UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
Eastern Environmental Services, Inc.
------------------------------------
(Name of issuer)
Common Stock
------------
(Title of class of securities)
276369105
---------
(CUSIP Number)
Gregory T. Sangalis
Waste Management, Inc.
1001 Fannin, Suite 4000
Houston, Texas 77002
Tel. No.: (713) 512-6200
---------------------------------------------
(Name, address and telephone number of person
authorized to receive notices and communications)
August 16, 1998
---------------------------------------------
(Date of event which requires filing of this statement)
If the filing person has previously filed a statement on Schedule 13G to report
the acquisition which is the subject of this Schedule 13D, and is filing this
statement because of Rule 13d-1(b)(3) or (4), check the following |_|.
Check the following box if a fee is being paid with the statement |_|.
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2
1 NAME OF REPORTING PERSON
Waste Management, Inc.
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON 73-1309529
- --------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) |X|
(b) |_|
- --------------------------------------------------------------------------------
3 SEC USE ONLY
- --------------------------------------------------------------------------------
4 SOURCE OF FUNDS OO
- --------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) or 2(e) |_|
- --------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION State of Delaware
- --------------------------------------------------------------------------------
NUMBER OF 7 SOLE VOTING POWER 655,000
SHARES -------------------------------------------------------
BENEFICIALLY 8 SHARED VOTING POWER 3,795,796
OWNED BY -------------------------------------------------------
EACH 9 SOLE DISPOSITIVE POWER 655,000
REPORTING -------------------------------------------------------
PERSON 10 SHARED DISPOSITIVE POWER
WITH
- --------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
4,450,796
- --------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES |_|
- --------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 12.3%
- --------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON CO
- --------------------------------------------------------------------------------
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3
1 NAME OF REPORTING PERSON
Ocho Acquisition Corporation
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
- --------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) |X|
(b) |_|
- --------------------------------------------------------------------------------
3 SEC USE ONLY
- --------------------------------------------------------------------------------
4 SOURCE OF FUNDS OO
- --------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) or 2(e) |_|
- --------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION State of Delaware
- --------------------------------------------------------------------------------
NUMBER OF 7 SOLE VOTING POWER
SHARES -------------------------------------------------------
BENEFICIALLY 8 SHARED VOTING POWER 3,795,796
OWNED BY -------------------------------------------------------
EACH 9 SOLE DISPOSITIVE POWER
REPORTING -------------------------------------------------------
PERSON 10 SHARED DISPOSITIVE POWER
WITH
- --------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
3,795,796
- --------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES |_|
- --------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 10.5%
- --------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON CO
- --------------------------------------------------------------------------------
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Item 1. Security and Issuer.
This Schedule 13D relates to the common stock, par value $.01
per share (the "Common Stock"), of Eastern Environmental Services, Inc. (the
"Issuer"). The Issuer is a Delaware corporation with its principal executive
offices located at 1000 Crawford Place, Mt. Laurel, New Jersey 08054.
Item 2. Identity and Background.
The names of the persons filing this statement are Waste
Management, Inc., a Delaware corporation ("Waste Management") and Ocho
Acquisition Corporation, a Delaware corporation and a wholly owned subsidiary of
Waste Management ("Merger Sub" and together with Waste Management, the "Filing
Persons"). The address of the principal business and principal office of Waste
Management and Merger Sub is 1001 Fannin, Suite 4000, Houston, Texas 77002.
The principal business of Waste Management is to provide waste
management services internationally. Merger Sub was incorporated solely for the
purpose of merging with and into the Issuer, and has no other business. Set
forth in Schedule A and Schedule B is the name, citizenship, business or
residence address and present principal occupation or employment, as well as the
name and address of any corporation or other organization in which such
occupation or employment is conducted, of each of the directors and executive
officers of Waste Management and Merger Sub, respectively, as of the date
hereof.
During the last five years, neither the Filing Persons, nor,
to the knowledge of the Filing Persons, any person named in either Schedule A or
Schedule B, has been convicted in a criminal proceeding (excluding traffic
violations or similar misdemeanors) or has been a party to a civil proceeding of
a judicial or administrative body of competent jurisdiction and as a result of
such proceeding was or is subject to a judgment, decree or final order enjoining
future violations of, or prohibiting or mandating activities subject to, federal
or state securities laws or finding any violation with respect to such laws.
During the last five years, neither the Filing Persons, nor,
to the knowledge of the Filing Persons, any person named in either Schedule A or
Schedule B, was a party to a civil proceeding of a judicial or administrative
body of competent jurisdiction and as a result of such proceeding was or is
subject to a judgment, decree or final order enjoining future violations of, or
prohibiting or mandating activities subject to, federal or state securities laws
or finding any violation with respect to such laws.
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Item 3. Source and Amount of Funds or Other Consideration.
This Statement relates to (i) a stockholders support
agreement (the "Support Agreement") among Waste Management, Merger Sub and each
stockholder of the Issuer who is a party to the Support Agreement (collectively,
the "Stockholders") and the associated proxy granted to Merger Sub by the
Stockholders as described in Item 6 below and (ii) 655,000 shares of Common
Stock beneficially owned by Waste Management that were or will be acquired by
Waste Management in a number of prior or pending transactions with the Issuer.
Item 4. Purpose of Transaction.
On August 16, 1998, Waste Management, Merger Sub and the
Issuer entered into an Agreement and Plan of Merger (the "Merger Agreement"),
which provides that Merger Sub will be merged with and into the Issuer (the
"Merger") and each share of Common Stock will be converted into the right to
receive, without interest, 0.6406 shares of common stock, par value $.01 per
share, of Waste Management ("Waste Management Common Stock"). Waste Management
requested the Stockholders to enter into the Support Agreement as an inducement
to Waste Management and the Merger Sub to enter into the Merger Agreement. The
Support Agreement is intended to provide greater certainty that Waste
Management's acquisition of the Issuer will be consummated.
If the Merger is consummated in accordance with the terms of
the Merger Agreement, (i) the directors and officers of Merger Sub immediately
prior to the effective time of the Merger will become the initial directors and
officers of the surviving corporation, respectively, (ii) the Certificate of
Incorporation of the Issuer shall be amended and restated to read as the
Certificate of Incorporation of Merger Sub as in effect immediately prior to the
effective time of the Merger, except that Article One, relating to the name of
the Issuer, shall remain unchanged and (iii) the By-laws of Merger Sub, as in
effect immediately prior to the effective time of the Merger, shall be the
By-laws of the surviving corporation. Additionally, the Common Stock will be
deregistered under the Securities Act of 1933 and delisted from The Nasdaq
National Market.
Other than as described above, the Filing Persons currently
have no plans or proposals which relate to, or may result in, any of the matters
listed in Items 4(a) - (j) of Schedule 13D (although the Filing Persons reserve
the right to develop such plans).
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6
Except as set forth above or in Item 5 below, Waste
Management has not formulated any plans or proposals which relate to or would
result in: (i) the acquisition by any person of additional securities of the
Issuer or the disposition of securities of the Issuer, (ii) an extraordinary
corporate transaction involving the Issuer or any of its subsidiaries, (iii) a
sale or transfer of a material amount of the assets of the Issuer or any of its
subsidiaries, (iv) any change in the present board of directors or management of
the Issuer, (v) any material change in the Issuer's capitalization or dividend
policy, (vi) any other material change in the Issuer's business or corporate
structure, (vii) any change in the Issuer's charter or bylaws or other
instrument corresponding thereto or other action which may impede the
acquisition of control of the Issuer by any person, (viii) causing a class of
the Issuer's securities to be deregistered or delisted, (ix) a class of equity
securities of the Issuer becoming eligible for termination of registration or
(x) any action similar to any of those enumerated above.
Item 5. Interest in Securities of the Issuer.
As a result of the Support Agreement, the Filing Persons may
be deemed to each be the beneficial owner of 3,795,796 shares of Common Stock
for purposes of Rule 13d-1(a) promulgated under the Securities Exchange Act of
1934, as amended, which represents approximately 10.5% of the shares of Common
Stock outstanding (based on the number of shares of Common Stock outstanding on
August 11, 1998).
As a result of a number of previous acquisitions and one
pending acquisition involving Waste Management and the Issuer in which Waste
Management acquired, or will acquire, shares of Common Stock, Waste Management
is or will be the beneficial owner of an additional 655,000 shares of Common
Stock, representing approximately 1.8% of the shares of Common Stock outstanding
(based on the number of shares of Common Stock outstanding on August 11, 1998).
To the knowledge of the Filing Persons, neither the Filing
Persons nor any other person referred to in Schedule A or Schedule B attached
hereto beneficially owns or has acquired or disposed of any shares of Common
Stock during the past 60 days.
<PAGE>
7
Item 6. Contracts, Arrangements, Understandings or Relationships with Respect
to Securities of the Issuer.
Pursuant to the Merger Agreement and subject to the terms and
conditions set forth therein (including approval by the holders of the Issuer's
outstanding shares of Common Stock and expiration or termination of the waiting
period under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as
amended), the Merger Sub will merge with and into the Issuer, with the Issuer
continuing as the surviving corporation, and each issued and outstanding share
of Common Stock, other than shares owned by Waste Management or the Issuer, will
be converted into the right to receive, without interest, 0.6406 shares of Waste
Management Common Stock.
Pursuant to the Support Agreement, each Stockholder has
appointed Merger Sub (or any nominee of Merger Sub) as his lawful attorney and
proxy in all matters relating to the consummation of the transactions
contemplated by the Merger Agreement. Such proxy gives Merger Sub the right to
vote each of the 3,795,796 shares (the "Shares") at every annual, special or
adjourned meeting of the stockholders of the Issuer (including the right to sign
his name (as stockholder) to any consent, certificate or other document relating
to the Issuer that may be permitted or required by applicable law), (i) in favor
of the adoption of the Merger Agreement and approval of the Merger and the other
transactions contemplated by the Merger Agreement, (ii) against any transaction
pursuant to a third party acquisition proposal or any other action or agreement
that would result in a breach of any covenant, representation or warranty or any
other obligation or agreement of the Issuer under the Merger Agreement or which
could result in any of the conditions to the Issuer's obligations under the
Merger Agreement not being fulfilled, and (iii) in favor of any other matter
relating to consummation of the transactions contemplated by the Merger
Agreement. Each Stockholder further agrees to cause the number of Shares over
which he has voting power to be voted in accordance with the foregoing.
The obligations of the Stockholders under the Support
Agreement terminate upon the earlier of (i) the effective time of the Merger or
(ii) 180 days after the termination of the Merger Agreement in the case of
termination that entitles Waste Management to a termination fee under the Merger
Agreement or on the date of termination in the case of termination for any other
reason.
The descriptions herein of the Merger Agreement and the
Support Agreement are qualified in their entirety by reference to such
agreements, copies of which are filed hereto as Exhibits 99.1 and 99.2
respectively, and which are specifically incorporated herein by reference in
their entirety.
Except as provided in the Merger Agreement and the Support
Agreement, to
<PAGE>
8
the best knowledge of the Filing Persons, there are no contracts, arrangements,
understandings or relationships (legal or otherwise) among the persons named in
Item 2 and between such persons and any person with respect to any securities of
the Issuer, including but not limited to transfer or voting of any of the
securities, finder's fees, joint ventures, loan or option arrangements, puts or
calls, guarantees of profits, division of profits or loss, or the giving or
withholding of proxies.
Item 7. Material to be Filed as Exhibits.
Exhibit Description
99.1. Agreement and Plan of Merger, dated as of August 16, 1998, among
Waste Management, Inc., Ocho Acquisition Corporation and Eastern
Environmental Services, Inc.
99.2. Support Agreement, dated as of August 16, 1998, among certain
stockholders of Eastern Environmental Services, Inc. listed as
parties thereto, Waste Management, Inc. and Ocho Acquisition
Corporation.
99.3. Joint Filing Agreement between Waste Management, Inc. and Ocho
Acquisition Corporation.
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9
Signature
After reasonable inquiry and to the best of my knowledge and
belief, I certify that the information set forth in this statement is true,
complete and correct.
Dated: August 26, 1998 WASTE MANAGEMENT, INC.
By /s/ Gregory T. Sangalis
-------------------------------------------
Name: Gregory T. Sangalis
Title: Senior Vice President,
General Counsel and Secretary
OCHO ACQUISITION CORPORATION
By /s/ Gregory T. Sangalis
-------------------------------------------
Name: Gregory T. Sangalis
Title: Senior Vice President
and Secretary
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10
EXHIBIT INDEX
Exhibit Description
99.1. Agreement and Plan of Merger, dated as of August 16, 1998,
among Waste Management, Inc., Ocho Acquisition Corporation
and Eastern Environmental Services, Inc.
99.2. Support Agreement, dated as of August 16, 1998, among
certain stockholders of Eastern Environmental Services, Inc.
listed as parties thereto, Waste Management, Inc. and Ocho
Acquisition Corporation.
99.3. Joint Filing Agreement between Waste Management, Inc. and
Ocho Acquisition Corporation.
<PAGE>
1
Schedule A
DIRECTORS OF WASTE MANAGEMENT, INC.
The name, present business address and present principal
occupation or employment of each director of Waste Management, Inc. are set
forth below. Each person listed below is a citizen of the United States of
America.
<TABLE>
<CAPTION>
Present Principal
Name Occuation/Employment Present Business Address
- ---- -------------------- ------------------------
<S> <C> <C>
H. Jesse Arnelle Of Counsel at Womble, Carlyle 400 Urbano Drive
Sandridge and Rice San Fransciso, CA 94127
Dr. Pastora San Juan Professor at the University of 2440 North Lake View
Cafferty Chicago Chicago, IL 60614
Ralph F. Cox Management Consultant RABAR Enterprises
4615 Post Oak Place, Suite
140
Houston, TX 77027
John E. Drury Chief Executive Officer of Waste Waste Management, Inc.
Management, Inc. 1001 Fannin, Suite 4000
Houston, TX 77002
Richard J. Chairman, President and Chief U.S. Filter
Heckmann Executive Officer of United States 40-004 Cook Street
Filter Corporation Palm Desert, CA 92211
Roderick M. Hills President of Hills Enterprises, Ltd. Roderick M. Hills
and a Partner of Hills & Hills 2440 North Lake View
Chicago, IL 60614
Richard D. Kinder Chairman and Chief Executive Kinder Morgan Energy
Officer of Kinder Morgan Energy Partners, L.P.
Partners, L.P. 1301 McKinney, Suite 3450
Houston, TX 77010
</TABLE>
<PAGE>
2
<TABLE>
<S> <C> <C>
Robert S. Miller Vice Chairman of Morrison 3003 Butterfield Road
Knudsen Corporation Oak Brook, IL 60523
Paul M. Montrone Chief Executive Officer and Liberty Lane
President of Fisher Scientific Hampton, NH 03842
International, Inc.
John C. Pope Chairman of the Board of 810 South Ridge Road
MotivePower Industries, Inc. Lake Forest, IL 60045
Rodney R. Proto President and Chief Operating Waste Management, Inc.
Officer of Waste Management, Inc. 1001 Fannin, Suite 4000
Houston, TX 77002
Steven G. Rothmeier Chairman and Chief Executive 332 Minnesota Street
Officer of Great Northern Capital Suite W2900
St. Paul, MN 55101
Ralph V. Whitworth Partner at Batchelder & Partners Relational Investors LLC
and Principal and Managing 4339 Lahoya Village Drive
Member of Relational Investors Suite 220
LLC San Diego, CA 92122
Jerome B. York Vice Chairman of Tracinda Tracinda Corporation
Corporation 4835 Koual Lane
Las Vegas, NV 89109
</TABLE>
<PAGE>
3
WASTE MANAGEMENT, INC. EXECUTIVE OFFICERS
The name and title of each executive officer of Waste
Management, Inc. are set forth below. The present business address of each
executive officer listed below is 1001 Fannin, Suite 4000, Houston, Texas 77002.
Each person listed below is a citizen of the United States of America.
Name: Title:
- ----- ------
John E. Drury Chief Executive Officer
Rodney R. Proto President & Chief Operating Officer
Earl E. DeFrates Executive Vice President & Chief Financial Officer
Donald R. Chappel Senior Vice President, Operations/Administration
Susan J. Piller Senior Vice President, Employee Relations
William A. Rothrock Senior Vice President, Business Development
Gregory T. Sangalis Senior Vice President, General Counsel and Secretary
Robert P. Damico Senior Vice President, MidWest Area
Miller J. Matthews, Jr. Senior Vice President, Southern Area
Douglas G. Sobey Senior Vice President, Western Area
David Sutherland-Yoest Senior Vice President, Atlantic Area
Charles A. Wilcox Senior Vice President, Eastern Area
Ronald H. Jones Vice President and Treasurer
Bruce E. Snyder Vice President and Chief Accounting Officer
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4
Schedule B
DIRECTORS OF OCHO ACQUISITION CORPORATION
The name, present business address and present principal
occupation or employment of each director of Ocho Acquisition Corporation are
set forth below. Each person listed below is a citizen of the United States of
America.
Present Business Present Principal
Name Address Occupation/Employment
- ---- ------- ---------------------
Gregory T. Sangalis 1001 Fannin, Suite 4000 General Counsel,
Houston, Texas 77002 Senior Vice President
and Secretary
of Waste Management, Inc.
OCHO ACQUISITION CORPORATION EXECUTIVE OFFICERS
The name and title of each executive officer of Ocho
Acquisition Corporation are set forth below. The present business address of
each executive officer listed below is 1001 Fannin, Suite 4000, Houston, Texas
77002 and each person listed below is a citizen of the United States of America.
Name and Title Title
- -------------- -----
John E. Drury President and Chief Executive Officer
Earl E. DeFrates Executive Vice President and Chief Financial Officer
Gregory T. Sangalis Senior Vice President and Secretary
Bruce E. Snyder Vice President, Chief Accounting Officer and
Assistant Secretary
Ronald H. Jones Vice President and Treasurer
Bryan J. Blankfield Vice President and Assistant Secretary
Jeffrey A. Draper Vice President and Assistant Treasurer
Exhibit 99.1
AGREEMENT AND PLAN OF MERGER
DATED AS OF AUGUST 16, 1998
BY AND AMONG
WASTE MANAGEMENT, INC.
OCHO ACQUISITION CORPORATION
AND
EASTERN ENVIRONMENTAL SERVICES, INC.
<PAGE>
i
TABLE OF CONTENTS
Page No.
--------
ARTICLE I
THE MERGER
Section 1.1 The Merger......................................................1
Section 1.2 Effective Time of the Merger....................................1
ARTICLE II
THE SURVIVING AND PARENT CORPORATIONS
Section 2.1 Certificate of Incorporation....................................2
Section 2.2 By-Laws.........................................................2
Section 2.3 Directors.......................................................2
Section 2.4 Officers........................................................2
ARTICLE III
CONVERSION OF SHARES
Section 3.1 Conversion of Company Shares in the Merger......................2
Section 3.2 Conversion of Subsidiary Shares.................................3
Section 3.3 Exchange of Certificates........................................3
Section 3.4 No Fractional Shares............................................5
Section 3.5 Closing.........................................................6
Section 3.6 Closing of the Company's Transfer Books.........................6
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF PARENT AND SUBSIDIARY
Section 4.1 Organization and Qualification..................................7
Section 4.2 Capitalization..................................................7
Section 4.3 Subsidiaries....................................................8
Section 4.4 Authority; Non-Contravention; Approvals.........................8
Section 4.5 Reports and Financial Statements...............................10
Section 4.6 Absence of Undisclosed Liabilities.............................11
Section 4.7 Absence of Certain Changes or Events...........................11
Section 4.8 Litigation.....................................................11
Section 4.9 Registration Statement and Proxy Statement.....................12
Section 4.10 Violation of Law..............................................12
<PAGE>
ii
Section 4.11 Reorganization and Pooling of Interests.......................13
Section 4.12 Brokers and Finders...........................................13
Section 4.13 Ownership of Company Common Stock.............................13
Section 4.14 Subsidiary....................................................13
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
Section 5.1 Organization and Qualification.................................14
Section 5.2 Capitalization.................................................14
Section 5.3 Subsidiaries...................................................15
Section 5.4 Authority; Non-Contravention; Approvals........................15
Section 5.5 Reports and Financial Statements...............................17
Section 5.6 Absence of Undisclosed Liabilities.............................17
Section 5.7 Absence of Certain Changes or Events...........................18
Section 5.8 Litigation.....................................................18
Section 5.9 Registration Statement and Proxy Statement.....................18
Section 5.10 No Violation of Law...........................................19
Section 5.11 Compliance with Agreements....................................19
Section 5.12 Taxes.........................................................20
Section 5.13 Employee Benefit Plans; ERISA.................................21
Section 5.14 Labor Controversies...........................................23
Section 5.15 Environmental Matters.........................................23
Section 5.16 Non-Competition Agreements....................................24
Section 5.17 Title to Assets...............................................25
Section 5.18 Reorganization and Pooling of Interests.......................25
Section 5.19 Company Stockholders' Approval................................25
Section 5.20 Brokers and Finders...........................................25
Section 5.21 Opinion of Financial Advisor..................................26
ARTICLE VI
CONDUCT OF BUSINESS PENDING THE MERGER
Section 6.1 Conduct of Business by the Company Pending the Merger..........26
Section 6.2 Conduct of Business by Parent and Subsidiary
Pending the Merger.............................................29
Section 6.3 Control of the Company's Operations............................30
Section 6.4 Control of Parent's Operations.................................30
Section 6.5 Acquisition Transactions.......................................30
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iii
ARTICLE VII
ADDITIONAL AGREEMENTS
Section 7.1 Access to Information..........................................31
Section 7.2 Registration Statement and Proxy Statement.....................32
Section 7.3 Stockholders' Approvals........................................33
Section 7.4 Compliance with the Securities Act.............................33
Section 7.5 Exchange Listing...............................................33
Section 7.6 Expenses and Fees..............................................33
Section 7.7 Agreement to Cooperate.........................................34
Section 7.8 Public Statements..............................................36
Section 7.9 Option Plans...................................................36
Section 7.10 Notification of Certain Matters...............................37
Section 7.11 Directors' and Officers' Indemnification......................37
Section 7.12 Corrections to the Proxy Statement/Prospectus and
Registration Statement........................................39
Section 7.13. Assumption of Registration Rights Agreements.................39
Section 7.14. Company Employees............................................39
ARTICLE VIII
CONDITIONS
Section 8.1 Conditions to Each Party's Obligation to Effect the Merger.....39
Section 8.2 Conditions to Obligation of the Company to Effect the Merger...41
Section 8.3 Conditions to Obligations of Parent and Subsidiary to
Effect the Merger..............................................41
ARTICLE IX
TERMINATION, AMENDMENT AND WAIVER
Section 9.1 Termination....................................................42
Section 9.2 Effect of Termination..........................................44
Section 9.3 Amendment......................................................44
Section 9.4 Waiver.........................................................44
ARTICLE X
GENERAL PROVISIONS
Section 10.1 Non-Survival of Representations and Warranties................45
Section 10.2 Notices.......................................................45
Section 10.3 Interpretation................................................46
<PAGE>
iv
Section 10.4 Miscellaneous.................................................46
Section 10.5 Counterparts..................................................46
Section 10.6 Parties in Interest...........................................46
NYDOCS02/338431 8
<PAGE>
v
GLOSSARY OF DEFINED TERMS
Term Page No.
- ---- --------
Acquisition Proposal........................................................31
Acquisition Transaction.....................................................31
Affiliate Agreement.........................................................33
Agreement....................................................................1
Antitrust Division..........................................................34
APB No. 16..................................................................27
Business Combination........................................................34
Closing......................................................................6
Closing Date.................................................................6
Code.........................................................................1
Company......................................................................1
Company Certificates.........................................................4
Company Common Stock.........................................................3
Company Disclosure Schedule.................................................14
Company Financial Statements................................................17
Company Options.............................................................36
Company Permits.............................................................19
Company Plans...............................................................21
Company Preferred Stock.....................................................14
Company Representatives.....................................................32
Company Required Statutory Approvals........................................17
Company SEC Reports.........................................................17
Company Stockholders' Approval..............................................33
DGCL.........................................................................1
Effective Time...............................................................1
Environmental Law...........................................................23
ERISA.......................................................................21
Excess Shares................................................................5
Exchange Act................................................................10
Exchange Agent...............................................................3
Exchange Ratio...............................................................3
Existing Credit Facilities..................................................27
FTC.........................................................................34
Hazardous Substance.........................................................24
HSR Act......................................................................9
indemnified Parties.........................................................37
indemnified Party...........................................................37
<PAGE>
vi
Merger.......................................................................1
Merger Filing................................................................1
NYSE.........................................................................5
Parent.......................................................................1
Parent Common Stock..........................................................3
Parent Financial Statements.................................................10
Parent Permits..............................................................13
Parent Preferred Stock.......................................................7
Parent Representatives......................................................31
Parent Required Statutory Approvals.........................................10
Parent SEC Reports..........................................................10
Pooling Transaction.........................................................13
Potential Acquirer..........................................................31
Proxy Statement.............................................................12
Proxy Statement/Prospectus..................................................12
Registration Statement......................................................12
SEC.........................................................................10
Securities Act..............................................................10
Subsidiary...................................................................1
Subsidiary Common Stock......................................................3
Superior Proposal...........................................................31
Surviving Corporation........................................................1
Tax Return..................................................................21
Taxes.......................................................................20
Termination Date............................................................43
<PAGE>
1
AGREEMENT AND PLAN OF MERGER
THIS AGREEMENT AND PLAN OF MERGER, dated as of August 16, 1998
(this "Agreement"), is made and entered into by and among Waste Management,
Inc., a Delaware corporation ("Parent"), Ocho Acquisition Corporation, a
Delaware corporation and a wholly owned subsidiary of Parent ("Subsidiary"), and
Eastern Environmental Services, Inc., a Delaware corporation (the "Company").
WITNESSETH:
WHEREAS, the Boards of Directors of Parent, Subsidiary and the
Company have approved the merger of Subsidiary with and into the Company on the
terms set forth in this Agreement (the "Merger");
WHEREAS, Parent, Subsidiary and the Company intend the Merger
to qualify as a tax-free reorganization under the provisions of Section 368 of
the Internal Revenue Code of 1986, as amended (the "Code"), and the regulations
thereunder and to be considered a pooling of interests for financial accounting
purposes; and
WHEREAS, certain officers of the Company owning stock of the
Company have entered into shareholder support agreements dated as of the date
hereof.
NOW, THEREFORE, in consideration of the premises and the
representations, warranties, covenants and agreements contained herein, the
parties hereto, intending to be legally bound, agree as follows:
ARTICLE I
THE MERGER
Section 1.1 The Merger. Upon the terms and subject to the
conditions of this Agreement, at the Effective Time (as defined in Section 1.2)
in accordance with the General Corporation Law of the State of Delaware (the
"DGCL"), Subsidiary shall be merged with and into the Company and the separate
existence of Subsidiary shall thereupon cease. The Company shall be the
surviving corporation in the Merger and is hereinafter sometimes referred to as
the "Surviving Corporation."
Section 1.2 Effective Time of the Merger. The Merger shall
become effective at such time (the "Effective Time") as shall be stated in a
certificate of merger, in a form mutually acceptable to Parent and the Company,
to be filed with the Secretary of State of the State of Delaware in accordance
with the DGCL (the "Merger Filing"). The Merger Filing shall be made
simultaneously with or as soon as practicable after the closing of the
transactions contemplated by this Agreement in accordance with Section 3.5. The
parties acknowledge that it is their mutual
<PAGE>
2
desire and intent to consummate the Merger as soon as practicable after the date
hereof. Accordingly, the parties shall, subject to the provisions hereof and to
the fiduciary duties of their respective boards of directors, use all reasonable
efforts to consummate, as soon as practicable, the transactions contemplated by
this Agreement in accordance with Section 3.5.
ARTICLE II
THE SURVIVING AND PARENT CORPORATIONS
Section 2.1 Certificate of Incorporation. The Certificate of
Incorporation of the Company except for Article One shall be amended as of the
Effective Time to be identical to the Certificate of Incorporation of
Subsidiary, as in effect immediately prior to the Effective Time, and shall be
the Certificate of Incorporation of the Surviving Corporation after the
Effective Time, and thereafter may be amended in accordance with its terms and
as provided in the DGCL, except that no amendment shall be made to, nor shall
any provision be included which is inconsistent with, Article Nine of the
Certificate of Incorporation of the Company.
Section 2.2 By-Laws. The By-laws of Subsidiary as in effect
immediately prior to the Effective Time shall be the By-laws of the Surviving
Corporation after the Effective Time and (subject to Section 7.11 hereof)
thereafter may be amended in accordance with their terms and as provided by the
Certificate of Incorporation of the Surviving Corporation and the DGCL.
Section 2.3 Directors. The directors of Subsidiary in office
immediately prior to the Effective Time shall be the directors of the Surviving
Corporation after the Effective Time, and such directors shall serve in
accordance with the By-laws of the Surviving Corporation until their respective
successors are duly elected or appointed and qualified.
Section 2.4 Officers. The officers of Subsidiary in office
immediately prior to the Effective Time shall be the officers of the Surviving
Corporation after the Effective Time, and such officers shall serve in
accordance with the By-laws of the Surviving Corporation until their respective
successors are duly elected or appointed and qualified.
ARTICLE III
CONVERSION OF SHARES
Section 3.1 Conversion of Company Shares in the Merger. At the
Effective Time, by virtue of the Merger and without any action on the part of
any holder of any capital stock of Parent or the Company:
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(a) each share of the common stock, par value $.01 per share,
of the Company (the "Company Common Stock") shall, subject to Sections
3.3 and 3.4, be converted into the right to receive, without interest,
0.6406 (the "Exchange Ratio") shares of the common stock, par value
$.01 per share, of Parent ("Parent Common Stock");
(b) each share of capital stock of the Company, if any, owned
by Parent or any subsidiary of Parent or held in treasury by the
Company or any subsidiary of the Company immediately prior to the
Effective Time shall be canceled and no consideration shall be paid in
exchange therefor and shall cease to exist from and after the Effective
Time; and
(c) each unexpired warrant to purchase Company Common Stock
that is outstanding at the Effective Time, whether or not exercisable,
shall automatically and without any action on the part of the holder
thereof be converted into a warrant to purchase a number of shares of
Parent Common Stock equal to the number of shares of Company Common
Stock that could be purchased under such warrant multiplied by the
Exchange Ratio, at a price per share of Parent Common Stock equal to
the per share exercise price of such warrant divided by the Exchange
Ratio.
Section 3.2 Conversion of Subsidiary Shares. At the Effective
Time, by virtue of the Merger and without any action on the part of Parent as
the sole stockholder of Subsidiary, each issued and outstanding share of common
stock, par value $.01 per share, of Subsidiary ("Subsidiary Common Stock") shall
be converted into one share of common stock, par value $.01 per share, of the
Surviving Corporation.
Section 3.3 Exchange of Certificates. (a) From and after the
Effective Time, each holder of an outstanding certificate which immediately
prior to the Effective Time represented shares of Company Common Stock shall be
entitled to receive in exchange therefor, upon surrender thereof to an exchange
agent reasonably satisfactory to Parent and the Company (the "Exchange Agent"),
a certificate or certificates representing the number of whole shares of Parent
Common Stock to which such holder is entitled pursuant to Section 3.1(a).
Notwithstanding any other provision of this Agreement, (i) until holders or
transferees of certificates theretofore representing shares of Company Common
Stock have surrendered them for exchange as provided herein, no dividends or
other distributions shall be paid with respect to any shares represented by such
certificates and no payment for fractional shares shall be made and (ii) without
regard to when such certificates representing shares of Company Common Stock are
surrendered for exchange as provided herein, no interest shall be paid on any
dividends or other distributions or any payment for fractional shares. Upon
surrender of a certificate which immediately prior to the Effective Time
represented shares of Company Common Stock, there shall be paid to the holder of
such certificate the amount of any dividends or other distributions which
theretofore became payable, but which were not paid by reason of the foregoing,
with respect to the number of whole shares of Parent Common Stock represented by
the certificate or certificates issued upon such surrender.
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(b) If any certificate for shares of Parent Common Stock is to
be issued in a name other than that in which the certificate for shares of
Company Common Stock surrendered in exchange therefor is registered, it shall be
a condition of such exchange that the person requesting such exchange shall pay
any applicable transfer or other taxes required by reason of such issuance.
(c) Within five days after the Effective Time, Parent shall
make available to the Exchange Agent the certificates representing shares of
Parent Common Stock required to effect the exchanges referred to in paragraph
(a) above and cash for payment of any fractional shares referred to in Section
3.4.
(d) Within five days after the Effective Time, Parent shall
cause the Exchange Agent to mail to each holder of record of a certificate or
certificates that immediately prior to the Effective Time represented
outstanding shares of Company Common Stock (the "Company Certificates") (i) a
letter of transmittal satisfactory to the Company and approved by it prior to
Closing (which shall specify that delivery shall be effected, and risk of loss
and title to the Company Certificates shall pass, only upon actual delivery of
the Company Certificates to the Exchange Agent) and (ii) instructions for use in
effecting the surrender of the Company Certificates in exchange for certificates
representing shares of Parent Common Stock. Upon surrender of Company
Certificates for cancellation to the Exchange Agent, together with a duly
executed letter of transmittal and such other documents as the Exchange Agent
shall reasonably require, the holder of such Company Certificates shall be
entitled to receive in exchange therefor a certificate representing that number
of whole shares of Parent Common Stock into which the shares of Company Common
Stock theretofore represented by the Company Certificates so surrendered shall
have been converted pursuant to the provisions of Section 3.1(a), and the
Company Certificates so surrendered shall be canceled. Notwithstanding the
foregoing, neither the Exchange Agent nor any party hereto shall be liable to a
holder of shares of Company Common Stock for any shares of Parent Common Stock
or dividends or distributions thereon delivered to a public official pursuant to
applicable abandoned property, escheat or similar laws.
(e) Promptly following the date which is nine months after the
Effective Time, the Exchange Agent shall deliver to Parent all cash,
certificates (including any Parent Common Stock) and other documents in its
possession relating to the transactions described in this Agreement, and the
Exchange Agent's duties shall terminate. Thereafter, each holder of a Company
Certificate may surrender such Company Certificate to the Surviving Corporation
and (subject to applicable abandoned property, escheat and similar laws) receive
in exchange therefor the Parent Common Stock, without any interest thereon.
Notwithstanding the foregoing, none of the Exchange Agent, Parent, Subsidiary,
the Company or the Surviving Corporation shall be liable to a holder of shares
of Company Common Stock for any shares of Parent Common Stock delivered to a
public official pursuant to applicable abandoned property, escheat or similar
laws.
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5
(f) In the event any Company Certificate shall have been lost,
stolen or destroyed, upon the making of an affidavit of that fact by the person
claiming such Company Certificate to be lost, stolen or destroyed, the Surviving
Corporation shall issue in exchange for such lost, stolen or destroyed Company
Certificate the Parent Common Stock deliverable in respect thereof determined in
accordance with this Article III. When authorizing such issuance in exchange
therefor, the Board of Directors of the Surviving Corporation may, in its
discretion and as a condition precedent to the issuance thereof, require the
owner of such lost, stolen or destroyed Company Certificate to give the
Surviving Corporation such indemnity as it may reasonably direct as protection
against any claim that may be made against the Surviving Corporation with
respect to the Company Certificate alleged to have been lost, stolen or
destroyed.
Section 3.4 No Fractional Shares. (a) No certificates or scrip
representing fractional shares of Parent Common Stock shall be issued upon the
surrender for exchange of Company Certificates, no dividend or distribution with
respect to Parent Common Stock shall be payable on or with respect to any
fractional share and such fractional share interests will not entitle the owner
thereof to any rights of a stockholder of Parent.
(b) As promptly as practicable following the Effective Time,
the Exchange Agent shall determine the excess of (x) the number of full shares
of Parent Common Stock delivered to the Exchange Agent by Parent over (y) the
aggregate number of full shares of Parent Common Stock to be distributed to
holders of Company Common Stock (such excess being herein called the "Excess
Shares"). As soon after the Effective Time as practicable, the Exchange Agent,
as agent for such holders of Parent Common Stock, shall sell the Excess Shares
at then prevailing prices on the New York Stock Exchange, Inc. (the "NYSE"), all
in the manner provided in paragraph (c) of this Section 3.4.
(c) The sale of the Excess Shares by the Exchange 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 Exchange Agent shall
use all reasonable efforts to complete the sale of the Excess Shares as promptly
following the Effective Time as, in the Exchange Agent's reasonable judgment, is
practicable consistent with obtaining the best execution of such sales in light
of prevailing market conditions. Until the net proceeds of any such sale or
sales have been distributed to such holders of Company Common Stock, the
Exchange Agent will hold such proceeds in trust for such holders of Company
Common Stock. Parent shall pay all commissions, transfer taxes and other
out-of-pocket transaction costs of the Exchange Agent incurred in connection
with such sale or sales of Excess Shares. In addition, Parent shall pay the
Exchange Agent's compensation and expenses in connection with such sale or
sales. The Exchange Agent shall determine the portion of such net proceeds to
which each holder of Company Common Stock shall be entitled, if any, by
multiplying the amount of the aggregate net proceeds by a fraction the numerator
of which is the amount of the fractional
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6
share interest to which such holder of Company Common Stock is entitled (after
taking into account all shares of Company Common Stock then held by such holder)
and the denominator of which is the aggregate amount of fractional share
interests to which all holders of Certificates representing Company Common Stock
are entitled.
(d) Notwithstanding the provisions of this Section 3.4, Parent
may elect, at its option exercised prior to the Effective Time and in lieu of
the issuance and sale of Excess Shares and the making of the payments
contemplated in such subsections, to pay to the Exchange Agent an amount in cash
sufficient for the Exchange Agent to pay each holder of Company Common Stock an
amount in cash equal to the product obtained by multiplying (x) the fractional
share interest to which such holder would otherwise be entitled (after taking
into account all shares of Company Common Stock held at the Effective Time by
such holder) by (y) the closing price for a share of Parent Common Stock on the
NYSE on the first business day immediately following the Effective Time and, in
such case, all references herein to the cash proceeds of the sale of the Excess
Shares and similar references shall be deemed to mean and refer to the payments
calculated as set forth in this Section 3.4(d)).
(e) As soon as practicable after the determination of the
amount of cash, if any, to be paid to holders of Company Common Stock with
respect to any fractional share interests, the Exchange Agent shall promptly pay
such amounts to such holders of Company Common Stock.
Section 3.5 Closing. The closing (the "Closing") of the
transactions contemplated by this Agreement shall take place at a location
mutually agreeable to Parent and the Company as promptly as practicable (but in
any event within five business days) following the date on which the last of the
conditions set forth in Article VIII is fulfilled or waived, or at such other
time and place as Parent and the Company shall agree. The date on which the
Closing occurs is referred to in this Agreement as the "Closing Date."
Section 3.6 Closing of the Company's Transfer Books. At and
after the Effective Time, holders of Company Certificates shall cease to have
any rights as stockholders of the Company, except for the right to receive
shares of Parent Common Stock pursuant to Section 3.1 and the right to receive
cash for payment of fractional shares pursuant to Section 3.4. At the Effective
Time, the stock transfer books of the Company shall be closed and no transfer of
shares of Company Common Stock which were outstanding immediately prior to the
Effective Time shall thereafter be made. If, after the Effective Time, subject
to the terms and conditions of this Agreement, Company Certificates formerly
representing shares of Company Common Stock are presented to the Surviving
Corporation, they shall be canceled and exchanged for shares of Parent Common
Stock in accordance with this Article III.
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7
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF PARENT AND SUBSIDIARY
Parent and Subsidiary each represent and warrant to the
Company that:
Section 4.1 Organization and Qualification. Each of Parent and
Subsidiary is a corporation duly organized, validly existing and in good
standing under the laws of the state of its incorporation and has the requisite
power and authority to own, lease and operate its assets and properties and to
carry on its business as it is now being conducted. Each of Parent and
Subsidiary is qualified to do business and is in good standing in each
jurisdiction in which the properties owned, leased or operated by it or the
nature of the business conducted by it makes such qualification necessary,
except where the failure to be so qualified and in good standing will not, when
taken together with all other such failures, have a material adverse effect on
the business, operations, properties, assets, condition (financial or other) or
results of operations of Parent and its subsidiaries, taken as a whole. True,
accurate and complete copies of each of Parent's and Subsidiary's charters and
By-laws, in each case as in effect on the date hereof, including all amendments
thereto, have heretofore been delivered to the Company.
Section 4.2 Capitalization. (a) As of August 10, 1998, the
authorized capital stock of Parent consisted of 1,500,000,000 shares of Parent
Common Stock and 10,000,000 shares of preferred stock, par value $.01 per share
("Parent Preferred Stock"). As of August 10, 1998, (i) 579,687,096 shares of
Parent Common Stock were issued and outstanding, all of which were validly
issued and are fully paid, nonassessable and free of preemptive rights, (ii) no
shares of Parent Preferred Stock were issued and outstanding, (iii) 23,485
shares of Parent Common Stock and no shares of Parent Preferred Stock were held
in the treasury of Parent, (iv) 37,600,799 shares of Parent Common Stock were
reserved for issuance upon exercise of outstanding options and warrants to
purchase Parent Common Stock and (v) 31,552,845 shares of Parent Common Stock
were reserved for issuance upon conversion of outstanding convertible debentures
and outstanding convertible notes. Assuming the conversion of all outstanding
convertible debentures and outstanding convertible notes of Parent and the
exercise of all outstanding options, warrants and rights to purchase Parent
Common Stock, as of August 10, 1998, there would be 648,840,740 shares of Parent
Common Stock issued and outstanding. In addition, as of the date hereof, no more
than 12,373,067 shares of Parent Common Stock were reserved for issuance in
connection with pending acquisitions.
(b) The authorized capital stock of Subsidiary consists of
1,000 shares of Subsidiary Common Stock, of which 100 shares are issued and
outstanding, which shares are owned beneficially and of record by Parent.
(c) Except as disclosed in the Parent SEC Reports (as defined
in Section 4.5) or in Section 4.2(a) or as otherwise contemplated by this
Agreement, as of the date hereof, there
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8
are no outstanding subscriptions, options, calls, contracts, commitments,
understandings, restrictions, arrangements, rights or warrants, including any
right of conversion or exchange under any outstanding security, instrument or
other agreement and also including any rights plan or other anti-takeover
agreement, obligating Parent or any subsidiary of Parent to issue, deliver or
sell or repurchase or redeem, or cause to be issued, delivered or sold,
additional shares of the capital stock of Parent or obligating Parent or any
subsidiary of Parent to grant, extend or enter into any such agreement or
commitment. Except as otherwise disclosed in the Parent SEC Reports, there are
no voting trusts, proxies or other agreements or understandings to which Parent
or any subsidiary of Parent is a party or is bound with respect to the voting of
any shares of capital stock of Parent, other than voting agreements executed in
connection with this Agreement. The shares of Parent Common Stock issued to
stockholders of the Company in the Merger will be at the Effective Time duly
authorized, validly issued, fully paid and nonassessable, free of preemptive
rights and will be issued in compliance with all applicable securities and other
laws.
Section 4.3 Subsidiaries. Each direct and indirect corporate
subsidiary of Parent is duly organized, validly existing and in good standing
under the laws of its jurisdiction of incorporation and has the requisite power
and authority to own, lease and operate its assets and properties and to carry
on its business as it is now being conducted and each subsidiary of Parent is
qualified to do business, and is in good standing, in each jurisdiction in which
the properties owned, leased or operated by it or the nature of the business
conducted by it makes such qualification necessary; except in all cases where
the failure to be so qualified and in good standing would not, when taken
together with all such other failures, have a material adverse effect on the
business, operations, properties, assets, condition (financial or other) or
results of operations of Parent and its subsidiaries, taken as a whole. All of
the outstanding shares of capital stock of each corporate subsidiary of Parent
are validly issued, fully paid, nonassessable and free of preemptive rights, and
are owned directly or indirectly by Parent, free and clear of any liens, claims,
encumbrances, security interests, equities and options of any nature whatsoever,
except that such shares are pledged to secure Parent's credit facilities. There
are no subscriptions, options, warrants, rights, calls, contracts, voting
trusts, proxies or other commitments, understandings, restrictions or
arrangements relating to the issuance, sale, voting, transfer, ownership or
other rights with respect to any shares of capital stock of or interest in any
subsidiary of Parent, including any right of conversion or exchange under any
outstanding security, instrument or agreement. As used in this Agreement, the
term "subsidiary" shall mean, when used with reference to any person or entity,
any corporation, partnership, joint venture or other entity of which such person
or entity (either acting alone or together with its other subsidiaries) owns,
directly or indirectly, 50% or more of the stock or other voting interests, the
holders of which are entitled to vote for the election of a majority of the
board of directors or any similar governing body of such corporation,
partnership, joint venture or other entity.
Section 4.4 Authority; Non-Contravention; Approvals. (a)
Parent and Subsidiary each have full corporate power and authority to enter into
this Agreement and, subject to the
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9
Parent Required Statutory Approvals (as defined in Section 4.4(c)), to
consummate the transactions contemplated hereby. This Agreement has been
approved by the Boards of Directors of Parent and Subsidiary and the sole
stockholder of Subsidiary, and no other corporate proceedings on the part of
Parent or Subsidiary are necessary to authorize the execution and delivery of
this Agreement or, the consummation by Parent and Subsidiary of the transactions
contemplated hereby. This Agreement has been duly executed and delivered by each
of Parent and Subsidiary, and, assuming the due authorization, execution and
delivery hereof by the Company, constitutes a valid and legally binding
agreement of each of Parent and Subsidiary enforceable against each of them in
accordance with its terms, except that such enforcement may be subject to (i)
bankruptcy, insolvency, reorganization, moratorium or other similar laws
affecting or relating to enforcement of creditors' rights generally and (ii)
general equitable principles.
(b) The execution and delivery of this Agreement by each of
Parent and Subsidiary do not violate, conflict with or result in a breach of any
provision of, or constitute a default (or an event which, with notice or lapse
of time or both, would constitute a default) under, or result in the termination
of, or accelerate the performance required by, or result in a right of
termination or acceleration under, or result in the creation of any lien,
security interest, charge or encumbrance upon any of the properties or assets of
Parent or any of its subsidiaries under any of the terms, conditions or
provisions of (i) the respective charters or by-laws of Parent or any of its
subsidiaries, (ii) any statute, law, ordinance, rule, regulation, judgment,
decree, order, injunction, writ, permit or license of any court or governmental
authority applicable to Parent or any of its subsidiaries or any of their
respective properties or assets or (iii) any note, bond, mortgage, indenture,
deed of trust, license, franchise, permit, concession, contract, lease or other
instrument, obligation or agreement of any kind to which Parent or any of its
subsidiaries is now a party or by which Parent or any of its subsidiaries or any
of their respective properties or assets may be bound or affected. The
consummation by Parent and Subsidiary of the transactions contemplated hereby
will not result in any violation, conflict, breach, termination, acceleration or
creation of liens under any of the terms, conditions or provisions described in
clauses (i) through (iii) of the preceding sentence, subject (x) in the case of
the terms, conditions or provisions described in clause (ii) above, to obtaining
(prior to the Effective Time) the Parent Required Statutory Approvals. Excluded
from the foregoing sentences of this paragraph (b), insofar as they apply to the
terms, conditions or provisions described in clauses (ii) and (iii) of the first
sentence of this paragraph (b) (and whether resulting from such execution and
delivery or consummation), are such violations, conflicts, breaches, defaults,
terminations, accelerations or creations of liens, security interests, charges
or encumbrances that would not, in the aggregate, have a material adverse effect
on the business, operations, properties, assets, condition (financial or other)
or results of operations of Parent and its subsidiaries, taken as a whole.
(c) Except for (i) the filings by Parent required by the
Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended (the "HSR
Act"), (ii) the filing of the Registration Statement and Proxy Statement/
Prospectus (as such terms are defined in Section
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10
4.9) with the Securities and Exchange Commission (the "SEC") pursuant to the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the
Securities Act of 1933, as amended (the "Securities Act"), and the declaration
of the effectiveness thereof by the SEC and filings with various state blue sky
authorities, (iii) the making of the Merger Filing with the Secretary of State
of the State of Delaware in connection with the Merger, and (iv) any required
filings with or approvals from the NYSE, applicable state environmental
authorities, public service commissions and public utility commissions (the
filings and approvals referred to in clauses (i) through (iv) are collectively
referred to as the "Parent Required Statutory Approvals"), no declaration,
filing or registration with, or notice to, or authorization, consent or approval
of, any governmental or regulatory body or authority is necessary for the
execution and delivery of this Agreement by Parent or Subsidiary or the
consummation by Parent or Subsidiary of the transactions contemplated hereby,
other than such declarations, filings, registrations, notices, authorizations,
consents or approvals which, if not made or obtained, as the case may be, would
not, in the aggregate, have a material adverse effect on the business,
operations, properties, assets, condition (financial or other) or results of
operations of Parent and its subsidiaries, taken as a whole.
Section 4.5 Reports and Financial Statements. Since January 1,
1995, Parent has filed with the SEC all forms, statements, reports and documents
(including all exhibits, post-effective amendments and supplements thereto)
required to be filed by it under each of the Securities Act, the Exchange Act
and the respective rules and regulations thereunder, all of which, as amended if
applicable, complied when filed (or, in the case of filing under the Securities
Act, at the time of effectiveness) in all material respects with all applicable
requirements of the appropriate act and the rules and regulations thereunder.
Parent has previously delivered or made available to the Company copies
(including all exhibits, post-effective amendments and supplements thereto) of
its (a) Annual Reports on Form 10-K for the fiscal year ended December 31, 1997
and for the immediately preceding fiscal year, as filed with the SEC, (b) proxy
and information statements relating to (i) all meetings of its stockholders
(whether annual or special) and (ii) actions by written consent in lieu of a
stockholders' meeting from January 1, 1996, until the date hereof, and (c) all
other reports, including quarterly reports, and registration statements filed by
Parent with the SEC since January 1, 1996 (other than registration statements
filed on Form S-8) (the documents referred to in clauses (a), (b) and (c) filed
prior to the date hereof are collectively referred to as the "Parent SEC
Reports"). As of their respective dates (or, in the case of filing under the
Securities Act, at the time of effectiveness), the Parent SEC Reports did not
contain any untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein, in
the light of the circumstances under which they were made, not misleading. The
audited consolidated financial statements of Parent included in the Parent's
Annual Report on Form 10-K for the year ended December 31, 1997 and the
unaudited consolidated interim financial statements included in Parent's
Quarterly Report on Form 10-Q for the quarter ending June 30, 1998
(collectively, the "Parent Financial Statements") have been prepared in
accordance with generally accepted accounting principles applied on a consistent
basis (except as may be indicated therein or in the notes thereto) and fairly
present the
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11
financial position of Parent and its subsidiaries as of the dates thereof and
the results of their operations and changes in financial position for the
periods then ended (subject, in the case of unaudited interim financial
statements to normal year-end adjustments, none of which, individually or in the
aggregate, would have a material adverse effect on the business, operations,
properties, assets, condition (financial or other) or results of operations of
Parent and its subsidiaries, taken as a whole).
Section 4.6 Absence of Undisclosed Liabilities. Except as
disclosed in the Parent SEC Reports or as heretofore disclosed to the Company in
writing with respect to acquisitions or potential transactions or commitments,
neither Parent nor any of its subsidiaries had at December 31, 1997, or has
incurred since that date and as of the date hereof, any liabilities or
obligations (whether absolute, accrued, contingent or otherwise) of any nature,
except: (a) liabilities, obligations or contingencies (i) which are accrued or
reserved against in the Parent Financial Statements or reflected in the notes
thereto or (ii) which were incurred after December 31, 1997, and were incurred
in the ordinary course of business and consistent with past practices; (b)
liabilities, obligations or contingencies which (i) would not, in the aggregate,
have a material adverse effect on the business, operations, properties, assets,
condition (financial or other) or results of operations of Parent and its
subsidiaries, taken as a whole or (ii) have been discharged or paid in full
prior to the date hereof; and (c) liabilities and obligations which are of a
nature not required to be reflected in the consolidated financial statements of
Parent and its subsidiaries prepared in accordance with generally accepted
accounting principles consistently applied and which were incurred in the
ordinary course of business.
Section 4.7 Absence of Certain Changes or Events. Since the
date of the most recent Parent SEC Report that contains consolidated financial
statements of Parent, there has not been any material adverse change in the
business, operations, properties, assets, liabilities, condition (financial or
other) or results of operations of Parent and its subsidiaries, taken as a
whole, except for changes that affect the industries in which Parent and its
subsidiaries operate generally.
Section 4.8 Litigation. Except as disclosed in the Parent SEC
Reports, there are no claims, suits, actions or proceedings pending or, to the
knowledge of Parent, threatened against, relating to or affecting Parent or any
of its subsidiaries or any of their respective directors or officers, before any
court, governmental department, commission, agency, instrumentality or
authority, or any arbitrator that seek to restrain or enjoin the consummation of
the Merger or which if adversely determined would reasonably be expected, either
alone or in the aggregate with all such claims, actions or proceedings, to
materially and adversely affect the business, operations, properties, assets,
condition (financial or other) or results of operations of Parent and its
subsidiaries, taken as a whole. Except as set forth in the Parent SEC Reports,
neither Parent nor any of its subsidiaries is subject to any judgment, decree,
injunction, rule or order of any court, governmental department, commission,
agency, instrumentality or authority or any arbitrator which prohibits or
restricts the consummation of the transactions contemplated hereby or would
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have any material adverse effect on the business, operations, properties,
assets, condition (financial or other) or results of operations of Parent and
its subsidiaries, taken as a whole.
Section 4.9 Registration Statement and Proxy Statement. None
of the information to be supplied by Parent or its subsidiaries for inclusion in
(a) the Registration Statement on Form S-4, as amended or supplemented from time
to time, to be filed under the Securities Act with the SEC by Parent in
connection with the Merger for the purpose of registering the shares of Parent
Common Stock to be issued in the Merger (such registration statement, together
with any amendments thereof, being the "Registration Statement") or (b) the
proxy statement, as amended or supplemented from time to time, to be distributed
in connection with the Company's meeting of stockholders to vote upon this
Agreement and the transactions contemplated hereby (the "Proxy Statement" and,
together with the prospectus included in the Registration Statement, the "Proxy
Statement/Prospectus") will, in the case of the Proxy Statement or any
amendments thereof or supplements thereto, at the time of the mailing of the
Proxy Statement and any amendments or supplements thereto, and at the time of
the meetings of stockholders of the Company to be held in connection with the
transactions contemplated by this Agreement, or, in the case of the Registration
Statement, as amended or supplemented, at the time it becomes effective and at
the time of such meetings of the stockholders of the Company and Parent, 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, as of its mailing date, comply
as to form in all material respects with all applicable laws, including the
provisions of the Securities Act and the Exchange Act and the rules and
regulations promulgated thereunder, except that no representation is made by
Parent or Subsidiary with respect to information supplied by the Company or the
stockholders of the Company for inclusion therein.
Section 4.10 Violation of Law. Except as disclosed in the
Parent SEC Reports, neither Parent nor any of its subsidiaries is or at any time
since December 31, 1997, has been in violation of, or has been given notice or
been charged with any violation of, any law, statute, order, rule, regulation,
ordinance, or judgment (including, without limitation, any applicable
environmental law, ordinance or regulation) of any governmental or regulatory
body or authority, except for violations which, in the aggregate, could not
reasonably be expected to have a material adverse effect on the business,
operations, properties, assets, condition (financial or other) or results of
operations of Parent and its subsidiaries, taken as a whole. Except as disclosed
in the Parent SEC Reports, as of the date of this Agreement, to the knowledge of
Parent, no investigation or review by any governmental or regulatory body or
authority is pending or threatened, nor has any governmental or regulatory body
or authority indicated an intention to conduct the same, other than, in each
case, those the outcome of which, as far as reasonably can be foreseen, will not
have a material adverse effect on the business, operations, properties, assets,
condition (financial or other) or results of operations of Parent and its
subsidiaries, taken as a whole. Parent and its subsidiaries have all permits,
licenses, franchises, variances, exemptions,
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13
orders and other governmental authorizations, consents and approvals necessary
to conduct their businesses as presently conducted (collectively, the "Parent
Permits"), except for permits, licenses, franchises, variances, exemptions,
orders, authorizations, consents and approvals the absence of which, alone or in
the aggregate, would not have a material adverse effect on the business,
operations, properties, assets, condition (financial or other) or results of
operations of Parent and its subsidiaries, taken as a whole. Parent and its
subsidiaries are not in violation of the terms of any Parent Permit, except for
delays in filing reports or violations which, alone or in the aggregate, would
not have a material adverse effect on the business, operations, properties,
assets, condition (financial or other) or results of operations of Parent and
its subsidiaries, taken as a whole.
Section 4.11 Reorganization and Pooling of Interests. To the
knowledge of Parent, none of the Parent, Subsidiary or any of their affiliates
has taken or agreed or intends to take any action or has any knowledge of any
fact or circumstance that would prevent the Merger from (a) constituting a
reorganization within the meaning of Section 368(a) of the Code or (b) being
treated for financial accounting purposes as a "pooling of interests" in
accordance with generally accepted accounting principles and the rules,
regulations and interpretations of the SEC (a "Pooling Transaction"). As of the
date hereof, other than directors and officers of Parent, to the knowledge of
Parent, there are no "affiliates" of Parent, as that term is used in paragraphs
(c) and (d) of Rule 145 under the Securities Act.
Section 4.12 Brokers and Finders. Except for the fees and
expenses payable to Donaldson, Lufkin & Jenrette Securities Corporation, which
fees are reflected in its agreement with Parent, Parent has not entered into any
contract, arrangement or understanding with any person or firm which may result
in the obligation of Parent to pay any finder's fees, brokerage or agent
commissions or other like payments in connection with the transactions
contemplated hereby. Except for the fees and expenses paid or payable to
Donaldson, Lufkin & Jenrette Securities Corporation, there is no claim for
payment by Parent of any investment banking fees, finder's fees, brokerage or
agent commissions or other like payments in connection with the negotiations
leading to this Agreement or the consummation of the transactions contemplated
hereby.
Section 4.13 Ownership of Company Common Stock. Parent and its
subsidiaries beneficially own an aggregate of 655,000 shares of Company Common
Stock as of the date hereof.
Section 4.14 Subsidiary. Subsidiary was formed solely for the
purposes of engaging in the transactions contemplated hereby, and has engaged in
no other business activities and has conducted its operations only as
contemplated hereby.
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14
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company represents and warrants to Parent and Subsidiary
that, except as set forth in the disclosure schedule dated as of the date hereof
and signed by an authorized officer of the Company (the "Company Disclosure
Schedule"), it being agreed that disclosure of any item on the Company
Disclosure Schedule shall be deemed disclosure with respect to all Sections of
this Agreement if the relevance of such item is apparent from the face of the
Company Disclosure Schedule.
Section 5.1 Organization and Qualification. The Company is a
corporation duly organized, validly existing and in good standing under the laws
of the State of Delaware and has the requisite corporate power and authority to
own, lease and operate its assets and properties and to carry on its business as
it is now being conducted. The Company is qualified to do business and is in
good standing in each jurisdiction in which the properties owned, leased or
operated by it or the nature of the business conducted by it makes such
qualification necessary, except where the failure to be so qualified and in good
standing will not, when taken together with all other such failures, have a
material adverse effect on the business, operations, properties, assets,
condition (financial or other) or results of operations of the Company and its
subsidiaries, taken as a whole. True, accurate and complete copies of the
Company's Certificate of Incorporation and By-laws, in each case as in effect on
the date hereof, including all amendments thereto, have heretofore been
delivered to Parent.
Section 5.2 Capitalization. (a) The authorized capital stock
of the Company consists of 150,000,000 shares of Company Common Stock and
50,000,000 shares of preferred stock, par value $.01 per share ("Company
Preferred Stock"). As of August 11, 1998, (i) 36,129,103 shares of Company
Common Stock were issued and outstanding, all of which were validly issued and
are fully paid, nonassessable and free of preemptive rights, and no shares of
Company Preferred Stock were issued and outstanding, (ii) 39,100 shares of
Company Common Stock and no shares of Company Preferred Stock were held in the
treasury of the Company, and (iii) 3,889,846 shares of Company Common Stock were
reserved for issuance upon exercise of warrants and options issued and
outstanding pursuant to the Company's 1997 Stock Option Plan, 1996 Stock Option
Plan and 1991 Stock Option Plan. Assuming the exercise of all outstanding
options, rights and warrants to purchase Company Common Stock, as of August 11,
1998 there would be 40,018,949 shares of Company Common Stock issued and
outstanding.
(b) Except as disclosed in Section 5.2(b) of the Company
Disclosure Schedule, the Company SEC Reports (as defined in Section 5.5) or in
Section 5.2(a), as of the date hereof there were no outstanding subscriptions,
options, calls, contracts, commitments, understandings, restrictions,
arrangements, rights or warrants, including any right of conversion or exchange
under any outstanding security, instrument or other agreement and also including
any rights plan or
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15
other anti-takeover agreement, obligating the Company or any subsidiary of the
Company to issue, deliver or sell or repurchase or redeem, or cause to be
issued, delivered or sold, additional shares of the capital stock of the Company
or obligating the Company or any subsidiary of the Company to grant, extend or
enter into any such agreement or commitment. Except as disclosed in the Company
SEC Reports, there are no voting trusts, proxies or other agreements or
understandings to which the Company or any subsidiary of the Company is a party
or is bound with respect to the voting of any shares of capital stock of the
Company, other than voting agreements executed in connection with this
Agreement.
Section 5.3 Subsidiaries. Each direct and indirect corporate
subsidiary of the Company is duly organized, validly existing and in good
standing under the laws of its jurisdiction of incorporation and has the
requisite power and authority to own, lease and operate its assets and
properties and to carry on its business as it is now being conducted and each
subsidiary of the Company is qualified to do business, and is in good standing,
in each jurisdiction in which the properties owned, leased or operated by it or
the nature of the business conducted by it makes such qualification necessary;
except in all cases where the failure to be so qualified and in good standing
will not, when taken together with all such other failures, have a material
adverse effect on the business, operations, properties, assets, condition
(financial or other) or results of operations of the Company and its
subsidiaries, taken as a whole. All of the outstanding shares of capital stock
of each corporate subsidiary of the Company are validly issued, fully paid,
nonassessable and free of preemptive rights and are owned directly or indirectly
by the Company free and clear of any liens, claims, encumbrances, security
interests, equities, and options of any nature whatsoever, except that such
shares are pledged to secure the Company's credit facilities. There are no
subscriptions, options, warrants, rights, calls, contracts, voting trusts,
proxies or other commitments, understandings, restrictions or arrangements
relating to the issuance, sale, voting, transfer, ownership or other rights with
respect to any shares of capital stock of or interest in any subsidiary of the
Company, including any right of conversion or exchange under any outstanding
security, instrument or agreement.
Section 5.4 Authority; Non-Contravention; Approvals. (a) The
Company has full corporate power and authority to enter into this Agreement and,
subject to the Company Stockholders' Approval (as defined in Section 7.3) and
the Company Required Statutory Approvals (as defined in Section 5.4(c)), to
consummate the transactions contemplated hereby. This Agreement has been
approved by the Board of Directors of the Company and no other corporate
proceedings on the part of the Company are necessary to authorize the execution
and delivery of this Agreement or, except for the Company Stockholders'
Approval, the consummation by the Company of the transactions contemplated
hereby. This Agreement has been duly executed and delivered by the Company, and,
assuming the due authorization, execution and delivery hereof by Parent and
Subsidiary, constitutes a valid and legally binding agreement of the Company,
enforceable against the Company in accordance with its terms, except that such
enforcement may be subject to (a) bankruptcy, insolvency, reorganization,
moratorium or other similar laws affecting or relating to enforcement of
creditors' rights generally and (b)
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16
general equitable principles. Without limitation of the foregoing, each of the
covenants and obligations of the Company set forth in Sections 6.1, 6.5, 7.1,
7.2, 7.3, 7.6, 7.7, 7.8, 7.10 and 7.12 is valid, legally binding and enforceable
(subject as aforesaid) notwithstanding the absence of the Company Stockholders'
Approval.
(b) Except as disclosed in Section 5.4(b) of the Company
Disclosure Schedule, the execution and delivery of this Agreement by the Company
do not violate, conflict with or result in a breach of any provision of, or
constitute a default (or an event which, with notice or lapse of time or both,
would constitute a default) under, or result in the termination of, or
accelerate the performance required by, or result in a right of termination or
acceleration under, or result in the creation of any lien, security interest,
charge or encumbrance upon any of the properties or assets of the Company or any
of its subsidiaries under any of the terms, conditions or provisions of (i) the
respective charters or by-laws of the Company or any of its subsidiaries, (ii)
any statute, law, ordinance, rule, regulation, judgment, decree, order,
injunction, writ, permit or license of any court or governmental authority
applicable to the Company or any of its subsidiaries or any of their respective
properties or assets, or (iii) any note, bond, mortgage, indenture, deed of
trust, license, franchise, permit, concession, contract, lease or other
instrument, obligation or agreement of any kind to which the Company or any of
its subsidiaries is now a party or by which the Company or any of its
subsidiaries or any of their respective properties or assets may be bound or
affected. The consummation by the Company of the transactions contemplated
hereby will not result in any violation, conflict, breach, termination,
acceleration or creation of liens under any of the terms, conditions or
provisions described in clauses (i) through (iii) of the preceding sentence,
subject (x) in the case of the terms, conditions or provisions described in
clause (ii) above, to obtaining (prior to the Effective Time) the Company
Required Statutory Approvals and the Company Stockholders' Approval and (y) in
the case of the terms, conditions or provisions described in clause (iii) above,
to obtaining (prior to the Effective Time) consents required from commercial
lenders, lessors or other third parties as specified in Section 5.4(b) of the
Company Disclosure Schedule. Excluded from the foregoing sentences of this
paragraph (b), insofar as they apply to the terms, conditions or provisions
described in clauses (ii) and (iii) of the first sentence of this paragraph (b)
(and whether resulting from such execution and delivery or consummation), are
such violations, conflicts, breaches, defaults, terminations, accelerations or
creations of liens, security interests, charges or encumbrances that would not,
in the aggregate, have a material adverse effect on the business, operations,
properties, assets, condition (financial or other) or results of operations of
the Company and its subsidiaries, taken as a whole.
(c) Except for (i) the filings by the Company required by the
HSR Act, (ii) the filing of the Proxy Statement/Prospectus with the SEC pursuant
to the Exchange Act, (iii) the making of the Merger Filing with the Secretary of
State of the State of Delaware in connection with the Merger and (iv) any
required filings with or approvals from applicable state environmental
authorities, public service commissions or similar governmental regulatory
agencies (e.g. New York Trade Waste Commission) and public utility commissions
(the filings and
<PAGE>
17
approvals referred to in clauses (i) through (iv) are collectively referred to
as the "Company Required Statutory Approvals"), no declaration, filing or
registration with, or notice to, or authorization, consent or approval of, any
governmental or regulatory body or authority is necessary for the execution and
delivery of this Agreement by the Company or the consummation by the Company of
the transactions contemplated hereby, other than such declarations, filings,
registrations, notices, authorizations, consents or approvals which, if not made
or obtained, as the case may be, would not, in the aggregate, have a material
adverse effect on the business, operations, properties, assets, condition
(financial or other) or results of operations of the Company and its
subsidiaries, taken as a whole.
Section 5.5 Reports and Financial Statements. Since January 1,
1995, the Company has filed with the SEC all material forms, statements, reports
and documents (including all exhibits, post-effective amendments and supplements
thereto) required to be filed by it under each of the Securities Act, the
Exchange Act and the respective rules and regulations thereunder, all of which,
as amended if applicable, complied when filed (or, in the case of filing under
the Securities Act, at the time of effectiveness) in all material respects with
all applicable requirements of the appropriate act and the rules and regulations
thereunder, except as disclosed in Section 5.5 of the Company Disclosure
Schedule. The Company has previously delivered or made available to Parent
copies (including all exhibits, post-effective amendments and supplements
thereto) of its (a) Annual Report on Form 10-K for the year ended June 30, 1997,
as filed with the SEC, (b) Transition Report on Form 10-K for the six months
ended December 31, 1997, (c) proxy and information statements relating to (i)
all meetings of its stockholders (whether annual or special) and (ii) actions by
written consent in lieu of a stockholders' meeting from January 1, 1997, until
the date hereof, and (d) all other reports, including quarterly reports, and
registration statements filed by the Company with the SEC since January 1, 1996
(other than registration statements filed on Form S-8) (the documents referred
to in clauses (a), (b), (c) and (d) filed prior to the date hereof are
collectively referred to as the "Company SEC Reports"). As of their respective
dates (or, in the case of filing under the Securities Act, at the time of
effectiveness), the Company SEC Reports did not contain any untrue statement of
a material fact or omit to state a material fact required to be stated therein
or necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading. The audited consolidated financial
statements of the Company included in the Company's Transition Report on Form
10-K for the six months ended December 31, 1997 (collectively, the "Company
Financial Statements"), have been prepared in accordance with generally accepted
accounting principles applied on a consistent basis (except as may be indicated
therein or in the notes thereto) and fairly present the financial position of
the Company and its subsidiaries as of the dates thereof and the results of
their operations and changes in financial position for the periods then ended.
Section 5.6 Absence of Undisclosed Liabilities. Except as
disclosed in Section 5.6 of the Company Disclosure Schedule, the Company SEC
Reports or as heretofore disclosed to Parent in writing with respect to
acquisitions or potential transactions or commitments, neither the Company nor
any of its subsidiaries had at December 31, 1997, or has incurred since that
date and
<PAGE>
18
as of the date hereof, any liabilities or obligations (whether absolute,
accrued, contingent or otherwise) of any nature, except (a) liabilities,
obligations or contingencies (i) which are accrued or reserved against in the
Company Financial Statements or reflected in the notes thereto or (ii) which
were incurred after December 31, 1997, and were incurred in the ordinary course
of business and consistent with past practices, (b) liabilities, obligations or
contingencies which (i) would not, in the aggregate, have a material adverse
effect on the business, operations, properties, assets, condition (financial or
other) or results of operations of the Company and its subsidiaries, taken as a
whole or (ii) have been discharged or paid in full prior to the date hereof, and
(c) liabilities and obligations which are of a nature not required to be
reflected in the consolidated financial statements of the Company and its
subsidiaries prepared in accordance with generally accepted accounting
principles consistently applied and which were incurred in the ordinary course
of business.
Section 5.7 Absence of Certain Changes or Events. Since the
date of the most recent Company SEC Report that contains consolidated financial
statements of the Company, there has not been any material adverse change in the
business, operations, properties, assets, liabilities, condition (financial or
other) or results of operations of the Company and its subsidiaries, taken as a
whole, except for changes that affect the industries in which the Company and
its subsidiaries operate generally.
Section 5.8 Litigation. Except as referred to in Section 5.8
of the Company Disclosure Schedule or the Company SEC Reports, there are no
claims, suits, actions or proceedings pending or, to the knowledge of the
Company, threatened against, relating to or affecting the Company or any of its
subsidiaries or any of their respective directors or officers, before any court,
governmental department, commission, agency, instrumentality or authority, or
any arbitrator that seek to restrain the consummation of the Merger or which if
adversely determined would reasonably be expected, either alone or in the
aggregate with all such claims, actions or proceedings, to materially and
adversely affect the business, operations, properties, assets, condition
(financial or other) or results of operations of the Company and its
subsidiaries, taken as a whole. Except as referred to in the Company SEC
Reports, neither the Company nor any of its subsidiaries is subject to any
judgment, decree, injunction, rule or order of any court, governmental
department, commission, agency, instrumentality or authority, or any arbitrator
which prohibits or restricts the consummation of the transactions contemplated
hereby or would have any material adverse effect on the business, operations,
properties, assets, condition (financial or other) or results of operations of
the Company and its subsidiaries, taken as a whole.
Section 5.9 Registration Statement and Proxy Statement. None
of the information to be supplied by the Company or its subsidiaries for
inclusion in (a) the Registration Statement or (b) the Proxy Statement will, in
the case of the Proxy Statement or any amendments thereof or supplements
thereto, at the time of the mailing of the Proxy Statement and any amendments or
supplements thereto, and at the time of the meetings of stockholders of the
Company to be held in connection with the transactions contemplated by this
Agreement or, in the
<PAGE>
19
case of the Registration Statement, as amended or supplemented, at the time it
becomes effective and at the time of such meetings of the stockholders of the
Company, 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 of its mailing
date, as to form in all material respects with all applicable laws, including
the provisions of the Securities Act and the Exchange Act and the rules and
regulations promulgated thereunder, except that no representation is made by the
Company with respect to information supplied by Parent, Subsidiary or any
stockholder of Parent for inclusion therein.
Section 5.10 No Violation of Law. Except as disclosed in the
Company SEC Reports, neither the Company nor any of its subsidiaries is or at
any time since December 31, 1997, has been in violation of or has been given
notice or been charged with any violation of, any law, statute, order, rule,
regulation, ordinance or judgment (including, without limitation, any applicable
environmental law, ordinance or regulation) of any governmental or regulatory
body or authority, except for violations which, in the aggregate, could not
reasonably be expected to have a material adverse effect on the business,
operations, properties, assets, condition (financial or other) or results of
operations of the Company and its subsidiaries, taken as a whole. Except as
disclosed in the Company SEC Reports, as of the date of this Agreement, to the
knowledge of the Company, no investigation or review by any governmental or
regulatory body or authority is pending or threatened, nor has any governmental
or regulatory body or authority indicated an intention to conduct the same,
other than, in each case, those the outcome of which, as far as reasonably can
be foreseen, will not have a material adverse effect on the business,
operations, properties, assets, condition (financial or other) or results of
operations of the Company and its subsidiaries, taken as a whole. The Company
and its subsidiaries have all permits, licenses, franchises, variances,
exemptions, orders and other governmental authorizations, consents and approvals
necessary to conduct their businesses as presently conducted (collectively, the
"Company Permits"), except for permits, licenses, franchises, variances,
exemptions, orders, authorizations, consents and approvals the absence of which,
alone or in the aggregate, would not have a material adverse effect on the
business, operations, properties, assets, condition (financial or other) or
results of operations of the Company and its subsidiaries, taken as a whole. The
Company and its subsidiaries are not in violation of the terms of any Company
Permit, except for delays in filing reports or violations which, alone or in the
aggregate, would not have a material adverse effect on the business, operations,
properties, assets, condition (financial or other), results of operations of the
Company and its subsidiaries, taken as a whole.
Section 5.11 Compliance with Agreements. Except as disclosed
in the Company SEC Reports, the Company and each of its subsidiaries are not in
breach or violation of or in default in the performance or observance of any
term or provision of, and no event has occurred which, with lapse of time or
action by a third party, would result in a default under, (a) the respective
charter, by-laws or similar organizational instruments of the Company or any of
its subsidiaries or (b) any contract, commitment, agreement, indenture,
mortgage, loan agreement,
<PAGE>
20
note, lease, bond, license, approval or other instrument to which the Company or
any of its subsidiaries is a party or by which any of them is bound or to which
any of their property is subject, other than, in the case of clause (b) of this
Section 5.11, breaches, violations and defaults which would not have, in the
aggregate, a material adverse effect on the business, operations, properties,
assets, condition (financial or other) or results of operations of the Company
and its subsidiaries, taken as a whole.
Section 5.12 Taxes. (a) The Company and its subsidiaries have
(i) duly filed with the appropriate governmental authorities all Tax Returns
required to be filed by them for all periods ending on or prior to the Closing
Date, other than those Tax Returns the failure of which to file would not have a
material adverse effect on the business, operations, properties, assets,
condition (financial or other) or results of operations of the Company and its
subsidiaries, taken as a whole, and such Tax Returns are true, correct and
complete in all material respects, and (ii) duly paid in full or made adequate
provision in accordance with generally accepted accounting principles for the
payment of all Taxes for all past and current periods. The liabilities and
reserves for Taxes reflected in the Company balance sheet included in the latest
Company SEC Report to cover all Taxes for all periods ending at or prior to the
date of such balance sheet have been determined in accordance with generally
accepted accounting principles and there is no material liability for Taxes for
any period beginning after such date other than Taxes arising in the ordinary
course of business. There are no material liens for Taxes upon any property or
asset of the Company or any subsidiary thereof, except for liens for Taxes not
yet due or Taxes contested in good faith and adequately reserved against in
accordance with generally accepted accounting principles. There are no
unresolved issues of law or fact arising out of a notice of deficiency, proposed
deficiency or assessment from the Internal Revenue Service or any other
governmental taxing authority with respect to Taxes of the Company or any of its
subsidiaries which, singly or in the aggregate, would reasonably be expected to
have a material adverse effect on the business, operations, properties, assets,
condition (financial or other) or results of operations of the Company and its
subsidiaries, taken as a whole. Neither the Company nor its subsidiaries has
waived any statute of limitations in respect of a material amount of Taxes or
agreed to any extension of time with respect to a material Tax assessment or
deficiency other than waivers and extensions which are no longer in effect.
Neither the Company nor any of its subsidiaries is a party to any agreement
providing for the allocation or sharing of Taxes with any entity that is not,
directly or indirectly, a wholly-owned corporate subsidiary of Company other
than agreements the consequences of which are fully and adequately reserved for
in the Company Financial Statements. Neither the Company nor any of its
corporate subsidiaries has, with regard to any assets or property held, acquired
or to be acquired by any of them, filed a consent to the application of Section
341(f) of the Code.
(b) For purposes of this Agreement, the term "Taxes" shall
mean all taxes, including, without limitation, income, gross receipts, excise,
property, sales, withholding, social security, occupation, use, service,
license, payroll, franchise, transfer and recording taxes, fees and charges,
windfall profits, severance, customs, import, export, employment or similar
taxes,
<PAGE>
21
charges, fees, levies or other assessments imposed by the United States, or any
state, local or foreign government or subdivision or agency thereof, whether
computed on a separate, consolidated, unitary, combined or any other basis, and
such term shall include any interest, fines, penalties or additional amounts and
any interest in respect of any additions, fines or penalties attributable or
imposed or with respect to any such taxes, charges, fees, levies or other
assessments.
(c) For purposes of this Agreement, the term "Tax Return"
shall mean any return, report or other document required to be supplied to a
taxing authority in connection with Taxes.
Section 5.13 Employee Benefit Plans; ERISA. (a) Except as
disclosed in Section 5.13(a) of the Company Disclosure Schedule or the Company
SEC Reports, at the date hereof, the Company and its subsidiaries do not
maintain or contribute to or have any obligation or liability to or with respect
to any material employee benefit plans, programs, arrangements or practices,
including employee benefit plans within the meaning set forth in Section 3(3) of
the Employee Retirement Income Security Act of 1974, as amended ("ERISA"), or
other similar material arrangements for the provision of benefits (excluding any
"Multi-employer Plan" within the meaning of Section 3(37) of ERISA or a
"Multiple Employer Plan" within the meaning of Section 413(c) of the Code) (such
plans, programs, arrangements or practices of the Company and its subsidiaries
being referred to as the "Company Plans"). Section 5.13 of the Company
Disclosure Schedule lists all Multi-employer Plans to which any of them makes
contributions or has any obligation or liability to make material contributions.
Neither the Company nor any of its subsidiaries maintains or has any material
liability with respect to any Multiple Employer Plan. Neither the Company nor
any of its subsidiaries has any obligation to create or contribute to any
additional such plan, program, arrangement or practice or to amend any such
plan, program, arrangement or practice so as to increase benefits or
contributions thereunder, except as required under the terms of the Company
Plans, under existing collective bargaining agreements or to comply with
applicable law.
(b) Except as disclosed in the Company SEC Reports, (i) there
have been no prohibited transactions within the meaning of Section 406 or 407 of
ERISA or Section 4975 of the Code with respect to any of the Company Plans that
could result in penalties, taxes or liabilities which, singly or in the
aggregate, could have a material adverse effect on the business, operations,
properties, assets, condition (financial or other) or results of operations of
the Company and its subsidiaries, taken as a whole, (ii) except for premiums
due, there is no outstanding material liability, whether measured alone or in
the aggregate, under Title IV of ERISA with respect to any of the Company Plans,
(iii) neither the Pension Benefit Guaranty Corporation nor any plan
administrator has instituted proceedings to terminate any of the Company Plans
subject to Title IV of ERISA other than in a "standard termination" described in
Section 4041(b) of ERISA, (iv) none of the Company Plans has incurred any
"accumulated funding deficiency" (as defined in Section 302 of ERISA and Section
412 of the Code), whether
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22
or not waived, as of the last day of the most recent fiscal year of each of the
Company Plans ended prior to the date of this Agreement, (v) the current present
value of all projected benefit obligations under each of the Company Plans which
is subject to Title IV of ERISA did not, as of its latest valuation date, exceed
the then current value of the assets of such plan allocable to such benefit
liabilities by more than the amount, if any, disclosed in the Company SEC
Reports as of December 31, 1997, based upon reasonable actuarial assumptions
currently utilized for such Company Plan, (vi) each of the Company Plans has
been operated and administered in accordance with applicable laws during the
period of time covered by the applicable statute of limitations, except for
failures to comply which, singly or in the aggregate, would not reasonably be
expected to have a material adverse effect on the business, operations,
properties, assets, condition (financial or other) or results of operations of
the Company and its subsidiaries, taken as a whole, (vii) each of the Company
Plans which is intended to be "qualified" within the meaning of Section 401(a)
of the Code has been determined by the Internal Revenue Service to be so
qualified and such determination has not been modified, revoked or limited by
failure to satisfy any condition thereof or by a subsequent amendment thereto or
a failure to amend, except that it may be necessary to make additional
amendments retroactively to maintain the "qualified" status of such Company
Plans, and the period for making any such necessary retroactive amendments has
not expired, (viii) with respect to Multi-employer Plans, neither the Company
nor any of its subsidiaries has made or suffered a "complete withdrawal" or a
"partial withdrawal, as such terms are respectively defined in Sections 4203,
4204 and 4205 of ERISA and, to the best knowledge of the Company and its
subsidiaries, no event has occurred or is expected to occur which presents a
material risk of a complete or partial withdrawal under said Sections 4203, 4204
and 4205, (ix) to the best knowledge of the Company and its subsidiaries, there
are no material pending, threatened or anticipated claims involving any of the
Company Plans other than claims for benefits in the ordinary course, (x) the
Company and its subsidiaries have no current material liability under Title IV
of ERISA, and the Company and its subsidiaries do not reasonably anticipate that
any such liability will be asserted against the Company or any of its
subsidiaries, and (xi) no act, omission or transaction (individually or in the
aggregate) has occurred with respect to any Company Plan that has resulted or
could result in any material liability (direct or indirect) of the Company or
any subsidiary under Sections 409 or 502(c) of ERISA or Chapter 43 of Subtitle
(A) of the Code. None of the Company Plans has an "accumulated funding
deficiency" (as defined in Section 302 of ERISA and Section 412 of the Code) or
is required to provide security to a Company Plan pursuant to Section 401(a)(29)
of the Code.
(c) The Company SEC Reports contain a true and complete
summary or list of or otherwise describe all material employment contracts and
other employee benefit arrangements with "change of control" or similar
provisions and all severance agreements with executive officers.
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23
(d) Except as disclosed in Section 5.13(d) of the Company
Disclosure Schedule, there are no agreements which will or may provide payments
to any current or former officer, employee, stockholder, or highly compensated
individual which will be "parachute payments" under Code Section 280G that will
be nondeductible to the Company or subject to the excise tax imposed under Code
Section 4999.
Section 5.14 Labor Controversies. Except as disclosed in the
Company SEC Reports as of the date hereof, (a) there are no significant
controversies pending or, to the knowledge of the Company, threatened between
the Company or its subsidiaries and any representatives of any of their
employees and (b) to the knowledge of the Company, there are no material
organizational efforts presently being made involving any of the presently
unorganized employees of the Company or its subsidiaries, except for such
controversies and organizational efforts, which, singly or in the aggregate,
could not reasonably be expected to materially and adversely affect the
business, operations, properties, assets, condition (financial or other) or
results of operations of the Company and its subsidiaries, taken as a whole.
Section 5.15 Environmental Matters. (a) Except as disclosed in
the Company SEC Reports, (i) the Company and its subsidiaries have conducted
their respective businesses in compliance with all applicable Environmental
Laws, including, without limitation, having all permits, licenses and other
approvals and authorizations necessary for the operation of their respective
businesses as presently conducted, (ii) none of the properties owned by the
Company or any of its subsidiaries contain any Hazardous Substance as a result
of any activity of the Company or any of its subsidiaries in amounts exceeding
the levels permitted by applicable Environmental Laws, (iii) since January 1,
1995, neither the Company nor any of its subsidiaries has received any notices,
demand letters or requests for information from any Federal, state, local or
foreign governmental entity indicating that the Company or any of its
subsidiaries may be in violation of, or liable under, any Environmental Law in
connection with the ownership or operation of their businesses, (iv) there are
no civil, criminal or administrative actions, suits, demands, claims, hearings,
investigations or proceedings pending or threatened, against the Company or any
of its subsidiaries relating to any violation, or alleged violation, of any
Environmental Law, (v) no Hazardous Substance has been disposed of, released or
transported in violation of any applicable Environmental Law from any properties
owned by the Company or any of its subsidiaries as a result of any activity of
the Company or any of its subsidiaries during the time such properties were
owned, leased or operated by the Company or any of its subsidiaries, and (vi)
neither the Company, its subsidiaries nor any of their respective properties are
subject to any material liabilities or expenditures (fixed or contingent)
relating to any suit, settlement, court order, administrative order, regulatory
requirement, judgment or claim asserted or arising under any Environmental Law,
except for violations of the foregoing clauses (i) through (vi) that, singly or
in the aggregate, would not reasonably be expected to have a material adverse
effect on the business, operations, properties, assets, condition (financial or
other) or results of operations of the Company and its subsidiaries, taken as a
whole.
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24
(b) As used herein, "Environmental Law" means any Federal,
state, local or foreign law, statute, ordinance, rule, regulation, code,
license, permit, authorization, approval, consent, legal doctrine, order,
judgment, decree, injunction, requirement or agreement with any governmental
entity relating to (x) the protection, preservation or restoration of the
environment (including, without limitation, air, water vapor, surface water,
groundwater, drinking water supply, surface land, subsurface land, plant and
animal life or any other natural resource) or to human health or safety or (y)
the exposure to, or the use, storage, recycling, treatment, generation,
transportation, processing, handling, labeling, production, release or disposal
of Hazardous Substances, in each case as amended and as in effect on the Closing
Date. The term "Environmental Law" includes, without limitation, (i) the Federal
Comprehensive Environmental Response Compensation and Liability Act of 1980, the
Superfund Amendments and Reauthorization Act, the Federal Water Pollution
Control Act of 1972, the Federal Clean Air Act, the Federal Clean Water Act, the
Federal Resource Conservation and Recovery Act of 1976 (including the Hazardous
and Solid Waste Amendments thereto), the Federal Solid Waste Disposal Act and
the Federal Toxic Substances Control Act, the Federal Insecticide, Fungicide and
Rodenticide Act, and the Federal Occupational Safety and Health Act of 1970,
each as amended and as in effect on the Closing Date, and (ii) any common law or
equitable doctrine (including, without limitation, injunctive relief and tort
doctrines such as negligence, nuisance, trespass and strict liability) that may
impose liability or obligations for injuries or damages due to, or threatened as
a result of, the presence of, effects of or exposure to any Hazardous Substance.
(c) As used herein, "Hazardous Substance" means any substance
presently or hereafter listed, defined, designated or classified as hazardous,
toxic, radioactive, or dangerous, or otherwise regulated, under any
Environmental Law. Hazardous Substance includes any substance to which exposure
is regulated by any government authority or any Environmental Law including,
without limitation, any toxic waste, pollutant, contaminant, hazardous
substance, toxic substance, hazardous waste, special waste, industrial substance
or petroleum or any derivative or by-product thereof, radon, radioactive
material, asbestos, or asbestos containing material, urea formaldehyde foam
insulation, lead or polychlorinated biphenyls.
Section 5.16 Non-Competition Agreements. Except as disclosed
in the Company SEC Reports, neither the Company nor any subsidiary of the
Company is a party to any agreement which (i) purports to restrict or prohibit
in any material respect any of them or any corporation affiliated with any of
them from, directly or indirectly, engaging in any business involving the
collection, interim storage, transfer, recovery, processing, recycling,
marketing or disposal of rubbish, garbage, paper, textile wastes, chemical or
hazardous wastes, liquid and other wastes or any other material business
currently engaged in by Parent or the Company, or any corporations affiliated
with either of them and (ii) would restrict or prohibit Parent or any subsidiary
of the Parent (other than the Company and its subsidiaries that are currently so
restricted or prohibited) from engaging in such business. None of the Company's
officers, directors or key employees is a party to any agreement which, by
virtue of such person's
<PAGE>
25
relationship with the Company, restricts in any material respect the Company
or any subsidiary or affiliate of the Company from, directly or indirectly,
engaging in any of the businesses described above.
Section 5.17 Title to Assets. The Company and each of its
subsidiaries has good and marketable title in fee simple to all its real
property and good title to all its leasehold interests and other properties, as
reflected in the most recent balance sheet included in the Company Financial
Statements, except for properties and assets that have been disposed of in the
ordinary course of business since the date of such balance sheet, free and clear
of all mortgages, liens, pledges, charges or encumbrances of any nature
whatsoever, except (i) the lien for current taxes, payments of which are not yet
delinquent, (ii) such imperfections in title and easements and encumbrances, if
any, as are not substantial in character, amount or extent and do not materially
detract from the value, or interfere with the present use of the property
subject thereto or affected thereby, or otherwise materially impair the
Company's business operations (in the manner presently carried on by the
Company) or (iii) as disclosed in the Company SEC Reports, and except for such
matters which, singly or in the aggregate, could not reasonably be expected to
materially and adversely affect the business, operations, properties, assets,
condition (financial or other) or results of operations of the Company and its
subsidiaries, taken as a whole. All leases under which the Company leases any
real or personal property are in good standing, valid and effective in
accordance with their respective terms, and there is not, under any of such
leases, any existing default or event which with notice or lapse of time or both
would become a default other than failures to be in good standing, valid and
effective and defaults under such leases which in the aggregate will not
materially and adversely affect the business, operations, properties, assets,
condition (financial or other) or results of operations of the Company and its
subsidiaries, taken as a whole.
Section 5.18 Reorganization and Pooling of Interests. To the
knowledge of the Company, neither the Company nor any of its affiliates has
taken or agreed or intends to take any action or has any knowledge of any fact
or circumstance that would prevent the Merger from (a) constituting a
reorganization within the meaning of Section 368(a) of the Code or (b) being
treated for financial accounting purposes as a Pooling Transaction. As of the
date hereof, other than directors and officers of the Company, to the knowledge
of the Company, there are no "affiliates" of the Company, as that term is used
in paragraphs (c) and (d) of Rule 145 under the Securities Act.
Section 5.19 Company Stockholders' Approval. The affirmative
vote of stockholders of the Company required for approval and adoption of this
Agreement and the Merger is a majority of the outstanding shares of Company
Common Stock entitled to vote thereon.
Section 5.20 Brokers and Finders. Except for the fees and
expenses payable to Salomon Smith Barney, which fees are reflected in its
agreement with the Company, the
<PAGE>
26
Company has not entered into any contract, arrangement or understanding with any
person or firm which may result in the obligation of the Company to pay any
finder's fees, brokerage or agent commissions or other like payments in
connection with the transactions contemplated hereby. Except for the fees and
expenses paid or payable to Salomon Smith Barney, there is no claim for payment
by the Company of any investment banking fees, finder's fees, brokerage or agent
commissions or other like payments in connection with the negotiations leading
to this Agreement or the consummation of the transactions contemplated hereby.
Section 5.21 Opinion of Financial Advisor. The financial
advisor of the Company, Salomon Smith Barney, has rendered an opinion to the
Board of Directors of the Company to the effect that, as of the date thereof,
the Exchange Ratio is fair to the holders of Company Common Stock from a
financial point of view; it being understood and acknowledged by Parent and
Subsidiary that such opinion has been rendered for the benefit of the Board of
Directors of the Company and is not intended to, and may not, be relied upon by
Parent, its affiliates or their respective subsidiaries.
ARTICLE VI
CONDUCT OF BUSINESS PENDING THE MERGER
Section 6.1 Conduct of Business by the Company Pending the
Merger. Except as otherwise permitted by Section 6.1 of the Company Disclosure
Schedule or otherwise contemplated by this Agreement, after the date hereof and
prior to the Closing Date or earlier termination of this Agreement, unless
Parent shall otherwise agree in writing, the Company shall, and shall cause its
subsidiaries to:
(a) conduct their respective businesses in the ordinary and
usual course of business and consistent with past practice;
(b) not (i) amend or propose to amend their respective charter
or by-laws (except that the Company may amend its charter to increase
the number of authorized shares of Company Common Stock), (ii) split,
combine or reclassify their outstanding capital stock or (iii) declare,
set aside or pay any dividend or distribution payable in cash, stock,
property or otherwise, except for the payment of dividends or
distributions to the Company by a wholly-owned subsidiary of the
Company;
(c) not issue, sell, pledge or dispose of, or agree to issue,
sell, pledge or dispose of, any additional shares of, or any options,
warrants or rights of any kind to acquire any shares of their capital
stock of any class or any debt or equity securities convertible into or
exchangeable for such capital stock, except that (i) the Company may
issue shares upon exercise of options and warrants, (ii) the Company
may issue shares of Company Common Stock (or warrants or options to
acquire up to an aggregate of 120,000 shares of Company Common Stock)
in connection with acquisitions of assets or businesses pursuant to the
proviso of Section 6.1(d), (iii) the Company may grant options with an
exercise price per share of Company Common Stock no less than the
closing price
<PAGE>
27
of a share of Company Common Stock on the day prior to grant of such
option with respect to up to an aggregate of 100,000 shares of Company
Common Stock; provided, however, that such grants may not be made to
any current executive officer or director of the Company and may only
be made in the ordinary course of business, to employees of the Company
and its subsidiaries consistent with past practice; and (iv) after
December 31, 1998, the Company may issue options to executive officers
and directors in an amount consistent with past practice and after
delivery to Parent of a letter from Ernst & Young LLP in a form
reasonably satisfactory to Parent to the effect that the issuance of
such options would not prevent the Merger from being treated as a
"pooling of interests" for financial accounting purposes.
(d) not (i) incur or become contingently liable with respect
to any indebtedness for borrowed money other than (A) borrowings in the
ordinary course of business (other than pursuant to credit facilities)
or borrowings under the existing credit facilities of the Company or
any of its subsidiaries as such facilities may be amended in a manner
that does not have a material adverse effect on the Company (the
"Existing Credit Facilities") up to the existing borrowing limit on the
date hereof or extensions of the Existing Credit Facilities to finance
acquisitions pursuant to the proviso of this Section 6.1(d), (B)
borrowings to refinance existing indebtedness on terms which are
reasonably acceptable to Parent, (C) assumption of loans of certain
leases of equipment in connection with acquisitions or rollovers of
certain leases of equipment in the ordinary course of business
consistent with past practice in amount or (D) borrowings in connection
with acquisitions as set forth in the proviso in this Section 6.1(d),
(ii) redeem, purchase, acquire or offer to purchase or acquire any
shares of its capital stock or any options, warrants or rights to
acquire any of its capital stock or any security convertible into or
exchangeable for its capital stock, (iii) notwithstanding any other
provision of this Section 6.1, take any action that would jeopardize
the treatment of the Merger as a pooling of interests under Opinion No.
16 of the Accounting Principles Board ("APB No. 16"), (iv)
notwithstanding any other provision of this Section 6.1, take or fail
to take any action which action or failure to take action would cause
the Company or its stockholders (except to the extent that any
stockholders receive cash in lieu of fractional shares and except to
the extent of Stockholders in special circumstances) to recognize gain
or loss for federal income tax purposes as a result of the consummation
of the Merger or would otherwise cause the Merger not to qualify as a
reorganization under Section 368(a) of the Code, (v) make any
acquisition of any assets or businesses other than expenditures for
current assets in the ordinary course of business and expenditures for
fixed or capital assets in the ordinary course of business and other
than as set forth in the proviso in this Section 6.1(d), (vi) sell,
pledge, dispose of or encumber any material assets or businesses other
than (a) sales of businesses or assets in the ordinary course of
business, (b) sales of businesses or assets disclosed in Section 6.1 of
the Company Disclosure Schedule, (c) sales of businesses or assets with
aggregate 1997 revenues less than $5.0 million, and (d) pledges or
encumbrances pursuant to Existing Credit Facilities or other permitted
borrowings, or (vii)
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28
except as contemplated by the following proviso, enter into any binding
contract, agreement, commitment or arrangement with respect to any of
the foregoing; provided, however, that notwithstanding the foregoing
(other than subsections (iii) and (iv) of this Section 6.1(d)), the
Company shall not be prohibited from acquiring any assets or businesses
or incurring or assuming indebtedness in connection with acquisitions
of assets or businesses so long as (A) such acquisitions are disclosed
in Section 6.1 of the Company Disclosure Schedule, or (B) the aggregate
revenue projected to be earned from acquisitions (other than those
acquisitions disclosed in Section 6.1 of the Company Disclosure
Schedule) for the twelve months following each acquisition does not
exceed $150 million prior to December 31, 1998 or $250 million
thereafter, and the aggregate value of consideration paid or payable
for any one such acquisition (other than those acquisitions disclosed
in Section 6.1 of the Company Disclosure Schedule), including any
funded indebtedness assumed and any Company Common Stock issued in
connection with such acquisition (valued for purposes of this
limitation at a price per share equal to the price of the Company
Common Stock on the date the agreement in respect of such acquisition
is entered into) does not exceed $60 million. For purposes of the
foregoing, any contingent, royalty and similar payments made in
connection with acquisitions of businesses or assets shall be included
as acquisition consideration and shall be deemed to have a value equal
to their present value assuming an 8% per annum discount rate and
assuming that all amounts payable for the first five years following
consummation of the acquisitions (but not thereafter) are paid.
Notwithstanding anything herein to the contrary (A) the Company will
not acquire or agree to acquire any assets or businesses if such
acquisition or agreement may reasonably be expected to delay the
consummation of the Merger, (B) the Company will not acquire or agree
to acquire any assets or businesses if such assets or businesses are
not in industries in which the Company currently operates, unless such
assets or businesses are acquired incidental to an acquisition of
businesses or assets that are in industries in which the Company
currently operates and it is reasonable to acquire such incidental
businesses or assets in connection with such acquisition, and (C) the
Company will not acquire or agree to acquire all or substantially all
of the business, assets, properties or capital stock of any entity with
securities registered under the Securities Act or the Exchange Act;
(e) use all reasonable efforts to preserve intact their
respective business organizations and goodwill, keep available the
services of their respective present officers and key employees, and
preserve the goodwill and business relationships with customers and
others having business relationships with them;
<PAGE>
29
(f) subject to restrictions imposed by applicable law, confer
with one or more representatives of Parent to report operational
matters of materiality and the general status of ongoing operations;
(g) not enter into or amend any employment, severance, special
pay arrangement with respect to termination of employment or other
similar arrangements or agreements with any directors, officers or key
employees, except in the ordinary course of business and consistent
with past practice; provided, however, that the Company and its
subsidiaries shall in no event enter into or amend any written
employment agreement providing for annual base salary in excess of
$75,000 per annum, except for employment agreements entered into with
the sellers of businesses acquired in accordance with this Agreement;
(h) not adopt, enter into or amend any pension or retirement
plan, trust or fund, except as required to comply with changes in
applicable law and not adopt, enter into or amend in any material
respect any bonus, profit sharing, compensation, stock option, deferred
compensation, health care, employment or other employee benefit plan,
agreement, trust, fund or arrangement for the benefit or welfare of any
employees or retirees generally, other than in the ordinary course of
business, except (i) as contemplated by Section 6.1(c), (ii) as
required to comply with changes in applicable law, (iii) to increase
the number of shares of Company Common Stock available for grant or
award under the Company's 1997 Stock Option Plan, 1996 Stock Option
Plan, 1991 Stock Option Plan and the 1988 Employee Stock Bonus Plan,
(iv) any of the foregoing involving any such then existing plans,
agreements, trusts, funds or arrangements of any company acquired after
the date hereof or (v) as required pursuant to an existing contractual
arrangement or agreement;
(i) use commercially reasonable efforts to maintain with
financially responsible insurance companies insurance on its tangible
assets and its businesses in such amounts and against such risks and
losses as are consistent with past practice;
(j) not make, change or revoke any material Tax election or
make any material agreement or settlement regarding Taxes with any
taxing authority; and
(k) not change its accounting principles or practices other
than as required by United States generally accepted accounting
principles.
Section 6.2 Conduct of Business by Parent and Subsidiary
Pending the Merger. Except as otherwise contemplated by this Agreement, after
the date hereof and prior to the Closing Date or earlier termination of this
Agreement, unless the Company shall otherwise agree in writing, Parent shall,
and shall cause its subsidiaries to:
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30
(a) conduct their respective businesses in the ordinary and
usual course of business and consistent with past practice;
(b) not (i) amend or propose to amend their respective charter
(except for any amendments by Parent of its Certificate of
Incorporation to increase the number of authorized shares of Parent
Common Stock so as to be able to consummate the Merger) or by-laws,
(ii) split, combine or reclassify (whether by stock dividend or
otherwise) their outstanding capital stock, or (iii) declare, set aside
or pay any dividend or distribution payable in cash, stock, property or
otherwise, except for the payment of quarterly cash dividends, or
dividends or distributions to Parent by a wholly-owned subsidiary of
Parent;
(c) not (i) take any action that would jeopardize the
treatment of the Merger as a pooling of interests under APB No. 16,
(ii) take or fail to take any action which action or failure to take
action would cause Parent or its stockholders to recognize gain or loss
for federal income tax purposes as a result of the consummation of the
Merger or would otherwise cause the Merger not to qualify as a
reorganization under Section 368(a) of the Code;
(d) not intentionally delist the Parent Common Stock from
trading on the NYSE; and
(e) not change its accounting principles or practices other
than as required by United States generally accepted accounting
principles.
Section 6.3 Control of the Company's Operations. Nothing
contained in this Agreement shall give to Parent, directly or indirectly, rights
to control or direct the Company's operations prior to the Effective Time. Prior
to the Effective Time, the Company shall exercise, consistent with the terms and
conditions of this Agreement, complete control and supervision of its
operations.
Section 6.4 Control of Parent's Operations. Nothing contained
in this Agreement shall give to the Company, directly or indirectly, rights to
control or direct Parent's operations prior to the Effective Time. Prior to the
Effective Time, Parent shall exercise, consistent with the terms and conditions
of this Agreement, complete control and supervision of its operations.
Section 6.5 Acquisition Transactions. (a) After the date
hereof and prior to the Effective Time or earlier termination of this Agreement,
the Company shall not, and shall not permit any of its subsidiaries to,
initiate, solicit, negotiate, encourage or provide confidential information to
facilitate, and the Company shall, and shall use its reasonable efforts to cause
any officer, director or employee of the Company, or any attorney, accountant,
investment banker, financial advisor or other agent retained by it or any of its
subsidiaries, not to initiate, solicit, negotiate, encourage or provide
nonpublic or confidential information to facilitate, any proposal
<PAGE>
31
or offer to acquire all or any substantial part of the business or properties of
the Company or any capital stock of the Company, whether by merger, purchase of
assets, tender offer or otherwise, (other than a transaction permitted pursuant
to Section 6.1(d)) whether for cash, securities or any other consideration or
combination thereof (any such transactions being referred to herein as an
"Acquisition Transaction").
(b) Notwithstanding the provisions of paragraph (a) above, (i)
the Company may, in response to an unsolicited written offer or proposal with
respect to a potential or proposed Acquisition Transaction ("Acquisition
Proposal") which the Company's Board of Directors determines, in good faith and
after consultation with its independent financial advisor, could result (if
consummated pursuant to its terms) in an Acquisition Transaction more favorable
to the Company's stockholders than the Merger (any such offer or proposal being
referred to as a "Superior Proposal"), furnish (subject to the execution of a
confidentiality agreement substantially similar to the confidentiality
provisions of this Agreement), confidential or nonpublic information to a
financially capable corporation, partnership, person or other entity or group (a
"Potential Acquirer") and negotiate with such Potential Acquirer if the Board of
Directors of the Company, after consulting with its outside legal counsel,
determines in good faith that the failure to provide such confidential or
nonpublic information to or negotiate with such Potential Acquirer would be
reasonably likely to constitute a breach of its fiduciary duty to the Company's
stockholders and (ii) the Company's Board of Directors may take and disclose to
the Company's stockholders a position contemplated by Rule 14e-2 under the
Exchange Act. It is understood and agreed that negotiations and other activities
conducted in accordance with this paragraph (b) shall not constitute a violation
of paragraph (a) of this Section 6.5.
(c) The Company shall promptly (but in any event within 48
hours) notify Parent after receipt of any Acquisition Proposal, indication of
interest or request for nonpublic information relating to the Company or 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 of Directors of the Company or such subsidiary
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 in reasonable
detail the identity of the offeror and the terms and conditions of such
proposal, inquiry or contact.
ARTICLE VII
ADDITIONAL AGREEMENTS
Section 7.1 Access to Information. (a) Subject to applicable
law, the Company and its subsidiaries shall afford to Parent and Subsidiary and
their respective accountants, counsel, financial advisors and other
representatives (the "Parent Representatives") and Parent and its subsidiaries
shall afford to the Company and its accountants, counsel, financial advisors and
other
<PAGE>
32
representatives (the "Company Representatives") reasonable access during normal
business hours with reasonable notice throughout the period prior to the
Effective Time to all of their respective properties, books, contracts,
commitments and records (including, but not limited to, Tax Returns) and, during
such period, shall furnish promptly to one another (i) a copy of each report,
schedule and other document filed or received by any of them pursuant to the
requirements of federal or state securities laws or filed by any of them with
the SEC and (ii) such other information concerning their respective businesses,
properties and personnel as Parent or Subsidiary or the Company, as the case may
be, shall reasonably request; provided, however, that no investigation pursuant
to this Section 7.1 shall amend or modify any representations or warranties made
herein or the conditions to the obligations of the respective parties to
consummate the Merger. Parent and its subsidiaries shall hold and shall use
their reasonable best efforts to cause the Parent Representatives to hold, and
the Company and its subsidiaries shall hold and shall use their reasonable best
efforts to cause the Company Representatives to hold, in strict confidence all
nonpublic documents and information furnished to Parent and Subsidiary or to the
Company, as the case may be, in connection with the transactions contemplated by
this Agreement, except that (i) Parent, Subsidiary and the Company may disclose
such information as may be necessary in connection with seeking the Parent
Required Statutory Approvals and Parent Stockholders' Approval, the Company
Required Statutory Approvals and the Company Stockholders' Approval and (ii)
each of Parent, Subsidiary and the Company may disclose any information that it
is required by law or judicial or administrative order to disclose.
(b) In the event that this Agreement is terminated in
accordance with its terms, each party shall promptly redeliver to the other all
nonpublic written material provided pursuant to this Section 7.1 and shall not
retain any copies, extracts or other reproductions in whole or in part of such
written material. In such event, all documents, memoranda, notes and other
writings prepared by Parent or the Company based on the information in such
material shall be destroyed (and Parent and the Company shall use their
respective reasonable best efforts to cause their advisors and representatives
to similarly destroy their documents, memoranda and notes), and such destruction
(and reasonable best efforts) shall be certified in writing by an authorized
officer supervising such destruction.
Section 7.2 Registration Statement and Proxy Statement. Parent
and the Company shall file with the SEC as soon as is reasonably practicable
after the date hereof the Registration Statement and shall use all reasonable
efforts to have the Registration Statement declared effective by the SEC as
promptly as practicable. Parent shall also take any action required to be taken
under applicable state blue sky or securities laws in connection with the
issuance of Parent Common Stock pursuant hereto. Parent and the Company shall
promptly furnish to each other all information, and take such other actions, as
may reasonably be requested in connection with any action by any of them in
connection with the preceding sentence. The information provided and to be
provided by Parent and the Company, respectively, for use in the Proxy
Statement/Prospectus shall not contain any untrue statement of a material fact
or omit to
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33
state a material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading.
Section 7.3 Stockholders' Approvals. Subject to the fiduciary
duties of the Board of Directors of the Company under applicable law and to the
terms of this Agreement, the Company shall, as promptly as practicable, submit
this Agreement and the transactions contemplated hereby for the approval of its
stockholders at a meeting of stockholders and shall use its reasonable best
efforts to obtain stockholder approval and adoption (the "Company Stockholders'
Approval") of this Agreement and the transactions contemplated hereby. Subject
to the fiduciary duties of the Board of Directors of the Company under
applicable law and to the terms of this Agreement, such meeting of stockholders
shall be held as soon as practicable following the date upon which the
Registration Statement becomes effective. Subject to the fiduciary duties of the
Board of Directors of the Company under applicable law and to the terms of this
Agreement, the Company shall, through its Board of Directors, recommend to its
stockholders approval of the transactions contemplated by this Agreement.
Section 7.4 Compliance with the Securities Act. Parent and the
Company shall each use its commercially reasonable efforts to cause each
officer, each director and each other person who is an "affiliate," as that term
is used in paragraphs (c) and (d) of Rule 145 under the Securities Act, of
Parent or the Company, as the case may be, to deliver to Parent and the Company
on or prior to the Effective Time a written agreement (an "Affiliate Agreement")
to the effect that such person will not offer to sell, sell or otherwise dispose
of any shares of Parent Common Stock issued in the Merger, except, in each case,
pursuant to an effective registration statement or in compliance with Rule 145,
as amended from time to time, or in a transaction which, in the opinion of legal
counsel satisfactory to Parent, is exempt from the registration requirements of
the Securities Act and, in any case, until after the results covering 30 days of
post-Merger combined operations of Parent and the Company have been filed with
the SEC, sent to stockholders of Parent or otherwise publicly issued.
Section 7.5 Exchange Listing. Parent shall use its reasonable
best efforts to effect, at or before the Effective Time, authorization for
listing on the NYSE, upon official notice of issuance, of the shares of Parent
Common Stock to be issued pursuant to the Merger or to be reserved for issuance
upon exercise of stock options or warrants.
Section 7.6 Expenses and Fees. (a) All costs and expenses
incurred in connection with this Agreement and the transactions contemplated
hereby shall be paid by the party incurring such expenses, except that those
expenses incurred in connection with printing and filing the Proxy
Statement/Prospectus shall be shared equally by Parent and the Company.
(b) The Company agrees to pay to Parent a fee equal to $35
million if:
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34
(i) the Company terminates this Agreement pursuant to clause
(iv) or (v) of Section 9.1(a);
(ii) Parent terminates this Agreement pursuant to clause (iv)
of Section 9.1(b); or
(iii) (A) Parent terminates this Agreement pursuant to clause
(vi) of Section 9.1(b); (B) prior to the time of such termination a
proposal relating to a Acquisition Transaction had been made; and (C)
on or prior to the six month anniversary of the termination of this
Agreement the Company or any of its subsidiaries or affiliates (x)
enters into an agreement or letter of intent (or if the Company's Board
of Directors resolves or announces an intention to do) with respect to
any Business Combination with any person, entity or group or (y)
consummates any Business Combination with any person, entity or group.
For purposes of this Section 7.6, "Business Combination" means
(i) a merger, consolidation, share exchange, business combination or similar
transaction involving the Company as a result of which the Company stockholders
prior to such transaction in the aggregate cease to own at least 70% of the
voting securities of the entity surviving or resulting from such transaction (or
the ultimate parent entity thereof), (ii) a sale, lease, exchange, transfer or
other disposition of more than 30% of the assets of the Company and its
subsidiaries, taken as a whole, in a single transaction or a series of related
transactions, or (iii) the acquisition, by a person (other than Parent or any
affiliate thereof), group or entity of beneficial ownership (as defined in Rule
13d-3 under the Exchange Act) of more than 30% of the Company Common Stock
whether by tender or exchange offer or otherwise.
Section 7.7 Agreement to Cooperate. (a) Subject to the terms
and conditions herein provided and subject to the fiduciary duties of the
respective boards of directors of the Company and Parent, each of the parties
hereto shall use all reasonable efforts to take, or cause to be taken, all
action and to do, or cause to be done, all things necessary, proper or advisable
under applicable laws and regulations to consummate and make effective the
transactions contemplated by this Agreement, including using its reasonable
efforts to obtain all necessary or appropriate waivers, consents or approvals of
third parties required in order to preserve material contractual relationships
of Parent and the Company and their respective subsidiaries, all necessary or
appropriate waivers, consents and approvals and SEC "no-action" letters to
effect all necessary registrations, filings and submissions and to lift any
injunction or other legal bar to the Merger (and, in such case, to proceed with
the Merger as expeditiously as possible).
(b) Without limitation of the foregoing, each of Parent and
the Company undertakes and agrees to file as soon as practicable, and in any
event prior to 15 days after the date hereof, a Notification and Report Form
under the HSR Act with the Federal Trade Commission (the "FTC") and the
Antitrust Division of the Department of Justice (the "Antitrust Division"). Each
of Parent and the Company shall (i) respond as promptly as practicable to any
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35
inquiries received from the FTC or the Antitrust Division for additional
information or documentation and to all inquiries and requests received from any
State Attorney General or other governmental authority in connection with
antitrust matters and (ii) not extend any waiting period under the HSR Act or
enter into any agreement with the FTC or the Antitrust Division not to
consummate the transactions contemplated by this Agreement, except with the
prior written consent of the other parties hereto. Parent shall take all
reasonable steps necessary to avoid or eliminate impediments under any
antitrust, competition, or trade regulation law that may be asserted by the FTC,
the Antitrust Division, any State Attorney General or any other governmental
entity with respect to the Merger so as to enable the Closing to occur as soon
as reasonably possible. Without limiting the foregoing, Parent shall propose,
negotiate, commit to and effect, by consent decree, hold separate order, or
otherwise, the sale, divestiture or disposition of such assets or businesses of
Parent or, effective as of the Effective Time, the Surviving Corporation as may
be required in order to avoid the entry of, or to effect the dissolution of, any
injunction, temporary restraining order or other order in any suit or
proceeding, which would otherwise have the effect of preventing or delaying the
Closing; provided, however, that Parent shall not be required to take any such
actions if such action would be reasonably likely, in the aggregate, to have a
material adverse effect on the business, operations, properties, assets,
condition (financial or other) or results of operations of the Company and its
subsidiaries taken as a whole, in the case of a sale divestiture, holding
separate or other disposition of assets of the Company or its subsidiaries, or,
in the case of a sale, divestiture, holding separate or other disposition of
assets of the Parent or its subsidiaries, such action with respect to a
comparable amount of assets of the Company would be reasonably likely, in the
aggregate, to have such a material adverse effect. Parent or the Company, as
applicable, shall take promptly, in the event that any permanent or preliminary
injunction or other order is entered or becomes reasonably foreseeable to be
entered in any proceeding that would make consummation of the transactions
contemplated hereby in accordance with the terms of this Agreement unlawful or
that would prevent or delay consummation of the transactions contemplated
hereby, any and all steps necessary to vacate, modify or suspend such injunction
or order so as to permit such consummation prior to the deadline specified in
Section 9.1(a)(ii) or Section 9.1(b)(ii). The parties hereto will consult and
cooperate with one another, and consider in good faith the views of one another,
in connection with any analyses, appearances, presentations, memoranda, briefs,
arguments, opinions and proposals made or submitted by or in behalf of any party
hereto in connection with proceedings under or relating to the HSR Act or any
other federal, state or foreign antitrust or fair trade law. The parties hereto
will provide to the other copies of all correspondence between it (or its
advisors) and the FTC, the Antitrust Division or any State Attorney General
relating to this Agreement or any of the matters described in this Section
7.7(b). The parties hereto agree that all material telephonic calls and meetings
with the FTC, the Antitrust Division or any State Attorney General regarding the
transactions contemplated hereby or any of the matters described in this Section
7.7(b) shall include representatives of each of Parent and the Company. Parent
shall coordinate and be the principal spokesperson in connection with any
proceedings or negotiations with any
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36
governmental entity relating to any of the foregoing, provided that it shall
afford the Company a reasonable opportunity to participate therein.
(c) In the event any litigation is commenced by any person or
entity relating to the transactions contemplated by this Agreement, or any
Acquisition Transaction, Parent shall have the right, at its own expense, to
participate therein, and the Company will not settle any such litigation without
the consent of Parent, which consent will not be unreasonably withheld.
Section 7.8 Public Statements. The parties shall consult with
each other prior to issuing any press release or any written public statement
with respect to this Agreement or the transactions contemplated hereby and shall
not issue any such press release or written public statement prior to such
consultation.
Section 7.9 Option Plans. (a) The Company shall use
commercially reasonable efforts and shall take all necessary actions, including
but not limited to obtaining the consent of the option holders, if necessary, to
ensure that, at the Effective Time, all rights with respect to the Company
Common Stock pursuant to each stock option ("Company Options") granted under
stock option plans of the Company or otherwise which is outstanding on the
Effective Date, whether or not such Company Option has previously vested or
become exercisable, shall be cancelled in exchange for a number of shares of
Parent Common Stock equal in market value (based upon the average of the closing
prices of the Parent Common Stock on the NYSE for the 10 trading days
immediately prior to the Closing Date) to the fair value of such Company Option
as determined by independent third party experts, mutually agreed upon by Parent
and the Company. The parties hereto have agreed that the value determined using
the methodology proposed by such independent third party experts will represent
the fair value of the Company Options as of the Effective Time.
(b) At the Effective Time, automatically and without any
action on the part of the holder thereof, each outstanding Company Option that
was not canceled in accordance with Section 7.9(a) above shall be assumed by
Parent and become an option to purchase that number of shares of Parent Common
Stock obtained by multiplying the number of shares of Company Common Stock
issuable upon the exercise of such option by the Exchange Ratio at an exercise
price per share equal to the per share exercise price of such option divided by
the Exchange Ratio, and otherwise upon the same terms and conditions as such
outstanding Company Options; provided, however, that in the case of any Company
Option to which Section 421 of the Code applies by reason of the qualifications
under Section 422 or 423 of such Code, the exercise price, the number of shares
purchasable pursuant to such Company Option be determined in order to comply
with Section 424(a) of the Code.
(c) Parent shall take all corporate actions necessary to
reserve for issuance a sufficient number of shares of Parent Common Stock for
delivery upon exercise of the Company Options assumed by Parent, if any,
pursuant to Section 7.9(b) above.
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37
(d) As promptly as practicable after the Effective Time,
Parent shall file a Registration Statement on Form S-8 (or any successor or
other appropriate forms) with respect to the shares of Parent Common Stock
subject to the Company Options and shall use its reasonable efforts to maintain
the effectiveness of such registration statement or registration statements (and
maintain the current status of the prospectus or prospectuses contained therein)
for so long as such Company Options remain outstanding.
(e) Except as provided herein or as otherwise agreed to by the
parties, each of the Company stock option plans providing for the issuance or
grant of Company Options shall be assumed as of the Effective Time by Parent
with such amendments thereto as may be required to reflect the Merger.
Section 7.10 Notification of Certain Matters. Each of the
Company, Parent and Subsidiary agrees to give prompt notice to each other of,
and to use commercially reasonable efforts to remedy, (i) the occurrence or
failure to occur of any event which occurrence or failure to occur would be
likely to cause any of its representations or warranties in this Agreement to be
untrue or inaccurate in any material respect at the Effective Time and (ii) any
material failure on its part 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 7.10 shall not
limit or otherwise affect the remedies available hereunder to the party
receiving such notice.
Section 7.11 Directors' and Officers' Indemnification. (a) The
indemnification provisions of the Certificate of Incorporation and By-Laws of
the Surviving Corporation as in effect at the Effective Time shall not be
amended, repealed or otherwise modified for a period of six years from the
Effective Time in any manner that would adversely affect the rights thereunder
of individuals who at the Effective Time were directors, officers, employees or
agents of the Company. Parent shall assume, be jointly and severally liable for,
and honor, guaranty and stand surety for, and shall cause the Surviving
Corporation to honor, in accordance with their respective terms each of the
covenants contained in this Section 7.11 and each of the indemnification
agreements listed on Section 7.11 of the Company Disclosure Schedule without
limit as to time; provided, however, in the event of a conflict between the
provisions of this Section 7.11 and the provisions of an indemnification
agreement listed on Section 7.11 of the Company Disclosure Schedule, the
provisions of such indemnification agreement shall govern.
(b) After the Effective Time, each of Parent and the Surviving
Corporation shall, to the fullest extent permitted under applicable law,
indemnify and hold harmless, each present and former director, officer, employee
and agent of the Company or any of its subsidiaries (each, together with such
person's heirs, executors or administrators, an "indemnified Party" and
collectively, the "indemnified Parties") against any costs or expenses
(including attorneys fees), judgments, fines, losses, claims, damages,
liabilities and amounts paid in settlement in connection with any actual or
threatened claim, action, suit, proceeding or investigation, whether civil,
criminal, administrative or investigative, arising out of, relating to or in
connection with any action
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38
or omission occurring or alleged to occur prior to the Effective Time
(including, without limitation, acts or omissions in connection with this
Agreement and the consummation of transactions contemplated hereunder and acts
or omissions in connection with such persons serving as an officer, director or
other fiduciary in any entity if such service was at the request or for the
benefit of the Company) or arising out of or pertaining to the transactions
contemplated by this Agreement. In the event of any such actual or threatened
claim, action, suit, proceeding or investigation (whether arising before or
after the Effective Time), (i) the Company or Parent and the Surviving
Corporation, as the case may be, shall pay the reasonable fees and expenses of
counsel selected by the indemnified Parties, which counsel shall be reasonably
satisfactory to the Parent and the Surviving Corporation, promptly after
statements therefor are received and shall pay all other reasonable expenses in
advance of the final disposition of such action, (ii) the Parent and the
Surviving Corporation will cooperate and use all reasonable efforts to assist in
the vigorous defense of any such matter, and (iii) to the extent any
determination is required to be made with respect to whether an indemnified
Party's conduct complies with the standards set forth under the DGCL and the
Parent's or the Surviving Corporation's respective charters or by-laws such
determination shall be made by independent legal counsel acceptable to the
Parent or the Surviving Corporation, as the case may be, and the indemnified
Party; provided, however, that neither the Parent nor the Surviving Corporation
shall be liable for any settlement effected without its written consent (which
consent shall not be unreasonably withheld) and provided further that if Parent
or the Surviving Corporation advances or pays any amount to any person under
this paragraph (b) and if it shall thereafter be finally determined by a court
of competent jurisdiction that such person was not entitled to be indemnified
hereunder for all or any portion of such amount, to the extent required by law,
such person shall repay such amount or such portion thereof, as the case may be,
to Parent or the Surviving Corporation, as the case may be. The indemnified
Parties as a group may not retain more than one law firm to represent them with
respect to each matter 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.
(c) In the event the Surviving Corporation or Parent or any of
their successors or assigns (i) consolidates with or merges into any other
person and shall not be the continuing or surviving corporation or entity of
such consolidation or merger or (ii) transfers all or substantially all of its
properties and assets to any person, then and in each such case, proper
provisions shall be made so that the successors and assigns of the Surviving
Corporation or Parent shall assume the obligations of the Surviving Corporation
or the Parent, as the case may be, as set forth in this Section 7.11.
(d) For a period of six years after the Effective Time, Parent
shall cause to be maintained in effect the current policies of directors' and
officers' liability insurance maintained by the Company and its subsidiaries
(provided that Parent may substitute therefor policies of at least the same
coverage and amounts containing terms and conditions that are no less
advantageous to the indemnified Parties and which coverages and amounts shall be
no less than the coverages and amounts provided at that time for Parent's
directors and officers provided that there shall be no lapse of coverage) with
respect to matters arising on or before the Effective Time and acts or
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39
omissions in connection with this Agreement and the consummation of the
transactions contemplated hereunder.
(e) Parent shall pay all reasonable expenses, including
reasonable attorneys' fees, that may be incurred by any indemnified Party in
enforcing the indemnity and other obligations provided in this Section 7.11.
(f) The rights of each indemnified Party hereunder shall be in
addition to, and not in limitation of, any other rights such indemnified Party
may have under the charter or bylaws of the Company, any indemnification
agreement, under the DGCL or otherwise. The provisions of this Section 7.11
shall survive the consummation of the Merger and expressly are intended to
benefit each of the indemnified Parties.
Section 7.12 Corrections to the Proxy Statement/Prospectus and
Registration Statement. Prior to the date of approval of the Merger by their
respective stockholders, each of the Company, Parent and Subsidiary shall
correct promptly any information provided by it to be used specifically in the
Proxy Statement/Prospectus and Registration Statement that shall have become
false or misleading in any material respect and shall take all steps necessary
to file with the SEC and have declared effective or cleared by the SEC any
amendment or supplement to the Proxy Statement/Prospectus or the Registration
Statement so as to correct the same and to cause the Proxy Statement/Prospectus
as so corrected to be disseminated to the stockholders of the Company and
Parent, in each case to the extent required by applicable law.
Section 7.13. Assumption of Registration Rights Agreements.
The Company will use reasonable best efforts to ensure that Parent and
Subsidiary shall have no obligation to register any securities of the Surviving
Corporation after the Effective Time.
Section 7.14. Company Employees. Prior to the Effective Time,
neither Parent nor any subsidiary of Parent or any affiliate of Parent or any of
its subsidiaries shall offer to employ or employ any salaried managerial or
professional employee of Company or any of its subsidiaries, if such employment
would begin prior to the Effective Time, without the prior written consent of
Company.
ARTICLE VIII
CONDITIONS
Section 8.1 Conditions to Each Party's Obligation to Effect
the Merger. The respective obligations of each party to effect the Merger shall
be subject to the fulfillment at or prior to the Closing Date of the following
conditions:
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(a) this Agreement and the transactions contemplated hereby
shall have been approved and adopted by the requisite vote of the
stockholders of the Company under applicable law and applicable listing
requirements;
(b) the shares of Parent Common Stock issuable in the Merger
and those to be reserved for issuance upon exercise of stock options or
warrants shall have been authorized for listing on the NYSE upon
official notice of issuance;
(c) the waiting period applicable to the consummation of the
Merger under the HSR Act shall have expired or been terminated;
(d) the Registration Statement shall have become effective in
accordance with the provisions of the Securities Act, and no stop order
suspending such effectiveness shall have been issued and remain in
effect and no proceeding for that purpose shall have been instituted by
the SEC or any state regulatory authorities;
(e) no preliminary or permanent injunction or other order or
decree by any federal or state court which prevents the consummation of
the Merger shall have been issued and remain in effect (each party
agreeing to use its reasonable efforts to have any such injunction,
order or decree lifted);
(f) no statute, rule or regulation shall have been enacted by
any state or federal government or governmental agency in the United
States which would prevent the consummation of the Merger or make the
Merger illegal;
(g) all governmental waivers, consents, orders and approvals
legally required for the consummation of the Merger and the
transactions contemplated hereby shall have been obtained and be in
effect at the Effective Time, except where the failure to obtain the
same would not be reasonably likely, individually or in the aggregate,
to have a material adverse effect on the business, operations,
properties, assets, liabilities, condition (financial or other) or
results of operations of the Company and its subsidiaries, taken as a
whole, following the Effective Time;
(h) the certified public accountants for Parent, shall have
delivered a letter, dated the Closing Date, addressed to Parent, in
form and substance reasonably satisfactory to Parent, to the effect
that the Merger will qualify for a pooling of interests accounting
treatment if consummated in accordance with this Agreement; and
(i) each of the parties to the Agreement shall have received a
letter dated the Closing Date, addressed to the Company, from Ernst &
Young LLP regarding such firm's concurrence with the Company's
management's conclusions that no conditions exist related to the
Company that would preclude the Parent's accounting for the Merger with
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41
the Company as a pooling of interests under Accounting Principles Board
Opinion No. 16 if closed and consummated in accordance with this
Agreement.
Section 8.2 Conditions to Obligation of the Company to Effect
the Merger. Unless waived by the Company, the obligation of the Company to
effect the Merger shall be subject to the fulfillment at or prior to the Closing
Date of the following additional conditions:
(a) Parent and Subsidiary shall have performed their
agreements contained in this Agreement required to be performed on or
prior to the Closing Date and the representations and warranties of
Parent and Subsidiary contained in this Agreement shall be true and
correct on and as of the date made and (except to the extent that such
representations and warranties speak as of an earlier date) on and as
of the Closing Date as if made at and as of such date except for such
failures to perform or to be true and correct that have not and would
not, in the aggregate, reasonably be expected to have a material
adverse effect on the business operations, properties, assets,
condition (financial or other) or results of operations of Parent and
its subsidiaries considered as a whole (except for representations and
warranties that contain materiality or material adverse effect
qualifications which representations and warranties shall be true and
correct in all respects), and the Company shall have received a
certificate of the Chairman of the Board and Chief Executive Officer,
the President or a Vice President of Parent and of the President and
Chief Executive Officer or a Vice President of Subsidiary to that
effect;
(b) the Company shall have received an opinion of Drinker
Biddle & Reath LLP, in form and substance reasonably satisfactory to
the Company, dated the Closing Date, substantially to the effect that,
on the basis of facts, representations and assumptions set forth in
such opinion, which are consistent with the state of facts existing at
the Effective Time: (i) the Merger will constitute a reorganization
within the meaning of Section 368(a) of the Code, (ii) no gain or loss
will be recognized by Parent, the Company or Subsidiary as a result of
the Merger, and (iii) no gain or loss will be recognized by the holders
of Company Common Stock upon the exchange of their Company Common Stock
solely for shares of Parent Common Stock (except with respect to cash
received in lieu of fractional shares of Parent Common Stock). In
rendering such opinion, such counsel may rely upon representations
contained in certificates of officers and certain stockholders of
Parent, the Company and Subsidiary.
Section 8.3 Conditions to Obligations of Parent and Subsidiary
to Effect the Merger. Unless waived by Parent and Subsidiary, the obligations of
Parent and Subsidiary to effect the Merger shall be subject to the fulfillment
at or prior to the Effective Time of the additional following conditions:
(a) the Company shall have performed its agreements contained
in this Agreement required to be performed on or prior to the Closing
Date and the representations and warranties of the Company contained in
this Agreement shall be true
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42
and correct on and as of the date made and (except to the extent that
such representations and warranties speak as of an earlier date) on and
as of the Closing Date as if made at and as of such date, except for
such failures to perform and to be true and correct that have not and
would not, in the aggregate, reasonably be expected to have a material
adverse effect on the business, operations, properties, assets,
condition (financial or other) or results of operations of the Company
and its subsidiaries considered as a whole (except for representations
and warranties that contain materiality or material adverse effect
qualifications which representations and warranties shall be true and
correct in all respects), and Parent shall have received a Certificate
of the President and Chief Executive Officer or of a Vice President of
the Company to that effect;
(b) Parent shall have received an opinion of Shearman &
Sterling, in form and substance reasonably satisfactory to Parent,
dated the Closing Date, substantially to the effect that, on the basis
of facts, representations and assumptions set forth in such opinion,
which are consistent with the state of facts, existing at the Effective
Time: (i) the Merger will constitute a reorganization within the
meaning of Section 368 of the Code and (ii) Parent and Subsidiary will
recognize no gain or loss for federal income tax purposes as a result
of consummation of the Merger. In rendering such opinion, such counsel
may rely upon representations contained in certificates of officers and
certain stockholders of Parent, the Company and Subsidiary; and
(c) all consents, approvals or waivers from the Company's
lenders required to consummate the Merger, shall have been obtained and
be in effect at the Effective Time, except where the failure to obtain
the same would not be reasonably likely, individually or in the
aggregate, to have a material adverse effect on the business,
operations, properties, assets, liabilities, condition (financial or
other) or results of operations of the Company and its subsidiaries,
taken as a whole, following the Effective Time.
ARTICLE IX
TERMINATION, AMENDMENT AND WAIVER
Section 9.1 Termination. This Agreement may be terminated at
any time prior to the Closing Date, whether before or after approval by the
stockholders of the Company or Parent, by the mutual written consent of the
Company and Parent or as follows:
(a) The Company shall have the right to terminate this
Agreement:
(i) upon a material breach of a representation or
warranty of Parent contained in this Agreement which has not
been cured in all material respects and which has caused any
of the conditions set forth in section 8.2(a) to be incapable
of being satisfied by the Termination Date;
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(ii) if the Merger is not completed by March 31, 1999
(the "Termination Date") (unless due to a delay or default on
the part of the Company);
(iii) if the Merger is enjoined by a final,
unappealable court order not entered at the request or with
the support of the Company and if the Company shall have used
reasonable efforts to prevent the entry of such order;
(iv) if the Company receives a Superior Proposal,
resolves to accept such Superior Proposal, and the Company
shall have given Parent two days' prior written notice of its
intention to terminate pursuant to this provision; provided,
however, that such termination shall not be effective until
such time as the payment required by Section 7.6(b) shall have
been received by Parent;
(v) if (A) a tender or exchange offer is commenced by
a Potential Acquirer (excluding any affiliate of the Company
or any group of which any affiliate of the Company is a
member) for all outstanding shares of Company Common Stock,
(B) the Company's Board of Directors determines, in good faith
and after consultation with an independent financial advisor,
that such offer constitutes a Superior Proposal and resolves
to accept such Superior Proposal or recommend to the
stockholders that they tender their shares in such tender or
exchange offer and (C) the Company shall have given Parent two
days' prior written notice of its intention to terminate
pursuant to this provision; provided, however, that such
termination shall not be effective until such time as the
payment required by Section 7.6(b) shall have been received by
Parent; or
(vi) if Parent (A) fails to perform in any material
respect any of its material covenants in this Agreement and
(B) does not cure such default in all material respects within
30 days after written notice of such default specifying such
default in reasonable detail is given to Parent by the
Company.
(b) Parent shall have the right to terminate this Agreement:
(i) upon a material breach of a representation or
warranty of the Company contained in this Agreement which has
not been cured in all material respects and which has caused
any of the conditions set forth in Section 8.3(a) to be
incapable of being satisfied by the Termination Date;
(ii) if the Merger is not completed by March 31, 1999
(unless due to a delay or default on the part of Parent);
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44
(iii) if the Merger is enjoined by a final,
unappealable court order not entered at the request or with
the support of Parent and if Parent shall have used reasonable
efforts to prevent the entry of such order;
(iv) if the Board of Directors of the Company shall
have resolved to accept a Superior Proposal or shall have
recommended to the stockholders of the Company that they
tender their shares in a tender or an exchange offer commenced
by a third party (excluding any affiliate of Parent or any
group of which any affiliate of Parent is a member);
(v) if the Company (A) fails to perform in any
material respect any of its material covenants in this
Agreement and (B) does not cure such default in all material
respects within 30 days after written notice of such default
specifying such default in reasonable detail is given to the
Company by Parent; or
(vi) if the stockholders of the Company fail to
approve the Merger at a duly held meeting of stockholders
called for such purpose or any adjournment or postponement
thereof.
(c) As used in this Section 9.1, (i) "affiliate" has the
meaning assigned to it in Section 7.4 and (ii) "group" has the meaning
set forth in Section 13(d) of the Exchange Act and the rules and
regulations thereunder.
Section 9.2 Effect of Termination. In the event of termination
of this Agreement by either Parent or the Company pursuant to the provisions of
Section 9.1, this Agreement shall forthwith become void and there shall be no
liability or further obligation on the part of the Company, Parent, Subsidiary
or their respective officers or directors (except in this Section 9.2, the
second sentence of Section 7.1(a), Section 7.1(b), Section 7.6 and Section 10.4
shall survive the termination). Nothing in this Section 9.2 shall relieve any
party from liability for any willful and intentional breach of any covenant or
agreement of such party contained in this Agreement.
Section 9.3 Amendment. This Agreement may not be amended
except by action taken by the parties' respective Boards of Directors or duly
authorized committees thereof and then only by an instrument in writing signed
on behalf of each of the parties hereto and in compliance with applicable law.
Such amendment may take place at any time prior to the Closing Date, and,
subject to applicable law, whether before or after approval by the stockholders
of the Company, Parent or Subsidiary.
Section 9.4 Waiver. At any time prior to the Effective Time,
the parties hereto may (a) extend the time for the performance of any of the
obligations or other acts of the other parties hereto, (b) waive any
inaccuracies in the representations and warranties contained herein or in any
document delivered pursuant thereto and (c) waive compliance with any of the
agreements or conditions contained herein. Any agreement on the part of a party
hereto to any
<PAGE>
45
such extension or waiver shall be valid only if set forth in an instrument in
writing signed on behalf of such party.
ARTICLE X
GENERAL PROVISIONS
Section 10.1 Non-Survival of Representations and Warranties.
No representations, warranties or agreements in this Agreement or in any
instrument delivered pursuant to this Agreement shall survive the Merger, and
after effectiveness of the Merger neither the Company, Parent, Subsidiary or
their respective officers or directors shall have any further obligation with
respect thereto except for the representations, warranties and agreements
contained in Articles II, III and X, Section 7.9, Section 7.11, and Section
7.13.
Section 10.2 Notices. All notices and other communications
hereunder shall be in writing and shall be deemed given if delivered personally,
mailed by registered or certified mail (return receipt requested) or sent via
facsimile to the parties at the following addresses (or at such other address
for a party as shall be specified by like notice):
(a) If to Parent or Subsidiary to:
Waste Management, Inc.
1001 Fannin, Suite 4000
Houston, TX 77002
Attn: Gregory T. Sangalis
with a copy to:
Shearman & Sterling
599 Lexington Avenue
New York, NY 10022
Attn: John A. Marzulli, Jr.
(b) If to the Company, to:
Eastern Environmental Services, Inc.
1000 Crawford Place
Mt. Laurel, NJ 08054
Attn: Robert M. Kramer
<PAGE>
46
with a copy to:
Drinker Biddle & Reath LLP
1345 Chestnut Street, Suite 110
Philadelphia, PA 19107-3496
Attn: H. John Michel, Jr.
Section 10.3 Interpretation. 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. In this Agreement, unless a
contrary intention appears, (i) the words "herein", "hereof" and "hereunder" and
other words of similar import refer to this Agreement as a whole and not to any
particular Article, Section or other subdivision and (ii) reference to any
Article or Section means such Article or Section hereof. No provision of this
Agreement shall be interpreted or construed against any party hereto solely
because such party or its legal representative drafted such provision.
Section 10.4 Miscellaneous. This Agreement (including the
documents and instruments referred to herein) (a) constitutes the entire
agreement and supersedes all other prior agreements and understandings, both
written and oral, among the parties, or any of them, with respect to the subject
matter hereof, (b) shall not be assigned by operation of law or otherwise,
except that Subsidiary may assign this Agreement to any other wholly-owned
subsidiary of Parent. THIS AGREEMENT SHALL BE GOVERNED IN ALL RESPECTS,
INCLUDING VALIDITY, INTERPRETATION AND EFFECT, BY THE LAWS OF THE STATE OF
DELAWARE APPLICABLE TO CONTRACTS EXECUTED AND TO BE PERFORMED WHOLLY WITHIN SUCH
STATE. THE EXCLUSIVE VENUE FOR THE ADJUDICATION OF ANY DISPUTE OR PROCEEDING
ARISING OUT OF THIS AGREEMENT OR THE PERFORMANCE THEREOF SHALL BE THE COURTS
LOCATED IN THE STATE OF DELAWARE AND THE PARTIES HERETO AND THEIR AFFILIATES
EACH CONSENT TO AND HEREBY SUBMIT TO THE JURISDICTION OF ANY COURT LOCATED IN
THE STATE OF DELAWARE.
Section 10.5 Counterparts. This Agreement may be executed in
two or more counterparts, each of which shall be deemed to be an original, but
all of which shall constitute one and the same agreement.
Section 10.6 Parties in Interest. This Agreement shall be
binding upon and inure solely to the benefit of each party hereto, and except as
set forth in Sections 2.1, 2.2, 3.3, 7.9, 7.11 and 7.13 (which are intended to
and shall create third party beneficiary rights if the Merger is consummated),
nothing in this Agreement, express or implied, is intended to confer upon any
other person any rights or remedies of any nature whatsoever under or by reason
of this Agreement. The rights of any third party beneficiary hereunder are not
subject to any defense, offset or counterclaim.
<PAGE>
47
IN WITNESS WHEREOF, Parent, Subsidiary and the Company have
caused this Agreement to be signed by their respective officers and attested to
as of the date first written above.
WASTE MANAGEMENT, INC.
Attest:
/s/ Gregory T. Sangalis By: /s/ John E. Drury
- ----------------------- ------------------------------------
Secretary Name: John E. Drury
Title: Chairman and Chief Executive
Officer
OCHO ACQUISITION CORPORATION
Attest:
/s/ Earl E. DeFrates By: /s/ Gregory T. Sangalis
- ----------------------- ------------------------------------
Executive Vice President Name: Gregory T. Sangalis
and Chief Financial Officer Title: Senior Vice President
and Secretary
EASTERN ENVIRONMENTAL SERVICES, INC.
Attest:
/s/ Robert M. Kramer By: /s/ Louis D. Paolino, Jr.
- ----------------------- ------------------------------------
Secretary Name: Louis D. Paolino, Jr.
Title: Chairman, President and Chief
Executive Officer
Exhibit 99.2
STOCKHOLDERS SUPPORT AGREEMENT
STOCKHOLDERS SUPPORT AGREEMENT, dated as of August 16, 1998
(this "Agreement"), among WASTE MANAGEMENT, INC., a Delaware corporation
("Parent"), OCHO ACQUISITION CORPORATION, a Delaware corporation and a wholly
owned subsidiary of Parent ("Subsidiary"), and the stockholders whose names
appear on the signature pages of this Agreement (each a "Stockholder" and
collectively the "Stockholders").
WHEREAS, as of the date hereof, the Stockholders own of record
or has the power to vote the number of shares of Common Stock, par value $.01
per share ("Company Common Stock"), of Services Inc., a Delaware corporation
(the "Company ") as set forth opposite such Stockholder's name on Exhibit A
hereto (all such Company Common Stock and any shares of Company Common Stock of
which ownership of record or the power to vote is hereafter acquired by the
Stockholders prior to the termination of this Agreement being referred to herein
as the "Shares");
WHEREAS, Parent, Subsidiary and the Company propose to enter
into (i) an Agreement and Plan of Merger, dated as of even date herewith (as the
same may be amended from time to time, the "Merger Agreement"), which provides,
upon the terms and subject to the conditions thereof, for the merger of
Subsidiary with and into the Company (the "Merger") and (ii) an agreement
granting Parent an option on certain shares of Company Common Stock (the "Stock
Option Agreement"); and
WHEREAS, as a condition to the willingness of Parent to enter
into the Merger Agreement, Parent has requested that the Stockholders agree,
and, in order to induce Parent to enter into the Merger Agreement, the
Stockholders have agreed, jointly and severally, to enter into this Agreement;
NOW, THEREFORE, in consideration of the premises and of the
mutual agreements and covenants set forth herein and in the Merger Agreement,
and intending to be legally bound hereby, the parties hereto hereby agree as
follows:
ARTICLE I
TRANSFER AND VOTING OF SHARES
SECTION 1.01. Transfer of Shares. No Stockholder shall,
directly or indirectly, (a) sell (other than pursuant to any brokers'
transaction executed upon the
<PAGE>
Stockholder's orders on any exchange or in the over the counter market), pledge
(other than in connection with margin accounts maintained by such Stockholder)
or otherwise dispose of any or all of such Stockholder's Shares, (b) deposit any
Shares into a voting trust or enter into a voting agreement or arrangement with
respect to any Shares or grant any proxy with respect thereto or (c) enter into
any contract, option or other arrangement or undertaking with respect to the
direct or indirect acquisition or sale (other than pursuant to any brokers'
transaction executed upon the Stockholder's orders on any exchange or in the
over the counter market), assignment, transfer or other disposition of any
Shares.
SECTION 1.02. Voting of Shares; Further Assurances. (a) Each
Stockholder, by this Agreement, with respect to the Shares set out in Exhibit A
hereto and any Shares hereinafter acquired by such Stockholder, does hereby
constitute and appoint Subsidiary, or any nominee of Subsidiary, with full power
of substitution, as his, her or its true and lawful attorney and proxy, for and
in his, her or its name, place and stead, to vote each of such Shares as his,
her or its proxy, at every annual, special or adjourned meeting of the
stockholders of the Company (including the right to sign his, her or its name
(as stockholder) to any consent, certificate or other document relating to the
Company that may be permitted or required by applicable law) (i) in favor of the
adoption of the Merger Agreement and approval of the Merger and the other
transactions contemplated by the Merger Agreement, (ii) against any transaction
pursuant to an Acquisition Proposal (as defined below) or any other action or
agreement that would result in a breach of any covenant, representation or
warranty or any other obligation or agreement of the Company under the Merger
Agreement or which could result in any of the conditions to the Company's
obligations under the Merger Agreement not being fulfilled, and (iii) in favor
of any other matter relating to consummation of the transactions contemplated by
the Merger Agreement. Each Stockholder further agrees to cause the number of
Shares as set forth opposite such Stockholder's name in Exhibit A hereto and all
Shares over which he has voting power to be voted in accordance with the
foregoing. Each Stockholder acknowledges receipt and review of a copy of the
Merger Agreement.
(b) Each Stockholder shall perform such further acts and
execute such further documents and instruments as may reasonably be required to
vest in Subsidiary the power to carry out the provisions of this Agreement.
(c) The obligations of the Stockholders pursuant to this
Article I shall terminate upon the earlier of (i) the Effective Time (as defined
in the Merger Agreement) (ii) (x) 180 days after the termination of the Merger
Agreement in case of termination that entitles Parent to a fee under Section 7.6
of the Merger Agreement, or (y) on the date of termination in the case of
termination for any other reason.
2
<PAGE>
ARTICLE II
REPRESENTATIONS AND WARRANTIES; COVENANTS OF THE STOCKHOLDER
The Stockholders hereby severally represent and warrant and
covenant to Subsidiary as follows:
SECTION 2.01. Organization; Authorization. (a) Such
Stockholder, if it is a corporation, is a corporation duly organized, validly
existing and in good standing under the laws of the jurisdiction of its
incorporation and has the requisite power and authority and all necessary
governmental approvals to own, lease and operate its properties and to carry on
its business as it is now being conducted, except where the failure to be so
organized, existing or in good standing or to have such power, authority and
governmental approvals would not prevent or delay the performance in any
material respect by such Stockholder of its obligations under this Agreement.
The execution and delivery of this Agreement and the consummation of the
transactions contemplated hereby have been duly authorized by all necessary
corporate action on the part of each Stockholder.
(b) Such Stockholder, if it is a limited partnership, (i) is a
limited partnership duly organized, validly existing and in good standing under
the laws of the jurisdiction of its organization, (ii) has all requisite
partnership power and authority to execute and deliver this Agreement and to
consummate the transactions contemplated hereby and (iii) the execution and
delivery of this Agreement and the consummation of the transactions contemplated
hereby have been duly authorized by all necessary action on the part of such
Stockholder, except, with respect to clauses (i) and (ii) above, where the
failure to be so organized, existing or in good standing or to have such power
and authority would not prevent or delay in any material respect performance by
such Stockholder of its obligations under this Agreement.
(c) Such Stockholder, if it is a trust, (i) is duly formed as
a trust under the laws of the jurisdiction of its formation and its trust
agreement is valid and in full force and effect, (ii) has all requisite power
and authority under its trust instruments to execute and deliver this Agreement
and to consummate the transactions contemplated hereby and (iii) the execution
and delivery of this Agreement and the consummation of the transactions
contemplated hereby have been duly authorized by all necessary action on the
part of such Stockholder, except, with respect to clauses (i) and (ii) above,
where the failure to be so formed or to have such power and authority would not
prevent or delay in any material respect performance by such Stockholder of its
obligations under this Agreement.
(d) Such Stockholder, if it is an individual, has all legal
capacity to execute and deliver this Agreement and to consummate the
transactions contemplated hereby.
3
<PAGE>
(e) This Agreement has been duly executed and delivered by or
on behalf of each Stockholder and, assuming its due authorization, execution and
delivery by Purchaser, constitutes a legal, valid and binding obligation of each
Stockholder, enforceable against each Stockholder in accordance with its terms.
SECTION 2.02. No Conflict; Required Filings and Consents. (a)
The execution and delivery of this Agreement by such Stockholder do not, and the
performance of this Agreement by such Stockholder will not, (i) conflict with or
violate the Certificate of Incorporation or By-laws or equivalent organizational
documents of such Stockholder (if any), (ii) conflict with or violate any law,
rule, regulation, order, judgment or decree applicable to such Stockholder or by
which it or any of its, his or her 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 give to another party
any rights of termination, amendment, acceleration or cancellation of, or result
in the creation of a lien or encumbrance on any of the property or assets of
such Stockholder, including, without limitation, the Shares, pursuant to, any
note, bond, mortgage, indenture, contract, agreement, lease, license, permit,
franchise or other instrument or obligation to which such Stockholder is a party
or by which such Stockholder or any of its, his or her properties is bound or
affected, except for any such breaches, defaults or other occurrences that would
not prevent or delay the performance by such Stockholder of its obligations
under this Agreement. There is no beneficiary or holder of a voting trust
certificate or other interest of any trust of which the Stockholder is a trustee
whose consent is required for the execution and delivery of this Agreement or
the consummation by the Stockholder of the transactions contemplated by this
Agreement.
(b) The execution and delivery of this Agreement by such
Stockholder do not, and the performance of this Agreement by such Stockholder
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
Exchange Act of 1934, as amended (the "Exchange Act") and the Hart-Scott-Rodino
Antitrust Improvement Act of 1976 and the rules and regulations promulgated
thereunder (the "HSR Act") and (ii) where the failure to obtain such consents,
approvals, authorizations or permits, or to make such filings or notifications,
would not prevent or materially delay the performance by such Stockholder of his
or its obligations under this Agreement.
SECTION 2.03. Title to Shares. Such Stockholder is the record
or beneficial owner of its Shares free and clear of any proxy or voting
restriction other than pursuant to this Agreement. Such Shares are all the
securities of the Company owned of record or beneficially by such Stockholder on
the date of this Agreement.
SECTION 2.04 Acquisition Proposals. Until the termination of
the Merger Agreement the Stockholder shall not, initiate, solicit, negotiate,
encourage or provide
4
<PAGE>
nonpublic or confidential information to facilitate, any proposal or offer to
acquire all or any substantial part of the business or properties of the Company
or any capital stock of the Company, whether by merger, purchase of assets,
tender offer or otherwise, whether for cash, securities or any other
consideration or combination thereof (any such transactions being referred to
herein as an "Acquisition Transaction") or participate in any negotiations
regarding, or furnish to any other person or entity any information with respect
to, or otherwise cooperate in any way with, or assist or participate in,
facilitate or encourage, any effort or attempt by any other person to do or seek
any of the foregoing; provided, however, that nothing in this Section 2.04 shall
prevent the Stockholder, in his capacity as a director or executive officer of
the Company from engaging in any activity permitted pursuant to Section 6.5 of
the Merger Agreement. From and after the execution of this Agreement, the
Stockholder shall promptly (but in any event within 48 hours) notify Parent
after receipt of any unsolicited written offer or proposal with respect to a
potential or proposed Acquisition Transaction ("Acquisition Proposal"),
indication of interest or request for nonpublic information relating to the
Company or its subsidiaries in connection with an Acquisition Proposal that the
Stockholder receives in his capacity as a Stockholder of the Company. Such
notice to Subsidiary shall be made orally and in writing and shall indicate in
reasonable detail the identity of the offeror and the terms and conditions of
such proposal, inquiry or contact.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF PARENT
Parent hereby represents and warrants to the Stockholders as
follows:
SECTION 3.01. Due Organization; Binding Agreement. Each of
Parent and Subsidiary is duly organized and validly existing under the laws of
the State of Delaware. Each of Parent and Subsidiary has all necessary corporate
power and authority to execute and deliver this Agreement and to consummate the
transactions contemplated hereby. The execution and delivery of this Agreement
and the consummation of the transactions contemplated hereby by Parent and
Subsidiary have been duly authorized by all necessary corporate action on the
part of each of Parent and Subsidiary. This Agreement has been duly executed and
delivered by each of Parent and Subsidiary and, assuming its due authorization,
execution and delivery by the Stockholders, constitutes a legal, valid and
binding obligation of each of Parent and Subsidiary, enforceable against each of
Parent and Subsidiary in accordance with its terms.
SECTION 3.02. No Conflict; Required Filings and Consents. (a)
The execution and delivery of this Agreement by Parent and Subsidiary does not,
and the performance of this Agreement by Parent and Subsidiary will not, (i)
conflict with or violate
5
<PAGE>
the organizational documents of either Parent or Subsidiary, (ii) conflict with
or violate any law, rule, regulation, order, judgment or decree applicable to
Parent or Subsidiary or by which Parent or Subsidiary or any property of Parent
or Subsidiary 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 give to others any rights of termination,
amendment, acceleration or cancellation of, or result in the creation of a lien
or encumbrance on any of the property or assets of Parent or Subsidiary pursuant
to, any note, bond, mortgage, indenture, contract, agreement, lease, license,
permit, franchise or other instrument or obligation to which Parent or
Subsidiary is a party or by which it or any property of Parent or Subsidiary is
bound or affected, except for any such breaches, defaults or other occurrences
that would not prevent or materially delay the performance by Parent or
Subsidiary of their obligations under this Agreement.
(b) The execution and delivery of this Agreement by Parent and
Subsidiary do not, and the performance of this Agreement by Parent and
Subsidiary 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
Exchange Act and the HSR Act and (ii) where the failure to obtain such consents,
approvals, authorizations or permits, or to make such filings or notifications,
would not prevent or delay the performance by Parent or Subsidiary of their
obligations under this Agreement.
ARTICLE IV
GENERAL PROVISIONS
SECTION 4.01. Notices. All notices and other communications
given or made pursuant hereto shall be in writing and shall be given (and shall
be deemed to have been duly given upon receipt) by delivery in person, by cable,
telecopy, telegram or telex or by registered or certified mail (postage prepaid,
return receipt requested) to the respective parties at the following addresses
(or at such other address as shall be specified by notice given in accordance
with this Section 4.01):
(a) if to Parent or Subsidiary:
Waste Management, Inc.
1001 Fannin Street, Suite 4000
Houston, Texas 77002
Attention:
6
<PAGE>
with a copy to:
Shearman & Sterling
599 Lexington Avenue
New York, New York 10022
Facsimile No: (212) 848-7179
Attention: John A. Marzulli, Jr., Esq.
(b) If to Stockholders to:
Eastern Environmental Services, Inc.
1000 Crawford Place
Mt. Laurel, New Jersey 08054
Attention: Robert Kramer
with a copy to:
Drinker Biddle & Reath LLP
1345 Chestnut Street, Suite 110
Philadelphia, PA 1910-3496
Attention: H. John Michel, Jr.
SECTION 4.02. 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 4.03. 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 to the fullest extent
permitted by applicable law in an acceptable manner to the end that the
transactions contemplated hereby are fulfilled to the extent possible.
SECTION 4.04. Entire Agreement. This Agreement constitutes the
entire agreement of the parties and supersedes all prior agreements and
undertakings, both written and oral, between the parties, or any of them, with
respect to the subject matter hereof.
7
<PAGE>
SECTION 4.05. Assignment. This Agreement shall not be assigned
by operation-of law or otherwise.
SECTION 4.06. 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
person any right, benefit or remedy of any nature whatsoever under or by reason
of this Agreement.
SECTION 4.07. Specific Performance. The parties hereto agree
that irreparable damage would occur in the event any provision of this Agreement
was not performed in accordance with the terms hereof and that the parties shall
be entitled to specific performance of the terms hereof, in addition to any
other remedy at law or in equity.
SECTION 4.08. Governing Law. This Agreement shall be governed
by, and construed in accordance with, the laws of the State of Delaware
applicable to contracts executed in and to be performed in that State. All
actions and proceeding arising out of or relating to this Agreement shall be
heard and determined in any Delaware state or federal court. THE STOCKHOLDERS
AND SUBSIDIARY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE ANY RIGHT THEY MAY
HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED ON, ARISING OUT OF,
UNDER OR IN CONNECTION WITH, THIS AGREEMENT, OR ANY COURSE OF CONDUCT, COURSE OF
DEALING, STATEMENT (VERBAL OR WRITTEN) OR ACTION OF THE STOCKHOLDERS OR
SUBSIDIARY.
SECTION 4.09. 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.
8
<PAGE>
IN WITNESS WHEREOF, the parties have executed this Agreement
as of the date first written above.
WASTE MANAGEMENT, INC.
By: /s/ John E. Drury
----------------------------------
Name: John E. Drury
Title: Chief Executive Officer
OCHO ACQUISITION CORPORATION
By: /s/ Gregory T. Sangalis
----------------------------------
Name: Gregory T. Sangalis
Title: Senior Vice President
and Secretary
STOCKHOLDERS
/s/ Willard Miller
--------------------------------------
Willard Miller
/s/ Louis D. Paolino, Jr.
--------------------------------------
Louis D. Paolino, Jr.
/s/ Glen Miller
--------------------------------------
Glen Miller
/s/ George O. Moorehead
--------------------------------------
George O. Moorehead
/s/ Robert M. Kramer
--------------------------------------
Robert M. Kramer
/s/ Gregory M. Krzemien
--------------------------------------
Gregory M. Krzemien
9
<PAGE>
EXHIBIT A
LIST OF STOCKHOLDERS
Number of Shares of Company
Common Stock owned Beneficially
Name of Stockholder and of Record*
------------------- -------------------------------
1. Willard Miller 1,298,781
2. Louis D. Paolino, Jr. 940,074
3. Glen Miller 1,037,895
4. George O. Moorehead 357,297
5. Robert M. Kramer 50,000
6. Gregory M. Krzemien 101,885
- -----------------
* Some of these numbers are approximate. Exact numbers will be provided as
soon as possible.
Exhibit 99.3
JOINT FILING AGREEMENT
In accordance with Rule 13d-1(f) under the Securities Exchange
Act of 1934, the persons named below agree to the joint filing on behalf of each
of them of a Statement on Schedule 13D (including amendments thereto) with
respect to the common stock of Eastern Environmental Services, Inc., and further
agree that this Joint Filing Agreement be included as an Exhibit to such joint
filing.
Dated: August 26, 1998 WASTE MANAGEMENT, INC.
By /s/ Gregory T. Sangalis
-------------------------------------------
Name: Gregory T. Sangalis
Title: Senior Vice President,
General Counsel and Secretary
OCHO ACQUISITION CORPORATION
By /s/ Gregory T. Sangalis
-------------------------------------------
Name: Gregory T. Sangalis
Title: Senior Vice President
and Secretary
