Exhibit 99.2
STOCKHOLDERS SUPPORT AGREEMENT
STOCKHOLDERS SUPPORT AGREEMENT, dated as of August 16, 1998
(this "Agreement"), among WASTE MANAGEMENT, INC., a Delaware corporation
("Parent"), OCHO ACQUISITION CORPORATION, a Delaware corporation and a wholly
owned subsidiary of Parent ("Subsidiary"), and the stockholders whose names
appear on the signature pages of this Agreement (each a "Stockholder" and
collectively the "Stockholders").
WHEREAS, as of the date hereof, the Stockholders own of record
or has the power to vote the number of shares of Common Stock, par value $.01
per share ("Company Common Stock"), of Services Inc., a Delaware corporation
(the "Company ") as set forth opposite such Stockholder's name on Exhibit A
hereto (all such Company Common Stock and any shares of Company Common Stock of
which ownership of record or the power to vote is hereafter acquired by the
Stockholders prior to the termination of this Agreement being referred to herein
as the "Shares");
WHEREAS, Parent, Subsidiary and the Company propose to enter
into (i) an Agreement and Plan of Merger, dated as of even date herewith (as the
same may be amended from time to time, the "Merger Agreement"), which provides,
upon the terms and subject to the conditions thereof, for the merger of
Subsidiary with and into the Company (the "Merger") and (ii) an agreement
granting Parent an option on certain shares of Company Common Stock (the "Stock
Option Agreement"); and
WHEREAS, as a condition to the willingness of Parent to enter
into the Merger Agreement, Parent has requested that the Stockholders agree,
and, in order to induce Parent to enter into the Merger Agreement, the
Stockholders have agreed, jointly and severally, to enter into this Agreement;
NOW, THEREFORE, in consideration of the premises and of the
mutual agreements and covenants set forth herein and in the Merger Agreement,
and intending to be legally bound hereby, the parties hereto hereby agree as
follows:
ARTICLE I
TRANSFER AND VOTING OF SHARES
SECTION 1.01. Transfer of Shares. No Stockholder shall,
directly or indirectly, (a) sell (other than pursuant to any brokers'
transaction executed upon the
Stockholder's orders on any exchange or in the over the counter market), pledge
(other than in connection with margin accounts maintained by such Stockholder)
or otherwise dispose of any or all of such Stockholder's Shares, (b) deposit any
Shares into a voting trust or enter into a voting agreement or arrangement with
respect to any Shares or grant any proxy with respect thereto or (c) enter into
any contract, option or other arrangement or undertaking with respect to the
direct or indirect acquisition or sale (other than pursuant to any brokers'
transaction executed upon the Stockholder's orders on any exchange or in the
over the counter market), assignment, transfer or other disposition of any
Shares.
SECTION 1.02. Voting of Shares; Further Assurances. (a) Each
Stockholder, by this Agreement, with respect to the Shares set out in Exhibit A
hereto and any Shares hereinafter acquired by such Stockholder, does hereby
constitute and appoint Subsidiary, or any nominee of Subsidiary, with full power
of substitution, as his, her or its true and lawful attorney and proxy, for and
in his, her or its name, place and stead, to vote each of such Shares as his,
her or its proxy, at every annual, special or adjourned meeting of the
stockholders of the Company (including the right to sign his, her or its name
(as stockholder) to any consent, certificate or other document relating to the
Company that may be permitted or required by applicable law) (i) in favor of the
adoption of the Merger Agreement and approval of the Merger and the other
transactions contemplated by the Merger Agreement, (ii) against any transaction
pursuant to an Acquisition Proposal (as defined below) or any other action or
agreement that would result in a breach of any covenant, representation or
warranty or any other obligation or agreement of the Company under the Merger
Agreement or which could result in any of the conditions to the Company's
obligations under the Merger Agreement not being fulfilled, and (iii) in favor
of any other matter relating to consummation of the transactions contemplated by
the Merger Agreement. Each Stockholder further agrees to cause the number of
Shares as set forth opposite such Stockholder's name in Exhibit A hereto and all
Shares over which he has voting power to be voted in accordance with the
foregoing. Each Stockholder acknowledges receipt and review of a copy of the
Merger Agreement.
(b) Each Stockholder shall perform such further acts and
execute such further documents and instruments as may reasonably be required to
vest in Subsidiary the power to carry out the provisions of this Agreement.
(c) The obligations of the Stockholders pursuant to this
Article I shall terminate upon the earlier of (i) the Effective Time (as defined
in the Merger Agreement) (ii) (x) 180 days after the termination of the Merger
Agreement in case of termination that entitles Parent to a fee under Section 7.6
of the Merger Agreement, or (y) on the date of termination in the case of
termination for any other reason.
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ARTICLE II
REPRESENTATIONS AND WARRANTIES; COVENANTS OF THE STOCKHOLDER
The Stockholders hereby severally represent and warrant and
covenant to Subsidiary as follows:
SECTION 2.01. Organization; Authorization. (a) Such
Stockholder, if it is a corporation, is a corporation duly organized, validly
existing and in good standing under the laws of the jurisdiction of its
incorporation and has the requisite power and authority and all necessary
governmental approvals to own, lease and operate its properties and to carry on
its business as it is now being conducted, except where the failure to be so
organized, existing or in good standing or to have such power, authority and
governmental approvals would not prevent or delay the performance in any
material respect by such Stockholder of its obligations under this Agreement.
The execution and delivery of this Agreement and the consummation of the
transactions contemplated hereby have been duly authorized by all necessary
corporate action on the part of each Stockholder.
(b) Such Stockholder, if it is a limited partnership, (i) is a
limited partnership duly organized, validly existing and in good standing under
the laws of the jurisdiction of its organization, (ii) has all requisite
partnership power and authority to execute and deliver this Agreement and to
consummate the transactions contemplated hereby and (iii) the execution and
delivery of this Agreement and the consummation of the transactions contemplated
hereby have been duly authorized by all necessary action on the part of such
Stockholder, except, with respect to clauses (i) and (ii) above, where the
failure to be so organized, existing or in good standing or to have such power
and authority would not prevent or delay in any material respect performance by
such Stockholder of its obligations under this Agreement.
(c) Such Stockholder, if it is a trust, (i) is duly formed as
a trust under the laws of the jurisdiction of its formation and its trust
agreement is valid and in full force and effect, (ii) has all requisite power
and authority under its trust instruments to execute and deliver this Agreement
and to consummate the transactions contemplated hereby and (iii) the execution
and delivery of this Agreement and the consummation of the transactions
contemplated hereby have been duly authorized by all necessary action on the
part of such Stockholder, except, with respect to clauses (i) and (ii) above,
where the failure to be so formed or to have such power and authority would not
prevent or delay in any material respect performance by such Stockholder of its
obligations under this Agreement.
(d) Such Stockholder, if it is an individual, has all legal
capacity to execute and deliver this Agreement and to consummate the
transactions contemplated hereby.
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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 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 Improvement Act of 1976 and the rules and regulations promulgated
thereunder (the "HSR Act") and (ii) where the failure to obtain such consents,
approvals, authorizations or permits, or to make such filings or notifications,
would not prevent or materially delay the performance by such Stockholder of his
or its obligations under this Agreement.
SECTION 2.03. Title to Shares. Such Stockholder is the record
or beneficial owner of its Shares free and clear of any proxy or voting
restriction other than pursuant to this Agreement. Such Shares are all the
securities of the Company owned of record or beneficially by such Stockholder on
the date of this Agreement.
SECTION 2.04 Acquisition Proposals. Until the termination of
the Merger Agreement the Stockholder shall not, initiate, solicit, negotiate,
encourage or provide
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nonpublic or confidential information to facilitate, any proposal or offer to
acquire all or any substantial part of the business or properties of the Company
or any capital stock of the Company, whether by merger, purchase of assets,
tender offer or otherwise, whether for cash, securities or any other
consideration or combination thereof (any such transactions being referred to
herein as an "Acquisition Transaction") or participate in any negotiations
regarding, or furnish to any other person or entity any information with respect
to, or otherwise cooperate in any way with, or assist or participate in,
facilitate or encourage, any effort or attempt by any other person to do or seek
any of the foregoing; provided, however, that nothing in this Section 2.04 shall
prevent the Stockholder, in his capacity as a director or executive officer of
the Company from engaging in any activity permitted pursuant to Section 6.5 of
the Merger Agreement. From and after the execution of this Agreement, the
Stockholder shall promptly (but in any event within 48 hours) notify Parent
after receipt of any unsolicited written offer or proposal with respect to a
potential or proposed Acquisition Transaction ("Acquisition Proposal"),
indication of interest or request for nonpublic information relating to the
Company or its subsidiaries in connection with an Acquisition Proposal that the
Stockholder receives in his capacity as a Stockholder of the Company. Such
notice to Subsidiary shall be made orally and in writing and shall indicate in
reasonable detail the identity of the offeror and the terms and conditions of
such proposal, inquiry or contact.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF PARENT
Parent hereby represents and warrants to the Stockholders as
follows:
SECTION 3.01. Due Organization; Binding Agreement. Each of
Parent and Subsidiary is duly organized and validly existing under the laws of
the State of Delaware. Each of Parent and Subsidiary has all necessary corporate
power and authority to execute and deliver this Agreement and to consummate the
transactions contemplated hereby. The execution and delivery of this Agreement
and the consummation of the transactions contemplated hereby by Parent and
Subsidiary have been duly authorized by all necessary corporate action on the
part of each of Parent and Subsidiary. This Agreement has been duly executed and
delivered by each of Parent and Subsidiary and, assuming its due authorization,
execution and delivery by the Stockholders, constitutes a legal, valid and
binding obligation of each of Parent and Subsidiary, enforceable against each of
Parent and Subsidiary in accordance with its terms.
SECTION 3.02. No Conflict; Required Filings and Consents. (a)
The execution and delivery of this Agreement by Parent and Subsidiary does not,
and the performance of this Agreement by Parent and Subsidiary will not, (i)
conflict with or violate
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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
SECTION 4.01. Notices. All notices and other communications
given or made pursuant hereto shall be in writing and shall be given (and shall
be deemed to have been duly given upon receipt) by delivery in person, by cable,
telecopy, telegram or telex or by registered or certified mail (postage prepaid,
return receipt requested) to the respective parties at the following addresses
(or at such other address as shall be specified by notice given in accordance
with this Section 4.01):
(a) if to Parent or Subsidiary:
Waste Management, Inc.
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 for reference purposes only and shall not affect in any way the
meaning or interpretation of this Agreement.
SECTION 4.03. Severability. If any term or other provision of
this Agreement is invalid, illegal or incapable of being enforced by any rule of
law or public policy, all other conditions and provisions of this Agreement
shall nevertheless remain in full force and effect so long as the economic or
legal substance of the transactions contemplated hereby is not affected in any
manner materially adverse to any party. Upon such determination that any term or
other provision is invalid, illegal or incapable of being enforced, the parties
hereto shall negotiate in good faith to modify this Agreement so as to effect
the original intent of the parties as closely as possible to the fullest extent
permitted by applicable law in an acceptable manner to the end that the
transactions contemplated hereby are fulfilled to the extent possible.
SECTION 4.04. Entire Agreement. This Agreement constitutes the
entire agreement of the parties and supersedes all prior agreements and
undertakings, both written and oral, between the parties, or any of them, with
respect to the subject matter hereof.
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SECTION 4.05. Assignment. This Agreement shall not be assigned
by operation-of law or otherwise.
SECTION 4.06. Parties in Interest. This Agreement shall be
binding upon and inure solely to the benefit of each party hereto, and nothing
in this Agreement, express or implied, is intended to or shall confer upon any
person any right, benefit or remedy of any nature whatsoever under or by reason
of this Agreement.
SECTION 4.07. Specific Performance. The parties hereto agree
that irreparable damage would occur in the event any provision of this Agreement
was not performed in accordance with the terms hereof and that the parties shall
be entitled to specific performance of the terms hereof, in addition to any
other remedy at law or in equity.
SECTION 4.08. Governing Law. This Agreement shall be governed
by, and construed in accordance with, the laws of the State of Delaware
applicable to contracts executed in and to be performed in that State. All
actions and proceeding arising out of or relating to this Agreement shall be
heard and determined in any Delaware state or federal court. THE STOCKHOLDERS
AND SUBSIDIARY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE ANY RIGHT THEY MAY
HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED ON, ARISING OUT OF,
UNDER OR IN CONNECTION WITH, THIS AGREEMENT, OR ANY COURSE OF CONDUCT, COURSE OF
DEALING, STATEMENT (VERBAL OR WRITTEN) OR ACTION OF THE STOCKHOLDERS OR
SUBSIDIARY.
SECTION 4.09. Counterparts. This Agreement may be executed in
one or more counterparts, and by the different parties hereto in separate
counterparts, each of which when executed shall be deemed to be an original but
all of which taken together shall constitute one and the same agreement.
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IN WITNESS WHEREOF, the parties have executed this Agreement
as of the date first written above.
WASTE MANAGEMENT, INC.
By: /s/ Xxxx X. Xxxxx
----------------------------------
Name: Xxxx X. Xxxxx
Title: Chief Executive Officer
OCHO ACQUISITION CORPORATION
By: /s/ Xxxxxxx X. Xxxxxxxx
----------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Senior Vice President
and Secretary
STOCKHOLDERS
/s/ Xxxxxxx Xxxxxx
--------------------------------------
Xxxxxxx Xxxxxx
/s/ Xxxxx X. Xxxxxxx, Xx.
--------------------------------------
Xxxxx X. Xxxxxxx, Xx.
/s/ Xxxx Xxxxxx
--------------------------------------
Xxxx Xxxxxx
/s/ Xxxxxx X. Xxxxxxxxx
--------------------------------------
Xxxxxx X. Xxxxxxxxx
/s/ Xxxxxx X. Xxxxxx
--------------------------------------
Xxxxxx X. Xxxxxx
/s/ Xxxxxxx X. Xxxxxxxx
--------------------------------------
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*
------------------- -------------------------------
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.
