Tender-Offer Solicitation/Recommendation Statement — Schedule 14D-9
Filing Table of Contents
Document/Exhibit Description Pages Size
1: SC 14D9 Tender-Offer Solicitation/Recommendation Statement 26 131K
2: EX-99.1 Agree & Plan of Merge 37 145K
11: EX-99.10 News Release 2± 9K
3: EX-99.2 Agree & Allen & Co. 5 22K
4: EX-99.3 Agree Paul Gould 5 23K
5: EX-99.4 Agree Andrew Dwyer 6 23K
6: EX-99.5 Employment Agreement 4 17K
7: EX-99.6 Press Release 2± 9K
8: EX-99.7 Letter to Stockholders 1 7K
9: EX-99.8 Opinion of Allen & Co. 4 15K
10: EX-99.9 Opinion of Gilford SEC. 3 14K
Exhibit 3
STOCK TENDER AGREEMENT
STOCK TENDER AGREEMENT, dated as of March 17, 1995 (the "Agreement"), among
Paul A. Gould (the "Stockholder"), Waste Management, Inc., an Illinois
corporation ("Parent") and WMI Acquisition Sub, Inc., a Delaware corporation and
a wholly owned subsidiary of Parent ("Buyer").
WHEREAS, Buyer, and Resource Recycling Technologies, Inc., a Delaware
corporation (the "Company") propose to enter into an Agreement and Plan of
Merger dated the date hereof (the "Acquisition Agreement") which provides, among
other things, that Buyer shall commence an all cash tender offer to purchase any
and all shares of common stock of the Company at a purchase price of $11.50 per
share (the "Offer", which term shall include any amendment thereof not in
violation of the Acquisition Agreement), to purchase any and all of the issued
and outstanding shares of Company's Common Stock, par value $1.00 per share
("Common Stock"), and shall merge Buyer with and into the Company (the
"Merger"), in each case upon the terms and subject to the conditions set forth
in the Acquisition Agreement (any term used herein without definition shall have
the definition ascribed thereto in the Acquisition Agreement);
WHEREAS, as of the date hereof, the Stockholder beneficially owns 150,000
shares of Common Stock (the "Stockholder's Shares");
WHEREAS, as a condition to the willingness of the Company and Buyer to
enter into the Acquisition Agreement, and as an inducement to them to do so, the
Stockholder has agreed for the benefit of the Company and Buyer to tender the
Stockholder's Shares, and any other shares of Common Stock at any time during
the term of this Agreement held by Stockholder, in response to the Offer on the
terms and conditions contained in this Agreement; and
WHEREAS, the Board of Directors of the Company has approved the Acquisition
Agreement, the Offer, the Merger and this Agreement.
NOW THEREFORE, in consideration of the representations, warranties,
covenants and agreements contained in this Agreement the parties hereby agree as
follows:
ARTICLE 1
TENDER OFFER
SECTION 1.1. Tender of Shares. (a) Within five (5) business days of the
commencement by the Buyer of the Offer the Stockholder shall tender to the
depositary (the "Depositary") designated in the Offer to Purchase (the "Offer to
Purchase") distributed by the Buyer in connection with the Offer (i) a letter of
transmittal with respect to the Stockholder's Shares and any other shares of
Common Stock held by the Stockholder (such shares being referred to herein as
the "Shares"), complying with the terms of the Offer to Purchase, together
with instructions directing the Depositary to make payment for such Shares
directly to the Stockholder (but if such Shares are not accepted for payment and
are to be returned pursuant to the Offer to Purchase, to return such Shares to
Stockholder), (ii) the certificates representing the Shares and/or (iii) all
other documents or instruments required to be delivered pursuant to the terms of
the Offer to Purchase (such documents in clauses (i) through (iii) collectively
being hereinafter referred to as the "Tender Documents").
(b) The Stockholder will not, subject to applicable law, withdraw the
tender effected in accordance with Section 1.1.(a); provided, however, that the
Stockholder may decline to tender, or may withdraw, any and all Shares if (A)
the amount or form of consideration to be paid for such Shares is less than cash
in the amount of $11.50 per Share, net to the Stockholder in cash, (B) the
Acquisition Agreement is terminated, or (C) the Board of Directors of the
Company has withdrawn its recommendation of the Offer pursuant to Section
6.1(c)(ii) of the Acquisition Agreement, provided that if such withdrawal of a
recommendation occurs and the Board of Directors subsequently recommends an
offer by Buyer or an affiliate of Buyer for a consideration per Share greater
than $11.50 per Share, the Stockholder agrees to re-tender any Shares it has
withdrawn, whereupon all the terms of this Agreement shall be revived and
applicable to such Shares.
SECTION 1.2. Additional Shares. Any Shares of Common Stock acquired by
the Stockholder after the date hereof and prior to the termination of this
Agreement, whether upon the exercise of options or by means of purchase,
distribution, dividend or otherwise, shall be immediately tendered by the
Stockholder and shall constitute "Shares" subject to the terms of this
Agreement.
SECTION 1.3. No Purchase. Buyer may allow the Offer to expire without
accepting for payment or paying for any Shares, as set forth in the Offer to
Purchase, without purchasing all or any Shares pursuant thereto. If any Shares
are not accepted for payment in accordance with the terms of the Offer to
Purchase, they shall be returned to Stockholder, whereupon they shall continue
to be held by Stockholder subject to the terms and conditions of this Agreement.
SECTION 1.4. Restrictions. Except as contemplated by Section 1.1 hereof
and so long as the Board of Directors of the Company has not withdrawn its
recommendation of the Offer pursuant to Section 6.1(c)(ii) of the Acquisition
Agreement, Stockholder shall not, directly or indirectly: (i) offer for sale,
sell, transfer, tender, pledge, encumber, assign or otherwise dispose of, or
enter into any contract, option or other arrangement or understanding with
respect to or consent to the offer for sale, sale, transfer, tender, pledge,
encumbrance, assignment or other disposition of, any or all of Stockholder's
Shares or any interest therein; (ii) grant any proxies or powers of attorney,
deposit any Shares into a voting trust or enter into a voting agreement with
respect to any Shares; or (iii) other than as may be permitted to the Company by
Section 4.6 of the Acquisition Agreement, solicit, initiate or knowingly promote
any party other than Buyer or an affiliate of Buyer to acquire or offer to
acquire the Company, any of its Common Stock or a material portion of the assets
or business of the Company or any of its subsidiaries.
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ARTICLE 2
REPRESENTATIONS, WARRANTIES AND COVENANTS OF STOCKHOLDER
Stockholder represents, warrants and covenants to the Buyer that:
SECTION 2.1. Ownership. The Stockholder is the sole, true, lawful and
beneficial owner of the Stockholder's Shares with no restriction on voting
rights or rights of disposition pertaining to the Shares, and does not currently
beneficially own any other Shares. Stockholder will convey good and valid title
to the Shares being purchased pursuant to the Offer or the Merger, as the case
may be, free and clear of any and all claims, liens, charges, encumbrances and
security interests. Except as contemplated hereby, none of the Shares is
subject to any voting trust or other agreement or arrangement with respect to
the voting of such Shares.
SECTION 2.2. Non-Contravention. The execution, delivery and performance
by Stockholder of this Agreement and the consummation of the transactions
contemplated hereby (i) is within Stockholder's powers, have been duly
authorized by all necessary action (including any consultation, approval or
other action by or with any other person), (ii) require no action in respect of,
or filing with, any governmental body, agency, official or authority (except as
may be required under the Hart-Scott-Rodino Antitrust Improvements Act of 1976
or the Securities Exchange Act of 1934), and (iii) do not and will not
contravene or constitute a default under, or give rise to a right of
termination, cancellation or acceleration of any right or obligation of the
Stockholder or to a loss of any benefit of Stockholder under any provision of
applicable law or regulation or of any agreement, judgment, injunction, order,
decree, or other instrument binding on Stockholder or result in the imposition
of any lien on any asset of Stockholder.
SECTION 2.3. Binding Effect. This Agreement has been duly executed and
delivered by Stockholder and is the valid and binding agreement of Stockholder,
enforceable against Stockholder in accordance with its terms, except as
enforcement may be limited by bankruptcy, insolvency, moratorium or other
similar laws relating to creditors' rights generally.
ARTICLE 3
REPRESENTATIONS, WARRANTIES AND COVENANTS OF BUYER
Buyer represents, warrants and covenants to Stockholder that:
SECTION 3.1. Corporate Power and Authority. Buyer has all requisite
corporate power and authority to enter into this Agreement and to perform its
obligations hereunder. The execution, delivery and performance by Buyer of this
Agreement and the consummation by Buyer of the transactions contemplated hereby
have been duly authorized by the Board of Directors of Buyer and no other
corporate action on the part of Buyer is necessary to authorize the execution,
delivery and performance by Buyer of this Agreement and the consummation by
Buyer of the transactions contemplated hereby.
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SECTION 3.2. Binding Effect. This Agreement has been duly executed and
delivered by Buyer and is a valid and binding agreement of Buyer, enforceable
against Buyer in accordance with its terms, except as enforcement may be limited
by bankruptcy, insolvency, moratorium or other similar laws relating to
creditors' rights generally.
SECTION 3.3. Acquisition for Buyer's Account. Any Shares to be acquired
upon consummation of the Offer will be acquired by Buyer for its own account and
not with a view to the public distribution thereof and will not be transferred
except in compliance with the Securities Act of 1933.
ARTICLE 4
MISCELLANEOUS
SECTION 4.1. Expenses. Each party will pay its own costs and expenses
incurred in connection with this Agreement.
SECTION 4.2. Additional Agreements. Subject to the terms and conditions
of this Agreement, each of the parties hereto agrees to 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 and which may be required under any agreements, contracts,
commitments, instruments, understandings, arrangements or restrictions of any
kind to which such party is a party or by which such party is governed or bound,
to consummate and make effective the transactions contemplated by this
Agreement.
SECTION 4.3. Notice. All notices, requests, claims, demands and other
communications hereunder shall be deemed to have been duly given when delivered
in person, by telecopy, or by registered or certified mail (postage prepaid,
return receipt requested) to such party at its address set forth on the
signature page hereto.
SECTION 4.4. Amendments; Termination. This Agreement may not be modified,
amended, altered or supplemented, except upon the execution and delivery of a
written agreement executed by the parties thereto. This Agreement will
terminate upon the termination of the Acquisition Agreement in accordance with
its terms.
SECTION 4.5. Successors and Assigns. The provisions of this Agreement
shall be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns, provided, however, that Buyer may assign its
rights and obligations to another wholly owned subsidiary of Buyer who is the
assignee of Buyer's rights under the Acquisition Agreement, and provided,
further, that except as set forth in the prior clause, a party may not assign,
delegate or otherwise transfer any of its rights or obligations under this
Agreement without the consent of the other parties hereto.
SECTION 4.6. Governing Law. This Agreement shall be construed in
accordance with and governed by the law of Delaware without giving effect to the
principles of conflicts of laws thereof.
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SECTION 4.7. Counterparts; Effectiveness. This Agreement may be signed in
any number of counterparts, each of which shall be an original, with the same
effect as if the signatures thereto and hereto were upon the same instrument.
This Agreement shall become effective when each party hereto shall have received
counterparts hereof signed by all of the other parties hereto.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the day and year first above written.
WASTE MANAGEMENT, INC.
/s/ JOSEPH M. HOLSTEN
By:____________________________________
Name: Joseph M. Holsten
Title: Executive Vice President
3003 Butterfield Road
Oak Brook, Illinois 60521
Attention: General Counsel
WMI ACQUISITION SUB, INC.
/s/ JOSEPH M. HOLSTEN
By:____________________________________
Name: Joseph M. Holsten
Title: Vice President
3003 Butterfield Road
Oak Brook, Illinois 60521
Attention: General Counsel
STOCKHOLDER
/s/ PAUL A. GOULD
By:____________________________________
Name: Paul A. Gould
Allen & Company Incorporated
711 Fifth Avenue
New York, New York 10022
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Dates Referenced Herein and Documents Incorporated by Reference
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