AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON APRIL 27, 1995
REGISTRATION NO. 33-
----------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
-----------------------------
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
-----------------------------
BROWNING-FERRIS INDUSTRIES, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
DELAWARE 74-1673682
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER IDENTIFICATION NO.)
INCORPORATION OR ORGANIZATION)
757 N. ELDRIDGE
HOUSTON, TEXAS 77079
(713) 870-8100
(ADDRESS, INCLUDING ZIP CODES, 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)
-----------------------------
Copies to:
FULBRIGHT & JAWORSKI L.L.P. VINSON & ELKINS L.L.P.
1301 MCKINNEY STREET 1001 FANNIN STREET
HOUSTON, TEXAS 77010 2500 FIRST CITY TOWER
(713) 651-5421 HOUSTON, TEXAS 77002-6760
ATTN: ARTHUR H. ROGERS (713) 758-2128
ATTN: MICHAEL P. FINCH
-----------------------------
Approximate date of commencement of proposed sale to the public:
From time to time after this Registration Statement becomes effective.
-----------------------------
If the only securities being registered on this Form are to be offered
pursuant to dividend or interest reinvestment plans, please check the
following box. / /
If any of the securities being registered on this Form are to be
offered on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act of 1933, other than securities offered only in connection
with dividend or interest reinvestment plans, check the following box.
/X/
-----------------------------------------------------------------
CALCULATION OF REGISTRATION FEE
-----------------------------------------------------------------
PROPOSED PROPOSED
TITLE OF EACH MAXIMUM MAXIMUM
GLASS OF AMOUNT TO OFFERING AGGREGATE AMOUNT OF
SECURITIES TO BE PRICE PER OFFERING REGISTRATION
BE REGISTERED REGISTERED UNIT (1) PRICE (1) FEE
---------- ---------- ---------- -------------
Debt Securities (2)
Preferred Stock (3)
Common Stock, par
value $.16 2/3
per share (4)
Warrants (5)
Stock Purchase
Contracts (6)
Stock Purchase
Units(7)
Total $700,000,000(8) 100% $700,000,000(8) $241,380
- ----------------------------------------------------------------------------
(1) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(o).
(2) Subject to note (8) below, there are being registered hereunder an
indeterminate principal amount of Debt Securities as may be sold from
time to time by the Registrant, including sales upon the exercise of
Warrants. If any Debt Securities are being issued at an original
issue discount, then the offering price shall be in such greater
principal amount as shall result in an aggregate initial offering
price not to exceed $700,000,000, less the dollar amount of any
securities previously issued hereunder.
(3) Subject to note (8) below, there are being registered hereunder an
indeterminate number of shares of Preferred Stock as may be sold,
from time to time, by the Registrant, including sales upon exercise
of Warrants.
(4) Subject to note (8) below, there are being registered hereunder an
indeterminate number of shares of Common Stock as may be sold, from
time to time, by the Registrant, including sales upon exercise of
Warrants. There are also being registered hereunder an indeterminate
number of shares of Common Stock and Preferred Stock as shall be
issuable upon conversion or redemption of Preferred Stock or Debt
Securities registered hereby. Includes the preferred stock purchase
rights associated with the Common Stock.
(5) Subject to note (8) below, there are being registered hereunder an
indeterminate amount and number of Warrants, representing rights to
purchase Debt Securities, Preferred Stock or Common Stock.
(6) Subject to note (8) below, there are being registered hereunder an
indeterminate amount and number of Stock Purchase Contracts,
representing rights to purchase Preferred Stock or Common Stock.
(7) Subject to note (8) below, there are being registered hereunder an
indeterminate amount and number of Stock Purchase Units, representing
ownership of Stock Purchase Contracts and Debt Securities or debt
obligations of third parties, including U.S. Treasury Securities.
(8) In no event will the aggregate initial offering price of all
securities issued from time to time pursuant to this Registration
Statement exceed $700,000,000. Any Securities registered hereunder
may be sold separately or as units with other securities registered
hereunder.
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 $149,775,000 of securities covered by Registrant's
Registration Statement on Form S-3 (Registration No. 33-51879) and
$100,000,000 of securities covered by Registrant s Registration
Statement on Form S-3 (Registration No. 33-7793). Such
Registration Statements are accordingly amended to reflect the
information contained herein.
SUBJECT TO COMPLETION, DATED APRIL 27, 1995
PROSPECTUS
[BFI LOGO]
BROWNING-FERRIS INDUSTRIES,INC.
DEBT SECURITIES
PREFERRED STOCK
COMMON STOCK
WARRANTS
STOCK PURCHASE CONTRACTS
STOCK PURCHASE UNITS
Browning-Ferris Industries, Inc. (the "Company") may offer and sell from
time to time, either jointly or separately, at prices and on terms to be
determined at or prior to the time of sale, up to an aggregate initial
offering price of not more than $949,775,000 (or, if applicable, the
equivalent thereof in other currencies) of its (i) unsecured debt
securities ("Debt Securities") consisting of debentures, notes and/or
other unsecured evidences of indebtedness in one or more series, (ii)
shares of preferred stock, without par value ("Preferred Stock"), in one
or more series, (iii) shares of common stock, par value $.16 2/3 per
share ("Common Stock"), (iv) Warrants ("Warrants") to purchase Debt
Securities, Preferred Stock or Common Stock, (v) Stock Purchase Contracts
("Stock Purchase Contracts") to purchase Preferred Stock or Common Stock
or (vi) Stock Purchase Units ("Stock Purchase Units"), each representing
ownership of a Stock Purchase Contract and Debt Securities or debt
obligations of third parties, including U.S. Treasury securities,
securing the holder's obligation to purchase the Preferred Stock or Common
Stock under the Stock Purchase Contract (the Debt Securities, Preferred
Stock, Common Stock, Warrants, Stock Purchase Contracts and Stock Purchase
Units are collectively referred to as "Securities"). A minimum of
$100,000,000 of the aggregate securities that may be offered hereunder
must be offered in the form of Debt Securities.
Specific terms of the Securities ("Offered Securities") in respect of which
this Prospectus is being delivered will be set forth in an accompanying
Prospectus Supplement ("Prospectus Supplement"), together with the terms
of the offering of the Offered Securities and the initial price and net
proceeds to the Company from the sale thereof. The Prospectus Supplement
will set forth with regard to the particular Offered Securities, without
limitation, the following: (i) in the case of Debt Securities, the specific
designation, aggregate principal amount, ranking as senior or subordinated
debt, authorized denomination, maturity, rate or rates of interest (or
method of calculation thereof) and dates for payment thereof, any
exchangeability, conversion, redemption, prepayment or sinking fund
provisions, and the currency or currencies or currency unit or currency
units in which principal, premium, if any, or interest, if any, is payable,
(ii) in the case of Preferred Stock, the designation, number of shares,
liquidation preference per share, initial public offering price, dividend
rate (or method of calculation thereof), dates on which dividends shall be
payable and dates from which dividends shall accrue, any redemption or
sinking fund provisions, any voting rights, and any conversion or exchange
rights, (iii) in the case of Common Stock, the number of shares of Common
Stock and the terms of the offering and sale thereof, (iv) in the case of
Warrants, the number and terms thereof, the designation and number of
Securities issuable upon their exercise, the exercise price, the terms of
the offering and sale thereof and, where applicable, the duration and
detachability thereof, (v) in the case of Stock Purchase Contracts, the
designation and number of shares of Preferred Stock or Common Stock
issuable thereunder, the purchase price of the Preferred Stock or Common
Stock, the date or dates on which the Preferred Stock or Common Stock is
required to be purchased by the holders of the Stock Purchase Contracts,
any periodic payments required to be made by the Company to the holders
of the Stock Purchase Contracts or visa versa, and the terms of the
offering and sale thereof, and (vi) in the case of Stock Purchase Units,
the specific terms of the Stock Purchase Contracts and any Debt
Securities or debt obligations of third parties securing the holder's
obligation to purchase the Preferred Stock or Common Stock under the
Stock Purchase Contracts, and the terms of the offering and sale thereof.
The Company may sell the Securities directly, through agents designated
from time to time or through underwriters or dealers. If any agents of
the Company or any underwriters or dealers are involved in the sale of
the Securities, the names of such agents, underwriters or dealers and
any applicable commissions and discounts will be set forth in the
Prospectus Supplement.
_______________________
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 may not be used to consummate sales of the Securities
unless accompanied by a Prospectus Supplement.
The date of this Prospectus is ____________________, 1995
No person has been authorized to give any information or to make
any representations other than those contained or incorporated by
reference in this Prospectus and the Prospectus Supplement in
connection with the offering made hereby and if given or made, such
information or representations must not be relied upon as having
been authorized by the Company or by any other person. This
Prospectus and the Prospectus Supplement shall not constitute an
offer to sell or the solicitation of an offer to buy nor shall
there be any sale of these securities in any jurisdiction in which
such offer, solicitation or sale would be unlawful prior to
registration or qualification under the securities laws of any such
jurisdiction. Neither the delivery of this Prospectus or any
Prospectus Supplement nor any sale made hereunder or thereunder
shall, under any circumstances, create any implication that there
has been no change in the affairs of the Company since the date
hereof or thereof or that the information contained herein or
therein is correct as of any time subsequent to their respective
dates.
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 and other information
with the Securities and Exchange Commission (the "Commission").
Reports, proxy statements and other information filed by the
Company with the Commission may be inspected 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, Northwest Atrium Center, 500 West Madison Street, Suite
1400, Chicago, Illinois 60661. Copies of such material may also be
obtained from the Public Reference Section of the Commission, 450
Fifth Street, N.W., Washington, D.C. 20549 at prescribed rates.
Such 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, Inc., 440 S. LaSalle Street, Chicago,
Illinois 60605, and at the offices of the Pacific Stock Exchange,
Inc., 301 Pine Street, San Francisco, California 94104.
This Prospectus constitutes a part of a Registration Statement on
Form S-3 (together with all amendments and exhibits thereto, the
"Registration Statement") filed by the Company with the Commission
under the Securities Act of 1933, as amended (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 Securities 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 following documents, heretofore filed with the Commission by
the Company pursuant to the Exchange Act, are incorporated herein
by reference:
(a) The Company's Annual Report on Form 10-K for the fiscal
year ended September 30, 1994;
(b) The Company's Quarterly Report on Form 10-Q for the
quarter ended December 31, 1994; and
(c) The Company's Current Reports on Form 8-K dated January 24,
1995 (as amended), dated March 2, 1995 and dated March
14, 1995.
All documents filed by the Company with the Commission pursuant to
Sections 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 of the Securities, shall be deemed to be incorporated by
reference in the 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 or in the accompanying Prospectus
Supplement modifies or supersedes such statement. Any such
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 (other than
exhibits to such documents, unless such exhibits are specifically
incorporated by reference in such documents) will be provided
without charge to each person, including any beneficial owner, who
receives a copy of this Prospectus on the written request of such
person addressed to the Secretary's Department, Browning-Ferris
Industries, Inc., P.O. Box 3151, Houston, Texas 77253, or upon the
oral request of such person directed to the Secretary's Department
at (713) 870-7027.
THE COMPANY
The Company is one of the largest publicly-held companies engaged
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 of North America, and employ approximately 37,000
persons. In addition to operations in the United States, Canada
and Puerto Rico, subsidiaries of the Company own interests in
subsidiaries or affiliates with 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., 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.
APPLICATION OF PROCEEDS
Unless otherwise indicated in a Prospectus Supplement with respect
to the proceeds from the sale of the particular Securities to which
such Prospectus Supplement relates, the net proceeds to be received
by the Company from the sale of the Securities will be added to the
Company's general funds and are expected to be applied to reduce
certain outstanding debt and for general corporate purposes,
including capital expenditures and acquisitions.
DESCRIPTION OF DEBT SECURITIES
The following description of the Debt Securities sets forth certain
general terms and provisions of the Debt Securities to which any
Prospectus Supplement may relate ("Offered Debt Securities"). The
particular terms of the Offered Debt Securities and the extent to
which such general provisions may apply will be described in a
Prospectus Supplement relating to such Offered Debt Securities.
The Debt Securities will be general unsecured obligations of the
Company and will constitute either senior debt securities or
subordinated debt securities. In the case of Debt Securities that
will be senior debt securities ("Senior Debt Securities" and
"Offered Senior Debt Securities"), the Debt Securities will be
issued under a Restated Indenture dated as of September 1, 1991,
between the Company and Texas Commerce Bank National Association,
as Trustee (successor trustee to First City, Texas-Houston,
National Association, which was formerly First City National Bank
of Houston) (the "Senior Trustee"), (the "Senior Indenture"). In
the case of Debt Securities that will be subordinated debt
securities ("Subordinated Debt Securities" and "Offered
Subordinated Debt Securities"), the Debt Securities will be issued
under an Indenture dated as of August 1, 1987, as amended (the
"Subordinated Indenture"), between the Company and NationsBank of
Texas, National Association, as Trustee (successor trustee to First
RepublicBank Houston, National Association, as Trustee) (the
"Subordinated Trustee"). The Senior Indenture and the Subordinated
Indenture are sometimes referred to herein individually as an
"Indenture" and collectively as the "Indentures". The Senior
Trustee and the Subordinated Trustee are sometimes referred to
herein individually as a "Trustee" and collectively as the
"Trustees". The statements under this caption relating to the Debt
Securities and the Indentures are summaries only and do not purport
to be complete. Such summaries make use of terms defined in the
Indentures. Wherever such terms are used herein or particular
provisions of the Indentures are referred to, such terms or
provisions, as the case may be, are incorporated by reference as
part of the statements made herein, and such statements are
qualified in their entirety by such reference. Certain defined
terms in the Indentures are capitalized herein. The references
below apply to the section numbers in each of the Indentures,
unless otherwise indicated. Both the Senior Indenture and the
Subordinated Indenture, and the Securities issued thereunder, are
governed by Texas law.
Provisions Applicable to Both Senior and Subordinated Debt Securities
- ---------------------------------------------------------------------
General. The Indentures do not limit the aggregate principal
amount of the Debt Securities issuable thereunder or of any
particular series of the Debt Securities and provide that Debt
Securities may be issued thereunder from time to time in one or
more series with the same or various maturities at par, at a
premium or at a discount. Offered Debt Securities bearing no
interest or interest at a rate which at the time of issuance is
below market rate ("Original Issue Discount Securities") will be
sold at a discount (which may be substantial) from their stated
principal amount. Federal income tax consequences and other special
considerations applicable to any such Original Issue Discount
Securities will be described in the Prospectus Supplement relating
thereto.
Reference is made to the Prospectus Supplement for the following
terms of the Offered Debt Securities: (i) the title and the limit
on the aggregate principal amount of Offered Debt Securities; (ii)
the percentage of the principal amount at which the Offered Debt
Securities will be sold; (iii) the date or dates on which the
principal of (and premium, if any, on) the Offered Debt Securities
will be payable; (iv) the rate or rates (which may be fixed or
variable) per annum, if any, at which the Offered Debt Securities
will bear interest or the method of determining such rate or rates;
(v) the date or dates from which such interest, if any, shall
accrue, the date or dates on which such interest, if any, will be
payable and the regular record date for interest payable on any
payment date; (vi) the place or places where the principal of (and
premium, if any) and interest, if any, on the Offered Debt
Securities will be payable; (vii) the terms for redemption or early
payment, if any, including any mandatory or optional sinking fund
or analogous provision; (viii) the principal amount of any Offered
Debt Securities that are Original Issue Discount Securities, which
would be payable upon declaration of acceleration of the maturity
of the Offered Debt Securities; (ix) any modifications of the
Events of Default or covenants of the Company contained in the
Indenture pertaining to the Offered Debt Securities; (x)
information with respect to book-entry procedures, if any; (xi) as
to Subordinated Debt Securities only, whether the offered
Subordinated Debt Securities are convertible into Common Stock of
the Company and, if so, the initial conversion price; and (xii) any
other terms of the Offered Debt Securities not inconsistent with
the Indenture under which they are issued. (Section 301)
Unless otherwise indicated in the Prospectus Supplement relating
thereto, principal of and any premium and interest on the Offered
Debt Securities will be payable, and the Offered Debt Securities
will be exchangeable and transfer thereof will be registrable, at
the corporate trust office of the Trustee or at the office of each
paying agent, if any, identified in the Prospectus Supplement with
respect to the Offered Debt Securities; provided that, at the
option of the Company, payment of any interest may be made by check
mailed to the address of the Person entitled thereto as it appears
in the Security Register. The Corporate Trust Office of the Senior
Trustee is located at 712 Main Street, Houston, Texas 77002, and
the Corporate Trust Office of the Subordinated Trustee is located
at 700 Louisiana Street, Houston, Texas 77002. (Sections 301, 305
and 1002)
Unless otherwise indicated in the Prospectus Supplement relating
thereto, the Offered Debt Securities will be issued in only fully
registered form without coupons in denominations of $1,000 or any
integral multiple thereof, and no service charge will be made for
any transfer or exchange of such Offered Debt Securities, but the
Company may require payment of a sum sufficient to cover any tax or
other governmental charge payable in connection therewith.
(Sections 302 and 305)
Global Securities. The Offered Debt Securities of a series may be
issued in whole or in part in the form of one or more global
securities ("Global Securities") that will be issued to and
registered in the name of the depositary (the "Depositary")
identified in the Prospectus Supplement, or its nominee, relating
to such series. Global Securities may be issued only in fully-
registered form and in either temporary or permanent form. Unless
and until a Global Security is exchanged in whole or in part for
the individual Debt Securities represented thereby, such Global
Security may not be transferred except as a whole by the Depositary
to its nominee or by a nominee of such Depositary to such
Depositary or another nominee of such Depositary or by such
Depositary or any such nominee to a successor Depositary or nominee
of such successor Depositary. (Section 305)
The specific terms of the depositary arrangement with respect to a
series of Offered Debt Securities will be described in the
Prospectus Supplement relating to such series. The Company
anticipates that the following provisions will generally apply to
depositary arrangements.
Upon the issuance of a Global Security, the Depositary or its
nominee will credit, on its book-entry registration and transfer
system, the respective principal amounts of the individual Debt
Securities represented by such Global Security to the accounts of
persons that have accounts with the Depositary. Such accounts
shall be designated by the dealers, underwriters or agents with
respect to such Debt Securities or by the Company if such Debt
Securities are offered and sold directly by the Company. Ownership
of beneficial interests in a Global Security will be limited to
persons that have accounts with the Depositary ("Participants") or
persons that may hold interests through Participants. Ownership of
beneficial interests in such Global Security will be shown on, and
the transfer of that ownership will be effected only through,
records maintained by the Depositary or its nominee (with respect
to interests of Participants) and the records of Participants (with
respect to interests of persons other than Participants). The laws
of some states require that certain purchasers of securities take
physical delivery of such securities in definitive form. Such
limits and such laws may impair the ability to transfer beneficial
interests in a Global Security.
So long as the Depositary or its nominee is the registered owner of
a Global Security, such registered owner will be considered the
sole owner or holder of the Debt Securities represented by such
Global Security for all purposes under the Indenture. Except as
provided below, owners of beneficial interests in a Global Security
will not be entitled to have any of the individual Debt Securities
represented by such Global Security registered in their names, will
not receive or be entitled to receive physical delivery of any such
Debt Securities in definitive form and will not be considered the
owners or holders thereof under the Indenture.
Payments of principal of and premium, if any, and interest, if any,
on Debt Securities represented by a Global Security registered in
the name of the Depositary or its nominee will be made to the
Depositary or its nominee, as the case may be, as the registered
owner of the Global Security representing such Debt Securities.
None of the Company, the Trustee, any Paying Agent or the Security
Registrar for such Debt Securities will have any responsibility or
liability for any aspect of the records relating to or payments
made on account of beneficial ownership interests of the Global
Security for such Debt Securities or for maintaining, supervising
or reviewing any records relating to such beneficial ownership
interests.
The Company expects the Depositary or its nominee, immediately upon
receipt of any payment of principal, premium or interest in respect
of a Global Security, will credit Participants' accounts with
payments in amounts proportionate to their respective beneficial
interests in the principal amount of such Global Security as shown
on the records of the Depositary or its nominee. The Company also
expects that payments by Participants to owners of beneficial
interests in such Global Security held through such Participants
will be governed by standing instructions and customary practices,
as is now the case with securities held for the accounts of
customers in bearer form or registered in "street name". Such
payments will be the sole responsibility of such Participants. The
Company has no control over the practices of the Depositary or the
Participants and there can be no assurance that these practices
will not be changed.
If the Depositary for a series of Debt Securities is at any time
unwilling, unable or ineligible to continue as depositary and a
successor depositary is not appointed by the Company within 90
days, the Company will issue individual Debt Securities of such
series in exchange for the Global Security representing such series
of Debt Securities. In addition, the Company may at any time and
in its sole discretion, subject to any limitations described in the
Prospectus Supplement relating to such Debt Securities, determine
not to have any Debt Securities of a series represented by one or
more Global Securities and, in such event, will issue individual
Debt Securities of such series in exchange for the Global Security
representing such series of Debt Securities. Further, if there
shall have occurred and be continuing an Event of Default, or an
event which, with the giving of notice or lapse of time, or both,
would constitute an Event of Default with respect to any series of
Debt Securities represented by a Global Security, such Global
Security shall be exchangeable for individual Debt Securities of
such series. In any such instance, an owner of a beneficial
interest in a Global Security will be entitled to a physical
delivery of individual Debt Securities of the series represented by
such Global Security equal in principal amount to such beneficial
interest and to have such Debt Securities registered in its name.
Individual Debt Securities of such series so issued will be issued
in denominations, unless otherwise specified by the Company, of
$1,000 and integral multiples thereof.
Consolidation, Merger and Sale of Assets. Each Indenture provides
that the Company, without the consent of the holders of any of the
outstanding Debt Securities, may consolidate with or merge into any
other corporation or transfer or lease its assets substantially as
an entirety to any Person or may acquire or lease the assets of any
Person substantially as an entirety or may permit any corporation
to merge into the Company provided that (i) the successor is a
corporation organized under the laws of any domestic jurisdiction;
(ii) the successor corporation, if other than the Company, assumes
the Company's obligations under the Indenture and the Debt
Securities issued thereunder; (iii) after giving effect to the
transaction, no Event of Default and no event which, after notice
or lapse of time, or both, would become an Event of Default, shall
have occurred and be continuing; and (iv) certain other conditions
are met. (Section 801)
Modification of the Indentures. Each Indenture provides that the
Company and the Trustee may, without the consent of any holders of
Debt Securities, enter into supplemental indentures for the
purposes, among other things, of adding to the Company's covenants,
adding additional Events of Default, establishing the form or terms
of Debt Securities, curing ambiguities or inconsistencies in the
Indenture or making any other provisions with respect to matters
arising under the Indenture if such action shall not adversely
affect the interests of the holders of any series of Debt
Securities in any material respect or to change or eliminate any of
the provisions of the Indenture with respect to a series of Debt
Securities if such series is not then outstanding. (Section 901)
Each Indenture also contains provisions permitting the Company,
with the consent of the holders of not less than a majority in
principal amount of the outstanding Debt Securities of the affected
series, to execute supplemental indentures adding any provisions to
or changing or eliminating any of the provisions of the Indenture
or modifying the rights of the holders of the Debt Securities of
such series, except that no such supplemental indenture may,
without the consent of the holders of all of the outstanding Debt
Securities affected thereby, among other things: (i) change the
maturity of the principal of or any installment of principal or
interest on any of the Debt Securities; (ii) reduce the principal
amount thereof or the rate of interest, if any, thereon or any
premium payable on the redemption thereof; (iii) reduce the amount
of the principal of Original Issue Discount Securities payable on
any date; (iv) change the place of payment where, or the coin or
currency in which, any of the Debt Securities or any premium or
interest thereon is payable; (v) impair the right to institute suit
for the enforcement of any such payment on or after the applicable
maturity date; (vi) reduce the percentage in principal amount of
the Debt Securities of any outstanding series the consent of the
holders of which is required for any such supplemental indenture or
for any waiver of compliance with certain provisions of, or of
certain defaults under, the Indenture; (vii) as to the Subordinated
Indenture only, adversely affect the right to convert the
Subordinated Debt Securities (if convertible) or modify the
subordination provisions of the Subordinated Indenture in a manner
adverse to the holders of Subordinated Debt Securities; or (viii)
with certain exceptions, modify the foregoing requirements.
(Section 902)
Events of Default, Notice and Waiver. Unless otherwise indicated
in the Prospectus Supplement relating to a particular series of
Debt Securities, an Event of Default with respect to any series of
Debt Securities is defined in each Indenture to be a (i) default
for 30 days in the payment of any installment of interest upon any
of the Debt Securities of such series when due; (ii) default in the
payment of principal of (or premium, if any, on) any of the Debt
Securities of such series when due; (iii) default in the making or
satisfaction of any sinking fund payment when the same becomes due
by the terms of the Debt Securities of such series; (iv) default by
the Company in the performance, or breach, of any of its other
covenants in the Indenture which shall not have been remedied for
a period of 60 days after notice by the Trustee or the holders of
at least 25% in principal amount of the Debt Securities of such
series; (v) certain events of bankruptcy, insolvency or
reorganization of the Company; and (vi) such other events as may be
specified for each series. (Section 501)
A default under other indebtedness of the Company or any of its
subsidiaries will not be a default under either Indenture, and an
Event of Default under one series of Debt Securities will not
necessarily be an Event of Default under another series of Debt
Securities issued under the same Indenture.
Each Indenture provides that if an Event of Default specified
therein with respect to any outstanding series of Debt Securities
issued thereunder shall have occurred and be continuing, either the
Trustee or the holders of not less than 25% in principal amount of
the Debt Securities of such series may declare the principal (or,
if the Debt Securities of such series are Original Issue Discount
Securities, such portion of the principal amount as may be
specified by the terms of such series) of all of the Debt
Securities of such series to be immediately due and payable. Such
declaration may be rescinded if certain conditions are satisfied.
(Section 502)
Each Indenture also provides that the holders of not less than a
majority in principal amount of the Debt Securities of any
outstanding series may direct the time, method and place of
conducting any proceeding for any remedy available to the Trustee,
or exercising any trust or power conferred on the Trustee, with
respect to the Debt Securities of such series, provided that the
Trustee may take any other proper action not inconsistent with such
direction and may decline to act if such direction is contrary to
law or to the Indenture or would involve the Trustee in personal
liability. (Section 512)
In addition, each Indenture also provides that the holders of not
less than a majority in principal amount of the Debt Securities of
any outstanding series thereunder may on behalf of the holders of
all of the Debt Securities of such series waive any past default
with respect to such series and its consequences, except a default
(i) in the payment of the principal of (or premium, if any) or
interest on any of the Debt Securities of such series or (ii) in
respect of a covenant or provision of the Indenture which, under
the terms thereof, cannot be modified or amended without the
consent of the holders of all of the Debt Securities of such
series. (Section 513)
Each Indenture contains provisions entitling the Trustee, subject
to the duty of the Trustee during an Event of Default in respect of
any series of Debt Securities issued thereunder to act with the
required standard of care, to be indemnified by the holders of the
Debt Securities of such series before proceeding to exercise any
right or power under the Indenture at the request of the holders of
the Debt Securities of such series. (Sections 601 and 603)
Each Indenture also provides that the Trustee will, within 90 days
after the occurrence of a default in respect of any series of Debt
Securities issued thereunder give to the holders of the Debt
Securities of such series notice of all uncured and unwaived
defaults known to it; provided, however, that, except in the case
of a default in the payment of the principal of (or premium, if
any), or interest on, or any sinking fund installment with respect
to, any Debt Securities of such series, the Trustee will be
protected in withholding such notice if it in good faith determines
that the withholding of such notice is in the interest of the
holders of the Debt Securities of such series; and provided
further, that such notice shall not be given until at least 30 days
after the occurrence of an Event of Default regarding the
performance or breach of any covenant or warranty of the Company
under the Indenture other than for the payment of the principal of
(or premium, if any) or interest on, or any sinking fund
installment with respect to, any of the Debt Securities of such
series. The term default for the foregoing purpose only means any
event which is, or after notice or lapse of time, or both, would
become, an Event of Default with respect to the Debt Securities of
such series. (Section 602)
Each Indenture requires the Company to file annually with the
Trustee a certificate, executed by an officer of the Company,
indicating whether the Company has fulfilled all of its obligations
or is in default under certain covenants under the Indenture.
(Section 1004)
Provisions Applicable to Senior Debt Securities
- -----------------------------------------------
General. The Senior Debt Securities will be unsecured obligations
of the Company issued under the Senior Indenture and will rank on a
parity with all other unsecured and unsubordinated indebtedness
of the Company.
Limitations on Liens. The Senior Indenture does not contain any
covenant restricting the amount of indebtedness which may be
incurred by the Company or any of its Subsidiaries. The Senior
Indenture, however, provides, in general, that except as provided
in this and in the following paragraph, the Company will not, and
will not permit any Restricted Subsidiary to, issue, assume or
guarantee any Debt secured by a Lien upon any Principal Property of
the Company or any Restricted Subsidiary or upon any shares of
stock or Debt of any Restricted Subsidiary (whether such Principal
Property, shares of stock or Debt are now owned or hereafter
acquired) without in any such case effectively providing
concurrently with the issuance, assumption or guaranty of any such
Debt that the Senior Debt Securities (together with, if the Company
shall so determine, any other indebtedness of or guaranty by the
Company or such Restricted Subsidiary then existing or thereafter
created which is not subordinate to the Senior Debt Securities)
shall be secured equally and ratably with (or, at the option of the
Company, prior to) such Debt, so long as such Debt shall be so
secured; provided, however, that the foregoing restrictions shall
not apply to Debt secured by: (1) Liens on property, shares of
stock or indebtedness of any corporation existing at the time such
corporation becomes a Restricted Subsidiary; (2) Liens on any
property (including shares of stock or Debt) existing at the time
of acquisition thereof or securing the payment of all or any part
of the purchase price or construction cost thereof or securing any
Debt incurred prior to, at the time of or within 180 days after,
the acquisition of such property or the completion of any such
construction for the purpose of financing all or any part of the
purchase price or construction cost thereof; (3) Liens on any
property to secure all or any part of the cost of development,
operation, construction, alteration, repair or improvement of all
or any part of such property, or to secure Debt incurred prior to,
at the time of or within 180 days after, the completion of such
development, operation, construction, alteration, repair or
improvement for the purpose of financing all or any part of such
cost; (4) Liens which secure Debt owing by a Restricted Subsidiary
to the Company or to another Restricted Subsidiary or by the
Company to a Restricted Subsidiary; (5) Liens securing indebtedness
of a corporation which becomes a successor of the Company by reason
of a consolidation, merger or any conveyance, transfer or lease of
the properties and assets of the Company substantially as an
entirety; (6) Liens on property of the Company or a Restricted
Subsidiary in favor of governmental authorities to secure partial,
progress, advance or other payments or to secure any indebtedness
incurred for the purpose of financing all or any part of the
purchase price or the cost of construction of the property subject
to such Liens, or in favor of any trustee or mortgagee for the
benefit of holders of indebtedness of any such entity incurred for
any such purpose; (7) Liens incurred in connection with pollution
control, sewage or solid waste disposal, industrial revenue or
similar financing; (8) Liens existing at January 15, 1985; and (9)
any extension, renewal or replacement (or successive extensions,
renewals or replacements), in whole or in part, of any Lien
referred to in the foregoing clauses (1) to (8), inclusive, or of
any Debt secured thereby; provided that such extension, renewal or
replacement Lien shall be limited to all or any part of the same
property that secured the Lien extended, renewed or replaced (plus
any improvements on such property) and shall secure no larger
amount of Debt than that existing at the time of such extension,
renewal or replacement. (Section 1005)
The Company and any one or more Restricted Subsidiaries may issue,
assume or guarantee Debt secured by a Lien which would otherwise be
subject to the foregoing restrictions if at the time it does so
(the "Incurrence Time") such Debt plus all other Debt of the
Company and its Restricted Subsidiaries secured by a Lien which
would otherwise be subject to the foregoing restrictions (not
including Debt permitted to be secured as described in clauses (1)
through (9) in the preceding paragraph), plus the aggregate
Attributable Debt (determined as of the Incurrence Time) of Sale
and Leaseback Transactions (other than Sale and Leaseback
Transactions described in clauses (a) and (b) of the first
paragraph under the caption "Limitation on Sale and Leaseback
Transactions" herein) entered into after January 15, 1985 and in
existence at the Incurrence Time (less the aggregate amount of
proceeds of such Sale and Leaseback Transactions which shall have
been applied as described in clause (d) of the first paragraph
under the caption "Limitation on Sale and Leaseback Transactions"
herein), does not exceed 10% of the Consolidated Net Tangible
Assets. (Section 1005)
Limitation on Sale and Leaseback Transactions. The Senior
Indenture provides, in general, that the Company will not itself,
and will not permit any Restricted Subsidiary to, enter into any
arrangements with any bank, insurance company or other lender or
investor (other than the Company or another Restricted Subsidiary)
providing for the leasing as lessee by the Company or any such
Restricted Subsidiary of any Principal Property (except a lease for
a temporary period not to exceed three years by the end of which it
is intended the use of such Principal Property by the lessee will
be discontinued), which was or is owned by the Company or a
Restricted Subsidiary and which has been or is to be sold or
transferred by the Company or a Restricted Subsidiary, more than
180 days after the completion of construction and commencement of
full operation thereof by the Company or such Restricted
Subsidiary, to such lender or investor or to any person to whom
funds have been or are to be advanced by such lender or investor on
the security of such Principal Property (herein called a "Sale and
Leaseback Transaction") unless: (a) the Company or such Restricted
Subsidiary would (at the time of entering into such arrangement) be
entitled, as described in clauses (1) through (9) of the first
paragraph under the caption "Limitations on Liens" herein, without
equally and ratably securing the Senior Debt Securities, to issue,
assume or guarantee indebtedness secured by a Lien on such
Principal Property, or (b) such Sale and Leaseback Transaction
relates to a landfill or other waste disposal site (excluding any
plant or similar facility located thereon) owned by the Company or
such Restricted Subsidiary or which the Company or such Restricted
Subsidiary has the right to use, or (c) the Attributable Debt of
the Company and its Restricted Subsidiaries in respect of such Sale
and Leaseback Transaction and all other Sale and Leaseback
Transactions entered into after January 15, 1985 (other than such
Sale and Leaseback Transactions as are referred to in clauses (a),
(b) or (d) of this paragraph), plus the aggregate principal amount
of Debt secured by Liens on Principal Properties then outstanding
(excluding any such Debt secured by Liens described in clauses (1)
through (9) of the first paragraph under the caption "Limitations
on Liens" herein) which do not equally and ratably secure the
Senior Debt Securities, would not exceed 10% of Consolidated Net
Tangible Assets or (d) the Company, within 180 days after the sale
or transfer, applies or causes a Restricted Subsidiary to apply
(subject to certain reductions described in the Senior Indenture)
an amount equal to the greater of the net proceeds of such sale or
transfer or fair market value of the Principal Property so sold and
leased back at the time of entering into such Sale and Leaseback
Transaction to the retirement of Senior Debt Securities or other
indebtedness of the Company (other than indebtedness subordinated
to the Senior Debt Securities) or indebtedness of a Restricted
Subsidiary, for money borrowed, having a stated maturity more than
12 months from the date of such application or which is extendible
at the option of the obligor thereon to a date more than 12 months
from the date of such application. (Section 1006)
Definitions. Certain terms used in the above described
restrictions are given the following definitions in Section 101 of
the Senior Indenture:
"Attributable Debt" in respect of a Sale and Leaseback Transaction
means, as of any particular time, the present value (discounted at
the rate of interest implicit in the terms of the lease involved in
such Sale and Leaseback Transaction, as determined in good faith by
the Company) of the obligation of the lessee thereunder for net
rental payments (excluding, however, any amounts required to be
paid by such lessee, whether or not designated as rent or
additional rent, on account of maintenance and repairs, services,
insurance, taxes, assessments, water rates and similar charges or
any amounts required to be paid by such lessee thereunder
contingent upon monetary inflation or the amount of sales,
maintenance and repairs, insurance, taxes, assessments, water rates
or similar charges) during the remaining term of such lease
(including any period for which such lease has been extended or
may, at the option of the lessor, be extended).
"Consolidated Net Tangible Assets" means the aggregate amount of
assets (less applicable reserves and other properly deductible
items) after deducting therefrom (a) all goodwill, trade names,
trademarks, patents, unamortized debt discount and expense and
other like intangibles and (b) all current liabilities, all as
reflected in the Company's latest audited consolidated balance
sheet contained in the Company's most recent annual report to its
stockholders prior to the time as of which "Consolidated Net
Tangible Assets" shall be determined.
"Debt" means indebtedness for borrowed money.
"Lien" means any mortgage, pledge, security interest, lien or other
encumbrance.
"Principal Property" means any waste processing, waste disposal or
resource recovery plant or similar facility located within the
United States of America (other than its territories and
possessions and Puerto Rico) and owned by, or leased to, the
Company or any Restricted Subsidiary, except (a) any such plant or
facility (i) owned or leased jointly or in common with one or more
persons other than the Company and its Subsidiaries, in which the
interest of the Company and its Restricted Subsidiaries does not
exceed 50%, or (ii) which the Board of Directors determines in good
faith is not of material importance to the total business
conducted, or assets owned, by the Company and its Subsidiaries as
an entirety, or (b) any portion of any such plant or facility which
the Board of Directors determines in good faith not to be of
material importance to the use or operation thereof.
"Restricted Subsidiary" means any Subsidiary substantially all the
property of which is located, or substantially all the business of
which is carried on, within the United States of America (excluding
its territories and possessions and Puerto Rico).
"Subsidiary" means any corporation of which the Company directly or
indirectly owns or controls stock which under ordinary
circumstances (not dependent upon the happening of a contingency)
has voting power to elect a majority of the board of directors of
such corporation.
Defeasance. If so provided in the Prospectus Supplement
accompanying the Offered Senior Debt Securities, the Company may
discharge its indebtedness and its obligations under the Senior
Indenture with respect to such series by depositing funds or
obligations issued or guaranteed by the United States of America
with the Senior Trustee. The Prospectus Supplement will more fully
describe the provisions, if any, relating to such discharge.
(Section 403)
Regarding the Senior Trustee. The Senior Trustee is a lending bank
under an unsecured variable interest rate bank credit agreement
with the Company. The Company has and may from time to time in the
future have other banking relationships with the Senior Trustee in
the ordinary course of business. Marc J. Shapiro, a director of
the Company, is also the President and Chief Executive Officer of
the Senior Trustee and an executive officer of Chemical Banking
Corporation, the parent corporation of the Senior Trustee. William
D. Ruckelshaus, Chairman of the Board of Directors and Chief
Executive Officer of the Company, is also an advisory director of
the Senior Trustee. Marina v.N. Whitman, a director of the
Company, is also a director of Chemical Banking Corporation.
Provisions Applicable to Subordinated Debt Securities
- ------------------------------------------------------
General. The Subordinated Debt Securities will be unsecured
obligations of the Company to be issued under the Subordinated
Indenture, and will be subordinate in right of payment to certain
other indebtedness of the Company as described under
"Subordination".
Subordination. The Subordinated Debt Securities will be subordinate
and junior in right of payment, as set forth in the Subordinated
Indenture, to the prior payment in full of all Senior Debt of the
Company. "Senior Debt" is defined in the Subordinated Indenture as
the principal of (and premium, if any) and interest on any
indebtedness, whether outstanding at the date of the Subordinated
Indenture or thereafter created or incurred, which is for (a) money
borrowed by the Company, (b) obligations of the Company evidencing
the purchase price for acquisitions by the Company or a subsidiary
other than in the ordinary course of business, (c) money borrowed
by others and assumed or guaranteed by the Company, (d) capitalized
lease obligations of the Company, (e) obligations under performance
guarantees, support agreements and other agreements in the nature
thereof relating to the obligations of any subsidiary of the
Company with respect to waste-to-energy facilities and (f)
renewals, extensions, refundings, amendments and modifications of
any indebtedness, of the kind described in the foregoing clauses
(a), (b), (c), (d) and (e) or of the instruments creating or
evidencing such indebtedness, unless, in each case, by the terms of
the instrument creating or evidencing such indebtedness or such
renewal, extension, refunding, amendment and modification, it is
provided that such indebtedness is not senior in right of payment
to the Subordinated Debt Securities. (Section 1311)
In the event of any distribution of assets of the Company upon its
dissolution, winding up, liquidation or reorganization, the holders
of Senior Debt shall first be paid in full in respect of principal,
premium (if any) and interest before any such payments are made on
account of the Subordinated Debt Securities. In addition, in the
event that (a) the Subordinated Debt Securities or any other debt
securities issued under the Subordinated Indenture are declared due
and payable because of an Event of Default (other than under the
circumstances described in the preceding sentence) or (b) any
default by the Company has occurred and is continuing in the
payment of principal, premium (if any), sinking funds or interest
on any Senior Debt, then no payment shall be made on account of
principal, premium (if any), sinking funds or interest on the
Subordinated Debt Securities until all such payments due in respect
of such Senior Debt have been paid full. (Sections 1301 and 1304)
By reason of such subordination, creditors of the Company who are
not holders of Senior Debt may, subject to any subordination
provisions that may be applicable to such creditors, recover more
ratably than holders of the Subordinated Debt Securities.
As of December 31, 1994, the Company had outstanding approximately
$1.7 billion principal amount of indebtedness which would
constitute "Senior Debt". The Company also has unused lines of
credit for up to a maximum of $1.5 billion at March 31, 1995. The
amount of Senior Debt may change in the future, and the
Subordinated Indenture contains no limitations on the incurrence of
Senior Debt.
Conversion. The Subordinated Indenture provides that a series of
Subordinated Debt Securities may be convertible into Common Stock.
The following provisions will apply to convertible Subordinated
Debt Securities unless otherwise provided in the Prospectus
Supplement for such series of Subordinated Debt Securities.
The holder of any convertible Subordinated Debt Securities will
have the right, exercisable at any time prior to maturity, subject
to prior redemption by the Company, to convert any portion of such
Subordinated Debt Securities that is $1,000 in principal amount or
any integral multiple thereof, into shares of Common Stock at the
conversion price or conversion rate set forth in the Prospectus
Supplement, subject to adjustment.
In certain events, the conversion price or conversion rate will be
subject to adjustment as set forth in the Subordinated Indenture.
Such events include the issuance of shares of Common Stock as a
dividend or distribution on the Common Stock; subdivisions,
combinations and reclassifications of the Common Stock; the fixing
of a record date for the issuance to all holders of Common Stock of
rights or warrants entitling the holders thereof (for a period
expiring within 45 days of the record date) to subscribe for or
purchase shares of Common Stock at a price per share less than the
then current market price per share of Common Stock (as determined
pursuant to the Subordinated Indenture); and the fixing of a record
date for the distribution to all holders of Common Stock of
evidences of indebtedness or assets (excluding cash dividends paid
from surplus) of the Company or subscription rights or warrants
(other than those referred to above). No adjustment of the
conversion price or conversion rate will be required unless an
adjustment would require a cumulative increase or decrease of at
least 1% in such price or rate. (Section 1404)
Fractional shares of Common Stock will not be issued upon
conversion, but, in lieu thereof, the Company will pay a cash
adjustment based on the then current market price for the Common
Stock. Upon conversion, no adjustments will be made for accrued
interest or dividends, and, accordingly, convertible Subordinated
Debt Securities surrendered for conversion between the record date
for an interest payment and the interest payment date (except
convertible Subordinated Debt Securities called for redemption on
a redemption date during such period) must be accompanied by
payment of an amount equal to the interest thereon which the
registered holder is to receive. (Sections 1403 and 1405)
In the case of any reclassification or change in the outstanding
shares of Common Stock, any consolidation or merger of the Company
(with certain exceptions) or any conveyance, transfer or lease of
the property and assets of the Company substantially as an
entirety, the holder of convertible Subordinated Debt Securities,
after the consolidation, merger, conveyance, transfer or lease,
will have the right to convert such convertible Subordinated Debt
Securities into the kind and amount of securities, cash and other
property which the holder would have been entitled to receive upon
or in connection with such consolidation, merger, conveyance,
transfer or lease, if the holder had held the Common Stock issuable
upon conversion of such convertible Subordinated Debt Securities
immediately prior to such consolidation, merger, conveyance,
transfer or lease. (Section 1406)
Regarding the Subordinated Trustee. The Subordinated Trustee is a
lending bank under an unsecured variable interest rate bank credit
agreement with the Company. The Company has and may from time to
time in the future have other banking relationships with the
Subordinated Trustee in the ordinary course of business.
CAPITAL STOCK
Pursuant to its Restated Certificate of Incorporation, the Company
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 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% 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 the effect of delaying,
deferring or preventing a change in control of the Company. 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 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.
Description of Common Stock. At 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. Subject to the dividend preferences of
any outstanding shares of Preferred Stock, all shares of Common
Stock are entitled to participate in such dividends as may be
declared by the Board of Directors out of assets available for such
payment. 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. As described
above, one Right will be issued in respect of each share of Common
Stock issued before the earliest of the dates on which separate
Right certificates are distributed or the Rights expire or are
redeemed.
The Common Stock Transfer Agent and Registrar is First Chicago
Trust Company of New York, Stock Transfer Department, Post Office
Box 3891, Church Street Station, New York, New York 10008.
Description of Preferred Stock. Under the Company's Restated
Certificate of Incorporation, the Board of Directors may provide
for the issuance of up to 25,000,000 shares of Preferred Stock in
one or more series. The rights, preferences, privileges and
restrictions, including liquidation preferences, of the Preferred
Stock of each series will be fixed or designated by the Board of
Directors pursuant to a certificate of designation without any
further vote or action by the Company's stockholders. The issuance
of Preferred Stock could have the effect of delaying, deferring or
preventing a change in control of the Company. Upon issuance
against full payment of the purchase price therefor, shares of
Preferred Stock offered hereby will be fully paid and
nonassessable.
The specific terms of a particular series of Preferred Stock
offered hereby will be described in a Prospectus Supplement
relating to such series and will include the following:
(i) The maximum number of shares to constitute the series and
the distinctive designation thereof;
(ii) The annual dividend rate, if any, on shares of the series,
whether such rate is fixed or variable or both, the date or
dates from which dividends will begin to accrue or accumulate
and whether dividends will be cumulative;
(iii) Whether the shares of the series will be redeemable and, if
so, the price at and the terms and conditions on which the shares
of the series may be redeemed, including the time during which
shares of the series may be redeemed and any accumulated dividends
thereon that the holders of shares of the series shall be entitled
to receive upon the redemption thereof;
(iv) The liquidation preference, if any, applicable to shares of the
series;
(v) Whether the shares of the series will be subject to operation of
a retirement or sinking fund and, if so, the extent and manner in
which any such fund shall be applied to the purchase or redemption
of the shares of the series for retirement or for other corporate
purposes, and the terms and provisions relating to the operation of
such fund;
(vi) The terms and conditions, if any, on which the shares of the series
shall be convertible into, or exchangeable for, shares of any other
class or classes of capital stock of the Company or another
corporation or any series of any other class or classes, or of any
other series of the same class, including the price or prices or
the rate or rates of conversion or exchange and the method, if any,
of adjusting the same;
(vii) The voting rights, if any, on the shares of the series; and
(viii) Any other preferences and relative, participating, optional or
other special rights or qualifications, limitations or restrictions
thereof.
DESCRIPTION OF WARRANTS
The Company may issue Warrants, including Warrants to purchase Debt
Securities ("Debt Warrants") and Warrants to purchase Common Stock
or Preferred Stock ("Stock Warrants"). Warrants may be issued
independently of or together with any other Securities and may be
attached to or separate from such Securities. Each series of
Warrants will be issued under a separate Warrant Agreement (each a
"Warrant Agreement") to be entered into between the Company and a
Warrant Agent ("Warrant Agent"). The Warrant Agent will act solely
as an agent of the Company in connection with the Warrant of such
series and will not assume any obligation or relationship of agency
for or with holders or beneficial owners of Warrants. The following
sets forth certain general terms and provisions of the Warrants
offered hereby. Further terms of the Warrants and the applicable
Warrant Agreement will be set forth in the applicable Prospectus
Supplement.
Debt Warrants
- --------------
The applicable Prospectus Supplement will describe the terms of any
Debt Warrants, including the following: (i) the title of such Debt
Warrants; (ii) the offering price for such Debt Warrants, if any;
(iii) the aggregate number of such Debt Warrants; (iv) the
designation and terms of the Debt Securities purchasable upon
exercise of such Debt Warrants; (v) if applicable, the designation
and terms of the Securities with which such Debt Warrants are
issued and the number of such Debt Warrants issued with each such
Security; (vi) if applicable, the date from and after which such
Debt Warrants and any Securities issued therewith will be
separately transferable; (vii) the principal amount of Debt
Securities purchasable upon exercise of a Debt Warrant and the
price at which such principal amount of Debt Securities may be
purchased upon exercise; (viii) the date on which the right to
exercise such Debt Warrants shall commence and the date on which
such right shall expire; (ix) if applicable, the minimum or maximum
amount of such Debt Warrants that may be exercised at any one time;
(x) whether the Debt Warrants represented by the Debt Warrant
certificates or Debt Securities that may be issued upon exercise of
the Debt Warrants will be issued in registered or bearer form; (xi)
information with respect to book-entry procedures, if any; (xii)
the currency, currencies or currency units in which the offering
price, if any, and the exercise price are payable; (xiii) if
applicable, a discussion of certain United States federal income
tax considerations; (xiv) the antidilution provisions of such Debt
Warrants, if any; (xv) the redemption or call provisions, if any,
applicable to such Debt Warrants; and (xvi) any additional terms of
the Debt Warrants, including terms, procedures and limitations
relating to the exchange and exercise of such Debt Warrants.
Stock Warrants
- --------------
The applicable Prospectus Supplement will describe the terms of any
Stock Warrants, including the following: (i) the title of such
Stock Warrants; (ii) the offering price of such Stock Warrants, if
any; (iii) the aggregate number of such Stock Warrants; (iv) the
designation and terms of the Common Stock or Preferred Stock
purchasable upon exercise of such Stock Warrants; (v) if
applicable, the designation and terms of the Securities with which
such Stock Warrants are issued and the number of such Stock
Warrants issued with each such Security; (vi) if applicable, the
date from and after which such Stock Warrants and any Securities
issued therewith will be separately transferrable; (vii) the number
of shares of Common Stock or Preferred Stock purchasable upon
exercise of a Stock Warrant and the price at which such shares may
be purchased upon exercise; (viii) the date on which the right to
exercise such Stock Warrants shall commence and the date on which
such right shall expire; (ix) if applicable, the minimum or maximum
amount of such Stock Warrants that may be exercised at any one
time; (x) the currency, currencies or currency units in which the
offering price, if any, and the exercise price are payable; (xi) if
applicable, a discussion of certain United States federal income
tax considerations; (xii) the antidilution provisions of such Stock
Warrants, if any; (xiii) the redemption or call provisions, if any,
applicable to such Stock Warrants; and (xiv) any additional terms
of such Stock Warrants, including terms, procedures and limitations
relating to the exchange and exercise of such Stock Warrants.
DESCRIPTION OF STOCK PURCHASE CONTRACTS
AND STOCK PURCHASE UNITS
The Company may issue Stock Purchase Contracts, including contacts
obligating holders to purchase from the Company, and the Company to
sell to the holders, a specified number of shares of Common Stock
or Preferred Stock at a future date or dates. The price per share
of Preferred Stock or Common Stock may be fixed at the time the
Stock Purchase Contracts are issued or may be determined by
reference to a specific formula set forth in the Stock Purchase
Contracts. The Stock Purchase Contracts may be issued separately
or as a part of units ("Stock Purchase Units") consisting of a
Stock Purchase Contract and Debt Securities or debt obligations of
third parties, including U.S. Treasury securities, securing the
holders' obligations to purchase the Preferred Stock or the Common
Stock under the Stock Purchase Contracts. The Stock Purchase Contracts
may require the Company to make periodic payments to the holders of the
Stock Purchase Units or visa versa, and such payments may be unsecured
or prefunded on some basis. The Stock Purchase Contracts may require
holders to secure their obligations thereunder in a specified manner.
The applicable Prospectus Supplement will describe the terms of any
Stock Purchase Contracts or Stock Purchase Units. The description
in the Prospectus Supplement will not purport to be complete and
will be qualified in its entirety by reference to the Stock
Purchase Contracts, and, if applicable, collateral arrangements and
depositary arrangements, relating to such Stock Purchase Contracts
or Stock Purchase Units.
PLAN OF DISTRIBUTION
The Company may sell the Securities being offered hereby in and/or
outside the United States (i) through underwriters or a group of
underwriters or dealers, (ii) through agents designated from time
to time or (iii) directly to purchasers.
If an underwriter or underwriters are utilized in the sale, the
Company will enter into an underwriting agreement with such
underwriters at the time of sale to them, and the names of the
underwriters and the terms and conditions of the transaction
(including underwriting discounts and commissions and other items
constituting underwriting compensation and discounts and
commissions to be allowed or paid to any dealers) will be set forth
in the Prospectus Supplement, which will be used by the
underwriters to make sales of the Offered Securities in respect of
which this Prospectus is delivered to the public. The underwriters
may be entitled, under the underwriting agreement, to
indemnification by the Company against certain civil liabilities,
including liabilities under the Securities Act. Only underwriters
named in the Prospectus Supplement are deemed to be underwriting in
connection with the Offered Securities in respect of which such
Prospectus Supplement and this Prospectus are delivered and any
firms not named therein are not parties to the underwriting
agreement in respect of such Offered Securities and will have no
direct or indirect participation in the underwriting thereof,
although they may participate in the distribution of such
Securities under circumstances where they may be entitled to a
dealer's commission.
If so indicated in the Prospectus Supplement, the Company will
authorize underwriters to solicit offers by certain institutions to
purchase Offered Securities from the Company at the price set forth
in the Prospectus Supplement pursuant to delayed delivery contracts
for payment and delivery at a future date. The Prospectus
Supplement will set forth the commission payable to the
underwriters for solicitation of such contracts.
Offers to purchase Offered Securities may be solicited directly by
the Company or by agents designated by the Company from time to
time. Unless otherwise indicated in the Prospectus Supplement, any
such agent will be acting on a best efforts basis for the period of
its appointment. Agents may be entitled under agreements which may
be entered into with the Company to indemnification by the Company
against certain civil liabilities, including liabilities under the
Securities Act.
If an agent or agents are utilized in the sale, such persons may be
deemed to be "underwriters", and any discounts, commissions or
concessions received by them from the Company or any profit on the
resale of Offered Securities by them may be deemed to be
underwriting discounts and commissions under the Securities Act.
Any such person who may be deemed to be an underwriter and any such
compensation received from the Company will be described in the
Prospectus Supplement.
The time and place for delivery of the Offered Securities in
respect of which this Prospectus is delivered are set forth in the
Prospectus Supplement.
LEGAL OPINIONS
The legality of the Securities to be offered hereby will be passed
upon for the Company by Fulbright & Jaworski L.L.P., 1301 McKinney
Street, Houston, Texas 77010, and for any underwriters or agents of
a particular issue of Offered Securities, by Vinson & Elkins
L.L.P., 1001 Fannin Street, First City Tower, Houston, Texas 77002
or by other counsel identified in the relevant Prospectus
Supplement as passing on the same for any such underwriters and
agents. Vinson & Elkins L.L.P. has represented the Company in
various legal matters from time to time.
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 in
reliance upon the authority of said firm as experts in giving said
report.
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. Other Expenses of Issuance and Distribution.*
Securities and Exchange Commission Registration Fee..$ 241,380
Printing and Engraving Expenses...................... 50,000
Accounting Fees and Expenses......................... 100,000
Legal Fees and Expenses.............................. 100,000
Trustee Fees......................................... 40,000
Fees of Rating Agencies.............................. 170,000
Blue Sky Fees and Expenses........................... 10,000
Miscellaneous........................................ 28,620
-----------
TOTAL...........................................$ 740,000
===========
_________________
*Estimated, except for the SEC Registration Fee.
ITEM 15. 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
(other than an action, suit or proceeding 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's 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 16. Exhibits.
SEC FILE OR
REGISTRATION EXHIBIT
NUMBER NUMBER
------------ --------
*1(a) Form of Underwriting Agreement (for equity 33-51879 1(a)
securities).
*1(b) Form of Underwriting Agreement (for debt 33-51879 1(b)
securities).
*4(a) Restated Certificate of Incorporation 1-6805 3(a)
dated December 7, 1991. (10-K,
September
30, 1993)
4(b) Bylaws, as amended through March 1, 1995.
*4(c) Rights Agreement, dated June 1, 1988, 1-6805 3.3
between the Registrant and Texas Commerce (10-K,
Bank National Association. September
10, 1988)
*4(d) First Amendment, dated March 1, 1989, to 1-6805 10.1
Rights Agreement, dated as of June 1, 1988, (10-Q,
between the Company and Texas Commerce Bank June 30,
National Association. 1989)
*4(e) Second Amendment, dated March 7, 1990, to 1-6805 4.1
Rights Agreement, dated as of June 1, 1988, (10-Q,
between the Registrant and First Chicago March 31,
Trust Company of New York as successor 1990)
Rights Agent.
*4(f) Restated Indenture, dated as of September 1-6805 4.8
1, 1991, between First City, Texas- Houston, (10-K,
National Association, Trustee, and the September
Registrant. 10, 1991)
*4(g) Indenture, dated as of August 1, 1987, 33-16537 4.1
between First RepublicBank Houston,
National Association, Trustee, and the
Registrant.
*4(h) First Supplemental Indenture, dated as of 33-51879 4(f)
January 11, 1994, between the Registrant
and NationsBank of Texas, National
Association, as Trustee.
5 Opinion of Fulbright & Jaworski L.L.P. as
to legality of the securities being
registered.
*12(a) Computation of Ratios of Earnings to Fixed 1-6805 12.1
Charges (for last five fiscal years). (10-K,
September
30, 1994)
*12(b) Computation of Ratios of Earnings to Fixed 16-6805 12.1
Charges (for quarter ended December 31, (10-Q,
1994) December 31,
1994
23(a) Consent of Arthur Andersen LLP
23(b) Consent of Binder Hamlyn
23(c) Consent of Fulbright & Jaworski L.L.P.
(included in their opinion filed as
Exhibit 5).
24 Powers of Attorney (included under the
caption "Power of Attorney and
Signatures").
25(a) Form T-1 Statement of Eligibility and
Qualification under the Trust Indenture
Act of 1939 of Texas Commerce Bank
National Association relating to the
Senior Indenture.
25(b) Form T-1 Statement of Eligibility and
Qualification under the Trust Indenture
Act of 1939 of NationsBank of Texas,
National Association relating to the
Subordinated Indenture.
- ----------------
* Incorporated by reference.
ITEM 17. Undertakings.
(a) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each
filing of the Registrant's annual report pursuant to Section 13(a)
or Section 15(d) of the Securities Exchange Act of 1934 that is
incorporated by reference in this Registration Statement shall be
deemed to be a new registration statement relating to the securities
offered herein, and the offering of such securities at that time shall
be deemed to be the initial bona fide offering thereof.
(b) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and
controlling persons of the Company, the Company has been advised
that in the opinion of the Securities and Exchange Commission, such
indemnification is against public policy as expressed in the
Securities Act and is, therefore, unenforceable. In the event that
a claim for indemnification against such liabilities (other than the
payment by the Company of expenses incurred or paid by a director,
officer or controlling person of the Company 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 Company will, unless in the
opinion of its counsel the matter has been settled by a controlling
precedent, submit to a court of appropriate jurisdiction the
question whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by
a final adjudication of such issue.
(c) 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;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the registration
statement (or the most recent post-effective amendment
thereof) which, individually or in the aggregate,
represent a fundamental change in the information set
forth in the registration statement;
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the
registration statement or any material change to such
information in the registration statement;
provided, however, that paragraphs (i) and (ii) above do not
apply if the information required to be included in a post-
effective amendment by those paragraphs is contained in periodic
reports filed by the Registrant pursuant to Section 13 and
Section 15(d) of the Exchange Act that are incorporated by
reference in the registration statement.
(2) That, for the purpose of determining any liability under
the Securities Act, 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.
(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.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended,
the Registrant certifies that it has reasonable grounds to believe that
it meets all of the requirements for the filing on Form S-3 and has duly
caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized in the City of Houston, State of
Texas, on this 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
------------------------------------
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/ Louis A. Waters
-----------------------------------
Louis A. Waters, Director
/s/ Marina v.N. Whitman
-----------------------------------
Marina v.N. Whitman, Director
April 27, 1995. /s/ Peter S. Willmott
------------------------------------
Peter S. Willmott, Director
EXHIBIT INDEX
SEC FILE OR
REGISTRATION EXHIBIT
NUMBER NUMBER
------------ --------
*1(a) Form of Underwriting Agreement (for equity 33-51879 1(a)
securities).
*1(b) Form of Underwriting Agreement (for debt 33-51879 1(b)
securities).
*4(a) Restated Certificate of Incorporation 1-6805 3(a)
(10-K,
September
30, 1993)
4(b) Bylaws, as amended through March 1, 1995.
*4(c) Rights Agreement, dated June 1, 1988, 1-6805 3.3
between the Registrant and Texas Commerce (10-K,
Bank National Association. September
10, 1988)
*4(d) First Amendment, dated March 1, 1989, to 1-6805 10.1
Rights Agreement, dated as of June 1, (10-Q, June
1988, between the Company and Texas 30, 1989)
Commerce Bank National Association.
*4(e) Second Amendment, dated March 7, 1990, to 1-6805 4.1
Rights Agreement, dated as of June 1, (10-Q, March
1988, between the Registrant and First 31, 1990)
Chicago Trust Company of New York as
successor Rights Agent.
*4(f) Restated Indenture, dated as of September 1-6805 4.8
1, 1991, between First City, Texas- (10-K,
Houston, National Association, Trustee, September
and the Registrant. 10, 1991)
*4(g) Indenture, dated as of August 1, 1987, 33-16537 4.1
between First RepublicBank Houston,
National Association, Trustee, and the
Registrant.
*4(h) First Supplemental Indenture, dated as of 33-51879 4(f)
January 11, 1994, between the Registrant
and NationsBank of Texas, National
Association, as Trustee.
5 Opinion of Fulbright & Jaworski L.L.P. as
to legality of the securities being
registered.
*12(a) Computation of Ratios of Earnings to Fixed 1-6805 12.1
Charges (for last five fiscal years) (10-K,
September
30, 1994
*12(b) Computation of Ratios of Earnings to Fixed 1-6805 12.1
Charges (for quarter ended December 31, (10-Q
December
31, 1994)
23(a) Consent of Arthur Andersen LLP
23(b) Consent of Binder Hamlyn
23(c) Consent of Fulbright & Jaworski L.L.P.
(included in their opinion filed as
Exhibit 5).
24 Powers of Attorney (included under the
caption "Power of Attorney and
Signatures").
25(a) Form T-1 Statement of Eligibility and
Qualification under the Trust Indenture
Act of 1939 of Texas Commerce Bank
National Association relating to the
Senior Indenture.
25(b) Form T-1 Statement of Eligibility and
Qualification under the Trust Indenture
Act of 1939 of NationsBank of Texas,
National Association relating to the
Subordinated Indenture.
- ------------------
* Incorporated by reference.
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
Fulbright & Jaworski
L.L.P.
Registered Limited Liability Partnership
1301 McKinney, Suite 5100 Houston
Houston, Texas 77010-3095 Washington, D.C.
Austin
Telephone: 713/651-5151 San Antonio
Telex: 76-2829 Dallas
Facsimile: 713/651-5246 New York
Los Angeles
London
Hong Kong
April 27, 1995
Browning-Ferris Industries, Inc.
757 N. Eldridge at Memorial
Houston, Texas 77079
Gentlemen:
We have acted as counsel for Browning-Ferris Industries, Inc., a
Delaware corporation (the "Company"), in connection with its filing with
the Securities and Exchange Commission (the "Commission") of a Registration
Statement on Form S-3 (the "Registration Statement") with respect to the
Company's (i) unsecured debt securities ("Debt Securities"), (ii) shares
of preferred stock, without par value ("Preferred Stock"), in one or more
series, (iii) shares of common stock, $.16 2/3 par value per share, includ-
ing the preferred stock purchase rights associated therewith (collectively,
"Common Stock"), (iv) warrants to purchase Debt Securities, Preferred Stock
or Common Stock ("Warrants"), (v) stock purchase contracts to purchase
Preferred Stock or Common Stock ("Stock Purchase Contracts") and (vi) stock
purchase units, each representing ownership of a Stock Purchase Contract and
Debt Securities or debt obligations of third parties, including U.S. Treasury
securities, securing the holder's obligation to purchase the Preferred Stock
or Common Stock under the Stock Purchase Contract ("Stock Purchase Units"
and, together with the Debt Securities, the Preferred Stock, the Common
Stock and the Stock Purchase Contracts, the "Securities"), to be issued
from time to time pursuant to Rule 415 under the Securities Act of 1933,
as amended (the "Securities Act"), for an aggregate initial offering price
not to exceed $700,000,000.
We have examined (i) the Restated Certificate of Incorporation and By-Laws
of the Company, each as amended to date, (ii) the Restated Indenture dated
as of September 1, 1991, between the Company and Texas Commerce Bank National
Association, as trustee (the "Senior Debt Indenture"), pursuant to which Debt
Securities may be issued, (iii) the Indenture dated as of August 1, 1987,
between the Company and NationsBank of Texas, National Association, as
trustee (successor trustee to First RepublicBank Houston, National
Association), as amended by a First Supplemental Indenture dated as of
January 11, 1994 (the "Subordinated Debt Indenture"), pursuant to which
Debt Securities may be issued, (iv) the Registration Statement, and
(v) such certificates, statutes and other instruments and documents as
we considered appropriate for purposes of the opinions hereafter expressed.
In connection with this opinion, we have assumed that (i) the Registration
Statement, and any amendments thereto (including post-effective amendments),
will have become effective; (ii) a Prospectus Supplement will have been pre-
pared and filed with the Commission describing the Securities offered thereby;
(iii) all Securities will be issued and sold in compliance with applicable
federal and state securities laws and in the manner stated in the Registration
Statement and the appropriate Prospectus Supplement; (iv) a definitive
purchase, underwriting or similar agreement with respect to any Securities
offered will have been duly authorized and validly executed and delivered
by the Company and the other parties thereto: and (v) any Securities issuable
upon conversion, exchange or exercise of any Security being offered will be
duly authorized, created and, if appropriate, reserved for issuance upon such
conversion, exchange or exercise.
Based upon and subject to the foregoing, we are of the opinion that:
1. With respect to shares of Common Stock, when (i) the Board of
Directors of the Company or, to the extent permitted by Section 141(c)
of the General Corporation Law of the State of Delaware, a duly
constituted and acting committee thereof (such Board of Directors
or committee being referred to herein as the "Board"), has taken all
necessary corporate action to approve the issuance of and the terms of
the offering of the shares of Common Stock and related matters; and (ii)
certificates representing the shares of Common Stock have been duly
executed, countersigned, registered and delivered either (a) in
accordance with the applicable definitive purchase, underwriting or
similar agreement approved by the Board upon payment of the consideration
therefor (not less than the par value of the Common Stock) provided for
therein, or (b) upon conversion, exchange or exercise of any other
Security in accordance with the terms of such Security or the instrument
governing such Security providing for such conversion, exchange or
exercise as approved by the Board, for the consideration approved by
the Board (not less than the par value of the Common Stock), the shares
of Common Stock will be duly authorized, validly issued, fully paid and
nonassessable.
2. With respect to shares of Preferred Stock, when (i) the Board has
taken all necessary corporate action to approve the issuance and
terms of the shares of Preferred Stock, the terms of the offering
thereof and related matters, including the adoption of a Certificate
of Designation relating to such Preferred Stock (a "Certificate") and
the filing of such Certificate with the Secretary of State of the State
of Delaware; and (ii) certificates representing the shares of Preferred
Stock have been duly executed, countersigned, registered and delivered
either (a) in accordance with the applicable definitive purchase,
underwriting or similar agreement approved by the Board upon payment
of the consideration therefor provided for therein, or (b) upon
exercise of any other Security, in accordance with the terms of such
Security or the instrument governing such Security providing for such
exercise as approved by the Board, for the consideration approved by
the Board, the shares of Preferred Stock will be duly authorized,
validly issued, fully paid and nonassessable.
3. With respect to Debt Securities to be issued under the Senior Debt
Indenture, when (i) the Senior Debt Indenture has been duly qualified
under the Trust Indenture Act of 1939, as amended; (ii) the Board has
taken all necessary corporate action to approve the issuance and terms
of such Debt Securities, the terms of the offering thereof and related
matters; and (iii) such Debt Securities have been duly executed,
authenticated, issued and delivered in accordance with the provisions
of the Senior Debt Indenture and either (a) in accordance with the
applicable definitive purchase, underwriting or similar agreement
approved by the Board upon payment of the consideration therefor
provided for therein, or (b) upon exercise of any other Security, in
accordance with the terms of such Security or the instrument governing
such Security providing for such exercise as approved by the Board, for
the consideration approved by the Board, such Debt Securities will
be legally issued and will constitute valid and binding obligations of
the Company, enforceable against the Company in accordance with their
terms, except as such enforcement is subject to any applicable
bankruptcy, insolvency, reorganization or other law relating to
or affecting creditors' rights generally and general principles
of equity.
4. With respect to Debt Securities to be issued under the Subordinated
Debt Indenture, when (i) the Subordinated Debt Indenture has been duly
qualified under the Trust Indenture Act of 1939, as amended; (ii) the
Board has taken all necessary corporate action to approve the issuance
and terms of such Debt Securities, the terms of the offering thereof
and related matters; and (iii) such Debt Securities have been duly
executed, authenticated, issued and delivered in accordance with the
provisions of the Subordinated Debt Indenture and either (a) in
accordance with the applicable definitive purchase, underwriting or
similar agreement approved by the Board upon payment of the
consideration therefor provided for therein, or (b) upon exercise
of any other Security, in accordance with the terms of such Security
or the instrument governing such Security providing for such exercise
as approved by the Board, for the consideration approved by the Board,
such Debt Securities will be legally issued and will constitute valid
and binding obligations of the Company, enforceable against the Company
in accordance with their terms, except as such enforcement is subject to
any applicable bankruptcy, insolvency, reorganization or other law
relating to or affecting creditors' rights generally and general
principles of equity.
5. With respect to the Warrants, when (i) the Board has taken all
necessary corporate action to approve the creation of and the
issuance and terms of the Warrants, the terms of the offering
thereof and related matters; (ii) the warrant agreement or agreements
relating to the Warrants have been duly authorized and validly executed
and delivered by the Company and the warrant agent appointed by the
Company; and (iii) the Warrants or certificates representing the
Warrants have been duly executed, countersigned, registered and
delivered in accordance with the appropriate warrant agreement or
agreements and the applicable definitive purchase, underwriting or
similar agreement approved by the Board upon payment of the consider-
ation therefor provided for therein, the Warrants will be duly
authorized and validly issued.
6. With respect to the Stock Purchase Contracts, when (i) the Board has
taken all necessary corporate action to approve the creation of and
the issuance and terms of the Stock Purchase Contracts, the terms of
the offering thereof and related matters; and (ii) the Stock Purchase
Contracts have been duly authorized and validly executed and delivered
by the Company and the underwriters for such offering in accordance
with the applicable definitive purchase, underwriting or similar
agreement approved by the Board upon payment of the consideration
provided for therein, the Stock Purchase Contracts will be duly
authorized and validly issued.
7. With respect to the Stock Purchase Units, when (i) the Board has
taken all necessary corporate action to approve the creation of
and the issuance and terms of the Stock Purchase Units, the terms
of the offering thereof and related matters; (ii) the deposit
agreement relating to the Stock Purchase Units has been duly
authorized and validly executed and delivered by the Company and
the depositary appointed by the Company; and (iii) the Stock
Purchase Units or certificates representing the Stock Purchase
Units have been duly executed, countersigned, registered and
delivered in accordance with the appropriate depositary agreement
and the applicable definitive purchase, underwriting or similar
agreement approved by the Board upon payment of the consideration
therefor provided for therein, the Stock Purchase Units will be duly
authorized and validly issued.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to the statements made with respect to us under
the caption "Legal Opinions" in the Prospectus included as part of the
Registration Statement.
Very truly yours,
/s/ Fulbright & Jaworksi
__________________________
Fulbright & Jaworski L.L.P.
EXHIBIT 23(a)
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation
by reference in this Registration Statement on Form S-3 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.
/s/ ARTHUR ANDERSEN LLP
Houston, Texas
April 27, 1995
EXHIBIT 23(b)
CONSENT OF INDEPENDENT CHARTERED ACCOUNTANTS
As independent chartered accountants, we hereby consent to the
incorporation by reference in this Registration Statement on Form
S-3 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
***************************************************************
FORM T-1
SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
Statement of Eligibility Under the Trust Indenture
Act of 1939 of a Corporation Designated to Act as Trustee
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A TRUSTEE PURSUANT
TO SECTION 305(b)(2) [Not Applicable.]
TEXAS COMMERCE BANK NATIONAL ASSOCIATION
(Exact name of trustee as specified in its charter)
Not applicable
(Jurisdiction of incorporation or organization
if not a U.S. national bank)
74-0800980
(I.R.S. Employer Identification No.)
712 Main Street, Houston, Texas 77002
(Address of principal executive offices) (Zip code)
Carol Kirkland, 712 Main Street, 26th Floor,
Houston, Texas 77002, (713) 546-2449
(Name, address and telephone number of agent for service)
Browning-Ferris Industries, Inc.
(Exact name of obligor as specified in its charter)
Delaware 74-1673682
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
757 N. Eldridge, Houston, Texas 77079
(Address of principal executive offices) (Zip Code)
Debt Securities
(Title of the indenture securities)
****************************************************************
Item 1. General Information.
Furnish the following information as to the trustee--
(a) Name and address of each examining or supervising authority to
which it is subject.
Comptroller of the Currency, Washington, D. C.
Federal Deposit Insurance Corporation,
Washington, D. C.
The Board of Governors of the Federal Reserve System, Washington,
D. C.
(b) Whether it is authorized to exercise corporate trust powers.
The trustee is authorized to exercise corporate trust powers.
Item 2. Affiliations with the obligor.
If the obligor is an affiliate of the trustee, describe each such
affiliation.
As of April 14, 1995
No such affiliation exists.
See Note, Page 9 hereof.
Item 3. Voting Securities of the trustee.
Furnish the following information as to each class of voting securities
of the trustee.
As of April 14, 1995
Column A Column B
Title of Class Amount Outstanding
(1) Texas Commerce Bank National Association 5,000,000
Common Stock
Item 4. Trusteeships under other indentures.
If the trustee is a trustee under another indenture under which any
other securities, or certificates of interest or participation in any other
securities, of the obligor are outstanding, furnish the following
information:
As of April 14, 1995
(a) Title of the securities outstanding under each such other
indenture.
$100,000,000 Browning-Ferris Industries, Inc.
9 1/4% Debentures due 5/1/2021
$300,000,000 Browning-Ferris Industries, Inc.
7 7/8% Debentures due 3/01/2025
(b) A brief statement of the facts relied upon as a basis for the claim
that no conflicting interest within the meaning of Section
310(b)(1) of the Act arises as a result of the trusteeship under
any such other indenture, including a statement as to how the
indenture securities will rank as compared with the securities
issued under such other indenture.
These outstanding securities are issued pursuant to the same indenture
under which any new securities will be issued, all of which are unsecured and
are equal and ratable.
- -----------
(1) Texas Commerce Bancshares, Inc., a registered bank holding company,
owns all of such shares, except for directors' qualifying shares.
Item 5. Interlocking directorates and similar relationships with obligor or
underwriters.
If the trustee or any of the directors or executive officers of the
trustee is a director, officer, partner, employee, appointee, or
representative of the obligor or of any underwriter for the obligor, identify
each such person having any such connection and state the nature of each such
connection.
As of April 14, 1995
Marc J. Shapiro, Chairman, President and a
director of the trustee, serves on the Board of
Directors of obligor
See Note, Page 9 hereof.
Item 6. Voting securities of the trustee owned by the obligor or its
officials.
Furnish the following information as to the voting securities of the
trustee owned beneficially by the obligor and each director, partner and
executive officer of the obligor.
As of April 14, 1995
Based upon an examination of the books and records of the
trustee, inquiries made by the trustee and information furnished to
the trustee by the obligor, voting securities of the trustee, owned
beneficially, directly or indirectly, by the obligor and its
directors, partners and executive officers, taken as a group, do
not exceed 1% of the outstanding voting securities of the trustee.
Item 7. Voting securities of the trustee owned by underwriters or their
officials.
Furnish the following information as to the voting securities of the
trustee owned beneficially by each underwriter for the obligor and each
director, partner, and executive officer of each such underwriter.
As of April 14, 1995
No single underwriter, its directors, partners and executive
officers, taken as a group, owned beneficially,
directly or indirectly, in excess of 1% of the outstanding voting securities
of the trustee.
See Note, Page 9 hereof.
Item 8. Securities of the obligor owned or held by the trustee.
Furnish the following information as to securities of the obligor owned
beneficially or held as collateral security for obligations in default by the
trustee.
As of April 14, 1995
No such securities were so owned or held.
See Note, Page 9 hereof.
Item 9. Securities of underwriters owned or held by the trustee.
If the trustee owns beneficially or holds as collateral security for
obligations in default any securities of an underwriter for the obligor,
furnish the following information as to each class of securities of such
underwriter any of which are so owned or held by the trustee.
As of April 14, 1995
The trustee did not so own or hold in excess of 1% of any class of
security outstanding of any such person.
See Note, Page 9 hereof.
Item 10. Ownership or holdings by the trustee of voting securities of
certain affiliates or security holders of the obligor.
If the trustee owns beneficially or holds as collateral security for
obligations in default voting securities of a person who, to the knowledge of
the trustee (1) owns 10% or more of the voting securities of the obligor or
(2) is an affiliate, other than a subsidiary, of the obligor, furnish the
following information as to the voting securities of such person.
As of April 14, 1995
No such securities were so owned or held.
See Note, Page 9 hereof.
Item 11. Ownership or holdings by the trustee of any securities of a person
owning 50% or more of the voting securities of the obligor.
If the trustee owns beneficially or holds as collateral security for
obligations in default any securities of a person who, to the knowledge of
the trustee, owns 50% or more of the voting securities of the obligor,
furnish the following information as to each class of securities of such
person any of which are so owned or held by the trustee.
As of April 14, 1995
No such securities were so owned or held.
See Note, Page 9 hereof.
Item 12. Indebtedness of the Obligor to the Trustee.
Except as noted in the instructions to the Form T-1, if the obligor is
indebted to the trustee, furnish the following information: nature of
indebtedness, amount outstanding and date due.
As of April 14, 1995.
The obligor has a $39,000,000 revolving line of credit with the trustee due
December 31, 1996, on which no debt is presently outstanding.
See Note, Page 9 hereof.
Item 13. Defaults by the Obligor.
(c) State whether there is or has been a default with respect to the
securities under this indenture. Explain the nature of any such
default.
As of April 14, 1995.
No such default exists or has existed.
(d) If the trustee is a trustee under another indenture under which any
other securities, or certificates of interest or participation in
any other securities, of the obligor are outstanding, or is trustee
for more than one outstanding series of securities under the
indenture, state whether there has been a default under any such
indenture or series, identify the indenture or series affected, and
explain the nature of any such default.
As of April 14, 1995.
There has been no default of which the Trustee has knowledge.
Item 14. Affiliations with the Underwriters.
If any underwriter is an affiliate of the trustee, describe each such
affiliation.
As of April 14, 1995.
No such affiliation exists.
See Note, Page 9 hereof.
Item 15. Foreign Trustee.
Identify the order or rule pursuant to which the foreign trustee is
authorized to act as sole trustee under indentures qualified or to be
qualified under the Act.
Not applicable.
Item 16. List of Exhibits.
List below all exhibits filed as part of this statement of eligibility.
* 1. A copy of the articles of association of the trustee as
now in effect.
** 2. A copy of the certificate of authority of the trustee to
commence business.
** 3. A copy of the certificate of authorization of the trustee
to exercise corporate trust powers issued by the Board of Governors
of the Federal Reserve System under date of January 21, 1948.
*** 4. A copy of the existing bylaws of the trustee.
5. A copy of each indenture referred to in Item 4, if the
obligor is in default. Not Applicable.
6. The consent of the United States institutional trustees
required by Section 321(b) of the Act.
**** 7. A copy of the latest report of condition of the trustee
published pursuant to law or the requirements of its supervising or
examining authority.
8. A copy of any order pursuant to which the foreign trustee
is authorized to act as sole trustee under indentures qualified or
to be qualified under the Act. Not applicable.
9. Foreign trustees are required to file a consent to service
of process on Form F-X. Not applicable.
- ------------------
* Incorporated by reference to Exhibit bearing the same Exhibit
number submitted with the Form T-1 of Texas Commerce Bank National
Association with respect to File No. 33-51417.
** Incorporated by reference to Exhibit bearing the same Exhibit
number submitted with the Form T-1 of Texas National Bank of
Commerce of Houston with respect to File No. 2-24599.
*** Incorporated by reference to Exhibit bearing the same Exhibit
number submitted with the Form T-1 of Texas Commerce Bank National
Association with respect to File No. 33-0286.
**** Incorporated by reference to Exhibit bearing the same Exhibit
number submitted with the Form T-1 of Texas Commerce Bank National
Association with respect to File No. 22-26606, Registration Number
33-90582.
[Remainder of Page Intentionally Left Blank]
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939 the
trustee, Texas Commerce Bank National Association, a national banking
association organized and existing under the laws of the United States of
America, has duly caused this statement of eligibility to be signed on its
behalf by the undersigned, thereunto duly authorized, all in the City of
Houston, and State of Texas, on the 27th day of April, 1995.
TEXAS COMMERCE BANK NATIONAL ASSOCIATION
(Trustee)
/s/ Donald R. Robinson
By:___________________________________
Name: Donald R. Robinson
Title: Vice President & Trust Officer
NOTE
The answers to this statement insofar as such answers relate to what
persons have been underwriters for any securities of the obligor within three
years prior to the date of filing this statement or will be the underwriters
for the indenture securities, or are owners of 10% or more of the voting
securities of the obligor, or are owners of 50% or more of the voting
securities of the obligor or are affiliates, and the amounts and percentages
of such securities, if any, owned by each of the foregoing, respectively, are
based upon information furnished to the trustee by the obligor and the
underwriter. While the trustee has no reason to doubt the accuracy of any
such information, it cannot accept any responsibility therefor. Accordingly,
the trustee disclaims responsibility as to the accuracy and completeness of
the information received from the obligor and the underwriter relating to the
answers to items 2, 5, 7, 8, 9, 10, 11, 12 and 14.
Inasmuch as this statement is filed prior to the final determination of
all underwriters of the indenture securities, the answers to items 5, 7, 9
and 14 are based on incomplete information, but may be considered as correct
unless additional information is furnished by amendment.
Exhibit 6
April 27, 1995
Securities & Exchange Commission
Washington, D.C. 20549
Gentlemen:
The undersigned is trustee under an Restated Indenture dated as
of September 1, 1991, as supplemented from time to time by
supplemental indentures thereto, between Browning-Ferris
Industries, Inc. and Texas Commerce Bank National Association, as
Trustee, entered into in connection with the issuance of its Debt
Securities.
In accordance with Section 321(b) of the Trust Indenture Act of
1939, the undersigned hereby consents that reports of examinations
of the undersigned, made by Federal or State authorities authorized
to make such examinations, may be furnished by such authorities to
the Securities & Exchange Commission upon its request therefor.
Very truly yours,
TEXAS COMMERCE BANK
NATIONAL ASSOCIATION
/s/ David R. Robinson
_____________________________
David R. Robinson
Vice President & Trust Officer
As filed with the Securities and Exchange Commission on April 27, 1995
Registration No. 22-. . . . .
-----------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
______________
FORM T-1
STATEMENT OF ELIGIBILITY UNDER THE
TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY
OF A TRUST PURSUANT TO SECTION 305(b)(2)___
_______________
NATIONSBANK OF TEXAS, NATIONAL ASSOCIATION
(Exact name of trustee as specified in its charter)
Not Applicable
(Jurisdiction of incorporation or organization if not a U.S. national bank)
75-2238693
(I.R.S. Employer
Identification No.)
700 Louisiana, Houston, Texas 77002
(Address of principal executive offices) (Zip Code)
Mary Jane Henson
NationsBank of Texas, National Association
700 Louisiana
Houston, Texas 77002
(713) 247-7812
(Name, address and telephone number of agent for service)
_________________
BROWNING-FERRIS INDUSTRIES, INC.
(Exact name of obligor as specified in its charter)
Delaware 74-1673682
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
757 N. Eldridge
Houston, Texas 77079
(Address of principal (Zip Code)
executive offices)
Subordinated Debt Securities
(Title of the indenture securities)
- -------------------------------------------------------------------
Item 1. General Information.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority to
which it is subject.
Comptroller of the Currency, Washington, D.C.
Federal Deposit Insurance Corporation, Washington, D.C.
Board of Governors of The Federal Reserve System, Washington, D.C.
National Bank Examiners, Dallas, Texas
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
Item 2. Affiliations with the obligor.
If the obligor is an affiliate of the trustee, describe each such affiliation.
The obligor is not an affiliate of the trustee.
Item 3. Voting securities of the trustee.
Furnish the following information as to each class of voting securities
of the trustee:
Col. A Col. B
Title of Class Amount outstanding
-------------- ------------------
Not applicable by virtue of Form T-1 General Instruction B and
response to Item 13.
Item 4. Trusteeships under other indentures.
If the trustee is a trustee under another indenture under which any
other securities, or certificates of interest or participation in any
other securities, of the obligor are outstanding, furnish the following
information:
(a) Title of the securities outstanding under each such other
indenture.
Not applicable by virtue of Form T-1 General Instruction B and
response to Item 13.
(b) A brief statement of the facts relied upon as a basis for the
claim that no conflicting interest within the meaning of Section
310(b)(1) of the Act arises as a result of the trusteeship under any
such other indenture, including a statement as to how the indenture
securities will rank as compared with the securities issued under
such other indenture.
Not applicable by virtue of Form T-1 General Instruction B and
response to Item 13.
Item 5. Interlocking directorates and similar relationships with the
obligor or underwriters.
If the trustee or any of the directors or executive officers of the
trustee is a director, officer, partner, employee, appointee or
representative of the obligor or of any underwriter for the obligor,
identify each such person having any such connection and state the nature
of each such connection.
Not applicable by virtue of Form T-1 General Instruction B and
response to Item 13.
Item 6. Voting securities of the trustee owned by the obligor or its
officials.
Furnish the following information as to the voting securities of the
trustee owned beneficially by the obligor and each director, partner and
executive officer of the obligor.
Not applicable by virtue of Form T-1 General Instruction B and
response to Item 13.
Item 7. Voting securities of the trustee owned by underwriters or their
officials.
Furnish the following information as to the voting securities of the
trustee owned beneficially by each underwriter for the obligor and each
director, partner and executive officer of each such underwriter.
Col. A Col. B Col. C Col. D
Percentage of
voting securities
represented by
Amount owned amount given
Name of owner Title of class beneficially in Co. C
- ----------------------------------------------------------------------------
Not applicable by virtue of Form T-1 General Instruction B and response to
Item 13.
Item 8. Securities of the obligor owned or held by the trustee.
Furnish the following information as to securities of the obligor
owned beneficially or held as collateral security for obligation in
default by the trustee.
Col. A Co. B Col. C Col. D
Whether the Amount owned
securities are beneficially or held Percentage of class
voting or as collateral security represented by
nonvoting for obligations in amount given
Title of class securities default in Col. C
- ------------------------------------------------------------------------------
Not applicable by virtue of Form T-1 General Instruction B and
response to Item 13.
Item 9. Securities of underwriters owned or held by the trustee.
If the trustee owns beneficially or holds as collateral security for
obligations in default any securities of an underwriter for the obligor,
furnish the following information as to each class of securities of such
underwriter any of which are so owned or held by the trustee.
Col. A Co. B Col. C Col. D
Amount owned
beneficially or held Percentage of class
as collateral security represented by
Name of issuer and Amount for obligations in amount given
title of class outstanding default by trustee in Col. C
- ------------------------------------------------------------------------------
Not applicable by virtue of Form T-1 General Instruction B and
response to Item 13.
Item 10. Ownership or holdings by the trustee of voting securities of
certain affiliates or security holders of the obligor.
If the trustee owns beneficially or holds as collateral security for
obligations in default voting securities or a person who, to the knowledge
of the trustee (1) owns 10 percent or more of the voting securities of the
obligor or (2) is an affiliate, other than a subsidiary, of the obligor,
furnish the following information as to the voting securities of such
person.
Col. A Co. B Col. C Col. D
Amount owned
beneficially or held Percentage of class
as collateral security represented by
Name of issuer and Amount for obligations in amount given
title of class outstanding default by trustee in Col. C
- ------------------------------------------------------------------------------
Not applicable by virtue of Form T-1 General Instruction B and
response to Item 13.
Item 11. Ownership or holdings by the trustee of any securities of a
person owning 50 percent or more of the voting securities of the
obligor.
If the trustee owns beneficially or holds as collateral security for
obligations in default any securities of a person who, to the knowledge of
the trustee, owns 50 percent or more of the voting securities of the
obligor, furnish the following information as to each class of securities
of such person any of which are so owned or held by the trustee.
Col. A Co. B Col. C Col. D
Amount owned
beneficially or held Percentage of class
as collateral security represented by
Name of issuer and Amount for obligations in amount given
title of class outstanding default by trustee in Col. C
- ------------------------------------------------------------------------------
Not applicable by virtue of Form T-1 General Instruction B and
response to Item 13.
Item 12. Indebtedness of the obligor to the trustee.
Except as noted in the instructions, if the obligor is indebted to
the trustee, furnish the following information:
Col. A Col. B Col. C
Nature of Amount
Indebtedness Outstanding Date Due
------------------------------------------------
Not applicable by virtue of Form T-1 General Instruction B and
response to Item 13.
Item 13. Defaults by the obligor.
(a) State whether there is or has been a default with respect
to the securities under this indenture. Explain the nature of any such
default.
There is not, nor has there been, a default with respect to the
securities under this indenture.
(b) If the trustee is a trustee under another indenture under
which any other securities, or certificates of interest or
participation in any other securities, of the obligor are outstanding,
or is trustee for more than one outstanding series of securities under
the indenture, state whether there has been a default under any such
indenture or series, identify the indenture or series affected, and
explain the nature of any such default.
There has not been a default under any such indenture or series.
Item 14. Affiliations with the underwriters.
If any underwriter is an affiliate of the trustee, describe each
such affiliation.
Not applicable by virtue of Form T-1 General Instruction B and
response to Item 13.
Item 15. Foreign trustee.
Identify the order or rule pursuant to which the foreign trustee is
authorized to act as sole trustee under indentures qualified or to be
qualified under the Act.
Not applicable.
Item 16. List of exhibits.
List below all exhibits filed as a part of this statement of
eligibility.
*1 A copy of the articles of association of the trustee as now in
effect.
*2 - A copy of the certificate of authority of the trustee to
commence business.
*3 - A copy of the authorization of the trustee to exercise
corporate trust powers.
*4 - A copy of the existing bylaws of the trustee.
5 - Not applicable.
6 - The consent of the trustee required by Section 321(b) of
the Act.
7 - A copy of the latest report of condition of the trustee
published pursuant to law or the requirements of its supervising or
examining authority.
8 - Not applicable.
9 - Not applicable.
*Exhibits 1 through 4 were attached to the Statement of Eligibility
and Qualification, executed by NationsBank of Texas, National Association,
and filed as part of the Registration Statement (Registration No. 33-
47232) for registration under the Securities Act of 1933, as amended, of
Mobile Telecommunications Technologies Corp., and are incorporated herein
by reference.
In answering any item in this Statement of Eligibility and
Qualification which relates to matters peculiarly within the knowledge of
the obligor or of its partners, directors or executive officers, the
undersigned, NationsBank of Texas, National Association, has relied upon
information furnished to it by the obligor, and the undersigned disclaims
responsibility for the accuracy or completeness of such information.
__________________
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939 the
trustee, NationsBank of Texas, National Association, a national banking
association organized and existing under the laws of the United States of
America, has duly caused this statement of eligibility and qualification
to be signed on its behalf by the undersigned, thereunto duly authorized,
all in the City of Houston and State of Texas, on the 27th day of April,
1995.
NATIONSBANK OF TEXAS,
National Association
By: /s/ Maryem H. Magee
----------------------------
Name: Maryem H. Magee
Title: Assistant Vice President
& Trust Officer
Exhibit 6
TRUSTEE'S CONSENT
NationsBank of Texas, National Association, as a condition to
qualification under the Trust Indenture Act of 1939, consents that reports
of examinations by federal, state, territorial, or district authorities,
pursuant to the provisions of said Act, may be furnished by such
authorities to the Securities and Exchange Commission of the United States
upon request of said Commission for said reports, as provided in Section
321(b) of said Trust Indenture Act of 1939.
Dated this 27th day of April, 1995.
NATIONSBANK OF TEXAS,
National Association
By: /s/ Maryem H. Magee
---------------------------------
Name: Maryem H. Magee
Title: Assistant Vice President
& Trust Officer
EXHIBIT 7
NATIONSBANK OF TEXAS, N.A. Call Date: 12/31/94 ST-BK: 48-2132 FFIEC 031
ONE NATIONSBANK PLAZA NC1-002-17-17 Page RC-1
CHARLOTTE, NC 28255 Vendor ID: D CERT: 27306 11
Transit Number: 11000025
Consolidated Report of Condition for Insured Commercial and
State-Chartered
Savings Banks for December 31, 1994
All schedules are to be reported in thousands of dollars. Unless otherwise
indicated, report the amount outstanding as of the last business day of the
quarter.
Schedule RC - Balance Sheet
C400 <-
Dollar Amounts in Thousands
- ------------------------------------------------------------------------------
ASSETS
1. Cash and balance due from depository
institutions (from Schedule RC-A): RCFD
----
a. Noninterest-bearing balances
and currency and coin (1) 0081 2,569,591 1.a
b. Interest-bearing balances (2) 0071 92,258 1.b
2. Securities
a. Held-to-maturity securities (from 1754 3,083,640 2.a.
Schedule RC-B, Column A)
b. Available-for-sale securities (from
Schedule RC-B, Column D) 1773 2,743,804 2.b.
3. Federal funds sold and securities pur-
chased under agreements to resell in
domestic offices of the bank and of its
Edge and Agreement subsidiaries, and in
IBFs:
a. Federal funds sold 0276 629,954 3.a
b. Securities purchased under agreements
to resell 0277 310,753 3.b
4. Loans and Lease financing receivables:
a. Loans and Leases, net of unearned
income RCFD
----
(from Schedule RC-C) 2122 28,109,535 4.a
b. LESS: Allowance for loan
and Lease Losses 3123 274,794 4.b
c. LESS: Allocated transfer
risk reserve 3128 0 4.c
d. Loans and Leases, net of
unearned income, allowance,
and reserve (items 4.a. minus
4.b and 4.c) 2125 27,834,741 4.d
5. Assets held in trading accounts 3545 17,504 5.
6. Premises and fixed assets (including
capitalized leases) 2145 523,010 6.
7. Other real estate owned (from
Schedule RC-M) 2150 6,111 7.
8. Investments in unconsolidated sub-
sidiaries and associated companies (from
Schedule RC-M) 2130 1 8.
9. Customers' Liability to this bank on
acceptances outstanding 2155 178,173 9.
10. Intangible assets (from Schedule RC-M) 2143 375,463 10.
11. Other assets (from Schedule RC-F) 2160 963,962 11.
12. Total assets (sum of items 1 through 11) 2170 39,328,965 12.
- -----
(1) Includes cash items in process of collection and unposed debits.
(2) Includes time certificates of deposit not held in trading accounts.
C400 <-
Dollar Amounts in Thousands
- ------------------------------------------------------------------------------
LIABILITIES
13. Deposits: RCON
----
a. In domestic offices (sum of
totals of columns A and C from
Schedule RC-E, Part I) 2200 22,541,022 13.a
(1) Noninterest-bearing (1) 6631 5,593,023 13.a.1
(2) Interest-bearing 6636 16,947,999 13.a.2
b. In foreign offices, Edge and
Agreement subsidiaries, and RCFN
IBFs (from Schedule RC-E, ----
part II) 2200 3,557,539 13.b
(1) Noninterest-bearing (1) 6631 225 13.b.1
(2) Interest-bearing 6636 3,557,314 13.b.2
14. Federal funds purchased and
securities sold under agreements
to repurchase in domestic offices
of the bank and of its Edge and
Agreement subsidiaries, and in RCFD
IBFs: ----
a. Federal funds purchased 0278 7,990,613 14.a
b. Securities sold under
agreements to repurchase 0279 504,380 14.b.
RCON
15. Demand notes issued ----
a. U.S. Treasury 2840 50,222 15.a
b. Trading liabilities 3548 5,486 15.b
----
16. Other borrowed Money:
a. With original maturity of 2332 1,384,035 16.a
one year or less
b. With original maturity of 2333 118,657 16.b
more than one year
17. Mortgage indebtedness and
obligations under capitalized
Leases 2910 11,044 17.
18. Bank's Liability on acceptances
executed and outstanding 2920 178,173 18.
19. Subordinated notes and
debentures 3200 301,331 19.
20. Other Liabilities
(from Schedule RC-G) 2930 384,962 20.
21. Total Liabilities (sum of
items 13 through 20) 2948 37,027,464 21.
22. Limited-Life preferred stock
and related surplus 3282 0 22.
EQUITY CAPITAL
23. Perpetual preferred stock and
related surplus 3838 0 23.
24. Common Stock 3230 500,000 24.
25. Surplus (exclude all surplus
related to preferred stock) 3839 900,929 25.
26. a. Undivided profits and capital
reserves 3632 954,056 26.a
b. LESS: Net unrealized loss on
available for sale 8434 (53,484) 26.b
27. Cumulative foreign currency
translation adjustments 3284 0 29.
28. Total equity capital (sum of
items 23 through 27) 3210 2,301,501 28.
29. Total liabilities, limited-life
preferred stock, and equity
capital (sum of items 21, 22,
and 28) 3300 39,328,965 29.
Memorandum
To be reported only with the March Report of Condition.
1. Indicate in the box at the right
the number of the statement below
that best describes the most
comprehensive level of auditing
work performed for the bank by RCFD Number
independent external auditors as ---- ------------
of any date during 1993 6724 N/A M.1
1 = Independent audit of the bank conducted in accordance with generally
accepted auditing standards by a certified public accounting firm which
submits a report on the bank.
2 = Independent audit of the bank's parent holding company conducted in
accordance with generally accepted auditing standards by a certified
public accounting firm which submits a report on the consolidated holding
company (but not on the bank separately).
3 = Directors' examination of the bank conducted in accordance with generally
accepted auditing standards by a certified public accounting firm (may be
required by state chartering authority).
4 = Directors' examination of the bank performed by other external auditors
(may be required by state chartering authority).
5 = Review of the bank's financial statements by external auditors.
6 = Compilation of the bank's financial statements by external auditors.
7 = Other audit procedures (excluding tax preparation work).
8 = No external audit work.
- --------
(1) Includes total demand deposits and noninterest-bearing time and savings
deposits.
