<PAGE> 1
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
----------------------------------
FORM 10-Q
(MARK ONE)
X QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d)
------- OF THE SECURITIES AND EXCHANGE ACT OF 1934
For the quarterly period ended March 31, 1995
OR
------- TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d)
OF THE SECURITIES EXCHANGE ACT OF 1934
Commission file number 1-9654
OHM CORPORATION
(Exact name of registrant as specified in its charter)
OHIO 34-1503050
(State of Incorporation) (I.R.S. Employer Identification Number)
16406 U.S. ROUTE 224 EAST, FINDLAY, OH. 45840
(Address of principal executive offices) (Zip Code)
(419) 423-3529
(Registrant's telephone number, including area code)
Indicate by check whether the registrant (1) has filed all
reports required to be filed by Section 13 or 15(d) of the Securities
Exchange Act of 1934 during the preceding 12 months (or for such shorter
period that the registrant was required to file such reports), and (2) has
been subject to filing such requirement for the past 90 days. Yes X No
--- ---
The number of shares of Common Stock outstanding on April 30,
1995 was 16,649,265.
<PAGE> 2
OHM CORPORATION
INDEX TO QUARTERLY REPORT
ON FORM 10-Q
FOR THE QUARTER ENDED MARCH 31, 1995
PART I
FINANCIAL INFORMATION
<TABLE>
<CAPTION>
Page
Number
------
<S> <C> <C>
Item 1. Financial Statements
Consolidated Balance Sheets as of March 31, 1995 (Unaudited)
and December 31, 1994 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Consolidated Statements of Income (Unaudited) for the Three Months
Ended March 31, 1995 and 1994 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Consolidated Statements of Cash Flows (Unaudited) for the Three Months
Ended March 31, 1995 and 1994 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Notes to Consolidated Financial Statements (Unaudited) . . . . . . . . . . . . . . . . . . 4
Independent Accountants' Review Report . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Item 2. Management's Discussion and Analysis of Financial Condition and Results of Operations . . 9
PART II
OTHER INFORMATION
Item 1. Legal Proceedings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Item 6. Exhibits and Reports on Form 8-K . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Signatures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
</TABLE>
<PAGE> 3
Item 1. FINANCIAL STATEMENTS
<TABLE>
OHM CORPORATION
CONSOLIDATED BALANCE SHEETS
(In Thousands, Except Share Data)
<CAPTION>
March 31, December 31,
1995 1994
---------- ----------
ASSETS (Unaudited)
<S> <C> <C>
Current Assets:
Cash and cash equivalents . . . . . . . . . . . . . . . . . . . . . . . . . . $ 2,287 $ 4,930
Accounts receivable . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88,569 86,663
Costs and estimated earnings on contracts in process in excess of billings . . 64,343 65,437
Materials and supply inventory, at cost . . . . . . . . . . . . . . . . . . . 10,670 10,099
Prepaid expenses and other assets . . . . . . . . . . . . . . . . . . . . . . 9,344 7,252
Deferred income taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6,437 6,744
Refundable income taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . 137 205
---------- ----------
181,787 181,330
-------- --------
Property and Equipment, net . . . . . . . . . . . . . . . . . . . . . . . . . . . 57,671 57,240
--------- ---------
Other Noncurrent Assets:
Deferred debt issuance and financing costs . . . . . . . . . . . . . . . . . . 2,344 2,381
Investments in affiliated company . . . . . . . . . . . . . . . . . . . . . . 23,435 23,352
Deferred income taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . 336 336
Other assets . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8,162 7,907
--------- ---------
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34,277 33,976
--------- ---------
Total Assets . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $273,735 $272,546
======== ========
LIABILITIES AND SHAREHOLDERS' EQUITY
Current Liabilities:
Accounts payable . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $ 43,110 $ 47,936
Billings on contracts in process in excess of costs and estimated earnings . . 579 40
Accrued compensation and related taxes . . . . . . . . . . . . . . . . . . . . 3,259 3,874
Federal, state and local taxes . . . . . . . . . . . . . . . . . . . . . . . . 56 102
Other accrued liabilities . . . . . . . . . . . . . . . . . . . . . . . . . . 9,880 9,652
Current portion of noncurrent liabilities . . . . . . . . . . . . . . . . . . 3,645 3,262
--------- ----------
60,529 64,866
-------- ---------
Noncurrent Liabilities:
Long-term debt . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 121,411 127,279
Capital leases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 86 92
Pension agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 912 906
---------- -----------
122,409 128,277
-------- --------
Deferred Income Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2,590 2,483
--------- ---------
Shareholders' Equity:
Preferred stock, $10.00 par value, 2,000,000 shares
authorized; none issued and outstanding . . . . . . . . . . . . . . . . . . - -
Common stock, $.10 par value, 50,000,000 shares authorized;
Shares issued: 1995 - 16,848,089; 1994 - 15,848,089 . . . . . . . . . . . 1,684 1,584
Additional paid-in capital . . . . . . . . . . . . . . . . . . . . . . . . . . 73,194 63,294
Retained earnings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15,885 14,598
-------- ---------
90,763 79,476
Less Treasury Stock, 1995 - 211,624; 1994 - 211,624 . . . . . . . . . . . . . . . (2,556) (2,556)
--------- ----------
88,207 76,920
-------- ---------
Total Liabilities and Shareholders' Equity . . . . . . . . . . . . . . . . . $273,735 $272,546
======== ========
<FN>
The accompanying notes are an integral part of these consolidated financial
statements.
</TABLE>
1
<PAGE> 4
OHM CORPORATION
CONSOLIDATED STATEMENTS OF INCOME
(In Thousands, Except Per Share Data)
<TABLE>
<CAPTION>
Three Months Ended
March 31,
--------------------
1995 1994
-------- --------
(Unaudited)
<S> <C> <C>
Gross Revenues . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $80,217 $75,031
Less direct subcontract costs . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23,668 23,220
------- -------
Net Revenues . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56,549 51,811
Cost of services . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43,639 41,427
------- -------
Gross Profit . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12,910 10,384
Selling, general and administrative expenses . . . . . . . . . . . . . . . . . . . . 7,681 7,287
------- --------
Operating Income . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5,229 3,097
------- --------
Other (Income) Expenses:
Investment income . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (10) (10)
Interest expense . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3,239 1,784
Equity in net earnings of affiliate . . . . . . . . . . . . . . . . . . . . . . . . (83) (68)
Miscellaneous expense, net . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32 84
--------- ---------
3,178 1,790
------- --------
Income Before Income Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2,051 1,307
Income taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 764 502
--------- ---------
Net Income . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $ 1,287 $ 805
======== =======
Net Income Per Share . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $ 0.08 $ 0.05
======== =======
Weighted average number of common and
common equivalent shares outstanding . . . . . . . . . . . . . . . . . . . . . . . . 15,705 16,202
====== ======
<FN>
The accompanying notes are an integral part of these consolidated financial
statements.
</TABLE>
2
<PAGE> 5
OHM CORPORATION
CONSOLIDATED STATEMENTS OF CASH FLOWS
(In Thousands)
<TABLE>
<CAPTION>
Three Months Ended
March 31,
------------------
1995 1994
------- -------
(Unaudited)
<S> <C> <C>
Cash flows from operating activities:
Net income . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $ 1,287 $ 805
Adjustments to reconcile net income to net cash provided
by (used in) operating activities:
Depreciation and amortization . . . . . . . . . . . . . . . . . . . . . . . 1,762 1,536
Amortization of other noncurrent assets . . . . . . . . . . . . . . . . . . 693 589
Deferred income taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . 414 502
Loss on sale of property and equipment . . . . . . . . . . . . . . . . . . . 1 148
Equity in net earnings of affiliate's continuing operations . . . . . . . . (83) (68)
Deferred translation adjustments and other . . . . . . . . . . . . . . . . . 25 5
Changes in current assets and liabilities:
Accounts receivable . . . . . . . . . . . . . . . . . . . . . . . . . . . . (1,906) 3,385
Costs and estimated earnings on contracts in process in excess of billings . 1,094 (20,984)
Materials and supply inventory . . . . . . . . . . . . . . . . . . . . . . . (571) (198)
Prepaid expenses and other assets . . . . . . . . . . . . . . . . . . . . . (2,092) (909)
Refundable income taxes . . . . . . . . . . . . . . . . . . . . . . . . . . 68 -
Accounts payable . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (4,826) (3,267)
Billings on contracts in process in excess of costs and estimated earnings . 539 (357)
Accrued compensation and related taxes . . . . . . . . . . . . . . . . . . . (615) 193
Federal, state and local income taxes . . . . . . . . . . . . . . . . . . . (46) (186)
Other accrued liabilities . . . . . . . . . . . . . . . . . . . . . . . . . 228 1,050
-------- ---------
Net cash used in operating activities . . . . . . . . . . . . . . . . . . (4,028) (17,756)
------- --------
Cash flows from investing activities:
Purchases of property and equipment . . . . . . . . . . . . . . . . . . . . (2,227) (3,342)
Proceeds from sale of property and equipment . . . . . . . . . . . . . . . . 46 60
Increase in other noncurrent assets . . . . . . . . . . . . . . . . . . . . (911) (490)
-------- ---------
Net cash used in investing activities . . . . . . . . . . . . . . . . . . . (3,092) (3,772)
-------- ---------
Cash flows from financing activities:
Payments on long-term debt and capital leases . . . . . . . . . . . . . . . (805) (429)
Proceeds from borrowing under revolving credit agreement . . . . . . . . . . 26,700 34,800
Payments on revolving credit agreement . . . . . . . . . . . . . . . . . . . (31,400) (14,800)
Payments on pension agreement . . . . . . . . . . . . . . . . . . . . . . . (18) (26)
Proceeds from public offering of common stock . . . . . . . . . . . . . . . - 882
Proceeds from private placement of common stock . . . . . . . . . . . . . . 10,000 -
Reissuance of treasury stock . . . . . . . . . . . . . . . . . . . . . . . . - 189
-------- ----------
Net cash provided by financing activities . . . . . . . . . . . . . . . . 4,477 20,616
-------- --------
Net decrease in cash and cash equivalents . . . . . . . . . . . . . . . . (2,643) (912)
Cash and cash equivalents at beginning of period . . . . . . . . . . . . . . . . 4,930 5,039
-------- --------
Cash and cash equivalents at end of period . . . . . . . . . . . . . . . . . . . $ 2,287 $ 4,127
======= =======
<FN>
The accompanying notes are an integral part of these consolidated financial
statements.
</TABLE>
3
<PAGE> 6
OHM CORPORATION
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
MARCH 31, 1995
(Unaudited)
NOTE 1 - BASIS OF PRESENTATION
The accompanying unaudited consolidated financial statements have been prepared
by OHM Corporation (the "Company") and reflect all adjustments of a normal
recurring nature which are, in the opinion of management, necessary for a fair
presentation of financial results for the three months ended March 31, 1995 and
1994, in accordance with generally accepted accounting principles for interim
financial reporting and pursuant to Article 10 of Regulation S-X. Certain
information and footnote disclosures normally included in financial statements
prepared in accordance with generally accepted accounting principles have been
condensed or omitted pursuant to such rules and regulations. These interim
consolidated financial statements should be read in conjunction with the
Company's Annual Report to Shareholders for the year ended December 31, 1994.
The results of operations for the three months ended March 31, 1995 and 1994,
are not necessarily indicative of the results for the full year.
The unaudited consolidated financial statements include the accounts of the
Company and its subsidiaries. The Company's 40% owned asbestos abatement
affiliate, NSC Corporation ("NSC"), has been accounted for using the equity
method. All material intercompany transactions and balances have been
eliminated in consolidation.
The consolidated financial statements at March 31, 1995, and for the three
months then ended, have been reviewed, prior to filing, by Ernst & Young LLP,
the Company's independent accountants, and their report is included herein.
NOTE 2 - SUPPLEMENTARY CASH FLOW INFORMATION
Cash paid for interest was $1,785,000 and $585,000 and cash paid for income
taxes was $196,000 and $220,000 for the three months ended March 31, 1995 and
1994, respectively.
NOTE 3 - RECLASSIFICATIONS
Certain amounts presented for the three months ended March 31, 1994 have been
reclassified to conform to the March 31, 1995 presentation.
NOTE 4 - INVESTMENTS IN AND ADVANCES TO AFFILIATED COMPANY
The Company owns a 40% equity interest in NSC, a nationwide asbestos abatement
service company. The following summarizes the income statements of NSC for the
three months ended March 31, 1995 and 1994:
<TABLE>
<CAPTION>
Three Months Ended
March 31,
-----------------------
1995 1994
---------- -------
(In Thousands)
<S> <C> <C>
Gross revenues . . . . . . . . . . . . . . . . . . . $29,544 $34,203
Gross profit . . . . . . . . . . . . . . . . . . . . 4,700 4,518
Operating income . . . . . . . . . . . . . . . . . . 548 379
Net income . . . . . . . . . . . . . . . . . . . . . 220 168
Company's interest in net income . . . . . . . . . . 83 68
</TABLE>
4
<PAGE> 7
NOTE 5 - INCOME TAXES
<TABLE>
The reasons for differences between the provisions for income taxes and the
amount computed by applying the statutory federal income tax rate to income
before income taxes are as follows:
<CAPTION>
Three Months Ended
March 31,
-----------------------
1995 1994
---------- -------
<S> <C> <C>
Federal statutory rate . . . . . . . . . . . . . . 34.0 % 34.0 %
Add (deduct):
State income taxes, net of federal benefit . . . 4.4 % 4.3 %
Equity in net earnings of affiliate . . . . . . (1.1)% (1.4)%
Other, net . . . . . . . . . . . . . . . . . . . - 1.5 %
------- --------
37.3 % 38.4 %
======= =======
</TABLE>
NOTE 6 - PROPERTY AND EQUIPMENT
<TABLE>
Property and equipment is summarized as follows:
<CAPTION>
March 31, Dec. 31,
1995 1994
---------- ----------
(In Thousands)
<S> <C> <C>
Land . . . . . . . . . . . . . . . . . . . . . . . . $ 257 $ 257
Buildings and improvements . . . . . . . . . . . . . 17,188 17,179
Machinery and equipment . . . . . . . . . . . . . . 75,905 74,270
Construction in progress . . . . . . . . . . . . . . 4,371 4,190
--------- ---------
97,721 95,896
Less accumulated depreciation and amortization . . . (40,050) (38,656)
------- -------
$57,671 $57,240
======= =======
</TABLE>
NOTE 7 - NET INCOME PER SHARE INFORMATION
Net income per share amounts are based on the weighted average number of common
and common equivalent shares outstanding during the respective periods. Shares
of common stock issuable upon conversion of the 8% Convertible Subordinated
Debentures due 2006 were antidilutive in each of the periods presented and are
not considered to be common stock equivalents.
NOTE 8 - SEASONALITY
The timing of revenue recognition is dependent on the Company's backlog,
contract awards and the performance requirements of each contract. The
Company's revenues are also affected by the timing of its clients' planned
remediation work which generally increases during the third and fourth
quarters. Because of this variability in demand, the Company's quarterly
revenues can fluctuate, and revenues for the first and second quarters of each
year can normally be expected to be lower than the third and fourth quarters.
Although the Company believes that the historical trend in quarterly revenues
for the third and fourth quarters of each year are generally higher than the
first and second quarters, there can be no assurance that this will occur in
future periods. Accordingly, quarterly or other interim results should not be
considered indicative of results to be expected for any quarter or for the full
year.
NOTE 9 - CAPITAL STOCK
On March 28, 1995, the Company sold to H. Wayne Huizenga and an affiliated
family foundation 1,000,000 shares of its common stock and options for an
aggregate purchase price of $10,000,000. The options are exercisable over
five years for the purchase of 620,000 shares of common stock upon payment of
$10.00 per share and 380,000 shares of common stock upon payment of $12.00 per
share.
NOTE 10 - ACQUISITION
On December 5, 1994, the Company entered into a definitive agreement, which
was subsequently amended on May 4, 1995, to acquire substantially all of the
assets and certain liabilities of the hazardous and nuclear waste remediation
5
<PAGE> 8
services business of Rust International Inc. ("Rust") in exchange for 9,668,000
shares of common stock of the Company, or approximately 37% of the
outstanding shares of the Company's common stock upon completion of the
transaction. In exchange for a warrant to purchase up to 700,000 shares of the
Company's common stock at an exercise price of $15.00 per share during the five
years following the closing date, Rust's parent company, WMX Technologies, Inc.
("WMX"), will provide the Company with a credit enhancement in the form of
guarantees, issued from time to time upon request of the Company, of
$62,000,000 of the Company's indebtedness, which will increase proportionately
up to $75,000,000 upon issuance of shares under the warrant. The transaction
is subject to the approval of the shareholders of the Company, which is
currently scheduled for late May 1995, with closing of the transaction shortly
thereafter.
NOTE 11 - LITIGATION AND CONTINGENCIES
The Company's accounts receivable at March 31, 1995 include a claim receivable
aggregating approximately $23,371,000 in direct costs relating to a major
remediation project which was performed by the Company for Citgo Petroleum
Corporation ("Citgo") at its Lake Charles, Louisiana refinery during 1993 and
1994. This claim receivable represents direct costs to date for activities
which the Company's management believes exceeded the scope of the existing
contract due to deficient project specifications provided by Citgo and
differing site conditions. In addition, at December 31, 1994, the Company has
recorded in its financial statements approximately $5,381,000 of accounts
receivable that are in dispute for work performed under the terms of the
Company's base contract with Citgo. In April 1994, the Company submitted to
Citgo a request for equitable adjustment and Citgo responded by filing an
action in the U.S. District Court for the Western District of Louisiana seeking
a declaratory judgment that the Company is not entitled to additional
compensation under the contract and certain other relief. The Company's answer
to the declaratory judgement action was filed in July 1994, together with
counterclaims against Citgo for negligent misrepresentation, breach of contract
and quantum meruit seeking damages in excess of $35,000,000. In August 1994,
Citgo amended its complaint seeking damages under the contract. In December,
1994 Citgo filed a motion to allow it to file, and in January 1995, Citgo
filed a third party complaint against Occidental Oil and Gas Corporation and
OXY USA, Inc. as third party defendants in such litigation because of their
prior involvement with the Citgo site and preparation of the contract
specifications.
The Company has also become involved in litigation with Occidental Chemical
Corporation ("Occidental") relating to a separate project performed in 1993 and
1994 for Occidental. The Company's accounts receivable at March 31, 1995
include a claim receivable of $8,265,000 in direct costs relating to this
project. The litigation arises from an October 1993 contract between the
Company and Occidental for work at a contaminated site in North Tonawanda, New
York. The Company's work was substantially delayed and its costs of performance
were substantially increased as a result of conditions at the site which the
Company's management believes were materially different than as represented by
Occidental. The Company believes that Occidental has implicitly acknowledged
the existence of differing conditions at the site through its previous
execution and partial payment of a change order relating to the Company's
position. In October 1994, Occidental issued a deductive change order deleting
substantially all remaining work from the contract. On December 30, 1994, while
the Company was in the process of developing a comprehensive request for
equitable adjustment, Occidental filed suit against the Company in U.S.
District Court for the Western District of New York alleging damages in excess
of $50,000, the jurisdictional minimum. On March 3, 1995, Occidental filed an
amended complaint seeking $8,806,000 in damages primarily for alleged costs
incurred as a result of project delays and added volumes of incinerated
wastes. On April 6, 1995, the Company filed its answer and counterclaim
denying any liability to Occidental and seeking an amount in excess of
$9,200,000 for damages arising from Occidental's breach of contract,
misrepresentation and failure to pay outstanding contract amounts.
During the fourth quarter of 1994, the Company recorded a $25,000,000 pre-tax
charge, $15,000,000 after-tax or $0.96 per share, to establish a reserve for
accounts receivable, primarily where such accounts are in litigation.
Management believes that it has established adequate reserves should the
resolution of such accounts receivable be lower than the amounts recorded and
such resolution should not have a material adverse impact upon the Company's
consolidated results of future operations or financial condition.
The Company was named in April 1994 as one of 33 third party defendants in a
case titled United States of America v. American Cyanamid Company, Inc., et
al., pending in the United States District Court for the Southern District of
West Virginia. This litigation arises out of claims made against several
potentially responsible parties ("PRPs") by the Environmental Protection Agency
("EPA") for amounts in excess of $24,000,000 for response costs arising out of
releases and threatened releases of hazardous wastes at the Fike Chemical, Inc.
Superfund site (the "Site") in Nitro, West Virginia. The Company was retained
as a response action contractor for the site under contracts with the United
States Army Corps of Engineers ("USACE") and the EPA. The third party
complaint alleges that the Company was
6
<PAGE> 9
an operator of the Site during the remediation and that the Company caused
releases or threatened releases of hazardous substances at the Site as a
result of its negligent conduct, grossly negligent conduct or intentional
misconduct. The third party complaint seeks damages and contribution from the
Company and the other third party defendants. The Company has submitted claims
for indemnification related to this lawsuit under its contract with the USACE
and the EPA and has notified its contractors pollution liability insurance
carrier. The Company believes the lawsuit is without merit, intends to
vigorously defend against it and does not believe that it will have a material
adverse effect on the results of future operations and financial condition of
the Company. In May 1994, the Company learned a criminal and civil
investigation has been commenced by the government relating to the Company's
billings to the EPA and USACE for its work at the Site. The Company believes
the investigation followed certain allegations made by the PRPs in defense of
the main cost recovery action. The Company is cooperating fully with the
investigation.
In addition to the above, the Company is subject to a number of claims and
lawsuits in the ordinary course of its business. In the opinion of management,
the outcome of these actions, which are not clearly determinable at the present
time, are either adequately covered by insurance, or if not insured, will not,
in the aggregate, have a material adverse impact upon the Company's
consolidated financial position or the results of future operations.
7
<PAGE> 10
INDEPENDENT ACCOUNTANTS' REVIEW REPORT
Board of Directors and Shareholders
OHM Corporation
We have reviewed the accompanying consolidated balance sheet of OHM Corporation
and subsidiaries as of March 31, 1995, and the related consolidated statements
of income and cash flows for the three month periods ended March 31, 1995 and
1994. These financial statements are the responsibility of the Company's
management.
We conducted our reviews in accordance with standards established by the
American Institute of Certified Public Accountants. A review of interim
financial information consists principally of applying analytical procedures to
financial data, and making inquiries of persons responsible for financial and
accounting matters. It is substantially less in scope than an audit conducted
in accordance with generally accepted auditing standards, which will be
performed for the full year with the objective of expressing an opinion
regarding the financial statements taken as a whole. Accordingly, we do not
express such an opinion.
Based on our reviews, we are not aware of any material modifications that
should be made to the accompanying consolidated financial statements referred
to above for them to be in conformity with generally accepted accounting
principles.
We have previously audited, in accordance with generally accepted auditing
standards, the consolidated balance sheet of OHM Corporation and subsidiaries
as of December 31, 1994, and the related consolidated statements of operations,
changes in shareholders' equity, and cash flows for the year then ended, not
present herein, and in our report dated February 1, 1995, except for Note 19,
as to which the date is May 4, 1995, we expressed an unqualified opinion on
those consolidated financial statements. In our opinion, the information set
forth in the accompanying consolidated balance sheet as of December 31, 1994,
is fairly stated, in all material respects, in relation to the consolidated
balance sheet from which it has been derived.
ERNST & YOUNG LLP
Columbus, Ohio
May 4, 1995
8
<PAGE> 11
Item 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND
RESULTS OF OPERATIONS
GENERAL
The Company provides a broad range of environmental and hazardous
waste remediation services to its clients located primarily in the United
States. The timing of the Company's revenues is dependent on its backlog,
contract awards and the performance requirements of each contract. The
Company's revenues are also affected by the timing of its clients' planned
remediation activities which generally increase during the third and fourth
quarters. Because of this variability in demand, the Company's quarterly
revenues can fluctuate, and revenues for the first and second quarters of each
year have historically been lower than for the third and fourth quarters,
although there can be no assurance that this will occur in future years.
Accordingly, quarterly or other interim results should not be considered
indicative of results to be expected for any quarter or full fiscal year.
On March 28, 1995, the Company sold to H. Wayne Huizenga and an
affiliated family foundation 1,000,000 shares of its common stock and options
for an aggregate purchase price of $10,000,000. The options are exercisable
over five years for the purchase of 620,000 shares of common stock upon payment
of $10.00 per share and 380,000 shares of common stock upon payment of $12.00
per share.
On December 5, 1994, the Company entered into a definitive agreement,
which was subsequently amended on May 4, 1995, to acquire substantially all of
the assets and certain liabilities of the hazardous and nuclear waste
remediation services business of Rust International Inc. ("Rust") in exchange
for 9,668,000 shares of common stock of the Company, or approximately 37% of
the outstanding shares of the Company's common stock upon completion of the
transaction. In exchange for a warrant to purchase up to 700,000 shares of the
Company's common stock at an exercise price of $15.00 per share during the five
years following the closing date, Rust's parent company, WMX Technologies, Inc.
("WMX"), will provide the Company with a credit enhancement in the form of
guarantees, issued from time to time upon request of the Company, of
$62,000,000 of the Company's indebtedness, which will increase proportionately
up to $75,000,000 upon issuance of shares under the warrant. The transaction
is subject to the approval of the shareholders of the Company, which is
currently scheduled for late May 1995, with closing of the transaction shortly
thereafter. The Company is currently evaluating whether it will incur any
significant costs for restructuring its organization and operations upon
consummation of the merger. Such costs would be recorded as a restructuring
charge and may include the costs of closing certain of the Company's offices
and other non-recurring expenses related to such restructuring.
RESULTS OF OPERATIONS
<TABLE>
THREE MONTHS ENDED MARCH 31, 1995 VERSUS
THREE MONTHS ENDED MARCH 31, 1994
GROSS REVENUES. The following table sets forth the Company's gross
revenues by client type for the three months ended March 31, 1995 and 1994 (in
thousands, except percentages):
<CAPTION>
1995 1994
--------------- ---------------
<S> <C> <C> <C> <C>
Government . . . . . . . . . . . . . . . $ 61,808 77% $ 41,761 56%
Industrial . . . . . . . . . . . . . . . 18,409 23% 33,270 44%
-------- ---- -------- ----
$ 80,217 100% $ 75,031 100%
======== ==== ======== ====
</TABLE>
Total gross revenues for the three months ended March 31, 1995
increased 7% to $80,217,000 from $75,031,000 for the same period in 1994.
Gross revenues reflect all amounts to be billed by the Company to its clients
for work performed and include subcontract costs that are generally passed
through to clients with a minimal amount of mark-up. The Company's management
believes that net revenues represent a better measurement of the Company's
ability to generate profit from activities performed by the Company and,
accordingly, management's discussion and analysis of revenues focuses on net
revenues.
DIRECT SUBCONTRACT COSTS. Direct subcontract costs for the three
months ended March 31, 1995 increased 2% to $23,668,000 from $23,220,000 for
the same period in 1994. Increases or decreases in direct subcontract costs
generally result from varying requirements for the use of subcontractors in the
projects performed by the
9
<PAGE> 12
Company. The increase in direct subcontract costs is primarily due to
the increase in gross revenues during the first quarter of 1995 as compared to
the same period in 1994, and increased use of subcontractors for projects
performed under the Company's government contracts. Direct subcontract costs
as a percentage of gross revenues were 30% for the three months ended March 31,
1995, compared to 31% for the same period in 1994.
<TABLE>
NET REVENUES. The following table sets forth the Company's net
revenues by client type for the three months ended March 31, 1995 and 1994 (in
thousands, except percentages):
<CAPTION>
1995 1994
-------------- --------------
<S> <C> <C> <C> <C>
Government . . . . . . . . . . . . . . $42,490 75% $27,312 53%
Industrial . . . . . . . . . . . . . . 14,059 25% 24,499 47%
-------- ---- ------- ----
$56,549 100% $51,811 100%
======= ==== ======= ====
</TABLE>
Net revenues from government agencies for the three months ended March
31, 1995 increased 56% to $42,490,000 from $27,312,000 for the same period in
1994. Such improvement resulted primarily from increased net revenues from
projects issued under term contracts with the U.S. Navy, the Environmental
Protection Agency ("EPA") and certain state and local governments. The Company
expects to experience a continued increase in net revenues from such contracts
for the balance of 1995 when compared to the same periods in 1994. In
addition, the Company continues to experience a significant amount of proposal
activity for new term contracts with the various Department of Defense
agencies.
The Company experienced a $10,440,000 or 43% decrease in net revenues
from industrial clients during the three months ended March 31, 1995 as
compared to the same period in 1994. The first quarter of 1994 included
significant net revenues from a project that was performed for Citgo Petroleum
Corporation ("Citgo") (see "Note 11 to the Consolidated Financial Statements")
that ended during the second quarter of 1994. The Company's industrial sector
revenues remain sluggish, which the Company believes is due to anticipated
changes in the Superfund law pending its reauthorization and current economic
conditions in certain industry and geographic sectors. Industrial sector net
revenues as a percentage of total net revenues decreased to 25% for the three
months ended March 31, 1995 from 47% for the same period in 1994.
The Company believes that its revenues will continue to be
predominately derived from the government sector for the foreseeable future in
light of the factors discussed above, combined with continued increased
spending by the federal government for environmental remediation.
COST OF SERVICES AND GROSS PROFIT. Cost of services for the three
months ended March 31, 1995 increased 5% to $43,639,000 from $41,427,000 for
the same period in 1994 primarily due to the increase in net revenues. Cost of
services as a percentage of net revenues was 77% and 80% for the three months
ended March 31, 1995 and 1994, respectively. Cost of services as a percentage
of net revenues was negatively impacted during the first quarter of 1994 by
contract claims arising out of the Company's project with Citgo, which were
recorded without gross profit margin. Gross profit for the three months ended
March 31, 1995 increased 24% to $12,910,000 from $10,384,000 for the same
period in 1994 as a result of factors discussed above.
SELLING, GENERAL AND ADMINISTRATIVE EXPENSES. Selling, general and
administrative ("SGA") expenses for the three months ended March 31, 1995
increased 5% to $7,681,000 from $7,287,000 for the same period in 1994. The
increase in SGA expense was primarily as a result of the net revenue growth
discussed above. SGA expense as a percentage of net revenues was 14% for both
the first quarter of 1995 and 1994.
OPERATING INCOME. Operating income for the three months ended March
31, 1995 increased 69% to $5,229,000 from $3,097,000 for the same period in
1994. The increase is primarily due to increased net revenues from projects
and other factors discussed above.
OTHER (INCOME) EXPENSES. Other (income) expenses, excluding the
Company's equity in net earnings of NSC, increased $1,403,000 to $3,261,000 for
the three months ended March 31, 1995 from $1,858,000 for the same period in
1994. Interest expense for the three months ended March 31, 1995 increased
$1,455,000 to $3,239,000 from $1,784,000 for the same period in 1994 . Such
increase was due to additional borrowings as a result of the increased working
capital requirements of certain large remediation projects and government
contracts as well as an increase in the interest rates charged under the
Company's revolving credit facility.
EQUITY IN NET EARNINGS OF AFFILIATE. The Company's equity interest in
NSC's net earnings for the three
10
<PAGE> 13
months ended March 31, 1995 was $83,000 compared to $68,000 for the same period
in 1994. The asbestos abatement industry in general continues to experience
competitive pressures in the market place which have negatively impacted the
gross margin on NSC's projects.
NET INCOME. Net income for the three months ended March 31, 1995 was
$1,287,000 or $0.08 per share compared to $805,000 or $0.05 per share for the
same period in 1994. The effective income tax rate was 37% for the three
months ended March 31, 1995, compared to 38% for the same period in 1994. See
"Note 5 to the Consolidated Financial Statements" for a reconciliation of the
statutory federal income tax rate to the effective income tax rate.
CONTRACT BACKLOG
<TABLE>
The following table lists, at the dates indicated, (i) the Company's
backlog, defined as the unearned portion of the Company's existing contacts and
unfilled orders, and (ii) the Company's term contracts, defined as the
potential value of government term contracts (in thousands):
<CAPTION>
March 31, December 31,
1995 1994
------------ ------------
<S> <C> <C>
Backlog . . . . . . . . . . . . . . . . . $ 272,000 $ 255,000
Term contracts . . . . . . . . . . . . . . 1,478,000 1,498,000
-------------- -------------
Total contract backlog . . . . . . . $ 1,750,000 $ 1,753,000
============== =============
</TABLE>
BACKLOG. The Company received more new awards from clients or delivery
orders issued under the Company's term contracts in the first quarter of 1995
than was recorded as revenue, which resulted in the increase in backlog at
March 31, 1995 when compared to December 31, 1994. In accordance with industry
practice, substantially all of the Company's contracts in backlog may be
terminated at the convenience of the client. In addition, the amount of the
Company's backlog is subject to changes in the scope of services to be provided
under any given contract. The Company has not historically experienced any
material contract terminations and generally experiences favorable changes in
contract scope. The Company estimates that approximately 60% of the backlog at
March 31, 1995 will be realized within the next year.
TERM CONTRACTS. Term contracts are typically performed under delivery
orders, issued by the contracting government entity, for a large number of
small- to medium-sized remediation projects throughout the geographic area
covered by the contract. The Company's government term contracts generally may
be canceled, delayed or modified at the sole option of the government, and
typically are subject to annual funding limitations and public sector budget
constraints. Accordingly, such government contracts represent the potential
dollar value that may be expended under such contracts, but there is no
assurance that such amounts, if any, will be actually spent on any projects or
the timing thereof.
LIQUIDITY AND CAPITAL RESOURCES
The Company is a party to a $135,000,000 revolving credit facility (as
amended January 18, 1995) to provide letters of credit and cash borrowings,
which has a three year term and is scheduled to expire on May 11, 1996. Under
the terms of the agreement, cash borrowings may not exceed $95,000,000 and bear
interest at either the prime rate plus a percentage ranging from .75% to 1.875%
or, at the Company's option, the Eurodollar market rate plus a percentage
ranging from 1.75% to 2.875%. The percentage over the prime rate or the
Eurodollar market rate is based on the aggregate amount borrowed under the
facility as well as the Company's financial performance as measured by an
interest coverage ratio and a total funded debt ratio. The agreement provides
the participating banks a security interest in the Company's equipment,
inventories, accounts receivable, general intangibles and in the Company's
investment in the common stock of NSC as well as its other subsidiaries. The
agreement also imposes, among other covenants, a minimum tangible net worth
covenant and a restriction on all of the Company's retained earnings which
precludes the declaration and payment of cash dividends. The amounts
outstanding for cash borrowings under the revolving credit facility at March
31, 1995 and December 31, 1994 were $53,000,000 and $57,700,000, respectively,
and aggregate standby letters of credit outstanding at March 31, 1995 and
December 31, 1994 were $29,043,000 and $34,771,000, respectively.
Capital expenditures for the three months ended March 31, 1995 and 1994
were $2,227,000 and $3,342,000, respectively. The Company's capital
expenditures are primarily related to the purchase of heavy equipment and the
fabrication of custom equipment by the Company for the execution of remediation
projects.
11
<PAGE> 14
Capital expenditures for 1995 are expected to range between $12,000,000
and $15,000,000. The Company's long-term capital expenditure requirements are
dependent upon the type and size of future remediation projects awarded to the
Company.
During the first quarter of 1995, the Company derived 77% of its gross
revenues from government agencies compared to 56% during the same period in
1994. Revenues from government agencies historically have required greater
working capital, the major component of which is accounts receivable, than
revenues from industrial sector clients. In addition, the Company is bidding
on a number of large, long-term contract opportunities which, if awarded to the
Company, would also increase working capital needs and capital expenditures.
As a result of these factors, the Company believes it will be required to
supplement its cash flows from continuing operations with additional external
sources to finance its short- and long-term capital expenditure and working
capital needs.
The Company believes it will be able to finance the funds needed for
working capital and capital expenditure requirements in the short term through
a combination of cash flows from continuing operations, borrowings under its
revolving credit facility, proceeds from permitted asset sales and other
external sources. In addition, the terms of the agreement for the Company's
pending acquisition of Rust's hazardous and nuclear waste remediation business
provide that Rust's parent company, WMX, will provide the Company with a credit
enhancement, in the form of guarantees, issued from time to time upon request
of the Company, of up to $62,000,000 of the Company's indebtedness outstanding
during the five years following the closing of the transaction. Such
guarantees should expand the Company's borrowing capacity and lower its cost of
capital after the completion of the acquisition.
The Company's identified long-term capital needs consist of payments
upon the maturity of the Company's revolving credit facility in 1996 and
sinking fund payments commencing in 1996 as well as payments upon maturity of
its Convertible Debentures in 2006. The Company expects that it will be able
to refinance this indebtedness as necessary. The Company is currently actively
negotiating a new credit facility with a group of banks which it expects to
become effective shortly after the consummation of the acquisition of Rust's
hazardous and nuclear waste remediation business units.
ENVIRONMENTAL MATTERS AND GOVERNMENT CONTRACTING
Although the Company believes that it generally benefits from
increased environmental regulations, and from enforcement of those regulations,
increased regulation and enforcement also create significant risks for the
Company. The assessment, remediation, analysis, handling and management of
hazardous substances necessarily involve significant risks, including the
possibility of damages or injuries caused by the escape of hazardous materials
into the environment, and the possibility of fines, penalties or other
regulatory action. These risks include potentially large civil and criminal
liabilities for violations of environmental laws and regulations, and
liabilities to customers and to third parties for damages arising from
performing services for clients, which could have a material adverse effect on
the Company.
The Company does not believe there are currently any material
environmental liabilities which should be recorded or disclosed in its
financial statements. The Company anticipates that its compliance with various
laws and regulations relating to the protection of the environment will not
have a material effect on its capital expenditures, future earnings or
competitive position.
Because of its dependence on government contracts, the Company also
faces the risks associated with such contracting, which could include civil and
criminal fines and penalties. As a result of its government contracting
business, the Company has been, is, and may in the future be subject to audits
and investigations by government agencies. See "Note 11 to the Consolidated
Financial Statements." The fines and penalties which could result from
noncompliance with the Company's government contracts or appropriate standards
and regulations, or the Company's suspension or debarment from future
government contracting, could have a material adverse effect on the Company's
business.
12
<PAGE> 15
PART II -- OTHER INFORMATION
Item 1. Legal Proceedings
In October 1993, the Company was retained by Citgo for the removal of
surface impoundment sludge at its Lake Charles, Louisiana refinery.
Based on information provided to the Company by Citgo, the Company bid and
was awarded a contract for approximately $28,600,000. During April 1994,
the Company submitted to Citgo a request for a substantial equitable
adjustment to the contract as a result of deficient project specifications
provided by Citgo as well as other unplanned events controlled by Citgo.
On April 29, 1994, Citgo filed a declaratory judgment action in the United
States District Court for the Western District of Louisiana requesting a
declaratory judgement that the Company is not entitled to additional
compensation and requesting an order for specific performance requiring
the Company to perform the contract. The Company's accounts receivable as
of March 31, 1995 reflect a claim receivable and other accounts receivable
relating to performance of the Citgo project aggregating approximately
$28,752,000. The Company's answer to the declaratory judgement action was
filed on July 29, 1994, together with counterclaims against Citgo for
negligent misrepresentation, breach of contract and quantum meruit seeking
damages in excess of $35,000,000. Subsequent to filing of the Company's
answer and counterclaim, Citgo amended its complaint seeking damages under
the contract, which the Company believes approximates the amount of
disputed accounts receivable that Citgo is currently withholding. In
December 1994, Citgo filed a motion to allow it to file, and in January
1995 Citgo filed, a third party complaint against Occidental Oil and Gas
Corporation and OXY USA, Inc., asserting various claims relating to their
prior involvement with the Citgo site and its contract specifications.
The Company was named in April 1994 as one of 33 third party defendants in
a case titled United States of America v. American Cyanamid Company, Inc.,
et al., pending in the United States District Court for the Southern
District of West Virginia. This litigation arises out of Superfund cost
recovery claims made against several potentially responsible parties
("PRPs") by the Environmental Protection Agency ("EPA") for amounts in
excess of $24,000,000 for response costs arising out of releases and
threatened releases of hazardous wastes at the Fike Chemical, Inc.
Superfund site (the "Site") in Nitro, West Virginia. The Company was
retained as a response action contractor for the Site under contracts with
the United States Army Corps of Engineers ("USACE") and the EPA. The
third party complaint alleges that the Company was an operator of the Site
during the remediation and that the Company caused releases or threatened
releases of hazardous substances at the Site as a result of its negligent
conduct, grossly negligent conduct or intentional misconduct. The third
party complaint seeks damages and contribution from the Company and the
other third party defendants. The Company has submitted claims for
indemnification related to this lawsuit under its contract with the USACE
and the EPA and has notified its contractors pollution liability insurance
carrier. The Company believes the lawsuit is without merit, intends to
vigorously defend against it and does not believe that it will have a
material adverse effect on the results of operations and financial
condition of the Company. In May 1994, the Company learned a criminal and
civil investigation has been commenced by the government relating to the
Company's billings to the EPA and USACE for its work at the Site. The
Company believes the investigation followed certain allegations made by
the PRPs in defense of the main cost recovery action. The Company is
cooperating fully with the investigation.
Item 6. Exhibits and Reports on Form 8-K
(a) Exhibits
2 Amendment dated as of May 4, 1995 to the Agreement and
Plan of Reorganization dated as of December 5, 1994 by and
among OHM Corporation, Rust Remedial Services Inc.,
Enclean Environmental Services Group, Inc., Rust
Environmental, Inc., and Rust International Inc.
10(a) Stock Purchase Agreement by and between Huizenga Family
Foundation, Inc. and OHM Corporation dated as of March 28,
1995
10(b) Stock Purchase Agreement by and between H. Wayne Huizenga
and OHM Corporation dated as of March 28, 1995
11 Statement Re Computation of Per Share Earnings
15 Letter Re Unaudited Financial Information
27 Financial Data Schedule
(b) No reports on Form 8-K were filed during the quarter ended
March 31, 1995.
13
<PAGE> 16
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
OHM CORPORATION
Date: May 15, 1995 By /s/ HAROLD W. INGALLS
--------------------------
Harold W. Ingalls
Vice President and
Chief Financial Officer
(Principal Financial Officer)
Date: May 15, 1995 By /s/ KRIS E. HANSEL
--------------------------
Kris E. Hansel
Vice President and Controller
(Principal Accounting Officer)
(Duly Authorized Officer)
14
<PAGE> 17
COMMISSION FILE NUMBER 1-9654
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
________________________________________________
FORM 10-Q
QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(D) OF
THE SECURITIES EXCHANGE ACT OF 1934
FOR THE QUARTER ENDED
MARCH 31, 1995
___________________________________________
OHM CORPORATION
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
__________
EXHIBITS
__________
<PAGE> 18
EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit Exhibit
Number Description
- ------ -----------
<S> <C>
2 Amendment dated as of May 4, 1995 to the Agreement and Plan of
Reorganization dated as of December 5, 1994 by and among OHM
Corporation, Rust Remedial Services Inc., Enclean Environmental
Services Group, Inc., Rust Environmental, Inc., and Rust International
Inc.
10(a) Stock Purchase Agreement by and between Huizenga Family Foundation,
Inc. and OHM Corporation dated as of March 28, 1995
10(b) Stock Purchase Agreement by and between H. Wayne Huizenga and OHM
Corporation dated as of March 28, 1995
11 Statement Re Computation of Per Share Earnings
15 Letter Re Unaudited Financial Information
27 Financial Data Schedule
</TABLE>
<PAGE> 1
AMENDMENT TO AGREEMENT AND PLAN OF REORGANIZATION
This Amendment, dated as of May 4, 1995 (the "Amendment"), to the Agreement
and Plan of Reorganization, dated December 5, 1995 (the "Reorganization
Agreement"), by and among OHM Corporation, an Ohio corporation ("OHM"), Rust
Remedial Services Inc., a Delaware corporation ("Remedial"), Enclean
Environmental Services Group, Inc., a Delaware corporation ("Enclean"), Rust
Environmental, Inc., a Delaware corporation ("Environmental"), and Rust
International Inc., a Delaware corporation ("Rust").
For good and valuable consideration, the parties hereby agree that the
Reorganization Agreement shall be amended as follows:
1. Schedule 1.2 of the Reorganization Agreement is hereby amended in its
entirety as set forth on Schedule 1.2 attached hereto.
2. Section 1.5 of the Reorganization Agreement is hereby amended in its
entirety to read as follows:
"1.5 ADJUSTMENTS. The Transferred Assets transferred or to be transferred
to Environmental pursuant to this Agreement shall be adjusted immediately
prior to Closing as follows:
(a) Rust shall contribute to Environmental immediately prior to Closing
by wire transfer in immediately available funds an amount equal to (i)
$10,000,000, plus, in the event the average closing price for the OHM Common
Stock for the 20 trading days prior to the second day before the Closing
Date (the "Closing Price"), exceeds $10.61 (ii) an amount equal to the
product of (A) the amount by which the Closing Price is more than $10.61,
times (B) 10,368,000, but not more than $10,000,000, which amount shall be
deemed a Transferred Asset.
(b) Prior to the Closing, OHM may conduct an environmental inspection of
the real property described on Schedule 1.5(c) hereof and, if such
inspection is not satisfactory to OHM, OHM may require that such property
not be included in the Transferred Assets."
3. Section 2.6 of the Reorganization Agreement is hereby amended in its
entirety as follows:
"2.6 CONVERSION OF ENVIRONMENTAL COMMON STOCK. At the Time of Merger, the
shares of Environmental Common Stock issued and outstanding immediately prior
to the Time of Merger shall, by virtue of the Merger and without any action
on the part of the holder thereof, be converted into the
<PAGE> 2
right to receive 9,668,000 shares of OHM Common Stock (the "Shares") as
allocated by Rust among the Contributing Subsidiaries."
4. Section 3.1(a) of the Reorganization Agreement is hereby amended by
deleting from the third and fourth lines thereof the phrase "as of the end of
the month preceding the Closing Date (the "Closing Statement")" and
substituting therefor the phrase "as of the last day of the month either
preceding or following the Closing Date which is closest to the Closing Date
(the "Closing Statement")."
5. Section 3.1(c) of the Reorganization Agreement is hereby amended by
deleting from the fifth and sixth lines thereof the phrase "not including the
shortfall resulting from any adjustment pursuant to Section 1.5(a) hereof" and
changing the reference in the last line of Section 3.1(c) from Section 1.5(b)
to Section 1.5(a).
6. Section 6.12 of the Reorganization Agreement is hereby amended by deleting
paragraph (h) thereof in its entirety.
7. Schedule 6.12 of the Reorganization Agreement is hereby amended by
deleting item (h) thereof in its entirety.
8. Section 9.6 of the Reorganization Agreement is hereby amended in its
entirety as follows:
"9.6 GUARANTEE AGREEMENT. WMX shall have executed and delivered a
Guarantee Agreement in the form of Schedule 9.6."
9. The Reorganization Agreement is hereby amended by adding a new Schedule
9.6 in the form attached hereto as Schedule 9.6.
10. Schedule 9.9 to the Reorganization Agreement is hereby amended in its
entirety by Schedule 9.9 attached hereto.
11. Section 10.8 of the Reorganization Agreement is hereby amended in its
entirety as follows:
"10.8 WARRANT AGREEMENT. OHM shall have executed and delivered to WMX a
Warrant Agreement in the form of Exhibit A to Schedule 9.6."
12. Section 13.2 of the Reorganization Agreement is hereby amended by
deleting the phrase "Sections 6.12(h) and 6.14 hereof" appearing in (i) thereof
and substituting therefor the phrase "Section 6.14 hereof."
13. Except as amended herein, the Reorganization Agreement and the Schedules
thereto shall remain in full force and effect.
-2-
<PAGE> 3
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed as of the date first above written.
OHM CORPORATION
By /s/ Randall M. Walters
-------------------------------------------
Title: Vice President, General Counsel and
Secretary
RUST REMEDIAL SERVICES INC.
By /s/ Stephen P. Stanczak
-------------------------------------------
Title: Vice President
ENCLEAN ENVIRONMENTAL SERVICES GROUP, INC.
By /s/ Stephen P. Stanczak
-------------------------------------------
Title: Vice President
RUST ENVIRONMENTAL INC.
By /s/ Stephen P. Stanczak
-------------------------------------------
Title: Vice President
RUST INTERNATIONAL INC.
By /s/ Stephen P. Stanczak
-------------------------------------------
Title: Vice President
-3-
<PAGE> 4
SCHEDULE 9.6
GUARANTEE AGREEMENT
This GUARANTEE AGREEMENT ("Agreement") is made and entered into this ____
day of _________, 1995 by and among OHM Corporation, an Ohio corporation
("OHM"), and WMX Technologies, Inc., a Delaware corporation ("WMX").
WHEREAS, OHM, Rust International Inc. and WMX have entered into a Standstill
and Non-Competition Agreement, dated the date hereof (the "Standstill
Agreement"), providing for certain agreements with respect to the ownership and
voting by WMX and its affiliates of OHM Common Stock and other matters after
the date hereof; and
WHEREAS, WMX is willing to guarantee certain indebtedness of OHM in exchange
for a warrant to purchase 700,000 shares of OHM Common Stock (the "Warrant");
NOW, THEREFORE, in consideration of the agreements, rights, obligations, and
covenants contained herein, OHM and WMX hereby agree as follows:
1. GUARANTEE. (a) WMX hereby agree to issue from time to time, for a period
of five years following the Closing, at the direction of and for the benefit of
OHM as determined by a majority of the Other Directors (as defined in the
Standstill Agreement), a guaranty or guarantees, as the case may be, of the
indebtedness of OHM and/or its subsidiaries outstanding from time to time in an
aggregate amount not to exceed the Guaranteed Amount (as defined in Section
1(b) hereof), upon the satisfaction of the following conditions in each
instance a guaranty is issued:
(i) the form of each such guarantee shall be reasonably satisfactory to
WMX and the Independent Directors (as defined in the Standstill Agreement;
(ii) OHM shall execute and deliver to WMX a reimbursement agreement, in
form and substance satisfactory to WMX, obligating OHM to reimburse WMX for
any and all payments made or obligations incurred by WMX under any such
guarantees (the "Reimbursement Obligations");
(iii) if required by WMX in its sole discretion and subject to clause (v)
below, OHM shall grant WMX a perfected first priority mortgage, lien or
security interest in such collateral owned by OHM (the "Collateral") as WMX
shall request to secure OHM's Reimbursement Obligations;
<PAGE> 5
(iv) OHM shall execute and deliver such mortgages, security agreements and
other documents, in form and substance reasonably satisfactory to WMX, and
shall take such other action, as WMX shall reasonably request to perfect its
mortgage, lien or security interest in the Collateral;
(v) in the event any of the Collateral requested by WMX is subject to a
prior mortgage, lien, security interest, negative pledge or other
encumbrance (the "Prior Liens"), OHM shall cause the holders of the
indebtedness secured by such Prior Liens to execute and deliver to WMX an
intercreditor agreement, in form and substance reasonably satisfactory to
WMX, the effect of which is to provide WMX with a security interest, lien,
mortgage or negative pledge in or with respect to any such Collateral pari
passu with such Prior Liens upon any payment made by WMX under any such
guaranty; and
(vi) OHM shall execute and deliver such other documents, certificates and
opinions relating to such Guaranty as WMX may reasonably request.
(b) As used herein, the term "Guaranteed Amount" shall mean $62,000,000 as
of the Closing Date and thereafter shall be increased from time to time by an
amount equal to the product of (i) $13,000,000, times (ii) a fraction, (A) the
numerator of which shall be the number of shares of OHM Common Stock purchased
by WMX or its affiliates upon exercise of all or any portion of the Warrant (as
hereinafter defined) or, if WMX shall sell, assign or transfer all or any part
of the Warrant to any person other than an affiliate, the number of shares of
OHM Common Stock underlying the Warrant (or portion thereof) which are sold,
assigned or transferred, but not more in the aggregate (taking into account all
prior adjustments) than 700,000 and (B) the denominator of which shall be
700,000.
2. WARRANT. Simultaneously herewith, OHM shall issue to WMX a warrant,
exercisable for a period of five years from the date hereof, to purchase
700,000 shares of OHM Common Stock at an exercise price of $15.00 in the form
attached hereto as Exhibit A.
3. MODIFICATION; WAIVER. This Agreement may be modified in any manner and at
any time by written instrument executed by the parties hereto. Any of the
terms, covenants, and conditions of this Agreement may be waived at any time by
the party entitled to the benefit of such term, covenant, or condition.
4. PARTIES IN INTEREST; ASSIGNMENT. This Agreement and all the provisions
hereof shall be binding upon and inure to the benefit of the parties hereto and
their respective successors and permitted assigns, but neither this Agreement
nor any of the rights, interests, and obligations hereunder shall be assigned
by
-2-
<PAGE> 6
any of the parties hereto without the prior written consent of the other
parties hereto. Nothing in this Agreement, whether expressed or implied, shall
be construed to give any person other than the parties hereto any legal or
equitable right, remedy, or claim under or in respect of this Agreement.
5. COUNTERPARTS. This Agreement may be executed in one or more counterparts,
all of which shall constitute one and the same instrument.
6. HEADINGS. The article and section headings of this Agreement are for
convenience of reference only and shall not be deemed to alter or affect the
meaning or interpretation of any provisions hereof.
7. GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the internal laws of the State of Ohio applicable to contracts
made and to be performed therein.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the date first above written.
OHM CORPORATION
By ___________________________________________
Name:______________________________________
Title:_____________________________________
WMX TECHNOLOGIES, INC.
By ___________________________________________
Name:______________________________________
Title:_____________________________________
-3-
<PAGE> 7
EXHIBIT A
================================================================================
- --------------------------------------------------------------------------------
WARRANT AGREEMENT
by and between
WMX TECHNOLOGIES, INC.
and
OHM CORPORATION
Dated as of May _____, 1995
- --------------------------------------------------------------------------------
================================================================================
<PAGE> 8
<TABLE>
TABLE OF CONTENTS
<CAPTION>
PAGE
<S> <C> <C>
1. GRANT OF WARRANT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
1.1 Grant . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
1.2 Shares To Be Issued; Reservation of Shares . . . . . . . . . . . . . . . . . . . . . . . . 2
2. ADJUSTMENTS TO WARRANT RIGHTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
2.1 Stock Combinations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
2.2 Reorganizations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
2.3 Adjustment Upon Changes in Capitalization . . . . . . . . . . . . . . . . . . . . . . . . 3
2.4 Notice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
2.5 Fractional Interests . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
2.6 Effect of Alternate Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
2.7 Successive Application . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
3. EXERCISE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
3.1 Exercise of Warrant . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
3.2 Issuance of Warrant Shares . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
4. RIGHTS OF HOLDER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
5. TRANSFERABILITY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
6. LEGEND ON WARRANT SHARES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
7. REGISTRATION RIGHTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
7.1 Transfer of Registration Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
7.2 Piggyback Registration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
7.3 Registration Procedures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
7.4 Further Information . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
8. MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
8.1 Amendments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
8.2 Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
8.3 Waiver By Consent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
8.4 No Implied Waiver; Rights Are Cumulative . . . . . . . . . . . . . . . . . . . . . . . . . 10
8.5 Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
8.6 Severability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
8.7 Captions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
8.8 Entire Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
</TABLE>
-i-
<PAGE> 9
THE SECURITIES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "ACT") OR UNDER ANY APPLICABLE
STATE LAW AND MAY NOT BE TRANSFERRED, SOLD OR OTHERWISE DISPOSED OF IN
THE ABSENCE OF AN EFFECTIVE REGISTRATION UNDER THE ACT OR AN OPINION
OF COUNSEL REASONABLY SATISFACTORY TO THE ISSUER THAT SUCH
REGISTRATION IS NOT REQUIRED UNDER THE ACT AND THE RULES AND
REGULATIONS PROMULGATED THEREUNDER OR SUCH STATE SECURITIES LAWS. THE
SECURITIES EVIDENCED HEREBY ARE SUBJECT TO THE PROVISIONS OF AN
AGREEMENT, DATED _____________, 1995, AMONG OHM CORPORATION, RUST
INTERNATIONAL INC. AND WMX TECHNOLOGIES, INC., A COPY OF WHICH IS ON
FILE AT THE OFFICE OF THE SECRETARY OF OHM CORPORATION.
WARRANT AGREEMENT
This WARRANT AGREEMENT (the "Warrant") is being entered into
this _____day of May, 1995, by and between OHM Corporation, an Ohio corporation
(together with its successors and permitted assigns, the "Company") and WMX
Technologies, Inc., a Delaware corporation (together with his successors and
permitted assigns, the "Buyer"). Capitalized terms used herein and not
otherwise defined herein shall have the meanings ascribed to them in the
Standstill Agreement (as defined below).
RECITALS
WHEREAS, the Company and Buyer have entered into a Guarantee
Agreement of even date herewith pursuant to which Buyer has agreed to guarantee
certain indebtedness of the Company and the Company has agreed to grant to
Buyer the right to purchase Seven Hundred Thousand (700,000) additional shares
of the Company's common stock, par value $.10 per share (the "Common Stock"),
at an exercise price of fifteen dollars ($15.00) per share pursuant to the
terms and conditions of this Warrant; and
WHEREAS, the Company, Rust International Inc. ("Rust") and
Buyer have entered into a Standstill and Non-Competition Agreement dated as of
the date hereof (the "Standstill Agreement") pursuant to which Rust and Buyer
have agreed to certain limitations on their aggregate ownership of the Company,
which limitations shall also apply to any shares of Common Stock issued
pursuant to this Warrant;
NOW, THEREFORE, for the consideration set forth in the
Guarantee Agreement and other good and valuable consideration, the sufficiency
and receipt of which is hereby acknowledged, the Company agrees with Buyer as
follows:
<PAGE> 10
1. GRANT OF WARRANT.
1.1 GRANT. The Company hereby grants to Buyer this
Warrant, which, subject to the terms and conditions of the Standstill
Agreement, is exercisable as provided herein, in whole or in part, at any time
and from time to time during the period commencing on the date hereof (the
"Closing Date") and ending on the fifth anniversary of the Closing Date at 6:00
p.m., local time in New York, New York, (the "Exercise Period") to purchase an
aggregate of up to Seven Hundred Thousand (700,000) shares of Common Stock (the
"Warrant Shares"), at an exercise price of fifteen dollars ($15.00) per share
(as it may be hereinafter adjusted, the "Exercise Price"). Buyer and its
permitted successors and assigns are hereinafter referred to as "Holder."
1.2 SHARES TO BE ISSUED; RESERVATION OF SHARES. The
Company covenants and agrees that all Warrant Shares will, upon issuance, be
duly authorized, validly issued and outstanding, fully paid and non-assessable,
and free from all taxes, liens and charges with respect to the issuance
thereof, except as otherwise provided in the Reorganization Agreement. The
Company further covenants and agrees that it will from time to time take all
actions required to assure that the par value per share of the Common Stock is
at all times equal to or less than the effective Exercise Price. The Company
further covenants and agrees that, during the Exercise Period, the Company will
at all times have authorized and reserved sufficient shares of Common Stock to
provide for the exercise of this Warrant in full.
2. ADJUSTMENTS TO WARRANT RIGHTS.
2.1 STOCK COMBINATIONS. In case the Company shall
combine all of the outstanding Common Stock proportionately into a smaller
number of shares, the Exercise Price per Warrant Share hereunder in effect
immediately prior to such combination shall be proportionately increased and
the number of Warrant Shares issuable to the Holder upon exercise of this
Warrant shall be proportionately decreased, as of the effective date of such
combination, as follows: (a) the number of Warrant Shares purchasable upon the
exercise of the Warrant immediately prior to the effective date of such
combination, shall be adjusted so that the holder of the Warrant exercised
after that date shall be entitled to receive the number and kind of Warrant
Shares which the holder of the Warrant would have owned and been entitled to
receive as a result of the combination had the Warrants been exercised
immediately prior to that date, and (b) the Exercise Price in effect
immediately prior to such adjustment shall be adjusted by multiplying such
Exercise Price by a fraction, the numerator of which is the aggregate number of
shares of Common Stock purchasable upon exercise of the Warrants immediately
prior to such adjustment, and the denominator of which is the aggregate number
of shares of Common Stock purchasable upon exercise of the Warrants immediately
thereafter.
2.2 REORGANIZATIONS. If any of the following
transactions (each, a "Special Transaction") shall become effective after the
Closing Date: (i) a capital reorganization or reclassification of the capital
stock of the Company, (ii) a consolidation or merger of the Company with and
into another entity, or (iii) a sale or conveyance of all or substantially all
2
<PAGE> 11
of the Company's assets, then, as a condition of any such Special Transaction,
lawful and adequate provision shall be made whereby the Holder shall thereafter
have the right to purchase and receive, at any time after the consummation of
such Special Transaction until the expiration of the Exercise Period, upon the
basis and upon the terms and conditions specified herein, and in lieu of the
Warrant Shares immediately theretofore issuable upon exercise of this Warrant
for the aggregate Exercise Price in effect immediately prior to such
consummation, such shares of stock, other securities, cash or other assets as
may be issued or payable in and pursuant to the terms of such Special
Transaction with respect to or in exchange for a number of outstanding shares
of Common Stock equal to the number of Warrant Shares immediately theretofore
issuable upon exercise of this Warrant had such Special Transaction not taken
place (pro rated in the case of any partial exercises). In connection with any
Special Transaction, appropriate provision shall be made with respect to the
rights and interests of the Holder to the end that the provisions of this
Warrant (including without limitation provisions for adjustment of the Exercise
Price and the number of Warrant Shares issuable upon the exercise of the
Warrant), shall thereafter be applicable, as nearly as may be, to any shares of
stock, other securities, cash or other assets thereafter deliverable upon the
exercise of this Warrant. The Company shall not effect any Special Transaction
unless prior to or simultaneously with the closing the successor entity (if
other than the Company), if any, resulting from such consolidation or merger or
the entity acquiring such assets shall assume by a written instrument executed
and mailed by certified mail or delivered to the Holder at the address of the
Holder appearing on the books of the Company, the obligation of the Company or
such successor corporation to deliver to such Holder such shares of stock,
securities, cash or other assets as, in accordance with the foregoing
provisions, such Holder has rights to purchase.
2.3 ADJUSTMENT UPON CHANGES IN CAPITALIZATION. In the
event of any change in the Common Stock by reason of stock dividends, stock
splits, recapitalizations or reclassifications, the type and number of Warrant
Shares issuable upon exercise of this Warrant, and the Exercise Price, as the
case may be, shall be adjusted as follows: (a) the number of Warrant Shares
purchasable upon the exercise of the Warrant immediately prior to the record
date for such dividend or distribution, or the effective date of such
recapitalization or reclassification shall be adjusted so that the holder of
the Warrant exercised after that date shall be entitled to receive the number
and kind of Warrant Shares which the holder of the Warrant would have owned and
been entitled to receive as a result of the dividend, distribution,
recapitalization or reclassification had the Warrants been exercised
immediately prior to that date, and (b) the Exercise Price in effect
immediately prior to such adjustment shall be adjusted by multiplying such
Exercise Price by a fraction, the numerator of which is the aggregate number of
shares of Common Stock purchasable upon exercise of the Warrants immediately
prior to such adjustment, and the denominator of which is the aggregate number
of shares of Common Stock purchasable upon exercise of the Warrants immediately
thereafter. No such adjustment shall be made on account of any dividend
payable other than in securities of the Company.
2.4 NOTICE. Whenever this Warrant or the number of
Warrant Shares issuable hereunder is to be adjusted as provided herein or a
dividend or distribution (in cash, stock or otherwise and including, without
limitation, any liquidating distributions) is to be
3
<PAGE> 12
declared by the Company, or a definitive agreement with respect to a Special
Transaction has been entered into, the Company shall forthwith cause to be sent
to the Holder at the last address of the Holder shown on the books of the
Company, by first-class mail, postage prepaid, at least ten (10) days prior to
the record date specified in (A) below or at least twenty (20) days before the
date specified in (B) below, a notice stating in reasonable detail the relevant
facts and any resulting adjustments and the calculation thereof, if applicable,
and stating (if applicable):
(A) the date to be used to determine (i) which
holders of Common Stock will be entitled to receive notice of such dividend,
distribution, subdivision or combination (the "Record Date"), and (ii) the date
as of which such dividend distribution, subdivision or combination shall be
made; or, if a record is not to be taken, the date as of which the holders of
Common Stock of record to be entitled to such dividend, distribution,
subdivision or combination are to be determined (provided, that in the event
the Company institutes a policy of declaring cash dividends on a periodic
basis, the Company need only provide the relevant information called for in
this clause (A) with respect to the first cash dividend payment to be made
pursuant to such policy and thereafter provide only notice of any changes in
the amount or the frequency of any subsequent dividend payments), or
(B) the date on which a Special Transaction is
expected to become effective, and the date as of which it is expected that
holders of Common Stock of record shall be entitled to exchange their shares of
Common Stock for securities or other property deliverable upon consummation of
the Special Transaction (the "Exchange Date").
2.5 FRACTIONAL INTERESTS. The Company shall not be
required to issue fractions of shares of Common Stock on the exercise of this
Warrant. If any fraction of a share of Common Stock would, except for the
provisions of this Section 2.5, be issuable upon the exercise of this Warrant,
the Company shall, upon such issuance, purchase such fraction for an amount in
cash equal to the current value of such fraction, computed on the basis of the
last reported close price of the Common Stock on the New York Stock Exchange
("NYSE") on the last business day prior to the date of exercise upon which such
a sale shall have been effected, or, if the Common Stock is not so listed on
the NYSE, as the Board of Directors of the Issuer may in good faith determine.
2.6 EFFECT OF ALTERNATE SECURITIES. If at any time, as a
result of an adjustment made pursuant to this Section 2, the holder of the
Warrants shall thereafter become entitled to receive any securities of the
Company other than shares of Common Stock, then the number of such other
securities receivable upon exercise of an Warrant shall be subject to
adjustment from time to time on terms as nearly equivalent as practicable to
the provisions with respect to shares of Common Stock contained in this Section
2.
2.7 SUCCESSIVE APPLICATION. The provisions of this
Section 2 shall similarly apply to successive events covered by this Section.
4
<PAGE> 13
3. EXERCISE.
3.1 EXERCISE OF WARRANT. (a) The Holder may exercise
this Warrant by (i) surrendering this Warrant, with the form of exercise notice
attached hereto as EXHIBIT "A" duly executed by Holder, and (ii) making payment
to the Company of the aggregate Exercise Price for the applicable Warrant
Shares in cash, by certified check or bank check or by wire transfer to an
account designated by the Company. Upon any partial exercise of this Warrant,
the Company, at its expense, shall forthwith issue to the Holder for its
surrendered warrant a replacement Warrant identical in all respects to this
Warrant, except that the number of Warrant Shares shall be reduced accordingly.
(b) RECORD DATE FOR OWNERSHIP OF WARRANT SHARES. Each
person in whose name any Warrant Share certificate is issued upon exercise of
the Warrants shall for all purposes been deemed to have become the holder of
record of the Warrant Shares for which such Warrants were exercised on, and
such Warrant Share certificate shall be dated the date upon which the Warrant
exercise notice was duly surrendered and payment of the Exercise Price was
tendered to the Company.
3.2 ISSUANCE OF WARRANT SHARES. The Warrant Shares
purchased shall be issued to the Holder exercising this Warrant as of the close
of business on the date on which all actions and payments required to be taken
or made by Holder, pursuant to Section 3.1, shall have been so taken or made.
Certificates for the Warrant Shares so purchased shall be delivered to the
Holder within a reasonable time, not exceeding ten (10) days after this Warrant
is surrendered.
4. RIGHTS OF HOLDER. Holder shall not, solely by virtue
of this Warrant and prior to the issuance of the Warrant Shares upon due
exercise thereof, be entitled to any rights of a shareholder in the Company.
5. TRANSFERABILITY. Holder hereby represents and
warrants that it is acquiring this Warrant and, upon the exercise thereof, the
Warrant Shares, for investment and not with a view to resale or distribution
thereof. Holder may not sell, assign, transfer or otherwise dispose of this
Warrant or any Warrant Shares, except in accordance with federal and state
securities laws. Subject to compliance with federal and state securities laws
and with the Reorganization Agreement, if applicable, the Holder may sell,
assign, transfer or otherwise dispose of any Warrant Shares acquired upon any
exercise hereof at any time and from time to time.
6. LEGEND ON WARRANT SHARES. Certificates evidencing
the Warrant Shares shall bear the legend set forth on the first page of this
Warrant.
7. REGISTRATION RIGHTS. The Warrant Shares will be
subject to the following registration rights to successors and assigns of Buyer
(other than any successor and assign which is a member of the WMX Group (as
defined in the Standstill Agreement)) as hereinafter set forth. For purposes
of this Article VII, the term "Registrable Securities" means any of the Warrant
Shares and any other shares of Common Stock or other securities
5
<PAGE> 14
issued in respect of the Warrant Shares by way of stock dividend or stock split
or in connection with any recapitalization, merger, consolidation or
reorganization; PROVIDED that, as to any particular securities, such securities
will cease to be Registrable Securities when they have been sold pursuant to
Rule 144 promulgated by the Securities and Exchange Commission or any similar
rule then in force ("Rule 144").
7.1 TRANSFER OF REGISTRATION RIGHTS. Buyer may assign
the registration rights with respect to the Warrant Shares to any party or
parties to which it may from time to time transfer the Warrants or Warrant
Shares, other than any member of the WMX Group. Upon assignment of any
registration rights pursuant to this Section 7.1, Buyer shall deliver to
Company a notice of such assignment which includes the identity and address of
any assignee (each such subsequent holder is referred to as a "Holder").
7.2 PIGGYBACK REGISTRATION.
(a) If at any time, and from time to time, the Company
proposes to effect a registration for its account or for the account of a
security holder or holders (other than a registration on Form S-8, or any
similar or successor form thereto, relating to an employee or director stock
option, stock purchase or other benefit plan, or a registration relating to
shares issuable in a merger, consolidation, exchange offer, purchase of assets
or any similar transaction) ("Piggyback Registration"), the Company shall:
(i) promptly give to each Holder of Registrable
Securities written notice thereof (which written notice shall
include a list of the jurisdictions in which the Company
intends to attempt to qualify such securities under or
otherwise comply with the applicable blue sky or other state
securities laws); and
(ii) include in such registration (and any related
qualification under or other compliance with blue sky or other
state securities laws), and in any underwriting involved
therein on the same terms and conditions as the securities
being issued thereunder, all the Registrable Securities
specified in a written request, made within 15 days after
receipt of such written notice from the Company, by any holder
of Registrable Securities; PROVIDED that if such registration
is a registration in which the managing underwriter advises
the Company that marketing factors require a limitation of the
number of shares of Common Stock to be underwritten in such
registration (a "Cutback Registration"), then (i) if such
registration is a primary registration, whether or not it
includes a secondary registration, on behalf of the Company,
the Company shall register in such registration (A) first, the
shares of Common Stock the Company proposes to sell in such
registration, and (B) second, shares of Common Stock held by
each holder of Registrable Securities and any holder of Common
Stock, other than the holders of Registrable Securities (in
their respective capacities as such) who has the right to
request inclusion of Common Stock held by such holder in such
registration (the "Electing Holders") on a pro rata basis,
based upon the number of shares of Common
6
<PAGE> 15
Stock the holders of Registrable Securities and any Electing
Holders originally sought to include in such registration; and
(ii) if such registration is a Piggyback Registration which is
solely a secondary registration on behalf of holders of Common
Stock, the Company shall register in such registration shares
of Common Stock held by each holder of Registrable Securities
and the Electing Holders on a PRO RATA basis, based upon the
number of shares of Common Stock the holders of Registrable
Securities and any Electing Holders originally sought to
include in such registration and PROVIDED, further, that if
such registration is a Cutback Registration, the Company shall
use its best efforts to include all shares of Registrable
Securities specified in the Holder's written request, but such
best efforts shall not include an obligation on the part of
the Company to reduce the number of shares of the Company or
the other Electing Holders included in such Cutback
Registration beyond that expressly provided for in this
Section.
(b) If the registration of which the Company gives notice
is pursuant to an effective registration statement under the Securities Act
involving an underwriting, the Company shall so advise each Holder as part of
the written notice given pursuant to subclause (i) above. In such event, the
right of each such Holder to registration pursuant to this Section shall be
conditioned upon such Holder's participation in such underwriting, the
inclusion of the Registrable Securities in the underwriting and such Holder
entering into an underwriting agreement, containing customary terms and
conditions in a form reasonably acceptable to the Holder and the Company, with
the underwriter or underwriters selected for such underwriting by the Company;
PROVIDED that if such underwriting agreement shall not be acceptable to Holder
and after reasonable efforts by Company cannot be made acceptable to Holder,
the Company may proceed with such registration without registering the stock of
Holder in such registration.
7.3 REGISTRATION PROCEDURES. (a) In case of each
registration, qualification or compliance effected by the Company subject to
this Article VII, the Company shall keep Holder advised in writing as to the
initiation of each such registration, qualification and compliance and as to
the completion thereof. In addition, at its expense, the Company shall:
(i) before filing a registration
statement or prospectus or any amendment or supplements
thereto subject to this Article VII, the Company shall furnish
to counsel selected by Holder copies of all such documents
proposed to be filed and the portions of such documents
provided in writing by Holder for use therein and for which
Holder shall indemnify the Company shall be subject to such
Holders approval;
(ii) update, correct, amend and
supplement such registration, qualification or compliance as
necessary;
7
<PAGE> 16
(iii) furnish such number of prospectuses,
including preliminary prospectuses, and other documents
incident thereto as Holder may reasonably request from time to
time, which shall be a Selling Expense;
(iv) register or qualify such Registrable
Securities under such other securities or blue sky laws of
such jurisdictions of the United States (up to five of which
shall be at the expense of the Company, and any additional of
which shall be at the expense of Holder) as Holder may deem
reasonable to enable it to consummate the disposition in such
jurisdiction of the Registrable Securities (provided that
Company will not be required to (i) qualify generally to do
business in any jurisdiction where it would not otherwise be
required to qualify but for this section, or (ii) consent to
general service of process in any such jurisdiction);
(v) notify Holder at any time when a
prospectus relating to the Registrable Securities is required
to be delivered under the Securities Act, of the happening of
any event as a result of which the prospectus included in such
registration statement contains an untrue statement of a
material fact or omits any fact necessary to make the
statement therein not misleading, and at the request of
Holder, Company will prepare a supplement or amendment to such
prospectus so that, as thereafter delivered to the purchasers
of such shares, such prospectus will not contain any untrue
statements of a material fact or omit to state any fact
necessary to make the statements therein not misleading;
(vi) cause all such Registrable
Securities to be listed on each securities exchange on which
similar securities issued by Company are then listed;
(vii) provide a transfer agent and
registrar for all such Registrable Securities not later than
the effective date of such registration statement;
(viii) upon the sale of any Registrable
Securities pursuant to such registration statement, remove all
restrictive legends from all certificates or other instruments
evidencing the Registrable Securities;
(ix) furnish, at the request of Holder,
on the date that such Registrable Securities are delivered to
the underwriter for sale in connection with a registration
pursuant to this section, if such Registrable Securities are
being sold through an underwriter, or if such Registrable
Securities are not being sold through an underwriter, on the
date that the registration statement with respect to such
Registrable Securities becomes effective, (i) an opinion dated
such date of the counsel representing Company for purpose of
such registration, in form and substance as is customarily
given to underwriters in an underwritten public offering,
addressed to such underwriter, if any, and to
8
<PAGE> 17
Holder; and (ii) a letter dated as of such date from
the independent certified public accountant of Company, in
form and substance as is customarily given by independent
certified public accountants to underwriters in connection
with a public offering, addressed to the underwriter, if any,
and to Holder; and
(x) make available for inspection by
Holder, any underwriter participating in any disposition
pursuant to such registration statement, and any attorney,
accountant or any other agent retained by Holder or such
underwriter, all financial and other records, pertinent
corporate documents and properties of Company, and cause
Company's officers, directors and employees to supply all
information reasonably requested by any such Holder,
underwriter, attorney, accountant or agent in connection with
such registration statement.
(b) Except as required by law, all expenses incurred by
the Company in complying with this Section 7, including but not limited to, all
registration, qualification and filing fees, printing expenses, fees and
disbursements of counsel for the Company, blue sky fees and expenses in
accordance with Section 7.3(a)(iv) hereof, including fees and disbursements of
counsel related to all blue sky matters, but excluding the compensation of
regular employees of the Company which shall be paid in any event by the
Company ("REGISTRATION EXPENSES") incurred in connection with any registration,
qualification or compliance pursuant to such Sections shall be borne by the
Company. All underwriting discounts and selling commissions applicable to a
sale ("SELLING EXPENSES") incurred in connection with any registration of
Registrable Securities and the legal fees of Holder shall be born by Holder.
7.4 FURTHER INFORMATION. If Registrable Securities owned
by a Holder are included in any registration, such Holder shall furnish the
Company such information regarding itself and the distribution proposed by such
Holder as the Company may reasonably request and as shall be required in
connection with any registration, qualification or compliance referred to in
this Agreement.
8. MISCELLANEOUS.
8.1 AMENDMENTS. The parties may, from time to time,
enter into written amendments, supplements or modifications hereto for the
purpose of adding any provisions to this Warrant or changing in any manner the
rights of either of the parties hereunder. No amendment, supplement or
modification shall be binding on either party unless made in writing and signed
by a duly authorized representative of each party.
8.2 NOTICES. All notices, requests, demands, claims, and
other communications hereunder shall be in writing and shall be delivered by
certified or registered mail (first class postage pre-paid), guaranteed
overnight delivery, or facsimile transmission, which transmission is confirmed
by delivery by certified or registered mail (first class postage pre-paid) or
guaranteed overnight delivery:
9
<PAGE> 18
(a) if to the Company to:
OHM Corporation
16406 U.S. Route 224 East
Findlay, Ohio 45840
Attention: General Counsel
Telecopy: (419) 424-4985
with a copy to:
Jones, Day, Reavis & Pogue
41 South High Street
1900 Huntington Center
Columbus, OH 43215
Attention: Robert J. Gilker, Esq.
Telecopy: (614) 469-4198
(b) if to Buyer to:
WMX Technologies, Inc.
3003 Butterfield Road
Oak Brook, Illinois 60521
Attention: General Counsel
Telecopy: (708) 218-1553
(c) or, in each case, at such other address or to such
other person as may be specified in writing to the other party.
8.3 WAIVER BY CONSENT. The Holder may execute and
deliver to the Company a written instrument waiving, on such terms and
conditions as the Holder may specify in such instrument, any of the
requirements of this Warrant.
8.4 NO IMPLIED WAIVER; RIGHTS ARE CUMULATIVE. The
failure to exercise or the delay in exercising by either party of any right,
remedy, power or privilege under this Warrant, shall not operate as a waiver
thereof. The single or partial exercise of any right, remedy, power or
privilege under this Warrant shall not preclude any other or further exercise
thereof or the exercise of any other right, remedy, power or privilege. The
rights, remedies, powers and privileges herein provided are cumulative and not
exclusive of any rights, remedies, powers and privileges provided by law.
8.5 GOVERNING LAW. This Warrant and rights and
obligations of the parties hereunder shall be governed by, construed and
interpreted in accordance with the
10
<PAGE> 19
laws of the State of Ohio applicable to agreements executed by residents of
that state, and fully to be performed, in that state.
8.6 SEVERABILITY. If any provision of this Warrant is
found to be unenforceable for any reason whatsoever, such provision shall be
deemed null and void to the extent of such unenforceability but shall be deemed
separable from and shall not invalidate any other provision of this Warrant.
8.7 CAPTIONS. Captions to the various paragraphs of this
Agreement are provided for convenience only and shall not be used to construe
the provisions of this Warrant.
8.8 ENTIRE AGREEMENT. This Warrant, the Guarantee
Agreement and the Standstill Agreement constitute the entire understanding of
the parties with respect to the subject matter of the Warrant and supersedes
all prior discussions, agreements and representations, whether oral or written,
concerning the subject matter hereof and whether or not executed by Buyer and
the Company.
IN WITNESS WHEREOF, the parties hereto have caused this
Warrant to be duly executed and delivered by the proper and duly authorized
officers as of the day and year first above written.
OHM CORPORATION
By:_____________________________________
Name:
Title:
WMX TECHNOLOGIES, INC.
By:_____________________________________
Name:
Title:
11
<PAGE> 20
EXHIBIT "A"
-----------
[To be signed only upon exercise of Warrant]
To OHM Corporation:
The undersigned, the Holder of the within Warrant, hereby
irrevocably elects to exercise the purchase right represented by such Warrant
for, and to purchase thereunder, _____________ shares of the common stock, par
value $.10 per share, of OHM Corporation and herewith makes payment of
$___________ thereof or, and requests that the certificates for such shares be
issued in the name of, and be delivered to, ______________ whose address is
___________________________.
Dated:
_________________________
___________________________________
(Signature must conform in all respects
to name of Holder as specified on the
face of the Warrant)
___________________________________
Address
<PAGE> 21
SCHEDULE 9.9
STANDSTILL AND NON-COMPETITION AGREEMENT
This STANDSTILL AND NON-COMPETITION AGREEMENT ("Agreement") is made and
entered into this ____ day of _________, 1995 by and among OHM Corporation, an
Ohio corporation ("OHM"), WMX Technologies, Inc., a Delaware corporation
("WMX"), and Rust International Inc., a Delaware corporation ("Rust").
WHEREAS, Rust, Rust Remedial Services Inc. ("Remedial"), Enclean
Environmental Services Group, Inc. ("Enclean"), Rust Environmental Inc. and OHM
have entered into that certain Agreement and Plan of Reorganization dated as of
December 5, 1994, as amended (the "Reorganization Agreement") whereby Rust
Environmental shall merge with and into a wholly-owned subsidiary of OHM
("Acquisition") with Acquisition being the surviving entity and OHM shall issue
to Rust or certain of its subsidiaries shares of its common stock (the "OHM
Common Stock");
WHEREAS, OHM and WMX propose to enter into that certain Guarantee Agreement,
dated the date hereof, whereby WMX will agree to guarantee certain indebtedness
of OHM and OHM shall issue to WMX, a warrant to purchase 700,000 shares of OHM
Common Stock (the "Warrant");
WHEREAS, the parties desire to provide for certain agreements with respect
to the ownership and voting by WMX and its affiliates of OHM Common Stock and
other matters after such Merger; and
WHEREAS, in order to induce OHM to enter into the Reorganization Agreement,
WMX and certain of its affiliates are willing to enter into certain agreements
which define the rights of WMX and certain of its affiliates to engage in the
environmental remediation business after such Merger;
WHEREAS, the execution and delivery of this Agreement is a condition of, and
in consideration for, the consummation of the transactions contemplated by the
Reorganization Agreement.
NOW, THEREFORE, in consideration of the agreements, rights, obligations, and
covenants contained herein, OHM, Rust and WMX hereby agree as follows:
1.0 AGREEMENTS REGARDING VOTING AND SHARES
The parties agree that during the Term of this Agreement:
1.1 ACQUISITION OF VOTING SECURITIES. No member of the WMX Group will,
directly or indirectly, acquire Voting Securities or
<PAGE> 22
securities convertible into or exercisable or exchangeable for Voting
Securities, including the Warrant ("Convertible Securities") (all such Voting
Securities and Convertible Securities owned by members of the WMX Group being
referred to herein as "Restricted Securities"), other than (i) the acquisition
by Rust and/or its subsidiaries of Restricted Securities pursuant to the
Reorganization Agreement, (ii) the acquisition by WMX of the Warrant (but not
including shares of OHM Common Stock upon exercise thereof) pursuant to the
Guarantee Agreement, and (iii) acquisitions of securities (including by
conversion, exercise or exchange of Convertible Securities, including the
Warrant) which do not result in the WMX Group being the Beneficial Owner of
Restricted Securities constituting more than 40% of the Voting Securities then
outstanding (the "Ownership Limit"); provided, however, that if the transaction
resulting in the WMX Group's being the Beneficial Owner of less than the
Ownership Limit was a sale or transfer by the WMX Group of Restricted
Securities (the "Voluntary Transaction"), the percentage ownership of Voting
Securities then outstanding resulting from the consummation of such Voluntary
Transaction shall thereafter be deemed to be the Ownership Limit. In the event
that the WMX Group's ownership of Restricted Securities exceeds the Ownership
Limit, the WMX Group will be obligated to dispose of Restricted Securities as
promptly as practicable in accordance with law in such amount so that the
ownership by the WMX Group of Restricted Securities following such disposition
is equal to or less than the Ownership Limit; provided, however, that the WMX
Group shall not be obligated to dispose of any Restricted Securities if the
aggregate percentage ownership of the WMX Group is increased as a result of (a)
any action taken by any person other than a member of the WMX Group, including
without limitation any recapitalization of OHM, repurchase of Voting Securities
by OHM or any similar transaction; or (b) stock dividends or other
distributions or offerings made available to holders of Voting Securities
generally.
1.2 VOTING. The WMX Group shall take such action as may be required so that
all Restricted Securities at any time entitled to vote are voted:
(a) for the election of the slate of nominees for election to the Board of
Directors of OHM selected by a majority of the directors of OHM other than
the designees of Rust pursuant to Section 2.5 hereof serving as directors of
OHM (such directors so designated by Rust being referred to herein as the
"Rust Directors" and the remaining directors being referred to herein as the
"Other Directors"), provided that such slate includes the nominees designated
by Rust pursuant to Section 2.5 hereof; and
(b) on all other matters to be voted on by the holders of Voting
Securities, (i) in accordance with the recommendation of a majority of the
Other Directors of OHM if any recommendation is made or, (ii) in the absence
of a
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<PAGE> 23
recommendation, in the same proportion as other stockholders of OHM shall
vote on such matter.
1.3 QUORUM. A representative or representatives of the members of the WMX
Group, as holders of Restricted Securities, shall be present, in person or by
proxy, at any meeting of shareholders of OHM so that all Restricted Securities
may be counted for the purpose of determining the existence of a quorum at such
meeting.
1.4 VOTING TRUST OR ARRANGEMENT. No member of the WMX Group shall deposit
any Restricted Securities in a voting trust or subject any Restricted
Securities to any arrangement or agreement with respect to the voting of such
Restricted Securities.
1.5 PROXY SOLICITATIONS. No member of the WMX Group shall solicit proxies
or initiate, propose or become a "participant" in a "solicitation" (as such
terms are defined in Regulation 14A under the Securities Exchange Act of 1934,
as amended, or any similar successor statute (the "Exchange Act")), in
opposition to any matter which has been recommended by a majority of the Other
Directors or in favor of any matter which has not been approved by a majority
of the Other Directors or seek to advise, encourage or influence any Person
with respect to the voting of Voting Securities in such manner, or induce or
attempt to induce any Person to initiate any stockholder proposal.
1.6 GROUP PARTICIPATION. No member of the WMX Group shall join a
partnership, limited partnership, syndicate or other group, or otherwise act in
concert with any other person, for the purpose of acquiring, holding, voting or
disposing of Voting Securities (other than solely with members of the WMX Group
in a manner consistent with the purposes hereof).
1.7 SOLICITATIONS OF OFFERS. No director or executive officer of any member
of the WMX Group shall, and no member of the WMX Group shall permit any of its
other officers, employees or agents (including investment bankers) to, induce
or attempt to induce or give encouragement to any third person, or enter into
any serious substantive discussions or negotiations with any third person, in
furtherance of any tender offer or business combination transaction in which
shares of Voting Securities would be acquired; provided, however, that nothing
in this Section 1.7 shall, or shall be construed, directly or indirectly, to
limit any rights of the WMX Group to offer, sell or otherwise dispose of shares
of Restricted Securities pursuant to any transaction effected in accordance
with Section 1.8 hereof.
1.8 DISPOSITIONS:
(a) WMX hereby agrees that, except as otherwise permitted by this
Agreement, no member of the WMX Group shall, directly or indirectly, offer,
sell, transfer or
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<PAGE> 24
hypothecate shares of Restricted Securities other than as follows:
(i) to other members of the WMX Group;
(ii) in a distribution registered under the Securities Act in which such
Restricted Securities are offered and sold to the general public;
(iii) in compliance with Rule 144 of the General Rules and Regulations
under the Securities Act (or any similar successor rule); provided, however,
that WMX shall notify OHM at least three business days prior to the date of
entering any sale or transfer order in respect of Restricted Securities
pursuant to Rule 144 (or such successor rule), and provided further that, if
OHM shall thereupon notify the WMX Group of the pendency of a sale or any
public offering by OHM of Voting Securities, no member of the WMX Group
shall effect any sales of Restricted Securities under such rule within 10
calendar days prior to the commencement of or during such offering;
(iv) a merger or consolidation, approved by a majority of the Other
Directors, in which OHM is acquired;
(v) in a sale or sales to any person approved by a majority of the
Other Directors; or
(vi) in privately negotiated transactions in which Restricted Securities
are not sold or transferred to any other person or group who or which would
immediately thereafter, to the knowledge of the WMX Group after reasonable
inquiry, beneficially own or have the right to acquire more than 5% of the
Voting Securities then outstanding, unless such other person agrees to
execute and deliver to OHM an agreement containing obligations similar to
the obligations of the WMX Group contained in this Article 1, which
agreement shall be approved by a majority of the Other Directors;
provided, however, that in any transaction or transactions described in clauses
(ii) or (iii), the WMX Group will use its reasonable efforts to effect the
transfer thereof in a manner which will effect the broadest possible
distribution with no sales or transfers of Restricted Securities to any person
or group of persons (within the meaning of Section 13(d) of the Exchange Act)
in excess of 5% of the then outstanding Voting Securities.
1.9 LEGENDS, STOP TRANSFER ORDERS AND NOTICE. The WMX Group agrees:
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<PAGE> 25
(a) to the placement on the certificate or other instrument representing
Restricted Securities of the following legend:
"The securities represented by this certificate have not been registered
under the Securities Act of 1933 and may not be sold or transferred except
in compliance with such Act. The securities represented by this certificate
are subject to the provisions of an Agreement, dated ____________, 1995
among OHM Corporation, Rust International Inc. and WMX Technologies, Inc., a
copy of which is on file at the office of the Secretary of OHM Corporation.
(b) to the entry of stop transfer orders with the transfer agent (or
agents) and the registrar (or registrars) of OHM against the transfer other
than in compliance with the requirements of this Agreement of legended
securities of which the WMX Group from time to time is the Beneficial Owner.
(c) OHM agrees to the removal of the legend required by Section 1.9(a) and
the stop transfer orders in Section 1.9(b) hereof following the later of
three years from the date of Closing or the expiration of the Term of the
Agreement.
2.0 OTHER AGREEMENTS REGARDING VOTING STOCK
2.1 ANTI-DILUTION OPTIONS.
(a) In the event the WMX Group is the Beneficial Owner of Restricted
Securities constituting less than 20% of all Voting Securities then
outstanding, OHM hereby grants to Rust a cumulative, continuing option (the
"Anti-Dilution Option") to purchase (or to have its affiliate or nominee
purchase) that number of shares as may be necessary, when added to all other
shares of which the WMX Group shall on the relevant date be the Beneficial
Owner (not including the Warrant or shares underlying the unexercised
Warrant), to enable the WMX Group to be the Beneficial Owner of Restricted
Securities (not including the Warrant or shares underlying the unexercised
Warrant) constituting not less than 20% and not more than 21% of all Voting
Securities outstanding after the exercise of the Anti-Dilution Option. OHM
agrees to notify Rust, as provided in Section 6.3 hereof, promptly upon
becoming aware that the WMX Group is the Beneficial Owner of Restricted
Securities (not including the Warrant or shares underlying the unexercised
Warrant) constituting less than 20% of the then outstanding Voting Securities
(the "OHM Notice"). The Anti-Dilution Option may be exercised by Rust by
written notice to OHM and shall be exercisable for a period commencing on the
date that the WMX
- -5-
<PAGE> 26
Group is the Beneficial Owner of Restricted Securities (not including the
Warrant or shares underlying the unexercised Warrant) constituting less than
20% of the then outstanding Voting Securities and continuing for a period of
ten business days following the date that Rust has received the OHM Notice
(the "Option Period") ; provided, however, that in the event that, during the
Option Period, OHM has not released to the public material information which,
in the reasonable judgment of OHM is reasonably likely to have a material and
adverse effect upon the price of the Voting Securities, OHM will extend the
Option Period until the date which is two business days following the release
of such material information to the public. The Anti-Dilution Option shall
be terminated if the transaction resulting in the WMX Group being the
Beneficial Owner of less than 20% of all Voting Securities (not including the
Warrant or shares underlying the unexercised Warrant) was a sale or transfer
of Voting Securities by the WMX Group or if the WMX Group sells or transfers,
and thereby reduces, any or all of its beneficial ownership of Restricted
Securities at a time when the WMX Group was the Beneficial Owner of
Restricted Securities (not including the Warrant or shares underlying the
unexercised Warrant) constituting less than 20% of all Voting Securities or
any Option Period shall have expired without Rust exercising such
Anti-Dilution Option. It is the intention of the parties hereto that the
existence and exercise, from time to time, of an Anti-Dilution Option, in
combination with the WMX Group's right herein to designate persons to OHM's
Board of Directors shall assist the WMX Group in accounting for its ownership
in OHM on the equity method.
(b) The price per share payable upon each exercise of an Anti-Dilution
Option shall be an amount equal to the average closing price per share of the
Voting Securities for the five trading days prior to the date that Rust
notifies OHM that it is exercising the Anti-Dilution Option on the New York
Stock Exchange or other nationally recognized exchange or over-the-counter
market on which the Voting Securities primarily trade and shall be payable by
wire transfer in immediately available funds to an account designated by OHM.
(c) The Voting Securities issued pursuant to an exercise of an
Anti-Dilution Option shall be duly authorized, validly issued and fully paid
and non-assessable.
(d) OHM shall reserve for issuance at all times during the period any
Anti-Dilution Option is exercisable that number of Voting Securities equal to
the number of Restricted Securities issuable upon exercise of each
Anti-Dilution Option.
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<PAGE> 27
2.2 INDEPENDENT DIRECTORS. For so long as the WMX Group owns at least 20%
of the outstanding Voting Securities, WMX shall take such action as may be
reasonably within its control so that OHM's Board of Directors at all times
includes at least three directors not affiliated with the WMX Group or employed
by OHM or its subsidiaries (the "Independent Directors").
2.3 TRANSACTIONS WITH OHM. For so long as the WMX Group is the Beneficial
Owner of at least 20% of the outstanding Voting Securities, no member of the
WMX Group shall attempt to enter, or enter into any material transaction or
agreement, out of the ordinary course of business, other than transactions
contemplated by Section 2.4 hereof, with OHM or its subsidiaries unless such
transaction or agreement is approved by a majority of the Independent Directors
or a committee including only Independent Directors.
2.4 WMX GROUP ACQUISITION OF ADDITIONAL VOTING SECURITIES. For so long as
the WMX Group is the Beneficial Owner of at least 20% of the outstanding Voting
Securities and whether or not the Term of the Agreement for purposes of Article
1 hereof has expired, no member of the WMX Group shall, directly or indirectly,
propose to purchase, attempt to purchase or purchase or otherwise acquire any
Voting Securities (including by conversion of securities convertible into
Voting Securities, by merger or by other business combination), or make any
public announcement with respect thereto, except acquisitions to the Ownership
Limit pursuant to Section 1.1 hereof, unless (i) such purchase or other
acquisition is pursuant to an offer for all of the outstanding Voting
Securities at the same price per share and (ii) such purchase or other
acquisition is either (x) approved by the Independent Directors or a committee
including only Independent Directors or (y) if not so approved, approved by a
majority of the outstanding Voting Securities (other than the Restricted
Securities beneficially owned by the WMX Group) at a meeting of shareholders
called for that purpose pursuant to the provisions of Article X of OHM's
Amended and Restated Articles of Incorporation in effect on the date hereof.
2.5 BOARD REPRESENTATION. Immediately following the Closing Date, OHM will
elect to its Board of Directors three qualified designees of the WMX Group
mutually acceptable to the WMX Group and OHM. Thereafter, for so long as the
WMX Group is the Beneficial Owner of at least 20% of the outstanding Voting
Securities or the Anti-Dilution Option has not expired, OHM will include among
its Board of Directors' nominees for election a number of qualified designees
acceptable to the WMX Group and OHM such that the percentage of the Board of
Directors proposed to be composed of such designees is proportionately equal
(to the lowest corresponding whole directorship) to the percentage of
outstanding Voting Securities which the WMX Group then has Beneficial
Ownership.
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<PAGE> 28
2.6 LISTING ON SECURITIES EXCHANGES. For so long as the WMX Group is the
Beneficial Owner of at least 20% of the outstanding Voting Securities, OHM will
list the Restricted Securities, and will maintain the listing thereof, on each
national securities exchange on which any Common Stock may be listed, subject
to official notice of issuance, the Restricted Securities.
2.7 FILE REPORTS AND COOPERATE IN RULE 144 TRANSACTIONS. For as long as the
WMX Group shall continue to hold any Voting Securities, OHM shall use
reasonable efforts to file on a timely basis all annual, quarterly and other
reports required to be filed by it under Sections 13 and 15(d) of the Exchange
Act, and the Rules and Regulations of the Commission thereunder, as amended
from time to time. In the event of any proposed sale of Voting Securities by
any member of the WMX Group pursuant to Section 1.8(a)(iii) above, OHM shall
cooperate with the WMX Group so as to enable such sales to be made in
accordance with applicable laws, rules and regulations, the requirements of
OHM's transfer agent and the reasonable requirements of the broker through
which the sales are proposed to be executed, and shall, upon request, furnish
unlegended certificates representing Voting Securities in such numbers and
denominations as the transferor shall reasonably require for delivery pursuant
to such sales.
2.8 DEFINITIONS. For purposes of Article 1 and Article 2 of this Agreement,
the following terms shall have the following meanings.
(a) AFFILIATE. "Affiliate" shall have the meaning ascribed to it in Rule
12b-2 of the General Rules and Regulations under the Exchange Act, as in
effect on the date hereof.
(b) BENEFICIAL OWNER. A person shall be deemed a "Beneficial Owner" of or
to have "Beneficially Owned" any Voting Securities (i) in accordance with the
term "beneficial ownership" as defined in Rule 13d-3 under the Exchange Act,
as in effect on the date hereof, and (ii) shall also include Voting
Securities which such person or any Affiliate of such person has the right to
acquire (whether such right is exercisable immediately or only after the
passage of time) pursuant to any agreement, arrangement or understanding or
upon the exercise of conversion rights, exchange rights, warrant or options,
or otherwise.
(c) PERSON. A "person" shall mean any individual, firm, corporation,
partnership or other entity.
(d) TERM OF THIS AGREEMENT. "Term of this Agreement" for purposes of
Article 1 hereof, but not for Article 2 hereof, shall mean a period
commencing with the date of this Agreement and ending on the first to occur
of (i) the failure of OHM to pay, on written demand, a copy of which
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<PAGE> 29
shall be sent to the Independent Directors, any of OHM's Reimbursement
Obligations as such term is defined in Section 9.6 of the Reorganization
Agreement following the payment by WMX of any amounts under the guarantee or
guarantees provided for in Section 9.6 of the Reorganization Agreement, or
(ii) the date that the WMX Group is the Beneficial Owner of Restricted
Securities constituting less than 20% of the then outstanding Voting
Securities and the Option Period has expired without exercise of the
Anti-Dilution Option.
(e) VOTING SECURITIES. "Voting Securities" includes Common Stock and any
other securities of OHM entitled to vote generally for the election of
directors, in each case now or hereafter outstanding.
(f) WMX GROUP. "WMX Group" shall mean WMX, Rust and their respective
Affiliates (regardless of whether such person is an Affiliate on the date
hereof), both in their individual capacities and collectively. An individual
shall not be deemed to be an Affiliate for purposes of this definition if
such individual is the Beneficial Owner of less than 50,000 shares of Voting
Securities solely for investment purposes and is not a member of a "group"
which includes the WMX Group as defined by Section 13(d) of the Exchange Act.
3.0 CERTAIN BUSINESS AGREEMENTS
3.1 WMX AND AFFILIATES RESTRICTIVE COVENANTS.
(a) Neither WMX nor Rust, or their respective wholly-owned (directly or
indirectly) subsidiaries, which do not include Wheelabrator Technologies Inc.
and Waste Management International plc and their respective subsidiaries
(collectively, the "WMX Affiliates") shall, for a period of seven years from
the Closing Date, engage in North America in the business of providing field
services for the on-site remediation of hazardous waste, radioactive
materials, mixed waste, waste contaminated with petroleum, hydrocarbons,
crude oil, PCBs, or any "Hazardous Substances" as such term is defined in the
Comprehensive Environmental Response, Compensation and Liability Act of 1980
as amended ("CERCLA") (individually and collectively, "Contaminants"), which
services involve the on-site treatment (in-situ, ex-situ, chemical, physical,
thermal, biological or otherwise), neutralization, destruction,
recharacterization, detoxifying, dewatering, excavation or staging (for
removal, storage, treatment, disposal or otherwise) of Contaminants, whether
or not such services (i) are provided on an emergency response, planned,
on-going, periodic, or other basis, or (ii) are provided for private sector
or governmental clients, including without limitation, state and local
governments and federal government agencies such
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<PAGE> 30
as the Department of Defense, the Department of Energy, Department of the
Interior, and the Environmental Protection Agency (the "Business"); provided,
however, that the Business shall not include (A) services for loading,
removal and transportation to an off-site treatment, storage or disposal
facility of Contaminants which have already been staged or prepared (in drum,
bulk or otherwise) for such removal and transportation, (B) services
typically performed in the industrial cleaning and maintenance services
businesses or nuclear service business at operating chemical, industrial,
manufacturing, refining, utility or other operating facilities in connection
with the servicing for, or support of such facilities (e.g.: routine
maintenance; industrial cleaning; special services such as filter pressing,
centrifuging and drying of various wastes; cleaning of lagoons and tanks for
re-use; packaging of wastes related to these services for storage on-site or
shipment off-site); (C) services performed in the decontamination or
decommissioning of nuclear power plants in the electric utilities industry;
(D) services provided in-plant for the analysis, management and staging for
transportation or disposal at an off-site treatment, or disposal facility of
Contaminants which are generated in the ordinary course of an on-going
manufacturing or industrial process; (E) services provided by a WMX Affiliate
incidental to the on-going operations of a treatment, storage or disposal
facility owned or operated by such WMX Affiliate in the ordinary course of
the business of such facility, (F) engineering, design, program management,
or construction management services typically performed in connection with an
environmental restoration program; (G) on-site environmental remediation
services which are provided by a contractor or other person not directly or
indirectly affiliated with a WMX Affiliate under a subcontract or teaming
arrangement with a WMX Affiliate, provided that Rust has complied with its
obligations under Section 3.3 hereof with respect to such services; or (H) on
site environmental remediation services in connection with and incidental to
services of the type described in (A) and (B) above; provided that the price
for such remediation services (excluding the price of waste loading, removal,
transportation and disposal) does not exceed $100,000 per project.
(b) Notwithstanding anything in this Agreement to the contrary, neither
WMX nor any WMX Affiliate shall be prohibited from acquiring the capital
stock or assets of any other entity unless such entity's predominate business
is the Business and PROVIDED, FURTHER, that if WMX or the WMX Affiliate shall
acquire the capital stock or assets of any other entity engaged in the
Business, WMX or the WMX Affiliate shall promptly offer to sell such Business
to OHM at a price equal to the fair market value thereof. WMX or the WMX
Affiliate shall make such offer by giving OHM
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<PAGE> 31
prompt written notice of such offer, disclosing all material information
pertaining to such Business, the fair market value thereof, and such other
terms and conditions to such offer as may be reasonable. OHM shall have a
period of 60 days after receipt of such notice to elect to purchase such
Business at such price and on such terms and conditions, which election shall
be in writing and shall be signed by a duly authorized officer of OHM.
Should OHM fail to purchase such Business, WMX or the WMX Affiliate shall
nevertheless be required to dispose of such Business.
(c) Notwithstanding the failure by OHM to purchase any Business pursuant
to the preceding paragraph, prior to selling any Business to any third party,
WMX or the WMX Affiliate shall give OHM prompt written notice of any such
proposed sale or other disposition of a Business, disclosing all material
information pertaining to such third party sale, including, without
limitation, the price and other terms and conditions of such sale, and
offering to sell such Business to OHM for such price and on such terms and
conditions. OHM may elect within 15 days following receipt of such notice
(the "Option Period") to purchase such Business at such price and on such
terms and conditions as were contemplated in the third party sale, which
election shall be in writing and shall be signed by a duly authorized officer
of OHM. If OHM shall not have exercised its right to purchase in accordance
with the preceding sentence, WMX or the WMX Affiliate may, within 90 days of
the expiration of the Option Period, enter into a binding agreement to sell
or otherwise dispose of such Business to (but only to) the person who was the
subject of the third party sale upon (but only upon) the material terms and
conditions offered to OHM pursuant to the preceding sentence. If for any
reason such a binding agreement shall not have been entered into within such
90-day period or the transaction contemplated thereby shall not be
consummated, WMX or the WMX Affiliate shall be obligated to offer OHM the
opportunity to purchase such Business in accordance with the terms of this
paragraph before making any sale or disposition of such Business, whether to
the same third party or to a different third party and whether on the same
material terms and conditions or on different terms and conditions.
(d) Neither WMX nor the WMX Affiliates shall, for a period commencing from
the date of this Agreement and ending two years following the Closing Date,
solicit, employ or offer employment to or agree to employ any employee of the
Division other than an employee of the Division who is not offered employment
by OHM or its subsidiaries immediately following the Closing.
3.2 BLUE PENCIL PROVISIONS. If any provision of Section 3.1, as applied to
any party or to any circumstances, is adjudged by a court to be invalid or
unenforceable, the same will in no
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<PAGE> 32
way affect any other provision of the said Section 3.1 or any other part of
this Agreement, the application of such provision in any other circumstances,
or the validity or enforceability of this Agreement. If any such provision, or
any part thereof, is held to be unenforceable because of the duration of such
provision or the area covered thereby, the parties agree that the court making
such determination will have the power to reduce the duration and/or area of
such provision, and/or to delete specific words or phrases, and in its reduced
form such provision will then be enforceable and will be enforced. Upon breach
of any provision of Section 3.1, the other party hereto will be entitled to
injunctive relief, since the remedy at law would be inadequate and
insufficient. In addition, such other party will be entitled to such damages
as it can show it has sustained by reason of such breach.
3.3 PREFERRED PROVIDER STATUS. For so long as the WMX Group owns at least
20% of the outstanding Voting Securities, WMX, on behalf of itself and the WMX
Affiliates, agrees and agrees to cause the WMX Affiliates to agree that OHM
will be a Preferred Provider with respect to any and all services coming within
the scope of the Business, as defined in Section 3.1 (whether as prime
contractor, subcontractor or otherwise) that WMX or the WMX Affiliates contract
for, control, direct, influence or subcontract, provided it is not violative of
law, rule, regulation or other contractual obligations. Rust shall provide OHM
and its subsidiaries access to and the services of its engineering, consulting,
design and project management services personnel on the same basis and at the
same cost as Rust provides them to the WMX Affiliates. For so long as the WMX
Group owns at least 20% of the outstanding Voting Securities, OHM, on behalf of
itself and its subsidiaries (the "OHM Affiliates"), agrees and agrees to cause
the OHM Affiliates to agree, that WMX Affiliates will be a Preferred Provider
with respect to all engineering, consulting and design, environmental and waste
management services commonly provided by the WMX Affiliates (whether as prime
contractor, subcontractor or otherwise) that OHM or the OHM Affiliates contract
for, control, direct, influence or subcontract, provided it is not violative of
law, rule, regulation or other contractual obligations. As used herein, the
term "Preferred Provider" means that the person purchasing or contracting for
such services (the "Purchaser") shall not purchase such services from any third
party unless the Purchaser has reasonably determined in good faith that the
overall value, in terms of price, terms and conditions, quality, documentation,
service and other matters, of such services from parties other than the
Preferred Provider significantly exceeds the value of such services available
from the Preferred Provider, provided that the Purchaser shall be excused from
the foregoing obligation with respect to any specific provision of services if
(i) the Preferred Provider has failed to respond within a reasonable period of
time to a request by the Purchaser for a price quotation or other terms or
information with respect to the services or has failed to commit to provide
such services within
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<PAGE> 33
the time period in which the Purchaser shall have required such services to be
provided, which time period, in either case, shall not be substantially shorter
than the time period that the Purchaser would have required from or allowed to
a third party or, if the Preferred Provider shall have made no such commitment,
within a reasonable period of time after the Purchaser has requested them, or
(ii) in the Purchaser's reasonable, good faith judgment, the particular project
or product is not appropriate for the Preferred Provider in light of the nature
of the Preferred Provider's expertise and experience with similar projects.
3.4 GUARANTEED REMEDIATION PROJECTS. During the period commencing on the
Closing Date and ending on December 31, 1996, WMX shall, or shall cause its
affiliates to, contract with OHM to provide environmental remediation services
to WMX or its affiliates involving revenues to OHM prior to December 31, 1996
of at least $20,000,000 with respect to services typically performed by OHM
(the "Revenue Amount"). Such services shall be performed at mutually agreed
upon rates, which may include as appropriate and as mutually agreed to rates
established from time to time by OHM's government cost accounting system
("OHM's Government Rates"). In the event WMX shall have contracted, or caused
its affiliates to contract with OHM for environmental remediation services
which involve an amount of revenues to OHM prior to December 31, 1996, which
are in an amount less than the Revenue Amount (the "Revenue Shortfall"), WMX
shall pay to OHM an amount equal to 10% of the difference between the Revenue
Amount and the Revenue Shortfall.
4.0 REPRESENTATIONS AND WARRANTIES OF OHM.
OHM represents and warrants to Rust and WMX as follows:
4.1 CORPORATE EXISTENCE, DUE AUTHORIZATION, AND EXECUTION OF OHM. OHM is a
corporation duly organized, validly existing, and in good standing under the
laws of the State of Ohio, with full corporate power and authority to execute
and deliver this Agreement and all other agreements to be delivered by OHM, to
perform OHM's obligations hereunder and thereunder, and to consummate the
transactions contemplated hereby and thereby. This Agreement and each of the
other agreements contemplated hereby and the consummation of the transactions
contemplated hereby and thereby have been duly authorized by all necessary
corporate action of OHM. This Agreement has been duly executed and delivered by
OHM and will, after approval by its shareholders, constitute a legal, valid,
and binding obligation of OHM, enforceable against OHM in accordance with its
terms.
4.2 NO CONFLICTS. The execution and delivery of this Agreement and each of
the other agreements contemplated hereby and the consummation of the
transactions contemplated hereby and thereby will not conflict with, or result
in any violation of or default under, any provision of the Restated Articles of
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<PAGE> 34
Incorporation or Regulations of OHM, or of any agreement or instrument binding
upon OHM.
5.0 REPRESENTATIONS AND WARRANTIES OF WMX AND RUST.
5.1 CORPORATE EXISTENCE, DUE AUTHORIZATION, AND EXECUTION OF RUST. Rust and
WMX are corporations duly organized, validly existing, and in good standing
under the laws of the State of Delaware, with full corporate power and
authority to execute and deliver this Agreement and all other agreements to be
delivered by them, to perform their obligations hereunder and thereunder, and
to consummate the transactions contemplated hereby and thereby. This Agreement
and each of the other agreements contemplated hereby and the consummation of
the transactions contemplated hereby and thereby will, at the Closing, have
been duly authorized by all necessary corporate action of Rust and WMX,
respectively. This Agreement has been duly executed and delivered by Rust and
WMX, respectively, and constitutes a legal, valid, and binding obligation of
each of them, enforceable against each of them in accordance with its terms.
5.2 NO CONFLICTS. The execution and delivery of this Agreement and each of
the other agreements contemplated hereby and the consummation of the
transactions contemplated hereby and thereby will not conflict with, or result
in any violation of or default under, any provision of the Certificate of
Incorporation or By-Laws of Rust or WMX, or of any agreement or instrument
binding upon Rust, WMX or their affiliates.
6.0 MISCELLANEOUS.
6.1 SPECIFIC ENFORCEMENT. The parties acknowledge and agree that OHM would
be irreparably damaged in the event any of the provisions of this Agreement
were not performed in accordance with their specific terms or were otherwise
breached. It is accordingly agreed that OHM shall be entitled to an injunction
or injunctions to prevent breaches of this Agreement and to specifically
enforce this Agreement and the terms and provisions thereof in any action
instituted in any court of the United States or any state thereof having
subject matter jurisdiction, in addition to any other remedy to which OHM may
be entitled, at law or in equity.
6.2 MODIFICATION; WAIVER. This Agreement may be modified in any manner and
at any time by written instrument executed by the parties hereto. Any of the
terms, covenants, and conditions of this Agreement may be waived at any time by
the party entitled to the benefit of such term, covenant, or condition.
6.3 NOTICES. All notices, requests, demands, claims, and other
communications hereunder shall be in writing and shall be delivered by
certified or registered mail (first class postage pre-paid), guaranteed
overnight delivery, or facsimile transmission:
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<PAGE> 35
(a) if to OHM to:
16406 U.S. Route 224 East
Findlay, Ohio 45840
Attention: General Counsel
Telecopy: (419) 424-4985
(b) if to Rust to:
100 Corporate Parkway
Birmingham, Alabama 35242
Attention: General Counsel
Telecopy: (205) 995-7914
(c) if to WMX to:
3003 Butterfield Road
Oak Brook, Illinois 60521
Attention: General Counsel
Telecopy: (708) 218-1553
(d) or, in each case, at such other address or to such other person as may
be specified in writing to the other party.
6.4 PARTIES IN INTEREST; ASSIGNMENT. This Agreement and all the provisions
hereof shall be binding upon and inure to the benefit of the parties hereto and
their respective successors and permitted assigns, but neither this Agreement
nor any of the rights, interests, and obligations hereunder shall be assigned
by any of the parties hereto without the prior written consent of the other
parties hereto. Nothing in this Agreement, whether expressed or implied, shall
be construed to give any person other than the parties hereto any legal or
equitable right, remedy, or claim under or in respect of this Agreement.
6.5 COUNTERPARTS. This Agreement may be executed in one or more
counterparts, all of which shall constitute one and the same instrument.
6.6 HEADINGS. The article and section headings of this Agreement are for
convenience of reference only and shall not be deemed to alter or affect the
meaning or interpretation of any provisions hereof.
6.7 GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the internal laws of the State of Ohio applicable to contracts
made and to be performed therein.
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<PAGE> 36
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the date first above written.
OHM CORPORATION
By: __________________________________________
Title:
RUST INTERNATIONAL INC.
By: __________________________________________
Title:
WMX TECHNOLOGIES, INC.
By: __________________________________________
Title:
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<PAGE> 37
SCHEDULE 9.10
MERGER AGREEMENT
THIS MERGER AGREEMENT ("Merger Agreement") dated as of
___________________, 1995 by and between Rust Environmental Inc., a Delaware
corporation ("Environmental") and ________________, a wholly-owned subsidiary
("Acquisition") of OHM Corporation, an Ohio corporation ("OHM") (Environmental
and Acquisition are hereinafter sometimes collectively referred to as the
"Constituent Corporations").
WHEREAS, Environmental is a newly formed corporation owned by Rust
Remedial Services Inc. a Delaware corporation ("Remedial"), Enclean
Environmental Services Group, Inc., a Delaware corporation ("Enclean"), and
Rust Federal Services Inc., a Delaware corporation ("RFS"). Acquisition is a
newly formed Ohio corporation and wholly-owned subsidiary of OHM.
WHEREAS, the authorized capital stock of Acquisition consists of 100
shares of common stock, par value $1.00 per share, and all shares issued and
outstanding are owned by OHM. The authorized capital stock of Environmental
consists of 1,000 shares of common stock, par value $1.00.
WHEREAS, In connection with the Agreement and Plan of Reorganization
dated as of December 5, 1994 among OHM, Remedial, Enclean, Environmental and
Rust International Inc., a Delaware corporation ("Rust") (the "Agreement"),
Remedial, Enclean, RFS and OHM desire to effect a merger of Environmental with
and into Acquisition pursuant to the provisions of the General Corporation Law
of the State of Delaware (the "DGCL") and the General Corporation Law of the
State of Ohio (the "OGCL").
WHEREAS, the respective Boards of Directors of Environmental and
Acquisition have determined that it is advisable and in the best interests of
each corporation that Environmental merge with and into Acquisition upon the
terms and subject to the conditions provided herein.
WHEREAS, the Board of Directors of Acquisition has, by resolution duly
adopted, approved this Merger Agreement and directed that it be executed by the
undersigned officers.
WHEREAS, the Board of Directors of Environmental has, by resolution
duly adopted, approved this Merger Agreement and directed that it be executed
by the undersigned officers and that it be submitted to a vote of
Environmental's stockholders.
WHEREAS, In consideration of the mutual agreements contained herein,
the parties agree that Environmental shall be merged with and into Acquisition
and that the terms and conditions of the merger, the mode of carrying the
merger into effect, the manner of
<PAGE> 38
converting the shares of the Constituent Corporations and certain other
provisions relating thereto shall be as hereinafter set forth.
ARTICLE I
THE MERGER
1.01 SURVIVING CORPORATION. Subject to the terms and provisions of
this Merger Agreement, and in accordance with the DGCL and the OGCL, at the
Time of Merger (as defined in Section 1.07 hereof) Environmental shall be
merged with and into Acquisition (the "Merger"). Acquisition shall be the
surviving corporation (hereinafter sometimes called the "Surviving
Corporation") of the Merger and shall continue its corporate existence under
the laws of the State of Ohio. The name, identity, existence, rights,
privileges, powers, franchises, properties and assets of Acquisition shall
continue unaffected and unimpaired by the Merger. At the Effective Time, the
identity and separate existence of Environmental shall cease, and all of the
rights, privileges, powers, franchises, properties and assets of Environmental
shall be vested in Acquisition.
1.02 EFFECT OF THE MERGER. At the Effective Time, the Merger shall
have the effects provided for herein and in Section 1701.82 of the OGCL and
Section 259 of the DGCL.
1.03 ARTICLES OF INCORPORATION. As of the Time of Merger, the
Articles of Incorporation of Acquisition, as in effect immediately prior to the
Time of Merger, shall be the Articles of Incorporation of the Surviving
Corporation until thereafter duly altered, amended or repealed in accordance
with the provisions thereof and applicable law.
1.04 REGULATIONS. As of the Time of Merger the Regulations of
Acquisition, as in effect immediately prior to the Time of Merger, shall be the
Regulations of the Surviving Corporation until thereafter duly altered, amended
or repealed in accordance with the provisions thereof, the Articles of
Incorporation of the Surviving Corporation and applicable law.
1.05 DIRECTORS OF THE SURVIVING CORPORATION. At the Time of
Merger, each person who is a director of Acquisition immediately prior to the
Time of Merger shall become a director of the Surviving Corporation and each
such person shall serve as a director of the Surviving Corporation for the
balance of the term for which such person was elected a director of Acquisition
and until his successor is duly elected and qualified or until his earlier
death, resignation or removal in the manner provided in the Regulations or
Articles of Incorporation of Surviving Corporation and the laws of the State of
Ohio.
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<PAGE> 39
1.06 OFFICERS OF THE SURVIVING CORPORATION. At the Time of Merger,
each person who is an officer of Acquisition immediately prior to the Time of
Merger shall become an officer of the Surviving Corporation with each such
person to hold the same office in the Surviving Corporation as he held in
Acquisition immediately prior to the Time of Merger.
1.07 TIME OF MERGER. The Merger shall become effective in
accordance with the provisions of Section 1701.81 of the OGCL and Section 253
of the DGCL, upon the later to occur of (a) completion of the filing of a
certificate of merger with the Secretary of State of the State of Ohio, and (b)
the filing of a certificate of ownership and merger with the Secretary of State
of the State of Delaware. The date and time when the Merger shall become
effective is herein referred to as the "Time of Merger."
1.08 ADDITIONAL ACTIONS. If, at any time after the Time of Merger,
the Surviving Corporation shall consider or be advised that any further
assignments or assurances in law or any other acts are necessary or desirable
(a) to vest, perfect or confirm, of record or otherwise, in the Surviving
Corporation, title to and possession of any property or right of Environmental
acquired or to be acquired by reason of, or as a result of, the Merger, or (b)
otherwise to carry out the purpose of this Merger Agreement, Environmental and
its proper officers and directors shall be deemed to have granted hereby to the
Surviving Corporation an irrevocable power of attorney to execute and deliver
all such proper deeds, assignments and assurances in law and to do all acts
necessary or proper to vest, perfect or confirm title to and the possession of
such property or rights in the Surviving Corporation and otherwise to carry out
the purposes of this Merger Agreement; and the proper officers and directors of
the Surviving Corporation are hereby fully authorized in the name of
Acquisition or otherwise to take any and all such action.
ARTICLE II
MANNER, BASIS AND EFFECT OF CONVERTING SHARES
2.01 CONVERSION OF SHARES. At the Time of Merger:
(a) each share of Acquisition common stock ("Acquisition
Common Stock") issued and outstanding immediately prior to the Time of
Merger shall, by virtue of the Merger and without any action on the
part of the holder thereof, continue as shares of Common Stock of the
Surviving Corporation;
(b) each share of Environmental common stock ("Environmental
Common Stock") issued and outstanding immediately prior to the Time of
Merger shall be converted, by virtue of the Merger and without any
action on the part of the holder thereof, into the right to receive
106,380 shares of OHM Common Stock (the "Merger Consideration");
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<PAGE> 40
2.02 EFFECT OF CONVERSION. At and after the Time of Merger, until
so surrendered, each share certificate that immediately prior to the Time of
Merger represented an outstanding share of Environmental Common Stock shall be
deemed for all corporate purposes to evidence the right to receive the Merger
Consideration into which such shares are converted pursuant to section 2.01(b)
of this Merger Agreement.
ARTICLE III
APPROVAL; AMENDMENT; TERMINATION; MISCELLANEOUS
3.01 APPROVAL. This Merger Agreement shall be submitted for
approval by the stockholders of Environmental.
3.02 AMENDMENT. Subject to applicable law, this Merger Agreement
may be amended, modified or supplemented by written agreement of the
Constituent Corporations at any time prior to the Time of Merger, except that
after the approval contemplated by Section 3.01 hereof, there shall be no
amendments that would (a) alter or change the amount or kind of shares to be
received by stockholders in the Merger, (b) alter or change any term of the
Articles of Incorporation or Regulations of Acquisition pursuant to Section
1.03 hereof, or (c) alter or change any of the terms and conditions of this
Merger Agreement if such alteration or change would adversely affect the
holders of any class of stock of either of the Constituent Corporations.
3.03 ABANDONMENT. At any time prior to the Effective Time, this
Merger Agreement may be terminated and the Merger may be abandoned by the Board
of Directors of either Acquisition or Environmental, or both, notwithstanding
approval of this Merger Agreement by the sole shareholder of Acquisition or the
stockholders of Environmental, or both.
3.04 COUNTERPARTS. This Merger Agreement may be executed in one or
more counterparts, each of which shall be deemed to be an original and the same
agreement.
3.05 STATUTORY AGENT IN OHIO. The name and address of the
statutory agent in Ohio upon whom any process, notice or demand against
Environmental or the Surviving Corporation may be served is:
Randall M. Walters
OHM CORPORATION
16406 U.S. Route 224 East
Findlay, Ohio 45840
3.06 DESIGNATED AGENT IN DELAWARE. The Surviving Corporation
agrees that it may be served with process in the State of Delaware in any
proceeding for enforcement of any obligation of Environmental, as well as for
enforcement of any obligation of the
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<PAGE> 41
Surviving Corporation arising from the Merger, and the Surviving Corporation
irrevocably appoints the Delaware Secretary of State as its agent to accept
service of process in any such suit or other proceedings; a copy of such
process shall be mailed by the Delaware Secretary of State to:
Randall M. Walters
OHM CORPORATION
16406 U.S. Route 224 East
Findlay, Ohio 45840
IN WITNESS WHEREOF, Acquisition and Environmental have caused this
Merger Agreement to be signed by their respective duly authorized officers as
of the date first above written.
[ACQUISITION]
ATTEST: (an Ohio corporation)
By: By:
-------------------- --------------------
RUST ENVIRONMENTAL INC.
ATTEST: (a Delaware corporation)
By: By:
-------------------- --------------------
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<PAGE> 1
================================================================================
- --------------------------------------------------------------------------------
STOCK PURCHASE AGREEMENT
BY AND BETWEEN
HUIZENGA FAMILY FOUNDATION, INC.
AND
OHM CORPORATION
DATED AS OF MARCH 28, 1995
- --------------------------------------------------------------------------------
================================================================================
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Section Page
- ------- ----
<S> <C>
RECITALS ................................................................................................... 1
ARTICLE I. ISSUANCE AND PURCHASE OF COMMON STOCK .......................................................... 1
1.1 Sale of Common Stock ......................................................................... 1
1.2 Legend 1
ARTICLE II. CLOSING ....................................................................................... 2
ARTICLE III. REPRESENTATIONS AND WARRANTIES OF THE ISSUER ................................................. 2
3.1 Corporate Status ............................................................................. 2
3.2 Power and Authority .......................................................................... 3
3.3 Non-Contravention ............................................................................ 3
3.4 Consents/Approvals ........................................................................... 3
3.5 Enforceability ............................................................................... 3
3.6 Capitalization ............................................................................... 4
3.7 SEC Reports .................................................................................. 4
3.8 Governing Documents .......................................................................... 4
3.9 Financial Statements ......................................................................... 4
3.10 Changes Since December 31, 1994. ............................................................. 5
3.11 Litigation. .................................................................................. 5
ARTICLE IV. REPRESENTATIONS AND WARRANTIES OF INVESTOR .................................................... 5
4.1 Corporate Status ............................................................................. 5
4.2 Power and Authority .......................................................................... 5
4.3 Non-Contravention ............................................................................ 5
4.4 Consents/Approvals ........................................................................... 6
4.5 Enforceability ............................................................................... 6
4.6 Affiliate of WMX Technologies, Inc. .......................................................... 6
4.7 Investment Intent ............................................................................ 6
4.8 Investor Knowledge. .......................................................................... 7
4.9 No Commissions ............................................................................... 7
ARTICLE V. COVENANTS ...................................................................................... 7
5.1 Covenants of the Issuer and the Investor ..................................................... 7
5.2 Additional Covenant of Investors ............................................................. 8
</TABLE>
i
<PAGE> 3
TABLE OF CONTENTS
(CONTINUED)
<TABLE>
<CAPTION>
Section Page
- ------- ----
<S> <C>
ARTICLE VI. DEFINITIONS ................................................................................. 8
6.1 Defined Terms .............................................................................. 8
6.2 Other Definitional Provisions .............................................................. 10
ARTICLE VII. REGISTRATION RIGHTS ........................................................................ 11
7.1 Transfer of Registration Rights ............................................................ 11
7.2 Piggyback Registration ..................................................................... 11
7.3 Holder Requested Registration .............................................................. 12
7.4 Registration Procedures .................................................................... 13
7.5 Further Information ........................................................................ 16
7.6 Registration During Holding Period ......................................................... 16
ARTICLE VIII. INDEMNIFICATION ........................................................................... 16
8.1 Indemnification Relating to Registration Rights ............................................ 16
8.2 Indemnification Procedures ................................................................. 18
ARTICLE IX. MISCELLANEOUS ............................................................................... 19
9.1 Notices .................................................................................... 19
9.2 Non-Waiver of Remedies and Actions ......................................................... 20
9.3 Headings ................................................................................... 20
9.4 Counterparts ............................................................................... 20
9.5 Successors and Assigns ..................................................................... 20
9.6 Survival ................................................................................... 20
9.7 Enforceability ............................................................................. 20
9.8 Law Governing .............................................................................. 20
9.9 Severability ............................................................................... 20
9.10 Remedies ................................................................................... 20
9.11 Expenses ................................................................................... 21
9.12 Entire Agreement ........................................................................... 21
</TABLE>
ii
<PAGE> 4
STOCK PURCHASE AGREEMENT
This STOCK PURCHASE AGREEMENT (this "Agreement") is entered
into as of March 28, 1995, by and between HUIZENGA FAMILY FOUNDATION, INC.
(together with its permitted successors and assigns, the "Investor"), and OHM
CORPORATION, an Ohio corporation (together with its permitted successors and
assigns, the "Issuer"). Capitalized terms used herein but not otherwise defined
herein are defined in Section 6.1.
RECITALS
WHEREAS, subject to the terms and conditions set forth herein,
Investor desires to purchase, and Issuer desires to issue and sell to Investor,
certain shares of Issuer's common stock, par value $.10 per share (the "Common
Stock").
NOW, THEREFORE, in consideration of the promises and mutual
covenants contained herein, the parties hereto agree as follows:
ARTICLE I.
ISSUANCE AND PURCHASE OF COMMON STOCK
1.1 Sale of Common Stock. Subject to the terms and conditions
set forth herein, and simultaneously with the execution and delivery of this
Agreement, Issuer will sell to Investor and Investor will purchase from Issuer
for an aggregate purchase price of four million five hundred thousand dollars
($4,500,000) (the "Purchase Price"), five hundred thousand (500,000) shares of
Common Stock (the "Shares"). Pursuant to such purchase and sale, Investor will
pay, by wire transfer of immediately available funds to an account designated in
writing by the Issuer, the Purchase Price for all of the Shares and the Issuer
will deliver to Investor certificates for the Shares duly registered in the name
of Investor or its designee.
1.2 Legend. Any certificate or certificates representing
the Shares shall bear the following legend:
THE SECURITIES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT") OR UNDER
ANY APPLICABLE STATE LAW AND MAY NOT BE TRANSFERRED, SOLD OR
OTHERWISE DISPOSED OF IN THE ABSENCE OF AN EFFECTIVE
REGISTRATION
<PAGE> 5
UNDER THE ACT OR AN OPINION OF COUNSEL REASONABLY SATISFACTORY
TO THE ISSUER THAT SUCH REGISTRATION IS NOT REQUIRED UNDER THE
ACT AND THE RULES AND REGULATIONS PROMULGATED THEREUNDER OR
UNDER APPLICABLE STATE SECURITIES LAWS, AND FURTHER PROVIDED
THAT SUCH TRANSFER IS EFFECTED IN ACCORDANCE WITH THE
PROVISIONS OF SECTION 5.2(b) OF THAT CERTAIN STOCK PURCHASE
AGREEMENT BY AND BETWEEN THE ISSUER AND HUIZENGA FAMILY
FOUNDATION, INC., DATED AS OF MARCH 28, 1995.
ARTICLE II.
CLOSING
The closing of the transactions contemplated herein (the
"Closing") shall occur concurrently with the execution and delivery of this
Agreement. At the Closing the following shall occur:
(i) Investor shall pay, by wire transfer of immediately available
funds to an account designated in writing by Issuer, the
Purchase Price set forth in Section 1.1;
(ii) Issuer shall deliver to Investor the Shares, each duly
registered in the name of Investor;
(iii) Investor shall deliver to Issuer a Certificate, in a form
satisfactory to Issuer, of Investor certifying that Investor is
not an Affiliate of WMX Technologies, Inc.
ARTICLE III.
REPRESENTATIONS AND WARRANTIES OF THE ISSUER
Issuer represents and warrants to Investor (which
representations and warranties shall not be required or deemed to be updated or
made applicable to any time after the Closing Date) as follows:
3.1 Corporate Status. (a) The Issuer is a corporation
duly organized validly existing and in good standing under the laws of the State
of Ohio.
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(b) The Issuer has all requisite corporate power and authority
to own or lease and operate its properties and to carry on its business as now
conducted.
(c) The Issuer is qualified to do business in all
jurisdictions where its ownership, lease or operation of property or the conduct
of its business requires such qualification, except where the failure to so
qualify would not have a Material Adverse Effect on the Issuer and its
Subsidiaries taken as a whole.
3.2 Power and Authority. The Issuer has the corporate power
and authority to execute and deliver, and to perform its obligations under this
Agreement and the transactions contemplated hereby and thereby, and has taken
all necessary corporate action to authorize the execution, delivery and
performance of this Agreement and the transactions contemplated hereby and
thereby.
3.3 Non-Contravention. None of the execution and delivery by
the Issuer of this Agreement, the consummation of the transactions contemplated
hereby, or the compliance by Issuer with the terms and provisions hereof
(including, without limitation, the issuance to Investor by the Issuer of Shares
as contemplated by and in accordance with this Agreement), violates or will
violate the Amended and Restated Articles of Incorporation or Regulations of the
Issuer or any Requirement of Law applicable to the Issuer, conflicts with or
will conflict with or results or will result in any breach of any term,
condition or provision of, constitutes or will constitute (with due notice or
lapse of time or both) a default under, or results in the creation or imposition
of any Lien upon any of the capital stock or properties or assets of the Issuer
pursuant to the terms of, any mortgage, deed of trust or other material
agreement or instrument to which the Issuer is a party or by which it or any of
its properties is bound, or results in the creation or imposition of any Lien
upon any of the capital stock or properties or assets of the Issuer pursuant to
the terms of any other agreement or instrument to which the Issuer is a party or
by which it or any of its properties is bound.
3.4 Consents/Approvals. (a) No consents, filings,
authorizations or other actions of any Governmental Authority are required for
the Issuer's execution, delivery and performance of this Agreement.
(b) No consent, approval, waiver or other action by any Person
under any contract, agreement, indenture, lease, instrument or other document to
which the Issuer or any of its Subsidiaries is a party or by which any of them
is bound is required or necessary for the execution, delivery and performance by
the Issuer of this Agreement or the consummation of the transactions
contemplated hereby.
3.5 Enforceability. This Agreement has been duly executed and
delivered by the Issuer and constitutes a legal, valid and binding obligation of
the Issuer enforceable against it in accordance with its terms, except as the
same may be limited by public policy restrictions insofar as certain provisions
herein concern rights of indemnification and except as enforceability may be
limited by applicable bankruptcy, insolvency, reorganization,
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moratorium or similar laws affecting the enforcement of creditors' rights
generally and general equitable principles.
3.6 Capitalization. The authorized capital stock of Issuer
consists of 52,000,000 shares, of which 50,000,000 are shares of Common Stock
and 2,000,000 are shares of preferred stock. As of the date hereof, 15,636,465
shares of Common Stock are validly issued and outstanding, fully paid, and
non-assessable, and no shares of preferred stock are issued or outstanding.
Except for 2,850,000 shares of Common Stock issuable pursuant to the OHM
Corporation 1986 Stock Option Plan, as amended (the "1986 Stock Option Plan"),
1,000,000 shares of Common Stock issuable pursuant to the OHM Corporation
Nonqualified Stock Option Plan for Directors (the "Directors' Option Plan"),
100,000 shares of Common Stock issuable pursuant to the Deferred Fee Plan for
Directors (the "Deferred Fee Plan") and 2,395,833 shares of Common Stock
issuable pursuant to conversion of the OHM 8% Convertible Subordinated
Debentures due 2006 (the "Convertible Debentures"), in each case issuable as of
the date hereof, and 10,368,000 shares of Common Stock issuable to Rust
International Inc. pursuant to the Rust Agreement, no other shares of Common
Stock or preferred stock or any rights, agreements, or commitments of any kind
obligating Issuer to issue or sell any other shares of Common Stock or preferred
stock are or will be outstanding or have been or will be authorized. Upon
delivery of the Shares and payment of the Purchase Price such Shares shall be
validly issued, fully paid and non-assessable shares of Common Stock.
3.7 SEC Reports. The Annual Reports on Form 10-K for the year
ended December 31, 1993 and Quarterly Reports on Form 10-Q for the quarters
ended March 31, 1994, June 30, 1994 and September 30, 1994, of the Issuer filed
with the SEC under the Exchange Act, and all other reports and Proxy Statements
required to be filed by the Issuer, including, without limitation, a preliminary
proxy statement filed February 24, 1995 which includes financial statements for
the year ended December 31, 1994, have been duly and timely filed by the Issuer
(all such reports, collectively, the "SEC Reports"). The SEC Reports, when
filed, complied in all material respects with all applicable requirements of the
Exchange Act. None of the SEC Reports, at the time of filing, contained any
untrue statement of a material fact or omitted to state a material fact required
to be stated therein or necessary in order to make the statements therein not
misleading in light of the circumstances in which they were made. Issuer has
delivered to Investor true, accurate and complete copies of the SEC Reports, as
amended, and as in effect as of the date hereof.
3.8 Governing Documents. Issuer has delivered to Investor
true, accurate and complete copies of Issuer's Amended and Restated Articles of
Incorporation and Regulations in effect as of the date hereof.
3.9 Financial Statements. Each of the balance sheets included
in the SEC Reports (including any related notes and schedules) fairly presents
the consolidated financial position of the Issuer as of its date, and the other
financial statements included in the SEC Reports (including any related notes
and schedules) fairly present the consolidated results of operations or other
information included therein of Issuer for the periods or as of the dates
therein set forth in accordance with GAAP consistently applied during the
periods involved
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<PAGE> 8
(except that the interim reports are subject to normal recording adjustments
which might be required as a result of year end audit and do not contain all
required footnote disclosures, and except as otherwise stated therein).
3.10 Changes Since December 31, 1994. Since December 31, 1994
there has been no Material Adverse Change in the Issuer. There has not been any
direct or indirect redemption, purchase or other acquisition of any shares of
the Issuer's capital stock, or any declaration, setting aside or payment of any
dividend or other distribution by the Issuer in respect of its capital stock, or
any issuance of any shares of capital stock of Issuer or any granting to any
person of any option to purchase or other right to acquire shares of capital
stock of Issuer other than pursuant to the Rust Agreement or any employee or
director stock option, stock bonus plan or other employee or director benefit
plan.
3.11 Litigation. There is no suit, action, or legal,
administrative or other proceeding or governmental investigation pending, or to
the best of Issuer's knowledge, threatened, anticipated or contemplated against
Issuer or any of its properties, which, in any single case or in the aggregate,
challenge or question in any respect the validity of, or would prevent or hinder
the consummation of, the transactions contemplated by this Agreement.
ARTICLE IV.
REPRESENTATIONS AND WARRANTIES OF INVESTOR
Investor represents and warrants to the Issuer (which
representations and warranties shall not be required or deemed to be updated or
made applicable to any time after the Closing) as follows:
4.1 Corporate Status. The Investor is a corporation duly
organized validly existing and in good standing under the laws of the State of
Florida.
4.2 Power and Authority. The Investor has the corporate power
and authority to execute and deliver, and to perform its obligations under this
Agreement and the transactions contemplated hereby and thereby, and has taken
all necessary corporate action to authorize the execution, delivery and
performance of this Agreement and the transactions contemplated hereby and
thereby.
4.3 Non-Contravention. None of the execution and delivery by
Investor of this Agreement, the consummation of the transactions contemplated
hereby, or the compliance by Investor with the terms and provisions hereof,
violates or will violate any Requirement of Law applicable to Investor,
conflicts with or will conflict with or results or will result in any breach of
any terms, condition nor provisions of, constitutes or will constitute (with due
notice or lapse of time or both) a default under, any mortgage, deed of trust or
other agreement or instrument to which Investor is a party or by which it or any
of its properties is bound, other than such violations, conflicts, defaults or
breaches which,
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individually and in the aggregate, do not and will not materially and adversely
impair Investor's ability to perform its obligations hereunder or to consummate
the transactions contemplated hereby.
4.4 Consents/Approvals. (a) No consents, filings,
authorizations or actions of any Governmental Authority are required for
Investor's execution, delivery and performance of this Agreement, other than
compliance with any applicable requirements of the Exchange Act.
(b) No consent, approval, waiver or other actions by any
person (other than any Government Authority referred to in Section 4.4(a) above)
under any contract, agreement, indenture, lease, instrument or other document to
which Investor or any of its Subsidiaries is a party or by which any of them is
bound is required or necessary for the execution, delivery and performance by
Investor of this Agreement or the consummation of the transactions contemplated
hereby.
4.5 Enforceability. This Agreement has been duly executed and
delivered by Investor and constitutes a legal, valid and binding obligation of
Investor enforceable against it in accordance with its terms, except as
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization moratorium or similar laws affecting the enforcement of
creditor's rights generally and general equitable principles.
4.6 Affiliate of WMX Technologies, Inc.. Investor is not an
Affiliate of WMX Technologies, Inc.
4.7 Investment Intent. Investor is acquiring the Shares
hereunder for its own account and with no present intention of distributing or
selling such Shares in violation of the Securities Act or any applicable state
securities law. Investor agrees that it will not sell or otherwise dispose of
any of the Shares unless such sale or other disposition has been registered
under the Securities Act or, in the opinion of counsel reasonably satisfactory
to the Issuer, is exempt from registration under the Securities Act and has been
registered or qualified or, in the opinion of such counsel, is exempt from
registration or qualification under applicable state securities laws. Investor
understands that the sale of the Shares being acquired by it hereunder have not
been registered under the Securities Act by reason of their contemplated
issuance in transactions exempt from the registration and prospectus delivery
requirements of the Securities Act pursuant to Section 4(2) thereof, and that
the reliance of the Issuer on such exemption from registration is predicated in
part on these representations and warranties of Investor. Investor acknowledges
that pursuant to Section 1.2 a restrictive legend consistent with the foregoing
has been or will be placed on the certificates for the Shares and related stop
transfer instructions will be noted in the transfer records of the Issuer and/or
its transfer agent for the shares of Issuer's Common Stock. Issuer acknowledges
that, with respect to the requirement of counsel reasonably satisfactory to
Issuer contemplated by this Section and the Legend set forth in Section 1.2
hereof, the law firm of Akerman, Senterfitt & Eidson, P.A., Miami, Florida, is
such reasonably satisfactory counsel.
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4.8 Investor Knowledge. Investor is an accredited investor as
such term is defined in Rule 501 of the General Rules and Regulations under the
Securities Act, and, either alone or with its financial advisor(s), has such
knowledge and experience in financial and business matters that it is capable of
evaluating the merits and risks of the investment to be made by it hereunder.
Investor acknowledges that no representations or warranties of any type or
description have been made to it by any Person with regard to the Issuer, any of
its Subsidiaries, any of their respective businesses, properties or prospects or
the investment contemplated herein, other than the representations and
warranties set forth in Article III hereof.
4.9 No Commissions. Investor has not incurred any obligation
for any finder's or broker's or agent's fees or commissions in connection with
the transactions contemplated hereby.
ARTICLE V.
COVENANTS
5.1 Covenants of the Issuer and the Investor. (a) Filings.
Each of Investor and Issuer shall make on a prompt and timely basis all
governmental or regulatory notifications and filings required to be made by it
for the consummation of the transactions contemplated hereby.
(b) Public Announcements. Except as required by Law or the
policies or rules of any stock exchange (or the NASDAQ-NMS) on which the
Issuer's securities are listed as of the date hereof, the form and content of
all press releases or other public communications of any sort relating to the
subject matter of this Agreement, and the method of their release, or
publication thereof, shall be subject to the prior approval of the parties
hereto, which approval shall not be unreasonably withheld or delayed.
(c) Further Assurances. Each party shall execute and deliver
such additional instruments and other documents and shall take such further
actions as may be necessary or appropriate to effectuate, carry out and comply
with all of the terms of this Agreement and the transactions contemplated hereby
and thereby.
(d) Cooperation. The Issuer and Investor each agree to
cooperate with the other in the preparation and filing of all forms,
notifications, reports and information, if any, required or reasonably deemed
advisable pursuant to any Requirement of Law or the rules of any exchange on
which the Common Stock is traded or the NASDAQ-NMS in connection with the
transactions contemplated by this Agreement and to use their respective
reasonable best efforts jointly to agree on a method to overcome any objections
by any Governmental Authority to any such transactions. Except as may be
specifically required hereunder, neither of the parties hereto or their
respective Affiliates shall be required to agree to take
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any action that in the reasonable opinion of such party would result in or
produce a Material Adverse Effect.
5.2 Additional Covenant of Investors. (a) Investor represents,
warrants, covenants and agrees that (i) it will provide to the Issuer for
inclusion in the Issuer's Proxy Statement for the 1995 Annual Meeting of
Shareholders (the "Proxy Statement") all information concerning Investor and its
Affiliates requested by Issuer and necessary for the preparation of the Proxy
Statement and (ii) such information will not contain any material misstatement
of fact or omit to state any material fact necessary to make the statements, in
light of the circumstances under which they are made, not misleading.
(b) Investor agrees, except as otherwise required by law or
regulatory directive, not to sell or otherwise dispose of any of the Shares
directly or indirectly held by Investor during the Holding Period.
Notwithstanding anything in this Section 5.2 to the contrary, Investor may make
any such sale, transfer or disposition to an Affiliate of Investor which agrees
to be bound by the provisions contained in this Section; provided that such
Affiliate holding such Shares is prevented (in a manner reasonably satisfactory
to the Issuer) from transferring such Shares, by dividend, distribution or
otherwise, to any entity that is not an Affiliate of Investor, until the end of
the Holding Period. Any such agreement of Affiliates of Investor shall be in
writing in a form reasonably satisfactory to the Issuer. The Issuer may impose
stop-transfer instructions with respect to the Shares subject to the foregoing
restrictions set forth above until the end of the Holding Period.
ARTICLE VI.
DEFINITIONS
6.1 Defined Terms. As used herein the following terms shall
have the following meanings:
"Affiliate" shall have the meaning ascribed to it in Rule
12b-2 of the General Rules and Regulations under the Exchange Act, as in effect
on the date hereof.
"Articles of Incorporation" means the Issuer's Amended and
Restated Articles of Incorporation, as the same may be supplemented, amended or
restated from time to time.
"Closing" has the meaning specified in ARTICLE II of this
Agreement.
"Common Stock" has the meaning specified in the Recitals to
this Agreement.
"Cutback Registration" means any registration in which the
managing underwriter advises the Issuer that marketing factors require a
limitation of the number of shares of Common Stock to be underwritten in such
registration.
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"Electing Holder" means any holder of Common Stock, other than
holders of Registrable Securities (in their respective capacities as such), who
has the right to request inclusion of Common Stock held by such holder in a
registration;
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"GAAP" means generally accepted accounting principles in
effect in the United States of America from time to time.
"Governmental Authority" means any nation or government, any
state or other political subdivision thereof, and any entity or official
exercising executive, legislative, judicial, regulatory or administrative
functions of or pertaining to government.
"Holding Period" means the period of time during which
Investor may not transfer any portion of its interest in the Shares commencing
as of the date of Closing and ending upon the earliest to occur of (i)
consummation of the transactions contemplated by the Rust Agreement, (ii)
termination of the Rust Agreement, or (iii) September 30, 1995.
"Issuer" means OHM Corporation, an Ohio corporation.
"Law" means any domestic or foreign, federal, state or local
law, statute, ordinance, rule or regulation.
"Lien" means any mortgage, pledge, security interest,
encumbrance, lien or charge of any kind (including any conditional sale or other
title retention agreement, any lease in the nature thereof, and the filing of or
agreement to give any financing statement under the Uniform Commercial Code or
comparable law or any jurisdiction in connection with such mortgage, pledge,
security interest, encumbrance, lien or charge).
"Material Adverse Change (or Effect)" means a change (or
effect), in the financial condition or results of operations which change
individually or in the aggregate, is materially adverse to such financial
condition or results of operations.
"Person" means an individual, partnership, corporation,
business trust, joint stock company, trust, unincorporated association, joint
venture, Governmental Authority or other entity, of whatever nature.
"Piggyback Registration" has the meaning specified in Section
7.1(a) of this Agreement.
"Purchase Price" has the meaning specified in Section 1.1 of
this Agreement.
"Register", "registered" and "registration" refer to a
registration of the offering and sale of Common Stock effected by preparing and
filing a registration statement in compliance with the Securities Act and the
declaration or ordering of the effectiveness of such registration statement.
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"Registrable Securities" means any of the Shares, any shares
of Common Stock sold by the Company pursuant to that certain Stock Purchase
Agreement, dated even date herewith, between the Issuer and H. Wayne Huizenga
and shares of Common Stock issued pursuant to the First Option Agreement and the
Second Option Agreement, each dated even date herewith, between the Issuer and
H. Wayne Huizenga (collectively, the "Other Shares") and any other shares of
Common Stock or other securities issued in respect of the Shares or Other Shares
by way of stock dividend or stock split or in connection with any
recapitalization, merger, consolidation or reorganization; provided that, as to
any particular securities, such securities will cease to be Registrable
Securities when (i) they have been sold pursuant to registration or pursuant to
Rule 144 promulgated by the Securities and Exchange Commission or any similar
rule then in force ("Rule 144") or (ii) there has occurred a transfer or
assignment in respect of such Shares in violation of either of Section 5.2(b)
hereof.
"Requirement of Law" means as to any Person, the articles of
incorporation, by-laws or other organizational or governing documents of such
person, and any Law, or determination of any arbitrator or a court or other
Governmental Authority, in each case applicable to or binding upon such Person
or any of its properties or to which such Person or any of its property is
subject.
"Rust Agreement" means that Agreement and Plan of
Reorganization dated as of December 5, 1994 among the Issuer, Rust Remedial
Services Inc., Enclean Environmental Services Group, Inc., Rust Environmental,
Inc. and Rust International Inc., as the same may be supplemented, amended or
modified from time to time.
"SEC" means the Securities and Exchange Commission.
"SEC Reports" has the meaning specified in Section 3.7 of this
Agreement.
"Securities Act" means the Securities Act of 1933, as amended.
"Shares" has the meaning specified in Section 1.1 of this
Agreement.
"Subsidiary" means as to any Person, a corporation of which
more than 50% of the outstanding capital stock having full voting power is at
the time directly or indirectly owned or controlled by such Person.
6.2 Other Definitional Provisions.
(a) All terms defined in this Agreement shall have the defined
meanings when used in any certificate, report or other documents made or
delivered pursuant hereto or thereto, unless the context otherwise requires.
(b) Terms defined in the singular shall have a comparable
meaning when used in the plural, and vice versa.
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(c) All matters of an accounting nature in connection with
this Agreement and the transactions contemplated hereby shall be determined in
accordance with GAAP applied on a basis consistent with prior periods, where
applicable.
(d) As used herein, the neuter gender shall also denote the
masculine and feminine, and the masculine gender shall also denote the neuter
and feminine, where the context so permits.
(e) The words "hereof", "herein" and "hereunder", and words of
similar import, when used in this Agreement shall refer to this Agreement as a
whole and not to any particular provision of this Agreement.
ARTICLE VII.
REGISTRATION RIGHTS
Investor shall have the following registration rights with
respect to the Shares.
7.1 Transfer of Registration Rights. Investor may assign the
registration rights with respect to the Shares to any Affiliate as well as any
party or parties to which it may from time to time transfer the Shares; except
that Investor may transfer the demand registration rights discussed in Section
7.3 hereof only to subsequent holders of at least two hundred fifty thousand
(250,000) Shares after giving effect to the transfer of any Shares in connection
therewith. Upon assignment of any registration rights pursuant to this Section
7.1, Investor shall deliver to Issuer a notice of such assignment which includes
the identity and address of any assignee (collectively, Investor and each such
subsequent holder is referred to as a "Holder").
7.2 Piggyback Registration.
(a) From and after the Holding Period, if at any time, and
from time to time, the Issuer proposes to effect a registration for its account
or for the account of a security holder or holders (other than a registration on
Form S-8, or any similar or successor form thereto, relating to an employee or
director stock option, stock purchase or other benefit plan, or a registration
relating to shares issuable in a merger, consolidation, exchange offer, purchase
of assets or any similar transaction) ("Piggyback Registration"), the Issuer
shall:
(i) promptly give to each Holder of Registrable
Securities written notice thereof (which written notice shall
include a list of the jurisdictions in which the Issuer
intends to attempt to qualify such securities under or
otherwise comply with the applicable blue sky or other state
securities laws); and
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(ii) include in such registration (and any related
qualification under or other compliance with blue sky or other
state securities laws), and in any underwriting involved
therein on the same terms and conditions as the securities
being issued thereunder, all the Registrable Securities
specified in a written request, made within 15 days after
receipt of such written notice from the Issuer, by any holder
of Registrable Securities; provided that if such registration
is a Cutback Registration, then (i) if such registration is a
primary registration, whether or not it includes a secondary
registration, on behalf of the Issuer, the Issuer shall
register in such registration (A) first, the shares of Common
Stock the Issuer proposes to sell in such registration, and
(B) second, shares of Common Stock held by each holder of
Registrable Securities and the Electing Holders on a pro rata
basis, based upon the number of shares of Common Stock the
holders of Registrable Securities and any Electing Holders
originally sought to include in such registration; and (ii) if
such registration is a Piggyback Registration which is solely
a secondary registration on behalf of holders of Common Stock,
the Issuer shall register in such registration shares of
Common Stock held by each holder of Registrable Securities and
the Electing Holders on a pro rata basis, based upon the
number of shares of Common Stock the holders of Registrable
Securities and any Electing Holders originally sought to
include in such registration and provided, further, that if
such registration is a Cutback Registration, the Issuer shall
use its best efforts to include all shares of Registrable
Securities specified in the Holder's written request, but such
best efforts shall not include an obligation on the part of
the Issuer to reduce the number of shares of the Issuer or the
other Electing Holders included in such Cutback Registration
beyond that expressly provided for in this Section.
(b) If the registration of which the Issuer gives notice is
pursuant to an effective registration statement under the Securities Act
involving an underwriting, the Issuer shall so advise each Holder as part of the
written notice given pursuant to subclause (i) above. In such event, the right
of each such Holder to registration pursuant to this Section shall be
conditioned upon such Holder's participation in such underwriting, the inclusion
of the Registrable Securities in the underwriting and such Holder entering into
an underwriting agreement, containing customary terms and conditions, in a form
reasonably acceptable to the Holder and the Issuer, with the underwriter or
underwriters selected for such underwriting by the Issuer; provided that if such
underwriting agreement shall not be acceptable to Holder and after reasonable
efforts by Issuer cannot be made acceptable to Holder, the Issuer may proceed
with such registration without registering the stock of Holder in such
registration.
7.3 Holder Requested Registration. (a) Subject to the
limitations contained in Section 7.1 and paragraph (c) of this Section 7.3,
Holder shall have the right to require the Issuer to effect any registration
with respect to the Registrable Securities held by Holder. Upon receipt of a
request for registration from Holder, the Issuer shall as soon as practicable,
use its best efforts to effect such registration, including without limitation,
the execution of an undertaking to file post-effective amendments, appropriate
qualification under
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applicable blue sky or other state securities laws in accordance with Section
7.4(a)(v) hereof and appropriate compliance with applicable regulation issued
under the Securities Act as may be so requested and as would permit or
facilitate the sale and distribution of all or such portion of such Registrable
Securities as are specified in such request; provided that the Issuer shall not
be obligated to take any action to effect any such registration, qualification
or compliance pursuant to this Section 7.3 within 120 days immediately following
the effective date of any registration statement pertaining to an underwritten
public offering of securities of the Issuer for its own account, unless the
Holder shall have elected to include Registrable Securities in such registration
statement pursuant to Section 7.2 hereof and all of such Registrable Securities
which Holder elected to include in such registration statement were not so
included as a result of the provisions of Section 7.2(a)(ii) hereof. Holder
shall have the right to designate the managing underwriter for any registration
under this Section 7.3, which underwriter shall be reasonably acceptable to
Issuer.
(b) The Issuer shall file a registration statement covering
the Registrable Securities so requested to be registered as soon as practicable
after receipt of the request of Holder, but in no event sooner than thirty days
thereafter.
(c) Holders of Registrable Securities shall be entitled to an
aggregate 3 demand registrations and each such demand registration shall include
at least 250,000 Registrable Securities.
(d) The Issuer shall not be required to effect a registration
at a time when audited financial statements are not available or when the Issuer
is in possession of material information which, in the exercise of its
reasonable judgment, the Issuer deems advisable not to disclose in a
registration statement, however, the Issuer may only postpone a registration for
such reasons, in each case, for up to 60 days and not more than once during any
three month period.
(e) If Holder intends to distribute the Registrable Securities
covered by its request by means of an underwriting, it shall so advise the
Issuer as part of its request made pursuant to this Section. Holder shall enter
into an underwriting agreement, including best efforts or continuous offering
underwriting, in a form which is reasonably satisfactory to Holder with the
underwriter or underwriters selected for such underwriting by Holder and which
are reasonably satisfactory to the Issuer. The Issuer shall sign an agreement
with such underwriters confirming for the benefit of the underwriters its
indemnity obligations under this Agreement. The Issuer may include securities
for its own account in such registration if the underwriter so agrees and if the
number of Registrable Securities which would otherwise have been included in
such registration and underwriting would not thereby be limited.
(f) In the event more than one Person is a Holder of
Registrable Securities, the rights of the Holder under this Section 7.3 may be
exercised only upon election of Investor or such Holders of more than 51% of the
Registrable Securities collectively.
7.4 Registration Procedures. (a) In case of each registration,
qualification or compliance effected by the Issuer subject to this Article VII,
the Issuer shall keep Holder
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<PAGE> 17
advised in writing as to the initiation of each such registration, qualification
and compliance and as to the completion thereof. In addition, at its expense,
the Issuer shall:
(i) before filing a registration statement or
prospectus or any amendment or supplements thereto subject to
this Article VII, the Issuer shall furnish to counsel selected
by Holder copies of all such documents proposed to be filed
and the portions of such documents provided in writing by
Holder for use therein and for which Holder shall indemnify
the Issuer shall be subject to such Holders approval;
(ii) prepare and file with the SEC such
amendments and supplements to such registration statement as
may be necessary to keep such registration, qualification or
compliance effective for a period of up to 120 days or until
Holder has completed the distribution described in the
registration statement relating thereto, whichever first
occurs and comply with provisions of the Securities Act with
respect to the disposition of all securities covered thereby
during such period;
(iii) update, correct, amend and supplement such
registration, qualification or compliance as necessary;
(iv) if such offering is to be underwritten, in
whole or in part, enter into a written underwriting agreement
containing customary terms and conditions and in form and
substance reasonably satisfactory to the managing underwriter
and the registering Holder;
(v) furnish such number of prospectuses,
including preliminary prospectuses, and other documents
incident thereto as Holder may reasonably request from time to
time, which shall be a Selling Expense;
(vi) register or qualify such Registrable
Securities under such other securities or blue sky laws of
such jurisdictions of the United States (up to five of which
shall be at the expense of the Issuer, and any additional of
which shall be at the expense of Holder) as Holder may deem
reasonable to enable it to consummate the disposition in such
jurisdiction of the Registrable Securities (provided that
Issuer will not be required to (i) qualify generally to do
business in any jurisdiction where it would not otherwise be
required to qualify but for this section, or (ii) consent to
general service of process in any such jurisdiction);
(vii) notify Holder at any time when a prospectus
relating to the Registrable Securities is required to be
delivered under the Securities Act, of the happening of any
event as a result of which the prospectus included in such
registration statement contains an untrue statement of a
material fact or omits any fact necessary to make the
statement therein not misleading, and at the request of
Holder, Issuer will prepare a supplement or amendment to such
14
<PAGE> 18
prospectus so that, as thereafter delivered to the purchasers
of such shares, such prospectus will not contain any untrue
statements of a material fact or omit to state any fact
necessary to make the statements therein not misleading;
(viii) cause all such Registrable Securities to be
listed on each securities exchange on which similar securities
issued by Issuer are then listed;
(ix) provide a transfer agent and registrar for
all such Registrable Securities not later than the effective
date of such registration statement;
(x) upon the sale of any Registrable Securities
pursuant to such registration statement, remove all
restrictive legends from all certificates or other instruments
evidencing the Registrable Securities;
(xi) furnish, at the request of Holder, on the
date that such Registrable Securities are delivered to the
underwriter for sale in connection with a registration
pursuant to this section, if such Registrable Securities are
being sold through an underwriter, or if such Registrable
Securities are not being sold through an underwriter, on the
date that the registration statement with respect to such
Registrable Securities becomes effective, (i) an opinion dated
such date of the counsel representing Issuer for purpose of
such registration, in form and substance as is customarily
given to underwriters in an underwritten public offering,
addressed to such underwriter, if any, and to Holder; and (ii)
a letter dated as of such date from the independent certified
public accountant of Issuer, in form and substance as is
customarily given by independent certified public accountants
to underwriters in connection with a public offering,
addressed to the underwriter, if any, and to Holder; and
(xii) make available for inspection by Holder,
any underwriter participating in any disposition pursuant to
such registration statement, and any attorney, accountant or
any other agent retained by Holder or such underwriter, all
financial and other records, pertinent corporate documents and
properties of Issuer, and cause Issuer's officers, directors
and employees to supply all information reasonably requested
by any such Holder, underwriter, attorney, accountant or agent
in connection with such registration statement.
(b) Except as required by law, all expenses incurred by the
Issuer in complying with this Article VII, including but not limited to, all
registration, qualification and filing fees, printing expenses, fees and
disbursements of counsel for the Issuer, blue sky fees and expenses in
accordance with Section 7.4(A)(v) hereof, including fees and disbursements of
counsel related to all blue sky matters, but excluding the compensation of
regular employees of the Issuer which shall be paid in any event by the Issuer
("Registration Expenses") incurred in connection with any registration,
qualification or compliance pursuant to such Sections shall be borne by the
Issuer. All underwriting discounts and selling
15
<PAGE> 19
commissions applicable to a sale ("Selling Expenses") incurred in connection
with any registration of Registrable Securities and the legal fees of Holder
shall be born by Holder.
7.5 Further Information. If Registrable Securities owned by a
Holder are included in any registration, such Holder shall furnish the Issuer
such information regarding itself and the distribution proposed by such Holder
as the Issuer may reasonably request and as shall be required in connection with
any registration, qualification or compliance referred to in this Agreement.
7.6 Registration During Holding Period. Issuer agrees not to
register, prior to the expiration of the Holding Period, any shares of Common
Stock under the Securities Act to which Investor's registration rights
contemplated by Section 7.2 hereof would apply unless provision is made to allow
Holder to exercise the registration rights provided for under Section 7.2
notwithstanding any requirements under the Hart-Scott-Rodino Antitrust
Improvements Act of 1976, as amended.
ARTICLE VIII.
INDEMNIFICATION
8.1 Indemnification Relating to Registration Rights. (a) With
respect to any registration, qualification or compliance effected or to be
effected pursuant to Article VII of this Agreement, the Issuer shall indemnify
each holder of Registrable Securities whose securities are included or are to be
included therein, each of such holder's directors and officers, each underwriter
(as defined in the Securities Act) of the securities sold by such holder and
each Person who controls (within the meaning of the Securities Act) any such
holder or underwriter (a "Controlling Person") from and against all losses,
damages and liabilities (or actions in respect thereof) arising out of or based
on any claim, cause of action, proceeding or litigation asserted or commenced or
threatened against any such holder or any of its officers and directors or any
such underwriter or Controlling Person concerning:
(i) any untrue statement (or alleged untrue statement) of a
material fact contained in any prospectus, offering circular or other
document (including any related registration statement, notification or
the like) incident to any such registration, qualification or
compliance;
(ii) any omission (or alleged omission) to state therein a
material fact required to be stated therein or necessary to make the
statement therein, in the light of the circumstances under which it was
made, not misleading; or
(iii) any violation by the Issuer of the Securities Act or any
rule or regulation promulgated thereunder applicable to the Issuer, or
of any blue sky or other state securities laws or any rule or
regulation promulgated thereunder applicable to the Issuer,
16
<PAGE> 20
in each case, relating to action or inaction required of the Issuer in
connection with any such registration, qualification or compliance, and subject
to Section 8.2 below will reimburse each such Person entitled to indemnity under
this Section 8.1 for all legal and other expenses incurred in connection with
investigating or defending any such claim, loss damage, liability or action;
provided, however, that, the foregoing indemnity and reimbursement obligation
shall not be applicable to the extent that any such claim, loss, damage or
liability arises out of or is based on any untrue statement (or alleged untrue
statement) or omission (or alleged omission) made in reliance upon and in
conformity with written information furnished to the Issuer by or on behalf of
such a holder or by or on behalf of such an underwriter specifically for use in
such prospectus, offering circular or other document; provided, further,
however, that, with respect to any untrue statement (or alleged untrue
statement) or omission (or alleged omission) made in any preliminary prospectus,
the indemnity agreement contained in this Section shall not inure to the benefit
of any underwriter, or, if there shall be no underwriter, such other person
participating in such sale who is obligated under the Securities Act to deliver
a prospectus ("Delivering Person"), to the extent that any such losses claims,
damages or liabilities of such underwriter or Delivering Person, as the case may
be, result from the fact that there was not delivered to any Person who
purchased Registrable Securities a copy of the final prospectus relating to such
registration, as then amended or supplemented (exclusive of material
incorporated by reference) at or prior to the written confirmation of the sale
of such Registrable Securities to such Person), if (A) such delivery was
required by the Securities Act, (B) the untrue statement (or alleged untrue
statement) or omission (or alleged omission) made in such preliminary prospectus
was corrected in such final prospectus, and (C) the Issuer had previously and
timely furnished copies thereof to such underwriter or Delivering Person, as the
case may be.
(b) With respect to any registration, qualification or
compliance effected or to be effected pursuant to this Agreement, each holder of
Registrable Securities whose securities are included or are to be included
therein, shall indemnify the Issuer, its directors and officers, and, if and to
the extent required by the underwriters of an underwritten offering in which
such holder will be selling Registrable Securities, each underwriter (as defined
in the Securities Act) of the securities sold by such holder and each Person who
controls (within the meaning of the Securities Act) the Issuer or any such
underwriter (a "Controller") from and against all losses, damages and
liabilities (or actions in respect thereof) arising out of or based on any
claim, cause of action, proceeding or litigation asserted or commenced against
the Issuer or any of its directors and officers or any such underwriter or
Controller concerning:
(i) any untrue statement (or alleged untrue statement) of a
material fact contained in any prospectus, offering circular or other
document (including any related registration statement, notification or
the like) incident to any such registration, qualification or
compliance;
(ii) any omission (or alleged omission) to state therein a
material fact required to be stated therein or necessary to make the
statement therein, in the light of the circumstances under which it was
made, not misleading; or
17
<PAGE> 21
(iii) any violation by such holder of the Securities Act or
any rule or regulation promulgated thereunder applicable to the Issuer
or such holder or of any blue sky or other state securities laws or any
rule or regulation promulgated thereunder applicable to the Issuer or
such holder,
in each case, relating to action or inaction required of such holder in
connection with any such registration, qualification or compliance, and subject
to Section 8.2 below will reimburse each such Person entitled to indemnity under
this Section for all legal and other expenses reasonably incurred in connection
with investigating or defending any such claim, loss, damage, liability or
action; provided, however, that, the foregoing indemnity and reimbursement
obligation shall only be applicable to the extent that any such claim, loss,
damage or liability arises out of or is based on any untrue statement (or
alleged untrue statement) or omission (or alleged omission) made in reliance
upon and in conformity with written information furnished to the Issuer by or on
behalf of the holder specifically for use in such prospectus, offering circular
or other document; provided, however, that the obligations of the holder
hereunder shall be limited to an amount equal to the proceeds to the holder of
Registrable Shares sold as contemplated hereunder.
8.2 Indemnification Procedures. Each Person entitled to
indemnification under this Section (an "Indemnified Party") shall give notice as
promptly as reasonably practicable to each party required to provide
indemnification under this Section (an "Indemnifying Party") of any action
commenced against it in respect of which indemnity may be sought hereunder, but
failure so to notify an Indemnifying Party shall not relieve such Indemnifying
Party from any liability that it may have otherwise than on account of this
indemnity agreement so long as such failure shall not have materially prejudiced
the position of the Indemnifying Party. Upon such notification, the Indemnifying
Party shall assume the defense of such action and after such assumption the
Indemnifying Party shall not be entitled to reimbursement of any expenses
incurred by it in connection with such action except as described below. In any
such action, any Indemnified Party shall have the right to retain its own
counsel, but the fees and expenses of such counsel shall be at the expense of
such Indemnified Party unless (i) the Indemnifying Party and the Indemnified
Party shall have mutually agreed to the contrary or (ii) the named parties in
any such action (including any impleaded parties) include both the Indemnifying
Party and the Indemnified Party and representation of both parties by the same
counsel would be inappropriate due to actual or potential differing interests
between them. It is understood that the Indemnifying Party shall not, in
connection with any action in the same jurisdiction be liable for the fees and
expenses of more than one separate firm for all Indemnified Parties in addition
to any firm(s) which the Indemnifying Party may retain to represent it. The
Indemnifying Party shall not be liable for any settlement of any proceeding
effected without its written consent (which shall not be unreasonably withheld
or delayed by such Indemnifying Party), but if settled with such consent or if
there be final judgment for the plaintiff, the Indemnifying Party shall
indemnify the Indemnified Party from and against any loss, damage or liability
by reason of such settlement or judgment.
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ARTICLE IX.
MISCELLANEOUS
9.1 Notices. All notices, requests, demands, claims, and other
communications hereunder shall be in writing and shall be delivered by certified
or registered mail (first class postage pre-paid), guaranteed overnight
delivery, or facsimile transmission if such transmission is confirmed by
delivery by certified or registered mail (first class postage pre-paid) or
guaranteed overnight delivery:
(a) if to Issuer to:
OHM Corporation
16406 U.S. Route 224 East
Findlay, Ohio 45840
Attention: General Counsel
Telecopy: (419) 424-4985
with a copy to:
Jones, Day, Reavis & Pogue
41 South High Street
1900 Huntington Center
Columbus, OH 43215
Attention: Robert J. Gilker, Esq.
Telecopy: (614) 469-4198
(b) if to Investor to:
Huizenga Family Foundation, Inc.
200 South Andrews Avenue
Fort Lauderdale, Florida 33301
Attention: Richard C. Rochon
Telecopy: (305) 523-0801
with a copy to:
Akerman, Senterfitt & Eidson, P.A.
24th Floor, One Brickell Square
801 Brickell Avenue
Miami, FL 33131
Attention: Stephen K. Roddenberry, Esq.
Telecopy: (305) 374-5095
(c) or, in each case, at such other address or to such
other person as may be specified in writing to the other party.
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<PAGE> 23
9.2 Non-Waiver of Remedies and Actions. No course of dealing
between the Issuer and Investor with respect to any Common Stock, or any delay
on the part of either such party in exercising any rights available to such
party shall operate as a waiver of any right of such party, except to the extent
expressly waived in writing by such party.
9.3 Headings. The headings in this Agreement are for purposes
of reference only and shall not be considered in construing this Agreement.
9.4 Counterparts. This Agreement may be executed in any number
of counterparts, each of which when so executed and delivered shall constitute
an original and all together shall constitute one Agreement.
9.5 Successors and Assigns. Except as otherwise specifically
provided herein, this Agreement shall bind and inure to the benefit of the
Issuer's and Investor's respective successors and permitted assigns; provided
that neither the Issuer nor Investor shall have any right to assign any of its
rights hereunder except as otherwise specifically provided for herein, or any
interest herein without obtaining the written consent of the other to such
assignment, and any purported assignment made without obtaining such written
consent shall be null and void. Notwithstanding the foregoing, any Person who is
a holder of shares of Common Stock shall have all rights and benefits afforded
to such holder, in its capacity as such, pursuant and subject to the terms of
the Article of Incorporation.
9.6 Survival. Notwithstanding any investigation made by
Investor, all covenants, agreements, representations and warranties made herein
and in certificates delivered pursuant hereto shall survive the delivery to
Investor of the Common Stock to be purchased pursuant to Section 1.1.
9.7 Enforceability. If any term or provision of this
Agreement, or the application thereof to any Person or circumstance, shall, to
any extent, be invalid or unenforceable, the remaining terms and provisions of
this Agreement or application to other Persons and circumstances shall not be
invalidated thereby, and each term and provision hereof shall be construed with
all other remaining terms and provisions hereof to effect the intent of the
parties hereto to the fullest extent permitted by law.
9.8 Law Governing. This Agreement shall be construed and
enforced in accordance with and shall be governed by the laws of the State of
Ohio applicable to contracts executed by residents of that state, and fully to
be performed, in that state.
9.9 Severability. In the event that any provision of this
Agreement is deemed invalid, illegal or unenforceable, the validity, legality
and enforceability of the remaining provisions shall not in any way be affected
or impaired thereby.
9.10 Remedies. (a) Each of Investor and Issuer acknowledges
that the other party would not have an adequate remedy at law for money damages
in the event that any of the covenants or agreements of such party in this
Agreement was not performed in accordance with its terms, and it is therefore
agreed that each of Investor and Issuer in
20
<PAGE> 24
addition to and without limiting any other remedy or right such party may have,
shall have the right to an injunction or other equitable relief in any court of
competent jurisdiction, enjoining any such breach and enforcing specifically the
terms and provisions hereof, and each of Investor and Issuer hereby waive any
and all defenses such party may have on the ground of lack of jurisdiction or
competence of the court to grant such an injunction or other equitable relief.
(b) All rights, powers and remedies provided under this
Agreement or otherwise available in respect hereof at law or in equity shall be
cumulative and not alternative, and the exercise or beginning of the exercise of
any thereof by any party shall not preclude the simultaneous or later exercise
of any other such right, power or remedy by such party.
9.11 Expenses. Except as otherwise expressly provided herein,
each party hereto shall bear its own expenses incurred in connection with the
negotiation, execution and performance of this Agreement.
9.12 Entire Agreement. This Agreement constitute the entire
understanding of the parties with respect to the subject matter hereof and
superseded all prior discussions, agreements and representations, whether oral
or written, concerning the subject matter hereof.
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<PAGE> 25
IN WITNESS WHEREOF, the parties hereto have caused this Stock
Purchase Agreement to be duly executed and delivered as of the day and year
first above written.
OHM CORPORATION
By: /s/ RANDALL M. WALTERS
--------------------------------------------------
Name: Randall M. Walters
Title: Vice President, General Counsel and Secretary
HUIZENGA FAMILY FOUNDATION, INC.
By: /s/ H. WAYNE HUIZENGA
--------------------------------------------------
Name: H. Wayne Huizenga
Title: President
22
<PAGE> 1
================================================================================
- --------------------------------------------------------------------------------
STOCK PURCHASE AGREEMENT
BY AND BETWEEN
H. WAYNE HUIZENGA
AND
OHM CORPORATION
DATED AS OF MARCH 28, 1995
- --------------------------------------------------------------------------------
================================================================================
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Section Page
- ------- ----
<S> <C>
RECITALS .................................................................................................. 1
ARTICLE I. ISSUANCE AND PURCHASE OF COMMON STOCK AND OPTIONS ............................................. 1
1.1 Sale of Common Stock; Issuance of Options ................................................... 1
1.2 Legend ...................................................................................... 2
ARTICLE II. CLOSING ...................................................................................... 2
ARTICLE III. REPRESENTATIONS AND WARRANTIES OF THE ISSUER ................................................ 3
3.1 Corporate Status ............................................................................ 3
3.2 Power and Authority ......................................................................... 3
3.3 Non-Contravention ........................................................................... 3
3.4 Consents/Approvals .......................................................................... 4
3.5 Enforceability .............................................................................. 4
3.6 Capitalization .............................................................................. 4
3.7 SEC Reports ................................................................................. 5
3.8 Governing Documents ......................................................................... 5
3.9 Financial Statements ........................................................................ 5
3.10 Changes Since December 31, 1994. ............................................................ 5
3.11 Litigation. ................................................................................. 5
ARTICLE IV. REPRESENTATIONS AND WARRANTIES OF INVESTOR ................................................... 6
4.1 Power and Authority ......................................................................... 6
4.2 Non-Contravention ........................................................................... 6
4.3 Consents/Approvals .......................................................................... 6
4.4 Enforceability .............................................................................. 6
4.5 Affiliate of WMX Technologies, Inc. ......................................................... 7
4.6 Investment Intent ........................................................................... 7
4.7 Investor Knowledge. ......................................................................... 7
4.8 No Commissions .............................................................................. 7
ARTICLE V. COVENANTS ..................................................................................... 8
5.1 Covenants of the Issuer and the Investor .................................................... 8
5.2 Additional Covenant of Investors ............................................................ 8
</TABLE>
i
<PAGE> 3
TABLE OF CONTENTS
(CONTINUED)
<TABLE>
<CAPTION>
Section Page
- ------- ----
<S> <C>
ARTICLE VI. DEFINITIONS .................................................................................. 9
6.1 Defined Terms ............................................................................... 9
6.2 Other Definitional Provisions ............................................................... 11
ARTICLE VII. REGISTRATION RIGHTS ......................................................................... 12
7.1 Transfer of Registration Rights ............................................................. 12
7.2 Piggyback Registration ...................................................................... 12
7.3 Holder Requested Registration ............................................................... 13
7.4 Registration Procedures ..................................................................... 15
7.5 Further Information ......................................................................... 17
7.6 Registration During Holding Period .......................................................... 17
ARTICLE VIII. INDEMNIFICATION ............................................................................ 17
8.1 Indemnification Relating to Registration Rights ............................................. 17
8.2 Indemnification Procedures .................................................................. 19
ARTICLE IX. MISCELLANEOUS ................................................................................ 20
9.1 Notices ..................................................................................... 20
9.2 Non-Waiver of Remedies and Actions .......................................................... 21
9.3 Headings .................................................................................... 21
9.4 Counterparts ................................................................................ 21
9.5 Successors and Assigns ...................................................................... 21
9.6 Survival .................................................................................... 21
9.7 Enforceability .............................................................................. 21
9.8 Law Governing ............................................................................... 22
9.9 Severability ................................................................................ 22
9.10 Remedies .................................................................................... 22
9.11 Expenses .................................................................................... 22
9.12 Entire Agreement ............................................................................ 22
</TABLE>
ii
<PAGE> 4
STOCK PURCHASE AGREEMENT
This STOCK PURCHASE AGREEMENT (this "Agreement") is entered
into as of March 28, 1995, by and between H. WAYNE HUIZENGA (together with his
permitted successors and assigns, the "Investor"), and OHM CORPORATION, an Ohio
corporation (together with its permitted successors and assigns, the "Issuer").
Capitalized terms used herein but not otherwise defined herein are defined in
Section 6.1.
RECITALS
WHEREAS, subject to the terms and conditions set forth herein,
Investor desires to purchase, and Issuer desires to issue and sell to Investor,
certain shares of Issuer's common stock, par value $.10 per share (the "Common
Stock").
WHEREAS, concurrently herewith, the Issuer and Investor are
entering into two option agreements providing the terms and conditions on which
Investor may acquire up to an additional one million (1,000,000) shares of
Common Stock from the Issuer (the "Option Agreements").
NOW, THEREFORE, in consideration of the promises and mutual
covenants contained herein, the parties hereto agree as follows:
ARTICLE I.
ISSUANCE AND PURCHASE OF COMMON STOCK AND OPTIONS
1.1 Sale of Common Stock; Issuance of Options. Subject to the
terms and conditions set forth herein, and simultaneously with the execution and
delivery of this Agreement, Issuer will sell to Investor and Investor will
purchase from Issuer for an aggregate purchase price of five million five
hundred thousand dollars ($5,500,000) (the "Purchase Price"), (i) five hundred
thousand (500,000) shares of Common Stock (the "Shares"), (ii) an option to
purchase six hundred twenty thousand (620,000) additional shares of Common Stock
at a price per share of ten dollars ($10.00) exercisable at any time prior to
6:00 p.m. on March 27, 2000 ("A Options") pursuant to the terms of the First
Option Agreement in the form attached hereto as Exhibit A (the "First Option
Agreement") and (iii) an option to purchase three hundred eighty thousand
(380,000) additional shares of Common Stock at a price per share of twelve
dollars ($12.00) exercisable at any time prior to 6:00 p.m. on March 27, 2000
("B Options") pursuant to the terms of the Second Option Agreement in the form
attached hereto as Exhibit B (the "Second Option Agreement") (the A Options and
the B Options are collectively referred to herein as the "Options" and the First
<PAGE> 5
Option Agreement and the Second Option Agreement are collectively referred to
herein as the "Option Agreements"). Pursuant to such purchase and sale, Investor
will pay, by wire transfer of immediately available funds to an account
designated in writing by the Issuer, the Purchase Price for all of the Shares
and Options and the Issuer will deliver to Investor certificates for the Shares
duly registered in the name of Investor or its designee and duly executed Option
Agreements.
1.2 Legend. Any certificate or certificates representing the
Shares and any Common Stock issued upon conversion or exercise of any Option
(the "Option Shares") shall bear the following legend:
THE SECURITIES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT") OR UNDER
ANY APPLICABLE STATE LAW AND MAY NOT BE TRANSFERRED, SOLD OR
OTHERWISE DISPOSED OF IN THE ABSENCE OF AN EFFECTIVE
REGISTRATION UNDER THE ACT OR AN OPINION OF COUNSEL REASONABLY
SATISFACTORY TO THE ISSUER THAT SUCH REGISTRATION IS NOT
REQUIRED UNDER THE ACT AND THE RULES AND REGULATIONS
PROMULGATED THEREUNDER OR UNDER APPLICABLE STATE SECURITIES
LAWS, AND FURTHER PROVIDED THAT SUCH TRANSFER IS EFFECTED IN
ACCORDANCE WITH THE PROVISIONS OF SECTION 5.2(b) OF THAT
CERTAIN STOCK PURCHASE AGREEMENT BY AND BETWEEN THE ISSUER AND
H. WAYNE HUIZENGA, DATED AS OF MARCH 28, 1995.
ARTICLE II.
CLOSING
The closing of the transactions contemplated herein (the
"Closing") shall occur concurrently with the execution and delivery of this
Agreement. At the Closing the following shall occur:
(i) Investor shall pay, by wire transfer of
immediately available funds to an account
designated in writing by Issuer, the
Purchase Price set forth in Section 1.1;
(ii) Issuer shall deliver to Investor the Shares,
each duly registered in the name of
Investor;
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<PAGE> 6
(iii) Issuer and Investor shall each execute, and
Issuer shall deliver to Investor, the Option
Agreements attached hereto as Exhibits A and
B; and
(iv) Investor shall deliver to Issuer a
Certificate, in a form satisfactory to
Issuer, of H. Wayne Huizenga certifying that
Investor is not an Affiliate of WMX
Technologies, Inc.
ARTICLE III.
REPRESENTATIONS AND WARRANTIES OF THE ISSUER
Issuer represents and warrants to Investor (which
representations and warranties shall not be required or deemed to be updated or
made applicable to any time after the Closing Date) as follows:
3.1 Corporate Status. (a) The Issuer is a corporation duly
organized validly existing and in good standing under the laws of the State of
Ohio.
(b) The Issuer has all requisite corporate power and authority
to own or lease and operate its properties and to carry on its business as now
conducted.
(c) The Issuer is qualified to do business in all
jurisdictions where its ownership, lease or operation of property or the conduct
of its business requires such qualification, except where the failure to so
qualify would not have a Material Adverse Effect on the Issuer and its
Subsidiaries taken as a whole.
3.2 Power and Authority. The Issuer has the corporate power
and authority to execute and deliver, and to perform its obligations under this
Agreement and the Option Agreements and the transactions contemplated hereby and
thereby, and has taken all necessary corporate action to authorize the
execution, delivery and performance of this Agreement and the Option Agreements
and the transactions contemplated hereby and thereby.
3.3 Non-Contravention. None of the execution and delivery by
the Issuer of this Agreement or the Option Agreements, the consummation of the
transactions contemplated hereby or thereby, or the compliance by Issuer with
the terms and provisions hereof or thereof (including, without limitation, the
issuance to Investor by the Issuer of Shares as contemplated by and in
accordance with this Agreement and the issuance of the Option Shares as
contemplated by and in accordance with the Option Agreements), violates or will
violate the Amended and Restated Articles of Incorporation or Regulations of the
Issuer or any Requirement of Law applicable to the Issuer, conflicts with or
will conflict with or results or will result in any breach of any term,
condition or provision of, constitutes or will constitute (with due notice or
lapse of time or both) a default under, or results in the
3
<PAGE> 7
creation or imposition of any Lien upon any of the capital stock or properties
or assets of the Issuer pursuant to the terms of, any mortgage, deed of trust or
other material agreement or instrument to which the Issuer is a party or by
which it or any of its properties is bound, or results in the creation or
imposition of any Lien upon any of the capital stock or properties or assets of
the Issuer pursuant to the terms of any other agreement or instrument to which
the Issuer is a party or by which it or any of its properties is bound.
3.4 Consents/Approvals. (a) No consents, filings,
authorizations or other actions of any Governmental Authority are required for
the Issuer's execution, delivery and performance of this Agreement or the Option
Agreements.
(b) No consent, approval, waiver or other action by any Person
under any contract, agreement, indenture, lease, instrument or other document to
which the Issuer or any of its Subsidiaries is a party or by which any of them
is bound is required or necessary for the execution, delivery and performance by
the Issuer of this Agreement or the consummation of the transactions
contemplated hereby.
3.5 Enforceability. Each of this Agreement and the Option
Agreements have been duly executed and delivered by the Issuer and constitutes a
legal, valid and binding obligation of the Issuer enforceable against it in
accordance with its terms, except as the same may be limited by public policy
restrictions insofar as certain provisions herein concern rights of
indemnification and except as enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the
enforcement of creditors' rights generally and general equitable principles.
3.6 Capitalization. The authorized capital stock of Issuer
consists of 52,000,000 shares, of which 50,000,000 are shares of Common Stock
and 2,000,000 are shares of preferred stock. As of the date hereof, 15,636,465
shares of Common Stock are validly issued and outstanding, fully paid, and
non-assessable, and no shares of preferred stock are issued or outstanding.
Except for 2,850,000 shares of Common Stock issuable pursuant to the OHM
Corporation 1986 Stock Option Plan, as amended (the "1986 Stock Option Plan"),
1,000,000 shares of Common Stock issuable pursuant to the OHM Corporation
Nonqualified Stock Option Plan for Directors (the "Directors' Option Plan"),
100,000 shares of Common Stock issuable pursuant to the Deferred Fee Plan for
Directors (the "Deferred Fee Plan") and 2,395,833 shares of Common Stock
issuable pursuant to conversion of the OHM 8% Convertible Subordinated
Debentures due 2006 (the "Convertible Debentures"), in each case issuable as of
the date hereof, and 10,368,000 shares of Common Stock issuable to Rust
International Inc. pursuant to the Rust Agreement, no other shares of Common
Stock or preferred stock or any rights, agreements, or commitments of any kind
obligating Issuer to issue or sell any other shares of Common Stock or preferred
stock are or will be outstanding or have been or will be authorized. Upon
delivery of the Shares and payment of the Purchase Price such Shares shall be
validly issued, fully paid and non-assessable shares of Common Stock.
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3.7 SEC Reports. The Annual Reports on Form 10-K for the year
ended December 31, 1993 and Quarterly Reports on Form 10-Q for the quarters
ended March 31, 1994, June 30, 1994 and September 30, 1994, of the Issuer filed
with the SEC under the Exchange Act, and all other reports and Proxy Statements
required to be filed by the Issuer, including, without limitation, a preliminary
proxy statement filed February 24, 1995 which includes financial statements for
the year ended December 31, 1994, have been duly and timely filed by the Issuer
(all such reports, collectively, the "SEC Reports"). The SEC Reports, when
filed, complied in all material respects with all applicable requirements of the
Exchange Act. None of the SEC Reports, at the time of filing, contained any
untrue statement of a material fact or omitted to state a material fact required
to be stated therein or necessary in order to make the statements therein not
misleading in light of the circumstances in which they were made. Issuer has
delivered to Investor true, accurate and complete copies of the SEC Reports, as
amended, and as in effect as of the date hereof.
3.8 Governing Documents. Issuer has delivered to Investor
true, accurate and complete copies of Issuer's Amended and Restated Articles of
Incorporation and Regulations in effect as of the date hereof.
3.9 Financial Statements. Each of the balance sheets included
in the SEC Reports (including any related notes and schedules) fairly presents
the consolidated financial position of the Issuer as of its date, and the other
financial statements included in the SEC Reports (including any related notes
and schedules) fairly present the consolidated results of operations or other
information included therein of Issuer for the periods or as of the dates
therein set forth in accordance with GAAP consistently applied during the
periods involved (except that the interim reports are subject to normal
recording adjustments which might be required as a result of year end audit and
do not contain all required footnote disclosures, and except as otherwise stated
therein).
3.10 Changes Since December 31, 1994. Since December 31, 1994
there has been no Material Adverse Change in the Issuer. There has not been any
direct or indirect redemption, purchase or other acquisition of any shares of
the Issuer's capital stock, or any declaration, setting aside or payment of any
dividend or other distribution by the Issuer in respect of its capital stock, or
any issuance of any shares of capital stock of Issuer or any granting to any
person of any option to purchase or other right to acquire shares of capital
stock of Issuer other than pursuant to the Rust Agreement or any employee or
director stock option, stock bonus plan or other employee or director benefit
plan.
3.11 Litigation. There is no suit, action, or legal,
administrative or other proceeding or governmental investigation pending, or to
the best of Issuer's knowledge, threatened, anticipated or contemplated against
Issuer or any of its properties, which, in any single case or in the aggregate,
challenge or question in any respect the validity of, or would prevent or hinder
the consummation of, the transactions contemplated by this Agreement.
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ARTICLE IV.
REPRESENTATIONS AND WARRANTIES OF INVESTOR
Investor represents and warrants to the Issuer (which
representations and warranties shall not be required or deemed to be updated or
made applicable to any time after the Closing) as follows:
4.1 Power and Authority. The Investor is an individual
residing in the State of Florida with competence and authority to execute and
deliver, and to perform his obligations under this Agreement and the Option
Agreements and the transactions contemplated hereby and thereby, and has all
necessary authority to execute, deliver and perform this Agreement and the
Option Agreements and the transactions contemplated hereby and thereby.
4.2 Non-Contravention. None of the execution and delivery by
Investor of this Agreement or the Option Agreements, the consummation of the
transactions contemplated hereby or thereby, or the compliance by Investor with
the terms and provisions hereof or thereof, violates or will violate any
Requirement of Law applicable to Investor, conflicts with or will conflict with
or results or will result in any breach of any terms, condition nor provisions
of, constitutes or will constitute (with due notice or lapse of time or both) a
default under, any mortgage, deed of trust or other agreement or instrument to
which Investor is a party or by which he or any of his properties is bound,
other than such violations, conflicts, defaults or breaches which, individually
and in the aggregate, do not and will not materially and adversely impair
Investor's ability to perform his obligations hereunder or to consummate the
transactions contemplated hereby.
4.3 Consents/Approvals. (a) No consents, filings,
authorizations or actions of any Governmental Authority are required for
Investor's execution, delivery and performance of this Agreement or the Option
Agreement, other than compliance with any applicable requirements of the
Exchange Act.
(b) No consent, approval, waiver or other actions by any
person (other than any Government Authority referred to in Section 4.3(a) above)
under any contract, agreement, indenture, lease, instrument or other document to
which Investor is a party or by which he is bound is required or necessary for
the execution, delivery and performance by Investor of this Agreement or the
Option Agreements or the consummation of the transactions contemplated hereby or
thereby.
4.4 Enforceability. Each of this Agreement and the Option
Agreements have been duly executed and delivered by Investor and constitutes a
legal, valid and binding obligation of Investor enforceable against him in
accordance with its terms, except as enforceability may be limited by applicable
bankruptcy, insolvency, reorganization moratorium or similar laws affecting the
enforcement of creditor's rights generally and general equitable principles.
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4.5 Affiliate of WMX Technologies, Inc.. Investor is not an
Affiliate of WMX Technologies, Inc.
4.6 Investment Intent. Investor is acquiring the Shares and
Options hereunder for his own account and with no present intention of
distributing or selling such Shares, any interest in such Options or Option
Shares acquired upon exercise thereof in violation of the Securities Act or any
applicable state securities law. Investor agrees that he will not sell or
otherwise dispose of any of the Shares, any interest in such Options or Option
Shares acquired upon exercise thereof unless such sale or other disposition has
been registered under the Securities Act or, in the opinion of counsel
reasonably satisfactory to the Issuer, is exempt from registration under the
Securities Act and has been registered or qualified or, in the opinion of such
counsel, is exempt from registration or qualification under applicable state
securities laws. Investor understands that the sale of the Shares being acquired
by him hereunder and the related acquisitions of securities of the Issuer upon
Investor's entry into the Option Agreements and any issuance of Option Shares
upon exercise by Investor thereof have not been registered under the Securities
Act by reason of their contemplated issuance in transactions exempt from the
registration and prospectus delivery requirements of the Securities Act pursuant
to Section 4(2) thereof, and that the reliance of the Issuer on such exemption
from registration is predicated in part on these representations and warranties
of Investor. Investor acknowledges that pursuant to Section 1.2 a restrictive
legend consistent with the foregoing has been or will be placed on the
certificates for the Shares, on the Option Agreements and on certificates for
any Option Shares issued upon exercise thereof and related stop transfer
instructions will be noted in the transfer records of the Issuer and/or its
transfer agent for the shares of Issuer's Common Stock. Issuer acknowledges
that, with respect to the requirement of counsel reasonably satisfactory to
Issuer contemplated by this Section and the Legend set forth in Section 1.2
hereof, the law firm of Akerman, Senterfitt & Eidson, P.A., Miami, Florida, is
such reasonably satisfactory counsel.
4.7 Investor Knowledge. Investor is an accredited investor as
such term is defined in Rule 501 of the General Rules and Regulations under the
Securities Act, and, either alone or with his financial advisor(s), has such
knowledge and experience in financial and business matters that he is capable of
evaluating the merits and risks of the investment to be made by him hereunder.
Investor acknowledges that no representations or warranties of any type or
description have been made to him by any Person with regard to the Issuer, any
of its Subsidiaries, any of their respective businesses, properties or prospects
or the investment contemplated herein, other than the representations and
warranties set forth in Article III hereof.
4.8 No Commissions. Investor has not incurred any obligation
for any finder's or broker's or agent's fees or commissions in connection with
the transactions contemplated hereby.
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ARTICLE V.
COVENANTS
5.1 Covenants of the Issuer and the Investor. (a) Filings.
Each of Investor and Issuer shall make on a prompt and timely basis all
governmental or regulatory notifications and filings required to be made by it
for the consummation of the transactions contemplated hereby.
(b) Public Announcements. Except as required by Law or the
policies or rules of any stock exchange (or the NASDAQ-NMS) on which the
Issuer's securities are listed as of the date hereof, the form and content of
all press releases or other public communications of any sort relating to the
subject matter of this Agreement or the Option Agreements, and the method of
their release, or publication thereof, shall be subject to the prior approval of
the parties hereto, which approval shall not be unreasonably withheld or
delayed.
(c) Further Assurances. Each party shall execute and deliver
such additional instruments and other documents and shall take such further
actions as may be necessary or appropriate to effectuate, carry out and comply
with all of the terms of this Agreement and the Option Agreements and the
transactions contemplated hereby and thereby.
(d) Cooperation. The Issuer and Investor each agree to
cooperate with the other in the preparation and filing of all forms,
notifications, reports and information, if any, required or reasonably deemed
advisable pursuant to any Requirement of Law or the rules of any exchange on
which the Common Stock is traded or the NASDAQ-NMS in connection with the
transactions contemplated by this Agreement and the Option Agreements and to use
their respective reasonable best efforts jointly to agree on a method to
overcome any objections by any Governmental Authority to any such transactions.
Except as may be specifically required hereunder, neither of the parties hereto
or their respective Affiliates shall be required to agree to take any action
that in the reasonable opinion of such party would result in or produce a
Material Adverse Effect.
5.2 Additional Covenant of Investors. (a) Investor represents,
warrants, covenants and agrees that (i) he will provide to the Issuer for
inclusion in the Issuer's Proxy Statement for the 1995 Annual Meeting of
Shareholders (the "Proxy Statement") all information concerning Investor and his
Affiliates requested by Issuer and necessary for the preparation of the Proxy
Statement and (ii) such information will not contain any material misstatement
of fact or omit to state any material fact necessary to make the statements, in
light of the circumstances under which they are made, not misleading.
(b) Investor agrees, except as otherwise required by law or
regulatory directive, not to sell or otherwise transfer or dispose of all or any
portion of his interest in the Option Agreements during the Holding Period.
Investor agrees, except as otherwise required by law or regulatory directive,
not to sell or otherwise dispose of any of the Shares
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or any of the Option Shares and directly or indirectly held by Investor during
the Holding Period. Notwithstanding anything in this Section 5.2 to the
contrary, Investor may make any such sale, transfer or disposition to an
Affiliate of Investor which agrees to be bound by the provisions contained in
this Section; provided that such Affiliate holding such Shares and/or Option
Shares is prevented (in a manner reasonably satisfactory to the Issuer) from
transferring such Shares and/or Option Shares, by dividend, distribution or
otherwise, to any entity that is not an Affiliate of Investor, until the end of
the Holding Period. Any such agreement of Affiliates of Investor shall be in
writing in a form reasonably satisfactory to the Issuer. The Issuer may impose
stop-transfer instructions with respect to the Shares and/or Option Shares
subject to the foregoing restrictions set forth above until the end of the
Holding Period.
ARTICLE VI.
DEFINITIONS
6.1 Defined Terms. As used herein the following terms shall
have the following meanings:
"Affiliate" shall have the meaning ascribed to it in Rule
12b-2 of the General Rules and Regulations under the Exchange Act, as in effect
on the date hereof.
"Articles of Incorporation" means the Issuer's Articles of
Incorporation, as the same may be supplemented, amended or restated from time to
time.
"Closing" has the meaning specified in ARTICLE II of this
Agreement.
"Common Stock" has the meaning specified in the Recitals to
this Agreement.
"Cutback Registration" means any registration in which the
managing underwriter advises the Issuer that marketing factors require a
limitation of the number of shares of Common Stock to be underwritten in such
registration.
"Electing Holder" means any holder of Common Stock, other than
holders of Registrable Securities (in their respective capacities as such), who
has the right to request inclusion of Common Stock held by such holder in a
registration;
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"GAAP" means generally accepted accounting principles in
effect in the United States of America from time to time.
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"Governmental Authority" means any nation or government, any
state or other political subdivision thereof, and any entity or official
exercising executive, legislative, judicial, regulatory or administrative
functions of or pertaining to government.
"Holding Period" means the period of time during which
Investor may not transfer any portion of his interest in the Shares the Option
Agreements or the Option Shares commencing as of the date of Closing and ending
upon the earliest to occur of (i) consummation of the transactions contemplated
by the Rust Agreement, (ii) termination of the Rust Agreement, or (iii)
September 30, 1995.
"Issuer" means OHM Corporation, an Ohio corporation.
"Law" means any domestic or foreign, federal, state or local
law, statute, ordinance, rule or regulation.
"Lien" means any mortgage, pledge, security interest,
encumbrance, lien or charge of any kind (including any conditional sale or other
title retention agreement, any lease in the nature thereof, and the filing of or
agreement to give any financing statement under the Uniform Commercial Code or
comparable law or any jurisdiction in connection with such mortgage, pledge,
security interest, encumbrance, lien or charge).
"Material Adverse Change (or Effect)" means a change (or
effect), in the financial condition or results of operations which change
individually or in the aggregate, is materially adverse to such financial
condition or results of operations.
"Option Agreements" has the meaning specified in Section 1.1
of this Agreement.
"Option Shares" has the meaning specified in Section 1.2 of
this Agreement.
"Person" means an individual, partnership, corporation,
business trust, joint stock company, trust, unincorporated association, joint
venture, Governmental Authority or other entity, of whatever nature.
"Piggyback Registration" has the meaning specified in Section
7.1(a) of this Agreement.
"Purchase Price" has the meaning specified in Section 1.1 of
this Agreement.
"Register", "registered" and "registration" refer to a
registration of the offering and sale of Common Stock effected by preparing and
filing a registration statement in compliance with the Securities Act and the
declaration or ordering of the effectiveness of such registration statement.
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"Registrable Securities" means any of the Shares, any of the
Option Shares, any shares of Common Stock sold by the Issuer pursuant to that
certain Stock Purchase Agreement, dated even date herewith, between the Issuer
and the Huizenga Family Foundation, Inc. (the "Other Shares") and any other
shares of Common Stock or other securities issued in respect of the Shares or
Option Shares or Other Shares by way of stock dividend or stock split or in
connection with any recapitalization, merger, consolidation or reorganization;
provided that, as to any particular securities, such securities will cease to be
Registrable Securities when (i) they have been sold pursuant to registration or
pursuant to Rule 144 promulgated by the Securities and Exchange Commission or
any similar rule then in force ("Rule 144") or (ii) there has occurred a
transfer or assignment in respect of such Shares in violation of either of
Section 5.2(b) hereof.
"Requirement of Law" means as to any Person, the articles of
incorporation, by-laws or other organizational or governing documents of such
person, and any Law, or determination of any arbitrator or a court or other
Governmental Authority, in each case applicable to or binding upon such Person
or any of its properties or to which such Person or any of its property is
subject.
"Rust Agreement" means that Agreement and Plan of
Reorganization dated as of December 5, 1994 among the Issuer, Rust Remedial
Services Inc., Enclean Environmental Services Group, Inc., Rust Environmental,
Inc. and Rust International Inc., as the same may be supplemented, amended or
modified from time to time.
"SEC" means the Securities and Exchange Commission.
"SEC Reports" has the meaning specified in Section 3.7 of this
Agreement.
"Securities Act" means the Securities Act of 1933, as amended.
"Shares" has the meaning specified in Section 1.1 of this
Agreement.
"Subsidiary" means as to any Person, a corporation of which
more than 50% of the outstanding capital stock having full voting power is at
the time directly or indirectly owned or controlled by such Person.
6.2 Other Definitional Provisions.
(a) All terms defined in this Agreement shall have the defined
meanings when used in any certificate, report or other documents made or
delivered pursuant hereto or thereto, unless the context otherwise requires.
(b) Terms defined in the singular shall have a comparable
meaning when used in the plural, and vice versa.
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(c) All matters of an accounting nature in connection with
this Agreement and the transactions contemplated hereby shall be determined in
accordance with GAAP applied on a basis consistent with prior periods, where
applicable.
(d) As used herein, the neuter gender shall also denote the
masculine and feminine, and the masculine gender shall also denote the neuter
and feminine, where the context so permits.
(e) The words "hereof", "herein" and "hereunder", and words of
similar import, when used in this Agreement shall refer to this Agreement as a
whole and not to any particular provision of this Agreement.
ARTICLE VII.
REGISTRATION RIGHTS
Investor shall have the following registration rights with
respect to the Shares and the Option Shares.
7.1 Transfer of Registration Rights. Investor may assign the
registration rights with respect to the Shares and the Option Shares to any
Affiliate as well as any party or parties to which it may from time to time
transfer the Shares or Option Shares; except that Investor may transfer the
demand registration rights discussed in Section 7.3 hereof only to subsequent
holders of at least two hundred fifty thousand (250,000) Shares or Option Shares
after giving effect to the transfer of any Shares or Option Shares in connection
therewith. Upon assignment of any registration rights pursuant to this Section
7.1, Investor shall deliver to Issuer a notice of such assignment which includes
the identity and address of any assignee (collectively, Investor and each such
subsequent holder is referred to as a "Holder").
7.2 Piggyback Registration.
(a) From and after the Holding Period, if at any time, and
from time to time, the Issuer proposes to effect a registration for its account
or for the account of a security holder or holders (other than a registration on
Form S-8, or any similar or successor form thereto, relating to an employee or
director stock option, stock purchase or other benefit plan, or a registration
relating to shares issuable in a merger, consolidation, exchange offer, purchase
of assets or any similar transaction) ("Piggyback Registration"), the Issuer
shall:
(i) promptly give to each Holder of Registrable
Securities written notice thereof (which written notice shall
include a list of the jurisdictions in which the Issuer
intends to attempt to qualify such securities under or
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otherwise comply with the applicable blue sky or other state
securities laws); and
(ii) include in such registration (and any related
qualification under or other compliance with blue sky or other
state securities laws), and in any underwriting involved
therein on the same terms and conditions as the securities
being issued thereunder, all the Registrable Securities
specified in a written request, made within 15 days after
receipt of such written notice from the Issuer, by any holder
of Registrable Securities; provided that if such registration
is a Cutback Registration, then (i) if such registration is a
primary registration, whether or not it includes a secondary
registration, on behalf of the Issuer, the Issuer shall
register in such registration (A) first, the shares of Common
Stock the Issuer proposes to sell in such registration, and
(B) second, shares of Common Stock held by each holder of
Registrable Securities and the Electing Holders on a pro rata
basis, based upon the number of shares of Common Stock the
holders of Registrable Securities and any Electing Holders
originally sought to include in such registration; and (ii) if
such registration is a Piggyback Registration which is solely
a secondary registration on behalf of holders of Common Stock,
the Issuer shall register in such registration shares of
Common Stock held by each holder of Registrable Securities and
the Electing Holders on a pro rata basis, based upon the
number of shares of Common Stock the holders of Registrable
Securities and any Electing Holders originally sought to
include in such registration and provided, further, that if
such registration is a Cutback Registration, the Issuer shall
use its best efforts to include all shares of Registrable
Securities specified in the Holder's written request, but such
best efforts shall not include an obligation on the part of
the Issuer to reduce the number of shares of the Issuer or the
other Electing Holders included in such Cutback Registration
beyond that expressly provided for in this Section.
(b) If the registration of which the Issuer gives notice is
pursuant to an effective registration statement under the Securities Act
involving an underwriting, the Issuer shall so advise each Holder as part of the
written notice given pursuant to subclause (i) above. In such event, the right
of each such Holder to registration pursuant to this Section shall be
conditioned upon such Holder's participation in such underwriting, the inclusion
of the Registrable Securities in the underwriting and such Holder entering into
an underwriting agreement, containing customary terms and conditions in a form
reasonably acceptable to the Holder and the Issuer, with the underwriter or
underwriters selected for such underwriting by the Issuer; provided that if such
underwriting agreement shall not be acceptable to Holder and after reasonable
efforts by Issuer cannot be made acceptable to Holder, the Issuer may proceed
with such registration without registering the stock of Holder in such
registration.
7.3 Holder Requested Registration. (a) Subject to the
limitations contained in Section 7.1 and paragraph (c) of this Section 7.3,
Holder shall have the right to require the Issuer to effect any registration
with respect to the Registrable Securities held by Holder.
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Upon receipt of a request for registration from Holder, the Issuer shall as soon
as practicable, use its best efforts to effect such registration, including
without limitation, the execution of an undertaking to file post-effective
amendments, appropriate qualification under applicable blue sky or other state
securities laws in accordance with Section 7.4(a)(v) hereof and appropriate
compliance with applicable regulation issued under the Securities Act as may be
so requested and as would permit or facilitate the sale and distribution of all
or such portion of such Registrable Securities as are specified in such request;
provided that the Issuer shall not be obligated to take any action to effect any
such registration, qualification or compliance pursuant to this Section 7.3
within 120 days immediately following the effective date of any registration
statement pertaining to an underwritten public offering of securities of the
Issuer for its own account, unless the Holder shall have elected to include
Registrable Securities in such registration statement pursuant to Section 7.2
hereof and all of such Registrable Securities which Holder elected to include in
such registration statement were not so included as a result of the provisions
of Section 7.2(a)(ii) hereof. Holder shall have the right to designate the
managing underwriter for any registration under this Section 7.3, which
underwriter shall be reasonably acceptable to Issuer.
(b) The Issuer shall file a registration statement covering
the Registrable Securities so requested to be registered as soon as practicable
after receipt of the request of Holder, but in no event sooner than thirty days
thereafter.
(c) Holders of Registrable Securities shall be entitled to an
aggregate of 3 demand registrations and each such demand registration shall
include at least 250,000 Registrable Securities.
(d) The Issuer shall not be required to effect a registration
at a time when audited financial statements are not available or when the Issuer
is in possession of material information which, in the exercise of its
reasonable judgment, the Issuer deems advisable not to disclose in a
registration statement, however, the Issuer may only postpone a registration for
such reasons, in each case, for up to 60 days and not more than once during any
three month period.
(e) If Holder intends to distribute the Registrable Securities
covered by its request by means of an underwriting, it shall so advise the
Issuer as part of its request made pursuant to this Section. Holder shall enter
into an underwriting agreement, including best efforts or continuous offering
underwriting, in a form which is reasonably satisfactory to Holder with the
underwriter or underwriters selected for such underwriting by Holder and which
are reasonably satisfactory to the Issuer. The Issuer shall sign an agreement
with such underwriters confirming for the benefit of the underwriters its
indemnity obligations under this Agreement. The Issuer may include securities
for its own account in such registration if the underwriter so agrees and if the
number of Registrable Securities which would otherwise have been included in
such registration and underwriting would not thereby be limited.
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(f) In the event more than one Person is a Holder of
Registrable Securities, the rights of the Holder under this Section 7.3 may be
exercised only upon election of Investor or such Holders of more than 51% of the
Registrable Securities collectively.
7.4 Registration Procedures. (a) In case of each registration,
qualification or compliance effected by the Issuer subject to this Article VII,
the Issuer shall keep Holder advised in writing as to the initiation of each
such registration, qualification and compliance and as to the completion
thereof. In addition, at its expense, the Issuer shall:
(i) before filing a registration statement or
prospectus or any amendment or supplements thereto subject to
this Article VII, the Issuer shall furnish to counsel selected
by Holder copies of all such documents proposed to be filed
and the portions of such documents provided in writing by
Holder for use therein and for which Holder shall indemnify
the Issuer shall be subject to such Holders approval;
(ii) prepare and file with the SEC such
amendments and supplements to such registration statement as
may be necessary to keep such registration, qualification or
compliance effective for a period of up to 120 days or until
Holder has completed the distribution described in the
registration statement relating thereto, whichever first
occurs and comply with provisions of the Securities Act with
respect to the disposition of all securities covered thereby
during such period;
(iii) update, correct, amend and supplement such
registration, qualification or compliance as necessary;
(iv) if such offering is to be underwritten, in
whole or in part, enter into a written underwriting agreement
containing customary terms and conditions and in form and
substance reasonably satisfactory to the managing underwriter
and the registering Holder;
(v) furnish such number of prospectuses,
including preliminary prospectuses, and other documents
incident thereto as Holder may reasonably request from time to
time, which shall be a Selling Expense;
(vi) register or qualify such Registrable
Securities under such other securities or blue sky laws of
such jurisdictions of the United States (up to five of which
shall be at the expense of the Issuer, and any additional of
which shall be at the expense of Holder) as Holder may deem
reasonable to enable it to consummate the disposition in such
jurisdiction of the Registrable Securities (provided that
Issuer will not be required to (i) qualify generally to do
business in any jurisdiction where it would not otherwise be
required to qualify but for this section, or (ii) consent to
general service of process in any such jurisdiction);
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(vii) notify Holder at any time when a prospectus
relating to the Registrable Securities is required to be
delivered under the Securities Act, of the happening of any
event as a result of which the prospectus included in such
registration statement contains an untrue statement of a
material fact or omits any fact necessary to make the
statement therein not misleading, and at the request of
Holder, Issuer will prepare a supplement or amendment to such
prospectus so that, as thereafter delivered to the purchasers
of such shares, such prospectus will not contain any untrue
statements of a material fact or omit to state any fact
necessary to make the statements therein not misleading;
(viii) cause all such Registrable Securities to
be listed on each securities exchange on which similar
securities issued by Issuer are then listed;
(ix) provide a transfer agent and registrar for
all such Registrable Securities not later than the effective
date of such registration statement;
(x) upon the sale of any Registrable Securities
pursuant to such registration statement, remove all
restrictive legends from all certificates or other instruments
evidencing the Registrable Securities;
(xi) furnish, at the request of Holder, on the
date that such Registrable Securities are delivered to the
underwriter for sale in connection with a registration
pursuant to this section, if such Registrable Securities are
being sold through an underwriter, or if such Registrable
Securities are not being sold through an underwriter, on the
date that the registration statement with respect to such
Registrable Securities becomes effective, (i) an opinion dated
such date of the counsel representing Issuer for purpose of
such registration, in form and substance as is customarily
given to underwriters in an underwritten public offering,
addressed to such underwriter, if any, and to Holder; and (ii)
a letter dated as of such date from the independent certified
public accountant of Issuer, in form and substance as is
customarily given by independent certified public accountants
to underwriters in connection with a public offering,
addressed to the underwriter, if any, and to Holder; and
(xii) make available for inspection by Holder,
any underwriter participating in any disposition pursuant to
such registration statement, and any attorney, accountant or
any other agent retained by Holder or such underwriter, all
financial and other records, pertinent corporate documents and
properties of Issuer, and cause Issuer's officers, directors
and employees to supply all information reasonably requested
by any such Holder, underwriter, attorney, accountant or agent
in connection with such registration statement.
(b) Except as required by law, all expenses incurred by the
Issuer in complying with this Article VII, including but not limited to, all
registration, qualification
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<PAGE> 20
and filing fees, printing expenses, fees and disbursements of counsel for the
Issuer, blue sky fees and expenses in accordance with Section 7.4(A)(v) hereof,
including fees and disbursements of counsel related to all blue sky matters, but
excluding the compensation of regular employees of the Issuer which shall be
paid in any event by the Issuer ("Registration Expenses") incurred in connection
with any registration, qualification or compliance pursuant to such Sections
shall be borne by the Issuer. All underwriting discounts and selling commissions
applicable to a sale ("Selling Expenses") incurred in connection with any
registration of Registrable Securities and the legal fees of Holder shall be
born by Holder.
7.5 Further Information. If Registrable Securities owned by a
Holder are included in any registration, such Holder shall furnish the Issuer
such information regarding itself and the distribution proposed by such Holder
as the Issuer may reasonably request and as shall be required in connection with
any registration, qualification or compliance referred to in this Agreement.
7.6 Registration During Holding Period. Issuer agrees not to
register, prior to the expiration of the Holding Period, any shares of Common
Stock under the Securities Act to which Investor's registration rights
contemplated by Section 7.2 hereof would apply unless provision is made to allow
Holder to exercise the registration rights provided for under Section 7.2
notwithstanding any requirements under the Hart-Scott-Rodino Antitrust
Improvements Act of 1976, as amended.
ARTICLE VIII.
INDEMNIFICATION
8.1 Indemnification Relating to Registration Rights. (a) With
respect to any registration, qualification or compliance effected or to be
effected pursuant to Article VII of this Agreement, the Issuer shall indemnify
each holder of Registrable Securities whose securities are included or are to be
included therein, each of such holder's directors and officers, each underwriter
(as defined in the Securities Act) of the securities sold by such holder, and
each Person who controls (within the meaning of the Securities Act) any such
holder or underwriter (a "Controlling Person") from and against all losses,
damages and liabilities (or actions in respect thereof) arising out of or based
on any claim, cause of action, proceeding or litigation asserted or commenced or
threatened against any such holder or any of its officers and directors or any
such underwriter or Controlling Person concerning:
(i) any untrue statement (or alleged untrue statement) of a
material fact contained in any prospectus, offering circular or other
document (including any related registration statement, notification or
the like) incident to any such registration, qualification or
compliance;
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<PAGE> 21
(ii) any omission (or alleged omission) to state therein a
material fact required to be stated therein or necessary to make the
statement therein, in the light of the circumstances under which it was
made, not misleading; or
(iii) any violation by the Issuer of the Securities Act or any
rule or regulation promulgated thereunder applicable to the Issuer, or
of any blue sky or other state securities laws or any rule or
regulation promulgated thereunder applicable to the Issuer,
in each case, relating to action or inaction required of the Issuer in
connection with any such registration, qualification or compliance, and subject
to Section 8.2 below will reimburse each such Person entitled to indemnity under
this Section 8.1 for all legal and other expenses incurred in connection with
investigating or defending any such claim, loss damage, liability or action;
provided, however, that, the foregoing indemnity and reimbursement obligation
shall not be applicable to the extent that any such claim, loss, damage or
liability arises out of or is based on any untrue statement (or alleged untrue
statement) or omission (or alleged omission) made in reliance upon and in
conformity with written information furnished to the Issuer by or on behalf of
such a holder or by or on behalf of such an underwriter specifically for use in
such prospectus, offering circular or other document; provided, further,
however, that, with respect to any untrue statement (or alleged untrue
statement) or omission (or alleged omission) made in any preliminary prospectus,
the indemnity agreement contained in this Section shall not inure to the benefit
of any underwriter, or, if there shall be no such underwriter, other person
participating in such sale who is obligated under the Securities Act to deliver
a prospectus ("Delivering Person"), to the extent that any such losses claims,
damages or liabilities of such underwriter or Delivering Person, as the case may
be, result from the fact that there was not delivered to any Person who
purchased Registrable Securities a copy of the final prospectus relating to such
registration, as then amended or supplemented (exclusive of material
incorporated by reference) at or prior to the written confirmation of the sale
of such Registrable Securities to such Person), if (A) such delivery was
required by the Securities Act, (B) the untrue statement (or alleged untrue
statement) or omission (or alleged omission) made in such preliminary prospectus
was corrected in such final prospectus, and (C) the Issuer had previously and
timely furnished copies thereof to such underwriter or Delivering Person, as the
case may be.
(b) With respect to any registration, qualification or
compliance effected or to be effected pursuant to this Agreement, each holder of
Registrable Securities whose securities are included or are to be included
therein, shall indemnify the Issuer, its directors and officers, and, if and to
the extent required by the underwriters of an underwritten offering in which
such holder will be selling Registrable Securities, each underwriter (as defined
in the Securities Act) of the securities sold by such holder and each Person who
controls (within the meaning of the Securities Act) the Issuer or any such
underwriter (a "Controller") from and against all losses, damages and
liabilities (or actions in respect thereof) arising out of or based on any
claim, cause of action, proceeding or litigation asserted or commenced against
the Issuer or any of its directors and officers or any such underwriter or
Controller concerning:
18
<PAGE> 22
(i) any untrue statement (or alleged untrue statement) of a
material fact contained in any prospectus, offering circular or other
document (including any related registration statement, notification or
the like) incident to any such registration, qualification or
compliance;
(ii) any omission (or alleged omission) to state therein a
material fact required to be stated therein or necessary to make the
statement therein, in the light of the circumstances under which it was
made, not misleading; or
(iii) any violation by such holder of the Securities Act or
any rule or regulation promulgated thereunder applicable to the Issuer
or such holder or of any blue sky or other state securities laws or any
rule or regulation promulgated thereunder applicable to the Issuer or
such holder,
in each case, relating to action or inaction required of such holder in
connection with any such registration, qualification or compliance, and subject
to Section 8.2 below will reimburse each such Person entitled to indemnity under
this Section for all legal and other expenses reasonably incurred in connection
with investigating or defending any such claim, loss, damage, liability or
action; provided, however, that, the foregoing indemnity and reimbursement
obligation shall only be applicable to the extent that any such claim, loss,
damage or liability arises out of or is based on any untrue statement (or
alleged untrue statement) or omission (or alleged omission) made in reliance
upon and in conformity with written information furnished to the Issuer by or on
behalf of the holder specifically for use in such prospectus, offering circular
or other document; provided, however, that the obligations of the holder
hereunder shall be limited to an amount equal to the proceeds to the holder of
Registrable Shares sold as contemplated hereunder.
8.2 Indemnification Procedures. Each Person entitled to
indemnification under this Section (an "Indemnified Party") shall give notice as
promptly as reasonably practicable to each party required to provide
indemnification under this Section (an "Indemnifying Party") of any action
commenced against it in respect of which indemnity may be sought hereunder, but
failure so to notify an Indemnifying Party shall not relieve such Indemnifying
Party from any liability that it may have otherwise than on account of this
indemnity agreement so long as such failure shall not have materially prejudiced
the position of the Indemnifying Party. Upon such notification, the Indemnifying
Party shall assume the defense of such action and after such assumption the
Indemnifying Party shall not be entitled to reimbursement of any expenses
incurred by it in connection with such action except as described below. In any
such action, any Indemnified Party shall have the right to retain its own
counsel, but the fees and expenses of such counsel shall be at the expense of
such Indemnified Party unless (i) the Indemnifying Party and the Indemnified
Party shall have mutually agreed to the contrary or (ii) the named parties in
any such action (including any impleaded parties) include both the Indemnifying
Party and the Indemnified Party and representation of both parties by the same
counsel would be inappropriate due to actual or potential differing interests
between them. It is understood that the Indemnifying Party shall not, in
connection with any action in the same jurisdiction be liable for the fees and
expenses
19
<PAGE> 23
of more than one separate firm for all Indemnified Parties in addition to any
firm(s) which the Indemnifying Party may retain to represent it. The
Indemnifying Party shall not be liable for any settlement of any proceeding
effected without its written consent (which shall not be unreasonably withheld
or delayed by such Indemnifying Party), but if settled with such consent or if
there be final judgment for the plaintiff, the Indemnifying Party shall
indemnify the Indemnified Party from and against any loss, damage or liability
by reason of such settlement or judgment.
ARTICLE IX.
MISCELLANEOUS
9.1 Notices. All notices, requests, demands, claims, and other
communications hereunder shall be in writing and shall be delivered by certified
or registered mail (first class postage pre-paid), guaranteed overnight
delivery, or facsimile transmission if such transmission is confirmed by
delivery by certified or registered mail (first class postage pre-paid) or
guaranteed overnight delivery:
(a) if to Issuer to:
OHM Corporation
16406 U.S. Route 224 East
Findlay, Ohio 45840
Attention: General Counsel
Telecopy: (419) 424-4985
with a copy to:
Jones, Day, Reavis & Pogue
41 South High Street
1900 Huntington Center
Columbus, OH 43215
Attention: Robert J. Gilker, Esq.
Telecopy: (614) 469-4198
(b) if to Investor to:
H. Wayne Huizenga
200 South Andrews Avenue
Fort Lauderdale, Florida 33301
Attention: Richard C. Rochon
Telecopy: (305) 523-0801
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<PAGE> 24
with a copy to:
Akerman, Senterfitt & Edison, P.A.
24th Floor, One Brickell Square
801 Brickell Avenue
Miami, FL 33131
Attention: Stephen K. Roddenberry, Esq.
Telecopy: (305) 374-5095
(c) or, in each case, at such other address or to such other
person as may be specified in writing to the other party.
9.2 Non-Waiver of Remedies and Actions. No course of dealing
between the Issuer and Investor with respect to any Common Stock, or any delay
on the part of either such party in exercising any rights available to such
party shall operate as a waiver of any right of such party, except to the extent
expressly waived in writing by such party.
9.3 Headings. The headings in this Agreement are for purposes
of reference only and shall not be considered in construing this Agreement.
9.4 Counterparts. This Agreement may be executed in any number
of counterparts, each of which when so executed and delivered shall constitute
an original and all together shall constitute one Agreement.
9.5 Successors and Assigns. Except as otherwise specifically
provided herein, this Agreement shall bind and inure to the benefit of the
Issuer's and Investor's respective successors and permitted assigns; provided
that neither the Issuer nor Investor shall have any right to assign any of its
rights hereunder except as otherwise specifically provided for herein, or any
interest herein without obtaining the written consent of the other to such
assignment, and any purported assignment made without obtaining such written
consent shall be null and void. Notwithstanding the foregoing, any Person who is
a holder of shares of Common Stock shall have all rights and benefits afforded
to such holder, in its capacity as such, pursuant and subject to the terms of
the Article of Incorporation.
9.6 Survival. Notwithstanding any investigation made by
Investor, all covenants, agreements, representations and warranties made herein
and in certificates delivered pursuant hereto shall survive the delivery to
Investor of the Common Stock to be purchased pursuant to Section 1.1.
9.7 Enforceability. If any term or provision of this
Agreement, or the application thereof to any Person or circumstance, shall, to
any extent, be invalid or unenforceable, the remaining terms and provisions of
this Agreement or application to other Persons and circumstances shall not be
invalidated thereby, and each term and provision hereof shall be construed with
all other remaining terms and provisions hereof to effect the intent of the
parties hereto to the fullest extent permitted by law.
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<PAGE> 25
9.8 Law Governing. This Agreement shall be construed and
enforced in accordance with and shall be governed by the laws of the State of
Ohio applicable to contracts executed by residents of that state, and fully to
be performed, in that state.
9.9 Severability. In the event that any provision of this
Agreement is deemed invalid, illegal or unenforceable, the validity, legality
and enforceability of the remaining provisions shall not in any way be affected
or impaired thereby.
9.10 Remedies. (a) Each of Investor and Issuer acknowledges
that the other party would not have an adequate remedy at law for money damages
in the event that any of the covenants or agreements of such party in this
Agreement was not performed in accordance with its terms, and it is therefore
agreed that each of Investor and Issuer in addition to and without limiting any
other remedy or right such party may have, shall have the right to an injunction
or other equitable relief in any court of competent jurisdiction, enjoining any
such breach and enforcing specifically the terms and provisions hereof, and each
of Investor and Issuer hereby waive any and all defenses such party may have on
the ground of lack of jurisdiction or competence of the court to grant such an
injunction or other equitable relief.
(b) All rights, powers and remedies provided under this
Agreement or otherwise available in respect hereof at law or in equity shall be
cumulative and not alternative, and the exercise or beginning of the exercise of
any thereof by any party shall not preclude the simultaneous or later exercise
of any other such right, power or remedy by such party.
9.11 Expenses. Except as otherwise expressly provided herein,
each party hereto shall bear its own expenses incurred in connection with the
negotiation, execution and performance of this Agreement.
9.12 Entire Agreement. This Agreement and the Option
Agreements constitute the entire understanding of the parties with respect to
the subject matter hereof and superseded all prior discussions, agreements and
representations, whether oral or written, concerning the subject matter hereof.
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<PAGE> 26
IN WITNESS WHEREOF, the parties hereto have caused this Stock
Purchase Agreement to be duly executed and delivered as of the day and year
first above written.
OHM CORPORATION
By: /s/ RANDALL M. WALTERS
--------------------------------------------------
Name: Randall M. Walters
Title: Vice President, General Counsel and Secretary
/s/ H. WAYNE HUIZENGA
--------------------------------------------------
H. Wayne Huizenga
23
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================================================================================
- --------------------------------------------------------------------------------
EXHIBIT A
FIRST OPTION AGREEMENT
by and between
H. WAYNE HUIZENGA
and
OHM CORPORATION
Dated as of March 28, 1995
- --------------------------------------------------------------------------------
================================================================================
<PAGE> 28
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
1. GRANT OF OPTION.................................................................................... 2
1.1 Grant.................................................................................... 2
1.2 Shares To Be Issued; Reservation of Shares............................................... 2
2. ADJUSTMENTS TO OPTION RIGHTS....................................................................... 2
2.1 Stock Combinations....................................................................... 2
2.2 Reorganizations.......................................................................... 2
2.3 Adjustment Upon Changes in Capitalization................................................ 3
2.4 Sales Below Fair Market Value............................................................ 3
2.5 Notice................................................................................... 5
2.6 Fractional Interests..................................................................... 6
2.7 Effect of Alternate Securities........................................................... 7
2.8 Successive Application................................................................... 7
3. EXERCISE........................................................................................... 7
3.1 Exercise of Option....................................................................... 7
3.2 Issuance of Option Shares................................................................ 7
4. RIGHTS OF HOLDER................................................................................... 7
5. TRANSFERABILITY.................................................................................... 7
6. LEGEND ON OPTION SHARES............................................................................ 8
7. MISCELLANEOUS...................................................................................... 8
7.1 Amendments............................................................................... 8
7.2 Notices.................................................................................. 8
7.3 Waiver By Consent........................................................................ 9
7.4 No Implied Waiver; Rights Are Cumulative................................................. 9
7.5 Governing Law............................................................................ 9
7.6 Severability............................................................................. 9
7.7 Captions................................................................................. 9
7.8 Entire Agreement......................................................................... 10
</TABLE>
-i-
<PAGE> 29
THE SECURITIES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT") OR UNDER
ANY APPLICABLE STATE LAW AND MAY NOT BE TRANSFERRED, SOLD OR
OTHERWISE DISPOSED OF IN THE ABSENCE OF AN EFFECTIVE
REGISTRATION UNDER THE ACT OR AN OPINION OF COUNSEL REASONABLY
SATISFACTORY TO THE ISSUER THAT SUCH REGISTRATION IS NOT
REQUIRED UNDER THE ACT AND THE RULES AND REGULATIONS
PROMULGATED THEREUNDER OR SUCH STATE SECURITIES LAWS AND
FURTHER PROVIDED THAT SUCH TRANSFER IS EFFECTED IN ACCORDANCE
WITH THE PROVISIONS OF SECTION 5.2(b) OF THAT CERTAIN STOCK
PURCHASE AGREEMENT BY AND BETWEEN THE ISSUER AND H. WAYNE
HUIZENGA, DATED AS OF MARCH 28, 1995.
FIRST OPTION AGREEMENT
This FIRST OPTION AGREEMENT (the "Option") is being entered
into this 28th day of March, 1995, by and between OHM Corporation, an Ohio
corporation (together with its successors and permitted assigns, the "Company")
and H. WAYNE HUIZENGA, an individual resident of the State of Florida (together
with his successors and permitted assigns, the "Buyer"). Capitalized terms used
herein and not otherwise defined herein shall have the meanings ascribed to them
in the Stock Purchase Agreement (as defined below).
RECITALS
A. The Company and Buyer have entered into a Stock Purchase
Agreement dated as of the date hereof (the "Stock Purchase Agreement") pursuant
to which, among other things, the Company agreed to sell and Buyer agreed to
purchase certain shares of the Company's common stock, par value $.10 per share
(the "Common Stock").
B. Pursuant to the Stock Purchase Agreement, the Company has
agreed to grant to Buyer an option to purchase up to six hundred twenty thousand
(620,000) shares of Common Stock on the terms set forth in the Stock Purchase
Agreement and this Option.
NOW, THEREFORE, for the consideration set forth in the Stock
Purchase Agreement and other good and valuable consideration, the sufficiency
and receipt of which is hereby acknowledged, the Company agrees with Buyer as
follows:
<PAGE> 30
1. GRANT OF OPTION.
1.1 GRANT. The Company hereby grants to Buyer this Option,
exercisable as provided herein in whole or in part at any time and from time to
time during the period from the date hereof through 6:00 p.m., local time in New
York, New York, on March 27, 2000 (the "Exercise Period") to purchase an
aggregate of up to Six Hundred Twenty Thousand (620,000) shares of Common Stock
(the "Option Shares"), at an exercise price of ten dollars ($10.00) per share
(as it may be hereinafter adjusted, the "Exercise Price"). Buyer and its
permitted successors and assigns are hereinafter referred to as "Holder."
1.2 SHARES TO BE ISSUED; RESERVATION OF SHARES. The Company
covenants and agrees that all Option Shares will, upon issuance, be duly
authorized, validly issued and outstanding, fully paid and non-assessable, and
free from all taxes, liens and charges with respect to the issuance thereof,
except as otherwise provided in the Stock Purchase Agreement. The Company
further covenants and agrees that it will from time to time take all actions
required to assure that the par value per share of the Common Stock is at all
times equal to or less than the effective Exercise Price. The Company further
covenants and agrees that, during the Exercise Period, the Company will at all
times have authorized and reserved sufficient shares of Common Stock to provide
for the exercise of this Option in full.
2. ADJUSTMENTS TO OPTION RIGHTS.
2.1 STOCK COMBINATIONS. In case the Company shall combine all
of the outstanding Common Stock proportionately into a smaller number of shares,
the Exercise Price per Option Share hereunder in effect immediately prior to
such combination shall be proportionately increased and the number of Option
Shares issuable to the Holder upon exercise of this Option shall be
proportionately decreased, as of the effective date of such combination, as
follows: (a) the number of Option Shares purchasable upon the exercise of the
Option immediately prior to the effective date of such combination, shall be
adjusted so that the holder of the Option exercised after that date shall be
entitled to receive the number and kind of Option Shares which the holder of the
Option would have owned and been entitled to receive as a result of the
combination had the Options been exercised immediately prior to that date, and
(b) the Exercise Price in effect immediately prior to such adjustment shall be
adjusted by multiplying such Exercise Price by a fraction, the numerator of
which is the aggregate number of shares of Common Stock purchasable upon
exercise of the Options immediately prior to such adjustment, and the
denominator of which is the aggregate number of shares of Common Stock
purchasable upon exercise of the Options immediately thereafter.
2.2 REORGANIZATIONS. If any of the following transactions
(each, a "Special Transaction") shall become effective: (i) a capital
reorganization or reclassification of the capital stock of the Company, (ii) a
consolidation or merger of the Company with and into another entity, or (iii) a
sale or conveyance of all or substantially all of the Company's assets, then, as
a condition of any such Special Transaction, lawful and adequate provision shall
be made whereby the Holder shall thereafter have the right to purchase and
receive, at any time after the consummation of such Special Transaction until
the expiration of the Exercise Period, upon the basis and upon the terms and
conditions specified herein, and in
2
<PAGE> 31
lieu of the Option Shares immediately theretofore issuable upon exercise of this
Option for the aggregate Exercise Price in effect immediately prior to such
consummation, such shares of stock, other securities, cash or other assets as
may be issued or payable in and pursuant to the terms of such Special
Transaction with respect to or in exchange for a number of outstanding shares of
Common Stock equal to the number of Option Shares immediately theretofore
issuable upon exercise of this Option had such Special Transaction not taken
place (pro rated in the case of any partial exercises). In connection with any
Special Transaction, appropriate provision shall be made with respect to the
rights and interests of the Holder to the end that the provisions of this Option
(including without limitation provisions for adjustment of the Exercise Price
and the number of Option Shares issuable upon the exercise of the Option), shall
thereafter be applicable, as nearly as may be, to any shares of stock, other
securities, cash or other assets thereafter deliverable upon the exercise of
this Option. The Company shall not effect any Special Transaction unless prior
to or simultaneously with the closing the successor entity (if other than the
Company), if any, resulting from such consolidation or merger or the entity
acquiring such assets shall assume by a written instrument executed and mailed
by certified mail or delivered to the Holder at the address of the Holder
appearing on the books of the Company, the obligation of the Company or such
successor corporation to deliver to such Holder such shares of stock,
securities, cash or other assets as, in accordance with the foregoing
provisions, such Holder has rights to purchase.
2.3 ADJUSTMENT UPON CHANGES IN CAPITALIZATION. In the event of
any change in the Common Stock by reason of stock dividends, stock splits,
recapitalizations or reclassifications, the type and number of Option Shares
issuable upon exercise of this Option, and the Exercise Price, as the case may
be, shall be adjusted as follows: (a) the number of Option Shares purchasable
upon the exercise of the Option immediately prior to the record date for such
dividend or distribution, or the effective date of such recapitalization or
reclassification shall be adjusted so that the holder of the Option exercised
after that date shall be entitled to receive the number and kind of Option
Shares which the holder of the Option would have owned and been entitled to
receive as a result of the dividend, distribution, recapitalization or
reclassification had the Options been exercised immediately prior to that date,
and (b) the Exercise Price in effect immediately prior to such adjustment shall
be adjusted by multiplying such Exercise Price by a fraction, the numerator of
which is the aggregate number of shares of Common Stock purchasable upon
exercise of the Options immediately prior to such adjustment, and the
denominator of which is the aggregate number of shares of Common Stock
purchasable upon exercise of the Options immediately thereafter. No such
adjustment shall be made on account of any dividend payable other than in
securities of the Company.
2.4 SALES BELOW FAIR MARKET VALUE. (a) In the event the
Company shall sell and issue shares of Common Stock, or rights, options,
warrants or convertible or exchangeable securities containing the right to
subscribe for or purchase shares of Common Stock (excluding (i) shares, rights,
options, warrants or convertible or exchangeable securities issued in any of the
transactions described in Sections 2.2 or 2.3 above and (ii) the Option and any
shares issued on exercise of the Option) at a price per share of Common Stock
(determined in the case of such rights, options, warrants or convertible or
exchangeable securities by dividing (X) the total amount receivable by the
Company in
3
<PAGE> 32
consideration of the sale and issuance of such rights, options, warrants or
convertible or exchangeable securities, plus the total consideration payable to
the Company upon exercise, conversion or exchange thereof by (Y) the total
number of shares of Common Stock covered by such rights, options, warrants or
convertible or exchangeable securities) lower than the Current Market Price on
the date the Company fixes the offering price of such shares, rights, options,
warrants or convertible or exchangeable securities, then the Exercise Price
shall be adjusted so that it shall equal the price determined by multiplying the
Exercise Price in effect immediately prior thereto by a fraction, (i) the
numerator of which shall be the sum of (A) the number of shares of Common Stock
outstanding immediately prior to such sale and issuance plus (B) the number of
shares of Common Stock which the aggregate consideration received (determined as
provided below) for such sale or issuance would purchase at such Current Market
Price per share, and (ii) the denominator of which shall be the total number of
shares of Common Stock outstanding immediately after such sale and issuance. For
the purposes of such adjustment, the shares of Common Stock which the holder of
any such rights, options, warrants or convertible or exchangeable securities
shall be entitled to subscribe for or purchase shall be deemed to be issued and
outstanding as of the date of such sale and issuance and the consideration
received by the Company therefor shall be deemed to be the consideration
received by the Company for such rights, options, warrants or convertible or
exchangeable securities, plus the consideration or premium stated in such
rights, options, warrants or convertible or exchangeable securities to be paid
for the shares of Common Stock covered thereby. In case the Company shall sell
and issue rights, options, warrants or convertible or exchangeable securities
containing the right to subscribe for or purchase shares of Common Stock
together with one or more other securities as part of a unit at a price per
unit, then in determining the "price per share of Common Stock" and the
"consideration received by the Company" for purposes of the first sentence of
this Section 2.4, the Board of Directors of the Company shall determine, in good
faith, the fair value of the rights, options, warrants or convertible or
exchangeable securities then being sold as part of such unit, and such
determination, in the absence of fraud or bad faith, shall be binding upon all
holders of the Option.
(b) For the purpose of any computation under this Section 2.4, the
"Current Market Price" at any date (the "Computation Date") shall be deemed to
be the average of the daily closing prices of the Common Stock for twenty (20)
consecutive New York Stock Exchange trading days ending the second New York
Stock Exchange trading day before such date; provided, however, that if there
shall have occurred prior to the Computation Date any event described in Section
2.2 or 2.3 which shall have become effective with respect to market transactions
at any time (the "Market-Effect Date") on or after the beginning of such 20-day
period, the closing price for each trading day preceding the Market-Effect Date
shall be adjusted, for purposes of calculating such average, by multiplying such
closing price by a fraction the numerator of which is the Exercise Price as in
effect immediately prior to the Computation Date and the denominator of which is
the Exercise Price as in effect immediately prior to the Market-Effect Date, it
being understood that the purpose of this proviso is to ensure that the effect
of such event on the market price of the Common Stock shall, as nearly as
possible, be eliminated in order that the distortion in the calculation of the
Current Market Price may be minimized. The "closing price" for any date shall be
the last reported sale price or, in case no such reported sale takes place on
such date, the average of
4
<PAGE> 33
the last reported bid and asked prices on such day, in either case on the
principal national securities exchange on which the Common Stock is admitted to
trading or listed if that is the principal market for the Common Stock or if not
listed or admitted to trading on any national securities exchange or if such
national securities exchange is not the principal market for the Common Stock,
the closing bid price as reported by the National Association of Securities
Dealers Automated Quotation System or its successor, if any, or such other
generally accepted source of publicly reported bid and asked quotations as the
Company may reasonably designate. If the price of the Common Stock is not so
reported or the Common Stock is not publicly traded, the Current Market Price
per share as of any Computation Date shall be determined by the Board of
Directors in good faith as it considers appropriate.
(c) All calculations under this Section 2.4 shall be made to the
nearest one- hundredth of a cent.
(d) For the purposes of all calculations under this Section 2.4, shares
of Common Stock or other securities held in the treasury of the Company shall
not be deemed to be outstanding, and the sale or other disposition of any shares
of Common Stock or other securities held in the treasury of the Company shall be
deemed an issuance thereof.
(e) No adjustment in the Exercise Price in accordance with the
provisions of Section 2.4 hereof need be made if such adjustment would amount to
a change in such Exercise Price of less than $.001; provided, however, that the
amount by which any adjustment is not made by reason of the provisions of this
Section 2.4 shall be carried forward and taken into account at the time of any
subsequent adjustment in the Exercise Price.
No adjustment need be made in connection with the issuance of any
shares of Common Stock or options, warrants or convertible or exchangeable
securities (i) pursuant to any employee or director stock option, stock purchase
stock bonus plan or other employee or director benefit plan, (ii) in a bona fide
public offering pursuant to a firm commitment underwriting, or (iii) in
connection with mergers, acquisitions, consolidations, exchange offers, purchase
of assets or similar transactions or other transactions in which the
consideration for the issuance of Common Stock consists of property other than
cash.
(f) Upon each adjustment of the Exercise Price pursuant to Section 2.4
hereof, the Option shall thereupon evidence the right to purchase that number of
shares of Common Stock (calculated to the nearest hundredth of a share) obtained
by multiplying the number of shares of Common Stock purchasable immediately
prior to such adjustment upon exercise of the Option by the Exercise Price in
effect immediately prior to such adjustment and dividing the product so obtained
by the Exercise Price in effect immediately after such adjustment. The
adjustment pursuant to this Section 2.4 to the number of shares of Common Stock
purchasable upon exercise of an Option shall be made each time an adjustment of
the Exercise Price is made pursuant to Section 2.4 hereof.
2.5 NOTICE. Whenever this Option or the number of Option
Shares issuable hereunder is to be adjusted as provided herein or a dividend or
distribution (in cash, stock or
5
<PAGE> 34
otherwise and including, without limitation, any liquidating distributions) is
to be declared by the Company, or a definitive agreement with respect to a
Special Transaction has been entered into, the Company shall forthwith cause to
be sent to the Holder at the last address of the Holder shown on the books of
the Company, by first-class mail, postage prepaid, at least ten (10) days prior
to the record date specified in (A) below or at least twenty (20) days before
the date specified in (B) below, a notice stating in reasonable detail the
relevant facts and any resulting adjustments and the calculation thereof, if
applicable, and stating (if applicable):
(A) the date to be used to determine (i) which
holders of Common Stock will be entitled to receive notice of such dividend,
distribution, subdivision or combination (the "Record Date"), and (ii) the date
as of which such dividend distribution, subdivision or combination shall be
made; or, if a record is not to be taken, the date as of which the holders of
Common Stock of record to be entitled to such dividend, distribution,
subdivision or combination are to be determined (provided, that in the event the
Company institutes a policy of declaring cash dividends on a periodic basis, the
Company need only provide the relevant information called for in this clause (A)
with respect to the first cash dividend payment to be made pursuant to such
policy and thereafter provide only notice of any changes in the amount or the
frequency of any subsequent dividend payments), or
(B) the date on which a Special Transaction is
expected to become effective, and the date as of which it is expected that
holders of Common Stock of record shall be entitled to exchange their shares of
Common Stock for securities or other property deliverable upon consummation of
the Special Transaction (the "Exchange Date").
Upon delivery to Holder of a notice contemplated by
either of clause (A) or clause (B) above, during the Holding Period, as such
term is defined in Section 6.1 of the Stock Purchase Agreement, Holder shall be
deemed a stockholder as of the Record Date or Exchange Date, as the case may be,
despite any delay in the exercise of the Option resulting from holding or
waiting periods required by any Government Authority, as such term is defined in
Section 6.1 of the Stock Purchase Agreement, including, but not limited to, the
holding or waiting period applicable under the Hart-Scott-Rodino Antitrust
Improvements Act of 1976, as amended; provided that (i) upon receipt of the
notice referenced above and prior to the Record Date or the Exchange Date, as
applicable, Holder shall deliver written confirmation to the Company stating
that Holder intends to exercise all or a portion of the Option, upon expiration
of the applicable holding or waiting period, and (ii) Holder, in fact, exercises
such Option within 10 days of the expiration of the applicable holding or
waiting period.
2.6 FRACTIONAL INTERESTS. The Company shall not be required to
issue fractions of shares of Common Stock on the exercise of this Option. If any
fraction of a share of Common Stock would, except for the provisions of this
Section 2.6, be issuable upon the exercise of this Option, the Company shall,
upon such issuance, purchase such fraction for an amount in cash equal to the
current value of such fraction, computed on the basis of the last reported close
price of the Common Stock on the New York Stock Exchange ("NYSE") on the last
business day prior to the date of exercise upon which such a sale shall
6
<PAGE> 35
have been effected, or, if the Common Stock is not so listed on the NYSE, as the
Board of Directors of the Issuer may in good faith determine.
2.7 EFFECT OF ALTERNATE SECURITIES. If at any time, as a
result of an adjustment made pursuant to this Section 2, the holder of the
Options shall thereafter become entitled to receive any securities of the
Company other than shares of Common Stock, then the number of such other
securities receivable upon exercise of an Option shall be subject to adjustment
from time to time on terms as nearly equivalent as practicable to the provisions
with respect to shares of Common Stock contained in this Section 2.
2.8 SUCCESSIVE APPLICATION. The provisions of this Section 2
shall similarly apply to successive events covered by this Section.
3. EXERCISE.
3.1 EXERCISE OF OPTION. (a) The Holder may exercise this
Option by (i) surrendering this Option, with the form of exercise notice
attached hereto as Exhibit "A" duly executed by Holder, and (ii) making payment
to the Company of the aggregate Exercise Price for the applicable Option Shares
in cash, by certified check or bank check or by wire transfer to an account
designated by the Company. Upon any partial exercise of this Option, the
Company, at its expense, shall forthwith issue to the Holder for its surrendered
option a replacement Option identical in all respects to this Option, except
that the number of Option Shares shall be reduced accordingly.
(b) Record Date for ownership of Option Shares. Each person in whose
name any Option Share certificate is issued upon exercise of the Options shall
for all purposes been deemed to have become the holder of record of the Option
Shares for which such Options were exercised on, and such Option Share
certificate shall be dated the date upon which the Option exercise notice was
duly surrendered and payment of the Exercise Price was tendered to the Company.
3.2 ISSUANCE OF OPTION SHARES. The Option Shares purchased
shall be issued to the Holder exercising this Option as of the close of business
on the date on which all actions and payments required to be taken or made by
Holder, pursuant to Section 3.1, shall have been so taken or made. Certificates
for the Option Shares so purchased shall be delivered to the Holder within a
reasonable time, not exceeding ten (10) days after this Option is surrendered.
4. RIGHTS OF HOLDER. Holder shall not, solely by virtue of
this Option and prior to the issuance of the Option Shares upon due exercise
thereof, be entitled to any rights of a shareholder in the Company.
5. TRANSFERABILITY. Holder hereby represents and warrants that
it is acquiring this Option and, upon the exercise thereof, the Option Shares,
for investment and not with a view to resale or distribution thereof. Holder may
not sell, assign, transfer or otherwise dispose of this Option or any Option
Shares, except in accordance with the terms
7
<PAGE> 36
of the Stock Purchase Agreement. Subject to compliance with federal and state
securities laws and with the Stock Purchase Agreement, if applicable, the Holder
may sell, assign, transfer or otherwise dispose of any Option Shares acquired
upon any exercise hereof at any time and from time to time.
6. LEGEND ON OPTION SHARES. Certificates evidencing the Option
Shares shall bear the legend set forth in Section 1.2 of the Stock Purchase
Agreement.
7. MISCELLANEOUS.
7.1 AMENDMENTS. The parties may, from time to time, enter into
written amendments, supplements or modifications hereto for the purpose of
adding any provisions to this Option or changing in any manner the rights of
either of the parties hereunder. No amendment, supplement or modification shall
be binding on either party unless made in writing and signed by a duly
authorized representative of each party.
7.2 NOTICES. All notices, requests, demands, claims, and other
communications hereunder shall be in writing and shall be delivered by certified
or registered mail (first class postage pre-paid), guaranteed overnight
delivery, or facsimile transmission, which transmission is confirmed by delivery
by certified or registered mail (first class postage pre-paid) or guaranteed
overnight delivery:
(a) if to Issuer to:
OHM Corporation
16406 U.S. Route 224 East
Findlay, Ohio 45840
Attention: General Counsel
Telecopy: (419) 424-4985
with a copy to:
Jones, Day, Reavis & Pogue
41 South High Street
1900 Huntington Center
Columbus, OH 43215
Attention: Robert J. Gilker, Esq.
Telecopy: (614) 469-4198
8
<PAGE> 37
(b) if to Investor to:
H. Wayne Huizenga
200 South Andrews Avenue
Fort Lauderdale, Florida 33301
Attention: Richard C. Rochon
Telecopy: (305) 523-0801
with a copy to:
Akerman, Senterfitt & Eidson, P.A.
24th Floor, One Brickell Square
801 Brickell Avenue
Miami, FL 33131
Attention: Stephen K. Roddenberry, Esq.
Telecopy: (305) 374-5095
(c) or, in each case, at such other address or to such other
person as may be specified in writing to the other party.
7.3 WAIVER BY CONSENT. The Holder may execute and deliver to
the Company a written instrument waiving, on such terms and conditions as the
Holder may specify in such instrument, any of the requirements of this Option.
7.4 NO IMPLIED WAIVER; RIGHTS ARE CUMULATIVE. The failure to
exercise or the delay in exercising by either party of any right, remedy, power
or privilege under this Option, shall not operate as a waiver thereof. The
single or partial exercise of any right, remedy, power or privilege under this
Option shall not preclude any other or further exercise thereof or the exercise
of any other right, remedy, power or privilege. The rights, remedies, powers and
privileges herein provided are cumulative and not exclusive of any rights,
remedies, powers and privileges provided by law.
7.5 GOVERNING LAW. This Option and rights and obligations of
the parties hereunder shall be governed by, construed and interpreted in
accordance with the laws of the State of Ohio applicable to agreements executed
by residents of that state, and fully to be performed, in that state.
7.6 SEVERABILITY. If any provision of this Option is found to
be unenforceable for any reason whatsoever, such provision shall be deemed null
and void to the extent of such unenforceability but shall be deemed separable
from and shall not invalidate any other provision of this Option.
7.7 CAPTIONS. Captions to the various paragraphs of this
Agreement are provided for convenience only and shall not be used to construe
the provisions of this Option.
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<PAGE> 38
7.8 ENTIRE AGREEMENT. This Option and such portions of the
Stock Purchase Agreement and the Second Option Agreement contemplated thereby
constitute the entire understanding of the parties with respect to the subject
matter of the Option and supersedes all prior discussions, agreements and
representations, whether oral or written, concerning the subject matter hereof
and whether or not executed by Buyer and the Company.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed and delivered by the proper and duly authorized
officers as of the day and year first above written.
/s/ H. WAYNE HUIZENGA
-----------------------------------------
H. Wayne Huizenga
OHM CORPORATION
By: /s/ RANDALL M. WALTERS
-----------------------------------------
Name: Randall M. Walters
Title: Vice President, General Counsel
and Secretary
10
<PAGE> 39
EXHIBIT "A"
[To be signed only upon exercise of Option]
To OHM Corporation:
The undersigned, the Holder of the within Option, hereby
irrevocably elects to exercise the purchase right represented by such Option
for, and to purchase thereunder, _____________ shares of the common stock, par
value $.10 per share, of OHM Corporation and herewith makes payment of
$___________ thereof or, and requests that the certificates for such shares be
issued in the name of, and be delivered to, ______________ whose address is
___________________________.
Dated:
____________________________
_______________________
(Signature must conform in all respects to name
of Holder as specified on the face of the Option)
_______________________
Address
<PAGE> 40
EXHIBIT B
================================================================================
- --------------------------------------------------------------------------------
SECOND OPTION AGREEMENT
by and between
H. WAYNE HUIZENGA
and
OHM CORPORATION
Dated as of March 28, 1995
- --------------------------------------------------------------------------------
================================================================================
<PAGE> 41
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
<S> <C>
1. GRANT OF OPTION.................................................................................... 2
1.1 Grant.................................................................................... 2
1.2 Shares To Be Issued; Reservation of Shares............................................... 2
2. ADJUSTMENTS TO OPTION RIGHTS....................................................................... 2
2.1 Stock Combinations....................................................................... 2
2.2 Reorganizations.......................................................................... 2
2.3 Adjustment Upon Changes in Capitalization................................................ 3
2.4 Sales Below Fair Market Value............................................................ 3
2.5 Notice................................................................................... 5
2.6 Fractional Interests..................................................................... 6
2.7 Effect of Alternate Securities........................................................... 7
2.8 Successive Application................................................................... 7
3. EXERCISE........................................................................................... 7
3.1 Exercise of Option....................................................................... 7
3.2 Issuance of Option Shares................................................................ 7
4. RIGHTS OF HOLDER................................................................................... 7
5. TRANSFERABILITY.................................................................................... 7
6. LEGEND ON OPTION SHARES............................................................................ 8
7. MISCELLANEOUS...................................................................................... 8
7.1 Amendments............................................................................... 8
7.2 Notices.................................................................................. 8
7.3 Waiver By Consent........................................................................ 9
7.4 No Implied Waiver; Rights Are Cumulative................................................. 9
7.5 Governing Law............................................................................ 9
7.6 Severability............................................................................. 9
7.7 Captions................................................................................. 9
7.8 Entire Agreement......................................................................... 10
</TABLE>
-i-
<PAGE> 42
THE SECURITIES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT") OR UNDER
ANY APPLICABLE STATE LAW AND MAY NOT BE TRANSFERRED, SOLD OR
OTHERWISE DISPOSED OF IN THE ABSENCE OF AN EFFECTIVE
REGISTRATION UNDER THE ACT OR AN OPINION OF COUNSEL REASONABLY
SATISFACTORY TO THE ISSUER THAT SUCH REGISTRATION IS NOT
REQUIRED UNDER THE ACT AND THE RULES AND REGULATIONS
PROMULGATED THEREUNDER OR SUCH STATE SECURITIES LAWS AND
FURTHER PROVIDED THAT SUCH TRANSFER IS EFFECTED IN ACCORDANCE
WITH THE PROVISIONS OF SECTION 5.2(b) OF THAT CERTAIN STOCK
PURCHASE AGREEMENT BY AND BETWEEN THE ISSUER AND H. WAYNE
HUIZENGA, DATED AS OF MARCH 28, 1995.
SECOND OPTION AGREEMENT
This SECOND OPTION AGREEMENT (the "Option") is being entered
into this 28th day of March, 1995, by and between OHM Corporation, an Ohio
corporation (together with its successors and permitted assigns, the "Company")
and H. WAYNE HUIZENGA, an individual resident of the State of Florida (together
with his successors and permitted assigns, the "Buyer"). Capitalized terms used
herein and not otherwise defined herein shall have the meanings ascribed to them
in the Securities Purchase Agreement (as defined below).
RECITALS
A. The Company and Buyer have entered into a Stock Purchase
Agreement dated as of the date hereof (the "Stock Purchase Agreement") pursuant
to which, among other things, the Company agreed to sell and Buyer agreed to
purchase certain shares of the Company's common stock, par value $.10 per share
(the "Common Stock").
B. Pursuant to the Stock Purchase Agreement, the Company has
agreed to grant to Buyer an option to purchase up to three hundred eighty
thousand (380,000) shares of Common Stock on the terms set forth in the Stock
Purchase Agreement and this Option.
NOW, THEREFORE, for the consideration set forth in the Stock
Purchase Agreement and other good and valuable consideration, the sufficiency
and receipt of which is hereby acknowledged, the Company agrees with Buyer as
follows:
<PAGE> 43
1. GRANT OF OPTION.
1.1 GRANT. The Company hereby grants to Buyer this Option,
exercisable as provided herein in whole or in part at any time and from time to
time during the period from the date hereof through 6:00 p.m., local time in New
York, New York, on March 27, 2000 (the "Exercise Period") to purchase an
aggregate of up to Three Hundred Eighty Thousand (380,000) shares of Common
Stock (the "Option Shares"), at an exercise price of twelve dollars ($12.00) per
share (as it may be hereinafter adjusted, the "Exercise Price"). Buyer and its
permitted successors and assigns are hereinafter referred to as "Holder."
1.2 SHARES TO BE ISSUED; RESERVATION OF SHARES. The Company
covenants and agrees that all Option Shares will, upon issuance, be duly
authorized, validly issued and outstanding, fully paid and non-assessable, and
free from all taxes, liens and charges with respect to the issuance thereof,
except as otherwise provided in the Stock Purchase Agreement. The Company
further covenants and agrees that it will from time to time take all actions
required to assure that the par value per share of the Common Stock is at all
times equal to or less than the effective Exercise Price. The Company further
covenants and agrees that, during the Exercise Period, the Company will at all
times have authorized and reserved sufficient shares of Common Stock to provide
for the exercise of this Option in full.
2. ADJUSTMENTS TO OPTION RIGHTS.
2.1 STOCK COMBINATIONS. In case the Company shall combine all
of the outstanding Common Stock proportionately into a smaller number of shares,
the Exercise Price per Option Share hereunder in effect immediately prior to
such combination shall be proportionately increased and the number of Option
Shares issuable to the Holder upon exercise of this Option shall be
proportionately decreased, as of the effective date of such combination, as
follows: (a) the number of Option Shares purchasable upon the exercise of the
Option immediately prior to the effective date of such combination, shall be
adjusted so that the holder of the Option exercised after that date shall be
entitled to receive the number and kind of Option Shares which the holder of the
Option would have owned and been entitled to receive as a result of the
combination had the Options been exercised immediately prior to that date, and
(b) the Exercise Price in effect immediately prior to such adjustment shall be
adjusted by multiplying such Exercise Price by a fraction, the numerator of
which is the aggregate number of shares of Common Stock purchasable upon
exercise of the Options immediately prior to such adjustment, and the
denominator of which is the aggregate number of shares of Common Stock
purchasable upon exercise of the Options immediately thereafter.
2.2 REORGANIZATIONS. If any of the following transactions
(each, a "Special Transaction") shall become effective: (i) a capital
reorganization or reclassification of the capital stock of the Company, (ii) a
consolidation or merger of the Company with and into another entity, or (iii) a
sale or conveyance of all or substantially all of the Company's assets, then, as
a condition of any such Special Transaction, lawful and adequate provision shall
be made whereby the Holder shall thereafter have the right to purchase and
receive, at any time after the consummation of such Special Transaction until
the expiration of the Exercise Period, upon the basis and upon the terms and
conditions specified herein, and in
2
<PAGE> 44
lieu of the Option Shares immediately theretofore issuable upon exercise of this
Option for the aggregate Exercise Price in effect immediately prior to such
consummation, such shares of stock, other securities, cash or other assets as
may be issued or payable in and pursuant to the terms of such Special
Transaction with respect to or in exchange for a number of outstanding shares of
Common Stock equal to the number of Option Shares immediately theretofore
issuable upon exercise of this Option had such Special Transaction not taken
place (pro rated in the case of any partial exercises). In connection with any
Special Transaction, appropriate provision shall be made with respect to the
rights and interests of the Holder to the end that the provisions of this Option
(including without limitation provisions for adjustment of the Exercise Price
and the number of Option Shares issuable upon the exercise of the Option), shall
thereafter be applicable, as nearly as may be, to any shares of stock, other
securities, cash or other assets thereafter deliverable upon the exercise of
this Option. The Company shall not effect any Special Transaction unless prior
to or simultaneously with the closing the successor entity (if other than the
Company), if any, resulting from such consolidation or merger or the entity
acquiring such assets shall assume by a written instrument executed and mailed
by certified mail or delivered to the Holder at the address of the Holder
appearing on the books of the Company, the obligation of the Company or such
successor corporation to deliver to such Holder such shares of stock,
securities, cash or other assets as, in accordance with the foregoing
provisions, such Holder has rights to purchase.
2.3 ADJUSTMENT UPON CHANGES IN CAPITALIZATION. In the event of
any change in the Common Stock by reason of stock dividends, stock splits,
recapitalizations or reclassifications, the type and number of Option Shares
issuable upon exercise of this Option, and the Exercise Price, as the case may
be, shall be adjusted as follows: (a) the number of Option Shares purchasable
upon the exercise of the Option immediately prior to the record date for such
dividend or distribution, or the effective date of such recapitalization or
reclassification shall be adjusted so that the holder of the Option exercised
after that date shall be entitled to receive the number and kind of Option
Shares which the holder of the Option would have owned and been entitled to
receive as a result of the dividend, distribution, recapitalization or
reclassification had the Options been exercised immediately prior to that date,
and (b) the Exercise Price in effect immediately prior to such adjustment shall
be adjusted by multiplying such Exercise Price by a fraction, the numerator of
which is the aggregate number of shares of Common Stock purchasable upon
exercise of the Options immediately prior to such adjustment, and the
denominator of which is the aggregate number of shares of Common Stock
purchasable upon exercise of the Options immediately thereafter. No such
adjustment shall be made on account of any dividend payable other than in
securities of the Company.
2.4 SALES BELOW FAIR MARKET VALUE. (a) In the event the
Company shall sell and issue shares of Common Stock, or rights, options,
warrants or convertible or exchangeable securities containing the right to
subscribe for or purchase shares of Common Stock (excluding (i) shares, rights,
options, warrants or convertible or exchangeable securities issued in any of the
transactions described in Sections 2.2 or 2.3 above and (ii) the Option and any
shares issued on exercise of the Option) at a price per share of Common Stock
(determined in the case of such rights, options, warrants or convertible or
exchangeable securities by dividing (X) the total amount receivable by the
Company in
3
<PAGE> 45
consideration of the sale and issuance of such rights, options, warrants or
convertible or exchangeable securities, plus the total consideration payable to
the Company upon exercise, conversion or exchange thereof by (Y) the total
number of shares of Common Stock covered by such rights, options, warrants or
convertible or exchangeable securities) lower than the Current Market Price on
the date the Company fixes the offering price of such shares, rights, options,
warrants or convertible or exchangeable securities, then the Exercise Price
shall be adjusted so that it shall equal the price determined by multiplying the
Exercise Price in effect immediately prior thereto by a fraction, (i) the
numerator of which shall be the sum of (A) the number of shares of Common Stock
outstanding immediately prior to such sale and issuance plus (B) the number of
shares of Common Stock which the aggregate consideration received (determined as
provided below) for such sale or issuance would purchase at such Current Market
Price per share, and (ii) the denominator of which shall be the total number of
shares of Common Stock outstanding immediately after such sale and issuance. For
the purposes of such adjustment, the shares of Common Stock which the holder of
any such rights, options, warrants or convertible or exchangeable securities
shall be entitled to subscribe for or purchase shall be deemed to be issued and
outstanding as of the date of such sale and issuance and the consideration
received by the Company therefor shall be deemed to be the consideration
received by the Company for such rights, options, warrants or convertible or
exchangeable securities, plus the consideration or premium stated in such
rights, options, warrants or convertible or exchangeable securities to be paid
for the shares of Common Stock covered thereby. In case the Company shall sell
and issue rights, options, warrants or convertible or exchangeable securities
containing the right to subscribe for or purchase shares of Common Stock
together with one or more other securities as part of a unit at a price per
unit, then in determining the "price per share of Common Stock" and the
"consideration received by the Company" for purposes of the first sentence of
this Section 2.4, the Board of Directors of the Company shall determine, in good
faith, the fair value of the rights, options, warrants or convertible or
exchangeable securities then being sold as part of such unit, and such
determination, in the absence of fraud or bad faith, shall be binding upon all
holders of the Option.
(b) For the purpose of any computation under this Section 2.4, the
"Current Market Price" at any date (the "Computation Date") shall be deemed to
be the average of the daily closing prices of the Common Stock for twenty (20)
consecutive New York Stock Exchange trading days ending the second New York
Stock Exchange trading day before such date; provided, however, that if there
shall have occurred prior to the Computation Date any event described in Section
2.2 or 2.3 which shall have become effective with respect to market transactions
at any time (the "Market-Effect Date") on or after the beginning of such 20-day
period, the closing price for each trading day preceding the Market-Effect Date
shall be adjusted, for purposes of calculating such average, by multiplying such
closing price by a fraction the numerator of which is the Exercise Price as in
effect immediately prior to the Computation Date and the denominator of which is
the Exercise Price as in effect immediately prior to the Market-Effect Date, it
being understood that the purpose of this proviso is to ensure that the effect
of such event on the market price of the Common Stock shall, as nearly as
possible, be eliminated in order that the distortion in the calculation of the
Current Market Price may be minimized. The "closing price" for any date shall be
the last reported sale price or, in case no such reported sale takes place on
such date, the average of
4
<PAGE> 46
the last reported bid and asked prices on such day, in either case on the
principal national securities exchange on which the Common Stock is admitted to
trading or listed if that is the principal market for the Common Stock or if not
listed or admitted to trading on any national securities exchange or if such
national securities exchange is not the principal market for the Common Stock,
the closing bid price as reported by the National Association of Securities
Dealers Automated Quotation System or its successor, if any, or such other
generally accepted source of publicly reported bid and asked quotations as the
Company may reasonably designate. If the price of the Common Stock is not so
reported or the Common Stock is not publicly traded, the Current Market Price
per share as of any Computation Date shall be determined by the Board of
Directors in good faith as it considers appropriate.
(c) All calculations under this Section 2.4 shall be made to the
nearest one - hundredth of a cent.
(d) For the purposes of all calculations under this Section 2.4, shares
of Common Stock or other securities held in the treasury of the Company shall
not be deemed to be outstanding, and the sale or other disposition of any shares
of Common Stock or other securities held in the treasury of the Company shall be
deemed an issuance thereof.
(e) No adjustment in the Exercise Price in accordance with the
provisions of Section 2.4 hereof need be made if such adjustment would amount to
a change in such Exercise Price of less than $.001; provided, however, that the
amount by which any adjustment is not made by reason of the provisions of this
Section 2.4 shall be carried forward and taken into account at the time of any
subsequent adjustment in the Exercise Price.
No adjustment need be made in connection with the issuance of any
shares of Common Stock or options, warrants or convertible or exchangeable
securities (i) pursuant to any employee or director stock option, stock purchase
stock bonus plan or other employee or director benefit plan, (ii) in a bona fide
public offering pursuant to a firm commitment underwriting, or (iii) in
connection with mergers, acquisitions, consolidations, exchange offers, purchase
of assets or similar transactions or other transactions in which the
consideration for the issuance of Common Stock consists of property other than
cash.
(f) Upon each adjustment of the Exercise Price pursuant to Section 2.4
hereof, the Option shall thereupon evidence the right to purchase that number of
shares of Common Stock (calculated to the nearest hundredth of a share) obtained
by multiplying the number of shares of Common Stock purchasable immediately
prior to such adjustment upon exercise of the Option by the Exercise Price in
effect immediately prior to such adjustment and dividing the product so obtained
by the Exercise Price in effect immediately after such adjustment. The
adjustment pursuant to this Section 2.4 to the number of shares of Common Stock
purchasable upon exercise of an Option shall be made each time an adjustment of
the Exercise Price is made pursuant to Section 2.4 hereof.
2.5 NOTICE. Whenever this Option or the number of Option
Shares issuable hereunder is to be adjusted as provided herein or a dividend or
distribution (in cash, stock or
5
<PAGE> 47
otherwise and including, without limitation, any liquidating distributions) is
to be declared by the Company, or a definitive agreement with respect to a
Special Transaction has been entered into, the Company shall forthwith cause to
be sent to the Holder at the last address of the Holder shown on the books of
the Company, by first-class mail, postage prepaid, at least ten (10) days prior
to the record date specified in (A) below or at least twenty (20) days before
the date specified in (B) below, a notice stating in reasonable detail the
relevant facts and any resulting adjustments and the calculation thereof, if
applicable, and stating (if applicable):
(A) the date to be used to determine (i) which
holders of Common
Stock will be entitled to receive notice of such dividend, distribution,
subdivision or combination (the "Record Date"), and (ii) the date as of which
such dividend distribution, subdivision or combination shall be made; or, if a
record is not to be taken, the date as of which the holders of Common Stock of
record to be entitled to such dividend, distribution, subdivision or combination
are to be determined (provided, that in the event the Company institutes a
policy of declaring cash dividends on a periodic basis, the Company need only
provide the relevant information called for in this clause (A) with respect to
the first cash dividend payment to be made pursuant to such policy and
thereafter provide only notice of any changes in the amount or the frequency of
any subsequent dividend payments), or
(B) the date on which a Special Transaction is
expected to become effective, and the date as of which it is expected that
holders of Common Stock of record shall be entitled to exchange their shares of
Common Stock for securities or other property deliverable upon consummation of
the Special Transaction (the "Exchange Date").
Upon delivery to Holder of a notice contemplated by
either of clause (A) or clause (B) above, during the Holding Period, as such
term is defined in Section 6.1 of the Stock Purchase Agreement, Holder shall be
deemed a stockholder as of the Record Date or Exchange Date, as the case may be,
despite any delay in the exercise of the Option resulting from holding or
waiting periods required by any Government Authority, as such term is defined in
Section 6.1 of the Stock Purchase Agreement, including, but not limited to, the
holding or waiting period applicable under the Hart-Scott-Rodino Antitrust
Improvements Act of 1976, as amended; provided that (i) upon receipt of the
notice referenced above and prior to the Record Date or the Exchange Date, as
applicable, Holder shall deliver written confirmation to the Company stating
that Holder intends to exercise all or a portion of the Option, upon expiration
of the applicable holding or waiting period, and (ii) Holder, in fact, exercises
such Option within 10 days of the expiration of the applicable holding or
waiting period.
2.6 FRACTIONAL INTERESTS. The Company shall not be required to
issue fractions of shares of Common Stock on the exercise of this Option. If any
fraction of a share of Common Stock would, except for the provisions of this
Section 2.6, be issuable upon the exercise of this Option, the Company shall,
upon such issuance, purchase such fraction for an amount in cash equal to the
current value of such fraction, computed on the basis of the last reported close
price of the Common Stock on the New York Stock Exchange ("NYSE") on the last
business day prior to the date of exercise upon which such a sale shall
6
<PAGE> 48
have been effected, or, if the Common Stock is not so listed on the NYSE, as the
Board of Directors of the Issuer may in good faith determine.
2.7 EFFECT OF ALTERNATE SECURITIES. If at any time, as a
result of an adjustment made pursuant to this Section 2, the holder of the
Options shall thereafter become entitled to receive any securities of the
Company other than shares of Common Stock, then the number of such other
securities receivable upon exercise of an Option shall be subject to adjustment
from time to time on terms as nearly equivalent as practicable to the provisions
with respect to shares of Common Stock contained in this Section 2.
2.8 SUCCESSIVE APPLICATION. The provisions of this Section 2
shall similarly apply to successive events covered by this Section.
3. EXERCISE.
3.1 EXERCISE OF OPTION. (a) The Holder may exercise this
Option by (i) surrendering this Option, with the form of exercise notice
attached hereto as Exhibit "A" duly executed by Holder, and (ii) making payment
to the Company of the aggregate Exercise Price for the applicable Option Shares
in cash, by certified check or bank check or by wire transfer to an account
designated by the Company. Upon any partial exercise of this Option, the
Company, at its expense, shall forthwith issue to the Holder for its surrendered
option a replacement Option identical in all respects to this Option, except
that the number of Option Shares shall be reduced accordingly.
(b) Record Date for ownership of Option Shares. Each person in whose
name any Option Share certificate is issued upon exercise of the Options shall
for all purposes been deemed to have become the holder of record of the Option
Shares for which such Options were exercised on, and such Option Share
certificate shall be dated the date upon which the Option exercise notice was
duly surrendered and payment of the Exercise Price was tendered to the Company.
3.2 ISSUANCE OF OPTION SHARES. The Option Shares purchased
shall be issued to the Holder exercising this Option as of the close of business
on the date on which all actions and payments required to be taken or made by
Holder, pursuant to Section 3.1, shall have been so taken or made. Certificates
for the Option Shares so purchased shall be delivered to the Holder within a
reasonable time, not exceeding ten (10) days after this Option is surrendered.
4. RIGHTS OF HOLDER. Holder shall not, solely by virtue of
this Option and prior to the issuance of the Option Shares upon due exercise
thereof, be entitled to any rights of a shareholder in the Company.
5. TRANSFERABILITY. Holder hereby represents and warrants that
it is acquiring this Option and, upon the exercise thereof, the Option Shares,
for investment and not with a view to resale or distribution thereof. Holder may
not sell, assign, transfer or otherwise dispose of this Option or any Option
Shares, except in accordance with the terms
7
<PAGE> 49
of the Stock Purchase Agreement. Subject to compliance with federal and state
securities laws and with the Stock Purchase Agreement, if applicable, the Holder
may sell, assign, transfer or otherwise dispose of any Option Shares acquired
upon any exercise hereof at any time and from time to time.
6. LEGEND ON OPTION SHARES. Certificates evidencing the Option
Shares shall bear the legend set forth in Section 1.2 of the Stock Purchase
Agreement.
7. MISCELLANEOUS.
7.1 AMENDMENTS. The parties may, from time to time, enter into
written amendments, supplements or modifications hereto for the purpose of
adding any provisions to this Option or changing in any manner the rights of
either of the parties hereunder. No amendment, supplement or modification shall
be binding on either party unless made in writing and signed by a duly
authorized representative of each party.
7.2 NOTICES. All notices, requests, demands, claims, and other
communications hereunder shall be in writing and shall be delivered by certified
or registered mail (first class postage pre-paid), guaranteed overnight
delivery, or facsimile transmission, which transmission is confirmed by delivery
by certified or registered mail (first class postage pre-paid) or guaranteed
overnight delivery:
(a) if to Issuer to:
OHM Corporation
16406 U.S. Route 224 East
Findlay, Ohio 45840
Attention: General Counsel
Telecopy: (419) 424-4985
with a copy to:
Jones, Day, Reavis & Pogue
41 South High Street
1900 Huntington Center
Columbus, OH 43215
Attention: Robert J. Gilker, Esq.
Telecopy: (614) 469-4198
8
<PAGE> 50
(b) if to Investor to:
H. Wayne Huizenga
200 South Andrews Avenue
Fort Lauderdale, Florida 33301
Attention: Richard C. Rochon
Telecopy: (305) 523-0801
with a copy to:
Akerman, Senterfitt & Eidson, P.A.
24th Floor, One Brickell Square
801 Brickell Avenue
Miami, FL 33131
Attention: Stephen K. Roddenberry, Esq.
Telecopy: (305) 374-5095
(c) or, in each case, at such other address or to such other
person as may be specified in writing to the other party.
7.3 WAIVER BY CONSENT. The Holder may execute and deliver to
the Company a written instrument waiving, on such terms and conditions as the
Holder may specify in such instrument, any of the requirements of this Option.
7.4 NO IMPLIED WAIVER; RIGHTS ARE CUMULATIVE. The failure to
exercise or the delay in exercising by either party of any right, remedy, power
or privilege under this Option, shall not operate as a waiver thereof. The
single or partial exercise of any right, remedy, power or privilege under this
Option shall not preclude any other or further exercise thereof or the exercise
of any other right, remedy, power or privilege. The rights, remedies, powers and
privileges herein provided are cumulative and not exclusive of any rights,
remedies, powers and privileges provided by law.
7.5 GOVERNING LAW. This Option and rights and obligations of
the parties hereunder shall be governed by, construed and interpreted in
accordance with the laws of the State of Ohio applicable to agreements executed
by residents of that state, and fully to be performed, in that state.
7.6 SEVERABILITY. If any provision of this Option is found to
be unenforceable for any reason whatsoever, such provision shall be deemed null
and void to the extent of such unenforceability but shall be deemed separable
from and shall not invalidate any other provision of this Option.
7.7 CAPTIONS. Captions to the various paragraphs of this
Agreement are provided for convenience only and shall not be used to construe
the provisions of this Option.
9
<PAGE> 51
7.8 ENTIRE AGREEMENT. This Option and such portions of the
Stock Purchase Agreement and the First Option Agreement contemplated thereby
constitute the entire understanding of the parties with respect to the subject
matter of the Option and supersedes all prior discussions, agreements and
representations, whether oral or written, concerning the subject matter hereof
and whether or not executed by Buyer and the Company.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed and delivered by the proper and duly authorized
officers as of the day and year first above written.
/s/ H. WAYNE HUIZENGA
----------------------------------------
H. Wayne Huizenga
OHM CORPORATION
By: /s/ RANDALL M. WALTERS
----------------------------------------
Name: Randall M. Walters
Title: Vice President, General Counsel
and Secretary
10
<PAGE> 52
EXHIBIT "A"
[To be signed only upon exercise of Option]
To OHM Corporation:
The undersigned, the Holder of the within Option, hereby
irrevocably elects to exercise the purchase right represented by such Option
for, and to purchase thereunder, _____________ shares of the common stock, par
value $.10 per share, of OHM Corporation and herewith makes payment of
$___________ thereof or, and requests that the certificates for such shares be
issued in the name of, and be delivered to, ______________ whose address is
___________________________.
Dated:
____________________________
_______________________
(Signature must conform in all respects to name
of Holder as specified on the face of the Option)
_______________________
Address
<PAGE> 1
EXHIBIT 11
<TABLE>
Statement Re Computation of Per Share Earnings
OHM CORPORATION
COMPUTATION OF PER SHARE EARNINGS
(In Thousands, Except Per Share Data)
<CAPTION>
Three Months Ended
March 31,
-------------------------
1995 1994
----------- -----------
<S> <C> <C>
PRIMARY:
Average Shares Outstanding 15,681 15,539
Net effect of dilutive stock options and warrants--
based on the treasury stock method 24 663
------ ------
Total 15,705 16,202
====== ======
Net Income $ 1,287 $ 805
====== ======
Per Share Amount $ 0.08 $ 0.05
====== ======
FULLY DILUTED: (1)
Average Shares Outstanding 15,681 15,539
Net effect of dilutive stock options and warrants--
based on the treasury stock method 250 733
------ ------
Total 15,931 16,272
====== ======
Net Income $ 1,287 $ 805
====== ======
Per Share Amount $ 0.08 $ 0.05
====== ======
<FN>
(1) Fully dilutive effect of stock options and warrants on per share amounts
for the three months ended March 31, 1995 and 1994, has not been presented
in the statements of income since any reduction of less than 3% in the
aggregate need not be considered as dilution.
</TABLE>
<PAGE> 1
EXHIBIT 15
Letter Re Unaudited Financial Information
Board of Directors and Stockholders
OHM Corporation
We are aware of the incorporation by reference into the Registration Statements
(Form S-8 No. 33-24953 and Form S-8 No. 33-28025) of OHM Corporation of our
report dated May 4, 1995, relating to the unaudited consolidated interim
financial statements of OHM Corporation which are included in its Form 10-Q for
the quarter ended March 31, 1995.
Pursuant to Rule 436(c) of the Securities Act of 1933, our report is not a part
of the registration statement prepared or certified by accountants within the
meaning of Section 7 or 11 of the Securities Act of 1933.
Ernst & Young LLP
Columbus, Ohio
May 4, 1995
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM THE
UNAUDITED CONSOLIDATED BALANCE SHEET AND THE UNAUDITED CONSOLIDATED STATEMENTS
OF INCOME AND IS QUALIFIED IN ITS ENTIRETY BY REFERENCE TO SUCH FINANCIAL
STATEMENTS.
</LEGEND>
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> 3-MOS
<FISCAL-YEAR-END> DEC-31-1995
<PERIOD-START> JAN-01-1995
<PERIOD-END> MAR-31-1995
<CASH> 2,287
<SECURITIES> 0
<RECEIVABLES> 178,396
<ALLOWANCES> 26,063
<INVENTORY> 10,670
<CURRENT-ASSETS> 181,787
<PP&E> 97,721
<DEPRECIATION> 40,050
<TOTAL-ASSETS> 273,735
<CURRENT-LIABILITIES> 60,529
<BONDS> 121,497
<COMMON> 1,684
0
0
<OTHER-SE> 89,079
<TOTAL-LIABILITY-AND-EQUITY> 273,735
<SALES> 0
<TOTAL-REVENUES> 80,217
<CGS> 0
<TOTAL-COSTS> 67,307
<OTHER-EXPENSES> 7,620
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 3,239
<INCOME-PRETAX> 2,051
<INCOME-TAX> 764
<INCOME-CONTINUING> 1,287
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 1,287
<EPS-PRIMARY> 0.08
<EPS-DILUTED> 0.08
</TABLE>
