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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): November 19, 1996
DAMES & MOORE, INC.
(Exact name of registrant as specified in its charter)
Commission File Number 1-11075
Delaware 95-4316617
(State of incorporation) (I.R.S. Employer Identification No)
911 Wilshire Boulevard, Suite 700 90017
Los Angeles, California (Zip Code)
(Address of principal executive offices)
(213) 683-1560
(Registrant's telephone number, including area code)
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Item 2. Acquisition or Disposition of Assets
On November 19, 1996, Dames & Moore, Inc. (the "Company") acquired all of the
outstanding common stock of DM Investors, Inc., a wholly owned subsidiary of
Hochtief Aktiengesellschaft vorm. Gebr. Helfmann ("Hochtief AG").
The sole asset of DM Investors, Inc. is 3,700,000 shares of common stock of
the Company, which represents approximately 17% of the issued and outstanding
stock of the Company. Hochtief AG, as a major shareholder of the Company
through its ownership of DM Investors, Inc., has two representatives on the
Company's Board of Directors.
The aggregate purchase price paid in cash by the Company was approximately
$51,160,000. The purchase price was determined based on the closing price
on the New York Stock Exchange ("NYSE") on November 4, 1996 of $13.75,
adjusted based upon a formula and the average daily NYSE closing price of the
Company's shares for the period from the date of agreement to the closing
date.
The acquisition of DM Investors, Inc., when consolidated with the Company's
financial statements, will be reflected as a purchase of treasury stock and
thus a reduction of shareholders' equity.
Funds to finance this acquisition were provided $24,160,000 from cash and the
balance of $27,000,000 from borrowings under the Company's revolving lines of
credit. The revolving line of credit was funded by Bank of America National
Trust and Savings Association and Sanwa Bank of California.
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Item 7. Financial Statements and Exhibits
(a) Financial statements of the acquired business are not required.
(b) Pro forma information is not required.
(c) The following exhibits are filed as part of this report or are
incorporated by reference herein:
2.1 Stock Purchase Agreement dated November 5, 1996 for the
purchase of shares of DM Investors, Inc.
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
DAMES & MOORE, INC.
Date: December 3, 1996 By /s/MARK A. SNELL
Mark A. Snell
Executive Vice President and
Chief Financial Officer
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<TABLE>
<CAPTION>
INDEX TO EXHIBITS
Exhibit
Number Description Page
<S> <C> <C>
2.1 Stock Purchase Agreement dated November 5, 1996
for the purchase of shares of DM Investors, Inc. Filed electroncially
</TABLE>
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STOCK PURCHASE AGREEMENT
STOCK PURCHASE AGREEMENT, dated as of November 5, 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
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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".
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ARTICLE II.
REPRESENTATIONS AND WARRANTIES
2.1 Representations and Warranties of 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,
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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
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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.
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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.
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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).
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(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
<PAGE>9
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.
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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
<PAGE>11
(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.
<PAGE>12
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>13
IN WITNESS WHEREOF, this Agreement has been duly executed
and delivered by the 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/DR. JUR. BUSSO PEUS
Its:DIRECTOR AND ATTORNEY-IN-FACT
DM Investors, Inc.
By:/S/DR. JUR. BUSSO PEUS
Its:DIRECTOR
Dames & Moore, Inc.
By:/S/MARK A. SNELL
Its:EXECUTIVE VICE PRESIDENT &
CHIEF FINANCIAL OFFICER
