1
10,000,000 SHARES
USA WASTE SERVICES, INC.
COMMON STOCK
UNDERWRITING AGREEMENT
February 3, 1997
DONALDSON, LUFKIN & JENRETTE
SECURITIES CORPORATION
DEUTSCHE MORGAN GRENFELL INC.
GOLDMAN, SACHS & CO.
MERRILL LYNCH, PIERCE,
FENNER & SMITH INCORPORATED
As representatives of the
several underwriters
named in Schedule I hereto
c/o Donaldson, Lufkin & Jenrette
Securities Corporation
277 Park Avenue
New York, New York 10172
Dear Sirs:
USA Waste Services, Inc., a Delaware corporation (the "Company"),
proposes to issue and sell 10,000,000 shares of its common stock, $.01 par
value (the "Firm Shares"), to the several underwriters named in Schedule I
hereto (the "Underwriters"). The Company also proposes to issue and sell to
the several Underwriters not more than 1,500,000 additional shares of common
stock, $.01 par value, of the Company (the "Additional Shares"), if requested
by the Underwriters as provided in Section 2 hereof. The Firm Shares and the
Additional Shares are herein collectively called the Shares. The shares of
common stock of the Company to be outstanding after giving effect to the sales
contemplated hereby are hereinafter referred to as the Common Stock.
1. Registration Statement and Prospectus. The Company has
prepared and filed with the Securities and Exchange Commission (the
"Commission") in accordance with the provisions of the Securities Act of 1933,
as amended, and the rules and regulations of the Commission thereunder
(collectively called the "Act"), a registration statement on Form S-3
(Registration No. 333-17453), including a prospectus relating to the Shares,
which may be amended. The registration statement as amended at the time when
it became effective, including all documents or information incorporated or
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deemed to be incorporated by reference therein is referred to as the
"Registration Statement"; and the prospectus in the form first used to confirm
sales of Shares, (including (a) the information contained in any prospectus
supplement relating to the Shares or deemed to be part of the Registration
Statement at effectiveness pursuant to Rule 430A or Rule 434 of the Act, and
(b) any documents or information incorporated or deemed to be incorporated by
reference into such prospectus), are hereinafter referred to as the
"Prospectus." Any registration statement (including any amendment or
supplement thereto or information which is deemed to be a part thereof) filed
by the Company under Rule 462(b) of the Act (a "Rule 462(b) Registration
Statement") shall be deemed to be a part of the Registration Statement. If the
Company elects to rely on Rule 434 under the Act, all references to the
Prospectus shall be deemed to also include, without limitation, the form of
prospectus and term sheet (a "Term Sheet"), taken together, provided to the
Underwriters by the Company in reliance on Rule 434 under the Act (the "Rule
434 Prospectus"). All references in this Agreement to financial statements and
schedules and other information which is "contained," "included," "described"
or "stated" in the Registration Statement or the Prospectus (and all references
of like import) shall be deemed to mean and include all such financial
statements and schedules and other information which is or is deemed to be
incorporated by reference in the Registration Statement or the Prospectus, as
the case may be; and all references in this Agreement to amendments or
supplements to the Registration Statement or the Prospectus shall be deemed to
mean and include, without limitation, even through not specifically stated, any
document filed under the Exchange Act of 1934, as amended, and the rules and
regulations of the Commission thereunder (the "Exchange Act") which is or is
deemed to be incorporated by reference in the Registration Statement or the
Prospectus after the effective date, as the case may be.
2. Agreements to Sell and Purchase. On the basis of the
representations and warranties contained in this Agreement, and subject to its
terms and conditions, the Company agrees to issue and sell 10,000,000 Firm
Shares, and each Underwriter agrees, severally and not jointly, to purchase
from the Company at a price per share of $33.725 (the "Purchase Price") the
number of Firm Shares set forth opposite the name of such Underwriter in
Schedule I hereto.
On the basis of the representations and warranties contained in this
Agreement, and subject to its terms and conditions, (i) the Company agrees to
issue and sell up to 1,500,000 Additional Shares and (ii) the Underwriters
shall have the right to purchase, severally and not jointly, up to an aggregate
1,500,000 Additional Shares from the Company at the Purchase Price. Additional
Shares may be purchased solely for the purpose of covering over-allotments made
in connection with the offering of the Firm Shares. The Underwriters may
exercise their right to purchase Additional Shares in whole or in part from
time to time by giving written notice thereof to the Company within 30 days
after the date of this Agreement. You shall give any such notice on behalf of
the Underwriters and such notice shall specify the aggregate number of
Additional Shares to be purchased pursuant to such exercise and the date for
payment and delivery thereof. The date specified in any such notice shall be a
business day (i) no earlier than the Closing Date (as hereinafter defined),
(ii) no later than ten business days after such notice has been given and (iii)
no earlier than two business days after such notice has been given. If any
Additional Shares are to be purchased, each Underwriter, severally and not
jointly, agrees to purchase from the Company the number of Additional Shares
(subject to such adjustments to eliminate fractional shares as you may
determine) which bears the same proportion to the total number of Additional
Shares
USA WASTE SERVICES, INC.
UNDERWRITING AGREEMENT -- COMMON STOCK
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to be purchased from the Company as the number of Firm Shares set forth
opposite the name of such Underwriter in Schedule I bears to the total number
of Firm Shares.
Except pursuant to the concurrent offering of convertible subordinated
notes of the Company, the Company hereby agrees and the Company shall,
concurrently with the execution of this Agreement, deliver an agreement
executed by each of the directors and executive officers of the Company,
pursuant to which each such person agrees, not to offer, sell, contract to
sell, grant any option to purchase, or otherwise dispose of any common stock of
the Company or any securities convertible into or exercisable or exchangeable
for such common stock or in any other manner transfer all or a portion of the
economic consequences associated with the ownership of any such common stock,
except to the Underwriters pursuant to this Agreement, for a period of 90 days
after the date of the Prospectus without the prior written consent of
Donaldson, Lufkin & Jenrette Securities Corporation. Notwithstanding the
foregoing, (i) 250,000 shares of the shares of Common Stock owned by Donald F.
Moorehead, Jr. and 500,000 shares of the shares of Common Stock owned by John
G. Rangos, Sr. and Alexander Rangos will not be subject to the foregoing
restriction and during such 90-day period (ii) the Company may grant stock
options pursuant to the Company's existing director and employee benefit plans,
(iii) the Company may issue shares of its common stock pursuant to existing
contractual obligations or upon the exercise of an option or warrant or the
conversion of a security outstanding on the date hereof and (iv) the Company
may issue shares of its common stock as consideration in the acquisition of
businesses or assets by the Company or its subsidiaries.
3. Terms of Public Offering. The Company is advised by you that
the Underwriters propose (i) to make a public offering of their respective
portions of the Shares as soon after the effective date of the Registration
Statement as in your judgment is advisable and (ii) initially to offer the
Shares upon the terms set forth in the Prospectus.
4. Delivery and Payment. Delivery to the Underwriters of and
payment for the Firm Shares shall be made at 10:00 A.M., New York City time, on
the third or fourth business day unless otherwise permitted by the Commission
pursuant to Rule 15c6-1 of the Exchange Act (the "Closing Date") following the
date of the initial public offering at such place as you shall designate. The
Closing Date and the location of delivery of and the form of payment for the
Firm Shares may be varied by agreement between you and the Company.
Delivery to the Underwriters of and payment for any Additional Shares
to be purchased by the Underwriters shall be made at such place as you shall
designate at 10:00 A.M., New York City time, on the date specified in the
applicable exercise notice given by you pursuant to Section 2 (an "Option
Closing Date"). Any such Option Closing Date and the location of delivery of
and the form of payment for such Additional Shares may be varied by agreement
between you and the Company.
Certificates for the Shares shall be registered in such names and
issued in such denominations as you shall request in writing not later than two
full business days prior to the Closing Date or an Option Closing Date, as the
case may be. Such certificates shall be made available to you for inspection
not later than 9:30 A.M., New York City time, on the business day next
preceding the Closing Date or an Option Closing Date, as the case may be.
Certificates in definitive form evidencing the Shares shall
USA WASTE SERVICES, INC.
UNDERWRITING AGREEMENT -- COMMON STOCK
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be delivered to you on the Closing Date or the applicable Option Closing Date,
as the case may be, with any transfer taxes thereon duly paid by the Company,
for the respective accounts of the several Underwriters, against payment of the
Purchase Price therefor by wire transfer in same day funds to an account
specified by the Company.
5. Agreements of the Company. The Company agrees with you:
(a) Immediately following the determination of the
Purchase Price, to prepare, and file or transmit for filing with the
Commission in accordance with Rule 424(b) of the Act, copies of a
prospectus supplement relating to the Shares and containing all
information required under the Act.
(b) To advise you promptly and, if requested by you, to
confirm such advice in writing, (i) when the Registration Statement
has become effective and when any post-effective amendment to it
becomes effective, (ii) of the receipt of comments from the Commission
relating to the Registration Statement, (iii) of any request by the
Commission for amendments to the Registration Statement or amendments
or supplements to the Prospectus or for additional information, (iv)
of the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or of the suspension of
qualification of the Shares for offering or sale in any jurisdiction,
or the initiation of any proceeding for such purposes, and (v) of the
happening of any event during the period referred to in paragraph (e)
below which makes any statement of a material fact made in the
Registration Statement or the Prospectus untrue or which requires the
making of any additions to or changes in the Registration Statement or
the Prospectus in order to make the statements therein not misleading.
If at any time the Commission shall issue any stop order suspending
the effectiveness of the Registration Statement, the Company will make
every reasonable effort to obtain the withdrawal or lifting of such
order at the earliest possible time.
(c) To furnish to you, without charge, five signed copies
of the Registration Statement as first filed with the Commission and
of each amendment to it, including all exhibits, and to furnish to you
and each Underwriter designated by you such number of conformed copies
of the Registration Statement as so filed and of each amendment to it,
without exhibits, as you may reasonably request.
(d) Prior to the termination of the offering of the
Shares, not to (i) file any 462(b) Registration Statement, (ii) file
any amendment or supplement to the Registration Statement, (iii) file
any document under the Exchange Act which shall be deemed to be
incorporated by reference into the Prospectus, or (iv) make any
amendment or supplement to the Prospectus (including the issuance or
filing of any Term Sheet) of which you shall not previously have been
advised or to which you shall reasonably object; and to prepare and
file with the Commission, promptly upon your reasonable request, any
462(b) Registration Statement, Term Sheet or amendment or supplement
to the Registration Statement or the Prospectus which may be necessary
or advisable in connection with the distribution of the Shares by you,
and to use its best efforts to cause the same to become promptly
effective.
USA WASTE SERVICES, INC.
UNDERWRITING AGREEMENT -- COMMON STOCK
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(e) From time to time for such period as in the opinion
of counsel for the Underwriters a prospectus is required by law to be
delivered in connection with sales by an Underwriter or a dealer, to
furnish to each Underwriter and dealer as many copies of the
Prospectus (and of any amendment or supplement to the Prospectus) as
such Underwriter or dealer may reasonably request.
(f) If during the period specified in paragraph (e) any
event shall occur as a result of which, in the opinion of counsel for
the Underwriters, it becomes necessary to amend or supplement the
Prospectus in order to make the statements therein, in the light of
the circumstances when the Prospectus is delivered to a purchaser, not
misleading, or if it is necessary to amend or supplement the
Prospectus to comply with any law, forthwith to prepare and file with
the Commission an appropriate amendment or supplement to the
Prospectus so that the statements in the Prospectus, as so amended or
supplemented, will not, in the light of the circumstances when it is
so delivered, be misleading, or so that the Prospectus will comply
with law, and to furnish to each Underwriter and to such dealers as
you shall specify, such number of copies thereof as such Underwriter
or dealers may reasonably request.
(g) Prior to any public offering of the Shares, to
cooperate with you and counsel for the Underwriters in connection with
the registration or qualification of the Shares for offer and sale by
the several Underwriters and by dealers under the state securities or
Blue Sky laws of such jurisdictions as you may request, to continue
such qualification in effect so long as required for distribution of
the Shares and to file such consents to service of process or other
documents as may be necessary in order to effect such registration or
qualification.
(h) To mail and make generally available to its
stockholders as soon as reasonably practicable an earnings statement
covering a period of at least twelve months after the Closing Date of
the Registration Statement (but in no event commencing later than 90
days after such date) which shall satisfy the provisions of Section
11(a) of the Act.
(i) During the period of five years after the date of
this Agreement, (i) to mail as soon as reasonably practicable after
the end of each fiscal year to the record holders of its Common Stock
a financial report of the Company and its subsidiaries on a
consolidated basis (and a similar financial report of all
unconsolidated subsidiaries, if any), all such financial reports to
include a consolidated balance sheet, a consolidated statement of
operations, a consolidated statement of cash flows and a consolidated
statement of shareholders' equity as of the end of and for such fiscal
year, together with comparable information as of the end of and for
the preceding year, certified by independent certified public
accountants, and (ii) to make generally available as soon as
practicable after the end of each quarterly period (except for the
last quarterly period of each fiscal year) to such holders, a
consolidated balance sheet, a consolidated statement of operations and
a consolidated statement of cash flows (and similar financial reports
of all unconsolidated subsidiaries, if any) as of the end of and for
such period, and for the period from the beginning of such year to the
close of such quarterly period, together with comparable information
for the corresponding periods of the preceding year.
USA WASTE SERVICES, INC.
UNDERWRITING AGREEMENT -- COMMON STOCK
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(j) During the period referred to in paragraph (i), to
furnish to you as soon as available a copy of each report or other
publicly available information of the Company mailed to the holders of
Common Stock or filed with the Commission and such other publicly
available information concerning the Company and its subsidiaries as
you may reasonably request.
(k) To pay all costs, expenses, fees and taxes incident
to (i) the preparation, printing, filing and distribution under the
Act of the Registration Statement (including financial statements and
exhibits), each preliminary prospectus related to the Shares and all
amendments and supplements to any of them prior to or during the
period specified in paragraph (e), (ii) the printing and delivery of
the Prospectus and all amendments or supplements to it during the
period specified in paragraph (e), (iii) the printing and delivery of
this Agreement, the Preliminary and Supplemental Blue Sky Memoranda,
(iv) the registration or qualification of the Shares for offer and
sale under the securities or Blue Sky laws of the several states
(including in each case the fees and disbursements of counsel for the
Underwriters relating to such registration or qualification and
memoranda relating thereto), (v) the listing of the Shares on the New
York Stock Exchange, and (vi) furnishing such copies of the
Registration Statement, the Prospectus and all amendments and
supplements thereto as may be requested for use in connection with the
offering or sale of the Shares by the Underwriters or by dealers to
whom Shares may be sold.
(l) To use its best efforts to maintain the listing of
the Common Stock on the New York Stock Exchange for a period of five
years after the effective date of the Registration Statement.
(m) To use its best efforts to do and perform all things
required or necessary to be done and performed under this Agreement by
the Company prior to the Closing Date or any Option Closing Date, as
the case may be, and to satisfy all conditions precedent to the
delivery of the Shares.
(n) To use the net proceeds received by it from the sale
of Shares in the manner specified in the Prospectus under "Use of
Proceeds."
6. Representations and Warranties of the Company. The Company
represents and warrants to each Underwriter that:
(a) The Company meets the requirements for use of Form
S-3; the Registration Statement has become effective; no stop order
suspending the effectiveness of the Registration Statement is in
effect, and no proceedings for such purpose are pending before or have
been threatened by the Commission.
(b) At the time the Registration Statement, any 462(b)
Registration Statement or any post-effective amendment to the
Registration Statement became or becomes effective, on the date that
any amendment or supplement to the Prospectus is filed with the
Commission, and at the Closing Date, and if later, the Option Closing
Date, (i) each part of the Registration
USA WASTE SERVICES, INC.
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Statement, when such part became effective, did not contain and each
such part, as amended or supplemented, if applicable, will not contain
any untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements
therein not misleading, (ii) the Registration Statement and the
Prospectus comply and, as amended or supplemented, if applicable, will
comply in all material respects with the Act and (iii) the Prospectus
did not and does not contain and, as amended or supplemented, if
applicable, will not contain any untrue statement of a material fact
or omit to state a material fact necessary to make the statements
therein, in the light of the circumstances under which they were made,
not misleading, except that the representations and warranties set
forth in this paragraph (b) do not apply to statements or omissions in
the Registration Statement or the Prospectus based upon information
relating to any Underwriter furnished to the Company in writing by
such Underwriter through you expressly for use therein.
(c) Any term sheet or prospectus subject to completion
provided by the Company to the Underwriters for use in connection with
the offering and sale of the Shares pursuant to Rule 434 under the Act
together are not materially different from the prospectus included in
the Registration Statement (exclusive of any information deemed a part
thereof by virtue of Rule 434(d)). The documents incorporated or
deemed to be incorporated by reference in the Prospectus pursuant to
Item 12 of Form S-3 under the Act, at the time they were, or hereafter
are, filed with the Commission, complied and will comply in all
material respects with the requirements of the Exchange Act, and, when
read together with other information in the Prospectus, at the time
the Registration Statement became effective and as of the Closing Date
and, if later, the Option Closing Date, and during the period
specified in Section 5(e), did not and will not contain an untrue
statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein, in
the light of the circumstances under which they were made, not
misleading.
(d) Each preliminary prospectus filed as part of the
registration statement as originally filed or as part of any amendment
thereto, or filed pursuant to Rule 424 under the Act, and each Rule
462(b) Registration Statement, if any, complied when so filed in all
material respects with the Act; and did not contain an untrue
statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein, in
the light of the circumstances under which they were made, not
misleading.
(e) Annex I is an accurate and complete list of all
subsidiaries of the Company (the "Material Subsidiaries") which
accounted for more than $70.0 million of revenues during fiscal 1996
or which, as of December 31, 1996, had assets in excess of $125
million. The Company and each of its subsidiaries has been duly
incorporated, is validly existing as a corporation in good standing
under the laws of its jurisdiction of incorporation and has the
corporate power and authority to carry on its business as it is
currently being conducted and to own, lease and operate its
properties, and each is duly qualified and is in good standing as a
foreign corporation authorized to do business in each jurisdiction in
which the nature of its business or its ownership or leasing of
property requires such qualification, except where the failure to be
so qualified would not have a material adverse effect on the Company
and its subsidiaries, taken as a whole.
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UNDERWRITING AGREEMENT -- COMMON STOCK
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(f) All of the outstanding shares of capital stock of, or
other ownership interests in, each of the Company's subsidiaries have
been duly authorized and validly issued and are fully paid and
non-assessable, and are owned by the Company, free and clear of any
security interest, claim, lien, encumbrance or adverse interest of any
nature (other than liens created under the Credit Facility (as defined
in the Registration Statement)).
(g) All the outstanding shares of capital stock of the
Company have been duly authorized and validly issued and are fully
paid, non-assessable and not subject to any preemptive or similar
rights; and the Shares have been duly authorized and, when issued and
delivered to the Underwriters against payment therefor as provided by
this Agreement, will be validly issued, fully paid and non-assessable,
and the issuance of such Shares will not be subject to any preemptive
or similar rights. Upon payment of the Purchase Price and delivery of
certificates representing the Shares, each of the Underwriters will
receive the Shares free and clear of all liens, security interests or
encumbrances.
(h) The authorized capital stock of the Company,
including the Common Stock, conforms as to legal matters to the
description thereof included in the Prospectus.
(i) Neither the Company nor any of its subsidiaries is in
violation of its respective charter or by-laws or in default in the
performance of any obligation, agreement or condition contained in any
bond, debenture, note or any other evidence of indebtedness or in any
other agreement, indenture or instrument material to the conduct of
the business of the Company and its subsidiaries, taken as a whole, to
which the Company or any of its subsidiaries is a party or by which it
or any of its subsidiaries or their respective property is bound.
(j) The execution, delivery and performance of this
Agreement, compliance by the Company with all the provisions hereof
and the consummation of the transactions contemplated hereby will not
require any consent, approval, authorization or order of any court,
regulatory body, administrative agency or other governmental body
(except such as may be required under the securities or Blue Sky laws
of the various states or jurisdictions outside the United States) and
will not conflict with or constitute a breach of any of the terms or
provisions of, or a default under, the charter or by-laws of the
Company or any of its subsidiaries or any agreement, indenture or
other instrument to which it or any of its subsidiaries is a party or
by which it or any of its subsidiaries or their respective property is
bound, or violate or conflict with any laws, administrative
regulations or rulings or court decrees applicable to the Company, any
of its subsidiaries or their respective property.
(k) Except as otherwise set forth in the Prospectus,
there are no material legal or governmental proceedings pending to
which the Company or any of its subsidiaries is a party or of which
any of their respective property is the subject, and, to the Company's
knowledge, no such proceedings are threatened or contemplated. No
material development has occurred with respect to the legal
proceedings described in the Registration Statement. No contract or
document of a character required to be described in the Registration
Statement or the Prospectus or to be filed as an exhibit to the
Registration Statement is not so described or filed as required.
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UNDERWRITING AGREEMENT -- COMMON STOCK
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(l) Neither the Company nor any of its subsidiaries has
violated any foreign, federal, state or local law or regulation
relating to the protection of human health and safety, the environment
or hazardous or toxic substances or wastes, pollutants or contaminants
("Environmental Laws"), nor any federal or state law relating to
discrimination in the hiring, promotion or pay of employees nor any
applicable federal or state wages and hours laws, nor any provisions
of the Employee Retirement Income Security Act or the rules and
regulations promulgated thereunder, which in each case might result in
any material adverse change in the business, prospects, financial
condition or results of operation of the Company and its subsidiaries,
taken as a whole.
(m) The Company and each of its subsidiaries has such
permits, licenses, franchises and authorizations of governmental or
regulatory authorities ("permits"), including, without limitation,
under any applicable Environmental Laws, as are necessary to own,
lease and operate its respective properties and to conduct its
business as currently being conducted and as the Company expects it to
be conducted except where the failure to have such permits would not
have a material adverse effect on the Company and its subsidiaries,
taken as a whole; the Company and each of its subsidiaries has
fulfilled and performed all of its material obligations with respect
to such permits and no event has occurred which allows, or after
notice or lapse of time would allow, revocation or termination thereof
or results in any other material impairment of the rights of the
holder of any such permit; and, except as described in the Prospectus,
such permits contain no restrictions that are materially burdensome to
the Company or any of its subsidiaries.
(n) In the ordinary course of its business, the Company
conducts a periodic review of the effect of Environmental Laws on the
business, operations and properties of the Company and its
subsidiaries, in the course of which it identifies and evaluates
associated costs and liabilities (including, without limitation, any
capital or operating expenditures required for clean-up, closure of
properties or compliance with Environmental Laws or any permit,
license or approval, any related constraints on operating activities
and any potential liabilities to third parties). On the basis of such
review, the Company has reasonably concluded that such associated
costs and liabilities would not, except to the extent properly accrued
for in the Company's financial statements, singly or in the aggregate,
have a material adverse effect on the Company and its subsidiaries,
taken as a whole.
(o) Except as otherwise set forth in the Prospectus or
such as are not material to the business, prospects, financial
condition or results of operation of the Company and its subsidiaries,
taken as a whole, the Company and each of its subsidiaries has good
and marketable title, free and clear of all liens, claims,
encumbrances and restrictions except liens for taxes not yet due and
payable, to all property and assets described in the Registration
Statement as being owned by it. All leases to which the Company or
any of its subsidiaries is a party are valid and binding and no
default has occurred or is continuing thereunder that might result in
any material adverse change in the business, prospects, financial
condition or results of operations of the Company and its subsidiaries
taken as a whole, and the Company and its subsidiaries enjoy peaceful
and undisturbed possession under all such leases to which any of
USA WASTE SERVICES, INC.
UNDERWRITING AGREEMENT -- COMMON STOCK
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them is a party as lessee with such exceptions as do not materially
interfere with the use made by the Company or such subsidiary.
(p) The Company and each of its subsidiaries maintains
insurance as is customary in the industry.
(q) Coopers & Lybrand LLP, Deloitte & Touche LLP, Arthur
Andersen LLP, Ernst & Young LLP, Deloitte & Touche Chartered
Accountants, Kaplan Sipos & Associates, Blake, Kuehler, Babione &
Pool, Buckno Lisicky & Company and Osborn, Henning and Company are
independent public accountants with respect to the Company as required
by the Act.
(r) The financial statements, together with related
schedules and notes, forming part of the Registration Statement and
the Prospectus (and any amendment or supplement thereto), present
fairly the consolidated financial position, results of operations and
changes in financial position of the Company and its subsidiaries on
the basis stated in the Registration Statement at the respective dates
or for the respective periods to which they apply; such statements and
related schedules and notes have been prepared in accordance with
generally accepted accounting principles consistently applied
throughout the periods involved, except as disclosed therein; and the
other financial and statistical information and data set forth in the
Registration Statement and the Prospectus (and any amendment or
supplement thereto) is, in all material respects, accurately presented
and prepared on a basis consistent with such financial statements and
the books and records of the Company. No other financial statements
or schedules are required by the Act or the Exchange Act to be
included in the Registration Statement or the Prospectus.
(s) The Company is not an "investment company" or a
company "controlled" by an "investment company" within the meaning of
the Investment Company Act of 1940, as amended.
(t) No holder of any security of the Company has any
right to require registration of shares of Common Stock or any other
security of the Company because of the filing of the Registration
Statement, which has not been waived.
(u) The Shares are duly authorized for listing on the New
York Stock Exchange, subject to official notice of issuance.
(v) There are no outstanding subscriptions, rights,
warrants, options, calls, convertible securities, commitments of sale
or liens related to or entitling any person to purchase or otherwise
to acquire any shares of the capital stock of, or other ownership
interest in, the Company or any subsidiary thereof except as otherwise
disclosed in the Registration Statement or Prospectus.
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(w) Except as disclosed in the Prospectus, there are no
business relationships or related party transactions required to be
disclosed therein by Item 404 of Regulation S-K of the Commission.
(x) There is (i) no significant unfair labor practice
complaint pending against the Company or any of its subsidiaries or,
to the knowledge of the Company, threatened against any of them,
before the National Labor Relations Board or any state or local labor
relations board, and no significant grievance or significant
arbitration proceeding arising out of or under any collective
bargaining agreement is so pending against the Company or any of its
subsidiaries or, to the best knowledge of the Company, threatened
against any of them, and (ii) no significant strike, labor dispute,
slowdown or stoppage pending against the Company or any of its
subsidiaries or, to the best knowledge of the Company, threatened
against it or any of its subsidiaries except for such actions
specified in clause (i) or (ii) above, which, singly or in the
aggregate could not reasonably be expected to have a material adverse
effect on the Company and its subsidiaries, taken as a whole.
(y) The Company and each of its subsidiaries maintains a
system of internal accounting controls sufficient to provide
reasonable assurance that (i) transactions are executed in accordance
with management's general or specific authorizations; (ii)
transactions are recorded as necessary to permit preparation of
financial statements in conformity with generally accepted accounting
principles and to maintain asset accountability; (iii) access to
assets is permitted only in accordance with management's general or
specific authorization; and (iv) the recorded accountability for
assets is compared with the existing assets at reasonable intervals
and appropriate action is taken with respect to any differences.
(z) All material tax returns required to be filed by the
Company and each of its subsidiaries in any jurisdiction have been
filed, other than those filings being contested in good faith, and all
material taxes, including withholding taxes, penalties and interest,
assessments, fees and other charges due pursuant to such returns or
pursuant to any assessment received by the Company or any of its
subsidiaries have been paid, other than those being contested in good
faith and for which adequate reserves have been provided.
(aa) Subsequent to the respective dates as of which
information is given in the Registration Statement and the Prospectus
and prior to the Closing Date, or if later, the Option Closing Date
(i) there has not been and will not have been, except as set forth in
or as contemplated by the Registration Statement and the Prospectus
any change in the capitalization, long term or short term debt or in
the capital stock or equity of the Company or any of its subsidiaries,
(ii) neither the Company nor any of its subsidiaries has incurred any
material liabilities or obligations, direct or contingent, nor has it
entered into any material transactions other than pursuant to this
Agreement, and the transactions referred to herein, or as contemplated
in the Prospectus, and (iii) there has not been any material adverse
effect, or any development involving a prospective material adverse
effect, in or affecting the general affairs, management, financial
position, shareholders' equity (or, with respect to partnership
subsidiaries, partnership capital), net worth or results of operations
of the Company and its subsidiaries, taken as a whole.
USA WASTE SERVICES, INC.
UNDERWRITING AGREEMENT -- COMMON STOCK
- 11 -
12
(bb) The Company and its affiliates have not taken, and
will not take, directly or indirectly, any action designed to, or
which might reasonably be expected to, cause or result in
stabilization or manipulation of the price of any security of the
Company to facilitate the sale or resale of the Shares pursuant to the
distribution contemplated by this Agreement, and other than as
permitted by the Act, the Company has not distributed and will not
distribute any prospectus or other offering material in connection
with the offering and sale of the Shares.
Any certificate or other document signed by any officer or authorized
representative of the Company and delivered to the Representatives or to
counsel for the Underwriters shall be deemed a representation and warranty of
the Company to each Underwriter as to the matter covered thereby.
7. Indemnification.
(a) The Company agrees to indemnify and hold harmless
each Underwriter and each person, if any, who controls any Underwriter
within the meaning of Section 15 of the Act or Section 20 of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), from
and against any and all losses, claims, damages, liabilities and
judgments caused by any untrue statement or alleged untrue statement
of a material fact contained in the Registration Statement or the
Prospectus (as amended or supplemented if the Company shall have
furnished any amendments or supplements thereto) or any preliminary
prospectus, or caused by any omission or alleged omission to state
therein a material fact required to be stated therein or necessary to
make the statements therein not misleading, except insofar as such
losses, claims, damages, liabilities or judgments are caused by any
such untrue statement or omission or alleged untrue statement or
omission based upon information relating to any Underwriters furnished
in writing to the Company by or on behalf of any Underwriter through
you expressly for use therein.
(b) The indemnity agreement contained in paragraph 7(a),
with respect to any preliminary prospectus, shall not inure to the
benefit of any Underwriter to the extent that any loss, claim, damages
or liability results from the fact that a copy of the Prospectus was
not sent or given by or on behalf of such Underwriter to the person
asserting any such loss, claim, damages or liability to the extent
that the Prospectus would have cured the defect giving rise to such
loss, claim, damages, liability or judgment if such Underwriter shall
have been provided with the number of copies of the Prospectus
requested by such Underwriter and it is judicially determined that
such delivery was required under the Securities Act and was not so
made.
(c) In case any action shall be brought against any
Underwriter or any person controlling such Underwriter, based upon any
preliminary prospectus, the Registration Statement or the Prospectus
or any amendment or supplement thereto and with respect to which
indemnity may be sought against the Company, such Underwriter shall
promptly notify the Company in writing and the Company shall assume
the defense thereof, including the employment of counsel reasonably
satisfactory to such indemnified party and payment of all fees and
expenses. Any Underwriter or any such controlling person shall have
the right to employ separate counsel in any such action and
participate in the defense thereof, but the fees and expenses of such
counsel shall be at the expense of such Underwriter or such controlling
USA WASTE SERVICES, INC.
UNDERWRITING AGREEMENT -- COMMON STOCK
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13
person unless (i) the employment of such counsel has been specifically
authorized in writing by the Company, (ii) the Company shall have
failed to assume the defense and employ counsel or (iii) the named
parties to any such action (including any impleaded parties) include
both such Underwriter or such controlling person and the Company and
such Underwriter or such controlling person shall have been advised by
such counsel that there may be one or more legal defenses available to
it which are different from or additional to those available to the
Company (in which case the Company shall not have the right to assume
the defense of such action on behalf of such Underwriter or such
controlling person, it being understood, however, that the Company
shall not, in connection with any one such action or separate but
substantially similar or related actions in the same jurisdiction
arising out of the same general allegations or circumstances, be
liable for the fees and expenses of more than one separate firm of
attorneys (in addition to any local counsel) for all such Underwriters
and controlling persons, which firm shall be designated in writing by
Donaldson, Lufkin & Jenrette Securities Corporation and that all such
fees and expenses shall be reimbursed as they are incurred). The
Company shall not be liable for any settlement of any such action
effected without its written consent but if settled with the written
consent of the Company, the Company agrees to indemnify and hold
harmless any Underwriter and any such controlling person from and
against any loss or liability by reason of such settlement.
Notwithstanding the immediately preceding sentence, if in any case
where the fees and expenses of counsel are at the expense of the
Company and an indemnified party shall have requested the Company to
reimburse the indemnified party for such fees and expenses of counsel
as incurred, the Company agrees that it shall be liable for any
settlement of any action effected without its written consent if (i)
such settlement is entered into more than forty business days after
the receipt by the Company of the aforesaid request and (ii) the
Company shall have failed to reimburse the indemnified party in
accordance with such request for reimbursement prior to the date of
such settlement. The Company shall not, without the prior written
consent of the indemnified party, effect any settlement of any pending
or threatened proceeding in respect of which any indemnified party is
or could have been a party and indemnity could have been sought
hereunder by such indemnified party, unless such settlement includes
an unconditional release of such indemnified party from all liability
on claims that are the subject matter of such proceeding.
(d) Each Underwriter agrees, severally and not jointly,
to indemnify and hold harmless the Company, its directors, its
officers who sign the Registration Statement, any person controlling
the Company within the meaning of Section 15 of the Act or Section 20
of the Exchange Act, to the same extent as the foregoing indemnity
from the Company to each Underwriter but only with reference to
information relating to such Underwriter furnished in writing by or on
behalf of such Underwriter through you expressly for use in the
Registration Statement, the Prospectus or any preliminary prospectus.
In case any action shall be brought against the Company, any of its
directors, any such officer or any person controlling the Company
based on the Registration Statement, the Prospectus or any preliminary
prospectus and in respect of which indemnity may be sought against any
Underwriter, the Underwriter shall have the rights and duties given to
the Company (except that if the Company shall have assumed the defense
thereof, such Underwriter shall not be required to do so, but may
employ separate counsel therein and participate in the defense thereof
but the fees and expenses of such counsel
USA WASTE SERVICES, INC.
UNDERWRITING AGREEMENT -- COMMON STOCK
- 13 -
14
shall be at the expense of such Underwriter), and the Company, its
directors, any such officers and any person controlling the Company
shall have the rights and duties given to the Underwriter, by Section
7(c) hereof.
(e) If the indemnification provided for in this Section 7
is unavailable to an indemnified party in respect of any losses,
claims, damages, liabilities or judgments referred to therein, then
each indemnifying party, in lieu of indemnifying such indemnified
party, shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages,
liabilities and judgments (i) in such proportion as is appropriate to
reflect the relative benefits received by the Company on the one hand
and the Underwriters on the other hand from the offering of the Shares
or (ii) if the allocation provided by clause (i) above is not
permitted by applicable law, in such proportion as is appropriate to
reflect not only the relative benefits referred to in clause (i) above
but also the relative fault of the Company and the Underwriters in
connection with the statements or omissions which resulted in such
losses, claims, damages, liabilities or judgments, as well as any
other relevant equitable considerations. The relative benefits
received by the Company and the Underwriters shall be deemed to be in
the same proportion as the total net proceeds from the offering
(before deducting expenses) received by the Company, and the total
underwriting discounts and commissions received by the Underwriters,
bear to the total price to the public of the Shares, in each case as
set forth in the table on the cover page of the Prospectus. The
relative fault of the Company and the Underwriters shall be determined
by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission to state a
material fact relates to information supplied by the Company or the
Underwriters and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or
omission.
The Company and the Underwriters agree that it would not be
just and equitable if contribution pursuant to this Section 7(e) were
determined by pro rata allocation (even if the Underwriters were
treated as one entity for such purpose) or by any other method of
allocation which does not take account of the equitable considerations
referred to in the immediately preceding paragraph. The amount paid
or payable by an indemnified party as a result of the losses, claims,
damages, liabilities or judgments referred to in the immediately
preceding paragraph shall be deemed to include, subject to the
limitations set forth above, any legal or other expenses reasonably
incurred by such indemnified party in connection with investigating or
defending any such action or claim. Notwithstanding the provisions of
this Section 7, no Underwriter shall be required to contribute any
amount in excess of the amount by which the total price at which the
Shares underwritten by it and distributed to the public were offered
to the public exceeds the amount of any damages which such Underwriter
has otherwise been required to pay by reason of such untrue or alleged
untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of
the Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The Underwriters'
obligations to contribute pursuant to this Section 7(e) are several in
proportion to the respective number of Shares purchased by each of the
Underwriters hereunder and not joint.
USA WASTE SERVICES, INC.
UNDERWRITING AGREEMENT -- COMMON STOCK
- 14 -
15
(f) The Company hereby designates CT Corporation Systems,
Inc., 1633 Broadway, New York, New York 10019, (a Delaware
corporation) as its authorized agent, upon which process may be served
in any action, suit or proceeding which may be instituted in any state
or federal court in the State of New York by any Underwriter or person
controlling an Underwriter asserting a claim for indemnification or
contribution under or pursuant to this Section 7, and the Company will
accept the jurisdiction of such court in such action, and waives, to
the fullest extent permitted by applicable law, any defense based upon
lack of personal jurisdiction or venue. A copy of any such process
shall be sent or given to the Company, at the address for notices
specified in Section 10 hereof.
8. Conditions of Underwriters' Obligations. The several
obligations of the Underwriters under this Agreement are subject to the
satisfaction of each of the following conditions:
(a) All the representations and warranties of the Company
contained in this Agreement shall be true and correct on the Closing
Date and the Option Closing Date with the same force and effect as if
made on and as of the Closing Date or the Option Closing Date, as the
case may be.
(b) The Registration Statement shall have become
effective not later than 5:00 P.M., (and in the case of a Registration
Statement filed under 462(b) of the Act, not later than 10:00 P.M.)
New York City time, on the date of this Agreement or at such later
date and time as you may approve in writing, and at the Closing Date
and the Option Closing Date, as the case be, no stop order suspending
the effectiveness of the Registration Statement shall have been issued
and no proceedings for that purpose shall have been commenced or shall
be pending before or contemplated by the Commission.
(c) (i) Since the date of the latest balance sheet
included in the Registration Statement and the Prospectus, there shall
not have been any material adverse change, or any development
involving a prospective material adverse change, in the condition,
financial or otherwise, or in the earnings, affairs or business
prospects, whether or not arising in the ordinary course of business,
of the Company, (ii) since the date of the latest balance sheet
included in the Registration Statement and the Prospectus there shall
not have been any change, or any development involving a prospective
material adverse change, in the capital stock or in the long-term debt
of the Company from that set forth in the Registration Statement and
Prospectus, (iii) the Company and its subsidiaries shall have no
liability or obligation, direct or contingent, which is material to
the Company and its subsidiaries, taken as a whole, other than those
reflected in the Registration Statement and the Prospectus and (iv) on
the Closing Date and the Option Closing Date you shall have received a
certificate dated the Closing Date, and the Option Closing Date, as
the case may be, signed by John E. Drury and Earl E. DeFrates, in
their capacities as the Chief Executive Officer and Chief Financial
Officer of the Company, confirming the matters set forth in paragraphs
(a), (b), and (c) of this Section 8.
(d) You shall have received on the Closing Date and the
Option Closing Date an opinion (satisfactory to you and counsel for
the Underwriters), dated the Closing Date or the
USA WASTE SERVICES, INC.
UNDERWRITING AGREEMENT -- COMMON STOCK
- 15 -
16
Option Closing, as applicable, of Vinson & Elkins L.L.P., counsel for
the Company, to the effect that:
(i) the Company has been duly incorporated, is
validly existing as a corporation in good standing under the
laws of its jurisdiction of incorporation and has the
corporate power and authority required to carry on its
business as it is currently being conducted and to own, lease
and operate its properties;
(ii) the Shares have been duly authorized, and
when issued and delivered to the Underwriters against payment
therefor as provided by this Agreement, will have been validly
issued and will be fully paid and non-assessable, and the
issuance of such Shares is not subject to any statutory
preemptive rights or, to the knowledge of such counsel, any
other similar rights;
(iii) this Agreement has been duly authorized,
executed and delivered by the Company and is a valid and
binding agreement of the Company enforceable in accordance
with its terms (except as enforcement of rights to indemnity
and contribution thereunder may be limited under applicable
laws or principles of public policy and subject to the
qualifications that the enforceability of the Company's
obligations hereunder may be limited by bankruptcy,
insolvency, reorganization, or other laws relating to or
affecting creditors' rights generally and by general
principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at
law));
(iv) the authorized capital stock of the Company,
including the Common Stock, conforms in all material respects
as to legal matters to the description thereof contained in
the Prospectus;
(v) the Registration Statement has become
effective under the Act, no stop order suspending its
effectiveness has been issued and no proceedings for that
purpose are, to the knowledge of such counsel, pending before
or contemplated by the Commission;
(vi) the statements under the captions
"Description of Capital Stock" in the Prospectus and Item 15
of Part II of the Registration Statement insofar as such
statements constitute a summary of legal matters or documents
referred to therein, fairly present the information called for
with respect to such legal matters or documents;
(vii) the execution, delivery and performance of
this Agreement by the Company, compliance by the Company with
all the provisions hereof and the consummation of the
transactions contemplated hereby will not require any consent,
approval, authorization or other order of any court,
regulatory body, administrative agency or other governmental
body (except such as may be required under the Act or
USA WASTE SERVICES, INC.
UNDERWRITING AGREEMENT -- COMMON STOCK
- 16 -
17
other securities or Blue Sky laws) and will not conflict with
or constitute a breach of any of the terms or provisions of,
or a default under, the charter or by-laws of the Company;
(viii) the Company is not an "investment company" or
a company "controlled" by an "investment company" within the
meaning of the Investment Company Act of 1940, as amended;
(ix) (1) the Registration Statement, the
Prospectus, any supplement or amendment thereto and each
document filed pursuant to the Exchange Act and incorporated
or deemed to be incorporated by reference in the Prospectus
(except for financial statements, financial and statistical
information contained therein as to which no opinion need be
expressed) comply as to form in all material respects with the
Act;
(e) You shall have received on the Closing Date and the
Option Closing Date an opinion (satisfactory to you and counsel for
the Underwriters), dated the Closing Date, of Snell & Smith L.L.P.,
counsel for the Company, to the effect that:
(i) each of the Company's Material Subsidiaries
has been duly incorporated, is validly existing as a
corporation in good standing under the laws of its
jurisdiction of incorporation and has the corporate power and
authority required to carry on its business as it is currently
being conducted and to own, lease and operate its properties;
(ii) the Company and each of its Material
Subsidiaries is duly qualified and is in good standing as a
foreign corporation authorized to do business in each
jurisdiction in which the nature of its business or its
ownership or leasing of property requires such qualification,
except where the failure to be so qualified would not have a
material adverse effect on the Company and its subsidiaries,
taken as a whole;
(iii) all of the outstanding shares of capital
stock of, or other ownership interests in, each of the
Company's subsidiaries have been duly and validly authorized
and issued and are fully paid and non-assessable, and are
owned by the Company, free and clear of any security interest,
claim, lien, encumbrance or adverse interest of any nature
(other than liens created under the Credit Facility);
(iv) all the outstanding shares of Common Stock
have been duly authorized and validly issued and are fully
paid, non-assessable and not subject to any statutory
preemptive rights or, to the knowledge of such counsel, any
other similar rights;
(v) neither the Company nor any of its Material
Subsidiaries is in violation of its respective charter or
by-laws and, to the best of such counsel's knowledge after due
inquiry, neither the Company nor any of its Material
Subsidiaries is in default in the performance of any
obligation, agreement or condition contained in any bond,
debenture, note or any other evidence of indebtedness or in
any other agreement, indenture or instrument material to the
conduct of the business of the Company and its
USA WASTE SERVICES, INC.
UNDERWRITING AGREEMENT -- COMMON STOCK
- 17 -
18
subsidiaries, taken as a whole, to which the Company or any of
its Material Subsidiaries is a party or by which it or any of
its subsidiaries or their respective property is bound;
(vi) the execution, delivery and performance of
this Agreement by the Company, compliance by the Company with
all the provisions hereof and the consummation of the
transactions contemplated hereby will not conflict with or
constitute a breach of any of the terms or provisions of, or a
default under, the charter or by-laws of any of the Company's
Material Subsidiaries or any agreement, indenture or other
instrument to which the Company or any of its Material
Subsidiaries is a party or by which the Company or any of its
Material Subsidiaries or their respective properties are
bound, or violate or conflict with any laws, administrative
regulations or rulings or court decrees applicable to the
Company or any of its subsidiaries or their respective
properties;
(vii) to such counsel's knowledge there are no
legal or governmental proceedings pending or threatened to
which the Company or any of its subsidiaries is a party or to
which any of their respective property is subject which is
required to be described in the Registration Statement or the
Prospectus and is not so described, or of any contract or
other document which is required to be described in the
Registration Statement or the Prospectus or is required to be
filed as an exhibit to the Registration Statement which is not
described or filed as required; such counsel does not have
any reason to believe that the description of litigation in
the Prospectus is not accurate and complete in all material
respects;
(viii) to such counsel's knowledge, except as
described in the Prospectus, neither the Company nor any of
its subsidiaries has violated any Environmental Laws, nor any
federal or state law relating to discrimination in the hiring,
promotion or pay of employees nor any applicable federal or
state wages and hours laws, nor any provisions of the Employee
Retirement Income Security Act or the rules and regulations
promulgated thereunder, which in each case might result in any
material adverse change in the business, prospects, financial
condition or results of operation of the Company and its
subsidiaries, taken as a whole;
(ix) to such counsel's knowledge, the Company and
each of its subsidiaries has such permits, licenses,
franchises and authorizations of governmental or regulatory
authorities ("permits"), including, without limitation, under
any applicable Environmental Laws, as are necessary to own,
lease and operate its respective properties and to conduct its
business in the manner described in the Prospectus except
where the failure to have such permits would not have a
material adverse effect on the Company and its subsidiaries
taken as a whole; to such counsel's knowledge, the Company and
each of its subsidiaries has fulfilled and performed all of
its material obligations with respect to such permits and no
event has occurred which allows, or after notice or lapse of
time would allow, revocation or termination thereof or results
in any other material impairment of the rights of the holder
of any such permit, subject in each case to such
USA WASTE SERVICES, INC.
UNDERWRITING AGREEMENT -- COMMON STOCK
- 18 -
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qualification as may be set forth in the Prospectus; and,
except as described in the Prospectus, such permits contain no
restrictions that are materially burdensome to the Company or
any of its subsidiaries;
(x) to such counsel's knowledge, no holder of any
security of the Company has any right to require registration
of shares of Common Stock or any other security of the Company
as a result of filing the Registration Statement, which have
not been waived;
(xi) such counsel believes that (except for
financial statements, financial and statistical information
contained therein, as aforesaid) the Registration Statement
and the prospectus included therein at the time the
Registration Statement became effective did not contain any
untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to
make the statements therein not misleading, and that the
Prospectus, as amended or supplemented, if applicable (except
for financial statements, and financial and statistical
information, as aforesaid) does not contain any untrue
statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not
misleading;
(xii) all descriptions in the Prospectus of
statutes, regulations or legal or governmental proceedings in
all material respects are accurate and fairly present the
information required to be shown;
The opinion of Vinson & Elkins L.L.P. referred to in
subsection (d) above shall contain a statement that such counsel
believes that (except for financial statements, financial and
statistical information contained therein, as aforesaid) the
Registration Statement and the prospectus included therein at the time
the Registration Statement became effective did not contain any untrue
statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein not
misleading, and that the Prospectus, as amended or supplemented, if
applicable (except for financial statements, and financial and
statistical information, as aforesaid) does not contain any untrue
statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading. Vinson &
Elkins L.L.P. and Snell & Smith L.L.P., in giving their opinions with
respect to the matters covered by clauses (d)(ix) and (e)(xi) may
state that their opinions and beliefs are based upon their
participation in the preparation of the Registration Statement and
Prospectus and any amendments or supplements thereto and review and
discussion of the contents thereof, but are without independent check
or verification except as specified.
In giving the opinions described in clauses (d) and (e) above,
such counsel may rely as to factual matters on information set forth
in certificates of the Company or public officials.
USA WASTE SERVICES, INC.
UNDERWRITING AGREEMENT -- COMMON STOCK
- 19 -
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The opinion of Vinson & Elkins L.L.P. and Snell & Smith L.L.P.
described in paragraphs (d) and (e) above shall be rendered to you at
the request of the Company and shall so state therein.
(f) You shall have received on the Closing Date and the
Option Closing Date an opinion, dated the Closing Date or the Option
Closing Date, as the case may be, of McDermott, Will & Emery, counsel
for the Underwriters, in form and substance satisfactory to you.
(g) You shall have received a letter on and as of the
Closing Date and the Option Closing Date, in form and substance
satisfactory to you, (i) from Coopers & Lybrand LLP, independent
public accountants, with respect to the financial statements and
certain financial information contained in the Registration Statement
and the Prospectus and substantially in the form and substance of the
letter delivered to you by Coopers & Lybrand LLP on the date of this
Agreement, (ii) from Deloitte & Touche L.L.P., Arthur Andersen L.L.P.,
Ernst & Young LLP, Deloitte & Touche Chartered Accountants, Kaplan
Sipos & Associates, Blake, Kuehler, Babione & Pool, Buckno Lisicky &
Company and Osborn, Henning and Company, independent public
accountants, each with respect to the financial statements and certain
financial information contained in the Registration Statement and the
Prospectus and in each case substantially in the form and substance of
the letter delivered to you by such firm on the date of this Agreement.
(h) The Company shall not have failed at or prior to the
Closing Date to perform or comply with any of the agreements herein
contained and required to be performed or complied with by the Company
at or prior to the Closing Date or the Option Closing Date as the case
may be.
9. Effective Date of Agreement and Termination. This Agreement
shall become effective upon the later of (i) execution of this Agreement and
(ii) when notification of the effectiveness of the Registration Statement has
been released by the Commission.
This Agreement may be terminated at any time prior to the Closing Date
by you by written notice to the Company if any of the following has occurred:
(i) since the respective dates as of which information is given in the
Registration Statement and the Prospectus, any adverse change or development
involving a prospective adverse change in the condition, financial or
otherwise, of the Company or any of its subsidiaries or the earnings, affairs,
or business prospects of the Company or any of its subsidiaries, whether or not
arising in the ordinary course of business, which would, in your judgment, make
it impracticable to market the Shares on the terms and in the manner
contemplated in the Prospectus, (ii) any outbreak or escalation of hostilities
or other national or international calamity or crisis or change in economic
conditions or in the financial markets of the United States or elsewhere that,
in your judgment, is material and adverse and would, in your judgment, make it
impracticable to market the Shares on the terms and in the manner contemplated
in the Prospectus, (iii) the suspension or material limitation of trading in
securities on the New York Stock Exchange, the American Stock Exchange or the
NASDAQ National Market System or limitation on prices for securities on any
such exchange or National Market System, (iv) the enactment, publication,
decree or other promulgation of
USA WASTE SERVICES, INC.
UNDERWRITING AGREEMENT -- COMMON STOCK
- 20 -
21
any federal or state statute, regulation, rule or order of any court or other
governmental authority which in your opinion materially and adversely affects,
or will materially and adversely affect, the business or operations of the
Company or any Subsidiary, (v) the declaration of a banking moratorium by
either federal or New York State authorities or (vi) the taking of any action
by any federal, state or local government or agency in respect of its monetary
or fiscal affairs which in your opinion has a material adverse effect on the
financial markets in the United States.
If on the Closing Date or on an Option Closing Date, as the case may
be, any one or more of the Underwriters shall fail or refuse to purchase the
Firm Shares or Additional Shares, as the case may be, which it or they have
agreed to purchase hereunder on such date and the aggregate number of Firm
Shares or Additional Shares, as the case may be, which such defaulting
Underwriter or Underwriters, as the case may be, agreed but failed or refused
to purchase is not more than one-tenth of the total number of Shares to be
purchased on such date by all Underwriters, each non-defaulting Underwriter
shall be obligated severally, in the proportion which the number of Firm Shares
set forth opposite its name in Schedule I bears to the total number of Firm
Shares which all the non-defaulting Underwriters, as the case may be, have
agreed to purchase, or in such other proportion as you may specify, to purchase
the Firm Shares or Additional Shares, as the case may be, which such defaulting
Underwriter or Underwriters, as the case may be, agreed but failed or refused
to purchase on such date; provided that in no event shall the number of Firm
Shares or Additional Shares, as the case may be, which any Underwriter has
agreed to purchase pursuant to Section 2 hereof be increased pursuant to this
Section 9 by an amount in excess of one-ninth of such number of Firm Shares or
Additional Shares, as the case may be, without the written consent of such
Underwriter. If on the Closing Date or on an Option Closing Date, as the case
may be, any Underwriter or Underwriters shall fail or refuse to purchase Firm
Shares, or Additional Shares, as the case may be, and the aggregate number of
Firm Shares or Additional Shares, as the case may be, with respect to which
such default occurs is more than one-tenth of the aggregate number of Shares to
be purchased on such date by all Underwriters and arrangements satisfactory to
you and the Company for purchase of such Shares are not made within 48 hours
after such default, this Agreement will terminate without liability on the part
of any non-defaulting Underwriter and the Company. In any such case which does
not result in termination of this Agreement, either you or the Company shall
have the right to postpone the Closing Date or the applicable Option Closing
Date, as the case may be, but in no event for longer than seven days, in order
that the required changes, if any, in the Registration Statement and the
Prospectus or any other documents or arrangements may be effected. Any action
taken under this paragraph shall not relieve any defaulting Underwriter from
liability in respect of any default of any such Underwriter under this
Agreement.
10. Miscellaneous. Notices given pursuant to any provision of
this Agreement shall be addressed as follows: (a) if to the Company, to USA
Waste Services, Inc., 1001 Fannin Street, Suite 4000, Houston, Texas 77002 and
(b) if to any Underwriter or to you, to you c/o Donaldson, Lufkin & Jenrette
Securities Corporation, 277 Park Avenue, New York, New York 10172, Attention:
Syndicate Department, or in any case to such other address as the person to be
notified may have requested in writing.
The respective indemnities, contribution agreements, representations,
warranties and other statements of the Company, its officers and directors and
of the several Underwriters set forth in or made
USA WASTE SERVICES, INC.
UNDERWRITING AGREEMENT -- COMMON STOCK
- 21 -
22
pursuant to this Agreement shall remain operative and in full force and effect,
and will survive delivery of and payment for the Shares, regardless of (i) any
investigation, or statement as to the results thereof, made by or on behalf of
any Underwriter or by or on behalf of the Company, the officers or directors of
the Company or any controlling person of the Company, (ii) acceptance of the
Shares and payment for them hereunder and (iii) termination of this Agreement.
If this Agreement shall be terminated by the Underwriters because of
any failure or refusal on the part of the Company to comply with the terms or
to fulfill any of the conditions of this Agreement, the Company agrees to
reimburse the several Underwriters for all out-of-pocket expenses (including
the fees and disbursements of counsel) reasonably incurred by them.
Except as otherwise provided, this Agreement has been and is made
solely for the benefit of and shall be binding upon the Company, the
Underwriters, any controlling persons referred to herein and their respective
successors and assigns, all as and to the extent provided in this Agreement,
and no other person shall acquire or have any right under or by virtue of this
Agreement. The term "successors and assigns" shall not include a purchaser of
any of the Shares from any of the several Underwriters merely because of such
purchase.
This Agreement shall be governed and construed in accordance with the
laws of the State of New York.
This Agreement may be signed in various counterparts which together
shall constitute one and the same instrument.
USA WASTE SERVICES, INC.
UNDERWRITING AGREEMENT -- COMMON STOCK
- 22 -
23
Please confirm that the foregoing correctly sets forth the agreement
between the Company and the several Underwriters.
Very truly yours,
USA WASTE SERVICES, INC.
By: /s/ EARL E. DeFRATES
----------------------------------
Title: Executive Vice President
and CFO
DONALDSON, LUFKIN & JENRETTE
SECURITIES CORPORATION
DEUTSCHE MORGAN GRENFELL INC.
GOLDMAN, SACHS & CO.
MERRILL LYNCH, PIERCE,
FENNER & SMITH INCORPORATED
Acting severally on behalf of
themselves and the several
Underwriters named in
Schedule I hereto
By: DONALDSON, LUFKIN & JENRETTE
SECURITIES CORPORATION
By: /s/ MARK A. PYTOSH
----------------------------
USA WASTE SERVICES, INC.
UNDERWRITING AGREEMENT -- COMMON STOCK
- 23 -
24
SCHEDULE I
Number of Firm
Shares
Underwriters to Be Purchased
------------ ---------------
Donaldson, Lufkin & Jenrette Securities Corporation . . . . . . . . . . . . . . . 2,005,000
Deutsche Morgan Grenfell Inc. . . . . . . . . . . . . . . . . . . . . . . . . . . 2,005,000
Goldman, Sachs & Co. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2,005,000
Merrill Lynch, Pierce, Fenner & Smith Incorporated . . . . . . . . . . . . . . . 2,005,000
ABN Amro Chicago Corporation . . . . . . . . . . . . . . . . . . . . . . . . . . 90,000
Bear, Stearns & Co. Inc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 90,000
Alex. Brown & Sons Incorporated . . . . . . . . . . . . . . . . . . . . . . . . . 90,000
BT Securities Corporation . . . . . . . . . . . . . . . . . . . . . . . . . . . . 90,000
Credit Suisse First Boston Corporation . . . . . . . . . . . . . . . . . . . . . 90,000
Dillon, Read & Co. Inc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 90,000
Morgan Stanley & Co. Incorporated . . . . . . . . . . . . . . . . . . . . . . . . 90,000
NatWest Securities Limited . . . . . . . . . . . . . . . . . . . . . . . . . . . 90,000
Oppenheimer & Co., Inc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 90,000
Robertson, Stephens & Company LLC . . . . . . . . . . . . . . . . . . . . . . . . 90,000
Salomon Brothers Inc . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 90,000
Smith Barney Inc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 90,000
Robert W. Baird & Co. Incorporated . . . . . . . . . . . . . . . . . . . . . . . 45,000
CIBC Wood Gundy Securities Corp. . . . . . . . . . . . . . . . . . . . . . . . . 45,000
Cleary Gull Reiland & McDevitt Inc. . . . . . . . . . . . . . . . . . . . . . . . 45,000
Fahnestock & Co. Inc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45,000
First Analysis Securities Corporation . . . . . . . . . . . . . . . . . . . . . . 45,000
Interstate/Johnson Lane Corporation . . . . . . . . . . . . . . . . . . . . . . . 45,000
McDonald & Company Securities, Inc. . . . . . . . . . . . . . . . . . . . . . . . 45,000
Morgan Keegan & Company, Inc. . . . . . . . . . . . . . . . . . . . . . . . . . . 45,000
Ohio Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45,000
Parker/Hunter Incorporated . . . . . . . . . . . . . . . . . . . . . . . . . . . 45,000
Pennsylvania Merchant Group Ltd . . . . . . . . . . . . . . . . . . . . . . . . . 45,000
Principal Financial Securities, Inc. . . . . . . . . . . . . . . . . . . . . . . 45,000
Raymond James & Associates, Inc. . . . . . . . . . . . . . . . . . . . . . . . . 45,000
Sanders Morris Mundy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45,000
Sands Brothers & Co., Ltd. . . . . . . . . . . . . . . . . . . . . . . . . . . . 45,000
Southwest Securities, Inc. . . . . . . . . . . . . . . . . . . . . . . . . . . . 45,000
Sutro & Co. Incorporated . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45,000
Toronto Dominion Securities (USA) Inc. . . . . . . . . . . . . . . . . . . . . . 45,000
Tucker Anthony Incorporated . . . . . . . . . . . . . . . . . . . . . . . . . . . 45,000
Van Kasper & Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45,000
----------
TOTAL 10,000,000
==========
USA WASTE SERVICES, INC.
UNDERWRITING AGREEMENT -- COMMON STOCK
SCHEDULE I-1
25
ANNEX I
MATERIAL SUBSIDIARIES
STATE OF
SUBSIDIARY INCORPORATION
[S] [C]
Chambers Development Company, Inc. Delaware
Empire Sanitary Landfill, Inc. Pennsylvania
Envirofil, Inc. Delaware
Sanifill, Inc. Delaware
Western Waste Industries California
Canadian Waste Services, Inc. Ontario, Canada
Quebec Waste Services, Inc. Quebec, Canada
USA WASTE SERVICES, INC.
UNDERWRITING AGREEMENT -- COMMON STOCK
ANNEX I-1