Registration No. 33-_______
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
_______________
FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
________________
BROWNING-FERRIS INDUSTRIES, INC.
(Exact name of issuer as specified in its charter)
DELAWARE 74-1673682
(State or other jurisdiction of (I.R.S.Employer
incorporation or organization) Identification No.)
757 N. Eldridge 77079
Houston, Texas (Zip Code)
(Address of principal executive offices)
1993 Stock Incentive Plan and
1993 Non-Employee Director Stock Plan
of
BROWNING-FERRIS INDUSTRIES, INC.
(Full title of the plans)
GERALD K. BURGER
Browning-Ferris Industries, Inc.
757 N. Eldridge
Houston, Texas 77079
(Name and address of agent for service)
Telephone number, including area code, of agent for service:
(713) 870-7820
________________
Cover continued on next page.
CALCULATION OF REGISTRATION FEE
Proposed Proposed
Maximum Maximum
Title of Amount Offering Aggregate Amount of
Securities to Being Price Offering Registration
be Registered Registered Per Share Price Fee
___________________________________________________________________
Common Stock, 7,250,000 $28.9375(3) $209,796,870(3) $72,344(3)
$.16-2/3 Par (1)(2)
Value
___________________________________________________________________
(1) The 7,250,000 shares of Common Stock being originally
registered hereby are reserved for issuance upon exercise of options
granted or to be granted under the Registrant's 1993 Stock Incentive
Plan and 1993 Non-Employee Director Stock Plan. The registration fees
have been paid previously respecting the securities registered by
Registration Statement Nos. 2-91197, 33-21577 and 33-41281 pursuant
to which the Company originally registered 10,000,000 shares of Common
Stock, $.16-2/3 par value, reserved for issuance upon exercise under
the Registrant's stock option plans. The Registrant declared two-for-one
splits of its Common Stock, $.16-2/3 par value, to stockholders of record
at the close of business on December 13, 1985 and March 31, 1987. The
distribution of the shares resulting from these stock splits was effected
December 26, 1985 and April 24, 1987. Pursuant to the anti-dilution
provisions of each of the Company's stock option plans, each holder of
options to purchase Common Stock which were granted on or before these
two stock split record dates are entitled to the exercise of an option,
adjusted on a per share basis, at the same aggregate purchase price. The
restated number of shares originally registered is 13,000,000 shares. Of
such shares registered, 3,356,115 shares have been issued as of March 31,
1994. The shares registered hereby pursuant to Registration Statement
Nos. 2-91197, 33-21577 and 33-41281 are as follows:
Number of Shares
Name of Plan Registered
1983 Stock Option Plan 1,332,330
1987 Stock Option Plan 4,473,500
1990 Stock Option Plan 3,838,055
Total 9,643,885
The maximum number of shares of Common Stock which may be issuable
upon exercise of all such options is, as more fully set forth herein,
subject to adjustment to prevent dilution.
(2) There are also registered hereby such indeterminate number of
shares of Common Stock as may become issuable by reason of the operation
of the anti- dilution provisions of the plans.
(3) Calculated in accordance with Rule 457(h)(1).
________________
The Prospectus used in connection with this Registration Statement
also relates to Registration Statement Nos. 2-91197, 33-21577 and 33-41281
and is intended to be the common prospectus referred to in Rule 429 under
the Securities Act of 1933, as amended. Such Registration Statements are
accordingly amended to reflect the information contained herein.
PART II.
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents filed with the Securities and Exchange Commission
(the "Commission") are incorporated herein by reference and made a part
hereof:
(a) The Company's annual report for the fiscal year ended September
30, 1993, on Form 10-K; and
(b) The Company's quarterly report on Form 10-Q for the quarter ended
December 31, 1993.
All reports and other documents subsequently filed by the Company pursuant
to Sections 13, 14 and 15(d) of the Securities Exchange Act of 1934, as
amended, prior to the filing of a post-effective amendment which indicates
that all securities offered hereby have been sold or which deregisters all
securities remaining unsold, shall be deemed to be incorporated by reference
herein and to be a part hereof from the date of the filing of such reports
and documents.
Item 6. Indemnification of Directors and Officers
Section 145 of the General Corporation Law of the State of Delaware
empowers the Company to, and the By-laws of the Company provide that it
shall, indemnify any person who was or is a party or is threatened to be
made a party to, or otherwise becomes involved in, any threatened, pending
or completed action, suit or proceeding, whether civil, criminal,
administrative, investigative (formal or informal) other than an action by
or in the right of the Company, by reason of the fact that he is or was a
director, officer, employee or agent of the Company, or is or was serving
at the request of the Company as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other enterprise,
against expenses (including attorneys' fees), judgments, fines and amounts
paid in settlement actually and reasonably incurred by him in connection
with such action, suit or proceeding if he acted in good faith and in a
manner he reasonably believed to be in or not opposed to the best
interests of the Company, and, with respect to any criminal action or
proceeding, had no reasonable cause to believe his conduct was unlawful;
except that, in the case of an action or suit by or in the right of the
Company, no indemnification may be made in respect of any claim, issue or
matter as to which such person shall have been adjudged to be liable to
the Company, unless and only to the extent that the Delaware Court of
Chancery or the court in which such action or suit was brought shall
determine that such person is fairly and reasonably entitled to indemnity
for proper expenses.
The Company's By-laws provide, pursuant to Section 145 of the General
Corporation Law of the State of Delaware, for indemnification of officers,
directors, employees and agents of the Company and persons serving at the
request of the Company in such capacities for other business organizations
against certain losses, costs, liabilities and expenses incurred by reason
of their positions with the Company or such other business organizations.
The Company's Restated Certificate of Incorporation contains a provision
which eliminates, to the fullest extent permitted by law, director
liability for monetary damages for breaches of fiduciary duty of care.
At the annual meeting of stockholders held on March 4, 1987, the Company's
shareholders adopted a resolution authorizing the Company to enter into an
Indemnity Agreement with each of the Company's directors and with certain
officers of the Company designated by the Board of Directors or its
Executive Committee. The Indemnity Agreement requires that the Company
indemnify directors and designated officers who are parties thereto in all
cases to the fullest extent permitted by applicable law.
Pursuant to a policy of directors' and officers' liability and corporation
reimbursement insurance, the Company's officers and directors are insured,
subject to the limits, retention, exceptions and other terms and conditions
of such policy, against liability for any actual or alleged breach of duty,
neglect, error, misstatement, misleading statement, omission or other act
done or wrongfully attempted while acting in their capacities as directors
or officers of the Company. Pursuant to a number of agreements by which
the Company acquired ownership of businesses, the former owners of those
businesses individually agreed to indemnify each officer of the Company,
each person who may be liable as a director of the Company or as a person
who controls or shall have controlled the Company within the meaning of the
Securities Act of 1933 (the "Act") against certain liabilities that such
officers, directors or controlling persons might incur. Generally, such
former owners have agreed to indemnify such officers, directors or
controlling persons against any and all damages or liabilities to which
such officers, directors or controlling persons may become subject under
the Act, the Securities Exchange Act of 1934, state securities laws, the
common law or otherwise, including legal and other expenses incurred in
connection therewith, but only insofar as such liabilities arise out of
or are based upon any untrue statement or omission or alleged omission
based upon information furnished to the Company by or on behalf of such
former owner for use in certain registration statements filed by the
Company under the Act or upon failure of such former owner to provide
such information.
Item 8. Exhibits
*3 - Restated Certificate of Incorporation of
Browning-Ferris Industries, Inc. dated October
7, 1991. (Exhibit No. 3(a) of Form 10-K for the
fiscal year ended September 30, 1993 is incorporated
by reference.)
*4(a) - Browning-Ferris Industries, Inc. 1983 Stock Option
Plan, as amended on December 2, 1986. (Exhibit 10.7
of Form 10-K for the fiscal year ended September 30,
1986 is incorporated by reference.)
*4(b) - Browning-Ferris Industries, Inc. 1987 Stock Option
Plan. (Exhibit 10.11 of Form 10-K for the fiscal
year ended September 30, 1988, is incorporated by
reference.)
*4(c) - Browning-Ferris Industries, Inc. 1990 Stock Option
Plan. (Exhibit 4.5 of Registration Statement No.
33-41281 is incorporated by reference.)
4(d) - Browning-Ferris Industries, Inc. 1993 Stock Incentive
Plan.
4(e) - Browning-Ferris Industries, Inc. 1993 Non-Employee
Director Stock Plan.
*4(f) - Browning-Ferris Industries, Inc. 1983 Stock Option
Plan Agreement for Incentive Stock Options for
Employees. (Exhibit 4.15 of Registration Statement
No. 2-91197 is incorporated by reference.)
*4(g) - Browning-Ferris Industries, Inc. 1983 Stock Option
Plan Agreement for Incentive Stock Options for Officers
and Directors. (Exhibit 4.16 of Registration Statement
No. 2- 91197 is incorporated by reference.)
*4(h) - Browning-Ferris Industries, Inc. 1983 Stock Option Plan
Agreement for Non-qualified Stock Options for Employees.
(Exhibit 4.17 of Registration Statement No. 2-91197 is
incorporated by reference.)
*4(i) - Browning-Ferris Industries, Inc. 1983 Stock Option Plan
Agreement for Non-qualified Stock Options for Officers
and Directors. (Exhibit 4.18 of Registration No.
2-91197 is incorporated by reference.)
*4(j) - Browning-Ferris Industries, Inc. 1987 Stock Option Plan
Agreement for Non-qualified Stock Options for Employees.
(Exhibit 4.18 of Registration Statement No. 33-21577 is
incorporated by reference.)
*4(k) - Browning-Ferris Industries, Inc. 1987 Stock Option Plan
Agreement for Non-qualified Stock Options for Officers
and Directors. (Exhibit 4.19 of Registration Statement
No. 33- 21577 is incorporated by reference.)
*4(l) - Browning-Ferris Industries, Inc. 1990 Stock Option Plan
Agreement for Non-qualified Stock Options for Employees.
(Exhibit 4.16 of Registration Statement No. 33-41281 is
incorporated by reference.)
*4(m) - Browning-Ferris Industries, Inc. 1990 Stock Option Plan
Agreement for Non-qualified Stock Options for Officers
and Directors. (Exhibit 4.17 of Registration Statement
No. 33- 41281 is incorporated by reference.)
4(n) - Browning-Ferris Industries, Inc. 1993 Stock Incentive
Plan Agreement.
4(o) - Browning-Ferris Industries, Inc. 1993 Non-Employee
Director Stock Plan Agreement.
5 - Legal Opinion of Fulbright & Jaworski.
23(a) - Consent of Arthur Andersen & Co.
23(b) - Consent of Messrs. Fulbright & Jaworski (included in
their opinion filed as Exhibit 5).
24 - Powers of Attorney (included under the caption "Powers
of Attorney and Signatures").
_________________
*Incorporated by reference.
Item 9. Undertakings.
A. The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section
10(a)(3) of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the Registration Statement (or the
most recent post-effective amendment thereof) which, individually or in
the aggregate, represent a fundamental change in the information set forth
in the Registration Statement;
(iii) To include any material information with respect
to the plan of distribution not previously disclosed in the Registration
Statement or any material change to such information in the Registration
Statement;
Provided, however, that paragraphs (i) and (ii) above do
not apply if the information required to be included in a post-effective
amendment by those paragraphs is contained in periodic reports filed by
the registrant pursuant to Section 13 or 15(d) of the Securities Exchange
Act of 1934 that are incorporated by reference in the Registration
Statement;
(2) That, for the purpose of determining any liability under
the Securities Act of 1933, each such post-effective amendment shall be
deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall
be deemed to be the initial bona fide offering thereof; and
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at
the termination of the offering.
B. The undersigned registrant hereby undertakes that, for purposes
of determining any liability under the Securities Act of 1933, each filing
of the registrant's annual report pursuant to Section 13(a) or 15(d) of the
Securities Exchange Act of 1934 that is incorporated by reference in this
Registration Statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide
offering thereof.
C. Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and
controlling persons of the registrant pursuant to the foregoing provisions,
or otherwise, the registrant has been advised that in the opinion of the
Securities and Exchange Commission such indemnification is against public
policy as expressed in the Act and is, therefore, unenforceable. In the
event that a claim for indemnification against such liabilities (other
than the payment by the registrant of expenses incurred or paid by a
director, officer or controlling person of the registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities
being registered, the registrant will, unless in the opinion of its counsel
the matter has been settled by a controlling precedent, submit to a court
of appropriate jurisdiction the question whether such indemnification by
it is against public policy as expressed in the Act and will be governed
by the final adjudication of such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended,
the Registrant certifies that it has reasonable grounds to believe that
it meets all of the requirements for filing on Form S-8 and has duly
caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized in the City of Houston, State of
Texas, on this 29th day of April, 1994.
BROWNING-FERRIS INDUSTRIES, INC.
(Registrant)
By: /s/ William D. Ruckelshaus
William D. Ruckelshaus,
Chairman of the Board,
Chief Executive Officer
and Director
POWERS OF ATTORNEY AND SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed below by the following
persons in the capacities and on the date indicated. Each of the
undersigned officers and directors of Browning-Ferris Industries,
Inc. hereby constitutes and appoints WILLIAM D. RUCKELSHAUS, JEFFREY
E. CURTISS and RUFUS WALLINGFORD, and each of them singly, acting
without the others, as true and lawful attorney-in-fact and agent,
with full power of substitution and resubstitution, for him in his
name, place and stead, in any and all capacities, to sign any and
all amendments (including post- effective amendments) to this
Registration Statement and to file the same, with all exhibits thereto,
and other documents in connection therewith, with the Securities and
Exchange Commission and to make any and all state securities law or blue
sky filings, granting unto said attorney-in-fact and agent, full power
and authority to do and perform each and every act and thing requisite
or necessary to be done in and about the premises, as fully to all
intents and purposes as he might or could do in person, thereby
ratifying and confirming all that said attorney-in-fact and agent,
or his substitute or substitutes, may lawfully do or cause to be done
by virtue hereof.
/s/ William D. Ruckelshaus
William D. Ruckelshaus,
Chairman of the Board,
Chief Executive Officer
and Director
/s/ Bruce E. Ranck
Bruce E. Ranck,
President, Chief Operating
Officer and Director
/s/ Norman A. Myers
Norman A. Myers, Vice
Chairman, Chief Marketing
Officer and Director
/s/ Jeffrey E. Curtiss
Jeffrey E. Curtiss,
Senior Vice President and
Chief Financial Officer
/s/ David R. Hopkins
David R. Hopkins,
Vice President, Controller and
Chief Accounting Officer
/s/ William T. Butler
William T. Butler,
Director
/s/ C. Jackson Grayson, Jr.
C. Jackson Grayson, Jr.,
Director
/s/ Gerald Grinstein
Gerald Grinstein, Director
/s/ Ulrich Otto
Ulrich Otto, Director
/s/ Harry J. Phillips, Sr.
Harry J. Phillips, Sr.,
Director
/s/ Joseph L. Robers, Jr.
Joseph L. Roberts, Jr.,
Director
/s/ Marc J. Shapiro
Marc J. Shapiro, Director
/s/ Robert M. Teeter
Robert M. Teeter, Director
/s/ Louis A. Waters
Louis A. Waters, Director
/s/ Marina v.N. Whitman
Marina v.N. Whitman, Director
April 29, 1994. /s/ Peter S. Willmott
Peter S. Willmott, Director
Registration No. 33-_______
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
_______________
EXHIBITS
TO
FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
________________
BROWNING-FERRIS INDUSTRIES, INC.
(Exact name of issuer as specified in its charter)
DELAWARE 74-1673682
(State or other jurisdiction of (I.R.S.Employer
incorporation or organization) Identification No.)
757 N. Eldridge 77079
Houston, Texas (Zip Code)
(Address of principal executive offices)
1993 Stock Incentive Plan and
1993 Non-Employee Director Stock Plan
of
BROWNING-FERRIS INDUSTRIES, INC.
(Full title of the plans)
________________
EXHIBIT 4(d)
BROWNING-FERRIS INDUSTRIES, INC.
1993 Stock Incentive Plan
1. Purpose. The 1993 Stock Incentive Plan (the "Plan")
is to benefit Browning-Ferris Industries, Inc. (the "Company") and
its subsidiary corporations through the maintenance and development
of its management by offering certain executives, key employees
(including employee-directors) and consultants of the Company and
its subsidiaries (the "Participants") an opportunity to become owners
of the Common Stock, $.16-2/3 par value, of the Company and is intended
to advance the best interests of the Company by providing such persons
with additional incentive by increasing their proprietary interest in
the success of the Company and its subsidiary corporations.
2. Administration. The Plan shall be administered by the
Compensation Committee of the Board of Directors of the Company or
by another committee designated to act by the Board of Directors
(the "Committee"), which Committee shall consist of not less than
two members who are outside directors as described in Section
162(m) of the Internal Revenue Code of 1986, as amended, and rules
and regulations issued thereunder. Meetings shall be held at such
times and places as shall be determined by the Committee. Except
to the extent permitted under Rule 16b-3 or any successor rule
under the Securities Exchange Act of 1934 ("Rule 16b-3"), no
director serving on the Committee shall be granted or awarded
equity securities or options of the Company pursuant to this Plan
or any other plan of the Company or any of its affiliates during
service as an administrator of a compensation or benefit plan of
the Company or any of its affiliates or during the one year prior
to such service. A majority of the members of the Committee shall
constitute a quorum for the transaction of business, and the vote
of a majority of those members present at any meeting shall decide
any question brought before that meeting. In addition, the
Committee may take any action otherwise proper under the Plan by
the unanimous written consent of its members. No member of the
Committee shall be liable for any act or omission of any other
member of the Committee or for any act or omission on his own part,
including but not limited to the exercise of any power or
discretion given to him under the Plan, except those resulting from
his own gross negligence or willful misconduct. All questions of
interpretation and application of the Plan, or of options granted
hereunder (the "Options") and of stock awards and restricted stock
(which are defined in Paragraph 17 hereof) granted hereunder, shall
be subject to the determination, which shall be final and binding,
of a majority of the whole Committee.
3. Options, Stock Awards and Restricted Stock Grants. The
stock subject to the Options and other provisions of the Plan shall
be shares of the Company's Common Stock, $.16-2/3 par value (the
"Stock"). The total amount of the Stock with respect to which
Options, stock awards and restricted stock may be granted under
this Plan shall not exceed in the aggregate 7,000,000 shares, but
no more than 500,000 shares of Stock in the aggregate may be
awarded as stock awards and restricted stock grants; provided, that
the class and aggregate number of shares of Stock which may be
subject to Options, stock awards and restricted stock granted
hereunder shall be subject to adjustment in accordance with the
provisions of Paragraph 16 hereof. Such shares of Stock may be
treasury shares or authorized but unissued shares of Stock. In the
event that any outstanding Option for any reason shall expire or is
terminated or cancelled, the shares of Stock allocable to the
unexercised portion of such Option may again be subject to an
Option, stock award or restricted stock under the Plan.
4. Authority to Grant Options. The Committee may grant from
time to time to such eligible individuals (the "Optionees") as set
forth in Paragraph 5 an Option or Options to buy a stated number of
shares of Stock under the terms and conditions of the Plan and the
stock option agreement. Options granted under the Plan may, in the
discretion of the Committee, be either incentive stock options as
defined in Section 422 of the Internal Revenue Code of 1986, as
amended (the "Code"), or non-qualified stock options. Each stock
option agreement shall specifically state, for each Option granted
thereunder, whether the Option is an incentive stock option or a
non-qualified option, but any Option not designated by the
Committee as an incentive stock option shall be a non-qualified
stock option. In no event, however, shall both an incentive stock
option and a non-qualified stock option be granted together under
the Plan in such a manner that the exercise of one Option affects
the rights to exercise the other. No Options shall be granted
under the Plan subsequent to December 6, 2003. Except as provided
in Paragraph 6, all provisions of this Plan relating to options
apply to both incentive and non-qualified options. The total
amount of Stock with respect to which Options may be granted under
the Plan to employee-directors of the Company as a group shall not
exceed in the aggregate thirty (30) percent of the total number of
shares with respect to which Options may be granted pursuant to
Paragraph 3 of the Plan; provided, that the class and the aforesaid
maximum number of shares shall be subject to adjustments in
accordance with the provisions of Paragraph 16 hereof. The only
Options under the Plan which may be granted are those which either
(i) are granted after adoption of the Plan and are conditioned upon
approval of the Plan by the stockholders of the Company within
twelve months of such adoption or (ii) are granted after both
adoption of the Plan and approval thereof by the stockholders of
the Company within twelve months after the date of such adoption,
all as provided in Paragraph 21 hereof. The maximum number of
Options which may be granted to any one Participant from this Plan
is 300,000; provided, that the class and the aforesiad maximum
number of shares shall be subject to adjustments in accordance with
the provisions of Paragraph 16 hereof.
5. Eligibility for Stock Options. Except as provided in
Paragraph 6(iv), the individuals who shall be eligible to receive
Options under the Plan shall be key employees (including employee-
directors) of the Company or of any subsidiary corporation and any
person who is a party to a written consulting agreement with the
Company or any of its subsidiary corporations, as determined by the
Committee. Non-employee directors are not eligible. For all
purposes of the Plan, the term "subsidiary corporation" shall mean
any corporation of which the Company is the "parent corporation" as
that term is defined in Section 424(e) of the Code.
6. Provisions Applicable to Incentive Stock Options. The
following provisions shall apply only to incentive stock options
granted under the Plan:
(i) No incentive stock option shall be granted to any
employee who, at the time such Option is granted, owns, within the
meaning of Section 422 of the Code, stock possessing more than 10
percent of the total combined voting power of all classes of Stock
of the Company or any of its subsidiaries, except that such an Option
may be granted to such an employee if at the time the Option is granted
the option price is at least 110 percent of the fair market value of
the Stock (determined in accordance with Paragraph 7) subject to the
Option, and the Option by its terms is not exercisable after the
expiration of five years from the date the Option is granted;
(ii) To the extent that the aggregate fair market value of
stock with respect to which incentive stock options (without regard
to this subparagraph) are exercisable for the first time by any
individual during any calendar year (under all plans of the Company
and its subsidiaries) exceeds $100,000, such Options shall be
treated as Options which are not incentive stock options. This
subparagraph shall be applied by taking Options into account in the
order in which they were granted. If some but not all Options granted
on any one day are subject to this subparagraph, then such Options shall
be apportioned between incentive stock option and non-qualified stock
option treatment in such manner as the Committee shall determine. For
purposes of this subparagraph, the fair market value of any stock shall
be determined, in accordance with Paragraph 7, as of the date the Option
with respect to such Stock is granted.
(iii) No incentive stock option granted under the Plan shall
be exercisable any sooner than one year from the date of grant.
(iv) Only employees (including employee-directors) of the
Company and its subsidiary corporations shall be eligible to receive
incentive stock options.
7. Option Price; Fair Market Value. The price at which
shares of Stock may be purchased pursuant to an Option shall be not
less than the fair market value of the shares of Stock on the date
the Option is granted, and the Committee in its discretion may
provide that the price at which shares may be so purchased shall be
more than such fair market value. For all purposes of this Plan,
the "fair market value" of the Stock shall be the mean of the
highest and lowest selling prices of the Stock as reported in The
Wall Street Journal for the last trading day before the date as of
which such fair market value is to be determined. No Option may be
repriced.
8. Duration of Options. Subject to Paragraph 6 (i), no
Option shall be exercisable after the expiration of ten years from
the date such Option is granted. An Option shall expire
immediately following the last day on which such Option is
exercisable pursuant to this Paragraph 8 or any decision of the
Committee made pursuant to Paragraph 9(b).
9. Amount Exercisable.
(a) Subject to Paragraph 6(iii), no Option shall be
exercisable earlier than six months from the date of grant.
(b) Subject to Paragraph 9(a), the Committee in its
discretion may provide that an Option shall be exercisable
throughout the term of the Option or during any lesser period of
time commencing on or after six months from the date of grant of
the Option and ending upon or before the expiration of the term.
Each Option may be exercised, so long as it is valid and
outstanding, from time to time in part or as a whole, subject to
any limitations with respect to the number of shares for which the
Option may be exercised at a particular time and to such other
conditions as the Committee in its discretion may specify upon
granting the Option.
10. Exercise of Options. Options shall be exercised by the
delivery of written notice to the Company setting forth the number
of shares of Stock with respect to which the Option is to be
exercised, together with cash, wire transfer, certified check, bank
draft or postal or express money order payable to the order of the
Company (the "Acceptable Funds") for an amount equal to the Option
price of such shares of Stock, or at the election of the Optionee,
by exchanging shares of Stock owned by the Optionee, so long as the
exchanged shares of Stock plus Acceptable Funds paid, if any, have
a total fair market value (determined in accordance with Paragraph
7, as of the date of exercise) equal to the purchase prices for
such shares to be acquired upon exercise of said Option, and
specifying the address to which the certificates for such shares
are to be mailed. Whenever an Option is exercised by exchanging
shares of Stock theretofore owned by the Optionee: (1) no shares of
Stock received upon exercise of that Option thereafter may be
exchanged to pay the Option price for additional shares of Stock
within the following six months; and (2) the Optionee shall deliver
to the Company certificates registered in the name of such Optionee
representing a number of shares of Stock legally and beneficially
owned by such Optionee, free of all liens, claims, and encumbrances
of every kind, accompanied by stock powers duly endorsed in blank
by the record holder of the shares represented by such
certificates, with signature guaranteed by a commercial bank or
trust company or by a brokerage firm having a membership on a
registered national stock exchange. Such notice may be delivered
in person to the Secretary of the Company, or may be sent by mail
to the Secretary of the Company, in which case delivery shall be
deemed made on the date such notice is received. As promptly as
practicable after receipt of such written notification and payment,
the Company shall deliver to the Optionee certificates for the
number of shares with respect to which such Option has been so
exercised, issued in the Optionee's name; provided, that such
delivery shall be deemed effected for all purposes when a stock
transfer agent of the Company shall have deposited such
certificates in the United States mail, addressed to the Optionee,
at the address specified pursuant to this Paragraph 10. The
delivery of certificates upon the exercise of Options may, in the
discretion of the Committee, be subject to any reasonable
conditions, including, but not limited to (a) payment to the
Company by the person exercising such Option of the amount,
determined by the Company, of any tax liability of the Company
(including but not limited to federal and state income and
employment taxes required to be withheld) resulting from such
exercise, or from a sale or other disposition of the stock issued
upon exercise of such Option (or a stock option granted under
another plan of the Company), if such sale or other disposition
might be a "disqualifying disposition" described in Section 422(a)
of the Code and (b) agreement by the person exercising such Option
to provide the Company with such information as the Company might
reasonably request pertaining to such exercise, sale or other
disposition. Except to the extent the election would impact
qualification under Rule 16b-3, the Optionee may elect to have the
Company accept or retain Stock as payment of an Optionee's tax
liability to the Company, as described in (a), above.
11. Transferability of Options. Options shall not be
transferable by the Optionee other than by will or under the laws
of descent and distribution, and shall be exercisable, during the
Optionee's lifetime, only by the Optionee or his legal guardian or
representative.
12. Termination of Employment of Optionee. Except as may be
otherwise expressly provided herein, Options shall terminate on
such date as shall be selected by the Committee in its discretion
and specified in the option agreement. If an Optionee is an
employee of the Company or of a subsidiary corporation at the time
an Option is granted, and, before the date of expiration of the
Option, an employment relationship with either the Company or a
subsidiary is severed, for any reason (except as otherwise provided
for herein), the Option shall terminate thirty days following
severance of the employment relationship. Whether authorized leave
of absence, or absence on military or government service, shall
constitute severance of an employment relationship with the Company
or a subsidiary corporation and the Optionee, shall be determined
by the Committee at the time thereof. If, before the date of
expiration of a non-qualified Option, the Optionee shall be retired
in good standing from the employ of the Company or a subsidiary for
reasons of age or disability under the then established rules of
the Company, the Option shall terminate on the earlier of such date
of expiration or one year after the date of such retirement. In
the event of such retirement, the Optionee shall have the right
prior to the termination of such Option to exercise the Option to
the extent to which he was entitled to exercise such Option
immediately prior to such retirement; however, in the event that
the Optionee has retired on or after attaining the age of sixty-two
(62) years, the Optionee shall be entitled to exercise all or any
part of such Option (without regard to any limitations imposed
pursuant to Paragraph 9(b) hereof, but subject to Paragraph 9(a)).
Upon the death of the Optionee, his executors, administrators, or
any person or persons to whom his Option may be transferred by will
or by the laws of descent and distribution, shall have the right,
at any time prior to the earlier of the date of expiration or one
year following the date of such death, to exercise the Option, in
whole or in part (without regard to any limitations imposed
pursuant to Paragraph 9(b) hereof, but subject to Paragraph 9(a)).
The Committee shall be permitted, in its discretion, to grant to
any employee an Option which is an incentive stock option or a
non-qualified stock option with a provision that the Option shall
continue in full force and effect as a non-qualified stock option
with no modification of the option price, if the person's status
with the Company or its subsidiary changes, but such person
continues as a director or consultant of the Company.
13. Requirements of Law. The Company shall not be required
to sell or issue any shares under any Option if the issuance of
such shares shall constitute a violation by the Optionee or the
Company of any provisions of any law or regulation of any
governmental authority.
14. No Rights as Stockholder. No Optionee shall have rights
as a Stockholder with respect to shares covered by any Option until
the date of issuance of a stock certificate for such shares; and,
except as otherwise provided in Paragraph 16 hereof, no adjustment
for dividends, or otherwise, shall be made if the record date
thereof is prior to the date of issuance of such certificate.
15. No Employment or Nomination Obligation. The granting of
any Option shall not impose upon the Company or any subsidiary any
obligation to continue to nominate an Optionee for election as a
director or to employ or continue to employ any Optionee; and the
right of the Company or any subsidiary to terminate the employment
of any employee shall not be diminished or affected by reason of
the fact that an Option has been granted to the employee.
16. Changes in the Company's Capital Structure. The
existence of outstanding Options shall not affect in any way the
right or power of the Company or its stockholders to make or
authorize any or all adjustments, recapitalizations,
reorganizations or other changes in the Company's capital structure
or its business, or any merger or consolidation of the Company, or
any issue of bonds, debentures, preferred or prior preference stock
ahead of or affecting the Stock or the rights thereof, or the
dissolution or liquidation of the Company, or any sale or transfer
of all or any part of its assets or business, or any other
corporate act or proceeding, whether of a similar character or
otherwise.
If the Company shall effect a subdivision or consolidation of
shares or other capital readjustment, the payment of a stock
dividend, or other increase or reduction of the number of shares of
the Stock outstanding, without receiving compensation therefor in
money, services or property, then (a) the number, class, and per
share price of shares of stock subject to outstanding Options
hereunder shall be appropriately adjusted in such a manner as to
entitle an Optionee to receive upon exercise of an Option, for the
same aggregate cash consideration, an equivalent total number and
class of shares as he would have received had he exercised his
Option in full immediately prior to the event requiring the
adjustment; and (b) the number and class of shares then reserved
for issuance under the Plan shall be adjusted by substituting for
the total number and class of shares of Stock then reserved that
number and class of shares of stock that would have been received
by the owner of an equal number of outstanding shares of each class
of Stock as the result of the event requiring the adjustment.
After a merger of one or more corporations into the Company,
or after a consolidation of the Company and one or more
corporations in which the Company shall be the surviving
corporation, each holder of an outstanding Option shall, at no
additional cost, be entitled upon exercise of such Option to
receive (subject to any required action by stockholders) in lieu of
the number and class of shares as to which such Option would have
been so exercisable in the absence of such event, the number and
class of shares of stock or other securities to which such holder
would have been entitled pursuant to the terms of the agreement of
merger or consolidation if, immediately prior to such merger or
consolidation, such holder had been the holder of record of the
number and class of shares of Stock equal to the number and class
of shares as to which such Option shall be so exercised.
If the Company is merged into or consolidated with another
corporation under circumstances where the Company is not the
surviving corporation, or if the Company sells or otherwise
disposes of substantially all its assets to another corporation and
is liquidated while unexercised Options remain outstanding under
the Plan, (i) subject to the provisions of clause (iii) below,
after the effective date of such merger, consolidation or sale and
liquidation, as the case may be, each holder of an outstanding
Option shall be entitled, upon exercise of such Option, to receive,
in lieu of shares of the Stock, shares of such stock or other
securities as the holders of shares of such class of Stock received
pursuant to the terms of the merger, consolidation or sale; (ii)
the Committee may waive any limitations imposed pursuant to
Paragraph 9(b) hereof so that all Options, from and after a date
prior to the effective date of such merger, consolidation, or sale
and liquidation, as the case may be, specified by the Committee,
shall be exercisable in full, subject to Paragraph 9(a) hereof; and
(iii) all outstanding Options may be canceled by the Committee as
of the effective date of any such merger, consolidation or sale and
liquidation provided that (x) notice of such cancellation shall be
given to each holder of an Option and (y) each holder of an Option
shall have the right to exercise such Option in full (without
regard to any limitations imposed pursuant to Paragraph 9(b)
hereof, but subject to Paragraph 9(a)) during a 30-day period
preceding the effective date of such merger, consolidation or sale
and liquidation.
Except as herein before expressly provided, the issue by the
Company of shares of stock of any class, or securities convertible
into shares of stock of any class, for cash or property, or for
labor or services either upon direct sale or upon the exercise of
rights or warrants to subscribe therefor, or upon conversion of
shares or obligations of the Company convertible into such shares
or other securities, shall not affect, and no adjustment by reason
thereof shall be made with respect to, the number, class or price
of shares of Stock then subject to outstanding Options.
17. Stock Awards and Restricted Stock Grants. A stock award
consists of the issuance by the Company to a Participant of shares
of Stock, without other payment therefor, in lieu of certain cash
compensation or as additional compensation for his services to the
Company. Restricted stock grants consist of shares of Stock which
are issued by the Company to a Participant at a price which may be
below their fair market value or for no payment, but subject to
restrictions on their sale or other transfer by the Participant.
The issuance of Stock pursuant to stock awards and restricted stock
grants shall be subject to the following terms and conditions:
(i) Number of Shares. Subject to Section 3, the number of
shares to be issued by the Company to a Participant pursuant to a
stock award or restricted stock grant shall be determined by the
Committee.
(ii) Sale Price. The Committee shall determine the prices,
if any, at which shares of restricted stock shall be issued to a
Participant, which may vary from time to time and among Participants
and which may be below the fair market value of such shares of Stock
at the date of sale and which may be zero.
(iii) Restrictions. All shares of restricted stock issued
hereunder shall be subject to such restrictions as the Committee may
determine, including, without limitation any or all of the following:
(a) a prohibition against the sale, transfer,
pledge or other encumbrance of the shares of restricted stock, such
prohibition to lapse (i) at such time or times as the Committee
shall determine (whether in annual or more frequent installments,
at the time of the death, disability or retirement of the holder of
such shares, or otherwise) or (ii) upon written certification
by the Committee of the attainment of certain performance measurements;
(b) a requirement that the holder of shares of
restricted stock forfeit, or (in the case of shares sold to a
Participant) resell back to the Company at his cost, all or a part
of such shares in the event of termination of the holder's employment
during any period in which such shares are subject to restrictions;
(c) a prohibition against employment of the holder
of such restricted stock by any competitor of the Company or its
affiliates, or against such holder's dissemination of any secret or
confidential information belonging to the Company or a subsidiary
of the Company;
(iv) No Participant shall exercise the election permitted
by Section 83(b) of the Code without the express written approval
of the Committee. Any Participant making such election without such
written approval shall forfeit all shares of restricted stock granted
to him.
Shares of restricted stock shall be registered in the name of
the Participant and deposited, together with a stock power endorsed
in blank, with the Company. Each such certificate shall bear a
legend in substantially the following form:
"The transferability of this certificate and the shares
of Common Stock represented by it are subject to the terms and
conditions (including conditions of forfeiture) contained in the 1993
Stock Incentive Plan of the Company, and an agreement entered into
between the registered owner and the Company. A copy of the Plan and
agreement is on file in the office of the Secretary of the Company."
At the end of any time period during which the shares of
restricted stock are subject to forfeiture and restrictions on
transfer or upon the attainment of certain performance
measurements, such shares will be delivered free of all
restrictions to the Participant or to the Participant's legal
representative, beneficiary or heir.
Subject to the terms and conditions of the Plan, each
Participant receiving restricted stock shall have all the rights of
a stockholder with respect to shares of stock during any period in
which such shares are subject to forfeiture and restrictions on
transfer, including without limitation, the right to vote such
shares. By accepting a stock award or a restricted stock grant, the
Participant agrees to remit when due any federal and state income
and employment taxes required to be withheld. Dividends paid in
cash or property other than Stock with respect to shares of
restricted stock shall be paid to the Participant currently or, at
the election of the Participant, be reinvested by the Participant
under the Company's Dividend Reinvestment Plan. Shares purchased
with reinvested dividends shall not be restricted.
18. Termination and Amendment of the Plan. The Board of
Directors of the Company may amend, terminate or suspend the Plan
at any time, in its sole and absolute discretion; provided,
however, that to the extent required to qualify the Plan under Rule
16b-3, no amendment that would (a) materially increase the number
of shares of Stock that may be issued under the Plan, (b)
materially modify the requirements as to eligibility for
participation in the Plan, or (c) otherwise materially increase the
benefits accruing to Participants under the Plan shall be made
without the approval of the Company's stockholders.
19. Written Agreement. Each Option or restricted stock
granted hereunder shall be embodied in a written agreement, which
shall be subject to the terms and conditions prescribed above and
shall be signed by the Participant and by the Chairman of the
Board, the Vice Chairman, the President or any Vice President of
the Company for and in the name and on behalf of the Company.
Stock awards granted hereunder may be embodied in such a written
agreement. Such an Option, stock award or restricted stock
agreement shall contain such other provisions as the Committee in
its discretion shall deem advisable.
20. Indemnification of Committee. The Company shall
indemnify each present and future member of the Committee against,
and each member of the Committee shall be entitled without further
act on his part to indemnity from the Company for, all expenses
(including the amount of judgments and the amount of approved
settlements made with a view to the curtailment of costs of
litigation, other than amounts paid to the Company itself)
reasonably incurred by him in connection with or arising out of any
action, suit or proceeding in which he may be involved by reason of
his being or having been a member of the Committee, whether or not
he continues to be such member of the Committee at the time of
incurring such expenses; provided, however, that such indemnity
shall not include any expenses incurred by any such member of the
Committee (a) in respect of matters as to which he shall be finally
adjudged in any such action, suit or proceeding to have been guilty
of gross negligence or willful misconduct in the performance of his
duty as such member of the Committee, or (b) in respect of any
matter in which any settlement is effected, to an amount in excess
of the amount approved by the Company on the advice of its legal
counsel; and provided further, that no right of indemnification
under the provisions set forth herein shall be available to or
enforceable by any such member of the Committee unless, within
sixty (60) days after institution of any such action, suit or
proceeding, he shall have offered the Company, in writing, the
opportunity to handle and defend same at its own expense. The
foregoing right of indemnification shall inure to the benefit of
the heirs, executors or administrators of each such member of the
Committee and shall be in addition to all other rights to which
such member of the Committee may be entitled as a matter of law,
contract, or otherwise.
21. Adoption, Approval and Effective Date of Plan. The
Plan shall be considered adopted and shall become effective on the
date the Plan is approved by the Board of Directors of the Company;
provided, however, that the Plan and any grants of Options, stock
awards or restricted stock grants thereunder, shall be void, if the
stockholders of the Company shall not have approved adoption of the
Plan within twelve months after such effective date.
22. Governing Law. This Plan and all determinations made
and actions taken pursuant hereto shall be governed by the laws of
the State of Delaware, without reference to principles of conflict
of laws, and shall be construed accordingly.
23. Compliance with SEC Regulations. It is the Company's
intent that the Plan comply in all respects with Rule 16b-3, and
any successor rule pursuant thereto. If any provision of this Plan
is later found not to be in compliance with the Rule, the provision
shall be deemed null and void. All grants of Options and Stock and
all exercises of Options under this Plan shall be executed in
accordance with the requirements of Section 16 of the Securities
Exchange Act of 1934, as amended, and any regulations promulgated
thereunder.
EXHIBIT 4(e)
BROWNING-FERRIS INDUSTRIES, INC.
1993 Non-Employee Director Stock Plan
1. Purpose. The 1993 Non-Employee Director Stock Plan (the "Plan")
is to benefit Browning-Ferris Industries, Inc. (the "Company") and its
subsidiary corporations by offering its non-employee directors (the
"Eligible Directors") an opportunity to become owners of the Common Stock,
$.16-2/3 par value, of the Company (the "Stock") and is intended to advance
the best interests of the Company by increasing their proprietary interest
in the success of the Company and its subsidiary corporations.
2. Administration. The Plan shall be administered by the Board of
Directors of the Company (the "Board"). Subject to the terms of the Plan,
the Board shall have the power to construe the provisions of the Plan, or
of options granted hereunder (the "Options") or Stock issued hereunder, to
determine all questions arising thereunder, and to adopt and amend such
rules and regulations for administering the Plan as the Board deems
desirable.
3. Available Shares. The total amount of the Stock with respect to
which Options and Stock paid in lieu of directors' annual retainer that may
be granted under this Plan shall not exceed in the aggregate Two Hundred
and Fifty Thousand (250,000) shares; provided, that the class and aggregate
number of shares of Stock which may be granted hereunder shall be subject to
adjustment in accordance with the provisions of Paragraph 17 hereof. Such
shares of Stock may be treasury shares or authorized but unissued shares of
Stock. In the event that any outstanding Option for any reason shall expire
or is terminated or cancelled, the shares of Stock allocable to the
unexercised portion of such Option may again be subject to an Option or
Options under the Plan.
4. Authority to Grant Options and Stock. All Options granted under
the Plan shall be non-qualified stock options. No Options shall be granted
under the Plan subsequent to December 6, 2003. The only Options and Stock
under the Plan which may be granted are those which are granted after both
adoption of the Plan and approval thereof by the stockholders of the Company
within twelve months after the date of such adoption, all as provided in
Paragraph 21 hereof.
5. Eligibility for Stock Options and Stock. The individuals who
shall be eligible to receive Options under the Plan shall be each Eligible
Director of the Company.
6. Option Grant Size and Grant Dates.
Initial Grants - An Option to purchase 5,000 shares of Stock (as
adjusted pursuant to Paragraph 17) shall be granted to each Eligible
Director the day following the Annual Meeting at which such Director is
first elected or the day following the first Annual Meeting after such
Eligible Director is first elected or appointed by the Board to be a
Director, whichever is applicable (an "Initial Grant"); provided, that if
an Eligible Director who previously received an Initial Grant terminates
service as a Director and is subsequently elected or appointed to the
Board, such Director shall not be eligible to receive a second Initial
Grant, but shall be eligible to receive only Annual Grants as provided in
this Paragraph 6, beginning with the Annual Meeting held during the fiscal
year immediately following the year in which such Director was reelected or
appointed.
Annual Grants - An Option to purchase 2,500 shares (as adjusted
pursuant to Paragraph 17) shall be granted each year, the day following the
Annual Meeting, to each director who is an Eligible Director at such time
(except as set forth above) and who is not receiving an Initial Grant (each,
an "Annual Grant").
If however, the General Counsel of the Company determines, in his
sole discretion, that the Company is in possession of material, nonpublic
information about the Company, then the Initial and Annual Grant to the
Eligible Directors shall be suspended until the second trading day after
public dissemination of such information.
7. Option Price; Fair Market Value. The price at which shares of
Stock may be purchased by an Eligible Director pursuant to an Option (the
"Optionee") shall be the fair market value of the shares of Stock on the
date the Option is granted. For all purposes of this Plan, the "fair market
value" of the Stock shall be the mean of the highest and lowest selling
prices of the Stock as reported in The Wall Street Journal for the last
trading day before the date as of which such fair market value is to be
determined. No Option may be repriced.
8. Duration of Options. The term of each Option hereunder shall
be ten years, and no Option shall be exercisable after the expiration of
ten years from the date such Option is granted. An Option shall expire
immediately following the last day on which such Option is exercisable
pursuant to this Paragraph 8.
9. Amount Exercisable.
(a) No Option shall be exercisable earlier than six months
from the date of grant.
(b) An Option becomes exercisable according to the following
schedule:
Period from Portion of Grant That
the Date the Becomes Exercisable
Option is Granted after Such Period
One year after grant 25%
Two years after grant 50%
Three years after grant 75%
Four years after grant 100%
10. Exercise of Options. Options shall be exercised by the
delivery of written notice to the Company setting forth the number of
shares of Stock with respect to which the Option is to be exercised,
together with cash, wire transfer,
certified check, bank draft or postal or express money order payable
to the order of the Company (the "Acceptable Funds") for an amount
equal to the Option price of such shares of Stock, or at the election
of the Optionee, by exchanging shares of Stock owned by the Optionee,
so long as the exchanged shares of Stock plus Acceptable Funds paid,
if any, have a total fair market value (determined in accordance with
Paragraph 7, as of the date of exercise) equal to the purchase prices
for such shares to be acquired upon exercise of said Option, and
specifying the address to which the certificates for such shares are to
be mailed. Whenever an Option is exercised by exchanging shares of
Stock theretofore owned by the Optionee: (1) no shares of Stock received
upon exercise of that Option thereafter may be exchanged to pay the
Option price for additional shares of Stock within the
following six months; and (2) the Optionee shall deliver to the
Company certificates registered in the name of such Optionee
representing a number of shares of Stock legally and beneficially
owned by such Optionee, free of all liens, claims, and encumbrances of
every kind, accompanied by stock powers duly endorsed in blank by the
record holder of the shares represented by such certificates, with
signature guaranteed by a commercial bank or trust company or by a
brokerage firm having a membership on a registered national stock
exchange. Such notice may be delivered in person to the Secretary of
the Company, or may be sent by mail to the Secretary of the Company,
in which case delivery shall be deemed made on the date such notice
is received. As promptly as practicable after receipt of such written
notification and payment, the Company shall deliver to the Optionee
certificates for the number of shares with respect to which such Option
has been so exercised, issued in the Optionee's name; provided, that
such delivery shall be deemed effected for all purposes when a stock
transfer agent of the Company shall have deposited such certificates
in the United States mail, addressed to the Optionee, at the address
specified pursuant to this Paragraph 10. The delivery of certificates
upon the exercise of Options is subject to the condition that the
person exercising such Option provide the Company with such
information as the Company might reasonably request pertaining to
such exercise, sale or other disposition.
11. Transferability of Options. Options shall not be transferable
by the Optionee other than by will or under the laws of descent and
distribution, and shall be exercisable, during the Optionee's lifetime,
only by the Optionee or his legal guardian or representative.
12. Termination of Directorship of Optionee. If, before the date
of expiration of the Option, the Optionee shall cease to be a director
of the Company, the Option shall terminate on the earlier of such date
of expiration or one year after the date of ceasing to serve as a
director. In such event, the Optionee shall have the right prior to
the termination of such Option to exercise the Option to the extent to
which he was entitled to exercise such Option immediately prior to
ceasing to serve as a director; however, in the event that the Optionee
has ceased to serve as a director on or after attaining the age of
sixty-two (62) years, the Optionee shall be entitled to exercise all
or any part of such Option (without regard to any limitations imposed
pursuant to Paragraph 9(b) hereof, but subject to Paragraph 9(a)). Upon
the death of the Optionee, his executors, administrators, or any person
or persons to whom his Option may be transferred by will or by the laws
of descent and distribution, shall have the right, at any time prior to
the earlier of the date of expiration or one year following the date of
such death, to exercise the Option, in whole or in part (without regard
to any limitations imposed pursuant to Paragraph 9(b) hereof, but subject
to Paragraph 9(a)).
13. Issuance of Shares in Lieu of Payment of Retainer Fee.
One-third of each Eligible Director's annual retainer fee for service
as a member of the Company's Board of Directors shall be paid in Stock.
Such shares shall be issued the day following each Annual Meeting or the
day following the first Annual Meeting after such Eligible Director is
first elected or appointed by the Board to be a director, whichever is
applicable. If, however, the General Counsel of the Company determines,
in his sole discretion, that the Company is in possession of material,
nonpublic information about the Company, then such issuance shall be
delayed until the second trading day after public dissemination of such
information. The number of shares to be issued shall be that number
equal to one-third of the annual retainer for service as a member of
the Company's Board of Directors divided by the fair market value of
the Stock as determined pursuant to Paragraph 7 above. No fractional
shares shall be issued, but the number of shares shall be rounded up to
the nearest whole share.
The Stock in lieu of retainer fee issued under this Paragraph shall
have a restriction period of three (3) years. Notwithstanding any other
provision of this Paragraph, such Stock shall be subject to the following
terms and conditions:
(a) Stock in lieu of retainer fee shall be represented by a stock
certificate registered in the name of the holder. The holder shall have
the right to enjoy all stockholder rights during the restriction period
(including the right to vote the shares and the right to receive any cash
dividends) with the exception that:
(i) The holder may not sell, transfer, pledge or assign the
Stock during the restriction period;
(ii) The Company will retain custody of the certificate for
the Stock during the restriction period; and
(iii) A breach of the terms and conditions during the restriction
period shall cause a forfeiture of the Stock.
(b) All restrictions shall lapse and the holder of such Stock shall
be entitled to the delivery of a stock certificate or certificates upon the
earliest of the following:
(i) Three (3) years from the date the applicable shares are
issued in the name of to such holder;
(ii) The date of the holder's death or disability;
(iii) The date the holder, after being nominated by the Board,
is not elected by the stockholders in an election for the Board; or
(iv) The date on which the Board determines that the holder
will not be nominated for election to the Board.
(c) Restricted stock shall be entirely forfeited in the event that
during a restriction period the holder:
(i) Resigns (other than by reason of disability) or is removed
for cause from the Board during his elected term; or
(ii) Refuses to stand for an election to the Board after having
been nominated by the Board or withdraws his name from consideration for
nomination.
For purposes of subsection (b) above, "disability" shall mean
long term disability as determined under rules and procedures that apply
under the Company's long term disability plan then in effect. For purposes
of subsection (c) above, a holder shall be considered to have been removed
for cause if and only if he is dismissed on account of any act of (a) fraud
or intentional misrepresentation, or (b) embezzlement, misappropriation, or
conversion of assets or opportunities of the Company or any subsidiary of
the Company.
14. Requirements of Law. The Company shall not be required to issue
any shares under any Option or as partial payment for annual retainer fees
if the issuance of such shares shall constitute a violation by the Optionee
or the Company of any provisions of any law or regulation of any
governmental authority.
15. No Rights as Stockholder. No Optionee shall have rights as a
Stockholder with respect to shares covered by any Option until the date of
issuance of a stock certificate for such shares; and, except as otherwise
provided in Paragraph 17 hereof, no adjustment for dividends, or otherwise,
shall be made if the record date thereof is prior to the date of issuance
of such certificate.
16. No Employment or Nomination Obligation. The granting of any
Option shall not impose upon the Company or its stockholders any obligation
to employ any Optionee or to continue to nominate any Optionee for election
as a director of the Company.
17. Changes in the Company's Capital Structure. The existence of
outstanding Options shall not affect in any way the right or power of the
Company or its stockholders to make or authorize any or all adjustments,
recapitalizations, reorganizations or other changes in the Company's
capital structure or its business, or any merger or consolidation of the
Company, or any issue of bonds, debentures, preferred or prior preference
stock ahead of or affecting the Stock or the rights thereof, or the
dissolution or liquidation of the Company, or any sale or transfer of
all or any part of its assets or business, or any other corporate act or
proceeding, whether of a similar character or otherwise.
If the Company shall effect a subdivision or consolidation of shares
or other capital readjustment, the payment of a stock dividend, or other
increase or reduction of the number of shares of the Stock outstanding,
without receiving compensation therefor in money, services or property,
then (a) the number, class, and per share price of shares of Stock subject
to outstanding Options hereunder shall be appropriately adjusted in such
a manner as to entitle an Optionee to receive upon exercise of an Option,
for the same aggregate cash consideration, an equivalent total number and
class of shares as he would have received had he exercised his Option in
full immediately prior to the event requiring the adjustment; and (b) the
number and class of shares then reserved for issuance under the Plan shall
be adjusted by substituting for the total number and class of shares of
Stock then reserved that number and class of shares of Stock that would
have been received by the owner of an equal number of outstanding shares
of each class of Stock as the result of the event requiring the adjustment.
After a merger of one or more corporations into the Company, or after
a consolidation of the Company and one or more corporations in which the
Company shall be the surviving corporation, each holder of an outstanding
Option shall, at no additional cost, be entitled upon exercise of such
Option to receive (subject to any required action by stockholders) in lieu
of the number and class of shares as to which such Option would have been
so exercisable in the absence of such event, the number and class of shares
of stock or other securities to which such holder would have been entitled
pursuant to the terms of the agreement of merger or consolidation if,
immediately prior to such merger or consolidation, such holder had been the
holder of record of the number and class of shares of Stock equal to the
number and class of shares as to which such Option shall be so exercised.
If the Company is merged into or consolidated with another corporation
under circumstances where the Company is not the surviving corporation, or
if the Company sells or otherwise disposes of substantially all its assets
to another corporation and is liquidated while unexercised Options remain
outstanding under the Plan, (i) after the effective date of such merger,
consolidation or sale and liquidation, as the case may be, each holder of
an outstanding Option shall be entitled, upon exercise of such Option, to
receive, in lieu of shares of the Stock, shares of such stock or other
securities as the holders of shares of such class of Stock received pursuant
to the terms of the merger, consolidation or sale; and (ii) notwithstanding
Paragraph 9(b) hereof, but subject to Paragraph 9(a), all Options, from and
after the date of any agreement regarding such merger, consolidation, or
sale and liquidation, as the case may be, shall be exercisable in full prior
to the effective date of such merger, consolidation or sale and liquidation.
Except as herein before expressly provided, the issue by the Company of
shares of stock of any class, or securities convertible into shares of stock
of any class, for cash or property, or for labor or services either upon
direct sale or upon the exercise of rights or warrants to subscribe
therefor, or upon conversion of shares or obligations of the Company
convertible into such shares or other securities, shall not affect, and no
adjustment by reason thereof shall be made with respect to, the number,
class or price of shares of Stock then subject to outstanding Options.
18. Termination and Amendment of Plan. The Board of Directors of
the Company may amend, terminate or suspend the Plan at any time, in its
sole and absolute discretion; provided, however, to the extent required to
qualify the Plan under Rule 16b-3 promulgated under Section 16 of the
Securities Exchange Act of 1934, as amended, no amendment shall be made more
than once every six months that would change the amount, price or timing of
the Initial and Annual Grants or the Stock issued in lieu of annual retainer
fee, other than to comport with changes in the Internal Revenue Code of 1986,
as amended, the Employee Retirement Income Security Act or the rules and
regulations promulgated thereunder; and provided, further, to the extent
required to qualify the Plan under Rule 16b-3, no amendment that would (a)
materially increase the number of shares of the Stock that may be issued
under the Plan, (b) materially modify the requirements as to eligibility
for participation in the Plan, or (c) otherwise materially increase the
benefits accruing to participants under the Plan, shall be made without the
approval of the Company's stockholders.
19. Written Agreement. Each Option granted hereunder or Stock issued
hereunder shall be embodied in a written agreement, which shall be subject
to the terms and conditions prescribed above and shall be signed by the
Eligible Director and by the Chairman of the Board, the Vice Chairman, the
President or any Vice President of the Company for and in the name and on
behalf of the Company.
20. Indemnification of Board. The Company shall indemnify each
present and future member of the Board against, and each member of the
Board shall be entitled without further act on his part to indemnity from
the Company for, all expenses (including the amount of judgments and the
amount of approved settlements made with a view to the curtailment of costs
of litigation, other than amounts paid to the Company itself) reasonably
incurred by him in connection with or arising out of any action, suit or
proceeding in which he may be involved by reason of his being or having
been a member of the Board, whether or not he continues to be such member
of the Board at the time of incurring such expenses; provided, however,
that such indemnity shall not include any expenses incurred by any such
member of the Board (a) in respect of matters as to which he shall be
finally adjudged in any such action, suit or proceeding to have been
guilty of gross negligence or willful misconduct in the performance of his
duty as such member of the Board, or (b) in respect of any matter in which
any settlement is effected, to an amount in excess of the amount approved
by the Company on the advice of its legal counsel; and provided further,
that no right of indemnification under the provisions set forth herein
shall be available to or enforceable by any such member of the Board unless,
within sixty (60) days after institution of any such action, suit or
proceeding, he shall have offered the Company, in writing, the opportunity
to handle and defend same at its own expense. The foregoing right of
indemnification shall inure to the benefit of the heirs, executors or
administrators of each such member of the Board and shall be in addition
to all other rights to which such member of the Board may be entitled as
a matter of law, contract, or otherwise.
21. Adoption, Approval and Effective Date of Plan. The Plan shall
be considered adopted and shall become effective on the date the Plan is
approved by the stockholders of the Company.
22. Governing Law. This Plan and all determinations made and actions
taken pursuant hereto shall be governed by the laws of the State of Delaware,
without reference to principles of conflict of laws, and shall be construed
accordingly.
23. Compliance with SEC Regulations. It is the Company's intent that
the Plan comply in all respects with Rule 16b-3, and any successor rule
pursuant thereto. If any provision of this Plan is later found not to be
in compliance with the Rule, the provision shall be deemed null and void.
All grants of Options and Stock and all exercises of Options under this
Plan shall be executed in accordance with the requirements of Section 16 of
the Securities Exchange Act of 1934, as amended, and any regulations
promulgated thereunder.
Exhibit 4(O)
BROWNING-FERRIS INDUSTRIES, INC.
1993 NON-EMPLOYEE DIRECTOR STOCK PLAN
NON-QUALIFIED STOCK OPTION
Under the terms and conditions of the 1993 Non-Employee Director Stock
Plan (the "Plan") of Browning-Ferris Industries, Inc., a Delaware
corporation (the "Company"), a copy of which is attached hereto and
incorporated herein by reference, the Company hereby grants to
____________, effective on the Date of Grant indicated below, the option
to purchase _____ shares of the Company's Common Stock, $.16-2/3 par
value (the "Common Stock"), at the price of ______ per share, subject to
adjustment as provided in the Plan.
This option shall be a non-qualified stock option for a term commencing
on the Date of Grant and ending ________________________. Further, this
option shall terminate on the earlier of such expiration date or a
period of thirty (30) days following the severance of the employment or
the affiliate relationship, as the case may be, between the Company and
the optionee for any reason, with or without cause, other than death or
retirement in the case of an employee as set forth in more detail in the
Plan. During the thirty day period following the severance of the
employment or affiliate relationship, the optionee may exercise the
option, but only with respect to the number of shares of Common Stock
that could have been acquired under the option on the date of severance
of the employment or affiliate relationship.
This option shall not be exercisable to any extent by the optionee
unless and until the Plan is approved by the Company's shareholders, a
registration statement with respect to the Common Stock covered by the
Plan shall be effective under the Securities Act of 1933, as amended,
and the Common Stock is listed for issuance with the various stock
exchanges. Subject to the satisfaction of the foregoing conditions
precedent, this option shall be exercisable during each yearly period
following the Date of Grant to the extent of the cumulative percentage
of the shares covered by this option as indicated in the following
table:
Yearly Period Following Cumulative Percentage
Date of Grant of Options Exercisable
First 0%
Second 25%
Third 50%
Fourth 75%
Thereafter 100%
The optionee hereby accepts and agrees to be bound by all the terms
and conditions of the Plan.
BROWNING-FERRIS INDUSTRIES, INC.
Date:____________________ By:_________________________________
(Date of Grant) Gerald K. Burger
Vice President and Secretary
ACCEPTED: Optionee's Permanent Mailing
Address:
(Please print or type)
___________________________________
___________________________________
(Please print or type full name)
___________________________________
___________________________________
Full Signature of Optionee
OPTIONEE SOCIAL SECURITY NUMBER
___________________________________
Exhibit 4(N)
BROWNING-FERRIS INDUSTRIES, INC.
1993 STOCK INCENTIVE PLAN AGREEMENT
NON-QUALIFIED STOCK OPTION
Under the terms and conditions of the 1993 Stock Incentive Plan (the "Plan")
of Browning-Ferris Industries, Inc., a Delaware corporation (the "Company"),
a copy of which is attached hereto and incorporated herein by reference, the
Company hereby grants to _________________, effective on the Date of Grant
indicated below, the option to purchase _____________ shares of the Company's
Common Stock, $.16-2/3 par value (the "Common Stock"), at the price of
______________ per share, subject to adjustment as provided in the Plan.
This option shall be a non-qualified stock option for a term commencing on
the Date of Grant and ending ________________________. Further, this option
shall terminate on the earlier of such expiration date or a period of thirty
(30) days following the severance of the employment or the affiliate
relationship, as the case may be, between the Company and the optionee for
any reason, with or without cause, other than death or retirement in the
case of an employee as set forth in more detail in the Plan. During the
thirty day period following the severance of the employment or affiliate
relationship, the optionee may exercise the option, but only with respect
to the number of shares of Common Stock that could have been acquired
under the option on the date of severance of the employment or affiliate
relationship.
This option shall not be exercisable to any extent by the optionee unless
and until the Plan is approved by the Company's shareholders, a registration
statement with respect to the Common Stock covered by the Plan shall be
effective under the Securities Act of 1933, as amended, and the Common Stock
is listed for issuance with the various stock exchanges. Subject to the
satisfaction of the foregoing conditions precedent, this option shall be
exercisable during each yearly period following the Date of Grant to the
extent of the cumulative percentage of the shares covered by this option as
indicated in the following table:
Yearly Period Following Cumulative Percentage
Date of Grant of Options Exercisable
First 0%
Second 25%
Third 50%
Fourth 75%
Thereafter 100%
The optionee hereby accepts and agrees to be bound by all the terms and
conditions of the Plan.
BROWNING-FERRIS INDUSTRIES, INC.
Date:_________________ By:_______________________________
(Date of Grant) Gerald K. Burger
Vice President and Secretary
ACCEPTED: Optionee's Permanent Mailing Address:
(Please print or type)
____________________________________
____________________________________
(Please print or type full name)
____________________________________
____________________________________
Full Signature of Optionee
OPTIONEE SOCIAL SECURITY NUMBER
_______________________________
EXHIBIT 5
FULBRIGHT & JAWORSKI
L.L.P.
a registered limited liability partnership Houston
1301 McKinney Street, Suite 5100 Washington, D.C.
Houston, Texas 77010-3095 Austin
Telephone: 713/651-5151 San Antonio
Telex: 76-2829 Dallas
Facsimile: 713/651-5246 New York
Los Angeles
London
Zurich
Hong Kong
April 25, 1994
Browning-Ferris Industries, Inc.
757 N. Eldridge
Houston, Texas 77079
Gentlemen:
We have acted as counsel for Browning-Ferris Industries,
Inc., a Delaware corporation (the "Company"), in connection with
its filing with the Securities and Exchange Commission of a
Registration Statement on Form S-8 (the "Registration Statement")
with respect to the registration under the Securities Act of 1933,
as amended, of 7,250,000 shares of the Company's common stock, $.16
2/3 par value per share, including the preferred stock purchase
rights associated therewith (collectively, the "Shares"), of which
7,000,000 Shares are to be offered upon the terms and subject to
the conditions set forth in the Company's 1993 Stock Incentive Plan
(the "Incentive Plan") and 250,000 Shares are to be offered upon
the terms and subject to the conditions set forth in the Company's
1993 Non-Employee Director Stock Plan (the "Director Plan").
We have examined (i) the Restated Certificate of
Incorporation and By-Laws of the Company, each as amended to date,
(ii) the Incentive Plan and the Director Plan, (iii) the
Registration Statement, and (iv) such certificates, statutes and
other instruments and documents as we considered appropriate for
purposes of the opinions hereafter expressed.
In connection with this opinion, we have assumed the
authenticity and completeness of all records, certificates and
other instruments submitted to us as originals, the conformity to
original documents of all records, certificates and other
instruments submitted to us as copies, the authenticity and
completeness of the originals of those records, certificates and
other instruments submitted to us as copies and the correctness of
all statements of fact contained in all records, certificates and
other instruments that we have examined.
Based upon and subject to the foregoing, we are of the
opinion that the Shares have been duly authorized and, when issued
in accordance with the terms of the Incentive Plan or the Director
Plan, as the case may be, will be validly issued, fully paid and
nonassessable.
We hereby consent to the filing of this opinion as an
exhibit to the Registration Statement.
Very truly yours,
Fulbright & Jaworski L.L.P.
ARTHUR ANDERSEN & CO.
Exhibit 23(a)
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the
incorporation by reference in this Registration Statement on
Form S-8 of our report dated December 7, 1993, included in
Browning-Ferris Industries, Inc.'s Annual Report on Form 10-K
for the year ended September 30, 1993, and to all references
to our Firm included in this Registration Statement.
ARTHUR ANDERSEN & CO.
Houston, Texas
April 27, 1994
