Exhibit 2.2
STOCKHOLDERS SUPPORT AGREEMENT
STOCKHOLDERS SUPPORT AGREEMENT, dated as of August 16, 1998 (this
"Agreement"), among WASTE MANAGEMENT, INC., a Delaware corporation ("Parent"),
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OCHO ACQUISITION CORPORATION, a Delaware corporation and a wholly owned
subsidiary of Parent ("Subsidiary"), and the stockholders whose names appear on
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the signature pages of this Agreement (each a "Stockholder" and collectively the
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"Stockholders").
WHEREAS, as of the date hereof, the Stockholders own of record or has
the power to vote the number of shares of Common Stock, par value $.01 per share
("Company Common Stock"), of Services Inc., a Delaware corporation (the "Company
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") as set forth opposite such Stockholder's name on Exhibit A hereto (all such
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Company Common Stock and any shares of Company Common Stock of which ownership
of record or the power to vote is hereafter acquired by the Stockholders prior
to the termination of this Agreement being referred to herein as the "Shares");
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WHEREAS, Parent, Subsidiary and the Company propose to enter into (i)
an Agreement and Plan of Merger, dated as of even date herewith (as the same may
be amended from time to time, the "Merger Agreement"), which provides, upon the
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terms and subject to the conditions thereof, for the merger of Subsidiary with
and into the Company (the "Merger") and (ii) an agreement granting Parent an
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option on certain shares of Company Common Stock (the "Stock Option Agreement");
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and
WHEREAS, as a condition to the willingness of Parent to enter into the
Merger Agreement, Parent has requested that the Stockholders agree, and, in
order to induce Parent to enter into the Merger Agreement, the Stockholders have
agreed, jointly and severally, to enter into this Agreement;
NOW, THEREFORE, in consideration of the premises and of the mutual
agreements and covenants set forth herein and in the Merger Agreement, and
intending to be legally bound hereby, the parties hereto hereby agree as
follows:
ARTICLE I
TRANSFER AND VOTING OF SHARES
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SECTION 1.01. Transfer of Shares. No Stockholder shall, directly or
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indirectly, (a) sell (other than pursuant to any brokers' transaction executed
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upon the Stockholder's orders on any exchange or in the over the counter
market), pledge (other than in connection with margin accounts maintained by
such Stockholder) or otherwise dispose of any or all of such Stockholder's
Shares, (b) deposit any Shares into a voting trust or enter into a voting
agreement or arrangement with respect to any Shares or grant any proxy with
respect thereto or (c) enter into any contract, option or other arrangement or
undertaking with respect to the direct or indirect acquisition or sale (other
than pursuant to any brokers' transaction executed upon the Stockholder's orders
on any exchange or in the over the counter market), assignment, transfer or
other disposition of any Shares.
SECTION 1.02. Voting of Shares; Further Assurances. (a) Each
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Stockholder, by this Agreement, with respect to the Shares set out in Exhibit A
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hereto and any Shares hereinafter acquired by such Stockholder, does hereby
constitute and appoint Subsidiary, or any nominee of Subsidiary, with full power
of substitution, as his, her or its true and lawful attorney and proxy, for and
in his, her or its name, place and stead, to vote each of such Shares as his,
her or its proxy, at every annual, special or adjourned meeting of the
stockholders of the Company (including the right to sign his, her or its name
(as stockholder) to any consent, certificate or other document relating to the
Company that may be permitted or required by applicable law) (i) in favor of the
adoption of the Merger Agreement and approval of the Merger and the other
transactions contemplated by the Merger Agreement, (ii) against any transaction
pursuant to an Acquisition Proposal (as defined below) or any other action or
agreement that would result in a breach of any covenant, representation or
warranty or any other obligation or agreement of the Company under the Merger
Agreement or which could result in any of the conditions to the Company's
obligations under the Merger Agreement not being fulfilled, and (iii) in favor
of any other matter relating to consummation of the transactions contemplated by
the Merger Agreement. Each Stockholder further agrees to cause the number of
Shares as set forth opposite such Stockholder's name in Exhibit A hereto and all
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Shares over which he has voting power to be voted in accordance with the
foregoing. Each Stockholder acknowledges receipt and review of a copy of the
Merger Agreement.
(b) Each Stockholder shall perform such further acts and execute such
further documents and instruments as may reasonably be required to vest in
Subsidiary the power to carry out the provisions of this Agreement.
(c) The obligations of the Stockholders pursuant to this Article I
shall terminate upon the earlier of (i) the Effective Time (as defined in the
Merger Agreement) (ii) (x) 180 days after the termination of the Merger
Agreement in case of termination that entitles Parent to a fee under Section 7.6
of the Merger Agreement, or (y) on the date of termination in the case of
termination for any other reason.
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ARTICLE II
REPRESENTATIONS AND WARRANTIES; COVENANTS OF THE STOCKHOLDER
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The Stockholders hereby severally represent and warrant and covenant
to Subsidiary as follows:
SECTION 2.01. Organization; Authorization. (a) Such Stockholder, if
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it is a corporation, is a corporation duly organized, validly existing and in
good standing under the laws of the jurisdiction of its incorporation and has
the requisite power and authority and all necessary governmental approvals to
own, lease and operate its properties and to carry on its business as it is now
being conducted, except where the failure to be so organized, existing or in
good standing or to have such power, authority and governmental approvals would
not prevent or delay the performance in any material respect by such Stockholder
of its obligations under this Agreement. The execution and delivery of this
Agreement and the consummation of the transactions contemplated hereby have been
duly authorized by all necessary corporate action on the part of each
Stockholder.
(b) Such Stockholder, if it is a limited partnership, (i) is a limited
partnership duly organized, validly existing and in good standing under the laws
of the jurisdiction of its organization, (ii) has all requisite partnership
power and authority to execute and deliver this Agreement and to consummate the
transactions contemplated hereby and (iii) the execution and delivery of this
Agreement and the consummation of the transactions contemplated hereby have been
duly authorized by all necessary action on the part of such Stockholder, except,
with respect to clauses (i) and (ii) above, where the failure to be so
organized, existing or in good standing or to have such power and authority
would not prevent or delay in any material respect performance by such
Stockholder of its obligations under this Agreement.
(c) Such Stockholder, if it is a trust, (i) is duly formed as a trust
under the laws of the jurisdiction of its formation and its trust agreement is
valid and in full force and effect, (ii) has all requisite power and authority
under its trust instruments to execute and deliver this Agreement and to
consummate the transactions contemplated hereby and (iii) the execution and
delivery of this Agreement and the consummation of the transactions contemplated
hereby have been duly authorized by all necessary action on the part of such
Stockholder, except, with respect to clauses (i) and (ii) above, where the
failure to be so formed or to have such power and authority would not prevent or
delay in any material respect performance by such Stockholder of its obligations
under this Agreement.
(d) Such Stockholder, if it is an individual, has all legal capacity
to execute and deliver this Agreement and to consummate the transactions
contemplated hereby.
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(e) This Agreement has been duly executed and delivered by or on
behalf of each Stockholder and, assuming its due authorization, execution and
delivery by Purchaser, constitutes a legal, valid and binding obligation of each
Stockholder, enforceable against each Stockholder in accordance with its terms.
SECTION 2.02. No Conflict; Required Filings and Consents. (a) The
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execution and delivery of this Agreement by such Stockholder do not, and the
performance of this Agreement by such Stockholder will not, (i) conflict with or
violate the Certificate of Incorporation or By-laws or equivalent organizational
documents of such Stockholder (if any), (ii) conflict with or violate any law,
rule, regulation, order, judgment or decree applicable to such Stockholder or by
which it or any of its, his or her properties is bound or affected, or (iii)
result in any breach of or constitute a default (or an event that with notice or
lapse of time or both would become a default) under, or give to another party
any rights of termination, amendment, acceleration or cancellation of, or result
in the creation of a lien or encumbrance on any of the property or assets of
such Stockholder, including, without limitation, the Shares, pursuant to, any
note, bond, mortgage, indenture, contract, agreement, lease, license, permit,
franchise or other instrument or obligation to which such Stockholder is a party
or by which such Stockholder or any of its, his or her properties is bound or
affected, except for any such breaches, defaults or other occurrences that would
not prevent or delay the performance by such Stockholder of its obligations
under this Agreement. There is no beneficiary or holder of a voting trust
certificate or other interest of any trust of which the Stockholder is a trustee
whose consent is required for the execution and delivery of this Agreement or
the consummation by the Stockholder of the transactions contemplated by this
Agreement.
(b) The execution and delivery of this Agreement by such Stockholder
do not, and the performance of this Agreement by such Stockholder will not,
require any consent, approval, authorization or permit of, or filing with or
notification to, any governmental or regulatory authority, domestic or foreign,
except (i) for applicable requirements, if any, of the Securities Exchange Act
of 1934, as amended (the "Exchange Act") and the Xxxx-Xxxxx-Xxxxxx Antitrust
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Improvement Act of 1976 and the rules and regulations promulgated thereunder
(the "HSR Act") and (ii) where the failure to obtain such consents, approvals,
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authorizations or permits, or to make such filings or notifications, would not
prevent or materially delay the performance by such Stockholder of his or its
obligations under this Agreement.
SECTION 2.03. Title to Shares. Such Stockholder is the record or
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beneficial owner of its Shares free and clear of any proxy or voting restriction
other than pursuant to this Agreement. Such Shares are all the securities of
the Company owned of record or beneficially by such Stockholder on the date of
this Agreement.
SECTION 2.04 Acquisition Proposals. Until the termination of the
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Merger Agreement the Stockholder shall not, initiate, solicit, negotiate,
encourage or provide nonpublic or confidential information to facilitate, any
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proposal or offer to acquire all or any substantial part of the business or
properties of the Company or any capital stock of the Company, whether by
merger, purchase of assets, tender offer or otherwise, whether for cash,
securities or any other consideration or combination thereof (any such
transactions being referred to herein as an "Acquisition Transaction") or
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participate in any negotiations regarding, or furnish to any other person or
entity any information with respect to, or otherwise cooperate in any way with,
or assist or participate in, facilitate or encourage, any effort or attempt by
any other person to do or seek any of the foregoing; provided, however, that
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nothing in this Section 2.04 shall prevent the Stockholder, in his capacity as a
director or executive officer of the Company from engaging in any activity
permitted pursuant to Section 6.5 of the Merger Agreement. From and after the
execution of this Agreement, the Stockholder shall promptly (but in any event
within 48 hours) notify Parent after receipt of any unsolicited written offer or
proposal with respect to a potential or proposed Acquisition Transaction
("Acquisition Proposal"), indication of interest or request for nonpublic
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information relating to the Company or its subsidiaries in connection with an
Acquisition Proposal that the Stockholder receives in his capacity as a
Stockholder of the Company. Such notice to Subsidiary shall be made orally and
in writing and shall indicate in reasonable detail the identity of the offeror
and the terms and conditions of such proposal, inquiry or contact.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF PARENT
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Parent hereby represents and warrants to the Stockholders as follows:
SECTION 3.01. Due Organization; Binding Agreement. Each of Parent
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and Subsidiary is duly organized and validly existing under the laws of the
State of Delaware. Each of Parent and Subsidiary has all necessary corporate
power and authority to execute and deliver this Agreement and to consummate the
transactions contemplated hereby. The execution and delivery of this Agreement
and the consummation of the transactions contemplated hereby by Parent and
Subsidiary have been duly authorized by all necessary corporate action on the
part of each of Parent and Subsidiary. This Agreement has been duly executed
and delivered by each of Parent and Subsidiary and, assuming its due
authorization, execution and delivery by the Stockholders, constitutes a legal,
valid and binding obligation of each of Parent and Subsidiary, enforceable
against each of Parent and Subsidiary in accordance with its terms.
SECTION 3.02. No Conflict; Required Filings and Consents. (a) The
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execution and delivery of this Agreement by Parent and Subsidiary does not, and
the performance of this Agreement by Parent and Subsidiary will not, (i)
conflict with or violate
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the organizational documents of either Parent or Subsidiary, (ii) conflict with
or violate any law, rule, regulation, order, judgment or decree applicable to
Parent or Subsidiary or by which Parent or Subsidiary or any property of Parent
or Subsidiary is bound or affected, or (iii) result in any breach of or
constitute a default (or an event that with notice or lapse of time or both
would become a default) under, or give to others any rights of termination,
amendment, acceleration or cancellation of, or result in the creation of a lien
or encumbrance on any of the property or assets of Parent or Subsidiary pursuant
to, any note, bond, mortgage, indenture, contract, agreement, lease, license,
permit, franchise or other instrument or obligation to which Parent or
Subsidiary is a party or by which it or any property of Parent or Subsidiary is
bound or affected, except for any such breaches, defaults or other occurrences
that would not prevent or materially delay the performance by Parent or
Subsidiary of their obligations under this Agreement.
(b) The execution and delivery of this Agreement by Parent and
Subsidiary do not, and the performance of this Agreement by Parent and
Subsidiary will not, require any consent, approval, authorization or permit of,
or filing with or notification to, any governmental or regulatory authority,
domestic or foreign, except (i) for applicable requirements, if any, of the
Exchange Act and the HSR Act and (ii) where the failure to obtain such consents,
approvals, authorizations or permits, or to make such filings or notifications,
would not prevent or delay the performance by Parent or Subsidiary of their
obligations under this Agreement.
ARTICLE IV
GENERAL PROVISIONS
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SECTION 4.01. Notices. All notices and other communications given or
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made pursuant hereto shall be in writing and shall be given (and shall be deemed
to have been duly given upon receipt) by delivery in person, by cable, telecopy,
telegram or telex or by registered or certified mail (postage prepaid, return
receipt requested) to the respective parties at the following addresses (or at
such other address as shall be specified by notice given in accordance with this
Section 4.01):
(a) if to Parent or Subsidiary:
Waste Management, Inc.
0000 Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Attention:
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with a copy to:
Shearman & Sterling
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile No: (000) 000-0000
Attention: Xxxx X. Xxxxxxxx, Xx., Esq.
(b) If to Stockholders to:
Eastern Environmental Services, Inc.
0000 Xxxxxxxx Xxxxx
Xx. Xxxxxx, Xxx Xxxxxx 00000
Attention: Xxxxxx Xxxxxx
with a copy to:
Drinker Xxxxxx & Xxxxx LLP
0000 Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxxxxx, XX 0000-0000
Attention: H. Xxxx Xxxxxx, Xx.
SECTION 4.02. Headings. The headings contained in this Agreement are
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for reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
SECTION 4.03. Severability. If any term or other provision of this
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Agreement is invalid, illegal or incapable of being enforced by any rule of law
or public policy, all other conditions and provisions of this Agreement shall
nevertheless remain in full force and effect so long as the economic or legal
substance of the transactions contemplated hereby is not affected in any manner
materially adverse to any party. Upon such determination that any term or other
provision is invalid, illegal or incapable of being enforced, the parties hereto
shall negotiate in good faith to modify this Agreement so as to effect the
original intent of the parties as closely as possible to the fullest extent
permitted by applicable law in an acceptable manner to the end that the
transactions contemplated hereby are fulfilled to the extent possible.
SECTION 4.04. Entire Agreement. This Agreement constitutes the
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entire agreement of the parties and supersedes all prior agreements and
undertakings, both written and oral, between the parties, or any of them, with
respect to the subject matter hereof.
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SECTION 4.05. Assignment. This Agreement shall not be assigned by
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operation-of law or otherwise.
SECTION 4.06. Parties in Interest. This Agreement shall be binding
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upon and inure solely to the benefit of each party hereto, and nothing in this
Agreement, express or implied, is intended to or shall confer upon any person
any right, benefit or remedy of any nature whatsoever under or by reason of this
Agreement.
SECTION 4.07. Specific Performance. The parties hereto agree that
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irreparable damage would occur in the event any provision of this Agreement was
not performed in accordance with the terms hereof and that the parties shall be
entitled to specific performance of the terms hereof, in addition to any other
remedy at law or in equity.
SECTION 4.08. Governing Law. This Agreement shall be governed by,
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and construed in accordance with, the laws of the State of Delaware applicable
to contracts executed in and to be performed in that State. All actions and
proceeding arising out of or relating to this Agreement shall be heard and
determined in any Delaware state or federal court. THE STOCKHOLDERS AND
SUBSIDIARY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE ANY RIGHT THEY MAY
HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED ON, ARISING OUT OF,
UNDER OR IN CONNECTION WITH, THIS AGREEMENT, OR ANY COURSE OF CONDUCT, COURSE OF
DEALING, STATEMENT (VERBAL OR WRITTEN) OR ACTION OF THE STOCKHOLDERS OR
SUBSIDIARY.
SECTION 4.09. Counterparts. This Agreement may be executed in one or
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more counterparts, and by the different parties hereto in separate counterparts,
each of which when executed shall be deemed to be an original but all of which
taken together shall constitute one and the same agreement.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
WASTE MANAGEMENT, INC.
By:
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Name:
Title:
OCHO ACQUISITION CORPORATION
By:
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Name:
Title:
STOCKHOLDERS
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Xxxxxxx Xxxxxx
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Xxxxx X. Xxxxxxx, Xx.
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Xxxx Xxxxxx
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Xxxxxx X. Xxxxxxxxx
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Xxxxxx X. Xxxxxx
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Xxxxxxx X. Xxxxxxxx
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EXHIBIT A
LIST OF STOCKHOLDERS
Number of Shares of Company
Common Stock owned Beneficially
Name of Stockholder and of Record*
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1. Xxxxxxx Xxxxxx 1,298,781
2. Xxxxx X. Xxxxxxx, Xx. 940,074
3. Xxxx Xxxxxx 1,037,895
4. Xxxxxx X. Xxxxxxxxx 357,297
5. Xxxxxx X. Xxxxxx 50,000
6. Xxxxxxx X. Xxxxxxxx 101,885
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* Some of these numbers are approximate. Exact numbers will be provided as
soon as possible.
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