<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JANUARY 31, 1997.
REGISTRATION NO. 33-______
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
______________________________
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
______________________________
ALLWASTE, INC.
(Exact name of registrant as specified in its charter)
<TABLE>
<S> <C> <C>
DELAWARE 4212 74-2427167
(State or other jurisdiction (Primary Standard Industrial (I.R.S. Employer
of incorporation or organization) Classification Code Number) Identification Number)
</TABLE>
5151 SAN FELIPE, SUITE 1600
HOUSTON, TEXAS 77056
(713) 623-8777
(Address, including zip code, and telephone number, including area code, of
registrant's principal executive
offices)
TARGET 2000: ONE, TWO, FOUR PLAN
ALLWASTE, INC. NON-EMPLOYEE DIRECTOR RESTRICTED STOCK PLAN
ALLWASTE, INC. INTERIM DEFERRED COMPENSATION PLAN
ALLWASTE, INC. DEFERRED COMPENSATION PLAN
(Full Title of Plan)
WILLIAM L. FIEDLER
ALLWASTE, INC.
VICE PRESIDENT, GENERAL COUNSEL, AND SECRETARY
5151 SAN FELIPE, SUITE 1600
HOUSTON, TEXAS 77056
(713) 623-8777
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
==================================================================================================================
PROPOSED MAXIMUM PROPOSED
TITLE OF AMOUNT TO OFFERING MAXIMUM AGGREGATE AMOUNT OF
SECURITIES TO BE REGISTERED BE REGISTERED PRICE PER SHARE OFFERING PRICE REGISTRATION FEE
- ------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, par value $.01 per share 594,395 (1) $5.25(2) $3,120,574 $946
- ------------------------------------------------------------------------------------------------------------------
Deferred Compensation Obligations(3) $500,000 (4) 100% $500,000 $152
- ------------------------------------------------------------------------------------------------------------------
TOTAL $3,620,574 $1,098
==================================================================================================================
</TABLE>
(1) Of these 594,395 shares, (i) 3,460 shares of Allwaste, Inc. (the
"Company") common stock, par value $.01 per share (the "Common
Stock"), will be issued as a restricted stock grant to an employee
pursuant to the Company's Target 2000: One, Two, Four Plan (the
"Target 2000 Plan"); (ii) up to 500,000 shares will be issued as
restricted stock grants under the Company's Non-Employee Director
Restricted Stock Plan (the "Director Plan"); and (iii) 90,935 shares
will be issued as restricted stock grants under the Company's Interim
Deferred Compensation Plan (the "Interim Deferred Plan") (the shares
to be issued under each of the Target 2000 Plan, the Director Plan and
the Interim Deferred Plan are referred to collectively as the
"Shares"). The Shares will be issued as treasury shares. The Company
currently has 3,588,134 shares of Common Stock in treasury.
(2) Pursuant to Rule 457(c), the registration fee is calculated on the
basis of the average of the high and low per share sale prices of the
Common Stock, as reported by the New York Stock Exchange, on January
28, 1997, or $5.25 per share. Pursuant to Rule 457(h), the
registration fee is calculated with respect to the maximum number of
the registrant's securities issuable under each of the Target 2000
Plan, the Director Plan and the Interim Deferred Plan and on the
principal amount of the Company's deferred compensation obligations
under its Deferred Compensation Plan.
(3) The obligations of the Company to pay deferred compensation in the
future in accordance with the terms of the Allwaste, Inc. Deferred
Compensation Plan (the "Deferred Plan") for a select group of
employees.
(4) The amount to be registered is estimated solely for purposes of
calculating the registration fee.
<PAGE> 2
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The contents of the following documents filed by Allwaste, Inc., a
Delaware corporation (the "Company"), with the Securities and Exchange
Commission (the "Commission") are incorporated into this registration statement
on Form S-8 (the "Registration Statement") by reference:
(a) The Company's annual report on Form 10-K for the fiscal year
ended August 31, 1996, as filed with the Commission under the
Securities Exchange Act of 1934, as amended (the "Exchange
Act");
(b) All other reports filed pursuant to Section 13(a) or 15(d) of
the Exchange Act since August 31, 1996, specifically, the
Company's Quarterly Report on Form 10-Q for the fiscal quarter
ended November 30, 1996; and
(c) The description of the Company's Common Stock in the Company's
Registration Statement on Form 8-A (No. 1-11008), filed with
the Commission on December 4, 1986 under the Exchange Act, and
any amendments or reports filed for the purpose of updating
such description.
All documents filed by the Company with the Commission pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act subsequent to the
filing date of this Registration Statement and prior to the filing of a
post-effective amendment to this Registration Statement which indicates that
all securities offered have been sold or which deregisters all securities then
remaining unsold shall be deemed to be incorporated by reference in this
Registration Statement and to be a part hereof from the date of filing such
documents. Any statement contained herein or in any document incorporated or
deemed to be incorporated by reference herein shall be deemed to be modified or
superseded for purposes of this Registration Statement to the extent that a
statement contained in any other subsequently-filed document which also is or
is deemed to be incorporated by reference herein modifies or supersedes such
statement. Any such statement so modified or superseded shall not be deemed to
constitute a part of this Registration Statement, except as so modified or
superseded. The Company will provide, without charge, each participant in the
Target 2000 Plan, the Director Plan and the Interim Deferred Plan, on written
or oral request of such person directed to the Secretary of the Company at the
Company's executive offices, 5151 San Felipe, Suite 1600, Houston, Texas 77056,
telephone number (713) 623-8777, a copy (without exhibits, unless such exhibits
are specifically incorporated by reference) of any or all of the documents
incorporated by reference pursuant to this Item 3.
ITEM 4. DESCRIPTION OF SECURITIES.
The obligations of the Company to pay deferred compensation (the
"Deferred Compensation Obligations") registered hereunder are unsecured
obligations of the Company to pay deferred compensation in the future in
accordance with the terms of the Deferred Plan and the Deferred Compensation
Plan Trust
-2-
<PAGE> 3
Agreement dated effective February 15, 1997, between the Company and Texas
Commerce Bank, National Association, as Trustee (the "Trust Agreement"), which
are filed as Exhibits 4.1 and 4.2 to this Registration Statement. These
exhibits set forth a description of the Deferred Compensation Obligations and
are incorporated herein by reference in their entirety in response to this Item
4, pursuant to Rule 411(b)(3) under the Securities Act of 1933, as amended (the
"Act"). An aggregate principal amount of $500,000 is being registered under
this Registration Statement. Further amounts may be registered as new or
existing Plan participants elect to defer portions of their compensation in
subsequent years.
No participant under the Deferred Plan shall have any preferred claim
to, or any beneficial ownership interest in, any assets which are subject to
the Trust established by the Trust Agreement (the "Trust"). All such assets
are subject to the claims of creditors of the Company until they are paid out
of the Trust to the participant in accordance with the terms of the Deferred
Plan. The Deferred Plan provides that payment of all Deferred Compensation
Obligations of the Company's subsidiaries under the Deferred Plan is guaranteed
by the Company, and that any such payment by the Company shall be made directly
and not through the Trust.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 145 of the Delaware General Corporation Law permits a
corporation to indemnify any person who was or is a party or is threatened to
be made a party to any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or investigative, by reason
of the fact that he is or was a director, officer, employee or agent of the
corporation or is or was serving at the request of the corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise, against expenses, judgments, fines and
amounts paid in settlement actually and reasonably incurred by him in
connection with such action.
In an action brought to obtain a judgment in the corporation's favor,
whether by the corporation itself or derivatively by a stockholder, the
corporation may only indemnify for expenses, including attorneys' fees,
actually and reasonably incurred in connection with the defense or settlement
of such action, and the corporation may not indemnify for amounts paid in
satisfaction of a judgment or in settlement of the claim. In any such action,
no indemnification may be paid in respect of any claim, issue or matter as to
which such person shall have been adjudged liable to the corporation except as
otherwise approved by the Delaware Court of Chancery or the court in which the
claim was brought. In any other type of proceeding, the indemnification may
extend to judgments, fines and amounts paid in settlement, actually and
reasonably incurred in connection with such other proceeding, as well as to
expenses.
The statute does not permit indemnification unless the person seeking
indemnification has acted in good faith and in a manner be reasonably believed
to be in, or not opposed to, the best interests of the corporation and, in the
case of criminal actions or proceedings, the person had no reasonable cause to
believe his conduct was unlawful. The statute contains additional limitations
applicable to criminal actions
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<PAGE> 4
and to actions brought by or in the name of the corporation. The determination
as to whether a person seeking indemnification has met the required standard of
conduct is to be made (1) by a majority vote of a quorum of disinterested
members of the board of directors, (2) by independent legal counsel in a
written opinion, if such a quorum does not exist or if the disinterested
directors so direct, or (3) by the stockholders.
The Company's Amended and Restated Certificate of Incorporation and
Corrected Bylaws require the Company to indemnify the Company's officers and
directors to the extent authorized by the Delaware General Corporation Law as
set forth above. The Company's Amended and Restated Certificate of
Incorporation limits the personal liability of a director to the corporation or
its stockholders to damages for breach of the director's fiduciary duty.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
<TABLE>
<CAPTION>
Exhibit
Number Exhibit Description
------ -------------------
<S> <C>
4.1 Allwaste, Inc. Deferred Compensation Plan
4.2 Allwaste, Inc. Deferred Compensation Plan and Trust
dated effective February 15, 1997, between
Allwaste, Inc. and Texas Commerce Bank, National
Association, as Trustee
23.1 Consent of Arthur Andersen LLP
24.1 Power of Attorney (included on the signature page hereto)
</TABLE>
ITEM 9. UNDERTAKINGS.
A. Undertaking to Update
The undersigned registrant hereby undertakes:
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<PAGE> 5
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by section 10(a)(3) of
the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the registration statement (or the most
recent post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in the registration statement;
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the registration
statement or any material change to such information in the
registration statement;
Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not
apply if the information required to be included in a post-effective
amendment by those paragraphs is contained in periodic reports filed
with or furnished to the Commission by the registrant pursuant to
Section 13 or Section 15(d) of the Securities Exchange Act of 1934
that are incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability under
the Securities Act of 1933, each such post-effective amendment shall
be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at
that time shall be deemed to be the initial bona fide offering
thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold
at the termination of the offering.
B. Undertaking With Respect to Documents Incorporated by Reference
The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each
filing of the registrant's annual report pursuant to Section 13(a) or
Section 15(d) of the Securities Exchange Act of 1934 that is
incorporated by reference in the registration statement shall be
deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
C. Undertaking with Respect to Delivery of Documents
(1) The undersigned registrant hereby undertakes to deliver
or cause to be delivered with the documents constituting the
prospectus to each participant to whom such prospectus is sent or
given, a copy of the registrant's annual report to stockholders for
its last fiscal year, unless such participant otherwise has received a
copy of such report in which case the registrant shall state in such
prospectus that it will promptly furnish, without charge, a copy of
such report on written request of the participant.
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<PAGE> 6
(2) The undersigned registrant hereby undertakes to transmit
or cause to be transmitted to all participants who do not otherwise
receive such material as stockholders of the registrant, at the time
and in the manner such material is sent to its stockholders, copies of
all reports, proxy statements and other communications distributed to
its stockholders generally.
D. Undertaking With Respect to Indemnification
Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and
controlling persons of the registrant pursuant to the foregoing
provisions, or otherwise, the registrant has been advised that in the
opinion of the Securities and Exchange Commission such indemnification
is against public policy as expressed in the Act and is, therefore,
unenforceable. In the event that a claim for indemnification against
such liabilities (other than the payment by the registrant of expenses
incurred or paid by a director, officer or controlling person of the
registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling
person in connection with the securities being registered, the
registrant will, unless in the opinion of its counsel the matter has
been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such indemnification by
it is against public policy as expressed in the Act and will be
governed by the final adjudication of such issue.
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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 the 29th day of January, 1997.
ALLWASTE, INC.
By: /s/ Robert M. Chiste
-----------------------------------------
Robert M. Chiste
President and Chief Executive Officer
POWER OF ATTORNEY
We, the undersigned directors and officers of Allwaste, Inc., do
hereby constitute and appoint Robert M. Chiste or William L. Fiedler or either
of them, our true and lawful attorneys and agents, to do any and all acts and
things in our name and on our behalf in our capacities as directors and
officers, and to execute any and all instruments for us and in our names in the
capacities indicated below, which said attorneys and agents, or either of them,
may deem necessary or advisable to enable said corporation to comply with the
Securities Act of 1933, as amended, and any rules, regulations and requirements
of the Securities and Exchange Commission, in connection with the filing of
this Registration Statement, including specifically, without limitation, power
and authority to sign for any of us, in our names in the capacities indicated
below, any and all amendments hereto; and we do each hereby ratify and confirm
all that the said attorneys and agents, or either of them, shall do or cause to
be done by virtue hereof.
<PAGE> 8
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities indicated below on the 29th day of January, 1997.
<TABLE>
<S> <C>
/s/ R. L. NELSON, JR. Chairman of the Board of Directors
- ---------------------------------------------
R. L. Nelson, Jr.
/s/ Robert M. Chiste President and Chief Executive Officer;
- --------------------------------------------- Director (Principal Executive Officer)
Robert M. Chiste
/s/ T. Wayne Wren, Jr. Senior Vice President -- Chief Financial
- --------------------------------------------- Officer and Treasurer
T. Wayne Wren, Jr. (Principal Financial Officer)
/s/ Michael W. Ramirez Vice President and Controller
- --------------------------------------------- (Principal Accounting Officer)
Michael W. Ramirez
/s/ Michael A. Baker Director
- ---------------------------------------------
Michael A. Baker
/s/ John U. Clarke Director
- ---------------------------------------------
John U. Clarke
/s/ William E. Haynes Director
- ---------------------------------------------
William E. Haynes
/s/ Robert L. Knauss Director
- ---------------------------------------------
Robert L. Knauss
/s/ Frank A. Rossi Director
- ---------------------------------------------
Frank A. Rossi
/s/ Thomas J. Tierney Director
- ---------------------------------------------
Thomas J. Tierney
/s/ T. Michael Young Director
- ---------------------------------------------
T. Michael Young
</TABLE>
<PAGE> 9
EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit
Number Exhibit Description
------ -------------------
<S> <C>
4.1 Allwaste, Inc. Deferred Compensation Plan
4.2 Allwaste, Inc. Deferred Compensation Plan and Trust
dated effective February 15, between Allwaste, Inc.
and Texas Commerce Bank, National Association, as Trustee
23.1 Consent of Arthur Andersen LLP
24.1 Power of Attorney (included on the signature page hereto)
</TABLE>
<PAGE> 1
EXHIBIT 4.1
ALLWASTE, INC.
DEFERRED COMPENSATION PLAN
Effective Date: February 15, 1997
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
ARTICLE PAGE
----
<S> <C>
I. DEFINITIONS AND CONSTRUCTION . . . . . . . . . . . . . . . . . . . . 1
1.1 DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . . . . 1
(1) ACCOUNT . . . . . . . . . . . . . . . . . . . . . . . . 1
(2) AFFILIATE . . . . . . . . . . . . . . . . . . . . . . . 1
(3) BOARD . . . . . . . . . . . . . . . . . . . . . . . . . 1
(4) CODE . . . . . . . . . . . . . . . . . . . . . . . . . 1
(5) COMMITTEE . . . . . . . . . . . . . . . . . . . . . . . 1
(6) COMPANY . . . . . . . . . . . . . . . . . . . . . . . . 2
(7) DEFERRALS . . . . . . . . . . . . . . . . . . . . . . . 2
(8) DIRECTOR . . . . . . . . . . . . . . . . . . . . . . . 2
(9) DISABILITY . . . . . . . . . . . . . . . . . . . . . . 2
(10) EFFECTIVE DATE . . . . . . . . . . . . . . . . . . . . 2
(11) ELIGIBLE INDIVIDUAL . . . . . . . . . . . . . . . . . . 2
(12) ENTRY DATE . . . . . . . . . . . . . . . . . . . . . . 2
(13) FUNDS . . . . . . . . . . . . . . . . . . . . . . . . . 2
(14) INSIDER . . . . . . . . . . . . . . . . . . . . . . . . 2
(15) MEMBER . . . . . . . . . . . . . . . . . . . . . . . . 2
(16) PAY . . . . . . . . . . . . . . . . . . . . . . . . . . 2
(17) PLAN . . . . . . . . . . . . . . . . . . . . . . . . . 3
(18) PLAN ADMINISTRATOR . . . . . . . . . . . . . . . . . . 3
(19) PLAN YEAR . . . . . . . . . . . . . . . . . . . . . . . 3
(20) RETIREMENT . . . . . . . . . . . . . . . . . . . . . . 3
(21) STOCK FUND . . . . . . . . . . . . . . . . . . . . . . 3
(22) TRUST . . . . . . . . . . . . . . . . . . . . . . . . . 3
(23) TRUST AGREEMENT . . . . . . . . . . . . . . . . . . . . 3
(24) TRUST FUND . . . . . . . . . . . . . . . . . . . . . . 3
(25) TRUSTEE . . . . . . . . . . . . . . . . . . . . . . . . 3
(26) UNFORESEEABLE FINANCIAL EMERGENCY . . . . . . . . . . . 3
(27) VALUATION DATES . . . . . . . . . . . . . . . . . . . . 4
1.2 NUMBER AND GENDER . . . . . . . . . . . . . . . . . . . . . . 4
1.3 HEADINGS . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
II. PARTICIPATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
2.1 ELIGIBILITY . . . . . . . . . . . . . . . . . . . . . . . . . 4
2.2 PARTICIPATION . . . . . . . . . . . . . . . . . . . . . . . . 4
III. ACCOUNT CREDITS AND ALLOCATIONS . . . . . . . . . . . . . . . . . . . 5
3.1 DEFERRALS . . . . . . . . . . . . . . . . . . . . . . . . . . 5
3.2 ALLOCATION OF NET INCOME OR NET LOSS EQUIVALENTS. . . . . . . 7
</TABLE>
(i)
<PAGE> 3
<TABLE>
<S> <C>
IV. DEEMED INVESTMENT OF FUNDS . . . . . . . . . . . . . . . . . . . . . 7
V. VESTING . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
VI. WITHDRAWALS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
6.1 IN GENERAL . . . . . . . . . . . . . . . . . . . . . . . . . . 8
6.2 UNFORESEEABLE FINANCIAL EMERGENCY . . . . . . . . . . . . . . 8
6.3 ELECTIVE WITHDRAWAL . . . . . . . . . . . . . . . . . . . . . 9
VII. DISTRIBUTIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
7.1 AMOUNT OF BENEFIT . . . . . . . . . . . . . . . . . . . . . . 9
7.2 TIME OF PAYMENT . . . . . . . . . . . . . . . . . . . . . . . 9
7.3 ALTERNATIVE FORMS OF BENEFIT PAYMENTS . . . . . . . . . . . . 10
7.4 DESIGNATION OF BENEFICIARIES . . . . . . . . . . . . . . . . . 10
7.5 CHANGE IN PAY-OUT OF CERTAIN BENEFITS . . . . . . . . . . . . 11
7.6 ACCELERATED PAY-OUT DUE TO EMERGENCY . . . . . . . . . . . . . 11
7.7 DEFERRED PAY-OUT DUE TO LOSS OF TAX DEDUCTION . . . . . . . . 11
7.8 PAYMENT OF BENEFITS . . . . . . . . . . . . . . . . . . . . . 12
7.9 UNCLAIMED BENEFITS . . . . . . . . . . . . . . . . . . . . . . 12
VIII. ADMINISTRATION OF THE PLAN . . . . . . . . . . . . . . . . . . . . . 12
8.1 APPOINTMENT OF PLAN ADMINISTRATOR . . . . . . . . . . . . . . 12
8.2 RESIGNATION AND REMOVAL . . . . . . . . . . . . . . . . . . . 12
8.3 RECORDS AND PROCEDURES . . . . . . . . . . . . . . . . . . . . 12
8.4 SELF-INTEREST OF PLAN ADMINISTRATOR . . . . . . . . . . . . . 13
8.5 COMPENSATION AND BONDING . . . . . . . . . . . . . . . . . . . 13
8.6 PLAN ADMINISTRATOR POWERS AND DUTIES . . . . . . . . . . . . . 13
8.7 COMPANY TO SUPPLY INFORMATION . . . . . . . . . . . . . . . . 13
8.8 CLAIMS REVIEW . . . . . . . . . . . . . . . . . . . . . . . . 14
8.9 INDEMNITY . . . . . . . . . . . . . . . . . . . . . . . . . . 14
IX. ADMINISTRATION OF FUNDS . . . . . . . . . . . . . . . . . . . . . . . 15
9.1 PAYMENT OF EXPENSES . . . . . . . . . . . . . . . . . . . . . 15
9.2 TRUST FUND PROPERTY . . . . . . . . . . . . . . . . . . . . . 15
X. NATURE OF THE PLAN . . . . . . . . . . . . . . . . . . . . . . . . . 15
XI. ADOPTING ENTITIES . . . . . . . . . . . . . . . . . . . . . . . . . . 16
</TABLE>
(ii)
<PAGE> 4
<TABLE>
<S> <C>
XII. MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
12.1 NOT CONTRACT OF EMPLOYMENT . . . . . . . . . . . . . . . . . . 16
12.2 ALIENATION OF INTEREST FORBIDDEN . . . . . . . . . . . . . . . 16
12.3 WITHHOLDING . . . . . . . . . . . . . . . . . . . . . . . . . 17
12.4 GUARANTY . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
12.5 AMENDMENT AND TERMINATION . . . . . . . . . . . . . . . . . . 17
12.6 SEVERABILITY . . . . . . . . . . . . . . . . . . . . . . . . . 17
12.7 GOVERNING LAWS . . . . . . . . . . . . . . . . . . . . . . . . 17
</TABLE>
(iii)
<PAGE> 5
ALLWASTE, INC.
DEFERRED COMPENSATION PLAN
W I T N E S S E T H :
WHEREAS, ALLWASTE, INC. and other adopting entities desire to adopt the
ALLWASTE, INC. DEFERRED COMPENSATION PLAN (the "PLAN") for the benefit of
certain eligible individuals; and
NOW THEREFORE, the Plan is hereby adopted as follows, effective as of
February 15, 1997:
I.
DEFINITIONS AND CONSTRUCTION
1.1 DEFINITIONS. Where the following words and phrases appear in the
Plan, they shall have the respective meanings set forth below, unless their
context clearly indicates to the contrary.
(1) ACCOUNT: An individual account for each Member to which is credited the
Deferrals made on his behalf pursuant to Section 3.1 and which is
credited or debited for such account's allocation of net income (or net
loss) equivalents as provided in Section 3.2.
(2) AFFILIATE: Each corporation or unincorporated entity, directly or
indirectly, through one or more intermediaries, controlling, controlled
by, or under common control with Allwaste, Inc. For this purpose,
control shall be determined by a more than 50% ownership standard.
(3) BOARD: The Board of Directors of Allwaste, Inc.
(4) CODE: The Internal Revenue Code of 1986, as amended.
(5) COMMITTEE: A committee of the Board that is composed solely of two or
more directors, none of whom (i) is an officer of Allwaste, Inc. or a
parent or subsidiary thereof or is otherwise employed by Allwaste, Inc.
or a parent or subsidiary thereof; (ii) receives compensation, either
directly or indirectly, from Allwaste, Inc. or a parent or subsidiary
thereof for services rendered as a consultant or in any capacity other
than as a director, except for an amount that does not exceed the dollar
amount for which disclosure would be required pursuant to Item 404(a) of
Regulation S-K; (iii) possesses an interest in any other transaction for
which disclosure would be required pursuant to Item 404(a) of Regulation
S-K; or (iv) is
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<PAGE> 6
engaged in a business relationship for which disclosure would be
required pursuant to item 404(b) of Regulation S-K.
(6) COMPANY: Allwaste, Inc. and any other adopting entity which adopts the
Plan pursuant to the provisions of Article XI.
(7) DEFERRALS: Deferrals made by the Company on a Member's behalf pursuant
to Section 3.1.
(8) DIRECTOR: Any member of the Board of Directors of Allwaste, Inc. and/or
its Affiliates.
(9) DISABILITY: The total and permanent disability of a Member, as
determined in the sole discretion of the Plan Administrator, based on a
written medical opinion (unless waived by the Plan Administrator as
unnecessary), that such Member is permanently incapable of performing
his job for physical or mental reasons.
(10) EFFECTIVE DATE: February 15, 1997.
(11) ELIGIBLE INDIVIDUAL: Any individual (i) who is employed by the Company
and whose rate of base annual salary, as of his applicable Deferral
election date for a Plan Year, is at least $80,000, (ii) who is a member
of the Management Council of the Company, or (iii) who is a Director.
For all purposes herein, the "service" of an individual as a Director
shall be deemed to be equivalent to "employment" with the Company. The
$80,000 base annual salary threshold provided above may be adjusted
upward from time to time in the sole discretion of the Plan
Administrator. In the event an individual is disabled as of a Deferral
election date, his rate of base annual salary as of the inception of
such Disability shall be deemed to be his base annual salary as of such
Deferral election date.
(12) ENTRY DATE: The first day of each Plan Year and, with respect to an
Eligible Individual who becomes a Member on other than the first day of
a Plan Year, the date such Eligible Individual becomes a Member in such
Plan Year.
(13) FUNDS: The investment funds designated from time to time for the deemed
investment of Accounts pursuant to Article IV.
(14) INSIDER: An officer or director subject to Section 16(b) of the
Securities Exchange Act of 1934, as amended.
(15) MEMBER: Each Eligible Individual who has met the eligibility
requirements for participation in the Plan and who has become a Member
pursuant to Article II.
(16) PAY: The total of all amounts paid by the Company to or for the benefit
of a Member for services rendered or labor performed, which are required
to be reported on such Member's federal income tax withholding
statement(s) (Form W-2, 1099, or their subsequent equivalents),
excluding taxable income resulting from the exercise of nonqualified
stock
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<PAGE> 7
options, the imputed value of group term life insurance, relocation
reimbursements and from non-cash executive perquisites, deductions for
supplemental life and medical coverages or other similar payroll
deductions, plus any amounts such Member could have received in cash in
lieu of Deferrals pursuant to Section 3.1.
(17) PLAN: The Allwaste, Inc. Deferred Compensation Plan, as amended from
time to time.
(18) PLAN ADMINISTRATOR: The Plan administrator appointed by the Chief
Executive Officer of Allwaste, Inc. pursuant to Section 8.1.
(19) PLAN YEAR: The short period commencing on the Effective Date and ending
on August 31, 1997, and thereafter, the twelve-consecutive month period
commencing September 1 of each year, which Plan Year may be amended from
time to time in the discretion of the Board so that the Plan Year
coincides with the fiscal year in effect for the Company.
(20) RETIREMENT: As to a Member who is not a Director, termination of
employment with the Company and its Affiliates after attainment of age
fifty-five. As to a Member who is a Director, termination of employment
with the Company following the date which is at least five years after
the first day of the Plan Year in which he commenced participation in
the Plan.
(21) STOCK FUND: The Allwaste, Inc. Common Stock Fund.
(22) TRUST: The trust, if any, established under the Trust Agreement.
(23) TRUST AGREEMENT: The agreement, if any, entered into between the
Company and the Trustee pursuant to Article X.
(24) TRUST FUND: The funds and properties, if any, held pursuant to the
provisions of the Trust Agreement, together with all income, profits and
increments thereto.
(25) TRUSTEE: The trustee appointed by the Board who is qualified and acting
under the Trust Agreement at any time.
(26) UNFORESEEABLE FINANCIAL EMERGENCY: An unexpected need of a Member for
cash that (i) arises from an illness, casualty loss, sudden financial
reversal, or such other unforeseeable occurrence that is caused by an
event beyond the control of such Member, (ii) would result in severe
financial hardship to such Member if his Deferral election was not
reduced or cancelled pursuant to Section 3.1(g) and/or if a withdrawal
or benefit payment pursuant to Article VI or Section 7.6 was not
permitted, and (iii) is not reasonably satisfiable from other resources
of such Member. Cash needs arising from foreseeable events, such as the
purchase of a house or education expenses for children, shall not be
considered to be the result of an Unforeseeable Financial Emergency.
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<PAGE> 8
(27) VALUATION DATES: Each Entry Date and any other interim Valuation Date
designated by the Plan Administrator on a nondiscriminatory basis.
Notwithstanding the foregoing, an interim Valuation Date shall be
designated as the date next preceding the date a withdrawal or payment
of a Member's benefit is to be made or to commence pursuant to Article
VI or Article VII.
1.2 NUMBER AND GENDER. Wherever appropriate herein, words used in
the singular shall be considered to include the plural and words used in the
plural shall be considered to include the singular. The masculine gender,
where appearing in the Plan, shall be deemed to include the feminine gender.
1.3 HEADINGS. The headings of Articles and Sections herein are
included solely for convenience, and if there is any conflict between such
headings and the text of the Plan, the text shall control.
II.
PARTICIPATION
2.1 ELIGIBILITY. Any Eligible Individual shall be eligible to become
a Member of the Plan for any Plan Year by electing to make Deferrals pursuant
to Section 3.1.
2.2 PARTICIPATION.
(a) Prior to each Entry Date, the Plan Administrator shall
notify those Eligible Individuals who are determined by the Plan Administrator
to be eligible to initially become Members pursuant to Section 2.1 as of such
Entry Date. Any such Eligible Individual may become a Member for the Plan Year
beginning on such Entry Date by effecting, prior to such Entry Date and within
the time period prescribed by the Plan Administrator, the Deferral election
prescribed by the Plan Administrator. Notwithstanding any provision herein to
the contrary, an Eligible Individual who first becomes an Eligible Individual
on other than the first day of a Plan Year may become a Member on the first day
of the calendar month coinciding with or next following the date he first
becomes an Eligible Individual for the remainder of such Plan Year with respect
to Deferrals pursuant to Section 3.1 by effecting, prior to or within 30 days
after the date he first becomes an Eligible Individual and within the time
period prescribed by the Plan Administrator, the Deferral election prescribed
by the Plan Administrator.
(b) Notwithstanding any provision herein to the contrary, if
an Eligible Individual becomes a Member of the Plan and has a reduction in base
annual salary below the applicable base annual salary threshold as of a
Deferral election date for a Plan Year, such Eligible Individual shall not be
entitled to make Deferrals hereunder for such Plan Year. Any such Eligible
Individual may again become entitled to make Deferrals hereunder for any
subsequent Plan Year if, as of the Deferral election date for such Plan Year,
such Eligible Individual meets the applicable base annual salary threshold.
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<PAGE> 9
(c) Notwithstanding any provision herein to the contrary, an
Eligible Individual who has become a Member of the Plan shall cease to be
entitled to make Deferrals hereunder effective as of any date designated by the
Plan Administrator. Any such Plan Administrator action shall be communicated
to the affected individual prior to the effective date of such action. Any
such Eligible Individual may again become entitled to make Deferrals hereunder
for any subsequent Plan Year selected by the Plan Administrator in its sole
discretion.
III.
ACCOUNT CREDITS AND ALLOCATIONS
3.1 DEFERRALS.
(a) A Member may:
(1) Elect to defer from his Pay a fixed amount or an
integral percentage of from 1% to 100% of his base annual salary (or of
his cash fees in the case of a Director) for a Plan Year; and/or
(2) Elect to defer from his Pay a fixed amount or an
integral percentage of from 1% to 100% of his commissions and annual
incentive bonus (or of his cash retainers in the case of a Director) for
a Plan Year.
Notwithstanding the foregoing, no Member may elect to defer less than $2,000 of
his Pay for any Plan Year (with such amounts prorated for any Plan Year of less
than twelve months with respect to any Member). Further, with respect to an
Eligible Individual who first becomes a Member on other than the first day of a
Plan Year, any such Deferrals pursuant to Section 3.1(a)(1) shall apply only
for the portion of such Plan Year commencing with the date he first becomes a
Member and ending on the last day of such Plan Year.
(b) Pay for a Plan Year not so deferred by such election
pursuant to this Section shall be received by such Member in cash. A Member's
election to defer an amount of his Pay pursuant to this Section shall be made
by effecting, in the form prescribed by the Plan Administrator, a Deferral
election pursuant to which the Member authorizes the Company to reduce his Pay
in the elected amount and the Company, in consideration thereof, agrees to
credit an equal amount to such Member's Account maintained under the Plan. The
reduction in a Member's Pay pursuant to Section 3.1(a)(1) shall be effected by
equal Pay reductions each pay period during the applicable portion of the Plan
Year as determined by the Plan Administrator following the effective date of
such election. The reduction in a Member's Pay pursuant to Section 3.1(a)(2)
shall be effected by a Pay reduction at the time such commissions and annual
bonus (or retainer) is paid. Such Pay reductions shall be within the Plan Year
to which the Deferral election relates, except that Pay reductions attributable
to elections pursuant to Section 3.1(a)(2) may be made within the next
following Plan Year if the commissions and/or bonus (or retainer) to which the
Deferral election relates is paid in such next following Plan Year. Deferrals
made by a Member shall be credited to such Member's Account as of the date
deferred.
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<PAGE> 10
(c) Notwithstanding the foregoing, a Deferral election of a
Member pursuant to Section 3.1(a)(1) for a Plan Year shall be automatically
suspended during such Member's unpaid leave of absence, period of coverage
under the Company's short-term disability program or period of Disability and
upon termination of such Member's employment with the Company and its
Affiliates. A Deferral election of a Member pursuant to Section 3.1(a) may,
with the consent of the Plan Administrator, be suspended for the remainder of
the Plan Year in which such Member has an unpaid leave of absence, period of
coverage under the Company's short-term disability program or period of
Disability. Any such Member may again become entitled to make Deferrals
hereunder for any subsequent Plan Year following return to full-time
employment.
(d) A Deferral election shall indicate the applicable time and
form of payment, as provided in Sections 7.2 and 7.3, for the Pay deferred
thereunder for such Plan Year and the net income (or net loss) equivalents
allocated with respect thereto. A Member may make different time and form of
payment elections with respect to base annual salary (or cash fee) Deferrals
and commissions and annual incentive bonus (or cash retainer) Deferrals for any
Plan Year. Each Member's Account shall be divided into subaccounts to reflect
such Member's various elections respecting time and form of payment.
(e) A Deferral election pursuant to Section 3.1(a) shall
become effective as of the Entry Date which is on or after the date the
election is effected by the Member. A Deferral election shall only remain in
force and effect for the entire (or partial, if applicable) Plan Year to which
such election relates.
(f) A Member who has made a Deferral election pursuant to
Section 3.1(a) for any Plan Year shall make a new Deferral election, which may
be a change in or cancellation of his prior Deferral election, as of the Entry
Date of each subsequent Plan Year, by effecting such new Deferral election
prior to such Entry Date and within the time period prescribed by the Plan
Administrator.
(g) In the event that the Plan Administrator, upon written
petition of a Member, determines in its sole discretion that such Member has
suffered an Unforeseeable Financial Emergency, the Deferral election of such
Member then in effect, if any, shall be reduced or terminated as soon as
administratively practicable after such determination. A Member whose Deferral
election has been so reduced or terminated may again make a new Deferral
election for a subsequent Plan Year that begins after the effective date of
such termination, if he satisfies the eligibility requirements set forth in
Section 2.1, by effecting a new Deferral election for such Plan Year and within
the time period prescribed by the Plan Administrator.
3.2 ALLOCATION OF NET INCOME OR NET LOSS EQUIVALENTS.
(a) As of each Valuation Date, the Plan Administrator shall
determine the net income (or net loss) equivalents of each Fund for the period
elapsed since the next preceding Valuation Date. The net income (or net loss)
equivalent of each Fund since the next preceding Valuation Date shall be
ascertained by the Plan Administrator based upon changes in asset value in such
manner as it deems appropriate, which may include expenses of operating the
Fund.
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<PAGE> 11
(b) For purposes of allocations of net income (or net loss)
equivalents, each Member's Accounts shall be divided into subaccounts to
reflect such Member's deemed investment in a particular Fund or Funds pursuant
to Article IV. As of each Valuation Date, the net income (or net loss)
equivalent of each Fund, separately and respectively, shall be allocated among
the corresponding subaccounts of the Members who were deemed to have had such
corresponding subaccounts invested in such Funds since the next preceding
Valuation Date.
(c) So long as there is any balance in any Account, such
Account shall continue to receive allocations pursuant to this Section.
IV.
DEEMED INVESTMENT OF FUNDS
Each Member shall designate, in accordance with the procedures
established from time to time by the Plan Administrator, the manner in which
the amounts allocated to his Account shall be deemed to be invested from among
the Funds made available from time to time for such purpose by the Plan
Administrator. Such Funds may include the Stock Fund. Such Member may
designate one of such Funds for the deemed investment of all the amounts
allocated to his Account or he may split the deemed investment of the amounts
allocated to his Account among such Funds in whole percentage increments. If a
Member fails to make a proper designation, then his Account shall be deemed to
be invested in the Fund or Funds designated by the Plan Administrator from time
to time in a uniform and nondiscriminatory manner. Any such initial
designation by an Insider affecting the Stock Fund shall be approved in advance
of the effective date of such initial designation by either the Board or the
Committee.
A Member may change his deemed investment designation for future amounts
to be allocated to his Account. Any such change shall be made as of the first
day of any calendar quarter in accordance with the procedures established by
the Plan Administrator, and the frequency of such changes may be limited by the
Plan Administrator. Any such change in designation by an Insider affecting the
Stock Fund shall be approved in advance of the effective date of such change of
designation by either the Board or the Committee.
A Member may elect to convert his deemed investment designation with
respect to the amounts already allocated to his Account. Any such conversion
shall be made as of the first day of any calendar quarter in accordance with
the procedures established by the Plan Administrator, and the frequency of such
conversions may be limited by the Plan Administrator. No election of a
conversion designation by an Insider which has the effect of increasing the
total amount allocated to the Stock Fund may be made on a date which is
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<PAGE> 12
less than six months following (i) the date of any prior election of a
conversion designation by such Insider which had the effect of decreasing the
total amount allocated to the Stock Fund or (ii) the date of any election by
such Insider with respect to any other plan of Allwaste, Inc. or any subsidiary
thereof which had the effect (directly or indirectly) of making a disposition
on behalf of such Insider of the same class of equity security as that which is
the subject of such Stock Fund. No election of a conversion designation by an
Insider which has the effect of decreasing the total amount allocated to the
Stock Fund may be made on a date which is less than six months following (i)
the date of any prior election of a conversion designation by such Insider
which had the effect of increasing the total amount allocated to the Stock Fund
or (ii) the date of any election by such Insider with respect to any other plan
of Allwaste, Inc. or any subsidiary thereof which had the effect (directly or
indirectly) of making an acquisition on behalf of the Insider of the same class
of equity security as that which is the subject of such Stock Fund.
The restrictions contained herein regarding investment designations,
changes, and/or conversions by Insiders respecting the Stock Fund are intended
to comply with, and enable Insiders to rely upon, the exemption provided by
Rule 16b-3 under the Securities Exchange Act of 1934, as amended. Any future
amendment to Rule 16b-3 or any successor rule promulgated by the Securities and
Exchange Commission affecting the investment by Insiders in the Stock Fund
shall be incorporated by reference herein and be deemed to be an amendment to
the Plan in order that Insiders shall continue to be entitled to rely upon the
exemption provided by such rule without any interruption. Notwithstanding the
foregoing, the Plan Administrator may alter the designation, change and/or
conversion restrictions applicable to an Insider, as set forth in this Article
IV, as a result of changes in Rule 16b-3 under the Securities Exchange Act of
1934, as amended.
V.
VESTING
A Member shall be 100% vested in his Account at all times.
VI.
WITHDRAWALS
6.1 IN GENERAL. Except as provided in this Article VI and in Article
VII, Members shall not be permitted to make withdrawals from the Plan. Members
shall not, at any time, be permitted to borrow from the Plan.
6.2 UNFORESEEABLE FINANCIAL EMERGENCY. In the event that the Plan
Administrator, upon written petition of a Member, determines in its sole
discretion that such Member has suffered an Unforeseeable Financial Emergency
that would not be remedied fully by the reduction or termination of the
Deferral pursuant to Section 3.1(g), such Member shall be entitled to a
benefit, determined as of any Valuation Date, in an amount not to exceed the
lesser of (1) the amount determined by the Plan Administrator as necessary to
meet such Member's needs created by the Unforeseeable Financial Emergency or
(2) the then value of such Member's Account. Such withdrawal benefit shall be
paid in a single lump sum, cash payment as soon as administratively practicable
after the Plan Administrator has made its determinations with respect to the
availability and amount of such benefit. If a Member's Account contains more
than one distribution subaccount, such withdrawal benefit shall be considered
to have been distributed, first, from the subaccount with respect to which the
earliest distribution would be made, then, from the subaccount with respect to
which the next earliest distribution would be made, and continuing in such
manner until all of such subaccounts
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<PAGE> 13
necessary to satisfy the withdrawal benefit have been exhausted. Moreover,
within the applicable Account or subaccount, such withdrawal benefit shall be
considered to have been distributed from Deferrals (including net income (or
net loss) and additional interest equivalents attributable thereto) on a first-
in, first-out basis.
6.3 ELECTIVE WITHDRAWAL.
(a) A Member may elect at any time, by effecting the election
procedure prescribed by the Plan Administrator, to withdraw as a benefit all,
but not less than all, of his Account as of any Valuation Date, subject to a
withdrawal penalty of 10% of such Account as of such Valuation Date. Upon any
such withdrawal, the withdrawal penalty shall be forfeited to the Company.
Upon any such withdrawal, such Member's participation in the Plan shall
terminate and no further Deferrals shall be made under the Plan on behalf of
such Member.
(b) No election of a withdrawal of an amount allocated to the
Stock Fund may be made by an Insider on a date which is less than six months
following (i) the date of any prior election to convert such Insider's deemed
investment designation which had the effect of increasing the total amount
allocated to the Stock Fund or (ii) the date of any election by such Insider
with respect to any other plan of Allwaste, Inc. or any subsidiary thereof
which had the effect (directly or indirectly) of making an acquisition on
behalf of such Insider of the same class of equity security as that which is
the subject of such Stock Fund.
VII.
DISTRIBUTIONS
7.1 AMOUNT OF BENEFIT. A Member or, in the event of the death of the
Member, the Member's designated beneficiary, shall be entitled to a benefit
equal in value to the Member's Account as of the Valuation Date next preceding
the date the payment of such benefit is to be made or to commence pursuant to
Section 7.2 (plus any commissions or annual bonus (or retainer) Deferral not
previously allocated to such Account).
7.2 TIME OF PAYMENT. Payment of a Member's benefit under Section 7.1
shall be made or commence, with respect to such Member's Account, or with
respect to such Member's subaccounts established pursuant to Section 3.1(e)
separately and respectively, as soon as administratively practicable as of the
date irrevocably elected by such Member pursuant to Section 3.1(e). A Member
may, pursuant to Section 3.1(e), elect distribution with respect to all or a
part of his Deferrals for any Plan Year to be made as of an Entry Date which is
at least three years following the beginning of such Plan Year (but no more
than two such interim distribution dates may be elected with respect to
Deferrals for any Plan Year) or to be made or commenced after the first day of
the month following his Retirement. Notwithstanding the foregoing, payment of
a Member's benefit under Section 7.1 shall be made or commence as soon as
administratively practicable after the date the Member terminates his
employment with the Company and its Affiliates for any reason, including
Retirement, Disability or death. For this purpose, a Member on Disability for
a period of
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<PAGE> 14
two years shall be deemed to have terminated his employment with the Company
and its Affiliates as of the end of such two-year period.
7.3 ALTERNATIVE FORMS OF BENEFIT PAYMENTS. A Member's benefit under
Section 7.1 payable prior to termination of employment with the Company and its
Affiliates shall be paid, with respect to such Member's Account, or with
respect to such Member's subaccounts established pursuant to Section 3.1(e)
separately and respectively, in one lump sum payment. A Member's benefit under
Section 7.1 payable after termination of employment with the Company and its
Affiliates prior to a Member's Retirement shall be paid in one lump sum
payment. A Member's benefit under Section 7.1 payable after a Member's
Retirement (inclusive of termination due to Disability) shall be paid in one of
the following forms irrevocably elected by such Member pursuant to Section
3.1(e):
(1) One lump sum payment; or
(2) Monthly, quarterly, or annual installment payments for a
term certain of either 5 or 10 years, payable to the Member or, in the
event of such Member's death prior to the end of such term certain, to
his designated beneficiary as provided in Section 7.4; provided, that
such beneficiary's share of the remaining installments shall be paid in
one lump sum.
With respect to any portion of a Member's Retirement benefit for which no form
of payment election is in effect, such amount shall be paid in the 10-year
annual installment payment form; provided, however, that the Plan Administrator
may, in its sole discretion, elect to make such benefit payment in any other
available form. If a Member dies prior to the date the payment of his lump sum
benefit is made, then such lump sum benefit shall be made to the Member's
designated beneficiary or beneficiaries as provided in Section 7.4. Plan
provisions to the contrary notwithstanding, if payments are to be made in
installments, "installment valuation dates" shall be established as of each
payment date. As of each such "installment valuation date," net income (or net
loss) equivalents shall be allocated to the Member's Account. The installment
payment to be made on behalf of a Member as of each such "installment valuation
date" shall be determined by multiplying the balance of such Member's Account
as of such "installment valuation date" (after allocation of net income (or net
loss) equivalents) by a fraction, the numerator of which is one and the
denominator of which is the number of installments remaining in the installment
period.
7.4 DESIGNATION OF BENEFICIARIES.
(a) Each Member shall have the right to designate the
beneficiary or beneficiaries to receive payment of his benefit in the event of
his death. Each such designation shall be made by executing the beneficiary
designation form prescribed by the Plan Administrator and filing same with the
Plan Administrator. Any such designation may be changed at any time by
execution of a new designation in accordance with this Section.
(b) If no such designation is on file with the Plan
Administrator at the time of the death of the Member or such designation is not
effective for any reason as determined by the Plan
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<PAGE> 15
Administrator, then the designated beneficiary or beneficiaries to receive such
benefit shall be as follows:
(1) If a Member leaves a surviving spouse, his benefit
shall be paid to such surviving spouse;
(2) If a Member leaves no surviving spouse, his benefit
shall be paid to such Member's executor or administrator, or to his
heirs at law if there is no administration of such Member's estate.
7.5 CHANGE IN PAY-OUT OF CERTAIN BENEFITS.
(a) Notwithstanding any provision in Section 7.3 to the
contrary, if a Member's Retirement benefit payments are to be paid in
installments and the aggregate amount to be paid with respect to such Member in
any particular Plan Year is less than $12,000 calculated at the beginning of
the Plan Year without adjustment for income (or loss) in the Plan Year, then
the Plan Administrator in its sole discretion may cause the installment
payments for such Plan Year with respect to such Member to be paid in one lump
sum payment.
(b) Notwithstanding any provision in Section 7.3 to the
contrary, if a Member's Retirement benefit payments respecting any one
subaccount established pursuant to Section 3.1(e) are to be paid in
installments and the aggregate amount remaining to be paid with respect to such
subaccount is less than $50,000 calculated at the beginning of the Plan Year
without adjustment for income (or loss) in the Plan Year, then the Plan
Administrator in its sole discretion may cause the remaining benefit payments
with respect to such subaccount to be paid in one lump sum payment.
7.6 ACCELERATED PAY-OUT DUE TO EMERGENCY. Notwithstanding any
provision in Sections 7.2 and 7.3 to the contrary, in the event that the Plan
Administrator, upon written petition of a Member, determines in its sole
discretion that such Member has suffered an Unforeseeable Financial Emergency,
such Member shall be entitled to an accelerated payout of his benefit pursuant
to Section 6.2. Any remaining amounts in such Member's Account following
payment of such emergency benefit shall be payable at the time(s) and in the
form(s) otherwise provided in Sections 7.2 and 7.3.
7.7 DEFERRED PAY-OUT DUE TO LOSS OF TAX DEDUCTION. If the Company
determines in good faith that there is a reasonable likelihood that any
benefits paid to a Member pursuant to this Article VII would not be deductible
by the Company under applicable income tax provisions then in effect, then to
the extent deemed necessary by the Company to ensure that the entire amount of
any such distribution to a Member is deductible, the Company may defer payment
of all or any portion of such benefits. Any amount deferred pursuant to this
Section 7.7 shall continue to receive net income (or net loss) equivalents
pursuant to the Plan until distribution. The amounts so deferred shall be
distributed to the Member (or his beneficiary in the event of the Member's
death) at the earliest possible date, as determined by the Company in good
faith, as of which such deductibility will be ensured.
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<PAGE> 16
7.8 PAYMENT OF BENEFITS. To the extent the Trust Fund has sufficient
assets, the Trustee shall pay benefits to Members or their beneficiaries,
except to the extent the Company pays the benefits directly and provides
adequate evidence of such payment to the Trustee. To the extent the Trustee
does not or cannot pay benefits out of the Trust Fund, the benefits shall be
paid by the Company. Any benefit payments made to a Member or for his benefit
pursuant to any provision of the Plan shall be debited to such Member's
Account. All benefit payments shall be made in cash to the fullest extent
practicable.
7.9 UNCLAIMED BENEFITS. In the case of a benefit payable on behalf
of a Member, if, after exercising reasonable diligence, the Plan Administrator
is unable to locate the Member or beneficiary to whom such benefit is payable,
upon the Plan Administrator's determination thereof, such benefit shall be
forfeited to the Company. Notwithstanding the foregoing, if subsequent to any
such forfeiture the Member or beneficiary to whom such benefit is payable makes
a valid claim for such benefit, such forfeited benefit shall be restored to the
Plan by the Company.
VIII.
ADMINISTRATION OF THE PLAN
8.1 APPOINTMENT OF PLAN ADMINISTRATOR. The general administration of
the Plan shall be vested in the Plan Administrator (which may be an individual
or a committee of two or more persons) which shall be appointed by the Chief
Executive Officer of Allwaste, Inc.
8.2 RESIGNATION AND REMOVAL. At any time during his term of office,
the individuals comprising the Plan Administrator may resign by giving written
notice to the Board, such resignation to become effective upon the appointment
of a substitute or, if earlier, the lapse of thirty days after such notice is
given as herein provided. At any time during its term of office, and for any
reason, the individuals comprising the Plan Administrator may be removed by the
Board.
8.3 RECORDS AND PROCEDURES. The Plan Administrator shall keep
appropriate records of its proceedings and the administration of the Plan and
shall make available for examination during business hours to any Member or
beneficiary such records as pertain to that individual's interest in the Plan.
The Plan Administrator shall provide an annual statement to each Member or
beneficiary of his interest in the Plan. The Plan Administrator shall
designate the person or persons who shall be authorized to sign for the Plan
Administrator and, upon such designation, the signature of such person or
persons shall bind the Plan Administrator.
8.4 SELF-INTEREST OF PLAN ADMINISTRATOR. No individual comprising
the Plan Administrator shall have any right to vote or decide upon any matter
relating solely to himself under the Plan or to vote in any case in which his
individual right to claim any benefit under the Plan is particularly involved.
In any case in which an individual comprising the Plan Administrator is so
disqualified to act, the remaining individuals comprising the Plan
Administrator or, if none, the Board shall decide the matter in which he is
disqualified.
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<PAGE> 17
8.5 COMPENSATION AND BONDING. The Plan Administrator shall not
receive compensation with respect to its services as Plan Administrator. To
the extent required by applicable law, or required by the Company, the Plan
Administrator shall furnish bond or security for the performance of its duties
hereunder.
8.6 PLAN ADMINISTRATOR POWERS AND DUTIES. The Plan Administrator
shall supervise the administration and enforcement of the Plan according to the
terms and provisions hereof and shall have all powers necessary to accomplish
these purposes, including, but not by way of limitation, the right, power,
authority and duty:
(a) to make rules, regulations and bylaws for the
administration of the Plan which are not inconsistent with the terms and
provisions hereof, provided such rules, regulations and bylaws are
evidenced in writing and copies thereof are delivered to the Trustee and
to the Company;
(b) to construe all terms, provisions, conditions and
limitations of the Plan;
(c) to correct any defect or supply any omission or reconcile
any inconsistency that may appear in the Plan, in such manner and to
such extent as it shall deem expedient to carry the Plan into effect for
the greatest benefit of all interested parties;
(d) to employ and compensate such accountants, attorneys,
investment advisors and other agents and employees as the Plan
Administrator may deem necessary or advisable in the proper and
efficient administration of the Plan;
(e) to determine all questions relating to eligibility;
(f) to determine the amount, manner and time of payment of any
benefits and to prescribe procedures to be followed by Members and their
beneficiaries in obtaining benefits;
(g) to make a determination as to the right of any person to a
benefit under the Plan; and
(h) to receive and review reports from the Trustee as to the
financial condition of the Trust Fund, including its receipts and
disbursements.
8.7 COMPANY TO SUPPLY INFORMATION. The Company shall supply full and
timely information to the Plan Administrator relating to the Pay of all
Members, their ages, their Retirement, Disability, death or other termination
of employment and such other pertinent facts as the Plan Administrator may
require. The Company shall advise the Trustee of such of the foregoing facts
as are deemed necessary for the Trustee to carry out the Trustee's duties under
the Plan. When making a determination in connection with the Plan, the Plan
Administrator shall be entitled to rely upon the aforesaid information
furnished by the Company.
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<PAGE> 18
8.8 CLAIMS REVIEW. In any case in which a claim for Plan benefits of
a Member or beneficiary is denied or modified, the Plan Administrator shall
furnish written notice to the claimant within ninety days (or within 180 days
if additional information requested by the Plan Administrator necessitates an
extension of the ninety-day period), which notice shall:
(a) State the specific reason or reasons for the denial or
modification;
(b) Provide specific reference to pertinent Plan provisions on
which the denial or modification is based;
(c) Provide a description of any additional material or
information necessary for the Member, his beneficiary, or representative
to perfect the claim and an explanation of why such material or
information is necessary; and
(d) Explain the Plan's claim review procedure as contained
herein.
In the event a claim for Plan benefits is denied or modified, if the Member,
his beneficiary, or a representative of such Member or beneficiary desires to
have such denial or modification reviewed, he must, within sixty days following
receipt of the notice of such denial or modification, submit a written request
for review by the Plan Administrator of its initial decision. In connection
with such request, the Member, his beneficiary, or the representative of such
Member or beneficiary may review any pertinent documents upon which such denial
or modification was based and may submit issues and comments in writing.
Within sixty days following such request for review the Plan Administrator
shall, after providing a full and fair review, render its final decision in
writing to the Member, his beneficiary or the representative of such Member or
beneficiary stating specific reasons for such decision and making specific
references to pertinent Plan provisions upon which the decision is based. If
special circumstances require an extension of such sixty-day period, the Plan
Administrator's decision shall be rendered as soon as possible, but not later
than 120 days after receipt of the request for review. If an extension of time
for review is required, written notice of the extension shall be furnished to
the Member, beneficiary, or the representative of such Member or beneficiary
prior to the commencement of the extension period.
8.9 INDEMNITY. To the extent permitted by applicable law, the
Company shall indemnify and save harmless the Board and any individual acting
as Plan Administrator against any and all expenses, liabilities and claims
(including legal fees incurred to defend against such liabilities and claims)
arising out of their discharge in good faith of responsibilities under or
incident to the Plan. Expenses and liabilities arising out of willful
misconduct shall not be covered under this indemnity. This indemnity shall not
preclude such further indemnities as may be available under insurance purchased
by the Company or provided by the Company under any bylaw, agreement, vote of
stockholders or disinterested Directors or otherwise, as such indemnities are
permitted under applicable law.
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<PAGE> 19
IX.
ADMINISTRATION OF FUNDS
9.1 PAYMENT OF EXPENSES. All expenses incident to the administration
of the Plan and Trust, including but not limited to, legal, accounting, Trustee
fees, and expenses of the Plan Administrator, shall be paid by the Company and,
if not paid by the Company, shall be paid by the Trustee from the Trust Fund,
if any.
9.2 TRUST FUND PROPERTY. All income, profits, recoveries,
contributions, forfeitures and any and all moneys, securities and properties of
any kind at any time received or held by the Trustee, if any, shall be held as
a commingled Trust Fund pursuant to the terms of the Trust Agreement. The Plan
Administrator shall maintain an Account in the name of each Member, but the
maintenance of an Account designated as the Account of a Member shall not mean
that such Member shall have a greater or lesser interest than that due him by
operation of the Plan and shall not be considered as segregating any funds or
property from any other funds or property contained in the commingled fund. No
Member shall have any title to any specific asset in the Trust Fund, if any.
X.
NATURE OF THE PLAN
The Company intends and desires by the adoption of the Plan to recognize
the value to the Company of the past and present services of individuals
covered by the Plan and to encourage and assure their continued service with
the Company by making more adequate provision for their future retirement
security. The Plan is intended to constitute an unfunded, unsecured plan of
deferred compensation for a select group of management or highly compensated
employees of the Company and for Directors. Plan benefits herein provided are
a contractual obligation of the Company which may be paid out of the Company's
general assets or out of the Trust Fund. Subject to the terms hereof and of
the Trust Agreement, the Company may transfer money or other property to the
Trustee, and the Trustee shall pay Plan benefits to Members and their
beneficiaries out of the Trust Fund in accordance with the terms of the Trust
Agreement.
The Board, in its sole discretion, may establish the Trust and direct
the Company to enter into the Trust Agreement. In such event, the Company
shall remain the owner of all assets in the Trust Fund and the assets shall be
subject to the claims of Company creditors if the Company ever becomes
insolvent. For purposes hereof, the Company shall be considered "insolvent" if
(a) the Company is unable to pay its debts as they become due, or (b) the
Company is subject to a pending proceeding as a debtor under the United Sates
Bankruptcy Code (or any successor federal statute). The Chief Executive
Officer of the Company and its Board shall have the duty to inform the Trustee
in writing if the Company becomes insolvent. Such notice given under the
preceding sentence by any party shall satisfy all of the parties' duty to give
notice. When so informed, the Trustee shall suspend payments to the Members
and hold the assets for the benefit of the Company's general creditors. If the
Trustee receives a written allegation that the Company is insolvent, the
Trustee shall
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<PAGE> 20
suspend payments to the Members and hold the Trust Fund for the benefit of the
Company's general creditors, and shall determine within the period specified in
the Trust Agreement whether the Company is insolvent. If the Trustee
determines that the Company is not insolvent, the Trustee shall resume payments
to the Members. No Member or beneficiary shall have any preferred claim to, or
any beneficial ownership interest in, any assets of the Trust Fund.
XI.
ADOPTING ENTITIES
It is contemplated that other corporations, associations, partnerships
or proprietorships may adopt this Plan and thereby become the Company. Any
such entity, whether or not presently existing, may become a party hereto by
appropriate action of its officers without the need for approval of its board
of directors or noncorporate counterpart or of the Board; provided, however,
that such entity must be an Affiliate. The provisions of the Plan shall apply
separately and equally to each Company and its employees in the same manner as
is expressly provided for Allwaste, Inc. and its employees, except that the
power to appoint or otherwise affect the Plan Administrator or the Trustee and
the power to amend or terminate the Plan or amend the Trust Agreement shall be
exercised by the Board alone. Transfer of employment among Companies and
Affiliates shall not be considered a termination of employment hereunder. Any
Company may, by appropriate action of its officers without the need for
approval of its board of directors or noncorporate counterpart or the Board,
terminate its participation in the Plan. Moreover, the Board may, in their
discretion, terminate a Company's Plan participation at any time.
XII.
MISCELLANEOUS
12.1 NOT CONTRACT OF EMPLOYMENT. The adoption and maintenance of the
Plan shall not be deemed to be a contract between the Company and any person or
to be consideration for the employment of any person. Nothing herein contained
shall be deemed to give any person the right to remain under contract with the
Company or to be retained in the employ of the Company or to restrict the right
of the Company to discharge any person at any time nor shall the Plan be deemed
to give the Company the right to require any person to remain under contract
with the Company or remain in the employ of the Company or to restrict any
person's right to terminate his services at any time.
12.2 ALIENATION OF INTEREST FORBIDDEN. The interest of a Member or
his beneficiary or beneficiaries hereunder may not be sold, transferred,
assigned, or encumbered in any manner, either voluntarily or involuntarily, and
any attempt so to anticipate, alienate, sell, transfer, assign, pledge,
encumber, or charge the same shall be null and void; neither shall the benefits
hereunder be liable for or subject to the debts, contracts, liabilities,
engagements or torts of any person to whom such benefits or funds are payable,
nor shall they be an asset in bankruptcy or subject to garnishment, attachment
or other legal or equitable proceedings.
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<PAGE> 21
12.3 WITHHOLDING. All Deferrals and payments provided for hereunder
shall be subject to applicable withholding and other deductions as shall be
required of the Company under any applicable local, state or federal law.
12.4 GUARANTY. Plan provisions to the contrary notwithstanding, in
the event any Affiliate that adopts the Plan pursuant to Article XI fails to
make payment of the benefits due under the Plan on behalf of its Members,
whether directly or through the Trust, Allwaste, Inc. shall be liable for and
shall make payment of such benefits due as a guarantor of such entity's
obligations hereunder. The guaranty obligations provided herein shall be
satisfied directly and not through the Trust.
12.5 AMENDMENT AND TERMINATION. The Board may from time to time, in
their discretion, amend, in whole or in part, any or all of the provisions of
the Plan; provided, however, that no amendment may be made that would impair
the rights of a Member with respect to amounts already allocated to his
Account. The Board may terminate the Plan at any time. In the event that the
Plan is terminated, the balance in a Member's Account shall be paid to such
Member or his designated beneficiary in the manner specified by the Plan
Administrator, which may include one lump sum payment in full satisfaction of
all of such Member's or beneficiary's benefits hereunder.
12.6 SEVERABILITY. If any provision of this Plan shall be held
illegal or invalid for any reason, said illegality or invalidity shall not
affect the remaining provisions hereof; instead, each provision shall be fully
severable and the Plan shall be construed and enforced as if said illegal or
invalid provision had never been included herein.
12.7 GOVERNING LAWS. ALL PROVISIONS OF THE PLAN SHALL BE CONSTRUED IN
ACCORDANCE WITH THE LAWS OF TEXAS EXCEPT TO THE EXTENT PREEMPTED BY FEDERAL
LAW.
EXECUTED this ______ day of ___________________________, 1996.
ALLWASTE, INC.
By:
---------------------------------------
Name:
----------------------------------
Title:
---------------------------------
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<PAGE> 1
EXHIBIT 4.2
ALLWASTE, INC.
DEFERRED COMPENSATION PLAN TRUST AGREEMENT
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
ARTICLE I - GENERAL TRUST PROVISIONS . . . . . . . . . . . . . . . . . . . . 2
1.1 ESTABLISHMENT OF TRUST . . . . . . . . . . . . . . . . . . . . 2
1.2 SEPARATE SUB-TRUSTS . . . . . . . . . . . . . . . . . . . . . 2
1.3 TRUST IRREVOCABLE . . . . . . . . . . . . . . . . . . . . . . 2
1.4 NON-ALIENATION . . . . . . . . . . . . . . . . . . . . . . . . 2
1.5 ACCEPTANCE BY TRUSTEE . . . . . . . . . . . . . . . . . . . . 2
ARTICLE II - GENERAL DUTIES OF THE PARTIES . . . . . . . . . . . . . . . . . 3
2.1 GENERAL DUTIES OF THE COMPANY AND THE TRUSTEE . . . . . . . . 3
2.2 ADDITIONAL GENERAL DUTIES OF TRUSTEE . . . . . . . . . . . . . 4
ARTICLE III - INVESTMENT, ADMINISTRATION AND DISBURSEMENT
OF TRUST FUND . . . . . . . . . . . . . . . . . . . . . . . . 4
3.1 INVESTMENT OF TRUST FUND . . . . . . . . . . . . . . . . . . . 4
3.2 VALUATION OF TRUST FUND. . . . . . . . . . . . . . . . . . . . 6
3.3 ADDITIONAL INVESTMENT POWERS OF TRUSTEE . . . . . . . . . . . 6
3.4 ADMINISTRATIVE POWERS OF TRUSTEE . . . . . . . . . . . . . . . 7
3.5 DEALINGS WITH TRUSTEE . . . . . . . . . . . . . . . . . . . . 8
3.6 DISTRIBUTIONS FROM TRUST FUND . . . . . . . . . . . . . . . . 8
ARTICLE IV - SETTLEMENT OF ACCOUNTS . . . . . . . . . . . . . . . . . . . . . 10
ARTICLE V - TAXES, EXPENSES AND COMPENSATION OF TRUSTEE . . . . . . . . . . . 11
5.1 TAXES . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
5.2 EXPENSES AND COMPENSATION . . . . . . . . . . . . . . . . . . 11
ARTICLE VI - FOR PROTECTION OF TRUSTEE . . . . . . . . . . . . . . . . . . . 11
6.1 COMMUNICATIONS WITH THE COMPANY, THE PLAN ADMINISTRATOR
AND THE MEMBERS . . . . . . . . . . . . . . . . . . . . . . . 12
6.2 ADVICE OF COUNSEL . . . . . . . . . . . . . . . . . . . . . . 12
6.3 FIDUCIARY RESPONSIBILITY . . . . . . . . . . . . . . . . . . . 12
ARTICLE VII - INDEMNITY OF TRUSTEE . . . . . . . . . . . . . . . . . . . . . 13
ARTICLE VIII - RESIGNATION AND REMOVAL OF TRUSTEE . . . . . . . . . . . . . . 14
8.1 RESIGNATION OF TRUSTEE . . . . . . . . . . . . . . . . . . . . 14
8.2 REMOVAL OF TRUSTEE . . . . . . . . . . . . . . . . . . . . . . 15
8.3 SUCCESSOR TRUSTEE . . . . . . . . . . . . . . . . . . . . . . 15
</TABLE>
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<PAGE> 3
<TABLE>
<S> <C>
8.4 TRANSFER OF TRUST FUND TO SUCCESSOR . . . . . . . . . . . . . 15
ARTICLE IX - DURATION AND TERMINATION OF TRUST AND AMENDMENT . . . . . . . . 15
9.1 DURATION AND TERMINATION . . . . . . . . . . . . . . . . . . . 15
9.2 DISTRIBUTION UPON TERMINATION . . . . . . . . . . . . . . . . 16
9.3 AMENDMENT . . . . . . . . . . . . . . . . . . . . . . . . . . 16
ARTICLE X - CLAIMS OF COMPANY'S CREDITORS . . . . . . . . . . . . . . . . . . 16
10.1 INSOLVENCY OF COMPANY . . . . . . . . . . . . . . . . . . . . 17
10.2 TRUSTEE'S RESPONSIBILITIES IF COMPANY MAY BE INSOLVENT . . . . 17
10.3 TRUST RECOVERY OF PAYMENTS TO CREDITORS . . . . . . . . . . . 18
ARTICLE XI - ADOPTING ENTITIES . . . . . . . . . . . . . . . . . . . . . . . 18
ARTICLE XII - MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . . . 18
12.1 LAWS OF THE STATE OF TEXAS TO GOVERN . . . . . . . . . . . . . 18
12.2 TITLES AND HEADINGS NOT TO CONTROL . . . . . . . . . . . . . . 18
12.3 CHANGE IN CONTROL . . . . . . . . . . . . . . . . . . . . . . 18
12.4 SUCCESSORS AND ASSIGNS . . . . . . . . . . . . . . . . . . . . 21
12.5 CONTROLLING DOCUMENT . . . . . . . . . . . . . . . . . . . . . 21
</TABLE>
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<PAGE> 4
ALLWASTE, INC.
DEFERRED COMPENSATION PLAN TRUST AGREEMENT
THIS AGREEMENT AND DECLARATION OF TRUST, made this ______ day of
_____________________, 1997, by and between ALLWASTE, INC. and Texas Commerce
Bank, National Association (hereinafter referred to as the "TRUSTEE").
WHEREAS, ALLWASTE, INC. has established the ALLWASTE, INC. DEFERRED
COMPENSATION PLAN (hereinafter referred to as the "PLAN") for the benefit of
certain individuals who are eligible for benefits under the terms of the Plan
(such individuals being referred to herein as the "MEMBERS"), which Plan
provides for the payment of certain deferred compensation benefits (the
"BENEFITS") to the Members and the beneficiaries of the respective Members who
may become entitled to any payments under the terms of the Plan in the event of
the Member's death ("BENEFICIARIES"); and
WHEREAS, other adopting entities may adopt the Plan (such other adopting
entities, if any, along with ALLWASTE, INC. hereinafter referred to as the
"COMPANY," jointly and severally); and
WHEREAS, the Plan contemplates that the Company will pay the entire cost
of the Benefits from its general assets; and
WHEREAS, ALLWASTE, INC. desires to establish the ALLWASTE, INC. DEFERRED
COMPENSATION PLAN TRUST AGREEMENT (the "TRUST") to aid the Company in meeting
the obligations under the Plan; and
WHEREAS, the Trust is intended to be a "grantor trust" with the corpus
and income of the Trust treated as assets and income of the Company for federal
income tax purposes; and
WHEREAS, the Company intends that the assets of the Trust shall at all
times be subject to the claims of general creditors of the Company as provided
in Article X; and
WHEREAS, the Company intends that the existence of the Trust shall not
alter the characterization of the Plan as "unfunded" for purposes of the
Employee Retirement Income Security Act of 1974, as amended ("ERISA"), and
shall not be construed to provide income to any Member prior to actual payment
of Benefits under the Plan; and
WHEREAS, under the Trust, the Trustee covenants that it will hold all
property which it may receive hereunder, IN TRUST, for the uses and purposes
and upon the terms and conditions hereinafter stated;
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<PAGE> 5
NOW, THEREFORE, the parties hereto adopt this Trust Agreement, effective
February 15, 1997, and agree, as follows:
ARTICLE I
GENERAL TRUST PROVISIONS
1.1 ESTABLISHMENT OF TRUST. Allwaste, Inc. hereby adopts the Trust
Agreement, establishing the Trust with the Trustee, consisting of such sums of
money and other property acceptable to the Trustee as from time to time shall
be paid or delivered to the Trustee by the Company. All such money and other
property, all investments and reinvestments made therewith or proceeds thereof
and all earnings and profits thereon, less all payments and charges as
authorized herein, shall constitute the "TRUST FUND." The Trust Fund shall at
all times be subject to the claims of general creditors of the Company as
provided in Article X. No Member or Beneficiary shall have any preferred claim
to, or any beneficial ownership interest in, any assets of the Trust Fund prior
to the time such assets are paid to such Member or Beneficiary as Benefits.
1.2 SEPARATE SUB-TRUSTS. Contrary provisions of the Trust
notwithstanding, except as provided in Article XI, the provisions of the Trust
shall apply separately and equally to Allwaste, Inc. and to each adopting
entity that has entered into this Trust Agreement pursuant to Article XI. Each
Company shall bear the cost of providing Benefits for its own Members and their
Beneficiaries, and the portion of the Trust Fund attributable to the
contributions of each Company shall be available only to provide benefits to
such Company's Members and their Beneficiaries or to satisfy claims of such
Company's Bankruptcy Creditors in the event such Company becomes Insolvent (as
such terms are defined in Section 10.1).
1.3 TRUST IRREVOCABLE. The Trust shall be irrevocable and shall be
held for the exclusive purpose of providing benefits under the Plan to Members
and their Beneficiaries and defraying expenses of the Trust in accordance with
the provisions of this Trust Agreement. Except as provided in Sections 3.6(c)
and 3.6(d) and Articles IX and X hereof, no part of the income or corpus of the
Trust Fund shall be recoverable by or for the Company.
1.4 NON-ALIENATION. No right or interest to receive benefits from
the Trust may be assigned, sold, anticipated, alienated or otherwise
transferred by any Member or Beneficiary.
1.5 ACCEPTANCE BY TRUSTEE. The Trustee accepts the Trust established
under this Trust Agreement on the terms and subject to the provisions set forth
herein, and it agrees to discharge and perform fully and faithfully all of the
duties and obligations imposed upon it under this Trust Agreement.
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<PAGE> 6
ARTICLE II
GENERAL DUTIES OF THE PARTIES
2.1 GENERAL DUTIES OF THE COMPANY AND THE TRUSTEE.
(a) The Company has provided or will provide the Trustee with
a copy of the Plan and shall provide the Trustee with a copy of any amendment
to the Plan promptly upon its adoption. The Plan, as of the date of execution
of this Trust Agreement, is hereby incorporated by reference into and shall
form a part of this Trust Agreement as fully as if set forth herein verbatim.
Any amendment to the Plan shall also be incorporated by reference into and form
a part of this Trust Agreement, effective as of the effective date of such
amendment. Schedule A to this Trust Agreement sets forth the name and mailing
address of each Member entitled to receive Benefits, the Beneficiaries, if any,
designated by each Member, each Member's aggregate balance ("ACCOUNT BALANCE")
in the accounts maintained under the Plan on his behalf, and each Member's
vested rights ("Vested Interest") in his Account Balance. Such Schedule (as
amended from time to time as provided herein) is hereinafter referred to as the
"BENEFIT SCHEDULE." The Company shall be responsible for notifying the Trustee
of any changes in the information set forth on the Benefit Schedule, including,
but not limited to, the addition of new Members and a change in the mailing
address of a Member.
(b) Subject to the provisions of Section 2.1(c), the Trustee
shall keep the Benefit Schedule accurate and current based entirely upon
information provided by the administrator established pursuant to the Plan (the
"PLAN ADMINISTRATOR"), including but not limited to, preparing within 90 days
of the Company's fiscal year end a completely updated Benefit Schedule as of
such fiscal year end in order to permit distributions from the Trust Fund to be
made in accordance with the provisions of Section 3.6. The Company shall keep
accurate books and records with respect to the eligibility of individuals to
participate in the Plan and the Benefits payable under the Plan, and shall
provide such information to the Trustee and any independent third party
referred to in the immediately preceding sentence and shall also provide access
to such books and records at such time or times as the Trustee shall reasonably
request.
(c) If, at any time, the Company fails or refuses to give the
Trustee data or access to such books and records in accordance with Section
2.1(b), the Trustee shall deliver a written request to the Company to provide
access to books and records of the Company and to provide such data as required
in accordance with Section 2.1(b). If the Company fails or refuses to comply
with the Trustee's written request pursuant to the preceding sentence prior to
the expiration of thirty days from the date of delivery thereof by the Trustee,
the Trustee shall, after ten days written notice to the Company, immediately
pay to each Member an amount equal to such Member's Vested Interest in his
Account Balance as set forth on the most recent Benefit Schedule, reduced by
any taxes to be withheld pursuant to Section 3.6. Such payment shall be made
in accordance with the provisions of Section 3.6. For this purpose, the
Company shall be deemed to have complied with the Trustee's written request if,
in the Trustee's judgment, it
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<PAGE> 7
shall have substantially complied at the end of the thirty-day period and is
endeavoring in good faith to complete compliance without delay.
(d) The Plan Administrator shall notify each Member and
Beneficiary of a then deceased Member in writing of any changes in the Benefit
Schedule with respect to such Member or Beneficiary. The Trustee shall notify
all Members and such Beneficiaries of any failure of the Company to provide
information required in this Section 2.1.
(e) It is intended that Benefits payable to Members shall be
determined under the provisions of the Plan and shall be calculated under the
provisions of the Plan as of the date of payment. The Company shall contribute
such amounts to the Trust Fund so as to provide the Benefits under the Plan.
Payment of Benefits shall be based upon the amounts set forth on the Benefit
Schedule only under the circumstances set forth in Section 2.1(c). If the
actual Benefits payable to a Member under the provisions of the Plan exceeds
the amount set forth on the Benefit Schedule which is paid pursuant to Section
2.1(c), the Company shall be liable for payment of the remaining portion of
such Benefits.
(f) Trust provisions to the contrary notwithstanding, the
Company shall have the right at any time, and from time to time, in its sole
discretion, to substitute marketable securities of equal fair market value for
any asset held by the Trust. This right is exercisable by the Company in a
nonfiduciary capacity without the approval or consent of any person in a
fiduciary capacity.
2.2 ADDITIONAL GENERAL DUTIES OF TRUSTEE. The Trustee shall manage,
invest and reinvest the Trust Fund as the Trustee may determine in the exercise
of its fiduciary duties hereunder, consistent with the provisions of Article
III. The Trustee shall collect the income on the Trust Fund, and make
distributions therefrom, all as hereinafter provided.
ARTICLE III
INVESTMENT, ADMINISTRATION AND DISBURSEMENT OF TRUST FUND
3.1 INVESTMENT OF TRUST FUND. The following provisions shall apply
with respect to investment of the Trust Fund:
(a) At any time prior to the occurrence of a Change in Control
(as such term is defined in Section 12.3), the Trustee shall invest and
reinvest the assets of the Trust Fund in accordance with the written
directions received from time to time by the Trustee from the Plan
Administrator. Specifically, but not by way of limitation, the Plan
Administrator may, in its discretion, direct the Trustee to follow the
deemed investment directions of each Member or Beneficiary of a deceased
Member, whether written or telephonic, with respect to a portion of the
Trust Fund assets equal in value to the
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<PAGE> 8
Account Balance maintained under the Plan on behalf of such individual,
within parameters established by, and as agent for, the Plan
Administrator;
(b) To the extent that the Trustee is directed by the Plan
Administrator, the Trustee may invest in securities (including stock or
rights to acquire stock) or obligations issued by the Company;
(c) To the extent that the Trustee is directed by the Plan
Administrator, the Trustee may establish one or more separate investment
accounts within the Trust Fund, each separate account being hereinafter
referred to as an Investment Fund. Except as otherwise provided, the
Trustee shall transfer to each such Investment Fund such portion of the
assets of the Trust Fund as the Plan Administrator directs. The Trustee
shall be under no duty to question, and shall not incur any liability on
account of following, any direction of the Plan Administrator. The
Trustee shall be under no duty to review the investment guidelines,
objectives, and restrictions established, or the specific investment
directions given by the Plan Administrator for any Investment Fund, or
to make suggestions to the Plan Administrator in connection therewith.
To the extent that directions from the Plan Administrator to the Trustee
represent deemed investment elections of the Members, the Trustee shall
have no responsibility for such investment elections and shall incur no
liability on account of investing the assets of the Trust Fund in
accordance with such directions. All interest, dividends, and other
income received with respect to, and any proceeds received from the sale
or other disposition of securities or other property held in, an
Investment Fund shall be credited to and reinvested in such Investment
Fund. All expenses of the Trust Fund which are allocable to a
particular Investment Fund shall be so allocated and charged. The Plan
Administrator may direct the Trustee to eliminate an Investment Fund or
Funds, and the Trustee shall thereupon dispose of the assets of such
Investment Fund and reinvest the proceeds thereof in accordance with the
directions of the Plan Administrator; and
(d) From and after the occurrence of a Change in Control, or
if the Plan Administrator fails to provide the Trustee with such written
directions, the Trustee shall have, with respect to the Trust Fund,
power in its discretion to invest and reinvest such assets in (i) common
and preferred stocks, bonds, notes and debentures (including convertible
stocks and securities but not including any stock, debt instruments, or
other securities of the Company, the Trustee or their affiliates) which
are readily marketable and listed on a United States national securities
exchange or the NASDAQ national market, (ii) interest-bearing deposit
accounts or certificates of deposit maturing within one year after
acquisition thereof, entered into or issued by a United States national
or state bank or trust company having capital, surplus and undivided
profits, at the holding company level, of at least $75 million, (iii)
direct obligations of, and obligations fully guaranteed by, the United
States of America or any agency of the United States of America which is
backed by the full faith and credit of the United States of America (so
long as such obligations shall mature within one year after acquisition
thereof), (iv) any
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common, collective or commingled fund, including a fund maintained by
the Trustee, established and maintained primarily for the purpose of
investing and reinvesting in assets of the type described in (i), (ii)
and (iii) above, and (v) insurance contracts issued by one or more
insurance companies. Further, notwithstanding the provisions of the
preceding sentence, after the occurrence of a Change in Control or in
the event the Plan Administrator fails to provide the Trustee with
written directions pursuant to the first sentence of this Section, the
Trustee shall have the power in its discretion to retain, maintain,
continue, sell, or take any other actions relative to any assets then
held in the Trust Fund (including, without limitation, to take actions
in accordance with deemed investment directions obtained directly from a
Member or Beneficiary of a deceased Member with respect to a portion of
the Trust Fund assets equal in value to the Account Balance maintained
under the Plan on behalf of such individual).
3.2 VALUATION OF TRUST FUND. As soon as practicable after the
Company's fiscal year end and as of such other dates as may be specified by
the Company or the Plan Administrator, the Trustee shall report to the Company
and the Plan Administrator the assets held in the Trust Fund as of such day and
shall determine and include in such report the fair market value as of such day
of each such asset. In determining such fair market values, the Trustee shall
use such market quotations and other information as are available to it and may
in its discretion be appropriate. The report of any such valuation shall not
constitute a representation by the Trustee that the amounts reported as fair
market values would actually be realized upon the liquidation of the Trust
Fund. The Trustee shall not be accountable to the Company or to any other
person on the basis of any such valuation, but its accountability shall be in
accordance with the provisions of Article IV hereof.
3.3 ADDITIONAL INVESTMENT POWERS OF TRUSTEE. Subject to the
provisions of Sections 3.1, 3.6 and 9.2 hereof, the Trustee shall have, with
respect to the Trust Fund, the power in its discretion:
(a) To retain any property at any time received by it;
(b) To sell, exchange, convey, transfer or dispose of, and to
grant options for the purchase or exchange with respect to, any property
at any time held by it;
(c) To register and carry any securities or any other property
in the name of the Trustee, or in the name of the nominee of the Trustee
(or to hold any such property unregistered) without increasing or
decreasing the fiduciary liability of the Trustee, and to exercise any
option, right or privilege to convert any convertible securities,
including shares or fractional shares of the Trustee so long as the
conversion privilege is offered pro rata to all shareholders;
(d) To cause any securities to be held in book-entry or in
bearer form;
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(e) To hold uninvested, without liability for interest
thereon, any moneys received by it until the same shall be invested or
disbursed; and
(f) To hold property for investment that may be unproductive
of income.
3.4 ADMINISTRATIVE POWERS OF TRUSTEE. The Trustee shall have the
power in its discretion:
(a) To exercise all voting rights with respect to the shares
of stock held in the Trust Fund and to grant proxies, discretionary or
otherwise; provided, however, voting rights with respect to stock issued
by the Company or its affiliates shall be exercised by the Plan
Administrator prior to the occurrence of a Change in Control;
(b) To cause any shares of stock to be registered and held in
the name of one or more of its nominees, or one or more nominees of any
system for the central handling of securities, without increase or
decrease of liability;
(c) To collect and receive any and all money and other
property due to the Trust Fund and to give full discharge therefor;
(d) Subject to the provisions of Section 3.6 hereof: to
settle, compromise or submit to arbitration any claims, debts or damages
due or owing to or from the Trustee; to commence or defend suits or
legal proceedings to protect any interest of the Trust; and to represent
the Trust in all suits or legal proceedings in any court or before any
other body or tribunal;
(e) To organize under the laws of any state a corporation or
limited liability company for the purpose of acquiring and holding title
to any property which it is authorized to acquire under this Trust
Agreement and to exercise with respect thereto any or all of the powers
set forth in this Trust Agreement;
(f) To determine how all receipts and disbursements shall be
credited, charged or apportioned as between income and principal;
(g) To determine the amount and time of Benefit payments in
accordance with directions from the Plan Administrator or its delegates
and in compliance with the provisions of Section 3.6;
(h) To employ and compensate such attorneys, counsel, brokers
or other agents or employees and to delegate to them such of the duties,
rights and powers of the Trustee as may be deemed advisable in handling
and administering the Trust; and
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(i) Generally to do all acts, whether or not expressly
authorized, which the Trustee may deem necessary or desirable for the
protection of the Trust Fund.
3.5 DEALINGS WITH TRUSTEE. Persons dealing with the Trustee shall be
under no obligation to see to the proper application of any money paid or
property delivered to the Trustee or to inquire into the Trustee's authority as
to any transaction.
3.6 DISTRIBUTIONS FROM TRUST FUND.
(a) Except as set forth in Section 3.6(c), Section 3.6(d),
Section 9.2 and Article X hereof, distributions from the Trust Fund shall be
made by the Trustee to the Members and Beneficiaries at the times and in the
amounts set forth in the Plan and, to the maximum extent permitted by
applicable law, the Trustee shall be fully protected in so doing. Any amounts
so paid shall be reduced by the amount of any federal, state, or local income
or other taxes that may be required by law to be withheld or paid by the
Trustee and the Trustee shall withhold, pay and report such amounts to the
appropriate governmental authorities; provided, that the Company shall
withhold, pay and report any FICA, or FUTA or other applicable taxes; and,
provided, further, that the Company, the Plan Administrator, the Members, and
the Beneficiaries shall provide the Trustee with all of the information
necessary for the Trustee to determine the amount of such taxes required to be
withheld or paid by the Trustee and the Trustee shall be fully protected in
relying upon such information. Notwithstanding any provision of this Trust
Agreement to the contrary, the Company shall be obligated to pay the Benefits.
To the extent that the Trust Fund is not sufficient to pay any Benefit when
due, the Company shall pay such Benefit directly. In the event Benefits are
due to more than one Member or Beneficiary on the same date and the Trust Fund
is not sufficient to pay all such Benefits, the Trust Fund shall be applied pro
rata among such Members and Beneficiaries on the basis of the Benefits due to
be paid such individuals on such date, as determined by the Plan Administrator
or its delegates. Nothing in this Trust Agreement shall relieve the Company of
its liabilities to pay Benefits except to the extent such liabilities are met
by application of Trust Fund assets.
(b) Prior to the occurrence of a Change in Control, the Plan
Administrator shall direct the Trustee in writing as to the time and amount of
Benefits to be distributed to the Members and Beneficiaries. From and after
the occurrence of a Change in Control, a Member or Beneficiary who believes
that he or she is entitled to Benefits may apply in writing directly to the
Trustee for payment of such Benefits. Such application shall advise the
Trustee of the circumstances which entitle such Member or Beneficiary to
payment of such Benefits. The Trustee shall, in such case, reach its own
independent determination as to the Member's or Beneficiary's entitlement to
Benefits, even though the Trustee may be informed from another source
(including the Company or the Plan Administrator) that payments are not due
under the Plan. If the Trustee so desires, it may, in its sole discretion,
make such additional inquiries and/or take such additional measures as it deems
necessary in order to enable it to determine whether Benefits are due and
payable, including, but not limited to, interviewing appropriate
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<PAGE> 12
persons, requesting affidavits, soliciting oral or written testimony under
oath, or holding a hearing or other proceeding. After the occurrence of a
Change in Control, the Trustee shall determine whether Benefits are payable as
promptly as possible.
(c) If the Net Fair Market Value of the Trust Assets (as such
term is hereinafter defined) exceeds the aggregate Account Balances for all
Members and Beneficiaries, the Plan Administrator may, at such time or times,
direct the Trustee in writing to distribute to the Company cash held by the
Trustee as part of the Trust Fund in an amount equal to the Benefits accrued
under the Plan that have been forfeited under the terms of the Plan. As soon
as practicable after receipt of such a direction and, if such direction is
received by the Trustee after the occurrence of a Change in Control, the
Trustee's independent determination that such benefits have, in fact, been
forfeited in accordance with the terms of the Plan, the Trustee shall
distribute such amount to the Company.
(d) At any time and from time to time prior to the occurrence
of a Change in Control, the Company may apply in writing to the Trustee for a
distribution by the Trustee to the Company of assets held by the Trustee as
part of the Trust Fund ("TRUST ASSETS") in an amount (the "REFUND AMOUNT")
equal to or less than the difference, if any, between (i) the Net Fair Market
Value of the Trust Assets (as such term is hereinafter defined) as of the last
day of the month coincident with or immediately preceding the date of such
application, and (ii) 105% of the aggregate Account Balances for all Members
and Beneficiaries as of such date. Such application shall advise the Trustee
of the manner in which the Refund Amount was calculated. Upon the receipt of
such an application from the Company, the Trustee shall reach its own
independent determination as to the Company's entitlement to the Refund Amount,
even though the Trustee may be informed from another source (including a
Member) that the Company is not entitled to the Refund Amount. If the Trustee
so desires, it may, in its sole discretion, make such additional inquiries
and/or take such additional measures as it deems necessary in order to enable
it to determine whether the Company is entitled to the Refund Amount,
including, but not limited to, interviewing appropriate persons, requesting
affidavits, soliciting oral or written testimony under oath, or engaging such
independent third parties as the Trustee may deem necessary to assist in making
such determination. The Trustee shall determine whether the Company is
entitled to all or any portion of the Refund Amount as promptly as possible.
If the Trustee determines that the Company is entitled to all or any portion of
the Refund Amount, then the Trustee shall distribute such amount to the Company
in cash or in kind as determined by the Trustee in its sole discretion. As
used herein, the term "NET FAIR MARKET VALUE OF THE TRUST ASSETS" shall mean
the fair market value of the Trust Assets, as determined by the Trustee in its
sole discretion, reduced by all liabilities of the Trust, whether or not such
liabilities are secured by any or all of the Trust Assets, other than
liabilities to Members or Beneficiaries under the Plan. In determining such
fair market value, the Trustee shall use such market quotations and other
information as are available to it and may in its discretion be appropriate;
provided, however, that the fair market value of any life insurance contract
which constitutes a portion of the Trust Assets shall be its net cash surrender
value. The determination of the Net Fair Market Value of the Trust Assets by
the Trustee shall not constitute a representation by the
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<PAGE> 13
Trustee that the amounts reported as fair market values would actually be
realized upon the liquidation of the Trust Assets. The Trustee shall not be
accountable to the Company or to any other person, including the Members or
Beneficiaries, on the basis of any such valuation except as otherwise provided
in this Trust Agreement.
(e) The Trustee shall not itself commence any legal action,
whether in the nature of an interpleader action, request for declaratory
judgment or otherwise, requesting a court to make a determination under Section
3.6(a), (b), (c) or (d) hereof in the Trustee's stead without first using its
best efforts to make such determination.
(f) Notwithstanding any other provision of this Trust
Agreement, if any amounts held in the Trust are found in a "determination"
(within the meaning of Section 1313(a) of the Internal Revenue Code of 1986, as
amended) to have been includible in gross income of a Member or Beneficiary
prior to payment of such amounts from the Trust, the Trustee shall, as soon as
practicable, pay such amounts to such Member or Beneficiary, as applicable,
(but not in excess of such Member's or Beneficiary's Vested Interest in his
Account Balance at the time of such payment). For purposes of this Section
3.6, the Trustee shall be entitled to rely on an affidavit by a Member or
Beneficiary, as applicable, and a copy of the determination to the effect that
a determination described in the preceding sentence has occurred.
ARTICLE IV
SETTLEMENT OF ACCOUNTS
The Trustee shall keep full accounts of all of its receipts and
disbursements. Its books and records with respect to the Trust Fund shall be
open to inspection by the Company, any Member or any Beneficiary of a deceased
Member or their representatives at all times during business hours of the
Trustee. Within sixty days after the Company's fiscal year end, or any
termination of the duties of the Trustee, the Trustee shall prepare, sign and
mail to the Company and the Plan Administrator an account of its acts and
transactions as Trustee hereunder. If, within sixty days after the mailing of
the account or any amended account, the Company and the Plan Administrator have
not filed with the Trustee notice of any objection to any act or transaction of
the Trustee, the account or amended account shall become an account stated. If
any objection has been filed, and if the objecting party is satisfied that it
should be withdrawn or if the account is adjusted to the objecting party's
satisfaction, the objecting party shall in writing filed with the Trustee
signify its approval of the account and it shall become an account stated.
When an account becomes an account stated, such account shall be finally
settled, and the Trustee shall be completely discharged and released, as if
such account had been settled and allowed by a judgment or decree of a state or
federal court of competent jurisdiction in an action or proceeding in which the
Trustee, the Company and the Plan Administrator were parties. The Trustee, the
Company or the Plan Administrator shall have the right to apply at any time to
a state or federal court of competent jurisdiction for judicial settlement of
any account of the Trustee not previously settled as hereinabove provided. In
any such action or proceeding it shall
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be necessary to join as parties the Trustee, the Company and the Plan
Administrator and any judgment or decree entered therein shall be conclusive
upon all such parties.
ARTICLE V
TAXES, EXPENSES AND COMPENSATION OF TRUSTEE
5.1 TAXES. The Company agrees that all income, deductions and
credits of the Trust Fund belong to it as owner for income tax purposes and
will be included on the Company's income tax returns. The Company shall from
time to time pay taxes (references in this Trust Agreement to the payment of
taxes shall include interest and applicable penalties) of any and all kinds
whatsoever which at any time are lawfully levied or assessed upon or become
payable in respect of the Trust Fund, the income or any property forming a part
thereof, or any security transaction pertaining thereto. To the extent that
any taxes levied or assessed upon the Trust Fund are not paid by the Company or
contested by the Company pursuant to the last sentence of this Section 5.1, the
Trustee shall pay such taxes out of the Trust Fund and the Company shall upon
demand by the Trustee deposit into the Trust Fund an amount equal to the amount
paid from the Trust Fund to satisfy such tax liability. If requested by the
Company, the Trustee shall, at Company expense, contest the validity of such
taxes in any manner deemed appropriate by the Company or its counsel, but only
if it has received an indemnity bond or other security satisfactory to it to
pay any expenses of such contest. Alternatively, the Company may itself
contest the validity of any such taxes, but any such contest shall not affect
the Company's obligation to reimburse the Trust Fund for taxes paid from the
Trust Fund.
5.2 EXPENSES AND COMPENSATION. The Trustee shall be paid
compensation by the Company as the Company and the Trustee may from time to
time agree. The Trustee shall be reimbursed by the Company for its reasonable
expenses of management and administration of the Trust, including reasonable
compensation of counsel and any agent engaged by the Trustee to assist it in
such management and administration. In the event that the Company shall fail
or refuse to pay such compensation or make such reimbursement within sixty days
of demand, the Trustee may satisfy such obligations out of the assets of the
Trust Fund; in that event, the Company shall immediately upon demand by the
Trustee deposit into the Trust Fund a sum equal to the amount paid by the Trust
Fund for such fees and expenses.
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ARTICLE VI
FOR PROTECTION OF TRUSTEE
6.1 COMMUNICATIONS WITH THE COMPANY, THE PLAN ADMINISTRATOR AND THE
MEMBERS.
(a) The Company shall certify to the Trustee the name or names
of any person or persons authorized to act for the Company and for the Plan
Administrator. Such certification shall be signed by the President or a Vice
President and the Secretary or an Assistant Secretary of the Company. Until
the Company notifies the Trustee, in a similarly signed notice, that any such
person is no longer authorized to act for the Company or for the Plan
Administrator, as applicable, the Trustee may continue to rely upon the
authority of such person.
(b) The Trustee may rely upon any certificate, notice or
direction of the Company or the Plan Administrator which the Trustee reasonably
believes to have been signed by a duly authorized officer or agent of the
Company or the Plan Administrator, as applicable.
(c) Communications to the Trustee shall be sent in writing to
its principal address, Attention: Legal Department, or to such other address
as the Trustee may specify. No communication shall be binding upon the Trust
Fund or the Trustee until it is received by the Trustee and unless it is in
writing and signed by an authorized person.
(d) Communications to the Company shall be sent in writing to
the Company at 5151 San Felipe, Suite 1600, Houston, Texas 77056, Attention:
General Counsel, or to such other address as the Company may specify in writing
to the Trustee. Communications to the Plan Administrator shall be sent in
writing to the Company's address, Attention: Chief Administrative Officer.
Communications to a Member or Beneficiary shall be sent in writing to the
address of such person as stated on the Benefit Schedule, or to such other
address as such person may specify in writing to the Trustee. No communication
shall be binding upon the Company, the Plan Administrator, or a Member or
Beneficiary until it is received by such person.
6.2 ADVICE OF COUNSEL. The Trustee may consult with any legal
counsel with respect to the construction of this Trust Agreement, its duties
hereunder or any act which it proposes to take or omit, and shall not be liable
for any action taken or omitted in good faith pursuant to such advice.
Expenses of such counsel shall be deemed to be expenses of management and
administration of the Trust within the meaning of Section 5.2 hereof.
6.3 FIDUCIARY RESPONSIBILITY.
(a) The Trustee shall discharge its duties under this Trust
Agreement in effectuating the Plan in a manner consistent with the objectives
of this Trust Agreement and the Plan. The Trustee shall not be liable for any
loss sustained by the Trust Fund by reason of the purchase, retention, sale or
exchange of any investment in good faith and in accordance with the provisions
of this Trust Agreement. The Trustee shall have no responsibility or liability
for any failure of the Company to make contributions to the Trust Fund or for
any insufficiency of assets in the Trust Fund to pay Benefits when due. The
Trustee shall not be liable hereunder for any act taken or omitted to be taken
in good faith, except for its own negligence or misconduct.
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<PAGE> 16
(b) The Trustee shall not be responsible for any act or
failure to act of another fiduciary except to the extent otherwise provided by
law.
(c) No bond shall be required of the Trustee unless otherwise
required by law.
(d) The Trustee shall have no responsibility to negotiate any
insurance contracts respecting the Plan and Trust, nor shall the Trustee have
any responsibility to conduct any due diligence as to such insurance contracts.
(e) The Trustee's duties and obligations shall be limited to
those expressly imposed upon it by this Trust Agreement.
(f) The Company at any time may employ as agent (to perform
any act, keep any records or accounts, or make any computations required of the
Company or the Plan Administrator by this Trust Agreement or the Plan) the
individual, corporation or association serving as Trustee hereunder. Nothing
done by said individual, corporation or association as such agent shall affect
its responsibilities or liability as Trustee hereunder.
ARTICLE VII
INDEMNITY OF TRUSTEE
The Company hereby indemnifies and holds the Trustee harmless from and
against any and all losses, damages, costs, expenses or liabilities (herein,
"LIABILITIES"), including reasonable attorneys' fees and other costs of
litigation, to which the Trustee may become subject pursuant to, arising out
of, occasioned by, incurred in connection with or in any way associated with
this Trust Agreement, including the acts or omissions of other fiduciaries,
except for any act or omission constituting negligence or misconduct of the
Trustee. If one or more Liabilities shall arise, or if the Company fails to
indemnify the Trustee as provided herein, or both, then the Trustee may engage
counsel of the Trustee's choice, but at the Company's expense, either to
conduct the defense against such Liabilities or to conduct such actions as may
be necessary to obtain the indemnity provided for herein, or to take both such
actions. The Trustee shall notify the Company within fifteen days after the
Trustee has so engaged counsel of the name and address of such counsel. If the
Trustee shall be entitled to indemnification by the Company pursuant to this
Article VII and the Company shall not provide such indemnification upon demand,
the Trustee may apply assets of the Trust Fund in full satisfaction of the
obligations for indemnity by the Company, and any legal proceeding by the
Trustee against the Company for such indemnification shall be on behalf of the
Trust.
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ARTICLE VIII
RESIGNATION AND REMOVAL OF TRUSTEE
8.1 RESIGNATION OF TRUSTEE. The Trustee may resign upon sixty days'
prior written notice to the Board of Directors of Allwaste, Inc. (the "BOARD"),
the Plan Administrator, each Member and each Beneficiary of a deceased Member,
except that any such resignation shall not be effective until the Board have
appointed in writing a successor trustee, which must be a bank, trust company,
or an individual, and such successor has accepted the appointment in writing;
provided, however, that if such appointment is to become effective at any time
after the occurrence of a Change in Control, then the consent of a majority of
the Members to the appointment of such successor trustee must be obtained. For
all purposes of this Trust Agreement where the consent of a majority of the
Members is required, the determination of majority consent shall be based upon
receiving the consent of any combination of Members whose sum of Account
Balances as of the time of determination is greater than fifty percent of the
sum of Account Balances for all Members at such time, rather than upon
receiving the consent of a majority of the number of Members. For purposes of
this determination, Beneficiaries of deceased Members shall be considered
Members. The Board shall make a good faith effort, following receipt of notice
of resignation from the Trustee, to find and appoint a successor Trustee who
will adhere to the obligations imposed on such successor under the terms of
this Trust Agreement, and in particular, but without limitation, the obligation
to exercise judgment independent of the Company in the circumstances described
in Section 3.6 hereof. The appointment of a successor trustee shall also be
conditioned upon obtaining from such successor a written statement that the
successor has read the Trust Agreement and understands its obligations
thereunder. If the consent of a majority of the Members is required for the
appointment of a successor Trustee, then the Trustee shall be responsible for
securing such Member consents in a timely fashion and, unless ordered by a
court of competent jurisdiction, shall not reveal to the Board, the Plan
Administrator or any other person any information concerning such consents,
except whether the required majority has been achieved. Any notice sent to
Members by the Trustee canvassing the Members as to their consent to a
successor trustee, shall include the name and address of the proposed successor
trustee. Any consent of a Member required under this Section 8.1 shall be
deemed given if no written objection is received by the Trustee from such
Member within fourteen days after request for such consent is sent postpaid by
United States registered or certified mail with return receipt requested to
such Member. Provisions of the Trust Agreement to the contrary
notwithstanding, if the Trustee gives notice of resignation to the Plan
Administrator and no successor Trustee has been appointed within sixty days of
receipt of such written notice, the compensation of the Trustee then in effect
shall increase by 50%, effective as of the lapse of such sixty-day time period.
8.2 REMOVAL OF TRUSTEE. The Board may remove the Trustee upon sixty
days' prior written notice to the Trustee, the Plan Administrator, each Member
and each Beneficiary of a deceased Member, except that any such removal shall
not be effective until the close of such notice period and (a) delivery by the
Board to the Trustee of an instrument in writing appointing
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<PAGE> 18
a successor trustee meeting the requirements of Section 8.1, and (b) an
acceptance of such appointment in writing executed by such successor.
Notwithstanding the provisions of the preceding sentence, if such appointment
of a successor trustee is to become effective at any time after the occurrence
of a Change in Control, then the removal of the Trustee and the appointment of
a successor trustee shall not be effective until the Trustee has received the
consent of a majority of the Members (as determined in accordance with the
provisions of Section 8.1 hereof) to such removal and such appointment. Upon
the receipt by the Trustee of a written notice of removal, the Trustee shall be
responsible for securing the Member consents (if such consents are required
pursuant to the preceding provisions of this Section 8.2) in a timely fashion
and, unless ordered by a court of competent jurisdiction, shall not reveal to
the Board, the Plan Administrator or any other person any information
concerning such consents, except whether the required majority has been
achieved. Any notice sent to Members by the Trustee canvassing the Members as
to their consent to removal of the Trustee and the appointment of a proposed
successor trustee, shall include the name and address of the proposed successor
trustee. Any consent of a Member required under this Section 8.2 shall be
deemed given if no written objection is received by the Trustee from such
Member within fourteen days after request for such consent is sent postpaid by
United States registered or certified mail with return receipt requested to
such Member.
8.3 SUCCESSOR TRUSTEE. All of the provisions set forth herein with
respect to the Trustee shall relate to each successor with the same force and
effect as if such successor had been originally named as the Trustee hereunder.
8.4 TRANSFER OF TRUST FUND TO SUCCESSOR. Upon the resignation or
removal of the Trustee and appointment of a successor, the Trustee shall
transfer and deliver the Trust Fund to such successor. Following the effective
date of the appointment of the successor, the Trustee's responsibility
hereunder shall be limited to managing the assets in its possession and
transferring such assets to the successor, and settling its final account.
Neither the Trustee nor the successor shall be liable for the acts of the
other.
ARTICLE IX
DURATION AND TERMINATION OF TRUST AND AMENDMENT
9.1 DURATION AND TERMINATION. The Trust is hereby declared to be
irrevocable and shall continue until (a) all payments required by Section 3.6
have been made or (b) until the Trust Fund contains no assets and retains no
claims to recover assets from the Company or any other person or entity,
whichever shall first occur. Notwithstanding the preceding provisions of this
Section 9.1, unless earlier terminated, the Trust shall terminate twenty-one
(21) years after the death of the last to die of all of the Members and their
issue living on the date of execution of this Trust Agreement; provided,
however, that if at that time the Trust may be continued in force without
violating the rule against perpetuities or any other law of the State of Texas,
then the Trust shall remain in effect until otherwise terminated as provided
hereunder.
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9.2 DISTRIBUTION UPON TERMINATION. If this Trust terminates under
the provisions of Section 9.1, the Trustee shall liquidate the Trust Fund and,
after its final account has been settled as provided in Article IV, shall
distribute to the Company the net balance of any assets of the Trust remaining
after all expenses have been paid and all Benefits, whether or not due and
payable under the terms of the Plan on the date of such termination, have been
paid to the Members and Beneficiaries. Upon making such distribution, the
Trustee shall be relieved from all further liability. The powers of the
Trustee hereunder shall continue so long as any assets of the Trust Fund remain
in its hands.
9.3 AMENDMENT. The Board may from time to time amend, in whole or in
part, any or all of the provisions of this Trust Agreement; provided, however,
that (a) no amendment will be made to this Trust Agreement or the Plan which
will cause this Trust Agreement, the Plan or the assets of the Trust Fund to be
governed by or subject to Part 2, 3 or 4 of Title I of ERISA, (b) no such
amendment shall adversely affect any Benefits to the date of such amendment in
respect of any Member or Beneficiary or the amount of assets of the Trust Fund
available to pay such Benefits, (c) no such amendment shall purport to alter
the irrevocable character of the Trust established under this Trust Agreement,
(d) no such amendment shall increase the duties or responsibilities of the
Trustee unless the Trustee consents thereto in writing, and (e) after the
occurrence of a Change in Control, no amendment will be made to this Trust
Agreement without the consent of a majority of the Members (as determined
pursuant to the provisions of Section 8.1 hereof). Upon receipt of a request
from the Board for an amendment which requires the consent of a majority of the
Members, the Trustee shall be responsible for securing Member consents in a
timely fashion, and unless ordered by a court of competent jurisdiction, shall
not reveal to the Board, the Plan Administrator or any other person any
information concerning such consents, except whether the required majority has
been achieved. Any consent of a Member required under this Section 9.3 shall
be deemed given if no written objection is received by the Trustee from such
Member within fourteen days after request for such consent is sent postpaid by
United States registered or certified mail with return receipt requested to
such Member. This Trust Agreement may be amended, to the extent permitted in
this Section 9.3, by an instrument in writing executed on behalf of Allwaste,
Inc. by its authorized representatives, consents to which instrument have been
obtained from the required majority of Members if such consents are required.
ARTICLE X
CLAIMS OF COMPANY'S CREDITORS
10.1 INSOLVENCY OF COMPANY. As used in this Article X, the Company
shall be deemed to be "INSOLVENT" if (a) the Company is unable to pay its debts
as they come due, or (b) the Company is subject to a pending proceeding as a
debtor under the United States Bankruptcy Code (or any successor federal
statute). In the event that the Company shall be deemed Insolvent, the assets
of the Trust Fund shall be held for the benefit of the general creditors of the
Company (hereinafter referred to as "BANKRUPTCY CREDITORS").
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10.2 TRUSTEE'S RESPONSIBILITIES IF COMPANY MAY BE INSOLVENT.
(a) If at any time the Company or 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 within thirty days independently determine
whether the Company is Insolvent and, pending such determination, the Trustee
shall discontinue any payment of Benefits under the Plan and this Trust
Agreement and shall hold the Trust Fund for the benefit of Bankruptcy
Creditors. As a condition of being a Member of the Plan and this Trust
Agreement, each Member hereby waives his priority credit position, if any,
under applicable state law. The Trustee shall resume payments of Benefits
under the Plan and this Trust Agreement in accordance with Section 3.6 hereof
only after the Trustee has determined that the Company is not Insolvent (or is
no longer Insolvent, if the Trustee initially determined the Company to be
Insolvent) or upon receipt of an order of a court of competent jurisdiction
requiring such payments. The Company, by its Chief Executive Officer and its
Board, shall further be obligated to give the Trustee prompt notice in writing
in the event that the Company becomes Insolvent, with the same consequences as
provided in the preceding two sentences. In determining whether the Company is
Insolvent, the Trustee may rely conclusively upon, and shall be protected in
relying upon, court records showing that the Company is Insolvent, or a current
report or statement from a nationally recognized credit reporting agency
showing that the Company is Insolvent. For purposes of this Trust Agreement,
knowledge and information concerning the Company which is not in the possession
of the Trustee, or its employees, shall not be imputed to the Trustee. The
Trustee shall have no duty or obligation to ascertain whether the Company is
Insolvent unless and until it receives a writing that the Company is Insolvent
as described in the first or third sentence of this Section 10.2(a).
(b) If the Trustee determines that the Company is Insolvent,
the Trustee shall hold the assets of the Trust Fund for the benefit of the
Bankruptcy Creditors, and shall disburse the assets of the Trust Fund to
satisfy such claims as a court of competent jurisdiction shall direct.
(c) If the Trustee discontinues payment of Benefits pursuant
to Section 10.2(a) and subsequently resumes such payments, the first payment to
a Member or Beneficiary following such discontinuance shall include an
aggregate amount equal to the difference between the payments that would have
been made to such Member or Beneficiary, as applicable, under this Trust
Agreement but for this Section 10.2 and the aggregate payments actually made to
such Member or Beneficiary, as applicable, by the Company pursuant to the Plan
during any such period of discontinuance. In the event that upon resumption of
payments pursuant to the preceding sentence, the assets of the Trust Fund are
insufficient to pay Benefits in full, Benefit payments to the affected Members
and Beneficiaries shall be prorated so as to equitably apportion the assets of
the Trust Fund among all affected Members and Beneficiaries in proportion to
their Benefits.
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10.3 TRUST RECOVERY OF PAYMENTS TO CREDITORS. In the event that at
any time an amount is paid from the Trust Fund to Bankruptcy Creditors of the
Company, the Trustee shall demand that the Company deposit into the Trust Fund
a sum equal to the amount paid by the Trust Fund to such Bankruptcy Creditors
and, if such payment is not made within ninety days of such demand, the Trustee
shall take such action as it deems prudent or advisable to recover payment.
ARTICLE XI
ADOPTING ENTITIES
It is contemplated that other corporations, associations, partnerships
or proprietorships that have adopted the Plan may adopt this Trust Agreement
and thereby become the Company. Any such entity, whether or not presently
existing, may become a party hereto by appropriate action of its officers
without the need for approval of its board of directors or noncorporate
counterpart or of the Board. The provisions of the Trust Agreement shall apply
separately and equally to each Company and its Members and their Beneficiaries
in the same manner as is expressly provided for Allwaste, Inc. and its Members
and their Beneficiaries, except that (a) the power to appoint or otherwise
affect the Trustee and the power to amend the Trust Agreement shall be
exercised by the Board alone, and (b) the determination of whether a Change in
Control has occurred shall be based solely on Allwaste, Inc.
ARTICLE XII
MISCELLANEOUS
12.1 LAWS OF THE STATE OF TEXAS TO GOVERN. This Trust Agreement and
the Trust hereby created shall be construed and regulated by the laws of the
State of Texas.
12.2 TITLES AND HEADINGS NOT TO CONTROL. The titles to Articles and
headings of Sections in this Trust Agreement are placed herein for convenience
of reference only and, in case of any conflict, the text of this Trust
Agreement, rather than such titles or headings, shall control.
12.3 CHANGE IN CONTROL. As used in this Trust Agreement, the term
"CHANGE IN CONTROL" shall mean the occurrence of one or more of the following
events:
(a) The acquisition by any individual, entity or group (within
the meaning of Section 13(d)(3) or 14(d)(2) of the Securities Exchange
Act of 1934, as amended (the "EXCHANGE ACT")) (a "PERSON") of beneficial
ownership (within the meaning of Rule 13d-3 promulgated under the
Exchange Act) of 30% or more of either (1) the then outstanding shares
of Common Stock of Allwaste, Inc. (the "OUTSTANDING COMPANY
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<PAGE> 22
COMMON STOCK") or (2) the combined voting power of the then outstanding
voting securities of Allwaste, Inc. entitled to vote generally in the
election of directors (the "OUTSTANDING COMPANY VOTING SECURITIES");
provided, however,that the following acquisitions shall not constitute a
Change in Control: (i) any acquisition directly from Allwaste, Inc.
(excluding an acquisition by virtue of the exercise of a conversion
privilege), (ii) any acquisition by Allwaste, Inc., (iii) any
acquisition by any employee benefit plan(s) (or related trust(s))
sponsored or maintained by Allwaste, Inc. or any corporation controlled
by Allwaste, Inc., or (iv) any acquisition by any corporation pursuant
to a reorganization, merger or consolidation, if, immediately following
such reorganization, merger or consolidation, the conditions described
in clauses (1), (2) and (3) of subsection (c) below are satisfied; or
(b) Individuals who, as of the date hereof, constitute the
entire Board of Directors of Allwaste, Inc. (the "INCUMBENT BOARD")
cease for any reason to constitute at least a majority of the Board of
Directors of Allwaste, Inc.; provided, however, that any individual
becoming a director subsequent to the date hereof whose election, or
nomination for election by Allwaste, Inc.'s stockholders, was approved
by a vote of at least a majority of the directors then comprising the
Incumbent Board shall be considered as though such individual were a
member of the Incumbent Board, but excluding, for this purpose, any such
individual whose initial assumption of office occurs as a result of
either (1) an actual or threatened election contest (as such terms are
used in Rule 14a-11 of Regulation 14A promulgated under the Exchange
Act), or an actual or threatened solicitation of proxies or consents by
or on behalf of a Person other than the Board of Directors of Allwaste,
Inc. or (2) a plan or agreement to replace a majority of the members of
the Board of Directors of Allwaste, Inc. then comprising the Incumbent
Board; or
(c) Approval by the stockholders of Allwaste, Inc. of a
reorganization, merger or consolidation, in each case unless,
immediately following such reorganization, merger or consolidation, (1)
more than 60% of, respectively, the then outstanding shares of common
stock of the corporation resulting from such reorganization, merger or
consolidation (including, without limitation, a corporation which as a
result of such transaction owns Allwaste, Inc. through one or more
subsidiaries) and the combined voting power of the then outstanding
voting securities of such corporation entitled to vote generally in the
election of directors is then beneficially owned, directly or
indirectly, by all or substantially all of the individuals and entities
who were the beneficial owners, respectively, of the Outstanding Company
Common Stock and Outstanding Company Voting Securities immediately prior
to such reorganization, merger or consolidation in substantially the
same proportions as their ownership immediately prior to such
reorganization, merger or consolidation, of the Outstanding Company
Common Stock and Outstanding Company Voting Securities, as the case may
be, (2) no Person (excluding Allwaste, Inc., any employee benefit
plan(s) (or related trust(s)) of Allwaste, Inc. and/or its subsidiaries
or any Person beneficially owning, immediately prior to such
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<PAGE> 23
reorganization, merger or consolidation, directly or indirectly, 30% or
more of the Outstanding Company Common Stock or Outstanding Company
Voting Securities, as the case may be) beneficially owns, directly or
indirectly, 30% or more of, respectively, the then outstanding shares of
common stock of the corporation resulting from such reorganization,
merger or consolidation or the combined voting power of the then
outstanding voting securities of such corporation entitled to vote
generally in the election of directors, and (3) at least a majority of
the members of the board of directors of the corporation resulting from
such reorganization, merger or consolidation were members of the
Incumbent Board at the time of the execution of the initial agreement
providing for such reorganization, merger or consolidation; or
(d) Approval by the stockholders of Allwaste, Inc. of (1) a
complete liquidation or dissolution of Allwaste, Inc. or (2) the sale or
other disposition of all or substantially all of the assets of Allwaste,
Inc., other than to a corporation, with respect to which immediately
following such sale or other disposition, (A) more than 60% of,
respectively, the then outstanding shares of common stock of such
corporation and the combined voting power of the then outstanding voting
securities of such corporation entitled to vote generally in the
election of directors is then beneficially owned, directly or
indirectly, by all or substantially all of the individuals and entitles
who were the beneficial owners, respectively, of the Outstanding Company
Common Stock and Outstanding Company Voting Securities immediately prior
to such sale or other disposition in substantially the same proportion
as their ownership, immediately prior to such sale or other disposition,
of the Outstanding Company Common Stock and Outstanding Company Voting
Securities, as the case may be, (B) no Person (excluding Allwaste, Inc.
and any employee benefit plan (or related trust) of Allwaste, Inc.
and/or its subsidiaries or such corporation and any Person beneficially
owning, immediately prior to such sale or other disposition, directly or
indirectly, 30% or more of the Outstanding Company Stock or Outstanding
Company Voting Securities, as the case may be) beneficially owns,
directly or indirectly, 30% or more of, respectively, the then
outstanding shares of common stock of such corporation or the combined
voting power of the then outstanding voting securities of such
corporation entitled to vote generally in the election of directors, and
(C) at least a majority of the members of the board of directors of such
corporation were members of the Incumbent Board at the time of the
execution of the initial agreement or action of the Board of Directors
of Allwaste, Inc. providing for such sale or other disposition of assets
of Allwaste, Inc.
Allwaste, Inc., by its Chief Executive Officer and its Board, shall be
obligated to give the Trustee prompt notice in writing of the occurrence of a
Change in Control. In the event the Trustee receives such a notice or if at
any time a Member or a Beneficiary of a deceased Member alleges in writing to
the Trustee that a Change in Control has occurred, the Trustee shall within
thirty days independently determine whether a Change in Control has occurred
and, pending such determination, the Trustee shall assume that a Change in
Control has occurred for all purposes of this Trust Agreement and the Plan.
The Trustee shall have no duty or obligation
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<PAGE> 24
to ascertain whether a Change in Control has occurred unless it receives a
written notice as described in either of the preceding two sentences. In
determining whether a Change in Control has occurred, the Trustee may, in its
sole discretion, make such additional inquiries and/or take such additional
measures as it deems necessary, including, but not limited to, interviewing
appropriate persons, requesting affidavits, soliciting oral or written
testimony under oath, or engaging such independent third parties as the Trustee
may deem necessary to assist in making such determination. Notwithstanding the
foregoing, if at any time Allwaste, Inc. notifies the Trustee in writing that
the Trustee should interpret this Trust Agreement and the Plan as if a Change
in Control had occurred, then for all purposes of this Trust Agreement and the
Plan, the Trustee shall so interpret this Trust Agreement and the Plan. Once
the notice described in the preceding sentence is received by the Trustee, it
may not be rescinded by Allwaste, Inc.
12.4 SUCCESSORS AND ASSIGNS. This Trust Agreement may not be assigned
by either party without the prior written consent of the other, and any
purported assignment without such prior written consent shall be null and void.
This Trust Agreement shall be binding upon the successors and permitted assigns
of each party hereto.
12.5 CONTROLLING DOCUMENT. Should an inconsistency or conflict exist
between the specific terms of this Trust Agreement and those of the Plan, then
the relevant terms of this Trust Agreement shall govern and control.
IN WITNESS WHEREOF, the parties hereto have caused this Trust Agreement
to be executed as of the day and year first above written.
ALLWASTE, INC.
BY:
---------------------------------------
NAME:
--------------------------------
TITLE:
--------------------------------
TEXAS COMMERCE BANK, NATIONAL
ASSOCIATION, TRUSTEE
BY:
---------------------------------------
NAME:
--------------------------------
TITLE:
--------------------------------
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EXHIBIT 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this registration statement of our report dated November 15, 1996
included in Allwaste, Inc.'s Form 10-K for the year ended August 31, 1996 and
to all references to our Firm included in this registration statement.
/s/ ARTHUR ANDERSEN LLP
Houston, Texas
January 31, 1997
