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EXHIBIT 2(a)
AGREEMENT OF MERGER
AGREEMENT OF MERGER ("Merger Agreement") dated as of May 6, 1994 by
and between OHM CORPORATION, a Delaware corporation ("OHM DELAWARE") and OHM
CORPORATION, an Ohio corporation ("OHM OHIO"). OHM DELAWARE and OHM OHIO are
hereinafter sometimes collectively referred to as the "Constituent
Corporations."
The authorized capital stock of OHM OHIO consists of 750 shares of
common stock, par value $0.10 per share, and all shares issued and outstanding
are owned by OHM Delaware. At the Effective Time (as defined in Section 1.07
hereof) the authorized capital stock of OHM OHIO will consist of Fifty Million
(50,000,000) shares of common stock, par value $0.10, One Million (1,000,000)
shares of Class A Preferred Stock and One Million (1,000,000) shares of Class B
Preferred Stock.
OHM DELAWARE, as the sole shareholder of OHM OHIO, desires to effect a
merger of OHM DELAWARE with and into OHM OHIO pursuant to the provisions of the
General Corporation Law of the State of Delaware (the "DGCL") and the General
Corporation Law of the State of Ohio (the "OGCL").
The respective Boards of Directors of OHM DELAWARE and OHM OHIO have
determined that it is advisable and in the best interests of each corporation
that OHM DELAWARE merge with and into OHM OHIO upon the terms and subject to
the conditions herein provided.
The Board of Directors of OHM OHIO has, by resolution duly adopted,
approved this Merger Agreement and directed that it be exercised by the
undersigned officers.
The Board of Directors of OHM DELAWARE has, by resolution duly
adopted, approved this Merger Agreement and directed that it be executed by the
undersigned officers and that it be submitted to a vote of the stockholders of
OHM DELAWARE.
In consideration of the mutual agreements herein contained, the
parties agree that OHM DELAWARE shall be merged with and into OHM OHIO and that
the terms and conditions of the merger, the mode of carrying the merger into
effect, the manner of converting the shares of Constituent Corporations and
certain other provisions relating thereto shall be as hereinafter set forth.
ARTICLE I
THE MERGER
1.01 Surviving Corporation. Subject to the terms and provisions of
this Merger Agreement, and in accordance with the DGCL and the OGCL, at the
Effective Time (as defined in Section 1.07 hereof) OHM DELAWARE shall be merged
with and into OHM OHIO (the "Merger"). OHM OHIO shall be the surviving
corporation (hereinafter sometimes called the "Surviving Corporation") of the
Merger and shall continue its corporate existence under the laws of the State
of Ohio. At the Effective Time, the separate corporate existence of OHM
DELAWARE shall cease.
1.02 Effect of the Merger. At the Effective Time, the Merger shall
have the effects provided for herein and in Section 1701.82 of the OGCL and
Section 259 of the DGCL.
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1.03 Articles of Incorporation. As of the Effective Time, the
Articles of Incorporation of OHM OHIO, as in effect immediately prior to the
Effective Time, shall be amended and replaced in their entirety by the Amended
and Restated Articles of Incorporation attached hereto as Annex 1 which Amended
and Restated Articles of Incorporation will become, at the Effective Time, the
Articles of Incorporation of the Surviving Corporation until thereafter duly
altered, amended or repealed in accordance with the provisions thereof and
applicable law.
1.04 Regulations. As of the Effective Time, the Regulations of OHM
OHIO, as in effect immediately prior to the Effective Time, shall be amended
and replaced in their entirety by the Regulations attached hereto as Annex 2
which Regulations will become, at the Effective Time, the Regulations of the
Surviving Corporation until thereafter duly altered, amended or repealed in
accordance with the provisions thereof, the Articles of Incorporation of the
Surviving Corporation and applicable law.
1.05 Directors of the Surviving Corporation. At the Effective
Time, each person who is a director of OHM DELAWARE immediately prior to the
Effective Time shall become a director of the Surviving Corporation and each
such person shall serve as a director of the Surviving Corporation for the
balance of the term for which such person was elected a director of OHM
DELAWARE and until his successor is duly elected and qualified in the manner
provided in the Regulations or the Articles of Incorporation of the Surviving
Corporation or as otherwise provided by law or until his earlier death,
resignation or removal in the manner provided in the Regulations or the
Articles of Incorporation of the Surviving Corporation or as otherwise provided
by law. OHM OHIO shall secure the resignation as director, effective as of the
Effective Time, of each person who is a director of OHM OHIO immediately prior
to the Effective Time.
1.06 Officers of the Surviving Corporation. At the Effective Time,
each person who is an officer of OHM DELAWARE immediately prior to the
Effective Time shall become an officer of the Surviving Corporation with each
such person to hold the same office in the Surviving Corporation, in accordance
with the Regulations thereof, as he held in OHM DELAWARE immediately prior to
the Effective Time. OHM OHIO shall secure the resignation, effective as of the
Effective Time, of each person who is an officer of OHM OHIO immediately prior
to the Effective Time, except such officers who hold the same positions with
OHM OHIO as they do in OHM DELAWARE.
1.07 Effective Time. The Merger shall become effective in
accordance with the provisions of Section 1701.81 of the OGCL and Section 253
of the DGCL, upon the later to occur of (a) completion of the filing of a
certificate of merger with the Secretary of State of the State of Ohio, and (b)
the filing of a certificate of ownership and merger with the Secretary of State
of the State of Delaware. The date and time when the Merger shall become
effective is herein referred to as the "Effective Time."
1.08 Cumulative Voting. At and after the Effective Time, no holder
of shares of OHM OHIO will be entitled to vote cumulatively in the election of
directors. The shares of common stock of OHM Delaware, par value $0.10 per
share, ("Delaware Common Stock") shall continue to be publicly traded over the
NYSE prior to the Effective Time and the shares of common stock of OHM OHIO,
par value $0.10 per share, ("Ohio Common Stock") will be publicly traded over
the New York Stock Exchange after the Effective Time.
1.09 Additional Actions. If, at any time after the Effective Time,
the Surviving Corporation shall consider or be advised that any further
assignments or assurances in law or any other acts are necessary or desirable
(a) to vest, perfect or confirm, of record or otherwise, in the Surviving
Corporation, title to and possession of any property or right of OHM DELAWARE
acquired or to be acquired by reason of, or as a result of, the Merger, or (b)
otherwise to carry out the purpose of this Merger Agreement, OHM DELAWARE and
its proper officers and directors shall be deemed to have granted hereby to the
Surviving Corporation an irrevocable power of attorney to execute and deliver
all such proper deeds, assignments and assurances in law and to do all acts
necessary or proper to vest, perfect or confirm title to and the possession of
such property or rights in the Surviving Corporation and otherwise to carry out
the purposes of this Merger Agreement; and the proper officers and directors of
the Surviving Corporation are hereby fully authorized in the name of OHM
DELAWARE or otherwise to take any and all such action.
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ARTICLE II
MANNER, BASIS AND EFFECT OF CONVERTING SHARES
2.01 Conversion of Shares. At the Effective Time:
(a) Each share of "Delaware Common Stock", issued and
outstanding immediately prior to the Effective Time shall, by virtue
of the Merger and without any action on the part of the holder
thereof, be converted into one fully paid and nonassessable share of
Ohio Common Stock;
(b) Each share of Delaware Common Stock held in the treasury
of OHM DELAWARE immediately prior to the Effective Time shall, by
virtue of the Merger and without any action on the part of OHM
DELAWARE, be converted into one fully paid and nonassessable share of
Ohio Common Stock and shall be held in the treasury of the Surviving
Corporation;
(c) Each share of Ohio Common Stock, issued and outstanding
immediately prior to the Effective Time shall, by virtue of the Merger
and without any action on the part of the holder thereof, be cancelled
and retired and shall cease to exist.
2.02 Effect of Conversion. At and after the Effective Time, each
share certificate which immediately prior to the Effective Time represented
outstanding shares of Delaware Common Stock ("Delaware Common Certificate")
shall be deemed for all purposes to evidence ownership of, and to represent,
the number of shares of Ohio Common Stock into which the shares of Delaware
Common Stock represented by such certificates immediately prior to the
Effective Time have been converted pursuant to Section 2.01 hereof. The
registered owner of any Delaware Common Certificate outstanding immediately
prior to the Effective Time, as such owner appears in the books and records of
OHM DELAWARE or its transfer agent immediately prior to the Effective Time,
shall, until such certificate is surrendered for transfer or exchange, have and
be entitled to exercise any voting and other rights with respect to and to
receive any dividends or other distributions on the shares of Ohio Common Stock
into which the shares represented by any such certificate have been converted
pursuant to Section 2.01 hereof.
2.03 Exchange of Certification. Each holder of a Delaware Common
Certificate shall, upon the surrender of such certificate to OHM OHIO or its
transfer agent for cancellation after the Effective Time, be entitled to
receive from OHM OHIO or its transfer agent a certificate representing the
number of shares of Ohio Common Stock into which the shares of Delaware Common
Stock represented by such certificate have been converted pursuant to Section
2.01 hereof.
2.04 Stock Option Plans. Each option to purchase shares of
Delaware Common Stock granted under any stock option plan as to which OHM
DELAWARE or any of its affiliates has assumed or incurred obligations
(hereinafter collectively referred to as the "Option Plans") which is
outstanding immediately prior to the Effective Time shall, by virtue of the
Merger and without any action on the part of the holder of any such option be
converted into and become an option to purchase the same number of shares of
Ohio Common Stock as the number of shares of Delaware Common Stock purchasable
under such option immediately prior to the Effective Time at the same option
price per share and upon the same terms and subject to the same conditions as
are in effect at the Effective Time. The Surviving Corporation shall reserve
for purposes of the Option Plans a number of shares of Ohio Common Stock equal
to the number of shares of Delaware Common Stock reserved by OHM DELAWARE for
issuance under the Option Plans as of the Effective Time. As of the Effective
Time, OHM OHIO hereby assumes the Option Plans and all obligations of OHM
DELAWARE under the Option Plans including the outstanding options or awards or
portions thereof granted or awarded pursuant thereto.
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ARTICLE III
APPROVAL; AMENDMENT; TERMINATION; MISCELLANEOUS
3.01 Approval. This Merger Agreement shall be submitted for
approval by the stockholders of OHM DELAWARE at its annual or at a special
meeting of stockholders.
3.02 Amendment. Subject to applicable law, this Merger Agreement
may be amended, modified or supplemented by written agreement of the
Constituent Corporations at any time prior to the Effective Time, except that
after the approval contemplated by Section 3.01 hereof, there shall be no
amendments that would (a) alter or change the amount or kind of shares to be
received by stockholders in the Merger, (b) alter or change any term of the
Articles of Incorporation or Regulations of OHM OHIO, as amended pursuant to
Section 1.03 hereof, or (c) alter or change any of the terms and conditions of
this Merger Agreement if such alteration or change would adversely affect the
holders of any class of stock of either of the Constituent Corporations.
3.03 Abandonment. At any time prior to the Effective Time, this
Merger Agreement may be terminated and the Merger may be abandoned by the Board
of Directors of either OHM OHIO or OHM DELAWARE, or both, notwithstanding
approval of this Merger Agreement by the sole shareholder of OHM OHIO or the
stockholders of OHM DELAWARE, or both.
3.04 Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original and the same
agreement.
3.05 Statutory Agent in Ohio. The name and address of the
statutory agent in Ohio upon whom any process, notice or demand against OHM
DELAWARE or the Surviving Corporation may be served is:
Randall M. Walters
OHM CORPORATION
16406 U.S. Route 224 East
Findlay, Ohio 45840
3.06 Designated Agent in Delaware. The Surviving Corporation
agrees that it may be served with process in the State of Delaware in any
proceeding for enforcement of any obligation of OHM DELAWARE, as well as for
enforcement of any obligation of the Surviving Corporation arising from the
Merger, and the Surviving Corporation irrevocably appoints the Delaware
Secretary of State as its agent to accept service of process in any such suit
or other proceedings; a copy of such process shall be mailed by the Delaware
Secretary of State to:
Randall M. Walters
OHM CORPORATION
16406 U.S. Route 224 East
Findlay, Ohio 45840
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IN WITNESS WHEREOF, OHM DELAWARE and OHM OHIO have caused this Merger
Agreement to be signed by their respective duly authorized officers as of the
date first above written.
OHM CORPORATION
ATTEST: (an Ohio corporation)
By: /s/ RANDALL M. WALTERS By: /s/ SAMUEL H. IAPALUCCI
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Randall M. Walters, Secretary Samuel H. Iapalucci,
President
OHM CORPORATION
ATTEST: (a Delaware corporation)
By: /s/ RANDALL M. WALTERS By: /s/ SAMUEL H. IAPALUCCI
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Randall M. Walters, Secretary Samuel H. Iapalucci,
Vice President and
Chief Financial Officer
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