As filed with the Securities and Exchange Commission on April 27,
1995.
Registration No. 33-__________
SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
_____________________
FORM S-4
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
______________________
Browning-Ferris Industries, Inc.
(Exact name of registrant as specified in its charter)
Delaware 4953 74-1673682
(State or other jurisdiction (Primary Standard (I.R.S. Employer
of incorporation or organi- Industrial Classi- Identification No.)
zation) fication Code Number)
757 N. Eldridge
Houston, Texas 77079
(713) 870-8100
(Address, including zip code, and telephone number, including
area code, of registrant's principal executive offices)
______________________
GERALD K. BURGER
Vice President and Secretary
Browning-Ferris Industries, Inc.
757 N. Eldridge
Houston, Texas 77079
(713) 870-7820
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
_______________________
Approximate date of commencement of proposed sale to the public:
From time to time after this Registration Statement becomes
effective.
If the securities being registered on this Form are being offered
in connection with the formation of a holding company and there is
compliance with General Instruction G, check the following box. ___
CALCULATION OF REGISTRATION FEE
Proposed Proposed
maximum maximum
Title of each class offering aggregate Amount of
of securities to be Shares to be price per offering registration
registered registered share (1) price (1) fee
- -------------------- -------------- ---------- ----------- ------------
Common Stock, 10,000,000 $33.1875 $331,875,000 $114,440
$.16 2/3 Par
Value (2)
(1) Estimated pursuant to Rule 457(c) for the purpose of calculating
the registration fee based on the average of the high and low
reported prices on April 24, 1995, as reported on the New York
Stock Exchange Composite Tape.
(2) Includes the preferred stock purchase rights associated with
the Common Stock.
The Registrant hereby amends this Registration Statement on such
date or dates as may be necessary to delay its effective date until
the Registrant shall file a further amendment which specifically
states that this Registration Statement shall thereafter become
effective in accordance with Section 8(a) of the Securities Act of
1933 or until the Registration Statement shall become effective on
such date as the Commission, acting pursuant to said Section 8(a),
may determine.
Pursuant to the provisions of Rule 429 under the Securities Act of
1933, the Prospectus contained in this Registration Statement also
relates to 347,334 shares of Common Stock covered by Registrant's
Registration Statement on Form S-4 (Reg. No. 33-52240). The
registration fees with respect thereto previously have been paid.
BROWNING-FERRIS INDUSTRIES, INC.
CROSS REFERENCE SHEET
Between Items in Part I of the Registration Statement
(Form S-4) and Prospectus Pursuant to Item 501(b)
Item of Form S-4 Location in Prospectus
----------------- ----------------------
1. Forepart of Registration Cover Page
Statement and Outside Front Cover Page
of Prospectus
2. Inside Front and Outside Inside Front and Outside
Back Cover Pages of Prospectus Back Cover Pages;
Available Information;
Incorporation of Certain
Documents by Reference
3. Risk Factors, Ratio of Cover Page; The Company;
Earnings to Fixed Charges and Other Information Selected Financial
Data; Available
Information; Incorporation
of Certain Documents
by Reference*
4. Terms of the Transaction *
5. Pro Forma Financial Information *
6. Material Contracts with the Company Being Acquired *
7. Additional Information Required for Reoffering Outstanding
by Persons and Parties Deemed to be Underwriters Securities Covered
by this Prospectus*
8. Interests of Named Experts and Counsel Experts; Legal Opinions
9. Disclosure of Commission Position on **
Indemnification for Securities Act Liabilities
10. Information with Respect to S-3 Registrants The Company;
Incorporation of Certain
Documents by Reference
11. Incorporation of Certain Information Incorporation of Certain
by Reference Documents by Reference
12. Information with Respect to S-2 or **
S-3 Registrants
13. Incorporation of Certain Information by Reference **
14. Information with Respect to Registrants Other **
than S-3 or S-2 Registrants
15. Information with Respect to S-3 Companies **
16. Information with Respect to S-2 or S-3 Companies **
17. Information with Respect to Companies Other *
than S-3 or S-2 Companies
18. Information if Proxies, Consents or Authorizations *
are to be Solicited
19. Information if Proxies, Consents or Authorizations *
are not to be Solicited or in an Exchange Offer
_______________________
* Inapplicable (or partially inapplicable as indicated) upon
filing of this Registration Statement - may be included in
subsequent post-effective amendments under certain circumstances.
** Not applicable or answer is negative.
SUBJECT TO COMPLETION DATED APRIL 27, 1995
PROSPECTUS
BROWNING-FERRIS INDUSTRIES, INC.
10,347,334 Shares of Common Stock
($.16-2/3 Par Value)
________________
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES
COMMISSION NOR HAS THE SECURITIES AND EXCHANGE COMMISSION
OR ANY STATE SECURITIES COMMISSION PASSED UPON THE ACCURACY
OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE
CONTRARY IS A CRIMINAL OFFENSE.
________________
This Prospectus covers 10,347,334 shares of Common Stock,
$.16-2/3 par value (the "Common Stock"), which may be offered and
issued by the Company from time to time in connection with the
acquisition directly or indirectly by the Company of various
businesses or properties, or interests therein.
It is expected that the specific terms of any acquisition in
respect of which this Prospectus will be delivered will be
determined by direct negotiations with the owners or controlling
persons of the businesses or properties to be acquired, and that
the shares of Common Stock issued in connection therewith will
be valued at prices reasonably related to current market prices
either at the time the terms of an acquisition are agreed upon
or at or about the time of delivery of such shares. No
underwriting discounts or commissions will be paid, although
finders' fees may be paid from time to time with respect to
specific acquisitions. Any person receiving any such fees may
be deemed to be an underwriter within the meaning of the
Securities Act of 1933, as amended (the "Securities Act").
With the consent of the Company, this Prospectus may also be
used by persons who have received or will receive from the
Company Common Stock covered by this Prospectus or by
prospectuses under other registration statements in connection
with acquisitions and who may wish to sell such stock under
circumstances requiring or making desirable its use. See
"Outstanding Securities Covered by this Prospectus" on page 3
for information relating to resales pursuant to this Prospectus
of shares of Common Stock issued under the Registration
Statement.
The shares of Common Stock offered hereby are or will be listed
on the New York Stock Exchange, Inc. subject to official notice
of issuance. On April 25, 1995, the closing price of the Common
Stock as reported on the New York Stock Exchange Composite Tape
was $33.31.
All expenses of this offering will be paid by the Company.
The term "Company" refers to Browning-Ferris Industries, Inc.,
a Delaware corporation, and its subsidiaries, affiliates and
predecessors, unless the context requires otherwise. The
Company's executive offices are located at 757 N. Eldridge,
Houston, Texas 77079. The Company's mailing address is P.O. Box
3151, Houston, Texas 77253 and its telephone number is (713)
870-8100.
___________________________
The date of this Prospectus is April __, 1995
OUTSTANDING SECURITIES COVERED BY THIS PROSPECTUS
This Prospectus has also been prepared for use by persons who
receive from the Company Common Stock covered by the
Registration Statement in acquisitions and who may be entitled
to offer such Common Stock under circumstances requiring the use
of a prospectus (such persons being referred to under this
caption as "Stockholders"); provided, however, that no
Stockholder will be authorized to use this Prospectus for any
offer of such Common Stock without first obtaining the consent
of the Company. The Company may consent to the use of this
Prospectus for a limited period of time by the Stockholders and
subject to limitations and conditions which may be varied by
agreement between the Company and the Stockholders. Resales of
such shares may be made on the New York Stock Exchange or such
other exchange on which the Common Stock may be listed, in the
over-the-counter market, in private transactions or pursuant to
underwriting agreements.
Agreements with Stockholders permitting use of this Prospectus
may provide that any such offering be effected in an orderly
manner through securities dealers, acting as broker or dealer,
selected by the Company; that Stockholders enter into custody
agreements with one or more banks with respect to such shares;
and that sales be made only by one or more of the methods
described in this Prospectus, as appropriately supplemented or
amended when required. The Stockholders may be deemed to be
underwriters within the meaning of the Securities Act.
The Company may agree to indemnify the Stockholders and broker
- - dealers against certain civil liabilities, including liabilities
under the Securities Act, and to reimburse them for certain
expenses incurred in connection with the offering and sale of
shares of Common Stock.
When resales are to be made through a broker or dealer selected
by the Company, it is anticipated that a member firm of the New
York Stock Exchange may be engaged to act as the Stockholders'
agent in the sale of shares by such Stockholders. The member
firm will be entitled to commissions (including negotiated
commissions to the extent permissible). Sales of shares by the
member firm may be made on the New York Stock Exchange or other
exchanges from time to time at prices related to the prices then
prevailing for shares of Common Stock. Any such sales may be by
block trade. Any such member firm may be deemed to be an
underwriter within the meaning of the Securities Act and any
commissions earned by such member firm may be deemed to be
underwriting discounts and commissions under such act.
Upon the Company being notified by a Stockholder that a block
trade has taken place, a supplementary prospectus, if required,
will be filed pursuant to Rule 424 under the Securities Act,
disclosing the name of the member firm, the number of shares
involved, the price at which such shares were sold by such
Stockholder, and the commissions to be paid by such Stockholder
to such member firm.
Stockholders may also offer shares of common stock issued in
past and future acquisitions by means of prospectuses under
other available registration statements or pursuant to
exemptions from the registration requirements of the Securities
Act, including sales which meet the requirements of Rule 145(d)
under the Securities Act, and Stockholders should seek the
advice of their own counsel with respect to the legal
requirements for such sales.
This Prospectus incorporates documents by reference which are not
presented herein or delivered herewith. These documents are
available upon request from Browning-Ferris Industries, Inc., P.O.
Box 3151, Houston, Texas 77253, Attention: Eileen B. Schuler,
Assistant Corporate Secretary (Tel. (713) 870-7893). See
"Incorporation of Certain Documents by Reference."
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"),
and in accordance therewith files reports, proxy statements and
other information with the Securities and Exchange Commission (the
"Commission"). Reports, proxy statements and other information
filed by the Company with the Commission can be inspected and
copied at the public reference facilities maintained by the
Commission at 450 Fifth Street, N.W., Room 1024, Washington, D.C.
20549, and at the following Regional Offices of the Commission:
New York Regional Office, Seven World Trade Center, New York, New
York 10048; and Chicago Regional Office, Northwestern Atrium
Center, 500 West Madison Street, Suite 1400, Chicago, Illinois
60661; and copies of such material can be obtained from the Public
Reference Section of the Commission, 450 Fifth Street, N.W.,
Washington, D.C. 20549 at prescribed rates. The reports, proxy
statements and other information can also be inspected at the
offices of the New York Stock Exchange, Inc., 20 Broad Street, New
York, New York 10005, at the offices of the Chicago Stock Exchange,
Incorporated, 440 S. LaSalle Street, Chicago, Illinois 60605, and
at the offices of the Pacific Stock Exchange Incorporated, 301 Pine
Street, San Francisco, California 94104. The Common Stock is
listed on such exchanges.
This Prospectus constitutes a part of a Registration Statement on
Form S-4 (together with all amendments and exhibits thereto, the
"Registration Statement") filed by the Company with the Commission
under the Securities Act. This Prospectus omits certain of the
information contained in the Registration Statement, and reference
is hereby made to the Registration Statement for further
information with respect to the Company and the Common Stock
offered hereby. Any statements contained herein concerning the
provisions of any document filed as an exhibit to the Registration
Statement or otherwise filed with the Commission are not
necessarily complete, and in each instance reference is made to the
copy of such document so filed. Each such statement is qualified
in its entirety by such reference.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The Company's (i) Annual Report on Form 10-K for the fiscal year
ended September 30, 1994, (ii) Quarterly Report on Form 10-Q for
the quarter ended December 31, 1994, (iii) Current Reports on Form
8-K dated January 24, 1995, as amended, dated March 2, 1995 and
dated March 14, 1995, and (iv) Form 8-A, dated June 1, 1988, for
the registration of the Company's Preferred Stock Purchase Rights,
filed pursuant to the Exchange Act, are incorporated herein by
reference.
All documents filed by the Company pursuant to Section 13(a),
13(c), 14 or 15(d) of the Exchange Act subsequent to the date of
this Prospectus, and prior to the termination of the offering
hereby of the Common Stock, shall be deemed to be incorporated by
reference in this Prospectus and to be a part hereof from the date
of filing of such documents. Any statement contained herein or in
a document incorporated or deemed to be incorporated by reference
herein shall be deemed to be modified or superseded for purposes of
this Prospectus to the extent that a statement contained herein or
in any subsequently filed document which also is or is deemed to be
incorporated by reference herein modifies or supersedes such
statement. Any statement so modified or superseded shall not be
deemed, except as so modified or superseded, to constitute a part
of this Prospectus.
Copies of all documents incorporated by reference in this
Prospectus (other than exhibits to such documents unless such
exhibits are specifically incorporated by reference into such
documents) will be provided without charge to each person,
including any beneficial owner, to whom a copy of this Prospectus
is delivered, upon written or oral request of such person. Request
for such copies should be directed to the Secretary's Department,
Browning-Ferris Industries, Inc., P.O. Box 3151, Houston, Texas
77253, telephone number (713) 870-7893.
THE COMPANY
The Company is one of the largest publicly-held companies engaged
primarily in providing waste services. Subsidiaries and affiliates
collect, transport, treat and/or process, recycle and dispose of
commercial, residential, and municipal solid wastes and industrial
wastes. The Company's subsidiaries are also involved in resource
recovery, medical waste services, portable restroom services, and
municipal and commercial sweeping operations. The Company's
subsidiaries and affiliates (including unconsolidated affiliates)
operate in approximately 400 locations in North America and
approximately 250 locations outside North America and employ
approximately 37,000 persons. In addition to operations in the
United States, Canada and Puerto Rico, the Company has operations
in Australia, Finland, Germany, Hong Kong, Italy, Kuwait, the
Netherlands, New Zealand, Spain and the United Kingdom.
The term "Company" refers to Browning-Ferris Industries, Inc.,
incorporated in Delaware on October 26, 1970, and to its
subsidiaries, affiliates and predecessors, unless the context
requires otherwise. The Company's executive offices are located at
757 N. Eldridge, Houston, Texas 77079. The Company's mailing
address is P.O. Box 3151, Houston, Texas 77253, and its telephone
number is (713) 870-8100.
USE OF PROCEEDS
This Prospectus relates to shares of Common Stock of the Company
which may be offered and issued by the Company from time to time in
connection with the acquisition of other businesses or properties,
or interests therein. Other than the businesses or properties
acquired, there will be no proceeds to the Company from these
offerings. When this Prospectus is used in a public reoffering or
resale of Common Stock acquired pursuant to this Prospectus, the
Company will not receive any proceeds from such sale by the selling
stockholder.
SELECTED FINANCIAL DATA
The following is a summary of certain consolidated financial
information regarding the Company for the periods indicated. The
selected financial information set forth below for the years ended
September 30, 1990 through 1994 is summarized or prepared from the
Company's audited consolidated financial statements for such
periods. The financial information set forth for the three months
ended December 31, 1993 and 1994 is summarized or prepared from the
Company's unaudited consolidated financial statements for such
periods, which have been prepared on a basis substantially
consistent with the audited consolidated financial statements, and
reflect, in the opinion of management, all adjustments (which
include only normal recurring adjustments) necessary to a fair
presentation of the financial position and results of operations
for such periods. The results for the three months ended December
31, 1994 are not necessarily indicative of the results for the full
year. The data presented below should be read in conjunction with
the Company's consolidated financial statements and the notes
thereto incorporated by reference herein. See "Incorporation of
Certain Documents by Reference".
(In Millions, Except for Ratios and Per Share Amounts)
Three
Months Ended
December 31, Year Ended September 30,
--------------- ------------------------------------
1994 1993 1994 1993 1992 1991 1990
Operating ----- ----- ----- ----- ----- ----- ----
Statement Data:
Revenues(1) $1,293 $ 928 $4,315 $3,479 $3,278 $3,175 $2,958
Income from
continuing
operations before
special charges
and extraordinary
item $ 90 $ 59 $ 284 $ 214 $ 176 $ 222 $ 298
Income from
continuing
operations before
extraordinary item $ 90 $ 59 $ 284 $ 197 $ 176 $ 65 $ 257
Net income (loss) $ 90 $ 59 $ 279 $ 197 $ 176 $ 65 $ (45)
Income (loss) per
common and common
equivalent share -
Income from
continuing
operations before
extraordinary item $ .45 $ .34 $ 1.52 $ 1.15(3) $ 1.11 $ .42(4) $1.68(5)
Net income (loss) $ .45 $ .34 $1.49(2) $ 1.15 $ 1.11 $ .42 $(.29)
Cash dividends per
common share $ .17 $ .17 $ .68 $ .68 $ .68 $ .68 $ .64
Cash Flow Data:
Capital
expenditures -
continuing
operations $ 199 $ 156 $ 694 $ 606 $ 531 $ 478 $ 441
Cash flows from
operating
activities $ 185 $ 141 $ 694 $ 614 $ 577 $ 686 $ 593
Balance Sheet
Data:
Property and
equipment, net $3,346 $2,615 $3,050 $2,516 $2,264 $2,140 $1,988
Total assets $6,880 $4,382 $5,797 $4,296 $4,068 $3,656 $3,574
Senior long-term
debt, excluding
current maturities $1,522 $ 352 $ 714 $ 334 $ 349 $ 407 $ 448
Convertible
subordinated
debentures $ 745 $ 745 $ 745 $ 745 $ 745 $ 745 $ 745
Common
stockholders'
equity $2,454 $1,546 $2,392 $1,533 $1,460 $1,114 $1,162
Other Data:
Ratio of earnings
to fixed
charges (6) 4.44 4.01 4.25 3.31(7) 3.08 1.76(8) 4.21
(1) Certain reclassifications have been made in prior period amounts to
conform to the current year presentation.
(2) Includes extraordinary charge of $5 million, net of tax ($.03 per
share) related to the loss on early retirement of debt.
(3) $1.25 per share before a special charge of $.10 per share taken in
fiscal 1993 to cover the estimated expense of reorganizing the Company's
regional structure in the United States.
(4) $1.44 per share before a special charge of $1.02 per share taken in
fiscal 1991 to establish additional landfill closure and post-closure
accruals.
(5) $1.94 per share before special charges of $.27 per share taken in
fiscal 1990 to provide primarily for additional landfill market
development reserves and in connection with the settlement of a
series of private civil lawsuits.
(6) For the purposes of computing the ratio of earnings to fixed
charges, "earnings" has been calculated by adding to the caption
"income before income taxes, extraordinary item and minority
interest", fixed charges, excluding capitalized interest, and by
deducting equity in earnings of affiliates less than 50% owned.
"Fixed Charges" consists of interest expense whether capitalized
or expensed, amortization of debt costs, and one-third of rental
expense, which the Company considers representative of the interest
factor in the rentals. The interest expense portion of fixed charges
includes interest expense and interest costs capitalized related to the
Company's proportionate share of 50%-owned subsidiaries and has been
reduced by capitalized interest income earned on proceeds primarily
from tax-exempt financings of such 50%-owned subsidiaries.
(7) Excluding the effects of the fiscal 1993 reorganization charge of
$27.0 million, the ratio of earnings to fixed charges for fiscal
1993 was 3.51.
(8) Excluding the effects of the fiscal year 1991 special charge of
$246.5 million, the ratio of earnings to fixed charges for fiscal
year 1991 was 3.63.
DESCRIPTION OF CAPITAL STOCK
Pursuant to its Restated Certificate of Incorporation, BFI is authorized
to issue (i) 400,000,000 shares of Common Stock, $.16-2/3 par value, and
(ii) 25,000,000 shares of Preferred Stock, without par value, of which
4,000,000 shares have been designated by the Board of Directors as
Series A Participating Preferred Stock, which may be issued upon the
exercise of Rights (hereinafter defined) associated with the Common
Stock as discussed below.
On March 31, 1995, 212,648,092 shares of Common Stock were issued and
outstanding and 35,504,439 shares were reserved for issuance (i)
pursuant to the Company's Dividend Reinvestment Plan and employee
benefit plans (including stock option plans), (ii) upon conversion of
debentures, and (iii) in connection with the acquisition of businesses
and properties in the normal course of business. Holders of Common
Stock are entitled to one vote for each share held. All outstanding
shares are, and shares issuable hereunder will be, validly issued, fully
paid and nonassessable. Holders of Common Stock have no cumulative
voting rights or preemptive rights. In the event of a liquidation,
dissolution or winding up of the Company, holders of Common Stock are
entitled to share ratably in the distribution of assets remaining after
payment of debts and expenses and of any preference due to holders of
any preferred stock of the Company then outstanding. No shares of
preferred stock are currently outstanding.
On June 1, 1988, the Board of Directors of the Company declared a
dividend distribution of one right (a "Right") on each share of Common
Stock outstanding at the close of business on June 13, 1988, and in
connection therewith entered into a Rights Agreement, dated as of June
1, 1988 (as amended, the "Rights Agreement") with Texas Commerce Bank
National Association (subsequently succeeded by First Chicago Trust
Company of New York) as Rights Agent. In addition, the Board authorized
the issuance of one Right with respect to each share of Common Stock
that becomes outstanding between June 13, 1988 and the earliest of the
dates on which separate Right certificates are distributed or the Rights
expire or are redeemed. The Rights distribution was not taxable to
stockholders.
When exercisable, each Right will entitle the registered holder to
purchase one one-hundredth of a share of Series A Participating
Preferred Stock at an exercise price of $110.00, subject to adjustment.
The Rights will not be exercisable prior to the expiration of the
Company's right to redeem the Rights. The Company is entitled to redeem
the Rights at $.05 per Right (subject to adjustment) up to and including
the tenth business day (twentieth business day if the Board of Directors
so determines) after the acquisition by a person of beneficial ownership
of shares of the Company's stock having 10% or more of the general
voting power of the Company. The Rights will expire on June 13, 1998,
unless earlier redeemed.
In general, the Rights Agreement provides that if the Company is
acquired in a merger or other business combination transaction on or at
any time after the date on which a person obtains ownership of stock
having 10% or more of the Company's general voting power ("Stock
Acquisition Date"), provision must be made prior to the consummation of
such transaction to entitle each holder of a Right (except as provided
in the Plan) to purchase at the exercise price a number of the acquiring
company's common shares having a market value (determined as provided
in the Rights Agreement) at the time of such transaction of two times
the exercise price of the Right. The Rights Agreement also provides
that in the event of (i) the acquisition of the Company on or at any
time after the Stock Acquisition Date in a merger or other business
combination transaction in which the Company's Common Stock remains
outstanding and unchanged, (ii) certain self-dealing transactions by a
10% or greater stockholder, (iii) the acquisition by a person of at
least 15% of the general voting power of the Company or (iv) an increase
in the ownership interest of a 10% or greater stockholder by more than
1% as a result of the occurrence of any of certain events specified in
the Rights Agreement, then, in each such case, each holder of a Right
(except as provided in the Rights Agreement) will have the right to
receive, upon payment of the exercise price, a number of shares of
Series A Participating Preferred Stock having a market value (determined
as provided in the Rights Agreement) at the time of such transaction of
two times the exercise price of a Right.
Certain provisions in the Company's Restated Certificate of
Incorporation and By-laws may have an effect of delaying, deferring or
preventing a change in control of BFI. These provisions require that
the Company's Board of Directors be divided into three classes that are
elected for staggered three-year terms; provide that stockholders may
act only at annual or special meetings and may not act by written
consent; provide that special meetings of stockholders may be called
only by the Board of Directors; authorize the directors of the Company
to determine the size of the Board of Directors; require that
stockholder nominations for directors be made to the Nominating
Committee of the Company prior to a meeting of stockholders; provide
that directors may be removed only for cause and only by a supermajority
vote (80% of shares outstanding) of the stockholders (a "Supermajority
Vote"), including a majority in interest of the holders ("Minority
Holders") of voting stock held by persons other than any person who,
together with its affiliates and associates, owns more than 10% of the
voting stock; provide for certain minimum price and procedural
requirements in connection with certain business combinations, in the
absence of which the business combination would require approval by a
Supermajority Vote, including a majority in interest of the Minority
Holders; require a Supermajority Vote, including a majority in interest
of the Minority Holders, for the amendment of any of the foregoing
provisions unless approved by a majority of the Board of Directors in
certain events; and authorize the Board of Directors to establish one or
more series of Company Preferred Stock, without any further stockholder
approval, having rights, preferences, privileges and limitations that
could impede or discourage the acquisition of control of the Company.
The Common Stock Transfer Agent and Registrar is First Chicago Trust
Company of New York, Stock Transfer Department, Post Office Box 3981,
Church Street Station, New York, New York 10008.
PRICE RANGE OF
COMMON STOCK AND DIVIDENDS
The Common Stock is listed on the New York, Chicago and Pacific Stock
Exchanges and trades under the symbol "BFI". The Common Stock is also
listed on The International Stock Exchange of the United Kingdom and
Republic of Ireland Ltd. The following table sets forth, for the
periods indicated, (i) the high and low sale prices of the Common Stock
as reported on the New York Stock Exchange Composite Tape, and (ii) the
dividends declared on the Common Stock.
Price Range
High Low Dividends
----- ------ ----------
Fiscal Year Ended September 30,
1993
First Quarter............. $27-1/8 $21-5/8 $.17
Second Quarter............ 28-5/8 25-3/4 .17
Third Quarter............. 28 24 .17
Fourth Quarter............ 27-7/8 22-3/8 .17
Fiscal Year Ended September 30,
1994
First Quarter............. $27-1/2 $20-7/8 $.17
Second Quarter............ 30-1/4 24-1/4 .17
Third Quarter............. 32-1/4 24-5/8 .17
Fourth Quarter............ 32-7/8 29 .17
Fiscal Year Ending September 30,
1995
First Quarter............. $33-3/8 $25-5/8 $.17
Second Quarter............ 34-1/4 27-1/8 .17
Third Quarter............. 34-3/4 32-7/8
(through April 25, 1995)
For a recent closing sales price for the Common Stock, as reported on
the New Stock Exchange, see the cover page of this Prospectus. As of
April 26, 1995, there were approximately 19,000 holders of record of
Common Stock.
The Company has paid cash dividends on its Common Stock each year since
1950 and currently expects to continue the payment of dividends,
although future dividend payments will depend upon the Company's level
of earnings, financial requirements and other relevant factors,
including dividend restrictions contained in the Company's debt
instruments. The amount available for payment of dividends on the
Common Stock pursuant to the most restrictive of such limits was
approximately $1.0 billion at December 31, 1994, after giving effect to
cash dividends paid or declared through December 31, 1994. The most
restrictive limit in the Company's credit agreements provides that the
Company will not permit consolidated net worth at any time (i) during the
fiscal year ending September 30, 1995 to be less than $1.5 billion, and
(ii) during any subsequent fiscal year, to be less than the amount of
required consolidated net worth for the immediately preceding year plus
25% of consolidated net income for such immediately preceding fiscal year;
excluding certain adjustments relating to foreign currency translation.
LEGAL OPINION
The legality of the Common Stock to be offered hereby will be passed
upon for the Company by Edward C. Norwood, Divisional Vice President and
Associate General Counsel of the Company. Mr. Norwood owns or has the
right to acquire less than .1% of the Company's common stock.
EXPERTS
The consolidated financial statements and schedules included in the
Annual Report of the Company on Form 10-K for the year ended September
30, 1994, incorporated herein by reference, have been audited by Arthur
Andersen LLP, independent public accountants, as indicated in their
report with respect thereto, and are incorporated herein by reference in
reliance upon the authority of said firm as experts in giving said
report.
The consolidated financial statements of Attwoods plc included in the
Company's Current Report on Form 8-K dated January 24, 1995, incorporated
herein by reference, have been audited by Binder Hamlyn, Chartered
Accountants, Registered Auditors, as indicated in their report with
respect thereto, and are incorporated herein by reference in reliance
upon the authority of said firm as experts in giving said report.
No dealer, salesman or other person has been authorized to give any
information or to make any representation not contained in, or
incorporated by reference in, this Prospectus and, if given or made,
such information or representation must not be relied upon as having
been authorized by the Company, by any selling stockholder or
underwriter. This Prospectus does not constitute an offer to sell or a
solicitation of an offer to buy any of the securities offered hereby in
any jurisdiction to any person to whom it is unlawful to make such
offer or solicitation in such jurisdiction. Neither the delivery
of this Prospectus nor any sale made hereunder shall, under any
circumstances, create any implication that the information
herein is correct as of any time subsequent to the date hereof or
that there has been no change in the affairs of the Company since such
date.
_______________
TABLE OF CONTENTS
Page
-----
Outstanding Securities
Covered by this Prospectus 3
Available Information 4
Incorporation of Certain
Documents by Reference 5
The Company 6
Use of Proceeds 6
Selected Financial Data 6
Description of Capital
Stock 10
Price Range of Common Stock
and Dividends 12
Legal Opinion 13
Experts 13
Browning-Ferris Industries, Inc.
10,000,000 Shares
of
Common Stock
_________________________
P R O S P E C T U S
_________________________
April __, 1995
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 20. Indemnification of Directors and Officers.
Section 145 of the General Corporation Law of the State of Delaware
empowers the Company to, and the By-laws of the Company provide that
it shall, indemnify any person who was or is a party or is threatened
to be made a party to, or otherwise becomes involved in, any
threatened, pending or completed action, suit or proceeding, whether
civil, criminal, administrative or investigative (formal or informal),
other than an action by or in the right of the Company, by reason of
the fact that he is or was a director, officer, employee or agent of
the Company, or is or was serving at the request of the Company as a
director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise, against
expenses (including attorneys' fees), judgments, fines and amounts
paid in settlement actually and reasonably incurred by him in
connection with such action, suit or proceeding if he acted in good
faith and in a manner he reasonably believed to be in or not opposed
to the best interests of the Company, and, with respect to any
criminal action or proceeding, had no reasonable cause to believe his
conduct was unlawful; except that, in the case of an action or suit by
or in the right of the Company, no indemnification may be made in
respect of any claim, issue or matter as to which such person shall
have been adjudged to be liable to the Company unless and only to the
extent that the Court of Chancery of the State of Delaware or the
court in which such action or suit was brought shall determine that
such person is fairly and reasonably entitled to indemnity for proper
expenses.
The Company's By-laws provide, pursuant to Section 145 of the General
Corporation Law of the State of Delaware, for indemnification of
officers, directors, employees and agents of the Company and persons
serving at the request of the Company in such capacities for other
business organizations against certain losses, costs, liabilities and
expenses incurred by reason of their positions with the Company or
such other business organizations.
The Company's Restated Certificate of Incorporation contains a
provision which eliminates, to the fullest extent permitted by law,
director liability for monetary damages for breaches of fiduciary duty
of care.
At the annual meeting of stockholders held on March 4, 1987, the
Company's stockholders adopted a resolution authorizing the Company
to enter into an Indemnity Agreement (the "Indemnity Agreement") with
each director of the Company and with certain officers of the Company
designated by the Board of Directors or its Executive Committee. The
Indemnity Agreement requires that the Company indemnify directors and
designated officers who are parties thereto in all cases to the
fullest extent permitted by applicable law.
Pursuant to a policy of directors' and officers' liability and
corporation reimbursement insurance, the Company's officers and
directors are insured, subject to the limits, retention, exceptions
and other terms and conditions of such policy, against liability for
any actual or alleged breach of duty, neglect, error, misstatement,
misleading statement, omission or other act done or wrongfully
attempted while acting in their capacities as directors or officers
of the Company.
Pursuant to a number of agreements by which the Company acquired
ownership of businesses, the former owners of those businesses
individually agreed to indemnify each officer of the Company, each
person who may be liable as a director of the Company or as a person
who controls or shall have controlled the Company within the meaning
of the Securities Act of 1933, as amended (the "Securities Act")
against certain liabilities that such officers, directors or
controlling persons might incur. Generally, such former owners have
agreed to indemnify such officers, directors or controlling persons
against any and all damages or liabilities to which such officers,
directors or control persons may become subject under the Securities
Act, the Securities Exchange Act of 1934, as amended, state securities
laws, the common law or otherwise, including legal and other expenses
incurred in connection therewith, but only insofar as such liabilities
arise out of or are based upon any untrue statement or omission or
alleged omission based upon information furnished to the Company by
or on behalf of such former owner for use in certain registration
statements filed by the Company under the Securities Act or upon
failure of such former owner to provide such information.
Item 21. Exhibits and Financial Statement Schedules.
(a) Exhibits
3.1 Restated Certificate of Incorporation of BFI, dated
October 7, 1991. (Exhibit 3(a) of Form 10-K for the
fiscal year ended September 30, 1993, is hereby incor-
porated by reference.)
*3.2 By-laws of BFI, as amended through March 1, 1995.
4.1 Rights Agreement, dated June 1, 1988, between BFI
and Texas Commerce Bank National Association. (Exhibit 3.3
of Form 10-K for the fiscal year ended September 30, 1988,
is hereby incorporated by reference.)
4.2 First Amendment, dated March 1, 1989, to Rights Agreement,
dated as of June 1, 1988, between BFI and Texas Commerce
Bank National Association. (Exhibit 10.1 of Form 10-Q for
the quarter ended June 30, 1989, is hereby incorporated by
reference.)
4.3 Second Amendment, dated March 7, 1990, to Rights Agreement,
dated as of June 1, 1988, between BFI and First Chicago Trust
Company of New York as successor Rights Agent. (Exhibit 4.1 of
Form 10-Q for the quarter ended March 31, 1990, is hereby
incorporated by reference.)
4.4 Amended and Restated Revolving Credit Agreement, dated as of
September 10, 1992, among BFI and Texas Commerce Bank National
Association, as Administrative Agent, and the other banks named
therein. (Exhibit 4.4 of Form 10-K for the fiscal year ended
September 30, 1992, is hereby incorporated by reference.)
4.5 Restated Indenture, dated as of September 1, 1991, between
First City, Texas-Houston, National Association, Trustee, and
BFI. (Exhibit 4.8 of Form 10-K for the fiscal year ended
September 30, 1991, is hereby incorporated by reference.)
4.6 Indenture, dated as of August 1, 1987, between First RepublicBank
Houston, National Association, Trustee, and BFI. (Exhibit 4.1
to Registration Statement on Form S-3 No. 33-16537 is hereby
incorporated by reference.)
4.7 First Supplemental Indenture, dated as of January 11, 1994,
between Nations Bank of Texas, National Association, Trustee,
and BFI. (Exhibit 4(f) to Registration Statement on Form S-3
No. 33-58790 is hereby incorporated by reference.)
4.8 Indenture, dated as of July 16, 1990, between BFI and Morgan
Guaranty Trust Company of New York, as Trustee. (Exhibit 4.1
of Form 10-Q for the quarter ended June 30, 1990, is hereby
incorporated by reference.)
4.9 First Supplemental Indenture, dated as of December 26, 1990,
to Indenture, dated as of July 16, 1990, between BFI and Morgan
Guaranty Trust Company of New York, as Trustee. (Exhibit 4.1
of Form 10-Q for the quarter ended December 31, 1990, is hereby
incorporated by reference.)
4.10 500,000,000 pounds Multicurrency Revolving Credit Agreement,
dated December 5, 1994, between BFI Acquisitions plc, BFI
International, Inc., Browning-Ferris Industries Europe, Inc.,
the Company and Credit Suisse and the Banks specified therein.
(Exhibit 10 of Form 10-Q for the quarter ended December 31,
1994, is hereby incorporated by reference.)
*5.1 Opinion of Edward C. Norwood as to legality of securities.
*23.1 Consent of Edward C. Norwood (Included in the opinion filed as
Exhibit 5.1)
*23.2 Consent of Arthur Andersen LLP.
*23.3 Consent of Binder Hamlyn.
24.1 Powers of Attorney (Included in the signature page).
_______________
*Filed herewith.
(b) Financial Statement Schedules
Financial Statement Schedules have been previously filed as part of the
Company's Form 10-K for the fiscal year ended September 30, 1994.
Item 22. Undertakings
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by section 10(a)(3) of
the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the registration statement (or the most
recent post-effective amendment thereof) which, individually or in
the aggregate, represent a fundamental change in the information
set forth in the registration statement;
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the registration
statement or any material change to such information in the
registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be
deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at the time shall
be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold
at the termination of the offering.
(4) That, for purposes of determining any liability under the
Securities Act of 1933, each filing of the registrant's annual report
pursuant to section 13(a) or section 15(d) of the Securities Exchange
Act of 1934 that is incorporated by reference in the registration
statement shall be deemed to be a new registration statement relating
to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(5) That prior to any public reoffering of the securities registered
hereunder through use of a prospectus which is a part of this
registration statement, by any person or party who is deemed to be an
underwriter within the meaning of Rule 145(c), the issuer undertakes
that such reoffering prospectus will contain the information called
for by the applicable registration form with respect to reofferings
by persons who may be deemed underwriters, in addition to the information
called for by the other Items of the applicable form.
(6) That every prospectus (i) that is filed pursuant to paragraph (5)
immediately preceding, or (ii) that purports to meet the requirements of
section 10(a)(3) of the Act and is used in connection with an offering of
securities subject to Rule 415, will be filed as a part of an amendment to
the registration statement and will not be used until such amendment is
effective, and that, for purposes of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof.
(7) To respond to requests for information that is incorporated by
reference into the prospectus pursuant to Items 4, 10(b), 11, or 13
of this Form, within one business day of receipt of such request, and
to send the incorporated documents by first class mail or other equally
prompt means. This includes information contained in documents filed
subsequent to the effective date of the registration statement through
the date of responding to the request.
(8) To supply by means of a post-effective amendment all required
information concerning a transaction, and the company being acquired
involved therein, that was not the subject of and included in the
registration statement when it became effective.
Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and
controlling persons of the registrant pursuant to the foregoing
provisions, or otherwise, the registrant has been advised that in the
opinion of the Securities and Exchange Commission such indemnification
is against public policy as expressed in the Act and is, therefore,
unenforceable. In the event that a claim for indemnification against
such liabilities (other than the payment by the registrant of expenses
incurred or paid by a director, officer or controlling person of the
registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling
person in connection with the securities being registered, the
registrant will, unless in the opinion of its counsel the matter has
been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such indemnification by
it is against public policy as expressed in the Act and will be
governed by the final adjudication of such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as
amended, the Registrant has duly caused this Registration Statement
to be signed on its behalf by the undersigned, thereunto duly
authorized in the City of Houston, State of Texas, on this 27th day
of April, 1995.
BROWNING-FERRIS INDUSTRIES, INC.
(Registrant)
By: /s/ William D. Ruckelshaus
-------------------------------
William D. Ruckelshaus,
Chairman of the Board,
Chief Executive Officer
and Director
POWER OF ATTORNEY AND SIGNATURES
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints WILLIAM D. RUCKELSHAUS, JEFFREY
E. CURTISS and RUFUS WALLINGFORD, and each of them, acting without the
others, true and lawful attorney-in-fact and agent, with full power of
substitution and resubstitution, for him in his name, place and
stead, in any and all capacities, to sign any and all amendments
(including post-effective amendments) to this Registration Statement
and to file the same, with all exhibits thereto, and other documents
in connection therewith, with the Securities and Exchange Commission
and to make any and all state securities law or blue sky filings,
granting unto said attorney-in-fact and agent, full power and
authority to do and perform each and every act and thing requisite or
necessary to be done in and about the premises, as fully to all
intents and purposes as he might or could do in person, thereby
ratifying and confirming all that said attorney-in-fact and agent, or
his substitute or substitutes, may lawfully do or cause to be done by
virtue hereof. Pursuant to the requirements of the Securities Act of
1933, as amended, this Registration Statement has been signed below
by the following persons in the capacities and on the date indicated.
/s/ William D. Ruckelshaus
-------------------------------
William D. Ruckelshaus,
Chairman of the Board,
Chief Executive Officer
and Director
/s/ Bruce E. Ranck
-------------------------------
Bruce E. Ranck,
President, Chief Operating
Officer and Director
/s/ Norman A. Myers
-------------------------------
Norman A. Myers,
Vice Chairman, Chief
Marketing Officer and Director
/s/ Jeffrey E. Curtiss
-------------------------------
Jeffrey E. Curtiss,
Senior Vice President and
Chief Financial Officer
/s/ David R. Hopkins
-------------------------------
David R. Hopkins,
Vice President, Controller
and Chief Accounting Officer
/s/ William T. Butler
-------------------------------
William T. Butler, Director
/s/ C. Jackson Grayson, Jr.
-------------------------------
C. Jackson Grayson, Jr., Director
/s/ Gerald Grinstein
-------------------------------
Gerald Grinstein, Director
/s/ Ulrich Otto
-------------------------------
Ulrich Otto, Director
/s/ Harry J. Phillips, Sr.
-------------------------------
Harry J. Phillips, Sr., Director
/s/ Joseph L. Roberts, Jr.
-------------------------------
Joseph L. Roberts, Jr., Director
/s/ Marc J. Shapiro
-------------------------------
Marc J. Shapiro, Director
/s/ Robert M. Teeter
-------------------------------
Robert M. Teeter, Director
/s/ Marina v.N. Whitman
-------------------------------
Marina v.N. Whitman, Director
/s/ Louis A. Waters
-------------------------------
Louis A. Waters, Director
/s/ Peter S. Willmott
-------------------------------
Peter S. Willmott, Director
Date: April 27, 1995
EXHIBIT INDEX
3.1 Restated Certificate of Incorporation of BFI, dated
October 7, 1991. (Exhibit 3(a) of Form 10-K for the
fiscal year ended September 30, 1993, is hereby incor-
porated by reference.)
*3.2 By-laws of BFI, as amended through March 1, 1995.
4.1 Rights Agreement, dated June 1, 1988, between BFI
and Texas Commerce Bank National Association. (Exhibit 3.3
of Form 10-K for the fiscal year ended September 30, 1988,
is hereby incorporated by reference.)
4.2 First Amendment, dated March 1, 1989, to Rights Agreement,
dated as of June 1, 1988, between BFI and Texas Commerce
Bank National Association. (Exhibit 10.1 of Form 10-Q for
the quarter ended June 30, 1989, is hereby incorporated by
reference.)
4.3 Second Amendment, dated March 7, 1990, to Rights Agreement,
dated as of June 1, 1988, between BFI and First Chicago Trust
Company of New York as successor Rights Agent. (Exhibit 4.1 of
Form 10-Q for the quarter ended March 31, 1990, is hereby
incorporated by reference.)
4.4 Amended and Restated Revolving Credit Agreement, dated as of
September 10, 1992, among BFI and Texas Commerce Bank National
Association, as Administrative Agent, and the other banks named
therein. (Exhibit 4.4 of Form 10-K for the fiscal year ended
September 30, 1992, is hereby incorporated by reference.)
4.5 Restated Indenture, dated as of September 1, 1991, between
First City, Texas-Houston, National Association, Trustee, and
BFI. (Exhibit 4.8 of Form 10-K for the fiscal year ended
September 30, 1991, is hereby incorporated by reference.)
4.6 Indenture, dated as of August 1, 1987, between First RepublicBank
Houston, National Association, Trustee, and BFI. (Exhibit 4.1
to Registration Statement on Form S-3 No. 33-16537 is hereby
incorporated by reference.)
4.7 First Supplemental Indenture, dated as of January 11, 1994,
between Nations Bank of Texas, National Association, Trustee,
and BFI. (Exhibit 4(f) to Registration Statement on Form S-3
No. 33-58790 is hereby incorporated by reference.)
4.8 Indenture, dated as of July 16, 1990, between BFI and Morgan
Guaranty Trust Company of New York, as Trustee. (Exhibit 4.1
of Form 10-Q for the quarter ended June 30, 1990, is hereby
incorporated by reference.)
4.9 First Supplemental Indenture, dated as of December 26, 1990,
to Indenture, dated as of July 16, 1990, between BFI and Morgan
Guaranty Trust Company of New York, as Trustee. (Exhibit 4.1
of Form 10-Q for the quarter ended December 31, 1990, is hereby
incorporated by reference.)
4.10 500,000,000 pounds Multicurrency Revolving Credit Agreement,
dated December 5, 1994, between BFI Acquisitions plc, BFI
International, Inc., Browning-Ferris Industries Europe, Inc.,
the Company and Credit Suisse and the Banks specified therein.
(Exhibit 10 of Form 10-Q for the quarter ended December 31,
1994, is hereby incorporated by reference.)
*5.1 Opinion of Edward C. Norwood as to legality of securities.
*23.1 Consent of Edward C. Norwood (Included in the opinion filed as
Exhibit 5.1)
*23.2 Consent of Arthur Andersen LLP.
*23.3 Consent of Binder Hamlyn.
24.1 Powers of Attorney (Included in the signature page).
_______________
*Filed herewith.
BY-LAWS OF
BROWNING-FERRIS INDUSTRIES, INC.
A Delaware Corporation
As Amended Through March 1, 1995
BY-LAWS, AS AMENDED, OF
BROWNING-FERRIS INDUSTRIES, INC.
a Delaware corporation
TABLE OF CONTENTS*
ARTICLE 1 Offices
Page
SECTION 1.1 Registered Office. 1
SECTION 1.2 Other Offices. 1
ARTICLE II Meetings of Stockholders
SECTION 2.1 Place of Meeting. 1
SECTION 2.2 Annual Meeting. 1
SECTION 2.3 Voting List. 1
SECTION 2.4 Special Meeting. 1
SECTION 2.5 Notice of Meeting. 1
SECTION 2.6 Quorum. 2
SECTION 2.7 Voting. 2
SECTION 2.8 Consent of Stockholders. 2
SECTION 2.9 Voting of Stock of Certain Holders. 2
SECTION 2.10 Treasury Stock. 2
SECTION 2.11 Fixing Record Date. 2
SECTION 2.12 Notification of Nominations. 3
ARTICLE III Board of Directors
SECTION 3.1 Powers. 3
SECTION 3.2 Number, Election and Term. 3
SECTION 3.3 Vacancies, Additional Directors and Removal from Office. 3
SECTION 3.4 Regular Meeting. 4
SECTION 3.5 Special Meeting. 4
SECTION 3.6 Notice of Special Meeting. 4
SECTION 3.7 Quorum. 4
SECTION 3.8 Action Without Meeting. 4
SECTION 3.9 Meeting by Telephone. 4
SECTION 3.10 Compensation. 4
- -------------
* This Table of Contents is not part of the By-Laws, as amended.
ARTICLE IV Committees of Directors
SECTION 4.1 Executive Committee. 5
SECTION 4.2 Compensation Committee. 5
SECTION 4.3 Audit Committee. 5
SECTION 4.4 Nominating Committee. 6
SECTION 4.5 Corporate Responsibility Committee. 6
SECTION 4.6 Finance Committee. 7
SECTION 4.7 Designation, Powers and Name. 7
SECTION 4.8 Committee Operations. 7
SECTION 4.9 Minutes. 8
SECTION 4.10 Compensation. 8
ARTICLE V Notice
SECTION 5.1 Methods of Giving Notice. 8
SECTION 5.2 Written Waiver. 8
ARTICLE VI Officers
SECTION 6.1 Officers. 8
SECTION 6.2 Election and Term of Office. 9
SECTION 6.3 Removal and Resignation. 9
SECTION 6.4 Vacancies. 9
SECTION 6.5 Salaries. 9
SECTION 6.6 Chairman of the Board. 9
SECTION 6.7 Vice Chairman. 9
SECTION 6.8 President. 10
SECTION 6.9 Vice Presidents. 10
SECTION 6.10 Secretary. 10
SECTION 6.11 Treasurer. 10
SECTION 6.12 Assistant Secretary or Assistant Treasurer. 11
ARTICLE VII Contracts, Checks and Deposits
SECTION 7.1 Contracts. 11
SECTION 7.2 Checks, etc. 11
SECTION 7.3 Deposits. 11
ARTICLE VIII Certificate of Stock
SECTION 8.1 Issuance. 11
SECTION 8.2 Lost Certificates. 12
SECTION 8.3 Transfers. 12
SECTION 8.4 Registered Stockholders. 12
ARTICLE IX Dividends
SECTION 9.1 Declaration. 12
SECTION 9.2 Reserve. 12
ARTICLE X Indemnification
SECTION 10.1 Third Party Actions. 13
SECTION 10.2 Actions by or in the Right of the Corporation. 13
SECTION 10.3 Successful Defense. 13
SECTION 10.4 Determination of Conduct. 13
SECTION 10.5 Payment of Expenses in Advance. 13
SECTION 10.6 Indemnity Not Exclusive. 14
SECTION 10.7 The Corporation. 14
SECTION 10.8 Insurance Indemnification. 14
SECTION 10.9 Heirs, Executors and Administrators. 14
ARTICLE XI Miscellaneous
SECTION 11.1 Seal. 14
SECTION 11.2 Books. 14
ARTICLE XII Amendment
BY-LAWS, AS AMENDED,*
OF
BROWNING-FERRIS INDUSTRIES, INC.
(A Delaware corporation)
ARTICLE I
Offices
SECTION 1.1. Registered Office. The registered office of the
corporation in the State of Delaware shall be in the City of Wilmington,
County of New Castle, and the name of its registered agent shall be The
Corporation Trust Company.
SECTION 1.2. Other Offices. The corporation may also have offices at
such other places both within and without the State of Delaware as the
Board of Directors may from time to time determine or the business of
the corporation may require.
ARTICLE II
Meetings of Stockholders
SECTION 2.1. Place of Meeting. All meetings of stockholders(21) shall
be held at such place, either within or without the State of Delaware,
as shall be designated from time to time by the Board of Directors and
stated in the notice of the meeting.
SECTION 2.2. Annual Meeting. The annual meeting of stockholders shall
be held at such date and time as shall be designated from time to time
by the Board of Directors and stated in the notice of the meeting.
SECTION 2.3. Voting List. The officer who has charge of the stock
ledger of the corporation shall prepare and make, at least ten days
before every meeting of stockholders, a complete list of the stockholders
entitled to vote at the meeting, arranged in alphabetical order, and
showing the address of each stockholder and the number of shares
registered in the name of each stockholder. Such list shall be open to
the examination of any stockholder, for any purpose germane to the
meeting, during ordinary business hours, for a period of at least ten
days prior to the meeting, either at a place within the city where the
meeting is to be held, which place shall be specified in the notice of
the meeting,(21) or if not so specified, at the place where the meeting
is to be held. The list shall also be produced and kept at the time and
place of the meeting during the whole time thereof, and may be inspected
by any stockholder who is present.
SECTION 2.4. Special Meeting. Special meetings of the stockholders, for
any purpose or purposes, unless otherwise prescribed by statute or by the
Restated Certificate of Incorporation of the corporation (the
''Certificate of Incorporation''), may be called only by the persons
specified in the Certificate of Incorporation. The officers or directors
shall fix the time and any place, either within or without the State of
Delaware, as the place for holding such meeting.(21)
SECTION 2.5. Notice of Meeting. Written notice of the annual, and each
special meeting of stockholders, stating the time, place and in the case
of special meetings, the(17) purpose or purposes thereof, shall be given
to each stockholder entitled to vote thereat, not less than ten nor more
than 60(7) days before the meeting.
* Through March 1, 1995. Neither the footnote references, the footnotes,
nor the Officer's Certificate appended hereto, are a part of these
by-laws, as amended.
SECTION 2.6. Quorum. The holders of a majority of the stock issued and
outstanding and entitled to vote thereat, present in person or represented
by proxy, shall constitute a quorum at any meeting of stockholders for the
transaction of business except when stockholders are required to vote by
class, in which event a majority of the issued and outstanding shares of
the appropriate class shall be present in person or by proxy, and(2)
except as otherwise provided by statute or by the Certificate of
Incorporation. Notwithstanding any other provisions of the Certificate
of Incorporation or these by-laws, the holders of a majority of the
shares of capital stock entitled to vote thereat, present in person or
represented by proxy, whether or not a quorum is present, shall have
power to adjourn the meeting from time to time, without notice other
than announcement at the meeting, until a quorum shall be present or
represented. If the adjournment is for more than 30 days, or if after
the adjournment a new record date is fixed for the adjourned meeting, a
notice of the adjourned meeting shall be given to each stockholder of
record entitled to vote at the meeting. At such adjourned meeting at
which a quorum shall be present or represented, any business may be
transacted which might have been transacted at the meeting as originally
notified.
SECTION 2.7. Voting. When a quorum is present at any meeting of the
stockholders, the vote of the holders of a majority of the stock having
voting power present in person or represented by proxy shall decide any
question brought before such meeting, unless the question is one upon
which, by express provision of the statutes, of the Certificate of
Incorporation or of these by-laws, a different vote is required, in
which case such express provision shall govern and control the decision
of such question. Every stockholder having the right to vote shall be
entitled to vote in person, or by proxy appointed by an instrument in
writing subscribed by such stockholder, bearing a date not more than one
year(2) prior to voting(2) and filed with the Secretary of the Corporation
before, or at the time of, the meeting. If such instrument shall
designate two or more persons to act as proxies, unless such instrument
shall provide the contrary, a majority of such persons present at any
meeting at which their powers thereunder are to be exercised shall have
and may exercise all the powers of voting(21) thereby conferred, or if
only one be present, then such powers may be exercised by that one; or,
if an even number attend and a majority do not agree on any particular
issue, each proxy so attending shall be entitled to exercise such powers
in respect of the same portion of the shares as he is of the proxies
representing such shares. Unless required by statute or determined by
the Chairman of the Meeting to be advisable, the vote on any question
need not be by written ballot.(2)
SECTION 2.8. Consent of Stockholders. Any action required or permitted
to be taken by the stockholders of the corporation must be effected at a
duly called annual or special meeting of stockholders of the corporation
and may not be effected by a consent in writing by such stockholders.(21)
SECTION 2.9. Voting of Stock of Certain Holders. Shares standing in
the name of another corporation, domestic or foreign, may be voted by
such officer, agent or proxy as the by-laws of such corporation may
prescribe, or in the absence of such provision, the Board of Directors
of such corporation may determine. Shares standing in the name of a
deceased person may be voted by the executor or administrator of such
deceased person, either in person or by proxy.(17) Shares standing in
the name of a receiver may be voted by such receiver. A stockholder
whose shares are pledged shall be entitled to vote such shares, unless
in the transfer by the pledgor on the books of the corporation, he has
expressly empowered the pledgee to vote thereon, in which case only the
pledgee, or his proxy, may represent such(21) stock and vote thereon.
SECTION 2.10. Treasury Stock. The corporation shall not vote, directly
or indirectly, shares of its own stock owned by it; and such shares shall
not be counted in determining the total number of outstanding shares.
SECTION 2.11. Fixing Record Date. The Board of Directors may fix in
advance a date, not exceeding 60 nor less than 10(2) days preceding the
date of any meeting of stockholders, or the date for payment of any
dividend or distribution, or the date for the allotment of rights, or
the date when any change or conversion or exchange of capital stock
shall go into effect,(21) as a record date for the determination of the
stockholders entitled to notice of, and to vote at, any such meeting
and any adjournment thereof, or entitled to receive payment of any such
dividend or distribution, or to receive any such allotment of rights, or
to exercise the rights in respect of any such change, conversion or
exchange of capital stock,(21) and in such case such stockholders and
only such stockholders as shall be stockholders of record on the date so
fixed shall be entitled to such notice of and to vote at, any such meeting
and any adjournment thereof, or to receive payment of such dividend or
distribution, or to receive such allotment of rights, or to exercise such
rights,(21) as the case may be notwithstanding any transfer of any stock on
the books of the corporation after any such record date fixed as aforesaid.
SECTION 2.12. Notification of Nominations. Subject to the rights of
holders of Preferred Stock, nominations for the election of directors may
be made by the Board of Directors or the Nominating Committee, as provided
in Section 4.4, or by any stockholder entitled to vote in the election of
directors generally. However, any stockholder entitled to vote in the
election of directors generally may nominate one or more persons for
election as directors at a meeting only if written notice of such
stockholder's intent to make such nomination or nominations has been
given, either by personal delivery or by United States mail, postage
prepaid, to the Nominating Committee, at the address of the corporation's
principal executive offices, not later than (i) with respect to an
election to be held at an annual meeting of stockholders, 90(27) days in
advance of the date of the corporation's proxy statement released to
stockholders in connection with the previous year's annual meeting of
stockholders, and (ii) with respect to an election to be held at a
special meeting of stockholders for the election of directors, the close
of business on the seventh day following the date on which notice of such
meeting is first given to stockholders. Each such notice shall set forth:
(a) the name and address of the stockholder who intends to make the
nomination and of the person or persons to be nominated; (b) a
representation that the stockholder is a holder of record of stock of the
corporation at the time of giving such notice, will be a holder of record
entitled to vote at such meeting and intends to appear in person or by
proxy at the meeting to nominate the person or persons specified in the
notice; (c) a description of all arrangements or understandings between
the stockholder and each nominee and any other person or persons (naming
such person or persons) pursuant to which the nomination or nominations
are to be made by the stockholder; (d) such other information regarding
each nominee proposed by such stockholder as would be required to be
included in a proxy statement filed pursuant to the proxy rules of the
Securities and Exchange Commission, had the nominee been nominated, or
intended to be nominated by the Board of Directors or Nominating
Committee; and (e) the consent of each nominee to serve as a director
of the corporation if so elected. The chairman of the meeting may refuse
to acknowledge the nomination of any person not made in compliance with
the foregoing procedures.(21)
ARTICLE III
Board of Directors
SECTION 3.1. Powers. The business and affairs of the corporation shall
be managed by its Board of Directors, which may exercise all such powers
of the corporation and do all such lawful acts and things as are not by
statute or by the Certificate of Incorporation(17) directed or required
to be exercised or done by the stockholders.
SECTION 3.2. Number, Election and Term. The number of directors which
shall constitute the whole Board shall be determined as provided in the
Certificate of Incorporation. Such number of directors shall, from time
to time, be fixed and determined by the directors and shall be set forth
in the notice of any meeting of stockholders held for the purpose of
electing directors. The directors shall be elected at the annual meeting
of stockholders, except as provided in Section 3.3, and each director
elected shall hold office until his successor shall be elected and shall
qualify or until his earlier resignation or removal. Directors need not
be residents of Delaware or stockholders of the corporation.(21)
SECTION 3.3. Vacancies, Additional Directors and Removal From Office.
If any vacancy occurs in the Board of Directors caused by death,
resignation, retirement, disqualification or removal from office of
any director, or otherwise, or if any new directorship is created by an
increase in the authorized number of directors, a majority of the
directors then in office, though less than a quorum, or a sole remaining
director, may choose a successor or fill the newly created directorship;
and a director so chosen shall hold office until the end of the term he
is chosen to fill and until his successor shall be duly elected and shall
qualify, or until his earlier resignation or removal. Any director may be
removed from office as a director only as provided in the Certificate of
Incorporation.(21)
SECTION 3.4. Regular Meeting. A regular meeting of the Board of
Directors shall be held each year, without other notice than this by-law,
at the place of, and immediately following, the annual meeting of
stockholders; and other regular meetings of the Board of Directors shall
be held during(9) each year, at such time and place as the Board of
Directors may from time to time(9) provide, by resolution, either within
or without the State of Delaware, without other notice than such
resolution.
SECTION 3.5. Special Meeting. A special meeting of the Board of
Directors may be called by the Chairman of the Board(9,20) and shall be
called by the Secretary on the written request of any two directors.
The Chairman of the Board(20) so calling, or the directors so requesting,
any such meeting shall fix the time and any place, either within or
without the State of Delaware, as the place for holding such meeting.
SECTION 3.6. Notice of Special Meeting. Notice(21) of special meetings
of the Board of Directors shall be given to each director at least 48
hours prior to the time of such meeting. Any director may waive notice of
any meeting. The attendance of a director at any meeting shall constitute
a waiver of notice of such meeting, except where a director attends a
meeting for the purpose of objecting to the transaction of any business
because the meeting is not lawfully called or convened. Neither the
business to be transacted at, nor the purpose of, any special meeting of
the Board of Directors need be specified in the notice or waiver of
notice of such meeting, except that notice shall be given of any proposed
amendment to the by-laws if it is to be adopted at any special meeting or
with respect to any other matter where notice is required by statute.
SECTION 3.7. Quorum. A majority of the Board of Directors shall
constitute a quorum for the transaction of business at any meeting of the
Board of Directors, and the act of a majority of the directors present
at any meeting at which there is a quorum shall be the act of the Board
of Directors, except as may be otherwise specifically provided by statute,
by the Certificate of Incorporation or by these by-laws. If a quorum
shall not be present at any meeting of the Board of Directors, the
directors present thereat may adjourn the meeting from time to time
without notice other than announcement at the meeting, until a quorum
shall be present.
SECTION 3.8. Action Without Meeting. Unless otherwise restricted by the
Certificate of Incorporation or these by-laws, any action required or
permitted to be taken at any meeting of the Board of Directors, or of any
committee thereof as provided in Article IV of these by-laws, may be taken
without a meeting, if a written consent thereto is signed by all members
of the Board or of such committee, as the case may be, and such written
consent is filed with the minutes of proceedings of the Board or committee.
SECTION 3.9. Meeting by Telephone. Any action required or permitted to
be taken by the Board of Directors or any committee thereof may be taken
by means of a meeting by conference telephone or similar communications
equipment so long as all persons participating in the meeting can hear
each other. Any person participating in such meeting shall be deemed to
be present in person at such meeting.
SECTION 3.10.(22) Compensation. Directors, as such, shall not be
entitled to any stated salary for their services unless voted by the
stockholders, the Board of Directors or the Compensation Committee of
the Board of Directors; but by resolution of the Board of Directors or
the Compensation Committee of the Board of Directors, a fixed sum and
expenses of attendance, if any, may be allowed for attendance at each
regular or special meeting of the Board of Directors or any meeting of
a committee of directors. No provision of these by-laws shall be
construed to preclude any director from serving the corporation in any
other capacity and receiving compensation therefor.
ARTICLE IV
Committees(9) of Directors
SECTION 4.1. Executive Committee. The Executive Committee of the Board
of Directors (the ''Executive Committee'') shall consist of not less than
three directors to be designated by the Board of Directors annually at its
first regular meeting held pursuant to Section 3.4 of these by-laws after
the annual meeting of stockholders or as soon thereafter as conveniently
possible. None of the members of the Executive Committee need be officers
of the corporation. The Executive Committee shall have and may exercise
all of the powers of the Board of Directors during the period between
meetings of the Board of Directors except as reserved to the Board of
Directors or as delegated by these by-laws or by the Board of Directors
to another standing or special committee or as may be prohibited by law
and, except further, that the Executive Committee shall not have the power
to elect officers of the corporation. The Chairman of the Board shall be
a member of the Executive Committee.(16)
SECTION 4.2.(12) Compensation Committee. The Compensation Committee of
the Board of Directors (the ''Compensation Committee'') shall consist of
at least two(25) directors, all(25) of whom shall be ''outside'' directors
of the corporation, to be designated annually by the Board of Directors at
its first regular meeting held pursuant to Section 3.4 of these by-laws
after the annual meeting of stockholders or as soon thereafter as
conveniently possible. The term ''outside'' director, as used in this
Section 4.2, shall mean a director of the corporation who is(17,21,26)
free of any relationship that, in the opinion of the Board of Directors,
would interfere with the designated director's exercise of independent
judgment as a member of the Compensation Committee. The Compensation
Committee shall have and may exercise all of the powers of the Board of
Directors during the period between meetings of the Board of Directors,
except as may be prohibited by law, with respect to (i) studying,
recommending, adopting, implementing, administering, determining and
authorizing the amount, terms, and conditions of payment of any and
all forms of compensation for the corporation's directors, officers,
employees and agents, (ii) approving and administering any loan to,
guarantee of any obligation of, or other assistance to any officer or
other employee of the corporation or any of its subsidiaries, including
any officer or employee who is a director of the corporation or any of its
subsidiaries, and (iii) implementing and administering those qualified,
nonqualified, or other stock option or purchase plans of the corporation,
as designated by the Board of Directors.
SECTION 4.3.(12) Audit Committee. The Audit Committee of the Board of
Directors (the ''Audit Committee'') shall consist solely of directors,
not less than three, all of whom shall be ''outside'' directors of the
corporation, to be designated annually by the Board of Directors at its
first regular meeting held pursuant to Section 3.4 of these by-laws after
the annual meeting of stockholders or as soon thereafter as conveniently
possible. The term ''outside'' director, as used in this Section 4.3,
shall mean a director of the corporation who is(17,26) free of any
relationship that, in the opinion of the Board of Directors, would
interfere with the designated director's exercise of independent judgment
as a member of the Audit Committee. The Audit Committee shall have and
may exercise all of the powers of the Board of Directors during the period
between meetings of the Board of Directors, except as may be prohibited by
law, with respect to (i) the selection and recommendation for employment
by the corporation, subject to approval by the Board of Directors and the
stockholders, of a firm of certified public accountants whose duty it
shall be to audit the books and accounts of the corporation and its
subsidiaries for the fiscal year in which they are appointed and who shall
report to the Audit Committee, provided, that in selecting and recommending
for employment any firm of certified public accountants, the Audit
Committee shall make a thorough investigation to ensure the ''independence''
of such accountants as defined in the applicable rules and regulations of
the Securities and Exchange Commission; (ii) instructing the certified
public accountants to expand the scope and extent of the annual audits of
the corporation into areas of any concern to the Audit Committee, which
may be beyond that necessary for the certified public accountants to report
on the financial statements of the corporation and, at its discretion,
directing other special investigations to ensure the objectivity of the
financial reporting of the corporation; (iii) reviewing the reports
submitted by the certified public accountants, conferring with the auditors
and reporting thereon to the Board of Directors with such recommendations
as the Audit Committee may deem appropriate; (iv) meeting with the
corporation's principal accounting and financial officers, the certified
public accountants and auditors, and other officers or department
managers of the corporation as the Audit Committee shall deem necessary in
order to determine the adequacy of the corporation's accounting principles
and financial and operating policies, controls and practices, its public
financial reporting principles and practices, and the results of the
corporation's annual audit; (v) conducting inquiries into any of the
foregoing, the underlying and related facts, including such matters as the
conduct of the personnel of the corporation, the integrity of the records
of the corporation, the adequacy of the procedures and the legal and
financial consequences of such facts; and (vi) retaining and deploying
such professional assistance, including outside counsel and auditors and
any others, as the Audit Committee shall deem necessary or appropriate,
in connection with the exercise of its powers on such terms as the Audit
Committee shall deem necessary or appropriate to protect the interests of
the stockholders of the corporation.
SECTION 4.4.(18) Nominating Committee. The Nominating Committee of the
Board of Directors (the ''Nominating Committee'') shall consist of at
least three directors all of whom shall be ''outside'' directors of the
corporation,(26) all to be designated annually by the Board of Directors
at its first regular meeting held pursuant to Section 3.4 of these by-laws
after the annual meeting of stockholders or as soon thereafter as
conveniently possible. The term ''outside'' director, as used in this
Section 4.4, shall mean a director of the corporation who is(26) free of
any relationship that, in the opinion of the Board of Directors, would
interfere with the designated director's exercise of independent judgment
as a member of the Nominating Committee.(26) The Nominating Committee
shall have and may exercise all of the powers of the Board of Directors
during the period between meetings of the Board of Directors, except as
may be prohibited by law, with respect to (i) recommending to the whole
Board of Directors(26) the nominees for election as directors at the
annual meetings of stockholders; (ii) searching for, evaluating and
recommending(26) to the whole Board of Directors directors to fill
vacancies and newly created directorships resulting from any increase
in the authorized number of directors; (iii) recruitment of potential
director candidates; (iv) recommending to the whole Board of Directors
changes in the responsibilities, composition, size and committee structure
of the Board of Directors; (v) review of the composition and membership
of each of the standing committees and special committees of the Board of
Directors; (vi) selection of the membership of the proxy committee charged
with voting solicited proxies at stockholder meetings; (vii) review of
proxy comments received from stockholders relating directly or indirectly
to the Board of Directors, its composition and duties; (viii) review of
stockholder suggestions as to nominees for directorships that are submitted
in writing to the Nominating Committee, at the address of the company's
principal executive offices, not less than 90 days in advance of the date
of the company's proxy statement released to stockholders in connection
with the previous year's annual meeting of stockholders; and (ix) retaining
and deploying such professional assistance as the Nominating Committee
shall deem necessary or appropriate, in connection with the exercise of
its powers on such terms as the Nominating Committee shall deem necessary
or appropriate, to protect the interests of the stockholders of the
corporation.(17)
SECTION 4.5.(18,28) Corporate Responsibility Committee. The Corporate
Responsibility Committee of the Board of Directors (the ''Corporate
Responsibility Committee'') shall consist solely of directors, not less
than three, all of whom shall be ''outside'' directors of the Company,
to be designated annually by the Board of Directors at its first regular
meeting held pursuant to Section 3.4 of these by-laws after the annual
meeting of stockholders or as soon thereafter as conveniently possible.
The term ''outside'' director, as used in this Section, shall mean a
director of the corporation who is free of any relationship that, in the
opinion of the Board of Directors, would interfere with the designated
director's exercise of independent judgment as a member of the Corporate
Responsibility Committee. The Corporate Responsibility Committee shall
have and may exercise all of the powers of the Board of Directors during
the period between meetings of the Board of Directors, except as may
be prohibited by law, with respect to (i) surveying, monitoring and guiding
the corporation's role in the fulfillment of its social responsibilities
toward its shareholders, employees and the general public in the conduct
of its normal business activities; (ii) reporting to the Board of Directors
with respect to the foregoing; and (iii) retaining and deploying such
professional assistance as the Corporate Responsibility Committee shall
deem reasonably necessary or appropriate, in connection with the exercise
of its powers on such terms as the Corporate Responsibility Committee
shall deem reasonably necessary or appropriate to protect the interests
of the corporation and its stockholders.
SECTION 4.6.(24) Finance Committee. The Finance Committee of the Board
of Directors (the ''Finance Committee'') shall consist solely of not less
than three directors, all to be designated annually by the Board of
Directors at its first regular meeting held pursuant to Section 3.4 of
these by-laws after the annual meeting of the stockholders or as soon
thereafter as conveniently possible. If a director of the corporation,
the corporate officer who is designated the Chief Financial Officer of
the corporation shall be a member of the Finance Committee. None of the
members of the Finance Committee, other than the Chief Financial Officer,
need be officers of the corporation. The Finance Committee shall have and
may exercise all of the powers of the Board of Directors during the period
between meetings of the Board of Directors or the Executive Committee,
except as reserved by the Board of Directors, or as otherwise delegated
by these by-laws or from time to time by resolutions duly adopted by the
Board of Directors or the Executive Committee, or as may be prohibited by
law, with respect to (i) the long-term financial planning of the
corporation; (ii) reviewing the capital requirements and other financial
needs of the corporation; (iii) exploring sources and alternatives for
meeting such requirements and needs; (iv) making recommendations to the
Board of Directors or the Executive Committee regarding authorizing the
borrowing of funds or the issuance of debt or equity securities by the
corporation, its subsidiaries or affiliates; (v) authorizing the borrowing
of funds, the issuance of debt securities, guarantees of obligations or
other financial transactions of the corporation, its subsidiaries or
affiliates, upon such terms and conditions as from time to time determined
by the Finance Committee acting under such authority as may from time to
time be expressly delegated by resolution duly adopted by the Board of
Directors or the Executive Committee; (vi) overseeing and reviewing the
finances and Financial Department of the corporation to the extent such
oversight and review may be necessary or advisable to supplement that of
the Executive Committee and the Audit Committee; (vii) overseeing and
reviewing the administration and results of operations of the
''Browning-Ferris Industries, Inc. Retirement Plan'', as amended (the
''Plan''), the ''Browning-Ferris Industries, Inc. Canadian Retirement
Plan (the ''Canadian Plan'') and any other pension benefit or retirement
plan or arrangement maintained by any subsidiary of the Company (the
''Subsidiary Plan''), the Plan, Canadian Plan and Subsidiary Plan being
referred to collectively as the ''Pension Plans'', and further to
acquaint the Board of Directors with the Finance Committee's oversight
and surveillance activities in connection with the Pension Plans;(28)
(viii)(28) appointing ex officio members of the Finance Committee;
(ix)(28) retaining and deploying such professional assistance, including
outside investment bankers, financial consultants and any others, as the
Finance Committee shall deem reasonably necessary or appropriate, in
connection with the exercise of its powers on such terms as the Finance
Committee shall deem reasonably necessary or appropriate to protect the
interests of the corporation and its stockholders.
SECTION 4.7.(12,18,20,24) Designation, Powers and Name. The Board of
Directors may, by resolution passed by a majority of the whole Board,
designate one or more additional special or standing(9) committees other
than the Executive Committee, Compensation Committee, Audit Committee,(11)
Nominating Committee, Corporate Responsibility Committee(28) and Finance
Committee,(24) each such additional(9) committee to consist of two or more
of the directors of the corporation. The committee shall have and may
exercise such of the powers of the Board of Directors in the management of
the business and affairs of the corporation as may be provided in such
resolution, except as delegated by these by-laws or by the Board of
Directors to another standing or special committee or as may be prohibited
by law.(9)
SECTION 4.8.(12,18,24) Committee Operations. A majority of a committee
shall constitute a quorum for the transaction of any committee business.
Such committee or committees shall have such name or names and such
limitations of authority as provided in these by-laws or as(9) may be
determined from time to time by resolution adopted by the Board of
Directors. The corporation shall pay all expenses of committee
operations.(9) The Board of Directors may designate one or more
appropriate(9) directors as alternate members of any committee, who may
replace any absent or disqualified member at any meeting of such committee.
In the absence or disqualification of any members of such committee or
committees, the member or members thereof present at any meeting and not
disqualified from voting, whether or not he or they constitute a quorum,
may unanimously appoint another appropriate(9) member of the Board of
Directors to act at the meeting in the place of any absent or disqualified
member.
SECTION 4.9.(12,18,24) Minutes. Each committee of directors shall keep
regular minutes of its proceedings and report the same to the Board of
Directors when required. The Secretary or any Assistant Secretary of the
corporation shall (i) serve as the Secretary of the Executive Committee(20)
and any other special or standing committee of the Board of Directors of
the corporation, (ii) keep regular minutes of standing or special committee
proceedings, (iii) make available to the Board of Directors, as required,
copies of all resolutions adopted or minutes or reports of other actions
recommended or taken by any such standing or special committee and
(iv) otherwise as requested keep the members of the Board of Directors
apprised of the actions taken by such standing or special committees.(9)
SECTION 4.10.(12,18,24) Compensation. Members of special or standing
committees who are ''outside'' directors,(9) as that term is defined
elsewhere in this Article, may be allowed compensation for serving as a
member of any such committee and all members may be compensated for
expenses of(9) attending committee meetings, if the Board of Directors
shall so determine.
ARTICLE V
Notice
SECTION 5.1. Methods of Giving Notice. Whenever under the provisions of
the Delaware General Corporation Law,(21) the Certificate of Incorporation
or these by-laws, notice is required to be given to any director, member
of any committee or stockholder, such notice shall be in writing and
delivered personally or mailed to such director, member or stockholder;
provided that in the case of a director or a member of any committee such
notice may be given orally or by telephone or telegram. If mailed, notice
to a director, member of a committee or stockholder shall be deemed to be
given when deposited in the United States mail first class in a sealed
envelope, with postage thereon prepaid, addressed, in the case of a
stockholder, to the stockholder at the stockholder's address as it
appears on the records of the corporation or, in the case of a director
or a member of a committee, to such person at his business address.
If sent by telegraph, notice to a director or member of a committee shall
be deemed to be given when the telegram, so addressed, is delivered to the
telegraph company.
SECTION 5.2. Written Waiver. Whenever any notice is required to be given
under the provisions of the Delaware General Corporation Law,(21) the
Certificate of Incorporation or these by-laws, a waiver thereof in writing,
signed by the person or persons entitled to said notice, whether before or
after the time stated therein, shall be deemed equivalent thereto.
ARTICLE VI
Officers
SECTION 6.1. Officers. The officers of the corporation shall be Chairman
of the Board,(6,11) Vice Chairman,(19) President, one or more Vice
Presidents, any one or more of which may be designated Executive Vice
President or Senior Vice President, a Secretary and a Treasurer. The
Board of Directors may appoint such other officers and agents, including
but not limited to,(9) Assistant Vice Presidents, Assistant Secretaries
and Assistant Treasurers, as it shall deem necessary, who shall hold
their offices for such terms and shall exercise such powers and perform
such duties as shall be determined by the Board. Any two or more offices,
other than the offices of President and Secretary, may be held by the same
person. No officer shall execute, acknowledge, verify or countersign any
instrument on behalf of the corporation in more than one capacity, if
such instrument is required by law, by these by-laws or by any act of
the corporation to be executed, acknowledged, verified or countersigned
by two or more officers. The Chairman of the Board,(6,11) Vice Chairman
and President(20) shall be elected from among the directors. With the
foregoing exceptions, none of the other officers need be a director, and
none of the officers need be a stockholder of the corporation.
SECTION 6.2. Election and Term of Office. The officers of the
corporation shall be elected annually by the Board of Directors at its
first regular meeting held after the annual meeting of stockholders or as
soon thereafter as conveniently possible. Each officer shall hold office
until his successor shall have been chosen and shall have qualified or
until his death or the effective date of his resignation or removal, or
until he shall cease to be a director in the case of the Chairman of the
Board,(6,9,21) Vice Chairman or President.
SECTION 6.3. Removal and Resignation. Any officer or agent elected or
appointed by the Board of Directors may be removed without cause by the
affirmative vote of a majority of the Board of Directors whenever, in its
judgment, the best interests of the corporation shall be served thereby,
but such removal shall be without prejudice to the contractual rights,
if any, of the person so removed. Any officer may resign at any time by
giving written notice to the corporation. Any such resignation shall take
effect at the date of the receipt of such notice or at any later time
specified therein, and unless otherwise specified therein, the acceptance
of such resignation shall not be necessary to make it effective.
SECTION 6.4. Vacancies. Any vacancy occurring in any office of the
corporation by death, resignation, removal or otherwise, shall(15) be
filled by the Board of Directors for the unexpired portion of the term.
SECTION 6.5. Salaries. The salaries of all officers and agents of the
corporation shall be fixed by the Board of Directors or the Compensation
Committee(9) or pursuant to the(9) direction of the Board of Directors
or Compensation Committee(9); and no officer shall be prevented from
receiving such salary by reason of his also being a director.
SECTION 6.6. Chairman of the Board. The Chairman of the Board shall
preside at all meetings of the Board of Directors and of the stockholders
of the corporation. In the Chairman's absence, such duties shall be
attended to by the Vice Chairman(19) or the President.(11) The Chairman
of the Board shall be the chief executive officer of the corporation,
shall in general supervise and control the business and affairs of the
corporation,(11,15,20) shall perform such duties and possess such
powers(15) as usually pertain to the positions of chairman of the board
of directors and chief executive officer(15,20) and shall have(15) such
duties and possess such powers(15) as may be further prescribed by these
by-laws, the(15) Board of Directors or the Executive Committee. In the
absence of the President, or in the event of his inability or refusal to
act, the Chairman of the Board shall perform the duties and exercise the
powers of the President until such vacancy shall be filled in the manner
prescribed by these by-laws or by law.(15) The Chairman of the Board shall
formulate and submit to the Board of Directors or the Executive Committee
matters of general policy for the corporation.(15) He shall have the
power to appoint and remove subordinate officers, agents and employees,
except those elected or appointed by the Board of Directors.(9) He may
sign with the Secretary or any other officer of the corporation thereunto
authorized by the Board of Directors certificates for shares of the
corporation and any deeds, bonds, mortgages, contracts, checks, notes,
drafts or other instruments which the Board of Directors or the
Executive Committee(9) has authorized to be executed, except in cases
where the signing and execution thereof has been expressly delegated or
reserved(9) by these by-laws or by the Board of Directors or the Executive
Committee(9) to some other officer or agent of the corporation, or shall
be required by law to be otherwise executed. He shall vote, or give a
proxy to any other officer of the corporation to vote, all shares of
stock of any other corporation standing in the name of the corporation.
SECTION 6.7.(19) Vice Chairman. The Vice Chairman shall be the chief
marketing officer of the corporation and, subject to the control of the
Board of Directors, the Executive Committee and the Chairman of the
Board, shall in general supervise and control the marketing and corporate
development activities of the corporation. He shall have the power to
appoint and remove subordinate officers, agents and employees, except
those elected or appointed by the Board of Directors. The Vice Chairman
shall keep the Board of Directors, the Executive Committee and the
Chairman of the Board fully informed as they or any of them shall request
and shall consult with them concerning the marketing and corporate
development activities of the corporation. He may sign, with the Secretary
or any other officer of the corporation and others authorized by the Board
of Directors, certificates for shares of capital stock of the corporation
and any deeds, bonds, mortgages, contracts, checks, notes, drafts or other
instruments which the Board of Directors or the Executive Committee has
authorized to be executed except in cases where the signing and execution
thereof has been expressly delegated by these by-laws, the Board of
Directors or the Executive Committee to some other officer or agent of
the corporation, or shall be required by law to be otherwise executed.
In general, he shall perform all other duties normally incident to the
office of Vice Chairman, except any duties expressly delegated to other
persons by these by-laws, the Board of Directors, the Executive Committee,
or the Chairman of the Board, and such other duties as may be prescribed
by the stockholders, the Board of Directors, the Executive Committee, or
the Chairman of the Board from time to time.
SECTION 6.8.(10,11,20) President. The President shall be the chief
operating(15,20) officer of the corporation and, subject to the control of
the Board of Directors,(15) the Executive Committee,(15) and the Chairman
of the Board,(20) shall in general supervise and control the day-to-day
business operations of the corporation. He shall have the power to appoint
and remove subordinate officers, agents, and employees, except those
elected or appointed by the Board of Directors.(9,15) The President shall
keep the Board of Directors, the Executive Committee and the Chairman of
the Board(9) fully informed as they or any of them shall request(9) and
shall consult them concerning the business of the corporation. He may sign
with the Secretary or any other officer of the corporation thereunto
authorized by the Board of Directors, certificates for shares of capital
stock of the corporation and any deeds, bonds, mortgages, contracts,
checks, notes, drafts or other instruments which the Board of Directors
or the Executive Committee has authorized to be executed, except in cases
where the signing and execution thereof has been expressly delegated by
these by-laws or by the Board of Directors or the Executive Committee to
some other officer or agent of the corporation, or shall be required by
law to be otherwise executed. In general he shall perform all other
duties normally incident to the office of President, except any duties
expressly delegated to other persons by these by-laws, the Board of
Directors, the Executive Committee or the Chairman of the Board,(20) and
such other duties as may be prescribed by the stockholders,(9,15) the
Board of Directors, the Executive Committee or the Chairman of the
Board(20) from time to time.
SECTION 6.9.(10,11,20) Vice Presidents.(15) Any Vice President
(including any Vice Presidents designated by the Board of Directors as
an Executive Vice President or as a Senior Vice President)(15,20) may
sign, with the Secretary or any Assistant Secretary, certificates for
shares of capital stock of the corporation. The Vice Presidents shall
perform such other duties as from time to time may be assigned to them
by the Chairman of the Board,(9,20) the Board of Directors or the
Executive Committee.
SECTION 6.10.(10,11,20) Secretary. The Secretary shall (a) keep the
minutes of the meetings of the stockholders, the Board of Directors and
committees of directors; (b) see that all notices are duly given in
accordance with the provisions of these by-laws and as required by law;
(c) be custodian of the corporate records and of the seal of the
corporation, and see that the seal of the corporation or a facsimile
thereof is affixed to all certificates for shares prior to the issue
thereof and to all documents, the execution of which on behalf of the
corporation under its seal is duly authorized in accordance with the
provisions of these by-laws; (d) keep or cause to be kept a register of
the post office address of each stockholder which shall be furnished by
such stockholder; (e) sign with the Chairman of the Board,(11) Vice
Chairman,(19) President, or a Vice President, certificates for shares
of the corporation, the issue of which shall have been authorized by
resolution of the Board of Directors(9); (f) have general charge of the
stock transfer books of the corporation; and (g) in general, perform
all duties normally incident to the office of Secretary and such other
duties as from time to time may be assigned to him by the Chairman of
the Board,(11,20) the Board of Directors or the Executive Committee.
SECTION 6.11.(10,11,20) Treasurer. If required by the Board of
Directors or the Executive Committee, the Treasurer shall give a bond for
the faithful discharge of his duties in such sum and with such surety or
sureties as the Board of Directors or the Executive Committee shall
determine. He shall (a) have charge and custody of and be responsible
for all funds and securities of the corporation; receive and give receipts
for monies due and payable to the corporation from any source whatsoever
and deposit all such monies in the name of the corporation in such banks,
trust companies or other depositories as shall be selected in accordance
with the provisions of Section 7.3 of these by-laws; (b) prepare, or cause
to be prepared, for submission at each regular meeting of the Board of
Directors, at each annual meeting of the stockholders, and at such other
times as may be required by the Board of Directors, the Chairman of the
Board,(11,20) the Executive Committee, or as may be required by law,(17)
a statement of financial condition of the corporation in such detail as
may be required; (c) have the power to sign stock certificates to the
full extent permitted by law,(17) and (d17) in general, perform all the
duties incident to the office of Treasurer and such other duties as from
time to time may be assigned to him by the Chairman of the Board,(11,20)
the Board of Directors or the Executive Committee.
SECTION 6.12.(10,11,20) Assistant Secretary or Assistant(17) Treasurer.
The Assistant Secretaries and Assistant Treasurers shall, in general,
perform such duties as shall be assigned to them by the Secretary or the
Treasurer, respectively, or by the Chairman of the Board,(11,20) the Board
of Directors or the Executive Committee. The Assistant Secretaries and
Assistant Treasurers shall, in the absence of the Secretary or Treasurer,
respectively, perform all functions and duties which such absent officers
may delegate, but such delegation shall not relieve the absent officer
from the responsibilities and liabilities of his office. The Assistant
Secretaries and Assistant Treasurers(20) may sign, with the Chairman of
the Board,(11) the Vice Chairman,(19) the President or a Vice President,
certificates for shares of the corporation, the issue of which shall have
been authorized by a resolution of the Board of Directors.(9) The
Assistant Treasurers shall respectively, if required by the Board of
Directors or the Executive Committee, give bonds for the faithful
discharge of their duties in such sums and with such sureties as the
Board of Directors or the Executive Committee(9) shall determine.
ARTICLE VII
Contracts, Checks and Deposits
SECTION 7.1. Contracts. Subject to the provisions of Section 6.1, the
Board of Directors or the Executive Committee may authorize any officer,
officers, agent or agents, to enter into any contract or execute and
deliver an instrument in the name of and on behalf of the corporation,
and such authority may be general or confined to specific instances.
SECTION 7.2. Checks, etc. All checks, demands, drafts or other orders
for the payment of money, notes or other evidences of indebtedness issued
in the name of the corporation, shall be signed by such officer or officers
or such agent or agents of the corporation, and in such manner, as shall be
determined by the Board of Directors or the Executive Committee.
SECTION 7.3. Deposits. All funds of the corporation not otherwise
employed shall be deposited from time to time to the credit of the
corporation in such banks, trust companies or other depositories as the
Chairman of the Board, President or Treasurer may be empowered by the
Board of Directors or Executive Committee to select or(9) as the Board
of Directors or the Executive Committee may select.
ARTICLE VIII
Certificate of Stock
SECTION 8.1. Issuance. Each Stockholder of this corporation shall be
entitled to a certificate or certificates showing the number of shares
of stock registered in his name on the books of the corporation. The
certificate shall be in such form as may be determined by the Board of
Directors or the Executive Committee, and shall be issued in numerical
order and shall be entered in the books of the corporation as they are
issued. They shall exhibit the holder's name and the number of shares
and shall be signed by the Chairman of the Board, the Vice Chairman,(19)
the President or a Vice President and by the Secretary,(17) an Assistant
Secretary, the Treasurer or an Assistant Treasurer.(17) Any of or all
the signatures on the certificate may be a facsimile(4). If the
corporation shall be authorized to issue more than one class of stock
or more than one series of any class, the designation, preferences and
relative, participating, optional or other special rights of each class
of stock or series thereof and the qualifications, limitations or
restrictions of such preference and rights shall be set forth in full
or summarized on the face or back of the certificate which the corporation
shall issue to represent such class of stock; provided that, except as
otherwise provided by statute, in lieu of the foregoing requirements there
may be set forth on the face or back of the certificate which the
corporation shall issue to represent such class or series of stock, a
statement that the corporation will furnish to each Stockholder who so
requests the designations, preferences and relative, participating,
optional or other special rights of each class of stock or series thereof
and the qualifications, limitations or restrictions of such preferences
and rights. All certificates surrendered to the corporation for transfer
shall be cancelled and no new certificate shall be issued until the former
certificate for a like number of shares shall have been surrendered and
cancelled, except that in the case of a lost, stolen, destroyed or
mutilated certificate, a new one may be issued therefore upon such terms
and with such indemnity, if any, to the corporation as the Board of
Directors(9) may prescribe. Certificates may be issued representing
fractional shares of stock.
SECTION 8.2. Lost Certificates. The Board of Directors(9) may direct
that a new certificate or certificates be issued in place of any
certificate or certificates theretofore issued by the corporation alleged
to have been lost, stolen or destroyed.(17) When authorizing such issue
of a new certificate or certificates, the Board of Directors(9) may, in
its discretion and as a condition precedent to the issuance thereof,
require the owner of such lost, stolen or destroyed certificate or
certificates, or his legal representative,(17) to give the corporation
a bond in such sum as it may direct as indemnity against any claim that
may be made against the corporation with respect to the certificate or
certificates alleged to have been lost, stolen or destroyed, or both.
SECTION 8.3. Transfers. Upon surrender to the corporation or the
transfer agents of the corporation of a certificate for shares duly
endorsed or accompanied by proper evidence of succession, assignment or
authority to transfer, it shall be the duty of the corporation to issue
a new certificate to the person entitled thereto, cancel the old
certificate and record the transaction upon its books. Transfers of
shares shall be made only on the books of the corporation by the
registered holder thereof, or by his attorney thereunto authorized by
power of attorney and filed with the Secretary of the corporation or the
transfer agents.
SECTION 8.4. Registered Stockholders. The corporation shall be entitled
to treat the holder of record of any share or shares of stock as the
holder in fact thereof and, accordingly, shall not be bound to recognize
any equitable or other claim to or interest in such share or shares on
the part of any other person, whether or not it shall have express or
other notice thereof, except as otherwise provided by the laws of the
State of Delaware.
ARTICLE IX
Dividends
SECTION 9.1. Declaration. Dividends upon the capital stock of the
corporation, subject to the provisions of the Certificate of Incorporation,
if any, may be declared by the Board of Directors(9) at any regular or
special meeting, pursuant to law. Dividends may be paid in cash, in
property or in shares of capital stock, subject to the provisions of the
Certificate of Incorporation.
SECTION 9.2. Reserve. Before payment of any dividend, there may be set
aside out of any funds of the corporation available for dividends such
sum or sums as the Board of Directors(9)from time to time, in their
absolute discretion, think proper as a reserve or reserves to meet
contingencies, or for equalizing dividends, or for repairing or
maintaining any property of the corporation, or for such other purpose
as the Board of Directors(9) shall think conducive to the interest of
the corporation, and the Board of Directors(9) may modify or abolish any
such reserve in the manner in which it was created.
ARTICLE X
Indemnification
SECTION 10.1. Third Party Actions. The corporation shall indemnify any
person who was or is a party or is threatened to be made a party to, or
otherwise becomes involved in(25), any threatened, pending or completed
action, suit or proceeding, whether civil, criminal, administrative or
investigative (formal or informal)(25), other than an action by or in
the right of the corporation, by reason of the fact that he is or was a
director, officer, employee or agent of the corporation, or is or was
serving at the request of the corporation as a director, officer,
employee or agent of another corporation, partnership, joint venture,
trust or other enterprise, against expenses (including attorneys' fees),
judgments, fines and amounts paid in settlement actually and reasonably
incurred by him in connection with such action, suit or proceeding if he
acted in good faith and in a manner he reasonably believed to be in or
not opposed to the best interests of the corporation, and, with respect
to any criminal action or proceeding, had no reasonable cause to believe
his conduct was unlawful. The termination of any action, suit or
proceeding by judgment, order, settlement(9), conviction, or upon a plea
of nolo contendere(9) or its equivalent, shall not, of itself, create a
presumption that the person did not act in good faith and in a manner
which he reasonably believed to be in or not opposed to the best interests
of the corporation, and, with respect to any criminal action or proceeding,
had reasonable cause to believe that his conduct was unlawful.
SECTION 10.2. Actions by or in the Right of the Corporation. The
corporation shall indemnify any person who was or is a party or is
threatened to be made a party to, or otherwise becomes involved in(25),
any threatened, pending or completed action or suit by or in the right
of the corporation to procure a judgment in its favor by reason of the
fact that he is or was a director, officer, employee or agent of the
corporation, or is or was serving at the request of the corporation as a
director, officer, employee or agent of another corporation, partnership,
joint venture, trust or other enterprise against expenses (including
attorneys' fees) actually and reasonably incurred by him in connection
with the defense or settlement of such action or suit if he acted in good
faith and in a manner he reasonably believed to be in or not opposed to
the best interests of the corporation and except that no indemnification
shall be made in respect of any claim, issue or matter as to which such
person shall have been adjudged to be liable(23) to the corporation
unless and only to the extent that the Delaware Court of Chancery or the
court in which such action or suit was brought shall determine upon
application that, despite the adjudication of liability but in view of
all the circumstances of the case, such person is fairly and reasonably
entitled to indemnity for such expenses which the Delaware Court of
Chancery or such other court shall deem proper.
SECTION 10.3.(13) Successful Defense. To the extent that a director,
officer, employee or agent of the corporation has been successful on the
merits or otherwise in defense of any action, suit or proceeding referred
to in Sections 10.1 and 10.2, or in defense of any claim, issue or matter
therein, he shall be indemnified against expenses (including attorneys'
fees) actually and reasonably incurred by him in connection therewith.
SECTION 10.4.(13) Determination of Conduct. Any idemnification under
Sections 10.1, 10.2 or 10.7 (unless ordered by a court) shall be made by
the corporation only as authorized in the specific case upon a
determination that indemnification of the director, officer, employee or
agent is proper in the circumstances because he has met the applicable
standard of conduct set forth in Sections 10.1 and 10.2.(9) Such
determination(9) shall be made (1) by the Board of Directors or the
Executive Committee(9) by a majority vote of a quorum consisting of
directors who were not parties to such action, suit or proceeding or(9)
(2) if such quorum is not obtainable or, even(9) if obtainable, a quorum
of disinterested directors so directs, by independent legal counsel in a
written opinion, or (3) by the stockholders.
SECTION 10.5.(13,21,23) Payment of Expenses in Advance. Expenses
incurred by an officer or director in defending a civil or criminal
action, suit or proceeding shall be paid by the corporation in advance of
the final disposition of such action, suit or proceeding upon receipt of an
undertaking by or on behalf of such director or officer(21) to repay such
amount if it shall ultimately be determined that he is not entitled to be
indemnified by the corporation as authorized in this Article X.
SECTION 10.6.(13,23) Indemnity Not Exclusive. The indemnification and
advancement of expenses provided by, or granted pursuant to, the other
provisions of this Article X, shall not be deemed exclusive of any other
rights to which a person seeking indemnification or advancement of
expenses may be entitled under any(17) by-law, agreement, vote of
stockholders or disinterested directors, or otherwise, both as to action
in his official capacity and as to action in another capacity while
holding such office.
SECTION 10.7.(14) The Corporation. For purposes of this Article X,
references to ''the corporation'' shall include, in addition to the
resulting corporation, any constituent corporation (including any
constituent of a constituent) absorbed in a consolidation or merger
which, if its separate existence had continued, would have had power
and authority to indemnify its directors, officers, and employees or
agents, so that any person who is or was a director, officer, employee
or agent of such constituent corporation, or is or was serving at the
request of such constituent corporation as a director, officer, employee
or agent of another corporation, partnership, joint venture, trust or
other enterprise, shall stand in the same position under and subject to
the provisions of this Article X (including, without limitation, the
provisions of Section 10.4) with respect to the resulting or surviving
corporation as he would have with respect to such constituent
corporation if its separate existence had continued.
SECTION 10.8.(3,13) Insurance Indemnification. The corporation shall
have the power to purchase and maintain insurance on behalf of any
person who is or was a director, officer, employee or agent of the
corporation, or is or was serving at the request of the corporation as a
director, officer, employee or agent of another corporation, partnership,
joint venture, trust or other enterprise against any liability asserted
against him and incurred by him in any such capacity, or arising out of his
status as such, whether or not the corporation would have the power to
indemnify him against such liability under the provisions of this Article X.
SECTION 10.9.(23) Heirs, Executors and Administrators. The indemnification
and advancement of expenses provided by Article X shall continue as to a
person who has ceased to be a director, officer, employee or agent of the
corporation and shall inure to the benefit of the heirs, executors and
administrators of such person.
ARTICLE XI
Miscellaneous
SECTION 11.1. Seal. The corporate seal shall have inscribed thereon the
name of the corporation, and the words ''Corporate Seal, Delaware''. The
seal may be used by causing it or a facsimile thereof to be impressed or
affixed or otherwise reproduced.
SECTION 11.2. Books. The books of the corporation may be kept (subject
to any provision contained in the statutes) outside the State of Delaware
at the offices of the corporation at Houston, Texas, or at such other
place or places as may be designed from time to time by the Board of
Directors or the Executive Committee.
ARTICLE XII
Amendment
The by-laws of the corporation may be adopted, amended or repealed at any
regular meeting of the Board of Directors without prior notice, or at any
special meeting of the Board of Directors if notice of such alteration,
amendment or repeal be contained in the notice of such special meeting,
except as provided in the Certificate of Incorporation(21).
------------------------------
OFFICER'S CERTIFICATE
The undersigned, ____________________________________ of Browning-Ferris
Industries, Inc., a Delaware corporation (the ''Corporation''), hereby
certifies that the above and foregoing is a true and correct copy of the
by-laws, as amended, of the Corporation in effect on the date of this
certificate.
[Seal]
Date:
- ------------------
FOOTNOTES
(1) Amended August 23, 1971.
(2) Amended November 19, 1971.
(3) Added November 19, 1971.
(4) Amended November 21, 1972.
(5) Amended December 12, 1972.
(6) Amended March 20, 1973.
(7) Amended December 2, 1975.
(8) Amended December 7, 1976.
(9) Amended June 7, 1977.
(10) Section 6.8 concerning ''Vice Chairman of the Board'' was deleted
by amendment adopted March 20, 1973, and Sections 6.9-.13 were
accordingly renumbered as 6.8-.12.
(11) Section 6.7 concerning ''Chairman of the Executive Committee'' was
deleted by amendment adopted June 18, 1976, and Sections 2.4, 4.1,
6.1, 6.6 and 6.8-.12 were amended to reflect the deletion and
Sections 6.8-.12 were accordingly renumbered as 6.7-.11.
(12) Sections 4.2 and 4.3 were added by amendment adopted June 7, 1977,
and Sections 4.2-.5 were accordingly renumbered as 4.4-.7.
When Sections 4.4 and 4.5 were added by amendment adopted
March 3, 1981, Sections 4.4-.7 were accordingly renumbered as
4.6-4.9.
(13) Section 10.3 was added by amendment adopted June 7, 1977, and
Sections 10.3-.7 were accordingly renumbered as 10.4-.8.
(14) Section 10.7 was originally adopted as Section 10.6 on
November 19, 1971, and amended in its entirety and renumbered as
Section 10.7 on June 7, 1977.
(15) Amended December 6, 1977.
(16) Amended December 1, 1980.
(17) Amended March 3, 1981.
(18) New Sections 4.4 and 4.5 were added by amendment adopted
March 3, 1981, and the following Sections 4.6 through 4.9 were
renumbered accordingly.
(19) The position of Vice Chairman was reintroduced to these by-laws by
the adoption of new Section 6.7 on December 6, 1982, and the
following sections were renumbered accordingly.
(20) Amended December 6, 1982.
(21) Amended March 6, 1985.
(22) Amended December 2, 1986.
(23) Amended March 4, 1987.
(24) Amended September 7, 1988.
(25) Amended March 6, 1991.
(26) Amended December 1, 1992.
(27) Amended March 3, 1993.
(28) Amended March 1, 1995. Included the addition of a new Section 4.5.
EXHIBIT 5.1
[BFI LETTERHEAD]
Edward C. Norwood
Divisional Vice President/
Associate General Counsel
Direct Line 870-7452
April 27, 1995
Browning-Ferris Industries, Inc.
757 N. Eldridge
Houston, Texas 77079
Ladies and Gentlemen:
In my capacity as Associate General Counsel of Browning-Ferris
Industries, Inc., a Delaware corporation (the "Company"), I have
participated in the registration under the Securities Act of 1933
(the "Act") of 10,000,000 shares of the Company's Common Stock,
$.16-2/3par value (the "Shares").
In connection therewith, I, or attorneys under my supervision, have
examined, among other things, the Restated Certificate of
Incorporation and the Bylaws of the Company, the corporate
proceedings with respect to the Shares and the Registration
Statement on Form S-4, filed by the Company with the Securities and
Exchange Commission for the registration of the Shares under the
Act (the Registration Statement as amended at the time when it
becomes effective being herein referred to as the "Registration
Statement").
Based upon the foregoing, and having due regard for such legal
considerations as I have deemed relevant, I am of the opinion that:
1. The Company is a corporation duly organized, validly existing
and in good standing under the laws of the State of Delaware;
2. The 10,000,000 Shares proposed to be issued by the Company
pursuant to the Registration Statement will be, when so issued
in accordance with due authorization by the Board of Directors
or the Executive Committee of the Company, legally issued,
fully paid and nonassessable.
I hereby consent to the filing of this opinion as an Exhibit to the
Registration Statement and to the reference to me under "Legal
Matters" in the Prospectus forming a part of the Registration
Statement.
Very truly yours,
/s/ Edward C. Norwood
EXHIBIT 23.2
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the
incorporation by reference in this Registration Statement on Form
S-4 of our report dated November 30, 1994, included in Browning-
Ferris Industries, Inc.'s Annual Report on Form 10-K for the year
ended September 30, 1994, and to all references to our Firm
included in this Registration Statement.
ARTHUR ANDERSEN LLP
Houston, Texas
April 27, 1995
EXHIBIT 23.3
CONSENT OF INDEPENDENT CHARTERED ACCOUNTANTS
As independent chartered accountants, we hereby consent to the
incorporation by reference in this Registration Statement on Form
S-4 of our report dated October 24, 1994 relating to the
consolidated financial statements of Attwoods plc for the year
ended July 31, 1994 included in the Current Report on Form 8-K
dated January 24, 1995, as amended by Form 8-K/A, filed by
Browning-Ferris Industries, Inc., and to all references to our firm
included in such Registration Statement.
/s/ Binder Hamlyn
Chartered Accountants
Registered Auditors
London, England
April 27, 1995
