Exhibit 1.1
5,500,000 Shares
American Disposal Services, Inc.
Common Stock
UNDERWRITING AGREEMENT
October __, 1997
Xxxxxxxxxxx & Co., Inc.
Xxxxxxxxx, Lufkin & Xxxxxxxx Securities Corporation
Credit Suisse First Boston Corporation
c/o Oppenheimer & Co., Inc.
Xxxxxxxxxxx Xxxxx
Xxxxx Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
On behalf of the Several
Underwriters named in
Schedule I attached hereto.
Gentlemen:
American Disposal Services, Inc., a Delaware corporation (the
"Company"), and the stockholders named on Schedule II to this Agreement (the
"Selling Stockholders") propose to sell to you and the other underwriters named
in Schedule I to this Agreement (the "Underwriters"), for whom you are acting as
Representatives, an aggregate of 5,500,000 shares (the "Firm Shares") of the
Company's common stock, $0.01 par value (the "Common Stock"), of which 3,500,000
shares are to be issued and sold by the Company and 2,000,000 shares are to be
sold by the Selling Stockholders. In addition, the Company proposes to grant to
the Underwriters an option to purchase up to an additional 825,000 shares (the
"Option Shares") of Common Stock from it for the purpose
of covering over-allotments in connection with the sale of the Firm Shares.
The Firm Shares and the Option Shares are together called the "Shares."
1. Sale and Purchase of the Shares. On the basis of the
representations, warranties and agreements contained in, and subject to the
terms and conditions of, this Agreement:
(a) The Company and the Selling Stockholders agree, severally and not
jointly, to sell to each of the Underwriters, and each of the Underwriters
agrees, severally and not jointly, to purchase from the Company and the
Selling Stockholders, at $_____ per share (the "Initial Price"), the
number of Firm Shares set forth opposite the name of such Underwriter in
Schedule I to this Agreement.
(b) The Company grants to the several Underwriters an option to
purchase, severally and not jointly, all or any part of the Option Shares
at the Initial Price. The number of Option Shares to be purchased by each
Underwriter shall be the same percentage (adjusted by the Representatives
to eliminate fractions) of the total number of Option Shares to be
purchased by the Underwriters as such Underwriter is purchasing of the Firm
Shares. Such option may be exercised only to cover over-allotments in the
sales of the Firm Shares by the Underwriters and may be exercised in whole
or in part at any time on or before 12:00 noon, New York City time, on the
business day before the Firm Shares Closing Date (as defined below), and
only once thereafter within 30 days after the date of this Agreement, in
each case upon written or telegraphic notice, or verbal or telephonic
notice confirmed by written or telegraphic notice, by the Representatives
to the Company no later than 12:00 noon, New York City time, on the
business day before the Firm Shares Closing Date or at least two business
days before the Option Shares Closing Date (as defined below), as the case
may be, setting forth the number of Option Shares to be purchased and the
time and date (if other than the Firm Shares Closing Date) of such
purchase.
2. Delivery and Payment. Delivery by the Company and the Selling
Stockholders of the Firm Shares to the Representatives for the respective
accounts of the Underwriters, and payment of the purchase price by certified or
official bank check or checks payable in New York Clearing House (same day)
funds to the Company and the Selling Stockholders, shall take place at the
offices of Xxxxxxxxxxx & Co., Inc., at Xxxxxxxxxxx Xxxxx, Xxxxx Xxxxxxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, at 10:00 a.m., New York City time, on the
third business day following the date of this Agreement, provided, however, that
if the Shares sold hereunder are priced after 4:30 p.m., New York time, on any
business day, payment and delivery in respect of the Firm Shares shall take
place on the fourth business day following the date of this Agreement; if it is
determined that settlement within the foregoing time frame is not feasible, then
payment and delivery in respect of the Firm Shares shall occur at such time on
such other date, not later than 10 business days after the date of this
Agreement, as shall be agreed upon by the Company and the Representatives (such
time and date of delivery and payment are called the "Firm Shares Closing
Date").
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In the event the option with respect to the Option Shares is
exercised, delivery by the Company of the Option Shares to the Representatives
for the respective accounts of the Underwriters and payment of the purchase
price by certified or official bank check or checks payable in New York Clearing
House (same day) funds to the Company shall take place at the offices of
Xxxxxxxxxxx & Co., Inc. specified above at the time and on the date (which may
be the same date as, but in no event shall be earlier than, the Firm Shares
Closing Date) specified in the notice referred to in Section 1(b) (such time and
date of delivery and payment are called the "Option Shares Closing Date"). The
Firm Shares Closing Date and the Option Shares Closing Date are called,
individually, a "Closing Date" and, together, the "Closing Dates."
Certificates evidencing the Shares shall be registered in such names
and shall be in such denominations as the Representatives shall request at least
two full business days before the Firm Shares Closing Date or, in the case of
Option Shares, on the day of notice of exercise of the option as described in
Section l(b) and shall be made available to the Representatives for checking and
packaging, at such place as is designated by the Representatives, at least one
full business day before the Firm Shares Closing Date (or the Option Shares
Closing Date in the case of the Option Shares).
3. Registration Statement and Prospectus; Public Offering. The
Company has prepared in conformity with the requirements of the Securities Act
of 1933, as amended (the "Securities Act"), and the published rules and
regulations thereunder (the "Rules") adopted by the Securities and Exchange
Commission (the "Commission") a registration statement on Form S-3 (No.
333-36389), including a preliminary prospectus relating to the Shares, and has
filed with the Commission the registration statement and such amendments thereto
as may have been required to the date of this Agreement. Copies of such
Registration Statement (including all amendments thereto) and of the related
preliminary prospectus have heretofore been delivered by the Company to you.
The Company may also file a related registration statement with the Commission
pursuant to Rule 462(b) under the Securities Act for the purpose of registering
additional Shares, which registration shall be effective upon filing with the
Commission. The term "Registration Statement" means the Registration Statement
as amended at the time and on the date it becomes effective (the "Effective
Date"), including all exhibits and information, if any, deemed to be part of the
Registration Statement pursuant to Rule 424(a), Rule 430A and Rule 462(b) of the
Rules. The term "preliminary prospectus" means any preliminary prospectus (as
described in Rule 430 of the Rules) included at any time as a part of the
Registration Statement. The term "Prospectus" means the prospectus in the form
first used to confirm sales of the Shares (whether such prospectus was included
in the Registration Statement at the time of effectiveness or was subsequently
filed with the Commission pursuant to Rule 424(b) of the Rules) or the
preliminary prospectus forming part of the Registration Statement at the time it
was declared effective together with the term sheet permitted under Rule 434(b)
and filed with the Commission pursuant to Rule 424(b), as applicable.
The Company and the Selling Stockholders understand that the
Underwriters propose to make a public offering of the Shares, as set
forth in and pursuant to the Prospectus, as soon after the Effective
Date and the date of this Agreement as the Representatives deem
advisable. The
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Company and the Selling Stockholders hereby confirm that the Underwriters and
dealers have been authorized to distribute or cause to be distributed each
preliminary prospectus and are authorized to distribute the Prospectus (as
from time to time amended or supplemented if the Company furnishes amendments
or supplements thereto to the Underwriters).
4. Representations and Warranties of the Company and the
Selling Stockholders.
(A) The Company hereby represents and warrants to each
Underwriter as follows:
(a) On the Effective Date the Registration Statement
complied, and on the date of the Prospectus, on the date any
post-effective amendment to the Registration Statement or any
related registration statement filed with the Commission pursuant
to Rule 462(b) of the Rules shall become effective, on the date
any supplement or amendment to the Prospectus is filed with the
Commission and on each Closing Date, the Registration Statement
and the Prospectus (and any amendment thereof or supplement
thereto) will comply in all material respects with the applicable
provisions of the Securities Act and the Rules and the Securities
Exchange Act of 1934, as amended (the "Exchange Act") and the
rules and regulations of the Commission thereunder; the
Registration Statement did not, as of the Effective Date, contain
any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary in order
to make the statements therein not misleading; and on the other
dates referred to above neither the Registration Statement nor
the Prospectus, nor any amendment thereof or supplement thereto,
will contain any untrue statement of a material fact or will omit
to state any material fact required to be stated therein or
necessary in order to make the statements therein not misleading.
When any related preliminary prospectus was first filed with the
Commission (whether filed as part of the Registration Statement
or any amendment thereto or pursuant to Rule 424(a) of the Rules)
and when any amendment thereof or supplement thereto was first
filed with the Commission, such preliminary prospectus as amended
or supplemented complied in all material respects with the
applicable provisions of the Securities Act and the Rules and did
not contain any untrue statement of a material fact or omit to
state any material fact required to be stated therein or
necessary in order to make the statements therein not misleading.
The Company makes no representation or warranty as to any
information contained in or omitted from (i) the paragraphs with
respect to stabilization or affiliate transactions on the inside
front cover page of the Prospectus and (ii) the statements
contained under the caption "Underwriting" in the Prospectus.
The Company and the Selling Stockholders acknowledge that such
statements constitute the only information furnished in writing
by the Representatives on behalf of the several Underwriters
specifically for inclusion in the Registration Statement, any
preliminary prospectus or the Prospectus.
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(b) All contracts and other documents required to be filed
as exhibits to the Registration Statement have been filed with
the Commission as exhibits to the Registration Statement.
(c) The financial statements of the Company (including all
notes thereto) included in the Registration Statement and
Prospectus fairly present the financial position, the results of
operations, stockholders' equity and cash flows and the other
information purported to be shown therein of the Company at the
respective dates and for the respective periods to which they
apply; and such financial statements have been prepared in
conformity with generally accepted accounting principles,
consistently applied throughout the periods involved, and all
adjustments necessary for a fair presentation of the results for
such periods have been made. There are no schedules required to
be included in the Registration Statement in order to present
fairly in all material respects the information required to be
stated therein; and the historical financial information and
statistical data set forth in the Prospectus under the captions
"Summary Consolidated Financial Information," "Capitalization"
and "Selected Consolidated Financial Data" are fairly stated in
all material respects in relation to the financial statements
from which they have been derived. The pro forma financial data
included in the Registration Statement and the Prospectus present
fairly the information shown therein, comply in all material
respects with the requirements of the Securities Act and the
Rules and Regulations with respect to pro forma financial
statements, have been properly compiled on the pro forma basis
described therein and the assumptions used in the preparation
thereof are reasonable and the adjustments used therein are
appropriate to give effect to the transactions or circumstances
referred to therein.
(d) Ernst & Young LLP, whose reports are filed with the
Commission as a part of the Registration Statement, is and,
during the periods covered by its reports, was an independent
public accountant as required by the Securities Act and the
Rules.
(e) The Company has been duly organized and is validly
existing as a corporation in good standing under the laws of the
State of Delaware. Each subsidiary of the Company has been duly
incorporated or formed and is an existing corporation in good
standing under the laws of the jurisdiction of its incorporation
or organization. The Company has no subsidiary or subsidiaries
other than as set forth on Schedule III and Schedule IV hereto
(collectively, the "Subsidiaries") and does not control, directly
or indirectly, any other corporation, partnership, joint venture,
association or other business organization. Each of the Company
and its subsidiaries is duly qualified and in good standing as a
foreign corporation in each jurisdiction in which the character
or location of its assets or properties (owned, leased or
licensed) or the nature of its business makes such qualification
necessary, except for such jurisdictions where the failure to so
qualify individually or in the aggregate would not have a
material adverse effect on the assets or properties, business,
results of operations or financial condition of the Company and
its subsidiaries, taken as a whole, and the Company has not
received any claim or notice
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from any official authority in any
jurisdiction that it is required to be qualified or licensed to
do business in any such jurisdiction in which it is not so
qualified or licensed. Except as disclosed in the Registration
Statement and the Prospectus, the Company and its subsidiaries do
not own, lease or license any asset or property or conduct any
business outside the United States of America. Each of the
Company and its subsidiaries has all requisite corporate power
and authority, and all necessary authorizations, approvals,
consents, orders, licenses, certificates and permits of and from
all governmental or regulatory bodies or any other person or
entity, to own, lease and license its assets and properties and
conduct its businesses as now being conducted and as described in
the Registration Statement and the Prospectus, except for such
authorizations, approvals, consents, orders, licenses,
certificates and permits which, if not obtained, would not have a
material adverse effect on the assets or properties, business,
results of operations or financial condition of the Company and
its subsidiaries, taken as a whole; no such authorization,
approval, consent, order, license, certificate or permit contains
a materially burdensome restriction other than as disclosed in
the Registration Statement and the Prospectus; and the Company
has all such corporate power and authority, and such
authorizations, approvals, consents, orders, licenses,
certificates and permits to enter into, deliver and perform this
Agreement and to issue and sell the Shares (except as may be
required under the Securities Act, the Exchange Act and state and
foreign Blue Sky laws).
(f) Except as disclosed in the Registration Statement and
the Prospectus, the Company owns or possesses adequate and
enforceable rights to use all (to the extent any of them exist)
patents, patent applications, trademarks, trademark applications,
service marks, copyrights, copyright applications, licenses and
other similar rights (collectively, the "Intangibles") necessary
for the conduct of its business as now being conducted and as
described in the Registration Statement and the Prospectus. The
Company has not infringed, is not infringing, and has not
received any notice of infringement of, any Intangible of any
other person and the Company does not know of any basis therefor
except for such infringements which individually or in the
aggregate would not have a material adverse effect on the assets
or properties, business, results of operations or financial
condition of the Company and its subsidiaries, taken as a whole.
The Company has not received any notice of infringement of any of
its Intangibles and the Company does not know of any basis
therefor.
(g) Each of the Company and its subsidiaries has good and
marketable title in fee simple to each of the items of personal
property which are reflected in the financial statements referred
to in Section 4(A)(c) or are referred to in the Registration
Statement and the Prospectus as being owned by it and valid and
enforceable leasehold interests in each of the items of real and
personal property which are referred to in the Registration
Statement and the Prospectus as being leased by it, in each case
free and clear of all liens, encumbrances, claims, security
interests and defects, other than those described in the
Registration Statement and the Prospectus and other than those
that could not materially
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affect the value thereof or materially
interfere with the use made or presently contemplated to be made
thereof by them.
(h) Except as disclosed in the Registration Statement and
the Prospectus, there is no litigation or governmental or other
proceeding or investigation before any court or before or by any
public body or board pending or, to the best of the Company's
knowledge, threatened (and the Company does not know of any basis
therefor) against, or involving the assets, properties or
businesses of, the Company or any of its subsidiaries which, if
determined adversely to the Company or any of its subsidiaries,
would materially adversely affect the value or the operation of
any such assets or properties or the business, results of
operations or financial condition of the Company and its
subsidiaries, taken as a whole, or would materially and adversely
affect the ability of the Company to perform its obligations
under this Agreement.
(i) Subsequent to the respective dates as of which
information is given in the Registration Statement and the
Prospectus, except as described therein, there has not been any
material adverse change in the assets or properties, business,
results of operations or financial condition of the Company and
its subsidiaries, taken as a whole, whether or not arising from
transactions in the ordinary course of business; each of the
Company and its subsidiaries has not entered into any
transaction, other than in the ordinary course of business, that
is material to the Company and its subsidiaries, taken as a
whole; each of the Company and its subsidiaries has not sustained
any material loss or interference with its assets, businesses or
properties from fire, explosion, earthquake, flood or other
calamity, whether or not covered by insurance, or from any labor
dispute or any court or legislative or other governmental action,
order or decree. Since the date of the latest balance sheet
included in the Registration Statement and the Prospectus, except
as reflected in the Registration Statement and the Prospectus,
each of the Company and its subsidiaries has not undertaken any
liability or obligation, direct or contingent, except for
liabilities or obligations undertaken in the ordinary course of
business.
(j) Each agreement listed in the Exhibits to the
Registration Statement is in full force and effect and is valid
and enforceable by the Company or one of its subsidiaries in
accordance with its terms, except where the failure of any such
agreement to be in full force and effect and valid and
enforceable by the Company or one of its subsidiaries in
accordance with its terms would not have a material adverse
effect on the assets or properties, business, results of
operations or financial condition of the Company and
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its subsidiaries, taken as a whole, assuming the due authorization,
execution and delivery thereof by each of the other parties
thereto. Neither the Company, nor to the best of the Company's
knowledge, any other party is in default in the observance or
performance of any term or obligation to be performed by it under
any such agreement, and no event has occurred which with notice
or lapse of time or both would constitute such a default which
default or event would have a material adverse effect on the
assets or properties, business, results of operations or
financial condition of the Company and its subsidiaries, taken as
a whole. No default exists, and no event has occurred which with
notice or lapse of time or both would constitute a default, in
the due performance and observance of any term, covenant or
condition, by the Company of any other indenture, mortgage, deed
of trust, note or any other agreement or instrument to which the
Company or any of its subsidiaries is a party or by which any of
them or their properties or businesses is bound or affected which
default or event would have a material adverse effect on the
assets or properties, business, results of operations or
financial condition of the Company and its subsidiaries, taken as
a whole.
(k) Each of the Company and its subsidiaries is not in
violation of any term or provision of its charter or by-laws or
of any franchise, license, permit, judgment, decree, order,
statute, rule or regulation, where the consequences of such
violation would have a material adverse effect on the assets or
properties, business, results of operations or financial
condition of the Company.
(l) Neither the execution, delivery and performance of this
Agreement by the Company nor the consummation of any of the
transactions contemplated hereby or thereby (including, without
limitation, the issuance and sale by the Company of the Shares)
will (i) give rise to a right to terminate or accelerate the due
date of any payment due under, or conflict with or result in the
breach of any term or provision of, or constitute a default (or
any event which with notice or lapse of time or both would
constitute a default) under, or require any consent or waiver
under, or result in the execution or imposition of any lien,
charge or encumbrance upon any properties or assets of the
Company or any of its subsidiaries pursuant to the terms of, any
indenture, mortgage, deed of trust, note or other agreement or
instrument to which the Company or any of its subsidiaries, is a
party or by which any of them or their properties or businesses
is bound, or any franchise, license, permit, judgment, decree,
order, statute, rule or regulation applicable to the Company or
any of its subsidiaries, except for such terminations,
accelerations, conflicts, breaches, defaults and events which
would not, individually or in the aggregate, result in a material
adverse effect on the assets or properties, business, results of
operations or financial condition of the Company and its
subsidiaries, taken as a whole, or (ii) violate any provision of
the charter or by-laws of the Company or any of its subsidiaries.
(m) The Company has 60,000,000 authorized shares of Common
Stock, 14,804,542 of which are issued and outstanding. As of
June 30, 1997, the Company had an authorized and outstanding
capitalization as set forth under the caption "Capitalization" in
the Prospectus. All of the outstanding shares of Common Stock
have been duly and validly authorized and have been duly and
validly issued and are fully paid and nonassessable and none of
them was issued in violation of any preemptive or other similar
statutory right. The Shares, when issued and sold pursuant to
this Agreement, will be duly and validly issued, fully paid and
nonassessable and none of them will be issued in violation of any
preemptive or other similar statutory right. Except as disclosed
in the
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Registration Statement and the Prospectus, there is no
outstanding option, warrant or other right calling for the
issuance of, and no commitment, plan or agreement to issue, any
share of stock of the Company or any security convertible into,
or exercisable or exchangeable for, stock of the Company. The
Common Stock and the undesignated preferred stock, $0.01 par
value (the "Preferred Stock") and the Shares conform to all
statements in relation thereto contained in the Registration
Statement and the Prospectus. No shares of Preferred Stock are
issued and outstanding.
(n) Subsequent to the respective dates as of which
information is given in the Registration Statement and the
Prospectus, except as described or referred to therein, the
Company has not (i) issued any securities or incurred any
liability or obligation, direct or contingent, for borrowed
money, (ii) entered into any transaction not in the ordinary
course of business or (iii) declared or paid any dividend or made
any distribution on any shares of its stock or redeemed,
purchased or otherwise acquired or agreed to redeem, purchase or
otherwise acquire any shares of its stock.
(o) No holder of any security of the Company has any
right to have any security owned by such holder included in the
Registration Statement (not heretofore waived). Holders of
168,905 shares of Common Stock may demand separate registration
of such Common Stock during the period ending 180 days from the
date of this Agreement. The Company has obtained from all
officers and directors of the Company and Charterhouse
Environmental Holdings, L.L.C., Charterhouse Equity Partners II,
L.P. and CDI Equity, LLC, who together, following the Offering,
will beneficially hold an aggregate of 3,456,799 shares of Common
Stock or options and warrants to purchase Common Stock, their
enforceable written agreement that for a period of at least 180
days from the date of this Agreement they will not, without the
prior written consent of the Representatives, sell, offer to
sell, distribute, pledge, grant any option for the sale of, or
otherwise dispose of, directly or indirectly, or encumber, or
exercise any registration rights with respect to, any shares of
Common Stock, any options or warrants to purchase any shares of
Common Stock, or any securities convertible into or exchangeable
for shares of Common Stock now owned by them or hereafter
acquired or with respect to which they have or hereafter acquire
the power of disposition. Certain additional holders of the
Company's Common Stock who beneficially own an aggregate of
274,573 shares of Common Stock have agreed to similar
restrictions for a period of 90 days.
(p) All necessary corporate action has been duly and
validly taken by the Company to authorize the execution, delivery
and performance of this Agreement and the issuance and sale of
the Shares. This Agreement has been duly and validly executed
and delivered by the Company and constitutes and will constitute
the legal, valid and binding obligation of the Company
enforceable against the Company in accordance with its terms,
except (A) as the enforceability thereof may be limited by
bankruptcy, insolvency, fraudulent transfer, fraudulent
conveyance, reorganization, moratorium or other similar laws
affecting the enforcement of creditors' rights generally and by
general equitable
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principles (whether considered in proceedings
in equity or at law) and (B) with respect to this Agreement, to
the extent that rights to indemnity or contribution under this
Agreement may be limited by federal, state or foreign securities
laws or the public policy underlying such laws.
(q) Each of the Company and its subsidiaries is
conducting its business in compliance with all applicable laws,
rules and regulations of the jurisdictions in which it is
conducting business, including, without limitation, all
applicable local, state and federal environmental laws and
regulations, except where the failure to be so in compliance
would not have a material adverse effect on the assets or
properties, business, results of operations or financial
condition of the Company and its subsidiaries, taken as a whole.
(r) No transaction has occurred between or among the
Company and any of its officers or directors or any affiliate or
affiliates of any such officer or director that is required to be
described in and is not described in the Registration Statement
and the Prospectus.
(s) The Company has not taken, nor will it take, directly
or indirectly, any action designed to or which might reasonably
be expected to cause or result in, or which has constituted or
which might reasonably be expected to constitute, the
stabilization or manipulation of the price of the Common Stock to
facilitate the sale or resale of any of the Shares.
(t) The Company has filed all federal, state, local and
foreign tax returns which are required to be filed through the
date hereof, or has received extensions thereof, and has paid all
taxes shown on such returns and all assessments received by it,
except where the failure to file, extend the due date of or pay
the same, individually or in the aggregate would not have a
material adverse effect on the assets or properties, business,
results of operations or financial condition of the Company and
its subsidiaries, taken as a whole.
(u) The Shares have been approved for quotation on the
National Association of Securities Dealers Automated Quotation
("Nasdaq") National Market, subject to official notice of
issuance.
(B) Each Selling Stockholder, severally and not jointly,
represents and warrants as to such Selling Stockholder to each
Underwriter that:
(a) This Agreement, and such Selling Stockholder's Custody
Agreement and power of attorney (the "Custody Agreement" and
"Power of Attorney") among such Selling Stockholder,
_________________, as attorneys-in-fact, and _______________, as
custodian, have been duly and validly executed and delivered by
such Selling
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Stockholder and constitutes and will constitute the
legal, valid and binding obligation of such Selling Stockholder,
enforceable against such Selling Stockholder in accordance with
its terms, except (i) as the enforceability hereof and thereof
may be limited by bankruptcy, insolvency, moratorium or other
similar laws affecting the enforcement of creditors' rights
generally and by general equitable principles and (ii) to the
extent that rights to indemnity or contribution under this
Agreement may be limited by federal and state securities laws or
the public policy underlying such laws.
(b) Such Selling Stockholder has good, valid and marketable
title to the Shares to be sold by such Selling Stockholder
pursuant to this Agreement, free and clear of all liens,
encumbrances, security interests, restrictions or claims
whatsoever, with the legal right and full power to enter into
this Agreement and to sell, transfer and deliver such Shares
hereunder and, upon the delivery of and payment for such Shares
as contemplated hereby, such Selling Stockholder will convey to
the Underwriters good, valid and marketable title to the Shares
being sold by such Selling Stockholder, free and clear of all
liens, encumbrances, security interests, restrictions or claims
whatsoever.
(c) All information with respect to such Selling
Stockholder furnished by or on behalf of such Selling Stockholder
for use in connection with the preparation of the Registration
Statement and Prospectus is true and correct in all material
respects and does not omit to state any material fact necessary
to make such information not misleading.
(d) No transaction has occurred between such Selling
Stockholder and the Company or any of its subsidiaries that is
required to be described in and is not described in the
Registration Statement and the Prospectus.
(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, or which has
constituted or which will reasonably be expected to constitute,
stabilization or manipulation of the price of the Common Stock to
facilitate the sale or resale of any of the Shares.
(f) Such Selling Shareholder hereby repeats and confirms as
if set forth in full herein each of the representations,
warranties and agreements made by such Selling Shareholder in the
Custody Agreement and Power of Attorney and agrees that such
representations, warranties and agreements are made hereby for
the benefit of, and may be relied upon by, (i) the
Representatives, the Underwriters and Xxxxxx, Xxxxx & Xxxxxxx
LLP, counsel to the Underwriters, (ii) the Company and Proskauer
Rose LLP, counsel to the Company, and (iii) each other Selling
Stockholder.
5. Conditions of the Underwriters' Obligations. The
obligations of the Underwriters under this Agreement are several and
not joint. The respective obligations of the Underwriters to purchase
the Shares are subject to each of the following terms and conditions:
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(a) The Prospectus shall have been timely filed with the
Commission in accordance with Section 6(A)(a).
(b) No order preventing or suspending the use of any
preliminary prospectus or the Prospectus shall have been or shall
be in effect, and no order suspending the effectiveness of the
Registration Statement shall be in effect and no proceedings for
such purpose shall be pending before or threatened by the
Commission, and any requests for additional information on the
part of the Commission (to be included in the Registration
Statement or the Prospectus or otherwise) shall have been
complied with to the satisfaction of the Representatives.
(c) The representations and warranties of the Company and
the Selling Stockholders contained in this Agreement and in the
certificates delivered pursuant to Section 5(d) and 5(e) shall be
true and correct when made and on and as of each Closing Date as
if made on such date and the Company and the Selling Stockholders
shall have performed all covenants and agreements and satisfied
all the conditions contained in this Agreement required to be
performed or satisfied by it or them at or before such Closing
Date.
(d) The Representatives shall have received on each Closing
Date a certificate, addressed to the Representatives and dated
such Closing Date, of the chief executive or chief operating
officer and the chief financial officer or chief accounting
officer of the Company, to the effect that the signers of such
certificate have carefully examined the Registration Statement,
the Prospectus and this Agreement and that the representations
and warranties of the Company in this Agreement are true and
correct on and as of such Closing Date with the same effect as if
made on such Closing Date and the Company has performed all
covenants and agreements and satisfied all conditions contained
in this Agreement required to be performed or satisfied by it at
or prior to such Closing Date.
(e) The Representatives shall have received on each Closing
Date a certificate, addressed to the Representatives and dated
such Closing Date, of each Selling Stockholder (or a responsible
officer thereof) to the effect that the representations and
warranties of such Selling Stockholder in this Agreement are true
and correct on and as of such Closing Date with the same effect
as if made on such Closing Date and such Selling Stockholder has
performed all covenants and agreements and satisfied all
conditions contained in this Agreement required to be performed
or satisfied by such Selling Stockholder at or prior to such
Closing Date.
(f) The Representatives shall have received at the time
this Agreement is executed and on each Closing Date a letter or
letters signed by Ernst & Young LLP, addressed to the
Representatives and dated, respectively, the date of this
Agreement and each such Closing Date, in form and substance
satisfactory to the Representatives, confirming that they are
independent accountants within the meaning of the Securities Act
12
and the Rules, that the response to Item 10 of the Registration
Statement is correct insofar as it relates to them and stating in
effect that:
(i) in their opinion the audited financial statements
and financial statement schedules, if any, unaudited
financial statements and pro forma financial statements
included in the Registration Statement and the Prospectus
and reported on by them comply as to form in all material
respects with the applicable accounting requirements of the
Securities Act and the Rules;
(ii) on the basis of a reading of the amounts included
in the Registration Statement and the Prospectus under the
headings "Summary Consolidated Financial Information" and
"Selected Consolidated Financial Data"; a reading of the
minutes of the meetings of the stockholders and directors
and finance and audit committees of the Company; and
inquiries of certain officials of the Company who have
responsibility for financial and accounting matters of the
Company as to transactions and events subsequent to the date
of the latest audited financial statements, nothing came to
their attention which caused them to believe that:
(A) the amounts in "Summary Consolidated Financial
Information" and "Selected Consolidated Financial Data"
included in the Registration Statement and the
Prospectus do not agree with the corresponding amounts
in the audited financial statements from which such
amounts were derived; or
(B) the audited financial statements as of and
for the three years ended December 31, 1996 and the
unaudited financial statements for the six months ended
June 30, 1997 included in the Registration Statement
(i) do not comply in form in all material respects with
the applicable accounting requirements of the
Securities Act and the Rules and (ii) are not in
conformity with generally accepted accounting
principles applied on a basis substantially consistent
with that of the audited financial statements; or
(C) (i) with respect to the Company there were,
at a specified date not more than five business days
prior to the date of the letter, any increases in the
total current liabilities and long-term debt of the
Company or capital stock of the Company or decreases in
working capital (deficit) or total stockholders'
equity (deficit) of the Company, as compared with the
amounts shown on the Company's unaudited June 30, 1997
balance sheet included in the Registration Statement
and the Prospectus, or (ii) for the period from June
30, 1997 to such specified date not more than five
business days prior to the date of the letter, there
were any increases in net
13
losses except for increases in net losses set forth in the
Registration Statement and the Prospectus, in which case the
Company shall deliver to the Representatives a letter containing
an explanation by the Company as to the significance thereof
unless said explanation is not deemed necessary by the
Representatives;
(iii) they have performed certain other procedures as a
result of which they determined that certain information of
an accounting, financial or statistical nature (which is
limited to accounting, financial or statistical information
derived from the general accounting records of the Company)
set forth in the Registration Statement and the Prospectus
and specified by the Representatives agrees with the
accounting records of the Company; and
(iv)on the basis of a reading of the unaudited
consolidated pro forma financial statements included in the
Registration Statement and the Prospectus (the "pro forma
financial statements"); carrying out certain specified
procedures; inquiries of certain officials of the Company
who have responsibility for financial and accounting
matters; and proving the arithmetic accuracy of the
application of the pro forma adjustments to the historical
amounts in the pro forma financial statements, nothing came
to their attention which caused them to believe that the pro
forma financial statements do not comply in form in all
material respects with the applicable accounting
requirements of Rule 11-02 of Regulation S-X or that the pro
forma adjustments have not been properly applied to the
historical amounts in the compilation of such statements.
References to the Registration Statement and the Prospectus in
this paragraph (e) are to such documents as amended and
supplemented at the date of the letter.
(g) [Intentionally omitted]
(h) The Representatives shall have received on each Closing
Date from Proskauer Rose LLP, counsel for the Company, an
opinion, addressed to the Representatives and dated such Closing
Date, and stating in effect that:
(i) The Company has been duly organized and is validly
existing as a corporation in good standing under the laws of
the State of Delaware. Each Subsidiary of the Company set
forth on Schedule III hereto has been duly incorporated or
formed and is an existing corporation in good standing under
the laws of the jurisdiction of its incorporation or
organization.
(ii) Each of the Company and the Subsidiaries set forth
on Schedule III hereto has all requisite corporate power and
authority to own, lease and license its assets and
properties and conduct its business as now being conducted
and as
14
described in the Registration Statement and the Prospectus;
and the Company has all requisite corporate power and authority
and all necessary governmental authorizations, approvals, consents,
orders, licenses, certificates and permits required pursuant to
New York State law, federal law and the General Corporation Law of the
State of Delaware or known to such counsel to be required
under the laws of other jurisdictions, and all other
necessary authorizations, approvals, consents, orders,
licenses, certificates and permits either called for by any
contracts or other documents of which such counsel has
knowledge or which are, to such counsel's knowledge,
otherwise required, to enter into, deliver and perform this
Agreement and to issue and sell the Shares, other than those
required under the Securities Act, the Exchange Act and
state and foreign Blue Sky laws.
(iii) The Company has 60,000,000 authorized shares of
Common Stock, 14,804,542 of which are issued and outstanding
of record; no shares of Preferred Stock are issued and
outstanding; as of June 30, 1997, the Company had an
authorized and outstanding capitalization of record as set
forth under the caption "Capitalization" in the Prospectus;
the certificates evidencing the Shares are in due and proper
legal form and have been duly authorized for issuance by the
Company; all of the outstanding shares of Common Stock of
the Company have been duly and validly authorized and have
been duly and validly issued and are fully paid and
nonassessable and none of them was issued in violation of
any preemptive or other similar statutory right. The
Shares, when issued and sold pursuant to this Agreement,
will be duly and validly issued, fully paid and
nonassessable and none of them will have been issued in
violation of any preemptive or other similar statutory
right. To such counsel's knowledge, except as disclosed in
the Registration Statement and the Prospectus, there is no
outstanding option, warrant or other right calling for the
issuance of, and no commitment, plan or agreement to issue,
any share of stock of the Company or any security
convertible into, or exercisable or exchangeable for, stock
of the Company. The Common Stock, the Preferred Stock and
the Shares conform to all statements in relation thereto
contained in the Registration Statement and the Prospectus
in all material respects.
(iv) All necessary corporate action has been duly and
validly taken by the Company to authorize the execution,
delivery and performance of this Agreement. This Agreement
has been duly and validly executed and delivered by the
Company and constitutes and will constitute the legal, valid
and binding obligation of the Company enforceable against
the Company in accordance with its terms except (A) as such
enforceability may be limited by applicable bankruptcy,
insolvency, fraudulent transfer, fraudulent conveyance,
reorganization, moratorium or other similar laws affecting
the enforcement of creditors' rights generally and by
general equitable principles (whether considered in
proceedings in equity or at law) and (B) with respect to
this Agreement, to the
15
extent that rights to indemnity or contribution under this Agreement
may be limited by federal, state or foreign securities laws or the
public policy underlying such laws.
(v) Neither the execution, delivery and performance of
this Agreement by the Company nor the consummation of any of
the transactions contemplated hereby (including, without
limitation, the issuance and sale by the Company of the
Shares) will (i) give rise to a right to terminate or
accelerate the due date of any payment due under, or
conflict with or result in the breach of any term or
provision of, or constitute a default (or any event which
with notice or lapse of time, or both, would constitute a
default) under, or require any consent or waiver under, or
result in the execution or imposition of any lien, charge or
encumbrance upon any properties or assets of the Company or
any of its subsidiaries pursuant to the terms of, any
indenture, mortgage, deed of trust, note or other agreement
or instrument of which such counsel has knowledge and to
which the Company or any of its subsidiaries is a party or
by which any of them or their properties or businesses is
bound, or any franchise, license, permit, judgment, decree,
order, statute, rule or regulation of which such counsel has
knowledge and applicable to the Company or any of its
subsidiaries, except for such terminations, accelerations,
conflicts, breaches, defaults and events which would not,
individually or in the aggregate, result in a material
adverse effect on the assets or properties, business,
results of operations or financial condition of the Company
and its subsidiaries, taken as a whole, or (ii) violate any
provision of the charter or by-laws of the Company or any of
its subsidiaries.
(vi) To such counsel's knowledge, no default exists,
and no event has occurred which with notice or lapse of time
or both would constitute a default, in the due performance
and observance of any term, covenant or condition, of any
indenture, mortgage, deed of trust, note or any other
agreement or instrument to which the Company or any of its
subsidiaries is a party or by which any of them or their
assets or properties or businesses is bound or affected
which default would have a material adverse effect on the
assets or properties, business, results of operations or
financial condition of the Company and its subsidiaries,
taken as a whole.
(vii)To such counsel's knowledge, each of the Company
and its subsidiaries is not in violation of any term or
provision of its charter or by-laws or of any franchise,
license, permit, judgment, decree, order, statute, rule or
regulation, where the consequences of such violation would
have a material adverse effect on the assets or properties,
businesses, results of operations or financial condition of
the Company and its subsidiaries, taken as a whole.
16
(viii) No consent, approval, authorization or order of
any federal or New York State court or governmental agency
or body or under the General Corporation Law of the State of
Delaware or otherwise known to such counsel to be required
is required for the performance of this Agreement by the
Company or the consummation of the transactions contemplated
hereby, except such as have been obtained under the
Securities Act, the Exchange Act and such as may be required
under state securities or Blue Sky laws in connection with
the purchase and distribution of the Shares by the several
Underwriters.
(ix) Except as described in the Registration Statement
and the Prospectus, to such counsel's knowledge, there is no
litigation or governmental or other proceeding or
investigation before any court or before or by any public
body or board pending or threatened (and such counsel does
not know of any basis therefor) against, or involving the
assets, properties or businesses of, the Company or any of
its subsidiaries which, if determined adversely to the
Company or any of its subsidiaries, would materially
adversely affect the value or the operation of any such
assets or properties or the business, results of operations
or financial condition of the Company and its subsidiaries,
taken as a whole.
(x) The agreement of each of the Company, Charterhouse
Environmental Holdings, L.L.C., Charterhouse Equity Partners
II, L.P. and CDI Equity, LLC stating that for a period of
180 days from the date of the Prospectus they will not,
without the Representatives' prior written consent, sell,
offer to sell, distribute, pledge, grant any option for the
sale of, or otherwise dispose of, directly or indirectly, or
encumber, or exercise any registration rights with respect
to, any shares of Common Stock, any options or warrants to
purchase any shares of Common Stock, or any securities
convertible into or exchangeable for shares of Common Stock
now owned by them or hereafter acquired or with respect to
which they have or hereafter acquire the power of
disposition has been duly and validly delivered by such
persons and constitutes a legal, valid and binding
obligation of each such person enforceable against each such
person in accordance with its terms, except as the
enforceability thereof may be limited by applicable
bankruptcy, insolvency, fraudulent transfer, fraudulent
conveyance, reorganization, moratorium or other similar laws
affecting the enforcement of creditors' rights generally and
by general equitable principles (whether considered in
proceedings in equity or at law). 3,731,372 shares of
Common Stock which are outstanding or issuable upon the
exercise of stock options or warrants or the conversion of
debt instruments of which such counsel has knowledge are
subject to a written agreement obtained by the Company
pursuant to Section 4(A)(o) of this Agreement.
(xi) The statements in the Prospectus under the
captions "Risk Factors--Extensive Environmental and Land Use
Laws and Regulations"; "--Anti-
17
Takeover Provisions"; "--Shares Eligible for Future Sale; Possible
Adverse Effect on Future Market Price"; "Description of Capital Stock"
and "Shares Eligible for Future Sale" insofar as such statements
constitute a summary of documents referred to therein or
matters of law, are fair summaries of the material
provisions thereof and accurately present in all material
respects the information called for with respect to such
documents and matters. All contracts and other documents
required to be filed as exhibits to, or described in, the
Registration Statement of which such counsel has knowledge
have been so filed with the Commission or are fairly
described in the Registration Statement, as the case may be.
(xii) The Registration Statement, all preliminary
prospectuses and the Prospectus and each amendment or
supplement thereto (except for the financial statements and
notes and other financial and statistical data included
therein, as to which such counsel need express no opinion)
comply as to form in all material respects with the
requirements of the Securities Act and the Rules.
(xiii) The Registration Statement has become effective
under the Securities Act, and no stop order suspending the
effectiveness of the Registration Statement has been issued
and no proceedings for that purpose have been instituted or
are threatened, pending or contemplated.
To the extent deemed advisable by such counsel, they may
rely as to matters of fact on certificates of responsible officers of
the Company and public officials and on the opinions of other counsel
satisfactory to the Representatives as to matters which are governed
by laws other than the laws of the State of New York, the General
Corporation Law of the State of Delaware and the federal laws of the
United States; provided that such counsel shall state that in their
opinion the Underwriters and they are justified in relying on such
other opinions. Such counsel shall also state that in connection with
rendering the opinions in (i) and (ii) of this Section 5(h), such
counsel has assumed that the corporation laws of the States of
Missouri, Kansas, Ohio, Illinois and Oklahoma are identical to the
General Corporation Law of the State of Delaware. Copies of such
certificates and other opinions shall be furnished to the
Representatives and counsel for the Underwriters.
In addition, such counsel shall state in a separate letter
to the Representatives that such counsel has participated in
conferences with certain officers of, and with the accountants and
counsel for, the Company and representatives of the Representatives
concerning the preparation of the Registration Statement, the
preliminary prospectus and the Prospectus. Such separate letter shall
also state that although such counsel has made certain inquiries and
investigations in connection with the preparation of the Registration
Statement, such counsel did not independently verify the accuracy or
completeness of the statements made therein or in the preliminary
prospectus or in the Prospectus and the limitations inherent in the
role of outside counsel are such that such counsel cannot and does not
assume responsibility for or pass on the accuracy and completeness of
such statements, except insofar as such statements relate to such
counsel. On the basis of the foregoing, such counsel shall state that
its work in connection with this matter did not disclose any
information that caused such
18
counsel to believe that the Registration Statement at the time it became
effective (except with respect to the financial statements and notes and
schedules thereto and other financial and statistical data, as to which such
counsel need make no statement) contained any untrue statement of a material
fact or omitted to state a material fact required to be stated therein or
necessary to make the statements therein not misleading, or that the
Prospectus as of its date and as of the date of such letter, contained or
contains an untrue statement of a material fact or omitted or omits 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 (other
than financial statements and other information of a statistical, accounting,
or financial nature which are or should be contained therein, as to which
such counsel shall express no view).
(i) [intentionally omitted]
(j) The Representatives shall have received on each Closing
Date from counsel for each of the Selling Stockholders, an
opinion, addressed to the Representatives and dated such Closing
Date, and stating in effect that:
(i) Such Selling Stockholder has been duly organized,
validly existing and in good standing under the laws of the
state of the jurisdiction of its organization. Such Selling
Stockholder has all requisite power and authority
(corporate, partnership or otherwise) and all necessary
authorizations, approvals, consents, orders, licenses,
certificates and permits to enter into, deliver and perform
this Agreement and the Custody Agreement and Power of
Attorney and to sell the Shares to be sold by it hereunder,
other than those required under the Securities Act and state
and foreign Blue Sky laws. This Agreement has been duly and
validly authorized, executed and delivered by such Selling
Stockholder and constitutes the legal and valid obligation
of such Selling Stockholder.
(ii) No consent, approval, authorization or order of
any Federal or state court or governmental agency or body is
required for the performance of this Agreement and the
Custody Agreement and Power of Attorney by such Selling
Stockholder or the sale by such Selling Stockholder of the
Shares to be sold by it hereunder, except such as have been
obtained under the Securities Act and such as may be
required under state securities or Blue Sky laws in
connection with the purchase and distribution of such Shares
by the several Underwriters (as to which such counsel need
express no opinion) and such as may be required under the
rules of the National Association of Securities Dealers,
Inc. with respect to the underwriting arrangements reflected
in this Agreement (as to which such counsel need express no
opinion).
(iii) To the best of such counsel's knowledge, there is
no litigation or governmental or other proceeding or
investigation before any court or before or by any public
body or board pending or threatened against, or involving
the assets,
19
properties or business of, such Selling Stockholder, which might
have a material adverse effect upon the ability of such Selling
Stockholder to perform its obligations under this Agreement.
(iv) Each of the Underwriters has received good and
valid title to the Shares being sold by such Selling
Stockholder hereunder, free and clear of any liens,
encumbrances, security interests and claims whatsoever.
To the extent deemed advisable by such counsel, they may
rely as to matters of fact on certificates of responsible officers of
the Company, the Selling Stockholders and public officials. Copies of
such certificates shall be furnished to the Representatives and
counsel for the Underwriters.
(k) All proceedings taken in connection with the sale of
the Firm Shares and the Option Shares as herein contemplated
shall be reasonably satisfactory in form and substance to the
Representatives and their counsel and the Underwriters shall have
received from Xxxxxx, Xxxxx & Xxxxxxx LLP a favorable opinion,
addressed to the Representatives and dated such Closing Date,
with respect to the Shares, the Registration Statement and the
Prospectus, and such other related matters, as the
Representatives may reasonably request, and the Company and the
Selling Stockholders shall have furnished to Xxxxxx, Xxxxx &
Bockius LLP such documents as they may reasonably request for the
purpose of enabling them to pass upon such matters.
(l) The Representatives shall have received on each Closing
Date a certificate, including exhibits thereto, addressed to the
Representatives and dated such Closing Date, of the Secretary or
an Assistant Secretary of the Company, signed in such officer's
capacity as such officer, as to the (i) certificate of
incorporation and bylaws of the Company, (ii) resolutions
authorizing the execution and delivery of the Registration
Statement, this Agreement and the performance of the transactions
contemplated by this Agreement, the Registration Statement, the
Prospectus and the offering of the Shares, and (iii) incumbency
of the person or persons authorized to execute and deliver the
Registration Statement, this Agreement and any other documents
contemplated by the offering of the Shares.
(m) The Representatives shall have received on each Closing
Date certificates of the Secretaries of State of each State where
the Company or any of its subsidiaries is incorporated and doing
business as to the good standing of the Company or such
subsidiary, listing all charter documents on file, if applicable,
qualification of the Company or such subsidiary to do business as
a foreign corporation, if applicable, payment of taxes and filing
of annual reports. In addition, the Representatives shall have
received copies of all charter documents of the Company, County
Disposal, Inc. and ADS, Inc. certified by the Secretary of State
of the State of such corporation's incorporation.
20
6. Covenants of the Company and the Selling Stockholders.
(A) The Company, and where specifically stated to be a covenant of the
Selling Stockholders, each of the Selling Stockholders, covenants and
agrees as follows:
(a) The Company shall prepare the Prospectus in a form
approved by the Representatives and file such Prospectus pursuant
to Rule 424(b) under the Securities Act not later than the
Commission's close of business on the second business day
following the execution and delivery of this Agreement, or, if
such second business day would be more than fifteen business days
after the Effective Date of the Registration Statement or any
post-effective amendment thereto, such earlier date as would
permit such Prospectus to be filed without filing a
post-effective amendment as set forth in Rule 430A(a)(3) under
the Securities Act and shall promptly advise the Representatives
(i) when the Registration Statement shall have become effective,
(ii) when any amendment thereof or any related registration
statement filed with the Commission pursuant to Rule 462(b) of
the Rules shall have become effective, (iii) of any request by
the Commission for any amendment of the Registration Statement or
the Prospectus or for any additional information, (iv) of the
prevention or suspension of the use of any preliminary prospectus
or the Prospectus or of the issuance by the Commission of any
stop order suspending the effectiveness of the Registration
Statement or the institution or threatening of any proceeding for
that purpose and (v) of the receipt by the Company of any
notification with respect to the suspension of the qualification
of the Shares for sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose. If contemplated
by this Agreement, the Company shall prepare and file with the
Commission in conformity with the Securities Act and the Rules a
related registration statement pursuant to Rule 462(b) under the
Securities Act for the purpose of registering additional shares.
The Company shall not file any amendment of the Registration
Statement or amendment or supplement to the Prospectus unless the
Company has furnished the Representatives a copy for its review
prior to filing and shall not file any such proposed amendment or
supplement to which the Representatives reasonably object. The
Company shall use its best efforts to prevent the issuance of any
such stop order and, if issued, to obtain as soon as possible the
withdrawal thereof.
(b) If, at any time when a prospectus relating to the
Shares is required to be delivered under the Securities Act and
the Rules, any event occurs as a result of which the Prospectus
as then amended or supplemented would include any untrue
statement of a material fact or omit to state any material fact
necessary to make the statements therein in the light of the
circumstances under which they were made not misleading, or if it
shall be necessary to amend or supplement the Prospectus to
comply with the Securities Act or the Rules, the Company promptly
shall prepare and file with the Commission, subject to the third
sentence of paragraph (a) of this Section 6(A), an amendment or
supplement which shall correct such statement or omission or an
amendment which shall effect such compliance.
-21-
(c) The Company shall make generally available to its
security holders and to the Representatives as soon as
practicable, but not later than 45 days after the end of the
12-month period beginning at the end of the fiscal quarter of the
Company during which the Effective Date occurs (or 90 days if
such 12-month period coincides with the Company's fiscal year),
an earnings statement (which need not be audited) of the Company,
covering such 12-month period, which shall satisfy the provisions
of Section 11(a) of the Securities Act or Rule 158 of the Rules.
(d) The Company shall furnish to the Representatives and
counsel for the Underwriters, without charge, signed copies of
the Registration Statement (including all exhibits thereto and
amendments thereof) and to each other Underwriter a copy of the
Registration Statement (without exhibits thereto) and all
amendments thereof and, so long as delivery of a prospectus by an
Underwriter or dealer may be required by the Securities Act or
the Rules, as many copies of any preliminary prospectus and the
Prospectus and any amendments thereof and supplements thereto as
the Representatives may reasonably request.
(e) The Company and the Selling Stockholders shall
cooperate with the Representatives and their counsel in
endeavoring to qualify the Shares for offer and sale under the
laws of such jurisdictions as the Representatives may designate
and shall maintain such qualifications in effect so long as
required for the distribution of the Shares; provided, however,
that neither the Company nor the Selling Stockholders shall be
required in connection therewith, as a condition thereof, to
qualify as a foreign corporation or to execute a general consent
to service of process in any jurisdiction or subject itself to
taxation as doing business in any jurisdiction.
(f) For a period of five years after the date of this
Agreement, the Company shall supply to the Representatives, and
to each other Underwriter who may so request in writing, copies
of such financial statements and other periodic and special
reports as the Company may from time to time distribute generally
to the holders of any class of its capital stock and to furnish
to the Representatives a copy of each annual or other report it
shall be required to file with the Commission.
(g) Without the prior written consent of the
Representatives, for a period of 180 days after the date of this
Agreement, the Company shall not issue, sell or register with the
Commission, or otherwise encumber or dispose of, directly or
indirectly, any equity securities of the Company (or any
securities convertible into or exercisable or exchangeable for
equity securities of the Company), except for (i) the issuance of
the Shares pursuant to the Registration Statement, (ii) the
issuance of shares pursuant to the exercise of outstanding
options under the Company's existing stock option plans, (iii) in
connection with an acquisition by the Company of another entity
pursuant to which the Company sells or transfers any of its
shares of Common Stock to a third party as part or all of the
purchase price of such entity; provided, however, that prior to
any sale or
-22-
transfer, the Company shall use commercially reasonable efforts
to obtain the agreement of such third party in writing with the
Representatives that it will not sell, offer to sell, distribute,
pledge, grant any option for the sale of, or otherwise dispose
of, directly or indirectly, or encumber, or exercise any
registration rights with respect to, such shares of Common Stock,
any options or warrants to purchase any shares of Common Stock,
or any securities convertible into or exchangeable for shares of
Common Stock for the remainder of the 180 days after the date of
this Agreement, and (iv) the sale or transfer by the Company of
shares of Common Stock in connection with the hiring of officers
or directors not previously employed by the Company; provided,
however, that prior to any sale or transfer, such officer or
director shall have agreed in writing with the Representatives
that he or she will not sell, offer to sell, distribute, pledge,
grant any option for the sale of, or otherwise dispose of,
directly or indirectly, or encumber, or exercise any registration
rights with respect to, such shares of Common Stock, any options
or warrants to purchase any shares of Common Stock, or any
securities convertible into or exchangeable for shares of Common
Stock for the remainder of the 180 days after the date of this
Agreement.
(h) On or before completion of this offering, the Company
shall make all filings required under applicable securities laws
and by the Nasdaq National Market (including any required
registration under the Exchange Act).
(B) The Company agrees to pay, or reimburse if paid by the
Representatives, whether or not the transactions contemplated hereby
are consummated or this Agreement is terminated, all costs and
expenses of the Company and the Selling Stockholders incident to the
public offering of the Shares and the performance of the obligations
of the Company under this Agreement including those relating to (i)
the preparation, printing, filing and distribution of the Registration
Statement including all exhibits thereto, each preliminary prospectus,
the Prospectus, all amendments and supplements to the Registration
Statement and the Prospectus, and the printing, filing and
distribution of this Agreement; (ii) the preparation and delivery of
certificates for the Shares to the Underwriters; (iii) the
registration or qualification of the Shares for offer and sale under
the securities or Blue Sky laws of the various jurisdictions referred
to in Section 6(A)(e), including the fees and disbursements of counsel
for the Underwriters in connection with such registration and
qualification and the preparation, printing, distribution and shipment
of preliminary and supplementary Blue Sky memoranda (it being
understood that the Company shall not be responsible for the fees and
disbursements of counsel for the Underwriters other than as described
in this Section 6(B)(iii)); (iv) the furnishing (including costs of
shipping and mailing) to the Representatives and to the Underwriters
of copies of each preliminary prospectus, the Prospectus and all
amendments or supplements to the Prospectus, and of the several
documents required by this Section to be so furnished, as may be
reasonably requested for use in connection with the offering and sale
of the Shares by the Underwriters or by dealers to whom Shares may be
sold; (v) the filing fees of the National Association of Securities
Dealers, Inc. in connection with its review of the terms of the public
offering; (vi) the furnishing (including costs of shipping and
mailing) to the Representatives
-23-
and to the Underwriters of copies of all reports and information
required by Section 6(A)(f); and (vii) inclusion of the Shares for
quotation on the Nasdaq National Market.
7. Indemnification.
(a) The Company and the Selling Stockholders agree to
indemnify and hold harmless each Underwriter and each person, if
any, who controls any Underwriter within the meaning of Section
15 of the Securities Act or Section 20 of the Exchange Act
against any and all losses, claims, damages and liabilities,
joint or several (including any reasonable investigation, legal
and other expenses incurred in connection with, and any amount
paid in settlement of, any action, suit or proceeding or any
claim asserted), to which they, or any of them, may become
subject under the Securities Act, the Exchange Act or other
federal or state law or regulation, at common law or otherwise,
insofar as such losses, claims, damages or liabilities arise out
of or are based upon any untrue statement or alleged untrue
statement of a material fact contained in any preliminary
prospectus, the Registration Statement or the Prospectus or any
amendment thereof or supplement thereto, or arise out of or are
based upon 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; provided, however, that
such indemnity shall not inure to the benefit of any Underwriter
(or any person controlling such Underwriter) on account of any
losses, claims, damages or liabilities arising from the sale of
the Shares to any person by such Underwriter (i) if such untrue
statement or omission or alleged untrue statement or omission was
made in such preliminary prospectus, the Registration Statement
or the Prospectus, or such amendment or supplement, in reliance
upon and in conformity with information furnished in writing to
the Company by the Representatives on behalf of any Underwriter
specifically for use therein or, (ii) as to any preliminary
prospectus, with respect to any Underwriter, to the extent that
any such loss, claim, damage or liability of such Underwriter
results from an untrue statement of a material fact contained in,
or the omission of a material fact from, such preliminary
prospectus, which untrue statement or omission was corrected in
the Prospectus, if such Underwriter sold Shares to the person
alleging such loss, claim, damage or liability without sending or
giving, at or prior to the written confirmation of such sale, a
copy of the Prospectus, unless such failure resulted from the
failure of the Company to deliver copies of the Prospectus to
such Underwriter on a timely basis to permit such sending or
giving; provided, further, that no Selling Stockholder shall be
responsible for losses, claims, damages or liabilities arising
out of or based upon such untrue statement or alleged untrue
statement or omission thereof based upon information other than
information provided in writing by such Selling Stockholder
expressly for use in the Registration Statement. This indemnity
agreement will be in addition to any liability which the Company
or the Selling Stockholders may otherwise have.
(b) Each Underwriter agrees, severally and not jointly, to
indemnify and hold harmless the Company, the Selling
Stockholders, each person, if any, who controls the
-24-
Company or the Selling Stockholders within the meaning of
Section 15 of the Securities Act or Section 20 of the Exchange
Act, each director of the Company, and each officer of the
Company who signs the Registration Statement, to the same
extent as the foregoing indemnity from the Company and the
Selling Stockholders to each Underwriter, but only insofar as
such losses, claims, damages or liabilities arise out of or
are based upon any untrue statement or omission or alleged
untrue statement or omission which was made in any preliminary
prospectus, the Registration Statement or the Prospectus, or
any amendment thereof or supplement thereto, contained in the
last paragraph of the cover page, in the paragraph relating to
stabilization or the paragraph relating to affiliate
transactions on the inside front cover page of the Prospectus
and the statements with respect to the public offering of the
Shares under the caption "Underwriting" in the Prospectus;
provided, however, that the obligation of each Underwriter to
indemnify the Company or a Selling Stockholder (including any
controlling person, director or officer thereof) shall be
limited to the net proceeds received by the Company or such
Selling Stockholder from such Underwriter.
(c) Any party that proposes to assert the right to be
indemnified under this Section will, promptly after receipt of
notice of commencement of any action, suit or proceeding against
such party in respect of which a claim is to be made against an
indemnifying party or parties under this Section, notify each
such indemnifying party of the commencement of such action, suit
or proceeding, enclosing a copy of all papers served. No
indemnification provided for in Section 7(a) or 7(b) shall be
available to any party who shall fail to give notice as provided
in this Section 7(c) if the party to whom notice was not given
was unaware of the proceeding to which such notice would have
related and was prejudiced by the failure to give such notice but
the omission so to notify such indemnifying party of any such
action, suit or proceeding shall not relieve it from any
liability that it may have to any indemnified party for
contribution or otherwise than under this Section. In case any
such action, suit or proceeding shall be brought against any
indemnified party and it shall notify the indemnifying party of
the commencement thereof, the indemnifying party shall be
entitled to participate in, and, to the extent that it shall
wish, jointly with any other indemnifying party similarly
notified, to assume the defense thereof, with counsel reasonably
satisfactory to such indemnified party, and after notice from the
indemnifying party to such indemnified party of its election so
to assume the defense thereof and the approval by the indemnified
party of such counsel, the indemnifying party shall not be liable
to such indemnified party for any legal or other expenses, except
as provided below and except for the reasonable costs of
investigation subsequently incurred by such indemnified party in
connection with the defense thereof. The indemnified party shall
have the right to employ its counsel in any such action, but the
fees and expenses of such counsel shall be at the expense of such
indemnified party unless (i) the employment of counsel by such
indemnified party has been authorized in writing by the
indemnifying parties, (ii) the indemnified party shall have
reasonably concluded that there may be a conflict of interest
between the indemnifying parties and the indemnified party in the
conduct of the defense of such action (in which case the
-25-
indemnifying parties shall not have the right to direct the
defense of such action on behalf of the indemnified party) or
(iii) the indemnifying parties shall not have employed counsel to
assume the defense of such action within a reasonable time after
notice of the commencement thereof, in each of which cases the
fees and expenses of counsel shall be at the expense of the
indemnifying parties. An indemnifying party shall not be liable
for any settlement of any action, suit, proceeding or claim
effected without its written consent; provided, however, that
such consent shall not be unreasonably withheld.
8. Contribution. In order to provide for just and
equitable contribution in circumstances in which the indemnification
provided for in Sections 7(a) and 7(b) is due in accordance with its
terms but for any reason is held to be unavailable from the Company or
the Selling Stockholders or the Underwriters, as the case may be, the
Company, the Selling Stockholders and the Underwriters shall
contribute to the aggregate losses, claims, damages and liabilities
(including any investigation, legal and other expenses reasonably
incurred in connection with, and any amount paid in settlement of, any
action, suit or proceeding or any claims asserted, but after deducting
any contribution received by any person entitled hereunder to
contribution from any person who may be liable for contribution) to
which the Company, the Selling Stockholders and one or more of the
Underwriters may be subject in such proportion as is appropriate to
reflect the relative benefits received by the Company and the Selling
Stockholders on the one hand and the Underwriters on the other from
the offering of the Shares or, if such allocation is not permitted by
applicable law or indemnification is not available as a result of the
indemnifying party not having received notice as provided in Section 7
hereof, in such proportion as is appropriate to reflect not only the
relative benefits referred to above but also the relative fault of the
Company and the Selling Stockholders on the one hand and the
Underwriters on the other in connection with the statements or
omissions which resulted in such losses, claims, damages, liabilities
or expenses, as well as any other relevant equitable considerations.
The relative benefits received by the Company, the Selling
Stockholders and the Underwriters shall be deemed to be in the same
proportion as (x) the total proceeds from the offering (net of
underwriting discounts but before deducting expenses) received by the
Company or the Selling Stockholders, as set forth in the table on the
cover page of the Prospectus, bear to (y) the underwriting discounts
received by the Underwriters, as set forth in the table on the cover
page of the Prospectus. The relative fault of the Company, the
Selling Stockholders and the Underwriters shall be determined by
reference to, among other things, whether the untrue or alleged untrue
statement or omission or alleged omission of a material fact related
to information supplied by the Company, the Selling Stockholders or
the Underwriters and the parties' relative intent, knowledge, access
to information and opportunity to correct or prevent such statement or
omission. The Company, the Selling Stockholders and the Underwriters
agree that it would not be just and equitable if contribution pursuant
to this Section 8 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 above. Notwithstanding the
provisions of this Section 8, (i) in no case shall any Underwriter
(except as may be provided in the Agreement Among Underwriters) be
liable or responsible for any
-26-
amount in excess of the underwriting discount applicable to the
Shares purchased by such Underwriter hereunder, and (ii) the
Company and the Selling Stockholders shall be liable and
responsible for any amount in excess of such underwriting discount;
provided, however, that no person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation. For
purposes of this Section 8, each person, if any, who controls an
Underwriter within the meaning of Section 15 of the Securities Act
or Section 20(a) of the Exchange Act shall have the same rights to
contribution as such Underwriter, and each person, if any, who
controls the Company or a Selling Stockholder within the meaning of
the Section 15 of the Securities Act or Section 20(a) of the
Exchange Act, each officer of the Company who shall have signed the
Registration Statement and each director of the Company shall have
the same rights to contribution as the Company or such Selling
Stockholder, as the case may be, subject in each case to clauses
(i) and (ii) in the immediately preceding sentence of this Section
8. Any party entitled to contribution will, promptly after receipt
of notice of commencement of any action, suit or proceeding against
such party in respect of which a claim for contribution may be made
against another party or parties under this Section, notify such
party or parties from whom contribution may be sought, but the
failure so to notify such party or parties from whom contribution
may be sought shall not relieve the party or parties from whom
contribution may be sought from any other obligation it or they may
have hereunder or otherwise than under this Section. No party
shall be liable for contribution with respect to any action, suit,
proceeding or claim settled without its written consent. The
Underwriter's obligations to contribute pursuant to this Section 8
are several in proportion to their respective underwriting
commitments and not joint.
Notwithstanding any other provision of Section 7 or Section
8 hereof, (i) in no event shall any Selling Stockholder be required to
pay an aggregate amount of contribution or other payments in respect
of losses, expenses, liabilities or claims under this Section 8 which
would be greater than the aggregate amount such Selling Stockholder
would have been required to pay under Section 7 in respect of such
losses, expenses, liabilities or claims if such indemnification were
available, and (ii) none of the Selling Stockholders shall be liable
for indemnification or contribution payments or any other payments
under Section 7 or Section 8 hereof in an aggregate amount exceeding
the net proceeds received by such Selling Stockholder from the sale of
Shares hereunder.
9. Termination. This Agreement may be terminated with
respect to the Shares to be purchased on a Closing Date by the
Representatives by notifying the Company at any time
(a) in the absolute discretion of the Representatives at or
before any Closing Date: (i) if on or prior to such date, any
domestic or international event or act or occurrence has
materially disrupted, or in the opinion of the Representatives
will in the future materially disrupt, the securities markets;
(ii) if there has occurred any new outbreak or material
escalation of hostilities or other calamity or crisis the effect
of which on the financial markets of the United States is such as
to make it, in the judgment of the Representatives, inadvisable
to proceed with the offering; (iii) if there shall be such a
material adverse change in general financial, political or
economic conditions or the effect of international conditions on
the financial markets in the United States is such as to make
-27-
it, in the judgment of the Representatives, inadvisable or
impracticable to market the Shares; (iv) if trading in the Shares
has been suspended by the Commission or trading generally on the
New York Stock Exchange, Inc. or on the American Stock Exchange,
Inc. has been suspended or limited, or minimum or maximum ranges
for prices for securities shall have been fixed, or maximum
ranges for prices for securities have been required, by said
exchanges or by order of the Commission, the National Association
of Securities Dealers, Inc., or any other governmental or
regulatory authority; or (v) if a banking moratorium has been
declared by any state or federal authority, or
(b) at or before any Closing Date, that any of the
conditions specified in Section 5 shall not have been fulfilled
when and as required by this Agreement.
If this Agreement is terminated pursuant to any of its
provisions, neither the Company nor the Selling Stockholders shall be
under any liability to any Underwriter, and no Underwriter shall be
under any liability to the Company or the Selling Stockholders, except
that (y) if this Agreement is terminated by the Representatives or the
Underwriters because of any failure, refusal or inability on the part
of the Company or a Selling Stockholder to comply with the terms or to
fulfill any of the conditions of this Agreement, the Company will,
upon the request of the Representatives, reimburse the Underwriters
for all out-of-pocket expenses (including the fees and disbursements
of their counsel) incurred by them in connection with the proposed
purchase and sale of the Shares or in contemplation of performing
their obligations hereunder and (z) no Underwriter who shall have
failed or refused to purchase the Shares agreed to be purchased by it
under this Agreement, without some reason sufficient hereunder to
justify cancellation or termination of its obligations under this
Agreement, shall be relieved of liability to the Company, the Selling
Stockholders or to the other Underwriters for damages occasioned by
its failure or refusal.
10. Substitution of Underwriters. If one or more of the
Underwriters shall fail (other than for a reason sufficient to justify
the cancellation or termination of this Agreement under Section 9) to
purchase on any Closing Date the Shares agreed to be purchased on such
Closing Date by such Underwriter or Underwriters, the Representatives
may find one or more substitute underwriters to purchase such Shares
or make such other arrangements as the Representatives may deem
advisable or one or more of the remaining Underwriters may agree to
purchase such Shares in such proportions as may be approved by the
Representatives, in each case upon the terms set forth in this
Agreement. If no such arrangements have been made by the close of
business on the business day following such Closing Date,
(a) if the number of Shares to be purchased by the
defaulting Underwriters on such Closing Date shall not exceed 10%
of the Shares that all the Underwriters are obligated to purchase
on such Closing Date, then each of the nondefaulting Underwriters
shall be obligated to purchase such Shares on the terms herein
set forth in proportion to their respective obligations
hereunder; provided, that in no event shall the maximum number of
Shares that any Underwriter has agreed to purchase pursuant to
Section 1 be
-28-
increased pursuant to this Section 10 by more than one-ninth of such
number of Shares without the written consent of such Underwriter, or
(b) if the number of Shares to be purchased by the
defaulting Underwriters on such Closing Date shall exceed 10% of
the Shares that all the Underwriters are obligated to purchase on
such Closing Date, then the Company shall be entitled to an
additional business day within which it may, but is not obligated
to, find one or more substitute underwriters reasonably
satisfactory to the Representatives to purchase such Shares upon
the terms set forth in this Agreement.
In any such case, either the Representatives or the Company
shall have the right to postpone the applicable Closing Date for a
period of not more than five business days in order that necessary
changes and arrangements (including any necessary amendments or
supplements to the Registration Statement or Prospectus) may be
effected by the Representatives and the Company. If the number of
Shares to be purchased on such Closing Date by such defaulting
Underwriter or Underwriters shall exceed 10% of the Shares that all
the Underwriters are obligated to purchase on such Closing Date, and
none of the nondefaulting Underwriters or the Company shall make
arrangements pursuant to this Section within the period stated for the
purchase of the Shares that the defaulting Underwriters agreed to
purchase, this Agreement shall terminate with respect to the Shares to
be purchased on such Closing Date without liability on the part of any
nondefaulting Underwriter to the Company or the Selling Stockholders
and without liability on the part of the Company and the Selling
Stockholders, except in both cases as provided in Sections 6(B), 7, 8
and 9. The provisions of this Section shall not in any way affect the
liability of any defaulting Underwriter to the Company, the Selling
Stockholders or the nondefaulting Underwriters arising out of such
default. A substitute underwriter hereunder shall become an
Underwriter for all purposes of this Agreement.
11. Miscellaneous. The respective agreements,
representations, warranties, indemnities and other statements of the
Company or its officers, of the Selling Stockholders and of the
Underwriters set forth in or made pursuant to this Agreement shall
remain in full force and effect, regardless of any investigation made
by or on behalf of any Underwriter, any Selling Stockholder or the
Company or any of the officers, directors or controlling persons
referred to in Sections 7 and 8 hereof, and shall survive delivery of
and payment for the Shares. The provisions of Sections 6(B), 7, 8 and
9 shall survive the termination or cancellation of this Agreement.
This Agreement has been and is made for the benefit of the
Underwriters, the Company and the Selling Stockholders and their
respective successors and assigns, and, to the extent expressed
herein, for the benefit of persons controlling any of the
Underwriters, the Company or the Selling Stockholders, and directors
and officers of the Company, the Selling Stockholders, if any, and
their respective successors and assigns, 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 any purchaser of
Shares from any Underwriter merely because of such purchase.
-29-
All notices and communications hereunder shall be in writing
and mailed or delivered or by telephone or telegraph if subsequently
confirmed in writing, (a) if to the Representatives, c/o Oppenheimer &
Co., Inc., Xxxxxxxxxxx Xxxxx, Xxxxx Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000 Attention: Xxxxxxxx X. Xxxxxxxx, (b) if to the Company, to
its agent for service as such agent's address appears on the cover
page of the Registration Statement and (c) if to the Selling
Stockholders, to the address set forth in the Custody Agreement and
Power of Attorney.
This Agreement shall be governed by and construed in
accordance with the laws of the State of New York.
-30-
This Agreement may be signed in any number of counterparts,
each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument.
Please confirm that the foregoing correctly sets forth the
agreement among us.
Very truly yours,
AMERICAN DISPOSAL SERVICES, INC.
By_______________________________
Name:
Title:
THE SELLING STOCKHOLDERS NAMED
ON SCHEDULE II HERETO
By________________________________
Name:
Title: Attorney-in-Fact
Confirmed:
XXXXXXXXXXX & CO., INC.
XXXXXXXXX, XXXXXX & XXXXXXXX
SECURITIES CORPORATION
CREDIT SUISSE FIRST BOSTON CORPORATION
Acting severally on behalf of itself
and as representative of the several
Underwriters named in Schedule I annexed
hereto.
By Xxxxxxxxxxx & Co., Inc.
By_________________________
Name: Xxxxxxxx X. Xxxxxxxx
Title: Managing Director
-31-
SCHEDULE I
Number of
Firm Shares to
Name Be Purchased
---- ---------------
Xxxxxxxxxxx & Co., Inc......................................................
Xxxxxxxxx, Xxxxxx & Xxxxxxxx Securities Corporation.........................
Credit Suisse First Boston Corporation......................................
TOTAL.........................
-i-
SCHEDULE II
SELLING STOCKHOLDERS
Number of
Firm Shares to
Name Be Purchased
---- --------------
Charterhouse Environmental Holdings, L.L.C.................................
Charterhouse Equity Partners II, L.P.......................................
CDI Equity, LLC ...........................................................
Chef Nominees Limited......................................................
-ii-
SCHEDULE III
Subsidiary State of Incorporation
---------- ----------------------
County Disposal, Inc. Delaware
American Disposal Services of Kansas, Inc. Kansas
County Disposal (Illinois), Inc. Delaware
County Disposal (Ohio), Inc. Delaware
County Landfill, Inc. Delaware
Southwest Waste, Inc. Missouri
Xxxx'x Transfer Systems, Inc. Missouri
Xxxxxx Phase II, Inc. Ohio
Allied Waste Systems, Inc. Ohio
Xxxx Bros. Waste and Recycling Co., Inc. Ohio
Illinois Bulk Handlers, Inc. Illinois
Shred-All Recycling Systems, Inc. Illinois
Xxxx X. Xxxxxxx Trucking Co., Inc. Illinois
Environtech, Inc. Delaware
ADS, Inc. Oklahoma
Pittsburgh County Landfill, Inc. Oklahoma
American Disposal Services of Missouri, Inc. Oklahoma
-iii-
