<PAGE>
===============================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
_______________________
SCHEDULE 14D-1
AND
SCHEDULE 13D
TENDER OFFER STATEMENT PURSUANT TO SECTION
14(D)(1) OF THE SECURITIES EXCHANGE ACT OF 1934
RESOURCE RECYCLING TECHNOLOGIES, INC.
(NAME OF SUBJECT COMPANY)
WMI ACQUISITION SUB, INC.
WASTE MANAGEMENT, INC.
(BIDDERS)
COMMON STOCK, $1.00 PAR VALUE
(TITLE OF CLASS OF SECURITIES)
760930 10 7
(CUSIP NUMBER OF CLASS OF SECURITIES)
HERBERT A. GETZ, SECRETARY
WMX TECHNOLOGIES, INC.
3003 BUTTERFIELD ROAD
OAK BROOK, ILLINOIS 60521
(708) 572-8840
(NAME, ADDRESS AND TELEPHONE NUMBER OF PERSON AUTHORIZED TO RECEIVE NOTICES AND
COMMUNICATIONS ON BEHALF OF BIDDERS)
____________________
COPIES TO:
JOHN H. BITNER
BELL, BOYD & LLOYD
THREE FIRST NATIONAL PLAZA, SUITE 3300
CHICAGO, ILLINOIS 60602
TELEPHONE: (312) 807-4306
CALCULATION OF FILING FEE
<TABLE>
<CAPTION>
================================================================================
TRANSACTION VALUATION* AMOUNT OF FILING FEE
<S> <C>
- --------------------------------------------------------------------------------
$37,436,180.00 $7,487.24
================================================================================
</TABLE>
* For purposes of calculating fee only. The amount assumes the purchase of
3,255,320 shares of Common Stock at $11.50 per share. The amount of the filing
fee calculated in accordance with Regulation 204.0-11 of the Securities Exchange
Act of 1934, as amended, equals 1/50 of one percentum of the value of the shares
to be purchased.
[_] Check box if any part of the fee is offset as provided by Rule 0-11(a)(2)
and identify the filing with which the offsetting fee was previously paid.
Identify the previous filing by registration statement number, or the Form
or Schedule and the date of its filing.
Amount Previously Paid: NOT APPLICABLE Filing Party: NOT APPLICABLE
Form or Registration No.: NOT APPLICABLE Date Filed: NOT APPLICABLE
===============================================================================
<PAGE>
- ------------------------------------------------------------------------------
1) NAME OF REPORTING PERSON
S.S. or I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
WMI Acquisition Sub, Inc.
I.R.S. Identification No. Applied for
______________________________________________________________________________
2) CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (See Instructions)
[_] (a)
[_] (b)
______________________________________________________________________________
3) SEC USE ONLY
______________________________________________________________________________
4) SOURCES OF FUNDS (See Instructions)
AF
______________________________________________________________________________
5) [_] CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS
IS REQUIRED PURSUANT TO ITEMS 2(e) OR 2(f)
______________________________________________________________________________
6) CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
______________________________________________________________________________
7) AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH
REPORTING PERSON
0 Shares
______________________________________________________________________________
8) [_] CHECK IF THE AGGREGATE AMOUNT IN ROW 7 EXCLUDES
CERTAIN SHARES (See Instructions)
______________________________________________________________________________
9) PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW 7
0%
______________________________________________________________________________
10) TYPE OF REPORTING PERSON
CO
______________________________________________________________________________
-2-
<PAGE>
______________________________________________________________________________
1) NAME OF REPORTING PERSON
S.S. or I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Waste Management, Inc.
36-3135921
______________________________________________________________________________
2) CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (See Instructions)
[_] (a)
[_] (b)
______________________________________________________________________________
3) SEC USE ONLY
______________________________________________________________________________
4) SOURCES OF FUNDS (See Instructions)
WC, AF
______________________________________________________________________________
5) [_] CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS
IS REQUIRED PURSUANT TO ITEMS 2(e) OR 2(f)
______________________________________________________________________________
6) CITIZENSHIP OR PLACE OF ORGANIZATION
Illinois
______________________________________________________________________________
7) AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH
REPORTING PERSON
0 Shares
______________________________________________________________________________
8) [_] CHECK IF THE AGGREGATE AMOUNT IN ROW 7 EXCLUDES
CERTAIN SHARES (See Instructions)
______________________________________________________________________________
9) PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW 7
0 %
______________________________________________________________________________
10) TYPE OF REPORTING PERSON
CO
______________________________________________________________________________
-3-
<PAGE>
______________________________________________________________________________
1) NAME OF REPORTING PERSON
S.S. or I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
WMX TECHNOLOGIES, Inc.
36-2660763
______________________________________________________________________________
2) CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (See Instructions)
[_] (a)
[_] (b)
______________________________________________________________________________
3) SEC USE ONLY
______________________________________________________________________________
4) SOURCES OF FUNDS (See Instructions)
WC
______________________________________________________________________________
5) [_] CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS
IS REQUIRED PURSUANT TO ITEMS 2(e) OR 2(f)
______________________________________________________________________________
6) CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
______________________________________________________________________________
7) AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH
REPORTING PERSON
0 Shares
______________________________________________________________________________
8) [_] CHECK IF THE AGGREGATE AMOUNT IN ROW 7 EXCLUDES
CERTAIN SHARES (See Instructions)
______________________________________________________________________________
9) PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW 7
0 %
______________________________________________________________________________
10) TYPE OF REPORTING PERSON
CO
______________________________________________________________________________
-4-
<PAGE>
This Tender Offer Statement on Schedule 14D-1 (the "Schedule 14D-1")
relates to the offer by WMI Acquisition Sub, Inc., a Delaware corporation (the
"Purchaser") and a wholly owned subsidiary of Waste Management, Inc., an
Illinois corporation (the "Parent"), to purchase all of the outstanding shares
of common stock, par value $1.00 per share (the "Shares"), of Resource Recycling
Technologies, Inc., a Delaware corporation (the "Company"), at $11.50 per Share,
net to the seller in cash, upon the terms and subject to the conditions set
forth in the Offer to Purchase dated March 23, 1995 (the "Offer to Purchase")
and in the related Letter of Transmittal (which together constitute the
"Offer"). The item numbers and responses thereto below are in accordance with
the requirements of Schedule 14D-1.
Item 1. -- Security and Subject Company.
- ---------------------------------------
(a). The name of the subject company is Resource Recycling
Technologies, Inc., a Delaware corporation with principal executive offices
located at 300 Plaza Drive, Vestal, New York 13850.
(b). The information set forth in the Introduction of the Offer to
Purchase is incorporated herein by reference.
(c). The information set forth in Section 6 - "Price Range of the
Shares; Dividends" of the Offer to Purchase is incorporated herein by reference.
Item 2. -- Identity and Background.
- ----------------------------------
(a)-(d) and (g). This Statement is being filed by the Purchaser and
the Parent. The information set forth in the Introduction, in Section 9 -
"Certain Information Concerning the Purchaser and the Parent" and in Schedule I
of the Offer to Purchase is incorporated herein by reference.
(e) and (f). None of the Purchaser, the Parent, or WMX Technologies,
Inc. ("WMX") or, to the best of their knowledge, any of the persons listed in
Schedule I of the Offer to Purchase (1) has been convicted in a criminal
proceeding (excluding traffic violations or similar misdemeanors) or (2) was 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.
Item 3. -- Past Contacts, Transactions or Negotiations with the Subject Company.
- -------------------------------------------------------------------------------
(a) and (b). The information set forth in the Introduction, in Section
9 - "Certain Information Concerning the Purchaser and the Parent," in Section 10
- - "Background of the Offer; Contacts with the Company; Certain Employment
Arrangements" and in Section 11 - "Purpose of the Offer; Plans or Proposals of
the Purchaser; the Merger Agreement; the Stock Tender Agreements" of the Offer
to Purchase is incorporated herein by reference.
-5-
<PAGE>
Item 4. -- Source and Amount of Funds or other Consideration.
- ------------------------------------------------------------
(a) and (b). The information set forth in Section 12 - "Source and
Amount of Funds" of the Offer to Purchase is incorporated herein by reference.
(c). Not applicable.
Item 5. -- Purpose of the Tender Offer and Plans or Proposals of the Bidder.
- ---------------------------------------------------------------------------
(a)-(g) The information set forth in the Introduction, Section 7 -
"Effect of the Offer on the Market for the Shares; AMEX Listing; and Exchange
Act Registration" and in Section 11 - "Purpose of the Offer; Plans or Proposals
of the Purchaser; the Merger Agreement; the Stock Tender Agreements" of the
Offer to Purchase is incorporated herein by reference.
Item 6. -- Interest in Securities of the Subject Company.
- --------------------------------------------------------
(a) and (b). The information set forth in the Introduction, in Section
9 - "Certain Information Concerning the Purchaser and the Parent" and in Section
11 - "Purpose of the Offer; Plans or Proposals of the Purchaser; the Merger
Agreement; the Stock Tender Agreements" of the Offer to Purchase is incorporated
herein by reference.
Item 7. -- Contracts, Arrangements, Understandings or Relationships With Respect
to the Subject Company's Securities.
The information set forth in the Introduction, in Section 9 - "Certain
Information Concerning the Purchaser and the Parent," in Section 10 -
"Background of the Offer; Contacts with the Company; Certain Employment
Arrangements," in Section 11 - "Purpose of the Offer; Plans or Proposals of the
Purchaser; the Merger Agreement; the Stock Tender Agreements" and Section 15 -
"Fees and Expenses" of the Offer to Purchase is incorporated herein by
reference.
Item 8. -- Persons Retained, Employed or to be Compensated.
- ----------------------------------------------------------
The information set forth in the Introduction, in Section 15 - "Fees
and Expenses" and in Section 16 - "Miscellaneous" of the Offer to Purchase is
incorporated herein by reference.
Item 9. -- Financial Statements of Certain Bidders.
- --------------------------------------------------
The information set forth in Section 9 - "Certain Information
Concerning the Purchaser and the Parent" of the Offer to Purchase, including the
financial statements and related notes thereto incorporated by reference in
Section 9, is incorporated herein by reference.
The incorporation by reference herein of the above-referenced
financial information does not constitute an admission that such information is
material to a decision by a stockholder of the Company whether to sell, tender
or hold Shares being sought in the Offer.
-6-
<PAGE>
Item 10. -- Additional Information.
- ----------------------------------
(a). The information set forth in the Introduction, in Section 9 -
"Certain Information Concerning the Purchaser and Parent," in Section 10 -
"Background of the Offer; Contacts with the Company; Certain Employment
Arrangements" and in Section 11 - "Purpose of the Offer; Plans or Proposals of
the Purchaser; the Merger Agreement; the Stock Tender Agreements" of the Offer
to Purchase is incorporated herein by reference.
(b) and (c). The information set forth in Section 11 - "Purpose of the
Offer; Plans or Proposals of the Purchaser; the Merger Agreement; the Stock
Tender Agreements" and in Section 14 - "Certain Legal Matters" of the Offer to
Purchase is incorporated herein by reference.
(d). The information set forth in Section 7 - "Effect of the Offer on
the Market for the Shares; AMEX Listing; and Exchange Act Registration" of the
Offer to Purchase is incorporated herein by reference.
(e). Not Applicable.
(f). The information set forth in the Offer to Purchase and the
related Letter of Transmittal, copies of which are attached hereto as Exhibits
(a)(1) and (a)(2), respectively, is incorporated herein by reference in its
entirety.
Item 11. -- Material to be Filed as Exhibits.
- --------------------------------------------
(a)(1). Offer to Purchase, dated March 23, 1995.
(a)(2). Letter of Transmittal.
(a)(3). Notice of Guaranteed Delivery.
(a)(4). Letter to Brokers, Dealers, Commercial Banks, Trust Companies and
Other Nominees.
(a)(5). Letter to Clients for use by Brokers, Dealers, Commercial Banks, Trust
Companies and Other Nominees.
(a)(6). Guidelines for Certification of Taxpayer Identification Number on
Substitute Form W-9.
(a)(7). Form of Summary Advertisement, dated March 23, 1995.
(a)(8). Press Release, issued March 17, 1995.
(a)(9). Form of Press Release, to be issued March 23, 1995.
-7-
<PAGE>
(b). None.
(c)(1). Agreement and Plan of Merger dated March 17, 1995, by and among the
Company, the Parent, and the Purchaser.
(c)(2). Stock Tender Agreement dated March 17, 1995, by and among the
Purchaser, the Parent, and Allen & Company Incorporated.
(c)(3). Stock Tender Agreement dated March 17, 1995, by and among the
Purchaser, the Parent, and Andrew T. Dwyer.
(c)(4). Stock Tender Agreement dated March 17, 1995, by and among the
Purchaser, the Parent, and Paul A. Gould.
(d). None.
(e). Not applicable.
(f). None.
-8-
<PAGE>
Signatures
----------
After reasonable inquiry and to the best of their knowledge and
belief, each of the undersigned corporations certifies that the information set
forth in this statement is true, complete and correct.
Dated: March 23, 1995
WMI ACQUISITION SUB, INC.
/s/ T. Michael O'Brien, Jr.
By_____________________________________
Name: T. Michael O'Brien, Jr.
Title: Secretary
WASTE MANAGEMENT, INC.
/s/ T. Michael O'Brien, Jr.
By_____________________________________
Name: T. Michael O'Brien, Jr.
Title: Secretary
WMX TECHNOLOGIES, INC.
/s/ Herbert A. Getz
By_____________________________________
Name: Herbert A. Getz
Title: Secretary
-9-
<PAGE>
EXHIBIT INDEX
EXHIBIT PAGE
NUMBER EXHIBIT NAME NUMBER
- ------ ------------ ------
(a)(1). Offer to Purchase, dated March 23, 1995.
(a)(2). Letter of Transmittal.
(a)(3). Notice of Guaranteed Delivery.
(a)(4). Letter to Brokers, Dealers, Commercial Banks, Trust
Companies, and Other Nominees.
(a)(5). Letter to Clients for use by Brokers, Dealers, Commercial
Banks, Trust Companies, and Other Nominees.
(a)(6). Guidelines for Certification of Taxpayer Identification
Number on Substitute Form W-9.
(a)(7). Form of Summary Advertisement, dated March 23, 1995.
(a)(8). Press Release, issued March 17, 1995.
(a)(9). Form of Press Release, to be issued March 23, 1995.
(b). None
(c)(1). Agreement and Plan of Merger dated March 17, 1995, by and among
the Company, the Parent, and the Purchaser.
(c)(2). Stock Tender Agreement dated March 17, 1995, by and among
the Purchaser, the Parent, and Allen & Company Incorporated.
(c)(3). Stock Tender Agreement dated March 17, 1995, by and among
the Purchaser, the Parent, and Andrew T. Dwyer.
(c)(4). Stock Tender Agreement dated March 17, 1995, by and among
the Purchaser, the Parent, and Paul A. Gould.
(d). None.
(e). Not applicable.
(f). None.
-10-
<PAGE>
EXHIBIT (a)(1)
OFFER TO PURCHASE FOR CASH
ALL OUTSTANDING SHARES OF COMMON STOCK
OF
RESOURCE RECYCLING
TECHNOLOGIES, INC.
BY
WMI ACQUISITION SUB, INC.
A WHOLLY OWNED SUBSIDIARY OF
WASTE MANAGEMENT, INC.
AT
$11.50 NET PER SHARE
- ----------------------------------------------------------------------------
THE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 12:00 MIDNIGHT, NEW YORK CITY
TIME, ON WEDNESDAY, APRIL 19, 1995, UNLESS EXTENDED.
- ----------------------------------------------------------------------------
THE OFFER IS CONDITIONED UPON, AMONG OTHER THINGS, THERE BEING VALIDLY
TENDERED AND NOT WITHDRAWN PRIOR TO THE EXPIRATION OF THE OFFER THAT NUMBER OF
SHARES REPRESENTING 50.1% OR MORE OF THE TOTAL NUMBER OF SHARES THAT WOULD BE
OUTSTANDING IF ALL OUTSTANDING RIGHTS TO ACQUIRE SHARES WERE EXERCISED. SEE
SECTION 13.
THE BOARD OF DIRECTORS OF RESOURCE RECYCLING TECHNOLOGIES, INC. HAS
UNANIMOUSLY APPROVED THE OFFER, HAS DETERMINED THAT THE TERMS OF THE OFFER AND
THE MERGER REFERRED TO HEREIN ARE FAIR TO AND IN THE BEST INTERESTS OF THE
COMPANY'S STOCKHOLDERS AND RECOMMENDS THAT THE COMPANY'S STOCKHOLDERS ACCEPT THE
OFFER.
_______________________________
IMPORTANT
Any holder of Shares desiring to tender all or any portion of Shares owned by
the holder should either (i) complete and sign the Letter of Transmittal or a
facsimile copy thereof in accordance with the instructions in the Letter of
Transmittal, mail or deliver it and any other required documents to the
Depositary, and either deliver the certificates for such Shares to the
Depositary along with the Letter of Transmittal or deliver such Shares pursuant
to the procedure for book-entry transfer set forth in Section 3 or (ii) request
the holder's broker, dealer, commercial bank, trust company or other nominee to
effect the transaction for the holder. A stockholder having Shares registered
in the name of a broker, dealer, commercial bank, trust company or other nominee
must contact such broker, dealer, commercial bank, trust company or other
nominee if such stockholder desires to tender such Shares. A stockholder who
desires to tender Shares and whose certificates for such Shares are not
immediately available or who cannot comply in a timely manner with the procedure
for book-entry transfer may tender such Shares by following the procedures for
guaranteed delivery set forth in Section 3.
Questions and requests for assistance or for additional copies of this Offer
to Purchase, the Letter of Transmittal and the Notice of Guaranteed Delivery may
be directed to the Information Agent at its addresses and telephone numbers set
forth on the back cover of this Offer to Purchase.
__________________________
The Information Agent for the Offer is:
MORROW & CO., INC.
March 23, 1995
<PAGE>
TABLE OF CONTENTS
Page
----
INTRODUCTION............................................................... 1
THE OFFER.................................................................. 2
1. TERMS OF THE OFFER................................................. 2
2. ACCEPTANCE FOR PAYMENT AND PAYMENT FOR SHARES...................... 3
3. PROCEDURE FOR TENDERING SHARES..................................... 4
4. WITHDRAWAL RIGHTS.................................................. 7
5. CERTAIN TAX CONSEQUENCES TO STOCKHOLDERS........................... 7
6. PRICE RANGE OF THE SHARES; DIVIDENDS............................... 8
7. EFFECT OF THE OFFER ON THE MARKET FOR THE SHARES; AMEX LISTING;
EXCHANGE ACT REGISTRATION........................................ 9
8. CERTAIN INFORMATION CONCERNING THE COMPANY......................... 10
9. CERTAIN INFORMATION CONCERNING THE PURCHASER AND THE PARENT........ 12
10. BACKGROUND OF THE OFFER; CONTACTS WITH THE COMPANY;
CERTAIN EMPLOYMENT ARRANGEMENTS.................................. 15
11. PURPOSE OF THE OFFER; PLANS OR PROPOSALS OF THE PURCHASER;
THE MERGER AGREEMENT; THE STOCK TENDER AGREEMENTS................ 16
12. SOURCE AND AMOUNT OF FUNDS......................................... 22
13. CERTAIN CONDITIONS OF THE OFFER.................................... 22
14. CERTAIN LEGAL MATTERS.............................................. 23
15. FEES AND EXPENSES.................................................. 24
16. MISCELLANEOUS...................................................... 24
Schedule I -- Directors and Executive Officers of WMI Acquisition Sub, Inc.,
Waste Management, Inc. and WMX Technologies, Inc.
<PAGE>
To All Holders of Common Stock of
Resource Recycling Technologies, Inc.:
INTRODUCTION
WMI Acquisition Sub, Inc., a Delaware corporation (the "Purchaser") and a
wholly-owned subsidiary of Waste Management, Inc., an Illinois corporation (the
"Parent"), hereby offers to purchase all outstanding shares of Common Stock, par
value $1.00 (the "Shares"), of Resource Recycling Technologies, Inc., a Delaware
corporation (the "Company"), at $11.50 per Share, net to the seller in cash,
upon the terms and subject to the conditions set forth in this Offer to Purchase
and in the related Letter of Transmittal (which together constitute the
"Offer"). Tendering stockholders will not be obligated to pay brokerage fees or
commissions or, except as set forth in Instruction 7 of the Letter of
Transmittal, transfer taxes on the purchase of Shares pursuant to the Offer.
The Purchaser will pay all charges and expenses of Harris Trust Company of New
York (the "Depositary") and Morrow & Co., Inc. (the "Information Agent")
incurred in connection with the Offer.
The Offer is being made pursuant to an Agreement and Plan of Merger dated
March 17, 1995 among the Purchaser, the Parent and the Company (the "Merger
Agreement"), pursuant to which, as soon as practicable following the completion
of the Offer and subject to certain conditions, the Purchaser will be merged
with and into the Company (the "Merger"). The Merger Agreement provides that the
Offer will be the first step in the Parent 's proposed acquisition of the entire
equity interest in the Company. In the Merger, the Company will continue as the
surviving corporation and each Share outstanding as of the effective time of the
Merger (except those Shares that are owned by the Company as treasury shares or
are owned by the Purchaser, the Parent, their corporate affiliates, or by
stockholders who have perfected appraisal rights) will be converted into the
right to receive the highest price per Share paid in the Offer in cash, without
interest (the "Merger Consideration"). See Section 11.
THE BOARD OF DIRECTORS OF THE COMPANY HAS UNANIMOUSLY APPROVED THE OFFER, HAS
DETERMINED THAT THE TERMS OF THE OFFER AND THE MERGER ARE FAIR TO AND IN THE
BEST INTERESTS OF THE COMPANY'S STOCKHOLDERS AND RECOMMENDS THAT THE COMPANY'S
STOCKHOLDERS ACCEPT THE OFFER.
Each of Allen & Company Incorporated and Gilford Securities Incorporated has
delivered to the Board of Directors of the Company its written opinion that,
based on certain considerations and assumptions, the $11.50 per Share price is
fair from a financial point of view to the stockholders of the Company. Such
opinions are set forth in full as exhibits to the Company's
Solicitation/Recommendation Statement on Schedule 14D-9 (the "Schedule 14D-9"),
which is being mailed to the Company's stockholders together with this Offer to
Purchase.
THE OFFER IS CONDITIONED UPON, AMONG OTHER THINGS, THERE BEING VALIDLY
TENDERED AND NOT WITHDRAWN PRIOR TO THE EXPIRATION OF THE OFFER THAT NUMBER OF
SHARES REPRESENTING 50.1% OR MORE OF THE TOTAL NUMBER OF SHARES THAT WOULD BE
OUTSTANDING IF ALL OUTSTANDING RIGHTS TO ACQUIRE SHARES WERE EXERCISED (THE
"MINIMUM CONDITION"). THE OFFER IS ALSO SUBJECT TO OTHER CONDITIONS. SEE
SECTION 13.
The Company has informed the Purchaser that, as of March 17, 1995, there were
2,675,773 Shares issued and outstanding, 573,863 Shares issuable upon exercise
of various outstanding options and warrants to purchase Shares and 6,509 Shares
issuable upon conversion of outstanding convertible preferred stock. See
Section 11.
Consummation of the Merger is subject to the satisfaction or waiver of a
number of conditions, including approval by the stockholders of the Company if
required by law. Under Delaware law, the affirmative vote of the holders of a
majority of the outstanding Shares is required to approve the Merger. The
Purchaser will be entitled to vote all Shares owned by it in any stockholder
vote. Consequently, if the Purchaser acquires or controls the vote of, whether
pursuant to the Offer or otherwise, more than 50% of the total Shares
outstanding on the record date for such vote, the Purchaser will have sufficient
voting power to approve the Merger without the vote of any other stockholder of
the Company. If the Purchaser holds at least 90% of the Shares issued and
outstanding on the record date for the vote on the Merger, the Purchaser will be
permitted to effect, and intends to effect, the Merger without the approval of
any other stockholder of the Company. Holders of approximately 33% of the
outstanding Shares
<PAGE>
(on a fully diluted basis) have agreed to tender the Shares beneficially owned
by them pursuant to the Offer. See Section 11. Holders of Shares who do not
vote for the Merger will have the right to exercise appraisal rights in
accordance with the Delaware General Corporation Law (the "DGCL"). See Section
11.
The Company has informed the Purchaser that on March 13, 1995 there were
approximately 408 record holders of Shares.
THIS OFFER TO PURCHASE AND THE RELATED LETTER OF TRANSMITTAL CONTAIN IMPORTANT
INFORMATION WHICH SHOULD BE READ BEFORE ANY DECISION IS MADE WITH RESPECT TO THE
OFFER.
THE OFFER
1. TERMS OF THE OFFER. Upon the terms and subject to the conditions set forth
in the Offer, the Purchaser will accept for payment and pay for all outstanding
Shares validly tendered prior to the Expiration Date and not theretofore
withdrawn in accordance with the procedures set forth in Section 4. The term
"Expiration Date" means 12:00 Midnight, New York City time, on Wednesday, April
19, 1995, unless and until the Purchaser shall have extended the period of time
for which the Offer is open, in which event the term "Expiration Date" will mean
the latest time and date at which the Offer, as so extended by the Purchaser,
shall expire.
The Purchaser expressly reserves the right, at any time or from time to time,
in its sole discretion, to extend the period during which the Offer is open
(except that the Company's consent is required other than for an extension (i)
not to exceed 20 business days, if at any scheduled Expiration Date, any of the
conditions to Purchaser's obligations to accept for payment, and pay for, Shares
shall not have been satisfied or waived, (ii) for any period required by any
rule, regulation, interpretation or position of the Securities and Exchange
Commission (the "SEC") or the staff thereof applicable to the Offer, or (iii) of
not more than 15 business days beyond the latest expiration date that would be
permitted by the preceding clause (i) or (ii) if there shall not have been
tendered sufficient Shares so that the Merger could be effected as described
above in the fifth sentence of the seventh paragraph under "Introduction"), by
giving oral or written notice of such extension to the Depositary and by making
a public announcement of such extension in a manner reasonably designed to
inform the holders of Shares thereof. If (i) the Purchaser decides, in its sole
discretion, to increase the consideration offered in the Offer to holders of
Shares or to waive any material condition to the Offer or, subject to the
approval of the Company, to decrease or change the form of the consideration
offered to such holders or to make, subject to the terms of the Merger
Agreement, any other change in the terms or conditions of the Offer (except to
waive any existing condition other than the Minimum Condition) in a manner
adverse to the holders of Shares and (ii) at the time that notice of such
increase, decrease, waiver or change is first published, sent or given to
holders of Shares in the manner specified below, the Offer is scheduled to
expire at any time earlier than the expiration of a period ending on the tenth
business day from, and including, the date that such notice is first so
published, sent or given, then the Offer will be extended until the expiration
of such period of ten business days. As used herein, the term "business day"
means any day other than a Saturday, Sunday or federal holiday, and consists of
the time period from 12:01 a.m. through 12:00 midnight, New York City time.
The Merger Agreement provides that neither the Parent nor the Purchaser will,
without the prior written consent of the Company, decrease or change the form of
the consideration payable in the Offer or decrease the number of Shares sought
pursuant thereto, change the terms or conditions of the Offer (except to waive
any existing conditions other than the Minimum Condition) in a manner adverse to
the holders of Shares or impose any additional conditions to the Offer. See
Section 13. The Company has agreed that no Shares held by the Company will be
tendered pursuant to the Offer.
The Offer is conditioned upon, among other things, the satisfaction of the
Minimum Condition and the expiration or termination of the waiting period
applicable to the Purchaser's acquisition of Shares pursuant to the Offer under
the Hart-Scott-Rodino Antitrust Improvements Act of 1976 and the rules and
regulations thereunder (collectively, the "HSR Act"). See Section 13, which
describes additional conditions to the Offer. If, by the Expiration Date, any
or all of such conditions have not been satisfied, the Purchaser reserves the
right, in its sole
2
<PAGE>
discretion (i) to decline to accept for payment or pay for any of the Shares
tendered, terminate the Offer and return all tendered Shares to tendering
stockholders, (ii) to extend the Offer and, subject to the withdrawal rights
described in Section 4, retain the Shares that have been tendered until the
expiration of the Offer as extended or (iii) to waive such unsatisfied condition
or conditions (other than the Minimum Condition, which requires the Company's
consent) and, in accordance with applicable law and subject to any requirement
to extend the period of time during which the Offer is open, accept for payment
and pay for all Shares validly tendered by the Expiration Date and not properly
withdrawn.
Any extension, delay in acceptance for payment or payment, termination or
amendment will be followed as promptly as practicable by public announcement
thereof, such announcement, in the case of an extension, to be issued no later
than 9:00 a.m., New York City time, on the next business day after the
previously scheduled Expiration Date. The Purchaser will disseminate public
announcements concerning material changes to the Offer in accordance with
applicable law. The manner in which the Purchaser will make any such public
announcement may, if appropriate, be limited to a release to the Dow Jones News
Service.
The Purchaser's right to delay payment for Shares that it has accepted for
payment is limited by Rule 14e-1(c) under the Securities Exchange Act of 1934
(the "Exchange Act"), which requires that a bidder must pay the consideration
offered or return the securities deposited by or on behalf of security holders
promptly after the termination or withdrawal of a tender offer. If the
Purchaser makes a material change in the terms of the Offer or the information
concerning the Offer, or waives a material condition of the Offer, the Purchaser
will disseminate additional tender offer materials to the extent required under
Rules 14d-4(c) and 14d-6(d) under the Exchange Act, and will extend the Offer to
the extent required by applicable law in order to permit stockholders adequate
time to consider such materials. The SEC has taken the position that the
minimum period during which a tender offer must remain open following material
changes in the terms of the offer or information concerning the offer, other
than a change in the price or in the percentage of securities sought, will
depend upon the facts and circumstances, including the relative materiality of
the terms or information, and that, with respect to a change in the price or in
the percentage of securities sought, a minimum ten business day period may be
required to allow for adequate dissemination to stockholders and investor
response.
The Company has provided the Purchaser with the Company's stockholder lists
and security position listings for the purpose of disseminating the Offer to
holders of Shares. This Offer to Purchase and the related Letter of Transmittal
will be mailed by the Purchaser to holders of record of Shares on the date
hereof, and will be furnished by the Purchaser to brokers, dealers, banks, trust
companies and similar persons whose names, or the names of whose nominees,
appear on the stockholder lists (or, if applicable, who are listed as
participants in a clearing agency's security position listing) for subsequent
transmittal to beneficial owners of Shares.
2. ACCEPTANCE FOR PAYMENT AND PAYMENT FOR SHARES. Upon the terms and subject
to the conditions of the Offer (including, if the Offer is extended or amended,
the terms and conditions of any such extension or amendment), the Purchaser will
accept for payment and thereby purchase, and will pay for, all Shares validly
tendered prior to the Expiration Date (and not withdrawn pursuant to Section 4)
as soon as practicable after the Expiration Date, which is anticipated to occur
after the latest of (i) the initial Expiration Date, (ii) the expiration or
termination of the waiting period applicable to the Purchaser's acquisition of
Shares pursuant to the Offer under the HSR Act, and (iii) the satisfaction or
waiver of all other conditions to the Offer set forth in Section 13.
In all cases, payment for Shares purchased pursuant to the Offer will be made
only after timely receipt by the Depositary of (i) certificates for such Shares
or timely confirmation (a "Book-Entry Confirmation") of the book-entry transfer
of such Shares into the Depositary's account at The Depository Trust Company,
the Midwest Securities Trust Company or the Philadelphia Depository Trust
Company (collectively, the "Book-Entry Transfer Facilities") pursuant to the
procedures set forth in Section 3, (ii) a properly completed and duly executed
Letter of Transmittal or facsimile thereof with any required signature
guarantees or an "Agent's Message" and (iii) all other documents required by the
Letter of Transmittal. The term "Agent's Message" means a message, transmitted
by a Book-Entry Transfer Facility to, and received by, the Depositary and
forming a part of a Book-Entry Confirmation, which states that such Book-Entry
Transfer Facility has received an express acknowledgment from the participant in
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such Book-Entry Transfer Facility tendering the Shares which are the subject of
such Book-Entry Confirmation that such participant has received and agrees to be
bound by the terms of the Letter of Transmittal and that the Purchaser may
enforce such agreement against such participant.
The Parent and the Company have each filed a Notification and Report Form
under the HSR Act with respect to the Offer. The waiting period with respect to
the Offer under the HSR Act will expire at 11:59 p.m., New York City time, on
April 4, 1995, unless such waiting period is earlier terminated. Prior to the
expiration of the waiting period, however, the Federal Trade Commission (the
"FTC") or the Antitrust Division of the Department of Justice (the "Antitrust
Division") may extend the waiting period by requesting additional information
from the Parent or the Company. If such a request is made, the waiting period
will expire at 11:59 p.m., New York City time, on the tenth calendar day after
the Parent or the Company, as the case may be, has substantially complied with
the request. Only one extension of the waiting period pursuant to the request
for additional information is authorized by the HSR Act, and any further request
for additional information that may be made of the Parent or the Company will
not extend the waiting period without a court order or the consent of the Parent
or the Company. For further information with respect to the HSR Act and
antitrust matters, see Section 14.
For purposes of the Offer, the Purchaser will be deemed to have accepted for
payment, and thereby purchased, tendered Shares if, as and when the Purchaser
gives oral or written notice to the Depositary of its acceptance for payment of
such Shares. Payment for Shares accepted for payment pursuant to the Offer will
be made by deposit of the purchase price therefor with the Depositary, which
will act as agent for the tendering stockholders for purposes of receiving
payments from the Purchaser and transmitting such payments to the tendering
stockholders. Under no circumstances will interest on the purchase price for
Shares be paid, regardless of any delay in making such payment.
If the Purchaser extends the Offer, is delayed in its acceptance for payment
of, or payment for, Shares or is unable to accept for payment or pay for Shares
pursuant to the Offer for any reason, then, without prejudice to the Purchaser's
rights under this Offer to Purchase, the Depositary may, nevertheless, on behalf
of the Purchaser and subject to Rule 14e-1 under the Exchange Act, retain
tendered Shares, and such Shares may not be withdrawn, except to the extent
tendering stockholders are entitled to, and duly exercise, withdrawal rights as
described in Section 4.
If any tendered Shares are not accepted for payment pursuant to the terms and
conditions of the Offer for any reason, or if certificates representing more
Shares than are tendered are submitted to the Depositary, certificates for such
unpurchased or untendered Shares will be returned, without expense to the
tendering stockholder (or, in the case of Shares tendered by book-entry transfer
of such Shares into the Depositary's account at a Book-Entry Transfer Facility
pursuant to the procedures set forth in Section 3, such Shares will be credited
to an account maintained within such Book-Entry Transfer Facility), as soon as
practicable following the expiration, termination or withdrawal of the Offer.
If, prior to the Expiration Date, the Purchaser increases the consideration
offered to stockholders for Shares pursuant to the Offer, such increased
consideration will be paid to all stockholders whose Shares are purchased
pursuant to the Offer, whether or not such Shares have been tendered prior to
such increase in consideration. The Purchaser reserves the right, in its sole
discretion, to transfer or assign to any one or more of the Parent 's direct or
indirect majority-owning or -owned parents or subsidiaries, in whole or in part
and from time to time, (i) the right to purchase Shares tendered pursuant to the
Offer, and (ii) Shares now or hereafter beneficially owned by the Purchaser.
Any transfer or assignment contemplated in this paragraph will not relieve the
Purchaser of its obligations under the Offer and will in no way prejudice the
rights of tendering stockholders to receive payment for Shares validly tendered
and accepted for payment pursuant to the Offer.
3. PROCEDURE FOR TENDERING SHARES. For a stockholder validly to tender Shares
pursuant to the Offer, a properly completed and duly executed Letter of
Transmittal (or facsimile thereof), together with any required signature
guarantees (or an Agent's Message in connection with a book-entry delivery of
Shares) and any other required documents, must be received by the Depositary at
one of its addresses set forth on the back cover of this Offer to Purchase. In
addition, (i) either certificates for such Shares must be received by the
Depositary, together
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with the Letter of Transmittal, at such address, or such Shares must be
delivered pursuant to the procedures for book-entry transfer set forth below and
a Book-Entry Confirmation received by the Depositary, in each case prior to the
Expiration Date, or (ii) the tendering stockholder must comply with the
procedures for guaranteed delivery set forth below.
Book-Entry Transfer. The Depositary will establish an account with respect to
the Shares at the Book-Entry Transfer Facilities for purposes of the Offer
within two business days after the date of this Offer to Purchase. Any
financial institution that is a participant in any of the Book-Entry Transfer
Facilities' systems may make book-entry delivery of the Shares by causing a
Book-Entry Transfer Facility to transfer such Shares into the Depositary's
account at such Book-Entry Transfer Facility in accordance with that Book-Entry
Transfer Facility's procedure for such transfer. Although delivery of Shares
may be effected through book entry transfer into the Depositary's account at a
Book-Entry Transfer Facility, a properly completed and duly executed Letter of
Transmittal or facsimile thereof, together with any required signature
guarantees (or an Agent's Message in connection with a book-entry transfer) and
any other required documents, must still be transmitted to, and received by, the
Depositary at one of its addresses set forth on the back cover of this Offer to
Purchase prior to the Expiration Date or the tendering stockholder must comply
with the procedures for guaranteed delivery set forth below. Delivery of
documents (including an executed Letter of Transmittal) to a Book-Entry Transfer
Facility in accordance with such Book-Entry Transfer Facility's procedures does
not constitute delivery to the Depositary.
THE METHOD OF DELIVERY OF SHARES AND ALL OTHER REQUIRED DOCUMENTS IS AT THE
OPTION AND RISK OF THE TENDERING STOCKHOLDER. IF DELIVERY IS BY MAIL,
REGISTERED MAIL WITH RETURN RECEIPT REQUESTED, PROPERLY INSURED, IS RECOMMENDED.
IN ALL CASES, SUFFICIENT TIME SHOULD BE ALLOWED TO ENSURE TIMELY DELIVERY.
TO PREVENT BACKUP FEDERAL INCOME TAX WITHHOLDING AT A 31% RATE ON PAYMENTS
MADE TO CERTAIN STOCKHOLDERS WITH RESPECT TO THE PURCHASE PRICE OF SHARES
PURCHASED PURSUANT TO THE OFFER, EACH HOLDER OF SHARES MUST, UNLESS AN EXEMPTION
APPLIES, PROVIDE THE DEPOSITARY WITH ITS CORRECT TAXPAYER IDENTIFICATION NUMBER
AND CERTIFY THAT SUCH HOLDER IS NOT SUBJECT TO BACKUP FEDERAL INCOME TAX
WITHHOLDING BY COMPLETING THE SUBSTITUTE FORM W-9 INCLUDED AS PART OF THE LETTER
OF TRANSMITTAL.
Signature Guarantees. Signatures on all Letters of Transmittal must be
guaranteed by a firm or other entity identified in Rule 17Ad-15 under the
Exchange Act, including (as such terms are defined therein) any (i) bank, (ii)
broker, dealer, municipal securities dealer, municipal securities broker,
government securities dealer or government securities broker, (iii) credit
union, (iv) national securities exchange, registered securities association or
clearing agency or (v) savings association (in each case, an "Eligible
Institution"), acting in accordance with the procedures set forth in such Rule,
and which is a member in good standing of the Securities Transfer Agents
Medallion Program, unless the Shares tendered thereby are tendered (a) by a
registered holder of such Shares who has not completed either the box entitled
"Special Payment Instructions" or the box entitled "Special Delivery
Instructions" on the Letter of Transmittal or (b) for the account of an Eligible
Institution. See Instruction 1 of the Letter of Transmittal. If the
certificates for Shares are registered in the name of a person other than the
signer of a Letter of Transmittal, or if payment is to be made or unpurchased or
untendered Shares are to be issued to a person other than the registered holder,
the certificates for Shares must be endorsed or accompanied by appropriate stock
powers, in either case signed exactly as the name or names of the registered
holder or holders appear on the certificates, with the signatures on the
certificates or stock powers guaranteed as provided in the Letter of
Transmittal. See Instruction 5 of the Letter of Transmittal.
Guaranteed Delivery. If a holder of Shares desires to tender Shares pursuant
to the Offer and such holder's certificates are not immediately available, or
the procedure for book-entry transfer cannot be completed on a timely basis, or
such holder cannot deliver the certificates and all required documents to the
Depositary prior to the Expiration Date, such holder's tender may nevertheless
be effected if all the following conditions are complied with:
(i) such tender is made by or through a member firm of a registered
national securities exchange, a member of the National Association of
Securities Dealers, Inc. or a commercial bank or trust company having an
office or correspondent in the United States (each, a "Guaranteeing
Institution");
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(ii) a properly completed and duly executed Notice of Guaranteed
Delivery, substantially in the form provided by the Purchaser herewith, is
received by the Depositary as provided below prior to the Expiration Date;
and
(iii) the certificates for all tendered Shares, in proper form for
transfer (or a Book-Entry Confirmation), together with a Letter of
Transmittal or facsimile thereof, properly completed and duly executed,
with any required signature guarantees (or, in the case of a book-entry
transfer, an Agent's Message) and any other documents required by the
Letter of Transmittal, are received by the Depositary within five American
Stock Exchange ("AMEX") trading days after the date of execution of such
Notice of Guaranteed Delivery.
The Notice of Guaranteed Delivery may be delivered by hand or transmitted by
telegram, facsimile transmission or mail to the Depositary, and must include a
guarantee by a Guaranteeing Institution in the form set forth in such Notice of
Guaranteed Delivery.
In all cases, payment for Shares purchased pursuant to the Offer will be made
only after timely receipt by the Depositary of certificates for such Shares, or
timely confirmation of a Book-Entry Confirmation relating to such Shares, and a
properly completed and duly executed Letter of Transmittal (or facsimile
thereof) and any other required documents.
By executing a Letter of Transmittal as set forth above, a tendering holder of
Shares sells, assigns and transfers to, or upon the order of, the Purchaser all
right, title and interest in all Shares so tendered and irrevocably appoints the
Depositary as an attorney-in-fact with full power of substitution (such power of
attorney being deemed to be an irrevocable power coupled with an interest) (i)
to deliver certificates for such Shares (and all other shares, dividends,
distributions, rights or other securities or property issued or issuable or
distributed or distributable in respect of such Shares on or after March 17,
1995 ("Distributions")) or transfer ownership of such Shares on the account
books maintained by Book-Entry Transfer Facilities, together in either such case
with all accompanying evidence of transfer and authenticity, all upon the order
of the Purchaser, (ii) to present such Shares (and any such Distributions) for
registration and transfer on the Company's books and (iii) to receive all
benefits and otherwise exercise all rights of beneficial ownership of such
Shares (and any such Distributions), all in accordance with the terms of the
Offer.
By executing the Letter of Transmittal as set forth above, the tendering
stockholder will irrevocably appoint designees of the Purchaser as such
stockholder's proxies (such proxies being deemed to be an irrevocable proxy
coupled with an interest), each with full power of substitution, to the full
extent of such stockholder's rights with respect to the Shares tendered by such
stockholder (and any Distributions) and accepted for payment by the Purchaser
prior to the time of any stockholder vote. Such appointment will be effective
when, and only to the extent that, the Purchaser accepts such Shares for
payment. Upon such appointment, all prior proxies given by such stockholder
with respect to such Shares will be revoked and no subsequent proxies may be
given (and, if given, will not be deemed effective). Such designees of the
Purchaser will thereby be empowered, among other things, to exercise all voting
and other rights with respect to such Shares in respect of any annual, special
or adjourned meeting of the Company's stockholders, action by written consent of
stockholders, or otherwise, as they in their sole discretion deem proper. The
Purchaser reserves the right to require that, in order for Shares to be deemed
validly tendered, the Purchaser must be able to exercise full voting and other
rights with respect to such Shares, including voting at any meeting or action by
written consent of stockholders then scheduled, immediately after the
Purchaser's acceptance for payment of such Shares.
Determination of Validity. All questions as to the validity, form,
eligibility (including time of receipt) and acceptance of any tender of Shares
will be determined by the Purchaser in its sole discretion, whose determination
will be final and binding. The Purchaser reserves the absolute right to reject
any or all tenders determined by it not to be in proper form or the acceptance
for payment of which, or payment for which, may, in the opinion of the
Purchaser's counsel, be unlawful. The Purchaser also reserves the absolute
right to waive any of the conditions of the Offer (other than the Minimum
Condition, without the Company's consent) or any defect or irregularity in the
tender of any Shares, whether or not similar defects or irregularities are
waived in the case of other stockholders. No tender of Shares will be deemed to
have been validly made until all defects and irregularities have been cured or
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waived. None of the Purchaser, the Parent, the Depositary, the Information
Agent or any other person will be under any duty to give notification of any
defects or irregularities in tenders, nor shall any of them incur any liability
for failure to give any such notification. The Purchaser's interpretation of
the terms and conditions of the Offer (including the Letter of Transmittal and
instructions thereto) will be final and binding on all parties.
It is a violation of Section 14(e) of the Exchange Act and Rule 14e-4
thereunder for a person to tender Shares for his own account unless the person
so tendering (i) owns such Shares or (ii) owns other securities convertible into
or exchangeable for such Shares or owns an option, warrant or right to purchase
such Shares and intends to acquire such Shares for tender by conversion,
exchange or exercise of such option, warrant or right. Rule 14e-4 provides a
similar restriction applicable to the tender or guarantee of a tender on behalf
of another person. The tender of Shares pursuant to one of the procedures
described above will constitute a binding agreement between the tendering
stockholder and the Purchaser, upon the terms and subject to the conditions of
the Offer, including the tendering stockholder's representation and warranty
that (i) such stockholder owns the Shares being tendered within the meaning of
Rule 14e-4 and (ii) the acceptance for payment by the Purchaser of such Shares
complies with Rule 14e-4.
4. WITHDRAWAL RIGHTS. Tendered Shares may be withdrawn at any time prior to
the Expiration Date and, unless theretofore accepted for payment and paid for by
the Purchaser as provided in the Offer, may also be withdrawn after May 22,
1995. Except for such withdrawal rights, tenders of Shares pursuant to the
Offer are irrevocable.
To be effective, a written, telegraphic or facsimile transmission notice of
withdrawal must be timely received by the Depositary at one of its addresses set
forth on the back cover of this Offer to Purchase and must specify the name of
the person having tendered the Shares to be withdrawn, the number of Shares to
be withdrawn and the name of the registered holder of the Shares, if different
from the name of the person who tendered the Shares. If certificates for Shares
have been delivered or otherwise identified to the Depositary, then, prior to
the physical release of such certificates, the serial numbers shown on such
certificates must be submitted and, unless such Shares have been tendered by an
Eligible Institution, the signatures on the notice of withdrawal must be
guaranteed by an Eligible Institution which is a member in good standing of the
Securities Transfer Agents Medallion Program. If Shares have been delivered
pursuant to the procedures for book-entry transfer set forth in Section 3, any
notice of withdrawal must also specify the name and number of the account at the
appropriate Book-Entry Transfer Facility to be credited with the withdrawn
Shares and otherwise comply with such Book-Entry Transfer Facility's procedures.
Withdrawals of tenders of Shares may not be rescinded, and any Shares properly
withdrawn will thereafter be deemed not validly tendered for purposes of the
Offer. However, withdrawn Shares may be retendered by again following one of
the procedures described in Section 3 at any time prior to the Expiration Date.
All questions as to the form and validity (including time of receipt) of
notices of withdrawal will be determined by the Purchaser in its sole
discretion, whose determination will be final and binding on all parties. None
of the Purchaser, the Parent, the Depositary, the Information Agent or any other
person will be under any duty to give notification of any defects or
irregularities in any notice of withdrawal or incur any liability for failure to
give any such notification.
5. CERTAIN TAX CONSEQUENCES TO STOCKHOLDERS. The receipt by non-dissenting
stockholders of cash for Shares pursuant to the Offer (or pursuant to the
Merger) will be treated as a taxable sale for federal income tax purposes and
may also be a taxable transaction under applicable state, local, foreign and
other tax laws. In general, for federal income tax purposes, such a stockholder
will recognize gain or loss upon such sale equal to the difference between his
adjusted tax basis in the Shares sold in the Offer (or pursuant to the Merger)
and the amount of cash to be received in exchange therefor. If a stockholder
owns blocks of Shares acquired at different prices, gain or loss will be
calculated separately for each block of Shares tendered and accepted for payment
pursuant to the Offer (or converted in the Merger). Such gain or loss generally
will be capital gain or loss for federal income tax purposes if the Shares were
held as capital assets. Such capital gain or loss will be long-term capital
gain or loss with respect to Shares held more than 12 months.
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The foregoing discussion may not apply to Shares acquired by a stockholder
pursuant to an employee benefit plan or otherwise as compensation, to
stockholders who are not citizens or residents of the United States, or to other
categories of stockholders subject to special treatment under federal income tax
laws, such as dealers in securities, banks, insurance companies and tax-exempt
entities.
In order to avoid backup withholding of federal income tax on the cash
received upon the surrender of Shares pursuant to the Offer, a holder of Shares
must, unless an exemption applies, provide the Depositary with his correct
taxpayer identification number ("TIN") on Substitute Form W-9 included in the
Letter of Transmittal and certify, under penalties of perjury, that such number
is correct. If the correct TIN is not provided, a penalty may be imposed by the
Internal Revenue Service and payments made in exchange for the surrendered
Shares may be subject to backup withholding of 31%. Backup withholding is not an
additional federal income tax. Rather, the federal income tax liability of
persons subject to backup withholding will be reduced by the amount of such tax
withheld. If backup withholding results in an overpayment of taxes, a refund
may be obtained from the Internal Revenue Service.
THE FOREGOING SUMMARY OF CERTAIN FEDERAL INCOME TAX CONSEQUENCES OF THE OFFER
AND THE MERGER IS INCLUDED FOR GENERAL INFORMATION ONLY. DUE TO THE INDIVIDUAL
NATURE OF TAX CONSEQUENCES, EACH HOLDER OF SHARES, ESPECIALLY ONE WHO DISSENTS
FROM THE MERGER, IS STRONGLY URGED TO CONSULT HIS OWN TAX ADVISOR WITH RESPECT
TO THE SPECIFIC TAX CONSEQUENCES TO HIM OF THE OFFER AND THE MERGER, INCLUDING
THE APPLICATION AND EFFECTS OF APPLICABLE STATE, LOCAL, FOREIGN AND OTHER TAX
LAWS AND OF CHANGES IN THE TAX LAWS.
6. PRICE RANGE OF THE SHARES; DIVIDENDS. The Shares are traded on the AMEX
under the symbol "RRT." The following table sets forth the high and low closing
sales prices of the Shares on the AMEX as reported by Dow Jones & Company, Inc.,
for the periods indicated:
1993 HIGH LOW
------- -------
Quarter ended March 31, 1993..................... $ 3-1/8 $2-1/16
Quarter ended June 30, 1993...................... 2-7/8 2
Quarter ended September 30, 1993................. 2-3/4 2
Quarter ended December 31, 1993.................. 4 2-1/4
1994
Quarter ended March 31, 1994..................... 3-3/16 2-1/4
Quarter ended June 30, 1994...................... 3-1/4 2-3/4
Quarter ended September 30, 1994................. 3-7/8 2-3/4
Quarter ended December 31, 1994.................. 5-7/8 3-3/4
1995
January 3 through March 22....................... 11-3/8 5
On March 16, 1995, the last day of trading prior to the date of the public
announcement of the Merger Agreement, the reported closing price of the Shares
on the AMEX was $8-3/8. On March 22, 1995, the last full day of trading prior
to the printing of this Offer to Purchase, the reported closing price of the
Shares on the AMEX was $11-1/4. Stockholders are urged to obtain a current
market quotation for the Shares.
The Company has not paid any cash dividends on the Shares since 1989 and has
informed the Purchaser that it has no present intention to do so. The Company
has agreed under the Merger Agreement not to pay or declare any dividends on the
Shares prior to the termination of the Merger Agreement without the consent of
the Parent and the Purchaser.
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7. EFFECT OF THE OFFER ON THE MARKET FOR THE SHARES; AMEX LISTING; EXCHANGE
ACT REGISTRATION. The purchase of Shares pursuant to the Offer would reduce the
number of holders of Shares and the number of Shares that might otherwise trade
publicly and, depending on the number of Shares so purchased, could adversely
affect the liquidity and market value of the remaining Shares. If the Merger is
consummated, the Shares will not trade publicly and the Parent will be the sole
holder of the capital stock of the Company.
The Purchaser considers it likely that the purchase of Shares pursuant to the
Offer will mean that the Shares will no longer meet the requirements for
continued listing on the AMEX. According to the published guidelines of the
AMEX, the AMEX would consider delisting the Shares if, among other things, the
number of record holders of 100 Shares or more were reduced to less than 300,
the number of publicly held Shares (exclusive of holdings of officers,
directors, controlling stockholders or other family or concentrated holdings)
were less than 200,000 or the aggregate market value of the publicly held Shares
were less than $1,000,000. The Purchaser has been advised by the Company that
as of March 13, 1995 there were approximately 408 record holders of Shares. If,
as a result of the purchase of Shares pursuant to the Offer, the Shares no
longer meet the requirements of the AMEX for continued listing and/or trading
and such trading of the Shares on the AMEX is discontinued, the market for the
Shares could be adversely affected.
In the event that the Shares were no longer listed or traded on the AMEX, it
is possible that the Shares would trade on another securities exchange or in the
over-the-counter market and that price quotations would be reported by such
exchange, through the National Association of Securities Dealers Automated
Quotation System ("NASDAQ"), or other sources. Such trading and the
availability of such quotations would, however, depend upon the number of
shareholders and/or the aggregate market value of the Shares remaining at such
time, the interest in maintaining a market in the Shares on the part of
securities firms, the possible termination of registration of the Shares under
the Exchange Act as described below, and other factors. The Purchaser cannot
predict whether the reduction in the number of Shares that might otherwise trade
publicly would have an adverse or beneficial effect on the market price for, or
marketability of, the Shares or whether it would cause future market prices to
be greater or less than the Offer price.
The Shares are currently "margin securities" under the rules of the Board of
Governors of the Federal Reserve System (the "Federal Reserve Board"). Among
other things, this has the effect of allowing brokers to extend credit on
collateral consisting of the Shares. Depending upon factors such as the number
of record holders of the Shares and the number and market value of publicly held
Shares, following the purchase of Shares pursuant to the Offer, the Shares might
no longer constitute "margin securities" for purposes of the Federal Reserve
Board's margin regulations, in which event Shares could no longer be used as
collateral for margin loans made by brokers.
The Shares are currently registered under the Exchange Act. Such registration
of the Shares may be terminated upon application of the Company to the SEC if
the Shares are neither listed on a national securities exchange nor held by 300
or more holders of record. The Purchaser and the Parent intend to seek to cause
the Company to apply for termination of registration of the Shares as soon after
consummation of the Offer as the requirements for termination are met, and to
take all permitted actions to make the Company eligible for such termination.
Immediately upon the filing of an application to terminate registration of the
Shares, the Company's obligations to file periodic reports with the SEC would be
suspended. If registration of the Shares were terminated, the Company would no
longer be required to file such reports and certain provisions of the Exchange
Act, such as the short-swing profit recovery provisions of Section 16(b), the
requirement of furnishing a proxy statement or information statement pursuant to
Sections 14(a) and 14(c) in connection with stockholders' meetings or written
consents (including any meeting or consent that may be required to approve the
Merger) and the related requirement of furnishing an annual report to
stockholders, and the requirements of Rule 13e-3 under the Exchange Act with
respect to "going private" transactions, would no longer be applicable to the
Company. Furthermore, "affiliates" of the Company and persons holding
"restricted securities" of the Company may be deprived of the ability to dispose
of such securities pursuant to Rule 144 under the Securities Act of 1933. If
registration of the Shares under the Exchange Act were terminated, the Shares
would no longer be "margin securities" or be eligible for listing on the AMEX or
for NASDAQ reporting.
9
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If the Shares are not deregistered prior to the Merger, then the Shares will
be delisted from the AMEX and the registration of the Shares under the Exchange
Act would be terminated following the consummation of the Merger. In addition,
if registration of the Shares under the Exchange Act were terminated, the Shares
would no longer be eligible for NASDAQ reporting.
8. CERTAIN INFORMATION CONCERNING THE COMPANY. The Company is a Delaware
corporation with its principal executive offices located at 300 Plaza Drive,
Vestal, New York 13850. According to the Company's Annual Report on Form 10-K
for the fiscal year ended December 31, 1993 (the "Form 10-K"), the Company is
primarily engaged in: (i) the operation and management of Company- or
municipally-owned material recycling facilities ("MRFs") which the Company has
designed and built, which receive, separate, process and market recyclable
materials collected under a local community's overall recycling program; (ii)
providing transportation arrangements, scrap processing, data collection and
accounting services to certain regional retailers and beverage wholesalers
subject to the New York State Beverage Container Return Act in upstate New York;
and (iii) the design and project management of the construction and installation
of separated and mixed waste recycling systems and facilities, which are
intended to be operated either by the Company, municipalities or other
commercial enterprises.
Set forth below is a summary of certain consolidated financial information
with respect to the Company, excerpted or derived from the information contained
in the Form 10-K and the Company's audited financial statements for the fiscal
year ended December 31, 1994 which have been provided by the Company to the
Purchaser. More comprehensive financial information is included in such report
and such financial statements (which will be included in the Company's Annual
Report on Form 10-K for the fiscal year ended December 31, 1994, which the
Company expects to file with the SEC on or about March 31, 1995), and other
documents filed by the Company with the SEC, and the following summary is
qualified in its entirety by reference to such reports and other documents and
all of the financial information (including any related notes) contained
therein. Such reports and other documents may be inspected and copies may be
obtained from the offices of the SEC in the manner set forth below.
10
<PAGE>
SUMMARY CONSOLIDATED FINANCIAL INFORMATION OF THE COMPANY
(DOLLARS IN THOUSANDS, EXCEPT PER SHARE AMOUNTS)
<TABLE>
<CAPTION>
AT AND FOR THE YEAR ENDED DECEMBER 31,
---------------------------------------
1992 1993 1994
------------- ----------- -----------
<S> <C> <C> <C>
OPERATIONS:
Revenues (from continuing
operations).................. $39,210 $33,040 $41,794
Income (loss) (from
continuing operations)....... (3,697) 27 1,209
Income (loss) (from
discontinued operations)..... (923) - -
Loss on disposal............... (1,778) - -
------- ------- -------
Net income (loss).............. $(6,398) $ 27 $ 1,209
======= ======= =======
DATA PER SHARE (1):
Earnings (loss) per common
and common equivalent share
From continuing operations..... $ (1.41) $ 0.01 $ 0.45
From discontinued operations... (.35) - -
Loss on disposal............... (.67) - -
------- ------- -------
Net income (loss).............. $ (2.43) $ 0.01 $ 0.45
======= ======= =======
Book value per common share.... $ 3.42 $ 3.43 $ 3.85
Cash dividend per share........ - - -
FINANCIAL POSITION:
Working capital................ $ 1,992 $ 1,293 $ 2,104
Total assets................... $20,480 $16,807 $20,300
Total long term obligations and
redeemable preferred stock... $ 2,513 $ 1,784 $ 1,818
Shareholders' equity........... $ 9,018 $ 9,032 $10,232
</TABLE>
(1) Based on 2,633,000, 2,633,000 and 2,658,000 average weighted common and
common equivalent shares for the periods ended December 31, 1992, 1993 and
1994, respectively.
11
<PAGE>
Certain 1995 Financial and Budget Information. The Company does not as a
matter of course make public forecasts as to future performance or earnings.
In connection with a meeting with representatives of the Parent on March 2,
1995, Andrew T. Dwyer, Chairman of the Company, provided the Parent with data
regarding the Company's unaudited results of operations for the month of January
1995, its current cash on hand and a summary of the Company's "best case" budget
for the year ending December 31, 1995. The January results showed revenues of
$4,225,000, pre-tax income of $296,000 and net income of $281,000. Budgeted for
1995 were revenues of $60,752,000, pre-tax income of $2,815,000 and net income
of $2,635,000. Material assumptions underlying the "best case" budget related
by representatives of the Company to representatives of the Parent at the March
2, 1995, meeting were that commodity prices would remain at relatively high
levels and that the Company's major pending design and construction projects
would not be delayed. Mr. Dwyer noted, however, that the budgeted numbers did
not include a gain in excess of $700,000 on the sale of the Company's glass
processing business in February 1995, or significantly increased prices
reflected in the January 1995 results. He also noted that the Company's current
cash on hand exceeded $3,000,000.
These budget amounts were not prepared with a view to public disclosure or
compliance with published guidelines of the Commission or the guidelines
established by the American Institute of Certified Public Accountants regarding
projections. The Parent and the Purchaser did not rely on these budget amounts,
and they are included in the Offer to Purchase only because such information was
made available to the Parent and the Purchaser. None of the Parent, the
Purchaser, or the Company assumes any responsibility for the accuracy of such
budget amounts. In addition, because the estimates and assumptions underlying
these budget amounts are inherently subject to significant economic and
competitive uncertainties and contingencies, which are beyond the Parent's and
the Company's control, there can be no assurance that the budget amounts will be
realized. These budget amounts are not to be viewed as facts; actual results
may be significantly higher or lower than those budgeted. The budget amounts do
not give effect to the purchase of the Shares pursuant to the Offer or to the
Merger.
The Company is subject to the informational filing requirements of the
Exchange Act and, in accordance therewith, is obligated to file reports and
other information with the SEC relating to its business, financial condition and
other matters. Information as of particular dates concerning the Company's
directors and officers, their remuneration, options granted to them, the
principal holders of the Company's securities and any material interest of such
persons in transactions with the Company is required to be disclosed in proxy
statements distributed to the Company's stockholders and filed with the SEC.
Such reports, proxy statements and other information should be available for
inspection at the public reference facilities of the SEC at 450 Fifth Street,
N.W., Washington, D.C. 20549, and at the following regional offices of the SEC:
New York Regional Office, Seven World Trade Center, 13th Floor, New York, New
York 10048; and Chicago Regional Office, Citicorp Center, 500 West Madison
Street, Suite 1400, Chicago, Illinois 60661. Copies may be obtained by mail,
upon payment of the SEC's customary charges, by writing to the SEC's principal
office at 450 Fifth Street, N.W., Washington, D.C. 20549. Such material should
also be available for inspection at the offices of the AMEX, 86 Trinity Place,
New York, New York 10006.
Except as otherwise stated in this Offer to Purchase, the information
concerning the Company contained herein has been taken from, or based upon,
publicly available documents on file with the SEC and other publicly available
information. Although neither the Purchaser nor the Parent has any knowledge
that any such information is untrue, neither the Purchaser nor the Parent takes
any responsibility for the accuracy or completeness of such information or of
any other information concerning the Company prepared by the Company, or for any
failure by the Company to disclose events that may have occurred and may affect
the significance or accuracy of any such information.
9. CERTAIN INFORMATION CONCERNING THE PURCHASER AND THE PARENT. The Purchaser
is a Delaware corporation and a wholly owned subsidiary of the Parent formed to
effectuate the Merger. The Parent is an Illinois corporation and a leading
provider of integrated solid waste management services in North America to
commercial, industrial, municipal and residential customers, as well as to other
waste management companies. These services consist of solid waste collection,
transfer, resource recovery and disposal services. As part of these services,
the Parent is engaged in providing, through its Recycle America(R) and Recycle
Canada(R) programs, paper, glass, plastic and metal recycling services to
commercial and industrial operations and curbside collection of such materials
from
12
<PAGE>
residences; in removing methane gas from sanitary landfill facilities for
use in electricity generation; and in providing medical and infectious waste
management services to hospitals and other health care and related facilities.
In addition, the Parent provides street sweeping and parking lot cleaning
services, and Port-O-Let(R) portable sanitation services to municipalities and
commercial and special event customers. The Parent is a wholly-owned subsidiary
of WMX Technologies, Inc. ("WMX"), a Delaware corporation. The principal
business address and location of the principal executive officers of each of the
Purchaser, the Parent and WMX is 3003 Butterfield Road, Oak Brook, Illinois
60521.
WMX, through its subsidiaries, is a leading international provider of
environmental, engineering and construction, industrial and related services.
The Purchaser, Parent and WMX are collectively referred to herein as the
"Purchaser Entities." The name, citizenship, business address, present
principal occupation or employment and five-year employment history of each of
the directors and executive officers of the Purchaser Entities are set forth in
Schedule I hereto.
Until immediately prior to the time the Purchaser purchases Shares pursuant to
the Offer, it is not anticipated that the Purchaser will have any significant
assets or liabilities or engage in activities other than those incident to its
formation and capitalization and the transactions contemplated by the Offer and
the Merger. Because the Purchaser is a newly formed corporation and has minimal
assets and capitalization, no meaningful financial information regarding the
Purchaser is available.
WMX is subject to the informational filing requirements of the Exchange Act
and, in accordance therewith, is obligated to file reports and other information
with the SEC relating to its business, financial condition and other matters.
Information, as of particular dates, concerning WMX's directors and officers,
their remuneration, options granted to them, the principal holders of WMX's
securities and any material interest of such persons in transactions with WMX is
required to be described in proxy statements distributed to WMX's stockholders
and filed with the SEC. Such reports, proxy statements and other information
filed with the SEC are available for inspection and copies may be obtained in
the same manner as set forth for the Company in Section 8. The common stock of
WMX is listed on the New York Stock Exchange ("NYSE"), and such information is
also available for inspection at the offices of the NYSE, 20 Broad Street, New
York, New York 10005.
Set forth below is a summary of certain consolidated financial information
with respect to WMX and its subsidiaries excerpted or derived from the
information contained in the Annual Report of WMX on Form 10-K for the year
ended December 31, 1993 and the audited financial statements of WMX for the year
ended December 31, 1994. More comprehensive financial information is included in
such report and such financial statements (which will be included in the Annual
Report of WMX on Form 10-K for the year ended December 31, 1994, which WMX
expects to file with the SEC on or prior to March 31, 1995), and other documents
filed by WMX with the SEC, and the financial information summary set forth below
is qualified in its entirety by reference to such reports and all the financial
information and related notes contained therein.
13
<PAGE>
WMX TECHNOLOGIES, INC.
SUMMARY CONSOLIDATED FINANCIAL DATA
(IN THOUSANDS, EXCEPT PER SHARE AMOUNTS)
<TABLE>
<CAPTION>
AS OF AND FOR THE YEARS
ENDED DECEMBER 31,
-------------------------------------
1992(1) 1993(2) 1994(3)
----------- ----------- -----------
<S> <C> <C> <C>
Revenue................................. $ 8,661,027 $ 9,135,577 $10,097,318
Income before cumulative
effect of accounting changes.......... $ 921,175 $ 452,776 $ 784,381
Cumulative effect of accounting
changes............................... $ 71,139 $ -- $ --
Net income.............................. $ 850,036 $ 452,776 $ 784,381
Average common and common
equivalent shares outstanding......... 493,948 485,374 484,144
Earnings per common and common
equivalent share:
Income before cumulative effect
of accounting changes............. $ 1.86 $ .93 $ 1.62
Cumulative effect of accounting
changes........................... $ (.14) $ -- $ --
Net income.......................... $ 1.72 $ .93 $ 1.62
Dividends per share..................... $ .50 $ .58 $ .60
Total Assets............................ $14,114,180 $16,264,476 $17,538,914
Long-term debt.......................... $ 4,312,511 $ 6,145,584 $ 6,044,411
Stockholders' equity.................... $ 4,319,645 $ 4,159,452 $ 4,540,981
- ---------------
</TABLE>
(1) The results for 1992 include a non-taxable gain of $240,000,000 (before
minority interest) resulting from the initial public offering of Waste
Management International plc, as well as special charges of $219,900,000,
before tax and minority interest, primarily related to writedowns of WMX's
medical waste business, Chemical Waste Management, Inc. ("CWM")
incinerators in Chicago, Illinois and Tijuana, Mexico and The Brand
Companies, Inc.'s ("Brand") investment in its asbestos abatement business
and certain restructuring costs incurred by Brand and CWM related to the
formation of Rust International Inc. ("Rust") and one-time after-tax
charges aggregating $71,139,000, or $.14 per share, related to the
cumulative effect of adopting two new accounting standards.
(2) The results for 1993 include a non-taxable gain of $15,109,000 (before
minority interest) relating to the issuance of shares by Rust, as well as a
special asset revaluation and restructuring charge of $550,000,000, before
tax and minority interest, recorded by CWM related primarily to a
revaluation of its thermal treatment business, and a provision of
approximately $14,000,000 to adjust deferred income taxes resulting from
the 1993 tax law change.
(3) The results for 1994 include a charge of $9,200,000 (before tax and
minority interest) recorded by Rust to write off assets and to recognize
costs of exiting certain of Rust's service lines and closing offices in a
consolidation of the engineering and construction groups.
(4) Certain amounts have been restated to conform to 1994 classifications.
14
<PAGE>
On March 17, 1995, WMX announced that its Chemical Waste Management, Inc.
wholly owned subsidiary would record a special after-tax charge of approximately
$91 million, or $0.19 per WMX share, in the first quarter of 1995 primarily
related to a revaluation of investments in certain hazardous waste treatment and
processing technologies and facilities.
None of the Purchaser or, to the best knowledge of any of the Purchaser
Entities, any person listed on Schedule I or any of the other Purchaser Entities
beneficially owns or has a right to acquire any Shares. None of the Purchaser,
the Parent or, to the best knowledge of the Purchaser and the Parent, any of the
persons or entities referred to above, or any of the respective executive
officers, directors or subsidiaries of any of the foregoing which beneficially
owns or has a right to acquire any Shares, has effected any transactions in
Shares during the past 60 days.
Except as set forth in this Offer to Purchase, none of the Purchaser Entities,
or, to the best knowledge of any of the Purchaser Entities, any of the persons
listed on Schedule I, has any contract, arrangement, understanding or
relationship with any other person with respect to any securities of the
Company, including, but not limited to, any contract, arrangement, understanding
or relationship concerning the transfer or the voting of any securities of the
Company, joint ventures, loan or option arrangements, puts or calls, guarantees
of loans, guarantees against loss or the giving or withholding of proxies. None
of the Purchaser Entities, or, to the best knowledge of any of the Purchaser
Entities, any of the persons listed on Schedule I, has had any business
relationships or transactions with the Company or any of its executive officers,
directors or affiliates that would require disclosure herein under the rules of
the SEC. Except as set forth in this Offer to Purchase, there have been no
contacts, negotiations or transactions between the Purchaser Entities, or their
respective subsidiaries or, to the best knowledge of any of the Purchaser
Entities, any of the persons listed on Schedule I, and the Company or its
affiliates concerning a merger, consolidation or acquisition, tender offer or
other acquisition of securities, election of directors or a sale or other
transfer of a material amount of assets that would require disclosure herein
under the rules of the SEC. In late 1992, Wheelabrator Technologies Inc.
("WTI"), a 56%-owned subsidiary of WMX, acquired for cash the capital stock of
two subsidiaries of JWP, Inc. ("JWP"), which was then the owner of approximately
34.7% of the outstanding common stock of the Company and of which Andrew T.
Dwyer, Chairman of the Company, was Chairman of the Board and Chief Executive
Officer. The subsidiaries were engaged in the design, engineering and
installation of systems for the capture and elimination of volatile organic
compound emissions. In a separate, but related, transaction WTI acquired
substantially all of the biosolids handling and treatment businesses conducted
by another JWP subsidiary. Revenues of the businesses acquired in the year
prior to their acquisition aggregated approximately $47 million. None of these
transactions involved the Company.
10. BACKGROUND OF THE OFFER; CONTACTS WITH THE COMPANY; CERTAIN EMPLOYMENT
ARRANGEMENTS. In late spring 1994, Andrew T. Dwyer, Chairman of the Board of
the Company, contacted Phillip B. Rooney, President of the Parent, to discuss
potential synergies which might be realized if the Company's technology and
experience in designing, constructing and operating material recycling
facilities could be combined with the Parent's operating and capital resources,
either through a joint venture or by jointly pursuing certain project
opportunities. This discussion led to a meeting on June 1, 1994 between Mr.
Dwyer, Mr. Rooney and Joseph M. Holsten, Chief Financial Officer of the Parent,
at which these possible synergies were further explored. At this meeting, Mr.
Rooney also expressed an interest in having the Parent acquire the Company,
indicating that on the basis of a preliminary valuation analysis of publicly
available information regarding the Company which the Parent had performed, the
Parent might be willing to consider paying a price of $7.50 per Share in such an
acquisition. Noting the recent improvement in the Company's financial
performance, Mr. Dwyer declined to discuss a possible acquisition of the Company
at that price. He did, however, suggest that a price of at least $10.00 per
Share might be of interest to him personally. The Parent's representatives
indicated their view that such a higher price was not warranted and the
discussion of a possible acquisition terminated.
In October 1994, the Company and the Parent entered into a confidentiality
agreement and William A. Rodgers, Jr., then Vice President - Business
Development of the Parent's Mid-Atlantic Group, Anthony Farina, President of the
Parent's Northeast Group, and Daniel J. Kemna, Manager - Recycling of the
Parent, toured the Company's Ocean County, New Jersey material recovery
facility. During this site visit, portions of which were also attended by Mr.
Dwyer, Lawrence J. Schorr, President of the Company, and the Company's facility
manager, the possibility of
15
<PAGE>
the Company's being retained by the Parent to render technical advisory services
with regard to the Parent's material recovery facility operations was raised by
the Parent's representatives. Mr. Rodgers also broached the subject of a
possible acquisition of the Company by the Parent, but Mr. Dwyer indicated that
there was no interest from his standpoint in discussing such a transaction at
that time.
On January 24, 1995, the Company released its financial results for the year
ended December 31, 1994. Subsequently, Mr. Rooney contacted Mr. Dwyer's office
and Paul A. Gould, a director of the Company and a Managing Director of Allen &
Company Incorporated ("Allen & Co."), and arranged for a meeting on March 2,
1995, for the principal purpose of discussing a possible acquisition of the
Company by the Parent or considering another form of business combination
between them. Mr. Dwyer furnished the Parent's representatives with information
regarding the Company's results of operations and financial position as of and
for the month ended January 31, 1995, as well as the Company's "best case" 1995
operating budget. He also provided the Parent's representatives with an
estimate of the Company's then current cash position. See "Certain 1995
Financial and Budget Information" in Section 8. The March 2 meeting was attended
by Messrs. Rooney, Holsten and Rodgers, from Parent, and by Messrs. Dwyer and
Gould.
At the March 2 meeting, a discussion occurred regarding the Company's
management and its ongoing projects, and the assumptions underlying the
Company's 1995 operating budget were reviewed. The Parent's representatives
proposed an acquisition of the Company by the Parent on the basis of a cash
price of $10.00 per Share. Having initially during the meeting expressed an
interest in receiving $14.00 per Share in cash, Mr. Dwyer subsequently indicated
that a price of $12.00 per Share in cash would be acceptable. After further
negotiations among the participants in the meeting, it was generally agreed
that, subject to approval of the Company's Board of Directors, the Parent would
offer to acquire all of the Company's outstanding shares for a cash price of
$11.50 per Share, and Messrs. Dwyer and Gould and Allen & Co. would tender
their Company shares to the Parent in such offer, subject to the Parent's
completion of due diligence and to negotiation and execution of a definitive
acquisition agreement containing typical terms and conditions.
During the next two weeks, representatives of the Parent conducted a legal,
financial, environmental and operational review of the Company, and
representatives of the Parent and the Company (including outside counsel for all
parties) negotiated the terms of the Merger Agreement and the separate
agreements pursuant to which Messrs. Dwyer and Gould and Allen & Co. are to
tender Shares owned by them to the Parent pursuant to the Offer (the "Stock
Tender Agreements"). See "Stock Tender Agreements" in Section 11. On March 17,
1995, the Boards of Directors of the Parent, the Purchaser and the Company
unanimously approved the Merger Agreement and it was executed by all parties,
followed by execution of the Stock Tender Agreements by the parties thereto.
Certain Employment Arrangements. The Purchaser has agreed with Lawrence J.
Schorr, chief executive officer of the Company that Mr. Schorr will be employed
by the Company for a period of two years after the Merger, and thereafter on an
at-will basis, for an annual salary of $280,000, with options on WMX common
stock to be granted for 1995 and 1996 with a value equal to 100% of base salary
(prorated for 1995). The Purchaser expects to discuss arrangements with several
other key employees of the Company providing for the continued employment of
such employees at or near their current levels of compensation.
In addition, the Purchaser expects to propose an extension by the Company of
the consulting agreement between Mr. Dwyer and the Company, for a period of one
year after the Merger, at its current annual rate of $100,000.
11. PURPOSE OF THE OFFER; PLANS OR PROPOSALS OF THE PURCHASER; THE MERGER
AGREEMENT; THE STOCK TENDER AGREEMENTS. The purpose of the Offer is to acquire
control of, and a majority equity interest in, the Company as a step toward the
acquisition by the Parent of the entire equity interest in the Company. The
Parent currently intends, as soon as practicable after consummation of the
Offer, to obtain majority representation on the Company's Board of Directors and
to consummate the Merger. The Merger Agreement provides for such majority
representation on the Board of Directors, subject to compliance with Section
14(f) of the Exchange Act.
16
<PAGE>
If the Parent obtains control of the Company pursuant to the Offer or
otherwise, it expects to conduct a detailed review of the Company, its business,
assets, corporate structure, capitalization, operations, properties, policies,
management and personnel and to consider to what extent changes would be
desirable in light of the circumstances that then exist. Although significant
changes in the structure and business of the Company are not currently
contemplated, the Parent reserves the right to make such changes in the future,
which may include combining the assets and business of the Company with
operations of the Parent and other corporate affiliates of the Parent.
MERGER AGREEMENT
Effect of the Merger. The Merger Agreement provides that, subject to the
terms and conditions thereof, as soon as practicable following the expiration of
the Offer, the Purchaser will be merged into the Company, which will continue as
the surviving corporation (the "Surviving Corporation"). Each then outstanding
Share, other than Shares (i) owned by the Purchaser or the Parent or any of
their corporate affiliates, (ii) held in the treasury of the Company or (iii)
owned by stockholders who have perfected dissenters' rights will, by virtue of
the Merger and without any action on the part of the holder thereof, be
converted into and represent the right to receive, and shall be exchangeable
for, the Merger Consideration. In the Merger, each then outstanding Share owned
by the Purchaser, the Parent or any of their corporate affiliates or held in the
treasury of the Company will be canceled without payment of any consideration
therefor and without any conversion thereof. Each outstanding share of common
stock of the Purchaser will be converted into and become one fully paid and
nonassessable share of common stock of the Surviving Corporation. See
"Appraisal Rights" in this Section 11 for a discussion of the rights of
dissenters.
Upon the consummation of the Merger, the separate existence of the Purchaser
will cease and the separate corporate existence of the Company as a corporation
organized under the DGCL will continue unaffected by the Merger. The Company's
certificate of incorporation in effect immediately prior to the time the Merger
becomes effective under the DGCL (the "Effective Time"), as amended to change
the total authorized capital stock of the Surviving Corporation to 1,000 shares
of common stock, par value $1.00 per share, will be the certificate of
incorporation of the Surviving Corporation from and after the Effective Time.
The Purchaser's by-laws in effect immediately prior to the Effective Time will
be the by-laws of the Surviving Corporation until thereafter amended as provided
in such by-laws or by law. The directors of the Purchaser and the officers of
the Company immediately prior to the Effective Time will be the directors and
officers, respectively, of the Surviving Corporation, each to hold office,
subject to the provisions of the certificate of incorporation and by-laws of the
Surviving Corporation, until their respective successors have been duly elected
or appointed.
Directorships. The Merger Agreement provides that, upon the Purchaser's
acquisition of 50.1% or more of the outstanding Shares pursuant to the Offer or
otherwise, and from time to time thereafter, the Purchaser and the Parent will
be entitled, subject to compliance with applicable law, to designate such number
of the members of the Company's Board of Directors, rounded up to the next whole
number (but in no event more than one less than the total number of directors on
the Company's Board of Directors), that will give the Parent and the Purchaser,
subject to compliance with Section 14(f) of the Exchange Act, representation on
the Board of Directors equal to the product of the number of directors on the
Board of Directors and the percentage that such number of Shares so purchased
bears to the number of Shares outstanding. The Merger Agreement also provides
that the Company will, upon the request of the Parent and the Purchaser,
promptly increase the size of its Board of Directors or use all reasonable
efforts to secure the resignations of such number of directors as is necessary
to enable the Parent's and the Purchaser's designees to be elected to the
Company's Board of Directors, and will use all reasonable efforts to cause such
designees to be so elected, subject in all cases to Section 14(f) of the
Exchange Act. From and after the date that such designees to the Company's
Board of Directors constitute a majority of the Board of Directors of the
Company, any action taken by the Company to amend or terminate the Merger
Agreement or to waive any conditions to the performance of the Company's
obligations under the Merger Agreement will require the approval of a majority
of the members of the Board of Directors, if any, who are not designees or
affiliates of the Parent or the Purchaser. The Parent currently intends to
designate to the Company's Board of Directors after consummation of the Offer
only persons listed as executive officers of Parent, Purchaser or WMX on
Schedule I.
17
<PAGE>
Representations and Warranties. The Merger Agreement contains representations
and warranties by the Company regarding, among other things, its capitalization,
authority relative to the Merger Agreement, its filings with the SEC,
information supplied in connection with the Offer, its business, financial
condition, assets and liabilities and the absence of certain changes in its
business. The Merger Agreement contains representations and warranties by the
Parent and the Purchaser regarding, among other things, their authority relative
to the Merger Agreement and the availability to them of sufficient funds to
effectuate the Offer.
Conduct of Business. Pursuant to the Merger Agreement, the Company has agreed
that, among other things, during the period from the date of the Merger
Agreement until the Effective Time (except as expressly contemplated by the
Merger Agreement, including any disclosures contemplated by Annex B of the
Merger Agreement, or to the extent that the Parent and the Purchaser shall
otherwise consent in writing) (i) the Company will carry on its business in the
usual, regular and ordinary course in substantially the same manner as
heretofore conducted; (ii) the Company will not and will not propose to (a)
declare or pay any dividend on, or make other distributions in respect of, any
of its capital stock (other than any regular dividends on its preferred stock),
(b) split, combine or reclassify any of its capital stock or issue, authorize or
propose the issuance of any other securities in respect of, in lieu of or in
substitution for shares of capital stock of the Company or (c) repurchase or
otherwise acquire any shares of capital stock of the Company; (iii) the Company
will not sell, issue or authorize or propose the sale or issuance of, or
purchase or propose the purchase of, any shares of its capital stock or any
class of securities convertible into, or rights, warrants or options to acquire
any such shares or other convertible securities (other than the issuance of
Shares upon the exercise or conversion of outstanding stock options, warrants or
convertible securities); (iv) the Company will not amend its certificate of
incorporation or by-laws; and (v) the Company will not (a) acquire or agree to
acquire by merging or consolidating with, or by purchasing a substantial portion
of the assets or securities of, or by any other manner, any business or any
corporation, partnership, association or other business organization or division
thereof or otherwise acquire or agree to acquire any assets that are material,
individually or in the aggregate, to the Company, (b) sell, lease or otherwise
dispose of, or agree to sell, lease or otherwise dispose of, any of its assets
that are material, individually or in the aggregate, to the Company, except in
the ordinary course of business consistent with prior practice, (c) incur any
indebtedness for borrowed money or guarantee any such indebtedness, or issue or
sell any debt securities of the Company or guarantee any debt securities of
others, other than in the ordinary course of business consistent with prior
practice, (d) adopt or amend in any material respect any collective bargaining
agreement or employee benefit plan other than in the ordinary course of business
consistent with prior practice, or (e) grant to any executive officer any
increase in compensation or in severance or termination pay, or enter into any
employment agreement with any executive officer, except as may be required under
employment or termination agreements in effect on the date of the Merger
Agreement or in the ordinary course of business consistent with prior practice.
The Merger Agreement further provides that, if a vote of stockholders of the
Company is legally required to authorize the Merger, the Parent and the
Purchaser will vote all the Shares owned or acquired by them in favor of the
Merger.
Conditions to the Merger. The respective obligations of each of the Company,
the Purchaser and the Parent to effect the Merger are subject to the
satisfaction or waiver at or prior to the Effective Time of each of the
following conditions: (i) if required by the DGCL, the Merger Agreement shall
have been approved and adopted by the requisite affirmative vote of the
stockholders of the Company in accordance with the DGCL; (ii) no statute, rule,
regulation, executive order, decree, injunction or restraining order shall have
been enacted, entered, promulgated or enforced by any court of competent
jurisdiction or governmental authority that prohibits or restricts the
consummation of the Merger; and (iii) any waiting period applicable to the
Merger under the HSR Act will have expired or been terminated. The obligations
of the Purchaser and the Parent to consummate the Merger are also subject to the
satisfaction, at or prior to the Effective Time, of the condition that the
Purchaser will have accepted for payment and paid for Shares tendered pursuant
to the Offer; this condition will be deemed satisfied, however, if the Purchaser
fails to accept for payment and pay for Shares pursuant to the Offer in
violation of the terms of the Offer.
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<PAGE>
Stock Options, Warrants and Convertible Securities. The Merger Agreement
provides that at or prior to the consummation of the Offer, the Company will
make arrangements the effect of which shall be that no shares of capital stock
of the Surviving Corporation will be issuable after the Effective Time pursuant
to options, warrants or convertible securities to acquire shares and, (i) in
full settlement thereof, each holder of an option or warrant will receive or be
entitled to receive promptly after the Effective Time a cash payment from the
Company in an amount equal to the excess, if any, of the price paid for each
Share pursuant to the Merger over the per Share exercise price of such stock
option or warrant, multiplied by the number of Shares covered by such stock
option or warrant, net of any income tax withholding and payroll taxes
applicable to such payment, and (ii) all outstanding 8.25% convertible
redeemable preferred stock of the Company will be redeemed by the Company or
converted to Shares prior to the consummation of to the Offer.
Stockholder Approval. If the Purchaser, or any other direct or indirect
subsidiary of the Parent, acquires at least 90% of the outstanding Shares
pursuant to the Offer, or otherwise, the Purchaser would, under the DGCL, be
able to effect the Merger without any prior notice to, or vote by, the Company's
stockholders. If fewer than 90% of the outstanding Shares are acquired by the
Purchaser, the Merger would be subject to approval by the holders of a majority
of outstanding Shares under the DGCL. Accordingly, if the number of Shares
acquired by the Purchaser constitutes a majority of the outstanding Shares, the
Purchaser will be able to effect the Merger without the affirmative vote of any
other holder of Shares. Holders of approximately 33% of the outstanding Shares
(on a fully diluted basis) have agreed to tender the Shares beneficially owned
by them pursuant to the Offer. See "Stock Tender Agreements" below in this
Section 11.
Appraisal Rights. No appraisal rights are available in connection with the
Offer. However, if the Merger is consummated, stockholders of the Company may
have certain rights under Delaware law to dissent and demand appraisal of, and
payment in cash of the fair value of, their Shares. Such rights, if the
statutory procedures were complied with, could lead to a judicial determination
of the fair value (excluding any element of value arising from the
accomplishment or expectation of the Merger) required to be paid in cash to such
dissenting holders for their Shares. Any such judicial determination of the
fair value of Shares could be based upon considerations other than or in
addition to the price paid in the Offer and the market value of the Shares,
including asset values and the investment value of the Shares. The value so
determined could be more or less than the purchase price per Share pursuant to
the Offer or the consideration per Share to be paid in the Merger.
In addition, several decisions by Delaware courts have held that, in certain
instances, a controlling stockholder of a corporation involved in a merger has a
fiduciary duty to the other stockholders that requires the merger to be fair to
such other stockholders. In determining whether a merger is fair to minority
stockholders, the Delaware courts have considered, among other things, the type
and amount of consideration to be received by the stockholders and whether there
were fair dealings among the parties. The Delaware Supreme Court has indicated
in recent decisions that in most cases the remedy available in a merger that is
found not to be "fair" to minority stockholders is the right to appraisal
described above or a damages remedy based on essentially the same principles.
Proposals by Third Parties. Pursuant to the Merger Agreement, the Company has
agreed that it shall not, and shall use all reasonable efforts to cause its
affiliates, officers, directors, employees, representatives and agents not to,
directly or indirectly, solicit, initiate or knowingly promote discussions or
negotiations with, any corporation, partnership, person or other entity or group
(other than the Parent or any of its affiliates or representatives) concerning
any merger, tender offer, sale of any material assets, sale of shares of capital
stock or similar transaction involving the Company or any division of the
Company. Notwithstanding the foregoing, the Company may, if required by the
fiduciary duties of the directors after consulting with outside counsel to the
Company, (i) furnish information to any corporation, partnership, person or
other entity or group pursuant to appropriate confidentiality agreements, and
(ii) negotiate or participate in discussions with such entity or group. The
Company shall immediately advise the Parent of the terms of any proposal, the
fact of any negotiation, discussion or inquiry and the identity of the party
making such proposal or inquiry or involved in such discussion or negotiation.
See "Certain Fee" below for information regarding a fee that might become
payable by the Company to the Purchaser as a result of such other transactions.
19
<PAGE>
Certain Fee. If at any time while the Merger Agreement is in effect (i) any
person, corporation, partnership or other entity (other than the Parent, the
Purchaser or any of their affiliates) (a "Third Person") acquires more than 33%
of the outstanding Shares, (ii) a Third Person acquires more than 50% of the
Company's total assets, (iii) the Company consummates a plan of liquidation
relating to more than 50% of its total assets, (iv) the Company repurchases more
than 50% of the outstanding Shares, (v) the Company consummates a merger of the
Company with, the sale of all or substantially all of the assets of the Company
to, or any other business combination involving the Company with, a Third
Person, or (vi) Parent and the Purchaser terminate the Merger Agreement because
of the failure to satisfy the Minimum Condition and within one year from the
date of such termination a transaction contemplated by the preceding clauses
(i), (ii) or (v) is consummated with a Third Person, provided (1) that such
transaction is accomplished so as to provide a yield to holders of Shares of at
least the equivalent of $11.50 per Share and (2) there was a public announcement
or written proposal to effect such transaction by or with such Third Person
while the Merger Agreement was in effect, or (vii) the Board of Directors of the
Company withdraws or amends in any material respect its recommendation that the
Offer be accepted by the Company's stockholders and that stockholders tender
their Shares in the Offer, unless such withdrawal or amendment results from a
material breach by the Parent or the Purchaser of any representations or
warranties in the Merger Agreement or a failure by the Parent or the Purchaser
to fulfill any material covenant in the Merger Agreement, then the Company
shall, within five days after the first of such events has occurred, pay the
Parent a fee of $1,000,000.
Certain Amendments. The Merger Agreement further provides that, whether
before or after the vote of the holders of Shares contemplated thereby, the
Merger Agreement may be amended by written agreement of the Company, the Parent
and the Purchaser; however, after the approval of the Merger Agreement by the
holders of Shares, no such amendment shall reduce or change the Merger
Consideration to be delivered to the holders of Shares or shall otherwise
adversely affect the rights under the Merger Agreement of the holders of Shares
without their approval.
Indemnification. The Merger Agreement provides that the Parent acknowledges
that all rights to indemnification or limitations on liability currently
existing in favor of the present or former employees, agents, directors or
officers of the Company as provided in its certification of incorporation, by-
laws, agreements or pursuant to applicable law in effect on the date of the
Merger Agreement shall survive the Merger and shall continue in full force and
effect for a period of not less than the applicable statutes of limitations;
however, in the event any claim or claims are asserted or made within such
applicable period, all rights to indemnification in respect of such claim or
claims shall continue until disposition of any and all such claims. If any
action, suit, proceeding or other investigation relating to the Merger Agreement
or to the transactions contemplated thereby is commenced, whether before or
after the Merger becomes effective, the parties shall cooperate with each other
and use all reasonable efforts to defend against and respond to any such action,
suit, proceeding or investigation.
The Merger Agreement also provides that the Purchaser and the Parent will
maintain in effect the Company's current directors' and officers' insurance
policy for the remainder of its term and purchase a policy providing continued
coverage relating to actions, alleged actions, omissions and alleged omissions
occurring at or prior to the time of the Merger for a period of at least three
years from and thereafter, provided that the total amount the Parent and the
Purchaser are required to expend for such coverage shall not exceed 250% of the
1994 premium for such current policy.
Termination. The Merger Agreement may be terminated and the Merger abandoned
at any time prior to the Effective Time, whether before or after stockholder
approval of the Merger:
(i) by mutual written consent of the Boards of Directors of the Company,
the Parent and the Purchaser;
(ii) by any of the Company, the Parent or the Purchaser:
(a) if a purchase of Shares pursuant to the Offer shall not have
occurred on or before June 30, 1995; provided, however, that the right
to terminate the Merger Agreement for such reason will not be
available to any party whose failure to fulfill any obligation under
20
<PAGE>
the Merger Agreement has been the cause of, or resulted in, the
failure of such purchase to occur on or before such date; or
(b) if any court of competent jurisdiction, or any governmental body,
or regulatory or administrative agency or commission having
appropriate jurisdiction has issued an order, decree or ruling or
taken any other action restraining, enjoining or otherwise prohibiting
the transactions contemplated by the Merger Agreement and such order,
decree, ruling or other action shall have become final and non-
appealable;
(iii) by the Company:
(a) if the Purchaser has (1) failed to commence the Offer within five
business days following public announcement of the Merger Agreement,
(2) terminated the Offer or (3) failed to pay (by deposit with the
Depositary for the Offer) for Shares pursuant to the Offer within five
business days following the Expiration Date; or
(b) if, prior to the purchase of Shares pursuant to the Offer, the
Board of Directors of the Company has (1) withdrawn (or modified in a
manner adverse to the Purchaser) its recommendation to the holders of
Shares to accept the Offer in order to permit the Company, in response
to an offer from a Third Person as to which the Company has not
contravened its obligations with respect thereto (as described above
in this Section 11 under "Proposals by Third Parties"), to execute a
definitive agreement providing for the acquisition of the Company, or
to approve a tender offer for all of the outstanding Shares, in either
case on terms determined by the Company's Board of Directors after
consultation with outside legal and financial advisors, to be more
favorable to the holders of Shares than the acquisition of the Company
contemplated by the Merger Agreement, or (2) recommended another such
offer; or
(iv) by the Parent and the Purchaser:
(a) if due to an occurrence that would result in a failure to satisfy
any of the conditions set forth in Section 13, the Purchaser shall
have (1) failed to commence the Offer within five business days
following the date of the Merger Agreement or (2) terminated the
Offer; or
(b) if, prior to the purchase of Shares pursuant to the Offer, the
Board of Directors of the Company shall have withdrawn (or modified in
a manner adverse to the Purchaser) its approval or recommendation of
the Offer, the Merger Agreement or the Merger, or shall have
recommended another offer; or
(c) if the Company deliberately fails to perform in any material
respect any of its obligations under the Merger Agreement, and, at the
time of such failure, the Parent's and the Purchaser's designees on
the Board of Directors of the Company do not constitute a majority of
the members of the Board of Directors of the Company.
STOCK TENDER AGREEMENTS
After the execution of the Merger Agreement, the Purchaser and the following
stockholders of the Company entered into the Stock Tender Agreements: Allen &
Co., Paul A. Gould and Andrew T. Dwyer. Pursuant to such Agreements, so long
as the Board of Directors of the Company has not withdrawn its recommendation
of the Offer in accordance with the Merger Agreement, those stockholders will
validly tender (and not thereafter withdraw) the Shares beneficially owned by
each of them pursuant to and in accordance with the terms of the Offer. As of
March 17, 1995, the stockholders (with members of their families) beneficially
owned a total of 1,082,506 Shares, representing approximately 33% of the then
outstanding Shares, on a fully diluted basis.
21
<PAGE>
In connection with the Stock Tender Agreements, the parties thereto have made
certain customary representations, warranties and covenants, including with
respect to (i) ownership of the Shares, (ii) their authority to enter into and
perform their obligations under the Stock Tender Agreements, (iii) the ability
of the parties to enter into the Stock Tender Agreements without violating other
agreements to which they are party, (iv) the absence of liens and encumbrances
on and in respect of the stockholder parties' Shares and (v) restrictions on the
transfer of the stockholder parties' Shares.
12. SOURCE AND AMOUNT OF FUNDS. If all the Shares outstanding or issuable
upon exercise of rights to acquire Shares on March 17, 1995 are purchased
pursuant to the Offer, the amount required by the Purchaser to purchase such
Shares and to pay related fees and expenses will be approximately $38,000,000,
which amount will be furnished to the Purchaser by the Parent. The Parent is
expected to obtain such funds from its general corporate funds.
13. CERTAIN CONDITIONS OF THE OFFER. Notwithstanding any other provisions of
the Offer, the Purchaser will not be required to accept for payment or, subject
to any applicable rules and regulations of the SEC, including Rule 14e-1(c)
(relating to the Purchaser's obligation to pay for or return tendered Shares
promptly after termination of the Offer), pay for, and may delay the acceptance
for payment, or the payment of, any tendered Shares not theretofore accepted for
payment or paid for, and may terminate or amend the Offer as provided in Section
11 hereof, if the Minimum Condition has not been satisfied or if, at any time on
or after the date of the Merger Agreement and at or before the time of payment
for any such Shares (whether or not any Shares have been accepted for payment or
paid for pursuant to the Offer), any of the following events have occurred:
(i) there shall have occurred or been threatened any event which
could reasonably be expected to have any adverse effect on the business,
financial condition or results of operations of the Company and its
subsidiaries which is material to the Company and its subsidiaries taken as
a whole, excluding any change which generally affects the recycling
industry as a whole in the United States (such as changes in commodity
prices and changes in legal requirements) (a "Material Adverse Effect"); or
(ii) there shall have occurred (a) any general suspension of trading
in, or limitation on prices for, securities on the NYSE or the AMEX
(excluding any coordinated trading halt triggered solely as a result of a
specified decrease in a market index), (b) a declaration of a banking
moratorium or any suspension of payments in respect of banks in the United
States (whether or not mandatory), (c) any material limitation (whether or
not mandatory) imposed by any governmental authority on the extension of
credit by banks or other lending institutions in the United States that
materially and adversely affects the ability of the Parent and the
Purchaser to obtain extensions of credit, or (d) from the date of the
Merger Agreement through the date of termination or expiration of the
Offer, a decline of at least 33% in either the Dow Jones Average of
Industrial Stocks or the Standard & Poor's 500 Index; or
(iii) (a) any of the representations and warranties made by the
Company in the Merger Agreement shall not be true and correct in any
material respect or (b) the Company shall have breached in any material
respect any covenant contained in the Merger Agreement or the Merger
Agreement shall have been terminated in accordance with its terms; or
(iv) there shall have been any action taken, or any statute, rule,
regulation, judgment, order or injunction promulgated, enacted, entered or
enforced, by any state, federal or foreign government or governmental
authority or by any court, domestic or foreign, that could reasonably be
expected to (a) make the acceptance for payment of, or the payment for,
some or all of the Shares illegal or otherwise prohibited, (b) impose
limitations on the ability of the Parent or the Purchaser to acquire or
hold or to exercise effectively all rights of ownership of Shares,
including, without limitation, the right to vote any Shares purchased by
either of them on all matters properly
22
<PAGE>
presented to the stockholders of the Company, or (c) prohibit or impose any
material limitation on the Parent's or the Purchaser's ownership or
operation of all or a material portion of the assets or business of the
Company or any of its subsidiaries or affiliates; or
(v) the Company, the Parent or the Purchaser shall have failed to
receive any or all governmental consents and approvals necessary to
consummate the Offer, which, if not received, could reasonably be expected
to have a Material Adverse Effect; or
(vi) the Board of Directors of the Company shall have publicly
(including by amendment of the Schedule 14D-9) withdrawn or amended in any
respect its recommendation of the Offer or shall have resolved to do so,
unless such withdrawal or amendment results from a material breach by
Parent or Purchaser of any representations or warranties in the Merger
Agreement or a failure by Parent or Purchaser to fulfill any material
covenant therein.
The foregoing conditions are for the sole benefit of the Parent and the
Purchaser, may be asserted by the Parent or the Purchaser regardless of the
circumstance giving rise to such condition and, subject to the terms of the
Merger Agreement, may be waived by the Parent and the Purchaser, in whole or in
part at any time and from time to time, in their sole discretion (except that
the Minimum Condition may not be waived by the Purchaser without the consent of
the Company). The failure by the Parent and the Purchaser at any time to
exercise any of the foregoing rights will not be deemed a waiver of any such
right and each such right will be deemed an ongoing right, which may be asserted
at any time and from time to time. Any determination by the Parent and the
Purchaser shall be final and binding upon all parties, including tendering
stockholders.
14. CERTAIN LEGAL MATTERS. Except as described in this Section 14, based on
information provided by the Company, neither the Purchaser nor the Parent is
aware of (i) any license or regulatory permit that appears to be material to the
business of the Company and its subsidiaries taken as a whole which might be
adversely affected by the Purchaser's acquisition of Shares as contemplated
herein or (ii) any approval or other action by any governmental, administrative
or regulatory agency or authority that would be required for the acquisition or
ownership of Shares by the Purchaser as contemplated herein. Should any such
approval or other action be required, the Parent and the Purchaser currently
contemplate that such approval or other action will be sought. There can be no
assurance, however, that any such approval or other action, if needed, would be
obtained or would be obtained without substantial conditions, or that failure to
obtain any such approval or other action might not result in consequences
adverse to the Company's business, or that certain parts of the Company's
business might not have to be disposed of in the event that such approvals were
not obtained or such other actions were not taken or in order to obtain any such
approval or other action. If certain types of adverse action are taken with
respect to the matters discussed below, the Purchaser could decline to accept
for payment or pay for any Shares tendered. See Section 13 for certain
conditions to the Offer and Section 11 for certain conditions to the Merger,
including conditions with respect to litigation and governmental approvals.
State Takeover Statutes. A number of states have adopted state "takeover"
statutes and regulations which purport, to varying degrees, to be applicable to
attempts to acquire securities of corporations that are incorporated or have
substantial assets, stockholders, principal executive offices or a principal
place of business in such states. Except for (S)203 of the DGCL discussed below,
the Purchaser does not believe that any of these statutes will by their terms
apply to the Offer, and the Purchaser may not have complied with certain of
these statutes. The Purchaser reserves the right to challenge the applicability
of any state law purporting to apply to the Offer (including (S)203 of the
DGCL), and neither anything in this Offer nor any action taken in connection
herewith is intended as a waiver of such right. To the extent that certain
provisions of these statutes or regulations may purport to apply to the Offer,
the Purchaser believes that there are reasonable bases for contesting such
statutes or regulations. In the event that it were to be asserted that one or
more state takeover statutes or regulations are applicable to the Offer, and an
appropriate court does not determine that they are inapplicable or invalid as
applied to the Offer, the Purchaser might be required to file certain
information with, or to receive approvals from, the relevant state authorities,
and the Purchaser might be unable to accept for payment or pay for Shares
tendered pursuant to the Offer, or be delayed in continuing or consummating the
Offer. In that case, the Purchaser may not be obligated to accept for payment or
pay for any tendered Shares.
23
<PAGE>
The State of Delaware has adopted (S)203 of the DGCL, entitled "Business
Combinations with Interested Stockholders," which is intended to regulate
certain business combinations involving Delaware corporations, such as the
Company. The restrictions contained in (S)203 of the DGCL, however, will not
apply to the Offer, the Merger and the Stock Tender Agreements because such
transactions have been unanimously approved by the Board of Directors.
Antitrust. Pursuant to the requirements of the HSR Act, the Parent and the
Company each filed a Notification and Report Form with the FTC and the Antitrust
Division with respect to the Offer on March 20, 1995 and March 21, 1995,
respectively. See Section 2.
The FTC and the Antitrust Division frequently scrutinize the legality under
the antitrust laws of transactions such as the Purchaser's proposed acquisition
of the Company pursuant to the Offer and the Merger. At any time before or
after the Purchaser's purchase of Shares or the consummation of the Merger, the
FTC or the Antitrust Division could take such action under the antitrust laws as
it deems necessary or desirable in the public interest, including seeking to
enjoin the purchase of Shares pursuant to the Offer or the consummation of the
Merger or seeking the divestiture of Shares purchased by the Purchaser or the
divestiture of substantial assets of the Parent, the Company or their respective
subsidiaries. The Purchaser and the Parent do not believe that consummation of
the Offer and the Merger will result in violation of any applicable antitrust
laws. However, there can be no assurance that a challenge to the Offer or the
Merger on antitrust grounds will not be made or, if such a challenge is made, of
the result thereof.
15. FEES AND EXPENSES. The Purchaser has retained Morrow & Co., Inc. to act
as the Information Agent and Harris Trust Company of New York to act as
Depositary in connection with the Offer. The Information Agent may contact
holders of Shares and may request brokers, dealers, banks, trust companies and
other nominee stockholders to forward the Offer material to beneficial owners.
The Parent will pay the Information Agent and the Depositary aggregate
compensation of approximately $5,000, plus expenses, for their services, and the
Information Agent and the Depositary will be indemnified against certain
liabilities and expenses in connection therewith.
Neither the Parent nor the Purchaser will pay any fees or commissions to any
broker or dealer or other person (other than the Information Agent) for
soliciting tenders of Shares pursuant to the Offer. Brokers, dealers,
commercial banks and trust companies will be reimbursed by the Purchaser for
customary mailing and handling expenses incurred by them in forwarding material
to their customers.
16. MISCELLANEOUS. The Offer is not being made to (nor will tenders be
accepted from or on behalf of) holders of Shares in any jurisdiction in which
the making of the Offer or the acceptance thereof would not be in compliance
with the laws of such jurisdiction. In any jurisdiction the securities laws or
blue sky laws of which require the Offer to be made by a licensed broker or
dealer, the Offer may be made on behalf of the Purchaser by one or more
registered brokers or dealers that are licensed under the laws of such
jurisdiction.
No person has been authorized to give any information or to make any
representation on behalf of the Purchaser or the Parent not contained herein or
in the Letter of Transmittal and, if given or made, such information or
representation must not be relied upon as having been authorized.
The Purchaser has filed with the SEC a Statement on Schedule 14D-1 (including
exhibits) pursuant to Rule 14d-3 under the Exchange Act furnishing certain
additional information with respect to the Offer. Among the exhibits so filed
is a copy of each of the Merger Agreement and the Stock Tender Agreements. In
addition, the Company has filed with the SEC a Statement on Schedule 14D-9
(including exhibits) pursuant to Rule 14d-9 under the Exchange Act. Such
Statements and any amendments thereto, including exhibits, may be inspected and
copies may be obtained from the offices of the SEC and the AMEX in the manner
set forth in Section 8 of this Offer to Purchase (except that they will not be
available at the regional offices of the SEC).
WMI ACQUISITION SUB, INC.
March 23, 1995
24
<PAGE>
SCHEDULE I
DIRECTORS AND EXECUTIVE OFFICERS OF
WMI ACQUISITION SUB, INC., WASTE MANAGEMENT, INC.
AND WMX TECHNOLOGIES, INC.
-------------------------------
1. DIRECTORS AND EXECUTIVE OFFICERS OF WMI ACQUISITION SUB, INC. Set forth
below are the names and present principal occupation and employment, and
material occupations, positions, offices or employments for the past five
years, of each director and executive officer of WMI Acquisition Sub, Inc.
("Purchaser"). Each such person is a citizen of the United States and, except
as otherwise set forth below, the business address of each of the persons
listed is 3003 Butterfield Road, Oak Brook, Illinois 60521.
Present Principal Occupation
or Employment; Material
Positions Held During
Name the Past Five Years
- --------------------------- ---------------------------------------------------
Phillip B. Rooney Director and President of the Purchaser. Director
of WMX Technologies, Inc. ("WMX") since 1981 and
has served as its President and Chief Operating
Officer since November 1984. Since January 1994,
he has also served as Chairman of the Board and
Chief Executive Officer of Waste Management, Inc.,
a wholly owned, operating subsidiary of WMX
("Parent"). Mr. Rooney commenced employment with
WMX in 1969 and first became an officer of WMX in
1971. Since November 1990, he has served as
Chairman of the Board and Chief Executive Officer
of Wheelabrator Technologies Inc. ("WTI"), and
since January 1993 he has served as Chairman of
the Board of Rust International Inc. ("Rust").
Joseph M. Holsten Director, Vice President and Treasurer of the
Purchaser. Mr. Holsten has served as Executive
Vice President of the Parent since November 1994
and as its Chief Financial Officer since October
1993, having also during 1993 briefly acted as
Chief Financial Officer of Rust. Prior thereto,
from April 1992 to September 1993, Mr. Holsten
served as Vice President--Acquisitions and
Development for Waste Management International
Services Limited, a WMX affiliate which provides
services to Waste Management International, and
from January 1990 to March 1992 as Vice President
--Finance and Administration or Vice President and
Controller of a predecessor company.
T. Michael O'Brien, Jr. Director, Vice President and Secretary of the
Purchaser. Mr. O'Brien has been Vice President
and General Counsel of the Parent since December
1993. From October 1991 to November 1993, he
served as Group Vice President--Law and
Compliance in the Parent's West Group and from
August 1988 to September 1991 as Region Vice
President and General Counsel--Southeast Region
of the Parent.
<PAGE>
2. DIRECTORS AND EXECUTIVE OFFICERS OF PARENT. Set forth below are the names
and present principal occupation and employment, and material occupations,
positions, offices or employments for the past five years, of each director and
executive officer of Parent. Each such person is a citizen of the United States
and, except as otherwise set forth below, the business address of each of the
persons listed is 3003 Butterfield Road, Oak Brook, Illinois 60521.
Present Principal Occupation
or Employment; Material
Positions Held During
Name the Past Five Years
- --------------------------- ---------------------------------------------------
Phillip B. Rooney Director and President of Parent. See paragraph 1
for additional information.
Joseph M. Holsten Director, Executive Vice President and Chief
Financial Officer of Parent. See paragraph 1 for
additional information.
T. Michael O'Brien, Jr. Director, Vice President and General Counsel of
Parent. See paragraph 1 for additional information.
3. DIRECTORS AND EXECUTIVE OFFICERS OF WMX TECHNOLOGIES, INC. Set forth below
are the names and present principal occupation and employment, and material
occupations, positions, offices or employments for the past five years, of each
director and executive officer of WMX Technologies, Inc. ("WMX"). Each such
person is a citizen of the United States and, except as otherwise set forth
below, the business address of each of the persons listed is 3003 Butterfield
Road, Oak Brook, Illinois 60521.
Present Principal Occupation
or Employment; Material
Positions Held During
Name the Past Five Years
- --------------------------- ---------------------------------------------------
J. Steven Bergerson Senior Vice President--Law and Compliance since
August 1992. He has been a Vice President of WMX
since 1984 and was General Counsel of WMX from
1974 until August 1992. Mr. Bergerson has been
employed by WMX since 1973 and will retire from
WMX effective March 31, 1995.
I-2
<PAGE>
Dean L. Buntrock Director of WMX and has served as Chairman of the
Board and Chief Executive Officer of WMX since
1968. From September 1980 to November 1984, he
also served as President. From May 1993 to
January 1995, Mr. Buntrock was also Chairman of
the Board of Chemical Waste Management, Inc.
("CWM"), a position he previously held from 1986
to September 1991.
Herbert A. Getz Vice President of WMX since May 1990 and General
Counsel since August 1992. He has also been
Secretary of WMX since January 1988. He also
served as Assistant General Counsel of WMX from
December 1985 until August 1992. Mr. Getz has
also held the offices of Vice President, General
Counsel and Secretary of Parent from April 1989
until December 1993, and was Vice President and
Secretary of Rust from January 1993 to May 1994.
He served as Vice President, Secretary and General
Counsel of WTI from November 1990 until May 1993.
Thomas C. Hau Vice President and Controller and Principal
Accounting Officer of WMX since he commenced
employment with WMX in September 1990. From 1971
until his employment by WMX, Mr. Hau was a partner
of Arthur Andersen LLP.
James E. Koenig Senior Vice President of WMX since May 1992,
Treasurer of WMX since 1986 and its Chief
Financial Officer since 1989. Mr. Koenig first
became a Vice President of WMX in 1986. Mr.
Koenig also served as Vice President, Chief
Financial Officer and Treasurer of WTI from
November 1990 to May 1993.
Phillip B. Rooney Director of WMX since 1981 and has served as its
President and Chief Operating Officer since
November 1984. See paragraph 1 for additional
information.
Donald A. Wallgren Vice President and Chief Environmental Officer of
WMX since January 1992. He held the same position
at WMI from 1989 to May 1990. From 1990 to 1992
he served as Vice President--Recycling,
Development and Environmental Management of WMI.
H. Jesse Arnelle Director of WMX since 1992 and senior partner of
Business Address: Arnelle, Hastie, McGee, Willis and Greene, a San
Arnelle, Hastie, McGee, Francisco-based corporate law firm, for more than
Willis & Greene the past ten years. He currently also serves as
One Market Plaza Vice Chairman of the Pennsylvania State University
Spear Street Tower Board of Trustees.
39th Floor
San Francisco, CA 94105
I-3
<PAGE>
Jerry E. Dempsey Director of WMX since 1984, and since September
Business Address: 1993, Chairman and Chief Executive Officer of PPG
PPG Industries, Inc. Industries, Inc., a glass, coatings and chemicals
One PPG Place company. From May 1988 to June 1993, Mr. Dempsey
Pittsburgh, PA 15272 was Senior Vice President of WMX. From July 1985
to September 1991, he was also President and Chief
Executive Officer of CWM. From September 1991 to
May 1993, Mr. Dempsey served as Chairman of the
Board of CWM.
Alexander B. Trowbridge Director of WMX since 1985 and President of
Business Address: Trowbridge Partners, Inc., a consulting services
Trowbridge Partners, Inc. firm, since January 1990. He was President of the
1155 Connecticut Avenue, National Association of Manufacturers, Washington,
N.W. D.C., from January 1980 to January 1990. Mr.
Suite 800 Trowbridge also served as U.S. Secretary of
Washington, D.C. 20036 Commerce in 1967 and 1968 and as Vice Chairman of
Allied Chemical Corp. from 1976 to 1980. Mr.
Trowbridge has served as a consultant to WMX since
1991.
Dr. Pastora San Juan Director of WMX since July 1994. Professor since
Cafferty 1985 at the University of Chicago's School of
Business Address: Social Service Administration where she has been a
The University of Chicago member of the faculty since 1971.
The School of Social
Service Administration
969 East 60th Street
Chicago, IL 60637
Donald F. Flynn Director of WMX since 1981. Chairman of the Board
Business Address: and President of Flynn Enterprises, Inc., a
Flynn Enterprises, Inc. financial advisory and venture capital firm, since
676 North Michigan Avenue November 1988. He has also served as Chairman of
Suite 4000 the Board and Chief Executive Officer of Discovery
Chicago, IL 60611 Zone, Inc., a franchisor and operator of indoor
entertainment and fitness facilities designed for
children, since July 1992. Mr. Flynn has also
served as a consultant to WMX from January 1991 to
December 1994. Mr. Flynn was a Senior Vice
President of WMX from May 1975 to January 1991.
James R. Peterson Director of WMX since 1980. Retired.
Business Address:
c/o WMX Technologies, Inc.
3003 Butterfield Road
Oak Brook, IL 60521
Howard H. Baker, Jr. Director of WMX since 1989 and has been a member
Business Address: of the law firm of Baker, Donelson, Bearman &
Baker, Donelson, Bearman & Caldwell for more than the past five years. From
Caldwell March 1987 to July 1988, Mr. Baker held the
Three Courthouse Square position of Chief of Staff to the President of the
P.O. Box 8 United States. Mr. Baker served three terms as a
Huntsville, TN 37756 member of the United States Senate from 1967 to
1985.
I-4
<PAGE>
Peter H. Huizenga Director of WMX since 1968 and President of
Business Address: Huizenga Capital Management, an investment
Huizenga Capital Management management firm, since October 1990. He has also
2215 York Road been of counsel to the law firm of Hlustik,
Suite 500 Huizenga & Williams for more than the past five
Oak Brook, IL 60521 years. From January 1, 1989 until December 31,
1993, Mr. Huizenga served as a consultant to the
Company.
Peer Pedersen Director of WMX since 1979 and Chairman of the
Business Address: Board of the law firm of Pedersen & Houpt, P.C.
Pedersen & Houpt, P.C. for more than the past five years.
161 North Clark Street
Suite 3100
Chicago, IL 60601-3224
I-5
<PAGE>
Facsimile copies of the Letter of Transmittal will be accepted. The Letter of
Transmittal, certificates for the Shares and any other required documents should
be sent by each stockholder of the Company or his broker, dealer, commercial
bank, trust company or other nominee to the Depositary as follows:
THE DEPOSITARY FOR THE OFFER IS:
HARRIS TRUST COMPANY OF NEW YORK
BY HAND BY OVERNIGHT COURIER BY MAIL
Receive Window 77 Water Street Wall Street Station
77 Water Street, Fifth Floor 4th Floor P.O. Box 1023
New York, NY 10005 New York, NY 10005 New York, NY 10268-1023
OTHER INFORMATION
BY FACSIMILE TELEPHONE NUMBERS
(212) 701-7636 For information call
(212) 701-7640 (212) 701-7624
Confirm by telephone
(212) 701-7624
Any questions or requests for assistance or additional copies of the Offer to
Purchase and the Letter of Transmittal may be directed to the Information Agent
at its respective telephone numbers and locations listed below. You may also
contact your broker, dealer, commercial bank or trust company or other nominee
for assistance concerning the Offer.
THE INFORMATION AGENT FOR THE OFFER IS:
MORROW & CO., INC.
909 Third Avenue, 20th Floor 14755 Preston Road, Suite 725
New York, New York 10022 Dallas, Texas 75240
(212) 754-8000 (214) 788-0977
(Call Collect) (Call Collect)
Banks & Brokers Call Toll Free 1-800-662-5200
All Others Call Toll Free 1-800-566-9058
<PAGE>
EXHIBIT (a)(2)
LETTER OF TRANSMITTAL
TO TENDER SHARES OF COMMON STOCK
OF
RESOURCE RECYCLING TECHNOLOGIES, INC.
PURSUANT TO THE OFFER TO PURCHASE DATED MARCH 23, 1995
BY
WMI ACQUISITION SUB, INC.
A WHOLLY OWNED SUBSIDIARY
OF
WASTE MANAGEMENT, INC.
|-----------------------------------------------------------------------------|
| THE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 12:00 MIDNIGHT, NEW YORK |
| CITY TIME, ON WEDNESDAY, APRIL 19, 1995, UNLESS THE OFFER IS EXTENDED |
|-----------------------------------------------------------------------------|
The Depositary for the Offer is:
HARRIS TRUST COMPANY OF NEW YORK
(212) 701-7624
(CALL FOR INFORMATION)
<TABLE>
<CAPTION>
By Mail: By Courier: By Hand:
<S> <C> <C>
RECEIVE WINDOW
WALL STREET STATION 77 WATER STREET 77 WATER STREET,
P.O. BOX 1023 4TH FLOOR FIFTH FLOOR
NEW YORK, NEW YORK 10268-1023 NEW YORK, NEW YORK 10005 NEW YORK, NEW YORK
</TABLE>
By Facsimile:
(212) 701-7636
(212) 701-7640
Confirm Facsimile by Telephone to:
(212) 701-7624
Delivery of this Letter of Transmittal to an address other than as set forth
above, or transmission of instructions via a facsimile number other than as
listed above, will not constitute a valid delivery.
Stockholders who have properly tendered Shares (as defined below) and not
validly withdrawn the tendered Shares and who wish to have those Shares
purchased pursuant to the Offer need not take any further action except for
complying with the procedure for guaranteed delivery if that procedure is being
used.
This Letter of Transmittal is to be completed by holders of Shares (as defined
below) either if certificates are to be forwarded herewith or if a tender of
Shares is to be made by book-entry transfer to the account maintained by Harris
Trust Company of New York (the "Depositary") at The Depository Trust Company
("DTC"), the Midwest Securities Trust Company ("MSTC"), or the Philadelphia
Depository Trust Company ("PDTC") (each a "Book-Entry Transfer Facility" and
collectively the "Book-Entry Transfer Facilities") pursuant to the procedures
set forth in Section 3 of the Offer to Purchase (as defined below). Holders of
Shares whose certificates are not immediately available, or who are unable to
deliver their certificates or confirmation of the book-entry tender of their
Shares into the Depositary's account at a Book-Entry Transfer Facility (a "Book-
Entry Confirmation") and all other documents required by this Letter of
Transmittal to the Depositary on or prior to the Expiration Date (as defined in
Section 1 of the Offer to Purchase), must tender their Shares according to the
guaranteed delivery procedure set forth in Section 3 of the Offer to Purchase.
See Instruction 2. Delivery of documents to a Book-Entry Transfer Facility does
not constitute delivery to the Depositary.
<PAGE>
NOTE: SIGNATURES MUST BE PROVIDED BELOW.
PLEASE READ THE ACCOMPANYING INSTRUCTIONS CAREFULLY
[_] CHECK HERE IF TENDERED SHARES ARE BEING DELIVERED BY BOOK-ENTRY TRANSFER
MADE TO THE ACCOUNT MAINTAINED BY THE DEPOSITARY WITH A BOOK-ENTRY TRANSFER
FACILITY AND COMPLETE THE FOLLOWING:
Name of Tendering Institution
----------------------------------------------
Check Box of applicable Book-Entry Transfer Facility:
[_] DTC [_] MSTC [_] PDTC
Account Number Transaction Code Number
----------------------- -------------
[_] CHECK HERE IF TENDERED SHARES ARE BEING DELIVERED PURSUANT TO A NOTICE OF
GUARANTEED DELIVERY PREVIOUSLY SENT TO THE DEPOSITARY AND COMPLETE THE
FOLLOWING:
Names of Registered Owners
-------------------------------------------------
Window Ticket Number (if any)
----------------------------------------------
Date of Execution of Notice of Guaranteed Delivery
-------------------------
IF DELIVERED BY BOOK-ENTRY TRANSFER, CHECK BOX OF APPLICABLE BOOK-ENTRY
TRANSFER FACILITY:
[_] DTC [_] MSTC [_] PDTC
Account Number Transaction Code Number
----------------------- -------------
- --------------------------------------------------------------------------------
DESCRIPTION OF SHARES TENDERED
- --------------------------------------------------------------------------------
NAMES AND ADDRESSES OF CERTIFICATES TENDERED
REGISTERED HOLDERS (ATTACH ADDITIONAL SIGNED LIST
(PLEASE FILL IN, IF BLANK) IF NECESSARY)
- --------------------------------------------------------------------------------
TOTAL NUMBER
OF SHARES NUMBER OF
CERTIFICATE EVIDENCED BY SHARES
NUMBERS* CERTIFICATES* TENDERED**
- --------------------------------------------------------------------------------
-----------------------------------------
-----------------------------------------
-----------------------------------------
-----------------------------------------
TOTAL SHARES
- --------------------------------------------------------------------------------
*Need not be completed by Book-Entry Stockholders.
**Unless otherwise indicated, it will be assumed that all Shares evidenced by
any certificate(s) delivered to the Depositary are being tendered. See
Instruction 4.
The names and addresses of the registered holders should be printed, if not
already printed above, exactly as they appear on the certificates representing
Shares tendered hereby. The certificates and the number of Shares that the
undersigned wishes to tender should be indicated in the appropriate boxes.
2
<PAGE>
NOTE: SIGNATURES MUST BE PROVIDED BELOW.
PLEASE READ THE ACCOMPANYING INSTRUCTIONS CAREFULLY.
Ladies and Gentlemen:
The undersigned hereby tenders to WMI Acquisition Sub, Inc., a Delaware
corporation (the "Purchaser") and a wholly owned subsidiary of Waste
Management, Inc., an Illinois corporation (the "Parent"), the above described
shares of common stock, par value $1.00 per share (the "Shares"), of Resource
Recycling Technologies, Inc., a Delaware corporation (the "Company"), pursuant
to Purchaser's offer to purchase all outstanding Shares at a price of $11.50
per Share, net to the seller in cash (the "Purchase Price"), upon the terms and
subject to the conditions set forth in the Offer to Purchase dated March 23,
1995 (the "Offer to Purchase"), receipt of which is hereby acknowledged, and in
accordance with this Letter of Transmittal (which together constitute the
"Offer").
Subject to, and effective upon, acceptance for payment of the Shares tendered
herewith in accordance with the terms and subject to the conditions of the
Offer, the undersigned hereby sells, assigns, and transfers to, or upon the
order of, the Purchaser all right, title, and interest in and to all Shares
tendered hereby (and any and all other shares, dividends, distributions,
rights, and other securities or property issued or issuable or distributed or
distributable in respect thereof on or after March 17, 1995 in respect of such
Shares (collectively "Distributions")) and irrevocably appoints the Depositary
the true and lawful agent and attorney-in-fact of the undersigned with respect
to such Shares (and any Distributions) with full power of substitution (such
power of attorney being deemed to be an irrevocable power coupled with an
interest) to (i) deliver certificates for such Shares (and any Distributions),
or transfer ownership of such Shares (and any Distributions) on the account
books maintained by a Book-Entry Transfer Facility, together in either such
case with all accompanying evidences of transfer and authenticity, to or upon
the order of the Purchaser, upon receipt by the Depositary, as the
undersigned's agent, of the Purchase Price, (ii) present such Shares (and any
Distributions) for registration and transfer on the books of the Company, and
(iii) receive all benefits and otherwise exercise all rights of beneficial
ownership of such Shares (and any Distributions), all in accordance with the
terms of the Offer.
The undersigned hereby irrevocably appoints Joseph M. Holsten and T. Michael
O'Brien, Jr., and each of them, or any other designees of the Purchaser,
attorneys-in-fact and proxies of the undersigned, each with full power of
substitution, to vote in such manner as each such attorney and proxy or the
substitute for any such attorney and proxy shall in the sole discretion of each
such attorney and proxy deem proper, and otherwise act (including pursuant to
written consent) with respect to all the Shares tendered hereby (and any
Distributions) which have been accepted for payment by the Purchaser prior to
the time of such vote or other action, which the undersigned is entitled to
vote at any meeting of stockholders (whether annual or special and whether or
not an adjourned meeting) of the Company, or otherwise. This power of attorney
and proxy is coupled with an interest in the Company and in the Shares and is
irrevocable and is granted in consideration of, and is effective upon, the
Purchaser's oral or written notice to the Depositary of its acceptance for
payment of such Shares in accordance with the terms of the Offer. Such
acceptance for payment shall revoke all prior powers of attorney and proxies
appointed by the undersigned at any time with respect to such Shares (and any
Distributions) and no subsequent powers of attorney or proxies may be given
(and if given will not be effective) with respect thereto by the undersigned.
The undersigned acknowledges that the Purchaser expressly reserves the right to
require that, in order for Shares to be deemed validly tendered, immediately
upon the acceptance for payment of such Shares (and any Distributions), the
Purchaser or the Purchaser's designee is able to exercise full voting and other
rights of a record and beneficial holder with respect to such Shares (and any
Distributions).
The undersigned hereby represents and warrants that: (i) the undersigned has
full power and authority to tender, sell, assign, and transfer the Shares (and
any Distributions) tendered hereby and (ii) when the same are accepted for
payment by the Purchaser, the Purchaser will acquire good, marketable, and
unencumbered title thereto, free and clear of all liens, restrictions, charges,
claims, and encumbrances, and the same will not be subject to any adverse
claim. The undersigned, upon request, will execute and deliver any signature
guarantee or additional documents deemed by the Depositary or the Purchaser to
be necessary or desirable to complete or confirm the sale, assignment, and
transfer of the Shares (and any Distributions) tendered hereby. In addition,
the undersigned shall promptly remit and transfer to the Depositary for the
account of the Purchaser any and all Distributions accompanied by
appropriate documentation of transfer, and, pending such remittance or
appropriate assurance thereof, the Purchaser shall be entitled to all rights
and privileges as owner of such Distributions and may withhold the entire
Purchase Price or deduct from the Purchase Price the amount or value thereof,
as determined by the Purchaser in its sole discretion.
3
<PAGE>
All authority conferred or agreed to be conferred by this Letter of
Transmittal shall not be affected by, and shall survive, the death or
incapacity of the undersigned, and any obligation of the undersigned hereunder
shall be binding upon the heirs, executors, administrators, trustees in
bankruptcy, personal and legal representatives, successors, and assigns of the
undersigned. Except as stated in the Offer to Purchase, this tender is
irrevocable, provided that Shares tendered pursuant to the Offer may be
withdrawn at any time prior to the Expiration Date.
The undersigned understands that the acceptance for payment of tendered
Shares pursuant to any of the procedures described in Section 3 of the Offer to
Purchase and in the instructions hereto will constitute a binding agreement
between the undersigned and the Purchaser upon the terms and subject to the
conditions of the Offer, including the undersigned's representation and
warranty that (i) the undersigned "owns" the Shares being tendered within the
meaning of Rule 14e-4 ("Rule 14e-4") promulgated under the Securities Exchange
Act of 1934, as amended (the "Exchange Act"), and (ii) the tender of such
Shares complies with Rule 14e-4. The undersigned recognizes that under certain
circumstances set forth in the Offer to Purchase, the Purchaser may not be
required to accept for payment any of the Shares tendered hereby.
Unless otherwise indicated herein under "Special Payment Instructions,"
please issue the check for the Purchase Price and/or return any certificates
for Shares not tendered or accepted for payment in the names of the
undersigned. Similarly, unless otherwise indicated under "Special Delivery
Instructions," please mail the check for the Purchase Price and/or return any
certificates for any Shares not tendered or accepted for payment (and
accompanying documents, as appropriate) to the undersigned at the address
appearing under "Description of Shares Tendered." In the event that both the
Special Delivery Instructions and the Special Payment Instructions are
completed, please issue the check for the Purchase Price and/or return any
certificates for Shares not tendered or accepted for payment in the name of,
and deliver said check and/or certificates to, the person or persons so
indicated. In the case of a book-entry delivery of Shares, please credit the
account maintained at the Book-Entry Transfer Facility indicated above with any
Shares not accepted for payment. The undersigned recognizes that the Purchaser
has no obligation pursuant to the Special Payment Instructions to transfer any
Shares from the name of the registered holder thereof if the Purchaser does not
accept for payment any of the Shares so tendered.
- -------------------------------------------------------------------------------
SPECIAL PAYMENT INSTRUCTIONS
(See Instructions 1, 5, 6, and 7)
To be completed ONLY if certificates for Shares not tendered or not accepted
for payment and/or the check for the Purchase Price of Shares accepted for
payment are to be issued in the name of someone other than the undersigned.
Issue check and/or certificate(s) to:
Name
--------------------------------------
(Please Type or Print)
Address
-----------------------------------
- -------------------------------------------
- -------------------------------------------
(Zip Code)
- -------------------------------------------
(Tax Identification or Social Security No.)
(Also complete Substitute Form W-9 below)
- -------------------------------------------------------------------------------
SPECIAL DELIVERY INSTRUCTIONS
(See Instructions 1, 5, 6, and 7)
To be completed ONLY if certificates for Shares not tendered or not accepted
for payment and/or the check for the Purchase Price of Shares accepted for
payment are to be sent to someone other than that shown above.
Mail check and/or certificate(s) to:
Name
--------------------------------------
(Please Type or Print)
Address
-----------------------------------
- -------------------------------------------
- -------------------------------------------
(Zip Code)
- -------------------------------------------------------------------------------
4
<PAGE>
- -------------------------------------------------------------------------------
IMPORTANT
STOCKHOLDERS SIGN HERE
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
Signatures of Stockholders
Dated: _______________________, 1995
(Must be signed by registered holders exactly as names appear on stock
certificates or on a security position listing or by persons authorized to
become registered holders by certificates and documents transmitted herewith.
If signature is by an officer of a corporation, attorney-in-fact, executor,
administrator, trustee, guardian, or other persons acting in a fiduciary or
representative capacity, please set forth full title and see Instruction 5.)
Names _________________________________________________________________________
(Please Print)
Capacity (full title) _________________________________________________________
Address _______________________________________________________________________
_______________________________________________________________________
(Zip Code)
Area Code and
Tel. No. ______________________________________________________________________
_______________________________________________________________________________
(Tax Identification or Social Security No.)
(Also complete Substitute Form W-9 below)
GUARANTEE OF SIGNATURES
(If Required--See Instructions 1 and 5)
Authorized Signature __________________________________________________________
Name __________________________________________________________________________
(Please Print)
Name of Firm __________________________________________________________________
Address _______________________________________________________________________
_______________________________________________________________________
(Zip Code)
Area Code and
Tel. No. ______________________________________________________________________
- -------------------------------------------------------------------------------
INSTRUCTIONS
FORMING PART OF THE TERMS AND CONDITIONS OF THE OFFER
1. GUARANTEE OF SIGNATURES. No signature guarantee on this Letter of
Transmittal is required if (i) this Letter of Transmittal is signed by the
registered holders of Shares (which term, for purposes of this document, shall
include any participant in a Book-Entry Transfer Facility whose name appears on
a security position listing as the owner of Shares) tendered herewith unless
such holders have completed either the box entitled "Special Delivery
Instructions" or "Special Payment Instructions" on this Letter of Transmittal,
or (ii) such Shares are tendered for the account of a firm or other entity
identified in rule 17Ad-15 under the Exchange Act, including (as such terms are
defined therein) any (a) bank, (b) broker, dealer, municipal securities dealer,
municipal securities broker, government securities dealer, or government
securities broker, (c) credit union, (d) national securities exchange,
registered securities association, or clearing agency, or (e) savings
association (in each case, an "Eligible
5
<PAGE>
Institution"). In all other cases, all signatures on this Letter of Transmittal
must be guaranteed by an Eligible Institution, acting in accordance with the
procedures set forth in such Rule, which is a member in good standing of the
Securities Transfer Agents Medallion Program. If the certificate is registered
in the name of a person other than the signer of this Letter of Transmittal,
the tendered certificate must be endorsed or accompanied by appropriate stock
powers signed exactly as the name or names of the registered owner or owners
appears on the certificate, with the signatures on the certificate or stock
powers guaranteed as aforesaid. See Instruction 5.
2. DELIVERY OF LETTER OF TRANSMITTAL AND CERTIFICATES. This Letter of
Transmittal is to be completed by stockholders either if certificates are to be
forwarded herewith or if tenders are to be made pursuant to the procedures for
delivery by book-entry transfer set forth in Section 3 of the Offer to
Purchase. Certificates for all physically tendered Shares, or Book-Entry
Confirmation, as the case may be, as well as a properly completed and duly
executed Letter of Transmittal (or manually signed facsimile hereof) or an
Agent's Message (in connection with book-entry transfer) and any other
documents required by this Letter of Transmittal, must be received by the
Depositary at one of its addresses set forth herein on or prior to the
Expiration Date, or the tendering stockholder must comply with the guaranteed
delivery procedures set forth below.
Stockholders whose certificates for Shares are not immediately available or
who cannot deliver their certificates and all other required documents to the
Depositary on or prior to the Expiration Date, or who cannot complete the
procedure for book-entry transfer on a timely basis, may tender their Shares
pursuant to the guaranteed delivery procedures set forth in Section 3 of the
Offer to Purchase. Pursuant to such procedures, (i) such tender must be made
by or through a member of a registered national securities exchange, a member
of the National Association of Securities Dealers, Inc. ("NASD"), or a
commercial bank or trust company having an office or correspondent in the
United States, (ii) a properly completed and duly executed Notice of Guaranteed
Delivery, substantially in the form provided by the Purchaser, must be received
by the Depositary, either by hand delivery, mail, telegram, or facsimile
transmission, on or prior to the Expiration Date, and (iii) the certificates
for all physically tendered Shares, in proper form for transfer, or Book-Entry
Confirmation, as the case may be, together with a properly completed and duly
executed Letter of Transmittal (or manually signed facsimile thereof), or, in
the case of book-entry transfer, an Agent's Message, and any other documents
required by this Letter of Transmittal, must be received by the Depositary
within five American Stock Exchange ("AMEX") trading days after the date of the
execution of the Notice of Guaranteed Delivery.
The term "Agent's Message" means a message, transmitted by a Book-Entry
Transfer Facility to, and received by, the Depositary and forming a part of a
Book-Entry Confirmation, which states that such Book-Entry Transfer Facility
has received an express acknowledgment from the participant in such Book-Entry
Transfer Facility tendering the Shares which are the subject of such Book-Entry
Confirmation that such participant has received and agrees to be bound by the
terms of this Letter of Transmittal and that the Purchaser may enforce such
agreement against such participant.
THE METHOD OF DELIVERY OF THIS LETTER OF TRANSMITTAL, THE CERTIFICATES FOR
SHARES, AND ALL OTHER REQUIRED DOCUMENTS IS AT THE OPTION AND RISK OF THE
TENDERING STOCKHOLDER. IF DELIVERY IS BY MAIL, REGISTERED MAIL WITH RETURN
RECEIPT REQUESTED, PROPERLY INSURED, IS RECOMMENDED. AMPLE TIME SHOULD BE
ALLOWED FOR SUCH DOCUMENTS TO REACH THE DEPOSITARY. EXCEPT AS OTHERWISE
PROVIDED IN THIS INSTRUCTION 2, DELIVERY WILL BE DEEMED MADE ONLY WHEN ACTUALLY
RECEIVED BY THE DEPOSITARY.
No alternative, conditional, or contingent tenders will be accepted and no
fractional Shares will be purchased. All tendering stockholders, by execution
of this Letter of Transmittal (or facsimile thereof), waive any right to
receive any notice of the acceptance of their Shares for payment.
3. INADEQUATE SPACE. If the space provided herein is inadequate, the
certificate numbers and/or the number of Shares should be listed on a separate
signed schedule attached hereto.
4. PARTIAL TENDERS. (Not applicable to stockholders who tender by book-
entry transfer.) If fewer than all the Shares evidenced by any certificate
submitted are to be tendered, fill in the number of Shares that are to be
tendered in the box entitled "Number of Shares Tendered." In such case, new
certificates for the remainder of the shares that were evidenced by old
certificates will be sent to the registered holder, unless otherwise provided
in the appropriate box on this Letter of Transmittal, as soon as practicable
after the Expiration Date. All Shares represented by certificates delivered to
the Depositary will be deemed to have been tendered unless otherwise indicated.
6
<PAGE>
5. SIGNATURES ON LETTER OF TRANSMITTAL, STOCK POWERS, AND ENDORSEMENTS. If
this Letter of Transmittal is signed by the registered owners of the Shares
tendered hereby, the signatures must correspond to the names as written on the
face of the certificates without alteration, enlargement, or any change
whatsoever.
If any of the Shares tendered hereby are held of record by two or more joint
owners, all such owners must sign this Letter of Transmittal.
If any of the Shares tendered hereby are registered in different names on
several certificates, it will be necessary to complete, sign, and submit as
many separate Letters of Transmittal as there are different registrations of
certificates.
If this Letter of Transmittal or any certificate or stock power is signed by
a trustee, executor, administrator, guardian, attorney-in-fact, agent, officer
of a corporation, or other person acting in a fiduciary or representative
capacity, such person should so indicate when signing, and proper evidence
satisfactory to the Purchaser of such person's authority to so act must be
submitted.
When this Letter of Transmittal is signed by the registered owners of the
Shares listed and transmitted hereby, no endorsements of certificates or
separate stock powers are required unless payment is to be made, or
certificates for Shares not tendered or purchased are to be issued, to a person
other than the registered owners in which case signatures on such certificates
or stock powers must be guaranteed by an Eligible Institution which is a member
in good standing of the Securities Transfer Agents Medallion Program.
If this Letter of Transmittal is signed other than by the registered owners
of the certificates listed, the certificates must be endorsed or accompanied by
appropriate stock powers, in either case signed exactly as the name or names of
the registered owners appear on the certificates and signatures on such
certificates or stock powers are required, and must be guaranteed by an
Eligible Institution which is a member in good standing of the Securities
Transfer Agents Medallion Program, unless the signature is that of an Eligible
Institution which is a member in good standing of the Securities Transfer
Agents Medallion Program.
6. SPECIAL PAYMENT AND DELIVERY INSTRUCTIONS. If a check and/or
certificates for unpurchased or untendered Shares are to be issued in the name
of a person other than the signer of this Letter of Transmittal, or if a check
is to be sent and/or such certificates are to be returned to someone other than
the signer of this Letter of Transmittal or to an address other than that shown
above, the appropriate boxes on this Letter of Transmittal should be completed.
If no such instructions are given, such Shares not purchased will be returned
by crediting the account at the Book-Entry Transfer Facility designated above.
7. STOCK TRANSFER TAXES. Except as set forth in this Instruction 7, the
Purchaser will pay or cause to be paid any stock transfer taxes with respect to
the transfer and sale of the purchased Shares to it, or to its order, pursuant
to the Offer. If payment of the Purchase Price is to be made to, or if
certificates for Shares not tendered or purchased are to be registered in the
name of, any persons other than the registered owners, or if tendered
certificates are registered in the name of any persons other than the persons
signing this Letter of Transmittal, the amount of any stock transfer taxes
(whether imposed on the registered owner or such other person) payable on
account of the transfer to such other person will be deducted from the Purchase
Price unless satisfactory evidence of the payment of such taxes or exemption
therefrom is submitted.
Except as provided in this Instruction 7, it will not be necessary for
transfer tax stamps to be affixed to the certificates listed in this Letter of
Transmittal.
8. WAIVER OF CONDITIONS. The conditions of the Offer (other than the
Minimum Condition (as defined in the Offer to Purchase), without the Company's
prior written consent) may be waived by Purchaser, in whole or in part, at any
time and from time to time in Purchaser's sole discretion, in the case of any
Shares tendered.
9. SUBSTITUTE FORM W-9. Each tendering stockholder (or other payee) is
required to provide the Depositary with a correct taxpayer identification
number ("TIN"), generally the stockholder's social security or federal employer
identification number, and with certain other information, on Substitute Form
W-9, which is provided under "Important Tax Information" below, and to certify
that the stockholder (or other payee) is not subject to backup withholding.
Failure to provide the information on the Substitute Form W-9 may subject the
tendering stockholder (or other payee) to 31% federal income tax withholding on
the payment of the Purchase Price. The box in Part 3 of the Substitute Form W-
9 may be checked if the tendering stockholder (or other payee) has not been
7
<PAGE>
issued a TIN and has applied for a TIN or intends to apply for a TIN in the
near future. If the box in Part 3 is checked and the Depositary is not
provided with a TIN by the time of payment, the Depositary will withhold 31% on
all such payments of the Purchase Price until a TIN is provided to the
Depositary.
10. REQUESTS FOR ASSISTANCE OR ADDITIONAL COPIES. Requests for assistance
may be directed to the Information Agent at the addresses set forth below.
Additional copies of the Offer to Purchase, this Letter of Transmittal, the
Notice of Guaranteed Delivery, and the Guidelines for Certification of Taxpayer
Identification Number on Substitute Form W-9 may be obtained from the
Information Agent at the addresses set forth below or from your broker, dealer,
commercial bank, trust company, or other nominee.
IMPORTANT: THIS LETTER OF TRANSMITTAL (OR A MANUALLY EXECUTED FACSIMILE
HEREOF), TOGETHER WITH CERTIFICATES OR CONFIRMATION OF BOOK-ENTRY TRANSFER AND
ALL OTHER REQUIRED DOCUMENTS OR THE NOTICE OF GUARANTEED DELIVERY, MUST BE
RECEIVED BY THE DEPOSITARY ON OR PRIOR TO THE EXPIRATION DATE.
IMPORTANT TAX INFORMATION
Under federal income tax law, a stockholder whose tendered Shares are
accepted for payment is required to provide the Depositary with such
stockholder's current TIN on Substitute Form W-9 below. If such stockholder is
an individual, the TIN is the stockholder's social security number. If the
Depositary is not provided with the correct TIN, the stockholder or other payee
may be subject to a penalty imposed by the Internal Revenue Service. In
addition, payments that are made to such stockholder or other payee with
respect to Shares purchased pursuant to the Offer may be subject to 31% backup
withholding.
Certain stockholders (including, among others, all corporations and certain
foreign individuals) are not subject to these backup withholding and reporting
requirements. In order for a foreign individual to qualify as an exempt
recipient, that stockholder must submit to the Depositary a statement, signed
under penalties of perjury, attesting to that individual's exempt status. Such
statements can be obtained from the Depositary or the Information Agent. See
the enclosed "Guidelines for Certification of Taxpayer Identification Number on
Substitute Form W-9" for additional instructions.
If backup withholding applies, the Depositary is required to withhold 31% of
any payment made to the stockholder or other payee. Backup withholding is not
an additional federal income tax. Rather, the federal income tax liability of
persons subject to backup withholding will be reduced by the amount of such tax
withheld. If backup withholding results in an overpayment of taxes, a refund
may be obtained from the Internal Revenue Service.
PURPOSE OF SUBSTITUTE FORM W-9
To prevent backup withholding on payments made to a stockholder or other
payee with respect to Shares purchased pursuant to the Offer, the stockholder
is required to notify the Depositary of the stockholder's current TIN (or the
TIN of any other payee) by completing the form below, certifying that the TIN
provided on Substitute Form W-9 is correct (or that such stockholder is
awaiting a TIN), and that (1) the stockholder has not been notified
by the Internal Revenue Service that the stockholder is subject to backup
withholding as a result of failure to report all interest or dividends or (2)
the Internal Revenue Service has notified the stockholder that the stockholder
is no longer subject to backup withholding.
WHAT NUMBER TO GIVE THE DEPOSITARY
The stockholder is required to give the Depositary the TIN (e.g., social
security number or employer identification number) of the record owner of the
Shares. If the Shares are registered in more than one name or are not
registered in the name of the actual owner, consult the enclosed "Guidelines
for Certification of Taxpayer Identification Number on Substitute Form W-9,"
for additional guidance on which number to report.
8
<PAGE>
- --------------------------------------------------------------------------------
PAYER'S NAME: HARRIS TRUST COMPANY OF NEW YORK
- --------------------------------------------------------------------------------
SUBSTITUTE
FORM W-9
Department of the
Treasury
Internal Revenue
Service
Payer's Request for Taxpayer
Identification Number ("TIN")
Part 1--PLEASE PROVIDE YOUR TIN IN
THE BOX AT RIGHT AND CERTIFY BY
SIGNING AND DATING BELOW
Social security number(s)
OR
-----------------------------------
Employer Identification Number(s)
- --------------------------------------------------------------------------------
Part 2--Certificates--Under penalties of perjury, I certify that:
(1) The number shown on this form is my correct taxpayer identification number
(or I am waiting for a number to be issued for me), and
(2) I am not subject to backup withholding because: (a) I am exempt from backup
withholding, or (b) I have not been notified by the Internal Revenue Service
(IRS) that I am subject to backup withholding as a result of a failure to
report all interest or dividends, or (c) the IRS has notified me that I am
no longer subject to backup withholding.
Certification Instructions--You must cross out item (2) above if you have
been notified by the IRS that you are currently subject to backup
withholding because of underreporting interest or dividends on your tax
return.
- --------------------------------------------------------------------------------
SIGNATURE DATE
-------------------- ----------------
Part 3--
Awaiting TIN [_]
- --------------------------------------------------------------------------------
NOTE: FAILURE TO COMPLETE AND RETURN THIS FORM MAY RESULT IN BACKUP
WITHHOLDING OF 31% OF ANY PAYMENTS MADE TO YOU PURSUANT TO THE OFFER.
PLEASE REVIEW THE ENCLOSED GUIDELINES FOR CERTIFICATION OF TAXPAYER
IDENTIFICATION NUMBER ON SUBSTITUTE FORM W-9 FOR ADDITIONAL DETAILS.
YOU MUST COMPLETE THE FOLLOWING CERTIFICATE IF YOU CHECKED THE BOX IN
PART 3 OF THE SUBSTITUTE FORM W-9.
- --------------------------------------------------------------------------------
CERTIFICATE OF AWAITING TAXPAYER IDENTIFICATION NUMBER
I certify under penalties of perjury that a taxpayer identification number has
not been issued to me, and either (1) I have mailed or delivered an application
to receive a taxpayer identification number to the appropriate Internal Revenue
Service Center or Social Security Administration Office or (2) I intend to mail
or deliver an application in the near future. I understand that if I do not
provide a taxpayer identification number by the time of payment, 31% of all
payments of the Purchase Price made to me thereafter will be withheld until I
provide a number.
Signature Date
------------------------------------------------ ---------------
Questions and requests for assistance or additional copies of the Offer to
Purchase, the Letter of Transmittal, and other tender offer materials may be
directed to the Information Agent as set forth below.
The Information Agent for the Offer is:
MORROW & CO., INC.
909 Third Avenue, 20th Floor 14755 Preston Road, Suite 725
New York, New York 10022 Dallas, Texas 75240
(212) 754-8000 (214) 788-0977
(Call Collect) (Call Collect)
Banks & Brokers Call Toll Free: 1-800-662-5200
All Others Call Toll Free: 1-800-566-9058
9
<PAGE>
EXHIBIT (a)(3)
NOTICE OF GUARANTEED DELIVERY
FOR
TENDER OF SHARES OF COMMON STOCK
OF
RESOURCE RECYCLING TECHNOLOGIES, INC.
(NOT TO BE USED FOR SIGNATURE GUARANTEES)
As set forth in the Offer to Purchase (as defined below), this form, or one
substantially equivalent hereto, must be used to accept the Offer (as defined
below) if certificates for shares of the common stock, par value $1.00 per share
(the "Shares"), of Resource Recycling Technologies, Inc., a Delaware corporation
(the "Company"), are not immediately available or if the procedure for book-
entry transfer cannot be completed on a timely basis or if time will not permit
all required documents to reach the Depositary on or prior to the Expiration
Date (as defined in Section 1 of the Offer to Purchase). Such form may be
delivered by hand or transmitted by telegram, facsimile transmission, or mail to
Harris Trust Company of New York (the "Depositary"). See Section 3 of the Offer
to Purchase.
The Depositary for the Offer is:
HARRIS TRUST COMPANY OF NEW YORK
(212) 701-7624
(CALL FOR INFORMATION)
By Mail: By Courier: By Hand:
RECEIVE WINDOW
WALL STREET STATION 77 WATER STREET 77 WATER STREET,
P. O. BOX 1023 4TH FLOOR FIFTH FLOOR
NEW YORK, NEW YORK 10268-1023 NEW YORK, NEW YORK 10005 NEW YORK, NEW YORK
By Facsimile:
(212) 701-7636
(212) 701-7640
Confirm Facsimile by Telephone to:
(212) 701-7624
___________________
DELIVERY OF THIS INSTRUMENT TO AN ADDRESS OTHER THAN AS SET FORTH ABOVE, OR
TRANSMISSION OF INSTRUCTIONS VIA FACSIMILE OTHER THAN AS SET FORTH ABOVE, WILL
NOT CONSTITUTE A VALID DELIVERY.
This form is not to be used to guarantee signatures. If a signature on a
Letter of Transmittal is required to be guaranteed by an "Eligible Institution"
under the instructions thereto, such signature guarantee must appear in the
applicable space provided in the signature box on the Letter of Transmittal.
<PAGE>
Ladies and Gentlemen:
The undersigned hereby tenders to WMI Acquisition Sub, Inc., a Delaware
corporation and a wholly owned subsidiary of Waste Management, Inc., an Illinois
corporation, upon the terms and subject to the conditions set forth in its Offer
to Purchase dated March 23, 1995 (the "Offer to Purchase") and the related
Letter of Transmittal (which together constitute the "Offer"), receipt of which
is hereby acknowledged, the number of shares of common stock, par value $1.00
per share (the "Shares"), of Resource Recycling Technologies, Inc., a Delaware
corporation, indicated below pursuant to the guaranteed delivery procedures set
forth in Section 3 of the Offer to Purchase.
Number of Shares________________________
Names of Record Holders_________________ Signatures___________________________
________________________________________ _____________________________________
Please Type or Print
Addresses______________________________ Dated__________________________, 1995
_______________________________________ If Shares will be delivered by book-
Zip Code entry transfer, check one box and
provide account number.
[_] The Depository Trust Company
Certificate No. for Shares [_] Midwest Securities Trust Company
(if available) [_] Philadelphia Depository Trust
Company
_______________________________________ Account Number______________________
_______________________________________
GUARANTEE
(NOT TO BE USED FOR SIGNATURE GUARANTEE)
The undersigned, a member firm of a registered national securities exchange, a
member of the National Association of Securities Dealers, Inc. or a commercial
bank or trust company having an office or correspondent in the United States
(each, a "Guaranteeing Institution"), hereby (i) represents that the above-named
persons are deemed to own the Shares tendered hereby within the meaning of Rule
14e-4 promulgated under the Securities Exchange Act of 1934, as amended ("Rule
14e-4"), (ii) represents that such tender of Shares complies with Rule 14e-4,
and (iii) guarantees that either the certificates representing the Shares
tendered hereby in proper form for transfer, or timely confirmation of the book
entry transfer of such Shares into the Depositary's account at The Depository
Trust Company, the Midwest Securities Trust Company, or the Philadelphia
Depository Trust Company (pursuant to the procedures set forth in Section 3 of
the Offer to Purchase), together with a properly completed and duly executed
Letter of Transmittal (or manually signed facsimile thereof) with any required
signature guarantee, or an Agent's Message (in connection with book-entry
transfer), and any other documents required by the Letter of Transmittal, will
be received by the Depositary at one of its addresses set forth above within
five trading days after the date of execution hereof.
The Guaranteeing Institution's failure to communicate the guarantee to the
Depositary or to cause the Depositary to receive the above-described items
within the time period specified herein could result in a financial loss to such
Guaranteeing Institution.
Name of Firm:__________________________ Title:_______________________________
Authorized Signature___________________ Address:_____________________________
(Zip Code)
_______________________________________ Area Code and Telephone Number:
_____________________________________
NOTE: DO NOT SEND SHARE CERTIFICATES WITH THIS FORM. SHARE CERTIFICATES SHOULD
ONLY BE SENT WITH YOUR LETTER OF TRANSMITTAL.
2
<PAGE>
EXHIBIT (a)(4)
OFFER TO PURCHASE FOR CASH
ALL OUTSTANDING SHARES OF COMMON STOCK
OF
RESOURCE RECYCLING TECHNOLOGIES, INC.
AT
$11.50 NET PER SHARE OF COMMON STOCK
BY
WMI ACQUISITION SUB, INC.
A WHOLLY OWNED SUBSIDIARY OF
WASTE MANAGEMENT, INC.
- -------------------------------------------------------------------------------
THE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 12:00 MIDNIGHT,
NEW YORK CITY TIME, ON WEDNESDAY, APRIL 19, 1995,
UNLESS THE OFFER IS EXTENDED
- -------------------------------------------------------------------------------
March 23, 1995
To Brokers, Dealers, Commercial Banks,
Trust Companies, and other Nominees:
We have been appointed by WMI Acquisition Sub, Inc., a Delaware corporation
(the "Purchaser") and a wholly owned subsidiary of Waste Management, Inc., an
Illinois corporation, to act as Information Agent in connection with the
Purchaser's offer to purchase for cash all outstanding shares of Common Stock,
par value $1.00 per share (the "Shares"), of Resource Recycling Technologies,
Inc., a Delaware corporation (the "Company"), at $11.50 per share, net to the
seller in cash, upon the terms and subject to the conditions set forth in the
Purchaser's Offer to Purchase dated March 23, 1995 (the "Offer to Purchase") and
the related Letter of Transmittal (which together constitute the "Offer").
THE OFFER IS CONDITIONED UPON, AMONG OTHER THINGS, THE SATISFACTION OF THE
MINIMUM CONDITION, AS DEFINED IN THE OFFER TO PURCHASE.
For your information and for forwarding to your clients for whom you hold
shares registered in your name or in the name of your nominee, or who hold
shares registered in their own names, we are enclosing the following documents:
1. The Offer to Purchase;
2. A Letter of Transmittal to be used by stockholders in accepting the
Offer;
3. A letter to the stockholders of the Company from the Chairman of the
Board and the President and Chief Executive Officer of the Company, together
with a Solicitation/Recommendation Statement on Schedule 14D-9 filed by the
Company;
4. A printed form of a letter which may be sent to your clients for whose
account you hold Shares in your name or in the name of a nominee with space
provided for obtaining such clients' instructions with regard to the Offer;
5. The Notice of Guaranteed Delivery to be used to accept the Offer if
certificates for Shares are not immediately available or cannot be delivered
to Harris Trust Company of New York (the "Depositary") by the Expiration Date
(as defined in the Offer to Purchase) or if the procedure for book-entry
transfer cannot be completed by the Expiration Date;
<PAGE>
6. Guidelines of the Internal Revenue Service for Certification of a
Taxpayer Identification Number on Substitute Form W-9; and
7. A return envelope addressed to the Depositary.
WE URGE YOU TO CONTACT YOUR CLIENTS PROMPTLY. PLEASE TAKE NOTE THAT THE OFFER
AND WITHDRAWAL RIGHTS WILL EXPIRE AT 12:00 MIDNIGHT, NEW YORK CITY TIME, ON
WEDNESDAY, APRIL 19, 1995, UNLESS THE OFFER IS EXTENDED.
Upon the terms and subject to the conditions of the Offer (including, if the
Offer is extended or amended, the terms and conditions of any such extensions or
amendment), the Purchaser will be deemed to have accepted for payment (and
thereby purchased), and will pay for, all Shares validly tendered prior to the
Expiration Date and not properly withdrawn if, as, and when the Purchaser gives
oral or written notice to the Depositary of the Purchaser's acceptance of such
Shares for payment pursuant to the Offer. In all cases, payment for Shares
purchased pursuant to the Offer will be made only after timely receipt by the
Depositary of certificates evidencing such Shares, or timely confirmation of a
book-entry transfer of such Shares into the Depositary's account at The
Depository Trust Company, the Midwest Securities Trust Company, or the
Philadelphia Depository Trust Company, pursuant to the procedures described in
Section 3 of the Offer to Purchase, a properly completed and duly executed
Letter of Transmittal (or facsimile thereof), or an Agent's Message (in
connection with book-entry transfer), and any other documents required by the
Letter of Transmittal.
The term "Agent's Message" means a message, transmitted by a Book-Entry
Transfer Facility to, and received by, the Depositary and forming a part of a
Book-Entry Confirmation, which states that such Book-Entry Transfer Facility has
received an express acknowledgment from the participant in such Book-Entry
Transfer Facility tendering the Shares which are the subject of such Book-Entry
Confirmation that such participant has received and agrees to be bound by the
terms of the Letter of Transmittal and that the Purchaser may enforce such
agreement against such participant.
The Purchaser will pay any transfer taxes applicable to the sale and transfer
of Shares to it or its order, except as otherwise set forth in Instruction 7 of
the Letter of Transmittal. The Purchaser will not pay any commission or fee to
any broker or dealer or other person (other than to the Depositary or the
Information Agent, as described in the Offer to Purchase) in connection with the
solicitation of tenders of Shares pursuant to the Offer. The Purchaser will,
however, upon request, reimburse brokers, dealers, commercial banks, trust
companies, and other nominees for their reasonable and necessary costs incurred
in forwarding the Offer to Purchase and the related documents to the beneficial
owners of Shares held by them as nominee or in a fiduciary capacity. If holders
of Shares wish to tender, but it is impracticable for them to forward their
certificates or other required documents prior to the expiration of the Offer,
a tender may be effected by following the guaranteed delivery procedure
described in Section 3 of the Offer to Purchase.
Additional copies of the enclosed material may be obtained from, and any
inquires you may have with respect to the Offer should be addressed to, the
undersigned at the respective addresses and telephone numbers set forth on the
back cover page of the Offer to Purchase.
Very truly yours,
Morrow & Co., Inc.
NOTHING CONTAINED HEREIN OR IN THE ENCLOSED DOCUMENTS SHALL RENDER YOU OR ANY
OTHER PERSON THE AGENT OF THE PURCHASER, PARENT, THE COMPANY, THE DEPOSITARY, OR
THE INFORMATION AGENT, OR AUTHORIZE YOU TO MAKE ANY STATEMENT OR USE ANY
DOCUMENT ON BEHALF OF ANY OF THEM IN CONNECTION WITH THE OFFER OTHER THAN THE
ENCLOSED DOCUMENTS AND THE STATEMENTS CONTAINED THEREIN.
Enclosures
<PAGE>
EXHIBIT (a)(5)
OFFER TO PURCHASE FOR CASH
ALL OUTSTANDING SHARES OF COMMON STOCK
OF
RESOURCE RECYCLING TECHNOLOGIES, INC.
AT
$11.50 NET PER SHARE OF COMMON STOCK
BY
WMI ACQUISITION SUB, INC.
A WHOLLY OWNED SUBSIDIARY OF
WASTE MANAGEMENT, INC.
- -------------------------------------------------------------------------------
THE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 12:00 MIDNIGHT, NEW YORK CITY
TIME, ON WEDNESDAY, APRIL 19, 1995, UNLESS THE OFFER IS EXTENDED
- -------------------------------------------------------------------------------
To Our Clients:
Enclosed for your consideration is an Offer to Purchase dated March 23, 1995
(the "Offer to Purchase") and the related Letter of Transmittal (which, together
with the Offer to Purchase, constitute the "Offer") relating to an offer by WMI
Acquisition Sub, Inc., a Delaware corporation (the "Purchaser") and a wholly
owned subsidiary of Waste Management, Inc., an Illinois corporation, to purchase
for cash all outstanding shares of Common Stock, par value $1.00 per share (the
"Shares"), of Resource Recycling Technologies, Inc., a Delaware corporation. We
are the holder of record of Shares held by us for your account. A tender of
such Shares can be made only by us as the holder of record and pursuant to your
instructions. The Letter of Transmittal is furnished to you for your
information only and cannot be used by you to tender Shares.
We request instructions as to whether you wish to tender any or all of such
Shares held by us for your account pursuant to the terms and conditions set
forth in the Offer.
Your attention is directed to the following:
1. The tender price is $11.50 per Share, net to the seller in cash, upon
the terms and subject to the conditions set forth in the Offer.
2. The Offer and withdrawal rights will expire at 12:00 midnight, New York
City time, on Wednesday, April 19, 1995, unless the Offer is extended.
3. The Offer is conditioned upon, among other things, the satisfaction of
the Minimum Condition, as defined in the Offer to Purchase.
4. The Offer is being made for all outstanding Shares.
5. Stockholders who tender Shares will not be obligated to pay brokerage
fees or commissions or, except as set forth in Instruction 7 of the Letter of
Transmittal, transfer taxes on the purchase of Shares by the Purchaser
pursuant to the Offer.
<PAGE>
6. The Board of Directors of the Company has unanimously determined that
each of the Offer and the Merger (as defined in the Offer to Purchase) is fair
to, and in the best interests of, the stockholders of the Company, and
recommends that stockholders accept the Offer.
If you wish to have us tender any or all of your Shares, please so instruct us
by completing, executing, and returning to us the instruction form set forth
below. An envelope to return your instructions to us is enclosed. Please
forward your instructions to us in ample time to permit us to submit a tender on
your behalf prior to the expiration of the Offer. If you authorize tender of
your Shares, all such Shares will be tendered unless otherwise specified in your
instruction.
INSTRUCTIONS TO HOLDER OF RECORD WITH RESPECT TO
OFFER TO PURCHASE SHARES OF COMMON STOCK
OF
RESOURCE RECYCLING TECHNOLOGIES, INC.
The undersigned acknowledge(s) receipt of your letter and the enclosed Offer
to Purchase dated March 23, 1995 and the related Letter of Transmittal (which,
together with the Offer to Purchase, constitute the "Offer") relating to an
offer by WMI Acquisition Sub, Inc., a Delaware corporation and a wholly owned
subsidiary of Waste Management, Inc., an Illinois corporation, to purchase all
outstanding shares of Common Stock, $1.00 par value (the "Shares"), of Resource
Recycling Technologies, Inc., a Delaware corporation.
This will instruct you to tender the number of Shares indicated below (or, if
no number is indicated below, all Shares) held by you for the account of the
undersigned, on the terms and subject to the conditions set forth in the Offer.
Number of Shares SIGN HERE
To Be Tendered __________________________________________
_______ Shares* __________________________________________
Signature(s)
__________________________________________
__________________________________________
Dated: ___________________, 1995
__________________________________________
Please print name(s) and
address(es) here
__________________________________________
Area Code
Telephone Number
__________________________________________
Taxpayer Identification
or
Social Security Number
- -------------
* Unless otherwise indicated, it will be assumed that all of your Shares held
by us for your account are to be tendered.
<PAGE>
EXHIBIT (a)(6)
GUIDELINES FOR CERTIFICATION OF TAXPAYER IDENTIFICATION
NUMBER ON SUBSTITUTE FORM W-9
GUIDELINES FOR DETERMINING THE PROPER IDENTIFICATION TO GIVE THE PAYER.--Social
Security numbers have nine digits separated by two hyphens: i.e. 000-00-0000.
Employer identification numbers have nine digits separated by only one hyphen:
i.e. 00-0000000. The table below will help determine the number to give the
payer.
<TABLE>
<CAPTION>
- ------------------------------------------------------------ --------------------------------------------------------------------
GIVE THE GIVE THE EMPLOYER
FOR THIS TYPE OF ACCOUNT: SOCIAL SECURITY FOR THIS TYPE OF ACCOUNT: IDENTIFICATION
NUMBER OF-- NUMBER OF--
- ------------------------------------------------------------ --------------------------------------------------------------------
<S> <C> <C> <C>
1. An individual's account The individual 9. A valid trust, estate, or pension The legal entity (Do
trust not furnish the
2. Two or more individuals (joint The actual owner of identifying number of
account) the account or, if the personal
combined funds, any representative or
one of the trustee unless the
individuals(1) legal entity itself is not
designated in the
3. Husband and wife (joint account) The actual owner of account title.)(5)
the account or, if
joint funds, either 10. Corporate account The corporation
person(1)
11. Religious, charitable, or The organization
4. Custodian account of a minor The minor(2) educational organization account
(Uniform Gift to Minors Act)
12. Partnership account held in the The partnership
5. Adult and minor (joint account) The adult or, if the name of the business
minor is the only
contributor, the 13. Association, club, or other tax- The organization
minor(1) exempt organization
6. Account in the name of guardian The ward, minor, or 14. A broker or registered nominee The broker or
or committee for a designated incompetent nominee
ward, minor, or incompetent person(3)
person 15. Account with the Department of The public entity
Agriculture in the name of a
7 a. The usual revocable savings The grantor-trustee(1) public entity (such as a State or
trust account (grantor is also local government, school district,
trustee) or prison) that receives
agricultural program payments
b. So-called trust account that is The actual owner(1)
not a legal or valid trust under
State law
8. Sole proprietorship account The owner(4)
- ------------------------------------------------------------ --------------------------------------------------------------------
</TABLE>
(1) List first and circle the name of the person whose number you furnish.
(2) Circle the minor's name and furnish the minor's social security number.
(3) Circle the ward's, minor's, or incompetent person's name and furnish such
person's social security number.
(4) Show the name of the owner.
(5) List first and circle the name of the legal trust, estate, or pension
trust.
NOTE: If no name is circled when there is more than one name, the number will
be considered to be that of the first name listed.
<PAGE>
GUIDELINES FOR CERTIFICATION OF TAXPAYER IDENTIFICATION
NUMBER ON SUBSTITUTE FORM W-9
Page 2
OBTAINING A NUMBER
If you don't have a taxpayer identification number or you don't know your
number, obtain Form SS-5, Application for a Social Security Number Card, or Form
SS-4, Application for Employer Identification Number, at the local office of the
Social Security Administration or the Internal Revenue Service and apply for a
number.
PAYEES EXEMPT FROM BACKUP WITHHOLDING
Payees specifically exempted from backup withholding on ALL payments include the
following:
. A corporation.
. A financial institution.
. An organization exempt from tax under section 501(a), or an individual
retirement plan.
. The United States or any agency or instrumentality thereof.
. A State, the District of Columbia, a possession of the United States, or any
subdivision or instrumentality thereof.
. A foreign government, a political subdivision of a foreign government, or
any agency or instrumentality thereof.
. An international organization or any agency or instrumentality thereof.
. A registered dealer in securities or commodities registered in the U.S. or a
possession of the U.S.
. A real estate investment trust.
. A common trust fund operated by a bank under section 584(a)
. An exempt charitable remainder trust, or a non-exempt trust described in
section 4947(a)(1).
. An entity registered at all times under the Investment Company Act of 1940.
. A foreign central bank of issue.
Payments of dividends and patronage dividends not generally subject to backup
withholding include the following:
. Payments to nonresident aliens subject to withholding under section 1441.
. Payments to partnerships not engaged in a trade or business in the U.S. and
which have at least one nonresident partner.
. Payments of patronage dividends where the amount received is not paid in
money.
. Payments made by certain foreign organizations.
. Payments made to a nominee.
Payments of interest not generally subject to backup withholding include the
following:
. Payments of interest on obligations issued by individuals. Note: You may
be subject to backup withholding if this interest is $600 or more and is
paid in the course of the payer's trade or business and you have not
provided your correct taxpayer identification number to the payer.
. Payments of tax-exempt interest (including exempt-interest dividends under
section 852).
. Payments described in section 6049(b)(5) to non-resident aliens.
. Payments on tax-free covenant bonds under section 1451.
. Payments made by certain foreign organizations.
. Payments made to a nominee.
Exempt payees described above should file Form W-9 to avoid possible erroneous
backup withholding. FILE THIS FORM WITH THE PAYER, FURNISH YOUR TAXPAYER
IDENTIFICATION NUMBER, WRITE "EXEMPT" ON THE FACE OF THE FORM, AND RETURN IT TO
THE PAYER. IF THE PAYMENTS ARE INTEREST, DIVIDENDS, OR PATRONAGE DIVIDENDS,
ALSO SIGN AND DATE THE FORM.
Certain payments other than interest, dividends, and patronage dividends, that
are not subject to information reporting are also not subject to backup
withholding. For details, see the regulations under section 6041, 6041A(a),
6045, and 6050A.
PRIVACY ACT NOTICE.--Section 6109 requires most recipients of dividend,
interest, or other payments to give taxpayer identification numbers to payers
who must report the payments to IRS. IRS uses the numbers for identification
purposes. Payers must be given the numbers whether or not recipients are
required to file tax returns. Payers must generally withhold 31% of taxable
interest, dividend, and certain other payments to a payee who does not furnish a
taxpayer identification number to a payer. Certain penalties may also apply.
PENALTIES
(1) PENALTY FOR FAILURE TO FURNISH TAXPAYER IDENTIFICATION NUMBER.--If you fail
to furnish your taxpayer identification number to a payer, you are subject to a
penalty of $50 for each such failure unless your failure is due to reasonable
cause and not to willful neglect.
(2) FAILURE TO REPORT CERTAIN DIVIDEND AND INTEREST PAYMENTS.--If you fail to
include any portion of an includible payment for interest, dividends, or
patronage dividends in gross income, such failure will be treated as being due
to negligence and will be subject to a penalty of 5% on any portion of an under-
payment attributable to that failure unless there is clear and convincing
evidence to the contrary.
(3) CIVIL PENALTY FOR FALSE INFORMATION WITH RESPECT TO WITHHOLDING.--If you
make a false statement with no reasonable basis which results in no imposition
of backup withholding, you are subject to a penalty of $500.
(4) CRIMINAL PENALTY FOR FALSIFYING INFORMATION--Falsifying certifications or
affirmations may subject you to criminal penalties including fines and/or
imprisonment.
FOR ADDITIONAL INFORMATION CONTACT YOUR TAX CONSULTANT OR THE INTERNAL REVENUE
SERVICE
<PAGE>
EXHIBIT (a)(7)
This announcement is neither an offer to purchase nor a solicitation of an offer
to sell Shares. The Offer is made solely by the Offer to Purchase dated March
23, 1995 and the related Letter of Transmittal and is not being made to, nor
will tenders be accepted from or on behalf of, holders of Shares in any
jurisdiction in which the making of the Offer or the acceptance thereof would
not be in compliance with the laws of such jurisdiction. In any jurisdiction
where the securities, blue sky, or other laws require the Offer to be made by a
licensed broker or dealer, the Offer will be deemed to be made on behalf of the
Purchaser by one or more registered brokers or dealers licensed under the laws
of such jurisdiction.
NOTICE OF OFFER TO PURCHASE FOR CASH
ALL OUTSTANDING SHARES OF COMMON STOCK
OF
RESOURCE RECYCLING TECHNOLOGIES, INC.
AT
$11.50 NET PER SHARE
BY
WMI ACQUISITION SUB, INC.
A WHOLLY OWNED SUBSIDIARY OF
WASTE MANAGEMENT, INC.
WMI Acquisition Sub, Inc., a Delaware corporation (the "Purchaser") and a
wholly owned subsidiary of Waste Management, Inc. (the "Parent"), is offering to
purchase all outstanding shares of Common Stock, par value $1.00 (the "Shares"),
of Resource Recycling Technologies, Inc., a Delaware corporation (the
"Company"), at $11.50 per Share, net to the seller in cash, upon the terms and
subject to the conditions set forth in the Offer to Purchase dated March 23,
1995 (the "Offer to Purchase") and in the related Letter of Transmittal (which
together constitute the "Offer").
THE OFFER AND WITHDRAWAL RIGHTS EXPIRE AT 12:00 MIDNIGHT, NEW YORK CITY
TIME, ON WEDNESDAY, APRIL 19, 1995, UNLESS THE OFFER IS EXTENDED.
The Offer is conditioned upon, among other things, there being validly
tendered by the Expiration Date (as defined in the Offer to Purchase) and not
withdrawn that number of Shares representing 50.1% or more of the total number
of Shares that would be outstanding if all outstanding rights to acquire Shares
were exercised (the "Minimum Condition"). See Section 13 of the Offer to
Purchase for certain other conditions.
The Offer is also subject to certain other conditions set forth in the Offer
to Purchase. If any condition is not satisfied, the Purchaser may, subject to
the terms of an Agreement and Plan of Merger dated March 17, 1995 (the "Merger
Agreement"), by and among the Company, the Purchaser and the Parent, (i)
terminate the Offer and return all tendered Shares to tendering stockholders,
(ii) extend the Offer and, subject to withdrawal rights as set forth below,
retain all such Shares until the expiration of the Offer as so extended, (iii)
waive such condition and, subject to any requirement to extend the time during
which the Offer is open, purchase all Shares validly tendered prior to the
Expiration Date and not withdrawn, or (iv) delay acceptance for payment or
payment for Shares, subject to applicable law, until satisfaction or waiver of
the conditions to the Offer. Any extension by the Purchaser of the period of
time during which the Offer is open will be made by giving oral or written
notice of such extension to Harris Trust Company of New York (the "Depositary").
Any such extension will be followed as promptly as practicable by public
announcement thereof.
The purpose of the Offer is to acquire control of, and the entire equity
interest in, the Company. The Offer is being made pursuant to the Merger
Agreement, which provides that if Shares are purchased pursuant to the Offer,
and subject to certain other conditions, a merger will be effected (the
"Merger") whereby the Company will become a wholly owned subsidiary of the
Parent and each Share (other than Shares held in the treasury of the Company or
owned by the Parent or any of its corporate affiliates or Shares owned by
stockholders who have perfected dissenters' rights) outstanding immediately
before the effectiveness of the Merger will be converted into a right to receive
an amount in cash equal to the cash price per Share paid pursuant to the Offer.
See the Introduction and Section 11 of the Offer to Purchase.
THE BOARD OF DIRECTORS OF THE COMPANY HAS UNANIMOUSLY APPROVED THE OFFER AND
THE MERGER, HAS DETERMINED THAT THE OFFER AND THE MERGER ARE FAIR TO AND IN THE
BEST INTERESTS OF THE STOCKHOLDERS OF THE COMPANY, AND RECOMMENDS THAT
STOCKHOLDERS ACCEPT THE OFFER.
For purposes of the Offer, the Purchaser shall be deemed to have accepted for
payment tendered Shares when, as, and if the Purchaser gives oral or written
notice to the Depositary of its acceptance of the tenders of such Shares.
Payment for Shares accepted for payment pursuant to the Offer will be made only
after timely receipt by the Depositary of certificates for such Shares (or a
confirmation of a book-entry transfer of such Shares into the Depositary's
account at one of the Book-Entry Transfer Facilities (as defined in the Offer to
Purchase)), a properly completed and duly executed Letter of Transmittal (or
facsimile thereof) or an Agent's Message, and any other required documents.
Tenders of Shares made pursuant to the Offer may be withdrawn at any time
prior to the Expiration Date. Thereafter, such tenders are irrevocable, except
that they may be withdrawn after May 22, 1995 unless theretofore accepted for
payment as provided in the Offer to Purchase. To be effective, a written,
telegraphic, or facsimile transmission notice of withdrawal must be timely
received by the Depositary at one of its
<PAGE>
addresses set forth in the Offer to Purchase and must specify the name of the
person who tendered the Shares to be withdrawn and the number of Shares to be
withdrawn. If the Shares to be withdrawn have been delivered to the Depositary,
a signed notice of withdrawal with (except in the case of Shares tendered by an
Eligible Institution (as defined in the Offer to Purchase)) signatures
guaranteed by an Eligible Institution, which is a participant in good standing
in the Security Transfer Agents Medallion Program, must be submitted prior to
the release of such Shares. In addition, such notice must specify, in the case
of Shares tendered by delivery of certificates, the name of the registered
holder (if different from that of the tendering stockholder) and the serial
numbers shown on the particular certificates evidencing the Shares to be
withdrawn or, in the case of Shares tendered by book-entry transfer, the name
and number of the account at one of the Book-Entry Transfer Facilities to be
credited with the withdrawn Shares.
The information required to be disclosed by Rule 14d-6(e)(1)(vii) of the
General Rules and Regulations under the Securities Exchange Act of 1934, as
amended, is contained in the Offer to Purchase and is incorporated herein by
reference.
The Company has agreed to furnish the Purchaser with a copy of its stockholder
list and security position listings for the purpose of disseminating the Offer
to holders of Shares. The Offer to Purchase and the related Letter of
Transmittal will be mailed to record holders of Shares and will be furnished to
brokers, banks, and similar persons whose names, or the names of whose nominees,
appear on the stockholder list or, if applicable, who are listed as participants
in a clearing agency's security position listing for subsequent transmittal to
beneficial owners of Shares. The Offer to Purchase and Letter of Transmittal
contain important information which should be read before any decision is made
with respect to the Offer.
Requests for copies of the Offer to Purchase and the related Letter of
Transmittal and other tender offer materials may be directed to the Information
Agent as set forth below, and copies will be furnished promptly at the
Purchaser's expense.
The Information Agent is:
MORROW & CO., INC.
909 3rd Avenue, 20th Floor 14755 Preston Road, Suite 725
New York, NY 10022 Dallas, TX 75240
(212) 754-8000 (214) 788-0977
(Call Collect) (Call Collect)
Banks & Brokers Call Toll Free 1-800-662-5200
All Others Call Toll Free 1-800-566-9058
March 23, 1995
<PAGE>
EXHIBIT (a)(8)
WASTE MANAGEMENT, INC.
3003 Butterfield Road
Oak Brook, Illinois 60521
(708) 572-8800
for further information contact:
Analyst Contact: Media Contact: RRT Contact:
Jim Koenig Chris Combs Lawrence J. Schorr
708-572-8822 708-572-3074 607-798-7137, ext. 223
WASTE MANAGEMENT, INC. AGREES TO ACQUIRE
RESOURCE RECYCLING TECHNOLOGIES, INC.
Oak Brook, Illinois, and Vestal, New York, March 17, 1995 -- Waste
Management, Inc. and Resource Recycling Technologies, Inc. jointly announced
today that they have signed a definitive agreement pursuant to which WMI has
agreed to commence a tender offer for any and all outstanding shares of common
stock of RRT at a price of $11.50 net per share in cash. On March 16, 1995, the
closing sale price for RRT on the American Stock Exchange composite tape was
$8.375 per share.
The offer will be subject to certain conditions including, among other
things, the tender of a minimum of 50.1 percent of the outstanding shares of RRT
(assuming the exercise of all outstanding stock options and warrants and the
conversion of all convertible securities) and the termination or expiration of
applicable waiting periods under the Hart-Scott-Rodino Antitrust Improvements
Act. If the conditions to the offer are met, the tender offer will be followed
by a merger in which non-tendering stockholders will receive the right to obtain
$11.50 net per share in cash. RRT has approximately 2,675,773 shares, options
and warrants to purchase 573,863 shares, and securities convertible into 6,509
shares outstanding. Stockholders beneficially owning approximately 33 percent of
the shares on a fully diluted basis have agreed to tender their shares.
WMI said the offer would be made only by an Offer to Purchase and related
Letter of Transmittal, copies of which will first be mailed to RRT's
stockholders on or about March 23, 1995.
RRT owns and/or operates several material recycling facilities primarily in
the northeast and one in Florida. The company also designs and manages
construction of solid waste recycling facilities and systems and provides
processing and administrative services to regional retailers and beverage
wholesalers subject to the New York State Bottle Bill. For 1994, RRT reported
revenues of $41,793.000.
Waste Management, Inc., a subsidiary of WMX Technologies, Inc., is the
nation's leading provider of recycling and integrated solid waste management
services in North America. The Company provides recycling services to 6.4
million households in 860 communities and serves more than 119,000 commercial
customers. WMI also operates 120 material recovery facilities.
####
<PAGE>
EXHIBIT (a)(9)
WASTE MANAGEMENT, INC.
3003 Butterfield Road
Oak Brook, Illinois 60521
(708) 572-8800
for further information contact:
Analyst Contact: Media Contact: RRT Contact:
Bruce Tobecksen Chris Combs Lawrence J. Schorr
708-572-8968 708-572-3074 607-798-7137, ext. 223
WMX TECHNOLOGIES' WASTE MANAGEMENT UNIT COMMENCES
TENDER OFFER FOR RESOURCE RECYCLING TECHNOLOGIES, INC.
Oak Brook, Illinois, and Vestal, New York, March 23, 1995 -- Waste Management,
Inc., the North American solid waste services unit of WMX Technologies, Inc.,
and Resource Recycling Technologies, Inc. jointly announced today that a wholly
owned Waste Management subsidiary has commenced a tender offer for any and all
outstanding shares of common stock of RRT at a price of $11.50 net per share in
cash. On March 22, 1995, the closing sale price for RRT on the American Stock
Exchange composite tape was $11.25 per share.
The offer will be subject to certain conditions including, among other things,
the tender of a minimum of 50.1 percent of the outstanding shares of RRT
(assuming the exercise of all outstanding rights to acquire common stock) and
the termination or expiration of applicable waiting periods under the Hart-
Scott-Rodino Antitrust Improvements Act. Unless extended, the tender offer will
expire at 12:00 midnight, New York City time, on April 19, 1995. If the
conditions to the offer are met, the tender offer will be followed by a merger
in which non-tendering stockholders will receive the right to obtain $11.50 net
per share in cash. RRT has approximately 2,675,773 shares, and rights to
acquire an additional 580,372 shares, outstanding. Stockholders beneficially
owning approximately 33 percent of the shares on a fully diluted basis have
agreed to tender their shares.
WMI said the offer would be made only by an Offer to Purchase and related
Letter of Transmittal, copies of which will first be mailed to RRT's
stockholders on or about March 23, 1995. Morrow & Co., Inc. is acting as the
Information Agent for the offer. Copies of the Offer to Purchase and the Letter
of Transmittal can be obtained from, and questions concerning the offer can be
directed to, Morrow & Co., Inc.
RRT owns and/or operates several material recycling facilities primarily in
the northeast and one in Florida. The company also designs and manages
construction of solid waste recycling facilities and systems and provides
processing and administrative services to regional retailers and beverage
wholesalers subject to the New York State Bottle Bill.
Waste Management, Inc. is the leading provider of recycling and integrated
solid waste management services in North America.
####
<PAGE>
EXHIBIT (c)(1)
AGREEMENT AND PLAN OF MERGER
March 17, 1995
WASTE MANAGEMENT, INC.
WMI ACQUISITION SUB, INC.
RESOURCE RECYCLING TECHNOLOGIES, INC.
<PAGE>
TABLE OF CONTENTS
Page
----
1. The Offer................................................................ 1
1.1 General............................................................. 1
1.2 Company Actions..................................................... 3
1.3 Directors; Section 14(f)............................................ 4
2. The Merger and Related Matters........................................... 4
2.1 The Merger.......................................................... 4
2.2 Conversion of Stock................................................. 5
2.3 Dissenting Shares................................................... 5
2.4 Payment............................................................. 6
2.5 No Further Rights or Transfers...................................... 7
2.6 Certificate of Incorporation of the Surviving Corporation........... 8
2.7 By-Laws of the Surviving Corporation................................ 8
2.8 Directors and Officers of the Surviving Corporation................. 8
2.9 Closing............................................................. 8
2.10 Stock Options, Warrants and Convertible Securities.................. 8
2.11 Special Meeting..................................................... 9
2.12 Merger Without Meeting of Stockholders.............................. 9
3. Representations and Warranties........................................... 9
3.1 Representations and Warranties of the Company....................... 9
3.2 Representations and Warranties of the Parent and the Sub............ 9
4. Covenants................................................................ 11
4.1 Disclosure Documents................................................ 11
4.2 Access to Information Concerning Properties and Records............. 11
4.3 Confidentiality..................................................... 11
4.4 Interim Operations of the Company................................... 12
4.5 Consents............................................................ 13
4.6 No Solicitation..................................................... 13
4.7 Filings............................................................. 14
4.8 All Reasonable Efforts.............................................. 14
4.9 Public Announcements................................................ 14
4.10 Notification of Certain Matters..................................... 14
4.11 Directors' and Officers' Indemnification............................ 14
4.12 Expenses............................................................ 15
5. Conditions to Consummation of the Merger................................. 15
5.1 Conditions to Each Party's Obligation to Effect the Merger.......... 15
5.2 Additional Condition to Obligations of the Parent and the
Sub to Effect the Merger.......................................... 15
i
<PAGE>
6. Termination.............................................................. 16
6.1 Termination......................................................... 16
6.2 Notice and Effect of Termination.................................... 17
6.3 Extension; Waiver................................................... 17
6.4 Amendment and Modification.......................................... 17
7. Miscellaneous............................................................ 17
7.1 Fees................................................................ 17
7.2 Survival of Representations and Warranties.......................... 18
7.3 Notices............................................................. 18
7.4 Entire Agreement; Assignment........................................ 19
7.5 Binding Effect; Benefit............................................. 19
7.6 Headings............................................................ 19
7.7 Counterparts........................................................ 19
7.8 Governing Law....................................................... 20
7.9 Severability........................................................ 20
7.10 Certain Definitions................................................. 20
ANNEX A......................................................................A-1
ANNEX B......................................................................B-1
ii
<PAGE>
AGREEMENT AND PLAN OF MERGER
March 17, 1995
The parties to this Agreement and Plan of Merger are Waste Management,
Inc., an Illinois corporation (the "Parent"), WMI Acquisition Sub, Inc., a
Delaware corporation, and a wholly-owned subsidiary of the Parent (the "Sub"),
and Resource Recycling Technologies, Inc., a Delaware corporation (the
"Company").
The parties wish to provide for the merger of the Sub with and into
the Company on the terms and conditions set forth in this agreement.
Accordingly, the parties agree as follows:
1. The Offer.
1.1 General.
(a) As promptly as practicable (but in no event later than five
business days after the date of this Agreement), the Parent shall cause the Sub
to commence (within the meaning of Rule 14d-2 under the Securities Exchange Act
of 1934, as amended (the "Exchange Act") an offer (the "Offer") to purchase all
the outstanding shares of common stock, par value $1.00 per share (the "Company
Common Stock"), of the Company at a price of $11.50 per share, net to the seller
in cash (the "Offer Price"), and, subject to the conditions of the Offer, shall
use all reasonable efforts to consummate the Offer as promptly as permitted by
law. The obligation of the Parent and the Sub to consummate the Offer and to
accept for payment and to pay for any shares of Company Common Stock tendered
pursuant to the Offer (i) shall be subject to the condition that such number of
shares of Company Common Stock shall have been validly tendered and not
withdrawn prior to the expiration date of the Offer that, together with the
shares of Company Common Stock beneficially owned by the Parent and any
affiliate of the Parent on that date, constitute more than 50.1% of Company
Common Stock, assuming exercise and conversion of all outstanding options and
convertible securities of the Company (the "Minimum Condition") and (ii) shall
be subject to the other conditions set forth in Annex A to this Agreement.
(b) Neither the Parent nor the Sub shall, without the consent of the
Company, waive the Minimum Condition. Otherwise, the conditions of the Offer
are for the sole benefit of the Sub and the Parent regardless of the
circumstances giving rise to the non-fulfillment of any such conditions and may
be waived by the Sub and the Parent in whole or in part. The Company agrees
that no shares of Company Common Stock held by the Company shall be tendered
pursuant to the Offer. Parent and Sub may modify the terms of the Offer, except
that, without the consent of the Company, they shall not (i) reduce the number
of shares of Company Common Stock to be purchased in the Offer, (ii) reduce the
Offer Price, (iii) modify or add to the conditions set forth in Annex A, (iv)
except as provided in the next sentence, extend the Offer, (v) change the form
of consideration payable in the Offer, or (vi) amend any other term of the
<PAGE>
Offer in a manner adverse to the holders of Company Common Stock.
Notwithstanding the foregoing, Parent and Sub may, without the consent of the
Company, (i) extend the Offer beyond any scheduled expiration date (the initial
scheduled expiration date being 20 business days following commencement of the
Offer) for a period not to exceed 20 business days, if at any scheduled
expiration date of the Offer, any of the conditions to Sub's obligation to
accept for payment, and pay for, shares of Company Common Stock shall not be
satisfied or waived, until such time as such conditions are satisfied or waived,
(ii) extend the Offer for any period required by any rule, regulation,
interpretation or position of the Securities and Exchange Commission (the "SEC")
or the staff thereof applicable to the Offer, and (iii) extend the Offer for an
aggregate period of not more than 15 business days beyond the latest expiration
date that would otherwise be permitted under clause (i) or (ii) of this sentence
if there shall not have been tendered sufficient shares of Company Common Stock
so that the Merger could be effected as provided in Section 2.12. Subject to the
terms and conditions of the Offer and this Agreement, Sub shall, and Parent
shall cause Sub to, accept for payment, and pay for, all shares of Company
Common Stock validly tendered and not withdrawn pursuant to the Offer that Sub
becomes obligated to accept for payment, and pay for, pursuant to the Offer as
soon as practicable after expiration of the Offer.
(c) As soon as practicable on the date of commencement of the Offer,
the Sub shall file with the SEC a Tender Offer Statement on Schedule 14D-1 with
respect to the Offer, which will contain the offer to purchase and form of the
related letter of transmittal (which, together with any supplements or
amendments to those documents, are collectively referred to as the "Offer
Documents"). The Sub and the Parent shall cause the Offer Documents to comply
in all material respects with the provisions of applicable federal securities
laws and, on the date filed with the SEC and on the date first published, sent
or given to the Company's stockholders, not to 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 (except that neither the
Parent nor the Sub shall be responsible with respect to information supplied by
the Company in writing for inclusion in the Offer Documents). Each of the
Parent, the Sub and the Company shall promptly correct any information provided
by it for use or used in the Offer Documents, if and to the extent such
information shall have become false or misleading in any material respect, and
the Sub and the Parent shall take all steps necessary to cause the Offer
Documents as so corrected to be filed with the SEC and to be disseminated to
holders of shares of Company Common Stock, in each case as and to the extent
required by applicable federal securities laws. The Company and its counsel
shall be given a reasonable opportunity to review and comment upon the Offer
Documents and all amendments and supplements thereto prior to their filing with
the SEC or dissemination to stockholders of the Company. Parent and Sub agree
to provide the Company and its counsel any comments Parent, Sub or their counsel
may receive from the SEC or its staff with respect to the Offer Documents
promptly after the receipt of such comments and shall provide the Company and
its counsel an opportunity to participate, including by way of discussion with
the SEC or its staff, in the response of Parent and/or Sub to such comments.
2
<PAGE>
(d) Parent shall provide or cause to be provided to Sub on a timely
basis the funds necessary to accept for payment, and pay for, any shares of
Company Common Stock that Sub accepts for payment, and becomes obligated to pay
for, pursuant to the Offer.
1.2 Company Actions. The Company hereby consents to the Offer and
represents and warrants to the Parent and the Sub that its board of directors
(at a meeting duly called and held) has unanimously (i) determined that as of
the date of such meeting the Offer and the Merger (as defined in Section 2.1(a))
are fair to, and in the best interests of, the Company's stockholders, (ii)
approved this Agreement and the transactions contemplated by this Agreement,
including the Offer, the Stock Tender Agreements (as defined in Section 21 of
Annex A) and the Merger, and (iii) resolved, subject to its fiduciary duties
under applicable law, to recommend acceptance of the Offer and approval and
adoption of this Agreement and the Merger by the stockholders of the Company.
The Company shall file with the SEC contemporaneously with the commencement of
the Offer a Solicitation/Recommendation Statement on Schedule 14D-9 (the
"Schedule 14D-9") containing that recommendation in favor of the Offer and the
Merger. The Company shall cause the Schedule 14D-9 to comply in all material
respects with the provisions of applicable federal securities laws. The Company
shall cause the Schedule 14D-9, on the date filed with the SEC and on the date
first published, sent or given to the Company's stockholders, not to contain any
untrue statement of a material fact or to 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
(except that the Company shall not be responsible with respect to information
supplied by the Parent or the Sub in writing for inclusion in the Schedule 14D-
9). The Company shall take all steps necessary to cause the Schedule 14D-9 to
be filed with the SEC and mailed to the Company's stockholders to the extent
required by applicable federal securities laws. The Company shall include in
the Schedule 14D-9, on the date first published, sent or given to the Company's
stockholders, such information with respect to the Company's officers and
directors as is required under Section 14(f) of the Exchange Act and Rule 14f-1
thereunder in order to fulfill its obligations under Section 1.3. The Parent
and the Sub shall supply the Company with, and be solely responsible for, any
information with respect to themselves and their nominees, officers, directors
and affiliates required by Section 14(f) and Rule 14f-1. Each of the Company,
Parent and Sub agrees promptly to correct any information provided by it for use
in the Schedule 14D-9 if and to the extent that such information shall have
become false or misleading in any material respect, and the Company further
agrees to take all steps necessary to amend or supplement the Schedule 14D-9 and
to cause the Schedule 14D-9 as so amended or supplemented to be filed with the
SEC and disseminated to the Company's stockholders, in each case as and to the
extent required by applicable federal securities laws. Parent and its counsel
shall be given a reasonable opportunity to review and comment upon the Schedule
14D-9 and all amendments and supplements thereto prior to their filing with the
SEC or dissemination to stockholders of the Company. The Company agrees to
provide Parent and its counsel with any comments the Company or its counsel may
receive from the SEC or its staff with respect to the Schedule 14D-9 promptly
after the receipt of such comments and shall provide Parent and its counsel an
opportunity to participate, including by way of discussions with the SEC or its
staff, in the response of the Company to such comments. In connection with the
Offer, the Company shall promptly furnish the Sub with mailing labels, security
position listings and any available listing or computer file containing the
names and addresses of the record
3
<PAGE>
holders of the Company Common Stock as of a recent date, and shall furnish the
Sub with such information and assistance as the Sub or its agents may reasonably
request in communicating the Offer to the stockholders of the Company. Subject
to the requirements of law, and except for such steps as are necessary to
disseminate the documents constituting the Offer and any other documents
necessary to consummate the Merger, the Parent and the Sub shall, and shall
cause each of their affiliates and associates to, hold in confidence the
information contained in any such labels, lists and other documents, to use such
information only in connection with the Offer and the Merger, and, if this
Agreement is terminated, to deliver to the Company all copies of such
information then in their possession.
1.3 Directors; Section 14(f). Promptly upon the purchase by the Parent or
the Sub of at least a majority of the outstanding shares of Company Common Stock
and from time to time thereafter, the Parent and the Sub shall be entitled to
designate such number of directors, rounded up to the next whole number but in
no event more than one less than the total number directors of the board of
directors of the Company as will give the Parent and the Sub, subject to
compliance with Section 14(f) of the Exchange Act, representation on the board
of directors of the Company equal to the product of the number of directors on
the board of directors of the Company and the percentage that such number of
shares of Company Common Stock so purchased bears to the number of shares of
Company Common Stock outstanding, and the Company shall, upon request by the
Parent and the Sub, promptly increase the size of the board of directors of the
Company or exercise all reasonable efforts to secure the resignations of such
number of directors as is necessary to enable the Parent's and the Sub's
designees to be elected to the board of directors of the Company and shall cause
such designees to be so elected. At the request of the Parent and the Sub, the
Company shall take, at its expense, all action necessary to effect any such
election, including mailing to its stockholders the information required by
Section 14(f) of the Exchange Act and Rule 14f-1 thereunder. From and after the
date that such designees to the board of directors of the Company constitute a
majority of the board of directors of the Company, any action taken by the
Company under Section 5 or 6 of this Agreement shall require the approval of a
majority of the members of the board of directors, if any, who are not designees
or affiliates of the Parent and the Sub.
2. The Merger and Related Matters.
2.1 The Merger.
(a) Upon the terms and conditions of this Agreement, at the Effective
Time (as defined in Section 2.1(b)), the Sub shall be merged with and into the
Company (the "Merger") in accordance with the provisions of the General
Corporation Law of the State of Delaware (the "GCL") and the separate corporate
existence of the Sub shall cease, and the Company shall continue as the
surviving corporation under the laws of the State of Delaware with its current
corporate name (the "Surviving Corporation").
(b) The Merger shall become effective at the time of filing of a
certificate of merger with the Secretary of State of the State of Delaware in
accordance with the provisions of Section 251 of the GCL (the "Certificate of
Merger"), or at the time specified as the effective
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time in the Certificate of Merger (it being understood that such specified
effective time shall be within a reasonable period, not to exceed five business
days, after the date the Certificate of Merger is filed). The Certificate of
Merger shall be filed at the time of the Closing Date (as defined in Section
2.9). The date and time when the Merger shall become effective is referred to as
the "Effective Time."
(c) The separate corporate existence of the Company, as the Surviving
Corporation, with all its purposes, objects, rights, privileges, powers,
certificates and franchises, shall continue unimpaired by the Merger. At the
Effective Time, the separate corporate existence of the Sub shall cease and the
Surviving Corporation shall succeed to all the properties and assets of the
Company and the Sub and to all the debts, choses in action and other interests
due or belonging to the Company and the Sub and shall be subject to, and
responsible for, all the debts, liabilities and duties of the Company with the
effect set forth under the GCL.
2.2 Conversion of Stock. At the Effective Time:
(a) Each share of Company Common Stock then issued and outstanding
(other than Dissenting Shares (as defined in Section 2.3) and any shares of
Company Common Stock held by the Parent or the Sub or any corporate affiliate of
either of them) shall, by virtue of the Merger and without any action on the
part of the holder thereof, be converted into and represent the right to
receive, and shall be exchangeable for, the highest price paid pursuant to the
Offer, subject to applicable withholding or back-up withholding taxes, if any,
payable to the holder thereof, without any interest thereon (the "Merger
Consideration"), upon surrender of the certificates representing such shares of
Company Common Stock.
(b) Each share of common stock of the Sub (the "Sub Common Stock")
then issued and outstanding shall, by virtue of the Merger and without any
action on the part of the holder thereof, be converted into and become one fully
paid and nonassessable share of common stock of the Surviving Corporation, which
thereafter will constitute all of the issued and outstanding shares of common
stock of the Surviving Corporation.
(c) Each share of Company Common Stock then held in the treasury of
the Company shall, by virtue of the Merger, be cancelled without payment of any
consideration therefor and without any conversion thereof.
(d) Each share of Company Common Stock then held by the Sub or the
Parent (or any corporate affiliate of either of them) shall, by virtue of the
Merger and without any action on the part of the holder thereof, be cancelled
without payment of any consideration therefor and without any conversion
thereof.
2.3 Dissenting Shares. Notwithstanding anything in this Agreement to the
contrary, none of the shares of Company Common Stock that are outstanding
immediately prior to the Effective Time and that are held by stockholders (other
than the Parent or the Sub or any corporate affiliate of either of them) who
shall not have voted those shares of Company Common Stock in favor of the Merger
and who are entitled by applicable Delaware law to appraisal rights, and who
shall have delivered a written demand for appraisal of those shares of Company
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Common Stock in the manner provided in Section 262 of the GCL ("Dissenting
Shares") shall be converted into the right to receive, or be exchangeable for,
the Merger Consideration; however, (a) if any holder of Dissenting Shares shall
subsequently deliver a written withdrawal of his demand for appraisal of those
shares of Company Common Stock (with the written approval of the Company, if
such withdrawal is not tendered within 60 days after the Effective Time), or (b)
if any holder fails to establish his entitlement to appraisal rights as provided
in Section 262 of the GCL or (c) if neither any holder of Dissenting Shares nor
the Surviving Corporation has filed a petition demanding a determination of the
value of all Dissenting Shares within the time provided in Section 262 of the
GCL, such holder or holders shall forfeit the right to appraisal of those shares
of Company Common Stock and each such share shall thereupon be deemed to have
been converted into the right to receive, and to have become exchangeable for,
as of the Effective Time, the Merger Consideration.
2.4 Payment.
(a) Prior to the Effective Time, the Parent and the Sub shall
designate a bank or trust company reasonably acceptable to the Company to act as
exchange agent in the Merger (the "Exchange Agent"). At or immediately prior to
the Effective Time, the Parent and the Sub shall take all steps necessary to
provide the Exchange Agent with funds necessary to make the payments
contemplated by Section 2.2.
(b) Promptly after the Effective Time, the Surviving Corporation shall
cause the Exchange Agent to mail to each record holder, as of the Effective
Time, of a certificate or certificates that, immediately prior to the Effective
Time, represented outstanding shares of Company Common Stock (each, a
"Certificate"), a form of letter of transmittal (which shall specify that
delivery shall be effected, and risk of loss and title to a Certificate shall
pass, only upon proper delivery of a Certificate to the Exchange Agent) and
instructions for use in effecting the surrender of the Certificate and payment
therefor. Upon surrender to the Exchange Agent of a Certificate, together with
the letter of transmittal duly executed, the holder of the Certificate shall be
entitled to receive in exchange therefor an amount equal to the product of the
number of shares of Company Common Stock represented by the Certificate
multiplied by the amount of the Merger Consideration and the Certificate shall
then be cancelled. No interest will be paid or accrued on the cash payable upon
the surrender of the Certificate. If payment is to be made to a person other
than a person in whose name the surrendered Certificate is registered, it shall
be a condition of payment that the Certificate so surrendered shall be properly
endorsed or otherwise in proper form for transfer and that the person requesting
payment shall pay any transfer or other taxes required by reason of the payment
to a person other than the registered holder of the surrendered Certificate or
establish to the satisfaction of the Surviving Corporation that the tax has been
paid or is not applicable. The Exchange Agent may invest any cash deposited
with it as the Surviving Corporation directs; however, substantially all such
investments shall be in obligations of or guaranteed by the United States of
America, in commercial paper obligations receiving the highest rating from
either Moody's Investors Service, Inc. or Standard and Poor's Corporation, or in
certificates of deposit, bank repurchase agreements or bankers' acceptances of
commercial banks with capital exceeding $100,000,000 (collectively, "Permitted
Investments") or in money market funds invested solely in Permitted Investments,
and the maturities of
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Permitted Investments shall be such as to permit the Exchange Agent to make
prompt payment of the Merger Consideration to former stockholders of the Company
entitled thereto. Any net profit resulting from, or interest or income produced
by, Permitted Investments shall be payable to the Surviving Corporation. In the
event that at any time there shall be a net loss from such investments, the
Surviving Corporation shall immediately pay over to the Exchange Agent
additional funds in an amount sufficient to make all payments contemplated by
Section 2.2 of this Agreement. At any time after the 180th day following the
Effective Time, the Surviving Corporation shall be entitled to require the
Exchange Agent to deliver to it any funds (including any interest received with
respect thereto) that have been made available to the Exchange Agent for the
purpose of paying the Merger Consideration to holders of Company Common Stock
and that have not been disbursed to holders of Certificates, and thereafter
those holders shall be entitled to look to the Surviving Corporation (subject to
abandoned property, escheat or other similar laws) only as general creditors of
the Surviving Corporation with respect to the cash payable upon due surrender of
their Certificates. The Surviving Corporation shall pay all charges and
expenses, including those of the Exchange Agent, in connection with the exchange
of cash for shares of Company Common Stock. Until surrendered in accordance with
the provisions of this Section 2.4(b), each Certificate (other than Certificates
representing shares of Company Common Stock held by the Parent, the Sub, the
Company or any corporate affiliate of any of them and Dissenting Shares) shall
represent for all purposes the right to receive the Merger Consideration in cash
multiplied by the number of shares of Company Common Stock evidenced by that
Certificate, without any interest thereon.
(c) From and after the Effective Time, there shall be no transfers on
the stock transfer books of the Surviving Corporation of the shares of Company
Common Stock that were outstanding immediately prior to the Effective Time. If,
after the Effective Time, Certificates are presented to the Surviving
Corporation, they shall be cancelled and exchanged for cash as provided in this
Section 2.4.
(d) In the event any Certificate shall have been lost, stolen or
destroyed, upon the making of an affidavit of that fact by the person claiming
the Certificate to be lost, stolen or destroyed, the Surviving Corporation shall
issue in exchange for the lost, stolen or destroyed Certificate, the Merger
Consideration deliverable in respect thereof as determined in accordance with
this Section 2. When authorizing the delivery of the Merger Consideration in
exchange therefor, the board of directors of the Surviving Corporation may, in
its discretion and as a condition to the delivery thereof, require the owner of
the lost, stolen or destroyed Certificate to give the Surviving Corporation a
bond in such sum as it may direct (not greater than the product of the number of
Shares represented by such certificate and the Merger Consideration) as
indemnity against any claim that may be made against the Surviving Corporation
with respect to the Certificate alleged to have been lost, stolen or destroyed.
2.5 No Further Rights or Transfers. At and after the Effective Time, the
holder of a Certificate or of Dissenting Shares shall cease to have any rights
as a stockholder of the Company, except for, in the case of the holder of a
Certificate, the right to surrender his Certificate in exchange for payment of
the Merger Consideration, or, in the case of the holder of Dissenting Shares, to
perfect his right to receive payment for his Dissenting Shares pursuant to
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Section 262 of the GCL, if the holder has validly exercised and not withdrawn
his right to receive payment for his shares, and no transfer of those shares
shall be made on the stock transfer books of the Surviving Corporation.
2.6 Certificate of Incorporation of the Surviving Corporation. The
certificate of incorporation of the Company, as in effect immediately prior to
the Effective Time, shall be the certificate of incorporation of the Surviving
Corporation from and after the Effective Time, with Article Fourth amended to
read in its entirety that the authorized capital stock of the Surviving
Corporation shall consist of 1,000 shares of common stock, $1.00 par value.
2.7 By-Laws of the Surviving Corporation. The by-laws of the Sub, as in
effect immediately prior to the Effective Time, shall be the by-laws of the
Surviving Corporation until thereafter amended as provided in those by-laws or
by law.
2.8 Directors and Officers of the Surviving Corporation. At the Effective
Time, the directors of the Sub immediately prior to the Effective Time shall be
the directors of the Surviving Corporation, each to hold office, subject to the
provisions of the certificate of incorporation and by-laws of the Surviving
Corporation, until their respective successors shall be duly elected or
appointed. At the Effective Time, the officers of the Company immediately prior
to the Effective Time shall, subject to the provisions of the certificate of
incorporation and by-laws of the Surviving Corporation, be the officers of the
Surviving Corporation, until their respective successors shall be duly elected
or appointed.
2.9 Closing. The closing of the Merger shall take place (a) at the
offices of Beveridge & Diamond, P.C., 1350 I Street, N.W., Washington, D.C., at
10:00 am., local time, on the later of (i) the day of the Special Meeting
provided for in Section 2.11, if required by law, or (ii) the day on which the
last of the conditions set forth in Sections 5.1 and 5.2 is fulfilled or waived
(subject to applicable law), or (b) at such other time and place and on such
other date as the Parent, the Sub and the Company shall agree (the "Closing
Date").
2.10 Stock Options, Warrants and Convertible Securities. At or prior to
the consummation of the Offer, the Company shall have made arrangements the
effect of which shall be that no shares of Company Common Stock or capital stock
of the Surviving Corporation shall be issuable after the Effective Time pursuant
to options or warrants to purchase shares, or securities convertible into
shares, of Company Common Stock. The Company will cause any outstanding shares
of its 8.25% cumulative convertible redeemable preferred stock to be redeemed or
converted prior to consummation of the Offer. In full settlement of all options
and warrants, each holder thereof shall receive or be entitled to receive
immediately after the Effective Time a cash payment from the Company in an
amount equal to the excess, if any, of the price paid for each share of Company
Common Stock pursuant to the Merger over the per share exercise price of such
option or warrant multiplied by the number of shares of Company Common Stock
issuable pursuant to any such option or warrant, net, in the case of stock
options, of any income tax withholding and payroll taxes applicable to such
payment. Prior to consummation of the
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Offer, the Company shall have furnished to the Parent and the Sub evidence
satisfactory to the Parent confirming compliance by the Company with its
obligations under the first and second sentences of this Section 2.10.
2.11 Special Meeting. If required by applicable law in order to
consummate the Merger, the Company, acting through its board of directors,
shall, in accordance with applicable law:
(a) duly call, give notice of, convene and hold a special meeting (the
"Special Meeting") of its stockholders as soon as practicable following the
expiration of the Offer for the purpose of approving and adopting this
Agreement;
(b) subject to its fiduciary duties under applicable law, include in
the proxy statement for, or any information statement with respect to, the
Special Meeting the recommendation of its board of directors that stockholders
of the Company vote in favor of the approval and adoption of this Agreement; and
(c) use all reasonable efforts (i) to obtain and furnish the
information required to be included by it in the proxy statement or the
information statement, and, after consultation with the Sub and the Parent,
respond promptly to any comments made by the SEC with respect to the proxy
statement or the information statement and any preliminary version of the proxy
statement or the information statement and cause the proxy statement or the
information statement to be mailed to its stockholders at the earliest
practicable time following the expiration of the Offer, and (ii) subject to the
fiduciary duties of the board of directors under applicable law, to obtain the
necessary approval of the Merger by its stockholders. The Parent and the Sub
shall cause all the shares of Company Common Stock acquired pursuant to the
Offer or otherwise by the Parent, the Sub or any other subsidiary of the Parent
to be voted in favor of the Merger.
2.12 Merger Without Meeting of Stockholders. Notwithstanding anything to
the contrary in this Agreement, in the event that the Sub, or any other direct
or indirect subsidiary of the Parent, acquires at least 90% of the outstanding
shares of each class of capital stock of the Company, at the request of the
Parent or the Sub, the parties shall take all necessary and appropriate action
to cause the Merger to become effective, as soon as practicable after the
expiration of the Offer, without a meeting of stockholders of the Company in
accordance with Section 253 of the GCL.
3. Representations and Warranties.
3.1 Representations and Warranties of the Company. The Company represents
and warrants to the Parent and the Sub as set forth in Annex B to this
Agreement.
3.2 Representations and Warranties of the Parent and the Sub. The Parent
and the Sub jointly and severally represent and warrant to the Company as
follows:
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(a) Due Organization; Good Standing and Corporate Power. Each of the
Parent and the Sub is a corporation duly incorporated, validly existing and in
good standing under the law of the state of its incorporation and has all
requisite corporate power and authority to own, lease and operate its properties
and to conduct its business as now being conducted.
(b) Authorization and Validity of Agreement. Each of the Parent and
the Sub has full corporate power and authority to execute and deliver this
Agreement and to consummate the transactions contemplated by this Agreement.
The execution, delivery and performance by each of the Parent and the Sub of
this Agreement, and the consummation of the transactions contemplated by this
Agreement, have been duly authorized by the board of directors of the Parent and
the board of directors of the Sub, and this Agreement has been duly approved and
adopted by the sole stockholder of the Sub. No other corporate action on the
part of the Parent or the Sub is necessary to authorize the execution and
delivery of this Agreement by the Sub or the Parent, or the consummation by the
Parent and the Sub of the transactions contemplated by this Agreement. This
Agreement has been duly executed and delivered by the Parent and the Sub and is
a valid and binding obligation of the Parent and the Sub enforceable against the
Parent and the Sub in accordance with its terms.
(c) Brokers and Finders. Neither the Parent nor the Sub, nor any of
their officers, directors or employees, on behalf of the Company or any of its
subsidiaries, has incurred any financial advisory, brokerage or finders' fees,
commissions or other similar obligations or liabilities in connection with the
transactions contemplated by this Agreement.
(d) No Contravention. The execution and delivery of this Agreement
does not, and the consummation of the transactions contemplated hereby will not,
conflict with or result in any violation of or default (with or without notice
or lapse of time, or both) under, or give rise to a right of termination,
cancellation or acceleration of any obligation or to loss of a material benefit
under, any provision of the certificate of incorporation or by-laws of the
Parent or the Sub or any loan or credit agreement, note, bond, mortgage,
indenture, lease, or other agreement, instrument, permit, concession, franchise,
license, judgment, order, decree, statute, law, ordinance, rule or regulation
applicable to the Parent or the Sub or their respective properties or assets,
other than any such conflicts, violations, defaults, terminations,
cancellations, accelerations or losses which individually or in the aggregate do
not have a material adverse effect on the Parent or the Sub taken as a whole
together with the other subsidiaries of the Parent. No consent, approval, order
or authorization of, or registration, declaration or filing with, any court,
administrative agency or commission or other governmental authority or
instrumentality, domestic or foreign, is required by or with respect to the
Parent or the Sub in connection with the execution and delivery of this
Agreement by the Parent and the Sub or the consummation by the Parent and the
Sub of the transactions contemplated hereby, except for (a) the filing of a
notification and report form by or on behalf of the Parent under the Hart-Scott-
Rodino Antitrust Improvements Act of 1976, as amended (the "HSR Act"), (b) the
filing with the SEC of a Tender Offer Statement on Schedule 14D-1 relating to
the Offer and (c) the filing of such other documents with, and the obtaining of
such orders from, the SEC and various state securities or "blue sky" authorities
as may be required in connection with the transactions contemplated by this
Agreement, (d) the filing of the Certificate of Merger with the Secretary of
State of the State
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of Delaware and (e) such consents, approvals, orders, authorizations,
registrations, declarations and filings as may be required under the law of any
foreign country in which the Company or any of its Subsidiaries conducts any
business or owns any property or assets.
(e) Availability of Funds. The Parent currently has and will continue
to have through the Effective Time sufficient available cash, cash equivalents
or immediately available financing through existing unsecured financing
arrangements with sufficient currently available borrowing capacity in order to
pay all amounts which may be payable to stockholders of the Company pursuant to
the Offer and the Merger.
4. Covenants.
4.1 Disclosure Documents. The Company shall supply to the Parent and the
Sub the necessary information in writing, or cause the necessary information to
be supplied in writing (other than the information supplied in writing by the
Parent or the Sub), for inclusion in the Offer Documents and any other documents
to be filed with the SEC or any regulatory agency in connection with the
transactions contemplated by this Agreement.
4.2 Access to Information Concerning Properties and Records. During the
period prior to the Closing Date, the Company shall, upon reasonable notice,
afford the Parent and the Sub and their counsel, accountants and other
authorized representatives, full access during normal business hours to the
properties, books and records of the Company in order that they may have the
opportunity to make such reasonable investigation as they wish of the affairs of
the Company, and the Company shall cause its officers and employees to furnish
such additional financial and operating data and other information and respond
to such inquiries as the Parent and the Sub and other persons shall from time to
time reasonably request.
4.3 Confidentiality.
(a) Except as may be reasonably necessary to carry out this Agreement
and the transactions contemplated by this Agreement, the Parent and the Sub
shall, and shall require their respective officers, directors, employees and
authorized representatives to, hold in confidence prior to the Effective Time
and for two years from any termination of this Agreement all data and
information obtained by them from the Company (unless required to disclose such
information by judicial or administrative process, as otherwise required by law,
or unless such information (i) is or becomes generally available to the public
other than as a result of a disclosure by the Parent, any subsidiary of the
Parent or any of their representatives, (ii) is independently acquired or
developed by, the Parent, any subsidiary of the Parent or any of their
representatives without violating any confidentiality agreement between any such
person and the Company or any of its representatives, or (iii) is, or becomes,
available to the Parent, any subsidiary of the Parent or any of their
representatives from a source other than the Company or its representatives,
provided that such source is not known by the Parent, any subsidiary of the
Parent or any of their representatives to be bound by a confidentiality
agreement with the Company or any of its representatives or by any other legal,
contractual or fiduciary duty not to
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disclose such information) and shall not, and shall use all reasonable efforts
to cause such officers, directors, employees and authorized representatives not
to, disclose such information to others without the prior written consent of the
Company.
(b) If this Agreement is terminated, the Parent and the Sub shall, if
so requested by the Company, promptly return every document furnished to them or
their affiliates in connection with the transactions contemplated by this
Agreement and any copies of such documents that may have been made and shall use
all reasonable efforts to cause the representatives to whom such documents were
furnished promptly to return such documents and any copies of such documents,
other than documents filed with the SEC or otherwise publicly available.
4.4 Interim Operations of the Company. During the period from the date of
this Agreement and continuing until the Effective Time, the Company agrees
(except as expressly contemplated by this Agreement or to the extent that the
Parent and the Sub shall otherwise consent in writing) that:
(a) Ordinary Course. The Company shall carry on its business in the
usual, regular and ordinary course in substantially the same manner as
heretofore conducted and, to the extent consistent with such business, use all
reasonable efforts to preserve intact its present business organization, keep
available the services of its present officers and employees and preserve its
relationships with customers, suppliers and others having business dealings with
it to the end that their goodwill and on-going businesses shall be unimpaired at
the Effective Time.
(b) Dividends; Changes in Stock. The Company shall not and shall not
propose to (i) declare or pay any dividend on, or make other distributions in
respect of, any of its capital stock (except regular dividends on the Preferred
Stock), (ii) split, combine or reclassify any of its capital stock or issue,
authorize or propose the issuance of any other securities in respect of, in lieu
of or in substitution for shares of capital stock of the Company or (iii)
repurchase or otherwise acquire any shares of capital stock of the Company
(other than pursuant to the terms of its Preferred Stock).
(c) Issuance of Securities. The Company shall not sell, issue,
authorize or propose the sale or issuance of, or purchase or propose the
purchase of, any shares of its capital stock of any class or securities
convertible into, or rights, warrants or options to acquire, any such shares or
other convertible securities (other than the issuance of Common Stock upon the
exercise or conversion of currently outstanding stock options or warrants or
convertible securities).
(d) Governing Documents. The Company shall not amend its certificate
of incorporation or by-laws.
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(e) No Acquisition. The Company shall not acquire or agree to acquire
by merging or consolidating with, or by purchasing a substantial portion of the
assets of, or by any other manner, any business or any corporation, partnership,
association or other business organization or division thereof or otherwise
acquire or agree to acquire any assets which are material, individually or in
the aggregate, to the Company.
(f) No Dispositions. The Company shall not sell, lease or otherwise
dispose of, or agree to sell, lease or otherwise dispose of, any of its assets,
which are material, individually or in the aggregate, to the Company, except in
the ordinary course of business consistent with prior practice.
(g) Indebtedness. The Company shall not incur any indebtedness for
borrowed money or guarantee any such indebtedness or issue or sell any debt
securities of the Company or guarantee any debt securities of others other than
in the ordinary course of business consistent with prior practice.
(h) Benefit Plans, Etc. The Company shall not adopt or amend in any
material respect any collective bargaining agreement or Employee Benefit Plan
(as that term is defined in Annex B) other than in the ordinary course of
business consistent with prior practice.
(i) Executive Compensation. The Company shall not grant to any
executive officer any increase in compensation or in severance or termination
pay, or enter into any employment agreement with any executive officer, except
as may be required under employment or termination agreements in effect on the
date of this Agreement or in the ordinary course of business consistent with
prior practice.
4.5 Consents. The Company, the Parent and the Sub shall cooperate and use
all reasonable efforts to obtain, prior to the Closing Date, all licenses,
permits, consents, approvals, authorizations, qualifications and orders of
governmental authorities and parties to contracts with the Company as are
necessary for the consummation of the transactions contemplated by this
Agreement; however, no loan agreement or contract for borrowed money shall be
repaid and no contract shall be amended materially to increase the amount
payable thereunder or otherwise to be materially more burdensome to the Company
in order to obtain any such consent, approval or authorization without first
obtaining the written approval of the Parent.
4.6 No Solicitation. The Company shall not, and shall use all reasonable
efforts to cause its affiliates, officers, directors, employees, representatives
and agents not to, directly or indirectly, solicit, initiate, or knowingly
promote discussions or negotiations with, any corporation, partnership, person
or other entity or group (other than the Parent or any of its affiliates or
representatives) concerning any merger, tender offer, sale of any material
assets, sale of shares of capital stock or similar transaction involving the
Company or any division of the Company. Notwithstanding the foregoing, the
Company may, if required by the fiduciary duties of its directors after
consulting with outside counsel to the Company, (i) furnish information to any
corporation, partnership, person or other entity or group pursuant to
appropriate confidentiality agreements, and (ii) negotiate or participate in
discussions with such entity or
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group. The Company shall immediately advise the Parent of the terms of any
proposal, the fact of any negotiation, discussion or inquiry and the identity of
the party making such proposal or inquiry or involved in such discussion or
negotiation.
4.7 Filings. The Parent, the Sub and the Company shall as promptly as
practicable make any required filings, and the Parent, the Sub and the Company
shall promptly make any other required submissions, under any law, statute,
order, rule or regulation with respect to the Merger and shall cooperate with
each other with respect to the foregoing.
4.8 All Reasonable Efforts. Subject to the terms and conditions of this
Agreement and to the fiduciary duties and obligations of the board of directors
of the Company, each of the parties to this Agreement 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, or to remove any injunctions or other impediments or delays, legal
or otherwise, to consummate the Merger and the other transactions contemplated
by this Agreement.
4.9 Public Announcements. The Company, the Parent and the Sub shall
consult with each other before issuing any press release or otherwise making any
public statements with respect to the Offer and the Merger, this Agreement or
the other transactions contemplated by this Agreement and shall not issue any
other press release or make any other public statement without prior
consultation with the other parties, except as may be required by law or by
obligations pursuant to any listing agreement with any national securities
exchange.
4.10 Notification of Certain Matters. The Company shall give prompt
notice to the Parent, and the Parent and the Sub shall give prompt notice to the
Company, of (a) the occurrence, or non-occurrence, of any event the occurrence,
or non-occurrence, of which would cause any of its representations or warranties
in this Agreement to be untrue or inaccurate in any material respect at or prior
to the Effective Time and (b) any material failure of the Company, on the one
hand, or the Parent or the Sub, on the other hand, as the case may be, to comply
with or satisfy any covenant, condition or agreement to be complied with or
satisfied by it under this Agreement; however, the delivery of any notice
pursuant to this Section 4.10 shall not limit or otherwise affect the remedies
available to the party receiving such notice under this Agreement.
4.11 Directors' and Officers' Indemnification.
(a) The Parent acknowledges that all rights to indemnification or
limitations on liability now existing in favor of the present or former
employees, agents, directors or officers of the Company as provided in its
certificate of incorporation, by-laws, agreements or pursuant to applicable law
in effect on this date shall survive the Merger and shall continue in full force
and effect for a period of not less than the applicable statutes of limitations;
however, in the event any claim or claims are asserted or made within such
applicable period, all rights to indemnification in respect of any such claim or
claims shall continue until disposition of any and all such claims.
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(b) If any action, suit, proceeding or investigation relating to this
Agreement or to the transactions contemplated by this Agreement is commenced,
whether before or after the Effective Time, the parties shall cooperate with
each other and use all reasonable efforts to defend against and respond to any
such action, suit, proceeding or investigation.
(c) The Parent and the Surviving Corporation agree to maintain in
effect the Company's current directors' and officers' insurance policy for the
remainder of its term and to purchase a policy providing continued coverage
relating to actions, alleged actions, omissions and alleged omissions occurring
at or prior to the Effective Time for a period of at least three years from and
after the Effective Time; provided that the total amount the Parent and the
Surviving Corporation are required to expend for such coverage shall not exceed
250% of the premium for such current policy.
4.12 Expenses. Except as otherwise provided herein, all costs and
expenses incurred in connection with this Agreement and the transactions
contemplated hereby shall be paid by the party incurring such expenses whether
or not the Offer or the Merger is consummated.
5. Conditions to Consummation of the Merger.
5.1 Conditions to Each Party's Obligation to Effect the Merger. The
respective obligations of each party to effect the Merger are subject to the
satisfaction or waiver at or prior to the Effective Time of each of the
following conditions:
(a) If required by the GCL, this Agreement shall have been approved
and adopted by the affirmative vote of the stockholders of the Company by the
requisite vote in accordance with the GCL.
(b) No statute, rule, regulation, executive order, decree, injunction
or restraining order shall have been enacted, entered, promulgated or enforced
by any court of competent jurisdiction or governmental authority that prohibits
or restricts the consummation of the Merger.
(c) Any waiting period applicable to the Merger under the HSR Act
shall have expired or been terminated.
5.2 Additional Condition to Obligations of the Parent and the Sub to
Effect the Merger. The obligations of the Parent and the Sub to consummate the
transactions contemplated by this Agreement are also subject to the
satisfaction, at or prior to the Effective Time, of the condition that the Sub
shall have accepted for payment and paid for shares of Company Common Stock
tendered pursuant to the Offer; however, this condition shall be deemed
satisfied if the Sub fails to accept for payment and pay for shares of Company
Common Stock pursuant to the Offer in violation of the terms of the Offer.
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<PAGE>
6. Termination.
6.1 Termination. This Agreement may be terminated and the Merger may be
abandoned at any time prior to the Effective Time, whether before or after
stockholder approval of the Merger:
(a) by mutual written consent of the boards of directors of the
Company, the Parent and the Sub;
(b) by any of the Company, the Parent or the Sub:
(i) if a purchase of shares of Company Common Stock pursuant to
the Offer shall not have occurred on or before June 30, 1995; however, the right
to terminate this Agreement under this Section 6.1(b) shall not be available to
any party whose failure to fulfill any obligation under this Agreement has been
the cause of, or resulted in, the failure of a purchase of shares of Company
Common Stock pursuant to the Offer to occur on or before that date; or
(ii) if any court of competent jurisdiction, or any governmental
body, regulatory or administrative agency or commission having appropriate
jurisdiction shall have issued an order, decree or ruling or taken any other
action restraining, enjoining or otherwise prohibiting the transactions
contemplated by this Agreement and such order, decree, ruling or other action
shall have become final and non-appealable;
(c) by the Company:
(i) if the Sub shall have (A) failed to commence the Offer within
five business days following the date of this Agreement, (B) terminated the
Offer or (C) failed to pay (by deposit with the depository for the Offer) for
shares of Company Common Stock pursuant to the Offer within five business days
following the expiration of the Offer; or
(ii) if, prior to the purchase of shares of Company Common Stock
pursuant to the Offer, the board of directors of the Company shall have (A)
withdrawn (or modified in a manner adverse to the Sub) its recommendation to the
Company's stockholders to accept the Offer in order to permit the Company, in
response to an offer as to which the Company has not contravened Section 4.6
hereof, to execute a definitive agreement providing for the acquisition of the
Company, or to approve a tender offer for all the outstanding Company Common
Stock, in either case on terms determined by the Company's board of directors,
after consultation with outside legal and financial advisors, to be more
favorable to the stockholders of the Company than the acquisition of the Company
contemplated by this Agreement, or (B) recommended another such offer; or
(d) by the Parent and the Sub:
(i) if due to an occurrence that would result in a failure to
satisfy any of the conditions set forth in Annex A, the Sub shall have (A)
failed to commence the Offer within five business days following the date of
this Agreement, or (B) terminated the Offer; or
16
<PAGE>
(ii) if, prior to the purchase of shares of Company Common Stock
pursuant to the Offer, the board of directors of the Company shall have
withdrawn (or modified in a manner adverse to the Sub) its approval or
recommendation of the Offer, this Agreement or the Merger, or shall have
recommended another offer; or
(iii) if the Company deliberately fails to perform in any material
respect any of its obligations under this Agreement, and, at the time of such
failure, the Parent's and the Sub's designees on the board of directors of the
Company do not constitute a majority of the members of the board of directors of
the Company.
6.2 Notice and Effect of Termination. In the event of the termination and
abandonment of this Agreement pursuant to Section 6.1, written notice thereof
shall forthwith be given to the other party or parties specifying the provision
pursuant to which such termination is made, and this Agreement shall forthwith
become void and have no effect, without any liability on the part of any party
or its directors, officers or stockholders, except for the provisions of this
Section 6.2 and Sections 4.3, 4.11(b), 4.12 and 7. Nothing contained in this
Section 6.2 shall relieve any party from liability for any breach of this
Agreement. Sections 4.3, 4.11(b), 4.12 and 7 shall survive any termination of
this Agreement.
6.3 Extension; Waiver. Any time prior to the Effective Time, the parties
may (a) extend the time for the performance of any of the obligations or other
acts of any other party, (b) waive any inaccuracies in the representations and
warranties by any other party or (c) waive compliance with any of the agreements
of any other party or with any conditions to its own obligations. Any agreement
on the part of any other party to any such extension or waiver shall be valid
only if set forth in an instrument in writing signed on behalf of such party.
6.4 Amendment and Modification. This Agreement may be amended, whether
before or after the vote of the stockholders of the Company contemplated by
Section 2.11, by written agreement of the Company, the Parent and the Sub;
however, after the approval of this Agreement by the stockholders of the
Company, no such amendment shall reduce or change the Merger Consideration to be
delivered to the stockholders pursuant to Sections 2.2 and 2.4 or shall
otherwise adversely affect the rights under this Agreement of the Company's
stockholders without the approval of such stockholders. This Agreement may not
be amended except by an instrument in writing signed on behalf of all the
parties.
7. Miscellaneous.
7.1 Fees. If at any time while this Agreement is in effect (a) any
person, corporation, partnership or other entity (other than the Parent, the Sub
or any of their affiliates) ("Third Person") acquires more than 33% of the
outstanding shares of Common Stock, (b) a Third Person acquires more than 50% of
the Company's total assets, (c) the Company consummates a plan of liquidation
relating to more than 50% of its total assets, (d) the Company repurchases more
than 50% of the outstanding shares of the Company's Common Stock, (e) the
Company consummates a merger of the Company with, the sale of all or
substantially all of the assets of the Company to, or any other business
combination involving the Company with a Third Person, or (f) Parent and Sub
terminate this Agreement because of the failure to satisfy the Minimum Condition
and
17
<PAGE>
within one year from the date of such termination a transaction contemplated by
Subsections (a), (b) or (e) of this Section 7.1 is consummated with a Third
Person, provided (i) that such transaction is accomplished so as to provide a
yield to holders of Company Common Stock of at least the equivalent of $11.50
per share, and (ii) there was a public announcement or written proposal to
effect such transaction by or with such Third Person while this Agreement is in
effect, or (g) the board of directors of the Company withdraws or amends in any
material respect adverse to consummation of the Offer its recommendation that
the Offer be accepted by the Company's stockholders and that stockholders tender
their shares of Company Common Stock in the Offer, unless such withdrawal or
amendment results from a material breach by Parent or Sub of any representations
or warranties herein or a failure by Parent or Sub to fulfill any material
covenant herein, then the Company shall, within five days after the first of
such events has occurred, pay the Parent a fee of $1,000,000.
Nothing in this Section 7.1 shall relieve the Company from its obligation
(subject to the fiduciary responsibility of its directors) to recommend that the
Company's stockholders accept the Offer and approve this Agreement pursuant to
Section 1.2 of this Agreement.
7.2 Survival of Representations and Warranties. The respective
representations and warranties of the Company, the Parent and the Sub shall not
be deemed waived or otherwise affected by any investigation made by any party.
Each representation and warranty in this Agreement and each covenant of the
Company in Annex B shall expire with, and be terminated and extinguished by, the
first purchase of shares of Company Common Stock under the Offer and thereafter
the Company, the Parent and the Sub shall have no liability with respect to any
such representation or warranty. This Section 7.2 shall have no effect upon any
other obligation of the parties, whether to be performed before or after the
first purchase of shares of Company Common Stock under the Offer.
7.3 Notices. All notices, requests, demands, waivers and other
communications required or permitted to be given under this Agreement shall be
in writing and shall be deemed to have been duly given if delivered personally
or mailed, certified or registered mail with postage prepaid, or when received
by telex, telegram or telecopier, as follows:
(a) if to the Company, to it at:
Resource Recycling Technologies, Inc.
200 Plaza Drive
Vestal, New York 13850
Attention: Lawrence J. Schorr, President
Facsimile: 607-798-0503
18
<PAGE>
with a copy to:
Beveridge & Diamond, P.C.
1350 I Street, N.W.
Washington, D.C. 20005
Attention: Dean H. Cannon, Esq.
Facsimile: 202-789-6190
(b) if to the Parent or the Sub, to it at:
Waste Management, Inc.
3003 Butterfield Road
Oak Brook, Illinois 60529
Attention: General Counsel
Facsimile: 708-684-7050
with a copy to:
Bell, Boyd & Lloyd
Three First National Plaza, Room 3300
Chicago, Illinois 60602
Attention: John H. Bitner, Esq.
Facsimile: 312-372-2098
7.4 Entire Agreement; Assignment. This Agreement, including all Annexes,
exhibits and schedules hereto, (a) constitutes the entire agreement among the
parties with respect to its subject matter and supersedes all prior agreements
and understandings, both written and oral, among the parties or any of them with
respect to such subject matter and (b) shall not be assigned by operation of law
or otherwise, provided that, subject to any approvals required by applicable
law, the Parent or the Sub may assign its respective rights and obligations to
any majority-owning or owned, direct or indirect, parent, subsidiary or
subsidiaries of the Parent, but no such assignment shall relieve the Parent or
the Sub of its obligations under this Agreement.
7.5 Binding Effect; Benefit. This Agreement shall inure to the benefit of
and be binding upon the parties and their respective successors and assigns.
Nothing in this Agreement is intended to confer on any person other than the
parties to this Agreement or their respective successors and assigns any rights,
remedies, obligations or liabilities under or by reason of this Agreement.
7.6 Headings. The descriptive headings of the sections of this Agreement
are inserted for convenience only, do not constitute a part of this Agreement
and shall not affect in any way the meaning or interpretation of this Agreement.
7.7 Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed to be an original, and all of which
together shall be deemed to be one and the same instrument.
19
<PAGE>
7.8 Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the state of Delaware, without regard to the
conflicts of laws rules of Delaware.
7.9 Severability. If any term, provision, covenant or restriction of this
Agreement is held by a court of competent jurisdiction or other authority to be
invalid, void, unenforceable or against its regulatory policy, the remainder of
this Agreement shall remain in full force and effect and shall in no way be
affected, impaired or invalidated.
7.10 Certain Definitions. As used herein:
(a) "affiliate" shall have the meaning ascribed to such term in Rule
12b-2 of the General Rules and Regulations under the Exchange Act;
(b) "Company," when used in the context of a covenant, undertaking,
representation or warranty made by the Company, unless the context otherwise
requires, shall also be deemed to be made by the Company with respect to its
subsidiaries, provided that materiality shall in all cases be measured with
respect to the Company and its subsidiaries considered as a whole. For example,
a representation that the Company is duly incorporated shall be deemed to be a
representation that each of the Company's subsidiaries is also duly
incorporated, but the materiality of the failure of a subsidiary to be so
incorporated shall be measured with respect to the Company and its subsidiaries
taken as a whole (and not with respect to that subsidiary alone);
(c) "Material Adverse Effect" shall mean any adverse effect on the
business, financial condition or results of operations of the Company and its
subsidiaries which is material to the Company and its subsidiaries taken as a
whole, excluding any change which generally affects the recycling industry as a
whole in the United States (such as changes in commodity prices and changes in
legal requirements); and
(d) "subsidiary" shall mean, when used with reference to an entity,
any corporation, a majority of the outstanding voting securities of which is
owned directly or indirectly, or a majority of the board of directors of which
may be elected, by such entity.
20
<PAGE>
IN WITNESS WHEREOF, Parent, Sub and the Company have caused this
Agreement to be signed by their respective officers thereunto duly authorized,
all as of the date first written above.
RESOURCE RECYCLING TECHNOLOGIES,
INC.
/s/ LAWRENCE J. SCHORR
By:___________________________
Title: President and Chief Executive
Officer
WASTE MANAGEMENT, INC.
/s/ JOSEPH M. HOLSTEN
By:___________________________
Title: Executive Vice President
WMI ACQUISITION SUB, INC.
/s/ JOSEPH M. HOLSTEN
By:___________________________
Title: Vice President
21
<PAGE>
ANNEX A
TO
AGREEMENT AND PLAN OF MERGER
Conditions of the Offer. Notwithstanding any other provisions of the
Offer, and in addition to (and not in limitation of) the Sub's right to amend
the Offer at any time in its sole discretion, but nevertheless subject to the
provisions of the Agreement (capitalized terms used herein and not otherwise
defined herein having the meanings ascribed to such terms in the Agreement) the
Sub shall not be required to accept for payment, or pay for, and may delay the
acceptance for payment, or the payment, of, any tendered shares of Company
Common Stock, if (i) the Minimum Condition shall not have been satisfied, or
(ii) at any time on or after the date of the Agreement and at or before the time
of payment for any such shares of Company Common Stock (whether or not any
shares of Company Common Stock have theretofore been accepted for payment or
paid for pursuant to the Offer), any of the following events shall occur:
(a) any Material Adverse Effect shall have occurred or be threatened;
or
(b) there shall have occurred (1) any general suspension of trading
in, or limitation on prices for, securities on the New York Stock Exchange or
the American Stock Exchange (excluding any coordinated trading halt triggered
solely as a result of a specified decrease in a market index), (2) a declaration
of a banking moratorium or any suspension of payments in respect of banks in the
United States (whether or not mandatory), (3) any material limitation (whether
or not mandatory) imposed by any governmental authority on the extension of
credit by banks or other lending institutions in the United States that
materially and adversely affects the ability of the Parent and the Sub to obtain
extensions of credit, or (4) from the date of the Agreement through the date of
termination or expiration of the Offer, a decline of at least 33% in either the
Dow Jones Average of Industrial Stocks or the Standard & Poor's 500 Index; or
(c) any of the representations and warranties made by the Company in
the Agreement shall not be true and correct in any material respect, or the
Company shall have breached in any material respect any covenant contained in
the Agreement or the Agreement shall have been terminated in accordance with its
terms; or
(d) there shall have been any action taken, or any statute, rule,
regulation, judgment, order or injunction promulgated, enacted, entered or
enforced, by any state, federal or foreign government or governmental authority
or by any court, domestic or foreign, that could reasonably be expected to (i)
make the acceptance for payment of, or the payment for, some or all of the
shares of Company Common Stock illegal or otherwise prohibited, (ii) impose
material limitations on the ability of the Parent or the Sub to acquire or hold
or to exercise effectively all rights of ownership of Company Common Stock,
including, without limitation, the right to vote any shares of Company Common
Stock purchased by either of them on all matters properly presented to the
stockholders of the Company, or (iii) prohibit or impose any material limitation
on the Parent's or the Sub's ownership or operation of all or a material portion
of the assets or business of the Company or any of its subsidiaries or
affiliates; or
A-1
<PAGE>
(e) the Company, the Parent or the Sub shall have failed to receive
any or all governmental consents and approvals to consummation of the Offer,
which, if not received, could reasonably be expected to have a Material Adverse
Effect; or
(f) the board of directors of the Company shall have publicly
(including by amendment of its Schedule 14D-9) withdrawn or amended in any
respect its recommendation of the Offer or shall have resolved to do so, unless
such withdrawal or amendment results from a material breach by Parent or Sub of
any representations or warranties herein or a failure by Parent or Sub to
fulfill any material covenant herein.
The foregoing conditions are for the sole benefit of the Parent and
the Sub and may be asserted by the Parent or the Sub regardless of the
circumstance giving rise to such condition and, subject to the terms of the
Agreement, may be waived by the Parent and the Sub, in whole or in part at any
time and from time to time, in their sole discretion (except that the Minimum
Condition may not be waived by the Purchaser without the consent of the
Company). The failure by the Parent and the Sub at any time to exercise any of
the foregoing rights shall not be deemed a waiver of any such right and each
such right shall be deemed an ongoing right, which may be asserted at any time
and from time to time. Any determination by the Parent and the Sub shall be
final and binding upon all parties, including tendering stockholders.
A-2
<PAGE>
ANNEX B
TO
AGREEMENT AND PLAN OF MERGER
For purposes hereof, capitalized terms used herein and not otherwise
defined herein have the meanings ascribed to such terms in the Agreement.
Any representations and warranties contained herein shall be qualified
by the contents of a writing delivered by the Company to the Parent prior to the
date of this Agreement which specifically references the Sections of this Annex
B intended to be so qualified (the "Writing").
SECTION 1. Corporate Existence and Power. The Company is a
corporation duly incorporated, validly existing and in good standing under the
laws of its jurisdiction of incorporation, and has all corporate powers and,
except for such the absence of which would not have a Material Adverse Effect,
all governmental licenses, authorizations, consents and approvals required to
carry on its business as now conducted. The Company is duly qualified to do
business as a foreign corporation and is in good standing in each jurisdiction
where the character of the property owned or leased by it or the nature of its
activities makes such qualification necessary, except for those jurisdictions
where the failure to be so qualified would not, individually or in the
aggregate, have a Material Adverse Effect. The Company has heretofore delivered
to the Parent true and complete copies of the Company's certificate of
incorporation and by-laws as currently in effect.
SECTION 2. Corporate Authorization. The execution, delivery and
performance by the Company of the Agreement and the consummation by the Company
of the transactions contemplated thereby are within the Company's corporate
powers and, except for any required approval by the Company's stockholders in
connection with the consummation of the Merger, have been duly authorized by all
necessary corporate action. The Agreement constitutes a valid and binding
Agreement of the Company, enforceable in accordance with its terms.
SECTION 3. No Contravention. The execution and delivery of the
Agreement does not, and the consummation of the transactions contemplated
thereby will not, conflict with or result in any violation of or default (with
or without notice or lapse of time, or both) under, or give rise to a right of
termination, cancellation or acceleration of any right or obligation or to loss
of a material benefit under, any provision of the certificate of incorporation
or by-laws of the Company or any loan or credit agreement, note, bond, mortgage,
indenture, lease, or other agreement, instrument, permit, concession, franchise,
license, judgment, order, decree, statute, law, ordinance, rule or regulation
applicable to the Company or its properties or assets, except for agreements,
contracts or instruments which do not provide for a payment to or from the
Company in excess of $100,000, or result in the creation or imposition of any
mortgage, lien, pledge, charge, security interest or encumbrance of any kind
("Lien") on any asset of the Company. No consent, approval, order or
authorization of, or registration, declaration or filing with, any court,
administrative agency or commission or other governmental authority or
B-1
<PAGE>
instrumentality, domestic or foreign, is required by or with respect to the
Company in connection with the execution and delivery of the Agreement by the
Company or the consummation by the Company of the transactions contemplated
thereby, except for (a) the filing of a notification and report form by or on
behalf of the Company under the HSR Act, (b) the filing with the SEC of a
Solicitation/Recommendation Statement on Schedule 14D-9 relating to the Offer
(the "Schedule 14D-9") and (c) the filing with the SEC and the distribution to
stockholders of a proxy statement relating to any meeting of the Company's
stockholders required in connection with the Merger (as that term is defined in
the Agreement) (the "Proxy Statement") or any information statement required in
connection with the Merger (the "Information Statement"), as the case may be,
(d) the filing of such other documents with, and the obtaining of such orders
from, the SEC and various state securities or "blue sky" authorities as may be
required in connection with the transactions contemplated by the Agreement, and
(e) the filing of the Certificate of Merger with the Secretary of State of the
State of Delaware.
SECTION 4. Capitalization. The authorized capital stock of the
Company consists of 5,000,000 shares of Common Stock of the Company (the
"Shares") and 500,000 preferred shares. As of March 9, 1995, there were
outstanding (i) 2,675,773 Shares, (ii) 7,813 shares of 8.25% cumulative
convertible redeemable preferred stock, no par value, convertible into an
aggregate of 6,509 Shares ("Preferred Stock"), (iii) employee and director stock
options to purchase an aggregate of 435,500 Shares (all of which options are or
by virtue of the Merger, will be exercisable), (iv) a warrant dated April 11,
1990 to purchase 113,363 Shares at an adjusted exercise price of $9.13 per
share, and (v) an option dated August 26, 1992 to purchase 25,000 Shares at an
exercise price of $3.00 per share. All outstanding shares of capital stock of
the Company have been duly authorized and validly issued and are fully paid and
nonassessable. Except as set forth in this Section 4 and except for changes
since March 9, 1995, resulting from the exercise of employee or other stock
options and warrants and the conversion of Preferred Stock outstanding on such
date, there are outstanding (A) no shares of capital stock or other voting
securities of the Company, (B) no securities of the Company convertible into or
exchangeable for shares of capital stock or voting securities of the Company,
and (C) no options or other rights to acquire from the Company, and no
obligation of the Company to issue, any capital stock, voting securities or
securities convertible into or exchangeable for capital stock or voting
securities of the Company (the items in clauses (i), (ii), (iii), (iv) and (v)
being referred to collectively as the "Company Securities"). There are no
outstanding obligations of the Company to repurchase, redeem or otherwise
acquire any Company Securities, other than Preferred Stock. Except for the
subsidiaries identified in the Writing, the Company does not own any stock of
any corporation or other entity.
SECTION 5. SEC Filings. (a) The Company has delivered to the Parent
(i) its annual reports on Form 10-K for its fiscal years ended December 31,
1991, 1992 and 1993, (ii) its quarterly reports on Form 10-Q for its fiscal
quarters ended March 31, June 30 and September 30, 1994, (iii) its proxy or
information statements relating to meetings of, or actions taken without a
meeting by, the stockholders of the Company held since January 1, 1991 and (iv)
all of its other reports, statements, schedules and registration statements
filed by the Company with the SEC since January 1, 1991, but including only such
pre-effective amendments to such registration statements as contain material
information not fully reflected in any subsequent
B-2
<PAGE>
amendment to such registration statements (or to any prospectus included
therein) delivered to the Parent pursuant to this Section 5. The Company will
file with SEC by not later than March 31, 1995 (or such later date as is in
compliance with SEC Rule 12b-25) its annual report on Form 10-K for the year
ended December 31, 1994, and deliver a copy thereof to Parent at or before such
filing.
(b) As of its filing date, each such report or statement filed
pursuant to the Exchange Act did not (or will not) contain any untrue statement
of a material fact or omit to state any material fact necessary in order to make
the statements made therein, in light of the circumstances under which they were
made, not misleading.
(c) Each such registration statement, as amended or supplemented if
applicable, filed pursuant to the Securities Act of 1933, as amended (the
"Securities Act"), as of the date such statement or amendment became effective,
did not contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the statements
therein not misleading.
SECTION 6. Financial Statements. The audited consolidated financial
statements at and for the year ended December 31, 1994 delivered to the Parent
and the audited consolidated financial statements and unaudited consolidated
interim financial statements of the Company included in its annual reports on
Form 10-K and its quarterly reports on Form 10-Q referred to in Section 5 fairly
present, in conformity with generally accepted accounting principles applied on
a consistent basis, the consolidated financial position of the Company as of the
dates thereof and its consolidated results of operations and changes in
financial position or cash flows, as the case may be, for the periods then ended
(subject to normal year-end adjustments in the case of any unaudited interim
financial statements).
SECTION 7. Disclosure Documents. Each document required to be filed
by the Company with the SEC in connection with the transactions contemplated by
this Agreement (the "Company Disclosure Documents") and any amendment or
supplements thereto will, when filed, comply as to form in all material respects
with the applicable requirements of the Exchange Act.
SECTION 8. Absence of Certain Changes. Except for transactions
contemplated by the Agreement, since December 31, 1994 (the "Balance Sheet
Date"), the Company has conducted its business in the ordinary course consistent
with past practice and there has not been:
(a) any event, occurrence or development of a state of circumstances
or facts which has had or reasonably could be expected to have a Material
Adverse Effect;
(b) any declaration, setting aside or payment of any dividend (except
for any regular dividends on the Preferred Stock) or other distribution with
respect to any shares of capital stock of the Company or any repurchase,
redemption or other acquisition by the Company of any outstanding shares of
capital stock or other securities of, or other ownership interests in, the
Company;
(c) any amendment of any term of any outstanding security of the
Company;
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<PAGE>
(d) any incurrence, assumption or guarantee by the Company of any
indebtedness for borrowed money other than in the ordinary course of business
consistent with past practice;
(e) any creation or assumption by the Company of any Lien on any
material asset other than in the ordinary course of business consistent with
past practice;
(f) any making of any loan, advance or capital contribution to or
investment in any Person other than loans or advances made in the ordinary
course of business consistent with past practice;
(g) any damage, destruction or other casualty loss (whether or not
covered by insurance) affecting the business or assets of the Company which,
individually or in the aggregate, has had or would reasonably be expected to
have a Material Adverse Effect;
(h) any transaction or commitment made, or any contract or agreement
entered into, by the Company relating to its assets or business (including the
acquisition or disposition of any assets) or any relinquishment by the Company
of any contract or other right, in either case, material to the Company, other
than transactions and commitments in the ordinary course of business consistent
with past practice and those contemplated by the Agreement;
(i) any change in any method of accounting or accounting practice by
the Company, except for any such change required by reason of a concurrent
change in generally accepted accounting principles;
(j) other than in the ordinary course of business consistent with past
practice, any (i) grant of any severance or termination pay to any director,
officer or employee of the Company, (ii) entering into of any employment,
deferred compensation or other similar agreement (or any amendment to any such
existing Agreement) with any director, officer or employee of the Company, (iii)
increase in benefits payable under any existing severance or termination pay
policies or employment agreements or (iv) increase in compensation, bonus or
other benefits payable to directors, officers or employees of the Company;
(k) any (i) labor dispute (other than routine individual grievances),
lockout, strike, slowdown, work stoppage or threat thereof by or with respect to
any employees of the Company, or (ii) activity or proceeding by a labor union or
representative thereof to organize any such employees.
SECTION 9. Properties. (a) The Company has good and marketable title
to, or in the case of leased property has valid leasehold interests in, all
properties and assets (whether real, personal, tangible or intangible) reflected
on the December 31, 1994 balance sheet or in the notes thereto (the "December
Balance Sheet") or acquired after the Balance Sheet Date, except for properties
and assets sold since the Balance Sheet Date in the ordinary course of business
consistent with past practice. None of such owned properties or assets is
subject to any Liens and, to the best knowledge of the Company, no leased
property is subject to any Liens incurred by the Company, except:
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<PAGE>
(i) Liens disclosed in the December Balance Sheet;
(ii) Liens for taxes not yet due or being contested in good faith
(and for which adequate reserves have been established on the December Balance
Sheet);
(iii) Liens arising under financing agreements of the Company
identified in the December Balance Sheet;
(iv) Statutory or common law Liens relating to obligations of the
Company that are not delinquent or are being contested in good faith;
(v) Purchase money security interests securing obligations of the
Company that are not delinquent for the purchase of goods in the ordinary course
of business consistent with past practice; or
(vi) Liens which do not materially detract from the value of such
property or assets as now used, or materially interfere with any present or
intended use of such property or assets.
(b) No violation of any law, regulation or ordinance (including,
without limitation, laws, regulations or ordinances relating to zoning, city
planning or similar matters) relating to any of the properties or assets of the
Company exists or has existed at any time since January 1, 1989 other than for
violations which have not had and could not reasonably be expected to have,
individually or in the aggregate, a Material Adverse Effect. There are no
developments affecting any of such properties or assets pending or, to the
knowledge of the Company, threatened, which could reasonably be expected to
have, individually or in the aggregate, a Material Adverse Effect.
SECTION 10. No Undisclosed Material Liabilities. There are no
material liabilities of the Company of any kind whatsoever, whether accrued,
contingent, absolute, determined, determinable or otherwise, and there is no
existing condition, situation or set of circumstances known to the Company which
could reasonably be expected to result in such a liability, other than:
(i) liabilities disclosed or provided for in the December Balance
Sheet;
(ii) liabilities incurred in the ordinary course of business
consistent with past practice since the Balance Sheet Date, which in the
aggregate are not materially greater than those reflected in the December
Balance Sheet;
(iii) liabilities arising under or in connection with the Agreement.
SECTION 11. Litigation. There is no action, suit, investigation or
proceeding (or to the Company's knowledge, any basis therefor) pending against,
or to the knowledge of the Company threatened against or affecting, the Company,
its subsidiaries or any of their properties before any court or arbitrator or
any governmental body, agency or official which, if determined
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or resolved adversely to the Company or a subsidiary, could reasonably be
expected to have a Material Adverse Effect or which in any manner challenges or
seeks to prevent, enjoin, alter or materially delay the Offer or Merger or any
of the other transactions contemplated hereby.
SECTION 12. Taxes. The Company and its subsidiaries have filed all
federal income and other tax returns required to be filed by any of them and
have paid (or the Company has paid on behalf of its subsidiaries), or have set
up an adequate reserve (in accordance with generally accepted accounting
principles) for the payment of, all taxes shown to be due on such returns and
the December Balance Sheet reflects an adequate reserve for all taxes payable by
the Company accrued through December 31, 1994. The Company is not delinquent in
the payment of any material tax, assessment or governmental charge. No material
deficiencies for any taxes have been proposed, asserted or assessed in writing
against the Company or its subsidiaries. For the purposes of this Agreement,
the term "tax" shall include all federal, state, local and foreign income,
property, sales, excise and other taxes of any nature whatsoever. Neither the
Company nor any member of any affiliated or combined group of which the Company
is or has been a member has granted any extension or waiver of the limitation
period applicable to any tax returns. There are no Liens for taxes upon the
assets of the Company, except Liens for current taxes not yet due. The Company
will not be required under Section 481(c) of the Internal Revenue Code of 1986,
as amended (the "Code"), to include any adjustment in taxable income for any
period subsequent to the Merger. The Company has delivered to the Parent copies
of its federal, state and local income and franchise tax returns for the years
ended December 31, 1991, 1992 and 1993. The Company has not been a United
States real property holding corporation within the meaning of Code Sec.
897(c)(2) during the applicable period specified in Code Sec. 897(c)(1)(A)(ii).
Each of the Company and its subsidiaries has disclosed on its federal income tax
returns all positions taken therein that could give rise to a substantial
understatement of federal income tax within the meaning of Code Sec. 6662. None
of the Company or its subsidiaries is a party to any tax allocation or sharing
agreement. None of the Company or its subsidiaries (A) has been a member of an
affiliated group filing a consolidated federal income tax return (other than a
group the common parent of which was the Company or a subsidiary of the Company)
or (B) has any liability for the taxes of any person (other than any of the
Company and its subsidiaries) under Treas. Reg. (S) 1.1502-6 (or any similar
provision of state, local, or foreign law), as a transferee or successor, by
contract, or otherwise.
SECTION 13. ERISA. (a) The Writing identifies each "employee
benefit plan," as defined in Section 3(3) of the Employee Retirement Income
Security Act of 1974, as amended ("ERISA"), which (i) is subject to any
provision of ERISA, (ii) is maintained, administered or contributed to by the
Company or any affiliate (as defined below) and (iii) covers any employee or
former employee of the Company or any affiliate or under which the Company or
any affiliate has any liability. Copies of such plans (and, if applicable,
related trust agreements) and all amendments thereto and any written
interpretations thereof have been furnished to the Parent together, if
applicable, with (x) the three most recent annual reports (Form 5500 including,
if applicable, Schedule B thereto) prepared in connection with any such plan and
(y) the most recent actuarial valuation report prepared in connection with any
such plan. Such plans are referred to collectively herein as the "Employee
Plans." For purposes of this Section, "affiliate" of any Person means any other
Person which, together with such Person, would be treated as a
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<PAGE>
single employer under Section 414 of the Code. For purposes of this Annex B,
"Person" means any individual, corporation, partnership, association, trust, or
other entity or organization, including a governmental or political subdivision
or an agency or institution thereof.
(b) There are no Employee Plans subject to Title IV of ERISA, other
than multiemployer plans as defined in Section 4001(a)(3) of ERISA
("Multiemployer Plans"). The Company has provided the Parent with a list of all
Multiemployer Plans to which the Company or any active subsidiary presently has
any obligation to contribute. Neither the Company nor any affiliate has any
outstanding liability to any Multiemployer Plan for delinquent contributions, or
for withdrawal liability pursuant to Section 4201 of ERISA.
(c) There are no Employee Plans which are intended to be qualified
under Section 401(a) of the Code. Each Employee Plan has been maintained in all
material respects in compliance with its terms and with the requirements
prescribed by any and all statutes, orders, rules and regulations, which are
applicable to such Plan.
(d) There is no contract, agreement, plan or arrangement covering any
employee or former employee of the Company or any affiliate that, individually
or collectively, could give rise to the payment of any amounts that would not be
deductible pursuant to the provisions of Section 280G of the Code.
(e) The Writing contains a list of each employment, severance or other
similar contract, arrangement or policy and each plan or arrangement (written or
oral) providing for insurance coverage (including any self-insured
arrangements), workers' compensation, disability benefits, supplemental
unemployment benefits, vacation benefits, retirement benefits or for deferred
compensation, profit-sharing, bonuses, stock options, stock appreciation rights
or other forms of incentive compensation or post-retirement insurance,
compensation or benefits which (i) is not an Employee Plan, (ii) is entered
into, maintained or contributed to, as the case may be, by the Company or any of
its affiliates and (iii) covers any employee or former employee of the Company
or any of its affiliates. Such contracts, plans and arrangements as are
described above, copies or descriptions of all of which have been furnished
previously to the Parent, are referred to collectively herein as the "Benefit
Arrangements." Each Benefit Arrangement has been maintained in substantial
compliance with its terms and with the requirements prescribed by any and all
statutes, orders, rules and regulations that are applicable to such Benefit
Arrangement.
(f) Neither the Company nor any affiliate has or maintains or has
maintained any Employee Plan or Benefit Arrangement providing post-retirement
health or medical benefits in respect of any active or former employee of the
Company or any affiliate or former affiliate.
(g) There has been no amendment to, written interpretation or
announcement (whether or not written) by the Company or any of its affiliates
relating to, or change in employee participation or coverage under, any Employee
Plan or Benefit Arrangement which would increase materially the expense of
maintaining such Employee Plan or Benefit Arrangement above the level of the
expense incurred in respect thereof for the fiscal year ended on the Balance
Sheet Date.
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(h) The Company is not a party to or subject to any union contract or
any express employment contract or arrangement providing for annual future
compensation of, or benefits or other similar payments to, any officer,
consultant, director or employee in excess of $50,000.
SECTION 14. Material Contracts. (a) Except for agreements,
contracts, plans, leases, arrangements or commitments disclosed in the Company's
SEC filings referred to in Section 5 or as previously disclosed in the Writing,
the Company is not a party to or subject to:
(i) any lease relating to real property or any other lease
providing for annual rentals in excess of $100,000;
(ii) any agreement for the purchase of materials, supplies, goods,
services, equipment or other assets providing for annual payments by the Company
in excess of $100,000, other than in the ordinary course of business consistent
with past practice;
(iii) any sales, distribution or other similar agreement providing
for the sale by the Company of materials, supplies, goods, services, equipment
or other assets that provides for annual payments to the Company in excess of
$100,000, other than in the ordinary course of business consistent with past
practice;
(iv) any partnership, joint venture, or other similar contract,
arrangement or agreement;
(v) any contract relating to indebtedness for borrowed money or the
deferred purchase price of property (whether incurred, assumed, guaranteed or
secured by any asset) in excess of $100,000, except in the ordinary course of
business consistent with past practice;
(vi) any license agreements, franchise agreements or agreements in
respect of similar rights granted to or held by the Company;
(vii) any agency, dealer, sales representative or other similar
agreement;
(viii) any contract or other document that substantially limits the
freedom of the Company to compete in any line of business or with any Person or
in any area or which would so limit the freedom of the Company after the
Effective Time (as that term is defined in the Agreement); or
(ix) any other contract or commitment not made in the ordinary
course of business which is material to the Company.
(b) All agreements, contracts, plans, leases, arrangements and
commitments disclosed in the Company's SEC filings referred to in Section 5 or
disclosed or required to be disclosed pursuant to this Annex (the "Material
Contracts") are valid and binding agreements of the Company, are in full force
and effect, and neither the Company nor, to the knowledge of the
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<PAGE>
Company, any other party thereto is in default in any respect under the terms of
any such agreement, contract, plan, lease, arrangement or commitment, except, in
all cases, such as could not reasonably be expected to have a Material Adverse
Effect.
SECTION 15. Insurance Coverage. The Company has made available to
the Parent true and complete copies of, all insurance policies and fidelity
bonds covering the assets, business, equipment, properties, operations,
employees, officers and directors of the Company. There is no claim by the
Company pending under any of such policies or bonds as to which coverage has
been questioned, denied or disputed by the underwriters of such policies or
bonds. All premiums due and payable under all such policies and bonds have been
paid and the Company is otherwise in full compliance with the terms and
conditions of all such policies and bonds. Such policies of insurance and bonds
(or other policies and bonds providing substantially similar insurance coverage)
are in full force and effect. Except as previously disclosed by the Company to
the Parent in writing, the Company does not know of any threatened termination
of, or premium increase with respect to, any of such policies or bonds.
SECTION 16. Compliance with Laws. The Company is not in violation
of, and has not materially violated, any applicable provisions of any laws,
statutes, ordinances or regulations material to the conduct of the business of
the Company as currently conducted, except in all cases, such as could not
reasonably be expected to have a Material Adverse Effect.
SECTION 17. Investment Banking Fees. There is no investment banker,
broker, finder or other similar intermediary which has been retained by, or is
authorized by, the Company to act on behalf of the Company who might be entitled
to any fee or commission from the Company, the Parent and the Sub or any of
their respective affiliates upon consummation of the transactions contemplated
by this Agreement, except Allen & Company Incorporated and Guilford Securities,
Inc. Copies of the Company's agreements with these firms have been furnished to
Parent.
SECTION 18. Intellectual Property. (a) The Company has listed in
the Writing all inventions which are the subject of issued letters patent or an
application therefor, all trade and service marks which have been registered or
for which an application for registration is pending and all writings for which
a claim for copyright has been recorded or is pending, in each case which are
owned by and used or held for use by the Company (collectively, the
"Intellectual Property Rights"), specifying as to each, as applicable: (i) the
nature of such Intellectual Property Right; (ii) the owner of such Intellectual
Property Right; (iii) the jurisdictions by or in which such Intellectual
Property Right has been issued or registered or in which an application for such
issuance or registration has been filed, including the respective registration
or application numbers; and (iv) material licenses, sublicenses and other
agreements as to which the Company or any of its affiliates is a party and
pursuant to which any Person is authorized to use such Intellectual Property
Right including the identity of all parties thereto, a description of the nature
and subject matter thereof, the applicable royalty and the term thereof.
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<PAGE>
(b) The Company holds all licenses for Intellectual Property Rights
owned by another Person materially necessary to the conduct of its business as
currently conducted, except such as could not reasonably be expected to have a
Material Adverse Effect.
(c) The Company (i) during the three years preceding the date of this
Agreement has not been sued or charged in writing with or been a defendant in
any claim, suit, action or proceeding relating to its business which has not
been finally terminated prior to the date hereof and which involves a claim of
infringement of any patents, trademarks, service marks or copyrights, (ii) has
no knowledge of any other claim or infringement by the Company or (iii) has no
knowledge of any continuing infringement by any other Person of any Intellectual
Property Rights. No Intellectual Property Right is subject to any outstanding
order, judgment, decree, stipulation or agreement restricting the use thereof by
the Company or restricting the licensing thereof by the Company to any Person.
The Company has not entered into any agreement to indemnify any other Person
against any charge of infringement of any patent, trademark, service mark or
copyright.
SECTION 19. Environmental Compliance. Except in all cases as in the
aggregate have not had and could not reasonably be expected to have a Material
Adverse Effect, the Company and each of its subsidiaries (i) have obtained all
permits, licenses and other authorizations which are required under Federal,
state or local laws relating to pollution or protection of the environment,
including laws relating to emissions, discharges, releases or threatened
releases of pollutants, contaminants, or hazardous or toxic materials or wastes
into ambient air, surface water, ground water, or land or otherwise relating to
the manufacture, processing, distribution, use, treatment, storage, disposal,
transport, or handling of pollutants, contaminants or hazardous or toxic
materials or wastes; (ii) are in compliance with all terms and conditions of
such required permits, licenses and authorizations, and also are in compliance
with other limitations, restrictions, conditions, standards, prohibitions,
requirements, obligations, schedules and timetables contained in such laws or
contained in any regulation, code, order, decree or judgment, issued, entered or
promulgated thereunder; (iii) as of the date of the Agreement, are not aware of
nor have received notice of any event, condition, circumstance, activity,
practice, incident, action or plan which is reasonably likely to interfere with
or prevent continued compliance or which would give rise to any common law or
statutory liability, or otherwise form the basis of any claim, action, suit or
proceeding, based on or resulting from the Company's or any of its subsidiary's
manufacture, processing, distribution, use, treatment, storage, disposal,
transport, or handling, or the emission, discharge, or release into the
environment, of any pollutant, contaminant, or hazardous or toxic material or
waste; and (iv) have taken all actions necessary under applicable requirements
of Federal, state or local laws, rules or regulations to register any products
or materials required to be registered thereunder.
SECTION 20. Information Supplied. None of the information supplied
or to be supplied by the Company for inclusion in (i) the Schedule 14D-9 and
(ii), insofar as it relates to the Company, the Offer, will 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.
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SECTION 21. Delaware Corporation Law, etc. The board of directors of
the Company has unanimously approved the Offer, the Merger, the agreements of
any stockholders to tender Shares (the "Stock Tender Agreements") and the
consummation of the transactions contemplated hereby and thereby and such
approval is sufficient to render inapplicable the prohibitions of Section 203 of
the General Corporation Law of the State of Delaware with respect to the Offer
and the Merger. To the best of the Company's knowledge, no other state takeover
statute applies to the Offer, the Merger or the Stock Tender Agreements (and the
Company covenants to use all reasonable efforts to take all action necessary to
ensure that the same are inapplicable to the Offer, the Merger and the Stock
Tender Agreements and the transactions contemplated thereby).
SECTION 22. Real Estate. Except as disclosed in the Writing,
(a) The real estate owned ("Real Estate") or leased (the "Leasehold
Premises") by the Company is as described in the Company's Annual Report on Form
10-K for the year ended December 31, 1993.
(b) The buildings located on the Real Estate and the Leasehold
Premises are each in good operating condition, normal wear, tear and maintenance
down-time excepted, and are in the aggregate sufficient to satisfy the Company's
current operating levels.
(c) Each parcel of the Real Estate and the Leasehold Premises: (i)
has direct access to public roads or access to public roads by means of a
perpetual access easement, such access being sufficient to satisfy the current
and reasonably anticipated normal transportation requirements of the Company's
business as presently conducted at such parcel; and (ii) is served by all
utilities, including but not limited to water, electricity, natural gas, sewer
and telephone, in such quantity and quality as are sufficient to satisfy the
current normal production levels and business activities of the Company's
business as conducted at such parcel.
(d) The Company has received no notice of: (i) any condemnation
proceeding with respect to any portion of the Real Estate or the Leasehold
Premises, and to the best of its knowledge no proceeding is contemplated by any
governmental authority; or (ii) any special assessment which may affect the Real
Estate or the Leasehold Premises, and to the best of its knowledge no such
special assessment is contemplated by any governmental authority.
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EXHIBIT (c)(2)
STOCK TENDER AGREEMENT
STOCK TENDER AGREEMENT, dated as of March 17, 1995 (the "Agreement"), among
Allen & Company Incorporated, a New York corporation (the "Stockholder"), Waste
Management, Inc., an Illinois corporation ("Parent") and WMI Acquisition Sub,
Inc., a Delaware corporation and a wholly owned subsidiary of Parent ("Buyer").
WHEREAS, Buyer, and Resource Recycling Technologies, Inc., a Delaware
corporation (the "Company") propose to enter into an Agreement and Plan of
Merger dated the date hereof (the "Acquisition Agreement") which provides, among
other things, that Buyer shall commence an all cash tender offer to purchase any
and all shares of common stock of the Company at a purchase price of $11.50 per
share (the "Offer", which term shall include any amendment thereof not in
violation of the Acquisition Agreement), to purchase any and all of the issued
and outstanding shares of Company's Common Stock, par value $1.00 per share
("Common Stock"), and shall merge Buyer with and into the Company (the
"Merger"), in each case upon the terms and subject to the conditions set forth
in the Acquisition Agreement (any term used herein without definition shall have
the definition ascribed thereto in the Acquisition Agreement);
WHEREAS, as of the date hereof, the Stockholder beneficially owns 664,806
shares of Common Stock (the "Stockholder's Shares");
WHEREAS, as a condition to the willingness of the Company and Buyer to
enter into the Acquisition Agreement, and as an inducement to them to do so, the
Stockholder has agreed for the benefit of the Company and Buyer to tender the
Stockholder's Shares, and any other shares of Common Stock at any time during
the term of this Agreement held by Stockholder, in response to the Offer on the
terms and conditions contained in this Agreement; and
WHEREAS, the Board of Directors of the Company has approved the Acquisition
Agreement, the Offer, the Merger and this Agreement.
NOW THEREFORE, in consideration of the representations, warranties,
covenants and agreements contained in this Agreement the parties hereby agree as
follows:
ARTICLE 1
TENDER OFFER
SECTION 1.1. Tender of Shares. (a) Within five (5) business days of the
commencement by the Buyer of the Offer the Stockholder shall tender to the
depositary (the "Depositary") designated in the Offer to Purchase (the "Offer to
Purchase") distributed by the Buyer in connection with the Offer (i) a letter of
transmittal with respect to the Stockholder's Shares and any other shares of
Common Stock held by the Stockholder (such shares being referred to herein as
the "Shares"), complying with the terms of the Offer to Purchase, together
<PAGE>
with instructions directing the Depositary to make payment for such Shares
directly to the Stockholder (but if such Shares are not accepted for payment and
are to be returned pursuant to the Offer to Purchase, to return such Shares to
Stockholder), (ii) the certificates representing the Shares and/or (iii) all
other documents or instruments required to be delivered pursuant to the terms of
the Offer to Purchase (such documents in clauses (i) through (iii) collectively
being hereinafter referred to as the "Tender Documents").
(b) The Stockholder will not, subject to applicable law, withdraw the
tender effected in accordance with Section 1.1.(a); provided, however, that the
Stockholder may decline to tender, or may withdraw, any and all Shares if (A)
the amount or form of consideration to be paid for such Shares is less than cash
in the amount of $11.50 per Share, net to the Stockholder in cash, (B) the
Acquisition Agreement is terminated, or (C) the Board of Directors of the
Company has withdrawn its recommendation of the Offer pursuant to Section
6.1(c)(ii) of the Acquisition Agreement, provided that if such withdrawal of a
recommendation occurs and the Board of Directors subsequently recommends an
offer by Buyer or an affiliate of Buyer for a consideration per Share greater
than $11.50 per Share, the Stockholder agrees to re-tender any Shares it has
withdrawn, whereupon all the terms of this Agreement shall be revived and
applicable to such Shares.
SECTION 1.2. Additional Shares. Any Shares of Common Stock acquired by
the Stockholder after the date hereof and prior to the termination of this
Agreement, whether upon the exercise of options or by means of purchase,
distribution, dividend or otherwise, shall be immediately tendered by the
Stockholder and shall constitute "Shares" subject to the terms of this
Agreement.
SECTION 1.3. No Purchase. Buyer may allow the Offer to expire without
accepting for payment or paying for any Shares, as set forth in the Offer to
Purchase, without purchasing all or any Shares pursuant thereto. If any Shares
are not accepted for payment in accordance with the terms of the Offer to
Purchase, they shall be returned to Stockholder, whereupon they shall continue
to be held by Stockholder subject to the terms and conditions of this Agreement.
SECTION 1.4. Restrictions. Except as contemplated by Section 1.1 hereof
and so long as the Board of Directors of the Company has not withdrawn its
recommendation of the Offer pursuant to Section 6.1(c)(ii) of the Acquisition
Agreement, Stockholder shall not, directly or indirectly: (i) offer for sale,
sell, transfer, tender, pledge, encumber, assign or otherwise dispose of, or
enter into any contract, option or other arrangement or understanding with
respect to or consent to the offer for sale, sale, transfer, tender, pledge,
encumbrance, assignment or other disposition of, any or all of Stockholder's
Shares or any interest therein; (ii) grant any proxies or powers of attorney,
deposit any Shares into a voting trust or enter into a voting agreement with
respect to any Shares; or (iii) other than as may be permitted to the Company by
Section 4.6 of the Acquisition Agreement, solicit, initiate or knowingly promote
any party other than Buyer or an affiliate of Buyer to acquire or offer to
acquire the Company, any of its Common Stock or a material portion of the assets
or business of the Company or any of its subsidiaries.
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<PAGE>
ARTICLE 2
REPRESENTATIONS, WARRANTIES AND COVENANTS OF STOCKHOLDER
Stockholder represents, warrants and covenants to the Buyer that:
SECTION 2.1. Ownership. The Stockholder is the sole, true, lawful and
beneficial owner of the Stockholder's Shares with no restriction on voting
rights or rights of disposition pertaining to the Shares, and does not currently
beneficially own any other Shares. Stockholder will convey good and valid title
to the Shares being purchased pursuant to the Offer or the Merger, as the case
may be, free and clear of any and all claims, liens, charges, encumbrances and
security interests. Except as contemplated hereby, none of the Shares is
subject to any voting trust or other agreement or arrangement with respect to
the voting of such Shares.
SECTION 2.2. Non-Contravention. The execution, delivery and performance
by Stockholder of this Agreement and the consummation of the transactions
contemplated hereby (i) is within Stockholder's powers, have been duly
authorized by all necessary action (including any consultation, approval or
other action by or with any other person), (ii) require no action in respect of,
or filing with, any governmental body, agency, official or authority (except as
may be required under the Hart-Scott-Rodino Antitrust Improvements Act of 1976
or the Securities Exchange Act of 1934), and (iii) do not and will not
contravene or constitute a default under, or give rise to a right of
termination, cancellation or acceleration of any right or obligation of the
Stockholder or to a loss of any benefit of Stockholder under any provision of
applicable law or regulation or of any agreement, judgment, injunction, order,
decree, or other instrument binding on Stockholder or result in the imposition
of any lien on any asset of Stockholder.
SECTION 2.3. Binding Effect. This Agreement has been duly executed and
delivered by Stockholder and is the valid and binding agreement of Stockholder,
enforceable against Stockholder in accordance with its terms, except as
enforcement may be limited by bankruptcy, insolvency, moratorium or other
similar laws relating to creditors' rights generally.
ARTICLE 3
REPRESENTATIONS, WARRANTIES AND COVENANTS OF BUYER
Buyer represents, warrants and covenants to Stockholder that:
SECTION 3.1. Corporate Power and Authority. Buyer has all requisite
corporate power and authority to enter into this Agreement and to perform its
obligations hereunder. The execution, delivery and performance by Buyer of this
Agreement and the consummation by Buyer of the transactions contemplated hereby
have been duly authorized by the Board of Directors of Buyer and no other
corporate action on the part of Buyer is necessary to authorize the execution,
delivery and performance by Buyer of this Agreement and the consummation by
Buyer of the transactions contemplated hereby.
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SECTION 3.2. Binding Effect. This Agreement has been duly executed and
delivered by Buyer and is a valid and binding agreement of Buyer, enforceable
against Buyer in accordance with its terms, except as enforcement may be limited
by bankruptcy, insolvency, moratorium or other similar laws relating to
creditors' rights generally.
SECTION 3.3. Acquisition for Buyer's Account. Any Shares to be acquired
upon consummation of the Offer will be acquired by Buyer for its own account and
not with a view to the public distribution thereof and will not be transferred
except in compliance with the Securities Act of 1933.
ARTICLE 4
MISCELLANEOUS
SECTION 4.1. Expenses. Each party will pay its own costs and expenses
incurred in connection with this Agreement.
SECTION 4.2. Additional Agreements. Subject to the terms and conditions
of this Agreement, each of the parties hereto agrees to 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 and which may be required under any agreements, contracts,
commitments, instruments, understandings, arrangements or restrictions of any
kind to which such party is a party or by which such party is governed or bound,
to consummate and make effective the transactions contemplated by this
Agreement.
SECTION 4.3. Notice. All notices, requests, claims, demands and other
communications hereunder shall be deemed to have been duly given when delivered
in person, by telecopy, or by registered or certified mail (postage prepaid,
return receipt requested) to such party at its address set forth on the
signature page hereto.
SECTION 4.4. Amendments; Termination. This Agreement may not be modified,
amended, altered or supplemented, except upon the execution and delivery of a
written agreement executed by the parties thereto. This Agreement will
terminate upon the termination of the Acquisition Agreement in accordance with
its terms.
SECTION 4.5. Successors and Assigns. The provisions of this Agreement
shall be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns, provided, however, that Buyer may assign its
rights and obligations to another wholly owned subsidiary of Buyer who is the
assignee of Buyer's rights under the Acquisition Agreement, and provided,
further, that except as set forth in the prior clause, a party may not assign,
delegate or otherwise transfer any of its rights or obligations under this
Agreement without the consent of the other parties hereto.
SECTION 4.6. Governing Law. This Agreement shall be construed in
accordance with and governed by the law of Delaware without giving effect to the
principles of conflicts of laws thereof.
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SECTION 4.7. Counterparts; Effectiveness. This Agreement may be signed in
any number of counterparts, each of which shall be an original, with the same
effect as if the signatures thereto and hereto were upon the same instrument.
This Agreement shall become effective when each party hereto shall have received
counterparts hereof signed by all of the other parties hereto.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the day and year first above written.
WASTE MANAGEMENT, INC.
/s/ JOSEPH M. HOLSTEN
By:____________________________________
Name: Joseph M. Holsten
Title: Executive Vice President
3003 Butterfield Road
Oak Brook, Illinois 60521
Attention: General Counsel
WMI ACQUISITION SUB, INC.
/s/ JOSEPH M. HOLSTEN
By:____________________________________
Name: Joseph M. Holsten
Title: Vice President
c/o Waste Management, Inc.
3003 Butterfield Road
Oak Brook, Illinois 60521
Attention: General Counsel
ALLEN & COMPANY INCORPORATED
/s/ STEVEN J. GREENFIELD
By:____________________________________
Name: Steven J. Greenfield
Title: Vice President
711 Fifth Avenue
New York, New York 10022
5
<PAGE>
EXHIBIT (c)(3)
STOCK TENDER AGREEMENT
STOCK TENDER AGREEMENT, dated as of March 17, 1995 (the "Agreement"), among
Andrew T. Dwyer (the "Stockholder"), Waste Management, Inc., an Illinois
corporation ("Parent") and WMI Acquisition Sub, Inc., a Delaware corporation and
a wholly owned subsidiary of Parent ("Buyer").
WHEREAS, Buyer, and Resource Recycling Technologies, Inc., a Delaware
corporation (the "Company") propose to enter into an Agreement and Plan of
Merger dated the date hereof (the "Acquisition Agreement") which provides, among
other things, that Buyer shall commence an all cash tender offer to purchase any
and all shares of common stock of the Company at a purchase price of $11.50 per
share (the "Offer", which term shall include any amendment thereof not in
violation of the Acquisition Agreement), to purchase any and all of the issued
and outstanding shares of Company's Common Stock, par value $1.00 per share
("Common Stock"), and shall merge Buyer with and into the Company (the
"Merger"), in each case upon the terms and subject to the conditions set forth
in the Acquisition Agreement (any term used herein without definition shall have
the definition ascribed thereto in the Acquisition Agreement);
WHEREAS, as of the date hereof, the Stockholder beneficially owns
267,700/1/ shares of Common Stock (the "Stockholder's Shares");
WHEREAS, as a condition to the willingness of the Company and Buyer to
enter into the Acquisition Agreement, and as an inducement to them to do so, the
Stockholder has agreed for the benefit of the Company and Buyer to tender the
Stockholder's Shares, and any other shares of Common Stock at any time during
the term of this Agreement held by Stockholder, in response to the Offer on the
terms and conditions contained in this Agreement; and
WHEREAS, the Board of Directors of the Company has approved the Acquisition
Agreement, the Offer, the Merger and this Agreement.
NOW THEREFORE, in consideration of the representations, warranties,
covenants and agreements contained in this Agreement the parties hereby agree as
follows:
- -------------------
/1/ Consists of 116,800 Shares owned directly, 13,600 Shares owned by
Stockholder's wife, 18,000 Shares owned by each of his three minor children,
3,300 Shares owned by a family trust of which he is a trustee and beneficiary
and 80,000 Shares subject to stock options (40,000 of which are currently
exercisable and 40,000 of which will be exercisable on consummation of the
Offer). Stockholder need only initially tender the non-option Shares.
<PAGE>
ARTICLE 1
TENDER OFFER
SECTION 1.1. Tender of Shares. (a) Within five (5) business days of the
commencement by the Buyer of the Offer the Stockholder shall tender to the
depositary (the "Depositary") designated in the Offer to Purchase (the "Offer to
Purchase") distributed by the Buyer in connection with the Offer (i) a letter of
transmittal with respect to the Stockholder's Shares and any other shares of
Common Stock held by the Stockholder (such shares being referred to herein as
the "Shares"), complying with the terms of the Offer to Purchase, together with
instructions directing the Depositary to make payment for such Shares directly
to the Stockholder (but if such Shares are not accepted for payment and are to
be returned pursuant to the Offer to Purchase, to return such Shares to
Stockholder), (ii) the certificates representing the Shares and/or (iii) all
other documents or instruments required to be delivered pursuant to the terms of
the Offer to Purchase (such documents in clauses (i) through (iii) collectively
being hereinafter referred to as the "Tender Documents").
(b) The Stockholder will not, subject to applicable law, withdraw the
tender effected in accordance with Section 1.1.(a); provided, however, that the
Stockholder may decline to tender, or may withdraw, any and all Shares if (A)
the amount or form of consideration to be paid for such Shares is less than cash
in the amount of $11.50 per Share, net to the Stockholder in cash, (B) the
Acquisition Agreement is terminated, or (C) the Board of Directors of the
Company has withdrawn its recommendation of the Offer pursuant to Section
6.1(c)(ii) of the Acquisition Agreement, provided that if such withdrawal of a
recommendation occurs and the Board of Directors subsequently recommends an
offer by Buyer or an affiliate of Buyer for a consideration per Share greater
than $11.50 per Share, the Stockholder agrees to re-tender any Shares it has
withdrawn, whereupon all the terms of this Agreement shall be revived and
applicable to such Shares.
SECTION 1.2. Additional Shares. Any Shares of Common Stock acquired by
the Stockholder after the date hereof and prior to the termination of this
Agreement, whether upon the exercise of options or by means of purchase,
distribution, dividend or otherwise, shall be immediately tendered by the
Stockholder and shall constitute "Shares" subject to the terms of this
Agreement.
SECTION 1.3. No Purchase. Buyer may allow the Offer to expire without
accepting for payment or paying for any Shares, as set forth in the Offer to
Purchase, without purchasing all or any Shares pursuant thereto. If any Shares
are not accepted for payment in accordance with the terms of the Offer to
Purchase, they shall be returned to Stockholder, whereupon they shall continue
to be held by Stockholder subject to the terms and conditions of this Agreement.
SECTION 1.4. Restrictions. Except as contemplated by Section 1.1 hereof
and so long as the Board of Directors of the Company has not withdrawn its
recommendation of the Offer pursuant to Section 6.1(c)(ii) of the Acquisition
Agreement, Stockholder shall not, directly or indirectly: (i) offer for sale,
sell, transfer, tender, pledge, encumber, assign or otherwise dispose of, or
enter into any contract, option or other arrangement or understanding with
respect to or
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<PAGE>
consent to the offer for sale, sale, transfer, tender, pledge, encumbrance,
assignment or other disposition of, any or all of Stockholder's Shares or any
interest therein; (ii) grant any proxies or powers of attorney, deposit any
Shares into a voting trust or enter into a voting agreement with respect to any
Shares; or (iii) other than as may be permitted to the Company by Section 4.6 of
the Acquisition Agreement, solicit, initiate or knowingly promote any party
other than Buyer or an affiliate of Buyer to acquire or offer to acquire the
Company, any of its Common Stock or a material portion of the assets or business
of the Company or any of its subsidiaries.
ARTICLE 2
REPRESENTATIONS, WARRANTIES AND COVENANTS OF STOCKHOLDER
Stockholder represents, warrants and covenants to the Buyer that:
SECTION 2.1. Ownership. The Stockholder is the sole, true, lawful and
beneficial owner of the Stockholder's Shares with no restriction on voting
rights or rights of disposition pertaining to the Shares, and does not currently
beneficially own any other Shares. Stockholder will convey good and valid title
to the Shares being purchased pursuant to the Offer or the Merger, as the case
may be, free and clear of any and all claims, liens, charges, encumbrances and
security interests. Except as contemplated hereby, none of the Shares is
subject to any voting trust or other agreement or arrangement with respect to
the voting of such Shares.
SECTION 2.2. Non-Contravention. The execution, delivery and performance
by Stockholder of this Agreement and the consummation of the transactions
contemplated hereby (i) is within Stockholder's powers, have been duly
authorized by all necessary action (including any consultation, approval or
other action by or with any other person), (ii) require no action in respect of,
or filing with, any governmental body, agency, official or authority (except as
may be required under the Hart-Scott-Rodino Antitrust Improvements Act of 1976
or the Securities Exchange Act of 1934), and (iii) do not and will not
contravene or constitute a default under, or give rise to a right of
termination, cancellation or acceleration of any right or obligation of the
Stockholder or to a loss of any benefit of Stockholder under any provision of
applicable law or regulation or of any agreement, judgment, injunction, order,
decree, or other instrument binding on Stockholder or result in the imposition
of any lien on any asset of Stockholder.
SECTION 2.3. Binding Effect. This Agreement has been duly executed and
delivered by Stockholder and is the valid and binding agreement of Stockholder,
enforceable against Stockholder in accordance with its terms, except as
enforcement may be limited by bankruptcy, insolvency, moratorium or other
similar laws relating to creditors' rights generally.
3
<PAGE>
ARTICLE 3
REPRESENTATIONS, WARRANTIES AND COVENANTS OF BUYER
Buyer represents, warrants and covenants to Stockholder that:
SECTION 3.1. Corporate Power and Authority. Buyer has all requisite
corporate power and authority to enter into this Agreement and to perform its
obligations hereunder. The execution, delivery and performance by Buyer of this
Agreement and the consummation by Buyer of the transactions contemplated hereby
have been duly authorized by the Board of Directors of Buyer and no other
corporate action on the part of Buyer is necessary to authorize the execution,
delivery and performance by Buyer of this Agreement and the consummation by
Buyer of the transactions contemplated hereby.
SECTION 3.2. Binding Effect. This Agreement has been duly executed and
delivered by Buyer and is a valid and binding agreement of Buyer, enforceable
against Buyer in accordance with its terms, except as enforcement may be limited
by bankruptcy, insolvency, moratorium or other similar laws relating to
creditors' rights generally.
SECTION 3.3. Acquisition for Buyer's Account. Any Shares to be acquired
upon consummation of the Offer will be acquired by Buyer for its own account and
not with a view to the public distribution thereof and will not be transferred
except in compliance with the Securities Act of 1933.
ARTICLE 4
MISCELLANEOUS
SECTION 4.1. Expenses. Each party will pay its own costs and expenses
incurred in connection with this Agreement.
SECTION 4.2. Additional Agreements. Subject to the terms and conditions
of this Agreement, each of the parties hereto agrees to 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 and which may be required under any agreements, contracts,
commitments, instruments, understandings, arrangements or restrictions of any
kind to which such party is a party or by which such party is governed or bound,
to consummate and make effective the transactions contemplated by this
Agreement.
SECTION 4.3. Notice. All notices, requests, claims, demands and other
communications hereunder shall be deemed to have been duly given when delivered
in person, by telecopy, or by registered or certified mail (postage prepaid,
return receipt requested) to such party at its address set forth on the
signature page hereto.
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<PAGE>
SECTION 4.4. Amendments; Termination. This Agreement may not be modified,
amended, altered or supplemented, except upon the execution and delivery of a
written agreement executed by the parties thereto. This Agreement will
terminate upon the termination of the Acquisition Agreement in accordance with
its terms.
SECTION 4.5. Successors and Assigns. The provisions of this Agreement
shall be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns, provided, however, that Buyer may assign its
rights and obligations to another wholly owned subsidiary of Buyer who is the
assignee of Buyer's rights under the Acquisition Agreement, and provided,
further, that except as set forth in the prior clause, a party may not assign,
delegate or otherwise transfer any of its rights or obligations under this
Agreement without the consent of the other parties hereto.
SECTION 4.6. Governing Law. This Agreement shall be construed in
accordance with and governed by the law of Delaware without giving effect to the
principles of conflicts of laws thereof.
SECTION 4.7. Counterparts; Effectiveness. This Agreement may be signed in
any number of counterparts, each of which shall be an original, with the same
effect as if the signatures thereto and hereto were upon the same instrument.
This Agreement shall become effective when each party hereto shall have received
counterparts hereof signed by all of the other parties hereto.
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<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the day and year first above written.
WASTE MANAGEMENT, INC.
/s/ JOSEPH M. HOLSTEN
By:____________________________________
Name: Joseph M. Holsten
Title: Executive Vice President
3003 Butterfield Road
Oak Brook, Illinois 60521
Attention: General Counsel
WMI ACQUISITION SUB, INC.
/s/ JOSEPH M. HOLSTEN
By:____________________________________
Name: Joseph M. Holsten
Title: Vice President
3003 Butterfield Road
Oak Brook, Illinois 60521
Attention: General Counsel
STOCKHOLDER
/s/ ANDREW T. DWYER
By:____________________________________
Name: Andrew T. Dwyer
c/o Airlie Group
115 E. Putnam Street
Greenwich, CT 06830
6
<PAGE>
EXHIBIT (c)(4)
STOCK TENDER AGREEMENT
STOCK TENDER AGREEMENT, dated as of March 17, 1995 (the "Agreement"), among
Paul A. Gould (the "Stockholder"), Waste Management, Inc., an Illinois
corporation ("Parent") and WMI Acquisition Sub, Inc., a Delaware corporation and
a wholly owned subsidiary of Parent ("Buyer").
WHEREAS, Buyer, and Resource Recycling Technologies, Inc., a Delaware
corporation (the "Company") propose to enter into an Agreement and Plan of
Merger dated the date hereof (the "Acquisition Agreement") which provides, among
other things, that Buyer shall commence an all cash tender offer to purchase any
and all shares of common stock of the Company at a purchase price of $11.50 per
share (the "Offer", which term shall include any amendment thereof not in
violation of the Acquisition Agreement), to purchase any and all of the issued
and outstanding shares of Company's Common Stock, par value $1.00 per share
("Common Stock"), and shall merge Buyer with and into the Company (the
"Merger"), in each case upon the terms and subject to the conditions set forth
in the Acquisition Agreement (any term used herein without definition shall have
the definition ascribed thereto in the Acquisition Agreement);
WHEREAS, as of the date hereof, the Stockholder beneficially owns 150,000
shares of Common Stock (the "Stockholder's Shares");
WHEREAS, as a condition to the willingness of the Company and Buyer to
enter into the Acquisition Agreement, and as an inducement to them to do so, the
Stockholder has agreed for the benefit of the Company and Buyer to tender the
Stockholder's Shares, and any other shares of Common Stock at any time during
the term of this Agreement held by Stockholder, in response to the Offer on the
terms and conditions contained in this Agreement; and
WHEREAS, the Board of Directors of the Company has approved the Acquisition
Agreement, the Offer, the Merger and this Agreement.
NOW THEREFORE, in consideration of the representations, warranties,
covenants and agreements contained in this Agreement the parties hereby agree as
follows:
ARTICLE 1
TENDER OFFER
SECTION 1.1. Tender of Shares. (a) Within five (5) business days of the
commencement by the Buyer of the Offer the Stockholder shall tender to the
depositary (the "Depositary") designated in the Offer to Purchase (the "Offer to
Purchase") distributed by the Buyer in connection with the Offer (i) a letter of
transmittal with respect to the Stockholder's Shares and any other shares of
Common Stock held by the Stockholder (such shares being referred to herein as
the "Shares"), complying with the terms of the Offer to Purchase, together
<PAGE>
with instructions directing the Depositary to make payment for such Shares
directly to the Stockholder (but if such Shares are not accepted for payment and
are to be returned pursuant to the Offer to Purchase, to return such Shares to
Stockholder), (ii) the certificates representing the Shares and/or (iii) all
other documents or instruments required to be delivered pursuant to the terms of
the Offer to Purchase (such documents in clauses (i) through (iii) collectively
being hereinafter referred to as the "Tender Documents").
(b) The Stockholder will not, subject to applicable law, withdraw the
tender effected in accordance with Section 1.1.(a); provided, however, that the
Stockholder may decline to tender, or may withdraw, any and all Shares if (A)
the amount or form of consideration to be paid for such Shares is less than cash
in the amount of $11.50 per Share, net to the Stockholder in cash, (B) the
Acquisition Agreement is terminated, or (C) the Board of Directors of the
Company has withdrawn its recommendation of the Offer pursuant to Section
6.1(c)(ii) of the Acquisition Agreement, provided that if such withdrawal of a
recommendation occurs and the Board of Directors subsequently recommends an
offer by Buyer or an affiliate of Buyer for a consideration per Share greater
than $11.50 per Share, the Stockholder agrees to re-tender any Shares it has
withdrawn, whereupon all the terms of this Agreement shall be revived and
applicable to such Shares.
SECTION 1.2. Additional Shares. Any Shares of Common Stock acquired by
the Stockholder after the date hereof and prior to the termination of this
Agreement, whether upon the exercise of options or by means of purchase,
distribution, dividend or otherwise, shall be immediately tendered by the
Stockholder and shall constitute "Shares" subject to the terms of this
Agreement.
SECTION 1.3. No Purchase. Buyer may allow the Offer to expire without
accepting for payment or paying for any Shares, as set forth in the Offer to
Purchase, without purchasing all or any Shares pursuant thereto. If any Shares
are not accepted for payment in accordance with the terms of the Offer to
Purchase, they shall be returned to Stockholder, whereupon they shall continue
to be held by Stockholder subject to the terms and conditions of this Agreement.
SECTION 1.4. Restrictions. Except as contemplated by Section 1.1 hereof
and so long as the Board of Directors of the Company has not withdrawn its
recommendation of the Offer pursuant to Section 6.1(c)(ii) of the Acquisition
Agreement, Stockholder shall not, directly or indirectly: (i) offer for sale,
sell, transfer, tender, pledge, encumber, assign or otherwise dispose of, or
enter into any contract, option or other arrangement or understanding with
respect to or consent to the offer for sale, sale, transfer, tender, pledge,
encumbrance, assignment or other disposition of, any or all of Stockholder's
Shares or any interest therein; (ii) grant any proxies or powers of attorney,
deposit any Shares into a voting trust or enter into a voting agreement with
respect to any Shares; or (iii) other than as may be permitted to the Company by
Section 4.6 of the Acquisition Agreement, solicit, initiate or knowingly promote
any party other than Buyer or an affiliate of Buyer to acquire or offer to
acquire the Company, any of its Common Stock or a material portion of the assets
or business of the Company or any of its subsidiaries.
2
<PAGE>
ARTICLE 2
REPRESENTATIONS, WARRANTIES AND COVENANTS OF STOCKHOLDER
Stockholder represents, warrants and covenants to the Buyer that:
SECTION 2.1. Ownership. The Stockholder is the sole, true, lawful and
beneficial owner of the Stockholder's Shares with no restriction on voting
rights or rights of disposition pertaining to the Shares, and does not currently
beneficially own any other Shares. Stockholder will convey good and valid title
to the Shares being purchased pursuant to the Offer or the Merger, as the case
may be, free and clear of any and all claims, liens, charges, encumbrances and
security interests. Except as contemplated hereby, none of the Shares is
subject to any voting trust or other agreement or arrangement with respect to
the voting of such Shares.
SECTION 2.2. Non-Contravention. The execution, delivery and performance
by Stockholder of this Agreement and the consummation of the transactions
contemplated hereby (i) is within Stockholder's powers, have been duly
authorized by all necessary action (including any consultation, approval or
other action by or with any other person), (ii) require no action in respect of,
or filing with, any governmental body, agency, official or authority (except as
may be required under the Hart-Scott-Rodino Antitrust Improvements Act of 1976
or the Securities Exchange Act of 1934), and (iii) do not and will not
contravene or constitute a default under, or give rise to a right of
termination, cancellation or acceleration of any right or obligation of the
Stockholder or to a loss of any benefit of Stockholder under any provision of
applicable law or regulation or of any agreement, judgment, injunction, order,
decree, or other instrument binding on Stockholder or result in the imposition
of any lien on any asset of Stockholder.
SECTION 2.3. Binding Effect. This Agreement has been duly executed and
delivered by Stockholder and is the valid and binding agreement of Stockholder,
enforceable against Stockholder in accordance with its terms, except as
enforcement may be limited by bankruptcy, insolvency, moratorium or other
similar laws relating to creditors' rights generally.
ARTICLE 3
REPRESENTATIONS, WARRANTIES AND COVENANTS OF BUYER
Buyer represents, warrants and covenants to Stockholder that:
SECTION 3.1. Corporate Power and Authority. Buyer has all requisite
corporate power and authority to enter into this Agreement and to perform its
obligations hereunder. The execution, delivery and performance by Buyer of this
Agreement and the consummation by Buyer of the transactions contemplated hereby
have been duly authorized by the Board of Directors of Buyer and no other
corporate action on the part of Buyer is necessary to authorize the execution,
delivery and performance by Buyer of this Agreement and the consummation by
Buyer of the transactions contemplated hereby.
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<PAGE>
SECTION 3.2. Binding Effect. This Agreement has been duly executed and
delivered by Buyer and is a valid and binding agreement of Buyer, enforceable
against Buyer in accordance with its terms, except as enforcement may be limited
by bankruptcy, insolvency, moratorium or other similar laws relating to
creditors' rights generally.
SECTION 3.3. Acquisition for Buyer's Account. Any Shares to be acquired
upon consummation of the Offer will be acquired by Buyer for its own account and
not with a view to the public distribution thereof and will not be transferred
except in compliance with the Securities Act of 1933.
ARTICLE 4
MISCELLANEOUS
SECTION 4.1. Expenses. Each party will pay its own costs and expenses
incurred in connection with this Agreement.
SECTION 4.2. Additional Agreements. Subject to the terms and conditions
of this Agreement, each of the parties hereto agrees to 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 and which may be required under any agreements, contracts,
commitments, instruments, understandings, arrangements or restrictions of any
kind to which such party is a party or by which such party is governed or bound,
to consummate and make effective the transactions contemplated by this
Agreement.
SECTION 4.3. Notice. All notices, requests, claims, demands and other
communications hereunder shall be deemed to have been duly given when delivered
in person, by telecopy, or by registered or certified mail (postage prepaid,
return receipt requested) to such party at its address set forth on the
signature page hereto.
SECTION 4.4. Amendments; Termination. This Agreement may not be modified,
amended, altered or supplemented, except upon the execution and delivery of a
written agreement executed by the parties thereto. This Agreement will
terminate upon the termination of the Acquisition Agreement in accordance with
its terms.
SECTION 4.5. Successors and Assigns. The provisions of this Agreement
shall be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns, provided, however, that Buyer may assign its
rights and obligations to another wholly owned subsidiary of Buyer who is the
assignee of Buyer's rights under the Acquisition Agreement, and provided,
further, that except as set forth in the prior clause, a party may not assign,
delegate or otherwise transfer any of its rights or obligations under this
Agreement without the consent of the other parties hereto.
SECTION 4.6. Governing Law. This Agreement shall be construed in
accordance with and governed by the law of Delaware without giving effect to the
principles of conflicts of laws thereof.
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<PAGE>
SECTION 4.7. Counterparts; Effectiveness. This Agreement may be signed in
any number of counterparts, each of which shall be an original, with the same
effect as if the signatures thereto and hereto were upon the same instrument.
This Agreement shall become effective when each party hereto shall have received
counterparts hereof signed by all of the other parties hereto.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the day and year first above written.
WASTE MANAGEMENT, INC.
/s/ JOSEPH M. HOLSTEN
By:____________________________________
Name: Joseph M. Holsten
Title: Executive Vice President
3003 Butterfield Road
Oak Brook, Illinois 60521
Attention: General Counsel
WMI ACQUISITION SUB, INC.
/s/ JOSEPH M. HOLSTEN
By:____________________________________
Name: Joseph M. Holsten
Title: Vice President
3003 Butterfield Road
Oak Brook, Illinois 60521
Attention: General Counsel
STOCKHOLDER
/s/ PAUL A. GOULD
By:____________________________________
Name: Paul A. Gould
Allen & Company Incorporated
711 Fifth Avenue
New York, New York 10022
5
