1
EXHIBIT 2.2
2
AGREEMENT
THIS AGREEMENT ("Agreement") made as of this 12th day of
December, 1997 by and among EVI, INC., a Delaware corporation ("EVI"), TOTAL
LOGISTIC CONTROL, LLC, a Delaware limited liability company ("TLC"), CHRISTIANA
COMPANIES, INC., a Wisconsin corporation ("Christiana") and C2, INC., a
Wisconsin corporation ("C2").
W I T N E S S E T H :
WHEREAS, EVI, Christiana Acquisition, Inc., a Wisconsin
corporation ("Sub"), Christiana and C2 have entered into an Agreement and Plan
of Merger dated December 12, 1997 (the "Merger Agreement") pursuant to which
Sub, a wholly owned subsidiary of EVI, will merge with and into Christiana and
thereby Christiana will become a wholly owned subsidiary of EVI (the "Merger")
WHEREAS, as a condition to the Merger, Christiana will sell
666.667 Membership Units (as defined in Section 1.16 hereof) of TLC to C2
pursuant to the terms and conditions hereinafter set forth (the "Logistic
Sale").
NOW, THEREFORE, in consideration of the mutual covenants of the
parties herein and the mutual benefits derived from this Agreement
("Agreement"), the parties, intending to be legally bound, hereby agree as
follows:
1. Definitions.
1.1 Affiliate. Affiliate means, as to the person specified,
any person controlling, controlled by or under common control with such
person, with the concept of control in such context meaning the
possession, directly or indirectly, of the power to direct or cause the
direction of the management and policies of another, whether through the
ownership of voting securities, by contract or otherwise.
1.2 Assumed Liabilities. Assumed Liabilities means any and
all Liabilities and Environmental Liabilities (except for the Retained
Liabilities) to which Christiana, EVI or a Christiana Company may now or
at any time in the future become subject (whether directly or
indirectly, including by reason of Christiana or a Christiana Company
owning, controlling or operating any business or assets of any Person
(including any current or past Affiliate)), resulting from, arising out
of or relating to (i) any Christiana Company (other than TLC), (ii) the
business, operations or assets of Christiana or any Christiana Company
on or prior to the Effective Date, (iii) any Christiana Taxes for
periods ending on or before the Effective Date (except Christiana Taxes
to be expressly retained by Christiana pursuant to the Merger
Agreement), (iv) any obligation, matter, fact, circumstance or action or
omission by any Person in any way
3
relating to or arising from the business, operations or assets of
Christiana or a Christiana Company that existed on or prior to the
Effective Date; (v) any product or service provided by Christiana or any
Christiana Company prior to the Effective Date, (vi) the Merger, the
Logistic Sale or any of the other transactions contemplated hereby,
(vii) previously conducted operations of Christiana or any Christiana
Company and (viii) C2's interest in TLC. The term "Assumed Liabilities"
shall include, without limitation, the following Liabilities (other than
Retained Liabilities):
(a) Any and all Liabilities and Environmental Liabilities
resulting from, arising out of or relating to (i) the
assets, activities, operations, current or former
facilities, actions or omissions of Christiana or any of
its officers, directors, employees, independent
contractors or agents occurring on or before the Effective
Date, (ii) the assets, activities, operations, current or
former facilities, actions or omissions of any Christiana
Company or any of its officers, directors, employees,
independent contractors or agents, (iii) any product
liability claim, recall, replacement, returns or customer
allowances of or relating to Christiana or any Christiana
Company, or (iv) any contract or permit of Christiana or
any Christiana Company;
(b) Any and all accounts and notes payable of Christiana or
any Christiana Company, excluding accounts payable which
have been accounted for in the calculation of Christiana
Net Cash set forth in the Merger Agreement;
(c) Any and all Liabilities relating to Christiana or any
Christiana Company employee benefit plans;
(d) Any and all Liabilities and Environmental Liabilities on
behalf of or which arise from or relate to active
employees, or retired and inactive employees, of
Christiana or any Christiana Company, including, without
limitation, (i) liability for any salaries, wages, tax
equalization payments, vacation pay, sick leave, personal
leave, severance pay, wrongful dismissal or discrimination
claims; (ii) liability for or under any employee benefit
plan, policy or arrangement, including, without
limitation, retirement, pension, medical, dental, profit
sharing, unemployment, supplemental unemployment or
disability plan policy or arrangement; (iii) liability for
any payroll taxes, social security or similar taxes or
withholding; (iv) liability arising from claims or
litigation; and (v) liability arising from any injury,
death, loss, disability, occupational disease or claims
under any worker's compensation laws;
-2-
4
(e) Any and all Liabilities and Environmental Liabilities
resulting from, arising out, relating to or occurring on
the Properties, including those properties listed on
Schedule 1.2 hereof, the operations on any of the
foregoing, and any off-site Environmental Liabilities
related to any of the foregoing, including without
limitation, those under any indemnification agreement or
obligation of Christiana or any Christiana Company and any
documents relating thereto;
(f) Any and all Liabilities of TLC or any of its subsidiaries
with respect to transactions or events occurring or
existing on or prior to the Effective Date;
(g) Any and all litigation and claims for Liabilities of
Christiana or any Christiana Company existing as of the
Effective Date;
(h) Any and all Liabilities for Christiana Taxes, arising out
of, or related to, Christiana for taxable periods on or
before the Effective Date (except such Christiana Taxes
expressly retained by Christiana pursuant to the Merger
Agreement);
(i) Any misrepresentation or incorrect representation or
warranty of Christiana under the Merger Agreement without
regard to any materiality or knowledge qualification; and
(j) Any and all legal, accounting, consulting and expert fees
and expenses incurred after the date hereof in
investigating, preparing, defending, settling or
discharging any claim or action arising under, out of or
in connection with any of the Assumed Liabilities other
than those associated with EVI's counsel's evaluation of
the Merger and the Logistic sale.
1.3 Business Day. Business Day means a day on which national
banks are generally open for the transaction of business in Houston,
Texas.
1.4 CERCLA. CERCLA means the Comprehensive Environmental
Response, Compensation, and Liability Act, 42 U.S.C. Section 9601, et
seq.
1.5 Christiana. Christiana, for purposes of the assumption
indemnification provisions of this Agreement includes Christiana
Companies, Inc. and any and all predecessors thereto, whether by merger,
purchase or acquisition of assets or otherwise, and any and all
predecessors to any such entities.
1.6 Circumstance. Circumstance has the meaning specified in
Section 6.2 hereof.
-3-
5
1.7 Effective Date. Effective Date means the time and date the
Merger is made effective.
1.8 Environmental Conditions. Environmental Conditions means
any pollution, contamination, degradation, damage or injury caused by,
related to, arising form or in connection with the generation, handling,
use, treatment, storage, transportation, disposal, discharge, release or
emission of any Waste Materials.
1.9 Environmental Law or Environmental Laws. Environmental
Law or Environmental Laws means all laws, rules, regulations, statutes,
ordinances, decrees or orders of any governmental entity now or at any
time in the future in effect relating to (i) the control of any
potential pollutant or protection of the air, water or land, (ii) solid,
gaseous or liquid waste generation, handling, treatment, storage,
disposal or transportation, and (iii) exposure to hazardous, toxic or
other substances alleged to be harmful. The term "Environmental Law" or
"Environmental Laws" includes, without limitation, (1) the terms and
conditions of any license, permit, approval or other authorization by
any governmental entity and (2) judicial, administrative or other
regulatory decrees, judgments and orders of any governmental entity.
The term "Environmental Law" or "Environmental Laws" includes, but is
not limited to the following statutes and the regulations promulgated
thereunder: the Clean Air Act, 42 U.S.C. Section 7401 et seq., The
Clean Water Act, 33 U.S.C. Section 1251 et seq., the Resource
Conservation Recovery Act, 42 U.S.C. Section 6901 et seq., the
Superfund Amendments and Reauthorization Act, 42 U.S.C. Section 11011
et seq., the Toxic Substances Control Act, 15 U.S.C. Section 2601 et
seq., the Water Pollution Control Act, 33 U.S.C. Section 1251, et seq.,
the Safe Drinking Water Act, 42 U.S.C. Section 300f et seq., CERCLA and
any state, county or local regulations similar thereto.
1.10 Environmental Liabilities. Environmental Liabilities
means any and all liabilities, responsibilities, claims, suits, losses,
costs (including remediation, removal, response, abatement, clean-up,
investigative or monitoring costs and any other related costs and
expenses), other causes of action recognized now or at any later time,
damages, settlements, expenses, charges, assessments, liens, penalties,
fines, pre-judgment and post-judgment interest, attorney fees and other
legal fees (i) pursuant to any agreement, order, notice, requirement,
responsibility or directive (including directives embodied in
Environmental Laws), injunction, judgment or similar documents
(including settlements) arising out of or in connection with any
Environmental Laws, or (ii) pursuant to any claim by a governmental
entity or other person or entity for personal injury, property damage,
damage to natural resources, remediation or similar costs or expenses
incurred or asserted by such entity or person pursuant to common law or
statute.
1.11 EVI Indemnified Parties. EVI Indemnified Parties shall
have the meaning set forth in Section 6.1(a) hereof.
-4-
6
1.12 Christiana Company. Christiana Company means any
corporation, partnership, limited liability company, association or
other entity, of which Christiana or any Christiana Company now or at
any time in the past owned, directly or indirectly, an ownership
interest in (whether or not such ownership interest constituted control
of the entity and whether or not such interest represented a passive or
active investment), including those companies named on Schedule 1.12
hereto.
1.13 Christiana Taxes. Christiana Taxes means any and all
taxes (other than EVI Related Taxes as defined in the Merger Agreement)
to which Christiana or any Christiana Company may be obligated relating
to or arising from (i) the current or past operations or assets of
Christiana or any Christiana Company through the Effective Date, (ii)
the Logistic Sale, (iii) the Merger, (iv) any tax return filed by any
current or past member of Christiana's consolidated group, (v) any Tax
to which Christiana may be alleged to be liable by reason of being
affiliated with any other Person for all periods prior to the Effective
Date, (vi) property taxes with respect to the assets of Christiana or
any Christiana Company for all periods prior to the Effective Date and
(vii) any transfer taxes or value added taxes in connection with the
transactions contemplated by the Logistic Sale and the Merger.
1.14 Liability. Liability means any and all claims, demands,
liabilities, responsibilities, disputes, causes of action and
obligations of every nature whatsoever, liquidated or unliquidated,
known or unknown, matured or unmatured, or fixed or contingent.
1.15 Member. Member means each person who has been admitted to
TLC as a member as provided in the Delaware Limited Liability Company
Act (the "DLLCA") and the Operating Agreement.
1.16 Membership Units. Membership Units means the basis by
which a Member's ownership interest in TLC issued pursuant to the
Operating Agreement is measured.
1.17 Merger. Merger means the merger of Christiana
Acquisition, Inc. with and into Christiana Companies, Inc. as
contemplated by the Merger Agreement.
1.18 Merger Agreement. Merger Agreement means the Agreement
and Plan of Merger dated December 12, 1997, by and among EVI, Christiana
Acquisition, Inc., Christiana Companies, Inc. and C2, Inc.
1.19 Operating Agreement. Operating Agreement shall mean the
form of Operating Agreement attached hereto as Exhibit A.
-5-
7
1.20 Person. Person means an individual, corporation, limited
liability company, partnership, governmental authority or any other
entity.
1.21 Properties. Properties means the properties currently or
previously owned or operated by Christiana or any Christiana Company.
1.22 Retained Liabilities. Retained Liabilities shall mean and
be limited solely to (i) those accounts payable relating to Christiana
that are reflected on the Effective Date balance sheet of Christiana,
(ii) those accounts payable reflected on the Effective Date balance
sheet of Christiana and agreed to by EVI prior to the Effective Date,
(iii) the obligations of Christiana that arise after the Effective Date
(other than obligations relating to matters existing or occurring on or
prior to the Effective Date and indemnification, warranty and product
liability, wrongful death or property claims associated with actions or
omissions prior to the Effective Date or any business conducted prior to
the Effective Date) and (iv) EVI Related Taxes (as defined in the Merger
Agreement).
1.23 Taxes. Taxes means all federal, state, local, foreign and
other taxes, charges, fees, duties, levies, imposts, customs or other
assessments, including, without limitation, all net income, gross
income, gross receipts, sales, use, ad valorem, transfer, franchise,
profits, profit share, license, lease, service, service use, value
added, withholding, payroll, employment, excise, estimated, severance,
stamp, occupation, premium, property, windfall profits or other taxes,
fees, assessments, customs, duties, levies, imposts, or charges of any
kind whatsoever with any interest, penalties, additions to tax, fines or
other additional amounts imposed thereon or related thereto, and the
term Tax means any one of the foregoing Taxes.
1.24 Waste Materials. Waste Material means any (i) toxic or
hazardous materials or substances; (ii) solid wastes, including
asbestos, polychlorinated biphenyls, mercury, buried contaminants,
chemicals, flammable or explosive materials; (iii) radioactive
materials; (iv) petroleum wastes and spills or releases of petroleum
products; and (v) any other chemical, pollutant, contaminant, substance
or waste that is regulated by any governmental entity under any
Environmental Law.
2. Purchase and Sale of Membership Units; Purchase Price.
2.1. Purchase and Sale of Membership Units.
(a) Effective as of the closing, Christiana shall sell, transfer,
assign, convey and deliver, and C2 shall purchase and accept, 666.667
Membership Units.
(b) CHRISTIANA MAKES NO REPRESENTATION OR WARRANTY, EXPRESS OR
IMPLIED, WITH RESPECT TO THE MEMBERSHIP UNITS OR THE ASSETS (CURRENT,
FIXED, PERSONAL, REAL, TANGIBLE OR
-6-
8
INTANGIBLE) OF TLC AND ITS SUBSIDIARIES, INCLUDING, BUT NOT LIMITED TO,
CONDITION OR WORKMANSHIP THEREOF, OR THE ABSENCE OF ANY DEFECTS THEREIN,
WHETHER LATENT OR PATENT, CAPACITY, SUITABILITY, UTILITY, SALABILITY,
AVAILABILITY, COLLECTIBILITY, OPERATIONS, CONDITIONS, MERCHANTABILITY OR
FITNESS FOR A PARTICULAR PURPOSE, IT BEING THE EXPRESS AGREEMENT OF C2,
TLC AND CHRISTIANA THAT, EXCEPT AS EXPRESSLY SET FORTH IN THIS
AGREEMENT, C2 WILL ACQUIRE THE MEMBERSHIP UNITS AND INTEREST IN THE
ASSETS OF TLC THROUGH SUCH OWNERSHIP INTEREST IN THEIR PRESENT CONDITION
AND STATE OF REPAIR, ON AN "AS IS AND WHERE IS, WITH ALL FAULTS" BASIS.
2.2 Assumption. Effective as of the closing, as an inducement
to Sub to merge with Christiana, C2 hereby unconditionally assumes and
undertakes to pay, satisfy and discharge when due the Assumed
Liabilities. Notwithstanding the foregoing, Christiana hereby retains
and C2 will have no liability with respect to the Retained Liabilities.
In addition, effective as of the Closing, as a further inducement to Sub
to merge with Christiana, TLC hereby unconditionally assumes and
undertakes to pay, satisfy and discharge when due the Assumed
Liabilities to the extent such Assumed Liabilities relate to any of the
historical businesses, operations or assets of TLC and its subsidiaries.
The closing shall occur on or prior to the closing of the Merger.
2.3. Purchase Price. The aggregate purchase price ("Purchase
Price") for the 666.667 Membership Units shall be (i) $10,666,667,
payable on the same date that funds are paid by EVI to the Exchange
Agent (as defined in the Merger Agreement) pursuant to Section 1.8(c) of
the Merger Agreement by C2 to Christiana in the form of a certified or
cashier's check, or, at the option of Christiana, by wire transfer of
immediately available funds to an account designated by Christiana and
(ii) the assumption by C2 at the closing of the Assumed Liabilities.
2.4 ABSOLUTE ASSUMPTION. IT IS THE INTENT OF THE PARTIES THAT
THE LIABILITIES AND ENVIRONMENTAL LIABILITIES ASSUMED BY C2 AND TLC
UNDER THIS AGREEMENT SHALL BE WITHOUT REGARD TO THE CAUSE THEREOF OR THE
NEGLIGENCE OF ANY PERSON, WHETHER SUCH NEGLIGENCE BE SOLE, JOINT OR
CONCURRENT, ACTIVE OR PASSIVE, AND WHETHER SUCH LIABILITY OR
ENVIRONMENTAL LIABILITY IS BASED ON STRICT LIABILITY, ABSOLUTE LIABILITY
OR ARISING AS AN OBLIGATION OF CONTRIBUTION. C2 AND TLC EACH HEREBY
WAIVES AND RELEASES FOR ITSELF AND ON BEHALF OF AFFILIATES (OTHER THAN
CHRISTIANA, EVI AND THEIR RESPECTIVE AFFILIATES) ANY CLAIMS, DEFENSES OR
CLAIMS FOR CONTRIBUTION THAT IT HAS OR MAY HAVE AGAINST CHRISTIANA, EVI
OR ANY OF THEIR RESPECTIVE AFFILIATES WITH RESPECT TO THE ASSUMED
LIABILITIES.
-7-
9
3. Representations of Christiana.
3.1. Organization. Christiana is a corporation duly organized
and validly existing under the laws of the state of Wisconsin. TLC is a
limited liability company duly organized, validly existing and in good
standing under the laws of the state of Delaware.
3.2. Title. The 666.667 Membership Units being transferred
pursuant to this Agreement without any representation or warranty of any
kind, including any implied representations of the title.
4. Representations of C2 and TLC.
4.1. Organization. TLC is a limited liability company duly
organized and validly existing under the laws of the state of Delaware.
C2 is a corporation duly organized and validly existing under the laws
of the state of Wisconsin.
4.2. Corporate Power. Each of C2 and TLC has full power, legal
right and authority to enter into this Agreement, and to carry out the
transactions contemplated hereby. The execution of this Agreement, and
full performance hereunder, has been duly authorized by C2's Board of
Directors and TLC's Members.
4.3. Validity. This Agreement has been duly and validly
executed and delivered by C2 and TLC and is the legal, valid and binding
obligation of each of C2 and TLC, enforceable in accordance with its
terms.
5. Operating Agreement; Put and Participation Rights.
5.1 Operating Agreement. At the Closing, C2 and Christiana
shall enter into the Operating Agreement.
5.2 Put. At any time after the fifth anniversary date of the
Effective Date, Christiana shall have the option (but shall not be
required) to sell to C2 or TLC, at Christiana's option, and C2 and TLC,
as applicable, shall be required to purchase, all (but not less than
all) of Christiana's Membership Units for a price equal to $7 million.
To exercise this option, Christiana shall provide notice in writing to
C2 or TLC, as applicable, of such election. The closing of any purchase
pursuant to this Section 5.2 shall occur within 60 days of notice to C2
or TLC, as applicable. The price required to be paid by C2 or TLC, as
applicable pursuant to this Section 5.2 shall be paid in cash. The
rights contained in this Section 5.2 shall expire on the date one year
after the fifth anniversary of the Effective Date.
5.3 Participation Rights. If there is a proposed
merger, consolidation or share exchange involving C2 or TLC or if C2
shall propose to transfer or sell all its interest in TLC to an
unrelated third party (a "Third Party") in one or more transactions,
Christiana shall have the right to
-8-
10
participate (a "Tag Along Right") in such sale with respect to the
Membership Units held by it for the same equivalent consideration per
equivalent unit in TLC and otherwise on the same terms as such member
sells or transfers their interests in C2. If circumstances occur which
give rise to the Tag Along Right, then C2 shall give written notice
("Tag Along Notice") to Christiana providing a summary of the terms of
the proposed sale to the Third Party and advising Christiana of its Tag
Along Right. Christiana may exercise its Tag Along Right by delivery of
written notice to C2 within fifteen (15) days of its receipt of the Tag
Along Right. If Christiana gives written notice indicating that it
wishes to sell, it shall be obligated to sell its Membership Units upon
the substantially same terms and conditions as the members of C2 are
selling to the Third Party conditioned upon and contemporaneous with
completion of the transaction of purchase and sale with the Third Party.
6. Indemnification.
6.1 Indemnification Matters.
(a) Indemnification. Each of C2 and TLC, jointly and
severally, hereby agree to indemnify, defend and hold Christiana, EVI
and their respective officers, directors, employees, agents and assigns
(collectively, the "EVI Indemnified Parties") harmless from and against
any and all Liabilities or Environmental Liabilities (including, without
limitation, reasonable fees and expenses of attorneys, accountants,
consultants and experts) that the EVI Indemnified Parties incur, are
subject to a claim for, or are subject to, that are based upon, arising
out of, relating to or otherwise in respect of:
(i) Any breach of any covenant or agreement of C2 or TLC
contained in this Agreement or in any other agreement
contemplated hereby;
(ii) The acts or omissions of Christiana or any Christiana
Company on or before the Effective Date;
(iii) The acts or omissions of TLC, any Christiana Company or
any of its Affiliates (other than Christiana or EVI) or
the conduct of any business by them on or after the
Effective Date (it being understood that this
indemnification shall not apply to acts or omissions by
Christiana or EVI after the Effective Date);
(iv) The Assumed Liabilities;
(v) Any and all amounts for which Christiana or EVI may be
liable on account of any claims, administrative charges,
self-insured retentions, deductibles, retrospective
premiums or fronting provisions in insurance policies,
including as the result of any uninsured period, insolvent
insurance carriers or exhausted policies, arising from
claims by Christiana or any Christiana Company, or the
employees of any of the foregoing, or claims by
-9-
11
insurance carriers of Christiana or any Christiana Company
for indemnity arising from or out of claims by or against
Christiana or any Christiana Company for acts or omissions
of Christiana or any Christiana Company, or related to any
current or past business of Christiana or any Christiana
Company or any product or service provided by Christiana
or any Christiana Company in whole or part prior to the
Effective Date;
(vi) Any settlements or judgments in any litigation commenced
by one or more insurance carriers against Christiana or
EVI on account of claims by any Christiana Company or
employees of any Christiana Company and, if filed prior to
the Effective Date, by Christiana or any employee of
Christiana;
(vii) Any Taxes (other than EVI Related Taxes) as a result of
the Logistic Sale and any Taxes as a result of the Merger
subsequently being determined to be a taxable transaction
for foreign, federal, state or local law purposes
regardless of the theory or reason for the transactions
being subject to Tax;
(viii) The on-site or off-site handling, storage, treatment or
disposal of any Waste Materials generated by Christiana or
any Christiana Company on or prior to the Effective Date
or any Christiana Company at any time;
(ix) Any COBRA Liability with respect to any employees of
Christiana or any Christiana Company prior to the Closing;
(x) Any and all Environmental Conditions, known or unknown,
existing on, at or underlying any of the Properties on or
prior to the Effective Date;
(xi) Any and all Liabilities incurred by Christiana or EVI
pursuant to its obligations hereunder in seeking to obtain
or obtaining any consent or approval to assign and
transfer any interest in TLC;
(xii) Any acts or omissions of Christiana or any Christiana
Company relating to the ownership or operation of the
business of Christiana or any Christiana Company or the
Properties on or prior to the Effective Date;
(xiii) Any Liability relating to any claim or demand by any
stockholder of Christiana or EVI with respect to the
Merger, the Logistic Sale or the transactions relating
thereto; and
(xiv) Any Liability relating to any Christiana or any Christiana
Company employee benefit or welfare plans arising out of
circumstances occurring on or prior to the Effective Date.
-10-
12
(b) Allocation of Liability Payment Obligations. To the
extent a Liability exists or a claim for indemnification is made by an
EVI Indemnified Party hereunder, such Liability shall be paid and such
claim shall be defended and paid as follows:
(i) If the Liability or claim relates primarily to the
historic assets, liability operations of business TLC
(excluding [describe non TLC historic subs] (the "TLC
Historic Business"), TLC shall, as between C2 and TLC, be
primarily responsible for the payment of such Liability
and the defense and payment of such claim. If TLC does
not defend or pay such claim, C2 shall be responsible for
the defense and payment of such claim.
(ii) If the Liability or claim relates primarily to a matter
other than the TLC Historic Business, C2 shall, as between
C2 and TLC and subject to the provisions of clause (iii)
below, be primarily responsible for the payment of such
Liability and the defense and payment of such claim. If
C2 does not defend or pay such claim, TLC shall be
responsible for the defense and payment of such claim.
(iii) If the Liability or claim relates primarily to a matter
other than the TLC Historic Business, the costs of defense
and payment of the Liability shall be paid by EVI to the
extent and only to the extent of the Christiana Retained
Cash (as defined in the Merger Agreement); provided that
once such Christiana Retained Cash is paid pursuant to the
Merger Agreement, EVI shall have no obligation to pay such
amounts. Any such payments shall be subject to EVI being
provided with reasonable documentation regarding the
payment obligations.
(iv) If TLC pays any amounts relating to an Assumed Liability
or an indemnification claim hereunder, Christiana shall be
entitled to receive a cash payment equal to one-third of
any such amount paid when and if (i) TLC or all or
substantially all of its assets are sold, (ii) there is a
sale of Membership Units by C2 or (iii) there is a direct
or indirect transfer or sale of the membership units of
TLC held by C2 or of the membership units of C2. The
obligation to pay such amounts shall be payable by C2.
(v) To secure the obligations of C2 hereunder, C2 shall pledge
to Christiana all of C2's interest in TLC, including all
rights to distributions in respect thereof, pursuant to a
pledge agreement in such form and having such terms as
Christiana may reasonably request.
(vi) Notwithstanding the foregoing, nothing contained in this
Agreement shall be construed to be an assumption of any
obligation
-11-
13
or responsibility by EVI of any Assumed Liabilities and
its obligations hereunder shall be personal to TLC and C2
to the extent and only to the extent EVI has agreed to
fund the payment of indemnity claims by it with the
Christiana Retained Cash as expressly provided herein. No
third party shall be deemed to have any rights against EVI
as result of this Agreement.
(c) Absolute Indemnity. NONE OF THE EVI INDEMNIFIED PARTIES
WILL BE OBLIGATED TO INSTITUTE ANY LEGAL PROCEEDINGS IN
CONNECTION WITH THE COLLECTION OR PURSUIT OF ANY INSURANCE IN
ORDER TO EXERCISE AN INDEMNIFICATION REMEDY UNDER THIS SECTION
VI. UNLESS OTHERWISE SPECIFICALLY EXPRESSED, THIS INDEMNITY
OBLIGATION SHALL APPLY WITHOUT REGARD TO WHETHER THE LIABILITY OR
ENVIRONMENTAL LIABILITY WAS CAUSED BY THE ORDINARY OR GROSS
NEGLIGENCE OF ANY OF THE EVI INDEMNIFIED PARTIES (WHETHER SUCH
NEGLIGENCE BE SOLE, JOINT OR CONCURRENT OR ACTIVE OR PASSIVE), OR
WHETHER THE LIABILITY OR ENVIRONMENTAL LIABILITY IS BASED ON
STRICT LIABILITY, ABSOLUTE LIABILITY OR ARISES AS AN OBLIGATION
OF CONTRIBUTION OR INDEMNITY. EACH OF C2 AND TLC ACKNOWLEDGES
THAT IT IS AWARE OF VARIOUS THEORIES KNOWN AS THE "EXPRESS
NEGLIGENCE" DOCTRINE AND OTHER SIMILAR DOCTRINES AND THEORIES
THAT MAY LIMIT INDEMNIFICATION AND AGREES AND STIPULATES THAT THE
PROVISIONS OF THIS AGREEMENT REFLECT THE EXPRESS INTENT OF THE
PARTIES THAT THE INDEMNIFICATION TO BE PROVIDED BY TLC AND C2
APPLY NOTWITHSTANDING THE FACT THAT THE LIABILITY OR
ENVIRONMENTAL LIABILITY (I) MAY NOT CURRENTLY BE KNOWN BY IT OR
MANIFEST ITSELF IN ANY REGARD, (II) MAY ARISE UNDER A STATUTE OR
THEORY THAT MAY NOT CURRENTLY EXIST OR BE KNOWN TO TLC, (III) MAY
ARISE AS A RESULT OF A NEGLIGENT ACT OR OMISSION BY ANY OF THE
EVI INDEMNIFIED PARTIES (WHETHER SUCH CONDUCT BE SOLE, JOINT OR
CONCURRENT OR ACTIVE OR PASSIVE) OR (IV) MAY CONSTITUTE A
VIOLATION OF ANY APPLICABLE CIVIL OR CRIMINAL LAW OR REGULATION.
6.2 Notice of Circumstance. After receipt by an EVI
Indemnified Party of notice, or an EVI Indemnified Party's actual
discovery, of any action, proceeding, claim, demand or potential claim
which could give rise to a right to indemnification pursuant to any
provision of this Agreement (any of which is individually referred to a
as a "Circumstance"), the EVI Indemnified Party shall give TLC and C2
(collectively the "TLC Parties") written notice describing the
Circumstances in reasonable detail; provided, however, that no delay by
an EVI Indemnified Party in notifying the TLC Parties shall relieve the
TLC Parties from any Liability or Environmental Liability hereunder
unless (and then solely to the extent) the TLC Parties' position is
actually adversely prejudiced. In the
-12-
14
event the TLC Parties notifies the EVI Indemnified Party within 15 days
after such notice that the TLC Parties is assuming the defense thereof,
(i) the TLC Parties will defend the EVI Indemnified Parties against the
Circumstances with counsel of its choice, provided such counsel is
reasonably satisfactory to EVI, (ii) the EVI Indemnified Parties may
retain separate co-counsel at its or their sole cost or expense (except
that the TLC Parties will be responsible for the fees and expenses for
the separate co-counsel to the extent EVI concludes reasonably that the
counsel the TLC Parties has selected has a conflict of interest), (iii)
the EVI Indemnified Parties will not consent to the entry of any
judgment or enter into any settlement with respect to the Circumstances
without the written consent of the TLC Parties, and (iv) the TLC Parties
will not consent to the entry of any judgment with respect to the
Circumstances, or enter into any settlement which (x) requires any
payments by or continuing obligations of an EVI Indemnified Party, (y)
requires an EVI Indemnified Party to admit any facts or liability that
could reasonably be expected to adversely affect an EVI Indemnified
Party in any other matter or (z) does not include a provision whereby
the plaintiff or claimant in the matter released the EVI Indemnified
Parties from all Liability with respect thereto, without the written
consent of EVI. In the event the TLC Parties does not notify EVI within
15 days after EVI has given notice of the Circumstance that the TLC
Parties is assuming the defense thereof, the EVI Indemnified Parties may
defend against, or enter into any settlement with respect to, the
Circumstance in any manner the EVI Indemnified Parties reasonably may
deem appropriate, at the TLC Parties' sole cost. The foregoing
provisions shall be subject to the provisions of Section 6.1(b).
6.3 Insurance. the TLC Parties shall not be obligated to
indemnify the EVI Indemnified Parties for amounts which shall have been
covered and paid by insurance of the EVI Indemnified Parties, provided,
however, insurance shall not include deductibles or self-insured
retentions.
6.4 Scope of Indemnification. INDEMNIFICATION UNDER THIS
SECTION VI SHALL BE IN ADDITION TO ANY REMEDIES CHRISTIANA, EVI OR ANY
EVI INDEMNIFIED PARTY MAY HAVE AT LAW OR EQUITY. THERE SHALL BE NO TIME
LIMIT AS TO C2'S OF TLC'S INDEMNIFICATION OBLIGATIONS HEREUNDER.
6.5 Indemnity for Certain Environmental Liabilities. It is
the intention of the parties that the indemnity provided herein with
respect to Environmental Liabilities under CERCLA and corresponding
provisions of state law is an agreement expressly not barred by 42
U.S.C. Section 9607(e)(i) and corresponding provisions of state law.
6.6 C2 and TLC Covenants. To assure the performance of the
obligations of C2 and TLC under this Agreement, C2 and TLC each hereby
covenants and agrees that it will not, and will cause its subsidiaries
to not, merge, convert into another entity, engage in a share or
interest exchange for a majority of its units or shares, liquidate or
transfer, assign or otherwise convey or allocate, directly or
indirectly, in one or more transactions, whether or not
-13-
15
related, a majority of C2's or TLC's assets (determined in good faith by
a board or similar managing body's resolution prior to the transaction
on a fair value and consolidated basis) to any Person unless the
acquiring Person expressly assumes the obligations of C2 or TLC, as the
case may be, hereunder, (ii) executes and delivers to Christiana and EVI
an agreement agreeing to be bound by each and every provision of this
Agreement as if it were C2 or TLC, as the case may be,and (iii) has a
net worth on a pro forma basis after giving effect to the acquisition or
business combination equal to or greater than that of C2 or TLC, as the
case may be, on a consolidated basis.
7. Miscellaneous.
7.1. Waiver and Amendment. Any provision of this Agreement may
be waived at any time by the party that is 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 this Agreement may be amended only as may be
permitted by the laws that govern EVI, TLC, Christiana and C2. 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.
7.2 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 7.2. 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 TLC and C2 and one to be appointed by
EVI 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. 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
-14-
16
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 7.2, 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 arbitrator's award:
(a) each of the parties hereto irrevocably consents to the
non-exclusive jurisdiction of, and venue in, any state court located in
Harris County, Texas or any federal court sitting in the Southern
District of Texas in any suit, action or proceeding seeking injunctive
relief, arising out of or relating to this Agreement or any of the other
agreements contemplated hereby and any other court in which a matter
that may result in a claim for indemnification hereunder by an EVI
Indemnified Party may be brought with respect to any claim for
indemnification by an EVI 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 arbitration arising
out of or relating to this Agreement or any of the other agreements
contemplated hereby brought in any state court located in Harris 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 for
indemnification hereunder by an EVI Indemnified Party may be brought
with respect to any claim for indemnification by an EVI 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; and
(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.
7.3. 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. Nothing in this
Agreement, express or
-15-
17
implied, is intended to or shall confer upon any person other than TLC,
C2, Christiana, EVI, and the EVI Indemnified Parties any rights,
benefits or remedies of any nature whatsoever under or by reason of this
Agreement.
7.4. 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 EVI:
EVI, Inc.
5 Post Oak Park, Suite 1760
Houston, Texas 77027
Attn: Bernard J. Duroc-Danner
Facsimile: (713) 297-8488
with a copy to:
Fulbright & Jaworski, L.L.P.
1301 McKinney, Suite 5100
Houston, Texas 77010-3095
Attn: Curtis W. Huff
Facsimile: (713) 651-5246
if to TLC:
Total Logistic Control, LLC
700 N. Water Street
Suite 1200
Milwaukee, Wisconsin 53202
Attn: William T. Donovan
Facsimile: (414) 291-9061
with a copy to:
Foley & Lardner
777 East Wisconsin Avenue
Milwaukee, Wisconsin 53202
Attn: Joseph B. Tyson, Jr.
Facsimile: (414) 297-4900
-16-
18
if to Christiana:
5 Post Oak Park, Suite 1760
Houston, Texas 77027
Attn: James G. Kiley
Facsimile: (713) 297-8488
with a copy to:
Fulbright & Jaworski, L.L.P.
1301 McKinney, Suite 5100
Houston, Texas 77010-3095
Attn: Curtis W. Huff
Facsimile: (713) 651-5246
if to C2:
700 N. Water Street
Suite 1200
Milwaukee, Wisconsin 53202
Attn: William T. Donovan
Facsimile: (414) 291-9061
with a copy to:
Foley & Lardner
777 East Wisconsin Avenue
Milwaukee, Wisconsin 53202
Attn: Joseph B. Tyson, Jr.
Facsimile: (414) 297-4900
or to such other address as any party shall have furnished to the other
by notice given in accordance with this Section 7.4. 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.
7.5. 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 by
governed by the laws of the State of Texas without regard to conflict of
laws principles.
7.6. Severability. If any provision of this Agreement is held
to be unenforceable, this Agreement shall be considered divisible and
such provision shall be deemed inoperative to the extent it is deemed
unenforceable, and in all other respects this Agreement shall remain in
full force and effect; provided, however, that if any such provision may
be made enforceable by limitation
-17-
19
thereof, then such provision shall be deemed to be so limited and shall
be enforceable to the maximum extent permitted by applicable law.
7.7. 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.
7.8. Headings. The Section headings herein are for convenience
only and shall not affect the construction hereof.
7.9. Entire Agreement. This Agreement constitutes the entire
agreement and supersedes all other prior agreements and understandings,
both oral and written, among the parties or any of them, with respect to
the subject matter hereof.
-18-
20
IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be duly executed as of the day and year first above written.
EVI, INC.
("EVI")
By: /s/ Bernard J. Duroc-Danner
---------------------------------
Title: President
-------------------------------
TOTAL LOGISTIC CONTROL, LLC
("TLC")
By: /s/ William T. Donovan
---------------------------------
Title: President
------------------------------
CHRISTIANA COMPANIES, INC.
("Christiana")
By: /s/ William T. Donovan
---------------------------------
Title: President
-------------------------------
C2, INC.
("C2")
By: /s/ William T. Donovan
---------------------------------
Title: President
------------------------------
-19-
21
As permitted by Item 601(b)(2) of Regulation S-K, the Company has not
filed any exhibits with this Exhibit No. 2.2. Listed below is a brief
description of the omitted exhibit. The Company agrees to furnish
supplementally a copy of the omitted exhibit to the Commission upon request.
Exhibit
A Operating Agreement of Logistic