UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
(Amendment No. 15 )*
Wheelabrator Technologies Inc.
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(Name of Issuer)
Common Stock
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(Title of Class of Securities)
962901 30 2
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(CUSIP Number)
Herbert A. Getz, Waste Management, Inc. 3003 Butterfield Rd.
Oak Brook, IL 60523 (630) 572-8800
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(Name, Address and Telephone Number of Person Authorized to
Receive Notices and Communications)
December 8, 1997
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(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to
report the acquisition which is the subject of this Schedule 13D, and is
filing this schedule because of Rule 13d-1(b)(3) or (4), check the
following box. o
Check the following box if a fee is being paid with this statement o. (A
fee is not required only if the filing person: (1) has a previous statement
on file reporting beneficial ownership of more than five percent of the
class of securities described in Item 1; and (2) has filed no amendment
subsequent thereto reporting beneficial ownership of five percent or less
of such class.) (See Rule 13d-7).
Note: Six copies of this statement, including all exhibits, should be filed
with the Commission. See Rule 13d-1(a) for other parties to whom copies are
to be sent.
*The remainder of this cover page shall be filled out for a reporting
person's initial filing on this form with respect to the subject class of
securities, and for any subsequent amendment containing information which
would alter the disclosures provided in a prior cover page.
The information required in the remainder of this cover page shall not be
deemed to be "filed" for the purpose of Section 18 of the Securities
Exchange Act of 1934 ("Act") or otherwise subject to the liabilities of
that section of the Act but shall be subject to all other provisions of the
Act (however, see the Notes).
13D
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Waste Management, Inc. 36-2660763
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) | |
(b) | |
3 SEC USE ONLY
4 SOURCE OF FUNDS
WC and/or 00
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED | |
PURSUANT TO ITEM 2(d) OR 2(e)
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
7 SOLE VOTING POWER
NUMBER OF 104,621,810 Shares*
SHARES
BENEFICIALLY 8 SHARED VOTING POWER
OWNED BY 0 Shares
EACH
REPORTING 9 SOLE DISPOSITIVE POWER
PERSON 104,621,810 Shares*
WITH
10 SHARED DISPOSITIVE POWER
0 Shares
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
104,621,810 Shares*
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW 11 EXCLUDES CERTAIN SHARES
| |
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW 11
approximately 65%*
14 TYPE OF REPORTING PERSON
CO
*Held through Waste Management, Inc. and various wholly-owned subsidiaries.
This Amendment amends and restates the Statement on Schedule 13D
filed by the undersigned on August 31, 1989, Amendment No. 1 to such
Schedule 13D filed by the undersigned on March 19, 1990, Amendment No. 2 to
such Schedule 13D filed by the undersigned on April 2, 1990, Amendment No.
3 to such Schedule 13D filed by the undersigned on August 2, 1990,
Amendment No. 4 to such Schedule 13D filed by the undersigned on September
10, 1990, Amendment No. 5 to such Schedule 13D filed by the undersigned on
October 11, 1990, Amendment No. 6 to such Schedule 13D filed by the
undersigned on November 2, 1990, Amendment No. 7 to such Schedule 13D filed
by the undersigned on November 8, 1990, Amendment No. 8 to such Schedule
13D filed by the undersigned on November 28, 1990, Amendment No. 9 to such
Schedule 13D filed by the undersigned on December 17, 1990, Amendment No.
10 to such Schedule 13D filed by the undersigned on April 19, 1991,
Amendment No. 11 to such Schedule 13D filed by the undersigned on August
15, 1991, Amendment No. 12 to such Schedule 13D filed by the undersigned on
January 3, 1992, Amendment No. 13 to such Schedule 13D filed by the
undersigned on March 16, 1993 and Amendment No. 14 to such Schedule 13D
filed by the undersigned on March 23, 1993.
ITEM 1. Security and Issuer.
This statement relates to the common stock, par value $.01 per
share (the "Common Stock"), of Wheelabrator Technologies Inc. (the
"Company"), a Delaware corporation which has its principal executive
offices at 4 Liberty Lane West, Hampton, New Hampshire 03842. The Company
was incorporated under the name The Henley Group, Inc. in December 1985 and
on December 29, 1988 changed its name to The Wheelabrator Group Inc.
("WGI"). On December 31, 1988, the Company effected the separation of its
businesses into two separate public companies, the Company and The Henley
Group, Inc., a Delaware corporation ("Henley"), by contributing the greater
portion of such businesses and assets to Henley and distributing the Henley
Class A Common Stock, representing 90% of the equity of Henley, to the
Company's public stockholders. On August 24, 1989, Wheelabrator
Technologies Inc., a Delaware corporation and 60% owned indirect subsidiary
of the Company ("WTI"), merged (the "Merger") into Resco Holdings Inc., a
Delaware corporation and a subsidiary of the Company ("RHI"), and the
Company changed its name to Wheelabrator Technologies Inc.
ITEM 2. Identity and Background.
(a)(b)(c) This statement is being filed by Waste Management, Inc.,
a Delaware corporation ("Waste Management") that was known as "WMX
Technologies, Inc." from May 14, 1993 until May 9, 1997 and prior to May
14, 1993, was known as "Waste Management, Inc.", and its wholly-owned
subsidiaries, Waste Management of North America, Inc., an Illinois
corporation ("WMNA") (known as "Waste Management, Inc." from May 14, 1993
until May 9, 1997), Chemical Waste Management, Inc., a Delaware corporation
("CWM"), National Guaranty Insurance Company, a Vermont corporation
("NGIC"), and Mountain Indemnity Insurance Company, a Vermont corporation
("MIIC"). This statement was originally filed in connection with the
acquisition by Waste Management, through WMNA, of 8,959,535 shares of
Common Stock of the Company (and the disposition, by virtue of their
conversion in the Merger, of 10,603,000 shares of Common Stock of WTI, as
to which this statement was also deemed to be Amendment No. 1 to the
Schedule 13D of Waste Management and WMNA filed August 18, 1988 with
respect to WTI Common Stock). The principal business and office address of
each of Waste Management, WMNA and CWM is 3003 Butterfield Road, Oak Brook,
Illinois 60521. The principal business of Waste Management is to act as a
holding company for subsidiaries engaged in the businesses of comprehensive
waste management services and other related services. WMNA is a
wholly-owned subsidiary of Waste Management and is a holding company, the
subsidiaries of which are engaged in comprehensive solid waste management
services and related services in the United States and Mexico. CWM is a
wholly-owned subsidiary of Waste Management which, directly or through
subsidiaries, is engaged in hazardous waste management services in the
United States and Mexico. The principal business and office address of each
of NGIC and MIIC is 7 Burlington Square, Burlington, Vermont 05401. NGIC
and MIIC are wholly-owned subsidiaries of Waste Management, each engaged in
the business of providing insurance services.
The name, business address and present principal occupation of each
of the directors and executive officers of Waste Management are set forth
in Appendix I which is attached hereto and
incorporated herein by reference.
(d)(e) Neither Waste Management, nor, to the best of its knowledge,
any director or executive officer of Waste Management listed on Appendix I
hereto, has been, during the last five years, (a) convicted in a criminal
proceeding (excluding traffic violations or similar misdemeanors) or (b) a
party to a civil proceeding of a judicial or administrative body of
competent jurisdiction and as a result of such proceeding was or is subject
to a judgment, decree or final order enjoining future violations of, or
prohibiting or mandating activities subject to, federal or state securities
laws or finding any violation with respect to such laws.
(f) Each director and executive officer of Waste Management listed
in Appendix I is a citizen of the United States.
ITEM 3. Source and Amount of Funds or Other Consideration.
As more fully described in Items 4 and 5 hereto, this statement on
Schedule 13D was originally filed in connection with the acquisition by
Waste Management, through WMNA, of 8,959,535 shares of the Common Stock on
August 24, 1989, pursuant to an Agreement and Plan of Merger and
Reorganization (the "Merger Agreement"), dated as of June 14, 1989, among
the Company, RHI and WTI. This discussion is qualified in its entirety by
reference to the Merger Agreement, a copy of which was included as Exhibit
1 to the original filing and is incorporated herein by reference.
Waste Management, through WMNA, originally acquired 8,959,535
shares of the Common Stock on August 24, 1989, when, pursuant to the Merger
Agreement, each outstanding share of common stock, par value $.01 per share
(the "WTI Common Stock"), of WTI was automatically converted into 3.38
shares of the Common Stock and a reverse split (the "Reverse Split") of the
Common Stock was effected, such that each four shares of the Common Stock
outstanding immediately after the consummation of the Merger was
reclassified into one share of the Common Stock. As a result of the
foregoing, the 10,603,000 shares of WTI Common Stock owned by WMNA prior to
the Merger were converted into 8,959,535 shares of the Common Stock.
As consideration for the WTI Common Stock owned of record by WMNA,
Waste Management, pursuant to an Amended and Restated Organizational
Agreement dated as of June 30, 1988, as heretofore amended (the
"Organizational Agreement") by and among Henley, WTI and Waste Management,
directly, or through its wholly-owned subsidiary WMNA, contributed the
following to WTI:
(i) an option to purchase, lease or sublease parcels of real
estate at or adjacent to landfill facilities owned or leased by WMNA or its
subsidiaries or affiliates for the purpose of constructing and operating
refuse-to-energy facilities at such sites (the "Land Option
Agreement");
(ii) certain rights to airspace at landfill sites controlled
by WMNA or its subsidiaries or affiliates to dispose of residue produced by
refuse-to-energy facilities owned or operated by WTI or its subsidiaries or
affiliates;
(iii) all of WMNA's right, title and interest in and to 100
shares of the common stock, par value $1.00 per share, of Envirotech
Operating Services, Inc., a Delaware corporation;
(iv) all of Waste Management's right, title and interest in
and to 100 shares of the common stock, without par value, of Tampa Waste
Management Energy Systems, Inc., a Florida corporation; and
(v) Waste Management's undertaking to provide certain
funding support in connection with WTI's construction of refuse-to-energy
facilities.
In addition, Waste Management or WMNA and WTI entered into certain
other agreements pursuant to the Organizational Agreement. Waste Management
guaranteed the obligations of WMNA under the agreements delivered by WMNA
at the closing under the Organizational Agreement on August 12, 1988 (the
"WTI Closing"). WMNA agreed to provide guaranteed annual tonnage at
specified contract rates to WTI at certain locations under a waste supply
agreement. WMNA and WTI also entered into a development agreement for the
three years ending August 12, 1991, providing for the payment by WMNA of up
to $23.5 million in fees for development services to be provided by WTI and
pursuant to which WMNA transferred at the WTI Closing certain WMNA and
Waste Management refuse-to-energy projects to WTI.
The Organizational Agreement further provides that, for so long as
the Land Option Agreement is in effect, neither Waste Management nor Henley
shall directly or indirectly engage in the refuse-to-energy business in the
United States and Canada other than through the Company (except that
neither Waste Management nor Henley is prohibited from acquiring another
company unless such company's predominant business is, in the acquiring
company's judgment, the refuse-to-energy business). If either Waste
Management or Henley acquires a company with a refuse-to-energy business
component which is not its predominant business, the acquiring company must
offer such refuse-to-energy component to WTI at a price equal to its fair
market value, and if either Waste Management or Henley wishes to sell any
refuse-to-energy business to any third party, it has agreed to give WTI a
right of first refusal with respect to such business.
The Organizational Agreement and the agreements entered into
pursuant to it survived the Merger, except as modified by a Modification
Agreement, dated August 24, 1989 (the "Modification Agreement") entered
into by the Company, RHI, WTI, Henley and WMNA as described more fully in
Item 4 below.
This discussion is qualified in its entirety by reference to the
Organizational Agreement, a copy of which was included as Exhibits 2 and 3
to the original filing, and the Modification Agreement, a copy of which was
included as Exhibit 5 to the original filing, all of which are
incorporated herein by reference.
Pursuant to the Organizational Agreement, Henley contributed to WTI
28,485,000 shares of common stock, par value $0.01 per share, of WTI's
predecessor ("Old WTI") (the "Old WTI Common Stock"), or approximately
80.5% of the issued and outstanding Old WTI Common Stock, and 1,000,000
shares of $2.00 Series A Convertible Preferred Stock, par value $1.00 per
share, of Old WTI (the "Old WTI Preferred Stock"), or 100% of the issued
and outstanding the Old WTI Preferred Stock. In exchange, WTI issued
28,582,000 shares of WTI Common Stock or approximately 60% of the issued
and outstanding shares of WTI Common Stock to RHI. Waste Management
contributed the assets described above in exchange for 10,603,000 shares of
WTI Common Stock, or approximately 22% of the issued and outstanding shares
of WTI Common Stock.
Pursuant to an Agreement and Plan of Merger dated as of July 14,
1988 (the "WTI Merger Agreement"), among Old WTI, WTI and Wheelabrator
Holdings Sub Inc., a Delaware corporation and a wholly-owned subsidiary of
WTI ("Holdings Sub"), Holdings Sub was merged into Old WTI on August 12,
1988 (the "WTI Merger"). This discussion is qualified in its entirety by
reference to the WTI Merger Agreement, a copy of which was included as
Exhibit 4 to the original filing and is incorporated herein by reference.
Pursuant to the WTI Merger, each outstanding share of Old WTI
Common Stock held by the public (other than dissenting shares) was
converted into one share of Common Stock of WTI. The Old WTI Common and
Preferred Stock held by the Company was cancelled. Old WTI was the
surviving company in the Merger and became a wholly-owned subsidiary of
WTI. Subsequent to the WTI Merger, WTI was owned approximately 60% by the
Company, 22% by Waste Management through WMNA, and 18% by the public
(including 3.3% held by certain officers and directors of the Company).
As more fully described in Items 4 and 5 hereto, Waste Management
acquired an additional 13,500,000 shares of the common stock of the Company
on September 7, 1990, pursuant to an Agreement and Plan of Merger, dated
March 30, 1990 (the "WMNA Merger Agreement"), as amended (the "WMNA
Merger"). Pursuant to the terms of the WMNA Merger Agreement, each
stockholder of the Company, other than Waste Management and its affiliates,
had the right to receive .469 of a share of common stock, par value $1.00
per share, of Waste Management and .574 of a share of the New Shares (as
defined below) of the Company for each share of the Common Stock of the
Company held at September 7, 1990, the effective time of the WMNA Merger.
The foregoing discussion of the merger consideration is qualified
in its entirety by reference to the WMNA Merger Agreement, as amended (a
copy of which was previously filed as Annex I to Exhibit 7 to Amendment 3
to the Statement and is incorporated herein by this reference).
The exercise of the option on December 10, 1990, to purchase
440,835 shares of the Common Stock reported in Item 4 was paid for by Waste
Management from its working capital. Waste Management paid $26.04 per
share, or a total of $11,479,343.30, in cash, for the shares purchased.
The 5,997,303 shares of the Company purchased by Waste Management
on August 15, 1991, in connection with the International Option (as defined
below), were paid for by Waste Manage ment's assignment to the Company of a
demand promissory note in the principal amount of $168,974,000, which the
Company used as the consideration for its purchase of an equity interest in
Waste Management's international operations, as described in Item 4 below.
The shares of the Common Stock held by NGIC and MIIC were contributed to
them by Waste Management from these shares.
On January 3, 1992, the Company issued 1,362,862 shares of the
Common Stock to CWM, a subsidiary of Waste Management that was then owned
76% by Waste Management and which became a wholly-owned subsidiary of Waste
Management on January 24, 1995. Such 1,362,862 shares of the Common Stock
were issued as consideration for the purchase by the Company of 100% of the
shares of capital stock of Sirrine Environmental Consultants, Inc.
("Sirrine"). Sirrine was in the business of providing environmental
engineering services in the United States.
On January 7, 1993, Waste Management acquired 51,798,043 shares of
the Common Stock and CWM acquired 1,362,862 shares of the Common Stock,
respectively, in a 2-for-1 stock split, effected in the form of a 100%
stock dividend.
From time to time since 1994 the Company has repurchased shares of
the Common Stock in the open market and in privately negotiated
transactions. The source of funds for the Company's repurchase of its
shares has been the Company's working capital and the proceeds of the sales
of certain of the Company's assets. Waste Management loaned the Company
funds for certain of the Company's share repurchases.
On December 8, 1997, the Company entered into an Agreement and Plan
of Merger with Waste Management and WMI Merger Sub, Inc., a Delaware
corporation ("WMI Merger Sub") (the "1997 Merger Agreement"). Pursuant to
the 1997 Merger Agreement, all outstanding shares of the Common Stock,
other than dissenting shares, will be converted into the right to receive
payment of $16.50 in cash per share of the Common Stock and WMI Merger Sub
will be merged with and into the Company (the "1997 Merger "). The Company
will survive the 1997 Merger and, after such merger, will be a wholly owned
subsidiary of Waste Management. The source of funds for payments by Waste
Management of the merger consideration has yet to be determined. Waste
Management believes that it will be able to procure the necessary funds.
ITEM 4. Purpose of Transaction.
WMNA's original acquisition of the Common Stock was the consequence
of the conversion of the shares of WTI Common Stock it held into Common
Stock in the Merger. The Company and WTI described the purpose of the
Merger as being to place the general group of assets on which both the
Company's and WTI's earnings and financial condition rely under one public
company, and stated that they expected that such combination would enhance
stockholder value by eliminating factors such as investor confusion
resulting from the dependence of WTI and the Company on the same general
group of assets and the additional administrative costs associated with
operating two public companies, which could ultimately depress the price at
which the Company's stock traded in the market. They also stated that they
believed that the combined enterprise would have greater financial strength
that would further its ability to pursue its strategy of continued growth
in the development of its refuse-to-energy and water and wastewater
treatment businesses. The Company stated that the combination would allow
the executive officers of the Company following the Merger to focus their
efforts more fully on WTI, the Company's principal asset, and WTI stated
that the combined enterprises' larger stockholder base would create greater
liquidity for WTI's stockholders than was previously available for such
stockholders and would substantially reduce market overhang for WTI Common
Stock.
Pursuant to the Merger Agreement, on August 24, 1989, WTI was
merged into RHI; each outstanding share of WTI was converted into 3.38
shares of the Common Stock; pursuant to the Reverse Split, each four shares
of the Common Stock was reclassified into one share of Common Stock; and
each outstanding share of WTI Common Stock held by RHI was cancelled. The
Company was then owned approximately 7% by Henley, 22% by Waste Management
through its wholly-owned subsidiary WMNA, and 71% by the public (including
approximately 6% by certain directors and officers of the Company).
Immediately prior to the effective time of the Merger (the
"Effective Time"), Messrs. Dean L. Buntrock, Phillip B. Rooney, Donald F.
Flynn, and William P. Hulligan were, pursuant to the Merger Agreement,
elected to serve as Waste Management's designees on the Company's Board of
Directors (the "Waste Management Directors").
On August 24, 1989, pursuant to the Merger Agreement, WMNA entered
into the Modification Agreement with the Company, RHI, WTI, and Henley.
This discussion is qualified in its entirety by reference to the
Modification Agreement, a copy of which was included as Exhibit 5 to the
Statement as originally filed and incorporated herein by reference.
The Modification Agreement granted to WMNA, for use at any time
during the ten years following the Merger, demand registration rights on
three occasions and an unlimited number of "piggyback" registration rights
with respect to the shares of the Common Stock held by it.
The Modification Agreement also rescinded certain options and
granted WMNA certain options to purchase additional shares of the Common
Stock. One option provided that if the Company, at any time on or prior to
June 30, 1992, proposed to issue or did issue additional shares of Common
Stock with the result that WMNA and its affiliates would no longer
beneficially own at least 23% of the shares of the Common Stock at the time
issued and outstanding, WMNA would have the continuing option to purchase
from the Company, at fair market value, such number of shares of Common
Stock as would be necessary to cause WMNA and its affiliates to remain
collectively the beneficial owners of at least 23% of the shares of the
Common Stock at the time issued and outstanding after giving effect to the
issuance of the additional shares under such option. The option would
terminate on the earlier of (a) one year after the date on which the
Company delivered to WMNA notice of issuance of additional shares of the
Common Stock sufficient to cause the option to become exercisable, if WMNA
did not exercise such option during such year or (b) at such time as WMNA
and its affiliates no longer beneficially owned at least 20% of the issued
and outstanding shares of the Common Stock as a result of sales or
transfers of shares of the Common Stock by WMNA or its affiliates.
In addition, the Modification Agreement granted WMNA an option to
purchase, at $26.04 per share, 440,835 shares of the Common Stock. Such
option was exercisable in whole or in part at any time on or before June
30, 1992, would terminate at such time as WMNA and its affiliates no longer
beneficially owned at least 20% of the issued and outstanding shares of the
Common Stock as a result of sales or transfers of shares of the Common
Stock by WMNA or its affiliates, and was subject to adjustment with respect
to the number and character of securities subject to the option and the
exercise price of such option to adjust for certain actions affecting the
Common Stock, such as stock splits or stock dividends.
The Modification Agreement also provided that, until the earlier of
(a) August 24, 1999 and (b) for WMNA's rights, the date on which WMNA and
its affiliates own less than 25% of the shares of the Common Stock which it
owned at the Effective Time, and for Henley's rights, the date on which
Henley and its affiliates own less than 25% of the shares of the Common
Stock which it owned at the Effective Time, the Company would have a right
of first refusal if WMNA or Henley wished to sell or otherwise transfer its
shares of Common Stock to anyone other than a wholly-owned subsidiary. If
the Company does not exercise its right to purchase the offered shares, the
non-offering shareholder, either WMNA or Henley, as the case may be (the
"Offeree Shareholder"), may exercise a right of first refusal regarding
such shares. If neither the Company nor the Offeree Shareholder has
exercised its right of first refusal, the offering shareholder has the
right during a 60- day period following the offering period to sell its
shares of the Common Stock to a third party at a price equal to or greater
than the purchase price at which such shares were offered to the Company or
the Offeree Shareholder.
On March 30, 1990, Waste Management, WMI Sub, Inc., a Delaware
corporation and wholly-owned subsidiary of Waste Management ("Sub"), and
the Company entered into the WMNA Merger Agreement, which was approved by
their respective boards of directors, providing for the merger of Sub into
the Company. The WMNA Merger Agreement, which was subject, among other
things, to approval by Company stockholders at a special meeting called for
that purpose (the "Special Meeting"), provided that, if the WMNA Merger was
effected, Company stockholders, other than Waste Management and its
affiliates, would receive .469 of a share of the common stock of Waste
Management and .574 of a share of newly-issued common stock of the Company
(the "New Shares") in exchange for each share of the Common Stock held at
the effective time of the WMNA Merger.
The WMNA Merger Agreement also provided that the Company and Waste
Management would agree upon definitive forms of certain ancillary
agreements prior to the mailing of the Proxy Statement/Prospectus required
in connection with the Special Meeting (the "Ancillary Agreements"). The
principal terms of the Ancillary Agreements were set forth in Schedule II
to the WMNA Merger Agreement. The Ancillary Agreements are described on
pages 51 to 59 of the joint Proxy Statement- Prospectus of Waste Management
and the Company (a copy of which was previously filed as Exhibit 7 to
Amendment 3 to the Statement). The descriptions of the Ancillary Agreements
set forth on such pages of the Proxy Statement-Prospectus are incorporated
herein by reference.
The discussion of the Ancillary Agreements incorporated herein by
reference is qualified in its entirety by reference to the Ancillary
Agreements, copies of which were included as Exhibits 8, 9, 10, 11 and 12
to Amendment 4 to the Statement and incorporated herein by reference.
The foregoing discussion of the WMNA Merger Agreement is qualified
in its entirety by reference to the WMNA Merger Agreement, a copy of which
was included as Exhibit 6 to Amendment 2 to the Statement and incorporated
herein by reference.
As of July 24, 1990, Waste Management, Sub, and the Company entered
into an amendment (the "Amendment") to the WMNA Merger Agreement, which was
approved by the boards of directors of Sub and the Company, the Executive
Committee of Waste Management and by Waste Management as the sole
shareholder of Sub. The Amendment to the WMNA Merger Agreement provided
that the Company could make certain amendments prior to the Effective Time
to the Retirement Plan for Non-Employee Directors and also made minor
revisions in the amendments permitted pursuant to the initial WMNA Merger
Agreement for the Restricted Unit Plan and the 1988 Stock Plan.
The foregoing discussion of the Amendment to the WMNA Merger
Agreement is qualified in its entirety by reference to the WMNA Merger
Agreement, as amended to reflect the Amendment, a copy of which was
included as Annex I to the Proxy Statement-Prospectus of Waste Management
and the Company, a copy of which was included as Exhibit 7 to Amendment 3
to the Statement and incorporated herein by reference.
On September 7, 1990, the Company's stockholders approved the WMNA
Merger Agreement, as amended, at the Special Meeting. As a result of the
WMNA Merger, Waste Management owned an additional 13,500,000 shares of the
Common Stock. Waste Management then beneficially owned a total of
22,459,535 shares (approximately 55%) of the Common Stock.
Pursuant to the WMNA Merger Agreement, as amended, the number of
directors of the Company was increased to add four designees of Waste
Management to the Company's Board of Directors. In addition, Phillip B.
Rooney, then President, Chief Operating Officer and Director of Waste
Management, was appointed Vice Chairman of the Company's Board of Directors
and Chairman of the Executive Committee of the Company's Board of
Directors, and Herbert A. Getz, then Vice President, Secretary and
Assistant General Counsel of Waste Management, was appointed Secretary of
the Company. As of September 7, 1990, Waste Management designees
constituted a majority of the Board of Directors of the Company and Waste
Management effectively controlled the Company.
The Merger Agreement contemplated that the parties to the
Modification Agreement would enter into an Amendment to the Modification
Agreement which was expected to provide, among other things, that WMNA's
option to purchase 440,835 shares of the Common Stock at a price of $26.04
per share would continue unchanged after the WMNA Merger, and that all
shares of the Common Stock to be issued to Waste Management and its
affiliates pursuant to the WMNA Merger would be subject to the registration
rights set forth in the Modification Agreement.
The discussion of the Amendment to the Modification Agreement set
forth above is qualified in its entirety by reference to Section 6.4 of the
WMNA Merger Agreement, as amended, a copy of which was previously filed as
Annex I to Exhibit 7 to Amendment 3 to the Statement, and such
Section 6.4 is incorporated herein by this reference.
On October 25, 1990, Henley, Henley Support Co. Two ("Henley II"),
the Company, WMNA and RHI entered into a letter agreement (the "Letter
Agreement") relating to the Modification Agreement. The Letter Agreement
provided, among other things, that WMNA and the Company waived their rights
of first refusal under the Modification Agreement with respect to shares of
common stock of the Company owned by Henley, that Henley and its affiliates
waived their right to purchase from the Company such number of shares of
common stock of the Company as would have been necessary to remain
collectively the beneficial owners of at least 7.26% of the shares of the
Common Stock, that Henley and the Company waived their rights of first
refusal under the Modification Agreement with respect to shares of the
Common Stock owned by WMNA or its affiliates, that Henley and its
affiliates waived their registration rights set forth in the Modification
Agreement with respect to the shares of the Common Stock they held, that
WMNA's option to purchase 440,825 shares of Common Stock at a price of
$26.04 per share would continue unchanged after the WMNA Merger, and that
all shares of the Common Stock issued to Waste Management and its
affiliates pursuant to the WMNA Merger would be subject to the registration
rights set forth in the Modification Agreement.
The discussion of the Amendment to the Modification Agreement set
forth above is qualified in its entirety by reference to the Amendment to
the Modification Agreement, a copy of which was included as Exhibit 13 to
Amendment 6 to the Statement and incorporated herein by reference.
On November 26, 1990, Waste Management notified the Company that it
would exercise the option, previously held by WMNA and assigned by WMNA to
Waste Management, that was granted under the Modification Agreement (as
amended by the Letter Agreement) to purchase 440,835 shares of the Common
Stock at a price of $26.04 per share. The closing date of the exercise
would be December 7, 1990 (or, if later, the date on which such shares were
approved for listing on the New York Stock Exchange). Waste Management
reserved the right to increase its investment in the Company from time to
time in the future. Increases in the ownership of the Common Stock might be
made, through WMNA or otherwise, in the open market, or in privately
negotiated transactions with other shareholders (including Henley) or the
Company, depending upon market conditions from time to time, including the
prevailing price of the Common Stock. Waste Management also reserved the
right to decrease its investment in the Company through transactions such
as those described above.
On December 10, 1990, Waste Management exercised the option to
purchase 440,835 shares of the Common Stock, at a price of $26.04 per
share, that had been granted to WMNA under the Modification Agreement (as
amended by the Letter Agreement) and assigned by WMNA to Waste Management
as described above
On March 11, 1991, the Company's Board of Directors approved a
two-for-one split of the Common Stock payable in the form of a dividend.
The split was effected through the issuance on April 8, 1991 of one
additional share of Common Stock for each share issued as of March 21,
1991. Pursuant to this stock split, Waste Management received a total of
22,900,370 shares of Common Stock with respect to the 22,900,370 shares of
Common Stock owned by Waste Management immediately prior to the stock
split.
The International Development Agreement dated as of September 30,
1990 by and among the Company, CWM, Waste Management and Waste Management
International, Inc., a wholly owned subsidiary of Waste Management
("International") (the "International Development Agreement"), which was
one of the Ancillary Agreements, provided, among other things, for the
Company to have the option to acquire a 15% interest in the operations of
International (the "International Option"). On July 22, 1991, the Company
exercised the International Option. On August 15, 1991, pursuant to an
Exchange Agreement (the "Exchange Agreement") dated as of August 15, 1991
by and among the Company, Waste Management, CWM, International and Waste
Management Europe N.V., a Netherlands corporation and, prior to the
consummation of the International Option exercise, a wholly-owned
subsidiary of International, into which substantially all of the operations
of International had been restructured ("WME"), the Company purchased
6,545,250 shares of common stock, 2 NLG par value per share, of WME,
representing a 15% interest in the common equity of WME. As consideration
for such WME shares, the Company assigned to WME a demand promissory note
issued by International in the principal amount of $168,974,000. The
Company obtained the note of International from Waste Management as
consideration for the purchase by Waste Management of 5,997,303 shares of
Common Stock. WME used the note from International to redeem certain
Preference Shares issued by WME to International.
In connection with the consummation of the International Option
exercise, the Company, Waste Management, CWM, International and WME entered
into an Amendment and Restatement of the International Development
Agreement (the "Amended Development Agreement") dated as of August 15,
1991, which superseded the International Development Agreement.
The foregoing discussion of the International Option, the exercise
thereof, the Exchange Agreement and the Amended Development Agreement is
qualified in its entirety by reference to the Exchange Agreement and
Amended Development Agreement filed as exhibits 14 and 15 to Amendment 11
to this Schedule and incorporated herein by this reference.
On March 16, 1993, the Company filed a registration statement on
Form S-3 under the Securities Act of 1993, as amended, to permit CWM to
dispose of the 2,725,724 shares of the Common Stock then held by CWM on a
delayed or continuous basis. The disposition of such Common Stock by CWM
may be effected from time to time in one or more transactions on the New
York Stock Exchange (which may involve block transactions), in special
offerings, in negotiated transactions, or otherwise, at market prices
prevailing at the time of sale, at prices related to such prevailing market
prices, or at negotiated prices.
From time to time since 1994, the Company has repurchased shares of
the Common Stock in the open market and in privately negotiated
transactions. Such share repurchases totaled approximately 3.3 million
shares of the Common Stock in 1994, 7.2 million shares in 1995, and 19.1
million shares in 1996. On February 4, 1997, the Company announced that its
Board of Directors had increased the Company's existing share repurchase
authorization of 10 million shares to 30 million shares, and that the
Company anticipated initiating a "Dutch Auction" tender offer for $350
million. On March 25, 1997, the Company announced that it was deferring
indefinitely its plans to initiate the "Dutch Auction" tender offer. During
1997 through the date hereof, the Company repurchased 5,106,200 shares.
While these share repurchases are not purchases of Common Stock by Waste
Management, the result of such repurchases has been to increase the
percentage of Waste Management's ownership of the Company.
The Company adopted a strategy to exit the water business by
selling its water and wastewater equipment and systems manufacturing
business to U.S. Filter Corporation ("U.S. Filter"), a sale completed in
November 1996. The Company and U.S. Filter subsequently entered into an
agreement whereby U.S. Filter would acquire Wheelabrator EOS Inc., the
Company's water and wastewater operations and maintenance subsidiary, for
approximately $77 million in U.S. Filter stock. The transaction closed on
April 3, 1997. The Company has also restructured and downsized its
biosolids and land application business, including exiting several markets.
The Company's 40% owned subsidiary, Rust International Inc. ("Rust"), the
remainder of whose stock is beneficially owned by Waste Management, has
divested much of its engineering and construction business and industrial
scaffolding business, and has begun to implement plans to divest its
remaining domestic and international engineering and consulting business.
Waste Management International plc ("WM International"), of which the
Company owns 12% directly, plus an additional 4.8% indirectly through its
40% ownership of Rust, sold its 20% interest in Wessex Water plc back to
Wessex. WM International may also sell some of its assets in several
countries in Europe. Waste Management reserves the right to cause the
Company, Rust and WM International to sell or acquire assets from time to
time in the future.
On June 20, 1997, Waste Management offered to acquire all of the
publicly held shares of the Company at a price equal to $15.00 per share.
Between June 20, 1997 and December 8, 1997, Waste Management and the
Company negotiated the terms and provisions of the proposed acquisition. On
December 8, 1997, the boards of directors of the Company, Waste Management
and WMI Merger Sub voted to approve the 1997 Merger Agreement. In the 1997
Merger, all publicly held shares of the Common Stock, other than dissenting
shares, will be converted into the right to receive $16.50 in cash. By
virtue of the 1997 Merger, shares of the Common Stock held by Waste
Management and its subsidiaries will be cancelled. Upon consummation of the
1997 Merger, the Company will be a wholly owned subsidiary of Waste
Management and market trading of shares of the Common Stock will cease. The
respective obligations of Waste Management, WMI Merger Sub and the Company
under the 1997 Merger Agreement are subject to certain conditions,
including without limitation the condition that the merger be approved by
the holders of a majority of the outstanding shares of the Common Stock not
directly or indirectly owned by Waste Management present and voting at a
special meeting of Company stockholders called for that purpose.
The foregoing discussion of the 1997 Merger and the 1997 Merger
Agreement is qualified in its entirety by reference to the 1997 Merger
Agreement, dated December 8, 1997, among Waste Management, WMI Merger Sub
and the Company, filed as exhibit 16 to Amendment 15 to this
Schedule and incorporated herein by reference.
ITEM 5. Interest in Securities of the Issuer.
(a) As of December 10, 1997, Waste Management was the record owner
of 39,806,820 shares of the Common Stock, WMNA was the record owner of
45,800,740 shares of the Common Stock, CWM was the record owner of
1,025,724 shares of the Common Stock, NGIC was the record owner of
11,800,001 shares of the Common Stock, and MIIC was the record owner of
6,188,525 shares of the Common Stock. As of such date, the shares held by
Waste Management, WMNA, CWM, NGIC and MIIC constituted approximately 65% of
the issued and outstanding shares of the Common Stock. As of December 10,
1997, the following directors or executive officers of Waste Management had
the following beneficial ownership of common stock of the Company, which in
each case amounts to less than one percent of the Company's outstanding
stock: Mr. Dean L. Buntrock-116,377 shares; Mr. Jerry E. Dempsey-34,336
shares; Mr. Donald F. Flynn-45,245 shares; Mr. Herbert A. Getz-73,414
shares; Mr. Paul M. Montrone-256,000 shares; and Mr. Mark T. Spears-6
shares. Such beneficial ownership consists of shares owned directly, except
for the 256,000 shares beneficially owned by Mr. Montrone, which beneficial
ownership consists of rights to acquire shares, 1000 shares owned
indirectly by Mr. Dempsey and 6 shares owned indirectly by Mr. Spears.
These numbers exclude the shares beneficially owned by Waste Management, of
which the officers and directors of Waste Management could be deemed to
have beneficial ownership if they are deemed affiliates of Waste
Management. Each of them disclaims beneficial ownership of the shares of
the Common Stock beneficially owned by Waste Management.
(b) Waste Management has the sole power to vote and dispose of the
104,621,810 shares of Common Stock owned by Waste Management, WMNA, NGIC,
MIIC and CWM. Each of Messrs. Buntrock, Dempsey and Flynn has sole voting
and investment power over the shares directly owned by him as shown in Part
(a) of this Item 5, and Mr. Getz has shared voting and investment power
over such shares with his spouse. Mr. Dempsey has sole voting and
investment power over the shares indirectly held by him as shown in Part
(a) of the Item 5.
(c) During the past 60 days neither Waste Management nor any
subsidiary of Waste Management (other than the Company) nor, to the best
knowledge of Waste Management, any of its executive officers or directors,
has effected any transactions in the Common Stock, other than negotiation
and execution of the 1997 Merger Agreement, except that Mr. Getz exercised
an option to acquire 240,000 shares of the Common Stock on November 28,
1997, and in connection therewith sold 134,000 shares of the Common Stock
in a market transaction on December 10, 1997, to cover the exercise price
of such option, and effected the withhholding by the Company of 32,586
shares of the Common Stock to cover withholding taxes in connection with
the option exercise.
(d) No person other than Waste Management has the right to receive
or the power to direct the receipt of dividends from, or the proceeds from
the sale of, the Common Stock beneficially owned by Waste Management. Waste
Management, WMNA, NGIC, MIIC and CWM each has the exclusive right to
receive dividends from, or the proceeds from the sale of, all of the shares
of the Common Stock held by it.
(e) Not applicable.
ITEM 6. Contracts, Arrangements, Understandings or Relationships with
Respect to Securities of the Issuer.
Except as provided in the Merger Agreement, the Modification
Agreement, the WMNA Merger Agreement, the Amendment, the Ancillary
Agreements, the Letter Agreement and the 1997 Merger Agreement, and as
disclosed elsewhere in this Amendment, the Statement and the previous
Amendments to the Statement, none of Waste Management, WMNA, CWM, NGIC and
MIIC have any contracts, arrangements, understandings or relationships
(legal or otherwise) among the persons named in Item 2 and between such
persons and any person with respect to any securities of the Company,
including but not limited to transfer or voting of any securities of the
Company, finders' fees, joint ventures, loan or option arrangements, puts
or calls, guarantees of profits, division of profits or loss, or the giving
or withholding of proxies.
ITEM 7. Materials to be Filed as Exhibits.
Exhibit No. Description Page*
1 Agreement and Plan of Merger and
Reorganization, dated June 14, 1989, among
WGI, RHI and WTI (incorporated by reference to
Annex I to Joint Proxy Statement/Prospects
dated July 24, 1989 including in WGI's
Registration Statement on Form S-4,
Registration No. 33-30113).
2 Amended and Restated Organizational Agreement,
dated as of June 30, 1988, among Henley, WTI
and Waste Management (incorporated by
reference to Exhibit 2.01 to WTI's
Registration Statement on Form S-4,
Registration No. 33-23139).
3 Amendment No. 1 to Amended and Restated
Organizational Agreement, dated August 12,
1988 (incorporated by reference to Exhibit 2
to Waste Management and WMNA's Schedule 13D
dated August 18, 1988 filed with respect to
the WTI Common Stock).
4 Agreement and Plan of Merger, dated as of July
14, 1988, among WTI, Holdings Sub and Old WTI
(incorporated by reference to Exhibit 2.02 to
WTI's Registration Statement on Form S-4,
Registration No. 33-23139).
5 Modification Agreement, dated August 24, 1989,
among the Company, RHI, WTI, Henley and WMNA
(filed with the original Statement).
6 Agreement and Plan of Merger and
Reorganization, dated March 30, 1990, among
Waste Management, Sub and the Company (filed
with Amendment 2 to the Statement).
7 Proxy Statement-Prospectus of Waste Management and the
Company, dated July 30, 1990 (filed with Amendment 3 to the
Statement).
8 Restated Funding Agreement, dated September 7,
1990, among the Company, Waste Management and
RHI (filed with Amendment 4 to the Statement).
9 International Development Agreement, dated
September 7, 1990, among the Company, Waste
Management, Chemical Waste Management, Inc.
("CWM"), and Waste Management International,
Inc. ("WMII") (filed with Amendment 4 to the
Statement).
10 Medical Waste Option Agreement, dated
September 7, 1990, between the Company and
WMNA (filed with Amendment 4 to the
Statement).
11 Intellectual Property Licensing Agreement,
dated September 7, 1990, among the Company,
WMNA and WMII (filed with Amendment 4 to the
Statement).
12 Master Intercorporate Agreement, dated
September 7, 1990, among the Company, Waste
Management and CWM (filed with Amendment 4 to
the Statement).
13 Letter Agreement, dated October 25, 1990,
among the Company, WMNA, Henley, Henley II and
RHI (filed with Amendment 6 to the Statement).
14 Amendment and Restatement of Development
Agreement dated as of August 15, 1991 by and
among the Company, Waste Management, CWM,
International and WME (filed with Amendment 7
to the Statement).
15 Exchange Agreement dated as of August 15, 1991
by and among the Company, Waste Management,
CWM, International and WME (filed with
Amendment 11 to the Statement).
16 Agreement and Plan of Merger, dated December
8, 1997, among Waste Management, WMNA Sub and
the Company (filed with Amendment 15 to the
Statement).
APPENDIX I
Executive Officers and Directors
Directors Principal Occupation
H. Jesse Arnelle Attorney
Dean L. Buntrock Former Chairman & Chief Executive
Officer of Waste Management
Dr. Pastora San Juan Cafferty Professor, University of Chicago
School of Social Service
Administration
Jerry E. Dempsey Retired
Dr. James B. Edwards President, Medical University of
South Carolina
Donald F. Flynn Chairman and President of Flynn
Enterprises, Inc.
Roderick M. Hills President of Hills Enterprises Ltd.
and Vice Chairman of the Board of
Oak Industries, Inc.
Robert S. Miller Acting Chief Executive Officer and
Chairman of the Board of Waste
Management
Paul M. Montrone President and Chief Executive
Officer of Fisher Scientific
International, Inc.
Peer Pedersen Attorney
James R. Peterson Retired
John C. Pope Chairman of the Board of MotivePower
Industries, Inc.
Steven G. Rothmeier Chairman and Chief Executive Officer
of Great Northern Capital
Alexander B. Trowbridge President of Trowbridge Partners, Inc.
Executive Officers (who are not Directors)
Donald R. Chappel Vice President and Acting Chief
Financial Officer of Waste
Management
Jerry W. Candle Senior Vice President of Waste Management
Michael J. Cole Senior Vice President of Waste Management
L. Michael Collier Senior Vice President of Waste Management
Joseph M. Holsten Executive Vice President and Chief
Operating Officer of Waste
Management
Mark T. Spears Vice President and Controller of
Waste Management
Herbert A. Getz Senior Vice President, General
Counsel and Secretary of Waste
Management
James E. O'Connor Senior Vice President of Waste Management
D. P. Payne Senior Vice President of Waste Management
SIGNATURES
After reasonable inquiry and to the best of its knowledge and
belief, the undersigned corporation certifies that the information set
forth in this statement is true, complete and correct.
Dated: December 12, 1997
WASTE MANAGEMENT, INC.
By: /s/ Herbert A. Getz
____________________________
Herbert A. Getz
Senior Vice President
and Secretary
AGREEMENT AND PLAN OF MERGER
BY AND AMONG
WASTE MANAGEMENT, INC.,
WMI MERGER SUB, INC.
AND
WHEELABRATOR TECHNOLOGIES INC.
December 8, 1997
TABLE OF CONTENTS
Page
RECITALS...............................................................1
ARTICLE I
THE MERGER; EFFECTIVE TIME; CLOSING
1.1 The Merger....................................................1
1.2 Effective Time................................................2
1.3 Closing.......................................................2
ARTICLE II
CERTIFICATE OF INCORPORATION AND BYLAWS
OF THE SURVIVING CORPORATION
2.1 Certificate of Incorporation..................................2
2.2 Bylaws........................................................3
ARTICLE III
DIRECTORS AND OFFICERS OF THE SURVIVING CORPORATION
3.1 Directors.....................................................3
3.2 Officers......................................................3
ARTICLE IV
MERGER CONSIDERATION; CONVERSION OR CANCELLATION OF
SHARES IN THE MERGER
4.1 Merger Consideration; Conversion or Cancellation
of Shares in the Merger.......................................3
4.2 Payment for Shares in the Merger..............................4
4.3 Transfer of Shares After the Effective Time...................5
4.4 Stock Options.................................................6
4.5 Dissenting Shares.............................................7
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
5.1 Corporate Organization and Qualification......................8
5.2 Capitalization................................................8
5.3 Authority Relative to This Agreement..........................9
5.4 Consents and Approvals; No Violation..........................9
5.5 SEC Reports; Financial Statements............................10
5.6 Absence of Certain Changes or Events.........................11
5.7 Undisclosed Liabilities......................................11
5.8 Litigation...................................................12
5.9 Schedule 13E-3; Proxy Statement..............................12
5.10 Compliance with Applicable Laws..............................13
5.11 Opinion of Investment Bankers................................13
ARTICLE VI
REPRESENTATIONS AND WARRANTIES OF PARENT
AND MERGER SUB
6.1 Corporate Organization and Qualification.....................13
6.2 Authority Relative to This Agreement.........................14
6.3 Consents and Approvals; No Violation.........................14
6.4 Schedule 13E-3; Proxy Statement..............................15
6.5 Payment of Merger Consideration..............................16
6.6 Interim Operations of Merger Sub.............................16
6.7 Ownership of Shares..........................................16
6.8 Brokers, Finders or Financial Advisors.......................16
ARTICLE VII
ADDITIONAL COVENANTS AND AGREEMENTS
7.1 Stockholders' Approval.......................................16
7.2 Schedule 13E-3; Proxy........................................17
7.3 All Reasonable Efforts.......................................17
7.4 Access to Information........................................18
7.5 Publicity....................................................18
7.6 Indemnification of Directors and Officers....................19
7.7 Conduct of Business of Merger Sub............................20
7.8 Company Capital Stock........................................20
ARTICLE VIII
CONDITIONS
8.1 Condition to Each Party's Obligations........................21
8.2 Additional Conditions to the Obligations of Parent
and Merger Sub...............................................21
8.3 Additional Conditions to the Obligations of the
Company......................................................22
ARTICLE IX
TERMINATION
9.1 Termination by Mutual Consent................................23
9.2 Termination by Parent, Merger Sub or the Company.............23
9.3 Termination by Parent or Merger Sub..........................24
9.4 Termination by the Company...................................24
9.5 Effect of Termination........................................24
ARTICLE X
MISCELLANEOUS AND GENERAL
10.1 Payment of Expenses..........................................25
10.2 Survival of Representations and Warranties...................25
10.3 Modification or Amendment....................................25
10.4 Waiver of Conditions.........................................25
10.5 Counterparts.................................................25
10.6 Governing Law................................................26
10.7 Notices......................................................26
10.8 Entire Agreement; Assignment.................................27
10.9 Parties in Interest..........................................27
10.10 Certain Definitions..........................................27
10.11 Obligation of Parent.........................................28
10.12 Validity.....................................................28
10.13 Captions.....................................................29
AGREEMENT AND PLAN OF MERGER
AGREEMENT AND PLAN OF MERGER (this "Agreement"),
dated as of December 8, 1997, by and among Waste Management, Inc., a
Delaware corporation ("Parent"), WMI Merger Sub, Inc. a Delaware
corporation and a [wholly owned] subsidiary of Parent ("Merger Sub"), and
Wheelabrator Technologies Inc., a Delaware corporation (the "Company").
RECITALS
WHEREAS, the Boards of Directors of Parent and Merger
Sub each have determined that it is in the best interests of their
respective stockholders for Merger Sub to merge with and into the Company
upon the terms and subject to the conditions of this Agreement; and
WHEREAS, the Board of Directors of the Company, based
upon the unanimous recommendation of a special committee of independent
directors of the Company (the "Special Committee"), has determined that
it is in the best interests of the Company's stockholders (other than
Parent, Merger Sub and their affiliates) for Merger Sub to merge with and
into the Company upon the terms and subject to the conditions of this
Agreement.
NOW, THEREFORE, in consideration of the foregoing and
the mutual representations, warranties, covenants and agreements set
forth herein, Parent, Merger Sub and the Company hereby agree as follows:
ARTICLE I
THE MERGER; EFFECTIVE TIME; CLOSING
1.1 The Merger. Subject to the terms and conditions
of this Agreement and the Delaware General Corporation Law (the "DGCL"),
at the Effective Time (as defined in Section 1.2), the Company and Merger
Sub shall consummate a merger (the "Merger") in which (a) Merger Sub
shall be merged with and into the Company and the separate corporate
existence of Merger Sub shall thereupon cease, (b) the Company shall be
the successor or surviving corporation in the Merger and shall continue
to be governed by the laws of the State of Delaware, and (c) the separate
corporate existence of the Company with all its rights, privileges,
immunities, powers and franchises shall continue unaffected by the
Merger. The corporation surviving the Merger is sometimes hereinafter
referred to as the "Surviving Corporation." The Merger shall have the
effects set forth in the DGCL.
1.2 Effective Time. Subject to the terms and
conditions of this Agreement, Parent, Merger Sub and the Company will
cause an appropriate Certificate of Merger (the "Certificate of Merger")
to be executed and filed on the date of the Closing (as defined in
Section 1.3) (or on such other date as the parties may agree) with the
Secretary of State of the State of Delaware as provided in the DGCL. The
Merger shall become effective at the time and on the date on which the
Certificate of Merger has been duly filed with the Secretary of State of
the State of Delaware or such other time as is agreed upon by the parties
and specified in the Certificate of Merger, and such time is hereinafter
referred to as the "Effective Time."
1.3 Closing. The closing of the Merger (the
"Closing") shall take place (a) at the offices of Waste Management, Inc.
in Oak Brook, Illinois, at 10:00 a.m. local time on the first business
day on which the last of the conditions set forth in Article VIII hereof
shall be fulfilled or waived in accordance with this Agreement or (b) at
such other place, time and date as the parties may agree (the "Closing
Date").
ARTICLE II
CERTIFICATE OF INCORPORATION AND BYLAWS
OF THE SURVIVING CORPORATION
2.1 Certificate of Incorporation. The Certificate of
Incorporation of Merger Sub, as in effect immediately prior to the
Effective Time, shall be the Certificate of Incorporation of the
Surviving Corporation, except that Article I thereof shall be amended to
read in its entirety as follows: "The name of the Corporation is
Wheelabrator Technologies, Inc."
2.2 Bylaws. The Bylaws of Merger Sub, as in effect
immediately prior to the Effective Time, shall be the Bylaws of the
Surviving Corporation.
ARTICLE III
DIRECTORS AND OFFICERS OF THE SURVIVING CORPORATION
3.1 Directors. The directors of Merger Sub at the
Effective Time shall, from and after the Effective Time, be the directors
of the Surviving Corporation until their successors are duly elected or
appointed and qualified or until their earlier death, resignation or
removal in accordance with the Surviving Corporation's Certificate of
Incorporation and Bylaws.
3.2 Officers. The officers of the Company at the
Effective Time shall, from and after the Effective Time, be the officers
of the Surviving Corporation until their successors are duly elected or
appointed and qualified or until their earlier death, resignation or
removal in accordance with the Surviving Corporation's Certificate of
Incorporation and Bylaws.
ARTICLE IV
MERGER CONSIDERATION; CONVERSION OR CANCELLATION OF
SHARES IN THE MERGER
4.1 Merger Consideration; Conversion or Cancellation
of Shares in the Merger. At the Effective Time, by virtue of the Merger
and without any action on the part of the holders of any shares (the
"Shares") of common stock, par value $.01 per share, of the Company (the
"Company Common Stock") or capital stock of Merger Sub:
(a) Each Share issued and outstanding immediately
prior to the Effective Time (other than Shares to be cancelled pursuant
to Section 4.1(c) and any Dissenting Shares (as hereinafter defined in
Section 4.5)) shall be converted into the right to receive $16.50 in
cash, payable to the holder thereof, without interest thereon (the
"Merger Consideration"), upon surrender of the certificate representing
such Share.
(b) All Shares to be converted into the right to
receive the Merger Consideration pursuant to Section 4.1(a) shall cease
to be outstanding, be cancelled and retired and cease to exist, and each
holder of a certificate representing any such Shares shall thereafter
cease to have any rights with respect thereto, except the right to
receive therefor, upon the surrender of such certificate in accordance
with Section 4.2, the Merger Consideration.
(c) At the Effective Time, each Share issued and
outstanding and owned by Parent, Merger Sub or any direct or indirect
subsidiary of Parent (collectively, the "Parent Companies") or any of the
Company's direct or indirect wholly owned subsidiaries and all treasury
shares held by the Company immediately prior to the Effective Time shall
cease to be outstanding, be cancelled and retired without payment of any
consideration therefor and cease to exist.
(d) At the Effective Time, each share of common stock
of Merger Sub issued and outstanding immediately prior to the Effective
Time shall be converted into one validly issued, fully paid and
nonassessable share of common stock of the Surviving Corporation.
4.2 Payment for Shares in the Merger. The manner of
making payment for Shares in the Merger shall be as follows:
(a) Pursuant to an agreement in form and substance
reasonably acceptable to the Company (the "Paying Agent Agreement") to be
entered into on or before the Effective Time between Merger Sub and a
paying agent (the "Paying Agent"), at or prior to the Effective Time,
Merger Sub shall deposit or cause to be deposited with the Paying Agent,
in trust for the benefit of the holders of Shares, cash in immediately
available funds in amounts requested by the Paying Agent from time to
time sufficient to pay the Merger Consideration to holders of
Certificates in accordance with Section 4.2(b) (the "Merger Payment
Fund").
(b) As soon as reasonably practicable after the
Effective Time, the Paying Agent shall mail to each holder of record
(other than holders of certificates of Shares referred to in Section
4.1(c) or Dissenting Shares) of a certificate or certificates which
immediately prior to the Effective Time represented outstanding Shares
(the "Certificates") (i) a form of letter of transmittal (in form and
substance reasonably acceptable to the Company which shall specify that
delivery shall be effected, and risk of loss and title to the
Certificates shall pass, only upon proper delivery of the Certificates to
the Paying Agent) and (ii) instructions for use in effecting the
surrender of the Certificates for payment therefor. Upon surrender of
Certificates for cancellation to the Paying Agent, together with such
letter of transmittal duly executed and any other required documents, the
holder of such Certificates shall be entitled to receive for each of the
Shares represented by such Certificates the Merger Consideration, and the
Certificates so surrendered shall forthwith be cancelled. Until so
surrendered, such Certificates shall represent solely the right to
receive the Merger Consideration with respect to each of the Shares
represented thereby. No interest on the Merger Consideration will be
paid. Notwithstanding the foregoing, neither the Paying Agent nor any
party hereto shall be liable to a holder of Shares for any Merger
Consideration delivered to a public official pursuant to applicable
escheat law.
(c) Any portion of the Merger Consideration made
available to the Paying Agent which remains unclaimed by the former
stockholders of the Company for six months after the Effective Time shall
be delivered to Parent, upon demand of Parent, and any former
stockholders of the Company shall thereafter look only to Parent for
payment of their claim for the Merger Consideration for the Shares.
4.3 Transfer of Shares After the Effective Time. No
transfers of Shares shall be made on the stock transfer books of the
Company after the close of business on the day prior to the date of the
Effective Time.
4.4 Stock Options.
(a) Subject to the terms and conditions of the Option
Plans (as defined below) and of any option agreements (the "Option
Agreements") entered into thereunder, and subject to the receipt of any
consents, approvals or waivers necessary under any such plans or
agreements, after the Effective Time, each option (an "Option") which has
been granted under the 1986 Stock Plan for Executive Employees of WTI,
the 1988 Stock Plan for Executive Employees of WTI, the WTI 1991 Stock
Option Plan for Non-Employee Directors or the WTI 1992 Stock Option Plan
(collectively, the "Option Plans") and is outstanding at the Effective
Time, whether or not then exercisable, shall be assumed by Parent and
shall be deemed to constitute an option to acquire, on the terms and
conditions as were applicable under the respective Option, that number of
Parent Common Shares (as defined below) equal to the product of (i) that
number of Shares as the holder of the Option would have been entitled to
receive had such holder exercised the Option in full immediately prior to
the Effective Time (not taking into account whether the Option was in
fact exercisable at such time) and (ii) the quotient derived by dividing
the Merger Consideration by the average of the per-share closing prices
on the NYSE of Parent Common Shares (as reported in the NYSE Composite
Transactions) during the 10 consecutive trading days ending on the
trading day immediately prior to the Effective Time, but rounded up to
the next whole number of Parent Common Shares, at a price per Share equal
to (x) the exercise price per Share subject to the Option divided by (y)
the quotient described in Section 4.4(a)(ii) above. As soon as
practicable after the Effective Time, Parent shall deliver to each holder
of an Option an appropriate notice setting forth the holder's right to
acquire Parent Common Shares, and the Option agreements of each holder
shall be deemed to be appropriately amended so that the Options shall
represent rights to acquire Parent Common Shares on the same terms and
conditions as contained in the outstanding Options. "Parent Common
Shares" shall mean shares of common stock, par value $1.00 per share, of
Parent.
(b) Parent shall take all corporate action necessary
to reserve for issuance a sufficient number of Parent Common Shares for
delivery upon exercise of the Options assumed in accordance with Section
4.4(a).
(c) If the consents, approvals and waivers necessary
under the Option Plans and Option Agreements to effect the transactions
contemplated by Section 4.4(a) are not obtained prior to the Effective
Time, the Merger shall have the effect with respect to the Options as
provided under the Option Plans and Option Agreements. Nothing in this
Section 4.4 shall constitute or require any amendment to any benefit plan
of the Company other than the Option Plans and Option Agreements and all
such other plans shall be treated in accordance with their respective
terms.
4.5 Dissenting Shares.
(a) Notwithstanding any other provision of this
Agreement to the contrary, Shares that are outstanding immediately prior
to the Effective Time and which are held by stockholders who shall have
demanded properly in writing appraisal for such Shares in accordance with
DGCL Section 262 and who shall not have withdrawn such demand or
otherwise have forfeited appraisal rights (collectively, the "Dissenting
Shares") shall not be converted into or represent the right to receive
the Merger Consideration. Such stockholders shall be entitled to receive
payment of the appraised value of the Shares held by them in accordance
with the provisions of such Section 262, except that all Dissenting
Shares held by stockholders who shall have failed to perfect or who
effectively shall have withdrawn or lost their rights to appraisal of
such Shares under such Section 262 shall thereupon be deemed to have been
converted into and to have become exchangeable, as of the Effective Time,
for the right to receive, without any interest thereon, the Merger
Consideration, upon surrender, in the manner provided in Section 4.2, of
the Certificates that formerly evidenced such Shares.
(b) The Company shall give Parent (i) prompt notice
of any demands for appraisal received by the Company, withdrawals of such
demands and any other instruments served pursuant to the DGCL and
received by the Company and (ii) the opportunity to direct all
negotiations and proceedings with respect to demands for appraisal under
the DGCL. The Company shall not, except with the prior written consent of
Parent, make any payment with respect to any demands for appraisal, or
offer to settle, or settle, any such demands.
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company hereby represents and warrants to Parent
and Merger Sub that:
5.1 Corporate Organization and Qualification. Each of
the Company and its Significant Subsidiaries (as hereinafter defined in
Section 10.10) (i) is a corporation duly organized, validly existing and
in good standing under the laws of the jurisdiction of its incorporation,
(ii) is qualified and in good standing as a foreign corporation in each
jurisdiction where the properties owned, leased or operated, or the
business conducted, by it require such qualification and (iii) has all
requisite power and authority to own its properties and to carry on its
business as it is now being conducted, except where failure to so
qualify, be in good standing or have such power and authority would not,
individually or in the aggregate, have a Material Adverse Effect (as
hereinafter defined in Section 10.10).
5.2 Capitalization. The authorized capital stock of
the Company consists of (i) 250,000,000 shares of Company Common Stock,
of which, as of November 30, 1997, 157,198,771 shares were issued and
outstanding, and (ii) 25,000,000 shares of Company NonVoting Common
Stock, of which, as of November 30, 1997, no shares were issued and
outstanding, and (iii) 150,000,000 shares of preferred stock, par value
$.01 per share, of which, as of November 30, 1997, no shares were issued
and outstanding. All of the outstanding Shares have been duly authorized
and validly issued and are fully paid and nonassessable. As of November
30, 1997, options to acquire 4,268,618 Shares were reserved for issuance
upon exercise of outstanding Options pursuant to the Option Plans. Except
as set forth above, as otherwise known to Parent or Merger Sub, for
vested options to acquire Shares pursuant to the Option Plans and for
Parent's option to acquire Shares pursuant to Section 6.08 of the
Intercorporate Agreement, dated as of September 3, 1986, by and between
Parent and the Company, there are not as of the date hereof any
outstanding or authorized options, warrants, calls, rights (including
preemptive rights), commitments or any other agreements of any character
to which the Company is a party, or by which it may be bound, requiring
it to issue, transfer, sell, purchase, redeem or acquire any shares of
capital stock or any securities or rights convertible into, exchangeable
for, or evidencing the right to subscribe for, any shares of capital
stock of the Company.
5.3 Authority Relative to This Agreement. The Company
has the requisite corporate power and authority to execute and deliver
this Agreement and to consummate the transactions contemplated hereby.
This Agreement and the consummation by the Company of the transactions
contemplated hereby have been duly and validly authorized by the Board of
Directors of the Company, and no other corporate proceedings on the part
of the Company are necessary to authorize this Agreement or to consummate
the transactions contemplated hereby (other than the approval of this
Agreement and the Merger by the Stockholders of the Company in accordance
with Section 251 of the DGCL, the Company's Certificate of Incorporation
and Section 8.1(a) hereof). This Agreement has been duly and validly
executed and delivered by the Company and, assuming this Agreement
constitutes the valid and binding agreement of Parent and Merger Sub,
constitutes the valid and binding agreement of the Company, enforceable
against the Company in accordance with its terms, except that the
enforcement hereof may be limited by (i) bankruptcy, insolvency,
reorganization, moratorium or other similar laws now or hereafter in
effect relating to creditors' rights generally and (ii) general
principles of equity (regardless of whether enforceability is considered
in a proceeding in equity or at law).
5.4 Consents and Approvals; No Violation. Neither the
execution and delivery of this Agreement by the Company nor the
consummation by the Company of the transactions contemplated hereby will
(a) conflict with or result in any breach of any provision of the
Certificate of Incorporation or Bylaws of the Company; (b) require of the
Company or its subsidiaries any consent, approval, authorization or
permit of, or filing with or notification to, any governmental or
regulatory authority, except (i) pursuant to the applicable requirements
of the Securities Exchange Act of 1934, as amended (the "Exchange Act"),
and the rules and regulations promulgated thereunder, (ii) the filing of
the Certificate of Merger pursuant to the DGCL, (iii) pursuant to state
blue sky takeover statutes, (iv) pursuant to New York Stock Exchange
delisting requirements or (v) where the failure to obtain such consent,
approval, authorization or permit, or to make such filing or
notification, would not, individually or in the aggregate, have a
Material Adverse Effect (as defined in Section 10.10(c)); (c) except as
otherwise known to Parent or Merger Sub result in a violation or breach
of, or constitute a default under any of the terms, conditions or
provisions of any note, license, agreement or other instrument or
obligation by which the Company or any of its Significant Subsidiaries
may be bound, except for such violations, breaches and defaults as to
which requisite waivers or consents have been obtained or which would
not, individually or in the aggregate, have a Material Adverse Effect; or
(d) except as otherwise known to Parent or Merger Sub violate any order,
writ, injunction, decree, statute, rule or regulation applicable to the
Company or any of its subsidiaries, except for violations which would
not, individually or in the aggregate, have a Material Adverse Effect.
5.5 SEC Reports; Financial Statements.
(a) Except as otherwise known to Parent or Merger
Sub, the Company has filed all periodic reports required to be filed by
it since January 1, 1997, with the Securities and Exchange Commission
(the "SEC") pursuant to the federal securities laws and the SEC rules and
regulations thereunder, all of which as of their respective dates
complied in all material respects with all applicable requirements of the
Exchange Act (collectively, the "Company SEC Reports"). None of the
Company SEC Reports, including, without limitation, any financial
statements or schedules included therein, as of their respective dates,
contained any untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary in order to make
the statements therein, in light of the circumstances under which they
were made, not misleading provided, however, that no representation or
warranty is made with respect to those portions of the Company SEC
Reports that address Rust International Inc. ("Rust") or Waste Management
International plc ("WMI").
(b) Except as otherwise known to Parent or Merger
Sub, the consolidated financial statements (including the related notes
thereto) of the Company included in the Company SEC Reports complied in
all material respects with applicable accounting requirements and the
published rules and regulations of the SEC with respect thereto, have
been prepared in accordance with generally accepted accounting principles
applied on a basis consistent with prior periods (except as otherwise
noted therein) and presented fairly the consolidated financial position
of the Company and its consolidated subsidiaries as of their respective
dates, and the consolidated results of their operations and cash flows
for the periods presented therein (subject, in the case of the unaudited
interim financial statements, to normal year-end adjustments and the
absence of notes thereto); provided, however, no representation or
warranty is made with respect to those portions of the Company's
consolidated financial statements provided to the Company for inclusion
in such financial statements by Rust or WMI.
5.6 Absence of Certain Changes or Events. Since the
date of this Agreement, the business of the Company has been carried on
only in the ordinary and usual course, and the Company has not suffered
any Material Adverse Effect.
5.7 Undisclosed Liabilities. Except as disclosed in
the Company SEC Reports filed prior to the date of this Agreement, as
contemplated by this Agreement or as otherwise known to Parent or Merger
Sub at or prior to the date of this Agreement, there are no liabilities
or obligations of the Company or its subsidiaries of any kind whatsoever,
whether accrued, contingent, absolute or otherwise, that would be
required by generally accepted accounting principles to be reflected on a
consolidated balance sheet of the Company, other than liabilities or
obligations (i) incurred in the ordinary course of business consistent
with past practice since the date of this Agreement, or (ii) which would
not, individually or in the aggregate, have a Material Adverse Effect.
5.8 Litigation. Except as disclosed in the Company
SEC Reports filed prior to the date of this Agreement, as otherwise known
by Parent or Merger Sub or for any litigation relating to the
transactions contemplated by this Agreement, (i) there are no actions,
claims, suits, proceedings or governmental investigations pending or, to
the knowledge of the Company, threatened against or involving the Company
or any of its subsidiaries which, individually or in the aggregate, are
reasonably likely to have a Material Adverse Effect, and (ii) there are
no judgments, decrees, injunctions, rules or orders of any court or
governmental or regulatory authority applicable to the Company or any of
its subsidiaries, which, individually or in the aggregate, would have a
Material Adverse Effect.
5.9 Schedule 13E-3; Proxy Statement. None of the
information to be supplied by and relating to the Company for inclusion
or incorporation by reference in the Schedule 13E-3 or the Proxy
Statement (as such terms are hereinafter defined in Section 7.2) will, at
the time of the mailing of the Proxy Statement and at the time of the
stockholder meeting of the Company in connection with the vote of such
stockholders with respect to the Merger and this Agreement (the
"Stockholder Meeting"), contain any untrue statement of a material fact
or omit to state any material fact required to be stated therein or
necessary in order to make the statements therein, in light of the
circumstances under which they are made, not misleading. If at any time
prior to the Effective Time any event with respect to the Company should
occur and is required to be described in an amendment of, or a supplement
to, the Proxy Statement or the Schedule 13E-3, such event shall be so
described, and such amendment or supplement shall be promptly filed with
the SEC and, as required by law, disseminated to the stockholders of the
Company. With respect to the information relating to the Company, the
Schedule 13E-3 and the Proxy Statement will comply as to form in all
material respects with the requirements of the Exchange Act. For purposes
of this Section 5.9, any statement which is made or incorporated by
reference in the Proxy Statement or the Schedule 13E- 3 shall be deemed
modified or superseded to the extent any later filed document
incorporated by reference in the Proxy Statement or the Schedule 13E-3 or
any statement included in the Proxy Statement or the Schedule 13E-3
modifies or supersedes such earlier statement.
5.10 Compliance with Applicable Laws. Except as
otherwise known to Parent or Merger Sub, the Company and its subsidiaries
hold all permits, licenses, variances, exemptions, orders, franchises and
approvals of all governmental or regulatory authorities necessary for the
lawful conduct of its business, except where the failure to so hold would
not, individually or in the aggregate, have a Material Adverse Effect
(the "Company Permits"). Except as otherwise known to Parent or Merger
Sub, the Company and its subsidiaries are in compliance with the terms of
the Company Permits, except where the failure so to comply would not,
individually or in the aggregate, have a Material Adverse Effect. Except
as disclosed in the Company SEC Reports filed prior to the date of this
Agreement, the business of the Company is not being conducted in
violation of any law, ordinance or regulation of any governmental or
regulatory authorities, except for possible violations which,
individually or in the aggregate, would not have a Material Adverse
Effect.
5.11 Opinion of Investment Bankers. The Special
Committee has received the opinion (the "Fairness Opinion") of each of
Goldman, Sachs & Co. and Lazard Freres & Co. L.L.C. (each an "Investment
Banker"), the Special Committee's investment bankers to the effect that
(i) in the case of Goldman, Sachs & Co., the consideration to be received
in the Merger is fair to the holders of Shares (other than Merger Sub and
its affiliates), and (ii) in the case of Lazard Freres & Co. L.L.C., the
consideration to be received in the Merger is fair to the holders of
Shares (other than Merger Sub and its affiliates) from a financial point
of view.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES OF PARENT
AND MERGER SUB
Parent and Merger Sub represent and warrant, jointly
and severally, to the Company that:
6.1 Corporate Organization and Qualification. Each of
Parent and its Significant Subsidiaries and Merger Sub (i) is a
corporation duly organized, validly existing and in good standing under
the laws of its respective jurisdiction of incorporation, (ii) is
qualified and in good standing as a foreign corporation in each
jurisdiction where the properties owned, leased or operated, or the
business conducted, by it require such qualification and (iii) has all
requisite power and authority to own its properties and to carry on its
business as it is now being conducted, except where the failure to so
qualify, be in such good standing or have such power and authority would
not, individually or in the aggregate, have a Material Adverse Effect.
6.2 Authority Relative to This Agreement. Each of
Parent and Merger Sub has the requisite corporate power and authority to
execute and deliver this Agreement and to consummate the transactions
contemplated hereby. This Agreement and the consummation by Parent and
Merger Sub of the transactions contemplated hereby have been duly and
validly authorized by the respective Boards of Directors of Parent and
Merger Sub, and no other corporate proceedings on the part of Parent or
Merger Sub are necessary to authorize this Agreement or to consummate the
transactions contemplated hereby. This Agreement has been duly and
validly executed and delivered by each of Parent and Merger Sub and,
assuming this Agreement constitutes the valid and binding agreement of
the Company, constitutes the valid and binding agreement of each of
Parent and Merger Sub, enforceable against each of them in accordance
with its terms, except that the enforcement hereof may be limited by (a)
bankruptcy, insolvency, reorganization, moratorium or other similar laws
now or hereafter in effect relating to creditors' rights generally and
(b) general principles of equity (regardless of whether enforceability is
considered in a proceeding at law or in equity).
6.3 Consents and Approvals; No Violation. Neither the
execution and delivery of this Agreement by Parent or Merger Sub nor the
consummation by Parent or Merger Sub of the transactions contemplated
hereby will (a) conflict with or result in any breach of any provision of
the Certificate of Incorporation or the Bylaws, respectively, of Parent
or Merger Sub; (b) require of Parent or its subsidiaries (except the
Company) any consent, approval, authorization or permit of, or filing
with or notification to, any governmental or regulatory authority, except
(i) pursuant to the applicable requirements of the Exchange Act and the
rules and regulations promulgated thereunder, (ii) the filing of the
Certificate of Merger pursuant to the DGCL or (iii) where the failure to
obtain such consent, approval, authorization or permit, or to make such
filing or notification, would not, individually or in the aggregate, have
a Material Adverse Effect; (c) result in a violation or breach of, or
constitute a default under any of the terms, conditions or provisions of
any note, license, agreement or other instrument or obligation by which
Parent or any of its Significant Subsidiaries (other than the Company)
may be bound, except for such violations, breaches and defaults as to
which requisite waivers or consents have been obtained or which would
not, individually or in the aggregate, have a Material Adverse Effect; or
(d) violate any order, writ, injunction, decree, statute, rule or
regulation applicable to Parent or any of its subsidiaries (other than
the Company), except for violations which would not, individually or in
the aggregate, have a Material Adverse Effect.
6.4 Schedule 13E-3; Proxy Statement. None of the
information to be supplied by Parent or Merger Sub for inclusion or
incorporation by reference in the Schedule 13E-3 or the Proxy Statement
(except for information about the Company furnished by the Company to
Parent) will, at the time of the mailing of the Proxy Statement and at
the time of the Stockholder Meeting, contain any untrue statement of a
material fact or omit to state any material fact required to be stated
therein or necessary in order to make the statements therein, in light of
the circumstances under which they are made, not misleading. If at any
time prior to the Effective Time any event with respect to Parent, its
officers and directors or any of its subsidiaries shall occur and is
required to be described in an amendment of, or a supplement to, the
Proxy Statement and the Schedule 13E- 3, such event shall be so
described, and such amendment or supplement shall be promptly filed with
the SEC and, as required by law, disseminated to the stockholders of the
Company. The Schedule 13E-3 and the Proxy Statement (except with respect
to information relating to the Company) will comply as to form in all
material respects with the provisions of the Exchange Act. For purposes
of this Section 6.4, any statement which is made or incorporated by
reference in the Proxy Statement or the Schedule 13E-3 shall be deemed
modified or superseded to the extent any later filed document
incorporated by reference in the Proxy Statement or the Schedule 13E-3 or
any statement included in the Proxy Statement or the Schedule 13E-3
modifies or supersedes such earlier statement.
6.5 Payment of Merger Consideration. Parent has
available the funds necessary to pay the Merger Consideration, and, at
the Effective Time, Merger Sub will have the funds necessary to pay the
Merger Consideration.
6.6 Interim Operations of Merger Sub. Merger Sub was
formed solely for the purpose of engaging in the transactions
contemplated hereby and has not engaged in any business activities or
conducted any operations other than in connection with the transactions
contemplated hereby.
6.7 Ownership of Shares. As of the date hereof, the
Parent owns directly or indirectly 104,621,810 Shares.
6.8 Brokers, Finders or Financial Advisors. No agent,
broker, investment banker, financial advisor or other firm or person is
or will be entitled to any brokers' or finders' fee or any other
commission or similar fee from the Company as a result of Parent or
Merger Sub being a party hereto or consummating any of the transactions
contemplated by this Agreement.
ARTICLE VII
ADDITIONAL COVENANTS AND AGREEMENTS
7.1 Stockholders' Approval.
(a) The Company shall submit this Agreement and the
transactions contemplated hereby for the approval of its stockholders at
the Stockholder Meeting as promptly as practicable and shall use all
reasonable efforts to obtain stockholder approval and adoption of this
Agreement and the transactions contemplated hereby, such Stockholder
Meeting to be held as soon as practicable following the date hereof, and
the Company shall, through its Board of Directors, recommend to its
stockholders approval of the transactions contemplated by this Agreement,
subject to the provisions of Section 7.1(b) hereof.
(b) Notwithstanding the foregoing, the Special
Committee or the Board of Directors of the Company may at any time prior
to the Effective Time withdraw, modify or change any recommendation and
declaration regarding this Agreement or the Merger, or recommend and
declare advisable any other offer or proposal, if in the opinion of the
Special Committee or the Board of Directors after consultation with its
counsel the failure to so withdraw, modify or change its recommendation
and declaration would be inconsistent with its fiduciary duties to its
stockholders under applicable law.
(c) From the date hereof to the Effective Time, the
Parent and Merger Sub shall not sell or otherwise dispose of any of the
Shares owned by them. At the Stockholder Meeting, or any adjournment
thereof, Parent and Merger Sub shall vote the Shares owned by them in
favor of the Merger.
7.2 Schedule 13E-3; Proxy. Parent and the Company
will, as promptly as practicable, prepare and file with the SEC a proxy
statement, a Rule 13e-3 Transaction Statement on Schedule 13E-3 (the
"Schedule 13E-3") and forms of proxy in connection with the vote of the
Company's stockholders with respect to the Merger and this Agreement
(such proxy statements, together with any amendments thereof or
supplements thereto, in each case in the form or forms mailed to the
Company's stockholders, are herein called the "Proxy Statement"). The
Company and Parent will each use all reasonable efforts to cause the
Schedule 13E-3 and the Proxy Statement to be mailed to stockholders of
the Company at the earliest practicable date.
7.3 All Reasonable Efforts. Subject to the terms and
conditions herein provided, each of the parties hereto shall use all
reasonable efforts to take, or cause to be taken, all action and to do,
or cause to be done, all things necessary, proper or advisable under
applicable laws and regulations to consummate and make effective the
transactions contemplated by this Agreement, including using all
reasonable efforts to obtain all necessary or appropriate waivers,
consents and approvals, to effect all necessary registrations, filings
and submissions and to lift any injunction or other legal bar to the
Merger (and, in such case, to proceed with the Merger as expeditiously as
possible) subject to the requisite vote of the stockholders of the
Company.
7.4 Access to Information. Upon reasonable notice,
the Company shall (and shall cause each of its wholly owned subsidiaries
to and use its best efforts to cause its other subsidiaries to) afford to
officers, employees, counsel, accountants and other authorized
representatives of Parent ("Representatives"), reasonable access during
normal business hours throughout the period prior to the Effective Time
to its properties, books and records and, during such period, shall (and
shall cause each of its subsidiaries to) furnish promptly to such
Representatives all information concerning its business, properties and
personnel as may reasonably be requested. Parent agrees that it will, and
will cause its Representatives to, keep all such information confidential
(except as required by law and except for information (i) which is or
becomes generally available to the public (other than pursuant to a
wrongful disclosure by Parent or Merger Sub in violation of this
Agreement), (ii) which was available to Parent on a nonconfidential basis
prior to disclosure to Parent or (iii) which becomes available to Parent
on a nonconfidential basis from a source other than the Company) and will
not, and will cause its Representatives not to, use any information
obtained pursuant to this Section 7.4 for any purpose unrelated to the
consummation of the transactions contemplated by this Agreement.
7.5 Publicity. The parties will consult with each
other and will mutually agree upon any press releases or public
announcements pertaining to the Merger and shall not issue any such press
releases or make any such public announcements prior to such consultation
and agreement, except as may be required by applicable law or by
obligations pursuant to any listing agreement with any national
securities exchange, in which case the party proposing to issue such
press release or make such public announcement shall use all reasonable
efforts to consult in good faith with the other party before issuing any
such press releases or making any such public announcements.
7.6 Indemnification of Directors and Officers.
(a) From and after the Effective Time, the Surviving
Corporation shall maintain, and Parent agrees to cause the Surviving
Corporation to maintain, for not less than six years, director and
officer liability insurance with respect to actions and omissions
occurring prior to the Effective Time to the extent available; provided
that policies with third party insurers of a similar or better A.M. Best
rating and of at least the same coverage containing terms and conditions
that are no less advantageous to the insureds may be substituted
therefor; and provided further that in no event shall the Surviving
Corporation be required to expend to maintain or procure insurance
coverage pursuant to this Section 7.6 an amount per annum in excess of
175% of the current annual premiums for the twelve-month period ended
June 30, 1997 (the "Maximum Premium") with respect to such insurance, or,
if the cost of such coverage exceeds the Maximum Premium, the maximum
amount of coverage that can be purchased or maintained for the Maximum
Premium. Parent shall use its best efforts to cause the Surviving
Corporation to purchase, immediately following the Effective Time, a
pre-paid policy of insurance, for the 6-year period, and covering the
liabilities described in the preceding sentence, provided that Parent
shall not be required to cause the Surviving Corporation to purchase such
a policy if such policy is unavailable at a price that is less than or
equal to the sum of the maximum premiums that the Surviving Company would
be required to pay pursuant to the preceding sentence. In the event any
claim is made against present directors or officers of the Company that
is covered, in whole or in part, or potentially so covered by insurance,
the Surviving Corporation and Parent shall do nothing that would forfeit,
jeopardize, restrict or limit the insurance coverage available for that
claim until the final disposition of that claim. All rights to
indemnification now existing in favor of the present directors or
officers of the Company and its respective subsidiaries as provided in
their respective certificates or articles of incorporation or by-laws or
otherwise in effect on the date hereof shall survive the Merger for a
period of six years, and, during such period, the Certificate of
Incorporation and Bylaws of the Surviving Corporation shall not be
amended to reduce or limit the rights of indemnity of the present
directors or officers of the Company, or the ability of the Surviving
Corporation to indemnify them, nor to hinder, delay or make more
difficult the exercise of such rights of indemnity or the ability to
indemnify. In addition, the Company (and, after the Effective Time, the
Surviving Corporation) shall pay expenses in advance of the final
disposition of any action or proceeding to the full extent permitted by
law to each director or officer of the Company and its respective
subsidiaries seeking indemnification pursuant to the existing rights of
indemnification required to be maintained in the preceding sentence upon
receipt of an undertaking by such director or officer to repay all
amounts so advanced if it is judicially determined that such person is
not entitled to indemnification.
(b) This Section 7.6 shall survive the consummation
of the Merger. The provisions of this Section 7.6 are intended to be for
the benefit of, and shall be enforceable by, the present directors or
officers of the Company, as the case may be. If the Surviving Corporation
or any of its successors or assigns (i) consolidates with or merges into
any other corporation or entity and is not the continuing or surviving
corporation or entity of such consolidation or merger or (ii) transfers
all or substantially all of its properties or assets to any individual,
corporation or any other entity, in each such case, proper provision
shall be made so that the successors and assigns of the Surviving
Corporation shall assume the obligations set forth in this Section 7.6.
7.7 Conduct of Business of Merger Sub. During the
period of time from the date of this Agreement to the Effective Time,
Merger Sub shall not engage in any activities of any nature except as
provided in or contemplated by this Agreement.
7.8 Company Capital Stock. The Company will not, nor
shall Parent or Merger Sub cause the Company to, split, combine,
subdivide or reclassify any shares of the Company's capital stock prior
to the Effective Time or declare a stock dividend or other stock
distribution in Company Common Stock or Company Non-Voting Common Stock
with a record date prior to the Effective Time.
ARTICLE VIII
CONDITIONS
8.1 Condition to Each Party's Obligations. The
respective obligations of each party to effect the Merger are subject to
the satisfaction at or prior to the Effective Time of the following
conditions:
(a) Stockholder Approval. This Agreement and the
Merger shall have been duly approved and adopted at the Stockholder
Meeting by (i) the holders of a majority of the Shares outstanding as of
the record date and (ii) the holders of a majority of the Public Shares.
(b) Injunction. There shall not be in effect any
statute, rule, regulation, executive order, decree, ruling or injunction
or other order of a court or governmental or regulatory agency of
competent jurisdiction directing that the transactions contemplated
herein not be consummated; provided, however, that prior to invoking this
condition each party shall use all reasonable efforts to have any such
decree, ruling, injunction or order vacated.
(c) Governmental Filings and Consents. All
governmental consents, orders and approvals legally required for the
consummation of the Merger and the transactions contemplated hereby shall
have been obtained and be in effect at the Effective Time, except where
the failure to obtain any such consent would not, individually or in the
aggregate, reasonably be expected to have a Material Adverse Effect on
Parent (assuming the Merger had taken place).
(d) Rule 13e-3. The parties shall have complied with
the provisions of Rule 13e-3, including the provisions relating to the
furnishing of the Proxy Statement to the Company's stockholders.
8.2 Additional Conditions to the Obligations of
Parent and Merger Sub. The respective obligations of Parent and Merger
Sub to effect the Merger are subject to the satisfaction at or prior to
the Effective Time of the following conditions, any or all of which may
be waived in whole or in part by Parent or Merger Sub, as the case may
be, to the extent permitted by applicable law.
(a) Representations and Warranties. The
representations and warranties of the Company set forth in this Agreement
shall be true and correct when made and as of the Effective Time with the
same force and effect as though the same had been made on and as of the
Effective Time (except for changes permitted by this Agreement and except
to the extent they relate to a particular date), except for such failures
to be true and correct which, individually or in the aggregate, are not
reasonably likely to have a Material Adverse Effect.
(b) Performance. The Company shall have performed in
all material respects all of its material obligations under this
Agreement theretofore to be performed.
(c) Officer's Certificate. Parent and Merger Sub
shall have received at the Effective Time a certificate dated the
Effective Time and executed by the President or a Vice President of the
Company certifying to the fulfillment of the conditions specified in
Sections 8.2(a) and (b) hereof.
8.3 Additional Conditions to the Obligations of the
Company. The obligation of the Company to effect the Merger is subject to
the satisfaction at or prior to the Effective Time of the following
conditions, any and all of which may be waived in whole or in part by the
Company (with the concurrence of the Special Committee) to the extent
permitted by applicable law:
(a) Representations and Warranties. The
representations and warranties of Parent and Merger Sub set forth in this
Agreement shall be true and correct when made and as of the Effective
Time with the same force and effect as though the same had been made on
and as of the Effective Time (except for changes permitted by this
Agreement and except to the extent they relate to a particular date),
except for such failures to be true and correct which, individually or in
the aggregate, are not reasonably likely to have a Material Adverse
Effect.
(b) Performance. Parent and Merger Sub shall have
performed in all material respects all of their respective material
obligations under this Agreement theretofore to be performed.
(c) Officer's Certificate. The Company shall have
received at the Effective Time a certificate dated the Effective Time and
executed by the President or a Vice President of each of Parent and
Merger Sub certifying to the fulfillment of the conditions specified in
Sections 8.3(a) and (b) hereof.
ARTICLE IX
TERMINATION
9.1 Termination by Mutual Consent. This Agreement may
be terminated and the Merger may be abandoned at any time prior to the
Effective Time, before or after the approval of stockholders of the
Company, by the mutual written consent of all of the parties (with the
concurrence of the Special Committee).
9.2 Termination by Parent, Merger Sub or the Company.
This Agreement may be terminated and the Merger may be abandoned by any
of the Parent, Merger Sub or the Company (with the concurrence of the
Special Committee in the case of termination by the Company), before or
after the approval by stockholders of the Company, if (a) any court of
competent jurisdiction in the United States or some other governmental
body or regulatory authority shall have issued an order, decree or ruling
or taken any other action permanently restraining, enjoining or otherwise
prohibiting the Merger and such order, decree, ruling or other action
shall have become final and nonappealable, (b) the Merger shall not have
been consummated by June 30, 1998, provided that the right to terminate
this Agreement pursuant to this Section 9.2(b) shall not be available to
any party whose failure to fulfill any of its obligations under this
Agreement results in the failure of the Merger to occur on or before such
date, or (c) this Agreement and the Merger shall have been voted on by
stockholders of the Company at the Stockholder Meeting and the vote shall
not have been sufficient to satisfy the condition set forth in Section
8.1(a).
9.3 Termination by Parent or Merger Sub. This
Agreement may be terminated by Parent or Merger Sub and the Merger may be
abandoned prior to the Effective Time, before or after the approval by
stockholders of the Company, if the Company shall have failed to perform
in any material respect any of its material obligations under this
Agreement theretofore to be performed by the Company, which failure to
perform has not been cured within 30 days following receipt by the
Company of notice of such failure to perform from Parent or Merger Sub.
9.4 Termination by the Company. This Agreement may be
terminated by the Company with the concurrence of the Special Committee
and the Merger may be abandoned prior to the Effective Time, before or
after the approval by stockholders of the Company, if Merger Sub or
Parent shall have failed to perform in any material respect any of their
material obligations under this Agreement theretofore to be performed by
Parent or Merger Sub, which failure to perform has not been cured within
30 days following receipt by Parent of notice of such failure to perform
from the Company.
9.5 Effect of Termination. In the event of the
termination and abandonment of this Agreement pursuant to Article IX,
this Agreement shall forthwith become void and have no effect, without
any liability on the part of any party hereto or its affiliates,
directors, officers or stockholders, other than the provisions of this
Section 9.5 and the provisions of Sections 7.5, 7.6, 10.1 and 10.2 and
the last sentence of Section 7.4. Nothing contained in this Section 9.5
shall relieve any party from liability for any breach of this Agreement.
ARTICLE X
MISCELLANEOUS AND GENERAL
10.1 Payment of Expenses. Whether or not the Merger
shall be consummated, each party hereto shall pay its own expenses
incident to preparing for, entering into and carrying out this Agreement
and the consummation of the transactions contemplated hereby and shall
pay one half of the printing and mailing expenses related to any proxy
statement prepared in connection with the transactions contemplated by
this Agreement.
10.2 Survival of Representations and Warranties. The
representations and warranties made herein shall not survive beyond the
earlier of termination of this Agreement or the Effective Time. This
Section 10.2 shall not limit any covenant or agreement of the parties
hereto which by its terms contemplates performance after the Effective
Time.
10.3 Modification or Amendment. Subject to the
applicable provisions of the DGCL, at any time prior to the Effective
Time, the parties hereto may modify or amend this Agreement, by written
agreement executed and delivered by duly authorized officers of the
respective parties; provided, however, that after approval of this
Agreement by the stockholders of the Company no amendment shall be made
which by law requires further approval by such stockholders without such
further approval. Notwithstanding the foregoing, any amendment or
modification of this Agreement shall require the consent of the Special
Committee.
10.4 Waiver of Conditions. The conditions to each of
the parties' obligations to consummate the Merger are for the sole
benefit of such party and may be waived by such party in whole or in part
to the extent permitted by applicable law; provided, however, that the
waiver of any conditions by the Company shall require the consent of the
Special Committee.
10.5 Counterparts. This Agreement may be executed in
any number of counterparts, each such counterpart being deemed to be an
original instrument, and all such counterparts shall together constitute
the same agreement.
10.6 Governing Law. This Agreement shall be governed
by and construed in accordance with the laws of the State of Delaware,
without giving effect to the principles of conflicts of law thereof.
10.7 Notices. Any notice, request, instruction or
other document to be given hereunder by any party to the other parties
shall be in writing and delivered personally or sent by registered or
certified mail, postage prepaid, or by facsimile transmission (with a
confirming copy sent by overnight courier), as follows:
(a) If to the Company, to:
John M. Kehoe, Jr.
President and Chief Executive
Officer
Wheelabrator Technologies Inc.
4 Liberty Lane West
Hampton, New Hampshire 03842
(603) 929-3000 (telephone)
(603) 929-3139_(telecopier)
with copies to:
Paul Meister
Chairperson of the Special
Committee of the Board of Directors
of Wheelabrator Technologies Inc.
and
Ralph Arditi, Esq.
Debevoise & Plimpton
875 Third Avenue
New York, New York 10022
(212) 909-6000 (telephone)
(212) 909-6836 (telecopier)
(b) If to Parent or Merger Sub, to:
Herbert A. Getz
Secretary
Waste Management, Inc.
3003 Butterfield Road
Oak Brook, Illinois 60523
(708) 572-8840 (telephone)
(708) 218-1553 (telecopier)
with a copy to:
Charles W. Mulaney, Jr., Esq.
Skadden, Arps, Slate,
Meagher & Flom (Illinois)
333 West Wacker Drive
Chicago, Illinois 60606
(312) 407-0700 (telephone)
(312) 407-0411 (telecopier)
or to such other persons or addresses as may be designated in writing by
the party to receive such notice.
10.8 Entire Agreement; Assignment. This Agreement (a)
constitutes the entire agreement among the parties with respect to the
subject matter hereof and supersedes all other prior agreements and
understandings, both written and oral, among the parties or any of them
with respect to the subject matter hereof and (b) shall not be assigned
by operation of law or otherwise.
10.9 Parties in Interest. This Agreement shall be
binding upon and inure solely to the benefit of the parties hereto and
their respective successors and assigns. Nothing in this Agreement,
express or implied, other than the right of stockholders of the Company
to receive the consideration payable in the Merger pursuant to Article IV
hereof is intended to or shall confer upon any other person any rights,
benefits or remedies of any nature whatsoever under or by reason of this
Agreement; provided, however, that the provisions of Section 7.6 shall
inure to the benefit of and be enforceable by the present directors and
officers of the Company.
10.10 Certain Definitions. As used herein:
(a) "Significant Subsidiary" shall have the meaning
ascribed to it under Rule 1-02 of Regulation S-X of the SEC.
(b) "subsidiary" shall mean, except as otherwise
noted, when used with reference to any entity, any corporation a majority
of the outstanding voting securities of which are owned directly or
indirectly by such former entity.
(c) "Material Adverse Effect" with respect to the
Company shall mean any adverse change (other than any change resulting
from or arising out of the transactions contemplated by this Agreement or
the announcement thereof) in the financial condition, business or
properties of the Company and its subsidiaries (to the extent owned by
the Company) which is material to the Company and its subsidiaries (to
the extent owned by the Company) taken as a whole. "Material Adverse
Effect" with respect to Parent shall mean any adverse change in the
financial condition, business or properties of Parent and its
subsidiaries (to the extent owned by Parent) which is material to the
ability of Parent and Merger Sub to fulfill their obligations under this
Agreement.
(d) "Public Shares" shall mean outstanding Shares
which are present in person or represented by proxy at the Stockholder
Meeting and entitled to vote thereat, excluding Shares owned by Parent
and its affiliates.
(e) "Knowledge" and the phrase "to the knowledge of"
or any similar phrase shall mean such facts and other information which
as of the date hereof actually are known to any executive officer of the
referenced party, including, without limitation, any president, chief
executive officer, chief financial officer, general counsel, secretary,
chief compliance officer, vice president-finance, treasurer, deputy
general counsel or controller of the referenced party.
10.11 Obligation of Parent. Whenever this Agreement
requires Merger Sub to take any action, such requirement shall be deemed
to include an undertaking on the part of Parent to use its best efforts
to cause Merger Sub to take such action.
10.12 Validity. The invalidity or unenforceability of
any provision of this Agreement shall not affect the validity or
enforceability of any other provisions of this Agreement, each of which
shall remain in full force and effect.
10.13 Captions. The Article, Section and paragraph
captions herein are for convenience of reference only, do not constitute
part of this Agreement and shall not be deemed to limit or otherwise
affect any of the provisions hereof.
IN WITNESS WHEREOF, the parties hereto have caused
this Agreement to be executed by their respective duly authorized
officers as of the date first above written.
WHEELABRATOR TECHNOLOGIES INC.
By:____________________________
Name:
Title:
WASTE MANAGEMENT, INC.
By:_____________________________
Name:
Title:
WMI MERGER SUB, INC.
By:_____________________________
Name:
Title:
