EXHIBIT 1.1
4,000,000 Shares
American Disposal Services, Inc.
Common Stock
UNDERWRITING AGREEMENT
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_________, 1998
CIBC Oppenheimer Corp.
Xxxxxxxxx, Xxxxxx & Xxxxxxxx Securities Corporation
c/o CIBC Oppenheimer Corp.
CIBC Xxxxxxxxxxx Xxxxx
Xxxxx Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
On behalf of the Several
Underwriters named in
Schedule I attached hereto.
Gentlemen:
American Disposal Services, Inc., a Delaware corporation (the
"Company"), and the stockholders named on Schedule II to this Agreement (the
"Selling Stockholders") propose to sell to you and the other underwriters named
in Schedule I to this Agreement (the "Underwriters"), for whom you are acting as
Representatives, an aggregate of 4,000,000 shares (the "Firm Shares") of the
Company's common stock, $0.01 par value (the "Common Stock"), of which 1,488,629
shares are to be issued and sold by the Company and 2,511,371 shares are to be
sold by the Selling Stockholders. In addition, the Company proposes to grant to
the Underwriters an option to purchase up to an additional 600,000 shares (the
"Option Shares") of Common Stock from it, for the purpose of covering over-
allotments in connection with the sale of the Firm Shares. The Firm Shares and
the Option Shares are together called the "Shares."
1. Sale and Purchase of the Shares. On the basis of the
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representations, warranties and agreements contained in, and subject to the
terms and conditions of, this Agreement:
(a) The Company and the Selling Stockholders agree, severally and not
jointly, to sell to each of the Underwriters, and each of the Underwriters
agrees, severally and not jointly, to purchase from the Company and the
Selling Stockholders, at $___________ per share (the "Initial Price"), the
number of Firm Shares set forth opposite the name of such Underwriter in
Schedule I to this Agreement.
(b) The Company grants to the several Underwriters an option to purchase,
severally and not jointly, all or any part of the Option Shares at the
Initial Price. The number of Option Shares to be purchased by each
Underwriter shall be the same percentage (adjusted by the Representatives
to eliminate fractions) of the total number of Option Shares to be
purchased by the Underwriters as such Underwriter is purchasing of the Firm
Shares. Such option may be exercised only to cover over-allotments in the
sales of the Firm Shares by the Underwriters and may be exercised in whole
or in part at any time on or before 12:00 noon, New York City time, on the
business day before the Firm Shares Closing Date (as defined below), and
only once thereafter within 30 days after the date of this Agreement, in
each case upon written or telegraphic notice, or verbal or telephonic
notice confirmed by written or telegraphic notice, by the Representatives
to the Company no later than 12:00 noon, New York City time, on the
business day before the Firm Shares Closing Date or at least two business
days before the Option Shares Closing Date (as defined below), as the case
may be, setting forth the number of Option Shares to be purchased and the
time and date (if other than the Firm Shares Closing Date) of such
purchase.
2. Delivery and Payment. Delivery by the Company and the Selling
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Stockholders of the Firm Shares to the Representatives for the respective
accounts of the Underwriters, and payment of the purchase price by certified or
official bank check or checks payable in New York Clearing House (same day)
funds to the Company and the Selling Stockholders, shall take place at the
offices of CIBC Xxxxxxxxxxx Corp., at CIBC Xxxxxxxxxxx Xxxxx, Xxxxx Xxxxxxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, at 10:00 a.m., New York City time, on the
third business day following the date of this Agreement, provided, however, that
if the Shares sold hereunder are priced after 4:30 p.m., New York time, on any
business day, payment and delivery in respect of the Firm Shares shall take
place on the fourth business day following the date of this Agreement; if it is
determined that settlement within the foregoing time frame is not feasible, then
payment and delivery in respect of the Firm Shares shall occur at such time on
such other date, not later than 10 business days after the date of this
Agreement, as shall be agreed upon by the Company and the Representatives (such
time and date of delivery and payment are called the "Firm Shares Closing
Date").
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In the event the option with respect to the Option Shares is
exercised, delivery by the Company of the Option Shares to the Representatives
for the respective accounts of the Underwriters and payment of the purchase
price by certified or official bank check or checks payable in New York Clearing
House (same day) funds to the Company shall take place at the offices of CIBC
Xxxxxxxxxxx Corp. specified above at the time and on the date (which may be the
same date as, but in no event shall be earlier than, the Firm Shares Closing
Date) specified in the notice referred to in Section 1(b) (such time and date of
delivery and payment are called the "Option Shares Closing Date"). The Firm
Shares Closing Date and the Option Shares Closing Date are called, individually,
a "Closing Date" and, together, the "Closing Dates."
Certificates evidencing the Shares shall be registered in such names
and shall be in such denominations as the Representatives shall request at least
two full business days before the Firm Shares Closing Date or, in the case of
Option Shares, on the day of notice of exercise of the option as described in
Section l(b) and shall be made available to the Representatives for checking and
packaging, at such place as is designated by the Representatives, at least one
full business day before the Firm Shares Closing Date (or the Option Shares
Closing Date in the case of the Option Shares).
3. Registration Statement and Prospectus; Public Offering. The
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Company has prepared in conformity with the requirements of the Securities Act
of 1933, as amended (the "Securities Act"), and the published rules and
regulations thereunder (the "Rules") adopted by the Securities and Exchange
Commission (the "Commission") a registration statement on Form S-3 (No. 333-
_______), including a preliminary prospectus relating to the Shares, and has
filed with the Commission the registration statement and such amendments thereto
as may have been required to the date of this Agreement. Copies of such
Registration Statement (including all amendments thereto) and of the related
preliminary prospectus have heretofore been delivered by the Company to you.
The Company may also file a related registration statement with the Commission
pursuant to Rule 462(b) under the Securities Act for the purpose of registering
additional Shares, which registration shall be effective upon filing with the
Commission. The term "Registration Statement" means the Registration Statement
as amended at the time and on the date it becomes effective (the "Effective
Date"), including all exhibits and information, if any, deemed to be part of the
Registration Statement pursuant to Rule 424(a), Rule 430A and Rule 462(b) of the
Rules. The term "preliminary prospectus" means any preliminary prospectus (as
described in Rule 430 of the Rules) included at any time as a part of the
Registration Statement. The term "Prospectus" means the prospectus in the form
first used to confirm sales of the Shares (whether such prospectus was included
in the Registration Statement at the time of effectiveness or was subsequently
filed with the Commission pursuant to Rule 424(b) of the Rules) or the
preliminary prospectus forming part of the Registration Statement at the time it
was declared effective together with the term sheet permitted under Rule 434(b)
and filed with the Commission pursuant to Rule 424(b), as applicable.
The Company and the Selling Stockholders understand that the
Underwriters propose to make a public offering of the Shares, as set forth in
and pursuant to the Prospectus, as soon after the Effective Date and the date of
this Agreement as the Representatives deem advisable. The
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Company and the Selling Stockholders hereby confirm that the Underwriters and
dealers have been authorized to distribute or cause to be distributed each
preliminary prospectus and are authorized to distribute the Prospectus (as from
time to time amended or supplemented if the Company furnishes amendments or
supplements thereto to the Underwriters).
4. Representations and Warranties of the Company and the Selling
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Stockholders.
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(A) The Company hereby represents and warrants to each Underwriter
as follows:
(a) On the Effective Date the Registration Statement complied, and on the
date of the Prospectus, on the date any post-effective amendment to the
Registration Statement or any related registration statement filed with the
Commission pursuant to Rule 462(b) of the Rules shall become effective, on
the date any supplement or amendment to the Prospectus is filed with the
Commission and on each Closing Date, the Registration Statement and the
Prospectus (and any amendment thereof or supplement thereto) will comply in
all material respects with the applicable provisions of the Securities Act
and the Rules and the Securities Exchange Act of 1934, as amended (the
"Exchange Act") and the rules and regulations of the Commission thereunder;
the Registration Statement did not, as of the Effective Date, contain any
untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary in order to make the statements
therein not misleading; and on the other dates referred to above neither
the Registration Statement nor the Prospectus, nor any amendment thereof or
supplement thereto, will contain any untrue statement of a material fact or
will omit to state any material fact required to be stated therein or
necessary in order to make the statements therein not misleading. When any
related preliminary prospectus was first filed with the Commission (whether
filed as part of the Registration Statement or any amendment thereto or
pursuant to Rule 424(a) of the Rules) and when any amendment thereof or
supplement thereto was first filed with the Commission, such preliminary
prospectus as amended or supplemented complied in all material respects
with the applicable provisions of the Securities Act and the Rules and did
not contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary in order to make
the statements therein not misleading. The Company makes no representation
or warranty as to any information contained in or omitted from (i) the
paragraphs with respect to stabilization or affiliate transactions on the
inside front cover page of the Prospectus and (ii) the statements contained
under the caption "Underwriting" in the Prospectus. The Company and the
Selling Stockholders acknowledge that such statements constitute the only
information furnished in writing by the Representatives on behalf of the
several Underwriters specifically for inclusion in the Registration
Statement, any preliminary prospectus or the Prospectus.
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(b) All contracts and other documents required to be filed as exhibits to
the Registration Statement have been filed with the Commission as exhibits
to the Registration Statement.
(c) The financial statements of the Company (including all notes thereto)
included in the Registration Statement and Prospectus fairly present the
financial position, the results of operations, stockholders' equity and
cash flows and the other information purported to be shown therein of the
Company at the respective dates and for the respective periods to which
they apply; and such financial statements have been prepared in conformity
with generally accepted accounting principles, consistently applied
throughout the periods involved, and all adjustments necessary for a fair
presentation of the results for such periods have been made. There are no
schedules required to be included in the Registration Statement in order to
present fairly in all material respects the information required to be
stated therein; and the historical financial information and statistical
data set forth in the Prospectus under the captions "Summary Consolidated
Financial Information," "Capitalization" and "Selected Consolidated
Financial Data" are fairly stated in all material respects in relation to
the financial statements from which they have been derived.
(d) Ernst & Young LLP, whose reports are filed with the Commission as a
part of the Registration Statement, is and, during the periods covered by
its reports, was an independent public accountant as required by the
Securities Act and the Rules.
(e) The Company has been duly organized and is validly existing as a
corporation in good standing under the laws of the State of Delaware. Each
subsidiary of the Company has been duly incorporated or formed and is an
existing corporation in good standing under the laws of the jurisdiction of
its incorporation or organization. The Company has no subsidiary or
subsidiaries other than as set forth on Schedule III hereto (collectively,
the "Subsidiaries") and does not control, directly or indirectly, any other
corporation, partnership, joint venture, association or other business
organization. Each of the Company and its subsidiaries is duly qualified
and in good standing as a foreign corporation in each jurisdiction in which
the character or location of its assets or properties (owned, leased or
licensed) or the nature of its business makes such qualification necessary,
except for such jurisdictions where the failure to so qualify individually
or in the aggregate would not have a material adverse effect on the assets
or properties, business, results of operations or financial condition of
the Company and its subsidiaries, taken as a whole, and the Company has not
received any claim or notice from any official authority in any
jurisdiction that it is required to be qualified or licensed to do business
in any such jurisdiction in which it is not so qualified or licensed.
Except as disclosed in the Registration Statement and the Prospectus, the
Company and its subsidiaries do not own, lease or license any asset or
property or conduct any business outside the United States of America.
Each of the Company and its subsidiaries has all requisite corporate power
and authority, and all necessary authorizations, approvals,
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consents, orders, licenses, certificates and permits of and from all
governmental or regulatory bodies or any other person or entity, to own,
lease and license its assets and properties and conduct its businesses as
now being conducted and as described in the Registration Statement and the
Prospectus, except for such authorizations, approvals, consents, orders,
licenses, certificates and permits which, if not obtained, would not have a
material adverse effect on the assets or properties, business, results of
operations or financial condition of the Company and its subsidiaries,
taken as a whole; no such authorization, approval, consent, order, license,
certificate or permit contains a materially burdensome restriction other
than as disclosed in the Registration Statement and the Prospectus; and the
Company has all such corporate power and authority, and such
authorizations, approvals, consents, orders, licenses, certificates and
permits to enter into, deliver and perform this Agreement and to issue and
sell the Shares (except as may be required under the Securities Act, the
Exchange Act and state and foreign Blue Sky laws).
(f) Except as disclosed in the Registration Statement and the Prospectus,
the Company owns or possesses adequate and enforceable rights to use all
(to the extent any of them exist) patents, patent applications, trademarks,
trademark applications, service marks, copyrights, copyright applications,
licenses and other similar rights (collectively, the "Intangibles")
necessary for the conduct of its business as now being conducted and as
described in the Registration Statement and the Prospectus. The Company
has not infringed, is not infringing, and has not received any notice of
infringement of, any Intangible of any other person and the Company does
not know of any basis therefor except for such infringements which
individually or in the aggregate would not have a material adverse effect
on the assets or properties, business, results of operations or financial
condition of the Company and its subsidiaries, taken as a whole. The
Company has not received any notice of infringement of any of its
Intangibles and the Company does not know of any basis therefor.
(g) Each of the Company and its subsidiaries has good and marketable
title in fee simple to each of the items of personal property which are
reflected in the financial statements referred to in Section 4(A)(c) or are
referred to in the Registration Statement and the Prospectus as being owned
by it and valid and enforceable leasehold interests in each of the items of
real and personal property which are referred to in the Registration
Statement and the Prospectus as being leased by it, in each case free and
clear of all liens, encumbrances, claims, security interests and defects,
other than those described in the Registration Statement and the Prospectus
and other than those that could not materially affect the value thereof or
materially interfere with the use made or presently contemplated to be made
thereof by them.
(h) Except as disclosed in the Registration Statement and the Prospectus,
there is no litigation or governmental or other proceeding or investigation
before any court or before or by any public body or board pending or, to
the best of the Company's knowledge, threatened (and the Company does not
know of any basis therefor) against,
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or involving the assets, properties or businesses of, the Company or any of
its subsidiaries which, if determined adversely to the Company or any of
its subsidiaries, would materially adversely affect the value or the
operation of any such assets or properties or the business, results of
operations or financial condition of the Company and its subsidiaries,
taken as a whole, or would materially and adversely affect the ability of
the Company to perform its obligations under this Agreement.
(i) Subsequent to the respective dates as of which information is given
in the Registration Statement and the Prospectus, except as described
therein, there has not been any material adverse change in the assets or
properties, business, results of operations or financial condition of the
Company and its subsidiaries, taken as a whole, whether or not arising from
transactions in the ordinary course of business; each of the Company and
its subsidiaries has not entered into any transaction, other than in the
ordinary course of business, that is material to the Company and its
subsidiaries, taken as a whole; each of the Company and its subsidiaries
has not sustained any material loss or interference with its assets,
businesses or properties from fire, explosion, earthquake, flood or other
calamity, whether or not covered by insurance, or from any labor dispute or
any court or legislative or other governmental action, order or decree.
Since the date of the latest balance sheet included in the Registration
Statement and the Prospectus, except as reflected in the Registration
Statement and the Prospectus, each of the Company and its subsidiaries has
not undertaken any liability or obligation, direct or contingent, except
for liabilities or obligations undertaken in the ordinary course of
business.
(j) Each agreement listed in the Exhibits to the Registration Statement
is in full force and effect and is valid and enforceable by the Company or
one of its subsidiaries in accordance with its terms, except where the
failure of any such agreement to be in full force and effect and valid and
enforceable by the Company or one of its subsidiaries in accordance with
its terms would not have a material adverse effect on the assets or
properties, business, results of operations or financial condition of the
Company and its subsidiaries, taken as a whole, assuming the due
authorization, execution and delivery thereof by each of the other parties
thereto. Neither the Company, nor to the best of the Company's knowledge,
any other party is in default in the observance or performance of any term
or obligation to be performed by it under any such agreement, and no event
has occurred which with notice or lapse of time or both would constitute
such a default which default or event would have a material adverse effect
on the assets or properties, business, results of operations or financial
condition of the Company and its subsidiaries, taken as a whole. No
default exists, and no event has occurred which with notice or lapse of
time or both would constitute a default, in the due performance and
observance of any term, covenant or condition, by the Company of any other
indenture, mortgage, deed of trust, note or any other agreement or
instrument to which the Company or any of its subsidiaries is a party or by
which any of them or their properties or businesses is bound or affected
which default or event would have a material adverse effect on the assets
or properties,
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business, results of operations or financial condition of the Company and
its subsidiaries, taken as a whole.
(k) Each of the Company and its subsidiaries is not in violation of any
term or provision of its charter or by-laws or of any franchise, license,
permit, judgment, decree, order, statute, rule or regulation, where the
consequences of such violation would have a material adverse effect on the
assets or properties, business, results of operations or financial
condition of the Company.
(l) Neither the execution, delivery and performance of this Agreement by
the Company nor the consummation of any of the transactions contemplated
hereby or thereby (including, without limitation, the issuance and sale by
the Company of the Shares) will (i) give rise to a right to terminate or
accelerate the due date of any payment due under, or conflict with or
result in the breach of any term or provision of, or constitute a default
(or any event which with notice or lapse of time or both would constitute a
default) under, or require any consent or waiver under, or result in the
execution or imposition of any lien, charge or encumbrance upon any
properties or assets of the Company or any of its subsidiaries pursuant to
the terms of, any indenture, mortgage, deed of trust, note or other
agreement or instrument to which the Company or any of its subsidiaries, is
a party or by which any of them or their properties or businesses is bound,
or any franchise, license, permit, judgment, decree, order, statute, rule
or regulation applicable to the Company or any of its subsidiaries, except
for such terminations, accelerations, conflicts, breaches, defaults and
events which would not, individually or in the aggregate, result in a
material adverse effect on the assets or properties, business, results of
operations or financial condition of the Company and its subsidiaries,
taken as a whole, or (ii) violate any provision of the charter or by-laws
of the Company or any of its subsidiaries.
(m) The Company has 60,000,000 authorized shares of Common Stock,
21,116,173 of which are issued and outstanding. As of December 31, 1997,
the Company had an authorized and outstanding capitalization as set forth
under the caption "Capitalization" in the Prospectus. All of the
outstanding shares of Common Stock have been duly and validly authorized
and have been duly and validly issued and are fully paid and nonassessable
and none of them was issued in violation of any preemptive or other similar
statutory right. The Shares, when issued and sold pursuant to this
Agreement, will be duly and validly issued, fully paid and nonassessable
and none of them will be issued in violation of any preemptive or other
similar statutory right. Except as disclosed in the Registration Statement
and the Prospectus, there is no outstanding option, warrant or other right
calling for the issuance of, and no commitment, plan or agreement to issue,
any share of stock of the Company or any security convertible into, or
exercisable or exchangeable for, stock of the Company. The Common Stock
and the undesignated preferred stock, $0.01 par value (the "Preferred
Stock") and the Shares conform to all
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statements in relation thereto contained in the Registration Statement and
the Prospectus. No shares of Preferred Stock are issued and outstanding.
(n) Subsequent to the respective dates as of which information is given
in the Registration Statement and the Prospectus, except as described or
referred to therein, the Company has not (i) issued any securities or
incurred any liability or obligation, direct or contingent, for borrowed
money, (ii) entered into any transaction not in the ordinary course of
business or (iii) declared or paid any dividend or made any distribution on
any shares of its stock or redeemed, purchased or otherwise acquired or
agreed to redeem, purchase or otherwise acquire any shares of its stock.
(o) No holder of any security of the Company has any right to have any
security owned by such holder included in the Registration Statement (not
heretofore waived). The Company has obtained from all officers and
directors of the Company who together, following the Offering, will
beneficially hold an aggregate of __________ shares of Common Stock or
options and warrants to purchase Common Stock, their enforceable written
agreement that for a period of at least 90 days from the date of this
Agreement they will not, without the prior written consent of the
Representatives, sell, offer to sell, distribute, pledge, grant any option
for the sale of, or otherwise dispose of, directly or indirectly, or
encumber, or exercise any registration rights with respect to, any shares
of Common Stock, any options or warrants to purchase any shares of Common
Stock, or any securities convertible into or exchangeable for shares of
Common Stock now owned by them or hereafter acquired or with respect to
which they have or hereafter acquire the power of disposition.
(p) All necessary corporate action has been duly and validly taken by the
Company to authorize the execution, delivery and performance of this
Agreement and the issuance and sale of the Shares. This Agreement has been
duly and validly executed and delivered by the Company and constitutes and
will constitute the legal, valid and binding obligation of the Company
enforceable against the Company in accordance with its terms, except (A) as
the enforceability thereof may be limited by bankruptcy, insolvency,
fraudulent transfer, fraudulent conveyance, reorganization, moratorium or
other similar laws affecting the enforcement of creditors' rights generally
and by general equitable principles (whether considered in proceedings in
equity or at law) and (B) with respect to this Agreement, to the extent
that rights to indemnity or contribution under this Agreement may be
limited by federal, state or foreign securities laws or the public policy
underlying such laws.
(q) Each of the Company and its subsidiaries is conducting its business
in compliance with all applicable laws, rules and regulations of the
jurisdictions in which it is conducting business, including, without
limitation, all applicable local, state and federal environmental laws and
regulations, except where the failure to be so in compliance would not have
a material adverse effect on the assets or properties, business,
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results of operations or financial condition of the Company and its
subsidiaries, taken as a whole.
(r) No transaction has occurred between or among the Company and any of
its officers or directors or any affiliate or affiliates of any such
officer or director that is required to be described in and is not
described in the Registration Statement and the Prospectus.
(s) The Company has not taken, nor will it take, directly or indirectly,
any action designed to or which might reasonably be expected to cause or
result in, or which has constituted or which might reasonably be expected
to constitute, the stabilization or manipulation of the price of the Common
Stock to facilitate the sale or resale of any of the Shares.
(t) The Company has filed all federal, state, local and foreign tax
returns which are required to be filed through the date hereof, or has
received extensions thereof, and has paid all taxes shown on such returns
and all assessments received by it, except where the failure to file,
extend the due date of or pay the same, individually or in the aggregate
would not have a material adverse effect on the assets or properties,
business, results of operations or financial condition of the Company and
its subsidiaries, taken as a whole.
(u) The Shares have been approved for quotation on the National
Association of Securities Dealers Automated Quotation ("Nasdaq") National
Market, subject to official notice of issuance.
(B) Each Selling Stockholder, severally and not jointly, represents and
warrants as to such Selling Stockholder to each Underwriter that:
(a) This Agreement, and such Selling Stockholder's Custody Agreement and
power of attorney (the "Custody Agreement" and "Power of Attorney") among
such Selling Stockholder, Xxxxxxx Xx Xxxxx, Xxxxxxx X. Xxxxx and Xxx X.
Xxxxx, as attorneys-in-fact, and American Disposal Services, Inc., as
custodian, have been duly and validly executed and delivered by such
Selling Stockholder and constitutes and will constitute the legal, valid
and binding obligation of such Selling Stockholder, enforceable against
such Selling Stockholder in accordance with its terms, except (i) as the
enforceability hereof and thereof may be limited by bankruptcy, insolvency,
moratorium or other similar laws affecting the enforcement of creditors'
rights generally and by general equitable principles and (ii) to the extent
that rights to indemnity or contribution under this Agreement may be
limited by federal and state securities laws or the public policy
underlying such laws.
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(b) Such Selling Stockholder has good, valid and marketable title to the
Shares to be sold by such Selling Stockholder pursuant to this Agreement,
free and clear of all liens, encumbrances, security interests, restrictions
or claims whatsoever, with the legal right and full power to enter into
this Agreement and to sell, transfer and deliver such Shares hereunder and,
upon the delivery of and payment for such Shares as contemplated hereby,
such Selling Stockholder will convey to the Underwriters good, valid and
marketable title to the Shares being sold by such Selling Stockholder, free
and clear of all liens, encumbrances, security interests, restrictions or
claims whatsoever.
(c) All information with respect to such Selling Stockholder furnished by
or on behalf of such Selling Stockholder for use in connection with the
preparation of the Registration Statement and Prospectus is true and
correct in all material respects and does not omit to state any material
fact necessary to make such information not misleading.
(d) No transaction has occurred between such Selling Stockholder and the
Company or any of its subsidiaries that is required to be described in and
is not described in the Registration Statement and the Prospectus.
(e) Such Selling Stockholder has not taken and will not take, directly or
indirectly, any action designed to or which might reasonably be expected to
cause or result in, or which has constituted or which will reasonably be
expected to constitute, stabilization or manipulation of the price of the
Common Stock to facilitate the sale or resale of any of the Shares.
(f) Such Selling Shareholder hereby repeats and confirms as if set forth
in full herein each of the representations, warranties and agreements made
by such Selling Shareholder in the Custody Agreement and Power of Attorney
and agrees that such representations, warranties and agreements are made
hereby for the benefit of, and may be relied upon by, (i) the
Representatives, the Underwriters and Xxxxxx, Xxxxx & Bockius LLP, counsel
to the Underwriters, (ii) the Company and Proskauer Rose LLP, counsel to
the Company, and (iii) each other Selling Stockholder.
5. Conditions of the Underwriters' Obligations. The obligations
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of the Underwriters under this Agreement are several and not joint. The
respective obligations of the Underwriters to purchase the Shares are subject to
each of the following terms and conditions:
(a) The Prospectus shall have been timely filed with the Commission in
accordance with Section 6(A)(a).
(b) No order preventing or suspending the use of any preliminary
prospectus or the Prospectus shall have been or shall be in effect, and no
order suspending the effectiveness of the Registration Statement shall be
in effect and no proceedings for such purpose shall be pending before or
threatened by the Commission, and any requests for
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additional information on the part of the Commission (to be included in the
Registration Statement or the Prospectus or otherwise) shall have been
complied with to the satisfaction of the Representatives.
(c) The representations and warranties of the Company and the Selling
Stockholders contained in this Agreement and in the certificates delivered
pursuant to Section 5(d) and 5(e) shall be true and correct when made and
on and as of each Closing Date as if made on such date and the Company and
the Selling Stockholders shall have performed all covenants and agreements
and satisfied all the conditions contained in this Agreement required to be
performed or satisfied by it or them at or before such Closing Date.
(d) The Representatives shall have received on each Closing Date a
certificate, addressed to the Representatives and dated such Closing Date,
of the chief executive or chief operating officer and the chief financial
officer or chief accounting officer of the Company, to the effect that the
signers of such certificate have carefully examined the Registration
Statement, the Prospectus and this Agreement and that the representations
and warranties of the Company in this Agreement are true and correct on and
as of such Closing Date with the same effect as if made on such Closing
Date and the Company has performed all covenants and agreements and
satisfied all conditions contained in this Agreement required to be
performed or satisfied by it at or prior to such Closing Date.
(e) The Representatives shall have received on each Closing Date a
certificate, addressed to the Representatives and dated such Closing Date,
of each Selling Stockholder (or a responsible officer thereof) to the
effect that the representations and warranties of such Selling Stockholder
in this Agreement are true and correct on and as of such Closing Date with
the same effect as if made on such Closing Date and such Selling
Stockholder has performed all covenants and agreements and satisfied all
conditions contained in this Agreement required to be performed or
satisfied by such Selling Stockholder at or prior to such Closing Date.
(f) The Representatives shall have received at the time this Agreement
is executed and on each Closing Date a letter or letters signed by Ernst &
Young LLP, addressed to the Representatives and dated, respectively, the
date of this Agreement and each such Closing Date, in form and substance
satisfactory to the Representatives, confirming that they are independent
accountants within the meaning of the Securities Act and the Rules, that
the response to Item 10 of the Registration Statement is correct insofar as
it relates to them and stating in effect that:
(i) in their opinion the audited financial statements and financial
statement schedules, if any, included in the Registration Statement
and the Prospectus and reported on by them comply as to form in all
material respects with the applicable accounting requirements of the
Securities Act and the Rules;
- 12 -
(ii) on the basis of a reading of the amounts included in the
Registration Statement and the Prospectus under the headings "Summary
Consolidated Financial Information" and "Selected Consolidated
Financial Data"; a reading of the minutes of the meetings of the
stockholders and directors and finance and audit committees of the
Company; and inquiries of certain officials of the Company who have
responsibility for financial and accounting matters of the Company as
to transactions and events subsequent to the date of the latest
audited financial statements, nothing came to their attention which
caused them to believe that:
(A) the amounts in "Summary Consolidated Financial
Information" and "Selected Consolidated Financial Data" included
in the Registration Statement and the Prospectus do not agree
with the corresponding amounts in the audited financial
statements from which such amounts were derived; or
(B) the audited financial statements as of and for the three
years ended December 31, 1997 included in the Registration
Statement (i) do not comply in form in all material respects with
the applicable accounting requirements of the Securities Act and
the Rules and (ii) are not in conformity with generally accepted
accounting principles applied on a basis substantially consistent
with that of the audited financial statements; or
(C) (i) with respect to the Company there were, at a specified
date not more than five business days prior to the date of the
letter, any increases in the total current liabilities and long-
term debt of the Company or capital stock of the Company or
decreases in working capital (deficit) or total stockholders'
equity (deficit) of the Company, as compared with the amounts
shown on the Company's audited December 31, 1997 balance sheet
included in the Registration Statement and the Prospectus, or
(ii) for the period from December 31, 1997 to such specified date
not more than five business days prior to the date of the letter,
there were any increases in net losses except for increases in
net losses set forth in the Registration Statement and the
Prospectus, in which case the Company shall deliver to the
Representatives a letter containing an explanation by the Company
as to the significance thereof unless said explanation is not
deemed necessary by the Representatives; and
(iii) they have performed certain other procedures as a result of
which they determined that certain information of an accounting,
financial or statistical nature (which is limited to accounting,
financial or statistical information derived from the general
accounting records of the Company) set forth in the Registration
- 13 -
Statement and the Prospectus and specified by the Representatives
agrees with the accounting records of the Company.
References to the Registration Statement and the Prospectus in this
paragraph (f) are to such documents as amended and supplemented at the date
of the letter.
(g) [Intentionally omitted]
(h) The Representatives shall have received on each Closing Date from
Proskauer Rose LLP, counsel for the Company, an opinion, addressed to the
Representatives and dated such Closing Date, and stating in effect that:
(i) The Company has been duly organized and is validly existing as
a corporation in good standing under the laws of the State of
Delaware. Each Subsidiary of the Company set forth on Schedule III
hereto has been duly incorporated or formed and is an existing
corporation in good standing under the laws of the jurisdiction of its
incorporation or organization.
(ii) Each of the Company and the Subsidiaries set forth on Schedule
III hereto has all requisite corporate power and authority to own,
lease and license its assets and properties and conduct its business
as now being conducted and as described in the Registration Statement
and the Prospectus; and the Company has all requisite corporate power
and authority and all necessary governmental authorizations,
approvals, consents, orders, licenses, certificates and permits
required pursuant to New York State law, federal law and the General
Corporation Law of the State of Delaware or known to such counsel to
be required under the laws of other jurisdictions, and all other
necessary authorizations, approvals, consents, orders, licenses,
certificates and permits either called for by any contracts or other
documents of which such counsel has knowledge or which are, to such
counsel's knowledge, otherwise required, to enter into, deliver and
perform this Agreement and to issue and sell the Shares, other than
those required under the Securities Act, the Exchange Act and state
and foreign Blue Sky laws.
(iii) The Company has 60,000,000 authorized shares of Common Stock,
21,116,173 of which are issued and outstanding of record after giving
effect to the transactions contemplated by this Agreement; no shares
of Preferred Stock are issued and outstanding; as of __________ , the
Company had an authorized and outstanding capitalization of record as
set forth under the caption "Capitalization" in the Prospectus; the
certificates evidencing the Shares are in due and proper legal form
and have been duly authorized for issuance by the Company; all of the
outstanding shares of Common Stock of the Company have been duly and
validly authorized and have been duly and validly issued and are fully
paid and nonassessable and none of them was issued in violation of any
preemptive or
- 14 -
other similar statutory right. The Shares, when issued and sold
pursuant to this Agreement, will be duly and validly issued, fully
paid and nonassessable and none of them will have been issued in
violation of any preemptive or other similar statutory right. To such
counsel's knowledge, except as disclosed in the Registration Statement
and the Prospectus, there is no outstanding option, warrant or other
right calling for the issuance of, and no commitment, plan or
agreement to issue, any share of stock of the Company or any security
convertible into, or exercisable or exchangeable for, stock of the
Company. The Common Stock, the Preferred Stock and the Shares conform
to all statements in relation thereto contained in the Registration
Statement and the Prospectus in all material respects.
(iv) All necessary corporate action has been duly and validly taken
by the Company to authorize the execution, delivery and performance of
this Agreement. This Agreement has been duly and validly executed and
delivered by the Company and constitutes and will constitute the
legal, valid and binding obligation of the Company enforceable against
the Company in accordance with its terms except (A) as such
enforceability may be limited by applicable bankruptcy, insolvency,
fraudulent transfer, fraudulent conveyance, reorganization, moratorium
or other similar laws affecting the enforcement of creditors' rights
generally and by general equitable principles (whether considered in
proceedings in equity or at law) and (B) with respect to this
Agreement, to the extent that rights to indemnity or contribution
under this Agreement may be limited by federal, state or foreign
securities laws or the public policy underlying such laws.
(v) Neither the execution, delivery and performance of this
Agreement by the Company nor the consummation of any of the
transactions contemplated hereby (including, without limitation, the
issuance and sale by the Company of the Shares) will (i) give rise to
a right to terminate or accelerate the due date of any payment due
under, or conflict with or result in the breach of any term or
provision of, or constitute a default (or any event which with notice
or lapse of time, or both, would constitute a default) under, or
require any consent or waiver under, or result in the execution or
imposition of any lien, charge or encumbrance upon any properties or
assets of the Company or any of its subsidiaries pursuant to the terms
of, any indenture, mortgage, deed of trust, note or other agreement or
instrument of which such counsel has knowledge and to which the
Company or any of its subsidiaries is a party or by which any of them
or their properties or businesses is bound, or any franchise, license,
permit, judgment, decree, order, statute, rule or regulation of which
such counsel has knowledge and applicable to the Company or any of its
subsidiaries, except for such terminations, accelerations, conflicts,
breaches, defaults and events which would not, individually or in the
aggregate, result in a material adverse effect on the assets or
properties, business, results of operations or financial condition of
the Company
- 15 -
and its subsidiaries, taken as a whole, or (ii) violate any provision
of the charter or by-laws of the Company or any of its subsidiaries.
(vi) To such counsel's knowledge, no default exists, and no event
has occurred which with notice or lapse of time or both would
constitute a default, in the due performance and observance of any
term, covenant or condition, of any indenture, mortgage, deed of
trust, note or any other agreement or instrument to which the Company
or any of its subsidiaries is a party or by which any of them or their
assets or properties or businesses is bound or affected which default
would have a material adverse effect on the assets or properties,
business, results of operations or financial condition of the Company
and its subsidiaries, taken as a whole.
(vii) To such counsel's knowledge, each of the Company and its
subsidiaries is not in violation of any term or provision of its
charter or by-laws or of any franchise, license, permit, judgment,
decree, order, statute, rule or regulation, where the consequences of
such violation would have a material adverse effect on the assets or
properties, businesses, results of operations or financial condition
of the Company and its subsidiaries, taken as a whole.
(viii) No consent, approval, authorization or order of any federal
or New York State court or governmental agency or body or under the
General Corporation Law of the State of Delaware or otherwise known to
such counsel to be required is required for the performance of this
Agreement by the Company or the consummation of the transactions
contemplated hereby, except such as have been obtained under the
Securities Act, the Exchange Act and such as may be required under
state securities or Blue Sky laws in connection with the purchase and
distribution of the Shares by the several Underwriters.
(ix) Except as described in the Registration Statement and the
Prospectus, to such counsel's knowledge, there is no litigation or
governmental or other proceeding or investigation before any court or
before or by any public body or board pending or threatened (and such
counsel does not know of any basis therefor) against, or involving the
assets, properties or businesses of, the Company or any of its
subsidiaries which, if determined adversely to the Company or any of
its subsidiaries, would materially adversely affect the value or the
operation of any such assets or properties or the business, results of
operations or financial condition of the Company and its subsidiaries,
taken as a whole.
(x) The agreement of the Company stating that for a period of 90
days from the date of the Prospectus it will not, without the
Representatives' prior written consent, sell, offer to sell,
distribute, pledge, grant any option for the sale of, or otherwise
dispose of, directly or indirectly, or encumber, or exercise any
- 16 -
registration rights with respect to, any shares of Common Stock, any
options or warrants to purchase any shares of Common Stock, or any
securities convertible into or exchangeable for shares of Common Stock
has been duly and validly delivered by the Company and constitutes a
legal, valid and binding obligation of the Company enforceable against
it in accordance with its terms, except as the enforceability thereof
may be limited by applicable bankruptcy, insolvency, fraudulent
transfer, fraudulent conveyance, reorganization, moratorium or other
similar laws affecting the enforcement of creditors' rights generally
and by general equitable principles (whether considered in proceedings
in equity or at law). __________ shares of Common Stock which are
outstanding or issuable upon the exercise of stock options or warrants
or the conversion of debt instruments of which such counsel has
knowledge are subject to a written agreement obtained by the Company
pursuant to Section 4(A)(o) of this Agreement.
(xi) The statements in the Prospectus under the captions "Risk
Factors-Extensive Environmental and Land Use Laws and Regulations"; "-
Anti-Takeover Provisions"; "Shares Eligible for Future Sale" insofar
as such statements constitute a summary of documents referred to
therein or matters of law, are fair summaries of the material
provisions thereof and accurately present in all material respects the
information called for with respect to such documents and matters. All
contracts and other documents required to be filed as exhibits to, or
described in, the Registration Statement of which such counsel has
knowledge have been so filed with the Commission or are fairly
described in the Registration Statement, as the case may be.
(xii) The Registration Statement, all preliminary prospectuses and
the Prospectus and each amendment or supplement thereto (except for
the financial statements and notes and other financial and statistical
data included therein, as to which such counsel need express no
opinion) comply as to form in all material respects with the
requirements of the Securities Act and the Rules.
(xiii) The Registration Statement has become effective under the
Securities Act, and no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that
purpose have been instituted or are threatened, pending or
contemplated.
To the extent deemed advisable by such counsel, they may rely as to
matters of fact on certificates of responsible officers of the Company and
public officials and on the opinions of other counsel satisfactory to the
Representatives as to matters which are governed by laws other than the laws of
the State of New York, the General Corporation Law of the State of Delaware and
the federal laws of the United States; provided that such counsel shall state
that in their opinion the Underwriters and they are justified in relying on such
other opinions. Such counsel shall also state that in connection with rendering
the opinions in (i) and (ii) of this Section 5(h), such counsel has
- 17 -
assumed that the corporation laws of the States of Missouri, Kansas, Ohio,
Illinois, Indiana and Oklahoma are identical to the General Corporation Law of
the State of Delaware. Copies of such certificates and other opinions shall be
furnished to the Representatives and counsel for the Underwriters.
In addition, such counsel shall state in a separate letter to the
Representatives that such counsel has participated in conferences with certain
officers of, and with the accountants and counsel for, the Company and
representatives of the Representatives concerning the preparation of the
Registration Statement, the preliminary prospectus and the Prospectus. Such
separate letter shall also state that although such counsel has made certain
inquiries and investigations in connection with the preparation of the
Registration Statement, such counsel did not independently verify the accuracy
or completeness of the statements made therein or in the preliminary prospectus
or in the Prospectus and the limitations inherent in the role of outside counsel
are such that such counsel cannot and does not assume responsibility for or pass
on the accuracy and completeness of such statements, except insofar as such
statements relate to such counsel. On the basis of the foregoing, such counsel
shall state that its work in connection with this matter did not disclose any
information that caused such counsel to believe that the Registration Statement
at the time it became effective (except with respect to the financial statements
and notes and schedules thereto and other financial and statistical data, as to
which such counsel need make no statement) contained any untrue statement of a
material fact or omitted to state a material fact required to be stated therein
or necessary to make the statements therein not misleading, or that the
Prospectus as of its date and as of the date of such letter, contained or
contains an untrue statement of a material fact or omitted or omits to state a
material fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading (other than
financial statements and other information of a statistical, accounting, or
financial nature which are or should be contained therein, as to which such
counsel shall express no view).
(i) [intentionally omitted]
(j) The Representatives shall have received on each Closing Date from
counsel for each of the Selling Stockholders (other than Chef Nominees
Limited), an opinion, addressed to the Representatives and dated such
Closing Date, and stating in effect that:
(i) Such Selling Stockholder has been duly organized, validly
existing and in good standing under the laws of the state of the
jurisdiction of its organization and has full legal right and power, and
has obtained any authorization or approval required by law (other than
those imposed by the Act and the securities or blue sky laws of certain
jurisdictions or by the NASD) to enter into and deliver and perform this
Agreement and to sell, assign, transfer and deliver the Shares to be sold
by such Selling Stockholder in the manner provided in this Agreement. This
Agreement, the Custody Agreement and the Power of Attorney have been duly
and validly authorized, executed and delivered by such Selling Stockholder
and
- 18 -
each constitutes the legal, valid and binding obligation of such Selling
Stockholder, except as may be limited by bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium or similar laws relating to or
affecting creditors' rights and remedies generally and by general equitable
principles (whether applied by a court of law or in equity) and except as
to rights of indemnity under Section 7 of this Agreement which may be
limited by federal or state securities laws or the public policy underlying
those laws.
(ii) Each of the representatives of each Selling Stockholder has
been duly authorized by such Selling Stockholder to execute and deliver on
behalf of such Selling Stockholder this Agreement, the Custody Agreement,
the Power of Attorney and any other document necessary or desirable in
connection with the transactions contemplated hereby or thereby and to
deliver the Shares to be sold by such Selling Stockholder.
(iii) To the best of such counsel's knowledge (without independent
inquiry), there is no litigation or governmental or other proceeding
or investigation before any court or before or by any public body or
board pending or threatened against, or involving the assets,
properties or business of, such Selling Stockholder, which might have
a material adverse effect upon the ability of such Selling Stockholder
to perform its obligations under this Agreement.
(iv) Upon delivery of the Shares to the Underwriters, the
Underwriters will acquire good and valid title to the Shares, free and
clear of any adverse claims within the meaning of Section 8-302 of the
New York Uniform Commercial Code.
To the extent deemed advisable by such counsel, they may rely as to
matters of fact on certificates of responsible officers of the Company, the
Selling Stockholders and public officials. Copies of such certificates shall be
furnished to the Representatives and counsel for the Underwriters.
(k) All proceedings taken in connection with the sale of the Firm Shares
and the Option Shares as herein contemplated shall be reasonably
satisfactory in form and substance to the Representatives and their counsel
and the Underwriters shall have received from Xxxxxx, Xxxxx & Xxxxxxx LLP a
favorable opinion, addressed to the Representatives and dated such Closing
Date, with respect to the Shares, the Registration Statement and the
Prospectus, and such other related matters, as the Representatives may
reasonably request, and the Company and the Selling Stockholders shall have
furnished to Xxxxxx, Xxxxx & Bockius LLP such documents as they may
reasonably request for the purpose of enabling them to pass upon such
matters.
(l) The Representatives shall have received on each Closing Date a
certificate, including exhibits thereto, addressed to the Representatives
and dated such Closing Date,
- 19 -
of the Secretary or an Assistant Secretary of the Company, signed in such
officer's capacity as such officer, as to the (i) certificate of
incorporation and bylaws of the Company, (ii) resolutions authorizing the
execution and delivery of the Registration Statement, this Agreement and
the performance of the transactions contemplated by this Agreement, the
Registration Statement, the Prospectus and the offering of the Shares, and
(iii) incumbency of the person or persons authorized to execute and deliver
the Registration Statement, this Agreement and any other documents
contemplated by the offering of the Shares.
(m) The Representatives shall have received on each Closing Date
certificates of the Secretaries of State of each State where the Company or
any of its subsidiaries is incorporated and doing business as to the good
standing of the Company or such subsidiary, listing all charter documents
on file, if applicable, qualification of the Company or such subsidiary to
do business as a foreign corporation, if applicable, payment of taxes and
filing of annual reports. In addition, the Representatives shall have
received copies of all charter documents of the Company, County Disposal,
Inc. and ADS, Inc. certified by the Secretary of State of the State of such
corporation's incorporation.
6. Covenants of the Company and the Selling Stockholders. (A) The
-----------------------------------------------------
Company, and where specifically stated to be a covenant of the Selling
Stockholders, each of the Selling Stockholders, covenants and agrees as follows:
(a) The Company shall prepare the Prospectus in a form approved by the
Representatives and file such Prospectus pursuant to Rule 424(b) under the
Securities Act not later than the Commission's close of business on the
second business day following the execution and delivery of this Agreement,
or, if such second business day would be more than fifteen business days
after the Effective Date of the Registration Statement or any post-
effective amendment thereto, such earlier date as would permit such
Prospectus to be filed without filing a post-effective amendment as set
forth in Rule 430A(a)(3) under the Securities Act and shall promptly advise
the Representatives (i) when the Registration Statement shall have become
effective, (ii) when any amendment thereof or any related registration
statement filed with the Commission pursuant to Rule 462(b) of the Rules
shall have become effective, (iii) of any request by the Commission for any
amendment of the Registration Statement or the Prospectus or for any
additional information, (iv) of the prevention or suspension of the use of
any preliminary prospectus or the Prospectus or of the issuance by the
Commission of any stop order suspending the effectiveness of the
Registration Statement or the institution or threatening of any proceeding
for that purpose and (v) of the receipt by the Company of any notification
with respect to the suspension of the qualification of the Shares for sale
in any jurisdiction or the initiation or threatening of any proceeding for
such purpose. If contemplated by this Agreement, the Company shall prepare
and file with the Commission in conformity with the Securities Act and the
Rules a related registration statement pursuant to Rule 462(b) under the
Securities Act for the purpose of registering additional shares. The
Company shall not
- 20 -
file any amendment of the Registration Statement or amendment or supplement
to the Prospectus unless the Company has furnished the Representatives a
copy for its review prior to filing and shall not file any such proposed
amendment or supplement to which the Representatives reasonably object. The
Company shall use its best efforts to prevent the issuance of any such stop
order and, if issued, to obtain as soon as possible the withdrawal thereof.
(b) If, at any time when a prospectus relating to the Shares is required
to be delivered under the Securities Act and the Rules, any event occurs as
a result of which the Prospectus as then amended or supplemented would
include any untrue statement of a material fact or omit to state any
material fact necessary to make the statements therein in the light of the
circumstances under which they were made not misleading, or if it shall be
necessary to amend or supplement the Prospectus to comply with the
Securities Act or the Rules, the Company promptly shall prepare and file
with the Commission, subject to the third sentence of paragraph (a) of this
Section 6(A), an amendment or supplement which shall correct such statement
or omission or an amendment which shall effect such compliance.
(c) The Company shall make generally available to its security holders
and to the Representatives as soon as practicable, but not later than 45
days after the end of the 12-month period beginning at the end of the
fiscal quarter of the Company during which the Effective Date occurs (or 90
days if such 12-month period coincides with the Company's fiscal year), an
earnings statement (which need not be audited) of the Company, covering
such 12-month period, which shall satisfy the provisions of Section 11(a)
of the Securities Act or Rule 158 of the Rules.
(d) The Company shall furnish to the Representatives and counsel for the
Underwriters, without charge, signed copies of the Registration Statement
(including all exhibits thereto and amendments thereof) and to each other
Underwriter a copy of the Registration Statement (without exhibits thereto)
and all amendments thereof and, so long as delivery of a prospectus by an
Underwriter or dealer may be required by the Securities Act or the Rules,
as many copies of any preliminary prospectus and the Prospectus and any
amendments thereof and supplements thereto as the Representatives may
reasonably request.
(e) The Company and the Selling Stockholders shall cooperate with the
Representatives and their counsel in endeavoring to qualify the Shares for
offer and sale under the laws of such jurisdictions as the Representatives
may designate and shall maintain such qualifications in effect so long as
required for the distribution of the Shares; provided, however, that
neither the Company nor the Selling Stockholders shall be required in
connection therewith, as a condition thereof, to qualify as a foreign
corporation or to execute a general consent to service of process in any
jurisdiction or subject itself to taxation as doing business in any
jurisdiction.
- 21 -
(f) For a period of five years after the date of this Agreement, the
Company shall supply to the Representatives, and to each other Underwriter
who may so request in writing, copies of such financial statements and
other periodic and special reports as the Company may from time to time
distribute generally to the holders of any class of its capital stock and
to furnish to the Representatives a copy of each annual or other report it
shall be required to file with the Commission.
(g) Without the prior written consent of the Representatives, for a
period of 90 days after the date of this Agreement, the Company shall not
issue, sell or register with the Commission, or otherwise encumber or
dispose of, directly or indirectly, any equity securities of the Company
(or any securities convertible into or exercisable or exchangeable for
equity securities of the Company), except for (i) the issuance of the
Shares pursuant to the Registration Statement, (ii) the issuance of shares
pursuant to the exercise of outstanding options under the Company's
existing stock option plans, (iii) in connection with an acquisition by the
Company of another entity pursuant to which the Company sells or transfers
any of its shares of Common Stock to a third party as part or all of the
purchase price of such entity; provided, however, that prior to any sale or
transfer, the Company shall use commercially reasonable efforts to obtain
the agreement of such third party in writing with the Representatives that
it will not sell, offer to sell, distribute, pledge, grant any option for
the sale of, or otherwise dispose of, directly or indirectly, or encumber,
or exercise any registration rights with respect to, such shares of Common
Stock, any options or warrants to purchase any shares of Common Stock, or
any securities convertible into or exchangeable for shares of Common Stock
for the remainder of the 90 days after the date of this Agreement, and (iv)
the sale or transfer by the Company of shares of Common Stock in connection
with the hiring of officers or directors not previously employed by the
Company; provided, however, that prior to any sale or transfer, such
officer or director shall have agreed in writing with the Representatives
that he or she will not sell, offer to sell, distribute, pledge, grant any
option for the sale of, or otherwise dispose of, directly or indirectly, or
encumber, or exercise any registration rights with respect to, such shares
of Common Stock, any options or warrants to purchase any shares of Common
Stock, or any securities convertible into or exchangeable for shares of
Common Stock for the remainder of the 90 days after the date of this
Agreement.
(h) On or before completion of this offering, the Company shall make all
filings required under applicable securities laws and by the Nasdaq
National Market (including any required registration under the Exchange
Act).
(B) The Company agrees to pay, or reimburse if paid by the
Representatives, whether or not the transactions contemplated hereby are
consummated or this Agreement is terminated, all costs and expenses of the
Company and the Selling Stockholders incident to the public offering of the
Shares and the performance of the obligations of the Company under this
Agreement including those relating to (i) the preparation, printing, filing and
distribution of the
- 22 -
Registration Statement including all exhibits thereto, each preliminary
prospectus, the Prospectus, all amendments and supplements to the Registration
Statement and the Prospectus, and the printing, filing and distribution of this
Agreement; (ii) the preparation and delivery of certificates for the Shares to
the Underwriters; (iii) the registration or qualification of the Shares for
offer and sale under the securities or Blue Sky laws of the various
jurisdictions referred to in Section 6(A)(e), including the fees and
disbursements of counsel for the Underwriters in connection with such
registration and qualification and the preparation, printing, distribution and
shipment of preliminary and supplementary Blue Sky memoranda (it being
understood that the Company shall not be responsible for the fees and
disbursements of counsel for the Underwriters other than as described in this
Section 6(B)(iii)); (iv) the furnishing (including costs of shipping and
mailing) to the Representatives and to the Underwriters of copies of each
preliminary prospectus, the Prospectus and all amendments or supplements to the
Prospectus, and of the several documents required by this Section to be so
furnished, as may be reasonably requested for use in connection with the
offering and sale of the Shares by the Underwriters or by dealers to whom Shares
may be sold; (v) the filing fees of the National Association of Securities
Dealers, Inc. in connection with its review of the terms of the public offering;
(vi) the furnishing (including costs of shipping and mailing) to the
Representatives and to the Underwriters of copies of all reports and information
required by Section 6(A)(f); and (vii) inclusion of the Shares for quotation on
the Nasdaq National Market.
7. Indemnification.
---------------
(a) The Company and the Selling Stockholders agree to indemnify and hold
harmless each Underwriter and each person, if any, who controls any
Underwriter within the meaning of Section 15 of the Securities Act or
Section 20 of the Exchange Act against any and all losses, claims, damages
and liabilities, joint or several (including any reasonable investigation,
legal and other expenses incurred in connection with, and any amount paid
in settlement of, any action, suit or proceeding or any claim asserted), to
which they, or any of them, may become subject under the Securities Act,
the Exchange Act or other federal or state law or regulation, at common law
or otherwise, insofar as such losses, claims, damages or liabilities arise
out of or are based upon any untrue statement or alleged untrue statement
of a material fact contained in any preliminary prospectus, the
Registration Statement or the Prospectus or any amendment thereof or
supplement thereto, or arise out of or are based upon any omission or
alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading;
provided, however, that such indemnity shall not inure to the benefit of
any Underwriter (or any person controlling such Underwriter) on account of
any losses, claims, damages or liabilities arising from the sale of the
Shares to any person by such Underwriter (i) if such untrue statement or
omission or alleged untrue statement or omission was made in such
preliminary prospectus, the Registration Statement or the Prospectus, or
such amendment or supplement, in reliance upon and in conformity with
information furnished in writing to the Company by the Representatives on
behalf of any Underwriter specifically for use therein or, (ii) as to any
preliminary prospectus, with respect to any Underwriter, to the extent that
any such loss, claim,
- 23 -
damage or liability of such Underwriter results from an untrue statement of
a material fact contained in, or the omission of a material fact from, such
preliminary prospectus, which untrue statement or omission was corrected in
the Prospectus, if such Underwriter sold Shares to the person alleging such
loss, claim, damage or liability without sending or giving, at or prior to
the written confirmation of such sale, a copy of the Prospectus, unless
such failure resulted from the failure of the Company to deliver copies of
the Prospectus to such Underwriter on a timely basis to permit such sending
or giving; provided, further, that no Selling Stockholder shall be
responsible for losses, claims, damages or liabilities arising out of or
based upon such untrue statement or alleged untrue statement or omission
thereof based upon information other than information provided in writing
by such Selling Stockholder expressly for use in the Registration
Statement. This indemnity agreement will be in addition to any liability
which the Company or the Selling Stockholders may otherwise have.
(b) Each Underwriter agrees, severally and not jointly, to indemnify and
hold harmless the Company, the Selling Stockholders, each person, if any,
who controls the Company or the Selling Stockholders within the meaning of
Section 15 of the Securities Act or Section 20 of the Exchange Act, each
director of the Company, and each officer of the Company who signs the
Registration Statement, to the same extent as the foregoing indemnity from
the Company and the Selling Stockholders to each Underwriter, but only
insofar as such losses, claims, damages or liabilities arise out of or are
based upon any untrue statement or omission or alleged untrue statement or
omission which was made in any preliminary prospectus, the Registration
Statement or the Prospectus, or any amendment thereof or supplement
thereto, contained in the last paragraph of the cover page, in the
paragraph relating to stabilization or the paragraph relating to affiliate
transactions on the inside front cover page of the Prospectus and the
statements with respect to the public offering of the Shares under the
caption "Underwriting" in the Prospectus; provided, however, that the
obligation of each Underwriter to indemnify the Company or a Selling
Stockholder (including any controlling person, director or officer thereof)
shall be limited to the net proceeds received by the Company or such
Selling Stockholder from such Underwriter.
(c) Any party that proposes to assert the right to be indemnified under
this Section will, promptly after receipt of notice of commencement of any
action, suit or proceeding against such party in respect of which a claim
is to be made against an indemnifying party or parties under this Section,
notify each such indemnifying party of the commencement of such action,
suit or proceeding, enclosing a copy of all papers served. No
indemnification provided for in Section 7(a) or 7(b) shall be available to
any party who shall fail to give notice as provided in this Section 7(c) if
the party to whom notice was not given was unaware of the proceeding to
which such notice would have related and was prejudiced by the failure to
give such notice but the omission so to notify such indemnifying party of
any such action, suit or proceeding shall not relieve it from any liability
that it may have to any indemnified party for contribution or otherwise
than
- 24 -
under this Section. In case any such action, suit or proceeding shall be
brought against any indemnified party and it shall notify the indemnifying
party of the commencement thereof, the indemnifying party shall be entitled
to participate in, and, to the extent that it shall wish, jointly with any
other indemnifying party similarly notified, to assume the defense thereof,
with counsel reasonably satisfactory to such indemnified party, and after
notice from the indemnifying party to such indemnified party of its
election so to assume the defense thereof and the approval by the
indemnified party of such counsel, the indemnifying party shall not be
liable to such indemnified party for any legal or other expenses, except as
provided below and except for the reasonable costs of investigation
subsequently incurred by such indemnified party in connection with the
defense thereof. The indemnified party shall have the right to employ its
counsel in any such action, but the fees and expenses of such counsel shall
be at the expense of such indemnified party unless (i) the employment of
counsel by such indemnified party has been authorized in writing by the
indemnifying parties, (ii) the indemnified party shall have reasonably
concluded that there may be a conflict of interest between the indemnifying
parties and the indemnified party in the conduct of the defense of such
action (in which case the indemnifying parties shall not have the right to
direct the defense of such action on behalf of the indemnified party) or
(iii) the indemnifying parties shall not have employed counsel to assume
the defense of such action within a reasonable time after notice of the
commencement thereof, in each of which cases the fees and expenses of
counsel shall be at the expense of the indemnifying parties. An
indemnifying party shall not be liable for any settlement of any action,
suit, proceeding or claim effected without its written consent; provided,
however, that such consent shall not be unreasonably withheld.
8. Contribution. In order to provide for just and equitable
------------
contribution in circumstances in which the indemnification provided for in
Sections 7(a) and 7(b) is due in accordance with its terms but for any reason is
held to be unavailable from the Company or the Selling Stockholders or the
Underwriters, as the case may be, the Company, the Selling Stockholders and the
Underwriters shall contribute to the aggregate losses, claims, damages and
liabilities (including any investigation, legal and other expenses reasonably
incurred in connection with, and any amount paid in settlement of, any action,
suit or proceeding or any claims asserted, but after deducting any contribution
received by any person entitled hereunder to contribution from any person who
may be liable for contribution) to which the Company, the Selling Stockholders
and one or more of the Underwriters may be subject in such proportion as is
appropriate to reflect the relative benefits received by the Company and the
Selling Stockholders on the one hand and the Underwriters on the other from the
offering of the Shares or, if such allocation is not permitted by applicable law
or indemnification is not available as a result of the indemnifying party not
having received notice as provided in Section 7 hereof, in such proportion as is
appropriate to reflect not only the relative benefits referred to above but also
the relative fault of the Company and the Selling Stockholders on the one hand
and the Underwriters on the other in connection with the statements or omissions
which resulted in such losses, claims, damages, liabilities or expenses, as well
as any other relevant equitable considerations. The relative benefits received
by the Company, the Selling Stockholders and the Underwriters shall be deemed to
be in the same proportion as (x) the total
- 25 -
proceeds from the offering (net of underwriting discounts but before deducting
expenses) received by the Company or the Selling Stockholders, as set forth in
the table on the cover page of the Prospectus, bear to (y) the underwriting
discounts received by the Underwriters, as set forth in the table on the cover
page of the Prospectus. The relative fault of the Company, the Selling
Stockholders and the Underwriters shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement or omission or
alleged omission of a material fact related to information supplied by the
Company, the Selling Stockholders or the Underwriters and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission. The Company, the Selling Stockholders and the
Underwriters agree that it would not be just and equitable if contribution
pursuant to this Section 8 were determined by pro rata allocation (even if the
Underwriters were treated as one entity for such purpose) or by any other method
of allocation which does not take account of the equitable considerations
referred to above. Notwithstanding the provisions of this Section 8, (i) in no
case shall any Underwriter (except as may be provided in the Agreement Among
Underwriters) be liable or responsible for any amount in excess of the
underwriting discount applicable to the Shares purchased by such Underwriter
hereunder, and (ii) the Company and the Selling Stockholders shall be liable and
responsible for any amount in excess of such underwriting discount; provided,
however, that no person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. For purposes of this Section 8, each person, if any, who
controls an Underwriter within the meaning of Section 15 of the Securities Act
or Section 20(a) of the Exchange Act shall have the same rights to contribution
as such Underwriter, and each person, if any, who controls the Company or a
Selling Stockholder within the meaning of the Section 15 of the Securities Act
or Section 20(a) of the Exchange Act, each officer of the Company who shall have
signed the Registration Statement and each director of the Company shall have
the same rights to contribution as the Company or such Selling Stockholder, as
the case may be, subject in each case to clauses (i) and (ii) in the immediately
preceding sentence of this Section 8. Any party entitled to contribution will,
promptly after receipt of notice of commencement of any action, suit or
proceeding against such party in respect of which a claim for contribution may
be made against another party or parties under this Section, notify such party
or parties from whom contribution may be sought, but the failure so to notify
such party or parties from whom contribution may be sought shall not relieve the
party or parties from whom contribution may be sought from any other obligation
it or they may have hereunder or otherwise than under this Section. No party
shall be liable for contribution with respect to any action, suit, proceeding or
claim settled without its written consent. The Underwriter's obligations to
contribute pursuant to this Section 8 are several in proportion to their
respective underwriting commitments and not joint.
Notwithstanding any other provision of Section 7 or Section 8 hereof,
(i) in no event shall any Selling Stockholder be required to pay an aggregate
amount of contribution or other payments in respect of losses, expenses,
liabilities or claims under this Section 8 which would be greater than the
aggregate amount such Selling Stockholder would have been required to pay under
Section 7 in respect of such losses, expenses, liabilities or claims if such
indemnification were available, and (ii) none of the Selling Stockholders shall
be liable for indemnification or contribution
- 26 -
payments or any other payments under Section 7 or Section 8 hereof in an
aggregate amount exceeding the net proceeds received by such Selling Stockholder
from the sale of Shares hereunder.
9. Termination. This Agreement may be terminated with respect to
-----------
the Shares to be purchased on a Closing Date by the Representatives by notifying
the Company at any time
(a) in the absolute discretion of the Representatives at or before any
Closing Date: (i) if on or prior to such date, any domestic or
international event or act or occurrence has materially disrupted, or in
the opinion of the Representatives will in the future materially disrupt,
the securities markets; (ii) if there has occurred any new outbreak or
material escalation of hostilities or other calamity or crisis the effect
of which on the financial markets of the United States is such as to make
it, in the judgment of the Representatives, inadvisable to proceed with the
offering; (iii) if there shall be such a material adverse change in general
financial, political or economic conditions or the effect of international
conditions on the financial markets in the United States is such as to make
it, in the judgment of the Representatives, inadvisable or impracticable to
market the Shares; (iv) if trading in the Shares has been suspended by the
Commission or trading generally on the New York Stock Exchange, Inc. or on
the American Stock Exchange, Inc. has been suspended or limited, or minimum
or maximum ranges for prices for securities shall have been fixed, or
maximum ranges for prices for securities have been required, by said
exchanges or by order of the Commission, the National Association of
Securities Dealers, Inc., or any other governmental or regulatory
authority; or (v) if a banking moratorium has been declared by any state or
federal authority, or
(b) at or before any Closing Date, that any of the conditions specified
in Section 5 shall not have been fulfilled when and as required by this
Agreement.
If this Agreement is terminated pursuant to any of its provisions,
neither the Company nor the Selling Stockholders shall be under any liability to
any Underwriter, and no Underwriter shall be under any liability to the Company
or the Selling Stockholders, except that (y) if this Agreement is terminated by
the Representatives or the Underwriters because of any failure, refusal or
inability on the part of the Company or a Selling Stockholder to comply with the
terms or to fulfill any of the conditions of this Agreement, the Company will,
upon the request of the Representatives, reimburse the Underwriters for all out-
of-pocket expenses (including the fees and disbursements of their counsel)
incurred by them in connection with the proposed purchase and sale of the Shares
or in contemplation of performing their obligations hereunder and (z) no
Underwriter who shall have failed or refused to purchase the Shares agreed to be
purchased by it under this Agreement, without some reason sufficient hereunder
to justify cancellation or termination of its obligations under this Agreement,
shall be relieved of liability to the Company, the Selling Stockholders or to
the other Underwriters for damages occasioned by its failure or refusal.
10. Substitution of Underwriters. If one or more of the
----------------------------
Underwriters shall fail (other than for a reason sufficient to justify the
cancellation or termination of this Agreement under
- 27 -
Section 9) to purchase on any Closing Date the Shares agreed to be purchased on
such Closing Date by such Underwriter or Underwriters, the Representatives may
find one or more substitute underwriters to purchase such Shares or make such
other arrangements as the Representatives may deem advisable or one or more of
the remaining Underwriters may agree to purchase such Shares in such proportions
as may be approved by the Representatives, in each case upon the terms set forth
in this Agreement. If no such arrangements have been made by the close of
business on the business day following such Closing Date,
(a) if the number of Shares to be purchased by the defaulting
Underwriters on such Closing Date shall not exceed 10% of the Shares that
all the Underwriters are obligated to purchase on such Closing Date, then
each of the nondefaulting Underwriters shall be obligated to purchase such
Shares on the terms herein set forth in proportion to their respective
obligations hereunder; provided, that in no event shall the maximum number
of Shares that any Underwriter has agreed to purchase pursuant to Section 1
be increased pursuant to this Section 10 by more than one-ninth of such
number of Shares without the written consent of such Underwriter, or
(b) if the number of Shares to be purchased by the defaulting
Underwriters on such Closing Date shall exceed 10% of the Shares that all
the Underwriters are obligated to purchase on such Closing Date, then the
Company shall be entitled to an additional business day within which it
may, but is not obligated to, find one or more substitute underwriters
reasonably satisfactory to the Representatives to purchase such Shares upon
the terms set forth in this Agreement.
In any such case, either the Representatives or the Company shall have
the right to postpone the applicable Closing Date for a period of not more than
five business days in order that necessary changes and arrangements (including
any necessary amendments or supplements to the Registration Statement or
Prospectus) may be effected by the Representatives and the Company. If the
number of Shares to be purchased on such Closing Date by such defaulting
Underwriter or Underwriters shall exceed 10% of the Shares that all the
Underwriters are obligated to purchase on such Closing Date, and none of the
nondefaulting Underwriters or the Company shall make arrangements pursuant to
this Section within the period stated for the purchase of the Shares that the
defaulting Underwriters agreed to purchase, this Agreement shall terminate with
respect to the Shares to be purchased on such Closing Date without liability on
the part of any nondefaulting Underwriter to the Company or the Selling
Stockholders and without liability on the part of the Company and the Selling
Stockholders, except in both cases as provided in Sections 6(B), 7, 8 and 9.
The provisions of this Section shall not in any way affect the liability of any
defaulting Underwriter to the Company, the Selling Stockholders or the
nondefaulting Underwriters arising out of such default. A substitute
underwriter hereunder shall become an Underwriter for all purposes of this
Agreement.
11. Miscellaneous. The respective agreements, representations,
-------------
warranties, indemnities and other statements of the Company or its officers, of
the Selling Stockholders and of
- 28 -
the Underwriters set forth in or made pursuant to this Agreement shall remain in
full force and effect, regardless of any investigation made by or on behalf of
any Underwriter, any Selling Stockholder or the Company or any of the officers,
directors or controlling persons referred to in Sections 7 and 8 hereof, and
shall survive delivery of and payment for the Shares. The provisions of Sections
6(B), 7, 8 and 9 shall survive the termination or cancellation of this
Agreement.
This Agreement has been and is made for the benefit of the
Underwriters, the Company and the Selling Stockholders and their respective
successors and assigns, and, to the extent expressed herein, for the benefit of
persons controlling any of the Underwriters, the Company or the Selling
Stockholders, and directors and officers of the Company, the Selling
Stockholders, if any, and their respective successors and assigns, and no other
person shall acquire or have any right under or by virtue of this Agreement.
The term "successors and assigns" shall not include any purchaser of Shares from
any Underwriter merely because of such purchase.
All notices and communications hereunder shall be in writing and
mailed or delivered or by telephone or telegraph if subsequently confirmed in
writing, (a) if to the Representatives, c/o CIBC Oppenheimer Corp., CIBC
Xxxxxxxxxxx Xxxxx, Xxxxx Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 Attention:
Xxxxxxxx X. Xxxxxxxx, (b) if to the Company, to its agent for service as such
agent's address appears on the cover page of the Registration Statement and (c)
if to the Selling Stockholders, to the address set forth in the Custody
Agreement and Power of Attorney.
This Agreement shall be governed by and construed in accordance with
the laws of the State of New York.
- 29 -
This Agreement may be signed in any number of counterparts, each of
which shall be an original, with the same effect as if the signatures thereto
and hereto were upon the same instrument.
Please confirm that the foregoing correctly sets forth the agreement
among us.
Very truly yours,
AMERICAN DISPOSAL SERVICES, INC.
By
---------------------------------------
Name:
Title:
THE SELLING STOCKHOLDERS NAMED
ON SCHEDULE II HERETO
By
---------------------------------------
Name:
Title: Attorney-in-fact
Confirmed:
CIBC XXXXXXXXXXX CORP.
XXXXXXXXX, XXXXXX & XXXXXXXX
SECURITIES CORPORATION
Acting severally on behalf of itself
and as representative of the several
Underwriters named in Schedule I annexed
hereto.
By CIBC Xxxxxxxxxxx Corp.
By
----------------------------------------
Name: Xxxxxxxx X. Xxxxxxxx
Title: Managing Director
- 30 -
SCHEDULE I
NUMBER OF
FIRM SHARES TO
NAME BE PURCHASED
----------------------------------------------------- --------------
Xxxxxxxxxxx & Co., Inc. ..............................
Xxxxxxxxx, Xxxxxx & Xxxxxxxx Securities Corporation...
Total ........................................... 4,000,000
=========
- i -
SCHEDULE II
SELLING STOCKHOLDERS
Number of Firm Shares
---------------------
Name to be Purchased
---- ---------------
Charterhouse Environmental 933,528
Holdings, L.L.C.
Charterhouse Equity Partners 1,253,389
II, L.P.
CDI Equity, LLC 322,014
Chef Nominees Limited 2,440
---------
Total 2,511,371
- ii -
SCHEDULE III
Subsidiary State of Incorporation
---------- ----------------------
County Disposal, Inc. Delaware
American Disposal Services of Kansas, Inc. Kansas
American Disposal Services of Illinois, Inc. Delaware
County Disposal (Ohio), Inc. Delaware
County Landfill, Inc. Delaware
Southwest Waste, Inc. Missouri
Xxxx'x Transfer Systems, Inc. Missouri
Xxxxxx Phase II, Inc. Ohio
Allied Waste Systems, Inc. Ohio
Xxxx Bros. Waste and Recycling Co., Inc. Ohio
Illinois Bulk Handlers, Inc. Illinois
Shred-All Recycling Systems, Inc. Illinois
Xxxx X. Xxxxxxx Trucking Co., Inc. Illinois
Environtech, Inc. Delaware
ADS, Inc. Oklahoma
Pittsburgh County Landfill, Inc. Oklahoma
American Disposal Services of Missouri, Inc. Oklahoma
T & G Disposal, Inc. Indiana
ADS (Illinois), Inc. Illinois
- iii -
Sunset Disposal, Inc. Kansas
Resource Recovery, Inc. Kansas
Oklahoma Refuse, Inc. Oklahoma
- iv -
