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Exhibit 10(d)
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WARRANT AGREEMENT
by and between
WMX TECHNOLOGIES, INC.
and
OHM CORPORATION
Dated as of May 30, 1995
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TABLE OF CONTENTS
PAGE
1. GRANT OF WARRANT . . . . . . . . . . . . . . . . . . . . . . . . 2
1.1 Grant . . . . . . . . . . . . . . . . . . . . . . . . . 2
1.2 Shares To Be Issued; Reservation of Shares . . . . . . . 2
2. ADJUSTMENTS TO WARRANT RIGHTS . . . . . . . . . . . . . . . . . 2
2.1 Stock Combinations . . . . . . . . . . . . . . . . . . . 2
2.2 Reorganizations . . . . . . . . . . . . . . . . . . . . 2
2.3 Adjustment Upon Changes in Capitalization . . . . . . . 3
2.4 Notice . . . . . . . . . . . . . . . . . . . . . . . . . 3
2.5 Fractional Interests . . . . . . . . . . . . . . . . . . 4
2.6 Effect of Alternate Securities . . . . . . . . . . . . . 4
2.7 Successive Application . . . . . . . . . . . . . . . . . 4
3. EXERCISE . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
3.1 Exercise of Warrant . . . . . . . . . . . . . . . . . . 5
3.2 Issuance of Warrant Shares . . . . . . . . . . . . . . . 5
4. RIGHTS OF HOLDER . . . . . . . . . . . . . . . . . . . . . . . . 5
5. TRANSFERABILITY . . . . . . . . . . . . . . . . . . . . . . . . 5
6. LEGEND ON WARRANT SHARES . . . . . . . . . . . . . . . . . . . . 5
7. REGISTRATION RIGHTS . . . . . . . . . . . . . . . . . . . . . . 5
7.1 Transfer of Registration Rights . . . . . . . . . . . . 6
7.2 Piggyback Registration . . . . . . . . . . . . . . . . . 6
7.3 Registration Procedures . . . . . . . . . . . . . . . . 7
7.4 Further Information . . . . . . . . . . . . . . . . . . 9
8. MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . . . 9
8.1 Amendments . . . . . . . . . . . . . . . . . . . . . . . 9
8.2 Notices . . . . . . . . . . . . . . . . . . . . . . . . 9
8.3 Waiver By Consent . . . . . . . . . . . . . . . . . . . 10
8.4 No Implied Waiver; Rights Are Cumulative . . . . . . . . 10
8.5 Governing Law . . . . . . . . . . . . . . . . . . . . . 10
8.6 Severability . . . . . . . . . . . . . . . . . . . . . . 11
8.7 Captions . . . . . . . . . . . . . . . . . . . . . . . . 11
8.8 Entire Agreement . . . . . . . . . . . . . . . . . . . . 11
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THE SECURITIES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "ACT") OR UNDER ANY APPLICABLE
STATE LAW AND MAY NOT BE TRANSFERRED, SOLD OR OTHERWISE DISPOSED OF IN
THE ABSENCE OF AN EFFECTIVE REGISTRATION UNDER THE ACT OR AN OPINION
OF COUNSEL REASONABLY SATISFACTORY TO THE ISSUER THAT SUCH
REGISTRATION IS NOT REQUIRED UNDER THE ACT AND THE RULES AND
REGULATIONS PROMULGATED THEREUNDER OR SUCH STATE SECURITIES LAWS. THE
SECURITIES EVIDENCED HEREBY ARE SUBJECT TO THE PROVISIONS OF AN
AGREEMENT, DATED MAY 30, 1995, AMONG OHM CORPORATION, RUST
INTERNATIONAL INC. AND WMX TECHNOLOGIES, INC., A COPY OF WHICH IS ON
FILE AT THE OFFICE OF THE SECRETARY OF OHM CORPORATION.
WARRANT AGREEMENT
This WARRANT AGREEMENT (the "Warrant") is being entered into
this 30th day of May, 1995, by and between OHM Corporation, an Ohio corporation
(together with its successors and permitted assigns, the "Company") and WMX
Technologies, Inc., a Delaware corporation (together with his successors and
permitted assigns, the "Buyer"). Capitalized terms used herein and not
otherwise defined herein shall have the meanings ascribed to them in the
Standstill Agreement (as defined below).
RECITALS
WHEREAS, the Company and Buyer have entered into a Guarantee
Agreement of even date herewith pursuant to which Buyer has agreed to guarantee
certain indebtedness of the Company and the Company has agreed to grant to
Buyer the right to purchase Seven Hundred Thousand (700,000) additional shares
of the Company's common stock, par value $.10 per share (the "Common Stock"),
at an exercise price of fifteen dollars ($15.00) per share pursuant to the
terms and conditions of this Warrant; and
WHEREAS, the Company, Rust International Inc. ("Rust") and
Buyer have entered into a Standstill and Non-Competition Agreement dated as of
the date hereof (the "Standstill Agreement") pursuant to which Rust and Buyer
have agreed to certain limitations on their aggregate ownership of the Company,
which limitations shall also apply to any shares of Common Stock issued
pursuant to this Warrant;
NOW, THEREFORE, for the consideration set forth in the
Guarantee Agreement and other good and valuable consideration, the sufficiency
and receipt of which is hereby acknowledged, the Company agrees with Buyer as
follows:
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1. GRANT OF WARRANT.
1.1 GRANT. The Company hereby grants to Buyer this
Warrant, which, subject to the terms and conditions of the Standstill
Agreement, is exercisable as provided herein, in whole or in part, at any time
and from time to time during the period commencing on the date hereof (the
"Closing Date") and ending on the fifth anniversary of the Closing Date at 6:00
p.m., local time in New York, New York, (the "Exercise Period") to purchase an
aggregate of up to Seven Hundred Thousand (700,000) shares of Common Stock (the
"Warrant Shares"), at an exercise price of fifteen dollars ($15.00) per share
(as it may be hereinafter adjusted, the "Exercise Price"). Buyer and its
permitted successors and assigns are hereinafter referred to as "Holder."
1.2 SHARES TO BE ISSUED; RESERVATION OF SHARES. The
Company covenants and agrees that all Warrant Shares will, upon issuance, be
duly authorized, validly issued and outstanding, fully paid and non-assessable,
and free from all taxes, liens and charges with respect to the issuance
thereof, except as otherwise provided in the Reorganization Agreement. The
Company further covenants and agrees that it will from time to time take all
actions required to assure that the par value per share of the Common Stock is
at all times equal to or less than the effective Exercise Price. The Company
further covenants and agrees that, during the Exercise Period, the Company will
at all times have authorized and reserved sufficient shares of Common Stock to
provide for the exercise of this Warrant in full.
2. ADJUSTMENTS TO WARRANT RIGHTS.
2.1 STOCK COMBINATIONS. In case the Company shall
combine all of the outstanding Common Stock proportionately into a smaller
number of shares, the Exercise Price per Warrant Share hereunder in effect
immediately prior to such combination shall be proportionately increased and
the number of Warrant Shares issuable to the Holder upon exercise of this
Warrant shall be proportionately decreased, as of the effective date of such
combination, as follows: (a) the number of Warrant Shares purchasable upon the
exercise of the Warrant immediately prior to the effective date of such
combination, shall be adjusted so that the holder of the Warrant exercised
after that date shall be entitled to receive the number and kind of Warrant
Shares which the holder of the Warrant would have owned and been entitled to
receive as a result of the combination had the Warrants been exercised
immediately prior to that date, and (b) the Exercise Price in effect
immediately prior to such adjustment shall be adjusted by multiplying such
Exercise Price by a fraction, the numerator of which is the aggregate number of
shares of Common Stock purchasable upon exercise of the Warrants immediately
prior to such adjustment, and the denominator of which is the aggregate number
of shares of Common Stock purchasable upon exercise of the Warrants immediately
thereafter.
2.2 REORGANIZATIONS. If any of the following
transactions (each, a "Special Transaction") shall become effective after the
Closing Date: (i) a capital reorganization or reclassification of the capital
stock of the Company, (ii) a consolidation or merger of the Company with and
into another entity, or (iii) a sale or conveyance of all or substantially all
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of the Company's assets, then, as a condition of any such Special Transaction,
lawful and adequate provision shall be made whereby the Holder shall thereafter
have the right to purchase and receive, at any time after the consummation of
such Special Transaction until the expiration of the Exercise Period, upon the
basis and upon the terms and conditions specified herein, and in lieu of the
Warrant Shares immediately theretofore issuable upon exercise of this Warrant
for the aggregate Exercise Price in effect immediately prior to such
consummation, such shares of stock, other securities, cash or other assets as
may be issued or payable in and pursuant to the terms of such Special
Transaction with respect to or in exchange for a number of outstanding shares
of Common Stock equal to the number of Warrant Shares immediately theretofore
issuable upon exercise of this Warrant had such Special Transaction not taken
place (pro rated in the case of any partial exercises). In connection with any
Special Transaction, appropriate provision shall be made with respect to the
rights and interests of the Holder to the end that the provisions of this
Warrant (including without limitation provisions for adjustment of the Exercise
Price and the number of Warrant Shares issuable upon the exercise of the
Warrant), shall thereafter be applicable, as nearly as may be, to any shares of
stock, other securities, cash or other assets thereafter deliverable upon the
exercise of this Warrant. The Company shall not effect any Special Transaction
unless prior to or simultaneously with the closing the successor entity (if
other than the Company), if any, resulting from such consolidation or merger or
the entity acquiring such assets shall assume by a written instrument executed
and mailed by certified mail or delivered to the Holder at the address of the
Holder appearing on the books of the Company, the obligation of the Company or
such successor corporation to deliver to such Holder such shares of stock,
securities, cash or other assets as, in accordance with the foregoing
provisions, such Holder has rights to purchase.
2.3 ADJUSTMENT UPON CHANGES IN CAPITALIZATION. In the
event of any change in the Common Stock by reason of stock dividends, stock
splits, recapitalizations or reclassifications, the type and number of Warrant
Shares issuable upon exercise of this Warrant, and the Exercise Price, as the
case may be, shall be adjusted as follows: (a) the number of Warrant Shares
purchasable upon the exercise of the Warrant immediately prior to the record
date for such dividend or distribution, or the effective date of such
recapitalization or reclassification shall be adjusted so that the holder of
the Warrant exercised after that date shall be entitled to receive the number
and kind of Warrant Shares which the holder of the Warrant would have owned and
been entitled to receive as a result of the dividend, distribution,
recapitalization or reclassification had the Warrants been exercised
immediately prior to that date, and (b) the Exercise Price in effect
immediately prior to such adjustment shall be adjusted by multiplying such
Exercise Price by a fraction, the numerator of which is the aggregate number of
shares of Common Stock purchasable upon exercise of the Warrants immediately
prior to such adjustment, and the denominator of which is the aggregate number
of shares of Common Stock purchasable upon exercise of the Warrants immediately
thereafter. No such adjustment shall be made on account of any dividend
payable other than in securities of the Company.
2.4 NOTICE. Whenever this Warrant or the number of
Warrant Shares issuable hereunder is to be adjusted as provided herein or a
dividend or distribution (in cash, stock or otherwise and including, without
limitation, any liquidating distributions) is to be
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declared by the Company, or a definitive agreement with respect to a Special
Transaction has been entered into, the Company shall forthwith cause to be sent
to the Holder at the last address of the Holder shown on the books of the
Company, by first-class mail, postage prepaid, at least ten (10) days prior to
the record date specified in (A) below or at least twenty (20) days before the
date specified in (B) below, a notice stating in reasonable detail the relevant
facts and any resulting adjustments and the calculation thereof, if applicable,
and stating (if applicable):
(A) the date to be used to determine (i) which
holders of Common Stock will be entitled to receive notice of such dividend,
distribution, subdivision or combination (the "Record Date"), and (ii) the date
as of which such dividend distribution, subdivision or combination shall be
made; or, if a record is not to be taken, the date as of which the holders of
Common Stock of record to be entitled to such dividend, distribution,
subdivision or combination are to be determined (provided, that in the event
the Company institutes a policy of declaring cash dividends on a periodic
basis, the Company need only provide the relevant information called for in
this clause (A) with respect to the first cash dividend payment to be made
pursuant to such policy and thereafter provide only notice of any changes in
the amount or the frequency of any subsequent dividend payments), or
(B) the date on which a Special Transaction is
expected to become effective, and the date as of which it is expected that
holders of Common Stock of record shall be entitled to exchange their shares of
Common Stock for securities or other property deliverable upon consummation of
the Special Transaction (the "Exchange Date").
2.5 FRACTIONAL INTERESTS. The Company shall not be
required to issue fractions of shares of Common Stock on the exercise of this
Warrant. If any fraction of a share of Common Stock would, except for the
provisions of this Section 2.5, be issuable upon the exercise of this Warrant,
the Company shall, upon such issuance, purchase such fraction for an amount in
cash equal to the current value of such fraction, computed on the basis of the
last reported close price of the Common Stock on the New York Stock Exchange
("NYSE") on the last business day prior to the date of exercise upon which such
a sale shall have been effected, or, if the Common Stock is not so listed on
the NYSE, as the Board of Directors of the Issuer may in good faith determine.
2.6 EFFECT OF ALTERNATE SECURITIES. If at any time, as a
result of an adjustment made pursuant to this Section 2, the holder of the
Warrants shall thereafter become entitled to receive any securities of the
Company other than shares of Common Stock, then the number of such other
securities receivable upon exercise of an Warrant shall be subject to
adjustment from time to time on terms as nearly equivalent as practicable to
the provisions with respect to shares of Common Stock contained in this Section
2.
2.7 SUCCESSIVE APPLICATION. The provisions of this
Section 2 shall similarly apply to successive events covered by this Section.
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3. EXERCISE.
3.1 EXERCISE OF WARRANT. (a) The Holder may exercise
this Warrant by (i) surrendering this Warrant, with the form of exercise notice
attached hereto as Exhibit "A" duly executed by Holder, and (ii) making payment
to the Company of the aggregate Exercise Price for the applicable Warrant
Shares in cash, by certified check or bank check or by wire transfer to an
account designated by the Company. Upon any partial exercise of this Warrant,
the Company, at its expense, shall forthwith issue to the Holder for its
surrendered warrant a replacement Warrant identical in all respects to this
Warrant, except that the number of Warrant Shares shall be reduced accordingly.
(b) Record Date for ownership of Warrant Shares. Each
person in whose name any Warrant Share certificate is issued upon exercise of
the Warrants shall for all purposes been deemed to have become the holder of
record of the Warrant Shares for which such Warrants were exercised on, and
such Warrant Share certificate shall be dated the date upon which the Warrant
exercise notice was duly surrendered and payment of the Exercise Price was
tendered to the Company.
3.2 ISSUANCE OF WARRANT SHARES. The Warrant Shares
purchased shall be issued to the Holder exercising this Warrant as of the close
of business on the date on which all actions and payments required to be taken
or made by Holder, pursuant to Section 3.1, shall have been so taken or made.
Certificates for the Warrant Shares so purchased shall be delivered to the
Holder within a reasonable time, not exceeding ten (10) days after this Warrant
is surrendered.
4. RIGHTS OF HOLDER. Holder shall not, solely by virtue
of this Warrant and prior to the issuance of the Warrant Shares upon due
exercise thereof, be entitled to any rights of a shareholder in the Company.
5. TRANSFERABILITY. Holder hereby represents and
warrants that it is acquiring this Warrant and, upon the exercise thereof, the
Warrant Shares, for investment and not with a view to resale or distribution
thereof. Holder may not sell, assign, transfer or otherwise dispose of this
Warrant or any Warrant Shares, except in accordance with federal and state
securities laws. Subject to compliance with federal and state securities laws
and with the Reorganization Agreement, if applicable, the Holder may sell,
assign, transfer or otherwise dispose of any Warrant Shares acquired upon any
exercise hereof at any time and from time to time.
6. LEGEND ON WARRANT SHARES. Certificates evidencing
the Warrant Shares shall bear the legend set forth on the first page of this
Warrant.
7. REGISTRATION RIGHTS. The Warrant Shares will be
subject to the following registration rights to successors and assigns of Buyer
(other than any successor and assign which is a member of the WMX Group (as
defined in the Standstill Agreement)) as hereinafter set forth. For purposes
of this Article VII, the term "Registrable Securities" means any of the Warrant
Shares and any other shares of Common Stock or other securities
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issued in respect of the Warrant Shares by way of stock dividend or stock split
or in connection with any recapitalization, merger, consolidation or
reorganization; provided that, as to any particular securities, such securities
will cease to be Registrable Securities when they have been sold pursuant to
Rule 144 promulgated by the Securities and Exchange Commission or any similar
rule then in force ("Rule 144").
7.1 TRANSFER OF REGISTRATION RIGHTS. Buyer may assign
the registration rights with respect to the Warrant Shares to any party or
parties to which it may from time to time transfer the Warrants or Warrant
Shares, other than any member of the WMX Group. Upon assignment of any
registration rights pursuant to this Section 7.1, Buyer shall deliver to
Company a notice of such assignment which includes the identity and address of
any assignee (each such subsequent holder is referred to as a "Holder").
7.2 PIGGYBACK REGISTRATION.
(a) If at any time, and from time to time, the Company
proposes to effect a registration for its account or for the account of a
security holder or holders (other than a registration on Form S-8, or any
similar or successor form thereto, relating to an employee or director stock
option, stock purchase or other benefit plan, or a registration relating to
shares issuable in a merger, consolidation, exchange offer, purchase of assets
or any similar transaction) ("Piggyback Registration"), the Company shall:
(i) promptly give to each Holder of Registrable
Securities written notice thereof (which written notice shall
include a list of the jurisdictions in which the Company
intends to attempt to qualify such securities under or
otherwise comply with the applicable blue sky or other state
securities laws); and
(ii) include in such registration (and any related
qualification under or other compliance with blue sky or other
state securities laws), and in any underwriting involved
therein on the same terms and conditions as the securities
being issued thereunder, all the Registrable Securities
specified in a written request, made within 15 days after
receipt of such written notice from the Company, by any holder
of Registrable Securities; provided that if such registration
is a registration in which the managing underwriter advises
the Company that marketing factors require a limitation of the
number of shares of Common Stock to be underwritten in such
registration (a "Cutback Registration"), then (i) if such
registration is a primary registration, whether or not it
includes a secondary registration, on behalf of the Company,
the Company shall register in such registration (A) first, the
shares of Common Stock the Company proposes to sell in such
registration, and (B) second, shares of Common Stock held by
each holder of Registrable Securities and any holder of Common
Stock, other than the holders of Registrable Securities (in
their respective capacities as such) who has the right to
request inclusion of Common Stock held by such holder in such
registration (the "Electing Holders") on a pro rata basis,
based upon the number of shares of Common
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Stock the holders of Registrable Securities and any Electing Holders
originally sought to include in such registration; and (ii) if such
registration is a Piggyback Registration which is solely a secondary
registration on behalf of holders of Common Stock, the Company shall
register in such registration shares of Common Stock held by each
holder of Registrable Securities and the Electing Holders on a pro
rata basis, based upon the number of shares of Common Stock the
holders of Registrable Securities and any Electing Holders originally
sought to include in such registration andprovided, further, that if
such registration is a Cutback Registration, the Company shall use its
best efforts to include all shares of Registrable Securities specified
in the Holder's written request, but such best efforts shall not
include an obligation on the part of the Company to reduce the number
of shares of the Company or the other Electing Holders included in
such Cutback Registration beyond that expressly provided for in this
Section.
(b) If the registration of which the Company gives notice
is pursuant to an effective registration statement under the Securities Act
involving an underwriting, the Company shall so advise each Holder as part of
the written notice given pursuant to subclause (i) above. In such event, the
right of each such Holder to registration pursuant to this Section shall be
conditioned upon such Holder's participation in such underwriting, the
inclusion of the Registrable Securities in the underwriting and such Holder
entering into an underwriting agreement, containing customary terms and
conditions in a form reasonably acceptable to the Holder and the Company, with
the underwriter or underwriters selected for such underwriting by the Company;
provided that if such underwriting agreement shall not be acceptable to Holder
and after reasonable efforts by Company cannot be made acceptable to Holder,
the Company may proceed with such registration without registering the stock of
Holder in such registration.
7.3 REGISTRATION PROCEDURES. (a) In case of each
registration, qualification or compliance effected by the Company subject to
this Article VII, the Company shall keep Holder advised in writing as to the
initiation of each such registration, qualification and compliance and as to
the completion thereof. In addition, at its expense, the Company shall:
(i) before filing a registration
statement or prospectus or any amendment or supplements
thereto subject to this Article VII, the Company shall furnish
to counsel selected by Holder copies of all such documents
proposed to be filed and the portions of such documents
provided in writing by Holder for use therein and for which
Holder shall indemnify the Company shall be subject to such
Holders approval;
(ii) update, correct, amend and
supplement such registration, qualification or compliance
as necessary;
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(iii) furnish such number of prospectuses,
including preliminary prospectuses, and other documents
incident thereto as Holder may reasonably request from time to
time, which shall be a Selling Expense;
(iv) register or qualify such Registrable
Securities under such other securities or blue sky laws of
such jurisdictions of the United States (up to five of which
shall be at the expense of the Company, and any additional of
which shall be at the expense of Holder) as Holder may deem
reasonable to enable it to consummate the disposition in such
jurisdiction of the Registrable Securities (provided that
Company will not be required to (i) qualify generally to do
business in any jurisdiction where it would not otherwise be
required to qualify but for this section, or (ii) consent to
general service of process in any such jurisdiction);
(v) notify Holder at any time when a
prospectus relating to the Registrable Securities is required
to be delivered under the Securities Act, of the happening of
any event as a result of which the prospectus included in such
registration statement contains an untrue statement of a
material fact or omits any fact necessary to make the
statement therein not misleading, and at the request of
Holder, Company will prepare a supplement or amendment to such
prospectus so that, as thereafter delivered to the purchasers
of such shares, such prospectus will not contain any untrue
statements of a material fact or omit to state any fact
necessary to make the statements therein not misleading;
(vi) cause all such Registrable
Securities to be listed on each securities exchange on which
similar securities issued by Company are then listed;
(vii) provide a transfer agent and
registrar for all such Registrable Securities not later than
the effective date of such registration statement;
(viii) upon the sale of any Registrable
Securities pursuant to such registration statement, remove all
restrictive legends from all certificates or other instruments
evidencing the Registrable Securities;
(ix) furnish, at the request of Holder,
on the date that such Registrable Securities are delivered to
the underwriter for sale in connection with a registration
pursuant to this section, if such Registrable Securities are
being sold through an underwriter, or if such Registrable
Securities are not being sold through an underwriter, on the
date that the registration statement with respect to such
Registrable Securities becomes effective, (i) an opinion dated
such date of the counsel representing Company for purpose of
such registration, in form and substance as is customarily
given to underwriters in an underwritten public offering,
addressed to such underwriter, if any, and to
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Holder; and (ii) a letter dated as of such date from the
independent certified public accountant of Company, in form
and substance as is customarily given by independent certified
public accountants to underwriters in connection with a public
offering, addressed to the underwriter, if any, and to Holder;
and
(x) make available for inspection by
Holder, any underwriter participating in any disposition
pursuant to such registration statement, and any attorney,
accountant or any other agent retained by Holder or such
underwriter, all financial and other records, pertinent
corporate documents and properties of Company, and cause
Company's officers, directors and employees to supply all
information reasonably requested by any such Holder,
underwriter, attorney, accountant or agent in connection with
such registration statement.
(b) Except as required by law, all expenses incurred by
the Company in complying with this Section 7, including but not limited to, all
registration, qualification and filing fees, printing expenses, fees and
disbursements of counsel for the Company, blue sky fees and expenses in
accordance with Section 7.3(a)(iv) hereof, including fees and disbursements of
counsel related to all blue sky matters, but excluding the compensation of
regular employees of the Company which shall be paid in any event by the
Company ("Registration Expenses") incurred in connection with any registration,
qualification or compliance pursuant to such Sections shall be borne by the
Company. All underwriting discounts and selling commissions applicable to a
sale ("Selling Expenses") incurred in connection with any registration of
Registrable Securities and the legal fees of Holder shall be born by Holder.
7.4 FURTHER INFORMATION. If Registrable Securities owned
by a Holder are included in any registration, such Holder shall furnish the
Company such information regarding itself and the distribution proposed by such
Holder as the Company may reasonably request and as shall be required in
connection with any registration, qualification or compliance referred to in
this Agreement.
8. MISCELLANEOUS.
8.1 AMENDMENTS. The parties may, from time to time,
enter into written amendments, supplements or modifications hereto for the
purpose of adding any provisions to this Warrant or changing in any manner the
rights of either of the parties hereunder. No amendment, supplement or
modification shall be binding on either party unless made in writing and signed
by a duly authorized representative of each party.
8.2 NOTICES. All notices, requests, demands, claims, and
other communications hereunder shall be in writing and shall be delivered by
certified or registered mail (first class postage pre-paid), guaranteed
overnight delivery, or facsimile transmission, which transmission is confirmed
by delivery by certified or registered mail (first class postage pre-paid) or
guaranteed overnight delivery:
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(a) if to the Company to:
OHM Corporation
16406 U.S. Route 224 East
Findlay, Ohio 45840
Attention: General Counsel
Telecopy: (419) 424-4985
with a copy to:
Jones, Day, Reavis & Pogue
41 South High Street
1900 Huntington Center
Columbus, OH 43215
Attention: Robert J. Gilker, Esq.
Telecopy: (614) 469-4198
(b) if to Buyer to:
WMX Technologies, Inc.
3003 Butterfield Road
Oak Brook, Illinois 60521
Attention: General Counsel
Telecopy: (708) 218-1553
(c) or, in each case, at such other address or to such
other person as may be specified in writing to the other party.
8.3 WAIVER BY CONSENT. The Holder may execute and
deliver to the Company a written instrument waiving, on such terms and
conditions as the Holder may specify in such instrument, any of the
requirements of this Warrant.
8.4 NO IMPLIED WAIVER; RIGHTS ARE CUMULATIVE. The
failure to exercise or the delay in exercising by either party of any right,
remedy, power or privilege under this Warrant, shall not operate as a waiver
thereof. The single or partial exercise of any right, remedy, power or
privilege under this Warrant shall not preclude any other or further exercise
thereof or the exercise of any other right, remedy, power or privilege. The
rights, remedies, powers and privileges herein provided are cumulative and not
exclusive of any rights, remedies, powers and privileges provided by law.
8.5 GOVERNING LAW. This Warrant and rights and
obligations of the parties hereunder shall be governed by, construed and
interpreted in accordance with the
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laws of the State of Ohio applicable to agreements executed by residents of
that state, and fully to be performed, in that state.
8.6 SEVERABILITY. If any provision of this Warrant is
found to be unenforceable for any reason whatsoever, such provision shall be
deemed null and void to the extent of such unenforceability but shall be deemed
separable from and shall not invalidate any other provision of this Warrant.
8.7 CAPTIONS. Captions to the various paragraphs of this
Agreement are provided for convenience only and shall not be used to construe
the provisions of this Warrant.
8.8 ENTIRE AGREEMENT. This Warrant, the Guarantee
Agreement and the Standstill Agreement constitute the entire understanding of
the parties with respect to the subject matter of the Warrant and supersedes
all prior discussions, agreements and representations, whether oral or written,
concerning the subject matter hereof and whether or not executed by Buyer and
the Company.
IN WITNESS WHEREOF, the parties hereto have caused this
Warrant to be duly executed and delivered by the proper and duly authorized
officers as of the day and year first above written.
OHM CORPORATION
By: /s/ Randall M. Walters
------------------------------
Name: Randall M. Walters
Title: Vice President
WMX TECHNOLOGIES, INC.
By: /s/ Linda R. Witte
-----------------------------
Name: Linda R. Witte
Title: Vice President
11
14
EXHIBIT "A"
-----------
[To be signed only upon exercise of Warrant]
To OHM Corporation:
The undersigned, the Holder of the within Warrant, hereby
irrevocably elects to exercise the purchase right represented by such Warrant
for, and to purchase thereunder, _____________ shares of the common stock, par
value $.10 per share, of OHM Corporation and herewith makes payment of
$___________ thereof or, and requests that the certificates for such shares be
issued in the name of, and be delivered to, ______________ whose address is
___________________________.
Dated:
_________________________
_______________________________________________
(Signature must conform in all respects to name
of Holder as specified on the face of the Warrant)
_______________________________________________
Address