AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON NOVEMBER 29, 1994
REGISTRATION STATEMENT NO. 33-56181
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
-------------------
AMENDMENT NO. 1
TO
FORM S-4
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
-------------------
OGDEN CORPORATION
(Exact name of Registrant as specified in its charter)
<TABLE>
<S> <C> <C>
DELAWARE 5812 13-5549268
(State or other jurisdiction (Primary Standard Industrial (I.R.S. Employer
of incorporation or Classification Code Number) Identification Number)
organization)
</TABLE>
-------------------
TWO PENNSYLVANIA PLAZA
NEW YORK, NEW YORK 10121
(212) 868-6100
(Address, including zip code, and telephone number, including area code, of
Registrant's principal executive offices)
LYNDE H. COIT, ESQ.
SENIOR VICE PRESIDENT AND GENERAL COUNSEL
TWO PENNSYLVANIA PLAZA
NEW YORK, NEW YORK 10121
(212) 868-6100
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
-------------------
COPIES TO:
<TABLE>
<S> <C>
VICTOR I. LEWKOW, ESQ. JOHN A. HEALY, ESQ.
WILLIAM F. GORIN, ESQ. ROGERS & WELLS
CLEARY, GOTTLIEB, STEEN & HAMILTON 200 PARK AVENUE
ONE LIBERTY PLAZA NEW YORK, NEW YORK 10166
NEW YORK, NEW YORK 10006 (212) 878-8000
(212) 225-2000
</TABLE>
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: As soon as
practicable after this Registration Statement becomes effective and all other
conditions to the merger (the "Merger") described in the Proxy
Statement/Prospectus forming a part of this Registration Statement have been
satisfied or waived.
If the securities being registered on this form are being offered in
connection with the formation of a holding company and there is compliance with
General Instruction G, check the following box. / /
-------------------
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE SECURITIES AND EXCHANGE COMMISSION, ACTING
PURSUANT TO SAID SECTION 8(A), MAY DETERMINE.
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE>
OGDEN CORPORATION
FORM S-4 CROSS REFERENCE SHEET
CROSS REFERENCE SHEET PURSUANT TO ITEM 501(B) OF REGULATION S-K
<TABLE>
<CAPTION>
CAPTION OR LOCATION IN PROXY
FORM S-4 ITEM NUMBER AND HEADING STATEMENT/PROSPECTUS
-------------------------------------------- --------------------------------------------
<S> <C> <C>
A. INFORMATION ABOUT THE TRANSACTION
1. Forepart of Registration Statement and
Outside Front Cover Page of Prospectus...... Outside Front Cover Page
2. Inside Front and Outside Back Cover Pages of
Prospectus.................................. Inside Front Cover Page; Available
Information; Incorporation of Certain
Information by Reference
3. Risk Factors, Ratio of Earnings to Fixed
Charges, and Other Information.............. Outside Front Cover Page; Summary; Market
Prices of Common Stock; Ogden Corporation
and Subsidiaries Selected Historical
Consolidated Financial Data; Ogden
Projects, Inc. and Subsidiaries Selected
Historical Consolidated Financial Data;
Ogden Corporation and Subsidiaries Pro
Forma Consolidated Condensed Financial
Information; Comparative Per Share Data;
The Special Meeting-Vote Required; The
Merger; The Appraisal Rights Amendment
4. Terms of the Transaction.................... Outside Front Cover Page; Summary; The
Merger; The Merger Agreement; Description
of Ogden Capital Stock; Comparison of
Stockholders' Rights; The Appraisal Rights
Amendment; Exhibit A (Amended and Restated
Agreement and Plan of Merger); Exhibit B
(Form of Certificate of Amendment to OPI's
Third Restated Certificate of Incorporation);
Exhibit C (Delaware General Corporation Law
Section 262) Exhibit D (Opinion of CS First
Boston Corporation)
5. Pro Forma Financial Information............. Ogden Corporation and Subsidiaries Pro Forma
Consolidated Condensed Financial
Information
6. Material Contacts With the Company Being
Acquired.................................... Summary; The Merger
7. Additional Information Required For
Reoffering by Persons and Parties Deemed
to be Underwriters.......................... Not Applicable
8. Interests of Named Experts and Counsel...... Experts; Legal Matters
9. Disclosure of Commission Position on
Indemnification For Securities Act
Liabilities................................. Not Applicable
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
CAPTION OR LOCATION IN PROXY
FORM S-4 ITEM NUMBER AND HEADING STATEMENT/PROSPECTUS
-------------------------------------------- --------------------------------------------
<S> <C> <C>
B. INFORMATION ABOUT THE REGISTRANT
10. Information With Respect to
S-3 Registrants........................... Summary; Ogden Corporation and Subsidiaries
Selected Historical Consolidated Financial
Data; Ogden Corporation and Subsidiaries
Pro Forma Consolidated Condensed Financial
Information
11. Incorporation of Certain Information by
Reference................................... Inside Front Cover Page; Incorporation of
Certain Information by Reference
12. Information With Respect to S-2 or S-3
Registrants................................. Not Applicable
13. Incorporation of Certain Information by
Reference................................... Not Applicable
14. Information With Respect to Registrants
Other Than S-3 or S-2 Registrants........... Not Applicable
C. INFORMATION ABOUT THE
COMPANY BEING ACQUIRED
15. Information With Respect to S-3 Companies... Inside Front Cover Page; Incorporation of
Certain Information by Reference; Summary;
Ogden Projects, Inc. and Subsidiaries
Selected Historical Consolidated Financial
Data
16. Information With Respect to S-2 or S-3
Companies................................... Not Applicable
17. Information With Respect to Companies Other
Than S-2 or S-3 Companies................... Not Applicable
D. VOTING AND MANAGEMENT INFORMATION
18. Information if Proxies, Consents or
Authorizations Are to be Solicited.......... Outside Front Cover Page; Available
Information; Incorporation of Certain
Information by Reference; Summary; The
Special Meeting; The Merger; The Merger
Agreement; Description of Ogden Capital
Stock; Comparison of Stockholders' Rights;
The Appraisal Rights Amendment
19. Information if Proxies, Consents or
Authorizations Are Not to be Solicited, or
in an Exchange Offer........................ Not Applicable
</TABLE>
<PAGE>
OGDEN PROJECTS, INC.
40 LANE ROAD
FAIRFIELD, NEW JERSEY 07007
NOVEMBER 29, 1994
TO OUR STOCKHOLDERS:
You are cordially invited to attend the Special Meeting of Stockholders of
Ogden Projects, Inc. ("OPI"), to be held at the OPI executive offices at 40 Lane
Road, Fairfield, New Jersey 07007, on December 29, 1994 at 10:00 a.m.
At the Special Meeting, OPI stockholders will be asked to consider and vote
upon the following proposals: (i) to approve and adopt an Amended and Restated
Agreement and Plan of Merger, dated as of September 27, 1994 (the "Merger
Agreement"), between OPI and its approximately 84% stockholder, Ogden
Corporation ("Ogden"). Under the Merger Agreement, a wholly-owned Ogden
subsidiary will be merged with OPI (the "Merger"), OPI will become a wholly
owned subsidiary of Ogden and each outstanding share of OPI Common Stock (other
than shares of OPI Common Stock held by Ogden or as to which appraisal rights
(pursuant to the proposal described below) have been duly demanded) will cease
to be outstanding for all purposes and instead will be converted into the right
to receive 0.84 shares (the "Exchange Ratio") of common stock of Ogden; and (ii)
to approve an amendment to the Restated Certificate of Incorporation of OPI to
provide appraisal rights, pursuant to Section 262 of the General Corporation Law
of Delaware, to holders of OPI Common Stock who do not vote in favor of the
Merger and elect to demand appraisal (the "Appraisal Rights Amendment").
Ogden owns 32,000,000 shares of OPI Common Stock, constituting approximately
84% of the outstanding shares of OPI Common Stock, and, therefore, has
sufficient voting power to approve the matters to be considered at the Special
Meeting, regardless of the vote of any other stockholder. Ogden has advised OPI
that it will vote its shares of OPI Common Stock in favor of the Merger and the
Appraisal Rights Amendment. Accordingly, stockholder approval and adoption of
the Merger Agreement and the Appraisal Rights Amendment is assured.
THE BOARD OF DIRECTORS OF OPI (OF WHICH SEVEN OF THE NINE MEMBERS ARE
AFFILIATES OF OGDEN) HAS VOTED UNANIMOUSLY TO APPROVE THE MERGER AGREEMENT AND
THE APPRAISAL RIGHTS AMENDMENT, BASED ON THE RECOMMENDATION OF A SPECIAL
COMMITTEE OF THE BOARD OF DIRECTORS OF OPI CONSISTING OF TWO INDEPENDENT
DIRECTORS (THE "SPECIAL COMMITTEE"), NEITHER OF WHOM IS A DIRECTOR, OFFICER OR
EMPLOYEE OF OGDEN NOR AN OFFICER OR EMPLOYEE OF OPI. IN MAKING ITS
RECOMMENDATION, THE SPECIAL COMMITTEE CAREFULLY REVIEWED AND CONSIDERED THE
TERMS OF THE PROPOSED MERGER AND RELIED UPON THE WRITTEN OPINION OF ITS
FINANCIAL ADVISOR, CS FIRST BOSTON CORPORATION, THAT THE EXCHANGE RATIO IS FAIR,
FROM A FINANCIAL POINT OF VIEW, TO THE STOCKHOLDERS OF OPI (OTHER THAN OGDEN AND
ITS AFFILIATES).
You should read carefully the accompanying Notice of Special Meeting of
Stockholders and the Proxy Statement/Prospectus for details of the Merger and
additional related information.
Whether or not you plan to attend the Special Meeting, please sign, date and
return the enclosed proxy card at your earliest convenience in the enclosed
postage-prepaid envelope. Your shares of stock will be voted in accordance with
the instructions you have given in your proxy. If you attend the Special
Meeting, you may vote in person if you wish, even though you previously have
returned your proxy card. Your prompt cooperation will be greatly appreciated.
PLEASE DO NOT SEND ANY STOCK CERTIFICATES TO OPI AT THIS TIME.
R. RICHARD ABLON
CHAIRMAN AND CHIEF EXECUTIVE OFFICER
<PAGE>
OGDEN PROJECTS, INC.
-------------------
NOTICE OF SPECIAL MEETING OF STOCKHOLDERS
TO BE HELD ON DECEMBER 29, 1994
-------------------
A Special Meeting of Stockholders of Ogden Projects, Inc. ("OPI"), will be
held at the OPI executive offices at 40 Lane Road, Fairfield, New Jersey 07007,
on December 29, 1994, at 10:00 a.m., local time, for the following purposes:
1. To consider and act upon a proposal to approve and adopt an Amended
and Restated Agreement and Plan of Merger, dated as of September 27,
1994 (the "Merger Agreement"), among Ogden Corporation ("Ogden"), OPI
Acquisition Corp., a wholly owned subsidiary of Ogden ("Acquisition
Sub"), and OPI, pursuant to which, among other things, Acquisition Sub
will be merged (the "Merger") with and into OPI, OPI will become a
wholly owned subsidiary of Ogden, and each outstanding share of OPI
common stock, par value $.50 per share ("OPI Common Stock"), other
than shares held by Ogden and its subsidiaries and shares of OPI
Common Stock as to which appraisal rights (pursuant to the proposal
described below) have been duly demanded, will cease to be outstanding
for all purposes and instead will be converted into the right to
receive 0.84 of a share of Ogden common stock, par value $.50 per
share ("Ogden Common Stock"), and, for each whole share of Ogden
Common Stock to be so issued, one Preferred Stock Purchase Right (a
"Right") issued pursuant to the Rights Agreement, dated as of
September 20, 1990, between Ogden and Chemical Bank. THE MERGER IS
MORE COMPLETELY DESCRIBED IN THE ACCOMPANYING PROXY
STATEMENT/PROSPECTUS, AND A COPY OF THE MERGER AGREEMENT IS ATTACHED
AS EXHIBIT A THERETO.
2. To consider and act upon a proposal to approve an amendment to the
Restated Certificate of Incorporation of OPI to provide appraisal
rights, pursuant to Section 262 of the General Corporation Law of
Delaware ("DGCL"), to holders of OPI Common Stock who do not vote in
favor of the Merger (or certain similar transactions) and elect to
demand appraisal in accordance with said Section 262 (the "Appraisal
Rights Amendment"). A COPY OF THE APPRAISAL RIGHTS AMENDMENT AND OF
SECTION 262 OF THE DGCL ARE ATTACHED AS EXHIBITS B AND C,
RESPECTIVELY, TO THE ACCOMPANYING PROXY STATEMENT/PROSPECTUS.
3. To consider and act upon such other matters as may properly come
before the meeting or any adjournment thereof.
The accompanying Proxy Statement/Prospectus and the exhibits thereto,
including the Merger Agreement and the Appraisal Rights Amendment, form a part
of this Notice.
The Board of Directors has fixed the close of business on November 22, 1994,
as the record date (the "Record Date") for the determination of stockholders
entitled to notice of, and to vote at, the Special Meeting or any adjournment
thereof. As of the Record Date, Ogden owned 32,000,000 shares of OPI Common
Stock, constituting approximately 84% of the outstanding shares of OPI Common
Stock, and, therefore, has sufficient voting power to approve the matters
specifically to be considered at the Special Meeting, regardless of the vote of
any other stockholder. Ogden has advised OPI that it will vote its shares of OPI
Common Stock in favor of the Merger and the Appraisal Rights Amendment.
Accordingly, stockholder approval and adoption of the Merger Agreement and the
Appraisal Rights Amendment is assured.
Effectiveness of the Appraisal Rights Amendment is a condition to the
consummation of the Merger, and the Merger will not become effective unless the
Appraisal Rights Amendment has
<PAGE>
theretofore become effective. Accordingly, holders of OPI Common Stock who
follow the procedures set forth in Section 262 of the DGCL (including making a
timely written demand for appraisal rights) will be entitled to appraisal rights
in connection with the Merger.
TO ASSURE YOUR REPRESENTATION AT THE SPECIAL MEETING, PLEASE SIGN AND DATE
THE ENCLOSED PROXY AND RETURN IT PROMPTLY IN THE ENCLOSED POSTAGE PREPAID
ENVELOPE. IN THE EVENT YOU ATTEND THE SPECIAL MEETING, YOU MAY VOTE PERSONALLY
ON ALL MATTERS BROUGHT BEFORE THE SPECIAL MEETING AND, IN THAT EVENT, YOUR PROXY
WILL NOT BE USED.
By Order of the Board of Directors
JEFFREY R. HOROWITZ
Senior Vice President, General Counsel
and Secretary
November 29, 1994
40 Lane Road
Fairfield, New Jersey 07007
<PAGE>
----------------------------
PROXY STATEMENT
----------------------------
OGDEN PROJECTS, INC.
40 LANE ROAD
FAIRFIELD, NJ 07007
SPECIAL MEETING OF STOCKHOLDERS
TO BE HELD ON DECEMBER 29, 1994
------------------
PROSPECTUS
------------------
OGDEN CORPORATION
TWO PENNSYLVANIA PLAZA
NEW YORK, NY 10121
This Proxy Statement/Prospectus (this "Proxy Statement") is being furnished
to the holders of record as of November 22, 1994 (the "Record Date") of common
stock, par value $.50 per share ("OPI Common Stock"), of Ogden Projects, Inc., a
Delaware corporation ("OPI"), in connection with the solicitation of proxies on
behalf of the Board of Directors of OPI from such holders for use at a Special
Meeting of Stockholders of OPI to be held at the executive offices of OPI, 40
Lane Road, Fairfield, New Jersey 07007 on December 29, 1994, at 10:00 a.m.,
local time, and at any adjournment or postponement thereof (the "Special
Meeting").
At the Special Meeting, OPI stockholders will be asked to consider and vote
upon a proposal to approve and adopt an Amended and Restated Agreement and Plan
of Merger, dated as of September 27, 1994 (the "Merger Agreement"), by and among
Ogden Corporation, a Delaware corporation ("Ogden"), OPI Acquisition Corp., a
Delaware corporation wholly owned by Ogden ("Acquisition Sub"), and OPI. A copy
of the Merger Agreement is attached as Exhibit A to this Proxy Statement and
forms a part of this Proxy Statement. The Merger Agreement provides for the
merger of Acquisition Sub with and into OPI (the "Merger"), as a result of which
OPI (the "Surviving Corporation") will become a wholly owned subsidiary of
Ogden. At the effective time of the Merger (the "Effective Time"), each share of
OPI Common Stock outstanding (other than shares held by Ogden and its
subsidiaries and Dissenting Shares (as defined below)) will cease to be
outstanding for all purposes and instead will be converted into the right to
receive 0.84 of a share of common stock, par value $.50 per share ("Ogden Common
Stock") of Ogden (the "Exchange Ratio"), and for each whole share of Ogden
Common Stock to be so issued, one Preferred Stock Purchase Right (a "Right")
issued pursuant to the Rights Agreement, dated as of September 20, 1990, between
Ogden and Chemical Bank, as agent (the "Rights Agreement"). The Rights currently
are represented by the certificates for Ogden Common Stock and currently are not
transferable except as part of a transfer of the related common stock. OPI
stockholders who otherwise would be entitled to fractional shares of Ogden
Common Stock will receive cash in lieu of fractional shares.
At the Special Meeting, OPI stockholders also will be asked to approve an
amendment to the restated certificate of incorporation of OPI (the "OPI
Certificate") to provide appraisal rights, pursuant to Section 262 of the
General Corporation Law of Delaware (the "DGCL"), to holders of OPI Common Stock
who do not vote in favor of the Merger (or certain similar transactions) and
elect to demand appraisal in accordance with said Section 262 (the "Appraisal
Rights Amendment"). Approval and effectiveness of the Appraisal Rights Amendment
is a condition to consummation of the Merger. Shares of OPI Common Stock held by
holders of OPI Common Stock who properly exercise appraisal rights in connection
with the Merger pursuant to the Appraisal Rights Amendment and DGCL Section 262
are hereinafter referred to as "Dissenting Shares."
As of the Record Date, Ogden owned approximately 84% of the outstanding OPI
Common Stock and, therefore, has sufficient voting power to approve all matters
to be considered at the Special Meeting, regardless of the vote of any other
stockholder. Ogden will vote its shares of OPI Common Stock in favor of the
Merger and the Appraisal Rights Amendment. Accordingly, stockholder approval and
adoption of the Merger Agreement and the Appraisal Rights Amendment is assured.
Ogden has filed a Registration Statement on Form S-4 (the "Registration
Statement") pursuant to the Securities Act of 1933, as amended (the "Securities
Act"), covering the shares of Ogden Common Stock to be issued in connection with
the Merger. This Proxy Statement also constitutes the Prospectus of Ogden filed
as and forming a part of the Registration Statement. The information contained
in this Proxy Statement with respect to Ogden and its affiliates (other than OPI
and its subsidiaries) has been supplied by Ogden, including with respect to how
Ogden will vote its shares of OPI Common Stock at the Special Meeting, and the
information with respect to OPI and its subsidiaries has been supplied by OPI.
This Proxy Statement and accompanying materials are being mailed to the
stockholders of OPI on or about November 29, 1994.
-------------------
THE SHARES OF OGDEN COMMON STOCK TO BE ISSUED IN THE MERGER HAVE NOT BEEN
APPROVED OR DISAPPROVED BY THE SECURITIES AND EXCHANGE COMMISSION OR ANY STATE
SECURITIES COMMISSION NOR HAS THE SECURITIES AND EXCHANGE COMMISSION OR ANY
STATE SECURITIES COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY OF THIS PROXY
STATEMENT/PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
-------------------
The date of this Proxy Statement/Prospectus is November 29, 1994
<PAGE>
AVAILABLE INFORMATION
Ogden and OPI are each subject to the informational requirements of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and in
accordance therewith file periodic reports, proxy statements and other
information with the Securities and Exchange Commission (the "Commission"). Such
reports, proxy statements and other information can be inspected and copied at
the public reference facilities maintained by the Commission at 450 Fifth
Street, N.W., Washington, D.C. 20549 at prescribed rates. Such documents are
also available for inspection and copying at the regional offices of the
Commission located at Northwestern Atrium Center, 500 Madison Street, Suite
1400, Chicago, Illinois 60661 and 7 World Trade Center, New York, New York
10048. If the Merger is consummated, Ogden will continue to file periodic
reports, proxy statements and other information with the Commission pursuant to
the Exchange Act, and OPI no longer will be required to file periodic reports,
proxy statements or other information with the Commission pursuant to the
Exchange Act. The shares of Ogden Common Stock and OPI Common Stock are each
listed on the New York Stock Exchange ("NYSE") and, as such, the periodic
reports, proxy statements and other information filed by each of Ogden and OPI
with the Commission may be inspected at such exchange. For further information,
reference is made to the Registration Statement and to the exhibits thereto.
This Proxy Statement does not contain all the information set forth in the
Registration Statement and the exhibits thereto. Such additional information can
be inspected and copied at the aforementioned facilities of the Commission and
copies of such material also can be obtained as described below. Statements
contained herein concerning any documents are not necessarily complete and, in
each instance, reference is made to the copy of such document filed as an
exhibit to the Registration Statement or incorporated by reference therein. Each
such statement is qualified in its entirety by such reference.
INCORPORATION OF CERTAIN INFORMATION BY REFERENCE
THIS PROXY STATEMENT INCORPORATES BY REFERENCE CERTAIN DOCUMENTS OF EACH OF
OGDEN AND OPI, WHICH DOCUMENTS ARE NOT PRESENTED HEREIN OR DELIVERED HEREWITH.
OGDEN AND OPI WILL EACH PROVIDE WITHOUT CHARGE TO EACH PERSON TO WHOM A COPY OF
THIS PROXY STATEMENT IS DELIVERED, ON WRITTEN OR ORAL REQUEST, COPIES OF SUCH
DOCUMENTS. REQUESTS FOR SUCH OGDEN DOCUMENTS SHOULD BE DIRECTED TO OGDEN
CORPORATION, TWO PENNSYLVANIA PLAZA (26TH FLOOR), NEW YORK, NEW YORK 10121,
ATTENTION: KATHLEEN RITCH, SECRETARY, TELEPHONE (212) 868-6100. REQUESTS FOR
SUCH OPI DOCUMENTS SHOULD BE DIRECTED TO OGDEN PROJECTS, INC., 40 LANE ROAD,
FAIRFIELD, NEW JERSEY 07007, ATTENTION: JEFFREY R. HOROWITZ, SECRETARY,
TELEPHONE (201) 882-9000. IN ORDER TO ENSURE TIMELY DELIVERY OF THE DOCUMENTS,
ANY REQUEST TO OGDEN OR OPI SHOULD BE MADE BY DECEMBER 20, 1994.
There is hereby incorporated herein by reference the following documents
filed by Ogden with the Commission under the Exchange Act:
1. The Annual Report on Form 10-K of Ogden for the fiscal year ended
December 31, 1993;
2. The Quarterly Reports on Form 10-Q of Ogden for the periods ended
March 31, 1994, June 30, 1994 and September 30, 1994;
3. The description of Ogden Common Stock contained in the Registration
Statement filed by Ogden with the Commission under Section 12 of the
Exchange Act, including any amendment or report filed for the purpose of
updating such description; and
4. The description of the Rights contained in the Registration Statement
of Ogden on Form 8-A, dated September 28, 1990.
2
<PAGE>
There is also hereby incorporated herein by reference the following
documents filed by OPI with the Commission under the Exchange Act:
1. The Annual Report on Form 10-K of OPI for the fiscal year ended
December 31, 1993, as amended by an amendment on Form 10-K/A, dated April 5,
1994;
2. The Quarterly Reports on Form 10-Q of OPI for the periods ended March
31, 1994, June 30, 1994 and September 30, 1994;
3. The Current Report on Form 8-K of OPI, dated September 27, 1994; and
4. The description of OPI Common Stock contained in the Registration
Statement of OPI on Form 8-A, dated June 30, 1989, including any amendment
or report filed for the purpose of updating such description.
In addition, all documents filed by Ogden or OPI with the Commission
pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act after the
date hereof and prior to the date of the Special Meeting shall hereby be deemed
to be incorporated by reference herein from the date of the filing of such
documents. All information appearing in this Proxy Statement is qualified in its
entirety by the information and financial statements (including notes thereto)
appearing in the documents incorporated herein by reference.
Any statement contained in a document incorporated or deemed to be
incorporated by reference herein shall be deemed to be modified or superseded
for purposes hereof to the extent that a statement contained herein (or in any
other subsequently filed document that also is incorporated by reference herein)
modifies or supersedes such statement. Any statement so modified or superseded
shall not be deemed, except as so modified or superseded, to constitute a part
hereof.
NO PERSON IS AUTHORIZED TO GIVE ANY INFORMATION OR TO MAKE ANY
REPRESENTATION NOT CONTAINED IN THIS PROXY STATEMENT IN CONNECTION WITH THE
OFFERING AND SOLICITATION MADE HEREBY, AND, IF GIVEN OR MADE, SUCH INFORMATION
OR REPRESENTATION SHOULD NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED. THIS
PROXY STATEMENT DOES NOT CONSTITUTE AN OFFER TO SELL, OR A SOLICITATION OF AN
OFFER TO PURCHASE, THE SECURITIES OFFERED BY THIS PROXY STATEMENT, OR THE
SOLICITATION OF A PROXY, IN ANY JURISDICTION TO OR FROM ANY PERSON TO WHOM IT IS
UNLAWFUL TO MAKE SUCH OFFER OR SOLICITATION OF AN OFFER OR PROXY SOLICITATION IN
SUCH JURISDICTION. NEITHER THE DELIVERY OF THIS PROXY STATEMENT NOR ANY
DISTRIBUTION OF THE SECURITIES OFFERED PURSUANT TO THIS PROXY STATEMENT SHALL,
UNDER ANY CIRCUMSTANCES, CREATE ANY IMPLICATION THAT THERE HAS BEEN NO CHANGE IN
THE INFORMATION CONTAINED HEREIN OR IN THE AFFAIRS OF OGDEN OR OPI SINCE THE
DATE HEREOF.
3
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
<S> <C>
Available Information................................................................. 2
Incorporation of Certain Information by Reference..................................... 2
Summary............................................................................... 5
Market Prices of Common Stock......................................................... 12
Ogden Corporation and Subsidiaries Selected Historical Consolidated Financial Data.... 13
Ogden Projects, Inc. and Subsidiaries Selected Historical Consolidated Financial
Data.................................................................................. 14
Ogden Corporation and Subsidiaries Pro Forma Consolidated Condensed Financial
Information........................................................................... 15
Comparative Per Share Data............................................................ 19
The Special Meeting................................................................... 20
General............................................................................. 20
Vote Required....................................................................... 20
Voting Rights and Proxies........................................................... 21
The Merger............................................................................ 22
Background of the Merger............................................................ 22
Recommendation of the Special Committee............................................. 26
Opinion of the Special Committee's Financial Advisor................................ 27
Ogden's Reasons for the Merger...................................................... 30
Certain Consequences of the Merger.................................................. 31
Operation and Management of OPI after the Merger.................................... 31
Conduct of the Business of Ogden and OPI if the Merger is Not Consummated........... 31
Conflicts of Interest............................................................... 32
Accounting Treatment................................................................ 33
Certain Federal Income Tax Consequences............................................. 33
Regulatory Approvals................................................................ 34
Litigation Relating to the Merger................................................... 34
Federal Securities Law Consequences................................................. 34
Appraisal Rights.................................................................... 34
The Merger Agreement.................................................................. 38
Terms of the Merger................................................................. 38
Effective Time of the Merger........................................................ 38
Conversion of OPI Common Stock...................................................... 38
Exchange of OPI Stock Certificates.................................................. 39
Treatment of OPI Stock Options...................................................... 39
Representations and Warranties...................................................... 39
Certificate of Incorporation, Bylaws and Directors.................................. 40
Conduct of Business Pending the Merger.............................................. 40
Indemnification..................................................................... 40
Conditions to the Merger............................................................ 41
Termination......................................................................... 41
Amendment and Waiver................................................................ 41
Expenses............................................................................ 42
Certain Other Agreements............................................................ 42
Business of Ogden and its Subsidiaries................................................ 43
Description of Ogden Capital Stock.................................................... 47
Comparison of Stockholders' Rights.................................................... 51
The Appraisal Rights Amendment........................................................ 53
Experts............................................................................... 54
Legal Matters......................................................................... 54
Stockholder Proposals................................................................. 54
Exhibit A--Amended and Restated Agreement and Plan of Merger
Exhibit B--Form of Certificate of Amendment of Third Restated Certificate of
Incorporation of Ogden Projects, Inc.
Exhibit C--Delaware General Corporation Law Section 262
Exhibit D--Opinion of CS First Boston Corporation
</TABLE>
4
<PAGE>
SUMMARY
The following is a summary of certain information contained elsewhere in
this Proxy Statement. This summary is not intended to be complete and is
qualified in all respects by reference to the detailed information appearing
elsewhere, or incorporated by reference, in this Proxy Statement and the
exhibits hereto. Stockholders are urged to review the entire Proxy Statement,
the exhibits hereto and the documents incorporated herein by reference in their
entirety. Unless otherwise defined herein, capitalized terms used in this
summary have the respective meanings ascribed to them elsewhere in this Proxy
Statement.
GENERAL
<TABLE>
<S> <C>
THE MERGER:.................. This Proxy Statement relates to the proposed Merger of
Acquisition Sub, a newly formed, wholly owned subsidiary of
Ogden, with and into OPI. Upon effectiveness of the Merger,
each outstanding share of OPI Common Stock (other than
shares held by Ogden and its subsidiaries and Dissenting
Shares) will be converted into the right to receive 0.84
shares of Ogden Common Stock. As a result of the Merger, OPI
will become a wholly owned subsidiary of Ogden and OPI
Common Stock will cease to be publicly traded.
THE MERGER AGREEMENT:........ The Merger will be effected pursuant to the Merger
Agreement, a copy of which is attached hereto as Exhibit A.
See "The Merger Agreement."
THE APPRAISAL RIGHTS
AMENDMENT:................... This Proxy Statement also relates to the proposed Appraisal
Rights Amendment to the OPI Certificate, pursuant to which
holders of OPI Common Stock who do not vote in favor of the
Merger and who elect to demand appraisal in accordance with
Section 262 of the DGCL will be entitled to appraisal rights
in connection with the Merger. Approval and effectiveness of
the Appraisal Rights Amendment is a condition to
consummation of the Merger. A copy of the Appraisal Rights
Amendment and of Section 262 are attached hereto as Exhibits
B and C, respectively. See "The Merger--Appraisal Rights"
and "The Appraisal Rights Amendment."
</TABLE>
THE COMPANIES
<TABLE>
<S> <C>
OGDEN:....................... Ogden is a diversified company primarily engaged in
providing a wide variety of services through its two
operating sectors: waste-to- energy operations and operating
services. Operating services are performed by Ogden Services
Corporation principally through five major business groups:
Aviation Services, Facility Services, Entertainment
Services, Government Services and Environmental and Energy
Services. Ogden participates in the waste-to-energy
operations sector through OPI, its approximately 84% owned
subsidiary, as described below. See "Business of Ogden and
its Subsidiaries."
]Ogden's principal executive offices are located at Two
Pennsylvania Plaza, New York, New York 10121, and the
telephone number is (212) 868-6100.
OPI:......................... OPI's principal business, conducted largely through its
wholly owned subsidiary, Ogden Martin Systems, Inc.,
provides waste-to-energy services through designing,
permitting, constructing, assisting in financing and
operating and maintaining waste-to-energy facilities which
combust municipal solid waste to make
</TABLE>
5
<PAGE>
<TABLE>
<S> <C>
saleable energy in the form of electricity or steam. OPI
also is pursuing opportunities to develop independent power
projects that utilize fuels other than waste, as well as
pursuing opportunities to operate and maintain water and
wastewater processing facilities. See "Business of Ogden and
its Subsidiaries."
OPI's principal executive offices are located at 40 Lane
Road, Fairfield, New Jersey 07007, and the telephone number
is (201) 882-9000.
</TABLE>
THE SPECIAL MEETING
<TABLE>
<S> <C>
DATE, TIME AND PLACE OF
SPECIAL MEETING:............. Thursday, December 29, 1994, at 10:00 a.m., local time, at
the executive offices of OPI, 40 Lane Road, Fairfield, New
Jersey 07007. See "The Special Meeting--General."
RECORD DATE:................. Only holders of record of shares of OPI Common Stock at the
close of business on the Record Date are entitled to notice
of, and to vote at, the Special Meeting. See "The Special
Meeting--Voting Rights and Proxies."
PURPOSE OF THE SPECIAL
MEETING:..................... The purpose of the Special Meeting is to consider and act
upon proposals (i) to approve and adopt the Merger Agreement
and (ii) to approve the Appraisal Rights Amendment.
VOTE REQUIRED:............... Pursuant to the OPI Certificate, the affirmative vote of the
holders of two-thirds of the shares of OPI Common Stock
outstanding on the Record Date is required to approve and
adopt the Merger Agreement. The affirmative vote of the
holders of a majority of the shares of OPI Common Stock
outstanding on the Record Date is required to approve the
Appraisal Rights Amendment.
As of the Record Date, Ogden owned approximately 84% of the
outstanding OPI Common Stock and therefore has sufficient
voting power to approve all matters to be considered at the
Special Meeting, regardless of the vote of any other
stockholder. Ogden will vote its shares of OPI Common Stock
in favor of the Merger and the Appraisal Rights Amendment.
Accordingly, stockholder approval and adoption of the Merger
Agreement and the Appraisal Rights Amendment is assured.
Nevertheless, the Board of Directors of OPI is hereby
soliciting the votes of holders (other than Ogden and its
affiliates) of OPI Common Stock (the "Unaffiliated OPI
Stockholders") in favor of approval and adoption of the
Merger Agreement and the Appraisal Rights Amendment. See
"The Special Meeting--Vote Required."
</TABLE>
THE MERGER
<TABLE>
<S> <C>
EFFECTIVE TIME OF THE
MERGER:...................... The Merger will become effective upon the filing of a
Certificate of Merger with the Office of the Secretary of
State of the State of Delaware (the "Effective Time") in
accordance with Delaware law. The Certificate of Merger will
be filed contemporaneously with the closing of the
transactions contemplated by the Merger Agreement, which
closing is anticipated to occur as soon as practicable after
approval of the Merger Agreement by OPI stockholders and the
satisfaction or waiver of the other conditions precedent to
consummation of the Merger. See "The Merger Agreement--
Effective Time of the Merger."
</TABLE>
6
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<S> <C>
EFFECT OF THE MERGER:........ At the Effective Time, Acquisition Sub will be merged with
and into OPI, as a result of which OPI will become a wholly
owned subsidiary of Ogden and OPI Common Stock will cease to
be publicly traded.
MERGER CONSIDERATION;
CONVERSION OF OPI COMMON
STOCK AND STOCK OPTIONS:..... At the Effective Time, each outstanding share of OPI Common
Stock (other than shares owned by Ogden and its subsidiaries
and Dissenting Shares) will cease to be outstanding for all
purposes and instead will be converted into the right to
receive (i) 0.84 of a share of Ogden Common Stock and (ii)
for each whole share of Ogden Common Stock into which the
shares of OPI Common Stock are so convertible pursuant to
clause (i), one Right. The Rights currently are represented
by the certificates for the Ogden Common Stock and currently
are not transferable except as part of a transfer of the
related common stock. OPI stockholders who otherwise would
be entitled to fractional shares of Ogden Common Stock will
receive cash in lieu of fractional shares. Each stock option
of OPI outstanding immediately prior to the Effective Time
will be converted on the same basis into an option to
acquire whole shares of Ogden Common Stock. See "The Merger
Agreement--Conversion of OPI Common Stock," "--Exchange of
OPI Stock Certificates" and "--Treatment of OPI Stock
Options."
EXCHANGE OF OPI STOCK
CERTIFICATES:................ As soon as practicable after the Effective Time,
instructions with regard to the surrender of OPI Common
Stock certificates, together with a letter of transmittal
(the "Letter of Transmittal") to be used for this purpose,
will be furnished to all OPI stockholders of record for use
in exchanging their stock certificates for the shares of
Ogden Common Stock, Rights and cash in lieu of fractional
shares they will be entitled to receive as a result of the
Merger. OPI STOCKHOLDERS SHOULD NOT SUBMIT THEIR STOCK
CERTIFICATES FOR EXCHANGE UNTIL SUCH INSTRUCTIONS AND LETTER
OF TRANSMITTAL ARE RECEIVED. See "The Merger
Agreement--Exchange of OPI Stock Certificates."
RECOMMENDATION OF THE SPECIAL
COMMITTEE:................... A special committee of the Board of Directors of OPI (the
"Special Committee"), consisting of two independent
directors of OPI, neither of whom is a director, officer or
employee of Ogden nor an officer or employee of OPI,
unanimously determined that the terms of the Merger are
fair, from a financial point of view, to the Unaffiliated
OPI Stockholders and recommended approval and adoption of
the Merger Agreement and the transactions contemplated
thereby to the OPI Board of Directors and to OPI's
stockholders. Based on that recommendation, the Board of
Directors of OPI (including directors of OPI who also are
directors or officers of Ogden) unanimously approved the
Merger Agreement and the transactions contemplated thereby
and approved the Appraisal Rights Amendment and recommends
approval and adoption of the Merger Agreement and approval
of the Appraisal Rights Amendment by OPI's stockholders. See
"The Merger-- Recommendation of the Special Committee."
OPINION OF THE SPECIAL
COMMITTEE'S FINANCIAL
ADVISOR:..................... CS First Boston Corporation ("First Boston") has rendered
written opinions to the Special Committee, dated September
27, 1994 and the date of this Proxy Statement, that the
Exchange Ratio is fair to the Unaffiliated OPI Stockholders
from a financial point of view. A copy of the opinion of
First Boston dated the date of this Proxy Statement is
attached hereto as Exhibit D. See "The Merger-- Opinion of
the Special Committee's Financial Advisor."
</TABLE>
7
<PAGE>
<TABLE>
<S> <C>
OGDEN'S REASONS FOR THE
MERGER:...................... Ogden's purpose in consummating the Merger is to obtain
beneficial ownership of the shares of OPI Common Stock it
does not already beneficially own. Upon consummation of the
Merger, Ogden will be entitled to all benefits and will face
all risks that result from ownership of all of the
outstanding shares of OPI Common Stock. The Merger is
intended to simplify the corporate structure under which
Ogden and OPI operate and will eliminate certain expenses
associated with OPI's current status as a publicly held
corporation. Ogden believes that the Merger will provide the
Unaffiliated OPI Stockholders with the opportunity to retain
a significant indirect interest in OPI through the shares of
Ogden Common Stock they will receive in the Merger, while
providing Ogden with a broader equity base and a
strengthened borrowing capacity. See "The Merger--Ogden's
Reasons for the Merger."
SECURITY OWNERSHIP OF OPI
MANAGEMENT AND OGDEN:........ As of the Record Date, after giving effect to outstanding
stock options of OPI, directors and executive officers of
OPI as a group were the beneficial owners of less than one
percent of the outstanding shares of OPI Common Stock. As of
the Record Date, Ogden owned approximately 84% of the
outstanding OPI Common Stock. Ogden therefore has sufficient
voting power to approve all matters to be considered at the
Special Meeting, regardless of the vote of any other
stockholder. See "The Special Meeting--Vote Required" and
"The Merger--Conflicts of Interest."
CERTAIN CONSEQUENCES OF THE
MERGER:...................... Upon consummation of the Merger, the Unaffiliated OPI
Stockholders (other than holders of Dissenting Shares) will
become stockholders of Ogden. Shares of OPI Common Stock
will cease to be traded on the NYSE and application will be
made to deregister such shares under the Exchange Act. After
consummation of the Merger, without giving effect to
outstanding stock options of Ogden and OPI and assuming no
Dissenting Shares, Ogden stockholders as of immediately
prior to the Effective Time will own approximately 89.5% of
the Ogden Common Stock that will be outstanding after the
Merger and current Unaffiliated OPI Stockholders will own
approximately 10.5% of the Ogden Common Stock that will be
outstanding after the Merger. See "The Merger--Certain
Consequences of the Merger."
APPRAISAL RIGHTS:............ Effectiveness of the Appraisal Rights Amendment is a
condition to the consummation of the Merger. Accordingly,
Unaffiliated OPI Stockholders will be entitled in connection
with the Merger to have their shares judicially appraised
and to be paid the appraisal value, if any, of such shares
in accordance with the provisions of the Appraisal Rights
Amendment and Section 262 of the DGCL. Any demand for
appraisal must be made and delivered in writing to OPI prior
to the vote on the Merger at the Special Meeting. Submission
of a proxy instructing that shares be voted against approval
of the Merger Agreement by itself does not constitute such a
demand. Failure to take any of the steps required under
Section 262 of the DGCL on a timely basis may result in the
loss of appraisal rights. A copy of Section 262 is attached
hereto as Exhibit C. See "The Merger--Appraisal Rights" and
"The Appraisal Rights Amendment."
OPERATION OF OPI AFTER THE
MERGER:...................... Following consummation of the Merger, Ogden currently
intends to continue to operate the business of OPI
substantially as it is currently conducted by OPI. The
Merger Agreement provides that the current officers of OPI
will be the officers of OPI immediately following the
Merger. Ogden has formulated no plans with respect
</TABLE>
8
<PAGE>
<TABLE>
<S> <C>
to any changes in the officers of OPI, but may do so after
the Merger. See "The Merger--Operation and Management of OPI
after the Merger."
CONDUCT OF THE BUSINESS OF
OGDEN AND OPI IF THE MERGER
IS NOT CONSUMMATED:........ If the Merger is not consummated, it is expected that the
business and operations of Ogden and OPI will each continue
to be conducted substantially as they are currently being
conducted and that OPI will continue to be controlled by
Ogden. In addition, in such event, Ogden may purchase
additional shares of OPI Common Stock from time to time,
subject to availability at prices deemed acceptable to
Ogden, pursuant to a merger transaction, tender offer, open
market or privately negotiated transactions or otherwise on
terms more or less favorable to the Unaffiliated OPI
Stockholders than the terms of the Merger. However, Ogden
has made no determination as to any future transactions if
the Merger is not consummated. See "The Special
Meeting--Vote Required" and "The Merger--Conduct of the
Business of Ogden and OPI if the Merger Is Not Consummated."
CONFLICTS OF INTERESTS OF
CERTAIN PERSONS IN THE
MERGER:...................... In considering the approval and recommendation by the OPI
Board of Directors of the Merger Agreement and the Appraisal
Rights Amendment and the recommendation of the Special
Committee with respect to the Merger Agreement and the
transactions contemplated thereby, OPI stockholders should
be aware that certain members of OPI's management and Board
of Directors have certain interests in the Merger that are
in addition to, or different from, the interests of OPI
stockholders generally, and which may present such members
with actual or potential conflicts of interest. Seven of the
nine directors of OPI are officers or directors of Ogden.
Such persons may be deemed to have conflicts of interest by
virtue of their positions with both Ogden and OPI. The
Special Committee was constituted to review, negotiate and
make recommendations to the OPI Board of Directors with
respect to Ogden's original proposal to acquire in a merger
the shares of OPI Common Stock owned by the Unaffiliated OPI
Stockholders at an exchange ratio of 0.78 shares of Ogden
Common Stock for each share of OPI Common Stock (the
"Initial Offer") so that the proposed transaction would be
reviewed, negotiated and recommendations with respect
thereto made by directors of OPI who were neither directors,
officers or employees of Ogden nor officers or employees of
OPI. In addition, certain of OPI's directors (including the
members of the Special Committee) own shares and/or options
to purchase OPI Common Stock and/or Ogden Common Stock.
Prior to considering the Initial Offer, the Special
Committee requested and obtained from OPI separate
indemnification agreements for each of its members, which,
among other things, restated such directors' entitlement to
indemnification under OPI's Bylaws and specified or
clarified certain procedures and presumptions which would
apply to claims thereunder in connection with the Initial
Offer or any revision thereof, and obligated OPI to maintain
for a period of not less than three years, subject to
certain limitations, the directors' and officers' liability
insurance policies currently maintained by OPI. The Merger
Agreement also obliges Ogden to maintain in effect for a
period following the Effective Time the indemnification
arrangements in favor of the directors and officers of OPI
that currently exist in the OPI Certificate or the Bylaws of
OPI. See "The Merger Agreement--Indemnification." The Board
of Directors of OPI and the Special Committee were aware of
the relationships and interests described above and
considered them,
</TABLE>
9
<PAGE>
<TABLE>
<S> <C>
along with other matters, in approving the Merger Agreement
and the transactions contemplated thereby. See "The Merger--
Background of the Merger" and "--Conflicts of Interest."
CONDITIONS TO THE MERGER:.... The respective obligations of OPI and Ogden (including
Acquisition Sub) to effect the Merger are subject to the
satisfaction of certain conditions, including but not
limited to: (i) approval and adoption of the Merger
Agreement and approval of the Appraisal Rights Amendment,
each by the requisite vote of the holders of OPI Common
Stock; (ii) no preliminary or permanent injunction or other
order by any federal or state court which prohibits the
consummation of the Merger having been issued and remaining
in effect; (iii) the performance by the other party in all
material respects of its obligations under the Merger
Agreement and the correctness in all material respects of
its representations and warranties contained therein; (iv)
the shares of Ogden Common Stock issuable in the Merger
having been authorized for listing on the NYSE (subject to
official notice of issuance); and (v) in the case of Ogden's
obligation to close, neither OPI's Board of Directors nor
the Special Committee having withdrawn or modified its
recommendation with respect to approval and adoption of the
Merger Agreement and the transactions contemplated thereby.
See "The Merger Agreement--Conditions to the Merger."
AMENDMENT AND WAIVER:........ The Merger Agreement may be amended by the parties thereto,
by or pursuant to action taken by their respective Boards of
Directors, at any time before or after approval of the
Merger Agreement by the stockholders of OPI, but, after any
such approval, no amendment shall be made which changes the
Exchange Ratio or which in any way materially adversely
affects the rights of such stockholders, without the further
approval of such stockholders. Prior to the Effective Time,
any such amendment or other action of OPI or its Board of
Directors required or permitted by the Merger Agreement
requires the approval or authorization of the Special
Committee. See "The Merger Agreement--Amendment and Waiver."
TERMINATION:................. The Merger Agreement may be terminated at any time prior to
the Effective Time, whether before or after approval by the
stockholders of OPI: (i) by mutual consent of the Board of
Directors of Ogden and the Board of Directors of OPI; (ii)
by either Ogden or OPI, if the Merger shall not have been
consummated on or before March 1, 1995; (iii) by OPI, if
either Ogden or Acquisition Sub shall have failed to comply
in any material respect with any of their respective
material covenants or agreements contained in the Merger
Agreement; (iv) by Ogden, if OPI shall have failed to comply
in any material respect with any of its material covenants
or agreements contained in the Merger Agreement; and (v) by
the Special Committee if First Boston has withdrawn its
fairness opinion. See "The Merger Agreement--Termination."
ACCOUNTING TREATMENT:........ The Merger will be accounted for as a "purchase" under
generally accepted accounting principles. See "The
Merger--Accounting Treatment."
CERTAIN FEDERAL INCOME TAX
CONSEQUENCES:................ It is a condition to the obligation of OPI to consummate the
Merger that Ogden shall have delivered to OPI an opinion of
Ogden's counsel to the effect that, among other things, the
Merger will constitute a reorganization within the meaning
of Section 368 of the Internal Revenue Code of 1986, as
amended, and, accordingly, holders of shares of OPI Common
Stock who receive shares of Ogden Common Stock in exchange
for their shares of OPI Common Stock pursuant to the Merger
will recognize no gain or loss upon the
</TABLE>
10
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<TABLE>
<S> <C>
exchange, except with respect to the receipt of cash
received for fractional shares. For a further discussion of
certain federal income tax consequences of the Merger, see
"The Merger--Certain Federal Income Tax Consequences."
LITIGATION RELATING TO THE
MERGER:...................... Nine class action civil suits (the "Class Action Lawsuits")
were filed by persons alleging or claiming to be
stockholders of OPI (the "Class Action Plaintiffs") against,
among others, Odgen, OPI and OPI's directors in connection
with Ogden's Initial Offer. The suits alleged, among other
things, that the exchange ratio proposed by Ogden in the
Initial Offer, of 0.78 shares of Ogden Common Stock for each
share of OPI Common Stock, was grossly unfair, inadequate,
and substantially below the fair value of the OPI Common
Stock. In connection with the execution of the Merger
Agreement, an agreement in principle to settle the Class
Action Lawsuits was reached between the Class Action
Plaintiffs and the defendants in the Class Action Lawsuits
and a memorandum of understanding was executed, subject to a
variety of conditions, including court approval. See "The
Merger--Litigation Relating to the Merger."
COMPARISON OF STOCKHOLDERS'
RIGHTS:...................... Upon consummation of the Merger, Unaffiliated OPI
Stockholders who do not exercise appraisal rights will
become stockholders of Ogden. Ogden and OPI are both
Delaware corporations. See "Comparison of Stockholders'
Rights" for a summary of the material differences between
the current rights of holders of shares of Ogden Common
Stock and holders of shares of OPI Common Stock.
NO REGULATORY
REQUIREMENTS:................ To Ogden's and OPI's knowledge, no federal or state
regulatory requirements must be complied with, or approvals
obtained, in connection with the Merger, other than those
required pursuant to federal and state securities laws and
by the rules and regulations of the NYSE.
</TABLE>
11
<PAGE>
MARKET PRICES OF COMMON STOCK
Ogden Common Stock and OPI Common Stock are each traded on the NYSE. The
following table sets forth the high and low closing sale prices per share for
each of Ogden Common Stock and OPI Common Stock during the periods indicated:
<TABLE>
<CAPTION>
OGDEN OPI
COMMON STOCK COMMON STOCK
---------------- ----------------
<S> <C> <C> <C> <C>
HIGH LOW HIGH LOW
------------- ------------- ------------- -------------
1992:
First quarter.......................................... $ 24 3/8 $ 19 1/2 $ 24 1/4 $ 20 1/4
Second quarter......................................... 22 1/2 17 7/8 22 17
Third quarter.......................................... 21 3/4 18 1/2 20 5/8 14 5/8
Fourth quarter......................................... 22 7/8 17 1/8 20 3/4 15
1993:
First quarter.......................................... 24 5/8 21 1/2 20 5/8 17 1/4
Second quarter......................................... 26 1/2 22 1/8 22 3/4 16 3/8
Third quarter.......................................... 27 21 5/8 23 7/8 15 3/8
Fourth quarter......................................... 26 22 18 15 1/8
1994:
First quarter.......................................... 24 3/8 22 1/8 17 1/4 15
Second quarter......................................... 23 1/4 20 1/8 17 7/8 14 3/4
Third quarter.......................................... 23 20 3/4 17 1/2 15 7/8
Fourth quarter (through November 25, 1994)............. 21 1/2 19 3/4 17 5/8 16 1/8
</TABLE>
On June 3, 1994, the last full trading day before the initial public
announcement of the Initial Offer, the closing sale prices for Ogden Common
Stock and OPI Common Stock were $21 7/8 and $17 3/8 per share, respectively. On
September 26, 1994, the last full trading day before the joint public
announcement by the companies of the signing of the Merger Agreement, the
closing sale prices for Ogden Common Stock and OPI Common Stock were $21 3/8 and
$15 7/8 per share, respectively. On November 25, 1994 (the most recent date
practicable prior to the printing of this Proxy Statement for which closing
sale prices were obtainable), the closing sale prices for Ogden Common Stock
and OPI Common Stock were $19 7/8 and $16 1/4 per share, respectively. Based
on the November 25, 1994 closing sale price of Ogden Common Stock, the market
value of 0.84 of a share of Ogden Common Stock was $16.70.
Holders of record of Ogden Common Stock as of December 14, 1994 will be
entitled to receive the quarterly dividend of $0.3125 per share to be paid to
such holders on January 5, 1995, and the current trading price of Ogden Common
Stock and the trading price of Ogden Common Stock between the date of this Proxy
Statement and the Special Meeting may reflect such dividend. The Effective Time
of the Merger will occur after December 14, 1994, the record date for such
dividend, and, accordingly, the Unaffiliated OPI Stockholders who receive Ogden
Common Stock in the Merger will not be entitled to receive such dividend.
No dividend has been paid on OPI Common Stock during the period from January
1, 1992 through the date of this Proxy Statement.
OPI STOCKHOLDERS ARE URGED TO OBTAIN CURRENT MARKET QUOTATIONS FOR OGDEN
COMMON STOCK AND OPI COMMON STOCK.
12
<PAGE>
OGDEN CORPORATION AND SUBSIDIARIES
SELECTED HISTORICAL CONSOLIDATED FINANCIAL DATA
The selected historical consolidated financial data of Ogden and its
subsidiaries set forth below as of December 31, 1993 and 1992 and for each of
the three years in the period ended December 31, 1993 was derived from the
consolidated financial statements incorporated herein, which have been audited
by Deloitte & Touche LLP, independent auditors. In addition, the selected
historical consolidated financial data as of December 31, 1991, 1990 and 1989
and for each of the years in the two-year period ended December 31, 1990 was
derived from the consolidated financial statements of Ogden Corporation as of
December 31, 1991, 1990, and 1989 and for each of the years in the two-year
period ended December 31, 1990, not presented herein, which have been audited by
Deloitte & Touche LLP, independent auditors. The selected historical
consolidated financial data as of September 30, 1994 and for the nine month
periods ended September 30, 1994 and 1993 was derived from the unaudited
consolidated condensed financial statements included in Ogden's Quarterly Report
on Form 10-Q for the period ended September 30, 1994 incorporated herein by
reference. Such data as of September 30, 1993 was derived from the unaudited
consolidated condensed financial statements included in Ogden's Quarterly Report
on Form 10-Q for the period ended September 30, 1993 not presented herein. In
the opinion of Ogden's management, such unaudited consolidated condensed
financial statements include all adjustments, consisting of normal recurring
accruals, necessary for a fair presentation of such statements. The results of
the nine month period ended September 30, 1994 are not necessarily indicative of
the results to be expected for the full 1994 year. This data should be read in
conjunction with such financial statements and the notes thereto. See
"Incorporation of Certain Information by Reference."
<TABLE>
<CAPTION>
NINE MONTHS
ENDED
YEAR ENDED DECEMBER 31, SEPTEMBER 30,
---------------------------------------------------- -------------------
1989 1990 1991 1992 1993 1993 1994
-------- -------- -------- -------- -------- -------- --------
(IN MILLIONS, EXCEPT PER SHARE
AMOUNTS) (UNAUDITED)
<S> <C> <C> <C> <C> <C> <C> <C>
INCOME STATEMENT DATA
Net Sales and Service Revenues:.... $1,526.8 $1,556.4 $1,567.6 $1,768.8 $2,039.3 $1,515.5 $1,553.7
-------- -------- -------- -------- -------- -------- --------
-------- -------- -------- -------- -------- -------- --------
Income (Loss) From:
Continuing operations.............. $ 58.9 $ 58.1 $ 57.6 $ 60.8 $ 62.1 $ 44.6 $ 51.7
Discontinued operations............ (0.6) (2.2) (13.9)
Cumulative effect of changes in
accounting principles............. (5.2) (5.3) (5.3) (1.5)
-------- -------- -------- -------- -------- -------- --------
Net income...................... $ 58.3 $ 55.9 $ 43.7 $ 55.6 $ 56.8 $ 39.3 $ 50.2
-------- -------- -------- -------- -------- -------- --------
-------- -------- -------- -------- -------- -------- --------
Earnings (Loss) per Common Share:
Continuing operations.............. $ 1.39 $ 1.36 $ 1.33 $ 1.41 $ 1.43 $ 1.03 $ 1.18
Discontinued operations............ (0.01) (0.05) (0.32)
Cumulative effect of changes in
accounting principles............. (0.12) (0.12) (0.12) (0.03)
-------- -------- -------- -------- -------- -------- --------
Total........................... $ 1.38 $ 1.31 $ 1.01 $ 1.29 $ 1.31 $ 0.91 $ 1.15
-------- -------- -------- -------- -------- -------- --------
-------- -------- -------- -------- -------- -------- --------
Earnings (Loss) per Common Share-
Assuming Full Dilution:
Continuing operations.............. $ 1.37 $ 1.34 $ 1.32 $ 1.40 $ 1.42 $ 1.02 $ 1.17
Discontinued operations............ (0.01) (0.05) (0.32)
Cumulative effect of changes in
accounting principles............. (0.12) (0.12) (0.12) (0.03)
-------- -------- -------- -------- -------- -------- --------
Total........................... $ 1.36 $ 1.29 $ 1.00 $ 1.28 $ 1.30 $ 0.90 $ 1.14
-------- -------- -------- -------- -------- -------- --------
-------- -------- -------- -------- -------- -------- --------
Cash Dividends Declared per Common
Share.............................. $ 1.25 $ 1.31 $ 1.25 $ 1.25 $ 1.25 $ 0.94 $ 0.94
-------- -------- -------- -------- -------- -------- --------
-------- -------- -------- -------- -------- -------- --------
Weighted Average Common Shares
Outstanding:
Primary............................ 42.3 42.6 43.0 43.1 43.4 43.3 43.6
-------- -------- -------- -------- -------- -------- --------
-------- -------- -------- -------- -------- -------- --------
Fully Diluted...................... 42.9 43.2 43.5 43.6 43.8 43.8 43.9
-------- -------- -------- -------- -------- -------- --------
-------- -------- -------- -------- -------- -------- --------
BALANCE SHEET DATA
Total Assets....................... $2,700.1 $2,690.4 $2,846.3 $3,187.8 $3,312.5 $3,320.9 $3,410.3
-------- -------- -------- -------- -------- -------- --------
-------- -------- -------- -------- -------- -------- --------
Long-Term Obligations.............. $1,715.8 $1,688.4 $1,797.7 $2,028.0 $1,979.2 $2,012.5 $1,972.6
-------- -------- -------- -------- -------- -------- --------
-------- -------- -------- -------- -------- -------- --------
Common Shareholders' Equity........ $ 476.6 $ 484.5 $ 478.1 $ 481.1 $ 486.3 $ 483.2 $ 499.0
-------- -------- -------- -------- -------- -------- --------
-------- -------- -------- -------- -------- -------- --------
Shareholders' Equity Per Common
Share.............................. $ 11.19 $ 11.26 $ 11.09 $ 11.11 $ 11.15 $ 11.09 $ 11.41
-------- -------- -------- -------- -------- -------- --------
-------- -------- -------- -------- -------- -------- --------
</TABLE>
- ------------
Net income in 1993 was reduced by $.08 per share for a net one-time charge due
to the adjustment of prior year's deferred income tax balances as a result of
the increased federal income tax rate.
Cash dividends declared does not include supplemental dividend payable in OPI
Common Stock on January 9, 1990, to Ogden common stockholders of record on
December 14, 1989 (equivalent value of $.6875 per share of Ogden Common Stock).
13
<PAGE>
OGDEN PROJECTS, INC. AND SUBSIDIARIES
SELECTED HISTORICAL CONSOLIDATED FINANCIAL DATA
The selected historical consolidated financial data of OPI and its
subsidiaries set forth below as of December 31, 1993 and 1992 and for each of
the three years in the period ended December 31, 1993 was derived from the
consolidated financial statements incorporated herein, which have been audited
by Deloitte & Touche LLP, independent auditors. In addition, the selected
historical consolidated financial data as of December 31, 1991, 1990 and 1989
and for each of the years in the two-year period ended December 31, 1990 was
derived from the consolidated financial statements of OPI as of December 31,
1991, 1990 and 1989 and for each of the years in the two-year period ended
December 31, 1990, not presented herein, which have been audited by Deloitte &
Touche LLP, independent auditors. The selected historical consolidated financial
data as of September 30, 1994 and for the nine month periods ended September 30,
1994 and 1993 was derived from the unaudited consolidated condensed financial
statements included in OPI's Quarterly Report on Form 10-Q for the period ended
September 30, 1994 incorporated herein by reference. Such data as of September
30, 1993 was derived from the unaudited consolidated condensed financial
statements included in OPI's Quarterly Report on Form 10-Q for the period ended
September 30, 1993 not presented herein. In the opinion of OPI's management,
such unaudited consolidated condensed financial statements include all
adjustments, consisting of normal recurring accruals, necessary for a fair
presentation of such statements. The results of the nine month period ended
September 30, 1994 are not necessarily indicative of the results to be expected
for the full 1994 year. This data should be read in conjunction with such
financial statements and the notes thereto. See "Incorporation of Certain
Information by Reference."
<TABLE>
<CAPTION>
NINE MONTHS
ENDED
YEAR ENDED DECEMBER 31, SEPTEMBER 30,
---------------------------------------------------- -------------------
1989 1990 1991 1992 1993 1993 1994
-------- -------- -------- -------- -------- -------- --------
(IN MILLIONS EXCEPT PER SHARE AMOUNTS) (UNAUDITED)
<S> <C> <C> <C> <C> <C> <C> <C>
INCOME STATEMENT DATA
Service Revenues............ $ 165.0 $ 245.4 $ 321.3 $ 371.7 $ 432.6 $ 319.4 $ 341.0
Construction Revenues....... 156.7 117.2 42.9 94.3 248.5 176.8 166.0
-------- -------- -------- -------- -------- -------- --------
Total................... $ 321.7 $ 362.6 $ 364.2 $ 466.0 $ 681.1 $ 496.2 $ 507.0
-------- -------- -------- -------- -------- -------- --------
-------- -------- -------- -------- -------- -------- --------
Income (Loss) From:
Continuing operations....... $ 26.3 $ 39.2 $ 52.6 $ 43.0 $ 43.7 $ 27.9 $ 41.2
Discontinued operations..... (0.9) (3.1) (20.1)
Cumulative effect of change
in accounting principle... 43.9
-------- -------- -------- -------- -------- -------- --------
Net Income.............. $ 25.4 $ 36.1 $ 32.5 $ 86.9 $ 43.7 $ 27.9 $ 41.2
-------- -------- -------- -------- -------- -------- --------
-------- -------- -------- -------- -------- -------- --------
Earnings (Loss) per Common
Share:
Continuing operations....... $ 0.77 $ 1.07 $ 1.40 $ 1.14 $ 1.15 $ 0.73 $ 1.08
Discontinued operations..... (0.03) (0.08) (0.54)
Cumulative effect of change
in accounting principle... 1.16
-------- -------- -------- -------- -------- -------- --------
Total................... $ 0.74 $ 0.99 $ 0.86 $ 2.30 $ 1.15 $ 0.73 $ 1.08
-------- -------- -------- -------- -------- -------- --------
-------- -------- -------- -------- -------- -------- --------
Weighted Average Common
Shares Outstanding.......... 33.2 37.1 37.6 37.8 37.9 37.9 38.0
-------- -------- -------- -------- -------- -------- --------
-------- -------- -------- -------- -------- -------- --------
BALANCE SHEET DATA
Total Assets................ $1,874.3 $1,884.9 $2,006.1 $2,287.3 $2,432.3 $2,410.9 $2,500.3
-------- -------- -------- -------- -------- -------- --------
-------- -------- -------- -------- -------- -------- --------
Long-Term Obligations....... $1,377.8 $1,363.2 $1,473.1 $1,611.2 $1,579.8 $1,597.3 $1,570.4
-------- -------- -------- -------- -------- -------- --------
-------- -------- -------- -------- -------- -------- --------
Common Shareholders'
Equity...................... $ 145.3 $ 218.9 $ 253.8 $ 344.1 $ 389.9 $ 373.5 $ 432.1
-------- -------- -------- -------- -------- -------- --------
-------- -------- -------- -------- -------- -------- --------
Shareholders' Equity Per
Common Share................ $ 4.05 $ 5.84 $ 6.74 $ 9.08 $ 10.26 $ 9.83 $ 11.34
-------- -------- -------- -------- -------- -------- --------
-------- -------- -------- -------- -------- -------- --------
</TABLE>
- ------------
Net income in 1993 was reduced by $.12 per share for a net one-time charge due
to the adjustment of prior years' deferred income tax balances as a result of
the increased federal income tax rate.
14
<PAGE>
OGDEN CORPORATION AND SUBSIDIARIES
PRO FORMA CONSOLIDATED CONDENSED FINANCIAL INFORMATION
The following unaudited pro forma consolidated condensed statements of
income of Ogden are based on the historical statements of consolidated income of
Ogden for the year ended December 31, 1993 and for the nine month period ended
September 30, 1994 adjusted to give effect to the Merger as if the Merger had
been consummated on January 1, 1993. The following unaudited pro forma
consolidated condensed balance sheets are based on the historical consolidated
balance sheets of Ogden at December 31, 1993 and at September 30, 1994 adjusted
to give effect to the Merger assuming the Merger had been consummated as of the
dates thereof. Additionally, the unaudited pro forma consolidated condensed
financial information has been prepared (i) assuming an Exchange Ratio of 0.84
shares of Ogden Common Stock for each share of OPI Common Stock and with an
assumed price per share of Ogden Common Stock of $21.00 (the closing price per
share of Ogden Common Stock on September 30, 1994) for all periods presented and
(ii) based on the number of shares of OPI Common Stock (other than shares of OPI
Common Stock held by Ogden) outstanding on September 30, 1994 assuming that none
of the OPI stock options outstanding on September 30, 1994 are exercised prior
to the Merger. Based on such assumptions, 6,094,000 shares of OPI Common Stock
will be exchanged for 5,119,000 shares of Ogden Common Stock. The unaudited pro
forma consolidated condensed financial information should be read in conjunction
with the audited consolidated financial statements and related notes contained
in Ogden's and OPI's Annual Reports on Form 10-K for the year ended December 31,
1993, the unaudited condensed consolidated financial statements and related
notes contained in Ogden's and OPI's Quarterly Reports on Form 10-Q for the
period ended September 30, 1994 and OPI's Current Report on Form 8-K dated
September 27, 1994, all incorporated herein by reference (see "Incorporation of
Certain Information by Reference"). The pro forma combined results are not
necessarily indicative of the results which actually would have been attained if
the Merger had been consummated at the beginning of the respective periods
presented, nor are the pro forma combined results of operations for the nine
months ended September 30, 1994 necessarily indicative of the results to be
expected for the full 1994 year.
15
<PAGE>
OGDEN CORPORATION AND SUBSIDIARIES
PRO FORMA CONSOLIDATED CONDENSED BALANCE SHEETS
(IN THOUSANDS, EXCEPT PER SHARE AMOUNTS)
(UNAUDITED)
<TABLE>
<CAPTION>
DECEMBER 31, 1993 SEPTEMBER 30, 1994
----------------------------------------- -----------------------------------------
ACQUISITION ACQUISITION
OF OGDEN OF OGDEN
PROJECTS, INC. PRO FORMA PROJECTS, INC. PRO FORMA
HISTORICAL MINORITY COMBINED HISTORICAL MINORITY COMBINED
---------- -------------- ---------- ---------- -------------- ----------
<S> <C> <C> <C> <C> <C> <C>
ASSETS
OPERATIONS OTHER THAN WASTE-TO-ENERGY:
Current Assets:
Cash, cash equivalents and marketable
securities available for sale............... $ 199,786 $ 199,786 $ 212,860 $ 212,860
Receivables.................................. 375,532 375,532 402,583 402,583
Other........................................ 29,835 29,835 42,260 42,260
---------- ---------- ---------- ----------
Total current assets...................... 605,153 605,153 657,703 657,703
Property, plant and equipment-net............ 130,439 130,439 132,395 132,395
Other assets................................. 281,255 $ 49,862(a) 331,117 303,752 $ 42,366(b) 346,118
---------- ------- ---------- ---------- ------- ----------
Total..................................... 1,016,847 49,862 1,066,709 1,093,850 42,366 1,136,216
---------- ------- ---------- ---------- ------- ----------
WASTE-TO-ENERGY OPERATIONS:
Cash......................................... 3,558 3,558 7,368 7,368
Receivables.................................. 224,561 224,561 246,161 246,161
Restricted funds held in trust............... 359,416 359,416 326,039 326,039
Property, plant and equipment-net............ 1,563,362 1,563,362 1,601,621 1,601,621
Other assets................................. 144,766 144,766 135,306 135,306
---------- ---------- ---------- ----------
Total..................................... 2,295,663 2,295,663 2,316,495 2,316,495
---------- ------- ---------- ---------- ------- ----------
CONSOLIDATED ASSETS.......................... $3,312,510 $ 49,862 $3,362,372 $3,410,345 $ 42,366 $3,452,711
---------- ------- ---------- ---------- ------- ----------
---------- ------- ---------- ---------- ------- ----------
LIABILITIES AND SHAREHOLDERS' EQUITY
OPERATIONS OTHER THAN WASTE-TO-ENERGY:
Current liabilities:
Current portion of long-term debt............ $ 3,070 $ 3,070 $ 3,889 $ 3,889
Accounts payable and accrued expenses,
etc.......................................... 179,449 $ 4,000(a) 183,449 214,531 $ 4,000(b) 218,531
---------- ------- ---------- ---------- ------- ----------
Total current liabilities................. 182,519 4,000 186,519 218,420 4,000 222,420
Long-term debt............................... 247,640 247,640 250,446 250,446
Deferred income taxes and other
liabilities.................................. 139,889 139,889 153,001 153,001
Minority interest in subsidiaries............ 61,981 (61,637)(a) 344 69,547 (69,133)(b) 414
Convertible subordinated debentures.......... 151,750 151,750 151,750 151,750
---------- ------- ---------- ---------- ------- ----------
Total..................................... 783,779 (57,637) 726,142 843,164 (65,133) 778,031
---------- ------- ---------- ---------- ------- ----------
WASTE-TO-ENERGY OPERATIONS:
Accounts payable and accrued expenses,
etc.......................................... 181,453 181,453 165,581 165,581
Project debt:
Revenue bonds issued by and prime
responsibility of municipalities............ 1,210,935 1,210,935 1,203,970 1,203,970
Revenue bonds issued by municipal agencies
with sufficient service revenues guaranteed
by third parties............................. 340,431 340,431 338,051 338,051
Other borrowings............................. 28,423 28,423 28,423 28,423
Deferred income taxes, deferred income and
other liabilities............................ 281,222 281,222 332,200 332,200
---------- ---------- ---------- ----------
Total..................................... 2,042,464 2,042,464 2,068,225 2,068,225
---------- ------- ---------- ---------- ------- ----------
CONSOLIDATED LIABILITIES 2,826,243 (57,637) 2,768,606 2,911,389 (65,133) 2,846,256
---------- ------- ---------- ---------- ------- ----------
SHAREHOLDERS' EQUITY:
Serial cumulative convertible preferred
stock, par value $1.00 per share............ 57 57 54 54
Common stock, par value $.50 per share;
authorized, 80,000,000 shares............... 21,750 2,560(a) 24,310 21,809 2,560(b) 24,369
Capital surplus.............................. 100,223 104,939(a) 205,162 101,912 104,939(b) 206,851
Earned surplus............................... 370,231 370,231 379,429 379,429
Other........................................ (5,994) (5,994) (4,248) (4,248)
---------- ------- ---------- ---------- ------- ----------
Total..................................... 486,267 107,499 593,766 498,956 107,499 606,455
---------- ------- ---------- ---------- ------- ----------
CONSOLIDATED LIABILITIES AND SHAREHOLDERS'
EQUITY....................................... $3,312,510 $ 49,862 $3,362,372 $3,410,345 $ 42,366 $3,452,711
---------- ------- ---------- ---------- ------- ----------
---------- ------- ---------- ---------- ------- ----------
Shareholders' Equity Per Outstanding Common
Share........................................ $ 11.15 $ 12.19 $ 11.41 $ 12.42
Number of outstanding shares in
calculation.................................. 43,499 48,618 43,617 48,736
</TABLE>
See Notes to Pro Forma Consolidated Condensed Financial Information
16
<PAGE>
OGDEN CORPORATION AND SUBSIDIARIES
PRO FORMA CONSOLIDATED CONDENSED STATEMENTS OF INCOME
(IN THOUSANDS, EXCEPT PER SHARE AMOUNTS)
(UNAUDITED)
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER 31, 1993 NINE MONTHS ENDED SEPTEMBER 30, 1994
---------------------------------------- ----------------------------------------
ACQUISITION ACQUISITION
OF OGDEN OF OGDEN
PROJECTS, INC. PRO FORMA PROJECTS, INC. PRO FORMA
HISTORICAL MINORITY AMOUNT HISTORICAL MINORITY AMOUNT
---------- -------------- ---------- ---------- -------------- ----------
<S> <C> <C> <C> <C> <C> <C>
OPERATIONS OTHER THAN
WASTE-TO-ENERGY:
Net sales and service
revenues............... $1,358,277 $1,358,277 $1,046,769 $1,046,769
---------- ---------- ---------- ----------
Cost of goods sold and
operating expenses..... 1,192,531 $ 1,453(c) 1,193,984 916,703 $ 1,090(c) 917,793
Selling, administrative
and general expenses... 109,153 109,153 85,982 85,982
---------- ------- ---------- ---------- -------------- ----------
Total costs and
expenses............... 1,301,684 1,453 1,303,137 1,002,685 1,090 1,003,775
---------- ------- ---------- ---------- -------------- ----------
Operating income... 56,593 (1,453) 55,140 44,084 (1,090) 42,994
---------- ------- ---------- ---------- -------------- ----------
WASTE-TO-ENERGY
OPERATIONS:
Service and
construction
revenues............... 681,060 681,060 506,967 506,967
---------- ---------- ---------- ----------
Operating and
construction costs..... 489,498 489,498 353,410 353,410
Selling, administrative
and general expenses... 16,066 16,066 16,152 16,152
Debt service charges... 98,664 98,664 75,315 75,315
Other deductions
(income)--net.......... (946) (946) (569) (569)
---------- ---------- ---------- ----------
Total costs and
expenses............... 603,282 603,282 444,308 444,308
---------- ---------- ---------- ----------
Operating income... 77,778 77,778 62,659 62,659
---------- ------- ---------- ---------- -------------- ----------
Consolidated operating
income................. 134,371 (1,453) 132,918 106,743 (1,090) 105,653
Interest income........ 9,181 9,181 8,506 8,506
Interest expense....... (20,289) (20,289) (16,915) (16,915)
Other income
(deductions)--net...... 2,238 2,238 610 610
---------- ------- ---------- ---------- -------------- ----------
Income from operations
before income taxes
and minority
interest............... 125,501 (1,453) 124,048 98,944 (1,090) 97,854
Less: income taxes..... 56,526 56,526 40,567 40,567
minority interest...... 6,845 (6,886)(d) (41) 6,667 (6,542)(d) 125
---------- ------- ---------- ---------- -------------- ----------
Income from operations
before cumulative
effect of changes in
accounting
principles............. $ 62,130 $ 5,433 $ 67,563 $ 51,710 $ 5,452 $ 57,162
---------- ------- ---------- ---------- -------------- ----------
---------- ------- ---------- ---------- -------------- ----------
Earnings per share:
Primary................ $ 1.43 $ 1.39 $ 1.18 $ 1.17
Fully diluted.......... $ 1.42 $ 1.38 $ 1.17 $ 1.16
Number of shares in
calculation:
Primary................ 43,378 48,497 43,565 48,684
Fully diluted.......... 43,776 48,895 43,896 49,015
</TABLE>
See Notes to Pro Forma Consolidated Condensed Financial Information
17
<PAGE>
NOTES TO OGDEN CORPORATION PRO FORMA CONSOLIDATED
CONDENSED FINANCIAL INFORMATION
(UNAUDITED)
(a) The Merger would be accounted for under the purchase method of
accounting at December 31, 1993 as follows:
<TABLE>
<CAPTION>
DEBIT CREDIT DESCRIPTION
-------- -------- ----------------------------------
<S> <C> <C> <C>
(IN THOUSANDS)
Minority interest in
subsidiaries...................... $ 61,637 To eliminate the minority interest
in OPI.
Other assets...................... 49,862 To record the excess of cost over
net assets acquired.
Accounts payable.................. $ 4,000 To record expenses associated with
the Merger.
Common stock...................... 2,560 To record the issuance of 5.119
million shares of Ogden Common
Stock at par value.
Capital surplus................... 104,939 To record the excess of fair value
of the Ogden Common Stock issued
over its par value.
-------- --------
$111,499 $111,499
-------- --------
-------- --------
</TABLE>
(b) The Merger would be accounted for under the purchase method of
accounting at September 30, 1994 as follows:
<TABLE>
<CAPTION>
DEBIT CREDIT DESCRIPTION
-------- -------- ----------------------------------
<S> <C> <C> <C>
(IN THOUSANDS)
Minority interest in
subsidiaries...................... $ 69,133 To eliminate the minority interest
in OPI.
Other assets...................... 42,366 To record the excess of cost over
net assets acquired.
Accounts payable.................. $ 4,000 To record expenses associated with
the Merger.
Common stock...................... 2,560 To record the issuance of 5.119
million shares of Ogden Common
Stock at par value.
Capital surplus................... 104,939 To record the excess of fair value
of the Ogden Common Stock issued
over its par value.
-------- --------
$111,499 $111,499
-------- --------
-------- --------
</TABLE>
The pro forma balance sheet at the effective date of the Merger will reflect
an increase or decrease of approximately $1,280,000 in excess of cost over net
assets acquired and shareholders' equity from the pro forma amounts shown at
December 31, 1993 and September 30, 1994 for each $0.25 increase or decrease in
the Ogden Common Stock share price at such effective date from the assumed pro
forma price of $21.00 per share.
(c) Represents the amortization of the cost in excess of net assets acquired
over an assumed 40-year period. Ogden will be required to determine the actual
amount of excess of cost over net assets acquired as of the effective date of
the Merger. Such determination will be based on the proportionate fair value of
OPI's net assets as of the effective date of the Merger.
(d) Represents the elimination of the portion of OPI's earnings attributable
to the acquired minority interest.
(e) The pro forma financial statements do not include 290,921 shares of
Ogden Common Stock which are reserved for issuance due to Ogden's assumption of
346,334 options outstanding under OPI's stock option plan as of September 30,
1994.
18
<PAGE>
COMPARATIVE PER SHARE DATA
The following table presents certain of Ogden's and OPI's historical per
share data as set forth in "Ogden Corporation and Subsidiaries Selected
Historical Consolidated Financial Data" and "Ogden Projects, Inc. and
Subsidiaries Selected Historical Consolidated Financial Data," and unaudited pro
forma per share data to reflect consummation of the Merger on the basis set
forth in "Ogden Corporation and Subsidiaries Pro Forma Consolidated Condensed
Financial Information" included elsewhere herein. The unaudited pro forma
consolidated condensed financial information does not purport to be indicative
of the results that would actually have been attained had the Merger been
completed as assumed in such pro forma information. The information contained in
the table set forth below should be read in conjunction with "Ogden Corporation
and Subsidiaries Pro Forma Consolidated Condensed Financial Information" and
with the historical consolidated financial statements and related notes included
in Ogden's and OPI's Annual Reports on Form 10-K for the year ended December 31,
1993 and Ogden's and OPI's Quarterly Reports on Form 10-Q for the period ended
September 30, 1994, incorporated herein by reference.
<TABLE>
<CAPTION>
YEAR ENDED NINE MONTHS
DECEMBER 31, ENDED SEPTEMBER 30,
1993 1994
--------------------------- -----------------------------
HISTORICAL(1) PRO FORMA(2) HISTORICAL(1) PRO FORMA(2)
------------ ------------ -------------- ------------
<S> <C> <C> <C> <C>
Earnings Per Common Share:
Ogden (per Ogden share)................ $ 1.43 $ 1.39 $ 1.18 1.17
OPI (per OPI share/share equivalent)... $ 1.15 $ 1.17 $ 1.08 $ 0.98
Earnings Per Common Share Assuming Full
Dilution:
Ogden (per Ogden share)................ $ 1.42 $ 1.38 $ 1.17 $ 1.16
OPI (per OPI share/share equivalent)... $ 1.15 $ 1.16 $ 1.08 $ 0.97
Shareholders' Equity Per Common Share:
Ogden (per Ogden share)................ $11.15 $12.19 $11.41 $12.42
OPI (per OPI share/share equivalent)... $10.26 $10.24 $11.34 $10.43
Cash Dividends Per Common Share:
Ogden (per Ogden share)................ $ 1.25 $ 1.25 $ 0.94 $ 0.94
OPI (per OPI share/share equivalent)... $ 0.00 $ 1.05 $ 0.00 $ 0.79
</TABLE>
- ------------
(1) All earnings per common share amounts for Ogden and OPI are before
cumulative effect of changes in accounting principles.
(2) The OPI pro forma per share equivalent data was computed by multiplying the
Ogden per share pro forma information by the Exchange Ratio of 0.84.
19
<PAGE>
THE SPECIAL MEETING
GENERAL
This Proxy Statement is being furnished to the holders of record as of the
Record Date of OPI Common Stock in connection with the solicitation of proxies
on behalf of the Board of Directors of OPI from such holders at the Special
Meeting.
At the Special Meeting, OPI stockholders will be asked to approve and adopt
the Merger Agreement and the Appraisal Rights Amendment. A copy of the Merger
Agreement is attached hereto as Exhibit A, and a copy of the Appraisal Rights
Amendment is attached hereto as Exhibit B. As a result of the Merger, OPI will
become a wholly owned subsidiary of Ogden. In the Merger, each outstanding share
of OPI Common Stock (other than shares held by Ogden and its subsidiaries and
Dissenting Shares) will be converted into the right to receive (i) 0.84 shares
of Ogden Common Stock and (ii) for each whole share of Ogden Common Stock issued
in connection with the Merger, one Right. OPI stockholders who otherwise would
be entitled to fractional shares of Ogden Common Stock will receive cash in lieu
of fractional shares. See "The Merger Agreement--Conversion of OPI Common
Stock."
Approval and effectiveness of the Appraisal Rights Amendment is a condition
to the consummation of the Merger. Accordingly, holders of OPI Common Stock who
follow the procedures set forth in Section 262 of the DGCL (including making a
timely written demand for appraisal rights) will be entitled to appraisal rights
in connection with the Merger. See "The Merger--Appraisal Rights" and "The
Appraisal Rights Amendment."
A SPECIAL COMMITTEE OF INDEPENDENT DIRECTORS OF OPI'S BOARD OF DIRECTORS HAS
UNANIMOUSLY DETERMINED THAT THE TERMS OF THE MERGER ARE FAIR FROM A FINANCIAL
POINT OF VIEW TO OPI'S STOCKHOLDERS (OTHER THAN OGDEN AND ITS AFFILIATES), AND
HAS RECOMMENDED THAT SUCH OPI STOCKHOLDERS AND THE OPI BOARD VOTE FOR APPROVAL
AND ADOPTION OF THE MERGER AGREEMENT AND THE TRANSACTIONS CONTEMPLATED THEREBY.
BASED ON SUCH RECOMMENDATION, THE OPI BOARD HAS UNANIMOUSLY APPROVED THE MERGER
AGREEMENT AND THE TRANSACTIONS CONTEMPLATED THEREBY AND APPROVED THE APPRAISAL
RIGHTS AMENDMENT AND RECOMMENDS APPROVAL AND ADOPTION OF THE MERGER AGREEMENT
AND APPROVAL OF THE APPRAISAL RIGHTS AMENDMENT BY OPI'S STOCKHOLDERS.
Ogden has filed a Registration Statement pursuant to the Securities Act
covering the shares of Ogden Common Stock to be issued in the Merger, and this
Proxy Statement also constitutes the Prospectus of Ogden filed with respect to
such shares. The information contained in this Proxy Statement with respect to
Ogden and its affiliates (other than OPI and its subsidiaries) has been supplied
by Ogden, and the information with respect to OPI and its subsidiaries has been
supplied by OPI. This Proxy Statement and the enclosed form of proxy are being
mailed to the stockholders of OPI on or about November 29, 1994.
VOTE REQUIRED
Pursuant to the OPI Certificate, the affirmative vote of the holders of
two-thirds of the shares of OPI Common Stock outstanding on the Record Date is
required to approve and adopt the Merger Agreement. The affirmative vote of the
holders of a majority of the shares of OPI Common Stock outstanding on the
Record Date is required to approve the Appraisal Rights Amendment. The presence,
in person or by proxy, of holders of record of a majority of the shares of OPI
Common Stock entitled to vote constitutes a quorum for action at the Special
Meeting.
As of the Record Date, there were outstanding 38,093,975 shares of OPI
Common Stock, which were held by approximately 4,745 stockholders of record. As
of the Record Date, Ogden owned 32,000,000 shares of OPI Common Stock,
constituting approximately 84% of such outstanding shares, and therefore has
sufficient voting power to approve all matters to be considered at the Special
Meeting,
20
<PAGE>
regardless of the vote of any other stockholder. Ogden will vote its shares of
OPI Common Stock in favor of the Merger and the Appraisal Rights Amendment.
Accordingly, stockholder approval and adoption of the Merger Agreement and the
Appraisal Rights Amendment is assured. Nevertheless, the Board of Directors of
OPI is soliciting the votes of holders (other than Ogden and its affiliates) of
OPI Common Stock (the "Unaffiliated OPI Stockholders") in favor of approval and
adoption of the Merger Agreement and approval of the Appraisal Rights Amendment.
VOTING RIGHTS AND PROXIES
Only stockholders of record of OPI at the close of business on the Record
Date will be entitled to notice of and to vote at the Special Meeting. Each
holder of OPI Common Stock is entitled to one vote for each share of stock held
by him or her on all matters to be voted upon at the Special Meeting. As of the
Record Date, there were unexercised options outstanding to purchase 346,334
shares of OPI Common Stock. Because those options were unexercised as of the
Record Date, shares issued upon exercise of those options will not be eligible
to be voted at the Special Meeting.
Unless revoked prior to exercise, all proxies representing shares of OPI
Common Stock entitled to vote which are delivered pursuant to this solicitation
will be voted at the Special Meeting. Where the stockholder's choice has been
specified on the proxy, the proxy will be voted in accordance with such
specification. If a choice is not indicated, the proxy will be voted "FOR"
approval and adoption of the Merger Agreement and approval of the Appraisal
Rights Amendment. Abstentions and failures to vote (including broker non-votes)
will have the same effect as votes "AGAINST" approval and adoption of the Merger
Agreement or approval of the Appraisal Rights Amendment, as the case may be.
If the enclosed proxy is executed and returned, it may nevertheless be
revoked at any time prior to the voting thereof (i) by filing a written notice
of revocation thereof or a duly executed proxy bearing a later date with the
Secretary of OPI, (ii) by giving written notice of death or incapacity to OPI,
or (iii) as to any matter presented at the Special Meeting, by voting in person
upon such matter. The execution of the enclosed proxy will not affect a
stockholder's right to vote at the Special Meeting in person should a
stockholder later find it convenient to attend the Special Meeting and desire to
vote in person.
Management does not intend to present to the meeting any matters not set
forth in the Proxy Statement and does not currently know of any matters that may
be presented to the Special Meeting by others. However, if other matters
properly come before the Special Meeting, the persons named in the enclosed form
of proxy and acting thereunder will have discretion to vote the proxy on such
matters in accordance with their judgment.
Proxies will be solicited for use at the Special Meeting primarily by mail.
However, proxies may also be solicited personally and by telephone and telegraph
by regular employees of OPI who will receive no additional compensation
therefor. OPI has engaged the proxy solicitation firm of Georgeson & Company
Inc. to assist in the solicitation of proxies at an estimated cost to OPI of
$7,500. OPI will reimburse the brokers and other persons holding shares of OPI
Common Stock registered in their names or in the names of their nominees for
their expenses incurred in sending proxy material to and obtaining proxies from
the beneficial owners of such shares.
Except for payments which become due and payable to holders of Dissenting
Shares who exercise appraisal rights, which payments shall be made by the
Surviving Corporation out of its own funds, if the Merger is consummated, all
costs and expenses incurred in connection with the Merger Agreement and the
transactions contemplated thereby will be paid by Ogden. If the Merger is not
consummated, all costs and expenses incurred in connection with the Merger
Agreement and the transactions contemplated thereby will be paid by the party
incurring such expenses, except that Ogden and OPI will each bear one-half of
the aggregate expenses incurred in connection with printing the Registration
Statement and this Proxy Statement and the filing thereof with the Commission.
OPI STOCKHOLDERS SHOULD NOT SEND ANY STOCK CERTIFICATES WITH THEIR PROXY
CARDS AT THIS TIME. INSTRUCTIONS WITH RESPECT TO THE SURRENDER OF SUCH STOCK
CERTIFICATES WILL BE FURNISHED TO ALL OPI STOCKHOLDERS OF RECORD AS SOON AS
PRACTICABLE AFTER THE EFFECTIVE TIME OF THE MERGER. SEE "THE MERGER
AGREEMENT--EXCHANGE OF OPI STOCK CERTIFICATES."
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THE MERGER
BACKGROUND OF THE MERGER
OPI was organized as a wholly owned subsidiary of Ogden in 1984 to use the
exclusive United States rights to the mass-burn waste-to-energy technology
developed by Martin GmbH fur Umwelt - und Energietechnik of West Germany (the
"Martin Technology"). OPI completed its first waste-to-energy project in 1986.
On August 9, 1989, OPI consummated its initial public offering of 2,875,000
shares of OPI Common Stock, which resulted in Ogden owning approximately 92.8%
of the issued and outstanding OPI Common Stock. The proceeds from the initial
offering were used to repay a portion of certain indebtedness owed to Ogden.
During December 1989, Ogden purchased 998,046 shares of OPI Common Stock
from OPI for distribution on January 9, 1990 as a supplemental dividend to
Ogden's common stockholders of record on December 14, 1989. After giving effect
to such purchase and distribution of the supplemental dividend, Ogden owned
approximately 89% of the issued and outstanding OPI Common Stock. On March 21,
1990, OPI sold an aggregate of 1.5 million shares of OPI Common Stock in a
public offering, the proceeds of which were used primarily to repay intercompany
debt. This offering resulted in Ogden owning approximately 85.6% of OPI's issued
and outstanding Common Stock. As a result of subsequent issuances of OPI Common
Stock pursuant to the exercise of employee stock options, Ogden as of the Record
Date owned approximately 84% of the outstanding shares of OPI Common Stock.
On June 6, 1994, Ogden made an offer to the OPI Board of Directors to
acquire in a merger transaction the shares of OPI Common Stock not owned by
Ogden, pursuant to which holders of OPI Common Stock would receive, in exchange
for each share of OPI Common Stock, 0.78 shares of Ogden Common Stock (referred
to herein as the "Initial Offer"). The Initial Offer was expressly subject to
the approval thereof by a special committee of independent directors of OPI and
execution of a definitive merger agreement. At a meeting of the OPI Board of
Directors on June 6, 1994, the Board determined that the proposed business
combination between Ogden and OPI should be reviewed and negotiated by members
of the Board of Directors of OPI who were not also directors, officers or
employees of Ogden or officers or employees of OPI. Accordingly, the OPI Board
of Directors unanimously approved the appointment of a special committee,
consisting of William M. Batten and Jeffrey F. Friedman (the "Special
Committee"), neither of whom is a director, officer or employee of Ogden nor an
officer or employee of OPI, to review, negotiate and make recommendations to the
OPI Board of Directors concerning the Initial Offer, and authorized the Special
Committee to retain advisors and take all other actions that it deemed necessary
to the proper and complete conduct of any such review, negotiation and
recommendation.
Prior to the commencement of trading on June 6, 1994, Ogden and OPI publicly
announced the terms of the Initial Offer and the formation of the Special
Committee. Shortly after the announcement, nine class action civil suits (the
"Class Action Lawsuits") were filed by persons alleging or claiming to be
stockholders of OPI (the "Class Action Plaintiffs") against, among others,
Ogden, OPI and OPI's directors (the "Individual Defendants") in respect of the
Initial Offer. See "--Litigation Relating to the Merger."
After its formation, the Special Committee retained independent legal
advisors. After such retention, but prior to commencing negotiations with Ogden
regarding the Initial Offer, the Special Committee requested and obtained from
OPI separate indemnification agreements for each of its members, which, among
other things, restated such directors' entitlement to indemnification under
OPI's Bylaws and specified or clarified certain procedures and presumptions
which would apply to claims thereunder in connection with the Initial Offer or
any revision thereof, and obligated OPI to maintain for a period of not less
than three years, subject to certain limitations, the directors' and officers'
liability insurance policies currently maintained by OPI. See "The
Merger--Conflicts of Interest."
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The Special Committee thereafter discussed with its legal advisors the
procedures to be followed in evaluating the Initial Offer, including the
retention of a financial advisor. After conducting interviews of several
nationally recognized investment banking firms in June 1994, the Special
Committee retained the investment banking firm of CS First Boston Corporation
("First Boston") to serve as financial advisor to the Special Committee and, if
requested, to render an opinion as to the fairness from a financial point of
view of the consideration to be received by the Unaffiliated OPI Stockholders in
a business combination involving Ogden and OPI. The primary factors addressed by
the Special Committee in the selection of its financial advisor were the
prospective advisor's independence, negotiating ability, and understanding of
the issues particular to the proposed transaction. At a meeting held on June 20,
1994, after retaining First Boston, the Special Committee discussed with First
Boston in general terms the evaluation process and analysis that First Boston
would undertake pursuant to its engagement.
From June 20, 1994 through September 2, 1994, the Special Committee and its
advisors reviewed certain public and non-public information with respect to
Ogden and OPI, and representatives of the Special Committee's advisors met on
several occasions with members of management of both companies to discuss the
respective business and financial condition and prospects of Ogden and OPI.
At a telephonic meeting of the Special Committee held on September 3, 1994,
the Special Committee's advisors reported on their activities to date. First
Boston presented an overview of OPI as well as the U.S. and global
waste-to-energy industry generally, and the Special Committee discussed OPI's
potential ability to develop both its existing business and related businesses
in the U.S. and non-U.S. markets. First Boston and the Special Committee also
discussed theoretical approaches to valuations of OPI and Ogden. The discussion
focused on the appropriate assumptions as to OPI's future business growth and on
the contribution of OPI's results of operations and cash flows to Ogden's
financial performance. The discussion also included consideration of the
possibility of an all-cash or part-cash alternative to the Initial Offer, and on
various negotiating strategies to be utilized. The Special Committee briefly
discussed other, non-price terms which might be appropriate to seek to be
included in any definitive merger agreement, such as "floor" or "collar"
provisions and procedural protections such as "majority-of-the-minority"
provisions. First Boston advised the Special Committee of its preliminary view
that the exchange ratio of 0.78 contained in the Initial Offer was not
unreasonable and formed a reasonable basis to commence negotiations. After
consultation with First Boston, the Special Committee decided to take an
aggressive position in seeking to persuade Ogden to offer an improved exchange
ratio, and it was determined that as a starting point for negotiation the
Special Committee would suggest to Ogden an exchange ratio of .936 shares of
Ogden Common Stock for each share of OPI Common Stock.
On September 6, 1994, First Boston conveyed to Ogden's financial advisor,
Goldman, Sachs & Co. ("Goldman Sachs"), the Special Committee's view that the
Initial Offer was unacceptably low and that the Special Committee had suggested
an exchange ratio of 0.936 shares of Ogden Common Stock for each share of OPI
Common Stock. After being informed of this conversation, Ogden rejected the
suggested 0.936 exchange ratio as being too high, and advised the Special
Committee that in its view the Initial Offer itself was a fully priced and fair
proposal.
Over the ensuing two weeks, a series of discussions between First Boston and
Goldman Sachs took place in which the two investment banking firms reviewed
their respective methodologies, the issues pertinent to their valuations, and
the bases for their respective clients' positions as to the appropriate exchange
ratio.
On September 16, 1994, First Boston reported to the Special Committee at a
telephonic meeting on the discussions with Goldman Sachs that had occurred since
the Special Committee's meeting on September 3, 1994. First Boston advised the
Special Committee that the principal discrepancy between the positions being
advocated on behalf of Ogden and the Special Committee related to the
appropriate valuation to be placed on the new businesses (such as the non-U.S.
waste-to-energy business, independent power projects that utilize fuels other
than waste and the wastewater treatment business) which
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OPI was seeking to enter. Ogden was firmly of the view that in light of OPI's
relatively recent focus on these new businesses, the impact of such new
businesses on the valuation of OPI was very difficult to measure and, in any
case, highly speculative. First Boston advised the Special Committee that this
position was not unreasonable, but that in seeking to negotiate a higher
exchange ratio, it would be reasonable to assert that a higher valuation for the
new businesses should be used. Ogden contended that, because OPI would represent
a very large percentage of Ogden's total operations following a merger, the
benefits of any success should increase the value of the Ogden Common Stock to
be received by the Unaffiliated OPI Stockholders in a merger. The Special
Committee instructed First Boston to continue its discussions with Goldman Sachs
in an effort to obtain a higher offer.
Discussions between representatives of Ogden and the Special Committee
continued. On September 19, 1994, after a series of discussions, Goldman Sachs
indicated to First Boston that Ogden would be prepared to proceed with a merger
on the basis of 0.80 shares of Ogden Common Stock for each share of OPI Common
Stock. First Boston informed Goldman Sachs that it anticipated that such a
revised offer would not be acceptable to the Special Committee, but that it
would get back to Goldman Sachs.
Later on September 19, 1994, the Special Committee met with its professional
advisors. First Boston reported on its negotiations with Goldman Sachs and
discussed with the Special Committee a response to the suggestion of a possible
0.80 exchange ratio. The Special Committee discussed with its advisors what was
the highest exchange ratio Ogden might reasonably be expected to make, in light
of its approach to date in the negotiations. It was concluded that the highest
exchange ratio Ogden could be expected to offer was 0.84, and Ogden might well
refuse to make an offer even that high. The Special Committee did not at this
point request, nor did First Boston render, an opinion as to the fairness of the
Initial Offer or any other exchange ratio. First Boston did advise the Special
Committee, however, that, subject to completion of its "due diligence"
investigation of Ogden and OPI and the internal review and approval of First
Boston's investment banking committee and assuming no change in the financial
position of either Ogden or OPI or the market, that it expected to be able to
deliver a favorable fairness opinion with respect to any exchange ratio greater
than 0.80. The Special Committee instructed First Boston to continue its
discussions with Goldman Sachs.
Following the Special Committee's meeting, on the evening of September 19,
the Special Committee's rejection of the suggested exchange ratio of 0.80 was
communicated to Goldman Sachs on behalf of Ogden. Ogden's representatives stated
that it was unlikely that Ogden would be prepared to increase the exchange ratio
further. The Special Committee's representatives stated that if the exchange
ratio were increased to 0.84, the Special Committee might be willing to approve
the transaction, subject to the completion of First Boston's due diligence
inquiries and the internal review process as described above.
At a meeting of the OPI Board of Directors held on September 20, 1994, the
Special Committee reported on the status of its negotiations with Ogden. The
Special Committee did not advise the OPI Board of its negotiating strategy or as
to what terms it might deem adequate.
In addition, on September 16, 20 and 21, 1994, a series of discussions among
the various parties and their respective advisors took place regarding the
contents of the draft merger agreement which had been proposed by Ogden. Those
negotiations focused on, among other things, a provision proposed on behalf of
the Special Committee, and initially rejected by Ogden, to the effect that OPI's
obligation to consummate a merger transaction should be subject to the condition
that First Boston's fairness opinion has not been withdrawn. The Special
Committee's representatives contended, among other things, that in the absence
of the requested provision, the Special Committee would want the definitive
merger agreement to include a minimum value provision for Ogden Common Stock as
of the consummation of the Merger and covenants by Ogden with respect to its
dividend policy pending consummation of the Merger. Ogden's representatives
initially objected to such a provision entirely, and subsequently objected to
such a provision to the extent that it would apply if the fairness opinion were
withdrawn after the mailing of the OPI proxy statement in connection with the
Merger or for reasons related to
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changes in market conditions generally, as opposed to changes in the respective
businesses or prospects of OPI or Ogden.
On September 22, 1994, counsel for Ogden met with representatives of the
Class Action Plaintiffs to discuss the status of negotiations with the Special
Committee, to solicit the Class Action Plaintiffs' views on financial and other
terms of a potential transaction and to discuss the possibility of settlement of
the Class Action Lawsuits simultaneously with execution of a definitive merger
agreement. The representatives of the Class Action Plaintiffs informed Ogden
that the exchange ratio of 0.84 requested by the Special Committee was, in their
view, in the range of fairness, and they urged Ogden to accept it. The
representatives of the Class Action Plaintiffs also requested that Ogden
consider establishing a minimum market value at closing for the Ogden Common
Stock to be issued in the Merger, make consummation of the Merger subject to
approval by a majority of the shares voted by the Unaffiliated OPI Stockholders
and/or cause statutory appraisal rights to be offered to the Unaffiliated OPI
Stockholders who dissented from the merger.
Later on September 22, the Ogden Board of Directors met and, after being
advised of the views of the Special Committee and the Class Action Plaintiffs,
unanimously authorized management to enter into an agreement and plan of Merger
providing for an exchange ratio of 0.84 and appraisal rights for stockholders of
OPI who dissented from the merger, on terms satisfactory to management, subject
to approval by the Special Committee and the OPI Board of Directors, the receipt
by the Special Committee of a fairness opinion from First Boston and the
acceptance of such terms as a basis for settlement of the Class Action Lawsuits
by counsel for the Class Action Plaintiffs.
Ogden and the Special Committee continued to negotiate the terms of the
merger agreement, and those negotiations were completed only shortly before a
meeting of the Special Committee held on September 27, 1994. The final terms of
the Merger Agreement include a provision allowing the Special Committee to
terminate the Merger Agreement at any time prior to the effective time of the
Merger (the "Effective Time") if First Boston withdraws its fairness opinion for
any reason, and a provision contemplating adoption of the Appraisal Rights
Amendment and making its effectiveness a condition to consummation of the
Merger.
At the meeting of the Special Committee held on September 27, 1994, the
Special Committee's professional advisors reported on the status of price
negotiations and merger agreement negotiations. First Boston made a presentation
to the Special Committee of the factors and analyses underlying its fairness
opinion process and then orally and in writing advised the Special Committee of
its opinion that the proposed Exchange Ratio of 0.84 was fair to the
Unaffiliated OPI Stockholders from a financial point of view. The Special
Committee discussed First Boston's opinion and unanimously concluded that the
terms of the Merger as proposed were fair from a financial point of view to the
Unaffiliated OPI Stockholders and unanimously determined to recommend approval
and adoption of the Merger Agreement to the full OPI Board of Directors and to
OPI's stockholders.
Immediately following the meeting of the Special Committee on September 27,
1994, a meeting of the OPI Board of Directors was held to consider and act upon
the report and recommendations of the Special Committee. The Special Committee
described its deliberations and the negotiations that had resulted in the
improvements to the Initial Offer, and reviewed with the Board the terms of the
proposed transaction as reflected in the proposed form of Merger Agreement.
Representatives of First Boston then reviewed for the OPI Board the financial
analyses underlying First Boston's fairness opinion that had been presented to
and discussed with the Special Committee. The Special Committee reported that on
the basis of its deliberations and in reliance on the opinion of First Boston,
it had unanimously determined that the terms of the Merger are fair, from a
financial point of view, to the Unaffiliated OPI Stockholders and determined to
recommend approval and adoption of the Merger Agreement and all of the
transactions contemplated by it to the OPI Board and to OPI's stockholders.
Based on the report and recommendations of the Special Committee, the OPI Board
unanimously concluded that the terms of the Merger are fair, from a financial
point of view, to the Unaffiliated OPI Stockholders, approved the Merger
Agreement and all of the transactions contemplated by it, approved the Appraisal
Rights
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Amendment and determined to recommend approval and adoption of the Merger
Agreement and approval of the Appraisal Rights Amendment by OPI's stockholders.
Following completion of the September 27, 1994 Special Committee and OPI
Board meetings, Ogden, OPI, the Individual Defendants and the Class Action
Plaintiffs, through their respective counsel, agreed in principle to settle the
Class Action Lawsuits, subject to various conditions, including court approval.
See "--Litigation Relating to the Merger." The definitive merger agreement was
executed and delivered by the respective parties thereto and a memorandum of
understanding (the "Memorandum of Understanding") was entered into by counsel
for all parties to the Class Action Lawsuits setting forth their settlement
agreement in principle.
RECOMMENDATION OF THE SPECIAL COMMITTEE
The Special Committee, in reaching the unanimous conclusion at its September
27, 1994 meeting that the terms of the Merger are fair, from a financial point
of view, to the Unaffiliated OPI Stockholders and in determining to recommend
approval and adoption of the Merger Agreement and all of the transactions
contemplated by it to the OPI Board and the OPI Stockholders, considered the
following factors:
1. The opinion of First Boston that the Exchange Ratio is fair to the
Unaffiliated OPI Stockholders from a financial point of view, and the
presentation by First Boston regarding the financial analyses underlying
that opinion. See "--Opinion of the Special Committee's Financial Advisor."
2. The scope and course of negotiations with Ogden and its
representatives, including the improvements in the final financial terms of
the Merger over the Initial Offer and the Special Committee's belief that
the Exchange Ratio of 0.84 was the highest exchange ratio Ogden was prepared
to offer.
3. A review with the Special Committee's legal and financial advisors of
the terms of the Merger Agreement, including (i) the provision pursuant to
which the Special Committee can terminate the Merger Agreement if at any
time prior to the Effective Time of the Merger, First Boston withdraws its
fairness opinion; and (ii) the provision providing for the Appraisal Rights
Amendment as a condition to consummation of the Merger (although the Special
Committee also considered the fact that the Merger Agreement does not
provide other protections sometimes used in similar transactions, including
"floor" or "collar" price protection mechanisms or "majority-of-
the-minority" provisions).
4. The fact that, following the Merger, OPI will represent a substantial
percentage of Ogden's revenues and earnings, and accordingly the
Unaffiliated OPI Stockholders who elect following the Merger to continue to
hold the Ogden Common Stock they receive in the Merger will have a
substantial continuing participation, through Ogden, in OPI's business. (For
example, if the Merger had been consummated at the beginning of 1994, on a
pro forma basis for the six months ended June 30, 1994, OPI would have
represented approximately 34% of Ogden' revenues and 68% of its net income.)
5. Historical financial information regarding Ogden and OPI and the
respective business outlook for each of Ogden and OPI.
6. The expectation that the Merger will be tax-free for federal income
tax purposes to Ogden, OPI and OPI's stockholders.
Based on the report and recommendations of the Special Committee, the Board
of Directors of OPI at its September 27, 1994 meeting unanimously concluded that
the terms of the Merger are fair, from a financial point of view, to the
Unaffiliated OPI Stockholders, approved the Merger Agreement and all of the
transactions contemplated thereby, approved the Appraisal Rights Amendment and
determined to
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recommend approval and adoption of the Merger Agreement and approval of the
Appraisal Rights Amendment by OPI's stockholders.
OPINION OF THE SPECIAL COMMITTEE'S FINANCIAL ADVISOR
General. First Boston was retained by the Special Committee to act as its
financial advisor in connection with the Special Committee's review and
evaluation of the Initial Offer and any transaction between Ogden and OPI
arising therefrom. First Boston is an internationally recognized investment
banking firm and was selected by the Special Committee based on First Boston's
experience and expertise. As part of its investment banking business, First
Boston regularly is engaged in the valuation of businesses and securities in
connection with mergers and acquisitions, negotiated underwritings, competitive
biddings, secondary distributions of listed and unlisted securities, private
placements and valuations for estate, corporate and other purposes.
In connection with First Boston's engagement, the Special Committee
requested that First Boston evaluate the fairness, from a financial point of
view, of the Exchange Ratio to the Unaffiliated OPI Stockholders. On September
27, 1994, First Boston rendered to the Special Committee a written opinion to
the effect that, as of such date and based upon and subject to certain matters
stated therein, the Exchange Ratio was fair to the Unaffiliated OPI Stockholders
from a financial point of view. First Boston subsequently confirmed its opinion
of September 27, 1994 by delivery of a written opinion dated the date of this
Proxy Statement, a copy of which is attached hereto as Exhibit D. The opinion of
First Boston dated the date of this Proxy Statement is substantially identical
to the opinion of First Boston dated September 27, 1994, and references herein
to the opinion of First Boston are, unless otherwise noted, references to its
opinion dated the date of this Proxy Statement.
THE FULL TEXT OF FIRST BOSTON'S WRITTEN OPINION DATED THE DATE HEREOF, WHICH
SETS FORTH THE ASSUMPTIONS MADE, MATTERS CONSIDERED AND LIMITATIONS ON THE
REVIEW UNDERTAKEN, IS ATTACHED AS EXHIBIT D TO THIS PROXY STATEMENT AND IS
INCORPORATED HEREIN BY REFERENCE. HOLDERS OF OPI COMMON STOCK ARE URGED TO READ
THIS OPINION CAREFULLY IN ITS ENTIRETY. First Boston's opinion is directed only
to the Special Committee and the fairness of the Exchange Ratio from a financial
point of view, and does not address any other aspect of the Merger. The summary
of the opinion of First Boston set forth in this Proxy Statement is qualified in
its entirety by reference to the full text of such opinion.
In arriving at its opinion, First Boston (i) reviewed the Merger Agreement,
the Registration Statement and certain publicly available business and financial
information relating to Ogden and OPI, (ii) reviewed certain other information,
including financial forecasts, provided by Ogden and OPI, (iii) met with the
managements of Ogden and OPI to discuss the business and prospects of Ogden and
OPI, (iv) considered certain financial and stock market data of Ogden and OPI
and compared such data with similar data for other publicly-held companies in
businesses similar to those of Ogden and OPI, (v) considered the terms of
certain other similar transactions which have recently been effected, and
(vi) considered such other information, financial studies, analyses and
investigations and financial, economic and market criteria which First Boston
deemed relevant.
In connection with its review, First Boston did not independently verify any
of the information provided to or otherwise reviewed by First Boston and relied
upon its being complete and accurate in all respects. With respect to financial
forecasts prepared by Ogden and OPI and other data reviewed, First Boston
assumed that such forecasts and other data were reasonably prepared on bases
reflecting the best currently available estimates and judgments of the
respective managements of Ogden and OPI as to the expected future financial
performance of Ogden and OPI. In addition, First Boston did not make an
independent evaluation or appraisal of the assets of Ogden and OPI, nor was
First Boston furnished with any such evaluations or appraisals. First Boston's
opinion is necessarily based on information available to it and financial stock
market and other conditions and circumstances as they existed and could be
evaluated on the date of its opinion. Although First Boston evaluated the
financial terms of the Merger, the specific consideration payable in the Merger
was determined by Ogden and the Special Committee through their negotiations. In
view of Ogden's ownership of approximately 84% of the
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outstanding shares of OPI Common Stock, First Boston was not requested to, and
did not, solicit offers to acquire OPI from third parties.
In preparing its opinion for the Special Committee, First Boston performed a
variety of financial and comparative analyses and considered a variety of
factors of which the material analyses and factors are described below. The
summary of such analyses does not purport to be a complete description of the
analyses underlying First Boston's opinion. The preparation of a fairness
opinion is a complex analytic process involving various determinations as to the
most appropriate and relevant methods of financial analyses and the application
of those methods to the particular circumstances and, therefore, such an opinion
is not readily susceptible to summary description. First Boston believes that
its analyses must be considered as a whole and that selecting portions of its
analyses or portions of the factors considered by it, without considering all
analyses and factors, could create an incomplete view of the evaluation process
underlying its opinion. In its analyses, First Boston made numerous assumptions
with respect to Ogden and OPI, industry performance, general business,
regulatory, economic, market and financial conditions and other matters, many of
which are beyond the control of Ogden and OPI. The estimates contained in such
analyses are not necessarily indicative of actual values or predictive of future
results or values, which may be significantly more or less favorable than those
suggested by such analyses. In addition, analyses relating to the value of
businesses or securities do not purport to be appraisals or to reflect the
prices at which businesses or securities actually may be sold. Accordingly,
because such estimates are inherently subject to substantial uncertainty, none
of Ogden, OPI, the Special Committee, First Boston or any other person assumes
responsibility for their accuracy.
The following is a summary of the material analyses performed by First
Boston in connection with its opinion dated September 27, 1994, which it
delivered to the Special Committee on that date. In connection with its opinion
dated the date hereof, First Boston reviewed and updated as necessary the
analyses performed in connection with its opinion dated September 27, 1994.
Relative Contribution Analysis. Using actual results and estimates of Ogden
and OPI management, First Boston analyzed the contribution attributable to the
interest in OPI held by the Unaffiliated OPI Stockholders to the revenues,
operating income, net income, total assets, and total equity of Ogden and
compared it to the interest in Ogden those stockholders would receive in the
Merger. This analysis indicated that during fiscal years 1993 and 1994, the
interest in OPI held by the Unaffiliated OPI Stockholders would contribute
approximately 5.6% and 5.1% of revenues, 10.1% and 8.8% of operating income, and
11.1% and 11.5% of net income, respectively, and as of December 31, 1993 and
June 30, 1994, 12.3% and 12.2% of total assets and 9.0% and 8.7% of total book
equity, respectively. By comparison, the Ogden Common Stock to be issued to the
Unaffiliated OPI Stockholders in the Merger would represent approximately 11% of
the total outstanding Ogden Common Stock immediately following the Merger.
Comparable Company Analysis. First Boston reviewed and compared certain
actual and estimated financial, operating and stock market information of OPI
with selected publicly traded environmental services companies, most notably
Wheelabrator Technologies, and of Ogden with selected conglomerates that have
service businesses. Environmental services companies, in addition to
Wheelabrator Technologies, included Browning-Ferris, WMX Technologies, Ionics
Inc. and U.S. Filter Corporation. However, Wheelabrator Technologies, with its
significant waste-to-energy operations, was the only publicly traded company
First Boston believed to have operations similar to OPI. Ogden was compared to
Dial Corporation and ITT. Each operates in a broad variety of businesses which
include service related businesses. First Boston compared market values as a
multiple of fiscal years 1994 and 1995 estimated net income, and adjusted market
values (market value, plus total debt less cash) as a multiple of 1994 and 1995
estimated operating cash flow and earnings before interest and taxes. This
analysis resulted in enterprise and equity valuation reference ranges for OPI of
approximately $1.98 billion to $2.39 billion and $580 million to $989 million,
respectively, or approximately $15.09 to $25.75 per share of OPI Common Stock
(based on 38.44 million shares outstanding, assuming all outstanding OPI stock
options are exercised). When applied to Ogden, this analysis resulted in
enterprise and equity
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valuation reference ranges for Ogden of approximately $2.55 billion to $2.98
billion and $727 million to $1.16 billion, respectively, or approximately $16.66
to $26.55 per share of Ogden Common Stock (based on 43.671 million shares
outstanding, assuming all outstanding OPI stock options are exercised). All
projected earnings multiples for the comparable companies were based on the
consensus net income estimates of selected investment banking firms. All
financial estimates for OPI and Ogden were based on certain operating and
financial assumptions, forecasts and other information provided by the
respective managements of Ogden and OPI. The foregoing analyses were based on
closing stock prices as of September 23, 1994.
Comparable Transactions Analysis. Using publicly available information,
First Boston analyzed the purchase prices and multiples paid in selected merger
or acquisition transactions in the environmental services industries.
Transactions analyzed included Rollins Environmental Services/Aptus Inc., USA
Waste Services/Envirofil Inc., Wessex Water PLC/Waste Management International
PLC/Waste Management Ltd. (NFC PLC), Republic Waste Industries Inc./Stout
Environmental Inc., Brambles USA/Environmental Systems Co., Severn Trent
PLC/Biffa Unit (BET PLC), Shanks & McEwan Group PLC/Rechem Environmental
Services PLC, Chemical Waste Management Inc./UNC Geotech Inc. and UNC
Remediation Inc. (UNC Inc.) and Waste Management Inc./Wheelabrator Technologies.
First Boston compared adjusted purchase prices (purchase price, plus total debt
less cash) as a multiple of the latest available 12 months operating cash flow
and earnings before interest and taxes. This analysis resulted in enterprise and
equity valuation ranges for OPI of approximately $2.13 billion to $2.71 billion
and $730 million to $1.31 billion, respectively, or approximately $19.00 to
$34.15 per share of OPI Common Stock (assuming all outstanding OPI stock options
are exercised).
Discounted Cash Flow Analysis. First Boston performed a discounted cash flow
analysis of the projected unleveraged free cash flow of OPI and Ogden for the
periods 1994 through 2014 and 1994 through 1998, respectively, based in part
upon certain operating and financial assumptions, including assumptions as to
Ogden's future dividend payment rate, forecasts and other information provided
by the respective managements of OPI and Ogden. The discount rates and terminal
year operating income multiples utilized for purposes of such analysis varied
depending upon the type of operations analyzed (i.e., whether such operations
were domestic waste-to-energy, waste water treatment, or entertainment
services). This analysis included estimating and analyzing varying levels of
success in new businesses for OPI such as international waste-to-energy, the
independent power industry and waste water treatment. This analysis resulted in
base case enterprise and equity valuation reference ranges for OPI of
approximately $2.06 billion to $2.11 billion and $657 million to $705 million,
respectively, or $17.08 to $18.34 per share of OPI Common Stock (assuming all
outstanding OPI stock options are exercised). This analysis resulted in upside
case enterprise and equity valuation reference ranges of approximately $2.12
billion to $2.18 billion and $723 million to $779 million, respectively, or
approximately $18.82 to $20.28 per share of OPI Common Stock (assuming all
outstanding OPI stock options are exercised). First Boston utilized "base case"
and "upside case" scenarios for OPI merely as points of reference for the
Special Committee and in no way intended to suggest parameters or forecast
predictions as to either minimum or maximum enterprise and equity valuation
ranges for OPI. For Ogden, this analysis resulted in enterprise and equity
valuation ranges for Ogden, net of the value of the interest in OPI owned by the
Unaffiliated OPI Stockholders, of approximately $2.77 billion to $2.83 billion
and $945 million to $1.01 billion, respectively, or approximately $21.65 to
$23.15 per share of Ogden Common Stock (assuming all outstanding Ogden stock
options are exercised).
Pro Forma Analysis. First Boston also analyzed certain pro forma effects
resulting from the Merger on the projected earnings per share ("EPS") of Ogden
for the period 1995 through 1998 based on certain assumptions and financial
forecasts of the respective managements of Ogden and OPI. First Boston assumed
that the Merger will be accounted for as a "purchase" under generally accepted
accounting principles and will be treated as a tax-free reorganization for
federal income tax purposes. This analysis indicated that the Merger would be
dilutive to the EPS of Ogden for 1995, approximately break-even to the EPS of
Ogden for the period 1996 and 1997, and accretive thereafter. The actual
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results achieved by the combined company may vary from projected results, and
the variations may be material.
Miscellaneous. Pursuant to the terms of First Boston's engagement, OPI has
agreed to pay First Boston for its services to the Special Committee in
connection with the Merger (i) an initial advisory fee of $200,000 plus (ii) an
additional advisory fee of $550,000, payable upon the rendering of a formal
written opinion with respect to the Merger. OPI also has agreed to reimburse
First Boston for its out-of-pocket expenses, including the reasonable fees and
expenses of legal counsel and other advisors up to a maximum amount of $25,000,
and to indemnify First Boston and certain related persons or entities against
certain liabilities, including liabilities under the federal securities laws,
relating to or arising out of its engagement.
In the ordinary course of its business, First Boston and its affiliates may
actively trade the debt and equity securities of Ogden and OPI for their own
account and for the accounts of customers and, accordingly, may at any time hold
a long or short position in such securities.
OGDEN'S REASONS FOR THE MERGER
Ogden beneficially owns approximately 84% of the outstanding shares of OPI
Common Stock. Ogden's purpose in consummating the Merger is to obtain beneficial
ownership of the shares of OPI Common Stock it does not already beneficially
own. Upon consummation of the Merger, Ogden will be entitled to all benefits and
will face all risks that result from ownership of all of the outstanding shares
of OPI Common Stock.
The Merger is intended to simplify the corporate structure under which Ogden
and OPI operate. Structural simplification will eliminate certain expenses
associated with OPI's current status as a publicly held corporation, including
expenses of preparing and distributing annual reports, proxy statements and
other documents and information required by the Exchange Act, expenses relating
to maintaining a registrar and transfer agent for the shares of OPI Common Stock
and certain legal, tax and accounting fees. Ogden believes that the Merger will
provide the Unaffiliated OPI Stockholders with the opportunity to retain a
significant indirect interest in OPI through the shares of Ogden Common Stock
they will receive in the Merger, while providing Ogden with a broader equity
base and a strengthened borrowing capacity.
Prior to making the Initial Offer, Ogden reviewed alternative forms of
consideration (including cash) and structures (including a tender offer) for the
potential acquisition of the shares of OPI Common Stock that it did not already
own. Ogden determined to propose a stock transaction for the reasons discussed
in the previous paragraph, and determined not to proceed with a tender offer for
a number of reasons, including the fact that there could be no assurance that
the Unaffiliated OPI Stockholders would tender all of their shares of OPI Common
Stock to Ogden, and that Ogden did not wish to acquire the shares of OPI Common
Stock it did not already own except on terms that the independent directors of
OPI, with the benefit of their own advisors, would determine to be fair to the
Unaffiliated OPI Stockholders.
As a result of the Merger, OPI, as the surviving corporation (the "Surviving
Corporation"), will be a privately held company. For Unaffiliated OPI
Stockholders, consummation of the Merger will result in a termination of their
rights as OPI stockholders (except that the holders of Dissenting Shares shall
have the rights provided in Section 262 of the DGCL). The Unaffiliated OPI
Stockholders will be able to participate in the future activities of OPI through
their ownership of shares of Ogden Common Stock, but will not face the risk of a
diminution of the value of OPI (or the benefit of an increase in its value)
after the Merger, except to the extent diminution (or increase) in the value of
OPI results in diminution (or increase) in the value of the shares of Ogden
Common Stock received in the Merger. At the same time, through receipt of shares
of Ogden Common Stock, Ogden believes that the Unaffiliated OPI Stockholders
will have the opportunity to participate in any potential future growth of a
company which has more diversified lines of business, and will also face the
risks of a diminution in value of Ogden Common Stock based on those more
diversified lines of business.
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CERTAIN CONSEQUENCES OF THE MERGER
Upon consummation of the Merger, shares of OPI Common Stock will cease to be
traded on the NYSE and application will be made to deregister such shares under
the Exchange Act. After the Merger, as a result of deregistration under the
Exchange Act, OPI will no longer be obligated to file periodic reports with the
Commission. In addition, the termination of registration of the shares of OPI
Common Stock under the Exchange Act will cause to be inapplicable certain other
provisions of the Exchange Act, including requirements that OPI's officers,
directors and 10% stockholders file certain reports concerning ownership of
OPI's securities and provisions that any profit by such officers, directors and
10% stockholders through purchases and sales of OPI's equity securities within
any six-month period may be recaptured by OPI.
As a result of the Merger, Unaffiliated OPI Stockholders (other than holders
of Dissenting Shares) will become stockholders of Ogden, and thereby will
continue to have an interest in OPI through Ogden. After consummation of the
Merger and (i) without giving effect to outstanding stock options of Ogden and
OPI and (ii) assuming there are no Dissenting Shares, and based on the Exchange
Ratio of 0.84, Ogden stockholders as of immediately prior to the Effective Time
will, in the aggregate, own approximately 89.5% of the Ogden Common Stock that
will be outstanding after the Merger and the current Unaffiliated OPI
Stockholders will, in the aggregate, own approximately 10.5% of the Ogden Common
Stock that will be outstanding after the Merger. Ogden will apply to have the
additional shares of Ogden Common Stock issued pursuant to the Merger listed on
the NYSE, and it is a condition to closing of the Merger that they be approved
for listing (subject to official notice of issuance).
A dividend to Ogden stockholders declared as of a record date prior to the
Effective Time will not accrue to the benefit of OPI stockholders. Accordingly,
OPI stockholders will not be entitled to receive the quarterly cash dividend of
$0.3125 per share to be paid on January 5, 1995, to holders of record of Ogden
Common Stock on December 14, 1994. No dividends or other distributions declared
or made on Ogden Common Stock paid to Ogden stockholders of record on dates
occurring after the Effective Time with a record date after the Effective Time
will be paid to holders of certificates representing OPI Common Stock until such
certificates are surrendered and certificates representing Ogden Common Stock
are issued in exchange therefor.
Both currently and immediately following the Merger, shares of Ogden Common
Stock vote and will vote together as a class on all matters, subject to certain
exceptions, with the outstanding shares of $1.875 Cumulative Convertible
Preferred Stock, par value $1.00 per share (the "Series A Preferred Stock") of
Ogden. As of the Record Date, there were 53,612 shares outstanding of the Series
A Preferred Stock. Each share of Ogden Common Stock is entitled to one vote per
share on such matters and each share of Series A Preferred Stock is entitled to
one-half vote per share on such matters. See "Description of Ogden Capital
Stock."
OPERATION AND MANAGEMENT OF OPI AFTER THE MERGER
Following consummation of the Merger, Ogden currently intends to continue to
operate the business of OPI substantially as it is currently conducted by OPI.
The Merger Agreement provides that the current officers of OPI will be the
officers of OPI immediately following the Merger. Ogden has formulated no plans
with respect to any changes in the officers of OPI, but may do so after the
Merger.
CONDUCT OF THE BUSINESS OF OGDEN AND OPI IF THE MERGER IS NOT CONSUMMATED
If the Merger is not consummated, it is expected that the business and
operations of Ogden and OPI will each continue to be conducted substantially as
they are currently being conducted and that OPI will continue to be controlled
by Ogden. In addition, in such event, Ogden may purchase additional shares of
OPI Common Stock from time to time, subject to availability at prices deemed
acceptable to Ogden, pursuant to a merger transaction, tender offer, open market
or privately negotiated transactions or otherwise on terms more or less
favorable to the Unaffiliated OPI Stockholders than the terms of the
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Merger. However, Ogden has made no determination as to any future transactions
if the Merger is not consummated.
CONFLICTS OF INTEREST
In considering the approval and recommendation by the OPI Board of Directors
of the Merger Agreement and the Appraisal Rights Amendment and the
recommendation of the Special Committee with respect to the Merger Agreement and
the transactions contemplated thereby, OPI stockholders should be aware that
certain members of OPI's management and Board of Directors have certain
interests in the Merger that are in addition to or different from the interests
of stockholders of OPI generally, and which may present such members with actual
or potential conflicts of interest.
Seven of the nine directors of OPI are officers or directors of Ogden. Mr.
R. Richard Ablon, Chairman of the Board and Chief Executive Officer of OPI, is a
director and President and Chief Executive Officer of Ogden; Mr. Constantine G.
Caras is a director of OPI and a director and Executive Vice President and Chief
Administrative Officer of Ogden; Mr. Philip G. Husby is a director of OPI and
Senior Vice President and Chief Financial Officer of Ogden; Mr. Lynde H. Coit is
a director of OPI and Senior Vice President and General Counsel of Ogden; Mr.
Robert E. Smith is a director of both OPI and Ogden; Mr. Scott G. Mackin is a
director and President and Chief Operating Officer of OPI and is considered an
executive officer of Ogden for purposes of Section 16(a) of the Exchange Act;
and Mr. Bruce W. Stone is a director and Executive Vice President and Managing
Director of OPI and an Assistant Secretary of Ogden. Such persons may be deemed
to have conflicts of interest by virtue of their positions with both Ogden and
OPI. The Special Committee, consisting of Mr. Batten and Mr. Friedman, neither
of whom is a director, officer or employee of Ogden or an officer of employee of
OPI, was constituted to review, negotiate and make recommendations to the OPI
Board of Directors with respect to Ogden's Initial Offer to acquire in a merger
the shares of OPI Common Stock owned by the Unaffiliated OPI Stockholders at an
exchange ratio of 0.78 shares of Ogden Common Stock for each share of OPI Common
Stock so that the proposed transaction would be reviewed, negotiated and
recommendations with respect thereto made by directors of OPI who were neither
directors, officers or employees of Ogden nor officers or employees of OPI. Mr.
Friedman was a member of the special committee of independent directors of ERC
International ("ERC") that reviewed the merger transaction pursuant to which
Ogden acquired ERC. Mr. Friedman resigned as a director of ERC upon Ogden's
acquisition of ERC.
In addition, as of the Record Date, directors of OPI (including the members
of the Special Committee) in the aggregate beneficially owned a total of 225,014
shares of OPI Common Stock (which number includes vested and currently
exercisable options to purchase 215,000 shares of OPI Common Stock) and a total
of 1,235,381 shares of Ogden Common Stock (which number includes vested and
currently exercisable options to purchase 896,854 shares of Ogden Common Stock).
See "The Merger Agreement--Treatment of OPI Stock Options" for a description of
the treatment of OPI stock options in the Merger.
Prior to considering the Initial Offer, the Special Committee requested and
obtained from OPI separate indemnification agreements for each of its members
(the "Indemnification Agreements"), which, among other things, restated such
directors' entitlement to indemnification under OPI's Bylaws and specified or
clarified the procedures and presumptions which would apply to claims thereunder
in connection with the Initial Offer or any revision thereof, and obligated OPI
to maintain for a period of not less than three years, subject to certain
limitations, the directors' and officers' liability insurance policies currently
maintained by OPI. The form of the Indemnification Agreements is attached as an
exhibit to the Registration Statement and the foregoing summary is qualified in
its entirety by reference thereto.
Pursuant to the Merger Agreement, Ogden is obliged to maintain in effect for
a period following the Effective Time the indemnification arrangements in favor
of the directors and officers of OPI that
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currently exist in the OPI Certificate or the Bylaws of OPI. See "The Merger
Agreement--Indemnification." In addition, the Merger Agreement provides that the
directors of Acquisition Sub immediately prior to the consummation of the Merger
shall be the initial directors of the Surviving Corporation and that the
officers of OPI immediately prior to the consummation of the Merger shall be the
initial officers of the Surviving Corporation. See "The Merger
Agreement--Certificate of Incorporation, Bylaws and Directors."
The Board of Directors of OPI and the Special Committee were aware of the
relationships and interests described above and considered them, along with
other matters, in approving the Merger Agreement and the transactions
contemplated thereby.
ACCOUNTING TREATMENT
The Merger will be accounted for as a "purchase" under generally accepted
accounting principles. Accordingly, the minority interest of the Unaffiliated
OPI Stockholders in the net assets and income of OPI will no longer be
recognized after the effective date of the Merger.
CERTAIN FEDERAL INCOME TAX CONSEQUENCES
It is a condition to the consummation of the Merger that OPI shall have
received an opinion from Cleary, Gottlieb, Steen & Hamilton, special counsel to
Ogden, that the Merger will constitute a reorganization within the meaning of
Section 368 of the Internal Revenue Code of 1986, as amended (the "Code") and
accordingly, (i) no gain or loss will be recognized by OPI stockholders upon the
conversion of their shares of OPI Common Stock into shares of Ogden Common Stock
pursuant to the terms of the Merger (except to the extent cash is received in
lieu of fractional shares); (ii) the tax basis of the shares of Ogden Common
Stock received by OPI stockholders upon the conversion of OPI Common Stock
pursuant to the Merger will be the same as the basis of the shares of OPI Common
Stock converted (less any portion of such basis allocable to any fractional
interest in any share of Ogden Common Stock); (iii) the holding period of the
Ogden Common Stock into which shares of OPI Common Stock are converted will
include the period that such shares of OPI Common Stock were held by the holder,
provided such shares were held as a capital asset by such holder at the
Effective Time; (iv) the payment of cash to a holder of OPI Common Stock in lieu
of a fractional share of Ogden Common Stock will be treated for federal income
tax purposes as if the fractional share was distributed as part of the Merger
and then was redeemed by Ogden with the result that gain or loss will be
realized and recognized by such holder equal to the difference between the cash
received and the basis of the fractional share interest; and (v) gain or loss
recognized by a holder of OPI Common Stock upon receipt of cash in exchange for
the holder's fractional share interest, or in exchange for the holder's OPI
Common Stock upon exercise of appraisal rights, exclusive of interest, will be
capital gain or loss, provided the shares of OPI Common Stock were held as
capital assets on the date of the Merger.
Based upon the advice of their respective counsel, Ogden and OPI believe
that no gain or loss will be recognized by Ogden, OPI or Acquisition Sub as a
result of the Merger.
ALTHOUGH THE FOREGOING DISCUSSION DESCRIBES MATERIAL U.S. FEDERAL INCOME TAX
CONSEQUENCES OF THE MERGER, IT DOES NOT PURPORT TO BE A COMPLETE ANALYSIS OR
LISTING OF ALL POTENTIAL TAX EFFECTS OF THE MERGER OR THE TAX CONSEQUENCES TO A
PARTICULAR HOLDER SUBJECT TO SPECIAL TREATMENT, SUCH AS FOREIGN PERSONS, AND
DOES NOT ADDRESS ANY CONSEQUENCES ARISING UNDER THE LAWS OF ANY STATE, LOCALITY
OR FOREIGN JURISDICTION. HOLDERS ARE URGED TO CONSULT THEIR OWN TAX ADVISORS
CONCERNING THE FEDERAL, STATE, LOCAL AND FOREIGN TAX CONSEQUENCES OF THE MERGER
TO THEM.
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REGULATORY APPROVALS
To Ogden's and OPI's knowledge, there are no federal regulatory requirements
the compliance with which is required in order to consummate the Merger, other
than those required pursuant to federal and state securities laws and by the
rules and regulations of the NYSE.
Pursuant to the Merger Agreement, Ogden has agreed to use all reasonable
efforts to have the Registration Statement declared effective by the Commission
as soon as practicable and to use its best efforts to take any action required
to be taken under state blue sky or securities laws in connection with the
issuance of shares of Ogden Common Stock pursuant to the Merger. Ogden has also
agreed to use its best efforts to have approved for listing on the NYSE, subject
to official notice of issuance, the shares of Ogden Common Stock to be issued
pursuant to the Merger, and such listing is a condition to consummation of the
Merger. See "The Merger Agreement--Certain Other Agreements."
LITIGATION RELATING TO THE MERGER
On June 6, 1994, Ogden and OPI announced the terms of the Initial Offer and
the formation of the Special Committee. Shortly after such announcement, the
Class Action Lawsuits were filed by the Class Action Plaintiffs against, among
others, Ogden, OPI and the Individual Defendants alleging, among other things,
that the consideration to be paid to the stockholders of OPI was grossly unfair,
inadequate, and substantially below the fair value of OPI Common Stock.
The Class Action Lawsuits sought to enjoin the transaction contemplated by
the Initial Offer or, if consummated, to rescind the transaction, and requested
an award for money damages, attorneys' fees and costs. The Class Action Lawsuits
consist of nine lawsuits filed in the Delaware Chancery Court in and for New
Castle County. In connection with the execution of the Merger Agreement, an
agreement in principle concerning the Merger and settlement of the Class Action
Lawsuits between the Class Action Plaintiffs and the defendants was reached and
the Memorandum of Understanding was executed. The Memorandum of Understanding
provides that, subject to a number of conditions, including confirmatory
discovery, the parties to the Class Action Lawsuits will enter into a
stipulation of settlement which will be subject, among other conditions, to
consummation of the Merger and court approval. If the conditions are met, the
Class Action Lawsuits will be dismissed, and the judgment will provide for a
complete discharge, settlement and release of, and an injunction barring, all
claims, rights, causes of action, suits, matters and issues, whether known or
unknown, that have been, could have been, or in the future might be, asserted in
the Class Action Lawsuits or in any proceeding by or on behalf of the Class
Action Plaintiffs in connection with the Merger. The defendants deny that any of
them have committed or have threatened to commit any violations of law or
breaches of duty to the Class Action Plaintiffs and, as the Memorandum of
Understanding states, are entering into such Memorandum of Understanding, among
other reasons, to eliminate the burden and expense of further litigation. The
Memorandum of Understanding is attached as an exhibit to the Registration
Statement and the foregoing summary is qualified in its entirety by reference
thereto.
FEDERAL SECURITIES LAW CONSEQUENCES
All shares of Ogden Common Stock issued in connection with the Merger will
be freely transferable, except that any shares of Ogden Common Stock received by
persons who are deemed to be "affiliates" (as such term is defined under the
Securities Act) of OPI prior to the Merger may be resold by them only in
transactions permitted by the resale provisions of Rule 145 promulgated under
the Securities Act (or Rule 144 if such persons are or become affiliates of
Ogden) or otherwise permitted under the Securities Act. Persons who may be
deemed to be affiliates of OPI or Ogden generally include individuals or
entities that control, are controlled by, or are under common control with, such
party and may include certain officers and directors of such party as well as
principal stockholders of such party.
The Merger Agreement provides that OPI will use its best efforts to obtain a
written agreement from each of its "affiliates" to the effect that he or she
will not offer to sell, sell or otherwise dispose of
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any shares of Ogden Common Stock issued to him or her pursuant to the Merger,
except pursuant to an effective registration statement or in compliance with
Rule 145 or another exemption from the registration requirements of the
Securities Act. Receiving such letters from "affiliates" of OPI is a condition
to Ogden's obligation to consummate the Merger.
APPRAISAL RIGHTS
The Board of Directors of OPI has approved the Appraisal Rights Amendment to
the OPI Certificate in order to provide appraisal rights, pursuant to Section
262 of the DGCL, to holders of OPI Common Stock who do not vote in favor of the
Merger (or certain similar transactions) and elect to demand appraisal in
accordance with said Section 262. See "The Appraisal Rights Amendment."
Effectiveness of the Appraisal Rights Amendment is contingent upon its approval
by the holders of a majority of the outstanding shares of OPI Common Stock and
the filing of the Appraisal Rights Amendment with the Office of the Secretary of
State of the State of Delaware in accordance with the DGCL. Under the Merger
Agreement, effectiveness of the Appraisal Rights Amendment is a condition to the
consummation of the Merger. Accordingly, holders of record of OPI Common Stock
who follow the procedures specified in Section 262 will be entitled to have
their shares of OPI Common Stock appraised by the Delaware Court of Chancery
(the "Court") and to receive payment of the "fair value" of such shares,
exclusive of any element of value arising from the accomplishment or
expectations of the Merger, as determined by the Court. The procedures set forth
in Section 262 should be complied with strictly. Failure by any OPI stockholder
to follow any of such procedures may result in a termination or waiver of such
stockholder's appraisal rights under Section 262.
Any OPI stockholder who wishes to exercise appraisal rights must demand from
OPI the appraisal of any or all of his or her shares of OPI Common Stock by
delivering a written demand for an appraisal to Jeffrey R. Horowitz, Secretary,
Ogden Projects, Inc., 40 Lane Road, Fairfield, New Jersey 07007 or to OPI at the
Special Meeting, but in either case prior to the vote with respect to the Merger
Agreement at the Special Meeting. Failure to deliver such written demand prior
to the vote with respect to the Merger Agreement at the Special Meeting will
constitute a waiver of such stockholder's appraisal rights. A demand will be
sufficient if it reasonably informs OPI of the identity of the stockholder and
that the stockholder intends by such notice to demand the appraisal of his or
her shares. Demand is necessary if the stockholder is to perfect his or her
appraisal rights. Section 262 also provides that appraisal rights will be
available only to stockholders who have not voted in favor of the Merger. An OPI
stockholder's failure to vote against adoption of the Merger Agreement will not
constitute a waiver of his or her appraisal rights. However, a vote for adoption
of the Merger Agreement or the return of an unmarked executed proxy card will
constitute a waiver of such rights. See "The Special Meeting-- Voting Rights and
Proxies." A proxy against adoption of the Merger Agreement or a vote against
adoption of the Merger Agreement, without a separate demand for appraisal, will
not be deemed to satisfy the notice requirements under Delaware law.
The written demand for appraisal must be made by or for the holder of record
of OPI Common Stock registered in his or her name. Accordingly, such demand
should be executed by or for such stockholder of record, fully and correctly, as
such stockholder's name appears on his or her stock certificates. If the
applicable shares of OPI Common Stock are owned of record in a fiduciary
capacity, such as by a trustee, guardian or custodian, execution of the demand
should be made in such capacity, and if the applicable shares of OPI Common
Stock are owned of record by more than one person, as in a joint tenancy or
tenancy in common, such demand should be executed by or for all joint owners. An
authorized agent, including one of two or more joint owners, may execute the
demand for appraisal for a stockholder of record. However, the agent must
identify the record owner(s) and expressly disclose the fact that, in executing
the demand, he or she is acting as agent for the record owner(s). A stockholder
who holds shares of OPI Common Stock in a brokerage account or through other
nominee form (including through a central securities depository nominee such as
Cede & Co.) and wishes to demand appraisal is urged to consult promptly with his
or her broker to determine the appropriate procedures
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for such nominee (as the record holder) to make a demand for appraisal with
respect to such shares on behalf of such stockholder.
A record owner may exercise appraisal rights with respect to all or less
than all of the shares held of record. If the record owner desires to exercise
appraisal rights as to a portion of his or her shares, the written demand should
set forth the number of shares covered by it. Where no number of shares is
expressly mentioned, the demand will be presumed to cover all shares of OPI
Common Stock outstanding in the name of such record owner.
Within 120 days after the Effective Time, OPI (as the Surviving Corporation)
or any stockholder of OPI who has complied with the demand requirements and who
is otherwise entitled to appraisal rights, may file a petition in the Court
demanding a determination of the value of the OPI Common Stock of all former
stockholders of OPI who have complied with the demand requirements and who are
otherwise entitled to appraisal rights. Notwithstanding the foregoing, at any
time within 60 days after the Effective Time, any stockholder has the right to
withdraw his or her demand for appraisal and to accept the terms offered in the
Merger. If no such petition is filed, appraisal rights will be lost for all
stockholders who had previously demanded appraisal of their OPI Common Stock.
Holders of OPI Common Stock seeking to exercise appraisal rights should not
assume that OPI will file a petition with respect to the appraisal of the value
of their OPI Common Stock or that OPI will initiate any negotiations with
respect to the "fair value" of such OPI Common Stock. OPI has no current
intention to file such a petition. Accordingly, such stockholders should regard
it as their obligation to take all steps necessary to perfect their appraisal
rights in the manner prescribed in Section 262.
Within 120 days after the Effective Time, any stockholder who is entitled to
and has perfected his or her appraisal rights will be entitled to receive upon
written request from OPI a statement setting forth the aggregate number of
shares with respect to which demands for appraisal have been received and the
aggregate number of holders of such shares. This written statement must be
mailed to the requesting stockholder within 10 days after his or her written
request for such a statement is received by OPI as the Surviving Corporation, or
within 10 days after the expiration of the period for delivery of demands for
appraisals, whichever is later.
Upon the filing of a petition by a stockholder, service of a copy of such
petition must be made upon OPI as the Surviving Corporation. Within 20 days
after such service, OPI must file in the Office of the Register in Chancery in
which the petition was filed a duly verified list containing the names and
addresses of all stockholders who have demanded payment for their shares and
with whom agreements as to the value of their shares have not been reached by
OPI. If the petition is originally filed by OPI, such petition must be
accompanied by such duly verified list. After the filing of a petition for
appraisal, the Register in Chancery, if ordered by the Court, must give notice
of the time and place fixed for hearing by registered or certified mail to both
OPI and to the stockholders shown on the list at the addresses therein stated.
This notice must also be given by one or more publications at least one week
before the day of the hearing in a newspaper of general circulation published in
the City of Wilmington, Delaware or such publication as the Court deems
advisable. The forms of the notices by mail and by publication must be approved
by the Court, and the costs thereof will be borne by OPI.
At the hearing on the petition, the Court will determine the stockholders
who have complied with Section 262 and who have thus become entitled to
appraisal rights. The Court may require the stockholders who have demanded an
appraisal for their shares to submit to the Register in Chancery their
certificates that formerly represented OPI Common Stock for notation thereon of
the pendency of the appraisal proceedings. If any stockholder fails to comply
with such direction, the Court may dismiss the proceedings as to such
stockholder.
If a petition for an appraisal is timely filed, after a hearing on such
petition the Court will determine the stockholders entitled to appraisal rights
and will appraise the value of the OPI Common Stock owned by such stockholders,
determining the "fair value" thereof exclusive of any element of value arising
from the accomplishment or expectation of the Merger. The Court will direct
payment of
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the fair value of such shares of OPI Common Stock with a fair rate of interest,
if any, on such fair value to stockholders entitled thereto upon surrender to
OPI of the stock certificates representing such shares. Upon application of a
stockholder, the Court may, in its discretion, order that all or a portion of
the expenses incurred by any stockholder in connection with an appraisal
proceeding, including without limitation reasonable attorneys' fees and the fees
and expenses of experts, be charged pro rata against the value of all the shares
of OPI Common Stock entitled to appraisal. Any stockholder whose name appears on
the list filed by OPI as aforesaid and who has submitted his certificates for
shares of OPI Common Stock to the Register in Chancery, if such is required, may
participate fully in all proceedings until it is finally determined that he or
she is not entitled to appraisal rights under Section 262.
No representation is made as to the outcome of the appraisal of fair value
as determined by the Court, and stockholders should recognize that such an
appraisal could result in a determination of a value higher or lower than, or
the same as, the value of the shares of Ogden Common Stock issued in the Merger.
Moreover, OPI reserves the right to assert, in any appraisal proceeding, that,
for purposes of Section 262, the "fair value" of a share of OPI Common Stock is
less than the value of the 0.84 of a share of Ogden Common Stock to be issued in
respect thereof in the Merger. In determining the "fair value" of such shares of
OPI Common Stock, the Court is required to take into account all relevant
factors. Therefore, such determination could be based upon a number of
considerations, including the market value of shares of OPI Common Stock and the
asset value and earning capacity of OPI. The Delaware Supreme Court has stated,
among other things, that "proof of value by any techniques or methods which are
generally considered acceptable in the financial community and otherwise
admissible in court," should be considered in an appraisal proceeding. Section
262 provides that "fair value" is to be "exclusive of any element of value
arising from the accomplishment or expectation of the merger." The Delaware
Supreme Court has also stated that "elements of future value, including the
nature of the enterprise, which are known or susceptible of proof as of the date
of the merger and not the product of speculation, may be considered." Under
Delaware law, depending on the circumstances, appraisal may or may not be a
dissenting stockholder's exclusive remedy.
From and after the Effective Time, no stockholder who has demanded his or
her appraisal rights will be entitled to vote the Ogden Common Stock to which
the stockholder would have been entitled had he or she chosen not to exercise
appraisal rights, nor will he or she be entitled to payments of dividends or
other distributions on the stock (except dividends or other distributions
payable to OPI stockholders of record on a date that is prior to the Effective
Time); provided, however, that if no petition for an appraisal has been filed
within the time provided by Delaware law, or if such stockholder delivers to OPI
a written withdrawal of his or her demand for an appraisal and an acceptance of
the Merger, either within 60 days after the Effective Time or thereafter with
written approval of OPI (which OPI reserves the right to give or withhold in its
discretion), then the right of such stockholder to an appraisal will cease, and
(upon surrender of certificates formerly representing OPI Common Stock together
with a properly completed Letter of Transmittal) such stockholder will receive
the shares of Ogden Common Stock into which such shares of OPI Common Stock were
converted in the Merger. Notwithstanding the foregoing, no appraisal proceeding
in the Court of Chancery will be dismissed as to any stockholder without the
approval of the Court, and such approval may be conditioned upon whatever terms
the Court deems just.
The foregoing discussion of the provisions of Section 262 of the DGCL is not
intended to be a complete statement of such provisions and is qualified in its
entirety by reference to the text of Section 262, which is reproduced in full as
Exhibit C hereto.
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THE MERGER AGREEMENT
Set forth below is a brief description of certain terms of the Merger
Agreement. This description does not purport to be complete and is qualified in
its entirety by reference to the Merger Agreement, which is attached as Exhibit
A and is incorporated herein by reference.
TERMS OF THE MERGER
The Merger Agreement provides that, following the approval and adoption of
the Merger Agreement by the stockholders of OPI and the satisfaction or waiver
of the other conditions to the Merger, Acquisition Sub will be merged with and
into OPI, which shall be the Surviving Corporation and a wholly owned subsidiary
of Ogden.
EFFECTIVE TIME OF THE MERGER
The Effective Time of the Merger will occur upon the filing of a
Certificate of Merger with the Office of the Secretary of State of the State of
Delaware in accordance with the DGCL. The Certificate of Merger will be filed
contemporaneously with the closing of the transactions contemplated by the
Merger Agreement, which closing is anticipated to occur as soon as practicable
after approval and adoption of the Merger by OPI stockholders and the
satisfaction or waiver of the other conditions precedent to consummation of the
Merger. See "--Conditions to the Merger." The stock transfer books relating to
OPI Common Stock will be closed as of the close of business on the date of the
Effective Time and, thereafter, no transfers of record of certificates
theretofore representing shares of OPI Common Stock will be made. The Merger
Agreement may be terminated by either OPI or Ogden if, among other reasons, the
Merger has not been consummated on or before March 1, 1995. See "--Conditions to
the Merger."
CONVERSION OF OPI COMMON STOCK
At the Effective Time, pursuant to the Merger Agreement:
(i) All shares of OPI Common Stock which are held in the treasury by OPI
or by any subsidiary of OPI, and any shares of OPI Common Stock owned of
record by Ogden, Acquisition Sub, or any other subsidiary of Ogden, shall be
cancelled (the "Cancelled Shares").
(ii) Each then issued and outstanding share of OPI Common Stock (other
than the Cancelled Shares and the Dissenting Shares) shall be converted
solely into the right to receive, upon the surrender of the certificate
formerly representing such share of OPI Common Stock (a) 0.84 of a share of
Ogden Common Stock and (b) for each whole share of Ogden Common Stock into
which the shares of OPI Common Stock are so convertible pursuant to clause
(a), a Right.
(iii) No fractional shares of Ogden Common Stock shall be issued upon
the surrender for exchange of certificates representing OPI Common Stock. In
lieu of any such fractional shares, each holder of OPI Common Stock who
would otherwise have been entitled to a fraction of a share of Ogden Common
Stock upon surrender of certificates for exchange shall be paid an amount in
cash (without interest) upon such surrender equal to such fraction
multiplied by the closing sale price of Ogden Common Stock as reported in
the consolidated transaction reporting system of the NYSE on the date of the
Effective Time.
(iv) Each then issued and outstanding share of common stock of
Acquisition Sub shall be converted into one share of common stock of the
Surviving Corporation.
(v) Holders of Dissenting Shares, if any, shall be entitled to payment
by the Surviving Corporation of the appraised value of such shares to the
extent permitted by and in accordance with the provisions of the Appraisal
Rights Amendment and Section 262 of the DGCL. See "The Merger--Appraisal
Rights" and "The Appraisal Rights Amendment."
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Based on the number of shares of OPI Common Stock (other than shares of OPI
Common Stock held by Ogden or OPI) outstanding on the Record Date, assuming (i)
the exercise of all outstanding OPI stock options and (ii) that there are no
Dissenting Shares, and based on the Exchange Ratio of 0.84, a maximum of
5,409,860 shares of Ogden Common Stock will be issued in connection with the
Merger.
EXCHANGE OF OPI STOCK CERTIFICATES
As soon as practicable after the Effective Time, the Exchange Agent shall
mail and make available to each record holder of a certificate representing OPI
Common Stock a notice and a letter of transmittal ("Letter of Transmittal")
advising such holder of the effectiveness of the Merger and the procedure for
surrendering to the Exchange Agent such holder's certificate(s). Upon the
surrender to the Exchange Agent of such certificate(s) representing OPI Common
Stock, together with such Letter of Transmittal duly executed, and any other
required documents, the holder of such certificate(s) will be entitled to
receive in exchange therefore a certificate representing the appropriate number
of shares of Ogden Common Stock (which certificate also will represent the
appropriate number of Rights), and a check payable to such holder representing
the payment of cash in lieu of fractional shares of Ogden Common Stock, if any,
to which such holder is entitled. Certificates representing OPI Common Stock so
surrendered shall forthwith be cancelled.
OPI STOCKHOLDERS SHOULD NOT FORWARD THEIR CERTIFICATES TO THE EXCHANGE AGENT
UNTIL THEY HAVE RECEIVED A LETTER OF TRANSMITTAL AND INSTRUCTIONS.
After the Effective Time, each certificate evidencing shares of OPI Common
Stock (other than shares of OPI Common Stock held of record in the name of
Ogden, Acquisition Sub, or any other subsidiary of Ogden), until so surrendered
and exchanged, will be deemed, for all purposes, to evidence only the right to
receive the number of shares of Ogden Common Stock (and Rights) which the holder
of such certificate is entitled to receive pursuant to the terms of the Merger
Agreement and the right to receive any cash payment in lieu of a fractional
share of Ogden Common Stock.
TREATMENT OF OPI STOCK OPTIONS
At the Effective Time, each outstanding option to purchase shares of OPI
Common Stock granted pursuant to OPI's 1989 Employees' Stock Option Plan (the
"Options"), and the obligation (described below) to issue shares of Ogden Common
Stock upon the exercise thereof, will be assumed by Ogden. Each Option, whether
or not exercisable, shall be converted into an option to acquire shares of Ogden
Common Stock (an "Ogden Stock Option") and such Rights as are issuable pursuant
to the shares of OPI Common Stock subject to each such Option. The shares
subject to the Ogden Stock Option shall be a number of shares of Ogden Common
Stock determined by multiplying the number of shares of OPI Common Stock covered
by such Option by 0.84, and the exercise price per share for the Ogden Stock
Option shall be determined by dividing the exercise price per share of such
Option by 0.84. Fractional shares shall not be issued upon the exercise of Ogden
Stock Options. Each Ogden Stock Option shall otherwise be exercisable upon the
same terms and conditions as set forth in the option agreement respecting the
Option converted into such Ogden Stock Option. As promptly as practicable after
the Effective Time, Ogden has agreed in the Merger Agreement to prepare and file
with the Commission, and cause to become effective under the Securities Act, a
Registration Statement on Form S-8 with respect to any shares of Ogden Common
Stock issuable on exercise of Ogden Stock Options issued in respect of Options.
REPRESENTATIONS AND WARRANTIES
The Merger Agreement contains various customary representations and
warranties relating to, among other things: (i) each of Ogden and OPI's
organization and similar corporate matters and the
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organization and similar corporate matters regarding subsidiaries of OPI; (ii)
each of Ogden and OPI's capital structure; (iii) authorization, execution,
delivery, performance and enforceability of the Merger Agreement and related
matters; (iv) conflicts under certificates of incorporation or bylaws, required
consents or approvals and violations of any instruments or law; (v) documents
filed by each of Ogden and OPI with the Commission and the accuracy of the
information contained therein; (vi) absence of certain specified material
changes or events, brokers or finders, undisclosed liabilities and material
litigation; (vii) compliance with applicable law and, in the case of OPI,
employee benefit plans; (viii) the accuracy of information supplied by each of
Ogden and OPI in connection with the Registration Statement and this Proxy
Statement; (ix) in the case of OPI, receipt by the Special Committee of a
fairness opinion of First Boston with respect to the Exchange Ratio; (x) the
absence of any action which would to the parties' knowledge jeopardize the
qualifications of the Merger as a reorganization within the meaning of Section
368(a) of the Code; and (xi) in the case of Ogden, absence of a violation of the
Rights Agreement pursuant to which the Rights are issued.
CERTIFICATE OF INCORPORATION, BYLAWS AND DIRECTORS
The Merger Agreement provides that: (i) the Certificate of Incorporation and
the Bylaws of Acquisition Sub as in effect immediately prior to the Effective
Time will be the Certificate of Incorporation and the Bylaws of the Surviving
Corporation, except that the Certificate of Incorporation of Acquisition Sub
shall be amended to provide that the name of the Surviving Corporation shall be
"Ogden Projects, Inc."; (ii) the directors of Acquisition Sub immediately prior
to the consummation of the Merger will be the initial directors of the Surviving
Corporation; and (iii) the officers of OPI immediately prior to the consummation
of the Merger will be the initial officers of the Surviving Corporation.
CONDUCT OF BUSINESS PENDING THE MERGER
Prior to the Effective Time, OPI has agreed that, without Ogden's consent
(or except as contemplated by the Merger Agreement), the respective businesses
of OPI and its subsidiaries shall be conducted only in the ordinary and usual
course, consistent with past practices. In addition, each of Ogden and OPI have
agreed to refrain from taking certain actions prior to the Effective Time
without the other's consent. In the case of OPI, these negative covenants relate
to, among other things, not changing OPI's capital structure, not issuing
additional shares of OPI capital stock, not entering into certain
out-of-the-ordinary-course transactions, and not changing certain employee
benefit plans and practices. In the case of Ogden, these negative covenants
relate to, among other things, not changing Ogden's capital structure with
respect to Ogden Common Stock, and not issuing additional shares of Ogden Common
Stock (or options or rights related thereto) other than under certain
circumstances or for the receipt of certain consideration. Each of Ogden and OPI
also have agreed to refrain from knowingly taking any action prior to the
Effective Time that would jeopardize the qualifications of the Merger as a
reorganization within the meaning of Section 368(a) of the Code. Acquisition Sub
has also agreed not to engage in any activities prior to the Effective Time,
other than as provided in or contemplated by the Merger Agreement.
INDEMNIFICATION
Pursuant to the Merger Agreement, Ogden has agreed that all rights to
indemnification, advancement of litigation expenses and limitation of personal
liability existing in favor of the directors and officers of OPI under the
provisions existing on the date of the Merger Agreement in OPI's Certificate or
Bylaws shall, with respect to any matter existing or occurring at or prior to
the Effective Time (including the transactions contemplated by the Merger
Agreement), survive the Effective Time, and that, as of the Effective Time,
Ogden shall assume all obligations of OPI in respect thereof as to any claim or
claims asserted prior to or within a six-year period immediately after the
Effective Time.
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CONDITIONS TO THE MERGER
The respective obligations of OPI and Ogden (including Acquisition Sub) to
effect the Merger are subject to the satisfaction of certain conditions,
including: (i) the Registration Statement, of which this Proxy Statement forms a
part, having become effective under the Securities Act and not being subject to
any stop order; (ii) approval and adoption of the Merger Agreement and approval
of the Appraisal Rights Amendment, each by the requisite vote of the holders of
OPI Common Stock, and the Appraisal Rights Amendment having become effective;
(iii) the shares of Ogden Common Stock issuable in the Merger having been
approved for listing on the NYSE (subject to official notice of issuance); (iv)
no preliminary or permanent injunction or other order by any federal or state
court in the United States which prohibits the consummation of the Merger having
been issued and remaining in effect; (v) the performance by Ogden and
Acquisition Sub, on the one hand, and OPI, on the other hand, in all material
respects of their respective obligations under the Merger Agreement, and the
correctness in all material respects of their respective representations and
warranties contained therein; (vi) receipt by Ogden and OPI of certain legal
opinions and certificates; (vii) receipt by Ogden of certain letters from
affiliates of OPI acknowledging the restrictions upon them under the Securities
Act concerning the resale or disposition of Ogden Common Stock to be received by
them in the Merger; (viii) receipt by Ogden of all state securities or blue sky
permits and other authorizations necessary to issue shares of Ogden Common Stock
pursuant to the Merger; and (ix) in the case of Ogden's obligation to close,
neither OPI's Board of Directors nor the Special Committee having withdrawn or
modified its recommendation with respect to approval and adoption of the Merger
Agreement and the transactions contemplated by it.
TERMINATION
The Merger Agreement may be terminated at any time prior to the Effective
Time, whether before or after approval by the stockholders of OPI: (i) by mutual
consent of the Board of Directors of Ogden and the Board of Directors of OPI;
(ii) by either Ogden or OPI, if the Merger shall not have been consummated on or
before March 1, 1995, provided, however, that the party seeking to terminate is
not otherwise in material breach of its obligations under the Merger Agreement;
(iii) by OPI, if either Ogden or Acquisition Sub shall have failed to comply in
any material respect with any of their respective material covenants or
agreements contained in the Merger Agreement, provided, however, that if such
failure is curable, notice of such failure shall have been given by OPI to
Ogden, and Ogden shall not have cured (or caused Acquisition Sub to cure) such
failure within 30 days of notice thereof; (iv) by Ogden, if OPI shall have
failed to comply in any material respect with any of its material covenants or
agreements contained in the Merger Agreement, provided, however, that if such
failure is curable, notice of such failure shall have been given by Ogden to
OPI, and OPI shall not have cured such failure within 30 days of notice thereof;
and (v) by the Special Committee, at any time prior to the closing of the
Merger, if First Boston has withdrawn its fairness opinion.
In the event of termination of the Merger Agreement by either Ogden, OPI or
the Special Committee, as provided above, the Merger Agreement shall forthwith
become void and, except in the case of a termination resulting from a willful
breach of the Merger Agreement by any party thereto, there shall be no liability
on the part of either OPI, Ogden or Acquisition Sub or their respective officers
or directors; provided, however, that the provisions of the Merger Agreement
regarding confidentiality and fees and expenses shall survive any termination of
the Merger Agreement.
AMENDMENT AND WAIVER
The Merger Agreement may be amended by the parties thereto, by or pursuant
to action taken by their respective Boards of Directors, at any time before or
after approval thereof by the stockholders of OPI, but, after any such approval,
no amendment shall be made which changes the Exchange Ratio or which in any way
materially adversely affects the rights of such stockholders, without the
further approval of such stockholders. The Merger Agreement may not be amended
except by an instrument in
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writing specifically referring to the provision regarding amendment and signed
on behalf of each of the parties thereto.
At any time prior to the Effective Time, Ogden and Acquisition Sub, on the
one hand, and OPI, on the other hand, may (i) extend the time for the
performance of any of the obligations or other acts of the other, (ii) waive any
inaccuracies in the representations and warranties of the other contained in the
Merger Agreement or in any documents delivered pursuant thereto and (iii) waive
compliance by the other with any of the agreements or conditions contained
therein which may legally be waived. Any agreement on the part of a party
thereto to any such extension or waiver shall be valid only if set forth in an
instrument in writing specifically referring to the provision regarding waiver
and signed on behalf of such party.
Prior to the Effective Time, any amendment, waiver or other action of OPI or
its Board of Directors required or permitted by the Merger Agreement requires
the approval or authorization of the Special Committee.
EXPENSES
Except for payments which become due and payable to holders of Dissenting
Shares who exercise appraisal rights, which payments shall be made by the
Surviving Corporation out of its own funds, if the Merger is consummated, all
costs and expenses incurred in connection with the Merger Agreement and the
transactions contemplated thereby will be paid by Ogden. If the Merger is not
consummated, all costs and expenses incurred in connection with the Merger
Agreement and the transactions contemplated therein shall be paid by the party
incurring such expenses, except that the aggregate expenses incurred in
connection with printing the Registration Statement and this Proxy Statement and
filing the Registration Statement and this Proxy Statement with the Commission
shall be shared equally by Ogden and OPI.
CERTAIN OTHER AGREEMENTS
Pursuant to the Merger Agreement, Ogden has agreed to use all reasonable
efforts to have the Registration Statement declared effective by the Commission
as soon as practicable and to use its best efforts to take any action required
to be taken under state blue sky or securities laws in connection with the
issuance of shares of Ogden Common Stock pursuant to the Merger. Ogden has also
agreed to use its best efforts to have approved for listing on the NYSE, subject
to official notice of issuance, the shares of Ogden Common Stock to be issued
pursuant to the Merger.
Subject to the terms and conditions set forth in the Merger Agreement, each
of the parties thereto has agreed to use all reasonable efforts to take, or
cause to be taken, all actions and to do, or cause to be done, all things
necessary, proper or advisable (including under applicable laws and regulations)
to consummate the Merger as soon as is reasonably possible and otherwise to
consummate and make effective the transactions contemplated by the Merger
Agreement, including using all reasonable efforts to obtain all necessary
waivers, consents and approvals and to effect all necessary registrations and
filings. In case at any time after the Effective Time any further action is
necessary or desirable to carry out the purposes of the Merger Agreement, the
parties have agreed to cause their respective proper officers and/or directors
to take all such necessary action.
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BUSINESS OF OGDEN AND ITS SUBSIDIARIES
Ogden is a diversified company primarily engaged in providing a wide variety
of services through its two operating sectors: Waste-to-Energy Operations and
Operating Services. Ogden participates in the Waste-to-Energy Operations sector
through its approximately 84% owned subsidiary, OPI. OPI, through its
subsidiaries, designs, constructs, operates and maintains waste-to-energy
facilities. In addition, OPI offers a broad range of integrated services to
recycle, manage and market solid waste materials. Ogden's Operating Services are
performed by Ogden Services principally through five major business groups as
follows: (i) Ogden Aviation Services, which provides ground services, catering
and fueling of aircraft at domestic and foreign airports; (ii) Ogden Facility
Services, which provides a broad range of turnkey facility management,
housekeeping, mechanical maintenance, energy management, security, warehousing
and distribution services; (iii) Ogden Entertainment Services, which provides
facility management, concert promotions, food, beverage and merchandise
concession services and maintenance services at amphitheaters, stadiums, arenas
and other venues; (iv) Ogden Government Services, which provides a broad range
of engineering design, drafting and technical support services, biomedical
research and operation and maintenance services; and (v) Ogden Environmental and
Energy Services, which provides engineering and consulting services in the
environmental and energy markets and independent power generation. Certain other
services performed through the Operating Services sector include the removal or
encapsulation of asbestos from office buildings and other structures, food and
housekeeping services to offshore drilling rigs, logistical support services to
remote industrial campsites in the United States and abroad and, through
Atlantic Design Company, engineering, drafting and technical services.
WASTE-TO-ENERGY OPERATIONS
OPI provides waste disposal services and is a leading provider of mass-burn
waste-to-energy services in the United States. Waste-to-energy facilities burn
municipal solid waste ("MSW") to make energy in the form of electricity or
steam. OPI has the exclusive rights to market the Martin Technology in the
United States, Canada, Mexico, Bermuda, certain Caribbean countries, most of
Central and South America and Israel. In addition, OPI has exclusive rights to
develop projects on a design, construct, and operate basis in Germany, the
Netherlands, Denmark, Norway, Sweden, Finland, Poland, and Italy. The Martin
Technology has been utilized in Europe for over 30 years and is currently used
in over 150 waste-to-energy facilities operating worldwide, principally in
Europe, the Far East and the United States. The Martin Technology is used to
process more tons of MSW in the United States than any other technology.
OPI currently operates 25 municipal solid waste-to-energy projects, 17 of
which it owns or leases, at 24 locations, with three projects under
construction, more projects than those of any other builder/operator of such
facilities in the United States. OPI's projects represent approximately one-
quarter of the large-scale waste-to-energy facilities (facilities that process
400 or more tons per day) in operation or under construction in the United
States. In addition, OPI has been awarded the contract for another facility,
which is in development.
OPI concentrates on waste-to-energy projects that are sponsored by county
and municipal governments, authorities, and agencies ("Client Communities"). For
these projects, OPI, through a separate operating subsidiary organized for each
project, enters into long-term service agreements ("Service Agreements"),
typically with terms of 20 years or more, with the Client Community pursuant to
which OPI designs, assists in arranging financing for, plans, oversees
construction of, operates, maintains and, in some instances owns, mass-burn
waste-to-energy facilities.
Under the Service Agreements, Client Communities typically provide funds to
construct the facility, arrange for the delivery of MSW to the facility and pay
OPI a service fee. If OPI owns the facility, the service fee generally includes
specific amounts sufficient to pay the principal and interest on
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the bonds issued to finance the facility until such bonds are paid in full. OPI
typically invests between 10 and 25 percent of the construction cost for those
facilities that it owns.
The Service Agreements generally specify the obligations of OPI and the
Client Community with respect to the construction and operation of the facility
and allocate various risks to the parties. Typically, OPI is responsible for the
risks within its control. In most cases, other project risks (typically termed
"uncontrollable circumstances" in the Service Agreement), such as changes in
applicable federal, state and local laws and other unforeseen circumstances, are
borne by the Client Community. Under the Service Agreements, OPI has guaranteed
(i) the construction price and completion schedules of such projects, (ii) the
operation of its facilities at qualified performance standards, both upon
completion of construction and during the term of its Service Agreements and
(iii) the operation and maintenance pricing, subject to adjustment in accordance
with certain price indices. If a facility is not ultimately accepted by the
Client Community upon completion of construction, OPI may be required to cease
operating the facility and to prepay or assume the full amount of project
indebtedness and pay certain other damages. All of the waste-to-energy
facilities constructed by OPI have been accepted at or above the full
performance standards stated in the Service Agreements and on or before the
scheduled completion dates. Once a facility is accepted by the Client Community,
if OPI is repeatedly unable to operate it in compliance with performance
standards specified in the Service Agreement, the Client Community may replace
OPI as the operator of the facility or terminate the Service Agreement and, in
most cases, require OPI to retire project indebtedness and pay certain other
damages. To date, OPI has operated all of its waste-to-energy facilities, and
expects to continue to operate them, in compliance with the long-term operating
guarantees. Ogden guarantees the performance of OPI's obligations under its
Service Agreements.
OPI has undertaken two projects in which OPI, rather than a Client
Community, sponsored the project, and in the future may undertake other such
projects. With respect to such projects, OPI must negotiate separately with
private haulers and governmental entities, rather than with the Client Community
under the Service Agreements, to ensure delivery of adequate quantities of MSW
for the facilities. For the two projects that OPI has sponsored, OPI has entered
into long-term contracts with third parties which it believes will supply enough
MSW to operate the facilities near their full capacities and ensure sufficient
revenues to pay debt service on the project indebtedness.
OPI also is pursuing opportunities to develop independent power projects
that utilize fuels other than waste, as well as pursuing opportunities to
operate and maintain water and wastewater processing facilities.
OPERATING SERVICES
Aviation Services. This group provides specialized support services, such as
ground services, catering and aircraft fueling to more than 200 commercial
airlines and at more than 90 airports in the United States, Germany, Mexico, the
Caribbean, New Zealand, Czech Republic, The Netherlands, Brazil, Peru, Chile,
Venezuela, Australia and Canada. Ogden's ground services business performs many
specialized aviation services such as cargo, mail and baggage loading and
unloading, aircraft cleaning and maintenance, passenger check-in, terminal
cleaning and maintenance, ground equipment maintenance, interairline baggage
transfer, skycap services, pre-boarding screening, passenger and crew
transportation, food and beverage services and other miscellaneous services. Its
fueling operations include storage and hydrant fueling systems for the fueling
of aircraft as well as assisting airlines in designing, arranging financing and
installing underground fueling systems.
Facility Services. This group provides a comprehensive range of facility
management, maintenance and manufacturing support services to industrial,
commercial, electric utilities, and education and institutional customers
throughout the United States and Canada. The range of services provided include
total facility management; facility operations and maintenance; operations,
maintenance and repair of production equipment; security and protection;
housekeeping; landscaping and grounds care;
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energy management; warehousing and distribution; project and construction
management; and skilled craft support services.
Entertainment Services. This group provides food, beverage and merchandise
concession services, concert promotions, maintenance, janitorial, security,
parking and total facility management services to a wide variety of public and
private entertainment facilities located primarily in North America.
Entertainment Services provides some or all of these services at more than 100
stadiums, convention and exposition centers, arenas, parks, amphitheaters,
fairgrounds and racetracks. Ogden's clients include the Anaheim Stadium
(Anaheim, California), Rich Stadium (Buffalo, New York), the U.S. Air Arena
(Landover, Maryland), the Milwaukee Exposition and Convention Center (Milwaukee,
Wisconsin), the Los Angeles Convention Center and The Great Western Forum (Los
Angeles, California), the Kingdome (Seattle, Washington), Philadelphia Veterans
Stadium (Philadelphia, Pennsylvania), Market Square Arena (Indianapolis,
Indiana), Target Center (Minneapolis, Minnesota), McNichols Arena (Denver,
Colorado), Cobo Hall (Detroit, Michigan) and the Palacio de los Deportes (the
Sports Palace, Mexico City, Mexico). In addition, Ogden promotes and stages
entertainment events in auditoriums, arenas and public facilities across the
United States.
Government Services. This group provides a broad range of engineering,
design, drafting and technical support services; biomedical research; software
design, integration and related services; consulting; total facility management,
including janitorial and security services; and services of all types required
to maintain and operate governmental facilities worldwide to private industry
and federal, state and local agencies.
Environmental and Energy Services. This group provides a comprehensive range
of environmental, infrastructure and energy consulting, engineering and design
services and independent power generation to industrial and commercial
companies, electric utilities and governmental agencies. The group's principal
clients include major corporations in the chemical, petroleum, transportation,
public utility and health care industries, as well as federal and state
governmental authorities.
Other Services. Ogden Services also provides services relating to the
removal and encapsulation of asbestos-containing materials from office buildings
and other facilities as well as providing a wide range of food, housekeeping,
catering, security and other services to customers where people live for
extended periods of time, such as remote job sites and oil rigs. The Atlantic
Design Company, a wholly owned subsidiary of Ogden, provides engineering design,
drafting and technical services, as well as developing and marketing medical
products and custom image capturing products, to various industries within the
United States.
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Revenues by Business Group. The revenues of the business groups comprising
Ogden's Operating Services sector for each of the years in the three-year period
ended December 31, 1993 and for the nine month periods ended September 30, 1994
and 1993 are set forth below. The revenues for the nine months ended September
30,1994 are not necessarily indicative of the results expected for the full 1994
year. This information should be read in conjunction with Management's
Discussion and Analysis of Financial Condition and Results of Operations, the
consolidated financial statements and the consolidated condensed financial
statements included in Ogden's Annual Report on Form 10-K for the fiscal year
ended December 31, 1993 or in Ogden's Quarterly Report on Form 10-Q for the
period ended September 30, 1994. See "Incorporation of Certain Information by
Reference."
<TABLE>
<CAPTION>
NINE MONTHS
ENDED
YEARS ENDED DECEMBER 31, SEPTEMBER 30,
-------------------------------- --------------------
1991 1992 1993 1993 1994
-------- -------- -------- -------- --------
(In millions)
(unaudited)
<S> <C> <C> <C> <C> <C>
Aviation Services........................ $ 338.7 $ 371.7 $ 389.2 $ 292.7 $ 304.4
Facility Services........................ 290.3 306.2 301.7 230.9 214.3
Entertainment Services................... 236.0 211.9 242.4 184.8 193.8
Government Services...................... 179.0 221.9 216.7 154.0 145.3
Environmental and Energy Services........ 111.8 143.2 150.4 109.8 129.0
Other Services........................... 47.5 47.9 57.9 47.1 60.0
-------- -------- -------- -------- --------
Total.................................. $1,203.3 $1,302.8 $1,358.3 $1,019.3 $1,046.8
-------- -------- -------- -------- --------
-------- -------- -------- -------- --------
</TABLE>
46
<PAGE>
DESCRIPTION OF OGDEN CAPITAL STOCK
Ogden's Certificate of Incorporation, as amended (the "Ogden Certificate"),
authorizes 80,000,000 shares of Common Stock, par value $0.50 per share
(referred to herein as the "Ogden Common Stock"), and 4,000,000 shares of
Preferred Stock, par value $1.00 per share (the "Authorized Preferred Stock").
The Board of Directors of Ogden has authority to divide the Authorized Preferred
Stock into one or more series and has broad authority to fix and determine the
relative rights and preferences of the shares of each such series. As of the
Record Date, the only issued and outstanding series of Authorized Preferred
Stock was the Series A Preferred Stock, and there were 43,636,157 shares of
Ogden Common Stock and 53,612 shares of Series A Preferred Stock outstanding. As
described below under "--The Rights Agreement," an additional class of preferred
stock has been authorized; as of the Record Date, no shares of such class have
been issued or are outstanding. The following summary description of the capital
stock of Ogden is qualified in its entirety by reference to the Ogden
Certificate and the Bylaws of Ogden (the "Ogden Bylaws"), incorporated by
reference in this Proxy Statement, and the description of the Rights Agreement
is qualified in its entirety by reference to the Registration Statement of Ogden
on Form 8-A dated September 28, 1990, relating to the Rights, incorported by
reference in this Proxy Statement. See also "Comparison of Stockholders'
Rights."
OGDEN COMMON STOCK
After the requirements in respect of dividends upon any issued and
outstanding series of Authorized Preferred Stock have been met to the end of the
then current quarterly dividend period for any such series of Authorized
Preferred Stock, the holders of Ogden Common Stock are entitled to receive, out
of any remaining net profits or net assets of Ogden available for dividends,
such dividends as may from time to time be declared by the Board of Directors.
Holders of Ogden Common Stock are entitled to share ratably in any dividends so
declared to the exclusion of the holders of the shares of any series of
Authorized Preferred Stock, except as otherwise expressly provided in the Ogden
Certificate, as in the case of the Series A Preferred Stock which, as described
below, is entitled to participate with the Ogden Common Stock as to dividends.
In the event of any liquidation, dissolution, or winding up of Ogden
(whether voluntary or involuntary), after payment in full of any amounts payable
upon any such liquidation, dissolution or winding up, together with all
dividends accrued or in arrears in respect of any series of Authorized Preferred
Stock, the holders of Ogden Common Stock are entitled, to the exclusion of the
holders of shares of any series of Authorized Preferred Stock, to share ratably
per share of Ogden Common Stock in all of the assets of Ogden then remaining.
The Ogden Certificate provides that Ogden may not purchase any shares of Ogden
Common Stock unless it has paid or declared and set aside a sum sufficient to
pay all past and current dividends with respect to shares of Series A Preferred
Stock then issued and outstanding. Ogden is not presently in arrears with
respect to the payment of dividends with respect to the Series A Preferred Stock
and is, therefore, not currently restricted by this provision.
The holders of Ogden Common Stock possess full voting power with respect to
the election of directors and all other purposes, except as limited by the DGCL
and except as described below. Each holder of Ogden Common Stock is entitled to
one vote for each full share of Ogden Common Stock then issued and outstanding
and held in such record holder's name. Holders of Ogden Common Stock vote
together with the holders of Series A Preferred Stock (as described below) and
would vote together with the holders of any other series of Authorized Preferred
Stock which may be issued and entitled to vote in such manner, and not as a
separate class. The Ogden Certificate does not provide for either preemptive
rights or cumulative voting with respect to Ogden Common Stock or Series A
Preferred Stock.
47
<PAGE>
OGDEN PREFERRED STOCK
The minimum dividend rate payable with respect to the Series A Preferred
Stock is $1.875 per share per annum. The holders of Series A Preferred Stock are
also entitled to receive an additional amount per share equal to 50% of the
excess, if any, by which the dividend paid with respect to Ogden Common Stock in
the preceding quarter exceeds $.20 per share (subject to certain adjustments as
set forth in the Ogden Certificate). Dividends payable with respect to Series A
Preferred Stock are cumulative, such that, unless Ogden has paid such dividends
or has declared and set aside a sum sufficient for the payment thereof in
respect of all shares of Series A Preferred Stock then outstanding, then no
dividends (other than dividends payable in kind) may be declared or paid in
respect of shares of Ogden Common Stock.
In the event of any liquidation, dissolution or winding up of Ogden (whether
voluntary or involuntary), the holders of Authorized Preferred Stock are
entitled to receive out of the assets of Ogden available for distribution such
amounts as are specified for each particular series, together with all dividends
accrued or in arrears thereon, before the holders of Ogden Common Stock are
entitled to any distributions out of the remaining assets. In the event of a
voluntary liquidation, dissolution or winding up, the holders of Series A
Preferred Stock are entitled to receive $50 per share together with all
dividends accrued or in arrears thereon, and in the event of any involuntary
liquidation, dissolution or winding up, the holders of Series A Preferred Stock
are entitled to receive $20.15 per share together with all dividends accrued or
in arrears thereon. Ogden may redeem the outstanding shares of Series A
Preferred Stock at any time at a redemption price of $50 per share plus all
dividends accrued or in arrears thereon.
Each share of Series A Preferred Stock is currently convertible at the
option of the holder thereof into 5.97626 fully paid and nonassessable shares of
Ogden Common Stock, subject to adjustment in certain events as specified in the
Ogden Certificate.
The holders of Series A Preferred Stock are entitled to one-half vote for
each share of Series A Preferred Stock and, except as described below, vote
together as a class with the holders of Ogden Common Stock. However, if at any
time dividends with respect to the Series A Preferred Stock have not been paid
in an amount equal to or exceeding the dividends payable in respect of six
quarterly periods, then the holders of Series A Preferred Stock, voting as a
separate class with each share of Series A Preferred Stock having one vote, are
entitled to elect two additional directors to the Board of Directors at the next
annual meeting of stockholders in lieu of voting together with the holders of
Ogden Common Stock in the election of directors, with such right continuing
until all dividends in default have been paid. In addition, the separate consent
or approval of at least two-thirds of the number of shares of any series of
Authorized Preferred Stock then outstanding is required before Ogden can
undertake certain transactions, as specified in the Ogden Certificate, that may
have the effect of adversely affecting the rights of such series.
THE RIGHTS AGREEMENT
On September 20, 1990, the Board of Directors of Ogden declared a dividend
distribution of one Right for each outstanding share of Ogden Common Stock,
payable on October 2, 1990 to the stockholders of record as of the close of
business on such date. Each Right, when exercisable, entitles the registered
holder to purchase from Ogden one one-hundredth of a share of Ogden's Cumulative
Participating Preferred Stock, par value $1.00 per share (the "Junior Preferred
Stock") at a price of $80 per one one-hundredth of a share (the "Purchase
Price"), subject to certain adjustments. The description and terms of the Rights
are set forth in the Rights Agreement.
Until the close of business on the earliest of (i) the tenth day after a
public announcement of facts establishing that a person or group of affiliated
or associated persons has acquired, or obtained the right to acquire, beneficial
ownership of 15% or more of the outstanding shares of Ogden Common Stock (each,
an "Acquiring Person"); (ii) the tenth day (or such later day as may be
determined by action of
48
<PAGE>
the Board of Directors of Ogden prior to such time as any person becomes an
Acquiring Person) after the date of the commencement of a tender or an exchange
offer by any person (other than Ogden) to acquire (when added to any shares as
to which such person is the beneficial owner immediately prior to such
commencement) beneficial ownership of 15% or more of the issued and outstanding
shares of Ogden Common Stock; and (iii) the tenth day (or such later day as may
be determined by action of the Board of Directors of Ogden prior to such time as
any person becomes an Acquiring Person) after the filing by any Person (other
than Ogden) of a registration statement under the Securities Act with respect to
a contemplated exchange offer to acquire (when added to any shares as to which
such person is the beneficial owner immediately prior to such filing) beneficial
ownership of 15% or more of the issued and outstanding shares of Ogden Common
Stock (the earliest of such dates being called the "Distribution Date"), the
Rights will be evidenced, with respect to any Ogden Common Stock certificates
outstanding as of the record date for the Rights, by such Ogden Common Stock
certificates.
The Rights Agreement provides that, until the Distribution Date, the Rights
will be transferred with and only with the Ogden Common Stock. Ogden Common
Stock certificates issued after the record date for the Rights, upon transfer or
new issuance of the underlying Ogden Common Stock, will contain a notation
incorporating the Rights Agreement by reference. Until the Distribution Date,
the surrender for transfer of any Ogden Common Stock certificate will also
constitute the transfer of the Rights associated with the Ogden Common Stock
represented by such certificate and the number of Rights associated with each
share of Ogden Common Stock shall be proportionately adjusted in the event of
any dividend in Ogden Common Stock on Ogden Common Stock or subdivision,
combination or reclassification of Ogden Common Stock. As soon as practicable
following the Distribution Date, separate certificates evidencing the Rights
("Right Certificates") will be mailed to holders of record of Ogden Common Stock
as of the close of business on the Distribution Date, and such separate
certificates alone will evidence the Rights.
The Rights are not exercisable until the Distribution Date. The Rights will
expire on October 2, 2000, unless earlier redeemed by Ogden as described below.
The Purchase Price payable, and the number of shares of Ogden Common Stock
or other securities or property issuable, upon exercise of the Rights are
subject to adjustment from time to time under certain circumstances to prevent
dilution.
In the event that any person becomes an Acquiring Person, the Rights
Agreement provides that proper provision will be made so that each holder of a
Right, other than the Acquiring Person and certain of its transferees (whose
Rights would thereafter be null and void), will thereafter have the right to
receive, upon exercise of a Right, that number of shares of the Ogden Common
Stock having a market value (as defined) of two times the exercise price of the
Right. In the event that, at any time after the Rights become exercisable, Ogden
is acquired in a merger or other business combination, proper provision shall be
made so that each holder of a Right, other than the Acquiring Person and certain
of its transferees (whose Rights would thereafter be null and void), shall
thereafter have the right to receive, upon the exercise thereof at the then
current exercise price of the Right, that number of shares of common stock of
the surviving company (or its parent company or other controlling entity) which
at the time of such transaction would have a market value of two times the
exercise price of the Right.
At any time after the Rights become exercisable and prior to the time that
any person or group become the beneficial owner of 50% or more of the
outstanding Ogden Common Stock, the Ogden Board of Directors may exchange the
Rights (other than Rights held by any Acquiring Person or its transferees, which
would thereafter be null and void) for Ogden Common Stock at a ratio of one
share of Ogden Common Stock per Right, subject to certain adjustments.
Junior Preferred Stock purchasable upon exercise of the Rights will not be
redeemable. Each share of Junior Preferred Stock will be entitled to a minimum
preferential quarterly dividend payable of $1 but will be entitled to an
aggregate dividend of 100 times the dividend declared per share of Ogden
49
<PAGE>
Common Stock. In the event of liquidation, the holders of the Junior Preferred
Stock will be entitled to a minimum preferential liquidation payment of $40 per
share but will be entitled to an aggregate payment of 100 times the payment made
per share of Ogden Common Stock. Each share of Junior Preferred Stock will have
one hundred votes, voting together with the Ogden Common Stock. Finally, in the
event of any merger, consolidation or other transaction in which shares of Ogden
Common Stock are exchanged, each share of Junior Preferred Stock will be
entitled to receive 100 times the amount received per share of Ogden Common
Stock. These rights are protected by customary antidilution provisions. Because
of the nature of the Junior Preferred Stock's dividend and liquidation rights,
the value of the one one-hundredth interest in a share of Junior Preferred Stock
purchasable upon exercise of each Right should approximate the value of one
share of Ogden Common Stock.
At any time prior to the close of business on the date that Rights holders
become entitled to purchase Ogden Common Stock (or common stock of the surviving
entity after a merger with Ogden) with a market value of twice the Purchase
Price (as described above), Ogden may redeem the Rights in whole, but not in
part, at a price of $.01 per Right, subject to certain adjustments (the
"Redemption Price"). Immediately upon the action of the Board of Directors of
Ogden electing to redeem the Rights, the right to exercise the Rights will
terminate and the only right of the holders of Rights will be to receive the
Redemption Price.
Until a Right is exercised, the holder thereof, as such, will have no rights
as a stockholder of Ogden, including, without limitation, the right to vote or
to receive dividends.
At any time prior to the time that an Acquiring Person has become such,
Ogden may amend the Rights Agreement and the terms of the Rights in any manner
it deems necessary or desirable. Thereafter, the Rights Agreement and the terms
of the Rights may be amended by Ogden under certain circumstances but not in any
manner that adversely affects the interests of the holders of the Rights (other
than an Acquiring Person).
50
<PAGE>
COMPARISON OF STOCKHOLDERS' RIGHTS
Upon consummation of the Merger, the Unaffiliated OPI Stockholders (other
than holders of Dissenting Shares) will become stockholders of Ogden. The
following summary compares the material differences between the rights of
holders of shares of Ogden Common Stock and the rights of holders of OPI Common
Stock. Ogden and OPI are both incorporated under the laws of the State of
Delaware; accordingly, the only differences in the rights of such holders arise
from the distinctions between the Ogden Certificate and the Ogden Bylaws and the
OPI Certificate and the OPI Bylaws. Copies of the respective Bylaws and
Certificates of Incorporation may be obtained as described under "Available
Information."
The following summary does not purport to be a complete statement of the
rights of holders of shares of Ogden Common Stock and OPI Common Stock under,
and is qualified in its entirety by reference to, the respective Certificates of
Incorporation and Bylaws of Ogden and OPI. See also "Description of Ogden
Capital Stock."
VOTING AND OTHER RIGHTS
Holders of Ogden Common Stock and OPI Common Stock are entitled to one vote
per share of stock. Holders of Ogden's Series A Preferred Stock are entitled to
one-half vote per share of Series A Preferred Stock and vote together as a class
with the holders of Ogden Common Stock except under certain circumstances
previously discussed above. See "Description of Ogden's Capital Stock--Ogden
Preferred Stock."
Under Delaware law, stockholders do not have preemptive rights unless such
rights are expressly granted by the certificate of incorporation. Neither the
Ogden Certificate nor the OPI Certificate provide for preemptive rights.
Adoption of the Appraisal Rights Amendment is a condition to consummation of the
Merger. Accordingly, holders of OPI Common Stock will be entitled to appraisal
rights in connection with the Merger. See "The Merger--Appraisal Rights" and
"The Appraisal Rights Amendment." The Ogden Certificate has no counterpart to
the Appraisal Rights Amendment.
DIRECTORS
Both the OPI Certificate and the Ogden Certificate provide that their
respective Boards of Directors shall be divided into three classes. The Ogden
Certificate requires that there be no fewer than 12 and no more than 18
directors (except under certain extraordinary circumstances under which
dividends have not been paid for a prescribed period of time), and the Ogden
Bylaws set the number of directors at 16. The OPI Certificate sets the number of
directors at no fewer than 8 and no more than 16. The specific number is fixed
by a vote of the majority of the entire board, and as of the Record Date there
were nine directors of OPI. The Ogden Certificate and the OPI Certificate
require an 80% vote and a two-thirds vote, respectively, of all stock eligible
to vote to amend the provisions therein regarding the number of directors.
Neither the OPI Certificate nor the Ogden Certificate provides for cumulative
voting for directors. As described above, in certain circumstances, holders of
Preferred Stock vote as a separate class for the election of directors.
Under Delaware law, if a corporation's board is classified its stockholders
may not remove directors without cause unless expressly permitted to do so by
the charter document. Neither the Ogden Certificate nor the OPI Certificate
makes any provision for removal of directors by stockholders without cause.
Each of the Ogden Certificate and the OPI Certificate eliminates the
personal liability of its directors to the corporation or its stockholders for
monetary damages for breaches of fiduciary duty as a director, except to the
extent such exemption or limitation is not permitted by the DGCL. In addition,
each of the Ogden Bylaws and the OPI Bylaws generally provides indemnification
and advancement of expenses to its directors, in connection with actual or
threatened proceedings involving them in their corporate capacity, in accordance
with the standards and procedures currently reflected in Section 145 of the
DGCL.
51
<PAGE>
PREFERRED STOCK
Both the OPI Certificate and the Ogden Certificate authorize their
respective directors to issue, without stockholder approval, preferred stock,
and generally to designate the powers, rights, preferences and privileges of
the stock and the restrictions thereon. As of the Record Date, there was no
preferred stock of OPI issued and outstanding, and there were 53,612 shares of
Series A Preferred Stock of Ogden issued and outstanding. As described above,
in certain circumstances, holders of Series A Preferred Stock vote as a
separate class for the election of directors. Dividends upon the Series A
Preferred Stock of Ogden are cumulative and must be declared and paid before
any dividends (other than dividends payable in kind) may be declared or paid
on Ogden Common Stock and before any Ogden Common Stock may be purchased by
Ogden or by any of its subsidiaries. For further discussion of dividends and
of Ogden's Authorized Preferred Stock, see "Description of Ogden Capital Stock."
SPECIAL MEETINGS
Under Delaware law, the board of directors or a person or persons designated
in the certificate of incorporation or the bylaws may call special meetings. The
Ogden Bylaws allow special meetings of the stockholders only if requested by the
Chairman or Vice-Chairman of the Board of Directors or by a majority of the
Board. The OPI Bylaws provide that the Board, the Chairman of the Board and
Chief Executive Officer, the President and Chief Operating Officer or
stockholders owning a majority of the outstanding shares of OPI Common Stock may
call a special meeting. As of the Record Date, Ogden owned approximately 84% of
the outstanding shares of OPI Common Stock and thus has the power to call a
special meeting of OPI stockholders.
ACTION BY CONSENT WITHOUT A MEETING
Delaware law provides that, unless otherwise provided in the certificate of
incorporation, any action required to be taken at an annual or special meeting
may be taken without a meeting, assuming a requisite number of consents in
writing by stockholders. Both the Ogden and OPI Certificates stipulate that no
action can be taken except at an annual or special meeting (although the OPI
Certificate allows action by written consent if all of OPI's voting securities
are held by a single stockholder).
EXTRAORDINARY EVENTS
The Ogden Certificate requires the affirmative vote at a meeting of the
holders of record of at least two-thirds of the total shares of Ogden stock then
outstanding before Ogden may consolidate or merge with another corporation or
before any sale of all or substantially all of the assets of Ogden. In addition,
the Ogden Certificate requires approval of the holders of at least two-thirds of
each series of Authorized Preferred Stock then outstanding before Ogden may
undertake certain transactions affecting the preferences, rights and powers of
such preferred stock, effect the voluntary liquidation, dissolution or winding
up of Ogden, sell, lease or exchange all or substantially all of the assets,
property or business of Ogden or effect certain mergers of Ogden with or into
other corporations.
The OPI Certificate requires an affirmative vote of the holders of
two-thirds of the shares of OPI Common Stock then outstanding and entitled to
vote thereon before OPI may consolidate or merge with another corporation or
before any sale, lease, exchange or transfer of all or substantially all of the
assets of OPI. As of the Record Date, Ogden owned approximately 84% of the
outstanding shares of OPI Common Stock and, therefore, has sufficient voting
power to approve and adopt the Merger Agreement regardless of the vote of any
other OPI stockholder.
The Ogden Certificate requires an affirmative vote of 80% of the total
capital stock outstanding and entitled to vote generally in the election of
directors to approve "Business Transactions" (as defined therein) with "Related
Persons" (as defined therein) unless two-thirds of the "Continuing Directors"
(as defined therein), who constitute at least a majority of the Board, approve
the transaction or unless certain other requirements set forth in the Ogden
Certificate are met. An 80% vote also would be required to repeal or amend this
provision, as described below.
52
<PAGE>
AMENDMENT OF CERTIFICATE
Under Delaware law, a certificate of incorporation may be amended if the
board of directors adopts a resolution setting forth the proposed amendment and
declares its advisability, and the stockholders subsequently approve the
proposed amendment at either a special meeting called by the board or at the
next annual stockholders' meeting. Unless otherwise specified in the certificate
of incorporation, a majority of the outstanding shares entitled to vote
generally must approve the proposed amendment.
The Ogden Certificate provides that the following provisions (including the
provision that so provides) cannot be repealed or amended in any respect (nor
may any provision be adopted that is inconsistent with the following provisions)
without an 80% affirmative vote of stockholders: the prohibition on cumulative
voting for directors; the minimum and maximum number of directors and the
requirement of a classified board; the requirement that holders of Ogden
Common Stock are entitled to one vote per share; and the provision requiring an
80% supermajority vote and imposing certain related requirements with respect to
"Business Transactions."
The OPI Certificate provides that the following provisions (including the
provision that so provides) cannot be repealed or amended in any respect (nor
may any provision be adopted that is inconsistent with the following provisions)
with less than a two-thirds vote of the shares of stock outstanding and entitled
to vote thereon: the requirement of one vote per share of OPI Common Stock; the
prohibition on cumulative voting for directors, the minimum and maximum number
of directors and the requirement of a classified board; the limitations on
action by stockholders outside of meetings; and the provision concerning the
need to approve any merger, sale or consolidation by a two-thirds vote. As of
the Record Date, Ogden owned approximately 84% of the outstanding shares of OPI
Common Stock and, therefore, has sufficient voting power to approve the
Appraisal Rights Amendment regardless of the vote of any other OPI stockholder.
AMENDMENT OF BYLAWS
Both the Ogden Certificate and the OPI Certificate give their respective
boards of directors the power to amend, add to or repeal their respective bylaws
without stockholder action except where required in the bylaws, and the bylaws
of both corporations also give stockholders the power to amend, repeal or change
the bylaws enacted by the directors.
RIGHTS AGREEMENT
As described in "Description of Ogden Capital Stock--The Rights Agreement,"
Ogden adopted the Rights Agreement in 1990. OPI has no rights agreement.
THE APPRAISAL RIGHTS AMENDMENT
The OPI Board of Directors has unanimously approved the Appraisal Rights
Amendment, which is an amendment to the OPI Certificate to provide appraisal
rights, pursuant to Section 262 of the DGCL, to holders of OPI Common Stock who
do not vote in favor of the Merger or certain similar transactions consummated
prior to June 30, 1995, and elect to demand appraisal in accordance with Section
262. Under Section 262 of the DGCL, stockholders of Delaware corporations (such
as OPI) have appraisal rights with respect to certain mergers. However, pursuant
to Section 262 of the DGCL, because (among other reasons) OPI Common Stock is
listed on the NYSE and the Ogden Common Stock to be received by Unaffiliated OPI
Stockholders in the Merger is listed on the NYSE, Unaffiliated OPI Stockholders
would not have been entitled to appraisal rights in connection with the Merger
in the absence of a provision (such as the Appraisal Rights Amendment) in the
OPI Certificate, authorizing such appraisal rights. Representatives of the Class
Action Plaintiffs requested appraisal rights for stockholders of OPI who
dissented from the Merger, and OPI agreed to grant such rights in connection
with the signing of the Memorandum of Understanding. Effectiveness of the
Appraisal Rights Amendment is contingent upon its approval by the holders of a
majority of the outstanding shares of OPI Common Stock and the filing of the
Appraisal Rights Amendment with the Secretary of State of the State of Delaware
in
53
<PAGE>
accordance with the DGCL. Effectiveness of the Appraisal Rights Amendment is,
under the Merger Agreement, a condition to consummation of the Merger. See "The
Merger--Background of the Merger," "--Litigation Relating to the Merger" and
"--Appraisal Rights."
The text of Section 262 of the DGCL is reproduced in full as Exhibit C
hereto. Among other things, Section 262 requires that any demand for appraisal
must be made and delivered in writing to OPI prior to the vote on the Merger at
the Special Meeting. Submission of a proxy instructing that shares be voted
against approval of the Merger Agreement by itself does not constitute such a
demand. In addition, appraisal rights will only be available to stockholders who
have not voted in favor of the Merger. Failure to take any of the steps required
under Section 262 of the DGCL on a timely basis may result in the loss of
appraisal rights. For a summary of the requirements of Section 262 and of
the appraisal rights that will be available to OPI stockholders in connection
with the Merger pursuant to the Appraisal Rights Amendment and Section 262 of
the DGCL, see "The Merger--Appraisal Rights."
VOTE REQUIRED
At the Special Meeting, OPI stockholders will be asked to approve the
Appraisal Rights Amendment. Adoption of the Appraisal Rights Amendment requires
the affirmative vote of the holders of a majority of the outstanding shares of
OPI Common Stock. As of the Record Date, Ogden owned approximately 84% of the
outstanding OPI Common Stock and, therefore, has sufficient voting power to
approve the Appraisal Rights Amendment proposal regardless of the vote of any
other stockholder. Ogden will vote its shares in favor of the Appraisal Rights
Amendment. Accordingly, stockholder approval of the Appraisal Rights Amendment
proposal is assured.
EXPERTS
The consolidated financial statements and related financial statement
schedules of Ogden incorporated in this Proxy Statement/Prospectus by reference
from the Annual Report on Form 10-K of Ogden for the year ended December 31,
1993 have been audited by Deloitte & Touche LLP, independent auditors, as stated
in their reports (which reports express an unqualified opinion and include an
explanatory paragraph relating to the adoption of Statement of Financial
Accounting Standards No. 106 and No. 109), which are incorporated herein by
reference, and have been so incorporated in reliance upon the report of such
firm given upon their authority as experts in accounting and auditing.
The consolidated financial statements and related financial statement
schedules of OPI incorporated in this Proxy Statement/Prospectus by reference
from the Annual Report on Form 10-K of OPI for the year ended December 31, 1993
have been audited by Deloitte & Touche LLP, independent auditors, as stated in
their reports (which reports express an unqualified opinion and include an
explanatory paragraph relating to the adoption of Statement of Financial
Accounting Standards No. 109), which are incorporated herein by reference, and
have been so incorporated in reliance upon the report of such firm given upon
their authority as experts in accounting and auditing.
LEGAL MATTERS
The validity of the shares of Ogden Common Stock to be issued pursuant to
the Merger and certain other matters relating thereto will be passed upon for
Ogden by its special counsel Cleary, Gottlieb, Steen & Hamilton, New York, New
York. Rogers & Wells, New York, New York, has acted as special counsel to OPI
and to the Special Committee with respect to the Merger.
STOCKHOLDER PROPOSALS
In the event the Merger is not consummated, any OPI stockholder who desires
to submit a proposal to OPI for consideration for inclusion in OPI management's
proxy statement relating to its next Annual Meeting of Stockholders must have
delivered such proposal in writing to the Secretary of OPI at its principal
executive offices by December 15, 1994.
54
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EXHIBIT A
AMENDED AND RESTATED
AGREEMENT AND PLAN OF MERGER
BY AND AMONG
OGDEN CORPORATION,
OPI ACQUISITION CORP.
AND
OGDEN PROJECTS, INC.
DATED AS OF SEPTEMBER 27, 1994
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
----
<C> <C> <S> <C>
I. THE MERGER
SECTION 1.1 The Merger........................................................ A-1
SECTION 1.2 Effective Time of the Merger...................................... A-1
<CAPTION>
II. THE SURVIVING CORPORATION
<C> <C> <S> <C>
SECTION 2.1 Certificate of Incorporation...................................... A-2
SECTION 2.2 Bylaws............................................................ A-2
SECTION 2.3 Board of Directors; Officers...................................... A-2
<CAPTION>
III. CONVERSION OF SHARES
<C> <C> <S> <C>
SECTION 3.1 Exchange Ratio.................................................... A-2
SECTION 3.2 Exchange of Shares; Responsibility for Payments................... A-3
SECTION 3.3 Dividends; Transfer Taxes......................................... A-3
SECTION 3.4 No Fractional Shares.............................................. A-4
SECTION 3.5 Closing of the Company's Transfer Books........................... A-4
SECTION 3.6 Closing........................................................... A-4
<CAPTION>
IV. REPRESENTATIONS AND WARRANTIES OF PARENT
<C> <C> <S> <C>
SECTION 4.1 Organization and Qualification.................................... A-4
SECTION 4.2 Capitalization.................................................... A-5
SECTION 4.3 Authority Relative to this Agreement.............................. A-5
SECTION 4.4 Governmental Approvals............................................ A-5
SECTION 4.5 No Violations..................................................... A-5
SECTION 4.6 Reports and Financial Statements.................................. A-5
SECTION 4.7 Absence of Certain Changes or Events.............................. A-6
SECTION 4.8 Litigation........................................................ A-6
SECTION 4.9 Information in Disclosure Documents, Registration Statements,
Etc............................................................... A-6
SECTION 4.10 No Brokers........................................................ A-7
SECTION 4.11 Reorganization.................................................... A-7
SECTION 4.12 Compliance with Law............................................... A-7
SECTION 4.13 No Violation of Rights Agreement.................................. A-7
<CAPTION>
V. REPRESENTATIONS AND WARRANTIES OF THE COMPANY
<C> <C> <S> <C>
SECTION 5.1 Organization and Qualification.................................... A-7
SECTION 5.2 Capitalization.................................................... A-7
SECTION 5.3 Subsidiaries...................................................... A-8
SECTION 5.4 Authority Relative to this Agreement.............................. A-8
SECTION 5.5 Governmental Approvals............................................ A-8
SECTION 5.6 No Violations..................................................... A-8
SECTION 5.7 Reports and Financial Statements.................................. A-9
SECTION 5.8 Absence of Certain Changes or Events.............................. A-9
SECTION 5.9 Litigation........................................................ A-9
SECTION 5.10 Compliance with Law............................................... A-9
SECTION 5.11 Information in Disclosure Documents, Registration Statements,
Etc............................................................... A-9
SECTION 5.12 Employee Benefit Plans; ERISA..................................... A-10
SECTION 5.13 Antitakeover Statute Inapplicable................................. A-10
</TABLE>
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<PAGE>
<TABLE>
<CAPTION>
PAGE
----
SECTION 5.14 Company and Special Committee Action; Fairness Opinion............ A-10
<C> <C> <S> <C>
SECTION 5.15 Vote Required..................................................... A-10
SECTION 5.16 No Brokers........................................................ A-10
SECTION 5.17 Reorganization.................................................... A-10
<CAPTION>
VI. REPRESENTATIONS AND WARRANTIES REGARDING SUB
<C> <C> <S> <C>
SECTION 6.1 Organization...................................................... A-11
SECTION 6.2 Capitalization.................................................... A-11
SECTION 6.3 Authority Relative to this Agreement.............................. A-11
<CAPTION>
VII. CONDUCT OF BUSINESS PENDING THE MERGER
<C> <C> <S> <C>
SECTION 7.1 Conduct of Business by the Company Pending the Merger............. A-11
SECTION 7.2 Conduct of Business by Parent Pending the Merger.................. A-12
SECTION 7.3 Conduct of Business of Sub........................................ A-12
<CAPTION>
VIII. ADDITIONAL AGREEMENTS
<C> <C> <S> <C>
SECTION 8.1 Access and Information............................................ A-12
SECTION 8.2 Registration Statement/Proxy Statement............................ A-13
SECTION 8.3 Stockholders' Meeting............................................. A-13
SECTION 8.4 Compliance with the Securities Act................................ A-13
SECTION 8.5 Stock Exchange Listing............................................ A-14
SECTION 8.6 Director and Officer Indemnification.............................. A-14
SECTION 8.7 Fees and Expenses................................................. A-14
SECTION 8.8 Publicity......................................................... A-14
SECTION 8.9 Additional Agreements............................................. A-14
<CAPTION>
IX. CONDITIONS PRECEDENT
<C> <C> <S> <C>
SECTION 9.1 Conditions to Each Party's Obligation to Effect the Merger........ A-14
SECTION 9.2 Conditions to Obligation of the Company to Effect the Merger...... A-15
SECTION 9.3 Conditions to Obligations of Parent and Sub to Effect the
Merger............................................................ A-16
<CAPTION>
X. TERMINATION, AMENDMENT AND WAIVER
<C> <C> <S> <C>
SECTION 10.1 Termination....................................................... A-17
SECTION 10.2 Effect of Termination............................................. A-17
SECTION 10.3 Amendment......................................................... A-17
SECTION 10.4 Waiver............................................................ A-17
<CAPTION>
XI. GENERAL PROVISIONS
<C> <C> <S> <C>
SECTION 11.1 Non-Survival of Representations, Warranties and Agreements........ A-18
SECTION 11.2 Notices........................................................... A-18
SECTION 11.3 Subsidiaries...................................................... A-18
SECTION 11.4 Interpretation.................................................... A-19
SECTION 11.5 Company and Board Action.......................................... A-19
SECTION 11.6 Miscellaneous..................................................... A-19
</TABLE>
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<PAGE>
AMENDED AND RESTATED
AGREEMENT AND PLAN OF MERGER
AMENDED AND RESTATED AGREEMENT AND PLAN OF MERGER (this "Agreement"), dated
as of September 27, 1994, by and among Ogden Corporation, a Delaware corporation
("Parent"), OPI Acquisition Corp., a Delaware corporation and a wholly owned
subsidiary of Parent ("Sub"), and Ogden Projects, Inc., a Delaware corporation
(the "Company").
WITNESSETH
WHEREAS, Parent owns 32,000,000 shares of the Common Stock, par value $.50
per share, of the Company ("Company Common Stock"), constituting approximately
84% of the outstanding shares of Company Common Stock;
WHEREAS, the Board of Directors of the Company, based on the unanimous
recommendation of a special committee of independent directors of the Company
(the "Special Committee"), and the Boards of Directors of Parent and Sub, have
by unanimous votes approved the merger of Sub with and into the Company (the
"Merger"), upon the terms and subject to the conditions set forth herein;
WHEREAS, the Board of Directors of the Company has approved an amendment
(the "Appraisal Rights Amendment") to the Company's amended and restated
certificate of incorporation to provide appraisal rights, pursuant to Section
262 of the General Corporation Law of the State of Delaware (the "DGCL"), to
holders of Company Common Stock who do not vote in favor of the Merger and elect
to demand appraisal;
WHEREAS, the Merger will result in Parent owning 100% of the equity interest
of the Surviving Corporation (as defined below); and
WHEREAS, for federal income tax purposes, it is intended that the Merger
shall qualify as a reorganization within the meaning of Section 368(a) of the
Internal Revenue Code of 1986, as amended (the "Code");
NOW, THEREFORE, in consideration of the premises and the representations,
warranties and agreements contained herein, the parties hereto agree as follows:
ARTICLE I
THE MERGER
SECTION 1.1 The Merger. Subject to the terms and conditions hereof, at the
Effective Time (as defined in Section 1.2), Sub shall be merged into the Company
and the separate existence of Sub shall thereupon cease, and the name of the
Company, as the surviving corporation in the Merger (the "Surviving
Corporation"), shall by virtue of the Merger remain "Ogden Projects, Inc." The
Merger shall have the effects set forth in the DGCL.
SECTION 1.2 Effective Time of the Merger. The Merger shall become effective
when, in accordance with the DGCL, a properly executed Certificate of Merger is
duly filed with the Secretary of State of the State of Delaware, which filing
shall be made contemporaneously with the closing of the transactions
contemplated by this Agreement in accordance with Section 3.6. When used in this
Agreement, the term "Effective Time" shall mean the date and time at which such
Certificate is so filed.
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ARTICLE II
THE SURVIVING CORPORATION
SECTION 2.1 Certificate of Incorporation. The Certificate of Incorporation
of Sub as in effect immediately prior to the Effective Time shall be the
Certificate of Incorporation of the Surviving Corporation, until such
Certificate of Incorporation is thereafter changed or amended as provided
therein or by law, except that Article First of the Certificate of Incorporation
of the Surviving Corporation shall be amended to read as follows: "The name of
the Corporation is OGDEN PROJECTS, INC."
SECTION 2.2 Bylaws. The Bylaws of Sub as in effect immediately prior to the
Effective Time shall be the Bylaws of the Surviving Corporation.
SECTION 2.3 Board of Directors; Officers.
(a) The directors of Sub immediately prior to the Effective Time shall be
the initial directors of the Surviving Corporation and shall serve until their
respective successors are duly elected or appointed and qualify in the manner
provided in the Certificate of Incorporation and Bylaws of the Surviving
Corporation, or as otherwise provided by law.
(b) The officers of the Company immediately prior to the Effective Time
shall be the initial officers of the Surviving Corporation and shall serve until
their respective successors are duly elected or appointed and qualify in the
manner provided in the Certificate of Incorporation and Bylaws of the Surviving
Corporation, or as otherwise provided by law.
ARTICLE III
CONVERSION OF SHARES
SECTION 3.1 Exchange Ratio. As of the Effective Time, by virtue of the
Merger and without any action on the part of any holder of Company Common Stock:
(a) All shares of Company Common Stock which are held in the treasury by
the Company or by any subsidiary of the Company, and any shares of Company
Common Stock owned of record by Parent, Sub or any other subsidiary of
Parent, shall be cancelled (the "Cancelled Shares").
(b) Subject to Section 3.4, each then issued and outstanding share of
Company Common Stock (other than the Cancelled Shares and other than shares
of Company Common Stock as to which appraisal rights shall have been duly
demanded ("Dissenting Shares")) shall be converted solely into the right to
receive, upon the surrender of the certificate formerly representing such
share of Company Common Stock (a "Certificate") in accordance with Section
3.2, (i) 0.84 of a share (the "Exchange Ratio") of Common Stock, par value
$.50 per share, of Parent ("Parent Common Stock") and (ii) for each whole
share of Parent Common Stock into which the shares of Company Common Stock
represented by such Certificate are so convertible pursuant to the
immediately preceding clause (i), a right (each a "Right" and collectively,
the "Rights") issued pursuant to the Rights Agreement, dated as of September
20, 1990, between Parent and Chemical Bank (formerly Manufacturers Hanover
Trust Company), as agent (the "Rights Agreement").
(c) Each then issued and outstanding share of Common Stock, par value
$.50 per share, of Sub ("Sub Common Stock") shall be converted into one
share of Common Stock, par value $.50 per share, of the Surviving
Corporation.
(d) Each option to purchase shares of Company Common Stock ("Company
Stock Options") which is outstanding immediately prior to the Effective Time
pursuant to the Company's 1989 Employees' Stock Option Plan (the "Stock
Option Plan") shall be converted into the right to
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receive (subject to any required action by stockholders), at no additional
cost to the individual holding such option, in lieu of the number of shares
of Company Common Stock then subject to such option, a number of shares of
Parent Common Stock and Rights which such individual would have been
entitled to receive pursuant to this Agreement if at the Effective Time such
individual had been a holder of record of a number of shares of Company
Common Stock equal to the number of shares of Company Common Stock then
subject to such option ("Parent Stock Options"). Each Parent Stock Option
and the obligation to issue shares of Parent Common Stock upon exercise of
Parent Stock Options shall be assumed by Parent effective as of the
Effective Time. Fractional shares shall not be issued upon the exercise of
Parent Stock Options. Each Parent Stock Option shall otherwise be
exercisable upon the same terms and conditions as set forth in the option
agreement respecting the Company Stock Option converted into such Parent
Stock Option. Such terms and conditions shall include a per share option
price that reflects the foregoing. As promptly as practicable after the
Effective Time, Parent shall prepare and file with the Securities and
Exchange Commission, and cause to become effective under the Securities Act
of 1933, as amended, a registration statement on Form S-8 with respect to
any Parent Stock Options issued pursuant to this paragraph.
(e) The holders of Dissenting Shares, if any, shall be entitled to
payment by the Surviving Corporation of the appraised value of such shares
to the extent permitted by and in accordance with the provisions of the
Appraisal Rights Amendment and Section 262 of the DGCL; provided, however,
that (i) if any holder of the Dissenting Shares shall, under the
circumstances permitted by the DGCL, subsequently deliver a written
withdrawal of his demand for appraisal of such shares, or (ii) if any holder
fails to establish his entitlement to rights to payment as provided in such
Section 262, or (iii) 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 such Section 262,
such holder or holders (as the case may be) shall forfeit such right to
payment for such shares and such shares shall thereupon be deemed to have
been converted into Parent Common Stock pursuant to Section 3.1(b) hereof as
of the Effective Time. The Surviving Corporation shall be solely responsible
for, and shall pay out of its own funds, any amounts which become due and
payable to holders of Dissenting Shares. Such amounts shall not be paid
directly or indirectly by Parent.
SECTION 3.2 Exchange of Shares; Responsibility for Payments. Prior to the
Effective Time, Parent shall authorize Chemical Bank, or such other bank or
trust company having a place of business in New York City and that is reasonably
acceptable to the Company, to act as Exchange Agent hereunder (the "Exchange
Agent"). As soon as practicable after the Effective Time, the Exchange Agent
shall mail and make available to each record holder of a Certificate or
Certificates a notice and letter of transmittal in customary form advising such
holder of the effectiveness of the Merger and the procedure for surrendering to
the Exchange Agent such Certificate or Certificates for exchange pursuant to
this Agreement. Upon the surrender to the Exchange Agent of such Certificate or
Certificates, together with such letter of transmittal duly executed and
completed in accordance with the instructions thereon, the Exchange Agent shall
promptly cause to be delivered to such holder, and each holder of a Certificate
will be entitled to receive, certificates representing the number of shares
(rounded down to the nearest whole number) of Parent Common Stock into which the
shares of Company Common Stock represented by such Certificate were converted in
the Merger (and representing an equal number of Rights) and a check payable to
such holder representing the payment of cash in lieu of fractional shares of
Parent Common Stock, if any, determined in accordance with Section 3.4, to which
such holder is entitled. Certificates so surrendered shall forthwith be
cancelled. Parent Common Stock into which Company Common Stock shall be
converted in the Merger shall be deemed to have been issued at the Effective
Time.
SECTION 3.3 Dividends; Transfer Taxes. No dividends or distributions that
are declared or made on Parent Common Stock after the Effective Time with a
record date after the Effective Time will
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be paid to persons entitled to receive certificates representing Parent Common
Stock pursuant to this Agreement until such persons surrender their Certificates
representing Company Common Stock. Upon such surrender, there shall be paid to
the person in whose name the certificates representing such Parent Common Stock
shall be issued, any dividends or distributions which shall have become payable
with respect to such Parent Common Stock between the Effective Time and the time
of such surrender. In no event shall the person entitled to receive such
dividends or distributions be entitled to receive interest thereon. In the event
that any certificates for any shares of Parent Common Stock are to be issued in
a name other than that in which the Certificates representing shares of Company
Common Stock surrendered in exchange therefor are registered, it shall be a
condition of such exchange that the person requesting such exchange shall pay to
the Exchange Agent any transfer or other taxes required by reason of the
issuance of certificates for such shares of Parent Common Stock in a name other
than that of the registered holder of the Certificate surrendered, or shall
establish to the satisfaction of the Exchange Agent that such tax has been paid
or is not applicable.
SECTION 3.4 No Fractional Shares. No certificates or scrip representing
fractional shares of Parent Common Stock shall be issued upon the surrender for
exchange of Certificates representing Company Common Stock pursuant to this
Article III, and no dividend, distribution, stock split or other change in the
capital structure of Parent shall relate to any fractional security, and such
fractional interests shall not entitle the owner thereof to vote or to any
rights of a security holder of Parent. In lieu of any such fractional shares,
each holder of Company Common Stock who would otherwise have been entitled to a
fraction of a share of Parent Common Stock upon surrender of Certificates for
exchange pursuant to this Article III shall be paid by the Surviving Corporation
an amount in cash (without interest) upon such surrender equal to such fraction
multiplied by the closing sale price of Parent Common Stock as reported in the
consolidated transaction reporting system of the New York Stock Exchange (the
"NYSE") on the date of the Effective Time or, if Parent Common Stock is not so
traded on such date, the closing sale price on the next preceding day on which
such a closing sale price was reported in the consolidated transaction reporting
system of the NYSE.
SECTION 3.5 Closing of the Company's Transfer Books. Upon the date of the
Effective Time, the stock transfer books of the Company shall be closed and no
transfer of shares of Company Common Stock shall be made thereafter. If, after
the Effective Time, Certificates are presented to the Surviving Corporation,
they shall be cancelled and exchanged for certificates representing Parent
Common Stock and/or cash as provided in this Article III. Notwithstanding the
foregoing, or any other provision of this Article III, neither the Exchange
Agent nor any party hereto shall be liable to a holder of shares of Company
Common Stock for any shares of Parent Common Stock or dividends or distributions
thereon, or, in accordance with Section 3.4, amounts due in respect of
fractional interests, delivered to a public official pursuant to any applicable
escheat, unclaimed property or other similar laws.
SECTION 3.6 Closing. The closing of the transactions contemplated by this
Agreement (the "Closing") shall take place (i) at the offices of Cleary,
Gottlieb, Steen & Hamilton, One Liberty Plaza, New York New York 10006, at 10:00
A.M. local time on the later of (x) the business day next following the date of
the Meeting (as defined in Section 8.3) or (y) the day on which the last of the
conditions set forth in Article IX is fulfilled or waived or (ii) at such other
time and place as Parent and the Company shall agree.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF PARENT
Parent represents and warrants to the Company as follows:
SECTION 4.1 Organization and Qualification. Parent is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Delaware and has the corporate power to
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<PAGE>
carry on its business as it is now being conducted or presently proposed to be
conducted. Parent is duly qualified as a foreign corporation to do business, and
is in good standing, in each jurisdiction where the character of its properties
owned or held under lease or the nature of its activities make such
qualification necessary, except where the failure to be so qualified will not,
individually or in the aggregate, have a material adverse effect on the
business, properties, assets, financial condition or results of operations of
Parent and its subsidiaries taken as a whole (a "Parent Material Adverse
Effect").
SECTION 4.2 Capitalization. The authorized capital stock of Parent consists
of 80,000,000 shares of Parent Common Stock and 4,000,000 shares of Preferred
Stock, par value $1.00 per share ("Parent Preferred Stock"). As of the close of
business on September 21, 1994, 43,616,804 shares of Parent Common Stock and
54,090 shares of Parent Preferred Stock (all of which are designated as Series A
$1.875 Cumulative Convertible Preferred Stock) were issued and outstanding. All
of the shares of Parent Common Stock issuable in exchange for Company Common
Stock at the Effective Time in accordance with this Agreement will be, when so
issued, duly authorized, validly issued, fully paid and nonassessable and free
of preemptive rights.
SECTION 4.3 Authority Relative to this Agreement. Parent has the corporate
power to enter into this Agreement and to carry out its obligations hereunder.
The execution and delivery of this Agreement and the consummation of the
transactions contemplated hereby have been duly authorized by Parent's Board of
Directors, and no stockholder approval or other corporate proceedings on the
part of Parent are necessary to authorize this Agreement and the transactions
contemplated hereby. This Agreement has been duly and validly executed and
delivered by each of Parent and Sub and (assuming the due and valid execution
and delivery by the Company) is a valid and binding agreement of each of Parent
and Sub, enforceable against Parent and Sub in accordance with its terms (except
as enforceability may be limited by bankruptcy, insolvency, moratorium or other
similar laws affecting creditors' rights generally or by the principles
governing the availability of equitable remedies).
SECTION 4.4 Governmental Approvals. Except as referred to herein or in
connection with or in compliance with the provisions and applicable requirements
of the Securities Act, the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), the corporation, securities, takeover and blue sky laws of the
various states (including the DGCL), and the rules and regulations of the NYSE,
no filing or registration with, or authorization, consent or approval of, any
public body or authority is necessary for the consummation by Parent and Sub of
the Merger or the other transactions contemplated by this Agreement, other than
filings, registrations, authorizations, consents or approvals that the failure
to make or obtain would in the aggregate neither have a Parent Material Adverse
Effect nor prevent the consummation or call into question the validity of the
transactions contemplated hereby.
SECTION 4.5 No Violations. Neither the execution and delivery of this
Agreement by Parent or Sub, nor the consummation by Parent or Sub of the
transactions contemplated hereby, nor compliance by Parent or Sub with any of
the provisions hereof, will (i) conflict with or result in any breach of any
provisions of the Certificate of Incorporation or Bylaws of Parent or Sub, (ii)
result in a violation or breach of, or constitute (with or without due notice or
lapse of time or both) a default (or give rise to any right of termination,
cancellation or acceleration) under, any of the terms, conditions or provisions
of any note, bond, mortgage, indenture, license, contract, agreement or other
instrument or obligation to which Parent or any of its subsidiaries is a party
or by which any of them or any of their properties or assets may be bound, or
(iii) violate any order, writ, injunction, decree, statute, rule or regulation
applicable to Parent, any of its subsidiaries or any of their properties or
assets, except in the case of clauses (ii) and (iii) above, for violations,
breaches or defaults which will in the aggregate neither have a Parent Material
Adverse Effect nor prevent the consummation of the transactions contemplated
hereby.
SECTION 4.6 Reports and Financial Statements. Parent has previously
furnished the Company with true and complete copies (without exhibits) of its
(i) Annual Reports on Form 10-K for the two
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years ended December 31, 1993, as filed with the SEC, (ii) Quarterly Report on
Form 10-Q for the period ended June 30, 1994, as filed with the SEC, (iii) proxy
statements relating to all meetings of its stockholders (whether annual or
special) since January 1, 1993 and (iv) all other reports, registration
statements and other materials filed by Parent with the SEC since January 1,
1993 (the items described in the preceding clauses (i) through (iv) are
collectively referred to herein as the "Parent SEC Filings"). Except as amended
by subsequent Parent SEC Filings, and except with respect to the Company and any
subsidiaries of the Company (as to which no representation is given), as of
their respective dates, the Parent SEC Filings (including all documents
incorporated by reference therein) did not contain any untrue statement of a
material fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstance under
which they were made, not misleading. The historical consolidated financial
statements of Parent included in the Parent SEC Filings have been prepared in
accordance with generally accepted accounting principles applied on a consistent
basis (except as may be otherwise indicated therein or in the notes thereto) and
fairly present the consolidated financial position of Parent and its
consolidated subsidiaries as at the dates thereof and the results of their
operations and changes in financial position for the periods then ended,
subject, in the case of the historical unaudited interim financial statements,
to normal year-end adjustments.
SECTION 4.7 Absence of Certain Changes or Events. Since June 30, 1994,
Parent has not (i) suffered any occurrences or developments which, individually
or in the aggregate, have had or are reasonably likely to have a Parent Material
Adverse Effect or (ii) learned of occurrences or developments which,
individually or in the aggregate, have had or are reasonably likely to have a
Parent Material Adverse Effect (whether occurring before or after June 30,
1994).
SECTION 4.8 Litigation. Except as disclosed in the Parent SEC Filings, (i)
there is no suit, action, claim or proceeding pending against Parent or any of
its subsidiaries (other than the Company and its subsidiaries), the outcome of
which, in the reasonable judgment of Parent, presents a reasonable possibility
of having a Parent Material Adverse Effect, and, to the best of Parent's
knowledge, there is no other suit, action, claim or proceeding threatened in
writing which, in the reasonable judgment of Parent, presents a reasonable
possibility of having a Parent Material Adverse Effect and (ii) neither Parent
nor any of its subsidiaries (other than the Company and its subsidiaries), nor
any property or assets of any of them, is subject to any order, judgment,
injunction or decree that has had or is reasonably likely to have a Parent
Material Adverse Effect.
SECTION 4.9 Information in Disclosure Documents, Registration Statements,
Etc. None of the information supplied by Parent or Sub for inclusion in (i) the
Registration Statement to be filed with the SEC by Parent on Form S-4 under the
Securities Act for the purpose of registering the shares of Parent Common Stock
to be issued in the Merger (the "Registration Statement") and (ii) the proxy
statement of the Company (the "Proxy Statement") required to be mailed to the
Company's stockholders in connection with the Appraisal Rights Amendment and the
Merger will, in the case of the Proxy Statement or any amendments or supplements
thereto, at the time of the mailing of the Proxy Statement and any amendments or
supplements thereto, and at the time of the Meeting (as hereinafter defined),
or, in the case of the Registration Statement, at the time it becomes effective
and at the Effective Time, 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; provided, however, that no representation is made
by Parent or Sub with respect to statements made in the Registration Statement
or the Proxy Statement based on information supplied by the Company for
inclusion or incorporation by reference in the Registration Statement or the
Proxy Statement. The Registration Statement will comply as to form in all
material respects with the provisions of the Securities Act, and the rules and
regulations promulgated thereunder.
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SECTION 4.10 No Brokers. Parent represents and warrants that, except for its
investment banker, Goldman, Sachs & Co., no broker, finder or investment banker
is entitled to any brokerage, finder's or other fee or commission in connection
with the Merger or the transactions contemplated by this Agreement based upon
arrangements made by or on behalf of Parent or Sub.
SECTION 4.11 Reorganization. To the best knowledge of Parent, neither Parent
nor Sub has knowingly taken any action or failed to take any action, which
action or failure to take action would jeopardize the qualification of the
Merger as a reorganization within the meaning of Section 368(a) of the Code.
SECTION 4.12 Compliance with Law. Parent and each of its subsidiaries (other
than the Company and its subsidiaries) has in the past duly complied, and is
presently complying, with all applicable laws (whether statutory or otherwise),
rules, regulations, orders, ordinances, judgments or decrees of all governmental
authorities (federal, state, local, foreign or otherwise), including, without
limitation, laws relating to human health and safety or pollution or protection
or cleanup of the environment (collectively, "Laws"), except failures to have so
complied or be so complying that would not, individually or in the aggregate,
have a Parent Material Adverse Effect. Neither Parent nor any of its
subsidiaries (other than the Company and its subsidiaries) has received any
notifications of any asserted present or past failure by it, with respect to
their businesses, to comply with any of such Laws, except any notifications
which would not, individually or in the aggregate, have a Parent Material
Adverse Effect.
SECTION 4.13 No Violation of Rights Agreement. None of the execution or
delivery of this Agreement or the transactions contemplated by this Agreement,
including the issuance of Parent Common Stock pursuant to the Merger, will (i)
cause a Distribution Date or Stock Acquisition Date (as those terms are defined
in the Rights Agreement) or (ii) trigger the consequences of, or be prohibited
by, Section 11 or Section 13 of the Rights Agreement.
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company represents and warrants to Parent and Sub as follows:
SECTION 5.1 Organization and Qualification. The Company is a corporation
duly organized, validly existing and in good standing under the laws of the
State of Delaware and has the corporate power to carry on its business as it is
now being conducted or presently proposed to be conducted. The Company is duly
qualified as a foreign corporation to do business, and is in good standing, in
each jurisdiction where the character of its properties owned or held under
lease or the nature of its activities makes such qualification necessary, except
where the failure to be so qualified will not, individually or in the aggregate,
have a material adverse effect on the business, properties, assets, financial
condition or results of operations of the Company and its subsidiaries taken as
a whole (a "Company Material Adverse Effect").
SECTION 5.2 Capitalization. The authorized capital stock of the Company
consists of 40,000,000 shares of Company Common Stock and 1,000,000 shares of
Preferred Stock, par value $1.00 per share ("Company Preferred Stock"). As of
the close of business on September 21, 1994, 38,093,975 shares of Company Common
Stock and no shares of Company Preferred Stock were issued and outstanding. As
of the close of business on September 21, 1994, 347,002 shares of Company Common
Stock were reserved for possible issuance upon exercises of Company Stock
Options granted pursuant to the Stock Option Plan. All shares of Company Common
Stock that are outstanding are, and any shares of Company Common Stock issued
upon exercise of the Company Stock Options will be, when so issued, duly
authorized, validly issued, fully paid and nonassessable and free of preemptive
rights. Except for Company Stock Options outstanding as of the date hereof under
the Stock Option
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Plan, there are not now, and at the Effective Time there will not be, any
options, warrants or other rights, agreements or commitments obligating the
Company to issue, transfer or sell any shares of its capital stock.
SECTION 5.3 Subsidiaries. Except as set forth on Schedule 5.3 hereto, the
Company does not directly or indirectly own any subsidiary. Each subsidiary of
the Company is a corporation duly organized, validly existing and in good
standing under the laws of its jurisdiction of incorporation and has the
corporate power to carry on its business as it is now being conducted or
presently proposed to be conducted. Each subsidiary of the Company is duly
qualified as a foreign corporation to do business, and is in good standing, in
each jurisdiction where the character of its properties owned or held under
lease or the nature of its activities makes such qualification necessary, except
where the failure to be so qualified will not have a Company Material Adverse
Effect. Except as set forth on Schedule 5.3, all the outstanding shares of
capital stock of each subsidiary of the Company are validly issued, fully paid
and nonassessable and free of preemptive rights and are owned by the Company or
by another subsidiary of the Company free and clear of any liens, claims, or
encumbrances ("Liens"). Except as set forth on Schedule 5.3, there are no
existing options, calls or commitments of any character relating to the issued
or unissued capital stock or other securities of any subsidiary of the Company.
SECTION 5.4 Authority Relative to this Agreement. The Company has the
corporate power to enter into this Agreement and to carry out its obligations
hereunder. The execution and delivery of this Agreement and the consummation of
the transactions contemplated hereby have been duly authorized by the Company's
Board of Directors and, except for the approval of the holders of Company Common
Stock at the Meeting, no other corporate proceedings on the part of the Company
are necessary to authorize this Agreement and the transactions contemplated
hereby. This Agreement has been duly and validly executed and delivered by the
Company and (assuming the due and valid execution and delivery by each of Parent
and Sub) is a valid and binding agreement of the Company, enforceable against
the Company in accordance with its terms (except as enforceability may be
limited by bankruptcy, insolvency, moratorium or other similar laws affecting
creditors' rights generally or by the principles governing the availability of
equitable remedies).
SECTION 5.5 Governmental Approvals. Except as referred to herein or in
connection with or in compliance with the provisions and applicable requirements
of the Securities Act, the Exchange Act, the corporation, securities, takeover
and blue sky laws of the various states (including the DGCL), and the rules and
regulations of the NYSE, no filing or registration with, or authorization,
consent or approval of, any public body or authority is necessary for the
consummation by the Company of the Merger or the other transactions contemplated
by this Agreement, other than filings, registrations, authorizations, consents
or approvals that the failure to make or obtain would in the aggregate neither
have a Company Material Adverse Effect nor prevent the consummation or call into
question the validity of the transactions contemplated hereby.
SECTION 5.6 No Violations. Neither the execution and delivery of this
Agreement by the Company, nor the consummation by the Company of the
transactions contemplated hereby, nor compliance by the Company with any of the
provisions hereof, will (i) conflict with or result in any breach of any
provisions of the Certificate of Incorporation or Bylaws of the Company, (ii)
result in a violation or breach of, or constitute (with or without due notice or
lapse of time or both) a default (or give rise to any right of termination,
cancellation or acceleration) under, any of the terms, conditions or provisions
of any note, bond, mortgage, indenture, license, contract, agreement or other
instrument or obligation to which the Company or any of its subsidiaries is a
party or by which any of them or any of their properties or assets may be bound,
or (iii) violate any order, writ, injunction, decree, statute, rule or
regulation applicable to the Company or any of its subsidiaries or any of their
properties or assets, except in the case of clauses (ii) and (iii) above, for
violations, breaches or defaults which will in the aggregate neither have a
Company Material Adverse Effect nor prevent the consummation of the transactions
contemplated hereby.
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SECTION 5.7 Reports and Financial Statements. The Company has previously
furnished Parent with true and complete copies (without exhibits) of its (i)
Annual Reports on Form 10-K for the two years ended December 31, 1993, as filed
with the SEC, (ii) Quarterly Report on Form 10-Q for the period ended June 30,
1994, as filed with the SEC, (iii) proxy statements relating to all meetings of
its stockholders (whether annual or special) since January 1, 1993 and (iv) all
other reports, registration statements and other materials filed by the Company
with the SEC since January 1, 1993 (the items described in the preceding clauses
(i) through (iv) are collectively referred to herein as the "Company SEC
Filings"). Except as amended by subsequent Company SEC Filings, the Company SEC
Filings (including all documents incorporated by reference therein) did not
contain any untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein, in
light of the circumstances under which they were made, not misleading. The
historical consolidated financial statements of the Company included in the
Company SEC Filings have been prepared in accordance with generally accepted
accounting principles applied on a consistent basis (except as may be otherwise
indicated therein or in the notes thereto) and fairly present the consolidated
financial position of the Company and its consolidated subsidiaries as at the
dates thereof and the results of their operations and changes in financial
position for the periods then ended, subject, in the case of the historical
unaudited interim financial statements, to normal year-end adjustments.
SECTION 5.8 Absence of Certain Changes or Events. Since June 30, 1994, the
Company has not (i) suffered any occurrences or developments which, individually
or in the aggregate, have had or are reasonably likely to have a Company
Material Adverse Effect or (ii) learned of occurrences or developments which,
individually or in the aggregate, have had or are reasonably likely to have a
Company Material Adverse Effect (whether occurring before or after June 30,
1994).
SECTION 5.9 Litigation. Except as disclosed in the Company SEC Filings, (i)
there is no suit, action, claim or proceeding pending against the Company or any
of its subsidiaries, the outcome of which, in the reasonable judgment of the
Company, presents a reasonable possibility of having a Company Material Adverse
Effect, and, to the best of the Company's knowledge, there is no other suit,
action, claim or proceeding threatened in writing which, in the reasonable
judgment of the Company, presents a reasonable possibility of having a Company
Material Adverse Effect and (ii) neither the Company nor any of its
subsidiaries, nor any property or assets of any of them, is subject to any
order, judgment, injunction or decree that has had or is reasonably likely to
have a Company Material Adverse Effect.
SECTION 5.10 Compliance with Law. The Company and each of its subsidiaries
has in the past duly complied, and is presently duly complying, with all Laws,
except failures to have so complied or be so complying that would not,
individually or in the aggregate, have a Company Material Adverse Effect.
Neither the Company nor any of its subsidiaries has received any notifications
of any asserted present or past failure by it, with respect to their businesses,
to comply with any of such Laws, except any notifications which would not,
individually or in the aggregate, have a Company Material Adverse Effect.
SECTION 5.11 Information in Disclosure Documents, Registration Statements,
Etc.. None of the information supplied by the Company for inclusion in the Proxy
Statement or the Registration Statement will, in the case of the Proxy Statement
or any amendments or supplements thereto, at the time of the mailing of the
Proxy Statement and any amendments or supplements thereto, and at the time of
the Meeting, or, in the case of the Registration Statement, at the time it
becomes effective and at the Effective Time, 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; provided, however, that
no representation is made by the Company with respect to statements made in the
Proxy Statement or the Registration Statement based on information supplied by
Parent or Sub for inclusion or incorporation by reference in the Proxy Statement
or the Registration Statement. The Proxy Statement will comply as to form in all
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material respects with the provisions of the Exchange Act and the rules and
regulations promulgated thereunder.
SECTION 5.12 Employee Benefit Plans; ERISA.
(a) The Company has heretofore delivered to Parent true and complete copies
(including all amendments) of, each material bonus, incentive compensation,
profit-sharing, pension, retirement, stock purchase, stock option, deferred
compensation, loan program, hospitalization, group insurance, death benefit,
disability, collective bargaining and other employee benefit or compensation
plans, agreements or arrangements, including each "employee benefit plan," as
defined in Section 3(3) of the Employee Retirement Income Security Act of 1974,
as amended ("ERISA"), maintained by the Company or any of its subsidiaries or to
which the Company or any of its subsidiaries is a party. All "employee benefit
plans" as defined in Section 3(3) of ERISA maintained by the Company or any of
its subsidiaries are in compliance in all material respects with the applicable
provisions of ERISA and the Code and, to the Company's best knowledge, all such
plans that are intended to be funded are fully funded except to the extent that
the Parent has knowledge of any underfunding.
(b) Notwithstanding the foregoing, nothing in this Section 5.12 shall be
deemed to apply to any plan, agreement or arrangement sponsored and exclusively
administered by Parent.
SECTION 5.13 Antitakeover Statute Inapplicable. Section 203 of the DGCL as
of the date hereof is, and at all times at or prior to the Effective Time shall
be, inapplicable to this Agreement and the transactions contemplated hereby,
including the Merger.
SECTION 5.14 Company and Special Committee Action; Fairness Opinion. The
Company's Board of Directors (at a meeting duly called and held), pursuant to
the unanimous recommendation adopted at a meeting duly called and held of the
Special Committee, has unanimously approved this Agreement and all of the
transactions contemplated by this Agreement and has determined that the terms of
the Merger are fair, from a financial point of view, to the Company's
stockholders (other than Parent and its affiliates) (the "Public Stockholders").
The Special Committee has received from CS First Boston Corporation an opinion
to the effect that the Exchange Ratio is fair, from a financial point of view,
to the Public Stockholders, and such opinion has not been withdrawn.
SECTION 5.15 Vote Required. The affirmative vote of the holders of
two-thirds of the outstanding shares of Company Common Stock is the only vote of
the holders of any class of the Company's capital stock necessary to approve
this Agreement and the transactions contemplated hereby, including the Appraisal
Rights Amendment and the Merger.
SECTION 5.16 No Brokers. The Company represents and warrants that, except
for the investment banker for the Special Committee, CS First Boston
Corporation, no broker, finder or investment banker is entitled to any
brokerage, finder's or other fee or commission in connection with the Merger or
the transactions contemplated by this Agreement based upon arrangements made by
or on behalf of the Company or the Special Committee.
SECTION 5.17 Reorganization. To the best knowledge of the Company, the
Company has not knowingly taken any action or failed to take any action, which
action or failure to take action would jeopardize the qualification of the
Merger as a reorganization within the meaning of Section 368(a) of the Code.
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ARTICLE VI
REPRESENTATIONS AND WARRANTIES REGARDING SUB
Sub represents and warrants to the Company as follows:
SECTION 6.1 Organization. Sub is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware. Sub has
not engaged in any business since it was incorporated.
SECTION 6.2 Capitalization. The authorized capital stock of Sub consists of
1,000 shares of Common Stock, par value $0.50 per share, 1,000 shares of which
are validly issued and outstanding, fully paid and nonassessable and free of
preemptive rights and are owned by Parent free and clear of all Liens.
SECTION 6.3 Authority Relative to this Agreement. Sub has the corporate
power to enter into this Agreement and to carry out its obligations hereunder.
The execution and delivery of this Agreement and the consummation of the
transactions contemplated hereby have been duly authorized by its Board of
Directors and sole stockholder, and no other corporate proceedings on the part
of Sub are necessary to authorize this Agreement and the transactions
contemplated hereby.
ARTICLE VII
CONDUCT OF BUSINESS PENDING THE MERGER
SECTION 7.1 Conduct of Business by the Company Pending the Merger. Prior to
the Effective Time, unless Parent shall otherwise agree in writing, or except as
otherwise contemplated by this Agreement:
(a) the respective businesses of the Company and its subsidiaries shall
be conducted only in the ordinary and usual course, consistent with past
practices;
(b) the Company shall not (i) sell or pledge or agree to sell or pledge
any stock owned by it in any of its subsidiaries, (ii) amend its Certificate
of Incorporation (other than the Appraisal Rights Amendment) or Bylaws,
(iii) split, combine or reclassify its outstanding capital stock or declare,
set aside or pay any dividend or distribution payable in cash, stock or
property, or (iv) directly or indirectly redeem, purchase or otherwise
acquire or agree to redeem, purchase or otherwise acquire any shares of its
capital stock or shares of the capital stock of any of its subsidiaries;
(c) neither the Company nor any of its subsidiaries shall (i) issue or
agree to issue any additional shares of, or rights of any kind to acquire
any shares of, its capital stock of any class (whether through the issuance
or granting of options or otherwise) other than issuances pursuant to the
exercise of Company Stock Options outstanding on the date hereof and
issuances pursuant to existing employee benefit plans or arrangements in a
manner consistent with past practice, (ii) acquire, dispose of, transfer,
lease, pledge or encumber any fixed or other material assets other than in
the ordinary and usual course of business, consistent with past practices,
(iii) incur, assume or prepay any material indebtedness or any other
material liabilities or enter into any other material transaction other than
in the ordinary and usual course of business, consistent with past
practices, (iv) make any capital expenditures, or authorize or enter into
any contract or commitment therefor, materially in excess of amounts
presently projected therefor and as previously disclosed to Parent, or (v)
enter into any contract, agreement, commitment or arrangement with respect
to any of the foregoing;
(d) the Company shall use its best efforts to preserve intact the
business organization of the Company and its subsidiaries, to keep available
the services of its and their present officers and key
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employees, and to preserve the goodwill of those having business
relationships with it and its subsidiaries; and
(e) neither the Company nor any of its subsidiaries will (i) enter into
any new, or amend any existing, employment agreement with any officer or
employee, (ii) adopt or amend any employee benefit plan, trust, fund or
other arrangement for the benefit of any director, officer or employee or
(iii) increase in any manner the compensation or fringe benefits of any
director, officer or employee (except for normal increases in the ordinary
and usual course of business, consistent with past practices); and
(f) neither the Company nor any of its subsidiaries shall knowingly take
any action which would jeopardize the qualifications of the Merger as a
reorganization within the meaning of Section 368(a) of the Code.
SECTION 7.2 Conduct of Business by Parent Pending the Merger. Prior to the
Effective Time, unless the Company shall otherwise agree in writing or as
otherwise contemplated by this Agreement:
(a) Parent shall not split, combine or reclassify the Parent Common
Stock or declare, set aside or pay any dividend or distribution payable in
cash, stock or property in respect of the Parent Common Stock (except for
regular quarterly cash dividends consistent with past practices);
(b) Parent shall not issue or agree to issue any additional shares of
Parent Common Stock (or any options or rights of any kind to acquire shares
of Parent Common Stock upon the exercise thereof (collectively, "Options"))
other than (i) the issuance of shares of Parent Common Stock upon exercise
of Options outstanding on the date of this Agreement, (ii) the issuance of
Options pursuant to existing employee benefit plans or arrangements in a
manner consistent with past practice, or (iii) the issuance of shares of
Parent Common Stock for a consideration equal to at least the then-existing
market value of such Parent Common Stock (or, in the case of the issuance of
shares of Parent Common Stock upon the exercise of any Option, for a
consideration (including the consideration, if any, received for the
issuance of the Option) equal to at least the market value, as of the date
of issuance of the Option, of the shares of Parent Common Stock to be issued
upon exercise thereof); provided, however, that any non-cash consideration
shall be valued in good faith by the Board of Directors of Parent; and
(c) neither the Parent nor any of its subsidiaries shall knowingly take
any action which would jeopardize the qualifications of the Merger as a
reorganization within the meaning of Section 368(a) of the Code.
SECTION 7.3 Conduct of Business of Sub. During the period from the date of
this Agreement to the Effective Time, Sub shall not engage in any activities of
any nature except as provided in or contemplated by this Agreement.
ARTICLE VIII
ADDITIONAL AGREEMENTS
SECTION 8.1 Access and Information. (a) From and after the date hereof,
Parent and the Company shall afford to the other and to the other's accountants,
counsel and other representatives full access during normal business hours
throughout the period prior to the Effective Time to all of its officers,
properties, books, contracts, commitments and records and, during such period,
each shall furnish promptly to the other (i) a copy of each report, schedule and
other document filed or received by it pursuant to the requirements of federal
or state securities laws, and (ii) all other information concerning its
business, properties and personnel as such other party may reasonably request;
provided, however, that no investigation pursuant to this Section 8.1 shall
affect, add to or subtract from any
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representations or warranties made herein or the conditions to the obligations
of the respective parties to consummate the Merger.
(b) Except as may be required by applicable law or legal process, and except
for such disclosure to those of its directors, officers, employees and
representatives as may be appropriate or required in connection with the
transactions contemplated hereby, each party hereto shall hold in confidence all
nonpublic information obtained from another party hereto (including work papers
and other materials derived therefrom) as a result of this Agreement or in
connection with the transactions contemplated hereby (whether so obtained before
or after the execution hereof) until such time as the party providing such
information consents to its disclosure or such information becomes stale or
otherwise publicly available. Promptly following any termination of this
Agreement, each of the parties hereto agrees to cause its respective directors,
officers, employees and representatives to destroy or return to the providing
party all such nonpublic information (including work papers and other materials
derived therefrom), and all copies thereof.
SECTION 8.2 Registration Statement/Proxy Statement. (a) Parent shall
promptly prepare and file with the SEC the Registration Statement and shall use
all reasonable efforts to have the Registration Statement declared effective by
the SEC as soon as practicable. Parent shall also use its best efforts to take
any action required to be taken under state blue sky or securities laws in
connection with the issuance of shares of Parent Common Stock pursuant to the
Merger. The Company shall furnish Parent with all information concerning the
Company and the holders of its capital stock as Parent may reasonably request in
connection with the Registration Statement and such issuance of shares of Parent
Common Stock.
(b) The Company shall promptly prepare and file with the SEC the Proxy
Statement. Parent and Sub shall furnish the Company with all information
concerning Parent and Sub as the Company may reasonably request in connection
with the Proxy Statement. Promptly after the Registration Statement becomes
effective, the Company shall mail the Proxy Statement to all record holders of
Company Common Stock who are holders on the record date established in respect
of the Meeting.
SECTION 8.3 Stockholders' Meeting. The Company shall, in accordance with
applicable law and its Certificate of Incorporation and Bylaws, promptly and
duly call, give notice of, convene and hold as soon as practicable following the
date upon which the Registration Statement becomes effective, a special meeting
of the holders of Company Common Stock (the "Meeting") for the purpose of voting
to approve and adopt this Agreement. The Board of Directors of the Company,
subject to their fiduciary duties under Delaware law as advised by counsel, will
recommend that holders of Company Common Stock approve and adopt the Appraisal
Rights Amendment and this Agreement at the Meeting. The Company shall include in
the Proxy Statement such recommendation and take all reasonable lawful action to
solicit such approval. At the Meeting, Parent shall vote or cause to be voted in
favor of approval and adoption of the Appraisal Rights Amendment and this
Agreement all shares of Company Common Stock as to which it, Sub or its other
subsidiaries hold proxies or are otherwise entitled to vote or cause to be
voted.
SECTION 8.4 Compliance with the Securities Act. (a) Prior to the Effective
Time, the Company shall cause to be delivered to Parent a letter (satisfactory
to counsel for Parent) identifying all persons who the Company believes are, or
will be, at the time of the Meeting, "affiliates" of the Company as that term is
used in paragraphs (c) and (d) of Rule 145 under the Securities Act (the
"Affiliates").
(b) The Company shall use its best efforts to obtain a written agreement
from each person who is identified as a possible Affiliate in the letter
referred to in Section 8.4(a) above, in the form previously approved by the
parties, that he or she will not offer to sell, sell or otherwise dispose of any
shares of Parent Common Stock issued to him or her pursuant to the Merger,
except pursuant to an effective registration statement or in compliance with
Rule 145 or another exemption from the registration requirements of the
Securities Act. The Company shall deliver all such written agreements to Parent
at
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or prior to the Effective Time. The Company agrees that, with respect to any
Affiliate for whom such a letter is not delivered to Parent in timely fashion,
and subject to the requirements of applicable law, Parent reserves the right to
and may place an appropriate restrictive legend on the certificates representing
shares of Parent Common Stock to be issued to such Affiliate pursuant to the
Merger.
SECTION 8.5 Stock Exchange Listing. Parent shall use its best efforts to
list on the NYSE, upon official notice of issuance, the shares of Parent Common
Stock to be issued pursuant to the Merger.
SECTION 8.6 Director and Officer Indemnification. Parent agrees that all
rights to indemnification, advancement of litigation expenses and limitation of
personal liability existing in favor of the directors and officers of the
Company (the "Indemnified Parties") under the provisions existing on the date
hereof in the Company's Certificate of Incorporation or Bylaws shall, with
respect to any matter existing or occurring at or prior to the Effective Time
(including the transactions contemplated by this Agreement), survive the
Effective Time, and that, as of the Effective Time, Parent shall assume all
obligations of the Company in respect thereof as to any claim or claims asserted
prior to or within a six-year period immediately after the Effective Time.
SECTION 8.7 Fees and Expenses. Except as otherwise provided in Section
3.1(e), if the Merger is consummated, all costs and expenses incurred in
connection with this Agreement and the transactions contemplated hereby will be
paid by Parent. If the Merger is not consummated, all costs and expenses
incurred in connection with this Agreement and the transactions contemplated
hereby shall be paid by the party incurring such expenses, except that the
aggregate expenses incurred in connection with printing the Registration
Statement and the Proxy Statement and filing the Registration Statement and the
Proxy Statement with the SEC shall be shared equally by Parent and the Company.
SECTION 8.8 Publicity. Parent and Sub, on the one hand, and the Company, on
the other hand, agree that they will consult with each other concerning any
proposed press release or public announcement pertaining to the Merger and shall
use their best efforts to agree upon the text of any such press release or
public announcement prior to the publication of such press release or the making
of such public announcement, unless such consultation or agreement is not
practicable in light of the timing of any disclosure requirements imposed by
applicable law or any listing agreement with the NYSE.
SECTION 8.9 Additional Agreements. Subject to the terms and conditions
herein provided, each of the parties hereto agrees to use all reasonable efforts
to take, or cause to be taken, all actions and to do, or cause to be done, all
things necessary, proper or advisable (including under applicable laws and
regulations) to consummate the Merger as soon as is reasonably possible and
otherwise to consummate and make effective the transactions contemplated by this
Agreement, including using all reasonable efforts to obtain all necessary
waivers, consents and approvals and to effect all necessary registrations and
filings. In case at any time after the Effective Time any further action is
necessary or desirable to carry out the purposes of this Agreement, the proper
officers and/or directors of Parent, Sub and the Company shall take all such
necessary action.
ARTICLE IX
CONDITIONS PRECEDENT
SECTION 9.1 Conditions to Each Party's Obligation to Effect the Merger. The
respective obligations of each party to effect the Merger shall be subject to
the fulfillment at or prior to the Closing of the following conditions:
(a)(i) the Registration Statement shall have become effective in
accordance with the provisions of the Securities Act and (ii) no stop order
suspending the effectiveness of the Registration Statement shall have been
issued by the SEC and remain in effect;
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(b) this Agreement and the transactions contemplated hereby (including
the Appraisal Rights Amendment) shall have been approved and adopted by the
requisite votes of the holders of Company Common Stock;
(c) the Parent Common Stock issuable in the Merger shall have been
authorized for listing on the NYSE, upon official notice of issuance;
(d) no preliminary or permanent injunction or other order by any federal
or state court in the United States which prohibits the consummation of the
Merger shall have been issued and remain in effect;
(e) Parent shall have received all state securities or blue sky permits
and other authorizations necessary to issue shares of Parent Common Stock
pursuant to the Merger; and
(f) the Appraisal Rights Amendment shall have been filed and become
effective pursuant to the DGCL.
SECTION 9.2 Conditions to Obligation of the Company to Effect the
Merger. The obligation of the Company to effect the Merger shall be subject to
the fulfillment at or prior to the Closing of the additional following
conditions:
(a) Parent and Sub shall have performed in all material respects each of
their obligations contained in this Agreement required to be performed at or
prior to the Effective Time;
(b) except as contemplated or permitted by this Agreement, each of the
representations and warranties of Parent and Sub contained in this Agreement
shall be true in all material respects when made and at and as of the date
of the Effective Time as if made at and as of such date, unless stated in
this Agreement to be true on and as of another date, in which case such
representation and warranty shall have been true in all material respects on
and as of such other date;
(c) the Company shall have received a certificate of Parent, signed by
the President and Chief Executive Officer or a Vice President of Parent, to
the effect that the conditions set forth in Sections 9.2(a) and 9.2(b) above
have been satisfied and shall have received a certificate of Parent, signed
by the President and Chief Executive Officer or a Vice President of Parent,
or other appropriate evidence, to the effect that the conditions set forth
in Sections 9.1(a) and 9.1(c) above have been satisfied;
(d) the Company shall have received an opinion of Cleary, Gottlieb,
Steen & Hamilton, special counsel to Parent, in form and substance
reasonably satisfactory to the Company, dated as of the date of the
Effective Time, substantially to the effect that, on the basis of facts,
representations and assumptions set forth in such opinion (it being
understood that such opinion may require and rely upon representations
contained in certificates of officers of the Company, Parent, their
respective subsidiaries and others), the Merger will be treated for federal
income tax purposes as a reorganization within the meaning of Section 368(a)
of the Code and that accordingly:
(i) no gain or loss will be recognized by the Company, Parent or Sub
as a result of the Merger;
(ii) no gain or loss will be recognized by the stockholders of the
Company upon the conversion of their shares of Company Common Stock into
shares of Parent Common Stock pursuant to the terms of the Merger (except
to the extent cash is received in lieu of fractional shares);
(iii) the tax basis of the shares of Parent Common Stock received by
the stockholders of the Company upon the conversion of Company Common
Stock pursuant to the Merger will be the same as the basis of the shares
of Company Common Stock converted (less any portion of such basis
allocable to any fractional interest in any share of Parent Common
Stock);
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(iv) the holding period of the Parent Common Stock into which shares
of Company Common Stock are converted will include the period that such
shares of Company Common Stock were held by the holder, provided such
shares were held as a capital asset by such holder at the Effective Time;
(v) the payment of cash to a holder of Company Common Stock in lieu
of a fractional share of Parent Common Stock will be treated for federal
income tax purposes as if the fractional share was distributed as part of
the Merger and then was redeemed by Parent. This cash payment will be
treated as having been received as a distribution in full payment for the
stock redeemed. Gain or loss will be realized and recognized by the
Company stockholder receiving cash in lieu of a fractional share of
Parent Common Stock equal to the difference between the cash received and
the basis of the fractional share interest; and
(vi) gain or loss recognized by a holder of Company Common Stock upon
receipt of cash in exchange for the holder's fractional share interest or
upon exercise of dissenters' rights, exclusive of interest, will be
capital gain or loss, provided the shares of Company Common Stock were
held as capital assets on the date of the Merger; and
(e) The Company shall have received an opinion of Cleary, Gottlieb,
Steen & Hamilton, special counsel to Parent, in form and substance
reasonably satisfactory to the Company, dated as of the Effective Time, that
the shares of Parent Common Stock issued to the holders of Company Common
Stock upon conversion of the Company Common Stock, as provided in Section
3.1(b), have been duly authorized and, when delivered by the Exchange Agent
pursuant to Section 3.2, will be validly issued, fully paid and
nonassessable.
SECTION 9.3 Conditions to Obligations of Parent and Sub to Effect the
Merger. The obligations of Parent and Sub to effect the Merger shall be subject
to the fulfillment at or prior to the Closing of the additional following
conditions:
(a) the Company shall have performed in all material respects its
obligations contained in this Agreement required to be performed at or prior
to the Effective Time;
(b) except as contemplated or permitted by this Agreement, each of the
representations and warranties of the Company contained in this Agreement
shall be true in all material respects when made and at and as of the date
of the Effective Time as if made at and as of such date, unless stated in
this Agreement to be true on and as of another date, in which case such
representation and warranty shall have been true in all material respects on
and as of such other date;
(c) Parent and Sub shall have received a certificate of the Company,
signed by the President or Chief Executive Officer or a Vice President of
Parent, to the effect that the conditions set forth in Sections 9.3(a) and
(b) above have been satisfied; and
(d) The Company shall have obtained the written agreement described in
Section 8.4(b) from each person who is identified as a possible "Affiliate"
in the letter referred to in Section 8.4(a), and shall have delivered copies
of all such agreements to Parent; and
(e) The Company's Board of Directors or Special Committee shall not have
withdrawn or modified its recommendation with respect to approval and
adoption of this Agreement and the transactions contemplated by it.
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ARTICLE X
TERMINATION, AMENDMENT AND WAIVER
SECTION 10.1 Termination. This Agreement may be terminated at any time prior
to the Effective Time, whether before or after approval by the stockholders of
the Company:
(a) by mutual consent of the Board of Directors of Parent and the Board
of Directors of the Company;
(b) by either Parent or the Company, if the Merger shall not have been
consummated on or before March 1, 1995; provided, however, that the party
seeking to terminate this Agreement is not otherwise in material breach of
its obligations under this Agreement;
(c) by the Company, if either Parent or Sub shall have failed to comply
in any material respect with any of their respective material covenants or
agreements contained in this Agreement, provided, however, that if such
failure is curable, notice of such failure shall have been given by the
Company to Parent, and Parent shall not have cured (or caused Sub to cure)
such failure within 30 days of notice thereof;
(d) by Parent, if the Company shall have failed to comply in any
material respect with any of its material covenants or agreements contained
in this Agreement, provided, however, that if such failure is curable,
notice of such failure shall have been given by Parent to the Company, and
the Company shall not have cured such failure within 30 days of notice
thereof; and
(e) by the Special Committee of the Company, at any time prior to the
Closing, if CS First Boston Corporation has withdrawn its opinion referred
to in Section 5.14 hereof.
SECTION 10.2 Effect of Termination. In the event of termination of this
Agreement by either Parent or the Company, as provided above, this Agreement
shall forthwith become void and, except in the case of a termination resulting
from a willful breach of this Agreement by any party hereto, there shall be no
liability on the part of either the Company, Parent or Sub or their respective
officers or directors; provided, however, that Sections 8.1(b) and 8.7 shall
survive any termination of this Agreement.
SECTION 10.3 Amendment. This Agreement may be amended by the parties hereto,
by or pursuant to action taken by their respective Boards of Directors, at any
time before or after approval hereof by the stockholders of the Company, but,
after any such approval, no amendment shall be made which changes the Exchange
Ratio or which in any way materially adversely affects the rights of such
stockholders, without the further approval of such stockholders. This Agreement
may not be amended except by an instrument in writing specifically referring to
this Section 10.3 and signed on behalf of each of the parties hereto.
SECTION 10.4 Waiver. At any time prior to the Effective Time, Parent and
Sub, on the one hand, and the Company, on the other hand, may (i) extend the
time for the performance of any of the obligations or other acts of the other,
(ii) waive any inaccuracies in the representations and warranties of the other
contained herein or in any documents delivered pursuant hereto and (iii) waive
compliance by the other with any of the agreements or conditions contained
herein which may legally be waived. Any agreement on the part of a party hereto
to any such extension or waiver shall be valid only if set forth in an
instrument in writing specifically referring to this Section 10.4 and signed on
behalf of such party.
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<PAGE>
ARTICLE XI
GENERAL PROVISIONS
SECTION 11.1 Non-Survival of Representations, Warranties and Agreements. All
representations, warranties, covenants and agreements contained in this
Agreement (or in any instrument delivered pursuant to this Agreement) shall not
survive beyond the Effective Time, except for the agreements contained in
Articles II, III (other than Section 3.6) and XI (other than Sections 11.2 and
11.5) and in Sections 8.6, 8.7 and 8.9.
SECTION 11.2 Notices. All notices or other communications under this
Agreement shall be in writing and shall be delivered personally (including by
courier or overnight carrier), telexed, sent by facsimile transmission or sent
by certified or registered mail, postage prepaid, at the addresses set forth
below. Any such notice shall be deemed given when so delivered personally, or,
if telexed, sent by facsimile transmission or mailed, upon receipt.
If to Parent or Sub:
Ogden Corporation
Two Pennsylvania Plaza
New York, NY 10121
Attention: General Counsel
Telecopy No.: (212) 868-5714
With a copy to:
Cleary, Gottlieb, Steen & Hamilton
One Liberty Plaza
New York, New York 10006
Attention: William F. Gorin
Telecopy No.: (212) 225-3999
If to the Company:
Ogden Projects, Inc.
40 Lane Road
Fairfield, NJ 07007
Attention: General Counsel
Telecopy No.: (201) 882-7131
With a copy to:
Rogers & Wells
200 Park Avenue
New York, NY 10166
Attention: John A. Healy
Telecopy No.: (212) 878-8375
or to such other address as any party may have furnished to the other parties in
writing in accordance with this Section 11.2.
SECTION 11.3 Subsidiaries. When a reference is made in this Agreement to
subsidiaries of Parent or the Company, the word "subsidiaries" means any
corporations more than 50% of whose outstanding voting securities are directly
or indirectly owned by Parent or the Company, as the case may be; provided,
however, that, for the purposes of this Agreement (other than in Section 4.1 and
the
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<PAGE>
definition of the term "Parent Material Adverse Effect"), neither the Company
nor any subsidiary of the Company shall be deemed a "subsidiary" of Parent prior
to the Effective Time.
SECTION 11.4 Interpretation. The headings contained in this Agreement are
for reference purposes only and shall not affect in any way the construction or
interpretation of any provision of this Agreement. References to Sections shall
be deemed to be references to Sections of this Agreement unless the context
otherwise requires.
SECTION 11.5 Company and Board Action. Any action, approval, consent or
waiver of the Company or the Board of Directors of the Company required or
permitted by this Agreement prior to the Effective Time shall be deemed to have
been taken or given only if such action, approval, consent or waiver shall have
received the approval of, or been taken pursuant to the authorization of, the
Special Committee.
SECTION 11.6 Miscellaneous. This Agreement (including the documents and
instruments referred to herein) (i) constitutes the entire agreement and
supersedes all other prior agreements and understandings, both written and oral,
among the parties, or any of them, with respect to the subject matter hereof;
(b) except as provided in Section 3.2, the last sentence of Section 3.4 and
Section 8.6, is not intended to confer upon any person not a party hereto any
rights or remedies hereunder; (c) shall not be assigned by operation of law or
otherwise, except that Sub shall have the right to assign to Parent or any
direct or indirect wholly-owned subsidiary of Parent any and all rights and
obligations of Sub under this Agreement; and (d) shall be governed in all
respects, including validity, interpretation and effect, by the laws of the
State of Delaware (without giving effect to the provisions thereof relating to
conflicts of law). This Agreement may be executed in two or more counterparts
which together shall constitute a single agreement.
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.
OGDEN CORPORATION
By /s/ LYNDE COIT
...................................
Title: Senior Vice President &
General Counsel
OPI ACQUISITION CORP.
By /s/ LYNDE COIT
...................................
Title: Senior Vice President
OGDEN PROJECTS, INC.
By /s/ SCOTT G. MACKIN
...................................
Title: President & Chief Operating
Officer
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<PAGE>
EXHIBIT B
FORM OF
CERTIFICATE OF AMENDMENT
OF
THIRD RESTATED CERTIFICATE OF INCORPORATION
OF
OGDEN PROJECTS, INC.
Under Section 242 of the General Corporation Law of the State of Delaware
The undersigned, a corporation organized and existing under the General
Corporation Law of Delaware (the "Corporation"), pursuant to the provisions of
Section 242 of the Delaware General Corporation Law, hereby certifies that:
FIRST: The name of the Corporation is OGDEN PROJECTS, INC. The name under
which the Corporation was formed is Ogden Projects, Inc.
SECOND: The Third Restated Certificate of Incorporation of this Corporation
is hereby amended as follows:
1. to provide appraisal rights, pursuant to Section 262 of the Delaware
General Corporation Law, to holders of common stock, par value $.50 per share of
the Corporation. Part III of Section 4 of the Third Restated Certificate of
Incorporation shall be revised to add the following Paragraph 3.04, to read in
its entirety as follows:
"3.04: In any merger of the corporation prior to June 30, 1995 with Ogden
Corporation or any direct or indirect wholly-owned subsidiary of Ogden
Corporation, each holder of shares of Common Stock of the Corporation shall
be entitled, upon compliance with the terms and conditions of Section 262 of
the General Corporation Law of the State of Delaware as then in effect, to
appraisal rights as provided in such Section 262, notwithstanding any
statutory limitation on the availability of such rights that would be
applicable in the absence of this Section. For purposes of paragraph (d)(1)
of said Section 262, any notice to stockholders that otherwise complies with
such paragraph, and any written demand furnished by a stockholder pursuant
to such paragraph, shall be effective even if delivered prior to the
effectiveness of this Paragraph of the Corporation's Certificate of
Incorporation; provided that any such notice given to stockholders specifies
that the proposed merger referred to therein will not become effective
unless this Paragraph shall theretofore have become effective."
THIRD: This Amendment to the Third Restated Certificate of Incorporation has
been duly adopted in accordance with the provisions of Section 242 of the
Delaware General Corporation Law.
IN WITNESS WHEREOF, the Corporation has caused its corporate seal to be
affixed hereto and this instrument to be signed in its name by its Vice
President and attested to by its Secretary this day of , 1994.
ATTEST: OGDEN PROJECTS, INC.
By:............................... By:.............................
Name: Name:
Title: Title:
(CORPORATE SEAL)
B-1
<PAGE>
EXHIBIT C
DELAWARE GENERAL CORPORATION LAW SECTION 262
APPRAISAL RIGHTS.--(a) Any stockholder of a corporation of this State who holds
shares of stock on the date of the making of a demand pursuant to subsection (d)
of this section with respect to such shares, who continuously holds such shares
through the effective date of the merger or consolidation, who has otherwise
complied with subsection (d) of this section and who has neither voted in favor
of the merger or consolidation nor consented thereto in writing pursuant to
Sec.228 of this title shall be entitled to an appraisal by the Court of Chancery
of the fair value of his shares of stock under the circumstances described in
subsections (b) and (c) of this section. As used in this section, the word
"stockholder" means a holder of record of stock in a stock corporation and also
a member of record of a nonstock corporation; the words "stock" and "share" mean
and include what is ordinarily meant by those words and also membership or
membership interest of a member of a nonstock corporation; and the words
"depository receipt" mean a receipt or other instrument issued by a depository
representing an interest in one or more shares, or fractions thereof, solely of
stock of a corporation, which stock is deposited with the depository.
(b) Appraisal rights shall be available for the shares of any class or
series of stock of a constituent corporation in a merger or consolidation to be
effected pursuant to Sec.251, 252, 254, 257, 258, 263 or 264 of this title:
(1) Provided, however, that no appraisal rights under this section shall
be available for the shares of any class or series of stock, which stock, or
depository receipts in respect thereof, at the record date fixed to
determine the stockholders entitled to receive notice of and to vote at the
meeting of stockholders to act upon the agreement of merger or
consolidation, were either (i) listed on a national securities exchange or
designated as a national market system security on an interdealer quotation
system by the National Association of Securities Dealers, Inc. or (ii) held
of record by more than 2,000 holders; and further provided that no appraisal
rights shall be available for any shares of stock of the constituent
corporation surviving a merger if the merger did not require for its
approval the vote of the holders of the surviving corporation as provided in
subsection (f) of Sec.251 of this title.
(2) Notwithstanding paragraph (1) of this subsection, appraisal rights
under this section shall be available for the shares of any class or series
of stock of a constituent corporation if the holders thereof are required by
the terms of an agreement of merger or consolidation pursuant to
Sec. Sec.251, 252, 254, 257, 258, 263 and 264 of this title to accept for
such stock anything except:
a. Shares of stock of the corporation surviving or resulting from
such merger or consolidation, or depository receipts in respect thereof;
b. Shares of stock of any other corporation, or depository receipts
in respect thereof, which shares of stock or depository receipts at the
effective date of the merger or consolidation will be either listed on a
national securities exchange or designated as a national market system
security on an interdealer quotation system by the National Association
of Securities Dealers, Inc. or held of record by more than 2,000 holders;
c. Cash in lieu of fractional shares or fractional depository
receipts described in the foregoing subparagraphs a. and b. of this
paragraph; or
d. Any combination of the shares of stock, depository receipts and
cash in lieu of fractional shares or fractional depository receipts
described in the foregoing subparagraphs a., b. and c. of this paragraph.
(3) In the event all of the stock of a subsidiary Delaware corporation
party to a merger effected under Sec.253 of this title is not owned by the
parent corporation immediately prior to the merger, appraisal rights shall
be available for the shares of the subsidiary Delaware corporation.
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<PAGE>
(c) Any corporation may provide in its certificate of incorporation that
appraisal rights under this section shall be available for the shares of any
class or series of its stock as a result of an amendment to its certificate of
incorporation, any merger or consolidation in which the corporation is a
constituent corporation or the sale of all or substantially all of the assets of
the corporation. If the certificate of incorporation contains such a provision,
the procedures of this section, including those set forth in subsections (d) and
(e) of this section, shall apply as nearly as is practicable.
(d) Appraisal rights shall be perfected as follows:
(1) If a proposed merger or consolidation for which appraisal rights are
provided under this section is to be submitted for approval at a meeting of
stockholders, the corporation, not less than 20 days prior to the meeting,
shall notify each of its stockholders who was such on the record date for
such meeting with respect to shares for which appraisal rights are available
pursuant to subsections (b) or (c) hereof that appraisal rights are
available for any or all of the shares of the constituent corporations, and
shall include in such notice a copy of this section. Each stockholder
electing to demand the appraisal of his shares shall deliver to the
corporation, before the taking of the vote on the merger or consolidation, a
written demand for appraisal of his shares. Such demand will be sufficient
if it reasonably informs the corporation of the identity of the stockholder
and that the stockholder intends thereby to demand the appraisal of his
shares. A proxy or vote against the merger or consolidation shall not
constitute such a demand. A stockholder electing to take such action must do
so by a separate written demand as herein provided. Within 10 days after the
effective date of such merger or consolidation, the surviving or resulting
corporation shall notify each stockholder of each constituent corporation
who has complied with this subsection and has not voted in favor of or
consented to the merger or consolidation of the date that the merger or
consolidation has become effective; or
(2) If the merger or consolidation was approved pursuant to Sec.228 or
253 of this title, the surviving or resulting corporation, either before the
effective date of the merger or consolidation or within 10 days thereafter,
shall notify each of the stockholders entitled to appraisal rights of the
effective date of the merger or consolidation and that appraisal rights are
available for any or all of the shares of the constituent corporation, and
shall include in such notice a copy of this section. The notice shall be
sent by certified or registered mail, return receipt requested, addressed to
the stockholder at his address as it appears on the records of the
corporation. Any stockholder entitled to appraisal rights may, within 20
days after the date of mailing of the notice, demand in writing from the
surviving or resulting corporation the appraisal of his shares. Such demand
will be sufficient if it reasonably informs the corporation of the identity
of the stockholder and that the stockholder intends thereby to demand the
appraisal of his shares.
(e) Within 120 days after the effective date of the merger or consolidation,
the surviving or resulting corporation or any stockholder who has complied with
subsections (a) and (d) hereof and who is otherwise entitled to appraisal
rights, may file a petition in the Court of Chancery demanding a determination
of the value of the stock of such stockholders. Notwithstanding the foregoing,
at any time within 60 days after the effective date of the merger or
consolidation, any stockholder shall have the right to withdraw his demand for
appraisal and to accept the terms offered upon the merger or consolidation.
Within 120 days after the effective date of the merger or consolidation, any
stockholder who has complied with the requirements of subsections (a) and (d)
hereof, upon written request, shall be entitled to receive from the corporation
surviving the merger or resulting from the consolidation a statement setting
forth the aggregate number of shares not voted in favor of the merger or
consolidation and with respect to which demands for appraisal have been received
and the aggregate number of holders of such shares. Such written statement shall
be mailed to the stockholder within 10 days after his written request for such a
statement is received by the surviving or resulting corporation or within 10
days after expiration of the period for delivery of demands for appraisal under
subsection (d) hereof, whichever is later.
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<PAGE>
(f) Upon the filing of any such petition by a stockholder, service of a copy
thereof shall be made upon the surviving or resulting corporation, which shall
within 20 days after such service file in the office of the Register in Chancery
in which the petition was filed a duly verified list containing the names and
addresses of all stockholders who have demanded payment for their shares and
with whom agreements as to the value of their shares have not been reached by
the surviving or resulting corporation. If the petition shall be filed by the
surviving or resulting corporation, the petition shall be accompanied by such a
duly verified list. The Register in Chancery, if so ordered by the Court, shall
give notice of the time and place fixed for the hearing of such petition by
registered or certified mail to the surviving or resulting corporation and to
the stockholders shown on the list at the addresses therein stated. Such notice
shall also be given by one or more publications at least one week before the day
of the hearing, in a newspaper of general circulation published in the City of
Wilmington, Delaware or such publication as the Court deems advisable. The forms
of the notices by mail and by publication shall be approved by the Court, and
the costs thereof shall be borne by the surviving or resulting corporation.
(g) At the hearing on such petition, the Court shall determine the
stockholders who have complied with this section and who have become entitled to
appraisal rights. The Court may require the stockholders who have demanded an
appraisal for their shares and who hold stock represented by certificates to
submit their certificates of stock to the Register in Chancery for notation
thereon of the pendency of the appraisal proceedings; and if any stockholder
fails to comply with such direction, the Court may dismiss the proceedings as to
such stockholder.
(h) After determining the stockholders entitled to an appraisal, the Court
shall appraise the shares, determining their fair value exclusive of any element
of value arising from the accomplishment or expectation of the merger or
consolidation, together with a fair rate of interest, if any, to be paid upon
the amount determined to be the fair value. In determining such fair value, the
Court shall take into account all relevant factors. In determining the fair rate
of interest, the Court may consider all relevant factors, including the rate of
interest which the surviving or resulting corporation would have had to pay to
borrow money during the pendency of the proceeding. Upon application by the
surviving or resulting corporation or by any stockholder entitled to participate
in the appraisal proceeding, the Court may, in its discretion, permit discovery
or other pretrial proceedings and may proceed to trial upon the appraisal prior
to the final determination of the stockholder entitled to an appraisal. Any
stockholder whose name appears on the list filed by the surviving or resulting
corporation pursuant to subsection (f) of this section and who has submitted his
certificates of stock to the Register in Chancery, if such is required, may
participate fully in all proceedings until it is finally determined that he is
not entitled to appraisal rights under this section.
(i) The Court shall direct the payment of the fair value of the shares,
together with interest, if any, by the surviving or resulting corporation to the
stockholders entitled thereto. Interest may be simple or compound, as the Court
may direct. Payment shall be so made to each such stockholder, in the case of
holders of uncertificated stock forthwith, and the case of holders of shares
represented by certificates upon the surrender to the corporation of the
certificates representing such stock. The Court's decree may be enforced as
other decrees in the Court of Chancery may be enforced, whether such surviving
or resulting corporation be a corporation of this State or of any state.
(j) The costs of the proceeding may be determined by the Court and taxed
upon the parties as the Court deems equitable in the circumstances. Upon
application of a stockholder, the Court may order all or a portion of the
expenses incurred by any stockholder in connection with the appraisal
proceeding, including, without limitation, reasonable attorney's fees and the
fees and expenses of experts, to be charged pro rata against the value of all
the shares entitled to an appraisal.
(k) From and after the effective date of the merger or consolidation, no
stockholder who has demanded his appraisal rights as provided in subsection (d)
of this section shall be entitled to vote such stock for any purpose or to
receive payment of dividends or other distributions on the stock (except
dividends or other distributions payable to stockholders of record at a date
which is prior to the effective
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<PAGE>
date of the merger or consolidation); provided, however, that if no petition for
an appraisal shall be filed within the time provided in subsection (e) of this
section, or if such stockholder shall deliver to the surviving or resulting
corporation a written withdrawal of his demand for an appraisal and an
acceptance of the merger or consolidation, either within 60 days after the
effective date of the merger or consolidation as provided in subsection (e) of
this section or thereafter with the written approval of the corporation, then
the right of such stockholder to an appraisal shall cease. Notwithstanding the
foregoing, no appraisal proceeding in the Court of Chancery shall be dismissed
as to any stockholder without the approval of the Court, and such approval may
be conditioned upon such terms as the Court deems just.
(l) The shares of the surviving or resulting corporation to which the shares
of such objecting stockholders would have been converted had they assented to
the merger or consolidation shall have the status of authorized and unissued
shares of the surviving or resulting corporation.
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<PAGE>
EXHIBIT D
[FIRST BOSTON LETTERHEAD]
November 29, 1994
Special Committee of the Board of Directors
Ogden Projects, Inc.
40 Lane Road
Fairfield, NJ 07007-2615
Dear Sirs:
You have asked us to advise you with respect to the fairness to the
stockholders of Ogden Projects, Inc. (the "Company"), other than stockholders
who are affiliates of the Company (such non-affiliated stockholders, the "Public
Stockholders"), from a financial point of view of the exchange ratio
contemplated by the Amended and Restated Agreement and Plan of Merger, dated as
of September 27, 1994 (the "Merger Agreement"), by and among Ogden Corporation
("Ogden"), OPI Acquisition Corp. ("Sub"), a wholly owned subsidiary of Ogden,
and the Company. The Merger Agreement provides for, among other things, the
merger of Sub into the Company pursuant to which the Company will become a
wholly owned subsidiary of Ogden and each outstanding share of common stock, par
value $0.50 per share, of the Company not owned directly or indirectly by Ogden,
Sub or the Company will be converted into the right to receive 0.84 of a share
of common stock, par value $0.50 per share, of Ogden (the "Exchange Ratio").
In arriving at our opinion, we have reviewed the Merger Agreement, the
Registration Statement on Form S-4 of Ogden, dated as of November 29, 1994
and certain publicly available business and financial information relating to
the Company and Ogden. We have also reviewed certain other information,
including financial forecasts, provided to us by the Company and Ogden, and
have met with the managements of the Company and Ogden to discuss the business
and prospects of the Company and Ogden.
We have also considered certain financial and stock market data of the
Company and Ogden, and we have compared the data with similar data for other
publicly held companies in businesses similar to those of the Company and Ogden.
In addition, we have considered the financial terms of certain other similar
transactions which have recently been effected. We also considered such other
information, financial studies, analyses and investigations and financial,
economic and market criteria which we deemed relevant.
In connection with our review, we have not assumed responsibility for
independent verification of any of the foregoing information and we have relied
on its being complete and accurate in all material respects. With respect to the
financial forecasts, we have assumed that they have been reasonably prepared on
bases reflecting the best currently available estimates and judgments of
managements of the Company and Ogden as to the future financial performance of
the Company and Ogden. In addition, we have not assumed any responsibility for
an independent evaluation or appraisal of the assets of the Company or Ogden,
nor have we been furnished with any such evaluations or appraisals. We were not
requested to, and did not, solicit third party indications of interest in
acquiring all or any part of the Company.
CS First Boston Corporation is a nationally recognized investment banking
firm and is actively engaged in the valuation of businesses and their securities
in connection with mergers and acquisitions, leveraged buyouts, negotiated
underwritings, secondary distributions of listed and unlisted securities and
private placements.
<PAGE>
We are acting as financial advisor to the Special Committee in connection
with the transactions contemplated by the Merger Agreement and will receive a
fee from the Company for our services, a portion of which is contingent upon the
delivery of an opinion as to the fairness of the proposed transaction.
In the ordinary course of our business, we and our affiliates may actively
trade the debt and equity securities of both the Company and Ogden for their own
account and for the accounts of customers, and accordingly, may at any time hold
a long or short position in such securities.
Based upon and subject to the foregoing, we are of the opinion that, as of
the date hereof, the Exchange Ratio is fair to the Public Stockholders from a
financial point of view.
Very truly yours,
CS FIRST BOSTON CORPORATION
/s/ CS FIRST BOSTON CORPORATION
By: ..................................
<PAGE>
OGDEN PROJECTS, INC.--PROXY
THIS PROXY IS SOLICITED ON BEHALF OF THE BOARD OF DIRECTORS
KNOW ALL MEN BY THESE PRESENTS that the undersigned shareholder of OGDEN
PROJECTS, INC. (the "Corporation") does hereby constitute and appoint R. RICHARD
ABLON, SCOTT G. MACKIN and JEFFREY R. HOROWITZ, and each of them, attorneys and
proxies with full power of substitution to each, and for and in the name of the
undersigned and with all the powers the undersigned would possess if personally
present, to vote all the shares of Common Stock of the undersigned in the
Corporation at the Special Meeting of Shareholders of the Corporation, to be
held at the headquarters of the Corporation located at 40 Lane Road, Fairfield,
New Jersey at 10:00 A.M. (local time) on Thursday, December 29, 1994, and at
any and all adjournments thereof, on the matters as described in Proposals 1
and 2 set forth on the reverse of this proxy.
A majority of such attorneys/proxies as shall be present and shall act at
said meeting, or any of them (if only one of such attorneys shall be present
and act, then that one) shall have and may exercise all the powers of said
attorneys/proxies hereunder.
BASED ON THE RECOMMENDATION OF AN INDEPENDENT SPECIAL COMMITTEE OF THE BOARD
OF DIRECTORS, THE BOARD OF DIRECTORS RECOMMENDS THAT SHAREHOLDERS VOTE FOR THE
APPROVAL AND ADOPTION OF THE MERGER AGREEMENT (AS DEFINED IN PROPOSAL 1) AND
APPROVAL OF THE APPRAISAL RIGHTS AMENDMENT (AS DEFINED IN PROPOSAL 2).
(Continued and to be signed on the reverse side)
<PAGE>
PLEASE MARK
YOUR VOTES
AS THIS
/X/
- ----------
COMMON
Proposal 1. Approval and adoption of the Amended and Restated Agreement and
----------
Plan of Merger, dated as of September 27, 1994, by and among the Corporation,
Ogden Corporation ("Ogden") and OPI Acquisition Corp., a wholly owned subsidiary
of Ogden ("Acquisition Sub"), pursuant to which, among other things, Acquisition
Sub will be merged with and into the Corporation ("the Merger"), the Corporation
will become a wholly owned subsidiary of Ogden and each outstanding share of
common stock of the Corporation, par value $.50 per share ("OPI Common Stock")
(other than shares of OPI Common Stock held by Ogden and its subsidiaries or as
to which appraisal rights have been duly demanded, as described in Proposal 2)
will be converted into the right to receive 0.84 shares of common stock of
Ogden, par value $.50 per share.
FOR AGAINST ABSTAIN
/ / / / / /
Proposal 2. Approval of an amendment to the Third Restated Certificate of
----------
Incorporation of the Corporation to provide appraisal rights, pursuant to
Section 262 of the General Corporation Law of Delaware, to holders of OPI Common
Stock who do not vote in favor of the Merger and elect to demand appraisal in
accordance with Section 262 (the "Appraisal Rights Amendment"). Approval and
effectiveness of the Appraisal Rights Amendment is a condition to the
consummation of the Merger and the Merger will not become effective until the
Appraisal Rights Amendment has been approved and becomes effective.
FOR AGAINST ABSTAIN
/ / / / / /
This Proxy, when properly executed, will be voted in the manner directed
herein by the undersigned shareholder. If no such directions are given with
respect to all or some Proposals, as to such Proposal or Proposals, the
shares represented by this Proxy will be voted FOR such Proposal or Proposals.
Signature(s): .................................... Date: ....................
Note: Please sign exactly as name appears hereon. Joint owners should each
sign. When signing as attorney, executor, administrator, trustee or
guardian, please give full title as such.
PLEASE READ, SIGN, DATE AND RETURN THIS PROXY CARD PROMPTLY USING THE ENCLOSED
ENVELOPE.
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 20. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the Delaware General Corporation Law (the "DGCL") provides
for indemnification of directors and officers against any legal liability (other
than liability arising from derivative suits) if the officer or director acted
in good faith and in a manner that he reasonably believed to be in or not
opposed to the best interests of the corporation. In criminal actions, the
officer or director must also have had no reasonable cause to believe that his
conduct was unlawful. A corporation may indemnify an officer or director in a
derivative suit if the officer or director acted in good faith and in a manner
that he reasonably believed to be in or not opposed to the best interests of the
corporation, unless the officer or director is found liable to the corporation.
However, if the Court of Chancery or the court in which such action or suit was
brought determines that the officer or director is fairly and reasonably
entitled to indemnity, then the Court of Chancery or such other court may permit
indemnity for such officer or director to the extent it deems proper.
The Registrant's Bylaws generally incorporate the standards of conduct
of Section 145 and generally provide that the Registrant will indemnify its
present and past officers and directors against expenses actually and
reasonably incurred in connection with any such proceedings, whether civil or
criminal, if the relevant standard of conduct has been met. Any indemnification
of an officer or director may be made only on a determination by the Board of
Directors that such officer or director met the applicable standard of conduct.
The termination of a proceeding by judgment, order, settlement, conviction or
upon a plea of nolo contendre or its equivalent shall not, of itself, create a
presumption that such standard of conduct was not met.
The Registrant's Bylaws also provide that the Registrant shall advance
expenses incurred by or on behalf of an officer or director in defending a
civil or criminal proceeding, prior to the final disposition thereof, upon
the receipt of an undertaking to repay such amounts if it is ultimately
determined that he or she is not entitled to be indemnified under the Bylaws.
The Registrant's Certificate of Incorporation provides that directors of the
Registrant shall not be held personally liable to the Registrant or its
stockholders for monetary damages arising from breaches of their fiduciary
duties as a director, except to the extent such exemption or limitation is
not permitted by the DGCL. Under the DGCL, the provision would not insulate
directors from personal liability for (i) breaches of their duty of loyalty to
the Registrant or its stockholders, (ii) acts or omissions not taken in good
faith or that involve intentional misconduct or a knowing violation of law,
(iii) transactions in which the director derives any improper personal benefit
or (iv) unlawfully voting to pay dividends or to repurchase or redeem stock.
The indemnification and advancement of expenses provisions of the
Registrant's Bylaws are not exclusive of any other rights of indemnification. In
addition, the Registrant has the power to maintain, and in fact does maintain,
insurance policies providing for indemnification of directors and officers and
for reimbursement to the Registrant for monies which it may pay as indemnity to
any director or officer, subject to the conditions and exclusions of the
policies and specified deductible provisions.
II-1
<PAGE>
ITEM 21. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES.
(a) Exhibits.
<TABLE>
<S> <C>
2 -- Amended and Restated Agreement and Plan of Merger among Ogden Corporation, OPI
Acquisition Corp. and Ogden Projects, Inc., dated as of September 27, 1994
(included as Exhibit A to the Proxy Statement/Prospectus forming a part of this
Registration Statement).
3.1 -- Restated Certificate of Incorporation of Ogden Corporation, as amended
(Exhibit(4)(a) to Ogden's Form 10-Q for the quarter ended September 30, 1990 and
incorporated herein by reference).
3.2 * --Ogden Corporation By-Laws, as amended through September 22, 1994.
4.1 -- Underwriting Agreement, dated as of March 4, 1992, by and among Ogden
Corporation, Goldman, Sachs & Co., J.P. Morgan Securities, Inc. and Salomon
Brothers Inc (Exhibit (1)(b) to Ogden's Form 10-K for the fiscal year ended
December 31, 1991 and incorporated herein by reference).
4.2 -- Indenture dated as of March 1, 1992, between Ogden Corporation and the Bank of
New York, Trustee, relating to Ogden's $100 million debt offering (Exhibit(4)(c)
to Ogden's Form 10-K for the fiscal year ended December 31, 1991 and incorporated
herein by reference).
4.3 -- Fiscal Agency Agreement and Offering Memorandum describing Ogden's $85 million 6%
Convertible Subordinated Debentures, due 2002, and $75 million 5.75% Convertible
Subordinated Debentures, due 2002 (Exhibits(4)(a) and (b) to Ogden's Form 10-K for
the fiscal year ended December 31, 1989 and incorporated herein by reference).
4.4 -- Credit Agreement by and among Ogden Corporation, The Bank of New York, as Agent,
and National Westminster Bank PLC, Swiss Bank Corporation and Union Bank of
Switzerland, dated as of January 31, 1990 (Exhibit (10)(b) to Ogden's Form 10-K
for the fiscal year ended December 31, 1989 and incorporated herein by reference).
4.5 -- Amendment No. 1, dated December 28, 1990, to the Credit Agreement, dated January
31, 1990 by and among Ogden, the signatory Banks thereto and The Bank of New York,
as Agent (Exhibit (10)(i) to Ogden's Form 10-K for the fiscal year ended December
31, 1990 and incorporated herein by reference).
5 -- Opinion of Cleary, Gottlieb, Steen & Hamilton as to the validity of the Ogden
Common Stock being registered.
8 --Opinion of Cleary, Gottlieb, Steen & Hamilton with respect to certain tax matters.
10.1 -- Form of Appraisal Rights Amendment to the Third Restated Certificate of
Incorporation of Ogden Projects, Inc. (included as Exhibit B to the
Proxy Statement/Prospectus forming a part of this Registration
Statement).
10.2 * -- Form of Indemnification Agreement, dated August 31, 1994, between OPI and each
member of the Special Committee.
10.3 -- Memorandum of Understanding, dated September 27, 1994, among the attorneys for
the Class Action Plaintiffs, Ogden Projects, Inc. and Ogden Corporation with
respect to the settlement in principle of the Class Action Lawsuits.
23.1 --Consent of Deloitte & Touche LLP.
23.2 -- Consent of Cleary, Gottlieb, Steen & Hamilton (contained in opinions filed as
Exhibit 5 and Exhibit 8).
23.3 --Consent of CS First Boston Corporation.
</TABLE>
(b) Financial Statement Schedules.
None.
(c) Item 4(b) Information.
Opinion of CS First Boston Corporation, dated November 29, 1994
(included as Exhibit D to the Proxy Statement/Prospectus forming a
part of this Registration Statement).
* Filed previously
II-2
<PAGE>
ITEM 22. UNDERTAKINGS.
(a)(1) The undersigned Registrant hereby undertakes that for purposes of
determining any liability under the Securities Act of 1933, as amended (the
"Securities Act"), each filing of the Registrant's annual report pursuant to
Section 13(a) or 15(d) of the Securities Exchange Act of 1934, as amended,
that is incorporated by reference in the registration statement shall be
deemed to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to
be the initial bona fide offering thereof.
---------
(a)(2) The undersigned Registrant hereby undertakes as follows: that
prior to any public reoffering of the securities registered hereunder
through use of a prospectus which is a part of this registration statement,
by any person or party who is deemed to be an underwriter within the
meaning of Rule 145(c), such reoffering prospectus will contain the
information called for by the applicable registration form with respect
to reofferings by persons who may be deemed underwriters, in addition to
the information called for by the other items of the applicable form.
(a)(3) The undersigned Registrant hereby undertakes that every
prospectus: (i) that is filed pursuant to the immediately preceding
paragraph (a)(2), or (ii) that purports to meet the requirements of
Section 10(a)(3) of the Securities Act and is used in connection with an
offering of securities subject to Rule 415, will be filed as part of an
amendment to the registration statement and will not be used until such
amendment is effective, and that, for purposes of determining any
liability under the Securities Act, each such post-effective amendment
shall be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at that
time shall be deemed to be the initial bona fide offering thereof.
(a)(4) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling
persons of the Registrant pursuant to the foregoing provisions, or
otherwise, the Registrant has been advised that in the opinion of the
Securities and Exchange Commission such indemnification is against public
policy as expressed in the Securities Act and is, therefore, unenforceable.
In the event that a claim for indemnification against such liabilities
(other than the payment by the Registrant of expenses incurred or paid by a
director, officer or controlling person of the Registrant in the successful
defense of any action, suit or proceeding) is asserted by such director,
officer or controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its counsel the
matter has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question of whether such indemnification by it
is against public policy as expressed in the Securities Act and will be
governed by the final adjudication of such issue.
(b) The undersigned Registrant hereby undertakes to respond to requests
for information that is incorporated by reference into the prospectus
pursuant to Item 4, 10(b), 11 or 13 of this form, within one business day of
receipt of such request, and to send the incorporated documents by first
class mail or other equally prompt means. This includes information
contained in documents filed subsequent to the effective date of the
registration statement through the date of responding to the request.
(c) The undersigned Registrant hereby undertakes to supply by means of a
post-effective amendment all information concerning a transaction, and the
company being acquired involved therein, that was not the subject of and
included in the registration statement when it became effective.
II-3
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
has duly caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of New York, State of New
York, on the 29th day of November, 1994.
OGDEN CORPORATION
By: /s/ R. RICHARD ABLON
..................................
President and Chief Executive
Officer
(Chief Executive Officer)
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities and on the date indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- -------------------------------------- ----------------------------- -----------------
<S> <C> <C>
/s/ RALPH E. ABLON Chairman of the Board and November 29, 1994
...................................... Director
Ralph E. Ablon
/s/ R. RICHARD ABLON President, Chief Executive November 29, 1994
...................................... Officer and Director
R. Richard Ablon
/s/ CONSTANTINE G. CARAS Executive Vice President, November 29, 1994
...................................... Chief Administrative
Constantine G. Caras Officer and Director
/s/ PHILIP G. HUSBY Senior Vice President and November 29, 1994
...................................... Chief Financial Officer
Philip G. Husby (Chief Financial Officer)
/s/ ROBERT M. DIGIA Vice President, Controller November 29, 1994
...................................... and Chief Accounting
Robert M. DiGia Officer (Chief Accounting
Officer)
/s/ DAVID M. ABSHIRE Director November 29, 1994
......................................
David M. Abshire
/s/ NORMAN G. EINSPRUCH Director November 29, 1994
......................................
Norman G. Einspruch
/s/ ATTALLAH KAPPAS Director November 29, 1994
......................................
Attallah Kappas
...................................... Director
Terry Allen Kramer
/s/ MARIA P. MONET Director November 29, 1994
......................................
Maria P. Monet
/s/ JUDITH D. MOYERS Director November 29, 1994
......................................
Judith D. Moyers
/s/ HOMER A. NEAL Director November 29, 1994
......................................
Homer A. Neal
/s/ STANFORD S. PENNER Director November 29, 1994
......................................
Stanford S. Penner
</TABLE>
II-4
<PAGE>
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- -------------------------------------- ----------------------------- -----------------
<S> <C> <C>
/s/ JESUS SAINZ November 29, 1994
...................................... Director
Jesus Sainz
/s/ FREDERICK SEITZ Director November 29, 1994
......................................
Frederick Seitz
/s/ ROBERT E. SMITH Director November 29, 1994
......................................
Robert E. Smith
/s/ HELMUT VOLCKER Director November 29, 1994
......................................
Helmut Volcker
/s/ ABRAHAM ZALEZNIK Director November 29, 1994
......................................
Abraham Zaleznik
</TABLE>
II-5
<PAGE>
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
EXHIBITS
- --------
<S> <C> <C>
2 -- Amended and Restated Agreement and Plan of Merger among Ogden
Corporation, OPI Acquisition Corp. and Ogden Projects, Inc., dated
as of September 27, 1994 (included as Exhibit A to the Proxy
Statement/Prospectus forming a part of this Registration Statement).
3.1 -- Restated Certificate of Incorporation of Ogden Corporation, as
amended (Exhibit(4)(a) to Ogden's Form 10-Q for the quarter ended
September 30, 1990 and incorporated herein by reference).
3.2 * --Ogden Corporation By-Laws, as amended through September 22, 1994.
4.1 -- Underwriting Agreement, dated as of March 4, 1992, by and among
Ogden Corporation, Goldman, Sachs & Co., J.P. Morgan Securities,
Inc. and Salomon Brothers Inc (Exhibit (1)(b) to Ogden's Form 10-K
for the fiscal year ended December 31, 1991 and incorporated herein
by reference).
4.2 -- Indenture dated as of March 1, 1992, between Ogden Corporation and
the Bank of New York, Trustee, relating to Ogden's $100 million debt
offering (Exhibit(4)(c) to Ogden's Form 10-K for the fiscal year
ended December 31, 1991 and incorporated herein by reference).
4.3 -- Fiscal Agency Agreement and Offering Memorandum describing Ogden's
$85 million 6% Convertible Subordinated Debentures, due 2002, and
$75 million 5.75% Convertible Subordinated Debentures, due 2002
(Exhibits(4)(a) and (b) to Ogden's Form 10-K for the fiscal year
ended December 31, 1989 and incorporated herein by reference).
4.4 -- Credit Agreement by and among Ogden Corporation, The Bank of New
York, as Agent, and National Westminster Bank PLC, Swiss Bank
Corporation and Union Bank of Switzerland, dated as of January 31,
1990 (Exhibit (10)(b) to Ogden's Form 10-K for the fiscal year ended
December 31, 1989 and incorporated herein by reference).
4.5 -- Amendment No. 1, dated December 28, 1990, to the Credit Agreement,
dated January 31, 1990 by and among Ogden, the signatory Banks
thereto and The Bank of New York, as Agent (Exhibit (10)(i) to
Ogden's Form 10-K for the fiscal year ended December 31, 1990 and
incorporated herein by reference).
5 -- Opinion of Cleary, Gottlieb, Steen & Hamilton as to the validity of
the Ogden Common Stock being registered.
8 --Opinion of Cleary, Gottlieb, Steen & Hamilton with respect to
certain tax matters.
10.1 -- Form of Appraisal Rights Amendment to the Third Restated
Certificate of Incorporation of Ogden Projects, Inc. (included
as Exhibit B to the Proxy Statement/Prospectus forming a part of
this Registration Statement).
10.2 * -- Form of Indemnification Agreement, dated August 31, 1994, between
OPI and each member of the Special Committee.
10.3 -- Memorandum of Understanding, dated September 27, 1994, among the
attorneys for the Class Action Plaintiffs, Ogden Projects, Inc. and
Ogden Corporation with respect to the settlement of the Class Action
Lawsuits.
23.1 --Consent of Deloitte & Touche LLP.
23.2 --Consent of Cleary, Gottlieb, Steen & Hamilton (contained in opinions
filed as Exhibit 5 and Exhibit 8).
23.3 --Consent of CS First Boston Corporation.
</TABLE>
* Filed previously
Exhibit 5
[Cleary, Gottlieb, Steen & Hamilton letterhead]
November 28, 1994
Ogden Corporation
Two Pennsylvania Plaza
New York, New York 10121
Re: New Common Stock of Ogden Corporation
-------------------------------------
Ladies and Gentlemen:
We have acted as special counsel to Ogden Corporation,
a Delaware corporation (the "Company"), in connection with the
preparation and filing with the United States Securities and
Exchange Commission (the "Commission") under the United States
Securities Act of 1933, as amended (the "Securities Act"), of the
Company's registration statement on Form S-4, No. 33-56181 (the
"Registration Statement") relating to the issuance, as described
in the Registration Statement and the form of prospectus
contained therein (the "Prospectus"), of up to 5,409,918 newly
issued shares of the Company's common stock, par value $0.50 per
share (the "New Common Stock"). The New Common Stock is to be
issued in accordance with the terms of the Amended and Restated
Agreement and Plan of Merger, dated as of September 27, 1994,
(the "Merger Agreement") by and among the Company, OPI
Acquisition Corp., a wholly-owned subsidiary of the Company, and
Ogden Projects, Inc ("OPI"), which Merger Agreement is included
as Exhibit A to the Prospectus.
<PAGE>
Ogden Corporation, p. 2
In arriving at the opinions expressed below, we have
reviewed the Registration Statement as filed with the Commission
and the exhibits thereto. In addition, we have reviewed the
originals or copies certified or otherwise identified to our
satisfaction of all such corporate records of the Company and
such other instruments and other certificates of public
officials, officers and representatives of the Company and such
other persons, and we have made such investigations of law, as we
have deemed appropriate as a basis for the opinions expressed
below. In rendering the opinions expressed below, we have
assumed that the signatures on all documents that we have
reviewed are genuine, we have relied upon the facts stated in the
Prospectus, and we have assumed that the New Common Stock will
conform in all material respects to the description thereof set
forth in the Prospectus.
Based upon and subject to the foregoing, it is our
opinion that the shares of New Common Stock have been duly
authorized by all necessary corporate action of the Company and,
when issued in accordance with such authorization and delivered
and exchanged following consummation of the Merger as
contemplated in the Prospectus, will be validly issued, fully
paid and nonassessable.
The foregoing opinions are limited to the federal law
of the United States of America, the law of the State of New York
and the General Corporation Law of the State of Delaware.
We hereby consent to the filing of this opinion as an
exhibit to the Registration Statement and to the reference to our
name in the Prospectus under the heading "Legal Matters." By giving
such consent, we do not admit that we are "experts" under the
Securities Act or the rules and regulations of the Commission
issued thereunder with respect to any part of the Registration
Statement, including this exhibit.
Very truly yours,
CLEARY, GOTTLIEB, STEEN & HAMILTON
By /s/ William F. Gorin
-------------------------------
William F. Gorin, a Partner
Exhibit 8
[Cleary, Gottlieb, Steen & Hamilton letterhead]
Writers Direct Dial: (212) 225-2440
November 28, 1994
Ogden Corporation
Two Pennsylvania Plaza
New York, New York 10121
Ladies and Gentlemen:
We have acted as special counsel to Ogden Corporation, a
Delaware corporation (the "Company"), in connection with the
preparation and filing with the United States Securities and
Exchange Commission (the "Commission") under the United States
Securities Act of 1933, as amended (the "Securities Act"), of the
Company's registration statement on Form S-4, No. 33-56181 (the
"Registration Statement") relating to the merger (the "Merger"),
as described in the Prospectus/Proxy Statement (the "Prospectus")
forming a part of the Registration Statement, of OPI Acquisition Corp.
("Acquisition Sub"), a wholly-owned subsidiary of the Company,
with and into Ogden Projects, Inc. ("OPI"), pursuant to the terms
of the Amended and Restated Agreement and Plan of Merger, dated
as of September 27, 1994 (the "Merger Agreement") by and among
the Company, Acquisition Sub and OPI, which Merger Agreement is
included as Exhibit A to the Prospectus.
In arriving at the opinion expressed below, we have reviewed
the Registration Statement as filed with the Commission and have
assumed the accuracy of the factual statements in the Prospectus.
In addition, we have assumed that the Merger will take place in
accordance with the terms of the Merger Agreement. We have made such
investigations of law as we have deemed appropriate as a basis
for such opinion.
Our advice formed the basis for the discussion of certain federal
income tax consequences of the Merger appearing in the Prospectus
under the headings "SUMMARY --The Merger--Certain Federal Income
Tax Consequences" and "THE MERGER-- Certain Federal Income Tax
Consequences." Such discussion does not purport to deal with all
possible federal income tax consequences of the Merger, but with
respect to those tax consequences which are discussed, in our
opinion, the discussion is a fair and accurate summary of the
matters addressed therein under existing federal law of the
United States and the assumptions stated therein.
<PAGE>
We hereby consent to the filing of this opinion as an
exhibit to the Registration Statement and to the reference to our
name in the Prospectus under the headings "THE MERGER-- Certain
Federal Income Tax Consequences" and "Legal Matters." By giving
such consent, we do not admit that we are "experts" under the
Securities Act or the rules and regulations of the Commission
issued thereunder with respect to any part of the Registration
Statement, including this exhibit.
Very truly yours,
CLEARY, GOTTLIEB, STEEN & HAMILTON
By /s/ James M. Peaslee
--------------------
James M. Peaslee, a Partner
EXHIBIT 10.3
September 27, 1994
MEMORANDUM OF UNDERSTANDING
---------------------------
The parties to the consolidated action entitled In re Ogden Projects Inc.
-------------------------
Shareholders Litigation (Consolidated Civil Action No. 13541), now pending in
- -----------------------
the Court of Chancery of the State of Delaware (the "Action"), by their
respective attorneys, have reached this Memorandum of Understanding providing
for the settlement of the Action on the terms and subject to the conditions
set forth below.
1. As a result of (1) negotiations between the special committee (the
"Special Committee") of the Ogden Projects Inc. ("Ogden Projects") board of
directors and Ogden Corporation ("Ogden"), and (2) negotiations between the
attorneys for the parties to the Action, Ogden has agreed to increase the
consideration to be paid to Ogden Projects shareholders in connection
with the proposed merger of Ogden Projects with and into Ogden (the "Merger")
from 0.78 shares of Ogden common stock to .84 shares of Ogden common stock per
share of Ogden Projects common stock, and to cause Ogden Projects to offer
appraisal rights in connection with the Merger.
2. Plaintiffs' counsel intend to apply to the Delaware Court of Chancery
for an award of attorneys' fees and disbursements in an amount of $480,000.
Subject to the terms and conditions of this Memorandum of Understanding and the
<PAGE>
stipulation contemplated by this agreement (as defined in paragraphs 3), Ogden,
as the surviving corporation in the Merger, will pay plaintiffs' counsel such
amount to the extent it is awarded by the Court.
3. The parties of the Action will attempt in good faith to agree upon
and to execute an appropriate stipulation of settlement of all claims asserted
in the complaints filed in the Action and all other claims, if any, arising
out of or relating to the Merger (the "Stipulation"), and such other
documentation as may be required in order to obtain any necessary court
approvals of the Stipulation, upon the terms set forth in this Memorandum of
Understanding, including that the Stipulation provide for the dismissal of all
such claims with prejudice and without costs to any party (except as provided
for by paragraph 2). The Stipulation will also expressly provide, inter alia,
----------
that all defendants have denied, and continue to deny, that they have committed
any violations of law and that they are entering into the Stipulation solely
because the proposed settlement would eliminate the burden and expense of
further litigation, and will provide for a release of all claims of the
stockholders of Ogden Projects against defendants or any or their present or
former officers, directors, agents, attorneys, financial advisors, commercial
bank lenders, investment bankers, representatives, affiliates, associates,
parents, subsidiaries, general and limited partners and partnerships, heirs,
executors, administrators, successors and assigns, whether under state or
2
<PAGE>
federal law, and whether directly, derivatively, representatively or in any
other capacity, in connection with, or that arise out of the subject matter of
the Action, the Merger, the negotiation and consideration of the Merger, and
the fiduciary or disclosure obligations of any of the defendants (or persons
to be released) with respect to any of the foregoing.
4. The parties of the Action will, as soon as practicable, use their
best efforts to obtain any necessary final court approvals of the Stipulation.
5. The consummation of the settlement is subject to review by plaintiffs'
counsel of the proxy statement to be disseminated to Ogden Products shareholders
in connection with the Merger, the completion by plaintiffs of documentary
discovery and oral depositions, the drafting and execution of the Stipulation
satisfactory to the parties and such other documentation as may be required
to obtain final court approval of the Stipulation. The settlement contemplated
by this Memorandum of Understanding (the "Settlement") will not be binding upon
any party until such proxy statement is reviewed, such discovery has been
completed, and the Stipulation executed. This Memorandum of Understanding shall
be null and void and of no force and effect should (a) any of these conditions
not be met, (b) plaintiffs' counsel determine that, based upon discovery or
subsequent events, the Settlement is not fair and reasonable, (c) the Settlement
not obtain final court approval, and (d) the Merger not be consummated, and, in
that event, this agreement
3
<PAGE>
shall not be deemed to prejudice in any way the positions of the parties
with respect to the Action.
/s/ Goodkind, Labaton, Rudoff &
Sucharow
--------------------------------------
Goodkind, Labaton, Rudoff &
Sucharow
/s/ Bernstein, Litowitz, Berger &
Grossman
--------------------------------------
Bernstein, Litowitz, Berger &
Grossman
/s/ Rosenthal, Monhait, Gross &
Goddess
--------------------------------------
Rosenthal, Monhait, Gross &
Goddess
Liason Counsel for the Plaintiffs
/s/ Rogers & Wells
--------------------------------------
Rogers & Wells
/s/ Richards, Layton & Finger
--------------------------------------
Richards, Layton & Finger
Attorneys for Ogden Projects
Inc., William M. Batten,
Jeffrey F. Friedman, Scott G.
Machin and Bruce W. Stone
/s/ Cleary, Gottlieb, Steen &
Hamilton
--------------------------------------
Cleary, Gottlieb, Steen &
Hamilton
4
<PAGE>
/s/ Morris, Nichols, Arsht & Tunnell
--------------------------------------
Morris, Nichols, Arsht & Tunnell
Attorneys for Ogden Corporation,
R. Richard Ablon, Constantine G.
Caras, Lynde H. Coit and Philip
G. Husby
5
EXHIBIT 23.1
INDEPENDENT AUDITORS' CONSENT
OGDEN CORPORATION:
We consent to the incorporation by reference in this Amendment No. 1 to
Registration Statement No. 33-56181 of Ogden Corporation on Form S-4 of the
reports of Deloitte & Touche dated February 2, 1994 (which express an
unqualified opinion and include an explanatory paragraph relating to the
adoption of Statement of Financial Accounting Standards No. 106 and No. 109),
appearing in and incorporated by reference in the Annual Report on Form 10-K of
Ogden Corporation for the year ended December 31, 1993 and to the reference to
Deloitte & Touche LLP under the headings "Experts" and "Ogden Corporation and
Subsidiaries Selected Historical Consolidated Financial Data" in the Prospectus,
which is part of this Registration Statement.
We also consent to the incorporation by reference in this Amendment No. 1
to Registration Statement No. 33-56181 of Ogden Corporation on Form S-4 of the
reports of Deloitte & Touche dated February 2, 1994 (which express an
unqualified opinion and include an explanatory paragraph relating to the
adoption of Statement of Financial Accounting Standards No. 109), appearing in
and incorporated by reference in the Annual Report on Form 10-K of Ogden
Projects, Inc. for the year ended December 31, 1993 and to the reference to
Deloitte & Touche LLP under the headings "Experts" and "Ogden Projects, Inc. and
Subsidiaries Selected Historical Consolidated Financial Data" in the Prospectus,
which is part of this Registration Statement.
DELOITTE & TOUCHE LLP
New York, New York
November 25, 1994
Exhibit 23.3
CONSENT OF CS FIRST BOSTON CORPORATION
--------------------------------------
We hereby consent to the use of our opinion letter, dated
November 29, 1994, to the Special Committee of the Board of
Directors of Ogden Projects, Inc., included as Exhibit D to the
Proxy Statement/Prospectus which forms a part of the Registration
Statement on Form S-4 (File Number 33-56181) of Ogden
--------
Corporation, and to the references to our name and such opinion
in such Proxy Statement/Prospectus under the captions of "SUMMARY --
The Merger -- Opinion of the Special Committee's Financial
Advisor"; and "THE MERGER -- background of the Merger," "--
Recommendation of the Special Committee" and "-- Opinion of the
Special Committee's Financial Advisor." In giving such consent,
we do not admit and we hereby disclaim that we come within the
category of persons whose consent is required under Section 7 of
the Securities Act of 1933, as amended, or the rules and
regulations of the Securities and Exchange Commission thereunder,
nor do we thereby admit that we are experts with respect to any
part of such Registration Statement within the meaning of the
term "experts" as used in the Securities Act of 1933, as amended,
or the rules and regulations of the Securities and Exchange
Commission thereunder.
CS FIRST BOSTON CORPORATION
By /s/ CS First Boston Corporation
---------------------------------
November 29, 1994
