<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON SEPTEMBER 25, 1995
REGISTRATION NO. 33-62547
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- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
---------------------
Amendment No. 1
to
FORM S-3
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
---------------------
USA WASTE SERVICES, INC.
(Exact name of registrant as specified in its charter)
---------------------
<TABLE>
<S> <C>
DELAWARE 73-1309529
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
GREGORY T. SANGALIS
5000 QUORUM DRIVE, SUITE 300 5000 QUORUM DRIVE, SUITE 300
DALLAS, TEXAS 75240 DALLAS, TEXAS 75240
(214) 383-7900 (214) 383-7900
(Address, including zip code, and telephone (Name, address, including zip code, and
number, including telephone number,
area code, of registrant's principal executive including area code, of agent for service)
offices)
</TABLE>
---------------------
Copies to:
<TABLE>
<S> <C>
DAVID J. GRAHAM THOMAS J. MURPHY
ANDREWS & KURTH L.L.P. MCDERMOTT, WILL & EMERY
4200 TEXAS COMMERCE TOWER 227 WEST MONROE STREET
HOUSTON, TEXAS 77002 CHICAGO, ILLINOIS 60606-5096
(713) 220-4200 (312) 984-2069
</TABLE>
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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: As soon as
practicable after the Registration Statement becomes effective.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. / /
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. / /
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. / /
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. / /
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. / /
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A),
MAY DETERMINE.
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<PAGE> 2
EXPLANATORY NOTE
This amendment is being filed with the Securities and Exchange Commission
by USA Waste Services, Inc. ("the Company") solely to file an exhibit to the
Company's Registration Statement on Form S-3. Accordingly, the Prospectus which
forms a part of the Registration Statement is not included in this amendment.
<PAGE> 3
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The expenses to be paid by the registrant in connection with this offering
other than underwriting discounts and commissions are estimated as follows:
<TABLE>
<S> <C>
Securities and Exchange Commission registration fee....................... $ 41,280
NASD filing fee........................................................... 12,471
NYSE fees................................................................. 50,000
Printing and engraving.................................................... 250,000
Accounting services....................................................... 50,000
Legal services............................................................ 50,000
Transfer agent and registrar fees......................................... 10,000
Blue Sky fees and expenses................................................ 15,000
Miscellaneous expenses.................................................... 71,249
--------
Total........................................................... $550,000
========
</TABLE>
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Company's Certificate of Incorporation and Bylaws contain provisions
permitted by the Delaware Corporation Law (under which the Company is organized)
which, in general terms, provide that directors and officers will be indemnified
by the Company for all losses that may be incurred by them in connection with
any claim or legal action in which they may become involved by reason of their
service as a director or officer of the Company, if they meet certain specified
conditions. In addition, the Company's Certificate of Incorporation contains
provisions permitted by the Delaware General Corporation Law, which limit the
monetary liability of directors of the Company for certain breaches of their
fiduciary duty of care and provide for the advancement by the Company to
directors and officers of expenses incurred by them in defending suits arising
out of their service as such. The Company has also entered into agreements with
its officers and directors which essentially provide that the Company will
indemnify the officers and directors to the extent set forth in the Certificate
of Incorporation and Bylaws of the Company. In addition, the Company maintains a
directors' and officers' liability insurance policy.
ITEM 16. LIST OF EXHIBITS.
The following instruments are included as exhibits to this Registration
Statement and are filed herewith unless otherwise indicated.
<TABLE>
<C> <S>
*1.1 Form of Underwriting Agreement.
5.1 Opinion of Andrews & Kurth L.L.P.
23.1 Consent of Andrews & Kurth L.L.P. (included in Exhibit 5.1).
23.2 Consent of Coopers & Lybrand L.L.P.
23.3 Consent of Deloitte & Touche LLP.
23.4 Consent of Arthur Andersen LLP.
24.1 Powers of attorney (included on the signature page contained in Part II
of this Registration Statement).
</TABLE>
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* Filed herewith
ITEM 17. UNDERTAKINGS.
The Company hereby undertakes that, for purposes of determining any
liability under the Securities Act of 1933, each filing of the Company's annual
report pursuant to Section 13(a) or Section 15(d) of the Securities Exchange Act
of 1934 that is incorporated by reference in this Registration Statement shall
be
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<PAGE> 4
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.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers and controlling persons of the
Company pursuant to the foregoing provisions, or otherwise, the Company has been
advised that in the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the Act and is,
therefore, unenforceable. In the event that a claim for indemnification against
such liabilities (other than the payment of the Company of expenses incurred or
paid by a director, officer or controlling person of the Company in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Company will, unless in the opinion of its counsel the matter
has been settled by 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.
The Company hereby undertakes that:
(1) For purposes of determining any liability under the Securities Act
of 1933, the information omitted from the form of Prospectus filed as part
of this Registration Statement in reliance upon Rule 430A and contained in
a form of Prospectus filed by the Company pursuant to Rule 424(b)(1) or (4)
or 497(h) under the Securities Act of 1933 shall be deemed to be part of
this Registration Statement as of the time it was declared effective.
(2) For the purpose of determining any liability under the Securities
Act of 1933, each post-effective amendment that contains a form of
Prospectus 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.
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<PAGE> 5
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Dallas, State of Texas, on September 25, 1995.
USA WASTE SERVICES, INC.
By /s/ JOHN E. DRURY
------------------------------
John E. Drury
Chief Executive Officer
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 and on September 25, 1995.
<TABLE>
<CAPTION>
SIGNATURES TITLE
- --------------------------------------------- ---------------------------------------------
<C> <S>
/s/ JOHN E. DRURY Chief Executive Officer and Chairman of the
------------------------------------ Board of Directors
John E. Drury
* Vice Chairman of the Board of Directors and
------------------------------------ Chief Development Officer
Donald F. Moorehead, Jr.
* Vice Chairman of the Board of Directors
------------------------------------
John G. Rangos, Sr.
* President, Chief Operating Officer and
------------------------------------ Director
David Sutherland-Yoest
/s/ EARL E. DeFRATES Executive Vice President and Chief Financial
------------------------------------ Officer
Earl E. DeFrates
* Executive Vice President and Director
------------------------------------
Alexander W. Rangos
* Vice President, Corporate Controller and
------------------------------------ Chief Accounting Officer
Bruce E. Snyder
* Director
------------------------------------
George L. Ball
* Director
------------------------------------
Peter J. Gibbons
</TABLE>
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<PAGE> 6
<TABLE>
<CAPTION>
SIGNATURES TITLE
- --------------------------------------------- ---------------------------------------------
<C> <S>
* Director
-------------------------------
Richard J. Heckmann
* Director
-------------------------------
William E. Moffett
*By:
---------------------------
Earl E. DeFrates
Attorney-in-Fact
</TABLE>
II-4
<PAGE> 7
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
SEQUENTIALLY
EXHIBIT NUMBERED
NUMBER DESCRIPTION PAGE
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<C> <S> <C>
*1.1 Form of Underwriting Agreement.
5.1 Opinion of Andrews & Kurth L.L.P.
23.1 Consent of Andrews & Kurth L.L.P. (included in Exhibit 5.1).
23.2 Consent of Coopers & Lybrand L.L.P.
23.3 Consent of Deloitte & Touche LLP.
23.4 Consent of Arthur Andersen LLP.
24.1 Powers of attorney (included on the signature page contained in Part II
of this Registration Statement).
</TABLE>
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* Filed herewith
<PAGE> 1
EXHIBIT 1.1
5,137,500 Shares
USA Waste Services, Inc.
Common Stock
UNDERWRITING AGREEMENT
_______________, 1995
DONALDSON, LUFKIN & JENRETTE
SECURITIES CORPORATION
DEUTSCHE MORGAN GRENFELL/
C.J. LAWRENCE INC.
SMITH BARNEY INC.
As representatives of the
several underwriters
named in Schedule I hereto
c/o Donaldson, Lufkin & Jenrette
Securities Corporation
140 Broadway
New York, New York 10005
Dear Sirs:
USA Waste Services, Inc., a Delaware corporation (the
"Company"), and the stockholder of the Company named in Schedule II hereto,
(collectively, the "Selling Stockholder"), severally propose to sell an
aggregate of 5,137,500 shares of Common Stock, $.01 par value, of the Company
(the "Firm Shares"), to the several underwriters named in Schedule I hereto
(the "Underwriters"). The Firm Shares consist of 5,000,000 shares to be issued
and sold by the Company and 137,500 outstanding shares to be sold by the
Selling Stockholder. The Company also proposes to issue and sell to the
several Underwriters not more than
<PAGE> 2
770,625 additional shares of Common Stock, $.01 par value, of the Company (the
"Additional Shares"), if requested by the Underwriters as provided in Section 2
hereof. The Firm Shares and the Additional Shares are herein collectively
called the Shares. The shares of common stock of the Company to be outstanding
after giving effect to the sales contemplated hereby are hereinafter referred
to as the Common Stock. The Company and the Selling Stockholder are
hereinafter collectively called the Sellers.
1. Registration Statement and Prospectus. The Company has
prepared and filed with the Securities and Exchange Commission (the
"Commission") in accordance with the provisions of the Securities Act of 1933,
as amended, and the rules and regulations of the Commission thereunder
(collectively called the "Act"), a registration statement on Form S-3
(Registration No. 33-_____), including a preliminary prospectus relating to the
Shares, which may be amended. The registration statement as amended on the
date it became effective, on the one hand, and the prospectus constituting a
part thereof in the form first used to confirm sales of Shares, on the other
hand (including (a) the information (if any) deemed to be part of the
registration statement at the time of effectiveness pursuant to Rule 430A or
Rule 434 under the Act, and (b) any documents or information incorporated or
deemed to be incorporated by reference into such registration statement or
prospectus), are hereinafter referred to as the "Registration Statement" and
the "Prospectus", respectively. Any registration statement (including any
amendment or supplement thereto or information which is deemed to be a part
thereof) filed by the Company under Rule 462(b) of the Act (a "Rule 462(b)
Registration Statement") shall be deemed to be a part of the Registration
Statement. If the Company elects to rely on Rule 434 under the Act, all
references to the Prospectus shall be deemed to also include, without
limitation, the form of prospectus and term sheet (a "Term Sheet"), taken
together, provided to the Underwriters by the Company in reliance on Rule 434
under the Act (the "Rule 434 Prospectus"). All references in this Agreement to
financial statements and schedules and other information which is "contained,"
"included," "described" or "stated" in the Registration Statement or the
Prospectus (and all references of like import) shall be deemed to mean and
include all such financial statements and schedules and other information which
is or is deemed to be incorporated by reference in the Registration Statement
or the Prospectus, as the case may be; and all references in this Agreement to
amendments or supplements to the Registration Statement or the Prospectus shall
be deemed to mean and include, without limitation, even through not
specifically stated, any document filed under the Exchange Act of 1934, as
amended, and the rules and regulations of the Commission thereunder (the
"Exchange Act") which is or is
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<PAGE> 3
deemed to be incorporated by reference in the Registration Statement or the
Prospectus, as the case may be.
2. Agreements to Sell and Purchase. On the basis of the
representations and warranties contained in this Agreement, and subject to its
terms and conditions, (i) the Company agrees to issue and sell 5,000,000 Firm
Shares, (ii) each Selling Stockholder agrees, severally and not jointly, to
sell the number of Firm Shares set forth opposite such Selling Stockholder's
name in Schedule II hereto and (iii) each Underwriter agrees, severally and not
jointly, to purchase from each Seller at a price per share of $______ (the
"Purchase Price") the number of Firm Shares (subject to such adjustments to
eliminate fractional shares as you may determine) which bears the same
proportion to the total number of Firm Shares to be sold by such Seller as the
number of Firm Shares set forth opposite the name of such Underwriter in
Schedule I hereto bears to the total number of Firm Shares.
On the basis of the representations and warranties contained
in this Agreement, and subject to its terms and conditions, (i) the Company
agrees to issue and sell up to 770,625 Additional Shares and (ii) the
Underwriters shall have the right to purchase, severally and not jointly, up to
an aggregate 770,625 Additional Shares from the Company at the Purchase Price.
Additional Shares may be purchased solely for the purpose of covering
over-allotments made in connection with the offering of the Firm Shares. The
Underwriters may exercise their right to purchase Additional Shares in whole or
in part from time to time by giving written notice thereof to the Company
within 30 days after the date of this Agreement. You shall give any such
notice on behalf of the Underwriters and such notice shall specify the
aggregate number of Additional Shares to be purchased pursuant to such exercise
and the date for payment and delivery thereof. The date specified in any such
notice shall be a business day (i) no earlier than the Closing Date (as
hereinafter defined), (ii) no later than ten business days after such notice
has been given and (iii) no earlier than two business days after such notice
has been given. If any Additional Shares are to be purchased, each
Underwriter, severally and not jointly, agrees to purchase from the Company the
number of Additional Shares (subject to such adjustments to eliminate
fractional shares as you may determine) which bears the same proportion to the
total number of Additional Shares to be purchased from the Company as the
number of Firm Shares set forth opposite the name of such Underwriter in
Schedule I bears to the total number of Firm Shares.
The Sellers hereby agree, severally and not jointly, and the
Company shall, concurrently with the execution of this
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<PAGE> 4
Agreement, deliver an agreement executed by (i) each of the directors and
officers of the Company and (ii) each stockholder listed on Annex I hereto,
pursuant to which each such person agrees, not to offer, sell, contract to
sell, grant any option to purchase, or otherwise dispose of any common stock of
the Company or any securities convertible into or exercisable or exchangeable
for such common stock or in any other manner transfer all or a portion of the
economic consequences associated with the ownership of any such common stock,
except to the Underwriters pursuant to this Agreement, for a period of 90 days
after the date of the Prospectus without the prior written consent of
Donaldson, Lufkin & Jenrette Securities Corporation. Notwithstanding the
foregoing, during such period (i) the Company may grant stock options pursuant
to the Company's existing stock option plans, (ii) the Company may issue shares
of its common stock upon the exercise of an option or warrant or the conversion
of a security outstanding on the date hereof, and [(III) THE COMPANY MAY ISSUE
THE SHARES OF ITS COMMON STOCK THAT ARE CURRENTLY REGISTERED ON ITS
REGISTRATION STATEMENT NO. __ IN CONNECTION WITH ACQUISITIONS.]
3. Terms of Public Offering. The Sellers are advised by you
that the Underwriters propose (i) to make a public offering of their respective
portions of the Shares as soon after the effective date of the Registration
Statement as in your judgment is advisable and (ii) initially to offer the
Shares upon the terms set forth in the Prospectus.
4. Delivery and Payment. Delivery to the Underwriters of and
payment for the Firm Shares shall be made at 10:00 A.M., New York City time, on
the fourth business day (or the third business day if required under Rule
15c6-1 of the Exchange Act) following the date the Registration Statement
becomes effective (or, if the Company has elected to rely upon Rule 430A of the
Act, the fourth business day (or the third business day if required under rule
15c6-1 of the Exchange Act) after the determination of the Purchase Price), or
such other time not later than ten business days after such date as shall be
agreed upon by you and the Company (such time and date of payment and delivery
being herein called the "Closing Date") at the offices of Andrews & Kurth
L.L.P. in Dallas, Texas or at such other place as you shall designate. The
Closing Date and the location of delivery of and the form of payment for the
Firm Shares may be varied by agreement between you and the Sellers.
Delivery to the Underwriters of and payment for any Additional
Shares to be purchased by the Underwriters shall be made at the offices of
Andrews & Kurth L.L.P. in Dallas, Texas at 10:00 A.M., New York City time, on
the date specified in the applicable exercise notice given by you pursuant to
Section 2 (an
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<PAGE> 5
"Option Closing Date"). Any such Option Closing Date and the location of
delivery of and the form of payment for such Additional Shares may be varied by
agreement between you and the Company.
Certificates for the Shares shall be registered in such names
and issued in such denominations as you shall request in writing not later than
two full business days prior to the Closing Date or an Option Closing Date, as
the case may be. Such certificates shall be made available to you for
inspection not later than 9:30 A.M., New York City time, on the business day
next preceding the Closing Date or an Option Closing Date, as the case may be.
Certificates in definitive form evidencing the Shares shall be delivered to you
on the Closing Date or an Option Closing Date, as the case may be, with any
transfer taxes thereon duly paid by the respective Sellers, for the respective
accounts of the several Underwriters, against payment of the Purchase Price
therefor by wire transfer in same day funds to an account specified by the
Company. The amount otherwise payable to the Company and the Selling
Stockholder for the Shares shall be reduced by an amount equal to interest on
the Purchase Price from the Closing Date to and including the next business day
computed at Donaldson, Lufkin & Jenrette Securities Corporation's cost of
funds. The Purchase Price for the Shares being sold by the Selling Stockholder
shall be paid to the Company as custodian under the Custodian Agreement between
the Company and the Selling Stockholder and shall be distributed according to
the terms of such Custodian Agreement.
5. Agreements of the Company. The Company agrees with you:
(a) To use its best efforts to cause the Registration
Statement to become effective at the earliest possible time.
(b) To advise you promptly and, if requested by you, to
confirm such advice in writing, (i) when the Registration Statement
has become effective and when any post-effective amendment to it
becomes effective, (ii) of the receipt of comments from the Commission
relating to the Registration Statement, (iii) of any request by the
Commission for amendments to the Registration Statement or amendments
or supplements to the Prospectus or for additional information, (iv)
of the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or of the suspension of
qualification of the Shares for offering or sale in any jurisdiction,
or the initiation of any proceeding for such purposes, and (v)
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<PAGE> 6
of the happening of any event during the period referred to in
paragraph (e) below which makes any statement of a material fact made
in the Registration Statement or the Prospectus untrue or which
requires the making of any additions to or changes in the Registration
Statement or the Prospectus in order to make the statements therein
not misleading. If at any time the Commission shall issue any stop
order suspending the effectiveness of the Registration Statement, the
Company will make every reasonable effort to obtain the withdrawal or
lifting of such order at the earliest possible time.
(c) To furnish to you, without charge, four signed copies of
the Registration Statement as first filed with the Commission and of
each amendment to it, including all exhibits, and to furnish to you
and each Underwriter designated by you such number of conformed copies
of the Registration Statement as so filed and of each amendment to it,
without exhibits, as you may reasonably request.
(d) Not to (i) file any 462(b) Registration Statement, (ii)
file any amendment or supplement to the Registration Statement, (iii)
file any document under the Exchange Act which shall be deemed to be
incorporated by reference into the Prospectus, or (iv) make any
amendment or supplement to the Prospectus (including the issuance or
filing of any Term Sheet); of which you shall not previously have been
advised or to which you shall reasonably object; and to prepare and
file with the Commission, promptly upon your reasonable request, any
462(b) Registration Statement, Term Sheet or amendment or supplement
to the Registration Statement or the Prospectus which may be necessary
or advisable in connection with the distribution of the Shares by you,
and to use its best efforts to cause the same to become promptly
effective.
(e) Promptly after the Registration Statement becomes
effective, and from time to time thereafter for such period as in the
opinion of counsel for the Underwriters a prospectus is required by
law to be delivered in connection with sales by an Underwriter or a
dealer, to furnish to each Underwriter and dealer as many copies of
the Prospectus (and of any amendment or supplement to the Prospectus)
as such Underwriter or dealer may reasonably request.
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<PAGE> 7
(f) If during the period specified in paragraph (e) any event
shall occur as a result of which, in the opinion of counsel for the
Underwriters, it becomes necessary to amend or supplement the
Prospectus in order to make the statements therein, in the light of
the circumstances when the Prospectus is delivered to a purchaser, not
misleading, or if it is necessary to amend or supplement the
Prospectus to comply with any law, forthwith to prepare and file with
the Commission an appropriate amendment or supplement to the
Prospectus so that the statements in the Prospectus, as so amended or
supplemented, will not, in the light of the circumstances when it is
so delivered, be misleading, or so that the Prospectus will comply
with law, and to furnish to each Underwriter and to such dealers as
you shall specify, such number of copies thereof as such Underwriter
or dealers may reasonably request.
(g) Prior to any public offering of the Shares, to cooperate
with you and counsel for the Underwriters in connection with the
registration or qualification of the Shares for offer and sale by the
several Underwriters and by dealers under the state securities or Blue
Sky laws of such jurisdictions as you may request, to continue such
qualification in effect so long as required for distribution of the
Shares and to file such consents to service of process or other
documents as may be necessary in order to effect such registration or
qualification.
(h) To mail and make generally available to its stockholders
as soon as reasonably practicable an earnings statement covering a
period of at least twelve months after the effective date of the
Registration Statement (but in no event commencing later than 90 days
after such date) which shall satisfy the provisions of Section 11(a)
of the Act.
(i) During the period of five years after the date of this
Agreement, (i) to mail as soon as reasonably practicable after the end
of each fiscal year to the record holders of its Common Stock a
financial report of the Company and its subsidiaries on a consolidated
basis (and a similar financial report of all unconsolidated
subsidiaries, if any), all such financial reports to include a
consolidated balance sheet, a consolidated statement of operations, a
consolidated statement of cash flows and a consolidated statement of
shareholders' equity as of the end of and
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<PAGE> 8
for such fiscal year, together with comparable information as of the
end of and for the preceding year, certified by independent certified
public accountants, and (ii) to make generally available as soon as
practicable after the end of each quarterly period (except for the
last quarterly period of each fiscal year) to such holders, a
consolidated balance sheet, a consolidated statement of operations and
a consolidated statement of cash flows (and similar financial reports
of all unconsolidated subsidiaries, if any) as of the end of and for
such period, and for the period from the beginning of such year to the
close of such quarterly period, together with comparable information
for the corresponding periods of the preceding year.
(j) During the period referred to in paragraph (i), to
furnish to you as soon as available a copy of each report or other
publicly available information of the Company mailed to the holders of
Common Stock or filed with the Commission and such other publicly
available information concerning the Company and its subsidiaries as
you may reasonably request.
(k) To pay all costs, expenses, fees and taxes incident to
(i) the preparation, printing, filing and distribution under the Act
of the Registration Statement (including financial statements and
exhibits), each preliminary prospectus and all amendments and
supplements to any of them prior to or during the period specified in
paragraph (e), (ii) the printing and delivery of the Prospectus and
all amendments or supplements to it during the period specified in
paragraph (e), (iii) the printing and delivery of this Agreement, the
Preliminary and Supplemental Blue Sky Memoranda, (iv) the registration
or qualification of the Shares for offer and sale under the securities
or Blue Sky laws of the several states (including in each case the
fees and disbursements of counsel for the Underwriters relating to
such registration or qualification and memoranda relating thereto),
(v) the filing fees and the fees and disbursements of counsel incurred
in connection with filings and clearance with the National Association
of Securities Dealers, Inc. in connection with the offering, (vi) the
listing of the Shares on the New York Stock Exchange, and (vii)
furnishing such copies of the Registration Statement, the Prospectus
and all amendments and supplements thereto as may be requested for use
in connection with the offering or sale of the
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<PAGE> 9
Shares by the Underwriters or by dealers to whom Shares may be sold.
(l) To use its best efforts to maintain the listing of the
Common Stock on the New York Stock Exchange for a period of five years
after the effective date of the Registration Statement.
(m) To use its best efforts to do and perform all things
required or necessary to be done and performed under this Agreement by
the Company prior to the Closing Date or any Option Closing Date, as
the case may be, and to satisfy all conditions precedent to the
delivery of the Shares.
(n) To use the net proceeds received by it from the sale of
Shares in the manner specified in the Prospectus under "Use of
Proceeds."
(o) If, at the time that the Registration Statement becomes
effective, any information shall have been omitted therefrom in
reliance upon Rule 430A of the Act, then immediately following the
determination of the Purchase Price, to prepare, and file or transmit
for filing with the Commission in accordance with Rule 430A and Rule
424(b) of the Act, copies of an amended Prospectus, or, if required by
such Rule 430A, a post-effective amendment to the Registration
Statement (including an amended Prospectus), containing all
information so omitted.
6. Representations and Warranties of the Company. The
Company represents and warrants to each Underwriter that:
(a) The Company meets the requirements for use of Form S-3;
the Registration Statement has become effective; no stop order
suspending the effectiveness of the Registration Statement is in
effect, and no proceedings for such purpose are pending before or
threatened by the Commission.
(b) At the time the Registration Statement, any 462(b)
Registration Statement or any post-effective amendment to the
Registration Statement became or becomes effective, on the date that
any amendment or supplement to the Prospectus is filed with the
Commission, and at the Closing Date, and if later, the Option Closing
Date, (i) each part of the Registration Statement, when such part
became effective, did not contain and each such part, as amended or
supplemented,
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<PAGE> 10
if applicable, will not contain any untrue statement of a material
fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading, (ii) the
Registration Statement and the Prospectus comply and, as amended or
supplemented, if applicable, will comply in all material respects with
the Act and (iii) the Prospectus did not and does not contain and, as
amended or supplemented, if applicable, will not contain any untrue
statement of a material fact or omit to state a material fact
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, except that
the representations and warranties set forth in this paragraph (b) do
not apply to statements or omissions in the Registration Statement or
the Prospectus based upon information relating to any Underwriter
furnished to the Company in writing by such Underwriter through you
expressly for use therein.
(c) Any term sheet or prospectus subject to completion
provided by the Company to the Underwriters for use in connection with
the offering and sale of the Shares pursuant to Rule 434 under the Act
together are not materially different from the prospectus included in
the Registration Statement (exclusive of any information deemed a part
thereof by virtue of Rule 434(d)). The documents incorporated or
deemed to be incorporated by reference in the Prospectus pursuant to
Item 12 of Form S-3 under the Act, at the time they were, or
hereafter are, filed with the Commission, complied and will comply in
all material respects with the requirements of the Exchange Act, and,
when read together with other information in the Prospectus, at the
time the Registration Statement became effective and as of the Closing
Date and, if later, the Option Closing Date, and during the period
specified in Section 5(e), did not and will not contain an untrue
statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein, in
the light of the circumstances under which they were made, not
misleading.
(d) Each preliminary prospectus filed as part of the
registration statement as originally filed or as part of any amendment
thereto, or filed pursuant to Rule 424 under the Act, complied when so
filed in all material respects with the Act; and did not contain an
untrue statement of a material fact or omit to state a
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<PAGE> 11
material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they
were made, not misleading.
(e) The Company and each of its subsidiaries has been duly
incorporated, is validly existing as a corporation in good standing
under the laws of its jurisdiction of incorporation and has the
corporate power and authority to carry on its business as it is
currently being conducted and to own, lease and operate its
properties, and each is duly qualified and is in good standing as a
foreign corporation authorized to do business in each jurisdiction in
which the nature of its business or its ownership or leasing of
property requires such qualification, except where the failure to be
so qualified would not have a material adverse effect on the Company
and its subsidiaries, taken as a whole.
(f) All of the outstanding shares of capital stock of, or
other ownership interests in, each of the Company's subsidiaries have
been duly authorized and validly issued and are fully paid and
non-assessable, and are owned by the Company, free and clear of any
security interest, claim, lien, encumbrance or adverse interest of any
nature.
(g) All the outstanding shares of capital stock of the
Company (including the Shares to be sold by the Selling Stockholder)
have been duly authorized and validly issued and are fully paid,
non-assessable and not subject to any preemptive or similar rights;
and the Shares to be issued and sold by the Company hereunder have
been duly authorized and, when issued and delivered to the
Underwriters against payment therefor as provided by this Agreement,
will be validly issued, fully paid and non-assessable, and the
issuance of such Shares will not be subject to any preemptive or
similar rights. Upon payment of the Purchase Price and delivery of
certificates representing the Shares, each of the Underwriters will
receive the Shares free and clear of all liens, security interests or
encumbrances.
(h) The authorized capital stock of the Company, including
the Common Stock, conforms as to legal matters to the description
thereof incorporated by reference in the Prospectus.
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<PAGE> 12
(i) Neither the Company nor any of its subsidiaries is in
violation of its respective charter or by-laws or in default in the
performance of any obligation, agreement or condition contained in any
bond, debenture, note or any other evidence of indebtedness or in any
other agreement, indenture or instrument material to the conduct of
the business of the Company and its subsidiaries, taken as a whole, to
which the Company or any of its subsidiaries is a party or by which it
or any of its subsidiaries or their respective property is bound.
(j) The execution, delivery and performance of this
Agreement, compliance by the Company with all the provisions hereof
and the consummation of the transactions contemplated hereby will not
require any consent, approval, authorization or other order of any
court, regulatory body, administrative agency or other governmental
body (except such as may be required under the securities or Blue Sky
laws of the various states) and will not conflict with or constitute a
breach of any of the terms or provisions of, or a default under, the
charter or by-laws of the Company or any of its subsidiaries or any
agreement, indenture or other instrument to which it or any of its
subsidiaries is a party or by which it or any of its subsidiaries or
their respective property is bound, or violate or conflict with any
laws, administrative regulations or rulings or court decrees
applicable to the Company, any of its subsidiaries or their respective
property.
(k) Except as otherwise set forth in the Prospectus, there
are no material legal or governmental proceedings pending to which the
Company or any of its subsidiaries is a party or of which any of their
respective property is the subject, and, to the Company's knowledge,
no such proceedings are threatened or contemplated. Except as
disclosed on Annex II hereto, no material development has occurred
with respect to the matters described under the caption "Item 1 -
Legal Proceedings" in the Company's Form 10-Q for the quarterly period
ended June 30, 1995 or the caption "Description of Chambers-Legal
Proceedings" in the Company's Proxy Statement, Annual Report and
Prospectus dated May 19, 1995 (the "Proxy Statement"). No contract or
document of a character required to be described in the Registration
Statement or the Prospectus or to be filed as an exhibit to the
Registration Statement is not so described or filed as required.
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<PAGE> 13
(l) Neither the Company nor any of its subsidiaries has
violated any foreign, federal, state or local law or regulation
relating to the protection of human health and safety, the environment
or hazardous or toxic substances or wastes, pollutants or contaminants
("Environmental Laws"), nor any federal or state law relating to
discrimination in the hiring, promotion or pay of employees nor any
applicable federal or state wages and hours laws, nor any provisions
of the Employee Retirement Income Security Act or the rules and
regulations promulgated thereunder, which in each case might result in
any material adverse change in the business, prospects, financial
condition or results of operation of the Company and its subsidiaries,
taken as a whole.
(m) The Company and each of its subsidiaries has such
permits, licenses, franchises and authorizations of governmental or
regulatory authorities ("permits"), including, without limitation,
under any applicable Environmental Laws, as are necessary to own,
lease and operate its respective properties and to conduct its
business as currently being conducted and as the Company expects it to
be conducted except where the failure to have such permits would not
have a material adverse effect on the Company and its subsidiaries,
taken as a whole; the Company and each of its subsidiaries has
fulfilled and performed all of its material obligations with respect
to such permits and no event has occurred which allows, or after
notice or lapse of time would allow, revocation or termination thereof
or results in any other material impairment of the rights of the
holder of any such permit; and, except as described in the Prospectus,
such permits contain no restrictions that are materially burdensome to
the Company or any of its subsidiaries.
(n) In the ordinary course of its business, the Company
conducts a periodic review of the effect of Environmental Laws on the
business, operations and properties of the Company and its
subsidiaries, in the course of which it identifies and evaluates
associated costs and liabilities (including, without limitation, any
capital or operating expenditures required for clean-up, closure of
properties or compliance with Environmental Laws or any permit,
license or approval, any related constraints on operating activities
and any potential liabilities to third parties). On the basis of such
review, the Company has reasonably concluded that such associated
costs and liabilities would not,
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<PAGE> 14
except to the extent properly accrued for in the Company's financial
statements, singly or in the aggregate, have a material adverse effect
on the Company and its subsidiaries, taken as a whole.
(o) Except as otherwise set forth in the Prospectus or such
as are not material to the business, prospects, financial condition or
results of operation of the Company and its subsidiaries, taken as a
whole, the Company and each of its subsidiaries has good and
marketable title, free and clear of all liens, claims, encumbrances
and restrictions except liens for taxes not yet due and payable, to
all property and assets described in the Registration Statement as
being owned by it. All leases to which the Company or any of its
subsidiaries is a party are valid and binding and no default has
occurred or is continuing thereunder that might result in any material
adverse change in the business, prospects, financial condition or
results of operation of the Company and its subsidiaries taken as a
whole, and the Company and its subsidiaries enjoy peaceful and
undisturbed possession under all such leases to which any of them is a
party as lessee with such exceptions as do not materially interfere
with the use made by the Company or such subsidiary.
(p) The Company and each of its subsidiaries maintains
insurance as is customary in the industry.
(q) Coopers & Lybrand LLP, Deloitte & Touche LLP and Arthur
Andersen LLP are independent public accountants with respect to the
Company as required by the Act.
(r) The financial statements, together with related schedules
and notes, included in the Registration Statement and the Prospectus
(and any amendment or supplement thereto), present fairly the
consolidated financial position, results of operations and changes in
financial position of the Company and its subsidiaries on the basis
stated in the Registration Statement at the respective dates or for
the respective periods to which they apply; such statements and
related schedules and notes have been prepared in accordance with
generally accepted accounting principles consistently applied
throughout the periods involved, except as disclosed therein; and the
other financial and statistical information and data set forth in the
Registration Statement and the Prospectus (and any amendment or
supplement thereto)
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<PAGE> 15
is, in all material respects, accurately presented and prepared on a
basis consistent with such financial statements and the books and
records of the Company. No other financial statements or schedules
are required by the Act or the Exchange Act to be included in the
Registration Statement or the Prospectus.
(s) The Company is not an "investment company" or a company
"controlled" by an "investment company" within the meaning of the
Investment Company Act of 1940, as amended.
(t) No holder of any security of the Company has any right to
require registration of shares of Common Stock or any other security
of the Company because of the filing of the Registration Statement,
which has not been waived.
(u) The Shares are duly authorized for listing on the New
York Stock Exchange, subject to official notice of issuance.
(v) The Company has complied with all provisions of Section
517.075, Florida Statutes (Chapter 92-198, Laws of Florida).
(w) There are no outstanding subscriptions, rights, warrants,
options, calls, convertible securities, commitments of sale or liens
related to or entitling any person to purchase or otherwise to acquire
any shares of the capital stock of, or other ownership interest in,
the Company or any subsidiary thereof except as otherwise disclosed in
the Registration Statement.
(x) Except as disclosed in the Prospectus, there are no
business relationships or related party transactions required to be
disclosed therein by Item 404 of Regulation S-K of the Commission.
(y) There is (i) no significant unfair labor practice
complaint pending against the Company or any of its subsidiaries or,
to the knowledge of the Company, threatened against any of them,
before the National Labor Relations Board or any state or local labor
relations board, and no significant grievance or significant
arbitration proceeding arising out of or under any collective
bargaining agreement is so pending against the Company or any of its
subsidiaries or, to the best knowledge of the Company, threatened
against
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<PAGE> 16
any of them, and (ii) no significant strike, labor dispute, slowdown
or stoppage pending against the Company or any of its subsidiaries or,
to the best knowledge of the Company, threatened against it or any of
its subsidiaries except for such actions specified in clause (i) or
(ii) above, which, singly or in the aggregate could not reasonably be
expected to have a material adverse effect on the Company and its
subsidiaries, taken as a whole.
(z) The Company and each of its subsidiaries maintains a
system of internal accounting controls sufficient to provide
reasonable assurance that (i) transactions are executed in accordance
with management's general or specific authorizations; (ii)
transactions are recorded as necessary to permit preparation of
financial statements in conformity with generally accepted accounting
principles and to maintain asset accountability; (iii) access to
assets is permitted only in accordance with management's general or
specific authorization; and (iv) the recorded accountability for
assets is compared with the existing assets at reasonable intervals
and appropriate action is taken with respect to any differences.
(aa) All material tax returns required to be filed by the
Company and each of its subsidiaries in any jurisdiction have been
filed, other than those filings being contested in good faith, and all
material taxes, including withholding taxes, penalties and interest,
assessments, fees and other charges due pursuant to such returns or
pursuant to any assessment received by the Company or any of its
subsidiaries have been paid, other than those being contested in good
faith and for which adequate reserves have been provided.
(ab) Subsequent to the respective dates as of which
information is given in the Registration Statement and the Prospectus
and prior to the Closing Date, or if later, the Option Closing Date
(i) there has not been and will not have been, except as set forth in
or as contemplated by the Registration Statement and the Prospectus
any change in the capitalization, long term or short term debt or in
the capital stock or equity of the Company or any of its subsidiaries,
(ii) neither the Company nor any of its subsidiaries has incurred any
material liabilities or obligations, direct or contingent, nor has it
entered into any material transactions other than pursuant to
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<PAGE> 17
this Agreement, and the transactions referred to herein, or as
contemplated in the Prospectus, and (iii) there has not been any
material adverse effect, or any development involving a prospective
material adverse effect, in or affecting the general affairs,
management, financial position, shareholders' equity (or, with respect
to Partnership Subsidiaries, partnership capital), net worth or
results of operations of the Company and its subsidiaries.
(ac) The Company and its affiliates have not taken, and will
not take, directly or indirectly, any action designed to, or which
might reasonably be expected to, cause or result in stabilization or
manipulation of the price of any security of the Company to facilitate
the sale or resale of the Shares pursuant to the distribution
contemplated by this Agreement, and other than as permitted by the
Act, the Company has not distributed and will not distribute any
prospectus or other offering material in connection with the offering
and sale of the Shares.
Any certificate or other document signed by any officer or authorized
representative of the Company or any Selling Shareholder and delivered to the
Representatives or to counsel for the Underwriters shall be deemed a
representation and warranty by such entity or person, as the case may be, to
each Underwriter as to the matter covered thereby.
7. Representations and Warranties of the Selling Stockholder.
Each Selling Stockholder severally represents and warrants to each Underwriter
that:
(a) Such Selling Stockholder is the lawful owner of the
Shares to be sold by such Selling Stockholder pursuant to this
Agreement and has, and on the Closing Date will have, good and clear
title to such Shares, free of all restrictions on transfer, liens,
encumbrances, security interests and claims whatsoever (other than
restrictions under federal or state securities laws).
(b) Upon delivery of and payment for such Shares pursuant to
this Agreement, good and clear title to such Shares will pass to the
Underwriters, free of all restrictions on transfer, liens,
encumbrances, security interests and claims whatsoever.
(c) Such Selling Stockholder has, and on the Closing Date
will have, full legal right, power and
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<PAGE> 18
authority to enter into this Agreement and the Custody Agreement
between the Selling Stockholder and the Company, as Custodian (the
"Custody Agreement") and to sell, assign, transfer and deliver such
Shares in the manner provided herein and therein, and this Agreement
and the Custody Agreement have been duly authorized, executed and
delivered by such Selling Stockholder and each of this Agreement and
the Custody Agreement is a valid and binding agreement of such Selling
Stockholder enforceable in accordance with its terms, except as rights
to indemnity and contribution hereunder may be limited by applicable
law or public policy.
(d) The power of attorney signed by such Selling Stockholder
appointing Earl E. DeFrates and Gregory T. Sangalis, or either one of
them, as such Selling Stockholder's attorney-in-fact to the extent set
forth therein with regard to the transactions contemplated hereby and
by the Registration Statement and the Custody Agreement has been duly
authorized, executed and delivered by or on behalf of such Selling
Stockholder and is a valid and binding instrument of such Selling
Stockholder enforceable in accordance with its terms, and, pursuant to
such power of attorney, such Selling Stockholder has authorized Earl
E. DeFrates and Gregory T. Sangalis or either one of them, to execute
and deliver on such Selling Stockholder's behalf this Agreement and
any other document necessary or desirable in connection with
transactions contemplated hereby and to deliver the Shares to be sold
by such Selling Stockholder pursuant to this Agreement.
(e) Such Selling Stockholder has not taken, and will not
take, directly or indirectly, any action designed to, or which might
reasonably be expected to, cause or result in stabilization or
manipulation of the price of any security of the Company to facilitate
the sale or resale of the Shares pursuant to the distribution
contemplated by this Agreement, and other than as permitted by the
Act, the Selling Stockholder has not distributed and will not
distribute any prospectus or other offering material in connection
with the offering and sale of the Shares.
(f) The execution, delivery and performance of this Agreement
by such Selling Stockholder, compliance by such Selling Stockholder
with all the provisions hereof and the consummation of the
transactions contemplated hereby will not require any consent,
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<PAGE> 19
approval, authorization or other order of any court, regulatory body,
administrative agency or other governmental body (except as such may
be required under the Act, state securities laws or Blue Sky laws) and
will not conflict with or constitute a breach of any of the terms or
provisions of, or a default under, organizational documents of such
Selling Stockholder, if not an individual, or any agreement, indenture
or other instrument to which such Selling Stockholder is a party or by
which such Selling Stockholder or property of such Selling Stockholder
is bound, or violate or conflict with any laws, administrative
regulation or ruling or court decree applicable to such Selling
Stockholder or property of such Selling Stockholder.
(g) Such parts of the Registration Statement under the
caption "Selling Stockholder" which specifically relate to such
Selling Stockholder do not, and will not on the Closing Date, contain
any untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary to make the statements
therein, in light of circumstances under which they were made, not
misleading.
(h) At any time during the period described in paragraph 5(e)
hereof, if there is any change in the information referred to in
paragraph 7(g) above, the Selling Stockholder will immediately notify
you of such change.
8. Indemnification. (a) The Company agrees to indemnify and
hold harmless each Underwriter and each person, if any, who controls any
Underwriter within the meaning of Section 15 of the Act or Section 20 of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), from and
against any and all losses, claims, damages, liabilities and judgments caused
by any untrue statement or alleged untrue statement of a material fact
contained in the Registration Statement or the Prospectus (as amended or
supplemented if the Company shall have furnished any amendments or supplements
thereto) or any preliminary prospectus, or caused by any omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, except insofar as such
losses, claims, damages, liabilities or judgments are caused by any such untrue
statement or omission or alleged untrue statement or omission based upon
information relating to any Underwriters furnished in writing to the Company by
or on behalf of any Underwriter through you expressly for use therein.
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<PAGE> 20
(b) The Selling Stockholder agrees to indemnify and hold
harmless each Underwriter and each person, if any, who controls any Underwriter
within the meaning of Section 15 of the Act or Section 20 of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), from and against any and
all losses, claims, damages, liabilities and judgments caused by any untrue
statement or alleged untrue statement of a material fact under the caption
"Selling Stockholder" in the Registration Statement or the Prospectus (as
amended or supplemented if the Company shall have furnished any amendments or
supplements thereto) or any preliminary prospectus, or caused by any omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, except
insofar as such losses, claims, damages, liabilities or judgments are caused by
any such untrue statement or omission or alleged untrue statement or omission
based upon information relating to any Underwriters furnished in writing to the
Company by or on behalf of any Underwriter through you expressly for use
therein. Notwithstanding the foregoing, the aggregate liability of any Selling
Stockholder pursuant to the provisions of this paragraph shall be limited to an
amount equal to the aggregate purchase price received by such Selling
Stockholder from the sale of such Selling Stockholder's Shares hereunder.
(c) The indemnity agreement contained in paragraphs 8(a) and
8(b), with respect to any preliminary prospectus, shall not inure to the
benefit of any Underwriter to the extent that any loss, claim, damages or
liability results from the fact that a copy of the Prospectus was not sent or
given by or on behalf of such Underwriter to the person asserting any such
loss, claim, damages or liability to the extent that the Prospectus would have
cured the defect giving rise to such loss, claim, damages, liability or
judgment if such Underwriter shall have been provided with the number of copies
of the Prospectus requested by such Underwriter and it is judicially determined
that such delivery was required under the Securities Act and was not so made.
(d) In case any action shall be brought against any
Underwriter or any person controlling such Underwriter, based upon any
preliminary prospectus, the Registration Statement or the Prospectus or any
amendment or supplement thereto and with respect to which indemnity may be
sought against the Company or the Selling Stockholder, such Underwriter shall
promptly notify the Company or the Selling Stockholder, as applicable, in
writing and the Company or the Selling Stockholder, as applicable, (the
"indemnifying party") shall assume the defense thereof, including the
employment of counsel reasonably satisfactory to such indemnified party and
payment of all fees and expenses. Any
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Underwriter or any such controlling person shall have the right to employ
separate counsel in any such action and participate in the defense thereof, but
the fees and expenses of such counsel shall be at the expense of such
Underwriter or such controlling person unless (i) the employment of such
counsel has been specifically authorized in writing by the Company, (ii) the
indemnifying part shall have failed to assume the defense and employ counsel or
(iii) the named parties to any such action (including any impleaded parties)
include both such Underwriter or such controlling person and the indemnifying
party and such Underwriter or such controlling person shall have been advised
by such counsel that there may be one or more legal defenses available to it
which are different from or additional to those available to the indemnifying
part (in which case the indemnifying party shall not have the right to assume
the defense of such action on behalf of such Underwriter or such controlling
person, it being understood, however, that the indemnifying party shall not, in
connection with any one such action or separate but substantially similar or
related actions in the same jurisdiction arising out of the same general
allegations or circumstances, be liable for the fees and expenses of more than
one separate firm of attorneys (in addition to any local counsel) for all such
Underwriters and controlling persons, which firm shall be designated in writing
by Donaldson, Lufkin & Jenrette Securities Corporation and that all such fees
and expenses shall be reimbursed as they are incurred). A Seller shall not be
liable for any settlement of any such action effected without the written
consent of such Seller but if settled with the written consent of such Seller,
such Seller agrees to indemnify and hold harmless any Underwriter and any such
controlling person from and against any loss or liability by reason of such
settlement. Notwithstanding the immediately preceding sentence, if in any case
where the fees and expenses of counsel are at the expense of the indemnifying
party and an indemnified party shall have requested the indemnifying party to
reimburse the indemnified party for such fees and expenses of counsel as
incurred, such indemnifying party agrees that it shall be liable for any
settlement of any action effected without its written consent if (i) such
settlement is entered into more than forty business days after the receipt by
such indemnifying party of the aforesaid request and (ii) such indemnifying
party shall have failed to reimburse the indemnified party in accordance with
such request for reimbursement prior to the date of such settlement. No
indemnifying party shall, without the prior written consent of the indemnified
party, effect any settlement of any pending or threatened proceeding in respect
of which any indemnified party is or could have been a party and indemnity
could have been sought hereunder by such indemnified party, unless such
settlement includes an unconditional release of such indemnified
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<PAGE> 22
party from all liability on claims that are the subject matter of such
proceeding.
(e) Each Underwriter agrees, severally and not jointly, to
indemnify and hold harmless the Company, its directors, its officers who sign
the Registration Statement, any person controlling the Company within the
meaning of Section 15 of the Act or Section 20 of the Exchange Act, each
Selling Stockholder and each person, if any, controlling such Selling
Stockholder within the meaning of Section 15 of the Act or Section 20 of the
Exchange Act to the same extent as the foregoing indemnity from the Sellers to
each Underwriter but only with reference to information relating to such
Underwriter furnished in writing by or on behalf of such Underwriter through
you expressly for use in the Registration Statement, the Prospectus or any
preliminary prospectus. In case any action shall be brought against the
Company, any of its directors, any such officer or any person controlling the
Company or any Selling Stockholder or any person controlling such Selling
Stockholder based on the Registration Statement, the Prospectus or any
preliminary prospectus and in respect of which indemnity may be sought against
any Underwriter, the Underwriter shall have the rights and duties given to the
Sellers (except that if any Seller shall have assumed the defense thereof, such
Underwriter shall not be required to do so, but may employ separate counsel
therein and participate in the defense thereof but the fees and expenses of
such counsel shall be at the expense of such Underwriter), and the Company, its
directors, any such officers and any person controlling the Company and the
Selling Stockholder and any person controlling such Selling Stockholder shall
have the rights and duties given to the Underwriter, by Section 8(d) hereof.
(f) If the indemnification provided for in this Section 8 is
unavailable to an indemnified party in respect of any losses, claims, damages,
liabilities or judgments referred to therein, then each indemnifying party, in
lieu of indemnifying such indemnified party, shall contribute to the amount
paid or payable by such indemnified party as a result of such losses, claims,
damages, liabilities and judgments (i) in such proportion as is appropriate to
reflect the relative benefits received by the Sellers on the one hand and the
Underwriters on the other hand from the offering of the Shares or (ii) if the
allocation provided by clause (i) above is not permitted by applicable law, in
such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the Sellers and
the Underwriters in connection with the statements or omissions which resulted
in such losses, claims, damages, liabilities or judgments, as well as any other
relevant equitable considerations. The relative benefits received by the
Sellers and the Underwriters shall be deemed to
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<PAGE> 23
be in the same proportion as the total net proceeds from the offering (before
deducting expenses) received by the Sellers, and the total underwriting
discounts and commissions received by the Underwriters, bear to the total price
to the public of the Shares, in each case as set forth in the table on the
cover page of the Prospectus. The relative fault of the Sellers and the
Underwriters shall be determined by reference to, among other things, whether
the untrue or alleged untrue statement of a material fact or the omission to
state a material fact relates to information supplied by the Company, the
Selling Stockholder or the Underwriters and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission.
The Sellers and the Underwriters agree that it would not be
just and equitable if contribution pursuant to this Section 8(f) were
determined by pro rata allocation (even if the Underwriters were treated as one
entity for such purpose) or by any other method of allocation which does not
take account of the equitable considerations referred to in the immediately
preceding paragraph. The amount paid or payable by an indemnified party as a
result of the losses, claims, damages, liabilities or judgments referred to in
the immediately preceding paragraph shall be deemed to include, subject to the
limitations set forth above, any legal or other expenses reasonably incurred by
such indemnified party in connection with investigating or defending any such
action or claim. Notwithstanding the provisions of this Section 8, no
Underwriter shall be required to contribute any amount in excess of the amount
by which the total price at which the Shares underwritten by it and distributed
to the public were offered to the public exceeds the amount of any damages
which such Underwriter has otherwise been required to pay by reason of such
untrue or alleged untrue statement or omission or alleged omission. No person
guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of
the Act) shall be entitled to contribution from any person who was not guilty
of such fraudulent misrepresentation. The Underwriters' obligations to
contribute pursuant to this Section 8(f) are several in proportion to the
respective number of Shares purchased by each of the Underwriters hereunder and
not joint. Notwithstanding the provisions of this Section 8, the Selling
Stockholder shall not be required to contribute any amount in excess of the
amount by which the aggregate purchase price received by the Selling
Stockholder from the sale of the Selling Stockholder's Shares hereunder exceeds
the amount of any damages that such Selling Stockholder has otherwise been
required to pay to persons who also have claims against the Underwriter by
reason of the misstatement or omission that would have given rise to such
indemnification.
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<PAGE> 24
(g) Each Seller hereby designates Corporation Trust Company,
[ADDRESS OF COMPANY], (a Delaware corporation) as its authorized agent, upon
which process may be served in any action, suit or proceeding which may be
instituted in any state or federal court in the State of New York by any
Underwriter or person controlling an Underwriter asserting a claim for
indemnification or contribution under or pursuant to this Section 8, and each
Seller will accept the jurisdiction of such court in such action, and waives,
to the fullest extent permitted by applicable law, any defense based upon lack
of personal jurisdiction or venue. A copy of any such process shall be sent or
given to such Seller, at the address for notices specified in Section 13
hereof.
9. Conditions of Underwriters' Obligations. The several
obligations of the Underwriters under this Agreement are subject to the
satisfaction of each of the following conditions:
(a) All the representations and warranties of the Company
contained in this Agreement shall be true and correct on the Closing
Date and the Option Closing Date with the same force and effect as if
made on and as of the Closing Date or the Option Closing Date, as the
case may be.
(b) The Registration Statement shall have become effective
not later than 5:00 P.M., (and in the case of a Registration Statement
filed under 462(b) of the Act, not later than 10:00 p.m.) New York
City time, on the date of this Agreement or at such later date and
time as you may approve in writing, and at the Closing Date and the
Option Closing Date, as the case be, no stop order suspending the
effectiveness of the Registration Statement shall have been issued and
no proceedings for that purpose shall have been commenced or shall be
pending before or contemplated by the Commission.
(c) (i) Since the date of the latest balance sheet included
in the Registration Statement and the Prospectus, there shall not have
been any material adverse change, or any development involving a
prospective material adverse change, in the condition, financial or
otherwise, or in the earnings, affairs or business prospects, whether
or not arising in the ordinary course of business, of the Company,
(ii) since the date of the latest balance sheet included in the
Registration Statement and the Prospectus there shall not have been
any change, or any development involving a prospective material
adverse change, in the capital stock or in the long-term debt of the
Company from that
-24-
<PAGE> 25
set forth in the Registration Statement and Prospectus, (iii) the
Company and its subsidiaries shall have no liability or obligation,
direct or contingent, which is material to the Company and its
subsidiaries, taken as a whole, other than those reflected in the
Registration Statement and the Prospectus and (iv) on the Closing Date
and the Option Closing Date you shall have received a certificate
dated the Closing Date, and the Option Closing Date, as the case may
be, signed by John E. Drury and Earl E. DeFrates, in their capacities
as the Client Executive Officer and Chief Executive Officer of the
Company, confirming the matters set forth in paragraphs (a), (b), and
(c) of this Section 9.
(d) All the representations and warranties of the Selling
Stockholder contained in this Agreement shall be true and correct on
the Closing Date with the same force and effect as if made on and as
of the Closing Date and you shall have received a certificate to such
effect, dated the Closing Date, from each Selling Stockholder.
(e) You shall have received on the Closing Date and the
Option Closing Date an opinion (satisfactory to you and counsel for
the Underwriters), dated the Closing Date or the Option Closing, as
applicable, of Andrews & Kurth L.L.P., counsel for the Company and the
Selling Stockholder, to the effect that:
(i) the Company has been duly incorporated, is
validly existing as a corporation in good standing under the
laws of its jurisdiction of incorporation and has the
corporate power and authority required to carry on its
business as it is currently being conducted and to own, lease
and operate its properties;
[(ii) the Company and each of its subsidiaries is
duly qualified and is in good standing as a foreign
corporation authorized to do business in each jurisdiction in
which the nature of its business or its ownership or leasing
of property requires such qualification, except where the
failure to be so qualified would not have a material adverse
effect on the Company and its subsidiaries, taken as a whole;]
-25-
<PAGE> 26
(iii) the Shares to be issued and sold by the
Company hereunder have been duly authorized, and when issued
and delivered to the Underwriters against payment therefor as
provided by this Agreement, will have been validly issued and
will be fully paid and non-assessable, and the issuance of
such Shares is not subject to any statutory preemptive rights
or, to the knowledge of such counsel, any other similar
rights;
(iv) this Agreement has been duly authorized,
executed and delivered by the Company and is a valid and
binding agreement of the Company enforceable in accordance
with its terms (except as enforcement of rights to indemnity
and contribution thereunder may be limited under applicable
laws or principles of public policy and subject to the
qualifications that the enforceability of the Company's
obligations thereunder may be limited by bankruptcy,
insolvency, reorganization, or other laws relating to or
affecting creditors' rights generally and by general
principles of equity (regardless of whether such
enforceability is considered in a proceeding is equity or at
law));
(v) the authorized capital stock of the Company,
including the Common Stock, conforms as to legal matters to
the description thereof contained in the Prospectus;
(vi) the Registration Statement has become effective
under the Act, no stop order suspending its effectiveness has
been issued and no proceedings for that purpose are, to the
knowledge of such counsel, pending before or contemplated by
the Commission;
(vii) the statements under the captions "Description
of USA Waste Capital Stock" in the Proxy Statement and
"Underwriting" in the Prospectus and Item 15 of Part II of the
Registration Statement insofar as such statements constitute a
summary of legal matters or documents referred to therein,
fairly present the information called for with respect to such
legal matters or documents;
-26-
<PAGE> 27
(viii) the execution, delivery and performance of
this Agreement by the Company and the Selling Stockholder,
compliance by the Company and the Selling Stockholder with all
the provisions hereof and the consummation of the transactions
contemplated hereby will not require any consent, approval,
authorization or other order of any court, regulatory body,
administrative agency or other governmental body (except such
as may be required under the Act or other securities or Blue
Sky laws) and will not conflict with or constitute a breach of
any of the terms or provisions of, or a default under, the
charter or by-laws of the Company;
(ix) to such counsel's knowledge, there are no legal
or governmental proceeding pending or threatened to which the
Company is a party or to which any of its property is subject
which is required to be described in the Registration
Statement or the Prospectus and is not so described, or of any
contract or other document which is required to be described
in the Registration Statement or the Prospectus or is required
to be filed as an exhibit to the Registration Statement which
is not described or filed as required; such counsel does not
have any reason to believe that the description of litigation
in the Prospectus is not accurate and complete in all material
respects;
(x) the Company is not an "investment company" or a
company "controlled" by an "investment company" within the
meaning of the Investment Company Act of 1940, as amended;
(xi) (1) the Registration Statement, the Prospectus,
any supplement or amendment thereto and each document filed
pursuant to the Exchange Act and incorporated or deemed to be
incorporated by reference in the Prospectus (except for
financial statements, financial and statistical information
contained therein as to which no opinion need be expressed)
comply as to form in all material respects with the Act, and
(2) such counsel believes that (except for financial
-27-
<PAGE> 28
statements, financial and statistical information contained
therein, as aforesaid) the Registration Statement and the
prospectus included therein at the time the Registration
Statement became effective did not contain any untrue
statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the
statements therein not misleading, and that the Prospectus, as
amended or supplemented, if applicable (except for financial
statements, and financial and statistical information, as
aforesaid) does not contain any untrue statement of a material
fact or omit to state a material fact necessary in order to
make the statements therein, in the light of the
circumstances under which they were made, not misleading;
(f) You shall have received on the Closing Date and the
Option Closing Date an opinion (satisfactory to you and counsel for
the Underwriters), dated the Closing Date, of Snell & Smith L.L.P.,
counsel for the Company, to the effect that:
(i) each of the Company's subsidiaries has been duly
incorporated, is validly existing as a corporation in good
standing under the laws of its jurisdiction of incorporation
and has the corporate power and authority required to carry on
its business as it is currently being conducted and to own,
lease and operate its properties;
[(ii) the Company and each of its subsidiaries is
duly qualified and is in good standing as a foreign
corporation authorized to do business in each jurisdiction in
which the nature of its business or its ownership or leasing
of property requires such qualification, except where the
failure to be so qualified would not have a material adverse
effect on the Company and its subsidiaries, taken as a whole;]
(iii) all of the outstanding shares of capital stock
of, or other ownership interests in, each of the Company's
subsidiaries have been duly and validly authorized and issued
and are fully paid and
-28-
<PAGE> 29
non-assessable, and are owned by the Company, free and clear
of any security interest, claim, lien, encumbrance or adverse
interest of any nature;
(iv) all the outstanding shares of Common Stock
(including the Shares to be sold by the Selling Stockholder)
have been duly authorized and validly issued and are fully
paid, non-assessable and not subject to any statutory
preemptive rights or, to the knowledge of such counsel, any
other similar rights;
(v) neither the Company nor any of its subsidiaries
is in violation of its respective charter or by-laws and, to
the best of such counsel's knowledge after due inquiry,
neither the Company nor any of its subsidiaries is in default
in the performance of any obligation, agreement or condition
contained in any bond, debenture, note or any other evidence
of indebtedness or in any other agreement, indenture or
instrument material to the conduct of the business of the
Company and its subsidiaries, taken as a whole, to which the
Company or any of its subsidiaries is a party or by which it
or any of its subsidiaries or their respective property is
bound;
(vi) the execution, delivery and performance of this
Agreement by the Company, compliance by the Company with all
the provisions hereof and the consummation of the transactions
contemplated hereby will not conflict with or constitute a
breach of any of the terms or provisions of, or a default
under, the charter or by-laws of any of the Company's
subsidiaries or any agreement, indenture or other instrument
to which the Company or any of its subsidiaries is a party or
by which the Company or any of its subsidiaries or their
respective properties are bound, or violate or conflict with
any laws, administrative regulations or rulings or court
decrees applicable to the Company or any of its subsidiaries
or their respective properties;
-29-
<PAGE> 30
(vii) to such counsel's knowledge there are no legal
or governmental proceedings pending or threatened to which
the Company or any of its subsidiaries is a party or to which
any of their respective property is subject which is required
to be described in the Registration Statement or the
Prospectus and is not so described, or of any contract or
other document which is required to be described in the
Registration Statement or the Prospectus or is required to be
filed as an exhibit to the Registration Statement which is
not described or filed as required; such counsel does not
have any reason to believe that the description of litigation
in the Prospectus is not accurate and complete in all material
respects;
(viii) to such counsel's knowledge, except as
described in the Prospectus, neither the Company nor any of
its subsidiaries has violated any Environmental Laws, nor any
federal or state law relating to discrimination in the hiring,
promotion or pay of employees nor any applicable federal or
state wages and hours laws, nor any provisions of the Employee
Retirement Income Security Act or the rules and regulations
promulgated thereunder, which in each case might result in any
material adverse change in the business, prospects, financial
condition or results of operation of the Company and its
subsidiaries, taken as a whole;
(ix) to such counsel's knowledge, the Company and
each of its subsidiaries has such permits, licenses,
franchises and authorizations of governmental or regulatory
authorities ("permits"), including, without limitation, under
any applicable Environmental Laws, as are necessary to own,
lease and operate its respective properties and to conduct its
business in the manner described in the Prospectus except
where the failure to have such permits would not have a
material adverse effect on the Company and its subsidiaries
taken as a whole; to such counsel's knowledge, the Company and
each of its subsidiaries has fulfilled and performed
-30-
<PAGE> 31
all of its material obligations with respect to such permits
and no event has occurred which allows, or after notice or
lapse of time would allow, revocation or termination thereof
or results in any other material impairment of the rights of
the holder of any such permit, subject in each case to such
qualification as may be set forth in the Prospectus; and,
except as described in the Prospectus, such permits contain no
restrictions that are materially burdensome to the Company or
any of its subsidiaries;
(x) to such counsel's knowledge, no holder of any
security of the Company has any right to require registration
of shares of Common Stock or any other security of the Company
as a result of filing the Registration Statement, which have
not been waived;
(xi) such counsel believes that (except for
financial statements, financial and statistical information
contained therein, as aforesaid) the Registration Statement
and the prospectus included therein at the time the
Registration Statement became effective did not contain any
untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to
make the statements therein not misleading, and that the
Prospectus, as amended or supplemented, if applicable (except
for financial statements, and financial and statistical
information, as aforesaid) does not contain any untrue
statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not
misleading;
(xii) all descriptions in the Prospectus of
statutes, regulations or legal or governmental proceedings in
all material respects are accurate and fairly present the
information required to be shown;
(g) You shall have received on the Closing Date and the
Option Closing Date an opinion (satisfactory to
-31-
<PAGE> 32
you and counsel for the underwriters), dated the Closing Date or the
Option Closing Date, as applicable, of __________, counsel for the
Selling Stockholder, to the effect that:
(i) this Agreement has been duly authorized,
executed and delivered by the Selling Stockholder and is a
valid and binding agreement of the Selling Stockholder
enforceable in accordance with its terms (except as rights to
indemnity and contribution hereunder may be limited by
applicable law or public policy, and subject to bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium
or other laws and rules of law affecting the enforcement
generally of creditors' rights and remedies and to an implied
duty of good faith and to general principles of equity
(regardless of whether such enforceability is considered in a
proceeding at law or in equity));
(ii) the execution, delivery and performance of this
Agreement by the Selling Stockholder, compliance by the
Selling Stockholder with all the provisions hereof and the
consummation of the transactions contemplated hereby will not
require any consent, approval, authorization or other order of
any court, regulatory body, administrative agency or other
governmental body (except such as may be required under the
Act or other securities or Blue Sky laws) and will not
conflict with or constitute a breach of any of the terms or
provisions of, or a default under, the charter or by-laws of
the Selling Stockholder or any material agreement, indenture
or other instrument to which the Selling Stockholder is a
party or by which the Selling Stockholder or its properties
are bound, or violate or conflict with any laws,
administrative regulations or rulings or court decrees
applicable to the Selling Stockholder or its properties (other
than federal or state securities or blue sky laws, as to which
such counsel need not opine);
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<PAGE> 33
(iii) the Custody Agreement has been duly
authorized, executed and delivered by the Selling Stockholder
and is a valid and binding agreement of the Selling
Stockholder enforceable in accordance with its terms (except
as enforcement of rights to indemnity and contribution
thereunder may be limited under applicable laws or public
policy, and subject to bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium or other laws and rules
of law affecting the enforcement generally of creditors'
rights and remedies and to an implied duty of good faith and
to general principles of equity (regardless of whether such
enforceability is considered in a proceeding at law or in
equity));
(iv) the Selling Stockholder has full legal right,
power and authority, and any approval required by law (other
than any approval imposed by federal or state securities and
Blue Sky laws) to sell, assign, transfer and deliver the
Shares to be sold by it in the manner provided in this
Agreement and the Custody Agreement;
(v) upon delivery of certificates for the shares to
be sold by the Selling Stockholder under this Agreement and
the payment therefor as contemplated by this Agreement, each
Underwrite that is a "bona fide purchaser" (as defined in
Section ____ of the New York Uniform Commercial Code) will
acquire all the rights of the Selling Stockholder in such
Shares, free of any adverse claim (assuming solely for
purposes of this opinion that such sale is governed by Article
8 of the New York Uniform Commercial Code); and
(vi) the power of attorney signed by the Selling
Stockholder appointing Earl E. DeFrates and Gregory T.
Sangalis, or either of them, as his attorney-in-fact to the
extent set forth therein with regard to the transactions
contemplated hereby and by the Registration Statement has been
duly authorized, executed and delivered by or on behalf of the
Selling Stockholder and are
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<PAGE> 34
valid and binding instruments of the Selling Stockholder
enforceable in accordance with its terms subject to
bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium or other laws and rules of law affecting the
enforcement generally of creditors' rights and remedies and to
an implied duty of good faith and to general principles of
equity (regardless of whether such enforceability is
considered in a proceeding at law or in equity), and pursuant
to such power of attorney, the Selling Stockholder has
authorized Gregory T. Sangalis and Earl E. DeFrates, or either
of them, to execute and deliver on its behalf this Agreement
and any other document necessary or desirable in connection
with transactions contemplated hereby and to deliver the
Shares to be sold by them pursuant to this Agreement
Andrews & Kurth L.L.P. and Snell & Smith L.L.P., in giving
their opinions with respect to the matters covered by clauses (e)(ix)
and (f)(xi) may state that their opinions and beliefs are based upon
their participation in the preparation of the Registration Statement
and Prospectus and any amendments or supplements thereto and review
and discussion of the contents thereof, but are without independent
check or verification except as specified.
In giving the opinions described in clause (e), (f) and (g)
above, such counsel may rely as to factual matters on information set
forth in certificates of the Sellers or public officials.
The opinion of Andrews & Kurth L.L.P. and Snell & Smith L.L.P.
described in paragraphs (e) and (f) above shall be rendered to you at
the request of the Company and shall so state therein and the opinion
of _________ described in paragraph (g) above shall be rendered to you
at the request of the Selling Stockholder and shall so state therein.
(h) You shall have received on the Closing Date and the
Option Closing Date an opinion, dated the Closing Date or the Option
Closing Date, as the case may be, of McDermott, Will & Emery, counsel
for the Underwriters, in form and substance satisfactory to you. In
giving such opinion with respect to the
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<PAGE> 35
matters covered by clause (xvii) such counsel may state that their
opinion and belief are based upon their participation in the
preparation of the Registration Statement and Prospectus and any
amendments or supplements thereto and review and discussion of the
contents thereof, but are without independent check or verification
except as specified.
(i) You shall have received a letter on and as of the Closing
Date and the Option Closing Date, in form and substance satisfactory
to you, (i) from Coopers & Lybrand LLP, independent public
accountants, with respect to the financial statements and certain
financial information contained in the Registration Statement and the
Prospectus and substantially in the form and substance of the letter
delivered to you by Coopers & Lybrand LLP on the date of this
Agreement, and (ii) from Deloitte & Touche L.L.P., independent public
accountants, with respect to the financial statements and certain
financial information contained in the Registration Statement and the
Prospectus and in each case substantially in the form and substance of
the letter delivered to you by such firm on the date of this
Agreement.
(j) The Company and the Selling Stockholder shall not have
failed at or prior to the Closing Date to perform or comply with any
of the agreements herein contained and required to be performed or
complied with by the Company at or prior to the Closing Date or the
Option Closing Date as the case may be.
(k) You shall have received on the Closing Date, a
certificate of each Selling Stockholder who is not a U.S. Person to
the effect that such Selling Stockholder is not a U.S. Person (as
defined under applicable U.S. federal tax legislation), which
certificate may be in the form of a properly completed and executed
United States Treasury Department Form W-9 (or other applicable form
or statement specified by Treasury Department regulations in lieu
thereof).
10. Effective Date of Agreement and Termination. This
Agreement shall become effective upon the later of (i) execution of this
Agreement and (ii) when notification of the effectiveness of the Registration
Statement has been released by the Commission.
This Agreement may be terminated at any time prior to the
Closing Date by you by written notice to the Sellers if any
-35-
<PAGE> 36
of the following has occurred: (i) since the respective dates as of which
information is given in the Registration Statement and the Prospectus, any
adverse change or development involving a prospective adverse change in the
condition, financial or otherwise, of the Company or any of its subsidiaries or
the earnings, affairs, or business prospects of the Company or any of its
subsidiaries, whether or not arising in the ordinary course of business, which
would, in your judgment, make it impracticable to market the Shares on the
terms and in the manner contemplated in the Prospectus, (ii) any outbreak or
escalation of hostilities or other national or international calamity or crisis
or change in economic conditions or in the financial markets of the United
States or elsewhere that, in your judgment, is material and adverse and would,
in your judgment, make it impracticable to market the Shares on the terms and
in the manner contemplated in the Prospectus, (iii) the suspension or material
limitation of trading in securities on the New York Stock Exchange, the
American Stock Exchange or the NASDAQ National Market System or limitation on
prices for securities on any such exchange or National Market System, (iv) the
enactment, publication, decree or other promulgation of any federal or state
statute, regulation, rule or order of any court or other governmental authority
which in your opinion materially and adversely affects, or will materially and
adversely affect, the business or operations of the Company or any Subsidiary,
(v) the declaration of a banking moratorium by either federal or New York State
authorities or (vi) the taking of any action by any federal, state or local
government or agency in respect of its monetary or fiscal affairs which in your
opinion has a material adverse effect on the financial markets in the United
States.
If on the Closing Date or on an Option Closing Date, as the
case may be, any one or more of the Underwriters shall fail or refuse to
purchase the Firm Shares or Additional Shares, as the case may be, which it or
they have agreed to purchase hereunder on such date and the aggregate number of
Firm Shares or Additional Shares, as the case may be, which such defaulting
Underwriter or Underwriters, as the case may be, agreed but failed or refused
to purchase is not more than one-tenth of the total number of Shares to be
purchased on such date by all Underwriters, each non-defaulting Underwriter
shall be obligated severally, in the proportion which the number of Firm Shares
set forth opposite its name in Schedule I bears to the total number of Firm
Shares which all the non-defaulting Underwriters, as the case may be, have
agreed to purchase, or in such other proportion as you may specify, to purchase
the Firm Shares or Additional Shares, as the case may be, which such defaulting
Underwriter or Underwriters, as the case may be, agreed but failed or refused
to purchase on such date; provided that in no event shall the number of Firm
Shares or Additional Shares, as the case may be, which
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<PAGE> 37
any Underwriter has agreed to purchase pursuant to Section 2 hereof be
increased pursuant to this Section 10 by an amount in excess of one-ninth of
such number of Firm Shares or Additional Shares, as the case may be, without
the written consent of such Underwriter. If on the Closing Date or on an
Option Closing Date, as the case may be, any Underwriter or Underwriters shall
fail or refuse to purchase Firm Shares, or Additional Shares, as the case may
be, and the aggregate number of Firm Shares or Additional Shares, as the case
may be, with respect to which such default occurs is more than one-tenth of the
aggregate number of Shares to be purchased on such date by all Underwriters and
arrangements satisfactory to you and the applicable Sellers for purchase of
such Shares are not made within 48 hours after such default, this Agreement
will terminate without liability on the part of any non-defaulting Underwriter
and the applicable Sellers. In any such case which does not result in
termination of this Agreement, either you or the Sellers shall have the right
to postpone the Closing Date or the applicable Option Closing Date, as the case
may be, but in no event for longer than seven days, in order that the required
changes, if any, in the Registration Statement and the Prospectus or any other
documents or arrangements may be effected. Any action taken under this
paragraph shall not relieve any defaulting Underwriter from liability in
respect of any default of any such Underwriter under this Agreement.
11. Agreements of the Selling Stockholder. Each Selling
Stockholder severally agrees with you and the Company:
(a) To pay or to cause to be paid all transfer taxes with
respect to the Shares to be sold by such Selling Stockholder; and
(b) To take all reasonable actions in cooperation with the
Company and the Underwriters to cause the Registration Statement to
become effective at the earliest possible time, to do and perform all
things to be done and performed by the Selling Stockholder under this
Agreement prior to the Closing Date and to satisfy all conditions
precedent required to be satisfied by the Selling Stockholder to the
delivery of the Shares pursuant to this Agreement.
12. Miscellaneous. Notices given pursuant to any provision
of this Agreement shall be addressed as follows: (a) if to the Company, to USA
Waste Services, Inc., 5000 Quorum Drive, Suite 300, Dallas, Texas 75240, (b) if
to the Selling Stockholder, to the Company at the address set forth above and
(c) if to any Underwriter or to you, to you c/o Donaldson, Lufkin & Jenrette
Securities Corporation, 140 Broadway, New York, New
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<PAGE> 38
York 10005, Attention: Syndicate Department, or in any case to such other
address as the person to be notified may have requested in writing.
The respective indemnities, contribution agreements,
representations, warranties and other statements of the Selling Stockholder,
the Company, its officers and directors and of the several Underwriters set
forth in or made pursuant to this Agreement shall remain operative and in full
force and effect, and will survive delivery of and payment for the Shares,
regardless of (i) any investigation, or statement as to the results thereof,
made by or on behalf of any Underwriter or by or on behalf of the Sellers, the
officers or directors of the Company or any controlling person of the Sellers,
(ii) acceptance of the Shares and payment for them hereunder and (iii)
termination of this Agreement.
If this Agreement shall be terminated by the Underwriters
because of any failure or refusal on the part of the Sellers to comply with the
terms or to fulfill any of the conditions of this Agreement, the Company agrees
to reimburse the several Underwriters for all out-of-pocket expenses (including
the fees and disbursements of counsel) reasonably incurred by them.
Except as otherwise provided, this Agreement has been and is
made solely for the benefit of and shall be binding upon the Sellers, the
Underwriters, any controlling persons referred to herein and their respective
successors and assigns, all as and to the extent provided in this Agreement,
and no other person shall acquire or have any right under or by virtue of this
Agreement. The term "successors and assigns" shall not include a purchaser of
any of the Shares from any of the several Underwriters merely because of such
purchase.
This Agreement shall be governed and construed in accordance
with the laws of the State of New York.
This Agreement may be signed in various counterparts which
together shall constitute one and the same instrument.
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<PAGE> 39
Please confirm that the foregoing correctly sets forth the
agreement between the Company, the Selling Stockholder and the several
Underwriters.
Very truly yours,
USA WASTE SERVICES, INC.
By____________________________
Title:
THE SELLING STOCKHOLDER NAMED
IN SCHEDULE II HERETO
By____________________________
Attorney-in-fact
DONALDSON, LUFKIN & JENRETTE
SECURITIES CORPORATION
DEUTSCHE MORGAN GRENFELL/
C.J. LAWRENCE INC.
SMITH BARNEY INC.
Acting severally on behalf of
themselves and the several
Underwriters named in
Schedule I hereto
By DONALDSON, LUFKIN & JENRETTE
SECURITIES CORPORATION
By__________________________
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<PAGE> 40
SCHEDULE I
<TABLE>
<CAPTION>
Number of Firm Shares
Underwriters to be Purchased
------------ ---------------------
<S> <C> <C>
Donaldson, Lufkin & Jenrette
Securities Corporation
Deutsche Morgan Grenfell/
C.J. Lawrence Inc.
Smith Barney Inc.
______________________
Total
</TABLE>
<PAGE> 41
SCHEDULE II
Selling Stockholder
<TABLE>
<CAPTION>
Number of Firm
Name Shares Being Sold
---- -----------------
<S> <C> <C>
The First National
Bank of Boston 137,500
________________
137,500
Total
</TABLE>
<PAGE> 42
ANNEX I
Required Stockholder Lock-ups
Robert F. Smith
John G. Rangos, Jr.
John Rangos Development Corporation, Inc.
