UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
(Amendment No. 1)*
DAMES & MOORE, INC.
-------------------
Common Stock, $0.01 par value
(Title of Class of Securities)
235713-10 4
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(CUSIP Number)
Eberhard Rohm, Esq.
Fulbright & Jaworski, L.L.P.
666 Fifth Avenue
New York, NY 10103
(Name, Address and Telephone Number of Person Authorized
to Receive Notices and Communications)
November 18, 1996
(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 schedule because of Rule
13d-1(b)(3) or (4), check the following box.
Check the following box if a fee is being paid with the statement.
(A fee is not required only if the reporting person: (1) has a
previous statement on file reporting beneficial ownership of more
than five percent of the class of securities described in Item 1;
and (2) has filed no amendment subsequent thereto reporting
beneficial ownership of five percent or less of such class.) (See
Rule 13d-7.)
Note: Six copies of this statement, including all exhibits, should
be filed with the Commission. See Rule 13d-1(a) for other parties
to whom copies are to be sent.
*The remainder of this cover page shall be filled out for a
reporting person's initial filing on this form with respect to the
subject class of securities, and for any subsequent amendment
containing information which would alter disclosures provided in a
prior cover page.
The information required on the remainder of this cover page shall
not be deemed to be "filed" for the purpose of Section 18 of the
Securities Exchange Act of 1934 ("Act") or otherwise subject to the
liabilities of that section of the act, but shall be subject to all
other provisions of the Act (however, see the Notes).
PAGE
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SCHEDULE 13D
CUSIP No. 235713 10 4 Page
of Pages
1. NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
(a) DM Investors, Inc. (formerly Hochtief, Inc., a Delaware
corporation) (IRS 13-3105072);
(b) Hochtief Aktiengesellschaft vorm.Gebr.Helfmann ("Hochtief
AG"), a German corporation and parent of DM Investors
Inc., Inc.;
(c) RWE Aktiengesellschaft ("RWE"), a German corporation and
parent of Hochtief AG.
2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) [X]
(b) [ ]
3. SEC USE ONLY
4. SOURCE OF FUNDS
00
5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO
ITEMS 2(d) or 2(e)
6. CITIZENSHIP OR PLACE OF ORGANIZATION
DM Investors, Inc. (formerly Hochtief, Inc.) - Delaware
Hochtief AG - Germany; RWE - Germany
NUMBER 7. SOLE VOTING POWER
OF (a) 3,700,000
SHARES 8. SHARED VOTING POWER
BENEFICIALLY (a) 3,700,000
OWNED BY 9. SOLE DISPOSITIVE POWER
EACH (a) 3,700,000
REPORTING 10. SHARED DISPOSITIVE POWER
PERSON WITH (a) 3,700,000
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
(a) 3,700,000
12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
16.444%
14. TYPE OF REPORTING PERSON
DM Investors, Inc. (formerly Hochtief, Inc.) - CO
Hochtief AG - HC
RWE - HC
PAGE
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Item 1. SECURITY AND ISSUER
Common Stock, $0.01 par value, of Dames & Moore, Inc.
The principal executive office of the Issuer is:
Dames & Moore, Inc.
911 Wilshire Boulevard, Suite 700
Los Angeles, CA 90017
Item 2. IDENTITY AND BACKGROUND
I. (a) DM Investors, Inc., formerly Hochtief, Inc.
(b) c/o Corporation Service Company
1013 Centre Road
Wilmington, Delaware 19805
(c) Holding company for USA interests of Hochtief AG
(d) None
(e) None
(f) Germany
Information regarding executive officers and directors of DM
Investors, Inc.
follows:
(a) Hans-Peter Keitel, Chairman of the Board and President
(b) Rellinghauser Str. 53-57
45128 Essen, Germany
(c) Chief Executive Officer and director, Hochtief AG
(d) none
(e) none
(f) Germany
(a) Busso Peus, Director
(b) Rellinghauser Str. 53-57
45128 Essen, Germany
(c) Chief Executive Officer and director, Hochtief AG
(d) none
(e) none
(f) Germany
(a) Eberhard H. Rohm
(b) Fulbright & Jaworski, L.L.P.
666 Fifth Avenue
New York, N.Y. 10103
(c) Partner, Fulbright & Jaworski, L.L.P., 666 Fifth Avenue,
New York, N.Y. 10103
(d) none
(e) none
(f) United States
II. (a) Hochtief Aktiengesellschaft vorm. Gebr. Helfmann
(Hochtief AG)
(b) Rellinghauser Str. 53-57
45128 Essen, Germany
(c) Publicly traded German company engaged in civil
engineering and construction. Owns all of the
outstanding stock of DM Investors, Inc., formerly
Hochtief, Inc.
(d) none
(e) none
(f) Germany
Information concerning the executive officers and directors of
Hochtief AG
follows:
(a) Hans-Peter Keitel
(b) Rellinghauser Str. 53-57
45128 Essen, Germany
(c) Chief Executive Officer and director, Hochtief AG
(d) none
(e) none
(f) Germany
(a) Friedel Abel
(b) Rellinghauser Str. 53-57
45128 Essen, Germany
(c) Executive Officer and director, Hochtief AG
(d) none
(e) none
(f) Germany
(a) Dr. Hermann N. Cobet
(b) Rellinghauser Str. 53-57
45128 Essen, Germany
(c) Executive Officer and director, Hochtief AG
(d) none
(e) none
(f) Germany
(a) Ulrich Gross
(b) Rellinghauser Str. 53-57
45128 Essen, Germany
(c) Executive Officer and director, Hochtief AG
(d) none
(e) none
(f) Germany
(a) Wolfhard Leichnitz
(b) Rellinghauser Str. 53-57
45128 Essen, Germany
(c) Executive Officer and director, Hochtief AG
(d) none
(e) none
(f) Germany
(a) Busso Peus
(b) Rellinghauser Str. 53-57
45128 Essen, Germany
(c) Executive Officer and director, Hochtief AG
(d) none
(e) none
(f) Germany
(a) Karl Rohnberg
(b) Rellinghauser Str. 53-57
45128 Essen, Germany
(c) Executive Officer and director, Hochtief AG
(d) none
(e) none
(f) Germany
(a) Hans Georg Vater
(b) Rellinghauser Str. 53-57
45128 Essen, Germany
(c) Executive Officer and director, Hochtief AG
(d) none
(e) none
(f) Germany
III. Information concerning the executive officers and directors of
RWE Aktiengesellschaft
(a) Dr. jur. Dietmar Kuhnt
(b) Kruppstrasse 5, 45128 Essen, Germany
(c) Chief Executive Officer and Director, RWE
(d) none
(e) none
(f) Germany
(a) Dr. E. H. Dieter Henning
(b) Kruppstrasse 5, 45128 Essen, Germany
(c) Executive Officer and director, RWE
(d) none
(e) none
(f) Germany
(a) Prof. Dr. jur. Ulrich Budenbender
(b) Kruppstrasse 5, 45128 Essen, Germany
(c) Executive Officer and director, RWE
(d) none
(e) none
(f) Germany
(a) Roland Farnung
(b) Kruppstrasse 5, 45128 Essen, Germany
(c) Executive Officer and director, RWE
(d) none
(e) none
(f) Germany
(a) Dr.-Ing. Dr.-Ing E.h.
(b) Kruppstrasse 5, 45128 Essen, Germany
(c) Executive Officer and director, RWE
(d) none
(e) none
(f) Germany
(a) Prof. Dr.-Ing. Werner Hlubek
(b) Kruppstrasse 5, 45128 Essen, Germany
(c) Executive Officer and director, RWE
(d) none
(e) none
(f) Germany
(a) Dr.-Ing. Hans-Peter Keitel
(b) Kruppstrasse 5, 45128 Essen, Germany
(c) Executive Officer and director, RWE
(d) none
(e) none
(f) Germany
(a) Dr. rer. nat. Peter Koch
(b) Kruppstrasse 5, 45128 Essen, Germany
(c) Executive Officer and director, RWE
(d) none
(e) none
(f) Germany
(a) Dr. sc. pol. h.c. Herbert Kramer
(b) Kruppstrasse 5, 45128 Essen, Germany
(c) Executive Officer and director, RWE
(d) none
(e) none
(f) Germany
(a) Franz Josef Schmitt
(b) Kruppstrasse 5, 45128 Essen, Germany
(c) Executive Officer and director, RWE
(d) none
(e) none
(f) Germany
(a) Wolfgang Ziemann
(b) Kruppstrasse 5, 45128 Essen, Germany
(c) Executive Officer and director, RWE
(d) none
(e) none
(f) Germany
Item 3. SOURCE AND AMOUNT OF FUNDS.
Not applicable.
Item 4. PURPOSE OF TRANSACTION
On November 18, 1996, Dames & Moore, Inc. and Hochtief AG
entered into an agreement for the sale by Hochtief AG to Dames &
Moore, Inc. of all the issued and outstanding stock of DM
Investors, Inc. (formerly Hochtief Inc.). DM Investors, Inc. owns
3,700,000 shares of Dames & Moore, Inc. The Agreement is subject
to certain approvals and the satisfaction of certain contingencies.
Item 5. INTEREST IN SECURITIES OF THE COMPANY.
(a) DM Investors, Inc., formerly Hochtief, Inc., Hochtief, AG
and RWE (collectively the "Hochtief Entities") are each deemed the
beneficial owner of 3,700,000 shares, or 16.97% of the outstanding
shares of common stock of Issuer by reason of the fact that
Hochtief AG owns all of the outstanding capital stock of DM
Investors, Inc., formerly Hochtief, Inc., and RWE owns
approximately 56% of the outstanding voting stock of Hochtief AG.
(b) The Hochtief Entities, individually and together, have
sole power to vote or to direct the vote of the shares and, shared
power with one another to do the same; sole power to dispose or to
direct the disposition of the shares and shared power with one
another to do the same.
(c) None.
(d) None.
(e) Not applicable.
Item 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS
WITH RESPECT TO SECURITIES OF THE ISSUER.
Stock Purchase Agreement dated November 18, 1996 between Dames
& Moore, Inc., Hochtief Aktiengellschaft vorm.Gebr.Helfmann and DM
Investors, Inc.
Item 7. EXHIBITS.
Stock Purchase Agreement dated November 18, 1996 between Dames
& Moore, Inc., Hochtief Aktiengellschaft vorm.Gebr.Helfmann and DM
Investors, Inc.
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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.
Date: November 30, 1996 DM Investors, Inc. (formerly Hochtief Inc.)
By: /s/ Busso Peus
Busso Peus, Member of the Board
Hochtief Aktiengesellschaft vorm.Gebr.Helfmann
By: /s/ Busso Peus
Busso Peus, Member of the Board
RWE Aktiengesellschaft, a German corporation
By: /s/ Georg Lambertz /s/ Harald Wilde
Georg Lambertz, Authorized Officer
Harald Wilde, Authorized Officer
STOCK PURCHASE AGREEMENT
STOCK PURCHASE AGREEMENT, dated as of November 18,
1996, among Dames & Moore, Inc. (the "Buyer"), Hochtief
Aktiengesellschaft vorm. Gebr. Helfmann (the "Shareholder") and
DM Investors, Inc. (formerly named Hochtief, Inc.), a Delaware
corporation (the "Company").
WHEREAS, the Shareholder owns an aggregate of 1,000
shares (the "Shares") of the common stock, no par value (the
"Common Stock"), of the Company, which Shares constitute all of
the issued and outstanding shares of capital stock of the
Company; and
WHEREAS, the Buyer desires to purchase all of the
Shares from the Shareholder, such that on the Closing Date (as
hereinafter defined), the Company will become a wholly-owned
subsidiary of the Buyer; and
WHEREAS, the Buyer, the Shareholder and the Company
desire to make certain representations, warranties, covenants and
agreements in connection with this Agreement.
NOW, THEREFORE, in consideration of the mutual benefits
to be derived from this Agreement and of the representations,
warranties, conditions and promises hereinafter contained, the
parties hereto hereby agree as follows:
ARTICLE I
CERTAIN PRE-CLOSING TRANSACTIONS;
SALE AND PURCHASE OF SHARES
1.1 Certain Pre-Closing Transactions. Prior to the
Closing (as hereinafter defined), (i) the Company shall cause all
of its right, title and interest in any and all assets, whether
tangible or intangible and whether fixed, contingent or otherwise
(the "Transferred Assets") other than the 3,700,000 shares of
common stock, par value $0.01 per share (the "D&M Shares") of
Dames & Moore, Inc., a Delaware corporation ("D&M"), to be
transferred to the Shareholder or another subsidiary of the
Shareholder, and (ii) the Shareholder shall assume and agree to
discharge and hold the Company and the Buyer harmless from any
and all Liabilities of the Company and any of its present or
former subsidiaries, whether liquidated or unliquidated, known or
unknown, with respect to any period prior to and including the
Closing (the "Assumed Liabilities"), which Assumed Liabilities
include, without limitation: (a) any Liability to or in respect
of any employees or former employees of the Company or its
subsidiaries, (b) any Liability of the Company or any of its
subsidiaries in respect of any Tax; and (c) any Liability of the
Company or any of its subsidiaries arising out of or related to
any Action against any of them or any Action which adversely
affects the Company and which shall have been asserted on or
prior to the Closing Date or to the extent the basis of which
shall have arisen on or prior to the Closing Date. As used in
this Agreement: (w) the term "Agreement" shall include those
documents and agreements contemplated by clauses (i) and (ii)
above; (x) the term "Liability" shall mean any direct or indirect
liability, indebtedness, obligation, commitment, expense, claim,
deficiency, guarantee or endorsement of or by any person of any
type, whether accrued, absolute, contingent matured, unmatured or
other; (y) the term "Tax" shall mean any federal, state, local,
foreign or other tax, levy, impost, fee, assessment or other
government charge, including, without limitation, any tax
incurred by the Company as of the Closing Date from the sale or
disposition of the Shares; income, estimated income, business,
occupation, franchise, property, payroll, personal property,
sales, transfer, use, employment, commercial rent, occupancy,
franchise or withholding taxes; and any premium, including
without limitation interest, penalties and additions in
connection therewith; and (z) the term "Action" shall mean any
action, claim, suit, litigation, proceeding, labor dispute,
arbitral action, governmental audit, inquiry, criminal
prosecution, investigation or unfair labor practice charge or
complaint.
1.2 Shares Being Sold. Upon the terms and subject to
the conditions hereinafter set forth, at the Closing (as
hereinafter defined), the Shareholder shall sell and deliver to
the Buyer, and the Buyer shall purchase from the Shareholder, all
of the Shares, free and clear of all of the following
(hereinafter collectively referred to as "Claims"): security
interests, judgments, liens, pledges, claims, charges, escrows,
encumbrances, options, rights of first refusal, mortgages,
indentures, security agreements or other agreements,
arrangements, contracts, commitments, understanding or
obligations, whether written or oral and whether or not relating
in any way to credit or the borrowing of money.
1.3 Delivery of the Shares. At the Closing, in
exchange for payment of the Purchase Price (as hereinafter
defined) by the Buyer as provided in Section 1.4, (a) the
Shareholder shall deliver to the Company certificate No. 1
representing the Shares, together with a stock power or powers
with respect thereto, duly endorsed for transfer to the Buyer,
and (b) the Shareholder shall cause the Company to deliver to the
Buyer certificate No. 2 registered in the name of the Buyer,
representing the identical 1,000 shares Common Stock (being all
of the Shares).
1.4 Purchase Price for the Shares. The aggregate
purchase price (the "Purchase Price") to be paid by the Buyer for
the Shares shall be $50,875,000 (equivalent to $13.75 per D&M
Share) adjusted (plus or minus) at Closing according to the
following formula (average daily New York Stock Exchange closing
price of the D&M Shares from the date following the date of this
agreement to the day before the Closing, less $13.75, times the
number of D&M Shares held by the Company (3,700,000), times 50%)
provided, however, that the Purchase Price, in no event, shall be
higher than $55,000,000 (upper limit) nor lower than $50,000,000
(lower limit). At the Closing, in full payment for the Shares,
the Buyer shall deliver to the Shareholder the Purchase Price, by
delivery of a wire transfer of immediately available funds to an
account designated in writing by the Shareholder.
1.5 Closing of the Purchase. The closing of the
purchase and sale of the Shares shall occur at 10:00 a.m. on the
first business day on which the last to be fulfilled or waived of
the conditions set forth in Article IV hereof shall be fulfilled
or waived in accordance with this Agreement, or at such other
place or time as the Shareholder and the Buyer may agree. The
closing (the "Closing") of the transactions contemplated hereby
shall take place at the offices of Latham & Watkins, 633 West
Fifth Street, Suite 4000, Los Angeles, California and the day on
which the Closing occurs shall be referred to as the "Closing
Date".
ARTICLE II
REPRESENTATIONS AND WARRANTIES
2.1 Representations and Warranties f the Shareholder
and the Company. The Shareholder and the Company jointly and
severally represent and warrant to the Buyer, as of the date
hereof, as follows:
(a) Record Ownership. The Shareholder is the
record and beneficial owner of and has, and at the Closing will
transfer to the Buyer, good and transferable title to the Shares,
free and clear of all Claims and with no restriction on the
voting rights and other incidents of record and beneficial
ownership pertaining thereto. All of the Shares are validly
issued and outstanding, fully paid and nonassessable, with no
personal liability attaching to the ownership thereof. The
Shareholder has the absolute right and power to transfer the
Shares to the Buyer as contemplated by this Agreement, together
with all rights and benefits incident to the ownership thereof.
There are no outstanding options, warrants or rights to purchase
or acquire any of the Shares and there are no agreements or
understanding between the Shareholder and any other person with
respect to the voting, sale or disposition of any securities of
the Company or any other matter relating thereto. The
Shareholder acquired the Shares in transactions exempt from the
Securities Act of 1933, as amended (the "Securities Act"), and in
compliance with all applicable state securities laws.
(b) Authority: Conflicts. The Shareholder and
the Company have all requisite power and authority to enter into
this Agreement and to sell the Shares. On or prior to the
Closing, the execution, delivery and performance of this
Agreement by the Shareholder and the Company and the consummation
by the Shareholder and the Company of the transactions
contemplated by this Agreement have been duly authorized by all
necessary action on the part of the Shareholder and the Company.
This Agreement has been duly executed on behalf of the
Shareholder and the Company, and this Agreement is the valid and
binding. obligation of each of the Shareholder and the Company
enforceable in accordance with its terms. Neither the execution,
delivery and performance of this Agreement by the Shareholder and
the Company, including the sale of the Shares by the Shareholder,
nor the consummation of the transactions contemplated hereby nor
compliance by the Shareholder and the Company with any of the
provisions hereof will conflict with, or result in any violation
of, or default (with or without notice of lapse of time, or
both), under, or give rise to any right of termination,
cancellation or acceleration or to loss of a material benefit
under, any provision of the agreement of organization or
formation of the Shareholder or the Company or the terms,
conditions or provisions of any note, bond, lease, mortgage,
indenture, license, agreement or other instrument, obligation,
concession, franchise, judgment, order, decree, statute, law,
ordinance, rule or regulation applicable to the Shareholder or
the Company or their respective properties or assets. No
consent, approval, order or authorization of, or registration,
declaration or filing with, any administrative agency or
commission nor other governmental authority or instrumentality,
domestic or foreign (each, a "Governmental Entity"), is required
to be obtained by the Company or the Shareholder in connection
with the execution and delivery of this Agreement or the
consummation of the transactions contemplated hereby, other than
filings required to be made by Shareholder under the Securities
Exchange Act of 1934, as amended. The Shareholder does not own
any real property or have a permanent establishment in the United
States. The Shareholder does not conduct a trade or business in
the United States.
(c) Organization, Standing and Power. The
Company is a corporation duly organized, validly existing and in
good standing under the laws of the State of Delaware and has all
requisite corporate power and authority to own, lease and operate
its properties, and to carry on its business as now being
conducted. Immediately prior to the Closing, the business of the
Company shall consist solely of owning the D&M Shares. The
Company is duly qualified and in good standing to do business in
every jurisdiction in which such qualification is necessary
because of the nature of the property owned, leased or operated
by it or the nature of the business conducted by it other than in
such jurisdictions where the failure so to qualify would not have
a material adverse effect on the Company. The Shareholder on the
Closing will deliver to the Buyer complete and correct copies of
the Company's Certificate of Incorporation, as in effect on the
date hereof, certified by the Secretary of State of the State of
Delaware, the Company's By-laws, as in effect on the date hereof,
and all of the Company's books and records.
(d) Capital Stock. The authorized capital stock
of the Company consists of 1,000 shares of Common Stock, all of
which 1,000 shares are validly issued and outstanding, fully paid
and nonassessable, with no personal liability attaching to the
ownership thereof. There is no preferred stock authorized. The
Company does not hold any treasury stock. All the outstanding
shares of Common Stock are owned of record and beneficially by
the Shareholder. There are no outstanding preemptive rights,
options, warrants, calls, rights, commitments or agreements of
any character to which the Company or the Shareholder is a party
or by which either of them is bound calling for the issuance,
sale or transfer of shares of capital stock of the Company or any
other arrangement to acquire, at any time or under any
circumstance, capital stock of the Company or securities
convertible into such capital stock, or any security representing
the right to purchase or otherwise receive any such capital stock
or which grant to any person an option or right of first refusal
or right of first offer with respect to such capital stock or
such other securities.
(e) Ownership of D&M Stock. The Company is the
record and beneficial owner of and has good and transferable
title to the D&M shares free and clear of all Claims and with no
restrictions on the voting rights and other incidents of record
and beneficial ownership pertaining thereto. The Company has the
absolute right and power to transfer the D&M Shares, together
with all rights and benefits incident to the ownership thereof.
There are no outstanding options, warrants or rights to purchase
or acquire any of the D&M Shares and there are no agreements or
understandings between the Company and any other person with
respect to the voting, sale or disposition of any securities of
D&M or any other matter relating thereto.
(f) Tax Matters. All material Tax returns,
statements, reports and forms (including estimated tax returns
and reports and information returns and reports) required to be
filed with any Taxing authority with respect to any pre-Closing
Tax period by or on behalf of the Company (collectively, the
"Returns"), have been filed when due in accordance with all
applicable laws. As of the time of filing, the Returns correctly
reflected in all material respects the income, business, assets,
operations, activities and status of the Company for the periods
covered by such Returns, respectively, and any other information
required to be shown therein. The Company has timely paid and
remitted to the appropriate Taxing authority, all Taxes shown as
due and payable on the Returns that have been filed. The Company
is not a "United States real property holding corporation" as
defined in Section 897 of the Internal Revenue Code.
(g) No Brokers. None of the Shareholder or the
Company has employed any broker, finder, consultant or
intermediary in connection with the transactions contemplated by
this Agreement which would be entitled to a broker's, finder's or
similar fee or commission in connection therewith.
2.2 Representations and Warranties of the Buyer. The
Buyer represents and warrants to the Shareholder as follows:
(a) Organization, Standing and Power. The Buyer
is a corporation duly organized, validly existing and in good
standing under the laws of jurisdiction of its formation and has
all requisite power and authority to own, lease and operate its
properties and to carry on its business as now being conducted,
and is duly qualified and in good standing to do business in each
jurisdiction in which the nature of its business or the ownership
or leasing of its properties makes such qualification necessary
other than in such jurisdictions where the failure to do so would
not have a material adverse effect on the Buyer, taken as a
whole.
(b) Authority. The Buyer has all requisite power
and authority to enter into this Agreement and to perform its
obligations hereunder and to consummate the transactions
contemplated hereby. On or prior to the Closing, the execution,
delivery and performance of this Agreement by the Buyer and the
consummation by the Buyer of the transactions contemplated hereby
shall have been duly authorized by all necessary action on the
part of the Buyer. This Agreement has been duly executed and
delivered by the Buyer and this Agreement is the valid and
binding obligation of the Buyer, enforceable in accordance with
its terms. Neither the execution, delivery and performance of
this Agreement by the Buyer, nor the consummation of the
transactions contemplated hereby nor compliance by the Buyer with
the provisions hereof will (i) conflict with, or result in any
violations of, or cause a default (with or without notice or
lapse of time, or both) under, or give rise to a right of
termination, amendment, cancellation or acceleration of any
obligation contained in or the loss of any material benefit
under, or result in the creation of any lien, security interest,
charge or encumbrance upon any of the material properties or
assets of the Buyer under any term, condition or provision of (x)
the documents of formation or by-laws of the Buyer or (y) any
loan or credit agreement, note, bond, mortgage, indenture, lease
or other agreement, instrument, permit, concession, franchise,
license, judgment, order, decree, statute, law, ordinance, rule
or regulation applicable to the Buyer or its properties or assets
except for defaults which may occur under the Buyer's two credit
agreements dated March 15, 1996 and May 24, 1996, respectively
(the "Credit Agreements"). No consent, approval, order or
authorization of, or registration, declaration or filing with,
any Governmental Entity is required to be obtained by the Buyer
in connection with the execution and delivery of this Agreement
or the consummation of the transactions contemplated hereby.
ARTICLE III
INDEMNIFICATION
3.1 Indemnification. The Shareholder agrees to
indemnify and hold the Buyer, the Company and their respective
affiliates, officers, directors, agents and representatives
(each, an "Indemnified Party") harmless against and in respect of
(i) any and all claims, losses, liabilities, damages,
deficiencies, costs and expenses (including reasonable attorneys'
fees and expenses) to the extent based upon, arising out of or
relating to the Assumed Liabilities; and (ii) any and all claims,
losses, liabilities, damages, deficiencies, costs and expenses
(including reasonable attorneys' fees and expenses) incurred by
the Indemnified Party as a result of any breach by the
Shareholder of any of its representations and warranties
contained herein.
3.2 Claiming Procedure. Promptly after the assertion
of any claim by a third party which may give rise to a claim for
indemnification from the indemnitor (the "Indemnitor") under this
Agreement, the Indemnified Party shall notify the Indemnitor in
writing of such claim and advise the Indemnitor whether the
Indemnified Party intends to contest such claim. In order to
administer the claiming procedure and to facilitate the
processing of any claims, the Buyer hereby entrusts to R.D.
Gourley & Co. Certified Public Accountants, 501 S. First Avenue,
Arcadia, CA 91006, all books and records of the Company who shall
hold them as a fiduciary and make them available on reasonable
notice to the Buyer and its authorized agents during regular
business hours.
The Indemnified Party shall permit the Indemnitor
to contest and defend against such claim, at the Indemnitor's
expense, if the Indemnitor has confirmed to the Indemnified Party
in writing that it agrees that the Indemnified Party is entitled
to indemnification hereunder in respect of such claim, unless the
Indemnified Party believes that the conduct of its defense by the
Indemnitor could be reasonably likely to prejudice such
Indemnified Party due to the nature of the claims presented or by
virtue of a conflict between the interests of such Indemnified
Party and such Indemnitor or between such Indemnified Party and
another Indemnified Party whose defense has been assumed by the
Indemnitor. Notwithstanding a determination by the Indemnitor to
contest such claim, the Indemnified Party shall have the right to
be represented by its own counsel and accountants at its own
expense except as set forth above. In any case, the Indemnified
Party shall make available to the Indemnitor and its attorneys
and accountants, at all reasonable times during normal business
hours, all books, records, and other documents in its possession
relating to such claim. The party contesting any such claim
shall be furnished all reasonable assistance in connection
therewith by the other party (with reimbursement of reasonable
expenses by the Indemnitor). If the Indemnitor fails to
undertake the defense of or to settle or pay any such third-party
claim within 30 days after the Indemnified Party has given
written notice to the Indemnitor advising the Indemnitor of such
claim, or if the Indemnitor, after having given notice to the
Indemnified Party that it intends to undertake the defense, fails
forthwith to defend, settle or pay such claim, then the
Indemnified Party may take any and all necessary action to
dispose of such claim including, without limitation, the
settlement or full payment thereof upon such terms as it shall
deem appropriate, in its sole discretion.
3.3 Tax Gross-Up. In the event that a payment to the
Indemnified Party by Indemnitor is treated by the Internal
Revenue Service or any similar state and/or local taxing
authorities as taxable income, with no or only partial offset in
the form of a corresponding deduction for a claim to a third
party, through no fault of the Indemnified Party, then Indemnitor
shall pay to the Indemnified Party an amount equal to the taxes
paid by the Indemnified Party related to the aforementioned
taxable income computed at the highest statutory rate.
3.4 Survival of Representations and Warranties. The
representations and warranties of the parties included herein or
pursuant hereto shall survive the Closing.
ARTICLE IV
CONDITIONS
4.1 Conditions to Obligations of the Buyer. The
obligations of the Buyer to consummate the transactions
contemplated at Closing are subject to the fulfillment of each of
the following conditions, any or all of which may be waived in
whole or in part by Buyer to the extent permitted by applicable
law:
(a) Board Approval. This Agreement and the
transactions contemplated hereby shall have been duly approved or
ratified, as appropriate, by the Board of Directors of the Buyer,
which decision shall be made in the sole and absolute discretion
of such Board of Directors;
(b) Litigation. No court or governmental or
regulatory authority of competent jurisdiction shall have
enacted, issued, promulgated, enforced or entered any statute,
rule, regulation, judgment, decree, injunction or other order
(whether temporary, preliminary or permanent) or taken any action
which prohibits the consummation of the transactions contemplated
by this Agreement or imposes material restrictions on Buyer or
the Company (or their respective subsidiaries) in connection with
consummation of the transactions contemplated hereby; provided,
however, that the parties invoking this condition shall use their
best efforts to have any such judgment, decree, injunction or
other order vacated; and
(c) Representations and Warranties. Each of the
representations and warranties of the Company and the Shareholder
contained in this Agreement shall be true and correct in all
material respects at and as of the Closing Date as if made at and
as of the Closing Date (except to the extent they relate to a
particular date); the Company and the Shareholder shall have
performed or complied with all agreements and covenants required
by this Agreement to be performed or complied with by them at or
prior to the Closing Date, and the Company, and the Shareholder
shall have delivered on the Closing date to Buyer a certificate,
dated the Closing Date, of the president of each of them, in form
and substance reasonably satisfactory to Buyer, to such effect
(which certificate shall be deemed to be a representation and
warranty of the Company and the Shareholder to such effect).
(d) Credit Agreements Consent. The Buyer shall
have received the requisite consent under the Credit Agreements
to the transaction contemplated hereby, which consent shall be
satisfactory in form and substance to the Buyer in its sole and
absolute discretion.
4.2 Conditions to Obligations of the Shareholder. The
obligations of the Shareholder to consummate the transactions
contemplated at Closing are subject to the fulfillment of each of
the following conditions, any or all of which may be waived in
whole or in part by the Shareholder to the extent permitted by
applicable law:
(a) Supervisory Board Approval. This Agreement
and the transactions contemplated hereby shall have been duly
approved or ratified, as appropriate, by the Supervisory Board of
the Shareholder, which decision shall be made in the sole and
absolute discretion of such Supervisory Board at its meeting
scheduled on November 12, 1996 at Munich, Germany.
(b) Litigation. No court or governmental or
regulatory authority of competent jurisdiction shall have
enacted, issued, promulgated, enforced or entered any statute,
rule, regulation, judgment, decree, injunction or other order
(whether temporary, preliminary or permanent) or taken any action
which prohibits the consummation of the transactions contemplated
by this Agreement; provided, however, that the parties invoking
this condition hereto shall use their best efforts to have any
such judgment, decree, injunction or other order vacated; and
(c) Representations and Warranties. The
representations and warranties of the Buyer in this Agreement
shall be true and correct in all material respects, at and as of
the Closing Date as if made at and as of the Closing Date (except
to the extent they relate to a particular date); the Buyer shall
have performed or complied with all agreements and covenants
required by this Agreement to be performed or complied with by it
at or prior to the Closing Date in all material respects; and the
Buyer shall have delivered to the Shareholder a certificate,
dated the Closing Date, of the president and the chief financial
officer, of the Buyer, in form and substance reasonably
satisfactory to the Shareholder, to such effect (which
certificate shall be deemed to be a representation and warranty
of the Buyer to such effect).
ARTICLE V
TERMINATION
5.1 Termination by Mutual Consent. This Agreement may
be terminated and the Closing may be abandoned at any time prior
to the Closing Date by the mutual written consent of Buyer and
the Shareholder, by action of their respective Boards of
Directors.
5.2 Termination by Either the Shareholder or the
Buyer. This Agreement may be terminated and the Closing may be
abandoned by action of the Board of Directors of either the
Shareholder or the Buyer if (i) the Closing shall not have been
consummated by Thursday, November 21, 1996 at 1600 hours
(provided that the right to terminate this Agreement under this
Section 5.2 shall not be available to any party whose failure to
fulfill any obligation under this Agreement has been the cause of
or resulted in the failure of the Closing to occur on or before
such date); (ii) any court of competent jurisdiction, or some
other governmental body shall have issued an order, decree or
ruling or taken any other action permanently restraining,
enjoining or otherwise prohibiting the Closing and such order,
decree, ruling or other action shall have become final and
nonappealable; or (iii) the Agreement shall have been voted on by
the Board of Directors of the Buyer and the vote shall not have
been sufficient to satisfy the conditions set forth in Section
4.1(a); or (iv) the Agreement shall have been voted on by the
Supervisory Board of the Shareholder and the vote shall not have
been sufficient to satisfy the conditions set forth in Section
4.2(a); or (v) the closing New York Stock Exchange price for the
D&M shares on the closing date is $11.00 or less or $16.50 or
higher.
5.3 Termination by Buyer. This Agreement may be
terminated and the Closing may be abandoned at any time prior to
the Closing Date by action of the Board of Directors of Buyer, if
the Company or the Shareholder shall have failed to comply in any
material respect with any of the covenants or agreements
contained in this Agreement to be complied with or performed by
the Company or the Shareholder at or prior to such date of
termination.
5.4 Termination by the Shareholder. This Agreement
may be terminated and the Closing may be abandoned at any time
prior to the Closing Date by action of the Board of Directors of
the Shareholder, if Buyer shall have failed to comply in any
material respect with any of the covenants or agreements
contained in this Agreement to be complied with or performed by
Buyer at or prior to such date of termination.
5.5 Effect of Termination. In the event of
termination of this Agreement, no party hereto (or any of its
directors or officers) shall have any liability or further
obligation to any other party to this Agreement, except that
nothing herein will relieve any party from liability for any
breach of this Agreement.
ARTICLE VI
GENERAL PROVISIONS
6.1 Amendment. This Agreement may not be amended
except by an instrument in writing signed on behalf of each of
the parties.
6.2 Extension; Waiver. At any time prior to the
Closing, the parties may (i) extend the time for the performance
of any of the obligations or other acts of the other parties,
(ii) waive any inaccuracies in the representations and warranties
contained in this Agreement or in any document delivered pursuant
to this Agreement, and (iii) waive compliance with any of the
agreements or conditions contained in this Agreement. Any
agreement on the part of a party to any such extension or waiver
shall be valid only if set forth in an instrument in writing
signed on behalf of such party.
6.3 Entire Agreement. This Agreement and the other
documents referenced herein contain the entire agreement among
the parties with respect to the subject matter hereof and
supersede all prior arrangements and understanding, both written
and oral, with respect thereto.
6.4 Severability. It is the desire and intent of the
parties that the provisions of this Agreement be enforced to the
fullest extent permissible under the law and public policies
applied in each jurisdiction in which enforcement is sought.
Accordingly, in the event that any provision of this Agreement
would be held in any jurisdiction to be invalid, prohibited or
unenforceable for any reason, such provision, as to such
jurisdiction, shall be ineffective, without invalidating the
remaining provisions of this Agreement or affecting the validity
or enforceability of such provision in any other jurisdiction.
Notwithstanding the foregoing, if such provision could be more
narrowly drawn so as not to be invalid, prohibited or enforceable
in such jurisdiction, it shall, as to such jurisdiction, be so
narrowly drawn, without invalidating the remaining provisions of
this Agreement or affecting the validity or enforceability of
such provision in any other jurisdictions.
6.5 Notices. All notices and other communications
pursuant to this Agreement shall be in writing and shall be
deemed to be sufficient if contained in a written instrument and
shall be deemed given if delivered personally, telecopied, sent
by nationally-recognized, overnight courier or mailed by
registered or certified mail (return receipt requested), postage
prepaid, 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 the Buyer, to:
Mark A. Snell
Dames & Moore
911 Wilshire Blvd., Suite 700
Los Angeles CA 90071
(b) prior to Closing, if to the Shareholder or
the Company, to:
Dr. Jur. Busso Peus
Hans-Guenter Muendelein
Hochtief Aktiengesellschaft vorm. Gebr.
Helfmann
Rellinghauser Str. 53-57
45128 Essen
Germany
(c) after the Closing, if to the Shareholder, to:
Dr. Jur. Busso Peus
Hans-Guenter Muendelein
Hochtief Aktiengesellschaft vorm. Gebr.
Helfmann
Rellinghauser Str. 53-57
45128 Essen
Germany
With a copy to:
Mr. Robert D. Gourley
R.D. Gourley & Co.
Certified Public Accountants
501 S. First Avenue
Arcadia, CA 91006
All such notices and other communications shall be deemed to have
been received (a) in the case of personal delivery, on the date
of such delivery, (b) in the case of a telecopy, when the party
receiving such telecopy shall have confirmed receipt of the
communication, (c) in the case of delivery by nationally-
recognized, overnight courier, on the date of the delivery
receipt and (d) in the case of mailing, on the third business day
following such mailing.
6.6 Headings. The headings contained in this
Agreement are for reference purposes only and shall not affect in
any way the meaning or interpretation of this Agreement.
6.7 Counterparts. This Agreement may be executed in
one or more counterparts, all of which shall be considered one
and the same agreement and shall become effective when one or
more counterparts have been signed by each of the parties and
delivered to the other parties, it being understood that all
parties need not sign the same counterpart.
6.8 Governing Law. This Agreement shall be governed
by and construed in accordance with the laws of the State of
Delaware applicable to contracts made and to be performed
therein.
6.9 Injunctive Relief. The Shareholder and the
Company, on the one hand, and the Buyer, on the other,
acknowledge and agree that irreparable damage would occur in the
event that any of the provisions of this Agreement were not
performed in accordance with their specific terms or were
otherwise breached. It is accordingly agreed that the parties
shall be entitled to an injunction or injunctions to prevent
breaches of the provisions of this Agreement and to enforce
specifically the terms and provisions hereof in any court of the
United States or any state thereof having jurisdiction, this
being in addition to any other remedy to which they may be
entitled at law or equity.
6.10 Consent to Jurisdiction; Service of Process. (a)
The parties hereto hereby irrevocably submit to the jurisdiction
of the Delaware Chancery Court (or, if subject matter
jurisdiction in that court is not available, in any other state
or federal court located within the State of Delaware) over any
dispute arising out of or relating to this Agreement or any of
the transactions contemplated hereby and each party hereby
irrevocably agrees that all claims in respect of such dispute or
proceeding shall be heard and determined in such court. The
parties hereby irrevocably waive, to the fullest extent permitted
by applicable law, any objection which they may now or hereafter
have to the laying of venue of any such dispute brought in such
court or any defense of inconvenient forum for the maintenance of
such dispute. Each of the parties hereto agrees that a judgment
in any such dispute may be enforced in other jurisdictions by
suit on the judgment or in any other manner provided by law.
(b) Each of the parties hereto hereby consents to
process being served by any party to this Agreement in any suit,
action or proceeding of the nature specified in Section 6.10
above by (i) mailing of a copy thereof in accordance with the
provisions of Section 6.5 of this Agreement or (ii) service of
process on Corporation Service Company, 1013 Centre Road,
Wilmington, Delaware 19805 as agent to receive evidence of
process in the State of Delaware.
6.11 Confidentiality. The Buyer hereby agrees to
maintain the confidentiality of the Company's present and future
books and records pertaining to events, issues and occurrences
prior to the Closing Date, except when the Buyer determines (i)
that maintaining such confidentiality would be inconsistent with
any law, rule or regulation applicable to the Company or the
Buyer, or (ii) that maintaining such confidentiality would be
inconsistent with effecting any transaction or any other aspect
of the Buyer's business.
<PAGE>
IN WITNESS WHEREOF, this Agreement has been duly
authorized officers of the parties hereto and shall be effective
as of the date first hereinabove written.
Hochtief Aktiengesellschaft
vorm. Gebr. Helfmann
By: /s/ Busso Peus
Its: Director and attorney-in-fact
DM Investors, Inc.
By: /s/ Busso Peus
Its: Director
Dames & Moore, Inc.
By: /s/ Mark A. Snell
Its: Executive Vice President
and Chief Financial Officer
