<PAGE> 1
SCHEDULE 14A
(RULE 14a-101)
SCHEDULE 14A INFORMATION
PROXY STATEMENT PURSUANT TO SECTION 14(a) OF THE SECURITIES
EXCHANGE ACT OF 1934
Filed by the Registrant [X]
Filed by a Party other than the Registrant [ ]
Check the appropriate box:
[X] Preliminary Proxy Statement [ ] Confidential, for Use of the
Commission Only (as permitted by
Rule 14a-6(e)(2))
[ ] Definitive Proxy Statement
[ ] Definitive Additional Materials
[ ] Soliciting Material Pursuant to Rule 14a-11(c) or Rule 14a-12
GREYHOUND LINES, INC.
- --------------------------------------------------------------------------------
(Name of Registrant as specified in its Charter and Person Filing Proxy
Statement)
Payment of filing fee (Check the appropriate box):
[ ] No fee required.
[X] Fee computed on table below per Exchange Act Rules 14a-6(i)(l) and
0-11.
(1) Title of each class of securities to which transaction applies:
Common Stock, $.01 par value per share, of Greyhound Lines, Inc. ("Greyhound
Common Stock")
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(2) Aggregate number of securities to which transactions applies:
75,527,063 shares of Greyhound Common Stock (assuming, solely for purposes of
calculating the filing fee, that (i) all currently outstanding shares of 8 1/2%
Convertible Exchangeable Preferred Stock, par value $.01 per share, of Greyhound
Lines, Inc. are converted into shares of Greyhound Common Stock prior to the
completion of the transaction, and (ii) outstanding options to purchase
Greyhound Common Stock that may become exercisable prior to the completion of
the transaction are exercisable prior to the completion of the transaction).
- --------------------------------------------------------------------------------
(3) Per unit price or other underlying value of transaction computed
pursuant to Exchange Act Rule 0-11:
$6.50
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(4) Proposed maximum aggregate value of transaction:
$490,925,910
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(5) Total fee paid:
$98,186
- --------------------------------------------------------------------------------
[ ] Fee paid previously with preliminary materials.
[X] Check box if any part of the fee is offset as provided by Exchange Act
Rule 0-11(a)(2) and identify the filing for which the offsetting fee was paid
previously. Identify the previous filing by registration statement number, or
the form or schedule and the date of its filing.
(1) Amount Previously Paid:
$83,987
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(2) Form, Schedule or Registration Statement No.:
333-9632
- --------------------------------------------------------------------------------
(3) Filing Party:
Laidlaw Inc.
- --------------------------------------------------------------------------------
(4) Date Filed:
November 13, 1998
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[LOGO] Greyhound Lines, Inc.
P.O. Box 660362
Dallas, Texas 75266-0362
</TABLE>
, 1998
Dear Stockholder:
I cordially invite you to attend a very important special meeting of the
stockholders of Greyhound Lines, Inc. ("Greyhound") to be held on ,
, 199 , at : .m., local time, at
, in , Texas.
At the special meeting you will be asked to consider and vote upon a
proposal to adopt a merger agreement. If the merger is completed, Greyhound will
be a subsidiary of Laidlaw Inc. ("Laidlaw").
Upon successful completion of the merger, the holders of Greyhound common
stock will receive $6.50 per share. The merger consideration is payable in cash.
Laidlaw, however, has the option to pay up to $4.00 of the merger consideration
with Laidlaw common shares. The value of the Laidlaw common shares will be
determined as described in the accompanying Proxy Statement/Prospectus. Laidlaw
will publicly announce (by press release) whether or not it intends to pay a
portion of the merger consideration with Laidlaw common shares prior to the
fifth trading day before the date of the special meeting ( , 199 ,
unless the special meeting is postponed).
The Greyhound preferred stock will remain outstanding after the merger.
However, the Greyhound preferred stock will no longer be convertible into shares
of Greyhound common stock after the merger. Instead, the Greyhound preferred
stock will be convertible into the same merger consideration paid to the holders
of Greyhound common stock multiplied by the conversion ratio applicable to the
Greyhound preferred stock. Each share of Greyhound preferred stock is currently
convertible into approximately 5.128 shares of Greyhound common stock.
The Board of Directors of Greyhound has, by the unanimous vote of the
directors present, determined that the merger is fair to and in the best
interests of Greyhound and its stockholders. ACCORDINGLY, THE BOARD HAS APPROVED
THE MERGER AGREEMENT AND RECOMMENDS THAT YOU VOTE "FOR" THE ADOPTION OF THE
MERGER AGREEMENT AT THE SPECIAL MEETING.
In light of the importance of the proposed merger, we urge you to attend
the special meeting in person or participate by proxy. Whether or not you plan
to attend, after carefully reading and considering the accompanying materials,
please vote your shares as soon as possible. Your voting materials contain
detailed information on how to vote.
The adoption of this merger agreement requires the approval of the holders
of a majority of the outstanding shares of Greyhound common stock and preferred
stock (voting together as one class). Not voting is the same as a vote against
the merger. Regardless of the number of shares you own, your vote is important.
Sincerely,
/s/ CRAIG R. LENTZSCH
Craig R. Lentzsch
President and Chief Executive Officer
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[LOGO] Greyhound Lines, Inc.
P.O. Box 660362
Dallas, Texas 75266-0362
</TABLE>
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NOTICE OF SPECIAL MEETING OF STOCKHOLDERS
TO BE HELD ON , 199
------------------
A special meeting of the holders of common stock and preferred stock of
Greyhound Lines, Inc., a Delaware corporation ("Greyhound"), will be held on
, , 199 , at : .m., local time, at , in
, Texas. The special meeting has been called for the purpose of
considering and voting on a proposal to adopt the Amended and Restated Agreement
and Plan of Merger among Greyhound, Laidlaw Inc. ("Laidlaw") and Laidlaw Transit
Acquisition Corp. ("Laidlaw Acquisition"), whereby Laidlaw Acquisition will be
merged into Greyhound. Following the Merger, Greyhound will be a subsidiary of
Laidlaw.
The proposed merger is described in detail in the accompanying Proxy
Statement/Prospectus. A copy of the merger agreement is attached as Appendix A
to the Proxy Statement/Prospectus.
Greyhound stockholders of record at the close of business on
, 1998 are entitled to notice of, and to vote at, the special meeting
and any adjournment or postponement of the special meeting.
Greyhound stockholders who do not vote in favor of adopting the merger
agreement and who otherwise comply with the requirements of Delaware law will be
entitled to appraisal rights. A summary of the applicable Delaware law
provision, including the requirements a Greyhound stockholder must follow in
order to exercise his or her appraisal rights, is contained in the accompanying
Proxy Statement/Prospectus. A copy of the applicable Delaware law provision is
attached as Appendix C to the Proxy Statement/Prospectus.
Please complete, date, sign and promptly mail the enclosed proxy card in
the enclosed postage-paid envelope to make sure that your vote will be counted
and your shares are represented at the special meeting. Record holders of
Greyhound common stock and preferred stock may also vote their shares by using a
toll free telephone number as described in the voting materials. If you attend
the special meeting, you may vote your shares in person even if you have
previously sent in your proxy card or voted by telephone. You may revoke your
proxy in the manner described in the Proxy Statement/Prospectus at any time
before it is voted at the special meeting. Signed proxies with no instructions
indicated will be voted "FOR" the adoption of the merger agreement.
By Order of the Board of Directors,
/s/ MARK E. SOUTHERST
Mark E. Southerst
Secretary
Dallas, Texas
, 1998
<PAGE> 4
SUBJECT TO COMPLETION, DATED NOVEMBER 13, 1998
PROXY STATEMENT/PROSPECTUS
GREYHOUND LINES, INC.
PROXY STATEMENT
FOR SPECIAL MEETING OF STOCKHOLDERS
TO BE HELD ON , 199
------------------
PROSPECTUS OF LAIDLAW INC.
This Proxy Statement/Prospectus is being furnished to the stockholders of
Greyhound Lines, Inc. ("Greyhound"), in connection with the solicitation of
proxies by the Board of Directors of Greyhound for use at a special meeting of
Greyhound stockholders. The special meeting will be held on ,
, 199 starting at : .m., local time, at , in
, Texas. This Proxy Statement/Prospectus, the Notice of Special
Meeting of Stockholders and the proxy card will be mailed to the Greyhound
stockholders on or about , 1998.
At the special meeting, the holders of record of Greyhound common stock and
Greyhound preferred stock as of the close of business on , 1998
will consider and vote upon a proposal to adopt the Amended and Restated
Agreement and Plan of Merger by and among Greyhound, Laidlaw Inc. ("Laidlaw")
and Laidlaw Transit Acquisition Corp. ("Laidlaw Acquisition"), whereby Laidlaw
Acquisition will be merged into Greyhound with Greyhound as the surviving
corporation. Following the merger, Greyhound will be a subsidiary of Laidlaw.
In the merger, each outstanding share of Greyhound common stock will be
converted into the right to receive $6.50. The merger consideration is payable
in cash; however, Laidlaw has the option to pay up to $4.00 of the merger
consideration with Laidlaw common shares. The value of the Laidlaw common shares
will be determined as described in "The Merger -- The Merger Agreement -- Merger
Consideration" in this Proxy Statement/Prospectus. Laidlaw will publicly
announce (by press release) whether or not it intends to pay any portion of the
merger consideration with Laidlaw common shares prior to the fifth trading day
before the date of the special meeting ( , 199 , unless the special
meeting is postponed).
In the merger, each outstanding share of Greyhound preferred stock will remain
outstanding, unless converted into shares of Greyhound common stock prior to
completion of the merger. However, Greyhound preferred stock will no longer be
convertible into shares of Greyhound common stock after the merger. Instead, the
Greyhound preferred stock will be convertible into the same merger consideration
paid to the holders of Greyhound common stock multiplied by the conversion ratio
applicable to the Greyhound preferred stock. Each share of Greyhound preferred
stock is currently convertible into approximately 5.128 shares of Greyhound
common stock.
This Proxy Statement/Prospectus is also the prospectus of Laidlaw with respect
to the issuance of the Laidlaw common shares in the merger. All information
concerning Laidlaw and Laidlaw Acquisition contained in this Proxy Statement/
Prospectus has been provided by Laidlaw, and all information concerning
Greyhound contained in this Proxy Statement/Prospectus has been provided by
Greyhound.
Laidlaw common shares are traded on the New York Stock Exchange under the symbol
"LDW" and on The Toronto Stock Exchange and the Montreal Exchange under the
symbol "LDM." Greyhound common stock is traded on the American Stock Exchange
under the symbol "BUS."
SEE "RISK FACTORS" BEGINNING ON PAGE 18 OF THIS PROXY STATEMENT/PROSPECTUS FOR A
DISCUSSION OF CERTAIN RISKS OF OWNERSHIP OF LAIDLAW COMMON SHARES AND OTHER
MATTERS THAT GREYHOUND STOCKHOLDERS SHOULD CONSIDER IN DETERMINING HOW TO VOTE
ON THE PROPOSED MERGER.
NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES
COMMISSION HAS APPROVED OR DISAPPROVED OF THESE SECURITIES OR DETERMINED IF THIS
PROXY STATEMENT/PROSPECTUS IS ACCURATE OR COMPLETE. ANY REPRESENTATION TO THE
CONTRARY IS A CRIMINAL OFFENSE.
The date of this Proxy Statement/Prospectus is , 199 .
THE INFORMATION IN THIS PROXY STATEMENT/PROSPECTUS IS NOT COMPLETE AND MAY BE
CHANGED. LAIDLAW MAY NOT ISSUE THESE SECURITIES UNTIL THE REGISTRATION STATEMENT
FILED WITH THE SECURITIES AND EXCHANGE COMMISSION IS EFFECTIVE. THIS PROXY
STATEMENT/PROSPECTUS IS NOT AN OFFER TO SELL THESE SECURITIES AND LAIDLAW IS NOT
SOLICITING AN OFFER TO BUY THESE SECURITIES IN ANY STATE WHERE THE OFFER OR SALE
IS NOT PERMITTED.
<PAGE> 5
TABLE OF CONTENTS
<TABLE>
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PAGE
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QUESTIONS AND ANSWERS ABOUT THE MERGER...................... 1
SUMMARY..................................................... 5
The Parties............................................... 5
The Special Meeting....................................... 6
Recommendation of the Greyhound Board..................... 6
Opinion of Greyhound's Financial Advisor.................. 7
The Merger................................................ 7
Selected Financial Data................................... 11
Summary Unaudited Pro Forma Combined Financial
Information............................................. 13
Selected Per Share Financial Information.................. 14
Market Price and Dividend Information..................... 15
Risk Factors.............................................. 16
Certain Litigation........................................ 17
RISK FACTORS................................................ 18
Risk of Integration of the Combined Companies; Significant
Uncertainties........................................... 18
Uncertainty Regarding Merger Consideration................ 18
Risks Associated with Acquisition Strategy................ 18
Exchange Rate Fluctuations; Canadian Tax Obligations...... 19
Governmental Regulation................................... 19
Tax Litigation............................................ 20
Year 2000 Compliance...................................... 20
Competition............................................... 21
Market Risk............................................... 21
THE SPECIAL MEETING......................................... 22
General................................................... 22
Voting at the Special Meeting............................. 22
Proxies; Revocation....................................... 23
Adjournments.............................................. 23
THE PARTIES................................................. 24
Greyhound................................................. 24
Laidlaw................................................... 24
THE MERGER.................................................. 26
Background of the Merger.................................. 26
Greyhound's Reasons for the Merger........................ 31
Opinion of Greyhound's Financial Advisor.................. 33
Laidlaw's Reasons for the Merger.......................... 37
The Merger Agreement...................................... 38
Stock Exchange Listing.................................... 44
Delisting of Greyhound Common Stock....................... 44
Certain Federal Income Tax Consequences................... 44
Governmental Approvals.................................... 46
Interests of Certain Persons in the Merger................ 47
Appraisal Rights.......................................... 51
Accounting Treatment...................................... 53
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i
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Amendment to Greyhound Rights Agreement................... 53
Certain Litigation........................................ 53
UNAUDITED PRO FORMA CONDENSED COMBINED FINANCIAL
INFORMATION............................................... 54
NOTES TO UNAUDITED PRO FORMA CONDENSED COMBINED FINANCIAL
INFORMATION............................................... 57
DESCRIPTION OF LAIDLAW CAPITAL STOCK........................ 62
Authorized Capital Shares................................. 62
Common Shares............................................. 62
Preference Shares......................................... 62
RESTRICTIONS ON RESALES OF LAIDLAW COMMON SHARES BY
AFFILIATES................................................ 63
COMPARISON OF RIGHTS OF HOLDERS OF GREYHOUND COMMON STOCK
AND LAIDLAW COMMON SHARES................................. 63
Voting Rights Generally................................... 64
Vote on Extraordinary Corporate Transactions.............. 64
Dividends and Distributions............................... 64
Amendment to Charter...................................... 65
Amendment to Bylaws....................................... 65
Interested Stockholder Transactions....................... 66
Appraisal and Dissent Rights.............................. 66
Director Qualifications................................... 67
Election of Directors..................................... 67
Removal of Directors...................................... 67
Vacancy on Board of Directors............................. 68
Directors and Officer Indemnification..................... 68
Director Exculpation...................................... 70
Special Meeting of Shareholders........................... 70
Quorum Requirements....................................... 71
Rights Plan............................................... 71
Inspection of Books and Records........................... 71
Stockholder Consent in Lieu of Meeting.................... 71
LEGAL MATTERS............................................... 72
EXPERTS..................................................... 72
AVAILABLE INFORMATION....................................... 72
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE............. 73
FORWARD-LOOKING INFORMATION................................. 73
DISCLAIMER.................................................. 74
APPENDIX A -- Amended and Restated Agreement and Plan of
Merger.................................................... A-1
APPENDIX B -- Opinion of Bear Stearns & Co. Inc............. B-1
APPENDIX C -- Section 262 of the Delaware General
Corporation Law........................................... C-1
</TABLE>
ii
<PAGE> 7
QUESTIONS AND ANSWERS ABOUT THE MERGER
The following questions and answers are intended to address briefly some
commonly asked questions regarding the merger. These questions and answers may
not address all questions that may be important to you as a Greyhound
stockholder. Please refer to the more detailed information contained elsewhere
in this Proxy Statement/Prospectus, the Appendices and the documents referred to
or incorporated by reference.
Q: IF THE MERGER IS COMPLETED, WHAT WILL I RECEIVE FOR MY GREYHOUND COMMON
STOCK?
A: You will receive $6.50 for each share of Greyhound common stock you own.
The merger consideration is payable in cash. Laidlaw, however, has the
option to pay up to $4.00 of the consideration with Laidlaw common shares.
The value of the Laidlaw common shares will be determined as described
below.
Q: HOW WILL THE MERGER AFFECT MY GREYHOUND PREFERRED STOCK?
A: You may continue to own your shares of Greyhound preferred stock after the
merger. However, your shares of Greyhound preferred stock will no longer be
convertible into shares of Greyhound common stock after the merger.
Instead, your shares of Greyhound preferred stock will be convertible into
the same merger consideration paid to the holders of Greyhound common stock
multiplied by the conversion ratio applicable to the Greyhound preferred
stock. Each share of Greyhound preferred stock is currently convertible
into approximately 5.128 shares of Greyhound common stock. You may convert
your Greyhound preferred stock into Greyhound common stock at any time
before the merger is completed.
Q: HOW WILL THE LAIDLAW COMMON SHARES BE VALUED?
A: If Laidlaw elects to issue Laidlaw common shares in the merger, the Laidlaw
common shares will be valued based upon the weighted average sale price of
the Laidlaw common shares for the five trading days immediately prior to
the fifth trading day before the special meeting. Laidlaw will publicly
announce (by press release) whether or not it intends to pay any portion of
the merger consideration with Laidlaw common shares prior to the fifth
trading day before the date of the special meeting ( , 199 ,
unless the special meeting is postponed). See "The Merger -- The Merger
Agreement -- Merger Consideration."
Q: COULD YOU GIVE AN EXAMPLE OF HOW THE MERGER CONSIDERATION WILL BE
CALCULATED IF LAIDLAW ELECTS TO ISSUE LAIDLAW COMMON SHARES IN THE MERGER?
A: Once Laidlaw has decided the dollar amount of Laidlaw common shares it will
issue in the merger and the weighted average sale price has been
calculated, the conversion ratio of Greyhound common stock to Laidlaw
common shares can be determined. For purposes of illustration, if the
weighted average sale price of the Laidlaw common shares for the applicable
five-day period is $10.00 and Laidlaw pays $4.00 of the merger
consideration in Laidlaw common shares, then each share of Greyhound common
stock will be converted into the right to receive $2.50 in cash and
4/10ths of a Laidlaw common share. As a result, in this example, if you own
300 shares of Greyhound common stock, you would receive $750 in cash plus
120 Laidlaw common shares.
Q: IF I OWN A SMALL NUMBER OF SHARES OF GREYHOUND COMMON STOCK, WILL I RECEIVE
LAIDLAW COMMON SHARES IN THE MERGER?
A: Even if Laidlaw elects to issue Laidlaw common shares in the merger,
Laidlaw will not issue any Laidlaw common shares to a holder of Greyhound
common stock if he or she would otherwise
1
<PAGE> 8
receive less than 100 Laidlaw common shares. Laidlaw also will not issue any
fractional Laidlaw common shares. Instead of receiving Laidlaw common shares,
these holders of Greyhound common stock will receive an additional amount of
cash based upon the sale price received for such Laidlaw common shares when sold
in the open market on the NYSE. See "The Merger -- The Merger Agreement -- Small
Lots; Fractional Shares."
Q: WHO IS LAIDLAW?
A: Laidlaw Inc. is a Canadian corporation and is the largest school bus
operator in North America, operating primarily under the names Laidlaw
Transit, Mayflower Contract Services and National School Bus Services.
Laidlaw also operates municipal, intercity and charter buses, including
through its subsidiary Greyhound Canada Transportation Corp., which is
unrelated to Greyhound. Laidlaw is the largest ambulance operator in the
United States, operating primarily under the name American Medical
Response. Laidlaw also provides services to hospital emergency departments
in the United States, operating primarily under the name EmCare. See "The
Parties -- Laidlaw."
Q: WHAT DO I NEED TO DO NOW?
A: After carefully reading and considering the information contained in this
Proxy Statement/ Prospectus, please vote your shares as soon as possible.
You may vote your shares either by returning the enclosed proxy or by using
the toll free telephone number as described in your proxy card. Your voting
materials include detailed information on how to vote. The Greyhound
special meeting will take place on , 199 at : .m., local
time, at , in , Texas.
Q: IF MY SHARES ARE HELD IN "STREET NAME" BY MY BROKER, WILL MY BROKER VOTE MY
SHARES FOR ME?
A: No. Your broker can vote your shares only if you provide instructions to
him or her on how to vote. You should instruct your broker on how to vote
your shares, using the instructions provided by your broker.
Q: CAN I CHANGE MY VOTE AFTER I HAVE MAILED MY PROXY CARD OR VOTED BY
TELEPHONE?
A: Yes. You can change your vote at any time before your proxy is voted at the
special meeting. You may revoke your proxy by notifying the Secretary of
Greyhound in writing, submitting a new proxy dated after the date of the
proxy being revoked or voting by telephone at a later date. You may also
revoke your proxy by voting at the special meeting. However, simply
attending the special meeting will not revoke your proxy. If you have
instructed a broker to vote your shares, you must follow the instructions
received from your broker to change your vote.
Q: DO I NEED TO ATTEND THE GREYHOUND SPECIAL MEETING IN PERSON?
A: No. It is not necessary for you to attend the special meeting in order to
vote your shares, although you are welcome to attend.
Q: WILL I HAVE APPRAISAL RIGHTS AS A RESULT OF THE MERGER?
A: Yes. Both holders of Greyhound common stock and holders of Greyhound
preferred stock have appraisal rights. If you wish to exercise your
appraisal rights you must follow the requirements of Delaware law. A
summary describing the requirements you must follow in order to exercise
your appraisal rights is described in "The Merger -- Appraisal Rights" in
this Proxy Statement/ Prospectus.
2
<PAGE> 9
Q: WHEN WILL HOLDERS OF GREYHOUND COMMON STOCK RECEIVE THE MERGER
CONSIDERATION?
A: The merger is expected to be completed the day after the special meeting of
the Greyhound stockholders. However, it is possible that delays could
require that the merger be completed at a later time. Following the merger,
you will receive instructions on how to receive the merger consideration.
You must return your Greyhound stock certificate as described in the
instructions. You will receive your merger consideration as soon as
practicable after Laidlaw receives your Greyhound stock certificate.
Q: SHOULD I SEND IN MY GREYHOUND STOCK CERTIFICATES NOW?
A: No. After the merger is completed, Laidlaw will send the Greyhound
stockholders written instructions for exchanging their Greyhound stock
certificates.
Q: ARE LAIDLAW COMMON SHARES TRADED ON THE NEW YORK STOCK EXCHANGE?
A: Yes. Laidlaw common shares are traded on the New York Stock Exchange under
the symbol "LDW." Laidlaw common shares are also traded on The Toronto
Stock Exchange and the Montreal Exchange under the symbol "LDM."
Q: DOES LAIDLAW PAY DIVIDENDS ON THE LAIDLAW COMMON SHARES?
A: Yes. Laidlaw has paid dividends on Laidlaw common shares since 1969.
Laidlaw currently pays quarterly cash dividends of Cdn $.07 per Laidlaw
common share. Laidlaw converts all dividends into U.S. dollars for its U.S.
shareholders. The exchange rate for Canadian dollars and U.S. dollars
varies. The exchange rate on , 199 was U.S. $ for one
Canadian dollar. Laidlaw intends to continue to pay dividends on Laidlaw
common shares in the future. However, the Laidlaw Board of Directors
routinely reviews Laidlaw's dividend policy. The holders of Laidlaw common
shares will receive dividends only if and when they are declared by the
Laidlaw Board of Directors.
Q: WILL I OWE TAXES AS A RESULT OF THE MERGER?
A: The merger will be a taxable transaction for all holders of Greyhound
common stock and for holders of Greyhound preferred stock who exercise
their appraisal rights. As a result, the consideration you receive in the
merger in exchange for your shares of Greyhound common stock and any cash
you may receive from exercising your appraisal rights will be subject to
federal income tax and also may be taxed under applicable state, local and
other tax laws. In general, you will recognize gain (or loss) equal to the
difference between (i) the sum of the amount of cash you receive and, if
applicable, the fair market value of the Laidlaw common shares you receive
in the merger and (ii) the tax basis of your shares of Greyhound common
stock exchanged in the merger or the tax basis of your shares subject to
appraisal rights. Refer to the section entitled "The Merger -- Certain
Federal Income Tax Income Consequences" in this Proxy Statement/Prospectus
for a more detailed explanation of the tax consequences of the merger,
including tax consequences to holders of Greyhound preferred stock. You
should consult your tax advisor regarding the specific tax consequences of
the merger applicable to you.
3
<PAGE> 10
WHO CAN HELP ANSWER YOUR QUESTIONS?
If you have more questions about the merger after reading this Proxy
Statement/Prospectus, you should contact:
Greyhound Lines, Inc.
15110 N. Dallas Parkway, Suite 600
Dallas, Texas 75248
Telephone: (972) 789-7297
Attention: Investor Relations
4
<PAGE> 11
SUMMARY
This summary highlights selected information from this Proxy
Statement/Prospectus and may not contain all of the information that is
important to you as a Greyhound stockholder. Accordingly, we encourage you to
carefully read this entire document and the documents to which we have referred
you. All references to "dollars" or "$" in this Proxy Statement/Prospectus mean
U.S. dollars unless otherwise indicated.
THE PARTIES
Greyhound. Greyhound is the only nationwide provider of scheduled intercity bus
transportation services in the United States. Greyhound serves the
value-oriented customer by connecting rural and urban markets throughout the
United States, offering scheduled passenger service to more than 2,600
destinations with 2,500 buses and 1,650 sales locations. Greyhound also provides
package express delivery services, charter bus service and, in many terminals,
food service. Greyhound's revenues for the year ended December 31, 1997 and the
nine months ended September 30, 1998 were $771.1 million and $636.1 million,
respectively, and its net profits (or losses) for the same periods were $(16.9)
million and $31.1 million, respectively.
The principal executive offices of Greyhound are located at 15110 N. Dallas
Parkway, Suite 600, Dallas, Texas 75248, and its telephone number is (972)
789-7000.
Laidlaw and Laidlaw Acquisition. Laidlaw is the largest school bus operator in
North America, operating primarily under the names Laidlaw Transit, Mayflower
Contract Services and National School Bus Services. Laidlaw also operates
municipal, intercity and charter buses. In October 1997, Laidlaw acquired
Greyhound Canada Transportation Corp., which operates intercity buses in Canada
and is not related to Greyhound. Laidlaw is the largest ambulance operator in
the United States, operating primarily under the name American Medical Response.
Laidlaw also provides services to hospital emergency departments in the United
States, operating primarily under the name EmCare. See "The Parties -- Laidlaw."
Laidlaw Acquisition, a wholly owned subsidiary of Laidlaw, was formed for the
purpose of completing the merger. Under the terms of the Amended and Restated
Agreement and Plan of Merger among Greyhound, Laidlaw and Laidlaw Acquisition
(the "Merger Agreement"), Laidlaw Acquisition will be merged into Greyhound (the
"Merger") with Greyhound being the surviving corporation (the "Surviving
Corporation"). Following the Merger, Greyhound will be a subsidiary of Laidlaw.
The principal executive offices of Laidlaw are located at 3221 North Service
Road, Burlington, Ontario, Canada L7R 3Y8, and its telephone number is (905)
336-1800. The principal executive offices of Laidlaw Acquisition are located at
669 Airport Freeway, Suite 400, Hurst, Texas 76053, and its telephone number is
(817) 282-7580.
Greyhound is a Delaware corporation and Laidlaw is a Canadian corporation. For a
description of the key differences between the rights of holders of Greyhound
common stock and Laidlaw common shares, see "Comparison of Rights of Holders of
Greyhound Common Stock and Laidlaw Common Shares" in this Proxy
Statement/Prospectus.
5
<PAGE> 12
THE SPECIAL MEETING
Time, Date and Place. A special meeting of the stockholders of Greyhound
(including any postponement or adjournment thereof, the "Special Meeting") will
be held on , , 199 , starting at : .m., local
time, at , in , Texas.
Purpose. The purpose of the Special Meeting is for the stockholders of Greyhound
to consider and vote upon a proposal to adopt the Merger Agreement. A copy of
the Merger Agreement is attached as Appendix A to this Proxy
Statement/Prospectus.
Record Date; Shares Entitled to Vote; Quorum. Greyhound stockholders of record
as of the close of business on , 1998 (the "Record Date") will be
entitled to vote at the Special Meeting. As of the Record Date, there were
shares of common stock of Greyhound ("Greyhound Common Stock") and
2,400,000 shares of 8 1/2% convertible exchangeable preferred stock of Greyhound
("Greyhound Preferred Stock") entitled to vote at the Special Meeting. As of the
Record Date, there were record holders of Greyhound Common Stock and
record holders of Greyhound Preferred Stock. A majority of the
outstanding shares of Greyhound Common Stock and Greyhound Preferred Stock
(collectively, "Greyhound Stock") must be present or represented by proxy for a
quorum to exist. A quorum is necessary to hold the Special Meeting. Any shares
of Greyhound Common Stock held in treasury by Greyhound or by any of its
subsidiaries are not considered to be outstanding for purposes of the Merger.
See "The Special Meeting -- Voting at the Special Meeting."
Required Vote. Each Greyhound stockholder has one vote for each share of
Greyhound Common Stock and Greyhound Preferred Stock they own. Under the terms
of Greyhound's Restated Certificate of Incorporation, as amended ("Greyhound
Certificate"), holders of Greyhound Common Stock and Greyhound Preferred Stock
vote together as one class. The affirmative vote of a majority of the
outstanding shares of Greyhound Stock is required for the adoption of the Merger
Agreement. Laidlaw and Laidlaw Acquisition have agreed to vote all of their
shares of Greyhound Common Stock "For" the adoption of the Merger Agreement. As
of the Record Date, Laidlaw and its subsidiaries owned 1,389,700 shares of
Greyhound Common Stock or approximately 2.3% of the outstanding shares of
Greyhound Common Stock on such date. As of the Record Date, the directors and
executive officers of Greyhound and their affiliates owned, in the aggregate,
approximately % of the outstanding shares of Greyhound Common Stock on such
date. All such directors and executive officers have informed Greyhound that
they intend to vote all of their shares "For" the adoption of the Merger
Agreement.
Revoking Proxies. Any proxy given may be revoked by the person who gave it at
any time before the proxy is voted at the Special Meeting. A proxy may be
revoked by notifying the Secretary of Greyhound in writing of the desire to
revoke the proxy, by submitting a new proxy dated after the date of the proxy
that is being revoked or by voting by telephone at a later time. A proxy may
also be revoked by voting in person at the Special Meeting. However, simply
attending the Special Meeting will not, in itself, revoke a proxy. See "The
Special Meeting -- Proxies; Revocation."
RECOMMENDATION OF THE GREYHOUND BOARD
The Board of Directors of Greyhound ("Greyhound Board") has, by the unanimous
vote of all directors present, approved the Merger Agreement. The Greyhound
Board believes that the Merger is in the best interests of Greyhound and its
stockholders and recommends that the Greyhound stockholders vote "For" the
adoption of the Merger Agreement.
6
<PAGE> 13
OPINION OF GREYHOUND'S FINANCIAL ADVISOR
Bear Stearns & Co. Inc. ("Bear Stearns") was retained by the Greyhound Board to
act as its exclusive financial advisor to evaluate the Merger and the fairness,
from a financial point of view, of the consideration to be received by the
Greyhound stockholders. Bear Stearns has delivered its opinion dated as of
October 16, 1998 to the effect that, as of the date of such opinion and based
upon and subject to the assumptions, limitations and qualifications contained in
its opinion, the consideration to be received by the Greyhound stockholders in
the Merger is fair, from a financial point of view, to the Greyhound
stockholders. A copy of the Bear Stearns opinion is attached as Appendix B to
this Proxy Statement/Prospectus. Greyhound stockholders are urged to read the
Bear Stearns opinion carefully and in its entirety to understand the procedures
followed, assumptions made, matters considered and limitations on the opinion.
See "The Merger -- Opinion of Greyhound's Financial Advisor."
THE MERGER
General. In the Merger, Laidlaw Acquisition will be merged into Greyhound, with
Greyhound being the Surviving Corporation. Upon completion of the Merger,
Greyhound will be a subsidiary of Laidlaw. Subject to satisfaction or waiver of
certain conditions contained in the Merger Agreement, Greyhound and Laidlaw
presently intend to file a Certificate of Merger with the Secretary of State of
the State of Delaware (the "Certificate of Merger") the day after the Special
Meeting if a majority of the holders of the outstanding shares of Greyhound
Stock vote to adopt the Merger Agreement. The Merger will be effective upon the
filing of the Certificate of Merger or such later time as is specified in the
Certificate of Merger (the "Effective Time").
Merger Consideration. In the Merger, each share of Greyhound Common Stock that
is outstanding immediately prior to the Effective Time (other than those
canceled in accordance with the Merger Agreement and any dissenting shares) will
be converted into the right to receive $6.50 (the "Merger Consideration"). The
Merger Consideration will be payable in cash; however, Laidlaw has the option to
pay up to $4.00 of the Merger Consideration with common shares of Laidlaw
("Laidlaw Common Shares"). If Laidlaw elects to issue Laidlaw Common Shares in
the Merger, the Laidlaw Common Shares will be valued based upon the weighted
average sale price of the Laidlaw Common Shares on the New York Stock Exchange
("NYSE") and The Toronto Stock Exchange ("TSE") for the five trading days
immediately preceding, but not including, the fifth trading day prior to the
Special Meeting. Laidlaw will publicly announce (by press release) whether or
not it intends to pay a portion of the Merger Consideration with Laidlaw Common
Shares prior to the fifth trading day before the date of the Special Meeting
( , 1999, unless the Special Meeting is postponed). See "The
Merger -- The Merger Agreement -- Merger Consideration."
In the Merger, each share of Greyhound Preferred Stock that is outstanding
immediately prior to the Effective Time (other than any dissenting shares) will
remain outstanding unless converted into shares of Greyhound Common Stock prior
to the Effective Time. However, the Greyhound Preferred Stock will no longer be
convertible into shares of Greyhound Common Stock after the Merger. Instead, the
Greyhound Preferred Stock will be convertible into the same Merger Consideration
paid to the holders of Greyhound Common Stock multiplied by the number of shares
of Greyhound Common Stock issuable upon the conversion of one share of Greyhound
Preferred Stock. Each share of Greyhound Preferred Stock is presently
convertible into approximately 5.128 shares of Greyhound Common Stock. See "The
Merger -- The Merger Agreement -- Merger Consideration."
7
<PAGE> 14
Small Lots; Fractional Shares. If Laidlaw elects to pay a portion of the Merger
Consideration with Laidlaw Common Shares, the holders of Greyhound Common Stock
will receive a combination of cash and Laidlaw Common Shares in exchange for
their shares of Greyhound Common Stock. Laidlaw, however, will not issue any
Laidlaw Common Shares to a holder of Greyhound Common Stock if that holder will
receive less than 100 Laidlaw Common Shares in the Merger. Laidlaw also will not
issue any fractional Laidlaw Common Shares. Instead of receiving Laidlaw Common
Shares, these holders of Greyhound Common Stock will receive an additional
amount in cash, based upon the aggregate sale prices received for such shares
when sold in the open market on the NYSE. The sale of these Laidlaw Common
Shares will be completed as soon as possible after the Merger. Consequently,
these holders of Greyhound Common Stock will receive a cash amount as soon as
practicable following the sale of all such Laidlaw Common Shares. See "The
Merger -- The Merger Agreement -- Small Lots; Fractional Shares."
Dissenting Shares. The holders of Greyhound Common Stock and Greyhound Preferred
Stock will have appraisal rights under Section 262 of the Delaware General
Corporation Law (the "DGCL") if the Merger is completed. If a holder of
Greyhound Common Stock exercises his or her appraisal rights and complies with
the requirements of Section 262 of the DGCL, the shares of Greyhound Common
Stock owned by such Greyhound stockholder will not be converted into the right
to receive the Merger Consideration at the Effective Time. Instead, such
Greyhound stockholder will receive the appraised value of his or her shares of
Greyhound Common Stock, but only if he or she complies with the requirements of
Section 262 of the DGCL. If a holder of Greyhound Preferred Stock exercises his
or her appraisal rights and complies with the requirements of Section 262 of the
DGCL, the shares of Greyhound Preferred Stock owned by such Greyhound
stockholder will not remain outstanding following the Merger. Instead, such
Greyhound stockholder will receive the appraised value of his or her Greyhound
Preferred Stock. A Greyhound stockholder must follow the requirements contained
in the DGCL in order to exercise his or her appraisal rights. The requirements
to be followed by a Greyhound stockholder are summarized in "The Merger --
Appraisal Rights." See also "The Merger -- The Merger Agreement -- Dissenting
Shares."
Treatment of Greyhound Options. Greyhound will offer each holder of an
outstanding option to purchase shares of Greyhound Common Stock ("Greyhound
Options") the right to cancel each of their Greyhound Options in exchange for an
amount in cash equal to $6.50 less the exercise price of the Greyhound Option.
In the event that any Greyhound Option is not canceled prior to the Effective
Time, such Greyhound Option will remain outstanding under the terms of the
applicable Greyhound stock option plan. This offer, however, will not be made
with respect to the Greyhound Options issuable under a plan ("Union Option
Plan") for one of the unions that represents certain Greyhound employees.
Instead, the effects of the Merger on the Greyhound Options granted under the
Union Option Plan will be governed by the terms of the Union Option Plan. See
"The Merger -- The Merger Agreement -- Treatment of Greyhound Stock Options."
Conditions to the Merger. The obligations of Greyhound and Laidlaw to complete
the Merger are subject to a number of conditions, including:
- adoption of the Merger Agreement by the holders of a majority of the
outstanding shares of Greyhound Common Stock and Greyhound Preferred
Stock (voting together as one class);
- no court order prohibiting the Merger and no law in effect making the
Merger illegal;
- the Registration Statement with respect to the Laidlaw Common Shares
issuable in the Merger (the "Registration Statement") continuing to be
effective;
- the Bear Stearns fairness opinion not having been modified or withdrawn;
and
8
<PAGE> 15
- the Laidlaw Common Shares to be issued in the Merger having been approved
for listing on the NYSE (if applicable).
See "The Merger -- The Merger Agreement -- Conditions to the Merger."
Termination; Break-Up Fee. The Merger Agreement may be terminated at any time
prior to the Effective Time in any one of the following circumstances:
- by the mutual written consent of the Greyhound Board and the Board of
Directors of Laidlaw ("Laidlaw Board");
- by Greyhound or Laidlaw, if any court or other governmental agency issues
a nonappealable final order or ruling or has taken any action to
permanently prevent the Merger (but neither party may terminate if their
failure to perform their obligations contained in the Merger Agreement
materially contributed to the issuance of the order or ruling, or the
taking of such action);
- by Greyhound or Laidlaw, if Greyhound enters into an agreement with
respect to a superior proposal (which means an acquisition proposal that
the Greyhound Board believes, after consultation with Bear Stearns, is
more favorable, from a financial point of view, to Greyhound and its
stockholders than the Merger);
- by Laidlaw, if the Greyhound Board withdraws, modifies or changes its
approval or recommendation of the Merger Agreement or the Merger in a
manner adverse to Laidlaw;
- by Greyhound or Laidlaw, if any representation or warranty made by the
other party in the Merger Agreement was untrue on the date the
representation or warranty was made, or the other party fails to comply
in any material respect with any of the agreements made by such other
party in the Merger Agreement (subject to a materiality standard and time
to correct the error as described in the Merger Agreement), but neither
party may terminate if they are in material breach of their
representations, warranties or agreements contained in the Merger
Agreement;
- by Greyhound or Laidlaw, if the Special Meeting was held and the Merger
Agreement was not adopted by Greyhound stockholders; or
- by Greyhound or Laidlaw, if the Merger is not completed by March 31,
1999, but neither party may terminate if their failure to perform their
obligations contained in the Merger Agreement is the reason the Merger
was not completed by that date.
Greyhound will be required to pay Laidlaw $20 million (the "Termination Fee") if
the Merger Agreement is terminated by Laidlaw because either Greyhound entered
into an agreement relating to a superior proposal or the Greyhound Board
withdraws or modifies its recommendation or approval of the Merger or Merger
Agreement and a superior proposal has been made and is pending. See "The
Merger -- The Merger Agreement -- Termination; Break-Up Fee."
Certain Federal Income Tax Consequences. The receipt of the Merger Consideration
by a holder of Greyhound Common Stock (including any cash amounts received by
holders of Greyhound Common Stock exercising their appraisal rights) will be a
taxable transaction for federal income tax purposes (and also may be a taxable
transaction under applicable state, local and other income tax laws). In
general, for federal income tax purposes, a holder of Greyhound Common Stock
will recognize gain or loss equal to the difference between his or her adjusted
tax basis in the shares of Greyhound Common Stock exchanged in the Merger, and
the amount of cash and the fair market value (determined as of the Effective
Time) of the Laidlaw Common Shares received in the Merger. The gain or loss
recognized by the holders of Greyhound Common Stock will be capital gain or
loss, and
9
<PAGE> 16
will be long-term gain or loss if, on the date of the Merger, the shares of
Greyhound Common Stock being exchanged in the Merger were held for more than one
year.
The Merger will not be a taxable transaction to a holder of Greyhound Preferred
Stock unless that holder converts his or her shares of Greyhound Preferred Stock
into shares of Greyhound Common Stock prior to the Merger or receives cash as a
result of exercising appraisal rights. If and when any shares of Greyhound
Preferred Stock are converted into the Merger Consideration following the
Merger, the conversion will be a taxable transaction and the holder of the
Greyhound Preferred Stock will recognize gain or loss equal to the difference
between his or her adjusted basis in the shares of converted Greyhound Preferred
Stock and the amount of cash and the fair market value (determined as of the
conversion) of the Laidlaw Common Shares received upon conversion.
See "The Merger -- Certain Federal Income Tax Consequences" for a more detailed
explanation of the tax consequences of the Merger. Greyhound stockholders should
consult their own tax advisors with respect to the specific tax consequences of
the Merger in their individual circumstances.
Governmental Approvals. Laidlaw is required to make application to the Surface
Transportation Board ("STB") of the Department of Transportation ("DOT") as a
result of the Merger. Laidlaw has submitted an application to the STB for
approval of the Merger. However, the Merger is not conditioned upon receiving
the STB's final approval prior to the Effective Time. See "The Merger -- The
Merger Agreement -- Conditions to the Merger" and "The Merger -- Governmental
Approvals."
Interests of Certain Persons in the Merger. Some of Greyhound's management and
directors may have interests in the Merger that are different from or in
addition to the interests of stockholders of Greyhound generally. These
additional interests relate to provisions in the Merger Agreement regarding
certain employment agreements for two executive officers of Greyhound, the
performance and provision of obligations and benefits under existing severance
agreements and severance plans, certain additional actions to be taken in
respect of employee benefit and stock plans, the treatment of outstanding
Greyhound Options, the vesting of certain employee benefits by reason of the
Merger, the payment of the remaining annual retainer fees payable to
non-employee directors and the indemnification and provision of directors' and
officers' liability insurance for the directors and officers of Greyhound. See
"The Merger -- Interests of Certain Persons in the Merger."
Accounting Treatment. The Merger will be accounted for as a purchase of
Greyhound by Laidlaw under Canadian generally accepted accounting principles
("GAAP"). Canadian GAAP conforms in all material respects with U.S. GAAP as it
relates to the Merger. Under the purchase method of accounting, the purchase
price paid by Laidlaw for Greyhound (including direct costs of the Merger) will
be allocated to the assets of Greyhound based upon estimates of the fair value
of Greyhound's assets and liabilities as of the Effective Time. The excess of
the purchase price over the fair value of Greyhound's net assets will be
allocated to goodwill. On a pro forma basis, giving effect to the Merger as if
the Merger had been completed on August 31, 1998, the excess of the purchase
price over the fair value of Greyhound's assets would have been approximately
$361 million. See Note 3 of "Notes to Unaudited Pro Forma Condensed Combined
Financial Information."
10
<PAGE> 17
SELECTED FINANCIAL DATA
Selected Historical Financial Data of Laidlaw. The selected historical financial
data of Laidlaw set forth below has been derived from the consolidated financial
statements of Laidlaw included in Laidlaw's Annual Report on Form 10-K for the
fiscal year ended August 31, 1998 and should be read in connection with those
financial statements, which are incorporated by reference in this Proxy
Statement/Prospectus. See "Incorporation of Certain Documents By Reference."
LAIDLAW INC.
SELECTED HISTORICAL FINANCIAL DATA
(IN MILLIONS, EXCEPT PER SHARE DATA)
<TABLE>
<CAPTION>
FISCAL YEAR ENDED AUGUST 31,
----------------------------------------------------
1998 1997 1996 1995 1994
-------- -------- -------- -------- --------
<S> <C> <C> <C> <C> <C>
STATEMENT OF OPERATIONS DATA:
Revenue............................................ $3,690.2 $3,030.7 $2,296.0 $1,722.4 $1,378.1
Income from continuing operations.................. 346.0(1) 45.2(2) 117.2 74.9 48.8(3)
Earnings per share from continuing operations...... 1.05(1) 0.14(2) 0.40 0.27 0.18(3)
Cash dividends per common share.................... 0.180 0.146 0.139 0.116 0.118
BALANCE SHEET DATA:
Working capital.................................... $ 285.7 $ 483.4 $ 293.5 $ 170.1 $ 212.4
Total assets....................................... 6,184.6 6,117.1 4,932.3 4,134.8 3,504.0
Long-term debt (including ADT-linked debentures)... 2,293.7 2,192.4 2,041.3 1,734.1 1,426.9
Stockholders' equity............................... 3,089.9 2,794.0 2,136.8 1,697.4 1,585.9
Weighted average common shares..................... 329.8 317.1 293.2 277.2 277.2
</TABLE>
- -------------------------
(1) Includes a $100.7 dilution gain, net of tax ($0.30 per share), and a $17.7
restructuring charge, net of tax ($0.05 per share).
(2) Includes a $154.7 restructuring charge, net of tax ($0.49 per share).
(3) Includes a $16.7 unusual charge, net of tax ($0.06 per share).
11
<PAGE> 18
Selected Historical Financial Data of Greyhound. The selected historical
financial data of Greyhound set forth below has been derived from the
consolidated financial statements of Greyhound included in Greyhound's Annual
Report on Form 10-K for the fiscal year ended December 31, 1997 and Greyhound's
Quarterly Report on Form 10-Q for the quarter ended September 30, 1998 and
should be read in connection with those financial statements, which are
incorporated by reference in this Proxy Statement/Prospectus. See "Incorporation
of Certain Documents By Reference."
GREYHOUND LINES, INC.
SELECTED HISTORICAL FINANCIAL DATA
(IN MILLIONS, EXCEPT PER SHARE DATA)
<TABLE>
<CAPTION>
NINE MONTHS
ENDED YEAR ENDED DECEMBER 31,
SEPTEMBER 30, ----------------------------------------------
1998 1997 1996 1995 1994 1993
------------- ------- ------ ------ ------- ------
<S> <C> <C> <C> <C> <C> <C>
STATEMENT OF OPERATIONS DATA:
Revenues.......................... $636.1 $ 771.1 $700.9 $657.1 $ 615.3 $665.6
Net income (loss) attributable to
common stockholders............. 27.3(1) (20.6)(2) (6.6) (17.8) (77.4)(3) 7.5(4)
Net income (loss) per share
attributable to common
stockholders.................... 0.46(1) (0.35)(2) (0.11) (0.33) (5.07)(3) 0.57(4)
BALANCE SHEET DATA:
Working capital................... $ 10.6 $ (70.5) $(57.1) $(54.4) $ (17.2) $ 9.6
Total assets...................... 659.0 566.6 500.3 480.6 511.5 541.3
Long-term debt.................... 257.2 208.0 192.6 172.7 197.1 260.4
Stockholders' equity.............. 213.4 179.6 140.9 149.8 153.2 152.2
Weighted average common shares.... 59.8 59.0 58.3 54.6 15.3 12.9
</TABLE>
- -------------------------
(1) Includes the income tax benefit of net operating loss carryforwards of $23.6
($0.39 per share).
(2) Includes an extraordinary loss of $25.3 ($0.43 per share).
(3) Includes $61.9 ($4.05 per share) in operating charges to recognize
pre-bankruptcy claims, an extraordinary gain of $41.9 ($2.74 per share) and
an extraordinary loss of $3.6 ($0.23 per share).
(4) Includes an extraordinary loss of $0.4 ($0.03 per share) and a loss of $0.7
($0.05 per share) from the cumulative effect of a change in accounting
principle.
12
<PAGE> 19
SUMMARY UNAUDITED PRO FORMA COMBINED FINANCIAL INFORMATION
The following selected unaudited pro forma combined financial information
combines the consolidated balance sheets and consolidated income statements of
Laidlaw and Greyhound as if the Merger had occurred for all periods presented.
These statements have been prepared on the basis of accounting for the Merger as
a purchase and are based on the assumptions described in the notes to the
statements. These statements and the pro forma information presented below do
not reflect the estimated cost savings Laidlaw believes will result from the
Merger. The following information is not necessarily indicative of the financial
position or the actual results of operations that would have occurred had the
Merger occurred on such dates or of expected future results. This information
should be read in connection with and is qualified in its entirety by the
consolidated financial statements and accompanying notes of Laidlaw and
Greyhound which financial statements are incorporated by reference in this Proxy
Statement/Prospectus (see "Incorporation of Certain Documents By Reference") and
the pro forma condensed combined financial statements and accompanying
discussion and notes included in "Unaudited Pro Forma Condensed Combined
Financial Information."
LAIDLAW INC.
SUMMARY UNAUDITED PRO FORMA FINANCIAL DATA
(IN MILLIONS, EXCEPT PER SHARE DATA)
<TABLE>
<CAPTION>
TWELVE MONTHS
ENDED
AUGUST 31, 1998(1)
------------------
<S> <C>
STATEMENT OF OPERATIONS DATA:
Revenues.................................................... $4,526.2
Net income available to common shareholders(2).............. 349.7
Earnings per share(2)....................................... 0.97
Cash dividends per common share............................. 0.180
Weighted average common shares.............................. 359.1
BALANCE SHEET DATA:
Assets:
Total current assets...................................... $1,051.5
Total assets.............................................. 7,161.6
Liabilities:
Total current liabilities................................. $ 755.2
Long-term debt............................................ 2,798.1
Total liabilities......................................... 3,787.5
Shareholders' Equity........................................ 3,374.1
Working capital............................................. 296.3
Long-term debt/equity....................................... 0.83
</TABLE>
- -------------------------
(1) Assumes that Laidlaw pays the Merger Consideration with $2.50 in cash and
$4.00 in Laidlaw Common Shares and the conversion of the Greyhound Preferred
Stock prior to the Merger.
(2) Includes a $100.7 dilution gain, net of tax ($0.30 per share), and a $17.7
restructuring charge, net of tax ($0.05 per share).
13
<PAGE> 20
SELECTED PER SHARE FINANCIAL INFORMATION
The following table sets forth selected historical per share financial
information for each of Laidlaw and Greyhound and unaudited pro forma per share
financial information for Laidlaw giving effect to the Merger, as if the Merger
had been completed as of August 31, 1998, in the case of book value information,
and September 1, 1997, in the case of earnings information. The information
presented below has been derived from (i) the consolidated historical financial
statements of Laidlaw and Greyhound, including the related notes thereto,
included or incorporated by reference in this Proxy Statement/Prospectus, and
(ii) the pro forma financial information, including the notes thereto, contained
in this Proxy Statement/Prospectus.
<TABLE>
<CAPTION>
LAIDLAW GREYHOUND
HISTORICAL GREYHOUND HISTORICAL PRO FORMA
---------- ---------------------------- EQUIVALENTS
YEAR YEAR NINE MONTHS LAIDLAW/GREYHOUND 12 MONTHS
ENDED ENDED ENDED PRO FORMA COMBINED ENDED
AUGUST 31, DECEMBER 31, SEPTEMBER 30, 12 MONTHS ENDED AUGUST 31,
1998 1997 1998 AUGUST 31, 1998(1) 1998(2)
---------- ------------ ------------- ------------------ -----------
<S> <C> <C> <C> <C> <C>
Book value per common share....... $9.33 $ 2.02 $2.55 $9.36 $3.86
Income (loss) per common share.... 1.05 (0.35) 0.46 0.97 0.40
Cash dividends per common share... 0.18 -- -- 0.18 0.07
</TABLE>
- -------------------------
(1) Assumes that Laidlaw pays the Merger Consideration with $2.50 in cash and
$4.00 in Laidlaw Common Shares and the conversion of the Greyhound Preferred
Stock prior to the Merger.
(2) The Greyhound pro forma equivalent represents the Laidlaw/Greyhound pro
forma combined book value, income per common share and cash dividends per
common share multiplied by 0.4129, which assumes a Laidlaw share price of
$9.6875. The actual weighted average sale price for the applicable five-day
trading period may differ.
14
<PAGE> 21
MARKET PRICE AND DIVIDEND INFORMATION
Greyhound Common Stock trades on the American Stock Exchange ("AMEX") under the
symbol "BUS." The following table sets forth the high and low sale prices per
share of Greyhound Common Stock as reported on the AMEX for each quarter
indicated below.
<TABLE>
<CAPTION>
HIGH LOW
-------- --------
<S> <C> <C>
Quarter Ended:
March 31, 1996............................................ $4 9/16 $2 7/8
June 30, 1996............................................. 5 3 1/2
September 30, 1996........................................ 4 9/16 3 1/16
December 31, 1996......................................... 4 1/2 3
Quarter Ended:
March 31, 1997............................................ $5 1/2 $3 15/16
June 30, 1997............................................. 5 3 7/16
September 30, 1997........................................ 4 7/8 3 3/4
December 31, 1997......................................... 4 7/16 3 3/8
Quarter Ended:
March 31, 1998............................................ $5 3/4 $3 1/2
June 30, 1998............................................. 6 15/16 4 3/8
September 30, 1998........................................ 6 3/16 3 5/8
December 31, 1998 (through , 199 ).............
</TABLE>
The shares of Greyhound Preferred Stock are not traded on any national
securities exchange, the NASDAQ Stock Market or any over-the-counter quotation
system.
Laidlaw Common Shares trade on the NYSE under the symbol "LDW." Laidlaw Common
Shares also trade on the TSE and the Montreal Exchange under the symbol "LDM."
Prior to August 1, 1997, Laidlaw's capital stock consisted of voting Class A
Shares and Class B Non-Voting Shares. Effective August 1, 1997, each Class A
Share was converted into 1.15 Laidlaw Common Shares and each Class B Non-Voting
Share was converted into one Laidlaw Common Share. The following table sets
forth the high and low sale prices of Laidlaw's Class A Shares and Class B
Non-Voting Shares as reported on the NYSE for each fiscal quarter indicated
below.
<TABLE>
<CAPTION>
CLASS B
NON-VOTING
CLASS A SHARES SHARES
--------------------- ---------------------
HIGH LOW HIGH LOW
-------- -------- -------- --------
<S> <C> <C> <C> <C>
Quarter Ended:
November 30, 1996.................................... $12 1/4 $ 9 1/2 $12 3/8 $ 9 3/8
February 28, 1997.................................... 13 7/8 11 1/2 14 11 1/4
May 31, 1997......................................... 14 7/8 12 5/8 15 1/8 12 5/8
August 31, 1997 (through July 31, 1997).............. 18 13 1/2 15 15/16 13 3/8
</TABLE>
15
<PAGE> 22
The following table sets forth the high and low sale prices of Laidlaw Common
Shares as reported on the NYSE for each fiscal quarter indicated below.
<TABLE>
<CAPTION>
COMMON SHARES
----------------------
HIGH LOW
-------- --------
<S> <C> <C>
Quarter Ended:
August 31, 1997 (from August 1, 1997)..................... $16 1/2 $14 3/8
November 30, 1997......................................... $16 1/4 $12 5/8
February 28, 1998......................................... 15 1/16 12 13/16
May 31, 1998.............................................. 16 5/8 12 3/8
August 31, 1998........................................... 12 7/8 8 13/16
Quarter Ended:
November 30, 1998 (through , 199 ).............
</TABLE>
On October 16, 1998, the last full trading day prior to the public announcement
of the Merger, the closing price per share of Greyhound Common Stock as reported
on the AMEX was $4 7/8. On , 1998, the last full trading day prior
to the date of this Proxy Statement/Prospectus, the closing price per share for
Greyhound Common Stock as reported on AMEX was $ .
On October 16, 1998, the last full trading day prior to the public announcement
of the Merger, the closing price per Laidlaw Common Share as reported on the
NYSE was $9 11/16. On , 1998, the last full trading day prior to the
date of this Proxy Statement/Prospectus, the closing price per Laidlaw Common
Share as reported on the NYSE was $ .
Laidlaw has paid quarterly cash dividends on the Laidlaw Common Shares since
1969. Laidlaw currently pays quarterly cash dividends of Cdn $.07 per Laidlaw
Common Share. Laidlaw converts all dividends into U.S. dollars based on the
current exchange rate before distribution to its U.S. shareholders. The exchange
rate for Canadian dollars and U.S. dollars varies. The exchange ratio on ,
199 was U.S. $ for one Canadian dollar. Dividends paid to non-residents of
Canada are subject to Canadian non-resident withholding tax. The current rate of
non-resident withholding tax for U.S. residents is generally 15%. Laidlaw
intends to continue to pay dividends on the Laidlaw Common Shares in the future.
However, the Laidlaw Board routinely reviews Laidlaw's dividend policy in light
of, among other things, Laidlaw's results of operations and financial position.
The holders of Laidlaw Common Shares will receive dividends only if and when
they are declared by the Laidlaw Board.
Greyhound has not paid any dividends on Greyhound Common Stock in the past and
does not expect to pay any dividends in the foreseeable future. Under the terms
of its existing debt agreements, Greyhound is restricted from paying dividends
on Greyhound Common Stock. Greyhound has paid quarterly cash dividends of
$.53125 per share of Greyhound Preferred Stock since the issuance of the
Greyhound Preferred Stock in April, 1997.
Greyhound stockholders are encouraged to obtain current market quotations for
both Laidlaw Common Shares and Greyhound Common Stock.
RISK FACTORS
See "Risk Factors" for a discussion of certain risks of ownership of Laidlaw
Common Shares and other matters that should be considered in determining how to
vote upon the proposal to approve the Merger.
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<PAGE> 23
CERTAIN LITIGATION
Greyhound has obtained copies of two complaints filed in Delaware Chancery Court
purportedly filed by certain individual Greyhound stockholders on behalf of
themselves and all other Greyhound stockholders alleging, among other things,
that Greyhound's directors breached their fiduciary duties in approving the
Merger. Greyhound was served with one of these complaints on October 28, 1998.
The suits name Greyhound, each of its directors and Laidlaw as defendants.
Greyhound intends to defend these suits vigorously. See "The Merger -- Certain
Litigation."
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<PAGE> 24
RISK FACTORS
Under the terms of the Merger Agreement, Laidlaw has the option of paying up to
$4.00 of the Merger Consideration with Laidlaw Common Shares. Greyhound
stockholders should carefully consider the following risk factors together with
the information included in this Proxy Statement/ Prospectus before voting on
the proposal to adopt the Merger Agreement. Each of these risk factors could
adversely affect the value of your possible investment in Laidlaw Common Shares.
RISK OF INTEGRATION OF THE COMBINED COMPANIES; SIGNIFICANT UNCERTAINTIES
Greyhound and Laidlaw entered into the Merger Agreement expecting that the
Merger will result in cost savings for the combined companies. There are,
however, significant uncertainties and risks relating to combining the
operations of Greyhound and Laidlaw. The Merger will significantly increase the
size of Laidlaw's scheduled intercity bus transportation business. As a result,
Laidlaw will have to implement a number of strategic and operational decisions
regarding the integration of Greyhound's and Laidlaw's operations following the
Merger. The manner in which Laidlaw implements its decisions may significantly
impact the ongoing operations of Greyhound and Laidlaw. It is difficult to
assess with any certainty the impact that Laidlaw's decisions may have on its
results of operations and financial condition.
UNCERTAINTY REGARDING MERGER CONSIDERATION
Laidlaw has the option to pay a portion of the Merger Consideration in Laidlaw
Common Shares. Laidlaw is not obligated to determine the dollar amount, if any,
of the Merger Consideration that will be paid in Laidlaw Common Shares to the
Greyhound stockholders in the Merger until prior to the fifth trading day before
the Special Meeting. See "The Merger -- The Merger Agreement -- Merger
Consideration." Further, the value of the Laidlaw Common Shares will be based on
the weighted average sale prices of the Laidlaw Common Shares as reported on the
NYSE and the TSE, which can vary. These variances may result from a number of
factors that may be specific to Laidlaw or to the general market and economic
conditions as a whole. Factors that are specific to Laidlaw may include its
results of operations and financial condition, its business in general and the
prospects of the successful completion of the Merger. Further, the sale prices
reported on the TSE will be converted from Canadian dollars to U.S. dollars
using the current exchange rate, which is not predictable with any certainty. As
a result of all these factors, the number of Laidlaw Common Shares that a holder
of Greyhound Common Stock will receive may vary. Further, the sale price of the
Laidlaw Common Shares at the Effective Time may vary from the sale price on the
date the Merger was publicly announced, the date of this Proxy
Statement/Prospectus, the date on which the dollar amount, if any, of the Merger
Consideration to be paid in Laidlaw Common Shares is determined or the date on
which the Special Meeting is held.
RISKS ASSOCIATED WITH ACQUISITION STRATEGY
Laidlaw expects to continue acquiring businesses and companies, like Greyhound,
that Laidlaw believes will enhance its operations and profitability. Laidlaw may
be unable to successfully combine the operations of Greyhound or any other
acquired businesses and companies with its operations. Further, any acquisitions
made by Laidlaw, including the acquisition of Greyhound, may not prove to be
profitable.
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<PAGE> 25
EXCHANGE RATE FLUCTUATIONS; CANADIAN TAX OBLIGATIONS
Laidlaw pays dividends on the Laidlaw Common Shares in Canadian dollars. Laidlaw
converts the dividends to U.S. dollars based on the current exchange rate for
its U.S. shareholders prior to payment. As a result, an increase or decrease in
the U.S./Canadian dollar exchange rate will increase or decrease the value of
the dividends paid to U.S. holders of Laidlaw Common Shares when the dividend
payments are converted into U.S. dollars.
Dividends paid to non-residents of Canada are subject to Canadian non-resident
withholding tax. The current rate of non-resident withholding tax for U.S.
residents is generally 15%. A holder of Laidlaw Common Shares who does not
reside in Canada is not subject to Canadian capital gains tax upon the sale of
such holder's Laidlaw Common Shares unless the Laidlaw Common Shares are
considered taxable Canadian property as defined in the Income Tax Act of Canada
and the non-resident is not entitled to relief under an applicable tax treaty.
GOVERNMENTAL REGULATION
General. Greyhound's and Laidlaw's activities are subject to extensive and
rigorous governmental regulation at the federal, state, provincial and local
levels. These governmental regulations cover licensing, rates, employee
certification, health, safety, insurance, environmental matters and other
factors. The failure to comply with these regulatory requirements can result in
fines, operating restrictions or suspensions. Further, new federal, state,
provincial or local laws or regulations may be adopted which could increase
Laidlaw's cost of doing business, reduce reimbursement levels or otherwise
adversely affect the business, financial condition or operating results of
Laidlaw following the Merger.
Americans with Disabilities Act. Greyhound and Laidlaw are subject to regulation
under the Americans with Disabilities Act (the "ADA"). Under the ADA, Greyhound
and Laidlaw are required to operate buses that are accessible to disabled
persons. The ADA does not require that existing buses be modified to include
lift equipment but requires that all newly acquired buses used in fixed route
operations be equipped to be accessible to disabled persons. Greyhound estimates
that new buses with built-in lift devices will cost an additional $20,000 to
$40,000 per bus and maintenance and training costs will increase. Additionally,
the ADA requires Greyhound and Laidlaw to design new terminal facilities and to
reconstruct existing terminal facilities to make them accessible to disabled
persons. Laidlaw cannot assure you that implementation of these changes
following the Merger will not significantly impact future results of operations
or the financial condition of Laidlaw.
Health Care Regulation. Ambulance services are affected by regulations covering
licensing, rates, health, safety, insurance and other matters. Most emergency or
911 contracts are granted exclusive supplier status through the issuance of a
certificate of need or a public service agreement. Exclusive supplier status
agreements are linked to service level measurements regarding response times and
performance.
A substantial majority of Laidlaw's revenues are attributable to payments
received from third-parties payors, including Medicare, Medicaid and private
insurers. Laidlaw is subject to various regulatory requirements in connection
with its participation in the Medicare and Medicaid programs. The federal
Healthcare Financing Administration has proposed rules which would revise the
policy on Medicare coverage of ambulance services focusing on the medical
necessity for the particular ambulance services.
Laidlaw, like other Medicare and Medicaid providers, is subject to governmental
audits of its Medicare and Medicaid reimbursement claims. Accordingly,
retroactive revenue adjustments from
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<PAGE> 26
these programs could occur. Laidlaw is also subject to the Medicare and Medicaid
fraud and abuse laws which prohibit any bribe, kick-back or rebate in return for
the referral of Medicare or Medicaid patients. Violations of these prohibitions
may result in civil and criminal penalties and exclusion from participation in
the Medicare and Medicaid programs.
TAX LITIGATION
The Internal Revenue Service ("IRS") has examined the consolidated federal
income tax returns of Laidlaw's United States subsidiaries ("U.S. Subsidiaries")
that were filed for the fiscal years ended August 31, 1986 through 1994. As a
result of these examinations, the U.S. Subsidiaries may be liable for
substantial additional taxes and interest. On June 30, 1998, the United States
Tax Court ("Tax Court") held that advances made from Laidlaw's related foreign
entity, based in Holland, to certain of Laidlaw's U.S. Subsidiaries were
properly classified for federal income tax purposes as equity rather than debt.
This decision would result in the disallowance of the interest deductions
claimed by such subsidiaries with respect to the advances and would, therefore,
require the U.S. Subsidiaries to pay additional taxes of $46.2 million (plus
interest of approximately $88.8 million as of August 31, 1998) for the fiscal
years ended August 31, 1986, 1987 and 1988. The IRS has asserted similar claims
with respect to the consolidated federal income tax returns of the U.S.
Subsidiaries for the fiscal years ended August 31, 1989, 1990 and 1991. A
petition challenging this claim has been filed with the Tax Court. The income
taxes at issue for these years is approximately $143.5 million (plus interest of
approximately $156.7 million as of August 31, 1998). In September 1998, the IRS
issued an administrative determination proposing that the U.S. Subsidiaries pay
additional taxes of approximately $96.0 million (plus interest of approximately
$51.2 million as of August 31, 1998) relating to disallowed deductions in
federal income tax returns for the fiscal years ended August 31, 1992, 1993 and
1994 based on the same issues. Entry of the Tax Court decision has been deferred
to allow Laidlaw and the IRS to engage in discussions to resolve the issues
relating to all fiscal years from 1986 through 1994. Should these negotiations
be unsuccessful, Laidlaw intends to appeal the opinion of the Tax Court and
vigorously contest the claimed tax deficiencies and interest charges for
subsequent fiscal years. If Laidlaw is ultimately required to pay all claims on
these issues for the fiscal years 1986 through 1994, the net after-tax cost to
Laidlaw (including interest as of August 31, 1998) could be approximately $500
million. After its 1994 fiscal year, Laidlaw established an entity in Ireland
that has provided some financing to certain of the U.S. Subsidiaries. Although
distinct and separate from the Holland entity, it is possible that similar tax
issues may be raised with respect to advances made by the Irish entity.
YEAR 2000 COMPLIANCE
Many computer systems experience problems handling dates beyond the year 1999.
Laidlaw has assessed the impact of the Year 2000 issue on its operations.
Laidlaw has formed a project management team to identify, evaluate and implement
the changes Laidlaw believes will resolve any Year 2000 issues that it may
experience. Laidlaw estimates that the cost to implement the necessary changes
will be $45 million (excluding the costs relating to changes to be implemented
by Greyhound), which Laidlaw believes will not have a significant impact on
Laidlaw. Laidlaw anticipates that completion of the necessary systems upgrading,
replacement and testing will occur no later than mid-calendar year 1999.
Greyhound estimates that the costs to implement the changes necessary to resolve
any problems it may experience with respect to the Year 2000 issues will be $15
to $20 million, which Laidlaw believes will not have a significant impact on
Laidlaw following the Merger. In addition, Laidlaw and Greyhound each have been
assured by their vehicle manufacturers that the Year 2000 issue will not affect
any of their buses. Laidlaw cannot assure you that there will
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<PAGE> 27
not be a delay in, or increased costs associated with, completing the changes
needed to address the Year 2000 issue by Laidlaw and Greyhound. Laidlaw's and/or
Greyhound's inability to implement such changes or failure to meet customer or
competitive requirements on a timely basis could adversely affect future results
of operations or the financial condition of Laidlaw.
COMPETITION
The transportation industry is highly competitive. Greyhound and Laidlaw
currently encounter competition from several sources in their scheduled
intercity bus transportation operations. The primary sources of competition for
passengers are automobile travel, low cost air travel from both regional and
national airlines and, in certain markets, regional bus companies and trains.
Neither Laidlaw nor Greyhound can assure you that Laidlaw will be able to
successfully compete against these sources of competition following the Merger.
Laidlaw's school bus operations compete with the few large companies and the
substantial number of smaller locally owned operators in this industry. In
addition, most school districts operate their own school bus systems.
The ambulance services industry is highly competitive. Laidlaw competes with
both the few large companies in this industry and with the substantial number of
smaller locally owned operators. Many municipal fire and paramedic departments
and hospitals operate their own ambulance systems. Emergency physician practice
management services are also subject to vigorous competition, generally based
upon cost, the ability to make available physicians capable of providing high
quality care and the reputation of the company among hospitals and physicians.
MARKET RISK
Laidlaw Common Shares are listed for trading on the NYSE, TSE and the Montreal
Exchange. The prices at which the Laidlaw Common Shares trade are subject to
fluctuation based on many factors. These factors may include general economic
and industry conditions, the actual performance of Laidlaw and investor
expectations of Laidlaw's performance. Laidlaw cannot guarantee that a holder of
Laidlaw Common Shares will be able to sell his or her Laidlaw Common Shares at
any particular price.
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THE SPECIAL MEETING
GENERAL
The Special Meeting will be held on , , 1998, starting at
: .m., local time, at , in , Texas. The
purpose of the Special Meeting is for the Greyhound stockholders to consider and
vote upon a proposal to adopt the Merger Agreement.
THE GREYHOUND BOARD BELIEVES THAT THE MERGER IS IN THE BEST INTERESTS OF
GREYHOUND AND ITS STOCKHOLDERS AND RECOMMENDS THAT GREYHOUND STOCKHOLDERS VOTE
"FOR" THE ADOPTION OF THE MERGER AGREEMENT.
VOTING AT THE SPECIAL MEETING
The holders of record of Greyhound Common Stock and Greyhound Preferred Stock as
of the close of business on the Record Date are entitled to receive notice of,
and to vote at, the Special Meeting. On the Record Date, there were
shares of Greyhound Common Stock outstanding held by stockholders of
record. On the Record Date, there were 2,400,000 shares of Greyhound Preferred
Stock outstanding held by stockholders of record.
The holders of a majority of the outstanding shares of Greyhound Common Stock
and Greyhound Preferred Stock on the Record Date, represented in person or by
proxy, will constitute a quorum for purposes of the Special Meeting. A quorum is
necessary to hold the Special Meeting. Any shares of Greyhound Common Stock held
in treasury by Greyhound or by any of its subsidiaries are not considered to be
outstanding for purposes of determining a quorum. Once a share is represented at
the Special Meeting, it will be counted for the purpose of determining a quorum
at the Special Meeting and any adjournment of the Special Meeting unless the
holder is present solely to object to the Special Meeting. However, if a new
record date is set for the adjourned meeting, then a new quorum will have to be
established.
Each outstanding share of Greyhound Common Stock and Greyhound Preferred Stock
on the Record Date is entitled to one vote at the Special Meeting. The Merger is
conditioned upon, among other things, the adoption of the Merger Agreement by
the affirmative vote of the holders of a majority of the outstanding shares of
Greyhound Common Stock and Greyhound Preferred Stock voting together as one
class. You must vote your shares either in person, by proxy or by telephone in
order for your shares to be included in the vote. Record holders of Greyhound
Common Stock and Greyhound Preferred Stock may vote by telephone by following
the instructions shown on the proxy card. Not voting has the same effect as
voting against adoption of the Merger Agreement. Your broker or nominee does not
have the right to vote your shares of Greyhound Stock. You must instruct your
broker on how to vote in order for your shares to be voted. It is important that
you instruct your broker or nominee on how to vote your shares of Greyhound
Stock in order for your shares to be represented at the Special Meeting.
Laidlaw and Laidlaw Acquisition have agreed to vote all of their shares of
Greyhound Common Stock "For" the adoption of the Merger Agreement. As of the
Record Date, Laidlaw and its subsidiaries owned 1,389,700 shares of Greyhound
Common Stock or approximately 2.3% of all outstanding shares of Greyhound Common
Stock on such date. As of the Record Date, the directors and executive officers
of Greyhound and their affiliates owned, in the aggregate, approximately %
of the outstanding shares of Greyhound Common Stock on such date. All such
directors and
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<PAGE> 29
executive officers have informed Greyhound that they intend to vote all of their
shares of Greyhound Common Stock "For" the adoption of the Merger Agreement.
PROXIES; REVOCATION
If you vote your shares of Greyhound Stock by signing a proxy, your shares will
be voted at the Special Meeting as you indicate on your proxy card. If no
instructions are indicated on your signed proxy card, your shares of Greyhound
Stock will be voted "For" the adoption of the Merger Agreement.
You may revoke your proxy at any time before the proxy is voted at the Special
Meeting. A proxy may be revoked prior to the vote at the Special Meeting by
submitting a written revocation to the Secretary of Greyhound, submitting a new
proxy dated after the date of the proxy that is being revoked or voting by
telephone at a later time. A proxy may also be revoked by voting in person at
the Special Meeting. However, simply attending the Special Meeting will not, in
itself, revoke a proxy.
Greyhound and Laidlaw will share the costs associated with preparing this Proxy
Statement/ Prospectus. Greyhound will pay the costs of soliciting proxies for
the Special Meeting. Further, certain officers and employees of Greyhound may
also solicit proxies by telephone or in person. Officers and other employees of
Greyhound will not be paid for soliciting proxies. Greyhound will also request
persons and entities holding shares in their names or in the names of their
nominees that are beneficially owned by others to send proxy materials to and
obtain proxies from such beneficial owners and will reimburse such holders for
their reasonable expenses in performing such services. Greyhound has retained
Kissel-Blake Inc. to assist it in the solicitation of proxies using the means
referred to above, at an anticipated cost of $11,500, plus reimbursement of
out-of-pocket expenses.
ADJOURNMENTS
Although it is not expected, the Special Meeting may be adjourned for the
purpose of soliciting additional proxies or for other reasons. Any adjournment
may be made by approval of the holders of a majority of the outstanding shares
of Greyhound Stock present in person or represented by proxy at the Special
Meeting (whether or not a quorum exists) without notice other than by an
announcement made at the Special Meeting. Greyhound does not currently intend to
seek a postponement or adjournment of the Special Meeting. Any postponement or
adjournment of the Special Meeting for the purpose of soliciting additional
proxies will allow the Greyhound stockholders who have already sent in their
proxies to revoke them at any time prior to their use.
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<PAGE> 30
THE PARTIES
GREYHOUND
Greyhound is the only nationwide provider of scheduled intercity bus
transportation in the United States. Greyhound serves the value-oriented
customer by connecting rural and urban areas throughout the United States,
providing scheduled passenger service to more than 2,600 destinations with a
fleet of 2,500 buses and 1,650 sales locations. Greyhound also provides package
express delivery service, charter bus service and, in many terminals, food
service. For the year ended December 31, 1997 and the nine months ended
September 30, 1998, Greyhound generated total operating revenues of $771.1
million and $636.1 million, respectively and net profits (or losses) of $(16.9)
million and $31.1 million, respectively.
The principal executive offices of Greyhound are located at 15110 N. Dallas
Parkway, Suite 600, Dallas, Texas 75248, and its telephone number is (972)
789-7000.
LAIDLAW
Laidlaw is the largest school bus operator in North America, operating primarily
under the names Laidlaw Transit, Mayflower Contract Services and National School
Bus Services. Laidlaw also operates municipal, intercity transit and charter
buses. In October 1997, Laidlaw acquired Greyhound Canada Transportation Corp.,
which operates intercity buses in Canada and is unrelated to Greyhound. Laidlaw
is the largest ambulance operator in the United States, operating primarily
under the name American Medical Response. Laidlaw also provides services to
hospital emergency departments in the United States, primarily operating under
the name EmCare.
For the year ended August 31, 1998, Laidlaw's passenger services business and
healthcare services business generated revenues of $1,646.3 million and $1,659.1
million, respectively, and income from operations of $196.0 million and $174.1
million, respectively.
Laidlaw owns approximately 35% of the outstanding shares of common stock of
Safety-Kleen Corp., formerly Laidlaw Environmental Services, Inc., a hazardous
waste services company. In April 1998, Laidlaw Environmental Services, Inc.
acquired Safety-Kleen Corp. in a transaction valued at approximately $2.2
billion. Prior to this transaction, Laidlaw's ownership was approximately 67%.
Effective March 1, 1998, Laidlaw ceased to consolidate the hazardous waste
services business and began to account for it using the equity method.
For the year ended August 31, 1998, Laidlaw generated revenues of $3,690.2
million, income from operations of $421.7 million and net income (including a
dilution gain of $100.7 million) of $346.0 million.
The percentages of Laidlaw's revenue from its business segments during the last
three fiscal years were as follows:
<TABLE>
<CAPTION>
YEAR ENDED, AUGUST 31 1998 1997 1996
--------------------- ----- ----- -----
<S> <C> <C> <C>
Passenger services.......................................... 44.6% 45.0% 48.6%
Emergency healthcare services............................... 45.0% 31.6% 20.2%
Hazardous waste services.................................... 10.4% 23.4% 31.2%
</TABLE>
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<PAGE> 31
In the last three fiscal years, the percentage of revenues generated by
Laidlaw's U.S. operations has been 90.3%, 90.3%, and 90.1%, respectively.
Laidlaw intends to continue expansion throughout North America in each of its
core businesses.
The principal executive offices of Laidlaw are located at 3221 North Service
Road, Burlington, Ontario, Canada L7R 3Y8, and its telephone number is (905)
336-1800.
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<PAGE> 32
THE MERGER
BACKGROUND OF THE MERGER
Laidlaw owns and operates a number of passenger transportation businesses.
Laidlaw is the largest school bus operator in North America. Laidlaw also
operates municipal, intercity and charter buses, as well as ambulances. In
October 1997, Laidlaw acquired Greyhound Canada Transportation Corp. ("GC"),
which is unrelated to Greyhound. The GC acquisition significantly expanded
Laidlaw's intercity bus operations.
Laidlaw has pursued a strategy of acquiring companies to expand its
transportation businesses, and considered Greyhound as a potential acquisition
candidate for some time. Laidlaw's interest in acquiring Greyhound increased
following its acquisition of GC. At meetings of the Laidlaw Board held in
January and April 1998, James R. Bullock, Laidlaw's President and Chief
Executive Officer, reviewed with the Laidlaw Board several transportation
companies, including Greyhound, as potential acquisition candidates. Prior to
initiating discussions with Greyhound, Laidlaw purchased 1.4 million shares of
Greyhound Common Stock in open-market transactions.
Greyhound's business is capital intensive and Greyhound has pursued a
growth-oriented strategy, including acquisitions, since its reorganization in
1994. From time to time, representatives of Greyhound have considered various
acquisitions, joint ventures, recapitalizations, business combination
transactions and other strategic alternatives intended to further its growth
strategy and to maximize stockholder value, and had discussions with
representatives of other companies relating to the foregoing. While Greyhound
was not pursuing a business combination transaction or sale of Greyhound at the
time Laidlaw initiated discussions with Greyhound, the Greyhound Board was
willing to consider such a transaction if it appeared to be in the best
interests of Greyhound and its stockholders.
On May 21, 1998, Mr. Bullock and Craig R. Lentzsch, Greyhound's President and
Chief Executive Officer, met at Mr. Bullock's request for the stated purpose of
exchanging views on the intercity bus transportation industry. At that meeting,
Mr. Bullock also indicated to Mr. Lentzsch that Laidlaw desired to explore a
possible business combination transaction with Greyhound. However, Mr. Bullock
did not indicate a proposed price or form of consideration, although he did
indicate that he contemplated a transaction structure in which Laidlaw Common
Shares would be used for all or a substantial part of the consideration. Mr.
Lentzsch informed Mr. Bullock that, while Greyhound was not for sale, he would
discuss Mr. Bullock's indication of interest with Thomas G. Plaskett, the
Chairman of the Board of Greyhound.
From time to time over the next several weeks, Messrs. Lentzsch and Plaskett
discussed the possibility of entering into discussions with Laidlaw regarding a
possible business combination transaction. They also had informal discussions
with the members of the Executive Committee of the Greyhound Board in this
regard. A committee of the Greyhound Board (the "Greyhound Board Committee") was
then formed to consider any proposal that Laidlaw might make. The members of the
Greyhound Board Committee were Mr. Plaskett, A.A. Meitz and Stephen M. Peck,
each of whom is a non-employee director of Greyhound and was believed to have
experience and expertise that could be useful in considering a possible business
combination transaction. After discussions among the Greyhound Board Committee
members, Greyhound retained Bear Stearns to serve as Greyhound's financial
advisor and Jones, Day, Reavis & Pogue ("Jones Day") to act as Greyhound's legal
advisor in connection with the matter.
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<PAGE> 33
Messrs. Lentzsch and Bullock spoke by telephone on a number of occasions
following their initial meeting in May 1998. On June 26, 1998, Mr. Bullock and
other senior management personnel of Laidlaw met with the members of the
Greyhound Board Committee, Mr. Lentzsch and other senior management personnel of
Greyhound to review their respective businesses and strategic plans. The two
companies' representatives also discussed, in general terms, the manner by which
the two companies could be combined, although no specific terms of such a
transaction were proposed at this meeting. However, Mr. Bullock continued to
suggest consideration of a transaction using Laidlaw Common Shares for all or
part of the consideration.
The Greyhound Board met on June 29, 1998. At this meeting, the members of the
Greyhound Board Committee and Mr. Lentzsch reviewed the discussions to date with
Laidlaw. It was the consensus of the Greyhound Board that a possible business
combination transaction with Laidlaw should continue to be explored.
The parties entered into a confidentiality agreement and, over the course of the
next six weeks, representatives of the parties exchanged information relating to
their respective businesses. During that period, the members of the Greyhound
Board Committee were kept apprised of the status of the discussions between
Greyhound and Laidlaw. In light of, among other factors, the increasing
volatility of the securities markets, it was the consensus of the Greyhound
Board Committee that it would be preferable for the consideration in any such
transaction to be cash, or if Laidlaw Common Shares were used, that the
transaction be structured so that Greyhound stockholders would be protected
against declines in stock market prices to the extent reasonably possible.
The Laidlaw Board met on July 9, 1998. At this meeting, Mr. Bullock reviewed
with the Laidlaw Board the status of discussions with Greyhound. The Laidlaw
Board agreed that Mr. Bullock should continue his discussions with Greyhound's
representatives.
On August 13, 1998, Messrs. Plaskett and Lentzsch met with Mr. Bullock.
Following a general discussion of recent events, including a U.S. tax court
decision adverse to Laidlaw that had received substantial coverage in the
financial media (see "Risk Factors -- Tax Litigation"), Mr. Bullock outlined a
possible business combination transaction involving the conversion of each share
of Greyhound Common Stock into two-thirds of a Laidlaw Common Share. Laidlaw
Common Shares were trading at $9 5/16 per share at that time (based on the
closing sale price on August 12, 1998), making the implied value of Mr.
Bullock's indication $6.21 per share of Greyhound Common Stock. The closing
sales price of the Greyhound Common Stock on August 12, 1998 was $4 13/16.
Messrs. Plaskett and Lentzsch indicated that they did not believe the Greyhound
Board would be willing to continue to pursue discussions of a possible business
combination transaction on the terms indicated by Mr. Bullock in light of, among
other factors, the implicit value of the transaction to Greyhound's stockholders
as well as the recent volatility in the market price for Laidlaw Common Shares,
in part attributable to the adverse U.S. tax court decision and in the
securities markets generally. Mr. Bullock indicated that he would consider the
matter further.
On September 8, 1998, Messrs. Bullock, Lentzsch and Plaskett and other
representatives of Laidlaw and Greyhound, including representatives of Bear
Stearns, Jones Day and Laidlaw's financial advisor, Merrill Lynch, met to
determine whether there was a substantial basis to continue discussions of a
possible business combination transaction involving Laidlaw and Greyhound. In
that meeting, Mr. Bullock initially indicated a stock-for-stock transaction with
a value of $6.00 to $7.00 per share of Greyhound Common Stock. After further
negotiations, he modified his indication to provide for a transaction valued at
$7.00 per share of Greyhound Common Stock in cash, with Laidlaw having the
option to pay up to $4.00 of the purchase price with Laidlaw Common Shares. In
response to
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<PAGE> 34
Greyhound's continued desire for a transaction structured to preserve the dollar
value of the transaction to the extent reasonably practicable, after discussing
various alternatives, Laidlaw's representatives proposed a structure in which
(i) Laidlaw would be required to announce whether it intended to pay any portion
of the Merger Consideration with Laidlaw Common Shares at least five trading
days prior to the meeting of Greyhound stockholders to be called to vote on the
transaction, (ii) the Laidlaw Common Shares would be valued based on the
weighted average sale price of the Laidlaw Common Shares for the five trading
days immediately prior to the fifth trading day before such stockholder meeting,
(iii) the transaction would close promptly after the vote of the Greyhound
stockholders, and (iv) the transaction would be taxable to Greyhound
stockholders for U.S. federal income tax purposes regardless of whether Laidlaw
elected to pay a portion of the merger consideration in Laidlaw Common Shares.
With regard to the taxable nature of the proposed transaction, Laidlaw's
representatives indicated that a tax-free structure would require that Laidlaw
substantially reduce the stated value of the merger consideration because of the
adverse effect that a tax-free transaction would have on the post-merger value
of the transaction to Laidlaw. The structure also was responsive to concerns
expressed by Messrs. Plaskett and Lentzsch at the August 13, 1998 meeting with
Mr. Bullock that they believed that the Greyhound Board would prefer a structure
in which the risk that the transaction consideration would materially decline in
value between the time of announcement and completion of a transaction was
minimized. Messrs. Plaskett and Lentzsch indicated at the September 8th meeting
that they would be willing to review Laidlaw's proposal with the Greyhound Board
Committee and the parties agreed to continue with their respective due diligence
investigations and consideration of a possible business combination transaction.
Over the succeeding four weeks, representatives of Greyhound and Laidlaw met, in
person and by telephone, to exchange information, to carry out due diligence
reviews and to discuss the terms of a definitive agreement relating to the
possible business combination transaction.
At its regularly scheduled meeting on September 15, 1998, the Greyhound Board
reviewed the status of the discussions between Greyhound and Laidlaw. At this
meeting, representatives of Bear Sterns made a presentation regarding the
analysis they had performed to date with respect to a possible business
combination transaction with Laidlaw. At the conclusion of this meeting, the
Greyhound Board authorized continued discussions with Laidlaw.
On September 30, 1998, the Laidlaw Board met to review the status of the
discussions between Laidlaw and Greyhound. Mr. Bullock reviewed the results of
ongoing due diligence investigations and the financial aspects of a possible
transaction. The Laidlaw Board authorized Mr. Bullock to continue the
discussions with Greyhound.
On October 9, 1998, Messrs. Bullock, Plaskett and Lentzsch met at Mr. Bullock's
request. Mr. Bullock informed Messrs. Plaskett and Lentzsch that, due to the
continuing volatility in the equity and debt markets, as well as recent changes
in the outlook for the economy generally, he no longer believed that the Laidlaw
Board would support a proposal to acquire Greyhound valued at $7.00 per share of
Greyhound Common Stock. At that time, Greyhound Common Stock was trading at
$3 5/8. Mr. Bullock indicated that he believed that the Laidlaw Board probably
would support a proposal valued at $6.00 per share of Greyhound Common Stock, so
long as it was structured along the lines indicated by Mr. Bullock in the
September 8, 1998 meeting. Messrs. Lentzsch and Plaskett indicated to Mr.
Bullock that they did not believe the Greyhound Board would approve a
transaction at that price level, but that some reduction from the $7.00 price
might be possible. Messrs. Bullock, Plaskett and Lentzsch agreed to further
consider the matter.
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On October 11, 1998, Messrs. Bullock and Lentzsch again discussed a possible
business combination transaction. In that discussion, Mr. Lentzsch indicated
that, based on discussions with the members of the Greyhound Board Committee and
Mr. Plaskett's discussions with other Greyhound Board members, he believed that
the Greyhound Board Committee and the Greyhound Board might support a
transaction valued at $6.50 per share of Greyhound Common Stock, but that he
personally would not recommend a transaction at a lower price. Mr. Bullock
indicated that he was not certain what the Laidlaw Board would decide on this
issue, but indicated that he would discuss the transaction with the Laidlaw
Board and, if authorized, would make a definitive proposal following a Laidlaw
Board meeting scheduled for October 14, 1998. Mr. Lentzsch inferred from the
conversation that Mr. Bullock personally would support a transaction at $6.50
per share of Greyhound Common Stock, but it was unclear whether the Laidlaw
Board would authorize a transaction at that valuation.
The Greyhound Board Committee and Mr. Lentzsch considered the alternatives that
might be available to Greyhound in light of the indication by Mr. Bullock that
Laidlaw would only be willing to proceed at a price lower than its original
indication of $7.00 per share. The principal alternatives considered were the
continued pursuit of Greyhound's business plan as an independent company and the
initiation of discussions with other parties. It was the consensus of the
Greyhound Board Committee and Greyhound's senior management that the continued
pursuit of a possible business combination transaction would be desirable in
light of Greyhound's substantial capital requirements and the recent
deterioration of the capital markets. Given the nature of Greyhound's business,
it was believed that the universe of potential parties that would be willing to
consider a potential transaction with Greyhound was relatively limited and that
Laidlaw was likely to be the best potential buyer for Greyhound in light of,
among other factors, its ownership of GC and its school bus business, which
created possible synergies in a merger with Greyhound. The Greyhound Board
Committee and senior management of Greyhound also believed that it was unlikely
that another strategic partner would be willing to pursue a business combination
transaction on terms superior to those believed to be available from Laidlaw. In
this regard, in early October 1998, representatives of another transportation
company had indicated a preliminary interest in pursuing discussions regarding a
possible business combination transaction with Greyhound, but had not received
any confidential information relating to Greyhound. In addition, representatives
of the other party had indicated a price range substantially below the $7.00 per
share of Greyhound Common Stock price indicated by Laidlaw and below the $6.50
price which, based on discussions on October 8th and 11th, Greyhound believed
would ultimately be proposed by Laidlaw. It was the consensus of the Greyhound
Board Committee and Greyhound's senior management that the other party did not
have sufficient synergies and sources of low-cost capital to make reasonably
possible a proposal with a value greater than that indicated by Laidlaw and
that, if Greyhound were to pursue substantive discussions with that party, there
was a substantial risk that the discussions with Laidlaw would be adversely
affected. Accordingly, it was the consensus of the Greyhound Board Committee and
Greyhound's senior management not to pursue discussions with the other party
until the negotiations with Laidlaw were concluded.
In order to prepare for the possibility of receiving a definitive proposal from
Laidlaw, on October 13, 1998, the Greyhound Board held a special meeting in
which certain members of Greyhound's senior management as well as
representatives of Bear Stearns and Jones Day participated. The discussions at
this meeting were wide-ranging and extensive, and included (i) a review by
Greyhound's senior management of the recent discussions with representatives of
Laidlaw, (ii) a presentation by representatives of Bear Stearns regarding the
equity and debt markets generally, and (iii) presentations by Greyhound's senior
management of the effects of the capital markets and economic conditions
generally on Greyhound's financial condition and future prospects, as well as
its
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potential impact on Greyhound's ability to meet its current business plan.
Representatives of Bear Stearns also reviewed, at the request of the Greyhound
Board, Bear Stearns' analysis of a possible transaction involving Laidlaw based
on various price ranges. The Greyhound Board also considered other strategic
alternatives available to Greyhound, including continuing to pursue its
strategic plan as an independent company, as well as pursuing merger discussions
with other potential parties. Following further discussion, the Greyhound Board
agreed to meet again on October 15, 1998, Mr. Bullock having indicated to Mr.
Lentzsch that the Laidlaw Board was expected to consider the matter by October
14, 1998.
On October 14, 1998, the Laidlaw Board authorized Mr. Bullock to propose a
business combination transaction with Greyhound in which each share of Greyhound
Common Stock would be converted into $6.50 in cash, with Laidlaw having an
option to pay up to $4.00 in Laidlaw Common Shares on the basis previously
proposed by Laidlaw, and with the Greyhound Preferred Stock receiving the same
consideration as the Greyhound Common Stock multiplied by the then-current
conversion ratio for the Greyhound Preferred Stock. Following the Laidlaw Board
meeting, Mr. Bullock informed Mr. Lentzsch of the proposal. Mr. Lentzsch
informed Mr. Bullock that Laidlaw's proposal would be considered by the
Greyhound Board the next day.
The Greyhound Board met on October 15, 1998, to review Laidlaw's proposal with
the assistance of Greyhound's senior management and Greyhound's financial and
legal advisors, Bear Stearns and Jones Day. All members of the Greyhound Board
were present at the meeting, except for one director who, due to prior
commitments, was able to participate in only a portion of the meeting.
At the October 15, 1998 meeting, the Greyhound Board received presentations and
discussed various matters, including (i) a review by Greyhound's senior
management of the course of the discussions with Laidlaw, (ii) a review by
Greyhound's senior management of management's views as to Greyhound's business,
financial condition, results of operations and prospects, (iii) a presentation
by Bear Stearns regarding its financial analysis of the proposed Merger
including an analysis of Laidlaw, (iv) a presentation by representatives of
Jones Day regarding the duties of directors in this context, and (v) a
presentation by representatives of Jones Day regarding the terms of the draft
Merger Agreement and related documentation, including the so-called no-shop and
break-up fee provisions. Representatives of Jones Day also specifically reviewed
the provisions in the draft Merger Agreement and other aspects of the
transaction in which members of the Greyhound Board or management could be said
to have interests that were different from or in addition to the interests of
Greyhound stockholders generally (see "The Merger -- Interests of Certain
Persons in the Merger"). The Greyhound Board also received a presentation from
representatives of Jones Day regarding the recent U.S. tax case adverse to
Laidlaw decided in July of 1998 (see "Risk Factors -- Tax Litigation"). In
addition, Greyhound's senior management reviewed other matters pertaining to the
possible transaction, including the due diligence reviews that had been
undertaken and their perspective on Laidlaw's ability to finance the
transaction. The Greyhound Board then discussed the proposed transaction in
detail. At the conclusion of the discussions, a representative of Bear Stearns
orally informed the Greyhound Board, which oral advice was subsequently
confirmed in writing, that, in Bear Stearns' opinion, the consideration to be
received by the Greyhound stockholders in the Merger was fair to the Greyhound
stockholders from a financial point of view. At that point, the representatives
from Bear Stearns and Jones Day were excused from the meeting and the Greyhound
Board further discussed the possible transaction. Thereafter, the Greyhound
Board, by unanimous vote of all directors present (one director being absent
from the portion of the meeting at which the vote was taken), approved the
Merger Agreement and the transactions contemplated thereby.
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The Laidlaw Board approved the Merger Agreement on October 16, 1998. Thereafter,
the Merger Agreement was finalized and executed and the transaction was publicly
announced prior to the commencement of trading on October 19, 1998.
Following the public announcement of the Merger, lawsuits were filed by certain
persons that purport to be Greyhound stockholders on behalf of themselves and
certain other Greyhound stockholders. In these lawsuits, the plaintiffs allege,
among other things, that certain provisions of the Merger Agreement violate
Delaware law and that the Greyhound Board breached its fiduciary duties in
approving the Merger. See "The Merger -- Certain Litigation."
Following the announcement of the proposed Merger, certain holders of Greyhound
Preferred Stock contacted representatives of both Greyhound and Laidlaw
requesting that the Merger Agreement be modified to permit the Greyhound
Preferred Stock to remain outstanding in the Merger. While both Laidlaw and
Greyhound believe that the treatment of the Greyhound Preferred Stock originally
proposed was in accordance with the terms thereof and applicable law, the
parties were willing to modify the Merger Agreement to permit the Greyhound
Preferred Stock to remain outstanding following the Merger. Inasmuch as such
modification did not adversely affect the common stockholders of either
Greyhound or Laidlaw, the modification was approved and publicly announced on
November 5, 1998. In connection with the approval of the modification of the
Merger Agreement, Bear Stearns reissued its opinion as of October 16, 1998
relating to the fairness, from a financial point of view, of the Merger
Consideration to the Greyhound stockholders.
GREYHOUND'S REASONS FOR THE MERGER
The Greyhound Board has, by the unanimous vote of all directors present (one
director being absent from the Greyhound Board meeting at which the Merger
Agreement was approved), determined that the Merger is fair to and in the best
interests of Greyhound and its stockholders. Accordingly, the Greyhound Board
approved the Merger Agreement and recommended that the Greyhound stockholders
adopt the Merger Agreement. The Greyhound Board considered a number of factors
prior to approving the Merger, including:
- the Greyhound Board's understanding of the transportation industry in
North America and the strategic options available to Greyhound;
- the business, operations, financial position, personnel and prospects of
Greyhound;
- Greyhound's strategic plan as an independent company;
- the possible difficulties in continuing to increase Greyhound's revenues
and earnings if Greyhound were to remain independent as a result of a
number of factors, including Greyhound's ability to continue funding its
capital expenditure requirements on favorable terms;
- presentations by, and discussions with, senior management of Greyhound
and representatives of Bear Stearns and Jones Day regarding the terms of
the Merger Agreement and the results of the due diligence review of
Laidlaw conducted by Greyhound's management, Bear Stearns and Jones Day;
- the advice of Bear Stearns described below under "Opinion of Greyhound's
Financial Advisor" and its oral opinion (which was subsequently confirmed
in writing) to the effect that the Merger Consideration is fair to the
Greyhound stockholders from a financial point of view;
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- that the Merger Consideration to be received by holders of Greyhound
Common Stock was (i) 92.6% higher than the lowest closing sale price of
the Greyhound Common Stock over the prior 12-month period, (ii) 1.0%
higher than the highest closing sale price of the Greyhound Common Stock
over the prior 12-month period, and (iii) 49% higher than the closing
sale price of the Greyhound Common Stock at the close of business on
October 14, 1998;
- that the Merger would be a taxable transaction to the holders of
Greyhound Common Stock and that at least $2.50 of the per share Merger
Consideration would be paid in cash which could be used to satisfy all or
some portion of any tax liability resulting from the Merger;
- that the Merger Agreement does not prohibit Greyhound from participating
in discussions or negotiations with, or furnishing information (pursuant
to a confidentiality agreement) to, any person or entity if the Greyhound
Board concludes (after consultation with its financial advisor) that such
person or entity has made or is reasonably likely to make a bona fide
proposal for a transaction which it believes may be more favorable than
the Merger from a financial point of view (a "Superior Proposal");
- the ability of the Greyhound Board to terminate the Merger Agreement upon
payment of the Termination Fee if the Greyhound Board decides to approve
a Superior Proposal;
- the financial condition of Laidlaw and the ability of Laidlaw to complete
the Merger in a timely manner; and
- the regulatory approvals required in connection with the Merger,
including that receipt of STB approval was not a condition to the
obligations of Laidlaw or Greyhound to complete the Merger.
In addition, the Greyhound Board also considered that Laidlaw has the option to
pay a significant part of the Merger Consideration with Laidlaw Common Shares.
Accordingly, the Greyhound Board considered the following additional factors,
assuming Laidlaw pays part of the Merger Consideration with Laidlaw Common
Shares:
- the business, operations, financial position, personnel and prospects of
Laidlaw;
- the Merger would enable the Greyhound stockholders to own shares in
Laidlaw, which is a company with more diverse businesses than those of
Greyhound. At the same time, ownership of Laidlaw Common Shares would
afford Greyhound stockholders the opportunity to continue to participate
in the long-term growth and appreciation of the bus transportation
business;
- the fit between the respective businesses of Greyhound and Laidlaw;
- the potential for cost savings from combining Greyhound with Laidlaw,
which the Greyhound Board believes would have a favorable impact on the
long-term value for the holders of Laidlaw Common Shares;
- certain risks associated with Laidlaw and the Merger described under
"Risk Factors," including the adverse U.S. Tax Court decision and its
possible effect on Laidlaw's future earnings;
- the historical trading prices of Laidlaw Common Shares; and
- the trading volume of Laidlaw Common Shares, which would provide
Greyhound stockholders with greater liquidity in their investment than
they have had with their shares of Greyhound Common Stock.
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In light of the Greyhound Board's knowledge of the business and operations of
Greyhound and its business judgment, the Greyhound Board considered and
evaluated each of the factors listed above during the course of its
deliberations prior to approving the Merger Agreement. Each of the factors
listed above was believed by the Greyhound Board to support the decision to
adopt the Merger Agreement, except for the factor relating to the taxable nature
of the Merger, which was specifically negotiated in connection with the
transaction. In view of the wide variety of factors considered in connection
with its evaluation of the Merger, the Greyhound Board found it impracticable
to, and did not, quantify or otherwise attempt to assign relative weights to the
specific factors considered in making its determinations.
After considering all of the foregoing factors, the Greyhound Board concluded
that the Merger is fair to and in the best interests of Greyhound and its
stockholders. The Greyhound Board believes that the factors listed above, when
considered together, support the fairness of the Merger to Greyhound and its
stockholders. THE GREYHOUND BOARD BELIEVES THAT SUCH FACTORS SUPPORT ITS
RECOMMENDATION THAT THE GREYHOUND STOCKHOLDERS VOTE "FOR" THE ADOPTION OF THE
MERGER AGREEMENT.
OPINION OF GREYHOUND'S FINANCIAL ADVISOR
Greyhound retained Bear Stearns to act as its exclusive financial advisor and to
render an opinion (the "Bear Stearns Opinion") to the Greyhound Board as to the
fairness of the Merger Consideration, from a financial point of view, to the
Greyhound stockholders. Bear Stearns is an internationally recognized investment
banking firm that has previously provided investment banking services to
Greyhound and Laidlaw and is continually engaged in the valuation of businesses
and their securities in connection with mergers and acquisitions and other
purposes.
At the Greyhound Board meeting held on October 15, 1998, Bear Stearns presented
its analysis of the Merger. Bear Stearns subsequently delivered its written
opinion to the Greyhound Board dated as of October 16, 1998 to the effect that,
as of such date, the Merger Consideration was fair, from a financial point of
view, to the Greyhound stockholders.
The full text of the Bear Stearns Opinion is attached as Appendix B to this
Proxy Statement/ Prospectus. The Bear Stearns Opinion is intended for the
benefit and use of the Greyhound Board in its evaluation of the Merger.
Greyhound stockholders are urged to, and should, read the Bear Stearns Opinion
carefully in its entirety in conjunction with this Proxy Statement/Prospectus
for the assumptions made, matters considered and limits of the review by Bear
Stearns. The Bear Stearns Opinion addresses only the fairness of the Merger
Consideration, from a financial point of view, to the Greyhound stockholders and
does not constitute a recommendation to the Greyhound Board or to any Greyhound
stockholder as to how to vote in connection with the Merger. The Bear Stearns
Opinion does not address Greyhound's underlying business decision to pursue the
Merger. The summary of the Bear Stearns Opinion set forth in this Proxy
Statement/Prospectus is qualified in its entirety by reference to the full text
of such opinion.
In rendering its fairness opinion, Bear Stearns (i) reviewed the Merger
Agreement; (ii) reviewed Greyhound's Annual Reports to Shareholders and Annual
Reports on Form 10-K for the fiscal years ended December 31, 1995 through 1997,
and its Quarterly Reports on Form 10-Q for the quarters ended March 31, 1998 and
June 30, 1998; (iii) reviewed certain operating and financial information
relating to Greyhound's business and prospects, including internal financial
projections, provided to Bear Stearns and reviewed for Bear Stearns by
Greyhound's management; (iv) met with certain members of Greyhound's senior
management to discuss Greyhound's operations, historical financial statements
and future prospects; (v) reviewed Laidlaw's Annual Reports to Shareholders and
Annual
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Reports on Form 10-K for the fiscal years ended August 31, 1995 through 1997,
its Quarterly Reports on Form 10-Q for the quarters ended November 30, 1997,
February 28, 1998 and May 31, 1998, and a draft of its consolidated financial
statements for the fiscal year ended August 31, 1998; (vi) reviewed certain
operating and financial information relating to Laidlaw's business and
prospects, including internal financial projections, provided to Bear Stearns
and reviewed for Bear Stearns by Laidlaw's management; (vii) met with certain
members of Laidlaw's senior management to discuss Laidlaw's operations,
historical financial statements and future prospects; (viii) reviewed the
historical prices and trading volumes of the Greyhound Common Stock and Laidlaw
Common Shares; (ix) reviewed publicly available financial data, stock market
performance data and valuation parameters of companies which Bear Stearns deemed
generally comparable to Greyhound and Laidlaw; (x) reviewed the financial terms
of recent acquisitions of companies which Bear Stearns deemed generally
comparable to the Merger; and (xi) conducted such other studies, analyses,
inquiries and investigations as Bear Stearns deemed appropriate.
In the course of its review, Bear Stearns relied upon and assumed, without
assuming any responsibility for independent verification, the accuracy and
completeness of all of the financial and other information (including estimates
and projections) provided to, discussed with, or reviewed by or for Bear Stearns
by Greyhound and Laidlaw or publicly available for purposes of its opinion,
including the adequacy of Laidlaw's reserves relating to loss contingencies.
Bear Stearns further relied upon the assurances of senior management of both
Greyhound and Laidlaw that they were unaware of any facts that would make the
information, estimates and projections provided to, discussed with, or reviewed
by or for Bear Stearns incomplete, inaccurate or misleading. With respect to
Greyhound's and Laidlaw's internal financial projections and estimates of
potential synergies that could be achieved upon consummation of the Merger, Bear
Stearns assumed that they had been reasonably prepared on bases reflecting the
best currently available estimates and judgments of the senior managements of
Greyhound and Laidlaw as to the expected future performance of Greyhound and
Laidlaw. Bear Stearns expressed no view as to such information, or the
assumptions on which they were based. For purposes of rendering its opinion,
Bear Stearns further assumed that the matter of Laidlaw's U.S. Subsidiaries
before the Tax Court would not have a material adverse effect on Laidlaw's
financial condition, results of operations, business or prospects. In arriving
at its opinion, Bear Stearns did not perform or obtain any independent appraisal
of the assets or liabilities of Greyhound or Laidlaw, nor had Bear Stearns been
furnished with any such appraisals. For purposes of rendering its opinion, Bear
Stearns assumed, in all respects material to its analysis, that the Merger will
be consummated substantially in accordance with the terms set forth in the
Merger Agreement, that the representations and warranties of each party
contained in the Merger Agreement were true and correct, that each party will
perform all of the covenants and agreements required to be performed by it under
the Merger Agreement and all conditions to the consummation of the Merger will
be satisfied without waiver by either Greyhound or Laidlaw. Bear Stearns did not
express any opinion as to the price or range of prices at which the Laidlaw
Common Shares may trade following the Merger. The Bear Stearns Opinion is
necessarily based on economic, market and other conditions, and the information
made available to it, as of October 16, 1998, except with respect to the Merger
Agreement which was amended and restated as of November 5, 1998.
The following is a brief summary of financial analyses used by Bear Stearns in
connection with rendering its opinion to the Greyhound Board.
Stock Trading History. Bear Stearns reviewed the historical market prices and
trading volumes of Greyhound Common Stock and Laidlaw Common Shares during the
12-month period prior to the delivery of the Bear Stearns Opinion. Bear Stearns
observed that the Merger Consideration to be
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received by the holders of Greyhound Common Stock was (i) 62.5% higher than the
closing sale price of Greyhound Common Stock on October 13, 1998, (ii) 92.6%
higher than the lowest closing sale price of Greyhound Common Stock over the
prior 12 months and (iii) 1.0% higher than the highest closing sale price of
Greyhound Common Stock over the prior 12 months.
Comparable Company Analysis. Bear Stearns reviewed and compared the financial
and stock market performance of Greyhound to the financial and stock market
performance of certain publicly-traded companies in the surface transportation
industry that Bear Stearns believed were generally comparable to Greyhound (the
"Comparable Companies"). The Comparable Companies included Laidlaw, Coach USA,
Inc. ("Coach USA") and Ryder System, Inc. ("Ryder"). Bear Stearns also reviewed
and compared similar data for a composite of six regional airline companies (the
"Regional Airlines") including ASA Holdings, Inc., Comair Holdings, Inc., Mesa
Air Group, Inc., Mesaba Holdings, Inc., Midwest Express Holdings, Inc. and
SkyWest, Inc. For each of the Comparable Companies and the Regional Airlines,
Bear Stearns reviewed certain publicly available financial data, including
revenue, earnings before interest, taxes, depreciation and amortization
("EBITDA"), earnings before interest and taxes ("EBIT"), net income and earnings
per share ("EPS") over various time periods as well as certain valuation
statistics, financial ratios, published earnings estimates for 1998 and 1999 and
stock market information.
For each of the Comparable Companies and the Regional Airlines composite, Bear
Stearns calculated the ratio of their equity value plus debt less cash and cash
equivalents ("Enterprise Value") as of October 13, 1998 to their respective
EBITDA during the most recent last 12-month period ("LTM") and the ratios of
their stock prices as of October 13, 1998 to their respective LTM earnings per
share and projected 1998 and 1999 earnings per share. The ratio of Enterprise
Value to LTM EBITDA was 6.7x, 5.9x, 4.0x and 5.5x for Laidlaw, Coach USA, Ryder
and the Regional Airlines composite, respectively. The ratio of the transaction
value implied by the Merger Consideration to Greyhound's LTM EBITDA was 9.5x.
The ratio of stock price to LTM earnings per share was 12.0x, 9.5x, 10.2x and
12.0x for Laidlaw, Coach USA, Ryder and the Regional Airlines composite,
respectively. The ratio of stock price to projected 1998 earnings per share was
11.5x, 7.9x, 9.6x and 11.2x for Laidlaw, Coach USA, Ryder and the Regional
Airlines composite, respectively. The ratio of the Merger Consideration to
Greyhound's fully-taxed estimated 1998 earnings per share was 72.2x. The ratio
of stock price to projected 1999 earnings per share was 10.4x, 6.3x, 8.1x and
9.4x for Laidlaw, Coach USA, Ryder and the Regional Airlines composite,
respectively. The ratio of the Merger Consideration to Greyhound's estimated
1999 earnings per share ranged from 21.0x to 40.6x, depending on the assumed
underlying management forecast. Bear Stearns observed that the Merger
Consideration produced multiples that exceeded the trading multiples of the
Comparable Companies and the Regional Airlines composite.
Bear Stearns chose the Comparable Companies and Regional Airlines because they
have general business, operating and financial characteristics similar to those
of Greyhound. However, Bear Stearns noted that no company used in the foregoing
analysis is identical to Greyhound. Accordingly, Bear Stearns did not rely
solely on the mathematical results of the analysis, but also made qualitative
judgments concerning differences in financial and operating characteristics of
Greyhound, the Comparable Companies and the Regional Airlines that could affect
the values of each.
Present Value of Hypothetical Stock Price Analysis. Bear Stearns performed an
analysis of what a share of Greyhound Common Stock could be worth in the future
if Greyhound continued to operate as a stand-alone entity. Bear Stearns used
Greyhound's projected earnings per share for 2000 through 2002 based on two
financial scenarios provided by management. Bear Stearns applied an assumed
future price/earnings multiple range of 9.0x to 13.0x based on the trading
ranges of the Comparable
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Companies and Regional Airlines. The resulting hypothetical future stock prices
were then discounted back to the present using a discount rate of 14.5%,
reflecting Bear Stearns' estimate of Greyhound's cost of equity. The analysis
yielded a range of values of $1.98 to $6.53 per share, and Bear Stearns observed
that the Merger Consideration was at the upper end of this range.
Comparable Acquisition Analysis. Bear Stearns reviewed certain
publicly-available financial information related to seven merger and acquisition
transactions completed in the passenger services industry that it deemed
generally comparable to the Merger (the "Comparable Transactions"). Of these
seven transactions, financial data was publicly available for the following five
transactions (acquired company/acquiring company): Greyhound Canada
Transportation Corp./Laidlaw, Valley Transit Co., Inc./Greyhound, Carolina Coach
Company/Greyhound, 6 transportation companies/Coach USA (August, 1996) and 6
transportation companies/Coach USA (founding transactions). For each of these
five transactions, Bear Stearns reviewed certain publicly available financial
information for the acquired companies including revenue, EBITDA, EBIT and
certain valuation statistics. The ratios of the transaction values of each of
the acquired companies to their respective LTM revenues, LTM EBITDA and LTM EBIT
ranged from 1.09x to 2.24x, 4.9x to 8.5x and 8.3x to 12.9x, respectively. The
harmonic means of the ratios of the transaction values of each of the acquired
companies to their respective LTM revenues, LTM EBITDA and LTM EBIT were 1.53x,
6.6x and 9.6x, respectively. The ratios of the transaction value implied by the
Merger Consideration to Greyhound's LTM revenues, LTM EBITDA and LTM EBIT are
0.93x, 9.5x and 16.4x, respectively. Bear Stearns compared such results and
observed that the Merger Consideration produced multiples that compare favorably
to the results of the Comparable Transactions analysis.
Bear Stearns noted that no transaction used in the foregoing analysis is
identical to the Merger. Accordingly, an analysis of the results of the
foregoing is not mathematical; rather, it involves a number of considerations
and judgments concerning differences in financial and operating characteristics
of the companies and the Comparable Transactions and other factors that could
affect the value of the companies or transactions to which Greyhound or the
Merger are being compared.
Discounted Cash Flow Analysis. Bear Stearns performed a discounted cash flow
analysis of Greyhound based upon financial projections prepared by Greyhound's
management for the fiscal years ending December 31, 1999 through December 31,
2002. Using discount rates ranging from 10.5% to 11.5% per annum, reflecting
Bear Stearns' estimate of Greyhound's weighted average after-tax cost of
capital, Bear Stearns calculated the present value of the projected Free Cash
Flows (as defined below) for each of the fiscal years ending December 31, 1999
through 2002, the present value of the terminal value (the "Terminal Value") of
Greyhound at December 31, 2002 and the present value of expected tax savings
from Greyhound's available tax net operating loss carryforwards. As used in Bear
Stearns' analysis, "Free Cash Flow" means, for each fiscal year, earnings before
interest and taxes, less estimated taxes, plus depreciation and amortization,
less capital expenditures and less incremental working capital requirements. The
Terminal Value was computed by applying assumed growth rates of Free Cash Flow
into perpetuity of 1.5% to 2.5%. This range of perpetual growth rates and
discount rates implied terminal multiples of 2002 EBITDA of approximately 4.2x
to 5.9x and terminal multiples of 2002 net income of approximately 11.7x to
20.4x, in each case depending on the assumptions employed.
To calculate the aggregate net present value of the equity of Greyhound, Bear
Stearns subtracted total debt minus cash and cash equivalents of Greyhound from
the sum of the present value of the projected Free Cash Flows, the present value
of the Terminal Value and the present value of the expected tax savings from
Greyhound's available tax net operating loss carryforwards. Based on this
analysis and the assumptions set forth above, Bear Stearns calculated the
implied equity value per
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fully diluted share of Greyhound Common Stock to be between $2.57 and $6.83 per
share. Bear Stearns observed that the Merger Consideration was at the upper end
of this value range.
The preparation of a fairness opinion is a complex process and is not
necessarily susceptible to partial analysis or summary description. Selecting
portions of the analyses or of the summary described above, without considering
the analysis as a whole, could create an incomplete view of the processes
underlying the Bear Stearns Opinion. In arriving at its opinion, Bear Stearns
considered the results of all the analyses it performed. Such analyses were
prepared solely for purposes of providing its opinion as to the fairness of the
Merger Consideration, from a financial point of view, to the Greyhound
stockholders and do not purport to be appraisals or necessarily indicate the
prices at which businesses or securities actually may be sold. Analyses based
upon forecasts of future results are not necessarily indicative of actual future
results, which may be significantly more or less favorable than those results
suggested by such analyses. As described above, the Bear Stearns Opinion and
Bear Stearns' presentation to the Greyhound Board were two of many factors taken
into consideration by the Greyhound Board in making its determination to approve
the Merger. The foregoing summary does not purport to be a complete description
of the analyses performed by Bear Stearns in rendering its opinion.
In the ordinary course of business, Bear Stearns may actively trade the equity
securities of Greyhound and Laidlaw for its own account and for the accounts of
its customers and, accordingly, may, at any time, hold a long or short position
in such securities.
Under the terms of a letter dated June 18, 1998, Greyhound paid Bear Stearns a
retainer fee of $100,000 and paid Bear Stearns an additional fee of $100,000 at
the time negotiations relating to the Merger began. Greyhound has also paid Bear
Stearns a fee of $1.0 million for rendering its opinion relating to the Merger.
Greyhound has also agreed to pay Bear Stearns a fee equal to 0.55% of the
aggregate value of the Merger, which includes the assumption of debt, capital
leases and certain other liabilities. This fee is payable upon completion of the
Merger, against which all fees described above would be credited. Greyhound also
agreed to reimburse Bear Stearns for its out-of-pocket expenses, including the
reasonable fees and disbursements of counsel and to indemnify Bear Stearns and
certain related persons against certain liabilities in connection with the
engagement of Bear Stearns, including certain liabilities under the federal and
state securities laws.
LAIDLAW'S REASONS FOR THE MERGER
The Laidlaw Board has unanimously determined that the Merger (including the
issuance of Laidlaw Common Shares in the Merger) is fair to and in the best
interests of the holders of Laidlaw Common Shares. Accordingly, the Laidlaw
Board approved the Merger Agreement. The Laidlaw Board considered a number of
factors prior to approving the Merger, including:
- the Merger is consistent with Laidlaw's long-term objective of delivering
shareholder value by growth through acquisitions and internal growth;
- the Merger will provide entry into significant new geographic markets for
Laidlaw's existing scheduled intercity bus transportation business,
enhancing the value of the Canadian Greyhound business previously
acquired by Laidlaw and Laidlaw's strategic objective of expanding this
business;
- the Merger will add significant management expertise in Laidlaw's
scheduled intercity bus transportation business; and
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- the combined company will have the potential to realize cost savings in
administration, insurance and in purchasing supplies and equipment, as
compared to the two companies continuing to operate separately.
THE MERGER AGREEMENT
The following is a summary of the material terms of the Merger Agreement. This
summary is not a complete description of the terms and conditions of the Merger
Agreement and is qualified in its entirety by reference to the full text of the
Merger Agreement, a copy of which is attached as Appendix A to this Proxy
Statement/Prospectus. Terms used in this section of this Proxy Statement/
Prospectus with initial capital letters that are not otherwise defined in the
Proxy Statement/Prospectus have the meaning given to those terms in the Merger
Agreement.
The Merger. At the Effective Time, Laidlaw Acquisition will be merged into
Greyhound in accordance with the applicable provisions of the DGCL. As a result,
the separate corporate existence of Laidlaw Acquisition will cease. Following
the Merger, Laidlaw will own all of the outstanding shares of Greyhound Common
Stock.
Upon the satisfaction or waiver of all the conditions contained in the Merger
Agreement (other than those to be satisfied at the closing), Greyhound and
Laidlaw Acquisition will file the Certificate of Merger with the Secretary of
State of the State of Delaware as required by the DGCL. The Merger will become
effective immediately upon filing of the Certificate of Merger or at such later
time as is specified in the Certificate of Merger.
Merger Consideration. At the Effective Time, as a result of the Merger and
without any action on the part of any stockholder:
- each share of Greyhound Common Stock outstanding immediately prior to the
Effective Time (other than those canceled by the terms of the Merger
Agreement and any dissenting shares) will be converted into the right to
receive the Merger Consideration;
- each share of Greyhound Common Stock outstanding immediately prior to the
Effective Time and owned by Greyhound or any Greyhound subsidiary or by
Laidlaw, Laidlaw Acquisition or any other Laidlaw subsidiary will
automatically be canceled and retired without the payment of any
consideration;
- each share of Greyhound Preferred Stock outstanding immediately prior to
the Effective Time (other than any dissenting shares) will remain issued
and outstanding and have the identical powers, preferences, rights,
qualifications, limitations and restrictions as the Greyhound Preferred
Stock had prior to the Merger. Under the terms of the Greyhound Preferred
Stock, following the Merger, the Greyhound Preferred Stock will be
convertible into the same Merger Consideration paid to the holders of
Greyhound Common Stock multiplied by the number of shares of Greyhound
Common Stock issuable upon conversion of one share of Greyhound Preferred
Stock (each share of Greyhound Preferred Stock is currently convertible
into approximately 5.128 shares of Greyhound Common Stock); and
- each share of common stock of Laidlaw Acquisition outstanding immediately
prior to the Effective Time will be converted into and exchanged for one
share of Greyhound Common Stock.
The Merger Consideration is payable in cash. Laidlaw, however, has the option to
pay up to $4.00 of the Merger Consideration with Laidlaw Common Shares. Laidlaw
will publicly announce (by press release) whether or not it intends to pay a
portion of the Merger Consideration with Laidlaw
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Common Shares prior to the fifth trading day before the date of the Special
Meeting ( , 199 , unless the Special Meeting is postponed). If
Laidlaw exercises its option, the value of the Laidlaw Common Shares will be
based on the weighted average sale price (rounded to the nearest one hundred
thousandth) of the Laidlaw Common Shares as reported on the NYSE and the TSE
during the five-day trading period immediately preceding, but not including, the
fifth trading day prior to the date of the Special Meeting. In order to
calculate the weighted average sale price, stock transactions occurring on the
TSE will be translated into U.S. dollars based on the noon buying rate in The
City of New York for cable transfers payable in foreign currencies as certified
for customs purposes by the Federal Reserve Bank of New York on the date of such
stock transactions.
Laidlaw will designate a bank or trust company (the "Paying Agent") to act as
the agent for the Merger. The Paying Agent will receive the Merger Consideration
from Laidlaw and distribute the Merger Consideration to each holder of Greyhound
Common Stock after they have delivered their Greyhound Common Stock certificates
along with a signed letter of transmittal to the Paying Agent.
Small Lots; Fractional Shares. If Laidlaw elects to pay a portion of the Merger
Consideration with Laidlaw Common Shares, the holders of Greyhound Common Stock
will receive a portion of the Merger Consideration in Laidlaw Common Shares.
Laidlaw, however, will not issue any certificates representing Laidlaw Common
Shares to a holder of Greyhound Common Stock if such holder will receive less
than 100 Laidlaw Common Shares ("small lots"). Laidlaw also will not issue any
certificates or scrip representing fractional Laidlaw Common Shares. Instead of
receiving Laidlaw Common Shares, each such holder of Greyhound Common Stock
("Small Lot Holder") will be paid an additional amount in cash (without
interest), based upon the average of the sale prices received for the small lot
and fractional shares when sold in the open market on the NYSE as described
below.
The Paying Agent will determine the aggregate number of Laidlaw Common Shares
which constitute small lots and fractional shares ("Excess Shares") as soon as
possible after the Effective Time. The Excess Shares will be sold through one or
more member firms of the NYSE and will be sold in lots of 100 Shares to the
extent practicable. The Paying Agent will complete the sale of the Excess Shares
as soon as possible after the Effective Time. However, the sale of the Excess
Shares may be delayed if the stock market conditions at such time are not
favorable. Laidlaw will pay all commissions, transfer taxes and other
transaction costs incurred in connection with the sale of the Excess Shares.
The Paying Agent will determine the additional amount of cash to be received by
each Small Lot Holder by multiplying the aggregate net proceeds from the sale of
the Excess Shares by a fraction, the numerator of which is the number (or
fraction) of Laidlaw Common Shares the Small Lot Holder would have received in
the Merger and the denominator of which is the aggregate number of Excess
Shares. The Paying Agent will distribute all amounts payable to each Small Lot
Holder as soon as possible after all Excess Shares are sold.
Dissenting Shares. In the Merger, the holders of Greyhound Common Stock and
Greyhound Preferred Stock have appraisal rights under Section 262 of the DGCL
("Section 262"). If a Greyhound stockholder exercises his or her appraisal
rights and complies with the requirements of Section 262 (a "Dissenting
Stockholder"), the shares of Greyhound Common Stock owned by the Dissenting
Stockholder will not be converted into the right to receive the Merger
Consideration at the Effective Time. Instead, such Dissenting Stockholder will
receive the appraised value of his or her shares of Greyhound Common Stock. The
shares of Greyhound Preferred Stock owned by a Dissenting Stockholder will not
remain outstanding following the Merger. Instead, such Dissenting
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Stockholder will receive the appraised value of his or her Greyhound Preferred
Stock. The shares of Greyhound Common Stock or Greyhound Preferred Stock owned
by a Dissenting Stockholder are referred to as "Dissenting Shares." If, after
the Effective Time, the Dissenting Stockholder fails to comply with the
requirements of Section 262, the Dissenting Shares of such Dissenting
Stockholder will be treated as shares of Greyhound Common Stock or Greyhound
Preferred Stock, as the case may be, and will be converted into the right to
receive the Merger Consideration in the case of the Greyhound Common Stock or
will remain outstanding in the case of the Greyhound Preferred Stock. At the
Effective Time, a Dissenting Stockholder will not have any rights (including
voting rights and rights to dividends or distributions) with respect to his or
her Dissenting Shares other than the rights provided by Section 262. For a
summary of the requirements that a Greyhound stockholder must follow in order to
exercise his or her appraisal rights, see "The Merger -- Appraisal Rights."
Treatment of Greyhound Options. Greyhound will offer each holder of a Greyhound
Option, whether or not the Greyhound Option is exercisable, the right to cancel
his or her Greyhound Option in exchange for an amount in cash equal to $6.50
less the exercise price of the Greyhound Option. In the event that any Greyhound
Option is not canceled prior to the Effective Time, that Greyhound Option will
remain outstanding under the terms of the applicable Greyhound stock option
plan. This offer, however, will not be made with respect to Greyhound Options
granted under the Union Option Plan. Instead, the effects of Merger on the
Greyhound Options granted under the Union Option Plan will be governed by the
terms of the Union Option Plan.
Representations and Warranties. The Merger Agreement contains various
representations and warranties of the parties including their respective
businesses and organizational documents, capital structure, authority to
execute, deliver and perform their respective obligations under the Merger
Agreement, required filings and consents, compliance with laws, filings with the
Securities and Exchange Commission (the "SEC"), absence of certain changes and
events, undisclosed liabilities, litigation, employee benefit plans, labor
matters, taxes, intellectual property and brokers.
The representations and warranties made by Greyhound, Laidlaw and Laidlaw
Acquisition will not survive beyond the Effective Time or the termination of the
Merger Agreement. However, if the Merger is completed, Laidlaw's obligation to
pay the Merger Consideration will survive the Effective Time indefinitely and
the agreements relating to the treatment of the Greyhound Options,
indemnification and insurance and the continuation of certain Greyhound benefits
will survive for the periods described in the Merger Agreement. If the Merger
Agreement is terminated, the obligation, if any, of Greyhound to pay the
Termination Fee will survive indefinitely.
Consents, Approvals, and Filings. Greyhound and Laidlaw are required to make all
governmental filings necessary to complete the Merger, including with the STB.
Further, Greyhound and Laidlaw will obtain all consents, waivers, approvals,
authorizations and orders that are necessary to complete the Merger. Greyhound
and Laidlaw have agreed to take, or cause to be taken, all appropriate actions,
and to do, or cause to be done, all things necessary or advisable under
applicable laws to complete the Merger, including furnishing all information
required to be included in any application or filing necessary to complete the
Merger. If final approval of the Merger by the STB is not obtained prior to the
Special Meeting, Laidlaw has agreed to enter into a voting trust or similar
agreement in order to permit the completion of the Merger before it receives
final approval from the STB.
No Solicitation. Greyhound has agreed that it will not and will not permit any
of its subsidiaries or any of its or their officers, directors, employees,
agents or representatives, to solicit or initiate any inquiries or proposals
regarding or engage in negotiations or discussions concerning any merger, sale
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of substantial assets, sale of capital stock (including any tender offer) or
other similar transaction involving Greyhound or its subsidiaries, other than
the transactions contemplated by the Merger Agreement (an "Acquisition
Proposal"). Greyhound has also agreed that it will not provide any nonpublic
information relating to Greyhound or its subsidiaries to any person who is
proposing an Acquisition Proposal, except as described below.
However, if the Greyhound Board concludes, after consultation with Bear Stearns
that a person has made or is likely to make a Superior Proposal, Greyhound may
provide information to and participate in discussions with the person making the
Superior Proposal. Greyhound has agreed to sign a confidentiality agreement with
any person making a Superior Proposal before Greyhound provides that person any
information or begins discussions with that person regarding the Superior
Proposal. The confidentiality agreement must be substantially similar to the
confidentiality agreement between Greyhound and Laidlaw.
Greyhound has agreed to notify Laidlaw immediately if it receives any written
Acquisition Proposal or if any pending Acquisition Proposal has been modified or
amended. Further, Greyhound has agreed to notify Laidlaw if it receives any
request for information relating to Greyhound or its subsidiaries or for access
to the properties, books or records of Greyhound or its subsidiaries by any
person who is considering making or who has made an Acquisition Proposal.
Conditions to the Merger. The Merger Agreement provides that the obligations of
Greyhound, Laidlaw and Laidlaw Acquisition to complete the Merger are subject to
the satisfaction or written waiver on or prior to the closing date of the Merger
(the "Closing Date") of the following conditions:
- the Merger Agreement will have been adopted by the holders of a majority
of the outstanding shares of Greyhound Common Stock and Greyhound
Preferred Stock, voting together as one class;
- no court order prohibiting the Merger being in effect, and no action
having been taken and no law being in effect which makes the Merger
illegal;
- the Registration Statement continuing to be effective under the
Securities Act of 1933, as amended ("Securities Act") on the Closing
Date; and
- the opinion of Bear Stearns not having been modified in any material
adverse manner or withdrawn.
The obligations of Laidlaw and Laidlaw Acquisition to complete the Merger are
subject to satisfaction or written waiver on or prior to the Closing Date of the
following additional conditions:
- the representations and warranties made by Greyhound in the Merger
Agreement were true and correct in all material respects on the date of
the Merger Agreement and will be true on and as of the Closing Date
(unless an earlier date is stated);
- Greyhound will have performed in all material respects all obligations it
is required to perform under the Merger Agreement prior to the Closing
Date; and
- Greyhound will have delivered to Laidlaw and Laidlaw Acquisition a
certificate of Greyhound signed by an executive officer of Greyhound
certifying to the conditions stated above.
The obligations of Greyhound to complete the Merger are subject to satisfaction
or written waiver on or prior to the Closing Date of the following additional
conditions:
- the representations and warranties made by Laidlaw and Laidlaw
Acquisition in the Merger Agreement were true and correct in all
materials respects on the date of the Merger Agreement and will be true
on and as of the Closing Date (unless an earlier date is stated);
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- Laidlaw and Laidlaw Acquisition will have each performed in all material
respects all obligations they are required to perform under the Merger
Agreement prior to the Closing Date;
- Laidlaw and Laidlaw Acquisition will have delivered to Greyhound a
certificate of Laidlaw and Laidlaw Acquisition signed by an executive
officer of each of them certifying to the conditions stated above; and
- if Laidlaw exercises its option to issue Laidlaw Common Shares as part of
the Merger Consideration, the Laidlaw Common Shares issuable to the
holders of Greyhound Common Stock in the Merger will have been approved
for listing on the NYSE.
Termination; Break-Up Fee. The Merger Agreement may be terminated at any time
prior to the Effective Time in any one of the following circumstances:
- by the mutual written consent of the Greyhound Board and the Laidlaw
Board;
- by Greyhound or Laidlaw, if any court or other governmental agency issues
a nonappealable final order or ruling, or has taken any action to
permanently prevent the Merger (but neither Laidlaw nor Greyhound may
terminate the Merger Agreement if they failed to perform their
obligations under the Merger Agreement and their failure materially
contributed to the issuance of the order or ruling, or the taking of such
action);
- by Greyhound or Laidlaw, if Greyhound enters into an agreement with
respect to a Superior Proposal;
- by Laidlaw, if the Greyhound Board withdraws, modifies or changes its
approval or recommendation of the Merger Agreement or the Merger in a
manner adverse to Laidlaw;
- by Greyhound or Laidlaw (but only if the terminating party is not in
material breach of any of the representations, warranties, covenants or
agreements made by the terminating party in the Merger Agreement), if:
- the other party failed to comply in any material respect with any
of the covenants and agreements made by such other party in the
Merger Agreement; or
- any representation or warranty made by the other party in the
Merger Agreement was untrue on the date the representation or
warranty was made;
in either case, if such event will have a material adverse effect on the
other party. If, however, such event can be corrected, then the Merger
Agreement may not be terminated under this provision if the breaching
party uses its reasonable best efforts to correct the event or if the
event is corrected;
- by Greyhound or Laidlaw, if the Special Meeting was held and the Merger
Agreement was not adopted by a majority of the Greyhound stockholders; or
- by Greyhound or Laidlaw, if the Merger is not completed by March 31,
1999, but neither Greyhound nor Laidlaw may terminate if they failed to
perform their obligations under the Merger Agreement and their failure is
the reason the Merger was not completed by that date.
If the Merger Agreement is terminated by Laidlaw because Greyhound enters into
an agreement for a Superior Proposal, Greyhound is required to pay Laidlaw the
Termination Fee. The Termination Fee is also payable to Laidlaw if the Merger
Agreement is terminated by Laidlaw because the Greyhound Board withdraws or
adversely modifies or changes its approval or recommendation of the Merger
Agreement or the Merger and a Superior Proposal has been made and is pending.
The
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Termination Fee payable to Laidlaw is required to be paid within two business
days after the termination date. Greyhound will not be required to pay any
Termination Fee to Laidlaw if, immediately prior to such termination, Greyhound
could have terminated the Merger Agreement under certain circumstances. Payment
of the Termination Fee by Greyhound will be Laidlaw's only remedy for the event
giving rise to the payment of the Termination Fee.
Special Meeting. The Merger Agreement requires that Greyhound hold a meeting of
the Greyhound stockholders for the purpose of considering and voting on a
proposal to adopt the Merger Agreement. The Merger Agreement also provides that
the Greyhound Board recommend to the Greyhound stockholders that they vote "For"
the adoption of the Merger Agreement at the Special Meeting. However, the
Greyhound Board will not be required to make any recommendation to the Greyhound
stockholders if the Greyhound Board determines (after consultation with legal
counsel) that making the recommendation would be a breach of its fiduciary
duties to Greyhound and its stockholders.
Registration of Laidlaw Common Shares. If Laidlaw elects to pay a part of the
Merger Consideration with Laidlaw Common Shares, Laidlaw has agreed that as soon
as possible after the Effective Time it will take all action necessary to
register under the Securities Act the Laidlaw Common Shares that may be issued
to the holders of Greyhound Preferred Stock upon conversion of their shares
after the Merger.
Indemnification and Insurance. For a period of five years after the Effective
Time, Greyhound and Laidlaw have each agreed to indemnify each current and
former director, officer and employee of Greyhound or its subsidiaries (each, an
"Indemnified Party") against certain costs and expenses to the extent allowed
under Delaware law and the Greyhound Certificate or Greyhound Bylaws. The costs
and expenses may include attorneys' fees, judgments, fines, losses, claims,
damages and liabilities that relate to any claim, action, suit, proceeding or
investigation, whether civil, criminal, administrative or investigative (i)
relating to the Merger or the Merger Agreement or (ii) with respect to any acts
or omissions or alleged acts or omissions of the Indemnified Parties occurring
at or prior to the Effective Time.
For a period of five years after the Effective Time, Greyhound will be required
to maintain directors' and officers' liability insurance ("D&O Insurance") for
all Greyhound directors and officers who are presently covered under Greyhound's
current D&O Insurance policy. The terms of the D&O Insurance to be maintained
for the benefit of Greyhound's directors and officers must be comparable to the
terms of the D&O Insurance maintained by Laidlaw for its directors and officers.
However, if the terms of Greyhound's current D&O Insurance is more favorable,
then Greyhound will be required to maintain D&O Insurance on terms similar to
the current Greyhound D&O Insurance. Neither Greyhound nor Laidlaw will be
required to pay premiums on the D&O Insurance to be maintained for the benefit
of Greyhound's directors and officers in an amount greater than of 300% of the
annual premium currently paid by Greyhound for its D&O Insurance.
Laidlaw will guarantee the obligations of Greyhound to indemnify the Indemnified
Parties and to provide D&O Insurance for the benefit of the Greyhound directors
and officers from and after the Effective Time. Laidlaw and Greyhound will also
require any person or entity that purchases the assets or business of Greyhound
following the Merger to assume all of their obligations to indemnify, and to
provide D&O Insurance for, the Greyhound directors and officers described above.
Employee Benefit Matters. Greyhound has agreed to continue, without amendment or
change (except changes which increase compensation or benefits or that may be
required by law), all Greyhound employee benefit plans and other policies and
arrangements which provide compensation or benefits to employees of Greyhound
and its subsidiaries for a period of at least one year following the Merger.
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Greyhound will not be required to maintain any Greyhound employee benefit plans
that conflict with any collective bargaining agreements to which Greyhound is a
party. Greyhound may replace any Greyhound employee benefit plan with any other
plan or arrangement that provides, at minimum, a substantially equivalent level
of compensation or benefits as currently provided. Greyhound will not be
required to maintain any Greyhound stock incentive plan if Laidlaw agrees to
replace that Greyhound stock incentive plan with another plan or arrangement
that the Greyhound Board determines in good faith provides comparable incentive
compensation opportunities.
Following the Merger, Laidlaw has agreed to cause Greyhound to comply with all
employment, change-in-control, severance, termination, consulting and unfunded
retirement and benefit agreements to which Greyhound or any of its subsidiaries
is a party. Laidlaw has acknowledged that the Merger constitutes a change in
control and any references to a change of control in these agreements will
include the Merger.
Fees and Expenses. All costs and expenses incurred in connection with the Merger
and the Merger Agreement will be paid by the party incurring the expenses,
whether or not the Merger is completed.
Amendment; Waiver. Greyhound and Laidlaw may amend the Merger Agreement at any
time before the Effective Time. Any amendment must be made in writing and signed
by Greyhound and Laidlaw. However, no amendment may be made after the Greyhound
stockholders have adopted the Merger Agreement which by law would require
further Greyhound stockholder approval. At any time prior to the Effective Time,
either party to the Merger Agreement may (i) extend the time for the performance
of any of the obligations or other acts of the other party, (ii) waive any
inaccuracies in the representations and warranties made in the Merger Agreement
by the other party or (iii) waive compliance with any of the agreements or
conditions contained in the Merger Agreement. Any extension or waiver must be
made in writing signed by the party or parties to be bound.
STOCK EXCHANGE LISTING
If Laidlaw exercises its option to pay a portion of the Merger Consideration
with Laidlaw Common Shares, Laidlaw will file an application to list the Laidlaw
Common Shares to be issued in the Merger on the NYSE. It is a condition to
Greyhound's obligation to complete the Merger that the Laidlaw Common Shares to
be issued in the Merger be approved for listing on the NYSE on or prior to the
Effective Time, subject to official notice of issuance. Laidlaw Common Shares
are traded on the NYSE under the symbol "LDW." Laidlaw Common Shares are also
traded on the TSE and the Montreal Exchange under the symbol "LDM."
DELISTING OF GREYHOUND COMMON STOCK
If the Merger is completed, the Greyhound Common Stock will cease to be listed
on the AMEX.
CERTAIN FEDERAL INCOME TAX CONSEQUENCES
General. The following is a summary of the significant federal income tax
consequences of the Merger to Greyhound stockholders. This summary is based upon
the provisions of the Code, the applicable current and proposed Treasury
Regulations, judicial authority and administrative rulings and practice.
Legislative, judicial or administrative rules and interpretations are subject to
change, possibly on a retroactive basis, at any time and therefore could alter
or modify the following statements and conclusions. It is assumed that the
shares of Greyhound Common Stock or Greyhound Preferred Stock are held as
capital assets by a United States person (i.e., a citizen or
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resident of the United States or a domestic corporation). This discussion does
not address all aspects of federal income taxation that may be relevant to a
particular Greyhound stockholder in light of such Greyhound stockholder's
personal investment circumstances, or those Greyhound stockholders subject to
special treatment under the federal income tax laws (for example, life insurance
companies, tax-exempt organizations, foreign corporations and nonresident alien
individuals), Greyhound stockholders who hold shares of Greyhound Common Stock
or Greyhound Preferred Stock as part of a conversion transaction under Section
1258 of the Code, or to Greyhound stockholders who acquired their shares of
Greyhound Common Stock through the exercise of employee stock options or other
compensation arrangements. In addition, with certain limited exceptions, the
discussion does not address any aspect of foreign, state, local or estate and
gift taxation that may be applicable to a Greyhound stockholder.
Consequences of the Merger to Stockholders. The receipt of the Merger
Consideration in the Merger (including any cash amounts received by Dissenting
Stockholders) will be a taxable transaction for federal income tax purposes (and
also may be a taxable transaction under applicable state, local and other income
tax laws). In general, for federal income tax purposes, a holder of Greyhound
Common Stock will recognize gain or loss equal to the difference between his or
her adjusted tax basis in the Greyhound Common Stock exchanged in the Merger or
subject to appraisal rights, and the amount of cash and the fair market value
(determined as of the Effective Time) of the Laidlaw Common Shares received. The
gain or loss will be capital gain or loss, and will be long-term gain or loss
if, on the Effective Time, the shares of Greyhound Common Stock so exchanged or
subject to appraisal rights were held for more than one year. The tax basis of
the Laidlaw Common Shares received by a holder of Greyhound Common Stock will be
the fair market value of such Laidlaw Common Shares at the Effective Time.
The consummation of the Merger will not be a taxable transaction for a holder of
Greyhound Preferred Stock unless that holder converts his or her shares of
Greyhound Preferred Stock into shares of Greyhound Common Stock prior to the
Merger or receives cash as a result of exercising his or her appraisal rights.
Instead, gain or loss will generally be recognized for federal income tax
purposes (and also may be recognized under applicable state, local and other
income tax laws) on conversion of the Greyhound Preferred Stock into the Merger
Consideration. At the time of conversion of the Greyhound Preferred Stock, a
holder of Greyhound Preferred Stock will recognize gain or loss equal to the
difference between his or her adjusted tax basis in the Greyhound Preferred
Stock, and the amount of cash and the fair market value (determined at the time
of conversion) of the Laidlaw Common Shares received. Such gain or loss will be
capital gain or loss, and will be long-term gain or loss if, on the conversion
date, the shares of Greyhound Preferred Stock were held for more than one year.
The tax basis of the Laidlaw Common Shares received on conversion by a holder of
Greyhound Preferred Stock will be the fair market value of such Laidlaw Common
Shares at the time of conversion. If there is a dividend arrearage on the
Greyhound Preferred Stock when the conversion takes place, a portion of the
Merger Consideration received may be treated as a taxable dividend to the extent
of such dividend arrearage.
Under the terms of the Greyhound Preferred Stock, after April 16, 1999 and
subject to certain conditions, Greyhound may exchange all, but not less than
all, of the then outstanding shares of Greyhound Preferred Stock into its 8 1/2%
Convertible Subordinated Debentures due 2009 (the "Greyhound Exchange
Debentures"). At the time of conversion of the Greyhound Exchange Debentures, a
holder of Greyhound Exchange Debentures will recognize gain or loss in the same
manner as described above on conversion of the Greyhound Preferred Stock into
the Merger Consideration. If there is accrued but unpaid interest with respect
to the Greyhound Exchange
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Debentures when the conversion takes place, a portion of the Merger
Consideration received would be taxed as a payment of such accrued interest.
Dividends paid with respect to Laidlaw Common Shares to non-residents of Canada
are subject to Canadian non-resident withholding tax. The current rate of
non-resident withholding tax for U.S. residents is generally 15%. The
withholding tax may be eligible for a credit against the dividend recipient's
U.S. federal income tax liability. A holder of Laidlaw Common Shares who does
not reside in Canada is not subject to Canadian capital gains tax upon the sale
of such holder's Laidlaw Common Shares unless the Laidlaw Common Shares are
considered taxable Canadian property as defined in the Income Tax Act of Canada
and the non-resident is not entitled to relief under an applicable tax treaty.
Backup Tax Withholding. Under the federal income tax backup withholding rules,
unless an exemption applies, Laidlaw is required to and will withhold 31% of all
payments to which a Greyhound stockholder or other payee is entitled in the
Merger or on the conversion of Greyhound Preferred Stock or Greyhound Exchange
Debentures, unless the Greyhound stockholder or other payee provides a tax
identification number (social security number, in the case of an individual, or
employer identification number in the case of other stockholders) and certifies
under penalties of perjury that such number is correct. Each Greyhound
stockholder and, if applicable, each other payee, should complete and sign the
substitute Form W-9 which will be part of the letter of transmittal to be
returned to the Paying Agent (or other agent) in order to provide the
information and certification necessary to avoid backup withholding, unless an
applicable exception exists and is proved in a manner satisfactory to the Paying
Agent (or other agent). The exceptions provide that certain Greyhound
stockholders (including, among others, all corporations and certain foreign
individuals) are not subject to these backup withholding and reporting
requirements. In order for a foreign individual to qualify as an exempt
recipient, however, he or she must submit a signed statement (i.e., Certificate
of Foreign Status on Form W-8) attesting to his or her exempt status. Any
amounts withheld will be allowed as a credit against the holder's federal income
tax liability for such year.
THE FEDERAL INCOME TAX DISCUSSION DESCRIBED ABOVE IS INCLUDED FOR GENERAL
INFORMATION PURPOSES ONLY. GREYHOUND STOCKHOLDERS SHOULD CONSULT THEIR OWN TAX
ADVISORS TO DETERMINE THE FEDERAL, STATE, LOCAL AND FOREIGN TAX CONSEQUENCES OF
THE MERGER TO THEM IN VIEW OF THEIR OWN PARTICULAR CIRCUMSTANCES.
GOVERNMENTAL APPROVALS
Surface Transportation Board. Greyhound and Laidlaw are subject to regulation by
the STB. The current laws relating to motor carriers contain a comprehensive
system of control over corporate combinations involving motor carriers or
entities controlling motor carriers (including the Merger).
Laidlaw has filed an application with the STB seeking approval of the Merger
(the "STB Application"). The STB is required to publish a summary of the
application and provide its tentative grant of approval of the Merger within 30
days after the STB determines that the STB Application is complete (the
"Publication Date"). This publication will serve as a notice to the general
public of the proposed Merger. The tentative grant of approval will
automatically become effective 45 days after the Publication Date if no comments
are filed by any third party opposing the STB Application. If comments are
submitted in opposition to the STB Application during such period, the tentative
grant of approval will be void. Laidlaw will have 60 days from the Publication
Date to respond to any comments, and may request an expedited decision on the
issues raised by the comments. All evidentiary proceedings on the comments must
be completed within 240 days of the Publication Date.
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The STB must render a final decision on the STB Application within 180 days of
completion of the evidentiary proceedings. The STB may, in some circumstances,
extend the time for rendering its decision on the application for an additional
90 days.
Laidlaw has agreed to enter into a voting trust agreement, if necessary, in
order to allow Laidlaw to acquire all shares of Greyhound Common Stock pursuant
to the Merger prior to the receipt of final approval from the STB. As a result,
final STB approval is not a condition to the Merger. However, Laidlaw is
required to obtain STB approval prior to exercising control over Greyhound. If
the STB does not approve the STB Application and denies the Merger, the
Greyhound Common Stock owned by Laidlaw must be disposed of within two years
following notification from STB that the Merger has been denied. This time
limitation may be extended with the STB's approval. Any such disposition could
result in a significant loss to Laidlaw.
Other Governmental Filings and Approvals. Contemporaneously with the filing of
the STB Application, Laidlaw was required to file copies of the STB Application
with the Federal Trade Commission (the "FTC") and the Antitrust Division of the
Department of Justice (the "Antitrust Division"). Filing of the STB Application
with the FTC and the Antitrust Division and approval by the STB of the STB
Application and the Merger, exempts the Merger from federal and state antitrust
laws. Additionally, the parties may be required to make other filings with
certain governmental agencies in connection with the Merger, but neither
Greyhound nor Laidlaw believe these filings are material.
INTERESTS OF CERTAIN PERSONS IN THE MERGER
General. Some of the members of Greyhound's management and the Greyhound Board
may have certain interests in the Merger that are different from or in addition
to the interests of stockholders of Greyhound generally. These additional
interests relate to provisions in the Merger Agreement regarding:
- certain employment agreements for two executive officers of Greyhound,
- the benefits under existing change-in-control agreements and severance
plans,
- certain actions to be taken in respect of employee benefit plans,
- the treatment of outstanding Greyhound Options,
- the vesting of certain benefits by reason of the Merger,
- the payment of the remaining annual retainer fees for non-employee
directors, and
- the indemnification and provision of D&O Insurance for the directors and
officers of Greyhound.
All such additional interests, to the extent material, are described below.
Except as described below, such persons have, to the knowledge of Greyhound, no
material interest in the Merger apart from those of the Greyhound stockholders
generally. The Greyhound Board was aware of these interests and considered them,
among other matters, in approving the Merger Agreement and the transactions
contemplated thereby.
Employment Agreements. Greyhound is a party to an employment agreement with
Craig R. Lentzsch, President and Chief Executive Officer of Greyhound ("Lentzsch
Agreement"). The Lentzsch Agreement has an initial term that expires in November
2001 and renews automatically for additional two-year periods unless either
party gives notice of termination at least 90 days prior to an expiration date.
The Lentzsch Agreement provides for an annual base salary of at least $469,500,
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which is subject to annual review and adjustment by the Greyhound Board, annual
incentive bonuses, options to purchase Greyhound Common Stock and various
employee benefits. The annual incentive bonus will be provided under Greyhound's
Management Incentive Plan ("MIP") with an annual target award of at least 55% of
Mr. Lentzsch's annual base salary for the applicable year. Under the terms of
the MIP as currently in effect, Mr. Lentzsch's annual incentive bonus may not
exceed 110% of his base salary. Employee benefits to be provided include
participation in Greyhound's Section 401(k) plan, medical, dental and vision
plan coverage, participation in Greyhound's supplemental executive retirement
plan ("SERP"), reimbursement for estate, tax and financial planning expenses,
automobile allowance, country club allowance, vacation, life insurance and long-
term disability insurance. Greyhound is required to establish and fully fund a
trust for Mr. Lentzsch's benefit to secure the SERP benefits.
If Mr. Lentzsch is terminated by Greyhound "Without Good Cause" or by
"Non-Renewal Without Good Cause" or if Mr. Lentzsch resigns for "Good Reason"
(as such terms are defined in the Lentzsch Agreement), Mr. Lentzsch will receive
a lump-sum cash payment equal to two times the sum of (i) his annual base salary
and (ii) the greater of (x) the applicable annual payout of incentive
compensation under the MIP for the plan year immediately prior to the date of
termination or (y) the full annual target award under the MIP based on Mr.
Lentzsch's annual base salary for the plan year in which the termination occurs.
In addition, certain employee benefits previously provided to Mr. Lentzsch will
continue for a two-year period. If at any time prior to a Change of Control (as
defined in the Lentzsch Agreement) Mr. Lentzsch is terminated by reason of "Good
Cause" or "Non-Renewal for Good Cause" or Mr. Lentzsch terminates his employment
"Without Good Reason" (as such terms are defined in the Lentzsch Agreement), Mr.
Lentzsch has agreed that he will not compete with Greyhound in the manner
specified in the Lentzsch Agreement for a period of one year following the date
of termination.
If at any time within two years after a Change of Control Mr. Lentzsch is
terminated by Greyhound Without Good Cause or by Non-Renewal Without Good Cause
or if Mr. Lentzsch resigns for Good Reason or resigns (whether with or without
Good Reason) within 30 days of the first anniversary of the Change of Control
(the "walk at will right"), Mr. Lentzsch will receive a lump-sum cash payment
equal to three times the sum of the amounts described in clauses (i) and (ii)
above. In addition, certain employee benefits previously provided to Mr.
Lentzsch will continue for a three-year period. Upon a Change of Control, all
stock options and other incentive awards previously granted to Mr. Lentzsch will
immediately vest and become exercisable. If any payments or benefits provided to
Mr. Lentzsch are determined to be "excess parachute payments" under the Code,
Mr. Lentzsch will be entitled to receive an additional payment (net of income
taxes) to compensate him for any excise tax imposed by the Code. Mr. Lentzsch
has agreed that he will not solicit any of Greyhound's employees to terminate
employment with Greyhound or any of its subsidiaries or to solicit any such
employees to become employed by another entity for a period of one year
following the termination of his employment.
Greyhound is also a party to an employment agreement with John W. Haugsland,
Executive Vice President and Chief Operating Officer of Greyhound ("Haugsland
Agreement"). The term of employment of the Haugsland Agreement is the same as
the term described in the Lentzsch Agreement. The Haugsland Agreement provides
for an annual base salary of $305,000, which is subject to annual review and
adjustment by the Greyhound Board, annual incentive bonuses, options to purchase
Greyhound Common Stock and various employee benefits. The annual incentive bonus
will be provided under the MIP with an annual target award of at least 45% of
Mr. Haugsland's annual base salary for the applicable year. Under the terms of
the MIP as currently in effect,
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Mr. Haugsland's annual incentive bonus may not exceed 90% of his base salary.
The Haugsland Agreement has provisions regarding Change of Control, severance,
employee benefits, noncompetition and nonsolicitation substantially similar to
those contained in the Lentzsch Agreement.
At Laidlaw's request, prior to the Merger, Greyhound and Messrs. Lentzsch and
Haugsland will enter into new employment agreements which will become effective
at the Effective Time replacing their existing employment agreements. If the
Merger Agreement is terminated prior to the Effective Time, the new employment
agreements will not take effect and the Lentzsch Agreement and Haugsland
Agreement will continue in effect. Mr. Lentzsch's new employment agreement will
provide for an annual base salary of $500,000 and a limitation that his maximum
annual incentive bonus under the MIP (or any successor plan) will not exceed
110% of his base salary. Mr. Haugsland's new employment agreement will provide
for continuation of an annual base salary of $305,000 and a limitation that his
maximum annual incentive bonus under the MIP (or any successor plan) will not
exceed 90% of his base salary. Both new employment agreements provide for (i)
the expansion of their responsibilities after the Merger; (ii) a pro-rated
annual bonus for the period beginning on the Effective Time and ending August
31, 1999; (iii) continuation of existing employee benefits (except for
increases) for at least 12 months following the Effective Time, after which a
substantially equivalent level of benefits must be provided; (iv) a revised
definition of "Change of Control," which excludes the Merger; (v) the
elimination of the walk at will right with respect to the Merger; and (vi)
increased severance benefits (other than in connection with a Change of
Control). The trust may be funded with a Laidlaw letter of credit. In all other
significant respects, the new employment agreements will be the same as the
existing employment agreements.
Change in Control Agreements. Greyhound has entered into Change in Control
Agreements ("CIC Agreements") with all officers at the vice president level or
higher (other than Messrs. Lentzsch and Haugsland) and other selected key
employees of Greyhound. Under the CIC Agreements, if a "Change in Control" (as
defined in the CIC Agreements) of Greyhound occurs and the employment of the
employee is terminated within two years after the Change in Control either for
"Good Reason" by the employee or "Without Cause" (as such terms are defined in
the CIC Agreements) by Greyhound (or any successor or assignee), the employee
will receive severance benefits, including: (i) base salary and benefits earned
and payable through the termination date; (ii) the dollar amount of the target
payout under the MIP prorated through the termination date for the year in which
employment is terminated; and (iii) a lump-sum cash payment of two times the sum
of (x) the employee's current annual base salary and (y) the dollar amount of
the target payout under the MIP in effect on the date of the Change in Control.
In addition, certain employee benefits (including medical, dental and vision
plan coverage) will continue for a period of two years after the date of
termination. Under the CIC Agreements, if any amount to be paid or provided is
determined to be nondeductible by reason of Section 280G of the Code, the
severance benefits will be reduced to the minimum extent necessary so that
Section 280G does not cause any amount to be nondeductible. Benefits under the
CIC Agreements replace benefits, if any, under any other Greyhound severance
plans. The Merger will constitute a Change in Control under the CIC Agreements.
Change in Control Severance Pay Program. Greyhound has a Change in Control
Severance Pay Program (the "Severance Pay Program") that provides severance
benefits to certain full-time employees of Greyhound at grade 15 and above
(other than Messrs. Lentzsch and Haugsland and employees who have entered into
CIC Agreements) who are not represented by a union, if within two years after a
"Change in Control" (as defined in the Severance Pay Program) employment is
terminated by Greyhound "Without Cause" or by the employee for "Good Reason" (as
such terms are defined in the Severance Pay Program). The cash severance
benefits to be provided will be equal
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to the sum of (i) the employee's current annual base salary and (ii) the dollar
amount of the target payout under the MIP in effect on the date of the Change in
Control. All other terms of the Severance Pay Program are comparable to the
corresponding provisions in the CIC Agreements. Benefits under the Severance Pay
Program replace benefits, if any, available under any other Greyhound severance
plans. The Merger will constitute a Change in Control under the Severance Pay
Program.
Effect of the Merger on Employee Benefits and Stock Plans. In addition to the
provisions relating to employment agreements, CIC Agreements and the Severance
Pay Program, the Merger Agreement contemplates that certain additional actions
will be taken in respect of employee benefits and stock plans in which executive
officers of Greyhound are eligible to participate. Those actions are summarized
below.
Annual bonuses for employees of Greyhound for 1998 will be paid on or prior to
December 31, 1998. If necessary, Greyhound will make payment of such bonuses in
accordance with its good faith estimate of the percentage of the annual
performance goal that will be achieved. The terms of Greyhound's annual bonus
for 1998 will otherwise be subject to the 1998 MIP. Greyhound will provide an
annual bonus program substantially similar to Greyhound's 1998 MIP for the 1999
calendar year and for at least five calendar years thereafter.
Under the terms of the Merger Agreement, Laidlaw has agreed to continue the SERP
in effect for the 1999 calendar year and for at least five calendar years
thereafter. As required by the Lentzsch Agreement and the Haugsland Agreement,
Greyhound has established and funded a rabbi trust to secure the payment of the
obligations of Greyhound under the SERP for the benefit of all participants in
the SERP. After the Merger, Greyhound will transfer to the rabbi trust an amount
not less than the present value of the SERP obligations secured by such trust
and the additional administrative expenses, in each case, attributable to each
fiscal year.
Greyhound has agreed to continue, without any amendment or change (except
changes that will increase compensation or benefits or which may be required by
law), all Greyhound employee benefit plans and any other practices and
arrangements that provide compensation or benefits to employees of Greyhound for
a period of at least one year following the Merger. See "The Merger -- The
Merger Agreement -- Employee Benefit Matters."
In the Merger Agreement, Laidlaw acknowledges that the Merger will constitute a
change in control for purposes of any policy, practice, program or arrangement
that contains a provision relating to a change in control of Greyhound. In
accordance with the terms of the Greyhound Options, as of the Effective Time,
all Greyhound Options will vest and become fully exercisable.
Greyhound has agreed to use its reasonable best efforts to cause the holders of
Greyhound Options (other than Greyhound Options granted under the Union Option
Plan), whether or not exercisable, to cancel their Greyhound Options in exchange
for an amount in cash equal to $6.50 less the exercise price of the Greyhound
Options. See "The Merger -- The Merger Agreement -- Treatment of Greyhound
Options."
At the Effective Time, Laidlaw will grant options to purchase Laidlaw Common
Shares to officers and other employees of Greyhound. The options to be granted
will have an exercise price equal to the market value of Laidlaw Common Shares
on the date of grant, vest over a five-year period and expire on the tenth
anniversary of the date of grant. The number of options granted to each person
will be comparable to the number of options granted annually to Laidlaw's
officers and employees in similar positions and as reasonably agreed to by
Greyhound and Laidlaw.
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Payment of Remaining Annual Retainer Fees. Subject to approval of the Greyhound
Board, Greyhound expects to pay all of its non-employee directors their annual
retainer for each year remaining on the term of their current directorship. The
annual retainer for non-employee directors is $25,000 (other than the Chairman
of the Board of Directors who receives $45,000). As a result, the non-employee
directors of Greyhound will receive the following amounts: Thomas G. Plaskett
(Chairman), $90,000; Richard J. Caley, $25,000; Linda Chavez, $25,000; A. A.
Meitz, $25,000; Frank L. Nageotte, $50,000; Alfred Osborne, Jr., $0; Stephen M.
Peck, $0; and Ernest P. Werlin, $0.
APPRAISAL RIGHTS
Under the DGCL, holders of Greyhound Common Stock and Greyhound Preferred Stock
are entitled to appraisal rights in connection with the Merger. Any holder of
record of Greyhound Common Stock or Greyhound Preferred Stock who objects to the
Merger may elect to have his or her shares of Greyhound Common Stock or
Greyhound Preferred Stock appraised under the procedures of the DGCL and to be
paid the appraised value of his or her shares. The appraised value of the shares
will not include any value arising from the Merger but may include a fair rate
of interest. It is possible that the fair value determined may be more or less
than the Merger Consideration.
Any holder of Greyhound Common Stock or Greyhound Preferred Stock who is
considering exercising his or her appraisal rights is urged to review carefully
the provisions of Section 262 (a copy of which is attached as Appendix C to this
Proxy Statement/Prospectus), particularly with respect to the procedural steps
required to perfect the right of appraisal. The right of appraisal may be lost
if the procedural requirements of Section 262 are not followed exactly. The
following is a summary of the procedures relating to exercise of the right of
appraisal, which should be read in conjunction with the full text of Section
262.
Under Section 262, Greyhound is required to notify each Greyhound stockholder
entitled to appraisal rights at least 20 days prior to the Special Meeting that
such appraisal rights are available. The notice should include a copy of Section
262. THIS PROXY STATEMENT/PROSPECTUS CONSTITUTES SUCH NOTICE TO THE HOLDERS OF
GREYHOUND COMMON STOCK AND GREYHOUND PREFERRED STOCK.
A Greyhound stockholder electing to exercise his or her appraisal rights under
Section 262 must deliver to Greyhound a written demand for appraisal before the
vote is taken at the Special Meeting. The written demand must identify the
Greyhound stockholder and state that the Greyhound stockholder intends to demand
appraisal of his or her shares of Greyhound Common Stock or Greyhound Preferred
Stock. A vote against the adoption of the Merger Agreement or an abstention will
not constitute a demand for appraisal. A Greyhound stockholder electing to take
any of those actions must do so by a separate written demand to Greyhound.
Demands should be mailed or delivered to Greyhound Lines, Inc., 15110 N. Dallas
Parkway, Suite 600, Dallas, Texas 75248, Attention: Secretary. Within 10
calendar days after the Effective Time, Greyhound will notify each Greyhound
stockholder who has made a proper written demand for appraisal and who has not
voted for the adoption of the Merger Agreement that the Merger has been
completed. A vote "For" the adoption of the Merger Agreement will have the
effect of waiving all appraisal rights.
Within 120 calendar days after the Effective Time, Greyhound or any Greyhound
stockholder who has complied with the foregoing notice requirement and the other
requirements of Section 262 may file a petition in the Delaware Court of
Chancery (the "Court") demanding a determination of the fair value of his or her
shares of Greyhound Common Stock or Greyhound Preferred Stock. Greyhound has no
obligation to file a petition and does not currently intend to do so. As a
result, any Dissenting Stockholder who wishes to file a petition is advised to
do so on a timely basis. If a petition
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for appraisal is not filed during the 120-day period, all appraisal rights
relating to the Greyhound Common Stock or Greyhound Preferred Stock will
terminate. Any Greyhound stockholder may withdraw a demand for appraisal at any
time within 60 calendar days after the Effective Time (or thereafter with the
written consent of Greyhound).
If a holder of Greyhound Common Stock either withdraws his or her demand for
appraisal or has his or her appraisal rights terminated as described above, the
holder of Greyhound Common Stock will only be entitled to receive the Merger
Consideration for his or her shares of Greyhound Common Stock as provided under
the terms of the Merger Agreement. If a holder of Greyhound Preferred Stock
either withdraws his or her demand for appraisal or has his or her appraisal
rights terminated as described above, his or her shares of Greyhound Preferred
Stock will remain outstanding. However, the Greyhound Preferred Stock will no
longer be convertible into shares of Greyhound Common Stock after the Merger.
Instead, the Greyhound Preferred Stock will be convertible into the same Merger
Consideration paid to holders of Greyhound Common Stock multiplied by the
conversion ratio applicable to the Greyhound Preferred Stock.
Within 120 calendar days after the Effective Time, any stockholder who has
complied with the above-described notice requirements and the other requirements
of Section 262 may request in writing a list of the aggregate number of shares
of Greyhound Common Stock and Greyhound Preferred Stock for which demands for
appraisal have been made and the aggregate number of holders demanding appraisal
rights.
If a petition is filed by a Dissenting Stockholder, Greyhound will receive
notice from the Court of such filing. Within 20 calendar days after Greyhound
receives notice from the Court, Greyhound must file with the office of the
Register in Chancery in which the petition was filed, a list containing the
names and addresses of all Greyhound stockholders who have demanded appraisal
rights and the names of all Greyhound stockholders who have disagreements with
Greyhound regarding the value of their shares of Greyhound Common Stock or
Greyhound Preferred Stock. If a petition is filed by Greyhound, the petition
will be accompanied by a similar list. If ordered by the Court, the Register in
Chancery will give notice of the time and place of the hearing by registered or
certified mail to Greyhound and to each Greyhound stockholder shown on the list.
The notice will also be given by publishing the notice in a newspaper of general
circulation published in Wilmington, Delaware (or any other location the Court
may determine), at least one week before the hearing. The forms of the notices
to be used will be approved by the Court, and all costs related to the
distribution of the notices will be paid by Greyhound.
After the Court determines which of the Greyhound stockholders are entitled to
an appraisal under Section 262, the Court will appraise the shares of the
Greyhound Common Stock and/or Greyhound Preferred Stock. Following determination
by the Court of the fair value of the shares, Greyhound will pay all Dissenting
Stockholders the appraised value of their shares, together with interest, if
any, upon surrender to Greyhound of their certificates representing Greyhound
Common Stock or Greyhound Preferred Stock. The costs of the appraisal proceeding
may be determined by the Court and charged to the parties as the Court deems
equitable in the circumstances. Upon application of a Dissenting Stockholder,
the Court may order all or a portion of the expenses incurred by any Dissenting
Stockholder in connection with the appraisal proceeding, including reasonable
attorneys' fees and the fees and expenses of experts, to be charged pro rata
against the value of all of the shares entitled to an appraisal.
After the Effective Time, no Greyhound stockholder who has demanded his or her
appraisal rights as set forth above will be entitled to vote his or her shares
for any purpose or to receive payment of
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dividends or other distributions on his shares (except dividends or other
distributions payable to Greyhound stockholders of record at a date prior to the
Effective Time). However, after either withdrawal by a holder of Greyhound
Preferred Stock of his or her demand for appraisal or the termination of his or
her appraisal rights as described above, such holder will be entitled to vote
his or her shares and receive payment of dividends and other distributions.
ACCOUNTING TREATMENT
The Merger will be accounted for as a purchase of Greyhound by Laidlaw in
accordance with Canadian GAAP. Canadian GAAP conforms in all material respects
with U.S. GAAP as such relates to the Merger. Under the purchase method of
accounting, the purchase price paid by Laidlaw for Greyhound (including direct
costs of the Merger) will be allocated to the assets of Greyhound based upon
estimates of the fair value of Greyhound's assets and liabilities as of the
Effective Time. The excess of the purchase price over the fair value of
Greyhound's net assets will be allocated to goodwill.
AMENDMENT TO GREYHOUND RIGHTS AGREEMENT
Greyhound amended the Amended and Restated Rights Agreement, dated April 8,
1997, between Greyhound and Mellon Securities Trust Company, as Rights Agent
(the "Greyhound Rights Plan") on October 16, 1998. The amendment provides that
neither the Merger nor the Merger Agreement will cause the rights issued under
the Greyhound Rights Plan to become exercisable.
CERTAIN LITIGATION
Greyhound has obtained copies of two complaints filed in Delaware Chancery Court
purportedly filed by certain individual Greyhound stockholders on behalf of
themselves and all other Greyhound stockholders. Greyhound was served with one
of these complaints on October 28, 1998. The complaints name Greyhound, each of
its directors and Laidlaw as defendants. In the complaints, the plaintiffs
allege, among other things, that (i) the provisions of the Merger Agreement
permitting Laidlaw to make the election to pay a portion of the Merger
Consideration in Laidlaw Common Shares prior to the fifth trading day before the
Special Meeting violates Delaware law, (ii) the defendant directors breached
their fiduciary duties in approving the Merger, and (iii) Laidlaw aided and
abetted the breach by members of the Greyhound Board of their fiduciary duties.
The plaintiffs purport to seek orders enjoining the consummation of the Merger
(or the rescission of the transaction if the Merger is completed), damages,
costs, including attorneys' and experts' fees, and other relief. The absence of
an injunction, among other things, is a condition to Greyhound's and Laidlaw's
obligation to complete the Merger. See "The Merger -- The Merger
Agreement -- Conditions to the Merger." Greyhound intends to defend these suits
vigorously.
53
<PAGE> 60
UNAUDITED PRO FORMA CONDENSED COMBINED FINANCIAL INFORMATION
The following unaudited pro forma condensed combined financial statements of
Laidlaw give effect to the completion of the Merger, as if the Merger had been
completed (i) on August 31, 1998, in the case of the Unaudited Pro Forma
Condensed Combined Balance Sheet at August 31, 1998 and (ii) on September 1,
1997, the first day of Laidlaw's fiscal year ended August 31, 1998, in the case
of the Unaudited Pro Forma Condensed Combined Statement of Operations for the
twelve months ended August 31, 1998. These unaudited pro forma condensed
combined financial statements of Laidlaw assume that Laidlaw pays the Merger
Consideration with $2.50 in cash and $4.00 in Laidlaw Common Shares, and that
the Greyhound Preferred Stock had been converted to Greyhound Common Stock prior
to the Merger (see also Note 19 of Notes to Unaudited Pro Forma Condensed
Combined Financial Information).
The following unaudited pro forma condensed combined financial information is
presented for illustrative purposes only and is not necessarily indicative of
what Laidlaw's actual financial position or results of operations would have
been had the Merger been completed on those dates, nor does this pro forma
financial information give effect to (i) any transactions other than the Merger
and those described in the accompanying Notes to Unaudited Pro Forma Condensed
Combined Financial Information of Laidlaw, or (ii) Laidlaw's or Greyhound's
results of operations since August 31, 1998 and September 30, 1998,
respectively. The pro forma condensed combined financial information does not
purport to be indicative of Laidlaw's financial position or results of
operations as of the date hereof or for any period ended on the date hereof, as
of the Closing Date, or for any period ending at the Closing Date, or as of or
for any other future date or period.
The following unaudited pro forma condensed combined financial information is
based upon the historical financial statements of Laidlaw and Greyhound and
should be read in conjunction with such historical financial statements, the
related notes and the other information included or incorporated by reference in
this Proxy Statement/Prospectus. See "Incorporation of Certain Documents By
Reference." In the preparation of the following unaudited pro forma combined
financial information, it generally has been assumed that the historical value
of Greyhound's assets and liabilities approximates their fair value (except as
described in the accompanying Notes to Unaudited Pro Forma Condensed Combined
Financial Information), because an independent valuation has not been completed.
Laidlaw will be required to determine the fair value of the assets and
liabilities of Greyhound (including intangible assets) as of the Effective Time.
Although the determination of the fair value is not presently expected to result
in values that are materially greater or less than the values assumed in the
preparation of the following unaudited pro forma condensed combined financial
information, there can be no assurances in this regard.
The Unaudited Pro Forma Condensed Combined Balance Sheet at August 31, 1998 is
based upon Laidlaw's financial position at August 31, 1998 and upon Greyhound's
financial position at September 30, 1998. The Unaudited Pro Forma Condensed
Combined Statement of Operations for the twelve months ended August 31, 1998 is
based upon Laidlaw's results of operations for its fiscal year ended August 31,
1998 and upon Greyhound's results of operations for its twelve months ended
September 30, 1998.
54
<PAGE> 61
LAIDLAW INC.
UNAUDITED PRO FORMA CONDENSED COMBINED BALANCE SHEET(1)
AUGUST 31, 1998
(IN MILLIONS)
<TABLE>
<CAPTION>
LAIDLAW
LAIDLAW GREYHOUND PRO FORMA PRO FORMA
AUGUST 31, 1998 SEPTEMBER 30, 1998 ADJUSTMENTS AUGUST 31, 1998
--------------- ------------------ ----------- ---------------
<S> <C> <C> <C> <C>
ASSETS:
Cash, short-term deposits and
marketable securities................ $ 268.3 $ 2.9 $ -- $ 271.2
Trade and other accounts receivable,
net.................................. 574.5 47.6 -- 622.1
Other current assets................... 74.1 84.1 -- 158.2
-------- ------ ------- --------
Total Current Assets.......... 916.9 134.6 -- 1,051.5
-------- ------ ------- --------
Long-term investments.................. 987.3 104.2 (5.8)(9) 1,085.7
-------- ------ ------- --------
Property and equipment, net............ 1,192.7 338.5 -- 1,531.2
-------- ------ ------- --------
Goodwill, net.......................... 3,033.8 40.5 320.5(10) 3,394.8
Deferred charges and intangibles,
net.................................. 37.7 30.7 (15.7)(11) 52.7
Deferred income taxes.................. 16.2 10.5 19.0(12) 45.7
-------- ------ ------- --------
Total Other Assets............ 3,087.7 81.7 323.8 3,493.2
-------- ------ ------- --------
Total Assets.................. $6,184.6 $659.0 $ 318.0 $7,161.6
======== ====== ======= ========
LIABILITIES AND SHAREHOLDERS' EQUITY:
Accounts payable....................... $ 141.9 $ 25.6 $ -- $ 167.5
Accrued liabilities.................... 356.2 91.7 --(13) 447.9
Income tax payable..................... 95.1 0.8 -- 95.9
Current portion of long-term debt...... 38.0 5.9 -- 43.9
-------- ------ ------- --------
Total Current Liabilities..... 631.2 124.0 -- 755.2
-------- ------ ------- --------
Deferred items......................... 169.8 64.4 -- 234.2
-------- ------ ------- --------
Long-term debt......................... 2,293.7 257.2 247.2(14) 2,798.1
-------- ------ ------- --------
Share capital.......................... 2,254.9 59.6 224.6(15) 2,539.1
Capital in excess of par value......... -- 235.9 (235.9)(16) --
CFCTA.................................. (172.1) -- -- (172.1)
Unfunded accumulated pension
obligation........................... -- (7.5) 7.5(17) --
Retained earnings (deficit)............ 1,007.1 (74.6) 74.6(18) 1,007.1
-------- ------ ------- --------
Total Capital Shareholders'
Equity...................... 3,089.9 213.4 70.8 3,374.1
-------- ------ ------- --------
Total Liabilities and
Shareholders' Equity........ $6,184.6 $659.0 $ 318.0 $7,161.6
======== ====== ======= ========
</TABLE>
- -------------------------
(1) Assumes that Laidlaw pays the Merger Consideration with $2.50 in cash and
$4.00 in Laidlaw Common Shares and the conversion of the Greyhound Preferred
Stock prior to the Merger.
See Accompanying Notes to Unaudited Pro Forma Condensed Combined Financial
Information.
55
<PAGE> 62
LAIDLAW INC.
UNAUDITED PRO FORMA CONDENSED COMBINED
STATEMENT OF OPERATIONS(1)
TWELVE MONTHS ENDED AUGUST 31, 1998
(IN MILLIONS)
<TABLE>
<CAPTION>
LAIDLAW GREYHOUND PRO FORMA
FISCAL YEAR TWELVE MONTHS TWELVE MONTHS
ENDED ENDED ENDED
AUGUST 31, SEPTEMBER 30, PRO FORMA AUGUST 31,
1998 1998 ADJUSTMENTS 1998
----------- ------------- ----------- -------------
<S> <C> <C> <C> <C>
Revenues...................................... $3,690.2 $836.0 $ -- $4,526.2
-------- ------ ------ --------
Operating, selling, general and administrative
expenses.................................... 2,962.8 753.3 -- 3,716.1
Depreciation and amortization................. 305.7 35.1 6.3(4) 347.1
-------- ------ ------ --------
Income from operations................... 421.7 47.6 (6.3) 463.0
Interest expense.............................. (177.0) (28.2) (4.1) (5) (209.3)
Interest, dividend and other income........... 76.3 -- -- 76.3
Equity in earnings (loss) of associated
companies................................... (3.0) -- -- (3.0)
Dilution gain................................. 100.7 -- -- 100.7
-------- ------ ------ --------
Income (loss) before income taxes and minority
interest.................................... 418.7 19.4 (10.4) 427.7
Income tax benefit (expense).................. (68.0) 16.4 (21.3)(6) (72.9)
Minority interest............................. (4.7) -- -- (4.7)
-------- ------ ------ --------
Net income (loss)............................. 346.0 35.8 (31.7) 350.1
Preferred dividends........................... (0.4) (5.2) 5.2(7) (0.4)
-------- ------ ------ --------
Net income (loss) available to common
shareholders........................... $ 345.6 $ 30.6 $(26.5) $ 349.7
======== ====== ====== ========
Net income per Laidlaw or Greyhound common
share....................................... $ 1.05 $ 0.51 $(0.59) $ 0.97
======== ====== ====== ========
Weighted average number of common shares
outstanding (in millions)................... 329.8 59.7 (30.4)(8) 359.1
======== ====== ====== ========
</TABLE>
- -------------------------
(1) Assumes that Laidlaw pays the Merger Consideration with $2.50 in cash and
$4.00 in Laidlaw Common Shares and the conversion of the Greyhound Preferred
Stock prior to the Merger.
See Accompanying Notes to Unaudited Pro Forma Condensed Combined Financial
Information.
56
<PAGE> 63
NOTES TO UNAUDITED PRO FORMA CONDENSED COMBINED
FINANCIAL INFORMATION
(IN MILLIONS, EXCEPT PER SHARE DATA)
(1) Accounting Treatment
If the Merger is completed, it will be accounted for using the purchase method
of accounting applied in accordance with generally accepted accounting
principles in Canada and the United States. Accordingly, the assets and
liabilities of Greyhound will be recorded at their estimated fair value, with
any difference between the amount of such fair value and the purchase price
being recorded as goodwill. The operating results of the combined company will
include the results of operations of Greyhound from and after the Effective
Time.
(2) Merger Consideration
In connection with the Merger, each outstanding share of Greyhound Common Stock
will be converted into the right to receive $6.50. The Merger Consideration is
payable in cash. Laidlaw, however, has the option to pay up to $4.00 of the
Merger Consideration in Laidlaw Common Shares. Greyhound Preferred Stock not
converted into Greyhound Common Stock prior to the Merger will remain
outstanding following the Merger. However, the Greyhound Preferred Stock will no
longer be convertible into shares of Greyhound Common Stock after the Merger.
Instead, the Greyhound Preferred Stock will be convertible into the same Merger
Consideration paid to the holders of Greyhound Common Stock multiplied by the
conversion ratio applicable to Greyhound Preferred Stock (each share of
Greyhound Preferred Stock is currently convertible into approximately 5.128
shares of Greyhound Common Stock). The aggregate purchase price to be paid by
Laidlaw in connection with the Merger is $489.7, excluding the assumption of
liabilities. The following summarizes the aggregate purchase price to be paid if
Laidlaw pays the Merger Consideration with $2.50 in cash and $4.00 in Laidlaw
Common Shares:
<TABLE>
<S> <C>
Greyhound Common Stock outstanding at September 30, 1998.... 60,246,842
Less: Greyhound Common Stock in treasury at September 30,
1998................................................... (109,192)
-----------
60,137,650
Greyhound Common Stock to be issued assuming conversion of
2,400,000 shares of Greyhound Preferred Stock............. 12,307,692
Greyhound Common Stock previously acquired by Laidlaw....... (1,389,700)
-----------
Greyhound Common Stock remaining to acquire................. 71,055,642
===========
</TABLE>
57
<PAGE> 64
NOTES TO UNAUDITED PRO FORMA CONDENSED COMBINED
FINANCIAL INFORMATION, CONTINUED
<TABLE>
<S> <C> <C>
Cash cost at $2.50 per share of Greyhound Common Stock..... $ 177.7
Cost of additional Laidlaw Common Shares to be issued:
Number of Laidlaw Common Shares to be issued.......... 29,339,104(a)
Price per share....................................... $ 9.6875(b)
-------------
Total cost............................................... 284.2
-----------
461.9
Cost of Greyhound Common Stock previously acquired by
Laidlaw.................................................. 5.8
Cost of "in-the money" Greyhound Options assumed to fully
vest..................................................... 22.0
-----------
Total purchase price............................. $ 489.7
===========
</TABLE>
- -------------------------
(a) Assuming a weighted average sale price of $9.6875. The possible combinations
of cash and shares to be paid in the Merger could result in the issuance of
a number of Laidlaw Common Shares ranging from none to 29,339,104. The
actual weighted average sale price for the applicable five-day trading
period may differ from this assumption and, as a result, the number of
Laidlaw Common Shares that may be issued in the Merger may also vary.
(b) The price per share of $9.6875 represents the closing sale price of the
Laidlaw Common Shares as reported on the NYSE on October 16, 1998, the last
full trading date prior to the public announcement of the Merger. The actual
weighted average sale price for the applicable five-day trading period may
differ.
(3) Allocation of Purchase Price.
The purchase price has been allocated to the assets acquired and liabilities
assumed based on estimated fair values at August 31, 1998 as follows:
<TABLE>
<S> <C>
Current assets.............................................. $ 134.6
Long-term investments....................................... 104.2
Property and equipment...................................... 338.5
Goodwill.................................................... 361.0
Deferred charges and intangibles............................ 15.0
Deferred income taxes....................................... 29.5
Current liabilities......................................... (124.0)
Other deferred items........................................ (64.4)
Long-term debt.............................................. (304.7)
-------
Merger purchase price....................................... $ 489.7
=======
</TABLE>
58
<PAGE> 65
NOTES TO UNAUDITED PRO FORMA CONDENSED COMBINED
FINANCIAL INFORMATION, CONTINUED
(4) To adjust depreciation and amortization expense to reflect the effect of the
Merger on goodwill and intangible amortization expense, as follows:
<TABLE>
<S> <C>
To eliminate Greyhound's historical goodwill and intangible
amortization expense...................................... $ (5.7)
To record amortization expense related to goodwill arising
as a result of the Merger on a straight-line basis over 40
years..................................................... 9.0
To record amortization expense related to deferred charges
and intangibles on a straight-line basis over five
years..................................................... 3.0
-------
Total adjustment.................................. $ 6.3
=======
</TABLE>
(5) To adjust interest expense for the impact on long-term debt associated with
the Merger, as follows:
<TABLE>
<S> <C>
To eliminate historical Greyhound interest expense.......... $ (28.2)
To record interest expense on borrowings(a) at 5.75%(b)..... 11.5
To record interest expense on $159.8 of public debt......... 18.1
To record amortization of Greyhound public debt fair value
adjustment................................................ (4.5)
To record interest expense on balance of Greyhound net debt
of $103.3 at an average rate of 7%........................ 7.2
-------
Total adjustment.................................. $ 4.1
=======
</TABLE>
- -------------------------
(a) Additional long-term debt associated with Merger excluding fair value
adjustment on Greyhound's public debt of $47.5 (Note 14).
(b) At current rates pursuant to the terms of the Laidlaw revolving/term bank
line.
(6) To eliminate the tax benefit of $23.6 relating to Greyhound's previously
unrecognized net operating loss carry forward recorded in the 12-month
period ending September 30, 1998 and to record the incremental change in
Laidlaw's tax liability resulting from the pro forma adjustments (excluding
non-deductible goodwill amortization of $4.7) utilizing a tax rate of 40%.
(7) Assuming the holders of Greyhound Preferred Stock convert their shares of
Greyhound Preferred Stock into shares of Greyhound Common Stock prior to the
completion of the Merger.
(8) Pro forma weighted average common and common stock equivalents outstanding
(in millions) comprise:
<TABLE>
<S> <C>
Laidlaw weighted average historical for the fiscal year
ended August 31, 1998..................................... 329.8
Additional Laidlaw Common Shares to be issued in connection
with the Merger........................................... 29.3
------
Pro forma Laidlaw Common Shares for the 12 months ended
August 31, 1998........................................... 359.1
======
</TABLE>
59
<PAGE> 66
NOTES TO UNAUDITED PRO FORMA CONDENSED COMBINED
FINANCIAL INFORMATION, CONTINUED
(9) To reclassify $5.8 of Greyhound Common Stock previously acquired.
(10) To eliminate the historical book value of Greyhound's goodwill and record
the goodwill resulting from the Merger as follows:
<TABLE>
<S> <C>
Eliminate historical Greyhound goodwill..................... $(40.5)
Record goodwill arising from the Merger..................... 361.0
------
Total adjustment.................................. $320.5
======
</TABLE>
(11) To fair value Greyhound's deferred charges and intangible assets.
(12) To tax effect $47.5 fair value adjustment to Greyhound's public debt
utilizing a tax rate of 40%.
(13) Laidlaw's management estimates that costs of approximately $30 related to
severance costs and other direct acquisition costs will be incurred in
connection with the Merger. These cost estimates are not yet based on
sufficient factual information in order to be included as pro forma
adjustments and are subject to change as additional information becomes
available.
(14) To record the incremental long-term debt associated with the Merger as
follows:
<TABLE>
<S> <C>
Cash component of acquiring outstanding shares of Greyhound
Common Stock (Note 2)..................................... $177.7
Fair value Greyhound's public debt based on the assumed
market value at the Effective Time........................ 47.5
Cost of stock options....................................... 22.0
------
Total adjustment.................................. $247.2
======
</TABLE>
(15) To record additional share capital associated with the Merger, as follows:
<TABLE>
<S> <C>
Eliminate historical Greyhound share capital................ $(59.6)
Issuance of additional Laidlaw Common Shares (Note 2)....... $284.2
------
Total adjustment.................................. $224.6
======
</TABLE>
(16) To eliminate historical Greyhound capital in excess of par value.
(17) To eliminate accumulated pension obligation included in Greyhound's
stockholders' equity.
(18) To eliminate historical Greyhound retained earnings.
(19) Pro Forma Effect of Alternative Assumptions
A. If the Merger Consideration was paid entirely in cash, the effect on the
unaudited pro forma condensed combined financial statements would be as follows:
(i) the pro forma long-term debt would increase by $284.2 to $3,082.3;
(ii)the pro forma shareholders' equity would decrease by $284.2 to
$3,089.9;
60
<PAGE> 67
NOTES TO UNAUDITED PRO FORMA CONDENSED COMBINED
FINANCIAL INFORMATION, CONTINUED
(iii)
the pro forma net income available to holders of Laidlaw Common Shares
would decrease by $9.8 to $339.9;
(iv)the pro forma weighted average number of Laidlaw Common Shares
outstanding would decrease by 29.3 million to 329.8 million; and
(v) the pro forma net income per Laidlaw Common Share would increase by
$0.06 per share to $1.03 per share.
B. If Greyhound Preferred Stock were not converted prior to the Merger, and,
assuming that Laidlaw pays the Merger Consideration with $2.50 in cash and $4.00
in Laidlaw Common Shares, the effect on the unaudited pro forma condensed
combined financial statements would be as follows:
(i) the pro forma long-term debt would increase by $5.2 to $2,803.3;
(ii)the pro forma shareholders' equity would decrease by $5.2 to $3,368.9;
(iii)
the pro forma net income available to holders of Laidlaw Common Shares
would decrease $4.1 to $345.6;
(iv)the pro forma weighted average number of Laidlaw Common Shares
outstanding would decrease by 5.0 million to 354.1 million; and
(v) the pro forma net income per Laidlaw Common Share would increase by
$0.01 per share to $0.98 per share.
C. If Greyhound Preferred Stock were not converted prior to the Merger, and,
assuming that Laidlaw pays the Merger Consideration entirely in cash, the effect
on the unaudited pro forma condensed combined financial statements would be as
follows:
(i) the pro forma long-term debt would increase by $284.2 to $3,082.3;
(ii)the pro forma shareholders' equity would decrease by $284.2 to
$3,089.9;
(iii)
the pro forma net income available to holders of Laidlaw Common Shares
would decrease $12.2 to $337.5;
(iv)the pro forma weighted average number of Laidlaw Common Shares
outstanding would decrease by 29.3 million to 329.8 million; and
(v) the pro forma net income per Laidlaw Common Share would increase $0.05
per share to $1.02 per share.
61
<PAGE> 68
DESCRIPTION OF LAIDLAW CAPITAL STOCK
AUTHORIZED CAPITAL SHARES
The Articles of Amalgamation of Laidlaw ("Laidlaw Articles") provide that
Laidlaw is authorized to issue an unlimited number of Laidlaw Common Shares and
an unlimited number of First Preference Shares, no par value, in one or more
series, an unlimited number of Second Preference Shares, no par value, in one or
more series, an unlimited number of Third Preference Shares, no par value, in
one or more series and an unlimited number of Fourth Preference Shares, no par
value, in one or more series (collectively, the "Laidlaw Preference Shares").
COMMON SHARES
The holders of Laidlaw Common Shares are entitled to one vote for each share
held of record on all matters submitted to a vote of the Laidlaw shareholders.
Subject to the preferential rights of any outstanding Laidlaw Preference Shares,
holders of Laidlaw Common Shares are entitled to receive on pro rata basis any
dividends declared by the Laidlaw Board. In the event of a liquidation,
dissolution or winding-up of Laidlaw, the holders of Laidlaw Common Shares are
entitled to share in all assets of Laidlaw on a pro rata basis remaining after
payment of liabilities and the liquidation preferences of any outstanding
Laidlaw Preference Shares. Holders of Laidlaw Common Shares have no preemptive
rights, no cumulative voting rights, and no rights to convert their Laidlaw
Common Shares into any other securities of Laidlaw or any other entity. The
Laidlaw Common Shares are not subject to redemption or sinking fund redemption.
The Laidlaw Common Shares are listed on the NYSE under the symbol "LDW" and are
also listed on TSE and the Montreal Exchange under the symbol "LDM." Chase
Mellon Shareholders Services, LLC and CIBC Mellon Trust Company are the
co-transfer agents and co-registrars for the Laidlaw Common Shares.
PREFERENCE SHARES
The Laidlaw Board has the authority, without any vote or action by the holders
of Laidlaw Common Shares, to issue an unlimited number of preference shares in
one or more series. Subject to the terms of any outstanding Laidlaw Preference
Shares, the Laidlaw Board may fix the designations, preferences, limitations and
relative rights of the shares of each series issued, including without
limitation, dividend rates, conversion rights, voting rights, redemption and
sinking fund provisions, liquidation preferences and the number of shares
constituting each such series. The issuance of one or more series of preference
shares will likely decrease the amount of earnings and assets available for
distribution to holders of Laidlaw Common Shares as dividends or upon
liquidation and may adversely affect the rights and powers, including voting
rights, of the holders of Laidlaw Common Shares.
Under the Laidlaw Articles, Laidlaw is authorized to issue an unlimited number
of 5% Cumulative Convertible First Preference Shares Series G of Laidlaw
("Series G Preference Shares"). As of , 1998, 558,070 shares of
Series G Preference Shares were outstanding. The conversion rights of the Series
G Preference Shares have expired. The Series G Preference Shares are redeemable
at Laidlaw's discretion at Cdn. $20 per share. Under the terms of the Series G
Preference Shares, in each year ended February 18, Laidlaw is required to make
reasonable efforts to purchase an aggregate of 19,600 Series G Preference Shares
for cancellation at prices not exceeding Cdn. $20 per share. The holders of
Series G Preference Shares are entitled to receive quarterly dividends of Cdn
$0.25 per Series G Preference Share. Unless Laidlaw is past due on eight
quarterly
62
<PAGE> 69
dividend payments, the holders of Series G Preference Shares are not entitled to
vote on any matter presented to the Laidlaw shareholders. In the event of any
liquidation, dissolution or winding up, holders of Series G Preference Shares
will be entitled to receive distributions of Cdn $20 prior to any payment to the
holders of Laidlaw Common Shares.
RESTRICTIONS ON RESALES OF LAIDLAW COMMON SHARES BY AFFILIATES
The Laidlaw Common Shares that may be issued to holders of Greyhound Common
Stock in the Merger are being registered under the Securities Act of 1933, as
amended ("Securities Act"). However, because some Greyhound stockholders are or
may be affiliates of Greyhound at the time of the Special Meeting, such persons
will not be able to resell the Laidlaw Common Shares they receive in the Merger
(or, in the case of the Greyhound Preferred Stock, upon conversion of their
shares) unless their Laidlaw Common Shares are registered for resale under the
Securities Act, are sold in compliance with an applicable exemption from the
registration requirements of the Securities Act or are sold in compliance with
Rule 145 under the Securities Act ("Rule 145").
Rule 145 permits holders of securities received in a merger to sell such
securities without registration under the Securities Act if the sale is made in
compliance with Rule 144 under the Securities Act ("Rule 144") or certain
holding period requirements are satisfied. The applicable provisions of Rule 144
will allow a former Greyhound stockholder who holds Laidlaw Common Shares and
who is an affiliate of Greyhound to sell his or her Laidlaw Common Shares
without registration, if during any three-month period the Greyhound stockholder
limits the number of Laidlaw Common Shares he or she sells to a number that does
not exceed the greater of (i) 1% of the number of outstanding Laidlaw Common
Shares or (ii) the average weekly trading volume of the Laidlaw Common Shares
during the four calendar weeks preceding a specified date. The ability of a
Greyhound stockholder to sell his or her shares under Rule 144 is also subject
to the satisfaction of certain other requirements regarding the manner of sale
and the availability of current public information regarding Laidlaw. Rule 145
also permits a former Greyhound stockholder who holds Laidlaw Common Shares to
sell his or her shares without registration if (i) such holder is not an
affiliate of Laidlaw and a period of at least one year has elapsed since the
date that holder acquired his or her Laidlaw Common Shares in the Merger, and
Laidlaw meets the requirements of Rule 144 regarding the availability of current
public information, or (ii) such holder is not, and has not been for at least
three months, an affiliate of Laidlaw and a period of at least two years has
elapsed since the date such Laidlaw Common Shares were acquired from Laidlaw in
the Merger.
COMPARISON OF RIGHTS OF HOLDERS OF
GREYHOUND COMMON STOCK AND LAIDLAW COMMON SHARES
The rights of the holders of Greyhound Common Stock are governed by the DGCL,
the Greyhound Certificate and the Greyhound Bylaws. Following the Merger, the
holders of Greyhound Common Stock will become shareholders of Laidlaw if Laidlaw
elects to pay a portion of the Merger Consideration in Laidlaw Common Shares.
Laidlaw is a Canadian corporation and the rights of its shareholders are
governed by the Canada Business Corporations Act ("CBCA"). Following the Merger,
if Laidlaw elects to pay a portion of the Merger Consideration with Laidlaw
Common Shares, the rights of the holders of Greyhound Common Stock who receive
Laidlaw Common Shares in the Merger will be governed by the CBCA, the Laidlaw
Articles and the By-Laws of Laidlaw ("Laidlaw By-Laws").
63
<PAGE> 70
The following is a summary of certain differences between the rights of holders
of Laidlaw Common Shares and the rights of holders of Greyhound Common Stock.
This summary does not purport to be a complete discussion of, and is qualified
in its entirety by reference to, the DGCL, the CBCA, the Greyhound Certificate,
the Greyhound Bylaws, the Laidlaw Articles and the Laidlaw By-Laws.
VOTING RIGHTS GENERALLY
Greyhound. Holders of Greyhound Common Stock are each entitled to one vote per
share on all matters presented to the Greyhound stockholders.
Laidlaw. Holders of Laidlaw Common Shares are each entitled to one vote per
share on all matters presented to the Laidlaw shareholders.
VOTE ON EXTRAORDINARY CORPORATE TRANSACTIONS
Greyhound. Under the DGCL, mergers or consolidations or sales or exchanges of
all or substantially all of a corporation's assets, require the affirmative vote
of the board of directors (except in certain limited circumstances). In
addition, the affirmative vote of a majority of the outstanding stock of the
corporation entitled to vote on the matter may be required. Stockholder consent
is not required under the following circumstances: (i) for a corporation which
survives a merger and does not issue in the merger more than 20% of its
outstanding shares immediately prior to the merger, the merger agreement does
not amend in any respect the survivor's certificate of incorporation, each share
of the surviving corporation outstanding immediately prior to the merger remains
an identical outstanding share of the surviving corporation after the merger,
and stockholder approval is not required by the survivor's certificate of
incorporation; and (ii) for either corporation where one corporation owns 90% of
each class of outstanding stock of the other corporation.
Laidlaw. Under the CBCA, certain extraordinary corporate actions, such as
amalgamations (other than an amalgamation between a parent corporation and one
or more of its wholly owned subsidiaries or between two or more of such
subsidiaries), continuances, sales, leases or exchanges of all or substantially
all the property of a corporation other than in the ordinary course of business,
and other extraordinary corporate actions such as liquidations, dissolutions or
other arrangements, if ordered by a court, are required to be approved by the
shareholders of the corporation. Shareholder approval requires that a resolution
be passed by not less than a two-thirds vote of the shareholders entitled to
vote at the meeting called for the purpose of considering the extraordinary
corporate transaction, whether or not the shares held by the shareholders are
designated as voting shares in the corporation's articles of incorporation.
Under certain circumstances, a separate vote may be required by each affected
class or series, including by a class or series that does not otherwise carry
the right to vote.
DIVIDENDS AND DISTRIBUTIONS
Greyhound. Subject to restrictions contained in a corporation's certificate of
incorporation, the DGCL generally provides that the directors of a corporation
may declare and pay dividends out of the excess, if any, of net assets over
capital (as such term is defined in the DGCL) (the "Surplus"). If no Surplus
exists dividends may be paid out of net profits for the fiscal year in which the
dividend is declared and/or the preceding fiscal year. Dividends, however, may
not be paid out of net profits if the capital of the corporation is less than
the amount of capital represented by the issued and outstanding stock of all
classes having a preference on the distribution of assets. The Greyhound
Certificate provides that, subject to any prior rights and preferences (if any)
of any series or class of
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Greyhound Preferred Stock, the holders of Greyhound Common Stock are entitled to
receive dividends when declared by the Greyhound Board from legally available
funds. However, Greyhound is currently restricted from making distributions in
the form of dividends under certain of its existing debt agreements.
Laidlaw. Under the CBCA and subject to any restrictions contained in the
corporation's articles, the directors may declare and pay a dividend by issuing
shares or options or rights to acquire shares of the corporation's stock. A
corporation may not declare or pay a dividend if there are reasonable grounds
for believing that (i) the corporation is, or after payment of the dividend
would be, unable to pay its liabilities as they become due, or (ii) the
realizable value of the corporation's assets would be less than the aggregate of
its liabilities and its stated capital for all classes of stock. Laidlaw does
not have additional restrictions on the payment of dividends under the Laidlaw
Articles or the Laidlaw By-Laws.
AMENDMENT TO CHARTER
Greyhound. The DGCL requires stockholder approval for any amendment to a
corporation's certificate of incorporation. If the amendment to the certificate
of incorporation adversely affects the rights of a particular class or series of
stock, that class or series is entitled to vote separately on the amendment,
whether or not that class or series is designated as voting stock. Under the
Greyhound Certificate, the affirmative vote of the holders of not less than
two-thirds of the outstanding Greyhound shares entitled to vote on the matter,
is required in order to amend, repeal or adopt any provision of the Greyhound
Certificate.
Laidlaw. Under the CBCA, amendments to the articles of incorporation of a
corporation generally require the affirmative vote of at least two-thirds of the
votes cast by shareholders entitled to vote at the annual or special meeting
called for such purpose represented in person or by proxy. If the amendment to
the articles of incorporation is of a nature adversely affecting a particular
class or series, that class or series is entitled to vote separately on the
amendment, whether or not that class or series otherwise carries the right to
vote.
AMENDMENT TO BYLAWS
Greyhound. The DGCL states that stockholders entitled to vote shall have the
power to adopt, amend or repeal the bylaws of a corporation. However, the
corporation may, in its certificate of incorporation, confer such power on the
board of directors in addition to the stockholders. The Greyhound Certificate
expressly authorizes the Greyhound Board to adopt, amend or repeal the Greyhound
Bylaws by the affirmative vote of at least two-thirds of the members of the
Greyhound Board at any annual or special meeting of the Greyhound Board or by
the unanimous written consent of directors. The Greyhound Certificate and the
Greyhound Bylaws authorize the Greyhound stockholders to alter, amend or repeal
the Greyhound Bylaws by the affirmative vote of the holders of at least
two-thirds of the outstanding shares of the Greyhound Stock entitled to vote on
the matter.
Laidlaw. The CBCA provides that unless the articles of incorporation, bylaws or
unanimous shareholder agreement of a corporation provide otherwise, the
directors may, by resolution, make, amend or repeal any bylaws that regulate the
business or affairs of a corporation. Where the directors make, amend or repeal
a bylaw, they are required to submit the bylaw or amendment or repeal of a bylaw
to the shareholders for confirmation at the next annual or special meeting of
shareholders. The shareholders entitled to vote at shareholder meetings may
confirm, reject or amend any bylaw or amendment or repeal of a bylaw by a
resolution passed by a majority of the votes cast by
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shareholders entitled to vote at the annual or special meeting of shareholders
represented in person or by proxy.
INTERESTED STOCKHOLDER TRANSACTIONS
Greyhound. The DGCL generally prohibits a business combination between a
corporation and an "interested stockholder" within three years of the time that
person became an interested stockholder. An interested stockholder generally
includes a person who beneficially owns 15% or more of the outstanding voting
stock of the corporation. This provision does not apply if (i) the corporation's
board of directors approved the "interested stockholder" transaction prior to
the date the interested stockholder acquired his or her shares, (ii) as a result
of the "interested stockholder" transaction, the interested stockholder owned at
least 85% of the voting stock of the corporation outstanding at the time the
transaction commenced (excluding shares owned by persons who are both directors
and officers and by employee stock plans), or (iii) the "interested stockholder"
transaction is approved by the board of directors and the affirmative vote of
two-thirds of the outstanding voting stock of the disinterested stockholders at
an annual or special meeting.
Laidlaw. The CBCA does not contain a comparable provision with respect to
business combinations.
APPRAISAL AND DISSENT RIGHTS
Greyhound. Stockholders of a Delaware corporation who dissent from a merger or
consolidation of the corporation for which a stockholder's vote is required are,
in certain instances, entitled to appraisal rights. The exercise of appraisal
rights by any stockholder requires the surviving corporation to purchase the
dissenting shares of that stockholder at fair value. A stockholder entitled to
vote will not have rights of appraisal if his or her shares are either (i)
listed on a national securities exchange or designated as a national market
system security on an interdealer quotation system by the National Association
of Securities Dealers, Inc. (the "NASD"), or (ii) held of record by more than
2,000 stockholders. In addition, no appraisal rights are available under the
DGCL to holders of shares of stock of the constituent corporation surviving a
merger if the merger did not require for its approval the vote of the
stockholders of the surviving corporation. Rights of appraisal are, however,
available for shares of any class or series of stock of a constituent
corporation if the stockholders of that corporation are required by the terms of
the merger or consolidation to accept for their stock anything except (i) stock,
or depository receipts in respect thereof, of the surviving corporation, (ii)
stock or depository receipts in respect thereof of another corporation which is
either listed on a national securities exchange or designated as a national
market system security on an interdealer quotation system by the NASD, or held
of record by more than 2,000 stockholders, (iii) cash in lieu of fractional
shares or fractional depository receipts, or (iv) some combination of the above.
Laidlaw. Shareholders of a Canadian corporation are entitled to exercise dissent
rights and to be paid the fair value of their shares in connection with (i) an
amendment to a corporation's articles of incorporation to add, change or remove
any provisions restricting or constraining the issue, transfer or ownership of
shares of the class held by holders of the class so affected; (ii) an amendment
to a corporation's articles of incorporation to add, change or remove any
restriction upon the business of the corporation; (iii) an amalgamation (other
than an amalgamation between a parent corporation and one or more of its wholly
owned subsidiaries or between two or more of such subsidiaries); (iv) a
continuance under the laws of another jurisdiction; (v) a sale, lease or
exchange of all or substantially all the property of the corporation other than
in the ordinary course of business; or (vi) a court order permitting a
shareholder to dissent. A shareholder, however, is not entitled to dissent if an
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amendment to the articles of incorporation is effected by a court order
approving a reorganization or a court order rectifying a matter that is
oppressive or unfairly prejudicial to or that unfairly disregards the interests
of any security holder, creditor, director or officer.
DIRECTOR QUALIFICATIONS
Greyhound. The DGCL does not have any residency or other director qualification
requirements. The Greyhound Bylaws require that directors must have obtained the
age of majority.
Laidlaw. A majority of the directors of a corporation governed by the CBCA
generally must be resident Canadians. In addition, anyone who is less than 18
years of age, found by a court in Canada or elsewhere to be of unsound mind, not
an individual, or has the status of bankrupt is disqualified from being director
of a corporation.
ELECTION OF DIRECTORS
Greyhound. Under the DGCL, directors are elected at each annual stockholder
meeting unless their terms are staggered. Vacancies on the board of directors
may be filled by the stockholders or directors, unless the certificate of
incorporation or a bylaw provides otherwise. The certificate of incorporation
may authorize the election of certain directors by one or more classes or series
of shares, and the certificate of incorporation, an initial bylaw or a bylaw
adopted by the required vote of the stockholders may provide for staggered terms
for the directors. The Greyhound Certificate provides for classification of the
board of directors into three classes of directors with each class consisting of
three directors and elected for a three-year term and only one class standing
for election each year. In addition, the Greyhound Bylaws provide that newly
created directorships resulting from an increase in the authorized number of
directors or any vacancies of the board resulting from the death, resignation,
retirement, disqualification or removal from office for cause shall be filled
only by a majority vote of the directors then in office, though less than a
quorum. The directors elected to fill these vacancies will hold office for the
full term of office of the class to which they have been elected. There is no
cumulative voting in the election of directors. The affirmative vote of the
holders of at least two-thirds of the outstanding voting stock of Greyhound
entitled to vote thereon is required to amend or repeal this provision.
Laidlaw. Under the CBCA, directors are elected at each annual meeting at which
an election of directors is required. The Laidlaw Articles and the Laidlaw
By-Laws provide that the number of directors shall not be less than three and
not be more than fifteen. Laidlaw does not have a classified board of directors.
There is no cumulative voting in the election of directors.
REMOVAL OF DIRECTORS
Greyhound. Under the DGCL, if the board is classified, unless the certificate of
incorporation provides otherwise, any director or the entire board of directors
may be removed only for cause by vote of the holders of a majority of the shares
then entitled to vote at an election of directors. The Greyhound Certificate
does not provide for any further restrictions.
Laidlaw. The shareholders of a corporation governed by the CBCA may by
resolution passed by a majority of the votes cast at a meeting of shareholders
called for that purpose, remove any director before the expiration of his or her
term of office and may elect any qualified person to hold the office of that
director for the remainder of his or her term.
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VACANCY ON BOARD OF DIRECTORS
Greyhound. Under the DGCL, any vacancy in the board of directors, may be filled
by vote of a majority of the directors then in office, although less than a
quorum, or by a sole remaining director unless the certificate of incorporation
or bylaws provide otherwise. In addition, the Greyhound Bylaws provide that
newly created directorships resulting from an increase in the authorized number
of directors or any vacancies of the board resulting from the death,
resignation, retirement, disqualification or removal from office for cause shall
be filled only by a majority vote of the directors then in office, though less
than a quorum. The directors elected to fill these vacancies will hold office
for the full term of office of the class to which they have been elected.
Laidlaw. Generally, under the CBCA, if a vacancy should occur in the board of
directors, the remaining directors, if constituting a quorum, may appoint a
qualified person to fill the vacancy for the remainder of the vacating
director's term, unless the vacancy was created by an increase in the number of
directors. In the absence of a quorum, the remaining directors shall call a
meeting of shareholders to fill the vacancy. The Laidlaw By-Laws provide that
vacancies on the Laidlaw Board will be filled by (i) the Laidlaw shareholders at
a special meeting called for such purpose, or (ii) the remaining directors,
unless no quorum exists or the vacancy results from an increase in the number of
directors or from a failure to elect the number of directors required by the
Laidlaw Articles, in any of which events the directors then in office shall call
a special meeting of shareholders to fill the vacancy.
DIRECTORS AND OFFICER INDEMNIFICATION
Greyhound. Under the DGCL, a corporation may indemnify any person who was or is
a party or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal, administrative or
investigative (other than an action by or in the right of the corporation) by
reason of the fact that the person is or was a director, officer, employee or
agent of the corporation, partnership, joint venture, trust or other enterprise,
against certain expenses. These expenses may include attorneys' fees, judgments,
fines and amounts paid in settlement actually and reasonably incurred by that
person in connection with the action, suit or proceeding. A corporation's
indemnification obligations apply only if the person acted in good faith and in
a manner the person reasonably believed was in or not opposed to the best
interests of the corporation, and, with respect to any criminal action or
proceeding, had no reasonable cause to believe his or her conduct was unlawful.
The DGCL also provides that a corporation may indemnify any person who was or is
a party or is threatened to be made a party to any threatened, pending or
completed action or suit by or in the right of the corporation to procure a
judgment in its favor by reason of the fact that the person is or was a
director, officer, employee or agent of the corporation, or is or was serving at
the request of the corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other enterprise,
against expenses (including attorneys' fees) actually and reasonably incurred by
the person in connection with the defense or settlement of such action or suit.
A corporation's indemnification obligations apply only if the person acted in
good faith and in a manner the person reasonably believed to be in or not
opposed to the best interest of the corporation. However, no indemnification may
be made in respect of any claim, issue or matter as to which such person shall
have been adjudged to be liable to the corporation unless and only to the extent
that the Court of Chancery or the court in which such action or suit was brought
determines upon application that, despite the adjudication of liability, but in
view of all the circumstances of the case, such person is fairly and reasonably
entitled to indemnity for such expenses which the Court of Chancery or such
other court deems proper.
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Under the DGCL, to the extent that a present or former director or officer of a
corporation has been successful on the merits or otherwise in defense of any
action, suit or proceeding referred to in the immediately preceding sentence, or
in defense of any claim, issue or matter referred to therein, such person must
be indemnified against expenses (including attorneys' fees) actually and
reasonably incurred by such person.
The DGCL provides that any indemnification under the provisions described in the
second preceding paragraph (unless ordered by a court) will be made by the
corporation only as authorized in the specific case upon a determination that
indemnification of the present or former director, officer, employee or agent is
proper in the circumstances because the person has met the applicable standard
of conduct. The determination will be made, with respect to a person who is a
director or officer at the time of such determination, (i) by a majority vote of
the directors who are not parties to such action, suit or proceeding, even
though less than a quorum, (ii) by a committee of those directors designated by
majority vote of such directors, even though less than a quorum, (iii) if there
are no such directors, or if such directors so direct, by independent legal
counsel in a written opinion, or (iv) by the stockholders. Under the DGCL,
expenses (including attorneys' fees) incurred by an officer or director in
defending any civil, criminal, administrative or investigative action, suit or
proceeding may be paid by the corporation in advance of the final disposition of
such action, suit or proceeding if the corporation receives an undertaking by or
on behalf of such director or officer to repay the advance if it shall
ultimately be determined that such person is not entitled to be indemnified by
the corporation. Such expenses (including attorney's fees) incurred by former
directors and officers or other employees and agents may be so paid upon such
terms and conditions, if any, as the corporation deems appropriate.
Under the DGCL, a corporation has the power to purchase and maintain insurance
on behalf of any person who is or was a director, officer, employee or agent of
the corporation, or is or was serving at the request of the corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise, against any liability asserted against such
person and incurred by such person in any such capacity, or arising out of such
person's status as such, whether or not the corporation would have the power to
indemnify such person against such liability under the DGCL.
The Greyhound Certificate (i) requires indemnification to the full extent
authorized by the DGCL, and (ii) provides for advance payments, as permitted by
the DGCL.
Laidlaw. The CBCA generally provides that a corporation may indemnify its
present and former directors and officers or a person who acts or acted at the
corporation's request as a director or officer of a body corporate of which the
corporation is or was a shareholder or creditor, and his or her heirs and legal
representatives (an "Indemnifiable Person") against all costs, charges and
expenses, including an amount paid to settle an action or satisfy a judgment
reasonably incurred by him or her in respect of any civil, criminal or
administrative action or proceeding to which he or she is made a party by reason
of being or having been a director or officer of such corporation. However, such
indemnity is limited to circumstances in which the director or officer acted
honestly and in good faith with a view to the best interests of the corporation,
and in the case of a criminal or administrative action or proceeding that is
enforced by a monetary penalty, the director or officer must have had reasonable
grounds for believing that his or her conduct was lawful. Subject to the
foregoing limitations, a corporation may, with the approval of a court, also
indemnify an Indemnifiable Person against all costs, charges and expenses
reasonably incurred by such person in respect of an action by or on behalf of
the corporation or body corporate to procure a judgment in its favor, to which
such
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person is made a party by reason of being or having been a director or an
officer of the corporation or body corporate.
Further, an Indemnifiable Person is entitled to indemnity from the corporation
against all costs, charges and expenses reasonably incurred by him or her in
connection with the defense of any civil, criminal or administrative action or
proceeding to which he or she is made a party by reason of being or having been
a director or officer of the corporation or body corporate. The corporation's
indemnification obligations apply if the Indemnifiable Person was substantially
successful on the merits in his or her defense of the action or proceeding,
acted honestly and in good faith with a view to the best interests of the
corporation and, in the case of a criminal or administrative action or
proceeding that is enforced by a monetary penalty, had reasonable grounds for
believing that his or her conduct was lawful.
Except in the case of derivative actions, the Laidlaw By-Laws require
indemnification for each present or former director and officer of the
corporation, and every person who acts or has acted at the corporation's request
as a director or officer of another corporation of which Laidlaw is or was a
shareholder or creditor and every person who has undertaken any liability on
behalf of Laidlaw, and the heirs and legal representatives of every such person,
against and from all costs, charges and expenses, including an amount paid to
settle an action or satisfy a judgment, reasonably incurred by him in respect of
any civil, criminal or administrative action or proceeding to which he or she is
made a party by reason of being or having been such a director or officer or
having undertaken such liability, if he or she acted honestly and in good faith
with a view to Laidlaw's best interests, and, in the case of a criminal or
administrative action or proceedings that is enforced by a monetary penalty, he
or she had reasonable grounds for believing his conduct was lawful.
The CBCA does not expressly contemplate the advance payment of an indemnitee's
expenses prior to the final disposition of an action.
DIRECTOR EXCULPATION
Greyhound. Under the DGCL, a corporation is permitted to include a provision in
its certificate of incorporation which limits or eliminates the liability of
directors to the corporation or its stockholders for monetary damages for breach
of their fiduciary duty as a director, provided such liability does not arise
from certain prescribed conduct, including intentional misconduct and breach of
the duty of loyalty. The Greyhound Certificate contains such a provision
limiting the liability of its directors.
Laidlaw. The CBCA has no comparable provision.
SPECIAL MEETING OF SHAREHOLDERS
Greyhound. Under the DGCL, a special meeting of the stockholders can be called
by the board of directors or any person so authorized in the certificate of
incorporation or in the bylaws. The Greyhound Certificate and the Greyhound
Bylaws permits a special meeting to be called by the Greyhound Board pursuant to
a resolution adopted by the Chairman of the Greyhound Board, by a majority of
the members of the Greyhound Board, or by any holder or holders of at least 25%
of the outstanding shares of the capital stock of Greyhound entitled to vote
generally in the election of directors (considered for this purpose as one
class).
Laidlaw. Under the CBCA, a special meeting of shareholders may be called by the
directors of a corporation and must be called by the board of directors when so
requested by holders of not less
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than 5% of the shareholders entitled to vote at the meeting. Under the Laidlaw
By-Laws, the Laidlaw Board has the power to call a special meeting of
shareholders.
QUORUM REQUIREMENTS
Greyhound. Under the DGCL, a quorum of stockholders means a majority of the
shares entitled to vote, present in person or represented by proxy unless
otherwise specified in the certificate of incorporation or in the bylaws, but in
no event can the quorum be less than one-third of the shares entitled to vote at
the meeting. The Greyhound Bylaws state that a quorum shall be the holders,
present in person or by proxy, of a majority of the shares of the capital stock
of Greyhound issued and outstanding and entitled to vote at the meeting.
Laidlaw. Under the CBCA, a quorum of shareholders means a majority of the
outstanding shares entitled to vote at a meeting of shareholders, unless
otherwise specified in the bylaws. The Laidlaw By-Laws provide that one or more
shareholders, present in person or represented by proxy, and holding not less
than one-third of the shares outstanding and entitled to vote, shall constitute
a quorum of shareholders.
RIGHTS PLAN
Greyhound. The Greyhound Board adopted the Greyhound Rights Plan which may have
the effect of discouraging certain types of transactions that involve an actual
or threatened change in control of Greyhound. Under the Greyhound Rights Plan,
stockholders of Greyhound hold rights to purchase stock in Greyhound, or in an
acquirer of Greyhound, at a discounted price, under certain circumstances and in
the event of particular hostile efforts to acquire control of Greyhound. The
rights may be redeemed pursuant to the Greyhound Rights Plan by the Greyhound
Board. The Greyhound Board has taken action to exempt the Merger and the related
transactions from triggering Greyhound's stockholders' rights under the
Greyhound Rights Plan.
Laidlaw. Laidlaw has not adopted any agreement or plan similar to the Greyhound
Rights Plan.
INSPECTION OF BOOKS AND RECORDS
Greyhound. Under the DGCL, any stockholder has the right to examine the books
and records of the corporation for any proper purpose.
Laidlaw. The CBCA provides that shareholders, creditors, their agents and legal
representatives may examine certain of the records of a corporation during usual
business hours and take extracts therefrom, free of charge.
STOCKHOLDER CONSENT IN LIEU OF MEETING
Greyhound. Under the DGCL, unless otherwise provided in the articles of
incorporation, action by stockholders of a corporation may be taken without a
meeting if a consent in writing is signed by the holders of the outstanding
stock having not less than the minimum number of votes that would be necessary
to authorize such action at a meeting at which all shares entitled to vote were
present and voted. The Greyhound Certificate specifically prohibits stockholder
action by written consent.
Laidlaw. Under the CBCA, a shareholder action without a meeting may only be
taken by written resolution signed by all shareholders who would be entitled to
vote on the matter at a meeting.
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LEGAL MATTERS
The validity of the Laidlaw Common Shares to be issued in connection with the
Merger will be passed upon for Laidlaw by Ivan R. Cairns, Esq., Senior Vice
President and General Counsel of Laidlaw. As of the date of this Proxy
Statement/Prospectus, Mr. Cairns beneficially owned 207,000 Laidlaw Common
Shares.
EXPERTS
The consolidated financial statements of Greyhound incorporated by reference in
this Proxy Statement/Prospectus and elsewhere in the Registration Statement have
been audited by Arthur Andersen LLP, independent auditors, as indicated in their
report with respect thereto, and are incorporated herein by reference in
reliance upon the authority of such firm as experts in accounting and auditing.
The consolidated financial statements of Laidlaw and Laidlaw Environmental
Services, Inc. (doing business as Safety-Kleen Corp.) appearing in Laidlaw's
Annual Report on Form 10-K for the year ended August 31, 1998, have been audited
by PricewaterhouseCoopers, LLP as set forth in their reports thereon included
therein and incorporated herein by reference. Such consolidated financial
statements are incorporated herein by reference in reliance upon such reports
given upon the authority of such firm as experts in accounting and auditing.
AVAILABLE INFORMATION
Laidlaw and Greyhound are subject to the informational requirements of the
Exchange Act. Both Laidlaw and Greyhound file reports, proxy statements and
other information with the SEC. You may read and copy such reports, proxy
statements and other information at the public reference facilities maintained
by the SEC at:
450 Fifth Street N.W. 7 World Trade Center Citicorp Center
Room 1024 Suite 1300 500 West Madison Street
Washington, D.C. 20549 New York, New York 10048 Suite 1400
Chicago, Illinois 60661
You may also obtain copies of such reports, proxy statements and other
information from the Public Reference Section of the SEC, 450 Fifth Street,
N.W., Washington, D.C. 20549, at prescribed rates. You may obtain information on
the operation of the Public Reference Room by calling the SEC at 1-800-SEC-0330.
The SEC also maintains an Internet website, located at http://www.sec.gov, that
contains reports, proxy statements and other information regarding registrants
that file electronically with the SEC.
You may also read reports, proxy statements and other information relating to
Greyhound at the offices of The American Stock Exchange, at 86 Trinity Place,
New York, New York 10006.
You may also read reports, proxy statements and other information relating to
Laidlaw at the offices of the New York Stock Exchange at 20 Broad Street, New
York, New York 10005.
This Proxy Statement/Prospectus omits certain information that is contained in
the Registration Statement. Any statements contained in this Proxy
Statement/Prospectus as concerning the provisions of any other document are not
necessarily complete, and, in each instance, reference is
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made to the copy of such document filed as an exhibit to the Registration
Statement or otherwise filed with the SEC. Each such statement is qualified in
its entirety by such reference.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
Greyhound hereby incorporates by reference into this Proxy Statement/Prospectus
the following documents which have been filed with the SEC: (i) Annual Report on
Form 10-K for the year ended December 31, 1997; (ii) Quarterly Reports on Form
10-Q for the periods ended March 31, 1998, June 30, 1998 and September 30, 1998;
and Current Report on Form 8-K dated October 16, 1998.
Laidlaw hereby incorporates by reference into this Proxy Statement/Prospectus
the Annual Report on Form 10-K for the fiscal year ended August 31, 1998 which
has been filed with the SEC.
All documents and reports filed by either Greyhound or Laidlaw pursuant to
Section 13(a), 13(c), 14, or 15(d) of the Exchange Act after the date of this
Proxy Statement/Prospectus and on or prior to the date of the Special Meeting
are deemed to be incorporated by reference in this Proxy Statement/Prospectus
from the date of filing of such documents or reports. Any statement contained in
a document incorporated or deemed to be incorporated by reference herein shall
be deemed to be modified or superseded for purposes of this Proxy
Statement/Prospectus to the extent that a statement contained herein or in any
other subsequently filed document which also is or is deemed to be incorporated
by reference in this Proxy Statement/Prospectus modifies or supersedes such
statement. Any statement so modified or superseded shall not be deemed, except
as so modified or superseded, to constitute a part of this Proxy
Statement/Prospectus.
Any person receiving a copy of this Proxy Statement/Prospectus may obtain,
without charge, upon written or oral request, a copy of any of the documents
incorporated by reference except for the exhibits to such documents (other than
the exhibits expressly incorporated in such documents by reference). In order to
ensure timely delivery of the documents, any request should be made by
, 199 . Requests should be directed to:
- in the case of Greyhound, Greyhound Lines, Inc., 15110 N. Dallas Parkway,
Suite 600, Dallas, Texas 75248, Attention: Investor Relations (telephone
number 972-789-7297); and
- in the case of Laidlaw, Laidlaw Inc. 3221 North Service Road, Burlington,
Ontario, Canada L7R 3Y8, Attention: Investor Relations (telephone number
905-336-1800).
FORWARD-LOOKING INFORMATION
This Proxy Statement/Prospectus contains forward-looking statements. These
forward-looking statements are based upon the beliefs and assumptions of, and on
information available to, the managements of Greyhound and Laidlaw. These
forward-looking statements can be identified by the use of forward-looking words
such as "believe," "may," "will," "expect," "intend," "anticipate," "estimate"
or "continue" or the negative of, or other variations on, these words or any
comparable words. These forward-looking statements may involve known and unknown
risks, uncertainties and other factors relating to the businesses and results of
operations of Greyhound and Laidlaw, including (i) the final outcome with
respect to the tax litigation involving Laidlaw's U.S. subsidiaries; (ii) the
impact of the Year 2000 issue on Greyhound or Laidlaw; (iii) material changes in
operating expenses; (iv) the ongoing need for capital expenditures; (v)
competitive factors and pricing pressures; (vi) general economic conditions;
(vii) adverse changes in governmental rules and policies; (viii) the impact of
current and future laws; and (ix) other factors included under "Risk Factors"
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and elsewhere in, or deemed to be incorporated in, this Proxy
Statement/Prospectus. Should one or more of these assumptions prove incorrect,
the actual results of Laidlaw may be materially different from the future
results expressed or implied by such forward-looking statements. Accordingly,
you should not place undue reliance on such forward-looking statements.
DISCLAIMER
Except for the information contained in this Proxy Statement/Prospectus, neither
Greyhound nor Laidlaw has authorized any person to give any information or to
make any representation regarding the Merger or the issuance of Laidlaw Common
Shares. This Proxy Statement/Prospectus does not constitute an offer to sell or
a solicitation of an offer to buy Laidlaw Common Shares or any other security in
any circumstances in which such offer or solicitation would be unlawful. Neither
the delivery of this Proxy Statement/Prospectus nor any distribution of Laidlaw
Common Shares made hereunder shall, under any circumstances, imply that the
information contained herein is correct as of any date after the date hereof.
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APPENDIX A
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
AMENDED AND RESTATED
AGREEMENT AND PLAN OF MERGER
BY AND AMONG
LAIDLAW INC.
LAIDLAW TRANSIT ACQUISITION CORP.
and
GREYHOUND LINES, INC.
Dated as of November 5, 1998
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
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Table of Contents
<TABLE>
<S> <C> <C>
ARTICLE I
THE MERGER.................................................................. A-6
SECTION 1.1 The Merger.................................................. A-6
SECTION 1.2 Effective Time.............................................. A-6
SECTION 1.3 Effect of the Merger........................................ A-7
SECTION 1.4 Certificate of Incorporation, By-Laws....................... A-7
SECTION 1.5 Directors and Officers...................................... A-7
SECTION 1.6 Effect on Capital Stock..................................... A-7
SECTION 1.7 Exchange of Certificates.................................... A-8
SECTION 1.8 Stock Transfer Books........................................ A-10
SECTION 1.9 No Further Ownership Rights in Company Common Shares........ A-10
SECTION 1.10 Lost, Stolen or Destroyed Certificates...................... A-10
SECTION 1.11 Taking of Necessary Action; Further Action.................. A-11
SECTION 1.12 Stockholders' Meeting....................................... A-11
SECTION 1.13 Material Adverse Effect..................................... A-11
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF THE COMPANY............................... A-12
SECTION 2.1 Organization and Qualification; Subsidiaries................ A-12
SECTION 2.2 Certificate of Incorporation and By-Laws.................... A-12
SECTION 2.3 Capitalization.............................................. A-12
SECTION 2.4 Authority Relative to this Agreement........................ A-13
SECTION 2.5 No Conflict; Required Filings and Consents.................. A-13
SECTION 2.6 Compliance.................................................. A-14
SECTION 2.7 SEC Filings; Financial Statements........................... A-15
SECTION 2.8 Absence of Certain Changes or Events........................ A-15
SECTION 2.9 No Undisclosed Liabilities.................................. A-15
SECTION 2.10 Absence of Litigation....................................... A-16
SECTION 2.11 Employee Benefit Plans, Employment Agreements............... A-16
SECTION 2.12 Labor Matters............................................... A-17
SECTION 2.13 Restrictions on Business Activities......................... A-17
SECTION 2.14 Taxes....................................................... A-17
SECTION 2.15 Intellectual Property....................................... A-19
SECTION 2.16 Rights Agreement............................................ A-19
SECTION 2.17 Opinion of Financial Advisor................................ A-19
SECTION 2.18 Brokers..................................................... A-19
SECTION 2.19 Section 203 of the Delaware Law Not Applicable.............. A-19
</TABLE>
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<TABLE>
<S> <C> <C>
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF PARENT AND ACQUISITION.................... A-20
SECTION 3.1 Organization and Qualification; Subsidiaries................ A-20
SECTION 3.2 Certificate and Articles of Amalgamation and By-Laws........ A-20
SECTION 3.3 Capitalization.............................................. A-20
SECTION 3.4 Authority Relative to this Agreement........................ A-21
SECTION 3.5 No Conflict, Required Filings and Consents.................. A-21
SECTION 3.6 Compliance.................................................. A-22
SECTION 3.7 SEC Filings; Financial Statements........................... A-22
SECTION 3.8 Absence of Certain Changes or Events........................ A-22
SECTION 3.9 No Undisclosed Liabilities.................................. A-23
SECTION 3.10 Absence of Litigation....................................... A-23
SECTION 3.11 Labor Matters............................................... A-23
SECTION 3.12 Restrictions on Business Activities......................... A-23
SECTION 3.13 No Prior Activities; Financing.............................. A-23
SECTION 3.14 Taxes....................................................... A-24
SECTION 3.15 Intellectual Property....................................... A-25
SECTION 3.16 Brokers..................................................... A-25
ARTICLE IV
ADDITIONAL AGREEMENTS....................................................... A-25
SECTION 4.1 Preparation of Form S-4; Proxy Statement/Prospectus......... A-25
SECTION 4.2 Company Information......................................... A-25
SECTION 4.3 Parent Information.......................................... A-26
SECTION 4.4 Meeting of the Company's Stockholders....................... A-26
SECTION 4.5 Reasonable Best Efforts..................................... A-26
SECTION 4.6 Letter of the Company's Accountants......................... A-26
SECTION 4.7 Letter of Parent's Accountants.............................. A-26
SECTION 4.8 Stock Exchange Listings..................................... A-27
SECTION 4.9 Stock Options............................................... A-27
SECTION 4.10 Access to Information; Confidentiality...................... A-27
SECTION 4.11 Consents; Approvals......................................... A-28
SECTION 4.12 Indemnification and Insurance............................... A-28
SECTION 4.13 Continuation of Company Employee Plans...................... A-30
SECTION 4.14 Notification of Certain Matters............................. A-30
SECTION 4.15 Further Action.............................................. A-30
SECTION 4.16 Public Announcements........................................ A-31
SECTION 4.17 Conveyance Taxes............................................ A-31
SECTION 4.18 Company Preferred Shares.................................... A-31
</TABLE>
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<TABLE>
<S> <C> <C>
ARTICLE V
CONDUCT OF BUSINESS PENDING THE MERGER...................................... A-31
SECTION 5.1 Conduct of Business by the Company Pending the Merger....... A-31
SECTION 5.2 No Solicitation............................................. A-33
ARTICLE VI
CONDITIONS TO THE MERGER.................................................... A-34
SECTION 6.1 Conditions to Obligation of Each Party to Effect the
Merger...................................................... A-34
SECTION 6.2 Conditions to Obligations of Parent and Acquisition......... A-35
SECTION 6.3 Conditions to Obligation of the Company..................... A-35
ARTICLE VII
TERMINATION................................................................. A-35
SECTION 7.1 Termination................................................. A-35
SECTION 7.2 Effect of Termination....................................... A-36
SECTION 7.3 Fees and Expenses........................................... A-36
ARTICLE VIII
GENERAL PROVISIONS.......................................................... A-37
SECTION 8.1 Effectiveness of Representations, Warranties and Agreements;
Knowledge, Etc.............................................. A-37
SECTION 8.2 Notices..................................................... A-37
SECTION 8.3 Certain Definitions......................................... A-38
SECTION 8.4 Amendment................................................... A-39
SECTION 8.5 Waiver...................................................... A-39
SECTION 8.6 Headings.................................................... A-39
SECTION 8.7 Severability................................................ A-39
SECTION 8.8 Entire Agreement............................................ A-39
SECTION 8.9 Assignment; Guarantee of Acquisition Obligations............ A-39
SECTION 8.10 Parties in Interest......................................... A-39
SECTION 8.11 Failure or Indulgence Not Waiver; Remedies Cumulative....... A-40
SECTION 8.12 Governing Law............................................... A-40
SECTION 8.13 Consent to Jurisdiction and Service of Process.............. A-40
SECTION 8.14 Counterparts................................................ A-41
</TABLE>
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Table of Schedules
Company Disclosure Schedule
<TABLE>
<S> <C>
Section 1.5 -- Directors and Officers
Section 2.1 -- Organization and Qualification; Subsidiaries
Section 2.3 -- Capitalization
Section 2.5(a) -- Material Contracts
Section 2.5(b) -- Conflicts
Section 2.5(c) -- Required Filings and Consents
Section 2.6(a) -- Compliance
Section 2.6(b) -- Company Permits
Section 2.7 -- SEC Filings
Section 2.8 -- Changes and Events
Section 2.9 -- Undisclosed Liabilities
Section 2.10 -- Litigation
Section 2.11(a) -- Employee Benefit Plans
Section 2.11(b) -- Retiree Welfare Benefits; Prohibited Transactions and
Compliance
Section 2.11(c) -- Employee Stock Options
Section 2.11(d) -- Employment/Severance Agreements
Section 2.12 -- Labor Matters
Section 2.13 -- Restrictions on Business Activities
Section 2.14(b) -- Taxes
Section 2.15 -- Intellectual Property
Section 4.13(c) -- Continuation of Company Employee Benefit Plans
Section 5.1 -- Conduct of Business by the Company Pending the Merger
Section 5.1(e) -- Permitted Acquisitions
Section 5.1(f) -- Compensation Increases to Officers or Employees
</TABLE>
Parent Disclosure Schedule
<TABLE>
<S> <C>
Section 3.5(a) -- Conflicts
Section 3.5(b) -- Required Filings and Consents
Section 3.6 -- Compliance
Section 3.7 -- SEC Filings
Section 3.8 -- Changes and Events
Section 3.9 -- Undisclosed Liabilities
Section 3.10 -- Litigation
Section 3.11 -- Labor Matters
Section 3.12 -- Restrictions on Business Activities
Section 3.14 -- Taxes
Section 3.15 -- Intellectual Property
</TABLE>
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AMENDED AND RESTATED AGREEMENT AND PLAN OF MERGER
THIS AMENDED AND RESTATED AGREEMENT AND PLAN OF MERGER (this "Agreement"),
dated as of October 16, 1998 and amended and restated as of November 5, 1998, is
among Greyhound Lines, Inc., a Delaware corporation (the "Company"), Laidlaw
Inc., a Canadian corporation ("Parent"), and Laidlaw Transit Acquisition Corp.,
a Delaware corporation and a wholly owned subsidiary of Parent ("Acquisition").
For the purposes of this Agreement, the date of this Agreement shall be deemed
to be October 16, 1998.
WHEREAS, the Boards of Directors of Parent and Acquisition have each
approved the merger of Acquisition with and into the Company (the "Merger") upon
the terms and subject to the conditions set forth herein;
WHEREAS, the Board of Directors of the Company (the "Board") (i) determined
that the Merger and the transactions contemplated thereby are fair to and in the
best interests of the Company and its stockholders and (ii) on the terms and
subject to the provisions hereinafter set forth, approved this Agreement and the
transactions contemplated hereby and resolved to recommend the adoption of this
Agreement by the stockholders of the Company; and
WHEREAS, the Company, Parent and Acquisition desire to amend and restate
the Agreement on the terms and subject to the conditions set forth below.
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants
and agreements herein contained, and intending to be legally bound hereby, the
Company, Parent and Acquisition hereby agree as follows:
ARTICLE I
THE MERGER
SECTION 1.1 The Merger.
(a) Effective Time. At the Effective Time (as defined below), and subject
to and upon the terms and conditions of this Agreement and the Delaware General
Corporation Law (the "Delaware Law"), Acquisition shall be merged with and into
the Company, the separate corporate existence of Acquisition shall cease, and
the Company shall continue as the surviving corporation. The Company as the
surviving corporation after the Merger is hereinafter sometimes referred to as
the "Surviving Corporation."
(b) Closing. Unless this Agreement shall have been terminated and the
transactions herein contemplated shall have been abandoned pursuant to Section
7.1, and subject to the satisfaction or waiver of the conditions set forth in
Article VI, the consummation of the Merger will take place as promptly as
practicable (and in any event within one business day) after satisfaction or
waiver of the conditions set forth in Article VI, at the offices of Jones, Day,
Reavis & Pogue, Dallas, Texas, unless another date, time or place is agreed to
in writing by the parties hereto (the "Closing Date").
SECTION 1.2 Effective Time. As promptly as practicable after the
satisfaction or waiver of the conditions set forth in Article VI, the parties
hereto shall cause the Merger to be consummated by filing a certificate of
merger as contemplated by the Delaware Law (the "Certificate of Merger"),
together with any required related certificates, with the Secretary of State of
the State of Delaware,
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in such form as required by, and executed in accordance with the relevant
provisions of, the Delaware Law (the time of such filing being the "Effective
Time").
SECTION 1.3 Effect of the Merger. At the Effective Time, the effect of the
Merger shall be as provided in this Agreement, the Certificate of Merger and the
applicable provisions of the Delaware Law. Without limiting the generality of
the foregoing, and subject thereto, at the Effective Time all the property,
rights, privileges, powers and franchises of the Company and Acquisition shall
vest in the Surviving Corporation, and all debts, liabilities, obligations and
duties of the Company and Acquisition shall become the debts, liabilities,
obligations and duties of the Surviving Corporation.
SECTION 1.4 Certificate of Incorporation, By-Laws.
(a) Certificate of Incorporation. Unless otherwise determined by Parent
prior to the Effective Time, at the Effective Time the Certificate of
Incorporation of the Surviving Corporation shall be amended to become identical
to the Certificate of Incorporation of Acquisition, as in effect immediately
prior to the Effective Time; provided, however, that such amendment to the
Certificate of Incorporation of the Surviving Corporation shall not amend (i)
the name of the Surviving Corporation (ii) the terms of the Company Preferred
Shares (as defined in Section 1.6(a)(ii)) provided in the Certificate of
Designations with respect to the Company Preferred Shares, (iii) the voting
rights as specified in Article Fourth of the Certificate of Incorporation of the
Company with respect to the Company Preferred Shares and (iv) the provisions
regarding indemnification and insurance as described in Section 4.12.
(b) By-Laws. The By-Laws of Acquisition, as in effect immediately prior to
the Effective Time, shall be the By-Laws of the Surviving Corporation until
thereafter amended as provided by the Delaware Law, the Certificate of
Incorporation of the Surviving Corporation and such By-Laws.
SECTION 1.5 Directors and Officers. The directors of Acquisition
immediately prior to the Effective Time shall be the initial directors of the
Surviving Corporation, each to hold office in accordance with the Certificate of
Incorporation and By-Laws of the Surviving Corporation, and, except as set forth
in Section 1.5 of the Company Disclosure Schedule, the officers of the Company
immediately prior to the Effective Time shall be the initial officers of the
Surviving Corporation, in each case until their respective successors are duly
elected or appointed and qualified.
SECTION 1.6 Effect on Capital Stock. At the Effective Time, by virtue of
the Merger and without any action on the part of Parent, Acquisition, the
Company or the holders of any of the following securities:
(a) Conversion of Securities.
(i) Each share of common stock, par value $.01 per share of
the Company (each a "Company Common Share" and collectively, the
"Company Common Shares") issued and outstanding immediately prior to the
Effective Time (excluding any Company Common Shares to be canceled
pursuant to Section 1.6(c)) shall be converted into the right to receive
$6.50 in value (the "Merger Consideration"). The Merger Consideration
shall be payable in cash, subject to Parent's option in Section 1.6(b)
below.
(ii) Each share of 8 1/2% Convertible Exchangeable Preferred
Stock, par value $.01 per share, of the Company (each a "Company
Preferred Share" and collectively, the "Company Preferred Shares")
issued and outstanding immediately prior to the Effective Time shall
remain issued and outstanding and have, as to the Surviving Corporation,
the
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identical powers, preferences, rights, qualifications, limitations and
restrictions as such Company Preferred Shares presently have.
(b) Option to Substitute Parent Common Shares. Parent, in its sole
discretion, may elect to satisfy up to $4.00 of the Merger Consideration with
shares of common stock, no par value, of Parent ("Parent Common Shares"), having
a value determined by reference to the Parent Share Price (as defined below)
equal to the portion of the Merger Consideration to be satisfied with such
shares (the "Stock Election Value"). Parent must make such election prior to the
opening for trading on the fifth trading day prior to the date of the Special
Meeting (as defined in Section 1.12) by issuing a press release to the Dow Jones
News Service indicating such election. Parent will substantially simultaneously
notify the Company of such election. "Parent Share Price" shall mean the
weighted average price (rounded to the nearest one hundred thousandth) of Parent
Common Shares on the Toronto Stock Exchange (the "TSE") and the New York Stock
Exchange (the "NYSE") for the five trading days immediately preceding the fifth
trading day prior to the date of the Special Meeting. For purposes of
determining the Parent Share Price, transactions occurring on the TSE shall be
translated into U.S. dollars based on the noon buying rate in New York City for
cable transfers payable in foreign currencies as certified for customs purposes
by the Federal Reserve Bank of New York on the date of such transaction. The
number of Parent Common Shares (rounded to the nearest one hundred thousandth)
having a value equal to the Stock Election Value is referred to as the "Stock
Merger Consideration," and the amount of cash equal to $6.50 less the Stock
Election Value is referred to as the "Cash Merger Consideration."
(c) Cancellation. Each Company Common Share held in the treasury of the
Company and each Company Common Share owned by Parent, Acquisition or any direct
or indirect wholly owned subsidiary of the Company or Parent immediately prior
to the Effective Time shall, by virtue of the Merger and without any action on
the part of the holder thereof, cease to be outstanding, be canceled and retired
without payment of any consideration therefor and cease to exist.
(d) Capital Stock of Acquisition. Each share of common stock, $.01 par
value, of Acquisition issued and outstanding immediately prior to the Effective
Time shall be converted into and exchanged for one validly issued, fully paid
and nonassessable share of common stock, $.01 par value, of the Surviving
Corporation.
SECTION 1.7 Exchange of Certificates.
(a) Paying Agent and Procedures. Prior to the Effective Time, a bank or
trust company shall be designated by Parent (the "Paying Agent") to act as agent
in connection with the Merger to receive the Merger Consideration to which
holders of Company Common Shares shall become entitled pursuant to Section 1.6.
Promptly after the Effective Time, the Surviving Corporation shall cause to be
mailed to each record holder, as of the Effective Time, of a certificate or
certificates (the "Certificates") that, prior to the Effective Time, represented
Company Common Shares, a customary form of letter of transmittal and
instructions for use in effecting the surrender of the Certificates for payment
of the Merger Consideration in exchange therefor. Upon the surrender of each
such Certificate which represented Company Common Shares, together with such
letter of transmittal, duly completed and validly executed in accordance with
the instructions thereto, the Paying Agent shall deliver to the holder of such
Certificate in exchange therefor (i) the Cash Merger Consideration multiplied by
the number of Company Common Shares formerly represented by such Certificate and
(ii) if applicable, and subject to Section 1.7(f), the Stock Merger
Consideration multiplied by the number of Company Common Shares formerly
represented by such Certificate, and such Certificate shall forthwith be
canceled. Until so surrendered and exchanged, each such Certificate (other than
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Certificates representing Company Common Shares canceled pursuant to Section
1.6(c)) shall represent solely the right to receive the Merger Consideration. No
interest shall be paid or accrue on the Merger Consideration. If the Merger
Consideration (or any portion thereof) is to be delivered to any person other
than the person in whose name the Certificate surrendered in exchange therefor
is registered, it shall be a condition to such exchange that the Certificate so
surrendered shall be properly endorsed or otherwise be in proper form for
transfer and that the person requesting such exchange shall pay to the Paying
Agent any transfer or other taxes required by reason of the payment of the
Merger Consideration to a person other than the registered holder of the
Certificate surrendered, or shall establish to the satisfaction of the Paying
Agent that such tax has been paid or is not applicable.
(b) Consideration. At the Effective Time, Parent or Acquisition shall
deposit, or cause to be deposited, in trust with the Paying Agent for the
benefit of the holders of Company Common Shares the Merger Consideration to
which holders of Company Common Shares shall be entitled at the Effective Time
pursuant to Section 1.6 hereof.
(c) Investment of Merger Consideration. The Cash Merger Consideration shall
be invested by the Paying Agent, as directed by Parent, provided such
investments shall be limited to direct obligations of the United States of
America, obligations for which the full faith and credit of the United States of
America is pledged to provide for the payment of principal and interest,
commercial paper rated of the highest quality by Moody's Investors Service, Inc.
or Standard & Poor's Corporation, or certificates of deposit issued by a
commercial bank having at least $25,000,000,000 in assets.
(d) Termination of Duties. Promptly following the date which is six months
after the Effective Time, Parent will cause the Paying Agent to deliver to the
Surviving Corporation all cash and documents in its possession relating to the
transactions described in this Agreement, and the Paying Agent's duties shall
terminate. Thereafter, each holder of a Certificate may surrender such
Certificate to Parent and (subject to applicable abandoned property, escheat and
similar laws) receive in exchange therefor the Merger Consideration, without any
interest thereon.
(e) No Liability. Neither Parent, Acquisition nor the Company shall be
liable to any holder of Company Common Shares for any Merger Consideration
delivered to a public official pursuant to any applicable abandoned property,
escheat or similar law.
(f) No Certificates For Small Lots or Fractional Shares.
(i) No certificates or scrip representing (A) less than 100 Parent
Common Shares or (B) fractional Parent Common Shares shall be issued upon
the surrender for exchange of Certificates that immediately prior to the
Effective Time represented Company Common Shares which have been converted
pursuant to Section 1.6, and such interests will not entitle the
surrendering Certificate holder to vote or to any rights of a shareholder
of Parent.
(ii) As promptly as practicable following the Effective Time, the
Paying Agent shall determine the aggregate number of Parent Common Shares
with respect to which certificates or scrip will not be issued pursuant to
Section 1.7(f)(i)(A) or (B) (after taking into account all Company Common
Shares held at the Effective Time by such holder) (collectively, the
"Excess Shares") and, on behalf of former holders of Certificates
representing Company Common Shares shall sell the Excess Shares at
then-prevailing prices on the NYSE, all in the manner provided in Section
1.7(f)(iii).
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(iii) The sale of the Excess Shares by the Paying Agent shall be
executed on the NYSE through one or more member firms of the NYSE and shall
be executed in round lots to the extent practicable. The Paying Agent shall
use reasonable efforts to complete the sale of the Excess Shares as
promptly following the Effective Time as, in the Paying Agent's sole
judgment, is practicable consistent with obtaining the best execution of
such sales in light of prevailing market conditions. Until the net proceeds
of such sale or sales have been distributed to the holders of Certificates
formerly representing Company Common Shares, the Paying Agent shall hold
such proceeds in trust for such holders (the "Excess Shares Trust"). Parent
shall pay all commissions, transfer taxes and other out-of-pocket
transaction costs, including the expenses and compensation of the Paying
Agent, incurred in connection with such sale of the Excess Shares.
(iv) The Paying Agent shall determine the portion of the Excess Shares
Trust to which each former holder of Company Common Shares is entitled, if
any, by multiplying the amount of the aggregate net proceeds comprising the
Excess Shares Trust by the quotient (rounded to the nearest one hundred
thousandth) of the number of Parent Common Shares such former holder of
Company Common Shares would have been entitled to receive pursuant to
Section 1.6 hereof but for the provisions of Section 1.7(f) hereof divided
by the aggregate number of Excess Shares. As soon as practicable after such
determination, the Paying Agent shall make available such amounts to such
holders of Certificates formerly representing Company Common Shares subject
to and in accordance with the terms of this Agreement.
(g) Withholding Rights. Parent or the Paying Agent shall be entitled to
deduct and withhold from the Merger Consideration otherwise payable pursuant to
this Agreement to any holder of Company Common Shares such amounts as Parent or
the Paying Agent is required to deduct and withhold with respect to the making
of such payment under the Internal Revenue Code of 1986, as amended (the
"Code"), or any provision of state, local or foreign tax law. Any such withheld
amounts shall be treated for all purposes of this Agreement as having been paid
to the holder of the Company Common Shares in respect of which such deduction
and withholding was made by Parent or the Paying Agent.
SECTION 1.8 Stock Transfer Books. At the Effective Time, the stock
transfer books of the Company shall be closed, and there shall be no further
registration of transfers of the Company Common Shares thereafter on the records
of the Company or the Surviving Corporation. If, after the Effective Time,
Certificates are presented to the Surviving Corporation for any reason, they
shall be canceled and exchanged as provided in this Article I.
SECTION 1.9 No Further Ownership Rights in Company Common Shares. The
Merger Consideration delivered upon the surrender for exchange of Certificates
in accordance with the terms hereof shall be deemed to have been issued and/or
paid, as the case may be, in full satisfaction of all rights pertaining to the
Company Common Shares formerly represented by such Certificates.
SECTION 1.10 Lost, Stolen or Destroyed Certificates. In the event any
Certificates shall have been lost, stolen or destroyed, the Paying Agent shall
deliver in exchange for such lost, stolen or destroyed Certificates, upon the
making of an affidavit of that fact by the holder thereof, the Merger
Consideration as may be required pursuant to Section 1.6; provided, however,
that Parent may, in its discretion and as a condition precedent to the issuance
of the Merger Consideration, require the owner of such lost, stolen or destroyed
Certificates to deliver a bond in such sum as it may reasonably direct as
indemnity against any claim that may be made against Parent or the Paying Agent
with respect to the Certificates alleged to have been lost, stolen or destroyed.
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SECTION 1.11 Taking of Necessary Action; Further Action. Subject to
Sections 1.12 and 5.2 and Article VII hereof, each of Parent, Acquisition and
the Company will take all such reasonable and lawful action as may be necessary
or appropriate in order to effectuate the Merger in accordance with this
Agreement as promptly as possible. If, at any time after the Effective Time, any
such further action is necessary or desirable to carry out the purposes of this
Agreement and to vest the Surviving Corporation with full right, title and
possession to all assets, property, rights, privileges, powers and franchises of
the Company and Acquisition, the officers and directors of the Company and
Acquisition immediately prior to the Effective Time are fully authorized in the
name of their respective corporations or otherwise to take, and will take, all
such lawful and necessary action.
SECTION 1.12 Stockholders' Meeting. The Company, acting through the Board,
shall in accordance with applicable law and subject to the fiduciary duties of
the Board (as determined by the Board after consultation with counsel), as soon
as practicable following the date of this Agreement:
(a) duly call, give notice of, convene and hold an annual or special
meeting of its stockholders on a date to be determined by the Board and
reasonably satisfactory to Parent, but in no event later than March 31,
1999 (the "Special Meeting") for the purpose of considering and taking
action upon this Agreement;
(b) include in the Proxy Statement/Prospectus (as defined in Section
4.1) the recommendation of the Board that stockholders of the Company vote
in favor of the adoption of this Agreement; and
(c) use its reasonable best efforts (i) to obtain and furnish the
information required to be included by it in the Proxy Statement/Prospectus
and, after consultation with Parent, respond promptly to any comments made
by the Securities and Exchange Commission (the "SEC") with respect to the
Proxy Statement/Prospectus and any preliminary version thereof and cause
the Proxy Statement/Prospectus to be mailed to its stockholders at the
earliest practicable time and (ii) to obtain the necessary approvals by its
stockholders of this Agreement.
At the Special Meeting, Parent and Acquisition will vote all Company Common
Shares owned by them in favor of the adoption of this Agreement.
SECTION 1.13 Material Adverse Effect. When used in connection with the
Company or any of its subsidiaries, or Parent or any of its subsidiaries, as the
case may be, the term "Material Adverse Effect" means any change, effect or
circumstance that is materially adverse to the business, financial condition or
results of operations of the Company and its subsidiaries, or Parent and its
subsidiaries, as the case may be, in each case taken as a whole, other than any
such changes, effects or circumstances: (i) set forth or contemplated by the
written disclosure schedule delivered on or prior to the date hereof by the
Company to Parent (the "Company Disclosure Schedule") or the written disclosure
schedule delivered on or prior to the date hereof, by Parent to the Company (the
"Parent Disclosure Schedule"), as the case may be; (ii) set forth or described
in the Company Filed SEC Reports (as defined in Section 2.8) or the Parent Filed
SEC Reports (as defined in Section 3.8), as the case may be; or (iii) affecting
the scheduled intercity bus transportation industry or the North American
economy generally.
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ARTICLE II
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
Except as disclosed in the Company Filed SEC Reports or as set forth in the
Company Disclosure Schedule, the Company hereby represents and warrants to
Parent and Acquisition that:
SECTION 2.1 Organization and Qualification; Subsidiaries. The Company and
each of its significant subsidiaries (as that term is defined in Rule 1-02 of
Regulation S-X) is a corporation or other legal entity duly organized, validly
existing and in good standing under the laws of the jurisdiction of its
organization and has the corporate or similar power and authority necessary to
own, lease and operate the properties it purports to own, operate or lease and
to carry on its business as it is now being conducted, except where the failure
to be so organized, existing and in good standing or to have such power and
authority would not have a Material Adverse Effect. The Company and each of its
significant subsidiaries is duly qualified or licensed to do business, and is in
good standing (with respect to jurisdictions that recognize such concept), in
each jurisdiction where the character of its properties owned, leased or
operated by it or the nature of its activities makes such qualification or
licensing necessary, except for such failures to be so duly qualified or
licensed and in good standing that would not in the aggregate have a Material
Adverse Effect. A true and complete list of all of the Company's subsidiaries,
together with the jurisdiction of organization of each subsidiary and the
percentage of each significant subsidiary's outstanding capital stock owned by
the Company or another subsidiary, is set forth in Section 2.1 of the Company
Disclosure Schedule. Except as set forth in Section 2.1 of the Company
Disclosure Schedule, the Company does not directly or indirectly own any equity
or similar interest in, or any interest convertible into or exchangeable or
exercisable for, any equity or similar interest in, any corporation,
partnership, joint venture or other business association or legal entity, with
respect to which interest the Company or any of its subsidiaries has invested or
is required to invest $1,000,000 or more, excluding securities held by trusteed
benefit plans and trusts.
SECTION 2.2 Certificate of Incorporation and By-Laws. The Company has
heretofore furnished to Parent a complete and correct copy of its Certificate of
Incorporation and By-Laws, and has furnished or made available to Parent the
Certificate of Incorporation and By-Laws (or equivalent organizational
documents) of each of its subsidiaries (the "Subsidiary Documents"), in each
case as amended to the date of this Agreement. Such Certificate of
Incorporation, By-Laws and Subsidiary Documents are in full force and effect.
Neither the Company nor any of its subsidiaries is in violation of any of the
provisions of such documents.
SECTION 2.3 Capitalization. The authorized capital stock of the Company
consists of (i) 100,000,000 Company Common Shares and (ii) 10,000,000 shares of
preferred stock, $.01 par value per share, including (A) 2,760,000 Company
Preferred Shares, and (B) 2,000,000 shares of Series A Junior Preferred Stock,
$.01 par value. As of September 30, 1998: (i) 60,137,650 Company Common Shares
were issued and outstanding, all of which are validly issued, fully paid and
nonassessable, and 109,192 Company Common Shares were held in treasury, (ii) no
Company Common Shares were held by subsidiaries of the Company, (iii) 6,769,021
Company Common Shares were reserved for future issuance pursuant to outstanding
stock options granted under the Company Stock Option Plans (as defined in
Section 4.9), 12,307,692 Company Common Shares were reserved for issuance upon
conversion of the Company Preferred Shares and 792,242 Company Common Shares
were reserved for issuance upon conversion of the Company's 8 1/2% Convertible
Subordinated Debentures due March 31, 2007, (iv) 2,400,000 Company Preferred
Shares were issued and outstanding, and (v) no shares of the Company's Series A
Junior Preferred Stock were issued
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and outstanding. No material change in such capitalization has occurred between
September 30, 1998 and the date hereof. Except as set forth in this Section 2.3
or Section 2.11 or in the related sections of the Company Disclosure Schedule,
there are no options, warrants or other similar rights, agreements, arrangements
or commitments of any character relating to the issued or unissued capital stock
of the Company or any of its subsidiaries or obligating the Company or any of
its subsidiaries to issue or sell any shares of capital stock of, or other
equity interests in, the Company or any of its subsidiaries. All of the Company
Common Shares subject to issuance as aforesaid, upon issuance on the terms and
conditions specified in the instruments pursuant to which they are issuable,
shall be duly authorized, validly issued, fully paid and nonassessable. Except
as disclosed in Section 2.3 of the Company Disclosure Schedule, there are no
obligations, contingent or otherwise, of the Company or any of its subsidiaries
to repurchase, redeem or otherwise acquire any Company Common Shares or Company
Preferred Shares or the capital stock of any subsidiary or to provide funds to
or make any investment (in the form of a loan, capital contribution or
otherwise) in any such subsidiary or any other entity other than guarantees of
leases and bank obligations of subsidiaries entered into in the ordinary course
of business. Except as set forth in Sections 2.1 and 2.3 of the Company
Disclosure Schedule, all of the outstanding shares of capital stock of each of
the Company's subsidiaries is duly authorized, validly issued, fully paid and
nonassessable, and all such shares are owned by the Company or another
subsidiary of the Company free and clear of all security interests, liens,
pledges, agreements, limitations in the Company's voting rights, charges or
other encumbrances of any nature whatsoever.
SECTION 2.4 Authority Relative to this Agreement. The Company has all
necessary corporate power and authority to execute and deliver this Agreement
and to perform its obligations hereunder and to consummate the transactions
contemplated hereby. The execution and delivery of this Agreement by the Company
and the consummation by the Company of the transactions contemplated hereby have
been duly and validly authorized by all necessary corporate action, and no other
corporate proceedings on the part of the Company are necessary to authorize this
Agreement or to consummate the transactions so contemplated (other than the
adoption of this Agreement by the holders of at least a majority of the
outstanding Company Common Shares and the outstanding Company Preferred Shares
(voting together as one class) entitled to vote in accordance with the Delaware
Law and the Company's Certificate of Incorporation and By-Laws). As of the date
of this Agreement, the Board of Directors of the Company has determined that the
Merger and the transactions contemplated thereby, upon the terms and subject to
the conditions of this Agreement, are fair to and in the best interests of the
Company and its stockholders. This Agreement has been duly and validly executed
and delivered by the Company and, assuming the due authorization, execution and
delivery by Parent and Acquisition, and adoption of the Agreement by the
requisite vote of the stockholders of the Company, constitutes a valid and
binding obligation of the Company enforceable against the Company in accordance
with its terms.
SECTION 2.5 No Conflict; Required Filings and Consents.
(a) Section 2.5(a) of the Company Disclosure Schedule includes a list of
all agreements to which the Company or any of its subsidiaries is a party or by
which any of them is bound which, as of the date of this Agreement: (i) are
required to be filed as "material contracts" with the SEC pursuant to the
requirements of the Exchange Act; (ii) under which the consequences of a
default, nonrenewal or termination would have a Material Adverse Effect on the
Company; or (iii) pursuant to which payments might be required or acceleration
of benefits may be required upon a "change of control" of the Company
(collectively, the "Material Contracts").
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(b) Except as set forth in Section 2.5(b) of the Company Disclosure
Schedule, the execution and delivery of this Agreement by the Company does not,
and the performance of this Agreement by the Company will not, (i) conflict with
or violate the Certificate of Incorporation or By-Laws of the Company, (ii)
conflict with or violate any law, rule, regulation, order, judgment or decree in
effect as of the date of this Agreement applicable to the Company or any of its
subsidiaries or by which its or any of their respective properties is bound or
affected, or (iii) result in any breach of or constitute a default (or an event
that with notice or lapse of time or both would become a default) under, or
impair the Company's or any of its subsidiaries' rights or alter the rights or
obligations of any third party under, or give to others any rights of
termination, amendment, acceleration or cancellation of, any Material Contract,
or result in the creation of a lien or encumbrance on any of the properties or
assets of the Company or any of its subsidiaries pursuant to any note, bond,
mortgage, indenture, contract, agreement, lease, license, permit, franchise or
other instrument or obligation to which the Company or any of its subsidiaries
is a party or by which the Company or any of its subsidiaries or its or any of
their respective properties is bound or affected, except in any such case for
any such conflicts, violations, breaches, defaults or other occurrences that
would not have a Material Adverse Effect.
(c) Except as set forth in Section 2.5(c) of the Company Disclosure
Schedule, the execution and delivery of this Agreement by the Company does not,
and the performance of this Agreement by the Company will not, require any
consent, approval, authorization or permit of, or filing with or notification
to, any governmental or regulatory authority, domestic or foreign, except (i)
for applicable requirements, if any, of the Securities Act, the Exchange Act,
state securities laws ("Blue Sky Laws"), the Hart-Scott-Rodino Antitrust
Improvements Act of 1976, as amended ("HSR Act"), and the filing and recordation
of appropriate merger or other documents as required by the Delaware Law, (ii)
the applicable requirements of the United States Department of Transportation
Surface Transportation Board ("STB"), and (iii) where the failure to obtain such
consents, approvals, authorizations or permits, or to make such filings or
notifications, would not prevent or delay consummation of the Merger, or
otherwise prevent or delay the Company from performing its obligations under
this Agreement, and would not otherwise in the aggregate have a Material Adverse
Effect.
SECTION 2.6 Compliance.
(a) Except as disclosed in Section 2.6(a) of the Company Disclosure
Schedule, neither the Company nor any of its subsidiaries is in conflict with,
or in default or violation of, (i) any law (including, without limitation,
environmental laws), rule, regulation, order, judgment or decree applicable to
the Company or any of its subsidiaries or by which its or any of their
respective properties is bound or affected or (ii) any Material Contract to
which the Company or any of its subsidiaries is a party or by which the Company
or any of its subsidiaries or its or any of their respective properties is bound
or affected, except for any such conflicts, defaults or violations which would
not in the aggregate have a Material Adverse Effect.
(b) Section 2.6(b) of the Company Disclosure Schedule sets forth a list of
all motor carrier operating authorities from governmental authorities that are
material to the operation of the business of the Company and its subsidiaries
taken as a whole as it is being conducted as of the date of this Agreement
(collectively, the "Company Permits"). The Company and its subsidiaries are in
compliance with the terms of the Company Permits, except where the failure to be
in such compliance would not, individually or in the aggregate, have a Material
Adverse Effect.
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SECTION 2.7 SEC Filings; Financial Statements.
(a) Except as set forth in Section 2.7 of the Company Disclosure Schedule,
the Company has filed all forms, reports and documents required to be filed with
the SEC and has made available to Parent (i) its Annual Reports on Form 10-K for
the fiscal years ended December 31, 1996 and 1997, (ii) its Quarterly Reports on
Form 10-Q for the periods ended March 31, 1998 and June 30, 1998, (iii) all
proxy statements relating to the Company's meetings of stockholders (whether
annual or special) held since January 1, 1998, (iv) all other reports or
registration statements filed by the Company with the SEC since January 1, 1998,
and (v) all amendments and supplements to all such reports and registration
statements filed by the Company with the SEC since January 1, 1998
(collectively, the "Company SEC Reports"). Except as disclosed in Section 2.7 of
the Company Disclosure Schedule, the Company SEC Reports (i) were prepared in
all material respects in accordance with the requirements of the Securities Act
or the Exchange Act, as the case may be, as in effect on the date such Company
SEC Reports were filed, and (ii) did not at the time they were filed (or if
amended or superseded by a filing prior to the date of this Agreement, then on
the date of such filing) contain any untrue statement of a material fact or omit
to state a material fact required to be stated therein or necessary in order to
make the statements therein, in the light of the circumstances under which they
were made, not misleading. Except as set forth in Section 2.7 of the Company
Disclosure Schedule, none of the Company's subsidiaries is required to file any
forms, reports or other documents with the SEC.
(b) Each of the consolidated financial statements (including, in each case,
any related notes thereto) contained in the Company SEC Reports was prepared in
accordance with generally accepted accounting principles applied on a consistent
basis throughout the periods involved (except as may be indicated in the notes
thereto), and each fairly presents in all material respects the consolidated
financial position of the Company and its subsidiaries as at the respective
dates thereof and the consolidated results of its operations and cash flows for
the periods indicated, except that the unaudited interim financial statements
were or are subject to normal and recurring year-end adjustments which were not
or are not expected to be material in amount.
SECTION 2.8 Absence of Certain Changes or Events. Except as set forth in
Section 2.8 of the Company Disclosure Schedule or the Company SEC Reports filed
and publicly available prior to the date of this Agreement (the "Company Filed
SEC Reports"), since January 1, 1998, the Company has conducted its business in
the ordinary course and there has not occurred: (i) any Material Adverse Effect;
(ii) any amendments or changes in the Certificate of Incorporation or By-laws of
the Company; (iii) any damage to, destruction or loss of any asset of the
Company (whether or not covered by insurance) that would have a Material Adverse
Effect; (iv) any material change by the Company in its accounting methods,
principles or practices; (v) any material revaluation by the Company of any of
its assets, including, without limitation, writing down the value of inventory
or writing off notes or accounts receivable other than in the ordinary course of
business; (vi) any other action or event that would have required the consent of
Parent pursuant to Section 5.1 had such action or event occurred after the date
of this Agreement; or (vii) any sale of a material amount of property of the
Company or any of its subsidiaries, except in the ordinary course of business.
SECTION 2.9 No Undisclosed Liabilities. Except as is disclosed in Section
2.9 of the Company Disclosure Schedule, neither the Company nor any of its
subsidiaries has any liabilities (absolute, accrued, contingent or otherwise,
including, without limitation, environmental liabilities arising under
environmental laws), except liabilities (i) in the aggregate adequately provided
for in the Company's unaudited balance sheet (including any related notes
thereto) as of June 30, 1998 (the "1998 Company Balance Sheet"), (ii) incurred
in the ordinary course of business and not required under
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generally accepted accounting principles to be reflected on the 1998 Company
Balance Sheet, (iii) incurred since June 30, 1998 in the ordinary course of
business consistent with past practice, (iv) incurred in connection with this
Agreement, (v) disclosed in the Company Filed SEC Reports or (vi) which would
not have a Material Adverse Effect.
SECTION 2.10 Absence of Litigation. Except as set forth in Section 2.10 of
the Company Disclosure Schedule, there are no claims, actions, suits,
proceedings or investigations pending or, to the knowledge of the Company,
overtly threatened against the Company or any of its subsidiaries, or any
properties or rights of the Company or any of its subsidiaries, before any
court, arbitrator or administrative, governmental or regulatory authority or
body, domestic or foreign, that would have a Material Adverse Effect.
SECTION 2.11 Employee Benefit Plans, Employment Agreements.
(a) Section 2.11 (a) of the Company Disclosure Schedule lists (i) all
employee pension plans (as defined in Section 3(2) of the Employee Retirement
Income Security Act of 1974, as amended ("ERISA")), all material employee
welfare plans (as defined in Section 3(1) of ERISA) and all other material
bonus, stock option, stock purchase, incentive, deferred compensation,
supplemental retirement and severance plans, programs or arrangements, and any
material employment, executive compensation, consulting or severance agreements,
written or otherwise, for the benefit of, or relating to, any employee of or
consultant to the Company or any subsidiary of the Company other than a
multiemployer plan as defined in Section 3(37) of ERISA ("Multiemployer Plan")
(collectively the "Company Employee Plans") and (ii) each Multiemployer Plan to
which the Company or any subsidiary of the Company has an obligation to
contribute. There have been made available to Parent copies of (A) each such
written Company Employee Plan (other than those referred to in Section 4(b)(4)
of ERISA), (B) the most recent annual report on Form 5500 series, with
accompanying schedules and attachments, filed with respect to each Company
Employee Plan required to make such a filing, and (C) the most recent actuarial
valuation for each Company Employee Plan subject to Title IV of ERISA. For
purposes of this Section 2.11(a), the term "material," used with respect to any
Company Employee Plan, shall mean that the Company or a subsidiary of the
Company has incurred or may incur obligations in an annual amount exceeding
$1,000,000 with respect to such Company Employee Plan.
(b) (i) Except as set forth in Section 2.11(b) of the Company Disclosure
Schedule, none of the Company Employee Plans promises or provides retiree
medical or other retiree welfare benefits to any person; (ii) to the knowledge
of the Company, there has been no "prohibited transaction," as such term is
defined in Section 406 of ERISA and Section 4975 of the Code, with respect to
any Company Employee Plan, which could result in any material liability of the
Company or any of its subsidiaries; (iii) all Company Employee Plans are in
compliance in all material respects with the requirements prescribed by any and
all statutes (including ERISA and the Code), orders, or governmental rules and
regulations currently in effect with respect thereto and the Company and each of
its subsidiaries have performed all material obligations required to be
performed by them under, are not in any material respect in default under or
violation of, and have no knowledge of any default or violation by any other
party to, any of the Company Employee Plans; (iv) each Company Employee Plan
intended to qualify under Section 401(a) of the Code and each trust established
under such a Company Employee Plan intended to be exempt from tax under Section
501(a) of the Code is the subject of a favorable determination letter from the
Internal Revenue Service ("IRS"), and nothing has occurred which may reasonably
be expected to impair such determination; (v) all contributions required to be
made to any Company Employee Plan pursuant to Section 412 of the Code, or the
terms of the Company Employee Plans or any collective bargaining agreement, have
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been made on or before their due dates; (vi) with respect to each Company
Employee Plan, no "reportable event" within the meaning of Section 4043 of ERISA
(excluding any such event for which the 30 day notice requirement has been
waived under the regulations to Section 4043 of ERISA) nor any event described
in Section 4062, 4063 or 4041 of ERISA has occurred; and (vii) neither the
Company nor any subsidiary of the Company has incurred, nor reasonably expects
to incur, any liability under Title IV of ERISA (other than liability for
premium payments to the Pension Benefit Guaranty Corporation ("PBGC") arising in
the ordinary course).
(c) Section 2.11(c) of the Company Disclosure Schedule sets forth a true
and complete list of each current or former employee, officer or director of the
Company or any of its subsidiaries who holds any Stock Option (as defined in
Section 4.9) as of the date of this Agreement, together with the number of
shares of Company Common Stock subject to such Stock Option, the option price of
such Stock Option (to the extent determined as of the date hereof), whether such
Stock Option is intended to qualify as an incentive stock option within the
meaning of Section 422(b) of the Code (an "ISO"), and the expiration date of
such Stock Option.
(d) Section 2.11(d) of the Company Disclosure Schedule sets forth a true
and complete list of (i) all written employment agreements with officers of the
Company or any of its subsidiaries; (ii) all agreements with consultants who are
individuals obligating the Company or any of its subsidiaries to make annual
cash payments in an amount exceeding $200,000; (iii) all severance agreements,
programs and policies of the Company or any of its subsidiaries with or relating
to its employees, in each case with outstanding commitments exceeding $300,000
to any individual, excluding programs and policies required to be maintained by
law; and (iv) all plans, programs, agreements and other arrangements of the
Company or any of its subsidiaries with or relating to its employees which
contain change in control provisions.
SECTION 2.12 Labor Matters. Except as set forth in Section 2.12 of the
Company Disclosure Schedule, (i) neither the Company nor any of its subsidiaries
is a party to any collective bargaining agreement or other labor union contract
applicable to persons employed by the Company or its subsidiaries, nor does the
Company or any of its subsidiaries know of any activities or proceedings of any
labor union to organize any such employees; and (ii) neither the Company nor any
of its subsidiaries has any knowledge of any strikes, slowdowns, work stoppages,
lockouts or threats thereof, by or with respect to any employees of the Company
or any of its subsidiaries which would in the aggregate have a Material Adverse
Effect.
SECTION 2.13 Restrictions on Business Activities. Except for this
Agreement or as set forth in Section 2.13 of the Company Disclosure Schedule,
there is no agreement, judgment, injunction, order or decree binding upon and
specifically applicable to the Company or any of its subsidiaries which has or
could reasonably be expected to have the effect of prohibiting or impairing any
material business practice of the Company or any of its subsidiaries, any
acquisition of property by the Company or any of its subsidiaries or the conduct
of business by the Company or any of its subsidiaries as currently conducted or
as proposed to be conducted by the Company, except for any prohibitions or
impairments as would not in the aggregate have a Material Adverse Effect.
SECTION 2.14 Taxes.
(a) For purposes of this Agreement, (i) "Tax" or "Taxes" shall mean taxes,
fees, levies, duties, tariffs, imposts, and governmental impositions or charges
of any kind in the nature of (or similar to) taxes, payable to any federal,
state, local or foreign taxing authority, including (without limitation) income,
franchise, profits, gross receipts, ad valorem, net worth, value added, sales,
use, service, real or personal property, special assessments, capital stock,
license, payroll, withholding, employment,
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social security, workers' compensation, unemployment compensation, utility,
severance, production, excise, stamp, occupation premiums, windfall profits,
transfer and gains taxes and interest, penalties, additional taxes and additions
to tax imposed with respect thereto and (ii) "Tax Returns" shall mean returns,
reports, estimates and information returns and statements with respect to Taxes
required to be filed with the IRS or any other taxing authority, domestic or
foreign, including, without limitation, consolidated, combined and unitary tax
returns.
(b) Other than as disclosed in Section 2.14(b) of the Company Disclosure
Schedule:
(i) The Company and each of its subsidiaries (for such periods as each
subsidiary was owned, directly or indirectly, by the Company), have filed
all federal income Tax Returns and all other material Tax Returns required
to be filed by it (taking into account all applicable extensions), and all
such Tax Returns are complete and correct in all material respects, or
requests for extensions to file such Tax Returns have been timely filed,
granted and have not expired, except to the extent that such failures to
file, to be complete or correct or to have extensions granted that remain
in effect, individually or in the aggregate, would not have a Material
Adverse Effect on the Company. The Company and each of its subsidiaries has
paid, or the Company has paid or caused to be paid on its subsidiaries'
behalf, all Taxes shown as due on such Tax Returns and all material Taxes
for which no Tax Return was required to be filed. The most recent financial
statements contained in the Company SEC Reports reflect an adequate reserve
in accordance with GAAP for all Taxes payable by the Company and its
subsidiaries for all taxable periods and portions thereof through the date
of such financial statements.
(ii) No material Tax Return of the Company or any of its subsidiaries
is under audit or examination by any taxing authority or the subject of any
pending court proceeding, and no written notice of such an audit or
examination has been received by the Company or any of its subsidiaries.
Each material deficiency resulting from any audit or examination relating
to Taxes by any taxing authority has been paid, except for deficiencies
being contested in good faith. No material issue relating to Taxes were
raised in writing by the relevant taxing authority during any presently
pending audit or examination. None of the federal income Tax Returns of the
Company or any of its subsidiaries consolidated in such Tax Returns for any
period have been examined by the IRS.
(iii) There is no agreement or other document extending, or having the
effect of extending, the period of assessment or collection of any material
Taxes and no power of attorney with respect to any material Taxes has been
executed or filed with any taxing authority.
(iv) No material liens for Taxes exist with respect to any assets or
properties of the Company or any of its subsidiaries, except for statutory
liens for Taxes not yet due.
(v) The accruals and reserves for Taxes (including deferred taxes)
reflected in the 1998 Company Balance Sheet are in all material respects
adequate (and until the Closing Date will continue to be adequate) to cover
all Taxes required to be accrued through the date thereof (including
interest and penalties, if any, thereon and Taxes being contested) in
accordance with generally accepted accounting principles.
(vi) The Company and its subsidiaries have complied in all material
respects with all applicable laws, rules and regulations relating to the
payment and withholding of Taxes and have timely withheld from employee
wages and paid over to the proper governmental authorities all amounts
required to be so withheld and paid over under all applicable laws.
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(vii) Neither the Company nor any of its subsidiaries has engaged in
any inter-company transactions within the meaning of Treasury Regulation
Section 1.1502-13 for which any income or gain will be recognized (as a
result of the Merger or otherwise) during any taxable period ending on or
before the Closing Date.
SECTION 2.15 Intellectual Property. Except as set forth in Section 2.15 of
the Company Disclosure Schedule, neither the Company nor any of its subsidiaries
owns any material patents, trademarks, trade names, service marks, copyrights,
and any applications therefor ("Intellectual Property"). Except as set forth in
Section 2.15 of the Company Disclosure Schedule, the Company and/or each of its
subsidiaries owns, or is licensed or otherwise possesses legally enforceable
rights to use all Intellectual Property used in the business of the Company and
its subsidiaries as currently conducted, except as would not have a Material
Adverse Effect.
SECTION 2.16 Rights Agreement. Concurrently with the execution and
delivery of this Agreement, the Company has taken all action necessary in order
to (i) render the Amended and Restated Rights Agreement dated as of April 18,
1997 between the Company and Mellon Securities Trust Company, as Rights Agent
(the "Rights Agreement") inapplicable to the Merger and the other transactions
contemplated by this Agreement and (ii) ensure that (a) neither Parent or
Acquisition is an Acquiring Person (as defined in the Rights Agreement) pursuant
to the Rights Agreement and (b) a Distribution Date (as defined in the Rights
Agreement) does not occur solely by reason of the execution of this Agreement,
the consummation of the Merger or the consummation of the other transactions
contemplated by this Agreement.
SECTION 2.17 Opinion of Financial Advisor. The Board has received the
opinion of the Company's financial advisor, Bear, Stearns & Co. Inc. ("Bear
Stearns"), to the effect that, as of the date of this Agreement, the Merger
Consideration to be received by the holders of Company Common Shares and Company
Preferred Shares (other than Parent and its affiliates) pursuant to the Merger
is fair, from a financial point of view, to such holders.
SECTION 2.18 Brokers. No broker, finder or investment banker (other than
Bear Stearns) is entitled to any brokerage, finder's or other fee or commission
in connection with the transactions contemplated by this Agreement based upon
arrangements made by or on behalf of the Company. The Company has heretofore
furnished to Parent a complete and correct copy of all agreements between the
Company and Bear Stearns pursuant to which such firm would be entitled to any
payment relating to the transactions contemplated hereunder.
SECTION 2.19 Section 203 of the Delaware Law Not Applicable. The Board has
taken all actions so that the provisions contained in Section 203 of the
Delaware Law applicable to a "business combination" (as defined in Section 203)
will not apply to the execution, delivery or performance of this Agreement or
the consummation of the Merger or the other transactions contemplated by this
Agreement.
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ARTICLE III
REPRESENTATIONS AND WARRANTIES OF PARENT AND ACQUISITION
Except as disclosed in the Parent Filed SEC Reports or as set forth in the
Parent Disclosure Schedule, Parent and Acquisition hereby, jointly and
severally, represent and warrant to the Company that:
SECTION 3.1 Organization and Qualification; Subsidiaries. Parent and each
of its significant subsidiaries (as that term is defined in Rule 1-02 of
Regulation S-X) is a corporation or other legal entity duly organized, validly
existing and in good standing under the laws of the jurisdiction of its
organization and has the corporate or similar power and authority necessary to
own, lease and operate the properties it purports to own, operate or lease and
to carry on its business as it is now being conducted, except where the failure
to be so organized, existing and in good standing or to have such power and
authority would not have a Material Adverse Effect. Parent and each of its
significant subsidiaries is duly qualified or licensed to do business, and is in
good standing (with respect to jurisdictions that recognize such concept), in
each jurisdiction where the character of its properties owned, leased or
operated by it or the nature of its activities makes such qualification or
licensing necessary, except for such failures to be so duly qualified or
licensed and in good standing that would not in the aggregate have a Material
Adverse Effect.
SECTION 3.2 Certificate and Articles of Amalgamation and By-Laws. Parent
has heretofore furnished to the Company a complete and correct copy of its
Certificate and Articles of Amalgamation and By-Laws, in each case as amended to
the date of this Agreement. Such Certificate and Articles of Amalgamation and
By-Laws are in full force and effect. Parent is not in violation of any of the
provisions of such documents.
SECTION 3.3 Capitalization. As of September 30, 1998, the authorized
capital stock of Parent consisted of (i) an unlimited number of Parent Common
Shares, of which 330,156,836 shares were issued and outstanding; (ii) an
unlimited number of Preference Shares, of which 558,070 shares of 5% Cumulative
Convertible First Preference Shares Series G (the "Parent Preferred Shares")
were issued and outstanding. As of September 30, 1998, 8,722,800 Parent Common
Shares were reserved for issuance upon the exercise of stock options, 575,999
Parent Common Shares were reserved for issuance upon the exercise of certain
warrants, and no Parent Common Shares were held by Parent in its treasury. No
material change in such capitalization has occurred between September 30, 1998
and the date hereof. All outstanding Parent Common Shares and Parent Preferred
Shares are validly issued, fully paid, non-assessable and free of preemptive
rights. Except as set forth above, there are no options, warrants or other
rights, agreements, arrangements or commitments of any character relating to the
issued or unissued capital stock of Parent or any of its subsidiaries or
obligating Parent or any of its subsidiaries to issue or sell any shares of
capital stock of, or other equity interests in, Parent or any of its
subsidiaries. Except for Parent's market support obligations to purchase up to
20,000 Parent Preferred Shares per year at a price of up to $20 per share, there
are no obligations, contingent or otherwise, of Parent to repurchase, redeem or
otherwise acquire any of the capital stock of Parent or the capital stock of any
subsidiary or to provide funds to or make any investment (in the form of a loan,
capital contribution or otherwise) in any such subsidiary other than guarantees
of bank obligations of subsidiaries entered into in the ordinary course of
business. All of the outstanding shares of capital stock of each of Parent's
subsidiaries are duly authorized, validly issued, fully paid and nonassessable,
and all such shares are owned by Parent or another subsidiary of Parent free and
clear of all security interests, liens, claims, pledges, agreements, limitations
on Parent's voting rights, charges or other encumbrances of any nature
whatsoever. The Parent Common Shares issuable in
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connection with the Merger are duly authorized and reserved and, when issued in
accordance with the terms of this Agreement, will be validly issued, fully paid,
nonassessable and free of preemptive rights.
SECTION 3.4 Authority Relative to this Agreement. Each of Parent and
Acquisition has all necessary corporate power and authority to execute and
deliver this Agreement and to perform its obligations hereunder and to
consummate the transactions contemplated hereby. The execution and delivery of
this Agreement by Parent and Acquisition and the consummation by Parent and
Acquisition of the transactions contemplated hereby have been duly and validly
authorized by all necessary corporate action on the part of Parent and
Acquisition, and no other corporate proceedings on the part of Parent or
Acquisition are necessary to authorize this Agreement or to consummate the
transactions contemplated hereby. As of the date of this Agreement, the Board of
Directors of Parent has determined that the Merger, upon the terms and subject
to the conditions of this Agreement, is advisable and in the best interest of
Parent's stockholders. This Agreement has been duly and validly executed and
delivered by Parent and Acquisition and adopted by Parent as the sole
stockholder of Acquisition and, assuming the due authorization, execution and
delivery by the Company and adoption of the Agreement by the requisite vote of
the stockholders of the Company, constitutes a valid and binding obligation of
Parent and Acquisition enforceable against each of them in accordance with its
terms.
SECTION 3.5 No Conflict, Required Filings and Consents.
(a) Except as set forth in Section 3.5(a) of Parent Disclosure Schedule,
the execution and delivery of this Agreement by Parent and Acquisition do not,
and the performance of this Agreement by Parent and Acquisition will not, (i)
conflict with or violate the Certificate and Articles of Amalgamation,
Certificate of Incorporation or By-Laws (or other constituent instruments) of
Parent or Acquisition, (ii) conflict with or violate any law, rule, regulation,
order, judgment or decree in effect as of the date of this Agreement applicable
to Parent or any of its subsidiaries or by which its or any of their respective
properties is bound or affected, or (iii) result in any breach of or constitute
a default (or an event that with notice or lapse of time or both would become a
default) under, or impair Parent's or any of its subsidiaries' rights or alter
the rights or obligations of any third party under, or give to others any rights
of termination, amendment, acceleration or cancellation of, any Material Parent
Contract (as defined in Section 3.6), or result in the creation of a lien or
encumbrance on any of the properties or assets of Parent or any of its
subsidiaries pursuant to, any note, bond, mortgage, indenture, contract,
agreement, lease, license, permit, franchise or other instrument or obligation
to which Parent or any of its subsidiaries is a party or by which Parent or any
of its subsidiaries or its or any of their respective properties are bound or
affected, except in any such case for any such conflicts, violations, breaches,
defaults or other occurrences that would not in the aggregate have a Material
Adverse Effect.
(b) Except as set forth in Section 3.5(b) of the Parent Disclosure
Schedule, the execution and delivery of this Agreement by Parent and Acquisition
does not, and the performance of this Agreement by Parent and Acquisition will
not, require any consent, approval, authorization or permit of, or filing with
or notification to, any governmental or regulatory authority, domestic or
foreign, except (i) for applicable requirements, if any, of the Securities Act,
the Exchange Act, the Blue Sky Laws, the HSR Act, and the filing and recordation
of appropriate merger or other documents as required by the Delaware Law, (ii)
the applicable requirements of the STB, and (iii) where the failure to obtain
such consents, approvals, authorizations or permits, or to make such filings or
notifications, would not prevent or delay consummation of the Merger, or
otherwise prevent or delay
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Parent or Acquisition from performing their respective obligations under this
Agreement, and would not otherwise in the aggregate have a Material Adverse
Effect.
SECTION 3.6 Compliance. Except as disclosed in Section 3.6 of the Parent
Disclosure Schedule, neither Parent nor any of its subsidiaries is in conflict
with, or in default or violation of, (i) any law (including, without limitation,
environmental laws), rule, regulation, order, judgment or decree applicable to
Parent or any of its subsidiaries or by which its or any of their respective
properties is bound or affected or (ii) any agreement (A) required to be filed
as "material contracts" with the SEC pursuant to the requirements of the
Exchange Act or (B) under which the consequences of a default, nonrenewal or
termination would have a Material Adverse Effect on the Parent (collectively,
the "Material Parent Contracts") to which Parent or any of its subsidiaries is a
party or by which Parent or any of its subsidiaries or its or any of their
respective properties is bound or affected, except for any such conflicts,
defaults or violations which would not in the aggregate have a Material Adverse
Effect.
SECTION 3.7 SEC Filings; Financial Statements.
(a) Except as set forth in Section 3.7 of the Parent Disclosure Schedule,
Parent has filed all forms, reports and documents required to be filed with the
SEC and has made available to the Company (i) its Annual Reports on Form 10-K
for the fiscal years ended August 31, 1996 and 1997, (ii) its Quarterly Reports
on Form 10-Q for the periods ended November 30, 1997, February 28, 1998 and May
31, 1998, (iii) all other reports or registration statements filed by Parent
with the SEC since September 1, 1997, and (iv) all amendments and supplements to
all such reports and registration statements filed by Parent with the SEC since
September 1, 1997 (collectively, the "Parent SEC Reports"). Except as disclosed
in Section 3.7 of the Parent Disclosure Schedule, the Parent SEC Reports (i)
were prepared in all material respects in accordance with the requirements of
the Securities Act or the Exchange Act, as the case may be, as in effect on the
date such Parent SEC Reports were filed (including the reconciliation of all
financial statements to United States generally accepted accounting principles),
and (ii) did not at the time they were filed (or if amended or superseded by a
filing prior to the date of this Agreement, then on the date of such filing)
contain any untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading. Except as set forth in Section 3.7 of the Parent Disclosure
Schedule, none of the Parent's subsidiaries is required to file any forms,
reports or other documents with the SEC.
(b) Each of the consolidated financial statements (including, in each case,
any related notes thereto) contained in the Parent SEC Reports was prepared in
accordance with Canadian generally accepted accounting principles applied on a
consistent basis throughout the periods involved (except as may be indicated in
the notes thereto), and each fairly presents in all material respects the
consolidated financial position of Parent and its subsidiaries as at the
respective dates thereof and the consolidated results of its operations and cash
flows for the periods indicated, except that the unaudited interim financial
statements were or are subject to normal and recurring year-end adjustments
which were not or are not expected to be material in amount.
SECTION 3.8 Absence of Certain Changes or Events. Except as set forth in
Section 3.8 of Parent Disclosure Schedule or the Parent SEC Reports filed and
publicly available prior to the date of this Agreement (the "Parent Filed SEC
Reports"), since September 1, 1997, Parent has conducted its business in the
ordinary course and there has not occurred: (i) any Material Adverse Effect;
(ii) any amendments or changes in the Certificate and Articles of Amalgamation
or By-Laws
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of Parent; (iii) any damage to, destruction or loss of any asset of the Parent
(whether or not covered by insurance) that would have a Material Adverse Effect;
(iv) any material change by Parent in its accounting methods, principles or
practices; (v) any material revaluation by Parent of any of its assets,
including, without limitation, writing down the value of the inventory or
writing off notes or accounts receivable other than in the ordinary course of
business; or (vi) any sale of a material amount of property of Parent or any of
its subsidiaries, except in the ordinary course of business.
SECTION 3.9 No Undisclosed Liabilities. Except as is disclosed in Section
3.9 of the Parent Disclosure Schedule, neither Parent nor any of its
subsidiaries has any liabilities (absolute, accrued, contingent or otherwise,
including, without limitation, environmental liabilities arising under
environmental laws), except liabilities (i) in the aggregate adequately provided
for in Parent's unaudited balance sheet (including any related notes thereto) as
of May 31, 1998 (the "1998 Parent Balance Sheet"), (ii) incurred in the ordinary
course of business and not required under Canadian generally accepted accounting
principles to be reflected on the 1998 Parent Balance Sheet, (iii) incurred
since May 31, 1998 in the ordinary course of business consistent with past
practice, (iv) incurred in connection with this Agreement, (v) disclosed in the
Parent Filed SEC Reports or (vi) which would not have a Material Adverse Effect.
SECTION 3.10 Absence of Litigation. Except as set forth in Section 3.10 of
the Parent Disclosure Schedule, there are no claims, actions, suits, proceedings
or investigations pending or, to the knowledge of Parent, overtly threatened
against Parent or any of its subsidiaries, or any properties or rights of Parent
or any of its subsidiaries, before any court, arbitrator or administrative,
governmental or regulatory authority or body, domestic or foreign, that would
have a Material Adverse Effect.
SECTION 3.11 Labor Matters. Except as set forth in Section 3.11 of the
Parent Disclosure Schedule, neither Parent nor any of its subsidiaries has any
knowledge of any strikes, slowdowns, work stoppages, lockouts or threats
thereof, by or with respect to any employees of Parent or any of its
subsidiaries which would in the aggregate have a Material Adverse Effect.
SECTION 3.12 Restrictions on Business Activities. Except for this
Agreement or as set forth in Section 3.12 of the Parent Disclosure Schedule,
there is no agreement, judgment, injunction, order or decree binding upon and
specifically applicable to Parent or any of its subsidiaries which has or could
reasonably be expected to have the effect of prohibiting or impairing any
material business practice of Parent or any of its subsidiaries, any acquisition
of property by Parent or any of its subsidiaries or the conduct of business by
Parent or any of its subsidiaries as currently conducted or as proposed to be
conducted by Parent, except for any prohibitions or impairments as would not in
the aggregate have a Material Adverse Effect.
SECTION 3.13 No Prior Activities; Financing.
(a) Acquisition was formed solely for the purpose of engaging in the
transactions contemplated by this Agreement. As of the date hereof and the
Effective Time, except for obligations or liabilities incurred in connection
with its incorporation or organization and the transactions contemplated by this
Agreement and except for this Agreement and any other agreements or arrangements
contemplated by this Agreement, Acquisition has not and will not have incurred,
directly or indirectly, through any subsidiary or affiliate, any obligations or
liabilities or engaged in any business activities of any type or kind whatsoever
or entered into any agreements or arrangements with any person.
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(b) Acquisition has (and Parent will cause Acquisition to have) available
to it funds necessary to satisfy its obligations hereunder including, without
limitation, the obligation to pay the Cash Merger Consideration pursuant to the
Merger and to pay all related fees and expenses in connection with the Merger.
SECTION 3.14 Taxes. Other than as disclosed in Section 3.14 of the Parent
Disclosure Schedule:
(a) Parent and each of its subsidiaries (for such periods as each
subsidiary was owned, directly or indirectly, by Parent), have filed all federal
income Tax Returns and all other material Tax Returns required to be filed by
it, (taking into account all applicable extensions) and all such Tax Returns are
complete and correct in all material respects, or requests for extensions to
file such Tax Returns have been timely filed, granted and have not expired,
except to the extent that such failures to file, to be complete or correct or to
have extensions granted that remain in effect, individually or in the aggregate,
would not have a Material Adverse Effect on Parent. Parent and each of its
subsidiaries has paid, or the Parent has paid or caused to be paid on its
subsidiaries' behalf, all Taxes shown as due on such Tax Returns and all
material Taxes for which no Tax Return was required to be filed. The most recent
financial statements contained in the Parent Filed SEC Reports reflect an
adequate reserve in accordance with Canadian generally accepted accounting
principles for all Taxes payable by Parent and its subsidiaries for all taxable
periods and portions thereof through the date of such financial statements.
(b) No material Tax Return of Parent or any of its subsidiaries is under
audit or examination by any taxing authority or the subject of any pending court
proceeding, and no written notice of such an audit or examination has been
received by Parent or any of its subsidiaries. Each material deficiency
resulting from any audit or examination relating to Taxes by any taxing
authority has been paid, except for deficiencies being contested in good faith.
No material issue relating to Taxes were raised in writing by the relevant
taxing authority during any presently pending audit or examination. None of the
federal income Tax Returns of Parent or any of its subsidiaries consolidated in
such Tax Returns for any period have been examined by the IRS.
(c) There is no agreement or other document extending, or having the effect
of extending, the period of assessment or collection of any Taxes and no power
of attorney with respect to any Taxes has been executed or filed with any taxing
authority.
(d) No material liens for Taxes exist with respect to any assets or
properties of Parent or any of its subsidiaries, except for statutory liens for
Taxes not yet due.
(e) The accruals and reserves for Taxes (including deferred taxes)
reflected in the 1998 Parent Balance Sheet are in all material respects adequate
(and until the Closing Date will continue to be adequate) to cover all Taxes
required to be accrued through the date thereof (including interest and
penalties, if any, thereon and Taxes being contested) in accordance with
Canadian generally accepted accounting principles.
(f) Parent and its subsidiaries have complied in all material respects with
all applicable laws, rules and regulations relating to the payment and
withholding of Taxes and have timely withheld from employee wages and paid over
to the proper governmental authorities all amounts required to be so withheld
and paid over under all applicable laws.
(g) Neither Parent nor any of its subsidiaries has engaged in any
inter-company transactions within the meaning of Treasury Regulation Section
1.1502-13 for which any income or gain will be
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recognized (as a result of the Merger or otherwise) during any taxable period
ending on or before the Closing Date.
SECTION 3.15 Intellectual Property. Except as set forth in Section 3.15 of
the Parent Disclosure Schedule, neither Parent nor any of its Subsidiaries owns
any material Intellectual Property. Except as set forth in Section 3.15 of the
Parent Disclosure Schedule, Parent and/or each of its subsidiaries owns, or is
licensed or otherwise possesses legally enforceable rights to use all
Intellectual Property used in the business of Parent and its subsidiaries as
currently conducted, except as would not have a Material Adverse Effect.
SECTION 3.16 Brokers. No broker, finder or investment banker (other than
Merrill Lynch, Pierce, Fenner & Smith Incorporated) is entitled to any
brokerage, finder's or other fee or commission in connection with the
transactions contemplated by this Agreement based upon arrangements made by or
on behalf of Parent.
ARTICLE IV
ADDITIONAL AGREEMENTS
SECTION 4.1 Preparation of Form S-4; Proxy Statement/Prospectus. As soon
as practicable following the date of this Agreement, the Company and Parent
shall jointly prepare and the Company shall file with the SEC a preliminary
proxy statement relating to the Special Meeting, and Parent shall prepare and
file with the SEC a registration statement on Form S-4 (the "Form S-4"), in
which such preliminary proxy statement will be included as a preliminary
prospectus (such proxy statement, together with the prospectus relating to
Parent Common Shares, in each case as amended or supplemented from time to time,
is referred to herein as the "Proxy Statement/Prospectus"). Parent shall use its
reasonable best efforts to have the Form S-4 declared effective under the
Securities Act as promptly as practicable after such filing. The Company will
use its reasonable best efforts to cause the Proxy Statement/Prospectus to be
mailed to the Company's stockholders as promptly as practicable after the Form
S-4 is declared effective under the Securities Act. Parent shall also take any
action (other than qualifying to do business in any jurisdiction in which it is
not now so qualified) required to be taken under any applicable state securities
laws in connection with the issuance of Parent Common Shares in the Merger, if
applicable, and the Company shall furnish all information concerning the Company
and the holders of the Company Common Shares and Company Preferred Shares as may
be reasonably requested in connection with any such action.
SECTION 4.2 Company Information. The Company agrees that none of the
information supplied or to be supplied by the Company specifically for inclusion
or incorporation by reference in (i) the Form S-4 will, at the time the Form S-4
is filed with the SEC, at any time it is amended or supplemented or at the time
it becomes effective under the Securities Act, contain any untrue statement of a
material fact or omit to state any material fact required to be stated therein
or necessary to make the statements therein not misleading and (ii) the Proxy
Statement/Prospectus will, at the date it is first mailed to the Company's
stockholders or at the time of the Special Meeting, contain any untrue statement
of a material fact or omit to state any material fact required to be stated
therein or necessary in order to make the statements therein, in the light of
the circumstances under which they are made, not misleading. The Proxy
Statement/Prospectus will comply as to form in all material respects with the
requirements of the Exchange Act and the rules and regulations thereunder,
except with respect to statements made or incorporated by reference therein
based on information supplied by Parent specifically for inclusion or
incorporation by reference in the Proxy Statement/Prospectus.
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SECTION 4.3 Parent Information. Parent agrees that none of the information
supplied or to be supplied by Parent specifically for inclusion or incorporation
by reference in (i) the Form S-4 will, at the time the Form S-4 is filed with
the SEC, at any time it is amended or supplemented or at the time it becomes
effective under the Securities Act, contain any untrue statement of a material
fact or omit to state any material fact required to be stated therein or
necessary to make the statements therein not misleading, and (ii) the Proxy
Statement/Prospectus will, at the date the Proxy Statement/Prospectus is first
mailed to the Company's stockholders or at the time of the Special Meeting,
contain any untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary in order to make the statements
therein, in the light of the circumstances under which they are made, not
misleading. The Form S-4 will comply as to form in all material respects with
the requirements of the Securities Act and the rules and regulations promulgated
thereunder, and the Proxy Statement/Prospectus will comply as to form in all
material respects with the requirements of the Exchange Act and the rules and
regulations promulgated thereunder, except with respect to statements made or
incorporated by reference in either the Form S-4 or the Proxy
Statement/Prospectus based on information supplied by the Company specifically
for inclusion or incorporation by reference therein.
SECTION 4.4 Meeting of the Company's Stockholders. The Company will take
all action necessary in accordance with applicable law and its Certificate of
Incorporation and By-laws to convene the Special Meeting to consider and vote
upon the adoption of this Agreement. Subject to Section 1.12, the Company will,
through the Board, recommend to its stockholders adoption of this Agreement.
Without limiting the generality of the foregoing, the Company agrees that,
subject to its right to terminate this Agreement pursuant to Section 7.1, its
obligations pursuant to the first sentence of Section 4.4 shall not be affected
by (i) the commencement, public proposal, public disclosure or communication to
the Company of any Acquisition Proposal (as defined in Section 5.2(a)) or (ii)
the withdrawal or modification by the Board of its approval or recommendation of
this Agreement or the Merger. Subject to Section 1.12 hereof, the Company will
use its reasonable best efforts to obtain the favorable vote of its stockholders
as soon as practicable after the date hereof.
SECTION 4.5 Reasonable Best Efforts. Upon the terms and subject to the
conditions and other agreements set forth in this Agreement, each of the parties
agrees to use its reasonable best efforts to take, or cause to be taken, all
actions, and to do, or cause to be done, and to assist and cooperate with the
other parties in doing, all things necessary, appropriate or advisable to
consummate and make effective, in the most expeditious manner practicable, the
Merger and the other transactions contemplated by this Agreement.
Notwithstanding any other provision hereof, the Company's obligations under this
Section 4.5 and any other provision hereof will in all events be subject to its
right to terminate this Agreement in accordance with Section 7.1, whereupon the
Company will have no further obligations hereunder or otherwise, including,
without limitation, under Sections 1.11, 4.1, 4.4, 4.10, 4.11, 4.14, 4.15 and
this Section 4.5.
SECTION 4.6 Letter of the Company's Accountants. The Company shall use its
reasonable best efforts to cause to be delivered to Parent a letter of Arthur
Andersen LLP, the Company's independent public accountants, dated a date within
two business days before the date on which the Form S-4 shall become effective
and a letter of Arthur Andersen LLP dated a date within two business days before
the date of the Special Meeting, addressed to Parent, in form and substance
reasonably satisfactory to Parent and customary in scope and substance for
letters delivered by independent public accountants in connection with
registration statements similar to the Form S-4.
SECTION 4.7 Letter of Parent's Accountants. Parent shall use its
reasonable best efforts to cause to be delivered to the Company a letter of
PricewaterhouseCoopers LLP, Parent's independent
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public accountants, dated a date within two business days before the date on
which the Form S-4 shall become effective and a letter of PricewaterhouseCoopers
LLP dated a date within two business days before the date of the Special
Meeting, addressed to the Company, in form and substance reasonably satisfactory
to the Company and customary in scope and substance for letters delivered by
independent public accountants in connection with registration statements
similar to the Form S-4.
SECTION 4.8 Stock Exchange Listings. Parent shall use its best efforts to
cause the Parent Common Shares to be issued in the Merger to be approved for
listing on the NYSE, subject to official notice of issuance, prior to the
Closing Date.
SECTION 4.9 Stock Options. On or prior to the Effective Time, the Company
will use its reasonable best efforts to cause holders of options to purchase
Company Common Shares (a "Stock Option") outstanding under the Company's 1995
Long Term Stock Incentive Plan, the Company's 1998 Non-Officer Long Term Stock
Incentive Plan, the Company's 1991 Management Stock Option Plan, the Company's
1998 Directors' Stock Incentive Plan, the Company's 1993 Management Incentive
Stock Option Plan, the Company's 1993 Non-Employee Director Stock Option Plan,
the Company's 1995 Director Stock Incentive Plan, the Charles A. Lynch Stock
Option Plan, the Robert B. Gill Stock Option Plan and the Thomas F. Meagher
Stock Option Plan (the "Company Stock Option Plans") or pursuant to any other
stock option plan or agreement entered into by the Company with any employee of
or consultant to the Company or any subsidiary thereof listed on Section 2.11(c)
of the Company Disclosure Schedule, whether or not then exercisable, to enter
into an agreement to cancel such Stock Options in exchange for an amount in cash
equal to the product of (i) the number of Company Common Shares previously
subject to such Stock Option multiplied by (ii) the excess, if any, of $6.50
over the exercise price per share of Company Common Shares previously subject to
such Stock Option less applicable withholding taxes. Notwithstanding anything
contained in this Agreement to the contrary, (i) the options to purchase Company
Common Shares granted under the Company's 1998 Stock Option Plan for ATU
Represented Drivers and Mechanics (the "ATU Option Plan") will be treated in the
Merger in the manner provided in the ATU Option Plan and (ii) the Company shall
not be obligated to use its reasonable best efforts to seek to cause a holder of
a Stock Option having an exercise price of more than $6.50 to enter into an
agreement as contemplated by this Section 4.9.
SECTION 4.10 Access to Information; Confidentiality.
(a) So long as this Agreement remains in effect, upon reasonable notice and
subject to restrictions contained in any applicable confidentiality agreements
to which such party is subject, the Company shall (and shall cause each of its
subsidiaries to) afford to the officers, employees, accountants, counsel and
other representatives of Parent or Acquisition reasonable access, during normal
business hours, to all its properties, books, contracts, commitments and records
and, the Company shall (and shall cause each of its subsidiaries to) furnish as
promptly as practicable to Parent or Acquisition all information concerning its
business, properties and personnel as such other party may reasonably request,
and each shall make available to the other the appropriate individuals
(including attorneys, accountants and other professionals) for discussion of the
other's business, properties and personnel as either Parent or the Company may
reasonably request. Parent and Acquisition shall keep such information
confidential in accordance with the terms of the confidentiality letter dated
June 30, 1998 (the "Confidentiality Letter"), between Parent and the Company.
(b) So long as this Agreement remains in effect, upon reasonable notice and
subject to restrictions contained in any applicable confidentiality agreements
to which such party is subject,
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Parent shall (and shall cause each of its subsidiaries to) afford to the
officers, employees, accountants, counsel and other representatives of the
Company reasonable access, during normal business hours, to all its properties,
books, contracts, commitments and records and, Parent shall (and shall cause
each of its subsidiaries to) furnish as promptly as practicable to the Company
all information concerning its business, properties and personnel as such other
party may reasonably request, and each shall make available to the other the
appropriate individuals (including attorneys, accountants and other
professionals) for discussion of the other's business, properties and personnel
as either Parent or the Company may reasonably request. The Company shall keep
such information confidential in accordance with the terms of the
Confidentiality Letter.
SECTION 4.11 Consents; Approvals. The Company and Parent shall each use
their reasonable best efforts to obtain all consents, waivers, approvals,
authorizations or orders (including, without limitation, the STB approval and
all other United States and foreign governmental and regulatory rulings and
approvals), and the Company and Parent shall make all filings (including,
without limitation, all filings with the STB and other United States and foreign
governmental or regulatory agencies) required in connection with the
authorization, execution and delivery of this Agreement by the Company and
Parent and the consummation by them of the transactions contemplated hereby. If
applicable, as promptly as practicable after the date of this Agreement, the
Company and Parent shall file notifications under the HSR Act in connection with
the Merger and the transactions contemplated hereby and shall respond as
promptly as practicable to any inquiries received from the STB, the Federal
Trade Commission (the "FTC") and the Antitrust Division of the Department of
Justice (the "Antitrust Division") for additional information or documentation
and shall respond as promptly as practicable to all inquiries and requests
received from any State Attorney General or other governmental authority in
connection with antitrust matters. The Company and Parent shall furnish all
information required to be included in any application or other filing to be
made pursuant to the rules and regulations of any United States or foreign
governmental body in connection with the transactions contemplated by this
Agreement.
SECTION 4.12 Indemnification and Insurance.
(a) The Certificate of Incorporation and By-Laws of the Surviving
Corporation shall contain the provisions with respect to indemnification,
exculpation and advancement of expenses set forth in the Certificate of
Incorporation and By-Laws of the Company, which provisions shall not be amended,
repealed or otherwise modified for a period of three years from the Effective
Time in any manner that would adversely affect the rights thereunder of
individuals who at the Effective Time were present or former directors,
officers, employees or agents of the Company, unless such modification is
required by law.
(b) The Company shall, to the fullest extent permitted under applicable law
or under the Company's Certificate of Incorporation or By-Laws and regardless of
whether the Merger becomes effective, indemnify and hold harmless, and, after
the Effective Time, the Parent and the Surviving Corporation shall, jointly and
severally, to the fullest extent permitted under applicable law or under the
Surviving Corporation's Certificate of Incorporation or By-Laws, indemnify and
hold harmless, each present and former director, officer or employee of the
Company or any of its subsidiaries (collectively, the "Indemnified Parties")
against any costs or expenses (including attorneys' fees), judgments, fines,
losses, claims, damages and liabilities incurred in connection with, and amounts
paid in settlement of, any claim, action, suit, proceeding or investigation,
whether civil, criminal, administrative or investigative and wherever asserted,
brought or filed, (x) arising out of or pertaining to the transactions
contemplated by this Agreement or (y) otherwise with respect to any acts or
omissions or alleged acts or omissions occurring at or prior to the Effective
Time, to the same extent
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as provided in the respective Certificate of Incorporation or By-Laws of the
Company or the subsidiaries or any applicable contract or agreement as in effect
on the date of this Agreement, in each case for a period of five years after the
date hereof. In the event of any such claim, action, suit, proceeding or
investigation (whether arising before or after the Effective Time), (i) any
counsel retained by the Indemnified Parties for any period after the Effective
Time shall be reasonably satisfactory to the Surviving Corporation, (ii) after
the Effective Time, the Surviving Corporation shall (and Parent shall cause the
Surviving Corporation to) pay the reasonable fees and expenses of such counsel,
promptly after statements therefor are received, and (iii) the Surviving
Corporation will cooperate in the defense of any such matter; provided, however,
that the Surviving Corporation shall not be liable for any settlement effected
without its written consent (which consent shall not be unreasonably withheld or
delayed); and provided, further, that, in the event that any claim or claims for
indemnification are asserted or made within such five-year period, all rights to
indemnification in respect of any such claim or claims shall continue until the
disposition of any and all such claims. The Indemnified Parties as a group may
retain only one law firm to represent them with respect to any single action
unless there is, under applicable standards of professional conduct, a conflict
on any significant issue between the positions of any two or more Indemnified
Parties. The indemnity agreements of Parent and the Surviving Corporation in
this Section 4.12(b) shall extend on the same terms to, and shall inure to the
benefit of and shall be enforceable by, each person or entity who controls, or
in the past controlled, any present or former director, officer or employee of
the Company or any of its subsidiaries.
(c) The Surviving Corporation shall (and Parent shall cause the Surviving
Corporation to) honor and fulfill in all respects the obligations of the Company
pursuant to indemnification agreements with the Company's directors and officers
existing at or before the Effective Time.
(d) For a period of five years after the Effective Time, Parent shall cause
the Surviving Corporation to maintain in effect, directors' and officers'
liability insurance covering those persons who are currently covered by the
Company's directors' and officers' liability insurance policy (a copy of which
has been made available to Parent) on terms (including the amounts of coverage
and the amounts of deductibles, if any) that are comparable to the terms now
applicable to directors and officers of Parent, or, if more favorable to the
Company's directors and officers, the terms now applicable to them under the
Company's current policies; provided, however, that in no event shall Parent or
the Surviving Corporation be required to expend in excess of 300% of the annual
premium currently paid by the Company for such coverage; and provided further,
that if the premium for such coverage exceeds such amount, Parent or the
Surviving Corporation shall purchase a policy if available with the greatest
coverage available for such 300% of the annual premium.
(e) From and after the Effective Time, Parent shall guarantee the
obligations of the Surviving Corporation under this Section 4.12.
(f) This Section 4.12 shall survive the consummation of the Merger at the
Effective Time, is intended to benefit the Company, the Surviving Corporation
and the Indemnified Parties, shall be binding on all successors and assigns of
the Surviving Corporation and shall be enforceable by the Indemnified Parties.
In the event that Parent or the Surviving Corporation or any of their successors
or assigns (i) consolidates or merges into any other person or entity and shall
not be the continuing or surviving corporation or entity in such consolidation
or merger or (ii) transfers all or substantially all of its properties and
assets to any person or entity, then and in such case, proper provisions shall
be made so that the successors and assigns of Parent or the Surviving
Corporation (as the case may be) assume the obligations of Parent and the
Surviving Corporation set forth in this Section 4.12.
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SECTION 4.13 Continuation of Company Employee Plans.
(a) Except as may be otherwise required or permitted under any collective
bargaining agreement to which the Company is a party, the Surviving Corporation
will (and Parent shall cause the Surviving Corporation to), for a period of not
less than 12 months following the Effective Time, continue without amendment or
change, except changes which increase compensation or benefits paid or payable
thereunder or as may be required by law, the Company Employee Plans and other
policies, practices, programs and arrangements which provide compensation or
benefits to employees of the Company or its subsidiaries. Notwithstanding the
foregoing, (i) the Surviving Corporation may replace any of such individual
plans, policies, practices, programs or arrangements with another plan, policy,
practice, program or arrangement providing, in the aggregate, not less than a
substantially equivalent level of compensation or benefits, as the case may be,
and (ii) the Surviving Corporation shall not be required to maintain any Company
Employee Plan that provides for the issuance of Company Common Shares or any
other stock-based award plan or program ("Stock Plans"); provided that Parent
replaces such Stock Plans with another plan, policy, practice, program or
arrangement that the Board of Directors of the Surviving Corporation determines
in good faith provides comparable incentive compensation opportunities.
(b) Except as may be expressly provided in a valid written waiver
voluntarily signed by an affected employee, the Company will honor and, on and
after the Effective Time, Parent will cause the Surviving Corporation to honor
in accordance with the terms thereof, without offset, deduction, counterclaim,
interruption or deferment (other than withholdings under applicable law) all
Company Benefit Plans, including all employment, change-in-control, severance,
termination, consulting and unfunded retirement or benefit agreements to which
the Company or any of its subsidiaries is a party. For the purpose of any such
policy, practice, program or arrangement that contains a provision relating to a
change in control of the Company, Parent acknowledges that the consummation of
the Merger constitutes such a change in control.
(c) The Company and Parent will or may, as the case may be, take the
actions indicated in Section 4.13(c) of the Company Disclosure Schedule at or
prior to the times specified therein.
SECTION 4.14 Notification of Certain Matters. The Company shall give
prompt notice to Parent, and Parent shall give prompt notice to the Company, of
(i) the occurrence or nonoccurrence of any event the occurrence or nonoccurrence
of which would reasonably be expected to cause any representation or warranty
contained in this Agreement to be materially untrue or inaccurate, or (ii) any
failure of the Company, Parent or Acquisition, as the case may be, materially to
comply with or satisfy any covenant, condition or agreement to be complied with
or satisfied by it hereunder; provided, however, that the delivery of any notice
pursuant to this Section 4.14 shall not limit or otherwise affect the remedies
available hereunder to the party receiving such notice.
SECTION 4.15 Further Action. Upon the terms and subject to the provisions
hereof, each of the parties hereto shall use all reasonable efforts to take, or
cause to be taken, all actions, and to do, or cause to be done, all other things
necessary, appropriate or advisable to consummate and make effective as promptly
as practicable the Merger and the other transactions contemplated by this
Agreement, including (i) obtaining in a timely manner all necessary waivers,
consents and approvals from all federal, state, and foreign courts and other
governmental entities ("Governmental Entities") and to effect all necessary
registrations and filings, and the taking of all reasonable steps as may be
necessary, appropriate or advisable to obtain an approval or waiver from, or to
avoid an action or proceeding by, any Governmental Entity, (ii) the obtaining of
all necessary consents, approvals or waivers from third parties, (iii) the
defending of any lawsuits or other legal proceedings, whether
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judicial or administrative, challenging this Agreement or the consummation of
the transactions contemplated by this Agreement, including seeking to have any
stay or temporary restraining order entered by any Governmental Entity vacated
or reversed, and (iv) the execution and delivery of any additional instruments
necessary to consummate the transactions contemplated by, and to fully carry out
the purposes of, this Agreement, and otherwise to satisfy or cause to be
satisfied all conditions precedent to its obligations under this Agreement,
including, on the part of Parent and Acquisition, entering into a voting trust
or similar agreement on customary terms to permit the consummation of the Merger
prior to the receipt of final approval from the STB of the transactions
contemplated by this Agreement. The foregoing covenant shall not include any
obligations by Parent or the Company to agree to divest, abandon, license or
take similar action with respect to any assets of Parent or the Company except
such actions that would be immaterial to Parent and its subsidiaries or the
Company and its subsidiaries, in each case taken as a whole.
SECTION 4.16 Public Announcements. Parent and the Company shall consult
with each other before issuing any press release with respect to the Merger or
this Agreement and shall not issue any such press release or make any similar
public statement without the prior consent of the other party, which shall not
be unreasonably withheld; provided, however, that a party may, without the prior
consent of the other party, issue such press release or make such public
statement as may upon the advice of counsel be required by law or the rules and
regulations of the NYSE or the American Stock Exchange, if it has used all
reasonable efforts to consult with the other party.
SECTION 4.17 Conveyance Taxes. Parent and the Company shall cooperate in
the preparation, execution and filing of all returns, questionnaires,
applications, or other documents regarding any real property transfer or gains,
sales, use, transfer, value added, stock transfer and stamp taxes, any transfer,
recording, registration and other fees, and any similar taxes which become
payable in connection with the transactions contemplated hereby that are
required or permitted to be filed on or before the Effective Time.
SECTION 4.18 Company Preferred Shares. Promptly after Effective Time,
Parent shall take such action as may be necessary to register under the
Securities Act the issuance, if any, of the Parent Common Shares issuable upon
conversion of the Company Preferred Shares after the Effective Time.
ARTICLE V
CONDUCT OF BUSINESS PENDING THE MERGER
SECTION 5.1 Conduct of Business by the Company Pending the Merger. The
Company covenants and agrees that, during the period from the date of this
Agreement and continuing until the earlier of the termination of this Agreement
or the Effective Time, unless Parent shall otherwise agree in writing, which
agreement shall not be unreasonably withheld or delayed, the Company shall
conduct its business and shall cause the businesses of its subsidiaries to be
conducted only in, and the Company and its subsidiaries shall not take any
action except in, the ordinary course of business and in the manner
substantially consistent with past practice; and the Company shall use
reasonable commercial efforts to preserve substantially intact the business
organization of the Company and its subsidiaries, to keep available the services
of the present officers of the Company and to preserve the present material
relationships of the Company and its subsidiaries with customers, suppliers and
other persons with which the Company or any of its subsidiaries has significant
business relations. Except as set forth in Section 5.1 of the Company Disclosure
Schedule or as otherwise contemplated by this Agreement, neither the Company nor
any of its subsidiaries shall, during the period from the date of
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this Agreement and continuing until the earlier of the termination of this
Agreement or the Effective Time, directly or indirectly do, any of the following
without the prior written consent of Parent, which consent shall not be
unreasonably withheld or delayed:
(a) amend or otherwise change the Certificate of Incorporation or By-Laws
of the Company;
(b) issue, sell, pledge, dispose of or encumber, or authorize the issuance,
sale, pledge, disposition or encumbrance of, any shares of capital stock of any
class, or any options, warrants, convertible securities or other rights of any
kind to acquire any shares of capital stock, or any other ownership interest
(including, without limitation, any phantom interest) in the Company, any of its
subsidiaries or affiliates (except for (i) the issuance of Company Common Shares
issuable pursuant to Stock Options listed in Section 2.11(c) of the Company
Disclosure Schedule, (ii) the grant of options under the Company Stock Option
Plans consistent with past practice to purchase up to 100,000 Company Common
Shares at the market value on the date of the grant to newly hired employees and
the issuance of shares upon exercise thereof, (iii) the issuance of Company
Common Shares upon conversion of the Company Preferred Shares, or (iv) the
issuance of Company Common Shares upon conversion of the Company's 8 1/2%
Convertible Subordinated Debentures;
(c) sell, pledge, dispose of or encumber any assets of the Company or any
of its subsidiaries (except for (i) sales of assets in the ordinary course of
business and in a manner substantially consistent with past practice, including
sale and leaseback transactions and the disposal of surplus real property, (ii)
disposition of obsolete or worthless assets, (iii) sales of immaterial assets
not in excess of $1,000,000 and (iv) encumbrances on assets pursuant to the
Company's existing bank credit facility or to secure purchase money financings
of equipment and capital improvements and in connection with the financing of
Permitted Acquisitions (as defined in Section 5.1(e)));
(d) (i) declare, set aside, make or pay any dividend or other distribution
(whether in cash, stock or property or any combination thereof) in respect of
any of its capital stock (other than regular quarterly cash dividends with
respect to the Company Preferred Shares), except that a wholly owned subsidiary
of the Company may declare and pay a dividend or make advances to its parent or
the Company, (ii) split, combine or reclassify any of its capital stock or issue
or authorize or propose the issuance of any other securities in respect of, in
lieu of or in substitution for shares of its capital stock, or (iii) amend the
terms or change the period of exercisability of, purchase, repurchase, redeem or
otherwise acquire, or permit any subsidiary to purchase, repurchase, redeem or
otherwise acquire, any of its securities or any securities of its subsidiaries,
including, without limitation, Company Common Shares or any option, warrant or
right, directly or indirectly, to acquire Company Common Shares, or propose to
do any of the foregoing; except for the acceleration of options pursuant to the
terms of the Company Stock Option Plans and the exercise of such options;
(e) (i) acquire (by merger, consolidation, or acquisition of stock or
assets) any corporation, partnership or other business organization or division
thereof other than those listed on Section 5.1(e) of the Company Disclosure
Schedule or otherwise consented to by Parent in writing ("Permitted
Acquisitions"), (ii) incur any indebtedness for borrowed money or debt
securities or assume, guarantee or endorse or otherwise as an accommodation
become responsible for, the obligations of any person or, except in the ordinary
course of business consistent with past practice (including borrowings under the
Company's existing revolving credit facility) or in connection with purchases of
equipment or capital improvements or in Permitted Acquisitions, make any loans
or advances (other than loans or advances to or from direct or indirect wholly
owned subsidiaries), (iii) enter into or amend any material contract other than
in the ordinary course of business or where such contract would not have a
Material Adverse Effect; (iv) authorize any capital expenditures or purchases of
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fixed assets which are, in the aggregate, in excess of the amounts set forth in
Section 5.1(e) of the Company Disclosure Schedule for the Company and its
subsidiaries taken as a whole; or (v) enter into or amend any contract,
agreement, commitment or arrangement to effect any of the matters prohibited by
this Section 5.1(e);
(f) except as set forth in Section 5.1(f) of the Company Disclosure
Schedule, increase the compensation payable or to become payable to any of its
officers or its general pay scale for other employees, except for increases in
salary or wages of employees of the Company or its subsidiaries in accordance
with past practice or, except in the ordinary course of business or pursuant to
agreements, plans or policies in effect prior to the date of this Agreement,
grant any severance or termination pay to, or enter into any employment or
severance agreement with, any director or officer of the Company, or establish,
adopt, enter into or amend in any material respect any bonus, profit sharing,
thrift, compensation, stock option, restricted stock, pension, retirement,
deferred compensation, employment, termination, severance or other plan,
agreement, trust, fund, policy or arrangement for the benefit of any current or
former directors or officers of the Company, except, in each case, as may be
required by law;
(g) except to conform to GAAP, take any action to change accounting
policies or procedures (including, without limitation, procedures with respect
to revenue recognition, payments of accounts payable and collection of accounts
receivable);
(h) make any material tax election inconsistent with past practice or
settle or compromise any material federal, state, local or foreign tax
liability, except to the extent the amount of any such settlement has been
reserved for in the financial statements contained in the Company Filed SEC
Reports;
(i) pay, discharge or satisfy any claims, liabilities or obligations
(absolute, accrued, asserted or unasserted, contingent or otherwise), other than
the payment, discharge or satisfaction in the ordinary course of business and
consistent with past practice of liabilities reflected or reserved against in
the financial statements contained in the Company Filed SEC Reports or incurred
in the ordinary course of business and consistent with past practice; or
(j) take, or agree in writing or otherwise to take, any of the actions
described in Sections 5.1(a) through (i) above, or any action which would make
any of the representations or warranties of the Company contained in this
Agreement untrue or incorrect in any material respects or prevent the Company
from performing in all material respects or cause the Company not to perform its
covenants hereunder.
SECTION 5.2 No Solicitation.
(a) The Company shall not, directly or indirectly through any officer,
director, employee, representative or agent of the Company or any of its
subsidiaries, (i) solicit or initiate any inquiries or proposals regarding any
merger, sale of substantial assets, sale of shares of capital stock (including
without limitation by way of a tender offer, but not in connection with
Permitted Acquisitions) or similar transactions involving the Company or any
subsidiaries of the Company other than the Merger (any of the foregoing
inquiries or proposals being referred to herein as an "Acquisition Proposal"),
(ii) engage in negotiations or discussions concerning, or provide any nonpublic
information to any person relating to, any Acquisition Proposal or (iii) agree
to approve or recommend any Acquisition Proposal. Nothing contained in this
Section 5.2(a) shall prevent the Company or any representative thereof from
furnishing or causing to be furnished, information and directing the Company,
its directors, officers, employees, representatives or agents to furnish
information, in each case pursuant
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to confidentiality agreements similar to the one then in effect between the
Company and Parent, and participating in discussions or negotiations with any
person or entity concerning any Acquisition Proposal if the Board shall conclude
after consultation with its financial advisor, that such person or entity has
made or is reasonably likely to make a bona fide Acquisition Proposal for a
transaction which it believes may be more favorable to the Company's
stockholders from a financial point of view than the transactions contemplated
hereby (any such Acquisition Proposal being referred to herein as a "Superior
Proposal").
(b) The Company shall promptly notify Parent after receipt of any written
Acquisition Proposal, or any modification of or amendment to any written
Acquisition Proposal, or any request for nonpublic information relating to the
Company or any of its subsidiaries in connection with an Acquisition Proposal or
for access to the properties, books or records of the Company or any subsidiary
by any person or entity that informs the Board that it is considering making, or
has made, an Acquisition Proposal. Such notice to Parent shall be made orally
and in writing, and shall indicate, if known, whether the Company is providing
or intends to provide the person making the Acquisition Proposal with access to
information concerning the Company as provided in Section 5.2(c).
(c) The Company shall immediately cease and, subject to the terms hereof,
cause to be terminated any existing discussions or negotiations with any person
(other than Parent and Acquisition) conducted heretofore with respect to any
Acquisition Proposal in effect as of the date of this Agreement. The Company
agrees not to release any third party from the confidentiality provisions of any
confidentiality agreement to which the Company is a party.
(d) The Company shall take what it determines to be reasonable steps to
provide reasonable assurance that the officers, directors and employees of the
Company and its subsidiaries and any investment banker or other advisor or
representative retained by the Company are aware of the restrictions described
in this Section 5.2.
ARTICLE VI
CONDITIONS TO THE MERGER
SECTION 6.1 Conditions to Obligation of Each Party to Effect the
Merger. The respective obligations of each party to effect the Merger shall be
subject to the satisfaction at or prior to the Effective Time of the following
conditions:
(a) Company Stockholder Approval. This Agreement shall have been adopted by
an affirmative vote of the holders of a majority of the outstanding Company
Common Shares and outstanding Company Preferred Shares (voting together as one
class);
(b) HSR Act. The waiting period applicable to the consummation of the
Merger under the HSR Act, if applicable, shall have expired or been terminated;
(c) No Injunctions or Restraints; Illegality. No temporary restraining
order, preliminary or permanent injunction or other order issued by any court of
competent jurisdiction or other legal restraint or prohibition preventing the
consummation of the Merger shall be in effect; and there shall not be any action
taken, or any statute, rule, regulation or order enacted, entered, enforced or
deemed applicable to the Merger which makes the consummation of the Merger
illegal;
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(d) Form S-4. If Parent elects to issue Parent Common Shares as part of the
Merger Consideration, the Form S-4 shall have become effective under the
Securities Act and shall not be the subject of any stop order or proceedings
seeking a stop order; and
(e) Fairness Opinions. The opinion of Bear Stearns dated October 16, 1998,
that as of that date the terms of the Merger are fair to the stockholders of the
Company from a financial point of view, shall not have been modified in any
materially adverse respect or withdrawn.
SECTION 6.2 Conditions to Obligations of Parent and Acquisition. The
obligations of Parent and Acquisition to effect the Merger are further subject
to the following conditions:
(a) Representations and Warranties. The representations and warranties of
the Company contained in this Agreement shall be true and correct in all
material respects on the date hereof and (except to the extent specifically
given as of an earlier date) on and as of the Closing Date as though made at the
Closing Date, and the Company shall have delivered to Parent a certificate dated
as of the Closing Date signed by an executive officer to the effect set forth in
this Section 6.2(a).
(b) Performance of Obligations of the Company. The Company shall have
performed in all material respects all obligations required to be performed by
it under this Agreement at or prior to the Closing Date, and the Company shall
have delivered to Parent a certificate dated as of the Closing Date signed by an
executive officer to the effect set forth in this Section 6.2(b).
SECTION 6.3 Conditions to Obligation of the Company. The obligation of the
Company to effect the Merger is further subject to the following conditions:
(a) Representations and Warranties. The representations and warranties of
Parent and Acquisition contained in this Agreement shall be true and correct in
all material respects on the date hereof and (except to the extent specifically
given as of an earlier date) on and as of the Closing Date as though made on the
Closing Date, and Parent and Acquisition shall have delivered to the Company a
certificate dated as of the Closing Date, signed by an executive officer of each
of them and to the effect set forth in this Section 6.3(a).
(b) Performance of Obligations of Parent and Acquisition. Each of Parent
and Acquisition shall have performed in all material respects all obligations
required to be performed by it under this Agreement at or prior to the Closing
Date, and Parent and Acquisition shall have delivered to the Company a
certificate dated as of the Closing Date, signed by an executive officer of each
of them and to the effect set forth in this Section 6.3(b).
(c) Exchange Listing. If Parent elects to issue Parent Common Shares as
part of the Merger Consideration, the Parent Common Shares issuable to the
Company's stockholders pursuant to this Agreement shall have been approved for
listing on the NYSE, subject to official notice of issuance.
ARTICLE VII
TERMINATION
SECTION 7.1 Termination. This Agreement may be terminated at any time
prior to the Effective Time, notwithstanding adoption by the stockholders of the
Company or Parent:
(a) by mutual written consent duly authorized by the Boards of Directors of
Parent and the Company; or
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(b) by either Parent or the Company if a court of competent jurisdiction or
governmental, regulatory or administrative agency or commission shall have
issued a nonappealable final order, decree or ruling or taken any other action
having the effect of permanently restraining, enjoining or otherwise prohibiting
the Merger (provided that the right to terminate this Agreement under this
Section 7.1(b) shall not be available to any party who has not complied with its
obligations under Section 4.5 and such noncompliance materially contributed to
the issuance of any such order, decree or ruling or the taking of such action);
(c) by Parent, prior to the Effective Time, if the Board shall withdraw,
modify or change its approval or recommendation of this Agreement or the Merger
in a manner adverse to Parent;
(d) by Parent or the Company, prior to the Effective Time (provided that
the terminating party is not then in material breach of any representation,
warranty, covenant or other agreement contained in this Agreement), (i) if any
representation or warranty of the Company or Parent, respectively, set forth in
this Agreement shall be untrue when made, or (ii) upon a breach in any material
respect of any covenant or agreement on the part of the Company or Parent,
respectively, set forth in this Agreement, in each case where such untruth or
breach would have a Material Adverse Effect on the Company or Parent, as the
case may be (either (i) or (ii) above being a "Terminating Breach"), provided,
that, if such Terminating Breach is curable by the Company or Parent, as the
case may be, through the exercise of its reasonable best efforts, then for so
long as the Company or Parent, as the case may be, continues to exercise such
reasonable best efforts, or if the Terminating Breach is cured, neither Parent
nor the Company, respectively, may terminate this Agreement under this Section
7.1(d);
(e) by Parent or the Company, prior to the Effective Time, if the Company
enters into a written agreement providing for the consummation of a transaction
that constitutes a Superior Proposal;
(f) by Parent or the Company, if the Special Meeting shall have been held
and this Agreement shall not have been adopted by the affirmative vote of the
holders of the requisite number of outstanding Company Common Shares and
outstanding Company Preferred Shares; or
(g) by Parent or the Company, if the Effective Time shall have not occurred
on or before March 31, 1999; provided, however, that neither Parent nor the
Company may terminate this Agreement pursuant to this Section 7.1(g) if such
party's failure to fulfill any of its obligations under this Agreement shall be
a reason that the Effective Time shall not have occurred on or before such date.
SECTION 7.2 Effect of Termination. In the event of the termination of this
Agreement pursuant to Section 7.1, this Agreement shall forthwith become void
and there shall be no liability on the part of any party hereto or any of its
affiliates, directors, officers or stockholders except (i) as set forth in
Section 7.3 and Section 8.1 hereof, and (ii) except as otherwise provided in
Section 7.3, nothing herein shall relieve any party from liability for any
Terminating Breach hereof by such party.
SECTION 7.3 Fees and Expenses.
(a) Except as set forth in this Section 7.3, all fees and expenses incurred
in connection with this Agreement and the transactions contemplated hereby shall
be paid by the party incurring such expenses, whether or not the Merger is
consummated.
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(b) The Company shall pay Parent a fee of $20 million (the "Company Fee"),
upon the first to occur of the following events:
(i) the termination of this Agreement pursuant to Section 7.1(e); or
(ii) the termination of this Agreement pursuant to Section 7.1(c) if
prior to such termination a Superior Proposal has been made and is pending.
(c) The Company Fee payable pursuant to Section 7.3(b) shall be paid within
two (2) business days after the first to occur of any of the events described in
Section 7.3(b)(i) or (ii); provided, that, in no event shall the Company be
required to pay the Company Fee to Parent if, immediately prior to the
termination of this Agreement, the Company would have been entitled to terminate
this Agreement pursuant to Section 7.1(b), 7.1(g) or 7.1(d) on account of a
Terminating Breach by Parent. The payment of the Company Fee shall be Parent's
sole and exclusive remedy for the event giving rise to the payment of the
Company Fee.
ARTICLE VIII
GENERAL PROVISIONS
SECTION 8.1 Effectiveness of Representations, Warranties and Agreements;
Knowledge, Etc.
(a) Except as otherwise provided in this Section 8.1, the representations,
warranties and agreements of each party hereto shall remain operative and in
full force and effect regardless of any investigation made by or on behalf of
any other party hereto, any person controlling any such party or any of their
officers or directors, whether prior to or after the execution of this
Agreement. The representations, warranties and agreements in this Agreement
shall terminate at the Effective Time or upon the termination of this Agreement
pursuant to Section 7.1, as the case may be, except that (i) if the Merger is
consummated the agreements set forth in Article I shall survive the Effective
Time indefinitely, (ii) the agreements in Sections 4.9, 4.12 and 4.13 shall
survive in accordance with their respective terms and (iii) the agreements set
forth in Section 7.3 shall survive termination indefinitely. The Confidentiality
Letter shall survive termination of this Agreement as provided therein.
(b) Any representation and warranty made in this Agreement by the Company
will be deemed for all purposes to be qualified by the disclosures made in any
Company Disclosure Schedule specifically referred to in such representation or
warranty and by the information disclosed in any other Company Disclosure
Schedule if the relevance of such information to such representation and
warranty is reasonably apparent on its face.
SECTION 8.2 Notices. All notices and other communications given or made
pursuant hereto shall be in writing and shall be deemed to have been duly given
or made if and when delivered personally or by overnight courier to the parties
at the following addresses or sent by electronic
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transmission, with confirmation received, to the telecopy numbers specified
below (or at such other address or telecopy number for a party as shall be
specified by like notice):
(a) If to Parent or Acquisition:
Laidlaw Inc.
3221 N. Service Road
P.O. Box 5028
Burlington, Ontario
Canada L7R 3Y8
Attention: Ivan R. Cairns, Senior Vice President
and General Counsel
Telecopier No.: (905) 332-6550
Telephone No.: (905) 336-1800
(b) If to the Company:
Greyhound Lines, Inc.
15110 N. Dallas Parkway
Dallas, Texas 75248
Attention: Craig R. Lentzsch, President and
Chief Executive Officer
Telecopier No.: (972) 387-1874
Telephone No.: (972) 789-7000
With a copy to:
Jones, Day, Reavis & Pogue
599 Lexington Avenue
New York, New York 10022
Attention: Robert A. Profusek, Esq.
Telecopier No.: (212) 755-7306
Telephone No.: (212) 326-3939
SECTION 8.3 Certain Definitions. For purposes of this Agreement, the
term:
(a) "$" or "dollars" means the lawful currency of the United States of
America.
(b) "affiliates" means a person that directly or indirectly, through one or
more intermediaries, controls, is controlled by, or is under common control
with, the first mentioned person;
(c) "business day" means any day other than a day on which banks in New
York City are required or authorized to be closed;
(d) "control" (including the terms "controlled by" and "under common
control with") means the possession, directly or indirectly or as trustee or
executor, of the power to direct or cause the direction of the management or
policies of a person, whether through the ownership of stock, as trustee or
executor, by contract or credit arrangement or otherwise;
(e) "person" means an individual, corporation, partnership, association,
trust, unincorporated organization, other entity or group (as defined in Section
13(d)(3) of the Exchange Act); and
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(f) "subsidiary" or "subsidiaries" of the Company, the Surviving
Corporation, Parent or any other person means any corporation, partnership,
joint venture or other legal entity of which the Company, the Surviving
Corporation, Parent or such other person, as the case may be (either alone or
through or together with any other subsidiary), owns, directly or indirectly,
more than 50% of the stock or other equity interests the holders of which are
generally entitled to vote for the election of the board of directors or other
governing body of such corporation or other legal entity.
SECTION 8.4 Amendment. This Agreement may be amended by the parties hereto
by action taken by or on behalf of their respective Boards of Directors at any
time prior to the Effective Time; provided, however, that, after adoption of
this Agreement by the stockholders of the Company, no amendment may be made
which by law requires further approval by such stockholders without such further
approval. This Agreement may not be amended except by an instrument in writing
signed by the parties hereto.
SECTION 8.5 Waiver. At any time prior to the Effective Time, any party
hereto may with respect to any other party hereto (i) extend the time for the
performance of any of the obligations or other acts; (ii) waive any inaccuracies
in the representations and warranties contained herein or in any document
delivered pursuant hereto; or (iii) waive compliance with any of the agreements
or conditions contained herein. Any such extension or waiver shall be valid if
set forth in an instrument in writing signed by the party or parties to be bound
thereby.
SECTION 8.6 Headings. The headings contained in this Agreement are for
reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
SECTION 8.7 Severability. If any term or other provision of this Agreement
is invalid, illegal or incapable of being enforced by any rule of law, or public
policy, all other conditions and provisions of this Agreement shall nevertheless
remain in full force and effect so long as the economic or legal substance of
the transactions contemplated hereby is not affected in any manner materially
adverse to any party. Upon such determination that any term or other provision
is invalid, illegal or incapable of being enforced, the parties hereto shall
negotiate in good faith to modify this Agreement so as to effect the original
intent of the parties as closely as possible in an acceptable manner to the end
that transactions contemplated hereby are fulfilled to the fullest extent
possible.
SECTION 8.8 Entire Agreement. This Agreement constitutes the entire
agreement and supersedes all prior agreements and undertakings (other than the
Confidentiality Letter), both written and oral, among the parties, or any of
them, with respect to the subject matter hereof and, except as otherwise
expressly provided herein.
SECTION 8.9 Assignment; Guarantee of Acquisition Obligations. This
Agreement shall not be assigned or delegated by operation of law or otherwise,
except that Acquisition may assign all or any of its rights hereunder to any
other direct or indirect wholly owned subsidiary of Parent that is a corporation
organized under Delaware Law provided that no such assignment shall relieve the
assigning party of its obligations hereunder. Parent guarantees the full and
punctual performance by Acquisition or any such assignees of all the obligations
hereunder of Acquisition or any such assignees.
SECTION 8.10 Parties in Interest. This Agreement shall be binding upon and
inure solely to the benefit of each party hereto, and nothing in this Agreement,
express or implied, is intended to or shall confer upon any other person any
right, benefit or remedy of any nature whatsoever under or by reason of this
Agreement, including, without limitation, by way of subrogation, other than
Section 4.9 (which is intended to be for the benefit of the holders of Stock
Options and may be enforced by such
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holders), Section 4.12 (which is intended to be for the benefit of the
Indemnified Parties and may be enforced by such Indemnified Parties), and 4.13
(which is intended to be for the benefit of the employees of the Company and its
subsidiaries and may be enforced by any person who is an officer of the Company
as of the Effective Time on behalf of such officer and the other employees of
the Company).
SECTION 8.11 Failure or Indulgence Not Waiver; Remedies Cumulative. No
failure or delay on the part of any party hereto in the exercise of any right
hereunder shall impair such right or be construed to be a waiver of, or
acquiescence in, any breach of any representation, warranty or agreement herein,
nor shall any single or partial exercise of any such right preclude other or
further exercise thereof or of any other right. All rights and remedies existing
under this Agreement are cumulative to, and not exclusive of, any rights or
remedies otherwise available.
SECTION 8.12 Governing Law. This Agreement shall be governed by, and
construed in accordance with, the internal laws of the State of Delaware
applicable to contracts executed and fully performed within the State of
Delaware.
SECTION 8.13 Consent to Jurisdiction and Service of Process.
(a) Parent consents to the non-exclusive jurisdiction of any court of the
State of Delaware or any United States federal court sitting in the State of
Delaware, United States, and any appellate court from any thereof, and waives
any immunity from the jurisdiction of such courts over any suit, action or
proceeding that may be brought in connection with this Agreement. Parent
irrevocably waives, to the fullest extent permitted by law, any objection to any
suit, action or proceeding that may be brought in connection with this Agreement
in such courts whether on the grounds of venue, residence or domicile or on the
ground that any such suit, action or proceeding has been brought in an
inconvenient forum. Parent agrees that final judgment in any such suit, action
or proceeding brought in such court shall be conclusive and binding upon Parent
and may be enforced in any court to the jurisdiction of which Parent is subject
by suit upon such judgment; provided that service of process is effected upon
Parent in the manner provided in this Agreement.
(b) Parent agrees that service of all writs, process and summonses in any
suit, action or proceeding brought in connection with this Agreement against
Parent in any court sitting in the State of Delaware, United States may be made
upon Schiff Hardin & Waite at 6600 Sears Tower, Chicago, Illinois 60606
(attention: Stephen J. Dragich), whom Parent irrevocably appoints as its
authorized agent for service for process. Parent represents and warrants that
Schiff Hardin & Waite has agreed to act as Parent's agent for service of
process. Parent agrees that such appointment shall be irrevocable so long as
this Agreement shall remain in effect or until the irrevocable appointment by
Parent of a successor as its authorized agent for such purpose and the
acceptance of such appointment by such successor. Parent further agrees to take
any and all action, including the filing of any and all documents and
instruments, that may be necessary to continue such appointment in full force
and effect as aforesaid. If Schiff Hardin & Waite shall cease to be Parent's
agent for service of process, Parent shall appoint without delay another such
agent and provide prompt written notice to the Company, to the extent known to
it, of such appointment. With respect to any such action in any court of the
State of Delaware or any United States federal court in the State of Delaware,
United States, service of process upon Schiff Hardin & Waite, as the authorized
agent of Parent for service of process, and written notice of such service to
Parent, shall be deemed, in every respect, effective service of process upon
Parent.
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(c) Nothing in this Section 8.13 shall affect the right of any party to
serve legal process in any other manner permitted by law of affect the right of
any party to bring any action or proceeding against any other party or its
property in the courts of other jurisdictions.
SECTION 8.14 Counterparts. This Agreement may be executed in one or more
counterparts, and by the different parties hereto in separate counterparts, each
of which when executed shall be deemed to be an original but all of which taken
together shall constitute one and the same agreement.
[This space intentionally left blank.]
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IN WITNESS WHEREOF, Parent, Acquisition and the Company have caused this
Agreement to be executed by their respective officers thereunto duly authorized.
LAIDLAW INC.
By: /s/ JAMES R. BULLOCK
-----------------------------------------
Name: James R. Bullock
Title: President and Chief Executive
Officer
LAIDLAW TRANSIT ACQUISITION CORP.
By: /s/ IVAN R. CAIRNS
-----------------------------------------
Name: Ivan R. Cairns
Title: Vice President
GREYHOUND LINES, INC.
By: /s/ CRAIG R. LENTZSCH
-----------------------------------------
Name: Craig R. Lentzsch
Title: President and Chief Executive
Officer
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APPENDIX B
[BEAR STEARNS LETTERHEAD]
As of October 16, 1998
Board of Directors
Greyhound Lines, Inc.
15110 North Dallas Parkway, Suite 600
Dallas, TX 75248
Attention: Thomas G. Plaskett, Chairman of the Board
Craig R. Lentzsch, Chief Executive Officer
Ladies and Gentlemen:
We understand that Greyhound Lines, Inc. ("Greyhound") and Laidlaw Inc.
("Laidlaw") have entered into an Agreement and Plan of Merger dated October 16,
1998 (as amended and restated as of November 5, 1998, the "Agreement"), pursuant
to which a wholly-owned subsidiary of Laidlaw will acquire Greyhound in a merger
transaction (the "Transaction") whereby each share of Greyhound common stock
will be converted into the right to receive $6.50 in aggregate value (the
"Transaction Consideration"), and whereby each share of Greyhound 8.5%
convertible exchangeable preferred stock will remain outstanding pursuant to the
terms of such securities. The Transaction Consideration shall be payable in
cash, subject to Laidlaw's option to satisfy up to $4.00 of the Transaction
Consideration with shares of Laidlaw common stock. The amount, if any, of
Laidlaw common stock to be offered as part of the Transaction Consideration will
be determined in a manner set forth in the Agreement.
You have asked us to render our opinion as to whether the Transaction
Consideration is fair, from a financial point of view, to the stockholders of
Greyhound.
In the course of our analyses for rendering this opinion, we have:
1. reviewed the Agreement;
2. reviewed Greyhound's Annual Reports to Shareholders and Annual Reports
on Form 10-K for the fiscal years ended December 31, 1995 through
1997, and its Quarterly Reports on Form 10-Q for the periods ended
March 31, 1998 and June 30, 1998;
3. reviewed certain operating and financial information, including
internal financial projections, provided to us and reviewed for us by
management relating to Greyhound's business and prospects;
4. met with certain members of Greyhound's senior management to discuss
its operations, historical financial statements and future prospects;
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Greyhound Lines, Inc.
As of October 16, 1998
Page 2
5. reviewed Laidlaw's Annual Reports to Shareholders and Annual Reports
on Form 10-K for the fiscal years ended August 31, 1995 through 1997,
its Quarterly Reports on Form 10-Q for the periods ended November 30,
1997, February 28, 1998 and May 31, 1998, and a draft of its
consolidated financial statements for the fiscal year ended August 31,
1998;
6. reviewed certain operating and financial information, including
internal financial projections, provided to us and reviewed for us by
management relating to Laidlaw's business and prospects;
7. met with certain members of Laidlaw's senior management to discuss its
operations, historical financial statements and future prospects;
8. reviewed the historical prices and trading volumes of the common
shares of Greyhound and Laidlaw;
9. reviewed publicly available financial data, stock market performance
data and valuation parameters of companies which we deemed generally
comparable to Greyhound and Laidlaw;
10. reviewed the financial terms of recent acquisitions of companies which
we deemed generally comparable to the Transaction; and
11. conducted such other studies, analyses, inquiries and investigations
as we deemed appropriate.
In the course of our review, we have relied upon and assumed, without assuming
any responsibility for independent verification, the accuracy and completeness
of all of the financial and other information (including estimates and
projections) provided to, discussed with, or reviewed by or for us by Greyhound
and Laidlaw or publicly available for purposes of this opinion, including,
without limitation, the adequacy of Laidlaw's reserves relating to loss
contingencies. We have further relied upon the assurances of the senior
managements of Greyhound and Laidlaw that they are unaware of any facts that
would make the information, estimates and projections provided to, discussed
with, or reviewed by or for us incomplete, inaccurate or misleading. With
respect to Greyhound's and Laidlaw's internal financial projections and
estimates of potential synergies that could be achieved upon consummation of the
Transaction, we have assumed that they have been reasonably prepared on bases
reflecting the best currently available estimates and judgments of the senior
managements of Greyhound and Laidlaw as to the expected future performance of
Greyhound and Laidlaw, respectively. We express no view as to such information,
or the assumptions on which they were based. For purposes of rendering our
opinion, we have further assumed that the current matter before the United
States Tax Court will not have a material adverse effect on Laidlaw's financial
condition, results of operations, business or prospects. In arriving at our
opinion, we have not performed or obtained any independent appraisal of the
assets or liabilities of Greyhound or Laidlaw, nor have we been furnished with
any such appraisals. Our opinion is necessarily based on economic, market and
other conditions, and the information made available to us, as of October 16,
1998 (except with respect to the Agreement which is amended and restated as of
November 5, 1998).
For purposes of rendering our opinion we have assumed, in all respects material
to our analysis, that the representations and warranties of each party contained
in the Agreement are true and correct, that each party will perform all of the
covenants and agreements required to be performed by it under
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Greyhound Lines, Inc.
As of October 16, 1998
Page 3
the Agreement and all conditions to the consummation of the Transaction will be
satisfied without waiver thereof.
We do not express any opinion as to the price or range of prices at which shares
of common stock of Laidlaw may trade subsequent to the consummation of the
Transaction.
Bear Stearns is a nationally recognized investment banking firm and has
previously provided investment banking services to Greyhound and Laidlaw. In the
ordinary course of business, Bear Stearns may actively trade the equity
securities of Greyhound and Laidlaw for its own account and for the accounts of
its customers and, accordingly, may at any time hold a long or short position in
such securities.
It is understood that this letter is intended for the benefit and use of the
Board of Directors of Greyhound in its evaluation of the Transaction. This
letter does not constitute a recommendation to the Board of Directors of
Greyhound or any stockholders of Greyhound as to how to vote in connection with
the Transaction. This opinion does not address Greyhound's underlying business
decision to pursue the Transaction. This letter is not to be used for any other
purpose, or reproduced, disseminated, quoted from or referred to at any time, in
whole or in part, without our prior written consent; provided, however, that
this letter may be included in its entirety in any proxy statement/prospectus to
be distributed to the stockholders of Greyhound in connection with the
Transaction.
We have acted as a financial advisor to Greyhound in connection with the
Transaction and will receive a fee for such services.
Based on and subject to the foregoing, it is our opinion that as of the date
hereof the Transaction Consideration is fair, from a financial point of view, to
the stockholders of Greyhound.
Very truly yours,
BEAR, STEARNS & CO. INC.
By: /s/ JAMES NISH
--------------------------------
Senior Managing Director
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APPENDIX C
Delaware General Corporation Law
Section 262
(a) Any stockholder of a corporation of this State who holds shares of stock on
the date of the making of a demand pursuant to subsection (d) of this
section with respect to such shares, who continuously holds such shares
through the effective date of the merger or consolidation, who has otherwise
complied with subsection (d) of this section and who has neither voted in
favor of the merger or consolidation nor consented thereto in writing
pursuant to sec. 228 of this title shall be entitled to an appraisal by the
Court of Chancery of the fair value of the stockholder's shares of stock
under the circumstances described in subsections (b) and (c) of this
section. As used in this section, the word "stockholder" means a holder of
record of stock in a stock corporation and also a member of record of a
nonstock corporation; the words "stock" and "share" mean and include what is
ordinarily meant by those words and also membership or membership interest
of a member of a nonstock corporation; and the words "depository receipt"
mean a receipt or other instrument issued by a depository representing an
interest in one or more shares, or fractions thereof, solely of stock of a
corporation, which stock is deposited with the depository.
(b) Appraisal rights shall be available for the shares of any class or series of
stock of a constituent corporation in a merger or consolidation to be
effected pursuant to sec. 251 (other than a merger effected pursuant to
sec. 251(g) of this title), sec. 252, sec. 254, sec. 257, sec. 258, sec. 263
or sec. 264 of this title:
(1) Provided, however, that no appraisal rights under this section shall be
available for the shares of any class or series of stock, which stock,
or depository receipts in respect thereof, at the record date fixed to
determine the stockholders entitled to receive notice of and to vote at
the meeting of stockholders to act upon the agreement of merger or
consolidation, were either (i) listed on a national securities exchange
or designated as a national market system security on an interdealer
quotation system by the National Association of Securities Dealers,
Inc. or (ii) held of record by more than 2,000 holders; and further
provided that no appraisal rights shall be available for any shares of
stock of the constituent corporation surviving a merger if the merger
did not require for its approval the vote of the stockholders of the
surviving corporation as provided in subsection (f) of sec. 251 of this
title.
(2) Notwithstanding paragraph (1) of this subsection, appraisal rights
under this section shall be available for the shares of any class or
series of stock of a constituent corporation if the holders thereof are
required by the terms of an agreement of merger or consolidation
pursuant to sections 251, 252, 254, 257, 258, 263 and 264 of this title
to accept for such stock anything except:
a. Shares of stock of the corporation surviving or resulting from such
merger or consolidation, or depository receipts in respect thereof;
b. Shares of stock of any other corporation, or depository receipts in
respect thereof, which shares of stock (or depository receipts in
respect thereof) or depository receipts at the effective date of the
merger or consolidation will be either listed on a national
securities exchange or designated as a national market system
security on an interdealer quotation system by the National
Association of Securities Dealers, Inc. or held of record by more
than 2,000 holders;
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c. Cash in lieu of fractional shares or fractional depository receipts
described in the foregoing subparagraphs a. and b. of this paragraph;
or
d. Any combination of the shares of stock, depository receipts and cash
in lieu of fractional shares or fractional depository receipts
described in the foregoing subparagraphs a., b. and c. of this
paragraph.
(3) In the event all of the stock of a subsidiary Delaware corporation
party to a merger effected under sec. 253 of this title is not owned by
the parent corporation immediately prior to the merger, appraisal
rights shall be available for the shares of the subsidiary Delaware
corporation.
(c) Any corporation may provide in its certificate of incorporation that
appraisal rights under this section shall be available for the shares of any
class or series of its stock as a result of an amendment to its certificate
of incorporation, any merger or consolidation in which the corporation is a
constituent corporation or the sale of all or substantially all of the
assets of the corporation. If the certificate of incorporation contains such
a provision, the procedures of this section, including those set forth in
subsections (d) and (e) of this section, shall apply as nearly as is
practicable.
(d) Appraisal rights shall be perfected as follows:
(1) If a proposed merger or consolidation for which appraisal rights are
provided under this section is to be submitted for approval at a
meeting of stockholders, the corporation, not less than 20 days prior
to the meeting, shall notify each of its stockholders who was such on
the record date for such meeting with respect to shares for which
appraisal rights are available pursuant to subsection (b) or (c) hereof
that appraisal rights are available for any or all of the shares of the
constituent corporations, and shall include in such notice a copy of
this section. Each stockholder electing to demand the appraisal of such
stockholder's shares shall deliver to the corporation, before the
taking of the vote on the merger or consolidation, a written demand for
appraisal of such stockholder's shares. Such demand will be sufficient
if it reasonably informs the corporation of the identity of the
stockholder and that the stockholder intends thereby to demand the
appraisal of such stockholder's shares. A proxy or vote against the
merger or consolidation shall not constitute such a demand. A
stockholder electing to take such action must do so by a separate
written demand as herein provided. Within 10 days after the effective
date of such merger or consolidation, the surviving or resulting
corporation shall notify each stockholder of each constituent
corporation who has complied with this subsection and has not voted in
favor of or consented to the merger or consolidation of the date that
the merger or consolidation has become effective; or
(2) If the merger or consolidation was approved pursuant to sec. 228 or
sec. 253 of this title, each constituent corporation, either before the
effective date of the merger or consolidation or within ten days
thereafter, shall notify each of the holders of any class or series of
stock of such constituent corporation who are entitled to appraisal
rights of the approval of the merger or consolidation and that
appraisal rights are available for any or all shares of such class or
series of stock of such constituent corporation, and shall include in
such notice a copy of this section; provided that, if the notice is
given on or after the effective date of the merger or consolidation,
such notice shall be given by the surviving or resulting corporation to
all such holders of any class or series of stock of a constituent
corporation that are
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entitled to appraisal rights. Such notice may, and, if given on or
after the effective date of the merger or consolidation, shall, also
notify such stockholders of the effective date of the merger or
consolidation. Any stockholder entitled to appraisal rights may, within
20 days after the date of mailing of such notice, demand in writing
from the surviving or resulting corporation the appraisal of such
holder's shares. Such demand will be sufficient if it reasonably
informs the corporation of the identity of the stockholder and that the
stockholder intends thereby to demand the appraisal of such holder's
shares. If such notice did not notify stockholders of the effective
date of the merger or consolidation, either (i) each such constituent
corporation shall send a second notice before the effective date of the
merger or consolidation notifying each of the holders of any class or
series of stock of such constituent corporation that are entitled to
appraisal rights of the effective date of the merger or consolidation
or (ii) the surviving or resulting corporation shall send such a second
notice to all such holders on or within 10 days after such effective
date; provided, however, that if such second notice is sent more than
20 days following the sending of the first notice, such second notice
need only be sent to each stockholder who is entitled to appraisal
rights and who has demanded appraisal of such holder's shares in
accordance with this subsection. An affidavit of the secretary or
assistant secretary or of the transfer agent of the corporation that is
required to give either notice that such notice has been given shall,
in the absence of fraud, be prima facie evidence of the facts stated
therein. For purposes of determining the stockholders entitled to
receive either notice, each constituent corporation may fix, in
advance, a record date that shall be not more than 10 days prior to the
date the notice is given, provided, that if the notice is given on or
after the effective date of the merger or consolidation, the record
date shall be such effective date. If no record date is fixed and the
notice is given prior to the effective date, the record date shall be
the close of business on the day next preceding the day on which the
notice is given.
(e) Within 120 days after the effective date of the merger or consolidation, the
surviving or resulting corporation or any stockholder who has complied with
subsections (a) and (d) hereof and who is otherwise entitled to appraisal
rights, may file a petition in the Court of Chancery demanding a
determination of the value of the stock of all such stockholders.
Notwithstanding the foregoing, at any time within 60 days after the
effective date of the merger or consolidation, any stockholder shall have
the right to withdraw such stockholder's demand for appraisal and to accept
the terms offered upon the merger or consolidation. Within 120 days after
the effective date of the merger or consolidation, any stockholder who has
complied with the requirements of subsections (a) and (d) hereof, upon
written request, shall be entitled to receive from the corporation surviving
the merger or resulting from the consolidation a statement setting forth the
aggregate number of shares not voted in favor of the merger or consolidation
and with respect to which demands for appraisal have been received and the
aggregate number of holders of such shares. Such written statement shall be
mailed to the stockholder within 10 days after such stockholder's written
request for such a statement is received by the surviving or resulting
corporation or within 10 days after expiration of the period for delivery of
demands for appraisal under subsection (d) hereof, whichever is later.
(f) Upon the filing of any such petition by a stockholder, service of a copy
thereof shall be made upon the surviving or resulting corporation, which
shall within 20 days after such service file in the office of the Register
in Chancery in which the petition was filed a duly verified list containing
the names and addresses of all stockholders who have demanded payment for
their shares and with whom agreements as to the value of their shares have
not been reached by the
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surviving or resulting corporation. If the petition shall be filed by the
surviving or resulting corporation, the petition shall be accompanied by
such a duly verified list. The Register in Chancery, if so ordered by the
Court, shall give notice of the time and place fixed for the hearing of such
petition by registered or certified mail to the surviving or resulting
corporation and to the stockholders shown on the list at the addresses
therein stated. Such notice shall also be given by 1 or more publications at
least 1 week before the day or the hearing, in a newspaper of general
circulation published in the City of Wilmington, Delaware or such
publication as the Court deems advisable. The forms of the notices by mail
and by publication shall be approved by the Court, and the costs thereof
shall be borne by the surviving or resulting corporation.
(g) At the hearing on such petition, the Court shall determine the stockholders
who have complied with this section and who have become entitled to
appraisal rights. The Court may require the stockholders who have demanded
an appraisal for their shares and who hold stock represented by certificates
to submit their certificates of stock to the Register in Chancery for
notation thereon of the pendency of the appraisal proceedings; and if any
stockholder fails to comply with such direction, the Court may dismiss the
proceedings as to such stockholder.
(h) After determining the stockholders entitled to an appraisal, the Court shall
appraise the shares, determining their fair value exclusive of any element
of value arising from the accomplishment or expectation of the merger or
consolidation, together with a fair rate of interest, if any, to be paid
upon the amount determined to be the fair value. In determining such fair
value, the Court shall take into account all relevant factors. In
determining the fair rate of interest, the Court may consider all relevant
factors, including the rate of interest which the surviving or resulting
corporation would have had to pay to borrow money during the pendency of the
proceeding. Upon application by the surviving or resulting corporation or by
any stockholder entitled to participate in the appraisal proceeding, the
Court may, in its discretion, permit discovery or other pretrial proceedings
and may proceed to trial upon the appraisal prior to the final determination
of the stockholder entitled to an appraisal. Any stockholder whose name
appears on the list filed by the surviving or resulting corporation pursuant
to subsection (f) of this section and who has submitted such stockholder's
certificates of stock to the Register in Chancery, if such is required, may
participate fully in all proceedings until it is finally determined that
such stockholder is not entitled to appraisal rights under this section.
(i) The Court shall direct the payment of the fair value of the shares, together
with interest, if any, by the surviving or resulting corporation to the
stockholders entitled thereto. Interest may be simple or compound, as the
Court may direct. Payment shall be so made to each such stockholder, in the
case of holders of uncertificated stock forthwith, and the case of holders
of shares represented by certificates upon the surrender to the corporation
of the certificates representing such stock. The Court's decree may be
enforced as other decrees in the Court of Chancery may be enforced, whether
such surviving or resulting corporation be a corporation of this State or of
any state.
(j) The costs of the proceeding may be determined by the Court and taxed upon
the parties as the Court deems equitable in the circumstances. Upon
application of a stockholder, the Court may order all or a portion of the
expenses incurred by any stockholder in connection with the appraisal
proceeding, including, without limitation, reasonable attorney's fees and
the fees and expenses of experts, to be charged pro rata against the value
of all the shares entitled to an appraisal.
(k) From and after the effective date of the merger or consolidation, no
stockholder who has demanded appraisal rights as provided in subsection (d)
of this section shall be entitled to vote
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such stock for any purpose or to receive payment of dividends or other
distributions on the stock (except dividends or other distributions payable
to stockholders of record at a date which is prior to the effective date of
the merger or consolidation); provided, however, that if no petition for an
appraisal shall be filed within the time provided in subsection (e) of this
section, or if such stockholder shall deliver to the surviving or resulting
corporation a written withdrawal of such stockholder's demand for an
appraisal and an acceptance of the merger or consolidation, either within 60
days after the effective date of the merger or consolidation as provided in
subsection (e) of this section or thereafter with the written approval of
the corporation, then the right of such stockholder to an appraisal shall
cease. Notwithstanding the foregoing, no appraisal proceeding in the Court
of Chancery shall be dismissed as to any stockholder without the approval of
the Court, and such approval may be conditioned upon such terms as the Court
deems just.
(l) The shares of the surviving or resulting corporation to which the shares of
such objecting stockholders would have been converted had they assented to
the merger or consolidation shall have the status of authorized and unissued
shares of the surviving or resulting corporation.
C-5
<PAGE> 131
[FORM OF PROXY]
GREYHOUND LINES, INC.
THIS PROXY IS SOLICITED ON BEHALF OF THE BOARD OF DIRECTORS OF
GREYHOUND LINES, INC.
FOR USE AT THE SPECIAL MEETING OF STOCKHOLDERS TO BE HELD ON , 199
The undersigned holder of shares of common stock, par value $0.01 per share,
of Greyhound Lines, Inc. ("Greyhound") and/or shares of 8 1/2% convertible
exchangeable preferred stock, par value $0.01 per share, of Greyhound hereby
appoints Thomas G. Plaskett and Craig R. Lentzsch and each of them, as proxies
of the undersigned, with full power of substitution and resubstitution, to
represent and vote as set forth herein all of the shares of common stock of
Greyhound and/or shares of preferred stock of Greyhound held of record by the
undersigned on , 199 at the Special Meeting of stockholders to
be held on , 199 , starting at : .m., local time, at
, , Texas, and at any and all postponements and
adjournments thereof (the "Special Meeting").
THIS PROXY, WHEN PROPERLY EXECUTED, WILL BE VOTED IN THE MANNER DIRECTED BY
THE UNDERSIGNED STOCKHOLDER. IF NO DIRECTION IS INDICATED, THIS PROXY WILL BE
VOTED "FOR" THE PROPOSAL SET FORTH ON THE OTHER SIDE OF THIS PROXY AND OTHERWISE
IN THE DISCRETION OF THE PROXY HOLDERS AS TO ANY OTHER MATTER WHICH MAY PROPERLY
COME BEFORE THE SPECIAL MEETING.
(Continued, and to be dated and signed, on the other side)
- --------------------------------------------------------------------------------
o FOLD AND DETACH HERE o
YOUR VOTE IS IMPORTANT!
YOU CAN VOTE IN ONE OF TWO WAYS:
1. Call TOLL FREE 1-800- - from a Touch Tone telephone and follow the
instructions on the reverse side. There is NO CHARGE to you for this call
OR
2. Mark, sign and date our proxy card and return it promptly in the enclosed
postage-paid envelope.
PLEASE VOTE
<PAGE> 132
[X] Please mark your vote as in this example.
THE BOARD OF DIRECTORS OF GREYHOUND LINES, INC. RECOMMENDS A VOTE FOR THE
FOLLOWING PROPOSAL:
Adoption of an Amended and Restated Agreement and Plan of Merger among Greyhound
Lines, Inc., a Delaware corporation, Laidlaw Inc., a Canadian corporation and
Laidlaw Transit Acquisition Corp., a Delaware corporation and a wholly owned
subsidiary of Laidlaw Inc.
[ ] FOR [ ] AGAINST [ ] ABSTAIN
***IF YOU WISH TO VOTE BY TELEPHONE, PLEASE READ THE INSTRUCTIONS BELOW***
This proxy should be dated, signed by the stockholder as his or her name appears
below, and returned promptly in the enclosed envelope. Joint owners should each
sign personally, and trustees and others signing in a representative capacity
should indicate the capacity in which they sign.
Dated:
--------------------------------------------------
- ---------------------------------------------------------
Signature of Stockholder
- ---------------------------------------------------------
Signature of Stockholder
USE BLUE OR BLACK INK
THIS PROXY IS REVOCABLE AND WILL BE VOTED AS DIRECTED, BUT IF NO INSTRUCTIONS
ARE SPECIFIED, THIS PROXY WILL BE VOTED FOR THE PROPOSAL LISTED. IF ANY OTHER
BUSINESS IS PRESENTED AT THE SPECIAL MEETING, INCLUDING WHETHER OR NOT TO
ADJOURN THE MEETING, THIS PROXY WILL BE VOTED BY THOSE NAMED IN THIS PROXY IN
THEIR BEST JUDGMENT. AT THE PRESENT TIME, THE BOARD OF DIRECTORS KNOWS OF NO
OTHER BUSINESS TO BE PRESENTED AT THE SPECIAL MEETING.
- -----------------------------------------------------------------------------
o FOLD AND DETACH HERE o
VOTE BY TELEPHONE
QUICK *** EASY *** TOLL FREE *** IMMEDIATE
Your telephone vote authorizes the named proxies to vote your shares in the same
manner as if you marked, signed, and returned your proxy card.
* You will be asked to enter a Control Number which is located in the box in the
lower right hand corner of this form.
TO VOTE ON THE PROPOSAL TO ADOPT THE MERGER AGREEMENT, YOU WILL HEAR THESE
INSTRUCTIONS:
To vote FOR, press 1; AGAINST, press 9; ABSTAIN, press 0.
When asked, please confirm your vote by pressing 1.
PLEASE DO NOT RETURN THE ABOVE PROXY IF VOTED BY PHONE.
CALL ** TOLL FREE ** ANYTIME FROM A TOUCH TONE TELEPHONE
1-800- -
THERE IS NO CHARGE TO YOU FOR THIS CALL.
