AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON OCTOBER 27, 1994
REGISTRATION STATEMENT NO. 33-
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------
FORM S-4
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
------------------------
OGDEN CORPORATION
(Exact name of Registrant as specified in its charter)
<TABLE><CAPTION>
<S> <C> <C>
DELAWARE 5812 13-5549268
(State or other jurisdiction (Primary Standard Industrial (I.R.S. Employer
of incorporation or organization) Classification Code Number) Identification Number)
</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. / /
------------------------
CALCULATION OF REGISTRATION FEE
<TABLE><CAPTION>
PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF
TITLE OF EACH CLASS OF AMOUNT TO BE OFFERING PRICE AGGREGATE REGISTRATION
SECURITIES TO BE REGISTERED REGISTERED PER SHARE OFFERING PRICE FEE
<S> <C> <C> <C> <C>
Common Stock, par value $.50 per share
(including Preferred Stock Purchase 5,409,918
Rights)(1).............................. shares(2) N.A. $107,489,909(3) $37,066(4)
</TABLE>
(1) Each share of common stock, par value $.50 per share, of the Registrant
("Ogden Common Stock") includes a Preferred Stock Purchase Right to purchase
one one-hundredth of a share of Cumulative Participating Preferred Stock,
$1.00 par value, of the Registrant or, under certain circumstances, Ogden
Common Stock, cash, property or other securities of the Registrant.
(2) Estimated maximum number of shares of Ogden Common Stock issuable in
connection with the Merger, calculated on the basis of (i) the exchange
ratio in the Merger (0.84 shares of Ogden Common Stock for each share of
common stock, par value $.50 per share ("OPI Common Stock") of Ogden
Projects, Inc. ("OPI") multiplied by (ii) 6,440,378, the maximum number of
shares of OPI Common Stock anticipated to be outstanding immediately prior
to the Merger not owned by Ogden and its subsidiaries, assuming the exercise
of all OPI stock options.
(3) Estimated pursuant to Rule 457(f) under the Securities Act of 1933, as
amended (the "Securities Act"), calculated by multiplying $16.69, the
average of the high and low sales prices of a share of OPI Common Stock as
reported on the New York Stock Exchange on October 24, 1994, by 6,440,378,
the maximum number of shares of OPI Common Stock computed as described in
clause (ii) of Note(2).
(4) Calculated pursuant to Section 6(b) of the Securities Act and Rule 457(c) as
1/29th of one percent of the Proposed Maximum Aggregate Offering Price.
------------------------
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>
FORM S-4 ITEM NUMBER AND HEADING CAPTION OR LOCATION IN PROXY 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 (Agreement and
Plan of Merger); Exhibit B (Amendment to OPI's
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>
FORM S-4 ITEM NUMBER AND HEADING CAPTION OR LOCATION IN PROXY 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 , 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 , 1994 at 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.
Very truly yours,
R. RICHARD ABLON
Chairman and Chief Executive Officer
<PAGE>
OGDEN PROJECTS, INC.
-------------------
NOTICE OF SPECIAL MEETING OF STOCKHOLDERS
TO BE HELD ON DECEMBER , 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 , 1994, at 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 , 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 , 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 , 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 , 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 by
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 , 1994, at 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 , 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 , 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 , 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 and June 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 and June 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......................................................................... 46
Comparison of Stockholders' Rights......................................................................... 50
The Appraisal Rights Amendment............................................................................. 52
Experts.................................................................................................... 53
Legal Matters.............................................................................................. 53
Stockholder Proposals...................................................................................... 53
Exhibit A--Amended and Restated Agreement and Plan of Merger............................................... A-1
Exhibit B--Form of Certificate of Amendment of Third Restated Certificate of Incorporation of Ogden
Projects, Inc. .......................................................................................... B-1
Exhibit C--Delaware General Corporation Law Section 262.................................................... C-1
Exhibit D--Opinion of CS First Boston Corporation.......................................................... D-1
</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
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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>
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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 through its five major business groups: Aviation
Services, Entertainment Services, Environmental and Energy Services,
Government Services and Atlantic Design Company, and Facility 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
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5
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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
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<S> <C>
DATE, TIME AND PLACE OF SPECIAL
MEETING:............................ , December , 1994, at 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
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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."
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6
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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 the OPI
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 the Merger Agreement is attached hereto as Exhibit
D. See "The Merger-- Opinion of the Special Committee's Financial Advisor."
</TABLE>
7
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<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 approximately % 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
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8
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<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 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 would be 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,
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9
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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
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10
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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.
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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
-------------------- --------------------
HIGH LOW HIGH LOW
--------- --------- --------- ---------
1992:
<S> <C> <C> <C> <C>
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 , 1994)........................... -- -- -- --
</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 , 1994, the closing sale
prices for Ogden Common Stock and OPI Common Stock were $ and
$ per share, respectively. Based on the November closing sale
price of Ogden Common Stock, the market value of 0.84 of a share of Ogden Common
Stock was $ .
Holders of Ogden Common Stock as of , 1994 will be entitled to
receive the quarterly dividend of $0. per share payable to holders of record
as of such date on , 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 , 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 June 30, 1994 and for the six month periods
ended June 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 June 30, 1994 incorporated herein by reference. Such
data as of June 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 June 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 six month period ended
June 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>
SIX MONTHS
ENDED
YEAR ENDED DECEMBER 31, JUNE 30,
----------------------------------------------------- --------------------
1989 1990 1991 1992 1993 1993 1994
--------- --------- --------- --------- --------- --------- ---------
(IN MILLIONS, EXCEPT PER SHARE AMOUNTS) (UNAUDITED)
INCOME STATEMENT DATA
<S> <C> <C> <C> <C> <C> <C> <C>
Net Sales and Service Revenues:............. $ 1,526.8 $ 1,556.4 $ 1,567.6 $ 1,768.8 $ 2,039.3 $ 974.6 $ 1,007.0
--------- --------- --------- --------- --------- --------- ---------
--------- --------- --------- --------- --------- --------- ---------
Income (Loss) From:
Continuing operations....................... $ 58.9 $ 58.1 $ 57.6 $ 60.8 $ 62.1 $ 29.9 $ 33.0
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 $ 24.6 $ 31.5
--------- --------- --------- --------- --------- --------- ---------
--------- --------- --------- --------- --------- --------- ---------
Earnings (Loss) per Common Share:
Continuing operations....................... $ 1.39 $ 1.36 $ 1.33 $ 1.41 $ 1.43 $ 0.69 $ 0.75
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 $ 0.57 $ 0.72
--------- --------- --------- --------- --------- --------- ---------
--------- --------- --------- --------- --------- --------- ---------
Earnings (Loss) per Common Share-Assuming
Full Dilution:
Continuing operations....................... $ 1.37 $ 1.34 $ 1.32 $ 1.40 $ 1.42 $ 0.68 $ 0.74
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 $ 0.56 $ 0.71
--------- --------- --------- --------- --------- --------- ---------
--------- --------- --------- --------- --------- --------- ---------
Cash Dividends Declared per Common Share.... $ 1.25 $ 1.31 $ 1.25 $ 1.25 $ 1.25 $ 0.63 $ 0.63
--------- --------- --------- --------- --------- --------- ---------
--------- --------- --------- --------- --------- --------- ---------
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 43.7 43.9
--------- --------- --------- --------- --------- --------- ---------
--------- --------- --------- --------- --------- --------- ---------
BALANCE SHEET DATA
Total Assets................................ $ 2,700.1 $ 2,690.4 $ 2,846.3 $ 3,187.8 $ 3,312.5 $ 3,267.3 $ 3,371.6
--------- --------- --------- --------- --------- --------- ---------
--------- --------- --------- --------- --------- --------- ---------
Long-Term Obligations....................... $ 1,715.8 $ 1,688.4 $ 1,797.7 $ 2,028.0 $ 1,979.2 $ 2,015.7 $ 1,970.9
--------- --------- --------- --------- --------- --------- ---------
--------- --------- --------- --------- --------- --------- ---------
Common Shareholders' Equity................. $ 476.6 $ 484.5 $ 478.1 $ 481.1 $ 486.3 $ 483.0 $ 493.5
--------- --------- --------- --------- --------- --------- ---------
--------- --------- --------- --------- --------- --------- ---------
Shareholders' Equity Per Common Share....... $ 11.19 $ 11.26 $ 11.09 $ 11.11 $ 11.15 $ 11.09 $ 11.30
--------- --------- --------- --------- --------- --------- ---------
--------- --------- --------- --------- --------- --------- ---------
</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 June 30, 1994 and for the six month periods ended June 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 June 30,
1994 incorporated herein by reference. Such data as of June 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 June 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 six month period ended June 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>
SIX MONTHS
ENDED
YEAR ENDED DECEMBER 31, JUNE 30,
---------------------------------------------------------- ----------------------
1989 1990 1991 1992 1993 1993 1994
---------- ---------- ---------- ---------- ---------- ---------- ----------
(IN MILLIONS EXCEPT PER SHARE AMOUNTS) (UNAUDITED)
INCOME STATEMENT DATA
<S> <C> <C> <C> <C> <C> <C> <C>
Service Revenues................... $ 165.0 $ 245.4 $ 321.3 $ 371.7 $ 432.6 $ 213.0 $ 228.8
Construction Revenues.............. 156.7 117.2 42.9 94.3 248.5 100.3 112.2
---------- ---------- ---------- ---------- ---------- ---------- ----------
Total......................... $ 321.7 $ 362.6 $ 364.2 $ 466.0 $ 681.1 $ 313.3 $ 341.0
---------- ---------- ---------- ---------- ---------- ---------- ----------
---------- ---------- ---------- ---------- ---------- ---------- ----------
Income (Loss) From:
Continuing operations.............. $ 26.3 $ 39.2 $ 52.6 $ 43.0 $ 43.7 $ 20.0 $ 26.5
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 $ 20.0 $ 26.5
---------- ---------- ---------- ---------- ---------- ---------- ----------
---------- ---------- ---------- ---------- ---------- ---------- ----------
Earnings (Loss) per Common Share:
Continuing operations.............. $ 0.77 $ 1.07 $ 1.40 $ 1.14 $ 1.15 $ 0.53 $ 0.70
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 $ 0.53 $ 0.70
---------- ---------- ---------- ---------- ---------- ---------- ----------
---------- ---------- ---------- ---------- ---------- ---------- ----------
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 $ 2,356.3 $ 2,480.7
---------- ---------- ---------- ---------- ---------- ---------- ----------
---------- ---------- ---------- ---------- ---------- ---------- ----------
Long-Term Obligations.............. $ 1,377.8 $ 1,363.2 $ 1,473.1 $ 1,611.2 $ 1,579.8 $ 1,598.4 $ 1,571.7
---------- ---------- ---------- ---------- ---------- ---------- ----------
---------- ---------- ---------- ---------- ---------- ---------- ----------
Common Shareholders' Equity........ $ 145.3 $ 218.9 $ 253.8 $ 344.1 $ 389.9 $ 365.3 $ 416.4
---------- ---------- ---------- ---------- ---------- ---------- ----------
---------- ---------- ---------- ---------- ---------- ---------- ----------
Shareholders' Equity Per Common
Share.............................. $ 4.05 $ 5.84 $ 6.74 $ 9.08 $ 10.26 $ 9.62 $ 10.96
---------- ---------- ---------- ---------- ---------- ---------- ----------
---------- ---------- ---------- ---------- ---------- ---------- ----------
</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 six month period ended
June 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 June 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 $22.00 (the closing price per share of Ogden
Common Stock on June 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 June 30, 1994 assuming that none of the OPI stock
options outstanding on June 30, 1994 are exercised prior to the Merger. Based on
such assumptions, 6,013,000 shares of OPI Common Stock will be exchanged for
5,051,000 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 June 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 six months ended June
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 JUNE 30, 1994
----------------------------------- -----------------------------------
ACQUISITION ACQUISITION
OF OGDEN OF OGDEN
PROJECTS, PROJECTS,
INC. PRO FORMA 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 $ 213,855 $ 213,855
Receivables............................................. 375,532 375,532 378,902 378,902
Other................................................... 29,835 29,835 34,118 34,118
---------- ---------- ---------- ----------
Total current assets................................ 605,153 605,153 626,875 626,875
Property, plant and equipment-net....................... 130,439 130,439 130,774 130,774
Other assets............................................ 281,255 $ 53,475(a) 334,730 300,629 $ 49,233(b) 349,862
---------- ----------- ---------- ---------- ----------- ----------
Total............................................... 1,016,847 53,475 1,070,322 1,058,278 49,233 1,107,511
---------- ----------- ---------- ---------- ----------- ----------
WASTE-TO-ENERGY OPERATIONS:
Cash.................................................... 3,558 3,558 4,208 4,208
Receivables............................................. 224,561 224,561 249,103 249,103
Restricted funds held in trust.......................... 359,416 359,416 329,033 329,033
Property, plant and equipment-net....................... 1,563,362 1,563,362 1,592,136 1,592,136
Other assets............................................ 144,766 144,766 138,854 138,854
---------- ---------- ---------- ----------
Total............................................... 2,295,663 2,295,663 2,313,334 2,313,334
---------- ----------- ---------- ---------- ----------- ----------
CONSOLIDATED ASSETS..................................... $3,312,510 $ 53,475 $3,365,985 $3,371,612 $ 49,233 $3,420,845
---------- ----------- ---------- ---------- ----------- ----------
---------- ----------- ---------- ---------- ----------- ----------
LIABILITIES AND SHAREHOLDERS' EQUITY
OPERATIONS OTHER THAN WASTE-TO-ENERGY:
Current liabilities:
Current portion of long-term debt....................... $ 3,070 $ 3,070 $ 3,646 $ 3,646
Accounts payable and accrued expenses, etc.............. 179,449 $ 4,000(a) 183,449 195,012 $ 4,000(b) 199,012
---------- ----------- ---------- ---------- ----------- ----------
Total current liabilities........................... 182,519 4,000 186,519 198,658 4,000 202,658
Long-term debt.......................................... 247,640 247,640 247,419 247,419
Deferred income taxes and other liabilities............. 139,889 139,889 149,727 149,727
Minority interest in subsidiaries....................... 61,981 (61,637)(a) 344 66,263 (65,879)(b) 384
Convertible subordinated debentures..................... 151,750 151,750 151,750 151,750
---------- ----------- ---------- ---------- ----------- ----------
Total............................................... 783,779 (57,637) 726,142 813,817 (61,879) 751,938
---------- ----------- ---------- ---------- ----------- ----------
WASTE-TO-ENERGY OPERATIONS:
Accounts payable and accrued expenses, etc.............. 181,453 181,453 160,848 160,848
Project debt:
Revenue bonds issued by and prime responsibility of
municipalities......................................... 1,210,935 1,210,935 1,205,080 1,205,080
Revenue bonds issued by municipal agencies with
sufficient service revenues guaranteed by third
parties................................................ 340,431 340,431 338,231 338,231
Other borrowings........................................ 28,423 28,423 28,423 28,423
Deferred income taxes, deferred income and other
liabilities............................................ 281,222 281,222 331,690 331,690
---------- ---------- ---------- ----------
Total............................................... 2,042,464 2,042,464 2,064,272 2,064,272
---------- ----------- ---------- ---------- ----------- ----------
CONSOLIDATED LIABILITIES 2,826,243 (57,637) 2,768,606 2,878,089 (61,879) 2,816,210
---------- ----------- ---------- ---------- ----------- ----------
SHAREHOLDERS' EQUITY:
Serial cumulative convertible preferred stock, par value
$1.00 per share........................................ 57 57 55 55
Common stock, par value $.50 per share; authorized,
80,000,000 shares...................................... 21,750 2,525(a) 24,275 21,790 2,525(b) 24,315
Capital surplus......................................... 100,223 108,587(a) 208,810 101,255 108,587(b) 209,842
Earned surplus.......................................... 370,231 370,231 374,362 374,362
Other................................................... (5,994) (5,994) (3,939) (3,939)
---------- ----------- ---------- ---------- ----------- ----------
Total............................................... 486,267 111,112 597,379 493,523 111,112 604,635
---------- ----------- ---------- ---------- ----------- ----------
CONSOLIDATED LIABILITIES AND SHAREHOLDERS' EQUITY....... $3,312,510 $ 53,475 $3,365,985 $3,371,612 $ 49,233 $3,420,845
---------- ----------- ---------- ---------- ----------- ----------
---------- ----------- ---------- ---------- ----------- ----------
Shareholders' Equity Per Outstanding Common Share....... $ 11.15 $ 12.28 $ 11.30 $ 12.41
Number of outstanding shares in calculation............. 43,499 48,550 43,579 48,630
</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 SIX MONTHS ENDED JUNE 30, 1994
----------------------------------------- ----------------------------------------
ACQUISITION ACQUISITION
OF OGDEN OF OGDEN
PROJECTS, PROJECTS,
INC. PRO FORMA 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 $ 666,007 $ 666,007
------------ ------------ ------------ -----------
Cost of goods sold and
operating expenses........... 1,192,531 $ 1,544(c) 1,194,075 581,444 $ 772(c) 582,216
Selling, administrative and
general expenses............. 109,153 109,153 55,910 55,910
------------ ------------- ------------ ------------ ------------- -----------
Total costs and expenses...... 1,301,684 1,544 1,303,228 637,354 772 638,126
------------ ------------- ------------ ------------ ------------- -----------
Operating income......... 56,593 (1,544) 55,049 28,653 (772) 27,881
------------ ------------- ------------ ------------ ------------- -----------
WASTE-TO-ENERGY OPERATIONS:
Service and construction
revenues..................... 681,060 681,060 341,030 341,030
------------ ------------ ------------ -----------
Operating and construction
costs........................ 489,498 489,498 240,430 240,430
Selling, administrative and
general expenses............. 16,066 16,066 10,109 10,109
Debt service charges.......... 98,664 98,664 50,236 50,236
Other deductions
(income)--net................ (946) (946) (369) (369)
------------ ------------ ------------ -----------
Total costs and
expenses................. 603,282 603,282 300,406 300,406
------------ ------------ ------------ -----------
Operating income......... 77,778 77,778 40,624 40,624
------------ ------------- ------------ ------------ ------------- -----------
Consolidated operating
income....................... 134,371 (1,544) 132,827 69,277 (772) 68,505
Interest income............... 9,181 9,181 4,791 4,791
Interest expense.............. (20,289) (20,289) (10,834) (10,834)
Other income
(deductions)--net............ 2,238 2,238 (71) (71)
------------ ------------- ------------ ------------ ------------- -----------
Income from operations before
income taxes and minority
interest.................... 125,501 (1,544) 123,957 63,163 (772) 62,391
Less: income taxes............ 56,526 56,526 25,897 25,897
minority interest....... 6,845 (6,886)(d) (41) 4,298 (4,197)(d) 101
------------ ------------- ------------ ------------ ------------- -----------
Income from operations before
cumulative effect of changes
in accounting principles.... $ 62,130 $ 5,342 $ 67,472 $ 32,968 $ 3,425 $ 36,393
------------ ------------- ------------ ------------ ------------- -----------
------------ ------------- ------------ ------------ ------------- -----------
Earnings per share:
Primary....................... $ 1.43 $ 1.39 $ 0.75 $ 0.75
Fully diluted................. $ 1.42 $ 1.38 $ 0.74 $ 0.74
Number of shares in
calculation:
Primary....................... 43,378 48,429 43,551 48,602
Fully diluted................. 43,776 48,827 43,885 48,936
</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
----------- ----------- -------------------------------------------
(IN THOUSANDS)
<S> <C> <C> <C>
Minority interest in subsidiaries.......... $ 61,637 To eliminate the minority interest in OPI.
Other assets............................... 53,475 To record the excess of cost over net
assets acquired.
Accounts payable........................... $ 4,000 To record expenses associated with the
Merger.
Common stock............................... 2,525 To record the issuance of 5.051 million
shares of Ogden Common Stock at par
value.
Capital surplus............................ 108,587 To record the excess of fair value of the
Ogden Common Stock issued over its par
value.
----------- -----------
$ 115,112 $ 115,112
----------- -----------
----------- -----------
</TABLE>
(b) The Merger would be accounted for under the purchase method of
accounting at June 30, 1994 as follows:
<TABLE><CAPTION>
DEBIT CREDIT DESCRIPTION
----------- ----------- -------------------------------------------
(IN THOUSANDS)
<S> <C> <C> <C>
Minority interest in subsidiaries.......... $ 65,879 To eliminate the minority interest in OPI.
Other assets............................... 49,233 To record the excess of cost over net
assets acquired.
Accounts payable........................... $ 4,000 To record expenses associated with the
Merger.
Common stock............................... 2,525 To record the issuance of 5.051 million
shares of Ogden Common Stock at par
value.
Capital surplus............................ 108,587 To record the excess of fair value of the
Ogden Common Stock issued over its par
value.
----------- -----------
$ 115,112 $ 115,112
----------- -----------
----------- -----------
</TABLE>
The pro forma balance sheet at the effective date of the Merger will
reflect an increase or decrease of approximately $1,250,000 in excess of cost
over net assets acquired and shareholders' equity from the pro forma amounts
shown at December 31, 1993 and June 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 $22.00 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 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 June 30, 1994, incorporated herein by reference.
<TABLE><CAPTION>
YEAR ENDED SIX MONTHS
DECEMBER 31, ENDED JUNE 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 $ 0.75 $ 0.75
OPI (per OPI share/share equivalent)............. $ 1.15 $ 1.17 $ 0.70 $ 0.63
Earnings Per Common Share Assuming Full Dilution:
Ogden (per Ogden share).......................... $ 1.42 $ 1.38 $ 0.74 $ 0.74
OPI (per OPI share/share equivalent)............. $ 1.15 $ 1.16 $ 0.70 $ 0.62
Shareholders' Equity Per Common Share:
Ogden (per Ogden share).......................... $ 11.15 $ 12.28 $ 11.30 $ 12.41
OPI (per OPI share/share equivalent)............. $ 10.26 $ 10.32 $ 10.96 $ 10.42
Cash Dividends Per Common Share:
Ogden (per Ogden share).......................... $ 1.25 $ 1.25 $ 0.63 $ 0.63
OPI (per OPI share/share equivalent)............. $ 0.00 $ 1.05 $ 0.00 $ 0.53
</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
by 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 , 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 shares of OPI Common
Stock, which were held by approximately 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
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
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projects that utilize fuels other than waste and the wastewater treatment
business) which 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
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after the mailing of the OPI proxy statement in connection with the Merger or
for reasons related to 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
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<PAGE>
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 and approved the Appraisal Rights Amendment.
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 and approved the Appraisal Rights Amendment.
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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. [material differences
between opinions, if any, to be described].
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
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 outstanding shares of OPI
Common Stock, First Boston was not requested to, and did not, solicit offers to
acquire OPI from third parties.
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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 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
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(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 results
achieved by the combined company may vary from projected results, and the
variations may be material.
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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) 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
$ per share to be payable on , to holders of record of
Ogden Common Stock on . 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 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 presently 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 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 is 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 would be 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
shares of OPI Common Stock (including options to purchase
shares of OPI Common Stock) and a total of shares of Ogden
Common Stock (including options to purchase 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 are attached as
exhibits 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. 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.
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.
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
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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 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.
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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 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
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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 Merger shall become effective 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 (referred to herein as the "Effective Time"). 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 thereto 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
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 through its 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
Entertainment Services which provides facility management, concert promotions,
food, beverage and novelty concession services and maintenance services at
amphitheaters, stadiums, arenas and other venues; (iii) Ogden Environmental and
Energy Services which provides independent power generation, engineering and
consulting services in the environmental and energy markets; (iv) Ogden
Government Services and Atlantic Design Company which provides engineering
design, drafting and technical services, building and repairing electronic
systems, and a broad range of technical support, logistics, and operation and
maintenance services; (v) Ogden Facility Services which provides a broad range
of turnkey facility management, housekeeping, mechanical maintenance, energy
management, security, warehousing, shipping and receiving services; and (vi)
other services which include the removal or encapsulation of asbestos from
office buildings and other structures, food and housekeeping services to
offshore drilling rigs and logistical support services to remote industrial
campsites in the United States and abroad.
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 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.
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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 to supply enough MSW to operate the
facilities near their full capacities and to 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.
Entertainment Services. This group provides concessions food and beverage
services, merchandise, 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
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(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.
Environmental and Energy Services. This group provides a comprehensive
range of environmental, infrastructure and energy consulting, engineering, and
design services 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.
Government Services and Atlantic Design Company. The Government Services
group provides a broad range of engineering 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. The Atlantic Design Company 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.
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; energy management; warehousing and
distribution; project and construction management; and skilled craft support
services.
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.
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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 shares of Ogden
Common Stock and 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.
OGDEN PREFERRED STOCK
The minimum dividend rate payable with respect to 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
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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 therefor in respect of all shares of Series A
Preferred Stock then outstanding, then no dividends 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 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.
Each holder of Series A Preferred Stock is entitled to one-half vote for
each share of Series A Preferred Stock issued and outstanding and held in such
record holder's name. The holders of Series A Preferred Stock are also entitled
to 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 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 and to continue until all dividends in
default are paid.
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 entitles the registered holder under certain
circumstances 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 adjustment. 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 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 the Board of Directors of Ogden) 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)
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<PAGE>
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 certificate.
The Rights Agreement provides that, until the Distribution Date, the Rights
will be transferred with and only with the Ogden Common Stock. New Ogden Common
Stock certificates issued after the record date for the Rights upon transfer or
new issuance of the Ogden Common Stock will contain a notation incorporating the
Rights Agreement by reference. Until the Distribution Date, the surrender for
transfer of any of the Ogden Common Stock certificates 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 the Ogden Common Stock or subdivision, combination or
reclassification of the 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 the 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 would 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), would 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, appropriately adjusted to reflect any
stock split, stock dividend or similar transaction occurring after the date
hereof.
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 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.
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-
48
<PAGE>
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 (payable in cash, shares of Common Stock or
other consideration), appropriately adjusted to reflect any stock split, stock
dividend or similar transaction occurring after the date of the Rights Agreement
(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, no 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
deemed 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).
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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 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 extraordinary
circumstances under which dividends have not been paid for a prescribed period
of time. In these situations, holders of Preferred Stock receive the right to
elect no more than two directors. Once such dividends are paid, however, holders
of Preferred Stock are divested of the right to elect two directors and regain
their original voting rights. See "Description of Ogden's Capital 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.
The OPI Bylaws and the Ogden Certificate and Bylaws provide indemnity for
their respective directors to the fullest extent permitted by Delaware law.
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PREFERRED STOCK
Both the OPI Certificate and the Ogden Certificate authorize their
respective directors to issue, without stockholder approval, preferred stock,
and 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 shares of Series A Preferred
Stock of Ogden issued and outstanding. The Ogden Certificate requires approval
of the holders of at least two-thirds of each series of preferred stock then
outstanding before Ogden may undertake certain transactions affecting the
preferences, rights and powers of outstanding 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. As described
above, in certain circumstances, holders of Preferred Stock vote as a separate
class for the election of directors. Dividends upon the preferred stock of Ogden
are cumulative and must be declared and paid before any dividends 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, 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.
EXTRAORDINARY EVENTS
The Ogden Certificate requires an affirmative vote of the holders of
two-thirds of the total shares of Ogden stock then outstanding and entitled to
vote before Ogden may consolidate or merge with another corporation or before
any sale, lease, exchange, or transfer of all or substantially all of the assets
of Ogden. The OPI Certificate requires an affirmative vote of the holders of
two-thirds of the shares of outstanding OPI Common Stock 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 this
provision.
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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 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: the
prohibition on cumulative voting for directors; the minimum and maximum number
of directors and the requirement of a classified board; and the requirement that
holders of Ogden Common Stock are entitled to one vote per share.
The OPI Certificate provides that the following provisions 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 with 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 a 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. 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. The text of Section 262 of the DGCL is
reproduced in full as Exhibit C hereto. 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. Approval and effectiveness of the Appraisal
Rights Amendment is, under the Merger Agreement, a condition to consummation of
the Merger. 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
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Delaware in accordance with the DGCL. See "The Merger--Background of the
Merger," "-- Litigation Relating to the Merger" and "--Appraisal Rights."
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. For a description 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 two-thirds 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.
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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
A-1
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
----
<S> <C> <C> <C>
I. THE MERGER
SECTION 1.1 The Merger........................................................... A-4
SECTION 1.2 Effective Time of the Merger......................................... A-4
<CAPTION>
II. THE SURVIVING CORPORATION
<S> <C> <C> <C>
SECTION 2.1 Certificate of Incorporation......................................... A-5
SECTION 2.2 Bylaws............................................................... A-5
SECTION 2.3 Board of Directors; Officers......................................... A-5
<CAPTION>
III. CONVERSION OF SHARES
<S> <C> <C> <C>
SECTION 3.1 Exchange Ratio....................................................... A-5
SECTION 3.2 Exchange of Shares; Responsibility for Payments...................... A-6
SECTION 3.3 Dividends; Transfer Taxes............................................ A-6
SECTION 3.4 No Fractional Shares................................................. A-7
SECTION 3.5 Closing of the Company's Transfer Books.............................. A-7
SECTION 3.6 Closing.............................................................. A-7
<CAPTION>
IV. REPRESENTATIONS AND WARRANTIES OF PARENT
<S> <C> <C> <C>
SECTION 4.1 Organization and Qualification....................................... A-7
SECTION 4.2 Capitalization....................................................... A-8
SECTION 4.3 Authority Relative to this Agreement................................. A-8
SECTION 4.4 Governmental Approvals............................................... A-8
SECTION 4.5 No Violations........................................................ A-8
SECTION 4.6 Reports and Financial Statements..................................... A-8
SECTION 4.7 Absence of Certain Changes or Events................................. A-9
SECTION 4.8 Litigation........................................................... A-9
SECTION 4.9 Information in Disclosure Documents, Registration Statements, Etc.... A-9
SECTION 4.10 No Brokers........................................................... A-9
SECTION 4.11 Reorganization....................................................... A-10
SECTION 4.12 Compliance with Law.................................................. A-10
SECTION 4.13 No Violation of Rights Agreement..................................... A-10
<CAPTION>
V. REPRESENTATIONS AND WARRANTIES OF THE COMPANY
<S> <C> <C> <C>
SECTION 5.1 Organization and Qualification....................................... A-10
SECTION 5.2 Capitalization....................................................... A-10
SECTION 5.3 Subsidiaries......................................................... A-11
SECTION 5.4 Authority Relative to this Agreement................................. A-11
SECTION 5.5 Governmental Approvals............................................... A-11
SECTION 5.6 No Violations........................................................ A-11
SECTION 5.7 Reports and Financial Statements..................................... A-11
SECTION 5.8 Absence of Certain Changes or Events................................. A-12
SECTION 5.9 Litigation........................................................... A-12
SECTION 5.10 Compliance with Law.................................................. A-12
SECTION 5.11 Information in Disclosure Documents, Registration Statements, Etc.... A-12
SECTION 5.12 Employee Benefit Plans; ERISA........................................ A-13
SECTION 5.13 Antitakeover Statute Inapplicable.................................... A-13
</TABLE>
A-2
<PAGE>
<TABLE>
<CAPTION>
PAGE
----
<S> <C> <C> <C>
SECTION 5.14 Company and Special Committee Action; Fairness Opinion............... A-13
SECTION 5.15 Vote Required........................................................ A-13
SECTION 5.16 No Brokers........................................................... A-13
SECTION 5.17 Reorganization....................................................... A-13
<CAPTION>
VI. REPRESENTATIONS AND WARRANTIES REGARDING SUB
<S> <C> <C> <C>
SECTION 6.1 Organization......................................................... A-14
SECTION 6.2 Capitalization....................................................... A-14
SECTION 6.3 Authority Relative to this Agreement................................. A-14
<CAPTION>
VII. CONDUCT OF BUSINESS PENDING THE MERGER
<S> <C> <C> <C>
SECTION 7.1 Conduct of Business by the Company Pending the Merger................ A-14
SECTION 7.2 Conduct of Business by Parent Pending the Merger..................... A-15
SECTION 7.3 Conduct of Business of Sub........................................... A-15
<CAPTION>
VIII. ADDITIONAL AGREEMENTS
<S> <C> <C> <C>
SECTION 8.1 Access and Information............................................... A-15
SECTION 8.2 Registration Statement/Proxy Statement............................... A-16
SECTION 8.3 Stockholders' Meeting................................................ A-16
SECTION 8.4 Compliance with the Securities Act................................... A-16
SECTION 8.5 Stock Exchange Listing............................................... A-17
SECTION 8.6 Director and Officer Indemnification................................. A-17
SECTION 8.7 Fees and Expenses.................................................... A-17
SECTION 8.8 Publicity............................................................ A-17
SECTION 8.9 Additional Agreements................................................ A-17
<CAPTION>
IX. CONDITIONS PRECEDENT
<S> <C> <C> <C>
SECTION 9.1 Conditions to Each Party's Obligation to Effect the Merger........... A-17
SECTION 9.2 Conditions to Obligation of the Company to Effect the Merger......... A-18
SECTION 9.3 Conditions to Obligations of Parent and Sub to Effect the Merger..... A-19
<CAPTION>
X. TERMINATION, AMENDMENT AND WAIVER
<S> <C> <C> <C>
SECTION 10.1 Termination.......................................................... A-20
SECTION 10.2 Effect of Termination................................................ A-20
SECTION 10.3 Amendment............................................................ A-20
SECTION 10.4 Waiver............................................................... A-20
<CAPTION>
XI. GENERAL PROVISIONS
<S> <C> <C> <C>
SECTION 11.1 Non-Survival of Representations, Warranties and Agreements........... A-21
SECTION 11.2 Notices.............................................................. A-21
SECTION 11.3 Subsidiaries......................................................... A-21
SECTION 11.4 Interpretation....................................................... A-22
SECTION 11.5 Company and Board Action............................................. A-22
SECTION 11.6 Miscellaneous........................................................ A-22
</TABLE>
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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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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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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. Section 3 of the Restated Certificate of Incorporation shall be
revised to add the following Section 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 Section 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 Section 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 , 1994
Special Committee of the Board of Directors
Ogden Projects, Inc.
40 Lane Road
Fairfield, NJ 07007-2615
[ FORM OF OPINION TO BE FILED BY AMENDMENT ]
D-1
<PAGE>
OGDEN PROJECTS, INC.--PROXY
THIS PROXY IS SOLICITED BY 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 A.M. (local time) on , December , 1994 on the matters
as described in Proposals 1 and 2 set forth on the reverse of this proxy and at
any and all adjournments thereof.
A majority of such attorneys as shall be present and shall act at said
meeting, or any of them (or 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
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>
This Proxy, when properly executed, will be voted in the manner PLEASE MARK
directed herein by the undersigned shareholder. If no such /X/ YOUR VOTES
directions are given with respect to all or some items, AS THIS
as to such items, the shares represented by the Proxy
will be voted FOR the Proposal or Proposals.
- -------------
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
/ / / / / /
Signature(s): .................................... Date: ....................
Note: Please sign as name appears hereon. Joint owners should each sign. When
signing as attorney, executor, administrator, trustee or guardian, please
give full title as such.
<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 provide generally that the Registrant will
indemnify its present and past directors to the fullest extent permitted by the
laws of Delaware as they may exist from time to time. Directors and officers of
the Registrant and its subsidiaries are indemnified generally against expenses
actually and reasonably incurred in connection with proceedings, whether civil
or criminal, except that the Registrant shall not indemnify any officer or
director if that person shall have been adjudged to be liable to the Registrant
unless and only to the extent that the Court of Chancery of the State of
Delaware or the court in which such action or suit was brought determines that,
despite the adjudication of liability but in view of all the circumstances of
the case, such person is fairly and reasonably entitled to indemnity for such
expenses which the Court of Chancery of the State of Delaware or such other
court shall deem proper.
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 set forth in the Registrant's Bylaws. The
Registrant's Bylaws also provide that indemnification thereunder is not
exclusive, and the Registrant may agree to indemnify any person as provided
therein.
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 certain breaches of their
fiduciary duties. The provision does 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 Registrant maintains 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, 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 -- Form of Appraisal Rights Amendment to Restated Certificate of Incorporation (included as Exhibit B
to the proxy statement/prospectus contained herein)
3.3 -- 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 Common Stock.
8 * -- Tax Opinion of Cleary, Gottlieb, Steen & Hamilton (contained in opinion filed as Exhibit 5).
10 -- Form of Indemnification Agreement dated August 31, 1994, between OPI and each member of the Special
Committee.
23.1 -- Consent of Deloitte & Touche LLP.
23.2 * -- Consent of Cleary, Gottlieb, Steen & Hamilton (contained in opinion filed as Exhibit 5).
</TABLE>
(b) Not applicable.
(c) Not applicable.
* To be filed by amendment
ITEM 22. UNDERTAKINGS.
The undersigned Registrant hereby undertakes:
(1) 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.
(2) 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.
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<PAGE>
This includes information contained in documents filed subsequent to the
effective date of the registration statement through the date of responding
to the request.
(3) 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.
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.
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 26th day of October, 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 Director October 26, 1994
................................................
Ralph E. Ablon
/s/ R. RICHARD ABLON President, Chief Executive Officer October 26, 1994
................................................ and Director
R. Richard Ablon
/s/ CONSTANTINE G. CARAS Executive Vice President, Chief October 26, 1994
................................................ Administrative Officer and
Constantine G. Caras Director
/s/ PHILIP G. HUSBY Senior Vice President and Chief October 26, 1994
................................................ Financial Officer (Chief Financial
Philip G. Husby Officer)
/s/ ROBERT M. DIGIA Vice President, Controller and Chief October 26, 1994
................................................ Accounting Officer (Chief
Robert M. DiGia Accounting Officer)
/s/ DAVID M. ABSHIRE Director October 26, 1994
................................................
David M. Abshire
/s/ NORMAN G. EINSPRUCH Director October 26, 1994
................................................
Norman G. Einspruch
/s/ ATTALLAH KAPPAS Director October 26, 1994
................................................
Attallah Kappas
/s/ TERRY ALLEN KRAMER Director October 26, 1994
................................................
Terry Allen Kramer
/s/ MARIA P. MONET Director October 26, 1994
................................................
Maria P. Monet
................................................ Director
Judith D. Moyers
/s/ HOMER A. NEAL Director October 26, 1994
................................................
Homer A. Neal
/s/ STANFORD S. PENNER Director October 26, 1994
................................................
Stanford S. Penner
/s/ FREDERICK SEITZ Director October 26, 1994
................................................
Frederick Seitz
/s/ ROBERT E. SMITH Director October 26, 1994
................................................
Robert E. Smith
/s/ ABRAHAM ZALEZNIK Director October 26, 1994
................................................
Abraham Zaleznik
</TABLE>
II-4
<PAGE>
INDEX TO EXHIBITS
<TABLE><CAPTION>
EXHIBITS
- -----------
<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 Common Stock.
8 * -- Tax Opinion of Cleary, Gottlieb, Steen & Hamilton (contained in opinion filed as Exhibit 5).
10.1 -- Form of Appraisal Rights Amendment to 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.
23.1 -- Consent of Deloitte & Touche LLP.
23.2 * -- Consent of Cleary, Gottlieb, Steen & Hamilton (contained in opinion filed as Exhibit 5).
</TABLE>
* To be filed by amendment
Exhibit 3
BY-LAWS
OF
OGDEN CORPORATION
(As amended through September 22, 1994)
Section 1. In addition to its principal office in the
State of Delaware, Ogden Corporation (the "Corporation") may also
have offices at such other places within or without the State of
Delaware as the Board of Directors shall from time to time
determine.
Section 2. Meetings of the stockholders and meetings of
the Board of Directors may be held at any place or places within
or without the State of Delaware.
Section 3. The Annual Meeting of Stockholders shall be
held on such date and at such time and place as may be fixed by
the Board and stated in the notice of the meeting, for the
purpose of electing directors and for the transaction of any such
other business as is properly brought before the meeting in
accordance with these By-laws. To be properly brought before an
Annual Meeting occurring subsequent to the Annual Meeting held in
1988, business must be either (i) specified in the notice of
Annual Meeting (or any supplement thereto) given by or at the
direction of the Board, (ii) otherwise properly brought before
the Annual Meeting by or at the direction of the Board, or (iii)
otherwise properly brought before the Annual Meeting by a
stockholder. In addition to any other applicable requirements,
for business to be properly brought before an Annual Meeting by a
stockholder, the stockholder must have given timely notice
thereof in writing to the Secretary of the Corporation. To be
timely, a stockholder's notice must be delivered to or mailed and
received at the principal executive offices of the Corporation,
not less than 50 days nor more than 75 days prior to the meeting;
provided, however, that in the event that less than 65 days'
notice or prior public disclosure of the date of the Annual
Meeting is given or made to stockholders, notice by the
stockholder to be timely must be so received not later than the
close of business on the fifteenth day following the day on which
such notice of the date of the Annual Meeting was mailed or such
public disclosure was made, whichever first occurs. A
stockholder's notice to the Secretary shall set forth as to each
matter the stockholder proposes to bring before the Annual
Meeting (i) a brief description of the business desired to be
brought before the Annual Meeting and the reasons for conducting
such business at the Annual Meeting, (ii) the name and record
address of the stockholder proposing such business, (iii) the
class, series and number of shares of the Corporation's stock
which are beneficially owned by the stockholder, and (iv) any
material interest of the stockholder in such business.
Notwithstanding anything in the By-laws to the
<PAGE>
contrary, no business shall be conducted at the Annual Meeting
except in accordance with the procedures set forth in this
Section 3, provided, however, that nothing in this Section 3
shall be deemed to preclude discussion by any stockholder of any
business properly brought before the Annual Meeting. The Chairman
of an Annual Meeting shall, if the facts warrant, determine and
declare to the Annual Meeting that business was not properly
brought before the Annual Meeting in accordance with the
provisions of this Section 3, and if he should so determine, he
shall so declare to the Annual Meeting and any such business not
properly brought before the meeting shall not be transacted.
Written notice of the Annual Meeting stating the place, date and
hour of the meeting and the purpose or purposes for which the
meeting is called shall be given to each stockholder entitled to
vote at such meeting not less than ten nor more than sixty days
before the date of the meeting.
Section 4. (Deleted. Related to voting rights of a class
of Preferred Stock no longer authorized or issued).
Section 5. Unless otherwise prescribed by law or by the
Certificate of Incorporation, special meetings of the
stockholders, for any purpose or purposes, may be held upon call
of the Chairman of the Board of Directors, the Vice Chairman of
the Board of Directors or a majority of the Board of Directors.
Special meetings of stockholders may not be called by any other
person or persons. Written notice of a special meeting stating
the place, date and hour of the meeting and the purpose or
purposes for which the meeting is called shall be given to each
stockholder entitled to vote at such meeting not less than ten
nor more than sixty days before the date of the meeting.
Section 6. Only persons who are nominated in accordance
with the following procedures shall be eligible for election as
directors at any meeting of stockholders occurring subsequent to
the Annual Meeting of Stockholders held in 1988. Nominations of
persons for election to the Board of Directors of the Corporation at
the Annual Meeting may be made at such meeting by or at the
direction of the Board of Directors, by any committee or persons
appointed by the Board or by any stockholder of the Corporation
entitled to vote for the election of directors at the meeting who
complies with the notice procedures set forth in this Section 6.
Such nominations, other than those made by or at the direction of
the Board, shall be made pursuant to timely notice in writing to
the Secretary of the Corporation. To be timely, a stockholder's
notice must be delivered to or mailed and received at the
principal executive offices of the Corporation not less than 50
days or more than 75 days prior to the meeting; provided,
however, that in the event that less than 65 days' notice or
prior public disclosure of the date of the meeting is given or
made to stockholders, notice by the stockholder to be timely must
be so received not later than the close of business on the
fifteenth day following the day on which such notice of the date
of the meeting was mailed or such public
2
<PAGE>
disclosure was made, whichever first occurs. Such stockholder's
notice to the Secretary shall set forth (i) as to each person
whom the stockholder proposes to nominate for election or
reelection as a director, (a) the name, age, business address and
residence address of the person, (b) the principal occupation or
employment of the person, (c) the class, series and number of
shares of capital stock of the Corporation which are beneficially
owned by the person, and (d) any other information relating to
the person that is required to be disclosed in solicitations of
proxies for election of directors pursuant to the Rules and
Regulations of the Securities and Exchange Commission under
Section 14 of the Securities Exchange Act of 1934, as amended;
and (ii) as to the stockholder giving the notice (a) the name and
record address of the stockholder and (b) the class, series and
number of shares of capital stock of the Corporation which are
beneficially owned by the stockholder. The Corporation may
require any proposed nominee to furnish his written consent to
serve if elected and such other information as may reasonably be
required by the Corporation to determine the eligibility of such
proposed nominee to serve as a director of the Corporation. No
person shall be eligible for election as a director of the
Corporation unless nominated in accordance with the procedures
set forth herein. The Chairman of the meeting shall, if the facts
warrant, determine and declare to the meeting that a nomination
was not made in accordance with the foregoing procedure, and if
he should so determine, he shall so declare to the meeting and
the defective nomination shall be disregarded.
Section 7. The holders of a majority of the stock of the
Corporation having voting power present in person or by proxy
shall constitute a quorum, but less than a quorum shall have
power to adjourn any meeting from time to time without notice.
Except as aforesaid, except as provided in the Certificate of
Incorporation, and except as otherwise provided by law, a
majority of a quorum at any meeting of stockholders shall have
power to act.
Section 8. At every meeting Of stockholders each
stockholder entitled to vote thereat may vote and otherwise act
in person or by proxy; but no proxy shall be voted upon more than
three (3) years after its date unless such proxy provides for a
longer period.
Section 9. At least ten days before each election of
directors a complete list, arranged in alphabetical order, of the
stockholders entitled to vote at the election shall be prepared
and filed in the office where the election is to be held and
shall, during the usual hours of business, for said ten days, and
during the election, be open to the examination of any
stockholder.
Section 10. The Board of Directors may, before any meeting
of stockholders for the election of directors, appoint two
inspectors of election to serve at such election. If they fail to
make such an appointment or if their appointees, or either of
them, fail to
3
<PAGE>
appear at such meeting, the Chairman of the meeting may appoint
inspectors or any inspector of election to act at that election.
Section 11. Certificates of stock shall be of such form
and device as the Board of Directors may elect and shall be
signed by the Chairman of the Board of Directors, the President
or a Vice President and the Treasurer or an Assistant Treasurer
or the Secretary or an Assistant Secretary, but where any such
certificate is signed by a transfer agent or an assistant
transfer agent or transfer clerk acting on behalf of the
Corporation or by a registrar, the signatures of any such
officers of the Corporation may be facsimiles, engraved or
printed.
Section 12. The stock of the Corporation shall be
transferable or assignable only on the books of the Corporation
by the holders in person, or by attorney, on the surrender of the
certificates therefor. The Board of Directors may appoint one or
more transfer agents and registrars of the stock.
Section 13. The Board of Directors shall have the power to
close the stock transfer books of the Corporation for a period
not exceeding fifty (50) days preceding the date of any meeting
of stockholders, or the date for payment of any dividend, or the
date for the allotment of rights, or the date when any change or
conversion or exchange of capital stock shall go into effect or
for a period not exceeding fifty days in connection with
obtaining the consents of stockholders for any purpose. In lieu
of closing the stock transfer books as aforesaid, the Board of
Directors is hereby authorized to fix in advance a date, not
exceeding fifty (50) days preceding the date of any meeting of
stockholders or the date for the payment of any dividend or the
date for the allotment of rights, or the date when any change or
conversion or exchange of capital stock shall go into effect, or
a date in connection with obtaining such consent, as a record
date for the determination of the stockholders entitled to notice
of and to vote at, any such meeting and adjournment thereof, or
entitled to receive payment of any such dividend, or to any such
allotment of rights, or to exercise the rights in respect of any
such change, conversion or exchange of capital stock, or to give
such consent, and in such case such stockholders and only such
stockholders as shall be stockholders of record on the date so
fixed shall be entitled to such notice of, and to vote at, such
meeting and any adjournment thereof or to receive payment of such
dividend, or to receive such allotment of rights, or to exercise
such rights, or to give such consent, as the case may be,
notwithstanding any transfer of any stock on the books of the
Corporation after any such record date.
Section 14. The number of directors of the Corporation
shall be sixteen (16).
Section 15. Meetings of the Board of Directors shall be
held at times fixed by resolutions of the Board or upon call of
the
4
<PAGE>
Chairman of the Board, the President, the Executive Vice
President or any two directors and may be held outside of the
State of Delaware. The Secretary or officer performing his duties
shall give reasonable notice (which shall not be less than two
(2) days) of all meetings of directors, provided that a meeting
may be held without notice immediately after the annual election,
and notice need not be given of regular meetings held at times
fixed by resolution of the Board. Meetings may be held at any
time without notice if all the directors are present or if those
not present waive notice either before or after the meeting.
Notice by mail or telegraph to the usual business or residence
address of the directors not less than the time above specified
before the meeting shall be sufficient. One-third of the
directors shall constitute a quorum.
Section 16. The Board of Directors shall have power to
authorize the payment of compensation to the directors for
services to the Corporation, including fees for attendance at
meetings of the Board of Directors, of the Executive Committee
and of other committees and to determine the amount of such
compensation and fees.
Section 16-A. (a) The Corporation shall indemnify any
person who was or is a party or is threatened to be made a party
to any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or
investigative (other than an action by or in the right of the
Corporation) by reason of the fact that he is or was a director,
officer, employee or agent of the Corporation, or is or was
serving at the request of the Corporation as a director, officer,
employee or agent of another corporation, partnership, joint
venture, trust or other enterprise against expenses (including
attorneys' fees), judgments, fines and amounts paid in settlement
actually and reasonably incurred by him in connection with such
action, suit or proceeding if he acted in good faith and in a
manner he reasonably believed to be in or not opposed to the best
interests of the Corporation, and, with respect to any criminal
action or proceeding, had no reasonable cause to believe his
conduct was unlawful. The termination of any action, suit or
proceeding by judgment, order, settlement, conviction, or upon a
plea of nolo contendere or its equivalent, shall not, of itself,
---------------
create a presumption that the person did not act in good faith
and in a manner which he reasonably believed to be in or not
opposed to the best interests of the Corporation, and, with
respect to any criminal action or proceeding, had reasonable
cause to believe that his conduct was unlawful.
(b) The Corporation shall indemnify any
person who was or is a party or is threatened to be made a party
to any threatened, pending or completed action or suit by or in
the right of the Corporation to procure a judgment in its favor
by reason of the fact that he is or was a director, officer,
employee or agent of the Corporation, or is or was serving at the
request of the
5
<PAGE>
Corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other
enterprise against expenses (including attorneys' fees) actually
and reasonably incurred by him in connection with the defense or
settlement of such action or suit if he acted in good faith and
in a manner he reasonably believed to be in or not opposed to the
best interests of the Corporation and except that no
indemnification shall be made in respect of any claim, issue or
matter as to which such person shall have been adjudged to be
liable to the Corporation unless and only to the extent that the
Court of Chancery of the State of Delaware or the court in which
such action or suit was brought shall determine upon application
that, despite the adjudication of liability but in view of all
the circumstances of the case, such person is fairly and
reasonably entitled to indemnity for such expenses which the
Court of Chancery of the State of Delaware or such other court
shall deem proper.
(c) To the extent that a director, officer,
employee or agent of a corporation has been successful on the
merits or otherwise in defense of any action, suit or proceeding
referred to in subsections (a) and (b), or in defense of any
claim, issue or matter therein, he shall be indemnified against
expenses (including attorneys' fees) actually and reasonably
incurred by him in connection therewith.
(d) Any indemnification under subsections
(a) and (b) (unless ordered by a court) shall be made by the
Corporation only as authorized in the specific case upon a
determination that indemnification of the director, officer,
employee or agent is proper in the circumstances because he has
met the applicable standard of conduct set forth in subsections
(a) and (b). Such determination shall be made (1) by the Board
of Directors by a majority vote of a quorum consisting of
directors who were not parties to such action, suit or
proceeding, or (2) if such a quorum is not obtainable, or, even
if obtainable a quorum of disinterested directors so directs, by
independent legal counsel in a written opinion, or (3) by the
stockholders.
(e) Expenses incurred in defending a civil
or criminal action, suit or proceeding shall be paid by the
corporation in advance of the final disposition of such action,
suit or proceeding upon receipt of an undertaking by or on behalf
of the director, officer, employee or agent to repay such amount
if it shall ultimately be determined that he is not entitled to
be indemnified by the Corporation as authorized in these By-laws.
(f) The indemnification and advancement of
expenses provided by this Section 16-A of the By-laws shall not
be deemed exclusive of any other rights to which those seeking
indemnification or advancement of expenses may be entitled under
any other by-law, agreement, vote of stockholders or
disinterested directors or otherwise, both as to action in his
official capacity
6
<PAGE>
and as to action in another capacity while holding such office,
and shall continue as to a person who has ceased to be a
director, officer, employee or agent and shall inure to the
benefit of the heirs, executors and administrators of such a
person.
(g) The Corporation shall have power to
purchase and maintain insurance on behalf of any person who is or
was a director, officer, employee or agent of the Corporation, or
is or was serving at the request of the Corporation as a
director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise against any
liability asserted against him and incurred by him in any such
capacity, or arising out of his status as such whether or not the
Corporation would have the power to indemnify him against such
liability under the provisions of these By-laws.
(h) Any amendment to this Section 16-A shall
not apply to any liability of a director, officer, employee or
agent arising out of a transaction or omission occurring prior to
the adoption of such amendment, but any such liability based on a
transaction or omission occurring prior to the adoption of such
amendment shall be governed by Section 16-A of the By-laws, as in
effect at the time of such transaction or omission.
Section 17. The Board of Directors, as soon as may be
practicable after the election of directors in each year, shall:
(i) appoint one of their number as Chairman of the Board, (ii)
appoint one or more of their number as President, each of whom
shall also act as the President of one of the Corporation's
operating areas, and (iii) appoint one or more Vice Presidents
and a Secretary and may appoint from time to time such other
officers, including a Treasurer, as they may deem proper. The
Chairman of the Board shall be the presiding officer of the
Corporation and shall preside at meetings of the Board of
Directors and of the shareholders. He shall have such other
powers and duties as may from time to time be conferred upon him
by the Board of Directors.
Section 18. The Chairman of the Board shall preside at all
meetings of the Board and of the Stockholders and shall have such
powers and duties as the Board may assign to him. The President
shall be the Chief Executive Officer of the Corporation and, in
the absence of the Chairman of the Board, shall preside at all
meetings of the Board and stockholders. The President shall be
the officer of the Corporation who has general and active
responsibility for the management of the business of the
Corporation, and shall be responsible for implementing all orders
and resolutions of the Board of Directors. The President shall
have such other powers and duties as presidents of corporations
usually have or as the Board assigns to him. The other officers
of the Corporation shall have such powers and duties as usually
pertain to their offices, except as modified by the Board of
Directors, and shall also have such powers and duties as may from
time to time be conferred upon them
7
<PAGE>
by the Board of Directors.
Section 19. The term of office of all officers shall be
until the next election of directors and until their respective
successors are chosen and qualified, or until they shall die or
resign, but any officer may be removed from office, without
cause, at any time by the Board of Directors. Vacancies in any
office may be filled by the Board at any meeting.
Section 20. The Board of Directors may establish an
Executive Committee, a Finance Committee and such other
committees of the Board as it may determine, and delegate to said
committees such powers and duties as it may determine by
resolution of the Board to the extent provided in the General
Corporation Law of the State of Delaware.
Section 21. The Board of Directors may select such
depositaries as they shall deem proper for the funds of the
Corporation. All checks and drafts against such deposited funds
shall be signed and countersigned by persons to be specified by
the Board of Directors.
Section 22. The corporate seal of the Corporation shall be
in such form as the Board of Directors shall prescribe.
Section 23. Either the Board of Directors or the
stockholders may alter or amend these By-laws at any meeting duly
held as above provided, the notice of which includes notice of
the proposed alteration or amendment.
8
INDEMNIFICATION AGREEMENT
AGREEMENT (this "Agreement") made and entered into this
-----
day of August, 1994 by and between Ogden Projects, Inc., a
Delaware corporation (the "Company") and William M. Batten
("Indemnitee").
WHEREAS, Odgen Corporation (the "Parent") owns approximately
84.2% of the outstanding common stock of the Company; and
WHEREAS, on June 6, 1994 the Parent made a proposal to
acquire the common stock of the Company which it does not already
own through a merger transaction; and
WHEREAS, Indemnitee is a director of the Company and a
member of the special committee of the Company's Board of
Directors (the "Special Committee") established to review,
consider and respond to the Parent's proposal and any other
proposals or amended proposals which may be received from the
Parent (the "Proposal"); and
WHEREAS, Indemnitee is entitled to indemnification and
reimbursement of certain expenses pursuant to (and subject to the
limitations provided in) the Company's By-Laws; and
WHEREAS, Indemnitee wishes to be assured to the greatest
extent reasonably practicable that he is protected against the
risks of claims and litigation which may result from the
proceedings of the Special Committee by restating Indemnitee's
entitlement to such protection under the Company's By-Laws and
clarifying the procedures and presumptions which will apply if
indemnitee seeks such protection; and
WHEREAS, the Board of Directors of the Company (the
"Board"), including the members of the Board who are not members
of the Special Committee, has determined that it is appropriate
and in the best interests of the Company and the Company's
stockholders that the Company should act to assure Indemnitee
that there will be increased certainty of such protection and
that such assurance should be provided prior to the time of any
definitive response to the Parent's proposal, in order to respect
and safeguard Indemnitee's independence in the matter; and
WHEREAS, Indemnitee is willing to continue to serve the
Company on the condition that he be so indemnified;
NOW, THEREFORE, in consideration of the premises and the
covenants contained herein, the Company and Indemnitee do hereby
covenant and agree as follows:
SECTION 1. Services by the Indemnitee. Indemnitee agrees to
--------------------------
serve as a director of the Company until his successor shall be
appointed and shall qualify and to serve as a member of the
Special Committee; provided, that Indemnitee may at any time and
<PAGE>
for any reason resign from such positions subject to any other
contractual obligation or any obligation imposed by operation of
law.
SECTION 2. Indemnification - General. The Company shall
-------------------------
indemnify and advance Expenses (as hereinafter defined) to
Indemnitee as provided in this Agreement and to the fullest
extent permitted by applicable law in effect on the date hereof
or to such extent as applicable law thereafter from time to time
may permit. This Agreement shall be effective with respect to
any Proceeding (as hereinafter defined) including, without
limitation, Proceedings which relate to acts or omissions
occurring or allegedly occurring at any time prior to the
execution of this Agreement commencing June 6, 1994. The rights
of Indemnitee provided under the preceding sentences of this
Section 2 shall include, but shall not be limited to, the rights
set forth in the other Sections of this Agreement.
SECTION 3. Proceedings Other Than Proceedings by or in the
-----------------------------------------------
Right of the Company. Indemnitee shall be entitled to the rights
--------------------
of indemnification provided in this Section 3 if, by reason of
his Corporate Status (as hereinafter defined), he is, or is
threatened to be made, a party to any threatened, pending or
completed Proceeding other than a Proceeding by or in the right
of the Company. Pursuant to this Section 3, Indemnitee shall be
indemnified against Expenses (as hereinafter defined),
judgements, penalties, fines and amounts paid in settlement
actually and reasonably incurred by him or on his behalf in
connection with such Proceeding or any other issue or matter
therein, if he acted in good faith and in a manner he reasonably
believed to be in or not opposed to the best interests of the
Company, and with respect to any criminal Proceedings had no
reasonable cause to believe his conduct was unlawful.
SECTION 4. Proceeding by or in the Right of the Company.
--------------------------------------------
Indemnitee shall be entitled to the rights of indemnification
provided in this Section 4 if, by reason of his Corporate Status,
he is, or is threatened to be made, a party to any threatened,
pending or completed Proceeding brought by or in the right of the
Company to procure a judgement in its favor. Pursuant to this
Section 4, Indemnitee shall be indemnified against Expenses
actually and reasonably incurred by him or on his behalf in
connection with such Proceeding if he acted in good faith and in
a manner he reasonably believed to be in or not opposed to the
best interests of the Company. Notwithstanding the foregoing, no
indemnification against such Expenses shall be made in respect of
any claim, issue or matter in such Proceeding as to which
Indemnitee shall have been adjudged to be liable to the Company
if applicable law prohibits such indemnification; provided,
however, that, if applicable law so permits, indemnification
against Expenses shall nevertheless be made by the Company in
such event if and only to the extent that the Court of Chancery
of the State of Delaware, or the court in which such Proceeding
shall have been brought or is pending, shall so determine.
<PAGE>
SECTION 5. Indemnification for Expenses of a Party Who is
----------------------------------------------
Wholly or Partly Successful. Notwithstanding any other provision
---------------------------
of this Agreement, to the extent that Indemnitee is, by reason of
his Corporate Status, a party to and is successful, on the merits
or otherwise, in defense of any Proceeding, he shall be
indemnified against all Expenses actually and reasonably incurred
by him or on his behalf in connection therewith. If Indemnitee
is not wholly successful in the defense of such Proceeding but is
successful on the merits or otherwise, as to one or more but less
than all claims, issues or matters in such Proceeding, the
Company shall indemnify Indemnitee against all Expenses actually
and reasonably incurred by him or on his behalf in connection
with each successfully resolved claim, issue or matter. For
purposes of this Section 5, and without limitation, the
termination of any claim, issue or matter in such a Proceeding by
dismissal, with or without prejudice, shall be deemed to be a
successful result as to such claim, issue or matter.
SECTION 6. Indemnification of Expenses of a Witness.
----------------------------------------
Notwithstanding any other provision of this Agreement, to the
extent that Indemnitee is, by reason of his Corporate Status, a
witness in any Proceeding, he shall be indemnified against all
Expenses actually and reasonably incurred by him or on his behalf
in connection therewith.
SECTION 7. Advancement of Expenses. The Company shall
-----------------------
advance all Expenses reasonably incurred by or on behalf of
Indemnitee in connection with any Proceeding within 30 days after
the receipt by the Company of a statement or statements from
Indemnitee requesting such advance or advances from time to time,
whether prior to or after final disposition of such Proceeding.
Such statement or statements shall reasonably evidence the
Expenses incurred by Indemnitee and shall include or be preceded
or accompanied by an undertaking by or on behalf of the
Indemnitee to repay any Expenses advanced if it shall ultimately
be determined that Indemnitee is not entitled to be indemnified
against such Expenses.
SECTION 8. Procedure for Determination of Entitlement to
---------------------------------------------
Indemnification.
---------------
(a) To obtain indemnification under this Agreement,
Indemnitee shall submit to the Company a written request,
including therein or therewith such documentation and information
as is reasonably available to Indemnitee and is reasonably
necessary to determine whether and to what extent Indemnitee is
entitled to indemnification. The Secretary of the Company shall,
promptly upon receipt of such a request for indemnification,
advise the Board of Directors in writing that Indemnitee has
requested indemnification.
(b) Upon written request by Indemnitee for
indemnification pursuant to the first sentence of Section 8(a)
hereof, a determination, if required by applicable law, with
<PAGE>
respect to Indemnitee's entitlement thereto shall be made in the
specific case; (i) if a Change in Control (as hereinafter
defined) shall have occurred, by Independent Counsel (as
hereinafter defined) (unless Indemnitee shall request that such
determination be made by the Board of Directors, in which case by
the person or persons or in the manner provided for in clause
(ii) of this Section 8(b)) in a written opinion to the Board of
Directors, a copy of which shall be delivered to Indemnitee; or
(ii) if a Change of Control shall not have occurred, (A) by the
Board of Directors by a majority vote of the Disinterested
Directors (as hereinafter defined), even though less than a
quorum, or (B) if there are no Disinterested Directors, or if
such Disinterested Directors so direct, by Independent Counsel in
a written opinion to the Board of Directors, a copy of which
shall be delivered to Indemnitee; and if it is so determined that
Indemnitee is entitled to indemnification, payment to Indemnitee
shall be made within ten days after such determination.
Indemnitee shall cooperate with the person, persons or entity
making such determination with respect to Indemnitee's
entitlement to indemnification, including providing to such
person, persons or entity upon reasonable advance request any
documentation or information which is not privileged or otherwise
protected from disclosure and which is reasonably available to
Indemnitee and reasonably necessary to such determination. Any
reasonable costs or expenses (including reasonable attorney's
fees and disbursements incurred by Indemnitee in so cooperating
with the person, persons or entity making such determination)
shall be borne by the Company (irrespective of the determination
as to Indemnitee's entitlement to indemnification) and the
Company hereby indemnifies and agrees to hold Indemnitee harmless
therefrom.
(c) In the event the determination of entitlement to
indemnification is to be made by the Independent Counsel pursuant
to Section 8(b) hereof, the Independent Counsel shall be
determined as provided in this Section 8(c). The Independent
Counsel shall be selected by Indemnitee (unless Indemnitee shall
request that such selection be made by the Board of Directors, in
which event the Board of Directors shall so select), and
Indemnitee shall give written notice to the Company advising it
of the identity of the Independent Counsel so selected. In
either event, Indemnitee or the Company, as the case may be,
within seven days after such written notice of selection shall
have been given, may deliver to the Company or Indemnitee, as the
case may be, a written objection to such selection. If such
objection to Independent Counsel selected by the Indemnitee is
made by the Company (or if such objection to Independent
Counsel selected by the Board of Directors at the request of the
Indemnitee is made by the Indemnitee), the Indemnitee may select,
and give the Company written notice of selection of, another
Independent Counsel, in which event the Company may, within seven
days after such written notice of selection shall have been
given, deliver to the Indemnitee a written objection to such
selection. Any objection hereunder to Independent Counsel may be
<PAGE>
asserted only on the grounds that the Independent Counsel so
selected does not meet the requirements of "Independent Counsel"
as defined in Section 17 of this Agreement, and the objection
shall set forth with particularity the factual basis of such
assertion. If any such written objections are made under this
Section 8(c), the Independent Counsel so selected may not serve
as Independent Counsel unless and until a court has determined
that such objection is without merit. If, within 20 days after
submission by Indemnitee of a written request for indemnification
pursuant to Section 8(a) hereof, no Independent Counsel shall
have been selected and not objected to, either the Company or
Indemnitee may petition the Court of Chancery of the State of
Delaware or any other court of competent jurisdiction for
resolution of any objection which shall have been made by the
company of Indemnitee to the other's selection of Independent
Counsel and/or for the appointment of Independent Counsel under
Section 8(b) hereof. The Company shall pay all reasonable fees
and expenses incident to the procedures of this Section 8(c),
regardless of the manner in which such Independent Counsel was
selected or appointed. Upon the due commencement of any judicial
proceeding pursuant to Section 10(a) of this Agreement,
Independent Counsel shall be discharged and relieved of any
further responsibility in such capacity (subject to the
applicable standards of professional conduct then prevailing).
SECTION 9. Presumption and Effect of Proceedings.
-------------------------------------
(a) In making any determination with respect to
entitlement to indemnification hereunder, the person, persons or
entity making such determination shall in each case presume that
Indemnitee is entitled to indemnification under this Agreement if
Indemnitee has submitted a request for indemnification in
accordance with Section 8(a) of this Agreement, and the Company
shall in each case have the burden of proof to overcome that
presumption in connection with the making by any person, persons
or entity of any determination contrary to that presumption.
(b) If the determination of whether Indemnitee is
entitled to indemnification is to be made (i) by the Board of
Directors pursuant to Section 8(b) hereof and no determination
shall have been made within 60 days after receipt by the Company
of the request therefor, or (ii) by Independent Counsel pursuant
to Section 8(b) hereof and no determination shall have been made
by Independent Counsel within 60 days after the appointment of
Independent Counsel pursuant to Section 8(c) hereof, then in
either such case, if such Indemnified Person shall have complied
with his obligations under Section 8(b), the requisite
determination of entitlement to indemnification shall be deemed
to have been made in favor of Indemnitee and Indemnitee shall be
entitled to such indemnification, absent a prohibition of such
indemnification under applicable law; provided, however, that
such 60-day period may be extended for a reasonable time, not to
exceed an additional 30 days, if the person, persons or entity
making the determination with resect to entitlement to
<PAGE>
indemnification in good faith require such additional time for
obtaining or evaluation of documentation and/or information
relating thereto.
(c) The termination of any Proceeding or of any claim,
issue or matter therein, by judgment, order, settlement or
conviction, or upon a plea of nolo contendere or its equivalent,
shall not (except as otherwise expressly provided in this
Agreement) of itself adversely affect the right of Indemnitee to
indemnification or create a presumption that Indemnitee did not
act in good faith and in a manner which he reasonably believed to
be in or not opposed to the best interests of the Company or,
with respect to any criminal Proceeding, that Indemnitee had
reasonable cause to believe that his conduct was unlawful.
SECTION 10. Remedies of Indemnitee.
----------------------
(a) In the event that (i) a determination is made
pursuant to Section 8 of this Agreement that Indemnitee is not
entitled to indemnification under this Agreement, (ii)
advancement of Expenses is not timely made pursuant to Section 7
of this Agreement, (iii) the determination of entitlement to
indemnification is to be made by Independent Counsel pursuant to
Section 8(b) of this Agreement and such determination shall not
have been made and delivered in a written opinion within the time
period specified in Section 9(b), (iv) payment of indemnification
is not made pursuant to Section 6 of this Agreement within ten
days after receipt by the Company of a written request therefor,
together with a statement reasonably evidencing the Expenses
incurred by Indemnitee, or (v) payment of indemnification is not
made within ten days after a determination has been made pursuant
to Section 8 or deemed to have been made pursuant to Section 9 of
this Agreement, Indemnitee shall be entitled to an adjudication
in the Court of Chancery of the State of Delaware of his
entitlement to such indemnification or advancement of Expenses.
Indemnitee shall commence such proceeding seeking an adjudication
within 180 days following the date on which Indemnitee first has
the right to commence such proceedings pursuant to this Section
10(a). The Company shall not oppose Indemnitee's right to seek
any adjudication.
(b) In the event that a determination shall have been
made pursuant to Section 8 of this Agreement that Indemnitee is
not entitled to indemnification, any judicial proceeding
commenced pursuant to this Section 10 shall be conducted in all
respects as a de novo trial on the merits and Indemnitee shall
not be prejudiced by reason of that adverse determination. In
any judicial proceeding commenced pursuant to Section 10, the
presumption shall be that Indemnitee is entitled to
indemnification and the Company shall have the burden of proving
that Indemnitee is not entitled to indemnification or advancement
of Expenses, as the case may be.
<PAGE>
(c) If a determination shall have been made or deemed
to have been made pursuant to Section 8 or 9 of this Agreement
that Indemnitee is entitled to indemnification, the Company shall
be bound by such determination in any judicial proceeding
commenced pursuant to this Section 10, absent (i) a misstatement
by Indemnitee of a material fact, or an omission of a material
fact necessary to make Indemnitee's statement not materially
misleading, in connection with the request for indemnification,
or (ii) prohibition of such indemnification under applicable law.
(d) The Company shall be precluded from asserting in
any judicial proceeding commenced pursuant to this Section 10
that the procedures and presumptions of this Agreement are not
valid, binding or enforceable and shall stipulate in any such
court that the Company is bound by all the provisions of this
Agreement.
(e) In the event Indemnitee, pursuant to this Section
10, seeks a judicial adjudication to enforce his rights under, or
to recover damages for breach of, this Agreement, Indemnitee
shall be entitled to recover from the Company, and shall be
indemnified by the Company against, any and all expenses (of the
types described in the definition of Expenses in Section 17 of
this Agreement) actually and reasonably incurred by him in such
judicial adjudication, but only if he prevails therein. If it
shall be determined in said judicial adjudication that Indemnitee
is entitled to receive part but not all of the indemnification or
advancement of expenses sought, such expenses incurred by
Indemnitee in connection with such judicial adjudication shall be
appropriately prorated.
SECTION 11. Non-Exclusivity; Survival of Rights; Insurance;
-----------------------------------------------
Subrogation.
-----------
(a) The rights of indemnification and to receive
advancement of Expenses as provided by this Agreement shall not
be deemed exclusive of any other rights to which Indemnitee may
at any time be entitled under applicable law, the Certificate of
Incorporation of the Company, the By-Laws of the Company, any
agreement, a vote of the stockholders, a resolution of directors,
or otherwise. No amendment, alteration or repeal of this
Agreement or any provision hereof shall be effective as to
Indemnitee with respect to any action of omission by Indemnitee
acting in his Corporate Status prior to such amendment,
alteration or repeal.
(b) For a period of not less than three years the
Company will cause to be maintained, to the extent reasonably
available on commercially reasonable terms, in full force and
effect insurance coverage (which coverage may be insurance
maintained by Parent) for the benefit of the Company's directors
(including Indemnitee) that is substantially equivalent in its
benefits to Indemnitee as the insurance coverage in effect on the
date of this Agreement; provided that in no event shall the
<PAGE>
Company be obligated to maintain such insurance in excess of the
amount of insurance reasonably available on commercially
reasonable terms having an annual premium of not more than 150%
of the current annual premium. To the extent that the Company
maintains an insurance policy or policies providing liability
insurance for directors, officers, employers, agents or
fiduciaries of the Company or of any other corporation,
partnership, joint venture, trust, employee benefit plan or other
enterprise which such person serves at the request of the
Company, Indemnitee shall be covered by such policy or policies
in accordance with its or their terms to the maximum extent of
the coverage available for any such director, officer, employees,
agent or fiduciary under such policy or policies.
(c) In the event of any payment under this Agreement,
the Company shall be subrogated to the extent of such payment to
all of the rights of recovery of Indemnitee, who shall execute
all papers required and take all action necessary to secure such
rights, including execution of such documents as are necessary to
enable the Company to bring suit to enforce such rights.
(d) The Company shall not be liable under this
Agreement to make any payment of amount otherwise indemnifiable
hereunder if and to the extent Indemnitee has otherwise actually
received such payment under any insurance policy, contract,
agreement or otherwise.
SECTION 12. Duration of Agreement. This Agreement shall
---------------------
continue until and terminate upon the later of:
(a) Ten years after the date that Indemnitee shall
have ceased to serve as a director of the Company; or (b) the
final termination of all pending Proceedings in respect of which
Indemnitee is granted rights of indemnification or advancement of
Expenses hereunder and of any Proceedings relating thereto
commenced by Indemnitee pursuant to Section 10 of this Agreement.
This Agreement shall be binding upon the Company and its
successors and assigns and shall inure to the benefit of
Indemnitee and his heirs, executors and administrators.
SECTION 13. Severability. If any provision or provisions of
------------
this Agreement shall be held to be invalid, illegal or
unenforceable for any reason whatsoever: (a) the validity,
legality and enforceability of the remaining provisions of this
Agreement (including without limitation, each portion of any
Section of this Agreement containing any such provision held to
be invalid, illegal or unenforceable, that is not itself invalid,
illegal or unenforceable) shall not in any way be affected or
impaired thereby; and (b) to the fullest extent possible, the
provisions of this Agreement (including, with limitation, each
portion of any Section of this Agreement containing any such
provision held to be invalid, illegal or unenforceable, that is
not itself invalid, illegal or unenforceable) shall be construed
<PAGE>
so as to give effect to the intent manifested by the provision
held invalid, illegal or unenforceable.
SECTION 14. Exception to Right of Indemnification or
----------------------------------------
Advancement of Expenses. Except as otherwise expressly provided
-----------------------
in this Agreement, Indemnitee shall not be entitled to
indemnification or advancement of Expenses under this Agreement
with respect to any Proceeding, or any claim therein, brought or
made by him against the Company or any of its directors.
SECTION 15. Identical Counterparts. This Agreement may be
----------------------
executed in one or more counterparts, each of which shall for all
purposes be deemed to be an original but all of which together
shall constitute one and the same Agreement. Only one such
counterpart signed by the party against whom enforceability is
sought need be produced to evidence the existence of this
Agreement.
SECTION 16. Headings. The Headings of the paragraphs of
--------
this Agreement are inserted for convenience only and shall not be
deemed to constitute part of this Agreement or to affect the
construction thereof.
SECTION 17. Definitions. For the purposes of this
-----------
Agreement:
(a) "Change in Control" means a change in control of
the Company occurring after the date of this Agreement of a
nature that would be subject to Item 14 of Schedule 14A of
Regulation 14A (or any similar item on any successor schedule or
form) under the Securities Exchange Act of 1934 (the "Exchange
Act"), whether or not the Company is then subject to the
reporting requirements of the Exchange Act; provided, however,
-----------------
that, without limitation, such a Change in Control shall be
deemed to have occurred if after the date of this Agreement (i)
any "person" (as such term is used in Sections 13(d) and 14(d) of
the Exchange Act) becomes the "beneficial owner" (as defined in
Rule 13d-3 under the Exchange Act), directly or indirectly, of
securities of the Company representing 20% or more of the
combined voting power of the Company's then outstanding
securities without the prior approval of at least two-thirds of
the members of the Board of Directors in office immediately prior
to such person attaining such percentage interest; (ii) the
Company is a party to a merger, consolidation, sale of assets or
other reorganization, or a proxy contest, as a consequence of
which members of the Board of Directors in office immediately
prior to such transaction or event constitute less than a
majority of the Board of Directors thereafter, (iii) during any
period of two consecutive years, individuals who at the beginning
of such period constituted the Board of Directors (including for
this purpose any new director whose election or nomination for
election by the Company's stockholders was approved by a vote of
at least two-thirds of the directors then still in office who
were directors at the beginning of such period) cease for any
<PAGE>
reason to constitute a majority of the Board of Directors; or
(iv) any merger, consolidation, acquisition or similar
transaction directly or indirectly relating to or arising out of
the Proposal is consummated.
(b) "Corporate Status" describes the status of a
person who is or at any time whether or not prior to the date of
this Agreement was a director of the Company, including such
person's status as a member of any committee of the Company's
Board of Directors.
(c) "Disinterested Director" means a director of the
Company who is not and was not a party to the Proceeding in
respect of which indemnification is sought by Indemnitee.
(d) "Expenses" shall include all reasonable attorneys'
fees, retainers, court costs, transcript costs, fees of expert
witnesses, travel expenses, duplicating costs, printing and
binding costs, telephone charges, postage, delivery service fees,
and all other disbursements or expenses of the types customarily
incurred in connection with prosecuting, defending, preparing to
prosecute or defend, investigating, or being or preparing to be a
witness in a Proceeding.
(e) "Independent Counsel" means a law firm that is
experienced in matters of corporation law and neither presently,
nor in the past five years has been retained to represent: (i)
the Company, any subsidiary of the Company or Indemnitee in any
matter material to any such party, or (ii) any other party to the
Proceeding giving rise to a claim for indemnification hereunder.
Notwithstanding the foregoing, the term "Independent Counsel"
shall not include any person who, under the applicable standards
of professional conduct then prevailing, would have a conflict of
interest in representing either the Company or Indemnitee in an
action to determine Indemnitee's rights under this Agreement.
(f) "Proceeding" includes any action, suit,
arbitration, alternate dispute resolution mechanism,
investigation, administrative hearing or any other proceeding
(whether civil, criminal, administrative or investigative),
directly or indirectly relating to or arising out of the Proposal
or any action or inaction of the Special Committee, except one
initiated by an Indemnitee pursuant to Section 10 of this
Agreement to enforce his rights under this Agreement.
SECTION 18. Agreement; Modification and Waiver. This
----------------------------------
Agreement supersedes in its entirety any existing or prior
agreement between the Company and the Indemnitee pertaining to
the subject matter of indemnification and insurance therefor. No
supplement, modification or amendment of this Agreement shall be
binding unless executed in writing by both of the parties hereto.
No waiver of any of the provisions of this Agreement shall be
deemed or shall constitute a waiver of any other provisions
<PAGE>
hereof (whether or not similar) nor shall such waiver constitute
a continuing waiver.
SECTION 19. Notice by Indemnitee. Indemnitee agrees
--------------------
promptly to notify the Company in writing upon being served with
any summons, citation, subpoena, complaint, indictment,
information or other document relating to any Proceeding or
matter which may be subject to indemnification or advancement of
Expenses covered hereunder.
SECTION 20. Notices. All notices, requests, demands and
-------
other communications hereunder shall be in writing and shall be
deemed to have been duly given (i) when delivered by hand and
receipted for by the party to whom said notice or other
communication shall have been directed, or (ii) if mailed by
certified or registered mail with postage prepaid, on the third
business day after the date on which it is mailed:
(a) If to Indemnitee, to the address set forth under
the signature of Indemnitee below.
(b) If to the Company, to: Ogden Projects, Inc.
40 Lane Road
Fairfield, NJ 07007
Attention:General
Counsel
or to such other address as may have been furnished by a party to
the other.
SECTION 21. Governing Law. The parties agree that this
-------------
Agreement shall be governed by, and construed and enforced in
accordance with, the laws of the State of Delaware without
application of the conflict of laws principles thereof.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement on the date and year first above written.
COMPANY:
-------
OGDEN PROJECTS, INC.
By:
------------------------------
Name:
Title:
INDEMNITEE:
----------
By:
-------------------------------
Name:
Address:
EXHIBIT 23.1
INDEPENDENT AUDITORS' CONSENT
OGDEN CORPORATION:
We consent to the incorporation by reference in this Registration Statement
of Ogden Corporation on Form S-4 of our reports 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 us under the heading "Experts" in the Prospectus, which is part of
this Registration Statement.
We also consent to the incorporation by reference in this Registration
Statement of Ogden Corporation on Form S-4 of our reports 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 us under the heading "Experts" in the Prospectus, which is part of
this Registration Statement.
DELOITTE & TOUCHE LLP
New York, New York
October 25, 1994
