United Waste Systems, Inc.
Common Stock, par value $.001 per share
Underwriting Agreement
March 3, 1997
To the Representatives of the several
Underwriters named in the respective
Pricing Agreements hereinafter described.
Ladies and Gentlemen:
From time to time United Waste Systems, Inc., a Delaware
corporation (the "Company"), proposes to enter into one or more
Pricing Agreements (each a "Pricing Agreement") in the form of
Annex I hereto, with such additions and deletions as the parties
thereto may determine, and, subject to the terms and conditions
stated herein and therein, to issue and sell to the firms named in
Schedule I to the applicable Pricing Agreement (such firms
constituting the "Underwriters" with respect to such Pricing
Agreement and the securities specified therein) certain shares of
its Common Stock, par value $.001 per share (the "Shares"),
specified in Schedule II to such Pricing Agreement (with respect to
such Pricing Agreement, the "Firm Shares"). If specified in such
Pricing Agreement, the Company may grant to the Underwriters the
right to purchase at their election an additional number of shares,
specified in such Pricing Agreement as provided in Section 3 hereof
(the "Optional Shares"). The Firm Shares and the Optional Shares,
if any, which the Underwriters elect to purchase pursuant to
Section 3 hereof are herein collectively called the "Designated
Shares".
The terms and rights of any particular issuance of Designated
Shares shall be as specified in the Pricing Agreement relating
thereto.
1. Particular sales of Designated Shares may be made from
time to time to the Underwriters of such Shares, for whom the firms
designated as representatives of the Underwriters of such Shares in
the Pricing Agreement relating thereto will act as representatives
(the "Representatives"). The term "Representatives" also refers to
a single firm acting as sole representative of the Underwriters and
to Underwriters who act without any firm being designated as their
representative. This Underwriting Agreement shall not be construed
as an obligation of the Company to sell any of the Shares or as an
obligation of any of the Underwriters to purchase any of the
Shares. The obligation of the Company to issue and sell any of the
Shares and the obligation of any of the Underwriters to purchase
any of the Shares shall be evidenced by the Pricing Agreement with
respect to the Designated Shares specified therein. Each Pricing
Agreement shall specify the aggregate number of the Firm Shares,
the maximum number of Optional Shares, if any, the initial public
offering price of such Firm and Optional Shares or the manner of
determining such price, the purchase price to the Underwriters of
such Designated Shares, the names of the Underwriters of such
Designated Shares, the names of the Representatives of such
Underwriters, the number of such Designated Shares to be purchased
by each Underwriter and the commission, if any, payable to the
Underwriters with respect thereto and shall set forth the date,
time and manner of delivery of such Firm and Optional Shares, if
any, and payment therefor. The Pricing Agreement shall also
specify (to the extent not set forth in the registration statement
and prospectus with respect thereto) the terms of such Designated
Shares. A Pricing Agreement shall be in the form of an executed
writing (which may be in counterparts), and may be evidenced by an
exchange of telegraphic communications or any other rapid
transmission device designed to produce a written record of
communications transmitted. The obligations of the Underwriters
under this Agreement and each Pricing Agreement shall be several
and not joint.
2. The Company represents and warrants to, and agrees with,
each of the Underwriters that:
(a) A registration statement on Form S-3 (File No. 333-19029)
(the "Initial Registration Statement") in respect of
the Shares has been filed with the Securities and Exchange
Commission (the "Commission"); the Initial Registration
Statement and any post-effective amendment thereto, each in
the form heretofore delivered or to be delivered to the
Representatives and, excluding exhibits to such registration
statement but including all documents incorporated by
reference in the prospectus included therein, to the
Representatives for each of the other Underwriters have been
declared effective by the Commission in such form; other than
a registration statement, if any, increasing the size of the
offering (a "Rule 462(b) Registration Statement"), filed
pursuant to Rule 462(b) under the Securities Act of 1933, as
amended (the " Securities Act"), which became effective upon
filing, no other document with respect to the Initial
Registration Statement, any post-effective amendment thereto
or the Rule 462(b) Registration Statement, if any, or document
incorporated by reference therein has heretofore been filed,
or transmitted for filing, with the Commission (other than
prospectuses filed pursuant to Rule 424(b) of the rules and
regulations of the Commission under the Securities Act, each
in the form heretofore delivered to the Representatives); and
no stop order suspending the effectiveness of the Initial
Registration Statement, any post-effective amendment thereto
or the Rule 462(b) Registration Statement, if any, has been
issued and no proceeding for that purpose has been initiated
or threatened by the Commission (any preliminary prospectus
included in the Initial Registration Statement or filed with
the Commission pursuant to Rule 424 under the Securities Act,
is hereinafter called a "Preliminary Prospectus"; the various
parts of the Initial Registration Statement and the Rule
462(b) Registration Statement, if any, including all exhibits
thereto and the documents incorporated by reference in the
prospectus contained in the Initial Registration Statement at
the time such part of the registration statement became
effective or such part of the Rule 462(b) Registration
Statement, if any, became or hereafter becomes effective, each
as amended at the time such part of the registration statement
became effective, are hereinafter collectively called the
"Registration Statement"; the prospectus relating to the
Shares, in the form in which it has most recently been filed,
or transmitted for filing, with the Commission on or prior to
the date of this Agreement, is hereinafter called the
"Prospectus"; any reference herein to any Preliminary
Prospectus or the Prospectus shall be deemed to refer to and
include the documents incorporated by reference therein
pursuant to the applicable form under the Securities Act, as
of the date of such Preliminary Prospectus or Prospectus, as
the case may be; any reference to any amendment or supplement
to any Preliminary Prospectus or the Prospectus shall be
deemed to refer to and include any documents filed after the
date of such Preliminary Prospectus or Prospectus, as the case
may be, under the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), and incorporated by reference in such
Preliminary Prospectus or Prospectus, as the case may be; any
reference to any amendment to the Registration Statement shall
be deemed to refer to and include any annual report of the
Company filed pursuant to Section 13(a) or 15(d) of the
Exchange Act after the initial effective date of the
Registration Statement that is incorporated by reference in
the Registration Statement; and any reference to the
Prospectus as amended or supplemented shall be deemed to refer
to the Prospectus as amended or supplemented in relation to
the applicable Designated Shares in the form in which it is
filed with the Commission pursuant to Rule 424(b) under the
Securities Act in accordance with Section 5(a) hereof,
including any documents incorporated by reference therein as
of the date of such filing);
(b) The documents incorporated by reference in the
Prospectus, when they became effective or were filed with the
Commission, as the case may be, conformed in all material
respects to the requirements of the Securities Act or the
Exchange Act, as applicable, and the rules and regulations of
the Commission thereunder, and none of such documents
contained an 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; and
any further documents so filed and incorporated by reference
in the Prospectus or any further amendment or supplement
thereto, when such documents become effective or are filed
with the Commission, as the case may be, will conform in all
material respects to the requirements of the Securities Act or
the Exchange Act, as applicable, and the rules and regulations
of the Commission thereunder and will not contain an untrue
statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the
statements therein not misleading; provided, however, that
this representation and warranty shall not apply to any
statements or omissions made in reliance upon and in
conformity with information furnished in writing to the
Company by an Underwriter of Designated Shares through the
Representatives expressly for use in the Prospectus as amended
or supplemented relating to such Shares;
(c) The Registration Statement and the Prospectus
conform, and any further amendments or supplements to the
Registration Statement or the Prospectus will conform, in all
material respects to the requirements of the Securities Act
and the rules and regulations of the Commission thereunder and
do not and will not, as of the applicable effective date as to
the Registration Statement and any amendment thereto and as of
the applicable filing date as to the Prospectus and any
amendment or supplement thereto, contain an untrue statement
of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements
therein not misleading; provided, however, that this
representation and warranty shall not apply to any statements
or omissions made in reliance upon and in conformity with
information furnished in writing to the Company by an
Underwriter of Designated Shares through the Representatives
expressly for use in the Prospectus as amended or supplemented
relating to such Shares;
(d) The only subsidiaries (as defined in the rules and
regulations under the Securities Act) of the Company are the
subsidiaries listed on Annex II to this Agreement (the
"subsidiaries") and certain inactive subsidiaries. Except for
(i) any rights the Company may have relating to its former
interest in Ham Sanitary Landfill, Inc. and MAH Equipment
Corporation, (ii) the stock of the subsidiaries, (iii) an
indirect 50% interest in TMM Transfer Stations and Landfills,
L.T.D., an Israeli limited liability company, which itself
holds a 50% interest in an Israeli limited partnership, (iv) a
minority equity interest in VHG, Inc., which has the exclusive
right to collect waste in a town in Minnesota, (v) long-term
debt securities representing obligations not in excess of
$500,000 in the aggregate, acquired by the Company as part of
the assets of acquired businesses, and (vi) as disclosed in
the Prospectus as amended or supplemented, the Company does
not own, and at any Time of Delivery (as defined herein) will
not own, directly or indirectly, any shares of stock or any
other equity or long-term debt securities of any corporation
or have any equity interest in any firm, partnership, joint
venture, association or other entity;
(e) Subsequent to the date of the latest audited
financial statements included or incorporated by reference in
the Prospectus as amended or supplemented, neither the Company
nor any of its subsidiaries has sustained any loss or
interference with its business from fire, explosion, flood or
other calamity, whether or not covered by insurance, or from
any labor dispute or court or governmental action, order or
decree, which has had a material and adverse affect on the
Company and its subsidiaries taken as a whole, or the
management, business, properties, business prospects,
condition (financial or other) or results of operations of the
Company and its subsidiaries taken as a whole (a "Material
Adverse Effect"), other than as set forth in or contemplated
by the Prospectus as amended or supplemented. Subsequent to
the respective dates as of which information is given in the
Registration Statement and the Prospectus, as it may be
amended or supplemented, there has not been (i) any
declaration or payment of any dividends or other distributions
with respect to the capital stock of the Company, (ii) any
default in the payment of principal or interest on any
material outstanding indebtedness of the Company or any of its
subsidiaries, (iii) any change in the capital stock of the
Company other than pursuant to the exercise of options or
warrants to acquire Shares outstanding on the date of this
Agreement or the conversion into Shares of convertible debt
outstanding on the date of this Agreement, or in the long-term
debt or obligations under capital leases of the Company or any
of its subsidiaries other than as a result of (A) additional
long-term debt or capital lease obligations assumed by the
Company in connection with acquisitions of businesses,
properties or assets, (B) issuances of Shares expressly
permitted by Section 5(d), (C) repayments of outstanding
indebtedness under the Company's existing $190 million
revolving credit facility with a bank syndicate led by The
First National Bank of Boston and the Bank of America,
Illinois (the "Credit Facility"), (D) net additional
borrowings under the Credit Facility not exceeding $40
million, (E) repayments with respect to such capital leases,
(F) scheduled repayments, when due, of other long-term
indebtedness outstanding as set forth or incorporated in the
Prospectus as amended or supplemented not to exceed $25
million in the aggregate or (G) conversion of convertible debt
outstanding on the date of this Agreement, (iv) except as
contemplated by the Prospectus as amended or supplemented, any
material adverse change, or a development known to the Company
involving a prospective material adverse change, in or
affecting the management, business, prospects, condition
(financial or otherwise), stockholders' equity, or results of
operations of the Company and its subsidiaries, taken as a
whole or (v) any material transaction entered into by the
Company or any of its subsidiaries, other than transactions in
the ordinary course of business and changes and transactions
contemplated by the Prospectus as amended or supplemented. To
the best knowledge of the Company, neither the Company nor any
of its subsidiaries has any contingent obligations which are
required to be disclosed and are not disclosed in the
Prospectus as amended or supplemented which would be
reasonably likely to have a Material Adverse Effect;
(f) The Company and each of its subsidiaries have good
and marketable title to all properties and assets described in
the Prospectus as amended or supplemented as owned by them, in
each case free and clear of all liens, charges, encumbrances
or restrictions, except such liens, charges, encumbrances or
restrictions as are described in the Prospectus as amended or
supplemented or are not material to the business of the
Company and its subsidiaries, taken as a whole, or do not and
would not materially interfere with the use made and proposed
to be made of such property by the Company and its
subsidiaries taken as a whole. Each of the Company and its
subsidiaries has valid, subsisting and enforceable leases for
the properties described in the Prospectus as amended or
supplemented as leased by it, with such exceptions as are not
material to the business of the Company and its subsidiaries,
taken as a whole, or do not and would not materially interfere
with the use made and proposed to be made of such properties
by the Company and such subsidiaries taken as a whole;
(g) The Shares have been duly and validly authorized,
and, when the Firm Shares are issued and delivered pursuant to
this Agreement and the Pricing Agreement with respect to such
Designated Shares and, in the case of any Optional Shares,
pursuant to Over-allotment Options (as defined in Section 3
hereof) with respect to such Shares, such Designated Shares
will be duly and validly issued and fully paid and
non-assessable; the Shares conform to the description thereof
contained in the Registration Statement and the Designated
Shares will conform to the description thereof contained in
the Prospectus as amended or supplemented with respect to such
Designated Shares;
(h) The issue and sale of the Shares in the manner
contemplated in this Agreement and the Prospectus as amended
or supplemented, and the compliance by the Company with all of
the provisions of this Agreement, any Pricing Agreement and
each Over-allotment Option, if any, and the consummation of
the transactions herein and therein contemplated will not
conflict with or result in a breach or violation of any of the
terms or provisions of, or constitute a default under, or
result in the acceleration of any obligation under, any
material indenture, mortgage, deed of trust, loan agreement or
other agreement or instrument to which the Company or any of
its subsidiaries is a party or by which the Company or any of
its subsidiaries is bound or to which any of the property or
assets of the Company or any of its subsidiaries is subject,
nor will such action require any waiver, consent or approval
under any such agreement or instrument, nor will such action
result in any violation of the provisions of the Certificate
of Incorporation or By-laws of the Company or any statute or
any order, rule or regulation of any court or governmental
agency or body having jurisdiction over the Company or any of
its subsidiaries or any of their properties; and no consent,
approval, authorization, order, registration or qualification
of or with any such court or governmental agency or body is
required for the issue and sale of the Shares or the
consummation by the Company of the transactions contemplated
by this Agreement, any Pricing Agreement or any Over-allotment
Option except for the registration of the Shares under the
Securities Act, the qualification of the Shares for quotation
on the Nasdaq National Market and such consents, approvals,
authorizations, registrations or qualifications as may be
required under state or foreign securities or Blue Sky laws in
connection with the purchase and distribution of the Shares by
the Underwriters;
(i) The statements set forth in the Prospectus as
amended or supplemented under the caption "Description of
Preferred Stock", "Description of Common Stock" and
"Description of Warrants" insofar as they purport to
constitute a summary of the terms of the capital stock of the
Company, and the documents and laws therein described, and
under the caption "Plan of Distribution" and "Underwriting",
insofar as they purport to describe the provisions of the laws
and documents referred to therein, are accurate in all
material respects and do not omit any material fact;
(j) Other than as set forth or contemplated in the
Prospectus as amended or supplemented or to the extent not
required to be included in or incorporated in the Prospectus
as amended or supplemented: (i) the Company and its
subsidiaries are in compliance with all rules, laws and
regulations relating to the generation, use, discharge,
treatment, storage and disposal of pollutants, hazardous or
toxic substances, land use and protection of health or the
environment ("Environmental Requirements") which are
applicable to their respective businesses, (ii) neither the
Company nor any of its subsidiaries has received any notice
from any governmental authority or third party of an asserted
claim under Environmental Requirements, (iii) no property
which is owned, leased or occupied by the Company or any of
its subsidiaries has been included on a state inventory or
list of contaminated sites which may require investigation
and/or remediation that is similar to the list denominated as
the "National Priority List" maintained by the United States
Environmental Protection Agency pursuant to the Comprehensive
Response, Compensation, and Liability Act of 1980, as amended
(42 U.S.C. Subsection 9601, et seq.). No property which is owned,
leased or occupied by the Company or any of its subsidiaries
has been listed as a Superfund site on such "National Priority
List";
(k) The Company is not, and is not, directly or
indirectly, controlled by, an investment company that is or is
required to be registered under the United States Investment
Company Act of 1940, as amended (the "Investment Company
Act");
(l) None of the holders of outstanding shares of capital
stock of the Company and no other person has or will have any
preemptive or other rights to purchase, subscribe for or
otherwise acquire (i) the Shares or any rights to such Shares
or (ii) as a result of or in connection with the transactions
contemplated by this Agreement, any other capital stock of the
Company or rights thereto; and no holder of securities of the
Company has rights, pursuant to any agreement with the Company
or otherwise, to register such securities under any
registration statement filed with the Commission except as
otherwise disclosed in the Prospectus as amended or
supplemented, except for (A) registration rights provided for
in the Agreement identified as Exhibit 10-12 to the Company's
annual report on Form 10-K for the fiscal year ended December
31, 1995 (the "Form 10-K") and in the registration rights
agreement dated February 13, 1997 with X. Xxxxxxx and X.
Xxxxxx and (B) registration rights, if any, granted by the
Company in connection with any issuance of Shares permitted
pursuant to Section 5(d) (it being understood that the Company
has contractual obligations to maintain the effectiveness of
various effective registration statements that the Company has
heretofore filed pursuant to registration rights agreements
with various holders of its securities);
(m) Each of the directors and executive officers of the
Company has entered into a written agreement with the Company
in the form of Annex III hereto (each such agreement, a
"Lock-up Agreement"), and executed originals of each Lock-up
Agreement have been delivered to you;
(n) The Company and each of its subsidiaries is a
corporation duly organized, validly existing and in good
standing under the laws of its jurisdiction of incorporation.
The Company and each of its subsidiaries has full corporate
power and authority to conduct all the activities conducted by
it, to own or lease all the assets owned or leased by it and
to conduct its business as described in the Prospectus as
amended or supplemented. The Company and each of its
subsidiaries is duly licensed or qualified to do business and
in good standing as a foreign corporation in all jurisdictions
in which the nature of the activities conducted by it or the
character of the assets owned or leased by it makes such
licensing or qualification necessary, except where the failure
to be so licensed or qualified does not have a Material
Adverse Effect. Complete and correct copies of the certificate
of incorporation and of the by-laws of the Company and each of
its subsidiaries and all amendments thereto have been
delivered to, or have been made available for inspection by,
the Representatives, and (except as contemplated by the
Prospectus as amended or supplemented) no changes in the
certificate of incorporation or by-laws of the Company will be
made subsequent to the date hereof and prior to the earlier of
(i) the expiration of the Underwriters' overallotment option,
or (ii) the Second Time of Delivery (as defined below);
(o) The Company has authorized capital stock as set
forth in or contemplated by the Prospectus as amended or
supplemented. The outstanding Shares have been duly
authorized and validly issued and are fully paid and
nonassessable and have been issued in compliance with all
federal and state securities laws, and were not issued in
violation of or subject to any preemptive or similar right.
The Designated Securities, when issued and delivered pursuant
to this Agreement, will be sold free and clear of any pledge,
lien, security interest, encumbrance, claim or equitable
interest and, at each Time of Delivery, will conform to the
description of the Shares contained in the Prospectus as
amended or supplemented. No preemptive right, co-sale right,
registration right, right of first refusal or other similar
right of stockholders (in each case granted or agreed to by
the Company or by which the Company is or may be bound),
exists or will exist at any Time of Delivery with respect to
any of the Shares, other than (A) registration rights provided
for in the Agreement identified as Exhibit 10-12 to the Form
10-K and in the registration rights agreement dated February
13, 1997 with X. Xxxxxxx and X. Xxxxxx and (B) registration
rights, if any, granted by the Company in connection with any
issuance of Shares permitted pursuant to Section 5(d) hereof
(it being understood that the Company has contractual
obligations to maintain the effectiveness of various effective
registration statements that the Company has heretofore filed
pursuant to registration rights agreements with various
holders of its securities). All issued and outstanding shares
of capital stock of each subsidiary of the Company have been
duly authorized and validly issued and are fully paid and
nonassessable, and were not issued in violation of or subject
to any preemptive right or other rights to subscribe for or
purchase shares and, except as disclosed in the Prospectus as
amended or supplemented, are owned of record and beneficially
by the Company free and clear of any pledge, lien, security
interest, encumbrance, claim or equitable interest. The
description of the Company's stock option, stock bonus and
other stock plans or arrangements, and the options or other
rights granted and exercised thereunder, set forth in the
Form 10-K accurately and fairly presents the information
required to be shown with respect to such plans, arrangements,
options and rights. The description of the capital stock of
the Company in the Prospectus as amended or supplemented is,
and at each Time of Delivery will be, complete and accurate in
all respects. Except as set forth in the Prospectus as
amended or supplemented, except for options issued in the
ordinary course after the date hereof under the Company's
existing stock option plans and except as otherwise permitted
by Section 5(d), the Company does not have outstanding, and at
each Time of Delivery will not have outstanding, any options
to purchase, or any rights or warrants to subscribe for, or
any securities or obligations convertible into, or any
contracts or commitments to issue or sell, any Shares, any
shares of capital stock of any subsidiary or any such
warrants, convertible securities or obligations;
(p) The historical financial statements, selected
financial information and related notes and schedules of the
Company in the Prospectus as amended or supplemented present
fairly the consolidated financial condition of the Company and
its subsidiaries as of the respective dates thereof and the
consolidated results of operations and cash flows of the
Company and its subsidiaries for the respective periods
covered thereby, all in conformity with generally accepted
accounting principles applied on a consistent basis throughout
the periods involved, except as otherwise disclosed in the
Prospectus as amended or supplemented. All historical
financial statements and schedules of the Company required to
be included in the Form 10-K under the Exchange Act or the
rules and regulations thereunder are included therein. Ernst
& Young (the "Accountants"), who have reported on the
historical financial statements and schedules, are independent
accountants with respect to the Company as required by the
Exchange Act and the rules and regulations thereunder. No
financial statements or schedules of any of the Company's
subsidiaries are required to be included or incorporated by
reference in the Form 10-K. The condensed pro forma financial
statements and related notes and schedules included or
incorporated by reference in the Prospectus as amended or
supplemented have been properly compiled in all material
respects on the basis of the transactions and assumptions
discussed therein, the pro forma adjustments to the historical
figures have been properly applied to such figures and such
pro forma presentations comply with the applicable accounting
requirements of the Commission (it being understood that such
pro forma financial statements have been prepared on an
aggregate basis);
(q) The Company maintains a system of internal
accounting controls sufficient to provide reasonable assurance
that (i) transactions are executed in accordance with
management's general or specific authorization;
(ii) transactions are recorded as necessary to permit
preparation of financial statements in conformity with
generally accepted accounting principles and to maintain
accountability for assets; (iii) access to assets is permitted
only in accordance with management's general or specific
authorization; and (iv) the recorded accountability for assets
is compared with existing assets at reasonable intervals and
appropriate action is taken with respect to any differences;
(r) Except as set forth in the Prospectus as amended or
supplemented, there are no actions, suits or proceedings
pending or, to the best knowledge of the Company, threatened
against or affecting the Company or any of its subsidiaries or
any of their respective officers in their capacity as such or
of which any property of the Company or any of its
subsidiaries is the subject, before or by any court,
commission, regulatory body, administrative agency or other
governmental body, domestic or foreign, wherein an unfavorable
ruling, decision or finding would have a Material Adverse
Effect;
(s) Except as set forth in the Prospectus as amended or
supplemented, the Company and each of its subsidiaries has (i)
all governmental licenses, franchises, permits, consents,
orders, approvals and other authorizations (collectively,
"permits") required in connection with its business as
contemplated in the Prospectus as amended or supplemented
(except where the failure to have any such permit would not be
reasonably likely to have a Material Adverse Effect),
(ii) fulfilled and performed all its material obligations with
respect to such permits and no event has occurred which
allows, or after notice or lapse of time would allow,
revocation or termination thereof or would result in any other
material impairment of the rights of the holder of any such
permit, except where any such revocation or termination would
not be reasonably likely to have a Material Adverse Effect,
(iii) complied with all laws, regulations and orders
applicable to it or its business, except where such
noncompliance would not be reasonably likely to have a
Material Adverse Effect, and (iv) performed all its material
obligations required to be performed by it, and is not, and at
any Time of Delivery will not be, in default in any material
respect, under any indenture, mortgage, deed of trust, voting
trust agreement, loan agreement, bond, debenture, note
agreement, lease, contract or other agreement or instrument
(collectively, a "contract or other agreement") to which it is
a party or by which its property is bound or affected except
for defaults that would not be reasonably likely to have a
Material Adverse Effect, would not affect the validity of the
Shares or affect the transactions contemplated by this
Agreement. Except as set forth in the Prospectus as amended
or supplemented, to the best knowledge of the Company, no
other party under any contract or other agreement to which the
Company or any of its subsidiaries is a party is in default in
any respect thereunder, except for defaults that would not be
reasonably likely to have a Material Adverse Effect. Neither
the Company nor any of its subsidiaries is in violation of any
provision of its certificate of incorporation or by-laws;
(t) Each contract of the Company or any of its
subsidiaries that is an exhibit to the Form 10-K has been duly
authorized, executed and delivered by the Company or such
subsidiary and constitutes a valid and binding agreement of
the Company or such subsidiary and is enforceable against the
Company or such subsidiary in accordance with the terms
thereof;
(u) No statement, representation, warranty or covenant
made by the Company in this Agreement or made in any
certificate or document required by this Agreement to be
delivered to the Underwriters was or will be, when made,
inaccurate, untrue or incorrect in any material respect;
(v) Neither the Company nor any of its directors,
officers or, to the best knowledge of the Company, controlling
persons has taken, directly or indirectly, any action
intended, or which might reasonably be expected, to cause or
result, under the Exchange Act or otherwise, in, or which has
constituted, stabilization or manipulation of the price of any
security of the Company to facilitate the sale or resale of
the Shares;
(w) Neither the Company nor any of its subsidiaries is
involved in any material labor dispute nor, to the knowledge
of the Company, is any such dispute threatened;
(x) The Company and its subsidiaries own, or are
licensed or otherwise have the full right to use, all material
trademarks and trade names which are used in or necessary for
the conduct of the businesses of the Company and its
subsidiaries, taken as a whole, as described in the Prospectus
as amended or supplemented. The Company has not received any
notice of, and does not otherwise have knowledge of, any
claims that have been asserted by any person to the use of any
such trademarks or trade names or challenging or questioning
the validity or effectiveness of any such trademark or trade
name. The use, in connection with the business and operations
of the Company and its subsidiaries of such trademarks and
trade names does not, to the Company's knowledge, infringe on
the rights of any person;
(y) Neither the Company nor any of its subsidiaries nor,
to the best knowledge of the Company, any employee or agent of
the Company or any subsidiary has made any payment of funds of
the Company or any subsidiary or received or retained any
funds in violation of any law, rule or regulation or of a
character required to be disclosed in the Form 10-K and not so
disclosed;
(z) The Company and each of its subsidiaries has
completed in accordance with applicable laws and tax
accounting rules consistently applied and has filed all
necessary federal, state and foreign income and franchise tax
returns (subject to any applicable extensions for filing
thereof) and has paid all taxes and assessments shown as due
thereon; and the Company has no knowledge of any tax
deficiency which has been asserted or threatened against the
Company or any of its subsidiaries which could have a Material
Adverse Effect. All tax liabilities are adequately provided
for on the books of the Company and its subsidiaries in
accordance with generally accepted accounting principles;
(aa) The accounts receivable of the Company and each of
its subsidiaries at December 31, 1996 arose in the ordinary
course of business and represented bona fide claims against
debtors for goods or services sold or provided to such debtors
in accordance with valid purchase orders or instructions, and
the Company knows of no reasonable basis on which any material
amount of such accounts receivable could be disavowed by the
debtors;
(bb) Neither the Company nor any of its subsidiaries,
since acquired by the Company, or, to the best knowledge of
the Company, any subsidiary prior to being acquired by the
Company, has directly or indirectly, at any time during the
past five years (i) made any unlawful contribution to any
candidate for political office, or failed to disclose fully
any contribution in violation of law, or (ii) made any payment
to any federal, state or foreign governmental official, or
other person charged with similar public or quasi-public
duties, other than payments required or permitted by the laws
of the United States or any jurisdiction thereof or applicable
foreign jurisdictions;
(cc) All documents delivered or to be delivered by the
Company or any of its directors, officers or controlling
persons with respect to the offering contemplated by the
Prospectus as amended or supplemented to the Underwriters or
any state securities law administrator in connection with the
issuance and sale of the Shares were on the dates on which
they were delivered or will be on the dates on which they are
delivered, true, complete and correct in all material respects
(except to the extent that incorrect information was
subsequently corrected prior to the date hereof);
(dd) Any certificate signed by any officer of the
Company and delivered to the Representatives or to counsel for
the Underwriters shall be deemed a representation and warranty
of the Company to the Underwriters as to the matters covered
thereby. Any certificate delivered by the Company to its
counsel for purposes of enabling such counsel to render the
opinions referred to in Section 7 will also be furnished to
the Representatives and counsel for the Underwriters and shall
be deemed to be additional representations and warranties of
the Company to the Underwriters as to the matters covered
thereby;
(ee) The Company believes that, except as otherwise
disclosed in the Prospectus as amended or supplemented, the
Company and its subsidiaries are insured by insurers of
recognized financial responsibility against such losses and
risks and in such amounts as are customary in the businesses
in which they are engaged; and the Company does not have any
reason to believe that it and its subsidiaries will not be
able to renew existing insurance coverage as and when such
coverage expires or to obtain similar coverage from similar
insurers as may be necessary to continue their respective
businesses at a cost that would not have a Material Adverse
Effect, except that no representation and warranty is made
pursuant to this Section 2(ee) with respect to environmental
liability insurance;
(ff) There is no information relating to future capital
expenditures that the Company or any of its subsidiaries will
be required to make with respect to their respective existing
operations in order to comply with Environmental Requirements
which is required to be described in the Prospectus as amended
or supplemented and is not so described;
(gg) There are no outstanding loans, advances (except
normal advances for business expenses in the ordinary course
of business) or guarantees of indebtedness by the Company to
or for the benefit of any of the officers or directors of the
Company or any of the members of the families of any of them
required to be disclosed in the Prospectus as amended or
supplemented which are not so disclosed;
3. Upon the execution of the Pricing Agreement applicable to
any Designated Shares and authorization by the Representatives of
the release of the Firm Shares, the several Underwriters propose to
offer the Firm Shares for sale upon the terms and conditions set
forth in the Prospectus as amended or supplemented.
The Company may specify in the Pricing Agreement applicable to
any Designated Shares that the Company thereby grants to the
Underwriters the right (an "Overallotment Option") to purchase at
their election up to the number of Optional Shares set forth in
such Pricing Agreement, on the terms set forth in the paragraph
above, for the sole purpose of covering over-allotments in the sale
of the Firm Shares. Any such election to purchase Optional Shares
may be exercised by written notice from the Representatives to the
Company, given within a period specified in the Pricing Agreement,
setting forth the aggregate number of Optional Shares to be
purchased and the date on which such Optional Shares are to be
delivered, as determined by the Representatives but in no event
earlier than the First Time of Delivery (as defined in Section 4
hereof) or, unless the Representatives and the Company otherwise
agree in writing, earlier than or later than the respective number
of business days after the date of such notice set forth in such
Pricing Agreement.
The number of Optional Shares to be added to the number of
Firm Shares to be purchased by each Underwriter as set forth in
Schedule I to the Pricing Agreement applicable to such Designated
Shares shall be, in each case, the number of Optional Shares which
the Company has been advised by the Representatives have been
attributed to such Underwriter; provided that, if the Company has
not been so advised, the number of Optional Shares to be so added
shall be, in each case, that proportion of Optional Shares which
the number of Firm Shares to be purchased by such Underwriter under
such Pricing Agreement bears to the aggregate number of Firm Shares
(rounded as the Representatives may determine to the nearest 100
shares). The total number of Designated Shares to be purchased by
all the Underwriters pursuant to such Pricing Agreement shall be
the aggregate number of Firm Shares set forth in Schedule I to such
Pricing Agreement plus the aggregate number of Optional Shares
which the Underwriters elect to purchase.
4. Certificates for the Firm Shares and the Optional Shares
to be purchased by each Underwriter pursuant to the Pricing
Agreement relating thereto, in the form specified in such Pricing
Agreement and in such authorized denominations and registered in
such names as the Representatives may request upon at least
forty-eight hours' prior notice to the Company, shall be delivered
by or on behalf of the Company to the Representatives for the
account of such Underwriter, against payment by such Underwriter or
on its behalf of the purchase price therefor by certified or
official bank check or checks, payable to the order of the Company
in the funds specified in such Pricing Agreement, (i) with respect
to the Firm Shares, all in the manner and at the place and time and
date specified in such Pricing Agreement or at such other place and
time and date as the Representatives and the Company may agree upon
in writing, such time and date being herein called the "First Time
of Delivery" and (ii) with respect to the Optional Shares, if any,
in the manner and at the time and date specified by the
Representatives in the written notice given by the Representatives
of the Underwriters' election to purchase such Optional Shares, or
at such other time and date as the Representatives and the Company
may agree upon in writing, such time and date, if not the First
Time of Delivery, herein called the "Second Time of Delivery".
Each such time and date for delivery is herein called a "Time of
Delivery".
5. The Company agrees with each of the Underwriters of any
Designated Shares:
(a) To prepare the Prospectus as amended and
supplemented in relation to the applicable Designated Shares
in a form approved by the Representatives and to 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
the Pricing Agreement relating to the applicable Designated
Shares or, if applicable, such earlier time as may be required
by Rule 424(b); to make no further amendment or any supplement
to the Registration Statement or Prospectus as amended or
supplemented after the date of the Pricing Agreement relating
to such Shares and prior to any Time of Delivery for such
Shares which shall be reasonably disapproved by the
Representatives for such Shares promptly after reasonable
notice thereof (provided that the foregoing shall not apply to
the filing of the Company's Annual Report on Form 10-K for the
fiscal year ended December 31, 1996 after the First Time of
Delivery) ; to advise the Representatives promptly of any such
amendment or supplement after any Time of Delivery for such
Shares and furnish the Representatives with copies thereof; to
file promptly all reports and any definitive proxy or
information statements required to be filed by the Company
with the Commission pursuant to Sections 13(a), 13(c), 14 or
15(d) of the Exchange Act for so long as the delivery of a
prospectus is required in connection with the offering or sale
of such Shares, and during such same period to advise the
Representatives, promptly after it receives notice thereof, of
the time when any amendment to the Registration Statement has
been filed or becomes effective or any supplement to the
Prospectus or any amended Prospectus has been filed with the
Commission, of the issuance by the Commission of any stop
order or of any order preventing or suspending the use of any
prospectus relating to the Shares, of the suspension of the
qualification of such Shares for offering or sale in any
jurisdiction, of the initiation or threatening of any
proceeding for any such purpose, or of any request by the
Commission for the amending or supplementing of the
Registration Statement or Prospectus or for additional
information; and, in the event of the issuance of any such
stop order or of any such order preventing or suspending the
use of any prospectus relating to the Shares or suspending any
such qualification, promptly to use its best efforts to obtain
the withdrawal of such order;
(b) Prior to 10:00 a.m., New York City time, on the New
York Business Day next succeeding the date of the Pricing
Agreement, to furnish the Underwriters with copies of the
Prospectus as amended or supplemented in New York City in such
quantities as the Representatives may from time to time
reasonably request, and, if the delivery of a prospectus is
required at any time in connection with the offering or sale
of the Shares and if at such time any event shall have
occurred as a result of which the Prospectus as then amended
or supplemented would include an untrue statement of a
material fact or omit to state any material fact necessary in
order to make the statements therein, in the light of the
circumstances under which they were made when such Prospectus
is delivered, not misleading, or, if for any other reason it
shall be necessary during such same period to amend or
supplement the Prospectus or to file under the Exchange Act
any document incorporated by reference in the Prospectus in
order to comply with the Securities Act or the Exchange Act,
to notify the Representatives and upon their request to file
such document and to prepare and furnish without charge to
each Underwriter and to any dealer in securities as many
copies as the Representatives may from time to time reasonably
request of an amended Prospectus or a supplement to the
Prospectus which will correct such statement or omission or
effect such compliance;
(c) To make generally available to its security holders
as soon as practicable, but in any event not later than
eighteen months after the effective date of the Registration
Statement (as defined in Rule 158(c) under the Securities
Act), an earnings statement of the Company and its
subsidiaries (which need not be audited) complying with
Section 11(a) of the Securities Act and the rules and
regulations of the Commission thereunder (including, at the
option of the Company, Rule 158);
(d) (i) During the period beginning from the date of the
Pricing Agreement for such Designated Shares and continuing to
and including the date 90 days after the date of such Pricing
Agreement, not to offer, sell, contract to sell or otherwise
dispose of, or file a registration statement (except for a
registration statement relating to the securities permitted to
be issued pursuant to clauses (x), (y) or (z) below) with
respect to, any Shares, any securities of the Company
substantially similar to the Shares or any securities of the
Company convertible into or exchangeable or exercisable for
Shares or any such substantially similar securities (any such
securities, a "Covered Security"), other than (x) pursuant to
employee stock option plans existing as of the date hereof (as
such plans may hereafter be amended with shareholder approval)
or in connection with other employee incentive compensation
arrangements consistent with past practice, or upon the
exercise of options heretofore or hereafter granted pursuant
to such plans or arrangements, (y) upon the conversion of
convertible securities or exercise of warrants or options, in
each case as outstanding on the date hereof, or (z) Shares or
Covered Securities issued as consideration for acquisitions of
businesses, properties or assets; and (ii) that it will use
reasonable efforts to cause each person who has entered into
a Lock-up Agreement to comply therewith, will not grant any
waivers or consents to non-compliance therewith and will
enforce its rights under each such agreement, in each case
unless and to the extent that it shall have obtained the prior
written consent of Xxxxxxx, Xxxxx & Co.; and
(e) During a period of five years from the date of the
Prospectus, as amended or supplemented with respect to the
Designated Shares, to furnish to you, upon request, copies of
all reports mailed to stockholders, together with the exhibits
thereto, and copies of any reports filed with the Commission
or any national securities exchange on which any class of
securities of the Company is listed, together with the
exhibits thereto.
(f) If the Company elects to rely upon Rule 462(b), the
Company shall file a Rule 462(b) Registration Statement with
the Commission in compliance with Rule 462(b) by 10:00 P.M.,
Washington, D.C. time, on the date of the Pricing Agreement,
and the Company shall at the time of filing either pay to the
Commission the filing fee for the Rule 462(b) Registration
Statement or give irrevocable instructions for the payment of
such fee pursuant to Rule 111(b) under the Securities Act.
6. The Company covenants and agrees with the several
Underwriters that the Company will pay or cause to be paid the
following: (i) the fees, disbursements and expenses of the
Company's counsel and accountants in connection with the
registration of the Shares under the Securities Act and all other
expenses in connection with the preparation, printing and filing of
the Registration Statement, any Preliminary Prospectus and the
Prospectus and amendments and supplements thereto and the mailing
and delivering of copies thereof to the Underwriters and dealers;
(ii) the cost of printing or producing (not including fees of
counsel to the Underwriters) any Agreement among Underwriters, this
Agreement, any Pricing Agreement, any Blue Sky Memorandum, closing
documents (including compilations thereof) and any other documents
in connection with the offering, purchase, sale and delivery of the
Shares; (iii) the cost of preparing certificates for the Shares;
(iv) the cost and charges of any transfer agent or registrar or
dividend disbursing agent; and (v) all other costs and expenses
incident to the performance of its obligations hereunder and under
any Over-allotment Options which are not otherwise specifically
provided for in this Section. It is understood, however, that,
except as provided in this Section, and Sections 8 and 11 hereof,
the Underwriters will pay all of their own costs and expenses,
including the fees of their counsel, transfer taxes on resale of
any of the Shares by them, and any advertising expenses connected
with any offers they may make.
7. The obligations of the Underwriters of any Designated
Shares under the Pricing Agreement relating to such Designated
Shares shall be subject, in the discretion of the Representatives,
to the condition that all representations and warranties and other
statements of the Company in or incorporated by reference in the
Pricing Agreement relating to such Designated Shares are, at and as
of each Time of Delivery for such Designated Shares, true and
correct, the condition that the Company shall have performed all of
its obligations hereunder theretofore to be performed, and the
following additional conditions:
(a) The Prospectus as amended or supplemented in
relation to such Designated Shares shall have been filed with
the Commission pursuant to Rule 424(b) within the applicable
time period prescribed for such filing by the rules and
regulations under the Securities Act and in accordance with
Section 5(a) hereof; if the Company has elected to rely upon
Rule 462(b), the Rule 462(b) Registration Statement shall have
become effective by 10:00 P.M., Washington, D.C. time, on the
date of the Pricing Agreement; no stop order suspending the
effectiveness of the Registration Statement or any part
thereof shall have been issued and no proceeding for that
purpose shall have been initiated or threatened by the
Commission; and all requests for additional information on the
part of the Commission shall have been complied with to the
Representatives' reasonable satisfaction;
(b) Xxxxxxxx & Xxxxxxxx, counsel for the Underwriters
shall have furnished to the Representatives such opinion or
opinions, dated each Time of Delivery for such Designated
Shares, with respect to the incorporation of the Company, the
Designated Shares, this Agreement and the Pricing Agreement
and the Prospectus as amended or supplemented as well as such
other related matters as the Representatives may reasonably
request, and such counsel shall have received such papers and
information as they may reasonably request to enable them to
pass upon such matters;
(c) Xxxxxxxxxx & Xxxxxx, counsel for the Company, shall
have furnished to you their written opinion or opinions, dated
such Time of Delivery, in form and substance satisfactory to
you, to the effect set forth in Annex V;
(d) Proskauer Xxxx Xxxxx & Xxxxxxxxxx LLP, special
environmental counsel to the Company, shall have furnished to
you their written opinion, dated such Time of Delivery, in
form and substance satisfactory to you, to the effect set
forth in Annex VI;
(e) On the date of the Pricing Agreement for such
Designated Shares and at each Time of Delivery for such
Designated Shares, the independent accountants of the Company
who have certified the financial statements of the Company and
its subsidiaries included or incorporated by reference in the
Registration Statement shall have furnished to the
Representatives a letter, dated the effective date of the
Registration Statement or the date of the most recent report
filed with the Commission containing financial statements and
incorporated by reference in the Registration Statement, if
the date of such report is later than such effective date, and
a letter dated such Time of Delivery, respectively, to the
effect set forth in Annex V hereto, and with respect to such
letter dated such Time of Delivery, as to such other matters
as the Representatives may reasonably request and in form and
substance satisfactory to the Representatives;
(f) Since the respective dates as of which information
is given in the Prospectus as amended or supplemented,
(i) there shall not have been an adverse change in the general
affairs, business, business prospects, properties, management,
condition (financial or otherwise) or results of operations of
the Company and its subsidiaries, taken as a whole, whether or
not arising from transactions in the ordinary course of
business, in each case other than as set forth in or
contemplated by the Prospectus as amended or supplemented,
(ii) there shall not have been any change in the capital stock
of the Company other than pursuant to the exercise of options
or warrants to acquire Shares outstanding on the date of this
Agreement or the conversion into Shares of convertible debt
outstanding on the date of this Agreement or in the long-term
debt, or obligations under capital leases, of the Company or
any of its subsidiaries other than as a result of (A)
additional long-term debt or capital lease obligations assumed
by the Company in connection with acquisitions of businesses,
properties or assets, (B) issuances of Shares expressly
permitted by Section 5(d) hereof, (C) repayments of
outstanding indebtedness under the Credit Facility, (D)
additional net borrowings under the Credit Facility not
exceeding $40 million, (E) repayments with respect to such
capital leases, (F) scheduled repayments, when due, of other
long-term indebtedness outstanding as set forth in the
Prospectus as amended or supplemented, not to exceed
$25 million in the aggregate, or (G) conversion of convertible
debt outstanding on the date of this Agreement, and (iii)
neither the Company nor any of its subsidiaries shall have
sustained any loss or interference with its business or
properties from fire, explosion, flood or other casualty,
whether or not covered by insurance, or from any labor dispute
or any court or legislative or other governmental action,
order or decree, which is not set forth in the Prospectus as
amended or supplemented, if in the judgment of the
Representatives any such development makes it impracticable or
inadvisable to consummate the sale and delivery of the Shares
by the Underwriters on the terms and in the manner
contemplated by the Prospectus as amended or supplemented;
(g) Since the respective dates as of which information
is given in the Prospectus as amended or supplemented there
shall have been no litigation or other proceeding instituted
against the Company or any of its subsidiaries or any of their
respective officers or directors in their capacities as such,
before or by any court, commission, regulatory body,
administrative agency or other governmental body, domestic or
foreign, in which litigation or proceeding an unfavorable
ruling, decision or finding would have a Material Adverse
Effect;
(h) On or after the date of the Pricing Agreement
relating to the Designated Shares, (i) no downgrading shall
have occurred in the rating accorded the Company's debt
securities by any "nationally recognized statistical rating
organization," as that term is defined by the Commission for
purposes of Rule 436(g)(2) under the Securities Act and
(ii) no such organization shall have publicly announced that
it has under surveillance or review, with possible negative
implications, its rating of any of the Company's debt
securities;
(i) On or after the date of the Pricing Agreement
relating to the Designated Shares, there shall not have
occurred any of the following: (i) a suspension or material
limitation in trading in securities generally on the New York
Stock Exchange or on the Nasdaq National Market; (ii) a
suspension or material limitation in trading in the Company's
securities on the Nasdaq National Market; (iii) a general
moratorium on commercial banking activities in New York
declared by either Federal or New York State authorities;
(iv) the outbreak or the escalation of hostilities involving
the United States or the declaration by the United States, on
or after the date hereof, of a national emergency or war; or
(v) the occurrence of any change in national or international
financial, political or economic conditions or currency
exchange rates or controls, if the effect of any event
specified in clause (iv) or (v) above, in the judgment of the
Representatives, makes it impracticable or inadvisable to
proceed with the offering or the delivery of the Shares being
issued at such Time of Delivery on the terms and in the manner
contemplated in the Prospectus as amended or supplemented;
(j) There shall have occurred no breach of any Lock-up
Agreement;
(k) The Shares at each Time of Delivery shall have been
duly listed for quotation on the Nasdaq National Market;
(l) The Company shall have complied with the provisions
of Section 5(b) hereof with respect to the furnishing of
prospectuses on the New York Business Day next succeeding the
date of the Pricing Agreement; and
(m) The Company shall have furnished or caused to be
furnished to the Representatives at each Time of Delivery for
the Designated Shares certificates of officers of the Company
satisfactory to the Representatives as to the accuracy of the
representations and warranties of the Company herein at and as
of such Time of Delivery, as to the performance by the Company
of all of its obligations hereunder to be performed at or
prior to such Time of Delivery, as to the matters set forth in
subsections (a), (f) and (g) of this Section and as to such
other matters as the Representatives may reasonably request.
8. (a) The Company will indemnify and hold harmless each
Underwriter against any losses, claims, damages or liabilities,
joint or several, to which such Underwriter may become subject,
under the Securities Act or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon an untrue statement or alleged
untrue statement of a material fact contained in any Preliminary
Prospectus, any preliminary prospectus supplement, the Registration
Statement, the Prospectus as amended or supplemented and any other
prospectus relating to the Shares, or any amendment or supplement
thereto, or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading,
and will reimburse each Underwriter for any legal or other expenses
reasonably incurred by such Underwriter in connection with
investigating or defending any such action or claim as such
expenses are incurred; provided, however, that the Company shall
not be liable in any such case to the extent that any such loss,
claim, damage or liability arises out of or is based upon an untrue
statement or alleged untrue statement or omission or alleged
omission made in any Preliminary Prospectus, any preliminary
prospectus supplement, the Registration Statement, the Prospectus
as amended or supplemented and any other prospectus relating to the
Shares, or any such amendment or supplement, in reliance upon and
in conformity with written information furnished to the Company by
any Underwriter of Designated Shares through the Representatives
expressly for use in the Prospectus as amended or supplemented
relating to such Shares.
(b) Each Underwriter will indemnify and hold harmless the
Company against any losses, claims, damages or liabilities to which
the Company may become subject, under the Securities Act or
otherwise, insofar as such losses, claims, damages or liabilities
(or actions in respect thereof) arise out of or are based upon an
untrue statement or alleged untrue statement of a material fact
contained in any Preliminary Prospectus, any preliminary prospectus
supplement, the Registration Statement, the Prospectus as amended
or supplemented and any other prospectus relating to the Shares, or
any amendment or supplement thereto, or arise out of or are based
upon the omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the
statements therein not misleading, in each case to the extent, but
only to the extent, that such untrue statement or alleged untrue
statement or omission or alleged omission was made in any
Preliminary Prospectus, any preliminary prospectus supplement, the
Registration Statement, the Prospectus as amended or supplemented
and any other prospectus relating to the Shares, or any such
amendment or supplement, in reliance upon and in conformity with
written information furnished to the Company by such Underwriter
through the Representatives expressly for use therein; and will
reimburse the Company for any legal or other expenses reasonably
incurred by the Company in connection with investigating or
defending any such action or claim as such expenses are incurred.
(c) Promptly after receipt by an indemnified party under
subsection (a) or (b) above of notice of the commencement of any
action, such indemnified party shall, if a claim in respect thereof
is to be made against the indemnifying party under such subsection,
notify the indemnifying party in writing of the commencement
thereof; but the omission so to notify the indemnifying party shall
not relieve it from any liability which it may have to any
indemnified party otherwise than under such subsection. In case
any such action 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 therein
and, to the extent that it shall wish, jointly with any other
indemnifying party similarly notified, to assume the defense
thereof, with counsel satisfactory to such indemnified party (who
shall not, except with the consent of the indemnified party, be
counsel to the indemnifying party), and, after notice from the
indemnifying party to such indemnified party of its election so to
assume the defense thereof, the indemnifying party shall not be
liable to such indemnified party under such subsection for any
legal expenses of other counsel or any other expenses, in each case
subsequently incurred by such indemnified party, in connection with
the defense thereof other than reasonable costs of investigation.
No indemnifying party shall, without the written consent of the
indemnified party, effect the settlement or compromise of, or
consent to the entry of any judgment with respect to, any pending
or threatened action or claim in respect of which indemnification
or contribution may be sought hereunder (whether or not the
indemnified party is an actual or potential party to such action or
claim) unless such settlement, compromise or judgment (i) includes
an unconditional release of the indemnified party from all
liability arising out of such action or claim and (ii) does not
include any statement as to or an admission of fault, culpability
or a failure to act, by or on behalf of any indemnified party. An
indemnifying party will not be liable for any settlement of any
action or claim effected without its written consent (which consent
shall not be unreasonably withheld).
(d) If the indemnification provided for in this Section 8 is
unavailable to or insufficient to hold harmless an indemnified
party under subsection (a) or (b) above in respect of any losses,
claims, damages or liabilities (or actions in respect thereof)
referred to therein, then each indemnifying party shall contribute
to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages or liabilities (or actions in
respect thereof) in such proportion as is appropriate to reflect
the relative benefits received by the Company on the one hand and
the Underwriters of the Designated Shares on the other from the
offering of the Designated Shares to which such loss, claim, damage
or liability (or action in respect thereof) relates. If, however,
the allocation provided by the immediately preceding sentence is
not permitted by applicable law or if the indemnified party failed
to give the notice required under subsection (c) above, then each
indemnifying party shall contribute to such amount paid or payable
by such indemnified party in such proportion as is appropriate to
reflect not only such relative benefits but also the relative fault
of the Company on the one hand and the Underwriters of the
Designated Shares on the other in connection with the statements or
omissions which resulted in such losses, claims, damages or
liabilities (or actions in respect thereof), as well as any other
relevant equitable considerations. The relative benefits received
by the Company on the one hand and such Underwriters on the other
shall be deemed to be in the same proportion as the total net
proceeds from such offering (before deducting expenses) received by
the Company bear to the total underwriting discounts and
commissions received by such Underwriters. The relative fault
shall be determined by reference to, among other things, whether
the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to
information supplied by the Company on the one hand or such
Underwriters on the other and the parties' relative intent,
knowledge, access to information and opportunity to correct or
prevent such statement or omission. The Company and the
Underwriters agree that it would not be just and equitable if
contribution pursuant to this subsection (d) 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 in this subsection (d). The amount paid or payable by an
indemnified party as a result of the losses, claims, damages or
liabilities (or actions in respect thereof) referred to above in
this subsection (d) shall be deemed to include any legal or other
expenses reasonably incurred by such indemnified party in
connection with investigating or defending any such action or
claim. Notwithstanding the provisions of this subsection (d), no
Underwriter shall be required to contribute any amount in excess of
the amount by which the total price at which the applicable
Designated Shares underwritten by it and distributed to the public
were offered to the public exceeds the amount of any damages which
such Underwriter has otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Securities Act) shall be
entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The obligations of the Underwriters
of Designated Shares in this subsection (d) to contribute are
several in proportion to their respective underwriting obligations
with respect to such Shares and not joint.
(e) The obligations of the Company under this Section 8 shall
be in addition to any liability which the Company may otherwise
have and shall extend, upon the same terms and conditions, to each
person, if any, who controls any Underwriter within the meaning of
the Securities Act; and the obligations of the Underwriters under
this Section 8 shall be in addition to any liability which the
respective Underwriters may otherwise have and shall extend, upon
the same terms and conditions, to each officer and director of the
Company and to each person, if any, who controls the Company within
the meaning of the Securities Act.
9. (a) If any Underwriter shall default in its obligation
to purchase the Firm Shares or Optional Shares which it has agreed
to purchase under the Pricing Agreement relating to such Shares,
the Representatives may in their discretion arrange for themselves
or another party or other parties to purchase such Shares on the
terms contained herein. If within thirty-six hours after such
default by any Underwriter the Representatives do not arrange for
the purchase of such Firm Shares or Optional Shares, as the case
may be, then the Company shall be entitled to a further period of
thirty-six hours within which to procure another party or other
parties satisfactory to the Representatives to purchase such Shares
on such terms. In the event that, within the respective prescribed
period, the Representatives notify the Company that they have so
arranged for the purchase of such Shares, or the Company notifies
the Representatives that it has so arranged for the purchase of
such Shares, the Representatives or the Company shall have the
right to postpone a Time of Delivery for such Shares for a period
of not more than seven days, in order to effect whatever changes
may thereby be made necessary in the Registration Statement or the
Prospectus as amended or supplemented, or in any other documents or
arrangements, and the Company agrees to file promptly any
amendments or supplements to the Registration Statement or the
Prospectus which in the reasonable opinion of the Representatives
may thereby be made necessary. The term "Underwriter" as used in
this Agreement shall include any person substituted under this
Section with like effect as if such person had originally been a
party to the Pricing Agreement with respect to such Designated
Shares.
(b) If, after giving effect to any arrangements for the
purchase of the Firm Shares or Optional Shares, as the case may be,
of a defaulting Underwriter or Underwriters by the Representatives
and the Company as provided in subsection (a) above, the aggregate
number of such Shares which remains unpurchased does not exceed
one-eleventh of the aggregate number of the Firm Shares or Optional
Shares, as the case may be, to be purchased at the respective Time
of Delivery, then the Company shall have the right to require each
non-defaulting Underwriter to purchase the number of Firm Shares or
Optional Shares, as the case may be, which such Underwriter agreed
to purchase under the Pricing Agreement relating to such Designated
Shares and, in addition, to require each non-defaulting Underwriter
to purchase its pro rata share (based on the number of Firm Shares
or Optional Shares, as the case may be, which such Underwriter
agreed to purchase under such Pricing Agreement) of the Firm Shares
or Optional Shares, as the case may be, of such defaulting
Underwriter or Underwriters for which such arrangements have not
been made; but nothing herein shall relieve a defaulting
Underwriter from liability for its default.
(c) If, after giving effect to any arrangements for the
purchase of the Firm Shares or Optional Shares, as the case may be,
of a defaulting Underwriter or Underwriters by the Representatives
and the Company as provided in subsection (a) above, the aggregate
number of Firm Shares or Optional Shares, as the case may be, which
remains unpurchased exceeds one-eleventh of the aggregate number of
the Firm Shares or Optional Shares, as the case may be, to be
purchased at the respective Time of Delivery, as referred to in
subsection (b) above, or if the Company shall not exercise the
right described in subsection (b) above to require non-defaulting
Underwriters to purchase Firm Shares or Optional Shares, as the
case may be, of a defaulting Underwriter or Underwriters, then the
Pricing Agreement relating to such Firm Shares or the
Over-allotment Option relating to such Optional Shares, as the case
may be, shall thereupon terminate, without liability on the part of
any non-defaulting Underwriter or the Company, except for the
expenses to be borne by the Company and the Underwriters as
provided in Section 6 hereof and the indemnity and contribution
agreements in Section 8 hereof; but nothing herein shall relieve a
defaulting Underwriter from liability for its default.
10. The respective indemnities, agreements, representations,
warranties and other statements of the Company and the several
Underwriters, as set forth in this Agreement or made by or on
behalf of them, respectively, pursuant to this Agreement, shall
remain in full force and effect, regardless of any investigation
(or any statement as to the results thereof) made by or on behalf
of any Underwriter or any controlling person of any Underwriter, or
the Company, or any officer or director or controlling person of
the Company, and shall survive delivery of and payment for the
Shares.
11. If any Pricing Agreement or Over-allotment Option shall
be terminated pursuant to Section 9 hereof, the Company shall not
then be under any liability to any Underwriter with respect to the
Firm Shares or Optional Shares with respect to which such Pricing
Agreement shall have been terminated except as provided in Sections
6 and 8 hereof; but, if any Pricing Agreement or Over-allotment
Option shall be terminated by the Company pursuant to any other
provision hereof or if the transactions contemplated hereby are not
consummated by reason of any failure, refusal or inability of the
Company to perform its obligations hereunder, the Company will
reimburse the Underwriters through the Representatives for all
out-of-pocket expenses approved in writing by the Representatives,
including fees and disbursements of counsel, reasonably incurred by
the Underwriters in making preparations for the purchase, sale and
delivery of such Designated Shares, but the Company shall then be
under no further liability to any Underwriter with respect to such
Designated Shares except as provided in Sections 6 and 8 hereof.
12. In all dealings hereunder, the Representatives of the
Underwriters of Designated Shares shall act on behalf of each of
such Underwriters, and the parties hereto shall be entitled to act
and rely upon any statement, request, notice or agreement on behalf
of any Underwriter made or given by such Representatives jointly or
by such of the Representatives, if any, as may be designated for
such purpose in the Pricing Agreement.
All statements, requests, notices and agreements hereunder
shall be in writing, and if to the Underwriters shall be delivered
or sent by mail, telex or facsimile transmission to the address of
the Representatives as set forth in the Pricing Agreement; and if
to the Company shall be delivered or sent by mail, telex or
facsimile transmission to United Waste Systems, Inc., Four
Xxxxxxxxx Xxxxxx Xxxx, Xxxxxxxxx, Xxxxxxxxxxx 00000, Attention:
Xxxxxxx X. Xxxxxx, facsimile transmission no. (000) 000-0000, with
copies to Xxxxx Xxxxxx, Esq., 000 Xxxxx Xxxxxx, 00xx Xxxxx, Xxx
Xxxx, Xxx Xxxx 00000, facsimile transmission no. (000) 000-0000,
and Xxxxxxxxxx & Xxxxxx, 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx
Xxxx 00000, Attention: Xxxxxx Xxxxxxxxxx, Esq., facsimile
transmission no. (000) 000-0000; provided, however, that any notice
to an Underwriter pursuant to Section 8(c) hereof shall be
delivered or sent by mail, telex or facsimile transmission to such
Underwriter at its address set forth in its Underwriters'
Questionnaire, or telex constituting such Questionnaire, which
address will be supplied to the Company by the Representatives upon
request. Any such statements, requests, notices or agreements
shall take effect upon receipt thereof.
13. This Agreement and each Pricing Agreement shall be
binding upon, and inure solely to the benefit of, the Underwriters,
the Company and, to the extent provided in Sections 8 and 10
hereof, the officers and directors of the Company and each person
who controls the Company or any Underwriter, and their respective
heirs, executors, administrators, successors and assigns, and no
other person shall acquire or have any right under or by virtue of
this Agreement or any such Pricing Agreement. No purchaser of any
of the Shares from any Underwriter shall be deemed a successor or
assign by reason merely of such purchase.
14. Time shall be of the essence of each Pricing Agreement.
As used herein, the term "business day" shall mean any day when the
Commission's office in Washington, D.C. is open for business.
15. This Agreement and each Pricing Agreement shall be
governed by and construed in accordance with the laws of the State
of New York.
16. This Agreement and each Pricing Agreement may be executed
by any one or more of the parties hereto and thereto in any number
of counterparts, each of which shall be deemed to be an original,
but all such respective counterparts shall together constitute one
and the same instrument.
Very truly yours,
United Waste Systems,
Inc.
By: /s/ Xxxxxxx X. Xxxxx
Name: Xxxxxxx X. Xxxxx
Title: Chief Financial
Officer
ANNEX I
Pricing Agreement
[Name and Address of the Underwriters]
, 19..
Ladies and Gentlemen:
United Waste Systems, Inc., a Delaware corporation (the
"Company"), proposes, subject to the terms and conditions stated
herein and in the Underwriting Agreement, dated March 3, 1997 (the
"Underwriting Agreement"), to issue and sell to the Underwriters
named in Schedule I hereto (the "Underwriters") the Shares
specified in Schedule II hereto (the "Designated Shares" consisting
of Firm Shares and any Optional Shares the Underwriters may elect
to purchase). Each of the provisions of the Underwriting Agreement
is incorporated herein by reference in its entirety, and shall be
deemed to be a part of this Agreement to the same extent as if such
provisions had been set forth in full herein; and each of the
representations and warranties set forth therein shall be deemed to
have been made at and as of the date of this Pricing Agreement,
except that each representation and warranty which refers to the
Prospectus in Section 2 of the Underwriting Agreement shall be
deemed to be a representation or warranty as of the date of the
Underwriting Agreement in relation to the Prospectus (as therein
defined), and also a representation and warranty as of the date of
this Pricing Agreement in relation to the Prospectus as amended or
supplemented relating to the Designated Shares which are the
subject of this Pricing Agreement. Each reference to the
Representatives herein and in the provisions of the Underwriting
Agreement so incorporated by reference shall be deemed to refer to
you. Unless otherwise defined herein, terms defined in the
Underwriting Agreement are used herein as therein defined. The
Representatives designated to act on behalf of the Representatives
and on behalf of each of the Underwriters of the Designated Shares
pursuant to Section 12 of the Underwriting Agreement and the
address of the Representatives referred to in such Section 12 are
set forth in Schedule II hereto.
An amendment to the Registration Statement, or a supplement to
the Prospectus, as the case may be, relating to the Designated
Shares, in the form heretofore delivered to you is now proposed to
be filed with the Commission.
Subject to the terms and conditions set forth herein and in
the Underwriting Agreement incorporated herein by reference, (a)
the Company agrees to issue and sell to each of the Underwriters,
and each of the Underwriters agrees, severally and not jointly, to
purchase from the Company, at the time and place and at the
purchase price to the Underwriters set forth in Schedule II hereto,
the number of Firm Shares set forth opposite the name of such
Underwriter in Schedule I hereto and (b) in the event and to the
extent that the Underwriters shall exercise the election to
purchase Optional Shares, as provided below, the Company agrees to
issue and sell to each of the Underwriters, and each of the
Underwriters agrees, severally and not jointly, to purchase from
the Company at the purchase price to the Underwriters set forth in
Schedule II hereto that portion of the number of Optional Shares as
to which such election shall have been exercised.
The Company hereby grants to each of the Underwriters the
right to purchase at their election up to the number of Optional
Shares set forth opposite the name of such Underwriter in Schedule
I hereto on the terms referred to in the paragraph above for the
sole purpose of covering over-allotments in the sale of the Firm
Shares. Any such election to purchase Optional Shares may be
exercised by written notice from the Representatives to the Company
given within a period of 30 calendar days after the date of this
Pricing Agreement, setting forth the aggregate number of Optional
Shares to be purchased and the date on which such Optional Shares
are to be delivered, as determined by the Representatives, but in
no event earlier than the First Time of Delivery or, unless the
Representatives and the Company otherwise agree in writing, no
earlier than one or later than ten business days after the date of
such notice.
If the foregoing is in accordance with your understanding,
please sign and return to us [one for the Company and one for each
of the Representatives plus one for each counsel] counterparts
hereof, and upon acceptance hereof by you, on behalf of each of the
Underwriters, this letter and such acceptance hereof, including the
provisions of the Underwriting Agreement incorporated herein by
reference, shall constitute a binding agreement between each of the
Underwriters and the Company. It is understood that your
acceptance of this letter on behalf of each of the Underwriters is
or will be pursuant to the authority set forth in a form of
Agreement among Underwriters, the form of which shall be submitted
to the Company for examination, upon request, but without warranty
on the part of the Representatives as to the authority of the
signers thereof.
Very truly yours,
United Waste Systems, Inc.
By:
Name:
Title:
Accepted as of the date hereof:
[Names of Representatives]
By: . . . . . . . . . . . . . . .
Name:
Title:
On behalf of each of the Underwriters
SCHEDULE I
Maximum Number
of Optional
Number of Shares Which
Firm Shares May be
Underwriter to be Purchased Purchased
[Names of Representatives]
[Names of other Underwriters]
Total
SCHEDULE II
Title of Designated Shares:
Number of Designated Shares:
Number of Firm Shares:
Maximum Number of Optional Shares:
Initial Offering Price to Public:
[$........ per Share] [Formula]
Purchase Price by Underwriters:
[$........ per Share] [Formula]
[Commission Payable to Underwriters:
$........ per Share in [specify same form of funds as in Specified
Funds below]]
Form of Designated Shares:
Definitive form, to be made available for checking [and packaging]
at least twenty-four hours prior to the Time of Delivery at the
office of [The Depository Trust Company or its designated
custodian] [the Representatives]
Specified Funds for Payment of Purchase Price:
Wire transfer of same day funds
Time of Delivery:
......... a.m. (New York City time), .................., 19..
Closing Location:
Xxxxxxxx & Xxxxxxxx
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Names and Addresses of Representatives:
Designated Representatives:
Address for Notices, etc.:
[Other Terms] :
ANNEX II
Subsidiaries
Those corporations which are indented represent subsidiaries
of the corporation under which they are indented.
Names State of Incorporation
Able Sanitation, Inc. Michigan
United Waste Sytems of
Central Michigan, Inc. Michigan
A-1 Transfer, Incorporated Colorado
Xxxxx Park Investments, Inc. Colorado
M & S Investments, Inc. Colorado
Xxxxxxxx-Cottonwood Disposal
Services, Inc. California
C & L Disposal Co., Inc. California
Colusa Solid Waste & Recycling, Inc. California
Corning Disposal Service, Inc. California
Nevada City Garbage Service, Inc. California
Xxxxxxx-Xxxx Company, Inc. California
Great Northern Sanitary, Inc. California
S & L Total Waste Systems, Inc. Nevada
Xxxxxx Brothers Disposal, Inc. New York
Cannel Marina Corporation California
Xxxx Road Landfill Corporation California
Jolon Road Landfill Corporation California
Cal Sanitation Services, Inc. California
Portable Site Services, Inc. California
CDF Consolidated Corporation Illinois
Central Sanitary Landfill, Inc. Michigan
Cheshire Sanitation, Inc. New Hampshire
Colorado Waste Services, Inc. Colorado
Commercial Disposal Co., Inc. Massachusetts
Connecticut Valley Sanitary Waste
Disposal, Inc. Massachusetts
DSI of Shawano County, Inc. Wisconsin
Dafter Sanitary Landfill, Inc. Michigan
Dakota Resource Recovery, Inc. Minnesota
Xxxxxxxx Sanitary Service, Inc. North Dakota
Xxxxxx Xxxxx Landfill, Inc. Kentucky
G&W Disposal, Inc. Kentucky
G&W Recycling, Inc. Kentucky
Glen's Sanitary Landfill, Inc. Michigan
HCS Sanitation, Inc. North Dakota
Harland's Sanitary Landfill, Inc. Michigan
Holyoke Sanitary Landfill, Inc. Massachusetts
Xxxxxx Sanitation, Inc. North Dakota
Jones Sanitation, Inc. Kentucky
K and W Landfill, Inc. Michigan
Xxxxx Run Sanitation, Inc. Pennsylvania
Ken's Pickup Service, Inc. Michigan
Xxxxxxx Services, Inc. Minnesota
Xxxxxxx Material Recovery
Facility, Inc. Minnesota
Landfill Systems, Inc. New Mexico
Landfill Hauling Systems, Inc. New Mexico
XxXxxxxx Landfill, Inc. North Dakota
Midwest Sanitation Service, Inc. North Dakota
Northern A-1 Sanitation Services, Inc. Michigan
Omega One Waste, Inc. Arizona
PRTR, Inc. Massachusetts
Xxxxx Disposal Services Corporation Colorado
Pak'M Roll-Off Services, Inc. Colorado
Peninsula Sanitation, Inc. Michigan
RCI Clinton, Inc. Massachusetts
RCI Xxxxxx, Inc. Massachusetts
Re-Cy-Co, Inc. Minnesota
Resource Control Composting, Inc. Massachusetts
Resource Control, Inc. Massachusetts
UWS Barre, Inc. Massachusetts
Rhinelander Disposal Service, Inc. Wisconsin
Roska Route, Inc. Michigan
Saline County Landfill, Inc. Illinois
Salinas Disposal Service, Inc. California
Rural Dispos-All Service, Inc. California
Xxxxx Road Disposal Site, Inc. California
Xxxxxxx Canyon Road Disposal
Site, Inc. California
Madison Lane Properties, Inc. California
Standard Methods, Inc. Massachusetts
Suburban Sanitation Company Kentucky
Tri-County Land Corp. Kentucky
UWS Acquisition, Inc. Massachusetts
UWS Surety, Inc. Vermont
UWS of Rhode Island, Inc. Rhode Island
United Landfill, Inc. West Virginia
United Waste Systems, Inc. Minnesota
United Waste Systems, Inc. Arizona
Xxxxx'x Rural Sanitation, Inc. Colorado
Xxxxxxxxx Trash Service, Inc. Colorado
United Waste Systems (Israel), Inc. Delaware
United Waste Systems Leasing, Inc. Michigan
United Waste Systems New Mexico, Inc. California
United Waste Systems of California, Inc.California
United Waste Systems of Corbin, Inc. Kentucky
Tri-Country Sanitary Landfill, Inc.Kentucky
United Waste Systems of Xxxxxxx, Inc. Massachusetts
United Waste Systems of Grand
Rapids, Inc. Michigan
United Waste Systems of Iowa, Inc. Iowa
Central Disposal Systems, Inc. Iowa
Xxxxxxxx Demolition, Inc. Minnesota
United Waste Systems of Kentucky, Inc. Kentucky
United Waste Systems of
Massachusetts, Inc. Massachusetts
United Waste Systems of Michigan, Inc. Michigan
Michigan Environs, Inc. Michigan
United Waste Systems of
Minneapolis, Inc. Minnesota
United Waste Systems of Minnesota, Inc. Minnesota
Xxxxxx Sanitation Services, Inc. Minnesota
Twin City Sanitation, Inc. Minnesota
United Waste Systems of
Mississippi, Inc. Mississippi
Xxxxxxx & Xxxxxxx
Contractors, Inc. Mississippi
United Waste Systems of the
Eastern UP, Inc. Michigan
United Waste Systems of
Trinity County, Inc. California
United Waste Systems of West
Virginia, Inc. Virginia
United Waste Systems of West
Virginia, Inc. West Virginia
Disposal Service, Inc. West Virginia
United Waste Transfer, Inc. Minnesota
UWS Transport, Inc. Delaware
Waste Control Systems, Inc. Minnesota
West Michigan Disposal, Inc. Michigan
Western Land Acquisition, Inc. Rhode Island
Xxxxxxxx Landfill Inc. Kentucky
Zenith/Xxxxxx Waste Systems, Inc. Minnesota
Zenith/Xxxxxx Material Recovery, Inc. Minnesota
Western U.P. Landfill, Inc. Michigan
ANNEX III
Form of Lock-up Agreement
Dated as of March 2, 1997
United Waste Systems, Inc.
Four Xxxxxxxxx Xxxxxx Xxxx
Xxxxxxxxx, XX 00000
Xxxxxxx, Sachs & Co.,
00 Xxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000.
Ladies and Gentlemen:
United Waste Systems, Inc. (the "Company") proposes to
issue and sell (the "Offering") certain shares of the Company's
common stock, par value $.001 per share (the "Shares").
In connection with the Offering, the Company will enter
into an underwriting agreement with Xxxxxxx, Xxxxx & Co. and
possibly others (the "Underwriters"). The form, terms and
conditions of this agreement, including the Underwriters' purchase
price and the initial offering price, as well as the numbers and
identities of the Underwriters, are to be determined by the Company
and the Underwriters at a later date, and references herein to the
"Underwriting Agreement" mean such document in the form in which it
will eventually be executed and delivered by the parties thereto.
The undersigned, to facilitate the marketing of the
Shares and in consideration of the Company and the Underwriters
entering into the Underwriting Agreement, hereby irrevocably
confirms and agrees for the benefit of the Company and the
Underwriters as follows:
During the period beginning on and including the date
hereof and continuing to and including the 90th day after the date
of the Pricing Agreement relating to the Offering, the undersigned
will not, directly or indirectly, publicly offer, sell, contract to
sell, or otherwise publicly dispose of (which shall be deemed to
include, without limitation, the entering into of any cash-settled
derivative instrument) any Covered Securities (as defined below)
without the prior written consent of Xxxxxxx, Sachs & Co. "Covered
Securities" means any Shares, any securities of the Company which
are substantially similar to the Shares and any securities
convertible into or exchangeable or exercisable for Shares or any
such substantially similar securities, which Shares are, on the
date hereof, or become, at any time hereafter, registered in the
name of, or beneficially owned or controlled by, the undersigned.
The agreements set forth herein will terminate
immediately on the 90th day after the date hereof, unless the
Underwriting Agreement has been executed and delivered by the
parties thereto and the closing for any purchases of Shares by the
Underwriters pursuant thereto has occurred prior to such date.
Neither the Company nor any Underwriter makes any representations
as to whether the Offering will be completed.
Very truly yours,
__________________________
Signature
__________________________________
Print Name
ANNEX IV
Pursuant to Section 7(e) of the Underwriting Agreement, the
independent public accountants shall furnish letters to the
Underwriters to the effect that:
(i) They are independent certified public accountants
with respect to the Company and its subsidiaries within the
meaning of the Securities Act and the applicable published
rules and regulations thereunder;
(ii) In their opinion, the financial statements and any
supplementary financial information and schedules (and, if
applicable, financial forecasts and/or pro forma financial
information) examined by them and included or incorporated by
reference in the Registration Statement or the Prospectus as
amended or supplemented comply as to form in all material
respects with the applicable accounting requirements of the
Securities Act or the Exchange Act, as applicable, and the
related published rules and regulations thereunder; and, if
applicable, they have made a review in accordance with
standards established by the American Institute of Certified
Public Accountants of the consolidated interim financial
statements, selected financial data, pro forma financial
information, financial forecasts and/or condensed financial
statements derived from audited financial statements of the
Company for the periods specified in such letter, as indicated
in their reports thereon, copies of which have been
[separately] furnished Representatives [and are attached
hereto];
(iii) They have made a review in accordance with standards
established by the American Institute of Certified Public
Accountants of the unaudited condensed consolidated statements
of income, consolidated balance sheets and consolidated
statements of cash flows included in the Prospectus as amended
or supplemented and/or included in the Company's quarterly
reports on Form 10-Q incorporated by reference into the
Prospectus as amended or supplemented as indicated in their
reports thereon copies of which [have been separately
furnished to the Representatives] [are attached hereto]; and
on the basis of specified procedures including inquiries of
officials of the Company who have responsibility for financial
and accounting matters regarding whether the unaudited
condensed consolidated financial statements referred to in
paragraph (vii)(A)(i) below comply as to form in all material
respects with the applicable accounting requirements of the
Securities Act and the Exchange Act and the related published
rules and regulations, nothing came to their attention that
caused them to believe that the unaudited condensed
consolidated financial statements do not comply as to form in
all material respects with the applicable accounting
requirements of the Securities Act and the Exchange Act and
the related published rules and regulations;
(iv) The unaudited selected financial information with
respect to the consolidated results of operations and
financial position of the Company for the five most recent
fiscal years included in the Prospectus as amended or
supplemented and included or incorporated by reference in Item
6 of the Company's Annual Report on Form 10-K for the most
recent fiscal year agrees with the corresponding amounts
(after restatement where applicable) in the audited
consolidated financial statements for such five fiscal years
which were included or incorporated by reference in the
Company's Annual Reports on Form 10-K for such fiscal years;
(v) They have compared the information in the Prospectus
as amended or supplemented under selected captions with the
disclosure requirements of Regulation S-K and on the basis of
limited procedures specified in such letter nothing came to
their attention as a result of the foregoing procedures that
caused them to believe that this information does not conform
in all material respects with the disclosure requirements of
items 301, 302, 402 and 503(d), respectively, of Regulation
S-K;
(vi) On the basis of limited procedures, not constituting
an examination in accordance with generally accepted auditing
standards, consisting of a reading of the unaudited financial
statements and other information referred to below, a reading
of the latest available interim financial statements of the
Company and its subsidiaries, inspection of the minute books
of the Company and its subsidiaries since the date of the
latest audited financial statements included or incorporated
by reference in the Prospectus as amended or supplemented,
inquiries of officials of the Company and its subsidiaries
responsible for financial and accounting matters and such
other inquiries and procedures as may be specified in such
letter, nothing came to their attention that caused them to
believe that:
(A) (i) the unaudited condensed consolidated statements
of income, consolidated balance sheets and consolidated
statements of cash flows included in the Prospectus as amended
or supplemented and/or included or incorporated by reference
in the Company's Quarterly Reports on Form 10-Q incorporated
by reference in the Prospectus as amended or supplemented do
not comply as to form in all material respects with the
applicable accounting requirements of the Exchange Act and the
related published rules and regulations, or (ii) any material
modifications should be made to the unaudited condensed
consolidated statements of income, consolidated balance sheets
and consolidated statements of cash flows included in the
Prospectus as amended or supplemented or included in the
Company's Quarterly Reports on Form 10-Q incorporated by
reference in the Prospectus as amended or supplemented, for
them to be in conformity with generally accepted accounting
principles;
(B) any other unaudited income statement data and
balance sheet items included in the Prospectus as amended or
supplemented do not agree with the corresponding items in the
unaudited consolidated financial statements from which such
data and items were derived, and any such unaudited data and
items were not determined on a basis substantially consistent
with the basis for the corresponding amounts in the audited
consolidated financial statements included or incorporated by
reference in the Company's Annual Report on Form 10-K for the
most recent fiscal year;
(C) the unaudited financial statements which were not
included in the Prospectus as amended or supplemented but from
which were derived the unaudited condensed financial
statements referred to in clause (A) and any unaudited income
statement data and balance sheet items included in the
Prospectus as amended or supplemented and referred to in
Clause (B) were not determined on a basis substantially
consistent with the basis for the audited financial statements
included or incorporated by reference in the Company's Annual
Report on Form 10-K for the most recent fiscal year;
(D) any unaudited pro forma consolidated condensed
financial statements included or incorporated by reference in
the Prospectus as amended or supplemented do not comply as to
form in all material respects with the applicable accounting
requirements of the Securities Act and the published rules and
regulations thereunder or the pro forma adjustments have not
been properly applied to the historical amounts in the
compilation of those statements;
(E) as of a specified date not more than five days prior
to the date of such letter, there have been any changes in the
consolidated capital stock (other than issuances of capital
stock upon exercise of options and stock appreciation rights,
upon earn-outs of performance shares and upon conversions of
convertible securities, in each case which were outstanding on
the date of the latest balance sheet included or incorporated
by reference in the Prospectus as amended or supplemented) or
any increase in the consolidated long-term debt of the Company
and its subsidiaries, or any decreases in consolidated net
current assets or stockholders' equity or other items
specified by the Representatives, or any increases in any
items specified by the Representatives, in each case as
compared with amounts shown in the latest balance sheet
included or incorporated by reference in the Prospectus as
amended or supplemented, except in each case for changes,
increases or decreases which the Prospectus as amended or
supplemented discloses have occurred or may occur or which are
described in such letter; and
(F) for the period from the date of the latest financial
statements included or incorporated by reference in the
Prospectus as amended or supplemented to the specified date
referred to in Clause (E) there were any decreases in
consolidated net revenues or income from operations or the
total or per share amounts of consolidated net income or other
items specified by the Representatives, or any increases in
any items specified by the Representatives, in each case as
compared with the comparable period of the preceding year and
with any other period of corresponding length specified by the
Representatives, except in each case for increases or
decreases which the Prospectus as amended or supplemented
discloses have occurred or may occur or which are described in
such letter; and
(vii) In addition to the examination referred to in their
report(s) included or incorporated by reference in the
Prospectus as amended or supplemented and the limited
procedures, inspection of minute books, inquiries and other
procedures referred to in paragraphs (iii) and (iv) above,
they have carried out certain specified procedures, not
constituting an examination in accordance with generally
accepted auditing standards, with respect to certain amounts,
percentages and financial information specified by the
Representatives which are derived from the general accounting
records of the Company and its subsidiaries, which appear in
the Prospectus as amended or supplemented (excluding documents
incorporated by reference), or in Part II of, or in exhibits
and schedules to, the Registration Statement specified by the
Representatives or in documents incorporated by reference in
the Prospectus as amended or supplemented specified by the
Representatives, and have compared certain of such amounts,
percentages and financial information with the accounting
records of the Company and its subsidiaries and have found
them to be in agreement.
All references in this Annex IV to the Prospectus as amended
or supplemented shall be deemed to refer to the Prospectus as
amended or supplemented (including the documents incorporated by
reference therein) as defined in the Underwriting Agreement as of
the date of the letter delivered on the date of the Pricing
Agreement for purposes of such letter and to the Prospectus as
amended or supplemented (including the documents incorporated by
reference therein) in relation to the applicable Designated Shares
for purposes of the letter delivered at the Time of Delivery for
such Designated Shares.
ANNEX V
March 6, 1997
Xxxxxxx, Xxxxx & Co.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
Deutsche Xxxxxx Xxxxxxxx Inc.
As Representatives of the several Underwriters
c/o Goldman, Xxxxx & Co.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
We have acted as counsel to United Waste Systems, Inc., a
Delaware corporation (the "Company"), in connection with the issue
and sale to you of an aggregate of 3,000,000 shares of Common
Stock, par value $.001 per share, of the Company (the "Shares").
This opinion is rendered pursuant to Section 7(c) of the
Underwriting Agreement dated March 3, 1997 by and among the Company
and you (the "Underwriting Agreement"). All capitalized terms not
otherwise defined herein are defined as set forth in the
Underwriting Agreement.
As to various questions of fact material to our opinion, we
have relied upon the representations made in the Underwriting
Agreement, upon certificates of officers and upon certificates of
public officials. With regard to the due incorporation of
corporations other than the Company and the good standing of
corporations (other than the Company), we have (subject to the next
sentence) relied entirely upon certificates of public officials.
With regard to the tax good standing of certain corporations (other
than the Company), we have relied solely upon a certificate of an
officer of such corporation to the effect that the corporation has
filed the most recent annual report required by the law of such
jurisdiction and that all franchise taxes required to be paid under
such law have been paid. We have assumed that you have made
payment in full for the Shares, as set forth in the Underwriting
Agreement. We have also examined such corporate documents and
records and other certificates, and have made such investigations
of law, as we have deemed necessary in order to render the opinion
hereinafter set forth. We have assumed the authenticity of all
documents submitted to us as originals, the genuineness of all
signatures, the legal capacity of natural persons and the
conformity to the originals of all documents submitted to us as
copies. We have also assumed that all documents examined by us
have been duly and validly authorized, executed and delivered by
each of the parties thereto other than the Company.
Based upon and subject to the foregoing, we render the
following opinion:
1. The Company has been duly incorporated and is
validly existing as a corporation in good standing under the
laws of the State of Delaware, with corporate power and
authority to conduct its business and to own or lease all the
assets owned or leased by it, in each case as described in the
Prospectus as amended or supplemented.
2. Each of the subsidiaries of the Company identified
on Schedule I hereto has been duly incorporated and is validly
existing as a corporation in good standing under the laws of
the jurisdiction of its incorporation, with corporate power
and authority to conduct its business and to own or lease all
the assets owned or leased by it, in each case as described in
the Prospectus as amended or supplemented.
3. Each of the Company and the subsidiaries of the
Company identified on Schedule I hereto has been duly licensed
or qualified to do business and is in good standing as a
foreign corporation under the laws of each jurisdiction (other
than its jurisdiction of incorporation) in which the nature of
the activities conducted by it or the character of the assets
owned by it make such licensing or qualification necessary,
except where the failure to be so licensed or qualified does
not have a material adverse effect on the condition (financial
or otherwise) of the Company and its subsidiaries taken as a
whole.
4. The Company (or a subsidiary of the Company of which
the Company is the sole record owner) is the sole record owner
of the issued shares of capital stock of each of the
subsidiaries of the Company identified on Schedule I hereto.
5. To the best of our knowledge, the Company has no
subsidiaries (as such term is defined in the rules and
regulations under the Securities Act), other than inactive
subsidiaries, except as set forth in Schedule I hereto.
6. The authorized capital stock of the Company is as
set forth in the Prospectus as amended or supplemented under
the captions "Description of Preferred Stock", "Description of
Common Stock", "Description of Warrants" and "Capitalization".
The information in the Prospectus as amended or supplemented
under the caption "Capitalization" with respect to the number
of shares of the Company's capital stock outstanding, and
reserved for issuance upon the exercise or conversion of the
Company's 4 1/2% Convertible Subordinated Notes due 2001, is
correct as of the dates indicated. The description of the
Shares contained in the Prospectus as amended or supplemented
conforms to the terms thereof contained in the Company's
certificate of incorporation.
7. All of the outstanding shares of capital stock
(including the Shares being delivered on the date hereof) of
the Company have been duly authorized and are validly issued,
fully paid and nonassessable and are not subject to any
preemptive right arising by statute or under the Company's
certificate of incorporation or by-laws or, to the best of our
knowledge, any similar right.
8. No consent, approval, authorization, order,
registration or qualification of or with any court or
governmental agency or body is required for the issue and sale
by the Company of the Shares or the consummation by the
Company of the transactions contemplated by the Underwriting
Agreement, except such as have been obtained under the
Securities Act, the qualification of the Designated Shares for
quotation on the Nasdaq National Market and such consents,
approvals, authorizations, registrations or qualifications as
may be required under state or foreign securities or Blue Sky
laws in connection with the purchase and distribution of the
Shares by the Underwriters.
9. The statements set forth in the Prospectus as
amended or supplemented under the captions "Description of
Preferred Stock", "Description of Common Stock" and
"Description of Warrants", insofar as they purport to
constitute a summary of the terms of the Preferred Stock,
Shares or Warrants described therein, are accurate summaries
in all material respects of such terms. The statements set
forth in the Prospectus as amended or supplemented under the
caption "Plan of Distribution" and "Underwriting", insofar as
they purport to constitute a summary or description of the
provisions of the Underwriting Agreement and lock-up letters
and laws, rules or regulations referred to therein, are
accurate summaries or descriptions in all material respects of
such provisions or such laws, rules or regulations.
10. The Company has full corporate power and authority
to enter into the Underwriting Agreement, and the Underwriting
Agreement has duly authorized, executed and delivered by the
Company.
11. The issue and sale of the Designated Shares being
sold on the date hereof and the compliance by the Company with
all of the provisions of the Underwriting Agreement and the
consummation of the transactions therein contemplated do not
and will not (A) violate the provisions of the certificate of
incorporation or by-laws of the Company or any of its
subsidiaries, (B) to the best of our knowledge, result in a
breach or violation of any of the terms or provisions of, or
constitute a default under, or give any other party a right to
terminate any of its obligations under, or result in the
acceleration of any obligation under, (i) any statute, rule or
regulation of the State of New York or the United States of
America or included in the General Corporation Law of the
State of Delaware (except that we express no opinion as to the
securities or Blue Sky laws of any state), (ii) any material
indenture, mortgage, deed of trust, voting trust agreement,
loan agreement, bond, debenture, note agreement or other
evidence of indebtedness, lease, contract or other agreement
or instrument known to us to which the Company or any of its
subsidiaries is a party or by which the Company or any of its
subsidiaries or any of their respective properties is bound or
(iii) any judgment, decree or order of any court or other
governmental agency or body known to us and by which the
Company or any of its subsidiaries or any of their respective
properties is bound or (C) to the best of our knowledge,
result in the creation of any lien, charge or encumbrance upon
any of the assets of the Company or any of its subsidiaries
under any agreement, instrument, judgment, decree or order
referred to in clause (B)(ii) or (iii) above.
12. To the best of our knowledge, except as set forth in
or contemplated by the Prospectus as amended or supplemented,
there are no actions, suits or proceedings pending or
threatened before or by any federal or state court,
commission, regulatory body, administrative agency or other
governmental body to which the Company or any of its
subsidiaries, or any of their respective officers as such is
a party, or the subject of which is any of the property of any
of the aforementioned entities which are required to be
described in the Prospectus as amended or supplemented and
that are not described as so required.
13. To the best of our knowledge, neither the Company
nor any of its subsidiaries identified on Schedule I hereto is
in violation of its certificate of incorporation, by-laws or
other charter documents.
14. To the best of our knowledge, except as set forth in
or contemplated by the Prospectus as amended or supplemented,
neither the Company nor any of its subsidiaries identified on
Schedule I hereto is (A) in default (nor has an event occurred
which with notice or lapse of time or both would constitute a
default) in the performance or observance of any obligation,
covenant agreement or condition contained in any indenture,
mortgage, deed of trust, voting trust agreement, loan
agreement, bond, debenture, note agreement or other evidence
of indebtedness, lease, contract or other agreement known to
us to which the Company or any of its subsidiaries is a party
or by which the Company or any of its subsidiaries or any of
their properties may be bound, or (B) in violation of any
judgment, decree or order of any court or other governmental
agency or body known to us and by which the Company or any of
its subsidiaries or any of their respective properties is
bound, which default referred to in clause (A) or violation
referred to in clause (B) is required to be described in the
Prospectus as amended or supplemented and is not described as
so required or would reasonably be expected to have a Material
Adverse Effect or would affect the validity of the Shares.
15. The Company is not, and upon the issuance and sale
of the Shares will not be, and will not be, directly or
indirectly, controlled by, an investment company that is or is
required to be registered under the Investment Company Act.
16. The reports filed by the Company pursuant to the
Exchange Act, and incorporated by reference in the
Registration Statement (other than the financial statements
and related schedules therein, as to which we express no
opinion), when they were filed with the Commission, complied
as to form in all material respects with the requirements of
the Exchange Act, and the rules and regulations of the
Commission thereunder;.
17. The Designated Shares being sold on the date hereof
have been duly authorized for quotation on the Nasdaq National
Market.
We have reviewed the Prospectus as amended or supplemented,
participated in discussion with your representatives and those of
the Company, its accountants and its other counsel. (We draw your
attention to the fact that Proskauer Xxxx Xxxxx & Xxxxxxxxxx LLP
has acted as special environmental counsel to the Company in
connection with the preparation of the Prospectus as amended or
supplemented.) Although we have not undertaken, except as
otherwise indicated in this opinion, to investigate or verify
independently, and, except for those portions of the Registration
Statement referred to in the opinion in paragraphs (6) and (9), do
not assume responsibility for, the accuracy, completeness or
fairness of the statements contained in the Prospectus or any
amendment thereof or supplement thereto, on the basis of the
information that we gained in the course of the performance of such
services and our representation of the Company, we confirm to you
that nothing that came to our attention in the course of such
review or representation has caused us to believe that:
(i) the documents incorporated by reference in the Prospectus
as amended or supplemented (except that we express no view as
to (i) financial statements, schedules and other financial
data or (ii) as to statistical data reviewed by Proskauer Xxxx
Xxxxx & Xxxxxxxxxx LLP in its capacity as special
environmental counsel), when they became effective or were
filed with the Commission, as the case may be, contained, in
the case of a registration statement which became effective
under the Securities Act, an 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, in the case of other documents which were
filed under the Securities Act or the Exchange Act with the
Commission, an untrue statement of a material fact or omitted
to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under
which they were made when such documents were so filed, not
misleading or
(ii) the Registration Statement and the Prospectus as amended
or supplemented, and any further amendments and supplements
thereto made by the Company prior to the date and time of this
opinion (except that we express no view as to (i) financial
statements, schedules and other financial data or (ii) as to
statistical data reviewed by Proskauer Xxxx Xxxxx & Xxxxxxxxxx
LLP in its capacity as special environmental counsel), does
not comply as to form in all material respects with the
requirements of the Securities Act and the rules and
regulations thereunder; or that, as of its effective date, the
Registration Statement or any further amendment thereto made
by the Company prior to the date and time of this opinion
(except that we express no view as to (i) financial
statements, schedules and other financial data or (ii) as to
statistical data reviewed by Proskauer Xxxx Xxxxx & Xxxxxxxxxx
LLP in its capacity as special environmental counsel)
contained an 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, as of its date, the Prospectus or the Prospectus as
amended or supplemented with respect to the Designated Shares
or any further amendment or supplement thereto made by the
Company prior to the date and time of this opinion (except
that we express no view as to (i) financial statements,
schedules and other financial data or (ii) as to statistical
data reviewed by Proskauer Xxxx Xxxxx & Xxxxxxxxxx LLP in its
capacity as special environmental counsel) contained an untrue
statement of a material fact or omitted to state a material
fact necessary to make the statements therein, in the light of
the circumstances under which they were made, not misleading
or that, as of the date and time of this opinion, either the
Registration Statement or the Prospectus as amended or
supplemented or any further amendment or supplement thereto
made by the Company prior to the date and time of this opinion
(except that we express no view as to (i) financial
statements, schedules and other financial data or (ii) as to
statistical data reviewed by Proskauer Xxxx Xxxxx & Xxxxxxxxxx
LLP in its capacity as special environmental counsel) contains
an untrue statement of a material fact or omits to state a
material fact necessary to make the statements therein, in the
light of the circumstances under which they were made, not
misleading; or that any amendment to the Registration
Statement required to be filed or any contracts or other
documents of a character required to be filed as an exhibit to
the Registration Statement or required to be incorporated by
reference into the Prospectus as amended or supplemented or
required to be described in the Registration Statement or the
Prospectus as amended or supplemented which has not been filed
or incorporated by reference or described as required
The opinions set forth herein are limited to 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.
This opinion is rendered to you and is solely for your benefit
in connection with the transactions contemplated by the
Underwriting Agreement. Except as contemplated by the Prospectus
as amended or supplemented, this opinion may not be relied upon by
you for any other purpose or furnished to, quoted or relied upon by
any other person, firm or corporation for any purpose without our
prior written consent.
Very truly yours,
XXXXXXXXXX & XXXXXX
By:
A Member of the Firm
XXXXX XX
Xxxxx 0, 0000
Xxxxxxx, Xxxxx & Co.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
Deutsche Xxxxxx Xxxxxxxx Inc.
As Representatives of the several Underwriters
c/o Goldman, Xxxxx & Co.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
We have acted as special environmental counsel to United Waste
Systems, Inc., a Delaware corporation (the "Company"), in
connection with the issue and sale to you of an aggregate of
3,000,000 shares of the Company's Common Stock, par value $.001 per
share (the "Shares"). This opinion is rendered pursuant to
Section 7(d) of the Underwriting Agreement dated March 3, 1997 by
and among the Company and you (the "Underwriting Agreement"). All
capitalized terms not otherwise defined herein are defined as set
forth in the Underwriting Agreement.
As to various questions of fact material to our opinion, we
have relied upon the representations made in the Underwriting
Agreement, upon certificates of officers and upon certificates of
public officials. We have also examined such documents and records
and other certificates, and have made such investigations of law,
as we have deemed necessary in order to render the opinion
hereinafter set forth. We have assumed the authenticity of all
documents submitted to us as originals, the genuineness of all
signatures, the legal capacity of natural persons and the
conformity to the originals of all documents submitted to us as
copies. We have also assumed that all documents examined by us
have been duly and validly authorized, executed and delivered by
each of the parties thereto other than the Company. We are aware
that, in connection with the offering of the Shares, the Company
has been represented generally by Xxxxxxxxxx & Xxxxxx.
Based upon and subject to the foregoing, we render the
following opinion:
1. The statements in the Prospectus as amended or
supplemented relating to the Designated Shares or any further
amendment or supplement thereto made by the Company prior to
the date and time of this Opinion (the "Prospectus") under the
caption, "Risk Factors" and the statements under the captions
"Item 1. Business Industry Background", "Business Operations",
"Business Environmental Regulations" and "Business Factors
that May Influence Future Results and Accuracy of Forward-Looking
Statements Environmental and Land Use Matters", in the
first paragraph under the caption "Item 3. Legal Proceedings"
in the Form 10-K, incorporated by reference in the
Registration Statement, in note 4 to the financial statements
of the Company included in the Company's Form 10-Q for the
quarter ended September 30, 1996, and in note 4 to the
financial statements of the Company included in the Company's
Form 10-Q for the quarter ended June 30, 1996, each as
supplemented and modified in the Prospectus under the caption
"Risk Factors", insofar as such statements purport to
constitute a description of specific rules, laws and
regulations relating to the generation, use, discharge,
treatment, storage and disposal of pollutants, hazardous or
toxic substances, land use and protection of health or the
environment ("Environmental Requirements"), are accurate
descriptions of the information contained therein.
2. To the best of our knowledge, except as set forth in
or contemplated by the Prospectus, there are no actions, suits
or proceedings pending, or threatened, before or by any
federal or state court, commission, regulatory body,
administrative agency or other governmental body relating to
Environmental Requirements to which the Company or any of its
subsidiaries or any of their respective officers as such is a
party, or the subject of which is any of the property of any
of the aforementioned entities which are required to be
described in the Prospectus and that are not described as so
required.
3. To the best of our knowledge, except as set forth in
or contemplated by the Prospectus, neither the Company nor any
of its subsidiaries is in violation of any judgment, decree or
order related to Environmental Requirements of any court or
other governmental agency or body known to us and by which the
Company or any of its subsidiaries or any of their respective
properties is bound, which violation would have a Material
Adverse Effect.
We have participated in the preparation of the Prospectus
Supplement, dated March 3, 1997, solely in our capacity as special
environmental counsel to the Company. In this capacity and
connection, nothing has come to our attention which has caused us
to believe:
(i) that, as of its effective date, the Registration Statement
or any further amendment thereto made by the Company prior to
the date and time of this Opinion (except that we express no
view as to financial statements, schedules and other financial
and statistical data, other than statistical data reviewed by
us in our capacity as special environmental counsel, contained
in the Registration Statement or the documents incorporated
therein) contained an 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
(ii) that either, as of its date and as of the date and time
of this Opinion, the Prospectus or, as of the date and time of
this Opinion, the Registration Statement (except that we
express no view as to financial statements, schedules and
other financial and statistical data, other than statistical
data reviewed by us in our capacity as special environmental
counsel, contained in the Prospectus, the Registration
Statement or the documents incorporated therein) contained or
contains an untrue statement of a material fact or omitted or
omits to state a material fact necessary to make the
statements therein, in the light of the circumstances under
which they were made, not misleading.
The opinions set forth herein are limited to the laws of the
State of New York and the federal laws of the United States. No
opinion is expressed herein as to the laws of any jurisdiction
outside the United States.
This opinion is rendered to you and is solely for your benefit
in connection with the transactions contemplated by the
Underwriting Agreement. This opinion may not be relied upon by you
for any other purpose or furnished to, quoted or relied upon by any
other person, firm or corporation for any purpose without our prior
written consent, except that it may be referred to in the
Prospectus and in closing documents prepared in connection with the
transactions contemplated by the Underwriting Agreement.
Very truly yours,
PROSKAUER XXXX XXXXX &
XXXXXXXXXX LLP
By: _________________________
A Member of the Firm
