SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM 8-A/A
AMENDMENT TO A REGISTRATION STATEMENT
ON FORM 8-A
Pursuant to Section 12(b) or (g)
of the Securities Exchange Act of 1934
BROWNING-FERRIS INDUSTRIES, INC.
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(Exact Name of Registrant as Specified in Charter)
DELAWARE 1-6805 74-1673682
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(State or Other (Commission (IRS Employer
Jurisdiction File Number) Identification
of Incorporation) No.)
757 NORTH ELDRIDGE, HOUSTON, TEXAS 77079
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(Address of Principal Executive Offices) (Zip Code)
(281) 870-8100
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(Registrant's telephone number, including area code)
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INFORMATION REQUIRED IN REGISTRATION STATEMENT
Item 1. Amendment to Description of Registrant's Securities to be Registered:
The Board of Directors of Browning-Ferris Industries, Inc. (the
"Company") declared the distribution of one Right for each outstanding share of
Common Stock on June 3, 1998 in accordance with the Rights Agreement (the
"Rights Agreement") adopted on the same day between the Company and First
Chicago Trust Company of New York (the "Rights Agent"). As of March 7, 1999, the
Company and the Rights Agent entered into the first amendment to the Rights
Agreement (the "Amendment"). The Amendment was adopted in connection with an
Agreement and Plan of Merger between the Company, Allied Waste Industries, Inc.,
a Delaware corporation ("Allied"), and AWIN I Acquisition Corporation, a
Delaware corporation and wholly owned subsidiary of Allied ("Merger Sub") dated
March 7, 1999 (the "Merger Agreement), pursuant to which Merger Sub, or any
other direct or indirect subsidiary designated by Allied, will be merged with
and into the Company (the "Merger"). The Amendment provides that the execution
and delivery of the Merger Agreement and the consummation of transactions
contemplated thereby shall not cause (i) Allied, Merger Sub or affiliates or
associates of Allied to be deemed Acquiring Persons, (ii) the occurrence of a
Distribution Date, or (iii) activation of "flip over" rights under Section 13 of
the Rights Agreement. The Amendment also provides that the Rights will expire
immediately prior to the consummation of the Merger.
The following is a description of the Company's Rights Agreement, as
amended.
On June 3, 1998, the Board of Directors of Browning-Ferris Industries,
Inc. (the "Company") declared a dividend distribution of one Right for each
outstanding share of Common Stock, par value $.16-2/3 per share, of the Company
("Common Stock"). The distribution was paid to the stockholders of record at the
close of business on June 15, 1998. Each Right entitles the registered holder to
purchase from the Company one one-hundredth of a share of a series of the
Company's preferred stock designated as Series B Junior Participating Preferred
Stock ("Preferred Stock") at a price of $125.00 per one one-hundredth of a share
(the "Purchase Price"), subject to adjustment. The description and terms of the
Rights are set forth in a Rights Agreement (the "Rights Agreement") between the
Company and First Chicago Trust Company of New York, as Rights Agent (the
"Rights Agent") dated June 3, 1998, as amended by the first amendment to the
Rights Agreement dated March 7, 1999.
Initially, the Rights will be attached to all Common Stock certificates
representing shares then outstanding, and no separate Rights Certificates will
be distributed. Subject to certain exceptions specified in the Rights Agreement,
the Rights will separate from the Common Stock and a Distribution Date will
occur upon the earlier of (i) ten business days following a public announcement
that a person or group of affiliated or associated persons (an "Acquiring
Person") has acquired beneficial ownership of 20% or more of the outstanding
shares of Common Stock (the "Stock Acquisition Date"), other than as a result of
repurchases of stock by the Company or (ii) ten business days (or such later
date as the Board shall determine) following the commencement of a tender offer
or exchange offer that would result in a person or group
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becoming an Acquiring Person. The Rights Agreement provides that none of Allied
Waste Industries, Inc., a Delaware corporation ("Allied"), AWIN I Acquisition
Corporation, a Delaware corporation and a wholly owned subsidiary of Allied
("Merger Sub"), nor any affiliate or associate of Allied shall be deemed an
Acquiring Person for entering into the Agreement and Plan of Merger between
Allied, Merger Sub and the Company dated March 7, 1999 (the "Merger Agreement")
or for taking actions contemplated in the Merger Agreement.
Until the Distribution Date, (i) the Rights will be evidenced by the
Common Stock certificates and will be transferred with and only with such Common
Stock certificates, (ii) new Common Stock certificates issued after the Record
Date will contain a notation incorporating the Rights Agreement by reference and
(iii) the surrender for transfer of any certificates for Common Stock
outstanding will also constitute the transfer of the Rights associated with the
Common Stock represented by such certificate. Pursuant to the Rights Agreement,
the Company reserves the right to require prior to the occurrence of a
Triggering Event (as defined below) that, upon any exercise of Rights, a number
of Rights be exercised so that only whole shares of Preferred Stock will be
issued.
The Rights are not exercisable until the Distribution Date and will
expire: 1) immediately prior to the merger of Merger Sub, or any direct or
indirect subsidiary of Allied, with and into the Company (the "Merger"), 2) upon
redemption or exchange of the Rights by the Company as described below, or 3) at
5:00 P.M. (New York City time) on June 15, 2008 (unless such date is extended),
whichever is earlier (the "Expiration Date").
As soon as practicable after the Distribution Date, Rights Certificates
will be mailed to holders of record of the Common Stock as of the close of
business on the Distribution Date and, thereafter, the separate Rights
Certificates alone will represent the Rights. Except as otherwise determined by
the Board of Directors, only shares of Common Stock issued prior to the
Distribution Date will be issued with Rights.
In the event that a Person becomes an Acquiring Person, except pursuant
to an offer for all outstanding shares of Common Stock which the independent
directors determine to be fair and not inadequate and to otherwise be in the
best interests of the Company and its stockholders, after receiving advice from
one or more investment banking firms (a "Qualified Offer"), each holder of a
Right will thereafter have the right to receive, upon exercise, Common Stock
(or, in certain circumstances, cash, property or other securities of the
Company) having a value equal to two times the exercise price of the Right.
Notwithstanding any of the foregoing, following the occurrence of the event set
forth in this paragraph, all Rights that are, or (under certain circumstances
specified in the Rights Agreement) were, beneficially owned by any Acquiring
Person will be null and void. However, Rights are not exercisable following the
occurrence of the event set forth above until such time as the Rights are no
longer redeemable by the Company as set forth below.
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For example, at an exercise price of $125.00 per Right, each Right not
owned by an Acquiring Person (or by certain related parties) following an event
set forth in the preceding paragraph would entitle its holder to purchase
$250.00 worth of Common Stock (or other consideration, as noted above) for
$125.00. Assuming that the Common Stock had a per share value of $25.00 at such
time, the holder of each valid Right would be entitled to purchase ten shares of
Common Stock for $125.00.
In the event that, on or at any time after a Stock Acquisition Date, the
Company (i) engages in a merger or other business combination transaction in
which the Company is not the surviving corporation (other than with an entity
which acquired the shares pursuant to a Qualified Offer), (ii) the Company
engages in a merger or other business combination transaction in which the
Company is the surviving corporation and any shares of the Company's Common
Stock are changed into or exchanged for other securities or assets or (iii) 50%
or more of the assets, cash flow or earning power of the Company and its
subsidiaries (taken as a whole) are sold or transferred, but in all events not
including the Merger, then, and in each such case, except the Merger, each
holder of a Right (except as noted below) shall thereafter have the right to
receive, upon the exercise thereof at the then current exercise price of the
Right, that number of shares of common stock of the acquiring company which at
the time of such transaction would have a market value (determined as provided
in the Rights Agreement) of two times the exercise price of the Right. The
events specified in this paragraph and in the second preceding paragraph are
referred to as the "Triggering Events."
Up to and including the tenth business day after a Stock Acquisition
Date, the Company may redeem the rights in whole, but not in part, at a price of
$.01 per Right (payable in cash, Common Stock or other consideration deemed
appropriate by the Board of Directors). Promptly upon the action of the Board of
Directors of the Company electing to redeem the Rights, the Rights will
terminate and the only right of the holders of Rights will be to receive the
$.01 Redemption Price.
At any time after a person becomes an Acquiring Person and prior to the
acquisition by such person or group of fifty percent (50%) or more of the
outstanding Common Stock, the Board may exchange the Rights (other than Rights
owned by such person or group which have become void), in whole or in part, for
Common Stock at an exchange ratio of one share of Common Stock, or one
one-hundredth of a share of Preferred Stock (or of a share of a class or series
of the Company's preferred stock having equivalent rights, preferences and
privileges), per Right (subject to adjustment).
Until a Right is exercised, the holder thereof, as such, will have no
rights as a stockholder of the Company, including, without limitation, the right
to vote or to receive dividends. While the distribution of the Rights will not
be taxable to stockholders or to the Company, stockholders may, depending upon
the circumstances, recognize taxable income in the event that the Rights become
exercisable for Common Stock (or other consideration) of the
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Company or for common stock of the acquiring company or in the event of the
redemption of the Rights as set forth above.
Any of the provisions of the Rights Agreement may be amended by the
Board of Directors of the Company prior to the Distribution Date. After the
Distribution Date, the provisions of the Rights Agreement may be amended by the
Board in order to cure any ambiguity, to make changes which do not adversely
affect the interests of holders of Rights, or to shorten or lengthen any time
period under the Rights Agreement. The foregoing notwithstanding, no amendment
may be made at such time as the Rights are not redeemable.
Each share of Common Stock of the Company outstanding at the close of
business on June 15, 1998 received one Right, and each share of Common Stock
issued or transferred by the Company since then has received one Right. So long
as the Rights are attached to the Common Stock, one additional Right (as such
number may be adjusted pursuant to the provisions of the Rights Agreement) shall
be deemed to be delivered for each share of Common Stock issued or transferred
by the Company in the future. In addition, following the Distribution Date and
prior to the expiration or redemption of the Rights, the Company may issue
Rights when it issues Common Stock only if the Board deems it to be necessary or
appropriate, or in connection with the issuance of shares of Common Stock
pursuant to the exercise of stock options or under employee plans or upon the
exercise, conversion or exchange of certain securities of the Company. Four
million shares of Preferred Stock are initially reserved for issuance upon
exercise of the Rights.
The Rights may have certain anti-takeover effects. The Rights will cause
substantial dilution to a person or group that attempts to acquire the Company
in a manner which causes the Rights to become discount Rights unless the offer
is conditional on a substantial number of Rights being acquired. The Rights,
however, should not affect any prospective offeror willing to make an offer at a
price that is fair and not inadequate and otherwise in the best interest of the
Company and its stockholders. The Rights should not interfere with any merger or
other business combination approved by the Board since the Board may, at its
option, at any time until ten days following the Stock Acquisition Date redeem
all but not less than all the then outstanding Rights at the Redemption Price.
In addition, certain provisions of the Company's Restated Certificate of
Incorporation may have anti-takeover effects. The Restated Certificate of
Incorporation provides, among other things, (i) for a classified Board of
Directors divided into three classes, (ii) that a Business Combination (as
defined) with a stockholder holding 10% or more of the Voting Shares (as
defined) be approved by a majority of unaffiliated stockholders and 80% of
issued and outstanding Voting Shares unless such Business Combination is
approved by a majority of the Continuing Directors (as defined) and certain
minimum price and other criteria are satisfied, (iii) that only the Board of
Directors may call for a special meeting of stockholders, and (iv) stockholder
action only at a stockholders' meeting and not by written consent. In addition,
the By-laws of the Company provide, among other things, that stockholders
wishing to nominate a
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director at an annual meeting give advance written notice of such nomination not
later than 90 days in advance of the date of the Company's proxy statement
released to stockholders in connection with the previous year's annual meeting.
A copy of the Rights Agreement, dated as of June 3, 1998, between the
Company and First Chicago Trust Company of New York, as Rights Agent, specifying
the terms of the Rights, was filed with the Securities and Exchange Commission
on June 12, 1998 in connection with the registration of the preferred stock
purchase rights issued pursuant to the Rights Agreement under Section 12(b) of
the Act. A copy of the first amendment to the Rights Agreement, dated as of
March 7, 1999, is filed herewith (the "Amendment"). The foregoing description of
the Rights is qualified in its entirety by reference to the Rights Agreement and
Amendment.
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Item 2. Exhibits.
The following items are filed as exhibits to the Registration Statement:
Exhibit No. Description of Document Location
1.1 Rights Agreement, dated as of June 3, Original filing on
1998, between Browning-Ferris Form 8-A
Industries, Inc. and First Chicago
Trust Company of New York, as Rights
Agent, including the form of
Rights Certificate as Exhibit B and
the Summary of Rights to Purchase
Preferred Stock as Exhibit C.
1.2 Amendment No. 1, dated as of March 7, Filed herewith
1999, to the Rights Agreement between
Browning-Ferris Industries, Inc. and
First Chicago Trust Company of New York
dated June 3, 1998.
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SIGNATURE
Pursuant to the requirements of Section 12 of the Securities Exchange
Act of 1934, the Registrant has duly caused this registration statement to be
signed on its behalf by the undersigned, thereto duly authorized.
BROWNING-FERRIS INDUSTRIES,
INC.
Dated: March 16, 1999 By: /s/ Edward C. Norwood
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Edward C. Norwood
Vice President and Secretary
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EXHIBIT INDEX
Exhibit Description
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1.1 Rights Agreements, dated as of June 3, between Browning-Ferris
Industries, Inc. and First Chicago Trust Company of New York, as
Rights Agent, including the form of Rights Certificate as Exhibit B
and the Summary of Rights to Purchase Preferred Stock as Exhibit C
(incorporated by reference from the Company's Registration
Statement on Form 8-A filed on June 12, 1998, File No. 001-06805).
1.2 Amendment No. 1, dated as of March 7, 1999, to the Rights
Agreement between Browning-Ferris Industries, Inc. and First
Chicago Trust Company of New York dated June 3, 1998.
Exhibit 1.2
AMENDMENT NO. 1 TO RIGHTS AGREEMENT
AMENDMENT No. 1 (the "Amendment"), dated as of March 7, 1999, to the
Rights Agreement, dated as of June 3, 1998 (the "Rights Agreement"), between
Browning-Ferris Industries, Inc., a Delaware corporation (the "Company"), and
First Chicago Trust Company of New York, a New York corporation (the "Rights
Agent"), as Rights Agent.
Recitals
A. The Company and the Rights Agent have heretofore executed and
entered into the Rights Agreement.
B. Allied Waste Industries, Inc., a Delaware corporation ("Parent"),
AWIN I Acquisition Corporation, a Delaware corporation and an indirect wholly
owned subsidiary of Parent ("Merger Sub"), and the Company have proposed to
enter into an Agreement and Plan of Merger (the "Merger Agreement") pursuant to
which Merger Sub, or any other direct or indirect subsidiary of Allied which
Allied designates, will be merged with and into the Company, with the Company as
the surviving corporation (the "Merger"), all on the terms and subject to the
conditions set forth in the Merger Agreement.
C. The Board of Directors has determined that it is in the best
interests of the Company and its stockholders to amend the Rights Agreement to
exempt the Merger and the Merger Agreement, and all of the transactions
contemplated thereby, in accordance with the terms thereof, from application of
the Rights Agreement.
D. Pursuant to Section 27 of the Rights Agreement, therefore, the
Board of Directors of the Company hereby resolves that an amendment to the
Rights Agreement as set forth herein is necessary and desirable to reflect the
foregoing, and the Company and the Rights Agent desire to evidence such
amendment in writing.
E. All acts and things necessary to make this Amendment a valid
agreement, enforceable according to its terms have been done and performed, and
the execution and delivery of this Amendment by the Company and the Rights Agent
have been in all respects duly authorized by the Company and the Rights Agent.
In consideration of the foregoing and the mutual agreements set
forth herein, the Company and the Rights Agent hereby amend the Rights Agreement
as follows:
1. Section 1(f) of the Rights Agreement is modified and amended to
read in its entirety as follows:
"Acquiring Person" shall mean any Person who or which, together with
all Affiliates and Associates of such Person, shall be the
Beneficial Owner of a Substantial Block, but shall not include (i)
the Company, (ii) any Subsidiary of the Company, (iii) any
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employee benefit plan or employee stock plan of the Company, or of
any Subsidiary of the Company, or any Person organized, appointed,
established or holding Voting Stock by, for or pursuant to, the
terms of any such plan, (iv) any Person who becomes the Beneficial
Owner of a Substantial Block as a result of a reduction in the
number of shares of Voting Stock outstanding due to the repurchase
of shares of Voting Stock by the Company unless and until such
Person, after becoming aware that such Person has become the
Beneficial Owner of a Substantial Block of the then outstanding
shares of Voting Stock, acquires beneficial ownership of additional
shares of Voting Stock representing one percent (1%) or more of the
shares of Voting Stock then outstanding, or (v) Allied Waste
Industries, Inc., a Delaware corporation ("Allied"), AWIN I
Acquisition Corporation, a Delaware corporation and an indirect
wholly owned subsidiary of Allied ("Merger Sub"), or any Affiliate
or Associate of Allied solely to the extent that each may, without
being deemed an Acquiring Person, execute and deliver the Agreement
and Plan of Merger, dated as of March 7, 1999, by and among Allied,
Merger Sub and the Company, as it may be amended or supplemented
from time to time (the "Merger Agreement"), and consummate
transactions contemplated thereby.
2. The first paragraph of Section 3 of the Rights Agreement is
amended by inserting the following sentence after the first sentence thereof:
Notwithstanding the foregoing, no Distribution Date shall ensue as a
result of the execution and delivery of the Merger Agreement or
consummation of transactions contemplated thereby.
3. The first sentence of Section 7 of the Rights Agreement is
modified and amended to read in its entirety as follows:
Subject to Section 7(e), at any time after the Distribution Date,
the registered holder of any Right Certificate may exercise the
Rights evidenced thereby (except as otherwise provided herein
including, without limitation, the restrictions on exercisability
set forth in Section 9, Section 11(a)(iii) and Section 23) in whole
or in part upon surrender of the Right Certificate, with the form of
election to purchase on the reverse side thereof duly executed, to
the Rights Agent at the principal stock transfer office of the
Rights Agent, together with payment of the Purchase Price for each
one one-hundredth of a share of Preferred Stock (or other
securities, cash or other assets, as the case may be) as to which
the Rights are exercised, at or prior to the earlier of (i) the
Close of Business on June 15, 2008 or such later date as may be
established by the Board of Directors prior to the expiration of the
Rights (such date being hereinafter referred to as the "Final
Expiration Date"), (ii) the time at which the Rights are redeemed or
exchanged as provided in Section 23 and Section 24, or (iii)
immediately prior to the consummation of the merger of Merger Sub,
or any other direct or indirect subsidiary of Allied, with and into
the Company as contemplated by and in
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accordance with the Merger Agreement (the "Merger") (the earlier of
(i), (ii) and (iii) being herein referred to as the "Expiration
Date").
4. Section 13 of the Rights Agreement is amended by inserting the
following sentence at the end of such Section:
Notwithstanding anything in this Agreement to the contrary, this
Section 13 shall not apply to the Merger.
5. This Amendment shall become effective as of the date of the
Merger Agreement. If the Merger Agreement is terminated without the Effective
Time (as defined in the Merger Agreement) having occurred, this Amendment shall
be null and void.
6. This Amendment to the Rights Agreement shall be governed by and
construed in accordance with the laws of the State of Delaware and for all
purposes shall be governed by and construed in accordance with the laws of such
State applicable to contracts to be made and performed entirely within such
State.
7. This Amendment to the Rights Agreement may be executed in any
number of counterparts, each of which shall be an original, but such
counterparts shall together constitute one and the same instrument. Terms not
defined herein shall, unless the context otherwise requires, have the meanings
assigned to such terms in the Rights Agreement.
8. In all respects not inconsistent with the terms and provisions of
this Amendment to the Rights Agreement, the Rights Agreement is hereby ratified,
adopted, approved and confirmed. In executing and delivering this Amendment, the
Rights Agent shall be entitled to all the privileges and immunities afforded to
the Rights Agent under the terms and conditions of the Rights Agreement.
9. If any term, provision, covenant or restriction of this Amendment
to the Rights Agreement is held by a court of competent jurisdiction or other
authority to be invalid, void or unenforceable, the remainder of the terms,
provisions, covenants and restrictions of this Amendment to the Rights
Agreement, and of the Rights Agreement, shall remain in full force and effect
and shall in no way be affected, impaired or invalidated.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed and attested, all as of the date and year first above written.
Attest: BROWNING-FERRIS INDUSTRIES, INC.
By: /s/ Eileen Schuler By: /s/ Jeffrey E. Curtiss
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Eileen Schuler Jeffrey E. Curtiss
Assistant Secretary Senior Vice President and Chief
Financial Officer
Attest: FIRST CHICAGO TRUST COMPANY OF
NEW YORK
By: /s/ David Cohn By: /s/ Joanne Gorostiola
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David Cohn Joanne Gorostiola
Customer Service Officer Assistant Vice President
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