings, Inc. ("MHI") and Christiana Community
Builders, Inc. ("CCB") immediately prior to their liquidation in each
case at a fair valuation exceeds their respective debts and
liabilities, subordinated, contingent or otherwise, (ii) the present
fair saleable value of Christiana's, Logistic's, C2's, CST's, MHI's and
CCB's property is greater than the amount that will be required to pay
its probable liability on their respective debts and other liabilities,
subordinated, contingent or otherwise, as such debts and liabilities
become absolute and mature, (iii) Christiana prior to the Logistic Sale
and Logistic, C2 after the Logistic Sale and CST, MHI and CCB prior to
their liquidation each reasonably expect to be able to pay its debts
and liabilities, subordinated, contingent or otherwise, as such debts
and liabilities become absolute and matured, and (iv) Christiana before
the Logistic Sale and Logistic and C2 after the Logistic Sale will not
have unreasonably small capital with which to conduct the business in
which it is engaged as such business is now conducted and is proposed
to be conducted. For all purposes of clauses of (i) through (iv), the
amount of contingent liabilities at any time shall be computed as the
amount that, in light of all the facts and circumstances existing at
such time, represents the amount that can reasonably be expected to
become an actual or matured liability.
(v) Information Supplied. None of the information supplied or
to be supplied by Christiana or C2 for inclusion or incorporation by
reference in (i) the Registration
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Statement (as defined in Section 5.1) will, at the time the
Registration Statement is filed with the Commission, and at any time it
is amended or supplemented or at the time it becomes effective under
the Securities Act, contain any untrue statement of a material fact or
omit to state any material fact required to be stated therein or
necessary to make the statements therein not misleading, and (ii) the
Proxy Statement will, at the date the Proxy Statement is first mailed
to Christiana's stockholders and at the time of the Christiana
Stockholders Meeting, contain any untrue statement of a material fact
or omit to state any material fact required to be stated therein or
necessary in order to make the statements therein, in light of the
circumstances under which they are made, not misleading. The Proxy
Statement will comply as to form in all material respects with the
requirements of the Exchange Act and the rules and regulations
thereunder. For purposes of this Agreement, the parties agree that the
statements made and information in the Registration Statement and the
Proxy Statement relating to the Federal income tax consequences of the
transactions contemplated hereby shall be deemed to be supplied by
Christiana and C2 and not by Xxxxxxxxxxx or Sub.
ARTICLE III
COVENANTS OF CHRISTIANA
3.1 Conduct of Business by Christiana Pending the Merger. Christiana
covenants and agrees that, from the date of this Agreement until the Effective
Time, unless Xxxxxxxxxxx shall otherwise agree in writing or as otherwise
expressly contemplated by this Agreement or the Logistic Purchase Agreement or
set forth in Section 3.1 of the Christiana Disclosure Letter:
(a) the business of Christiana and the Christiana Subsidiaries
shall be conducted only in, and Christiana and the Christiana
Subsidiaries shall not take any action except in, the ordinary course
of business and consistent with past practice, provided that Christiana
may take the actions required by Section 3.4 hereof;
(b) Christiana shall not directly or indirectly do any of the
following: (i) issue, sell, pledge, dispose of or encumber any capital
stock of Christiana except upon the exercise of Christiana Options;
(ii) split, combine, or reclassify any outstanding capital stock, or
declare, set aside, or pay any dividend payable in cash, stock,
property, or otherwise with respect to its capital stock whether now or
hereafter outstanding; (iii) redeem, purchase or acquire or offer to
acquire any of its capital stock; (iv) acquire, agree to acquire or
make any offer to acquire for cash or other consideration, any equity
interest in or assets of any corporation, partnership, joint venture,
or other entity in an amount greater than $500,000, provided that
Christiana may take the actions required by Section 3.4 hereof; or (v)
enter into any contract, agreement, commitment, or arrangement with
respect to any of the matters set forth in this Section 3.1(b);
(c) Christiana shall not transfer, dispose or otherwise convey
any of the shares of Xxxxxxxxxxx Common Stock held by it or grant or
permit there to exist any Lien on such shares;
(d) Christiana shall not enter into any contract regarding its
business having a term greater than 120 days or involving an amount in
excess of $50,000 or commit to do the
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same and except for a cold storage facility in Hudsonville, Michigan,
no Christiana Subsidiary shall enter into any contract outside the
ordinary course of business;
(e) Christiana shall not become bound by any agreement or
obligation in an amount in excess of $500,000 in the aggregate for all
such agreements and obligations;
(f) Christiana shall not pledge or encumber any of the assets
to be held by Christiana following the Logistic Sale;
(g) Neither Christiana nor any of its Subsidiaries shall enter
into any employment or consulting contracts;
(h) Neither Christiana nor any of its Subsidiaries shall enter
into any contract or agreement that if effective on the date hereof
would be required to be identified as a disclosure pursuant to Section
2.2(q) of the Christiana Disclosure Letter;
(i) Neither Christiana nor any of its Subsidiaries shall sell,
lease, mortgage, pledge, xxxxx x Xxxx on or otherwise encumber or
otherwise dispose of any of Christiana's or its Subsidiaries'
properties or assets, except sales of inventory in the ordinary course
of business consistent with past practice and Christiana may liquidate
(in a manner acceptable to Xxxxxxxxxxx) CST Financial, Inc., Martinique
Holdings, Inc. and Christiana Community Builders, Inc. and transfer
their assets to Logistic without consideration;
(j) Neither Christiana nor any of its Subsidiaries shall,
directly or indirectly, incur any indebtedness for borrowed money or
guarantee any such indebtedness of another Person, issue or sell any
debt securities or warrants or other rights to acquire any debt
securities of Christiana or its Subsidiaries, guarantee any debt
securities of another Person, enter into any "keep well" or other
agreement to maintain any financial statement condition of another
Person or enter into any arrangement having the economic effect of any
of the foregoing, except for short-term borrowings incurred in the
ordinary course of business consistent with past practice which
obligations in respect of Christiana and its Subsidiaries other than
Logistic shall be released in connection with the Logistic Sale, or
make or permit to remain outstanding any loans, advances or capital
contributions to, or investments in, any other Person, other than to
Christiana or any direct or indirect wholly owned subsidiary of
Christiana;
(k) Neither Christiana nor any of its Subsidiaries shall make
any election relating to Taxes except for those elections to be made in
connection with its 1997 Tax Returns that are consistent with the 1996
Tax Returns;
(l) Neither Christiana nor any of its Subsidiaries shall
change any accounting principle used by it;
(m) Christiana shall use its reasonable efforts (i) to
preserve intact the business organization of Christiana and Logistic
except Christiana may liquidate (in a manner acceptable to Xxxxxxxxxxx)
CST Financial, Inc., Martinique Holdings, Inc. and Christiana Community
Builders, Inc. and transfer their assets to Logistic without
consideration, (ii) to maintain in effect any material authorizations
or similar rights of Christiana and Logistic, (iii) to preserve the
goodwill of those having material business relationships with it; (iv)
to
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maintain and keep each of Christiana's properties in the same repair
and condition as presently exists, except for deterioration due to
ordinary wear and tear and damage due to casualty; and (v) to maintain
in full force and effect insurance comparable in amount and scope of
coverage to that currently maintained by it;
(n) Christiana shall, and shall cause the Christiana
Subsidiaries to, perform their respective obligations under any
contracts and agreements to which it is a party or to which any of its
assets is subject, except to the extent such failure to perform would
not have a Xxxxxxxxxx XXX and except for such obligations as Christiana
in good faith may dispute;
(o) Christiana shall cause there to exist immediately prior to
the Effective Time Christiana Net Cash (including $10,666,677 to be
paid by C2 under the Logistic Purchase Agreement) of not less than $13
million;
(p) Neither Christiana nor any of its Subsidiaries shall
settle or compromise any litigation (whether or not commenced prior to
the date of this Agreement) other than settlements or compromises: (i)
of litigation where the amount paid in settlement or compromise does
not exceed $500,000, or if greater, the amount of the reserve therefor
reflected in the most recent SEC Documents and the terms of the
settlement would not otherwise have a Xxxxxxxxxx XXX, or (ii) in
consultation and cooperation with Xxxxxxxxxxx, and, with respect to any
such settlement, with the prior written consent of Xxxxxxxxxxx;
(q) Christiana shall cause the Logistic Purchase Agreement to
be executed and delivered by Christiana and the Logistic Sale to be
effected prior to the Merger immediately prior to the Effective Time;
(r) Christiana shall not authorize any of, or commit or agree
to take any of, or permit any Christiana Subsidiary to take any of, the
foregoing actions to the extent prohibited by the foregoing and shall
not, and shall not permit any of the Christiana Subsidiaries to, take
any action that would, or that reasonably could be expected to, result
in any of the representations and warranties set forth in this
Agreement becoming untrue or any of the conditions to the Merger set
forth in Article VI not being satisfied. Christiana promptly shall
advise Xxxxxxxxxxx orally and in writing of any change or event having,
or which, insofar as reasonably can be foreseen, would have, a material
adverse effect on Christiana and the Christiana Subsidiaries, taken as
a whole, or cause a Xxxxxxxxxx XXX.
(s) Christiana shall cause Logistic to pay to Christiana a
distribution in the amount of $20 million cash prior to the Effective
Time (the "TLC Dividend");
(t) Christiana shall cause Logistic to pay in full the entire
principal amount of the Wiscold Note dated September 1, 1992, in the
principal amount of $3,000,000, together with all accrued interest
thereon (the "Wiscold Note"); and
(u) Except as set forth in Section 2.2(o) of the Disclosure
Schedule or agreed to in writing by Xxxxxxxxxxx prior to the Closing,
Christiana shall cause all of its obligations (i) relating to Logistics
or any other historical business of Christiana or its Subsidiaries and
(ii) under any and all agreements relating to the borrowing of funds,
including all guarantees and other similar arrangements relating
thereto, to be fully released or otherwise satisfied in a manner
acceptable to Xxxxxxxxxxx.
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3.2 Cash Requirements. Christiana covenants that as of the Effective
Time it shall have cash equal to the sum of (i) $13 million (including
$10,666,677 to be received under the Logistic Purchase Agreement) and (ii) all
accrued and unpaid liabilities and obligations of Christiana. For purposes of
this Section 3.2, the unpaid liabilities and obligations of Christiana shall
mean the full undiscounted amount of liabilities for which Christiana shall be
responsible, including any liabilities that will accrue as a result of the
Merger, the Logistic Sale or the transactions contemplated herein, whether or
not such liabilities would be required to be reflected as a liability by
generally accepted accounting principles; provided, however, that such
liabilities shall not include any liabilities for any gain on any Xxxxxxxxxxx
Common Stock held by Christiana realized as a result of a sale of such stock by
Christiana or a liquidation or merger of Christiana (other than the Merger)
within two years after the Effective Time, nor any tax liability for income of
Xxxxxxxxxxx attributable to Christiana under the equity method of accounting
either before or after the Effective Time (the "Xxxxxxxxxxx Related Taxes).
Further, for purposes of calculating such liabilities, any Taxes (other than the
Xxxxxxxxxxx Related Taxes) payable in respect of the Logistic Sale or other
transactions contemplated herein or under the Logistic Purchase Agreement shall
be fully accrued as a liability and any Tax credits, deductions, other Tax
benefits of Christiana shall not be considered or used to offset any such
liability. The provisions of this Section 3.2 shall not affect Logistic's and
C2's obligations under the Logistic Purchase Agreement to assume and indemnify
Xxxxxxxxxxx as set forth therein.
3.3 Affiliates' Agreements. Prior to the Closing Date, Christiana shall
deliver to Xxxxxxxxxxx a letter identifying all Persons that are, at the time
this Agreement is submitted for approval to the stockholders of Christiana,
"affiliates" of Christiana for purposes of Rule 145 under the Securities Act
("Affiliates"). Christiana shall deliver or cause to be delivered to Xxxxxxxxxxx
an undertaking by each Affiliate in form satisfactory to Xxxxxxxxxxx that no
Xxxxxxxxxxx Common Stock received or to be received by such Affiliate pursuant
to the Merger will be sold or disposed of except pursuant to an effective
registration statement under the Securities Act or in accordance with the
provisions of Rule 144 or paragraph (d) of Rule 145 under the Securities Act or
another exemption from registration under the Securities Act.
3.4 Xxxxxxxxxxx Common Stock Purchases. Prior to the date the Proxy
Statement is mailed to the stockholders of Xxxxxxxxxxx and Xxxxxxxxx, Xxxxxxxxxx
shall purchase, in one transaction or a series of transactions, at least $10
million of Xxxxxxxxxxx Common Stock (the "$10 Million Purchase"). After the
Christiana Stockholders Meeting, as defined in section 5.3, Christiana shall
purchase, in one transaction or a series of transactions, up to an addtional $5
million of Xxxxxxxxxxx Common stock (the "$5 Million Purchase"). Notwithstanding
the foregoing Christiana shall not be required to make any purchase unless such
purcahse, when considering the then current price of Xxxxxxxxxxx Common Stock,
prior purchases and amounts, if any, remaining under the $10 million Purchase
and the $5 Million Purchase will allow the merger when completed to qualify as a
reorganization within the meaning of Section 368(a)(1)(A) by reason of Section
368(a)(2)(E) of the Code. Christiana may, but is not required to, waive the
foregoing and puchase any other Xxxxxxxxxxx Common Stock. All such purchases
shall be made in accordance with applicable securities laws, including
Regulation M and Rule 10b-8 promulgated under the Exchange Act.
ARTICLE IV
COVENANTS OF XXXXXXXXXXX PRIOR TO THE EFFECTIVE TIME
4.1 Reservation of Xxxxxxxxxxx Stock. Xxxxxxxxxxx shall reserve for
issuance, out of its authorized but unissued capital stock, such number of
shares of Xxxxxxxxxxx Common Stock as may be issuable upon consummation of the
Merger.
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4.2 Conduct of Xxxxxxxxxxx Pending the Merger. Xxxxxxxxxxx covenants
and agrees that, from the date of this Agreement until the Effective Time,
unless Christiana shall otherwise agree in writing or as otherwise expressly
contemplated by this Agreement, it will not take any action that would, or that
could be expected to, result in any of the representations and warranties set
forth in this Agreement becoming untrue or any of the conditions to the merger
set forth in Article VI not being satisfied.
4.3 Stock Exchange Listing. Xxxxxxxxxxx shall use reasonable efforts to
cause the shares of Xxxxxxxxxxx Common Stock to be issued in the Merger to be
approved for listing on the NYSE, subject to official notice of issuance, prior
to the Closing Date.
ARTICLE V
ADDITIONAL AGREEMENTS
5.1 Joint Proxy Statement/Prospectus; Registration Statement. As
promptly as reasonably practicable after the execution of this Agreement,
Xxxxxxxxxxx and Christiana shall prepare and file with the Commission
preliminary proxy materials that shall constitute the Proxy Statement of
Xxxxxxxxxxx and Xxxxxxxxxx and the registration statement with respect to the
Xxxxxxxxxxx Common Stock to be issued in connection with the Merger (the
"Registration Statement"). As promptly as reasonably practicable after final
comments are received from and cleared by the Commission on the preliminary
proxy materials, Xxxxxxxxxxx and Xxxxxxxxxx shall file with the Commission a
combined joint proxy statement and registration statement on Form S-4 (or on
such other form as shall be appropriate) relating to the approval and adoption
of the Merger and this Agreement by the stockholders of Xxxxxxxxxxx and the
stockholders of Christiana and the issuance by Xxxxxxxxxxx of Xxxxxxxxxxx Common
Stock in connection with the Merger and shall use their reasonable efforts to
cause the Registration Statement to become effective as soon as practicable.
Subject to the terms and conditions set forth in Section 6.2 and the fiduciary
obligations of the Board of Directors of Xxxxxxxxxxx with respect to such
matters, the Proxy Statement shall contain a statement that the Board of
Directors of Xxxxxxxxxxx recommended that the stockholders of Xxxxxxxxxxx
approve and adopt the Merger and this Agreement. Subject to the terms and
conditions set forth in Section 6.3 and the fiduciary obligations of the Board
of Directors of Christiana with respect to such matters, the Proxy Statement
shall contain a statement that the Board of Directors of Christiana recommended
that the stockholders of Christiana approve and adopt the Merger and this
Agreement.
5.2 Accountants Letter. Christiana shall use its reasonable efforts to
cause Xxxxxx Xxxxxxxx LLP to deliver a letter pursuant to SAS 72 dated as of the
date of the Proxy Statement and confirmed and updated at the Closing as of the
Closing Date, and addressed to itself and Xxxxxxxxxxx, in the form and substance
reasonably satisfactory to Xxxxxxxxxxx and customary in the scope and substance
for agreed upon procedures letters delivered by independent public accountants
in connection with registration statements and proxy statements similar to the
Registration Statement and Proxy Statement.
5.3 Meetings of Stockholders.
(a) Christiana shall promptly take all action reasonably
necessary in accordance with the WBCL and its Articles of Incorporation
and bylaws to convene a meeting of its stockholders to consider and
vote upon the adoption and approval of the Merger and this
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Agreement and the Logistic Sale (the "Christiana Shareholder
Meeting"). Christiana shall provide that, in addition to any vote that
may be required by law, the approval of the Merger and this Agreement
and the Logistic Sale shall require approval of a majority of the
votes cast for or against such matters excluding any shares of
Christiana Common Stock held by Lubar & Co. Incorporated and its
affiliates; provided, however, Christiana may, in lieu of such
requirement, obtain an agreement by Lubar & Co. Incorporated and its
affiliates to vote all of its shares of Christiana Common Stock for,
against or abstain from voting with respect to such matters in the
same proportion as the shares of Christiana Common Stock are voted on
such matters by the other stockholders of Christiana. Subject to the
terms and conditions set forth in Section 6.3 and the fiduciary
obligations of the Board of Directors of Christiana with respect to
such matters, the Board of Directors of Christiana (i) shall recommend
at such meeting that the stockholders of Christiana vote to adopt and
approve the Merger and this Agreement and the Logistic Sale, (ii)
shall use its best efforts to solicit from stockholders of Christiana
proxies in favor of such adoption and approval and (iii) shall take
all other action reasonably necessary to secure a vote of its
stockholders in favor of the adoption and approval of the Merger and
this Agreement.
(b) Xxxxxxxxxxx shall promptly take all action reasonably
necessary in accordance with the General Corporation Law of the State
of Delaware (the "DGCL") and its Certificate of Incorporation and
bylaws to convene a meeting of its stockholders to consider and vote
upon the adoption and approval of the Merger and this Agreement.
Subject to the terms and conditions set forth in Section 6.2 and the
fiduciary obligations of the Board of Directors of Xxxxxxxxxxx with
respect to such matters, the Board of Directors of Xxxxxxxxxxx (i)
shall recommend at such meeting that the stockholders of Xxxxxxxxxxx
vote to adopt and approve the Merger and this Agreement, (ii) shall use
its reasonable efforts to solicit from stockholders of Xxxxxxxxxxx
proxies in favor of such adoption and approval and (iii) shall take all
other action reasonably necessary to secure a vote of its stockholders
in favor of the adoption and approval of the Merger and this Agreement.
(c) Xxxxxxxxxxx and Christiana shall coordinate and cooperate
with respect to the timing of such meetings and shall endeavor to hold
such meetings on the same day and as soon as practicable after the date
hereof.
5.4 Filings; Consents; Reasonable Efforts. Subject to the terms and
conditions of this Agreement, Christiana and Xxxxxxxxxxx shall (i) make all
necessary filings with respect to the Merger and this Agreement under the HSR
Act, the Securities Act, the Exchange Act, and applicable blue sky or similar
securities laws and shall use all reasonable efforts to obtain required
approvals and clearances with respect thereto; (ii) use reasonable efforts to
obtain all consents, waivers, approvals, authorizations, and orders required in
connection with the authorization, execution, and delivery of this Agreement and
the consummation of the Merger; and (iii) use reasonable efforts to take, or
cause to be taken, all appropriate action, and do, or cause to be done, all
things necessary, proper, or advisable to consummate and make effective as
promptly as practicable the transactions contemplated by this Agreement.
5.5 Notification of Certain Matters. Christiana shall give prompt
notice to Xxxxxxxxxxx, and Xxxxxxxxxxx shall give prompt notice to Christiana,
orally and in writing, of (i) the occurrence, or failure to occur, of any event
which occurrence or failure would be likely to cause any representation or
warranty contained in this Agreement to be untrue or inaccurate at any time from
the date hereof to the Effective Time; and (ii) any material failure of
Christiana or Xxxxxxxxxxx, as
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the case may be, or any officer, director, employee or agent thereof, to comply
with or satisfy any covenant, condition or agreement to be compiled with or
satisfied by it hereunder.
5.6 Expenses. Whether or not the Merger is consummated, all costs and
expenses incurred in connection with this Agreement and the transactions
contemplated hereby shall be paid by the party incurring such expenses, except
those out-of-pocket expenses (which do not include fees for attorneys,
accountants and financial advisors) incurred in connection with (i) the
registration fees for the Weatherford Common Stock under the Securities Act to
be issued in the Merger, (ii) the registration and qualification of the
Weatherford Common Stock under any state securities and blue sky laws, (iii) the
listing of the Weatherford Common Stock on the NYSE, (iv) the HSR filing fee (v)
the investment banking, appraisal, and related expenses of Christiana, (vi) the
cost of any proxy solicitors and (vii) the printing and mailing of the
Registration Statement and the Proxy Statement shall be paid by Christiana;
provided, however, that if this Agreement shall have been terminated pursuant to
Section 7.1 as a result of the willful breach by a party of any of its
representations, warranties, covenants, or agreements set forth in this
Agreement, such breaching party shall pay the direct out-of-pocket costs and
expenses of the other parties in connection with the transactions contemplated
by this Agreement.
5.7 Christiana's Employee Benefits.
(a) Christiana shall take action prior to the Merger and the
Logistic Sale to (i) either cancel all outstanding Christiana Options
or accelerate such Christiana Options and make such Christiana Options
terminate prior to the Effective Time and (ii) and terminate the
Christiana Option Plan.
(b) Christiana shall pay to each holder of Christiana Options
an amount of cash necessary to obtain cancellation of all Christiana
Options held by such holders.
(c) Christiana shall cause all employee benefit plans to which
it is a sponsor or has obligations to be terminated or assumed by
Logistic or C2 without any continuing obligations on the part of
Christiana.
(d) Christiana shall transfer to Logistic or C2 all employees
of Christiana without any liability to the Surviving Corporation. C2
shall be responsible for all severance and other obligations with
respect to such terminated employees, if any. As of the Effective Time,
Christiana shall have no employees or employee benefit plans or
obligations.
5.8 Liquidation or Merger of Christiana. Weatherford agrees that for a
period of two years following the Effective Time it shall not cause or permit
Christiana to (i) liquidate or dissolve, (ii) sell or transfer any shares of
Weatherford Common Stock held by Christiana or (iii) merge Christiana into any
other entity unless Weatherford receives an opinion of a nationally-recognized
tax counsel or accounting firm that such transaction will not adversely affect
the tax treatment of the Merger; provided, however, this restriction shall not
be deemed to prohibit or restrict (i) a sale or disposition of Christiana's
interest in Logistic to the extent permitted by the Logistic Purchase Agreement
or the operating agreement relating to Logistic, (ii) a change in control of
Weatherford, (iii) a merger, consolidation, share exchange or similar
transaction involving Weatherford or its subsidiaries (other than Christiana) or
(iv) a sale or disposition of any assets of Weatherford or its subsidiaries
(other than Christiana).
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ARTICLE VI
CONDITIONS
6.1 Conditions to Obligation of Each Party to Effect the Merger. The
respective obligations of each party to effect the Merger shall be subject to
the fulfillment at or prior to the Closing Date of the following conditions:
(a) This Agreement and the Merger (and the Logistic Sale in
the case of Christiana) shall have been approved and adopted by the
requisite vote of the stockholders of Christiana and Weatherford, as
may be required by law, by the rules of the NYSE, by Section 5.3(a) and
by any applicable provisions of their respective charters or bylaws;
(b) The waiting period (and any extension thereof) applicable
to the consummation of the Merger under the HSR Act shall have expired
or been terminated;
(c) No order shall have been entered and remain in effect in
any action or proceeding before any foreign, federal or state court or
governmental agency or other foreign, federal or state regulatory or
administrative agency or commission that would prevent or make illegal
the consummation of the Logistic Sale and the Merger;
(d) The Registration Statement and a registration statement
under the Securities Act to be filed by C2 in connection with the
Merger shall each be effective on the Closing Date, and all
post-effective amendments thereto filed shall have been declared
effective or shall have been withdrawn; and no stop-order suspending
the effectiveness thereof shall have been issued and no proceedings for
that purpose shall have been initiated or, to the knowledge of the
parties, threatened by the Commission;
(e) There shall have been obtained any and all material
permits, approvals and consents of securities or blue sky commissions
of any jurisdiction, and of any other governmental body or agency, that
reasonably may be deemed necessary so that the consummation of the
Merger and the transactions contemplated thereby will be in compliance
with applicable laws, the failure to comply with which would have a
Xxxxxxxxxx XXX or Xxxxxxxxxxx XXX;
(f) The shares of Weatherford Common Stock issuable upon
consummation of the Merger shall have been approved for listing on the
NYSE, subject to official notice of issuance;
(g) Weatherford, C2 and Christiana shall have received an
opinion, dated as of the Effective Time, from American Appraisal
Associates, Inc. in form and substance satisfactory to them, in respect
of the matters described in Section 2.2(u); and
(h) All approvals and consents of third Persons (i) the
granting of which is necessary for the consummation of the Merger, the
Logistic Sale or the transactions contemplated in connection therewith
and (ii) the non-receipt of which would have a Xxxxxxxxxx XXX or an
Xxxxxxxxxxx XXX.
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6.2 Additional Conditions to Obligations of Weatherford. The obligation
of Weatherford to effect the Merger is, at the option of Weatherford, also
subject to the fulfillment at or prior to the Closing Date of the following
conditions:
(a) The representations and warranties of Christiana contained
in Section 2.2 shall be accurate as of the date of this Agreement and
(except to the extent such representations and warranties speak
specifically as of an earlier date) as of the Closing Date as though
such representations and warranties had been made at and as of that
time; all of the terms, covenants and conditions of this Agreement to
be complied with and performed by Christiana on or before the Closing
Date shall have been duly complied with and performed in all material
respects; and a certificate to the foregoing effect dated the Closing
Date and signed by the chief executive officer and the president of
Christiana shall have been delivered to Weatherford;
(b) There shall not have occurred or exist any fact or
condition that would reasonably result in a Xxxxxxxxxx XXX or would
constitute a material fixed or contingent liability to Christiana, and
Weatherford shall have received a certificate signed by the president
of Christiana dated the Closing Date to such effect;
(c) The Board of Directors of Weatherford shall have received
from Xxxxxx Xxxxxxx & Co. Incorporated, financial advisor to
Weatherford, a written opinion, satisfactory in form and substance to
the Board of Directors of Weatherford, to the effect that consideration
to be paid by Weatherford in the Merger is fair to Weatherford from a
financial point of view, which opinion shall have been confirmed in
writing to such Board as of a date reasonably proximate to the date the
Proxy Statement is first mailed to the stockholders of Weatherford and
not subsequently withdrawn;
(d) The Christiana Options shall have been cancelled and the
Christiana Plans shall have been terminated or such options shall have
been exercised;
(e) Christiana shall have received, and furnished written
copies of Weatherford of, the Christiana affiliates' agreements
pursuant to Section 3.3;
(f) Weatherford shall have received from Xxxxx & Lardner,
counsel to Christiana, an opinion dated the Closing Date covering
customary matters relating to the Agreement and the Merger, including
an opinion in form and substance satisfactory to Weatherford with
respect to the matters described in Section 2.2(a), (b), (c), (d) and
(k) (provided that the form of such opinion shall be agreed upon prior
to the filing of the Registration Statement with the Commission);
(g) Weatherford shall have received from Xxxxxx Xxxxxxxx LLP a
written opinion, in form and substance satisfactory to Weatherford,
dated as of the date that the Proxy Statement is first mailed to the
Stockholders of Christiana and Weatherford to the effect that (i) the
Merger will be treated for U.S. federal income tax purposes as a
reorganization within the meaning of Section 368(a)(1)(A) of the Code
by reason of Section 368(a)(2)(E) of the Code, (ii) Weatherford, Sub
and Christiana will each be a party to that reorganization within the
meaning of Section 368(b) of the Code and (iii) Weatherford, Sub and
Christiana shall not recognize any gain or loss for U.S. federal income
tax purposes as a result of the Merger
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(although Christiana will recognize gain or loss for U.S. federal
income tax purposes as a result of the Logistic Sale), and such opinion
shall be confirmed at the Closing;
(h) Weatherford shall have received from Xxxxxx Xxxxxxxx LLP a
letter, in form and substance satisfactory to Weatherford, dated as of
the Closing Date, to the effect that the Merger would not adversely
affect the ability of Weatherford to account for any prior or future
business combination as a pooling of interest;
(i) C2 shall have executed and delivered to Christiana and
Weatherford the Logistic Purchase Agreement and agreement among members
in form and substance, including schedules, acceptable to Weatherford;
(j) The Logistic Sale shall have been consummated;
(k) Christiana shall have delivered to Weatherford a pro forma
balance sheet after giving effect to the Logistic Sale, including a
full accrual for Taxes thereon without regard to any tax credits or tax
deductions that Christiana may have in connection with the exercise of
any stock options, reflecting Christiana Net Cash in an amount not less
than $13 million;
(l) Except as permitted by Section 3.1, all outstanding
Indebtedness (including guarantees thereof) of Christiana and its
Subsidiaries (other than Logistics) shall have been paid in full or
Christiana shall have been fully released therefrom;
(m) The assets of Christiana shall consist only of cash of
at least $13 million, at least 3,897,462 shares of Weatherford Common
Stock, certain tax benefits and 333.333 units of Logistic representing
one-third of the outstanding interests of Logistic; and
(n) There shall not be pending any litigation involving
Christiana or any of its subsidiaries, that Weatherford, in its sole
discretion, considers to be a material liability for which adequate
security has not been provided.
6.3 Additional Conditions to Obligations of Christiana. The obligation
of Christiana to effect the Merger is, at the option of Christiana, also subject
to the fulfillment at or prior to the Closing Date of the following conditions:
(a) The representations and warranties of Weatherford and Sub
contained in Section 2.1 shall be accurate as of the date of this
Agreement and (except to the extent such representations and warranties
speak specifically as of an earlier date) as of the Closing Date as
though such representations and warranties had been made at and as of
that time; all the terms, covenants and conditions of this Agreement to
be complied with and performed by Weatherford on or before the Closing
Date shall have been duly complied with and performed in all material
respects; and a certificate to the foregoing effect dated the Closing
Date and signed by the chief executive officer of Weatherford shall
have been delivered to Christiana;
(b) The Board of Directors of Christiana and C2 shall have
received from Prudential Securities Corporation, financial advisor to
Christiana and C2, a written opinion, satisfactory in form and
substance to the Board of Directors of Christiana and C2, to the effect
that from a financial point of view to the Christiana Shareholders the
Merger, which includes
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(i) the consideration to be received in the Merger and (ii) the
purchase price for Logistic is fair to the Christiana Shareholders,
which opinion shall have been confirmed in writing to such Board as of
a date reasonably proximate to the date the Proxy Statement is first
mailed to the stockholders of Christiana and Weatherford and not
subsequently withdrawn;
(c) Christiana and C2 shall have received from Fulbright &
Xxxxxxxx L.L.P. counsel to Weatherford, an opinion dated the Closing
Date covering customary matters relating to this Agreement and the
Merger, including an opinion in form and substance with respect to the
matters described in Section 2.1(a), (b)(iii), (c) and (d)(i), (ii) and
(iii);
(d) C2 and Christiana shall have received from Xxxxxx Xxxxxxxx
LLP, a written opinion, in form and substance satisfactory to
Christiana, dated as of the date that the Proxy Statement is first
mailed to stockholders of Christiana and Weatherford to the effect that
(i) the Merger will be treated for U.S. federal income tax purposes as
a reorganization within the meaning of Section 368(a)(1)(A) of the Code
by reason of Section 368(a)(2)(E) of the Code; (ii) Weatherford, Sub
and Christiana will each be a party to that reorganization within the
meaning of Section 368(b) of the Code, and (iii) Weatherford, Sub and
Christiana shall not recognize any gain or loss for U.S. federal income
tax purposes as a result of the Merger (although Christiana will
recognize gain or loss for U.S. federal income tax purposes as a result
of the Logistic Sale), and such opinion shall be confirmed at the
Closing; and
(e) The Logistic Sale under the Logistic Purchase Agreement
shall have occurred.
ARTICLE VII
MISCELLANEOUS
7.1 Termination. This Agreement may be terminated and the Merger and
the other transactions contemplated herein may be abandoned at any time prior to
the Effective Time, whether prior to or after approval by the stockholders of
Weatherford or the stockholders of Christiana:
(a) by mutual written consent of Weatherford and Xxxxxxxxxx;
(b) by either Weatherford or Christiana if (i) the Merger has
not been consummated on or before June 30, 1998 (provided that the
right to terminate this Agreement under this clause (i) shall not be
available to any party whose breach of any representation or warranty
or failure to fulfill any covenant or agreement under this Agreement
has been the cause of or resulted in the failure of the Merger to occur
on or before such date); (ii) any court of competent jurisdiction, or
some other governmental body or regulatory authority shall have issued
an order, decree or ruling or taken any other action restraining,
enjoining or otherwise prohibiting the Merger; (iii) the stockholders
of Christiana shall not approve the Logistic Sale or the Merger at the
Christiana stockholder meeting or at any adjournment thereof; (iv) the
stockholders of Weatherford shall not approve the Merger at the
Weatherford stockholder meeting or any adjournment thereof; or (v) in
the exercise of its good faith judgment as to its fiduciary duties to
its stockholders imposed by law, as advised by outside counsel, the
Board of Directors of Christiana or Weatherford determines that such
termination is appropriate in complying with its fiduciary obligations.
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(c) by Christiana if (i) Weatherford shall have failed to
comply in any material respect with any of the covenants or agreements
contained in this Agreement to be complied with or performed by
Weatherford or Sub at or prior to such date of termination (provided
such breach has not been cured within 30 days following receipt by
Weatherford of written notice from Christiana of such breach and is
existing at the time of termination of this Agreement); (ii) any
representation or warranty of Weatherford contained in this Agreement
shall not be true in all respects when made (provided such breach has
not been cured within 30 days following receipt by Weatherford of
written notice from Christiana of such breach and is existing at the
time of termination of this Agreement) or on and as of the Effective
Time as if made on and as of the Effective Time (except to the extent
it relates to a particular date), except for such failures to be so
true and correct which would not individually or in the aggregate,
reasonably be expected to have an Xxxxxxxxxxx XXX, assuming the
effectiveness of the Merger; or (iii) the Board of Directors of
Weatherford withdraws, modifies or changes its recommendation of this
Agreement or the Merger in a manner adverse to Christiana or shall have
resolved to do any of the foregoing.
(d) by Weatherford if (i) Christiana shall have failed to
comply in any material respect with any of the covenants or agreements
contained in this Agreement to be complied with or performed by it at
or prior to such date of termination (provided such breach has not been
cured within 30 days following receipt by Christiana of written notice
from Weatherford of such breach and is existing at the time of
termination of this Agreement; (ii) any representation or warranty of
Christiana contained in this Agreement shall not be true in all
respects when made (provided such breach has not been cured within 30
days following receipt by Christiana of written notice from Weatherford
of such breach and is existing at the time of termination of this
Agreement) or on and as of the Effective Time as if made on and as of
the Effective Time (except to the extent it relates to a particular
date), except for such failures to be so true and correct which would
not individually or in the aggregate, reasonably be expected to have a
Xxxxxxxxxx XXX assuming the effectiveness of the Merger or (iii) the
Board of Directors of Christiana withdraws, modifies or changes its
recommendation of this Agreement or the Merger in a manner adverse to
Weatherford or shall have resolved to do any of the foregoing.
7.2 Effect of Termination. In the event of termination of this
Agreement by either Weatherford or Christiana as provided in Section 7.1, this
Agreement shall forthwith become void and there shall be no liability or
obligation on the part of Weatherford, Sub or Christiana, except (i) with
respect to this Section 7.2, Section 5.6 and Section 7.13, and (ii) such
termination shall not relieve any party hereto for any intentional breach prior
to such termination by a party hereto of any of its representations or
warranties or of any of its covenants or agreements set forth in this Agreement.
7.3 Waiver and Amendment. Any provision of this Agreement may be waived
at any time by the party that is, or whose stockholders are, entitled to the
benefits thereof. This Agreement may not be amended or supplemented at any time,
except by an instrument in writing signed on behalf of each party hereto,
provided that after this Agreement has been approved and adopted by the
stockholders of Weatherford and Xxxxxxxxxx, this Agreement may be amended only
as may be permitted by applicable provisions of the DGCL and the WBCL. The
waiver by any party hereto of any condition or of a breach of another provision
of this Agreement shall not operate or be construed as a waiver of any other
condition or subsequent breach. The waiver by any party hereto
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of any of the conditions precedent to its obligations under this Agreement shall
not preclude it from seeking redress for breach of this Agreement other than
with respect to the condition so waived.
7.4 Nonsurvival of Representations and Warranties. Except for the
representations and warranties of C2 contained herein, which shall survive
without limitation, none of the representations and warranties in this Agreement
shall survive the Effective Time.
7.5 Public Statements. Christiana and Weatherford agree to consult with
each other prior to issuing any press release or otherwise making any public
statement with respect to the transactions contemplated hereby.
7.6 Assignment. This Agreement shall inure to the benefit of and will
be binding upon the parties hereto and their respective legal representatives,
successors and permitted assigns.
7.7 Notices. All notices, requests, demands, claims and other
communications which are required to be or may be given under this Agreement
shall be in writing and shall be deemed to have been duly given if (i) delivered
in Person or by courier, (ii) sent by telecopy or facsimile transmission, answer
back requested, or (iii) mailed, certified first class mail, postage prepaid,
return receipt requested, to the parties hereto at the following addresses:
if to Christiana:
Christiana Companies, Inc.
000 X. Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxx, Xxxxxxxxx 00000
Attn: Xxxxxxx X. Xxxxxxx
Facsimile: (000) 000-0000
with a copy to:
Xxxxx & Lardner
000 Xxxx Xxxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxx 00000
Attn: Xxxxxx X. Xxxxx, Xx.
Facsimile: (000) 000-0000
if to C2:
C2, Inc.
000 X. Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxx, Xxxxxxxxx 00000
Attn: Xxxxxxx X. Xxxxxxx
Facsimile: (000) 000-0000
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with a copy to:
Xxxxx & Xxxxxxx
000 Xxxx Xxxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxx 00000
Attn: Xxxxxx X. Xxxxx, Xx.
Facsimile: (000) 000-0000
if to Weatherford or Sub:
Xxxxxxxxxxx, Inc.
0 Xxxx Xxx Xxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Attn: Xxxxxx X. Xxxx
Facsimile: (000) 000-0000
with a copy to:
Fulbright & Xxxxxxxx, L.L.P.
0000 XxXxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000-0000
Attn: Xxxxxxx X. Xxxxxxx
Facsimile: (000) 000-0000
or to such other address as any party shall have furnished to the other by
notice given in accordance with this Section 7.7. Such notices shall be
effective, (i) if delivered in Person or by courier, upon actual receipt by the
intended recipient, (ii) if sent by telecopy or facsimile transmission, when the
answer back is received, or (iii) if mailed, upon the earlier of five days after
deposit in the mail and the date of delivery as shown by the return receipt
therefor.
7.8 Governing Law. All questions arising out of this Agreement and the
rights and obligations created herein, or its validity, existence,
interpretation, performance or breach shall be governed by the laws of the State
of Delaware, without regard to conflict of laws principles.
7.9 Arbitration. Any disputes, claims or controversies connected with,
arising out of, or related to, this Agreement and the rights and obligations
created herein, or the breach, validity, existence or termination hereof, shall
be settled by Arbitration to be conducted in accordance with the Commercial
Rules of Arbitration of the American Arbitration Association, except as such
Commercial Rules may be changed by this Section 7.9. The disputes, claims or
controversies shall be decided by three independent arbitrators (that is,
arbitrators having no substantial economic or other material relationship with
the parties), one to be appointed by Christiana, if prior to the Merger, or C2,
if after the Merger, and one to be appointed by Weatherford within fourteen days
following the submission of the claim to the parties hereto and the third to be
appointed by the two so appointed within five days thereafter. Should either
party refuse or neglect to join in the timely appointment of the arbitrators,
the other party shall be entitled to select both arbitrators. Should the two
arbitrators fail timely to appoint a third arbitrator, either party may apply to
the Chief Judge of the United States District Court for the Southern District of
Texas to make such appointment. The arbitrators shall have ninety days after the
selection of the third arbitrator within which to allow discovery, hear evidence
and issue their decision or award and shall in good faith attempt to comply
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with such time limits; provided, however, if two of the three arbitrators
believe additional time is necessary to reach a decision, they may notify the
parties and extend the time to reach a decision in thirty day increments, but in
no event to exceed an additional ninety days. Discovery of evidence shall be
conducted expeditiously by the parties, bearing in mind the parties desire to
limit discovery and to expedite the decision or award of the arbitrators at the
most reasonable cost and expense of the parties. Judgment upon an award rendered
pursuant to such Arbitration may be entered in any court having jurisdiction, 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 place of Arbitration shall
be Houston, Texas. The decision of the arbitrators, or a majority thereof, made
in writing, shall be final and binding upon the parties hereto as to the
questions submitted, and each party shall abide by such decision.
Notwithstanding the provisions of this Section 7.9, neither party shall be
prohibited from seeking injunctive relief pending the completion of any
arbitration. The costs and expenses of the arbitration proceeding, including the
fees of the arbitrators and all costs and expenses, including legal fees and
witness fees, incurred by the prevailing party, shall be borne by the losing
party.
Solely for purposes of injunctive relief, orders in aid of arbitration
and entry of the arbitrators' award:
(a) each of the parties hereto irrevocably consents to the
non-exclusive jurisdiction of, and venue in, any state court located in
Xxxxxx County, Texas or any federal court sitting in the Southern
District of Texas in any suit, action or proceeding seeking injunctive
relief, orders in aid of arbitration, or entry of an arbitral award
arising out of or relating to this Agreement or any of the other
agreements contemplated hereby and any other court in which a matter
that may result in a claim for indemnification hereunder by an
Weatherford Indemnified Party (as defined in the Logistic Purchase
Agreement) may be brought with respect to any claim for indemnification
by an Weatherford Indemnified Party;
(b) each of the parties hereto waives, to the fullest extent
permitted by law, any objection that it may now or hereafter have to
the laying of venue of any suit, action or proceeding seeking
injunctive relief, orders in aid of arbitration or entry of an arbitral
award arising out of or relating to this Agreement or any of the other
agreements contemplated hereby brought in any state court located in
Xxxxxx County, Texas or any federal court sitting in the Southern
District of Texas or any other court in which a matter that may result
in a claim hereunder or for indemnification under the Logistic Purchase
Agreement by an Weatherford Indemnified Party may be brought with
respect to any claim for indemnification by an Weatherford Indemnified
Party, and further irrevocably waive any claim that any such suit,
action or proceeding brought in any such court has been brought in an
inconvenient forum;
(c) each of the parties hereto irrevocably designates,
appoints and empowers CT Corporation System, Inc. and any successor
thereto as its designee, appointee and agent to receive, accept and
acknowledge for and on its behalf, and in respect of its property,
service of any and all legal process, summons, notices and documents
which may be served in any suit, action or proceeding arising out of or
relating to this Agreement or any of the other agreements contemplated
hereby for the purposes of injunctive relief, orders in aid of
arbitration and entry of an arbitral award.
7.10 Severability. If any term, provision, covenant or restriction of
this Agreement is held by a court of competent jurisdiction to be invalid, void
or unenforceable, the remainder of the terms,
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provision, covenants and restrictions of this Agreement shall continue in full
force and effect and shall in no way be affected, impaired or invalidated.
7.11 Counterparts. This Agreement may be executed in counterparts, each
of which shall be an original, but all of which together shall constitute one
and the same agreement.
7.12 Headings. The Section headings herein are for convenience only and
shall not affect the construction hereof.
7.13 Confidentiality Agreement. The Confidentiality Agreements entered
into between Weatherford and Christiana on December 10, 1997 (the
"Confidentiality Agreements") are hereby incorporated by reference herein and
made a part hereof.
7.14 Entire Agreement: Third Party Beneficiaries. This Agreement, the
Other Agreements and the Confidentiality Agreements constitute the entire
agreement and supersede all other prior agreements and understandings, both oral
and written, among the parties or any of them, with respect to the subject
matter hereof and neither this nor any document delivered in connection with
this Agreement confers upon any Person not a party hereto any rights or remedies
hereunder.
7.15 Disclosure Letters.
(a) The Christiana Disclosure Letter, executed by Christiana
as of the date hereof, and delivered to Weatherford on the date hereof,
contains all disclosure required to be made by Christiana under the
various terms and provisions of this Agreement. Each item of disclosure
set forth in the Christiana Disclosure Letter specifically refers to
the Article and Section of the Agreement to which such disclosure
responds, and shall not be deemed to be disclosed with respect to any
other Article or Section of the Agreement.
(b) The Weatherford Disclosure Letter, executed by Weatherford
as of the date hereof, and delivered to Christiana on the date hereof,
contains all disclosure required to be made by Weatherford under the
various terms and provisions of this Agreement. Each item of disclosure
set forth in the Weatherford Disclosure Letter specifically refers to
the Article and Section of the Agreement to which such disclosure
responds, and shall not be deemed to be disclosed with respect to any
other Article or Section of the Agreement.
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IN WITNESS WHEREOF, each of the parties caused this Agreement to be
executed on its behalf by its officers thereunto duly authorized, all as of the
date first above written.
Xxxxxxxxxxx, INC.
By: /s/ XXXXXXX X. DUROC-XXXXXX
Name: Xxxxxxx X. Duroc-Xxxxxx
Title: President
CHRISTIANA ACQUISITION, INC.
By: /s/ XXXXXXX X. DUROC-XXXXXX
Name: Xxxxxxx X. Duroc-Xxxxxx
Title: President
CHRISTIANA COMPANIES, INC.
By: /s/ XXXXXXX X. XXXXXXX
Name: Xxxxxxx X. Xxxxxxx
Title: President
C2, INC.
By: /s/ XXXXXXX X. XXXXXXX
Name: Xxxxxxx X. Xxxxxxx
Title: President
-38-
WEATHERFORD DISCLOSURE LETTER
Section 2.1(g) - Tax Matters
