Registration No. 333-62473-01
As filed with the Securities and Exchange Commission on
October 16, 1998.
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
POST-EFFECTIVE AMENDMENT NO. 1
ON
FORM S-8
TO
FORM S-4
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933*
ALLIED WASTE INDUSTRIES, INC.
(Exact Name of Registrant as Specified in Its Charter)
Delaware 88-0228636
(State or Other Jurisdiction of (I.R.S. Employer Identification Number)
Incorporation or Organization)
15880 North Greenway/Hayden Loop, Suite 100
Scottsdale, Arizona 85260
(602) 423-2946
(Address, including zip code, and telephone number, including area code, of
registrant's principal executive offices)
AMERCIAN DISPOSAL SERVICES, INC.
AMENDED AND RESTATED 1996 STOCK OPTION PLAN
(Full Title of Plan)
Henry L. Hirvela
Allied Waste Industries, Inc.
15880 North Greenway/Hayden Loop, Suite 100
Scottsdale, Arizona 85260
(602) 423-2946
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
With copies to:
Karen McConnell
Fennemore Craig
3003 N. Central Avenue
Suite 2600
Phoenix, Arizona 85012
(602) 916-5307
APPROXIMATE DATE OF COMMENCEMENT OF THE PROPOSED SALE OF SECURITIES PURSUANT TO
THE PLAN: Promptly after the filing of this Post-Effective Amendment.
*Filed as a Post-Effective Amendment on Form S-8 to such Form S-4 Registration
Statement pursuant to the procedure described herein. See "INTRODUCTORY
STATEMENT".
INTRODUCTORY STATEMENT
Allied Waste Industries, Inc. (the "Company" or "Allied") hereby amends
its Registration Statement on Form S-4 (No. 333-62473) (the "Form S-4"), by
filing this Post-Effective Amendment No. 1 on Form S-8 (the `"Post-Effective
Amendment") relating to the sale of up to 3,156,877 shares of the common stock,
par value $.01 per share, of Allied ("Allied Common Stock") issuable upon the
exercise of stock options granted under the American Disposal Services, Inc.
Amended and Restated 1996 Stock Option Plan (the "Plan").
On October 15, 1998, AWIN II Acquisition Corporation, a Delaware
corporation and a wholly-owned subsidiary of Allied, was merged with and into
American Disposal Services, Inc., a Delaware corporation ("American"). As a
result of such merger (the "Merger"), American has become a wholly-owned
subsidiary of Allied and each outstanding share of common stock, par value $.01
per share, of American ("American Common Stock") has been converted into 1.65
shares of Allied Common Stock. As agreed by Allied and American, each
outstanding option issued pursuant to the Plan will no longer be exercisable for
shares of American Common Stock but, instead, will constitute an option to
acquire, on the same terms and conditions as were applicable under such option,
shares of Allied Common Stock in lieu of shares of American Common Stock on the
basis of 1.65 shares of Allied Common Stock for each share of American Common
Stock.
The designation of the Post-Effective Amendment as Registration No.
333-62473-01 denotes that the Post-Effective Amendment relates only to the
shares of Allied Common Stock issuable upon exercise of stock options under the
Plan and that this is the first Post-Effective Amendment to the Form S-4 filed
with respect to such shares.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The document(s) containing the information specified in Items 1 and 2
of Part I of Form S-8 will be sent or given to employees as specified in Rule
428(b)(1) and, in accordance with the instructions to Part I, are not filed with
the Securities and Exchange Commission (the "Commission") as part of this
Registration Statement.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Certain Documents By Reference
The following documents filed by the Company with the Securities and
Exchange Commission are incorporated herein by reference and made a part hereof:
(i) the Company's Annual Report on Form 10-K for the year ended December 31,
1997; (ii) the Company's Quarterly Reports on Form 10-Q for the quarters ended
March 31, 1998 and June 30, 1998; (iii) the Company's Definitive Proxy Materials
in accordance with Schedule 14A related to the annual meeting held May 28, 1998;
(iv) the Company's Current Reports on Form 8-K dated May 18, 1998, August 20,
1998 and August 28, 1998; (v) the Company's Current Report on Form 8-K/A dated
August 28, 1998; and (vi) the description of the Common Stock set in the
Company's Form 10 dated May 14, 1991.
All documents subsequently filed by the Company pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of a
post-effective amendment which indicates that all securities offered have been
sold or which deregisters all securities then remaining unsold, will be deemed
to be incorporated by reference in this Registration Statement and to be a part
hereof from the date of filing of such documents; provided, however, that the
documents enumerated above or subsequently filed by the Company pursuant to
Sections 13(a), 13(3), 14 and 15(3) of the Exchange Act in each year during
which the offering made hereby are in effect prior to the filing with the
Commission of the Company's Annual Report on From 10-K covering such year shall
not be incorporated by reference herein or be a part hereof from and after the
filing of such Annual Report on Form 10-K. Any statement contained in a document
incorporated or deemed to be incorporated by reference in this Registration
Statement shall be deemed to be modified or superseded for purposes of this
Registration Statement to the extent that a statement contained in this
Registration Statement or in any other subsequently filed document which also is
or is deemed to be incorporated by reference modifies or replaces such
statement. Any statement so modified or superceded shall not be deemed, except
as so modified or superceded, to constitute a part of this Registration
Statement.
Item 4. Description of Securities
The Company's Common Stock is registered under Section 12 of the
Exchange Act.
Item 5. Interest of Named Experts and Counsel
The validity of the issuance of the shares of Common Stock being
offered by the Registration Statement will be passed upon for the Company by
Steven M. Helm, Vice President, Legal, of the Company. As of October 15, 1998,
Mr. Helm beneficially owned 72,494 shares of Allied Common Stock.
Item 6. Indemnification of Directors and Officers
Section 145 of the Delaware General Corporation Law permits a
corporation to indemnify any person who was or is a party or is threatened to be
made a party to any threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative, by reason of the fact
that he is or was a director, officer, employee or agent of the corporation or
is or was serving at the request of the corporation as a director, officer,
employee or agent of another corporation, partnership, joint venture, trust or
other enterprise against expenses, judgments, fines and amounts paid in
settlement actually and reasonably incurred by him in connection with such
action. In an action brought to obtain a judgment in the corporation's favor,
whether by the corporation itself or derivatively by a stockholder, the
corporation may only indemnify for expenses, including attorney's fees, actually
and reasonably incurred in connection with the defense or settlement of such
action, and the corporation may not indemnify for amounts paid in satisfaction
of a judgment or in settlement of the claim. In any such action, no such person
shall have been adjudged liable to the corporation except as claim was brought.
In any other type of proceeding, the indemnification may extend to judgments,
fines and amounts paid in settlement, actually and reasonably incurred in
connection with such other proceeding, as well as to expenses.
The statute does not permit indemnification unless the person seeking
indemnification has acted in good faith and in a manner reasonably believed to
be in, or not opposed to, the best interests of the corporation and, in the case
of criminal actions or proceedings, the person had no reasonable cause to
believe his conduct was unlawful. The statute contains additional limitations
applicable to criminal actions and to actions brought by or in the name of the
corporation. The determination as to whether a person seeking indemnification
has met the required standard of conduct is to be made (1) by a majority vote of
a quorum of disinterested members of the board of directors, (2) by independent
legal counsel in a written opinion, if such a quorum does not exist or if the
disinterested directors so direct, or (3) by the stockholders.
Allied's Certificate of Incorporation and Bylaws require Allied to
indemnify its directors to the fullest extent permitted under Delaware law.
Pursuant to employment agreements entered into by Allied with its executive
officers and certain other key employees, Allied must indemnify such officers
and employees in the same manner and to the same extent that, Allied is required
to indemnify its directors under Allied's Bylaws. Allied's Certificate of
Incorporation limits the personal liability of a director to the corporation or
its stockholders for damages for breach of the director's fiduciary duty.
Allied has purchased insurance on behalf of its directors and officers
against certain liabilities that may be asserted against, or incurred by, such
persons in their capacities as directors or officers of the registrant, or that
may arise out of their status as directors or officers of the registrant,
including liabilities under the federal and state securities laws. Allied has
entered into indemnification agreements to indemnify its director to the extent
permitted under Delaware law.
Item 7. Exemption from Registration Claimed.
Not applicable
Item 8. Exhibits.
Exhibit No. Description of Exhibits
4.1 Restated Certificate of Incorporation of Allied Waste
Industries, Inc.(incorporated by reference to Exhibit
3.1 to Allied's Report on 10-K/A-2 for the fiscal
year ended December 31, 1996).
4.2 Allied Waste Industries, Inc.'s Amended and Restated
By-Laws (incorporated by reference to Exhibit 3.2 to
Allied's Quarterly report on Form 10-Q for the
quarter ended June 30, 1997).
4.3 Indenture relating to the Company's $100 million 12%
Senior Subordinated Notes due 2004 (the "1994 Notes")
dated January 15, 1994 between the Company and First
Trust National Association, as Trustee ("First
Trust"). Exhibit 4.1 to the Company's Registration
Statement on Form S-1 (No. 33-73110) is incorporated
herein by reference.
4.4 Second Supplemental Indenture relating to 1994 Notes
dated June 30, 1994 between the Company and First
Trust. Exhibit 1.1 to the Company's Current Report on
Form 8-K dated December 29, 1994, is incorporated
herein by reference.
4.5 Third Supplemental Indenture relating to 1994 Notes
dated January 31, 1995 between the Company and First
Trust. Exhibit 10.3 to the Company's Quarterly Report
on Form 10-Q dated August 10, 1995, is incorporated
herein by reference.
4.6 Fourth Supplemental Indenture relating to 1994 Notes
dated January 23, 1996 between the Company and First
Trust. Exhibit 10.1 to the Company's Current Report
on Form 8-K dated January 22, 1996, is incorporated
herein by reference.
4.7 Fifth Supplemental Indenture relating to 1994 Notes
dated July 30, 1996 between the Company and First
Trust. Exhibit 10.2 to the Company's Quarterly Report
on Form 10-Q dated August 14, 1996, is incorporated
herein by reference.
4.8 Indenture relating to the Allied Waste North America,
Inc.'s $525 million of 10.25% Senior Subordinated
Notes due 2006 (the "1996 Notes") dated February 28,
1997 between the Company and First Trust. Exhibit 4.1
to the Company's Registration Statement on Form S-4
(No. 333-22575) is incorporated herein by reference.
<PAGE>
Exhibit No. Description of Exhibits
----------- ------------------------
4.9 Indenture, dated as of May 15, 1997, by and among the
Company and First Bank National Association with
respect to the Company's $418 million aggregate face
amount of senior discount notes issued in a private
offering and subsequently exchanged for registered
notes in a Rule 144A offering (the "Senior Discount
Notes"). Exhibit 4.1 to the Company's Registration
Statement on Form S-4 (No. 333-31231) is incorporated
herein by reference.
4.10 Indenture, dated as of December 1, 1996, by and among
the Company, the Guarantors and First Bank National
Association with respect to the 1996 Notes and the
Senior Discount Notes. Exhibit 4.1 to the Company's
Registration Statement on Form S-4 (No. 333-22575) is
incorporated herein by reference.
4.11 First Supplemental Indenture dated December 30, 1996
related to the 1996 Notes. Exhibit 4.2 to the
Company's Registration Statement on Form S-4 (No.
333-22575) is incorporated herein by reference.
4.12 Second Supplemental Indenture dated April 30, 1997
related to the 1996 Notes. Exhibit 4.3 to the
Company's Registration Statement on Form S-4 (No.
333-22575) is incorporated herein by reference.
4.13 Senior Subordinated Guarantee dated as of December 1,
1996 related to the 1996 Notes. Exhibit 4.5 to the
Company's Registration Statement on Form S-4 (No.
333-22575) is incorporated herein by reference.
*4.14 American Disposal Services, Inc. Amended and Restated
1996 Stock Option Plan
*4.15 Amendment to American Disposal Services, Inc. Amended
and Restated 1996 Stock Option Plan
*5.1 Opinion of Steven M. Helm, Vice President, Legal, of
the Company regarding the legality of the securities.
*23.1 Consent of Arthur Andersen LLP.
*23.2 Consent of Ernst & Young LLP.
*23.3 Consent of Sweeney Conrad, P.C
*23.4 Consent of Steven M. Helm (included in Exhibit 5.1)
24.1 Powers of Attorney (previously filed on From S-4
Registration No. 333-62473 on August 28, 1998).
* Filed herewith.
Item 9. Undertakings
The undersigned registrant hereby undertakes: (1) to file, during any
period in which offers or sales are being made, a post-effective amendment to
this registration statement: (i) to include any prospectus required by Section
10(a)(3) of the Securities Act of 1933; (ii) to reflect in the Prospectus any
facts or events arising after the effective date of the registration statement
(or the most recent post-effective amendment thereof) which, individually or in
the aggregate, represent a fundamental change in the information set forth in
the registration statement. Notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered) and any deviation
from the low or high end of the estimated maximum offering range may be
reflected in the form of prospectus filed with the Commission pursuant to Rule
424(b), if, in the aggregate, the changes in volume and price represent no more
than a 20% change in the maximum aggregate offering price set forth in the
"Calculation of Registration Fee" table in the effective registration statement;
(iii) to include any material information with respect to the plan of
distribution not previously disclosed in the registration statement or any
material change to such information in the registration statement provided,
however, that paragraphs 1(i) and 1(ii) do not apply if the registration
statement is on Form S-3 or Form S-8, and the information required to be
included in a post-effective amendment by those paragraphs is contained in
periodic reports filed by the Registrant pursuant to Section 13 to Section 15(d)
of the Securities Exchange Act of 1934 that are incorporated by reference in the
registration statement; (2) that, for the purpose of determining any liability
under the Securities Act of 1933, each such post-effective amendment shall be
deemed to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof; and (3) to remove from registration by
means of a post-effective amendment any of the securities being registered which
remain unsold at the termination of the offering.
The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to section 13(a) or section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to section 15(d) of the
Securities Act of 1934) that is incorporated by reference in the registration
statement shall be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons of
the registrant pursuant to the foregoing provisions, or otherwise, the
registrant has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the Act
and is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the registrant of expenses
incurred or paid by a director, officer or controlling person of the registrant
in the successful defense of any action, suit or proceeding) is asserted by such
director, officer, or controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Act and will be governed by the final adjudication of
such issue.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended,
the Registrant certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-8 and it has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Scottsdale, Arizona on October 15, 1998.
ALLIED WASTE INDUSTRIES, INC.
By: /s/HENRY L. HIRVELA
--------------------------
Henry L. Hirvela
Vice President - Chief Financial Officer
POWER OF ATTORNEY
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons and in the
capacities indicated on October 15, 1998.
Signature Title
-------------- -------
Chairman of the Board of Directors
*
-----------------------------
Roger A. Ramsey
Director, President and Chief
Executive Officer(Principal Executive
* Officer)
------------------------------
Thomas H. Van Weelden
Vice President - Chief Financial Officer
* (Principal Financial Officer)
------------------------------
Henry L. Hirvela
Corporate Controller (Principal
/s/ JAMES S. ENG Accounting Officer)
------------------------------
James S. Eng
* Director
------------------------------
Nolan Lehmann
* Director
------------------------------
David B. Kaplan
* Director
------------------------------
Michael Gross
* Director
------------------------------
Antony P. Ressler
* Director
------------------------------
Howard A. Lipson
* Director
------------------------------
Dennis Hendrix
* Director
-------------------------------
Warren B. Rudman
* Director
--------------------------------
Vincent Tese
/s/ JAMES S. ENG
--------------------------------
* James S. Eng
Attorney-in-fact
<PAGE>
Exhibit Index
Sequentially
Exhibit No. Description of Exhibits Numbered
- ----------- ------------------------ Pages
4.1 Restated Certificate of Incorporation of Allied
Waste Industries, Inc. (incorporated by
reference to Exhibit 3.1 to Allied's Report on
10-K/A-2 for the fiscal year ended December 31,
1996).
4.2 Allied Waste Industries, Inc.'s Amended and Restated
By-Laws (incorporated by reference to Exhibit 3.2 to
Allied's Quarterly report on Form 10-Q for the
quarter ended June 30, 1997).
4.3 Indenture relating to the Company's $100 million
12% Senior Subordinated Notes due 2004 (the
"1994 Notes") dated January 15, 1994 between the
Company and First Trust National Association, as
Trustee ("First Trust"). Exhibit 4.1 to the
Company's Registration Statement on Form S-1
(No. 33-73110) is incorporated herein by
reference.
4.4 Second Supplemental Indenture relating to 1994 Notes
dated June 30, 1994 between the Company and First
Trust. Exhibit 1.1 to the Company's Current Report on
Form 8-K dated December 29, 1994, is incorporated
herein by reference.
4.5 Third Supplemental Indenture relating to 1994 Notes
dated January 31, 1995 between the Company and First
Trust. Exhibit 10.3 to the Company's Quarterly Report
on Form 10-Q dated August 10, 1995, is incorporated
herein by reference.
4.6 Fourth Supplemental Indenture relating to 1994 Notes
dated January 23, 1996 between the Company and First
Trust. Exhibit 10.1 to the Company's Current Report
on Form 8-K dated January 22, 1996, is incorporated
herein by reference.
4.7 Fifth Supplemental Indenture relating to 1994 Notes
dated July 30, 1996 between the Company and First
Trust. Exhibit 10.2 to the Company's Quarterly Report
on Form 10-Q dated August 14, 1996, is incorporated
herein by reference.
4.8 Indenture relating to the Allied Waste North
America, Inc.'s $525 million of 10.25% Senior
Subordinated Notes due 2006 (the "1996 Notes")
dated February 28, 1997 between the Company and
First Trust. Exhibit 4.1 to the Company's
Registration Statement on Form S-4 (No.
333-22575) is incorporated herein by reference.
4.9 Indenture, dated as of May 15, 1997, by and
among the Company and First Bank National
Association with respect to the Company's $418
million aggregate face amount of senior discount
notes issued in a private offering and
subsequently exchanged for registered notes in a
Rule 144A offering (the "Senior Discount
Notes"). Exhibit 4.1 to the Company's
Registration Statement on Form S-4 (No.
333-31231) is incorporated herein by reference.
4.10 Indenture, dated as of December 1, 1996, by and
among the Company, the Guarantors and First Bank
National Association with respect to the 1996
Notes and the Senior Discount Notes. Exhibit
4.1 to the Company's Registration Statement on
Form S-4 (No. 333-22575) is incorporated herein
by reference.
4.11 First Supplemental Indenture dated December 30, 1996
related to the 1996 Notes. Exhibit 4.2 to the
Company's Registration Statement on Form S-4 (No.
333-22575) is incorporated herein by reference.
4.12 Second Supplemental Indenture dated April 30, 1997
related to the 1996 Notes. Exhibit 4.3 to the
Company's Registration Statement on Form S-4 (No.
333-22575) is incorporated herein by reference.
4.13 Senior Subordinated Guarantee dated as of December 1,
1996 related to the 1996 Notes. Exhibit 4.5 to the
Company's Registration Statement on Form S-4 (No.
333-22575) is incorporated herein by reference.
*4.14 American Disposal Services, Inc. Amended and
Restated 1996 Stock Option Plan.
*4.15 Amendment to American Disposal Services, Inc.
Amended and Restated 1996 Stock Option Plan.
*5.1 Opinion of Steven M. Helm, Vice President,
Legal, of the Company regarding the legality of
the securities.
*23.1 Consent of Arthur Andersen LLP.
*23.2 Consent of Ernst & Young LLP.
*23.3 Consent of Sweeney Conrad, P.C.
*23.4 Consent of Steven M. Helm (included in Exhibit
5.1).
24.1 Powers of Attorney (previously filed on Form S-4
Registration No. 333-62473 on August 28, 1998).
Exhibit 4.14
AMERICAN DISPOSAL SERVICES, INC.
AMENDED AND RESTATED
1996 STOCK OPTION PLAN
ARTICLE I.
PURPOSE
The purpose of this AMERICAN DISPOSAL SERVICES, INC. Amended and
Restated 1996 Stock Option Plan (the "Plan") is to enhance the profitability and
value of AMERICAN DISPOSAL SERVICES, INC. (the "Company") and its Affiliates for
the benefit of the Company's stockholders by enabling the Company to offer
Eligible Employees and Consultants of the Company and its Affiliates, as well as
Non-Employee Directors of the Company, Stock Options in the Company, thereby
creating a means to raise the level of stock ownership by Eligible Employees,
Consultants and Non-Employee Directors in order to attract, retain and reward
such individuals and strengthen the mutuality of interests between such
individuals and the Company's stockholders.
ARTICLE II.
DEFINITIONS
For purposes of this Plan, the following terms shall have the following
meanings:
"Affiliate" shall mean (i) any Subsidiary; or (ii) any corporation,
trade or business (including, without limitation, a partnership or
limited liability company) which is controlled 50% or more (whether by
ownership of stock, assets or an equivalent ownership interest or
voting interest) by the Company or one of its Affiliates.
"Board" shall mean the Board of Directors of the Company.
<PAGE>
"Cause" shall mean with
respect to a Participant's Termination of Employment, (i) in the case
where there is no employment or consulting agreement between the
Company or an Affiliate and the Participant, or where there is an
employment or consulting agreement, but such agreement does not define
cause (or words of like import), commission of a felony, a crime
involving moral turpitude, embezzlement, misappropriation of property
of the Company or an Affiliate, any other act involving dishonesty or
fraud with respect to the Company or an Affiliate, a material breach of
a directive which is not cured within a specified time after written
notice of such breach, or repeated failure after written notice to
follow the directives of an appropriate officer or the Board, or (ii)
in the case where there is an employment or consulting agreement
between the Company or an Affiliate and the Participant, termination
that is or would be deemed to be for cause (or words of like import) as
defined under such employment or consulting agreement.
"Code" shall mean the Internal Revenue Code of 1986, as amended,
including the rules and regulations thereunder. Any reference to any
section of the Code shall also be a reference to any successor
provision.
"Committee" shall mean a committee or subcommittee of the Board
appointed from time to time by the Board, which committee or
subcommittee shall consist of two or more non-employee directors, each
of whom is intended to be, to the extent required by Rule 16b-3 and
Section 162(m) of the Code, a "non-employee director" as defined in
Rule 16b-3 and an "outside director" as defined under Section 162(m) of
the Code. To the extent that no Committee exists which has the
authority to administer this Plan, the functions of the Committee shall
be exercised by the Board. If for any reason the appointed Committee
does not meet the requirements of Rule 16b-3 or Section 162(m) of the
Code, such noncompliance with the requirements of Rule 16b-3 and
Section 162(m) of the Code shall not affect the validity of awards,
grants, interpretations or other actions of the Committee.
"Common Stock" shall mean the common stock, $.01 par value, of the
Company.
"Company" shall mean AMERICAN DISPOSAL SERVICES, INC., a Delaware
corporation.
"Consultant" shall mean any natural person who is an adviser
or consultant to the Company or its Affiliates.
"Disability" shall mean total and permanent disability, as defined in
Section 22(e)(3) of the Code.
"Effective Date" shall mean the effective date of this Plan as defined
in Article XII.
"Eligible Employee" shall mean any employee of the Company or its
Affiliates. Notwithstanding the foregoing, with respect to the grant of
Incentive Stock Options, Eligible Employee shall mean any employee of
the Company or any Subsidiary.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended.
"Extraordinary Transaction" shall have the meaning set forth in
Section 4.2(d).
<PAGE>
"Fair Market Value", unless otherwise required by any applicable
provision of the Code or any regulations issued thereunder, shall mean,
as of any date, the last sales price reported for the Common Stock on
the applicable date: (i) as reported on the principal national
securities exchange on which it is then traded or the Nasdaq Stock
Market, Inc. or (ii) if not traded on any such national securities
exchange or the Nasdaq Stock Market, Inc., as quoted on an automated
quotation system sponsored by the National Association of Securities
Dealers. If the Common Stock is not readily tradable on a national
securities exchange, the Nasdaq Stock Market, Inc., or any automated
quotation system sponsored by the National Association of Securities
Dealers, its Fair Market Value shall be set in good faith by the
Committee.
"Incentive Stock Option" shall mean any Stock Option intended to be and
designated as an "incentive stock option" within the meaning of Section
422 of the Code.
"Non-Employee Director" shall mean any director of the Company who
is not an employee of the Company or any Affiliate.
"Non-Qualified Stock Option" shall mean any Stock Option that is not an
Incentive Stock Option.
"Participant" shall mean any Eligible Employee, Consultant or
Non-Employee Director to whom a Stock Option has been granted.
"Rule 16b-3" shall mean Rule 16b-3 under Section 16(b) of the Exchange
Act as then in effect or any successor provisions.
"Section 162(m) of the Code" shall mean the exception for
performance-based compensation under Section 162(m) of the Code.
"Stock Option" shall mean any option to purchase shares of Common Stock
granted to Eligible Employees or Consultants pursuant to Article V or
granted to Non-Employee Directors pursuant to Article VI.
"Subsidiary" shall mean any subsidiary corporation of the Company
within the meaning of Section 424(f) of the Code.
"Ten Percent Stockholder" shall mean a person owning stock possessing
more than 10% of the total combined voting power of all classes of
stock of the Company, any Subsidiary or any parent corporation, as
defined in Section 424(e) of the Code.
"Termination of Consultancy" shall mean, with respect to a Consultant,
that the Consultant is no longer acting as a Consultant to the Company
and its Affiliates. In the event an entity shall cease to be an
Affiliate, there shall be deemed a Termination of Consultancy of any
individual who is a consultant of that entity and is not otherwise a
Consultant of the Company or another Affiliate at the time the entity
ceases to be an Affiliate.
"Termination of Directorship" shall mean, with respect to a
Non-Employee Director, that the Non-Employee Director has ceased to be
a director of the Company.
<PAGE>
"Termination of Employment" shall mean: (i) a termination of service of
a Participant from the Company and its Affiliates; or (ii) when an
entity which is employing a Participant ceases to be an Affiliate,
unless the Participant thereupon becomes employed by the Company or
another Affiliate.
"Transfer" or "Transferred" shall mean anticipate, alienate, attach,
sell, assign, pledge, encumber, charge or otherwise transfer.
ARTICLE III.
ADMINISTRATION
III.1. The Committee. This Plan shall be administered and interpreted
by the Committee. Subject to the other provisions of this Plan, the Committee or
the Board, as applicable, shall have the authority to adopt, alter and repeal
such administrative rules governing this Plan and perform all acts, including
the delegation of its administrative responsibilities, as it shall, from time to
time, deem advisable; to construe and interpret this Plan and any Stock Option
granted hereunder (and any agreements relating thereto). The Committee may
correct any defect, supply any omission or reconcile any inconsistency in this
Plan or in any agreement relating thereto in the manner and to the extent it
shall deem necessary to carry this Plan into effect, but only to the extent any
such action would be permitted under the applicable provisions of both Rule
16b-3 and Section 162(m) of the Code. The Committee may adopt rules for persons
who are residing in, or subject to, the taxes of, countries other than the
United States to comply with applicable tax and securities laws. To the extent
applicable, this Plan is intended to comply with the applicable requirements of
Rule 16b-3 and Section 162(m) of the Code and shall be limited, construed and
interpreted in a manner so as to comply therewith. The Board, its directors, the
Committee, its members and any person to whom authority is delegated pursuant to
this Section 3.1 shall not be liable for any action or determination made in
good faith with respect to this Plan.
III.2. Awards. The Committee shall have full authority to grant Stock
Options to Eligible Employees and Consultants and to otherwise administer this
Plan. In particular, the Committee or the Board, as applicable, shall have the
authority:
(a) to select Eligible Employees and Consultants to
whom Stock Options may from time to time be granted hereunder;
(b) to determine the number of shares of Common Stock to be
covered by each Stock Option granted to an Eligible Employee or
Consultant, and the terms and conditions of the Stock Option
(including, but not limited to, the exercise or purchase price (if
any), any restriction or limitation, any vesting schedule or
acceleration thereof or any forfeiture restrictions or waiver thereof,
regarding any Stock Option, and the shares of Common Stock relating
thereto, based on such factors, if any, as the Committee shall
determine in its sole discretion);
<PAGE>
(c) to modify or extend a Stock Option, subject to Section
8.1 herein; and
(d) to offer to buy out a Stock Option previously granted,
based on such terms and conditions as the Committee or the Board, as
applicable, shall establish and communicate to the Participant at the
time such offer is made.
III.3. Decisions Final. Any decision, interpretation or other action
made or taken in good faith by or at the direction of the Company, the Board or
the Committee (or any of its members) arising out of or in connection with this
Plan shall be within the absolute discretion of the Company, the Board or the
Committee, as the case may be, and shall be final, binding and conclusive on the
Company and its Affiliates and all employees and Participants and their
respective heirs, executors, administrators, successors and assigns.
III.4. Reliance on Counsel. The Company, the Board or the Committee may
consult with legal counsel, who may be counsel for the Company or other counsel,
with respect to its obligations or duties hereunder, or with respect to any
action or proceeding or any question of law, and shall not be liable with
respect to any action taken or omitted by it in good faith pursuant to the
advice of such counsel. The Company, the Board or the Committee may also engage
consultants or agents with regard to the plan. Expenses incurred by the
Committee or Board in the engagement of any such counsel, consultant or agent
shall be paid by the Company.
III.5. Procedures. If the Committee is appointed, the Board shall
designate one of the members of the Committee as chairman and the Committee
shall hold meetings, subject to the By-Laws of the Company, at such times and
places as the Committee shall deem advisable. A majority of the Committee
members shall constitute a quorum. All determinations of the Committee shall be
made by a majority of its members. Any decision or determination reduced to
writing and signed by all the Committee members in accordance with the By-Laws
of the Company shall be fully as effective as if it had been made by a vote at a
meeting duly called and held.
ARTICLE IV.
SHARE AND OTHER LIMITATIONS
IV.1. Shares.
<PAGE>
(a) The aggregate number of shares of Common Stock which may
be issued and with respect to which Stock Options may be granted under
this Plan shall not exceed the greater of (i) 3,500,000 shares or (ii)
15% of the aggregate number of shares of Common Stock issued and
outstanding immediately after the grant of any Stock Option (subject to
any increase or decrease pursuant to Section 4.2). Notwithstanding the
foregoing, in no event may the aggregate number of shares of Common
Stock which may be issued upon the exercise of Incentive Stock Options
exceed 3,500,000 shares (subject to any increase or decrease pursuant
to Section 4.2). Shares of Common Stock issued upon the exercise of
Stock Options may be either authorized and unissued Common Stock or
Common Stock held in or acquired for the treasury of the Company. If
any Stock Option expires, terminates or is canceled for any reason
without having been exercised in full, the number of shares of Common
Stock underlying any unexercised Stock Option shall again be available
under this Plan. In addition, in determining the number of shares of
Common Stock available under the Plan other than for the granting of
Incentive Stock Options, if Common Stock has been exchanged by a
Participant as full or partial payment to the Company in connection
with the exercise of a Stock Option, the number of shares of Common
Stock exchanged as payment in connection with the exercise shall again
be available under this Plan.
(b) The maximum number of shares of Common Stock with respect
to which Stock Options may be granted under this Plan during any
calendar year of the Company to each Eligible Employee shall be 750,000
shares (subject to any increase or decrease pursuant to this Section
4.2). To the extent that shares of Common Stock for which Stock Options
are permitted to be granted to a Participant pursuant to Section 4.1(b)
during a calendar year of the Company are not covered by a grant of a
Stock Option in the Company's calendar year, such shares of Common
Stock shall be available for grant or issuance to the Participant in
any subsequent calendar year during the term of this Plan.
IV.2. Changes.
(a) The existence of this Plan and the shares of Common Stock
and Stock Options granted hereunder shall not affect in any way the
right or power of the Board or the stockholders of the Company to make
or authorize any adjustment, recapitalization, reorganization or other
change in the Company's capital structure or its business, any merger
or consolidation of the Company or Affiliates, any issue of bonds,
debentures, preferred or prior preference stock ahead of or affecting
Common Stock, the authorization or issuance of additional shares of
Common Stock, the dissolution or liquidation of the Company or
Affiliates, any sale or transfer of all or part of its assets or
business or any other corporate act or proceeding.
<PAGE>
(b) In the event of any change in the capital structure or
business of the Company by reason of any stock dividend, stock split or
reverse stock split, recapitalization, reorganization, merger,
consolidation, split-up, combination or exchange of shares,
distribution with respect to its outstanding Common Stock or capital
stock other than Common Stock, reclassification of its capital stock,
any sale or transfer of all or part of the Company's assets or
business, or any similar change affecting the Company's capital
structure or business, and the Committee or the Board, as applicable,
determines an adjustment is appropriate under this Plan, then the
aggregate number and kind of shares which thereafter may be issued
under this Plan, the number and kind of shares or other property
(including cash) to be issued upon exercise of an outstanding Stock
Option granted under this Plan and the purchase or exercise price
thereof shall be appropriately adjusted consistent with such change in
such manner as the Committee or the Board, as applicable, may deem
equitable to prevent substantial dilution or enlargement of the rights
granted to, or available for, Participants under this Plan or as
otherwise necessary to reflect the change, and any such adjustment
determined by the Committee or the Board, as applicable, in good faith
shall be binding and conclusive on the Company and all Participants and
employees and their respective heirs, executors, administrators,
successors and assigns.
(c) Fractional shares of Common Stock resulting from any
adjustment in Stock Options pursuant to Section 4.2(a) or (b) shall be
aggregated until, and eliminated at, the time of exercise by
rounding-down for fractions less than one-half and rounding-up for
fractions equal to or greater than one-half. No cash settlements shall
be made with respect to fractional shares eliminated by rounding.
Notice of any adjustment shall be given by the Committee or the Board,
as applicable, to each Participant whose Stock Option has been adjusted
and such adjustment (whether or not such notice is given) shall be
effective and binding for all purposes of this Plan.
(d) In the event of (i) a merger or consolidation in which
the Company is not the surviving entity or in which the Company is the
surviving entity but the holders of the Common Stock outstanding
immediately prior to the consummation of the transaction are not the
holders of a majority of the Common Stock outstanding immediately
subsequent to the transaction, or (ii) in the event of any transaction
that results in the acquisition of all or substantially all of the
Company's outstanding Common Stock by a single person or entity or by a
group of persons and/or entities acting in concert, or in the event of
the sale or transfer of all or substantially all of the Company's
assets (all of the foregoing being referred to as "Extraordinary
Transactions"), then in the event of an Extraordinary Transaction of
the type described in clause (i) above, the Committee may, in its sole
discretion, and in the event of an Extraordinary Transaction of the
type described in clause (ii) above, the Committee shall, terminate all
outstanding Stock Options, effective as of the date of the
Extraordinary Transaction by delivering notice of termination to each
such Participant at least 30 days prior to the date of consummation of
the Extraordinary Transaction; provided, that during the period from
the date on which such notice of termination is delivered to the
consummation of the Extraordinary Transaction, each such Participant
shall have the right to exercise in full all of his or her Stock
Options that are then outstanding (whether vested or not vested) but
contingent on the occurrence of the Extraordinary Transaction;
provided, further, that, if the Extraordinary Transaction does not take
place within a specified period after giving such notice for any reason
whatsoever, the notice and exercise shall be null and void. If an
Extraordinary Transaction occurs, to the extent the Committee does not
terminate the outstanding Stock Options pursuant to this Section
4.2(d), then the provisions of Section 4.2(b) shall apply.
<PAGE>
ARTICLE V.
STOCK OPTIONS
V.1. Stock Options. Each Stock Option granted hereunder shall
be one of two types: (i) an Incentive Stock Option intended to satisfy the
requirements of Section 422 of the Code, or (ii) a Non-Qualified Stock Option.
V.2. Grants. The Committee shall have the authority to grant to any
Eligible Employee one or more Incentive Stock Options, Non-Qualified Stock
Options, or both types of Stock Options. To the extent that any Stock Option
does not qualify as an Incentive Stock Option (whether because of its provisions
or the time or manner of its exercise or otherwise), such Stock Option or the
portion thereof which does not so qualify, shall constitute a separate
Non-Qualified Stock Option. The Committee shall have the authority to grant to
any Consultant one or more Non-Qualified Stock Options. Notwithstanding any
other provision of this Plan to the contrary or any provision in an agreement
evidencing the grant of an Stock Option to the contrary, any Stock Option
granted to an Employee of an Affiliate (other than a Subsidiary), a Non-Employee
Director or a Consultant shall be a Non-Qualified Stock Option.
V.3. Terms of Stock Options. Stock Options shall be subject to the
following terms and conditions, and shall be in such form and contain such
additional terms and conditions, not inconsistent with the terms of this Plan,
as the Committee shall deem desirable:
(a) The exercise price per share of Common Stock of any Stock
Option shall be determined by the Committee or the Board, as
applicable, at the time of grant but shall not be less than 100% of the
Fair Market Value of a share of Common Stock at the time of grant;
provided, however, that if an Incentive Stock Option is granted to a
Ten Percent Stockholder, the exercise price per share shall be no less
than 110% of the Fair Market Value of the Common Stock.
(b) The term of each Stock Option shall be fixed by the
Committee, but no Stock Option shall be exercisable more than 10 years
after the date the Stock Option is granted; provided, however, the term
of an Incentive Stock Option granted to a Ten Percent Stockholder may
not exceed five years.
(c) Stock Options shall be exercisable at such time or times
and subject to such terms and conditions as shall be determined by the
Committee at the time of grant. If the Committee provides, in its
discretion, that any Stock Option is exercisable subject to certain
limitations (including, without limitation, that it is exercisable only
in installments or within certain time periods), the Committee may
waive such limitations on the exercisability at any time at or after
the time of grant in whole or in part, based on such factors, if any,
as the Committee shall determine in its sole discretion.
<PAGE>
(d) Subject to whatever installment exercise and waiting
period provisions apply under Section 6.3(c), Stock Options may be
exercised in whole or in part at any time during the Stock Option term,
by giving written notice of exercise to the Company specifying the
number of shares to be purchased. Common Stock purchased pursuant to
the exercise of a Stock Option shall be paid for at the time of
exercise as follows: (i) in cash or by check, bank draft or money order
payable to the order of Company; (ii) if the Common Stock is traded on
a national securities exchange, the Nasdaq Stock Market, Inc. or quoted
on a national quotation system sponsored by the National Association of
Securities Dealers, through the delivery of irrevocable instructions to
a broker to deliver promptly to the Company an amount equal to the
purchase price; or (iii) on such other terms and conditions as may be
acceptable to the Committee (which may include payment in full or part
in the form of Common Stock owned by the Participant (and for which the
Participant has good title free and clear of any liens and
encumbrances) based on the Fair Market Value of the Common Stock on the
payment date as determined by the Committee or the surrender of vested
Stock Options owned by the Participant). No shares of Common Stock
shall be issued until payment therefor, as provided herein, has been
made or provided for.
(e) To the extent that the aggregate Fair Market Value
(determined as of the time of grant) of the Common Stock with respect
to which Incentive Stock Options are exercisable for the first time by
an Eligible Employee during any calendar year under this Plan and/or
any other stock option plan of the Company, any Subsidiary or any
parent corporation (within the meaning of Section 424(e) of the Code)
exceeds $100,000, such Stock Options shall be treated as Non-Qualified
Stock Options. In addition, if an Eligible Employee's employment by the
Company, a Subsidiary or a parent corporation (within the meaning of
Section 424(e) of the Code) terminates more than three months prior to
the date of exercise (or such other period as required by applicable
law), such Stock Option shall be treated as a Non-Qualified Stock
Option. Should the foregoing provision not be necessary in order for
the Stock Options to qualify as Incentive Stock Options, or should any
additional provisions be required, the Committee may amend this Plan
accordingly, without the necessity of obtaining the approval of the
stockholders of the Company.
(f) Subject to the terms and conditions of this Plan, a Stock
Option shall be evidenced by such form of agreement or grant as is
approved by the Committee and the Committee may modify, extend or renew
outstanding Stock Options granted under this Plan (provided that the
rights of a Participant are not reduced without his consent), or accept
the surrender of outstanding Stock Options (up to the extent not
theretofore exercised) and authorize the granting of new Stock Options
in substitution therefor (to the extent not theretofore exercised).
<PAGE>
(g) Stock Options may contain such other provisions, which
shall not be inconsistent with any of the foregoing terms of this Plan,
as the Committee shall deem appropriate including, without limitation,
permitting "reloads" such that the same number of Stock Options are
granted as the number of Stock Options exercised, shares used to pay
for the exercise price of Stock Options or shares used to pay
withholding taxes ("Reloads"). With respect to Reloads, the exercise
price of the new Stock Option shall be the Fair Market Value on the
date of the "reload" and the term of the Stock Option shall be the same
as the remaining term of the Stock Options that are exercised, if
applicable, or such other exercise price and term as determined by the
Committee.
ARTICLE VI.
NON-EMPLOYEE DIRECTOR STOCK OPTIONS
VI.1. Stock Options. The terms of this Article VI shall apply only
to Stock Options granted to Non-Employee Directors.
VI.2. Grants. On the date that a Non-Employee Director is first elected
a director of the Company, and on each anniversary of such date while shares of
Common Stock remain available for the grant of Stock Options hereunder, each
Non-Employee Director shall be automatically granted Stock Options to purchase
20,000 shares of Common Stock.
VI.3. Non-Qualified Stock Options. Stock Options granted under
this Article VI shall be Non-Qualified Stock Options.
VI.4. Terms of Options. Stock Options granted under this Article VI
shall be subject to the following terms and conditions and shall be in such form
and contain such additional terms and conditions, not inconsistent with terms of
this Plan, as the Board shall deem desirable:
(a) The exercise price per share of Common Stock subject to a
Stock Option granted pursuant to Section 6.2 shall be equal to 100% of
the Fair Market Value of Common Stock at the time of grant.
(b) Stock Options granted under this Article VI shall be
exercisable immediately upon grant.
(c) A Non-Employee Director electing to exercise one or more
Stock Options shall give written notice of exercise to the Company
specifying the number of shares to be purchased. Common Stock purchased
pursuant to the exercise of a Stock Option shall be paid for as
provided in Section 5.3(d). No shares of Common Stock shall be issued
until payment therefore, as provided herein, has been made or provided
for.
(d) Except as otherwise provided herein, if not previously
exercised each Stock Option shall expire upon the tenth anniversary of
the date of the grant thereof.
(e) Stock Options granted to a Non-Employee Director under
this Article VI shall be subject to Section 4.2.
<PAGE>
VI.5. Termination of Directorship. The following rules apply with
regard to Stock Options granted under this Article VI upon a Termination of
Directorship:
(a) Except as otherwise provided herein, upon a Termination
of Directorship on account of death or Disability, all then outstanding
Stock Options shall remain exercisable by the Participant or, in the
case of death, by the Participant's estate or by the person given
authority to exercise such Stock Options by his or her will or by
operation of law, at any time within a period of one year from the date
of such Termination of Directorship, but in no event beyond the
expiration of the stated term of such Stock Option.
(b) Except as otherwise provided herein, upon a Termination
of Directorship, on account of retirement, resignation, failure to
stand for reelection or failure to be reelected or otherwise other than
as set forth in (c) below, all then outstanding Stock Options shall
remain exercisable by the Participant at any time within a period of
one year from the date of such Termination of Directorship, but in no
event beyond the expiration of the stated term of such Stock Option.
(c) Upon removal, failure to stand for reelection or failure
to be renominated for any reason that would constitute grounds for
removal of a director for cause under Delaware law, or if the Company
obtains or discovers information after Termination of Directorship that
such Participant had engaged in conduct that would have justified
removal for cause during his or her directorship, all outstanding Stock
Options of such Participant shall immediately terminate and shall be
null and void.
ARTICLE VII.
NON-TRANSFERABILITY AND TERMINATION OF
EMPLOYMENT/CONSULTANCY PROVISIONS
VII.1. Except as otherwise provided in this Section 7.1, no Stock
Option shall be Transferred by the Participant otherwise than by will or by the
laws of descent and distribution. All Stock Options shall be exercisable, during
the Participant's lifetime, only by the Participant. Any attempt to Transfer any
Stock Option shall be void, and no such Stock Option shall in any manner be used
for the payment of, subject to, or otherwise encumbered by or hypothecated for
the debts, contracts, liabilities, engagements or torts of any person who shall
be entitled to such Stock Option, nor shall it be subject to attachment or legal
process for or against such person. Notwithstanding the foregoing, the Committee
may determine at the time of grant or thereafter that a Non-Qualified Stock
Option granted pursuant to Article V or Article VI that is otherwise not
transferable pursuant to this Article VII is transferable in whole or part and
in such circumstances, and under such conditions, as specified by the Committee.
<PAGE>
VII.2. Termination of Employment or Termination of Consultancy. The
following rules apply with regard to Stock Options upon the Termination of
Employment or Termination of Consultancy of a Participant, unless otherwise
determined by the Committee at grant or, if no rights of the Participant (or his
estate in the event of death) are reduced, thereafter:
(a) If a Participant's Termination of Employment or
Termination of Consultancy is by reason of his death, any Stock Option
held by such Participant may be exercised, to the extent exercisable at
the Participant's Termination of Employment or Termination of
Consultancy, by the Participant's estate or by the person given
authority to exercise such Stock Options by his or her will or by
operation of law, at any time within a period of one year from the date
of such death, but in no event beyond the expiration of the stated term
of such Stock Option.
(b) If a Participant's Termination of Employment or
Termination of Consultancy is by reason of his Disability or
retirement, any Stock Option held by such Participant may be exercised,
to the extent exercisable at the Participant's Termination of
Employment or Termination of Consultancy, by the Participant, at any
time within a period of one year from the date of such Termination of
Employment or Termination of Consultancy, but in no event beyond the
expiration of the stated term of such Stock Option; provided, however,
that, if the Participant dies within such exercise period, any
unexercised Stock Option held by such Participant shall thereafter be
exercisable by the Participant's estate or by the person given
authority to exercise such Stock Options by his or her will or by
operation of law, to the extent to which it was exercisable at the time
of death, for a period of one year (or such other period as the
Committee may specify at grant or, if no rights of the Participant's
estate are reduced, thereafter) from the date of such death, but in no
event beyond the expiration of the stated term of such Stock Option.
(c) If a Participant's Termination of Employment or
Termination of Consultancy is by the Company without cause, any Stock
Option held by such Participant may be exercised, to the extent
exercisable at termination, by the Participant at any time within a
period of 90 days from the date of such termination, but in no event
beyond the expiration of the stated term of such Stock Option.
(d) If a Participant's Termination of Employment or
Termination of Consultancy is a voluntary termination by the
Participant and occurs prior to, or more than 90 days after, the
occurrence of an event which would be grounds for Termination of
Employment or Termination of Consultancy for cause (without regard to
any notice or cure period requirements), any Stock Option held by such
Participant may be exercised, to the extent exercisable at termination,
by the Participant at any time within a period of 30 days from the date
of such termination, but in no event beyond the expiration of the
stated term of such Stock Option.
(e) If a Participant's Termination of Employment or
Termination of Consultancy is: (i) for cause, or (ii) a voluntary
termination (as provided in subsection (d) above) within 90 days after
an event which would be grounds for a Termination of Employment or
Termination of Consultancy for cause, any Stock Option held by such
Participant shall thereupon terminate and expire as of the date of
termination.
<PAGE>
ARTICLE VIII.
TERMINATION OR AMENDMENT OF PLAN
VIII.1. Termination or Amendment. Notwithstanding any other provision
of this Plan, the Board or the Committee may at any time, and from time to time,
amend, in whole or in part, any or all of the provisions of this Plan (including
any amendment deemed necessary to ensure that the Company may comply with any
regulatory requirement referred to in this Article VIII), or suspend or
terminate it entirely, retroactively or otherwise; provided, however, that,
unless otherwise required by law or specifically provided herein, the rights of
a Participant with respect to Stock Options granted prior to such amendment,
suspension or termination, may not be impaired without the consent of such
Participant; and provided further, without the approval of the stockholders of
the Company in accordance with the laws of the State of Delaware, to the extent
required by the applicable provisions of Rule 16b-3 or Section 162(m) of the
Code, or with respect to Incentive Stock Options, Section 422 of the Code, no
amendment may be made which would: (a) increase the aggregate number of shares
of Common Stock that may be issued under this Plan; (b) increase the maximum
individual Participant limitations for a fiscal year under Section 4.1(b); (c)
change the classification of employees and Consultants eligible to receive
Awards under this Plan; (d) decrease the minimum exercise price of any Stock
Option; (e) extend the maximum option term under Section 5.3(b); or (f) reprice
any outstanding Stock Option.
The Committee may amend the terms of any Award theretofore granted,
prospectively or retroactively, but, subject to Article IV or as otherwise
specifically provided herein, no such amendment or other action by the Committee
shall impair the rights of any Participant without the Participant's consent.
ARTICLE IX.
UNFUNDED PLAN
IX.1. Unfunded Status of Plan. This Plan is intended to constitute an
"unfunded" plan for incentive and deferred compensation. With respect to any
payments as to which a Participant has a fixed and vested interest but which are
not yet made to a Participant by the Company, nothing contained herein shall
give any such Participant any rights that are greater than those of a general
creditor of the Company.
ARTICLE X.
GENERAL PROVISIONS
<PAGE>
X.1. Legend. All certificates for shares of Common Stock delivered
under this Plan shall be subject to such stock transfer orders and other
restrictions as the Committee or the Board, as applicable, may deem advisable
under the rules, regulations and other requirements of the Securities and
Exchange Commission, any stock exchange upon which the Common Stock is then
listed or any national securities association system upon whose system the
Common Stock is then quoted, any applicable Federal or state securities law, and
any applicable corporate law, and the Committee or the Board, as applicable, may
cause a legend or legends to be put on any such certificates to make appropriate
reference to such restrictions.
X.2. Other Plans. Nothing contained in this Plan shall prevent the
Board from adopting other or additional compensation arrangements, subject to
stockholder approval if such approval is required; and such arrangements may be
either generally applicable or applicable only in specific cases.
X.3. No Right to Employment/Consultancy/Directorship. Neither this Plan
nor the grant of any Stock Options hereunder shall give any Participant or other
employee or Consultant any right with respect to continuance of employment or
consultancy by the Company or any Affiliate, nor shall they be a limitation in
any way on the right of the Company or any Affiliate by which an employee is
employed or consultant retained to terminate his employment or consultancy, as
applicable, at any time. Neither this Plan nor the grant of any Stock Options or
shares of Common Stock hereunder shall impose any obligations on the Company to
retain any Participant as a director nor shall it impose on the part of any
Participant any obligation to remain as a director of the Company.
X.4. Withholding of Taxes. The Company shall deduct from any payment to
be made to a Participant, or shall otherwise require, prior to the issuance or
delivery of any shares of Common Stock or the payment of any cash hereunder,
payment by the Participant of any Federal, state or local taxes required by law
to be withheld; and such withholding is hereby approved by the Committee.
X.5. Governing Law. This Plan shall be governed and construed in
accordance with the laws of the State of Delaware (regardless of the law that
might otherwise govern under applicable Delaware principles of conflict
of laws).
X.6. Construction. Wherever any words are used in this Plan in the
masculine gender they shall be construed as though they were also used in the
feminine gender in all cases where they would so apply, and wherever any words
are used herein in the singular form they shall be construed as though they were
also used in the plural form in all cases where they would so apply. To the
extent applicable, this Plan shall be limited, construed and interpreted in a
manner so as to comply with Section 162(m) of the Code and the applicable
requirements of Rule 16b-3; provided, however, that noncompliance with Section
162(m) of the Code and Rule 16b-3 shall have no impact on the effectiveness of a
Stock Option under this Plan.
X.7. Other Benefits. No Stock Option under this Plan shall be deemed
compensation for purposes of computing benefits under any retirement plan of the
Company or its subsidiaries or affiliates nor affect any benefits under any
other benefit plan now or subsequently in effect under which the availability or
amount of benefits is related to the level of compensation.
<PAGE>
X.8. Costs. The Company shall bear all expenses included in
administering this Plan, including expenses of issuing shares of Common Stock
pursuant to this Plan or any Stock Options granted hereunder.
X.9. No Right to Same Benefits. The provisions of Stock Options need
not be the same with respect to each Participant, and such Stock Options to
individual Participants need not be the same in subsequent years.
X.10. Death/Disability. The Committee or the Board, as applicable, may
in its discretion require the transferee of a Participant's Stock Option to
supply the Company with written notice of the Participant's death or Disability
and to supply the Company with a copy of the will (in the case of the
Participant's death) or such other evidence as the Committee or the Board, as
applicable, deems necessary to establish the validity of the Transfer of a Stock
Option. The Committee or the Board, as applicable, may also require that the
transferee agree in writing to be bound by all of the terms and conditions of
this Plan.
X.11. Severability of Provisions. If any provision of this Plan shall
be held invalid or unenforceable, such invalidity or unenforceability shall not
affect any other provisions hereof, and this Plan shall be construed and
enforced as if such provisions had not been included.
X.12. Headings and Captions. The headings and captions herein are
provided for reference and convenience only, shall not be considered part
of this Plan, and shall not be employed in the construction of this Plan.
ARTICLE XI.
EFFECTIVE DATE OF PLAN
The 1996 Stock Option Plan became effective as of January 1, 1996. The
Plan, as amended and restated, shall become effective as of May 14, 1998 (the
"Effective Date"), subject to and conditioned upon the approval of this Plan by
the stockholders of the Company in accordance with the requirements of the laws
of the State of Delaware and any applicable exchange requirements.
ARTICLE XII.
TERM OF PLAN
No Stock Option shall be granted pursuant to this Plan on or after the
tenth anniversary of the Effective Date, but Stock Options granted prior to such
tenth anniversary may extend beyond that date.
<PAGE>
ARTICLE XIII.
NAME OF PLAN
This Plan shall be known as the AMERICAN DISPOSAL SERVICES, INC. AMENDED
AND RESTATED 1996 Stock Option Plan.
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Exhibit 4.15
AMENDMENT dated as of September 30, 1998, to the American Disposal
Services, Inc. Amended and Restated 1996 Stock Option Plan (the "Plan").
I. Section 4.2(d) of the Plan is hereby amended by adding a new
sentence at the end thereof to read as follows:
"Notwithstanding anything in this Section 4.2(d) to the
contrary, in the event of an Extraordinary Transaction in which the
other party to the transaction (or, in the case of a transaction
involving the issuance of securities to the holders of Common Stock,
the issuer of such securities) agrees to assume the Plan, (i) all
outstanding stock options shall vest 30 days prior to the date of
consummation of the Extraordinary Transaction and (ii) all outstanding
stock options shall not terminate upon the consummation of the
Extraordinary Transaction but shall survive such consummation in
accordance with their terms (including the accelerated vesting provided
in clause (i) of this sentence), except that, upon consummation of the
Extraordinary Transaction, an option shall be exercisable only into the
securities (and/or other property or consideration) to which a holder
of the number of shares of Common Stock deliverable upon exercise of
the option immediately prior to consummation of the Extraordinary
Transaction would have been entitled upon such Extraordinary
Transaction (subject to adjustments under this Plan for events
occurring after the consummation of the Extraordinary Transaction in
relation to any securities or other property thereafter deliverable
upon exercise of the option). (Without limiting the foregoing, in the
case of a merger transaction in which each share of Common Stock is
converted into a specified number (the "Exchange Ratio") of shares of
common stock of another Company, then after assumption of the Plan by
such other company, following the merger each option shall be
exercisable only for the number of shares of common stock of such
company equal to the product of the Exchange Ratio and the number of
shares of Common Stock issuable upon exercise of the option immediately
prior to consummation of the merger and the exercise price per share
thereafter shall be the exercise price per share in effect immediately
prior to the consummation of the merger divided by the Exchange Ratio,
in each case subject to appropriate adjustment for changes in such
stock following the consummation of the merger as contemplated by the
provisions of this Plan.)
Exhibit 5.1
October 15, 1998
Allied Waste Industries, Inc.
15880 N. Greenway-Hayden Loop, Suite 100
Scottsdale, Arizona 85260
RE: Post-Effective Amendment No. 1 on
Form S-8 to Form S-4 (the "Registration Statement")
Ladies and Gentlemen:
I am Vice President-Legal and Secretary for Allied Waste Industries, Inc., a
Delaware corporation (the "Company"), and have been involved with the
registration under the Securities Act of 1933, as amended (the "Act"), of an
aggregate of 3,156,877 shares of common stock, $.01 par value, of the Company
(the "Common Stock") being offered to certain employees of the Company and its
subsidiary, American Disposal Services, Inc., under the employee stock option
plan described in the Registration Statement.
In connection with the offering of the Common Stock, I have examined the
Restated Certificate of Incorporation, the By-laws and other corporate records
of the Company, and such other documents I have deemed relevant to this opinion.
Based upon and relying solely upon the foregoing, it is my opinion that when the
3,156,877 shares of Common Stock, or any portion thereof, are issued as
described in the Registration Statement, such shares will be duly authorized,
validly issued, fully paid and nonassessable.
This opinion may be filed as an exhibit to the Registration Statement. Consent
is also given to the reference to me under the Caption "Interest of Named
Experts and Counsel" in the Registration Statement as having passed upon the
validity of the issuance of the Common Stock. In giving this consent, I do not
hereby admit that I come within the category of persons whose consent is
required under Section 7 of the Act or rules and regulations of the Securities
and Exchange Commission promulgated thereunder.
Respectfully submitted,
/s/ Steven M. Helm
- ------------------------------------
BY: Steven M. Helm
Vice President-Legal and Secretary
Exhibit 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation
by reference in this Post Effective Amendment No. 1 on Form S-8 to Allied Waste
Industries, Inc. Registration Statement on Form S-4 (File No. 333-62473) of our
report dated June 30, 1998 included in Current Report on Form 8-K/A-1 filed
August 28, 1998.
Arthur Andersen LLP
Phoenix, Arizona,
October 15, 1998.
Exhibit 23.2
Consent of Independent Auditors
We consent to the incorporation by reference in Post Effective Amendment
No. 1 on Form S-8 to Form S-4 (File No. 333-62473-01) of Allied Waste
Industries, Inc. relating to the sale of up to 3,156,877 shares of its common
stock of our report dated February 24, 1998 with respect to the consolidated
financial statements of American Disposal Services, Inc. included in the Current
Report on Form 8-K/A dated August 28, 1998 filed by Allied Waste Industries,
Inc. with the Securities and Exchange Commission.
Ernst & Young LLP
October 14, 1998
Chicago, Illinois
Exhibit 23.3
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this post-effective Amendment No. 1 on Form S-8 to Form S-4 of our
reports dated March 21, 1997 on the Rabanco Companies and Regional Disposal
Company 1996 financial statements included in Allied Waste Industries, Inc.'s
Current Report on Form 8-K filed August 27, 1998. It should be noted that we
have not audited any financial statements of Rabanco Companies and Regional
Disposal Company subsequent to December 31, 1996 or performed any audit
procedures subsequent to the date of our report.
SWEENEY CONRAD, P.S.
Bellevue, Washington
October 15, 1998
