EXHIBIT 2.1
STOCK SUBSCRIPTION AGREEMENT
THIS STOCK SUBSCRIPTION AGREEMENT (this "Agreement") is entered into
as of the 14th day of April, 2006, by and among Macquarie Terminal Holdings LLC,
a Delaware limited liability company (the "Investor"), Loving Enterprises, Inc.,
a Louisiana corporation (the "Company"), and the Current Owners (as defined
herein). The Investor, the Company and the Current Owners are referred to herein
individually as a "Party" and collectively as the "Parties."
WHEREAS, the Current Owners are the record and beneficial owners of
all of the issued and outstanding shares of the capital stock of the Company,
which consists of 1,000 shares of Common Stock, $100 par value per share (the
"Company Common Stock"); and
WHEREAS, upon the terms and subject to the conditions set forth
herein, the Investor desires to invest in the Company through the authorization
and issuance by the Company of an additional 1,000 shares (the "Shares") of the
Company Common Stock and the Company desires to issue such Shares to the
Investor (the "Transaction"), such that upon completion of the Transaction the
Current Owners and the Investor will each own 50% of the issued and outstanding
shares of Company Common Stock.
NOW, THEREFORE, in consideration of the premises and the mutual
promises herein made, and in consideration of the representations, warranties,
and covenants herein contained, the Parties agree as follows:
ARTICLE I
ISSUANCE OF SHARES
1.1 Issuance of Shares. On the terms and subject to the conditions of this
Agreement, the Investor agrees to acquire from the Company, and the Company
agrees to issue to the Investor, the Shares, free and clear of all Encumbrances,
which shares will constitute as of the Closing Date fifty percent (50%) of the
issued and outstanding shares of the capital stock of the Company, for the
consideration specified in Section 1.2.
1.2 Subscription Price. The stock subscription price for the Shares (the
"Subscription Price") shall be Two Hundred Fifty Million Dollars ($250,000,000)
which shall be paid by the Investor to the Company at the Closing by the
delivery to the Company of immediately available funds pursuant to Section 2.2
hereof.
ARTICLE II
CLOSING
2.1 Time and Place of the Closing. The closing of the transactions
contemplated by this Agreement (the "Closing") shall take place at the offices
of Pillsbury ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ LLP, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇. The
Closing shall be effective as of 11:59 P.M. April 30, 2006, (the "Closing Date")
subject to the satisfaction or waiver of the conditions set forth in Articles
VII and VIII hereof or such other date as the Parties may mutually determine.
The Closing shall occur on May 1, 2006.
2.2 Deliveries. At the Closing, (i) each of the Current Owners and the
Company will deliver to the Investor the various certificates, instruments, and
documents referred to in Section 7.6 below, (ii) the Company will deliver to the
Investor stock certificates representing the Shares acquired by the Investor,
(iii) the Investor will deliver to the Company the certificates, instruments and
documents referred to in Section 8.4 below and (iv) the Investor will deliver to
the Company the Subscription Price as set forth in Section 1.2 above.
ARTICLE III
REPRESENTATIONS AND WARRANTIES RELATING TO THE COMPANY
As a material inducement to the Investor to enter into this
Agreement, the Company represents and warrants to the Investor, as of the date
hereof and as of the Closing Date, as follows:
3.1 Organization and Corporate Power. The Company is a corporation duly
organized, validly existing and in good standing under the laws of the
jurisdiction in which it was organized and the Company is qualified to do
business and in good standing in each jurisdiction where the character or
location of its assets or its properties owned, leased or operated by it, or the
nature of its activities makes such qualification necessary and the copies of
the Company's Certificate of Incorporation, which has been furnished to the
Investor, reflect all amendments made thereto at any time prior to the date of
this Agreement and are correct and complete. The Company has no Bylaws currently
in effect. With the exception of volumes 4 and 5, the copies of minute books
containing the records of meetings of the stockholders and board of directors,
the stock certificate books and the stock record books of the Company, each of
which have been furnished to the Investor, are correct and complete. The Company
is not in default under or in violation of any provision of its Certificate of
Incorporation. Volumes 4 and 5 have not been furnished to the Investor due to
the Company's inability to locate them but they do not contain any information
that would affect the accuracy or completeness of the representations made by
the Company in this Agreement or any information that would be material to the
Investor's decision to make the investment contemplated herein.
3.2 Authority for Agreement. The Board of Directors of the Company has
unanimously approved this Agreement and the other documents contemplated hereby
and the transactions contemplated hereby and thereby and have authorized the
execution, delivery and performance of this Agreement and the other documents
contemplated hereby and the
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consummation of the transactions contemplated hereby and thereby. The Company
has full corporate power, authority and legal right to enter into this Agreement
and the other documents contemplated hereby to which the Company is a party and
to consummate the transactions contemplated hereby and thereby. No other
corporate proceedings on the part of the Company are necessary to approve and
authorize the execution, delivery and performance of this Agreement and the
other documents contemplated hereby and the consummation of the transactions
contemplated hereby and thereby. This Agreement and the other documents
contemplated hereby have been duly executed and delivered by the Company and are
legal, valid and binding obligations of the Company, enforceable against it in
accordance with their respective terms, except as enforceability may be limited
by applicable bankruptcy, insolvency, reorganization, moratorium or other
similar laws affecting the enforcement of creditors' rights in general.
3.3 No Violation to Result. Except as set forth on Schedule 3.3, the
execution, delivery and performance by the Company of this Agreement and the
other documents contemplated hereby and the consummation by the Company of the
transactions contemplated hereby and thereby and the fulfillment by the Company
of the terms hereof and thereof: (i) are not in violation or breach of, do not
conflict with or constitute a default under, and shall not accelerate or permit
the acceleration of the performance required by, any of the terms of the
Certificate of Incorporation of the Company or any note, debt instrument,
security agreement, mortgage or any other contract or agreement, written or
oral, to which the Company or any Subsidiary is a party or by which it is bound;
(ii) shall not be an event which, after notice or lapse of time or both, will
result in any such violation, breach, conflict, default, or acceleration; (iii)
to the Company's Knowledge, shall not result in a violation under any law,
judgment, decree, order, rule, regulation, permit or other legal requirement of
any Government Authority applicable to the Company or any Subsidiary; and (iv)
shall not result in the creation or imposition of any Encumbrance, or
restriction in favor of any Person upon the Shares acquired by the Investor or
any of the properties or assets of the Company or any Subsidiary. Other than as
set forth on Schedule 3.3, no notice to, filing with, or consent of, any Person
is necessary for the execution, delivery or performance by the Company of this
Agreement and the other documents contemplated hereby or the consummation by the
Company of the transactions contemplated hereby or thereby. The Company has
given all notices, made all filings and obtained all consents set forth on
Schedule 3.3, including without limitation any consents required from financial
institutions.
3.4 Investment in Subsidiaries.
(a) Schedule 3.4 sets forth the name of each corporation, partnership,
limited liability, joint venture or other entity, in which the Company directly
or indirectly has (or has the right the acquire) any ownership interest. With
the exception of the entities in which the Company only holds a minority
interest, as designated on such schedule, each such entity is referred to as a
"Subsidiary" for purposes of this Agreement.
(b) Each Subsidiary is duly organized, validly existing and in good
standing under the laws of the state in which it is organized and has all
requisite power and authority to own its properties and assets and to conduct
its businesses as now conducted. Each Subsidiary is duly qualified to do
business and is in good standing in every state where the character of the
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properties owned or leased by it or the nature of the business conducted by it
makes such qualification necessary. Copies of the articles of incorporation and
bylaws; articles of organization, regulations and member agreements and
partnership certificates and partnership agreements (as the case may be) of each
Subsidiary, with all amendments thereto to the date hereof, have been made
available (for inspection and review) by the Company to the Investor or its
representatives, and such copies are accurate and complete. Other than with
respect to St. Rose of Texas, Inc. and St. Rose of Miami, Inc., the minute books
(containing the records of meetings of the shareholders, members, partners, the
board of directors, board of managers and any committees designated by such
boards), the stock registers and the stock, member or partner registers and
record books of each Subsidiary have been made available (for inspection and
review) to Investor or its representatives and are correct and complete in all
material respects. The minute books for St. Rose of Texas, Inc. and St. Rose of
Miami, Inc. have not been furnished to the Investor due to the Company's
inability to locate them but they do not contain any information that would
affect the accuracy or completeness of the representations made by the Company
in this Agreement or any information that would be material to the Investor's
decision to make the investment contemplated herein.
3.5 Capitalization.
(a) Schedule 3.5 sets forth with respect to the Company and each
Subsidiary, (i) the number of authorized shares of each class of the entity's
capital stock or other equity interest; (ii) the number of issued and
outstanding shares of each class of the entity's capital stock or other equity
interest; (iii) the names of all holders of issued and outstanding shares of
each class of the entity's capital stock or other equity interest, together with
the number of such shares or other equity interest owned and/or controlled by
each such holder and the percentage of the issued and outstanding shares of each
class of the entity's capital stock or other equity interest which such holder
owns or controls; and (iv) the number of shares of each class of the entity's
capital stock, if any, which are held in treasury. All of the issued and
outstanding shares of capital stock or other equity interest of the entities set
forth on Schedule 3.5 (x) have been duly authorized and validly issued, and are
fully paid and non-assessable, (y) were issued or transferred in compliance with
all applicable state and federal laws and (z) were issued in compliance with any
preemptive rights or rights of first refusal. No shares of the Company's capital
stock have been sold, gifted, pledged, or otherwise transferred by any owner
thereof since December 31, 2002. There are no outstanding or authorized rights,
options, warrants, convertible securities, subscription rights, conversion
rights, exchange rights or other agreements or commitments of any kind that
could require the Company or any Subsidiary to issue or sell any shares of the
Company's or any Subsidiary's capital stock or other equity interest (or
securities convertible into or exchangeable for shares of the Company's or any
Subsidiary's capital stock or other equity interest) and no such rights or
commitments of any kind arise by virtue of or in connection with the
transactions contemplated hereby. There is no outstanding stock appreciation,
phantom stock, profit participation or other similar rights with respect to the
Company or any Subsidiary. Except as set forth on Schedule 3.5, there are no
proxies, voting rights, stockholders agreements or other agreements or
understandings with respect to the voting or transfer of the capital stock or
other equity interest of the Company or any Subsidiary. Neither the Company nor
any
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Subsidiary is obligated to redeem or otherwise acquire any of its outstanding
shares of capital stock or other equity interest. Neither the Company nor any
Subsidiary has any commitments to contribute to the capital of, make loans to or
share losses of, any Person.
(b) The Shares of the Company's capital stock to be issued to the Investor
will be upon issuance, (x) duly authorized, validly issued, fully paid and
non-assessable; (y) issued or transferred in compliance with all applicable
state and federal laws; and (z) issued in compliance with any preemptive rights
or rights of first refusal. Upon issuance such Shares will not be subject to any
transfer or other restrictions other than as set forth in the Shareholders'
Agreement. It is acknowledged by the Parties that the shares held by the Current
Owners are and will remain subject to transfer and other restrictions in
accordance with the Voting Trust for Loving Enterprises, Inc. and any successor
trust by and among the Current Owners.
3.6 Financial Statements. The Company has furnished to the Investor true,
complete and correct copies of (i) the audited consolidated balance sheets of
the Company as of December 31, 2004 and as of December 31, 2005 and the audited
consolidated statements of income, cash flow and retained earnings of the
Company at and for the fiscal years ended December 31, 2005, December 31, 2004
and December 31, 2003 (collectively, the "Year-End Financials"); and (ii) the
unaudited consolidated balance sheet of IMTT at February 28, 2006 and the
unaudited consolidated statements of income, cash flows and retained earnings of
IMTT for the two-month period ended February 28, 2006 and any unaudited
consolidated balance sheets or unaudited consolidated statements of income, cash
flows and retained earnings of IMTT for months subsequent to February 2006
delivered to the Investor pursuant to Section 6.1 (collectively, the "Interim
Financials"). The term "Financial Statements" shall mean the Year-End Financials
and the Interim Financials, the term "Balance Sheet" shall mean the Company's
audited consolidated balance sheet at December 31, 2005 and the term "Balance
Sheet Date" shall mean December 31, 2005. Each of the Financial Statements
(including in all cases the notes thereto, if any) is accurate and complete, is
consistent with the Company's and Subsidiaries' books and records (which, in
turn, are accurate and complete), presents fairly the Company's and
Subsidiaries' financial condition and results of operations as of the times and
for the periods referred to therein, and has been prepared in accordance with
GAAP. Each of the balance sheets included in the Financial Statements presents
fairly the financial condition of the Company as of the dates indicated thereon,
and each of the statements of income, cash flows and retained earnings included
in the Financial Statements presents fairly the results of its operations for
the periods indicated thereon. During the periods covered by the Financial
Statements and since the Balance Sheet Date, there has been no material change
in the Company's or the Subsidiaries' accounting policies. Other than disclosed
on Schedule 3.6(a), there are no material, special or non-recurring items of
income or expense during the periods covered by the Financial Statements and the
balance sheets included in the Financial Statements do not reflect any write-up
or revaluation increasing the book value of any assets, except as specifically
disclosed in the notes thereto. There have been no transactions involving the
business of the Company or the Subsidiaries which properly should have been set
forth in the Financial Statements and which have not been accurately so set
forth.
3.7 Liabilities. To the Company's Knowledge and except as disclosed on
Schedule 3.7, there are no Liabilities of the Company or any Subsidiary, other
than: (i) those Liabilities
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reflected on or in the Financial Statements and notes thereto and not previously
paid or discharged; and (ii) those Liabilities incurred after the Balance Sheet
Date arising in the ordinary course of business and consistent with past
practice (none of which results from, arises out of, relates to, is in the
nature of or was caused by any breach of contract, breach of warranty, tort,
infringement or violation of law).
3.8 Adverse Changes. Except as set forth on Schedule 3.8, since the
Balance Sheet Date, the Company and the Subsidiaries on a combined basis have
not suffered a Material Adverse Effect.
3.9 Employee Benefit Plans.
(a) All employee benefit plans, programs, policies and arrangements
(whether formal or informal, written or unwritten, and whether for the benefit
of a single individual or more than one individual) maintained or contributed to
(whether currently or previously) by the Company or any Subsidiary, for the
benefit of any current or former employee of the Company or any Subsidiary or in
which such employees are entitled to participate or with respect to which the
Company or any Subsidiary has or reasonably could be expected to have any
material Liability are listed on Schedule 3.9 (the "Benefit Plans"). With
respect to each Benefit Plan which is an Employee Pension Benefit Plan (as
defined in Section 3(2) of ERISA), true, correct and complete copies of all of
the following documents, if applicable, have been delivered to the Investor: all
plan documents and amendments thereto; all trust agreements; the three (3) most
recent Forms 5500 and any financial statements attached thereto; the most recent
actuarial and valuation report; the most recent IRS determination letter; the
most recent IRS opinion letter; and the most recent summary plan description.
(b) (i) To the Company's Knowledge, each Benefit Plan and the
administration thereof materially comply, and have at all times materially
complied, with the terms of such Benefit Plan and with the requirements of all
applicable law, including, without limitation, ERISA and the Code. Each Benefit
Plan intended to qualify under Section 401(a) of the Code so qualifies, each
trust that forms a part of any such Benefit Plan or trust or other entity that
is intended to be a voluntary employees' beneficiary association is exempt from
taxation under Section 501(a) of the Code, and no such trust or other entity is
liable for any tax under Section 511 of the Code.
(ii) Except as specifically described on Schedule 3.9(b)(ii), no
Benefit Plan subject to Part 3 of Title I of ERISA has incurred any "accumulated
funding deficiency" within the meaning of Section 302 of ERISA or Section 412 of
the Code or has any Benefit Plan subject to Canadian law incurred any funding
deficiency.
(iii) The Company and its Subsidiaries have no material Liability
for any Tax imposed under Sections 4971 through 4980B of the Code or material
civil Liability under Sections 502(i) or (l) of ERISA.
(iv) Except as specifically described on Schedule 3.9(b)(iv), the
"amount of unfunded benefit liabilities" within the meaning of Section
4001(a)(18) of ERISA does not exceed zero with respect to any Benefit Plan
subject to Title IV of ERISA.
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(v) The Company and its Subsidiaries have not withdrawn from any
"multiemployer plan" within the meaning of Section 3(37) of ERISA.
(vi) Except as set forth on Schedule 3.9(b)(vi), no Benefit Plan
provides health or death benefit coverage to any employee or his spouse or
dependents beyond the termination of an employee's employment, except as
required by Part 6 of Title I of ERISA or Section 4980B of the Code.
(vii) No "reportable event" (within the meaning of Section 4043 of
ERISA) has occurred with respect to any Benefit Plan or any plan maintained by
the Company or any Subsidiary since the effective date of said Section 4043.
(viii) The Company has no Liability with respect to any employee
benefit plan or arrangement sponsored or maintained by any other Person.
(c) Each Benefit Plan subject to Canadian law and the administration
thereof materially comply, and have at all times materially complied, with the
terms of such Benefit Plan and with the requirements of all applicable laws.
(d) No material suit, action or other litigation (excluding claims for
benefits incurred in the ordinary course of plan activities) has been brought
against or with respect to any Benefit Plan, and, to the Company's Knowledge, no
material suit, action or other litigation is threatened by, against, or relating
to any Benefit Plan, and to the Company's Knowledge, no fact exists that could
form the basis for any such suit, action or litigation. No "prohibited
transaction" within the meaning of Sections 406 or 407 of ERISA or Section 4975
of the Code or any breach of fiduciary responsibility under ERISA has occurred
that could subject the Company or any Subsidiary to any material tax or other
Liability. No Benefit Plan is presently under audit or examination by the IRS,
the Department of Labor, or any other Government Authority, and no matters are
pending with respect to any Benefit Plan under the IRS voluntary Compliance
Resolution Program, its Closing Agreement Program, or any other similar program.
Except as set forth on Schedule 3.9(d), all contributions to Benefit Plans that
were required to be made under such Benefit Plans have been made, and all
benefits accrued under any unfunded Benefit Plan have been paid, accrued or
otherwise adequately reserved in accordance with GAAP. No Benefit Plan contains
any term or provision or is subject to any law that would prohibit the
transactions contemplated by this Agreement, or that would give rise to the
vesting or acceleration of benefits, or to payments, Liabilities or funding
obligations as a result of the execution of this Agreement or the transactions
contemplated by this Agreement.
(e) With the exception of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, no employee of the Company or
any Subsidiary owns Company Common Stock in fact, or constructively as a result
of the application of the constructive ownership provisions of Treasury
Regulation Section 1.414(c)-4 and the Company acknowledges that the Investor is
relying on this representation for purposes of confirming that neither the
Investor nor its Affiliates will become Controlled Group Members with the
Company as a result of the consummation of the transaction contemplated by this
Agreement.
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3.10 Employee Matters.
(a) Except as set forth on Schedule 3.10(a), (i) the terms of employment
or engagement of all directors, officers, company employees, agents, consultants
and professional advisers of the Company and the Subsidiaries are such that
their employment or engagement may be terminated upon not more than two weeks'
notice given at any time and without liability for payment of compensation or
damages, (ii) there are no severance payments which are or could become payable
by the Company or any Subsidiary to any such person under the terms of any oral
or written agreement or commitment or any law, custom, trade or practice, and
(iii) there are no other agreements, contracts or commitments, oral or written,
between the Company or any Subsidiary and any such person.
(b) Except as set forth on Schedule 3.10(b), neither the Company nor any
Subsidiary is bound by or subject to (and none of their respective assets or
properties are bound by or subject to) any arrangement with any labor union.
Except as set forth on Schedule 3.10(b), no employees of the Company or any
Subsidiary are or ever have been represented by any labor union or covered by
any collective bargaining agreement while employed by the Company or any
Subsidiary and to the Company's Knowledge, no campaign to establish such
representation is in progress. To the Company's Knowledge, there is no pending
or threatened labor dispute involving the Company, any Subsidiary and any group
of its employees nor has the Company or any Subsidiary experienced any labor
interruptions within the last five (5) years. The Company and each Subsidiary is
and has been in material compliance with all applicable laws respecting
employment and employment practices, terms and conditions of employment, and
wages and hours, including without limitation any such laws regarding employment
documentation, minimum wage and hours, workers' compensation, family and medical
leave, the Immigration Reform and Control Act, and occupational safety and
health requirements, and to the Company's Knowledge, neither the Company nor any
Subsidiary has engaged in any unfair labor practice. To the Company's Knowledge,
all Persons classified by the Company or any Subsidiary as independent
contractors do satisfy and have satisfied the requirements of law to be so
classified, and each of the Company and the Subsidiaries has fully and
accurately reported their compensation on IRS Forms 1099 when required to do so.
No individual who has performed services for or on behalf of the Company or any
Subsidiary, and who has been treated by the Company or any Subsidiary as an
independent contractor is classifiable as a "leased employee," within the
meaning of Section 414(n)(2) of the Code with respect to the Company or any
Subsidiary.
(c) Except as set forth on Schedule 3.10(c), to the Company's Knowledge,
(i) no executive, key employee, consultant or independent contractor of the
Company or any Subsidiary and no group of any such persons has any plans to
terminate his, her or its employment or relationship with the Company or any
Subsidiary and (ii) no executive, key employee, consultant or independent
contractor of the Company or any Subsidiary is subject to or bound by any
agreement, understanding or commitment with or to any Person other than the
Company, or any Subsidiary to refrain from competing with such Person or
soliciting or servicing its customers, clients or prospects.
3.11 [Reserved]
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3.12 Taxes.
(a) Except as set forth in Schedule 3.12(a), each of the Company and the
Subsidiaries and each affiliated, combined, consolidated or unitary group of
which the Company or any of the Subsidiaries is or has been a member (a "Company
Group") has filed on a timely basis all federal and state income Tax Returns and
other material Tax Returns it is required to have filed. All such Tax Returns
(and all Tax Returns actually filed by the Company, the Subsidiaries and each
Company Group) are correct and complete in all material respects. Except as set
forth in Schedule 3.12(a), neither the Company nor any Subsidiary has requested
or obtained any extension of time within which to file any Tax Return, which Tax
Return has not since been filed. All material Taxes(as defined below) of the
Company and the Subsidiaries (whether or not shown or required to be shown on
any Tax Return) have been timely paid in full and the accruals and reserves for
Taxes (rather than any reserve for deferred Taxes established to reflect timing
differences between book and Tax income) reflected in the Balance Sheet (rather
than any notes thereto) are adequate to cover all material unpaid Taxes of the
Company and the Subsidiaries.
(b) Except as set forth on Schedule 3.12(b), each of the Company and the
Subsidiaries has complied in all material respects with all applicable laws,
rules and regulations relating to withholding Taxes, and has, within the time
and manner prescribed by law, withheld from employee wages and paid over to the
proper Government Authority all amounts required to have been so withheld and
paid.
(c) Except as set forth on Schedule 3.12(c), there is no audit or other
examination or other proceeding presently pending or threatened with regard to
any Tax or Tax Return of the Company or any Subsidiary. Neither the Company nor
any Subsidiary has received a written ruling from or entered into a written
agreement with a Government Authority relating to any Tax if such ruling or
agreement could have a continuing effect with respect to any taxable period for
which the Company or any Subsidiary has not filed a Tax Return. No material
issue has been raised in writing by any Government Authority with respect to
Taxes of the Company or any Subsidiary in any prior examination which, by
application of the same or similar principles, could reasonably be expected to
result in a proposed deficiency for any other taxable period. Each deficiency
resulting from any audit or examination relating to Taxes of the Company or any
Subsidiary by any Taxing authority has been paid or is being contested in good
faith and in accordance with law except as set forth on Schedule 3.12(c), and is
fully reserved for on the Balance Sheet in accordance with GAAP.
(d) Except as set forth on Schedule 3.12(d), no agreement, waiver or other
document or arrangement extending, or having the effect of extending, the period
for assessment or collection of Taxes (including, but not limited to, any
applicable statute of limitation), has been executed or filed with any
Government Authority by or on behalf of the Company or any Subsidiary that has
continuing effect; and no power of attorney with respect to any Tax matter
relating to the Company or any Subsidiary is currently in force.
(e) Except as set forth on Schedule 3.12(e), the Company and the
Subsidiaries are not a party to any contract, agreement, plan or arrangement
requiring it to make payments to any person that would be a "parachute payment"
(within the meaning of Section 280G of the Code).
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The Company and the Subsidiaries are not a party to any agreement, contract,
arrangement or plan that will result, separately or in the aggregate, in the
payment of any employee remuneration after the Closing Date that (i) will not be
deductible by reason of (A) Section 280G of the Code, (B) Sections 162(a)(l)or
162(m) of the Code, or (C) being unreasonable compensation.
(f) Except as set forth on Schedule 3.12(f), the Company and the
Subsidiaries have not made or agreed to make, have not requested permission to
make, are not required to make, and have not received any notice that a Taxing
authority proposes to require them to make, any adjustment under Section 481(a)
of the Code or Section 482 of the Code (or an analogous provision of state,
local or foreign law) by reason of any change in method of accounting of the
Company or any Subsidiary or otherwise.
(g) The Company and the Subsidiaries are not and have not been a party to
any Tax allocation, Tax sharing or similar agreement or arrangement with any
other Person (including any advance pricing agreement or other agreement
relating to Taxes with any Taxing authority). Except as set forth on Schedule
3.12(g), neither the Company nor any Subsidiary (i) has been a member of an
"affiliated group" (within the meaning of Section 1504 of the Code) filing a
consolidated federal income Tax Return other than the group of which the Company
is the parent, or (ii) has any Liability for Taxes owing by any other Person,
including, without limitation (A) under Treasury Regulation Section 1.1502-6 (or
any similar provision of state, local, or foreign law), (B) as a transferee or
successor, or (C) by contract or otherwise.
(h) Except as set forth on Schedule 3.12(h), neither the Company nor any
Subsidiary has taken any action that would have the effect of deferring a
measure of Income Tax from a period (or portion thereof) ending on or prior to
the Closing Date to a period (or portion thereof) beginning after the Closing
Date. Neither the Company nor any Subsidiary has any deferred income or Income
Tax Liability arising out of any transaction or agreement, including without
limitation, any (i) the disposal of any property in a transaction accounted for
under the installment method pursuant to Section 453 of the Code or as an open
transaction (or any corresponding or similar provision of state, local or
foreign income Tax law) or (ii) "closing agreement" as described in Code Section
7121 (or any corresponding or similar provision of state, local or foreign
income Tax law), except to the extent adequately reserved for on its Balance
Sheet.
(i) Schedule 3.12(i) identifies all Income Tax Returns that the Company or
any Subsidiary has filed for any taxable periods beginning on or after January
1, 2002 (or any earlier period if the statute of limitations has not expired or
otherwise closed with respect to such taxable period) and the taxable period
covered by each such Income Tax Return, and identifies those Income Tax Returns
or periods that have been audited or are currently the subject of an audit by a
Government Authority. The Company has made available to the Investor complete
and accurate copies of all of the following materials that relate to Tax periods
beginning on or after January 1, 2002: (A) all Income Tax Returns filed by or
with respect to the Company and the Subsidiaries, (B) all elections relating to
Income Taxes which have continuing effect for taxable years ending after the
Closing Date filed by or on behalf of the Company and the Subsidiaries with any
Government Authority (other than elections which are included in or apparent
from Income Tax Returns referred to in A above), (C) all examination reports
relating
10
to Income Taxes of the Company and the Subsidiaries, and (D) all statements of
Income Taxes assessed against the Company and the Subsidiaries. To the extent
requested, the Company has made available to Investor complete and accurate
copies of all Income Tax documents.
(j) Except as set forth on Schedule 3.12(j), neither the Company nor any
Subsidiary has constituted either a "distributing corporation" or a "controlled
corporation" within the meaning of Section 355(a)(1)(A) of the Code in a
distribution qualifying (or intended to qualify) under Section 355 of the Code
(or so much of Section 356 as relates to Section 355).
(k) Neither the Company nor any Subsidiary is or by virtue of this
Transaction will be subject to any limitation on the use of its Tax attributes
under Section 382 of the Code or Treasury Regulation Section 1.1502-15 or -21
(regarding separate return limitation years) or any comparable provisions of
state law.
(l) Neither the Company nor any Subsidiary has been a party to or
participated in any way in a transaction that could be described as a
"reportable transaction" within the meaning of Treasury Regulation Section
1.6011-4(b) (including without limitation, any "listed transaction").
(m) Schedule 3.12(m) sets forth the following information with respect to
each of the Company and the Subsidiaries as of the most recent practicable date:
the amount of any net operating loss, net capital loss, unused investment or
other credit, unused foreign tax credit, or excess charitable contribution
deduction attributable to the Company or the Subsidiary (as the case may be)
including such amounts attributable to the Company or the Subsidiary under
federal and state law. None of the amounts set forth therein are subject to
limitations by virtue of Section 382 and 383 of the Code (determined without
regard to the Transaction).
(n) Except as set forth on Schedule 3.12(n), any tax information provided
to the Investor that is preliminary or applies to Tax Returns that have not been
filed is, to the Company's Knowledge and the Subsidiaries, true, correct and
complete.
3.13 Property.
(a) (i) The Company or a Subsidiary owns marketable title, in fee simple
absolute, free and clear of any material Encumbrances or other material
exceptions to title except the Permitted Exceptions, in and to the following
(collectively, the "Real Property"): (i) all of those tracts of land, described
in Schedule 3.13(a)(i) attached hereto and incorporated herein by reference,
together with all rights and appurtenances pertaining to such land, including,
without limitation, to (w) all minerals, oil, gas, and other hydrocarbon
substances, if any, thereon, not otherwise reserved by any seller of the
applicable property, (x) all material adjacent strips, streets, roads, alleys
and rights-of-way, public or private, open or proposed, (y) all material
easements, privileges, and hereditaments, whether or not of record, and (z) all
material access, air, water, riparian, development, and utility rights
(collectively, the "Land"); and (ii) all of the material improvements and
structures located in, on, under or over the Land (collectively the
"Improvements"). For purposes of this provision, "Permitted Exceptions" means
only those material exceptions to title, if any, identified in Schedule
3.13(a)(i).
11
(ii) Except as set forth on Schedule 3.13 (a)(ii), during the past
five years neither the Company nor any Subsidiary has owned any right, title or
interest in or to any material real property other than the aforesaid Real
Property.
(iii) Schedule 3.13(a)(iii) lists (x) all material oral or written
leases, subleases, licenses, concession agreements or other use or occupancy
agreements, pursuant to which any Company or any Subsidiary leases to or from
any other party any real property, including all renewals, extensions,
modifications or supplements to any of the foregoing or substitutions for any of
the foregoing (each a "Lease" and collectively, the "Leases"); (y) all material
easement, development, cooperation, maintenance, commission, architectural,
parking, supply or service contracts, warranties, guarantees and bonds and other
public, governmental, quasi-governmental, or private agreements, enactments or
encumbrances related directly or indirectly to the Land or Improvements that
will remain in existence after Closing (each a "Property Agreement" and
collectively, the "Property Agreements"); and (z) all material permits,
licenses, certificates, approvals, registrations, franchises, rights,
qualifications and other authorizations of federal, state and local governments,
agencies and regulatory authorities required for the conduct of the business of
the Company and the Subsidiaries as operated to the date hereof or that relate
to the Land or Improvements that are necessary to conduct such business as it is
currently conducted (each a "Permit" and collectively, the "Permits"). The
Leases, Property Agreements and Permits are referred to in this Agreement each
as a "Facility Agreement" and collectively as the "Facility Agreements". To the
Company's Knowledge, the Facility Agreements are in full force and effect, have
not been assigned, sublet, modified, supplemented or amended, and are
enforceable by and against the Company and the Subsidiaries and all other
parties thereto. The Company has delivered to Investor complete and accurate
copies of each of the Facility Agreements (including all amendments, supplements
and correspondence that attempts or purports to amend the Facility Agreements).
To the Company's Knowledge, and except as set forth on Schedule 3.13(a)(iii),
neither the Company nor any Subsidiary is in material default or has received
any notice that the Company or any Subsidiary is in default under, or not in
compliance with any material provision of, the Facility Agreements, or any
notice that the Company or any Subsidiary may be subject to any special
assessments or that there may be any material changes in property tax affecting
any such Facilities. Neither any Company nor any Subsidiary has delivered any
notice to another party alleging any default under, or failure to comply with
any material provision of, any Facility Agreement nor to the Company's
Knowledge, has any event occurred that, with notice, the passage of time or both
would constitute a default by the Company or any Subsidiary under, or failure of
the Company or any Subsidiary to comply with a material provision of, any of the
Facility Agreements, or otherwise give any party a right of termination or
modification thereof. For the purposes of this Section 3.13(a)(iii), with
respect to Leases, a "significant" Lease means (1) a Lease to which the Company
or a Subsidiary is the tenant thereunder; (2) a Lease to which the Company or a
Subsidiary is the landlord thereunder if such Lease either (i) involves all or
any portion of the Real Property without which the construction, ownership, use,
occupation or operation of the applicable Facility would be materially prevented
or impaired, or (ii) requires aggregate payments to the Company or a Subsidiary
in excess of $1,000,000; or (3) a Lease to which the Company or a Subsidiary is
a party thereunder if such Lease is defined as a capital lease according to
generally accepted accounting principles. For purposes of this Section
3.13(a)(iii), with respect to Property Agreements and Permits, a "significant"
Property Agreement or Permit
12
means a Property Agreement or Permit to which the Company or a Subsidiary is a
party or that affects a Facility, the provisions of which either (X) materially
impacts the construction, ownership, use, occupation or operation of such
Facility, or (Y) requires aggregate payments to or by the Company or a
Subsidiary in excess of $1,000,000.
(b) (i) To the Company's Knowledge and except for Environmental matters
which are addressed in Section 3.18 below and as disclosed therein, neither the
Company nor any Subsidiary has received notice of any threatened condemnation
proceedings, lawsuits or administrative actions relating to the Facilities or
any other matters which do or may materially affect the current use, occupancy
or value thereof, and there are no pending or, to the Knowledge of the Company ,
threatened condemnation proceedings, lawsuits or administrative actions relating
to the Facilities or any other matters which do or may materially affect the
current use, occupancy or value thereof.
(ii) To the Company's Knowledge and except for Environmental matters
which are addressed in Section 3.18 below and as disclosed therein, all material
Improvements and all present uses and operations of such Real Property and the
structures by the Company and each of the Subsidiaries, comply in all material
respects with all applicable zoning, land-use, building, fire, labor, safety,
subdivision and other governmental requirements and all deed or other title
covenants or restrictions applicable thereto. Neither the Company nor any
Subsidiary has received any notice that the Facilities, or the use, occupancy or
operation thereof by the Company or any Subsidiary, violates any governmental
requirements or deed or other title, covenants or restrictions.
(iii) The Company and the Subsidiaries have obtained all material
approvals of governmental authorities (including certificates of use and
occupancy, licenses and permits) required in connection with the construction,
ownership, use, occupation and operation of the Facilities, and all equipment
owned or used by the Company and the Subsidiaries.
(iv) Except as set forth in Schedule 3.13(b)(iv), there are no
parties other than the Company or the Subsidiaries in possession of the
Facilities, and, other than as set forth in Schedule 3.13(b)(iv), there are no
significant leases, subleases, licenses, concessions or other agreements,
written or oral, granting to any party or parties the right of use or occupancy
of any of the Land or Improvements or any portion thereof other than the Leases.
Except with respect to the Facilities at Gretna and Avondale in ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, Louisiana, to the Company's Knowledge , no Facility is dependent upon or
benefits from any "non-conforming use" or similar zoning classification.
(v) To the Company's Knowledge, the legal descriptions for the Land
contained in any of the instruments through which the Company or any of its
Subsidiaries acquires title adequately describe the Land subject thereto. Unless
non-material, all Improvements on the Land are located within the boundary lines
of the Land and no Improvements on any parcel adjacent to any of the Land
encroach onto any of the Land.
13
(vi) Neither the Company nor any Subsidiary is required to make any
material capital expenditures under the terms of the Facility Agreements except
as otherwise set forth in Schedule 3.13(b)(vi).
(c) The Company has marketable title to the Company's Personal Property,
free and clear of defects in title and, except as set forth on Schedule 3.13(c),
any and all Encumbrances. Except as would not have a Material Adverse Effect,
the Company's assets, taken together, are adequate and sufficient for the
operation of its business as it is being currently conducted and the Company
reasonably believes will be adequate and sufficient for operating its business
after the Closing as proposed to be conducted post-Closing. The Personal
Property and the Real Property have been maintained, repaired and replaced in
the ordinary course of business consistent with past practices. The Real
Property has adequate utility service directly from public streets adjacent to
the Real Property for the current use, occupancy and operation of the Real
Property. To the Company's Knowledge, there are no facts, circumstances, or
conditions affecting the Facilities which could, individually or in the
aggregate, interfere in any material respect with the use, occupancy, or
operation thereof as currently used, occupied or operated, their adequacy for
such use, provided that the foregoing portion of this sentence shall not be
deemed to be a representation regarding the condition of the Personal Property.
3.14 Contracts.
(a) Schedule 3.14 sets forth an accurate and complete list of each
significant contract of the Company to which the Company or any Subsidiary is a
party or which affects the Company or any Subsidiary, its business or its
assets, including, without limitation any contract, (i) which could require
aggregate payments by or to the Company or any Subsidiary or involve an
unperformed commitment or services having a value, in excess of $1,000,000; (ii)
pursuant to which the Company or any Subsidiary has made or will make loans or
advances, or has or will incur debts or is or will become a guarantor or surety
or pledged its credit on or otherwise become responsible with respect to any
undertaking of another; (iii) which is an indenture, credit agreement, loan
agreement, note, mortgage, security agreement, lease of personal property or
agreement for financing; (iv) involving a partnership, joint venture, management
arrangement or other cooperative undertaking; (v) involving restrictions
relating to the Company or any Subsidiary or its business with respect to the
geographical area of operations or scope or type of business of the Company;
(vi) which is a power of attorney or agency agreement or written arrangement
with any Person pursuant to which such Person is granted the authority to act
for or on behalf of the Company or any Subsidiary; (vii) other than a customer
contract, with respect to which the requirements for performance extend beyond
one (1) year from the date of this Agreement; (viii) which contains warranties
with respect to the products manufactured and/or sold by the Company other than
those warranties expressly made in the literature accompanying such products;
(ix) which provides for the acquisition, directly or indirectly (by merger or
otherwise), of material assets (whether tangible or intangible) or the capital
stock of another Person; (x) which is a consulting or professional advisor
agreement; (xi) which cannot be terminated without penalty or payment on at
least ninety (90) days' notice; (xii) with any Government; (xiii) which requires
the consent of any other party thereto or triggers a change-of-control provision
therein, in each case in connection with the execution, delivery or performance
of this Agreement or the consummation of the transactions contemplated hereby;
(xiv) which
14
provides for any construction on or about any part of the Real Property which
construction has not been completed or was completed not more than eighteen
months prior to the date of this Agreement or which involves the provision of
construction services, labor or materials for which the applicable period for
filing or attachment of a mechanics or materialmens or similar lien or notice of
lien has not yet expired; or (xv) which is not made in the ordinary course of
business and which is to be performed at or after the date of this Agreement
(together, the "Significant Contracts").
(b) To the Company's Knowledge, no Significant Contract has been breached
or cancelled by the other party and nor is there any anticipated breach by any
other party to any Significant Contract. The Company and each Subsidiary has
performed all the obligations required to be performed by it in connection with
the Significant Contracts and is not in default under or in breach of any
Significant Contract, and no event has occurred which with the passage of time
or the giving of notice or both would result in a default or breach thereunder.
Each Significant Contract is legal, valid, binding, enforceable and in full
force and effect and to the Company's Knowledge shall continue as such following
the consummation of the transactions contemplated hereby.
(c) The Company has provided the Investor with a true and correct copy of
all written Significant Contracts which are required to be disclosed on Schedule
3.14, in each case together with all amendments, waivers or any other changes
thereto (all of which are disclosed on Schedule 3.14) and there are no oral
Significant Contracts. Except as set forth on Schedule 3.3, no consent is
required, and no change of control provisions are triggered, with respect to any
of the Significant Contracts in connection with the execution, delivery and
performance of this Agreement and the consummation of the transactions
contemplated hereby.
(d) The BASF Services Agreement is in full force and effect in accordance
with its terms and the Related Agreements (as defined therein) have been entered
into and are in full force and effect.
3.15 Litigation. Except as set forth on Schedule 3.15, there is no
litigation, suit, proceeding, action, claim, demand or investigation, at law or
in equity, pending or, to the Company's Knowledge, threatened against or
affecting the Company or any Subsidiary before any court, agency, authority or
arbitration tribunal. Except with respect to Environmental and Safety Matters
set forth in Section 3.18 below and as disclosed therein, and except as set
forth on Schedule 3.15, neither the Company nor any Subsidiary received any
opinion or legal advice in writing to the effect that it is exposed from a legal
standpoint to any Liability or disadvantage which may be material to the
business of the Company or any Subsidiary as presently or proposed to be
conducted. To the Company's Knowledge, there are no facts that would likely
result in any such litigation, suit, proceeding, action, claim or investigation.
Neither the Company nor any Subsidiary is subject to or in default with respect
to any notice, order, writ, injunction or decree of any court, agency, authority
or arbitration tribunal.
3.16 Compliance with Laws. Except with respect to Environmental and Safety
Matters set forth in Section 3.18 below and as disclosed therein, to the
Company's Knowledge:
15
(a) Each of the Company and the Subsidiaries are currently in material
compliance with all laws, regulations, rules, orders, permits, judgments,
decrees and other requirements and policies imposed by any Government Authority.
Neither the Company nor any Subsidiary has received any notice or citation for
noncompliance with any of the foregoing, and there exists no condition,
situation or circumstance, which, after notice or lapse of time, or both, would
constitute noncompliance with or give rise to future Liability with regard to
any of the foregoing. Neither the Company, nor any Subsidiary, nor any of the
employees, partners, principals, agents or assignees of the Company or any
Subsidiary have committed (or taken any action to promote or conceal) any
violation of the Foreign Corrupt Practices Act, 15 U.S.C. sections 78dd-1, -2.
The Company and the Subsidiaries have all material licenses, permits, approvals,
qualifications or the like, from any Government, Government Authority or any
Person necessary for the conduct of their business and all such items are in
full force and effect. Schedule 3.16 sets forth all material licenses and
permits, other than environmental licenses and permits set forth on Schedule
3.18A, held by the Company which terminate or become renewable at any time prior
to the first anniversary of the date of this Agreement and, except as set forth
on Schedule 3.16, there are no facts or circumstances in existence which are
reasonably likely to prevent the Company or any Subsidiary from renewing each
such license and permit.
(b) The Company is not an investment company as defined under the
Investment Company Act of 1940, as amended and is not relying on Section 3(c)(1)
or 3(c)(7) of such act in making such determination.
3.17 [reserved]
3.18 Environmental and Safety Matters.
A. Factual Disclosure.
To the Company's Knowledge, Schedule 3.18A sets forth an accurate
and complete list of each of the following:
(a) All current material permits required pursuant to Environmental Laws
in connection with the ownership or operation of the business and assets of the
Company and Subsidiaries.
(b) All material reports and filings required pursuant to applicable
Environmental Law or Orders, including without limitation all notices submitted
in compliance with Environmental Laws indicating the past or present Release (as
defined in Section 11.1 of the Agreement), generation, treatment, storage or
disposal of Hazardous Substances (as defined in Section 11.1 of the Agreement)
in connection with the ownership or operation of the business or assets of the
Company and Subsidiaries during the Company's ownership of such Subsidiaries or
assets.
(c) All above-ground storage tanks in excess of 100-barrel capacity and
underground storage tanks now located on the Land or at the Facilities, together
with a description of the materials currently stored therein (if any).
16
(d) All material reports of audits or other investigations conducted by or
in the possession, custody or control of the Company or a Subsidiary as to
environmental matters in connection with the Company's and the Subsidiaries'
assets and properties, while owned by any of them, and copies thereof have been
provided to Investor or Investor's consultants.
(e) All locations at which any Hazardous Substances generated in
connection with the ownership or operation of the Company's or Subsidiaries'
business or its assets, while owned by any of them, have been disposed that
would result in a material Liability.
(f) All Institutional Controls that have been imposed or recorded in any
public document with respect to any Facility, or that are proposed by the
Company, any Subsidiary or any Governmental Authority.
(g) All Engineering Controls that have been implemented or installed at
any Facility, or that are proposed by the Company, any Subsidiary or any
Governmental Authority.
(h) All Orders issued pursuant to Environmental Law presently in effect
relating to the Company's or Subsidiaries' business or its assets.
B. Representations. To the Company's Knowledge and to the extent any
of the following are material, except as set forth on Schedule 3.18B,
(a) neither the Company nor any Subsidiary is in violation of any
Environmental Law and neither the Company nor any Subsidiary has been notified
in writing by any third party (including any governmental entity) that it is
potentially liable under any Environmental Law (excluding any violations that
have been fully corrected).
(b) the Company and the Subsidiaries have all permits required pursuant to
Environmental Laws in connection with the ownership or operation of its business
and assets, all such permits are in full force and effect, no action or
proceeding to revoke, limit or modify any such permits is pending and the
ownership and operation of its business and assets is in compliance in all
respects with all terms and conditions thereof.
(c) each of the Company and the Subsidiaries has accurately prepared and
timely filed with the appropriate jurisdictions all reports and filings required
pursuant to applicable Environmental Law or Orders, including without limitation
all notices required under Environmental Laws indicating the past or present
Release (as defined in Section 11.1 of the Agreement), generation, treatment,
storage or disposal of Hazardous Substances (as defined in Section 11.1 of the
Agreement) in connection with the ownership or operation of its business or
assets.
(d) other than as set forth on Schedule 3.18B, neither the Company nor any
Subsidiary has entered into any written agreement, other than non-material
purchase right of ways, servitudes, lease and operating agreements, with any
governmental authority or any other person by which the Company or any
Subsidiary has assumed responsibility, either directly or as a guarantor or
surety, for the remediation of any condition arising from or relating to a
Release or threatened Release of Hazardous Substances into the Environment (as
defined in Section 11.1 of the Agreement).
17
(e) neither the Company nor any Subsidiary has received any material claim
or demand in writing (not listed on Schedule 3.18A) from any Governmental
Authority or any other person alleging, a Release or threatened Release of
Hazardous Substances into the Environment at, on, in or under any of its assets,
or arising in any way out of the ownership or operation of the business and
assets of the Company and the Subsidiaries, excluding claims or demands that
have been resolved.
(f) notwithstanding any information contained in the documents listed on
the Schedules attached hereto, or in the information provided to the Investor or
its consultants, neither the Company nor the Subsidiaries make any
representations or warranties concerning the cost of remediating any of the
Personal Property or Real Property or other fixtures or assets.
(g) neither the Company nor any Subsidiary is in breach of any Order
issued pursuant to Environmental Law.
3.19 Insurance. Schedule 3.19 lists and briefly describes each insurance
policy maintained by or on behalf of the Company or any Subsidiary. The Company
has provided copies to the Investor of all such insurance policies. All of such
insurance policies are in full force and effect, and neither the Company nor any
Subsidiary is in default with respect to its obligations under any such
insurance policies. The Company and the Subsidiaries are current in all of their
premiums for such insurance policies. To the Company's Knowledge, there has been
no threatened termination of any such policies.
3.20 Intellectual Property. To the Company's Knowledge, (i) the Company
and the Subsidiaries have sole title to and ownership of, or possess legally
enforceable rights to use under valid and subsisting written license agreements,
all material Intellectual Property Rights used or proposed to be used in the
conduct of the business of the Company or a Subsidiary as currently conducted
and proposed to be conducted (the "Company Intellectual Property Rights"), and
to the Company's Knowledge, neither the Company nor any Subsidiary has
misappropriated, is in conflict with or is infringing upon the Intellectual
Property Rights of others; and (ii) to the Company's Knowledge, the Company is
the sole and exclusive owner of material Company Intellectual Property Rights
free and clear of any Encumbrances or other rights or claims of others, except
for Intellectual Property Rights specifically designated as not owned by the
Company ("Third Party Intellectual Property Rights") on Schedule 3.20 and to the
extent the Company or a Subsidiary uses any Intellectual Property Rights owned
by a third party, the Company or a Subsidiary, has a license with such third
party for the use of such Intellectual Property Rights, and is not in default
under such license.
3.21 Suppliers and Customers.
(a) Schedule 3.21(a) attached hereto accurately sets forth a list of the
top ten suppliers of goods or services essential to the operation of the
business of the Company or a Subsidiary where such supplier was the sole source
of supply of such good or service for the fiscal year ended December 31, 2005,
showing the good or service provided by each such supplier during such period.
No such supplier (i) has terminated or to the Company's Knowledge threatened to
terminate, its relationship with the Company or a Subsidiary or (ii) has during
the last twelve (12) months materially decreased, limited, or changed the terms
and conditions detrimentally for, the supply of its goods or services to the
Company or a Subsidiary, or to the Company's
18
Knowledge threatened to do so, and to the Company's Knowledge there is no
written or oral communication, fact, event or action which exists or has
occurred which would indicate that any such supplier of the Company or a
Subsidiary would do so, whether as a result of the transaction contemplated
hereby or otherwise.
(b) Schedule 3.21(b) attached hereto accurately sets forth a list of the
top ten customers of the Company and the Subsidiaries on a combined basis by
revenue for the fiscal year ended December 31, 2005, showing the approximate
aggregate revenues of the Company and the Subsidiaries on a combined basis from
each such customer during such period. No such customer has terminated or to the
Company's Knowledge threatened to terminate, its relationship with the Company
or a Subsidiary or has during the last twelve (12) months materially decreased,
limited or otherwise detrimentally changed the terms and conditions for, the
purchase of goods or services from the Company or a Subsidiary, or to the
Company's Knowledge threatened to do so, and to the Company's Knowledge there is
no written or oral communication, fact, event or action which exists or has
occurred which would indicate that any such customer of the Company or a
Subsidiary would do so, whether as a result of the transaction contemplated
hereby or otherwise.
3.22 Related Party Transactions.
(a) Except as set forth on Schedule 3.22 and except for transactions
between the Company and its Subsidiaries or between Company Subsidiaries,
neither the Company nor any Subsidiary is a party to any Contract or other
commitment or transaction with any Current Owner, any Affiliate of any Current
Owner, any officer, director, or employee of the Company or any Subsidiary or,
any individual related by blood, marriage or adoption to any such individual or
any entity in which such person or individual owns any beneficial interest (each
of the parties in the foregoing sentence, a "Related Party," and collectively
"Related Parties"), nor do any Related Parties have any legal or beneficial
interest in the assets or property owned or used by the Company or any
Subsidiary, in any Contracts to which the Company or any Subsidiary is a party,
or in any other Person with which the Company or any Subsidiary is or has been
party to a Contract. All Contracts, commitments and transactions disclosed in
Schedule 3.22 are on arms-length terms. Except as in relation to the Contracts,
commitments and transactions disclosed in Schedule 3.22,there are no
outstanding, claims, accounts payable or receivable, intercompany loans,
indebtedness, or other Liabilities, between the Company or any Subsidiary, on
the one hand and any Related Parties on the other.
(b) Total cash or in-kind payments of any kind made by the Company or any
Subsidiary to any Related Party between the Balance Sheet Date and the Closing
have not exceeded $6.6 million on a net basis, exclusive of reasonable,
arms-length payments for services rendered.
(c) At Closing, except for the Special Dividend, no other dividends have
been declared by the Company that remain unpaid.
3.23 Brokers. Except for a fee of $5.0 million payable to ▇▇▇▇▇▇▇▇ &
Company, Inc. by a Subsidiary upon Investor paying the Subscription Price, no
Person has or will have, as a result of the transactions contemplated by this
Agreement, any right, interest or claim against or upon
19
the Investor, the Company or any Subsidiary for any commission, fee or other
compensation payable as a finder or broker because of any act or omission by the
Company or any Subsidiary.
3.24 Disclosure. To the Company's Knowledge, no representation or warranty
by the Company contained in this Agreement, and no representation, warranty or
statement contained in any list, certificate, schedule or other instrument,
document, agreement or writing furnished or to be furnished to, or made with,
the Investor pursuant hereto, contains or will contain any material untrue
statement of a fact or omits or will omit to state any material fact necessary
to make any statement herein or therein not misleading.
3.25 Operational Data. To the Company's Knowledge, all Operational Data
provided by the Company or a Subsidiary to the Investor is materially true and
correct.
3.26 Capital Expenditure Commitments. Schedule 3.26 provides a complete
list of capital expenditures not otherwise included in the IMTT budget provided
to Investor on February 24, 2006 required to be undertaken by the Company or a
Subsidiary as a condition precedent to or condition subsequent to the
commencement of any existing contract with any customer.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF THE CURRENT OWNERS
Each of the Current Owners, jointly and severally, represents only
and warrants only to the following to the Investor, as of the date hereof and as
of the Closing Date:
4.1 Power. Each of the Current Owners is an individual and is of majority
age and sound mind.
4.2 Authority for Agreement. Each of the Current Owners has full power,
authority and legal right to enter into this Agreement and the other documents
contemplated hereby to which such Current Owners are a party and to consummate
the transactions contemplated hereunder. This Agreement and the other documents
contemplated hereby to which each Current Owner is a party have been duly
executed and delivered by such Current Owners and are legal, valid and binding
obligations of such Current Owners, enforceable against such Current Owners in
accordance with their respective terms, except as enforceability may be limited
by applicable bankruptcy, insolvency, reorganization, moratorium or other
similar laws affecting the enforcement of creditors' rights in general.
4.3 No Violation to Result. The execution, delivery and performance by
each Current Owner of this Agreement and the other documents contemplated hereby
and the consummation by each Current Owner of the transactions contemplated
hereby and thereby and the fulfillment by each Current Owner of the terms hereof
and thereof: (i) are not in violation or breach of, do not conflict with or
constitute a default under, and shall not accelerate or permit the acceleration
of the performance required by, any note, debt instrument, security agreement or
mortgage, or any other contract or agreement, written or oral, to which such
Current Owners are a party or by which such Current Owners are bound; (ii) shall
not be an event which, after notice or lapse of
20
time or both, will result in any such violation, breach, conflict, default, or
acceleration; and (iii) shall not result in a violation under any law, judgment,
decree, order, rule, regulation, permit or other legal requirement of any
Government Authority applicable to such Current Owner. No notice to, filing
with, or consent of, any Person is necessary for the execution, delivery or
performance by any Current Owner of this Agreement and the other documents
contemplated hereby or the consummation by any Current Owner of the transactions
contemplated hereby or thereby.
4.4 Shares. The Voting Trust for Loving Enterprises, Inc. is the sole
record holder of the issued and outstanding shares of capital stock of the
Company and the individual Current Owners beneficially own such shares. The
interests held by the Voting Trust for Loving Enterprises, Inc. and the Current
Owners in the shares are held free and clear of any hypothecation, assignment,
deposit arrangement, Encumbrance, preference, priority or other security
agreement, warrant, attachment, right of first refusal, preemptive right,
conversion, put, call or other restriction on transfer (other than restrictions
imposed by federal and state securities laws), or preferential arrangement of
any kind or nature whatsoever. The issuance and delivery by the Company of the
Shares to Investor will vest in Investor all right, title, and interest in and
to the Shares, free and clear of all Encumbrances. Except as set forth on
Schedule 3.5, there are no proxies, voting rights, stockholders agreements or
other agreements or understandings with respect to the voting or transfer of the
capital stock of the Company.
4.5 Brokers. No Person has or will have, as a result of the transactions
contemplated by this Agreement, any right, interest or claim against or upon the
Investor, the Company or a Subsidiary for any commission, fee or other
compensation payable as a finder or broker because of any act or omission by any
Current Owner.
4.6 No Other Representations. Notwithstanding anything in this Agreement
to the contrary, the representations and warranties of the Current Owners are
limited to the representations and warranties made in this Article IV.
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF INVESTOR
The Investor represents and warrants to the Current Owners and to
the Company, as of the date hereof and as of the Closing Date, as follows:
5.1 Organization. The Investor is a limited liability company, duly
formed, validly existing and in good standing under the laws of the State of
Delaware and is authorized to do business in each jurisdiction where the
character or location of its assets or properties owned, leased or operated by
it or the nature of its activities makes such qualification necessary. The
Investor has full corporate power and authority and all material licenses,
permits and authorizations necessary to own and operate its properties, to carry
on its business as now conducted and presently proposed to be conducted.
5.2 Authority for Agreement. The Board of Directors, managers or other
governing authority of the Investor and/or Macquarie Infrastructure Company LLC
has duly approved this
21
Agreement and the other documents contemplated hereby and the transactions
contemplated hereby and thereby and have authorized the execution, delivery and
performance of this Agreement and the other documents contemplated hereby and
the consummation of the transactions contemplated hereby and thereby. The
Investor has full company power, authority and legal right to enter into this
Agreement and the other documents contemplated hereby and to consummate the
transactions contemplated hereby and thereby. No other company proceedings on
the part of the Investor are necessary to approve and authorize the execution,
delivery and performance of this Agreement and the other documents contemplated
hereby and the consummation of the transactions contemplated hereby and thereby.
This Agreement and the other documents contemplated hereby to which Investor is
a party have been duly executed and delivered by the Investor and are legal,
valid and binding obligations of the Investor, enforceable against the Investor
in accordance with their respective terms, except as enforceability may be
limited by applicable bankruptcy, insolvency, reorganization, moratorium or
similar laws affecting the enforcement of creditors' rights in general.
5.3 No Violation to Result. Except as set forth on Schedule 5.3, the
execution, delivery and performance by the Investor of this Agreement and the
other documents contemplated hereby and the consummation by the Investor of the
transactions contemplated hereby and thereby and the fulfillment by the Investor
of the terms hereof and thereof: (i) are not in violation or breach of, do not
conflict with or constitute a default under, and shall not accelerate or permit
the acceleration of the performance required by, any of the terms of the
Certificate of Formation or Operating Agreement of the Investor or any note,
debt instrument, security agreement or mortgage, or any other contract or
agreement, written or oral, to which the Investor is a party or by which the
Investor is bound; (ii) shall not be an event which, after notice or lapse of
time or both, will result in any such violation, breach, conflict, default, or
acceleration; (iii) shall not result in a violation under any law, judgment,
decree, order, rule, regulation, permit or other legal requirement of any
Government Authority applicable to the Investor or to the Investor's Knowledge,
the transactions contemplated herein; and (iv) shall not result in the creation
or imposition of any Encumbrance, possibility of Encumbrance, or restriction in
favor of any third Person upon any of the properties or assets of the Investor.
Other than as set forth on Schedule 5.3, no notice to, filing with, or consent
of, any Person is necessary for the execution, delivery or performance by the
Investor of this Agreement and the other documents contemplated hereby or the
consummation by the Investor of the transactions contemplated hereby or thereby.
5.4 Compliance with Laws. To the Investor's Knowledge, Investor has made
or will make prior to the Closing, all filings and registrations and has
otherwise complied with all laws, regulations, rules, orders, permits,
judgments, decrees and other requirements and policies imposed by any
Governmental Authority, the Investor has not received any notice or citation for
noncompliance with any of the foregoing, and to the Investor's Knowledge, there
exists no condition, situation or circumstance, nor has there existed such a
condition, situation or circumstance, which, after notice or lapse of time, or
both, would constitute noncompliance with or give rise to future liability in
connection with the Transaction. To the Investor's Knowledge, neither the
Investor, nor any of the employees, agents or assignees of the Investor have
committed (or taken any action to promote or conceal) any violation of the
Foreign Corrupt Practices Act, 15 U.S.C. sections 78dd-1, -2, and the Investor,
as it relates to its investment, has
22
all licenses, permits, approvals, qualifications or the like, from any
Government, Government Authority or any Person necessary for the consummation of
this Transaction.
5.5 Brokers. No Person has or will have, as a result of the transactions
contemplated by this Agreement, any right, interest or claim against or upon any
of the Current Owners or the Company for any commission, fee or other
compensation payable as a finder or broker because of any act or omission by the
Investor.
ARTICLE VI
ADDITIONAL AGREEMENTS
6.1 Access to Properties and Records. From the date of this Agreement the
Company shall (i) furnish to Investor such information as reasonably requested
by Investor to enable Investor to monitor the performance of the Company and the
Subsidiaries; and (ii) provide to and procure for Investor and its agents and
consents to the public release of all information, access and third party
consents as required to enable the Investor and/or its ultimate parent entity in
its reasonable judgment, to satisfy its disclosure obligations relating to the
Transaction arising under applicable securities law or stock exchange
regulations and to facilitate the dissemination of information relating to the
Transaction by the investor relations department of Macquarie Infrastructure
Company Trust.
6.2 Interim Covenants.
(a) From the date of this Agreement until the Closing Date, except to the
extent expressly permitted by this Agreement or otherwise consented to by an
instrument in writing signed by the Investor or as otherwise set forth in
Schedule 6.2, the Company shall (i) keep intact the Company and the Subsidiaries
and their businesses, as they are presently being conducted and as they are
proposed to be conducted, and shall not take or permit to be taken or do or
suffer to be done anything other than in the ordinary course of their business
as the same is presently being conducted; and (ii) not take any action of the
type set forth in Section 3 of the Shareholders' Agreement as requiring the
approval of the Investor Representative, the Board of Directors of the Company
or the Investor.
(b) From the date of this Agreement until the Closing Date, the Current
Owners shall cause Sections 4.1, 4.2, 4.3, 4.4 and 4.5 to continue to be true
and correct.
6.3 Publicity. The Investor and the Company shall agree with each other as
to the form and substance of any press release related to this Agreement or the
transactions contemplated hereby, and shall consult with each other as to the
form and substance of other public disclosures related thereto; provided,
however, that nothing contained herein shall prohibit any Party or its ultimate
parent entity hereto from making any disclosure required by applicable laws or
regulations or as required in its reasonable judgment to facilitate the
dissemination of information relating to the Transaction by the investors
relations department of Macquarie
23
Infrastructure Company Trust, after notice to the other Party with the
opportunity to comment to the extent that delay of the disclosure is permitted
under applicable laws or regulations.
6.4 No Solicitation. Neither the Company, nor any Subsidiary, nor any
Current Owner, nor any agent, officer, director or any representative thereof,
shall during the period commencing on the date of this Agreement and ending with
the earlier to occur of the Closing or the termination of this Agreement in
accordance with its terms, directly or indirectly: (a) solicit, accept, approve,
encourage, initiate, or respond to the submission of proposals or offers from
any person or entity for, (b) participate in any discussions or negotiations
pertaining to, or (c) furnish any information to any person or entity, other
than the Investor, relating to, any acquisition or purchase of all or a material
amount of the assets of, or any equity interest in, the Company or any
Subsidiary or a merger, consolidation or business combination involving the
Company or any Subsidiary. If the Company, a Subsidiary or any Current Owner
receives any unsolicited offer or proposal relating to any of the above, the
Company or such Current Owner shall immediately notify the Investor thereof,
including the identity of the party making such offer or proposal and the
specific terms of such offer or proposal, and provide the Investor with a copy
thereof; provided that such offer or proposal is not subject to a
Confidentiality Agreement entered into prior to the date hereof.
6.5 Notification of Certain Matters. The Company shall give prompt notice
to the Investor of (a) the occurrence or non-occurrence of any event the
occurrence or non-occurrence of which would be likely to cause any
representation or warranty of the Company contained herein to be untrue or
inaccurate in any material respect at or prior to the Closing and (b) any
material failure of the Company or the Subsidiaries to comply with or satisfy
any covenant, condition or agreement to be complied with or satisfied by the
Company hereunder. The delivery of any notice pursuant to this Section 6.5 shall
not, without the express written consent of the Investor, be deemed to (x)
modify the representations or warranties hereunder of the Company, (y) modify
the conditions set forth in Article VII or (z) limit or otherwise affect the
remedies available hereunder to the Investor.
6.6 Tax Matters. The Company shall pay any transfer, documentary, stamp,
registration, or similar Taxes associated with the issuance of the Shares to
Investor.
6.7 ISRA Filing. The Company shall promptly (but in no event less than 21
days prior to the anticipated Closing Date) file with the NJDEP an application
requesting that a "letter of non-applicability" be issued with respect to the
transactions contemplated herein.
6.8 HSR Filings. Investor and Company will, as promptly as practicable
following the execution and delivery of this Agreement, file with the Federal
Trade Commission and the Department of Justice the notification and report
forms, if any, required for the transactions contemplated hereby pursuant to the
HSR Act requesting, unless otherwise directed by the Investor, early termination
of the waiting period under the HSR Act. Any such notification and report forms
will be in substantial compliance with the requirements of the HSR Act. Each
Party shall furnish to the other Party such necessary information and reasonable
assistance as the other may request in connection with its preparation of any
filing or submission which is necessary under the HSR Act. Each Party shall keep
the other apprised of the status of any
24
communications with, and inquiries or requests for additional information from,
the Federal Trade Commission and Department of Justice. Each of the Investor and
the Company shall pay (or reimburse the other for) one half of all filing fees
applicable to the notification and report forms filed pursuant to the HSR Act
(the "HSR Fees").
6.9 Reasonable Efforts. In addition to the covenants set forth in Section
6.8 above, each of the Parties agrees to use all reasonable efforts promptly to
take, or cause to be taken, all actions and do or cause to be done, all things
necessary, proper or advisable under applicable laws and regulation to (a)
obtain all consents, approvals or actions of, make all filings with and give all
notices to Government Authorities or any other public or private third parties
required of the Investor, the Company or any Current Owner to consummate the
Transaction and the other matters contemplated hereby, (b) provide such other
information and communications to such Government Authorities or other public or
private third parties as the other Party or such Government Authorities or other
public or private third parties may reasonably request in connection therewith,
and (c) consummate and make effective the transactions contemplated by this
Agreement including the satisfaction of all conditions hereto.
6.10 Post Closing Review. For a period of thirty (30) days following the
Closing Date, the Investor shall have the right to have its accountants review
the statement provided pursuant to Section 7.6(c) and any Contracts,
transactions or arrangements with Related Parties existing after the Closing,
and the Company and the Subsidiaries shall provide the Investor's accountants
with access to all Company and Subsidiary books and records for the purposes of
conducting such review.
6.11 Benefit Matters. On or before the Closing or, if one or more of such
actions is not legally or practically possible by such date, then such action(s)
that does not occur on or before the Closing, shall occur as soon as possible
following the Closing (but in any event within six months after Closing), the
Company shall terminate from participation as a participating employer in each
of its employee benefit plans, as defined in Section 3(3) of ERISA, each
employer that is not a member of the Company's controlled group or a trade or
business under common control with the Company, within the meaning of Section
414(b) or (c) of the Code, as determined immediately following the Closing (a
"Post-Closing Group Member") and shall terminate as a participant each
individual who is not an employee of the Company or a Post-Closing Group Member
or a beneficiary of such an employee. In connection with termination of
participation of participating employers that are not members of the
Post-Closing Group from the Company's employee pension benefits plans, within
the meaning of Section 3(2) of ERISA, the Company shall facilitate the spin-off
of assets and liabilities to other plans for the benefit of the employees of the
terminated employers and in the case of a defined benefit pension plan, the
assets spun-off shall include an equitable share of the plan's funding based on
the plan's actuarial assumptions used for funding purposes on an ongoing plan
basis or such other amount if so required by law.
6.12 Further Assurances. Following the Closing, each of the Parties shall,
from time to time, execute and deliver such additional instruments, documents,
conveyances or assurances and take such other actions as shall be reasonably
necessary, or otherwise reasonably requested by the Investor or the Company, as
the case may be, to confirm and assure the rights and
25
obligations provided for in this Agreement and render effective the consummation
of the transactions contemplated hereby.
ARTICLE VII
CONDITIONS TO THE INVESTOR'S OBLIGATIONS
All obligations of the Investor under this Agreement are subject to
the fulfillment and satisfaction, prior to or at the time at which the Closing
Date is scheduled to occur, of each of the following conditions precedent, any
one or more of which may be waived, in part or in full, by the Investor in
writing.
7.1 Representations and Warranties True at the Closing Date. All of the
representations and warranties of the Company contained in this Agreement shall
be true, correct and complete on and as of the Closing Date with the same effect
as though such representations and warranties had been made on and as of such
date. All of the representations and warranties of the Current Owners as set
forth in Article IV shall be true, correct and complete on and as of the Closing
Date with the same effect as though such representations and warranties had been
made on and as of such date.
7.2 Performance. All of the terms, covenants, agreements and conditions of
this Agreement to be complied with, performed or satisfied by the Company or any
Current Owner on or before the Closing Date shall have been duly complied with,
performed or satisfied on or before such date.
7.3 No Litigation. No temporary restraining order, preliminary or
permanent injunction or other order issued by any court of competent
jurisdiction or other legal or regulatory restraint or provision challenging the
transactions contemplated hereunder or limiting or restricting the conduct or
operation of the Company or any Subsidiary following the Closing shall be in
effect, nor shall any proceeding brought by an administrative agency or
commission or other Government Authority or other instrumentality, domestic or
foreign, seeking any of the foregoing be pending.
7.4 Governmental, Regulatory and Other Consents and Approvals. All
consents, approvals and actions of, filings with and notices to any Government
Authority or any other public or private third parties required by the Company
to consummate the Closing and the other matters contemplated hereby shall have
been obtained, including, without limitation, the expiration or termination
without the objection of any of the relevant federal authorities of all
applicable waiting periods (and any extensions thereof) under the HSR Act.
7.5 Audit. The Company will have delivered audited Year-End Financials
(accompanied by an unqualified opinion of the Company's auditors) in a form in
all respects materially the same as the draft Year-End Financials (including the
notes thereto) provided to Investor on April 5, 2006 and in a form as will
enable the Investor or its ultimate parent entity, in its reasonable judgment,
to use such audited Year-End Financials to satisfy any disclosure obligations
relating to the Transaction arising under applicable securities law or stock
exchange regulations. The Company shall also have procured all necessary third
party consents to the
26
public disclosure of the audited Year-End Financials by Investor and/or its
direct and/or indirect parent entities.
7.6 Closing Deliveries of the Company. At the Closing, the Company, shall
perform and deliver the following, subject to waiver, in part or in full, by the
Investor:
(a) the Company shall issue and deliver the certificate(s) representing
the (the "Shares") Shares pursuant to Section 1.1 hereof, all of which shall be
duly authorized and validly issued, fully paid and non-assessable, free and
clear of any Encumbrance;
(b) the Company shall deliver an officer's certificate stating that the
representations and warranties of the Current Owners and the Company, as
applicable, contained in this Agreement and in any certificate delivered
pursuant hereto are true, correct and complete in all respects and that the
covenants and other agreements of such Current Owners or the Company, as
applicable, required by this Agreement to be complied with, performed or
satisfied have been complied with, performed or satisfied in all respects;
(c) the Company shall deliver an officer's certificate setting forth (i)
details of all of the dividends, distributions or other cash and in-kind
payments made to any Related Parties by the Company or a Subsidiary since the
Balance Sheet Date, (ii) details of all of the dividends, distributions or other
cash and in-kinds payments made by any Related Parties to the Company or a
Subsidiary since the Balance Sheet Date and (iii) details of all dividends
declared on Company Common Stock held by the Current Owners and unpaid as of the
Closing;
(d) the Company shall deliver a certificate of its secretary, setting
forth the resolutions of its board of directors and stockholders (or other
evidence reasonably satisfactory to the Investor) authorizing the execution,
delivery and performance of this Agreement and the other documents contemplated
hereby and the consummation of the transactions contemplated hereby and thereby,
and certifying that such resolutions have not been amended or rescinded and are
in full force and effect;
(e) the Company shall deliver a good standing certificate from the
jurisdiction of its incorporation, and its certified charter documents, each
dated as of a date reasonably close to the date hereof;
(f) the Company shall deliver all consents, licenses, permits and
approvals as set forth on Schedule 3.3, each as required in connection with the
execution, delivery, performance, validity and enforceability of this Agreement
and the continued conduct of the business of the Company as conducted or
proposed to be conducted as of the Closing;
(g) the Company shall have delivered written unconditional waivers and
estoppels from all lenders to the Company or any Subsidiary waiving such
lender's rights to mandatory prepayment or to call an event of default (as
applicable) as a consequence of the Transaction and all consents required from
lenders to the Company and/or any Subsidiary to permit the necessary
Subsidiaries of the borrowers pursuant to the debt facility with DNB NORBank ASA
to guarantee the debt facility with DNB NORBank ASA;
27
(h) the Company shall deliver an opinion of counsel in the form
set forth as Exhibit A attached hereto;
(i) the Company shall have entered into and delivered the
Shareholders' Agreement in the form set forth as Exhibit B attached hereto;
(j) the Company shall have amended its Articles of Incorporation to (i)
eliminate all existing rights of first refusal, (ii) establish the Shareholders'
Agreement as the controlling instrument regarding corporate governance and (iii)
authorize an additional 1,000 shares of common stock of the Company, par value
$100 per share, in the form attached hereto as Exhibit C;
(k) the Company shall have adopted Bylaws in the form attached
hereto as Exhibit D; and
(l) the Guaranty Agreement, dated May 26, 2005 by International
Tank Terminals, L.L.C. with AmSouth Bank shall have been terminated and no
guarantee involving assets of the Company or any Subsidiary shall have been
agreed to in replacement thereof.
7.7 Closing Deliveries of the Current Owners. At the Closing, each
of the Current Owners shall have entered into and delivered the Shareholders'
Agreement in the form set forth as Exhibit B attached hereto.
7.8 ISRA Determination. The Company shall have received a letter
of non-applicability from the NJDEP in a form acceptable to Investor.
7.9 ERISA Conditions.
(a) The administrator of each defined benefit pension plan subject to
the reportable event requirements of Section 4043 of ERISA shall have timely
filed all such reports required to be filed prior to the closing under Section
4043 of ERISA, whether required by reason of the transactions contemplated by
this Agreement or otherwise, and in the event that a report would be required
under Section 4043 of ERISA but for the fact that the reporting requirement has
been waived, the Company shall identify the basis for such waiver and shall
deliver an opinion of the plan's enrolled actuary that the plan is eligible for
such waiver.
(b) The Company shall have obtained a release of claims from ▇▇▇▇▇▇
▇▇▇▇▇▇▇ and each other participant in the Company's Supplemental Nonqualified
Defined Contribution Plan whose benefits under the Supplemental Nonqualified
Defined Contribution Plan as calculated by The Principal insurance company have
been limited or are likely to be limited in the future by the application of a
limitation based on Section 415 of the Code. The release of claims required by
the prior sentence shall contain an acknowledgment of the participant that
benefits under the Supplemental Nonqualified Defined Contribution Plan as
calculated by The Principal insurance company are determined by applying a
limitation based on Section 415 of the Code and shall release the Company and
each fiduciary of the Supplemental Nonqualified Defined Contribution Plan from
any claim to an additional benefit amount based on other than the method used by
The Principal.
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7.10 Each of the Company, the Subsidiaries and any Company Group shall
have filed all Tax Returns it is or will be required to file with respect to any
taxable year beginning before January 1, 2005.
7.11 After due consultation between the Company and the Investor, the
Company shall certify in writing that it is willing and able to meet its
reporting obligations to Investor pursuant to this Agreement and the
Shareholders' Agreement.
7.12 The Company shall have used reasonable efforts to locate the
minute book for High Horizons, Inc. and the stock certificates evidencing
ownership of Bayonne Industries, Inc., East Jersey Railroad & Terminal Company,
Inc., and IMTT - Quebec, Inc. In the event that the minute book for High
Horizons, Inc., is not located and presented to the Investor for inspection,
then Section 3.4(b) hereof shall be deemed to include the same representations
with respect to High Horizons, Inc. as are made with respect to St. Rose of
Texas, Inc. and St. Rose of Miami, Inc.. In the event that any of the stock
certificates mentioned in this Section 7.12 are not located and presented to the
Investor for inspection, then the Company shall provide the Investor, for each
stock certificate not located, an affidavit of lost share certificate in a form
reasonably acceptable to the Investor.
ARTICLE VIII
CONDITIONS TO THE COMPANY'S AND THE CURRENT OWNERS'
OBLIGATIONS
All obligations of the Company and the Current Owners under this
Agreement are subject to the fulfillment and satisfaction, prior to or at the
time at which the Closing Date is scheduled to occur, of each of the following
conditions precedent, any one or more of which may be waived, in part or in
full, by the Company in writing.
8.1 Representations and Warranties True at the Closing Date. All of the
representations and warranties of the Investor contained in this Agreement shall
be true, correct and complete on and as of the Closing Date with the same effect
as though such representations and warranties had been made on and as of such
date.
8.2 Performance. All of the terms, covenants, agreements and conditions
of this Agreement to be complied with, performed or satisfied by the Investor on
or before the Closing Date shall have been duly complied with, performed or
satisfied on or before such date.
8.3 No Litigation. No temporary restraining order, preliminary or
permanent injunction or other order issued by any court of competent
jurisdiction or other legal or regulatory restraint or provision challenging the
transactions contemplated hereunder shall be in effect, nor shall any proceeding
brought by an administrative agency or commission or other governmental
authority or instrumentality, domestic or foreign, seeking any of the foregoing
be pending.
8.4 Closing Deliveries of the Investor. At the Closing, the Investor
shall perform and deliver the following, subject to waiver, in part or in full,
by the Company:
29
(a) the Investor shall deliver an officer's certificate stating that
the representations and warranties of the Investor contained in this Agreement
and in any certificate delivered by the Investor pursuant hereto are true,
correct and complete in all respects and that the covenants and other agreements
of the Investor required by this Agreement to be complied with, performed or
satisfied have been complied with, performed or satisfied in all respects;
(b) the Investor shall deliver a certificate of its secretary, setting
forth the resolutions of its board of directors (or other evidence reasonably
satisfactory to the Company) authorizing the execution and delivery of this
Agreement and the documents contemplated hereby and the consummation of the
transactions contemplated hereby and thereby, and certifying that such
resolutions have not been amended or rescinded and are in full force and effect;
(c) the Investor shall have entered into and delivered the
Shareholders' Agreement in the form set forth as Exhibit C attached hereto; and
(d) the Investor shall deliver and pay the Subscription Price in
accordance with Section 1.2 hereof at the Closing.
8.5 Governmental, Regulatory and Other Consents and Approvals. All
consents, approvals and actions of, filings with and notices to any Government
Authority or any other public or private third parties required of the
Investor to consummate the Closing and the other matters contemplated hereby
shall have been obtained, including, without limitation, the expiration or
termination without the objection of any of the relevant federal authorities
of all applicable waiting periods (and any extensions thereof) under the HSR
Act.
ARTICLE IX
INDEMNITY
9.1 Indemnification.
A. Indemnification by the Company.
(a) The Company, covenants and agrees to indemnify, defend, protect and
hold harmless the Investor and its officers, directors, employees, stockholders,
assigns, successors and subsidiaries (individually, an "Investor Indemnified
Party" and collectively, the "Investor Indemnified Parties") from, against and
in respect of all Damages (as hereinafter defined) suffered, sustained, incurred
or paid by any Investor Indemnified Party, resulting from or arising out of,
directly or indirectly: (i) the breach of any representation or warranty made by
the Company or the Current Owners set forth in this Agreement or in any other
agreement or any inaccuracy in any certificate delivered or provided by or on
behalf of the Company in connection with or related to the transactions
contemplated by this Agreement, (ii) the nonfulfillment of any covenant or
agreement on the part of the Company or the Current Owners set forth in this
Agreement or in any agreement or certificate executed and delivered by the
Company or the Current Owners pursuant to this Agreement or the transactions
contemplated hereby (iii) the participation by persons other than employees of
the Company and its subsidiaries in the
30
employee benefit plans, as defined in Section 3(3) of ERISA, sponsored by the
Company and its subsidiaries, including without limitation any failure by the
Company or the employee benefit plan to comply with applicable laws and
regulations that apply to the plan as a result of such participation.
(b) For purposes of computing the amount payable by the Company to the
Investor Indemnified Party with respect to any Damages suffered under Section
9.1A.(a), (i) if Closing does not occur, the amount payable by the Company to
the Investor Indemnified Party shall equal the amount of Damages suffered under
Section 9.1A.(a) and (ii) if Closing does occur and acknowledging that such a
payment reduces the value of the Company and in turn the value of the Shares
owned by the Investor, the Parties have agreed, the Company will pay the
Investor the "Make-Whole Amount." The Make-Whole Amount shall be two-times the
Damages sustained by the Investor. Set forth on Schedule 9.1A.(b) is an example
of the manner in which the Make-Whole Amount is determined.
B. Indemnification by Investor. The Investor covenants and agrees to
indemnify, defend, protect and hold harmless the Company and its officers,
directors, employees, Shareholders, assigns, successors and subsidiaries
(individually, a "Company Indemnified Party" and collectively, the "Company
Indemnified Parties") from, against and in respect of all Damages (as
hereinafter defined) suffered, sustained, incurred or paid by any Company
Indemnified Party, resulting from or arising out of, directly or indirectly: (i)
the breach of any representation or warranty made by the Investor set forth in
this Agreement or in any other agreement or any certificate delivered or
provided by or on behalf of the Company in connection with or related to the
transactions contemplated by this Agreement or (ii) the nonfulfillment of any
covenant or agreement on the part of the Investor set forth in this Agreement or
in any agreement or certificate executed and delivered by the Investor pursuant
to this Agreement or the transactions contemplated hereby.
9.2 Indemnification Procedures. The terms "Indemnified Party" or
"Indemnified Parties", when appearing without the modifying terms "Company" or
"Investors", shall refer to whichever Party is then seeking indemnification
hereunder. All claims or demands for indemnification under this Article IX
("Claims") against the Party required to provide indemnification hereunder (an
"Indemnifying Party") shall be asserted and resolved as follows:
(a) In the event an Indemnified Party has a Claim against an
Indemnifying Party hereunder which does not involve a claim being asserted
against or sought to be collected by a third party, the Indemnified Party shall
with reasonable promptness send a Claim Notice (as defined in Section 9.2(b))
with respect to such Claim to the Company or the Investor, as the case may be.
If the Indemnifying Party does not notify the Indemnified Party within the
Notice Period (as defined in Section 9.2(b)) that the Indemnifying Party
disputes such Claim, the amount of such Claim shall be conclusively deemed a
liability of the Indemnifying Party. In case the Indemnifying Party shall object
in writing to any Claim made in accordance with this Section 9.2(a), the
Indemnified Party shall have thirty (30) days to respond in a written statement
to the objection of the Indemnifying Party. If after such 30-day period there
remains a dispute as to any Claims, the Parties shall attempt in good faith for
thirty (30) days to agree upon the rights of the respective Parties with respect
to each of such Claims. If the Parties should so agree, a memorandum setting
forth such agreement shall be prepared and signed by both Parties. If no
31
such agreement can be reached after good faith negotiation, either the
Indemnified Party or the Indemnifying Party may resolve such claim solely by
binding arbitration in accordance with the terms of Section 9.8.
(b) In the event that any Claim for which the Company would be liable
to an Indemnified Party hereunder is asserted by a third party (a "Third Party
Claim"), the Indemnified Party shall with reasonable promptness notify the
Indemnifying Party of such Third Party Claim, specifying the nature of such
Third Party Claim and the amount or the estimated amount thereof to the extent
then feasible (which estimate shall not be conclusive of the final amount of
such Claim) (the "Third Party Claim Notice"). The Indemnifying Party shall have
thirty (30) days from the receipt of the Third Party Claim Notice (the "Notice
Period") to notify the Indemnified Party (i) whether or not the Indemnifying
Party disputes their liability to the Indemnified Party hereunder with respect
to such Third Party Claim and (ii) if the Indemnifying Party does not dispute
such liability, whether or not the Indemnifying Party desires, at the sole cost
and expense of the Indemnifying Party, to defend against such Third Party Claim.
In the event that the Indemnifying Party notifies the Indemnified Party within
the Notice Period that the Indemnifying Party does not dispute its obligation to
indemnify hereunder and desires to defend the Indemnified Party against such
Third Party Claim and except as hereinafter provided, the Indemnifying Party
shall have the right to defend by appropriate proceedings, which proceedings
shall be promptly settled or prosecuted by the Indemnifying Party to a final
conclusion; provided that, unless the Indemnified Party otherwise agrees in
writing, the Indemnifying Party may not settle any matter (in whole or in part)
unless such settlement includes a complete and unconditional release of the
Indemnified Party. If the Indemnified Party desires to participate in, but not
control, any such defense or settlement, the Indemnified Party may do so at the
Indemnified Party's sole cost and expense. If the Indemnifying Party elects not
to defend the Indemnified Party against such Third Party Claim, whether by
failure of the Indemnifying Party to give the Indemnified Party timely notice as
provided above or otherwise, then the Indemnified Party, without waiving any
rights against the Indemnifying Party, may settle or defend against any such
Third Party Claim in the Indemnified Party's sole discretion and the Indemnified
Party shall be entitled to recover from the Indemnifying Party the amount of any
settlement or judgment and, on an ongoing basis, all indemnifiable costs and
expenses of the Indemnified Party with respect thereto, including interest from
the date such costs and expenses were incurred.
(c) Notwithstanding the provisions of Section 9.2(b), if at any time,
the Investor or its Affiliates are named as parties to any Third Party Claim,
the Investor shall have the right to control or assume (as the case may be) such
portion of the defense of any such Third Party Claim as is asserted against it
or its Affiliates and the amount of any judgment or settlement and the
reasonable costs and expenses of defense shall be included as part of the
indemnification obligations of the Company hereunder; provided that, if the
Company is also named in such Third Party Claim, unless the Company otherwise
agrees in writing, the Investor may not settle any matter (in whole or in part)
unless such settlement includes a complete and unconditional release of the
Company. If the Investor should elect to exercise its rights under this Section
9.2(c), the Company shall have the right to participate in, but not control, the
defense of such claim or demand at the sole cost and expense of the Company. In
the event that the Investor proposes to settle any Third Party Claim with
respect to which it has exercised its rights under
32
this Section 9.2(c), the Investor shall first obtain the consent of the Company
to the terms of such settlement, which consent shall not be unreasonably
withheld or delayed. If the Company does not consent to the terms proposed by
the Investor for settlement of such Third Party Claim, then the Company's
liability for the Damages to Investor related to the arbitration or litigation
of such Third Party Claim shall be unlimited, regardless of any limits which
would otherwise apply pursuant to Section 9.5 hereof.
(d) Nothing herein shall be deemed to prevent the Indemnified Party
from making a Claim prior to the expiration of a particular representation or
warranty under Section 9.4 for potential or contingent (but not vague or
general) Claims or demands with a reasonable likelihood of occurring provided
the Claim Notice sets forth the specific basis for any such potential or
contingent Claim or demand to the extent then feasible and the Indemnified Party
has reasonable grounds to believe that such a Claim or demand may be made. Such
Claim shall survive the expiration of the particular representation or warranty
to which it relates. If such Claim has not liquidated or progressed to a
lawsuit, and is not otherwise demonstrably progressing toward a lawsuit after
the passage of twelve (12) months after its assertion, such Claim shall cease to
become indemnifiable. Nothing in this paragraph is intended to modify the
schedule upon which indemnification payments are due.
(e) The Indemnified Party's failure to give reasonably prompt notice to
the Indemnifying Party of any actual, threatened or possible claim or demand
which may give rise to a right of indemnification hereunder shall not relieve
the Indemnifying Party of any Liability which the Indemnifying Party may have to
the Indemnified Party unless the failure to give such notice materially and
adversely prejudiced the Indemnifying Party.
9.3 Priority of Payment. For purposes of payment priority, any amounts
that become payable with respect to a Claim shall be paid at the time of but in
priority to the payment of any dividends by the Company as set forth in Section
4(g) of the Shareholders' Agreement.
9.4 Survival of Representations, Warranties and Covenants. Each
covenant and agreement contained in this Agreement or in any agreement or other
document delivered pursuant hereto shall survive the Closing and be enforceable
until such covenant or agreement has been fully performed. All representations
and warranties contained in this Agreement or in any agreement or other document
delivered pursuant hereto shall survive the Closing until the second (2nd)
anniversary thereof and shall thereafter expire, except that (a) any
representation or warranty with respect to which a Claim has been made for a
breach thereon prior to the second (2nd) anniversary of the Closing shall
survive until such Claim is resolved, and (b) Section 3.12 (Taxes), shall
survive until the expiration of the applicable statute of limitations and (c)
Sections 3.5 (Capitalization) and 4.4 (Shares), as well as all claims for fraud
relating to the representations and warranties contained in this Agreement shall
survive without limitation.
9.5 Limitations on Indemnification.
(a) There shall be no liability for Damages for breaches of
representations and warranties or any other agreement or inaccuracy in any
certificate delivered or provided in connection with or related to the
transactions contemplated by this Agreement (other than (i)
33
breaches of Sections 3.1, 3.2, 3.5, 3.22, 3.23, and 4.4, 4.5 which are referred
to herein as "Fundamental Representations" and (ii) as set forth in Section
9.2(c) ("Refused Settlement Liability")), or covenants or any agreements
contained in Article VI hereof (to the extent the breach of such covenant or
agreement is not intentional) unless and until the aggregate amount of all
Damages for all Claims asserted by the Indemnified Parties exceeds $2,000,000;
and then only the amount of Damages that exceed $2,000,000 shall be recoverable
by the Indemnified Parties.
(b) Except with respect to claims relating to Fundamental
Representations and Refused Settlement Liability, the aggregate liability
including the Make-Whole Amount of the Indemnifying Parties with respect to
breaches of representations and warranties, covenants, or any agreement
delivered or provided in connection with or related to the transactions
contemplated by this Agreement (to the extent the breach of such covenant or
agreement is not intentional) or inaccuracy in any certificate shall not exceed
$30,000,000.
(c) Breaches of Fundamental Representations shall be indemnifiable to
the full extent of Damages as will any breaches based on fraud; provided that in
no event will the indemnifiable amount exceed the Subscription Price.
9.6 Waiver, Release and Discharge. Effective upon the Closing and
except for (i) the payment of the Special Dividend, (ii) the indemnity
obligations by the Company in favor of the Current Owners contained in this
Agreement and (iii) third party Claims against the Current Owners relating to
their ownership in the Company, each Current Owner hereby irrevocably waives,
releases and discharges the Company from any and all Liabilities relating to
periods prior to the Closing and obligations to the Current Owner of any kind or
nature whatsoever, whether in his capacity as a Current Owner hereunder, as a
Shareholder, officer or director of the Company or otherwise (including, without
limitation, in respect of rights of contribution or indemnification), in each
case whether absolute or contingent, liquidated or unliquidated, known or
unknown, and whether arising hereunder or under any other agreement or
understanding or otherwise at law or equity, and each Current Owner shall not
seek to recover any amounts in connection therewith or thereunder from the
Company.
9.7 Characterization of Indemnity Payments for Tax Purposes. Unless
otherwise required by applicable law, Investor, the Current Owners and the
Company agree to treat any payment made by the Company hereunder to Investor, if
related to Damages incurred by the Company (and not by the Investor directly),
as an adjustment to the Subscription Price for all Tax purposes, and no Party
shall take any position inconsistent with such characterization.
9.8 Arbitration. The Investor and the Company shall attempt in good
faith in the first instance to amicably settle such claim or demand arising
under this Article IX. If an amicable settlement cannot be reached within
fifteen (15) days after the taking of the steps required by Section 9.2(a)
hereof, the matter shall be submitted for arbitration. All disputes arising
under this Agreement shall be governed by the Commercial Arbitration Rules of
the American Arbitration Association (the "AAA"). Arbitration of disputes shall
proceed as follows:
34
(a) The arbitration shall be heard and determined by three (3)
arbitrators. The Company (without input or control by Investor) and the Investor
each shall appoint an arbitrator of its choice within fifteen (15) days of the
submission of a notice of arbitration. These arbitrators shall in turn appoint a
presiding arbitrator of the tribunal within fifteen (15) days following the
appointment of such arbitrators. Each of the arbitrators shall have the minimum
qualifications set forth below. If the appointed arbitrators cannot reach
agreement on a presiding arbitrator of the tribunal and/or one Party fails or
refuses to appoint its arbitrator within the prescribed period, the appointment
authority for the presiding and/or such Party appointed arbitrator shall be the
AAA, who, in each case, shall appoint an independent arbitrator who does not
have any financial interest in the dispute, controversy or claim or bear any
relationship to either Party. If an arbitrator should die, withdraw or otherwise
become incapable of serving, or refuse to serve, a successor arbitrator shall be
selected and appointed in the same manner as the original arbitrator.
(b) An arbitrator:
(i) Cannot be a current director, officer or employee of the
Company or Investor or any of their respective Affiliates, or a family member of
any person currently serving in such capacity;
(ii) Cannot have served as a director, officer or employee of
the Company or Investor or any of their respective Affiliates;
(iii) Cannot have a direct or indirect material business or
other relationship, or be a shareholder, partner, family member or other equity
holder of any company or other entity that has a direct or indirect material
business or other relationship, with the Company or Investor or any of their
respective Affiliates; and
(iv) Cannot have a relation referenced in terms (i), (ii) or
(iii) above with any competitor of the Company or Investor or their Affiliates.
(c) In the resolution of any dispute related to this Agreement, the
arbitrator shall be obligated to honor the original intentions of the Parties as
evidenced by the plain meaning of the terms and provisions herein.
(d) The award of the arbitrators shall be final and binding on the
Parties and may be enforced by any court of competent jurisdiction.
ARTICLE X
TERMINATION
10.1 Termination.
(a) This Agreement may, by notice given on or prior to the Closing
Date, in the manner hereinafter provided, be terminated and abandoned at any
time prior to the Closing Date:
35
(i) by the Current Owners and the Company if there has been a
material misrepresentation or a material default or breach by the Investor with
respect to its representations in this Agreement or the due and timely
performance of any of the Investor's covenants and agreements contained in this
Agreement, and such misrepresentation, default or breach shall not have been
cured within ten (10) days after receipt by the Investor of notice specifying
particularly such misrepresentation, default or breach;
(ii) by the Investor if there has been a material
misrepresentation or a material default or breach by the Company or any Current
Owner with respect to any of their respective representations in this Agreement
or the due and timely performance by the Company or any Current Owner of any of
their respective covenants and agreements contained in this Agreement, and such
misrepresentation, default or breach shall not have been cured within ten (10)
days after receipt by the Company or any Current Owner of notice specifying
particularly such misrepresentation, default or breach;
(iii) by mutual agreement of the Company, the Current Owners
and the Investor;
(iv) by either the Current Owner and the Company, on the one
hand, or the Investor, on the other, if the Closing shall not have occurred on
or before June 30, 2006; provided that the Party seeking to terminate this
Agreement shall not because of its breach or violation of any representation,
warranty or covenant contained herein have caused the Closing not to have
occurred; or
(v) by the Current Owner and the Company, on the one hand, or
by the Investor, on the other hand, if there shall be a final nonappealable
order of a federal or state court in effect preventing the consummation of the
transactions contemplated by this Agreement; or there shall be any action taken,
or any statute, rule, regulation or order enacted, promulgated or issued or
deemed applicable to the transactions by any governmental entity which would
make the consummation of the transactions illegal.
(b) In the event of the termination of this Agreement pursuant to
Section 10.1(a), (i) the Transaction shall be abandoned; (ii) the provisions of
Article IX and this Article X shall remain in full force and effect and survive
any termination of this Agreement; and (iii) each Party shall remain liable for
any breach of this Agreement prior to its termination.
ARTICLE XI
DEFINITIONS
11.1 Defined Terms. As used herein, the terms defined below shall have
the following meanings. Any of these terms, unless the context otherwise
requires, may be used in the singular or plural depending on the reference.
(a) "Affiliate" shall mean as to any Party, any Person which directly
or indirectly, is in control of, is controlled by, or is under common control
with, such Party, and shall include any Controlled Group Member and any officer
or director of such Party. For purposes of this
36
definition, an entity shall be deemed to be "controlled by" a Person if the
Person possesses, directly or indirectly, power either to (i) vote ten percent
(10%) or more of the securities (including convertible securities) having
ordinary voting power or (ii) direct or cause the direction of the management or
policies of such entity whether by contract or otherwise; and, as to a Party who
is a natural person, such person's spouse, parents, siblings, ascendants
descendants or descendant's spouses or any entity controlled by them or any one
of them.
(b) "BASF Services Agreement" shall mean that certain Services
Agreement dated December 2, 2005 between BASF Corporation and IMTT-Geismar.
(c) "Code" shall mean the Internal Revenue Code of 1986, as amended.
(d) "Company's Knowledge" means the actual knowledge, at any time up to
the Closing Date, that any of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇., ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ "▇▇▇▇▇" ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ and
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇. , currently has or has ever had; provided, that when
used in connection with Section 3.18 hereof, Company's knowledge shall also
include the actual knowledge of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇ ▇. "▇▇▇▇" ▇▇▇▇▇▇▇▇ III, ▇▇▇▇▇ ▇. ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇, and ▇▇▇▇▇▇ ▇▇▇▇▇▇.
(e) "Contract" shall mean any note, bond, mortgage, contract, license,
lease, sublease, covenant, commitment, power of attorney, proxy, indenture,
purchase and sale orders, or other agreement or arrangement, oral or written, to
which the Company is a party or by which the Company or any of its assets or
property is bound.
(f) "Controlled Group Member" shall mean any Person which is or has
been a member of a controlled group (as defined in Code Section 412(n)(6) with
the Company).
(g) "Current Owners" shall mean the record owner of the shares of the
Company Common Stock, the Voting Trust for Loving Enterprises, Inc. and the
beneficial owners of the shares of the Company Common Stock owned by such trust,
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇., ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇.
(h) "Damages" means any and all Liabilities, losses, claims, demands,
damages (including punitive damages only to the extent included in a third-party
claim), lawsuits, proceedings, penalties, fines, taxes, the net present value of
any net reduction in the value of the net operating losses of the Company as of
December 31, 2005, interest and costs and expenses (including, without
limitation, reasonable attorneys' fees and disbursements); provided, however,
that for purposes of determining "the net present value of any net reduction in
the value of the net operating losses of the Company," the Parties agree that
such net present value shall be computed assuming (i) a discount rate of 13.5 %
per annum, (ii) a combined federal and state income tax rate of the Company
equal to 41.6%, (unless a manifest error would result) and (iii) that the
Company will be conclusively presumed to be able to use the full amount of the
Company's net operating losses as set forth in Schedule 3.12(m) to this
Agreement for both
37
federal and state income tax purposes as a lump sum in 2010 (unless a manifest
error would result), notwithstanding any section 382, SRLY or other limitation,
and without regard to the Company's actual income or loss during any period. For
purposes of this definition, the reference to any "net" reduction in the present
value of the net operating losses of the Company means that verified increases
to the net operating loss may also be taken into account, but only to the extent
that they increase the net operating loss of the Company as of December 31,
2005. In the event that an adjustment that causes an increase or decrease in the
value of the net operating losses of the Company creates a timing difference
rather than a permanent difference, the Parties agree that an appropriate
adjustment shall be made to take the timing difference into account. For this
purpose, an adjustment will be deemed to result in a timing difference if the
adjustment that results in an increase or decrease in the net operating losses
of the Company in any year prior to 2006 creates a corresponding adjustment that
results in an increase or decrease in the depreciation, amortization or other
item of loss or deduction of the Company or an increase or decrease in the
income or gain of the Company in any subsequent tax period. Damages, as
determined under Section 9.1A shall include any Damages incurred at or suffered
by the Company. To the extent that the Company suffers Damages, such Damages are
deemed allocated to the Investor to the extent of the Investor's ownership of
the Company's issued and outstanding shares of capital stock.
(i) "EBITDA" means the earnings before interest, income taxes,
depreciation and amortization of the Company. For the purpose of clarifying this
definition, Company shall mean the Company and its Subsidiaries accounted for on
a consolidated basis.
(j) "Encumbrance" shall mean any claim, lien, pledge, option, charge,
easement, security interest, right-of-way, encumbrance, mortgage or other right.
(k) "Engineering Controls" means any mechanism to contain or stabilize
contamination or ensure the effectiveness of a remedial action, including,
without limitation, caps, covers, dikes, trenches, leachate collection systems,
signs, fences and access controls.
(l) "Environment" shall mean navigable waters, waters of the contiguous
zone, ocean waters, natural resources, surface waters, ground water, drinking
water supply, land surface, subsurface strata, ambient air, both inside and
outside of buildings and structures, man-made buildings and structures, and plan
and animal life on earth.
(m) "Environmental Laws" shall mean all laws, ordinances, regulations,
codes, orders, judgments, injunctions, awards or decrees relating to pollution,
protection of the Environment, public or worker health and safety, or the
emission, discharge, release or threatened release of pollutants, contaminants
or industrial, medical, toxic or hazardous substances or wastes into the
Environment or otherwise relating to the manufacture, processing, distribution,
use, treatment, storage, disposal, transport or handling of pollutants,
contaminants or industrial, medical, toxic or hazardous substances or wastes,
including, without limitation, the Comprehensive Environmental Response,
Compensation and Liability Act, 42 USC. Section 9601 et. seq., the Resource
Conservation and Recovery Act, 42 USC. Section 6901 et. seq., the Toxic
Substances Control Act, 15 USC. Section 2601 et. seq., the Federal Water
Pollution Control Act, 33 USC. Section 1251 et seq., the Clean Air Act, 42 USC.
Section 7401 et seq., the Federal Insecticide,
38
Fungicide and Rodenticide Act, 7 USC. Section 121 et. seq., the Occupational
Safety and Health Act, 29 USC. Section 651 et. seq., the Asbestos Hazard
Emergency Response Act, 15 USC. Section 2601 et. seq., the Safe Drinking Water
Act, 42 USC. Section 300f et. seq., the Oil Pollution Act of 1990 and analogous
state acts, and all such laws, ordinances, regulations, codes, orders,
judgments, injunctions, awards and decrees as are applicable.
(n) "ERISA" shall mean the Employee Retirement Income Security Act of
1974, as amended.
(o) "Exchange Act" shall mean the Securities and Exchange Act of 1934,
as amended.
(p) "Facility" shall mean collectively the Land, Improvements and
Personal Property located at each of the locations identified on Schedule
3.13(a).
(q) "GAAP" shall mean United States generally accepted accounting
principles, consistently applied.
(r) "Government" shall mean any agency or instrumentality of the United
States of America or Canada or any state, province, territory or subdivision
thereof and any agency or instrumentality of any of the foregoing.
(s) "Government Authority" shall mean any court, tribunal, arbitrator,
authority (including any quasi-governmental authority), agency, commission,
official or other instrumentality of the United States, any foreign country or
any domestic or foreign state, county, city, municipal or other political or
governmental subdivision.
(t) "Hazardous Substance" shall mean any toxic waste, pollutant,
hazardous substance, toxic substance, hazardous waste, special waste, petroleum
or petroleum-derived substance or waste, radioactive substance or waste, or any
constituent of any such substance or waste, or as specifically defined by any
Environmental Law.
(u) "HSR Act" shall mean the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust Improvements
Act of 1976, as amended from time to time.
(v) "IMTT" shall mean the group of companies that are subsidiaries of
International Tank Terminals and their sibling Affiliates.
(w) "Income Tax" means (i) any federal, state, local, or foreign Tax
that is based on income, including gross receipts, and including any interest,
penalty, or addition thereto, whether disputed or not; (ii) any liability for
the payment of any amounts of the type described in clause (i) as the result of
being (or ceasing to be) a member of an affiliated, consolidated, combined or
unitary group (or being included (or required to be included) in any Tax Return
related thereto); and (iii) any liability for the payment of any amounts as a
result of an express or implied obligation to indemnify or otherwise assume or
succeed to the liability of any other person with respect to the payment of any
amounts of the type described in clause (i) or clause (ii).
39
(x) "Income Tax Return" means any report, return, statement, claim for
refund, election, declaration, information return or other information with
respect to any Income Tax required to be filed, permitted to be filed or
actually filed with a taxing authority, including any schedule or attachment
thereto, and including any amendment thereof.
(y) "ISRA" means Industrial Site Recovery Act, N.J.S.A. 13:1K-6 et seq.
(z) "Institutional Controls" means a mechanism used to limit human
activities at or near a contaminated site, or to ensure the effectiveness of the
remedial action over time, when contaminants remain at a contaminated site in
levels or concentrations above the applicable remediation standard that would
allow unrestricted use of that property, including, without limitation,
structure, land and natural resource use restrictions, well restriction areas
and deed notices.
(aa) "Intellectual Property Rights" shall mean all (i) patents, patent
applications and patent disclosures, (ii) trademarks, service marks, trade
dress, trade names, logos and corporate names and registrations and applications
for registration thereof together with all of the goodwill associated therewith,
(iii) copyrights (registered or unregistered) and copyrightable works and
registrations and applications for registration thereof, together with all
authors' and moral rights, (iv) mask works and registrations and applications
for registration thereof, (v) computer software (including, without limitation,
source code, object code, macros, scripts, objects, routines, modules and other
components), data, data bases and documentation thereof, (vi) trade secrets and
other confidential information (including, without limitation, ideas, formulas,
compositions, inventions (whether patentable or unpatentable and whether or not
reduced to practice), know-how, products, processes, techniques, methods,
research and development information and results, drawings, specifications,
designs, plans, proposals, technical data, marketing plans and customer,
prospect and supplier lists and information), (vii) other intellectual property
rights, (viii) "technical data" as defined in 48 Code of Federal Regulations,
Chapter 1, and (ix) copies and tangible embodiments thereof (in whatever form or
medium).
(bb) "Investor's Knowledge" shall mean the actual knowledge, at any
time up to the Closing Date, of ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇.
(cc) "Liability" shall mean, without limitation, any liability
indebtedness, guaranty, endorsement, claim, loss, damage, cost, expense,
obligation or responsibility, either accrued, absolute, contingent, mature,
unmature, fixed or unfixed, liquidated or unliquidated, secured or unsecured.
(dd) "Material" or "Materially," when used either in lower case or
upper case in this Agreement, refers to a potential adverse impact on the
Company (including any Subsidiary) of at least five hundred thousand dollars
($500,000) with respect to each event, occurrence or condition there being
referred to. For the purpose of clarification, a specific event, occurrence, or
condition shall be deemed to occur continuously as a single such specific event,
occurrence, or condition, regardless of whether it continues through months,
quarters, years, or other time periods which would otherwise make possible its
division into a series of separate events, occurrences, or conditions. .
40
(ee) "Material Adverse Effect" shall mean an adverse effect on the
assets, the business or its condition (financial or otherwise), properties,
Liabilities, working capital, earnings, or relations with customers which
reasonably can be expected to have an impact exceeding i.e. 5% of tangible
assets on the Balance Sheet or, 5% of EBITDA as measured for the 2005 fiscal
year.
(ff) "NJDEP" shall mean the New Jersey Department of Environmental
Protection.
(gg) "Order" shall mean any decree, injunction, judgment, order,
ruling, writ, quasi-judicial decision or award or administrative decision or
award of any federal, state, local, foreign or other court, arbitrator,
mediator, tribunal, administrative agency or Governmental Authority to which any
Person is a party or that is or may be binding on any Person or its securities,
assets or business
(hh) "Operational Data" shall mean Storage tank lists, American
Petroleum Institute ("API") 653 Tank Inspection reports, Pipe pressure test
documentation, API 570 Pipe Inspection reports, Cathodic Protection tests and
reports, Design Documents, Repair Work Authorizations For Expenditure, Repair
Work Contracts and Invoices, and Tank Repair/Reconstruction Certificates (API
653).
(ii) "Person" shall mean any person, limited liability company,
partnership, trust, unincorporated organization, corporation, association, joint
stock company, business, group, Government Authority or other entity.
(jj) "Personal Property" shall mean all furniture, equipment, leasehold
improvements, motor vehicles and all other tangible personal property owned or
leased by the Company or a Subsidiary.
(kk) "Release" shall mean any release, spill, emission, leaking,
pumping, injection, deposit, disposal, discharge, dispersal, leaching or
migration into, onto or through the indoor or outdoor Environment or into,
through or out of any property, including the movement of Hazardous Substances
through or in the air, soil, surface water, ground water or property.
(ll) "Remedial Action" shall mean all actions, whether voluntary or
involuntary, reasonably necessary to comply with Environmental Laws to (i) clean
up, remove, treat, cover or in any other way adjust Hazardous Substances in the
indoor or outdoor Environment, (ii) prevent or control the Release of Hazardous
Substances so that they do not migrate or endanger or threaten to endanger
public health or welfare or the Environment or (iii) perform remedial studies,
investigations, restoration and post-remedial studies, investigations and
monitoring on, about or in any real property.
(mm) "Securities Act" shall mean the Securities Act of 1933, as
amended.
(nn) "Shareholders' Agreement" shall mean that certain Shareholders'
Agreement in the form of Exhibit C hereto.
(oo) "Special Dividend" shall mean that certain dividend in the amount
of One Hundred Million Dollars ($100,000,000) to be declared by the Company with
respect to the
41
record owners of Company Common Stock immediately prior to Closing and payable
by the Company promptly after Closing.
(pp) "Tax" or "Taxes" means (i) all federal, state, local, foreign or
other tax of any kind whatsoever, including without limitation, all income,
gross receipts, license, payroll, employment, excise, severance, stamp,
occupation, premium, windfall profits, environmental , customs duties, capital
stock, ad valorem, value added, inventory, franchise, profits, withholding,
social security (or similar), unemployment, disability, real property, personal
property, unclaimed property, escheat, sales, use, transfer, registration,
alternative or add-on minimum, or estimated tax, and including any interest,
penalty, or addition thereto, whether disputed or not; (ii) all liability for
the payment of any amounts of the type described in clause (i) as the result of
being (or ceasing to be) a member of an affiliated, consolidated, combined or
unitary group (or being included (or required to be included) in any Tax Return
related thereto); and (iii) all liability for the payment of any amounts as a
result of an express or implied obligation to indemnify or otherwise assume or
succeed to the liability of any other person with respect to the payment of any
amounts of the type described in clause (i) or clause (ii).
(qq) "Tax Return" means any report, return, statement, claim for
refund, election, declaration, information return or other information with
respect to any Tax required to be filed, permitted to be filed or actually filed
with a taxing authority, including any schedule or attachment thereto, and
including any amendment thereof.
(rr) "Voting Trust for Loving Enterprises, Inc." shall mean the Voting
Trust for Loving Enterprises, Inc. under Agreement dated November 21, 2002 or
any successor trust by and among the Current Owners.
ARTICLE XII
MISCELLANEOUS
12.1 Successors and Assigns. This Agreement shall inure to the benefit
of and be binding upon the Company and the Current Owners and their respective
successors and assigns; provided, however, that the Company, Current Owners and
Investor may not make any assignment of this Agreement or any interest herein
without the prior written consent of each of the other Parties which will not be
unreasonably withheld.
12.2 Governing Law. This Agreement shall in all respects be
interpreted, construed and governed by and in accordance with the laws of the
State of New York.
12.3 Specific Performance; Remedies Not Exclusive. Each Party hereto
acknowledges that the other Parties shall be irreparably harmed and that there
shall be no adequate remedy at law for any violation by any of them of any of
the covenants or agreements contained in this Agreement. It is accordingly
agreed that, in addition to, but not in lieu of, any other remedies which may be
available upon the breach of any such covenants or agreements, each Party hereto
shall have the right to obtain injunctive relief to restrain a breach or
threatened breach of, or otherwise to obtain specific performance of, the other
Parties' covenants and agreements contained in this Agreement. All rights and
remedies of the Parties under this Agreement shall
42
be cumulative, and the exercise of one or more rights or remedies will not
preclude the exercise of any other right or remedy available under this
Agreement or applicable law.
12.4 Severability. Each section, subsection and lesser section of this
Agreement constitutes a separate and distinct undertaking, covenant and/or
provision hereof. In the event that any provision of this Agreement shall
finally be determined to be unlawful, such provision shall be deemed severed
from this Agreement, but every other provision of this Agreement shall remain in
full force and effect; provided, however that if such unlawful clause is so
material to the Party for whose benefit the clause was originally included so
that such Party would not have entered into this Agreement without such unlawful
clause, the severability of such clause shall be arbitrated pursuant to Section
12.8 hereof.
12.5 Amendment. This Agreement may be amended, supplemented or modified
by execution of an instrument in writing signed by or on behalf of each Party
hereto.
12.6 Waiver. The Company and the Current Owners, on the one hand, and
the Investor on the other, may to the extent permitted by applicable law (i)
extend the time for the performance of any of the obligations or other acts of
the other Parties hereto, (ii) waive any inaccuracies in the representations and
warranties of the other Parties hereto contained herein or in any document
delivered pursuant hereto or (iii) waive compliance with any of the agreements
of the other Parties hereto contained herein. No such extension or waiver shall
be effective unless set forth in a written instrument duly executed by or on
behalf of the Party extending the time of performance or waiving any such
inaccuracy or non-compliance. No waiver by any Party of any term of this
Agreement, in any one or more instances, shall be deemed to be or construed as a
waiver of the same or any other term of this Agreement on any future occasion.
12.7 Notices. All notices, requests, consents, waivers, and other
communications required or permitted to be given hereunder shall be in writing
and shall be deemed to have been duly given (a) if personally delivered, upon
delivery or refusal of delivery; (b) if mailed by registered or certified United
States mail, return receipt requested, postage prepaid, upon delivery or refusal
of delivery; or (c) if sent by a nationally recognized overnight delivery
service, upon delivery or refusal of delivery. All notices, consents, waivers,
or other communications required or permitted to be given hereunder shall be
addressed as follows:
(a) If to the Investor:
MACQUARIE TERMINAL HOLDINGS, LLC
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Telephone: ▇-▇▇▇-▇▇▇-▇▇▇▇
Facsimile: ▇-▇▇▇-▇▇▇-▇▇▇▇
43
with a copy to:
Pillsbury ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ LLP
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
(b) If to Current Owners:
VOTING TRUST FOR LOVING ENTERPRISES, INC.
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇ ▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone:(▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇.
with a copy to:
Coleman, Johnson, Artigues & ▇▇▇▇▇▇▇▇, L.L.C.
▇▇▇ ▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
(c) If to the Company:
LOVING ENTERPRISES, INC.
▇▇▇ ▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇.
with a copy to:
Coleman, Johnson, Artigues & ▇▇▇▇▇▇▇▇, L.L.C.
▇▇▇ ▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
44
or at such other address or addresses as the Party addressed may from
time to time designate in writing pursuant to notice given in accordance with
this section.
12.8 Expenses. All expenses (including, without limitation, financial
advisory fees, legal fees and expenses, broker and finder fees, fees and
expenses of accountants) in connection with the transactions contemplated hereby
shall be borne by the Party incurring such expenses. Notwithstanding the
foregoing, (i) should the Closing not occur due to a breach of this Agreement by
the Company or the Current Owners, all third-party expenses of the Investor
(including, without limitation, financial advisory fees, legal fees and
expenses, broker and finder fees, fees and expenses of accountants) incurred by
the Investor in connection with the transactions contemplated hereby shall be
borne by the Company; or (ii) should the Closing not occur due to a breach of
this Agreement by the Investor, all third-party expenses of the Company and the
Current Owners (including, without limitation, financial advisory fees, legal
fees and expenses, broker and finder fees, fees and expenses of accountants)
incurred by the Company or the Current Owners in connection with the
transactions contemplated hereby shall be borne by the Investor. The foregoing
reimbursement of expenses shall not be in lieu of any claim for Damages
resulting from a Parties breach.
12.9 Forum. The arbitration proceeding under Section 9.8 shall be held
in Delaware. Notwithstanding the foregoing, the Parties shall be entitled to
seek injunctive or other equitable relief from any court of competent
jurisdiction, without the need to resort to arbitration.
12.10 Complete Agreement. This Agreement, those documents expressly
referred to herein, including all exhibits and schedules hereto, and the other
documents of even date herewith embody the complete agreement and understanding
among the Parties and supersede and preempt any prior understandings, agreements
or representation by or among the Parties, written or oral, which may have
related to the subject matter herein.
12.11 Absence of Third Party Beneficiary Rights. No provision of this
Agreement is intended, nor will be interpreted, to provide or create any third
party beneficiary rights or any other rights of any kind in any client,
customer, stockholder, employee or partner of any Party hereto or any other
Person.
12.12 Mutual Drafting. This Agreement is the mutual product of the
Parties, and each provision hereof has been subject to the mutual consultation,
negotiation and agreement of each of the Parties, and shall not be construed for
or against any Party hereto.
12.13 Further Representations. Each Party acknowledges and represents
that it has been represented by its own legal counsel in connection with the
transaction contemplated by this Agreement, with the opportunity to seek advice
as to its legal rights from such counsel. Each Party further represents that it
is being independently advised as to the Tax consequences of the transactions
contemplated by this Agreement and is not relying on any representation or
statements made by the other Party as to such Tax consequences.
45
12.14 Public Disclosure. No Party shall make any disclosure (whether or
not in response to an inquiry of the existence or subject matter of this
Agreement) unless previously approved by the other Parties hereto or required by
law or otherwise believed by the disclosing party to be necessary to comply with
any stock exchange or securities law disclosure requirements.
12.15 Gender. Unless the context clearly indicates otherwise, where
appropriate the singular shall include the plural and the masculine shall
include the feminine or neuter, and vice versa, to the extent necessary to give
the terms defined herein and/or the terms otherwise used in this Agreement the
proper meanings.
12.16 Headings. The headings in this Agreement are intended solely for
convenience of reference and shall be given no effect in the construction or
interpretation of this Agreement.
12.17 Counterparts. This Agreement may be executed in two or more
counterparts, each of which when executed and delivered shall be deemed an
original and all of which, taken together, shall constitute the same agreement.
This Agreement and any document or schedule required hereby may be executed by
facsimile signature which shall be considered legally binding for all purposes.
46
IN WITNESS WHEREOF, each Party hereto has caused this
Agreement to be signed by its officer thereunto duly authorized as of the date
first above written.
MACQUARIE TERMINAL HOLDINGS, LLC
By: Macquarie Infrastructure Company Inc.
(d/b/a Macquarie Infrastructure Company (US))
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
_____________________________________________
Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Chief Executive Officer
LOVING ENTERPRISES, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
_____________________________________________
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Chief Executive Officer
CURRENT OWNERS
VOTING TRUST FOR LOVING ENTERPRISES, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
_____________________________________________
Trustee:
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
________________________________________________
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
________________________________________________
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
________________________________________________
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
/s/ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
________________________________________________
▇▇▇▇ ▇▇▇▇▇▇▇ Winingder
47
EXHIBIT A
OPINION OF COUNSEL
Legal Opinion of Coleman, Johnson, Artigues & ▇▇▇▇▇▇▇▇, L.L.C.
1. The Company has been duly incorporated and is validly existing and
in good standing under the laws of the State of Louisiana. The Company is
qualified to do business in each jurisdiction in which the failure to so qualify
would have a material adverse effect on the Company.
2. The Current Shareholder is a duly formed and validly existing voting
trust under the laws of the State of Louisiana. Set forth on Exhibit A hereto is
a true, accurate, and complete copy of the Agreement dated November 21, 2002
establishing the Voting Trust for Loving Enterprises, Inc. (the "Voting Trust").
3. The Company, the Current Shareholder, and the Beneficial
Shareholders have all power, authority and legal capacity to enter into and
perform the Transaction Documents, and the Company has all power and authority
to own its properties and to carry on its business.
4. The execution and delivery of the Transaction Documents and the
consummation of the transactions contemplated thereby have been duly authorized
by all necessary corporate and other action on the part of the Company and the
Current Shareholder, and the Transaction Documents have been duly executed and
delivered by each of the Company, the Current Shareholder, and the Current
Beneficial Shareholders. Each of the Transaction Documents constitutes the valid
and legally binding agreement of the Company, the Current Shareholder, and the
Current Beneficial Shareholders, enforceable against each of them in accordance
with its terms.
5. None of the execution, delivery or performance of the Transaction
Documents by the Company, the Current Shareholder, or the Current Beneficial
Shareholders will conflict with, result in a breach of, or constitute a default
under, the Articles of Incorporation of the Company or the Voting Trust.
6. The Company has duly adopted the Bylaws attached as Exhibit D to
the Stock Subscription Agreement in the manner required by law and such Bylaws
are the only Bylaws governing the Company. None of the execution, delivery or
performance of the Transaction Documents by the Company, the Current
Shareholder, or the Current Beneficial Shareholders will conflict with, result
in a breach of, or constitute a default under, the Company's Bylaws.
7. The Company has duly authorized, approved, executed and filed with
the Secretary of State of the State of Louisiana (or such other official or
regulatory authority as may be required by applicable law) the amendment to its
Articles of Incorporation attached as Exhibit C to the Stock Subscription
Agreement, such that the authorized capital stock of the Company presently
consists of two thousand (2,000) shares of Company Common Stock. Immediately
prior to the Closing, one thousand (1,000) shares of Company Common Stock were
issued and outstanding. All such issued and outstanding shares of capital stock
have been duly authorized and validly issued and are fully paid and
non-assessable. Neither the Company's Articles of Incorporation (immediately
before the [Amended Articles] were filed with the Louisiana Secretary of State)
nor any other agreement to which the Company is a party contain or impose any
preemptive or similar rights upon the outstanding shares of capital stock. There
are no
A-1
outstanding conversion or other rights, options, warrants, or other agreements
for the purchase or acquisition from the Company, the Current Shareholder, or
the Current Beneficial Shareholders of any shares of any of its or their capital
stock.
8. The one thousand (1,000) shares of Company Common Stock that are
being purchased by the Investor pursuant to the Stock Subscription Agreement,
when issued, sold and delivered in accordance with the terms of the Stock
Subscription Agreement for the consideration expressed therein, shall be duly
authorized, validly issued and fully paid and non-assessable.
9. Section 3.4 of the Stock Subscription Agreement, together with
Schedule 3.4 with respect thereto, reflect accurately and completely the
Company's ownership of equity interests in any subsidiaries and other entities.
10. No governmental consents, approvals, authorizations, registrations,
declarations, or filings are required for the execution and delivery of the
Transaction Documents on behalf of the Company, the Current Shareholder, or the
Current Beneficial Shareholders or the consummation by them of the transactions
contemplated thereby, except for the observance of the applicable waiting period
under the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust Improvements Act of 1976, as amended, and
the filing of the amendment to the Company's Articles of Incorporation.
11. Neither the execution and delivery of the Transaction Documents on
behalf of the Company, the Current Shareholder, or the Current Beneficial
Shareholders, nor the consummation by it or any of them of the transactions
contemplated by the Transaction Documents (a) violates any provision of the
Company's Articles of Incorporation, Bylaws, the Voting Trust or other
organizational documents in effect on the Closing Date, (b) violates any law
applicable to the Company, the Current Shareholder, or the Current Beneficial
Shareholders or (c) results in a breach or violation of any material contract,
property agreement, lease, or permit.
12. We do not have knowledge of any action, suit, or proceeding against
the Company or any Current Owner that is pending or has been threatened in
writing respecting any of the transactions contemplated by the Transaction
Documents.
A-2
EXHIBIT B
SHAREHOLDERS' AGREEMENT
B-1
EXHIBIT C
AMENDED AND RESTATED
ARTICLES OF INCORPORATION
OF LOVING ENTERPRISES, INC.
FIRST: The name of this corporation is Loving Enterprises,
Inc.
SECOND: Its registered office in the State of Louisiana is to
be located at __________ and its registered agent at such address is
____________________.
THIRD: The purpose or purposes of the corporation shall be:
To engage in any lawful act or activity for
which corporations may be formed under the Business
Corporation Law of the State of Louisiana.
FOURTH: The total number of shares of stock which this
corporation is authorized to issue is: two thousand (2000) shares of common
stock, par value $100 per share.
FIFTH: This Amended and Restated Articles of Incorporation was
duly approved and adopted by the Board of Directors of the Corporation and by
the holders of the required majority of the outstanding shares of the capital
stock of the Corporation entitled to vote thereon.
SIXTH: No director shall be personally liable to the
Corporation or its stockholders for monetary damages for any breach of fiduciary
duty by such director as a director. Notwithstanding the foregoing sentence, a
director shall be liable to the extent provided by applicable law, (i) for
breach of the director's duty of loyalty to the Corporation or its stockholders,
(ii) for acts or omissions not in good faith or which involve intentional
misconduct or a knowing violation of law, (iii) for any transaction from which
the director derived an improper personal benefit. No amendment to or repeal of
this Article Sixth shall apply to or have any effect on the liability or alleged
liability of any director of the Corporation for or with respect to any acts or
omissions of such director occurring prior to such amendment.
IN WITNESS WHEREOF, the undersigned, being the incorporator
herein before named, has executed signed and acknowledged this certificate of
incorporation this __ day of ___________, A.D. 2006.
-----------------------------------
Name:
C-1
EXHIBIT D
BYLAWS
OF
LOVING ENTERPRISES, INC.
(A LOUISIANA CORPORATION)
AND
BYLAWS
OF
IMTT HOLDINGS, INC.
(A DELAWARE CORPORATION)
ARTICLE I
SHAREHOLDERS AGREEMENT
Where these bylaws are silent, or where there is any conflict,
the Shareholders' Agreement dated April 14, 2006, by and among Macquarie
Terminal Holdings LLC, a Delaware limited liability company, Loving Enterprises,
Inc., a Louisiana corporation, (or its successor in interest ) together with all
of its subsidiaries, the Voting Trust for Loving Enterprises, Inc. under the
Agreement dated as of November 21, 2002 (or any successor voting trust), and
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇., ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ and ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
(or any successor voting trust) (the "Shareholders' Agreement") shall govern.
The fact that these Bylaws and the Shareholders' Agreement refer to
"Shareholders" rather than "Stockholders" shall not have any effect on their
interpretation.
ARTICLE II
STOCK CERTIFICATES
The shares of the corporation may be represented by a
certificate or may be uncertificated. Certificates shall be signed by (a) (i)
the chairman or vice-chairman of the board of directors, or (ii) the president
or vice-president, and (b) (i) the treasurer or an assistant treasurer, or (ii)
the secretary or assistant secretary of the corporation. The board of directors
may direct a new certificate or certificates or uncertificated shares to be
issued in place of any certificate or certificates theretofore issued by the
corporation alleged to have been lost, stolen or destroyed, upon the making of
an affidavit of that fact by the person claiming the certificate of stock to be
lost, stolen or destroyed. When authorizing such issue of a new certificate or
certificates or uncertificated shares, the board of directors may, in its
discretion and as a condition precedent to the issuance thereof, require the
owner of such lost, stolen or
D-1
destroyed certificate or certificates, or his legal representative, to advertise
the same in such manner as it shall require and/or to give the corporation a
bond in such sum as it may direct as indemnity against any claim that may be
made against the corporation with respect to the certificate alleged to have
been lost, stolen or destroyed.
ARTICLE III
GENERAL PROVISIONS
Section 1. Fiscal Year. The fiscal year of the corporation shall be
fixed by resolution of the board of directors, but in the absence of resolution,
the corporation's fiscal year shall end on December 31.
Section 2. Seal. The corporate seal shall have inscribed thereon the
name of the corporation, the year of its organization and the words "Corporate
Seal, Delaware". The seal may be used by causing it or a facsimile thereof to be
impressed or affixed or reproduced or otherwise.
ARTICLE IV
AMENDMENTS
The Bylaws may be amended according to the terms of the
Shareholders' Agreement.
D-2
