1
EXHIBIT 2.18
AMENDMENT NO. 1 TO AGREEMENT AND PLAN OF MERGER
AND LOGISTIC PURCHASE AGREEMENT
THIS AMENDMENT NO. 1 (the "Amendment") is made and entered
into as of May 26, 1998, by and among the undersigned parties.
WHEREAS, EVI, Inc., a Delaware corporation ("EVI"), Christiana
Acquisition, Inc., a Wisconsin corporation and wholly owned subsidiary of EVI
("Sub"), Christiana Companies, Inc., a Wisconsin corporation ("Christiana"), C2,
Inc., a Wisconsin corporation ("C2"), and Total Logistic Control, LLC, a
Delaware limited liability company ("TLC"), entered into an Agreement and Plan
of Merger dated as of December 12, 1997 (the "Merger Agreement");
WHEREAS, EVI, Christiana, C2 and TLC entered in an Agreement,
dated December 12, 1997 (the "Logistic Purchase Agreement"); and
WHEREAS, the parties now desire to amend the Merger Agreement
and the Logistic Purchase Agreement as provided for herein.
NOW, THEREFORE, in consideration of the premises and of the
mutual representations, warranties and covenants herein contained, the parties
hereby agree as follows:
1. Amendment to the Merger Agreement.
(a) The third sentence of Section 1.7(f) shall be and hereby
is amended to read as follows:
"The Contingent Liability Period shall mean the period from
the Effective Date through the earlier of: (a) fifth anniversary of
Effective Date or (b) the date that Christiana receives consideration
with a fair market value of $20,000,000 or more for its one-third
interest in TLC; provided, however, that if there is any pending or
threatened claim, demand or suit or existing matter for which EVI has
reasonably determined that an EVI Indemnified Party (as defined in the
Logistic Purchase Agreement) will be entitled to indemnification under
Section 6.1(a) of the Logistic Purchase Agreement, the Contingent
Liability Period shall be extended until such time that such claim,
demand, suit or matter is wholly resolved, paid and not subject to
appeal or further claims."
(b) The following phrase in the first sentence of Section
1.8(d) "provided, however, that if on the fifth anniversary of the
Effective Date there is any pending or threatened claim, demand or
suit," shall be amended to read as follows:
-1-
2
"provided, however, that if on the date the Contingent
Liability Period would otherwise terminate, there is any pending or
threatened claim, demand or suit"
(c) Section 7.1(b) shall be and hereby is amended by changing
the date "June 30, 1998" to "October 31, 1998."
(d) The following shall be and hereby is added to Article IV:
"4.4 Publication of Financial Results. In the event that the
proposed merger (the "Xxxxxxxxxxx Merger") between EVI and Xxxxxxxxxxx
Enterra, Inc., a Delaware corporation, does not close prior to June 1,
1998, EVI shall publish, as soon as reasonably practicable following
the closing of the Xxxxxxxxxxx Merger, financial results covering 30
days of post-Weatherford Merger combined operations of EVI and
Weatherford; provided, however, that EVI shall not be required to
publish financial results covering any period other than a period
ending on the last business day of a calendar month."
2. Amendment to the Logistic Purchase Agreement.
(a) Section 5.3 shall be and hereby is replaced in its
entirety with the following:
"5.3 Participation Rights.
(a) If (x) there shall be proposed a C2 Change of
Control or (y) C2 shall propose to transfer or sell all of its
interest in TLC to an unrelated third party (a "Third Party")
in one or more transactions (a "TLC Disposition"), Christiana
shall have the right, but not the obligation, to participate
(a "Tag Along Right") in such transaction as follows:
(i) In the case of a C2 Change of Control,
Christiana shall have a right to sell its Membership
Units to C2 and Logistic as determined as set forth
below for cash at the fair market value of such
Membership Units as may be agreed to by Christiana
and C2 or, in the absence of such agreement, as
determined by appraisal, as set forth below; and
(ii) In the case of a TLC Disposition,
Christiana shall have the right to sell its
Membership Units to the proposed purchaser of C2's
Membership Units for the same equivalent
consideration per equivalent unit in TLC, in cash,
and otherwise on the same terms as C2 sells or
transfers its interests in TLC.
The purchasing entity in the case of a C2 Change of
Control shall be determined by C2 and Logistic; provided,
however, that each shall be
-2-
3
responsible for the purchase in the event of a default by the
selected purchasing entity.
If circumstances occur which give rise to the Tag
Along Right, then C2 shall give written notice ("Tag Along
Notice") to Christiana providing a summary of the terms of the
proposed transaction and advising Christiana of its Tag Along
Right. The Tag Along Notice shall be required to be
accompanied by the offer to purchase required by this Section
5.3 by (x) the proposed purchasing entity in the case of a C2
Change of Control and (y) the proposed purchaser in the case
of a proposed TLC Disposition. Christiana may exercise its Tag
Along Right by delivery of written notice to C2 within fifteen
(15) days of its receipt of the Tag Along Notice. If
Christiana gives written notice indicating that it wishes to
exercise its Tag Along Right,
(1) In the case of a C2 Change of Control,
Christiana shall be obligated to sell its Membership
Units to C2 or TLC, as the case may be, and C2 and
TLC shall be obligated to purchase for cash at the
fair market value of such Membership Units as may be
agreed to by Christiana and C2 or, in the absence of
such agreement, as determined by a mutually
acceptable Third Party appraiser contemporaneous with
the closing of the C2 Change of Control; provided
that if the parties cannot agree on an appraiser,
each shall appoint its own appraiser and those
appraisers will appoint the Third Party appraiser;
and, provided, further, that the final decision of
the appraisers shall be as agreed by two of the three
appraisers; and
(2) In the case of a TLC Disposition,
Christiana shall be obligated to sell its Membership
Units, and the proposed purchaser shall be obligated
to purchase, for the same equivalent consideration
per equivalent unit in TLC and otherwise on the same
terms as C2 sells or transfers its interests in TLC
with the sale to occur on or prior to the closing of
the TLC Disposition; provided, however, that
Christiana shall receive its equivalent consideration
per equivalent unit in TLC in cash.
No transaction which would result in a C2 Change of
Control may be effected unless such transaction is effected in
full compliance with the terms of this Section 5.3.
(b) For the purposes of this Section 5.3, a "C2
Change of Control" shall be defined to be (x) a transfer,
conveyance or other disposition of shares of C2 stock by a
member of the Lubar Family, (y) the issuance by C2 of any
additional shares of C2 stock or (z) a merger, consolidation,
conversion or share exchange or other similar transaction
involving C2, if, after giving effect to such transaction
described in (x), (y) or (z), the Lubar Family shall cease to
beneficially own (defined to mean both the right to vote and
dispose of the full
-3-
4
economic interests in the shares) at least 25% of all of the
voting and ownership interests in C2 or the resulting entity.
(c) For the purposes of this Section 5.3, the "Lubar
Family" shall be defined to be Xxxxxxx X. Xxxxx, Xxxx X.
Xxxxx, Xxxxx X. Xxxxx, Xxxxxxxx X. Xxxxxxx, Xxxxx X. Solvang,
their spouses, their children, trusts for the benefit of any
of the foregoing and the Lubar Family Foundation."
(b) The second sentence of Section 6(a) of the First Amended
and Restated Operating Agreement attached to the Logistic Purchase
Agreement shall be amended to read as follows: "The initial Board of
Managers shall consist of six (6) Managers."
(c) The second sentence of Section 6(r) of the First Amended
and Restated Operating Agreement shall be and hereby is amended to
change "Lubar & Co. Incorporated" to "C2, Inc."
3. All other terms and conditions of the aforementioned
agreement shall remain in full force and effect.
Dated this 26th day of May, 1998.
EVI, INC.
By /s/ Xxxxx X. Xxxxx
-----------------------------------
Name Xxxxx X. Xxxxx
---------------------------------
Title Senior Vice President and
Chief Financial Officer
-------------------------------
CHRISTIANA ACQUISITION, INC.
By /s/ Xxxxx X. Xxxxx
-----------------------------------
Name Xxxxx X. Xxxxx
---------------------------------
Title Vice President
-------------------------------
CHRISTIANA COMPANIES, INC.
By /s/ Xxxxxxx X. Xxxxxxx
-----------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: President
-4-
5
C2, INC.
By /s/ Xxxxxxx X. Xxxxxxx
-----------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Chairman
TOTAL LOGISTIC CONTROL, LLC
By /s/ Xxxxxxx X. Xxxxxxx
-----------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
-5-
