SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
Browning-Ferris Industries, Inc.
(Name of Issuer)
Common Stock, $16-2/3 Par Value
(Title of Class of Securities)
115885 10 5
(CUSIP Number)
Alan C. Frazier Gerald K. Burger
Vice President Vice President and Secretary
Wachovia Bank of North Browning-Ferris Industries, Inc.
Carolina, N.A. 757 N. Eldridge
301 North Main Street Houston, TX 77079
Winston-Salem, NC 27150-3099 (713) 870-8100
(910) 770-6984
_________________________________________________________________
(Name, address and telephone number of person authorized
to receive notices and communications)
February 28, 1995
_________________________________________________________________
(Date of Event which requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule
13G to report the acquisition which is the subject of this Schedule
13D, and is filing this schedule because of Rule 13d-1(b)(3) or
(4), check the following box: [ ]
Check the following box if a fee is being paid with this statement:
[X]
1. ____________________________________________________________
Name of Reporting Person
S.S. or I.R.S. Identification No. of Above Person
Wavhovia Bank of North Carolina, N.A., as Trustee for the
Browning-Ferris Industries, Inc. Stock and Employee Benefit
Trust
____________________________________________________________
2. Check the Appropriate Box if a Member of a Group
(a) [ ]
(b) [ ]
____________________________________________________________
3. SEC Use Only
____________________________________________________________
4. Source of Funds
SC, OO
____________________________________________________________
5. Check Box if Disclosure of Legal Proceedings is Required
pursuant to Item 2(d) or 2(e) [ ]
____________________________________________________________
6. Citizenship or Place of Organization
Delaware
____________________________________________________________
Number of 7. Sole Voting Power
Shares 0
Beneficially 8. Shared Voting Power
Owned by 15,000,000
Each Reporting 9. Sole Dispositive Power
Person With 0
10. Shared Dispositive Power
15,000,000
____________________________________________________________
11. Aggregate Amount Beneficially Owned by Each Reporting Person
15,000,000
____________________________________________________________
12. Check if the Aggregate Amount is Row (11) Excludes Certain
Shares [ ]
____________________________________________________________
13. Percent of Class Represented by Amount in Row (11)
7.6%
____________________________________________________________
14. Type of Reporting Person
BK, EP
____________________________________________________________
The filing of this statement on Schedule 13D by the Browning-Ferris
Industries, Inc. Stock and Employee Benefit Trust (the "Trust")
does not constitute, and should not be construed as, an admission
that either the Trust or Wachovia Bank of North Carolina, N.A., a
trustee of the Trust (the "Trustee"), beneficially owns any
securities covered by this statement or is required to file this
statement. In this connection, the Trust and the Trustee disclaim
beneficial ownership of the securities covered by this statement.
Item. 1. Security and Issuer.
The class of equity securities to which this statement relates is
the Common Stock, $16 2/3 par value per share (the "Common Stock"),
of Browning-Ferris Industries, Inc., a Delaware corporation (the
"Issuer"). The principal executive offices of the Issuer are
located at 757 N. Eldridge, Houston, Texas 77079.
Item 2. Identity and Background.
This statement is being filed by the Trust. The Trust's address is
c/o Wachovia Bank of North Carolina, N.A., 301 North Main Street,
Winston-Salem, North Carolina 27102. The Trustee's address is 301
North Main Street, Winston-Salem, North Carolina 27102. The Trust
is a trust organized under the laws of the State of Delaware. The
Trustee is a national banking association organized under the laws
of the United States.
During the past five years, neither the Trust nor the Trustee has
been (i) convicted in a criminal proceeding (excluding traffic
violations or similar misdemeanors) or (ii) a party to a civil
proceeding of a judicial or administrative body of competent
jurisdiction and as a result of such proceeding was or is subject
to a judgment, decree or final order enjoining future violations
of, or prohibiting or mandating activities subject to, Federal or
State securities laws or finding any violation with respect to such
laws.
Item 3. Source and Amount of Funds or Other Consideration.
On February 28, 1995, the Issuer and the Trustee, as trustee for
the Trust, entered into a trust agreement creating the Trust (the
"Trust Agreement"). On the same date, the Issuer and the Trustee,
as trustee for the Trust, entered into a common stock purchase
agreement (the "Purchase Agreement") pursuant to which the Issuer
sold 15,000,000 shares of Common Stock to the Trust in exchange for
a promissory note in the amount of $456,874,500.00 (the "Note").
The Note bears interest at the rate of 8.5% per annum. Interest on
the unpaid principal balance of Note is payable annually and
principal on the Note is due and payable on September 30, 2000.
The Issuer may from time to time contribute cash to the Trust
which, together with earnings of the Trust (primarily dividends on
the Common Stock) will be applied to make principal and interest
payments on the Note. If the Issuer fails to make sufficient
contributions, then a corresponding amount of the principal of and
interest on the Note will be forgiven.
Item 4. Purpose of Transaction.
The Issuer has advised the Trustee that the Trust was created for
the purpose of pre-funding a portion of the Issuer's future
obligations under employee benefit plans (the "Plans"), including
cash and stock incentive plans and savings plans, and for other
transactions through which the Issuer might otherwise issue Common
Stock (the "Corporate Purposes"), including a public or private
offering, conversion of debt or preferred stock that is convertible
into Common Stock and acquisitions funded with Common Stock.
The Issuer has also advised the Trustee that the creation of the
Trust and the purchase of shares of Common Stock by the Trust would
not have antitakeover effects. Pursuant to the terms of the Trust
Agreement, the Trustee is required to vote the shares of Common
Stock held by the Trust in accordance with the directions of the
Board of Directors of the Issuer. Accordingly, pursuant to Section
160 of the Delaware General Corporation Law, the shares of Common
Stock held by the Trust may not be voted or counted for quorum
purposes. Additionally, the Trust Agreement provides that if a
tender or exchange offer is commenced for Common Stock, the shares
of Common Stock held by the Trust will be transferred to the Issuer
in full payment of the remaining balance of the Note.
Item 5. Interest in Securities of the Issuer.
The Trust holds 15,000,000 shares of Common Stock, as to which it
may be deemed to have shared voting and dispositive power. Shares
of Common Stock acquired pursuant to the Purchase Agreement are
held in the Trust and will be released as the Trust repays the Note
to the Issuer. Released shares will be allocated either (i) to the
accounts of participants in certain of the Issuer's Plans or (ii)
to satisfy Common Stock requirements for the Corporate Purposes, in
each case, in the manner set forth in the Trust Agreement. If the
Issuer has previously satisfied current requirements of such Plans
or Corporate Purposes, released shares of equivalent value may be
delivered to the Issuer. As of the date hereof, no shares of
Common Stock have been released from the Trust pursuant to the
terms of the Trust Agreement. The Issuer has advised the Trustee
that the Issuer's contributions to the Plans will be decreased by
the value of the shares allocated to the Plans from the Trust.
The Trustee has no discretion in the manner in which the Common
Stock will be voted. The Trust Agreement provides that the Board
of Directors of the Issuer will determine the manner in which
shares of Common Stock held in the Trust are voted. Therefore, in
accordance with Section 160 of the Delaware General Corporation
Law, the shares of Common Stock held by the Trust may not be voted
or counted for quorum purposes. The Trust Agreement also provides
that if a tender or exchange offer is commenced for Common Stock,
then the shares of Common Stock held by the Trust will be
transferred to the Issuer in full payment of the remaining balance
of the Note.
The filing of this statement on Schedule D by the Trust does not
constitute, and should not be construed as, an admission that
either the Trust or the Trustee beneficially owns any securities
covered by this statement or is required to file this statement.
In this connection, the Trust and the Trustee disclaim beneficial
ownership of the securities covered by this statement.
Item 6. Contracts, Arrangements, Understandings or
Relationships with Respect to Securities
of the Issuer
The Issuer and the Trustee, as trustee for the Trust, have entered
into the Trust Agreement and the Purchase Agreement, and the
Trustee, as trustee for the Trust, has issued the Note to the
Issuer. The Trust Agreement, the Purchase Agreement and the Note
are described in Items 3 and 5 of this statement.
Item 7. Material to be Filed as Exhibits.
(a) Browning-Ferris Industries, Inc. Stock and Employee Benefit
Trust Agreement, dated as of February 28, 1995, between
Browning-Ferris Industries, Inc. and Wachovia Bank of North
Carolina, N.A., as trustee for the Browning-Ferris Industries,
Inc. Stock and Employee Benefit Trust.
(b) Common Stock Purchase Agreement, dated as of February 28,
1995, between Browning-Ferris Industries, Inc. and Wachovia
Bank of North Carolina, N.A., as trustee for the Browning-
Ferris Industries, Inc. Stock and Employee Benefit Trust.
(c) Promissory Note, dated February 28, 1995, issued to Browning-
Ferris Industries, Inc. by Wachovia Bank of North Carolina,
N.A., as trustee for the Browning-Ferris Industries, Inc.
Stock and Employee Benefit Trust.
SIGNATURE
After reasonable inquiry and to the best of my knowledge and
belief, I certify that the information set forth in this statement
is true, complete and correct.
Dated: March 7, 1995
WACHOVIA BANK
OF NORTH CAROLINA, N.A.,
Trustee
/s/ Alan C. Frazier
-----------------------------
Name: Alan C. Frazier
Title: Vice President
BROWNING-FERRIS INDUSTRIES, INC.
STOCK AND EMPLOYEE BENEFIT TRUST AGREEMENT
Effective as of February 28, 1995
TABLE OF CONTENTS
PAGE
ARTICLE 1
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .-1-
Trust, Trustee and Trust Fund. . . . . . . . . . . . . . . . .-1-
1.1 Trust. . . . . . . . . . . . . . . . . . . . . . . .-1-
1.2 Trustee. . . . . . . . . . . . . . . . . . . . . . .-2-
1.3 Trust Fund . . . . . . . . . . . . . . . . . . . . .-2-
1.4 Trust Fund Subject to Claims . . . . . . . . . . . .-2-
1.5 Definitions. . . . . . . . . . . . . . . . . . . . .-3-
ARTICLE 2
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .-4-
Contributions and Dividends. . . . . . . . . . . . . . . . . .-4-
2.1 Contributions. . . . . . . . . . . . . . . . . . . .-4-
2.2 Prepayments. . . . . . . . . . . . . . . . . . . . .-4-
2.3 Dividends. . . . . . . . . . . . . . . . . . . . . .-5-
ARTICLE 3
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .-5-
Release of Company Stock and Allocations . . . . . . . . . . .-5-
3.1 Company Stock Made Available for Transfer from
Trust. . . . . . . . . . . . . . . . . . . . . . . .-5-
3.2 Transfer from Trust of Released Shares . . . . . . .-6-
3.3 Transfer of Other Assets . . . . . . . . . . . . . .-7-
ARTICLE 4
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .-7-
Compensation, Expenses and Tax Withholding . . . . . . . . . .-7-
4.1 Compensation and Expenses. . . . . . . . . . . . . .-7-
4.2 Withholding of Taxes . . . . . . . . . . . . . . . .-7-
ARTICLE 5
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .-7-
Administration of Trust Fund . . . . . . . . . . . . . . . . .-7-
5.1 Management and Control of Trust Fund . . . . . . . .-7-
5.2 Investment of Funds. . . . . . . . . . . . . . . . .-7-
5.3 Trustee's Administrative Powers. . . . . . . . . . .-8-
5.4 Rights Regarding Common Stock. . . . . . . . . . . .-9-
5.5 Indemnification. . . . . . . . . . . . . . . . . . .-9-
5.6 General Duty to Communicate to Committee . . . . . -10-
<PAGE>
ARTICLE 6
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -10-
Accounts and Reports of Trustee. . . . . . . . . . . . . . . -10-
6.1 Records and Accounts of Trustee. . . . . . . . . . -10-
6.2 Fiscal Year. . . . . . . . . . . . . . . . . . . . -10-
6.3 Reports of Trustee . . . . . . . . . . . . . . . . -11-
6.4 Final Report . . . . . . . . . . . . . . . . . . . -11-
ARTICLE 7
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -11-
Succession of Trustee. . . . . . . . . . . . . . . . . . . . -11-
7.1 Resignation of Trustee . . . . . . . . . . . . . . -11-
7.2 Removal of Trustee . . . . . . . . . . . . . . . . -11-
7.3 Appointment of Successor Trustee . . . . . . . . . -11-
7.4 Succession to Trust Fund Assets. . . . . . . . . . -12-
7.5 Continuation of Trust. . . . . . . . . . . . . . . -12-
7.6 Changes in Organization of Trustee . . . . . . . . -12-
7.7 Continuance of Trustee's Powers in Event of
Termination of the Trust . . . . . . . . . . . . . -12-
ARTICLE 8
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -12-
Amendment or Termination . . . . . . . . . . . . . . . . . . -12-
8.1 Amendments . . . . . . . . . . . . . . . . . . . . -12-
8.2 Termination. . . . . . . . . . . . . . . . . . . . -13-
8.3 Effect of Termination. . . . . . . . . . . . . . . -13-
8.4 Merger . . . . . . . . . . . . . . . . . . . . . . -13-
8.5 Form of Amendment or Termination . . . . . . . . . -13-
ARTICLE 9
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -14-
Miscellaneous. . . . . . . . . . . . . . . . . . . . . . . . -14-
9.1 Controlling Law. . . . . . . . . . . . . . . . . . -14-
9.2 Committee Action . . . . . . . . . . . . . . . . . -14-
9.3 Notices. . . . . . . . . . . . . . . . . . . . . . -14-
9.4 Severability . . . . . . . . . . . . . . . . . . . -14-
9.5 Protection of Persons Dealing with the Trust . . . -15-
9.6 Tax Status of Trust. . . . . . . . . . . . . . . . -15-
9.7 Participants to Have No Interest in the Company by
Reason of the Trust. . . . . . . . . . . . . . . . -15-
9.8 Nonassignability . . . . . . . . . . . . . . . . . -15-
9.9 Gender and Plurals . . . . . . . . . . . . . . . . -15-
9.10 Counterparts . . . . . . . . . . . . . . . . . . . -15-
<PAGE>
ARTICLE 1
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .-1-
Trust, Trustee and Trust Fund. . . . . . . . . . . . . . . . .-1-
1.1 Trust. . . . . . . . . . . . . . . . . . . . . . . .-1-
1.2 Trustee. . . . . . . . . . . . . . . . . . . . . . .-2-
1.3 Trust Fund . . . . . . . . . . . . . . . . . . . . .-2-
1.4 Trust Fund Subject to Claims . . . . . . . . . . . .-2-
1.5 Definitions. . . . . . . . . . . . . . . . . . . . .-3-
ARTICLE 2
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .-4-
Contributions and Dividends. . . . . . . . . . . . . . . . . .-4-
2.1 Contributions. . . . . . . . . . . . . . . . . . . .-4-
2.3 Dividends. . . . . . . . . . . . . . . . . . . . . .-5-
ARTICLE 3
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .-6-
Release of Company Stock and Allocations . . . . . . . . . . .-6-
3.1 Company Stock Made Available for Transfer from
Trust. . . . . . . . . . . . . . . . . . . . . . . .-6-
3.2 Transfer from Trust of Released Shares . . . . . . .-6-
3.3 Transfer of Other Assets . . . . . . . . . . . . . .-7-
ARTICLE 4
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .-7-
Compensation, Expenses and Tax Withholding . . . . . . . . . .-7-
4.1 Compensation and Expenses. . . . . . . . . . . . . .-7-
4.2 Withholding of Taxes . . . . . . . . . . . . . . . .-7-
ARTICLE 5
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .-8-
Administration of Trust Fund . . . . . . . . . . . . . . . . .-8-
5.1 Management and Control of Trust Fund . . . . . . . .-8-
5.2 Investment of Funds. . . . . . . . . . . . . . . . .-8-
5.3 Trustee's Administrative Powers. . . . . . . . . . .-8-
5.4 Rights Regarding Common Stock. . . . . . . . . . . .-9-
5.5 Indemnification. . . . . . . . . . . . . . . . . . -10-
5.6 General Duty to Communicate to Committee . . . . . -10-
ARTICLE 6
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -11-
Accounts and Reports of Trustee. . . . . . . . . . . . . . . -11-
6.1 Records and Accounts of Trustee. . . . . . . . . . -11-
6.2 Fiscal Year. . . . . . . . . . . . . . . . . . . . -11-
6.3 Reports of Trustee . . . . . . . . . . . . . . . . -11-
6.4 Final Report . . . . . . . . . . . . . . . . . . . -11-
ARTICLE 7
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -11-
Succession of Trustee. . . . . . . . . . . . . . . . . . . . -11-
7.1 Resignation of Trustee . . . . . . . . . . . . . . -11-
7.2 Removal of Trustee . . . . . . . . . . . . . . . . -12-
7.3 Appointment of Successor Trustee . . . . . . . . . -12-
7.4 Succession to Trust Fund Assets. . . . . . . . . . -12-
7.5 Continuation of Trust. . . . . . . . . . . . . . . -12-
7.6 Changes in Organization of Trustee . . . . . . . . -12-
7.7 Continuance of Trustee's Powers in Event of
Termination of the Trust . . . . . . . . . . . . . -12-
ARTICLE 8
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -13-
Amendment or Termination . . . . . . . . . . . . . . . . . . -13-
8.1 Amendments . . . . . . . . . . . . . . . . . . . . -13-
8.2 Termination. . . . . . . . . . . . . . . . . . . . -13-
8.3 Effect of Termination. . . . . . . . . . . . . . . -13-
8.4 Merger . . . . . . . . . . . . . . . . . . . . . . -14-
8.5 Form of Amendment or Termination . . . . . . . . . -14-
ARTICLE 9
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -14-
Miscellaneous. . . . . . . . . . . . . . . . . . . . . . . . -14-
9.1 Controlling Law. . . . . . . . . . . . . . . . . . -14-
9.2 Committee Action . . . . . . . . . . . . . . . . . -14-
9.3 Notices. . . . . . . . . . . . . . . . . . . . . . -14-
9.4 Severability . . . . . . . . . . . . . . . . . . . -15-
9.5 Protection of Persons Dealing with the Trust . . . -15-
9.6 Tax Status of Trust. . . . . . . . . . . . . . . . -15-
9.7 Participants to Have No Interest in the Company by
Reason of the Trust. . . . . . . . . . . . . . . . -15-
9.8 Nonassignability . . . . . . . . . . . . . . . . . -15-
9.9 Gender and Plurals . . . . . . . . . . . . . . . . -15-
9.10 Counterparts . . . . . . . . . . . . . . . . . . . -16-
BROWNING-FERRIS INDUSTRIES, INC.
STOCK AND EMPLOYEE BENEFIT TRUST AGREEMENT
THIS STOCK AND TRUST AGREEMENT (this "Agreement"), is
made effective as of February 28, 1995, between Browning-Ferris
Industries, Inc., a Delaware corporation, and Wachovia Bank of
North Carolina, N.A., as trustee.
W I T N E S S E T H
WHEREAS, the Company (as herein defined) desires to
establish a trust (the "Trust") in accordance with the laws of the
State of Delaware and for the purposes stated in this Agreement;
WHEREAS, the Trustee (as herein defined) desires to act
as trustee of the Trust, and to hold legal title to the assets of
the Trust, in trust, for the purposes hereinafter stated and in
accordance with the terms hereof;
WHEREAS, the Company or its subsidiaries have previously
adopted the Plans (as herein defined);
WHEREAS, the Company desires to provide assurance of the
availability of the shares of its common stock necessary to satisfy
certain of its obligations or those of its subsidiaries under the
Plans and for the Corporate Purposes (as herein defined);
WHEREAS, the Company desires that the assets to be held
in the Trust Fund (as herein defined) should be principally or
exclusively securities of the Company and, therefore expressly
waives any diversification of investments that might otherwise be
necessary, appropriate or required pursuant to applicable
provisions of law; and
WHEREAS, the Trustee has been appointed as trustee and
has accepted such appointment as of the date first set forth above;
NOW, THEREFORE, the parties hereto hereby establish the
Trust and agree that the Trust will be comprised, held and disposed
of as follows:
ARTICLE 1
Trust, Trustee and Trust Fund
1.1 Trust. This Agreement and the Trust shall be
known as the Browning-Ferris Industries, Inc. Stock and Employee
Benefit Trust. The parties intend that the Trust will be an
independent legal entity with title to and power to convey all of
its assets. The parties hereto further intend that the Trust not
be subject to the Employee Retirement Income Security Act of 1974,
as amended. The Trust is not a part of any of the Plans and does
not provide retirement or other benefits to any Plan Participant
(as herein defined). The assets of the Trust will be held,
invested and disposed of by the Trustee, in accordance with the
terms of the Trust. The Trust shall be irrevocable.
1.2 Trustee. The trustee named above, and its
successor or successors, is hereby designated as the trustee
hereunder, to receive, hold, invest, administer and distribute the
Trust Fund in accordance with this Agreement, the provisions of
which shall govern the powers, duties and responsibilities of the
Trustee.
1.3 Trust Fund. The assets held at any time and
from time to time under the Trust collectively are herein referred
to as the "Trust Fund" and shall consist of contributions received
by the Trustee, proceeds of any loans, investments and reinvestment
thereof, the earnings and income thereon, less disbursements
therefrom. Except as herein otherwise provided, title to the
assets of the Trust Fund shall at all times be vested in the
Trustee and securities that are part of the Trust Fund shall be
held in such manner that the Trustee's name and the fiduciary
capacity in w hich the securities are held are fully disclosed,
subject to the right of the Trustee to hold title in bearer form or
in the name of a nominee, and the interests of others in the Trust
Fund shall be only the right to have such assets received, held,
invested, adm inistered and distributed in accordance with the
provisions of the Trust.
1.4 Trust Fund Subject to Claims. Notwithstanding
any provision of this Agreement to the contrary, the Trust Fund
shall at all times remain subject to the claims of the Company's
general creditors under federal and state law.
In addition, the Board of Directors and Chief Executive
Officer of the Company shall have the duty to inform the Trustee in
writing of the Company's Insolvency (as herein defined). If a
person claiming to be a creditor of the Company alleges in writing
to the Trustee that the Company has become Insolvent, the Trustee
shall determine whether the Company is Insolvent and, pending such
determination, the Trustee shall discontinue allocations pursuant
to Article 3.
Unless the Trustee has actual knowledge of the Company's
Insolvency, or has received notice from the Company or a person
claiming to be a creditor alleging that the Company is Insolvent,
the Trustee shall have no duty to inquire whether the Company is
Insolvent. The Trustee may in all events rely on such evidence
concerning the Company's solvency as may be furnished to the
Trustee and that provides the Trustee with a reasonable basis for
making a determination concerning the Company's Insolvency.
If at any time the Trustee has determined that the
Company is Insolvent, the Trustee shall discontinue allocations
pursuant to Article 3 and shall hold the Trust Fund for the benefit
of the Company's general creditors. Nothing in this Agreement
shall in any way diminish any rights of employees as general
creditors of the Company with respect to benefits due under the
Plan(s) or otherwise.
The Trustee shall resume allocations pursuant to
Article 3 only after the Trustee has determined that the Company is
not Insolvent (or is no longer Insolvent).
1.5 Definitions. In addition to the terms defined
in the preceding portions of this Agreement, certain capitalized
terms have the meanings set forth below:
Board of Directors. "Board of Directors" means the
board of directors of the Company.
Code. "Code" means the Internal Revenue Code of 1986,
as amended.
Committee. "Committee" means the person holding the
title of Secretary or Assistant Secretary of the Company, or such
other person who is charged by the Board of Directors with
administration of the Trust.
Company. "Company" means Browning-Ferris Industries,
Inc., a Delaware corporation, or any successor thereto. Reference
to the Company shall include its subsidiaries where appropriate.
Company Stock. "Company Stock" means shares of common
stock, par value $.16 per share, issued by the Company, or any
successor securities thereto.
Corporate Purposes. "Corporate Purposes" means the
variety of transactions through which the Company might otherwise
issue Company Stock, including a public or private offering of
Company Stock, conversion of debt or preferred stock issued by the
Company and convertible into Company Stock, exercise of stock
optons or warrants to purchase Company Stock, and acquisitions
funded or paid for through the issuance of Company Stock.
Extraordinary Dividend. "Extraordinary Dividend" means
any dividend or other distribution of cash or other property (other
than Company Stock) made with respect to Company Stock, which the
Board of Directors declares generally to be other than an ordinary
dividend.
Fair Market Value. "Fair Market Value" means as of any
date the average of the highest and lowest reported sales prices
regular way on such date (or if such date is not a trading day,
then on the most recent prior date which is a trading day) of a
share of Company Stock as reported on the composite tape, or
similar reporting system, for issues listed on the New York Stock
Exchange (or, if the Company Stock is no longer traded on the New
York Stock Exchange, on such other national securities exchange on
which the Company Stock is listed or national securities or central
market system upon which transactions in Company Stock are
reported, as either shall be designated by the Committee for the
purposes hereof) or if sales of Company Stock are not reported in
any manner specified above, the average of the high bid and low
asked quotations on such date (or if such date is not a trading
day, then on the most recent prior date which is a trading day) in
the over-the-counter market as reported by the National Association
of Securities Dealers' Automated Quotation System or, if not so
reported, by National Quotation Bureau, Incorporated or similar
organization selected by the Committee.
Insolvency or Insolvent. "Insolvency" or being
"Insolvent" means (i) the inability of the Company to pay its debts
as they become due, or (ii) the Company being subject to a pending
proceeding as a debtor under the provisions of Title 11 of the
United States Code (Bankruptcy Code).
Loan. "Loan" means the loan and extension of credit to
the Trust evidenced by the promissory note made by the Trustee of
even date herewith with which the Trustee purchased Company Stock.
Plan Participant. "Plan Participant" means a
participant in any of the Plans.
Plans. "Plans" means the plans, contracts and
compensation structures listed on Schedule A hereto.
Trustee. "Trustee" means Wachovia Bank of North
Carolina, N.A. (not in its corporate capacity but as trustee of the
Trust), or any successor trustee.
Trust Year. "Trust Year" means the period beginning on
the date hereof and ending on September 30, 1995, and each 12 month
period beginning on October 1 and ending on September 30 thereafter.
ARTICLE 2
Contributions and Dividends
2.1 Contributions. On the date of execution of
this Agreement, the Company shall contribute to the Trust in cash
the sum of $2,500,500, which represents the aggregate par value of
the 15,000,00 0 shares of Company Stock purchased by the Trust
pursuant to that certain Common Stock Purchase Agreement, dated of
even date her ewith, between the Company and the Trustee. In
addition, for each Trust Year, the Company shall contribute to the
Trust in cash such amount, which together with dividends, as
provided in Section 2.3, and any other earnings of the Trust, shall
enable the Trustee to make all payments of principal and interest
due under the Loan on a timely basis. Unless otherwise expressly
provided herein, the Trustee shall apply all such contributions,
dividends and earnings to the payment or prepayment of principal
and interest due under the Loan. If, at the end of any Trust Year,
such contributions, dividends and earnings shall be insufficient to
enable the Trustee to make all payments of principal and interest
due under the Loan, then the Company shall be deemed to have
forgiven principal and interest on the Loan to the extent such
contributions, dividends and earnings are less than the principal
and interest then due. All contributions made under the Trust
shall be delivered to the Trustee. The Trustee shall be
accountable for all contributions received by it, but shall have no
duty to require any contributions to be made to it.
2.2 Prepayments. The Company may, from time to
time, contribute cash to the Trust in amounts sufficient to enable
the Trust to prepay, in whole or in part, principal (and interest
accrued thereon to the date of prepayment) of the Loan at any time
or, in lieu of such prepayment, the Committee may, from time to
time, direct that all or any part of such principal (and interest
accrued there on) shall be forgiven and the payment so directed
shall be forgiven.
2.3 Dividends. Except as otherwise provided
herein, dividends paid in any Trust Year in cash on Company Stock
held by the Trust (including dividends paid on Released Shares, as
defined below, that have not been transferred out of the Trust at
the time of such dividend payment) shall be applied, immediately
upon receipt thereof by the Trustee, (i) first to interest accrued
and unpaid as of the date of any such payment and then, to the
extent that a ny such payment exceeds such accrued and unpaid
interest, (ii) to prepay interest that accrues after such payment
through the end of such Trust Year, and then, (iii) to pay
principal installments due within such Trust Year, and then, (iv)
to the extent not otherwise distributed in accordance with the next
sentence, to additional installments of principal in the order of
their scheduled maturity. In the event that dividends paid on
Company Stock held in the Trust, other than Extraordinary
Dividends, exceed the amount of scheduled principal and interest
due in any Trust Year, such excess shall, as determined in good
faith by the Committee, be (i) applied to prepay, in whole or in
part, principal (and accrued interest thereon to the date of such
prepayment) of the Loan or (ii) distributed to the Plans and/or to
any other broad cross section of individuals employed by the
Company. Extraordinary Dividends shall not be used to pay interest
on or principal of the Loan, but shall be invested in additional
Company Stock as soon as practicable, except as provided below.
Dividends which are not in cash or in Company Stock (including
Extraordinary Dividends, or portions thereof) shall be reduced to
cash by the Trustee and reinvested in Company Stock as soon as
practicable, except as provided below. For purposes of this
Agreement, Company Stock purchased with the proceeds of an
Extraordinary Dividend or with the proceeds of a non-cash dividend
shall, for purposes of this Agreement (including, without
limitation, Section 3.1 hereof), be deemed to have been acquired
with the proceeds of the Loan. In the Trustee's discretion,
investments in Company Stock may be made through open-market
purchases, private transactions or (with the Company's consent)
purchases from the Company. The Committee may direct the Trustee
as to the timing and manner of such purchases in order to comply
with applicable law and to avoid, if possible, adverse effects on
the publicly traded market price of Company Stock.
ARTICLE 3
Release of Company Stock and Allocations
3.1 Company Stock Made Available for Transfer from
Trust. Immediately after each payment, prepayment or forgiveness,
if any, of principal (and accrued interest thereon) of the Loan is
made, a number of shares of Company Stock shall be made available
for transfer from the Trust ("Released Shares") in the manner set
forth in Section 3.2. The number of such Released Shares shall
equal the number of shares of Company Stock held in the Trust
immediately prior to such payment, prepayment or forgiveness that
have not already been deemed Released Shares pursuant to a previous
payment, prepayment or forgiveness of principal of the Loan,
multiplied by a fraction, the numerator of which shall be the
amount of principal paid or prepaid or deemed forgiven upon such
payment or prepayment date or date of forgiveness and the
denominator of which shall be the sum of the numerator plus the
principal amount of the Loan remaining after such payment,
prepayment or forgiveness. No fractional shares shall be released.
If the preceding computation results in fractional shares, the
number of Released Shares shall be computed by rounding down to the
next whole number. The number of Released Shares, determined as
aforesaid, shall be certified to the Trustee by the Committee.
3.2 Transfer from Trust of Released Shares.
Released Shares shall be transferred by the Trustee, if and as
directed by the Committee, either (i) to satisfy stock requirements
for the Corporate Purposes or (ii) to the Plans, in each case, as
shall be required to provide Released Shares for such Corporate
Purposes or to such Plans in accordance with the current
requirements of such Corporate Purposes or such Plans, as the case
may be, for Released Shares. If the Company has previously
satisfied current requirements of such Corporate Purposes or such
Plans either through the delivery or contribution of cash, Company
Stock or otherwise, Released Shares of equivalent value may be
delivered to the Company. If after taking into account delivery or
contributions from the Company and shares delivered for such
Corporate Purposes or to such Plans by the Trust, such Corporate
Purposes or such Plans require more shares of Company Stock, then
such Released Shares shall be allocated among such Corporate
Purposes or such Plans as directed by the Committee. To the extent
that Released Shares remain after the allocation referred to in the
prior provisions of this Section 3.2, the remaining Released Shares
shall, at the direction of and in the allocations specified by the
Committee, be (i) transferred to the Plans to the extent of the
Company's current cash funding obligations of such Plans or (ii)
sold by the Trustee and the proceeds of such sale transferred to
the Plans or used to fund such Corporate Purposes. The Trustee may
sell Released Shares to the extent required to fund benefits under
the Plans and transfer the proceeds of such sale to the Plans if
and to the extent that the transfer of Released Shares to the Plans
is prohibited under applicable law. To facilitate such sales
pursuant to this Section 3.2, the Company shall register under the
Securities Act of 1933, as amended (the "1933 Act"), such number of
Released Shares as the Committee may direct. If Released Shares
remain in the Trust after the transfers or sales described above,
such remaining Released Shares may, as the Committee shall direct,
(i) be transferred to, or used by the Trustee for the benefit of,
the Plans or such other employee benefit plans (or their
participants and beneficiaries) covering a broad cross section of
non-collectively bargained employees of the Company or its
subsidiaries as the Committee shall direct, or (ii) be retained in
the Trust for a sufficient period of time after the release of such
shares so that such Released Shares may be sold by the Trustee in
accordance with Rule 144 under the 1933 Act at such times as the
Committee may direct. In no event, however, may Released Shares
remain in the Trust longer than four years after such shares become
Released Shares. The Committee may direct the Trustee as to the
timing and manner of sales pursuant to this Section 3.2 of Released
Shares in order to comply with applicable law and to avoid, if
possible, adverse effects on the publicly traded market price of
Company Stock. Released Shares transferred to Plans with respect
to which trusts have been established shall be transferred to the
trustee thereof; if there is no such trust with respect to a Plan,
the shares transferred to such Plan shall be transferred to the
plan administrator of such Plan. Released Shares transferred to
satisfy Corporate Purposes shall be transferred as directed by the
Committee.
3.3 Transfer of Other Assets. Any assets other
than Company Stock held in the Trust pursuant to Section 2.1 shall
be transferred by the Trustee in such amounts and at such times to
or for the benefit of such Plans (or their participants and
beneficiaries) at the same time and in the same proportion as
Released Shares are allocated to such Plans.
ARTICLE 4
Compensation, Expenses and Tax Withholding
4.1 Compensation and Expenses. The Trustee shall
be entitled to such reasonable compensation for its services as may
be agreed upon from time to time by the Company and the Trustee and
to be reimbursed for its reasonable legal, accounting and appraisal
fees, expenses and other charges reasonably incurred in connection
with the administration, management, investment and distribution of
the Trust Fund. Such compensation shall be paid, and such
reimbursement shall be made, out of the Trust Fund. The Company
agrees to make sufficient contributions to the Trust to pay such
amounts owing the Trustee in addition to those contributions
required by Section 2.1. In the event the Company fails to make
the contributions necessary to pay amounts owing to the Trustee,
the Trustee shall be entitled to seek payment directly from the
Company, but the Trustee shall not be entitled to use contributions
required by Section 2.1 in satisfaction of amounts owing to the
Trustee.
4.2 Withholding of Taxes. While it is anticipated
that the Company will make provision for complying with all
applicable wi thholding requirements, the Trustee may withhold,
require withholding, or otherwise satisfy its withholding
obligation, on any distribution which it is directed to make, such
amount as it may reasonably estimate to be necessary to comply with
applicable federal, state and local withholding requirements. Upon
settlement of such tax liability, the Trustee shall distribute the
balance of such amount, if any. Prior to making any distribution
hereunder, the Trustee may require such release or documents from
any taxing authority, or may require such indemnity, as the Trustee
shall reasonably deem necessary for its protection.
ARTICLE 5
Administration of Trust Fund
5.1 Management and Control of Trust Fund. Subject
to the terms of this Agreement, the Trustee shall have exclusive
authority, discretion and responsibility to manage and control the
assets of the Trust Fund.
5.2 Investment of Funds. Except as otherwise
provided in Section 2.3 and in this Section 5.2, the Trustee shall
invest and reinvest the Trust Fund exclusively in Company Stock,
including any accretions thereto resulting from the proceeds of a
tender offer, recapitalization or similar transaction which, if not
in Company Stock, shall be reduced to cash as soon as practicable.
The Trustee may invest any portion of the Trust Fund temporarily
pending investment in Company Stock, distribution or payment of
expenses in (i) investments in United States Government obligations
with maturities of less than one year, (ii) interest-bearing
accounts including but not limited to certificates of deposit, time
deposits, saving accounts and money market accounts with maturities
of less than one year in any bank, including the Trustee's, with
aggregate capital in excess of $1,000,000,000 and a Moody's
Investors Service rating of at least P1, or an equivalent rating
from a nationally recognized ratings agency, which accounts are
insured by the Federal Deposit Insurance Corporation or other
similar federal agency, (iii) obligations issued or guaranteed by
any agency or instrumentality of the United States of America with
maturities of less than one year or (iv) short-term discount
obligations of the Federal National Mortgage Association, provided
that none of such investments, accounts or obligations shall be
what are commonly referred to as "derivative" investments, accounts
or obligations.
5.3 Trustee's Administrative Powers. Except as
otherwise provided herein, and subject to the Trustee's duties
hereunder, the Trustee shall have the following powers and rights,
in addition to those provided elsewhere in this Agreement or by
law:
(a) to retain any asset of the Trust Fund for the
purposes set forth herein;
(b) subject to Section 2.3, Article 3, Section 5.2,
Section 5.4 and Section 8.3, to sell, transfer, mortgage, pledge,
lease or otherwise dispose of, or grant options with respect to,
any Trust Fund assets at public or private sale;
(c) upon direction from the Company, to borrow from
any lender (including the Company pursuant to the Loan), to acquire
Company Stock as authorized by this Agreement, to enter into loan
agreements up on such terms (including reasonable interest and
security for the loan and rights to renegotiate and prepay such
loan) as may be determined by the Committee; provided, however,
that any collateral given by the Trustee for the Loan shall be
limited to cash and property contributed by the Company to the
Trust and dividends paid on Company Stock held in the Trust Fund
and shall not include Company Stock acquired with the proceeds of
the Loan;
(d) with the consent of the Committee, to settle,
submit to arbitration, compromise, contest, prosecute or abandon
claims and demands in favor of or against the Trust Fund;
(e) to vote or to give any consent with respect to
any securities, including any Company Stock, held by the Trust
either in person or by proxy for any purpose, provided that the
Trustee shall vote, tender or exchange all shares of Company Stock
as provided in Section 5.4;
(f) to exercise any of the powers and rights of an
individual owner with respect to any asset of the Trust Fund and to
perform any and all other acts that in its judgment are necessary
or appropriate for the proper administration of the Trust Fund,
even though such powers, rights and acts are not specifically
enumerated in this Agreement;
(g) to employ such accountants, actuaries,
investment bankers, appraisers, other advisors and agents as may be
reasonably necessary in collecting, managing, administering,
investing, valuing, distributing and protecting the Trust Fund or
the assets thereof or any borrowings of the Trustee made in
accordance with Section 5.3(c); and to pay their reasonable fees
and expenses, which shall be deemed to be expenses of the Trust and
for which the Trustee shall be reimbursed in accordance with
Section 4.1;
(h) to cause any asset of the Trust Fund to be
issued, held or registered in the Trustee's name or in the name of
its nominee, or in such form that title will pass by delivery,
provided that the records of the Trustee shall indicate the true
ownership of such asset;
(i) to utilize another entity as custodian to hold,
but not invest or otherwise manage or control, some or all of the
assets of the Trust Fund; and
(j) to consult with legal counsel (who may also be
counsel for the Trustee or the Company generally) with respect to
any of its duties or obligations hereunder; and to pay the
reasonable fees and expenses of such counsel, which shall be deemed
to be expenses of the Trust and for which the Trustee shall be
reimbursed in accordance with Section 4.1.
Notwithstanding the foregoing, neither the Trust nor the Trustee
shall have any power to, and shall not, engage in any trade or
business.
5.4 Rights Regarding Common Stock.
(a) Voting Rights. Subject to the provisions of
Section 160 of the General Corporation Law of the State of
Delaware, the Trustee shall follow the directions of the Board of
Directors of the Company with respect to the manner of voting of
Company Stock held by the Trust on each matter pending before an
annual or special meeting of stockholders of the Company or any
action by written consent of such stockholders in lieu of a
meeting.
(b) Tender or Exchange Offer. If a tender or
exchange offer is commenced for Company Stock other than by the
Company, the Company Stock held by the Trust shall be transferred
to the Company in full payment of the remaining balance of the
Loan. If the Company commences a tender or exchange offer for
Company Stock, the Trustee will follow the instructions of the
Company as to the tender or exchange of the Company Stock held by
the Trust.
5.5 Indemnification.
(a) To the extent lawfully allowable, the Company
shall and hereby does indemnify and hold harmless the Trustee from
and against any claims, demands, actions, administrative or other
proceedings, causes of action, liability, loss, costs, damage or
expense (including reasonable attorneys' fees), which may be
asserted against it, in any way arising out of or incurred as a
result of its action or failure to act in connection with the
operation and administration of the Trust; provided that such
indemnification shall not apply to the extent that the Trustee has
acted in willful or negligent violation of applicable law or its
duties under this Trust or in bad faith. The Trustee shall be
under no liability to any person for any loss of any kind which may
result (i) by reason of any action taken by it in accordance with
any direction of the Committee or pursuant to Section 5.4, (ii) by
reason of its failure to exercise any power or authority or to take
any action hereunder because of the failure of the Committee to
give directions to the Trustee, as provided for in this Agreement
or (iii) by reason of any act or omission of the Committee with
respect to its duties under this Trust. The Trustee shall be fully
protected in acting upon any instrument, certificate or paper
delivered by the Committee or the trustee or administrator of any
Plan and believed in good faith by the Trustee to be genuine and to
be signed or presented by the proper person or persons, and the
Trustee shall be under no duty to make any investigation or inquiry
as to any statement contained in any such writing, but may accept
the same as conclusive evidence of the truth and accuracy of the
statements therein contained.
(b) The Company may, but shall not be required to,
maintain liability insurance to insure its obligations hereunder.
If any payments made by the Company or the Trust pursuant to this
indemnity are covered by insurance, the Company or the Trust (as
applicable) shall be subrogated to the rights of the indemnified
party against the insurance company.
(c) Without limiting the generality of the
foregoing, the Company may, at the request of the Trustee, advance
to the Trustee reasonable amounts of expenses, including reasonable
attorneys' fees and expenses, which the Trustee has advised have
been incurred in connection with its investigation or defense of
any claim, demand, action, cause of action, administrative or other
proceeding arising out of or in connection with the Trustee's
performance of its duties under this Agreement.
5.6 General Duty to Communicate to Committee. The
Trustee shall promptly notify the Committee of all communications
with or from any government agency or with respect to any legal
proceeding with regard to the Trust and with or from any Plan
Participants concerning their entitlements under the Plans or the
Trust.
ARTICLE 6
Accounts and Reports of Trustee
6.1 Records and Accounts of Trustee. The Trustee
shall maintain accurate and detailed records and accounts of all
transactions of the Trust, which shall be available at all
reasonable times for inspection or audit by any person designated
by the Company and which shall be retained as required by
applicable law.
6.2 Fiscal Year. The fiscal year of the Trust
shall be the twelve month period beginning on October 1 and ending
on September 30.
6.3 Reports of Trustee. Within thirty (30) days
following the close of each fiscal year of the Trust and each
quarter of each fiscal year of the Trust, the Trustee shall prepare
and present to the Committee a report for the period ending on the
last day of such fiscal year and/or quarter of such fiscal year, as
the case may be, listing all securities and other property acquired
or disposed of and all receipts, disbursements and other
transactions effected by the Trust during such period, and further
listing all cash, securities, and other property held by the Trust,
together with the Fair Market Value thereof, as of the end of such
period. In addition to the foregoing, the report shall contain
such information regarding the Trust Fund's assets and transactions
as the Committee in its discretion may reasonably request. The
Trustee shall also prepare and present to the Committee such
reports for other periods as the Committee may reasonably request.
Except as otherwise provided in the next sentence, all tax returns
and other regulatory filings, if any, required by the Trust shall
be prepared by the Trustee and submitted to the Committee for the
Company's review at least thirty (30) days before the due date
(excluding any extension thereof) for filing such tax return or
other regulatory filing. The Company may, upon written notice to
the Trustee, assume the responsibility for preparing any tax return
or other regu latory filing required by the Trust. The Trustee
shall timely file all such tax returns and other regulatory
filings, if any, as shall be directed by the Company and shall
promptly provide copies of such filings to the Committee.
6.4 Final Report. In the event of the resignation
or removal of a Trustee hereunder, the Committee may request and
the Trustee shall with reasonable promptness submit, for the period
ending on the effective date of such resignation or removal, a
report similar in form and purpose to that described in
Section 6.3.
ARTICLE 7
Succession of Trustee
7.1 Resignation of Trustee. The Trustee or any
successor thereto may resign as Trustee hereunder at any time upon
delivering a written notice of such resignation, to take effect 30
days after the delivery thereof to the Committee, unless the
Committee accepts shorter notice; provided, however, that no such
resignation shall be effective until a successor Trustee has
assumed the office of Trustee hereunder.
7.2 Removal of Trustee. The Trustee or any
successor thereto may be removed by the Company by delivering to
the Trustee so removed an instrument executed by the Committee.
Such removal shall take effect at the date specified in such
instrument, which shall not be less than 30 days after delivery of
the instrument, unless the Trustee accepts shorter notice;
provided, however, that no such removal shall be effective until a
successor Trustee has assumed the office of Trustee hereunder.
7.3 Appointment of Successor Trustee. Whenever the
Trustee or any successor thereto shall resign or be removed or a
vacancy in the position shall otherwise occur, the Committee shall
use its best efforts to appoint a successor Trustee as soon as
practicable after receipt by the Committee of a notice described in
Section 7.1, or the delivery to the Trustee of a notice described
in Section 7.2, as the case may be, but in no event more than 60
days after receipt or delivery, as the case may be, of such notice.
A successor Trustee's appointment shall not become effective until
such successor shall accept such appointment by delivering its
acceptance in writing to the Company. If a successor is not
appointed within such 60 day period, the Trustee, at the Company's
expense, may petition a court of competent jurisdiction for
appointment of a successor. In any event only a corporation with
trust powers under applicable law, which is not an affiliate of the
Company, may be a successor trustee hereunder.
7.4 Succession to Trust Fund Assets. The title to
all property held hereunder shall vest in any successor Trustee
acting pursuant to the provisions hereof without the execution or
filing of any further instrument, but a resigning or removed
Trustee shall execute all instruments and do all acts necessary to
vest title in the successor Trustee. Each successor Trustee shall
have, exercise and enjoy all of the powers, both discretionary and
ministerial, herein conferred upon its predecessors. A successor
Trustee shall not be obliged to examine or review the accounts,
records, or acts of, or property delivered by, any previous Trustee
and shall not be responsible for any action or any failure to act
on the part of any previous Trustee.
7.5 Continuation of Trust. In no event shall the
legal disability, resignation or removal of a Trustee terminate the
Trust, but the Committee shall forthwith appoint a successor
Trustee in accordance with Section 7.3 to carry out the terms of
the Trust.
7.6 Changes in Organization of Trustee. In the
event that any corporate Trustee hereunder shall be converted into,
shall merge or consolidate with, or shall sell or transfer
substantially all of its assets and business to, another
corporation, state or federal, the corporation resulting from such
conversion, merger or consolidation, or the corporation to which
such sale or transfer shall be made, shall thereafter become and be
the Trustee under the Trust with the same effect as though
originally so named but only if such corporation is qualified to be
a successor trustee hereunder.
7.7 Continuance of Trustee's Powers in Event of
Termination of the Trust. In the event of the termination of the
Trust, as provided herein, the Trustee shall dispose of the Trust
Fund in accordance with the provisions hereof. Until the final
distribution of the Trust Fund, the Trustee shall continue to have
all powers provided hereunder as necessary or expedient for the
orderly liquidation and distribution of the Trust Fund.
ARTICLE 8
Amendment or Termination
8.1 Amendments. Except as otherwise provided
herein, the Company may amend the Trust at any time and from time
to time in any manner which it deems desirable, provided, however:
(a) no amendment that would adversely affect the
contingent rights of Plan Participants may change:
(i) the allocation formula contained in Section 3.1
or Section 3.2 so as to change the number of Released Shares in any
Trust Year;
(ii) the terms of Sections 2.1, 2.3, 3.2, 5.4, 8.1,
8.2 or 8.3; and
(b) no amendment may change the duties of the
Trustee without the Trustee's consent, which consent shall not
be unreasonably withheld.
Notwithstanding the foregoing, the Company, acting in
good faith taking into account the best interests of a broadly
based population of individuals employed by the Company or broadly
based employee benefit plans in which such persons participate,
shall retain the power under all circumstances to amend the Trust
to add employee benefit plans to, or delete Plans from, Schedule A
and to clarify any ambiguities or similar issues of interpretation
in this Agreement.
8.2 Termination. The Trust shall terminate upon
the earlier of (i) September 30, 2000, or (ii) the date on which
the Trust no longer holds any assets. The Board of Directors may
terminate the Trust at any time prior to the date the Trust
terminates pursuant to the preceding sentence.
8.3 Effect of Termination. Upon termination of the
Trust, the Trustee shall sell sufficient remaining assets of the
Trust so that the proceeds of such sale, together with any other
available cash, can be applied to pay in full the remaining
principal of the Loan and any accrued but unpaid interest thereon.
The Committee may direct the Trustee as to the timing and manner of
such sale in order to comply with applicable law and to avoid, if
possible, adverse effects on the publicly traded market price of
Company Stock. In the event the proceeds of the sale shall be
insufficient to discharge the Loan in its entirety, the Company
shall be deemed to have forgiven all amounts which shall remain due
and owing thereon. Any assets or Company Stock remaining in the
Trust after such payment in full of the Loan shall be distributed
to or for the benefit of any employee benefit plan (including one
or more of the Plans) in which a broad cross section of non-collectively
bargained employees of the Company or its subsidiaries participate, as the
Committee shall, in its sole discretion, determine.
8.4 Merger. If the Company is merged into another
corporation or another corporation is merged into the Company then
(a) the survi ving corporation shall become the grantor of the
Trust, (b) the assets of the Trust shall be subject to the claims
of the creditors of the surviving corporation in accordance with
Article 1, above, and (c) the provisions of this Agreement which
apply to Company Stock (including without limitation the provisions
of Article 3, above) shall apply to the stock of the surviving
corporation held hereunder or transferred to the Trust.
8.5 Form of Amendment or Termination. Any
amendment or termination of the Trust shall be evidenced by an
instrument in writing signed by an authorized officer of the
Company, certifying that said amendment or termination has been
authorized and directed by the Company or the Board of Directors,
as applicable, and, in the case of any amendment, shall be
consented to by signature of an authorized officer of the Trustee,
if required by Section 8.1.
ARTICLE 9
Miscellaneous
9.1 Controlling Law. The laws of the State of
Delaware shall be the controlling law in all matters relating to
the Trust, without regard to conflicts of law.
9.2 Committee Action. Any action required or
permitted to be taken by the Committee may be taken on behalf of
the Committee by any individual so authorized. The Company shall
furnish to the Trustee the name and specimen signature of each
member of the Committee upon whose statement of a decision or
direction the Trustee is authorized to rely. Until notified of a
change in the identity of such person or persons, the Trustee shall
act upon the assumption that there has been no change.
9.3 Notices. All notices, requests, or other
communications required or permitted to be delivered hereunder
shall be in writing, delivered by registered or certified mail,
return receipt requested, telecopier or hand delivery as follows:
To the Company: Browning-Ferris Industries, Inc.
757 N. Eldridge
Houston, Texas 77079
Attention: Treasurer
Telecopier: (713) 584-8622
Assistant Secretary
Telecopier: (713) 584-8652
To the Trustee: Wachovia Bank of North Carolina, N.A.
301 North Main Street
Winston-Salem, North Carolina 27150-3099
Attention: Alan C. Frazier
Telecopier: (910) 770-4059
Any party hereto may from time to time, by written notice given as
aforesaid, designate any other address to which notices, requests
or other communications addressed to it shall be sent.
9.4 Severability. If any provision of the Trust
shall be held illegal, invalid or unenforceable for any reason,
such provision shall not affect the remaining parts hereof, but the
Trust shall b e construed and enforced as if said provision had
never been inserted herein.
9.5 Protection of Persons Dealing with the Trust.
No person dealing with the Trustee shall be required or entitled to
monitor the application of any money paid or property delivered to
the Trustee, or determine whether or not the Trustee is acting
pursuant to authorities granted to it hereunder or to
authorizations or directions herein required.
9.6 Tax Status of Trust. It is intended that the
Company, as grantor hereunder, be treated as the owner of the
entire Trust and the trust assets under Section 671, et seq. of the
Code. Until advised otherwise, the Trustee may presume that the
Trust is so characterized for federal income tax purposes and shall
make all filings of tax returns on that presumption.
9.7 Participants to Have No Interest in the Company
by Reason of the Trust. Neither the creation of the Trust nor
anything contained in the Trust shall be construed as giving any
person, including any individual employed by the Company or any
subsidiary of the Company, any equity or interest in the assets,
business or affairs of the Company.
9.8 Nonassignability. No right or interest of any
person to receive distributions from the Trust shall be assignable
or transferable, in whole or in part, either directly or by
operation of law or otherwise, including, but not by way of
limitation, execution, levy, garnishment, attachment, pledge, or
bankruptcy, but excluding death or mental incompetency, and, to the
fullest extent permitted by applicable law, no right or interest of
any person to receive distributions from the Trust shall be subject
to any obligation or liability of any such person, including claims
for alimony or the support of any spouse or child.
9.9 Gender and Plurals. Whenever the context
requires or permits, the masculine gender shall include the
feminine gender and the singular form shall include the plural form
and shall be interchangeable.
9.10 Counterparts. This Agreement may be executed
in any number of counterparts, each of which shall be considered an
original.
IN WITNESS WHEREOF, the Company and the Trustee have
caused this Agreement to be signed, and their seals affixed hereto,
by their authorized officers all as of the day, month and year
first above written.
BROWNING-FERRIS INDUSTRIES, INC.
By: /s/ Henry L. Hirvela
_________________________________
Name: Henry L. Hirvela
Title: Vice President and Treasurer
WACHOVIA BANK OF NORTH CAROLINA, N.A.
By: /s/ Alan C. Frazier
________________________________
Name: Alan C. Frazier
Title: Vice President
SCHEDULE A
PLANS
BFI Retirement Plan
BFI Employee Stock Ownership and Savings Plan
1983 Stock Option Plan of Browning-Ferris Industries, Inc.
1987 Stock Option Plan of Browning-Ferris Industries, Inc.
1990 Stock Option Plan of Browning-Ferris Industries, Inc.
1993 Stock Incentive Plan
1993 Non-Employee Director Stock Plan
Pension Plan of San Mateo County Scavenger and Affiliated Companies
BFI Medical Plan - Group Insurance Plan for Employees
of Browning-Ferris Industries, Inc.
BFI Dental Plan
BFI Long Term Disability Group Insurance Plan
Group Term Life Insurance and Accidental Death and Dismemberment
Plan for Browning-Ferris Industries, Inc.
EXHIBIT A
PROMISSORY NOTE
$456,874,500.00
Houston, Texas February 28, 1995
FOR VALUE RECEIVED, the undersigned, Wachovia Bank of
North Carolina, N.A., not in its individual or corporate capacity
but solely in its capacity as Trustee of the Browning-Ferris
Industries, Inc. Stock and Employee Benefit Trust (the "Trust")
hereby promises on behalf of the Trust to pay to the order of
Browning-Ferris Industries, Inc., a Delaware corporation (the
"Company"), at the principal offices of the Company in Houston,
Texas or at such other place as the Company shall designate in
writing, the aggregate principal amount of FOUR HUNDRED FIFTY SIX
MILLION EIGHT HUNDRED SEVENTY FOUR THOUSAND FIVE HUNDRED AND NO/100
DOLLARS ($456,874,500.00), as shown on Annex A attached hereto as
such may be amended from time to time, with interest in arrears
thereon, as hereinafter provided.
Principal shall be paid in installments in the amounts
and on the dates set forth on the maturity schedule attached hereto
as Annex A, the last such installment due on September 30, 2000;
provided, however, that this Note may be prepaid in whole or in
part at any time without penalty in accordance with Section 2.2 of
the Trust Agreement creating the Trust (the "Trust Agreement"); and
provided further, in accordance with Section 2.1 or 2.2 of the
Trust Agreement, that all or any portion of the principal of this
Note outstanding at any time, together with any accrued but unpaid
interest on this Note, may be deemed forgiven; and provided further
in the event that the Trust shall have been terminated in
accordance with Section 8.2 of the Trust Agreement and the Trustee
shall have complied with the requirements of Section 8.3 of the
Trust Agreement, then any remaining principal of this Note then
outstanding, together with any accrued but unpaid interest on this
Note, shall be deemed forgiven. Interest on the unpaid principal
balance, at an annual interest rate equal to 8.5%, shall be paid
annually, in arrears, on or before each October 15 for interest
accrued and unpaid as of the previous September 30, such payments
commencing October 15, 1995, and shall be calculated on the basis
of a 360-day year of 30-day months. Payments received within any
Trust Year (as defined in the Trust Agreement) shall be applied
(i) first to interest accrued and unpaid as of the date of any such
payment and then, to the extent that any such payment exceeds such
accrued and unpaid interest, (ii) to prepay interest that accrues
after such payment through the end of such Trust Year, and then,
(iii) to pay principal installments due within such Trust Year, and
then, (iv) to the extent not otherwise distributed in accordance
with Section 2.3 of the Trust Agreement, to additional installments
of principal in the order of their scheduled maturity. Whenever
any payment falls due on a Saturday, Sunday or public holiday, such
payment shall be made on the next succeeding business day. Upon
termination of the Trust, the entire unpaid balance of principal
and interest shall be immediately payable.
This Note shall be construed under the laws of the State
of Delaware.
The undersigned represents and warrants that the
indebtedness represented by this Note was incurred for the purpose
of purchasing shares of Common Stock, par value $.16-2/3 per share,
of the Company.
The Note may not be assigned by the Company, other than
by operation of law, without the prior express written consent of
the undersigned.
The Company shall have no recourse whatsoever to any
assets of the Trustee in its individual or corporate capacity for
repayment. The Trustee is entering into this Note not in its
individual or corporate capacity but solely as Trustee, and no
personal or corporate liability or personal or corporate
responsibilities are assumed by, or shall at any time be asserted
or enforceable against, the Trustee in its individual or corporate
capacity under, or with respect to, this Note.
WACHOVIA BANK OF NORTH CAROLINA, N.A.,
on behalf of
BROWNING-FERRIS INDUSTRIES, INC.
STOCK AND EMPLOYEE BENEFIT TRUST
By:______________________________
Name:____________________________
Title:___________________________
ANNEX A
PRINCIPAL PAYMENT DATES
Principal Principal
Payment Date Payments
30-Sep-1995 $
-0-
30-Sep-1996 -0-
30-Sep-1997 -0-
30-Sep-1998 -0-
30-Sep-1999 -0-
30-Sep-2000 456,874,500
-------------
$456,874,500
=============
COMMON STOCK PURCHASE AGREEMENT
THIS COMMON STOCK PURCHASE AGREEMENT (the "Agreement") is made
this 28th day of February, 1995, between Browning-Ferris
Industries, Inc., a Delaware corporation (the "Seller" or the
"Company"), and Wachovia Bank of North Carolina, N.A., not in its
individual or corporate capacity, but solely in its capacity as
trustee (the "Trustee") of the Browning-Ferris Industries, Inc.
Stock and Employee Benefit Trust (the "Trust", which is hereinafter
sometimes referred to as the "Purchaser") under a trust agreement
between the Seller and the Trustee dated as of February 28, 1995
(the "Trust Agreement").
W I T N E S S E T H:
WHEREAS, as contemplated by the Trust Agreement, the Purchaser
is to purchase from the Seller, and the Seller is to sell to the
Purchaser, 15,000,000 shares of the Seller's Common Stock, par
value $.16-2/3 per share (the "Common Shares"), all as more
specifically provided herein;
NOW, THEREFORE, in consideration of the mutual covenants and
undertakings contained herein, and subject to and on the terms and
conditions herein set forth, the parties hereto agree as follows:
ARTICLE I
PURCHASE AND SALE OF SHARES
1.1. Purchase and Sale. Subject to the terms and conditions
set forth herein, the Seller will sell to the Purchaser, and the
Purchaser will purchase from the Seller, at the Closing (as
hereinafter defined), the Common Shares, and, in consideration for
the Common Shares, the Purchaser will deliver to the Seller (i) the
note in the form of Appendix 1 to this Agreement in the principal
amount of $456,874,500 (the "Note") and (ii) cash in the amount of
$2,500,500.
1.2. Closing. The closing of the sale and purchase of the
Common Shares hereunder (the "Closing") will be held at the offices
of the Seller at 10:00 a.m. Houston, Texas time, on the date of
execution and delivery of this Agreement by the Seller and the
Purchaser, or at such other time, date and place as may be mutually
agreed upon by the Seller and the Purchaser.
1.3. Delivery and Payment. At the Closing, the Seller will
deliver to the Purchaser a certificate representing the Common
Shares, which certificate shall be registered in the name of the
Trustee, or the name of its nominee, against payment therefor by
the Purchaser to the Seller of the aggregate consideration set
forth in Section 1.1 hereof. The Seller will pay all stamp and
other transfer taxes, if any, that may be payable in respect of the
sale and delivery of the Common Shares.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF THE SELLER
The Seller represents and warrants to the Purchaser as
follows:
2.1. Corporate Existence and Authority. The Seller (a) is a
corporation duly organized, validly existing and in good standing
under the laws of the State of Delaware, (b) has all requisite
corporate power to execute, deliver and perform this Agreement and
(c) has taken all necessary corporate action to authorize the
execution, delivery and performance of this Agreement.
2.2. No Conflict. The execution and delivery of this
Agreement does not, and the consummation of the transactions
contemplated hereby will not, violate, conflict with or constitute
a default under (a) the Seller's certificate of incorporation or
bylaws, (b) any agreement, indenture or other instrument to which
the Seller is a party or by which the Seller or its assets may be
bound or (c) any law, regulation, order, arbitration, award,
judgment or decree applicable to the Seller.
2.3. Validity. This Agreement has been duly executed and
delivered by the Seller and is a valid and binding agreement of the
Seller enforceable against the Seller in accordance with its terms,
except as the enforceability thereof may be limited by any
applicable bankruptcy, insolvency, reorganization, moratorium,
fraudulent conveyance or other laws affecting the enforcement of
creditors' rights generally, and by general principles of equity.
2.4. The Common Shares. The Common Shares have been duly
authorized and, when sold as contemplated hereby, will be validly
issued, fully-paid and non-assessable shares of the Seller. No
stockholder of the Seller has any preemptive or other subscription
right to acquire any shares of Common Stock. The Seller will
convey to the Purchaser, on the date of Closing, good and valid
title to the Common Shares free and clear of any liens, claims,
security interests and encumbrances.
2.5. Litigation. There are no actions, suits, proceedings,
arbitrations or investigations pending or, to the Seller's best
knowledge, threatened in any court or before any governmental
agency or instrumentality or arbitration panel or otherwise against
or by the Seller which seek to or could restrain, prohibit, rescind
or declare unlawful, or result in substantial damages in respect
of, this Agreement or the performance hereof by the Seller
(including, without limitation, the delivery of the Common Shares).
2.6. Business and Financial Information. Seller has
heretofore delivered to the Purchaser copies of the audited
consolidated balance sheets, statements of stockholders' equity,
statements of income and statements of cash flows of Seller and its
consolidated subsidiaries as of and for the fiscal years ended
September 30, 1993 and 1994 and the unaudited consolidated balance
sheet, statement of stockholders' equity, statement of income and
statement of cash flows of Seller and its consolidated subsidiaries
as of and for the three months ended December 31, 1994 (including
the related notes and schedules, the "Seller Financial
Statements"). The Seller Financial Statements fairly present the
consolidated results of operations, changes in stockholders' equity
and cash flows for the periods set forth therein and the
consolidated financial position as at the dates thereof of Seller
and its consolidated subsidiaries, in accordance with generally
accepted accounting principles consistently applied throughout the
periods involved, except as set forth in the notes thereto and
subject, in the case of unaudited financial statements, to the
omission of certain notes not ordinarily accompanying such
unaudited financial statements and to normal year-end audit
adjustments which in each case will not be material to Seller and
its consolidated subsidiaries taken as a whole. Since
September 30, 1994, Seller has filed with the Securities and
Exchange Commission all forms, reports and documents required
pursuant to the Securities Act of 1933, as amended (the "1933
Act"), and the Securities Exchange Act of 1934, as amended (the
"1934 Act"), to be filed by it (the "Disclosure Documents"). At
the time filed, all of the Disclosure Documents complied as to form
in all material respects with all applicable requirements of such
Acts. None of the Disclosure Documents, at the time filed,
contained any untrue statement of a material fact or omitted to
state a material fact required to be stated therein or necessary in
order to make the statements therein, in light of the circumstances
under which they were made, not misleading.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE PURCHASER
The Purchaser represents and warrants to the Seller as
follows:
3.1. Authority; Validity. The Purchaser has full power and
authority under the Trust to execute and deliver this Agreement and
the Note and to consummate the transactions contemplated hereby.
This Agreement has been duly authorized, executed and delivered by
the Trustee on behalf of the Trust and is a valid and binding
agreement of the Purchaser enforceable in accordance with its
terms, except as the enforceability thereof may be limited by any
applicable bankruptcy, insolvency, reorganization, moratorium,
fraudulent conveyance or other laws affecting the enforcement of
creditors' rights generally, and by general principles of equity.
The Note has been duly authorized by the trustee on behalf of the
Trust and, upon execution and delivery by the Trustee on behalf of
the Trust, the Note will be a valid and binding agreement of the
Purchaser enforceable in accordance with its terms, except as the
enforceability thereof may be limited by any applicable bankruptcy,
insolvency, reorganization, moratorium, fraudulent conveyance or
other laws affecting the enforcement of creditors' rights
generally, and by general principles of equity.
3.2. No Conflict. The execution and delivery of this
Agreement do not, and the execution and delivery of the Note and
the consummation of the transactions contemplated hereby and
thereby will not, violate, conflict with or constitute a default
under (a) the terms of the Trust, (b) any agreement, indenture or
other instrument to which the Trust is a party or by which the
Trust or its assets may be bound or subject or (c) any law,
regulation, order, arbitration award, judgment or decree applicable
to the Trust.
ARTICLE IV
RESTRICTIONS ON DISPOSITION OF THE COMMON SHARES
4.1. Restricted Securities. The Purchaser acknowledges that
the Purchaser is acquiring the Common Shares pursuant to a
transaction exempt from registration under the 1933 Act. The
Purchaser represents, warrants and agrees that all Common Shares
acquired by the Purchaser pursuant to this Agreement are being
acquired for investment without any intention of making a
distribution thereof, or of making any sale or other disposition
thereof which would be in violation of the 1933 Act or any
applicable state securities law, and that the Purchaser will not
dispose of any of the Common Shares, except that the Trustee will,
from time to time, convey to certain Plans (as defined in the Trust
Agreement) or sell pursuant to an effective Registration Statement
under the 1933 Act or an exemption therefrom, a portion of the
Common Shares to satisfy the obligations of the Company or
affiliate of the Company under such Plans, and except upon
termination of the Trust to the extent that the Trust then holds
any Common Shares, all in compliance with all provisions of
applicable federal and state law regulating the issuance, sale and
distribution of securities and then only in compliance with the
Trust Agreement.
4.2. Legend. Until such time as the Common Shares are
registered pursuant to the provisions of the 1933 Act or may be
sold without registration in accordance with Rule 144 under the
1933 Act, any certificate or certificates representing the Common
Shares delivered pursuant to Section 1.1 will bear a legend in
substantially the following form:
"The shares represented by this certificate have not
been registered under the Securities Act of 1933, as
amended, and may not be sold, transferred or otherwise
disposed of unless they have first been registered under
such Act or unless an exemption from registration is
available."
The Seller may place stop transfer orders against the registration
or transfer of any shares evidenced by such a certificate or
certificates until such time as the requirements of the foregoing
are satisfied.
ARTICLE V
COVENANTS OF SELLER
The Seller agrees that:
5.1. Compliance and Filings. The Seller will comply with all
federal, state, local and foreign laws, regulations or orders, and
all the rules of any stock exchange or similar entity which are
applicable to it or to the conduct of its business, and, without
limiting the generality of the foregoing, shall make such filings,
distributions and disclosures as are required by the 1933 Act, the
1934 Act or any of the regulations, rules or orders promulgated
thereunder, insofar as the failure to comply would materially and
adversely affect the Company and its subsidiaries taken as a whole.
The Seller will maintain complete and accurate books, records and
accounts in accordance with the requirements of Section 13(b)(2)
under the 1934 Act.
5.2. Registration; Listing. As soon as practicable after the
Closing, the Seller shall cause the Common Shares to be listed on
the New York Stock Exchange, Inc. The Seller will, after a written
request by the Committee (as such term is defined in the Trust
Agreement) to register under the 1933 Act such number of Common
Shares as the Committee may from time to time direct, prepare for
filing at the Seller's expense a registration statement with the
Securities and Exchange Commission sufficient to permit the public
offering of such Common Shares in accordance with the terms of this
Agreement, and the Seller will use its best efforts in all matters
necessary or advisable to cause such registration statement to
become effective as promptly as practicable and to remain effective
for a reasonable period, all to the extent requisite to permit the
sale or other disposition of such Common Shares. The Seller shall
also use its best efforts to register or qualify the Common Shares
so registered under the securities and blue sky laws of such
jurisdictions within the United States as the Trustee may
reasonably request, provided, however, that the Seller shall not be
required to consent to general service of process for all purposes
in any jurisdiction where it is not then qualified.
ARTICLE VI
CONDITIONS TO CLOSING
6.1. Conditions to Obligations of Purchaser. The obligation
of the Purchaser to purchase the Common Shares is subject to the
satisfaction of the following conditions on the date of Closing:
(a) The representations and warranties of the Seller set
forth in Article II hereof shall be true and correct; and if
the Closing shall occur on a date other than the date of this
Agreement, the Purchaser shall have been furnished with a
certificate, dated the date of the Closing, to such effect,
signed by an authorized officer of the Seller; and
(b) All permits, approvals, authorizations and consents
of third parties necessary for the consummation of the
transactions herein shall have been obtained, and no order of
any court or administrative agency shall be in effect which
restrains or prohibits the transactions contemplated by this
Agreement, and no suit, action or other proceeding by any
governmental body or other person shall have been instituted
which questions the validity or legality of the transactions
contemplated by this Agreement.
6.2. Conditions to Obligations of the Seller. The obligation
of the Seller to issue, sell and deliver the Common Shares to the
Purchaser is subject to the satisfaction of the following
conditions on the date of Closing;
(a) The representations and warranties of the Purchaser
set forth in Article III hereof shall be true and correct; and
if the Closing shall occur on a date other than the date of
this Agreement, the Seller shall have been furnished with a
certificate dated the date of the Closing, to such effect,
signed by an authorized officer of the Trustee; and
(b) No order of any court or administrative agency shall
be in effect which restrains or prohibits the transactions
contemplated by this Agreement, and no suit, action or other
proceeding by any governmental body or other person shall have
been instituted which questions the validity or legality of
the transactions contemplated by this Agreement.
ARTICLE VII
MISCELLANEOUS
7.1. Expenses. The Seller shall pay all of its expenses, and
it shall pay the Purchaser's expenses, in connection with the
authorization, preparation, execution and performance of this
Agreement, including, without limitation, the reasonable fees and
expenses of the Trustee, its agents, representatives, counsel,
financial advisors and consultants.
7.2. Survival of Seller's Representations and Warranties. All
representations and warranties made by the Seller to the Purchaser
in this Agreement shall survive the Closing.
7.3. Notices. All notices, requests, or other communications
required or permitted to be delivered hereunder shall be in
writing, delivered by registered or certified mail, return receipt
requested, telecopier or hand delivery as follows:
(a) To the Seller:
Browning-Ferris Industries, Inc.
757 N. Eldridge
Houston, Texas 77079
Attention: Treasurer
Telecopier: (713) 584-8622
Assistant Secretary
Telecopier: (713) 584-8652
(b) To the Purchaser:
Wachovia Bank of North Carolina, N.A.
301 North Main Street
Winston-Salem, North Carolina 27150-3099
Attention: Alan C. Frazier
Telecopier: (910) 770-4059
Any party hereto may from time to time, by written notice given as
aforesaid, designate any other address to which notices, requests
or other communications addressed to it shall be sent.
7.4. Specific Performance. The parties hereto acknowledge
that damages would be an inadequate remedy for any breach of the
provisions of this Agreement and agree that the obligations of the
parties hereunder shall be specifically enforceable, and neither
party will take any action to impede the other from seeking to
enforce such rights or specific performance.
7.5. Successors and Assigns; Integration; Assignment. This
Agreement shall be binding upon, inure to the benefit of and be
enforceable by the parties hereto and their respective legal
representatives, successors and assigns. This Agreement
(a) constitutes, together with the Note, the Trust Agreement and
any other written agreements between the Purchaser and the Seller
executed and delivered on the date hereof, the entire agreement
between the parties hereto and supersedes all other prior
agreements and understandings, both written and oral, among the
parties, with respect to the subject matter hereof, (b) shall not
confer upon any person other than the parties hereto any rights or
remedies hereunder and (c) shall not be assignable by operation of
law or otherwise, except that the Trustee may assign all its rights
hereunder to any corporation or other institution exercising trust
powers in connection with any such institution assuming the duties
of a trustee under the Trust.
7.6. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Delaware.
7.7. Further Assurances. Subject to the terms and conditions
herein provided, each of the parties hereto agrees to use all
reasonable efforts to take, or cause to be taken, all actions and
to do, or cause to be done, all things necessary, proper or
advisable to consummate and make effective the transactions
contemplated by this Agreement.
7.8. Amendment and Waiver. No amendment or waiver of any
provision of this Agreement or consent to departure therefrom shall
be effective unless in writing and signed by the Purchaser and the
Seller.
7.9. Counterparts. This Agreement may be executed in any
number of counterparts with the same effect as if the signatures
thereto were upon one instrument.
7.10. Certain Limitations. The execution, delivery and
performance by the Trustee of this Agreement have been, and will
be, effected by the Trustee solely in its capacity as Trustee under
the terms of the Trust and not in its individual or corporate
capacity. Nothing in this Agreement shall be interpreted to
increase, decrease or modify in any manner any liability of the
Trustee to the Seller or to any trustee, representative or other
claimant by right of the Seller resulting from the Trustee's
performance of its duties under the constituent instruments of the
Trust, and no personal or corporate liability shall be asserted or
enforceable against the Trustee by reason of any of the covenants,
statements or representations contained in this Agreement.
7.11. Incorporation. The terms and conditions of the
Trust Agreement relating to the nature of the responsibilities of
the Trustee and the indemnification of the Trustee by the Seller
are incorporated herein by reference and made applicable to this
Agreement.
IN WITNESS WHEREOF, the undersigned have duly executed this
Agreement on the date and year first above written.
BROWNING-FERRIS INDUSTRIES, INC.
By: /s/ Henry L. Hirvela
________________________________
Name: Henry L. Hirvela
Title: Vice President and Treasurer
WACHOVIA BANK OF NORTH CAROLINA, N.A.,
as Trustee
By: /s/ Alan C. Frazier
_________________________________
Name: Alan C. Frazier
Title: Vice President
APPENDIX 1
PROMISSORY NOTE
$456,874,500.00
Houston, Texas February 28, 1995
FOR VALUE RECEIVED, the undersigned, Wachovia Bank of
North Carolina, N.A., not in its individual or corporate capacity
but solely in its capacity as Trustee of the Browning-Ferris
Industries, Inc. Stock and Employee Benefit Trust (the "Trust")
hereby promises on behalf of the Trust to pay to the order of
Browning-Ferris Industries, Inc., a Delaware corporation (the
"Company"), at the principal offices of the Company in Houston,
Texas or at such other place as the Company shall designate in
writing, the aggregate principal amount of FOUR HUNDRED FIFTY SIX
MILLION EIGHT HUNDRED SEVENTY FOUR THOUSAND FIVE HUNDRED AND NO/100
DOLLARS ($456,874,500.00), as shown on Annex A attached hereto as
such may be amended from time to time, with interest in arrears
thereon, as hereinafter provided.
Principal shall be paid in installments in the amounts
and on the dates set forth on the maturity schedule attached hereto
as Annex A, the last such installment due on September 30, 2000;
provided, however, that this Note may be prepaid in whole or in
part at any time without penalty in accordance with Section 2.2 of
the Trust Agreement creating the Trust (the "Trust Agreement"); and
provided further, in accordance with Section 2.1 or 2.2 of the
Trust Agreement, that all or any portion of the principal of this
Note outstanding at any time, together with any accrued but unpaid
interest on this Note, may be deemed forgiven; and provided further
in the event that the Trust shall have been terminated in
accordance with Section 8.2 of the Trust Agreement and the Trustee
shall have complied with the requirements of Section 8.3 of the
Trust Agreement, then any remaining principal of this Note then
outstanding, together with any accrued but unpaid interest on this
Note, shall be deemed forgiven. Interest on the unpaid principal
balance, at an annual interest rate equal to 8.5%, shall be paid
annually, in arrears, on or before each October 15 for interest
accrued and unpaid as of the previous September 30, such payments
commencing October 15, 1995, and shall be calculated on the basis
of a 360-day year of 30-day months. Payments received within any
Trust Year (as defined in the Trust Agreement) shall be applied
(i) first to interest accrued and unpaid as of the date of any such
payment and then, to the extent that any such payment exceeds such
accrued and unpaid interest, (ii) to prepay interest that accrues
after such payment through the end of such Trust Year, and then,
(iii) to pay principal installments due within such Trust Year, and
then, (iv) to the extent not otherwise distributed in accordance
with Section 2.3 of the Trust Agreement, to additional installments
of principal in the order of their scheduled maturity. Whenever
any payment falls due on a Saturday, Sunday or public holiday, such
payment shall be made on the next succeeding business day. Upon
termination of the Trust, the entire unpaid balance of principal
and interest shall be immediately payable.
This Note shall be construed under the laws of the State
of Delaware.
The undersigned represents and warrants that the
indebtedness represented by this Note was incurred for the purpose
of purchasing shares of Common Stock, par value $.16-2/3 per share,
of the Company.
The Note may not be assigned by the Company, other than
by operation of law, without the prior express written consent of
the undersigned.
The Company shall have no recourse whatsoever to any
assets of the Trustee in its individual or corporate capacity for
repayment. The Trustee is entering into this Note not in its
individual or corporate capacity but solely as Trustee, and no
personal or corporate liability or personal or corporate
responsibilities are assumed by, or shall at any time be asserted
or enforceable against, the Trustee in its individual or corporate
capacity under, or with respect to, this Note.
WACHOVIA BANK OF NORTH CAROLINA, N.A.,
on behalf of
BROWNING-FERRIS INDUSTRIES, INC.
STOCK AND EMPLOYEE BENEFIT TRUST
By:____________________________________
Name:__________________________________
Title:_________________________________
ANNEX A
PRINCIPAL PAYMENT DATES
Principal Principal
Payment Date Payments
30-Sep-1995 $
-0-
30-Sep-1996 -0-
30-Sep-1997 -0-
30-Sep-1998 -0-
30-Sep-1999 -0-
30-Sep-2000 456,874,500
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$456,874,500
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PROMISSORY NOTE
$456,874,500.00
Houston, Texas February 28, 1995
FOR VALUE RECEIVED, the undersigned, Wachovia Bank of North
Carolina, N.A., not in its individual or corporate capacity but
solely in its capacity as Trustee of the Browning-Ferris
Industries, Inc. Stock and Employee Benefit Trust (the "Trust")
hereby promises on behalf of the Trust to pay to the order of
Browning-Ferris Industries, Inc., a Delaware corporation (the
"Company"), at the principal offices of the Company in Houston,
Texas or at such other place as the Company shall designate in
writing, the aggregate principal amount of FOUR HUNDRED FIFTY SIX
MILLION EIGHT HUNDRED SEVENTY FOUR THOUSAND FIVE HUNDRED AND NO/100
DOLLARS ($456,874,500.00), as shown on Annex A attached hereto as
such may be amended from time to time, with interest in arrears
thereon, as hereinafter provided.
Principal shall be paid in installments in the amounts and on
the dates set forth on the maturity schedule attached hereto as
Annex A, the last such installment due on September 30, 2000;
provided, however, that this Note may be prepaid in whole or in
part at any time without penalty in accordance with Section 2.2 of
the Trust Agreement creating the Trust (the "Trust Agreement"); and
provided further, in accordance with Section 2.1 or 2.2 of the
Trust Agreement, that all or any portion of the principal of this
Note outstanding at any time, together with any accrued but unpaid
interest on this Note, may be deemed forgiven; and provided further
in the event that the Trust shall have been terminated in
accordance with Section 8.2 of the Trust Agreement and the Trustee
shall have complied with the requirements of Section 8.3 of the
Trust Agreement, then any remaining principal of this Note then
outstanding, together with any accrued but unpaid interest on this
Note, shall be deemed forgiven. Interest on the unpaid principal
balance, at an annual interest rate equal to 8.5%, shall be paid
annually, in arrears, on or before each October 15 for interest
accrued and unpaid as of the previous September 30, such payments
commencing October 15, 1995, and shall be calculated on the basis
of a 360-day year of 30-day months. Payments received within any
Trust Year (as defined in the Trust Agreement) shall be applied
(i) first to interest accrued and unpaid as of the date of any such
payment and then, to the extent that any such payment exceeds such
accrued and unpaid interest, (ii) to prepay interest that accrues
after such payment through the end of such Trust Year, and then,
(iii) to pay principal installments due within such Trust Year, and
then, (iv) to the extent not otherwise distributed in accordance
with Section 2.3 of the Trust Agreement, to additional installments
of principal in the order of their scheduled maturity. Whenever
any payment falls due on a Saturday, Sunday or public holiday, such
payment shall be made on the next succeeding business day. Upon
termination of the Trust, the entire unpaid balance of principal
and interest shall be immediately payable.
This Note shall be construed under the laws of the State of
Delaware.
The undersigned represents and warrants that the indebtedness
represented by this Note was incurred for the purpose of purchasing
shares of Common Stock, par value $.16 per share, of the Company.
The Note may not be assigned by the Company, other than by
operation of law, without the prior express written consent of the
undersigned.
The Company shall have no recourse whatsoever to any assets of
the Trustee in its individual or corporate capacity for repayment.
The Trustee is entering into this Note not in its individual or
corporate capacity but solely as Trustee, and no personal or
corporate liability or personal or corporate responsibilities are
assumed by, or shall at any time be asserted or enforceable
against, the Trustee in its individual or corporate capacity under,
or with respect to, this Note.
WACHOVIA BANK OF NORTH CAROLINA, N.A.,
on behalf of
BROWNING-FERRIS INDUSTRIES, INC.
STOCK AND EMPLOYEE BENEFIT TRUST
By: /s/ Alan C. Frazier
___________________________________
Name: Alan C. Frazier
Title: Vice President
