-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: keymaster@town.hall.org Originator-Key-Asymmetric: MFkwCgYEVQgBAQICAgADSwAwSAJBALeWW4xDV4i7+b6+UyPn5RtObb1cJ7VkACDq pKb9/DClgTKIm08lCfoilvi9Wl4SODbR1+1waHhiGmeZO8OdgLUCAwEAAQ== MIC-Info: RSA-MD5,RSA, YRmEF5D9ms0kIHydDPeRSLqyXZEmNh3W+nsJv1BcbqoD+nggY+IbeM5qYgi2fIAG LhfbauV3beqfrgYeJ78CDQ== 0000014827-94-000006.txt : 19940502 0000014827-94-000006.hdr.sgml : 19940502 ACCESSION NUMBER: 0000014827-94-000006 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 8 FILED AS OF DATE: 19940429 EFFECTIVENESS DATE: 19940518 FILER: COMPANY DATA: COMPANY CONFORMED NAME: BROWNING FERRIS INDUSTRIES INC CENTRAL INDEX KEY: 0000014827 STANDARD INDUSTRIAL CLASSIFICATION: 4953 IRS NUMBER: 741673682 STATE OF INCORPORATION: DE FISCAL YEAR END: 0930 FILING VALUES: FORM TYPE: S-8 SEC ACT: 1933 Act SEC FILE NUMBER: 033-53393 FILM NUMBER: 94525454 BUSINESS ADDRESS: STREET 1: 757 N ELDRIDGE CITY: HOUSTON STATE: TX ZIP: 77079 BUSINESS PHONE: 7138708100 S-8 1 ACTUAL S-8 DOCUMENT Registration No. 33-_______ SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 _______________ FORM S-8 REGISTRATION STATEMENT Under THE SECURITIES ACT OF 1933 ________________ BROWNING-FERRIS INDUSTRIES, INC. (Exact name of issuer as specified in its charter) DELAWARE 74-1673682 (State or other jurisdiction of (I.R.S.Employer incorporation or organization) Identification No.) 757 N. Eldridge 77079 Houston, Texas (Zip Code) (Address of principal executive offices) 1993 Stock Incentive Plan and 1993 Non-Employee Director Stock Plan of BROWNING-FERRIS INDUSTRIES, INC. (Full title of the plans) GERALD K. BURGER Browning-Ferris Industries, Inc. 757 N. Eldridge Houston, Texas 77079 (Name and address of agent for service) Telephone number, including area code, of agent for service: (713) 870-7820 ________________ Cover continued on next page. CALCULATION OF REGISTRATION FEE Proposed Proposed Maximum Maximum Title of Amount Offering Aggregate Amount of Securities to Being Price Offering Registration be Registered Registered Per Share Price Fee ___________________________________________________________________ Common Stock, 7,250,000 $28.9375(3) $209,796,870(3) $72,344(3) $.16-2/3 Par (1)(2) Value ___________________________________________________________________ (1) The 7,250,000 shares of Common Stock being originally registered hereby are reserved for issuance upon exercise of options granted or to be granted under the Registrant's 1993 Stock Incentive Plan and 1993 Non-Employee Director Stock Plan. The registration fees have been paid previously respecting the securities registered by Registration Statement Nos. 2-91197, 33-21577 and 33-41281 pursuant to which the Company originally registered 10,000,000 shares of Common Stock, $.16-2/3 par value, reserved for issuance upon exercise under the Registrant's stock option plans. The Registrant declared two-for-one splits of its Common Stock, $.16-2/3 par value, to stockholders of record at the close of business on December 13, 1985 and March 31, 1987. The distribution of the shares resulting from these stock splits was effected December 26, 1985 and April 24, 1987. Pursuant to the anti-dilution provisions of each of the Company's stock option plans, each holder of options to purchase Common Stock which were granted on or before these two stock split record dates are entitled to the exercise of an option, adjusted on a per share basis, at the same aggregate purchase price. The restated number of shares originally registered is 13,000,000 shares. Of such shares registered, 3,356,115 shares have been issued as of March 31, 1994. The shares registered hereby pursuant to Registration Statement Nos. 2-91197, 33-21577 and 33-41281 are as follows: Number of Shares Name of Plan Registered 1983 Stock Option Plan 1,332,330 1987 Stock Option Plan 4,473,500 1990 Stock Option Plan 3,838,055 Total 9,643,885 The maximum number of shares of Common Stock which may be issuable upon exercise of all such options is, as more fully set forth herein, subject to adjustment to prevent dilution. (2) There are also registered hereby such indeterminate number of shares of Common Stock as may become issuable by reason of the operation of the anti- dilution provisions of the plans. (3) Calculated in accordance with Rule 457(h)(1). ________________ The Prospectus used in connection with this Registration Statement also relates to Registration Statement Nos. 2-91197, 33-21577 and 33-41281 and is intended to be the common prospectus referred to in Rule 429 under the Securities Act of 1933, as amended. Such Registration Statements are accordingly amended to reflect the information contained herein. PART II. INFORMATION REQUIRED IN THE REGISTRATION STATEMENT Item 3. INCORPORATION OF DOCUMENTS BY REFERENCE The following documents filed with the Securities and Exchange Commission (the "Commission") are incorporated herein by reference and made a part hereof: (a) The Company's annual report for the fiscal year ended September 30, 1993, on Form 10-K; and (b) The Company's quarterly report on Form 10-Q for the quarter ended December 31, 1993. All reports and other documents subsequently filed by the Company pursuant to Sections 13, 14 and 15(d) of the Securities Exchange Act of 1934, as amended, prior to the filing of a post-effective amendment which indicates that all securities offered hereby have been sold or which deregisters all securities remaining unsold, shall be deemed to be incorporated by reference herein and to be a part hereof from the date of the filing of such reports and documents. Item 6. Indemnification of Directors and Officers Section 145 of the General Corporation Law of the State of Delaware empowers the Company to, and the By-laws of the Company provide that it shall, indemnify any person who was or is a party or is threatened to be made a party to, or otherwise becomes involved in, any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative, investigative (formal or informal) other than an action by or in the right of the Company, by reason of the fact that he is or was a director, officer, employee or agent of the Company, or is or was serving at the request of the Company as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, against expenses (including attorneys' fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by him in connection with such action, suit or proceeding if he acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the Company, and, with respect to any criminal action or proceeding, had no reasonable cause to believe his conduct was unlawful; except that, in the case of an action or suit by or in the right of the Company, no indemnification may be made in respect of any claim, issue or matter as to which such person shall have been adjudged to be liable to the Company, unless and only to the extent that the Delaware Court of Chancery or the court in which such action or suit was brought shall determine that such person is fairly and reasonably entitled to indemnity for proper expenses. The Company's By-laws provide, pursuant to Section 145 of the General Corporation Law of the State of Delaware, for indemnification of officers, directors, employees and agents of the Company and persons serving at the request of the Company in such capacities for other business organizations against certain losses, costs, liabilities and expenses incurred by reason of their positions with the Company or such other business organizations. The Company's Restated Certificate of Incorporation contains a provision which eliminates, to the fullest extent permitted by law, director liability for monetary damages for breaches of fiduciary duty of care. At the annual meeting of stockholders held on March 4, 1987, the Company's shareholders adopted a resolution authorizing the Company to enter into an Indemnity Agreement with each of the Company's directors and with certain officers of the Company designated by the Board of Directors or its Executive Committee. The Indemnity Agreement requires that the Company indemnify directors and designated officers who are parties thereto in all cases to the fullest extent permitted by applicable law. Pursuant to a policy of directors' and officers' liability and corporation reimbursement insurance, the Company's officers and directors are insured, subject to the limits, retention, exceptions and other terms and conditions of such policy, against liability for any actual or alleged breach of duty, neglect, error, misstatement, misleading statement, omission or other act done or wrongfully attempted while acting in their capacities as directors or officers of the Company. Pursuant to a number of agreements by which the Company acquired ownership of businesses, the former owners of those businesses individually agreed to indemnify each officer of the Company, each person who may be liable as a director of the Company or as a person who controls or shall have controlled the Company within the meaning of the Securities Act of 1933 (the "Act") against certain liabilities that such officers, directors or controlling persons might incur. Generally, such former owners have agreed to indemnify such officers, directors or controlling persons against any and all damages or liabilities to which such officers, directors or controlling persons may become subject under the Act, the Securities Exchange Act of 1934, state securities laws, the common law or otherwise, including legal and other expenses incurred in connection therewith, but only insofar as such liabilities arise out of or are based upon any untrue statement or omission or alleged omission based upon information furnished to the Company by or on behalf of such former owner for use in certain registration statements filed by the Company under the Act or upon failure of such former owner to provide such information. Item 8. Exhibits *3 - Restated Certificate of Incorporation of Browning-Ferris Industries, Inc. dated October 7, 1991. (Exhibit No. 3(a) of Form 10-K for the fiscal year ended September 30, 1993 is incorporated by reference.) *4(a) - Browning-Ferris Industries, Inc. 1983 Stock Option Plan, as amended on December 2, 1986. (Exhibit 10.7 of Form 10-K for the fiscal year ended September 30, 1986 is incorporated by reference.) *4(b) - Browning-Ferris Industries, Inc. 1987 Stock Option Plan. (Exhibit 10.11 of Form 10-K for the fiscal year ended September 30, 1988, is incorporated by reference.) *4(c) - Browning-Ferris Industries, Inc. 1990 Stock Option Plan. (Exhibit 4.5 of Registration Statement No. 33-41281 is incorporated by reference.) 4(d) - Browning-Ferris Industries, Inc. 1993 Stock Incentive Plan. 4(e) - Browning-Ferris Industries, Inc. 1993 Non-Employee Director Stock Plan. *4(f) - Browning-Ferris Industries, Inc. 1983 Stock Option Plan Agreement for Incentive Stock Options for Employees. (Exhibit 4.15 of Registration Statement No. 2-91197 is incorporated by reference.) *4(g) - Browning-Ferris Industries, Inc. 1983 Stock Option Plan Agreement for Incentive Stock Options for Officers and Directors. (Exhibit 4.16 of Registration Statement No. 2- 91197 is incorporated by reference.) *4(h) - Browning-Ferris Industries, Inc. 1983 Stock Option Plan Agreement for Non-qualified Stock Options for Employees. (Exhibit 4.17 of Registration Statement No. 2-91197 is incorporated by reference.) *4(i) - Browning-Ferris Industries, Inc. 1983 Stock Option Plan Agreement for Non-qualified Stock Options for Officers and Directors. (Exhibit 4.18 of Registration No. 2-91197 is incorporated by reference.) *4(j) - Browning-Ferris Industries, Inc. 1987 Stock Option Plan Agreement for Non-qualified Stock Options for Employees. (Exhibit 4.18 of Registration Statement No. 33-21577 is incorporated by reference.) *4(k) - Browning-Ferris Industries, Inc. 1987 Stock Option Plan Agreement for Non-qualified Stock Options for Officers and Directors. (Exhibit 4.19 of Registration Statement No. 33- 21577 is incorporated by reference.) *4(l) - Browning-Ferris Industries, Inc. 1990 Stock Option Plan Agreement for Non-qualified Stock Options for Employees. (Exhibit 4.16 of Registration Statement No. 33-41281 is incorporated by reference.) *4(m) - Browning-Ferris Industries, Inc. 1990 Stock Option Plan Agreement for Non-qualified Stock Options for Officers and Directors. (Exhibit 4.17 of Registration Statement No. 33- 41281 is incorporated by reference.) 4(n) - Browning-Ferris Industries, Inc. 1993 Stock Incentive Plan Agreement. 4(o) - Browning-Ferris Industries, Inc. 1993 Non-Employee Director Stock Plan Agreement. 5 - Legal Opinion of Fulbright & Jaworski. 23(a) - Consent of Arthur Andersen & Co. 23(b) - Consent of Messrs. Fulbright & Jaworski (included in their opinion filed as Exhibit 5). 24 - Powers of Attorney (included under the caption "Powers of Attorney and Signatures"). _________________ *Incorporated by reference. Item 9. Undertakings. A. The undersigned registrant hereby undertakes: (1) To file, during any period in which offers or sales are being made, a post-effective amendment to this Registration Statement: (i) To include any prospectus required by Section 10(a)(3) of the Securities Act of 1933; (ii) To reflect in the prospectus any facts or events arising after the effective date of the Registration Statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the Registration Statement; (iii) To include any material information with respect to the plan of distribution not previously disclosed in the Registration Statement or any material change to such information in the Registration Statement; Provided, however, that paragraphs (i) and (ii) above do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in periodic reports filed by the registrant pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in the Registration Statement; (2) That, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof; and (3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering. B. The undersigned registrant hereby undertakes that, for purposes of determining any liability under the Securities Act of 1933, each filing of the registrant's annual report pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934 that is incorporated by reference in this Registration Statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. C. Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the registrant will, unless in the opinion of its counsel the matter has been settled by a controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Act and will be governed by the final adjudication of such issue. SIGNATURES Pursuant to the requirements of the Securities Act of 1933, as amended, the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized in the City of Houston, State of Texas, on this 29th day of April, 1994. BROWNING-FERRIS INDUSTRIES, INC. (Registrant) By: /s/ William D. Ruckelshaus William D. Ruckelshaus, Chairman of the Board, Chief Executive Officer and Director POWERS OF ATTORNEY AND SIGNATURES Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed below by the following persons in the capacities and on the date indicated. Each of the undersigned officers and directors of Browning-Ferris Industries, Inc. hereby constitutes and appoints WILLIAM D. RUCKELSHAUS, JEFFREY E. CURTISS and RUFUS WALLINGFORD, and each of them singly, acting without the others, as true and lawful attorney-in-fact and agent, with full power of substitution and resubstitution, for him in his name, place and stead, in any and all capacities, to sign any and all amendments (including post- effective amendments) to this Registration Statement and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission and to make any and all state securities law or blue sky filings, granting unto said attorney-in-fact and agent, full power and authority to do and perform each and every act and thing requisite or necessary to be done in and about the premises, as fully to all intents and purposes as he might or could do in person, thereby ratifying and confirming all that said attorney-in-fact and agent, or his substitute or substitutes, may lawfully do or cause to be done by virtue hereof. /s/ William D. Ruckelshaus William D. Ruckelshaus, Chairman of the Board, Chief Executive Officer and Director /s/ Bruce E. Ranck Bruce E. Ranck, President, Chief Operating Officer and Director /s/ Norman A. Myers Norman A. Myers, Vice Chairman, Chief Marketing Officer and Director /s/ Jeffrey E. Curtiss Jeffrey E. Curtiss, Senior Vice President and Chief Financial Officer /s/ David R. Hopkins David R. Hopkins, Vice President, Controller and Chief Accounting Officer /s/ William T. Butler William T. Butler, Director /s/ C. Jackson Grayson, Jr. C. Jackson Grayson, Jr., Director /s/ Gerald Grinstein Gerald Grinstein, Director /s/ Ulrich Otto Ulrich Otto, Director /s/ Harry J. Phillips, Sr. Harry J. Phillips, Sr., Director /s/ Joseph L. Robers, Jr. Joseph L. Roberts, Jr., Director /s/ Marc J. Shapiro Marc J. Shapiro, Director /s/ Robert M. Teeter Robert M. Teeter, Director /s/ Louis A. Waters Louis A. Waters, Director /s/ Marina v.N. Whitman Marina v.N. Whitman, Director April 29, 1994. /s/ Peter S. Willmott Peter S. Willmott, Director EX-99 2 Registration No. 33-_______ SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 _______________ EXHIBITS TO FORM S-8 REGISTRATION STATEMENT Under THE SECURITIES ACT OF 1933 ________________ BROWNING-FERRIS INDUSTRIES, INC. (Exact name of issuer as specified in its charter) DELAWARE 74-1673682 (State or other jurisdiction of (I.R.S.Employer incorporation or organization) Identification No.) 757 N. Eldridge 77079 Houston, Texas (Zip Code) (Address of principal executive offices) 1993 Stock Incentive Plan and 1993 Non-Employee Director Stock Plan of BROWNING-FERRIS INDUSTRIES, INC. (Full title of the plans) ________________ EX-4 3 EXHIBIT 4(d) BROWNING-FERRIS INDUSTRIES, INC. 1993 Stock Incentive Plan 1. Purpose. The 1993 Stock Incentive Plan (the "Plan") is to benefit Browning-Ferris Industries, Inc. (the "Company") and its subsidiary corporations through the maintenance and development of its management by offering certain executives, key employees (including employee-directors) and consultants of the Company and its subsidiaries (the "Participants") an opportunity to become owners of the Common Stock, $.16-2/3 par value, of the Company and is intended to advance the best interests of the Company by providing such persons with additional incentive by increasing their proprietary interest in the success of the Company and its subsidiary corporations. 2. Administration. The Plan shall be administered by the Compensation Committee of the Board of Directors of the Company or by another committee designated to act by the Board of Directors (the "Committee"), which Committee shall consist of not less than two members who are outside directors as described in Section 162(m) of the Internal Revenue Code of 1986, as amended, and rules and regulations issued thereunder. Meetings shall be held at such times and places as shall be determined by the Committee. Except to the extent permitted under Rule 16b-3 or any successor rule under the Securities Exchange Act of 1934 ("Rule 16b-3"), no director serving on the Committee shall be granted or awarded equity securities or options of the Company pursuant to this Plan or any other plan of the Company or any of its affiliates during service as an administrator of a compensation or benefit plan of the Company or any of its affiliates or during the one year prior to such service. A majority of the members of the Committee shall constitute a quorum for the transaction of business, and the vote of a majority of those members present at any meeting shall decide any question brought before that meeting. In addition, the Committee may take any action otherwise proper under the Plan by the unanimous written consent of its members. No member of the Committee shall be liable for any act or omission of any other member of the Committee or for any act or omission on his own part, including but not limited to the exercise of any power or discretion given to him under the Plan, except those resulting from his own gross negligence or willful misconduct. All questions of interpretation and application of the Plan, or of options granted hereunder (the "Options") and of stock awards and restricted stock (which are defined in Paragraph 17 hereof) granted hereunder, shall be subject to the determination, which shall be final and binding, of a majority of the whole Committee. 3. Options, Stock Awards and Restricted Stock Grants. The stock subject to the Options and other provisions of the Plan shall be shares of the Company's Common Stock, $.16-2/3 par value (the "Stock"). The total amount of the Stock with respect to which Options, stock awards and restricted stock may be granted under this Plan shall not exceed in the aggregate 7,000,000 shares, but no more than 500,000 shares of Stock in the aggregate may be awarded as stock awards and restricted stock grants; provided, that the class and aggregate number of shares of Stock which may be subject to Options, stock awards and restricted stock granted hereunder shall be subject to adjustment in accordance with the provisions of Paragraph 16 hereof. Such shares of Stock may be treasury shares or authorized but unissued shares of Stock. In the event that any outstanding Option for any reason shall expire or is terminated or cancelled, the shares of Stock allocable to the unexercised portion of such Option may again be subject to an Option, stock award or restricted stock under the Plan. 4. Authority to Grant Options. The Committee may grant from time to time to such eligible individuals (the "Optionees") as set forth in Paragraph 5 an Option or Options to buy a stated number of shares of Stock under the terms and conditions of the Plan and the stock option agreement. Options granted under the Plan may, in the discretion of the Committee, be either incentive stock options as defined in Section 422 of the Internal Revenue Code of 1986, as amended (the "Code"), or non-qualified stock options. Each stock option agreement shall specifically state, for each Option granted thereunder, whether the Option is an incentive stock option or a non-qualified option, but any Option not designated by the Committee as an incentive stock option shall be a non-qualified stock option. In no event, however, shall both an incentive stock option and a non-qualified stock option be granted together under the Plan in such a manner that the exercise of one Option affects the rights to exercise the other. No Options shall be granted under the Plan subsequent to December 6, 2003. Except as provided in Paragraph 6, all provisions of this Plan relating to options apply to both incentive and non-qualified options. The total amount of Stock with respect to which Options may be granted under the Plan to employee-directors of the Company as a group shall not exceed in the aggregate thirty (30) percent of the total number of shares with respect to which Options may be granted pursuant to Paragraph 3 of the Plan; provided, that the class and the aforesaid maximum number of shares shall be subject to adjustments in accordance with the provisions of Paragraph 16 hereof. The only Options under the Plan which may be granted are those which either (i) are granted after adoption of the Plan and are conditioned upon approval of the Plan by the stockholders of the Company within twelve months of such adoption or (ii) are granted after both adoption of the Plan and approval thereof by the stockholders of the Company within twelve months after the date of such adoption, all as provided in Paragraph 21 hereof. The maximum number of Options which may be granted to any one Participant from this Plan is 300,000; provided, that the class and the aforesiad maximum number of shares shall be subject to adjustments in accordance with the provisions of Paragraph 16 hereof. 5. Eligibility for Stock Options. Except as provided in Paragraph 6(iv), the individuals who shall be eligible to receive Options under the Plan shall be key employees (including employee- directors) of the Company or of any subsidiary corporation and any person who is a party to a written consulting agreement with the Company or any of its subsidiary corporations, as determined by the Committee. Non-employee directors are not eligible. For all purposes of the Plan, the term "subsidiary corporation" shall mean any corporation of which the Company is the "parent corporation" as that term is defined in Section 424(e) of the Code. 6. Provisions Applicable to Incentive Stock Options. The following provisions shall apply only to incentive stock options granted under the Plan: (i) No incentive stock option shall be granted to any employee who, at the time such Option is granted, owns, within the meaning of Section 422 of the Code, stock possessing more than 10 percent of the total combined voting power of all classes of Stock of the Company or any of its subsidiaries, except that such an Option may be granted to such an employee if at the time the Option is granted the option price is at least 110 percent of the fair market value of the Stock (determined in accordance with Paragraph 7) subject to the Option, and the Option by its terms is not exercisable after the expiration of five years from the date the Option is granted; (ii) To the extent that the aggregate fair market value of stock with respect to which incentive stock options (without regard to this subparagraph) are exercisable for the first time by any individual during any calendar year (under all plans of the Company and its subsidiaries) exceeds $100,000, such Options shall be treated as Options which are not incentive stock options. This subparagraph shall be applied by taking Options into account in the order in which they were granted. If some but not all Options granted on any one day are subject to this subparagraph, then such Options shall be apportioned between incentive stock option and non-qualified stock option treatment in such manner as the Committee shall determine. For purposes of this subparagraph, the fair market value of any stock shall be determined, in accordance with Paragraph 7, as of the date the Option with respect to such Stock is granted. (iii) No incentive stock option granted under the Plan shall be exercisable any sooner than one year from the date of grant. (iv) Only employees (including employee-directors) of the Company and its subsidiary corporations shall be eligible to receive incentive stock options. 7. Option Price; Fair Market Value. The price at which shares of Stock may be purchased pursuant to an Option shall be not less than the fair market value of the shares of Stock on the date the Option is granted, and the Committee in its discretion may provide that the price at which shares may be so purchased shall be more than such fair market value. For all purposes of this Plan, the "fair market value" of the Stock shall be the mean of the highest and lowest selling prices of the Stock as reported in The Wall Street Journal for the last trading day before the date as of which such fair market value is to be determined. No Option may be repriced. 8. Duration of Options. Subject to Paragraph 6 (i), no Option shall be exercisable after the expiration of ten years from the date such Option is granted. An Option shall expire immediately following the last day on which such Option is exercisable pursuant to this Paragraph 8 or any decision of the Committee made pursuant to Paragraph 9(b). 9. Amount Exercisable. (a) Subject to Paragraph 6(iii), no Option shall be exercisable earlier than six months from the date of grant. (b) Subject to Paragraph 9(a), the Committee in its discretion may provide that an Option shall be exercisable throughout the term of the Option or during any lesser period of time commencing on or after six months from the date of grant of the Option and ending upon or before the expiration of the term. Each Option may be exercised, so long as it is valid and outstanding, from time to time in part or as a whole, subject to any limitations with respect to the number of shares for which the Option may be exercised at a particular time and to such other conditions as the Committee in its discretion may specify upon granting the Option. 10. Exercise of Options. Options shall be exercised by the delivery of written notice to the Company setting forth the number of shares of Stock with respect to which the Option is to be exercised, together with cash, wire transfer, certified check, bank draft or postal or express money order payable to the order of the Company (the "Acceptable Funds") for an amount equal to the Option price of such shares of Stock, or at the election of the Optionee, by exchanging shares of Stock owned by the Optionee, so long as the exchanged shares of Stock plus Acceptable Funds paid, if any, have a total fair market value (determined in accordance with Paragraph 7, as of the date of exercise) equal to the purchase prices for such shares to be acquired upon exercise of said Option, and specifying the address to which the certificates for such shares are to be mailed. Whenever an Option is exercised by exchanging shares of Stock theretofore owned by the Optionee: (1) no shares of Stock received upon exercise of that Option thereafter may be exchanged to pay the Option price for additional shares of Stock within the following six months; and (2) the Optionee shall deliver to the Company certificates registered in the name of such Optionee representing a number of shares of Stock legally and beneficially owned by such Optionee, free of all liens, claims, and encumbrances of every kind, accompanied by stock powers duly endorsed in blank by the record holder of the shares represented by such certificates, with signature guaranteed by a commercial bank or trust company or by a brokerage firm having a membership on a registered national stock exchange. Such notice may be delivered in person to the Secretary of the Company, or may be sent by mail to the Secretary of the Company, in which case delivery shall be deemed made on the date such notice is received. As promptly as practicable after receipt of such written notification and payment, the Company shall deliver to the Optionee certificates for the number of shares with respect to which such Option has been so exercised, issued in the Optionee's name; provided, that such delivery shall be deemed effected for all purposes when a stock transfer agent of the Company shall have deposited such certificates in the United States mail, addressed to the Optionee, at the address specified pursuant to this Paragraph 10. The delivery of certificates upon the exercise of Options may, in the discretion of the Committee, be subject to any reasonable conditions, including, but not limited to (a) payment to the Company by the person exercising such Option of the amount, determined by the Company, of any tax liability of the Company (including but not limited to federal and state income and employment taxes required to be withheld) resulting from such exercise, or from a sale or other disposition of the stock issued upon exercise of such Option (or a stock option granted under another plan of the Company), if such sale or other disposition might be a "disqualifying disposition" described in Section 422(a) of the Code and (b) agreement by the person exercising such Option to provide the Company with such information as the Company might reasonably request pertaining to such exercise, sale or other disposition. Except to the extent the election would impact qualification under Rule 16b-3, the Optionee may elect to have the Company accept or retain Stock as payment of an Optionee's tax liability to the Company, as described in (a), above. 11. Transferability of Options. Options shall not be transferable by the Optionee other than by will or under the laws of descent and distribution, and shall be exercisable, during the Optionee's lifetime, only by the Optionee or his legal guardian or representative. 12. Termination of Employment of Optionee. Except as may be otherwise expressly provided herein, Options shall terminate on such date as shall be selected by the Committee in its discretion and specified in the option agreement. If an Optionee is an employee of the Company or of a subsidiary corporation at the time an Option is granted, and, before the date of expiration of the Option, an employment relationship with either the Company or a subsidiary is severed, for any reason (except as otherwise provided for herein), the Option shall terminate thirty days following severance of the employment relationship. Whether authorized leave of absence, or absence on military or government service, shall constitute severance of an employment relationship with the Company or a subsidiary corporation and the Optionee, shall be determined by the Committee at the time thereof. If, before the date of expiration of a non-qualified Option, the Optionee shall be retired in good standing from the employ of the Company or a subsidiary for reasons of age or disability under the then established rules of the Company, the Option shall terminate on the earlier of such date of expiration or one year after the date of such retirement. In the event of such retirement, the Optionee shall have the right prior to the termination of such Option to exercise the Option to the extent to which he was entitled to exercise such Option immediately prior to such retirement; however, in the event that the Optionee has retired on or after attaining the age of sixty-two (62) years, the Optionee shall be entitled to exercise all or any part of such Option (without regard to any limitations imposed pursuant to Paragraph 9(b) hereof, but subject to Paragraph 9(a)). Upon the death of the Optionee, his executors, administrators, or any person or persons to whom his Option may be transferred by will or by the laws of descent and distribution, shall have the right, at any time prior to the earlier of the date of expiration or one year following the date of such death, to exercise the Option, in whole or in part (without regard to any limitations imposed pursuant to Paragraph 9(b) hereof, but subject to Paragraph 9(a)). The Committee shall be permitted, in its discretion, to grant to any employee an Option which is an incentive stock option or a non-qualified stock option with a provision that the Option shall continue in full force and effect as a non-qualified stock option with no modification of the option price, if the person's status with the Company or its subsidiary changes, but such person continues as a director or consultant of the Company. 13. Requirements of Law. The Company shall not be required to sell or issue any shares under any Option if the issuance of such shares shall constitute a violation by the Optionee or the Company of any provisions of any law or regulation of any governmental authority. 14. No Rights as Stockholder. No Optionee shall have rights as a Stockholder with respect to shares covered by any Option until the date of issuance of a stock certificate for such shares; and, except as otherwise provided in Paragraph 16 hereof, no adjustment for dividends, or otherwise, shall be made if the record date thereof is prior to the date of issuance of such certificate. 15. No Employment or Nomination Obligation. The granting of any Option shall not impose upon the Company or any subsidiary any obligation to continue to nominate an Optionee for election as a director or to employ or continue to employ any Optionee; and the right of the Company or any subsidiary to terminate the employment of any employee shall not be diminished or affected by reason of the fact that an Option has been granted to the employee. 16. Changes in the Company's Capital Structure. The existence of outstanding Options shall not affect in any way the right or power of the Company or its stockholders to make or authorize any or all adjustments, recapitalizations, reorganizations or other changes in the Company's capital structure or its business, or any merger or consolidation of the Company, or any issue of bonds, debentures, preferred or prior preference stock ahead of or affecting the Stock or the rights thereof, or the dissolution or liquidation of the Company, or any sale or transfer of all or any part of its assets or business, or any other corporate act or proceeding, whether of a similar character or otherwise. If the Company shall effect a subdivision or consolidation of shares or other capital readjustment, the payment of a stock dividend, or other increase or reduction of the number of shares of the Stock outstanding, without receiving compensation therefor in money, services or property, then (a) the number, class, and per share price of shares of stock subject to outstanding Options hereunder shall be appropriately adjusted in such a manner as to entitle an Optionee to receive upon exercise of an Option, for the same aggregate cash consideration, an equivalent total number and class of shares as he would have received had he exercised his Option in full immediately prior to the event requiring the adjustment; and (b) the number and class of shares then reserved for issuance under the Plan shall be adjusted by substituting for the total number and class of shares of Stock then reserved that number and class of shares of stock that would have been received by the owner of an equal number of outstanding shares of each class of Stock as the result of the event requiring the adjustment. After a merger of one or more corporations into the Company, or after a consolidation of the Company and one or more corporations in which the Company shall be the surviving corporation, each holder of an outstanding Option shall, at no additional cost, be entitled upon exercise of such Option to receive (subject to any required action by stockholders) in lieu of the number and class of shares as to which such Option would have been so exercisable in the absence of such event, the number and class of shares of stock or other securities to which such holder would have been entitled pursuant to the terms of the agreement of merger or consolidation if, immediately prior to such merger or consolidation, such holder had been the holder of record of the number and class of shares of Stock equal to the number and class of shares as to which such Option shall be so exercised. If the Company is merged into or consolidated with another corporation under circumstances where the Company is not the surviving corporation, or if the Company sells or otherwise disposes of substantially all its assets to another corporation and is liquidated while unexercised Options remain outstanding under the Plan, (i) subject to the provisions of clause (iii) below, after the effective date of such merger, consolidation or sale and liquidation, as the case may be, each holder of an outstanding Option shall be entitled, upon exercise of such Option, to receive, in lieu of shares of the Stock, shares of such stock or other securities as the holders of shares of such class of Stock received pursuant to the terms of the merger, consolidation or sale; (ii) the Committee may waive any limitations imposed pursuant to Paragraph 9(b) hereof so that all Options, from and after a date prior to the effective date of such merger, consolidation, or sale and liquidation, as the case may be, specified by the Committee, shall be exercisable in full, subject to Paragraph 9(a) hereof; and (iii) all outstanding Options may be canceled by the Committee as of the effective date of any such merger, consolidation or sale and liquidation provided that (x) notice of such cancellation shall be given to each holder of an Option and (y) each holder of an Option shall have the right to exercise such Option in full (without regard to any limitations imposed pursuant to Paragraph 9(b) hereof, but subject to Paragraph 9(a)) during a 30-day period preceding the effective date of such merger, consolidation or sale and liquidation. Except as herein before expressly provided, the issue by the Company of shares of stock of any class, or securities convertible into shares of stock of any class, for cash or property, or for labor or services either upon direct sale or upon the exercise of rights or warrants to subscribe therefor, or upon conversion of shares or obligations of the Company convertible into such shares or other securities, shall not affect, and no adjustment by reason thereof shall be made with respect to, the number, class or price of shares of Stock then subject to outstanding Options. 17. Stock Awards and Restricted Stock Grants. A stock award consists of the issuance by the Company to a Participant of shares of Stock, without other payment therefor, in lieu of certain cash compensation or as additional compensation for his services to the Company. Restricted stock grants consist of shares of Stock which are issued by the Company to a Participant at a price which may be below their fair market value or for no payment, but subject to restrictions on their sale or other transfer by the Participant. The issuance of Stock pursuant to stock awards and restricted stock grants shall be subject to the following terms and conditions: (i) Number of Shares. Subject to Section 3, the number of shares to be issued by the Company to a Participant pursuant to a stock award or restricted stock grant shall be determined by the Committee. (ii) Sale Price. The Committee shall determine the prices, if any, at which shares of restricted stock shall be issued to a Participant, which may vary from time to time and among Participants and which may be below the fair market value of such shares of Stock at the date of sale and which may be zero. (iii) Restrictions. All shares of restricted stock issued hereunder shall be subject to such restrictions as the Committee may determine, including, without limitation any or all of the following: (a) a prohibition against the sale, transfer, pledge or other encumbrance of the shares of restricted stock, such prohibition to lapse (i) at such time or times as the Committee shall determine (whether in annual or more frequent installments, at the time of the death, disability or retirement of the holder of such shares, or otherwise) or (ii) upon written certification by the Committee of the attainment of certain performance measurements; (b) a requirement that the holder of shares of restricted stock forfeit, or (in the case of shares sold to a Participant) resell back to the Company at his cost, all or a part of such shares in the event of termination of the holder's employment during any period in which such shares are subject to restrictions; (c) a prohibition against employment of the holder of such restricted stock by any competitor of the Company or its affiliates, or against such holder's dissemination of any secret or confidential information belonging to the Company or a subsidiary of the Company; (iv) No Participant shall exercise the election permitted by Section 83(b) of the Code without the express written approval of the Committee. Any Participant making such election without such written approval shall forfeit all shares of restricted stock granted to him. Shares of restricted stock shall be registered in the name of the Participant and deposited, together with a stock power endorsed in blank, with the Company. Each such certificate shall bear a legend in substantially the following form: "The transferability of this certificate and the shares of Common Stock represented by it are subject to the terms and conditions (including conditions of forfeiture) contained in the 1993 Stock Incentive Plan of the Company, and an agreement entered into between the registered owner and the Company. A copy of the Plan and agreement is on file in the office of the Secretary of the Company." At the end of any time period during which the shares of restricted stock are subject to forfeiture and restrictions on transfer or upon the attainment of certain performance measurements, such shares will be delivered free of all restrictions to the Participant or to the Participant's legal representative, beneficiary or heir. Subject to the terms and conditions of the Plan, each Participant receiving restricted stock shall have all the rights of a stockholder with respect to shares of stock during any period in which such shares are subject to forfeiture and restrictions on transfer, including without limitation, the right to vote such shares. By accepting a stock award or a restricted stock grant, the Participant agrees to remit when due any federal and state income and employment taxes required to be withheld. Dividends paid in cash or property other than Stock with respect to shares of restricted stock shall be paid to the Participant currently or, at the election of the Participant, be reinvested by the Participant under the Company's Dividend Reinvestment Plan. Shares purchased with reinvested dividends shall not be restricted. 18. Termination and Amendment of the Plan. The Board of Directors of the Company may amend, terminate or suspend the Plan at any time, in its sole and absolute discretion; provided, however, that to the extent required to qualify the Plan under Rule 16b-3, no amendment that would (a) materially increase the number of shares of Stock that may be issued under the Plan, (b) materially modify the requirements as to eligibility for participation in the Plan, or (c) otherwise materially increase the benefits accruing to Participants under the Plan shall be made without the approval of the Company's stockholders. 19. Written Agreement. Each Option or restricted stock granted hereunder shall be embodied in a written agreement, which shall be subject to the terms and conditions prescribed above and shall be signed by the Participant and by the Chairman of the Board, the Vice Chairman, the President or any Vice President of the Company for and in the name and on behalf of the Company. Stock awards granted hereunder may be embodied in such a written agreement. Such an Option, stock award or restricted stock agreement shall contain such other provisions as the Committee in its discretion shall deem advisable. 20. Indemnification of Committee. The Company shall indemnify each present and future member of the Committee against, and each member of the Committee shall be entitled without further act on his part to indemnity from the Company for, all expenses (including the amount of judgments and the amount of approved settlements made with a view to the curtailment of costs of litigation, other than amounts paid to the Company itself) reasonably incurred by him in connection with or arising out of any action, suit or proceeding in which he may be involved by reason of his being or having been a member of the Committee, whether or not he continues to be such member of the Committee at the time of incurring such expenses; provided, however, that such indemnity shall not include any expenses incurred by any such member of the Committee (a) in respect of matters as to which he shall be finally adjudged in any such action, suit or proceeding to have been guilty of gross negligence or willful misconduct in the performance of his duty as such member of the Committee, or (b) in respect of any matter in which any settlement is effected, to an amount in excess of the amount approved by the Company on the advice of its legal counsel; and provided further, that no right of indemnification under the provisions set forth herein shall be available to or enforceable by any such member of the Committee unless, within sixty (60) days after institution of any such action, suit or proceeding, he shall have offered the Company, in writing, the opportunity to handle and defend same at its own expense. The foregoing right of indemnification shall inure to the benefit of the heirs, executors or administrators of each such member of the Committee and shall be in addition to all other rights to which such member of the Committee may be entitled as a matter of law, contract, or otherwise. 21. Adoption, Approval and Effective Date of Plan. The Plan shall be considered adopted and shall become effective on the date the Plan is approved by the Board of Directors of the Company; provided, however, that the Plan and any grants of Options, stock awards or restricted stock grants thereunder, shall be void, if the stockholders of the Company shall not have approved adoption of the Plan within twelve months after such effective date. 22. Governing Law. This Plan and all determinations made and actions taken pursuant hereto shall be governed by the laws of the State of Delaware, without reference to principles of conflict of laws, and shall be construed accordingly. 23. Compliance with SEC Regulations. It is the Company's intent that the Plan comply in all respects with Rule 16b-3, and any successor rule pursuant thereto. If any provision of this Plan is later found not to be in compliance with the Rule, the provision shall be deemed null and void. All grants of Options and Stock and all exercises of Options under this Plan shall be executed in accordance with the requirements of Section 16 of the Securities Exchange Act of 1934, as amended, and any regulations promulgated thereunder. EX-4 4 EXHIBIT 4(e) BROWNING-FERRIS INDUSTRIES, INC. 1993 Non-Employee Director Stock Plan 1. Purpose. The 1993 Non-Employee Director Stock Plan (the "Plan") is to benefit Browning-Ferris Industries, Inc. (the "Company") and its subsidiary corporations by offering its non-employee directors (the "Eligible Directors") an opportunity to become owners of the Common Stock, $.16-2/3 par value, of the Company (the "Stock") and is intended to advance the best interests of the Company by increasing their proprietary interest in the success of the Company and its subsidiary corporations. 2. Administration. The Plan shall be administered by the Board of Directors of the Company (the "Board"). Subject to the terms of the Plan, the Board shall have the power to construe the provisions of the Plan, or of options granted hereunder (the "Options") or Stock issued hereunder, to determine all questions arising thereunder, and to adopt and amend such rules and regulations for administering the Plan as the Board deems desirable. 3. Available Shares. The total amount of the Stock with respect to which Options and Stock paid in lieu of directors' annual retainer that may be granted under this Plan shall not exceed in the aggregate Two Hundred and Fifty Thousand (250,000) shares; provided, that the class and aggregate number of shares of Stock which may be granted hereunder shall be subject to adjustment in accordance with the provisions of Paragraph 17 hereof. Such shares of Stock may be treasury shares or authorized but unissued shares of Stock. In the event that any outstanding Option for any reason shall expire or is terminated or cancelled, the shares of Stock allocable to the unexercised portion of such Option may again be subject to an Option or Options under the Plan. 4. Authority to Grant Options and Stock. All Options granted under the Plan shall be non-qualified stock options. No Options shall be granted under the Plan subsequent to December 6, 2003. The only Options and Stock under the Plan which may be granted are those which are granted after both adoption of the Plan and approval thereof by the stockholders of the Company within twelve months after the date of such adoption, all as provided in Paragraph 21 hereof. 5. Eligibility for Stock Options and Stock. The individuals who shall be eligible to receive Options under the Plan shall be each Eligible Director of the Company. 6. Option Grant Size and Grant Dates. Initial Grants - An Option to purchase 5,000 shares of Stock (as adjusted pursuant to Paragraph 17) shall be granted to each Eligible Director the day following the Annual Meeting at which such Director is first elected or the day following the first Annual Meeting after such Eligible Director is first elected or appointed by the Board to be a Director, whichever is applicable (an "Initial Grant"); provided, that if an Eligible Director who previously received an Initial Grant terminates service as a Director and is subsequently elected or appointed to the Board, such Director shall not be eligible to receive a second Initial Grant, but shall be eligible to receive only Annual Grants as provided in this Paragraph 6, beginning with the Annual Meeting held during the fiscal year immediately following the year in which such Director was reelected or appointed. Annual Grants - An Option to purchase 2,500 shares (as adjusted pursuant to Paragraph 17) shall be granted each year, the day following the Annual Meeting, to each director who is an Eligible Director at such time (except as set forth above) and who is not receiving an Initial Grant (each, an "Annual Grant"). If however, the General Counsel of the Company determines, in his sole discretion, that the Company is in possession of material, nonpublic information about the Company, then the Initial and Annual Grant to the Eligible Directors shall be suspended until the second trading day after public dissemination of such information. 7. Option Price; Fair Market Value. The price at which shares of Stock may be purchased by an Eligible Director pursuant to an Option (the "Optionee") shall be the fair market value of the shares of Stock on the date the Option is granted. For all purposes of this Plan, the "fair market value" of the Stock shall be the mean of the highest and lowest selling prices of the Stock as reported in The Wall Street Journal for the last trading day before the date as of which such fair market value is to be determined. No Option may be repriced. 8. Duration of Options. The term of each Option hereunder shall be ten years, and no Option shall be exercisable after the expiration of ten years from the date such Option is granted. An Option shall expire immediately following the last day on which such Option is exercisable pursuant to this Paragraph 8. 9. Amount Exercisable. (a) No Option shall be exercisable earlier than six months from the date of grant. (b) An Option becomes exercisable according to the following schedule: Period from Portion of Grant That the Date the Becomes Exercisable Option is Granted after Such Period One year after grant 25% Two years after grant 50% Three years after grant 75% Four years after grant 100% 10. Exercise of Options. Options shall be exercised by the delivery of written notice to the Company setting forth the number of shares of Stock with respect to which the Option is to be exercised, together with cash, wire transfer, certified check, bank draft or postal or express money order payable to the order of the Company (the "Acceptable Funds") for an amount equal to the Option price of such shares of Stock, or at the election of the Optionee, by exchanging shares of Stock owned by the Optionee, so long as the exchanged shares of Stock plus Acceptable Funds paid, if any, have a total fair market value (determined in accordance with Paragraph 7, as of the date of exercise) equal to the purchase prices for such shares to be acquired upon exercise of said Option, and specifying the address to which the certificates for such shares are to be mailed. Whenever an Option is exercised by exchanging shares of Stock theretofore owned by the Optionee: (1) no shares of Stock received upon exercise of that Option thereafter may be exchanged to pay the Option price for additional shares of Stock within the following six months; and (2) the Optionee shall deliver to the Company certificates registered in the name of such Optionee representing a number of shares of Stock legally and beneficially owned by such Optionee, free of all liens, claims, and encumbrances of every kind, accompanied by stock powers duly endorsed in blank by the record holder of the shares represented by such certificates, with signature guaranteed by a commercial bank or trust company or by a brokerage firm having a membership on a registered national stock exchange. Such notice may be delivered in person to the Secretary of the Company, or may be sent by mail to the Secretary of the Company, in which case delivery shall be deemed made on the date such notice is received. As promptly as practicable after receipt of such written notification and payment, the Company shall deliver to the Optionee certificates for the number of shares with respect to which such Option has been so exercised, issued in the Optionee's name; provided, that such delivery shall be deemed effected for all purposes when a stock transfer agent of the Company shall have deposited such certificates in the United States mail, addressed to the Optionee, at the address specified pursuant to this Paragraph 10. The delivery of certificates upon the exercise of Options is subject to the condition that the person exercising such Option provide the Company with such information as the Company might reasonably request pertaining to such exercise, sale or other disposition. 11. Transferability of Options. Options shall not be transferable by the Optionee other than by will or under the laws of descent and distribution, and shall be exercisable, during the Optionee's lifetime, only by the Optionee or his legal guardian or representative. 12. Termination of Directorship of Optionee. If, before the date of expiration of the Option, the Optionee shall cease to be a director of the Company, the Option shall terminate on the earlier of such date of expiration or one year after the date of ceasing to serve as a director. In such event, the Optionee shall have the right prior to the termination of such Option to exercise the Option to the extent to which he was entitled to exercise such Option immediately prior to ceasing to serve as a director; however, in the event that the Optionee has ceased to serve as a director on or after attaining the age of sixty-two (62) years, the Optionee shall be entitled to exercise all or any part of such Option (without regard to any limitations imposed pursuant to Paragraph 9(b) hereof, but subject to Paragraph 9(a)). Upon the death of the Optionee, his executors, administrators, or any person or persons to whom his Option may be transferred by will or by the laws of descent and distribution, shall have the right, at any time prior to the earlier of the date of expiration or one year following the date of such death, to exercise the Option, in whole or in part (without regard to any limitations imposed pursuant to Paragraph 9(b) hereof, but subject to Paragraph 9(a)). 13. Issuance of Shares in Lieu of Payment of Retainer Fee. One-third of each Eligible Director's annual retainer fee for service as a member of the Company's Board of Directors shall be paid in Stock. Such shares shall be issued the day following each Annual Meeting or the day following the first Annual Meeting after such Eligible Director is first elected or appointed by the Board to be a director, whichever is applicable. If, however, the General Counsel of the Company determines, in his sole discretion, that the Company is in possession of material, nonpublic information about the Company, then such issuance shall be delayed until the second trading day after public dissemination of such information. The number of shares to be issued shall be that number equal to one-third of the annual retainer for service as a member of the Company's Board of Directors divided by the fair market value of the Stock as determined pursuant to Paragraph 7 above. No fractional shares shall be issued, but the number of shares shall be rounded up to the nearest whole share. The Stock in lieu of retainer fee issued under this Paragraph shall have a restriction period of three (3) years. Notwithstanding any other provision of this Paragraph, such Stock shall be subject to the following terms and conditions: (a) Stock in lieu of retainer fee shall be represented by a stock certificate registered in the name of the holder. The holder shall have the right to enjoy all stockholder rights during the restriction period (including the right to vote the shares and the right to receive any cash dividends) with the exception that: (i) The holder may not sell, transfer, pledge or assign the Stock during the restriction period; (ii) The Company will retain custody of the certificate for the Stock during the restriction period; and (iii) A breach of the terms and conditions during the restriction period shall cause a forfeiture of the Stock. (b) All restrictions shall lapse and the holder of such Stock shall be entitled to the delivery of a stock certificate or certificates upon the earliest of the following: (i) Three (3) years from the date the applicable shares are issued in the name of to such holder; (ii) The date of the holder's death or disability; (iii) The date the holder, after being nominated by the Board, is not elected by the stockholders in an election for the Board; or (iv) The date on which the Board determines that the holder will not be nominated for election to the Board. (c) Restricted stock shall be entirely forfeited in the event that during a restriction period the holder: (i) Resigns (other than by reason of disability) or is removed for cause from the Board during his elected term; or (ii) Refuses to stand for an election to the Board after having been nominated by the Board or withdraws his name from consideration for nomination. For purposes of subsection (b) above, "disability" shall mean long term disability as determined under rules and procedures that apply under the Company's long term disability plan then in effect. For purposes of subsection (c) above, a holder shall be considered to have been removed for cause if and only if he is dismissed on account of any act of (a) fraud or intentional misrepresentation, or (b) embezzlement, misappropriation, or conversion of assets or opportunities of the Company or any subsidiary of the Company. 14. Requirements of Law. The Company shall not be required to issue any shares under any Option or as partial payment for annual retainer fees if the issuance of such shares shall constitute a violation by the Optionee or the Company of any provisions of any law or regulation of any governmental authority. 15. No Rights as Stockholder. No Optionee shall have rights as a Stockholder with respect to shares covered by any Option until the date of issuance of a stock certificate for such shares; and, except as otherwise provided in Paragraph 17 hereof, no adjustment for dividends, or otherwise, shall be made if the record date thereof is prior to the date of issuance of such certificate. 16. No Employment or Nomination Obligation. The granting of any Option shall not impose upon the Company or its stockholders any obligation to employ any Optionee or to continue to nominate any Optionee for election as a director of the Company. 17. Changes in the Company's Capital Structure. The existence of outstanding Options shall not affect in any way the right or power of the Company or its stockholders to make or authorize any or all adjustments, recapitalizations, reorganizations or other changes in the Company's capital structure or its business, or any merger or consolidation of the Company, or any issue of bonds, debentures, preferred or prior preference stock ahead of or affecting the Stock or the rights thereof, or the dissolution or liquidation of the Company, or any sale or transfer of all or any part of its assets or business, or any other corporate act or proceeding, whether of a similar character or otherwise. If the Company shall effect a subdivision or consolidation of shares or other capital readjustment, the payment of a stock dividend, or other increase or reduction of the number of shares of the Stock outstanding, without receiving compensation therefor in money, services or property, then (a) the number, class, and per share price of shares of Stock subject to outstanding Options hereunder shall be appropriately adjusted in such a manner as to entitle an Optionee to receive upon exercise of an Option, for the same aggregate cash consideration, an equivalent total number and class of shares as he would have received had he exercised his Option in full immediately prior to the event requiring the adjustment; and (b) the number and class of shares then reserved for issuance under the Plan shall be adjusted by substituting for the total number and class of shares of Stock then reserved that number and class of shares of Stock that would have been received by the owner of an equal number of outstanding shares of each class of Stock as the result of the event requiring the adjustment. After a merger of one or more corporations into the Company, or after a consolidation of the Company and one or more corporations in which the Company shall be the surviving corporation, each holder of an outstanding Option shall, at no additional cost, be entitled upon exercise of such Option to receive (subject to any required action by stockholders) in lieu of the number and class of shares as to which such Option would have been so exercisable in the absence of such event, the number and class of shares of stock or other securities to which such holder would have been entitled pursuant to the terms of the agreement of merger or consolidation if, immediately prior to such merger or consolidation, such holder had been the holder of record of the number and class of shares of Stock equal to the number and class of shares as to which such Option shall be so exercised. If the Company is merged into or consolidated with another corporation under circumstances where the Company is not the surviving corporation, or if the Company sells or otherwise disposes of substantially all its assets to another corporation and is liquidated while unexercised Options remain outstanding under the Plan, (i) after the effective date of such merger, consolidation or sale and liquidation, as the case may be, each holder of an outstanding Option shall be entitled, upon exercise of such Option, to receive, in lieu of shares of the Stock, shares of such stock or other securities as the holders of shares of such class of Stock received pursuant to the terms of the merger, consolidation or sale; and (ii) notwithstanding Paragraph 9(b) hereof, but subject to Paragraph 9(a), all Options, from and after the date of any agreement regarding such merger, consolidation, or sale and liquidation, as the case may be, shall be exercisable in full prior to the effective date of such merger, consolidation or sale and liquidation. Except as herein before expressly provided, the issue by the Company of shares of stock of any class, or securities convertible into shares of stock of any class, for cash or property, or for labor or services either upon direct sale or upon the exercise of rights or warrants to subscribe therefor, or upon conversion of shares or obligations of the Company convertible into such shares or other securities, shall not affect, and no adjustment by reason thereof shall be made with respect to, the number, class or price of shares of Stock then subject to outstanding Options. 18. Termination and Amendment of Plan. The Board of Directors of the Company may amend, terminate or suspend the Plan at any time, in its sole and absolute discretion; provided, however, to the extent required to qualify the Plan under Rule 16b-3 promulgated under Section 16 of the Securities Exchange Act of 1934, as amended, no amendment shall be made more than once every six months that would change the amount, price or timing of the Initial and Annual Grants or the Stock issued in lieu of annual retainer fee, other than to comport with changes in the Internal Revenue Code of 1986, as amended, the Employee Retirement Income Security Act or the rules and regulations promulgated thereunder; and provided, further, to the extent required to qualify the Plan under Rule 16b-3, no amendment that would (a) materially increase the number of shares of the Stock that may be issued under the Plan, (b) materially modify the requirements as to eligibility for participation in the Plan, or (c) otherwise materially increase the benefits accruing to participants under the Plan, shall be made without the approval of the Company's stockholders. 19. Written Agreement. Each Option granted hereunder or Stock issued hereunder shall be embodied in a written agreement, which shall be subject to the terms and conditions prescribed above and shall be signed by the Eligible Director and by the Chairman of the Board, the Vice Chairman, the President or any Vice President of the Company for and in the name and on behalf of the Company. 20. Indemnification of Board. The Company shall indemnify each present and future member of the Board against, and each member of the Board shall be entitled without further act on his part to indemnity from the Company for, all expenses (including the amount of judgments and the amount of approved settlements made with a view to the curtailment of costs of litigation, other than amounts paid to the Company itself) reasonably incurred by him in connection with or arising out of any action, suit or proceeding in which he may be involved by reason of his being or having been a member of the Board, whether or not he continues to be such member of the Board at the time of incurring such expenses; provided, however, that such indemnity shall not include any expenses incurred by any such member of the Board (a) in respect of matters as to which he shall be finally adjudged in any such action, suit or proceeding to have been guilty of gross negligence or willful misconduct in the performance of his duty as such member of the Board, or (b) in respect of any matter in which any settlement is effected, to an amount in excess of the amount approved by the Company on the advice of its legal counsel; and provided further, that no right of indemnification under the provisions set forth herein shall be available to or enforceable by any such member of the Board unless, within sixty (60) days after institution of any such action, suit or proceeding, he shall have offered the Company, in writing, the opportunity to handle and defend same at its own expense. The foregoing right of indemnification shall inure to the benefit of the heirs, executors or administrators of each such member of the Board and shall be in addition to all other rights to which such member of the Board may be entitled as a matter of law, contract, or otherwise. 21. Adoption, Approval and Effective Date of Plan. The Plan shall be considered adopted and shall become effective on the date the Plan is approved by the stockholders of the Company. 22. Governing Law. This Plan and all determinations made and actions taken pursuant hereto shall be governed by the laws of the State of Delaware, without reference to principles of conflict of laws, and shall be construed accordingly. 23. Compliance with SEC Regulations. It is the Company's intent that the Plan comply in all respects with Rule 16b-3, and any successor rule pursuant thereto. If any provision of this Plan is later found not to be in compliance with the Rule, the provision shall be deemed null and void. All grants of Options and Stock and all exercises of Options under this Plan shall be executed in accordance with the requirements of Section 16 of the Securities Exchange Act of 1934, as amended, and any regulations promulgated thereunder. EX-4 5 Exhibit 4(O) BROWNING-FERRIS INDUSTRIES, INC. 1993 NON-EMPLOYEE DIRECTOR STOCK PLAN NON-QUALIFIED STOCK OPTION Under the terms and conditions of the 1993 Non-Employee Director Stock Plan (the "Plan") of Browning-Ferris Industries, Inc., a Delaware corporation (the "Company"), a copy of which is attached hereto and incorporated herein by reference, the Company hereby grants to ____________, effective on the Date of Grant indicated below, the option to purchase _____ shares of the Company's Common Stock, $.16-2/3 par value (the "Common Stock"), at the price of ______ per share, subject to adjustment as provided in the Plan. This option shall be a non-qualified stock option for a term commencing on the Date of Grant and ending ________________________. Further, this option shall terminate on the earlier of such expiration date or a period of thirty (30) days following the severance of the employment or the affiliate relationship, as the case may be, between the Company and the optionee for any reason, with or without cause, other than death or retirement in the case of an employee as set forth in more detail in the Plan. During the thirty day period following the severance of the employment or affiliate relationship, the optionee may exercise the option, but only with respect to the number of shares of Common Stock that could have been acquired under the option on the date of severance of the employment or affiliate relationship. This option shall not be exercisable to any extent by the optionee unless and until the Plan is approved by the Company's shareholders, a registration statement with respect to the Common Stock covered by the Plan shall be effective under the Securities Act of 1933, as amended, and the Common Stock is listed for issuance with the various stock exchanges. Subject to the satisfaction of the foregoing conditions precedent, this option shall be exercisable during each yearly period following the Date of Grant to the extent of the cumulative percentage of the shares covered by this option as indicated in the following table: Yearly Period Following Cumulative Percentage Date of Grant of Options Exercisable First 0% Second 25% Third 50% Fourth 75% Thereafter 100% The optionee hereby accepts and agrees to be bound by all the terms and conditions of the Plan. BROWNING-FERRIS INDUSTRIES, INC. Date:____________________ By:_________________________________ (Date of Grant) Gerald K. Burger Vice President and Secretary ACCEPTED: Optionee's Permanent Mailing Address: (Please print or type) ___________________________________ ___________________________________ (Please print or type full name) ___________________________________ ___________________________________ Full Signature of Optionee OPTIONEE SOCIAL SECURITY NUMBER ___________________________________ EX-4 6 Exhibit 4(N) BROWNING-FERRIS INDUSTRIES, INC. 1993 STOCK INCENTIVE PLAN AGREEMENT NON-QUALIFIED STOCK OPTION Under the terms and conditions of the 1993 Stock Incentive Plan (the "Plan") of Browning-Ferris Industries, Inc., a Delaware corporation (the "Company"), a copy of which is attached hereto and incorporated herein by reference, the Company hereby grants to _________________, effective on the Date of Grant indicated below, the option to purchase _____________ shares of the Company's Common Stock, $.16-2/3 par value (the "Common Stock"), at the price of ______________ per share, subject to adjustment as provided in the Plan. This option shall be a non-qualified stock option for a term commencing on the Date of Grant and ending ________________________. Further, this option shall terminate on the earlier of such expiration date or a period of thirty (30) days following the severance of the employment or the affiliate relationship, as the case may be, between the Company and the optionee for any reason, with or without cause, other than death or retirement in the case of an employee as set forth in more detail in the Plan. During the thirty day period following the severance of the employment or affiliate relationship, the optionee may exercise the option, but only with respect to the number of shares of Common Stock that could have been acquired under the option on the date of severance of the employment or affiliate relationship. This option shall not be exercisable to any extent by the optionee unless and until the Plan is approved by the Company's shareholders, a registration statement with respect to the Common Stock covered by the Plan shall be effective under the Securities Act of 1933, as amended, and the Common Stock is listed for issuance with the various stock exchanges. Subject to the satisfaction of the foregoing conditions precedent, this option shall be exercisable during each yearly period following the Date of Grant to the extent of the cumulative percentage of the shares covered by this option as indicated in the following table: Yearly Period Following Cumulative Percentage Date of Grant of Options Exercisable First 0% Second 25% Third 50% Fourth 75% Thereafter 100% The optionee hereby accepts and agrees to be bound by all the terms and conditions of the Plan. BROWNING-FERRIS INDUSTRIES, INC. Date:_________________ By:_______________________________ (Date of Grant) Gerald K. Burger Vice President and Secretary ACCEPTED: Optionee's Permanent Mailing Address: (Please print or type) ____________________________________ ____________________________________ (Please print or type full name) ____________________________________ ____________________________________ Full Signature of Optionee OPTIONEE SOCIAL SECURITY NUMBER _______________________________ EX-5 7 EXHIBIT 5 FULBRIGHT & JAWORSKI L.L.P. a registered limited liability partnership Houston 1301 McKinney Street, Suite 5100 Washington, D.C. Houston, Texas 77010-3095 Austin Telephone: 713/651-5151 San Antonio Telex: 76-2829 Dallas Facsimile: 713/651-5246 New York Los Angeles London Zurich Hong Kong April 25, 1994 Browning-Ferris Industries, Inc. 757 N. Eldridge Houston, Texas 77079 Gentlemen: We have acted as counsel for Browning-Ferris Industries, Inc., a Delaware corporation (the "Company"), in connection with its filing with the Securities and Exchange Commission of a Registration Statement on Form S-8 (the "Registration Statement") with respect to the registration under the Securities Act of 1933, as amended, of 7,250,000 shares of the Company's common stock, $.16 2/3 par value per share, including the preferred stock purchase rights associated therewith (collectively, the "Shares"), of which 7,000,000 Shares are to be offered upon the terms and subject to the conditions set forth in the Company's 1993 Stock Incentive Plan (the "Incentive Plan") and 250,000 Shares are to be offered upon the terms and subject to the conditions set forth in the Company's 1993 Non-Employee Director Stock Plan (the "Director Plan"). We have examined (i) the Restated Certificate of Incorporation and By-Laws of the Company, each as amended to date, (ii) the Incentive Plan and the Director Plan, (iii) the Registration Statement, and (iv) such certificates, statutes and other instruments and documents as we considered appropriate for purposes of the opinions hereafter expressed. In connection with this opinion, we have assumed the authenticity and completeness of all records, certificates and other instruments submitted to us as originals, the conformity to original documents of all records, certificates and other instruments submitted to us as copies, the authenticity and completeness of the originals of those records, certificates and other instruments submitted to us as copies and the correctness of all statements of fact contained in all records, certificates and other instruments that we have examined. Based upon and subject to the foregoing, we are of the opinion that the Shares have been duly authorized and, when issued in accordance with the terms of the Incentive Plan or the Director Plan, as the case may be, will be validly issued, fully paid and nonassessable. We hereby consent to the filing of this opinion as an exhibit to the Registration Statement. Very truly yours, Fulbright & Jaworski L.L.P. EX-23 8 ARTHUR ANDERSEN & CO. Exhibit 23(a) CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS As independent public accountants, we hereby consent to the incorporation by reference in this Registration Statement on Form S-8 of our report dated December 7, 1993, included in Browning-Ferris Industries, Inc.'s Annual Report on Form 10-K for the year ended September 30, 1993, and to all references to our Firm included in this Registration Statement. ARTHUR ANDERSEN & CO. Houston, Texas April 27, 1994 -----END PRIVACY-ENHANCED MESSAGE-----