<PAGE> 1
Registration No. 33-
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
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BROWNING-FERRIS INDUSTRIES, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 74-1673682
(State or other jurisdiction of incorporation or (I.R.S. Employer
organization) Identification No.)
757 N. Eldridge 77079
Houston, Texas (Zip Code)
(Address of principal executive offices)
Browning-Ferris Industries, Inc.
1996 Stock Incentive Plan
(Full title of the plan)
GERALD K. BURGER
Browning-Ferris Industries, Inc.
757 N. Eldridge
Houston, Texas 77079
(Name and address of agent for service)
Telephone number, including area code, of agent for service: (281) 870-7820
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Cover continued on next page.
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CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
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Proposed Proposed
Title of Amount Maximum Maximum
Securities to Being Offering Aggregate Amount of
be Registered Registered Price Per Share Offering Price Registration Fee
- ------------- ------------- --------------- -------------- ----------------
<S> <C> <C> <C> <C>
Common Stock, 10,000,000(1) $36.1875(2) $361,875,000(2) $109,659
$.16-2/3 Par
Value (3)
- -----------------------------------------------------------------------------------------------------------
</TABLE>
(1) Pursuant to Rule 416, there are also registered hereby such additional
shares of Common Stock as may be issuable by reason of the operation
of the anti-dilution provisions of the plan.
(2) Estimated solely for the purpose of calculating the registration fee
in accordance with Rule 457(h) using the average of the high and low
prices reported on the New York Stock Exchange transactions tape on
October 13, 1997, pursuant to 457(c).
(3) Includes the preferred stock purchase rights associated with the
Common Stock.
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<PAGE> 3
PART II.
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents which have been filed by Browning-Ferris Industries,
Inc. (the "Company") with the Securities and Exchange Commission (the
"Commission") are incorporated herein by reference:
(a) The Company's Annual Report on form 10-K for the fiscal year
ended September 30, 1996,
(b) The Company's Quarterly Reports on Form 10-Q for the quarterly
periods ended December 31, 1996, March 31, 1997 and June 30,
1997,
(c) The Company's Current Reports on Form 8-K filed October 6,
1997 and October 15, 1997, and
(d) The description of the Company's common stock set forth under
the caption "Capital Stock" in the Company's Registration
Statement on Form S-3 filed with the Commission on January 10,
1996, together with any amendment or report filed with the
Commission for the purpose of updating such description.
All reports and other documents subsequently filed by the Company pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as
amended, prior to the filing of a post-effective amendment which indicates that
all securities offered hereby have been sold or which deregisters all
securities remaining unsold, shall be deemed to be incorporated by reference
herein and to be a part hereof from the date of the filing of such reports and
documents.
ITEM 4. DESCRIPTION OF SECURITIES
Not Applicable
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Not Applicable
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 145 of the General Corporation Law of the State of Delaware empowers
the Company to, and the By-laws of the Company provide that it shall, indemnify
any person who was or is a party or is threatened to be made a party to, or
otherwise becomes involved in, any threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative, investigative
(formal or informal) other than an action by or in the right of the Company, by
reason of the fact that he is or was a director, officer, employee or agent of
the Company, or is or was serving at the request of the Company as a director,
officer, employee or agent of another corporation, partnership, joint venture,
trust or other enterprise, against expenses (including attorneys' fees),
judgments, fines and amounts paid in settlement actually and reasonably
incurred by him in connection with such action, suit or proceeding if he acted
in good faith and in a manner he reasonably believed to be in or not opposed to
the best interests of the Company, and, with respect to any criminal action or
proceeding, had no reasonable cause to believe his conduct was unlawful; except
that, in the case of an action or suit by or in the right of the Company, no
indemnification may be made in respect of any claim, issue or matter as to
which such person shall have been adjudged to be liable to the Company, unless
and only to the extent that the Delaware Court of Chancery or the
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<PAGE> 4
court in which such action or suit was brought shall determine that such person
is fairly and reasonably entitled to indemnity for proper expenses.
The Company's By-laws provide, pursuant to Section 145 of the General
Corporation Law of the State of Delaware, for indemnification of officers,
directors, employees and agents of the Company and persons serving at the
request of the Company in such capacities for other business organizations
against certain losses, costs, liabilities and expenses incurred by reason of
their positions with the Company or such other business organizations.
The Company's Restated Certificate of Incorporation contains a provision which
eliminates, to the fullest extent permitted by law, director liability for
monetary damages for breaches of fiduciary duty of care.
In addition, the Company has to enter into Indemnity Agreements with each of
its directors and with certain officers of the Company designated by the Board
of Directors or its Executive Committee. The Indemnity Agreements require that
the Company indemnify directors and designated officers who are parties thereto
in all cases to the fullest extent permitted by applicable law.
Pursuant to a policy of directors' and officers' liability and corporation
reimbursement insurance, the Company's officers and directors are insured,
subject to the limits, retention, exceptions and other terms and conditions of
such policy, against liability for any actual or alleged breach of duty,
neglect, error, misstatement, misleading statement, omission or other act done
or wrongfully attempted while acting in their capacities as directors or
officers of the Company.
Pursuant to a number of agreements by which the Company acquired ownership of
businesses, the former owners of those businesses individually agreed to
indemnify each officer of the Company, each person who may be liable as a
director of the Company or as a person who controls or shall have controlled
the Company within the meaning of the Securities Act of 1933 (the "Act")
against certain liabilities that such officers, directors or controlling
persons might incur. Generally, such former owners have agreed to indemnify
such officers, directors or controlling persons against any and all damages or
liabilities to which such officers, directors or controlling persons may become
subject under the Act, the Securities Exchange Act of 1934, state securities
laws, the common law or otherwise, including legal and other expenses incurred
in connection therewith, but only insofar as such liabilities arise out of or
are based upon any untrue statement or omission or alleged omission based upon
information furnished to the Company by or on behalf of such former owner for
use in certain registration statements filed by the Company under the Act or
upon failure of such former owner to provide such information.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not Applicable
ITEM 8. EXHIBITS
*4.1 - Restated Certificate of Incorporation of the Company dated
October 7, 1991. (incorporated by reference to Exhibit No.
3(a) of Form 10-K for the fiscal year ended September 30,
1993.)
*4.2 - By-laws of the Company, as amended (incorporated by reference
to Exhibit No. 3 of the Company's Report on Form 10-Q for the
quarterly period ended March 31, 1997.)
4.3 - Browning-Ferris Industries, Inc. 1996 Stock Incentive Plan.
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<PAGE> 5
4.4 - Form of the Company's 1996 Stock Incentive Plan Agreement for
Non-qualified Stock Options.
5 - Opinion as to the legality of the securities being registered.
23.1 - Consent of Arthur Andersen L.L.P.
23.2 - Consent of Counsel (included in the opinion filed as Exhibit 5).
24 - Powers of Attorney (included under the caption "Powers of
Attorney and Signatures").
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*Incorporated by reference.
ITEM 9. UNDERTAKINGS.
A. The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or
sales are being made, a post-effective
amendment to this Registration Statement:
(i) To include any prospectus required
by Section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any
facts or events arising after the
effective date of the Registration
Statement (or the most recent
post-effective amendment thereof)
which, individually or in the
aggregate, represent a fundamental
change in the information set forth
in the Registration Statement.
Notwithstanding the foregoing, any
increase or decrease in volume of
securities offered (if the total
dollar value of securities offered
would not exceed that which was
registered) and any deviation from
the low or high and of the estimated
maximum offering range may be
reflected in the form of prospectus
filed with the Commission pursuant
to Rule 424(b) if, in the aggregate,
the changes in volume and price
represent no more than a twenty
percent (20%) change in the maximum
aggregate offering price set forth
in the "Calculation of Registration
Fee" table in the effective
registration statement;
(iii) To include any material information
with respect to the plan of
distribution not previously
disclosed in the Registration
Statement or any material change to
such information in the Registration
Statement;
Provided, however, that paragraphs (i) and (ii)
above do not apply if the information required
to be included in a post-effective amendment by
those paragraphs is contained in periodic
reports filed by the registrant pursuant to
Section 13 or 15(d) of the Securities Exchange
Act of 1934 that are incorporated by reference
in the Registration Statement;
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<PAGE> 6
(2) That, for the purpose of determining any
liability under the Securities Act of 1933,
each such post-effective amendment shall be
deemed to be a new registration statement
relating to the securities offered therein, and
the offering of such securities at that time
shall be deemed to be the initial bona fide
offering thereof; and
(3) To remove from registration by means of a
post-effective amendment any of the securities
being registered which remain unsold at the
termination of the offering.
B. The undersigned registrant hereby undertakes that, for
purposes of determining any liability under the Securities
Act of 1933, each filing of the registrant's annual report
pursuant to Section 13(a) or 15(d) of the Securities
Exchange Act of 1934 that is incorporated by reference in
this Registration Statement shall be deemed to be a new
registration statement relating to the securities offered
therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering
thereof.
C. Insofar as indemnification for liabilities arising under
the Securities Act of 1933 may be permitted to directors,
officers and controlling persons of the registrant
pursuant to the foregoing provisions, or otherwise, the
registrant has been advised that in the opinion of the
Securities and Exchange Commission such indemnification is
against public policy as expressed in the Act and is,
therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the
payment by the registrant of expenses incurred or paid by
a director, officer or controlling person of the
registrant in the successful defense of any action, suit
or proceeding) is asserted by such director, officer or
controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of
its counsel the matter has been settled by a controlling
precedent, submit to a court of appropriate jurisdiction
the question whether such indemnification by it is against
public policy as expressed in the Act and will be governed
by the final adjudication of such issue.
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<PAGE> 7
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the
registrant certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-8 and has duly caused this
registration statement to be signed on its behalf by the undersigned, thereunto
duly authorized in the City of Houston, State of Texas, on this 16th day of
October, 1997.
BROWNING-FERRIS INDUSTRIES, INC.
(Registrant)
By: /s/ Bruce E. Ranck
-----------------------------------------
Bruce E. Ranck,
President,
Chief Executive Officer
and Director
POWERS OF ATTORNEY AND SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, this
Registration Statement has been signed below by the following persons in the
capacities and on the date indicated. Each of the undersigned officers and
directors of Browning-Ferris Industries, Inc. hereby constitutes and appoints
BRUCE E. RANCK, JEFFREY E. CURTISS and RUFUS WALLINGFORD, and each of them
singly, acting without the others, as true and lawful attorney-in-fact and
agent, with full power of substitution and resubstitution, for him in his name,
place and stead, in any and all capacities, to sign any and all amendments
(including post-effective amendments) to this Registration Statement and to
file the same, with all exhibits thereto, and other documents in connection
therewith, with the Securities and Exchange Commission and to make any and all
state securities law or blue sky filings, granting unto said attorney-in-fact
and agent, full power and authority to do and perform each and every act and
thing requisite or necessary to be done in and about the premises, as fully to
all intents and purposes as he might or could do in person, thereby ratifying
and confirming all that said attorney-in-fact and agent, or his substitute or
substitutes, may lawfully do or cause to be done by virtue hereof.
/s/ William D. Ruckelshaus
---------------------------------------------
William D. Ruckelshaus,
Chairman of the Board
and Director
/s/ Bruce E. Ranck
---------------------------------------------
Bruce E. Ranck,
President, Chief Executive
Officer and Director
/s/ Jeffrey E. Curtiss
---------------------------------------------
Jeffrey E. Curtiss,
Senior Vice President and
Chief Financial Officer
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<PAGE> 8
/s/ David R. Hopkins
---------------------------------------------
David R. Hopkins,
Vice President, Controller and
Chief Accounting Officer
/s/ Gregory D. Brenneman
---------------------------------------------
Gregory D. Brenneman, Director
/s/ William T. Butler
---------------------------------------------
William T. Butler, Director
/s/ C. Jackson Grayson, Jr.
---------------------------------------------
C. Jackson Grayson, Jr., Director
/s/ Gerald Grinstein
---------------------------------------------
Gerald Grinstein, Director
/s/ Harry J. Phillips, Sr.
---------------------------------------------
Harry J. Phillips, Sr., Director
/s/ Joseph L. Roberts, Jr.
---------------------------------------------
Joseph L. Roberts, Jr., Director
/s/ Marc J. Shapiro
---------------------------------------------
Marc J. Shapiro, Director
/s/ Robert M. Teeter
---------------------------------------------
Robert M. Teeter, Director
/s/ Marina v.N. Whitman
---------------------------------------------
Marina v.N. Whitman, Director
Date: October 16, 1997
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<PAGE> 9
INDEX TO EXHIBITS
*4.1 - Restated Certificate of Incorporation of the Company dated
October 7, 1991. (incorporated by reference to Exhibit No.
3(a) of Form 10-K for the fiscal year ended September 30,
1993.)
*4.2 - By-laws of the Company, as amended (incorporated by reference
to Exhibit No. 3 of the Company's Report on Form 10-Q for the
quarterly period ended March 31, 1997.)
4.3 - Browning-Ferris Industries, Inc. 1996 Stock Incentive Plan.
<PAGE> 10
4.4 - Form of the Company's 1996 Stock Incentive Plan Agreement for
Non-qualified Stock Options.
5 - Opinion as to the legality of the securities being registered.
23.1 - Consent of Arthur Andersen L.L.P.
23.2 - Consent of Counsel (included in the opinion filed as Exhibit 5).
24 - Powers of Attorney (included under the caption "Powers of
Attorney and Signatures").
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* Incorporated by reference.
<PAGE> 1
EXHIBIT 4.3
BROWNING-FERRIS INDUSTRIES, INC.
1996 STOCK INCENTIVE PLAN
1. PURPOSE. The 1996 Stock Incentive Plan (the "Plan") is to benefit
Browning-Ferris Industries, Inc. (the "Company") and its subsidiary
corporations through the maintenance and development of its management
by offering certain executives, key employees (including
employee-directors) and consultants of the Company and its
subsidiaries (the "Participants") an opportunity to become owners of
the Common Stock, $.16-2/3 par value, of the Company and is intended
to advance the best interests of the Company by providing such persons
with additional incentive by increasing their proprietary interest in
the success of the Company and its subsidiary corporations.
2. ADMINISTRATION. The Plan shall be administered by the Compensation
Committee of the Board of Directors of the Company or by another
committee designated to act by the Board of Directors (the
"Committee"). The Committee shall be comprised solely of two or more
directors each of whom is an "outside director" within the meaning of
Section 162(m) of the Internal Revenue Code of 1986, as amended, and
the rules and regulations issued thereunder, and a "non-employee
director" as defined in Rule 16b-3 promulgated under the Securities
Exchange Act of 1934, as amended ("Rule 16b-3"). Meetings shall be
held at such times and places as shall be determined by the Committee.
A majority of the members of the Committee shall constitute a quorum
for the transaction of business, and the vote of a majority of those
members present at any meeting shall decide any question brought
before that meeting. In addition, the Committee may take any action
otherwise proper under the Plan by the unanimous written consent of
its members. No member of the Committee shall be liable for any act or
omission of any other member of the Committee or for any act or
omission on his own part, including but not limited to the exercise of
any power or discretion given to him under the Plan, except those
resulting from his own gross negligence or willful misconduct. All
questions of interpretation and application of the Plan, or of options
granted hereunder (the "Options") and of stock awards and restricted
stock (which are defined in Paragraph 17 hereof) granted hereunder,
shall be subject to the determination, which shall be final and
binding, of a majority of the whole Committee.
3. OPTIONS, STOCK AWARDS AND RESTRICTED STOCK GRANTS. The stock subject
to the Options and other provisions of the Plan shall be shares of the
Company's Common Stock, $.16-2/3 par value (the "Stock"). The total
amount of the Stock with respect to which Options, stock awards and
restricted stock may be granted under this Plan shall not exceed in
the aggregate 10,000,000 shares, but no more than 1,500,000 shares of
Stock in the aggregate may be awarded as stock awards and restricted
stock grants; provided, that the class and aggregate number of shares
of Stock which may be subject to Options, stock awards and restricted
stock granted hereunder shall be subject to adjustment in accordance
with the provisions of Paragraph 16 hereof. Such shares of Stock may
be treasury shares or authorized but unissued shares of Stock. In the
event that any outstanding Option for any reason shall
<PAGE> 2
expire or is terminated or canceled, the shares of Stock allocable to
the unexercised portion of such Option may again be subject to an
Option, stock award or restricted stock under the Plan.
4. AUTHORITY TO GRANT OPTIONS. The Committee may grant from time to time
to such eligible individuals (the "Optionees") as set forth in
Paragraph 5 an Option or Options to buy a stated number of shares of
Stock under the terms and conditions of the Plan and the stock option
agreement. Options granted under the Plan may, in the discretion of
the Committee, be either incentive stock options as defined in Section
422 of the Internal Revenue Code of 1986, as amended (the "Code"), or
non-qualified stock options. Each stock option agreement shall
specifically state, for each Option granted thereunder, whether the
Option is an incentive stock option or a non-qualified option, but any
Option not designated by the Committee as an incentive stock option
shall be a non-qualified stock option. In no event, however, shall
both an incentive stock option and a non-qualified stock option be
granted together under the Plan in such a manner that the exercise of
one Option affects the rights to exercise the other. No Options shall
be granted under the Plan subsequent to September 3, 2006. Except as
provided in Paragraph 6, all provisions of this Plan relating to
options apply to both incentive and non-qualified options. The only
Options under the Plan which may be granted are those which either (i)
are granted after adoption of the Plan and are conditioned upon
approval of the Plan by the stockholders of the Company within twelve
months of such adoption or (ii) are granted after both adoption of the
Plan and approval thereof by the stockholders of the Company within
twelve months after the date of such adoption, all as provided in
Paragraph 21 hereof. The maximum number of Options which may be
granted to any one Participant from this Plan annually is 250,000;
provided, that the class and the aforesaid maximum number of shares
shall be subject to adjustments in accordance with the provisions of
Paragraph 16 hereof.
5. ELIGIBILITY FOR STOCK OPTIONS. Except as provided in Paragraph 6(iv),
the individuals who shall be eligible to receive Options under the
Plan shall be key employees (including employee-directors) of the
Company or of any subsidiary corporation and any person who is a party
to a written consulting agreement with the Company or any of its
subsidiary corporations, as determined by the Committee. Non-employee
directors are not eligible. For all purposes of the Plan, the term
"subsidiary corporation" shall mean any corporation of which the
Company is the "parent corporation" as that term is defined in Section
424(e) of the Code.
6. PROVISIONS APPLICABLE TO INCENTIVE STOCK OPTIONS. The following
provisions shall apply only to incentive stock options granted under
the Plan:
(i) No incentive stock option shall be granted to any employee
who, at the time such Option is granted, owns, within the
meaning of Section 422 of the Code, stock possessing more than
10 percent of the total combined voting power of all classes
of Stock of the Company or any of its subsidiaries, except
that such an Option may be granted to such an employee if at
the time the Option is granted the option price is at
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<PAGE> 3
least 110 percent of the fair market value of the Stock
(determined in accordance with Paragraph 7) subject to the
Option, and the Option by its terms is not exercisable after
the expiration of five years from the date the Option is
granted;
(ii) To the extent that the aggregate fair market value of stock
with respect to which incentive stock options (without regard
to this subparagraph) are exercisable for the first time by
any individual during any calendar year (under all plans of
the Company and its subsidiaries) exceeds $100,000, such
Options shall be treated as Options which are not incentive
stock options. This subparagraph shall be applied by taking
Options into account in the order in which they were granted.
If some but not all Options granted on any one day are subject
to this subparagraph, then such Options shall be apportioned
between incentive stock option and non-qualified stock option
treatment in such manner as the Committee shall determine.
For purposes of this subparagraph, the fair market value of
any stock shall be determined, in accordance with Paragraph 7,
as of the date the Option with respect to such Stock is
granted.
(iii) No incentive stock option granted under the Plan shall be
exercisable any sooner than one year from the date of grant.
(iv) Only employees (including employee-directors) of the Company
and its subsidiary corporations shall be eligible to receive
incentive stock options.
(v) Incentive stock options shall not be transferable by the
Optionee other than by will or under the laws of descent and
distribution, and shall be exercisable, during the Optionee's
lifetime, only by the Optionee or his legal guardian or
representative.
7. OPTION PRICE; FAIR MARKET VALUE. The price at which shares of Stock
may be purchased pursuant to an Option shall be not less than the fair
market value of the shares of Stock on the date the Option is granted,
and the Committee in its discretion may provide that the price at
which shares may be so purchased shall be more than such fair market
value. For all purposes of this Plan, the "fair market value" of the
Stock shall be the closing selling price of the Stock as reported in
The Wall Street Journal for the last trading day before the date as of
which such fair market value is to be determined. No Option may be
repriced.
8. DURATION OF OPTIONS. Subject to Paragraph 6 (i), no Option shall be
exercisable after the expiration of ten years from the date such
Option is granted. An Option shall expire immediately following the
last day on which such Option is exercisable pursuant to this
Paragraph 8 or any decision of the Committee made pursuant to
Paragraph 9.
9. AMOUNT EXERCISABLE. The Committee in its discretion may provide that
an Option shall be exercisable throughout the term of the Option or
during any lesser period of time from the date of grant of the Option
and ending upon or before the expiration of the term. Each Option may
be exercised, so long as it is valid and outstanding, from time to
time in part or
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<PAGE> 4
as a whole, subject to any limitations with respect to the number of
shares for which the Option may be exercised at a particular time and
to such other conditions as the Committee in its discretion may
specify upon granting the Option.
10. EXERCISE OF OPTIONS. Options shall be exercised by the delivery of
written notice to the Company setting forth the number of shares of
Stock with respect to which the Option is to be exercised, together
with cash, wire transfer, certified check, bank draft or postal or
express money order payable to the order of the Company (the
"Acceptable Funds") for an amount equal to the Option price of such
shares of Stock, or at the election of the Optionee, by exchanging
shares of Stock owned by the Optionee, so long as the exchanged shares
of Stock plus Acceptable Funds paid, if any, have a total fair market
value (determined in accordance with Paragraph 7, as of the date of
exercise) equal to the purchase prices for such shares to be acquired
upon exercise of said Option, and specifying the address to which the
certificates for such shares are to be mailed. Whenever an Option is
exercised by exchanging shares of Stock theretofore owned by the
Optionee: (1) no shares of Stock received upon exercise of that Option
thereafter may be exchanged to pay the Option price for additional
shares of Stock within the following six months; and (2) the Optionee
shall deliver to the Company certificates registered in the name of
such Optionee representing a number of shares of Stock legally and
beneficially owned by such Optionee, free of all liens, claims, and
encumbrances of every kind, accompanied by stock powers duly endorsed
in blank by the record holder of the shares represented by such
certificates, with signature guaranteed by a commercial bank or trust
company or by a brokerage firm having a membership on a registered
national stock exchange. Such notice may be delivered in person to
the Secretary of the Company, or may be sent by mail to the Secretary
of the Company, in which case delivery shall be deemed made on the
date such notice is received. As promptly as practicable after
receipt of such written notification and payment, the Company shall
deliver to the Optionee certificates for the number of shares with
respect to which such Option has been so exercised, issued in the
Optionee's name; provided, that such delivery shall be deemed effected
for all purposes when a stock transfer agent of the Company shall have
deposited such certificates in the United States mail, addressed to
the Optionee, at the address specified pursuant to this Paragraph 10.
The delivery of certificates upon the exercise of Options may, in the
discretion of the Committee, be subject to any reasonable conditions,
including, but not limited to (a) payment to the Company by the person
exercising such Option of the amount, determined by the Company, of
any tax liability of the Company (including but not limited to federal
and state income and employment taxes required to be withheld)
resulting from such exercise, or from a sale or other disposition of
the stock issued upon exercise of such Option (or a stock option
granted under another plan of the Company), if such sale or other
disposition might be a "disqualifying disposition" described in
Section 422(a) of the Code and (b) agreement by the person exercising
such Option to provide the Company with such information as the
Company might reasonably request pertaining to such exercise, sale or
other disposition. The Optionee may elect to have the Company accept
or retain Stock as payment of an Optionee's tax liability to the
Company, as described in (a), above.
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<PAGE> 5
11. TRANSFERABILITY OF OPTIONS. Options shall not be transferable by the
Optionee other than by will or under the laws of descent and
distribution, and shall be exercisable, during the Optionee's
lifetime, only by the Optionee or his legal guardian or
representative; provided, however, subject to Paragraph 6(v), the
Committee, in its sole discretion, may grant Options that are
transferable by the Optionee to (i) immediate family members (such as
children, grandchildren or spouse); (ii) trusts for the benefit of the
Optionee's immediate family members; and (iii) partnerships in which
immediate family members are the only partners.
12. TERMINATION OF EMPLOYMENT OF OPTIONEE. Except as may be otherwise
expressly provided herein, Options shall terminate on such date as
shall be selected by the Committee in its discretion and specified in
the option agreement. If an Optionee is an employee of the Company or
of a subsidiary corporation at the time an Option is granted, and,
before the date of expiration of the Option, an employment
relationship with the Company and all subsidiaries is severed, for any
reason (except as otherwise provided for herein), the Option shall
terminate thirty days following severance of the employment
relationship. Whether authorized leave of absence, or absence on
military or government service, shall constitute severance of an
employment relationship with the Company or a subsidiary corporation
and the Optionee, shall be determined by the Committee at the time
thereof. If, before the date of expiration of a non-qualified Option,
the Optionee shall be retired in good standing from the employ of the
Company and all subsidiaries for reasons of age or disability under
the then established rules of the Company, the Option shall terminate
on the earlier of such date of expiration or one year after the date
of such retirement. In the event of such retirement, the Optionee
shall have the right prior to the termination of such Option to
exercise the Option to the extent to which he was entitled to exercise
such Option immediately prior to such retirement; however, in the
event that the Optionee has retired on or after attaining the age of
sixty-two (62) years, the Optionee shall be entitled to exercise all
or any part of such Option (without regard to any limitations imposed
pursuant to Paragraph 9 hereof. If during the exercisability period
as set forth hereinabove as being one year, an Optionee becomes an
employee or consultant for a competitor of the Company, it shall be
deemed that the employee's retirement status under the Plan shall be
considered as not in good standing and the exercisability period shall
automatically be reduced to thirty days from the date of the
consulting or employment arrangement, and further that the accelerated
vesting of stock options on or after age 62 shall be rescinded and
such Optionee shall only be able to exercise that portion of the
Option which was exercisable immediately prior to such retirement and
the remaining portion shall immediately be deemed canceled. Upon the
death of the Optionee, his executors, administrators, or any person or
persons to whom his Option may be transferred by will or by the laws
of descent and distribution, shall have the right, at any time prior
to the earlier of the date of expiration or one year following the
date of such death, to exercise the Option, in whole or in part
(without regard to any limitations imposed pursuant to Paragraph 9
hereof. The Committee shall be permitted, in its discretion, to grant
to any employee an Option which is an incentive stock option or a
non-qualified stock option with a provision that the Option shall
continue in full force and effect
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<PAGE> 6
as a non-qualified stock option with no modification of the option
price if the person's status with the Company or its subsidiary
changes, but such person continues as a director or consultant of the
Company.
13. REQUIREMENTS OF LAW. The Company shall not be required to sell or
issue any shares under any Option if the issuance of such shares shall
constitute a violation by the Optionee or the Company of any
provisions of any law or regulation of any governmental authority.
14. NO RIGHTS AS STOCKHOLDER. No Optionee shall have rights as a
Stockholder with respect to shares covered by any Option until the
date of issuance of a stock certificate for such shares; and, except
as otherwise provided in Paragraph 16 hereof, no adjustment for
dividends, or otherwise, shall be made if the record date thereof is
prior to the date of issuance of such certificate.
15. NO EMPLOYMENT OR NOMINATION OBLIGATION. The granting of any Option
shall not impose upon the Company or any subsidiary any obligation to
continue to nominate an Optionee for election as a director or to
employ or continue to employ any Optionee; and the right of the
Company or any subsidiary to terminate the employment of any employee
shall not be diminished or affected by reason of the fact that an
Option has been granted to the employee.
16. CHANGES IN THE COMPANY'S CAPITAL STRUCTURE. The existence of
outstanding Options shall not affect in any way the right or power of
the Company or its stockholders to make or authorize any or all
adjustments, recapitalizations, reorganizations or other changes in
the Company's capital structure or its business, or any merger or
consolidation of the Company, or any issue of bonds, debentures,
preferred or prior preference stock ahead of or affecting the Stock or
the rights thereof, or the dissolution or liquidation of the Company,
or any sale or transfer of all or any part of its assets or business,
or any other corporate act or proceeding, whether of a similar
character or otherwise.
If the Company shall effect a subdivision or consolidation of shares
or other capital readjustment, the payment of a stock dividend, or
other increase or reduction of the number of shares of the Stock
outstanding, without receiving compensation therefor in money,
services or property, then (a) the number, class, and per share price
of shares of stock subject to outstanding Options hereunder shall be
appropriately adjusted in such a manner as to entitle an Optionee to
receive upon exercise of an Option, for the same aggregate cash
consideration, an equivalent total number and class of shares as he
would have received had he exercised his Option in full immediately
prior to the event requiring the adjustment; and (b) the number and
class of shares then reserved for issuance under the Plan shall be
adjusted by substituting for the total number and class of shares of
Stock then reserved that number and class of shares of stock that
would have been received by the owner of an equal number of
outstanding shares of each class of Stock as the result of the event
requiring the adjustment.
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<PAGE> 7
After a merger of one or more corporations into the Company, or after
a consolidation of the Company and one or more corporations in which
the Company shall be the surviving corporation, each holder of an
outstanding Option shall, at no additional cost, be entitled upon
exercise of such Option to receive (subject to any required action by
stockholders) in lieu of the number and class of shares as to which
such Option would have been so exercisable in the absence of such
event, the number and class of shares of stock or other securities or
property to which such holder would have been entitled pursuant to the
terms of the agreement of merger or consolidation if, immediately
prior to such merger or consolidation, such holder had been the holder
of record of the number and class of shares of Stock equal to the
number and class of shares as to which such Option shall be so
exercised.
If the Company is merged into or consolidated with another corporation
under circumstances where the Company is not the surviving
corporation, or if the Company sells or otherwise disposes of
substantially all its assets to another corporation and is liquidated
while unexercised Options remain outstanding under the Plan, (i)
subject to the provisions of clause (iii) below, after the effective
date of such merger, consolidation or sale and liquidation, as the
case may be, each holder of an outstanding Option shall be entitled,
upon exercise of such Option, to receive, in lieu of shares of the
Stock, shares of such stock or other securities as the holders of
shares of such class of Stock received pursuant to the terms of the
merger, consolidation or sale; (ii) the Committee may waive any
limitations imposed pursuant to Paragraph 9 hereof so that all
Options, from and after a date prior to the effective date of such
merger, consolidation, or sale and liquidation, as the case may be,
specified by the Committee, shall be exercisable in full; and (iii)
all outstanding Options may be canceled by the Committee as of the
effective date of any such merger, consolidation or sale and
liquidation provided that (x) notice of such cancellation shall be
given to each holder of an Option and (y) each holder of an Option
shall have the right to exercise such Option in full (without regard
to any limitations imposed pursuant to Paragraph 9 hereof during a
30-day period preceding the effective date of such merger,
consolidation or sale and liquidation.
Except as herein before expressly provided, the issue by the Company
of shares of stock of any class, or securities convertible into shares
of stock of any class, for cash or property, or for labor or services
either upon direct sale or upon the exercise of rights or warrants to
subscribe therefor, or upon conversion of shares or obligations of the
Company convertible into such shares or other securities, shall not
affect, and no adjustment by reason thereof shall be made with respect
to, the number, class or price of shares of Stock then subject to
outstanding Options.
17. STOCK AWARDS AND RESTRICTED STOCK GRANTS. A stock award consists of
the issuance by the Company to a Participant of shares of Stock,
without other payment therefor, in lieu of certain cash compensation
or as additional compensation for his services to the Company.
Restricted stock grants consist of shares of Stock which are issued by
the Company to a Participant at a price which may be below their fair
market value or for no payment, but
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<PAGE> 8
subject to restrictions on their sale or other transfer by the
Participant. The issuance of Stock pursuant to stock awards and
restricted stock grants shall be subject to the following terms and
conditions:
(i) Number of Shares. Subject to Section 3, the number of shares
to be issued by the Company to a Participant pursuant to a
stock award or restricted stock grant shall be determined by
the Committee.
(ii) Sale Price. The Committee shall determine the prices, if any,
at which shares of restricted stock shall be issued to a
Participant, which may vary from time to time and among
Participants and which may be below the fair market value of
such shares of Stock at the date of sale and which may be
zero.
(iii) Restrictions. All shares of restricted stock issued hereunder
shall be subject to such restrictions as the Committee may
determine, including, without limitation any or all of the
following:
(a) a prohibition against the sale, transfer, pledge or
other encumbrance of the shares of restricted stock,
such prohibition to lapse (i) at such time or times
as the Committee shall determine (whether in annual
or more frequent installments, at the time of the
death, disability or retirement of the holder of
such shares, or otherwise) or (ii) upon written
certification by the Committee of the attainment of
certain performance measurements;
(b) a requirement that the holder of shares of restricted
stock forfeit, or (in the case of shares sold to a
Participant) resell back to the Company at his cost,
all or a part of such shares in the event of
termination of the holder's employment during any
period in which such shares are subject to
restrictions; or
(c) a prohibition against employment of the holder of
such restricted stock by any competitor of the
Company or its affiliates, or against such holder's
dissemination of any secret or confidential
information belonging to the Company or a subsidiary
of the Company.
Shares of restricted stock shall be registered in the name of the
Participant and deposited, together with a stock power endorsed in
blank, with the Company. Each such certificate shall bear a legend in
substantially the following form:
"The transferability of this certificate and the shares of
Common Stock represented by it are subject to the terms and
conditions (including conditions of forfeiture) contained in
the 1996 Stock Incentive Plan of the Company, and an agreement
entered into between the registered owner and the Company. A
copy of the Plan and agreement is on file in the office of the
Secretary of the Company."
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<PAGE> 9
At the end of any time period during which the shares of restricted
stock are subject to forfeiture and restrictions on transfer or upon
the attainment of certain performance measurements, such shares will
be delivered free of all restrictions to the Participant or to the
Participant's legal representative, beneficiary or heir.
Subject to the terms and conditions of the Plan, each Participant
receiving restricted stock shall have all the rights of a stockholder
with respect to shares of stock during any period in which such shares
are subject to forfeiture and restrictions on transfer, including
without limitation, the right to vote such shares. By accepting a
stock award or a restricted stock grant, the Participant agrees to
remit to the Company when due any federal and state income and
employment taxes required to be withheld by the Company and the
Participant may elect to have the Company accept or retain Stock as
payment of such tax liability. Dividends paid in cash or property
other than Stock with respect to shares of restricted stock shall be
paid to the Participant currently or, at the election of the
Participant, be reinvested by the Participant under the Company's
Dividend Reinvestment Plan. Shares purchased with reinvested dividends
shall not be restricted.
18. TERMINATION AND AMENDMENT OF THE PLAN. The Board of Directors of the
Company may amend, terminate or suspend the Plan at any time, in its
sole and absolute discretion; provided, however, no amendment that
would (a) materially increase the number of shares of Stock that may
be issued under the Plan, (b) materially modify the requirements as to
eligibility for participation in the Plan, or (c) otherwise materially
increase the benefits accruing to Participants under the Plan shall be
made without the approval of the Company's stockholders.
19. WRITTEN AGREEMENT. Each Option or restricted stock granted hereunder
shall be embodied in a written agreement, which shall be subject to
the terms and conditions prescribed above and shall be signed by the
Participant and by the Chairman of the Board, Chief Executive Officer,
the Vice Chairman, the President or any Vice President of the Company
for and in the name and on behalf of the Company. Stock awards
granted hereunder may be embodied in such a written agreement. Such
an Option, stock award or restricted stock agreement shall contain
such other provisions as the Committee in its discretion shall deem
advisable.
20. INDEMNIFICATION OF COMMITTEE. The Company shall indemnify each
present and future member of the Committee against, and each member of
the Committee shall be entitled without further act on his part to
indemnity from the Company for, all expenses (including the amount of
judgments and the amount of approved settlements made with a view to
the curtailment of costs of litigation, other than amounts paid to the
Company itself) reasonably incurred by him in connection with or
arising out of any action, suit or proceeding in which he may be
involved by reason of his being or having been a member of the
Committee, whether or not he continues to be a member of the Committee
at the time of incurring such expenses; provided, however, that such
indemnity shall not include any expenses incurred by any such member
of the Committee (a) in respect of matters as to which he shall be
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<PAGE> 10
finally adjudged in any such action, suit or proceeding to have been
guilty of gross negligence or willful misconduct in the performance of
his duty as a member of the Committee, or (b) in respect of any matter
in which any settlement is effected, to an amount in excess of the
amount approved by the Company on the advice of its legal counsel; and
provided further, that no right of indemnification under the
provisions set forth herein shall be available to or enforceable by
any such member of the Committee unless, within sixty (60) days after
institution of any such action, suit or proceeding, he shall have
offered the Company, in writing, the opportunity to handle and defend
same at its own expense. The foregoing right of indemnification shall
inure to the benefit of the heirs, executors or administrators of each
such member of the Committee and shall be in addition to all other
rights to which such member of the Committee may be entitled as a
matter of law, contract, or otherwise.
21. ADOPTION, APPROVAL AND EFFECTIVE DATE OF PLAN. The Plan shall be
considered adopted and shall become effective on the date the Plan is
approved by the Board of Directors of the Company; provided, however,
that the Plan and any grants of Options, stock awards or restricted
stock grants thereunder, shall be void, if the stockholders of the
Company shall not have approved adoption of the Plan within twelve
months after such effective date.
22. GOVERNING LAW. This Plan and all determinations made and actions
taken pursuant hereto shall be governed by the laws of the State of
Delaware, without reference to principles of conflict of laws, and
shall be construed accordingly.
23. COMPLIANCE WITH SEC REGULATIONS. It is the Company's intent that all
transactions under the Plan comply in all respects with Rule 16b-3,
and any successor rule pursuant thereto. If any provision of this
Plan is later found not to be in compliance with the Rule, the
provision shall be deemed null and void. All grants of Options and
Stock and all exercises of Options under this Plan shall be executed
in accordance with the requirements of Section 16 of the Securities
Exchange Act of 1934, as amended, and any regulations promulgated
thereunder.
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<PAGE> 1
EXHIBIT 4.4
BROWNING FERRIS INDUSTRIES, INC.
1996 STOCK INCENTIVE PLAN AGREEMENT
NON-QUALIFIED STOCK OPTION
Under the terms and conditions of the 1996 Stock Incentive Plan (the "Plan") of
Browning-Ferris Industries, Inc., a Delaware corporation (the "Company"), a
copy of which is attached hereto and incorporated herein by reference, the
Company hereby grants to , effective on the Date of Grant
indicated below, the option to purchase shares of the Company's
Common Stock, $.16-2/3 par value (the "Common Stock"), at the price of
$ per share, subject to adjustment as provided in the Plan.
This option shall be a non-qualified stock option for a term commencing on the
Date of Grant and ending . Further, this option shall terminate
on the earlier of such expiration date or a period of thirty (30) days
following the severance of the employment or the affiliate relationship, as the
case may be, between the Company and the optionee for any reason, with or
without cause, other than death or retirement in the case of an employee as set
forth in more detail in the Plan. During the thirty day period following the
severance of the employment or affiliate relationship, the optionee may
exercise the option, but only with respect to the number of shares of Common
Stock that could have been acquired under the option on the date of severance
of the employment or affiliate relationship.
This option shall not be exercisable to any extent by the optionee unless and
until the Plan is approved by the Company's stockholders, a registration
statement with respect to the Common Stock covered by the Plan shall be
effective under the Securities Act of 1933, as amended, and the Common Stock is
listed for issuance with the various stock exchanges. Subject to the
satisfaction of the foregoing conditions precedent, this option shall be
exercisable during each yearly period following the Date of Grant to the extent
of the cumulative percentage of the shares covered by this option as indicated
in the following table:
<TABLE>
<CAPTION>
Yearly Period Following Cumulative Percentage
Date of Grant of Options Exercisable
- --------------------- ----------------------
<S> <C>
First 0%
Second 25%
Third 50%
Fourth 75%
Thereafter 100%
</TABLE>
The optionee hereby accepts and agrees to be bound by all the terms and
conditions of the Plan.
BROWNING-FERRIS INDUSTRIES, INC.
Date: By:
----------------------- --------------------------------
(Date of Grant) Gerald K. Burger
Vice President and Secretary
ACCEPTED: Optionee's Permanent Mailing Address:
(Please print or type)
- -------------------------------------- -----------------------------------
(Please print or type full name)
-----------------------------------
- -------------------------------------- - -
Full Signature of Optionee -----------------------------------
OPTIONEE SOCIAL SECURITY NUMBER
<PAGE> 1
[Browning-Ferris Industries, Inc. Letterhead]
EXHIBIT 5.1
October 16, 1997
Browning-Ferris Industries, Inc.
757 N. Eldridge
Houston, Texas 77079
Gentlemen:
I have acted as counsel for Browning-Ferris Industries, Inc., a
Delaware corporation (the "Company"), in connection with its filing with the
Securities and Exchange Commission of a Registration Statement on Form S-8 (the
"Registration Statement") with respect to the registration under the Securities
Act of 1933, as amended, of 10,000,000 shares of the Company's common stock,
$.16 2/3 par value per share, including the preferred stock purchase rights
associated therewith (collectively, the "Shares"), which are to be offered upon
the terms and subject to the conditions set forth in the Company's 1996 Stock
Incentive Plan (the "Plan").
I have examined (i) the Restated Certificate of Incorporation and
By-Laws of the Company, each as amended to date, (ii) the Plan, (iii) the
Registration Statement, and (iv) such certificates, statutes and other
instruments and documents as we considered appropriate for purposes of the
opinions hereafter expressed.
In connection with this opinion, I have assumed the authenticity and
completeness of all records, certificates and other instruments submitted to me
as originals, the conformity to original documents of all records,
certificates, and other instruments submitted to me as copies, the authenticity
and completeness of the originals of those records, certificates and other
instruments submitted to me as copies and the correctness of all statements of
fact contained in all records, certificates and other instruments that I have
examined.
Based upon and subject to the foregoing, I am of the opinion that the
Shares have been duly authorized and, when issued in accordance with the terms
of the Plan will be validly issued, fully paid and nonassessable.
I hereby consent to the filing of this opinion as an exhibit to the
Registration Statement.
Very truly yours,
/s/ Allan R. Conge
<PAGE> 1
Exhibit 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this Registration Statement on Form S-8 of our report dated
December 4, 1996, included in Browning-Ferris Industries, Inc.'s Annual Report
on Form 10-K for the year ended September 30, 1996, and to all references to
our Firm included in this Registration Statement.
ARTHUR ANDERSEN LLP
Houston, Texas
October 16, 1997
