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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
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FORM 8-K
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CURRENT REPORT PURSUANT
TO SECTION 13 OR 15(D) OF THE
SECURITIES EXCHANGE ACT OF 1934
MARCH 9, 1994
DATE OF REPORT (DATE OF EARLIEST EVENT REPORTED)
BROWNING-FERRIS INDUSTRIES, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
DELAWARE
(STATE OR OTHER JURISDICTION OF INCORPORATION)
<TABLE>
<S> <C>
1-6805 74-1673682
(COMMISSION FILE NUMBER) (I.R.S. EMPLOYER IDENTIFICATION NO.)
757 N. ELDRIDGE, HOUSTON, TEXAS 77079
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE)
</TABLE>
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(713) 870-8100
(REGISTRANT'S TELEPHONE NUMBER, INCLUDING AREA CODE)
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ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS
This Form 8-K is being filed in order to file certain exhibits to
Registration Statement No. 33-51879, and such exhibits are being incorporated
into Registration Statement No. 33-51879.
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<CAPTION>
SEC FILE OR EXHIBIT
EXHIBITS REGISTRATION NUMBER NUMBER
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<C> <S> <C> <C>
1(a) Underwriting Agreement (U.S. Version)
between Browning-Ferris Industries, Inc.
and Goldman, Sachs & Co., CS First Boston
Corporation and Smith Barney Shearson Inc.
as Representatives of the several
Underwriters named in Schedule 1 thereto,
dated March 9, 1994
1(b) Underwriting Agreement (International
Version) between Browning-Ferris
Industries, Inc. and Goldman Sachs
International, CS First Boston Limited
and, Smith Barney Shearson Inc. as
Representatives of the several
Underwriters named in Schedule 1 thereto,
dated March 9, 1994
*4(a) Restated Certificate of Incorporation of 1-6805 (10-K, 3(a)
Browning-Ferris Industries, Inc., dated September 30,
October 7, 1991 1993)
*4(b) By-laws of the Registrant, as amended 1-6805 (10-K, 3(b)
through March 3, 1993 September 30,
1993)
</TABLE>
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* Incorporated by reference.
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SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
BROWNING-FERRIS INDUSTRIES, INC
-------------------------------
(Registrant)
March 10, 1994 By /s/ HENRY L. HIRVELA
-------------------------------
Henry L. Hirvela
Vice President and Treasurer
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BROWNING-FERRIS INDUSTRIES, INC.
COMMON STOCK
(PAR VALUE $.16 2/3 PER SHARE)
------------------------
UNDERWRITING AGREEMENT
(U.S. VERSION)
----------------------------------
March 9, 1994
Goldman, Sachs & Co.
CS First Boston Corporation
Smith Barney Shearson Inc.
As Representatives of the several Underwriters
named in Schedule I hereto
c/o Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
Dear Sirs:
Browning-Ferris Industries, Inc., a Delaware corporation (the "Company"),
proposes, subject to the terms and conditions stated herein, to issue and sell
to the Underwriters named in Schedule I hereto (the "Underwriters") an aggregate
of 10,125,000 shares (the "Firm Shares") and, at the election of the
Underwriters, up to 1,518,750 additional shares (the "Optional Shares") of
Common Stock, par value $.16 2/3 per share ("Stock"), of the Company. The Firm
Shares and the Optional Shares which the Underwriters elect to purchase pursuant
to Section 2 hereof are herein collectively called the "Shares."
It is understood and agreed to by all parties that the Company is
concurrently entering into an agreement (the "International Underwriting
Agreement") providing for the sale by the Company of up to a total of 3,881,250
shares of Stock (the "International Shares"), including the overallotment option
thereunder, through arrangements with certain underwriters outside the United
States (the "International Underwriters"), for whom Goldman Sachs International,
CS First Boston Limited and Smith Barney Shearson Inc. are acting as lead
managers. Anything herein or therein to the contrary notwithstanding, the
respective closings under this Agreement and the International Underwriting
Agreement are hereby expressly made conditional on each other. The Underwriters
hereunder and the International Underwriters are simultaneously entering into an
Agreement between U.S. and International Underwriting Syndicates (the "Agreement
between Syndicates") which provides, among other things, for the transfer of
shares of Stock between the two syndicates. Two forms of prospectuses are to be
used in connection with the offering and sale of shares of Stock contemplated by
the foregoing, one relating to the Shares hereunder and the other relating to
the International Shares. The latter form of prospectus will be identical to the
former except for certain substitute pages as included in the supplements
thereto as mentioned below. Except as used in Sections 2, 3, 4, 9 and 11 herein,
and except as the context may otherwise require, references hereinafter to the
Shares shall include all the shares of Stock which may be sold pursuant to
either this Agreement or the International Underwriting Agreement, and
references herein to any prospectus whether in preliminary or final form, and
whether as amended or supplemented, shall include both the U.S. and the
international versions thereof.
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1. (a) The Company represents and warrants to, and agrees with, each of the
Underwriters that:
(i) A registration statement in respect of one or more series of debt
securities, preferred stock, warrants and shares of Stock having an
aggregate initial public offering price not in excess of $700,000,000,
including the Firm Shares and the Optional Shares, has been filed with the
Securities and Exchange Commission (the "Commission"); such registration
statement and any post-effective amendment thereto, each in the form
heretofore delivered to you, and, excluding exhibits thereto but including
all documents incorporated by reference in the base prospectus contained
therein, have been declared effective by the Commission in such form; no
other document with respect to such registration statement or document
incorporated by reference therein has heretofore been filed with the
Commission other than the Company's Quarterly Report on Form 10-Q for the
quarter ended December 31, 1993, copies of which have been provided to you;
and no stop order suspending the effectiveness of such registration
statement has been issued and no proceeding for that purpose has been
initiated or, to the knowledge of the Company, threatened by the Commission
(the base prospectus included in such registration statement or filed with
the Commission pursuant to Rule 424(a) of the rules and regulations of the
Commission under the Securities Act of 1933, as amended (the "Act"), as
supplemented to reflect the preliminary terms of the offering of the
Shares, being hereinafter called a "Preliminary Prospectus"; (A) the
various parts of such registration statement, including all exhibits
thereto and including the information contained in the form of such base
prospectus, as supplemented to reflect the final terms of the offering of
the Shares, filed with the Commission pursuant to Rule 424(b) under the Act
in accordance with Section 5(a) hereof and (B) the documents incorporated
by reference in the base prospectus contained in the registration statement
at the time such part of the registration statement became effective, each
as amended at the time such part of the registration statement became
effective, being hereinafter called the "Registration Statement"; such base
prospectus, as supplemented to reflect the final terms of the offering of
the Shares, in the form first filed pursuant to Rule 424(b) under the Act,
being hereinafter called the "Prospectus"; any reference herein to any
Preliminary Prospectus or the Prospectus shall be deemed to refer to and
include the documents incorporated by reference therein pursuant to Item 12
of Form S-3 under the Act, as of the date of such Preliminary Prospectus or
Prospectus, as the case may be; any reference to any amendment or
supplement to any Preliminary Prospectus or the Prospectus shall be deemed
to refer to and include any documents filed after the date of such
Preliminary Prospectus or Prospectus, as the case may be, under the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and
incorporated by reference in such Preliminary Prospectus or Prospectus, as
the case may be; and any reference to any amendment to the Registration
Statement shall be deemed to refer to and include any quarterly or current
report of the Company filed pursuant to Section 13(a) or 15(d) of the
Exchange Act after the effective date of the Registration Statement that is
incorporated by reference in the Registration Statement);
(ii) No order preventing or suspending the use of any Preliminary
Prospectus has been issued by the Commission, and each Preliminary
Prospectus, at the time of filing thereof, conformed in all material
respects to the requirements of the Act and the rules and regulations of
the Commission thereunder, and did not contain an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided,
however, that this representation and warranty shall not apply to any
statements or omissions made in reliance upon and in conformity with
information furnished in writing to the Company by an Underwriter through
you expressly for use therein;
(iii) The documents incorporated by reference in the Prospectus, when
they became effective or were filed with the Commission, as the case may
be, conformed in all material respects to the requirements of the Act or
the Exchange Act, as applicable, and the rules and regulations of the
Commission thereunder, and none of such documents contained an untrue
statement of a material fact or omitted to state a material fact required
to be stated therein or necessary to make the
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statements therein not misleading; and any further documents so filed and
incorporated by reference in the Prospectus or any further amendment or
supplement thereto, when such documents become effective or are filed with
the Commission, as the case may be, will conform in all material respects
to the requirements of the Act or the Exchange Act, as applicable, and the
rules and regulations of the Commission thereunder and will not contain an
untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein
not misleading; provided, however, that this representation and warranty
shall not apply to any statements or omissions made in reliance upon and in
conformity with information furnished in writing to the Company by an
Underwriter through you expressly for use therein;
(iv) The Registration Statement conforms, and the Prospectus and any
further amendments or supplements to the Registration Statement or the
Prospectus will conform, in all material respects to the requirements of
the Act and the rules and regulations of the Commission thereunder and do
not and will not, as of the applicable effective date as to the
Registration Statement and any amendment thereto and as of the applicable
filing date as to the Prospectus and any amendment or supplement thereto,
contain an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements
therein not misleading; provided, however, that this representation and
warranty shall not apply to any statements or omissions made in reliance
upon and in conformity with information furnished in writing to the Company
by an Underwriter through you expressly for use therein;
(v) Neither the Company nor any of its subsidiaries identified in
Schedule II hereto (the "Principal Subsidiaries") has sustained since the
date of the latest audited financial statements included or incorporated by
reference in the Prospectus any loss or interference with its business from
fire, explosion, flood or other calamity, whether or not covered by
insurance, or from any labor dispute or court or governmental action, order
or decree, which is material to the Company and its subsidiaries considered
as a whole, otherwise than as set forth or contemplated in the Prospectus;
and, since the respective dates as of which information is given in the
Registration Statement and the Prospectus, there has not been any change in
the capital stock (except for capital stock issued pursuant to the
Company's Dividend Reinvestment Plan or employee benefit plans or upon
exercise of stock options or the acquisition of any business or properties
in the Company's ongoing acquisition program) or increase in consolidated
long-term debt of the Company (excluding commercial paper) in excess of
$100,000,000 or any material adverse change, or any development which the
Company believes will involve a prospective material adverse change, in or
affecting the Company's management or the financial position or results of
operations of the Company and its subsidiaries considered as a whole,
otherwise than as set forth or contemplated in the Prospectus;
(vi) The Company has been duly incorporated and is validly existing as
a corporation in good standing under the laws of the State of Delaware,
with full corporate power and authority to own its properties and conduct
its business as described in the Prospectus, and has been duly qualified as
a foreign corporation for the transaction of business and is in good
standing under the laws of each other jurisdiction in which it owns or
leases properties, or conducts any business, so as to require such
qualification, or is subject to no material liability or disability by
reason of the failure to be so qualified or in good standing in any such
jurisdiction; and each Principal Subsidiary of the Company has been duly
incorporated and is validly existing as a corporation in good standing
under the laws of its jurisdiction of incorporation;
(vii) The Company has an authorized equity capitalization as set forth
in the Prospectus, and all of the issued shares of capital stock of the
Company have been duly and validly authorized and issued, and are fully
paid and non-assessable and conform in all material respects to the
description of the capital stock contained in the Prospectus; and all of
the issued shares of capital stock of each Principal Subsidiary of the
Company have been duly and validly authorized and issued, are fully paid
and non-assessable and are owned directly or indirectly by the Company,
free and clear of all liens, encumbrances, equities or other adverse
claims;
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(viii) The unissued Shares to be issued and sold by the Company to the
Underwriters hereunder and under the International Underwriting Agreement,
and the preferred stock purchase rights (the "Rights") to be issued with
such Shares, have been duly and validly authorized and, when issued and
delivered against payment therefor as provided herein and therein, will be
duly and validly issued and fully paid and non-assessable and will conform
in all material respects to the descriptions of the Stock and the Rights
contained in the Prospectus;
(ix) The issue and sale of the Firm Shares and Optional Shares by the
Company and the compliance by the Company with all of the provisions of
this Agreement and the International Underwriting Agreement and the
consummation of the transactions herein and therein contemplated will not
conflict with or result in a breach or violation of any of the terms or
provisions of, or constitute a default under, any indenture, mortgage, deed
of trust, loan agreement or other agreement or instrument to which the
Company or any of its subsidiaries is a party or by which the Company or
any of its subsidiaries is bound or to which any of the property or assets
of the Company or any of its subsidiaries is subject, nor will such action
result in any violation of the provisions of the Restated Certificate of
Incorporation or By-laws of the Company or any statute or any order, rule
or regulation of any court or governmental agency or body having
jurisdiction over the Company or any of its subsidiaries or any of their
properties; and no consent, approval, authorization, order, registration or
qualification of or with any such court or governmental agency or body is
required for the issue and sale of the Shares or the consummation by the
Company of the transactions contemplated by this Agreement and the
International Underwriting Agreement, except the registration under the Act
of the Shares and such consents, approvals, authorizations, registrations
or qualifications as may be required under state or foreign securities or
Blue Sky laws in connection with the purchase and distribution of the
Shares by the Underwriters;
(x) Other than as set forth or contemplated in the Prospectus, there
are no legal or governmental proceedings pending to which the Company or
any of its subsidiaries is a party or of which any property of the Company
or any of its subsidiaries is the subject which are required to be
described in the Prospectus and which are not described as required; and,
to the best of the Company's knowledge, no such proceedings are threatened
or contemplated by governmental authorities or threatened by others;
(xi) No "forward looking statement" (as defined in Rule 175 under the
Act) contained in the Registration Statement, any Preliminary Prospectus or
the Prospectus was made or reaffirmed without a reasonable basis or was
disclosed other than in good faith; and
(xii) Arthur Andersen & Co., who have certified certain financial
statements of the Company and its subsidiaries, are independent public
accountants as required by the Act and the rules and regulations of the
Commission thereunder.
2. Subject to the terms and conditions herein set forth, (a) the Company
agrees to sell to each of the Underwriters, and each of the Underwriters agrees,
severally and not jointly, to purchase from the Company at a purchase price per
share of $28.00, the number of Firm Shares set forth opposite the name of such
Underwriter in Schedule I hereto and (b) in the event and to the extent that the
Underwriters shall exercise the election to purchase Optional Shares as provided
below, the Company agrees to sell to each of the Underwriters, and each of the
Underwriters agrees, severally and not jointly, to purchase from the Company, at
the purchase price per share set forth in clause (a) of this Section 2, that
portion of the number of Optional Shares as to which such election shall have
been exercised (to be adjusted by you so as to eliminate fractional shares)
determined by multiplying such number of Optional Shares by a fraction the
numerator of which is the maximum number of Optional Shares which such
Underwriter is entitled to purchase as set forth opposite the name of such
Underwriter in Schedule I hereto and the denominator of which is the maximum
number of the Optional Shares which all of the Underwriters are entitled to
purchase hereunder.
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The Company hereby grants to the Underwriters the right to purchase at
their election up to 1,518,750 Optional Shares, at the purchase price per share
set forth in the paragraph above, for the sole purpose of covering
overallotments in the sale of the Firm Shares. Any such election to purchase
Optional Shares may be exercised only by written notice from you to the Company,
given within a period of 30 calendar days after the date of this Agreement and
setting forth the aggregate number of Optional Shares to be purchased and the
date on which such Optional Shares are to be delivered, as determined by you but
in no event earlier than the First Time of Delivery (as defined in Section 4
hereof) or, unless you and the Company otherwise agree in writing, earlier than
two or later than ten business days after the date of such notice.
3. Upon the authorization by you of the release of the Firm Shares, the
several Underwriters propose to offer the Firm Shares for sale upon the terms
and conditions set forth in the Prospectus.
4. Certificates in definitive form for the Shares to be purchased by each
Underwriter hereunder, and in such denominations and registered in such names as
Goldman, Sachs & Co. may request upon at least forty-eight hours' prior notice
to the Company, shall be delivered by or on behalf of the Company to you for the
account of such Underwriter, against payment by such Underwriter or on its
behalf of the purchase price therefor by certified or official bank check or
checks, payable to the order of the Company, in New York Clearing House funds,
all at the office of Goldman, Sachs & Co., 85 Broad Street, New York, New York
10004. The time and date of such delivery and payment shall be, with respect to
the Firm Shares, 9:30 a.m., New York time, on March 16, 1994, or such other time
and date as you and the Company may agree upon in writing, and, with respect to
the Optional Shares, 9:30 a.m., New York time, on the date specified by you in
the written notice given by you of the Underwriters' election to purchase such
Optional Shares, or such other time and date as you and the Company may agree
upon in writing. Such time and date for delivery of the Firm Shares is herein
called the "First Time of Delivery," such time and date for delivery of the
Optional Shares, if not the First Time of Delivery, is herein called the "Second
Time of Delivery," and each such time and date of delivery is herein called a
"Time of Delivery." Such certificates will be made available for checking and
packaging at least twenty-four hours prior to each Time of Delivery at the
office of Goldman, Sachs & Co., 85 Broad Street, New York, New York 10004.
5. The Company agrees with each of the Underwriters:
(a) To prepare the Prospectus in a form approved by you and to file
such Prospectus pursuant to Rule 424(b) under the Act not later than the
Commission's close of business on the second business day following the
execution and delivery of this Agreement, or, if applicable, such earlier
time as may be required by Rule 430A(a)(3) under the Act; to make no
further amendment or any supplement to the Registration Statement or
Prospectus prior to the last Time of Delivery which shall be reasonably
disapproved by you promptly after reasonable notice thereof; to advise you,
promptly after it receives notice thereof, of the time when any amendment
to the Registration Statement has been filed or becomes effective or any
supplement to the Prospectus or any amended Prospectus has been filed and
to furnish you copies thereof; to file promptly all reports and any
definitive proxy or information statements required to be filed by the
Company with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d)
of the Exchange Act subsequent to the date of the Prospectus and for so
long as the delivery of a prospectus is required in connection with the
offering or sale of the Shares; to advise you, promptly after it receives
notice thereof, of the issuance by the Commission of any stop order or of
any order preventing or suspending the use of any Preliminary Prospectus or
Prospectus, of the suspension of the qualification of the Shares for
offering or sale in any jurisdiction, of the initiation or threatening of
any proceeding for any such purpose, or of any request by the Commission
for the amending or supplementing of the Registration Statement or
Prospectus or for additional information; and, in the event of the issuance
of any stop order or of any order preventing or suspending the use of any
Preliminary Prospectus or Prospectus or suspending any such qualification,
to use promptly its best efforts to obtain its withdrawal;
(b) Promptly from time to time to take such action as you may
reasonably request to qualify the Shares for offering and sale under the
securities laws of such jurisdictions as you may request and to
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comply with such laws so as to permit the continuance of sales and dealings
therein in such jurisdictions for as long as may be necessary to complete
the distribution of the Shares, provided that in connection therewith the
Company shall not be required to qualify as a foreign corporation or to
file a general consent to service of process in any jurisdiction;
(c) To furnish the Underwriters with copies of the Prospectus in such
quantities as you may from time to time reasonably request, and, if the
delivery of a prospectus is required at any time prior to the expiration of
nine months after the time of issue of the Prospectus in connection with
the offering or sale of the Shares and if at such time any events shall
have occurred as a result of which the Prospectus as then amended or
supplemented would include an untrue statement of a material fact or omit
to state any material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made when
such Prospectus is delivered, not misleading, or, if for any other reason
it shall be necessary during such same period to amend or supplement the
Prospectus or to file under the Exchange Act any document incorporated by
reference in the Prospectus in order to comply with the Act or the Exchange
Act, to notify you and to file such document and upon your concurrence to
prepare and furnish without charge to each Underwriter and to any dealer in
securities as many copies as you may from time to time reasonably request
of an amended Prospectus or a supplement to the Prospectus which will
correct such statement or omission or effect such compliance, and in case
any Underwriter is required to deliver a prospectus in connection with
sales of any of the Shares at any time nine months or more after the time
of issue of the Prospectus, upon your request but at the expense of such
Underwriter, to prepare and deliver to such Underwriter as many copies as
you may request of an amended or supplemented Prospectus complying with
Section 10(a) (3) of the Act;
(d) To make generally available to its securityholders as soon as
practicable, but in any event not later than eighteen months after the
effective date of the Registration Statement (as defined in Rule 158(c)),
an earnings statement of the Company and its subsidiaries (which need not
be audited) complying with Section 11(a) of the Act and the rules and
regulations of the Commission thereunder (including at the option of the
Company Rule 158);
(e) During the period beginning from the date hereof and continuing to
90 days after the date of the Prospectus, not to offer, sell, contract to
sell or otherwise dispose of any Stock or any securities of the Company
that are substantially similar to the Stock or any securities convertible
into or exchangeable for Stock (other than pursuant to the conversion of
convertible securities outstanding on the date of this Agreement or the
Company's Dividend Reinvestment Plan, employee benefit plans or employee
stock option plans existing on the date of this Agreement or pursuant to
the acquisition of any business or properties in the Company's ongoing
acquisition program), without your prior written consent;
(f) During a period of three years from the effective date of the
Registration Statement, to furnish to you copies of all reports or other
communications (financial or other) furnished to shareholders generally,
and deliver to you (i) as soon as they are available, copies of any reports
(other than on Form 11-K) and financial statements furnished to or filed
with the Commission or any national securities exchange on which any class
of securities of the Company is listed; and (ii) such additional
information concerning the business and financial condition of the Company
as you may from time to time reasonably request (such financial statements
to be on a consolidated basis to the extent the accounts of the Company and
its subsidiaries are consolidated in reports furnished to its shareholders
generally or to the Commission); and
(g) To use its best efforts to list, subject to notice of issuance,
the Shares on the New York Stock Exchange.
6. The Company covenants and agrees with the several Underwriters that the
Company will pay or cause to be paid the following: (i) the fees, disbursements
and expenses of the Company's counsel and accountants in connection with the
registration of the Shares under the Act and all other expenses in
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connection with the preparation, printing and filing of the Registration
Statement, any Preliminary Prospectus and the Prospectus and amendments and
supplements thereto and the mailing and delivering of copies thereof to the
Underwriters and dealers; (ii) the cost of printing or producing any Agreement
among Underwriters, this Agreement, the International Underwriting Agreement,
the Agreement between Syndicates, the Selling Agreements, the Blue Sky survey
and any other documents in connection with the offering, purchase, sale and
delivery of the Shares; (iii) all expenses in connection with the qualification
of the Shares for offering and sale under state securities laws as provided in
Section 5(b) hereof, including the fees and disbursements of counsel for the
Underwriters in connection with such qualification and in connection with the
Blue Sky survey;(iv) the filing fees incident to securing any required review by
the National Association of Securities Dealers, Inc. of the terms of the sale of
the Shares; (v) the cost of preparing stock certificates; (vi) the cost and
charges of any transfer agent or registrar; and (vii) all other costs and
expenses incident to the performance of its obligations hereunder which are not
otherwise specifically provided for in this Section. It is understood, however,
that the Company shall bear the cost of any other matters not directly relating
to the sale and purchase of the Shares pursuant to this Agreement, and that,
except as provided in this Section, Section 8 and Section 11 hereof, the
Underwriters will pay all of their own costs and expenses, including the fees of
their counsel, stock transfer taxes on resale of any of the Shares by them, and
any advertising expenses connected with any offers they may make.
7. The obligations of the Underwriters hereunder, as to the Shares to be
delivered at each Time of Delivery, shall be subject, in their discretion, to
the condition that all representations and warranties and other statements of
the Company herein are, at and as of such Time of Delivery, true and correct,
the condition that the Company shall have performed all of its obligations
hereunder theretofore to be performed, and the following additional conditions:
(a) The Prospectus shall have been filed with the Commission pursuant
to Rule 424(b) within the applicable time period prescribed for such filing
by the rules and regulations under the Act and in accordance with Section
5(a) hereof; no stop order suspending the effectiveness of the Registration
Statement or any part thereof shall have been issued and no proceeding for
that purpose shall have been initiated or threatened by the Commission; and
all requests for additional information on the part of the Commission shall
have been complied with to your reasonable satisfaction;
(b) Vinson & Elkins L.L.P., counsel for the Underwriters, shall have
furnished to you such opinion or opinions, dated such Time of Delivery,
with respect to the incorporation of the Company, this Agreement, the
validity of the Shares being delivered at such Time of Delivery, the
Registration Statement, the Prospectus, and other related matters as you
may reasonably request, and such counsel shall have received such papers
and information as they may reasonably request to enable them to pass upon
such matters;
(c) Fulbright & Jaworski L.L.P., special counsel for the Company,
shall have furnished to you their written opinion, dated such Time of
Delivery, in form and substance satisfactory to you, to the effect that:
(i) The Company has been duly incorporated and is an existing
corporation in good standing under the laws of the State of Delaware,
with corporate power and authority to own its properties and conduct its
business as described in the Prospectus;
(ii) The Company has an authorized equity capitalization as set
forth in the initial paragraph of "Capital Stock" in the Prospectus, and
all of the Shares being delivered at such Time of Delivery have been
duly and validly authorized and issued and are fully paid and non-
assessable; the Shares conform in all material respects to the
description of the Stock contained in the Prospectus; and the
shareholders of the Company have no preemptive rights with respect to
the Shares;
(iii) The Rights (as defined in the Prospectus) issued with the
Shares have been duly authorized and, upon issuance of the Shares to be
issued and sold by the Company at such
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Time of Delivery, will be validly issued and conform in all material
respects to the description thereof in the Prospectus;
(iv) This Agreement and the International Underwriting Agreement
have been duly authorized, executed and delivered by the Company;
(v) The issue and sale of the Shares being delivered at such Time
of Delivery by the Company and the compliance by the Company with all of
the provisions of this Agreement and the International Underwriting
Agreement will not result in any violation of the provisions of the
Restated Certificate of Incorporation or By-laws of the Company or any
statute or any order, rule or regulation (other than federal and state
securities or Blue Sky laws and anti-fraud laws, as to which such
counsel need express no opinion in this paragraph) known to such counsel
of any court or governmental agency or body having jurisdiction over the
Company or any of its subsidiaries or any of their properties;
(vi) No consent, approval, authorization, order, registration or
qualification of or with any such court or governmental agency or body
is required for the issue and sale of the Shares or the compliance by
the Company with all of the provisions of this Agreement and the
International Underwriting Agreement, except the registration under the
Act of the Shares, and such consents, approvals, authorizations, orders,
registrations or qualifications as may be required under state
securities or Blue Sky laws in connection with the purchase and
distribution of the Shares by the Underwriters;
(vii) Neither the Company nor any subsidiary is a "holding company"
or a "subsidiary company" of a "holding company," or an "affiliate" of a
"holding company" or of a "subsidiary company" of a "holding company,"
or a "public utility" within the meaning of the Public Utility Holding
Company Act of 1935, as amended;
(viii) The discussion and the legal conclusions set forth in the
Prospectus under the heading "Certain United States Tax Consequences to
Non-United States Holders" are accurate and complete in all material
respects; and
(ix) The Registration Statement and the Prospectus and any further
amendments and supplements thereto made by the Company prior to such
Time of Delivery (other than the financial statements or other financial
data included therein, as to which such counsel need express no opinion)
comply as to form in all material respects with the requirements of the
Act and the rules and regulations thereunder.
In addition, such counsel shall state that during the course of the
preparation of the Registration Statement, the Prospectus and any amendment
or supplement thereto, such counsel participated in conferences with
officers and other representatives of the Company at which the contents of
the Registration Statement and the Prospectus and related matters were
discussed, and that, although such counsel are not passing upon and do not
assume any responsibility for the accuracy, completeness or fairness of any
portion of the Registration Statement and Prospectus, as amended or
supplemented (except to the extent set forth in paragraphs (ii) and (viii)
above), and such counsel has not checked the accuracy or completeness of,
or otherwise verified any information, including statistical information,
contained in the Registration Statement and Prospectus, as amended or
supplemented, such counsel advise that, on the basis of the foregoing
(relying as to materiality to a certain extent upon officers and other
representatives of the Company), no facts came to such counsel's attention
which have caused such counsel to believe that, as of the effective date of
the Registration Statement, the Registration Statement contained an untrue
statement of a material fact or omitted to state a material fact required
to be stated therein or necessary to make the statements therein not
misleading or that, as of its date, the Prospectus (or, as of its date, any
further amendment or supplement thereto made by the Company prior to such
Time of Delivery) contained, or, as of such Time of Delivery, the
Prospectus or any amendment or supplement thereto contains, an untrue
statement of a material fact or omits to state a material fact necessary to
make
8
<PAGE> 9
the statements therein, in light of the circumstances in which they were
made, not misleading, except that such counsel need make no comment with
respect to the financial statements or other financial data included in the
Registration Statement or in the Prospectus or any further amendment or
supplement thereto.
(d) J. Rufus Wallingford, Senior Vice President and General Counsel of
the Company, shall have furnished to you his written opinion, dated such
Time of Delivery, in form and substance satisfactory to you, to the effect
that:
(i) The Company and each Principal Subsidiary has been duly
qualified as a foreign corporation for the transaction of business and
is in good standing under the laws of each other jurisdiction in which
it owns or leases properties, or conducts any business, so as to require
such qualification, or is subject to no material liability or disability
by reason of failure to be so qualified or in good standing in any such
jurisdiction;
(ii) Each Principal Subsidiary has been duly incorporated and is an
existing corporation in good standing under the laws of its jurisdiction
of incorporation; and all of the issued shares of capital stock of each
such subsidiary have been duly and validly authorized and issued, are
fully paid and non-assessable, and are owned directly or indirectly by
the Company, free and clear of all liens, encumbrances, equities or
other adverse claims;
(iii) All of the issued shares of capital stock of the Company and
Rights (excluding the Shares and the Rights associated therewith) have
been duly and validly authorized and issued and are fully paid and
non-assessable;
(iv) To the best of such counsel's knowledge, there are no legal or
governmental proceedings pending to which the Company or any of its
subsidiaries is a party or of which any property of the Company or any
of its subsidiaries is the subject that would be required to be
disclosed in the Prospectus and are not so disclosed;
(v) The issue and sale of the Shares being delivered at such Time
of Delivery by the Company and the compliance by the Company with all of
the provisions of this Agreement and the International Underwriting
Agreement will not result in a breach or violation of any of the terms
or provisions of, or constitute a default under, any indenture,
mortgage, deed of trust, loan agreement or other agreement or instrument
known to such counsel to which the Company or any of its subsidiaries is
a party or by which the Company or any of its subsidiaries is bound or
to which any of the property or assets of the Company or any of its
subsidiaries is subject, nor will such action result in any violation of
the provisions of the charter or by-laws of the Company or any of its
subsidiaries;
(vi) He does not know of any contracts or other documents of a
character required to be filed as an exhibit to the Registration
Statement or required to be incorporated by reference into the
Prospectus or required to be described in the Registration Statement or
the Prospectus which are not filed or incorporated by reference or
described as required; and
(vii) The documents incorporated by reference in the Prospectus or
any further amendment or supplement thereto made by the Company prior to
such Time of Delivery (other than the financial statements or other
financial data included therein, as to which such counsel need express
no opinion), when they became effective or were filed with the
Commission, as the case may be, complied as to form in all material
respects with the requirements of the Act or the Exchange Act, as
applicable, and the rules and regulations of the Commission thereunder;
and he has no reason to believe that any of such documents, when such
documents became effective or were so filed, as the case may be,
contained, in the case of a registration statement which became
effective under the Act, an untrue statement of a material fact, or
omitted to state a material fact required to be stated therein or
necessary to make the statements therein not misleading, or, in the case
of other documents which were filed under the Exchange Act with the
Commission, an untrue statement of a material fact or omitted to state a
material fact necessary
9
<PAGE> 10
in order to make the statements therein, in the light of the
circumstances under which they were made when such documents were so
filed, not misleading.
Further, such counsel shall state that, although he is not passing
upon, and does not assume any responsibility for the accuracy, completeness
or fairness of, any portion of the Registration Statement and the
Prospectus, as amended or supplemented, and he has not checked the accuracy
or completeness of, or otherwise verified any information, including
statistical information, contained in the Registration Statement and
Prospectus, as amended or supplemented, he advises that, on the basis of
the foregoing, no facts have come to his attention that caused him to
believe that, as of the effective date of the Registration Statement, the
Registration Statement contained an untrue statement of a material fact or
omitted to state a material fact required to be stated therein or necessary
to make the statements therein not misleading or that, as of its date, the
Prospectus (or, as of its date, any further amendment or supplement thereto
made by the Company prior to such Time of Delivery) contained, or, as of
such Time of Delivery, the Prospectus or any amendment or supplement
thereto contains, an untrue statement of a material fact or omits to state
a material fact necessary to make the statements therein, in light of the
circumstances in which they were made, not misleading, except that he need
make no comment with respect to the financial statements or other financial
data included in the Registration Statement or in the Prospectus or any
further amendment or supplement thereto.
(e) On the date of this Agreement and also at each Time of Delivery,
Arthur Andersen & Co. shall have furnished to you a letter or letters,
dated the respective date of delivery thereof, in form and substance
satisfactory to you, to the effect set forth in Annex I hereto;
(f) (i) Neither the Company nor any of its subsidiaries shall have
sustained since the date of the latest audited financial statements
included or incorporated by reference in the Prospectus any loss or
interference with its business from fire, explosion, flood or other
calamity, whether or not covered by insurance, or from any labor dispute or
court or governmental action, order or decree, otherwise than as set forth
or contemplated in the Prospectus, and (ii) since the respective dates as
of which information is given in the Prospectus there shall not have been
any change in the capital stock or long-term debt of the Company or any of
its subsidiaries or any change, or any development involving a prospective
change, in or affecting the Company's management or the financial position
or results of operations of the Company and its subsidiaries, otherwise
than as set forth or contemplated in the Prospectus, the effect of which,
in any such case described in Clause (i) or (ii), is in your judgment so
material and adverse as to make it impracticable or inadvisable to proceed
with the public offering or the delivery of the Shares being delivered at
such Time of Delivery on the terms and in the manner contemplated in the
Prospectus;
(g) On or after the date hereof (i) no downgrading shall have occurred
in the rating accorded the Company's debt securities by any "nationally
recognized statistical rating organization," as that term is defined by the
Commission for purposes of Rule 436(g) (2) under the Act and (ii) no such
organization shall have publicly announced that it has under surveillance
or review, with possible negative implications, its rating of any of the
Company's debt securities;
(h) On or after the date hereof there shall not have occurred any of
the following: (i) a suspension or material limitation in trading in
securities generally on the New York Stock Exchange; (ii) a general
moratorium on commercial banking activities in New York declared by either
Federal or New York State authorities; or (iii) the outbreak or escalation
of hostilities involving the United States or the declaration by the United
States of a national emergency or war if the effect of any such event
specified in this Clause (iii) in your judgment makes it impracticable or
inadvisable to proceed with the public offering or the delivery of the
Shares being delivered at such Time of Delivery on the terms and in the
manner contemplated in the Prospectus;
(i) The Shares to be sold by the Company at such Time of Delivery
shall have been duly listed, subject to notice of issuance, on the New York
Stock Exchange; and
10
<PAGE> 11
(j) The Company shall have furnished or caused to be furnished to you
at such Time of Delivery certificates of officers of the Company
satisfactory to you as to the accuracy of the representations and
warranties of the Company herein at and as of such Time of Delivery, as to
the performance by the Company of all of their respective obligations
hereunder to be performed at or prior to such Time of Delivery, and as to
such other matters as you may reasonably request, and the Company shall
have furnished or caused to be furnished certificates as to the matters set
forth in subsections (a) and (f) of this Section, and as to such other
matters as you may reasonably request.
8. (a) The Company will indemnify and hold harmless each Underwriter
against any losses, claims, damages or liabilities, joint or several, to which
such Underwriter may become subject, under the Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon an untrue statement or alleged untrue statement of a
material fact contained in any Preliminary Prospectus, the Registration
Statement or the Prospectus, or any amendment or supplement thereto, or arise
out of or are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, and will reimburse each Underwriter for any legal or
other expenses reasonably incurred by such Underwriter in connection with
investigating or defending any such action or claim as such expenses are
incurred; provided, however, that the Company shall not be liable in any such
case to the extent that any such loss, claim, damage or liability arises out of
or is based upon an untrue statement or alleged untrue statement or omission or
alleged omission made in any Preliminary Prospectus, the Registration Statement
or the Prospectus or any such amendment or supplement in reliance upon and in
conformity with written information furnished to the Company by any Underwriter
through you expressly for use therein, and provided, further, that the Company
shall not be liable to any Underwriter under the indemnity agreement in this
subsection (a) with respect to any misstatement or omission contained in any
Preliminary Prospectus that was identified in writing prior to the date hereof
to the extent that such loss, claim, damage or liability of such Underwriter
results from the fact that such Underwriter sold Shares to a person as to whom
it shall be established there was not sent or given, at or prior to the written
confirmation of such sale, a copy of the Prospectus, as then amended or
supplemented, if the Company has previously furnished copies thereof in
sufficient quantity to such Underwriter and if such Prospectus (excluding
documents incorporated by reference) corrected such misstatement or omission.
(b) Each Underwriter will indemnify and hold harmless the Company against
any losses, claims, damages or liabilities to which the Company may become
subject, under the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon an
untrue statement or alleged untrue statement of a material fact contained in any
Preliminary Prospectus, the Registration Statement or the Prospectus, or any
amendment or supplement thereto, or arise out of or are based upon the omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, in each case
to the extent, but only to the extent, that such untrue statement or alleged
untrue statement or omission or alleged omission was made in any Preliminary
Prospectus, the Registration Statement or the Prospectus or any such amendment
or supplement in reliance upon and in conformity with written information
furnished to the Company by such Underwriter through you expressly for use
therein; and will reimburse the Company for any legal or other expenses
reasonably incurred by the Company in connection with investigating or defending
any such action or claim as such expenses are incurred.
(c) Promptly after receipt by an indemnified party under subsection (a) or
(b) above of notice of the commencement of any action, such indemnified party
shall, if a claim in respect thereof is to be made against an indemnifying party
under such subsection, notify the indemnifying party in writing of the
commencement thereof; but the omission so to notify the indemnifying party shall
not relieve it from any liability which it may have to any indemnified party
otherwise than under such subsection. In case any such action shall be brought
against any indemnified party and it shall notify the indemnifying party of the
commencement thereof, the indemnifying party shall be entitled to participate
therein and, to the extent that it shall wish, jointly with any other
indemnifying party similarly notified, to assume the defense thereof, with
counsel satisfactory to such indemnified party (which shall not, except with the
consent of
11
<PAGE> 12
the indemnified party, be counsel to the indemnifying party), and, after notice
from the indemnifying party to such indemnified party of its election so to
assume the defense thereof, the indemnifying party shall not be liable to such
indemnified party under such subsection for any legal expenses of other counsel
or any other expenses, in each case subsequently incurred by such indemnified
party, in connection with the defense thereof other than reasonable costs of
investigation. In no event shall the indemnifying party be liable for the fees
and expenses of more than one counsel for all indemnified parties in connection
with any one action or separate but similar or related actions in the same
jurisdiction arising out of the same general allegations or circumstances. An
indemnifying party shall not be liable for any settlement of any action or claim
effected without its consent, which consent shall not unreasonably be withheld.
(d) If the indemnification provided for in this Section 8 is unavailable to
or insufficient to hold harmless an indemnified party under subsection (a) or
(b) above in respect of any losses, claims, damages or liabilities (or actions
in respect thereof) referred to therein, then each indemnifying party shall
contribute to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages or liabilities (or actions in respect thereof)
in such proportion as is appropriate to reflect the relative benefits received
by the Company on the one hand and the Underwriters on the other from the
offering of the Shares. If, however, the allocation provided by the immediately
preceding sentence is not permitted by applicable law or if the indemnified
party failed to give the notice required under subsection (c) above, then each
indemnifying party shall contribute to such amount paid or payable by such
indemnified party in such proportion as is appropriate to reflect not only such
relative benefits but also the relative fault of the Company on the one hand and
the Underwriters on the other in connection with the statements or omissions
which resulted in such losses, claims, damages or liabilities (or actions in
respect thereof), as well as any other relevant equitable considerations. The
relative benefits received by the Company on the one hand and the Underwriters
on the other shall be deemed to be in the same proportion as the total net
proceeds from the offering of the Shares purchased under this Agreement (before
deducting expenses) received by the Company bear to the total underwriting
discounts and commissions received by the Underwriters with respect to the
Shares purchased under this Agreement, in each case as set forth in the table on
the cover page of the Prospectus. The relative fault shall be determined by
reference to, among other things, whether the untrue or alleged untrue statement
of a material fact or the omission or alleged omission to state a material fact
relates to information supplied by the Company on the one hand or the
Underwriters on the other and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The Company and the Underwriters agree that it would not be just and equitable
if contributions pursuant to this subsection (d) were determined by pro rata
allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation which does not take account of the
equitable considerations referred to above in this subsection (d). The amount
paid or payable by an indemnified party as a result of the losses, claims,
damages or liabilities (or actions in respect thereof) referred to above in this
subsection (d) shall be deemed to include any legal or other expenses reasonably
incurred by such indemnified party in connection with investigating or defending
any such action or claim. Notwithstanding the provisions of this subsection (d),
no Underwriter shall be required to contribute any amount in excess of the
amount by which the total price at which the Shares underwritten by it and
distributed to the public were offered to the public exceeds the amount of any
damages which such Underwriter has otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the meaning of Section 11
(f) of the Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The Underwriters' obligations in
this subsection (d) to contribute are several in proportion to their respective
underwriting obligations and not joint.
(e) The obligations of the Company under this Section 8 shall be in
addition to any liability which the Company may otherwise have and shall extend,
upon the same terms and conditions, to each person, if any, who controls any
Underwriter within the meaning of the Act; and the obligations of the
Underwriters under this Section 8 shall be in addition to any liability which
the respective Underwriters
12
<PAGE> 13
may otherwise have and shall extend, upon the same terms and conditions, to each
officer and director of the Company and to each person, if any, who controls the
Company within the meaning of the Act.
9. (a) If any Underwriter shall default in its obligation to purchase the
Shares which it has agreed to purchase hereunder at a Time of Delivery, you may
in your discretion arrange for you or another party or other parties to purchase
such Shares on the terms contained herein. If within thirty-six hours after such
default by any Underwriter you do not arrange for the purchase of such Shares,
then the Company shall be entitled to a further period of thirty-six hours
within which to procure another party or other parties satisfactory to you to
purchase such Shares on such terms. In the event that, within the respective
prescribed periods, you notify the Company that you have so arranged for the
purchase of such Shares, or the Company notifies you that it has so arranged for
the purchase of such Shares, you or the Company shall have the right to postpone
such Time of Delivery for a period of not more than seven days, in order to
effect whatever changes may thereby be made necessary in the Registration
Statement or the Prospectus, or in any other documents or arrangements, and the
Company agrees to file promptly any amendments to the Registration Statement or
the Prospectus which in your opinion may thereby be made necessary. The term
"Underwriter" as used in this Agreement shall include any person substituted
under this Section with like effect as if such person had originally been a
party to this Agreement with respect to such Shares.
(b) If, after giving effect to any arrangements for the purchase of the
Shares of a defaulting Underwriter or Underwriters by you and the Company as
provided in subsection (a) above, the aggregate number of such Shares which
remains unpurchased does not exceed one-eleventh of the aggregate number of all
the Shares to be purchased at such Time of Delivery, then the Company shall have
the right to require each non-defaulting Underwriter to purchase the number of
Shares which such Underwriter agreed to purchase hereunder at such Time of
Delivery and, in addition, to require each non-defaulting Underwriter to
purchase its pro rata share (based on the number of Shares which such
Underwriter agreed to purchase hereunder) of the Shares of such defaulting
Underwriter or Underwriters for which such arrangements have not been made; but
nothing herein shall relieve a defaulting Underwriter from liability for its
default.
(c) If, after giving effect to any arrangements for the purchase of the
Shares of a defaulting Underwriter or Underwriters by you and the Company as
provided in subsection (a) above, the aggregate number of such Shares which
remains unpurchased exceeds one-eleventh of the aggregate number of all the
Shares to be purchased at such Time of Delivery, or if the Company shall not
exercise the right described in subsection (b) above to require non-defaulting
Underwriters to purchase Shares of a defaulting Underwriter or Underwriters,
then this Agreement (or, with respect to the Second Time of Delivery, the
obligations of the Underwriters to purchase and of the Company to sell the
Optional Shares) shall thereupon terminate, without liability on the part of any
non-defaulting Underwriter or the Company, except for the expenses to be borne
by the Company and the Underwriters as provided in Section 6 hereof and the
indemnity and contribution agreements in Section 8 hereof; but nothing herein
shall relieve a defaulting Underwriter from liability for its default.
10. The respective indemnities, agreements, representations, warranties and
other statements of the Company and the several Underwriters, as set forth in
this Agreement or made by or on behalf of them, respectively, pursuant to this
Agreement, shall remain in full force and effect, regardless of any
investigation (or any statement as to the results thereof) made by or on behalf
of any Underwriter or any controlling person of any Underwriter, or the Company,
or any officer or director or controlling person of the Company, and shall
survive delivery of and payment for the Shares.
11. If this Agreement shall be terminated pursuant to Section 9 hereof,
then the Company shall not be under any liability to any Underwriter except as
provided in Section 6 and Section 8 hereof; but, if for any other reason, any
Shares are not delivered by or on behalf of the Company as provided herein, the
Company will reimburse the Underwriters through you for all out-of-pocket
expenses approved in writing by you, including fees and disbursements of
counsel, reasonably incurred by the Underwriters in making preparations for the
purchase, sale and delivery of the Shares not so delivered, but the Company
shall
13
<PAGE> 14
then be under no further liability to any Underwriter in respect of the Shares
not so delivered except as provided in Section 6 and Section 8 hereof.
12. In all dealings hereunder, you shall act on behalf of each of the
Underwriters, and the parties hereto shall be entitled to act and rely upon any
statement, request, notice or agreement on behalf of any Underwriter made or
given by you jointly or by Goldman, Sachs & Co. on behalf of you as the
representatives of the Underwriters.
All statements, requests, notices and agreements hereunder shall be in
writing, and if to the Underwriters shall be delivered or sent by mail to you as
the representatives in care of Goldman, Sachs & Co., at 85 Broad Street, New
York, N.Y. 10004, Attention: Registration Department; and if to the Company
shall be delivered or sent by mail or facsimile transmission to it at 757 N.
Eldridge, Houston, Texas 77079, Attention: Henry L. Hirvela (fax no. (713)
870-7844; confirm (713) 870-7422); provided, however, that any notice to an
Underwriter pursuant to Section 8(c) hereof shall be delivered or sent by mail,
telex or facsimile transmission to such Underwriter at its address set forth in
its Underwriters' Questionnaire or telex constituting such Questionnaire, which
address will be supplied to the Company by you upon request. Any such
statements, requests, notices or agreements shall take effect upon receipt
thereof.
13. This Agreement shall be binding upon, and inure solely to the benefit
of, the Underwriters and the Company and, to the extent provided in Sections 8
and 10 hereof, the officers and directors of the Company and each person who
controls the Company or any Underwriter, and their respective heirs, executors,
administrators, successors and assigns, and no other person shall acquire or
have any right under or by virtue of this Agreement. No purchaser of any of the
Shares from any Underwriter shall be deemed a successor or assign by reason
merely of such purchase.
14. Time shall be of the essence of this Agreement. As used herein, the
term "business day" shall mean any day when the Commission's office in
Washington, D.C. is open for business.
15. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK.
16. This Agreement may be executed by any one or more of the parties hereto
in any number of counterparts, each of which shall be deemed to be an original,
but all such counterparts shall together constitute one and the same instrument.
17. The Company and the Underwriters acknowledge that Fulbright & Jaworski
L.L.P., which will be acting as special counsel to the Company in connection
with the offer and sale of the Shares, also acts as counsel from time to time to
one or more of the Underwriters in connection with unrelated matters. The
Company and the Underwriters consent to Fulbright & Jaworski L.L.P. so acting as
special counsel to the Company. The Company and the Underwriters also
acknowledge that Vinson & Elkins L.L.P., which is acting as counsel to the
Underwriters in connection with the offer and sale of the Shares, also acts as
counsel from time to time to the Company and certain of its affiliates in
connection with unrelated matters. The Company and the Underwriters consent to
Vinson & Elkins L.L.P. so acting as counsel to the Underwriters.
14
<PAGE> 15
If the foregoing is in accordance with your understanding, please sign and
return to us six counterparts hereof, and upon the acceptance hereof by you, on
behalf of each of the Underwriters, this letter and such acceptance hereof shall
constitute a binding agreement among each of the Underwriters and the Company.
It is understood that your acceptance of this letter on behalf of each of the
Underwriters is pursuant to the authority set forth in a form of Agreement among
Underwriters (U.S. Version) the form of which shall be submitted to the Company
for examination, upon request, but without warranty on your part as to the
authority of the signers thereof.
Very truly yours,
BROWNING-FERRIS INDUSTRIES, INC.
By: /s/ HENRY L. HIRVELA
Henry L. Hirvela
Vice President and Treasurer
Accepted as of the date hereof at New
York,
New York:
Goldman, Sachs & Co.
CS First Boston Corporation
Smith Barney Shearson Inc.
As Representatives of the several
Underwriters
named in Schedule I hereto
By: Goldman, Sachs & Co.
/S/ GOLDMAN, SACHS & CO.
(Goldman, Sachs & Co.)
15
<PAGE> 16
SCHEDULE I
<TABLE>
<CAPTION>
NUMBER OF
OPTIONAL
SHARES TO
TOTAL BE
NUMBER OF PURCHASED
FIRM IF
SHARES TO MAXIMUM
BE OPTION
UNDERWRITER PURCHASED EXERCISED
- ----------------------------------------------------------- ----------- ---------
<S> <C> <C>
Goldman, Sachs & Co. ...................................... 1,710,000 256,500
CS First Boston Corporation................................ 1,710,000 256,500
Smith Barney Shearson Inc. ................................ 1,710,000 256,500
Advest, Inc. .............................................. 125,000 18,750
Allen & Company Incorporated............................... 125,000 18,750
Bear, Stearns & Co. Inc. .................................. 185,000 27,750
Alex. Brown & Sons Incorporated............................ 185,000 27,750
The Chicago Corporation.................................... 65,000 9,750
Cleary, Gull, Reiland, & McDevitt Inc. .................... 65,000 9,750
Dain Bosworth Incorporated................................. 125,000 18,750
Dean Witter Reynolds Inc. ................................. 185,000 27,750
Dillon, Read & Co. Inc. ................................... 185,000 27,750
Donaldson, Lufkin & Jenrette Securities Corporation........ 185,000 27,750
A.G. Edwards & Sons, Inc. ................................. 185,000 27,750
First Analysis Securities Corporation...................... 65,000 9,750
First Southwest Company.................................... 65,000 9,750
Janney Montgomery Scott Inc. .............................. 65,000 9,750
Edward D. Jones & Co. ..................................... 125,000 18,750
Kemper Securities, Inc. ................................... 185,000 27,750
Kidder, Peabody & Co. Incorporated......................... 185,000 27,750
C.J. Lawrence/Deutsche Bank Securities Corporation......... 185,000 27,750
Legg Mason Wood Walker, Incorporated....................... 125,000 18,750
Lehman Brothers Inc. ...................................... 185,000 27,750
Mabon Securities Corp. .................................... 65,000 9,750
Merrill Lynch, Pierce, Fenner & Smith Incorporated......... 185,000 27,750
Moran & Associates, Inc. Securities Brokerage.............. 65,000 9,750
J.P. Morgan Securities Inc. ............................... 185,000 27,750
Morgan, Keegan & Company, Incorporated..................... 125,000 18,750
Morgan Stanley & Co. Incorporated.......................... 185,000 27,750
Oppenheimer & Co., Inc. ................................... 185,000 27,750
PaineWebber Incorporated................................... 185,000 27,750
Parker/Hunter Incorporated................................. 65,000 9,750
The Principal/Eppler, Guerin & Turner, Inc. ............... 125,000 18,750
Prudential Securities Incorporated......................... 185,000 27,750
RAS Securities Corp. ...................................... 65,000 9,750
Rauscher Pierce Refsnes, Inc. ............................. 125,000 18,750
Scott & Stringfellow Investment Corporation................ 65,000 9,750
The Seidler Companies Incorporated......................... 65,000 9,750
Southwest Securities, Inc. ................................ 65,000 9,750
Stifel, Nicolaus & Company, Incorporated................... 65,000 9,750
Sutro & Co. Incorporated................................... 125,000 18,750
Williams MacKay Jordan & Co., Incorporated................. 65,000 9,750
----------- ---------
Total....................................... 10,125,000 1,518,750
----------- ---------
----------- ---------
</TABLE>
16
<PAGE> 17
SCHEDULE II
PRINCIPAL SUBSIDIARIES
Azusa Land Reclamation Co., Inc.
BFI Energy Systems of Hempstead, Inc.
BFI International, Inc.
Browning-Ferris, Inc. (Delaware)
Browning-Ferris, Inc. (Maryland)
Browning-Ferris Industries B.V.
Browning-Ferris Industries, Inc. (Mass.)
Browning-Ferris Industries (Italia) S.r.l.
Browning-Ferris Industries Ltd.
Browning-Ferris Industries of California, Inc.
Browning-Ferris Industries of Florida, Inc.
Browning-Ferris Industries of Illinois, Inc.
Browning-Ferris Industries of New York, Inc.
Browning-Ferris Industries of Ohio, Inc.
Browning-Ferris Industries of Pennsylvania, Inc.
Browning-Ferris Industries of South Atlantic, Inc.
Browning-Ferris Industries of Tennessee, Inc.
Browning-Ferris Industries UK Limited
Browning-Ferris Services, Inc.
17
<PAGE> 18
ANNEX I
Pursuant to Section 7(e) of the Underwriting Agreement, the accountants
shall furnish letters to the Underwriters to the effect that:
(i) They are independent certified public accountants with respect to
the Company and its subsidiaries within the meaning of the Act and the
applicable published rules and regulations thereunder;
(ii) In their opinion, the financial statements and schedules audited
by them and included or incorporated by reference in the Registration
Statement or the Prospectus comply as to form in all material respects with
the applicable accounting requirements of the Act or the Exchange Act, as
applicable, and the related published rules and regulations thereunder;
and, if applicable, they have made a review in accordance with standards
established by the American Institute of Certified Public Accountants of
the consolidated interim financial statements, included or incorporated by
reference in the Registration Statement or the Prospectus;
(iii) On the basis of limited procedures, not constituting an audit in
accordance with generally accepted auditing standards, consisting of a
reading of the unaudited financial statements and other information
referred to below, a reading of the latest available interim financial
statements of the Company and its subsidiaries, inspection of the minute
books of the Company and its subsidiaries since the date of the latest
audited financial statements included or incorporated by reference in the
Prospectus, inquiries of officials of the Company and its subsidiaries
responsible for financial and accounting matters and such other inquiries
and procedures as may be specified in such letter, nothing came to their
attention that caused them to believe that:
(A) the unaudited consolidated statements of income, consolidated
balance sheets and consolidated statements of cash flows included or
incorporated by reference in the Company's Quarterly Reports on Form
10-Q incorporated by reference in the Prospectus do not comply as to
form in all material respects with the applicable accounting
requirements of the Exchange Act as it applies to Form 10-Q and the
related published rules and regulations thereunder or are not in
conformity with generally accepted accounting principles applied on a
basis substantially consistent with the basis for the audited
consolidated statements of income, consolidated balance sheets and
consolidated statements of cash flows included or incorporated by
reference in the Company's Annual Report on Form 10-K for the most
recent fiscal year;
(B) as of a specified date not more than five days prior to the
date of such letter, there have been any changes in the consolidated
common stock (other than issuances of common stock pursuant to (1) the
Company's Dividend Reinvestment Plan, employee benefit plans or stock
option plans in each case which were in effect on the date of the latest
balance sheet included or incorporated by reference in the Prospectus or
(2) business acquisitions (specifying the number of shares so issued))
or any increase in excess of 5% in the consolidated long-term debt of
the Company and its subsidiaries, or any decreases in consolidated net
assets, in each case as compared with amounts shown in the latest
balance sheet included or incorporated by reference in the Prospectus,
except in each case for changes, increases or decreases which the
Prospectus discloses have occurred or may occur or which are described
in such letter; and
(C) for the period from the date of the latest financial statements
included or incorporated by reference in the Prospectus to the specified
date referred to in Clause (B) there were any decreases in consolidated
revenues or the total or per share amounts of consolidated net income,
in each case as compared with the comparable period of the preceding
year, except in each case for increases or decreases which the
Prospectus discloses have occurred or may occur or which are described
in such letter; and
18
<PAGE> 19
(iv) In addition to the audit referred to in their report(s) included
or incorporated by reference in the Prospectus and the limited procedures,
inspection of minute books, inquiries and other procedures referred to in
paragraph (iii) above, they have carried out certain specified procedures,
not constituting an audit in accordance with generally accepted auditing
standards, with respect to certain amounts, percentages and financial
information specified by the representatives of the Underwriters (the
"Representatives") which are derived from the general accounting records of
the Company and its subsidiaries, which appear in the Prospectus (excluding
documents incorporated by reference) or in Part II of, or in exhibits and
schedules to, the Registration Statement specified by the Representatives
or in documents incorporated by reference in the Prospectus specified by
the Representatives, and have compared certain of such amounts, percentages
and financial information with the accounting records of the Company and
its subsidiaries and have found them to be in agreement.
19
<PAGE> 1
BROWNING-FERRIS INDUSTRIES, INC.
COMMON STOCK
(PAR VALUE $.16 2/3 PER SHARE)
------------------------
UNDERWRITING AGREEMENT
(INTERNATIONAL VERSION)
----------------------------------
March 9, 1994
Goldman Sachs International
CS First Boston Limited
Smith Barney Shearson Inc.
As Representatives of the several Underwriters
named in Schedule I hereto
c/o Goldman Sachs International
Peterborough Court
133 Fleet Street
London EC4A 2BB, England
Dear Sirs:
Browning-Ferris Industries, Inc., a Delaware corporation (the "Company"),
proposes, subject to the terms and conditions stated herein, to issue and sell
to the Underwriters named in Schedule I hereto (the "Underwriters") an aggregate
of 3,375,000 shares (the "Firm Shares") and, at the election of the
Underwriters, up to 506,250 additional shares (the "Optional Shares") of Common
Stock, par value $.16 2/3 per share ("Stock"), of the Company. The Firm Shares
and the Optional Shares which the Underwriters elect to purchase pursuant to
Section 2 hereof are herein collectively called the "Shares."
It is understood and agreed to by all parties that the Company is
concurrently entering into an agreement, a copy of which is attached hereto (the
"U.S. Underwriting Agreement"), providing for the sale by the Company of up to a
total of 11,643,750 shares of Stock (the "U.S. Shares"), including the
overallotment option thereunder, through arrangements with certain underwriters
in the United States (the "U.S. Underwriters"), for whom Goldman, Sachs & Co.,
CS First Boston Corporation and Smith Barney Shearson Inc. are acting as
representatives. Anything herein or therein to the contrary notwithstanding, the
respective closings under this Agreement and the U.S. Underwriting Agreement are
hereby expressly made conditional on each other. The Underwriters hereunder and
the U.S. Underwriters are simultaneously entering into an Agreement between U.S.
and International Underwriting Syndicates (the "Agreement between Syndicates")
which provides, among other things, for the transfer of shares of Stock between
the two syndicates and for consultation by the Lead Managers hereunder with
Goldman, Sachs & Co. prior to exercising the rights of the Underwriters under
Section 7 hereof. Two forms of prospectuses are to be used in connection with
the offering and sale of shares of Stock contemplated by the foregoing, one
relating to the Shares hereunder and the other relating to the U.S. Shares. The
latter form of prospectus will be identical to the former except for certain
substitute pages as included in the supplements thereto as mentioned below.
Except as used in Sections 2, 3, 4, 9 and 11 herein, and except as the context
may otherwise require, references hereinafter to the Shares shall include all
the shares of Stock which may be sold pursuant to either this Agreement or the
U.S. Underwriting Agreement, and references herein to any prospectus whether in
preliminary or final form, and whether as amended or supplemented, shall include
both the U.S. and the international versions thereof.
In addition, this Agreement incorporates by reference certain provisions
from the U.S. Underwriting Agreement (including the related definitions of
terms, which are also used elsewhere herein) and, for purposes of applying the
same, references (whether in these precise words or their equivalent) in the
incorporated provisions to the "Underwriters" shall be to the Underwriters
hereunder, to the "Shares" shall be to the Shares hereunder as just defined, to
"this Agreement" (meaning therein the U.S. Underwriting Agreement) shall be to
this Agreement (except where this Agreement is already referred to
<PAGE> 2
or as the context may otherwise require) and to the representatives of the
Underwriters or to Goldman, Sachs & Co. shall be to the addressees of this
Agreement and to Goldman Sachs International ("GSI"), and, in general, all such
provisions and defined terms shall be applied mutatis mutandis as if the
incorporated provisions were set forth in full herein having regard to their
context in this Agreement as opposed to the U.S. Underwriting Agreement.
1. The Company hereby makes to the Underwriters the same respective
representations, warranties and agreements as are set forth in Section 1 of the
U.S. Underwriting Agreement, which Section is incorporated herein by this
reference.
2. Subject to the terms and conditions herein set forth, (a) the Company
agrees to sell to each of the Underwriters, and each of the Underwriters agrees,
severally and not jointly, to purchase from the Company, at a purchase price per
share of $28.00, the number of Firm Shares set forth opposite the name of such
Underwriter in Schedule I hereto and (b) in the event and to the extent that the
Underwriters shall exercise the election to purchase Optional Shares as provided
below, the Company agrees to sell to each of the Underwriters, and each of the
Underwriters agrees, severally and not jointly, to purchase from the Company, at
the purchase price per share set forth in clause (a) of this Section 2, that
portion of the number of Optional Shares as to which such election shall have
been exercised (to be adjusted by you so as to eliminate fractional shares)
determined by multiplying such number of Optional Shares by a fraction the
numerator of which is the maximum number of Optional Shares which such
Underwriter is entitled to purchase as set forth opposite the name of such
Underwriter in Schedule I hereto and the denominator of which is the maximum
number of the Optional Shares which all of the Underwriters are entitled to
purchase hereunder.
The Company hereby grants to the Underwriters the right to purchase at
their election up to 506,250 Optional Shares, at the purchase price per share
set forth in the paragraph above, for the sole purpose of covering
overallotments in the sale of the Firm Shares. Any such election to purchase
Optional Shares may be exercised only by written notice from you to the Company,
given within a period of 30 calendar days after the date of this Agreement,
setting forth the aggregate number of Optional Shares to be purchased and the
date on which such Optional Shares are to be delivered, as determined by you but
in no event earlier than the First Time of Delivery (as defined in Section 4
hereof) or, unless you and the Company otherwise agree in writing, earlier than
two or later than ten business days after the date of such notice.
3. Upon the authorization by GSI of the release of the Firm Shares, the
several Underwriters propose to offer the Firm Shares for sale upon the terms
and conditions set forth in the Prospectus and in the forms of Agreement among
Underwriters (International Version) and Selling Agreements, which have been
previously submitted to the Company by you. Each Underwriter hereby makes to and
with the Company the representations and agreements of such Underwriter as a
member of the selling group contained in Sections 3(d) and 3(e) of the form of
Selling Agreements.
4. Certificates in definitive form for the Shares to be purchased by each
Underwriter hereunder, and in such denominations and registered in such names as
GSI may request upon at least forty-eight hours' prior notice to the Company,
shall be delivered by or on behalf of the Company to you for the account of such
Underwriter, against payment by such Underwriter or on its behalf of the
purchase price therefor by certified or official bank check or checks, payable
to the order of the Company, in New York Clearing House funds, all at the office
of Goldman, Sachs & Co., 85 Broad Street, New York, New York 10004. The time and
date of such delivery and payment shall be, with respect to the Firm Shares,
9:30 a.m., New York time, on March 16, 1994 or at such other time and date as
you and the Company may agree upon in writing and, with respect to the Optional
Shares, 9:30 a.m., New York time, on the date specified by you in the written
notice given by you of the Underwriters' election to purchase such Optional
Shares, or at such other time and date as you and the Company may agree upon in
writing. Such time and date for delivery of the Firm Shares is herein called the
"First Time of Delivery," such time and date for delivery of the Optional
Shares, if not the First Time of Delivery, is herein called the "Second Time of
Delivery," and each such time and date of delivery is herein called a "Time of
Delivery." Such certificates will be made
2
<PAGE> 3
available for checking and packaging at least twenty four hours prior to each
Time of Delivery at the office of Goldman, Sachs & Co., 85 Broad Street, New
York, New York 10004.
5. The Company hereby makes with the Underwriters the same agreements as
are set forth in Section 5 of the U.S. Underwriting Agreement, which Section is
incorporated herein by this reference.
6. The Company and the Underwriters hereby agree with respect to certain
expenses on the same terms as are set forth in Section 6 of the U.S.
Underwriting Agreement, which Section is incorporated herein by this reference.
7. The obligations of the Underwriters hereunder, as to the Shares to be
delivered at each Time of Delivery, shall be subject, in their discretion, to
the condition that all representations and warranties and other statements of
the Company herein are, at and as of such Time of Delivery, true and correct,
the condition that the Company shall have performed all of its obligations
hereunder theretofore to be performed, and additional conditions identical to
those set forth in Section 7 of the U.S. Underwriting Agreement, which Section
is incorporated herein by this reference.
8. (a) The Company will indemnify and hold harmless each Underwriter
against any losses, claims, damages or liabilities, joint or several, to which
such Underwriter may become subject, under the Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon an untrue statement or alleged untrue statement of a
material fact contained in any Preliminary Prospectus, the Registration
Statement or the Prospectus, or any amendment or supplement thereto, or arise
out of or are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, and will reimburse each Underwriter for any legal or
other expenses reasonably incurred by such Underwriter in connection with
investigating or defending any such action or claim as such expenses are
incurred; provided, however, that the Company shall not be liable in any such
case to the extent that any such loss, claim, damage or liability arises out of
or is based upon an untrue statement or alleged untrue statement or omission or
alleged omission made in any Preliminary Prospectus, the Registration Statement
or the Prospectus or any such amendment or supplement in reliance upon and in
conformity with written information furnished to the Company by any Underwriter
through GSI expressly for use therein, and provided, further, that the Company
shall not be liable to any Underwriter under the indemnity agreement in this
subsection (a) with respect to any misstatement or omission contained in any
Preliminary Prospectus that was identified in writing prior to the date hereof
to the extent that such loss, claim, damage or liability of such Underwriter
results from the fact that such Underwriter sold Shares to a person as to whom
it shall be established there was not sent or given, at or prior to the written
confirmation of such sale, a copy of the Prospectus, as then amended or
supplemented, if the Company has previously furnished copies thereof in
sufficient quantity to such Underwriter and if such Prospectus (excluding
documents incorporated by reference) corrected such misstatement or omission.
(b) Each Underwriter will indemnify and hold harmless the Company against
any losses, claims, damages or liabilities to which the Company may become
subject, under the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon an
untrue statement or alleged untrue statement of a material fact contained in any
Preliminary Prospectus, the Registration Statement or the Prospectus, or any
amendment or supplement thereto, or arise out of or are based upon the omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, in each case
to the extent, but only to the extent, that such untrue statement or alleged
untrue statement or omission or alleged omission was made in any Preliminary
Prospectus, the Registration Statement or the Prospectus or any such amendment
or supplement in reliance upon and in conformity with written information
furnished to the Company by such Underwriter through GSI expressly for use
therein; and will reimburse the Company for any legal or other expenses
reasonably incurred by the Company in connection with investigating or defending
any such action or claim as such expenses are incurred.
3
<PAGE> 4
(c) Promptly after receipt by an indemnified party under subsection (a) or
(b) above of notice of the commencement of any action, such indemnified party
shall, if a claim in respect thereof is to be made against an indemnifying party
under such subsection, notify the indemnifying party in writing of the
commencement thereof; but the omission so to notify the indemnifying party shall
not relieve it from any liability which it may have to any indemnified party
otherwise than under such subsection. In case any such action shall be brought
against any indemnified party and it shall notify the indemnifying party of the
commencement thereof, the indemnifying party shall be entitled to participate
therein and, to the extent that it shall wish, jointly with any other
indemnifying party similarly notified, to assume the defense thereof, with
counsel satisfactory to such indemnified party (who shall not, except with the
consent of the indemnified party, be counsel to the indemnifying party), and,
after notice from the indemnifying party to such indemnified party of its
election so to assume the defense thereof, the indemnifying party shall not be
liable to such indemnified party under such subsection for any legal expenses of
other counsel or any other expenses, in each case subsequently incurred by such
indemnified party, in connection with the defense thereof other than reasonable
costs of investigation. In no event shall the indemnifying party be liable for
the fees and expenses of more than one counsel for all indemnified parties in
connection with any one action or separate but similar or related actions in the
same jurisdiction arising out of the same general allegations or circumstances.
An indemnifying party shall not be liable for any settlement of any action or
claim effected without its consent, which consent shall not unreasonably be
withheld.
(d) If the indemnification provided for in this Section 8 is unavailable to
or insufficient to hold harmless an indemnified party under subsection (a) or
(b) above in respect of any losses, claims, damages or liabilities (or actions
in respect thereof) referred to therein, then each indemnifying party shall
contribute to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages or liabilities (or actions in respect thereof)
in such proportion as is appropriate to reflect the relative benefits received
by the Company on the one hand and the Underwriters on the other from the
offering of the Shares. If, however, the allocation provided by the immediately
preceding sentence is not permitted by applicable law or if the indemnified
party failed to give the notice required under subsection (c) above, then each
indemnifying party shall contribute to such amount paid or payable by such
indemnified party in such proportion as is appropriate to reflect not only such
relative benefits but also the relative fault of the Company on the one hand and
the Underwriters on the other in connection with the statements or omissions
which resulted in such losses, claims, damages or liabilities (or actions in
respect thereof), as well as any other relevant equitable considerations. The
relative benefits received by the Company on the one hand and the Underwriters
on the other shall be deemed to be in the same proportion as the total net
proceeds from the offering of the Shares purchased under this Agreement (before
deducting expenses) received by the Company bear to the total underwriting
discounts and commissions received by the Underwriters with respect to the
Shares purchased under this Agreement, in each case as set forth in the table on
the cover page of the Prospectus. The relative fault shall be determined by
reference to, among other things, whether the untrue or alleged untrue statement
of a material fact or the omission or alleged omission to state a material fact
relates to information supplied by the Company on the one hand or the
Underwriters on the other and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The Company and the Underwriters agree that it would not be just and equitable
if contributions pursuant to this subsection (d) were determined by pro rata
allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation which does not take account of the
equitable considerations referred to above in this subsection (d). The amount
paid or payable by an indemnified party as a result of the losses, claims,
damages or liabilities (or actions in respect thereof) referred to above in this
subsection (d) shall be deemed to include any legal or other expenses reasonably
incurred by such indemnified party in connection with investigating or defending
any such action or claim. Notwithstanding the provisions of this subsection (d),
no Underwriter shall be required to contribute any amount in excess of the
amount by which the total price at which the Shares underwritten by it and
distributed to the public were offered to the public exceeds the amount of any
damages which such Underwriter has otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the
4
<PAGE> 5
meaning of Section 11 (f) of the Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation. The
Underwriters' obligations in this subsection (d) to contribute are several in
proportion to their respective underwriting obligations and not joint.
(e) The obligations of the Company under this Section 8 shall be in
addition to any liability which the Company may otherwise have and shall extend,
upon the same terms and conditions, to each person, if any, who controls any
Underwriter within the meaning of the Act; and the obligations of the
Underwriters under this Section 8 shall be in addition to any liability which
the respective Underwriters may otherwise have and shall extend, upon the same
terms and conditions, to each officer and director of the Company and to each
person, if any, who controls the Company within the meaning of the Act.
9. (a) If any Underwriter shall default in its obligation to purchase the
Shares which it has agreed to purchase hereunder at a Time of Delivery, you may
in your discretion arrange for you or another party or other parties to purchase
such Shares on the terms contained herein. If within thirty-six hours after such
default by any Underwriter you do not arrange for the purchase of such Shares,
then the Company shall be entitled to a further period of thirty-six hours
within which to procure another party or other parties satisfactory to you to
purchase such Shares on such terms. In the event that, within the respective
prescribed periods, you notify the Company that you have so arranged for the
purchase of such Shares, or the Company notifies you that it has so arranged for
the purchase of such Shares, you or the Company shall have the right to postpone
such Time of Delivery for a period of not more than seven days, in order to
effect whatever changes may thereby be made necessary in the Registration
Statement or the Prospectus, or in any other documents or arrangements, and the
Company agrees to file promptly any amendments to the Registration Statement or
the Prospectus which in your opinion may thereby be made necessary. The term
"Underwriter" as used in this Agreement shall include any person substituted
under this Section with like effect as if such person had originally been a
party to this Agreement with respect to such Shares.
(b) If, after giving effect to any arrangements for the purchase of the
Shares of a defaulting Underwriter or Underwriters by you and the Company as
provided in subsection (a) above, the aggregate number of such Shares which
remains unpurchased does not exceed one-eleventh of the aggregate number of all
the Shares to be purchased at such Time of Delivery, then the Company shall have
the right to require each non-defaulting Underwriter to purchase the number of
shares which such Underwriter agreed to purchase hereunder at such Time of
Delivery and, in addition, to require each non-defaulting Underwriter to
purchase its pro rata share (based on the number of Shares which such
Underwriter agreed to purchase hereunder) of the Shares of such defaulting
Underwriter or Underwriters for which such arrangements have not been made; but
nothing herein shall relieve a defaulting Underwriter from liability for its
default.
(c) If, after giving effect to any arrangements for the purchase of the
Shares of a defaulting Underwriter or Underwriters by you and the Company as
provided in subsection (a) above, the aggregate number of such Shares which
remains unpurchased exceeds one-eleventh of the aggregate number of all the
Shares to be purchased at such Time of Delivery, or if the Company shall not
exercise the right described in subsection (b) above to require non-defaulting
Underwriters to purchase Shares of a defaulting Underwriter or Underwriters,
then this Agreement (or, with respect to the Second Time of Delivery, the
obligations of the Underwriters to purchase and of the Company to sell the
Optional Shares) shall thereupon terminate, without liability on the part of any
non-defaulting Underwriter or the Company, except for the expenses to be borne
by the Company and the Underwriters as provided in Section 6 hereof and the
indemnity and contribution agreements in Section 8 hereof; but nothing herein
shall relieve a defaulting Underwriter from liability for its default.
10. The respective indemnities, agreements, representations, warranties and
other statements of the Company and the several Underwriters, as set forth in
this Agreement or made by or on behalf of them, respectively, pursuant to this
Agreement, shall remain in full force and effect, regardless of any
investigation (or any statement as to the results thereof) made by or on behalf
of any Underwriter or any
5
<PAGE> 6
controlling person of any Underwriter, or the Company, or any officer or
director or controlling person of the Company, and shall survive delivery of and
payment for the Shares.
11. If this Agreement shall be terminated pursuant to Section 9 hereof,
then the Company shall not be under any liability to any Underwriter except as
provided in Section 6 and Section 8 hereof; but, if for any other reason, any
Shares are not delivered by or on behalf of the Company as provided herein, the
Company will reimburse the Underwriters through GSI for all out-of-pocket
expenses approved in writing by GSI, including fees and disbursements of
counsel, reasonably incurred by the Underwriters in making preparations for the
purchase, sale and delivery of the Shares not so delivered, but the Company
shall then be under no further liability to any Underwriter in respect of the
Shares not so delivered, except as provided in Section 6 and Section 8 hereof.
12. In all dealings hereunder, you shall act on behalf of each of the
Underwriters, and the parties hereto shall be entitled to act and rely upon any
statement, request, notice or agreement on behalf of any Underwriter made or
given by you jointly or by GSI on behalf of you as the representatives of the
Underwriters.
All statements, requests, notices and agreements hereunder shall be in
writing, and if to the Underwriters shall be delivered or sent by mail, telex or
facsimile transmission to the Underwriters in care of GSI, Peterborough Court,
133 Fleet Street, London EC4A 2BB, England, Attention: Syndicate Department,
Telex No. 94012165, facsimile transmission no. (071) 774-1550; and if to the
Company shall be delivered or sent by mail or facsimile transmission to it at
757 N. Eldridge, Houston, Texas 77079, Attention: Henry L. Hirvela (fax no.
(713) 870-7844; confirm (713) 870-7422); provided, however, that any notice to
an Underwriter pursuant to Section 8(c) hereof shall be delivered or sent by
mail, telex or facsimile transmission to such Underwriter at its address set
forth in its Underwriters' Questionnaire, or telex constituting such
Questionnaire, which address will be supplied to the Company by GSI upon
request. Any such statements, requests, notices or agreements shall take effect
upon receipt thereof.
13. This Agreement shall be binding upon, and inure solely to the benefit
of, the Underwriters and the Company and, to the extent provided in Section 8
and Section 10 hereof, the officers and directors of the Company and each person
who controls the Company or any Underwriter, and their respective heirs,
executors, administrators, successors and assigns, and no other person shall
acquire or have any right under or by virtue of this Agreement. No purchaser of
any of the Shares from any Underwriter shall be deemed a successor or assign by
reason merely of such purchase.
14. Time shall be of the essence of this Agreement.
15. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK, UNITED STATES OF AMERICA.
16. This Agreement may be executed by any one or more of the parties hereto
in any number of counterparts, each of which shall be deemed to be an original,
but all such counterparts shall together constitute one and the same instrument.
17. The Company and the Underwriters acknowledge that Fulbright & Jaworski
L.L.P., which will be acting as special counsel to the Company in connection
with the offer and sale of the Shares, also acts as counsel from time to time to
one or more of the Underwriters in connection with unrelated matters. The
Company and the Underwriters consent to Fulbright & Jaworski L.L.P. so acting as
special counsel to the Company. The Company and the Underwriters also
acknowledge that Vinson & Elkins L.L.P., which is acting as counsel to the
Underwriters in connection with the offer and sale of the Shares, also acts as
counsel from time to time to the Company and certain of its affiliates in
connection with unrelated matters. The Company and the Underwriters consent to
Vinson & Elkins L.L.P. so acting as counsel to the Underwriters.
If the foregoing is in accordance with your understanding, please sign and
return to us six counterparts hereof, and upon the acceptance hereof by you, on
behalf of each of the Underwriters, this letter and such acceptance hereof shall
constitute a binding agreement among each of the Underwriters
6
<PAGE> 7
and the Company. It is understood that your acceptance of this letter on behalf
of each of the Underwriters is pursuant to the authority set forth in a form of
Agreement among Underwriters (International Version), the form of which shall be
furnished to the Company for examination upon request, but without warranty on
your part as to the authority of the signers thereof.
Very truly yours,
BROWNING-FERRIS INDUSTRIES, INC.
By: /s/ HENRY L. HIRVELA
Henry L. Hirvela
Vice President and Treasurer
Accepted as of the date hereof at New
York,
New York:
Goldman Sachs International
CS First Boston Limited
Smith Barney Shearson Inc.
By: Goldman Sachs International
By: /s/ EVE LESSER
(Attorney-in-fact)
On behalf of each of the
Underwriters
7
<PAGE> 8
SCHEDULE I
<TABLE>
<CAPTION>
NUMBER OF
OPTIONAL SHARES
TO BE PURCHASED
TOTAL NUMBER IF MAXIMUM
OF FIRM SHARES OPTION
UNDERWRITER TO BE PURCHASED EXERCISED
- -------------------------------------------------------------- --------------- ---------------
<S> <C> <C>
Goldman Sachs International .................................. 882,000 132,300
CS First Boston Limited....................................... 880,875 132,130
Smith Barney Shearson Inc. ................................... 880,875 132,130
ABN AMRO Bank N.V. ........................................... 73,125 10,969
Cazenove & Co. ............................................... 73,125 10,969
Commerzbank Aktiengesellschaft................................ 73,125 10,969
Credit Lyonnais Securities.................................... 73,125 10,969
Credito Italiano S.A.......................................... 73,125 10,969
Deutsche Bank Aktiengesellschaft.............................. 73,125 10,969
NatWest Securities Limited.................................... 73,125 10,969
Nomura International plc...................................... 73,125 10,969
Societe Generale.............................................. 73,125 10,969
UBS Limited................................................... 73,125 10,969
--------------- ---------------
Total.......................................... 3,375,000 506,250
--------------- ---------------
--------------- ---------------
</TABLE>
8
