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Exhibit (10)(o)
SECURITIES PURCHASE AGREEMENT
This Securities Purchase Agreement dated April 19, 1999 (the
"Agreement") is made and entered into by and between Laidlaw Inc., a Canadian
corporation ("Laidlaw") and Laidlaw International Finance Corporation, an
Ireland corporation ("LIFC" and, together with Laidlaw, "Sellers")) and
Safety-Kleen Corp., a Delaware corporation (the "Company").
WHEREAS LIFC owns $350,000,000 aggregate principal amount of the 5% Subordinated
Convertible Pay in Kind Debentures due 2009 of the Company (the "Debentures").
WHEREAS LIFC desires to sell the Debentures and the Company desires to purchase
the Debentures on the terms and subject to the conditions set forth in this
Agreement.
NOW THEREFORE in consideration of the mutual convenants and agreements set forth
in this Agreement and for other good and valuable consideration the receipt and
sufficiency of which are hereby acknowledged the parties hereto agree as
follows:
ARTICLE I
Sale of Debentures and Closing
1.1 Purchase and Sale
At the Closing and on the terms and subject to the condition set forth in
this Agreement, LIFC agrees to sell to the Company all of the right, title and
interest of LIFC in and to the Debentures and the Company agrees to purchase
from LIFC all of the Debentures.
1.2 Purchase Price
The Purchase Price for the Debentures shall be $200 million payable in
immediately available United States funds at the Closing and 11,320,755 shares
of common stock of the Company, par value $1.00 per share (the "Common Stock"),
to be issued and delivered by the Company to LIFC at the Closing, together with
accrued and unpaid interest to (but not including) the date of Closing payable
in accordance with the provisions of the Debentures, it being understood that,
as provided in the Debentures, interest accruing until May 15, 1999 shall be
paid in Common Stock and interest accruing thereafter may, at the option of the
Company, be paid in cash or in Common Stock.
1.3 Closing
The Closing will take place at the head offices of the Company as promptly
as practicable after satisfaction or waiver of the conditions set forth in
Article IV hereof. At the Closing the Company will pay the cash purchase price
to LIFC by wire transfer of immediately available funds to such account or
accounts as LIFC may reasonably direct and deliver to LIFC certificates for the
shares of Common Stock of the Company and LIFC will assign and transfer to the
Company all of LIFC's right, title and interest in and to the Debentures by
delivering to the
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Company one or more certificates representing the Debentures in genuine and
unaltered form, duly endorsed in blank.
ARTICLE II
Representations and Warranties
2.1 Representations and Warranties of Sellers
Laidlaw and LIFC, jointly and severally, hereby represent and warrant to
the Company as follows:
(a) Organization. Each of Laidlaw and LIFC is a corporation duly
organized, validly existing and in good standing under the laws of Canada and
Ireland, respectively. Each of Laidlaw and LIFC has full corporate power and
authority to execute and deliver this Agreement and to perform its obligations
hereunder and to consummate the transactions contemplated hereby, including
without limitation to own, hold, sell and transfer (pursuant to this Agreement)
the Debentures owned by LIFC.
(b) Title to Debentures. LIFC has good and valid title to the Debentures,
free and clear of all liens and encumbrances and the delivery of one or more
certificates at the Closing representing the Debentures in the manner provided
in Section 1.3 will transfer to the Company good and valid title to the
Debentures, free and clear of all liens and encumbrances.
(c) Authority. The execution and delivery by each of Laidlaw and LIFC of
this Agreement and the performance by each of Laidlaw and LIFC of its
obligations hereunder have been duly and validly authorized, no other action on
the part of Laidlaw, LIFC or their stockholders being necessary. This Agreement
has been duly and validly executed and delivered by each of Laidlaw and LIFC and
constitutes a legal, valid and binding obligation of each of Laidlaw and LIFC
enforceable against each of Laidlaw and LIFC in accordance with its terms,
except to the extent such enforceability may be limited by (i) bankruptcy,
insolvency, reorganization, moratorium or other similar laws relating to or
affecting generally the enforcement of creditors' rights and (ii) the
availability of equitable remedies (whether in a proceeding in equity or at
law).
(d) No Conflicts. The execution and delivery by each of Laidlaw and LIFC
of this Agreement do not, and the performance by each of Laidlaw and LIFC of its
obligations under this Agreement and the consummation of the transactions
contemplated hereby will not:
(i) conflict with or result in a violation or breach of any of the terms,
conditions or provisions of the certificate or articles of incorporation or
by-laws (or other comparable charter documents) of Laidlaw or LIFC;
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(ii) conflict with or result in a violation or breach of any term or
provision of any law or order applicable to Laidlaw or LIFC or other Debenture;
or
(iii) (A) conflict with or result in a violation or breach of, (B)
constitute (with or without notice or lapse of time or both) a default under,
(C) require Laidlaw or LIFC to obtain any consent from any person as a result or
under the terms of, or (D) result in the creation or imposition of any lien
(other than such liens as may be created by this Agreement) upon the Debentures
or any other assets of Laidlaw or LIFC under, any contract to which Laidlaw or
LIFC is a party.
(e) Governmental Approvals and Filings. Other than the filing of a
Schedule 13D and applicable forms under Section 16 as required under the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), no consent,
approval or action of, filing with or notice to any governmental or regulatory
authority on the part of Laidlaw or LIFC is required in connection with the
execution, delivery and performance of this Agreement or the consummation of the
transactions contemplated hereby.
(f) Legal Proceedings. As of the date of this Agreement, there are no
actions or proceedings pending or, to the knowledge of Laidlaw or LIFC,
threatened against, relating to or affecting Laidlaw or LIFC (or, to the
knowledge of Laidlaw or LIFC, the Company) which could reasonably be expected to
result in the issuance of an order restraining, enjoining or otherwise
prohibiting or making illegal the consummation of any of the transactions
contemplated by this Agreement.
(g) The Sellers acknowledge that the sale of the Common Stock hereunder
has not been registered under the Securities Act of 1933, as amended (the "Act")
and is being made in reliance upon federal and state exemptions for transactions
not involving a public offering. The Sellers represent that each is an
"accredited investor" (as defined in Regulation D under the Act) and that they
are acquiring the shares of Common Stock for investment purposes only and not
with a view toward distribution of such shares. The Sellers have sufficient
knowledge and experience in financial and business matters so as to be capable
of evaluating an investment in the Common Stock.
(h) Brokers. All negotiations relative to this Agreement and the
transactions contemplated hereby have been carried out by Laidlaw and LIFC
directly with the Company without the intervention of any person on behalf of
such Seller in such manner as to give rise to any valid claim by any person
against the Company for a finder's fee, brokerage commission or similar payment,
except TD Securities (USA) Inc., NationsBanc Montgomery Securities LLC and
Raymond James & Associates, Inc. whose fees with respect to the Financing (as
defined herein) shall be payable by the Company.
2.2 Representations and Warranties of the Company
The Company hereby represents and warrants to Sellers as follows:
(a) Organization. The Company is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware. The
Company has full corporate power and authority to execute and deliver this
Agreement and to perform its obligations hereunder and to
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consummate the transactions contemplated hereby, including without limitation to
purchase (pursuant to this Agreement) the Debentures.
(b) Authority. The execution and delivery by the Company of this Agreement
and the performance by the Company of its obligations hereunder have been duly
and validly authorized and, except for approval by the Company's stockholders of
the issuance of the shares of Common Stock contemplated in this Agreement, no
other action on the part of the Company being necessary. This Agreement has been
duly and validly executed and delivered by the Company and constitutes a legal,
valid and binding obligation of the Company enforceable against the Company in
accordance with its terms, except to the extent such enforceability may be
limited by (i) bankruptcy, insolvency, reorganization, moratorium or other
similar laws relating to or affecting generally the enforcement of creditors'
rights and (ii) the availability of equitable remedies (whether in a proceeding
in equity or at law).
(c) No Conflicts. Except for the consent of several banks and other
financial institutions or entities from time to time parties to the Company's
Amended and Restated Credit Agreement dated April 3, 1998 (as amended,
supplemented or otherwise modified from time to time) and the consent of the
holder(s) of the Promissory Note dated May 15, 1997, in the principal amount of
$60,000,000 (as amended, supplemented or otherwise modified from time to time)
made by the Company in favor of Westinghouse Electric Corporation, the execution
and delivery by the Company of this Agreement do not, and the performance by the
Company of its obligations under this Agreement and the consummation of the
transactions contemplated hereby will not:
(i) conflict with or result in a violation or breach of any of the terms,
conditions or provisions of the certificate or by-laws of the Company;
(ii) conflict with or result in a violation or breach of any term or
provision of any law or order applicable to the Company or the Debentures,
except as would not, in the aggregate, have a material adverse effect on the
business or condition of the Company or the consummation of the transactions
contemplated hereby;
(iii) (A) conflict with or result in a violation or breach of, (B)
constitute (with or without notice or lapse of time or both) a default under, or
(C) require the Company to obtain any consent from any person as a result or
under the terms of, any contract to which the Company is a party, except as
would not, in the aggregate, have a material adverse effect on the business or
condition of the Company or the consummation of the transactions contemplated
hereby.
(d) Status of Company Common Shares. Upon their issuance as provided in
Section 1.3, the Common Stock issued to LIFC will be duly authorized, validly
issued, fully paid and non-assessable.
(e) SEC Filings. The Company has filed all forms, reports and documents
required to be filed with the Securities and Exchange Commission (the "SEC")
since September 1, 1998 and the Company has made available to the Seller true
and complete copies of (i) the Company's Annual Report on Form 10-K for the year
ended August 31, 1998 and (ii) all other reports, statements and registration
statements (including Current Reports on Form 8-K) filed by the Company with the
SEC since September 1, 1998 (collectively, the "Company SEC Filings"). The
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Company SEC Filings (including all financial statements or schedules included in
them) (i) were prepared in compliance in all material respects with the
requirements of the Securities Act or the Exchange Act, as the case may be, and
(ii) did not at the time of filing (or if amended, supplemented or superseded by
a later filing, on the date of the later filing) contain any untrue statement of
a material fact or omit to state a material fact required to be stated therein
or necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading.
(f) Company Financial Statements. The consolidated balance sheets and
consolidated statements of income, stockholders' equity and cash flows of the
Company and its subsidiaries included in the Company SEC Filings fairly present
in all material respects the consolidated financial position of the Company and
its subsidiaries at their respective dates and the consolidated results of
operations of the Company and its subsidiaries for the respective periods then
ended, in accordance with U.S. GAAP.
(g) Governmental Approvals and Filings. Other than filings, notices and
approvals required under the rules of the New York Stock Exchange, the Pacific
Stock Exchange and the Exchange Act, no consent, approval or action of, filing
with or notice to any governmental or regulatory authority on the part of the
Company is required in connection with the execution, delivery and performance
of this Agreement.
(h) Legal Proceedings. As of the date of this Agreement, there are no
actions or proceedings pending or, to the knowledge of the Company, threatened
against, relating to or affecting the Company which could reasonably be expected
to result in the issuance of an order restraining, enjoining or otherwise
prohibiting or making illegal the consummation of any of the transactions
contemplated by this Agreement.
(i) Brokers. All negotiations relative to this Agreement and the
transactions contemplated hereby have been carried out by the Company directly
with Sellers without the intervention of any person on behalf of the Company in
such manner as to give rise to any valid claim by an person against Sellers or
the Company for a finder's fee, brokerage commission or similar payment, except
for TD Securities (USA) Inc., NationsBanc Montgomery Securities LLC and Raymond
James & Associates, Inc. whose fees with respect to the Financing shall be
payable by the Company.
ARTICLE III
Covenants
3.1 Covenants of Sellers
Each Seller, jointly and severally, covenants and agrees with the Company
that:
(a) Notice and Cure. Seller will notify the Company in writing of, and
contemporaneously will provide the Company with true and complete copies of any
and all information or documents
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relating to, and will use all commercially reasonable efforts to cure before the
Closing, any event, transaction or circumstance, as soon as practicable after it
becomes known to Seller, occurring after the date of this Agreement that causes
or will cause any covenant or agreement of Seller under this Agreement to be
breached or that renders or will render untrue any representation or warranty of
Seller contained in this Agreement as if the same were made on or as of the date
of such event, transaction or circumstance.
3.2 Covenants of the Company
The Company covenants and agrees with Sellers that:
(a) Company Stockholders' Meeting. The Company shall call a special
meeting of the holders of Company common stock to be held to approve the
issuance of the Company common shares contemplated by this Agreement as soon as
practicable. Subject to fiduciary duties under applicable laws, the Company will
recommend to its stockholders approval of the matters referred to above and
agrees to use its reasonable best efforts to obtain a favorable vote thereon.
(b) NYSE. The Company will promptly take all reasonable actions to obtain
all approvals required under the rules and regulations of the New York Stock
Exchange in connection with the transactions contemplated by this Agreement.
(c) Notice and Cure. The Company will notify Sellers in writing of, and
contemporaneously will provide Sellers with true and complete copies of any and
all information or documents relating to, and will use all commercially
reasonable efforts to cure before the Closing, any event, transaction or
circumstance, as soon as practicable after it becomes known to the Company,
occurring after the date of this Agreement that causes or will cause any
covenant or agreement of the Company under this Agreement to be breached or that
renders or will render untrue any representation or warranty of the Company
contained in this Agreement as if the same were made on or as of the date of
such event, transaction or circumstance. No notice given pursuant to this
Section shall have any effect on the representations, warranties, covenants or
agreements contained in this Agreement for purposes of determining satisfaction
of any condition contained herein.
(d) Financing. The Company will use commercially reasonable efforts to
obtain the financing (the "Financing") and the Required Consents for the
Company's purchase of the Debentures from Sellers on such terms as are
satisfactory to the Company, and to obtain on the date of Closing the funds
contemplated to be raised by such Financing.
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ARTICLE IV
Conditions
4.1 Sellers' Conditions
The obligation of Sellers hereunder to sell the Debentures are subject to
the fulfillment, at or before the Closing, of each of the following conditions
(all or any of which may be waived in whole or in part by Sellers in their sole
discretion):
(a) Representations and Warranties. Each of the representations and
warranties made by the Company in this Agreement shall be true and correct in
all material respects on and as of the Closing date as though such
representation or warranty was made on and as of the Closing date.
(b) Performance. The Company shall have performed and complied with, in
all material respects, each agreement, covenant and obligation required by this
Agreement to be so performed or complied with by the Company at or before the
Closing.
(c) No Orders. There shall not be in effect on the Closing date any order
restraining, enjoining or otherwise prohibiting or making illegal the
consummation of any of the transactions contemplated by this Agreement.
(d) Purchase of Debentures. The Company shall have paid to Sellers the
cash purchase price for the Debentures and issued to Sellers the Common Stock
contemplated by this Agreement.
4.2 The Company's Conditions
The obligation of Company hereunder to purchase the Debentures is subject
to the fulfillment, at or before the Closing, of each of the following
conditions (all or any of which may be waived in whole or in part by the Company
in its sole discretion):
(a) Representations and Warranties. Each of the representations and
warranties made by Sellers in this Agreement shall be true and correct in all
material respects on and as of the Closing date as though such representation or
warranty was made on and as of the Closing date.
(b) Performance. Sellers shall have performed and complied with, in all
material respects, each agreement, covenant and obligation required by this
Agreement to be so performed or complied with by Sellers at or before the
Closing.
(c) Consents and Approvals. The matters submitted to the Company's
stockholders as set forth in Section 3.2(a) of this Agreement shall have been
approved by the requisite vote of the holders of the Common Stock and the New
York Stock Exchange shall have approved the listing of the shares of Common
Stock to be issued to LIFC pursuant to this Agreement.
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(d) No Orders. There shall not be in effect on the date of Closing any
order restraining, enjoining or otherwise prohibiting or making illegal the
consummation of any of the transactions contemplated by this Agreement.
(e) Financing. The Company shall have consummated the Financing and shall
have obtained the Required Consents on terms and conditions satisfactory to the
Company.
(f) Delivery of Debentures. All of the Debentures, and not just a portion
thereof, shall have been delivered for sale by Sellers duly endorsed in blank
for transfer.
ARTICLE V
Termination
5.1 Termination
This Agreement may be terminated, and the transactions contemplated hereby
may be abandoned:
(a) at any time before the Closing, by mutual written agreement of Sellers
and the Company; or
(b) at any time after August 31, 1999, by Sellers or the Company, upon
notification to the non-terminating parties by the terminating party if the
Closing shall not have occurred on or before such date and such failure to
consummate is not caused by a breach of its Agreement by the terminating party
(it being understood that the Company shall not be in breach of this Agreement
if it cannot obtain the Financing, the Required Consents or the required
stockholder approval if it has complied with its covenants under Section 3.2).
5.2 Effect of Termination
If this Agreement is validly terminated pursuant to Section 5.1, this
Agreement will forthwith become null and void, and there will be no liability or
obligation on the part of Sellers or the Company (or any of their respective
officers, directors, employees, agents or other representatives or affiliates),
except as provided in the next succeeding sentence. Notwithstanding any other
provision in this Agreement to the contrary, upon termination of this Agreement
pursuant to Section 5.1(b), each party will remain liable to the other parties
for any willful breach of this Agreement by such party existing at the time of
such termination, and such other parties may seek such remedies, including
damages and fees of attorneys, against the other with respect to any such breach
as are provided in this Agreement or as are otherwise available at law or in
equity.
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ARTICLE VI
Miscellaneous
6.1 Restrictive Legend
Sellers agree that the shares of Common Stock to be issued by the Company
to LIFC at the Closing will be inscribed with the following restrictive legend:
"The shares represented by this certificate have not been registered (or
qualified by prospectus) under the United States Securities Act of 1933, as
amended, or the securities laws of any state of the United States or any
province of Canada. Such shares may not be offered, sold, transferred, pledged,
hypothecated or otherwise disposed of in the absence of such a registration
thereunder other than pursuant to an exemption from such registration or
prospectus requirements and delivery to Safety-Kleen Corp. of an opinion of
counsel reasonably satisfactory to it to the effect that such transfer is exempt
from registration under those laws."
6.2 Stock Registration Agreement
Sellers and the Company agree that the provisions of the Stock
Registration Agreement dated May 15, 1997 between the Company and Laidlaw shall
apply to the shares of Common Stock to be issued to Sellers pursuant to the
provisions of this Agreement.
6.3 Further Assurances
The parties hereto will execute and deliver at or prior to the Closing
each agreement and other document that such party is required hereby to execute
and deliver as a condition to the Closing, and will take all commercially
reasonable steps necessary or desirable and proceed diligently and in good faith
to satisfy each condition to the obligations of such party contained in this
Agreement and will not take or fail to take any action that could reasonably be
expected to result in the non-fulfillment of any such condition. At the Closing
and from time to time thereafter, the parties hereto shall execute and deliver
such other documents and instruments, provide such materials and information and
take such other actions as may be reasonably requested to cause such party to
fulfill its obligations under this Agreement.
6.4 Entire Agreement
This Agreement supersedes all prior discussions and agreements between the
parties with respect to the subject matter hereof and this Agreement contains
the sole and entire agreement between the parties hereto with respect to the
subject matter hereof.
6.5 Amendment
This Agreement may be amended, supplemented or modified only by a written
instrument duly executed by or on behalf of each party hereto.
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6.6 Agreement to Perform
Laidlaw agrees to cause LIFC to perform all of its obligations under this
Agreement in a timely manner.
6.7 Remedies
No remedy or election hereunder shall be deemed exclusive but shall,
wherever possible, be cumulative with all other remedies at law or in equity.
Notwithstanding the foregoing, the parties acknowledge that it will be
impossible to measure in money the damage caused by any failure of either party
to comply with its agreements set forth herein, that each such agreement is
material, and that in the event of any such failure, the other party will not
have an adequate remedy at law or in damages. Therefore, each party consents to
the issuance of an injunction or the enforcement of other equitable remedies
against such party at the suit of the other party, without bond or other
security, to compel performance of all of the terms hereof, and each party
hereby waives the defense of availability of relief in damages.
6.8 Governing Law
This Agreement shall be governed by and construed in accordance with the
laws of the State of Delaware applicable to a contract executed and performed in
such State, without giving effect to the conflicts of laws principles thereof.
IN WITNESS WHEREOF this Agreement has been duly executed and delivered by
the duly authorized officers of each party hereto as of the date first above
written.
Laidlaw Inc.
By: /s/ James R. Bullock
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Name: James R. Bullock
Title: President
Laidlaw International Finance Corporation
By: /s/ Fergus O'Donnell
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Name: Fergus O'Donnell
Title: Secretary
By: /s/ David MacNeice
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Name: David MacNeice
Title: Director
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Safety-Kleen Corp.
By: /s/ Kenneth W. Winger
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Name: Kenneth W. Winger
Title: President