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EXHIBIT 2.19
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
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TABLE OF CONTENTS
ARTICLE I
THE MERGER.................................................. A-3
1.1 THE MERGER.................................................. A-3
1.2 CLOSING DATE................................................ A-4
1.3 CONSUMMATION OF THE MERGER.................................. A-4
1.4 EFFECTS OF THE MERGER....................................... A-4
1.5 ARTICLES OF INCORPORATION; BYLAWS........................... A-4
1.6 DIRECTORS AND OFFICERS...................................... A-4
1.7 CONVERSION OF SECURITIES.................................... A-4
1.8 EXCHANGE OF CERTIFICATES.................................... A-5
(a) Exchange Agent.......................................... A-5
(b) Payment of Merger Consideration......................... A-5
(c) Retention of Cash Pending Post Closing Audit............ A-5
(d) [Intentionally Omitted]................................. A-5
(e) Exchange Procedure...................................... A-5
(f) Distributions with Respect to Unexchanged Christiana
Shares...................................................... A-6
(g) No Further Ownership Rights in Christiana Shares........ A-6
(h) Escheat................................................. A-6
1.9 TAKING OF NECESSARY ACTION; FURTHER ACTION.................. A-6
ARTICLE II
REPRESENTATIONS AND WARRANTIES.............................. A-7
2.1 REPRESENTATIONS AND WARRANTIES OF WEATHERFORD AND SUB....... A-7
(a) Organization and Compliance with Law.................... A-7
(b) Capitalization.......................................... A-7
(c) Authorization and Validity of Agreement................. A-7
(d) No Approvals or Notices Required; No Conflict........... A-8
(e) Commission Filings; Financial Statements................ A-8
(f) Absence of Certain Charges and Events................... A-8
(g) Tax Matters............................................. A-8
(h) Voting Requirements..................................... A-9
(i) Brokers................................................. A-9
(j) Information Supplied.................................... A-9
2.2 REPRESENTATIONS AND WARRANTIES OF CHRISTIANA AND C2......... A-9
(a) Organization............................................ A-9
(b) Capitalization.......................................... A-10
(c) Authorization and Validity of Agreement................. A-11
(d) No Approvals or Notices Required; No Conflict with
Instruments
to which Christiana is a Party.............................. A-11
(e) Commission Filings; Financial Statements................ A-12
(f) Conduct of Business in the Ordinary Course; Absence of
Certain Changes and Events.................................. A-12
(g) Litigation.............................................. A-13
(h) Employee Benefit Plans.................................. A-13
(i) Taxes................................................... A-14
(j) Environmental Matters................................... A-15
(k) Investment Company...................................... A-16
(l) Severance Payments...................................... A-16
(m) Voting Requirements..................................... A-16
(n) Brokers................................................. A-16
(o) Assets and Liabilities at Closing....................... A-16
(p) Compliance with Laws.................................... A-17
(q) Contracts............................................... A-17
(r) Title to Property....................................... X-00
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(s) Insurance Policies...................................... A-18
(t) Loans................................................... A-18
(u) No Fraudulent Transfer.................................. A-18
(v) Information Supplied.................................... A-19
ARTICLE III
COVENANTS OF CHRISTIANA..................................... A-19
3.1 CONDUCT OF BUSINESS BY CHRISTIANA PENDING THE MERGER........ A-19
3.2 CASH REQUIREMENTS........................................... A-21
3.3 AFFILIATES' AGREEMENTS...................................... A-22
3.4 WEATHERFORD COMMON STOCK PURCHASES.......................... A-22
ARTICLE IV
COVENANTS OF WEATHERFORD PRIOR TO THE EFFECTIVE TIME........ A-22
4.1 RESERVATION OF WEATHERFORD STOCK............................ A-22
4.2 CONDUCT OF WEATHERFORD PENDING THE MERGER................... A-22
4.3 STOCK EXCHANGE LISTING...................................... A-22
ARTICLE V
ADDITIONAL AGREEMENTS....................................... A-22
5.1 JOINT PROXY STATEMENT/PROSPECTUS; REGISTRATION STATEMENT.... A-22
5.2 ACCOUNTANTS LETTER.......................................... A-23
5.3 MEETINGS OF STOCKHOLDERS.................................... A-23
5.4 FILINGS; CONSENTS; REASONABLE EFFORTS....................... A-23
5.5 NOTIFICATION OF CERTAIN MATTERS............................. A-24
5.6 EXPENSES.................................................... A-24
5.7 CHRISTIANA'S EMPLOYEE BENEFITS.............................. A-24
5.8 LIQUIDATION OR MERGER OF CHRISTIANA......................... A-24
ARTICLE VI
CONDITIONS.................................................. A-25
CONDITIONS TO OBLIGATION OF EACH PARTY TO EFFECT THE
6.1 MERGER...................................................... A-25
6.2 ADDITIONAL CONDITIONS TO OBLIGATIONS OF WEATHERFORD......... A-25
6.3 ADDITIONAL CONDITIONS TO OBLIGATIONS OF CHRISTIANA.......... A-27
ARTICLE VII
MISCELLANEOUS............................................... A-27
7.1 TERMINATION................................................. A-27
7.2 EFFECT OF TERMINATION....................................... A-28
7.3 WAIVER AND AMENDMENT........................................ A-28
7.4 NONSURVIVAL OF REPRESENTATIONS AND WARRANTIES............... A-28
7.5 PUBLIC STATEMENTS........................................... A-29
7.6 ASSIGNMENT.................................................. A-29
7.7 NOTICES..................................................... A-29
7.8 GOVERNING LAW............................................... A-30
7.9 ARBITRATION................................................. A-30
7.10 SEVERABILITY................................................ A-31
7.11 COUNTERPARTS................................................ A-31
7.12 HEADINGS.................................................... A-31
7.13 CONFIDENTIALITY AGREEMENT................................... A-31
7.14 ENTIRE AGREEMENT: THIRD PARTY BENEFICIARIES................. A-31
7.15 DISCLOSURE LETTERS.......................................... A-31
LIST OF EXHIBITS
Exhibit A -- Logistic Purchase Agreement
Exhibit B -- Amended and Restated Articles 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 of 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:
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.
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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 Institutions 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.
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 Section 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.
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(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 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 "Cash Consideration Per
Share" is based on 5,149,330 shares of Christiana Common Stock being issued
and outstanding 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 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.
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
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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 "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.
(h) Escheat. None of Weatherford, Sub, Xxxxxxxxxx, 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.
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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 (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
Weatherford Common Stock issued and outstanding. As of July 10, 1998,
(i) 5,031,250 shares of Weatherford 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 Weatherford Common Stock were reserved for issuance
pursuant to pending or proposed acquisitions, (iii) 1,577,410 shares of
Weatherford Common Stock were remaining to be exchanged for shares of
stock in connection with various completed acquisitions and (iv)
3,269,376 shares of Weatherford Common Stock were reserved for issuance
pursuant to Xxxxxxxxxxx'x employee and director benefit plans and
arrangements, of which 1,897,704 shares of Weatherford Common Stock were
reserved for issuance upon exercise of outstanding options. At July 10,
1998, there were no shares of Weatherford Preferred Stock issued or
outstanding. No holder of Weatherford 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
Weatherford.
(iii) Each share of Weatherford 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 Weatherford 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 Weatherford 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 Weatherford and Sub and
is the valid and binding obligation of Weatherford and Sub, enforceable
against Weatherford and Sub in accordance with its terms.
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(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 of 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 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. Weatherford 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 Weatherford 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". Weatherford 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 Weatherford 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
Weatherford 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 Weatherford, except where the failure to file, pay or
provide for would not have a Xxxxxxxxxxx XXX.
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(ii) Weatherford 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.
(iii) Weatherford is not an investment company as defined in
sec.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 Weatherford 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 Weatherford necessary to
approve this Agreement and the Merger.
(i) Brokers. Except for fees and expenses payable by Weatherford to
Xxxxxx Xxxxxxx & Co. Incorporated, no broker, investment banker, or other
Person acting on behalf of Weatherford 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 Weatherford 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 (as
defined in Section 2.2(d)) 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
Weatherford 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 Weatherford on the date hereof (the "Christiana Disclosure
Letter"), each of Christiana,
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Logistic and C2 is duly 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 Weatherford 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 sec. 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 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 Weatherford 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
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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,
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,
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together with any amendments thereto, are sometimes collectively referred
to as the "Christiana Commission Filings." Christiana has heretofore
delivered to Weatherford 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 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,
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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.
(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 Weatherford.
(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);
(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;
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(X) Xx xxx, 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 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
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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 sec.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.
(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
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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 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);
(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
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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 "Xxxxxxxxxx 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 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.
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(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 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.
(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,
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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 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;
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(x) Xxxxxxxxxx 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 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 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;
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(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 Logistic 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.
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.
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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 Xxxxxxxxxx,
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
additional $5 million of Xxxxxxxxxxx Common Stock (the "$5 Million Purchase").
Notwithstanding the foregoing, Christiana shall not be required to make any
purchase unless such purchase, 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 purchase any other Xxxxxxxxxxx
Common Stock. All such purchases shall be made in accordance with applicable
securities laws, including Regulation M and Rule 10b-18 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.
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 Weatherford 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
Xxxxxxxxxx shall prepare and file with the Commission preliminary proxy
materials that shall constitute the Proxy Statement of Xxxxxxxxxxx and
Christiana 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
Christiana 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
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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 Agreement and the Logistic
Sale (the "Christiana Shareholders 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.
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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 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 Xxxxxxxxxxx Common Stock under the Securities Act to
be issued in the Merger, (ii) the registration and qualification of the
Xxxxxxxxxxx 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. Xxxxxxxxxxx agrees that for a
period of two years following the Effective Date it shall not cause or permit
Christiana to (i) liquidate or dissolve, (ii) sell or transfer any shares of
Xxxxxxxxxxx Common Stock held by Christiana or (iii) merge Christiana into any
other entity unless Xxxxxxxxxxx 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 Xxxxxxxxxxx or its subsidiaries (other than Christiana) or
(iv) a sale or disposition of any assets of Xxxxxxxxxxx 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 a
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 Date, 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 a Xxxxxxxxxxx XXX.
6.2 ADDITIONAL CONDITIONS TO OBLIGATIONS OF XXXXXXXXXXX. The obligation of
Xxxxxxxxxxx to effect the Merger is, at the option of Xxxxxxxxxxx, 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 Xxxxxxxxxxx;
(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
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Xxxxxxxxxxx shall have received a certificate signed by the president of
Christiana dated the Closing Date to such effect;
(c) The Board of Directors of Xxxxxxxxxxx shall have received from
Xxxxxx Xxxxxxx & Co. Incorporated, financial advisor to Xxxxxxxxxxx, a
written opinion, satisfactory in form and substance to the Board of
Directors of Xxxxxxxxxxx, to the effect that consideration to be paid by
Xxxxxxxxxxx in the Merger is fair to Xxxxxxxxxxx from a financial point of
view, which opinion shall not subsequently be 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 to
Xxxxxxxxxxx of, the Christiana affiliates' agreements pursuant to Section
3.3;
(f) Xxxxxxxxxxx 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 Xxxxxxxxxxx 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) Xxxxxxxxxxx shall have received from Xxxxxx Xxxxxxxx LLP a written
opinion, in form and substance satisfactory to Xxxxxxxxxxx, dated as of the
date that the Proxy Statement is first mailed to the Stockholders of
Christiana and Xxxxxxxxxxx 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) Xxxxxxxxxxx, Sub and Christiana will each be
a party to that reorganization within the meaning of Section 368(b) of the
Code and (iii) Xxxxxxxxxxx, 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;
(h) Xxxxxxxxxxx shall have received from Xxxxxx Xxxxxxxx LLP a letter,
in form and substance satisfactory to Xxxxxxxxxxx, dated as of the Closing
Date, to the effect that the Merger would not adversely affect the ability
of Xxxxxxxxxxx to account for any prior or future business combination as a
pooling of interest;
(i) C2 shall have executed and delivered to Christiana and Xxxxxxxxxxx
the Logistic Purchase Agreement and agreement among members in form and
substance, including schedules, acceptable to Xxxxxxxxxxx;
(j) The Logistic Sale shall have been consummated;
(k) Christiana shall have delivered to Xxxxxxxxxxx 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 Xxxxxxxxxxx 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 Xxxxxxxxxxx, in its sole discretion,
considers to be a material liability for which adequate security has not
been provided.
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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 Xxxxxxxxxxx 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 Xxxxxxxxxxx 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 Xxxxxxxxxxx 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 (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 not
subsequently be withdrawn;
(c) Christiana and C2 shall have received from Fulbright & Xxxxxxxx
L.L.P. counsel to Xxxxxxxxxxx, 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 Xxxxxxxxxxx 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 January 31, 1999 (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
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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.
(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 a 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 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.
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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
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 International, 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
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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 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 a Weatherford Indemnified Party (as defined in
the Logistic Purchase Agreement) may be brought with respect to any claim
for indemnification by a 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 a Weatherford
Indemnified Party may be brought with respect to any claim for
indemnification by a
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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, 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 INTERNATIONAL, INC.
By: /s/ XXXXXX X. XXXX
----------------------------------
Name: Xxxxxx X. Xxxx
---------------------------------
Title: Senior Vice President,
General Counsel and
Secretary
---------------------------------
CHRISTIANA ACQUISITION, INC.
By: /s/ XXXXXX X. XXXX
----------------------------------
Name: Xxxxxx X. Xxxx
---------------------------------
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: Chairman
---------------------------------
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